Case 3:20-cv-00569 Document 1 Filed 04/27/20 Page 1 of 71

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER,

:

JACKIE MADORE; and

:

KENNETH CASSIDY, individually,

:

and on behalf of all others similarly situated, :

:

Petitioners,

:

:

v.

:

:

D. EASTER, Warden of Federal

:

Correctional Institution at Danbury, and :

MICHAEL CARVAJAL, Director of the :

Federal Bureau of Prisons, in their official :

capacities

:

:

Respondents.

:

Civ. No. _______ April 27, 2020

PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2241 AND
REQUEST FOR EMERGENCY ORDER OF ENLARGEMENT PRELIMINARY STATEMENT
The Federal Correctional Center at Danbury (“FCI Danbury”) is a low security federal correctional institution located in Danbury, Connecticut. That city, within the New York City metropolitan area, is part of the epicenter of our nation’s struggle with the novel COVID-19 virus and resulting coronavirus disease (“COVID-19”).
As COVID-19 ravages the New York Metropolitan area, the risks posed by COVID-19 to people confined in prisons, working in prison, and their communities are stark and alarming. For reasons beyond their control, people in jails and prisons cannot practice social distancing, control their exposure to large groups, practice increased hygiene, wear protective clothing, obtain

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specific products for cleaning or laundry, avoid high-touch surfaces, or sanitize their own environment. And those problems are no more evident than at FCI Danbury, a prison consisting of a men’s low security complex, a women’s low-security satellite facility, and a women’s minimum security satellite facility, which has been one of the hardest hit prisons run by the Federal Bureau of Prisons nationwide.
Petitioners bring this action against the Warden of FCI Danbury and the Director of the Federal Bureau of Prisons (“BOP”) on behalf of themselves and the class of prisoners held at FCI Danbury who are at imminent risk of contracting COVID-19, which feeds on precisely the unsafe, congregate conditions in which they are held. Respondents are aware of the grave dangers posed by COVID-19 and have failed to implement measures to comply with their constitutional obligations to those in their custody. Because of their unlawful and unconstitutional confinement, Petitioners seek emergency orders requiring a two-part response, the immediate transfer of the most medically vulnerable individuals to home confinement or other appropriate settings and immediate implementation for those who remain of the social distancing and hygiene measures essential to lowering the risk of the disease and of death.
PARTIES 1. Petitioner Dianthe Martinez-Brooks, BOP Register Number 71331-050, is a 50 year-old woman who, at all times relevant herein has been in the custody of the BOP at FCI Danbury, and is currently housed in FCI Danbury’s women’s minimum-security camp (the “camp”). Ms. Martinez-Brooks suffers from systematic lupus erythematosus, an inflammatory autoimmune disease of the connective tissue, for which she takes corticosteroids that has resulted in her being immunocompromised. Ms. Martinez-Brooks also suffers from asthma and
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hypertension. All three of those diagnosed medical conditions place Ms. Martinez-Brooks at significantly heightened risk of severe illness or death in the event she becomes infected with COVID-19.
2. Petitioner Rejeanne Collier, BOP Register Number 21263-05, is a 64 year-old woman who, at all times relevant herein, has been in the custody of the BOP at FCI Danbury, and is currently housed in FCI Danbury’s women’s minimum security camp. Ms. Collier is at heightened risk of mortality from COVID-19 because she suffers from lupus and hypertension and, while in custody, she has been treated for both intestinal cancer and a spot on her lung. She also suffers from hepatitis C and hypertension.
3. Petitioner Jackie Madore, BOP Register Number 08721-036, is a 50 year-old woman who, at all times relevant herein, has been in the custody of the BOP at FCI Danbury, and is currently housed in the low security satellite facility (“FSL”). She transferred to that building to participate in the Residential Drug Abuse Program (RDAP), which is currently suspended. Ms. Madore is at heightened risk of mortality from COVID-19 due to hypertension. She also suffers from hypothyroidism, and hepatitis C.
4. Petitioner Kenneth Cassidy, BOP Register Number 48169-054, is a 54 year-old man who, at all times relevant herein, has been in the custody of the BOP at FCI Danbury, and is currently housed in FCI Danbury’s men’s facility. Mr. Cassidy has significant cardiovascular issues, including ischemic heart disease, unstable angina, and hypertension. He has suffered three heart attacks. He has chronic bronchial asthma and other respiratory problems which have resulted in multiple bouts of pneumonia. He is also morbidly obese. Each of these conditions
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places Mr. Cassidy at dramatically heightened risk of death from COVID-19; the combination of all these conditions creates exponential danger.
5. Respondent D. Easter is the Warden at FCI Danbury and has oversight responsibility for all three units in the facility. As Warden of FCI Danbury, Respondent Easter is responsible for and oversees all day-to-day activity at FCI Danbury, and all aspects of the operation and of the functioning of FCI Danbury. Her responsibilities include ensuring the safety of all in the institution and ensuring the orderly running of the institution. Respondent Easter is aware of the harms of COVID-19, but she has adopted and enforced a policy that leaves Petitioners and all those similarly situated exposed to infection, severe illness, and death due to COVID-19. Respondent Easter is the immediate physical custodian responsible for the detention of the Petitioners at FCI Danbury. She is sued in her official capacity.
6. Respondent Michael Carvajal is the Director of the Federal Bureau of Prisons and, in that capacity, is responsible for the safety and security of all persons, including Petitioners and all proposed Class Members, serving federal sentences at BOP facilities, including FCI Danbury. He is sued in his official capacity.
JURISDICTION AND VENUE 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 2241 because Petitioners seek relief from being held in custody in violation of the Eighth Amendment to the U.S. Constitution. 8. In addition, the Court has subject matter jurisdiction over this Petition pursuant to 28 U.S.C. § 1331 (federal question) in that the Petitioners’ claims arise under the federal statute providing for habeas corpus, 28 U.S.C. § 2241, and under Article I, § 9, cl. 2 of the U.S.
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Constitution (Suspension Clause), as Petitioners are held in violation of the Eighth Amendment to the U.S. Constitution.
9. Venue is proper in the District of Connecticut pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to these claims occurred and continue to occur in this district.
CLASS ACTION ALLEGATIONS 10. Petitioners bring this representative habeas action pursuant to 28 U.S.C. § 2241 and as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on their own behalf and on behalf of all persons similarly situated. 11. Petitioners seek to represent a class consisting of all individuals currently in custody at FCI Danbury or who will become in custody at FCI Danbury during the course of the COVID-19 pandemic (the “Class”). 12. Petitioners also seek to represent a subclass (the “Subclass”) consisting of all individuals in custody at FCI Danbury or who will become in custody at FCI Danbury during the course of the COVID-19 pandemic who are aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of stroke; and people with any
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condition specifically identified by CDC, currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19.
13. The members of the Class and Subclass are too numerous to be joined in one action, and their joinder is impracticable. Upon information and belief, the class exceeds 1,000 individuals.
14. Common questions of law and fact exist as to all Class and Subclass members and predominate over questions that affect only the individual members. These common questions of fact and law include but are not limited to: (1) whether the conditions of confinement described in this Petition amount to Constitutional violations; (2) what measures Respondents took in response to the COVID-19 crisis; (3) whether Respondents implemented an adequate emergency plan during the COVID-19 crisis; (4) whether Respondents’ practices during the COVID-19 crisis exposed people at FCI Danbury to a substantial risk of serious harm; (5) whether the Respondents knew of and disregarded a substantial risk of serious harm to the safety and health of the Class; and (6) what relief should be awarded to redress the harms threatened to members of the Class as a result of the conditions.
15. Absent class certification, individuals detained at FCI Danbury during the COVID-19 pandemic would face a series of barriers in accessing the relief sought. FCI Danbury has suspended visitation and FCI Danbury prisoners have limited access to communication with the outside world, impeding their ability to obtain legal representation and to pursue remedies, including through litigation. A large portion of the Class and Subclass has limited educational backgrounds. And a significant percent of them suffer from physical or mental impairments. For some, English is not their first language.
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16. Respondents’ practices and the claims alleged in this Petition are common to all members of the Class and Subclass.
17. The claims of Petitioners are typical of those of the Class and Subclass. Petitioners are threatened with imminent inhumane conditions of confinement at FCI Danbury.
18. The legal claims of Petitioners are the same or similar to those of all Class and Subclass members, and the harms suffered by them are typical of those suffered by all the other Class members.
19. Petitioners will fairly and adequately protect the interests of the Class and Subclass. The interests of Petitioners as class representatives are consistent with those of the Class and Subclass members. In addition, counsel for Petitioners are experienced in class action and civil rights litigation.
20. Counsel for Petitioners know of no conflicts of interest among Class or Subclass members or between the attorneys and Class members that would affect this litigation.
21. Prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications that could establish incompatible standards of conduct for the party opposing the Class.
22. The party opposing the Class has acted and refused to act on grounds generally application to the Class, such that final injunctive and declaratory relief is appropriate as to the Class as a whole.
23. Use of the class action mechanism is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial,
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administrative, and procedural burdens on the parties and on this Court, which individual litigation of these claims would impose.
24. This class action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all Class and Subclass members is impracticable.
STATEMENT OF FACTS I. Petitioners Are Members of the Population Particularly Vulnerable to COVID-19
25. Petitioners, current detained at FCI Danbury, are individuals who are particularly vulnerable to serious illness or death if infected by COVID-19.
26. Petitioner Dianthe Martinez-Brooks is a 50-year-old female who suffers from asthma, hypertension, arthritis and systemic lupus erythematosus (SLE). She takes Atenolol for hypertension and has a Proventil emergency inhaler and Asmanex Twisthaler (mometasone furoate inhalation powder, 220 mg) for her asthma. Since her incarceration, she has been proscribed steroids once for the joint and muscle inflammation associated with her lupus. [Declaration of Dianthe Martinez-Brooks, submitted herewith as Exhibit C (“Martinez-Brooks Decl.”) ¶ 2].
27. As a result of her medical condition, Ms. Martinez-Brooks has effectively been condemned to serve her sentence at substantial risk of serious illness or death. As a result of her hypertension, Ms. Martinez-Brooks is significantly more vulnerable to complications should she contract COVID-19. Indeed, the WHO-China Joint Mission Report provided historical mortality rates for those who contracted COVID-19 with specific pre-existing conditions. For those with
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hypertension, the mortality rate was 8.4%.1 That same report indicates that the mortality rate for
chronic respiratory disease such as asthma was 8.0%. Id.
28. As a lupus patient, Ms. Martinez-Brooks is also at greater risk from COVID-19 in
two respects. As with other lupus patients, Ms. Martinez-Brooks has been prescribed
corticosteroids which weaken the immune system and render the patient immunocompromised.
Both that compromised immune system and lupus itself are risk factors for an increased chance of infection and for the development of a more severe form of COVID-19.2
29. Although the Judgment in her criminal case only sentences Ms. Martinez-Brooks
to an additional two years in prison [Martinez-Brooks Decl. ¶ 3], as a result of her medical
condition there is a grave risk that she will not make it out of FCI Danbury alive or will become
terribly ill.
30. Petitioner Rejeanne Collier is a 64-year-old female who suffers from systemic
lupus erythematosus (SLE), hypertension and Hepatitis C. She has had surgery for intestinal
cancer while in BOP custody and has been diagnosed with a spot on her lung. See Motion to
Reduce Sentence, United States v. Collier, 6:12-cr-06003-CJS (N.D.N.Y. Apr. 16, 2020) (Doc.
64 at 13). As set forth above, these conditions condemn her to serve a sentence at substantial risk
1 See Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/defaultsource/coronaviruse/whochina-joint-mission-on-covid-19-final-report.pdf (hereinafter “WHO-China Joint Mission Report”).
2 See People who are at higher risk, Centers for Disease Control and Prevention: Coronavirus Disease 2019 (COVID-19) (Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html; Amr H. Sawalha et al, Epigenetic dysregulation of ACE2 and interferon-regulated genes might suggest increased COVID-19 susceptibility and severity in lupus patients, Clinical Immunology (2020): 108410, https://www.sciencedirect.com/science/article/pii/S1521661620302394 (“propos[ing] that lupus patients might be at an increased risk for infection by SARS-CoV-2 and for developing a more severe form of COVID-19, independent of the possible effect of immunosuppressive medications”).
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of serious illness or death. The mortality rate for COVID-19 with pre-existing hypertension is 8.4%; for cancer, the mortality rate is 7.6%.3 She is also at significantly greater risk as a result of her lupus. To the extent that the as yet incompletely diagnosed spot on her lung represents either lung cancer or some other form of respiratory compromise, that condition will also place her at substantially elevated risk of significant illness or death in the event she contracts coronavirus. The Judgment in her criminal case sentences Ms. Collier to an additional four years in prison. As a result of her medical condition there is a grave risk that she will not make it out of FCI Danbury alive or will become terribly ill.
31. Petitioner Jackie Madore is a 50-year-old female who suffers from hypertension, hypothyroidism, and Hepatitis C. As a result of her hypertension alone, without consideration of the complicating effects of her other conditions, she has a substantially elevated risk of severe illness or mortality in the event she contracts COVID-19 while confined at FCI Danbury.4 As a result of her medical condition, Ms. Madore has effectively been condemned to serve her sentence at substantial risk of serious illness or death. The Judgment in her criminal case only sentences Ms. Madore to an additional 20 months in prison. As a result of his medical condition, there is a grave risk that he will not make it out of FCI Danbury alive or will become terribly ill.
32. Petitioner Kenneth Cassidy is a 54-year-old male with a significant number of risk factors putting him at high risk of severe illness or death in the event he contracts COVID-19. Mr. Cassidy has significant cardiovascular issues, including ischemic heart disease (i.e., deficient blood supply from a narrowing of the blood vessels), unstable angina, and hypertension. He has suffered three heart attacks, including two in his thirties. He has chronic bronchial asthma and
3 See WHO-China Joint Mission Report at 12. 4 See id.
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other respiratory problems which have resulted in his having contracted pneumonia at least 21 times in his life. He also has chronic gastrointestinal and gastroesophageal disease including diverticulosis and he is morbidly obese. He suffers significant food allergies and is on a restricted diet as a result of his diverticulosis. He is on numerous different medications/interventions for these conditions.
33. As a result of his medical condition, Mr. Cassidy has effectively been condemned to serve his sentence at substantial risk of serious illness or death. Pursuant to the above-cited WHO-China Joint Mission Report, each of these conditions puts Mr. Cassidy at significantly elevated risk of mortality in the event he should contract COVID-19: The mortality rate for hypertension is 8.4%; the mortality rate for chronic respiratory disease is 8.0%, the mortality rate for cardiovascular disease is 13.2%.5 Moreover, a recent study found that obesity was the single biggest chronic risk factor for hospitalization for COVID-19.6 COVID-19 infection in a patient presenting with all four medical conditions will undoubtedly be deadly.7
34. The Judgment in his criminal case only sentences Mr. Cassidy to an additional 11 months in prison. [Declaration of Kenneth Cassidy, submitted herewith as Exhibit D (“Cassidy
5 See id, 6 Christopher M. Petrilli et. al., Factors Associated With Hospitalization and Critical Illness Among 4,103 Patients with COVID-1 Disease in New York City (Apr. 11, 2020), available at https://www.medrxiv.org/content/10.1101/2020.04.08.20057794v1.full.pdf; see also Tiernan Ray, NYU scientists - Largest US study of COVID-19 finds obesity the single biggest 'chronic' factor in New York City's hospitalizations (April 12, 2020), https://www.zdnet.com/article/nyu-scientists-largest-u-s-studyof-covid-19-finds-obesity-the-single-biggest-factor-in-new-york-critical-cases/ 7 Safiya Richardson, et al., Presenting Characteristics, Comorbidies, and Outcomes Among 5700 Patients Hospitalized with COVID-19 in the New York City Area, J. AM. MED. ASS’N (Apr. 22, 2020), available at https://jamanetwork.com/journals/jama/fullarticle/2765184 (in study of 5,700 patients, finding that the most common comorbidities with COVID-19 were hypertension (56.6%), obesity (41.7%), and diabetes (33.8%)).
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Decl.”) ¶ 3]. As a result of his medical condition, there is a grave risk that he will not make it out of FCI Danbury alive or will become terribly ill. II. The Layout of the Facilities at FCI Danbury Gives Rise to an Urgent Need for Social
Distancing that Remains Unmet More than Six Weeks into the National COVID-19 Pandemic A. Physical Layout of FCI Danbury’s Three Facilities 35. As of April 23, 2020, the BOP reports that 1,046 people were held at FCI Danbury. They were divided among the units as follows: 165 women are incarcerated at the satellite prison, 153 women are incarcerated at the camp, and 728 men are incarcerated at the men’s prison.8
1. Women’s FSL 36. The women in the satellite facility (“FSL”) are housed in a single dormitory-style room that accommodates approximately 160-170 beds. [Declaration of Christina Korbe, submitted herewith as Exhibit E (“Korbe Decl.”) ¶ 8]. The room is divided into cubicles, each containing two bunk beds, separated by approximately four feet. [Declaration of Marius (Marie) Mason, submitted herewith as Exhibit F (“Mason Decl.”) ¶ 7; Declaration of Kimberly Hoisington, submitted herewith as Exhibit G (“Hoisington Decl.”) ¶ 4]. Beds in each cubicle are immediately adjacent to the cubicle wall, which does not reach to the ceiling. In some instances the wall does not even reach the top of the bunk bed, so women on the top bunk sleep right next to the woman on the top bunk in the adjacent cubicle. [Mason Decl. ¶ 7; Korbe Decl. ¶ 10].
8 See BOP, “Population Statistics” (last updated Apr. 23, 2020), https://www.bop.gov/about/statistics/population_statistics.jsp
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a. All of the women in the FSL share the same three bathrooms, each of which includes between 4-8 toilets, sinks, and showers. [Mason Decl. ¶ 10; Korbe Decl. ¶ 8].
b. The FSL also includes a common area where the women have access to 6-12 shared phones (not all of which are working) and 6 shared computers (only 4 of which are working), which are located in close proximity to one another. [Korbe Decl. ¶ 11; Mason Decl. ¶8].
c. The women in the FSL eat meals together in the dormitory. Meals are brought to all of the prisoners in the dormitory at the same time.
d. On April 25, around 40 women were moved from the dorm area to sleep in the dining hall/kitchen area.
e. On information and belief, there is no medical staff permanently assigned to the FSL or available 24 hours a day. A doctor and a physician’s assistant rotate between the three FCI Danbury facilities and are there during limited hours on weekdays. In order to request medical care, a requester must go to “pill call” in the morning, where a pharmacy technician dispenses medications, and fill out a sick call slip. The requester must then wait until she is called in to be seen, which can take weeks. Emergencies require a call from a correctional officer for a medical professional to come to the FSL. Prior to the pandemic, there were two psychologists who were at the FSL on a daily basis, but they have rarely been present since the pandemic (as psychology programming has been canceled).
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2. Women’s Camp 37. The women at the camp occupy a single building divided into four dormitories, each containing 25 cubicles with bunk beds sleeping two each, and nine rooms that can each hold 4 to 5 women. Prior to the lockdown of the facility on April 15, there were approximately 43 women housed in the nine rooms. After the lockdown, those women were moved to the dormitories. [Martinez-Brooks Decl. ¶¶ 4-5].
a. The cubicles in the dormitories—which currently house all of the women in the camp—have no doors and their dividing walls do not extend to the ceilings. In many cubicles, the beds are positioned perpendicular to the partitions and extend the full width of the cubicle. In this configuration, the partition is the only separation between the beds. Even where beds are placed parallel to the partition, there is not six feet of separation between them. [Id. ¶ 7].
b. As of April 21, 2020, A and B dorms each house 48 women; C dorm houses 47 women and D Dorm houses 7. Each dorm has a common area containing toilets, sinks and showers. A dorm has 4 showers and three toilets. B dorm has 5 working toilets and 6 showers; C dorm has 5 toilets and 5 showers. D Dorm has 3 toilets and three showers. [Id. ¶¶ 6-7].
c. There are four phones, 7 computers for email, and 3 working video-visiting machines, clustered together in a single common area shared by the entire population of the camp. The common area also contains hot water taps and sinks for washing dishes. [Martinez-Brooks Decl. ¶ 9].
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a. The camp is currently on lockdown. Pursuant to the lockdown, the women in each dorm unit are permitted to leave the dorm for 45 minutes in the morning and one hour later in the day, at different times. They can use the facilities in the common room during these times. Within these short time periods, the 47-48 woman census of A, B, and C dorm must each negotiate the sharing of the four common phones, the 7 computers and 3 video chat machines. [Martinez-Brooks Decl. ¶ 11].
b. Recently, women who are out of their dorm during their designated recreation time have been going to visit friends in other dorms. [Martinez-Brooks Decl., ¶ 15].
d. There is no actual medical clinic in the camp and there is no medical staff permanently assigned to the camp or available 24 hours a day. Rather, there are a series of offices: two are used by medical staff, one by dental staff, and one by psychology. During this lockdown, a sick call request is made to physician’s assistants when they come to the unit in the morning to dispense medications and the requester must wait until she is called in—often days later. Emergencies require a call from a correctional officer for a medical professional to come to the camp. [Id. ¶ 21]. 3. Men’s Prison
38. The men’s facility contains 13 units, comprised of 10 units designed for dormitory-style housing and three units of individual cells. There is also a Special Housing Unit for solitary confinement.
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a. The dormitory units (designated C through L Units) consist of rows of bunk beds lined in two rows three to four feet apart across a middle aisle, with no barriers between the beds. [Cassidy Decl. ¶ 32]. A man in that unit would, therefore, sleep within 3-4 feet of five other men. [Id.]. The average dorm unit would also contain a bathroom with 5 stalls and a urinal, 5-6 sinks (generally consisting of five coldwater wash sinks and a single hot-water slop sink for washing eating utensils) and a shower area approximately two feet across a hall from the toilets with three to four showers. [Id. ¶ 33]. The sinks are located approximately four inches apart and people occasionally have to share the same sink. [Id.].
b. The dorms also contain 2 television rooms, approximately 10 x 12 feet that can accommodate approximately 20 prisoners each and typically hold 15-20 people at a time. [Id. ¶ 35]. There is also a small telephone room, approximately 3 x 8 feet, containing two telephones. The telephones, which are about eight inches apart, are almost always in use. When two prisoners are using the telephones, they have to stand within two feet of each other. Typically, there are two prisoners on the phones, and the rest wait in a line in the hallway, standing right next to each other, close enough to touch each other. [Id. ¶ 36].
c. There is also a small computer room in each dorm measuring approximately 8 x 10 feet containing three computers, an eating table and an ice dispenser. There are no barriers between the computers and, at any given time, there will be three people in the room using the computers, three people standing behind them in the
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room waiting to use the computers, and several more lined up shoulder to shoulder outside the room. [Id. ¶ 37]. d. The three units of individual cells (A, B and M Units) consist of two floors of cells measuring 8 x 4 feet, containing a bunk bed for two men with a toilet/sink. [Declaration of Rafael Almonte, submitted herewith as Exhibit H (“Almonte Decl.”), ¶ 6]. Prior to the emergence of COVID-19 in the facility, only one of the cell block units (M Unit) was in use and housed primarily military veterans, older men and those with serious medical conditions. A second cellblock (A Unit) has since been devoted to prisoners who are positive for coronavirus. [Almonte Decl. ¶ 17]. The facility has also activated one of the dorms (K Unit)—which had previously been emptied because of the need for asbestos remediation—to serve as an isolation unit at the prison. [Id. ¶ 4; Cassidy Decl. ¶ 42]. B Unit has since been converted to serve as a quarantine unit for individuals being released or sent to home confinement. e. The cellblock units also contain a TV room that can accommodate 30 men who sit close together and a computer room containing 3 stations right next to one another. There are also two small rooms containing one phone each. [Almonte Decl. ¶ 8]. f. There is a single medical clinic for men at FCI Danbury. Before the outbreak, it was typically staffed by one physician and two physician assistants. The physician from the women’s facilities would occasionally come to the men’s prison to see patients. [Almonte Decl. ¶ 11]. Since the lockdown, a social worker is coming
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into the units to conduct sick call triage of men exhibiting symptoms. [Cassidy Decl. ¶ 18]. At times she brings along the prison’s dental hygienist. [Id.] The clinic is not staffed by medical staff 24 hours a day. g. There is also a dining hall in the men’s prison that serves all of the units in the prison. The men’s prison also includes an outdoor space for recreation (“rec yard”). The space is accessed through a single 4 foot wide door and men entering and exiting the rec yard must line up in close proximity to file through the door. During recreation, prisoners stand right next to one another and are unable to observe social distancing. [Cassidy Decl. ¶ 29]. B. COVID-19 Outbreak at FCI Danbury 39. FCI Danbury is in the center of the global COVID-19 storm. The United States currently has the greatest number of infections of any country in the world. As of April 27, 2020, there were approximately 966,000 reported COVID-19 cases and more than 55,000 deaths in the United States.9 And, the New York City metropolitan area, in which FCI Danbury is located, is currently at the epicenter of the coronavirus pandemic in this country. As of April 27, 2020, there are over 422,000 positive cases of COVID-19 in New York, Connecticut and New Jersey. As of that date, there have been 30,000 deaths in those three states, representing 55% of the total confirmed deaths from COVID-19 reported nationwide.10 In New York City and the seven counties most proximate to FCI Danbury (Westchester, Putnam, Dutchess and Nassau counties in New York and Fairfield, Litchfield and New Haven counties, Connecticut), there were an aggregate of 242,000 cases of COVID-19 and 21,000 deaths. Id. In Connecticut alone, the
9 COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), https://www.arcgis.com/apps/opsdashboard/index.html.
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Connecticut Department of Public Health ("DPH") has reported that, as of April 27, 2020, in Connecticut, there were 25,269 confirmed cases and 1,924 deaths attributed to COVID-19. Fairfield County, where FCI- Danbury is located has the highest number of confirmed cases of COVID-19 and deaths attributed to COVID-19 in the state: as of April 27, 2020, there were 10,529 confirmed cases of COVID-19 and 707 COVID-19 associated deaths.11
40. FCI Danbury is the site of one of the worst COVID-19 outbreaks at BOP facilities nationwide. As of April 15, at least 44 prisoners and 39 staff members have or had tested positive for COVID-19.12 One person incarcerated at FCI Danbury has died of COVID-19. On April 24-26, 2020, at least two women from the FSL were brought to the hospital because of severe COVID-19 symptoms. On information and belief, at least ten more women in the FSL tested positive during those same days.
41. The incidence rate at Danbury exceeds 2.8% of the total prisoner population at the facility—among the highest concentrations of positive tests per capita of any facility in the Bureau of Prisons network.
42. The incidence of staff COVID-19 infections at FCI Danbury is likewise, among the highest incidence per capita of staff infections in the BOP system.
43. The BOP reports the number of positive cases for inmates and staff at each facility on its website. But the BOP’s numbers do not include people who previously tested
10 Id. 11 See https://portal.ct.gov/-/media/Coronavirus/CTDPHCOVID19summary4232020.pdf?la=en 12 See Laura Cassels, COVID-19 deaths in federal prisons rise to 15; about 700 staff and inmates sick, Phoenix, April 15, 2020, https://www.floridaphoenix.com/2020/04/15/covid-19-deaths-in-federalprisons-rise-to-15-about-700-staff-and-inmates-sick/
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positive for COVID-19 and have since been deemed recovered by BOP.13 The BOP provides no explanation as to what qualifies as “recovery.”
44. BOP’s data does not state where the incarcerated people who tested positive have been housed, and who may have been exposed to staff members who have tested positive.
45. As set forth in detail below, see paragraphs 131-141, there is ample evidence to indicate that FCI Danbury appears to be avoiding testing prisoners who present with symptoms of COVID-19 infection.
46. COVID-19 is at Danbury and individuals are infected. What cannot be known is how many currently have the infection or exposure. In the absence of any information from the BOP about the number of tests actually administered at FCI Danbury and the criteria employed at that institution to determine whether and when to perform COVID-19 testing, no reliable information is public about the degree to which the infection has spread at FCI Danbury.
47. Respondents have failed to prioritize medically vulnerable prisoners for release to home confinement or to other destinations appropriate to reduce population density at FCI Danbury and enhance opportunities for social distancing.
48. On information and belief, Respondents have also reversed prior determinations to release medically vulnerable individuals pursuant to de-densification efforts and have advised medically-vulnerable individuals who had previously been notified that they were to be released to home confinement that they are no longer eligible for such release because they had not completed one-half of their sentences.
49. Further, on information and belief, FCI Danbury has indefinitely suspended the administrative remedy process; staff informed prisoners that, due to the state of emergency under
13 Federal Bureau of Prisons, https://www.b2op0.gov/coronavirus/

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which the facility is operating, staff are unavailable to review, investigate and respond to grievances. [Cassidy Decl. ¶ 25].
50. FCI Danbury is grossly ill-equipped to identify, monitor, and treat a COVID-19 epidemic. The combination of an epidemic striking a facility that houses over 1,000 people and FCI Danbury’s inability to provide appropriate medical care under normal circumstances is likely to result in serious illness and death, if people remain confined there at current population levels and under current conditions.
51. At current facility population levels, prisoners at FCI Danbury cannot comply with the Centers for Disease Control and Prevention (“CDC”) guidelines for physical distancing, a “cornerstone” of risk reduction in prisons.14
52. As long as prisoners are unable to practice physical distancing, any other mitigating steps will fail to decrease meaningfully the risk of COVID-19 infections at FCI Danbury.
53. The failure to implement appropriate social distancing measures has led to the creation of crisis conditions at FCI Danbury.
54. On April 24-26, 2020, several prisoners at the FSL have shared an account of a 43 year-old woman housed at the satellite facility whose serious symptoms, including profuse
14 See CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (Mar. 23, 2020), at 4 (“CDC Interim Correctional Facility Guidance”) (“Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19”); id. (“Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic.”), available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
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vomiting and dry heaving, over several hours, were disregarded by correctional staff before she was finally taken to the hospital. [See Korbe Decl. ¶¶ 16-17; Hoisington Decl. ¶¶ 16-17].
a. The woman at issue had been sick for a couple of weeks with a sore throat and body aches.
b. On April 24, she said that she couldn’t breathe and that her lungs felt like they were filling with fluid. She began vomiting, and was vomiting, dry heaving, and violently struggling for air for hours. At one point she had to be wheeled in a wheelchair by a correctional officer from the bathroom because she couldn’t walk.
c. Other prisoners tried to advocate for her to receive medical treatment and were told that the hospital can’t take her unless she’s dying, and that the prisoners would get disciplinary reports and get locked down if they continued advocating on her behalf. The prisoners were told that they were not doctors and were instigating the sick woman’s behavior.
d. By late at night on April 24 or early morning on April 25, the sick woman had been taken to the hospital. At the hospital, she tested positive for COVID-19.
e. The next day on April 25, roughly 40 inmates who were determined to have had recent contact with the sick prisoner were moved out of the dormitory into a separate area of the facility and were tested for COVID-19.
f. On information and belief, at least ten of those inmates tested positive for COVID-19.
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g. Thereafter, all of the prisoners who had been removed from the dormitory returned for some time to gather their personal property, use phones and computers, use bathrooms, and take showers. On information and belief, even after they were removed to isolation, several of these women were able to return to the dormitory to gather snacks and other belongings.
h. The phones, computers, and bathrooms were not sanitized immediately afterwards.
i. The other inmates in the dormitory are using these same phone, computers, and bathrooms.
j. Some inmates who had contact with the sick woman were not among those removed from the dormitory and are still living there.
k. As a result of failure to implement social distancing and to plan for contagion within the facility, FCI Danbury had no appropriate location to isolate the women who newly-tested positive for COVID-19 and was required to take those women to sleep in the dining hall/kitchen.
l. Prisoners have been warned that they will get disciplinary reports if they tell anyone about what is going on in the facility. A prisoner who relayed information about the sick woman to her attorney via phone was given a disciplinary report for sharing information about another prisoner.
55. FCI Danbury is undergoing a serious outbreak and worse will likely follow with devastating consequences for Petitioners and other vulnerable prisoners, correctional staff, local health care workers, their families, and the broader community.
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III. Prisons Are Especially Susceptible to COVID-19 Contagion 56. The COVID-19 virus is highly infectious and can be spread “easily and
sustainably” from person-to-person.15 The virus can live on plastic and steel surfaces for up to 72 hours, and, powered by a single cough or sneeze, can be propelled in a gas cloud that extends up to 27 feet in length.16
57. To date, the virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects, where the virus can survive for up to three days. Critically, people who are asymptomatic or presymptomatic can unknowingly transmit the virus, making it particularly difficult to slow its spread. [Declaration of Jaimie Meyer, M.D. submitted herewith as Exhibit A (“Meyer Decl.”) ¶ 20].
58. There is no vaccine against COVID-19 and there is no known medication to prevent or treat infection from COVID-19. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures for protecting vulnerable people from COVID-19.
59. As a result, the only assured way to curb the pandemic is through dramatically reducing contact for all. Consequently, every American institution—from schools to places of worship, from businesses to legislatures—has been exhorted or ordered to reduce the number of
15 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.
16 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); Lydia Bourouiba, Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for Reducing Transmission of COVID-19, JAMA (2020),
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people in close quarters, if not to empty entirely.17 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.18
60. In light of this public health crisis, in late March 2020, the Governors of New
York and Connecticut took the strictest measure yet to fight the virus’s spread. In recognition
that the most effective way to reduce the spread of the virus, they issued “stay at home”
executive orders for all residents and banned all non-essential public gatherings.19
61. People in congregate environments, where people live, eat, and sleep in close
proximity, face increased danger of contracting COVID-19, as evidenced by the rapid spread of
the virus in cruise ships and nursing homes.
62. Indeed, the CDC has identified prisons, along with nursing homes, long-term care
facilities, group homes, and cruise ships, as environments that are especially susceptible to rapid
https://jamanetwork.com/journals/jama/fullarticle/2763852 (accessed Apr 2, 2020). 17 Harry Stevens, Why Outbreaks Like Coronavirus Spread Exponentially, and how to “Flatten
the Curve,” WASH. POST, (Mar. 14, 2020), https://cutt.ly/etYRnkz; Centers for Disease Control and Prevention, Interim Guidance for Administrators of US K-12 Schools and Child Care Programs, https://cutt.ly/ItRPq5n; 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; 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; Nat’l Conf. of State Legislatures, Coronavirus and State Legislatures in the News, https://cutt.ly/4tRPQne. 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. 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.
18 Centers for Disease Control and Prevention, Cleaning and Disinfecting Your Facility, https://cutt.ly/atYE7F9.
19 Governor Cuomo Signs the 'New York State on PAUSE’ Executive Order, New York State (Mar. 20, 2020), https://www.governor.ny.gov/news/governor-cuomo-signs-new-york-state-pauseexecutive-order; Gov. Ned Lamont announces ban on gatherings of more than 5 people as COVID-19 death toll hits 21 and unemployment claims surge to 148K, HARTFORD COURANT (Mar. 26, 2020,
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outbreaks of infection due to close person-to-person contact among large, confined populations.20
63. Spaces within jails and prisons are often poorly ventilated; the lack of ventilation
promotes highly efficient spread of diseases through droplets. [Meyer Decl. ¶ 9].
64. Prisoners and staff interact in close proximity under cramped conditions that are
designed to confine people rather than distance them; as a result, correctional facilities are highly
susceptible to rapid transmission of the virus through contact, including asymptomatic carriers
who show no signs of illness, and common surfaces.
65. Absent significant de-densifying, people who are confined in prisons, jails, and
detention centers, as well as staff, will find it impossible to engage in the necessary social
distancing and hygiene required to mitigate the risk of transmission. [Meyer Decl. ¶¶ 9, 11].
66. As one court, quoting another, recently summarized the problem: “Prisons are
‘powder kegs for infection’ and have allowed ‘the COVID-19 virus [to] spread[] with
uncommon and frightening speed,’” United States v. Salvagno, 5:02cr00051-LEK (N.D.N.Y.
Apr. 23, 2020) (Doc. 1166 at 8) (quoting United States v. Skelos, No. 15-CR-317, 2020WL 1847558, at *1 (S.D.N.Y. Apr. 12, 2020)).21
10:21 pm), https://www.courant.com/coronavirus/hc-news-coronavirus-updates-0326-20200326guqhxagmd5fidprf6el6wpvity-story.html.
20 See CDC Interim Correctional Facility Guidance, available at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctionaldetention.html.
21 Editorial, No One Deserves To Die of COVID-19 in Jail: But More Than 100 Inmates Already Have, N.Y. Times, Apr. 23, 2020), available at https://www.nytimes.com/2020/04/23/opinion/coronavirus-prisons.html (“Social distancing in prisons in nearly impossible.”); U.S. Dep’t of Justice, FY 2020 Performance Budget Congressional Submission, Federal Prison System, Buildings and Facilities (finding that the size of the inmate population in federal prisons exceeds their rated capacity by 12 to 19 percent), available at https://www.justice.gov/jmd/page/file/1144631/download
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67. Correctional settings also increase the risk of contracting and spreading an
infectious disease, like COVID-19 because they typically house high numbers of people with
chronic, often untreated underlying health conditions, such as diabetes, heart disease, chronic
lung and liver diseases, asthma, and lower immune systems from HIV. This chronic underlying
illness, in turn, is often exacerbated by minimal levels of sanitation, limited access of personal
hygiene, limited access to medical care, and no possibility of staying at a distance from others.22
68. Indeed, outbreaks of the flu regularly occur in prisons, and during the H1N1
epidemic in 2009, many jails and prisons dealt with high numbers of cases.23
69. Prisons are not isolated from communities, and infections in prisons give rise to
the risk of “community spread.” Even when prison visitors are reduced, staff, contractors and
vendors go from prisons to communities and can bring infectious diseases into facilities and then
into communities. The turnover of prison populations means that people cycle in and out, as well
as transfer from one facility to another.
70. Such movement creates an ever-present risk that persons, including asymptomatic
carriers, will carry the virus into and out of those facilities, spread infection, and trigger
22 See, e.g., Joseph A. Bick, Infection Control in Jails and Prisons, 45:8 Clinical Infectious Diseases 1047 (Oct. 2007), available at https://academic.oup.com/cid/article/45/8/1047/344842 (incarcerated people at increased risk for transmission of blood-borne pathogens, sexually transmitted diseases, certain antibiotic resistant infections, Staph. Infection, tuberculosis, influenza, and varicellazoster); World Health Organization, Prisons and Health, Infectious diseases in prison at 73 (2014), available at http://www.euro.who.int/__data/assets/pdf_file/0005/249188/Prisons-and-Health.pdf?ua=1.
23 See Interim Guidance for Correctional and Detention Facilities on Novel Influenza A (H1N1) Virus, CDC (May 24, 2009 at 6:00 pm), available at https://www.cdc.gov/h1n1flu/guidance/correctional_facilities.htm; Wen-Cheng Chao, Po-Yu Liu, ChiehLiang Wu, Control of an H1N1 outbreak in a correctional facility in central Taiwan, 50:2 J. MICROBIOLOGY, IMMUNOLOGY AND INFECTION 175 (Apr. 2017), available at https://www.sciencedirect.com/science/article/pii/S1684118215007550; H1N1 outbreak in 2013 inside Canada’s largest correctional facility offers lessons on COVID-19: report, NATIONAL POST (Mar. 24, 2020 at 12:00 am), available at https://nationalpost.com/news/h1n1-outbreak-in-2013-at-canadas-largestcorrectional-facility-being-studied-to-fight-covid-19-inside-prisons.
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outbreaks inside and in communities. Prison health is an issue of public health as what happens
in prison has widespread ramifications beyond the walls of the prison. [Meyer Decl. ¶ 8.]24
71. Evidence of the degree of risk in prisons is mounting. The estimate is that recent
outbreaks in the Cook County Jail in Chicago and at the Rikers Island Jail in New York are the
highest transmission rates for COVID-19 in the world.25 As of April 20, 2020, eight hundred
New York City correctional employees had tested positive and eight had died. Including
prisoners, there have been 10 deaths and more than 1,200 confirmed cases in New York City’s
jails.26
72. In Arkansas, 38% of the positive COVID-19 cases in the state are concentrated in
one prison, which has 850 confirmed cases.27
73. As of April 26, 2020, at least 12,613 people in jails and prisons had tested positive
for the illness.28 The number of new cases among prisoners is more than doubling each week.
24 See ACLU, COVID-19 Model Finds Nearly 100,000 More Deaths Than Current Estimates, Due to Failures to Reduce Jails (April 22, 2020), https://www.aclu.org/sites/default/files/field_document/aclu_covid19-jail-report_2020-8_1.pdf (epidemiological model indicating that, “as a result of the constant movement between jails and the broader community, our jails will act as vectors for the COVID-19 pandemic in our communities.”).
25 See Alleen Brown, Inside Rikers: An Account of the Virus-Stricken Jail from a Man Who Managed to Get Out, Intercept, April 21 2020, https://theintercept.com/2020/04/21/coronavirus-rikersisland-jail-nyc/; Timothy Williams & Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. Times, April 8, 2020, https://www.nytimes.com/2020/04/08/us/coronaviruscook-county-jail-chicago.html.
26 Deanna Paul & Ben Chapman, Rikers Island Jail Guards Are Dying in One of the Worst Coronavirus Outbreaks, Wall Street Journal, April 22, 2020, https://www.wsj.com/articles/rikers-islandjail-guards-are-dying-in-one-of-the-worst-coronavirus-outbreaks-11587547801
27 See Zach Budryk, 38 percent of Arkansas COVID-19 cases concentrated in state prison, The Hill, April 21, 2020, https://thehill.com/homenews/state-watch/493988-38-percent-of-arkansas-covid-19cases-concentrated-in-states-prison
28 Sharon Dolovitch, “Covid-19 Jail/Prison Confirmed Cases & Deaths,” UCLA Covid-19 Behind Bars Data Project, https://docs.google.com/spreadsheets/d/1X6uJkXXSO6eePLxw2e4JeRtM41uPZ2eRcOA_HkPVTk/edit#gid=1197647409.
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The “curve,” which may be flattening due to social distancing in some localities, is not flattening in prison; to the contrary, the virus is soaring in prisons.29
74. Sixteen prison systems—including the Federal Bureau of Prisons which has already experienced major outbreaks throughout its network—are not releasing information about how many prisoners they are testing.30 Of the rest, only eight systems had tested more than 400 of the people in their custody by the week beginning April 20, 2020.31
75. Therefore, the data of more than 12,000 people in prison and jails testing positive is most likely a significant undercount.
76. In Ohio, mass testing of everyone at the Marion Correctional Institution revealed 1,828 confirmed cases among prisoners, which represents 73% of the population. One hundred and nine staff members at the facility were also positive.32 IV. COVID-19 Infection in the Prison Demographic Is Deadly
77. Many incarcerated individuals are at heightened risk of serious illness and death from COVID-19 because their demographic profile and histories make them part of a cohort that is especially vulnerable. People over the age of fifty face greater chances of serious illness or death from COVID-19. In a February 28, 2020, WHO-China Joint Mission Report, the preliminary mortality rate analyses showed that individuals age 60-69 had an overall 3.6% mortality rate and those 70-79 years old had an 8% mortality rate. For individuals 50-59, the
29 See Error! Main Document Only.“Tracking the Spread of Coronavirus in Prisons” THE MARSHALL PROJECT, Apr. 24, 2020 3:05 pm, available at https://www.themarshallproject.org/2020/04/24/tracking-the-spread-of-coronavirus-in-prisons
30 Id. 31 Id. 32 See Bill Chappell & Paige Pfleger, 73% Of Inmates At An Ohio Prison Test Positive For Coronavirus, NPR, April 20, 2020, https://www.npr.org/sections/coronavirus-liveupdates/2020/04/20/838943211/73-of-inmates-at-an-ohio-prison-test-positive-for-coronavirus
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mortality rate was 1.3%. For individuals age 40-49, the mortality rate was 0.4%, and for
individuals 40 years and younger, the mortality rate was 0.2%.33
78. People of any age who suffer from certain underlying medical conditions,
including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and
dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from
cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited
metabolic disorders, stroke, developmental delay, and asthma, are at elevated risk as well.34
79. The WHO-China Joint Mission Report provides 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.35
80. In many people, COVID-19 causes fever, cough, and shortness of breath. But for
people over the age of fifty or with medical conditions that increase the risk of serious COVID-
19 infection, shortness of breath can be severe.
81. Most people in higher risk categories who develop serious illness will need
advanced medical help and support. This level of supportive care requires highly specialized
33 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (data analysis based on WHO China Joint Mission Report); ICNARC Report on COVID-19 in Critical Care, at 19 (Apr. 17, 2020), available at https://www.icnarc.org/About/Latest-News/2020/04/04/Report-On-2249-PatientsCritically-Ill-With-Covid-19 (in study of 6,750 patients admitted to critical care, finding that majority of patients over 60 died in critical care).
34 Coronavirus disease (COVID-19) advice for the public: Myth busters, World Health Organization, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/mythbusters (“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.”).
35 WHO-China Joint Report at 12, https://www.who.int/docs/default-source/coronaviruse/whochina-joint-mission-on-covid-19- final-report.pdf (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”).
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equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians.36
82. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. COVID19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work.
83. Emerging evidence also suggests that COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
84. Even some younger and healthier people who contract COVID-19 are susceptible to severe strokes and may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.37
36 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.
37 See Young and middle-aged people, barely sick with covid-19, are dying of strokes, WASH POST. (Apr. 25, 2020 at 2:12 pm), available at https://www.washingtonpost.com/health/2020/04/24/strokes-coronavirus-young-patients/; see also Covid19 causes sudden strokes in young adults, doctors say, CNN (Apr. 23, 2020 at 7:41 am), available at https://www.cnn.com/2020/04/22/health/strokes-coronavirus-young-adults/index.html.
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85. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.38 For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent.
86. Most people in high-risk categories who develop serious illness require advanced medical support, including specialized equipment, such as ventilators, and large teams of highly trained care providers, such as ICU doctors, nurses, and respiratory therapists. [Meyer Decl. ¶ 22]. The artificial ventilation process is itself invasive and dangerous, and some patients must be placed in medically induced comas for such treatment.
87. Given the need for advanced and urgent intervention, often in an ICU environment, people with severe cases of COVID-19 cannot be shackled or otherwise restrained, nor can they be subjected to constant, close supervision by correctional staff, as they would be in a typical correctional setting.
88. FCI Danbury is not equipped to provide advanced support in an ICU setting with ventilators, certainly not for a substantial group of seriously ill prisoners who may require such specialized care.
89. Patients who do not die from serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage, amputation due to
38 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM) https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879; World Health Organization, Q&A: Similarities and differences – COVID-19 and influenza (Mar. 17, 2020), available at https://www.who.int/news-room/q-a-detail/q-a-similarities-and-differences-covid-19-andinfluenza#:~:text=Mortality%20for%20COVID%2D19,quality%20of%20health%20care (COVID-19 crude mortality ratio is between 3-4%; for seasonal influenza mortality is usually well below 0.1%);
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clotting and reduced blood flow, loss of respiratory capacity, and tissue damage in other vital organs, including the heart and liver.39
90. In sum, to buffer against the outbreak of a highly infectious, deadly virus in a closed detention setting requires urgent and decisive action to protect the health of those confined in the prison, those who work there, and the medical professionals who will treat those who become infected.
V. Spread of Disease in BOP Facilities Requires De-Densifying and Providing Social Distancing for Those Who Remain 91. Available statistics reveal a public health disaster erupting across BOP facilities
that worsens with each passing day. 92. From March 20 to April 25, confirmed COVID-19 cases among BOP prisoners
and staff rose from 2 to 1047 across 42 facilities nationwide. 93. Severe outbreaks at FCI Oakdale in Louisiana, FCI Elkton in Ohio, and FCI
Butner in North Carolina, already have resulted in dozens of confirmed COVID-19 infections among prisoners and staff, many more suspected but unconfirmed cases, and 22 prisoner deaths throughout the system.40
39 Centers for Disease Control and Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl; Melissa 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); 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.
40 Current information about the census of COVID-19 positive prisoners and staff in the Bureau of Prisons system is maintained on a COVID-19 resource page on the Federal Bureau of Prisons website available at https://www.bop.gov/coronavirus. Historical statistics have been compiled and updated daily by the Federal Defenders of New York, Inc. and are available at https://federaldefendersny.org/.
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94. That surge of COVID-19 cases inside the federal prison system has dwarfed the national percentage increase in confirmed cases over the same time period.41
95. According to CDC guidelines, only two measures are known to be effective in reducing the spread of this disease: (1) diligent “social or physical distancing,” which involves keeping at least six feet of space between people to avoid transmission of the virus, and (2) vigilant hygiene practices, including frequently washing hands and regularly disinfecting surfaces. Physical distancing is a necessary predicate for hygiene practices to have any meaningful impact.42
96. Because asymptomatic or pre-symptomatic people can transmit the virus to others, it is critical to follow CDC guidelines, including social distancing, even among people who show no signs of COVID-19 and appear to be healthy.
97. The only effective way to minimize the potential devastation from COVID-19 in BOP facilities generally and at FCI Danbury in particular is to downsize immediately the incarcerated population and, for the prisoners who remain at the institution, to undertake aggressively the detection, prevention, and treatment measures that public health and medical experts have recommended, including effective social distancing.
98. These measures are not possible in prisons, like FCI Danbury, without substantial reductions in the prisoner population.
99. What some officials call “modified lockdowns” are not what self-quarantining and social distancing entails. Prisoners and staff interact in many ways, and when facilities have
41 Comparisons of the respective increases in confirmed cases of COVID-19 over the last several weeks in the general and prison populations have likewise been compiled by the Federal Defenders of New York, Inc. and are available at https://federaldefendersny.org/.
42 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html 34

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dorm-like arrangements, prisoners sleep, eat, congregate, recreate, and receive medical treatment in close proximity.
100. Implementation of necessary hygiene practices is also impossible, particularly when adequate supplies of free soap, sanitizers, disinfectants, and paper towels are not readily available in prisons. [Meyer Decl. ¶¶ 9, 11, 39].
101. Correctional public health experts have recommended the release from custody of people most vulnerable to COVID-19 so as to protect them and permit risk mitigation for all people held or working in facilities. 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.
102. Calling for immediate and extensive “efforts to decarcerate” to protect both prisoners and the general public, the New England Journal of Medicine explained:
The boundaries between communities and correctional institutions are porous, as are the borders between countries in the age of mass human travel. Despite security at nearly every nation’s border, Covid-19 has appeared in practically all countries. We can’t expect to find sturdier barriers between correctional institutions and their surrounding communities in any affected country. . . .To promote public health, we believe that efforts to decarcerate, which are already under way in some jurisdictions, need to be scaled up; and associated reductions of incarcerated populations should be sustained. The interrelation of correctionalsystem health and public health is a reality not only in the United States but around the world.43
43 Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D., Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons, NEW ENGLAND JOURNAL OF MEDICINE (Apr. 9, 2020), available at https://www.nejm.org/doi/pdf/10.1056/NEJMp2005687?articleTools=true.
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103. Consistent with these public health recommendations, many jurisdictions have
already taken steps to protect those in custody from the impending spread of COVID-19 by
releasing people in an effort to reduce populations.44
104. In New York City, public officials, the jail oversight board, and doctors working
at Rikers Island have acknowledged that the City’s jails are unsafe and that releasing people is
the medically appropriate and humane option.45 See Statement of New York City Board of
Correction, March 17, 2020 (calling on the City to release people from criminal custody,
prioritizing people over 50, those with underlying health conditions, detained for administrative
reasons, and those who have been convicted and sentenced to one year or less).46
44 For example, in Washington, the governor has, as of April 23, commuted almost 300 sentences, and more than 40 people have received work release furloughs; Kentucky’s governor signed an executive order on April 2, 2020, commuting the sentences of 186 people convicted of felonies, and the state plans to release 743 others who are within 6 months of completing their sentences; the governor of Oklahoma has commuted the sentences of more than 450 people; the number of people being paroled from state prisons in Michigan has reportedly increased by about 1,000 people per month to reduce prison density during the pandemic; and the California Department of Corrections and Rehabilitation announced on March 31 that it would expedite the transition to parole for 3,500 nonviolent offenders with 60 days or less left on their sentences. See Responses to the COVID-19 pandemic, Prison Policy Initiative (Apr. 24, 2020), https://www.prisonpolicy.org/virus/virusresponse.html. Numerous cities and counties have also taken steps to reduce jail populations, including: from March 18 to April 15, 2020, the Washington, D.C., jail population decreased by more than 21%; the San Mateo County Sheriff’s Office in California has released 382 people from their two county jails, including those who are 65 and older; after an April 3, 2020, ruling from the Massachusetts Supreme Judicial Court, almost 300 people were released from jails across the state. Id.
45 See Ross MacDonald (@RossMacDonaldMD), Twitter (March 18, 9:51 p.m.) https://twitter.com/RossMacDonaldMD/status/1240455796946800641 (Dr. MacDonald is the Chief Medical Officer for Correctional Health Services (“CHS”), which provides healthcare to New York City’s Department of Corrections); Rachel Bedard, (@rachelbedard), Twitter (March 18, 8:34 a.m.) https://twitter.com/rachaelbedard/status/1240255196644741120 (Dr. Bedard is the Director of Geriatrics and Complex Care for CHS); Jonathan Giftos (@JonGiftosMD), Twitter (March 18, 10:37 p.m.) https://twitter.com/JonGiftosMD/status/1240467288198873088 (until January 2020, Dr. Giftos was the ClinicalDirector of Substance Use Treatment for CHS).
46 New York City Board of Correction Calls for the City to Begin Releasing People from Jail as Part of Public Health Response to COVID-19 (Mar. 17, 2020), https://www.nysenate.gov/newsroom/inthe-news/julia-salazar/nyc-board-correction-calls-city-begin-releasing-people-jail
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105. On March 20, 2020, Dr. Robert Cohen, a member of New York City’s Board of Correction, said, “The most important thing we can do right now is discharge all of the people who are old and have serious medical issues — those people are likely to die from a coronavirus infection.”47
106. Several doctors working in New York City’s jails have echoed the calls to release vulnerable people. Dr. Rachael Bedard, senior director of the geriatrics and complex care service at Rikers Island, has described depopulation as “[t] he only meaningful public health intervention.”48 In correctional facilities, “if you think about how many excess human contacts [there are], even compared to something like a shelter setting, you can imagine why viral spread in this environment is extra dangerous.”
107. Ross McDonald, the Chief Medical Officer for Correctional Health Services, which provides healthcare to New York City’s Department of Corrections, said Rikers was a “public health disaster unfolding before our eyes.” He stressed: “This is not a generational public health crisis, rather it is a crisis of a magnitude no generation living today has ever seen.” He also warned that it was “unlikely” they will be able to stop the growth in the jail, and predicted that 20% of those infected would need hospital treatment and 5% would need ventilators. He called for the release of “as many vulnerable people as possible”49
47 Jen Ransom and Alan Feuer, ‘A Storm Is Coming’: Fears of a Prisoner Epidemic as the Virus Spreads in the Jails, N.Y. Times (March 20, 2020), https://www.nytimes.com/2020/03/20/nyregion/nyccoronavirus-rikers-island.html
48 Jennifer Gonnerman, A Rikers Island Doctor Speaks Out to Save Her Elderly Patients From the Coronavirus, New Yorker (Mar. 20, 2020), https://www.newyorker.com/news/news-desk/a-rikersisland-doctor-speaks-out-tosave-her-elderly-patients-from-the-coronavirus.
49 Miranda Bryant, Coronavirus spread at Rikers is a 'public health disaster', says jail's top doctor, THE GUARDIAN (Apr. 1, 2020 10:36 am), Available at https://www.theguardian.com/usnews/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster
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108. Members of Congress have, likewise, recognized the urgency of reducing prison populations as a means of achieving social distancing in those institutions. On March 23, 2020, a bipartisan group of fourteen U.S. Senators sent a letter to U.S. Attorney General Barr and BOP Director Carvajal to express their “serious concern for the health and wellbeing of federal prison staff and prisoners . . . especially those who are most vulnerable to infection.” The Senators wrote that they reviewed the BOP’s COVID-19 Action Plan and noted that it did not include any measures to protect the most vulnerable staff and prisoners. The Senators urged DOJ and BOP to release to home confinement certain individuals who were elderly, ill, or incarcerated for nonviolent offenses and are near release.
109. Senator Dick Durbin of Illinois, founding Chairman and current member of the Senate Judiciary Committee’s Subcommittee on Human Rights and the Law (subsequently renamed the Subcommittee on Constitution, Civil Rights, and Human Rights) and current ranking member on the Subcommittee on Immigration has called on the federal government to take action to protect staff and people detained in federal prisons. “Federal prisons will inevitably be a hotspot for the spread of coronavirus, especially among vulnerable staff and prisoners,” Durbin said. “It is imperative for BOP to take immediate action to protect staff and prisoners at federal prisons throughout the country and ensure that facilities are prepared to address this threat.”50
50 Durbin Discusses Coronavirus Threat At Federal Prisons With Council Of Prison Locals, Dick Durbin United States Senator Illinois (Mar. 24, 2020), https://www.durbin.senate.gov/newsroom/press-releases/durbin-discussescoronavirus-threat-at-federalprisons-with-council-of-prison-locals; Letter, https://www.durbin.senate.gov/imo/media/doc/Letter.%20to%20DOJ%20and%20BOP%20on%20COVI D-19%20and%20FSA%20provisions%20%20final%20bipartisan%20text%20with%20signature%20blocks.pdf
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110. On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (CARES Act, P.L. 116-136), which authorizes the BOP Director to lengthen the maximum amount of time for which a prisoner may be placed on home confinement “as the Director determines appropriate” when the Attorney General “finds that emergency conditions will materially affect the functioning” of BOP.
111. The authority is limited to “the covered emergency period,” which is defined as the period spanning from the President’s declaration of a national emergency with respect to COVID-19 to the date that is 30 days after the date on which the declaration terminates.
112. The United States Department of Justice has also called for urgent action to reduce prison populations in the BOP to achieve necessary social distancing. On March 26, 2020, Attorney General William Barr sent a memo to the Director of BOP “directing [him] to prioritize the use of [his] various statutory authorities to grant home confinement for prisoners seeking transfer in connection with the COVID-19 pandemic” because “for some eligible prisoners, home confinement might be more effective in protecting their health.”51
113. The Attorney General specifically recognized that “there are some at-risk prisoners who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than BOP facilities.”52
114. Attorney General Barr further identified “[t]he age and vulnerability of the prisoner to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines,” and “the security level of the facility,” with “priority given” to prisoners
51 Memo from Attorney General to Director of Bureau of Prisons, March 26, 2020, https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf
52 Id. 39

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incarcerated “in low and medium security facilities,” as two of the critical, discretionary factors for consideration. Id.
115. In an April 3, 2020, memorandum to Respondent Carvajal, following the dramatic increases in confirmed COVID-19 cases at FCI Danbury and two other BOP facilities (FCI Oakdale in Louisiana, and FCI Elkton in Ohio), Attorney General Barr affirmed the BOP’s “profound obligation to protect the health and safety of all inmates.”53
116. Attorney General Barr stated: “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.”
117. Attorney General Barr further recognized that, despite “extensive precautions to prevent COVID-19 from entering [BOP] facilities and infecting our prisoners,” those measures “have not been perfectly effective.” Accordingly, he ordered the BOP to take more aggressive
53 Memo from Attorney General to Director of Bureau of Prisons, April 3, 2020, https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf
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steps, immediately, to transfer prisoners to home confinement, even if electronic monitoring will not be available.
118. Echoing the warnings of public health experts, Attorney General Barr stated: “Given the speed with which this disease has spread through the general public, it is clear that time is of the essence.” Id. VI. Respondents Have Failed to Proceed as Promptly as Required in this Crisis to De-
Densify and to Implement the Necessary Social Distancing at BOP Facilities and at FCI Danbury in Particular 119. Notwithstanding Attorney General Barr’s statements, the recommendations of public health officials and the efforts of multiple state jurisdictions to decarcerate their prison populations, Respondents have failed to use the BOP’s available statutory authority to reduce the population of FCI Danbury to mitigate the severe risk posed by COVID-19. Instead, the facility has reversed course, refusing to follow through with transfers to home confinement for individuals previously identified for such home confinement based on their medical vulnerability, and failing to timely respond to requests for emergency compassionate relief or to take other measures appropriate for a public health crisis. 120. According to the BOP’s website, from March 26 (the date of Attorney General Barr’s first memo) through April 25, the agency placed 1576 prisoners nationwide into home confinement—which would constitute only 0.9 percent of the approximately 171,000 prisoners currently held in BOP custody. However, the real number of those released to home confinement may well be less. As the Wall Street Journal reported on April 23: “The bureau said it has started placing at least 1,440 of the roughly 175,000 prisoners it holds into home confinement, but didn’t say how many of those people have actually been released.” Sadie
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Gurman & Rebecca Davis O’Brien, Confusion Hampers Coronavirus-Driven Inmate Releases, Wall Street Journal, April 23, 2020;54 see also Joseph Neff & Keri Blakinger, Few Federal Prisoners Released Under COVID-19 Emergency Policies: A Federal Judge Called the Bureau of Prisons Release Process “Kafkaesque”, The Marshall Project, Apr. 25, 2020 (only 1,027 more prisoners allowed to serve the rest of their sentence in home confinement since Attorney General Barr’s April 3 urgent memo, “about half of 1 percent of the more than 174,000 people in the bureau’s custody”).55
121. The BOP has not disclosed the number of prisoners it typically released per day prior to Attorney General Barr’s memos, nor has it disclosed how many new prisoners have entered BOP custody during the same time period. In short, data from the BOP demonstrate that it is not releasing enough prisoners to protect federal prisons from COVID-19.
122. Indeed, despite concerns by government officials and public health experts, the BOP continues to transfer people from facility to facility. Those transfers increase the likelihood that the virus will be transmitted within the incarcerated population.56
123. On information and belief, the first person at FCI Danbury (then housed in the M Unit of the men’s prison) tested positive for COVID-19 on or about March 28, 2020. [Almonte Decl. ¶ 12].
54 Available at https://www.wsj.com/articles/justice-department-clarifies-coronavirus-driveninmate-releases-11587594242.
55 Available at https://www.themarshallproject.org/2020/04/25/few-federal-prisoners-releasedunder-covid-19-emergency-policies.
56 Luke Barr, Despite Coronavirus Warnings, Federal Bureau of Prisons Still Transferring Prisoners: Sources, ABC News (Mar. 23, 2020, 1:22PM), https://abcnews.go.com/Health/warningsbureau-prisons-transporting-inmates-sources/story?id=69747416
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124. Prior to testing positive for COVID-19, the individual was in contact with many prisoners and staff, necessitating a proper public health response to contain the infection, including the immediate introduction of social distancing and enhanced hygiene measures.
125. However, as set forth above, the very configuration of the confined prison space with sleeping quarters and all ancillary facilities in close physical proximity and multiple prisoners in the same physical space and requiring simultaneous access to the limited available resources, precludes the requisite social distancing without dramatic de-densification. Under existing conditions, neither class members nor staff in any of the three units at FCI Danbury can stay at least six feet away from other people and, therefore, engage in effective social distancing, as called for by the CDC.
126. Moreover, FCI Danbury has failed to take appropriate action as set forth in the relevant CDC Guidance in response to those tests confirming the existence of the virus within its population but rather, persisted in practices and policies which are contrary to social distancing directives and are inconsistent with the needs for enhanced hygiene.
127. Respondents’ failures to adopt and implement adequate policies and procedures to prevent and mitigate the spread of COVID-19 fall into several broad categories which are discussed below.
A. Failures to Triage Cases, Diagnose and Isolate Disease 128. If an incarcerated person exhibits symptoms of COVID-19, the CDC Guidance calls for the individual to be immediately given a face mask, paced in isolation, provided a medical evaluation and treatment, and evaluated for possible testing. By contrast, FCI Danbury has deliberately not sought out potential cases of coronavirus and has not implemented the
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measures called for by the CDC Guidance. By failing meaningfully to isolate prisoners and staff
who are positive for coronavirus, or who exhibit symptoms highly indicative of coronavirus and
present a substantial risk of infecting other prisoners and staff in the unit, the Respondents have
been deliberately indifferent to the known serious medical needs of the Petitioner class.
129. Since the lockdown began, sick call triage in the men’s facility is conducted by a
social worker without medical training, and who is openly contemptuous of the men’s needs. [Cassidy Decl. ¶ 18]57
130. At men’s and women’s facilities, prisoners who present for sick call who do not
exhibit fever are denied access to any further medical follow-up. [Id.; Korbe Decl. ¶¶ 4-6,
Hoisington Decl. ¶ 6].
131. Prisoners who complain to staff of symptoms consistent with COVID-19—
including coughing, congestion and shortness of breath—are routinely unable to obtain
immediate medical examination, are not tested for COVID-19, and are returned to the general
population until their symptoms worsen. [Hoisington Decl. ¶¶ 5-7, 14-15; Korbe Decl. ¶¶ 7, 12; Mason Decl. ¶ 19; Almonte Decl. ¶ 20].58
57 As Mr. Cassidy states: The social worker, Ms. Adamson, has told us “you are all fucking children with nothing more than a flu so stop your shit you’re not going home early.” She has said, “if you did the crime stop crying and do the time.” She has said, “I don’t need medical training to tell you you’re not sick so go lay the fuck down.” [Cassidy Decl. ¶ 18].
58 As Ms. Hoisington – who was subsequently hospitalized with confirmed COVID-19 infection and a temperature of 102 degrees on admission [Hoisington Decl. ¶ 5, 8] – recounts:
I had been feeling sick for a couple weeks before I went to the hospital. I had put in a request to see medical, and had been given two different “idles” to miss programs because I was sick. On March 26 I reported to staff that I wasn’t feeling well ... I went to the medical clinic, but after waiting there for 45 minutes without being seen, I returned to my bunk. A few hours later, I reported to staff on duty that I was feeling worse. I was told to lie back down. By early in the morning of March 27th, around 1 or 2am, I had such bad chest pain that I could
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132. FCI Danbury has further willfully refused to take temperatures or test for fever in order to avoid identifying cases of possible COVID infection. [Almonte Decl. ¶ 15]
133. When prisoners have presented with likely fever, Respondents have on occasion falsely discounted the readings of elevated temperatures in order to avoid taking appropriate follow-up action, including, in particular, isolating the prisoner from the general population and testing to confirm a coronavirus diagnosis.
134. Methods employed by respondents to avoid appropriate follow-up in cases of likely fever include, (1) falsely attributing the reading to equipment error; (2) falsely attributing the reading to operator error; (3) falsely recording identical temperatures for every person tested on a given unit; (4) “resetting” the thermometer while pretending to take another reading; and (5) taking repeat temperature readings after first requiring the prisoner to drink a glass of ice water. [Cassidy Decl. ¶ 14; Mason Decl. ¶¶ 20, 21 (recorded temperatures are artificially low at between 96-97°F because temperature is taken with a remote scanner that is placed too remote from the body; prisoners made to drink cold water after registering elevated temperatures); Korbe Decl. ¶ 5; see also Hoisington Decl. ¶ 8 (reporting that she was transported to the hospital on an emergency basis after persistent symptoms consistent with COVID-19 and that she had a temperature of 102°F on admission after having been told by FCI Danbury staff that a
not sleep. I told the officer on duty, who called the command center, and then called an ambulance. [Id. ¶ 5-7] Similarly, Ms. Korbe – who has been complaining of a headache, cough and lost sense of smell for over a week, has not been screened for COVID-19 and has been maintained in general population throughout. [Korbe Decl. ¶ 4]. Indeed, Ms. Korbe’s cough was so extreme that one of the psychologist upon hearing the cough told Ms. Korbe that she should be tested because she could be infecting others. Notwithstanding that Ms. Korbe asked the one of the psychologists to assist her to obtain appropriate testing, she has not, to date, been tested for COVID-19. [Id. ¶ 6].
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temperature taken within an hour prior to her leaving in the ambulance had purportedly
registered a reading of 97°F)].59
135. Even where prisoners have presented with confirmed fever, respondents have
failed to isolate the prisoner from the general population. Rather, in many instances, respondents
have returned the prisoner to his or her unit with instruction to take two to three Tylenol and will
only proceed to isolate the prisoner if his or her fever does not respond after that time. [Cassidy
Decl. ¶ 12; Mason Decl. ¶ 20].
136. When temperatures are taken, they are often not being recorded in the medical
records. [Mason Decl. ¶ 21].
137. Prison staff have further denigrated or dismissed prisoners exhibiting clear
symptoms of coronavirus, telling prisoners with headache, body ache, shortness of breath or even
59 As Ms. Hoisington states, on April 17, after previously having tested positive for COVID-19, she started to get symptoms again, including weakness, fever, terrible body pains, sweating and dry heaving. She was taken to the medical clinic where her temperature was recorded at 98 degrees (which she believed to be incorrect but which was not re-taken despite her presenting symptoms). Notwithstanding that her oxygenation only registered at 96 and her blood pressure was so high that the nurse took it three times, the nurse instructed her to take Tylenol and return to her unit. [Hoisington Decl. ¶ 15].
As Mr. Cassidy recounts: “For the last couple weeks, prisoners with a fever are taken to medical. Sometimes, however, a prisoner has a fever and the associate warden attributes the temperature reading to equipment error. When the temperature wand comes up with a low-grade fever, the associate warden will ‘reset’ it and pretend to take another reading. He will announce another number, but he won’t even aim the wand at the prisoner’s forehead. The associate warden does not show the prisoners the LCD screen on the wand that displays the temperature, so we have to go by whatever they tell us. … If the associate warden acknowledges that a prisoner has a temperature, then he will escort the prisoner to medical. At medical, the prisoner is given two or three Tylenol and told that the device is not working properly and that they do not have a fever. This has happened to more than 20 prisoners in my unit. One of the prisoners has been vomiting blood all week. When his temperature was taken in the unit, he was told he has a 101.2 degree fever. When he got to medical, he was given Tylenol, told that his temperature is 98.7 degrees, and sent back to the unit. When he got back to the unit, he told us that they never took his temperature in medical. His forehead was hot. [Cassidy Decl. ¶¶ 13-14].
According to Ms. Korbe, staff members have been taking all of the inmates’ temperatures every day: “They have us line up in rows to do this. I have noticed that everyone in the same row is told that they have the exact same temperature.” [Korbe Decl. ¶ 14].
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chest pains that there is nothing that they can do, that the prisoner merely suffers from “overblown flu,” that the prisoner “did the crime” and should “do the time,” and/or that the coronavirus epidemic is not “going to get you out of prison.” [Cassidy Decl. ¶¶ 9, 18; Korbe Decl. ¶ 16 (staff criticized prisoners’ concern about medical emergency in FSL, telling women to “stay in our lane” because they weren’t doctors)].
138. Respondents’ failure to de-densify the population at FCI Danbury and their inadequate manner of responding to suspected COVID-19 cases places the putative class at an unreasonable risk of contracting COVID-19.
B. Failure to Respond Adequately to Cases of Close Contact or Observe Appropriate Quarantine/Isolation
139. CDC Guidance directs prisons to implement 14-day quarantines/isolation of prisoners or staff who have had contact with people known to have tested positive for COVID19, to monitor such Close Contact Cases for COVID-19 symptoms, and to keep staff members out of the facility unless they are asymptomatic 14 days after their exposure to COVID-19. Contrary to this Guidance, Respondents routinely fail to test or isolate prisoners with known close contact with individuals subsequently diagnosed with coronavirus. [Cassidy Decl. ¶¶ 31, 41; Hoisington Decl. ¶¶ 14, 17 (recounting failure to test prisoners in close contact with prisoner hospitalized with COVID-19 infection)].
140. Prisoners who test positive for COVID-19 are frequently returned to the general population far earlier than appropriate pursuant to CDC Guidance.60 [Declaration of Tamika Somerville, submitted herewith as Exhibit I (“Sommerville Decl.”) ¶ 13 (women testing positive
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for COVID-19 on Tuesday returned to the unit that same Friday); Madore Decl. ¶ 12; Cassidy Decl. ¶ 15 (reporting that two individuals returned to the unit within 5-6 days after testing positive for COVID-19, resulting in a substantial outbreak on the unit); Almonte Decl. ¶ 17; Mason Decl. ¶ 18].
141. Due to staff shortages, prisoners are often required to respond to a medical emergency such as another prisoner collapsing on the unit. Notwithstanding that the collapse of a grown man in the context of a pervasive outbreak is highly suggestive of a COVID-19 infection, prisoners who respond in this fashion are not thereafter followed for possible infection or otherwise isolated from the rest of the population. [Cassidy Decl. ¶ 31; Hoisington Decl. ¶ 13 (women had to bang front door to facility to get attention of someone in parking lot when there was no available officer to attend to women who was unconscious after hitting her head on concrete floor)].61
142. Contrary to CDC Guidance, prison staff, including those working in food services, have not been allowed to call in and explain that they are sick or have returned to work at times when medical professionals advised that they were still potential carriers. [MartinezBrooks Decl. ¶ 20; Mason Decl. ¶ 15 (“Officers have returned to work after being unable to get their FMLA papers signed, but remain symptomatic. One officer stated that they still feel ill and do not want to be at work, but were told to return.”)].
143. Working correctional officers who are sick or who were previously diagnosed as positive for COVID-19 have advised prisoners to keep their distance since they do not know
60 As set forth in the Declaration of Tamika Somerville, who is housed in the FSL, a woman in her unit who tested positive for COVID-19 on a Tuesday was returned to the general population on Friday, three days later. [Somerville Decl., ¶ 13].
61 Mr. Cassidy has observed at least three prisoner medical emergencies that were addressed only 48

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whether they are sufficiently recovered to no longer present a risk of infection to people with whom they come in contact. [Mason Decl. ¶ 15].
144. FCI Danbury has failed to observe appropriate isolation for new prisoners, and prisoners have been permitted into the facility without observance of proper quarantine pursuant to CDC Guidance. [Martinez-Brooks Decl. ¶ 12].
145. Respondents’ failure to implement appropriate isolation procedures is reckless and places the putative class at an unreasonable risk of contracting COVID-19.
C. Failure to Remediate Adequately Spaces with Known Coronavirus Contact and to Inform Prisoners of the Extent of Infection
146. In the event a prisoner or staff member tests positive for COVID-19, CDC Guidance calls for the facility to close off the areas used by that person. These areas are to be well ventilated for at least 24 hours before they are disinfected by people equipped with proper personal protective equipment (“PPE”). Respondents have failed to implement any of these measures.
147. In addition, FCI Danbury has departed from CDC Guidance by not informing incarcerated prisoners that someone in their unit has tested positive for COVID-19, thereby depriving petitioners and the class members of the opportunity to exercise more vigilance in their hygiene and cleaning habits when extra vigilance is needed most. Petitioners and the putative class members have not been informed of the extent of the outbreak at FCI Danbury. [Mason Decl. ¶ 16 (FSL prisoners learned about COVID-19 outbreak in the facility because it was reported on the news)]; Declaration of Theresa Foreman, submitted herewith as Exhibit J
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(“Foreman Decl.”) ¶ 19 (the Assistant Warden informed the women that they wouldn’t be told if they were exposed to COVID-19)].
148. Respondents know that these failures to adequately remediate spaces with known coronavirus contact or to advise petitioners and the putative class members of the extent of the outbreak at the facility unnecessarily heightens the risk that petitioners and the putative class members will contract COVID-19.
D. Failure to Implement Adequately Social Distancing Measures 149. As set forth above, the very configuration of FCI Danbury precludes meaningful social distancing. The overwhelming majority of the facility’s prisoners in each of the three facilities are housed dormitory-style and all prisoners in these configurations sleep within 3 to 4 feet of between 3 and 5 other prisoners. [Mason Decl. ¶ 7; Martinez-Brooks Decl. ¶ 7; Cassidy Decl. ¶ 31; Declaration of Ronald Harper, submitted herewith as Exhibit N (Harper Decl.) ¶ 4]. Prisoners use the same bathrooms and share a limited number of toilets, sinks and showers. [Mason Decl. ¶ 10; Martinez-Brooks Decl. ¶¶ 6, 10; Cassidy Decl. ¶ 32; Harper Decl. ¶ 4]. Prisoners further must share a limited number of telephones and computers which are located close together in a common area [Mason Decl. ¶ 8; Martinez-Brooks Decl. ¶ 9; Cassidy Decl. ¶¶ 35-36] and which are rarely cleaned or disinfected (and are not disinfected after each use). [Korbe Decl. ¶ 11; Cassidy Decl. ¶¶ 35-36]. 150. FCI Danbury has failed to implement adequate social distancing measures in other aspects of prison life. For example, prisoners are regularly unnecessarily made to line up in close proximity to one another to receive their meals and when medications are dispensed. [Almonte Decl. ¶ 13; Cassidy Decl. ¶ 39 (“Staff give out medication twice a day. They shout
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‘medication’ and stand outside the door. Prisoners form a pill line, standing right next to each other. If you don’t hear ‘medication’ you don’t get your medication for the day, so everyone comes up at the same time and crowds each other.”)].
151. Prisoners likewise mass together for commissary which, in the dorms in the men’s units, is brought into the central dormitory hallway in a laundry bin. The men on the dorm then stand in the narrow hallway in close proximity to one another while waiting for their names to be called. [Cassidy Decl. ¶ 37].
152. Prisoners further congregate in close proximity in unacceptably large numbers in recreation areas and in common areas to watch television, to use the telephones and computers, and for meals. [Declaration of Antrum Coston, submitted herewith as Exhibit K (“Coston Decl.”) ¶ 4; Almonte Decl. ¶ 8; Mason Decl. ¶¶ 8-9].
153. Staff move regularly between units, in contravention of proper social distancing practices, thereby exacerbating the spread of undiagnosed disease from one part of the facility to another. [Martinez-Brooks Decl. ¶ 19 (staff move between all four dorms in the camp for count, food delivery and commissary and staff at camp also work at the other two facilities at FCI Danbury)].
154. Respondents have inappropriately moved prisoners from rooms where greater separation was possible into dorms in the women’s camp, pushing the populations of A, B and C dorms to almost full capacity, thereby dramatically reducing the ability of occupants of those dorms to practice any form of social distancing. [Martinez-Brooks Decl. ¶ 5]. Despite the lockdown at the camp, women from one dorm out for recreation have been visiting friends in other dorms. [Id. ¶ 15].
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155. Respondents have further isolated prisoners nearing the end of their sentences and preparing for halfway house or other release, but subsequently rendered such isolation ineffective by moving other prisoners with unknown COVID-19 exposures onto those previously isolated units. [Martinez-Brooks Decl. ¶ 13].
156. Respondents further initially isolated medically-vulnerable prisoners who were notified that they were going to be transferred to home confinement but, after reversing policy and putting such transfers on hold, have rendered those isolations ineffective—and have put medically-vulnerable prisoners at undue risk—by moving other prisoners with unknown COVID-19 exposures onto those previously isolated units. [Id.].
157. Respondents’ failure to implement adequate social distancing measures places petitioners and the putative class members at unnecessarily heightened risk of contracting COVID-19.
E. Failure to Implement Necessary Hygiene Measures 158. CDC Guidance requires heightened hygienic, cleaning and disinfecting practices in order to prevent and mitigate COVID-19 infection. FCI Danbury has failed adequately to implement these heightened hygienic and cleaning practices. Petitioners do not have access to the cleaning supplies necessary to sanitize themselves, their personal items, or their living areas. 159. Prisoners at FCI Danbury are responsible for cleaning their own cubicles or dormitory spaces. Prisoners do not have adequate cleaning supplies, shared living spaces throughout the facility are not regularly or properly disinfected to prevent the spread of COVID19. [Madore Decl. ¶ 6].
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160. Common spaces are cleaned by prisoners who are assigned jobs as cleaners, but many women have quit their jobs and cleaning has been sporadic. [Martinez-Brooks Decl. ¶ 9; Almonte Decl. ¶ 22]. The common toilets, sinks and showers are not regularly or properly disinfected to prevent the spread of COVID-19.
161. Telephones, computers and video calling equipment and televisions shared by hundreds of prisoners are not cleaned or disinfected between uses and the common areas in which that equipment is located is not regularly or properly disinfected to prevent the spread of COVID-19. [Cassidy Decl. ¶¶ 36-37].
162. No professional or staff cleaners have sanitized the units where prisoners who tested positive have been housed, but instead those units are being cleaned by prisoner orderlies with the same cleaning supplies they regularly use and without provision of sufficient gloves and masks. [Martinez-Brooks Decl. ¶ 8; Mason Decl. ¶ 8; Almonte Decl. ¶ 22; Declaration of Shannon Benson, submitted herewith as Exhibit L (Benson Decl.”) ¶ 8; Cassidy Decl. ¶ 33; Coston Decl. ¶¶ 7, 15).
163. FCI Danbury has provided inadequate access to soap and sanitizers. The prison has not created any hand-washing stations or provided prisoners with hand sanitizer. [Coston Decl. ¶ 15; Somerville Decl. ¶ 10; Mason Decl. ¶ 12]. Nor has hand sanitizer been available in the commissary for the duration of the current COVID-19 crisis. [Coston Decl. ¶ 15]. Liquid soap dispensers have only recently been installed in the men’s prison, but they are not regularly restocked and the prisoners have to wait a day or two to get it refilled. [Cassidy Decl. ¶ 34 (men’s unit)].
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164. There are no paper towels or hand towels, so prisoners have to use toilet paper or their clothing to dry their hands. [Cassidy Decl. ¶ 34; Martinez-Brooks Decl. ¶ 8].
165. Soap must be purchased from the commissary and is unavailable to indigent prisoners. Prisoners are not provided with cleaning supplies either.62 [Cassidy Decl. ¶ 34].
166. The prison does not distribute shampoo, toothpaste or mouthwash which must be purchased from the commissary and are, therefore, unavailable to indigent prisoners. [Id.].
167. Since the epidemic, laundry is done once a week (depending on the availability of hot water or staff to perform the function), leaving used clothing and bedding exposed to the virus. [Cassidy Decl. ¶ 20].
168. Prisoners in the facility have further been assigned to handle laundry, mattresses and bedding of individuals isolated for COVID, exposing those prisoners in turn to possible infection.
169. Isolation facilities are further inadequate and unhygienic. The isolation room at the FSL is cold and small, with just enough room for a bed and a toilet. The bed has a one-inch thick mattress and no pillow. The toilet’s flush is controlled by the corrections officer and is only flushed a few times a day. [Hoisington Decl. ¶ 11].
170. FSL subsequently required overflow isolation for individuals returning from hospital or with confirmed diagnosis positive for COVID-19 and was required to convert the visiting room at the facility. Four women were housed in the visiting room and were required to use the visiting room bathrooms and had to shower in a temporary stand-up stall built in the bathroom to enable them to bathe. [Id. ¶ 13].
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171. Some prisoners who are in quarantine are held in a room with no running water. 172. Men have been isolated in an observation cell where they do not have consistent access to meals and showers and often experience medication delays. Men isolated in observation cells were further unable to communicate with their families or other prisoners in the facility. [Declaration of Richard Johnson, submitted herewith as Exhibit M, ¶¶ 7-8]. 173. More than 40 women in the FSL are currently quarantined in the facility’s dining hall/kitchen. [Hoisington Decl. ¶ 17]. 174. The FSL frequently has issues with water which is often shut off for a few hours or for as long as a day at a time, during which time nobody in FSL is able to wash their hands or flush the toilet. [Mason Decl. ¶ 11]. 175. Cleaning is now sporadic in many areas of the camp since prisoners who were previously assigned to clean different areas of the facility have either quit their jobs or have been isolated in different dorms from their assigned cleaning area. [Martinez-Brooks Decl. ¶ 8]. 176. These unsanitary conditions and inadequate levels of cleaning and disinfecting, which are in contravention of the CDC Guidance, place petitioners and the putative class members at an inexcusably higher risk of contracting COVID-19. F. Failure to Plan Adequately to Prevent or Mitigate the Spread of COVID-19
Infection 177. CDC Guidance recommends that correctional facilities should develop contingency plans for reduced workforces due to staff absences. That Guidance also calls for the provision of PPE and contingency planning for shortages of PPE. FCI Danbury has failed to
62 During the early weeks of the crisis, respondents actively confiscated spray bottles that prisoners used for cleaning. Those spray bottles are now only available to prisoners in the counselor’s office. [Almonte Decl. ¶ 21].
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adequately plan for either inevitable staff shortages or the need for PPE, placing petitioners and the putative class members at heightened risk.
178. As set forth above, respondents have required correctional staff who were ill— including correctional staff in close contact with individuals exposed to COVID-19 and correctional staff who were confirmed positive for COVID-19—to return to work before they were symptom-free and earlier than appropriate pursuant to applicable CDC Guidance. [Mason Decl., ¶ 15].
179. Prisoners at FCI Danbury were not provided with fabric masks until in or about mid-April. [Mason Decl. ¶ 13]. Prior to that time, prisoners were dependent on paper masks or had to fashion their own masks. [Id.]. However, in many parts of the facility, FCI Danbury only provides one mask per prisoner and, therefore, prisoners have no protection when their masks are being washed. [Somerville Decl. ¶ 11]. Several prisoners in the men’s prison are dependent on paper disposable hospital masks that fall apart when they come in contact with water. [Cassidy Decl. ¶ 40].
180. Prisoners—including prisoners on cleaning duty—are not provided with gloves to protect their hands from exposed surfaces. [Id.; Foreman Decl. ¶ 16].
181. Correctional officers and staff, likewise were not provided with fabric masks until approximately mid-April. [Mason Decl. ¶ 14].
182. Moreover, usage of PPE is inconsistent and correctional staff does not enforce mask usage on prisoners who refuse to cover their faces, [Cassidy Decl. ¶40], nor does correctional staff consistently wear masks or gloves when they are on the units. [MartinezBrooks Decl. ¶ 16; Cassidy Decl. ¶ 41].
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G. Failure to Implement the Training and Interventions Necessary to Prevent the Spread of COVID-19
183. CDC Guidance states that correctional staff and incarcerated people should be trained on donning, doffing and disposing of PPE. CDC Guidance further recommends that correctional facilities post signage informing staff and incarcerated people how to report COVID-19 symptoms and advising staff to stay at home when sick. FCI Danbury has failed adequately to implement either of these training and educational interventions. [See, e.g., Cassidy Decl. ¶ 42 (staff go into quarantine units and then return to units that are purportedly COVID-free without changing gloves and masks or will remove gloves without washing hands)]. FCI Danbury has further failed to provide prisoners or staff with clear guidance on what to do to protect themselves and prisoners are often reluctant to report symptoms because they have no expectation that they will receive effective treatment and fear being isolated away from their friends and property in quarantine units that are often insufficiently hygienic. [Mason Decl. ¶ 22].
H. Respondents’ Failures to Respond to the COVID-19 Epidemic Have Further Put Petitioners and Putative Class Members at Unacceptably Heightened Risk of Injury and Illness Unrelated to COVID-19
184. Respondents’ failure to prepare adequately for the COVID-19 epidemic has also put petitioners and the putative class members at heightened risk of other injury and illness.
185. FCI Danbury is experiencing significant staff shortages. Many correctional officers are absent and those who are working are putting in significant overtime.
186. The performance of the duties of correctional officers is being augmented by noncorrectional staff (such as medical or educational staff) who cover units when there are insufficient correctional staff. [Cassidy Decl. ¶ 30].
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187. As a result of staff shortages, correctional officers and other staff are often only available on the units for limited amounts of time, generally for count, resulting in significantly extended response times in the event of emergencies on the units. On at least one occasion, when a prisoner experienced chest pains on a unit in which no correctional officer was present, other prisoners on the unit were required to yell out the window in the hopes that a staff member could hear them and could respond to the medical emergency. [Cassidy Decl. ¶ 31; Hoisington Decl. ¶ 13 (on one occasion in isolation unit in FSL visiting room, one of the quarantined prisoners fell in the bathroom and hit her head on the concrete floor, rendering her unconscious. There was no nearby guard and the prisoners were required to bang on the locked front door to the facility; help only arrived because someone in the parking lot heard the prisoners and called control)].
188. As a result of the increased attention to the COVID epidemic, non-virus medical needs have gone unattended. The regular prison physicians have been absent or are no longer available to prisoners on the unit, prisoners who do not present with fever during sick call cannot be referred to a physician, and sick call requests for other than virus symptoms go unanswered for prolonged periods of time. [Cassidy Decl. ¶ 17; Martinez-Brooks Decl. ¶ 23].63
189. Recently, the prison pharmacy has been closed. Medications must be shipped from another facility (USP Allenwood in Pennsylvania) resulting in delays in their delivery and disruption of medication regimens. [Cassidy Decl. ¶ 7 (two week delay in receipt of correct dosage of medication); Martinez-Brooks Decl. ¶ 23 (8 day delay in refill of hypertension medication)].
63 Petitioner Kenneth Cassidy suffers from intestinal disease, including diverticulitis. [Cassidy Decl. ¶ 5]. He has recently developed an abnormal growth in the rectum which has resulted on occasion in dark black blood in feces and obstruction of his bowel. Although he has made at least three requests
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190. Special medical diets are not available to prisoners at FCI Danbury. As a result, on repeated occasions, special-diet prisoners have received meals containing ingredients dangerously harmful to their health, including, for example, delivery of meals containing peanut products to allergic patients at risk of anaphylaxis, or delivery of meals containing rice and beans to prisoners with diverticulosis. [Cassidy Decl. ¶¶ 20, 22; Martinez-Brooks Decl. ¶ 22 (peanut butter was served multiple times in a dorm housing a woman with severe peanut allergy)].
191. As a result of the epidemic, food service has been reduced below BOP guidelines for caloric intake and nutritional value; food reductions put petitioners and putative class members at heightened risk of adverse health effects. [Cassidy Decl. ¶ 21].64
192. Respondents’ failures to respond appropriately to the coronavirus outbreak in FCI Danbury has, likewise, endangered prison staff. In an “Imminent Danger Report” filed with the Occupational Safety and Health Administration (“OSHA”) on March 31, 2020, the President of the union that represents many BOP staff reported health and safety hazards across many BOP facilities – including FCI Danbury – related to COVID-19, including:
a. Contrary to CDC guidelines, officials have directed staff throughout the BOP who have come into contact with, or been in close proximity to, individuals who show or have shown symptoms of COVID-19, to report to work and not self-quarantine for 14 days;
for a medical visit to assess and diagnose his condition, he has been advised that his condition is not an emergency and that the medical team is currently unavailable to evaluate him. [Id. ¶ 17].
64 The COVID-19 pandemic has also resulted in worrisome curtailment of prisoners’ legal rights. The prison law library has been closed and locked and the administrative remedy process has been suspended indefinitely. Legal mail is being delayed and at times not picked up due to staff shortages. Legal calls are being denied and legal requests from attorneys are often going unanswered, including for open and pending cases that require access to attorneys such as the development of pleadings in connection with motions for compassionate release. [Cassidy Decl. ¶¶ 25-27].
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b. The BOP has violated CDC Guidelines by continuously moving prisoners by bus and/or airlift to various prison sites across the nation, including infected prisoners, prisoners suspected of being infected, and prisoners who have been in close contact with, or proximity to, infected prisoners;
c. The BOP has failed to introduce workplace controls to mitigate exposure or further exposure to the virus, such as high efficiency air filters to minimize the airborne nature of the virus or otherwise improve ventilation;
d. The BOP has failed to minimize contact within recreation areas, education areas, counseling/treatment rooms, resulting in prisoners and staff coming in dangerously close contact with each other; and
e. The BOP has failed to comply with OSHA Personal Protective Equipment Standards.65
VII. FCI Danbury Is Not Prepared to Treat Individuals Who Contract Coronavirus 193. Prisoners who do contract COVID-19 are at higher risk for developing acute
symptoms than if they were in the community, because FCI Danbury lacks the medical resources to care for symptomatic prisoners, creating a continuing unacceptable danger to petitioners and putative class members.
194. Now that COVID-19 is inside the facility, FCI Danbury will be unable to stop the spread of the virus throughout the facility given long-documented inadequacies in BOP’s medical care and in light of how these facilities function.
65 Available at https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha7-form-national-complaint.pdf .
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195. There is no separate medical unit or facility for ill prisoners at the men’s facility or either facility for women. Unlike many Federal Correctional Institutions, FCI Danbury has no physical space in which an ill prisoner can convalesce that is separate from other prisoners, warm, clean and has access to fresh water and regular hand-washing.
196. On information and belief, FCI Danbury has woefully inadequate numbers of nasal swab COVID-19 test kits, requiring correctional staff to ration those few available kits and to refuse testing to prisoners clearly exhibiting symptoms of COVID-19 infection. As a result of the lack of testing and confirmation of actual infections in the facility, FCI Danbury is failing to implement appropriate isolation practices thus accelerating the spread of the infection within the institution.66
197. FCI Danbury currently has no ventilators and cannot intubate prisoners on-site. FCI Danbury does not have any specialized equipment or medical providers.
198. On information and belief there are only 2 (and possibly fewer) doctors available at FCI Danbury to care for all 1,046 prisoners. Even this highly limited number is likely to decrease as doctors themselves go into quarantine. None of these doctors specializes in infectious diseases.
66 Earlier in April 2020 the warden at Metropolitan Correctional Center in Manhattan, a BOP facility, advised in a letter to United States District Judge Paul Engelmayer that MCC could not test a defendant in a matter pending before that court exhibiting COVID-19 symptoms because “MCC New York does not have COVID-19 tests.” See No COVID-19 tests available for prisoners at center of New York outbreak, court documents show, ABCNews (April 4, 2020, 6:00 am), available at https://abcnews.go.com/Health/covid-19-tests-prisoners-center-york-outbreak-court/story?id=69969077. At the same time, Bureau of Prisons officials confirmed to ABC news that FCI Oakdale prisoners showing symptoms in the middle of an outbreak at that facility wouldn’t be tested because tests were too scarce. Id. At the same time, another federal facility in New York, the Metropolitan Detention Center in Brooklyn, court filings before U.S. District Judge Rachel Kovner revealed that only seven of 1,700 prisoners in that facility had been tested. Id.
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199. People who contract COVID-19 can deteriorate rapidly, even before a test result can be received. They need constant monitoring. Most people in the higher risk categories will require more advanced support: positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Such care requires specialized equipment in limited supply as well as an entire team of specialized care providers. FCI Danbury does not have that specialized equipment or specialized providers.
200. FCI Danbury is short-staffed. As of April 25, 2020, 38 staff members have tested positive and several more are symptomatic; correctional officers are understandably hesitant to come to work. This staffing shortage will only increase as employees need to stay home to care for children whose schools are closed, elderly family members, and other personal health situations. With fewer staff, correctional officers are less able to monitor prisoners’ health. VIII. The Situation at FCI Danbury Imposes Undue Risks on the Surrounding
Community that result in further harm to the Petitioner Class 201. FCI Danbury is located in Fairfield County, Connecticut—the hardest hit area of the State with over 10,500 confirmed cases of COVID-19 infection and 707 deaths as of April 27, 2020.67 202. Diseases in prison put staff and surrounding community at risk. When the COVID-19 virus is introduced to a prison, all persons within the facility – whether they are staff or incarcerated people – are at heightened risk of contracting the virus and, in turn, spreading the virus to others with whom they live or come into contact with in their own homes and neighborhoods.68 The harm caused by a COVID-19 outbreak in a correctional facility, therefore,
67 COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), https://www.arcgis.com/apps/opsdashboard/index.html
68 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case 62

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is not confined to those who are incarcerated or work in that facility. Instead, this harm poses a serious health risk to the surrounding community on which Petitioner class needs to rely for health care as well as for general services through staffing of FCI.
203. For example, scarce community health resources like emergency departments, hospital beds, and ventilators would inevitably become more scarce in the event of a COVID-19 outbreak in a detention facility, because incarcerated people are more likely to have underlying medical conditions that carry a significantly increased risk of severe complications from COVID-19.
204. A COVID-19 outbreak would exceed the capacity of the local health infrastructure because treatment for serious cases requires significant medical intervention, including ventilator assistance and intensive care support. If the need for ICU beds and lifesaving medical equipment exceeds supply, the death rate will increase for the entire population of Connecticut.
CLAIM FOR RELIEF (Declaratory and Injunctive Relief for Violation of the Eighth Amendments) 205. Petitioners reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein 206. Respondents are holding Petitioners and all putative class members in violation of the Constitution by detaining them in the face of significant threats to their health and safety without taking sufficient steps to prevent that harm.
for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/
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207. Respondents’ failure to provide adequate medical care in response to a widespread outbreak of a contagious disease constitutes deliberate indifference to the serious, known medical needs of detainees, thereby establishing a violation of the Eighth Amendment of the United States Constitution.
208. Because of the conditions at FCI Danbury, Petitioners are not able to take steps to protect themselves—such as social distancing, using hand sanitizer, washing their hands regularly, and disinfecting their surroundings—and the government has not provided adequate protections. As COVID-19 rapidly spreads at FCI Danbury in a matter of days, as experts predict, the already deplorable conditions at FCI Danbury will be exacerbated, and the ability to protect oneself will become even more impossible.
209. Respondents’ failure adequately to protect Petitioners from these punitive conditions, or release them from the conditions altogether, constitutes deliberate indifference to the serious known medical needs of Petitioners, and all members of the Class, thereby establishing a violation of the Eighth Amendment of the United States Constitution.
210. Respondents were aware of the medical needs of the population and the pervasiveness of prisoners and staff exhibiting COVID-19 symptoms throughout the prison.
211. Respondents knew of and disregarded an excessive risk to health and safety. 212. Respondents failed to act with reasonable care to mitigate these risks. 213. Because Respondents failed to act to remedy Petitioners’ and the Class’s degrading and inhuman conditions of confinement in violation of their Eighth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus.
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214. Because of the unlawful conduct of Respondents, Petitioners and the Class are threatened with imminent physical injury, pain and suffering, emotional distress, humiliation, and death.
215. Petitioners have no adequate remedy at law and will suffer irreparable harm unless the court acts immediately to grant the relief requested herein.
THE NEED FOR ENLARGEMENT AS A PROVISIONAL REMEDY 216. Federal district courts have authority, when habeas actions are pending, to “enlarge” the custody of petitioners. Enlargement is not release. Rather, it is a provisional remedy that modifies custody by expanding the site at which it takes place, upon order of the court, from a particular prison to another setting; as requested here, to home confinement. See Exhibit B, Declaration of Professor Judith Resnik Regarding Enlargement and the Use of Provisional Remedies for Detained Individuals ¶¶ 28-29. The enlargement power stems from Congress’s authorization of federal judges under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require” as well as the courts’ inherent powers. See 28 U.S.C. § 2243. 217. To qualify for the enlargement remedy, an individual must show “extraordinary circumstances” and that the underlying claim raises “substantial claims.” Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). 218. Petitioners and the putative Subclass members meet these requirements because of the extreme risk that COVID-19 poses, especially in light of their ages and medical conditions, and because of the particular conditions of confinement at FCI Danbury. If petitioners and putative Subclass members remain incarcerated, there is a high risk that they will
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contract COVID-19 and, as a result, suffer severe illness or death. Immediate release to permit petitioners and putative Subclass members to serve their sentences on home confinement during the pendency of this action is thus the only way to effectuate the eventual habeas remedy.
PRAYER FOR RELIEF WHEREFORE, Petitioners and proposed class members respectfully request that this Court:
a. Certify the proposed Class and Subclass pursuant to Fed. R. Civ. Pro. 23(B)(1) and (B)(2);
b. Pursuant to 28 U.S.C. § 2243 and this Court’s inherent powers, enlarge petitioners and Subclass members pending disposition of the underlying petition;
c. Pursuant to 28 U.S.C. § 2243 and issued “forthwith,” issue an Order to Show Cause requiring Respondents to identify within twenty-four (24) hours of the Court’s order, and submit to the Court a list of, all Subclass members, and requiring Respondents to answer as to why the habeas petition and relief sought herein should not be granted;
d. Issue a Writ of Habeas Corpus and/or pursuant to Fed. R. Civ. Pro. 65, enter a temporary restraining order, preliminary injunction, and permanent injunction requiring Respondents to release from custody or to home confinement members of the Subclass and requiring Respondents to provide medically adequate social distancing and health care and sanitation for members of the Class who remain;
e. Enter an order pursuant to 28 U.S.C. § 2201-2202, declaring that Respondents' policies and practices regarding COVID-19 violate the Eighth Amendment to the United States Constitution;
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f. Appoint a special master pursuant to Fed. R. Civ. Pro. 63 or an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding the number of incarcerated people that FCI Danbury can house consistent with CDC Guidance on best social distancing and hygiene practices to prevent the spread of COVID-19.
g. Issue a Writ of Habeas Corpus and/or pursuant to Fed. R. Civ. P. 65 enter an injunction requiring Respondents to: 1. Ensure that incarcerated individuals can remain six feet apart to practice social distancing in compliance with CDC Guidance; 2. Ensure that each incarcerated individual receives a free and adequate personal supply of: hand soap sufficient to permit frequent hand washing, paper towels, facial tissues, cleaning implements such as sponges or brushes, and disinfectant products that are effective against COVID-19; 3. Ensure that all individuals have access to hand sanitizer containing at least 60% alcohol; 4. Provide daily access to showers and clean laundry, including clean towels after each shower; 5. Require that all FCI Danbury staff wear PPE consistent with the CDC Guidance, including masks and gloves, when interacting with visitors and incarcerated individuals or when touching surfaces in common areas;
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6. Provide an anonymous mechanism for incarcerated individuals to report staff who violate these guidelines so that appropriate corrective action may be taken;
7. Take each incarcerated person's temperature daily (with a properly disinfected and accurate thermometer) to identify potential COVID-19 infections;
8. Assess each incarcerated individual daily through questioning to identify potential COVID-19 infections;
9. Conduct immediate testing for anyone displaying known symptoms of COVID-19;
10. Immediately provide clean masks for all individuals who display or report potential COVID-19 symptoms until they can be evaluated by a qualified medical professional or placed in non-punitive quarantine and ensure the masks are properly laundered with replacements as necessary;
11. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, commissary, phone and video visitation with loved ones, communication with counsel, and personal property;
12. Clean and disinfect frequently touched surfaces with disinfectant products effective against the virus that causes COVID-19 (at the
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manufacturer's recommended concentration), as well as surfaces in common areas, every two hours during waking hours, and at least once during the night; 13. Ensure incarcerated people are provided guidance on how to protect themselves from COVID-19 and reduce COVID-19 transmission; 14. Assure incarcerated people are told that they will not be retaliated against for reporting COVID-19 symptoms; 15. Respond to all emergency (as defined by the medical community)requests for medical attention within an hour; 16. Provide incarcerated individuals with sufficient and effective cleaning supplies free of charge so that they may clean frequently touched items, such as phones, before use; 17. Provide frequent communication to all incarcerated individuals regarding COVID-19, measures taken to reduce the risk of infection, best practices for incarcerated people to avoid infection, and any changes in policies or practices; 18. Craft a mechanism to ensure compliance through the appointment of an independent monitor with medical expertise to ensure compliance with these conditions, and provide the monitor with unfettered access to medical units, confidential communication with
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detained individuals in and out of quarantine, and surveillance video of public areas of the facilities; h. Retain jurisdiction over this case until Defendants/Respondents have fully complied with the orders of this Court, and there is a reasonable assurance that they will continue to comply in the future, absent continuing jurisdiction; i. Award appropriate attorneys’ fees; and j. Grant such further relief as the Court deems just and proper.

Dated April 27, 2020

Respectfully Submitted,
____/s/_David S. Golub_________ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver, Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Phone: (203) 325-4491 Email: dgolub@sgtlaw.com
jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Phone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu
tessa.bialek@quinnpiac.edu
Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org
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Case 3:20-cv-00569 Document 1 Filed 04/27/20 Page 71 of 71 Alexandra Harrington* 127 Wall Street New Haven, CT 06511 Phone: 203-436-3532 alexandra.harrington@yale.edu Counsel for the Petitioners Dianthe Martinez-Brooks, Rejeanne Collier, Jackie Madore, and Kenneth Cassidy *Application for Admission Pending
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EXHIBIT A

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Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system. In making the following statements, I am not commenting on the particular issues posed this case. Rather, I am making general statements about the realities of persons in detention facilities, jails and prisons.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I was paid $1,000 for my time drafting an earlier version of this report filed in another case. I subsequently prepared this version of the report without receiving payment for my services.
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6. I testified as an expert at a single trial or by deposition in the past four years: State v. Frank Sanville, Docket No. 263-3-18 Wrcr (Vermont) on April 21, 2020.
II. Heightened Risk of Epidemics in Jails and Prisons
7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a
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lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, 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/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place. Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html.
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potentially transmit the virus to others.
25. Systems are challenged to respond to COVID-19 guidelines that are modified on a neardaily basis. It may be impossible to adequately respond to the COVID-19 pandemic, while also respecting the rights and dignity of people who are incarcerated.
IV. Possible Risks of COVID-19 in Federal Bureau of Prisons Facilities in Danbury, Connecticut
26. From approximately 2017-2018, I volunteered to provide AIDS Awareness Programming for all women housed at the Camp and the Satellite Low (FSL) facilities at FCI Danbury. In doing so, I interacted with the resident inmates in common meetings areas on a monthly basis in groups as small as 10 and as large as 100. I have additionally toured all areas of the FSL facility in January 2018 with leadership from the National Association of Women Judges. I last entered the facilities in approximately Summer 2018.
27. The FSL facility is comprised of a single large dormitory style room, in which all of the women sleep on bunks. There is also a library, a laundry room, a group meeting area, and a space for exercise. In the adjoining building, there are multiple classrooms and meeting spaces. There was an infirmary staffed intermittently by a physician or nurse practitioner, who was available for sick call. For other medical needs, women were brought into the men’s facility to see the healthcare provider by appointment. All serious medical needs and specialty visits were referred to the nearby Danbury Hospital. Per the BOP webpage, as of April 23, 2020, there were 165 women housed at FSL. The layout of the space would make it impossible for these women to practice social distancing.
28. When I last visited the Camp, it was comprised of a single floor of cells, each of which held 2-3 women. I understand that the building has since been reconfigured and the women are now housed in large dormitory style rooms. Per the BOP webpage, as of April 23, 2020, there were 153 women housed at the Camp. Dormitory style housing makes it impossible for prisoners to practice social distancing.
29. Per BOP reports, as of April 23, 2020, there are 15 inmates with confirmed COVID-19 infection, 32 staff members, and 1 death. These numbers do not include the number of inmates and staff who previously tested positive and have since recovered. For example, on April 15, a news article said that BOP reported 44 inmates and 39 staff infected at FCI Danbury. It is unclear in which compound the COVID+ inmates resided on the Danbury BOP campus. Given that all spaces in both women’s facilities on the Danbury BOP campus are communal, there is high likelihood that if a single case entered the facility, many more will follow in what some have called a “tinderbox scenario.” The large number of cases in FCI Danbury to date reflects widespread disease in the surrounding community and is evidence that FCI Danbury is unable to mitigate or contain the spread of disease.
30. During my visit to FSL in January 2018, I had the opportunity to meet with many of the women to discuss their experiences of confinement without any correctional officers present. The women I met with had significant medical issues, including serious
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cardiovascular, neurologic, and psychiatric conditions. They described significant delays in receiving medical attention for issues both large and small. Any delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
31. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
32. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
33. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
34. Failure to keep accurate and sufficient medical records will make it more difficult for facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
35. Many women at FSL spoke only Spanish and reported significant challenges participating in groups and classes, which were at the time only offered in English. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
36. Facilities with a track record of neglecting individuals with acute pain and serious health needs under ordinary circumstances are more likely to be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
37. Similarly, facilities with a track record of failing to adequately manage single individuals in need of emergency care are more likely to be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
38. For individuals in facilities that have experienced these problems in the past, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
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V. Conclusion and Recommendations
39. Reducing the size of the population in jails and prisons is crucial to reducing the level of risk both for those within those facilities and for the community at large. As such, from a public health perspective, it is my recommendation that individuals who can safely and appropriately remain in the community not be placed in BOP facilities at this time. I also recommend that individuals who are already in these facilities should be evaluated for release.
40. This is more important still for individuals with preexisting conditions (e.g., heart disease and hypertension, chronic lung disease, chronic liver disease, suppressed immune system, morbid obesity, diabetes) or who are over the age of 65.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

I declare under penalty of perjury that the foregoing is true and correct.

April 2__4, 2020 Wilton, Connecticut

_______________________ Dr. Jaimie Meyer

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EXHIBIT B

Case 3:20-cv-00569 Document 1-2 Filed 04/27/20 Page 2 of 14 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
DECLARATION OF PROFESSOR JUDITH RESNIK REGARDING ENLARGEMENT AND THE USE OF PROVISIONAL REMEDIES FOR DETAINED
INDIVIDUALS
I have been asked to make this declaration to explain my understanding of the remedies, both provisional and permanent, that federal judges can provide to people who are incarcerated and facing the threat of COVID-19. Because I have practiced in the District of Connecticut for decades and represented prisoners before the federal court here, I have had personal experience with the use of enlargement in habeas corpus cases. Given that this provisional remedy is not regularly discussed in reported decisions or in academic analyses, I believe that my experiences and knowledge can be useful to the Court. This opinion is mine and is not that of the institutions with which I am affiliated. I declare that the following is a true and accurate account of my own work as a lawyer, of the pertinent legal principles as I understand them, and of how these precepts can apply in this unprecedented context.
My Background
1. I have worked on occasion as a lawyer, including in the clinical programs at Yale Law School and at U.S.C. I have appeared before the United States Supreme Court and in federal district and appellate courts. I have also been appointed by federal judges to assist in issues arising in large-scale litigation. Below, I provide a few aspects of my work particularly relevant to this declaration. I attach my resume as Exhibit A to this Declaration.
2. From 1977 until 1980, I was a supervising attorney at Yale Law School’s clinical program, which then provided legal services to federal prisoners housed at F.C.I. Danbury.
3. I am now the Arthur Liman Professor of Law at Yale Law School where I teach courses, including on federal and state

Case 3:20-cv-00569 Document 1-2 Filed 04/27/20 Page 3 of 14 2

courts; procedure; large-scale litigation; federalism; and incarceration.

4. I have taught law for decades. Much of my focus has been on the role and function of courts, and the relationship of governments to their populations. I regularly teach the class entitled Federal and State Courts in the Federal System. Readings for students include materials on habeas corpus and on civil rights litigation.

5. In 2018, I was awarded an Andrew Carnegie Fellowship to work on a book, tentatively entitled Impermissible Punishments, which explores the impact of the 1960s civil rights revolution on the kinds of punishments that governments can impose on people convicted of crimes. Central to this book is the role that access to courts played for people held in detention.

6. I am the Founding Director of the Arthur Liman Center for Public Interest Law. The Liman Center teaches classes yearly, convenes colloquia, does research projects, supports graduates of Yale Law School to work for one year in public interest organizations, and is an umbrella for undergraduate fellowships at eight institutions of higher education.

7. I write about the federal courts; adjudication and alternatives such as arbitration; habeas corpus and incarceration; class actions and multi-district litigation; the judicial role and courts’ remedies; gender and equality; and about transnational aspects of these issues. In recent years, I have spent a good deal of time doing research related to prisons. I have helped to develop a series of reports that provide information nation-wide on the use of solitary confinement.

8. In February of 2019, I testified before the U.S.

Commission on Civil Rights at its hearing on women in prison and

co-authored a statement related to the isolation of many facilities

for women, their needs for education and work training, and the

discipline to which they are subjected. See Statement submitted

for the record, Women in Prison: Seeking Justice Behind Bars,

before the U.S. Commission on Civil Rights, March 22, 2019. The

report, published a few months ago, reference this testimony. See

U.S. Commission on Civil Rights, Women in Prison: Seeking Justice

Behind

Bars

(February

2020),

available

at

https://www.usccr.gov/pubs/2020/02-26-Women-in-Prison.pdf.

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3
Remedies Available in the Federal Courts: Habeas Corpus, Civil Rights Litigation, and Enlargement
9. In light of my knowledge of the federal law of habeas corpus, state and federal court relations, procedure, and remedies, I have been asked by counsel for the petitioners/plaintiffs to address the range of responses available to judges presiding in cases that raise claims related to COVID19.
10. As I understand from public materials on the health risks of this disease, COVID-19 poses a deadly threat to the well-being and lives of people who contract this disease. To reduce the risk and spread of this disease, our governments have instructed us to stay distant from others and to take measures that are extraordinary departures from our daily lives and routines.
11. Applying these urgent medical directives to prisons poses challenges in every jurisdiction. Governing legal principles about prisoners’ access to courts were not framed to address COVID19’s reality: that being inside prisons that are densely populated can put large numbers of people (prisoners and staff) at risk of immediate serious illness and potential death.
12. These unprecedented risks from and harms of COVID-19 in prison raise a new legal question: whether COVID-19 has turned sentences which, when imposed, were (or may have been) constitutional into unconstitutional sentences during the pendency of this crisis.
13. When sentencing people to a term of years of incarceration, judges had no authority to impose putting a person at grave risk of serious illness and death as part of the punishment for the offense. Now, such grave risks and harms can arise from the fact of incarceration.
14. A recent Supreme Court case, Montgomery v. Louisiana, 136 S.Ct. 718 (2016), provides an analogous situation - a constitutional-when-sentenced but unconstitutional-now sentence. The Court determined that, in light of new understandings of the limits of brain development in juveniles, sentences of life without parole (LWOP) imposed on individuals who had committed crimes when under the age of eighteen were lawful when issued but became unconstitutional. As a consequence, parole boards or courts had to reconsider whether LWOP remained appropriate. COVID-19 raises a parallel question, as it requires courts to address whether sentences lawful at imposition can (at least temporarily) no longer

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be served in prisons because otherwise, the sentence would become an unconstitutional form of punishment. In normal times, using Montgomery v. Louisiana as a guide, federal judges could remit eligible individuals to state courts and parole boards. But in these abnormal times, the speed at which decisions are made is critical. Therefore, as I discuss below, provisional remedies (enabling enlargement and release for some individuals and dedensifying for others) are necessary.
15. The classic and longstanding remedy for relief from unconstitutional detention, conviction, and sentences is habeas corpus. The Constitution enshrined the remedy of habeas corpus, which has a substantial common law history and is codified in federal statutes. See generally Paul D. Halliday, Habeas Corpus (Harvard U. Press, 2012); Amanda L. Tyler, Habeas Corpus in Wartime (Oxford U. Press, 2017); Randy Hertz and James Liebman, Federal Habeas Corpus Practice and Procedure (2 volumes, 2019); Hart & Wechsler, The Federal Courts and the Federal System, Chapter X1, 1193-1164 (Richard H. Fallon, Jr, John F. Manning, Daniel J. Meltzer & David Shapiro, 7th ed., 2015). These citations are the tip of a vast and substantial literature that aims to understand the history and law of habeas corpus.
The Legal Thicket
16. As is familiar, in federal courts, federal petitioners file under 28 U.S.C. §2255 (post-conviction motions) and under §2241 (the general habeas statute), both of which are civil actions.
17. For example, when I worked at Yale Law School in its clinical program in the late 1970s, we filed lawsuits for federal prisoners predicated on 28 U.S.C. §2241 as well as (in appropriate situations) on 28 U.S.C. §1331 (general question jurisdiction) and 28 U.S.C. §1361 (mandamus), and in several instances, we filed cases as class actions. In the mid-1970s, the Supreme Court provided rules and forms for §2254 and §2255 filings. The Federal Rules of Civil Procedure supplement those rules.
18. Congress has recognized that federal judges are authorized under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” See 28 U.S.C. §2243. In addition to this statutory authority, federal judicial power is predicated on the constitutional protection of the writ and on the common law.

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19. Congress has channeled and circumscribed some of federal judicial authority through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and, relatedly, under the Prison Litigation Reform Act (PLRA) of 1996. Moreover, the Supreme Court has issued many decisions interpreting the prior habeas statutes, the 1996 revisions in AEDPA, and the intersection of habeas and civil rights claims brought under 42 U.S.C. §1983. The result is a dense arena of law and doctrine that can be daunting for litigants and jurists alike.
20. Some Supreme Court decisions, written to address claims by state prisoners, have delineated litigation focused on the fact or duration of confinement, for which release is the remedy and habeas is the preferred route, from challenges to conditions of confinement, for which the Court has required use of 42 U.S.C. §1983. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1978); Heck v. Humphrey, 512 U.S. 477 (1994). Yet that distinction is hard to apply, and many opinions have identified that the overlap, as exemplified by Mohammad v. Close, 540 U.S. 744 (2004), Wilkinson v. Dotson, 544 U.S. 74 (2005), and by other Supreme Court and lower court decisions.
21. COVID-19 poses a new and painful context in which to undertake that analysis. Some reported decisions addressing the constitutional right of prisoners that officials not be “deliberately indifferent to serious medical needs” consider those Eighth Amendment claims to be appropriate for §1983 because they relate to conditions. But this deadly disease turns ordinary conditions into potentially lethal threats of illness for which the remedy to consider is release of at least some prisoners because density puts people at medical risk.
22. Because COVID-19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement. In my view, COVID-19 claims, therefore, collapse the utility and purpose of drawing distinctions between what once could more coherently be distinguished.
23. Courts need also to consider how COVID-19 fits (or not) with provisions of AEDPA and the parameters of the PLRA. Again, new problems have emerged. For example, in some contexts for state and federal prisoners, a question of exhaustion of remedies arises. Often one issue is the ability of the executive branch to respond quickly. In the COVID context, day by day, the risk of illness increases for prisoners and staff, which endanger health care resources. Exhaustion would be “futile” if other branches of

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government are not prompt in response and if people become sick, risks skyrocket, and deaths occur.
24. “Futility” thus needs to be analyzed in terms not only of the capacity of institutions but in terms of the likelihood that the people seeking relief will be well enough to have the capacity to do so, and that the remedy provided will be effective given the alleged harm.
25. Other legal issues include when class actions are appropriate and the criteria of Rule 23 are met; the merits of arguments about unconstitutional sentences and conditions; and the range of remedies.
The Availability of Provisional Remedies
26. The reason to flag some of the many issues that litigation of both habeas petitions and civil rights cases entail is to underscore the importance of considering provisional remedies when cases are pending. In general, time is required for lawyers to brief and for judges to interpret and apply the law. But waiting days in a world of COVID infections can result in the loss of life.
27. While courts have not faced COVID before, they have faced urgent situations, which is why provisional legal remedies exist. Courts have two ways to preserve the status quo – which here means protecting to the extent possible the health of prisoners, staff, and providers of medical services. One route is the use of temporary restraining orders and preliminary injunctions. These remedies require no explanation because they are familiar procedures. See Fed. R. Civ. Pro. 65.
28. Another option is an aspect of federal judicial power that is less well known. District courts have authority when habeas petitions are pending to “enlarge” the custody of petitioners. “Enlargement” is a term that, as far as I am aware, is used only in the context of habeas. (More familiar terms for individuals permitted to leave detention are “release” and “bail,” and some decision that “enlarge” petitioners use those words rather than enlargement).
29. The distinction is that enlargement is not release. The person remains in custody - even as the place of custody is changed and thus “enlarged” from a particular prison to a hospital, halfway house, a person’s home, or other setting. Enlargement is a

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provisional remedy that modifies custody by expanding the site in which it takes place. In some ways, enlargement resembles a prison furlough.
30. Enlargement has special relevance when the PLRA has application. As I understand the PLRA’s rules on the “release” of prisoners, enlargement would not apply, as enlargement is not a release order. And, of course, interpreting the many directives of the PLRA in light of COVID entails more elaboration that my comments here.
31. The need to work through that statute and case law is another reason why the availability of provisional remedies is so important. Enlargement provides an opportunity for increasing the safety of prisoners, staff, and their communities while judges consider a myriad of complex legal questions.
32. I first encountered the provisional remedy of enlargement in the 1970s, when I represented a prisoner – Robert Drayton – who was confined at F.C.I. Danbury and who filed a habeas petition alleging that the U.S. Parole Commission had unconstitutionally rescinded his parole.
33. The Honorable T.F. Gilroy Daly, a federal judge sitting in the District of Connecticut, granted Mr. Drayton’s request for enlargement while the decision on the merits was pending. Mr. Drayton returned to his home in Philadelphia and came back to Connecticut for the merits hearing. Judge Daly thereafter ruled in his favor; that decision was upheld in part and reversed in part. See Drayton v. U.S. Parole Commission, 445 F. Supp. 305 (D. Conn. 1978), affirmed in part, Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
34. Judge Daly did not write a decision explaining the enlargement. Given that I knew that the use of enlargement was not always recorded in published decisions and that enlargement had special relevance here, I decided I should learn more about other courts’ discussion of this provisional remedy.
35. The provisional district court remedy of enlargement is not mentioned directly in in federal rules governing the lower federal courts. In contrast, at the appellate level, Federal Rule of Appellate Procedure (FRAP) 23 provides in part that:
While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of

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either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. While a decision ordering the release of a prisoner is under review, the prisoner must – unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise – be released on personal recognizance, with or without surety.
As that excerpt reflects, the Rule uses language familiar in the context of bail and provides that appellate courts may also determine that a petitioner be detained in “other appropriate custody.”
36. Federal courts at all level are authorized by Congress to decide habeas cases “as law and justice requires.” 28 U.S.C. §2243. The case law also references that, at the district court level, the authority to release a habeas petitioner pending a ruling on the merits stems from courts’ inherent powers. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). And, as I noted, in these reported decisions, the terms “bail” or “release” are sometimes used instead of or in addition to “enlargement.”
37. In the last weeks, the saliency of enlargement has prompted me to review more of the law surrounding it. To gather materials and opinions on enlargement, I asked two law students, Kelsey Stimson of Yale Law School and Ally Daniels of Stanford Law School, to help me research what judges have said about enlargement and what others have written. Below I detail some of the governing case law. The Hertz & Liebman Treatise on Habeas also has a section (§14.2) devoted to this issue.
38. Some of the decisions involve requests for release when habeas petitions were pending from state prisoners, and others from federal prisoners, or from people in immigration detention. Further, several appellate cases address the issue of whether a district court order on enlargement was appealable as of right or subject to mandamus.
39. My central point is that, amidst these various debates about appealability and the test for enlargement/release, most circuits have recognized that district courts have the authority to order release. See e.g., Woodcock v. Donnelly, 470 F.2d 93, 43 (1st Cir. 1972); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); Dotson v. Clark, 900

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9
F.2d 77, 79 (6th Cir. 1990); Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981): Baker v. Sard, 420 F.2d 1342, 1342-44 (D.C. Cir. 1969).
40. The Fourth and Eleventh Circuits appear, albeit less directly, to recognize enlargement authority. See Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990); United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002). A Ninth Circuit opinion from 1989 likewise appears to recognize the power of district courts to grant release pending a habeas decision where there are “special circumstances or a high probability of success.” See Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). Thereafter, another decision, In re Roe, described the Circuit as not having ruled on the issue in terms of state prisoners. See 257 F.3d 1077 (9th Cir. 2001).1
41. A discrete question is the standard for enlarging petitioners. To obtain an order for release pending the merits of habeas decision, the petitioner must demonstrate “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See e.g. Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). Courts have also discussed that release is appropriate when “necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226; see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). As that Third Circuit decision explained, release was “available ‘only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.’”
42. Some judges have interpreted the “substantial questions” prong to require the underlying claim to have a “high probability of success.” See Hall v. San Francisco Superior Court, No. C 095299 PJH, 2010 WL 890044, *1 (N.D. Cal. Mar. 8, 2010); In re Souels, 688 F. App'x 134, 135 (3d Cir. 2017). That test resembles standards for preliminary injunctive relief and for stays, which
1 Subsequent lower court cases debated whether district courts do possess such authority. See, e.g., Hall v. San Francisco Sup. Ct., 2010 WL 890044, at *2 (N.D. Cal. Mar. 8, 2010) (“Based on the overwhelming authority [of other circuit courts] in support, the court concludes for purposes of the instant motion that it has the authority to release Hall pending a decision on the merits.”); United States v. Carreira, 2016 U.S. Dist. LEXIS 31210, at *4, (D. Haw. Mar. 10, 2016) (“[T]his Court declines to address the merits of Petitioner’s bail requests in the absence of definitive guidance from the Ninth Circuit regarding the scope of this Court’s bail authority.”).

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10
include an assessment of the likelihood of success on the merits and of whether the balance of hardships tips in favor of altering the status quo. (And, of course, more can be said about the nuances of these bodies of law as well.)
43. A few cases focus on the health of a petitioner as central to the conclusion that “extraordinary circumstances” exist. For example, in Johnston v. Marsh, the petitioner, Alfred Ackerman, brought a habeas claim alleging that he was convicted in Pennsylvania through a trial that lacked “due process.” 227 F.2d 528 (3d Cir. 1955). Ackerman asked for release pending a decision on the merits of his habeas petition; he argued that he had advanced diabetes and was “rapidly progressing towards total blindness.” Id. at 529. The district court authorized Ackerman to be released to a private hospital. The prison warden (Frank Johnston) went to the Third Circuit invoking sought writs of prohibition and mandamus to order the district court (Judge Marsh) to change his ruling. Rejecting the petitions, the Third Circuit affirmed that district courts possessed the authority to order relocation while the habeas petition was pending. Johnson v. Marsh has been cited in more recent cases to illustrate that findings of extraordinary circumstances may “be limited to situations involving poor health or the impending completion of the prisoner’s sentence.” Landano, 970 F.2d at 1239.
44. The court in In re Souels addressed what showing of health problems constituted extraordinary circumstances. See 688 F. App’x at 135-36. Sean Souels, who was serving a 46-month federal prison sentence, petitioned for a writ of mandamus directing the court to rule on his writ of habeas corpus and sought release pending the decision. Id. at 134. The court denied Souels bail because “he [did] not describe his medical conditions in any detail or explain how he cannot manage his health issues while he is in prison.” Id.
45. Health is not the only extraordinary circumstance that has been the basis for enlargement. For example, in United States v. Josiah, William Josiah brought a writ of habeas corpus after the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (ACCA) and altered the method for determining whether prior convictions qualify as violent felonies under the ACCA. 2016 WL 1328101, at *2 (D. Haw. Apr. 5, 2016). Josiah, who was serving a federal prison sentence argued that his prior convictions did not qualify as violent felonies and that he should not be subject to the fifteen-year mandatory minimum. The district court concluded that because the issue of retroactivity was pending before the Supreme Court and Josiah would have served his full

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sentence if the Court held its prior ruling retroactive, release pending the higher court’s ruling was appropriate. Id. at *4-6.
46. In circumstances similar to Josiah, a district judge sitting in the Central District of Illinois issued three orders granting release, termed bail, to petitioners pending resolution of their habeas claims. See Zollicoffer v. United States, No. 1503337, 2017 WL 79636 (C.D. Ill. Jan. 9, 2017); United States v. Jordan, No. 04-20008, 2016 WL 6634852 (C.D. Ill. Nov. 9, 2016); Swanson v. United States, No. 15-03262, 2016 WL 5422048 (C.D. Ill. Sept. 28, 2016).
47. Another case involved enlargement in the context of the military. See Gengler v. U.S. through its Dep't of Def. & Navy, 2006 WL 3210020, at *6 (E.D. Cal. Nov. 3, 2006). As that court explained, a “district court has the inherent power to enlarge a petitioner on bond pending hearing and decision on his petition for writ of habeas corpus.” Id. at *5. The judge also noted that a “greater showing must be made by a petitioner seeking bail in a criminal conviction habeas ‘than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt.’” The court used the test of “exceptional circumstances and, at a minimum, substantial questions as to the merits.” Id. at 13. The court found exceptional circumstances” based on the fact that the petitioner had been admitted to business school, had been granted permission by his commanding officer to attend, and would be forced to drop out if his custody were not enlarged. The court also ruled that “substantial questions as to the merits” existed because of alleged government’s errors in drafting the petitioner’s service agreement. Id. at *6.
48. As of this writing, I have located three reported cases on COVID. (Given the pace of litigation, I assume that more may have been filed and some decided.)
49. On April 7, the Honorable Jesse Furman, sitting in the Southern District of New York, granted on consent a motion styled “for bail” (the term used in the Second Circuit Mapp decision). Judge Furman ordered immediate release under specified conditions, pending the adjudication of the Section 2255 Motion. See United States v. Nkanga, No. 18-CR-00730 (S.D.N.Y., Apr. 7, 2020).
50. A second case involves a class action filed by Craig Wilson and others. See Wilson v. Williams, No. 4:20-cv-00794-JG, 2020 WL 1940882, at *1 (N.D. Ohio Apr. 22, 2020). Seeking to represent a class of all current and future prisoners of the Elkton

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Federal Correctional Institution (FCI) and a subclass of the medically vulnerable population, they sought relief because their continued incarceration subjected all FCI prisoners to substantial risk of harm in violation of the Eighth Amendment.

51. On April 22, 2020, the federal district court granted in

part the request by the Wilson class for emergency relief, which

included enlargement of a subclass of prisoners challenging the

manner in which the sentence was served and hence cognizable as a

habeas petition. See Wilson v. Williams, No. 4:20-cv-00794-JG,

2020

WL

1940882

(N.D.

Ohio

Apr.

22,

2020)

52. The third case has less relevance as it was brought by an unrepresented litigant, Richard Peterson, who had originally sought habeas corpus relief on a claim about education credits and then filed an emergency request for release from a California state prison due to COVID-19. No. 2:19-CV-01480, 2020 WL 1640008, at *1 (E.D. Cal. Apr. 2, 2020). The district court noted that a class action raising COVID claims was pending in another federal court in California and that, while the court had the authority to release a person while a habeas petition was pending, Mr. Peterson had not provided evidence sufficient to meet the test to do so.

Conclusion

53. In sum, COVID-19 is an unprecedented event that, in my view, raises the legal question of whether, in light of the government mandates for social distancing, sentences (that had been lawful when they were imposed) cannot lawfully be served when the setting puts an individual in a position of untenable risk. Thus, habeas corpus – which addresses the constitutionality of sentences and offers the possibility of release and enlargement – properly provides a jurisdictional basis and remedies for this situation.

54. I need also to note that, in recent years, the Supreme Court has raised questions in many contexts about the remedial powers of federal judges. Whether the topic is nationwide injunctions or commercial contracts, debates have occurred within the Court about the authority of federal judges.

55. Those cases do not address the extraordinary and painful moment in which we are all living. Ordinary life has been up-ended in an effort to keep as many people as possible alive and not debilitated by serious illness. Moreover, Supreme Court opinions have not focused on the relevance of remedial debates to the situation were confinement can put entire staffs and detained

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populations at mortal risk. Therefore, judges have the obligation and the authority to interpret statutes and the Constitution to preserve the lives of people living in and working in prisons. It is my hope that this account of earlier uses of enlargement in this District and the dense account of case law and doctrine will be of service to this Court and to the parties in understanding the meaning and import of American law.
Dated: April 23, 2020
__________________________ Judith Resnik

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EXHIBIT C

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Declaration of Dianthe Martinez-Brooks
1. I am currently in custody at Danbury FCI in the minimum security women’s camp (the “Camp.” My Bureau of Prisons (“BOP”) Register Number is 71331-050.
2. I am 50 years old. I have asthma, hypertension, arthritis, and systemic lupus erythematosus (SLE), an autoimmune disease. I take Atenolol for hypertension. For my asthma, I have a Proventil emergency inhaler and use an Asmanex Twisthaler (mometasone furoate inhalation powder, 220mg). Since my incarceration began, I have been prescribed steroids once for the joint and muscle inflammation associated with my lupus.
3. I am serving a sentence of 48 months for wire fraud. My release date is 6/25/2022.
4. At the Camp, there are rooms and dorms containing bunk beds. There are 9 rooms, each that can hold 4 to 5 women. There are four dorms: Dorms A, B, C, and D.
5. Before the lockdown on April 15, there were approximately 43 women in the 9 small rooms. On April 15, these women from the rooms were moved to the dorms.
6. I am currently housed in Dorm A. Dorm A has 48 women in it right now, who share 4 showers and 3 toilets. Dorm B has 48 women sharing 5 toilets and 6 showers. In Dorm C, 46 women share 5 toilets and 5 showers. In Dorm D, 7 women are currently sharing 3 showers and 3 toilets.
7. In the dorms, women sleep on bunk beds, with 2 women per bunk bed. The bunk beds are in cubicles. In many of the cubicles, the beds are positioned so they reach from one end of the cubicle to the other—so the only separation between the bed in one cubicle and the bed in the next is the wall of the cubicle, which does not reach to the ceiling. Beds positioned parallel to the wall of the cubicle are also not six feet away from beds in the next cubicle.
8. All cleaning in the Camp is done by prisoners, and cleaning has been sporadic. Many women have quit their jobs. Women are responsible for cleaning their own cubicles.
9. There is a common area in the Camp containing phones, computers, video chat machines, sinks for dishwashing, and hot water taps. There are also common recreation rooms containing tables, chairs, cards, and games. Women also share ice machines where they scoop out ice.
10. There are open bathrooms that can be used by all on the upper level and in the old visiting room.
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11. We are currently on a lockdown at the Camp. Each dorm has 45 minutes of recreation in the morning and 1 hour of recreation later in the day. These are the only times of day that we can access the common areas in the Camp with the phones, recreation rooms, etc.
12. I know of two women who self-surrendered to the Camp at the end of March. One came straight into the Camp and the other was quarantined first.
13. Some women have been told that they are on a list for home confinement and would be quarantined before released. On April 6, 23 women were put in Dorm C for quarantine. On April 7, 5 more women were put in Dorm C. On April 10, they moved some women from Dorm C into Dorm D and then added an additional 28 women to both Dorm C and Dorm D. On April 15, they took all the women who were housed in the rooms and added them to Dorms A, B, and C. At that time, the Camp went into lockdown.
14. Of the approximately 56 women placed in quarantine in the first 2 weeks of April, I am aware of only 4 that have left from Dorm D and one that has left from Dorm C. One of these women was granted compassionate release by the court. I understand that 2 of the other releases were COVID-19 related. The others were at or near the end of their sentences.
15. Even though there is a lockdown, women from different dorms are continuing to comingle. During recreation, women are visiting friends who live in different dorms.
16. Not all staff are regularly wearing masks and gloves.
17. There is no hand sanitizer for use by prisoners or staff.
18. Staff are serving meals. Prisoners are used to assist in food preparation, cooking, and cleaning the kitchen.
19. Each day, staff move between all four dorms in the Camp for count, food delivery, and commissary. We have staff in the Camp that have been at the other two facilities at FCI Danbury. Medical staff see prisoners at all three facilities.
20. Three correctional officers who have been at the Camp have said that they had COVID19, including one who works in food service.
21. There is no actual medical clinic in the Camp. Instead, there are a series of offices: two are used by medical staff, one by dental staff, and one by psychology. RNs come for pill line in the morning and in the late afternoon. If you are sick, you must go to morning pill line and fill out a sick call request. You then must wait to be called in and it can take days. If there is an emergency, a correctional officer must call for a medical professional to come to the Camp because there is not a medical professional at the Camp 24 hours a day.
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22. I have a severe peanut allergy. I had a reaction on April 15 when peanut butter was served for dinner and I had to leave the dorm. To date, peanut butter has been served in the dorm 7 times. Medical staff have told me that I should leave for at least an hour to allow the dorm to air out. I have expressed my concerns about this to staff repeatedly.
23. Since I have been incarcerated at FCI Danbury, I have had multiple problems accessing basic medical care. In October 2019, I had difficulty being seen for an upper respiratory infection and my daughter had to contact the facility. It took 8 days for me to be seen and 11 days to get the medication that I needed. In February 2020, I was left without my asthma medication for more than 4 weeks when my prescription ran out. My daughter again needed to contact the facility. My blood pressure medicine ran out on April 2 and my prescription did not reach me until April 10.
24. Since my incarceration, I have only been prescribed steroids once for the joint and muscle inflammation associated with my lupus and have not been brought to see a rheumatologist. I also suffer from migraines and TMJ and have not received treatment for those conditions in BOP custody.
25. On March 26, 2020, I asked the warden for compassionate release.
26. I was given paperwork to sign on April 19 relating to home confinement and/or a halfway house. Then a new memo came out on 4/21/20 saying that if you haven’t completed 50% of your sentence you are ineligible. Another memo came out on 4/23/20 saying you must have completed 25% of your time and have 18 months or less remaining on your sentence.
27. There has been no access to the law library for women working on current legal cases and no copy cards available to purchase.
28. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
______/s/_______________ Dianthe Martinez-Brooks
April 26, 2020
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EXHIBIT D

Case 3:20-cv-00569 Document 1-4 Filed 04/27/20 Page 2 of 12
Declaration of Kenneth Cassidy I, Kenneth Cassidy, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register Number is 48169-054. I arrived at FCI Danbury on January 21, 2020, my 54th birthday. 2. I am assigned to D Unit. D Unit is a dorm unit, can accommodate up to 80 prisoners, and currently houses approximately 66 prisoners. 3. I am serving a sentence of 5 years arising from a conviction for conspiracy to commit wire fraud and willful failure to file an income tax return. I have no violent offenses on my record. The BOP calculates my release date to be March 31, 2021. My projected home confinement release date is October 1, 2020. At sentencing, the Court recommended to the BOP that I serve the final year of my sentence at a halfway house. 4. While in the BOP, I have completed the 40-hour non-residential drug treatment program and taken courses on diabetes and personal finance. I am on waiting lists to take courses to become an OSHA-certified laborer and legal assistant. I have never had an incident report while in BOP. 5. I have had three heart attacks. I have had pneumonia in my right lung more than 20 times, and have been told that I have the lungs of a 70-year-old. I suffer from many serious chronic medical conditions including asthma, coronary artery disease, hypertension, Prinzmetal angina, cervical disc disease, lumbar disc disease, gastroesophageal reflux disease (GERD), Barrett’s esophagus, and diverticulitis resulting in a hernia in the colon wall. I have a soft tissue mass on my upper cervical spine resulting in partial paralysis that requires immediate surgery

Case 3:20-cv-00569 Document 1-4 Filed 04/27/20 Page 3 of 12
upon my release. I cannot digest rice, beans or greens. I am severely allergic to ragweed, shellfish, trees and chlorophyll (including in green vegetables). I am morbidly obese.
6. My current medications include an albuterol inhaler, Lisinprol, Metropolol, Atorvastatin, Nitroglycerin, Docusate and Lasix, as well as breathing treatments and oxygen treatments in the medical department as needed.
7. Our pharmacy is currently closed because the pharmacist is out. Our medication is being shipped in from FCC Allenwood with several days’ delay. As a result, I did not receive the correct dose of my medication for two weeks in April.
8. The COVID-19 virus has ravaged FCI Danbury. Approximately 80% of prisoners in my unit show flu-like symptoms including fever, coughing, body aches, shortness of breath, chest pressure, and headaches.
9. The prison staff’s response has been disrespectful, degrading, dehumanizing and threatening. Social worker Adamson has said to me, “It’s not that big. Don’t worry about it. We got it under control,” “This is nothing more than an overblown flu. You guys are all becoming hypochondriacs. You’re paranoid after watching too much television. Stop watching the TV. Stop watching the news because it’s only going to make you guys paranoid over nothing,” “Stop being a hypochondriac, it’s not going to get you out of prison,” and “Lay down, take a Tylenol, there’s nothing we can do.”
10. Warden Easter and Associate Warden Comstock told us, in effect, we know it’s difficult for you guys to social distance, so just try your best to do what you can. That is the only instruction we have received on social distancing.
11. For the last couple of weeks, an associate warden has come through the unit daily to take prisoners’ temperatures. He approaches prisoners one at a time and aims a temperature
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wand at our foreheads. He stands so close to you that you could kiss him. When a prisoner’s temperature is taken, and there is no fever, he states the number loudly so that others are at ease. When a prisoner has a fever, he states the number softly so that only the prisoner can hear, if he states it at all.
12. Just because you have a fever doesn’t mean you are taken off the unit. In the beginning, there was such chaos that the staff couldn’t handle the influx and even if you had a fever, you stayed in the unit. Until recently, a prisoner with a low-grade fever of 100 or 101 degrees would be given Tylenol for 2 or 3 days to see if the Tylenol can break the fever.
13. For the last couple weeks, prisoners with a fever have been taken to medical. Sometimes, however, a prisoner has a fever and the associate warden attributes the temperature reading to equipment error. When the temperature wand comes up with a low-grade fever, the associate warden will “reset” it and pretend to take another reading. He will announce another number, but he won’t even aim the wand at the prisoner’s forehead. The associate warden does not show the prisoners the LCD screen on the wand that displays the temperature, so we have to go by whatever he tells us.
14. If the associate warden acknowledges that a prisoner has a temperature, then he will escort the prisoner to medical. Prisoners who have gone to medical have told me what happens there. At medical, the prisoner is given two or three Tylenol and told that the wand is not working properly and that they do not have a fever, and then sent right back to the unit. One of the prisoners who went to medical and came right back has been vomiting blood all week. When his temperature was taken in the unit, he was told that he has a 101.2 degree fever. When he got to medical, he was given Tylenol, told that his temperature is 98.7 degrees, and sent
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back to the unit. They never took his temperature in medical. When he got back to the unit and told us all this, his forehead was hot.
15. Although most of us are sick, only three prisoners with a fever have been taken out of the unit and quarantined. These prisoners were taken to A Unit, a cell-based isolation unit. Two of these three prisoners returned to our unit about 8-10 days after testing positive for COVID-19. One was taken out on March 27 and the other was taken out on March 29. I understand that when they were in the isolation unit, they were given two Tylenol per day. Otherwise, they did not receive any medical treatment. Shortly after they both returned to my unit on April 6, the unit became deathly sick. Prisoners were up in the middle of the night coughing and gasping for air. It was at its worst from approximately April 7 to April 12. The third prisoner remains in isolation.
16. The prison recently opened another isolation unit, K Unit, which was condemned last winter for asbestos. Even though the BOP was supposed to renovate this unit and remove the asbestos, and has not done so, the prison is justifying its use as a temporary.
17. The COVID-19 virus has decimated the medical department. I was told by the assistant health administrator, Mr. Dakote, and a physician assistant, Mr. Quest, that our regular physicians have been out for weeks. Sick call requests have been going unanswered for weeks. In the last month, I have made three requests regarding an abnormal tumor near my rectum, and was told “that’s not an emergency” even though there is dark black blood in my bowels on occasion. The tumor has grown in the past month, obstructing my bowels, and medical has still not evaluated me. If you don’t have a fever, you have no access to a physician.
18. All sick call triage for our unit is being handled by a social worker who has no formal medical training. The social worker, Ms. Adamson, has told us “you are all fucking
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children with nothing more than a flu so stop your shit you’re not going home early.” She has said, “if you did the crime stop crying and do the time.” She has said, “I don’t need medical training to tell you you’re not sick so go lay the fuck down.” Prisoners who present for sick call triage who do not have a fever are denied access to any further medical treatment. Sometimes Ms. Adamson brings along the dental hygienist from the facility to help with the triage.
19. Ms. Adamson is also the staff member handling all CARES Act and compassionate release requests.
20. Before the pandemic, we ate in the mess hall with several other units. From approximately March 29 until April 5, we ate in the mess hall with another unit. From approximately April 6 until April 10, our unit ate in the mess hall by itself. Since then, we have been eating all meals in our unit.
21. Food service is closed. The COs are preparing our food. Food is delivered on a bread rack and is placed in your unit directly on your chair or on your bed. We only have laundry once a week at the most, and only if there is hot water and a staff member available. As a result, we cannot clean the stains on our bedding and clothes from when staff drop the trays on our chairs and beds.
22. Our meals are smaller. The portions were cut in half and we are not meeting the nutritional guidance of 2,000 calories per day. Breakfast will be one sour milk with one small piece of half-cooked cake batter. Lunch will be some type of hot food with a green vegetable or half-cooked rice as filler. Lunch the other day was four ounces of some type of cream salad with green peas. For dinner we are given a hamburger bun and a piece of meat, or four ounces of tuna with one piece of bread.
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23. All special medical diets are suspended indefinitely. I was prescribed a special medical diet by Dr. Greene and Dr. Febregas-Schindler on January 21, which was updated and modified by Dr. Febregas-Schindler on March 11. I am on a special medical diet of no green vegetables or plants due to my allergy to chlorophyll, and no rice and beans due to my diverticulosis. Despite this I have been given food with greens, rice and beans. I informed Ms. Adamson about my special medical diet not being met, and she responded, “Mr. Cassidy, I have other more important things to address with this virus being widespread than worry about what you can or cannot eat.”
24. My chronic medical conditions have deteriorated as a result of not being given my special medical diet.
25. The prison closed and locked the law library indefinitely, and has suspended the administrative remedy process indefinitely. The staff has stated that they are short-handed to review, investigate and respond to every grievance under the state of emergency the facility is operating in. This resulted in me being unable to access administrative remedy and compassionate release procedures.
26. Legal mail is being delayed and at times not picked up due to staff shortages. According to the local post office this has been an ongoing issue with several bins being left behind by prison staff. I know this because we have a prisoner in my unit who gets mail from England, and he hasn’t been getting his magazines for the last month and a half. His family called the local postmaster in Danbury, and the postmaster informed his family that this has been an ongoing problem with Danbury for 37 years but that it has gotten worse in the last month and a half. The postmaster informed his family that prison staff leave behind a couple of bins, say
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they’re going to come back, and never come back, so they’re always a couple days behind on the bins.
27. Legal calls are being denied for open and pending cases that require access to attorneys. I filed a written request to call my attorney and was told that a compassionate release motion is not a legal matter that is recognized. The case manager informed me that in her view the matter did not meet the criteria she was told by the unit manger to be considered a legal matter. Legal requests from attorneys are going unanswered because, per the staff, they “don't have time to handle these nonsense calls with all they are dealing with all the futile compassionate release requests.”
28. Until approximately March 29, our unit took rec with the rest of the prison, and we had access to both an indoor rec area and the outside rec yard. After around April 6, we were no longer allowed to use the indoor rec area. Instead, we used the outside rec yard with two other units, E Unit and F Unit. That lasted for about a week. For the last two weeks, our unit has gone to the outside rec yard by ourselves. When we go out to the rec yard, prisoners move out at the same time, standing next to each other, through the same 4’ wide door. During rec, prisoners stand right next to each other. There is no social distancing.
29. We are experiencing serious staff shortages and they keep getting worse and worse. There are way fewer COs than normal. 95% of the time, there is no officer in the unit. Sometimes we only see staff on the unit during count. You see the same guys working 80-100 hour weeks. I estimate that there are only about 40 COs on the entire compound. The COs are being “augmented,” meaning that a random staff member from medical, education, etc. has to cover units when COs are short-handed.
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30. If there is a medical emergency, and we cannot find a CO, the prisoners respond and help the prisoner. When prisoners collapse, it is the other prisoners who carry the prisoner to his bed. In order to get a CO, we have to yell out the window hoping that somebody hears us. I have witnessed at least three prisoner medical emergencies that were addressed only by other prisoners.
31. Social distancing is impossible in here. All 66 prisoners in my unit sleep in the same room in bunk beds. When I am sleeping, I am within one foot of the prisoner sleeping above me, and only about three or four feet away from the four prisoners in the two bunks on either side of me. There are no barriers between the beds.
32. In my unit there are five toilets, one urinal, three showers, and six sinks, including five cold-water wash sinks and one hot-water slop sink for washing eating utensils. The slop sink is right next to the other sinks. The sinks are about four inches apart. Sometimes two people have to share the same sink. The showers are two feet across the hall from the toilets. The tiles in the showers are corroded and filthy with mold. There are holes in the rotted woods in the ceiling above the showers, exposing rusted pipes, and when the prisoners above us in Unit C use their showers, water leaks down on us.
33. There is one liquid soap dispenser that was just put up last week. When we run out of liquid soap, we have to wait a day or two for it to get refilled. There are no paper towels or hand towels. We use toilet paper to dry our hands. There is no communal bar soap in the bathroom. You have to buy your own bar of soap from commissary. Indigent prisoners do whatever they have to do to get themselves a bar of soap. The prison does not give out shampoo, toothpaste, or mouthwash to indigent prisoners, either. We are also not provided with any cleaning supplies.
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34. There are two television rooms in the unit. Each room is about 10’ by 12’ with two televisions. The rooms can hold about 20 people and there are typically about 15-20 people in each of them. There is no ventilation in the television rooms.
35. There is a small telephone room, approximately 3’ by 8’, containing two telephones. The telephones are about eight inches apart. Both telephones are almost always in use. When two prisoners are using the telephones, they have to stand within two feet of each other. Typically, there are two prisoners on the phones, and the rest wait in a line in the hallway, standing right next to each other, close enough to touch each other. Since they started giving us free calls two weeks ago, there is always a line to use the telephones. The telephones are not cleaned between use.
36. There is also a small computer room, approximately 8’ by 10’, containing three computers, an eating table, and an ice dispenser. The amount of mold that is built up in the ice dispenser is incredible. The computers are in constant use. There are no barriers between the computers. At any given time, there will be three people in the room using the computers, three people standing behind them in the room waiting to use the computers, and several more people lining up shoulder-to-shoulder outside the room, right next to each other. The computers are not cleaned between use.
37. The commissary is open, but they are out of 50% of the items and a lot of the items are past their due date. They bring the commissary into a hallway in a laundry bin, and then the entire unit stands in the hallway and we wait for our names to be called. The hallway is narrow and no more than 20 feet long. We stand right on top of each other. If you miss your name then you have to wait until the end of commissary, so everyone comes out into the hallway at the same time.
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38. Staff give out medication twice a day. They shout “medication” and stand outside the door. Prisoners form a pill line, standing right next to each other. If you don’t hear “medication” you don’t get your medication for the day, so everyone comes up at the same time and crowds each other.
39. On April 9, staff gave the prisoners in my unit one mask each. A week later, they gave us a second mask. We haven’t received a mask in the last week. These masks are thin, papery disposable hospital masks that you cannot clean. They fall apart if you wet them. There is one prisoner with chronic obstructive pulmonary disease (COPD) and a beard who does not wear a mask. He is not being made to wear a mask.
40. Staff have not provided us with gloves. Staff do not wear gloves regularly. 41. Staff wear masks in our unit. But we see them take them off when they leave the unit and put them back on when they come back into the unit. Staff will go into the A Unit or K Unit, the two units with people who are positive with the virus, and come back into our unit without changing their gloves, or they’ll take off their gloves outside the unit but won’t wash their hands and won’t change their masks. The entrances to A Unit and K unit are both on the first floor, so my whole unit can see staff going in and out of those units. 42. On March 13, I submitted a request to the Warden through Unit Manager Moore for compassionate release. Around March 20, I learned that that she had tested positive for COVID-19. She is still not back in the facility. On April 1, I asked for an administrative remedy and was told that the administrative remedy process was suspended. On April 24, I received a denial of my compassionate release request from the warden. 43. I have a secure and stable home environment that I can go to immediately if I am released. I would be confined to my family residence of the last 16 years in Brooklyn, New
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Case 3:20-cv-00569 Document 1-4 Filed 04/27/20 Page 12 of 12 York with my brother, Donald Cassidy. I would stay at home and would not be out in the community. My brother Michael Cassidy and sister Dorothy Peters both will assist with any financials. I also have employment secured with Quick Call Medical Answering Service.
I have reviewed the information contained in this declaration with counsel by telephone and correspondence. I declare under the pains and penalties of perjury that the contents are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/s/ Kenneth Cassidy (by consent) Kenneth Cassidy April 26, 2020
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EXHIBIT E

Case 3:20-cv-00569 Document 1-5 Filed 04/27/20 Page 2 of 4
Declaration of Christina Korbe
1. I am currently in custody at Danbury FCI in the low security satellite prison (“FSL”). My Bureau of Prisons (“BOP”) Register Number is 30233-068.
2. I have been incarcerated in the BOP for almost 12 years. My release date is set for May 18, 2022.
3. I am 51 years old. I have been diagnosed with degenerative disc disease and posttraumatic stress disorder.
4. In early April, I began experiencing symptoms consistent with COVID-19. My symptoms included a severe headache, body aches, fever, shortness of breath, and a terrible cough. I also lost my appetite and my sense of smell. The cough was the worst cough I have ever had. At one point, I coughed so hard that I was afraid I had fractured a rib.
5. I spoke to the medical department multiple times about my symptoms. When I coughed so hard that I feared I had fractured a rib, I submitted a request for an x-ray. In response, I was called to medical, but I was not given an x-ray. Medical told me that my vitals were good and that I was “healthy,” and that I probably just pulled a muscle rather than fractured a rib. I was given no treatment. I bought Tylenol from the commissary for my pain.
6. My symptoms lasted for approximately three weeks. Upon hearing how hard I was coughing, one of the psychologists commented that I should be tested because I could be infecting other people. I responded, “Could you please make that happen?”
7. I was never offered a test for COVID-19.
8. I was also never quarantined in response to my symptoms. Instead, I was kept in general population.
9. At the FSL, all of us live in one dormitory-style room, which is like a big “warehouse,” with about 160 to 170 inmates total. The dormitory is divided up into cubicles with two bunkbeds in each. The dormitory also contains our common area with televisions, hair care, laundry, phones, and computers, as well as our bathrooms and showers.
10. There are currently three people, including me, living in my cubicle. Many of the cubicles have four people. My cubicle is approximately 10 feet by 10 feet. Within the cubicle, the two bunkbeds are approximately 6 feet apart. Most of the cubicles are separated by a partition about an inch thick; however, some of the partitions do not reach
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all the way up to the top bunk, so in some cases, two people on top bunks in separate cubicles are sleeping right next to one another.
11. In the common area, there are 12 phones, but not all of them are working. There are 6 computers, but only 4 of them are working. These are shared among the 160 to 170 women who live here. The phones and computers are not being cleaned in between each use; rather, they are being cleaned at most three times per day, and sometimes less frequently.
12. There are 24 showers for all of us, but not all of them are working. The showers are cleaned once per day.
13. FSL has canceled all classes and programming, as well as indoor recreation, and we are being called to meals in waves. However, this has not made much of a difference in our daily contact with one another, because we are still living side by side in the crowded dormitories, and standing side by side in line for meals. We share countless items that we all touch many times per day, including, for example, the phones, computers, laundry, ice machine, door handles, and a hot water spigot that we use to make coffee and food.
14. Staff members here have been taking the inmates’ temperature every day. They go down our rows of cubicles to do this, but on quite a few occasions, I have noticed that everyone in the same row is told that they have the exact same temperature. Sometimes, I and other women have not gotten out of bed to have our temperature taken, and no one seems to notice or care.
15. Before April 24, 2020, I was aware of only four women in the FSL who had been tested for COVID-19, at least two of whom tested positive. But many more people were sick. I have personally observed many other prisoners with symptoms similar to mine. Many staff members have been absent. Although a few women were placed into quarantine, the majority of women with symptoms were not.
16. On April 24, 2020, a woman in the FSL became extremely sick. She was vomiting and struggling for air. Other inmates were around her, trying to help her, without wearing any gloves or masks. She was sick for hours, and throughout the night. We did not understand why staff did not take her to the hospital. In response to concern among the inmates, a correctional officer (a lieutenant) came into the dormitory and announced that anyone who used the phone to contact people on the outside about this incident would get a disciplinary violation. He said that he would be listening to our phone calls, and that we needed to “stay in our lane,” because we “are not doctors.” The woman who was sick was eventually taken to the hospital on April 25.
17. On April 25, many of the women who had been in contact with the woman who was taken to the hospital were tested for COVID-19. At least ten of them have tested positive,
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Case 3:20-cv-00569 Document 1-5 Filed 04/27/20 Page 4 of 4 and all of them have been quarantined. That night, the women who were being placed in quarantine were allowed to come into the dormitory to get their personal belongings and take showers. 18. As of April 26, 2020, I still have a cough and a headache. I am terrified for my health and safety. 19. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/s/ Christina Korbe April 26, 2020
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EXHIBIT F

Case 3:20-cv-00569 Document 1-6 Filed 04/27/20 Page 2 of 4
Declaration of Marius (Marie) Mason
1. I am currently in custody at Danbury FCI in the low security satellite prison (“FSL”). My Bureau of Prisons (“BOP”) Register Number is 04672-061.
2. I am 58 years old.
3. I am serving a sentence of 21 years and 10 months for conspiracy and arson. My release date is set for May 4, 2027.
4. On Tuesday I submitted a request to the Warden for compassionate release. I also asked to be considered for home confinement. I was approached by a staff member and informed that if I persisted in my request for compassionate release I might be moved to a medical facility. This would seem to me to confirm that I am in fact a candidate for compassionate release.
5. I have a history of breast and uterine cancer, as well as an enlarged heart, hypertension, and borderline diabetes.
6. At FSL it is not possible for me to maintain distance from other prisoners. I am housed in a large dormitory style room with approximately 168 other women.
7. The dormitory in which I am housed is divided into cubicles. Each cubicle holds two bunk beds, with up to four prisoners per cubicle. Each bunk bed is about two to four feet from the bed in the same cubicle. Each bed is about two to four inches from the bunk bed on the other side of the cubicle wall. The cubicle wall does not reach the top of the bunk beds, so a prisoner on the top bunk is right next to the prisoner on the top bunk on the other side of the cubicle wall.
8. All of the prisoners at FSL must share 6 or 7 working phones and 4 working computers. They are not cleaned between uses. The phones and computers are located close together in a common area.
9. Prisoners in my housing unit eat meals together in the unit. About 10-20 people are seated at each table. Five tables are filled at a time for meals.
10. All of the prisoners in the FSL use three bathrooms, which each include 5 toilets, 5 sinks, and 4 showers.
11. There are frequently issues with the water in the FSL, and water will be shut off for a few hours or more than a day at a time. In early April, the water was shut off for about seventeen hours. During this time no one was able to wash their hands or flush the toilet.

Case 3:20-cv-00569 Document 1-6 Filed 04/27/20 Page 3 of 4
12. Prisoners are not given hand sanitizer.
13. Prisoners were given paper masks a few weeks ago. Before then we were not given masks. In mid-April, we were given fabric masks.
14. Staff began wearing masks and gloves around mid-April. Before that time they weren’t wearing protective equipment.
15. Some staff have been out sick. More than one correctional officer tested positive for COVID-19, was out of work for a week, and then came back to work. One of our cooks is still out. Officers have returned to work after being unable to get their FMLA papers signed, but remain symptomatic. One officer stated that they still feel ill and do not want to be at work, but were told to return.
16. On March 30, 2020, inmates in FSL found out about the first COVID-19 case in our facility because it was reported on the news. A women from our facility was taken to the hospital and tested positive.
17. In total, I am aware of three people from FSL who have tested positive for COVID-19. One of those individuals couldn’t breathe and passed out. One had asthma. One had a persistent fever that wouldn’t go down. They were all taken to the hospital, where they were tested and found to be positive.
18. Those inmates that tested positive for COVID-19 have returned to the facility. One was away from the unit for about two weeks, and others were out for only about 7 days.
19. Inmates who are coughing, congested, or short of breath are not being tested for COVID19. They are not being separated from other inmates. I am not aware of any prisoner in the FSL being tested for COVID-19 except those who were tested at the hospital.
20. Staff are checking temperatures but inmates who have had high temperatures have not being separated from the rest of the population. Recently, however, nobody has had a normal temperature, because they take our temperatures with a remote scanner, a plastic wand with a digital readout. It does not touch on our body and people’s temperatures read artificially low: as low as 96, but often around 97.
21. Previously, they used an oral mercury thermometer. When a person’s temperature was elevated, staff would retake the temperature several times. A number of people had highly elevated temperatures, ranging from 103 and above. Staff told those individuals to drink cold water and then immediately retook their temperatures, at which point the temperature would appear to have dropped, although it was still above normal. Nothing was done after that as a result of the temperatures. Our temperatures were not and are not being recorded.

Case 3:20-cv-00569 Document 1-6 Filed 04/27/20 Page 4 of 4
22. While we are supposed to report symptoms, we are all aware that if we complain of symptoms we are unlikely to get effective treatment, and that we may be isolated away from our friends and our belongings, in cells that do not have ready bathroom access. Neither prisoners nor staff have any clear guidance on what to do to protect ourselves or what should be done if we are ill.
23. I have reviewed the information contained in this declaration by telephone with my lawyer, Moira Meltzer-Cohen. I declare under the penalty of perjury that the contents are true and correct to the best of my knowledge. I authorize my attorney to sign this declaration on my behalf.
_/S/_____________________________ Marius Mason April 23, 2020 I, Moira Meltzer-Cohen, certify that I have reviewed this declaration with Mr. Mason by telephone on April 23, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
Moira Meltzer-Cohen

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EXHIBIT G

Case 3:20-cv-00569 Document 1-7 Filed 04/27/20 Page 2 of 3
Declaration of Kimberly Hoisington
1. I am currently in custody at Danbury FCI in the low security satellite prison (“FSL”). My Bureau of Prisons (“BOP”) Register Number is 11764-082.
2. I am serving a sentence of 85 months for conspiracy to distribute cocaine. My release date is set for November 1, 2021.
3. I am 61 years old. I have chronic asthma, which requires the use of two prescribed inhalers.
4. At FSL I am housed in a dormitory style room at with about 150 other prisoners. The room is divided into cubicles with two bunkbeds each. I am in a cubicle with three other prisoners. Our beds are at most four and a half feet apart, and the top bunks are closer together, at most two feet, to the top bunks on the other side of the cubicle wall.
5. On March 27th I was hospitalized with COVID-19. I had been feeling sick for a couple weeks before I went to the hospital. I had put in a request to see medical, and had been given two different “idles” to miss programs because I was sick.
6. On March 26th I reported to staff that I wasn’t feeling well, and asked to be excused from participating in programs that day. I went to the medical clinic, but after waiting there for 45 minutes without being seen, I returned to my bunk. A few hours later, I reported to staff on duty that I was feeling worse. I was told to lie back down.
7. By early in the morning of March 27th, around 1 or 2am, I had such bad chest pain that I could not sleep. I told the officer on duty, who called command center, and then called an ambulance.
8. Upon arrival at the hospital, my temperature was taken and registered at 102 degrees. My temperature had been taken at the facility within an hour earlier. I was told it had registered 97.
9. At the hospital I was tested for COVID-19 and tested positive. I believe I was released from the hospital on April 1st. It was a Wednesday. I was told that I would have to test negative twice before they would release me. I was tested most recently the Tuesday before I was released from the hospital. I got the results on Wednesday: I was positive for COVID-19. I was released that afternoon.
10. FSL has two isolation rooms. After I returned from the hospital, I was placed in one of the isolation rooms. Another prisoner who I was told had tested positive for COVID-19 was in the other isolation room. I remained in that room for 24 hours.

Case 3:20-cv-00569 Document 1-7 Filed 04/27/20 Page 3 of 3
11. The isolation room was cold and small, with just enough room for my bed and a toilet. The bed had a one-inch thick mattress and no pillow. The toilet’s flush was controlled by the corrections officer from outside the room and was only flushed a few times a day.
12. After 24 hours, I was placed in the facility’s visiting room for five days. There were four of us in the visiting room. While we were there, we used the visiting room bathrooms. Each woman had her own toilet stall, but we shared the same shower, a temporary standup stall built in order for us to be able to bathe.
13. At one point when we were in the visiting room, one of the other women fell when she was in the bathroom and hit her head on the concrete floor. She was unconscious, and we tried to get help for her. There was no guard outside the door. We tried to yell for help, but nobody came. We went to the locked front door and started beating on the door and yelling to try to get someone’s attention. Someone who was in the parking lot heard us and told control. A Commander came into the visiting room and we told him what had happened and that the woman who fell needed medical attention.
14. I returned to the general population housing unit on April 7.
15. I have continued to feel unwell since I returned to the unit. On April 17th I felt weak, had a fever and terrible body pains, and was sweating and dry heaving. That weekend I continued to feel terribly sick. I had a stomach ache that lasted at least 8 hours, horrible body aches, and my eyes burned. I was scared. I notified correctional officers, and I was taken to the medical clinic. My temperature was taken and registered 98 degrees, but I believe this was incorrect. My oxygenation was 96 and my blood pressure was so high that the nurse took it three times. The nurse instructed me to take Tylenol and return to my room.
16. Another prisoner in the unit was very sick and was taken to the hospital last night. She couldn’t stop dry heaving for three or four hours before she was sent to the hospital.
17. Today maybe 40 people were taken from the unit into the Rec room. I was told they were being tested for COVID-19. Some people who had been in contact with the prisoner who went to the hospital were still in the unit and not among the people in the Rec room.
18. I have reviewed the information contained in this declaration by telephone. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/S/ Kimberly Hoisington
April 25, 2020

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EXHIBIT H

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Case 3:20-cv-00569 Document 1-9 Filed 04/27/20 Page 1 of 3
EXHIBIT I

Case 3:20-cv-00569 Document 1-9 Filed 04/27/20 Page 2 of 3
Declaration of Tamika Somerville
1. I am currently in custody at Danbury FCI in the low security satellite prison (“FSL”). My Bureau of Prisons (“BOP”) Register Number is 33746-068.
2. I am 40 years old. I am 5’9” and I weigh approximately 220 pounds. I use the pronouns he/him.
3. I have asthma and hypertension.
4. I am serving a sentence of 15 years for possessing a firearm as a convicted felon. I was subject to a 15-year mandatory minimum based on having three prior drug convictions. My release date is set for March 20, 2025.
5. In early April I submitted a request to the Warden for compassionate release, and I submitted through my Federal Public Defender a request for home confinement.
6. At FSL it is not possible for me to social distance. I can try to keep to myself, but I am housed in a dorm style unit with 198 beds. The unit is divided into cubes like office cubicles with four people to a cube. The walls of the cubicles are about 4-5 feet high and do not reach the ceiling. The beds are not six feet apart.
7. Our unit has 3 bathrooms for all of the prisoners in our dormitory. Each bathroom has 6-8 toilet stalls and 6-8 showers. Not all of the showers are functional.
8. Meals are brought to all the prisoners in the unit at the same time; meal times are not staggered. They are brought on Styrofoam trays. There are not enough places for everyone to sit to eat.
9. The counselor’s office has hand sanitizer that I can use when I make a legal call. Hand sanitizer is not available in the units.
10. The prisoners have one fabric washable mask each. There are washing machines available to us to clean the masks. We do not have another mask to wear while our mask is being cleaned.
11. A woman in my unit was removed for fever. She reported that she tested positive for COVID-19 on a Tuesday. She was returned to our unit that same Friday. She sleeps in a cubicle that touches mine on the top bunk. I sleep on the bottom bunk. After she returned from the hospital, I slept with my head away from the wall to try to protect myself.

Case 3:20-cv-00569 Document 1-9 Filed 04/27/20 Page 3 of 3
12. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
I, Renee Pietropaolo, Assistant Federal Public Defender, certify that I reviewed the information in this declaration with Mr. Somerville by telephone on April 23, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
s/ Renee Pietropaolo Renee Pietropaolo Assistant Federal Public Defender Western District of Pennsylvania April 27, 2020

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EXHIBIT J

Case 3:20-cv-00569 Document 1-10 Filed 04/27/20 Page 2 of 4
Declaration of Theresa Foreman
1. I am currently in custody at Danbury FCI in the minimum-security women’s satellite camp (“Camp”). My Bureau of Prisons (“BOP”) Register Number is 26224-014.
2. I am 58 years old and African American. I am 5 feet 7 inches tall and I weigh approximately 240 pounds.
3. I have a medical history of hypertension, for which I am currently taking Hydrochlorothiazide and Aspirin.
4. I am serving a sentence of imprisonment of a year and a day for tax evasion—my first and only criminal conviction—and the BOP calculates my release date to be January 4, 2021, but I have been advised that I may be eligible for release to home confinement on November 30, 2020.
5. I self-surrendered to FCI Danbury on February 28, 2020.
6. On April 17, 2020, I submitted a request by U.S. Mail to Warden Easter for compassionate release, or, in the alternative, immediate transfer to home confinement. As of today, I have not received a response.
7. At the Camp, it is not possible for me to maintain physical distance from other women. I can try to keep to myself, but I am housed in a dorm style unit with about 47 other women. We sleep in a common space that is divided into open cubicles, each with a bunk bed that sleeps two women. The walls of the cubicles are about 4-5 feet high and do not reach the ceiling. The bunk beds are close enough that if I reached out my hand, I could touch the hand of the person in the bed next to me.
8. Camp prisoners are responsible for cleaning our own cubicles. Our shared living spaces in our dorm are not regularly disinfected.
9. Our unit has 5 toilets, 6 sinks and 6 showers that are currently shared by approximately 48 women. Our common toilets, sinks, and showers are not regularly cleaned or disinfected.
10. There are four dorms at Camp: A, B, C, and D. I am in Dorm B. Currently, I believe that the A, B and C dorms each house approximately 47-50 people. I believe that the D dorm houses 12 people.
11. Staff move throughout the day between all four of the dorms, including for count, food delivery, and commissary. Staff also rotate between the men’s prison, the FSL, and Camp, interacting with prisoners at each location.

Case 3:20-cv-00569 Document 1-10 Filed 04/27/20 Page 3 of 4
12. Among other duties, staff serve us our meals in our cubicles three times per day.
13. Several staff members that typically have shifts at the Camp have been out sick. Two staff members in particular have been out for several weeks, and their offices, which are usually cleaned by inmates, have been thoroughly disinfected, floors mopped, and furniture cleaned—I haven’t seen this type of cleaning before, and it goes far beyond the sanitation and cleaning practices throughout the rest of the Camp facility.
14. Cleaning throughout the rest of the Camp has been sporadic lately, as some prisoners have quit their jobs and some are quarantined in different dorms from their assigned cleaning areas. We do not have adequate cleaning supplies. I am not aware of any part of the Camp being sanitized or disinfected other than the two staff offices.
15. The Camp contains one common area with telephones, computers, and “video-visiting” machines. These items are shared by women housed in all four dorms; for the entire Camp, there are a total of 4 phones, 7 computers, and 3 video machines currently operational. The common area also includes hot water taps and sinks for dishwashing. The phones, computers, and video machines are clustered close together in the shared common space. They are not cleaned or disinfected between uses. There is cleaning solution available in the phone area, but not in the computer room. When we have access to the common area to make phone calls or use the computers, we often have to wait in line because they are in high demand. While we wait, we are not able to social distance from each other.
16. Prisoners have been given 2 surgical masks and 3 material masks in the last two weeks. We have not been given gloves.
17. Since April 15, the Camp has been on lockdown. Under this lockdown, the women in each dorm are let out of the dorm for one hour a day at different times of day. This is our only time for recreation and access to the common area. During the time we are confined to our dorm, we are instructed to remain in our cubicles. Since the walls between the cubicles are only 4 to 5 feet tall, we are still able to speak to other prisoners in our dorm over the wall.
18. There are a limited number of prisoners doing jobs, and those prisoners continue to move around the facility and between the dorms. Three times a week, my entire unit (all 48 of us) will move through the facility to the laundry room and deliver our laundry to prisoners who will do the laundry. We wait in line to drop it off, and we are not able to social distance while we wait in line.
2

Case 3:20-cv-00569 Document 1-10 Filed 04/27/20 Page 4 of 4
19. On April 16, the Assistant Warden visited the Camp and was asked if we would be informed if we were exposed to COVID-19. She said that we would not be told if we were exposed.
20. Every day, the lieutenant comes by and takes our temperature using a sensor thermometer, but since staff tries to get it as close to our heads as possible, it sometimes touches our head. The same thermometer is used for each inmate, and I do not see it being disinfected between uses. There is no screening for other symptoms such as coughing.
21. Although some women at the Camp have been told that they are on a “list” for home confinement, these women have not been released. I only know of two releases resulting from COVID-19 from Camp: a pregnant woman and a woman with Parkinson’s disease.
22. I have not been told that I am on the list for home confinement. 23. I declare under the penalty of perjury that the contents of this declaration are true and
correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
___/s/___________________________ Theresa Foreman April 26, 2020
3

Case 3:20-cv-00569 Document 1-11 Filed 04/27/20 Page 1 of 3
EXHIBIT K

Case 3:20-cv-00569 Document 1-11 Filed 04/27/20 Page 2 of 3
Declaration of Antrum Coston
I, Antrum Coston, am over the age of 18 and fully competent to make the following declaration:
1. I was incarcerated at FCI Danbury from April 2019 until April 17, 2020, when the Court granted my motion to reduce my sentence. I served a little more than two years for federal drug and gun convictions. My BOP Register Number was 15278-014.
2. I was housed in H Unit, a congested, second-floor dorm-style unit which houses about 75 prisoners.
3. All prisoners in H Unit sleep in bunk-beds in the same room. The bunk-beds are in rows, both side-by-side and front-to-back. Side-by-side, there is a distance of approximately 3’ between beds. I could stretch out my arms and touch the bunk next to me. Front-to-back, there is a distance of approximately 6’ between beds.
4. All 75 men in the unit share the same bathroom, which has one urinal, four or five toilets, five or six sinks, and a shower area with four showers. The unit also has two television rooms, a computer room with three computers, and a telephone room with two telephones. The television rooms can accommodate approximately 20 prisoners and it is not unusual for 15 or more prisoners to be in the same television room at the same time. The two phones in the telephone room are next to each other and if two prisoners are using the phones they have to stand right next to each other.
5. Most units in FCI Danbury are dorm-style. There are three cell units. One of the cell units is for the drug program, one is for mainly ex-military prisoners, and one (A Unit) was recently emptied and converted into a quarantine unit. Each cell has a bunk-bed for two prisoners, a sink and a toilet.
6. In February, many prisoners in my unit got very sick. Staff explained the outbreak as chicken pox, pneumonia, or shingles. The prison temporarily closed the gym in response to the outbreak. The gym was reopened in March. When the gym reopened, it was packed because prisoners had gone so long without working out.
7. In the beginning of March, prison staff took away prisoners’ spray bottles, which until then had been allowed. We were told that we could get spray bottles from a CO, but the CO was never on the block. In early April, we got our spray bottles back.
8. In mid-March, the prison cancelled all visits and split the jail in half. Although before then the entire prison would have rec at the same time, after mid-March half the prison would have rec at one time, and the other half would have rec at a different time.
9. Before mid-March the entire prison would eat around the same time, on staggered shifts. There would be about four units in the chow hall at any given time. After mid-March, only one unit would go to the chow hall at a time.
1

Case 3:20-cv-00569 Document 1-11 Filed 04/27/20 Page 3 of 3
10. In early April, the prison closed the gym and the law library and my unit was locked down. It was still locked down when I was released. My unit was allowed out of the dorm for one hour per day for rec. Some time after that, my unit started going to rec by itself, with no other units. People did not observe social distancing in the rec yard.
11. In early April, prison staff started allowing prisoners to wear mask. They did this because we were making our own masks. In the two weeks before I was released, the prison staff started providing prisoners with masks.
12. In mid-April, my unit stopped going to the chow hall entirely. All meals were brought to the unit. The prison switched from hot meals to bagged meals.
13. On approximately April 13, the prison started mandatory temperature-taking for prisoners. Before then, prison staff would come through the dorm and asked if anyone wanted to get their temperature checked. Having a high temperature would not necessarily result in any further action being taken. There were prisoners with 103-degree temperatures who were not taken out of the unit. Generally, if prisoners in the unit get sick, they just get sick. A couple extremely sick prisoners were taken out of the unit and transferred to A Unit. But you had to be falling down to get any help.
14. Medical has been no help. Before the crisis, prisoners could go to sick call in the morning, fill out a slip, and, depending on the severity of their condition, could expect to see a doctor a day or two later. For the last month, prisoners have been filling out slips but have not been hearing back from medical or getting appointments. I put in a slip approximately one month before I was released, and never heard back from medical.
15. The prison put up a few signs reminding people to wash their hands. They did not create any hand-washing stations or provide any prisoners with hand sanitizer or soap. There is no hand sanitizer available in the commissary. They used to have it, but they weren’t selling it to us for the last two months.
16. When I was released on April 17, there was no social distancing at the prison. Prisoners frequently stood directly next to each other when waiting in crowded, congested lines, including to receive medications, to use the commissary, and to get meals. At this time, some guards wore masks and some guards did not.
I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge.
/s/ Antrum Coston (by consent) Antrum Coston
April 26, 2020
2

Case 3:20-cv-00569 Document 1-12 Filed 04/27/20 Page 1 of 2
EXHIBIT L

Case 3:20-cv-00569 Document 1-12 Filed 04/27/20 Page 2 of 2
Declaration of Shannon Benson
1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register Number is 43247-061.
2. I am a 39 year old man. I suffer from Graves’ disease and Hashimoto's disease.
3. I am in G Unit at FCI Danbury. The unit is full of bunk beds. Each bed is about 3 feet away from the next bed. All the men in the unit share a bathroom that has one urinal and 5 individual stalls. We all share 2 phones and 3 computers.
4. Last week, a man passed away from COVID-19 who had been housed in my unit.
5. People with symptoms including coughing, chest restriction, headaches, and loss of taste and smell are not being taken up to medical or tested for the virus. You have to have a high temperature to be seen by medical. There are people in my unit right now who have serious symptoms and haven’t been seen by medical or removed from the unit.
6. I experienced loss of taste and smell, and had profuse cold sweats. I had headaches for 4 to 5 days. I was not tested for the virus. I was told that if you didn’t have an elevated temperature then it may have been a common cold or flu I was experiencing.
7. Around March 13, 2020, I was scheduled to go to a specialist due to my T4 levels being elevated to the point of danger. Due to COVID-19, I was unable to be seen by the specialist. I did not receive any blood work here at the institution until April 24 to see if in fact my thyroid condition had leveled out. I am concerned my medication is not performing correctly because of my elevated levels.
8. They didn’t start passing out masks or install a soap dispenser until about 2 weeks ago. We only recently got regular access to cleaning supplies. Our shower area is heavily coated with fungus and mildew, there are several significant leaks. FCI Danbury has had a history of asbestos.
9. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
______/s/_________________ Shannon Benson
April 26, 2020
1

Case 3:20-cv-00569 Document 1-13 Filed 04/27/20 Page 1 of 2
EXHIBIT M

Case 3:20-cv-00569 Document 1-13 Filed 04/27/20 Page 2 of 2
Declaration of Richard Johnson 1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register
Number is 44910-054.
2. I am a 65 year old man.
3. I am serving a 48-month sentence. My release date is October 14, 2021.
4. My understanding is that I was the first person placed in isolation at FCI Danbury for the COVID-19 virus.
5. Before I got sick, I was housed in the M Unit. I began feeling symptoms but wasn’t able to be seen by medical for about two days. On March 27, 2020, I pushed my way to medical and demanded to be seen.
6. When I was seen at medical, they had just received 22 COVID-19 tests and I was immediately given one.
7. I was then locked up in an observation cell. There were long periods of time that no one came to see me. I even missed meals.
8. I was later moved to a celled unit. For a period of 6 days, I was not given a shower or my medications. I was also not allowed to communicate with my family during that period of time.
9. After 12 days of isolation, I was released from quarantine back to the M Unit. When I returned to my unit, many men were ill.
10. I am still experiencing residual effects of the virus including swollen knees and joint pain. I am also now on medication for high blood pressure (which I wasn’t on before) and I use a respirator pump.
11. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
______/s/________________________ Richard Johnson April 26, 2020
1

Case 3:20-cv-00569 Document 1-14 Filed 04/27/20 Page 1 of 2
EXHIBIT N

Case 3:20-cv-00569 Document 1-14 Filed 04/27/20 Page 2 of 2
Declaration of Ronald Harper 1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register
Number is 05758-055. 2. I am a 54 year old man. My release date is January 28, 2021. 3. I suffer from diabetes, asthma, kidney disease, high blood pressure, high cholesterol, and
COPD (chronic obstructive pulmonary disease). 4. I am in H Unit at FCI Danbury. There are about 70 inmates housed here. The unit is dorm
style with bunk beds. All the men share a bathroom. There are four toilets and two urinals. There are six sinks and four showers. It is not enough for the number of inmates in the unit. We also share phones and computers. 5. I had a sore throat and a cough a few weeks ago. I talked to medical staff and they told me to buy some cough syrup from the commissary. I was not tested for COVID-19 and they kept me in the unit 6. When an inmate has symptoms of the virus they were leaving them in the unit. Now they are taking some to another unit. But there are still inmates with symptoms of the virus in the unit. 7. I feel very vulnerable here. There is no space for social distances. Medical staff are not checking on the inmates like they should. 8. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
____/s/__________________________ Ronald Harper April 26, 2020
1

 
 For immediate release:
CLASS ACTION FILED AGAINST BUREAU OF PRISONS FOR
GROSS FAILURES IN COVID-19 RESPONSE AT FCI DANBURY
A class action lawsuit was filed today in federal court in Connecticut seeking to require federal officials to provide emergency measures to protect the 1,000+ women and men at the three facilities within the low security federal prison in Danbury, Connecticut (“FCI Danbury”) from COVID-19.
The lawsuit responds to the COVID-19 disaster that is underway at FCI Danbury. The prison has one of the biggest outbreaks in the federal system, and in recent weeks, more than forty incarcerated people and more than thirty staff have tested positive for COVID-19. Many more are likely positive, but the Bureau of Prisons is not reliably releasing that information and, worse yet, for some time stopped testing.
“Public health experts uniformly agree that prisons are hot spots for the spread of COVID-19 that require prison officials to take swift action to protect the lives of those in their custody,” said Professor Sarah Russell, one of the lawyers representing the proposed class. “FCI Danbury has completely disregarded these warnings, placing incarcerated people at an unbearable and unconstitutional risk of contracting the disease.”
The people imprisoned at FCI Danbury are among the most vulnerable to COVID-19. They live in close quarters, with units containing more than 100 people lined up in rows of bunk beds, and with communal bathrooms and dining areas. Many are experiencing serious symptoms, including high fevers and difficulty breathing, but have not been tested or removed from these crowded living areas. Access to medical care in the facility is woefully inadequate, and there have been significant delays in getting critically ill prisoners transported to local hospitals.
FCI Danbury contains a women’s “camp,” the lowest level security facility in the entire federal prison system. Yet, despite the ability to release low-level prisoners, those incarcerated at FCI Danbury remain in dangerous living conditions virtually certain to promote the spread of COVID-19 through the Danbury prisoner and staff populations.
The lawsuit filed today asks the federal district court to order that the Bureau of Prisons immediately identify prisoners who are medically vulnerable and can be safely relocated to home confinement, as Attorney General Barr has directed, and to provide safe and humane conditions for those imprisoned at FCI Danbury.
The case is brought by the law firm of Silver Golub & Teitell LLP, the Civil Justice Clinic at Quinnipiac University School of Law, and the Jerome N. Frank Legal Services Organization at Yale Law School.
For more information, contact: Marisol Orihuela, Yale Law School - 404-625-2307; Sarah Russell, Quinnipiac University School of Law 917 749-4008; David S. Golub, Silver Golub & Teitell LLP - 203 253-9444; Jonathan Levine, Silver Golub & Teitell LLP - 203 273-2330

 
 U.S. District Court District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:20-cv-00569-MPS

Martinez-Brooks et al v. Easter et al Assigned to: Judge Michael P. Shea Referred to: Judge Thomas O. Farrish (Settlement) Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Date Filed: 04/27/2020 Date Terminated: 10/20/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Petitioner
Dianthe Martinez-Brooks individually, and on behalf of all others similarly situated TERMINATED: 06/15/2020

represented by David S. Golub Silver, Golub & Teitell 184 Atlantic St., Stamford, CT 06901 203-325-4491 Fax: 203-325-3769 Email: dgolub@sgtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M. Levine Silver, Golub & Teitell 184 Atlantic St., Stamford, CT 06901 203-325-4491 Fax: 203-325-3769 Email: jlevine@sgtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisol Orihuela Jerome N. Frank Legal Services Wall St Yale Law School 127 Wall Street New Haven, CT 06511 Email: marisol.orihuela@yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah French Russell

Petitioner
Rejeanne Collier individually, and on behalf of all others similarly situated TERMINATED: 06/15/2020

Legal Clinic, Quinnipiac University School of Law 275 Mount Carmel Avenue Hamden, CT 06518 203-582-3238 Fax: 203-582-3237 Email: sarah.russell@quinnipiac.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Harrington University at Buffalo School of Law John Lord O'Brian Hall Buffalo, NY 14260 716-984-2453 Email: aharr@buffalo.edu ATTORNEY TO BE NOTICED
Tessa Baxter Bialek Legal Clinic, Quinnipiac University School of Law 275 Mount Carmel Avenue Hamden, CT 06518 203-582-3415 Email: tessa.bialek@quinnipiac.edu ATTORNEY TO BE NOTICED
represented by David S. Golub (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan M. Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisol Orihuela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah French Russell (See above for address) LEAD ATTORNEY

Petitioner Jackie Madore individually, and on behalf of all others similarly situated
Petitioner Kenneth Cassidy individually, and on behalf of all others similarly situated TERMINATED: 06/15/2020

ATTORNEY TO BE NOTICED
Alexandra Harrington (See above for address) ATTORNEY TO BE NOTICED
Tessa Baxter Bialek (See above for address) ATTORNEY TO BE NOTICED
represented by David S. Golub (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan M. Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisol Orihuela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah French Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Harrington (See above for address) ATTORNEY TO BE NOTICED
Tessa Baxter Bialek (See above for address) ATTORNEY TO BE NOTICED
represented by David S. Golub (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Petitioner Amanda Eliza Cooper TERMINATED: 06/16/2020
Petitioner James Whitted individually, and on behalf of all others similarly situated

Jonathan M. Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisol Orihuela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah French Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Harrington (See above for address) ATTORNEY TO BE NOTICED
Tessa Baxter Bialek (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan M. Levine (See above for address) ATTORNEY TO BE NOTICED
represented by David S. Golub (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisol Orihuela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah French Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zal Kotval Shroff

Petitioner Amanda Cooper individually, and on behalf of all others similarly situated
V. Respondent D. Easter Warden of Federal Correctional Institution at Danbury, in their individual capacities

127 Wall Street New Haven, CT 06511 203-432-4800 Email: zal.shroff@yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fiona Doherty Yale Law School PO Box209090 133 Wall Street New Haven, CT 06520 203-432-4800 Fax: 203-432-1426 Email: fiona.doherty@yale.edu ATTORNEY TO BE NOTICED
Jonathan M. Levine (See above for address) ATTORNEY TO BE NOTICED
represented by David Christopher Nelson U.S. Attorney's Office-NH 157 Church St., 25th Floor New Haven, CT 06510 203-821-3700 Fax: 203-773-5373 Email: David.C.Nelson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jillian R. Orticelli United States Attorney's Office 157 Church Street Ste 25th Floor New Haven, CT 06510 203-821-3700

Respondent
Michael Carvajal Director of the Federal Bureau of Prisons, in their official capacities TERMINATED: 05/20/2020

Email: jillian.orticelli@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Hughes U.S. Attorney's Office-NH 157 Church St., 25th Floor New Haven, CT 06510 203-821-3802 Fax: 203-773-5373 Email: john.hughes@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy U.S. Attorney's Office-NH 157 Church St., 25th Floor New Haven, CT 06510 203-821-3700 Fax: 203-773-5373 Email: michelle.mcconaghy@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathaniel Michael Putnam DOJ-USAO 157 Church Street Ste Floor 24 New Haven, CT 06510 203-821-3805 Email: nathaniel.putnam@usdoj.gov ATTORNEY TO BE NOTICED
represented by David Christopher Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jillian R. Orticelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Hughes

Movant Andrew S. Mackey Movant Bernice Mackey Movant Rhonda Fleming TERMINATED: 08/26/2020 Movant Josh Lenchick
Movant Deric Twitty Movant Jai-Fanon Jackson Movant Michael Milchin

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michelle Lynn McConaghy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Nathaniel Michael Putnam (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Murray Near Federal Defender's Office 265 Church Street Suite 702 New Haven, CT 06510 203-498-4200 Fax: 203-498-4207 Email: Allison_Near@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Frederick Banks
Movant Robert Armstrong
Movant Savino Braxton

represented by Savino Braxton #27314-037 Federal Prison Camp P.O. Box 2000 Lewisburg, PA 17837 PRO SE

Date Filed 04/27/2020
04/27/2020 04/27/2020 04/27/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number ACTDC-5825186.), filed by Dianthe Martinez-Brooks, Kenneth Cassidy, Jackie madore, Rejeanne collier. (Attachments: # 1 Exhibit Declaration of Jaimie Meyer, M.D., # 2 Exhibit Declaration of Professor Judith Resnik, # 3 Exhibit Declaration of Dianthe Martinez-Brooks, # 4 Exhibit Declaration of Kenneth Cassidy, # 5 Exhibit Declaration of Christina Korbe, # 6 Exhibit Declaration of Marius (Marie) Mason, # 7 Exhibit Declaration of Kimberly Hoisington, # 8 Exhibit Declaration of Rafael Almonte, # 9 Exhibit Declaration of Tamika Sommerville, # 10 Exhibit Declaration of Theresa Forman, # 11 Exhibit Declaration of Antrum Coston, # 12 Exhibit Declaration of Shannon Benson, # 13 Exhibit Declaration of Richard Johnson, # 14 Exhibit Declaration of Ronald Harper)(Levine, Jonathan) (Entered: 04/27/2020)
2 NOTICE of Related Case by Kenneth Cassidy, Dianthe MartinezBrooks, Rejeanne collier, Jackie madore (Levine, Jonathan) (Entered: 04/27/2020)
3 MOTION for Order to Show Cause by Kenneth Cassidy, Dianthe Martinez-Brooks, Rejeanne collier, Jackie madore. (Levine, Jonathan) (Entered: 04/27/2020)
4 NOTICE of Appearance by David S. Golub on behalf of Kenneth Cassidy, Dianthe Martinez-Brooks, Rejeanne collier, Jackie madore (Golub, David) (Entered: 04/27/2020)

04/27/2020 04/27/2020 04/27/2020 04/27/2020 04/27/2020
04/28/2020 04/28/2020 04/29/2020

5 NOTICE of Appearance by Marisol Orihuela on behalf of Kenneth Cassidy, Dianthe Martinez-Brooks, Rejeanne collier, Jackie madore (Orihuela, Marisol) (Entered: 04/27/2020)
6 NOTICE of Appearance by Sarah French Russell on behalf of Kenneth Cassidy, Dianthe Martinez-Brooks, Rejeanne collier, Jackie madore (Russell, Sarah) (Entered: 04/27/2020)
Judge Michael P. Shea added. (Nuzzi, Tiffany) (Entered: 04/28/2020)
9 STANDING PROTECTIVE ORDER Signed by Judge Michael P. Shea on 04/27/2020. (Peterson, M) (Entered: 04/28/2020)
10 ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Michael P. Shea on 04/27/2020. (Peterson, M) (Entered: 04/28/2020)
7 NOTICE of Appearance by Jonathan M. Levine on behalf of Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe MartinezBrooks (Levine, Jonathan) (Entered: 04/28/2020)
8 NOTICE of Appearance by Tessa Baxter Bialek on behalf of Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe MartinezBrooks (Bialek, Tessa) (Entered: 04/28/2020)
11 ORDER: The Court GRANTS in part the Motion for Order to Show Cause (ECF No. 3) as follows: The Clerk shall serve the Petition and a copy of this order on the Respondents, Rules Governing Section 2254 Cases, Rules 1(b) and 4; and the Plaintiffs shall serve a copy of this order and a copy of all of their filings in this action on the United States Attorney's Office for the District of Connecticut by email and shall file proof of confirmation of receipt of such email service on the docket. Within 6 days of the Plaintiffs' filing of proof of such service, the Respondents shall file a response to this order showing cause why the writ should not be granted, the Court finding good cause to allow time beyond the three days specified in 28 U.S.C. Sec. 2243, due to the size and complexity of the plaintiffs' filings. The Court will promptly schedule an initial telephonic status conference with the parties once the Respondents have filed their response; the purpose of the conference, which the Court will endeavor to hold within 36 hours of the filing of the response, will be to discuss the nature and timing of the hearing the Court should hold to adjudicate the petition and any other issues raised in the parties' papers, including but not limited to whether the Court should require Respondents promptly to identify members of the

04/29/2020 04/30/2020
04/30/2020 04/30/2020 04/30/2020

Subclass defined in the Petition, as requested in the Motion for Order to Show Cause. To the extent the Notice of Related Case should be construed as a request to transfer this case to Judge Bolden, it is DENIED. The undersigned, too, has been assigned habeas petitions arising under Section 2241 and brought by inmates at FCI Danbury (see, e.g., Serfass v. Warden, 20cv513), and other judges in this district apart from the undersigned and Judge Bolden likely have been as well. Further, the Foreman case raises several issues not raised in this case, and this case, a putative class action, raises many issues not raised in that case.
Signed by Judge Michael P. Shea on 4/29/2020. (Karpman, Michael) (Entered: 04/29/2020)
12 CERTIFICATE OF SERVICE by Michael Carvajal, Kenneth Cassidy, Rejeanne Collier, D. Easter, Jackie Madore, Dianthe Martinez-Brooks re 11 Order on Motion for Order to Show Cause,,,,,,,, (Golub, David) (Entered: 04/29/2020)
13 ORDER: In light of the Certification of Service filed by Plaintiffs (ECF No. 12), the response by Respondents to the Court's order to show cause is due on May 5, 2020.
Signed by Judge Michael P. Shea on 4/30/2020. (Karpman, Michael) (Entered: 04/30/2020)
Set Deadlines: Show Cause Response due by 5/5/2020 (Johnson, D.) (Entered: 04/30/2020)
14 Emergency MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction (Responses due by 5/21/2020, ) by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks. (Golub, David) (Entered: 04/30/2020)
15 Memorandum in Support re 14 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks. (Attachments: # 1 Exhibit O -- Declaration of Miranda McLaurin, # 2 Exhibit P -- Second Declaration of Kimberly Hoisington, # 3 Exhibit Q -- Declaration of Shannon Battle, # 4 Exhibit R -- Declaration of Kimberly Kitts, # 5 Exhibit S -- Second Declaration of Christina Korbe, # 6 Exhibit T -- Second Declaration of Dianthe Martinez-Brooks, # 7 Exhibit U -- Danbury Inmate Bulletin (4/16/20), # 8 Exhibit V -Danbury Inmate Bulletin (4/21/20))(Golub, David) (Entered: 04/30/2020)

05/01/2020 05/01/2020 05/01/2020
05/01/2020 05/01/2020
05/03/2020

16 NOTICE of Appearance by Jillian R. Orticelli on behalf of Michael Carvajal, D. Easter (Orticelli, Jillian) (Entered: 05/01/2020)
17 NOTICE of Appearance by John B. Hughes on behalf of Michael Carvajal, D. Easter (Hughes, John) (Entered: 05/01/2020)
18 ORDER. The Government shall respond to the 14 motion for temporary restraining order by May 5, 2020. If it wishes to do so, the Government may combine this response with its response to the order to show cause. The Court will hold a telephonic status conference on May 6, 2020 at 1:00 p.m.
Signed by Judge Michael P. Shea on 5/1/2020. (Karpman, Michael) (Entered: 05/01/2020)
19 NOTICE of Appearance by Nathaniel Putnam on behalf of Michael Carvajal, D. Easter (Putnam, Nathaniel) (Entered: 05/01/2020)
Set Deadlines/Hearings:( Show Cause Response due by 5/5/2020, Telephonic Status Conference set for 5/6/2020 01:00 PM before Judge Michael P. Shea), Set Deadlines as to 14 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction .(Responses due by 5/5/2020, ) (Johnson, D.) (Entered: 05/04/2020)
20 ORDER: Nothing in this order should be taken as any indication about how the Court will rule on the petition or motion for temporary restraining order/preliminary injunction. The Government must file its responses to the order to show cause and the motion for temporary restraining order/preliminary injunction by 6pm on May 5, 2020. (The time was inadvertently omitted from the Court's previous order.) The parties shall be prepared to argue the motion for temporary restraining order/preliminary injunction at the telephonic hearing scheduled for 1pm on May 6. To facilitate preparation for that argument, and to facilitate any relief the Court might order after the argument and/or after further proceedings, the parties shall be prepared to discuss the following legal and factual issues. To the extent these questions can only be answered by the Government, Government counsel shall make diligent efforts before the call to obtain answers:
1. Do the provisions of 18 U.S.C. Sec. 3626 apply to this case, i.e., is this a "civil action with respect to prison conditions"? Relatedly, is the relief petitioners are seeking a "prisoner release order"? See 18 U.S.C. Sec. 3626(g)(2),(4).
2. Although the Second Circuit has "conclude[d] that the class action

device should not be imported into collateral actions, as least in its full vigor as contemplated by Rule 23," it has recognized "the power of the judiciary... to fashion for habeas actions appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage." U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974). In Preiser, the court allowed "a multi-party proceeding similar to the class action" on behalf of young adults serving misdemeanor sentences, because "many of those serving reformatory sentences are likely to be illiterate or poorly educated," "most would not have the benefit of counsel to prepare habeas corpus petitions," and "considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue is thereby avoided." Id. at 1126; see also id. at 1127 ("And although we believe that more stringent standards may be appropriate in deciding whether a habeas action presents substantial and common questions of law or fact, it is apparent that the complaint of the representative parties in this suit states a clear and unitary allegation on behalf of all young adult misdemeanants."). To what extent does this habeas petition satisfy these criteria for "a multi-party proceeding similar to the class action," given that the requested relief includes "bail," "enlargement," or "release" and that such relief ordinarily requires the assessment of the individual circumstances of the applicant, cf. 18 U.S.C. Sec. 3142(g)(3) (directing the court to consider, among other things, "the history and characteristics of the person" when making release determinations)?
3. What is the current population and capacity of each of the three facilities at FCI Danbury?
4. What is the availability of extra space that might be outfitted for living or quarantine space at each of the three facilities?
5. For each of the three facilities at Danbury FCI, how many written requests based on the circumstances presented by COVID-19 have been made for temporary release, home confinement, or compassionate release (under 18 U.S.C. Secs. 3622, 3624, 3582(c)(1)(A), the CARES Act, or any other authority)? And for each facility, (1) how many such requests have been granted either by the BOP or by the Court, and (2) how many inmates have actually been released - whether it be to home confinement, a half-way house, or otherwise?
6. Which of the named petitioners have sought the relief in paragraph 5, what types of relief have been sought, and what is the status of any requests/motions? (The Court will ask this question first of Petitioners' counsel.)
7. How long would it take the Warden to respond to a court order

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05/11/2020

requiring the production of a list of all inmates at each of the three facilities falling within the subclass defined by the petitioners or an alternative subclass based on the CDC's guidance as to vulnerable persons, see https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html?
This is not a comprehensive list of the questions the Court will ask. Counsel should be prepared on all issues raised in their papers.
Signed by Judge Michael P. Shea on 5/3/2020. (Karpman, Michael) (Entered: 05/03/2020)
21 NOTICE of Appearance by Michelle Lynn McConaghy on behalf of Michael Carvajal, D. Easter (McConaghy, Michelle) (Entered: 05/04/2020)
22 Notice of Additional Authority re 14 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Michael Carvajal, Kenneth Cassidy, Rejeanne Collier, D. Easter, Jackie Madore, Dianthe Martinez-Brooks. (Golub, David) (Entered: 05/04/2020)
23 NOTICE of Appearance by David Christopher Nelson on behalf of Michael Carvajal, D. Easter (Nelson, David) (Entered: 05/05/2020)
24 MOTION to Dismiss for Lack of Jurisdiction by Michael Carvajal, D. Easter.Responses due by 5/26/2020 (Attachments: # 1 Memorandum in Support, # 2 Exhibits A through F)(McConaghy, Michelle) (Entered: 05/05/2020)
25 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 5/6/2020. Total Time: 1 hours and 39 minutes(Court Reporter J. Monette.) (Johnson, D.) (Entered: 05/07/2020)
26 Supplemental Memorandum in Support re 14 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit B -- CDC Guidance, # 3 Exhibit C -- ICD Codes, # 4 Exhibit D -- Status report in Wilson v. Williams, # 5 Exhibit E -- Motion to Enforce in Wilson v. Williams)(Golub, David) (Entered: 05/07/2020)
27 Memorandum in Support re 14 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction Second Supplemental Memorandum in Support of Motion filed by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks.

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(Attachments: # 1 Exhibit A -- Second Declaration of Kenneth Cassidy, # 2 Exhibit B -- Government Filing in Compassionate Release Case, # 3 Exhibit C -- Declaration of Edward Clinton Jones, # 4 Exhibit D -Declaration of Ivan Joseph Soto, # 5 Exhibit E -- Declaration of Mark A. Youngs, # 6 Exhibit F -- Declaration of Rogers Perkins)(Russell, Sarah) (Entered: 05/11/2020)
28 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference on Motions held on 5-6-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 6/1/2020. Redacted Transcript Deadline set for 6/11/2020. Release of Transcript Restriction set for 8/9/2020. (Monette, Julie) (Entered: 05/11/2020)
29 Notice of Additional Authority re 24 MOTION to Dismiss for Lack of Jurisdiction filed by Michael Carvajal, D. Easter. (Attachments: # 1 Grinis Decision, # 2 Alvarez Decision)(Nelson, David) (Entered: 05/11/2020)
30 ORDER: For the reasons set forth in the attached ruling and order, the Court grants in part and denies in part the 14 motion for temporary restraining order, denies the 24 motion to dismiss, and sets the motion for preliminary injunction down for a hearing on June 11, 2020 at 9am. The parties should pay close attention to the temporary restraining order, and the deadlines therein, set forth at the end of the attached ruling and order. In addition, as indicated in the attached order regarding preliminary injunction hearing (also appearing at the end of the attached ruling), the Court schedules a telephonic status conference for May 14, 2020 at 3:00 p.m.
Signed by Judge Michael P. Shea on 5/12/2020. (Karpman, Michael) (Entered: 05/12/2020)

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Set Deadlines/Hearings: Telephonic Status Conference set for 5/14/2020 03:00 PM before Judge Michael P. Shea (Johnson, D.) (Entered: 05/13/2020)
Set Deadlines as to 14 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction . Motion Hearing set for 6/11/2020 09:00 AM in Courtroom Two, 450 Main St., Hartford, CT before Judge Michael P. Shea (Johnson, D.) (Entered: 05/13/2020)
31 ORDER: The Court notes that it is has not yet decided the format of the June 11 preliminary injunction hearing and, in particular, whether it will be in-person, partially remote, or entirely remote. The Court will issue a notice regarding the format of the hearing after receiving input from the parties and in due course. Signed by Judge Michael P. Shea on 5/14/20.(Johnson, D.) (Entered: 05/14/2020)
32 ORDER: During the 3:00 p.m. call today, counsel shall be prepared to discuss the issue of security under Fed. R. Civ. P. 65(c).
Signed by Judge Michael P. Shea on 5/14/2020. (Karpman, Michael) (Entered: 05/14/2020)
33 NOTICE OF COMPLIANCE WITH PRETRIAL ORDER by Michael Carvajal, Kenneth Cassidy, Rejeanne Collier, D. Easter, Jackie Madore, Dianthe Martinez-Brooks re 30 Order on Motion to Dismiss/Lack of Jurisdiction,,,, Order on Motion for TRO,,, Discovery Plan (Attachments: # 1 Exhibit A)(Golub, David) (Entered: 05/14/2020)
34 ORDER. For the reasons discussed during today's call, the Court hereby amends the Temporary Restraining Order entered on May 12, 2020, see ECF No. 30 at 68-73, as follows:
(1) Paragraph 1f is amended to read as follows: "Respondent shall provide the list to Petitioners' counsel, and the list shall be marked 'Confidential Attorneys' Eyes Only' and be treated accordingly under the Protective Order entered in this case, ECF No. 9, except that Petitioners' counsel may also disclose information on the list pertaining to a particular inmate to (a) that inmate and/or (b) that inmate's representative (either the inmate's family member or his/her attorney). To be clear, Petitioners counsel may not disclose information pertaining to one inmate to another inmate or another inmate's representative."
(2) The Court nunc pro tunc amends the Temporary Restraining Order and Ruling (ECF No. 30) to indicate that it has considered whether to require the Petitioners to give security under Rule 65(c) and has concluded that, because they are indigent and because of the nature of

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the case, the amount of security is set at $0.
With regard to the discussion on the call concerning the Connecticut Supreme Court's decision in Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 327 Conn. 540 (2018), the Court does not find that that decision, or the Connecticut statute or HIPAA regulations cited therein, is an obstacle to amending the Temporary Restraining Order further to require that the list of inmates in the Medically Vulnerable Subclass include ICD codes. The Byrne decision suggests, and the statute and HIPAA regulations make clear, that a disclosure made in response to a court order, as opposed to a subpoena issued by a litigant, would not expose the person subject to the court order to liability. Nonetheless, as Respondents asked to file a proposed order on this point, the Court will await making further amendments to the temporary restraining order until the Respondents file the proposed language, provided they do so promptly.
As discussed, by close of business on Tuesday, May 19, 2020, the parties are directed to submit a joint proposal regarding the format and logistics of the preliminary injunction hearing, including whether any part of the proceeding should be conducted in the courtroom. The Court will issue a further order regarding the hearing after it receives this input from the parties.
Signed by Judge Michael P. Shea on 5/14/2020. (Karpman, Michael) (Entered: 05/14/2020)
35 NOTICE by Michael Carvajal, D. Easter of Proposed Protective Order (Attachments: # 1 Proposed Protective Order)(McConaghy, Michelle) (Entered: 05/14/2020)
36 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 5/14/2020. 53 minutes(Court Reporter J. Monette.) (Johnson, D.) (Entered: 05/15/2020)
37 ORDER. The Court hereby amends the Temporary Restraining Order entered on May 12, 2020, ECF No. 30 at 69-73, as follows: Paragraph 1b is amended to read: "The list referred to in paragraph 1 shall include the identify of the inmate, the inmate's sentencing court, the case number of the inmate's underlying criminal conviction, and the ICD code(s) that caused the inmate to be included on the list."
The Court enters the attached protective order.
Signed by Judge Michael P. Shea on 5/15/2020. (Karpman, Michael) (Entered: 05/15/2020)

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38 ORDER. Any discovery disputes that arise between the parties are hereby REFERRED to United States Magistrate Judge Thomas O. Farrish.
Signed by Judge Michael P. Shea on 5/15/2020. (Karpman, Michael) (Entered: 05/15/2020)
39 ORDER RE: Discovery Disputes. Any discovery disputes that cannot be resolved through good-faith negotiation between counsel shall be raised with Judge Farrish in accordance with Judge Shea's "Instructions for Discovery Disputes," except that (i) the initial phone call referenced in Paragraph 1 of the instructions shall be to Judge Farrish's chambers at 860-240-3606, rather than to Judge Shea's chambers; and (ii) unless otherwise ordered by Judge Farrish during the initial phone call, the letter referenced in Paragraph 2 of the instructions shall be submitted within 24 hours of the call, in light of the compressed schedule applicable to this case. A copy of Judge Shea's "Instructions for Discovery Disputes" may be found on his web page under the "Judges" header on the District of Connecticut website, www.ctd.uscourts.gov. It is so ordered. Signed by Judge Thomas O. Farrish on 05/15/2020. (Farrish, Thomas) (Entered: 05/15/2020)
40 NOTICE by Michael Carvajal, D. Easter of filing the inmate list (Nelson, David) (Entered: 05/15/2020)
41 Sealed Document: Inmate List by Michael Carvajal, D. Easter re 40 Notice (Other) . (Nelson, David) (Entered: 05/15/2020)
42 NOTICE by Michael Carvajal, D. Easter re 40 Notice (Other) Declarations Regarding the Inmate List (Attachments: # 1 Declaration 1, # 2 Declaration 2)(Nelson, David) (Entered: 05/15/2020)
43 NOTICE by Michael Carvajal, D. Easter of List of Factors (Attachments: # 1 Declaration, # 2 List of Factors)(Nelson, David) (Entered: 05/15/2020)
44 NOTICE by Michael Carvajal, D. Easter Written Statement regarding PATTERN and Mental Health (Attachments: # 1 Written Statement)(Nelson, David) (Entered: 05/15/2020)
45 ORDER REFERRING CASE to Magistrate Judge Thomas O. Farrish for discovery disputes. Signed by Judge Michael P. Shea on 5/15/20.(Johnson, D.) (Entered: 05/18/2020)

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46 Joint NOTICE by Michael Carvajal, Kenneth Cassidy, Rejeanne Collier, D. Easter, Jackie Madore, Dianthe Martinez-Brooks re 34 Order,,,,,,,,,, re Format of Preliminary Inj Hearing (Golub, David) (Entered: 05/19/2020)
47 NOTICE by Michael Carvajal, D. Easter of Compliance with Sections 3(b) and 3(c) of the TRO (Attachments: # 1 Declaration, # 2 Program Statement)(McConaghy, Michelle) (Entered: 05/19/2020)
48 NOTICE by Michael Carvajal, D. Easter of Declaration regarding Compassionate Release / Reduction in Sentence (Attachments: # 1 Declaration, # 2 Exhibit B)(Nelson, David) (Entered: 05/19/2020)
49 Sealed Document: Exhibit A by Michael Carvajal, D. Easter re 48 Notice (Other) . (Nelson, David) (Entered: 05/19/2020)
50 NOTICE of Voluntary Dismissal of Carvajal by All Plaintiffs (Golub, David) (Entered: 05/19/2020)
51 NOTICE by D. Easter of Compliance with Section 1(d)(b) of the TRO (Attachments: # 1 Declaration)(Putnam, Nathaniel) (Entered: 05/19/2020)
52 ORDER. Plaintiffs have filed a notice of voluntary dismissal of all claims against Respondent Michael Carvajal. Accordingly, all claims against Respondent Michael Carvajal are hereby DISMISSED.
Signed by Judge Michael P. Shea on 5/20/20. (Karpman, Michael) (Entered: 05/20/2020)
53 ORDER: The Court has reviewed the parties' joint report regarding the format and logistics for the preliminary injunction hearing. (ECF No. 46.) In accordance with the parties' proposal, the hearing will be held over Zoom and the Court will issue a Zoom link on the docket shortly before the hearing. The parties note that it may be necessary to have inmates testify via telephone. While this is acceptable to the Court if there really are no other alternatives, the Court strongly prefers that all witnesses testify via Zoom and notes that it has conducted Zoom hearings with inmates at other facilities. The Court is prepared to issue any orders reasonably necessary to facilitate Zoom participation by inmates. The parties shall file a further status report with regard to these issues on May 29, 2020.
Signed by Judge Michael P. Shea on 5/20/2020. (Karpman, Michael) (Entered: 05/20/2020)

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Set Deadlines: Joint Status Report due by 5/29/2020 (Johnson, D.) (Entered: 05/20/2020)
54 NOTICE: Petitioners' counsel have inquired of the Court, copying Respondents' counsel, as to the scope of the permission under amended Paragraph 1f to "disclose information on the list pertaining to a particular inmate to (a) that inmate and/or (b) that inmates representative (either the inmates family member or his/her attorney)." ECF No. 34. For clarity, the Court notes that this directive does not limit the ability of an inmate or the inmate's lawyer to disclose that inmate's inclusion on the list, or any information on the list pertaining to that inmate, in order to advocate in the inmate's interests, including, without limitation, by disclosing the information to judges who may be presiding over requests made by the inmate under Section 3582(c)(1)(A).
Signed by Judge Michael P. Shea on 5/21/2020. (Karpman, Michael) (Entered: 05/21/2020)
55 NOTICE by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks Petitioners' Notice in Advance of Court's May 26, 2020 Status Conference (Attachments: # 1 Exhibit Petitioners' Record Search Request, # 2 Exhibit Petitioners' Requested Codes and Medications for Search)(Russell, Sarah) (Entered: 05/22/2020)
56 ORDER. The Court has reviewed the Petitioners 55 notice and wishes to make clear that the document(s) referred to in Paragraph 5 of the TRO containing individualized explanations of any denials of home confinement must also be provided to Petitioners' counsel. In stating that the document had to be provided "to the Court (under seal)," the Court did not mean to suggest that the document did not have to be provided to Petitioner's counsel. Any such suggestion was inadvertent, because if the document is not provided to the Petitioners, the parties will be unable to have a meaningful conversation during the May 26 conference regarding whether Respondents have complied with the Temporary Restraining Order.
Signed by Judge Michael P. Shea on 5/22/2020. (Karpman, Michael) (Entered: 05/22/2020)
57 NOTICE by D. Easter regarding Completion of Home Confinement Review Process for "Medically Vulnerable" List (Attachments: # 1 Declaration)(Nelson, David) (Entered: 05/25/2020)
58 Sealed Document: Exhibit A by D. Easter re 57 Notice (Other) . (Nelson, David) (Entered: 05/25/2020)

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59 Sealed Document: Review Worksheets by D. Easter re 57 Notice (Other) . (Nelson, David) (Entered: 05/25/2020)
60 NOTICE by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks OF RULE 34 INSPECTION OF FCI DANBURY (Orihuela, Marisol) (Entered: 05/26/2020)
61 ORDER. The Court held a telephonic status conference today to discuss issues related to the Respondent's compliance with the Court's TRO, ECF No. 30. During the call, the Petitioners indicated that they knew of multiple individuals who qualified as medically vulnerable under Paragraph 1 of the TRO (which references CDC criteria), but who were not included on the list of medically vulnerable inmates that Respondent used to select inmates for prioritized review for home confinement, as required by the TRO. Petitioners indicate that they believe that additional searches are necessary to identify additional medically vulnerable inmates they believe to be present at FCI Danbury who are not on the current list. The Respondent indicated a willingness to conduct a further search to identify additional medically vulnerable inmates, although the Respondent took the position that the Petitioners' proposed search parameters were overbroad. Given that additional searches are likely necessary to identify all of the medically vulnerable inmates at FCI Danbury for prioritized home confinement review (as required by Paragraphs 1, 2, 4, and 5 of the TRO), that further additional time will be necessary to review those inmates for home confinement, and that further inquiry is necessary to determine whether the Respondent has otherwise fully complied with the TRO, the Court finds that there is good cause under Rule 65(b)(2) to extend the temporary restraining order by 14 days, through June 9, 2020.
As discussed during today's call, the parties shall meet and confer regarding the most effective and efficient process for identifying as many of the remaining medically vulnerable inmates at FCI Danbury as possible. The parties should also discuss whether and how a person with medical expertise should be involved in the home confinement review process, in light of the requirement under the TRO that the Respondent assign substantial weight to an inmate's COVID-19 risk factors in the review process. The parties shall file a status report regarding their discussions by close of business on May 27. The Court will hold a telephonic status conference on May 28, 2020 at 11:00 a.m. to discuss these issues.
As further discussed, the Respondent shall also file a notice by close of business on May 27, under seal, indicating the release status of each of the 26 inmates that have been approved for home confinement.

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Signed by Judge Michael P. Shea on 5/26/2020. (Karpman, Michael) (Entered: 05/26/2020)
62 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 5/26/2020. Total Time: 1 hours and 47 minutes(Court Reporter J. Monette.) (Johnson, D.) (Entered: 05/27/2020)
Set Deadlines/Hearings: Joint Status Report due by 5/27/2020; Telephonic Status Conference set for 5/28/2020 11:00 AM before Judge Michael P. Shea (Johnson, D.) (Entered: 05/27/2020)
63 ORDER. The Respondent has filed ECF No. 58 under seal, but the Court did not order this document to be filed under seal, nor has the Warden filed a motion to seal. Unless the Warden files a motion to seal within 7 days setting forth the justification for sealing the document, the Court will order ECF No. 58 unsealed.
Signed by Judge Michael P. Shea on 5/27/2020. (Karpman, Michael) (Entered: 05/27/2020)
64 Joint STATUS REPORT by Kenneth Cassidy, Rejeanne Collier, D. Easter, Jackie Madore, Dianthe Martinez-Brooks. (Levine, Jonathan) (Entered: 05/27/2020)
65 NOTICE by D. Easter (Orticelli, Jillian) (Entered: 05/27/2020)
66 Sealed Document: Release status of inmates deemed eligible for home confinement by D. Easter re 65 Notice (Other) . (Orticelli, Jillian) (Entered: 05/27/2020)
67 NOTICE by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks Petitioners' Position in Advance of May 28, 2020 Status Conference Regarding Home Confinement Review Process (Attachments: # 1 Exhibit A)(Russell, Sarah) (Entered: 05/27/2020)
68 ORDER: The Court enters the attached order.
Signed by Judge Michael P. Shea on 5/28/2020. (Karpman, Michael) (Entered: 05/28/2020)
69 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 5/28/2020. Total Time: 1 hours and 36 minutes(Court Reporter J. Monette.) (Johnson, D.) (Entered: 05/29/2020)

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70 ORDER: The court enters the attached order with respect to certain inmates designated by the Warden for Residential Reentry Centers.
Signed by Judge Michael P. Shea on 5/29/2020. (Karpman, Michael) (Entered: 05/29/2020)
71 NOTICE of Appearance by Alexandra Harrington on behalf of Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe MartinezBrooks (Harrington, Alexandra) (Entered: 06/01/2020)
72 NOTICE by D. Easter Regarding Notice of Action and Release of Medical Records (McConaghy, Michelle) (Entered: 06/01/2020)
73 ORDER. The parties shall file a list of exhibits and witnesses by close of business on June 9, 2020. The parties shall submit, via email to Judge Shea's law clerk, electronic copies of all exhibits by close of business on June 9, 2020. The Court will hold a telephonic status conference to discuss the preliminary injunction hearing on June 10 at 1:00 p.m.
Signed by Judge Michael P. Shea on 6/2/2020. (Karpman, Michael) (Entered: 06/02/2020)
74 Joint STATUS REPORT by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks. (Orihuela, Marisol) (Entered: 06/02/2020)
Set Deadlines/Hearings: Telephonic Status Conference set for 6/10/2020 01:00 PM before Judge Michael P. Shea (Johnson, D.) (Entered: 06/03/2020)
75 ORDER. The parties shall submit a list of inmates they intend to call as witnesses, if any, by close of business on June 8, 2020. The Government is directed to facilitate making the necessary arrangements to allow the inmates to testify.
Signed by Judge Michael P. Shea on 6/4/2020. (Karpman, Michael) (Entered: 06/04/2020)
76 NOTICE of Voluntary Dismissal of Kenneth Cassidy by Kenneth Cassidy (Levine, Jonathan) (Entered: 06/04/2020)
77 NOTICE by D. Easter re: release status of inmates deemed eligible for home confinement (Orticelli, Jillian) (Entered: 06/04/2020)
78 Sealed Document: Declaration Exhibit A - List of Releasees by D. Easter re 77 Notice (Other) . (Orticelli, Jillian) (Entered: 06/04/2020)

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79 Joint STATUS REPORT by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks. (Orihuela, Marisol) (Entered: 06/04/2020)
80 ORDER: The parties' joint status report (ECF No. 79) indicates that they disagree about whether the Respondent may disclose inmates' Presentence Reports and Statements of Reasons to petitioners' counsel. The Court will hold a telephonic conference with counsel, today, at 5pm, to discuss this issue with the parties. The Court will circulate dial-in information shortly. Before the call, counsel should review the following authorities, and any others that may be pertinent: U.S. v. Charmer Indus., Inc., 711 F.2d 1164, 1176 (2d Cir. 1983); D. Conn. L. Crim. Rule 32(i),(k); U.S. Dept of Justice v. Julian, 486 U.S. 1 (1988) and its progeny, see, e.g., US v. Pugh, 69 Fed. Appx. 628 (4th Cir. 2003).
Signed by Judge Michael P. Shea on 6/5/2020. (Karpman, Michael) (Entered: 06/05/2020)
81 ORDER. For the reasons discussed on the call (and the Court may issue a short, further explanatory ruling in the future), the parties are ordered to meet and confer to develop a form of release that would allow inmates identified in the sample group to choose whether or not to disclose their presentence reports to Petitioners' counsel in this action. Under the Supreme Court's decision in U.S. Dept. of Justice v. Julian, 486 U.S. 1 (1988), it is clear that an inmate has the right under the FOIA to obtain his or her own presentence report, and thus also to authorize its disclosure to Petitioners' counsel--who seek to represent a class of inmates including the inmates in the sample--so that Petitioners' counsel can pursue the inmate's interests in this case. In light of the important private and public interests at issue in this case, and the apparent role of these presentence reports in the Respondent's decisionmaking process, Petitioners' have made a compelling demonstration that disclosure, in the manner described above, is necessary to meet the ends of justice. The release form should indicate that any presentence reports disclosed to Petitioners' counsel under these authorizations will be treated with strict confidentiality, and, more specifically, will be disclosed only to Petitioners' counsel, Petitioners' counsel's expert witness, Respondent's counsel, Respondent's counsel's expert witness, and the Court. Should inmates in the sample authorize such disclosure, the Respondents shall produce the presentence reports of such inmates to Petitioners' counsel.
Petitioners' request to obtain inmates' Statements of Reasons is denied for the reasons discussed on the call.
In addition, for the reasons discussed on the call, the Respondent shall

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produce to Petitioners' counsel the names of the inmates who were in the group of an estimated 159 inmates (referred to in the Warden's declaration, ECF No. 24-2 at 23) who were reviewed for home confinement between March 26 and May 5, 2020.
Further, as discussed, Petitioners shall file a Rule 21 motion to add parties by June 9, 2020.
Signed by Judge Michael P. Shea on 6/5/2020. (Karpman, Michael) (Entered: 06/05/2020)
82 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 6/5/2020. Total Time: 1 hours and 8 minutes(Court Reporter Julie Monette.) (Johnson, D.) (Entered: 06/08/2020)
83 MOTION for Sanctions AND MEMORANDUM IN SUPPORT by Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks.Responses due by 6/29/2020 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Orihuela, Marisol) (Entered: 06/08/2020)
84 OBJECTION re 83 MOTION for Sanctions AND MEMORANDUM IN SUPPORT filed by D. Easter. (Nelson, David) (Entered: 06/08/2020)
85 ORDER. The Court will hold a telephonic status conference on June 9, 2020 at 9:30 a.m.
Signed by Judge Michael P. Shea on 6/8/2020. (Karpman, Michael) (Entered: 06/08/2020)
86 ORDER. This case is referred to United States Magistrate Judge Thomas O. Farrish for a settlement conference.
Signed by Judge Michael P. Shea on 6/9/2020. (Karpman, Michael) (Entered: 06/09/2020)
87 ORDER. The preliminary injunction hearing scheduled for June 11 and 12 is RESCHEDULED for June 23 and 24. The pretrial deadlines are adjusted as follows: The parties shall file a list of exhibits and witnesses by close of business on June 18, 2020. The parties shall submit, via email to Judge Shea's law clerk, electronic copies of all exhibits by close of business on June 18, 2020. The Court will hold a telephonic status conference to discuss the preliminary injunction hearing on June 19 at 3:00 p.m.
Signed by Judge Michael P. Shea on 6/9/2020. (Karpman, Michael) (Entered: 06/09/2020)

06/09/2020
06/09/2020
06/09/2020 06/09/2020 06/09/2020 06/09/2020 06/09/2020 06/09/2020 06/09/2020 06/09/2020 06/09/2020 06/09/2020

88 SCHEDULING ORDER: Judge Farrish will conduct a settlement conference on Wednesday, June 10, 2020 at 10:00 a.m. The conference will be conducted through the Zoom videoconferencing application. Connection details will follow in an e-mailed Outlook calendar invitation to all appearing counsel. (Farrish, Thomas) (Entered: 06/09/2020)
89 ORDER. Petitioners may file the Rule 21 motion to add parties referred to in the Court's 81 order by June 12, 2020.
Signed by Judge Michael P. Shea on 6/9/2020. (Karpman, Michael) (Entered: 06/09/2020)
90 NOTICE by D. Easter Completed Re-Review Process by Home Confinement Committee (Attachments: # 1 Declaration)(McConaghy, Michelle) (Entered: 06/09/2020)
91 NOTICE by D. Easter of Review by Medical Clinician (Orticelli, Jillian) (Entered: 06/09/2020)
92 Sealed Document: Medical Record Review of FCI Danbury Inmates by D. Easter re 91 Notice (Other) . (Orticelli, Jillian) (Entered: 06/09/2020)
93 Sealed Document: Declaration re: Medical Record Review of FCI Danbury Inmates by D. Easter re 92 Sealed Document, 91 Notice (Other) . (Orticelli, Jillian) (Entered: 06/09/2020)
94 NOTICE by D. Easter re 92 Sealed Document, 91 Notice (Other) Declaration re: Medical Record Review of FCI Danbury Inmates (Orticelli, Jillian) (Entered: 06/09/2020)
95 NOTICE by D. Easter Update on inmates deemed eligible for residential reentry placement (Attachments: # 1 Declaration)(Nelson, David) (Entered: 06/09/2020)
96 Sealed Document: Inmate List by D. Easter re 95 Notice (Other) . (Nelson, David) (Entered: 06/09/2020)
97 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 6/9/2020. 8 minutes(Court Reporter Julie Monette.) (Johnson, D.) (Entered: 06/10/2020)
Set Deadlines/Hearings: Settlement Conference set for 6/10/2020 at 10:00 AM before Judge Thomas O. Farrish. (Wood, R.) (Entered: 06/10/2020)
98 ORDER REFERRING CASE to Magistrate Judge Thomas O. Farrish for Settlement Conference

06/09/2020

Signed by Judge Michael P. Shea on 6/9/20.(Johnson, D.) (Entered: 06/10/2020)
Set Deadlines/Hearings: Teleponic Status Conference set for 6/19/2020 03:00 PM before Judge Michael P. Shea (Johnson, D.) (Entered: 06/10/2020)

06/10/2020

99 Minute Entry for proceedings held before Judge Thomas O. Farrish: Settlement Conference held on 6/10/2020. Total Time: 8 hours and 0 minutes. The conference will continue on Thursday, June 11, 2020 at 10:00 a.m. (Farrish, Thomas) (Entered: 06/10/2020)

06/10/2020 100 SCHEDULING ORDER: A continued settlement conference will be held on Thursday, June 11, 2020 at 10:00 a.m. The conference will be conducted through the Zoom videoconferencing application. Connection information has been sent to all appearing counsel through a Microsoft Outlook calendar invitation. Signed by Judge Thomas O. Farrish on 06/10/2020. (Farrish, Thomas) (Entered: 06/10/2020)

06/11/2020 101 ORDER. As no motion to seal has been filed in response to the Court's 63 order, the Clerk is directed to unseal ECF No. 58 .

Signed by Judge Michael P. Shea on 6/11/2020. (Karpman, Michael) (Entered: 06/11/2020)
06/11/2020 102 Minute Entry for proceedings held before Judge Thomas O. Farrish: Continued settlement conference held on 6/11/2020. Total Time: 6 hours and 0 minutes. (Farrish, Thomas) (Entered: 06/11/2020)
06/11/2020 103 SCHEDULING ORDER: Judge Farrish will conduct a continued settlement conference on Tuesday, June 16, 2020 at 9:00 a.m. The conference will be conducted through the Zoom videoconferencing application. Instructions for connecting to the conference will follow in a Microsoft Outlook calendar invitation sent to all appearing counsel. Signed by Judge Thomas O. Farrish on 06/11/2020. (Farrish, Thomas) (Entered: 06/11/2020)

06/11/2020

Set Deadlines/Hearings: Settlement Conference set for 6/16/2020 at 9:00 AM before Judge Thomas O. Farrish. (Wood, R.) (Entered: 06/12/2020)

06/12/2020 104 ORDER. The telephonic status conference to discuss the preliminary injunction hearing, currently scheduled for June 19, 2020, is RESCHEDULED for Monday, June 22 at 10:00 a.m.

Signed by Judge Michael P. Shea on 6/12/2020. (Karpman, Michael) (Entered: 06/12/2020)

06/12/2020 105 NOTICE of Voluntary Dismissal of Dianthe Martinez-Brooks by Dianthe Martinez-Brooks (Levine, Jonathan) (Entered: 06/12/2020)
06/12/2020 106 NOTICE of Voluntary Dismissal of Rejeanne Collier by Rejeanne Collier (Levine, Jonathan) (Entered: 06/12/2020)

06/12/2020 107 MOTION for Leave to File to Add Parties pursuant to Fed.R.Civ.P. 21 by Kenneth Cassidy, Rejeanne Collier, Jackie Madore, Dianthe Martinez-Brooks. (Attachments: # 1 Exhibit Proposed Amendment to Complaint)(Levine, Jonathan) (Entered: 06/12/2020)

06/12/2020

Set Deadlines/Hearings: Telephonic Status Conference set for 6/22/2020 10:00 AM before Judge Michael P. Shea (Johnson, D.) (Entered: 06/15/2020)

06/15/2020 108 ORDER. The 107 motion for leave to add parties pursuant to Fed. R. Civ. P. 21 is GRANTED. Petitioners shall file an amended habeas petition incorporating the proposed amendment (ECF No. 107-1) by Tuesday, June 16, 2020. In light of the 76 , 105 , and 106 notices of voluntary dismissal, the claims of Petitioners Rejeanne Collier, Dianthe Martinez-Brooks, and Kenneth Cassidy are hereby DISMISSED.

Signed by Judge Michael P. Shea on 6/15/2020. (Karpman, Michael) (Entered: 06/15/2020)

06/15/2020

Set Deadlines: Amended Habeas Petition due by 6/16/2020 (Johnson, D.) (Entered: 06/15/2020)

06/16/2020 109 Minute Entry for proceedings held before Judge Thomas O. Farrish: Continued settlement conference held on 6/16/2020. Total Time: 8 hours and 15 minutes. (Farrish, Thomas) (Entered: 06/16/2020)

06/16/2020 110 SCHEDULING ORDER: Judge Farrish will conduct a continued settlement conference on Wednesday, June 17, 2020 at 1:00 p.m. Zoom videoconferencing invitations have been sent to appearing counsel. Signed by Judge Thomas O. Farrish on 06/16/2020.(Farrish, Thomas) (Entered: 06/16/2020)
06/16/2020 111 AMENDED COMPLAINT Petition for Writ of Habeas Corpus against D. Easter, filed by Jackie Madore, Amanda Eliza Cooper, James Whitted. (Attachments: # 1 Affidavit Jaimie Meyer, M.D., # 2 Affidavit Professor Judith Resnik, # 3 Affidavit Dianthe Martinez-Brooks, # 4 Affidavit Kenneth Cassidy, # 5 Affidavit Christina Korbe, # 6 Affidavit Marius (Marie) Mason, # 7 Affidavit Kimberly Hoisington, # 8 Affidavit Rafael Almonte, # 9 Affidavit Tamika Somerville, # 10 Affidavit Theresa Foreman, # 11 Affidavit Antrum Coston,

06/16/2020

# 12 Affidavit Shannon Benson, # 13 Affidavit Richard Johnson, # 14 Affidavit Ronald Harper)(Levine, Jonathan) (Entered: 06/16/2020)
Set Deadlines/Hearings: Settlement Conference set for 6/17/2020 at 1:00 PM before Judge Thomas O. Farrish. (Wood, R.) (Entered: 06/17/2020)

06/16/2020 114 EMERGENCY MOTION to Intervene by Andrew S. Mackey.Responses due by 7/7/2020 (Payton, R.) (Entered: 06/18/2020)

06/18/2020 112 Minute Entry for proceedings held before Judge Thomas O. Farrish: Continued settlement conference held on 6/18/2020. Total Time: 6 hours and 30 minutes. (Farrish, Thomas) (Entered: 06/18/2020)
06/18/2020 113 SCHEDULING ORDER: A continued settlement conference will be held via Zoom on Friday, June 19, 2020 at 9:00 a.m. Zoom connection information will be sent to all appearing counsel via Outlook calendar invitation. Signed by Judge Thomas O. Farrish on 06/18/2020. (Farrish, Thomas) (Entered: 06/18/2020)
06/19/2020 115 Minute Entry for proceedings held before Judge Thomas O. Farrish: Continued settlement conference held on 6/19/2020. Total Time: 5 hours and 0 minutes. (Farrish, Thomas) (Entered: 06/19/2020)
06/19/2020 116 ORDER. In light of the ongoing efforts to resolve this case via settlement, the preliminary injunction hearing scheduled for June 23 & 24 is RESCHEDULED for July 22 & 24. The pre-hearing deadlines are adjusted as follows: The parties shall file a list of exhibits and witnesses by July 17, 2020. The parties shall submit, via email to Judge Shea's law clerk, electronic copies of all exhibits by July 17, 2020. The Court will hold a telephonic status conference to discuss the preliminary injunction hearing on July 21 at 10:00 a.m. The telephonic status conference scheduled for June 22, 2020 is CANCELED.

Signed by Judge Michael P. Shea on 6/19/2020. (Karpman, Michael) (Entered: 06/19/2020)

06/19/2020 117 ORDER. The Court will hold a telephonic status conference Monday, June 22, 2020 at 10:00 a.m.

Signed by Judge Michael P. Shea on 6/19/2020. (Karpman, Michael) (Entered: 06/19/2020)

06/19/2020 118 NOTICE of Hearing on Motion re: 14 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction . ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION.

Motion Hearing set for 7/22/2020 and 7/24/20 @ 09:00 AM in Courtroom Two, 450 Main St., Hartford, CT before Judge Michael P. Shea. Signed by Judge Michael P. Shea on 6/19/20.(Johnson, D.) (Entered: 06/22/2020)

06/19/2020

Set Deadlines/Hearings: Telephonic Status Conference set for 7/21/2020 10:00 AM Hartford, CT before Judge Michael P. Shea (Johnson, D.) (Entered: 06/22/2020)

06/30/2020 119 Minute Entry for proceedings held before Judge Thomas O. Farrish: Continued settlement conference held via Zoom on 6/30/2020. Total Time: 2 hours and 0 minutes. (Farrish, Thomas) (Entered: 06/30/2020)

07/02/2020 120 Minute Entry for proceedings held before Judge Thomas O. Farrish: Continued settlement conference held on 7/2/2020. Total Time: 2 hours and 15 minutes. (Farrish, Thomas) (Entered: 07/02/2020)

07/06/2020 121 Minute Entry for proceedings held before Judge Thomas O. Farrish: Continued settlement conference held via Zoom on 7/6/2020. Total Time: 0 hours and 10 minutes. The conference identified issues for further discussion, and the parties are respectfully directed to report back to Judge Farrish on the status of those issues via videoconference at 4:00 p.m. EDT on Wednesday, July 8, 2020. (Farrish, Thomas) (Entered: 07/06/2020)

07/06/2020 122 SCHEDULING ORDER: A follow-up settlement conference is scheduled for 4:00 p.m. EDT on Wednesday, July 8, 2020 before Judge Farrish. The conference will be conducted via Zoom; a Zoom invitation has been sent to all appearing counsel. Signed by Judge Thomas O. Farrish on 07/06/2020. (Farrish, Thomas) (Entered: 07/06/2020)

07/06/2020

Set Deadlines/Hearings: Settlement Conference set for 7/8/2020 at 4:00 PM before Judge Thomas O. Farrish. (Wood, R.) (Entered: 07/07/2020)

07/08/2020 123 Minute Entry for proceedings held before Judge Thomas O. Farrish: Continued settlement conference held via Zoom videoconference on 7/8/2020. Total Time: 0 hours and 15 minutes. (Farrish, Thomas) (Entered: 07/08/2020)

07/15/2020 124 ORDER. In light of the parties request, the preliminary injunction hearing scheduled for July 22 and 24, 2020 is CANCELED. The Court will proceed with the July 21, 2020 telephonic status conference.

Signed by Judge Michael P. Shea on 7/15/2020. (Super, John) (Entered: 07/15/2020)

07/21/2020 125 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 7/21/2020. 7 minutes(Court Reporter Julie Monette.) (Johnson, D.) (Entered: 07/21/2020)

07/21/2020 126 ORDER. As discussed in today's telephonic status conference, Respondent shall file a joint status report by July 27, 2020 describing the status of settlement negotiations and any next steps required in this Court.

Signed by Judge Michael P. Shea on 7/21/2020. (Super, John) (Entered: 07/21/2020)

07/21/2020

Set Deadlines: Joint Status Report due by 7/27/2020 (Johnson, D.) (Entered: 07/22/2020)

07/23/2020 127 Reply to Non-Response re 114 EMERGENCY MOTION to Intervene filed by Andrew S. Mackey. (Payton, R.) (Entered: 07/24/2020)
07/27/2020 128 Joint STATUS REPORT by D. Easter. (McConaghy, Michelle) (Entered: 07/27/2020)
07/28/2020 129 ORDER. In light of the 128 joint status report, the Court will hold a telephonic status conference on July 29, 2020 at 1:00 p.m. to discuss the next steps in this case. The Court will distribute dial-in information prior to the call.

Signed by Judge Michael P. Shea on 7/28/2020. (Super, John) (Entered: 07/28/2020)
07/29/2020 130 NOTICE of Voluntary Dismissal of Jackie Madore by Jackie Madore (Levine, Jonathan) (Entered: 07/29/2020)

07/29/2020 131 NOTICE of Voluntary Dismissal of Amanda Cooper by Amanda Cooper (Levine, Jonathan) (Entered: 07/29/2020)

07/29/2020 132 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 7/29/2020. 10 minutes(Court Reporter Julie Monette.) (Johnson, D.) (Entered: 07/30/2020)
08/03/2020 133 MOTION to Certify Class for Settlement Purposes by James Whitted.Responses due by 8/24/2020 (Levine, Jonathan) (Entered: 08/03/2020)
08/03/2020 134 Memorandum in Support re 133 MOTION to Certify Class for Settlement Purposes filed by James Whitted. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Exhibit Declaration of Sarah F. Russell, # 3 Exhibit Declaration of Marisol Orihuela, # 4 Exhibit Declaration of

David Golub, # 5 Exhibit Declaration of Alexandra Harrington)(Levine, Jonathan) (Entered: 08/03/2020)
08/03/2020 135 MOTION for of Notice to Class Order by James Whitted. (Attachments: # 1 Exhibit Proposed Notice to Class)(Levine, Jonathan) (Entered: 08/03/2020)
08/04/2020 136 ORDER. The Court will hold a telephonic status conference on August 5, 2020 at 5:30 p.m. to discuss the 133 , 134 , and 135 motions. The Court will distribute dial-in information prior to the call.
Signed by Judge Michael P. Shea on 8/4/2020. (Super, John) (Entered: 08/04/2020)
08/05/2020 137 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 8/5/2020. 37 minutes(Court Reporter Julie Monette.) (Johnson, D.) (Entered: 08/06/2020)
08/06/2020 138 NOTICE by D. Easter of July 24, 2020 Side Letter (Attachments: # 1 July 24, 2020 Side Letter)(Putnam, Nathaniel) (Entered: 08/06/2020)
08/10/2020 139 NOTICE by James Whitted re 135 MOTION for of Notice to Class Order of Filing Revised Class Notice (Attachments: # 1 Exhibit A: proposed Notice (English), # 2 Exhibit B: proposed Notice (Spanish))(Levine, Jonathan) (Entered: 08/10/2020)
08/10/2020 140 OPPOSITION to Settlement filed by Andrew S. Mackey. (Peterson, M) (Entered: 08/11/2020)
08/11/2020 141 ORDER. Petitioner's 133 Motion to Certify Class and 135 Motion for Order of Notice are hereby GRANTED, as set forth in the attached order.
Signed by Judge Michael P. Shea on 8/11/2020. (Attachments: # 1 Exhibit, # 2 Exhibit) (Super, John) (Entered: 08/11/2020)
08/14/2020 142 NOTICE by D. Easter of Distribution of the Settlement Notice (Attachments: # 1 Declaration)(Putnam, Nathaniel) (Entered: 08/14/2020)
08/18/2020 143 OBJECTION to Settlement by Arturo Villareal (Peterson, M) (Entered: 08/19/2020)
08/20/2020 144 Letter from David Rancourt; Dated 08/16/2020 Re: Danbury Settlement (Peterson, M) (Entered: 08/21/2020)
08/20/2020 145 Letter from Melissa Reynolds; Dated 08/14/2020 Re: Danbury Settlement (Peterson, M) (Entered: 08/21/2020)

08/24/2020 146 EMERGENCY MOTION to Intervene by Bernice Mackey.Responses due by 9/14/2020 (Payton, R.) (Entered: 08/24/2020)
08/24/2020 147 OBJECTION to Settlement Agreement filed by Andrew Mackey. (Payton, R.) Modified on 8/26/2020 (Lewis, D). (Entered: 08/24/2020)
08/25/2020 148 MOTION to Intervene by Rhonda Fleming. Responses due by 9/15/2020 (Peterson, M) (Entered: 08/26/2020)
08/25/2020 149 MOTION for Relief Pursuant to Rule 71 by Rhonda Fleming. (Attachments: # 1 Exhibits, # 2 Envelope) (Peterson, M) (Entered: 08/26/2020)
08/25/2020 150 Amended Settlement Agreement Opposition filed by James Whitted. (Payton, R.) (Entered: 08/26/2020)
08/26/2020 151 OBJECTION to Settlement by Richard Emerich (Attachments: # 1 Envelope) (Peterson, M) (Entered: 08/26/2020)
08/26/2020 152 OBJECTION to Settlement by Thomas Wallace. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 08/26/2020)
08/26/2020 153 ORDER. The 148 motion to intervene and the 149 motion requesting relief under Fed. R. Civ. P. 71 are hereby DENIED. The movantintervenor is not incarcerated at Danbury FCI, is not a member of the provisionally certified class, and has no interest in a settlement between the Warden at FCI Danbury and a class of inmates at that facility. Further, as the Court has previously informed the movant-intervenor, it would not have jurisdiction over a 2241 petition filed by her or other inmates housed at BOP facilities not located within the District of Connecticut. For the same reasons, Rule 71 cannot apply to the movantintervenor, because the Court cannot enter an "order grant[ing] relief for a nonparty..." over whom it does not have jurisdiction. Fed. R. Civ. P. 71.
Signed by Judge Michael P. Shea on 8/25/2020. (Super, John) (Entered: 08/26/2020)
08/26/2020 154 ORDER. The Court has received letters, sent directly to chambers, from a number of inmates at FCI Danbury regarding their individual case for home confinement or other individual circumstances. These letters do not appear to be objections to the proposed settlement, and so the Court will not consider, respond to, or docket them. The Court will also not serve as a conduit between inmates at FCI Danbury and Petitioner's counsel, and will therefore not forward any such letters received to Petitioner's counsel. Potential or actual class members are advised to follow the instructions provided in the approved notice (ECF Nos. 141-1,

141-2), and shall not send letters directly to chambers. The Court will not respond to or take action on such correspondence. See ECF No. 141 at para. 12 ("Objectors should not send materials to the undersigned's chambers.") (emphasis in original).
Signed by Judge Michael P. Shea on 8/26/2020. (Super, John) (Entered: 08/26/2020)
08/27/2020 155 OBJECTION to Settlement by Jasonn Gonzales. (Peterson, M) (Entered: 08/28/2020)
08/27/2020 157 Second Admendment Settlement Agreement Opposition filed by Andrew S. Mackey. (Attachments: # 1 Envelopement)(Payton, R.) (Entered: 08/31/2020)
08/28/2020 156 OBJECTION to Settlement by David Roberts. (Peterson, M) (Entered: 08/28/2020)
08/31/2020 158 Supplement to Opposition to Settlement Agreement. filed by Andrew S. Mackey. (Payton, R.) (Entered: 09/01/2020)
08/31/2020 159 MOTION to Amend 146 EMERGENCY MOTION to Intervene by Bernice Mackey.Responses due by 9/21/2020 (Payton, R.) (Entered: 09/01/2020)
08/31/2020 160 Supplement to the reply of the non response to 146 EMERGENCY MOTION to Intervene filed by Andrew S. Mackey. (Payton, R.) (Entered: 09/01/2020)
09/01/2020 161 OBJECTION to Settlement by Justin May. (Peterson, M) (Entered: 09/02/2020)
09/01/2020 162 OBJECTION to Settlement by Manuel Lamont Mendes. (Peterson, M) (Entered: 09/02/2020)
09/01/2020 163 OBJECTION to Settlement by Rodorrio Kittrell. (Peterson, M) (Entered: 09/02/2020)
09/01/2020 164 Letter from Kyme Ashby; Dated August 20, 2020; Re: Danbury Settlement (Peterson, M) (Additional attachment(s) added on 9/3/2020: # 1 Envelope) (Peterson, M). (Entered: 09/03/2020)
09/01/2020 165 Letter from Amanda Hickman; Dated July 4, 2020; Re: Danbury Settlement (Peterson, M) (Entered: 09/03/2020)
09/01/2020 166 Letter from Judy Harmon; Dated August 20, 2020; Re: Danbury Settlement (Peterson, M) (Entered: 09/03/2020)

09/01/2020 167 Letter from Tiara Felix; Dated July 9, 2020; Re: Danbury Settlement (Peterson, M) (Entered: 09/03/2020)
09/01/2020 168 Letter from Louise Edwards; Dated July 7, 2020; Re: Danbury Settlement (Peterson, M) (Entered: 09/03/2020)
09/01/2020 169 Letter from Virginia Blanco; Dated July 7, 2020; Re: Danbury Settlement (Peterson, M) (Entered: 09/03/2020)
09/01/2020 170 Letter from Renee Tartaglione; Dated August 21, 2020; Re: Danbury Settlement (Peterson, M) (Entered: 09/03/2020)
09/01/2020 171 Letter from Wendy Hechtman; Dated August 23, 2020; Re: Danbury Settlement (Peterson, M) (Entered: 09/03/2020)
09/01/2020 172 Letter from Billie Johnson; Re: Danbury Settlement (Peterson, M) (Entered: 09/03/2020)
09/01/2020 203 MOTION to Intervene by Deric Twitty. Responses due by 9/22/2020 (Peterson, M) (Entered: 09/08/2020)
09/01/2020 204 OBJECTION to Settlement by Deric Twitty. (Peterson, M) (Entered: 09/08/2020)
09/03/2020 177 OBJECTION to Settlement by Jonathan Butler. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 178 MOTION for Extension of Time for 15 Day Extension for Danbury's Inmate Objection Letters by Andrew S. Mackey. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 179 OBJECTION to Settlement by Ruben Briones. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 180 OBJECTION to Settlement by Michael DePine. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 181 Letter from Edward DeSear; Dated August 30, 2020; Re: Danbury Settlement (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 182 OBJECTION to Settlement by Anthony Donato. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 183 Letter from Andreea Dumitru; Dated August 20, 2020; Re: Danbury Settlement (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)

09/03/2020 184 OBJECTION to Settlement by Juan Flores. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 185 OBJECTION to Settlement by Charles Fowle. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 186 Letter from Jasonn Gonzales; Dated August 24, 2020; Re: Danbury Settlement (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 187 Letter from Kimberly Hoisington; Dated August 27, 2020; Re: Danbury Settlement (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 188 OBJECTION to Settlement by Josh Lenchiek. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/04/2020)
09/03/2020 189 EXHIBIT A by Bernice Mackey re 159 MOTION to Amend/Correct 146 MOTION to Intervene. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/05/2020)
09/03/2020 190 OBJECTION to Settlement by Ramon Munroig. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/05/2020)
09/03/2020 191 Letter from Karen E. Norful; Dated August 31, 2020; Re: Danbury Settlement (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/05/2020)
09/03/2020 192 OBJECTION to Settlement by Anthony Parent. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/05/2020)
09/03/2020 193 Letter from Lisa Renze; Re: Danbury Settlement (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/05/2020)
09/03/2020 194 OBJECTION to Settlement by Juan Rodriguez. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/05/2020)
09/03/2020 195 OBJECTION to Settlement by Michael Smith. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/05/2020)
09/03/2020 196 Letter from Antonio Tillmon; Dated August 29, 2020; Re: Danbury Settlement (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/05/2020)
09/03/2020 197 OBJECTION to Settlement by Leonard Wood. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/05/2020)

09/03/2020 198 OBJECTION to Settlement by Mark Wolfe. (Peterson, M) (Entered: 09/08/2020)
09/03/2020 206 Letter from Jose Amaya Dated August 27, 2020 Re: Danbury Settlement (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/08/2020)
09/03/2020 207 Letter from Christopher Falls Dated September 1, 2020 Re: Danbury Settlement (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/08/2020)
09/03/2020 208 MOTION to Amend the Complaint (Responses due by 9/24/2020), MOTION for Class Certification (Responses due by 9/24/2020), MOTION to Appoint Counsel on the Amended Complaint by Thomas Wallace. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/08/2020)
09/03/2020 209 MOTION to Intervene by Jai-Fanon Jackson. Responses due by 9/24/2020 (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/08/2020)
09/03/2020 210 MOTION to Intervene by Jai-Fanon Jackson. Responses due by 9/24/2020 (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/08/2020)
09/03/2020 211 Letter from Frank Annette Dated September 2, 2020 Re: Danbury Settlement (Peterson, M) (Entered: 09/08/2020)
09/04/2020 173 NOTICE by James Whitted Regarding Objections to Settlement Agreement (Attachments: # 1 Exhibit Objections)(Russell, Sarah) (Entered: 09/04/2020)
09/04/2020 174 OBJECTION to Settlement Agreement filed by Josh Lenchick. (Near, Allison) (Entered: 09/04/2020)
09/04/2020 175 MOTION to Seal Exhibits to Objection to Settlement Agreement by Josh Lenchick. (Near, Allison) (Entered: 09/04/2020)
09/04/2020 176 Sealed Document: Exhibits to Objection to Settlement Agreement by Josh Lenchick re 175 MOTION to Seal Exhibits to Objection to Settlement Agreement . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Near, Allison) (Entered: 09/04/2020)
09/04/2020 199 OBJECTION to Settlement by Brian Isaacson. (Peterson, M) (Entered: 09/08/2020)
09/04/2020 200 OBJECTION to Settlement by Rolando J. Montoya. (Peterson, M) (Entered: 09/08/2020)

09/04/2020 201 OBJECTION to Settlement by Edward Clinton Jones, III. (Peterson, M) (Entered: 09/08/2020)
09/04/2020 202 OBJECTION to Settlement by Virginia Blanco. (Peterson, M) (Entered: 09/08/2020)
09/04/2020 212 OBJECTION to Settlement by Thomas S. Gioeli. (Peterson, M) (Entered: 09/08/2020)
09/04/2020 213 MOTION for a Copy of the Actual Settlement Agreement and All Exhibits, MOTION to Amend the Instant Objection (Responses due by 9/25/2020) by Thomas S. Gioeli. (Peterson, M) (Entered: 09/08/2020)
09/04/2020 214 OBJECTION to Settlement by John Matera. (Peterson, M) (Entered: 09/08/2020)
09/04/2020 215 MOTION for a Copy of the Actual Settlement Agreement and All Exhibits, MOTION to Amend the Instant Objection (Responses due by 9/25/2020) by John Matera. (Peterson, M) (Entered: 09/08/2020)
09/04/2020 216 OBJECTION to Settlement by Seferino Maltos. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 09/08/2020)
09/08/2020 205 ORDER. Mr. Mackey's 178 motion for extension is hereby DENIED because all such filings on behalf of the class must be made by class counsel. See Fed. R. Civ. P. 11(a) ("Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented."). In any case, the Court notes that Mr. Mackey's concern that class members have been unable to submit objections to the proposed settlement agreement appears unfounded, given the numerous objections docketed -- including both individual letters and motions as well as petitions purportedly signed by dozens of inmates.
The 175 motion to seal is hereby GRANTED.
Signed by Judge Michael P. Shea on 9/8/2020. (Super, John) (Entered: 09/08/2020)
09/11/2020 217 MOTION for Approval of Class Action Settlement Order by James Whitted. (Golub, David) (Entered: 09/11/2020)
09/11/2020 218 Memorandum in Support re 217 MOTION for Approval of Class Action Settlement Order filed by James Whitted. (Attachments: # 1 Affidavit Declaration of Professor Sarah Russell)(Golub, David) (Entered: 09/11/2020)

09/15/2020

NOTICE regarding hearing via Zoom: The Fairness hearing scheduled for September 18, 2020 at 10:00am will be conducted via Zoom. The video link is https://www.zoomgov.com/j/1601324755?pwd=TXU5RTViM2JhbUt5U WJIenFPOEFzdz09 and call in number is 1 646 828 7666.

Meeting ID: 160 132-4755

Meeting Password: 133103

Please note: Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, screenshots, streaming, and rebroadcasting in any form, of court proceedings. The Judicial Conference of the United States, which governs the practices of the federal courts, has prohibited it. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the court. (Johnson, D.) (Entered: 09/15/2020)

09/16/2020 219 NOTICE: In anticipation of the hearing scheduled for September 18, 2020, the Court wishes to alert the parties that it has reviewed the motion for approval (ECF No. 217) and accompanying papers, and has also reviewed the objections filed by inmates. While counsel for both sides should be prepared to discuss all aspects of the settlement agreement and all issues raised in the objections, the Court asks that the parties be prepared, in particular, to address the following: (1) The manner in which the home confinement review process has been functioning since the settlement agreement was signed; (2) the extent to which the Respondent is currently following each of the practices mentioned in the Side Letter; (3) how age, and especially inmates who are over 65 (or turn 65) but are not on List One or List Two (e.g., because they are recent arrivals or turned 65 after the lists were created), will be handled as a risk factor in the home confinement review contemplated by the settlement; (4) what the parties have in mind by "compel specific performance of this Agreement" (Settlement Agreement, parag. 23f.), given that, under the Agreement, the Court will prohibited from relying on its powers of contempt; (5) whether the Agreement would allow for reevaluation of an inmate previously denied home confinement should there be a change in the CDC's guidance concerning risk factors suggesting that the inmate's vulnerability is greater than previously understood; and (6) the objection filed by counsel for Joshua Lenchick -see ECF No. 174 and see in particular paras. 3 & 4. The Court will allow Mr. Lenchick's counsel to participate in the hearing as to topic #6. The parties should not interpret these topics as the Court's expression of a view about the fairness, reasonableness, or adequacy of the settlement.

Signed by Judge Michael P. Shea on 9/16/2020. (Super, John) (Entered: 09/16/2020)
09/17/2020 220 NOTICE: In addition to the topics identified in the previous notice (ECF No. 219), counsel should be prepared to discuss: (1) the manner in which the Petitioners and the Respondent ensured that the notice of settlement approved by the Court was disseminated to inmates, including whether and to what extent the full settlement agreement was made available for review by inmates; and (2) the current inmate census at each of the facilities within FCI Danbury and the percentages of full capacity these figures represent.
Signed by Judge Michael P. Shea on 9/17/2020. (Super, John) (Entered: 09/17/2020)
09/18/2020 221 ORDER. For the reasons stated during today's fairness hearing, petitioner's 217 motion for approval of the class action settlement is hereby GRANTED.
Signed by Judge Michael P. Shea on 9/18/2020. (Super, John) (Entered: 09/18/2020)
09/18/2020 223 Minute Entry for proceedings held before Judge Michael P. Shea: Motion Hearing held on 9/18/2020 re 217 MOTION for Approval of Class Action Settlement Order filed by James Whitted. Total Time: 1 hours and 39 minutes(Court Reporter Julie Monette.) (Attachments: # 1 appearances) (Johnson, D.) Modified on 10/2/2020 (Johnson, D.). (Entered: 09/21/2020)
09/21/2020 222 TRANSCRIPT of Proceedings: Type of Hearing: Fairness Hearing held on 9-18-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 10/12/2020. Redacted Transcript Deadline set for

10/22/2020. Release of Transcript Restriction set for 12/20/2020. (Monette, Julie) (Entered: 09/21/2020)
09/24/2020 224 MOTION for Attorney(s) Zal K. Shroff to be Admitted Pro Hac Vice (paid $200 PHV fee; receipt number ACTDC-6117396) by James Whitted. (Attachments: # 1 Affidavit)(Orihuela, Marisol) (Entered: 09/24/2020)
09/24/2020 225 EMERGENCY MOTION for Bail Pending Habeas Corpus Relief by Andrew S. Mackey.Responses due by 10/15/2020 (Payton, R.) (Entered: 09/25/2020)
09/28/2020 226 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 5-26-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 10/19/2020. Redacted Transcript Deadline set for 10/29/2020. Release of Transcript Restriction set for 12/27/2020. (Monette, Julie) (Entered: 09/28/2020)
09/28/2020 227 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 5-28-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 10/19/2020. Redacted Transcript Deadline set for

10/29/2020. Release of Transcript Restriction set for 12/27/2020. (Monette, Julie) (Entered: 09/28/2020)
09/28/2020 228 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 6-5-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 10/19/2020. Redacted Transcript Deadline set for 10/29/2020. Release of Transcript Restriction set for 12/27/2020. (Monette, Julie) (Entered: 09/28/2020)
09/28/2020 229 ORDER granting 224 Motion to Appear Pro Hac Vice Certificate of Good Standing due by 11/27/2020. Signed by Clerk on 09/28/2020. (Peterson, M) (Entered: 09/28/2020)
09/29/2020 232 SUPPLEMENT to 225 EMERGENCY MOTION for bail pending Habeas Corpus Relief filed by Andrew S. Mackey. (Attachments: # 1 Envelope)(Payton, R.) (Entered: 10/01/2020)
09/30/2020 230 ORDER: On September 18, 2020, the Court approved the class settlement following a fairness hearing. (ECF No. 221.) In light of the Court's approval of the settlement and its findings at the hearing, it disposes of the remaining pending motions in this case as follows: The motion for preliminary injunction (ECF No. 14) and motion for sanctions (ECF No. 83) are DENIED in light of the settlement and releases and the Court's findings at the fairness hearing. The emergency motion to intervene (and for other relief) by Andrew Mackey (ECF No. 114) is DENIED, because, to the extent Mr. Mackey is or will in the future become a member of the class, the Court already considered his interests at the fairness hearing, and to the extent he is not, he is not so situated that disposing of the action in his absence will impair or impede his ability to protect his interests; he also does not sufficiently share a common question of law or fact with the class members given that the Court made no determination in this case (even a preliminary determination by way of temporary restraining order) regarding the claims of non-class members. See Fed. R. Civ. P. 24, to the extent it

applies in a habeas proceeding. The interest of judicial economy would not be furthered by adjudicating his claims as part of this case. Mr. Mackey is free, of course, to bring his own independent action seeking whatever relief he deems appropriate. (Forms for self-represented parties are available on the Court's website.) The emergency motion to intervene and motion to amend emergency motion to intervene by Bernice Mackey (ECF Nos. 146 & 159) is DENIED for the same reasons, and because she likely lacks standing to join this habeas proceeding. The motion to intervene by Deric Twitty (ECF No. 203) is DENIED for the same reasons as those recited in the denial of Mr. Mackey's motion; as for Mr. Twitty's objection to the settlement, the Court considered it and similar objections before approving the settlement at the fairness hearing. The motion to amend the complaint (ECF No. 208) is DENIED because it was not filed by class counsel, who are the only authorized representatives of the class, the only recognized plaintiffs in this action. Further, to the extent Mr. Wallace is making objections to the settlement, the Court considered those and similar objections before approving the settlement at the fairness hearing; and to the extent he is not a member of the class, he remains free to bring his own action. The motions to intervene by Mr. Jackson (ECF Nos. 209 & 210) are DENIED for similar reasons, i.e., to the extent he is a member of the class, the Court considered his interests at the fairness hearing; to the extent he is not, he is free to bring his own action and he does not satisfy Rule 24 for the reasons set forth above with respect to Mr. Mackey; and to the extent he is stating objections to the settlement, the Court considered those and other similar objections before approving the settlement at the fairness hearing. The motions for a copy of the settlement agreement (ECF Nos. 213 & 215) are DENIED, as the Court was advised at the fairness hearing by both the defendant and class counsel that the settlement agreement had been made available to all inmates in accordance with this Court's previous orders. To the extent the motions also stated objections to the settlement, the Court considered them and others like them before approving the settlement at the fairness hearing. Finally, Mr. Mackey's emergency motion for bail (ECF No. 225) is DENIED for the reasons set forth above with respect to Mr. Mackey; again, Mr. Mackey is free to bring his own action at any time.
Signed by Judge Michael P. Shea on 9/30/2020. (Super, John) (Entered: 09/30/2020)
10/01/2020 231 NOTICE by D. Easter of Distribution of the Fairness Hearing Transcript (Putnam, Nathaniel) (Entered: 10/01/2020)
10/05/2020 233 NOTICE of Appearance by Zal Kotval Shroff on behalf of James Whitted (Shroff, Zal) (Entered: 10/05/2020)

10/05/2020 234 CERTIFICATE OF GOOD STANDING re 224 MOTION for Attorney(s) Zal K. Shroff to be Admitted Pro Hac Vice (paid $200 PHV fee; receipt number ACTDC-6117396) by James Whitted. (Shroff, Zal) (Entered: 10/05/2020)
10/05/2020 235 ORDER. In paragraph 21 of the Settlement Agreement, the parties agreed to "jointly move pursuant to Fed. R. Civ. P. 41(a)(2) to... dismiss the Petition...." (ECF No. 134-1 at 15). The Court directs the parties to confer and jointly file such a joint motion within 7 days of this order.
Signed by Judge Michael P. Shea on 10/5/2020. (Super, John) (Entered: 10/05/2020)
10/06/2020 236 MOTION for Leave to Appear as Law Student Interns Ariadne Ellsworth, Alexandra Gonzalez, Alexander Knocks, Phoenix RiceJohnson by James Whitted. (Orihuela, Marisol) (Entered: 10/06/2020)
10/07/2020 237 ORDER. The 236 motion for law student appearance is hereby GRANTED.
Signed by Judge Michael P. Shea on 10/7/2020. (Super, John) (Entered: 10/07/2020)
10/12/2020 238 Joint MOTION for of Dismissal Order by James Whitted. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Russell, Sarah) (Entered: 10/12/2020)
10/16/2020 239 MOTION for Reconsideration and Clarification re 230 Order on Motion to Intervene by Andrew S. Mackey. (Attachments: # 1 Envelope)(Payton, R.) (Entered: 10/16/2020)
10/19/2020 240 ORDER: The motion for reconsideration (ECF No. 239) is DENIED, as it is untimely and does not otherwise meet the strict requirements of Local Rule 7(c). In any event, the failure of a party to respond to a motion does not require the court to grant the motion, and it is not a sufficient basis to do so when the motion itself is not supported by the relevant legal principles. The motion otherwise fails for reasons previously set forth by the Court in Order No. 230. Again, nothing prevents Mr. Mackey from bringing his own lawsuit to the extent he is not a member of the class.
Signed by Judge Michael P. Shea on 10/19/2020. (Super, John) (Entered: 10/19/2020)
10/19/2020 241 ORDER. On September 18, 2020, this Court approved the terms of a multi-party habeas class action settlement agreement (the "Settlement," ECF No. 238-1) reached by the parties. (ECF No. 221.) The terms of the

Settlement were discussed at length by the Court during a fairness hearing that preceded the Settlement's approval. (ECF Nos. 222-223.) On October 12, 2020, the parties jointly moved for an order of dismissal. (ECF No. 238). In accordance with the terms of the Settlement, and pursuant to Fed. R. Civ. P. 41(a)(2), it is hereby ORDERED as follows:

1. The Court hereby reserves and retains jurisdiction over the parties and this case to the full extent necessary to enforce the terms of the Settlement pursuant to the terms set forth therein (ECF No. 238-1). See Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381 (1994); In re American Express Financial Advisors Securities Litigation, 672 F.3d 113, 134 (2d Cir. 2011). The Settlement Agreement (ECF No. 238-1) is hereby incorporated in this order by reference.

2. All claims in the Amended Petition released under the Settlement are dismissed with prejudice. All other claims in the Amended Petition are dismissed without prejudice, including all claims brought on behalf of individuals who are not part of the Settlement Class certified by this Court. Each party shall bear their own costs.

3. The Clerk is directed to enter Final Judgment dismissing this case subject to the Court's reserving and retaining exclusive jurisdiction to the full extent necessary to enforce the Settlement.

4. The Joint Motion for Dismissal Order (ECF No. 238) is GRANTED as set forth in this order.

Signed by Judge Michael P. Shea on 10/19/2020. (Super, John) (Entered: 10/19/2020)

10/20/2020 242 JUDGMENT filed and entered in accordance with the settlement agreement.

10/20/2020

For Appeal Forms please go to the following website: http://www.ctd.uscourts.gov/forms/all-forms/appeals_forms Signed by Clerk on 10/20/20.(Johnson, D.) (Entered: 10/20/2020)
JUDICIAL PROCEEDINGS SURVEY - FOR COUNSEL ONLY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take

this opportunity to participate, please click on this link:
https://ecf.ctd.uscourts.gov/cgi-bin/Dispatch.pl?survey (Johnson, D.) (Entered: 10/20/2020)
10/28/2020 243 NOTICE OF APPEAL as to 230 Order on Motion for Sanctions, Order on Motion to Intervene, Order on Motion to Amend/Correct, Order on Motion to Certify Clas, Order on Motion to Appoint Counsel, Order on Motion for Copy, Order on Motion for Miscellaneous Relief, Order on Motion for Preliminary Injunction, 242 Judgment by Andrew S. Mackey. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 10/30/2020)
10/30/2020 244 CLERK'S CERTIFICATE RE: INDEX AND RECORD ON APPEAL re: 243 Notice of Appeal,. The attached docket sheet is hereby certified as the entire Index/Record on Appeal in this matter and electronically sent to the Court of Appeals, with the exception of any manually filed documents as noted below. Robin D. Tabora, Clerk. Documents manually filed not included in this transmission: none (Peterson, M) (Entered: 10/30/2020)
11/03/2020 245 MOTION for Leave to Appear as Law Student Interns Alexis Farkash, Abigail Mason, George Morgan, Krista Notarfrancesco, Samantha Pernal, Grace Ronayne, Hannah Snow, Kathryn Ulicny, Kylee Verrill by James Whitted.Responses due by 11/24/2020 (Russell, Sarah) (Entered: 11/03/2020)
11/09/2020 246 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 5-14-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 11/30/2020. Redacted Transcript Deadline set for 12/10/2020. Release of Transcript Restriction set for 2/7/2021. (Monette, Julie) (Entered: 11/09/2020)
11/09/2020 247 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 6-9-2020 before Judge Michael P. Shea. Court

Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 11/30/2020. Redacted Transcript Deadline set for 12/10/2020. Release of Transcript Restriction set for 2/7/2021. (Monette, Julie) (Entered: 11/09/2020)
11/09/2020 248 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 7-21-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 11/30/2020. Redacted Transcript Deadline set for 12/10/2020. Release of Transcript Restriction set for 2/7/2021. (Monette, Julie) (Entered: 11/09/2020)
11/09/2020 249 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 7-29-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 11/30/2020. Redacted Transcript Deadline set for 12/10/2020. Release of Transcript Restriction set for 2/7/2021. (Monette, Julie) (Entered: 11/09/2020)
11/09/2020 250 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 8-5-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 11/30/2020. Redacted Transcript Deadline set for 12/10/2020. Release of Transcript Restriction set for 2/7/2021. (Monette, Julie) (Entered: 11/09/2020)
11/10/2020 251 ORDER. The 245 motion for law student appearance is DENIED without prejudice. The client consent page authorizes four law students, not listed in the motion for law student appearance, to appear under the supervision of Attorneys Orihuela and Shroff, rather than Attorney Russell as indicated in the motion.
Signed by Judge Michael P. Shea on 11/10/2020. (Super, John) (Entered: 11/10/2020)
11/10/2020 252 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-settlement conference held on 11/10/2020. Total Time: 1 hours and 10 minutes. (Farrish, Thomas) (Entered: 11/10/2020)
11/10/2020 253 MOTION for Leave to Appear as Law Student Interns Alexis Farkash, Abigail Mason, George Morgan, Krista Notarfrancesco, Samantha Pernal, Grace Ronayne, Hannah Snow, Kathryn Ulicny, Kylee Verrill (Corrected Motion) by James Whitted.Responses due by 12/1/2020 (Russell, Sarah) (Entered: 11/10/2020)
11/12/2020 254 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-settlement conference held on 11/12/2020. Total Time: 2 hours and 35 minutes. (Farrish, Thomas) (Entered: 11/12/2020)

11/12/2020 255 ORDER. The 253 motion for law student appearance is hereby GRANTED.

Signed by Judge Michael P. Shea on 11/12/2020. (Super, John) (Entered: 11/12/2020)
11/12/2020 256 MOTION Request for Judicial Review re: Breach of Settlement Agreement by Andrew S. Mackey.Responses due by 12/3/2020 (Attachments: # 1 Envelope)(Payton, R.) (Entered: 11/16/2020)

11/17/2020 257 ORDER. The Court received a motion for judicial review of an alleged breach of the settlement agreement from Andrew Mackey. (ECF No. 256). Mr. Mackey's 256 motion is hereby DENIED because all such filings on behalf of petitioner or the class must be made by class counsel. See Fed. R. Civ. P. 11(a) ("Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented."). It is not clear whether or not Mr. Mackey is a member of the class -- in which case he would not have standing to file this motion; but even if he is, the motion must be filed by class counsel. In any case, Mr. Mackey's motion does not comply with the settlement agreement's dispute resolution provision, which provides a multi-tiered approach to resolving any dispute prior to seeking judicial review. (See ECF No. 238-1 at 16-17).

Signed by Judge Michael P. Shea on 11/17/2020. (Super, John) (Entered: 11/17/2020)

11/17/2020 258 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-settlement conference held on 11/17/2020. Total Time: 0 hours and 50 minutes. (Farrish, Thomas) (Entered: 11/17/2020)

11/19/2020

USCA Appeal Fees received from Bernice Mackey: $ 505 receipt number CTXH00017491 re 243 Notice of Appeal, filed by Andrew S. Mackey (Peterson, M) (Entered: 11/20/2020)

11/19/2020 259 Acknowledgment and Notice of Appearance forwarded to the Court of Appeals. (Peterson, M) (Entered: 11/20/2020)

11/21/2020 260 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-settlement discussions with counsel held on 11/20/2020. Total Time: 0 hours and 30 minutes. (Farrish, Thomas) (Entered: 11/21/2020)

11/23/2020 261 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-settlement discussions held with counsel on 11/23/2020. Total Time: 0 hours and 15 minutes. (Farrish, Thomas) (Entered: 11/23/2020)

11/25/2020 262 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-settlement communications with counsel on 11/24 - 11/25/2020. Total Time: 0 hours and 15 minutes. (Farrish, Thomas) (Entered: 11/25/2020)
12/06/2020 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement by James Whitted.Responses due by 12/27/2020 (Attachments: # 1 Exhibit A (filed separately under seal), # 2 Exhibit B (filed separately under seal), # 3 Exhibit C (redacted version), # 4 Exhibit D, # 5 Exhibit E)(Russell, Sarah) (Entered: 12/06/2020)
12/06/2020 264 MOTION to Seal Exhibits A, B, and C to ECF 263 by James Whitted. (Russell, Sarah) (Entered: 12/06/2020)
12/06/2020 265 Sealed Document: Exhibit A by James Whitted re 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement . (Russell, Sarah) (Entered: 12/06/2020)
12/06/2020 266 Sealed Document: Exhibit B by James Whitted re 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement . (Russell, Sarah) (Entered: 12/06/2020)
12/06/2020 267 Sealed Document: Exhibit C-1 by James Whitted re 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement . (Russell, Sarah) (Entered: 12/06/2020)
12/07/2020 268 ORDER. Petitioners have filed a 263 motion to enforce the settlement agreement. The Government shall file its response no later than Thursday, December 10, 2020 at noon. The Court will hold a telephonic status conference on Thursday, December 10, 2020 at 5:00 p.m. to discuss the issues raised in the 263 motion. Chambers will distribute dial-in information prior to the call.
In addition, the 264 motion to seal is hereby GRANTED.
Signed by Judge Michael P. Shea on 12/7/2020. (Super, John) (Entered: 12/07/2020)

12/07/2020

Set Deadlines/Hearings:(Telephonic Status Conference set for 12/10/2020 at 05:00 PM, CT before Judge Michael P. Shea), Set Deadlines as to 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement .(Responses due by 12/10/2020, ) (Johnson, D.) (Entered: 12/08/2020)

12/08/2020 269 ORDER: The Government's response to the plaintiff's motion to enforce settlement agreement shall include, as attachments, (1) the "new BOP guidelines requiring certain language in BEMR regarding the risk of COVID-19 in the community" and (2) any policies or procedures (whether BOP-wide or specific to Danbury) governing the "specific security review" apparently being performed before "CIM" inmates approved for home confinement by the HCC may be released on home confinement. See ECF 263-3 at 4.

Signed by Judge Michael P. Shea on 12/8/2020. (Super, John) (Entered: 12/08/2020)

12/09/2020 270 Memorandum in Support re 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement Supplemental Memorandum filed by James Whitted. (Attachments: # 1 Exhibit A-1, # 2 Exhibit B-1, # 3 Exhibit C1)(Russell, Sarah) (Entered: 12/09/2020)

12/09/2020 271 MOTION to Seal Exhibits A-2, B-2, and C-2 to ECF 270 by James Whitted. (Russell, Sarah) (Entered: 12/09/2020)
12/09/2020 272 Sealed Document: Exhibit A-2 by James Whitted re 270 Memorandum in Support of Motion, 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement . (Russell, Sarah) (Entered: 12/09/2020)
12/09/2020 273 Sealed Document: Exhibit B-2 by James Whitted re 270 Memorandum in Support of Motion, 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement . (Russell, Sarah) (Entered: 12/09/2020)
12/09/2020 274 Sealed Document: Exhibit C-2 by James Whitted re 270 Memorandum in Support of Motion, 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement . (Russell, Sarah) (Entered: 12/09/2020)

12/10/2020 275 ORDER. The 271 motion to seal is hereby GRANTED.
Signed by Judge Michael P. Shea on 12/10/2020. (Super, John) (Entered: 12/10/2020)
12/10/2020 276 Entered in Error: RESPONSE re 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement filed by D. Easter. (Attachments: # 1 Exhibit Exhibit A: D. Easter Declaration, with Exh. A D, # 2 Exhibit Exhibit B: E. Anderson Declaration, with Exh. A E, # 3 Exhibit Exhibit C: Updated Table Containing Status of Release)(Orticelli, Jillian) Modified on 12/10/2020 (Peterson, M). (Entered: 12/10/2020)
12/10/2020 277 MOTION to Seal Respondent's Exhibit A, Exhibit A-B, Exhibit C by D. Easter. (Orticelli, Jillian) (Entered: 12/10/2020)
12/10/2020 278 RESPONSE re 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement filed by D. Easter. (Attachments: # 1 Exhibit Exhibit A: D. Easter Declaration, with Exh. A E, # 2 Exhibit Exhibit B: E. Anderson Declaration, with Exh. A E, # 3 Exhibit Exhibit C: Updated Table Containing Status of Release)(Orticelli, Jillian) (Entered: 12/10/2020)
12/10/2020 279 Memorandum in Support re 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement Second Supplemental Memorandum in Support of Motion filed by James Whitted. (Attachments: # 1 Exhibit A-1, # 2 Exhibit B-1, # 3 Exhibit C)(Russell, Sarah) (Entered: 12/10/2020)
12/10/2020 280 MOTION to Seal Respondent's Exhibit A, A-B, and C by D. Easter. (Orticelli, Jillian) (Entered: 12/10/2020)
12/10/2020 281 Sealed Document: Exhibit A: D. Easter Declaration, with Exhibits A - E by D. Easter re 280 MOTION to Seal Respondent's Exhibit A, A-B, and C, 279 Memorandum in Support of Motion, . (Orticelli, Jillian) (Entered: 12/10/2020)
12/10/2020 282 Sealed Document: Exhibit C: Updated Table by D. Easter re 278 Response, 280 MOTION to Seal Respondent's Exhibit A, A-B, and C . (Orticelli, Jillian) (Entered: 12/10/2020)
12/10/2020 283 MOTION to Seal Exhibits A-2 and B-2 to ECF 279 & 263 by James Whitted. (Russell, Sarah) (Entered: 12/10/2020)

12/10/2020 284 Sealed Document: Exhibit A-2 by James Whitted re 283 MOTION to Seal Exhibits A-2 and B-2 to ECF 279 & 263, 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement . (Russell, Sarah) (Entered: 12/10/2020)
12/10/2020 285 Sealed Document: Exhibit B-2 by James Whitted re 283 MOTION to Seal Exhibits A-2 and B-2 to ECF 279 & 263, 263 MOTION to Enforce Settlement Agreement and Require the Bureau of Prisons to Immediately Release Medically Vulnerable Class Members Who Have Been Approved for Home Confinement . (Russell, Sarah) (Entered: 12/10/2020)
12/10/2020 286 EXHIBIT Corrected Exhibit A-1 by James Whitted re 279 Memorandum in Support of Motion,. (Russell, Sarah) (Entered: 12/10/2020)
12/10/2020 287 EXHIBIT Corrected Exhibit B-1 by James Whitted re 279 Memorandum in Support of Motion,. (Russell, Sarah) (Entered: 12/10/2020)
12/10/2020 288 NOTICE: Following the telephonic hearing today and upon further reflection, the Court expects to issue an order on the docket tomorrow morning requiring that the 17 inmates discussed on the call be released to home confinement, either through home confinement authority or furlough authority, by 5:00 p.m. on Saturday, December 12, 2020. The Court will issue an opinion providing reasons for the order in the near future.
Signed by Judge Michael P. Shea on 12/10/2020. (Super, John) (Entered: 12/10/2020)
12/10/2020 290 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 12/10/2020. Total Time: 1 hours and 29 minutes(Court Reporter J. Monette.) (Johnson, D.) (Entered: 12/11/2020)
12/11/2020 289 ORDER. The 263 motion to enforce is granted to extent set forth in the attached order. The Court will issue an opinion explaining its reasoning in the near future. As set forth in the attached order, Respondent and the BOP shall transfer to home confinement (or furlough) each of the 17 inmates identified in ECF No. 282 by 5:00 p.m. on Saturday, December 12, 2020. Should any of these 17 inmates require additional time to arrange for safe transportation to the place of home confinement (or furlough), Respondent and the BOP shall be granted such additional time--but not later than Tuesday, December 15, 2020, at 5:00 p.m.--as is necessary to safely move that inmate to home confinement (or furlough). For the avoidance of doubt, a family member's or friend's picking up the

inmate at FCI Danbury in a vehicle constitutes safe transportation for purposes of this order.

Signed by Judge Michael P. Shea on 12/11/2020. (Super, John) (Entered: 12/11/2020)
12/11/2020 291 ORDER. The 280 and 283 motions to seal are hereby GRANTED. Because the 277 motion is identical to the 280 motion, the 277 motion to seal is DENIED as moot.

Signed by Judge Michael P. Shea on 12/11/2020. (Super, John) (Entered: 12/11/2020)

12/11/2020 292 ORDER. The Court will hold a telephonic status conference on December 14, 2020 at 12:30 p.m. The discussion will be limited to the two individuals identified by counsel as having some issue with release in accordance with the Court's order of specific performance (ECF No. 289) and whether and how that order can safely be effectuated (albeit with a delay) with respect to each of them. Chambers will distribute dial-in information prior to the call.

Signed by Judge Michael P. Shea on 12/11/2020. (Super, John) (Entered: 12/11/2020)

12/11/2020

Set Deadlines/Hearings: Telephonic Status Conference set for 12/14/2020 at 12:30 PM before Judge Michael P. Shea (Johnson, D.) (Entered: 12/14/2020)

12/14/2020 293 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 12/14/2020. 22 minutes(Court Reporter J. Monette.) (Johnson, D.) (Entered: 12/14/2020)

12/14/2020 294 ORDER: The Court has been advised that there has been a complication regarding the release of Ms. Hechtman, one of the 17 inmates who was previously approved by the BOP for home confinement and was the subject of the Courts December 11, 2020 order. Specifically, the Court was advised by Respondent's counsel that one of the persons at whose home Ms. Hechtman was proposing to stay has refused to host her. During a conference call with counsel today, Petitioner's counsel represented that, in light of the apparently increasing spread of COVID19 at FCI Danbury, she would be willing to host Ms. Hechtman in a safe space at her home in the New Haven area on a furlough (see 18 U.S.C. Sec. 3622) while another home confinement or other appropriate release plan is vetted and approved by the BOP. Accordingly, consistent with its December 11, 2020 order, to provide for specific performance of the Settlement Agreement, and for reasons that will be more fully explained

in a forthcoming opinion, the Court hereby orders the Respondent to release Ms. Hechtman to the care of Attorney Sarah Russell, as a 30-day furlough, beginning as soon as Attorney Russell or Sean McElligott arrives at FCI Danbury to pick up Ms. Hechtman. During the 30-day furlough, the Respondent shall make it a top priority to vet and approve an appropriate home or community confinement plan for Ms. Hechtman. In the event that Respondent is unable to do so, however, Ms. Hechtman shall return to FCI Danbury no later than the 30th day following her release. At all times, Ms. Hechtman's sentence will remain intact and she will remain subject to the authority of the Bureau of Prisons.
Signed by Judge Michael P. Shea on 12/14/2020. (Super, John) (Entered: 12/14/2020)
12/16/2020 295 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 12-10-2020 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 1/6/2021. Redacted Transcript Deadline set for 1/16/2021. Release of Transcript Restriction set for 3/16/2021. (Monette, Julie) (Entered: 12/16/2020)
12/17/2020 296 MOTION to Enforce Settlement Agreement by James Whitted.Responses due by 1/7/2021 (Attachments: # 1 Exhibit A, # 2 Exhibit B (filed separately under seal), # 3 Exhibit C, # 4 Exhibit D (filed separately under seal), # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G (filed separately under seal))(Orihuela, Marisol) (Entered: 12/17/2020)
12/17/2020 297 MOTION to Seal Exhibits B, D, and G to ECF 296 by James Whitted. (Orihuela, Marisol) (Entered: 12/18/2020)
12/18/2020 298 Sealed Document: Exhibit B by James Whitted re 296 MOTION to Enforce Settlement Agreement . (Orihuela, Marisol) (Entered: 12/18/2020)

12/18/2020 299 Sealed Document: Exhibit D by James Whitted re 296 MOTION to Enforce Settlement Agreement . (Orihuela, Marisol) (Entered: 12/18/2020)

12/18/2020 300 Sealed Document: Exhibit G by James Whitted re 296 MOTION to Enforce Settlement Agreement . (Orihuela, Marisol) (Entered: 12/18/2020)

12/18/2020 301 MOTION to Seal Ex. E to Motion to Enforce, ECF 296-5 by James Whitted. (Orihuela, Marisol) (Entered: 12/18/2020)

12/18/2020 302 EXHIBIT E (Redacted) by James Whitted re 296 MOTION to Enforce Settlement Agreement . (Orihuela, Marisol) (Entered: 12/18/2020)
12/21/2020 303 ORDER. Petitioner has filed a 296 motion to enforce the settlement agreement. The Government shall file its response no later than January 5, 2021 at noon. The Court will hold a telephonic oral argument regarding the issues raised in the 296 motion to enforce on January 7, 2021 at 3:00 p.m. Chambers will distribute dial-in information prior to the call.

Signed by Judge Michael P. Shea on 12/21/2020. (Super, John) (Entered: 12/21/2020)

12/21/2020

Set Deadlines/Hearings:( Telephonic Status Conference set for 1/7/2021 at 03:00 PM before Judge Michael P. Shea), Set Deadlines as to 296 MOTION to Enforce Settlement Agreement .(Responses due by 1/5/2021, ) (Johnson, D.) (Entered: 12/22/2020)

12/22/2020 304 NOTICE. For the reasons and to the extent stated in the attached memorandum, I granted Petitioner's motion to enforce the Settlement Agreement (ECF No. 263) and entered the December 11 and 14 orders. (ECF Nos. 289, 294).

Signed by Judge Michael P. Shea on 12/22/2020. (Super, John) (Entered: 12/22/2020)

12/28/2020 306 MOTION/LETTER - Transfer to home confinement by Michael Milchin. (Attachments: # 1 Envelope)(LaLone, L.) (Entered: 12/29/2020)

12/29/2020 305 ORDER. The telephonic oral argument scheduled for January 7, 2021 is RESCHEDULED for January 8, 2021 at noon.

Signed by Judge Michael P. Shea on 12/29/2020. (Super, John) (Entered: 12/29/2020)

12/29/2020

Set Deadlines/Hearings: Telephonic Oral Argument Status Conference set for 1/8/2021 12:00 PM before Judge Michael P. Shea (Johnson, D.) (Entered: 12/29/2020)

01/04/2021 307 Supplemental Memorandum in Support re 296 MOTION to Enforce Settlement Agreement filed by James Whitted. (Attachments: # 1 Exhibit H (filed separately under seal), # 2 Exhibit I (filed separately under seal), # 3 Exhibit J (filed separately under seal), # 4 Exhibit K (filed separately under seal), # 5 Exhibit L, # 6 Exhibit M (filed separately under seal), # 7 Exhibit N - Diaz Declaration, # 8 Exhibit O - Humphrey Declaration, # 9 Exhibit P - Torres Declaration, # 10 Exhibit Q - Junca Declaration, # 11 Exhibit R - Memo re Gas Leak, # 12 Exhibit S - Harrington Declaration)(Orihuela, Marisol) (Entered: 01/04/2021)

01/04/2021 308 MOTION to Seal Exhibits H, I, J, K, and M by James Whitted. (Orihuela, Marisol) (Entered: 01/04/2021)
01/04/2021 309 ORDER. The Court received a motion for transfer to home confinement from Michael Milchin. (ECF No. 306). Mr. Milchin's 306 motion is hereby DENIED because all such filings on behalf of petitioner or the class must be made by class counsel. See Fed. R. Civ. P. 11(a) ("Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented."). Thus, if Mr. Milchin is a member of the class, as he asserts, the motion must be filed by class counsel; if he is not a member of the class, then he would not have standing to file this motion. Mr. Milchin's motion also does not comply with the settlement agreement's dispute resolution provision, which provides a multi-tiered approach to resolving any dispute prior to seeking judicial review. (See ECF No. 238-1 at 16-17).

Signed by Judge Michael P. Shea on 1/4/2021. (Super, John) (Entered: 01/04/2021)
01/05/2021 310 RESPONSE re 296 MOTION to Enforce Settlement Agreement filed by D. Easter. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C (filed under seal))(Putnam, Nathaniel) (Entered: 01/05/2021)
01/05/2021 311 MOTION to Seal Exhibit C to Respondent's Response to ECF 296 by D. Easter. (Putnam, Nathaniel) (Entered: 01/05/2021)

01/05/2021 312 Sealed Document: Exhibit C to Respondent's Response to ECF 296 by D. Easter re 311 MOTION to Seal Exhibit C to Respondent's Response to ECF 296 . (Putnam, Nathaniel) (Entered: 01/05/2021)

01/05/2021

NOTICE regarding hearing via Zoom: The Oral Argument scheduled for January 8, 2021 at 12:00 noon will be conducted via Zoom. The video

link is https://www.zoomgov.com/j/1619562831?pwd=b3d0ejZvaFJ6MnFVRU dDQXFaeTRHZz09 and call in number is 16468287666.
Meeting ID: 161 956 2831
Meeting Password: 020743
Please note: Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, screenshots, streaming, and rebroadcasting in any form, of court proceedings. The Judicial Conference of the United States, which governs the practices of the federal courts, has prohibited it. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the court. (Johnson, D.) (Entered: 01/05/2021)
01/06/2021 334 ORDER Returning Submission as Deficient: Declaration returned to Joseph Ramos Signed by Judge Michael P. Shea on 01/06/2021. (Peterson, M) (Entered: 02/02/2021)
01/06/2021 335 ORDER Returning Submission as Deficient: Declaration returned to Joseph Heim Signed by Judge Michael P. Shea on 01/06/2021. (Peterson, M) (Entered: 02/02/2021)
01/06/2021 336 ORDER Returning Submission as Deficient: Declaration returned to Joseph Frederick Signed by Judge Michael P. Shea on 01/06/2021. (Peterson, M) (Entered: 02/02/2021)
01/06/2021 337 ORDER Returning Submission as Deficient: Declaration returned to Edward Jimenez Signed by Judge Michael P. Shea on 01/06/2021. (Peterson, M) (Entered: 02/02/2021)
01/06/2021 338 ORDER Returning Submission as Deficient: Declaration returned to Darryl Sanders Signed by Judge Michael P. Shea on 01/06/2021. (Peterson, M) (Entered: 02/02/2021)
01/06/2021 339 ORDER Returning Submission as Deficient: Declaration returned to Christopher William

Signed by Judge Michael P. Shea on 01/06/2021. (Peterson, M) (Entered: 02/02/2021)
01/06/2021 340 ORDER Returning Submission as Deficient: Declaration returned to Alex Levin Signed by Judge Michael P. Shea on 01/06/2021. (Peterson, M) (Entered: 02/02/2021)
01/06/2021 344 ORDER Returning Submission as Deficient: Motion returned to Frederick Banks Signed by Judge Michael P. Shea on 01/06/2021. (Peterson, M) (Entered: 02/05/2021)
01/07/2021 313 REPLY to Response to 296 MOTION to Enforce Settlement Agreement filed by James Whitted. (Attachments: # 1 Exhibit T -Declaration of David Golub, # 2 Exhibit U, # 3 Exhibit V, # 4 Exhibit W)(Russell, Sarah) (Entered: 01/07/2021)
01/08/2021 314 ORDER. As discussed during today's oral argument, the Government shall respond to the 307 supplemental memorandum as follows: (1) as to the issue of listing a date on the HCC worksheets (see ECF No. 307 at 29 para. g), the Government's response is due by January 15, 2021; (2) as to the issue of supervision and approval by the U.S Probation Office (see id. paras. h, i), and any other issues raised in the supplemental memorandum 307 to which the Government wishes to respond, the Government's response is due by January 25, 2021.
In addition, the 297 , 301 , and 311 motions to seal are hereby GRANTED. With respect to the 308 motion to seal, the Court notes that the exhibits intended to be sealed (Exhibits H, I, J, K, and M) do not appear to be on the docket. Class counsel is directed to file the exhibits that the 308 motion seeks to seal no later than January 11, 2021.
Signed by Judge Michael P. Shea on 1/8/2021. (Super, John) (Entered: 01/08/2021)
01/08/2021 315 ORDER. The Court will hold a telephonic status conference on January 12, 2021 at 10:00 a.m. The sole purpose of the call will be to discuss the issue of vaccine distribution among inmates at FCI Danbury and the willingness (or unwillingness) of certain inmates to be vaccinated. The Court will not entertain further discussion of any other issue at that time. Chambers will distribute dial-in information prior to the call.
Signed by Judge Michael P. Shea on 1/8/2021. (Super, John) (Entered: 01/08/2021)

01/08/2021 316 Minute Entry for proceedings held before Judge Michael P. Shea: Oral Argument held on 1/8/2021. Total Time: 2 hours and 2 minutes(Court Reporter J. Monette.) (Johnson, D.) (Entered: 01/11/2021)
01/12/2021 317 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 1/12/2021. 20 minutes(Court Reporter J. Monette.) (Johnson, D.) (Entered: 01/12/2021)
01/13/2021 318 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-settlement Conference held on 1/13/2021. Total Time: 1 hours and 30 minutes (Farrish, Thomas) (Entered: 01/13/2021)
01/13/2021 319 Sealed Document: Exhibit H by James Whitted re 308 MOTION to Seal Exhibits H, I, J, K, and M . (Russell, Sarah) (Entered: 01/13/2021)
01/13/2021 320 Sealed Document: Exhibit I by James Whitted re 308 MOTION to Seal Exhibits H, I, J, K, and M . (Russell, Sarah) (Entered: 01/13/2021)
01/13/2021 321 Sealed Document: Exhibit J by James Whitted re 308 MOTION to Seal Exhibits H, I, J, K, and M . (Russell, Sarah) (Entered: 01/13/2021)
01/13/2021 322 Sealed Document: Exhibit K by James Whitted re 308 MOTION to Seal Exhibits H, I, J, K, and M . (Russell, Sarah) (Entered: 01/13/2021)
01/13/2021 323 Sealed Document: Exhibit M by James Whitted re 308 MOTION to Seal Exhibits H, I, J, K, and M . (Russell, Sarah) (Entered: 01/13/2021)
01/14/2021 324 RESPONSE re 314 Order on Motion to Seal,,,,,,,,,,,,,, filed by D. Easter. (McConaghy, Michelle) (Entered: 01/14/2021)
01/14/2021 325 ORDER. The 308 motion to seal is hereby GRANTED.
Signed by Judge Michael P. Shea on 1/14/2021. (Super, John) (Entered: 01/14/2021)
01/14/2021 326 Memorandum in Support re 296 MOTION to Enforce Settlement Agreement Second Supplemental Memorandum in Support of Motion filed by James Whitted. (Attachments: # 1 Exhibit X (filed separately under seal), # 2 Exhibit Y -- Declaration of Dr. Jaimie Meyer, # 3 Exhibit Z -- BOP Vaccine Materials)(Russell, Sarah) (Entered: 01/14/2021)
01/14/2021 327 MOTION to Seal Exhibit X by James Whitted. (Russell, Sarah) (Entered: 01/14/2021)
01/14/2021 328 Sealed Document: Exhibit X by James Whitted re 327 MOTION to Seal Exhibit X . (Russell, Sarah) (Entered: 01/14/2021)

01/15/2021 329 ORDER. The 327 motion to seal is hereby GRANTED.
Signed by Judge Michael P. Shea on 1/15/2021. (Super, John) (Entered: 01/15/2021)
01/15/2021 330 TRANSCRIPT of Proceedings: Type of Hearing: Telephonic Status Conference held on 1-12-2021 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 2/5/2021. Redacted Transcript Deadline set for 2/15/2021. Release of Transcript Restriction set for 4/15/2021. (Monette, Julie) (Entered: 01/15/2021)
01/17/2021 331 TRANSCRIPT of Proceedings: Type of Hearing: Video Oral Argument held on 1-8-2021 before Judge Michael P. Shea. Court Reporter: Julie Monette. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 2/7/2021. Redacted Transcript Deadline set for 2/17/2021. Release of Transcript Restriction set for 4/17/2021. (Monette, Julie) (Entered: 01/17/2021)
01/19/2021 332 ORDER. For the reasons and to the extent stated in the attached ruling, the class's motion to enforce the settlement agreement (ECF No. 296) is GRANTED IN PART and DENIED IN PART, as follows:
(1) Within 14 days of this Order, the parties shall meet and confer to

identify specific class members whose cases warrant re-review under the terms of this Order and the Settlement Agreement; and
(2) Within 14 days of such identification, the BOP shall conduct a rereview of inmates identified under paragraph (1) for home confinement under the terms of the Settlement Agreement, except that, if for some good reason the BOP cannot meet that deadline, it shall inform class counsel of that good reason before expiration of the 14 days.
(3) To the extent the parties are unable to agree on the class members whose cases warrant re-review under paragraph (1), they shall utilize the mechanisms specified in the Settlement Agreement for resolving such disagreements.
Signed by Judge Michael P. Shea on 1/19/2021. (Super, John) (Entered: 01/19/2021)
01/19/2021 333 RESPONSE re 326 Memorandum in Support of Motion, filed by D. Easter. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Putnam, Nathaniel) (Entered: 01/19/2021)
01/19/2021 341 MOTION for Reconsideration by Frederick Banks. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 02/03/2021)
01/19/2021 342 NOTICE OF APPEAL re 344 by Frederick Banks. (Attachments: # 1 Envelope) (Peterson, M) Modified on 2/5/2021 (Peterson, M). (Entered: 02/03/2021)
02/03/2021 343 CLERK'S CERTIFICATE RE: INDEX AND RECORD ON APPEAL re: 342 Notice of Appeal. The attached docket sheet is hereby certified as the entire Index/Record on Appeal in this matter and electronically sent to the Court of Appeals, with the exception of any manually filed documents as noted below. Robin D. Tabora, Clerk. Documents manually filed not included in this transmission: none (Peterson, M) (Entered: 02/03/2021)
02/08/2021 346 MOTION to Compel by Robert Armstrong. Responses due by 3/1/2021 (Peterson, M) (Entered: 02/12/2021)
02/11/2021 345 ORDER. The 341 motion for reconsideration is hereby DENIED. Banks is currently an inmate at FCI Oakdale and previously filed a pro se motion to extend certain orders from Whitted v. Easter (3:20-cv-569MPS) to the inmates at FCI Oakdale, located in Louisiana. I returned Banks' submission to him with an order that provided as follows: "Generally, under § 2241, a prisoner challenging his confinement must file his petition in his district of confinement. Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004). Likewise, under the statute's jurisdiction of

confinement rule, district courts may only grant habeas relief against custodians 'within their respective jurisdictions.' 28 U.S.C § 2241(a). Because FCI Oakdale is not within the District of Connecticut, I do not have jurisdiction to grant habeas relief to you or other inmates housed at FCI Oakdale under section 2241." Banks' reliance, for jurisdictional purposes, on the transfer of former FCI Danbury inmates to FCI Oakdale is misplaced. Banks does not indicate that he was ever confined at FCI Danbury, and he provides no basis for the Court to exercise jurisdiction over his motion to join Whitted v. Easter, a case that has settled and was closed as of October 20, 2020.
Signed by Judge Michael P. Shea on 2/11/2021. (Super, John) (Entered: 02/11/2021)
02/23/2021 347 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post Settlement Conference held on 2/23/2021. Total Time: 2 hours (Wood, R.) (Entered: 02/23/2021)
03/01/2021 348 NOTICE of Appearance by Fiona Doherty on behalf of James Whitted (Doherty, Fiona) (Entered: 03/01/2021)
03/02/2021 349 NOTICE by D. Easter of Additional COVID-19 Vaccinations (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Putnam, Nathaniel) (Entered: 03/02/2021)
03/03/2021 350 NOTICE by James Whitted of Request for Status Conference (Attachments: # 1 Exhibit A (filed separately under seal), # 2 Exhibit B-1 (redacted version), # 3 Exhibit C-1 (redacted version), # 4 Exhibit D-1 (redacted version), # 5 Exhibit E-1 (redacted version), # 6 Exhibit F (filed separately under seal), # 7 Exhibit G (filed separately under seal))(Russell, Sarah) (Entered: 03/03/2021)
03/03/2021 351 MOTION to Seal Exhibits in Support of Request for Status Conference Exhibits A, B-2, C-2, D-2, E-2, F, G by James Whitted. (Russell, Sarah) (Entered: 03/03/2021)
03/03/2021 352 Sealed Document: Exhibit A by James Whitted re 351 MOTION to Seal Exhibits in Support of Request for Status Conference Exhibits A, B2, C-2, D-2, E-2, F, G, 350 Notice (Other), . (Russell, Sarah) (Entered: 03/03/2021)
03/03/2021 353 Sealed Document: Exhibit B-2 by James Whitted re 351 MOTION to Seal Exhibits in Support of Request for Status Conference Exhibits A, B2, C-2, D-2, E-2, F, G, 350 Notice (Other), . (Russell, Sarah) (Entered: 03/03/2021)

03/03/2021 354 Sealed Document: Exhibit C-2 by James Whitted re 351 MOTION to Seal Exhibits in Support of Request for Status Conference Exhibits A, B2, C-2, D-2, E-2, F, G, 350 Notice (Other), . (Russell, Sarah) (Entered: 03/03/2021)

03/03/2021 355 Sealed Document: Exhibit D-2 by James Whitted re 351 MOTION to Seal Exhibits in Support of Request for Status Conference Exhibits A, B2, C-2, D-2, E-2, F, G, 350 Notice (Other), . (Russell, Sarah) (Entered: 03/03/2021)

03/03/2021 356 Sealed Document: Exhibit E-2 by James Whitted re 351 MOTION to Seal Exhibits in Support of Request for Status Conference Exhibits A, B2, C-2, D-2, E-2, F, G, 350 Notice (Other), . (Russell, Sarah) (Entered: 03/03/2021)

03/03/2021 357 Sealed Document: Exhibit F by James Whitted re 351 MOTION to Seal Exhibits in Support of Request for Status Conference Exhibits A, B2, C-2, D-2, E-2, F, G, 350 Notice (Other), . (Russell, Sarah) (Entered: 03/03/2021)
03/03/2021 358 Sealed Document: Exhibit G by James Whitted re 351 MOTION to Seal Exhibits in Support of Request for Status Conference Exhibits A, B2, C-2, D-2, E-2, F, G, 350 Notice (Other), . (Russell, Sarah) (Entered: 03/03/2021)
03/04/2021 359 ORDER. In light of the 350 notice, the Court will hold a telephonic status conference on April 1, 2021 at 10:00 a.m. Should the Government wish to respond to any of the issues raised in the 350 notice, they may do so by filing a notice on the docket no later than March 24, 2021. Chambers will distribute dial-in information prior to the call. In addition, the 351 motion to seal is hereby GRANTED.

Signed by Judge Michael P. Shea on 3/4/2021. (Super, John) (Entered: 03/04/2021)

03/04/2021

Set Deadlines/Hearings: Telephonic Status Conference set for 4/1/2021 at 10:00 AM before Judge Michael P. Shea (Johnson, D.) (Entered: 03/05/2021)

03/12/2021 361 Supplement re: MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by Savino Braxton. Responses due by 4/2/2021. (Reis, Julia) (Entered: 03/16/2021)
03/15/2021 360 MOTION for Leave to Appear of Law Student Interns: Elizabeth Clarke, Poonam Daryani by James Whitted. (Orihuela, Marisol) (Entered: 03/15/2021)

03/16/2021 362 RESPONSE re 350 Notice (Other), Response to Class Counsel's Status Conference Request (ECF 350) filed by D. Easter. (Attachments: # 1 Exhibit A (filed under seal), # 2 Exhibit B)(Putnam, Nathaniel) (Entered: 03/16/2021)

03/16/2021 363 MOTION to Seal Exhibit A to Respondent's Response to ECF 350 by D. Easter. (Putnam, Nathaniel) (Entered: 03/16/2021)

03/16/2021 364 Sealed Document: Exhibit A to Respondent's Response to ECF 350 by D. Easter re 363 MOTION to Seal Exhibit A to Respondent's Response to ECF 350 . (Putnam, Nathaniel) (Entered: 03/16/2021)
03/19/2021 365 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-Settlement Conference held on 3/19/2021. Total Time: 1 hour and 20 minutes (Wood, R.) (Entered: 03/22/2021)
03/25/2021 366 ORDER. The telephonic status conference scheduled for April 1, 2021 is RESCHEDULED for April 9, 2021 at 11:00 a.m. and will be held as a Zoom hearing. The Zoom access information will be posted to the docket prior to the hearing.

Signed by Judge Michael P. Shea on 3/25/2021. (Super, John) (Entered: 03/25/2021)

03/25/2021

Set Deadlines/Hearings: Status Conference set for 4/9/2021 11:00 AM via Zoom before Judge Michael P. Shea (Johnson, D.) (Entered: 03/25/2021)

03/26/2021 367 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-Settlement Conference held on 3/26/2021. Total Time: 1 hour and 55 minutes (Wood, R.) (Entered: 03/26/2021)

03/29/2021 368 Motion to Appeal the Re-review Committee Decision by Savino Braxton. (Attachments: # 1 Envelope) (Peterson, M) (Entered: 03/30/2021)

03/30/2021 369 RESPONSE re 350 Notice (Other), 362 Response Reply to Response to Notice of Request for Status Conference filed by James Whitted. (Attachments: # 1 Exhibit G-1)(Russell, Sarah) (Entered: 03/30/2021)
03/30/2021 370 MOTION to Seal Exhibit F-2 by James Whitted. (Russell, Sarah) (Entered: 03/30/2021)
03/30/2021 371 MOTION to Seal (Corrected Motion) Exhibit G-2 by James Whitted. (Russell, Sarah) (Entered: 03/30/2021)

03/30/2021 372 Sealed Document: Exhibit G-2 by James Whitted re 371 MOTION to Seal (Corrected Motion) Exhibit G-2, 369 Response . (Russell, Sarah) (Entered: 03/30/2021)

03/31/2021 373 ORDER. The Court enters the following orders:

The Zoom hearing scheduled for April 9, 2021 at 11:00 a.m. is RESCHEDULED for April 9, 2021 at noon.

The 363 and 371 motions to seal are hereby GRANTED. The 370 motion to seal, filed in error, is DENIED as moot.

The 360 motion for law student appearance is hereby GRANTED.

The pro se motions filed by Robert Armstrong (ECF No. 346) and Savino Braxton (ECF Nos. 361, 368) are DENIED because all such filings on behalf of petitioner or the class must be made by class counsel. See Fed. R. Civ. P. 11(a) ("Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented."). Thus, if Armstrong and Braxton are members of the class, the motion must be filed by class counsel; if they are not members of the class, then they would not have standing to file this motion. Armstrong and Braxton's motions also do not comply with the settlement agreement's dispute resolution provision, which provides a multi-tiered approach to resolving any dispute prior to seeking judicial review. (See ECF No. 238-1 at 1617).

Signed by Judge Michael P. Shea on 3/31/2021. (Super, John) (Entered: 03/31/2021)

03/31/2021

Set Hearings: Status Conference set via Zoom for 4/9/2021 at 12:00 PM before Judge Michael P. Shea (Johnson, D.) (Entered: 04/01/2021)

04/01/2021 374 Minute Entry for proceedings held before Judge Thomas O. Farrish: Post-Settlement Conference held on 4/1/2021. Total Time: 2 hours (Wood, R.) (Entered: 04/01/2021)

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 Case 3:20-cv-00569-MPS Document 14 Filed 04/30/20 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS, REJEANNE COLUER, JACKIE MADORE; and KENNEfH CASSIDY, individually, and on behalf of al1 others similarly situated,

Petitioners,

V.

Civ. No. 3:20 cv 00569 (MPS)

D . EASTER, Warden of Federal Correctional Institution at Danbury, and MICHAEL CARYAJAL, Director of the Federal Bureau of Prisons, in their official capacities

Respondents.

APRIL 30, 2020

PETITIONERS' EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Petitioners Dianthe Martinez-Brooks, Rejeanne Collier, Jackie Madore and Kenneth
Cassidy, through counsel, respectfully move the Court, pursuant to Fed.R.Civ.P. 65 to enter an
Temporary Restraining Order and Preliminary Injunction preliminarily certifying petitioners'
proposed Class and Subclass and ordering Respondents to:
(1) enlarge to home confinement all women currently housed in the satellite camp at FCI Danbury;
(2) enlarge to home confinement all members of the medically vulnerable Subclass; and
(3) implement appropriate measures to maximize social distancing and improve hygiene for the prisoners who remain at FCI Danbury for the duration of the COVID-19 pandemic and/or to transfer such Class members to other BOP facilities that can provide such medically safe environment.

Case 3:20-cv-00569-MPS Document 14 Filed 04/30/20 Page 2 of 3

Petitioners submit the annexed Memorandum of Law in Support of this Emergency

Motion for Temporary Restraining Order and Preliminary Injunction.

Dated April 30, 2020

Respectfully Submitted,

*Application for Admission Pending

Is/ DavidS. Golub DavidS. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver Golub & Teitell LLP 184 Atlantic Street Stamford, Cf 06901 Phone: (203) 325-4491 Email: dgolub @sgtlaw.com
jlevine@sgtlaw .com
Sarah French Russell , ct26604 Tessa Bialek ct30582 Legal Clinic , Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Phone: (203) 582-5258 Email: sarah .russell @quinnipiac.edu
tessa.bialek@quinnpiac.edu
Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 Email :marisol.orihuela@ylsclinics.org
Alexandra Harrington* 127 Wall Street New Haven, CT 06511 Phone:203-436-3532 alexandra.harrington@yale .edu
Counsel for the Petitioners Dianthe MartinezBrooks, Rejeanne Collier, Jackie Madore, and Kenneth Cassidy

Case 3:20-cv-00569-MPS Document 14 Filed 04/30/20 Page 3 of 3
CERTIFICATION OF SERVICE I hereby certify that on April 30 , 2020, a copy of the foregoing Emergency Motion for Temporary Restraining Order and Preliminary Injunction was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's CM/ECF system . A copy of this Motion has also been served electronically this day on John B. Hughes and Michelle McConaghy of the Office of the United States Attorney for the District of Connecticut.
Is/ DavidS. Golub DAVID S. GOLUB

Case 3:20-cv-00569-MPS Document 15 Filed 04/30/20 Page 1 of 51

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS, REJEANNE COLLIER, JACKIE MADORE, and KENNETH CASSIDY, individually, and on behalf of all others similarly situated,

Petitioners,

V.
D. EASTER, Warden of Federal Correctional Institution at Danbury, and MICHAEL CARYAJAL, Director of the Federal Bureau of Prisons, in their official capaci ties

Civ. No. 3:20 cv 00569 (MPS)

Respondents.

APRIL 30, 2020

PETITIONERS' MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Case 3:20-cv-00569-MPS Document 15 Filed 04/30/20 Page 2 of 51
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. There is a Dangerous and Uncontrolled COVID-19 Outbreak at FCI Danbury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Federal Satellite Low facility (“FSL”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Women’s Minimum Security Camp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Men’s Prison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
II. FCI Danbury Has Not Implemented Essential Measures to Protect Prisoners and Mitigate the Spread of COVID-19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Correctional facilities are incubators and amplifiers for infectious diseases like COVID-19, and the CDC has issued guidance for managing the virus in correctional facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. FCI Danbury has Failed to Implement the CDC’s Guidance . . . . . . . . . . . . . . . 14
C. Public health officials, Congress and the Department of Justice have recognized that prisons such as FCI Danbury need to de-densify to protect the health and safety of prisoners and staff . . . . . . . . . . . . . . . . . . . . . . . 15
D. FCI Danbury’s failure to implement the CDC’s Guidance and de-densify its facilities places incarcerated women and men at grave risk . . . . . 18
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
I. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
II. Petitioners and the Class and Subclass Face Irreparable Harm If They Continue to be Incarcerated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
III. Petitioners, the Class and Subclass Are Substantially Likely to Succeed on the Merits of Their Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Case 3:20-cv-00569-MPS Document 15 Filed 04/30/20 Page 3 of 51 A. The Class and Subclass are Likely to Succeed on their Claim that
Respondents Have Violated the Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . 28 B. This Action is Properly Brought Pursuant to Section 2241 . . . . . . . . . . . . . . . . . 33 IV. The Equities and Public Interest Weigh in Favor of the Relief Petitioners Seek . . . . . . 34 V. This Court Has the Power to Grant a Preliminary Injunction and Issue a Provisional Order of Enlargement of Custody While This Habeas Action Is Pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 A. The Enlargement Power of the Federal District Courts . . . . . . . . . . . . . . . . . . . . 36 B. Legal Standard for Enlargement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ii

Case 3:20-cv-00569-MPS Document 15 Filed 04/30/20 Page 4 of 51

TABLE OF AUTHORITIES

Cases

Page

AIM Int’l Trading LLC v. Valcucine SpA., 188 F. Supp. 2d 384 (S.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Andino v. Fischer, 555 F. Supp. 2d 418 (S.D.N.Y. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Austin v. Pa. Dep’t of Corr., Civ. A. No. 90–7497, 1992 WL 277511 (E.D. Pa. Sept. 29, 1992) . . . . . . . . . . . . . . . . . 27

Barbecho v. Decker, No. 20-CV-2821 (AJN), 2020 WL 1876328 (S.D.N.Y. Apr. 15, 2020) . . . . . . . . . . . . . 39

Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) . . . . . . . . . . . . . . . . . . 28

Basank v. Decker, No. 20 Civ. 2518 (AT), 2020 WL 1953827 (S.D.N.Y. Apr. 23, 2020) . . . . . . . . . . . . . . 39

Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Boone v. Brown, No. Civ. 05–750(AET), 2005 WL 2006997 (D.N.J. Aug. 22, 2005) . . . . . . . . . . . . . . . 27

Brown v. Plata, 563 U.S. 493 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Castillo v. Barr, No. CV 20-00605 (C.D. Cal. Mar. 27, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Chance v. Armstrong, 143 F.3d 698 (2d Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Citigroup Glob. Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Coronel v. Decker, 20-cv-2472 (AJN), 2020 WL 1487274 (S.D.N.Y March 27, 2020) . . . . . . . . . . 28, 35, 39

iii

Case 3:20-cv-00569-MPS Document 15 Filed 04/30/20 Page 5 of 51
Conn. Dep’t Envtl. Prot. v. OSHA, 356 F.3d 226 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
DeShaney v. Winnebago County Dep’t Soc. Servs., 489 U.S. 189 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Estelle v. Gamble, 429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 34
Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Farmer v. Brennan, 511 U.S. 825 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30
Forbes v. Edgar, 112 F.3d 262 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Gaymon v. Whidden, No. 3:11-cv-805, 2011 WL 2078632 (D. Conn. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Greene v. Bowles, 361 F.3d 290 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Harris v. Bd. of Supervisors, Los Angeles Cty., 366 F.3d 754 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Harrison v. Barkley, 219 F.3d 132 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Hathaway v. Coughlin, 37 F.3d 63 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31
Helling v. McKinney, 509 U.S. 25 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29, 30
Hernandez v. Decker, 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
iv

Case 3:20-cv-00569-MPS Document 15 Filed 04/30/20 Page 6 of 51
Hope v. Pelzer, 536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Hutto v. Finney, 437 U.S. 678 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70 (2d Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 29
Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
L.V.M. v. Lloyd, 318 F. Supp. 3d 601 (S.D.N.Y. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. New York Shipping Ass’n, Inc., 965 F.2d 1224 (2d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Maxum Petroleum, Inc. v. Hiatt, No. 3:16-CV-01615 (VLB), 2016 WL 5496283 (D. Conn. 2016) . . . . . . . . . . . . . . . . . 24
McDonald v. Hardy, 821 F.3d 882 (7th Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Ostrer v. United States, 584 F.2d 594 (2d Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Planned Parenthood of New York City v. U.S. Dep’t of Health & Human Servs., 337 F. Supp. 3d 308 (S.D.N.Y. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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Powers v. Snyder, 484 F.3d 929 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Roba v. United States, 604 F.2d 215 (2d Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Rado v. Meachum, 699 F. Supp. 25 (D. Conn. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Rouster v. Cty. of Saginaw, 749 F.3d 437 (6th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Ruffin v. Deperio, 97 F. Supp. 2d 346 (W.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Sajous v. Decker, 2018 WL 2357266 (S.D.N.Y. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Savino v. Souza, 2020 WL 1703844 (D.Mass. Apr. 8, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Stagliano v. Herkimer Cent. Sch. Dist., 151 F. Supp. 3d 264 (N.D.N.Y. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Thompson v. Choinski, 525 F.3d 205 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
United States v. Basciano, 369 F. Supp. 2d 344 (E.D.N.Y. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
United States v. Collier, 6:12-cr-06003-CJS (N.D.N.Y. Apr. 16, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Nkanga, No. 18-CR-713 (JMF), 2020 WL 1695417 (S.D.N.Y. Apr. 7, 2020) . . . . . . . . . . . . . . . 39
United States v. Rodriguez, No. 2:03-cr-0271, 2020 WL 1627331 (E.D. Pa., April 1, 2020) . . . . . . . . . . . . . . . . . . . 31
United States v. Stahl, No. 18-cr-694(RA) (S.D.N.Y. Apr. 21, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
vi

Case 3:20-cv-00569-MPS Document 15 Filed 04/30/20 Page 8 of 51 Wilson v. Williams,
No. 20-cv-00794, 2020 WL 1940882 (N.D. Ohio, April 22, 2020) . . . . . . . . . . 36, 37, 39 Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 STATUTES: 28 U.S.C. § 2241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34 28 U.S.C. § 2243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 28 U.S.C. §2255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 OTHER AUTHORITIES: 5 J. Moore et al., Moore's Federal Practice § 23.50, p. 23–397 (2d ed.1990) . . . . . . . . . . . . . . . 2 4 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 24:83 (4th ed. 2002) . . . . . . 2
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INTRODUCTION Respondents are currently confining over 1,000 people in conditions within FCI Danbury that threaten their lives. Although, as set forth in detail in the Petition for Writ of Habeas Corpus, there is ample evidence to indicate that FCI Danbury has been avoiding testing prisoners who present with symptoms of COVID-19 infection, Bureau of Prisons (“BOP”) statistics reported earlier this month reflect that the prison had among the highest incidence of COVID-19 among both prisoners and staff anywhere in the BOP system. Those reported statistics also show that, far from containing the initial outbreak, Respondents’ management of the prison has allowed a second wave of infections to sweep through the facility. One prisoner has already died and several others have recently been transported to the hospital on an emergency basis. Quite simply, notwithstanding that Attorney General William Barr directed the BOP over a month ago to give priority to FCI Danbury in identifying medically vulnerable prisoners who could serve their sentences in home confinement as a means to address the infection in the facility, Respondents have failed to take sufficient and appropriate measures to halt the further spread of this deadly virus, putting the lives and health of prisoners and staff at FCI Danbury, and countless others in the community, at risk. And, the inadequate isolation practices that Respondents have implemented have resulted in grossly unhygienic conditions with women made to sleep on blankets on the floor in rooms never designed to serve for housing with patently insufficient bathroom and shower facilities. The Eighth Amendment to the United States Constitution forbids this state of affairs. Nor does it serve any necessary penal purpose. Approximately half of the women imprisoned at FCI Danbury are in the women’s camp, which is a minimum security facility—the very lowest security level in the federal prison system. Consistent with Attorney General Barr’s month-old directive, the women in the camp can be expeditiously released (“enlarged”) to home confinement which will, in turn, permit substantial social distancing improvements throughout the prison.
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Petitioners seek to represent the class1 of all individuals who are currently or will in the future be imprisoned at FCI Danbury during the pendency of the COVID-19 pandemic as well as a subclass of prisoners who are aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19. Because of the grave risk to health and life at stake, Petitioners now bring this Emergency Motion for Temporary Restraining Order and Preliminary Injunction seeking Orders requiring Respondents immediately to: (1) enlarge to home confinement all women currently housed in the camp; (2) enlarge to home confinement all members of the medically vulnerable Subclass; and (3) implement appropriate measures to maximize social distancing and improve hygiene for the prisoners who remain at FCI Danbury for the duration of the COVID-19 pandemic.
As the supporting declarations attached to the Petition and to this Memorandum make clear, this is a matter of life and death. Each hour that passes risks the health and lives of Petitioners and the other prisoners and staff at FCI Danbury, as well as members of the community with whom FCI Danbury staff necessarily interact.
FACTUAL BACKGROUND I. There is a Dangerous and Uncontrolled COVID-19 Outbreak at FCI Danbury
FCI Danbury consists of three facilities. The largest is a low-security main complex currently housing 719 men (“men’s facility”). A second unit is an adjacent low-security satellite prison housing approximately 164 women (“FSL”). The third is a minimum-security satellite facility (called the “camp”) which currently houses approximately 142 women.2 All of the women live in crowded, dormitory-style housing, as do the vast majority of the men. With the current population levels in the three facilities, and the particular architecture of these structures, it is
1 Although Petitioners have not yet moved for class certification, this Court need not rule on Plaintiffs’ class certification motion or formally certify a class in order to issue the requested emergency relief. See, e.g., Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23397 (2d ed.1990) (“Prior to the Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class suit.”).
2 Federal Bureau of Prisons, FCI Danbury, https://www.bop.gov/locations/institutions/dan/ 2

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impossible to keep people safe from COVID-19, which is raging through the FCI complex. Yet the unique structure of FCI Danbury also presents an obvious first step for managing the crisis. The minimum security women’s camp houses women who present the very lowest risk of any prisoners in the federal system. These women should be moved immediately to home confinement for the remainder of their sentences. Immediately clearing out the camp, and moving medically vulnerable people from the FSL and men’s facility to home confinement, would create more space to address the safety of the prisoners who remain.
In late March, a woman in the FSL and a man in the men’s facility tested positive for COVID-19. The woman had been exhibiting symptoms for weeks but was not tested until she was brought to the hospital. Ex. G, Declaration of Kimberly Hoisington (“Hoisington Dec.”) ¶¶ 5, 9.3 The man had symptoms for several days before he was able to access medical care at the prison and be tested. Ex. M, Declaration of Richard Johnson (“Johnson Dec.”) ¶¶ 5, 6. Soon after, two more men in his unit tested positive, and several men in another unit had positive tests. Ex. H, Declaration of Rafael Almonte (“Almonte Dec.”) ¶ 15; Ex. D, Declaration of Kenneth Cassidy (“Cassidy Dec.”) ¶ 15. Two other women in the FSL tested positive at the hospital. Ex. F, Declaration of Marius Mason (“Mason Dec.”) ¶ 17.
By April 15, BOP had reported 44 prisoners and 39 staff members were positive for COVID-19 at FCI Danbury.4 Several days later, a prisoner from the facility died of the virus.5 FCI Danbury’s utter failure to implement effective COVID-19 testing has made it difficult to determine the total number of infected prisoners at the facility.6 Indeed, BOP has provided no
3 Exhibits referenced in this memorandum include exhibits attached to the Petition for Writ of Habeas Corpus (ECF No. 1) and supplemental exhibits attached hereto and are designated sequentially. Exhibits A through N are attached to the original petition. Exhibits O and following are attached to this memorandum
4 See Laura Cassels, COVID-19 deaths in federal prisons rise to 15; about 700 staff and inmates sick, Phoenix, April 15, 2020, https://www.floridaphoenix.com/2020/04/15/covid-19-deaths-in-federalprisons-rise-to-15-about-700-staff-and-inmates-sick/
5 Federal Bureau of Prisons, Inmate Death at FCI Danbury, https://www.bop.gov/resources/news/pdfs/20200418_press_release_dan.pdf
6 The BOP provides COVID-19 data each day on its website, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ The BOP’s reported data on each facility does not include prisoners it deems “recovered,” and by April 27 the agency was reporting only 5 positive cases among prisoners at
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information about how many tests have been conducted at FCI Danbury in total. Numerous prisoners exhibiting serious symptoms at the facility have not been tested. Regardless, it is clear that BOP’s data vastly understates the extent of the outbreak. Recent data from the BOP show that out of 2,700 tests conducted systemwide, nearly 2,000 have come back positive.7 This rate of more than 70% positive tests suggests that widespread testing would confirm many additional cases of COVID-19 at FCI Danbury. COVID-19 is spreading aggressively through FCI Danbury and exposing the men and women incarcerated there to grave risk.
A. Federal Satellite Low facility (“FSL”) There is a severe outbreak of COVID-19 in the women’s FSL, and the women in the facility are at grave risk. The outbreak, which started five weeks ago and has been utterly mishandled by BOP, shows no signs of abating. Since March 27, at least 4 women have been brought to the hospital and tested positive for the virus. Eleven more tested positive on April 25. Ex. O, Declaration of Miranda McLaurin (“McLaurin Dec.”) ¶ 8; Ex. P, Second Declaration of Kimberly Hoisington (“Hoisington Dec. 2”) ¶ 7. This is likely a significant undercount as only a fraction of women in the facility have been tested. As of April 30, 2020, there were 164 women in the FSL. Housing in the FSL is a single dormitory-style room that accommodates approximately 160-170 beds. Ex. E, Declaration of Christina Korbe (“Korbe Dec.”) ¶ 8. The room is divided into cubicles, each containing two bunk beds, separated by approximately four feet. Ex. F, Declaration of Marius Mason (“Mason Dec.”) ¶ 7; Hoisington Dec. ¶ 4. Beds in each cubicle are immediately adjacent to the cubicle wall, which does not reach to the ceiling so that women on the top bunk sleep with the head of the bed next to the woman on the top bunk in the adjacent cubicle. Mason Dec. ¶ 7; Korbe Dec. ¶ 10. All of the women in the FSL share the same three bathrooms, each of which includes between 4-8 toilets, sinks, and showers. Mason Dec. ¶ 10; Korbe Dec. ¶ 8. Water in the unit will
FCI Danbury. As of April 29, the positive number for prisoners was up to 18, likely as a result new testing that followed a positive test at the hospital on April 25 of a woman from the FSL.
7 See Michael Balsamo, Over 70% of tested inmates in federal prisons have COVID-19, Associated Press (Apr. 30, 2020), https://apnews.com/fb43e3ebc447355a4f71e3563dbdca4f.
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sometimes be shut off for a few hours or more than a day at a time, including for about 17 hours in early April. Mason Dec. ¶ 11. The FSL also includes a common area where the women have access to 6-12 shared phones (not all of which are working) and 6 shared computers (only 4 of which are working), which are located in close proximity to one another. Korbe Dec. ¶ 11; Mason Dec. ¶ 8. The phones and computers are not cleaned between each use. Mason Dec. ¶ 8.
The prisoners at FSL have not had access to hand sanitizer during the outbreak. Id. ¶ 12; Ex. I, Declaration of Tamika Somerville (“Somerville Dec.”) ¶ 9. Hand sanitizer has been out of stock at the commissary since the beginning of the pandemic. Ex. Q, Declaration of Shannon Battle (“Battle Dec.”) ¶ 6. They have one fabric washable mask each. Somerville Dec. ¶ 10. The soap dispensers in the bathrooms are empty, and there are not paper towels for the women to dry their hands. McLaurin Dec. ¶ 15.
On March 27, 2020 a woman at the FSL was brought to the hospital and tested positive for COVID-19. Hoisington Dec. ¶ 9. She had been feeling sick for weeks and had reported her symptoms to medical staff. Id. ¶¶ 5, 6. When she returned to the facility a few days later, she was placed in a small, cold isolation room with a toilet that was flushed by staff only a few times a day. Id. ¶¶ 10, 11. After 24 hours, she was placed for five days in the FSL’s visiting room with four other women. Id. ¶ 12. While there, one of the other woman slipped in the shower and was knocked unconscious. Id. ¶ 13. No staff responded to their calls for help, and the women had to bang on the window to get the attention of someone outside in the parking lot. Id.
Soon after this initial positive test, at least two more women from the FSL were brought to the hospital and tested positive. Mason Dec. ¶ 17. They were returned to the dormitory area within a week of their positive tests. Hoisington Dec. ¶ 9, 10, 12; Mason Dec. ¶ 18; Somerville Dec. ¶ 11.
Meanwhile, women who were sick were not being treated or tested for COVID-19; nor were they being separated from the other women in the unit. Korbe Dec. ¶ 15; Mason Dec. ¶19, 22. One woman who was sick in bed for weeks with a horrible cough, body aches fever, lack of appetite, and vomiting was told by staff that nothing was wrong with her. McLaurin Dec. ¶ 6. Another woman experienced in early April a severe headache, body aches, fever, shortness of
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breath, and a terrible cough, as well as a loss of appetite and sense of smell. Korbe Dec. ¶ 4. She was given no treatment and was not tested for COVID-19. Id. ¶¶ 5, 7. Before April 25, the only women tested for COVID-19 were the ones who ended up at the hospital. Mason Dec. ¶ 19.
Staff have been taking the women’s temperatures, which are sometimes recorded as artificially low, Mason Dec. ¶ 20, or exactly the same for several women in a row, Korbe Dec. ¶ 14. Sometimes staff tell women with a high temperature to drink cold water before retaking their temperature. Mason Dec. ¶ 21. One women had a temperature of 102 degrees according to hospital staff. Hoisington Dec. ¶ 8. Her temperature, when taken at the facility about an hour earlier registered 97 degrees. Id.
Medical staff are available at the FSL only on certain days. McLaurin Dec. ¶ 4. A doctor and a physician’s assistant rotate between FSL and the other FCI Danbury buildings and are there during limited hours on weekdays. Id. at ¶¶ 4, 5. To request medical care, a requester must go to “pill call,” where a pharmacy tech passes out medicine, and fill out a sick call slip. McLaurin Dec. ¶¶ 3, 4. The requester must then wait until she is called to be seen, which can take weeks. Id. ¶ 3.
In addition to the prisoners who have been sick with COVID-19, some FSL staff have had the virus. Mason Dec. ¶ 15. More than one correctional officer has returned to work within a week of being out sick with COVID-19. Id. Some officers have stated while at the facility that they still feel ill and did not want to return to work, but were told to return. Id.
Late in the night on April 24, one of the women in the dormitory was violently ill. She was struggling to breath and throwing up, dry heaving and gagging for hours before she was taken to the hospital by ambulance. Battle Dec. ¶ 11; Hoisington Dec. ¶ 16; Ex. R, Declaration of Kimberly Kitts (“Kitts Dec.”). After the woman was finally taken to the hospital, one of the other women in the unit got a disciplinary report for calling her lawyer about what happened. Hoisington Dec. 2 ¶ 3. The officer who wrote the report told the rest of the women that he would be listening to their calls and that anyone telling anyone on the outside about the incident would also get a disciplinary report. Id. ¶ 3; Korbe Dec. ¶ 16.
The next day, 43 women from the facility were tested for COVID-19. Hoisington Dec. at 6

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¶ 17; Kitts Dec. ¶ 6; McLaurin Dec. ¶ 8. Eleven of them tested positive. Hoisington Dec. 2 ¶ 7; McLaurin Dec. ¶ 8. Not everyone who had contact with the sick woman or the women who tested positive was tested or isolated. Kitts Dec. ¶ 6; McLaurin Dec. ¶ 13. The women who tested positive were placed in the facility’s visiting room. McLaurin Dec. ¶ 9. Because of a lack of beds, some women who have tested positive for COVID-19 sleep on the floor. Kitts Dec. ¶ 11. The women who tested negative were placed in the dining room. Hoisington Dec. 2 ¶ 7; McLaurin Dec. ¶ 9.
This method of separating the prisoners has not effectively isolated the different populations. Before they were quarantined, the 43 women were in the dormitory gathering personal belongings, using the phone and computer, using the bathroom, and showering. Kitts Dec. ¶ 6; Second Declaration of Christina Korbe (“Korbe Dec. 2”) ¶ 4. The spaces were not cleaned at that time. Kitts Dec. ¶ 6. Since they were first placed in quarantine, some women have come into the dormitory to use the phones and computers for email. Kitts Dec. ¶ 16. Laundry has been taken by staff and by prisoners from the rooms where people have been quarantining to the dormitory to be washed. Battle Dec. ¶ 21; Kitts Dec. ¶ 16. When women from the dormitory go to the pill line they have come into contact with women in the visiting room who tested positive for COVID-19. Battle Dec. ¶ 10. Staff, including officers, medical, and administrative personnel move among the various quarantine rooms and the dormitory. Kitts Dec. ¶ 17; Korbe Dec. ¶ 7; McLaurin Dec. ¶ 14.
The dining hall where some of the women are quarantined is connected to the kitchen, with tables in the front of the room, a counter for meals to be served dividing the room, and a kitchen in the back. Hoisington Dec. 2 ¶ 8; McLaurin Dec. ¶ 10. When the women were first placed in the dining room many people slept on the concrete floor because there were not enough cots. Kitts Dec. ¶ 12. The dining room has one bathroom with one toilet and sink. Hoisington Dec. 2 ¶ 9; McLaurin Dec. ¶ 10. A trailer with showers and toilets is parked outside the dining hall for the women to use. Battle Dec. ¶ 18. Hoisington Dec. 2 ¶ 9. Meals are still being prepared in the kitchen while the women who tested negative are quarantined in the dining room. Korbe Dec. 2 ¶ 8. Prisoners who are currently working in the kitchen had been working side-by-side with a woman who tested positive for COVID-19 and is now in isolation. Id. ¶ 8.
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In addition to the women in the FSL dormitory, visiting room, and dining room, some women were placed for several days in the classrooms, and one in the library. Hoisington Dec. 2 ¶ 11, 12; McLaurin Dec. ¶ 12. The library does not have heat. Hoisington Dec. 2 ¶ 11; Kitts Dec. ¶ 15. Neither the classrooms nor the library have bathrooms. Kitts Dec. ¶ 15. The woman who was placed in the library has had multiple surgeries for cancer, currently has two untreated cancerous growths, and has a chest tube. Kitts Dec. ¶ 15. She had to be brought by an officer to use the bathrooms that were being used also by the other women in quarantine. Kitts Dec. ¶ 15.
On April 28, the women at FSL had their temperature taken and were asked if they had any symptoms like a cough, sore throat, body aches, fatigue or diarrhea. Hoisington Dec. 2 ¶ 13; Kitts Dec. ¶ 19; Korbe Dec. 2 ¶ 11. No one else was tested for COVID-19 or removed from the unit at that time. Hoisington Dec. 2 ¶ 13; Kitts Dec. ¶ 20; Korbe Dec. 2 ¶ 11. On April 29, the women in quarantine in the classrooms and the library were taken to the special housing unit (SHU) at the men’s facility to be housed there. Korbe Decl 2. ¶ 12.
B. Women’s Minimum Security Camp The women’s camp at FCI Danbury is a minimum security facility—the very lowest security level in the federal prison system. As of April 30, 2020, there were 142 women at the camp.8 The women at the camp occupy a single building divided into four dormitories, each containing 25 cubicles with bunk beds sleeping two each, and nine rooms that can each hold 4 to 5 women. Martinez-Brooks Dec. ¶ 7; Ex. H, Declaration of Theresa Foreman (“Foreman Dec.”) ¶ 7. The cubicles in the dormitories have no doors and their dividing walls do not extend to the ceilings; the bunk beds are less than 6 feet away from each other. Martinez-Brooks Dec. ¶ 7; Foreman Dec. ¶ 7. Each dorm has a common bathroom area containing sinks, 3-5 toilets, and 4-6 showers. Martinez-Brooks Dec. ¶ 6. All the women in housed at the camp share 4 phones, 7 computers for email, and 3 working video-visiting machines, which are clustered together in a single common area. The common area also contains hot water taps, sinks for washing dishes, and
8 See Bureau of Prisons, Population Statistics, https://www.bop.gov/about/statistics/population_statistics.jsp (last updated Apr. 30, 2020).
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a recreation area with tables. Foreman Dec. ¶ 15. Quarantine efforts in the camp have been disorganized and ineffective. Initially, some
women were told that they are on a list for home confinement and would be quarantined before released. Martinez-Brooks Dec. ¶ 13. On April 6, 23 women were put in Dorm C for quarantine. Seven more were added the next day to Dorm C. On April 10, staff moved some women from Dorm C into Dorm D and then added an additional 28 women to both Dorm C and Dorm D—thus rendering the initial days of the quarantine for some women ineffective. Before April 15, there were around 43 women housed in the nine rooms. On April 15, they took all the women who were housed in the rooms and added them to Dorms A, B, and C—thus restarting the clock again for the women held previously in quarantine. Id. ¶¶ 5, 13.
April 15 was the start of a camp-wide lockdown. Martinez-Brooks Dec. ¶ 5. Under the lockdown, the women are confined to their dorm rooms for approximately 22 hours a day. Id. ¶ 11. As of April 26, A and B dorms each housed 48 women; C dorm housed 47 women and D Dorm houses 7. Id. ¶ 6. Women are being let out one dorm at a time for 45 minutes in the morning and an hour in the afternoon. Id. ¶ 11. During this time, they congregate in the camp’s common area trying to access the phones, computers, and video machines during their limited window of time. Id. ¶ 9, 11. Recently, women who are out of their dorm during their designated recreation time have been going to visit friends in other dorms. Id. ¶ 15. In addition, some prisoners at the camp are continuing to assist in food preparation, cooking, and cleaning the kitchen. Id. ¶ 18. Women also move throughout the facility multiple times a week for laundry. Foreman Dec. ¶ 18.
Meanwhile, staff posted at the camp circulate through the dorms throughout the day for count, food delivery, and commissary. Id. ¶ 7; Martinez-Brooks Dec. ¶ 19. Staff at the camp have also been posted at other facilities at FCI Danbury, and medical staff see prisoners at all three facilities. Martinez-Brooks Dec. ¶ 19; Foreman Dec. ¶ 7. Three correctional officers who have been at the camp have said that they had COVID-19, including one who works in food service. Martinez-Brooks Dec. ¶ 20. Two staff members who worked at the camp have been out for several weeks, and their offices were thoroughly cleaned. Foreman Dec. ¶ 13. Otherwise, cleaning at the
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camp has been sporadic, as some women have quit their ordinary cleaning jobs and women are responsible for cleaning their own sleeping areas. Id. ¶ 14.
There is no actual medical clinic in the camp and no medical staff permanently assigned to the camp or available 24 hours a day. Ex. C, Declaration of Dianthe Martinez-Brooks (MartinezBrooks Dec.) ¶ 21. During this lockdown, a sick call request is made to physician’s assistants when they come to the unit in the morning to dispense medications and the requester must wait until she is called in—often days later or not at all. Emergencies require a call from a correctional officer for a medical professional to come to the camp. Id. ¶ 21. Temperature checks have been sporadic. For example, temperatures were not taken of the women in the camp from April 26 to April 29. Ex. T, Second Declaration of Dianthe Martinez-Brooks (“Martinez-Brooks Dec. 2”) ¶ 2.
There has been mass confusion at the camp about who will be moving to home confinement. A pregnant woman was told she would be leaving on April 28 but was then told she would not leave until May 11, 2020. She has been in quarantine in D dorm since April 6, 2020. Id. ¶ 3. Petitioner Martinez-Brooks was given paperwork to sign on April 19 relating to home confinement and/or a halfway house. She was then informed she was not eligible because new criteria were being used. Martinez-Brooks Dec. ¶ 26. Multiple women who were initially told they were going home and even given dates for their release were later told they were not be leaving after all. Martinez-Brooks Dec. 2 ¶ 4.
C. Men’s Prison The men’s prison at FCI Danbury is a low-security facility containing 13 units, comprised of 10 units designed for dormitory-style housing and three units of individual cells. There is also a Special Housing Unit for solitary confinement. The dormitory units (designated C through L Units) house around 80 men and consist of rows of bunk beds lined in two rows three to four feet apart across a middle aisle, with no barriers between the beds. Cassidy Dec. ¶ 32; Ex. K, Declaration of Antrum Coston (“Coston Dec.”) ¶ 3. The average dorm also contains a bathroom with 5 stalls and a urinal, 5-6 sinks, and a shower area with 3-4 showers. Cassidy Dec. ¶¶ 2, 33; Coston Dec. ¶ 4; Ex. L, Declaration of Shannon Benson (“Benson Dec.”) ¶ 3. The dorms have 2
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small television rooms that typically hold 15-20 people at a time, and small phone and computer rooms that are almost always in use with men waiting nearby in line. Cassidy Dec. ¶ 35; Coston Dec. ¶ 4. The three units of individual cells (A, B and M Units) consist of two floors of cells, containing a bunk bed for two men with a toilet/sink. Ex. H, Declaration of Rafael Almonte (“Almonte Dec.”) ¶ 6; Coston Dec. ¶ 5. The cellblock units also contain small rooms for TV, phones, and computers—where men typically congregate. Coston Dec. ¶ 4. The cellblock units hold around 75 men. Almonte Dec. ¶ 7.
On or around March 27 2020, a man in the M Unit tested positive for COVID-19. Johnson Dec. ¶ 6. Soon after, two other men were removed from M Unit after they tested positive—one was a tutor and had been in contact with men in units throughout the facility. Almonte Dec. ¶ 15. All three men returned to M Unit in less than 14 days. Id. ¶ 17; Johnson Dec. ¶ 9. After the initial positive tests, M Unit was placed on lockdown. However, men in the other units continue to mix in the chow hall, pill line, and at recreation. Coston Dec. ¶¶ 10, 12, 16; Almonte Dec. ¶ 13. Also at the end of March, there was a positive test in the D Unit, and several men were removed. Cassidy Dec. ¶ 15. Eventually, all the units were placed on lockdown but staff continued to move in and out different units throughout the day.
Meanwhile, numerous men throughout the different units began experiencing serious symptoms of COVID-19 including fever, cough, and difficulty breathing. Johnson Dec. ¶ 9; Coston Dec. ¶ 13. Many were not tested and not placed in isolation. Coston Dec. ¶ 13; Ex. N, Declaration of Ronald Harper (“Harper Dec.”) ¶¶ 5, 6. On April 9, a man from one of the units was transported to the hospital and later died of COVID-19.9
Before the outbreak, the medical clinic at Danbury was typically staffed by one physician and two physician assistants. Almonte Dec. ¶ 11. Men who wanted to be seen could go up to the clinic in the morning and get on a sick call list. Coston Dec. ¶ 14. Since the lockdown started, it has been near impossible to get a medical appointment. Id. ¶ 14. A social worker comes into the
9 See supra note 5. 11

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units to conduct sick call triage, at times with the dental hygienist. Cassidy Dec. ¶ 18. The social worker collects sick call requests and speaks to men about their symptoms the unit.
Staff take the temperatures of men each day using forehand wand thermometers. Early on during the outbreak, even men with fevers were being kept in the units. More recently, some men with fevers have been taken up to the medical unit. Harper Dec. ¶ 6; Cassidy Dec. ¶ 13. But temperatures are not always reliably reported: sometimes, staff attribute high temperature readings to an equipment or operator error and take a second reading without putting the thermometer close to the man’s forehead. Cassidy Dec. ¶ 14. And men who have gone to medical have come back down to the unit, saying they were told to just take Tylenol or cough syrup and see if their fever goes away. Id. ¶ 12; Harper Dec. ¶ 5. Many men who have COVID-19 symptoms other than a fever including coughs and difficulty breathing have not been able to see a medical professional at all. Coston Dec. ¶ 13 (“[Y]ou had to be falling down to get any help.”); Cassidy Dec. ¶ 12.
II. FCI Danbury Has Not Implemented Essential Measures to Protect Prisoners and Mitigate the Spread of COVID-19 In the face of a COVID-19 outbreak, Respondents have utterly failed to take the measures
necessary to protect the women and men in its care.
A. Correctional facilities are incubators and amplifiers for infectious diseases like COVID-19, and the CDC has issued guidance for managing the virus in correctional facilities
The COVID-19 virus is highly infectious and can be spread “easily and sustainably” from person-to-person.10 The virus spreads through respiratory droplets, close personal contact, and contact with contaminated surfaces and objects, where the virus can survive for up to three days.11 Critically, people who are asymptomatic or pre-symptomatic can transmit the virus, making it
10 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.
11 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); 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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particularly difficult to slow its spread. Ex. A, Declaration of Jaimie Meyer, M.D. (“Meyer Dec.”) ¶ 20. There is no vaccine to protect against COVID-19 and there is no known medication to prevent or treat infection from COVID-19. Social distancing (remaining physically separated from known or potentially infected individuals) and vigilant hygiene (including washing hands with soap and water and disinfecting surfaces) are the only known effective measures for protecting vulnerable people from COVID-19.
COVID-19 poses particular risks to people in prison, because the activities of daily life happen in close proximity, there is limited access to personal hygiene resources and medical care, and, often, minimal levels of sanitation.12 Prisoners and staff interact in close proximity under cramped conditions that are designed to confine, rather than distance, people; as a result, correctional facilities are highly susceptible to rapid transmission of the virus through contact, including asymptomatic carriers who show no signs of illness, common surfaces, and movement of staff between facilities and the community. Spaces within prisons are often poorly ventilated, which promotes highly efficient spread of diseases through droplets. Id. ¶ 9. And prisons often lack adequate supplies of soap, sanitizers, disinfectants, paper towels, and the personal protective equipment necessary to ensure proper hygiene and mitigate spread of the virus. Id. ¶¶ 9, 11, 39.
Recognizing the dangers that COVID-19 poses for prisons, the Center for Disease Control and Prevention (“CDC”) on March 23, 2020, issued “Interim Guidance on Management of Coronavirus Disease (COVID-19) in Correctional and Detention Facilities” (“Interim Guidance”), which describes measures necessary to prevent the spread of COVID-19 in correctional facilities.13
12 See Interim Guidance on Management of Coronavirus Disease (COVID-19) in Correctional and Detention Facilities, CDC (Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf; Joseph A. Bick, Infection Control in Jails and Prisons, 45:8 Clinical Infectious Diseases 1047 (Oct. 2007), available at https://academic.oup.com/cid/article/45/8/1047/344842 (incarcerated people at increased risk for transmission of blood-borne pathogens, sexually transmitted diseases, certain antibiotic resistant infections, Staph. Infection, tuberculosis, influenza, and varicella-zoster); World Health Organization, Prisons and Health, Infectious diseases in prison at 73 (2014), available at http://www.euro.who.int/__data/assets/pdf_file/0005/249188/Prisons-and-Health.pdf?ua=1.
13 See Interim Guidance on Management of Coronavirus Disease (COVID-19) in Correctional and Detention Facilities, CDC (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf
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These guidelines include: diagnosing, isolating, and caring for those with COVID-19;
implementing quarantine of prisoners or staff who have had close contact with positive cases;
remediating spaces with known coronavirus contact; enacting stricter sanitation policies that
include cleaning and disinfecting shared areas and equipment; developing contingency plans to
prevent or mitigate spread of the disease; providing education and training to inmates and staff;
and implementing effective social distancing measures.14
B. FCI Danbury has Failed to Implement the CDC’s Guidance
Respondents’ failures to protect the health and safety of the incarcerated people in their
care have been—and continue to be—profound and pervasive throughout Danbury’s three
facilities. The failures to follow CDC Guidance include:
Failures to triage cases, and diagnose, isolate, and care for those with the disease: If an incarcerated person exhibits symptoms of COVID-19, the CDC Guidance calls for the individual to be immediately given a face mask, paced in isolation, provided a medical evaluation and treatment, and evaluated for possible testing. Contrary to this guidance, FCI Danbury avoids evaluating and testing prisoners with classic symptoms of COVID-19 including fever, cough, difficulty breathing, and loss of taste and smell. In many instances, individuals with these symptoms are denied access to medical evaluation and testing and instead left in crowded housing units. Without adequate medical attention, some prisoners have become gravely ill.
Failure to respond adequately to cases of close contact or observe appropriate quarantine/isolation: CDC Guidance directs prisons to implement 14-day quarantines/isolation of prisoners or staff who have had contact with people known to have tested positive for COVID-19, to monitor such Close Contact Cases for COVID-19 symptoms, and to keep staff members out of the facility unless they are asymptomatic 14 days after their exposure to COVID-19. Contrary to this Guidance, Respondents routinely fail to test or isolate prisoners with known close contact with individuals subsequently diagnosed with the virus. Prisoners who test positive for COVID-19 are frequently returned to the general population far earlier than appropriate pursuant to CDC Guidance, and staff positive for COVID-19 who were still exhibiting symptoms have returned to work.
Failure to remediate adequately spaces with known coronavirus contact and to inform prisoners of the extent of infection: In the event a prisoner or staff member tests positive for COVID-19, CDC Guidance calls for the facility to close off the areas used by that person. These areas are to be well ventilated for at least 24 hours before they are disinfected by people equipped with proper personal protective equipment (“PPE”).
14 Id.
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Respondents have failed to implement any of these measures.
Failure to adequately implement social distancing measures: The very configuration of FCI Danbury precludes meaningful social distancing. The overwhelming majority of the facility’s prisoners in each of the three facilities are housed dormitory-style and all prisoners in these configurations sleep within 3 to 4 feet of between 3 and 5 other prisoners. Throughout the day, prisoners congregate closely together to access the pill line, commissary, and phones and computers. They share a limited number of toilets, sinks, and showers. Staff move throughout the units within facilities, and among all three facilities.
Failure to implement necessary hygiene measures: CDC Guidance requires heightened hygienic, cleaning and disinfecting practices in order to prevent and mitigate COVID-19 infection. FCI Danbury has failed adequately to implement these heightened hygienic and cleaning practices. Petitioners do not have access to the cleaning supplies necessary to sanitize themselves, their personal items, or their living areas.
Failure to plan adequately to prevent or mitigate the spread of COVID-19 infection: CDC Guidance recommends that correctional facilities should develop contingency plans for reduced workforces due to staff absences. That Guidance also calls for the provision of PPE and contingency planning for shortages of PPE. FCI Danbury has failed to adequately plan for either inevitable staff shortages or the need for PPE, placing petitioners and the putative class members at heightened risk.
Failure to implement the training and interventions necessary to prevent the spread of COVID-19: CDC Guidance states that correctional staff and incarcerated people should be trained on donning, doffing and disposing of PPE. CDC Guidance further recommends that correctional facilities post signage informing staff and incarcerated people how to report COVID-19 symptoms and advising staff to stay at home when sick. FCI Danbury has failed adequately to implement either of these training and educational interventions.
Respondents’ failures to respond to the COVID-19 epidemic have further put petitioners and putative class members at unacceptably heightened risk of injury and illness unrelated to COVID-19: Respondents’ failure to prepare adequately for the COVID-19 epidemic has also put incarcerated people at heightened risk of other injury and illness. Just as those with COVID-19 symptoms are unable to access medical care, prisoners with other urgent health needs have gone without treatment. The pharmacy at FCI Danbury has been closed, which has led to delays in access to medication as prescriptions are shipped from another facility. Staff have been absent from the units, requiring prisoners themselves to respond to medical emergencies in the units.
C. Public health officials, Congress and the Department of Justice have recognized that prisons such as FCI Danbury need to de-densify to protect the health and safety of prisoners and staff
Even with effective hygiene practices, FCI Danbury remain too dangerous—especially for
those most vulnerable to serious illness or death— absent significant de-densifying. There is
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simply no way to keep the women and men housed in three facilities safe at current population levels. It is hard to imagine conditions more conducive to the spread of the virus than the FSL facility—with more than 150 women living all together in bunk beds in a single crowded room, sharing a limited number of bathrooms. The crowded housing conditions in the camp and the men’s facility are hardly better.
Recognizing the reality of COVID-19 in a prison setting, correctional public health experts, Congress, and the U.S. Department of Justice have recommended the release from custody of people most vulnerable to COVID-19 so as to protect them and permit risk mitigation for all people still held or working in facilities. Calling for immediate and extensive “efforts to decarcerate” to protect both prisoners and the general public, the New England Journal of Medicine explained:
The boundaries between communities and correctional institutions are porous, as are the borders between countries in the age of mass human travel. Despite security at nearly every nation’s border, Covid-19 has appeared in practically all countries. We can’t expect to find sturdier barriers between correctional institutions and their surrounding communities in any affected country. . . .To promote public health, we believe that efforts to decarcerate, which are already under way in some jurisdictions, need to be scaled up; and associated reductions of incarcerated populations should be sustained. The interrelation of correctional-system health and public health is a reality not only in the United States but around the world.15 In New York City, public officials, the jail oversight board, and doctors working at Rikers Island have acknowledged that the City’s jails are unsafe and that releasing people is the medically appropriate and humane option. On March 20, 2020, Dr. Robert Cohen, a member of New York City’s Board of Correction, said, “The most important thing we can do right now is discharge all of the people who are old and have serious medical issues—those people are likely to die from a coronavirus infection.”16 Ross McDonald, the Chief Medical Officer for the agency that provides
15 Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D., Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons, NEW ENGLAND JOURNAL OF MEDICINE (Apr. 9, 2020), available at https://www.nejm.org/doi/pdf/10.1056/NEJMp2005687?articleTools=true.
16 Jen Ransom and Alan Feuer, ‘A Storm Is Coming’: Fears of a Prisoner Epidemic as the Virus Spreads in the Jails, N.Y. Times (March 20, 2020), https://www.nytimes.com/2020/03/20/nyregion/nyccoronavirus-rikers-island.html
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healthcare to Rikers said the jail is a “public health disaster unfolding before our eyes.” He stressed: “This is not a generational public health crisis, rather it is a crisis of a magnitude no generation living today has ever seen.” He called for the release of “as many vulnerable people as possible”17
Congress recognized the need to move more federal prisoners to home confinement during this pandemic. On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (CARES Act, P.L. 116-136), which authorizes the Director of the BOP to lengthen the maximum amount of time that a prisoner may be placed on home confinement when the Attorney General “finds that emergency conditions will materially affect the functioning” of BOP.
On March 26, 2020, Attorney General William Barr directed the BOP to prioritize the use of “various statutory authorities to grant home confinement for prisoners seeking transfer in connection with the COVID-19 pandemic” because “for some eligible prisoners, home confinement might be more effective in protecting their health.”18 The Attorney General specifically recognized that “there are some at-risk prisoners who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than BOP facilities.”19 He identified as two of the critical, discretionary factors for consideration (1) “[t]he age and vulnerability of the prisoner to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines,” and (2) “the security level of the facility,” with “priority given” to prisoners incarcerated “in low and medium security facilities.”
17 Miranda Bryant, Coronavirus spread at Rikers is a 'public health disaster', says jail's top doctor, THE GUARDIAN (Apr. 1, 2020 10:36 am), Available at https://www.theguardian.com/usnews/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster; see also Statement of New York City Board of Correction, March 17, 2020 (calling on the City to release people from criminal custody, prioritizing people over 50, those with underlying health conditions, detained for administrative reasons, and those who have been convicted and sentenced to one year or less); New York City Board of Correction Calls for the City to Begin Releasing People from Jail as Part of Public Health Response to COVID-19 (Mar. 17, 2020), https://www.nysenate.gov/newsroom/in-the-news/julia-salazar/nyc-boardcorrection-calls-city-begin-releasing-people-jail
18 Memo from Attorney General to Director of Bureau of Prisons, March 26, 2020, https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf
19 Id. 17

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In an April 3 memo to the BOP Director, the Attorney General affirmed the BOP’s “profound obligation to protect the health and safety of all inmates” following the dramatic increases in confirmed COVID-19 cases at FCI Danbury and two other BOP facilities (FCI Oakdale in Louisiana, and FCI Elkton in Ohio).20 Barr asked the BOP to give particular priority to those three institutions and others similar affected. Significantly he stated: “[T]he 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.” He further recognized that, despite “extensive precautions to prevent COVID-19 from entering [BOP] facilities and infecting our prisoners,” those measures “have not been perfectly effective.” Accordingly, he ordered the BOP to take more aggressive steps, immediately, to transfer prisoners to home confinement, even if electronic monitoring will not be available. Echoing the warnings of public health experts, Attorney General Barr stated: “Given the speed with which this disease has spread through the general public, it is clear that time is of the essence.”
D. FCI Danbury’s failure to implement the CDC’s Guidance and de-densify its facilities places incarcerated women and men at grave risk
Notwithstanding Attorney General Barr’s statements and the recommendations of public health officials, Respondents have failed to use the BOP’s available statutory authority to reduce the population of FCI Danbury to mitigate the severe risk posed by COVID-19. Instead, the facility has reversed course, refusing to follow through with transfers to home confinement for individuals previously identified for such home confinement based on their medical vulnerability, and failing to take other measures appropriate for a public health crisis.21
20 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, Washington, D.C. (Apr. 3, 2020), available at https://www.justice.gov/file/1266661/download.
21 Memos from the Warden at FCI Danbury reveal the shifting criteria the facility has used for home confinement. See Ex. T (memo of April 16, 2020); Ex. U (memo of April 21, 2020).
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Last week, one district court expressly criticized FCI Danbury’s inexcusable failure to
implement proper transfer procedures for medically vulnerable prisoners. In United States v. Park,
No. 16-cr-473 (S.D.N.Y. Apr. 24, 2020), the court granted—over the government’s objection—
immediate compassionate release from FCI Danbury to Ms. Haena Park. As the Warden of FCI
Danbury explained, within less than two weeks the BOP’s Correctional Programs Division had
twice “revised the criteria which must be met in order for an inmate to be referred to home
confinement.” Park, Declaration of Warden Diane Easter at ¶¶ 4-5 (Apr. 23, 2020) [D.E. 69-1].
Concluding that the “ever-changing guidelines” meant “the Court cannot be assured that Ms. Park
will indeed be released on April 30, as is currently being represented,” the court ordered her
immediate release because “[w]e are living in novel and dangerous times” where “[e]very day—
indeed, every minute—may count.”22
The BOP has not disclosed the number of prisoners it typically released per day prior to
Attorney General Barr’s memos, nor has it disclosed how many new prisoners have entered BOP
custody during the same time period. No information is available about how many prisoners FCI
Danbury has released pursuant to Barr’s memos.23 The BOP does provide weekly updates on the
22 The BOP’s mismanagement of home confinement placements has occurred nationwide. See Letter from Kevin A. Ring, President, Families for Justice Reform to Attorney General Barr and Director Carvajal (April 21, 2020) (citing “reports from dozens of people around the country that their loved ones, quarantined with the explicit understanding that they would move to home confinement in two weeks, were instead returned to general population and told that the rules had changed and that they were no longer going home” and “numerous reports about case managers and counselors giving incorrect information and contradictory answers to people exploring early release options”), https://famm.org/wpcontent/uploads/final-bop-letter-april-21-2020.pdf; Order, United States v. Stahl, No. 18-cr-694(RA), at *1 (S.D.N.Y. Apr. 21, 2020) (noting that the BOP had already approved the defendant’s request for home confinement before deeming him likely no longer eligible in light of “new guidance;” directing the Government to, inter alia, provide an explanation from the BOP as to how new DOJ guidance could affect the prior approval).
23 According to the BOP’s website, from March 26 (the date of Attorney General Barr’s first memo) through April 25, the agency placed 1576 prisoners nationwide into home confinement—which would constitute only 0.9 percent of the approximately 171,000 prisoners currently held in BOP custody. However, the real number of those released to home confinement nationwide may well be less. As the Wall Street Journal reported on April 23: “The bureau said it has started placing at least 1,440 of the roughly 175,000 prisoners it holds into home confinement, but didn’t say how many of those people have actually been released.” Sadie Gurman & Rebecca Davis O’Brien, Confusion Hampers CoronavirusDriven Inmate Releases, Wall Street Journal, April 23, 2020;23 see also Joseph Neff & Keri Blakinger, Few Federal Prisoners Released Under COVID-19 Emergency Policies: A Federal Judge Called the
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number of people held at each facility. As of April 30, 2020, the BOP reports that 1,025 people are held at FCI Danbury. They are divided among the units as follows: 164 women are incarcerated at the satellite prison, 142 women are incarcerated at the camp, and 719 men are incarcerated at the men’s prison.24 At these population levels, FCI Danbury is simply unable to follow the CDC’s recommendations regarding isolation and social distancing.
COVID-19 can lead to dangerous—and sometimes fatal—consequences for those infected by it. While the risks for severe or deadly symptoms are elevated for people over the age of 60 and people of any age who suffer from certain underlying medical conditions (including asthma, obesity, diabetes, lung disease, heart disease, chronic liver or kidney disease, and compromised immune systems), even individuals outside of these categories are at risk of contracting this potentially deadly disease. For example, 22 percent of individuals requiring admission to a hospital intensive care unit do not have any underlying health conditions.25
Each of the four (named) Petitioners faces a particularly high risk of complications from COVID-19. Petitioner Dianthe Martinez-Brooks is a 50-year-old woman who suffers from asthma, hypertension, arthritis and systemic lupus erythematosus (SLE). She takes Atenolol for hypertension and has a Proventil emergency inhaler and Asmanex Twisthaler (mometasone furoate inhalation powder, 220 mg) for her asthma. Since her incarceration, she has been proscribed steroids once for the joint and muscle inflammation associated with her lupus. Martinez-Brooks Dec. ¶ 2. As a result of her hypertension, Ms. Martinez-Brooks is significantly more vulnerable to complications should she contract COVID-19. Indeed, the WHO-China Joint Mission Report provided historical mortality rates for those who contracted COVID-19 with specific pre-existing
Bureau of Prisons Release Process “Kafkaesque”, The Marshall Project, Apr. 25, 2020 (only 1,027 more prisoners allowed to serve the rest of their sentence in home confinement since Attorney General Barr’s April 3 urgent memo, “about half of 1 percent of the more than 174,000 people in the bureau’s custody”), https://www.themarshallproject.org/2020/04/25/few-federal-prisoners-released-under-covid-19emergency-policies.
24 See BOP, “Population Statistics” (last updated Apr. 30, 2020), https://www.bop.gov/about/statistics/population_statistics.jsp
25 Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12-March 28, 2020, CDC (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm
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conditions. For those with hypertension, the mortality rate was 8.4%.26 That same report indicates that the mortality rate for chronic respiratory disease such as asthma was 8.0%. Id. As a lupus patient, Ms. Martinez-Brooks is also at greater risk from COVID-19 in two respects. As with other lupus patients, Ms. Martinez-Brooks has been prescribed corticosteroids which weaken the immune system and render the patient immunocompromised. Both that compromised immune system and lupus itself are risk factors for an increased chance of infection and for the development of a more severe form of COVID-19.27
Petitioner Rejeanne Collier is a 64-year-old woman who suffers from systemic lupus erythematosus (SLE), hypertension and Hepatitis C. She has had surgery for intestinal cancer while in BOP custody and has been diagnosed with a spot on her lung. See Motion to Reduce Sentence, United States v. Collier, 6:12-cr-06003-CJS (N.D.N.Y. Apr. 16, 2020) (Doc. 64 at 13). As set forth above, these conditions condemn her to serve a sentence at substantial risk of serious illness or death. The mortality rate for COVID-19 with pre-existing hypertension is 8.4%; for cancer, the mortality rate is 7.6%.28 She is also at significantly greater risk as a result of her lupus. To the extent that the as yet incompletely diagnosed spot on her lung represents either lung cancer or some other form of respiratory compromise, that condition will also place her at substantially elevated risk of significant illness or death in the event she contracts coronavirus.
Petitioner Jackie Madore is a 50-year-old woman who suffers from hypertension, hypothyroidism, and Hepatitis C. As a result of her hypertension alone, without consideration of
26 See Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/defaultsource/coronaviruse/whochina-joint-mission-on-covid-19-final-report.pdf (hereinafter “WHO-China Joint Mission Report”).
27 See People who are at higher risk, Centers for Disease Control and Prevention: Coronavirus Disease 2019 (COVID-19) (Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html; Amr H. Sawalha et al, Epigenetic dysregulation of ACE2 and interferon-regulated genes might suggest increased COVID-19 susceptibility and severity in lupus patients, Clinical Immunology (2020): 108410, https://www.sciencedirect.com/science/article/pii/S1521661620302394 (“propos[ing] that lupus patients might be at an increased risk for infection by SARS-CoV-2 and for developing a more severe form of COVID-19, independent of the possible effect of immunosuppressive medications”).
28 See WHO-China Joint Mission Report at 12. 21

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the complicating effects of her other conditions, she has a substantially elevated risk of severe illness or mortality in the event she contracts COVID-19 while confined at FCI Danbury.29
Petitioner Kenneth Cassidy is a 54-year-old man with a significant number of risk factors putting him at high risk of severe illness or death in the event he contracts COVID-19. Mr. Cassidy has significant cardiovascular issues, including ischemic heart disease (i.e., deficient blood supply from a narrowing of the blood vessels), unstable angina, and hypertension. He has suffered three heart attacks, including two in his thirties. He has chronic bronchial asthma and other respiratory problems which have resulted in his having contracted pneumonia at least 21 times in his life. He also has chronic gastrointestinal and gastroesophageal disease including diverticulosis and he is morbidly obese. He suffers significant food allergies and is on a restricted diet as a result of his diverticulosis. He is on numerous different medications/interventions for these conditions. Pursuant to the above-cited WHO-China Joint Mission Report, each of these conditions puts Mr. Cassidy at significantly elevated risk of mortality in the event he should contract COVID-19: The mortality rate for hypertension is 8.4%; the mortality rate for chronic respiratory disease is 8.0%, the mortality rate for cardiovascular disease is 13.2%.30 Moreover, a recent study found that obesity was the single biggest chronic risk factor for hospitalization for COVID-19.31 COVID-19 infection in a patient presenting with all four medical conditions will undoubtedly be deadly.32 As a result of his medical condition, there is a grave risk that he will not make it out of FCI Danbury alive or will become terribly ill.
29 See id. 30 See id. 31 Christopher M. Petrilli et. al., Factors Associated With Hospitalization and Critical Illness Among 4,103 Patients with COVID-1 Disease in New York City (Apr. 11, 2020), https://www.medrxiv.org/content/10.1101/2020.04.08.20057794v1.full.pdf; see also Tiernan Ray, NYU scientists - Largest US study of COVID-19 finds obesity the single biggest 'chronic' factor in New York City's hospitalizations (April 12, 2020), https://www.zdnet.com/article/nyu-scientists-largest-u-s-studyof-covid-19-finds-obesity-the-single-biggest-factor-in-new-york-critical-cases/ 32 Safiya Richardson, et al., Presenting Characteristics, Comorbidies, and Outcomes Among 5700 Patients Hospitalized with COVID-19 in the New York City Area, J. AM. MED. ASS’N (Apr. 22, 2020), https://jamanetwork.com/journals/jama/fullarticle/2765184 (in study of 5,700 patients, finding that the most common comorbidities with COVID-19 were hypertension (56.6%), obesity (41.7%), and diabetes (33.8%)).
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Petitioners and other prisoners at FCI Danbury face risks not only from COVID-19, but from the inadequate health care the facility is providing for other conditions during this crisis. As a result of the increased attention to the COVID epidemic, non-virus medical needs have gone unattended. The regular prison physicians have been absent or are no longer available to prisoners on the unit, prisoners who do not present with fever during sick call cannot be referred to a physician, and sick call requests for other than virus symptoms go unanswered for prolonged periods of time. Cassidy Dec. ¶ 17; Martinez-Brooks Dec. ¶ 23; Benson Dec. ¶¶ 5, 7.33 Recently, the prison pharmacy has been closed. Medications must be shipped from another facility (USP Allenwood in Pennsylvania) resulting in delays in their delivery and disruption of medication regimens. Cassidy Dec. ¶ 7 (two week delay in receipt of correct dosage of medication); MartinezBrooks Dec. ¶ 23 (8 day delay in refill of hypertension medication).
In addition, special medical diets are not available to prisoners at FCI Danbury. As a result, on repeated occasions, special-diet prisoners have received meals containing ingredients dangerously harmful to their health, including, for example, delivery of meals containing peanut products to allergic patients at risk of anaphylaxis, or delivery of meals containing rice and beans to prisoners with diverticulosis. Cassidy Dec. ¶¶ 20, 22; Martinez-Brooks Dec. ¶ 22 (peanut butter was served multiple times in a dorm housing a woman with severe peanut allergy). As a result of the epidemic, food service has been reduced below BOP guidelines for caloric intake and nutritional value; food reductions put petitioners and putative class members at heightened risk of adverse health effects. Cassidy Dec. ¶ 21.34
33 Petitioner Kenneth Cassidy suffers from intestinal disease, including diverticulitis. Cassidy Dec. ¶ 5. He has recently developed an abnormal growth in the rectum which has resulted on occasion in dark black blood in feces and obstruction of his bowel. Although he has made at least three requests for a medical visit to assess and diagnose his condition, he has been advised that his condition is not an emergency and that the medical team is currently unavailable to evaluate him. Id. ¶ 17.
34 The COVID-19 pandemic has also resulted in worrisome curtailment of prisoners’ legal rights. The prison law library has been closed, Coston Dec. ¶ 10, and locked and the administrative remedy process has been suspended indefinitely, Cassidy Dec. ¶ 25. Legal mail is being delayed and at times not picked up due to staff shortages. Id. ¶ 26. Legal calls are being denied and legal requests from attorneys are often going unanswered, including for open and pending cases that require access to attorneys such as the development of pleadings in connection with motions for compassionate release. Cassidy Dec. ¶¶ 2527.
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ARGUMENT I. Standard of Review
In this case, Petitioners seek two forms of immediate relief. The Subclass, consisting of medically vulnerable individuals, seeks immediate release from the chaotic and infectious environment at FCI Danbury to home confinement through an order of enlargement. Their health and possibly their lives depend on how quickly they are released from that environment.
The Class as a whole seeks orders requiring Respondents to enlarge to home confinement all women currently housed in the satellite camp as a means to achieve necessary social distancing among the female population of FCI Danbury. The Class further seeks orders requiring Respondents (a) to establish a medically safe environment at FCI Danbury through implementation of necessary and appropriate measures to maximize social distancing and to improve hygiene for the prisoners who remain at FCI Danbury for the duration of the COVID-19 pandemic and/or (b) to transfer such Class members to other BOP facilities that can provide such medically safe environment.
The standards for granting a temporary restraining order (“TRO”) are the same standards that govern preliminary injunctions. See Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. New York Shipping Ass’n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992); Maxum Petroleum, Inc. v. Hiatt, No. 3:16-CV-01615 (VLB), 2016 WL 5496283, at *1 (D. Conn. 2016); Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). For a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Second Circuit has long held that the Winter factors are properly balanced with a showing of “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Citigroup Glob. Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (quoting Jackson Dairy, Inc. v.
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H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)). Petitioners meet all four Winter factors, and therefore more than satisfy the Second Circuit alternative of “sufficiently serious questions going to the merits to make them a fair ground for litigation.” Id.
Once a plaintiff demonstrates entitlement to preliminary relief, courts have broad power to fashion equitable remedies to address constitutional violations in prisons. Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978). And although courts must “be sensitive to the State’s interest[s]” in imprisonment, courts “must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners [and] . . . may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511 (2011).
Action by this Court is necessary here. There is no vaccine or cure for COVID-19. And the conditions at FCI Danbury inherently make social distancing and other imperative protective measures impossible. As such, the only way to protect against the imminent risk of substantial harm and possible death for the subclass of prisoners who are most vulnerable to the virus is to immediately remove them from the prison before they contract the virus. Injunctive relief is necessary because the danger here, vulnerable people condemned to prolonged illness and potential death, is the quintessential irreparable harm. See, e.g., Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001) (“[P]ain, suffering and the risk of death constitute ‘irreparable harm’ sufficient to support a preliminary injunction in prison cases.”). There is also an overwhelming public interest in limiting the spread of COVID-19, both to minimize further infections and to reduce strain on overwhelmed health systems. And, in light of the global COVID-19 pandemic, the balance of equities weighs heavily in favor of the vulnerable prisoners, who must be transferred to home confinement to self-isolate, and against Respondents’ interest in indefinitely confining Petitioners, the Class and the Subclass, in life-threatening conditions. This Court should order that the Subclass be immediately released to home confinement. The Court should further order that Respondents release to home confinement all members of the Class currently housed in the satellite camp as a means to achieve necessary social distancing and that Respondents implement all
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necessary and appropriate measures (a) to establish a medically safe environment at FCI Danbury for the population that remains there and/or (b) to transfer such Class members to other BOP facilities as necessary to create such medically safe environment.
II. Petitioners and the Class and Subclass Face Irreparable Harm If They Continue to be Incarcerated. Each of the named Petitioners and the members of the Class and Subclass face an immense
threat of irreparable harm that they will contract and may suffer severe illness or death from COVID-19 if they continue to be incarcerated under existing conditions of inadequate social distancing measures and inadequate hygiene.
Irreparable harm is the threshold requirement for the granting of a TRO. Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999)). Furthermore, “the Second Circuit has deemed the threshold showing of ‘irreparable harm’ to be of particular significance under Rule 65, regardless of the strength of the movant’s case on the merits.” AIM Int’l Trading LLC v. Valcucine SpA., 188 F. Supp. 2d 384, 387 (S.D.N.Y. 2002).
The Supreme Court has determined that substantially increased risk of serious illness and death always constitutes irreparable injury. See, e.g., Helling v. McKinney, 509 U.S. 25, 33(1993) (“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.”). See also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 43 (2d Cir. 1997) (finding the burden of showing irreparable injury satisfied where evidence showed that closing of treatment program would lead to plaintiffs’ continued abuse of alcohol and drugs, “resulting in death, illness, or disability”); see also Harris v. Bd. of Supervisors, Los Angeles Cty., 366 F.3d 754, 766 (9th Cir. 2004) (finding likelihood of “pain, infection, amputation, medical complications, and death” constituted irreparable harm); Stagliano v. Herkimer Cent. Sch. Dist., 151 F. Supp. 3d 264, 273 (N.D.N.Y. 2015) (“[T]he obvious potential for such issues as developing chronic health issues or spreading contagious diseases underscores the need for equitable relief . . . .”).
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Even the failure to test for a disease has been sufficient to support a finding of irreparable harm. See Boone v. Brown, No. Civ. 05–750(AET), 2005 WL 2006997, at *14 (D.N.J. Aug. 22, 2005) (allegation of refusal to provide adequate testing for highly contagious infectious disease sufficient to demonstrate irreparable harm); Austin v. Pa. Dep’t of Corr., Civ. A. No. 90–7497, 1992 WL 277511, at *7 (E.D. Pa. Sept. 29, 1992) (granting preliminary injunction for prison to develop testing and protocol for Tuberculosis); see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (state officials have an affirmative obligation to protect prisoners from infectious disease).
Harm is irreparable when money damages after the matter is resolved will not be adequate redress. See JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990). Here, no amount of damages could make Petitioners or the members of the Class or Subclass whole if they suffer illness or die a preventable death while in custody. Furthermore, alleged violations of constitutional rights, such as those made here, amount to irreparable injury. See, e.g., Conn. Dep’t Envtl. Prot. v. OSHA, 356 F.3d 226, 231 (2d Cir. 2004); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996).
A likelihood of irreparable harm is clearly present here. Petitioners and the members of the Class and Subclass face severe illness, pain, and potentially death if the conditions of their incarceration are not addressed and changed now. COVID-19 has already gained an initial foothold at the FCI Danbury, has already spawned secondary outbreaks, and its continued spread is inevitable. Once infected, Petitioners and other prisoners will be at serious risk of grave or lifethreatening complications due not only to the FCI Danbury’s patently inadequate sanitary conditions, health protections, and housing practices, but also (for the medically vulnerable Subclass) because of their ages and pre-existing medical conditions.
Indeed, numerous federal courts around the country have found the threat posed by the COVID-19 pandemic to constitute irreparable injury for the purposes of temporary restraining orders and preliminary injunctions. See, e.g., Castillo v. Barr, No. CV 20-00605, at *5-6 (C.D. Cal. Mar. 27, 2020) (finding that petitioners should be released from immigration custody because
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they established irreparable harm stemming from risk of exposure to COVID-19); Coronel v. Decker, 20-cv-2472, 2020 WL 1487274, at *3 (S.D.N.Y. Mar. 27, 2020) (“Due to their serious underlying medical conditions, all Petitioners face a risk of severe, irreparable harm if they contract COVID-19.”); Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, [COVID-19] infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”).
III. Petitioners, the Class and Subclass Are Substantially Likely to Succeed on the Merits of Their Claims. Petitioners, and the Class and Subclass they seek to represent have suffered violations of
their constitutional rights. Respondents have acted with deliberate indifference to the medical needs of people incarcerated at FCI Danbury, placing all Class and Subclass members in danger as a result of Respondents’ inadequate response to the risk to Class and Subclass members from COVID-19.
A. The Class and Subclass are Likely to Succeed on their Claim that Respondents Have Violated the Eighth Amendment.
The Eighth Amendment’s ban on cruel and unusual punishment safeguards the rights of prisoners while in state custody. Under the Eighth Amendment, the Government has an affirmative duty to provide conditions of reasonable health and safety to those in its custody. DeShaney v. Winnebago County Dep’t Soc. Servs., 489 U.S. 189, 199-200 (1989) (“[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.”). This affirmative duty includes the obligation to provide adequate care to inmates with acute medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
All incarcerated people have a right to be housed safely. That right is violated if they are “incarcerated under conditions posing a substantial risk of serious harm,” and their jailers’ “state of mind,” at least for convicted detainees, “is one of ‘deliberate indifference’ to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The law is clear that when prison
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authorities “strip [prisoners] of virtually every means of self-protection and foreclose[] their access to outside aid, [they] are not free to let the state of nature take its course.” Id. at 833. Instead, prison officials have a responsibility under the Eight Amendment to “take reasonable measures to guarantee the safety of the inmates.” Id. at 832. Prison authorities are liable if they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering.” Helling, 509 U.S. at 33.
An Eighth Amendment claim based on conditions of confinement has two prongs: an objective prong and subjective prong. Under the objective prong, Eighth Amendment jurisprudence specifically holds that incarcerated individuals may not constitutionally be exposed to a severe risk of contracting a communicable disease. Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect inmates from infectious disease.”); Lareau v. Manson, 651 F.2d 96, 109–11 (2d Cir. 1981); Gates v. Collier, 501 F.2d 1291, 1300-02 (5th Cir. 1974) (cited with approval in Helling, 509 U.S. at 34).
The Eighth Amendment’s “deliberate indifference” inquiry specifically encompasses the risk of future harm in its analysis. In Helling v. McKinney, the Supreme Court held that a prisoner’s exposure to second-hand smoke constituted a viable Eighth Amendment claim, even before contracting any second-hand-smoke related illness. 509 U.S. at 35. “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,” the Court observed. Id. at 33-34. Similarly, the Helling Court explained that prison officials cannot “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.” Id. at 33; see also Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997) (noting that “exposure of inmates to a serious, communicable disease . . . can qualify [as a] deprivation . . . [that is] sufficiently serious). Where continuing confinement in an environment that puts a prisoner at risk of known exposure to serious disease, the prison must “choose between removing the prisoner from the unhealthy environment and protecting him from its consequences ... provided, of course, that the protection is efficacious.” Powers v. Snyder, 484 F.3d 929, 931 (7th Cir. 2007); see also
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McDonald v. Hardy, 821 F.3d 882, 889 (7th Cir. 2016) (explaining that the Eighth Amendment does not excuse deliberate indifference simply because harms “have not yet reached the point of causing acute or life-threatening injuries”).
Under the second, or subjective, prong of a “deliberate indifference” claim, an individual must next show that prison officials “acted with deliberate indifference to [the plaintiff’s] medical needs.” Brock, 315 F.3d at 162; see also Estelle, 429 U.S. at 104. To meet this second prong, the individual is required to prove that “the prison official knew of and disregarded the plaintiff’s serious medical needs.” Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998)). A prisoner need not show that an official acted “for the very purpose of causing harm,” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), but must show that an official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it,” Farmer, 511 U.S. at 847. A “fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842; Hope v. Pelzer, 536 U.S. 730, 738 (2002) (“We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious.”). The Supreme Court has directed lower courts to consider “prison authorities’ current attitude and conduct” and preventative policies put in place in determining whether officials are deliberately indifferent to medical needs. Helling, 509 U.S. at 36 (directing the court of appeals, on remand, to evaluate the plaintiff’s Eighth Amendment claim in light of a new smoking policy put in place in the course of the litigation).
Both of these standards are easily met in this case. The conditions at FCI Danbury clearly violate Respondents’ obligation not to house the prisoners in their care under conditions posing a substantial risk of serious harm. Petitioners and the Class and Subclass they represent are being exposed to extreme and unprecedented risk of infection and death because of the failure of FCI Danbury to meet the most minimal public health standards. Every person detained at FCI Danbury under the chaotic conditions that prevail and where the applicable CDC Guidance is being ignored and disregarded—including every member of the medically vulnerable Subclass—is rendered at
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heightened risk of infection that can cause severe and debilitating injury and death and will likely succeed on the merits of their Eighth Amendment claim.
Respondents are aware of and recklessly indifferent to the grave threat COVID-19 presents to petitioners and the members of the Class and Subclass who are incarcerated at FCI Danbury. By failing to abate the risks that these individuals face from COVID-19, Respondents are deliberately indifferent to their serious medical needs in contravention of the Eighth Amendment. “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). Custodians are still deliberately indifferent if they took some action, observed that it was failing, but choose not to adjust. See, e.g, 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); Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994) (“A jury could infer deliberate indifference from the fact that [defendant] knew the extent of [plaintiff’s] pain, knew that the course of treatment was largely ineffective, and declined to do anything more to attempt to improve [plaintiff’s] situation.”); Ruffin v. Deperio, 97 F. Supp. 2d 346, 353 (W.D.N.Y. 2000) (deliberate indifference could be found where “defendants’ treatment’ of plaintiff consisted of little more than documenting his worsening condition, and continuing the provision of ineffective medications”); United States v. Rodriguez, No. 2:03-cr-0271, 2020 WL 1627331 (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[.]”).
Most saliently, although Respondents were directed by Attorney General Barr more than 30 days ago to give priority to FCI Danbury in identifying medically vulnerable prisoners who could serve their sentences in home confinement, Respondents have failed to transfer such medically vulnerable prisoners from FCI Danbury in any meaningful numbers, thus continuing to endanger not only those medically vulnerable individuals but also the prison population at large that would otherwise benefit from de-densification measures.
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And, as set forth above, Respondents have carelessly failed to address the COVID-19 pandemic sweeping through FCI Danbury. They have failed to triage cases or to diagnose and isolate disease – including by knowingly refusing to take temperatures (and therefore diagnose with COVID-19) prisoners presenting with symptoms consistent with coronavirus infection, knowingly distorting temperature readings, and deliberately returning prisoners with confirmed fever to the general population – instructing those individuals to take Tylenol and lie down. Respondents have further failed to observe appropriate quarantine/isolation policies, failing to test and isolate prisoners in close contact with individuals subsequently diagnosed with cornonavirus, and returning individuals who test positive for COVID-19 (whether prisoners, correctional staff, or food service personnel) to the general population far earlier than appropriate pursuant to CDC Guidance and failing to observe appropriate observation requirements for new prisoners.
Respondents have also deliberately failed to implement adequate social distancing measures with full knowledge that, pursuant to relevant CDC Guidance, such social distancing is critical to reducing the spread of disease. The prison layout is incompatible with social distancing in the best of circumstances, but Respondents have undertaken actions that exacerbate the problem. Thus, correctional staff continue to move regularly between units, in contravention of proper social distancing and Respondents have deliberately moved prisoners from rooms where greater separation was possible into dorms where such separation is not possible. Respondents have further taken patently insufficient action to reduce close contact between prisoners in multiple aspects of prison life, including lines for phone and computer use, and lines for commissary, medication and recreation. And, Respondents have violated basic isolation protocols, intermingling prisoners with unknown COVID-19 exposures into units previously isolated for individuals nearing release or for individuals at heightened medical risk.
Respondents have further failed to observe mandated hygiene measures. Frequently used surfaces are not regularly sanitized, and cleaning throughout the facility – much of which depends on prisoner labor – is sporadic at best. The prison has not made available adequate supplies of personal protective equipment, soap and sanitizers to either prisoners or staff. Isolation wards are
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established in unhygienic makeshift spaces, including in visiting rooms or recreation areas with insufficient running water.
Finally, Respondents’ health care system is grossly inadequate. Aside from the deliberate indifference reflected in Respondents’ purposeful efforts to avoid testing for and diagnosing COVID-19 infection in prisoners presenting with symptoms of the disease, non-virus medical needs are being completely neglected: regular physicians are absent, prisoners who do not present with fever during sick call are not being referred for physician follow-up and sick call requests for other than virus symptoms – however serious or urgent – go unanswered for prolonged periods of time. Moreover, the prison pharmacy has been closed and medically vulnerable prisoners are being subject to extreme delays and disruption of their medication regimens.
Petitioners and the Class and Subclass members remain incarcerated at FCI Danbury while a pandemic sweeps through it like wildfire and every lull is followed by a new eruption. The unconstitutionally dangerous conditions at FCI Danbury will inevitably lead to the illness—and death—of prisoners and corrections officers alike. The Eighth Amendment bars this imminent, deadly exposure to COVID-19 and petitioners are therefore highly likely to succeed on the merits of their claims.
B. This Action is Properly Brought Pursuant to Section 2241. Section 2241(c)(3) authorizes courts to grant habeas corpus relief where a person is “in custody in violation of the United States.” The Second Circuit has “long interpreted § 2241 as applying to challenges to the execution of a federal sentence, including such matters as . . . prison conditions.” Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (internal quotation marks omitted). This includes challenges to detention where conditions pose a threat to Petitioners’ medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (approving the use of § 2241 to challenge a prisoner’s transfer where that transfer created a risk of fatal heart failure). The Second Circuit’s decision in Roba is instructive. In that case, Petitioner alleged that an imminent transfer from New York to face charges in California would create a substantial risk of
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death because of his precarious heart condition. The Second Circuit held that there was Section 2241 jurisdiction to challenge his contemplated transfer, where such custody would threaten his life, citing Estelle v. Gamble, the Supreme Court’s seminal case establishing the Eighth Amendment’s deliberate indifference standard. 604 F.2d at 218–19. Critically, the court held that habeas jurisdiction was appropriate even though the transfer, and hence custody, was imminent: “Petitioner need not wait until the marshals physically lay hands on him; he is entitled now to challenge the allegedly unlawful conditions of his imminent custody.” Id. at 219.
In addition, Petitioners are excused from § 2241’s prudential exhaustion requirements. An exhaustion requirement does not apply where the petitioner is likely to suffer an irreparable injury without immediate judicial relief or where the administrative remedy would be futile. Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003), as amended (July 24, 2003); see also United States v. Basciano, 369 F. Supp. 2d 344, 348 (E.D.N.Y. 2005) (excusing exhaustion in considering a § 2241 petition brought by a prisoner held in SHU, noting that “the court may excuse exhaustion if it appears that an administrative appeal would be futile, or because the appeals process is shown to be inadequate to prevent irreparable harm to the defendant”). Here, both exceptions are met. The BOP’s Administrative Remedy Program is a lengthy process that would not provide the immediate relief necessary to avoid irreparable injury and does not provide for all measures of relief sought by Petitioners on behalf of themselves and other proposed Class members. Moreover, staff at FCI Danbury have informed prisoners that, due to the state of emergency under which the facility is operating, staff are unavailable to review, investigate, and respond to grievances and the administrative remedy process is suspended. Cassidy Dec. ¶¶ 25, 43. IV. The Equities and Public Interest Weigh in Favor of the Relief Petitioners Seek.
The equities and public interest factors, which “merge” when the government is the opposing party, Coronel, 2020 WL 1487274, at *7 (citing Planned Parenthood of New York City v. U.S. Dep’t of Health & Human Servs., 337 F. Supp. 3d 308, 343 (S.D.N.Y. 2018)), favor injunctive relief here.
First, “the public interest is best served by ensuring the constitutional rights of persons 34

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within the United States are upheld.” Coronel, 2020 WL 1487274, at *7 (quoting Sajous v. Decker, 2018 WL 2357266, at *13 (S.D.N.Y. 2018)); see also L.V.M. v. Lloyd, 318 F. Supp. 3d 601, 620 (S.D.N.Y. 2018). This is especially true in this case, where the constitutional rights at stake go to the very physical well-being of the aggrieved individuals.
Second, ensuring public health and safety is also in the public’s interest. Courts have recognized the overwhelming “public interest” in releasing vulnerable individuals “in light of the rapidly-evolving public health crisis engendered by the spread of COVID-19.” Coronel, 2020 WL 1487274, at *8; see Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”). Moreover, the relief requested here would also protect FCI Danbury staff members, as well as the community at large— as staff members who come into contact with COVID-19-positive inmates may spread the disease to their families and communities.35 Sick prisoners or staff members will frequently need to be transported to local hospitals, which are already overwhelmed. Any action to ease the burden on hospitals and healthcare systems – or, at a minimum, to prevent making the situation worse – is undeniably in the public interest.
V. This Court Has the Power to Grant a Preliminary Injunction and Issue a Provisional Order of Enlargement of Custody While this Habeas Action is Pending. In light of the emergency nature of Petitioners’ circumstances and the issues raised by their
petition, they request that the Court act immediately to safeguard their wellbeing and the wellbeing of the other prisoners at FCI Danbury and enter an Order enlarging their custody to place them and other medically vulnerable members of the Subclass on home confinement during the pendency of this habeas action.
Provisional relief is required here in order to preserve Petitioners’ current state of health and wellbeing and to make the remedy of release effective if they prevail in this action. Petitioners have demonstrated “extraordinary circumstances” and presented “substantial claims” supporting
35 Sandhya Kajeepeta & Seth J. Prins, Why Coronavirus in Jails Should Concern All of Us, THE APPEAL (Mar. 24, 2020), https://theappeal.org/coronavirus-jails-public-health/.
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enlargement relief in light of the rampant spread of COVID-19 at FCI Danbury, the particular threat to their health, and Respondents’ failure to ensure necessary social distancing, effective testing and quarantine procedures, and adequate sanitation. Enlargement is, thus, both appropriate and necessary here.
A. The Enlargement Power of the Federal District Courts Federal district courts have authority, when habeas actions are pending, to “enlarge” the custody of petitioners. Enlargement is not release. Rather, it is a provisional remedy that modifies custody by expanding the site at which it takes place. That is, the petitioner remains in custody, but the place of custody is changed, or “enlarged,” upon order of the court, from a particular prison to a hospital, halfway house, a person’s home, or another setting. See Ex. B, Declaration of Professor Judith Resnik Regarding Enlargement and the Use of Provisional Remedies for Detained Individuals (“Resnik Dec.) ¶¶ 28-29; see also Wilson v. Williams, No. 20-cv-00794, 2020 WL 1940882, *4 (N.D. Ohio, April 22, 2020) (describing the authority of the district court to grant enlargement pending a ruling on the merits of a habeas petition, noting that “[w]hen 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”). Enlargement is part and parcel of Congress’s authorization of federal judges under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” See 28 U.S.C. § 2243. Judges in this District have long recognized and utilized enlargement as a provisional remedy in habeas actions. See Resnik Dec. ¶¶ 32-34 (describing Judge T.F Gilroy Daly’s use of enlargement in the 1970s); see also Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (describing the authority of district courts to release habeas petitioners pending a ruling on the merits, using the term “bail” instead of “enlargement”); Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir. 1978); Gaymon v. Whidden, No. 3:11-cv-805, 2011 WL 2078632 (D. Conn. 2011) (recognizing the existence of such power with respect to a petitioner seeking relief under 28 U.S.C. § 2254); Rado v. Meachum, 699 F. Supp. 25, 26 (D. Conn. 1988) (“A federal court has the inherent power
36

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to release a state prisoner on bail pending resolution of his habeas petition.”).36 Enlargement is appropriate when, as here, a court must work through novel and complex
legal issues in the context of an urgent crisis. Enlargement provides the court a provisional mechanism by which to increase the safety of the Petitioners, fellow prisoners, and correctional staff during the course of the legal proceedings and thus ensure that eventual habeas relief is effective and meaningful. See Resnik Dec. ¶ 9.
B. Legal Standard for Enlargement An order of enlargement pending the merits of a habeas decision is appropriate if a petitioner demonstrates “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See Mapp, 241 F.3d at 226 (concluding that to obtain an order for release pending the merits of habeas decision, the petitioner must demonstrate “extraordinary circumstances” and that the underlying claim raises “substantial claims”). In Wilson v. Williams, No. 20-cv-00794, 2020 WL 1940882, *4 (N.D. Ohio, April 22, 2020), the court considered an emergency habeas action brought by prisoners related to the spread of COVID-19 at Elkton Federal Correctional Institution. The petitioners sued on behalf of themselves and a class of all current and future Elkton prisoners, as well as a subclass of medically vulnerable prisoners. They sought immediate relief for the subclass, pending resolution of the action, in the form of discharge from the physical confines of the Elkron prison. In considering the request, the court observed that district courts have authority “to grant enlargement to a defendant pending a ruling on the merits of that defendant’s habeas petition,” and concluded that “the exceptional circumstances at Elkton and the Petitioners’ substantial claims, that are likely to succeed at the merits stage, necessitate the exercise of that authority and that such relief is proper for members of the subclass defined infra.” The court defined the subclass as those
36 Federal Rule of Appellate Procedure 23 provides in part that while a decision to release or not release a prisoner is under review, the prisoner may be “(1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety.” Thus, the appellate rule uses language familiar in the context of bail, while also authorizing the prisoner to be detained in “other appropriate custody.” See Resnik Dec. ¶ 35.
37

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people “identified by the CDC as being at higher risk” from COVID-19. Because of the class
action nature of the habeas proceeding, the Court was “unable to determine the specific type of
enlargement most suitable for each subclass member.” Thus, the court granted “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.” Finding
that the standard for a preliminary injunction was met, the court entered an order as follows:
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 non-transfer 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 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. (Id. at *10-11). Numerous federal district courts have already determined that enlargement (or relief styled
as “bail”) is an appropriate provisional remedy in the context of a habeas petition related to the
spread of COVID-19 in detention facilities, citing the “exceptional circumstances” at the facility
and the petitioners’ likelihood of success on the merits of their claims. See, e.g., Wilson, 2020 WL
1940882, at *4; Coronel, 2020 WL 1487274, at *9 (noting that “[s]evere health issues have been
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the prototypical but rare case of extraordinary circumstances that justify release pending adjudication of habeas” and “[i]n order to secure a meaningful bond hearing and therefore preserve the effectiveness of the remedy sought on habeas, Petitioners must be released until they receive their bond hearings”); Avendano Hernandez v. Decker, No. 20-CV-1589 (JPO), 2020 WL 1547459, at *3 (S.D.N.Y. Mar. 31, 2020) (“continued risk of exposure to COVID-19” constituting “extraordinary circumstances”); Basank v. Decker, No. 20 Civ. 2518 (AT), 2020 WL 1953827, at *13 (S.D.N.Y. Apr. 23, 2020) (granting release where claims of deliberate indifference to serious medical needs and risk from COVID-19 are “plainly substantial” and “[d]etention of Petitioners pending final adjudication of this action could cause severe illness or death—precisely the harm their petition seeks to avert”); Barbecho v. Decker, No. 20-CV-2821 (AJN), 2020 WL 1876328, *8 (S.D.N.Y. Apr. 15, 2020) (noting that “[s]evere health issues have been the prototypical but rare case of extraordinary circumstances” and that, were petitioners to remain in detention, they would face significant risk of contracting COVID-19); Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, *8-9 (D. Mass. Apr. 8, 2020) (bail for detainees in habeas class, citing the “exceptional circumstances of this nightmarish pandemic”); United States v. Nkanga, No. 18-CR713 (JMF), 2020 WL 1695417, *3 (S.D.N.Y. Apr. 7, 2020) (ordering release on bail pending determination of § 2255 motion alleging counsel was ineffective in not requesting delay of selfsurrender date in the midst of COVID-19 pandemic).
CONCLUSION Enlargement is an appropriate and necessary form of provisional relief here in light of the exceptional circumstances, Petitioners’ substantial claims, and the urgent risk that COVID-19 poses to health and life of all persons incarcerated at FCI Danbury without immediate implementation of appropriate social distancing measures. The country faces a public health crisis of epic proportions. COVID-19 presents risks to all of us, and has forced us to come together to make tough decisions that are necessary to reduce the number of fatalities caused by the virus. We must allow everyone to engage in practices that flatten the curve, including social distancing and rigorous hygiene—particularly for those among
39

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us who are most vulnerable. Both the United States Department of Justice and the federal Bureau of Prisons have acknowledged the obligation to de-densify federal correctional institutions— including FCI Danbury in particular—by transferring the most medically vulnerable prisoners to home confinement in order to protect not just the health and welfare of these more medically vulnerable individuals but the health and welfare of the entire prison population and the staff.
But Respondents have not acted on their admitted obligations. They have left highly vulnerable prisoners to languish in a highly contagious environment and wait for this disease to rip through their prison, leaving severe illness and death in its wake. The Constitution demands better. This Court should grant Petitioners’ Motions for Temporary Restraining Order and for Preliminary Injunction, preliminarily certify the proposed medically vulnerable Subclasses, and issue provisional remedies, including enlargement, in aid of its habeas jurisdiction, ordering Respondents to:
(1) enlarge to home confinement all women currently housed in the camp; (2) enlarge to home confinement all members of the medically vulnerable Subclass; and (3) implement appropriate measures to maximize social distancing and improve hygiene for the prisoners who remain at FCI Danbury for the duration of the COVID-19 pandemic.
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Dated April 30, 2020

Respectfully Submitted,
/s/ David S. Golub_______ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Telephone: (203) 325-4491 Email: dgolub@sgtlaw.com jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Telephone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu tessa.bialek@quinnpiac.edu
Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Telephone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org
Alexandra Harrington* 127 Wall Street New Haven, CT 06511 Telephone: 203-436-3532 alexandra.harrington@yale.edu
Counsel for the Petitioners Dianthe MartinezBrooks, Rejeanne Collier, Jackie Madore, and Kenneth Cassidy
*Application for Admission Pending

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Case 3:20-cv-00569-MPS Document 15 Filed 04/30/20 Page 51 of 51
CERTIFICATION OF SERVICE I hereby certify that on April 30, 2020, a copy of the foregoing Memorandum of Law in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF system. A copy of this Motion has also been served electronically this day on John B. Hughes and Michelle McConaghy of the Office of the United States Attorney for the District of Connecticut.
/s/ David S. Golub DAVID S. GOLUB

Case 3:20-cv-00569-MPS Document 15-1 Filed 04/30/20 Page 1 of 3
EXHIBITO

Case 3:20-cv-00569-MPS Document 15-1 Filed 04/30/20 Page 2 of 3
Declaration of Miranda McLaurin
1. I am currently in custody at Danbury FCI in the low security satellite prison ("FSL"). My Bureau of Prisons ("BOP") Register Number is 21032-043.
2. I am 42 years old.
3. Even before the coronavirus pandemic, the medical care at this facility has been terrible. If a person is sick, they have to go to "pill call" that day to get a sick call slip. They then fill out the slip to request an appointment with medicaL Most people are not seen for weeks.
4. Normally, there is a pharmacy tech at medical every day to pass out medicine for pill call. I believe that there is a doctor who rotates between the three facilities at Danbury all week. He is only at FSL certain days. He is an OB/GYN. There is one nurse at FSL who also rotates through the facilities. There are two psychologists who are here every day during the week.
5. Currently, medical staff is rotating through the different facilities. The medical staff are at our facility for appointments only, and they are rarely here. If it is past a certain time of the day and you have a medical emergency, you have to tell an officer what's going on and the officer will call the medical staff member who is on call that night and tell them what's happening. The medical staff member will determine ifthe person with the medical emergency needs to be taken to the hospital or not.
6. The woman in the bunk directly across from me (my " bunkie") was sick for three weeks. She was coughing up her lungs, her body was sore, she was running a fever, not eating, vomiting, and barely getting out ofbed. Some other women and I told the staff we thought she had the virus. Medical staff told her there was nothing wrong with her. She was not tested for COVID-19.
7. Staff check everyone's temperature with the same kind ofthem1ometer. There is a nurse who came to FSL on April 27th to help because the facility is short-staffed, and he called the thermometer cheap. The temperature read-out is the same for everyone.
8. On April 25th the facility tested 43 women for COVID-19 and 11 women tested positive.
9. The women who tested positive for COVID-19 were placed in the visitation room at FSL. The women who tested negative were placed in the dining room.
10. The dining room and the kitchen are in one building. It's kind of like a Popeye's restaurant, with the food served behind a line, tables in front, and the cooking area in the

Case 3:20-cv-00569-MPS Document 15-1 Filed 04/30/20 Page 3 of 3
back. The dining room has one bathroom with a toilet and a sink. There are 32 women in there now.
11. The visiting room has one shower and one toilet.
12. Some women who have been quarantined are placed in classrooms. There aren't any toilets or showers or sinks in the classrooms. Some of those women have had to wait hours before they were let out to use the restroom.
13. The facility tested people who were in contact with the woman who went to the hospital on the 241h. Anyone who was in contact with her was asked to go to a certain area. However, the facility did not ask about or test everyone who were watching tv, playing cards, or otherwise interacting with people who tested positive.
14. The same staff members are working in the dormitory and the quarantined areas.
15. A staff member came into the unit today to clean the hard surfaces with cleaning solution. We asked the staff member for cleaning supplies like soap to wash our hands and paper towels. He would not give it to us. The soap dispensers are empty right now and there aren't any paper towels for us to dry our hands on.
16. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/s/ Miranda McLaurin
April 29, 2020

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EXHIBITP

Case 3:20-cv-00569-MPS Document 15-2 Filed 04/30/20 Page 2 of 3
Declaration of Kimberly Hoisington
l_ I am currently in custody at Danbury FCI in the low security satellite prison ("FSL")_ My Bureau of Prisons ("BOP") Register Number is 11764-082.
2. This declaration supplements the declaration that I provided on April 25, 2020.
3_ On April 24th, the day the woman who bad been vomiting and dry heaving was taken to the hospital, one of the other women at FSL got a disciplinary report because she called her lawyer about the incident The officer told the rest of us that he would be listening to calls and anyone calling their lawyer would also get a disciplinary report
4_ On the afternoon of April 25th everyone at FSL was sent outside except for maybe 40 people who were going to be quarantined and tested for COVID-19_When we came back into the unit those 40 women were in Rec waiting on the testing results_
5. At 9:30pm that same evening everyone except for the 40 people was sent outside again for about an hour so that the people who were being quarantined could gather their belongings.
6. Mter I came back into the unit my name was called and a nurse was waiting for me_ I was told I needed to be tested, and at about 11 pm I was tested and came back negative for COVID- 19_The warden sent me back into the unit
7 _ Among the 40 people being quarantined, 11 people tested positive for COVID-19_They were placed in the visiting room for isolation. The other 30 or so people, who tested negative, were placed on cots in the dining hall for quarantine.
8_ The dining hall is where we would eat for mealtimes before our meals started to be brought into the dormitory. It is connected to the kitchen. Now we stand in line and have the meals handed out to us in the dorm.
9_ The dining hall has two doors, but one is kept locked. The dining hall has one bathroom with one toilet and one sink There is no shower. A trailer that has showers and toilets was brought down from Camp for the people in the dining halL
10_The visiting room has three bathrooms. Two have two toilets and two sinks_ The third has one toilet, one urinal, and two sinks. When I was there earlier this month there was only one shower, which was in the third bathroom. It was a temporary stand-up stall built out of two by fours.

Case 3:20-cv-00569-MPS Document 15-2 Filed 04/30/20 Page 3 of 3
11. In addition to the women in the dormitory, dining hall, and visiting room, there is one woman in the library. The library does not have heat and is often so cold you can see your breath.
12. There are also two to three women in each education room.
13. On April28t\ around lunchtime we were all sent outside and told to wait in line by the back door ofRec. We were brought through the door two at a time, and medical staff took our temperature and asked whether we were having symptoms like coughing, sore throat, fever, body pains, etc. I said no. I am very weak still but not having any of those other symptoms. We were all sent back into the unit.
14. I worry that people in the unit could still be positive and getting other people sick because several of the women tested positive for COVID- 19 and were isolated had absolutely no symptoms.
15. I have reviewed the information contained in this declaration. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/s/ Kimberly Hoisington
April 29, 2020

Case 3:20-cv-00569-MPS Document 15-3 Filed 04/30/20 Page 1 of 3
EXHIBITQ

Case 3:20-cv-00569-MPS Document 15-3 Filed 04/30/20 Page 2 of 3

Declaration of Shannon Battle

1. I am currently in custody at Danbury FCI in the low security satellite prison ("FSL"). My Bureau of Prisons ("BOP") Register Number is 13335-036.

2. I am 40 years old. I have issues with liver disease and obesity.

3. In February there were a handful of women at FSL that became very ill. Some of them were in bed for weeks. They put in requests to see medical. Some were seen if they had breathing issues. No one received treatment.

4.

We

were

still

in

programming

through

March

21

51 •

5. Around that time staff started to wear masks and carry hand sanitizer.

6. Hand sanitizer was out of stock at the commissary and remains out of stock.

7. A few weeks later we were given masks.

8. The facility started quarantining people after a woman here was taken to the hospital at the end of March and tested positive for COVJD- 19. She had tested negative when she was tested at the facility.

9. After she went to the hospital, a couple of other women were sick on the unit. One of their temperatures was 103 degrees. She was told to take aspirin. A couple of days later the woman with the high temperature and her bunkmate, who was also sick, were put into quarantine in the visiting room. When the woman who went to the hospital returned to the facility, she was also placed in the visiting room.

10. When the rest of the women in the unit went to that building for pill line they were in contact with the women in the visiting room who tested positive.

11. On April 241h a woman at FSL was deathly ill. She was taken to the hospital after gagging and puking for hours.

12. On April251h around noon we were all asked to go outside so that the facility could test the people who slept close to the woman who went to the hospital. They tested about one fourth of the population. Out of that one fourth, a quarter tested positive for COVID-19.

13. While they were doing testing and waiting for results, the women who tested negative and those who tested positive were sitting together. They were also coming into the unit where everyone else was to get their belongings.

14. At 9pm that evening we were asked to go outside so the women who were being quarantined could come into the unit and take showers and use the phones.

Case 3:20-cv-00569-MPS Document 15-3 Filed 04/30/20 Page 3 of 3

15.

Since

Ap

ri

l

2

5

1 \

the women who tested positive for COVID- 19 (about 10-11 people)

have been in the visiting room. The women who tested negative (about 30 people) are in

the chow hall (dining room), which is connected to the kitchen. There is also an open dish

room window that c01mects the dining hall to the dish room in the kitchen.

16. That night (ofthe 25th) one of the women who was in the chow ball was sent to the hospital and tested positive for COVID-19. As far as I know, she is still at the hospital.

17. Another woman who was housed with the woman who went to the hospital was working in the kitchen the day (the 26th).

18. The dining room and visiting room have bathrooms. There is a portable shower outside the dining room for the people there.

19. There were also three women in the education rooms-there are three separate education rooms, all of which are very small-and one woman in the library. These rooms do not have running water. The women in these rooms had to walk through the halls to the bathrooms, which are in the same place where we all go for pill line. The woman in the library is sometimes taken to the portable shower (same as used by those in the dining room) to shower.

20. On April 29th the women in the education rooms and the library were moved to the special housing unit (SHU) in the FCI building.

21. The clothes ofwomen in quarantine are taken by prisoners and staff to be washed in the washers and dryers here in the unit we are all housed in. The prisoners do not have gloves to wear while they are doing this. The washer and dryer units are not being sanitized afterwards.

22. The staff are moving between the donnitory unit and the different quarantine rooms. The women here also move between the different buildings to go to pill line.

23. I am very concerned for our welfare here.

24. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.

Is/Shannon Battle April29, 2020

Case 3:20-cv-00569-MPS Document 15-4 Filed 04/30/20 Page 1 of 4
EXHIBITR

Case 3:20-cv-00569-MPS Document 15-4 Filed 04/30/20 Page 2 of 4
Declaration of Kimberly Kitts
1. I am currently in custody at Danbury FCI in the low security satellite prison (FSL). My Bureau ofPrisons (BOP) Register Number is 01234-138.
2. I am 52 years old.
3. I am serving 87 months for wire fraud. My release date is set for July 1, 2025.
4. I am housed in a dormitory at FSL with about 160 women (base count as of 4/24/2020 168).
5. On April 24th, a woman in our dormitory was very ill and was taken by ambulance to the hospital after several hours of vomiting and dry heaving.
6. The next day, 43 women who were determined to have had very recent contact with the sick woman were removed from the dormitory to be tested and quarantined. Before they were removed, they were coming in and out of the dormitory to get their personal property, use the phones, use the computers, use the bathrooms and take showers. The showers and other common areas were not cleaned after this happened.
7. These 43 women were tested for COVID-19, and 10 of them tested positive.
8. One of the women who was taken to quarantine was later taken by ambulance to Danbury Hospital on April 26th. She had tested negative for COVID-19 the day before when all of the quarantined women were tested. She tested positive for the virus at the hospital.
9. The quarantined women were split into two groups. The 33 who had tested negative were sent to sleep in the dining hall which is adjacent to the facility ' s kitchen. The 10 who tested positive, were sent to sleep in the visitation room. With the exception of the one lady who was removed to the hospital on the 26th, the remaining 32 women remain in the dining hall and 10 in the visitation room.
10. The dining hall is adjacent to the kitchen where all of the FSL meals are prepared. The floor is concrete and under normal conditions, it holds 40-50 inmates for a meal. Now, it needs to sleep 32 inmates since the one was taken out on the 26th.
11. The visitation room has 4 spring beds and the rest of the women in that room sleep on mattresses on the floor. There is one bathroom for their use with a sink and toilet and a makeshift shower stall has been put into the room. There is one phone in the room for their use. There is no computer access and there is a TV with DVDs only and no current news or information access.
12. The dining hall windows have been covered in a way where no natural light can get into the dining hall. When the women were initially sent to the dining room, there were not enough cots

Case 3:20-cv-00569-MPS Document 15-4 Filed 04/30/20 Page 3 of 4
for everyone, so many slept on the concrete floor with only blankets. There is heat but I am told it is very cold in the room. There is one bathroom they have access to with a toilet and sink only. Mobile showers were put outside for these women to use which they need to be allowed out of the dining hall to use. I am told there is no schedule for this and the number of showers is limited to 3 or 4 stalls.
13. The ladies in the dining hall have no access to television, computer or phone. Until Monday midday they were not given cleaning supplies, paper towels, toilet paper (other than the couple of rolls in the bathroom), feminine pads/tampons, envelopes, cop outs and more. I was in the Counselor's office on Monday when those items were being given to an officer to deliver to the dining hall. They were given commissary sheets and were shopped. Their items will be delivered today, Wednesday.
14. The visitation room has heat and the windows are not currently covered, so they do get natural light.
15. There is a women who was removed to the hospital around 2pm April23rd via ambulance. She tested negative for COVID-19 at the hospital and was returned to the GED room alone that same evening. She had access there to share the toilet with the other quarantine rooms in the other warehouse. On the 25th, she was moved to the library which has no heat, no running water, no access to phone, TV, computer, toilet or shower. The floor is concrete and she must sleep on a desk. She has to be brought by an officer to use the bathroom and shower in the san1e shared facilities she used on the 23rd and 24th. It's not a short walk. She has been allowed one shower since the 23rd. My understanding is that she has had multiple surgeries for cancer and currently has two growths that are going untreated. She also has a chest tube.
16. Since the women have been in the dining hall, several have repeatedly been in the dormitory to use the phones and computers for email. On the morning of April 26th, I saw one of the quarantined women getting into the shower, another on a phone and one sat next to me to use a computer. This activity continued throughout the day. I have seen little oversight over how laundry gets passed between the rooms where people are quarantining and the dormitory.
17. The same staff including officers, medical and administrative personnel move among the various quarantine rooms and dormitory throughout their shifts.
18. On April 27th, one of the other women discovered a bag of outgoing mail from prisoners in the trash. We place our outgoing mail into a locked box in the unit. The box has to be unlocked by an officer in order to be removed. I saw the mail some of the envelopes and there were address labels and names of inmates on the mail that was found. The woman who discovered the mail brought it to the officers station. I have no additional information.
19. On April 28th, all of the women in the dormitory were sent outside to the Rec Yard. We were brought back into the inside Rec Area one by one. I was the first to be called back in. When I

Case 3:20-cv-00569-MPS Document 15-4 Filed 04/30/20 Page 4 of 4
came in, medical stafftook my temperature, which registered at 98 degrees. Another of the medical staff asked me questions to screen for COVID-19 risk. The staff told me they were not testing anyone unless they said they had symptoms of cough, diarrhea, fatigue, muscle aches or intestinal issues. I told them about my Crohns Disease and symptoms. I was given lunch and told to go into the unit and eat. I was not tested.
20. After everyone had their temperatures taken and were asked the screening questions, no one else presented with a temperature above normal either. No one admitted to any symptoms. No one was tested and no additional people were removed from the unit as of today.
21. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
Is/ Kimberly Kitts
April 29, 2020

Case 3:20-cv-00569-MPS Document 15-5 Filed 04/30/20 Page 1 of 3
EXHIBITS

Case 3:20-cv-00569-MPS Document 15-5 Filed 04/30/20 Page 2 of 3
Declaration of Christina Korbe
I . I am currently in custody at Danbury FCI in the low security satellite prison ("FSL"). My Bureau of Prisons ("BOP") Register Number is 30233-068.
2. This information supplements my earlier declaration dated April26, 2020.
3. On April 261\ 2020 one of the women who had been quarantined the day before went to the hospital by ambulance.
4. On the morning of April271h some of the women who were in quarantine and tested negative ran into the unit and gathered more personal belongings. Some of them used the phones and computers for email. Some of them used the shower. They then went back into quarantine. They were able to do this because they were not being monitored.
5. The women who were quarantined and tested positive are being held in the visiting room.
6. The women who were quarantined and tested negative-about 30 people-are in the dining hall. This is a room about 60x30' in size. There are bathrooms in the dining hall, and the facility brought in a porta-shower truck for them to use to shower. Yesterday they put in a phone for them to use and got them cleaning supplies.
7. Staff members are moving between all of the different areas of the facility where women are quarantined and the dormitory.
8. Since April l81h prisoners have been working in the kitchen. This is when we started getting our meals in the unit instead of the dining hall. Prisoners who are working in the kitchen had been working side-by-side with a prisoner who tested positive for COVID-19 on April25111• None of them have been tested or removed from where they are since that woman tested positive.
9. On April 27th, a new prisoner was brought into the FSL. She was placed in quarantine in the other building where the kitchen, visiting, and education rooms are.
10. On April 27111, the woman who had been sent to the hospital on April 241h was brought back to the facility and placed in the visitation room with the other people who have tested positive for COVID-19.
11. On April28111 the staff took everyone' s temperature and asked us if we had shortness of breath, cough, body aches, fever, sore throat, diarrhea, or chills. We were then given a personal pizza for lunch and sent to eat in the dorm. No one was taken into quarantine.

Case 3:20-cv-00569-MPS Document 15-5 Filed 04/30/20 Page 3 of 3
12. On April291h the women who were in quarantine in the classrooms and the library (some of whom had been in quarantine before being released to home confinement) have been moved to the special housing unit at FCI (the men's facility).
13. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/s/ Christina Korbe April 30, 2020

Case 3:20-cv-00569-MPS Document 15-6 Filed 04/30/20 Page 1 of 2
EXHIBITT

Case 3:20-cv-00569-MPS Document 15-6 Filed 04/30/20 Page 2 of 2
Second Declaration of Dianthe Martinez-Brooks 1. I am currently in custody at Danbury FCI in the minimum security women's camp (the
"Camp." My Bureau of Prisons ("BOP") Register Number is 71331 -050. 2. Staff did not take the temperatures of the women in the camp on April27, 28, or 29. 3. One of the women in the camp is pregnant. She was placed in quarantine on April6,
2020 in D Dorm and told she would be leaving on April28, 2020. However, she was then told that she would not be leaving until May 11, 2020. 4. I am aware of multiple women at the camp who were told they would be leaving for home confinement and even given dates for their departure but then later told they are ineligible for home confinement based on the new criteria being used. 5. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
Is/ Dianthe Martinez-Brooks April 30, 2020
1

Case 3:20-cv-00569-MPS Document 15-7 Filed 04/30/20 Page 1 of 2
EXHIBITU

Case 3:20-cv-00569-MPS Document 15-7 Filed 04/30/20 Page 2 of 2
--------------

DANBURY INMATE BULLETIN

Subject: from:

Cmeria for Home Confinement based on COVlD-1~ Guideline~
1/s//
D. t::aster, Warden

Date:

April 16, 2020

Current criteria for Home Confmement based on COVID-19 euidelines:
• Primary or prior offt.-nsc ~~ not a sex offcn:ic • Primary or prior offense is not terrorism • Primrtry of prior offenw if not violent • No detainer • Mcntallfcalth Care LL~el i!> less th.!n CARE·MH 4
• PATIERN risk score is MINIMUM
• No incident reports in the p:tst 1] months {rPgardlesc; of severity levP.I) • U.S. Citizen • Viable Rele<lse Plim
Other considerations:
• Age • Projected Release Date • Percentaee of time served • Medical Care Level
• Vldtms .n tas.c • Arrival date to Danbury • Gang.related activity • HPalth c;onc.P.mc; of re!iident{s) in proposed rclcas(~ plan • MedicCJI needs/c.orn;crw. in the commur ity
Unit TeJm is expeditiously working \O proc~sc; r.eferrals under thP CARES Act. We have already had some relcas~s and new ddtes are appearing daily. Currently. we have a total of 11 individuals releasing Aprill9- April 25, 2020.
n F-or the week of April 26- May 2. 2020, we c:urrPntly have rPif'aSPs. ThP 27 releases are inclusive of
all releases. Note new RRC and home confinement dates are appearins daity.
We are working of the third edition of releases. Your unit team will be getting with you 1f you are
eligibie based on the critPria above. The plan is provide regular update~ on the number of releases.

Case 3:20-cv-00569-MPS Document 15-8 Filed 04/30/20 Page 1 of 2
EXHIBITV

Case 3:20-cv-00569-MPS Document 15-8 Filed 04/30/20 Page 2 of 2 - - - - - - - - - - -- -- - - - -

DANBURY INMATE BULLETIN

Subject: Fwm:

Updated Criteria for Home Confmemcnt based on COVI0-19 Guidelines
1/s//
0. Easter. Warden

Date:

April 21. 2020

Updated <riteria tor HomP. Confinement based on COVI0-19 gui-dt!line~:
Th~ following criteria must be met wnE>n making COV!D- I !J referrals for Home Confir~m~nt
1} Primary Offense •s not v1olent:
2} Primary Offpn!;e tS not SPX offen~e; 3) Primary Offense is not terron~m.: 4) No de1amer. S) Mt.·ntal Health Care Level i!> le~s than IV
6} PATIERN r"s'k score is MIN 7} No 11\ddent Reports in the past 12 mo':"lths. 8) Inmate must have s.etVed at least SO% of their sentence
f or tho'>~' inmates pr~iOU'!ily rPtPf"red wtlo d•d not meet the c:rttE!fl i1 and t·;;vc a ~JP.flt DST in SfNTRY;
The DSCC is rf:rlacing RRC/HC datt?S to W -CCC-ACT
If an mmate wac; prev1ously reterrea, cmd ha~ had their DST date ch.lnged or revrert~d bade tow CCC
ACT: It will be ~iewed agarn at the SO% d<~le.

 
 Case 3:20-cv-00569-MPS Document 26 Filed 05/07/20 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER, JACKIE

:

MADORE and KENNETH CASSIDY, :

Individually, and on behalf of all others :

similarly situated,

:

:

Petitioners,

:

:

v.

:

:

D. EASTER, Warden of Federal

:

Correctional Institute at Danbury, and

:

MICHAEL CARVAJAL, Director of the :

Federal Bureau of Prisons, in their official :

Capacities

:

:

Respondents.

:

No. 3:20-cv-569 (MPS)

PETITIONERS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PROPOSED ORDER
Petitioners submit this memorandum and proposed Order in follow up to the May 6, 2020 hearing in this case. Petitioners have now consulted with counsel for Respondents and submit this Memorandum to advise the Court of the results of those discussions and to submit a proposed order (attached hereto as Exhibit A) based on those discussions and recent developments in Wilson v. Williams, No. 4:20-CV-00794 (N.D. Ohio). I. List of Medically Vulnerable Prisoners
As requested by the Court, counsel for Petitioners consulted with counsel for Respondents about the definition of the Subclass of medically vulnerable prisoners and the process of compiling a list of such Subclass members. Petitioners and the Government have

1

Case 3:20-cv-00569-MPS Document 26 Filed 05/07/20 Page 2 of 5
agreed that the Subclass shall be defined on the basis of conditions specifically identified by the
CDC as putting such individuals at higher risk for severe illness from COVID-19.
Consistent with CDC Guidance, Petitioners propose that the medically vulnerable
Subclass be defined as follows:
All individuals in custody at FCI Danbury, while the threat of COVID-19 at the facility remains, who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.
These conditions are covered by the CDC’s publication, People Who Are at Higher Risk for Severe Illness, attached as Exhibit B.1
Plaintiff’s expert, Dr. Jaimie Meyer, has compiled a list of the CDC conditions and
corresponding ICD-9 and ICD-10 codes. See Exhibit C. The parties have agreed that, as a first
step in compiling the list of Subclass members, the BOP will search for these codes in the
medical records of all prisoners at FCI Danbury. The search through medical records will include
but will not be limited to the “health problem lists” that appear in the medical records of each
prisoner. The parties have further agreed that Petitioners shall have the right thereafter to seek to
add individuals to such list of Subclass members based on outside medical records or other
evidence of relevant medical conditions meeting the criteria for the Subclass.
1 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. 2

Case 3:20-cv-00569-MPS Document 26 Filed 05/07/20 Page 3 of 5
II. Proposed Order as to the Medically Vulnerable Subclass Petitioners’ Proposed Order, attached as Exhibit A, addresses the proposed Subclass
definition, the compilation of the list of Subclass members, and a process for transfer of Subclass members to home confinement.
At the hearing on Petitioners’ Motion for a Temporary Restraining Order, Petitioners referenced the order entered on April 22, 2020 by the court in Wilson v. Williams, No. 4:20-CV00794, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020). Subsequent to the hearing in this matter, the Bureau of Prisons filed a status report in Wilson which, Petitioners believe, reflects a complete failure by the BOP in that case to identify in good faith medically vulnerable prisoners at Elkton eligible for transfer or to implement meaningful transfers of the medically vulnerable subclass.2 Most saliently, although the BOP identified 837 medically vulnerable prisoners at Elkton, as of the date of its report it had initiated community placement for only 5 such medically vulnerable individuals and was pursuing further evaluation of 72 others. The remaining 760 prisoners (almost 91% of the class) were deemed by the BOP “not appropriate for home confinement at this time.”3
In light of BOP’s failure to implement the order in Wilson in a meaningful manner, Petitioners respectfully request that this Court enter a more self-executing Order. Petitioners believe that any such Order should presume eligibility of the members of the proposed medically vulnerable Subclass at FCI Danbury for transfer to home confinement absent a showing by the BOP that such Subclass member presents a serious danger to the safety of the community, to be
2 The BOP’s status report in Wilson is attached hereto as Exhibit D; Petitioners’ responsive Emergency Motion for Enforcement of the Preliminary Injunction is attached hereto as Exhibit E. 3 According to its submission, the BOP also determined that only a single one of the 243 medically vulnerable prisoners who had applied for compassionate release met the criteria for such release. The BOP further advised the court that it was not even considering furlough as a stand-alone basis for release from Elkton.
3

Case 3:20-cv-00569-MPS Document 26 Filed 05/07/20 Page 4 of 5
evaluated exclusively based on specific criteria to be set forth in the Court’s Order, or has no suitable place for home confinement. See Proposed Order ¶¶ 3-4. Further, the Order shall set forth a mechanism to adjudicate disputes concerning Subclass member suitability for home confinement. Id. ¶ 8. III. Proposed Order as to the Class
Petitioners further request that this Court enter Orders directing that Respondents identify members of the Class (who are not members of the medically vulnerable Subclass) who are eligible for home confinement, and that, consistent with the April 3, 2020 Memorandum from Attorney General Barr, in making such eligibility determinations, the percentage of sentence the prisoner has served or the and length of the Class member’s remaining sentence shall not be a factor. Petitioners further request an Order directing transfer to home confinement for the members of the Class so identified. IV. Discovery Orders
Finally, Petitioners request that the Court enter Orders directing Respondents to provide specific information about the testing that has been performed to date on both prisoners and staff at FCI Danbury, and the medical staffing coverage at the prison and further to order an expert inspection of the facility during the week of May 11 or as soon thereafter as practicable as agreed by the parties.
4

Case 3:20-cv-00569-MPS Document 26 Filed 05/07/20 Page 5 of 5

Dated May 7, 2020

Respectfully Submitted,
/s/ David S. Golub_______ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Telephone: (203) 325-4491 Email: dgolub@sgtlaw.com jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Telephone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu tessa.bialek@quinnipiac.edu
Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Telephone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org
Alexandra Harrington* 127 Wall Street New Haven, CT 06511 Telephone: 203-436-3532 alexandra.harrington@yale.edu
Counsel for the Petitioners Dianthe MartinezBrooks, Rejeanne Collier, Jackie Madore, and Kenneth Cassidy
*Application for Admission Pending

5

Case 3:20-cv-00569-MPS Document 26-1 Filed 05/07/20 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER, JACKIE

:

MADORE and KENNETH CASSIDY, :

Individually, and on behalf of all others :

similarly situated,

:

:

Petitioners,

:

:

v.

:

:

D. EASTER, Warden of Federal

:

Correctional Institute at Danbury, and

:

MICHAEL CARVAJAL, Director of the :

Federal Bureau of Prisons, in their official :

Capacities

:

:

Respondents.

:

No. 3:20-cv-569 (MPS)

PROPOSED ORDER Having considered Petitioners’ Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Request for Emergency Order of Enlargement (ECF 1), Petitioners’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction and accompanying memorandum and supporting exhibits (ECF 14, 15), and the Respondents’ Motion to Dismiss the Petition for Writ of Habeas Corpus and Opposition to Petitioners’ Motion for a Temporary Restraining Order and Preliminary Injunction and accompanying memorandum and supporting exhibits (ECF 24), and having held a hearing on May 6, 2020, Petitioners’ Motion for Temporary Restraining Order and Request for Emergency Order of Enlargement is granted in part as follows:

1

Case 3:20-cv-00569-MPS Document 26-1 Filed 05/07/20 Page 2 of 5
I. As to the Subclass of Medically Vulnerable Prisoners:
(1) The following Subclass of “medically vulnerable” prisoners is certified for
purposes of this order:
All individuals in custody at FCI Danbury, while the threat of COVID-19 at the facility remains, who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.
(2) Respondents shall identify by no later than May 12, 2020 a list of all members of the
Subclass, and shall file that list with the Court by such date, along with a declaration setting forth
the process used for identification of the Subclass, including a description of the databases
searched. The parties shall meet and confer as needed and file with the Court any disputes
regarding proper membership in the Subclass.
(3) All members of the Subclass shall be transferred from FCI Danbury to home
confinement no later than May 19, 2020 unless a Subclass member presents a serious danger to
the safety of the community or has no suitable home confinement location.
(4) In determining whether a Subclass member cannot be transferred from FCI Danbury
to home confinement because such Subclass member presents a serious danger to the safety of
the community, Respondents shall consider only the following factors:
a. The seriousness of the Subclass member’s violent prior criminal history;
2

Case 3:20-cv-00569-MPS Document 26-1 Filed 05/07/20 Page 3 of 5
b. The seriousness of the Subclass member’s violent disciplinary history within the last two years.
(5) By no later than May 15, 2020, Respondents shall provide Petitioners’ counsel and file with the Court a list of any members of the Subclass that Respondents object to transferring to home confinement pursuant to paragraph 3 and shall specify the reasons for each objection.
(6) By no later than May 17, 2020, Petitioners shall file with the Court responses to Respondents’ objections.
(7) By no later than May 19, 2020, the parties shall meet and confer to try to resolve any disputes and shall provide to the Court a list of those Subclass members as to whom there is no agreement regarding transfer to home confinement.
(8) The Court shall, with input from the parties, establish a process for resolving any disputes. II. As to the Class of Prisoners at Danbury:
(9) The following Class is certified for purposes of this order: All prisoners at FCI Danbury who are not part of the medically vulnerable Subclass.
(10) By no later than May 24, 2020, Respondents shall identify and file with the Court a list of all prisoners at FCI Danbury who are suitable for home confinement. Respondents shall make this determination based on the criteria contained in Attorney General Barr’s April 3 Memorandum for the Director of Bureau of Prisons. The percentage of the sentence served by the prisoner and the length of time remaining on the prisoner’s sentence shall not be factors considered in the determination as to suitability for home confinement.
(11) By no later than June 8, 2020, Respondents shall transfer to home confinement all those prisoners at FCI Danbury identified as suitable for home confinement.
3

Case 3:20-cv-00569-MPS Document 26-1 Filed 05/07/20 Page 4 of 5
III. As to all Petitioners: (12) Respondents shall provide within 24 hours of this Order a description of the medical
staffing coverage for prisoners at FCI Danbury including (a) the number of medical staff working at FCI Danbury; (b) the degrees or certificates held by each staff member; (c) the role that each staff member is playing in caring for prisoners at FCI Danbury; (d) the staffing coverage schedule for medical staff at FCI Danbury for each of the previous three weeks; (e) the staffing coverage schedule planned for the next week; (f) the protocol for monitoring those who have tested positive for COVID-19 and/or who are exhibiting symptoms of COVID-19; and (g) the protocol used for determining when a prisoner needs to go to the hospital.
(13) Respondents shall provide within 24 hours of this Order the following information about each prisoner tested for COVID-19 at FCI Danbury (listing prisoners by unique identifiers but not names): (a) the number of tests performed on the prisoner; (b) the date each test was performed; (c) the type of test used (i.e., Abbot “ID NOW” machine versus PCR); (d) the results of each test; (e) the facility and unit where the prisoner tested was housed at the time of the test; and (g) for those who have tested positive, the current specific location of the prisoner including whether the prisoner remains in isolation.
(14) Respondents shall provide within 24 hours of this Order the following information about COVID-19 testing of staff employed at FCI Danbury: (a) the protocol for testing staff who have been exposed to COVID-19 and/or are exhibiting symptoms of COVID-19; (b) the number of staff members who have been tested for COVID-19; and (c) the availability of COVID-19 testing for staff at FCI Danbury.
(15) Respondents shall permit Petitioners’ expert to inspect FCI Danbury during the week of May 11, 2020 or as soon thereafter as is practicable.
4

Case 3:20-cv-00569-MPS Document 26-1 Filed 05/07/20 Page 5 of 5 (16) The Court shall hold a hearing on Plaintiff’s motion for preliminary injunction on _________. Dated at _______, Connecticut, this __ day of May, 2020.
__________________________ Michael P. Shea United States District Judge
5

5/7/2020

Case 3:20-cv-00569-MPPSeopleDWohcouAmre aetnHtig2he6r -R2isk fForiSleedver0e 5Ill/n0es7s/|2C0DC Page 1 of 2

Coronavirus Disease 2019 (COVID-19)
People Who Are at Higher Risk for Severe Illness
COVID-19 is a new disease and there is limited information regarding risk factors for severe disease. Based on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.
Based on what we know now, those at high-risk for severe illness from COVID-19 are:
People 65 years and older People who live in a nursing home or long-term care facility
People of all ages with underlying medical conditions, particularly if not well controlled, including:
People with chronic lung disease or moderate to severe asthma People who have serious heart conditions People who are immunocompromised
Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune de ciencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications People with severe obesity (body mass index [BMI] of 40 or higher) People with diabetes People with chronic kidney disease undergoing dialysis People with liver disease

 Older Adults

 People with Asthma

 At Risk For Severe Illness

 People with HIV

 People with Liver Disease

COVID-19: Are You at Higher Risk for Severe Illness?

Resources
ASL Video Series: COVID-19: Are You at Higher Risk for Severe Illness? Learn how you can help protect yourself if you are at higher risk of severe illness from COVID-19 

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html

Page last reviewed: April 15 2020
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5/7/2020

Case 3:20-cv-00569-MPPSeopleDWohcouAmre aetnHtig2he6r -R2isk fForiSleedver0e 5Ill/n0es7s/|2C0DC Page 2 of 2

Page last reviewed: April 15, 2020

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html

2/2

Case 3:20-cv-00569-MPS Document 26-3 Filed 05/07/20 Page 1 of 1

CDC-defined high risk conditions Age ≥ 65 years old Chronic lung disease Moderate to severe asthma COPD Emphysema Chronic bronchitis Idiopathic pulmonary fibrosis Cystic fibrosis Immunocompromised Transplant recipient On chemotherapy HIV Prolonged use of corticosteroids Use of immunosuppressive medication Immune deficiency Severe obesity (BMI ≥ 40) Type I diabetes mellitus Type II diabetes mellitus Gestational diabetes mellitus Chronic kidney disease on dialysis Chronic liver disease, cirrhosis Serious heart conditions Congestive heart failure Coronary artery disease Congenital heart disease Cardiomyopathies Pulmonary hypertension

ICD-10 codes not available

ICD-9 codes converted

J45.4 and J45.5 J44.9, J44 J43 J41, J42 J84.112 E84

49300, 49310, 49390 49122, 49121, 496, 49120 4920, 4928 4918, 4919
516.31 27702

Z48.290, Z94.81, Z48.2, D84.9, Z94.9 Z92.21, Z51.1, T45.1X5A B20, Z21 Z79.52 Z92.25 D81, D80, D84.1, D84.9 E66 E10 E11 O24.4 N18.4, N18.5, Z99.2 K74, K70.3,

V42, V5844, 996.85 V87.41
42 V58.65 V8746 2792, 27903, 27900, 2793, 2798 27801, 27800, 27803 25081, 25003, 25091, 25001 25020, 25042, 25002, 25080 64881, 64883, 64884 5854, 5855, 5856, 5859 5715, 5712

I50.2, I50.3, I50.4 I25 Q24.9 I42, I43 I27.0, I27.2

4281, 42822, 42830, 42832, 4280, 4289, 42842 414
7469 4254, 4255, 4259, 42511, 4258 4160, 4168

Case 3:20-cv-00569-MPS Document 26-4 Filed 05/07/20 Page 1 of 7
EXHIBITD

CCasaes:e43:2:200--ccvv--0000759649--JMGPSDocD#o:c4u9meFnilte2d6: -405/F0i6le/2d0051/0o7f /62.0 PaPgaegIeD2#o: f678

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 5, 2020 Order, ECF No. 45, Respondents respectfully submit the following status report, informing the Court of BOP’s compliance with the Court’s April 22, 2020 preliminary injunction that requires Respondents to identify within one day all members of a preliminary “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) and 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 within two weeks.
As ordered by the Court, BOP compiled and publically filed a list of 837 Elkton inmates who are over the age of 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. (ECF No. 35-1)

CCasaes:e43:2:200--ccvv--0000759649--JMGPSDocD#o:c4u9meFnilte2d6: -405/F0i6le/2d0052/0o7f /62.0 PaPgaegIeD3#o: f679
Even before the Court issued its preliminary injunction, the BOP was evaluating, and continues to evaluate, all of the approximately 170,000 federal inmates’ eligibility for transfer to home confinement, consistent with the directives from Congress and the Attorney General and is also working to consider requests for “compassionate release” pursuant to statutory and regulatory requirements. The BOP has undertaken this review at Elkton and, in the interest of expediting the review, has provided additional staff from other BOP institutions and offices to assist Elkton’s Case Management Coordinator’s Office with the evaluation of the inmates on the list of “medically vulnerable” inmates as defined by the Court for release through the methods identified by the Court. The BOP’s compliance with this Court’s order is described more fully below.
I. Home Confinement The BOP has the authority to transfer an inmate to home confinement for the remainder of his sentence pursuant to the provisions and limitations set forth in 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, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub.L. 116-136, Attorney General Memoranda dated March 26, 2020 and April 3, 2020, and BOP Memorandum dated April 15, 2020. As noted above, even before the Court issued its preliminary injunction, the BOP was evaluating the eligibility for home confinement of all inmates throughout the United States. The BOP has continued that evaluation, including at Elkton, and as of May 5, 2020, BOP has evaluated the eligibility for home confinement of all of the inmates from the list of “medically vulnerable” inmates as defined by the Court. As of May 5, 2020, five inmates are pending community placement. Another 72 inmates are being further evaluated for eligibility for home
2

CCasaes:e43:2:200--ccvv--0000759649--JMGPSDocD#o:c4u9meFnilte2d6: -405/F0i6le/2d0053/0o7f /62.0 PaPgaegIeD4#o: f6780
confinement. The remaining inmates identified on the list are not appropriate for home confinement at this time.
II. Compassionate Release The BOP does not have the authority to grant “compassionate release,” but 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 of 18 U.S.C. §§ 3582 and 4205(g). 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 exhaustion of administrative remedies, or 30 days from the date the Warden receives such a request from the inmate, whichever is earlier. The sentencing court makes the ultimate decision whether to grant compassionate release. As of May 5, 2020, 243 inmates on the list of “medically vulnerable” inmates as defined by the Court have submitted a request for compassionate release to the Warden. The BOP has evaluated those requests. Only one inmate of that group met the criteria for compassionate release. The BOP is currently working on a release plan for that inmate. The remaining inmates who submitted requests did not meet the criteria for compassionate release. The large majority of the remaining inmates on the list have not submitted requests for compassionate release; consequently, BOP lacks information required by regulation to complete the assessment. However, BOP has identified six inmates on the list who, although they have not formally requested compassionate release, BOP is currently considering pending further review.
3

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Among other things, inmates are required to submit a release plan with their request. See 28 C.F.R. § 571.61. A release plan is a critical part of BOP’s evaluation of a compassionate release request; release plans are highly individualized and developed by the inmate with assistance from BOP social workers and include information regarding where the inmate will reside, how the inmate will support himself, and where the inmate will receive medical treatment and how he will pay for such treatment. Without this information submitted to the Warden along with the inmate’s request, the BOP is unable to assess the inmate for eligibility for compassionate release. And absent a request, BOP also cannot know whether a particular inmate even desires to seek compassionate release. If additional Elkton inmates, including inmates on the list of “medically vulnerable” inmates as defined by the Court, submit requests for compassionate release, BOP will review and act on their requests as quickly as feasible.
III. Inmate Furloughs and Supervised Release 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. The issuance of furloughs is within the sole discretion of the BOP, and delegated to the Warden of each institution. Furloughs are being considered in conjunction with other avenues of transfer or release in an effort to expedite the transfer of inmates nearing the end of a sentence. Furloughs are not being used as a stand-alone basis for release from an institution. The BOP has no legal authority to “release” inmates via parole or community supervision. Supervised release is a form of post-imprisonment supervision, although similar to parole, a term of supervised release does not replace a portion of the sentence of imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the sentencing court. See eg. United States v. Reese, 71 F.3d 582, 587 (6th Cir. 1995) ("supervised
4

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release is ... a sentence in itself ..."). IV. Updated COVID-19 Data From Elkton The BOP’s considerable efforts to protect inmates at Elkton and throughout the United
States from the COVID-19 pandemic are showing positive results. The following information is accurate as of May 5, 2020. Testing – On April 16, 2020, Elkton received an Abbott testing machine and 250 testing cassettes. The Abbott machine was removed on April 21, 2020. A second Abbott machine was delivered on April 29, 2020, with an additional 250 test cassettes. Elkton is currently testing all inmates in quarantine who are pre-release. These inmates are generally asymptomatic. Elkton Health Services have coordinated with an outside laboratory to complete mass testing. That is pending approval. With approval, that testing could be immediately available to the institution. Protective Equipment – Inmates were provided two surgical masks initially, and an additional two cloth masks when they became available. Quarantine – Currently there are 36 inmates in quarantine at the main facility and six inmates in quarantine at the Satellite Camp. Hospitalizations – 20 Inmates remain hospitalized or in rehabilitation facilities. No new inmates have required hospitalization since May 2, 2020. 8 inmates in hospitalization are intubated. This number has remained stable.
5

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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 E. 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
6

Case 3:20-cv-00569-MPS Document 26-5 Filed 05/07/20 Page 1 of 12
EXHIBIT E

CCasaes:e43:2:200--ccvv--0000759649--JMGPSDocD#o:c5u1meFnilte2d6: -505/F0i6le/2d0051/0o7f /1210. PPaaggeeID2 o#f: 16293

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

CCasaes:e43:2:200--ccvv--0000759649--JMGPSDocD#o:c5u1meFnilte2d6: -505/F0i6le/2d0052/0o7f /1210. PPaaggeeID3 o#f: 16294
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
2

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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

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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

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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

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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).
6

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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.
7

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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

CCaassee: 43:20-cv-00759649-JMGPSDoDc o#c:u5m1eFnitle2d6:-505F/0il6e/d20059/0o7f/2101. PPaaggeeI1D0#o:f71021 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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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

CCasaes:e43:2:200--ccvv--0000759649--JMGPSDocD#o:c5u1meFnilte2d6: -505/F0i6le/2d0051/107o/f2101. PPaaggee1ID2 o#f: 17203 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 3:20-cv-00569-MPS Document 27 Filed 05/11/20 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER, JACKIE

:

MADORE and KENNETH CASSIDY, :

Individually, and on behalf of all others :

similarly situated,

:

:

Petitioners,

:

:

v.

:

:

D. EASTER, Warden of Federal

:

Correctional Institute at Danbury, and

:

MICHAEL CARVAJAL, Director of the :

Federal Bureau of Prisons, in their official :

Capacities

:

:

Respondents.

:

No. 3:20-cv-569 (MPS) May 11, 2020

PETITIONERS’ SECOND SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER
Petitioners submit this second supplemental memorandum following the May 6, 2020 hearing to update the Court about conditions at the men’s facility at FCI Danbury and to request further emergency relief. I. Conditions in D Unit at FCI Danbury
The D Unit at FCI Danbury currently houses approximately 60 men. The men sleep in rows of bunk beds, with the beds approximately four feet apart from each other. See Declaration of Kenneth Cassidy (“Cassidy Dec.”) ¶ 31;1 Second Declaration of Kenneth Cassidy, submitted herewith as Exhibit A (“Cassidy Dec. 2”) ¶¶ 2-4.

1 Kenneth Cassidy’s first declaration is attached to the Petition (ECF 1) as Exhibit D. 1

Case 3:20-cv-00569-MPS Document 27 Filed 05/11/20 Page 2 of 5
On May 7, 2020, two men who had been sick for some time were removed from D Unit. A filing submitted on May 8, 2020 by the U.S. Attorney’s Office for the Western District of New York in Kenneth Cassidy’s pending compassionate release case stated:
[T]he government contacted the defendant’s case manager at Danbury FCI. On May 8, 2020, the defendant’s case manager stated that on May 7, 2020, two inmates were removed from the defendant’s housing unit and placed into quarantine. One inmate, who tested negative for COVID-19, was the inmate who was two bunks away from the defendant, and had reported feeling sick for the past two months. The other inmate, who tested positive for COVID-19, was across the walkway from the defendant and numerous feet away. Again, both individuals were placed into quarantine on May 7, 2020. See Exhibit B, submitted herewith. As set forth in the attached declarations, following the removal of the two men from D Unit on May 7, 2020, staff have not—as of May 10—removed the bedding from the beds where the two men had been sleeping and have not otherwise cleaned their living areas. Cassidy Dec. 2 ¶ 6; Declaration of Edward Clinton Jones, submitted herewith as Exhibit C (“Jones Dec.”) ¶ 5; Declaration of Ivan Joseph Soto, submitted herewith as Exhibit D (“Soto Dec”) ¶ 6; Declaration of Mark Youngs, submitted herewith as Exhibit E (“Youngs Dec.”) ¶ 6. Staff have also not provided the prisoners with cleaning supplies and protective equipment to clean these areas themselves. Youngs Dec. ¶ 6; Cassidy Dec. 2 ¶ 6. There are men in D Unit currently exhibiting symptoms of COVID-19 including coughs, headaches, shortness of breath, chills, body aches, and chest pains. Declaration of Roger Perkins, submitted hereto as Exhibit F (“Perkins Dec.”) ¶ 5; Jones Dec. ¶ 6; Cassidy Dec. ¶ 13; Youngs Dec. ¶ 7. Men are being told that if they do not have a fever they should stop complaining and go lie down. Youngs Dec. ¶ 7; Jones Dec. ¶ 7. The men who have submitted declarations are not aware of anyone in the unit who has been tested for the virus since May 7. Jones Dec. ¶ 8;
2

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Cassidy Dec. ¶ 11; Soto Dec. ¶ 7; Perkins Dec. ¶ 6. Medical staff were not in the unit on May 9 or May 10 to evaluate the symptoms of the men. Cassidy Dec. ¶ 14.
The man who tested positive for COVID-19 on May 7 had been sick for around two weeks and had sought medical help. Cassidy Dec. ¶ 5. He was repeatedly told that he did not have a fever and should go lie down. Id. He asked his counselor for help again on May 7 and was initially told to go lie down. Id. ¶ 4; Soto Dec. ¶ 5. He was brought to medical only after he banged on the door and began screaming. Cassidy Dec. ¶ 4; Soto Dec. ¶ 5.
The second man had been sick for multiple weeks and had blood in his stool. Cassidy Dec. ¶ 8; Perkins Dec. ¶ 4. He repeatedly asked for medical care. Cassidy Dec. ¶ 8. He tested negative for COVID-19 on May 4, 2020 and was returned to the unit. Soto Dec. ¶ 4. There is a question as to whether the test was conducted properly. Id. The man was removed from the unit on May 7. Cassidy Dec. ¶ 8; Jones Dec. ¶ 4. It is unclear whether he later tested positive. Prisoners saw him being escorted to Unit A, where positive men are housed. Cassidy Dec. ¶ 9; Perkins Dec. ¶ 4. II. Request for Additional Emergency Relief
In light of the current conditions in D Unit at FCI Danbury, Petitioners request the following additional temporary relief, in addition to the relief previously requested by Petitioners. In particular, Petitioners request that the Court issue an order requiring that all prisoners in the D Unit be tested for COVID-19 and be appropriately isolated and quarantined to protect their health. Given the high false negative rate of the machine that FCI Danbury is using
3

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for testing, negative tests should be followed up with PCR testing.2 In addition, Petitioners request that the Court require a thorough cleaning of D Unit.

Dated May 11, 2020

Respectfully Submitted,
/s/ David S. Golub_______ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Telephone: (203) 325-4491 Email: dgolub@sgtlaw.com jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Telephone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu tessa.bialek@quinnipiac.edu
Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Telephone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org
Alexandra Harrington* 127 Wall Street New Haven, CT 06511 Telephone: 203-436-3532 alexandra.harrington@yale.edu

2 Warden Easter’s Declaration noted that testing was being conducted at FCI Danbury with the Abbott “ID NOW” machine, which can deliver results in approximately 15 minutes. See ECF 24, Ex. A, Easter Dec. ¶ 87. A recent study showed a false negative rate of approximately 15% with this machine. https://www.npr.org/sections/health-shots/2020/04/21/838794281/study-raises-questions-about-falsenegatives-from-quick-covid-19-test
4

Case 3:20-cv-00569-MPS Document 27 Filed 05/11/20 Page 5 of 5 Counsel for the Petitioners Dianthe MartinezBrooks, Rejeanne Collier, Jackie Madore, and Kenneth Cassidy *Application for Admission Pending
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Case 3:20-cv-00569-MPS Document 27-1 Filed 05/11/20 Page 1 of 2
Declaration of Kenneth Cassidy
1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register Number is 48169-054.
2. I am 54 years old. I am currently housed in the D unit at FCI Danbury. There are approximately 60 men in my unit right now.
3. On Thursday, May 7, 2020, a man who sleeps in the bunk bed next to me (an arms’ length away) tested positive for COVID-19. I know this man’s name but will not use it here to maintain his privacy.
4. On the morning of May 7, I walked this man to the case manager’s office because he was so sick. The case manager told him to go lay down. I told the man to go bang on the case manager’s door and demand help. After he did this, he was escorted to medical.
5. This man had been asking for medical help for two weeks and each time was told that he did not have a fever and should just go lay down. I saw him being turned away on multiple occasions.
6. After this man was removed from the unit on May 7, his bed sheets and blankets were left on his bed, which is right across from my bed. His towels were left in his area too. As of today, these items have not been removed and his area has not been cleaned. When we complained to staff, we were told to clean the area ourselves. However, we were not given cleaning supplies and protective equipment to do this cleaning.
7. A man who came into the unit from the SHU was put in the top bunk right above where the man who tested positive for COVID-19 had been sleeping.
8. A second man was also removed from the unit on May 7. I know this man’s name as well but will not use it here to maintain his privacy. I understand from a government filing in my compassionate release case that this second man tested negative for COVID-19. This man slept two bunks away from me and has been sick for around two months. He was passing blood in his stool, which he showed to me and other inmates. He asked for medical care on many occasions.
9. Through the window in my unit, I saw this second man being escorted to the A unit. My understanding is that the A unit is for those inmates who have tested positive for the virus.
10. Staff have not removed the dirty laundry and dirty clothes from this second man’s bed and living area, and they have refused to clean the area.
11. I am not aware of anyone in the unit who has been tested for COVID-19 since May 7, other than the two men who were removed that day.

Case 3:20-cv-00569-MPS Document 27-1 Filed 05/11/20 Page 2 of 2
12. I am aware of three other men in my unit who tested positive prior to May 7.
13. Multiple men are currently showing symptoms of COVID-19 and have not been tested. One of the men who is coughing has COPD and is refusing to wear a mask.
14. No medical staff have been in the unit since Friday, May 8.
15. I am concerned about my cardiac condition because I am having numbness in the left side of my face and my left arm is weaker than normal.
16. I suffer from serious chronic medical conditions including asthma, coronary artery disease, hypertension, Prinzmetal angina, cervical disc disease, lumbar disc disease, gastroesophageal reflux disease (GERD), Barrett’s esophagus, and diverticulitis resulting in a hernia in the colon wall. I have a soft tissue mass on my upper cervical spine resulting in partial paralysis that requires immediate surgery. I have had three heart attacks and have had pneumonia in my right lung more than 20 times. I cannot digest rice, beans or greens. I am severely allergic to ragweed, shellfish, trees and chlorophyll (including in green vegetables). I am morbidly obese.
17. I was seen by a physician’s assistant on April 29 who said an emergency cardiac catheterization and colonoscopy would be ordered. To date, I have not had these procedures. When a procedure is ordered, it will appear in an inmate’s Trulincs account under “consultation.” The procedures I was told would be ordered do not appear in my account. I was also told on April 29 that I would be reevaluated again in a week to see if my cardiac medication needed to be adjusted. I have not been seen since April 29.
18. Although a BOP doctor at FCI Danbury ordered that I be provided with a special medical diet, this diet is not being provided to me. I cannot digest food containing chlorophyll, which is in much of the food being provided. The doctor told me that the cardiac episodes I am having may be related to the special medical diet not being given. I have been experiencing severe discomfort and sharp pains in my abdominal wall.
19. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
_____/s/____________ Kenneth Cassidy May 10, 2020

CaCsaese1:31:72-0c-rc-0v0-0101566-W9-MMSP-SMJDRocDumoceunmt 2e7n-t267FiFleidled050/51/10/82/020PaPgaege1 1ofo2f 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK _______________________________________________
UNITED STATES OF AMERICA
-v-
KENNETH CASSIDY,
Defendant. _______________________________________________

17-CR-116

GOVERNMENT'S RESPONSE TO THE DEFENDANT’S SUPPLEMENTAL AFFIRMATION

THE UNITED STATES OF AMERICA, by and through its attorney, James P. Kennedy, Jr., United States Attorney for the Western District of New York, and the undersigned Assistant United States Attorney, respectfully files this response to the defendant’s supplemental affirmation. See Dkt. #66. Specifically, after receipt of the defendant’s supplemental affirmation, the government contacted the defendant’s case manager at Danbury FCI. On May 8, 2020, the defendant’s case manager stated that on May 7, 2020, two inmates were removed from the defendant’s housing unit and placed into quarantine. One inmate, who tested negative for COVID-19, was the inmate who was two bunks away from the defendant, and had reported feeling sick for the past two months. The other inmate, who tested positive for COVID-19, was across the walkway from the defendant and numerous feet away. Again, both individuals were placed into quarantine on May 7, 2020.

CaCsaese1:31:72-0c-rc-0v0-0101566-W9-MMSP-SMJDRocDumoceunmt 2e7n-t267FiFleidled050/51/10/82/020PaPgaege2 2ofo2f 2
DATED: Buffalo, New York, May 8, 2020. JAMES P. KENNEDY, JR. United States Attorney S/ AARON J. MANGO
BY: _____________________________ AARON J. MANGO Assistant U.S. Attorney United States Attorney’s Office Western District of New York 138 Delaware Avenue Buffalo, New York 14202 (716) 843-5882 aaron.mango@usdoj.gov
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Case 3:20-cv-00569-MPS Document 27-3 Filed 05/11/20 Page 1 of 1
Declaration of Edward Clinton Jones
1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register Number is 27135-171.
2. I am 47 years old. I am currently housed in the D unit at FCI Danbury.
3. The D unit is a dormitory style unit, with rows of bunk beds. Currently, there are approximately 60 men in the unit.
4. On May 7, 2020, two men who were sick were removed from our unit. We were initially told both men had tested positive for COVID-19 but later told only one had tested positive.
5. As of today, the staff have not removed the dirty sheets and blankets off the beds where these sick men were sleeping. They have also not cleaned their living areas, lockers, and bins.
6. Since the men were taken out of the unit on May 7, many of the other men in my unit are showing symptoms of the virus including coughing, chills, severe headaches, and body aches.
7. I have heard staff tell men to stop complaining about their symptoms if they don’t have a fever. I have also heard staff say if you keep complaining you will be put in the A unit. (The A unit is where they are housing men who have tested positive for the virus).
8. I am not aware of anyone in the unit who has been tested since May 7.
9. I suffer from hyperglycemia and had gastric bypass surgery before coming into BOP custody. Recent blood work showed my liver and pancreas levels were double what is normal. I am experiencing severe numbness in my hands. My blood pressure was last tested on either May 4 or May 5 and was 190/100, which is alarming to me. On that same day, the doctor said a scope for internal injuries would be ordered. However, I have not been told when this procedure will occur.
10. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
_____/s/______________________ Edward Clinton Jones
May 10, 2020

Case 3:20-cv-00569-MPS Document 27-4 Filed 05/11/20 Page 1 of 1
Declaration of Ivan Joseph Soto
1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register Number is 25237-031.
2. I am 32 years old. I am currently housed in the D unit at FCI Danbury.
3. Two men were taken out of our unit on May 7, 2020.
4. One of the men removed from the unit had been sick for many weeks. He had been asking for help at sick call but told to stop complaining because he didn’t have a fever. He was tested on May 4 and told he was negative for the virus. He told me that when he was tested, a medical staff member who was watching told the person doing the test that the swab had not been pushed up in the nose far enough. He was not retested at that time.
5. The other man removed from the unit had been sick for around two weeks. He went to the case manager on May 7 to ask for help. He was told to go lay down. He then started screaming and they took him to medical. We’ve been told he tested positive.
6. As of today, the bedding has not been removed from the beds of both of these men. Their areas have not been cleaned.
7. I am not aware of anyone in the unit who has been tested for the virus since May 7.
8. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
_______/s/___________ Ivan Joseph Soto
May 10, 2020

Case 3:20-cv-00569-MPS Document 27-5 Filed 05/11/20 Page 1 of 1
Declaration of Mark A. Youngs 1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register
Number is 16256-055.
2. I am 58 years old. I am currently housed in the D unit at FCI Danbury.
3. I suffer from a heart condition, high blood pressure, and asthma.
4. There are around 60 to 70 men in my unit. The men sleep in rows of bunk beds.
5. Staff removed two men who were sick from the unit on May 7. Staff have told us one was negative and one was positive for the coronavirus.
6. The bed areas of the two men have not been cleaned since they were taken out of the unit on May 7. Inmates do not want to clean those sleeping areas because they haven’t been given gloves, cleaning chemicals, or new masks to do the job.
7. Men in the unit are showing symptoms including headaches and sneezes. They are being told by staff that if they don’t have a fever then stop complaining and go lay down.
8. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
_______/s/___________ Mark A. Youngs
May 10, 2020

Case 3:20-cv-00569-MPS Document 27-6 Filed 05/11/20 Page 1 of 1
Declaration of Roger Perkins
1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register Number is 13700-049.
2. I am 37 years old. I am currently housed in the D unit at FCI Danbury.
3. There are approximately 59 inmates in the unit right now.
4. On May 7, 2020, we had two inmates removed from the unit. We were told one tested positive for coronavirus. The other we were told tested negative. However, we saw him being escorted to the unit where the positive inmates are isolated. This man had been complaining about passing blood in his bowel movements.
5. Some men in the unit are now having symptoms including shortness of breath, dizziness, and chest pains.
6. I am not aware of anyone in the unit who has been tested for the virus since May 7.
7. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
_____/s/___________ Roger Perkins
May 10, 2020

 
 Case 3:20-cv-00569-MPS Document 30 Filed 05/12/20 Page 1 of 74

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS et al., Plaintiffs, v.
D. EASTER & MICHAEL CARVAJAL, Defendants.

No. 3:20-cv-00569 (MPS)

RULING ON MOTION FOR TEMPORARY RESTRAINING ORDER AND MOTION TO DISMISS
I. INTRODUCTION On March 27, 2020, Congress gave federal prison officials an extraordinary tool to
confront the extraordinary threat posed by the novel coronavirus within prison walls: the authority to transfer any federal inmate from prison to confinement in his or her home. A week later, the Attorney General of the United States urged the Director of the Bureau of Prisons (“BOP”) to “maximize” the use of that tool as soon as possible, stating in an April 3 memorandum that “[g]iven the speed with which this disease has spread through the general public,” and the Bureau’s “profound obligation to protect the health and safety of all inmates,” “it is clear that time is of the essence.” ECF No. 24-2 at 48-49. The Attorney General’s memo was triggered by an outbreak of COVID-19, the disease caused by the novel coronavirus, at the Danbury Federal Correctional Institution (“FCI Danbury”), a low security prison in Danbury, Connecticut, and two other federal prisons; the memo directed the BOP to “immediately review all inmates who have COVID-19 risk factors” for potential placement in home confinement, “starting with inmates incarcerated at … FCI Danbury” and the other two facilities. Id. at 49. This case – brought by four inmates at FCI Danbury – involves an apparent failure of the Warden and staff at FCI Danbury to take these exhortations seriously. The four inmates, all of

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whom have COVID-19 risk factors, have made a preliminary showing that officials at FCI Danbury are making only limited use of their home confinement authority, as well as other tools at their disposal to protect inmates during the outbreak, and that these failures amount to deliberate indifference to a substantial risk of serious harm to inmates in violation of the Eighth Amendment. Accordingly, I grant in part the inmates’ motion for a temporary restraining order and issue an order that requires the Warden at FCI Danbury to adopt a process for evaluating inmates with COVID-19 risk factors for home confinement and other forms of release that is both far more accelerated and more clearly focused on the critical issues of inmate and public safety than the current process. Factual disputes as to other issues the inmates raise preclude me from granting further relief at this time, but I also order an expedited period of discovery and schedule a hearing for June 11, 2020, to adjudicate the inmates’ motion for preliminary injunction. II. PROCEDURAL HISTORY
On April 27, the inmates (the “Petitioners”) filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 against the Warden of FCI Danbury and the Director of the Bureau of Prisons (the “Respondents”). They sought to represent a class consisting of all inmates in the men’s prison and the two women’s prisons making up FCI Danbury, as well as a “medically vulnerable” subclass consisting of those inmates with COVID-19 risk factors. They alleged that “[t]he only effective way to minimize the potential devastation from COVID-19 in BOP facilities generally and FCI Danbury in particular is to downsize immediately the incarcerated population and, for the prisoners who remain at the institution, to undertake aggressively the detection, prevention, and treatment measures that public health and medical experts have recommended, including effective social distancing.” ECF No. 1 at 34. They further alleged that Respondents were violating the Eighth Amendment by “fail[ing] to use the BOP’s available statutory
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authority to reduce the population of FCI Danbury to mitigate the severe risk posed by COVID19,” ECF No. 1 at 41, and by failing to take adequate safety measures—including distancing, hygiene, testing, and medical treatment—to protect inmates during the outbreak.
The Petition seeks a wide range of relief, including an order “requiring Respondents to release from custody or to home confinement members of the [medically vulnerable] Subclass and requiring Respondents to provide medically adequate social distancing and health care and sanitation for members of the Class who remain.” ECF No. 1 at 66.
On April 30, the Petitioners filed an “emergency motion for temporary restraining order and preliminary injunction,” seeking an order requiring Respondents to “enlarge [i.e., transfer] to home confinement all women currently housed in the satellite camp at FCI Danbury,” “enlarge to home confinement all members of the medically vulnerable Subclass,”1 and “implement appropriate measures to maximize social distancing and improve hygiene” for the remaining inmates or transfer them to safer BOP facilities. ECF No. 14 at 1. Together with their Petition and motion, Petitioners filed declarations from inmates housed at each of the three prisons within FCI Danbury, as well as declarations from experts and other evidence.
On May 5, the Respondents filed a joint motion to dismiss the habeas petition under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and an opposition to the motion for temporary restraining order and preliminary injunction. The Respondents argued that the Court lacked jurisdiction over the habeas petition, that it failed state a claim, and that the Petitioners’ motion should be denied. With regard to jurisdiction, the Respondents argued, among other things, that the Court was
1 During oral argument on the motion for temporary restraining order and preliminary injunction, Petitioners’ counsel stated that, by asking for an order of “enlarge[ment],” Petitioners were not seeking the immediate, indiscriminate release of inmates, but instead asking for a process by which inmates would be evaluated promptly for transfer to home confinement, with the urgency reflected in the Attorney General’s April 3 memo. The order I issue today requires the implementation of such a process.
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prohibited from entertaining the Petitioners’ requests for “enlargement”, because doing so would exceed the limited authority of district courts to modify sentences once they are imposed; that the Prison Litigation Reform Act, 18 U.S.C. § 3626, foreclosed such relief; and that the Petitioners had failed to exhaust administrative remedies. The Respondents also submitted a lengthy declaration by the Warden and defended her efforts to combat the COVID-19 crisis on the merits, detailing safety measures the Warden had imposed at FCI Danbury, including enhanced sanitation, quarantine of inmates, isolation of groups of inmates, the provision of masks and other protective equipment to inmates and staff, and delivery of food and programming directly to the living units. Finally, the Respondents argued that this habeas petition cannot be maintained as a class action.
I held oral argument on May 6, 2020, and now issue this ruling. III. FACTUAL BACKGROUND
The factual background is taken from the Petition, the declarations submitted by Petitioners, and the Warden’s declaration. A. The Petitioners
Petitioners are four inmates currently serving terms of imprisonment at FCI Danbury. Petitioners suffer from medical conditions that place them at higher risk for serious illness or death from the disease caused by the SARS-CoV-2 virus (“COVID-19”). They bring this habeas petition on behalf of themselves and a putative class of all inmates currently in custody at FCI Danbury, or who will be in custody at FCI Danbury during the course of the COVID-19 pandemic (“the Class”), as well as a subclass consisting of all such individuals who are also at heightened risk for serious illness or death from COVID-19 (“the Medically Vulnerable Subclass”).
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Petitioner Dianthe Martinez-Brooks is a 50-year-old woman currently housed in FCI Danbury’s women’s minimum-security camp. ECF No. 1 (“Petition”) ¶ 1. Ms. Martinez-Brooks suffers from systematic lupus erythematosus, an inflammatory autoimmune disease of the connective tissue, for which she takes corticosteroids. Id. The prolonged use of corticosteroids can cause a person to be immunocompromised.2 Ms. Martinez-Brooks also suffers from asthma and hypertension. Id. She is serving a 48-month sentence for wire fraud, and her projected release date is June 25, 2022. ECF No. 1-3 at 2.
Petitioner Kenneth Cassidy is a 54-year-old man currently housed at FCI Danbury’s men’s prison, a low-security facility. ECF No. 1-4 at 2. He has had three heart attacks, has had pneumonia in his right lung more than 20 times, and suffers from multiple chronic medical conditions, including asthma, coronary artery disease, and hypertension. Id. He is morbidly obese. Id. at 3. Mr. Cassidy is serving a 5 year sentence for conspiracy to commit wire fraud and willful failure to file an income tax return. Id. His projected release date is March 31, 2021 and his projected home confinement release date is October 1, 2020. Id.
Petitioner Rejeanne Collier is a 64-year-old woman currently housed in the Women’s Camp. Petition ¶ 2. She suffers from lupus, hypertension, and hepatitis C and has been treated for cancer while in custody. Id. She is serving a 15 ½ year term of imprisonment for conspiracy to possess with intent to distribute and to distribute one kilogram or more of heroin. ECF No. 24-2 at 38-39.
2 People Who Are at Higher Risk for Severe Illness, CDC (Apr. 15, 2020), https://www.cdc.gov/coronavirus/ 2019-ncov/need-extra-precautions/people-at-higher-risk.html.
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Petitioner Jackie Madore is a 50-year-old woman currently housed in the low security satellite prison. Petition ¶ 3. She suffers from hypertension, hypothyroidism, and hepatitis C. Id. B. The COVID-19 Pandemic
The COVID-19 pandemic is an ongoing, once-in-a-century public health crisis to which no reader will need much introduction. As of May 11, 2020, there have been a whopping 1.3 million confirmed cases and roughly 80,000 deaths from COVID-19 in the United States alone. Cases in the U.S., CDC.gov (last updated May 11, 2020).3 Shops, restaurants, and offices remain shuttered in many states, and unemployment has reached levels unseen since the Great Depression.
Not all Americans, however, are equally at risk. It is well established that the elderly and those suffering from certain preexisting medical conditions are at significantly higher risk of serious illness or death from COVID-19. According to the Centers for Disease Control and Prevention (“CDC”), those at high risk for severe illness from COVID-19 include people who are 65 years and older, have chronic lung disease or moderate to severe asthma, have serious heart conditions, are immunocompromised, are severely obese, have diabetes, have chronic kidney disease and are undergoing dialysis, or have liver disease.4 High-risk individuals face significantly higher mortality rates should they contract COVID-19 than the general population. According to one report, for example, the mortality rate from COVID-19 is 8.4% for individuals with hypertension, 8.0% for individuals with chronic respiratory disease, 7.6% for individuals with cancer, and 13.2% for individuals with cardiovascular disease. ECF No. 1 at 9-11 (citing
3 URL: https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 4 People Who Are at Higher Risk for Severe Illness, CDC (Apr. 15, 2020), https://www.cdc.gov/coronavirus/ 2019-ncov/need-extra-precautions/people-at-higher-risk.html.
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Report of WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/whochina-joint-mission-on-covid-19-final-report.pdf (last visited May 7, 2020)).
Petitioners’ medical conditions place them in this high-risk group. And Petitioners face an additional risk that even most of those in the high-risk group do not: They are incarcerated. According to Petitioners’ expert, “[t]he risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” ECF No. 1-1 at 3. And it is not difficult to imagine why. The vast majority of the inmates at FCI Danbury live in large dormitory halls lined with bunk beds, each housing roughly 50 or more inmates, with shared bathrooms and common spaces. This arrangement makes effective social distancing virtually impossible.
Thus, not surprisingly, numerous federal and state prisons are contending with significant COVID-19 outbreaks, and FCI Danbury is no exception. Since the pandemic began, sixty-nine inmates at FCI Danbury have tested positive, out of an inmate population of approximately 1,000. ECF No. 24-2 at 25. But this figure may well understate the true number of COVID-19 cases at FCI Danbury, in light of the limited testing that has been conducted. One inmate has died since the crisis began. In fact, FCI Danbury was one of only three federal prisons specifically identified by Attorney General William Barr in an April 3, 2020 memo to the Director of the Bureau Prisons ordering immediate action to place vulnerable inmates on home confinement. ECF No. 24-2 at 48. In the memo, Attorney General Barr noted the “significant levels of infection” at FCI Danbury, along with FCI Oakdale and FCI Elkton. Id.
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C. The Warden’s Efforts To Contain the Outbreak The extent to which the Warden has implemented adequate measures to control the
COVID-19 outbreak at FCI Danbury and protect inmates is hotly disputed in this case. The Warden’s efforts and the Petitioners’ allegations regarding their insufficiency are described in the sections that follow. 1. Social Distancing
According to the CDC, social distancing is “the best way to reduce the spread of coronavirus disease 2019 (COVID-19).” Social Distancing, CDC (May 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html. Practicing social distancing requires individuals to stay at least 6 feet from other people, to avoid gathering in large groups, and to stay out of crowded places and avoid mass gatherings. Id. These measures are virtually impossible to observe in a prison setting, particularly at facilities like FCI Danbury. FCI Danbury consists of three facilities—a low-security men’s prison, a minimum-security women’s camp, and a low-security women’s satellite prison. ECF No. 24-2 at 4-5.
In the men’s prison, there are seven units of open, dorm-style housing, two smaller rooms that can house ten to twelve inmates each, and three units of individual cells. ECF No. 24-2 at 4. Thus, the majority of the inmates at the men’s prison live in large, open dormitories, with shared common spaces and bathrooms. For example, Petitioner Kenneth Cassidy sleeps in a room with 65 other prisoners. ECF No. 1-4 at 9. He sleeps within one foot of the prisoner on the bunk above him, and within three to four feet of the four prisoners in the two bunks on either side of him. Id. There are no barriers between the beds. Id. As of May 4, 2020, the men’s prison housed 719 inmates. ECF No. 24-2 at 4.
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In the women’s satellite prison, all of the women are housed in a single dormitory-style room that accommodates approximately 160-170 beds. Petition ¶ 36. The room is divided into cubicles, each containing two bunk beds, separated by approximately four feet. Id. Beds in each cubicle are immediately adjacent to the cubicle wall, which does not reach to the ceiling. Id. In some instances the wall does not even reach the top of the bunk bed, and the woman on the top bunk sleeps right next to the woman on the top bunk in the adjacent cubicle. Id. The women in the satellite prison share three bathrooms, each of which includes between 4-8 toilets, sinks, and showers. Id. As of May 4, 2020, the women’s satellite prison housed 131 inmates. ECF No. 242 at 5.
The women’s prison camp is a large building divided into four dormitories, each consisting of cubicles and bunk beds. Id. at 4. The cubicles have no doors and their dividing walls do not extend to the ceilings. Petition ¶ 37. The bunk beds are less than six feet apart. Id. Each of the four dormitories has a common shower and bathroom area. Id. Three of the dorms house 47 women each, and the fourth houses 7. Id. As of May 4, 2020, the women’s camp housed 134 inmates. ECF No. 24-2 at 4.5
The Petitioners complain that social distancing—arguably the most effective measure for preventing the spread of COVID-19—is impossible at FCI Danbury. Most of the inmates at FCI Danbury live in large, open dormitories with 50 or more other inmates, where they sleep within 3 to 4 feet of between 3 and 5 other prisoners. Petition ¶ 149. Prisoners use the same bathrooms and share a limited number of toilets, sinks, and showers, as well as a limited number of telephones and computers, which are located close together in common areas. Id. Moreover,
5 As these two sentences show, the figures estimated by Petitioners differ somewhat, but not materially, from those estimated by Respondents; these differences may be a function of the different times at which they filed their submissions.
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according to Petitioners, prisoners are unnecessarily made to line up in close proximity to one another to receive their meals and medications. Id. ¶ 150.
The Warden contends that she has taken substantial steps toward implementing social distancing. In general, smaller inmate groups at FCI Danbury have been formed by separating inmates by housing unit so they can “shelter in place” with the fewest number of fellow inmates. ECF No. 24-2 at 9. These groups are rotated through the recreation facility by themselves, and the facility is disinfected between groups. Id. Programs, including “Education, Psychology, and Religious Services” are delivered in each unit, and meals are delivered directly to the units by staff (rather than inmate food service workers) in order to maintain the integrity of the inmate group quarantine. Id. While the Respondents compare this arrangement to “family units in the general population,” and note that an inability to full socially distance is typical of many, if not all, correctional institutions, ECF No. 24-1 at 73, the fact remains that true social distancing appears to be unachievable at FCI Danbury, creating an environment where the risk of transmission is significantly heightened. 2. Screening and Testing
Petitioners contend that the Warden has failed to adequately screen inmates for COVID19 symptoms and test and isolate inmates exhibiting symptoms. According to Petitioners, inmates who complain to staff of symptoms consistent with COVID-19—including coughing, congestion, and shortness of breath—are routinely unable to obtain immediate medical examination, are not tested for COVID-19, and are returned to the general population until their symptoms worsen. Petition ¶ 131. For example, Kimberly Hoisington, an inmate at the satellite prison, indicates that on March 26, she reported being ill to staff on two separate occasions, but was told to lie down. ECF No. 1-7 at 2. By early morning on March 27, she developed severe
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chest pain and was eventually taken to the hospital, where she tested positive for COVID-19. Id. Similarly, Christina Korbe, an inmate at the satellite prison, submitted testimony indicating that, in early April, she began experiencing symptoms consistent with COVID-19, including a severe headache, body aches, fever, shortness of breath, and “a terrible cough”—the “worst cough I have ever had.” ECF No. 1-5 at 2. She spoke to the medical department multiple times about her symptoms but was never offered a test for COVID-19. Id. Despite her symptoms, she was not quarantined but was instead kept with the general population. Id. She further claims that she has personally observed many other prisoners with symptoms similar to hers, but that the majority of these women were not placed into quarantine. Id. at 3. Petitioner Cassidy, an inmate at the men’s prison, indicates that “[a]pproximately 80% of prisoners in my unit show flu-like symptoms, including fever, coughing, body aches, shortness of breath, chest pressure, and headaches.” ECF No. 1-4 at 3.
Inmate Christina Korbe also relates that, on April 24, a woman at the satellite prison became extremely sick, vomiting and struggling for air. ECF No. 1-5 at 3. Other inmates were around her, trying to help her, without wearing any gloves or masks. Id. She was sick for hours and throughout the night, and the inmates did not understand why the staff did not take her to the hospital. Id. In response to concern among the inmates, a correctional officer (a lieutenant) came into the dormitory and announced that anyone who used the phone to contact people on the outside about the incident would get a disciplinary violation, and that the inmates needed to “stay in [their] lane” because they “are not doctors.” Id. The sick woman was eventually taken to the hospital early on April 25. Id. At oral argument, the Respondents indicated that she was taken to the hospital because she was aspirating—choking on her own vomit—and that she was intubated for this reason, although she also tested positive for COVID-19. The Respondents
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further indicated that she was taken off the ventilator the very next day and sent back to FCI Danbury after only two nights in the hospital. According to Christina Korbe, many of the women who had been in contact with the woman who was taken to the hospital were tested for COVID-19, and at least ten of them tested positive. These women have been quarantined, but were first allowed to come back to the dormitory to get their personal belongings and take showers. Id. at 3-4.
The Warden contends that inmates are screened daily for COVID-19 symptoms. For example, beginning on April 9, 2020, the Lieutenants at FCI Danbury began visiting each housing unit daily to take the temperature of all inmates assigned to that unit. ECF No. 24-2 at 24. Any inmate found to have a temperature of 99 degrees or higher is sent to Health Services for a follow-up assessment by a licensed health care provider. Id. Petitioners contend, however, that these readings are sometimes manipulated to avoid appropriate follow-up by requiring prisoners to drink a glass of cold water, attributing high readings to equipment error, or holding the temperature wand too far from inmates’ foreheads. Petition ¶ 134. According to inmate Kimberly Hoisington, for example, when she was taken to the hospital, her temperature was 102 degrees upon arrival, while an hour earlier, FCI Danbury staff had told her that her temperature was 97 degrees. ECF No. 1-7 at 2.
In general, the Warden claims that any inmate at FCI Danbury presenting with symptoms consistent with COVID-19 is immediately evaluated by a medical provider to determine whether testing and/or isolation is appropriate, whether contact tracing might be necessary, and whether inmates with whom the symptomatic inmate had contact might need to be quarantined. ECF No. 24-2 at 24. The decision whether to test an inmate for COVID-19 is made by BOP medical providers based on a number of criteria, including but not limited to: (1) the nature and severity
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of the symptoms; (2) the inmate’s potential exposure to COVID-19; and (3) whether the inmate is considered “high-risk.” Id. On April 14, 2020, FCI Danbury received an Abbott “ID NOW” machine that can deliver test results within approximately 15 minutes. Id. at 24-25. As of May 4, 2020, FCI Danbury had 150 COVID-19 testing kits in stock, and the facility has the ability to order and quickly receive additional kits from a designated vendor if needed. Id. at 25. Since the advent of the emergency, 205 inmates have been tested for COVID-19; sixty-nine inmates and fifty-six staff have tested positive. Id. This includes testing of every woman at the satellite prison, performed at the behest of U.S. Senator Christopher Murphy between May 2nd and 3rd, during which 20 of 143 women tested positive. Id. 3. Isolation and Quarantine
The Petitioners claim that the Warden has further failed to adequately isolate individuals testing positive for COVID-19 and to quarantine individuals who have had contact with inmates infected with COVID-19. According to the CDC’s “Interim Guidance on Management of [COVID-19] in Correction and Detention Facilities,” “as soon as an individual develops symptoms of COVID-19, . . . they . . . should be immediately placed under medical isolation in a separate environment form other individuals,” and “persons who are close contacts of a confirmed or suspected COVID-19 case . . . should be placed under quarantine for 14 days.” CDC (May 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html [hereinafter CDC, Interim Guidance]. For medically isolated individuals, the CDC provides the following criteria for how long an individual testing positive must be isolated:
• For individuals who will be tested to determine if they are still contagious: o The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND
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o The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND
o The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
• For individuals who will NOT be tested to determine if they are still contagious: o The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND o The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND o At least 10 days have passed since the first symptoms appeared
• For individuals who had a confirmed positive COVID-19 test but never showed symptoms: o At least 10 days have passed since the date of the individual’s first positive COVID-19 test AND o The individual has had no subsequent illness
Id.
According to Petitioners, in spite of this guidance, prisoners who test positive for
COVID-19 are returned to the general population far earlier than appropriate. Petition ¶ 140.
For example, Tamika Somerville, an inmate at the satellite prison, indicates that a woman in her
unit, who sleeps in the adjacent cubicle, was removed from the unit because she had a fever,
tested positive for COVID-19 on a Tuesday, and was returned to the unit that same Friday. ECF
No. 1-9 at 3. The Petitioners also indicate that staff members who test positive for COVID-19
return to work while still symptomatic. For example, inmate Marius Mason indicates that one
officer told her she still felt ill and did not want to be at work, but was nonetheless told to return.
ECF No. 1-6 at 3.
The Warden, on the other hand, indicates that separate housing spaces have been
established for “isolation” (for inmates demonstrating symptoms) and “quarantine” (for
asymptomatic inmates) in each of the three facilities, and each facility has the ability to create
additional isolation/quarantine space should the need arise. ECF No. 24-2 at 10-11. She
indicates that all inmates who present with COVID-19 symptoms are isolated and tested the
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same day, “provided testing supplies are available.” Id. at 26. According to the warden, under no circumstance are inmates who have been placed in isolation released to the general population prior to meeting the CDC’s symptom-based criteria.6 Id. at 27. Staff are subjected to screening, including having their temperature taken, prior to the start of every shift. Id. at 16. If a staff member reports symptoms consistent with COVID-19, he or she is sent home. Id. at 17. If a staff member tests positive, his or her suitability for returning to work is evaluated under the CDC’s symptom-based criteria (as described in footnote 4). Id. 4. Sanitation and Hygiene
Petitioners claim that they do not have adequate cleaning supplies to clean their personal areas, and that shared living spaces throughout the facility are not regularly or properly disinfected to prevent the spread of COVID-19. Petition ¶ 159. Telephones, computers and video calling equipment, and televisions shared by hundreds of prisoners are not cleaned or disinfected between uses, and the common areas in which the equipment is located is not regularly or properly disinfected. Id. ¶ 161. CDC Guidance further recommends thoroughly cleaning and disinfecting all areas where confirmed or suspected COVID-19 cases spent time. CDC, Interim Guidance. According to Petitioners, however, units where prisoners who test positive were housed are not being subjected to any heightened cleaning. Petition ¶ 162. Petitioners also indicate that prisoners have no access to hand sanitizer, which has been out of stock at the commissary for the duration of the present crisis, and that liquid soap dispensers were only recently installed in the men’s prison but are not regularly restocked. Id. ¶ 163. According to the Petitioners, soap is unavailable to indigent prisoners. Id. ¶ 165.
6 The Warden describes these criteria as follows: “(1) being fever-free for greater or equal to 72 hours without the use of fever-reducing medication, and (2) respiratory symptoms have improved, and (3) at least 7 days have passed since the first symptoms appeared.” ECF No. 24-2 at 27.
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The Warden, by contrast, indicates that cleaning supplies are distributed throughout the facility on a daily basis, including a broad-spectrum disinfectant (“Virex II/256”), which was added specifically to address the coronavirus threat. ECF No. 24-2 at 12-13. Once in the housing units, cleaning supplies are maintained in small caddies or bins kept in staff offices or closes, which inmates can then ask to bring back to their living areas. Id. at 13. Large area disinfection is being performed at both the satellite prison and the men’s prison through the use of backpack cleaning chemical sprayers. Id. While the Warden indicates that recreational areas are disinfected between uses, she does not indicate whether items such as phones and computers are disinfected between uses. As for soap and other personal hygiene products, the Warden maintains that inmates at FCI Danbury are provided with basic soap and personal hygiene products by the institution, and that “there is never a reason an inmate should not have access to soap at FCI Danbury.” Id. at 14. In addition, prisoners can purchase up to 13 different kinds of soap, as well as other personal hygiene products, from the commissary. Id. The Warden does not indicate whether inmates have access to hand sanitizer. 5. Personal Protective Equipment
According to the Warden, staff at FCI Danbury have, and will continue to have, access to appropriate personal protective equipment (“PPE”). ECF No. 24-2 at 15. Upon reporting to work each day, staff at FCI Danbury are provided with new surgical masks, which they are required to wear throughout their shift. Id. Additional PPE, including gowns, gloves, N-95 particulate respirators, and face shields, are available for staff working in Health Services, Receiving & Discharge, and isolation housing units. Id. Staff are instructed as to the proper use of PPE. Id. Inmates at FCI Danbury were initially provided with two of the same surgical masks provided to staff. Id. at 16. Once FCI Danbury was able to procure cloth masks, two of these
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masks were issued to every inmate. Id. Upon request, inmates are still provided with the same surgical masks provided to staff. Id. Inmates are required to wear these masks at all times, except when they are eating or sleeping, and failure to do so can result in disciplinary action. Id.
Petitioners contend that the usage of PPE is inconsistent, and correctional staff do not enforce mask usage against prisoners who refuse to cover their faces, nor do correctional staff consistently wear masks or gloves when they are in the units. Petition ¶ 182. Prisoners— including prisoners on cleaning duty—are not provided with gloves to protect their hands from exposed surfaces. Id. ¶ 180. And in many parts of the facility, FCI Danbury only provides one mask per prisoner and, therefore, prisoners have no protection when their masks are being washed. Id. ¶ 179. 6. Medical Treatment for Other Conditions
Petitioners allege that, since the onset of the COVID-19 crisis, non-virus medical needs have sometimes gone unattended. Petition ¶ 188. Prisoners who do not present with a fever during sick call cannot gain access to a physician, and sick call requests unrelated to the virus go unanswered for prolonged periods of time. Id. Petitioners indicate that medical triage in the men’s prison is conducted by a social worker without medical training, who is openly contemptuous of the men’s needs. Petition ¶ 129. Petitioner Cassidy represents, for example, that the social worker told the men in his unit, “You are all fucking children with nothing more than a flu so stop your shit you’re not going home early.” ECF No. 1-4 at 5-6. She has also told the men, “I don’t need medical training to tell you you’re not sick so go lay the fuck down.” Id.
Petitioners further indicate the prison pharmacy has been closed, and medications must be shipped from another facility, resulting in delays in their delivery and disruption of medication regimens. Id. ¶ 189. Petitioner Cassidy, for example, indicates that he did not
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receive the correct dose of his medication for two weeks in April, ECF No. 1-4 at 3, and Petitioner Martinez-Brooks indicates that her blood pressure medicine ran out on April 2 and additional medicine did not reach her until April 10. ECF No. 1-3 at 4. Similarly, inmates with special medical diets or allergies have received meals containing ingredients harmful to their health. Prisoners with peanut allergies have received meals containing peanut products, and Petitioner Cassidy, who suffers from diverticulosis, has received meals containing rice and beans. Petition ¶ 190. Petitioners further indicate that, as a result of staff shortages, officers and staff are sometimes not available to respond to medical emergencies. Id. ¶ 187.
The Warden, while acknowledging that several medical staff are on leave, for reasons both related and unrelated to COVID-19, indicates that a BOP Medical Asset Support Team, including an Associate Warden, two physician assistants, and one pharmacist, has been dispatched to FCI Danbury to assist with its COVID-19 response. ECF No. 24-2 at 25-26. The Warden maintains that inmates continue to have access to Health Services, but that, in order to maintain the integrity of the group quarantines, Health Services staff (including the social worker and the dental hygienist) go to the individual housing units to pass out and collect “sick call forms,” which are written requests to Health Services. Id. at 26. These staff do not perform any assessments at that time. Id. The “sick call” forms are then triaged by a registered nurse or a physician assistant for appropriate action. Id. If it is determined that inmates need to be seen in the clinic, they are set for an appointment at a time they can move to the clinic with other members of their quarantine group or unit. Id. For emergent medical needs, an inmate can always be specifically called up to the clinic outside the scheduled time for his or her unit. Id. The Warden also indicates that the pharmacy at FCI Danbury has remained functioning throughout the course of the current crisis, and that there are two scheduled times per day when
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inmates can, with their quarantine group, proceed to the clinic for “pill line” or for staff-assisted
medication administration. Id. at 27.
D. Home Confinement and Compassionate Release
By contrast to the abundant factual disputes regarding the Warden’s implementation of
safety measures, the facts regarding the Warden’s use of home confinement and compassionate
release are largely undisputed.
1. Home Confinement
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. ECF No. 24-2 at 18. Under 18 U.S.C.
§ 3624(c)(2), the Bureau of Prisons may “place a prisoner in home confinement for the shorter of
10 percent of the term of imprisonment of that prisoner or 6 months.” Under 34 U.S.C. § 60541,
the BOP may release some or all eligible elderly offenders7 and eligible terminally ill offenders8
from BOP facilities to home detention, upon written request from either BOP staff or an eligible
offender.
7 The statute defines “eligible elderly offender” to mean an offender in the custody of the Bureau of Prisons (i) “who is not less than 60 years of age”; (ii) “who is serving a term of imprisonment that is not life imprisonment based on conviction for an offense or offense that do not include any crime of violence . . . , sex offense . . . , or offense under chapter 37 of title 18, and has served 2/3 of the term of imprisonment to which the offender was sentenced”; (iii) “who has not been convicted in the past of any Federal or State crime of violence, sex offense, or other offense described in clause (ii)”; (iv) “who has not been determined by the Bureau of Prisons, on the basis of information the Bureau uses to make custody classifications, and in the sole discretion of the Bureau, to have a history of violence, or of engaging in conduct constituting a sex offense or other offense described in clause”; (v) “who has not escaped or attempted to escape”; (vi) whose release “will result in a substantial net reduction of costs to the Federal Government”; and (vii) “who has been determined by the Bureau of Prisons to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.” 34 U.S.C. § 60541(g)(5)(A). 8 The statute defines “eligible terminally ill offender” to mean an offender who (i) “is serving a term of imprisonment based on a conviction for an offense or offenses that do not include any crime of violence . . . , sex offense . . . , offense described in section 2332b(g)(5)(B) of title 18, or offense under chapter 37 of title 18”; (ii) “satisfied the criteria specified in clauses (ii) through (vii) of subparagraph (A) [defining eligible elderly offender]”; and (iii) “has been determined by a medical doctor approved b the Bureau of Prisons to be . . . (I) in need of care at a nursing home, intermediate care facility, or assisted living facility . . . or . . . (II) diagnosed with a terminal illness.” 34 U.S.C. § 60541(g)(5)(D).
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On March 26, 2020, Attorney General Barr issued a memorandum to the Director of the
Bureau of Prisons, titled “Prioritization of Home Confinement As Appropriate in Response to
COVID-19 Pandemic.” ECF No. 24-2 at 45. In the memo, Attorney General Barr 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.” Id. He directed the Bureau to “prioritize the use of your various statutory authorities
to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-
19 pandemic.” Id. The memo provides a non-exhaustive list of discretionary factors for
evaluating inmates for confinement. First and foremost among these is the “age and
vulnerability of the inmate to COVID-19, in accordance with the Centers for Disease Control
and Prevention (CDC) guidelines.” Id. The other factors in the memo include:
• The security 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 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 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 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;
• The inmate's crime of conviction, and assessment of the danger posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.
Id. at 46.
On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic
Security Act (“CARES Act”), which authorized the Director of the Bureau of Prisons to lengthen
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the amount of time prisoners can be placed on home confinement under Section 3624(c)(2)— previously capped at the shorter of 10% of their sentence or 6 months—provided that the Attorney General makes a finding that “emergency conditions will materially affect the functioning of the Bureau.”9 CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020).
Attorney General Barr made quick use of his authority under the CARES Act, issuing a memo on April 3, 2020, in which he made the requisite finding that “emergency conditions are materially affecting the functioning of the Bureau.” ECF No. 24-1 at 48. The memo indicated that the Bureau of Prisons was “experiencing significant levels of infection at several of our facilities, including FCI Oakdale, FCI Danbury, and FCI Elkton.” Id. Noting the Bureau’s “profound obligation to protect the health and safety of all inmates,” Attorney General Barr directed the Bureau to “move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.” Id.
Reflecting the urgency of the situation, Attorney General Barr’s memo directed immediate action. He directed the Bureau to “immediately review all inmates who have COVID-19 risk factors, as established by the CDC,” to “immediately maximize appropriate transfers,” and to “begin implementing this directive immediately.” Id. at 49. He noted that, “[g]iven the speed with which this disease has spread through the general public, it is clear that time is of the essence,” and directed the Bureau to “implement this Memorandum as quickly as possible . . . .” Id.
9 Section 12003(b)(2) provides that “[d]uring the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, 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 under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020).
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Attorney General Barr’s memorandum specifically named FCI Danbury—out of over one hundred BOP facilities--as one of three experiencing significant outbreaks and with respect to which the Bureau was to move “as quickly as possible.” Id. 48-49. Moreover, the Attorney General made clear that the Bureau’s review was to include “all at-risk inmates—not only those who were previously eligible for transfer” and “starting with the inmates incarcerated FCI Oakdale, FCI Danbury, FCI Elkton, and similarly situated facilities where [the Director] determine[s] that COVID-19 is materially affecting operations.” Id. at 49. The Attorney General went further, stating that although the BOP has limited resources to monitor inmates on home confinement, he was authorizing it 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.” Id. Noting, however, the Bureau’s responsibility to protect the public, Attorney General Barr directed the Bureau to continue to make “individualized determinations” and cautioned against the “indiscriminate” release of prisoners. Id. at 50.
Despite the explicit statutory authority under the CARES Act to place any inmate on home confinement, and despite Attorney General Barr’s urgent memorandum calling out FCI Danbury and directing immediate action, the Warden’s use of her home confinement authority has been limited. Since March 26, the Warden indicates that of the nearly 1,000 inmates at FCI Danbury, only 159 inmates have been reviewed for home confinement, and only 21 of these have been released to home confinement. ECF No. 24-2 at 23.10
10 The Warden indicates that another 2 inmates have been released on furlough until the beginning of a previously established home confinement date. ECF No. 24-2 at 23-24.
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In her description of the Bureau’s—and FCI Danbury’s—implementation of Attorney General Barr’s memoranda and the Bureau’s expanded home confinement authority under the CARES Act, the Warden indicates that BOP Case Management staff are reviewing inmates for suitability for home confinement, and that inmates do not need to apply to be considered, although any inmate who believes he or she is eligible may submit a request. Id. at 22. The Warden indicates that BOP is currently assessing “a number of factors to ensure an inmate is suitable for home confinement including, but not limited to, reviewing the inmate’s institutional disciplinary history for the last twelve months; ensuring the inmate has a verifiable release plan; verifying the inmate’s primary offense is not violent, a sex offense, or terrorism related; and confirming the inmate does not have a current detainer.” Id. at 23. In addition, the Warden indicates that, at this time, BOP is “prioritizing for consideration those inmates who either (1) have served 50% or more of their sentence, or (2) have 18 months or less remaining in their sentence and have served 25% or more of their sentence.” Id. The Warden does not provide any indication regarding the extent to which inmates’ COVID-19 risk factors—such as their age and preexisting medical conditions—are weighed in evaluating inmates for home confinement.
A Danbury Inmate Bulletin from the Warden dated April 16, 2020 and titled “Criteria for Home Confinement based on COVID-19 Guidelines,” apparently distributed to inmates, indicates that the criteria for home confinement include: “No incident reports in the past 12 months (regardless of severity level)”; “U.S. Citizen”; “PATTERN risk score is MINIMUM”; and “Mental Health Care Level is less than CARE-MH 4.” ECF No. 15-7 at 2. The April 16 Bulletin further indicates that “Other considerations” include age, projected release date, percentage of time served, medical care level, issues related to victims, date of arrival to FCI Danbury, gang-related activity, health concerns of residents in the proposed release plan, and
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medical needs/concerns in the community. Id. A more recent Danbury Inmate Bulletin, dated April 21, 2020 and titled “Updated criteria for Home Confinement based on COVID-19 guidelines,” lists eight criteria that “must” be met to be eligible for home confinement:
1. Primary Offense is not violent; 2. Primary Offense is not sex offense; 3. Primary Offense is not terrorism; 4. No detainer; 5. Mental Health Care Level is less than IV; 6. PATTERN risk score is MIN; 7. No Incident Reports in the past 12 months; 8. Inmate must have served at least 50% of their sentence [bolded in original] ECF No. 15-8 at 1. The April 21 Bulletin gives no indication whether and how inmates’ COVID-19 risk factors are factored into the analysis. 2. Compassionate Release Under 18 U.S.C. § 3582(c)(1)(A), a sentencing court may, upon motion of the Director of the Bureau of Prisons or upon motion of the defendant, reduce a defendant’s term of imprisonment if it finds that “extraordinary and compelling reasons warrant such a reduction.”11 This authority is often referred to as “compassionate release.” Importantly, if the Bureau of Prisons does not bring a motion for compassionate release on behalf of a defendant, the defendant may only bring a motion on his or her own behalf after either “fully exhaust[ing] all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf” or “the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). Since the COVID-19 crisis began, it does not appear that the BOP has issued any updated internal guidance as to the standards to be used in assessing whether there are “extraordinary and
11 The statute further requires the sentencing court to consider the factors set forth in Section 3553(a) to the extent that they are applicable. 18 U.S.C. § 3582(c)(1)(A).
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compelling reasons” warranting a reduction in a defendant’s term of imprisonment. Respondents’ brief points to a BOP program statement that was last updated in January 2019. ECF No. 24-1 at 31 (citing Program Statement 5050.50, available at http://www.bop.gov/policy/ progstat/5050_050_EN.pdf). That document, of course, makes no mention of the current pandemic; nor does it mention the risk of infection inside prisons in general. Instead, it identifies a few extreme situations that might make “compassionate release” appropriate. These extreme cases include: “inmates who have been diagnosed with a terminal, incurable disease” or “an incurable, progressive illness” or “debilitating injury” that has left them “completely disabled” or “capable of only limited self care and . . . confined to a bed or chair more than 50% of waking hours”; inmates who are 65 or older, suffer from “chronic or serious medical conditions related to the aging process,” experience “deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility,” have no prospect of “substantial improvement” in their condition from “conventional treatment,” and have served at least half their sentence; inmates age 65 or older who have served the greater of 10 years or 75% of their sentence; and inmates whose minor children “are suddenly without a family member caregiver due to that caregiver’s death or incapacitation.” Id. Even in these cases, “compassionate release” is far from guaranteed. Instead, the inmate must satisfy a host of criteria, some of which are focused on public safety but others of which include the age at which the inmate committed the offense, whether the inmate lived with the caregiver (in cases of deceased caregivers), and whether the inmate received public funding or had a job prior to incarceration. Id.
For the Bureau of Prisons to bring a motion for compassionate release on behalf of a defendant, a lengthy, multi-tiered administrative process must first play out. First, the Warden must determine that the request warrants approval. Requests do not reach the Warden’s desk,
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however, until “various staff” at the prison have reviewed the request first. ECF No. 24-2 at 27. Next, even if the Warden approves the request, BOP regulations provide that the Director will make a motion under Section 3582(c) only after further review by both the General Counsel and either the Medical Director or the Assistant Director, Correctional Programs Division. 28 C.F.R. § 571.62. Since the beginning of the COVID-19 crisis, however, the Warden has not approved a single request for compassionate release for referral to the General Counsel, and consequently no inmate at FCI Danbury has reached the latter stages of the Bureau’s administrative process. See ECF No. 24-2 at 27 (indicating that, from the beginning of the COVID-19 crisis through May 4, 2020, prison officials have received 241 requests for compassionate release and that, of these, 136 have been processed and denied, 18 have been returned to the inmate seeking further information, 70 are being reviewed by “various staff who need to review the application,” and 17 are awaiting the Warden’s review).
In the event that the Warden denies a request, a defendant may bring a motion on his or her own behalf only after either “fully exhaust[ing] all administrative rights to appeal,” including appeals to the appropriate Regional Director and then to the General Counsel, or else waiting for the 30-day statutory period to expire. 28 C.F.R. §. 571.63; 28 C.F.R. § 542.15.
Where inmates from across the country have managed to bring COVID-19 related motions for compassionate release on their own behalf, they have enjoyed significant success before courts in this District. See ECF No. 24-2 at 52-54 (indicating that approximately 25 out of 48 COVID-19 related motions for compassionate release have been granted in this District alone since the crisis began). IV. DISCUSSION
As noted, Respondents have filed both a motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and a response to the Petitioners motion for a temporary restraining order and
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preliminary injunction. In the discussion below, I deny the Rule 12(b)(1) motion because I find that the Warden’s jurisdictional challenges lack merit; I grant in part and deny in part the motion for temporary restraining order and order expedited discovery and an evidentiary hearing to adjudicate the motion for preliminary injunction; and I deny the Rule 12(b)(6) motion because I find that the Petition states a claim under 28 U.S.C. § 2241. A. The Warden’s Jurisdictional Arguments 1. Rule 12(b)(1) Standard
“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citations and internal quotation marks omitted). “[W]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits. In that case, the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. (citations, quotation marks, and alterations omitted). “A case is properly dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Gonzalez v. Option One Mortgage Corp., 2014 WL 2475893, at *2 (D. Conn. June 3, 2014). 2. Sentencing Finality, the Court’s Authority under Section 2241, and the BOP’s
Statutory Discretion Respondents argue that “[t]his Court lacks authority to divest the BOP and sentencing courts of their jurisdiction to place inmates in home confinement or the sentencing judge’s authority to amend a term of imprisonment.” ECF No. 24-1. This argument is not an obstacle to the temporary restraining order I issue today, because the order does not divest the BOP of any
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authority or infringe on the sentencing judge’s authority to amend a term of imprisonment. It merely directs the Respondents to exercise the authority already conferred on them to place inmates in home confinement and consider requests for compassionate release in a manner that does not violate the Eighth Amendment.
First, Respondents point to well-established law regarding the finality of sentences and the limited, statutory authority of sentencing courts to modify them after they are imposed. See, e.g., Dillon v. United States, 560 U.S. 817, 824 (2010) (“A judgment of conviction that includes a sentence of imprisonment constitutes a final judgment and may not be modified by a district court except in limited circumstances.” (internal quotation marks and alterations omitted)); 18 U.S.C. § 3582(c) (“The court may not modify a term of imprisonment once it has been imposed except that … [listing specific exceptions for “compassionate release” and subsequent lowering of applicable Guideline ranges]”). But it is clear from context that these restrictions apply to sentencing courts. See 18 U.S.C. 3582(a) (referring to the factors that “[t]he court” must consider “in determining whether to impose a term of imprisonment); id. 3582(c) (again referring to the “the court” when stating “[t]he court may not modify a term of imprisonment”); id. 3582(c)(1)(B) (allowing “the court” to modify a term of imprisonment to the extent allowed by statute or by Rule 35); Fed. R. Civ. Crim. P. 35(a) (“Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.”). It is less clear whether they apply to a judge presiding over a 2241 petition who did not sentence the petitioner—a common situation, because 2241 petitions must be filed in the jurisdiction of the place of confinement rather than the jurisdiction of the sentencing court. Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (“[T]he general rule [is] that for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement.”)
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I need not decide whether I have authority to modify the Petitioners’ sentences, however, because the order I impose today does not modify any sentences. What it does do is ensure that inmates who face an imminent risk of serious illness or death from the rapid spread of the coronavirus within the facility receive prompt review of either a request for compassionate release or consideration for home confinement, both of which are within the statutory authority of the BOP.
Respondents also argue that “release” is not an available remedy to a Section 2241 petitioner who challenges the conditions of his or her confinement, citing cases from courts outside the Second Circuit that have so held. See, e.g., Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (“Glaus’s [2241] habeas corpus petition would be proper if release were among the possible remedies for an Eighth Amendment deliberate indifference claim. Unfortunately for Glaus, it is not. If an inmate established that his medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for proper treatment, or to award him damages; release from custody is not an option.”). But in their motion for a temporary restraining order, Petitioners do not seek “release from custody.” Instead, they seek (among other relief) “enlarge[ment] to home confinement,” ECF No. 14 at 112; in home confinement, they would remain within the “custody” of the BOP. See 18 U.S.C. 3624(c)(2) (authorizing the BOP to make home confinement placements under a subsection entitled “[p]release custody”); see also United States v. Hope, 2018 WL 358490, at *4 (D. Mont. Jan. 10, 2018) (“When a defendant is transferred pursuant to Section 3624(c), he remains under BOP custody until his prescribed term of imprisonment expires.”). In any event, Respondents cite no Supreme Court or
12 It is true that one of the forms of relief sought in the habeas petition itself is “release from custody.” ECF No. 1 at 66 (praying for the issuance of a writ of habeas corpus or injunctive relief “requiring Respondents to release from custody or to home confinement members of the [medically vulnerable] Subclass ….”).
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Second Circuit decision suggesting that release is categorically unavailable to a Section 2241 petitioner asserting an Eighth Amendment claim. To the contrary, the Second Circuit affords habeas petitioners bail, albeit “in unusual cases, or when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001).
Although Mapp does not mention Section 2241, it involved a habeas petition brought on behalf of immigration detainees, who commonly rely on Section 2241. See, e.g., Basank v. Decker, 2020 WL 1953847 (S.D.N.Y Apr. 23, 2020) (2241 petition filed by ICE detainees seeking release because of the public health crisis posed by COVID-19); Ferreyra v. Decker, 2020 WL 1989417 (S.D.N.Y. Apr. 27, 2020) (same). Further, the Mapp court’s statement of its holding makes clear that a federal court’s bail authority sweeps broadly across the habeas spectrum: “We hold that the federal courts have the same inherent authority to admit habeas petitioners to bail in the immigration context as they do in criminal habeas cases.” Mapp, 241 F.3d at 223. During the ongoing pandemic, district courts within the Circuit have relied on the authority of Mapp to issue bail or temporary release orders to 2241 petitioners who have argued that their conditions of confinement and medical histories make them especially vulnerable to serious illness from COVID-19. See, e.g., Basank, 2020 WL 1953847, at *13 (“Even if [ICE detainees petitioning under Section 2241] had not met the requirements for a preliminary injunction, the Court would release them on bail pending final resolution of their habeas claims under the Second Circuit’s decision in Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001).”); Ferreyra, 2020 WL 1989417, at *12 (same); Coronel v. Decker, 2020 WL 1487274, at *8-9 (S.D.N.Y. March 27, 2020) (finding that “Petitioners have raised substantial claims” and that “[r]elease is . . . necessary to make the habeas remedy effective” because “[i]f Petitioners were to
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remain detained, they would face a significant risk that they would contract COVID-19—the very outcome they seek to avoid.”).
Respondents also argue that “Petitioners . . . are seeking to divest the BOP of its statutory and regulatory discretion as to which inmates should be placed on home confinement.” ECF No. 24-1 at 47. Here, Respondents invoke the language of Section 3621(b), which states, in part, that “[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). But this provision is not an obstacle to the order I impose today either, for several reasons. First, Petitioners’ argument that Respondents are not adequately exercising their authority under Section 3624, as expanded by the CARES Act and the Attorney General’s memo, does not require the Court to “review[]” “a designation of a place of imprisonment under this subsection,” i.e., under subsection 3621(b). 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,” a term that some courts have construed to cover halfway houses as well as prisons, see, e.g., Goldings v. Winn, 383 F.3d 17, 26 (1st Cir. 2004), subsection 3624(c)(2) provides specific, independent authority to place inmates in home confinement.13 So in finding preliminarily that Respondents are not exercising their authority under subsection 3624(c)(2) in a
13 To be sure, the two are not unrelated, and the Second Circuit has suggested, in dicta, that, while the broad authority in subsection 3621(b) is discretionary, the “prerelease” provisions of Section 3624, which includes the home confinement authority of subsection 3624(c)(2), “impose[] an affirmative, discretion less obligation on the BOP, where practicable, to send an offender to a less-restrictive facility during a transitional period prior to final release.” Levine v. Apker, 455 F.3d 71, 75 (2d Cir. 2006) (citing cases, including Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004) (noting the “shall” language in Section 3624(c)(1))).
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constitutionally adequate manner, I am not “review[ing]” the BOP’s “designation of a place of
imprisonment” under subsection 3621(b).14 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. Triestman v. United States, 124 F.3d 361, 378 (2d Cir. 1997) (“[W]e
must construe a federal statute to avoid constitutional questions where such a construction is
reasonably possible. By construing the habeas-preserving paragraph of Section 2255 to provide
that habeas corpus remains available to federal prisoners when Section 2255 is not available and
when the failure to allow for some form of collateral review would raise serious constitutional
questions, we do just that.”); see also Webster v. Doe, 486 U.S. 592, 603 (1988) (“[W]here
Congress intends to preclude judicial review of constitutional claims its intent to do so must be
clear . . . . We require this heightened showing in part to avoid the serious constitutional
question that would arise if a federal statute were construed to deny any judicial forum for a
colorable constitutional claim.” (internal citations and quotation marks omitted)).15
14 18 U.S.C. § 3625, which makes the provisions of the Administrative Procedure Act inapplicable to designation, transfer, and placement decisions by the BOP, also is not a bar to Petitioners’ challenge, which is brought under the habeas statute, 28 U.S.C. § 2241, not the Administrative Procedure Act. 15 During oral argument, Respondents also cited two decisions by another judge on this court, Fournier v. Zickefoose, 620 F. Supp.2d 313 (D. Conn. 2009) and United States v. Ford, 2009 WL 3059129 (D. Conn. Sept. 21, 2009). But neither decision suggests that the Court is foreclosed from reviewing whether Respondents are exercising their authority under Sections 3624(c)(2) or 3582(c)(1)(A) in conformity with the Eighth Amendment. In Fournier, the Court reviewed the petitioner’s Section 2241 claim regarding the BOP’s refusal to allow her to serve the remainder of her sentence in a halfway house or home confinement but found that it failed on the merits. Fournier, 620 F. Supp. 2d at 317-18 (noting that “[t]he general rule is that the Fifth Amendment’s Due Process Clause does not confer any right upon an inmate to any particular custody or security classification,” that the BOP had acted “within its authority to place Fournier” in a halfway house for a shorter period than she desired, and that her Eighth Amendment claim failed because she “neither claims that she has been deprived of the minimal civilized measure of life’s necessities” nor asserts that the Warden acted with a sufficiently culpable state of mind). Similarly, in Ford, the court found that the defendant’s challenge to his designation to FCI Fairton failed on the merits, concluding that “the BOP [] act[ed] well within its authority under section 3621” in making the designation. 2009 WL 3059129, at * 1.
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3. The Prison Litigation Reform Act and Res Judicata Respondents also raise objections based on the Prison Litigation Reform Act, 18 U.S.C. §
3626 (the “PLRA”), and res judicata, or claim preclusion. ECF No. 24-1 at 54-58. For the reasons set forth below, I find that neither objection precludes the order I enter today. a. The PLRA
The provisions of the PLRA set forth in 18 U.S.C. § 3626 impose restrictions on the types of relief federal courts can award in “any civil action with respect to prison conditions.” 18 U.S.C. § 3626(a). Among other things, the statute requires that prospective relief—the type Petitioners seek in this case—be “narrowly drawn, extend[] no further than necessary to correct the violation of the Federal right, and [be] the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a). In addition, the statute imposes strict prerequisites before a federal court may issue a “prisoner release order,” which is broadly defined as “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 non-admission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4). Those prerequisites include the failure of some other, earlier-imposed remedy to address the deprivation of the federal right and the convening of a three-judge court. Id. § 3626(a)(3). None of these provisions apply, however, unless the proceeding is a “civil action with respect to prison conditions,” a term that “means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2) (emphasis added). Whether the requirements of Section 3626 apply here turns on whether the italicized language in the
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preceding sentence describes this case. For the reasons set forth below, I find that it does, and thus that Section 3626 is inapplicable.
The Petitioners in this case are challenging the conditions of their confinement but they are also challenging the “fact . . . of confinement in prison.” Specifically, they contend that their medical histories and the outbreak at FCI Danbury combine to place them in grave danger from COVID-19; that at current facility population levels, they and other FCI Danbury inmates cannot comply with CDC guidelines for physical distancing; and that “[a]s long as prisoners are unable to practice physical distancing, any other mitigating steps will fail to decrease meaningfully the risk of COVID-19 infections at FCI Danbury.” ECF No. 1 at 21. The Petition seeks an order either releasing them from custody altogether or releasing them to home confinement, id. at 66, because, “[a]bsent significant de-densifying, people who are confined in prisons, jails, and detention centers, as well as staff, will find it impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission.” Id. at 26; see also id. at 34 (“The only effective way to minimize the potential devastation from COVID-19 in BOP facilities generally and at FCI Danbury in particular is to downsize immediately the incarcerated population….”). In short, Petitioners contend that the fact of their confinement in prison itself amounts to an Eighth Amendment violation under these circumstances, and nothing short of an order ending their confinement at FCI Danbury will alleviate that violation.16
These allegations show that, under the plain language of the definition quoted above, this is a habeas proceeding challenging “the fact . . . of confinement in prison.” A “fact,” when used
16 This contention distinguishes this case from the situation in Alvarez v. Larose, 20cv782-DMS(AHG) (S.D. Cal. May 9, 2020) (attached to Respondents’ Notice of Additional Authority, ECF No. 29 at 16), where the court recently reached a different conclusion about the applicability of Section 3626 based in part on the fact that “Plaintiffs fail to argue there are no set of conditions of confinement that would be constitutionally sufficient.” ECF No. 29 at 16. Here, Petitioners are making precisely that argument as to the medically vulnerable subclass.
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with “the”, refers to, among other things, the “actual occurrence of an event” or the “real existence of a situation or state of affairs.” Oxford English Dictionary (3d ed., Sept. 2014), https://www.oed.com/view/Entry/67478 (emphasis original); see also Webster’s Third New International Dictionary (defining a “fact” as, among other things, “something that has actual existence,” “an occurrence, quality, or relation the reality of which is manifest in experience or may be inferred with certainty,” and “an actual happening in time and space.”). “Confinement” in turn, is defined as “the act or state of being confined,” i.e., “imprison[ed,” Webster’s Third New International Dictionary,—a status that plainly applies to each of the Petitioners and those they seek to represent in this case. “[T]he fact . . . of confinement,” then, refers generally to the existence of the state of being imprisoned. Because Petitioners contend that the Eighth Amendment violation inheres in their incarceration at Danbury FCI and cannot be remedied unless they are removed from that setting, Petitioners are challenging the fact—or “existence”— of their confinement. See also Wilson v. Williams, 2020 WL 1940882, at *5, 10 (N.D. Ohio Apr. 22, 2020) (concluding that a similar habeas petition brought by inmates at FCI Elkton “ultimately seek[s] to challenge the fact or duration of confinement,” as well as the conditions of confinement, and that the petition is not subject to the PLRA, 18 U.S.C. § 3626); Wilson v. Williams, 20-3447, ECF No. 23-1 (6th Cir. May 4, 2020) (denying the Government’s motion to stay, holding that, “[w]here a petitioner claims no set of conditions would be constitutionally sufficient, we construe the petitioner’s claim as challenging the fact of the confinement,” and concluding that the PLRA does not apply.).
The above construction of the statutory language accords meaning to all parts of the definition of “civil action with respect to prison conditions”—following a well-established canon of statutory construction. See, e.g., U.S. v. Bernier, 954 F.2d 818, 819-20 (2d Cir. 1992)
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(“[C]ourts must give effect to every word of a statute where possible. . . . The sole exception to this rule of construction applies where the statute groups words together in a list, in which case the words should be given a related meaning. . . . No ‘list’ appears in section 924(c), which contains only two words. Accordingly, each word should be given separate effect according to its plain meaning.”). Because the first part of the definition already limits its scope to proceedings “with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison,” habeas petitions unrelated to conditions of confinement—such as challenges to the validity of a conviction or the length of the sentence imposed by the court—are already excluded from the scope of the PLRA. Thus, to interpret the habeas clause of the definition to refer only to these types of petitions would make the clause superfluous. By contrast, interpreting the clause to refer to a subset of habeas petitions “with respect to the conditions of confinement . . . ”—namely, those that challenge the “fact or duration of confinement” by claiming, for example, that no constitutional conditions of confinement are possible under the circumstances—gives effect to all parts of the definition. Put differently, read as a whole, see U.S. v. Lockhart, 749 F.3d 148, 154 (“[I]t is well established that statutory phrase should not be construed in isolation; we read statutes as a whole.” (internal quotation marks and citations omitted), the definition in subsection (g)(2) strongly suggests that there are habeas proceedings that challenge both the conditions of confinement and the “fact or duration of confinement,” and that such petitions are exempt from the statute. The present case presents just such a petition.17
17 To the extent that its meaning is unclear, there is little law that further illuminates the phrase “but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). I could find no legislative history that shed real light on the phrase, nor any case law within the Second Circuit that explicates it. As Respondents note, the Second Circuit has suggested, in dicta, that the PLRA applies to at least some habeas petitions challenging conditions of confinement. Jones v. Smith, 720 F.3d 142, 145 n.3 (2d Cir. 2013)
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b. Res Judicata
Respondents’ res judicata argument points out that two of the petitioners have filed
motions for “compassionate release” under 18 U.S.C. § 3582(c)(1)(A), and that one of those
motions—filed by Petitioner Cassidy—was denied without prejudice by the sentencing judge.
(The motion has since been renewed, reportedly following Mr. Cassidy’s efforts to exhaust his
administrative remedies under Section 3582(c)(1)(A), and is pending before that judge.)
Respondents assert that “Petitioner Cassidy does not simply get a ‘do-over’ in the District of
Connecticut after his same claim was rejected by” his sentencing judge. ECF No. 24-1 at 54-55.
During oral argument, Petitioners’ counsel argued that Section 3582(c)(1)(A) and the Eighth
Amendment consist of different elements and apply different legal standards, and so there would
be no preclusive effect on this case from a ruling by a sentencing judge denying a Section 3582
motion.
(after noting that an earlier decision had held that a habeas petition was not a “civil action” for purposes of the fee requirements of the PLRA, stating as follows: “We recognize that [the earlier decision] spoke in general terms to the effect that ‘habeas corpus petitions’ are not civil actions covered by the PLRA. We nonetheless assume without deciding that, in so saying, the court meant habeas corpus petitions that challenge criminal convictions and sentences, and not petitions, sometimes brought under 28 U.S.C. § 2241, that complain of conditions of confinement, which are analogous to suits under 42 U.S.C. § 1983 complaining of conditions of confinement. The logic of our [earlier decision] was to distinguish between civil actions covered by the PLRA and others based on the type of relief sought, rather than the statute under which relief was sought.”). But, for one, neither Jones nor the earlier decision it cites interpreted Section 3626(g)(2), as Section 3626 was not at issue in those cases, and it is unclear whether its definition of “civil action with respect to prison conditions” applies to other provisions of the PLRA. Moreover, given the state of the law in the Second Circuit, the Jones dicta does not clearly address whether the PLRA applies to habeas petitions that challenge both conditions of confinement and the fact or duration of confinement. Before and after Jones, district courts within the Second Circuit have entertained cases that challenged conditions but did not seek release from confinement. See, e.g., Ilina v. Zickefoose, 591 F. Supp.2d 145, 150 (D. Conn. 2008) (denying motion to dismiss 2241 petition challenging conditions of confinement where prisoner sought “restoration of needed medical care at FCI Danbury”); Anderson v. Williams, 2016 WL 7217588, at *2 (evaluating on the merits Section 2241 petition challenging conditions of confinement and motion for preliminary injunction to ensure that petitioner received certain medical tests and treatment). The Jones dicta is best read to suggest that it is these types of petitions that fall within the ambit of the PLRA (though not necessarily Section 3626). To the extent that Respondents read Jones to equate “habeas corpus petitions that challenge criminal convictions and sentences” with the term “habeas corpus proceedings challenging the fact or duration of confinement in prison” in subsection (g)(2)—a statutory provision that, again, the Jones court did not address— such a reading is inconsistent with the plain language of subsection (g)(2) for the reasons set forth above.
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This argument raises novel issues—including whether an inmate could raise an Eighth Amendment claim in a motion brought under Section 3582(c)(1)(A) and whether a ruling on the merits of such a motion (as opposed to a mere denial without prejudice) should be treated as a judgment having claim preclusive effect. See Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 366 (2d Cir. 1995) (“The doctrine of res judicata, or claim preclusion, holds that following entry of a valid final judgment, the parties to the suit and their privies are thereafter bound not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” (internal quotation marks omitted)). For the moment, however, I need not decide these issues, because Respondents have not suggested that there are inmates falling in the medically vulnerable subclass whose Section 3582 motions have been denied on the merits by their sentencing judges. Should there be, the Respondents may file a motion asking that those persons be excluded from the group being prioritized for home confinement review under the order I issue today, in which case I will likely need to decide the issues set forth above. Any such motion should attach a copy of the judge’s ruling denying the Section 3582(c)(1)(A) motion. 4. Exhaustion18
Respondents argue that the Petitioners have failed to exhaust administrative remedies. ECF No. 24-1 at 42-43, 58-65. They make this argument with respect to both Petitioners’
18It is debatable whether the exhaustion requirement for a Section 2241 habeas petition should be treated as a “jurisdictional” issue rather than as an affirmative defense. As discussed below, the requirement is judge-made, rather than statutory, and is subject to various exceptions. Nonetheless, because Respondents classify it as a “jurisdictional” flaw and because some district courts within the Second Circuit have as well, see e.g., United States v. Grajales, 2019 WL 2617027, at *2 (E.D.N.Y. June 26, 2019); but see Oliva v. INS, 1999 WL 61918, at *3 (S.D.N.Y. Feb. 10, 1999), I treat it under the heading of jurisdictional issues.
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requests for release to home confinement and their requests for “additional ‘safety’ measures.” Id. at 43. Here, I address the exhaustion issue only with respect to the Petitioners’ requests for release to home confinement, as I grant the TRO only so that the medically vulnerable class can be properly considered for that type of relief and for compassionate release.
Exhaustion in the context of Section 2241 habeas petitions is a judge-made rule subject to judge-made exceptions. U.S. ex rel. Scranton v. State of New York, 532 F.2d 292, 294 (2d Cir. 1976) (“While 28 U.S.C. [] Section 2241 does not by its own terms require the exhaustion of state remedies as a prerequisite to the grant of federal habeas relief, decisional law has superimposed such a requirement in order to accommodate principles of federalism.”); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001) (“[O]ur decision today [applying the cause and prejudice standard for a Section 2241 habeas petitioner who had defaulted on his administrative remedies] rests solely on the requirement of administrative exhaustion as spelled out in our decisional law . . . .” (emphasis added)); McPherson v. Lamont, 2020 WL 2198279, at *6 (D. Conn. May 6, 2020) (“Because Sec. 2241’s exhaustion requirement is a judicial invention, it is amenable to judge-made exceptions.”).19 Those exceptions include futility (“exhaustion may be unnecessary where it would be futile, either because agency decisionmakers are biased or because the agency has already determined the issue”); incapability (“exhaustion may be
19 At one point, Respondents assert that the exhaustion requirement of the Prison Litigation Reform Act—42 U.S.C. § 1997e—applies to habeas proceedings. ECF No. 24-1 at 62. This is an inaccurate statement of the law in the Second Circuit. Carmona, 243 F.3d at 634 (noting Second Circuit’s earlier holding that Section 1997e does not apply to habeas proceedings brought under 28 U.S.C. § 2254 and stating that, “[d]oubtless the same rule should obtain in Section 2241 cases as in Section 2254 petitions,” and that “[a] number of other circuits—relying primarily on the ground that habeas proceedings are not civil actions—have ruled the [Prison] Litigation Reform Act inapplicable to habeas actions brought by federal prisoners under Section 2241.”); United States v. McGriff, 468 F. Supp.2d 445, 447 (E.D.N.Y. 2007 )(“A habeas petition [brought under Section 2241] is not subject to the administrative exhaustion requirement of the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a); instead it is subject to the judicially-created requirement that federal prisoners must exhaust their administrative remedies prior to filing a petition for habeas relief.” (internal quotation marks and citations omitted)).
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unnecessary where the administrative process would be incapable of granting adequate relief”); and undue prejudice (“an unreasonable or indefinite timeframe for administrative action may sufficiently prejudice [petitioners] to justify a federal court in taking a case prior to the complete exhaustion of administrative remedies”). Washington v. Barr, 925 F.3d 109, 118-19 (2d Cir. 2019); see also Gonzalez v. Perrill, 919 F.2d 1, 2 (1990) (In Section 2241 case, noting that “[t]he controlling standard is unambiguous: an appellant must exhaust his administrative remedies before seeking federal review of his conviction unless administrative procedures are unavailable or are incompetent to provide adequate redress.”).
The Petitioners have set forth sufficient facts to support a finding that at least the final exception—undue prejudice from delay—applies here. As noted above, the Warden has considered only 159 inmates for home confinement20 to date and has not yet even addressed 44% of the compassionate release requests. Further, even after the Warden makes a decision, the BOP’s administrative remedy process involves two additional layers of review (by the Regional Director and General Counsel), and each layer involves a new form and a new mailing. See 28 C.F.R. § 542.15. Given the rapid spread of COVID-19 at FCI Danbury, as evidenced by the number of positive tests among inmates and staff to date, Petitioners have shown that that they would likely suffer irreparable harm if they were required to exhaust the administrative remedy process before seeking relief in court. Accordingly, I find that the Petitioners are excused from exhaustion with respect to their claims seeking release to home confinement.21
20 In her declaration, the Warden states that “[i]nmates do not need to apply to be considered for home confinement,” although they may do so. ECF No. 24-2 at 22. 21 Respondents also assert that “[a]s release from custody or placement in home confinement is not a remedy available under a 28 U.S.C. § 2241 conditions of confinement habeas, an exhaustion analysis is not essential with respect to those claims.” ECF No. 24-1 at 43. They cite no authority for the notion that “release from custody or placement in home confinement is not a remedy” for Section 2241 claims challenging conditions of confinement, however, and, as discussed above, several district courts within the Second Circuit have released Section 2241
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B. The Petitioners’ Request for a Temporary Restraining Order22 1. Legal Standard
“It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). In general, a party seeking a preliminary injunction or temporary restraining order “must . . . show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the party's favor, and that an injunction is in the public interest.” American Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015) (citing Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). “A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citation omitted). The burden on the moving party is higher where, as here, that party seeks a mandatory injunction—that is, an injunction commanding a positive act, as opposed to one that merely maintains the status quo. The Second Circuit has instructed that a mandatory injunction “should issue ‘only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.’” Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985)).
petitioners challenging their conditions of confinement in light of COVID-19, relying on the broad authority to grant bail in habeas cases set forth in Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). 22 The rules governing habeas proceedings allow for application of the Federal Rules of Civil Procedure, including Rule 65 governing temporary restraining orders and preliminary injunctions, “to the extent that they are not inconsistent with any statutory provisions or these rules.” Rule 12 of the Rules Governing Section 2254 Cases in the United States District Court; see also Rule 1(b) (“The district court may apply any or all of these rules to a habeas corpus petition not covered by [28 U.S.C. § 2254].”).
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The Petitioners seek a temporary restraining order to vindicate two somewhat distinct constitutional claims. As to the subclass of medically vulnerable inmates at high risk of serious illness or death from COVID-19, the Petitioners’ chief complaint is the Warden’s failure to make prompt, meaningful use of her authority to place inmates on home confinement and to grant compassionate release —the only measures they contend are capable of offering such inmates adequate protection from COVID-19. With respect to the broader class consisting of all inmates at FCI Danbury, the Petitioners claim that the Warden has failed to implement adequate safety measures to contain the spread of the virus and mitigate the risks of infection, including adequate screening, testing, isolation, quarantine, sanitation, hygiene, and personal protective equipment. I address each of these claims in turn. 2. The Medically Vulnerable Subclass and the Warden’s Home Confinement and
Compassionate Release Authority a. Likelihood of Success on the Merits – Eighth Amendment
Under the Eighth Amendment, prison officials must “ensure that inmates receive adequate food, clothing shelter, and medical care, and must take reasonable measure to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prisoners have a right, in other words, to “humane conditions of confinement.” Id. “[H]aving stripped [incarcerated persons] 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.” Id. at 833.
Prison officials violate a prisoner’s Eighth Amendment right to humane conditions of confinement when two conditions are met. First, under the “objective” component of the analysis, “the alleged deprivation must be, ‘objectively,’ sufficiently serious.” Id. at 834.
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Second, under the “subjective” component, prison officials must have acted with a “sufficiently culpable state of mind,” namely, “‘deliberate indifference’ to inmate health or safety.” Id. i. Objective Component
To satisfy the objective component, “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. Here, this requirement is easily satisfied. Courts have long recognized that prison officials have an Eighth Amendment duty to protect inmates from exposure to communicable disease. See, e.g., Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect inmates from infectious disease.”); Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981) (“[F]ailure to adequately screen newly arrived inmates for communicable disease” represents an “(omission) sufficiently harmful to evidence deliberate indifference to serious medical needs” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))); id. (“[I]t is unnecessary to require evidence that an infectious disease has actually spread in an overcrowded jail before issuing a remedy.”).
It is undisputed that there is an active and serious outbreak of COVID-19 at FCI Danbury. Attorney General Barr’s April 3rd memorandum specifically identifies FCI Danbury as one of three federal prisons experiencing “significant levels of infection.” ECF No. 24-2 at 48. A recent test of the inmates at the satellite prison—conducted following the intervention of Senator Chris Murphy—revealed that 20 of the 143 women at the facility had active infections. ECF No. 24-2 at 25. In addition, 62 other inmates have been tested for COVID-19, and 49 of these have tested positive, for a total of 69 positive tests. ECF No. 24-2 at 25. The high rate of positive tests outside of the satellite prison, and significant questions raised by the Petitioners as to the adequacy of testing, suggest this number may underrepresent the true number of COVID-
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19 infections at FCI Danbury. But even if that were not the case, the undisputed evidence leaves no doubt that FCI Danbury is experiencing an active outbreak of COVID-19.
Further, the structure of the three facilities at FCI Danbury—even assuming that all reasonable precautions and safety measures are being fastidiously observed (which the Petitioners dispute)—heightens the risk of transmission. The cornerstone of the public health response to COVID-19 is to practice “social distancing.” In the State of Connecticut, for example, social gatherings of more than 5 people continue to be prohibited, and members of the public are directed to wear face coverings wherever a six-foot distance cannot be maintained. Coronavirus Disease 2019 (COVID-19), CT.gov, https://portal.ct.gov/Coronavirus (last visited May 7, 2020); see also Social Distancing, Centers for Disease Control and Prevention (April 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html (“Limiting face-to-face contact with others is the best way to reduce the spread of [COVID-19],” including staying at least 6 feet from other people and avoiding group gatherings.). In the meantime, the vast majority of the 140 inmates at the satellite prison live and sleep in a perpetual large gathering—a single dormitory hall with bunk beds separated by four feet or less, with shared common spaces such as bathrooms and showers. See ECF No. 1 at 12-13. The inmates at the camp and the men’s prison fare little better in terms of social distancing. Most of the inmates at the camp and the men’s prison live in dorms that house roughly 50 people each. ECF No. 1 at 14. Put differently, at a time when public health officials are counseling strict adherence to social distancing practice, most inmates at FCI Danbury live in close contact with between 50 and 140 other inmates, in a facility with a serious, active COVID-19 outbreak.
It is also undisputed—and, indeed, by now common knowledge—that COVID-19 is a highly dangerous disease that poses a significant risk of severe illness and death, particularly for
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members of the Medically Vulnerable Subclass. See ECF No. 1-1 at 6 (“Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.”); see also Wilson v. Williams, 2020 WL 1940882, at *8 (N.D. Ohio Apr. 22, 2020) (“For infected inmates, the virus can lead to pneumonia. In the wors[t] pneumonia cases, COVID-19 victims suffer diminishing oxygen absorption, with resulting organ failure leading to death.”). According to one report, the mortality rate from COVID-19 is 8.4% for individuals with hypertension, 8.0% for individuals with chronic respiratory disease, 7.6% for individuals with cancer, and 13.2% for individuals with cardiovascular disease. ECF No. 1 at 9-11 (citing Report of WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization at 12 (Feb. 28, 2020), https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19final-report.pdf (last visited May 7, 2020)).
In short, with respect to Petitioners and other members of the Medically Vulnerable Subclass, Petitioners have demonstrated a likelihood of success on the merits on their claim that they are “incarcerated under conditions posing a substantial risk of serious harm.” ii. Subjective Component
Under the subjective prong, a prison official may be held liable for inhumane conditions of confinement “only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847; see also Brock v. Wright, 315 F.3d 158, 164 (2d Cir. 2003) (“In order to prove deliberate indifference in a challenge to [a] prison inmate’s conditions of confinement, the prisoner must show that a particular defendant ‘knows of and disregards an excessive risk to inmate health or safety.’” (quoting Farmer, 511 U.S. at 837)). In the context of threats to an inmate’s health, a
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plaintiff must show that the defendant “acted with deliberate indifference to [the plaintiff’s] medical needs.” Brock, 315 F.3d at 162 (citing Estelle, 429 U.S. at 104). In other words, the Petitioners must show that “the prison official knew of and disregarded the plaintiff’s serious medical needs.” Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)). “Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Here, it cannot be disputed that the Respondent Warden knew of the substantial risk of serious harm posed by the COVID-19 outbreak at FCI Danbury. On April 3—more than one month ago—Attorney General Barr issued an urgent memo to the Bureau of Prisons regarding COVID-19, noting the “significant levels of infection at several of our facilities, including . . . FCI Danbury.” ECF No. 24-2 at 48. The Warden and her staff at FCI Danbury understood the threat posed by COVID-19 at least as early as March 19, 2020, when they began modifying the operations at all three FCI Danbury facilities in response. ECF No. 24-2 at 9-11. Further, given the pervasive daily media coverage of the pandemic, the seriousness of the threat posed by COVID-19—and the particular vulnerability of elderly individuals as well as those with certain preexisting medical conditions—are so well known that it would be implausible to suggest that prison officials are unaware of this risk. See Farmer, 511 U.S. at 842 (“[A] fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”).
The parties vigorously dispute, however, whether prison officials have acted with deliberate indifference to the risk posed by COVID-19. The Petitioners contend that the Warden’s failure to transfer medically vulnerable prisoners from FCI Danbury to home
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confinement “in any meaningful numbers” constitutes deliberate indifference. ECF No. 15 at 39. I find that they have shown a likelihood of success on the merits with respect to this contention. I also find that Warden’s handling of “compassionate release” requests under Section 3582(c)(1)(A) bolsters the finding of deliberate indifference. Home Confinement
As discussed above, the CARES Act has given the Bureau of Prisons explicit authority to place any inmate on home confinement, and the Attorney General has made the emergency findings triggering that authority. He has also directed the Bureau of Prisons in urgent terms 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 . . . .” ECF No. 24-2 at 48-49 (emphases added). His April 3, 2020 memorandum could not have conveyed a greater sense of urgency, instructing the Bureau to “begin implementing this directive immediately at the facilities I have specifically identified,” noting that “time is of the essence,” and asking for implementation “as quickly as possible.” Id. at 49.
In spite of the explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortations of the head of the government department in which the Bureau of Prison sits, the implementation of this directive at FCI Danbury has been slow and inflexible. The Warden indicates that only 159 inmates have been reviewed since March 26, and a mere 21 inmates have actually been placed on home confinement, out of a population of roughly 1,000. ECF No. 23-24. Moreover, the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness of the health risk faced by vulnerable inmates. Indeed,
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the most recent inmate bulletin regarding home confinement criteria does not even expressly mention health risks or how they will be evaluated. ECF No. 15-8 (noting “updated criteria for Home Confinement based on COVID-19 guidelines” but not specifying any guidelines and listing only non-health-related criteria)). And the Warden’s description of the home confinement review process suggests that, rather than prioritizing review based on age, medical history, and COVID-19 risk factors, FCI Danbury is focusing on those who have served the larger portions of their sentences. ECF No. 24-2 at 23.) In fact, the inmate bulletins make clear that those who have not served a specified percentage of their sentences are categorically disqualified: any inmate who has not served at least 50% of his or her sentence is deemed ineligible for home confinement, irrespective of vulnerability to COVID-19. ECF Nos. 15-7, 15-8.23 Other criteria in the inmate bulletins are similarly unrelated to medical vulnerability and, at best, only tangentially related to public safety. For example, any inmate with an incident report in the past 12 months—no matter the seriousness—is deemed ineligible for home confinement, regardless of any health condition he or she might have. ECF Nos. 15-7, 15-8. At oral argument, the Government suggested that such an inmate could seek compassionate release as an alternative. But that is a dead end at FCI Danbury: Of the 241 requests for compassionate release filed since the COVID-19 crisis began, the Warden has signed off on exactly 0.24 ECF No. 24-2 at 28.
Especially in light of the Barr memos, it is unimaginable that the Respondents would not be taking COVID-19 medical risk factors—some of which, by some estimates, give an inmate a
23 The Warden’s declaration puts it slightly differently: “BOP is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentence, or (2) have 18 months or less remaining in their sentence and have served 25% or more of their sentence.” ECF No. 24-2 at 23. 24 This is particularly troubling in light of the fact that numerous judges, including the undersigned, have denied motions for compassionate release because the inmate has not first waded through the statutorily mandated administrative process for requesting compassionate release from the Warden—a process that now appears to be the definition of futile.
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better than 10% chance of dying should the inmate contract COVID-19—into consideration in reviewing inmates for home confinement. But, at the very least, the lack of any express mention of such factors in both the inmate bulletins and the Warden’s declaration suggests that prison officials are not giving these risk factors the weight they plainly deserve.
The Warden argues that the measures taken at FCI Danbury to protect inmates from COVID-19, including screening, testing, quarantining, isolation of COVID-19 positive inmates, enhanced sanitation, and widespread use of personal protective equipment, show that she has not disregarded, or acted with deliberate indifference toward, the threat posed by COVID-19. But even accepting the Warden’s account of the scope, consistency, and effectiveness of these measures—an account the Petitioners vigorously dispute—Petitioners have shown a likelihood of success on the merits of their claim that the Warden’s inadequate implementation of the home confinement authority in the CARES Act constitutes “deliberate indifference” under the Eighth Amendment. The Warden does not dispute the impossibility of instituting effective social distancing measures in facilities, like FCI Danbury, where the vast majority of the population lives and sleeps in large dormitory halls lined with bunk beds, sharing bathroom and shower facilities. See ECF No. 24-1 at 73. But without social distancing measures, reliable containment of a highly contagious disease is nearly impossible. This makes transfer to home confinement (or compassionate release, discussed below) the only viable measure by which the safety of highly vulnerable inmates can be reasonably assured. While the Warden is free to exercise discretion in choosing among equally effective measures to protect inmates from serious risks, choosing inevitably inadequate measures to the exclusion of a plainly superior one constitutes deliberate indifference. See, e.g., Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“[M]ere disagreement over the proper treatment . . . does not create a constitutional claim . . .
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[s]o long as the treatment given is adequate.”); id. (“In certain instances, a physician may be deliberately indifferent if he or she consciously chooses an easier and less efficacious treatment plan.” (internal quotation marks and citations omitted)); see also Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (reasonable jury could find that putting prisoner into protective custody but failing to protect her from a risk that persisted even in protective custody was unconstitutional).
Put somewhat differently, even with the measures that the Warden has put in place, due to the impossibility of adequate social distancing, confinement at FCI Danbury—due to the very structure of the facility—continues to pose a grave risk to vulnerable inmates’ health. For this reason, Congress has provided statutory authority for, and the Attorney General has directed the warden to “immediately” implement, the broad use of home confinement for vulnerable inmates. Under the circumstances of the present crisis, the Warden’s failure to make prompter, broader use of this authority to protect the lives of vulnerable inmates is likely to constitute deliberate indifference.
In short, by failing to make meaningful use of her home confinement authority, the Warden has failed to implement what appears to be the sole measure capable of adequately protecting vulnerable inmates—a measure the Attorney General directed the BOP to implement “immediately” and with “dispatch”—in favor of measures that, even if they were fully and painstakingly implemented, would still leave vulnerable inmates subject to a grave risk to their health. Petitioners have thus shown a likelihood of success on the merits on their claim that, with respect to the Medically Vulnerable Subclass, the Warden has disregarded a “substantial
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risk of serious harm” by “failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847.25
Compassionate Release under Section 3582(c)(1)(A)
The Warden has another source of authority she may use to remove medically vulnerable
inmates from the dangerous environment at FCI Danbury, and at the same time reduce the
density within the prison for all inmates. Unfortunately, the record in this case makes clear she
is not making adequate use of that authority either. Specifically, neither the Warden nor the BOP
as a whole is implementing Section 3582(c)(1)(A) in the way Congress intended when it adopted
the First Step Act, and neither has made any noticeable effort to update the process for
evaluating “compassionate release” requests to take account of the COVID-19 pandemic. For
the medically vulnerable inmates at FCI Danbury, this failure bolsters my conclusion that
Petitioners have shown a likelihood of success on the merits on their claim that the Respondents
are displaying deliberate indifference in violation of the Eighth Amendment.
First, some history is in order. Before the First Step Act was enacted in 2018, only the
Director of the Bureau of Prisons could file a motion with the sentencing court seeking
“compassionate release” under Section 3582(c)(1)(A). “The BOP rarely did so . . . . From 1984
to 2013, an average of only 24 inmates were released each year through BOP-filed motions.”
25Respondents do not argue that the Warden’s hands were tied by BOP policy set by the BOP Director in setting the criteria for home confinement at FCI Danbury—an argument that would easily have been available in this case given that Petitioners have named both the Warden and the Director as Respondents. In any event, such an argument would not be dispositive, as a prison official does not comply with the Eighth Amendment when he or she knows of a serious risk to inmate safety but fails to address it due to mechanical reliance on prison policy. See Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (reasonable jury could find that “the defendants here acted with a sufficiently culpable state of mind in mechanically following [hepatitis C Guideline regarding substance abuse] and refusing to prescribe him [hepatitis C drug]”; “[t]he operative question in this case is not whether the Guideline's substance abuse policy is generally justifiable, but whether a jury could find that the application of the policy in plaintiff's case could have amounted to deliberate indifference to plaintiff's medical needs”; “there is no evidence suggesting that the defendants took any step whatsoever to investigate—let alone verify—whether it would be medically appropriate to ignore the unanimous advice of [plaintiff’s] treating physicians . . . and apply the Guideline’s substance abuse policy in [plaintiff’s] case.”).
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United States v. Rodriguez, 2020 WL 1627331, at *2 (E.D. Pa. April 1, 2020). According to a 2013 report of the Department of Justice’s Inspector General, these low numbers stemmed in part from poor management, a lack of clear standards, and inconsistent implementation of the compassionate release program. Id. “In an effort to improve and increase the use of the compassionate-release process, the First Step Act amended § 3852(c)(1)(A) to allow prisoners to directly petition courts for compassionate release, removing the BOP's exclusive ‘gatekeeper’ role.” Id. The current version of the statute allows defendants to bring motions for release themselves at the earlier of two occurrences: (1) the defendant’s “fully exhaust[ing] all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or [2] the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility.” 18 U.S.C. § 3582(c)(1)(A).
The First Step Act left the BOP an important role in the process, as the defendant must still exhaust his administrative remedies with the BOP before filing a motion in court.26 And given the statute’s specification of the timing for exhaustion—either the time needed for full exhaustion or the lapse of 30 days from receipt of the request by the warden, whichever is earlier—it appears that Congress assumed that sometimes the BOP would act on the request within 30 days of the Warden’s receipt of the request, and sometimes it would not. Further, one
26 There is a split among district courts within the Second Circuit as to whether the statute’s exhaustion requirement is mandatory, or whether it can be “waived” or excused by the district judge for reasons such as futility, irreparable harm, and similar equitable doctrines. Compare United States v. Roberts, 2020 WL 1700032, at *2 (S.D.N.Y. April 8, 2020) (“[T]he Court must abide by Congress’s choice, given Section 3582(c)’s clear command that the Court “may not” grant compassionate release except under the conditions Congress prescribed.”) with United States v. Colvin, 2020 WL 1613943, at *2 (D. Conn. April 2, 2020) (“[I]n light of the urgency of Defendant’s request, the likelihood that she cannot exhaust her administrative appeals during her remaining eleven days of imprisonment, and the potential for serious health consequences, the Court waives the exhaustion requirement of Section 3582(c)(1)(A).”). I have adopted the former position, finding that a defendant may not file a motion with the sentencing court until either he or she has exhausted the available administrative remedies or 30 days have lapsed from receipt of the request by the warden. United States v. Nathaniel Smith, 2020 WL 1903160 (D. Conn. April 17, 2020).
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might assume that, after the 2013 Inspector General’s report and Congress’s reaction to it, the BOP would have built a better system for processing compassionate release requests administratively. Finally, one might assume that the BOP would have modified its internal “compassionate release” guidance to take account of the serious risk of severe illness or death faced by medically vulnerable inmates housed in prisons with COVID-19 outbreaks. Unfortunately, the record in this case belies all of these assumptions. According to the Warden’s declaration, “since this emergency began” through May 4, 2020—a period that spans more than 6 weeks since the Warden placed the prison on “modified operations” on March 19, ECF No. 242 at 10—the Reduction in Sentence Coordinator at FCI Danbury has received 241 requests for compassionate release; of these, 136 have been processed and denied, 18 have been returned to the inmate seeking further information, 70 are being reviewed by staff, and 17 “are awaiting” the Warden’s review. ECF No. 24-2 at 27.
These figures are striking for two reasons. First, the figures make clear that the FCI Danbury staff has, to date, not granted a single request for compassionate release—a batting average that is dramatically less favorable to inmates than the frequency with which courts in this District are granting Section 3582 motions. ECF No. 24-2 at 52-54 (Government’s listing of rulings by District of Connecticut judges on COVID-based Section 3582(c)(1)(A) motions showing that approximately 25 out of 48 have been granted, some with the Government’s consent).27 This suggests that the Warden is setting an impossible high bar for these requests.28
27 Out of the 48, 7 involved inmates at Wyatt, which is a detention facility, albeit one that also houses sentenced prisoners immediately after sentencing. Only two of the Wyatt detainees were released, according to the Government’s spreadsheet. ECF 24-2 at 52-54. The Bail Reform Act, rather than Section 3582(c)(1)(A), governs release as to detainees. 28 Apparently, she is not the only one. Information Petitioners filed on the docket concerning the handling of Section 3582 requests at BOP Elkton—which is under a court injunction in light of a COVID-19 outbreak there, see Wilson v. Williams, 2020 WL 1940882 (N.D. Ohio April 22, 2020)—only confirms what appears to be the nearimpossible standard the BOP is applying to these requests. According to a filing by the Government in the Wilson
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Alternatively, it suggest that the Warden has not set a new standard for compassionate release in light of the pandemic, but is applying an obsolete one that takes no account of the risk of illness or death to medically vulnerable inmates from COVID-19: As discussed above, the BOP’s January 2019 policy statement makes no mention of COVID-19 or the risk posed by infectious diseases inside prisons in general, and restricts use of “compassionate release” authority to a few, extreme situations that have little to do with susceptibility to COVID-19. Respondents have not suggested they have made any attempt to adjust the January 2019 standards for compassionate release to account for new “extraordinary and compelling” circumstances presented by COVID19 in the prison setting.
Second, the figures suggest that the Warden is processing request for compassionate release based on COVID-19 at a pace that disregards the seriousness of the risk faced by medically vulnerable inmates. The figures show that over more than six weeks, FCI Danbury has not made even an initial response to some 44% of compassionate release requests, justifying the Petitioners’ assertion that the staff at the facility are “failing to timely respond to requests for emergency compassionate relief.” Petition ¶ 119. Further, an initial response from the Warden—when it arrives—is only the first step in a multi-tiered administrative remedy process the inmate must follow to “fully exhaust[]” administrative remedies. That process requires each inmate to appeal the denial by the Warden to a BOP Regional Director, followed by an appeal to the BOP General Counsel. 28 C.F.R. § 571.63; 28 C.F.R. § 542.15. For each level of appeal, the inmate must use a different form and mail it to a different reviewing official. Id. Even if the inmate’s request to the Warden is approved—something that has not happened at Danbury since
case, of 243 medically vulnerable inmates who have submitted a request for compassionate release to the warden at FCI Elkton, “[o]nly one inmate . . . met the criteria for compassionate release.” ECF No. 26-4 at 4.
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the outset of the pandemic—that approval must go through at least three more layers of review involving the BOP General Counsel, the Medical Director or an Assistant Director, and, finally, the Director. 28 C.F.R.§ 571.62. It does not appear that the BOP has updated these regulations since the First Step Act was passed, let alone made any attempt to suspend them or otherwise accelerate the process during the pandemic.
From all this it should be obvious that the BOP, from the Warden at FCI Danbury up through the Director, is not allowing—and, indeed, under its current regulations cannot allow—a defendant to “fully exhaust[] all administrative rights to appeal a failure of the Bureau of Prisons” to bring a motion for compassionate release before the expiration of the 30 days specified in the statute. 18 U.S.C. § 3582(c)(1)(A). So, as far as the record at FCI Danbury shows, it is practically impossible for a defendant to “fully exhaust” a compassionate release request within the BOP before expiration of the 30-day period, despite Congress’s apparent intent. Further, it is, at least during the COVID-19 crisis at FCI Danbury, impossible to find any success within the existing administrative remedy process; the applicable standards appear to make no allowance for the grave risks posed by COVID-19, even for members of the Medically Vulnerable Subclass, and the Warden indicates she has not approved for referral a single request. The 30-day period under the statute is simply dead time during which there is no prospect the BOP will come to the defendant’s aid.
All of these circumstances support the order I issue today, which requires the Warden to process Section 3582 requests more promptly and requires her to explain why, apparently, no consideration is being given in this process to the serious risk of illness or death posed to the medically vulnerable subclass.
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While these circumstances might also support broader relief against the Director, the Director is not a proper party in this case because he is not the immediate custodian of the Petitioners. Rumsfeld, 542 U.S. at 434-35 (“The federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is ‘the person who has custody over [the petitioner].’ 28 U.S.C. § 2242 . . . . The consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner’s habeas petition . . . . In accord with the statutory language . . . , longstanding practice confirms that in habeas challenges to present physical confinement—‘core challenges’—the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” (alteration in original)). Thus, unless the Petitioners can provide a reason not to do so within 7 days of this order, I will dismiss the 2241 Petition against the Director.
* * * To be clear, I am not suggesting that the Eighth Amendment requires the Warden to place on home confinement or recommend for compassionate release every inmate who has a COVID19 risk factor. In Farmer, the Supreme Court held that “a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 511 U.S. at 847 (emphasis added). Whether it is a “reasonable measure” to place an inmate on home confinement or grant compassionate release in a particular case will depend on the severity of the risk faced by the inmate from COVID-19 in light of his or her age and medical history, the danger the inmate presents to the residents of the home environment under consideration, and the danger to the public at large. The determination
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must be individualized, as the Petitioners acknowledged at oral argument, ECF No. 28 at 9, and, in some cases, such as where the inmate has a recent record of violence, may properly result in denying home confinement or compassionate release even to inmates whose age or medical histories place them at risk of serious injury or death from COVID-19. But difficult as this determination may be, Petitioners have made a preliminary showing that, in these circumstances, the Eighth Amendment requires that it be made promptly and that it focus on the critical issues of inmate and public safety. b. Irreparable Harm
“A showing of irreparable harm is the single most important prerequisite” for the issuance of a temporary restraining order. Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citations omitted). To satisfy the irreparable harm requirement, the Petitioners must demonstrate that, absent a temporary restraining order, “they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Id. (internal quotation marks and citations omitted).
A substantial risk of serious illness or death has often been found to constitute irreparable harm. See, e.g., Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 43-44 (2d Cir. 1997) (finding irreparable harm where the closure of a treatment program would pose serious risk of harm to plaintiffs, including “death, illness or disability”); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332-33 (2d Cir. 1995) (upholding District Court’s irreparable harm finding based on the “risk of injury, infection, and humiliation”).
More specifically, Courts across the country have concluded that the risk of contracting COVID-19 as a result of unsafe conditions of confinement constitutes irreparable harm. See,
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e.g., Wilson v. Williams, 2020 WL 1940882, at *9 (N.D. Ohio Apr. 22, 2020) (finding that the risk of exposure to COVID-19 at FCI Elkton—one of two other facilities that, like FCI Danbury, were specifically identified by Attorney General Barr’s April 3 memo as experiencing significant outbreaks—constituted irreparable harm); Mays v. Dart, 2020 WL 1812381, at *13 (N.D. Ill. Apr. 9, 2020) (The risk of “severe health consequences, including death, if they contract coronavirus disease” constituted “irreparable harm.”); Basank v. Decker, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”).
FCI Danbury is experiencing an active COVID-19 outbreak—one of the worst in the federal prison system. One inmate at the prison has already died as a result of contracting the virus, and it is undisputed that members of the vulnerable subclass face a serious risk of meeting the same fate should they contract the virus. In light of the impossibility of instituting effective social distancing in the setting of a prison, like FCI Danbury, where inmates live and sleep in large dormitories lined with bunk beds, the grave risk to Petitioners persists despite the measures prison officials have taken to combat the virus.
In addition to the imminent prospect of serious physical harm, medically vulnerable inmates have alleged a violation of an important constitutional right—the right to be free from cruel and unusual punishment. “In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm.” Basank v. Decker, 2020 WL 1481503, at *4 (citing cases); Connecticut Dep’t of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citations omitted)); Jolly v. Coughlin, 76 F.3d
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468, 482 (2d Cir. 1996) (“[T]he alleged violation of a constitutional right . . . triggers a finding of irreparable harm.” (emphasis original)). Thus, the alleged violation of subclass members’ constitutional right to be free from cruel and unusual punishment itself constitutes “irreparable harm.”
In short, Subclass Members easily satisfy the irreparable harm prerequisite for issuing a temporary restraining order. c. Balance of the Equities and the Public Interest
“Where the Government is the opposing party, the final two factors in the temporary restraining order analysis—the balance of the equities and the public interest—merge.” Coronel v. Decker, 2020 WL 1487274, at *7 (S.D.N.Y. Mar. 27, 2020) (citing Planned Parenthood of New York City, Inc. v. U.S. Dep’t of Health & Human Servs., 337 F. Supp. 3d 308, 343 (S.D.N.Y. 2018)).
As an initial matter, “the public interest is best served by ensuring the constitutional rights of persons within the United States are upheld.” Coronel, 2020 WL 1487274, at *7 (quoting Sajous v. Decker, 2018 WL 2357266, at *13 (S.D.N.Y. 2018)); see also Doe v. University of Connecticut, 2020 WL 406356, at *6 (D. Conn. Jan. 23, 2020) (noting the “public interest in avoiding violations of constitutional rights”); Barbecho v. Decker, 2020 WL 1876328, at *7 (S.D.N.Y. Apr. 15, 2020); G & V Lounge, Inc. v. Michigan Liquor Control Com’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.”).
Moreover, the Petitioners’ interest in avoiding serious illness or death must weigh heavily on the scales. While I am not unmindful of the unprecedented challenges faced by the Warden in combatting the COVID-19 pandemic, not to mention the challenges of operating a prison—
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including maintaining order and discipline, maintaining health and safety, and achieving the prison’s penological and rehabilitative objectives—under even the best of circumstances, and while I approach imposing additional duties on her at this time with great hesitation, the burdens faced by the Warden must yield to medically vulnerable inmates’ interest in avoiding serious illness or death, as well as the public’s interest in seeing those inmates’ constitutional rights vindicated.
Respondents argue that an assessment of the public interest also requires individualized consideration of an inmate’s suitability for release, taking into account the safety of the inmate, his or her family, and the public. I agree, and the order I issue today mandates such individualized consideration, albeit on a basis more accelerated and more focused on the critical factors of inmate and public safety than the current home confinement review process at FCI Danbury. 3. Safety Measures
With respect to the broader putative class, the Petitioners argue that the Warden has failed to institute the measures necessary to prevent the continued spread of COVID-19 at FCI Danbury and to protect inmates from infection. Aside from the Warden’s use of home confinement and compassionate release to protect medically vulnerable patients and reduce the population at FCI Danbury, which is addressed above, the Petitioners argue that the Warden has further failed to (1) adequately screen inmates for COVID-19 symptoms, (2) test symptomatic inmates, (3) isolate infected patients, (4) quarantine patients thought to have been exposed, (5) implement adequate social distancing, (6) observe proper sanitation measures, (7) provide staff and inmates with adequate personal protective equipment, soap, and sanitizers, and (8) provide adequate medical care to inmates with COVID-19 as well as other medical conditions. But while
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the salient facts regarding the Warden’s use of her home confinement and compassionate release authority are generally undisputed, factual disputes abound with respect to the Petitioners’ other allegations. For example, while Petitioners contend that prison officials “willfully refused to take temperatures or test for fever in order to avoid identifying cases of possible COVID infection,” ECF No. 1 ¶ 132, the Warden claims that “[t]his could not be further from the truth,” and that, since April 9, 2020, FCI Danbury has conducted daily temperature checks for all inmates. ECF No. 24-2 at 24. Similarly, while Petitioners contend that symptomatic patients are not being tested appropriately, the Warden maintains that “[a]ny inmate at FCI Danbury presenting with symptoms consistent with COVID-19 is immediately evaluated by a medical provider to determine whether testing and/or isolation is appropriate.” ECF No. 24-2 at 2. And while Petitioners claim that the use of personal protective equipment such as masks has been inconsistent and is not enforced, the Warden indicates that both staff and inmates are required to wear face masks and are provided with personal protective equipment as appropriate. Id. at 15.
These factual disputes preclude me from concluding at this stage that the Warden’s implementation of measures to protect against the spread of COVID-19 exhibits deliberate indifference to the serious risks posed by the virus, and thus that the Petitioners are likely to succeed on the merits of this portion of their claim. It is well established that “[t]he existence of factual disputes necessitates an evidentiary hearing . . . before a motion for preliminary injunction may be decided.” Kern v. Clark, 331 F.3d 9, 12 (2d Cir. 2003) (internal quotation marks and citations omitted). Perhaps recognizing the conflicting factual record on mitigation and safety measures, the Petitioners submitted a proposed order following oral argument, ECF No. 26-1, that does not include an order directing the Warden to implement the various measures at issue (again, most of which the Warden contends she is already implementing). I thus deny
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the Petitioner’s request for a temporary restraining order to the extent that it asks the Court to direct the Warden to implement safety measures and report to the Court on the status of those measures. C. The Propriety of Multi-Party Treatment
Although the Second Circuit has “conclude[d] that the class action device should not be imported into collateral actions, at least in its full vigor as contemplated by Rule 23,” it has recognized “the power of the judiciary . . . to fashion for habeas actions appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.” U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974). In Preiser, the court allowed “a multiparty proceeding similar to the class action” on behalf of young adults serving misdemeanor sentences, largely because the petitioners’ claims were “applicable on behalf of the entire class” and “uncluttered by subsidiary issues.” Id. at 1126. The Court noted several other “persuasive justifications” for affording class action treatment, including that “many of those serving reformatory sentences are likely to be illiterate or poorly educated,” “most would not have the benefit of counsel to prepare habeas corpus petitions,” and “considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue is thereby avoided.” Id. Noting that “the precise provisions of Rule 23 are not applicable to these proceedings,” the Court nonetheless found that consideration of the four Rule 23(a) prerequisites further bolstered its conclusion that class treatment was appropriate. Id. The approach laid out by the Preiser court is, in short, both flexible and sensitive to the particular circumstances of a given case.
In any event, I need not make a formal determination as to class certification—or, more precisely, as to whether a multi-party proceeding analogous to a class action is appropriate. “It is
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well established that ‘[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class’ and that the ‘court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers.’” Strouchler v. Shah, 891 F. Supp. 2d 504, 517 (S.D.N.Y. 2012) (quoting Alba Conte & Herbert Newberg, Newberg on Class Actions § 9:45 (4th Ed.2002)). Thus, in Strouchler, the court “[p]reliminarily examin[ed] plaintiffs’ entitlement to class status,” concluded that “it is likely that plaintiffs will be able to meet the Rule 23 prerequisites of numerosity, commonality, typicality, and adequacy” as well as the requirements of Rule 23(b)(2), and granted in part plaintiffs’ motion for preliminary injunction. Id. at 518-19; see also LaForest v. Former Clean Air Holding Co., Inc., 376 F.3d 48, 58 (2d Cir. 2004) (finding that the District Court did not abuse its discretion in issuing a preliminary injunction prior to class certification and in reliance on representative evidence of irreparable harm). By analogy to this established practice in the class action context, I need only determine at this stage whether multiparty treatment is likely to be appropriate.
Moreover, the scope of my inquiry as to multi-party treatment need not extend beyond the scope of the claim addressed by this ruling and the temporary restraining order I issue. I have concluded above that the Petitioners, as medically vulnerable inmates, have shown that they are likely to succeed on the merits of their claim that the Warden’s implementation of her home confinement and compassionate release authority violates their constitutional rights. I have further found that they face irreparable harm should preliminary relief not be granted, and that issuing a temporary restraining order is in the public interest. The injunction I issue below directs the Warden to make prompt, meaningful use of her home confinement and compassionate release authority; expeditiously to consider all medically vulnerable inmates for home
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confinement and compassionate release; and to discontinue the use of unduly burdensome eligibility criteria that are divorced from the interests of vulnerable inmates as well as the public and that preclude otherwise eligible inmates from consideration. At this stage, I need only consider, on a provisional basis, whether multi-party treatment is likely appropriate as to this claim and the associated relief.29
I find that, as in Preiser, the claim as to which I now grant preliminary relief—that the Warden’s implementation of her home confinement and compassionate release authority violates the constitutional rights of medically vulnerable inmates—is plainly “applicable on behalf of the entire [subclass]” and “uncluttered by subsidiary issues.” Id. It is the Warden’s existing process as applied to medically vulnerable inmates that amounts to deliberate indifference—a process that applies to the entire subclass, as evidenced, for example, by the single set of home confinement criteria published by the Warden. See ECF Nos. 15-7, 15-8. I do not rule on the propriety of the Warden’s determination as to any particular inmate; thus, the fact that these determinations will likely require at least some degree of individualized inquiry does not destroy the common questions inherent in the claims under consideration.
Other considerations also counsel in favor of a multi-party proceeding at this stage. As in Preiser, the majority of the vulnerable inmates would be unlikely to have the benefit of counsel in pursuing individual habeas petitions absent a multi-party proceeding. Similarly, multi-party treatment avoids the “considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue,” Preiser, 506 F.2d at 1126.
29 Should I later find that other claims, issues, or forms of relief the Petitioners are pursuing are inappropriate for multi-party, representative treatment, I see no reason why, for example, I could not employ an analogue to issue certification under Rule 23(c)(4). Thus, I need not determine whether all claims, issues, and forms of relief in this case are appropriate for multi-party treatment in this ruling.
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Furthermore, because the present ruling addresses the constitutionality of the processes employed by the Warden—processes that, in the interest of fairness, efficiency, and accuracy, must be uniform—individual adjudication, and the conflicting directives it would likely generate, would unduly burden the Warden and interfere with the fair and efficient operation of the home confinement and compassionate release programs, thus undermining the very constitutional interests Petitioners seek to vindicate.
Consideration of the Rule 23(a) prerequisites further bolsters my conclusion that multiparty treatment is likely appropriate. According to the Government, there are 984 inmates at FCI Danbury. ECF No. 2401 at 14. At FCI Elkton, a facility with 2,368 inmates,30 Petitioners indicate that the BOP identified 837 medically vulnerable prisoners. ECF No. 26 at 3. If a similar proportion of inmates at FCI Danbury are medically vulnerable, that would mean the putative Medically Vulnerable Subclass consists of roughly 350 inmates. This would easily satisfy Rule 23’s numerosity requirement.31 I also find that, even applying the “more stringent standards” alluded to by the Preiser court, 506 F.2d at 1127, commonality is likewise satisfied. Facts regarding the process employed by the Warden in considering inmates for home confinement and compassionate release are common to the entire putative subclass, as are the legal questions regarding whether the Warden’s handling of those processes in these circumstances is constitutional. And while members of the putative class may vary in terms of the severity of their COVID-19 risk factors, all are recognized as falling in the high-risk group as to which heightened precautions are justified.32 Typicality is similarly satisfied; because the
30 FCI Elkton, BOP.gov, https://www.bop.gov/locations/institutions/elk (last visited May 10, 2020). 31 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995) (holding that “numerosity is presumed at a level of 40 members”) and Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993) (courts do not require “evidence of exact class size or identity of class members to satisfy the numerosity requirement”). 32 Petitioners and Respondents jointly propose that the Medically Vulnerable Subclass be defined as follows:
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process at issue is applicable to all inmates, “each member’s claim arises from the same course of events,”—the establishment and operation of this process—"and each class member makes similar legal arguments to prove the defendant’s liability.” In re Flag Telecom Holdings, Ltd. Securities Litigation, 574 F.3d 29, 35 (2d Cir. 2009) (internal quotation marks and citations omitted); see also Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993) (“Evidence indicating the employer discriminated in the same general fashion against the class representatives and against other members of the class was held sufficient to satisfy the typicality requirement.” (citing Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 596-98 (2d Cir. 1986))). Finally, Petitioners are represented by experienced and qualified counsel, and there is no reason to think that the named petitioners are inadequate representatives of the class, thus satisfying the adequacy requirement.
In short, I conclude that the Petitioners are likely to show that proceeding on a multiparty basis with respect to the claim at issue is appropriate, and thus that injunctive relief as to the medically vulnerable subclass is appropriate at this stage. D. The Government’s Rule 12(b)(6) Motion
In deciding a motion to dismiss under Rule 12(b)(6), the Court must determine whether the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.” Bell
All individuals in custody at FCI Danbury, while the threat of COVID-19 at the facility remains, who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension. ECF No. 26 at 2.
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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). In considering such a motion, the court must construe the complaint liberally, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss, “[a]fter the court strips away conclusory allegations, there must remain sufficient well-pleaded factual allegations to nudge plaintiff’s claims across the line from conceivable to plausible.” In re Fosamax Products Liab. Litig., 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010). “When a complaint is based solely on wholly conclusory allegations and provides no factual support for such claims, it is appropriate to grant defendants[’] motion to dismiss.” Scott v. Town of Monroe, 306 F. Supp. 2d 191, 198 (D. Conn. 2004).
With respect to the Petitioners’ claim that the Warden’s failure to make prompt, meaningful use of her home confinement and compassionate release authority constitutes deliberate indifference under the Eighth Amendment, I have found that the Petitioners’ claim is not only plausible, but is likely to succeed on the merits.
The Petitioners have also plausibly alleged that the Warden has failed to implement adequate measures to prevent the continued spread of COVID-19 at the prison, in violation of the Petitioners’ Eighth Amendment rights. The Petitioners have plausibly alleged that they face a grave risk of serious illness or death due to COVID-19, see, e.g., Petition ¶¶ 25-34 (listing Petitioners’ medical conditions rendering them particularly vulnerable to COVID-19), ¶¶ 56-76 (describing why prisons are particularly susceptible to outbreaks of COVID-19), and thus that
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they are “incarcerated under conditions posing a substantial risk of serious harm,” Farmer, 511 U.S. at 834, satisfying the objective component of the deliberate indifference analysis. The prisoners have further plausibly alleged that prison officials “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety,” Brock, 315 F.3d at 164. Petitioners have alleged, for example, that instead of screening inmates for COVID-19 in good faith, so that symptomatic patients can be tested and, if necessary, isolated, prison officials have “falsely discounted the readings of elevated temperatures in order to avoid taking appropriate follow-up action.” Petition ¶ 132. While the Warden contests this account, I must accept the Petitioners allegations as true for the purposes of this motion. Similarly, Petitioners allege that on April 24, a woman at the satellite prison exhibiting serious symptoms was ignored by correctional staff and left among the general population for hours, despite the urgings of the other prisoners, before finally being taken to the hospital where she tested positive for COVID-19. Petition ¶ 54. The Petitioners further allege that prison officials threatened retaliation against any inmate who told anyone on the outside about this incident. Id. These and other allegations—which I must accept as true for the purposes of this motion—satisfy the subjective component of the deliberate indifference standard.
For the above reasons, the Government’s Rule 12(b)(6) motion to dismiss is DENIED. V. RELIEF
For the reasons discussed above, I grant in part and deny in part Petitioners’ motion for temporary restraining order and issue the orders set forth below. The temporary restraining order that follows is aimed at accelerating the process for evaluating inmates for home confinement and compassionate release, and focusing that process on achieving a “reasonable” balance between the risks to inmate safety and the risks to public safety. See Farmer, 511 U.S. at 847.
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TEMPORARY RESTRAINING ORDER 1. Within 3 days of this order, Respondent Warden (the “Respondent”) shall file on the
docket, under seal, a list of “medically vulnerable inmates at Danbury FCI,” consisting, more specifically, of the following: All individuals in custody at FCI Danbury who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or (g) serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.
a. Within 1 day of this order, counsel for petitioners and respondents shall confer with each other (to the extent they have not already done so) about how to identify promptly the inmates who fit the criteria listed above, including, if feasible, through the use of ICD codes, as discussed during the recent teleconference;
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b. The list referred to in paragraph 1 shall include the identity of the inmate, the inmate’s sentencing court, and the case number of the inmate’s underlying criminal conviction but shall not include information about the specific medical condition suffered by each inmate;
c. The list referred to in paragraph 1 shall be organized by facility within Danbury FCI (i.e., one list for the men’s facility, one list for the women’s satellite prison, and one list for the women’s camp)
d. The list shall indicate, as to each inmate, whether that inmate (a) has submitted a request for compassionate release under 18 U.S.C. § 3582(c)(1)(A), and (b) has been reviewed for home confinement since March 26, 2020, and if so, whether the inmate has been designated for home confinement.
e. If compiling the information described in paragraph 1d. will significantly delay the creation and filing of a list setting forth just the information described in paragraphs 1, 1b., and 1c., then the Respondents may initially, within 3 days of this order, file a list including only the information set forth in paragraphs 1, 1b., and 1c., and then, within 7 days of this order, file a second version of the list including all of the information described in paragraphs 1 and 1b.-1d.
f. Respondent shall provide the list to Petitioners’ counsel, and the list shall be marked “Confidential-Attorneys’ Eyes Only” and be treated accordingly under the Protective Order entered in this case, ECF No. 9.
g. Respondent shall file on the docket with the list a declaration setting forth the process used to identify those persons described in paragraph 1, including a description of the databases searched.
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2. Within 3 days of this order, Respondent shall: a. Finalize and implement a process that makes full and speedy use of the home confinement authority under 18 U.S.C. § 3624(b) and the CARES Act and, as directed by the Attorney General’s April 3, 2020 Memorandum, “immediately maximize[s] appropriate transfers to home confinement [for] all appropriate inmates held at . . . FCI Danbury,” in particular, by (a) prioritizing for review for home confinement all inmates identified on the list described in paragraph 1, (b) assigning substantial weight in that review to the inmate’s risk factors for COVID-19 based on CDC guidance, (c) eliminating all requirements that the inmate have served some portion of his or her sentence to be eligible for placement on home confinement, (d) eliminating the requirement that a “primary or prior offense” not be a violent offense; (e) eliminating the requirement that the inmate be “without incident reports in the past 12 months (regardless of severity level)”; (f) modifying any requirement that a person approved for home confinement be quarantined at the facility for 14 days to allow for immediate release to home confinement for those inmates as to whom Respondent verifies, after reasonable inquiry, that the inmate is not showing symptoms and is able to self-isolate for the same period in the home confinement setting.33
33 By “eliminating” particular “requirements,” I do not mean to suggest that these considerations are irrelevant to the Warden’s assessment of the appropriateness of home confinement for a particular inmate. To the contrary, a particular inmate’s violent history, for example, is obviously relevant to the assessment of the danger his or her release might pose to the public and thus should be accorded weight in the determination. The purpose of eliminating these and other categorical exclusions is to make the process more individualized and more amenable to a proper and reasonable balancing of inmate safety and public safety.
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b. File a statement on the docket explaining why the Court should not also require the review process described in paragraph 2a. to eliminate or modify the requirements that the PATTERN risk score be “MIN” and that the Mental Health Care Level be less than IV, ECF No. 15-8 at 2.
c. Publish to inmates the factors to be considered in the revised home confinement review process developed by the Warden in accordance with this order.
3. Within 7 days of this order, Respondent shall: a. Provide written notice of either (a) a referral of the matter in writing with recommendation of approval of the request, 28 C.F.R. § 571.62, or (b) a denial of the request, together with the appropriate appeal form, 28 C.F.R. §§ 571.63, 542.15, to each inmate described in paragraph 1 (or, if that is not administratively feasible, to each inmate) who has made a written request for compassionate release based on COVID-19 under 18 U.S.C. § 3582(c)(1)(A) but has not yet received a decision. b. Finalize and implement a process whereby each inmate described in paragraph 1 (or, if that is not administratively feasible, each inmate) who makes a written request for compassionate release based on COVID-19 receives notice of either the referral of their request, with a recommendation of approval, or its denial, with the appropriate appeal form, within 7 days of the date the request is received by a member of the Danbury FCI staff. c. File a statement on the docket explaining whether and how the criteria in the BOP’s Program Statement governing compassionate release have been updated to take account of the COVID-19 crisis and, if they have not been, showing cause
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why the Court should not require the Warden to promulgate revised compassionate release criteria for use at FCI Danbury that take full and appropriate account of the threat posed by COVID-19 to medically vulnerable inmates. 4. Within 13 days of this order, as to each person described in paragraph 1, the Respondent Warden shall complete the home confinement review process described in paragraph 2a. and shall either (a) approve such person for home confinement and (i) place him or her on home confinement or (ii) place him or her in quarantine within the facility for 14 days before placing him or her on home confinement, or (b) deny such person home confinement. 5. Within 13 days of this order, the Respondent Warden shall provide to the Court (under seal) an individualized explanation for each denial of home confinement as to an inmate described in paragraph 1, including at least a brief description of the factual basis for any factors deemed to outweigh the danger to the inmate from COVID-19, and shall show cause why each such inmate should not be transferred to another facility within the BOP where adequate social distancing is possible. 6. Within 13 days of this order, Respondent shall file a status report describing her efforts to comply with this order. 7. On May 26, 2020, at 1:00 p.m., the parties shall participate in a telephonic status conference with the Court to determine whether this order should be extended. See Fed. R. Civ. P. 65(b)(2).
73

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HEARING ON MOTION FOR PRELIMINARY INJUNCTION The Court will hold a hearing on the motion for preliminary injunction on June 11, 2020 at 9:00 a.m. Before the hearing, the parties shall participate in expedited discovery. The parties shall meet and confer within one day of this order to discuss the scope and timing of that discovery. By May 14, 2020 at noon, they shall file a joint proposal regarding that scope and timing, and shall indicate any disagreements. The Court will hold a telephonic status conference to discuss the proposal on May 14, 2020 at 3:00 p.m.

IT IS SO ORDERED.

Dated:

Hartford, Connecticut May 12, 2020

/s/ Michael P. Shea, U.S.D.J.

74

 
 Case 3:20-cv-00569-MPS Document 24 Filed 05/05/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER,

:

JACKIE MADORE; and

:

KENNETH CASSIDY, Individually,

:

and on Behalf of All Others Similarly Situated, :

Petitioners,

:

:

v.

:

:

:

D. EASTER, Warden of Federal Correctional :

Institution at Danbury, and MICHAEL

:

CARVAJAL, Director of the Federal Bureau :

of Prisons, in Their Official Capacities,

:

Respondents.

:

C.A. No.: 3:20cv569 (MPS) May 5, 2020

RESPONDENTS’ MOTION TO DISMISS PETITIONERS’ PETITION FOR WRIT OF HABEAS CORPUS AND MOTION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION Respondents D. Easter, Warden of Federal Correction Institute at Danbury, and Michael Carvajal, Director of the Federal Bureau of Prisons, in their official capacities, (“Respondents”) hereby move to dismiss Petitioners’ Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Docket No. 1) and Motion for a Temporary Restraining Order and/or Preliminary Injunction (Docket Nos. 13 and 14) pursuant to Federal Rules of Civil Procedure Rules 12(b)(1) and 12(b)(6); or, in the alternative, for summary judgment pursuant to Federal Rules of Civil Procedure Rule 56. In support of this motion, Respondents submit the attached Memorandum of Law and Exhibits.

Case 3:20-cv-00569-MPS Document 24 Filed 05/05/20 Page 2 of 2
Respectfully Submitted
Respondents By Their Attorneys
John H. Durham United States Attorney
/s/ John B. Hughes, ct05289 Michelle L. McConaghy, ct27157 David C. Nelson, ct25640 Nathaniel M. Putnam, phv10463 Jillian R. Orticelli, ct28591 Assistant U.S. Attorneys 203-821-3700 john.hughes@usdoj.gov Michelle.mcconaghy@usdoj.gov David.C.Nelson@usdoj.gov nathaniel.putnam@usdoj.gov jillian.orticelli@usdoj.gov

CERTIFICATE OF SERVICE I hereby certify that on May 5, 2020, a copy of foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.

/s/

_

Michelle L. McConaghy, ct27157

Assistant United States Attorney

2

Case 3:20-cv-00569-MPS Document 24-1 Filed 05/05/20 Page 1 of 88

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER,

:

JACKIE MADORE; and

:

KENNETH CASSIDY, Individually,

:

and on Behalf of All Others Similarly Situated, :

Petitioners,

:

:

v.

:

:

:

D. EASTER, Warden of Federal Correctional :

Institution at Danbury, and MICHAEL

:

CARVAJAL, Director of the Federal Bureau :

of Prisons, in Their Official Capacities,

:

Respondents.

:

C.A. No.: 3:20cv569 (MPS) May 5, 2020

MEMORANDUM OF LAW IN SUPPORT OF RESPONDENTS’ MOTION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS AND
OPPOSITION TO PETITIONERS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

John B. Hughes Michelle L. McConaghy David C. Nelson Jillian R. Orticelli Nathaniel M. Putnam Assistant United States Attorneys

JOHN H. DURHAM United States Attorney Counsel for Respondents 157 Church Street, 25th Floor New Haven, CT 06510

Case 3:20-cv-00569-MPS Document 24-1 Filed 05/05/20 Page 2 of 88
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii I. PRELIMINARY STATEMENT ........................................................................................ 1 II. FACTUAL BACKGROUND ............................................................................................. 3
A. The Covid-19 Pandemic and the BOP’s Response................................................. 3 B. Steps Being Taken at FCI Danbury to Prevent COVID-19 .................................... 7
1. Isolation and Quarantine procedures ................................................................. 7 2. Hygiene and Safety Practices at FCI Danbury ................................................ 11 3. The Availability of Soap and Other Personal Hygiene Products..................... 13 4. Status of Personal Protective Equipment ......................................................... 14 5. Staffing............................................................................................................. 15 6. Testing.............................................................................................................. 17 7. Medical Services at FCI Danbury.................................................................... 18 III. COMPASSIONATE RELEASE AND HOME CONFINEMENT .................................. 20 A. Compassionate Release......................................................................................... 20 B. Home Confinement ............................................................................................... 21 IV. THE PETITION AND ALLEGED FACTS ..................................................................... 26 A. Petitioner Kenneth Cassidy................................................................................... 26 B. Petitioner Dianthe Martinez-Brooks ..................................................................... 27 C. Petitioner Rejeanne Collier ................................................................................... 28 D. Petitioner Jackie Madore....................................................................................... 29 E. Petitioners’ Requested Relief................................................................................ 29 V. STANDARDS OF REVIEW ............................................................................................ 30 A. Federal Rules of Civil Procedure Rule 12(b)(1) ................................................... 30
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B. Federal Rules of Civil Procedure Rule 12(b)(6) ................................................... 31 VI. ARGUMENT .................................................................................................................... 31
A. The Court Lacks Subject Matter Jurisdiction to Hear Petitioners’ Claims as Petitioners have Failed to Exhaust Administrative Remedies ............. 31
B. This Court Lacks Authority to Divest the BOP and Sentencing Courts of Their Jurisdiction to Place Inmates in Home Confinement or The Sentencing Judge’s Authority to Amend a Term of Imprisonment ...................... 32 1. Res Judicata Bars Petitioners’ Immediate Release.......................................... 43 2. Section 3626 Precludes the Remedy Requested By Petitioners ...................... 44
C. Petitioners Have Failed to Exhaust Administrative Remedies for All Remaining Remedies Sought in Their Petition..................................................... 47
D. This Court Lacks Jurisdiction to Appoint a Special Master to Essentially Sit as an Article III Judge ................................................................... 54
VII. EVEN IF THE COURT HAD JURISDICTION, PETITIONERS’ CLAIMS ARE SUBJECT TO DISMISSAL .................................................................................... 57 A. Applicable “Deliberate Indifference” Standard .................................................... 57 B. Petitioners are not Subject to an Unreasonable Risk of Harm at FCI Danbury................................................................................................................. 60 C. BOP has not Shown Deliberate Indifference and has Taken Appropriate Measures to Protect the Health of Inmates at FCI Danbury and the Public .................................................................................................................... 63
VIII. THE PETITIONERS’ CONCLUSORY PUTATIVE CLASS ACTION ALLEGATIONS MUST BE STRICKEN ........................................................................ 68
IX. CONCLUSION................................................................................................................. 74
ii

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TABLE OF AUTHORITIES Cases Acosta v. U.S. Marshals Serv., 445 F.3d 509 (1st Cir. 2006) ....................................................... 49 Ancona v. Lantz, No. 3:05-CV-363 (MRK), 2005 WL 839655 (D. Conn. Apr. 8, 2005) ............ 42 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)............................................................................ 31 Barber v. Perdue, No. 9:11–CV–0127 (NAM/DEP), 2012 WL 5996342 (N.D.N.Y. Nov. 9,
2012) ......................................................................................................................................... 48 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... 31 Bell v. Wolfish, 441 U.S. 520 (1979) ............................................................................................ 57 Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) .............................................................. 45, 54 Board of Governors of the Fed. Reserve System v. Pharaon, 140 F.R.D. 642 (S.D.N.Y. 1991) . 55 Brady v. Warden et al., No. 3:20-CV-510 (MPS) (D. Conn. Apr. 20, 2020) ............................... 38 Bragdon v. Abbot, 524 U.S. 624 (1998) ....................................................................................... 66 Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150 (2d Cir. 2017) ....................................... 43 Brown v. Felsen, 442 U.S. 127 (1979).......................................................................................... 43 Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010)........................................................................ 72 Brown v. Plata, 563 U.S. 493 (2011)...................................................................................... 45, 46 Cameron v. Tomes, 990 F.2d 14 (1st Cir. 1993)........................................................................... 64 Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999) ....................................... 73 Carmona v. U.S. Bureau of Prisons, 243 F.3d 629 (2d Cir. 2001)......................................... 31, 48 Celotex v. Catrett, 477 U.S. 317 (1986) ....................................................................................... 31 Charette v. Town of Oyster Bay, 159 F.3d 749 (2d Cir. 1998) ....................................................... 1 Charles v. Orange County, 925 F.3d 73 (2d Cir. 2019) ......................................................... 63, 67 Concord Assocs., L.P. v. Entm’t Props. Tr., 817 F.3d 46 (2d Cir. 2016) ..................................... 31 Cook v. Hanberry, 596 F.2d 658 (5th Cir. 1979).......................................................................... 34 Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556 (1st Cir. 1988) ........................................ 59
iii

Case 3:20-cv-00569-MPS Document 24-1 Filed 05/05/20 Page 5 of 88
Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.à.r.l, 790 F.3d 411 (2d Cir. 2015) .......... 30 Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979)............................................................................ 34 Dawson v. Asher, No. C20-0409 (JRL-MAT), 2020 WL 1304557 (W.D. Wa. Mar. 19, 2020) .. 64 Dillon v. United States, 560 U.S. 817 (2010) ............................................................................... 32 Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78 (2d Cir. 2013) ............................................... 30 Estelle v. Gamble, 429 U.S. 97 (1976) ............................................................................. 60, 61, 66 Farmer v. Brennan, 511 U.S. 825 (1994) .............................................................................. passim Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394 (1981) ....................................................... 42 Ferranti v. Moran, 618 F.2d 888 (1st Cir. 1980).......................................................................... 66 Freeman v. Sikorsky Aircraft Corp., 151 F. App’x. 91 (2d Cir. 2005)......................................... 42 Gilmore v. California, 220 F.3d 987 (9th Cir. 2000).............................................................. 44, 45 Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005)................................................................. 34 Gomez v. United States, 899 F.2d 1124 (11th Cir. 1990) ............................................................. 34 Gonzalez v. Perrill, 919 F.2d 1 (2d Cir. 1990) ............................................................................. 51 Grant v. Terrell, No. 10-CV-2769 (MKB), 2014 WL 2440486 (E.D.N.Y. May 29, 2014)......... 33 Harvin v. Chapdelaine, No. 3:16-CV-1616 (VAB), 2016 WL 7197363 (D. Conn. Dec. 9,
2016) ......................................................................................................................................... 50 Hathaway v. Coughlin, 99 F.3d 550 (2d Cir. 1996) ............................................................... 58, 59 Helling v. McKinney, 509 U.S. 25 (1993)............................................................................... 60, 63 Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) ................................................................ 66 Hill v. Curcione, 657 F.3d 116 (2d Cir. 2011).............................................................................. 65 Hines v. Youssef, No. 1:13-CV-00357 (AWI-JL), 2015 WL 164215 (E.D. Cal. Jan. 13, 2015).. 62 Holleman v. Zatecky, 951 F.3d 873 (7th Cir. 2020) ..................................................................... 55 Idan Comput., Ltd. v. Intelepix, LLC, No. CV-09-4849 (SJF)(ARL), 2010 WL 3516167
(E.D.N.Y. Aug. 27, 2010)......................................................................................................... 55 In re Bituminous Coal Operators’ Ass’n, 949 F.2d 1165 (D.C. Cir. 1991).................................. 55
iv

Case 3:20-cv-00569-MPS Document 24-1 Filed 05/05/20 Page 6 of 88
In re Vitamin C Antitrust Litig., 279 F.R.D. 90 (E.D.N.Y. 2012) ................................................ 70 Ingraham v. Wright, 430 U.S. 651 (1977) .................................................................................... 57 Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir. 1988).................................................... 45 Inmates of Suffolk County Jail v. Rouse, 129 F.3d 645 (1st Cir. 1997) ........................................ 44 Jacobson v. Comm. of Massachusetts, 197 U.S. 11 (1905) .......................................................... 66 John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443 (5th Cir. 2007) ............................................ 70 Johnson v. Connecticut Dept. of Admin. Serv., No. 3:11-CV-1106 (VLB), 2012 WL 414996
(D. Conn. Feb. 9, 2012) ............................................................................................................ 74 Jones v. Bock, 549 U.S. 199, 211 (2007) ...................................................................................... 51 Jones v. Smith, 720 F.3d 142, 145 n.3 (2d Cir. 2013)....................................................... 41, 47, 74 Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) ............................................................... 59, 65, 66 Lia v. Saporito, 909 F. Supp. 2d 149 (E.D.N.Y. 2012) ................................................................ 31 Livas v. Myers, No. 20-CV-422 (TAD)(KK), 2020 WL 1939583 (W.D. La. Apr. 22, 2020)
...................................................................................................................................... 36, 37, 54 Macias v. Zenk, 495 F.3d 37 (2d. Cir. 2007) ................................................................................ 49 Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001) ............................................................... 39, 40, 41, 42 Marlowe v. LeBlanc, - Fed. Appx. -, 2020 WL 2043425 (5th Cir. Apr. 27, 2020) ...................... 37 Mays v. Dart, - F. Supp. 3d -, 2010 WL 1812381 (N.D. Ill. Apr. 9, 2020 ............................. 62, 74 Medina-Rivera v. Terrell, No. 11-CV-0734 (BMC), 2011 WL 3163199 (E.D.N.Y. July 26,
2011) ......................................................................................................................................... 33 Mell v. United States, No. 3:20-CV-2277 (BRM), 2020 WL 1852384 (D.N.J. Apr. 13, 2020)... 60 Money v. Pritzker, Nos. 20-CV-2093 & 20-CV-2094, 2020 WL 1820660 (N.D. Ill. Apr. 10,
2020) ........................................................................................................... 46, 64, 71, 72, 74, 75 Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir. 1996) ............................................ 51 Muhammad v. City of New York Dept. of Corrections, 126 F.3d 119 (2d Cir. 1997) ............ 4, 5, 6 Neal v. Goord, 267 F.3d 116 (2d Cir. 2001 .................................................................................. 50 Nellson v. Barnhart, 2020 WL 1890670 (D. Colo. Apr. 16, 2020) ........................................ 37, 50
v

Case 3:20-cv-00569-MPS Document 24-1 Filed 05/05/20 Page 7 of 88
Nelson v. Campbell, 541 U.S. 637 (2004) .............................................................................. 23, 25 Ostrer v. United States, 584 F.2d 594 (2d Cir. 1978)............................................................. 39, 40 Pagan v. Abbott Labs., 287 F.R.D. 139 (E.D.N.Y. 2012) ............................................................ 72 Perkins v. Kan. Dep’t of Corr., 165 F.3d 803 (10th Cir. 1999).............................................. 65, 66 Porter v. Nussle, 534 U.S. 516 (2002) .................................................................................... 50, 51 Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002) ................................................................... 49 Procunier v. Martinez, 416 U.S. 396 (1974) ................................................................................ 54 Rado v. Meachum, 699 F. Supp. 25 (D. Conn. 1988) ............................................................. 41, 42 Rhodes v. Chapman, 452 U.S. 337 (1981).............................................................................. 58, 60 Robinson v. Purcell Constr. Corp., 647 F. App’x 29 (2d Cir. 2016)............................................ 43 Rogers v. United States, 180 F.3d 349 (1st Cir. 1999) ................................................................. 51 Rosario v. Brown, 670 F.3d 816 (7th Cir. 2012) .......................................................................... 65 Ross v. Blake, 136 S. Ct. 1850 (2016) .............................................................................. 50, 51, 53 Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006) ................................................................ 58, 59 Sayyah v. Farquharson, 382 F.3d 20 (1st Cir. 2004) ................................................................... 51 Scaggs v. New York State Dep’t of Educ., No. 06-CV-0799 (RRM)(WDW), 2009 WL 890587
(E.D.N.Y. Mar. 31, 2009) ......................................................................................................... 70 Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273 (1987)....................................................... 67 Scott v. Benson, 742 F.3d 335 (8th Cir. 2014) .............................................................................. 65 Serfass v. Warden, No. 3:20-CV-513 (MPS) (D. Conn. Apr. 20, 2020) ...................................... 38 Serra v. Terrell, No. 10-CV-03044 (DLI), 2013 WL 5522850 (E.D.N.Y. Sept. 30, 2013) ......... 33 Shepherd v. Lempke, 2017 WL 1187859 (N.D.N.Y. March 30, 2017) ........................................ 50 Skakel v. Murphy, No. 3:07-CV-1625(PCD), 2009 WL 2253175 (D. Conn. July 27, 2009) ....... 42 Staffer v. Bouchard Transp. Co., Inc., 878 F.2d 638 (2d Cir. 1989) ............................................ 42 Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992)............................................................ 55, 56 Stepney v. Lopes, 597 F. Supp. 11 (D. Conn. 1984) ..................................................................... 40
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Stimpson v. Comm’r Correction Office, No. 3:16-CV-520 (SRU), 2017 WL 326314 (D. Conn. Jan. 23, 2017)............................................................................................................................ 50
Strong v. Lappin, 2010 WL 276206 (E.D.N.Y. Jan. 15, 2010) .................................................... 49 Sufasso v. Wilson, No. 3:20-CV-513 (MPS) (D. Conn. Apr. 20, 2020) ....................................... 31 Teague v. Lane, 489 U.S. 288 (1989) ........................................................................................... 32 Thornburgh v. Abbott, 490 U.S. 401 (1989) ................................................................................. 54 Turner v. Safley, 482 U.S. 78 (1987) ...................................................................................... 54, 55 United States. ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371 (2d Cir.
1968) ......................................................................................................................................... 40 United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974) ...................................... 68, 69 United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963)................................ 66 United States v. Addonizio, 442 U.S. 178 (1979) ......................................................................... 32 United States v. Almontes, No. 3:05-CR-58 (SRU), 2020 WL 1812713 (D. Conn. Apr. 9, 2020)
.................................................................................................................................................. 37 United States v. Amato, No. 19 Cr. 442 (ILG) (E.D.N.Y. Mar. 27, 2020) ................................... 67 United States v. Carpenter et al., No. 3:13-CR-226 (RNC) (D. Conn. Apr. 10, 2020)................ 39 United States v. Carpenter, No. 19-70, 2020 WL 1909098 (2d Cir. Mar. 25, 2020) ................... 67 United States v. Cassidy, No. 1:17-CR-00116-WMS-MJR (W.D.N.Y. Apr. 24, 2020) .............. 21 United States v. Coston, No. 3:16-CR-127 (SRU), Doc. 98 (D. Conn. Apr. 16, 2020) ............... 39 United States v. Credidio, 2020 WL 1644010 (S.D.N.Y. Apr. 2, 2020) ...................................... 31 United States v. Crispin, No. 3:19-CR-171 (VLB) (D. Conn. Apr. 21, 2020) ............................. 38 United States v. Desage, No. 2:13-CR-00039 (JAD-VCF), 2020 WL 1904584 (D. Nev.
Apr. 17, 2020) ........................................................................................................................... 65 United States v. Deutsch, No. 18 Cr. 00502, 2020 WL 1694358 (E.D.N.Y. Apr. 7, 2020) ......... 67 United States v. Filyaw et al., No. 3:18-CR-81 (SRU) (D. Conn. Apr. 6, 2020) ......................... 39 United States v. Flanagan, 868 F.2d 1544 (11th Cir. 1989)......................................................... 51 United States v. Gagne, No. 3:18-CR-242 (VLB), 2020 WL 1640152 (D. Conn. Apr. 2, 2020) 37
vii

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United States v. Gileno, No. 3:19-CR-161, 2020 WL 1307108 (D. Conn. Mar. 19, 2020) ......... 61 United States v. Gilliam, No. 3:15-CR-63 (JCH) (D. Conn. Apr. 27, 2020) ................................ 38 United States v. Gotti, No. 02-CR-743-07 (CM), 2020 WL 497987 (S.D.N.Y. Jan. 15, 2020)
...................................................................................................................................... 33, 34, 36 United States v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036 (E.D.N.Y. Mar. 20, 2020) .... 61 United States v. Hill, No. 3:19-CR-38 (JAM) (D. Conn. Apr. 28, 2020) ..................................... 37 United States v. Jefferson, No. CCB 19-487, 2020 WL 1332011 (D. Md. Mar. 23, 2020) ......... 61 United States v. Lipsky, No. 19 Cr. 203 (NGG) (E.D.N.Y. Mar. 24, 2020) ................................. 67 United States v. Martin, No. PWG-19-140-13, 2020 WL 1274857 (D. Md. Mar. 17, 2020) ...... 61 United States v. Passley, 2020 WL 1815834 (E.D.N.Y. Apr. 9, 2020) .................................. 61, 67 United States v. Rabadi, No. 13-CR-353, 2020 WL 1862640 (S.D.N.Y. Apr. 14, 2020) ............ 27 United States v. Rosado et al., No. 3:06-CR-18 (AVC) (D. Conn. Apr. 24, 2020)...................... 38 United States v. Rubiera-Herrera et al., No. 3:19-CR-123 (JAM) (D. Conn. Apr. 22, 2020) ..... 38 United States v. Sakelarakis, No. 3:18-CR-248 (JCH) (D. Conn. Apr. 22, 2020) ....................... 38 United States v. Salvagno et al., No. 5:02-CR-51 (LEK) (D. Conn. Apr. 23, 2020).................... 38 United States v. Smalling, 644 Fed. App’x 3 (2d Cir. 2016) ........................................................ 31 United States v. Villegas, 2020 WL 1649520 (C.D. Cal. Apr. 3, 2020) ....................................... 64 United States v. Washington, 549 F.3d 905 (3d Cir. 2008) .......................................................... 34 United States v. Rollins, Nos. 19-CR-34S & 11-CR-251S, 2020 WL 1482323 (W.D.N.Y. Mar.
27, 2020) ................................................................................................................................... 60 Victor v. Milicevic, 361 F. App’x 212 (2d Cir. 2010)................................................................... 65 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ...................................................... 71, 72, 73 Wasley Prod., Inc. v. Bulakites, No. 3:03-CV-1790 (MRK)(WIG), 2006 WL 3834240 (D. Conn.
May 31, 2006 ............................................................................................................................ 56 Webb v. Goord, 340 F.3d 105 (2d Cir. 2003) ............................................................................... 54 Whitley v. Albers, 475 U.S. 312 (1986) .................................................................................. 57, 58
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Wilson v. Seiter, 501 U.S. 294 (1991)......................................................................... 57, 58, 59, 60 Wilson v. Wells, No. 3:17CV40 (AWT), 2017 WL 6667515 (D. Conn. Sept. 6, 2017) ............... 32 Wilson v. Williams, No. 20-CV-00794, 2020 WL 1940882 (N.D. Ohio April 22, 2020) ............ 41 Woodford v. Ngo, 548 U.S. 81 (2006) .......................................................................................... 49 Wright v. Terrell, No. 10-CV-3492 (PGS), 2011 WL 5117851 (D.N.J. Oct. 26, 2011) .............. 34
Statutes 18 U.S.C. § 3252........................................................................................................................... 52 18 U.S.C. § 3582.................................................................................................................... passim 18 U.S.C. § 3621........................................................................................................................... 35 18 U.S.C. § 3624......................................................................................................... 22, 23, 24, 35 18 U.S.C. § 3626.................................................................................................................... passim 28 U.S.C. § 2241.................................................................................................................... passim 34 U.S.C. § 60541............................................................................................................. 22, 23, 35 Pub. L. No. 116-136, § 12003(b)(2) (2020)............................................................................ 24, 35
Rules Fed. R. Civ. P. 12(b)(1).................................................................................................... i, 1, 30, 75 Fed. R. Civ. P. 12(b)(6)................................................................................................... ii, 1, 30, 57 Fed. R. Civ. P. 23 ................................................................................................................... passim Fed. R. Civ. P. 53 .................................................................................................................... 53, 56 Fed. R. Civ. P. 56 ...................................................................................................................... 1, 31 Fed. R. Civ. P. 63 .......................................................................................................................... 54 Fed. R. Evid. 706 .......................................................................................................................... 54
ix

Case 3:20-cv-00569-MPS Document 24-1 Filed 05/05/20 Page 11 of 88 Regulations 28 C.F.R. § 542 ....................................................................................................................... 48, 53 Constitutional Provisions U.S. Const. amend. VIII.............................................................................................. 57, 60, 66, 68
x

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I. PRELIMINARY STATEMENT Petitioners Dianthe Martinez-Brooks, Rejeanne Collier, Jackie Madore, and Kenneth
Cassidy (collectively, “Petitioners”), and a putative class of potentially all inmates at the Federal Correctional Institution at Danbury in Danbury, Connecticut (“FCI Danbury”), request, pursuant to 28 U.S.C. § 2241, that this Court short-circuit the entire criminal justice process and direct the management of a prison by: (1) ordering, via a civil action, their immediate and unwarranted release from prison or placement in home confinement due to concerns related to the novel coronavirus (“COVID-19”); (2) declaring that FCI Danbury has committed an Eighth Amendment violation with respect to every single inmate at FCI Danbury; (3) implementing specific “safety” measures at FCI Danbury; and (4) appointing a Special Master “to make recommendations to the Court regarding the number of incarcerated people that FCI Danbury can house consistent with CDC Guidance on best social distancing and hygiene practices to prevent the spread of COVID19,” which essentially would result in a determination as to which convicted criminals (who have already been sentenced) may be released from prison—thereby divesting the judges of this Court and other courts of the authority to control their own criminal dockets. Respondents respectfully submit this memorandum of law in support of their motion to dismiss this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Docket No. 1) and Petitioners’ Motion for a Temporary Restraining Order and/or Preliminary Injunction1 (Docket Nos. 13 and 14) pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), or, alternatively, for summary judgment pursuant to Fed. R. Civ.
1 Petitioners’ relief requested in their Motion for a Temporary Restraining Order and/or Preliminary Injunction is merely a subset of the relief requested in their Petition. To obtain either a TRO or a PI, Petitioners would need to show either a likelihood of success on the merits or at least serious questions going to the merits. Charette v. Town of Oyster Bay, 159 F.3d 749, 754 (2d Cir. 1998). As set forth herein, Petitioners’ claims should be dismissed outright. Thus, Petitioners cannot meet the standards for a TRO or PI and the Court should deny Petitioners’ motion for such relief for the same reasons it should dismiss their Petition.

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P. 56. As demonstrated below, Petitioners’ claims are subject to dismissal. As a threshold matter, this Court does not have jurisdiction over Petitioners’ claims.
Although the Second Circuit has construed 28 U.S.C. § 2241 as permitting challenges to unconstitutional conditions of confinement, the relief Petitioners seek here—essentially the modification or reduction of their criminal sentences, as well as the criminal sentences of the entire population of inmates at FCI Danbury (which houses only sentenced offenders), or a subset thereof—has not been recognized as an available remedy to habeas petitioners challenging conditions of confinement in the Second Circuit. Additionally, Petitioners have not alleged that they have properly exhausted administrative remedies as required by 28 U.S.C. § 2241.
The implications of such an extraordinary order would be staggering; under Petitioners’ theory of appropriate habeas relief, a judge in a federal civil action would be permitted to commute the sentences of hundreds of post-conviction inmates. Petitioners completely overlook 18 U.S.C. § 3626, which is the component of the Prison Litigation Reform Act (“PLRA”) that establishes that courts are strictly limited in ordering the release of inmates “in any civil action in Federal court with respect to prison conditions” and that a single district judge is precluded from doing so. See id. § 3626(a)(3)(B).
Not only does the Petition suffer from these multiple legal defects that warrant dismissal, but it also presents a distorted picture of the efforts made at FCI Danbury to protect inmates from the threat to health and safety posed by COVID-19. Petitioners make bold accusations based on hearsay from convicted offenders who sought, or are seeking, release from confinement, and from purported experts who have never been to FCI Danbury, or at least not recently. To the contrary, as set out below, the Federal Bureau of Prisons (“BOP”) has made significant efforts to respond to this novel infectious disease which, until approximately four months ago, most people had never
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heard of and which expanded globally at an alarming and unprecedented rate. These efforts belie any suggestion that the BOP, including FCI Danbury, is failing to meaningfully address the risks posed by COVID-19 or take seriously the threat the pandemic poses to current inmates. Instead, these efforts show that the BOP and FCI Danbury have taken the threat very seriously and have mitigated the spread of COVID-19. Petitioners cannot establish any violation of their Eighth Amendment rights arising out of current conditions at FCI Danbury.
Lastly, this Court should strike the Petition’s class action allegations. Petitioners’ request for a sweeping and indiscriminate order certifying a class of roughly 984 inmates—presumably every inmate at FCI Danbury—should be rejected. Petitioners’ request is fundamentally incompatible with class-wide relief, as the putative class is not ascertainable and has no commonality or typicality. Indeed, the putative class would feature a hodgepodge of inmates, each of whom has his or her unique set of circumstances (including projected release dates, disciplinary histories, medical histories, bases for judicially imposed criminal sentences, and bases for judicial findings of dangerousness to the community and risk of flight) that would need to be considered by the judge presiding over their criminal proceeding, including any claim for bail or compassionate release. Accordingly, the Court should dismiss the Petition in its entirety. II. FACTUAL BACKGROUND
A. The Covid-19 Pandemic and the BOP’s Response Activated in 1940, FCI Danbury is a male low security level correctional institution (“Main Complex”) with an adjacent female minimum security level federal prison camp (“Camp”) and a female federal satellite low security level facility (FSL). Declaration of Diane Easter, Warden of Federal Correctional Institution at Danbury (“Decl.”) ¶ 3, attached hereto as Exhibit A. FCI Danbury is an institution that houses only sentenced offenders. Id. at ¶ 3. The Main Complex is a low security facility with a double-fenced perimeter, mostly
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dormitory or cubicle housing, and strong work and program components. Id. at ¶ 5. The staff-toinmate ratio at the Main Complex is higher than in the minimum security facilities. Id. As of the date of the attached declaration, the Main Complex houses 719 male offenders. Id. The rated capacity of the Main Complex is 554. Id. The rated capacity is not a figure which represents the maximum number of inmates that can be designated to the respective sections FCI Danbury. Id.
The Camp is a minimum security institution which has dormitory housing, a relatively low staff-to-inmate ratio, and no perimeter fencing. Id. at ¶ 6. As of the date of the attached declaration, the Camp houses 134 female offenders. Id. The rated capacity of the Camp is 146. Id.
The FSL is a low security facility with a single-fenced perimeter, cubicle housing, and strong work and program components. Id. at ¶ 7. As of the date of the attached declaration, FSL houses 131 female offenders. Id. The rated capacity of FSL is 198. Id.
The main complex, the Camp, and the FSL are separate facilities, and, and under the current lockdown, the inmate populations do not interact. Id. at ¶ 5. There are currently 264 staff employed at the institution. Id. at ¶ 4.
In January 2020, the BOP became aware of the first identified COVID-19 cases in the United States and took steps to prevent its introduction and spread in BOP institutions, including FCI Danbury. Id. at ¶ 9. To date, the BOP’s response to COVID-19 has occurred over six distinct “phases.” Id. at ¶ 10.
In January 2020, the BOP began Phase One of its Action Plan for COVID-19. Id. at ¶ 11. Phase One activities included, among other things, seeking guidance from the BOP’s Health Services Division and other stakeholders regarding the COVID-19 disease and its symptoms, where in the United States infections occurred, and the best practices to mitigate its transmission.
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Id. In addition, an agency task force was established to begin strategic planning for COVID-19 Bureau-wide. Id. From January 2020 through the present, the Bureau has been coordinating its COVID-19 efforts with subject matter experts 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. Id.
On March 13, 2020, the BOP implemented Phase Two of its Action Plan during which, for an initial period of 30 days, in order to reduce the spread of COVID-19 into or through FCI Danbury, the facility suspended, with certain limited exceptions: social visits; legal visits; inmate facility transfers; official staff travel; staff training; contractor access; volunteer visits; and tours. Id. at ¶ 12. During Phase Two, inmates were subjected to new screening requirements and newly arriving BOP inmates were screened for COVID-19 symptoms and “exposure risk factors,” including, for example, if the inmate had traveled from or through any CDC-determined, high-risk COVID-19 locations, or had had close contact with anyone testing positive for COVID-19. Id. at ¶ 13. Asymptomatic inmates with exposure risk factors were quarantined, and symptomatic inmates with exposure risk factors were isolated and evaluated for possible COVID-19 testing by local BOP medical providers. Id. On March 25, 2020, FCI Danbury implemented advanced enhanced screening measures for staff and contractors. Id. at ¶ 14. These enhanced screening procedures required all staff and contractors to self-report any symptoms consistent with COVID19, as well as any known or suspected COVID-19 exposure, and to have their temperature taken upon entry into any BOP facility. Id.
During Phase Two, the BOP implemented national “modified operations” in order to maximize social distancing within Bureau facilities. Id. at ¶ 15. These modifications included
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staggering meal and recreation times to limit congregate gatherings. Id. The BOP also established a set of quarantine and isolation procedures for known or potential cases of COVID-19. Id.
On March 18, 2020, the BOP implemented Phase Three of the COVID-19 Action Plan to maximize telework. Id. at ¶ 16. Additionally, as part of this phase, and in accordance with the Pandemic Influenza contingency plan, all cleaning, sanitation, and medical supplies were inventoried. Id. at ¶ 17.
On March 26, 2020, the BOP implemented Phase Four of the COVID-19 Action Plan and revised its preventative measures for all institutions; the agency updated its quarantine and isolation procedures to require all newly admitted inmates to be assessed using a screening tool and temperature check. Id. at ¶ 18. Thus, all new arrivals to FCI Danbury—even those who were asymptomatic—were placed in quarantine for a minimum of 14 days or until cleared by medical staff. Id. 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. Id.
FCI Danbury implemented Phase Five of the COVID-19 Action Plan on April 1, 2020. Id. at ¶ 19 Starting on that day, and for 14-days immediately thereafter: (i) all inmates were confined to their living quarters for the majority of the day; (ii) meals, commissary items, laundry, recreation materials, education materials, medical services and psychology services were delivered directly to inmates’ housing units; and (iii) inmates were released from their cells in small groups to engage in activities such as showers, exercise, phone calls, and email access. Id. at ¶¶ 19-20. During these time periods, inmates were directed to maintain appropriate physical distancing. Id. at ¶ 20.
On April 13, 2020, the BOP ordered the implementation of Phase Six of its COVID-19 Action Plan. Id. at ¶ 21. In implementing Phase Six, FCI Danbury extended the measures enacted in the nationwide actions in Phase Five, which includes continuing to perform rigorous medical
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screening, limiting inmate gathering, daily rounds, limiting external movement, and fit testing, until May 18, 2020. Id.
FCI Danbury has taken a number of additional measures in response to the COVID-19 pandemic to prevent the introduction and spread of COVID-19 into its facility.
B. Steps Being Taken at FCI Danbury to Prevent COVID-19 FCI Danbury has implemented the BOP’s national action plan, in compliance with the BOP’s national directives, and has also taken numerous other measures to fight the introduction and spread of COVID-19 within its facilities including providing inmate and staff education; conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures in accordance with the BOP policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and taking a number of other preventative measures. Id. at ¶ 22. From the outset of the COVID-19 pandemic, FCI Danbury officials have provided updates to inmates and staff regarding the virus and the BOP’s response, and have educated inmates and staff regarding measures that they should take to stay healthy. Id. at ¶¶ 20, 23-24, 51, 52. The measures that FCI Danbury has taken to insure the health and safety of its staff and inmates includes, but is not limited to, the following:
1. Isolation and Quarantine procedures The implementation of the BOP’s COVID-19 Action Plans at FCI Danbury can best be described as a “slowing down” of institutional operations, designed to limit the size of groups inmates can form and also the ability of these smaller groups to interact with each other at FCI Danbury. Id. at ¶ 23. This minimizes the opportunity for inmates to come into contact with infected persons, and if they do, minimizes the possibility that any infection will spread beyond the smaller group. Id.
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In general, smaller inmate groups were formed at FCI Danbury by dividing inmates by housing unit, and if applicable floor, so they can “shelter in place” with the fewest number of fellow inmates. Id. at ¶ 24. In order to reduce idle time and provide programs and activities, these groups are rotated through the recreation facility by themselves, and disinfection of the recreation facility is performed before the next group is rotated through it. Id. Programs are delivered on the units, including Education, Psychology, and Religious Services (especially in consideration of the Ramadan observance). Id. All meals are delivered to the units, with inmates receiving at least one hot meal per day. Id. Meal delivery to the units is performed by staff (instead of inmate food service workers) in order to maintain the integrity of the inmate group quarantine. Id. When inmates need to report to Health Services for activities that cannot be performed on the unit (medication administration, etc.), inmates only report to the clinic with other inmates from their group. Id. Once at the clinic they move throughout the space in accordance with markings on the floor to direct one-way travel, and wait in areas designed to facilitate social distancing. Id.
In addition, separate housing spaces have been established for “Isolation” (for inmates demonstrating symptoms) and “Quarantine” (asymptomatic) inmates. Id. at ¶ 25. These areas are distinct from the aforementioned housing unit groups and are identified with signs visible to anyone entering the unit. Id. Staff are required to utilize proper personal protective equipment (“PPE”) prior to entering these units to minimize to potential for cross-contamination between units. Id.
Certain units have also been set up to quarantine inmates who, in light of guidance regarding eligibility for release to home confinement under the expanded consideration authority granted to the Attorney General under the CARES Act, may soon be released to the community. Id. at ¶ 26. In order to protect against the risk of transferring inmates to the community that will
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contribute to the spread of COVID-19, any inmate granted home confinement is placed in a 14day quarantine prior to discharge from the BOP facility. Id. These “home confinement quarantine” units are intended to minimize the amount of time an inmate might be required to stay in a pre-release quarantine should they become eligible for this benefit. Id.
The Camp was placed on modified operations on March 19, 2020. Id. at ¶ 27. This involved dividing the Camp into four separate dormitory groups, each of which moves throughout the facility so there is no opportunity to have contact with the other dormitory groups. Id. Each dormitory group has a designated shared bathroom and shower facility, eats in their assigned dormitory, and is allowed to use the recreation facilities only with inmates from their dormitory group. Id. Due to the fact there have been zero positive COVID-19 infections at the Camp, isolation and quarantine procedures have not been utilized at the Camp. Id. Nonetheless, space in the Unicor warehouse and at the Main Complex has been designated to perform these functions should the need to isolate or quarantine Camp inmates arise in the future. Id.
The FSL was placed into modified status on March 19, 2020. Id. at ¶ 28. Housing at the FSL is a large dormitory that is divided into sections, with inmates assigned to live in cubicles containing bunks. Id. There are two areas in the Main Complex that have communal showers and bathrooms. Id. at ¶ 7. There are tables in the front of the dormitory for watching television. Id. There is also an area in front of the dormitory that has exercise equipment, a law and leisure library, and offices. Id. Food services, psychology services, medical, education, and visiting is in a separate building. Id. Areas of the FSL not ordinarily used as housing have been repurposed in order to accommodate isolation and quarantine procedures. Id. at ¶ 28. Further, recent COVID19 infections at the FSL have created a need to utilize the kitchen as a separate quarantine space. Id. The visiting room at the Main Complex has also been used as a quarantine space for at-risk
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female inmates who were tested at the beginning of the emergency and are awaiting return to the FSL. Id. The number of temporary quarantine spaces needed should be reduced as the different groups of inmates complete their quarantine periods (each established by the date the quarantine began) and can be reintroduced to the main living space at the FSL dormitory. Id.
The Main Complex was placed into modified operations on March 29, 2020. Id. at ¶ 29. The Main Complex has seven units that are open dorm style, two television rooms, one area of TRULINCS stations and two rooms that can house ten to twelve inmates each. Id. at ¶ 5. The showers and bathrooms are communal. Id. Two of these units have two-man cells with a toilet and sink in the cell. Id. These cell units also have communal showers, an area for television, and an area for phones. Id. The Main Complex facility has standalone housing units for isolation, quarantine (such as for newly-committed inmates; these inmates do not go straight into the general population), and “home confinement quarantine.” Id. at ¶ 29. Any Main Complex inmate who requires isolation is placed in a single-occupancy cell with a solid door that locks. Id. The auditorium has been set up for quarantine for home confinement inmates. Id. The FCI also has a unit dedicated to those who are released from isolation to continue to recover before they are returned to a general population unit. Id.
Should the need arise, each facility retains the ability to create new isolation/quarantine space. Id. at ¶ 30. For example, the Main Complex has been able to repurpose auditorium space into a pre-release quarantine for inmates transferring to home confinement, and has preplanned turning the dormant Unicor (Federal Prison Industries) factory into temporary housing. Id. The Camp has already converted space in the Unicor warehouse into cubicle housing, and two temporary buildings on loan from the United States Penitentiary in Lewisburg (PA) have been raised should additional isolation/quarantine space be needed. Id. Finally, the FSL has been able
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to repurpose classroom and activity space inside the facility into temporary living quarters in order to isolate/quarantine inmates. Id. Additional, temporary measures that have been taken include using the Main Complex visiting room as a quarantine facility for FSL inmates, and creating isolation cells inside the Main Complex for inmates from the FSL. Id.
Any inmate at FCI Danbury presenting with symptoms consistent with COVID-19 is immediately evaluated by a medical provider to determine whether testing and/or isolation is appropriate, and whether other measures (such as quarantine) should be implemented for inmates with whom the symptomatic inmate has had contact. Id. at ¶ 81.
2. Hygiene and Safety Practices at FCI Danbury Maintaining institutional and personal hygiene is always a priority in a correctional setting. Since the COVID-19 pandemic however, institutional and personal hygiene has been elevated to the utmost importance, especially since inmates have been largely restricted to their housing units since implementing Phase Five of the COVID-19 Action Plan. Id. at ¶ 31. Maintaining the highest standards of institutional and personal hygiene during modified operations is not only important for purposes of infection control, but also to minimize the possibility of disturbances or other events that might compromise the security and good order of the institution. Id. The Safety Department at FCI Danbury is responsible for distributing cleaning supplies throughout the institutions. Id. at ¶ 32. These include but are not limited to cleaning chemicals, spray bottles, cleaning rags and applicators, and the equipment necessary to perform cleaning tasks. Id. The chemicals used for cleaning at FCI Danbury are distributed to all areas of the institution on a regular schedule, and if any particular area requires additional cleaning supplies, staff assigned to that area can make arrangements with the Safety Department to receive more. Id. The Warden does not believe that the Safety Department has ever run out of cleaning supplies since the COVID-19 crisis began at FCI Danbury. Id.
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Currently, four specific cleaners are being used at FCI Danbury. Id. at 33. TriBase MultiPurpose Cleaner, hdqC2 disinfectant cleaner, and Airlift Tropical 13 air freshener have been the ordinarily employed cleaning chemicals at FCI Danbury. Id. Since the beginning of the COVID emergency however, a broad spectrum disinfectant, “Virex II/256” has been added to specifically address the coronavirus threat. Id. Virex II/256 is now used throughout the institution. Id.
Prior to this pandemic, chemicals used for cleaning at FCI Danbury were distributed throughout the institutions on a regular weekly and monthly schedule. Id. at ¶ 34. In between the regularly-scheduled distribution, staff were always able to request additional cleaning supplies if they were needed. Id. Since the current emergency, however, FCI Danbury has gone to a daily distribution of cleaning supplies. Id. at ¶ 35. On weekdays, an institution-wide announcement is made for staff to place their cleaning bottles outside the doors of their housing units, and the Safety Department staff refills or replaces needed supplies. Id. While prior to the pandemic inmate orderlies would report to the Safety Department to retrieve these supplies, in order to maintain the integrity to the group quarantine, staff now perform these functions. Id. Of course, if additional supplies are needed during the day, staff can coordinate the delivery of these items with the Safety Department. Id.
Once in the housing units, cleaning supplies are maintained in small caddies or bins kept in staff offices or closets. Id. at ¶ 36. Inmates can then ask for a bin of cleaning supplies to bring back to their living areas. Id. Large area disinfection is being performed at both the FSL and the Main Complex through use of backpack cleaning chemical sprayers. Id. at ¶ 37. This work is performed by inmate orderlies or staff, depending on the location (inmates cannot perform this work in an area where they might come into contact with inmates not in their quarantine group). Id. At this time, five more backpack sprayers are being routed to FCI Danbury from the BOP’s
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Command Center, and this will greatly expand the ability to perform this task. Id. Whether by backpack unit or spray bottles, inmate orderlies (working only within their unit, to maintain the integrity of the group quarantine) are cleaning all high-touch areas such as doorknobs, railings, knobs, and handles multiple times per day. Id.
As a final measure intended to ensure all inmate living and activity areas are maintained in the cleanest possible condition, the Warden has made each member of her Executive Staff individually responsible for overseeing the condition of specific housing units. Id. at 38.
3. The Availability of Soap and Other Personal Hygiene Products Inmates at FCI Danbury are provided with basic soap and personal hygiene products (razors, toothbrushes, toothpaste, etc.) by the institution. Id. at ¶ 39. These toiletries are maintained by staff whose offices are located in the housing units, so there is never a reason an inmate should not have access to soap at FCI Danbury. Id. FCI Danbury also operates a centralized laundry, and inmates in this facility have their clothes (institution issued items as well as personal articles purchased from commissary) washed for them by the laundry department. Id. at ¶ 40. Inmates at both the Camp and FSL are provided with no-cost washers/dryers/laundry soap which they can use to clean clothes and linens. Id. Beyond that, the commissary at FCI Danbury allows inmates to purchase toiletries, medication, food, and other items not issued regularly as part of the institution administration. Id. at ¶ 41. Similar to the offerings at any convenience store, the commissary at FCI Danbury offers a selection of up to 13 different soaps, to include Irish Spring, Dove, Pure Antibacterial, Noxema, and Neutrogena. Inmates can also buy Ajax dish detergent and laundry detergent from the commissary. Id. A complete list of items FCI Danbury inmates can buy is available on the BOP’s public website and can be seen at https://www.bop.gov/locations/institutions/dan/dan_ comlist.pdf. Id.
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A review of commissary records show that all four Petitioners have had regular access to the commissary throughout this time and regularly purchase soap and other personal hygiene products. Id. at ¶ 42. Since the beginning of the year, Petitioner Martinez-Brooks has spent approximately $391.10 at the commissary, including the purchase of Pure Antibacterial soap on three occasions (last purchased Pure Antibacterial Soap on April 2, 2020). Id. at ¶ 43. Since the beginning of the year, Petitioner Cassidy has spent approximately $567.20 at the commissary, including the purchase of various brands of soap on five occasions (last purchased Irish Spring Icy Blast on April 1, 2020). Id. at ¶ 44. Since the beginning of the year, Petitioner Collier has spent approximately $921.90 at the commissary, including the purchase of various brands of soap on ten occasions (last purchased Dove Soap on April 27, 2020). Id. at ¶ 45. Since the beginning of the year, Petitioner Madore has spent approximately $1,187.65 at the commissary, including the purchase of bar soap (last purchased three bars of Pure Antibacterial soap on March 24, 2020). Id. at ¶ 46.
4. Status of Personal Protective Equipment Staff and inmates at FCI Danbury have, and will continue to have, access to appropriate PPE. Id. at ¶ 47. Upon reporting to work each day, staff at FCI Danbury are provided with new surgical masks at the staff screening site to wear throughout their shift. Id. at ¶ 48. Staff are required to wear these masks, and failure to do so may be cause for employee discipline under terms of Program Statement 3420.11 Standards of Employee Conduct. Id. There are areas of the institution where staff might require additional PPE to perform their duties. Id. at ¶ 49. These areas include but are not limited to Health Services, Receiving & Discharge, and isolation housing units. Id. In these areas, kits have been assembled which contain the enhanced PPE to be used in that area (for example, gown, gloves, N-95 particulate respirators, face shields), and these kits are always available. Id. When the number of kits gets low, staff
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contacts Health Services and additional kits are provided. Id. In addition, kits are maintained in other areas of the institution (Control Center, Lieutenant’s Office) to ensure availability during all hours of the day. Id.
Throughout the institution and while working posts at the outside hospital, Correctional Officers are provided with PPE appropriate for their assigned post. Id. at ¶ 50. Staff are instructed as to the proper use of PPE through various memoranda detailing the type of PPE required at a given post or for a specific duty. Id. at ¶ 51. Memoranda have also been circulated to instruct staff as to the proper donning/doffing of PPE, and video instruction is also available on the computer desktop of every FCI Danbury employee. Id.
Inmates at FCI Danbury were initially provided with two of the same surgical masks which were provided to staff. Id. at ¶ 52. Once FCI Danbury was able to procure cloth masks, two cloth masks were issued to every inmate. Id. Inmates can still request, and will be provided with, the disposable surgical masks provided to staff. Id. Inmates are required to wear masks at all times except when they are eating or sleeping, and failure to do so may make the inmate subject to discipline under Program Statement 5270.09 Inmate Discipline Program. Id. Inmates performing cleaning or orderly duties have always had, and will continue to have, access to gloves or other PPE as may be necessary for them to perform their assigned duties. Id. at ¶ 53.
5. Staffing FCI Danbury staff work and live in an area of the country where there has been widespread community transmission of COVID-19. Id. at ¶ 54. Through communications from the BOP leadership, local Executive Staffs, and individual supervisors, staff have been informed how to perform regular self-monitoring for symptoms, practice social distancing, and to disinfect and clean their work spaces. Id. Anyone who develops signs or symptoms of illness is sent home. Id.
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Beginning on or about March 25, 2020, staff at FCI Danbury were subjected to enhanced health screening prior to the start of their shift. Id. at ¶ 55. These enhanced screening measures involve every staff member reporting to a screening site in the front lobby prior to the start of their shift, where they are required to self-report any symptoms consistent with COVID-19 as well as any known or suspected COVID-19 exposure and are further required to have their temperature taken. Id. at ¶¶ 55, 88. Staff are not permitted to report to their post without first reporting to the staff screening site. Id.
If a staff member reports symptoms consistent with COVID-19, has known or a suspected COVID-19 exposure, or registers a temperature of 100.4 degrees or higher, they are sent home. Id. at ¶ 56. A BOP medical officer will then contact the staff member to determine when it would be safe and appropriate for them to return to the institution. Id.
If a staff member has been determined to be positive for COVID-19 following a laboratory test, the following criteria is used to assess their suitability for returning to work: (a) at least 3 days (72 hours) need to have passed since recovery (defined as resolution of fever without the use of fever-reducing medications); and, (b) improvement in respiratory symptoms (e.g., cough, shortness of breath); and, (c) at least 7 days have passed since symptoms first appeared. Id. at ¶ 57. If a staff member has been identified as a prolonged close contact of a COVID-19 positive case, and did not have the appropriate PPE or had a breach in their PPE, as long as the staff member remains asymptomatic, they: (a) return to work for their regular shift; and (b) are required to undergo temperature monitoring and symptom checks upon arrival to work, and are also instructed to perform self-monitoring at home; and, (c) are instructed to immediately stop work, notify their supervisor, and isolate at home if symptoms consistent with COVID-19 (e.g., fever, cough, or shortness of breath) develop; and, (d) are directed to quarantine themselves when not at work for
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a period of 14 days. Id. at ¶ 58. If a staff member at FCI Danbury is symptomatic or becomes symptomatic, they: (a) are not allowed to report to work; and (b) are required to give notice to their Supervisor; and (c) are directed to notify their local Health Department or their personal healthcare provider Id. at ¶ 59.
6. Testing FCI Danbury is conducting testing in accordance with CDC guidelines. Id. at ¶ 79. The CDC has explained that “[n]ot everyone needs to be tested for COVID-19,” and “decisions about testing are at the discretion of state and local health departments and/or individual clinicians.” See cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html (last visited on May 2, 2020). Id. As of April 9, 2020, FCI Danbury began daily temperature checks of the entire inmate population at the institution. Id. at ¶ 80. The Lieutenants at FCI Danbury have been provided with infra-red no-touch thermometers to perform this task, and every day they visit each housing unit to take the temperature of all inmates assigned to that unit. Id. If in the course of performing these temperature checks any inmate is found to have a temperature of 99 degrees or higher, Health Service staff are contacted and the inmate is sent for a follow-up assessment to be performed by a licensed health care provider. Id. At FCI Danbury, the decision whether to test an inmate for COVID-19 is made by BOP medical providers 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; and (3) whether the inmate is considered “high-risk.” Decl. at ¶ 82. On April 14, 2020, the Camp received an “ID NOW Abbot Machine” that can deliver positive or negative test results for COVID-19 in approximately fifteen minutes. Id. FCI Danbury has 150 COVID-19 testing kits in stock. Id. FCI Danbury also has the ability to order and quickly receive additional kits from a designated vendor if the need arises. Id.
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During the week of April 25, 2020 the office of Senator Christopher Murphy reached out to FCI Danbury to discuss testing of inmates at FCI Danbury. Id. at ¶ 85. Between May 2 and 3, 2020, every FSL inmate was tested using these kits. Id. During this weekend, 143 tests were performed, and 20 inmates at FSL tested positive for COVID-19. Id. Since the advent of the emergency, which includes the testing conducted over the past weekend noted above, 205 inmates have been tested for COVID-19. Id. at ¶ 83. In total, 69 inmates and 56 staff have tested positive for COVID-19. Id. at ¶ 83.
7. Medical Services at FCI Danbury The Health Services department at FCI Danbury is staffed with both civilian health care providers and uniformed officers from the Commissioned Corps of the United States Public Health Service (“USPHS”). Id. at ¶ 86. In total, the Health Services department at FCI Danbury consists of one Health Services Administrator, two physicians, one part-time Mid-Level Provider, one IOP/ID Registered Nurse, one Registered Nurse, three Emergency Medical TechnicianParamedics, one dentist, one dental hygienist, one licensed clinical social worker, one medical records technician, one health services administrative assistant, three contract medical assistants, one contract phlebotomist, and one contract x-ray technician. Id. Since the COVID-19 emergency began, three BOP and two contract Health Services staff were placed on leave due to testing positive for COVID-19. Id. at ¶ 87. Prior to the COVID-19 emergency two staff members were on medical leave status and one had been granted paternity leave. Id. Due to these absences, the BOP’s Northeast Regional Office (“NERO”) sent a Medical Asset Support Team (“MAST”) to assist FCI Danbury with its COVID-19 response. Id. This MAST includes an Associate Warden, two Physician Assistants, and one pharmacist. Id. Under the current state of emergency, instead of having inmates going to medical services for treatment for non COVID-19 related symptoms, a social worker and hygienist go to the units
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to pass out and collect sick call forms. Id. at ¶ 90. The social worker and hygienist are not conducting sick call but, instead, are bringing the forms back to medical staff for review. Id. The forms are triaged by a Registered Nurse and/or a Physician Assistant for appropriate action. Id. Inmates are not being denied access to further medical follow-up. Id. at ¶¶ 84, 90. Sick calls are placed on the schedule, and staff round in all areas of the institution. Id. at ¶ 90. If an inmate presents with a more emergent case, the PA will call the inmate up to medical for an appointment. Id.
All inmates who present with COVID-19 symptoms are isolated and tested the same day, provided testing supplies are available. Id. at 91. Under no circumstances are inmates who have been placed in isolation released to the general population prior to meeting the CDC’s symptombased criteria for appropriateness, which includes (1) being fever-free for greater or equal to 72 hours without the use of fever-reducing medication, and (2) respiratory symptoms have improved, and (3) at least 7 days have passed since the first symptoms appeared. Id. When an FCI Danbury inmate is receiving treatment for COVID-19 at an outside hospital, Health Services staff engage in daily contact and consultation with the community based infectious disease specialists providing the treatment. Id.
The pharmacy at FCI Danbury has remained functioning throughout this period of modified operations. Id. at ¶ 92. Whenever possible inmates “self carry” their medications, meaning they are allowed to maintain their prescription medications in their property and are responsible for taking the medication themselves. Id. Otherwise, there are two scheduled “moves” per day when inmates can, within their quarantine group, proceed to the clinic for “pill line” or staff-assisted medication administration. Id.
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III. COMPASSIONATE RELEASE AND HOME CONFINEMENT A. Compassionate Release The 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; specifically, the inmate’s sentencing judge. However, upon an inmate’s request, the Director of the BOP may make a motion to an inmate’s sentencing court to reduce a term of imprisonment under 18 U.S.C. § 4205(g) and 18 U.S.C. § 3582(c)(1)(A). This process is outlined in the United States Department of Justice Federal 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.2
Staff at FCI Danbury are receiving and processing requests for Compassionate Release as quickly as possible. Id. at ¶ 94. Indeed, since this emergency began (through May 4, 2020), the Reduction in Sentence (“RIS”) Coordinator at FCI Danbury has received 241 requests for release. Id. As of May 4, 2020, 136 completed requests have been processed and denied; 18 have been returned to the inmate seeking further information; 70 are processing through the various staff who need to review the specific application, and 17 are awaiting the Warden’s review. 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 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.
2 This BOP Program Statement and all other program statements and operations memoranda cited herein are available at www.bop.gov via the Resources link.
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Petitioners Martinez-Brooks, Collier, and Cassidy have submitted requests for compassionate release to the Warden, see Decl. at ¶ 95, and Petitioners Cassidy and Collier have even filed Motions for Compassionate Release with their respective sentencing judges. Petitioner Cassidy’s Motion for Compassionate Release was denied without prejudice as the United States District Court for the Western District of New York found he had not exhausted administrative remedies. See United States v. Cassidy, No. 1:17-CR-00116-WMS-MJR, Doc. No. 61, at p. 2 (W.D.N.Y. Apr. 24, 2020), docket sheet attached hereto as Exhibit B. On May 4, 2020, Petitioner Cassidy refiled his Motion for Compassionate Release, and this motion has been set down for hearing on May 6, 2020. Id. Petitioner Collier’s Motion for Compassionate Release is still pending in the United States District Court for the Western District of New York. See United States v. Collier, No. 6:12-CR-06003-CJS (W.D.N.Y.), docket sheet, attached hereto as Exhibit C. The Petitioners have not claimed that they filed administrative claims relating to all other condition of confinement remedies they seek, and FCI Danbury does not have a record of any such claims. Decl. at ¶ 97.
Additionally, to date, FCI Danbury inmates have filed numerous Motions for Compassionate Release in the United States District Courts nationwide, including the United States District Court for the District of Connecticut. See Section VI.B, infra. See also the United States Attorney’s Office for the District of Connecticut’s Spreadsheet tracking Motions for Compassionate Release and Decisions Rendered by the Article III Judges in this District, attached hereto as Exhibit F.
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
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whether they are appropriate for home confinement.3 By memoranda dated March 26, 2020, and April 3, 2020, the Attorney General directed the BOP to “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.” See Attorney General Memoranda dated March 26, 2020 (Exhibit D) and April 3, 2020 (Exhibit E), attached hereto. In assessing which inmates should be granted home confinement, the Attorney General directed the BOP to consider the totality of the circumstances of each inmate, the statutory requirements for home confinement, and a series of factors including the age and vulnerability of the inmate, the security level of the facility holding the inmate, the inmate’s conduct while incarcerated, the inmate’s score under the Prisoner Assessment Tool Targeting Estimated Risk and Needs, whether the inmate has a demonstrated and verifiable reentry plan that will prevent recidivism and ensure public safety (including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face at their current facility), and the inmate’s crime of conviction. Exhibit E at pp. 1-2.
In addition to these factors, before granting an inmate release on home confinement, the Attorney General directed the BOP Medical Director, or his designee, “to make an assessment of the inmate’s risk factors for severe COVID-19 illness, risks of COVID-19 at the inmate’s prison facility, as well as the risks of COVID-19 at the location in which the inmate seeks home confinement.” Id. at 2. FCI Danbury is following this guidance. Decl. at ¶ 60.
Although the BOP lacks the authority to release an inmate from his sentence, the 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
3 See https://www.bop.gov/resources/news/20200405_covid19_home_confinement.jsp (last visited May 2, 2020).
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also BOP Program Statement 7320.01, Home Confinement and BOP Operations Memorandum,
Home Confinement under the First Step Act. Decl. at ¶ 60. Generally, the BOP may place a
prisoner in home confinement only for the lesser of 10 percent of the term of imprisonment or 6
months. 18 U.S.C. § 3624(c)(2). In order to appropriately evaluate an individual for home
confinement, FCI Danbury staff assesses the risk of criminal activity in the community and
determines whether there is an appropriate home where the inmate can be placed. Decl. at ¶ 62.
This is a time and resource intensive process. Upon receipt of the staff assessment, the BOP
reviews the assessment and makes the final determination regarding home confinement. Id. at
¶ 63. If approved, absent any disciplinary infractions, the inmate would serve the remainder of his
or her sentence on home confinement after being quarantined for 14 days. Id. at ¶ 64.
Under 34 U.S.C. § 60541, the BOP may release some or all eligible elderly offenders and
eligible terminally ill offenders from BOP facilities to home detention, upon written request from either BOP staff, or an eligible elderly offender4 or eligible terminally ill offender5. Decl. at ¶ 60.
In order to appropriately evaluate an elderly or terminally ill individual for home confinement, the
BOP assesses the risk of criminal activity in the community and determines whether there is an
appropriate home where the individual can be placed. Id. Inmates that do not meet the criteria for
4 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 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. 34 U.S.C. § 60541.
5 “Eligible terminally ill offender” is defined as an offender in the custody of BOP who meets all of the above-stated criteria except the age restriction, and has been determined by a medical doctor approved by BOP to be in need of care at a nursing home, intermediate care facility, or assisted living facility, or diagnosed with a terminal illness. 34 U.S.C. § 60541.
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the elderly home confinement can be placed on home confinement under the BOP’s general authority to do so. 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 Director of the BOP to immediately maximize appropriate transfers to home confinement of all appropriate inmates where COVID-19 is materially affecting operations. Exhibit E at 1; Decl. at ¶ 65. In light of the COVID-19 pandemic, the 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 memoranda dated March 26, 2020, and April 3, 2020. Decl. at ¶ 71. The BOP has increased home confinement by over 69.1% since March 2020, and is continuing to aggressively screen inmates for home confinement. Id. at ¶ 73.
Inmates do not need to apply to be considered for home confinement under the CARES Act. Id. at ¶ 74. The BOP Case Management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General. Id. 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. Id.
Pursuant to the Attorney’s General’s direction, the BOP is currently assessing a number of factors to ensure that an inmate is suitable for home confinement. Id. at 75. The factors to be
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considered when reviewing and referring inmates for home confinement are, in addition to the above: primary or prior offense is not violent; primary or prior offense is not a sex offense; primary or prior offense is not terrorism; no detainer for the inmate; the inmate’s Mental Health Care Level is less than CARE-MH 4; the inmate’s recidivism risk score is Minimum; the inmate has had no incident reports in the past 12 months (regardless of severity level); the inmate is a U.S. citizen; the inmate has a BRAVO score (custody classification) of Low or Minimum; the inmate has served 25% or more of their sentence and have 18 months or less remaining; and the inmate has a viable release plan. Id. at ¶¶ 75-76.
As part of this review, not only does a Unit Team review each inmate, a review is conducted by the Medical Director, or his designee, and the Medical Department (“Medical”). Id. at ¶ 63. Medical conducts multiple reviews. Id. Initially, Medical must determine the age and vulnerability of the inmate related to COVID-19 risk factors in accordance with CDC and prevention guidelines. Id. at ¶ 62. Additionally, Medical reviews the conditions under which the inmate would be confined upon release to determine whether those conditions would present a lower risk of contracting COVID-19 than the inmate would face at the BOP facility, and also determines whether frequent and on-going medical care is required within the next 90 days. Id. at ¶¶ 62-63.
Staff at FCI Danbury have been reviewing inmates for home confinement since the Attorney General’s March 26 guidance issued. Id. at ¶ 78. Because this guidance has changed several times (in some cases causing inmates to be reviewed more than once), an exact number of inmates that have been reviewed is impossible to arrive at. Id. However, with the assistance the Case Management Coordinator, the Warden estimates that approximately 159 FCI Danbury inmates have been reviewed for home confinement since March 26, 2020. Id. These reviews have
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led to 21 FCI Danbury inmates being released to home confinement, and another 2 inmates having been released on furlough. Id. IV. THE PETITION AND ALLEGED FACTS
The gravamen of Petitioners’ allegation is that, because of their age and/or medical conditions, they have elevated risk of serious, adverse outcomes if they contract COVID-19 and must be released from custody or placed on home confinement because detention at FCI Danbury per se poses an increased risk of health complications or death from COVID-19. See Petition.
A. Petitioner Kenneth Cassidy Petitioner Cassidy is fifty-four year old inmate in the Main Complex at FCI Danbury. Petition, Exhibit D at ¶ 1. Petitioner Cassidy is serving a sentence of five years arising from a conviction for conspiracy to commit wire fraud and willful failure to file an income tax return. Id. ¶ 3. Petitioner Cassidy’s release date is March 31, 2021, and his projected home confinement release date is October 1, 2020. Id. According to the Petition, Petitioner Cassidy has significant cardiovascular issues, including ischemic heart disease (i.e., deficient blood supply from a narrowing of the blood vessels), unstable angina, and hypertension. Petition ¶ 32. Petitioner Cassidy claims he suffered three heart attacks, including two in his thirties and has chronic bronchial asthma. Id. On April 10, 2020, Petitioner Cassidy moved for release to home confinement or for a sentence reduction to time served under 18 U.S.C. § 3582(c)(1)(A) on the ground that he is at heighted risk to develop COVID-19 given his asthma and cardiac conditions and the outbreak of the coronavirus at FCI Danbury. See Cassidy, No. 1:17-CR-00116-WMS-MJR, Doc. 61, at p. 2; Exhibit B. Petitioner Cassidy first applied for the same relief from the BOP on April 4, 2020.6 On
6 “Cassidy twice submitted requests for compassionate release to the Bureau of Prisons. He submitted his first request on April 4, 2020, by way of an ‘Inmate Request to Staff’ form addressed to his
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April 24, 2020, the court denied Petitioner Cassidy’s motion without prejudice after determining that the court lacked authority to order the relief Petitioner Cassidy sought under the compassionate release statutory provision, 18 U.S.C. § 3582(c)(1)(A), because Petitioner Cassidy had failed to exhaust his administrative remedies. Exhibit B, Docket No. 61, at p. 6. The court invited Petitioner Cassidy to file an updated motion once exhaustion is complete. Id. at p. 16, n. 9. Petitioner Cassidy’s administrative request for compassionate release was denied on April 22, 2010. Decl. at ¶ 95. Petitioner Cassidy renewed his motion on May 4, 2020, and it is set down for hearing on May 6, 2020.
B. Petitioner Dianthe Martinez-Brooks Petitioner Martinez-Brooks is a 50-year old inmate in the Camp at FCI Danbury. Petition ¶ 2 and Exhibit C, at ¶ 2. Petitioner Martinez-Brooks is serving a 48 month sentence for wire fraud.7 Id. Petitioner Martinez-Brooks’ release date is June 25, 2022. Id. at ¶ 3. According to the Petition, Petitioner Martinez-Brooks suffers from asthma, hypertension, arthritis and systemic lupus erythematosus (“SLE”). Petition ¶ 26. Petitioner Martinez-Brooks states she takes Atenolol for hypertension and has a Proventil emergency inhaler and Asmanex Twisthaler (mometasone furoate inhalation powder, 220 mg) for her asthma. Id. Since her incarceration, Petitioner Martinez-Brooks claims she was proscribed steroids once for the joint and muscle inflammation associated with her lupus. Id.
case manager and through a contemporaneous email to the warden. (See Doc. 57-1, pp. 3-5.) He submitted his second request on April 15, 2020, by way of another ‘Inmate Request to Staff’ form addressed to his case manager. (See Doc. No. 57-1, p. 2.) While the government represents that Cassidy never sent his email to the warden and never submitted his first request to his case manager, it has submitted no affidavits in that regard and, in fact, it readily obtained and submitted copies of these documents that were reportedly never received. Accordingly, in the absence of evidence to the contrary, this Court finds that Cassidy first requested compassionate release from the Bureau of Prisons on April 4, 2020.” Exhibit B, Doc. 61 at n1.
7 To date, there have not been any positive cases of COVID-19 at the Camp. Decl. at ¶ 27.
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Although the Petition is silent with respect to whether Petitioner Martinez-Brooks has filed a Motion for Compassionate Release, she claims that she asked the Warden for compassionate release on March 26, 2020. Petition, Exhibit C at ¶ 25. Petitioner Martinez-Brooks states she was given paperwork to sign on April 19, 2020 relating to home confinement and/or a halfway house. Id. at ¶ 26. However, Petitioner Martinez-Brooks claims that a memorandum came out on April 21, 2020, stating that, if an inmate had not completed 50 percent of their sentence, they were ineligible for compassionate release. Id. Petitioner Martinez-Brooks then referenced the April 23, 2020, memorandum that amended this requirement to completion of 25 percent of the inmate’s sentence with 18 months or less remaining to serve. Id. Petitioner Martinez-Brooks does not indicate the status of her compassionate release request and does not state whether she has filed a motion for compassionate release with her sentencing judge. According to FCI Danbury records, Petitioner Martinez-Brooks filed a new administrative request for compassionate release on April 24, 2020. Decl. at ¶ 95.
C. Petitioner Rejeanne Collier Petitioner Collier is a 64-year old inmate in the Camp at FCI Danbury. Petition ¶¶ 2, 30. On January 13, 2012, Collier pled guilty to conspiracy to possess with intent to distribute and to distribute one kilogram or more of heroin. See Collier, No. 6:12-CR-06003-CJS, Doc. 13 (Exhibit C). On October 12, 2012, the United States District Court for the Western District of New York sentenced her to a term of 19 years imprisonment and a term of supervised release of 10 years. Id. at Doc. 34. At sentencing, after reviewing Collier’s lengthy criminal history, this Court told Collier, “you’ve been a criminal for most of your adult life.” Exhibit C, Doc. 66, at p. 7. On June 4, 2015, Collier filed a motion for reduction of her sentence pursuant to 18 U.S.C. § 3582(c)(2). Exhibit C, Doc. 54. The government opposed the motion. Exhibit C, Doc. 57. On September 14, 2015, this Court granted the Section 3582(c) motion and reduced her sentence to 14 years
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imprisonment. Exhibit C, Doc. 58. On April 16, 2020, Petitioner Collier, through counsel, filed a Motion for Compassionate
Release. Exhibit C, Doc. 64. The government opposed this motion. Exhibit C, Doc. 66. The motion remains pending. On April 15, 2020, Petitioner Collier submitted an administrative request for compassionate release which was sent back to her on April 24, 2020 for corrections. Decl. at ¶ 95.
D. Petitioner Jackie Madore Jackie Madore is a 50-year-old inmate in FSL at FCI Danbury. Petition ¶¶ 3, 31. Although the Petition is silent as to Petitioner Madore’s conviction, the Petition states that she has 20 months remaining on her sentence. Id. Petitioner Madore claims she suffers from hypertension, hypothyroidism, and Hepatitis C. Id. The Petition is also silent as to whether Petitioner Madore filed an administrative claim seeking release or filed a motion for compassionate release. The Respondents did not find that an administrative claim had been submitted by Petitioner Madore or that a motion for compassionate release had been filed with a United Sates District Court. Id. at ¶ 95. E. Petitioners’ Requested Relief Petitioners request broad and extraordinary relief, including the immediate “release from custody or to home confinement members of the Subclass [identified by Petitioners as those at FCI Danbury who are 50 and over or those with serious medical conditions]”; requiring Respondents to provide “medically adequate social distancing and health care and sanitation” for the remaining 9848 inmates at FCI Danbury; the appointment of a Special Master “to make recommendations to
8 The Petition claims there are approximately 1046 inmates at FCI Danbury. This number is incorrect. As of the date of this filing, there are 984 inmates at FCI Danbury. Decl. at ¶¶ 5-7.
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the Court regarding the number of incarcerated people that FCI Danbury can house consistent with CDC Guidance on best social distancing and hygiene practices to prevent the spread of COVID19”; and to order other safety measures such as the issuance of soap, towels, cleaning supplies; quarantined access to phones, etc. Petition, pp. 66-70. Petitioners also ask the Court to order Respondents “to identify within twenty-four (24) hours of the Court’s order, and submit to the Court a list of, all Subclass members, and requiring Respondents to answer as to why the habeas petition and relief sought herein should not be granted”9 and to certify the Petition as a Class Action. Id. V. STANDARDS OF REVIEW
A. Federal Rules of Civil Procedure Rule 12(b)(1) An action is properly dismissed under Rule 12(b)(1) “when the district court lacks the statutory or constitutional power to adjudicate” the case. See Doyle v. Midland Credit Mgmt., Inc.,

9 On April 29, 2020, undersigned counsel advised Petitioners’ counsel that the BOP would provide

a list of all inmates at FCI Danbury whom the CDC has identified as being high-risk for severe illness from

COVID-19. This includes individuals who are 65 years of age or older or those who suffer from either: (1)

chronic lung disease or moderate to severe asthma; (2) serious heart conditions; (3) the

immunocompromised, which can be caused by many conditions, 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; (4) severe obesity (body mass index of 40 or

higher); (5) diabetes; (6) chronic kidney disease undergoing dialysis; (7) liver disease.

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html

(last

visited 04/30/2020). Due to Privacy Act concerns, the list would include the identity of the inmate, the

inmate’s sentencing court[,] and the case number of their underlying criminal conviction but would not

include information about the specific medical condition suffered by each inmate. Additionally,

undersigned counsel advised that a request for a Protective Order would need to be submitted, and entered

by the Court, before production of the list.

Petitioners’ counsel indicated that he would have to discuss this with “the team” and would get back to undersigned counsel the next day, April 30, 2020. To date, undersigned counsel have not received a response from Petitioners’ counsel about this list.

If the Court agrees with Respondents that this Petition, as well as the Motion for a Temporary Restraining Order and/or Preliminary Injunction, should be denied, this request becomes moot.

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722 F.3d 78, 80 (2d Cir. 2013) (citation omitted). When “deciding a Rule 12(b)(1) motion, the court may also rely on evidence outside the complaint,” including competent affidavits. See Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.à.r.l, 790 F.3d 411, 417 (2d Cir. 2015).
B. Federal Rules of Civil Procedure Rule 12(b)(6) A motion to dismiss pursuant to Rule 12(b)(6) should be granted where a complaint fails to plead facts to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 67778 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding a Rule 12(b)(6) motion, the court may consider, in addition to the factual allegations of the complaint, “documents appended to the complaint or incorporated in the complaint by reference, and ... matters of which judicial notice may be taken.” Concord Assocs., L.P. v. Entm’t Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016) (internal quotation marks omitted). “Agency determinations and administrative findings are public records of which a court may properly take judicial notice.” Lia v. Saporito, 909 F. Supp. 2d 149, 161 (E.D.N.Y. 2012).10 VI. ARGUMENT Petitioners bear the burden of establishing the Court’s jurisdiction. Petitioners have failed to allege a sufficient basis to invoke the Court’s jurisdiction over the subject matter. A. The Court Lacks Subject Matter Jurisdiction to Hear Petitioners’ Claims as
Petitioners have Failed to Exhaust Administrative Remedies Before the Court can properly consider a petition for habeas corpus pursuant to Section 2241, the Petitioners must exhaust all administrative remedies. Sufasso v. Wilson, No. 3:20-CV513 (MPS), Doc. 5 (D. Conn. Apr. 20, 2020) (“As an initial matter, the Second Circuit has held
10 Alternatively, should the Court construe the present motion as one for summary judgment, summary judgment is appropriate where, as here, “there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex v. Catrett, 477 U.S. 317, 322-23 (1986).
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that an inmate must exhaust administrative remedies prior to filing a habeas petitions under 28 U.S.C. § 2241.” (quoting United States v. Credidio, 2020 WL 1644010, at *2 (S.D.N.Y. Apr. 2, 2020) (citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001))). “The failure to exhaust constitutes a procedural default that bars judicial review unless the petitioner makes a showing of cause and prejudice.” Sufasso, No. 3:20-CV-513 (MPS) (quoting Credidio, 2020 WL 1644010, at *2 (citation omitted)). See also United States v. Smalling, 644 Fed. App’x 3, 4-5 (2d Cir. 2016) (challenge to execution of sentence must be brought in a Section 2241 proceeding, but only “after exhaustion of administrative remedies”); Wilson v. Wells, No. 3:17CV40 (AWT), 2017 WL 6667515, at *2 (D. Conn. Sept. 6, 2017) (“a prisoner must exhaust his or her administrative remedies prior to filing a section 2241 petition or exhaust state court remedies prior to filing a section 2254 petition.”).
As the Petitioners make various claims seeking multiple remedies, the Respondents have divided the exhaustion argument into two segments. First, have the Petitioners exhausted administrative remedies with respect to their request for release from custody or to home confinement. As release from custody or placement in home confinement is not a remedy available under a 28 U.S.C. § 2241 conditions of confinement habeas, an exhaustion analysis is not essential with respect to these claims. Second, have Petitioners exhausted administrative remedies with respect to their specific requests for additional “safety” measures (i.e. soap, towels, access to quarantined telephone, etc.) at FCI Danbury. The answer to this question is no. Petitioners have not filed any administrative claims with respect to their requests for additional “safety” measures at FCI Danbury.
B. This Court Lacks Authority to Divest the BOP and Sentencing Courts of Their Jurisdiction to Place Inmates in Home Confinement or The Sentencing Judge’s Authority to Amend a Term of Imprisonment
Petitioners seek to change the terms of their sentence in light of the pandemic. However,
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“‘[a] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment’ and may not be modified by a district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 824 (2010) (quoting 18 US.C. § 3582(b)). As the Supreme Court has recognized, finality is an important attribute of criminal judgments, and one “essential to the operation of our criminal justice system.” Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality opinion). Accordingly, it is well-established that once a district court has pronounced a sentence and the sentence becomes final, even that district court has no inherent authority to reconsider or alter that sentence. Rather, it may do so only pursuant to statutory authorization. See, e.g., United States v. Addonizio, 442 U.S. 178, 189 & n.16 (1979). Consistent with this principle of finality, 18 U.S.C. § 3582(c) provides that a court generally “may not modify a term of imprisonment once it has been imposed,” except in three circumstances: (1) upon a motion for reduction in sentence under 18 U.S.C. § 3582(c)(1)(A); (2) “to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure,” 18 U.S.C. § 3582(c)(1)(B); and (3) where the defendant was sentenced “based on” a retroactively lowered sentencing range. 18 U.S.C. § 3582(c)(2); United States v. Gotti, No. 02-CR-743-07 (CM), 2020 WL 497987, at *1-*6 (S.D.N.Y. Jan. 15, 2020) (noting that “[a] court is not required to reduce a sentence on compassionate release grounds, even if a prisoner qualifies for such reduction because of his medical condition”).
Although the Second Circuit has construed Section 2241 as permitting habeas petitioners to raise challenges to prison conditions, “Section 2241 does not provide an avenue for challenging the length of a sentence” based on poor conditions of confinement. See Grant v. Terrell, No. 10CV-2769 (MKB), 2014 WL 2440486, at *3 (E.D.N.Y. May 29, 2014) (reasoning that “Section 2241 permits habeas petitioners to challenge the post-conviction administration of a sentence, but
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it does not provide an avenue for challenging the length of a sentence” and denying petitioner’s request for “a two-level sentence reduction and an order of immediate release, based on the conditions of confinement” of petitioner’s prison); Medina-Rivera v. Terrell, No. 11-CV-0734 (BMC), 2011 WL 3163199, at *2 (E.D.N.Y. July 26, 2011) (noting that the petitioner’s “desired remedy—a sentence reduction—is not of the type that can be granted in response to [Section 2241] claims regarding conditions of confinement”); Serra v. Terrell, No. 10-CV-03044 (DLI), 2013 WL 5522850, at * 1 (E.D.N.Y. Sept. 30, 2013) (same).
Courts in other circuits also have held that Section 2241 does not permit release based on conditions of confinement. See, e.g., United States v. Washington, 549 F.3d 905, 917 (3d Cir. 2008) (holding that a court has jurisdiction to alter a sentence only as specifically permitted by statute); Wright v. Terrell, No. 10-CV-3492 (PGS), 2011 WL 5117851, at *2 (D.N.J. Oct. 26, 2011) (rejecting Section 2241 petition by a petitioner who claimed not to challenge the imposition of his sentence upon finding that “[p]etitioner is actually seeking a modification of his sentence based on the conditions of his confinement at the MDC, which is not cognizable in a habeas petition under § 2241”); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (holding that “[i]f an inmate establishe[s] that his medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for proper treatment, or to award him damages; release from custody is not an option” (citation omitted)); Gomez v. United States, 899 F.2d 1124 (11th Cir. 1990) (same); Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (same); Cook v. Hanberry, 596 F.2d 658, 660 (5th Cir. 1979) (same). Indeed, “[a] court may not modify a term of imprisonment once it has been imposed except pursuant to statute.” Gotti, 2020 WL 497987, at *6 (noting that “[a] court is not required to reduce a sentence on compassionate release grounds, even if a prisoner qualifies for such reduction because of his medical condition”).
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Therefore, this Court should not permit Petitioners to improperly seek a reduction in their criminal sentences via a Section 2241 petition, based on the allegedly unconstitutional conditions of confinement at the FCI Danbury. Further, Petitioners are not entitled to have this Court release or transfer to home confinement more than 984 inmates, or any subset thereof, from FCI Danbury. There are specific legal avenues for consideration of the release or transfer of these inmates. Those include home confinement and compassionate release.
Regarding home confinement, the BOP may place a prisoner in home confinement only for the lesser of 10 percent of the term of imprisonment or 6 months.11 See 18 U.S.C. § 3624(c)(2). Under the CARES Act, “if the Attorney General finds that emergency conditions will materially affect” the BOP’s functioning, the BOP Director may “lengthen the maximum amount of time for which [he] is authorized to place a prisoner in home confinement” under 18 U.S.C. § 3624(c)(2). Pub. L. No. 116-136, § 12003(b)(2) (2020). On April 3, 2020, the Attorney General authorized the Director of the Bureau to immediately maximize appropriate transfers to home confinement of all appropriate inmates held in BOP facilities. See April 3, 2020 Memo from the Attorney General, “Increasing Use of Home Confinement at Institutions Most Affected by COVID-19”.
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); 18 U.S.C. § 3624(c)(4). 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. 18 U.S.C. §
11 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. See 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541.
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3621(b). Some offenses, such as sex offenses, will render an inmate ineligible for home confinement. Id. Notably, regarding compassionate release, neither the BOP nor this Court has the authority to provide inmates with “early release.” A reduction of an inmate’s federal sentence can only be accomplished by the inmate’s sentencing judge. However, upon an inmate’s request, the Director of the BOP may make a motion to an inmate’s sentencing judge to reduce a term of imprisonment under 18 U.S.C. § 3582(c)(1)(A).12
Importantly, while the BOP is processing these compassionate release requests as expeditiously as possible, the statute gives the BOP 30 days to evaluate them 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. Here, as noted above, Judge Skretny denied Petitioner Cassidy’s motion for compassionate release for failure to exhaust, and Petitioner Collier’s motion for compassionate release is still pending before her sentencing judge. Petitioners MartinezBrooks and Madore have both chosen not to file motions seeking compassionate release.
By filing this action, the Petitioners are not only trying to circumvent the process, but are also trying to create a mechanism through which any unfavorable ruling from a sentencing judge can be challenged in another district court. Petitioners’ efforts to forum shop or create new forums would have the result of depriving sentencing judges from the ability to maintain control over the inmate sentences they have issued.
By seeking release to home confinement through this civil action, Petitioners also are essentially seeking to divest the BOP of its statutory and regulatory discretion as to which inmates should be placed in home confinement. Recently, a Louisiana district court dismissed a Section
12 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).
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2241 habeas petition with prejudice brought by six petitioners in a federal prison, who also sought class certification on behalf of a prospective class and sub-class of inmates vulnerable to the COVID-19 threat, ruling that the Court lacked subject matter jurisdiction “to order BOP” to release inmates to a “lesser form of detention” because “[s]uch a designation and/or classification falls squarely within BOP’s authority and outside the purview of this Court.” See Livas v. Myers, No. 20-CV-422 (TAD)(KK), 2020 WL 1939583, at *8 (W.D. La. Apr. 22, 2020). The Court succinctly added, “[t]o rule otherwise would make this Court “a de facto ‘super warden’” of the BOP facility. Id. at *8. See also, Marlowe v. LeBlanc, --- Fed. Appx. ---, 2020 WL 2043425 (5th Cir. Apr. 27, 2020) (staying an injunction issued by the United States District Court for the Middle District of Louisiana requiring Defendants to comply with their own internal policies and submit a plan to ensure proper social distancing and hygiene practices); Nellson v. Barnhart, 2020 WL 1890670 (D. Colo. Apr. 16, 2020) (denying a TRO motion as Petitioner failed to exhaust administrative remedies and, finding that, even if he had, the BOP has already implemented the relief for safety measures that he requested).
Petitioners should not be granted such sweeping and unprecedented relief when existing administrative and statutory proceedings can afford them the relief they seek, if appropriate, as evidenced by the numerous motions for compassionate release filed with, and adjudicated by, the United States District Court for the District of Connecticut, as well as the number of administrative reviews completed by the BOP with respect to inmates at FCI Danbury. See e.g., United States v. Almontes, No. 3:05-CR-58 (SRU), 2020 WL 1812713 (D. Conn. Apr. 9, 2020) (granting motion for compassionate release by FCI Danbury inmate in need of spinal surgery, concluding “extraordinary and compelling reasons warrant a reduction in Almonte’s sentence”); United States v. Gagne, No. 3:18-CR-242 (VLB), 2020 WL 1640152 (D. Conn. Apr. 2, 2020) (denying motion
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for compassionate relief by FCI Danbury inmate with multiple sclerosis and increased risk of complications posed by COVID-19, concluding that her medical condition is not extraordinary and compelling); United States v. Hill, No. 3:19-CR-38 (JAM), Doc. 48 (D. Conn. Apr. 28, 2020) (denying motion for compassionate release by FCI Danbury inmate for failure to exhaust administrative remedies); United States v. Gilliam, No. 3:15-CR-63 (JCH), Doc. 119 (D. Conn. Apr. 27, 2020) (denying motion for compassionate release by USP Hazelton inmate for failure to exhaust administrative remedies, failure to present extraordinary and compelling reasons for release, and because petitioner poses a danger to society); United States v. Rosado et al., No. 3:06CR-18 (AVC), Doc. 376 (D. Conn. Apr. 24, 2020) (granting motion for compassionate release by Wyatt inmate with asthma who had served term above the statutory maximum); United States v. Salvagno et al., No. 5:02-CR-51 (LEK), Doc. 1166 (D. Conn. Apr. 23, 2020) (granting motion for compassionate release by FCI Danbury inmate with hypertension and need to care for son with multiple serious medical conditions); United States v. Rubiera-Herrera et al., No. 3:19-CR-123 (JAM), Doc. 446 (D. Conn. Apr. 22, 2020) (denying motion for compassionate release by Wyatt inmate for failure to exhaust administrative remedies, “the exhaustion requirement of section 3582(c)(1)(A) is mandatory and that a court does not have authority to make equitable exceptions”); United States v. Sakelarakis, No. 3:18-CR-248 (JCH), Doc. 76 (D. Conn. Apr. 22, 2020) (denying motion for compassionate release by FCI Danbury inmate for failure to exhaust administrative remedies and failure to present extraordinary and compelling reason for release); United States v. Crispin, No. 3:19-CR-171 (VLB), Doc. 56 (D. Conn. Apr. 21, 2020) (denying motion for compassionate release by FMC Devens inmate with cardiovascular disease and a blood clotting disorder maintained on blood thinners, and a shunt in his brain creating an elevated risk of infection, severe complications, and death from COVID-19); Brady v. Warden et al., No. 3:20-
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CV-510 (MPS), Doc. 7 (D. Conn. Apr. 20, 2020) (denying motion for compassionate release by FCI Danbury inmate for, inter alia, failure to exhaust administrative remedies); Serfass v. Warden, No. 3:20-CV-513 (MPS), Doc. 5 (D. Conn. Apr. 20, 2020) (denying motion for compassionate relief for failure to exhaust administrative remedies and failure to demonstrate that “she faces a heightened risk of serious illness from COVID-19 and that the measures taken by the Bureau of Prisons are inadequate to alleviate this risk”); United States v. Coston, No. 3:16-CR-127 (SRU), Doc. 98 (D. Conn. Apr. 16, 2020) (granting motion for compassionate release by FCI Danbury inmate with chronic asthma, history of pneumonia, and risk of developing Chronic Obstructive Pulmonary Disease); United States v. Carpenter et al., No. 3:13-CR-226 (RNC), Doc. 525 (D. Conn. Apr. 10, 2020) (denying motion for compassionate release by MDC Brooklyn inmate with diabetes, noting “the Second Circuit recently declined to release the defendant to home confinement finding that his age and medical condition do not distinguish him from other prisoners in terms of the risk posed by the coronavirus”); United States v. Filyaw et al., No. 3:18-CR-81 (SRU), Doc. 1029 (D. Conn. Apr. 6, 2020) (granting motion for compassionate release by MDC Brooklyn inmate with numerous health problems serving six month sentence and scheduled to be released May 3, 2020, “The granting of this motion reflects the extraordinary circumstances presented by the coronavirus pandemic as well as Brito’s weakened health condition. The Court appreciates the government’s recognition that Brito is a fully qualified candidate for release.”). See also Exhibit F.
Petitioners try to circumvent this established law and process by relying on the concept of “enlargement” of a sentence to construe the relief requested here as falling within Section 2241. But “enlargement” is not a cognizable remedy in this Court. Petitioners and their declarant Professor Judith Resnik cite to inapposite cases holding that federal courts have “inherent
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authority” to grant bail as interim relief pending habeas litigation. See, e.g., Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir. 1978); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (explicitly reaffirming Ostrer and its progeny). But this line of cases only applies to prisoners whose habeas petitions allege a defect in their convictions or sentences that, if granted, would entitle them to a release from custody. See Ostrer, 584 F.2d at 596 n.1 (interim bail may be available to a habeas petitioner “contesting the legality of his custody,” emphasis added); U.S. ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371, 374 (2d Cir. 1968) (“Generally habeas corpus is available only to a petitioner who is entitled to release from unlawful restraint . . . .”); Stepney v. Lopes, 597 F. Supp. 11, 13 (D. Conn. 1984) (interim bail in the postconviction context may be granted for habeas petitions challenging “the illegality of the petitioner’s custodial status, presumably from its inception”).
Here, Petitioners’ theory of relief is not that there is a defect in their convictions or sentences or that they are entitled to release from the 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. Therefore, this not a case in which bail is appropriate under Ostrer/Mapp; and there is simply no authority for this Court to craft a new provisional remedy to “enlarge” the custody of convicts serving sentences to which no collateral challenge is pending before it. See also Gomez, 899 F.2d at 1125-27 (bail pending Eighth Amendment habeas challenge to conditions of confinement was improper because “even if Gomez prevails on his habeas petition, he would not be entitled to be released from prison” and he was not allowed “more relief on a preliminary basis than he would be entitled to if he ultimately prevail[ed] on his constitutional claims”).
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Moreover, any authority this Court might have to “enlarge” Petitioners’ custody would be circumscribed by 18 U.S.C. § 3626(a)(2) of the PLRA, which provides that, in civil action challenging conditions of confinement, 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); see also Jones v. Smith, 720 F.3d 142, 145 n. 3 (2d Cir. 2013) (assuming that the PLRA applies to conditions of confinement claims brought under Section 2241). Clearly, a mass release of all FCI Danbury inmates, or a subclass thereof including Petitioners, to home confinement is one of the least narrowly drawn and most intrusive means imaginable. Petitioners have not demonstrated, as they must, that such a mass release is necessary to curtail any heightened risk of COVID-19 unique to FCI Danbury. Indeed, even in the one case the government is aware of that–we submit incorrectly– endorsed Professor Resnick’s “enlargement” theory, Wilson v. Williams, No. 20-CV-00794, 2020 WL 1940882, *4 (N.D. Ohio April 22, 2020) (appeal pending), the court declined to order a mass release of inmates to home confinement, and instead ordered only that the BOP, not the Court and not a Special Master, evaluate each member of a medically vulnerable subclass’s eligibility for release or transfer to another BOP facility. Id. at *10-11 (emphasis added).
Even if the Court determines that it has the inherent authority to grant mass “enlargement” of custody during the pendency of this action pursuant to Ostrer/Mapp—notwithstanding Section 3626(a)(2)’s restrictions on provisional relief—Petitioners have not met the stringent standard for such relief. The Second Circuit has explained that “a habeas petitioner should be granted bail only in unusual cases,” and the “standard for bail pending habeas litigation is a difficult one to meet: The petitioner must demonstrate that the habeas petition raise[s] substantial claims and that extraordinary circumstances exist[] that make the grant of bail necessary to make the habeas
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remedy effective.” Mapp, 241 F.3d at 226 (internal citations and quotation marks omitted); see also Rado v. Meachum, 699 F. Supp. 25, 26-27 (D. Conn. 1988) (holding that the relevant factors are whether (1) “substantial claims” are set forth in the petition; (2) there is a “demonstrated likelihood the petition will prevail”; and (3) there are “extraordinary circumstances” attending the petitioner’s situation which would “require” the grant in order to make the writ of habeas corpus “effective,” presumably if granted) (citations omitted).
Petitioners have not demonstrated that this is a “special case” warranting the extraordinary relief of interim release. Mapp, 241 F.3d at 226. First, for all the reasons discussed in Section VII, supra, Petitioners fail to meet the first requirement because they have not demonstrated that they raise “substantial claims” in their habeas petition, that is, that they have “a substantial likelihood . . . of succeeding on the merits of” their petition. See Ancona v. Lantz, No. 3:05-CV363 (MRK), 2005 WL 839655 (D. Conn. April 8, 2005) (quoting Mapp, 241 F.3d at 230 n.13). Petitioners also cannot meet the second, independent requirement that they demonstrate “that extraordinary circumstances exist[] that make the grant of bail necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226 (emphasis added); see also Skakel v. Murphy, No. 3:07CV-1625 (PCD), 2009 WL 2253175, *5 (D. Conn. July 27, 2009). The relief Petitioners seek is either release to home confinement or changes in the conditions at FCI Danbury. Petitioners have not demonstrated why a grant of interim release to home confinement (essentially, the ultimate relief they hope to obtain in their petition) is necessary to make the remedy—release to home confinement or changes of conditions at FCI Danbury—effective. See e.g., Rosemond v. Decker, No. 19-cv-9657 (NSR-LMS), 2020 WL 1876318, at *2 (S.D.N.Y. Apr. 14, 2020) (denying emergency relief from custody under Mapp based on a serious medical condition in the face of the COVID-19 pandemic because interim release was not necessary to make the habeas remedy–a
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constitutionally adequate bond hearing–effective). 1. Res Judicata Bars Petitioners’ Immediate Release
Res judicata also bars a plaintiff from relitigating the same issues that were or could have been raised in a prior action. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); Freeman v. Sikorsky Aircraft Corp., 151 F. App’x. 91, 92 (2d Cir. 2005) (affirming dismissal of an action as barred by res judicata because claim had already been decided on the merits and action was raising the precise issues, arising from same events, as raised in petitioner’s first complaint); Staffer v. Bouchard Transp. Co., Inc., 878 F.2d 638, 643 (2d Cir. 1989) (explaining that “[r]es judicata, or claim preclusion, bars the revival of claims that already have been litigated” and adding that “[r]es judicata can also operate to bar claims that were not originally asserted.”)). “The doctrine of res judicata, or claim preclusion, holds that ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’” Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir. 2017). The purpose of the res judicata bar “is based on the requirement that the plaintiff must bring all claims at once against the same defendant relating to the same transaction or event.” Robinson v. Purcell Constr. Corp., 647 F. App’x 29, 30 (2d Cir. 2016) (quotation marks omitted).
Petitioners Cassidy and Collier filed motions for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), citing the same allegedly unconstitutional conditions of confinement in their Section 3582 motions as set forth in the Petition. See Exhibits B and C. Petitioner Cassidy’s sentencing judge denied his Section 3582 motion without prejudice and invited him to refile the motion once he properly exhausted administrative remedies. Exhibit B at Docket No. 61. To the extent Petitioner Cassidy seeks immediate release from FCI Danbury, Judge Skretny’s ruling precludes Petitioner Cassidy’s claim here for immediate release. Petitioner Cassidy does not simply get a “do-over” in the District of Connecticut after his same claim was rejected by Judge
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Skretny in the Western District of New York. Instead, as indicated by Judge Skretny, Petitioner Cassidy can refile his motion for compassionate release after exhausting administrative remedies. In fact, on May 4, 2020, Petitioner Cassidy did exactly as instructed. Id. at Docket No. 62. A hearing on this motion is set for May 6, 2020 in the Western District of New York. Id. at Docket No. 63.
Further, Petitioner Collier’s compassionate release application remains pending in the Western District of New York, before her sentencing judge, who has the statutory authority to grant her release. See Exhibit C at Docket No. 65. This Court has no analogous authority.
2. Section 3626 Precludes the Remedy Requested By Petitioners Petitioners request habeas relief and the release of thousands, if not hundreds, of inmates from FCI Danbury. However, the PLRA, 18 U.S.C. § 3626, titled “Appropriate remedies with respect to prison conditions,” places strict limits on Courts’ ability to order the release of inmates “in any civil action with respect to prison conditions,” and precludes a single district judge from doing so. Id. § 3626(a)(3)(A)-(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 lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 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 Section 3626, 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
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only by a three-judge court,” id. § 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.” Id. § 3626(a)(3)(A).
Congress enacted the PLRA “to oust the federal judiciary from day-to-day prison management.” Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997); see also Benjamin v. Jacobson, 172 F.3d 144, 182 (2d Cir. 1999) (en banc) (Calabresi, J., concurring) (“The in banc majority argues at length that Congress meant to get the federal courts out of the business of running jails, and it cites any number of congressional statements to that effect.”). “Congress intended the PLRA to revive the hands-off doctrine,” which was “a rule of judicial quiescence derived from federalism and separation of powers concerns.” Gilmore v. California, 220 F.3d 987, 991, 997 (9th Cir. 2000). “Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” Brown 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)). The PLRA’s “requirements ensure that the ‘last resort remedy’ of a population limit is not imposed ‘as a first step.’” Plata, 563 U.S. 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
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concern.” Plata, 563 U.S. at 501. Insofar as the Petitioners in this case are seeking release as a remedy for the allegedly
unconstitutional conditions at FCI Danbury—either for themselves or for their putative class members—Section 3626 prevents this Court from granting that relief. Under Section 3626, “[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.” Plata, 563 U.S. at 500 (citing 18 U.S.C. § 3626(a)); 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 “crowding is the primary cause of the violation” and “no other relief will remedy [it].” Id. § 3626(a)(3)(E)(i)-(ii).
Here, there can be no dispute that the instant lawsuit is a “civil action with respect to prison conditions” governed by Section 3626, which 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.” 18 U.S.C. § 3626(g)(2).13
13 One court recently reached this conclusion in an identical case. In Money v. Pritzker, Nos. 20CV-2093 & 20-CV-2094, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020), inmates from various Illinois
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Section 3626 strictly limits the relief that this Court may grant and precludes the Court
from releasing inmates from FCI Danbury as requested by Petitioners. Id. § 3626(a)(3)(B).
C. Petitioners Have Failed to Exhaust Administrative Remedies for All Remaining Remedies Sought in Their Petition
In addition to seeking release from custody or home confinement, Petitioners
requested the Court to order additional remedies (“safety requests”) which include:
• Ensure that incarcerated individuals can remain six feet apart to practice social distancing in compliance with CDC Guidance;
• Ensure that each incarcerated individual receives a free and adequate personal supply of: hand soap sufficient to permit frequent hand washing, paper towels, facial tissues, cleaning implements such as sponges or brushes, and disinfectant products that are effective against COVID-19;
• Ensure that all individuals have access to hand sanitizer containing at least 60% alcohol;
• Provide daily access to showers and clean laundry, including clean towels after each shower;
• Require that all FCI Danbury staff wear PPE consistent with the CDC Guidance, including masks and gloves, when interacting with visitors and incarcerated individuals or when touching surfaces in common areas;
• Provide an anonymous mechanism for incarcerated individuals to report staff who violate these guidelines so that appropriate corrective action may be taken;
• Take each incarcerated person’s temperature daily (with a properly disinfected and accurate thermometer) to identify potential COVID-19 infections;
• Assess each incarcerated individual daily through questioning to identify potential COVID-19 infections;
• Conduct immediate testing for anyone displaying known symptoms of COVID-19;
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. See also Jones v. Smith, 720 F.3d at 145, n. 3 (assuming that the PLRA applies to conditions of confinement habeas claims brought under Section 2241).
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• Immediately provide clean masks for all individuals who display or report potential COVID-19 symptoms until they can be evaluated by a qualified medical professional or placed in non-punitive quarantine and ensure the masks are properly laundered with replacements as necessary;
• Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, commissary, phone and video visitation with loved ones, communication with counsel, and personal property;
• Clean and disinfect frequently touched surfaces with disinfectant products effective against the virus that causes COVID-19 (at the manufacturer’s recommended concentration), as well as surfaces in common areas, every two hours during waking hours, and at least once during the night;
• Ensure incarcerated people are provided guidance on how to protect themselves from COVID-19 and reduce COVID-19 transmission;
• Assure incarcerated people are told that they will not be retaliated against for reporting COVID-19 symptoms;
• Respond to all emergency (as defined by the medical community)requests for medical attention within an hour;
• Provide incarcerated individuals with sufficient and effective cleaning supplies free of charge so that they may clean frequently touched items, such as phones, before use;
• Provide frequent communication to all incarcerated individuals regarding COVID-19, measures taken to reduce the risk of infection, best practices for incarcerated people to avoid infection, and any changes in policies or practices;
• Craft a mechanism to ensure compliance through the appointment of an independent monitor with medical expertise to ensure compliance with these conditions, and provide the monitor with unfettered access to medical units, confidential communication with detained individuals in and out of quarantine, and surveillance video of public areas of the facilities.
Petition, pp. 67-70. The Petitioners have made no effort to present their conditions of confinement
safety request claims in accordance with the Prisoner Litigation Reform Act. Decl. ¶ 97.
“[F]ederal prisoners must exhaust their administrative remedies prior to filing a petition for
habeas relief.” Carmona, 243 F.3d at 634. Only when “legitimate circumstances beyond the
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prisoner’s control preclude him from fully pursuing his administrative remedies” can failure to exhaust be forgiven. Id. In other words, Petitioners can only bring a habeas corpus motion without having exhausted his administrative remedies if he can demonstrate that there was an external cause of his failure and that this cause resulted in prejudice. Id.
In order to exhaust their administrative remedies, federal inmates must proceed through the BOP’s four-step administrative remedy procedure. See 28 C.F.R. § 542, Subpart B;14 see also Barber v. Perdue, No. 9:11–CV–0127 (NAM/DEP), 2012 WL 5996342, at *4 (N.D.N.Y. Nov. 9, 2012) report and recommendation adopted by 2012 WL 5996866 (N.D.N.Y. Nov. 30, 2012). To complete the first step, inmates must present any issue regarding their confinement informally to staff, who must then attempt to resolve the issue. 28 C.F.R. § 542.13(a). Second, if the informal resolution is unsuccessful, the inmate must submit a formal Administrative Remedy Request to the Warden, on a designated form, within twenty days of the event that triggered the complaint. 28 C.F.R. § 542.14(a). Third, the inmate must appeal any dissatisfactory Warden response by filing an appeal with the Regional Director, in this case the NERO and SERO, of the BOP within twenty days of the Warden’s signature of the response. 28 C.F.R. § 542.15(a). Finally, the inmate must appeal the Northeast Regional Director’s negative decision to the Office of General Counsel within thirty calendar days of the NERO or SERO’s signature of the initial appeal. Id. Only upon completion of all four of these steps can the inmate have successfully exhausted his administrative remedies. 28 C.F.R. §§ 542.14–542.15. No complaint raised through the administrative remedy process is considered fully exhausted until considered by the Bureau of Prisons’ Office of General Counsel. See, 28 C.F.R. §§ 542.14 - 542.15; Strong v. Lappin, 2010 WL 276206 at * 4 (E.D.N.Y.
14 Federal inmates are required to comply with the procedural rules set forth in BOP Program Statement 1330.18, “Administrative Remedy Program”, and as codified at 28 C.F.R. § 542, Subpart B, in order to exhaust the administrative remedy process.
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Jan. 15, 2010) (“Until the BOP’s Central Office considers the appeal, no administrative remedy is considered to be fully exhausted.”).
“[T]he Prison Litigation Reform Act (PLRA) exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion, in turn, demands compliance with [a penal institution]’s deadlines and other critical procedural rules.” Id. at 90. Thus, to meet the requirement of proper exhaustion, “a prisoner must file complaints and appeals in the place, and at the time, the prison’s administrative rules require.” Acosta v. U.S. Marshals Serv., 445 F.3d 509, 512 (1st Cir. 2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); Macias v. Zenk, 495 F.3d 37, 43 (2d. Cir. 2007) (holding proper exhaustion requires a plaintiff to procedurally exhaust his claims by “complying with the system’s critical procedural rules”). Exhaustion must be accomplished prior to filing suit, and an inmate who exhausts administrative remedies after a petition is filed cannot save it from dismissal. Stimpson v. Comm’r Correction Office, No. 3:16-CV-520 (SRU), 2017 WL 326314, at *2 (D. Conn. Jan. 23, 2017) (“[c]ompletion of the exhaustion process after a federal action has been filed does not satisfy the exhaustion requirement.”); Harvin v. Chapdelaine, No. 3:16-CV-1616 (VAB), 2016 WL 7197363, at *1 (D. Conn. Dec. 9, 2016) (“Meeting the exhaustion process after a federal action has been filed does not, therefore satisfy the exhaustion requirement.”); Shepherd v. Lempke, 2017 WL 1187859 at *3 (N.D.N.Y. March 30, 2017) (citing Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), abrogated in part on other grounds by Porter v. Nussle, 534 U.S. 516 (2002)); Nellson, 2020 WL 1890670, at *5 (“The Court finds that plaintiff has failed to exhaust his administrative remedies before seeking judicial relief. In reaching this conclusion, the Court does not overlook the risks of COVID-19 at [the BOP facility at issue] or in the prison system generally. But the
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Court may not alter the mandatory requirements of the PLRA for COVID-19 or any other special circumstance.” (citing Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016))).
The Supreme Court has made clear that the exhaustion requirement applies to all suits regarding prison life, Porter 534 U.S. at 532, including when a prisoner seeks injunctive relief, Farmer v. Brennan, 511 U.S. 825, 847 (1994) (in cases seeking injunctive relief to address “current” prison conditions, inmates are not “free to bypass adequate internal prison procedures and bring their health and safety concerns directly to court”). And, it is explicitly mandatory. See Ross, 136 S. Ct. at 1856; see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA.”)
The only exception to the exhaustion requirement is when the administrative remedy process is “unavailable.” Ross, 136 S. Ct. at 1858. In Ross, the Supreme Court outlined just three situations in which a prisoner can show that the administrative remedy process is “unavailable”: (1) “when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates,” such as in the hypothetical situation in which “a prison handbook directs inmates to submit their grievances to a particular administrative office—but in practice that office disclaims the capacity to consider those petitions”; (2) when “some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it”; and (3) “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60.
The PLRA’s exhaustion requirement applies to habeas corpus proceedings. Gonzalez v. Perrill, 919 F.2d 1 (2d Cir. 1990) (“[i]t is well settled that an appellant must exhaust his administrative remedies before seeking habeas corpus relief in the federal courts”); see Rogers v.
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United States, 180 F.3d 349, 357-58 (1st Cir. 1999) (“[o]nce the administrative remedies under the Bureau of Prison’s Administrative Remedies Program are exhausted . . . prisoners may then seek judicial review of the request for designation by filing a habeas petition under 28 U.S.C. § 2241.”); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996) (failure to pursue administrative remedies barred judicial review of loss of inmate’s good time credits); United States v. Flanagan, 868 F.2d 1544, 1545 (11th Cir. 1989) (shortening of sentence is in the first instance an administrative, not a judicial function); Sayyah v. Farquharson, 382 F.3d 20, 24 (1st Cir. 2004) (common law exhaustion doctrine “almost universally” premises judicial review upon the prior exhaustion of administrative remedies).
Although Petitioners in this habeas make an unsupported allegation that the administrative process at FCI Danbury was suspended, see Petition ¶ 49, this is untrue. The fact that the all Petitioners, except for Petitioner Madore, have filed administrative claims for compassionate release under 18 U.S.C. § 3252 belies their current claims of unavailability of the administrative process. Likewise, the fact that Petitioner Cassidy’s request was denied on April 22, 2020 and Petitioner Collier’s request was sent back to her to be corrected, evidences that the administrative process is operational. Additionally, a review of SENTRY (the BOP’s computerized inmate management program which contains, among other things, a record of every grievance filed by any inmate throughout the agency) shows that inmates at FCI Danbury have filed 48 formal written Administrative Remedy Requests with the Warden’s office between the dates March 1, 2020, and May 2, 2020. Decl. at ¶ 96. 13 of these Administrative Remedy Requests were requesting compassionate release or home confinement. Id. As a matter of comparison, SENTRY shows the Warden’s office received 61 formal written Administrative Remedy Requests during this same time period in 2019; 37 formal written Administrative Remedy Requests during this same time
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period in 2018; and 33 formal written Administrative Remedy Requests during this same time period in 2017. Id. Petitioners are also very aware of how to properly submit an Administrative Remedy Request. A review of SENTRY shows that Petitioner Collier’s most recent grievance was a filing made with the BOP’s Northeast Regional Office on March 9, 2020, appealing an access to exercise equipment complaint she filed with the Warden on January 10, 2020. Id. at ¶ 97. Petitioner Martinez-Brooks’ most recent grievance was filed in August, 2019, at which time she was appealing the denial of a lower bunk pass. Id. Petitioner Cassidy’s most recent grievance was filed during a prior term of incarceration, when on September 7, 2007 while incarcerated at FCI Fort Dix New Jersey, he requested a transfer to a different institution. Id. Inmate Madore has never filed a grievance regarding any matter whatsoever while in the BOP custody. Id. An additional review of SENTRY shows that Petitioners have not filed any grievances since the COVID emergency began. Id.
While Petitioners might attempt to argue that seeking safety measures through the administrative process would be futile, there is also no evidence that is true. Additionally, such an argument would ignore that the Supreme Court defines “available” relief through the administrative process as some—not all—relief that the inmate seeks. Total and immediate relief is not the standard for exhaustion; “the possibility of some relief” is. Ross, 136 S. Ct. at 1859.
Likewise, Petitioners do not, and cannot, argue that requiring them to exhaust administrative remedies with respect to these safety requests would jeopardize their well-being. Doing so, would completely overlook the fact that the BOP regulations provide for an expedited response to administrative requests “determined to be of an emergency nature which threatens the inmate’s immediate health or welfare.” 28 C.F.R. § 542.18.
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Petitioners do not assert that they engaged in the administrative process with respect to the safety requests sought as a remedy in this Petition. Nor do Petitioners assert that the process could not potentially provide any relevant relief whatsoever. In this case, the COVID-19 pandemic has rapidly evolved over the course of just the past few weeks, and the BOP’s response has evolved with it. Most of the allegations in the Petition do not reflect the current conditions at FCI Danbury. Had Petitioners raised their concerns directly with the institution, the BOP could have corrected Petitioners’ mistaken impressions regarding the actions FCI Danbury is taking to address COVID19, and this litigation may have been avoided. The rapidly changing nature of this pandemic thus favors adherence to the administrative framework, and Petitioners’ request for an order with respect to the safety measures outlined above, and contained on pages 67-70 of the Petition, should be denied and dismissed.
D. This Court Lacks Jurisdiction to Appoint a Special Master to Essentially Sit as an Article III Judge
Petitioners ask this Court to “[a]ppoint[] a special master pursuant to Fed. R. Civ. P. 63 [sic] or an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding the number of incarcerated people that FCI Danbury can house consistent with CDC Guidance on best social distancing and hygiene practices to prevent the spread of COVID-19.” Petition (Prayer for Relief) ¶ f.15 Petitioners’ request must be soundly rejected.
First, the Court cannot give a Special Master powers that even it does not have. See Livas, 2020 WL 1939583, at *8 (denying habeas petition seeking release of inmates due to COVID-19 as the Court cannot serve as “a de facto ‘super’ warden” of the BOP facility). It is well-established that federal courts are “ill equipped” to deal with problems of prison administration. See Turner
15 Respondents assume Petitioners actually meant appointment of a Special Master pursuant to Fed. R. Civ. P. Rule 53, not 63 as alleged.
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v. Safley, 482 U.S. 78, 84 (1987) (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)); Benjamin, 172 F.3d at 182 (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.”); “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner, 482 U.S. at 84-85 (“Prison administration is [] a task that has been committed to the responsibility of [the legislative and executive branches], and separation of powers concerns counsel a policy of judicial restraint.”). Moreover, the PLRA restricts the Court’s ability to appoint a Special Master for the purposes of compliance with the Eighth Amendment. Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003) (“The PLRA has substantially limited the capacity of federal courts to appoint special masters to oversee prison conditions, specifically in order to ensure compliance with the Eighth Amendment.”). Finally, given the fluid nature this medical crisis, the official guidance, and the conditions at FCI Danbury, BOP is in a better position to respond and modify conditions as necessary; any report by a Special Master risks being outdated by the time the parties dispute it and the Court makes findings.
Even if the Court had the authority to appoint a Special Master, no Special Master would have the powers conjured up by the Petitioners. In short, a Special Master does not, and indeed, cannot, possess the attributes that Article III of the Constitution demand here. “The role of the Special Master is not meant to supplant the role of the court.” Board of Governors of the Federal Reserve System v. Pharaon, 140 F.R.D. 642, 649 (S.D.N.Y. 1991); Idan Comput., Ltd. v. Intelepix, LLC, No. CV-09-4849 (SJF) (ARL), 2010 WL 3516167, at *3 (E.D.N.Y. Aug. 27, 2010)
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(appointment of a special master is the exception, not the rule) (citations omitted). The Petitioners ask the Court to appoint a Special Master to make suggestions about how FCI Danbury should be run in light of the pandemic, which would inevitably place the Court, should it wish to act on those suggestions, in the position of a “super warden.” Holleman v. Zatecky, 951 F.3d 873, 880 (7th Cir. 2020) (declining to interfere with prison transfer because “[w]e are not super-wardens who sit to critique the efficacy or wisdom of prison management choices.”).
Indeed, a Special Master would be ill-equipped to take over the authority (let alone have the collective depth of knowledge and experience) of BOP officials to determine how best to manage their facilities in light of an evolving national pandemic. See In re Bituminous Coal Operators’ Ass’n, 949 F.2d 1165, 1168 (D.C. Cir. 1991) (granting writ of mandamus against a district judge because the judge “has no discretion to impose on parties against their will ‘a surrogate judge,’ a substitute from the private bar charged with responsibility for adjudication of the case.”); Stauble v. Warrob, Inc., 977 F.2d 690, 695 (1st Cir. 1992) (“Because Rule 53 cannot retreat from what Article III requires, a master cannot supplant the district judge.”). Indeed, it is long established that “Article III bars a district court ‘of its own motion, or upon the request of one party’ from ‘abdicat[ing] its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers.’” Stauble, 977 F.2d at 695 (quotation omitted).
Finally, Petitioners fail to address Rule 53(a)’s restrictions on the appointment of a Special Master. See Fed. R. Civ. P. 53. For example, Petitioners make no attempt to explain why criminal defendants cannot “effectively and timely” have their claims addressed by the “available district judge or magistrate judge of the district.” Fed. R. Civ. P. 53(a)(1)(C). Indeed, incarcerated criminal defendants have already raised their COVID-19 concerns in other cases in this district. See Section VI.B., infra. The variation in the results of these cases demonstrates that there is a
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functioning system in place to review and make individualized determinations based on specific facts. The Petitioners fail to point to any decision (and undersigned counsel are unaware of any) where a district court has held that it was unable to address a defendant’s motion in an effective or timely manner, which establishes that a Special Master is not warranted.
Additionally, as Respondents do not consent to the appointment of a Special Master, the Court should not take the unusual step of appointing one absent such consent. See Wasley Prod., Inc. v. Bulakites, No. 3:03-CV-383 (MRK)(WIG), No. 3:03-CV-1790 (MRK)(WIG), 2006 WL 3834240, at *11 (D. Conn. May 31, 2006) (it is “impermissible to refer fundamental issues of liability to a special master over the objection of one or more parties”). Accordingly, Petitioners’ request for appointment of a Special Master should be denied. VII. EVEN IF THE COURT HAD JURISDICTION, PETITIONERS’ CLAIMS ARE
SUBJECT TO DISMISSAL Even if the Court had jurisdiction (which Respondents submit it does not, as explained above), Petitioners’ claims are subject to dismissal under Fed. R. Civ. P. 12(b)(6). A. Applicable “Deliberate Indifference” Standard The Eighth Amendment protects against the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To satisfy the Eighth Amendment standards, prison officials “must provide humane conditions of confinement,” specifically they “must ensure that inmates receive adequate food, clothing, shelter, and medical care.” Farmer, 511 U.S. at 832. Inmates alleging Eighth Amendment violations based on unsafe prison conditions must demonstrate that prison officials were deliberately indifferent to their health or safety by subjecting them to a substantial risk of serious harm. See Farmer, 511 U.S. at 834. Prison officials display a deliberate indifference to an inmate’s well-being when they consciously disregard an excessive risk of harm to the inmate’s health or safety. Id. at 838-40. It is “only ‘the unnecessary and wanton
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infliction of pain’ . . . [which] constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)).
“[I]f a particular condition or restriction . . . is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’” Bell v. Wolfish, 441 U.S. 520, 539 (1979). “[T]he effective management of the detention facility . . . is a valid objective that may justify imposition of conditions” that are discomforting and restrictive, without the inference that such restrictions are intended as punishment. See Bell, 441 U.S. at 540. Moreover, “[it] is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Wilson v. Seiter, 501 U.S. 294, 299 (1991).
“[A] prison official violates the Eighth Amendment only when two requirements are met”—both an objective and a subjective component. See Farmer, 511 U.S. at 834. First, the objective component of an Eighth Amendment claim requires that the deprivation must be “sufficiently serious.” Farmer, 511 U.S. at 833. “[O]nly those deprivations denying ‘the minimal civilized measure of life’s necessities’ . . . are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298 (citing 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. See Farmer, 511 U.S. at 834. “[T]he alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks and citation omitted).
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Second, the subjective component relates to the defendant’s state of mind, and requires deliberate indifference. See Farmer, 511 U.S. at 834. “[O]nly the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Id. (quotation omitted). The subjective prong or second requirement that must be shown before an Eighth Amendment violation can be found is that the prison official must have a “sufficiently culpable state of mind.” Id. at 833; Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (requiring “a sufficiently culpable state of mind.”) (citing Wilson, 501 U.S. at 300). “To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety.” Whitley, 475 U.S. at 319. As the Supreme Court explained “[i]n prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834 (quotation omitted). Thus, to establish a violation of the Eighth Amendment, the inmate must show that prison officials “know[s] of and disregard[s] an excessive risk to inmate health or safety.” Id. at 837 (emphasis added).
To prove the second element, Petitioners must show that “the charged official act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm will result. . . . The reckless official need not desire to cause such harm or be aware that such harm will surely or almost certainly result. Rather, proof of awareness of a substantial risk of the harm suffices.” Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 835-37, 842).
A showing of the subjective “deliberate indifference” element “requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.” Hathaway, 37 F.3d at 66 (citing Farmer, 511 U.S. at 835). That is, the “deliberate indifference” prong requires Petitioners to show that a prison official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn
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that a substantial risk of serious harm exists, and he must also draw the inference.” Hathaway, 37 F.3d at 66 (quoting Farmer, 511 U.S. at 837). As discussed below, Petitioners here cannot establish a constitutional violation.
This Court should assess FCI Danbury’s actions in light of Petitioners’ constitutional claims, but it must not substitute its judgment for that of the BOP. “[I]t is not the district court’s own belief about medical necessity that controls, but what was known and understood by prison officials in crafting their policy.” Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014) (citing Wilson, 501 U.S. at 298). As such, although this Court cannot abdicate its responsibility to ensure that the limits imposed by the Constitution are not ignored, the court does not “sit to substitute its own judgment for that of prison administrators.” Id. at 92.
B. Petitioners are not Subject to an Unreasonable Risk of Harm at FCI Danbury Deliberate indifference does not cover all medical care or all harms, but rather “constitute[s] an unnecessary and wanton infliction of pain or [is] repugnant to the conscience of mankind.” Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). “[O]nly such indifference that can offend ‘evolving standards of decency’” can establish a violation of the Eighth Amendment. See Estelle, 429 U.S. at 105-06. In the context of exposing prisoners to risk of communicable disease, a claim must be dismissed if it does not reach the law’s threshold of a threat that is so severe that it would be “contrary to current standards of decency for anyone to be so exposed.” Helling v. McKinney, 509 U.S. 25, 35 (1993). “[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.” Rhodes, 452 U.S. at 347. “A prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’ a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.” Farmer, 511 U.S. at 844-45. Here, Petitioners cannot establish that they have suffered a “sufficiently serious”
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deprivation. See Wilson, 501 U.S. at 297. To be sure, the spread of COVID-19 within the United
States puts everyone at some degree of risk of getting sick, but the BOP has taken appropriate steps to mitigate those risks throughout its inmate population.16 Since first learning of COVID-19, BOP
has instituted a multi-step action plan and taken extensive measures to mitigate the risks COVID-
19 poses throughout its inmate population, including with respect to the inmate population at FCI
Danbury. As set forth above, those measures include providing inmate and staff education; strict
limitations of movement within FCI Danbury; suspension of most visits to FCI Danbury;
conducting inmate and staff screening; putting into place testing, quarantine, and isolation
procedures in accordance with BOP policy and CDC guidelines; ordering enhanced cleaning and
medical supplies; and taking a number of other preventative measures. Additionally, FCI Danbury
implemented the “modified operations” directive in a number of ways to reduce the spread of
COVID-19 among inmates, including: (1) meals are brought to inmates in their respective housing
dormitories; (2) providing health services within unit for routine medical issues, and allowing only
inmates from the same units, who are sheltering in place together, to be in the same area for medical
visits and pill lines; (3) inmates are all provided masks and are required to wear them, or be subject
to discipline; and (4) extensive cleaning and sanitizing measures are taking place within FCI
Danbury. See Decl. for the extensive list of measures taken by BOP and FCI Danbury.
16 Courts around the country have recently received challenges to detention on the grounds of COVID-19 in the criminal bail context and have recognized the government’s public health efforts, particularly the efforts of the Bureau of Prisons, to address the COVID-19 crisis. See United States v. Martin, No. PWG-19-140-13, 2020 WL 1274857, at *4 (D. Md. Mar. 17, 2020); United States v. Gileno, No. 3:19-CR-161, 2020 WL 1307108, at *4 (D. Conn. Mar. 19, 2020); United States v. Hamilton, No. 19CR-54-01, 2020 WL 1323036, at *2 (E.D.N.Y. Mar. 20, 2020); United States v. Jefferson, No. CCB 19487, 2020 WL 1332011, at *1 (D. Md. Mar. 23, 2020); United States, v. Rollins, No. 19-CR-34S, No. 11CR-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”); United States v. Passley, 2020 WL 1815834, at *4 (E.D.N.Y. Apr. 9, 2020) (balancing defendant’s risk of flight and health concerns and concluding COVID-19 is not a sufficiently compelling circumstance to justify release); Mell v. United States, No. 3:20-CV-2277 (BRM), 2020 WL 1852384, at *1 (D.N.J. Apr. 13, 2020).
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One of the Petitioners’ primary arguments is that inmates cannot effectively “socially distance” within FCI Danbury. See e.g., Pet. Section II, pp. 12-17. What Petitioners fail to recognize is that this situation is also true of many, if not all, of the correctional institutions, both state and federal, nationwide. FCI Danbury has attempted to achieve social distancing by locking down each dormitory so that members of each dormitory only have contact with other members of that dormitory, akin to family units in the general population. While recognizing that these family units are bigger than what one would find in similar family units in the community, this practice has substantially limited exposure. See Hines v. Youssef, No. 1:13-CV-00357 (AWI-JL), 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015) (“Unless there is something about a prisoner’s conditions of confinement that raises the risk of exposure substantially above the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is involuntarily exposed to a risk the society would not tolerate.”). At FCI Danbury, each dormitory is essentially a closed family unit and the BOP separates each unit from other units, visitors, and sick inmates. BOP staff also wear masks and/or PPE and give inmates masks to wear. During movement, which occurs only with their unit, inmates are able to, and are encouraged to, maintain social distancing while in line. And while Petitioners reiterate that they are unable to effectively maintain social distancing in contravention of CDC guidance, although six-foot distancing would “ideally” be followed, the CDC guidance published specifically for prison institutions acknowledges that complete social distancing may not be feasible in jail. https://www.cdc.gov/coronavirus/2019-ncov/community/ correction-detention/guidance-correctional-detention.html (last visited May 2, 2020); Mays v. Dart, –- F. Supp. 3d –-, 2010 WL 1812381, at *10 (N.D. Ill. Apr. 9, 2020).
For these reasons, Petitioners have failed to establish that they are subject to an unreasonable risk of harm, and their constitutional claims must fail.
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C. BOP has not Shown Deliberate Indifference and has Taken Appropriate Measures to Protect the Health of Inmates at FCI Danbury and the Public
Petitioners likewise cannot prove that any officer at FCI Danbury “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. The test is subjective, meaning “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference.” Id. 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, 509 U.S. at 33 (regarding exposure to environmental tobacco smoke). The Second Circuit has delineated the requirements of a conditions-of-confinement claim brought by inmates alleging inadequate medical care. In Charles v. Orange County, the Second Circuit held that “[i]n order to establish a violation of a right to substantive due process, a plaintiff must demonstrate not only government action but also that the government action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Charles, 925 F.3d 73, 85 (2d Cir. 2019) (citation and quotation marks omitted). In particular, an inmate raising a constitutional challenge to the medical care provided in detention must establish “(1) that [the inmate] had a serious medical need . . . and (2) that the Defendants acted with deliberate indifference to such needs.” Id. at 86. To establish deliberate indifference in the context of an inmate’s medical needs, the inmate had to prove that the defendant failed to provide treatment while having actual or constructive knowledge that doing so would pose a substantial risk to the detainee’s health. Id. at 87.
BOP’s significant efforts to mitigate infections at FCI Danbury do not “shock the contemporary conscience” as required for the Petitioners to succeed on their constitutional claims. Id. at 85. “To the contrary, the Bureau of Prison is by all objective accounts responding to the COVID-19 pandemic as any reasonable observer could expect under the circumstances to prevent
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infectious outbreak, protect inmate health, and preserve internal order – all legitimate government aims.” United States v. Villegas, 2020 WL 1649520, at *2 (C.D. Cal. Apr. 3, 2020) (slip op).
The condition complained of here is not the existence of COVID-19, which is not under the control of the BOP, or of FCI Danbury. Rather, the condition complained of is the precautions BOP and FCI Danbury have taken to reduce exposure to or the spread of COVID-19. The BOP and FCI Danbury are acutely aware of the risk that COVID-19 poses to its inmate population and to the public at large, and Respondents can hardly be said to be indifferent, as shown by their actions as set forth above.
In March, when Seattle, Washington was the epicenter of the COVID-19 outbreak, the court noted that “[p]laintiffs 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. C200409 (JRL-MAT), 2020 WL 1304557, at *2 (W.D. Wa. Mar. 19, 2020). Similarly, Petitioners cannot establish that the precautions and care at FCI Danbury are “sure or very likely” to lead to exposure or that that Respondents have been deliberately indifferent to this novel infectious disease which took the nation by storm. The district court in Money, 2020 WL 1820660, reached the same conclusion on similar facts. After finding that prison officials came forward “with a lengthy list of the actions they have taken to protect . . . inmates,” id. at *18, the court recognized that prison officials in that case (like FCI Danbury staff here) “are trying, very hard, to protect inmates against the virus and to treat those who have contracted it.” Id. There is no evidence to “support any suggestion that [prison officials] have turned a kind of blind eye and deaf ear to a known problem that would indicate ‘total unconcern’ for the inmates’ welfare.” Id. (quoting Rosario v. Brown, 670 F.3d 816, 821 (7th Cir. 2012)). Similarly, in United States v. Desage, No. 2:13-CR-00039
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(JAD-VCF), 2020 WL 1904584, at *3 (D. Nev. Apr. 17, 2020), defendant alleged that the BOP’s COVID-19 protections for inmates were insufficient, and that he was at risk of being exposed to the life-threatening virus. In denying his release, the court found such claims to be “hyperbole,” and found that the information the government provided about its plan, procedures and practices in general, and for the defendant in particular, demonstrated a lack of deliberate indifference, and denied defendant’s emergency motion for compassionate release. Id.
In reviewing Petitioners claims, and considering the actions that Respondents have taken, and continue to take, to combat COVID-19 and to keep inmates and staff alike from contracting the virus, this Court should find that Petitioners have failed to demonstrate deliberate indifference, and that Respondents’ actions, in fact, demonstrate a lack of deliberate indifference.
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 Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (“a prisoner does not have the right to choose his medical treatment as long as he receives adequate treatment.”); Victor v. Milicevic, 361 F. App’x 212, 215 (2d Cir. 2010) (fact that a prisoner might prefer different treatment does not give rise to Constitutional violation) (internal quotation marks and citations omitted); 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”); Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (“[A] prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.”). Indeed, a prisoner must prove more than “an inadvertent failure to provide adequate medical care,” Estelle, 429 U.S. at 105, or a mere
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“disagreement[ ] between [himself] and [his] doctors about the proper course of [his] medical treatment,” Kosilek, 774 F.3d at 83. Regarding the latter, it is well established that the Eighth Amendment “does not impose upon prison administrators a duty to provide care . . . of the prisoner’s choosing.” Id. at 82 (citing Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir. 1980)).
In the midst of this extraordinary emergency, “[i]t is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease.” Jacobson v. Comm. of Massachusetts, 197 U.S. 11, 30 (1905). Rather, public health officials are entitled to heightened deference when exercising science-based public health judgment during a public health emergency. See, e.g., United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789, 791 (E.D.N.Y. 1963) (explaining in a habeas matter that “the judgment required is that of a public health officer and not of a lawyer used to insist on positive evidence to support action; their task is to measure risk to the public. They deal in a terrible context and the consequences of mistaken indulgence can be irretrievably tragic.”); Hickox v. Christie, 205 F. Supp. 3d 579, 594 (D.N.J. 2016) (“To permit these constitutional claims to go forward . . . would be a judicial second-guessing of the discretionary judgments of public health officials acting within the scope of their (and not [the court’s]) expertise.”); see also Jacobson, 197 U.S. at 31 (upholding mandatory vaccination law and explaining that such a measure, enacted to protect public health, will not be struck down unless it “has no real or substantial relation to [that goal], or is, beyond all question, a plain, palpable invasion of rights . . .” secured by the Constitution); Bragdon v. Abbot, 524 U.S. 624, 650 (1998) (noting that “the views of public health authorities, such as the U.S. Public Health Service, CDC, and the National Institutes of Health, are of special weight and authority”); Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273, 288 (1987) (recognizing that “courts normally should defer to the reasonable medical judgments of public health officials”).
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Petitioners ask that this Court second-guess the experts at the BOP during an ongoing and
uncertain public health crisis, and immediately release a number of inmates into the general public
or to home confinement. But Petitioners have failed to show that the BOP’s efforts to prevent the
Petitioners’ infections with COVID-19, and its provision of medical care to Petitioners should they become ill, amounts to deliberate indifference to their medical needs.17 Petitioners’ assertions are
overly generalized and fail to recognize many of the implemented policies and procedures
discussed above. The BOP has taken steps to provide all FCI Danbury inmates with adequate
medical care, both with respect to the prevention of infection with COVID-19 as well as the
treatment should they become infected with COVID-19. Petitioners must show that FCI Danbury
is deliberately indifferent to their medical needs as a result of the COVID-19 pandemic. See e.g.,
Charles, 925 F.3d at 85-97. But to the contrary, FCI Danbury has actively responded to the
pandemic and taken steps to prevent its spread and isolate infected inmates. The BOP and FCI
Danbury have not been deliberately indifferent to the needs of FCI Danbury inmates.
17 Multiple courts in this circuit agree and have denied requests for compassionate release and bail applications by inmates housed by the BOP with medical concerns complaining of their conditions of confinement as grounds for release. See, e.g., United States v. Carpenter, No. 19-70, 2020 WL 1909098, at *1 (2d Cir. Mar. 25, 2020) (affirming denial of inmate’s motion for bail so that he can stay isolated at home until the risk of COVID-19 in prison decreases, finding that his “medical situation is not significantly different from that of most inmates.”); United States v. Passley, No. 19 Cr. 534, 2020 WL 1815834, at *1, *4 (E.D.N.Y. Apr. 9, 2020) (denying defendant’s motion seeking a temporary order of pre-trial release on a secured bond, finding that his compromised immune system does not merit release); United States v. Deutsch, No. 18 Cr. 00502, 2020 WL 1694358, at *1 (E.D.N.Y. Apr. 7, 2020) (denying defendant’s motion for temporary release, explaining that defendant “does not have Type 1 or Type 2 diabetes, he does not suffer from any pre-existing respiratory issues, he is young, and his medical condition [-- diabetes --] appears well managed throughout his pretrial detention.”); United States v. Amato, No. 19 Cr. 442 (ILG), Doc. 254 (E.D.N.Y. Mar. 27, 2020) (Court had already determined defendant was a danger to the community and declining to release defendant based on COVID-19 pandemic for 54-year-old who cited poor health and family history); United States v. Lipsky, No. 19 Cr. 203 (NGG) (E.D.N.Y. Mar. 24, 2020), Dkt. Entry dated Apr. 21, 2020 (declining to release defendant, previously detained as a danger to the community, based on general risks of COVID-19 pandemic).
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For the reasons set forth above, Respondents respectfully submit that it is beyond the purview of this Court to second-guess BOP officials’ judgment, and the medical judgments made within the BOP, or for this Court to delve within the daily operation of the BOP or FCI Danbury. In light of all of the measure taken by the BOP, and by FCI Danbury, Petitioners’ claims fail to state an Eighth Amendment claim of deliberate indifference to Petitioners’ medical needs. Without an adequate constitutional violation supported by the pleadings, Petitioners’ claims cannot withstand judgment. Thus, this Court should deny the Petition, and dismiss Petitioners’ claims in their entirety. VIII. THE PETITIONERS’ CONCLUSORY PUTATIVE CLASS ACTION
ALLEGATIONS MUST BE STRICKEN The Second Circuit has recognized that Rule 23 of the Federal Rules of Civil Procedure does not apply to habeas corpus proceedings. United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974), cert. denied, 421 U.S. 921 (1975) (concluding that “the class action device should not be imported into collateral actions, at least in its full vigor as contemplated by Rule 23”). In Presier, the Second Circuit held that “multi-party [habeas] actions” may nevertheless be appropriate in “unusual” cases where there is a “compelling justification” for such an action. Id. Representative habeas actions must meet the requirements of Rule 23 and be “uncluttered by subsidiary issues,” and even then, “more stringent standards may be appropriate in deciding whether a habeas action presents substantial and common questions of law or fact.” Id. at 112627. For instance, in Presier, the Court considered a proposed habeas corpus class action brought by young adult misdemeanants (ages 16 to 21), on behalf of themselves and all others similarly situated, who were serving a reformatory sentence in excess of the adult penalty for the same misdemeanor. Id. at 1119. The petitioners in Presier alleged this correctional scheme violated the Equal Protection Clause of the Fourteenth Amendment. Id. The Second Circuit found a habeas
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representative action was appropriate in those unique circumstances because the alleged facts were “relatively uncomplicated” and “the complaint of the representative parties in this suit states a clear and unitary allegation on behalf of all young adult misdemeanants.” Id. 1120. The Presier court also found “persuasive justifications” for the class action device, including that the individual petitions of the class would “present[] the identical issue” and that it was “not improbable that more than a few [of the more than 500 members of the class] would otherwise never receive the relief here sought on their behalf” because many of them were “likely to be illiterate or poorly educated” and would not have the benefit of counsel. Id. at 1126.
This case is unlike Presier and unsuited to proceed as a representative habeas action. The habeas petitions of all the inmates in Petitioners’ various classes would not present one “identical,” “clear and unitary allegation” that is “uncluttered by subsidiary issues” and “relatively uncomplicated.” See id. at 1120, 1125-27. To the contrary, the decision to release or transfer an inmate from FCI Danbury is an inherently individualized determination that must be made by the judge presiding over the detainee’s criminal proceeding. These determinations turn not on a single legal issue common to all inmates, but on each inmate’s unique circumstances, including projected release dates, disciplinary histories, medical histories, bases for judicially imposed criminal sentences, and bases for judicial findings of dangerousness to the community and risk of flight. Moreover, Petitioners have not shown “compelling justifications” for a multi-party representative action, or that the existing procedures in place for inmates to seek release or transfer are not available or working or will not work in the future.
Nor do Petitioners’ putative class or subclasses meet the requirements of Rule 23, including ascertainability, commonality, or typicality, which they must for a Presier-like representative action to be appropriate. First, the proposed class is not ascertainable. The key to
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class certification is defining the class in a way that makes administrative sense. See Scaggs v. New York State Dep’t of Educ., No. 06-CV-0799 (RRM)(WDW), 2009 WL 890587, at *2 (E.D.N.Y. Mar. 31, 2009). Although Rule 23 “contains no express requirement regarding ascertainability, the rule impliedly prohibits certification of a class that is not identifiable by reference to objective criteria.” In re Vitamin C Antitrust Litig., 279 F.R.D. 90, 116 (E.D.N.Y. 2012).
Here, Petitioners seek to represent a class consisting of all current and future inmates at FCI Danbury during the course of the COVID-19 pandemic,” which may exceed well over 984 individuals. Petition ¶ 11. Petitioners’ putative class is inherently ill-defined, as the putative class becomes a constant moving target. Because Petitioners have provided no evidence to show that they can meet the requirement of ascertainability, their putative class fails. See John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (where apparent from pleadings that there is no ascertainable class, court may dismiss the class allegation on the pleadings).
Petitioners also seek to represent a subclass of inmates defined by Petitioners as consisting of
all individuals in custody at FCI Danbury or who will become in custody at FCI Danbury during the course of the COVID-19 pandemic who are aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of stroke; and people with any condition specifically identified by CDC, currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19.
Petition ¶ 12. While the subclass certainly has more proposed parameters than that of the putative
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class, it is still inherently ill-defined and is a moving target. Additionally, it clearly goes beyond the “at risk” population defined by the CDC.
Next, there are no questions of law or fact common to the putative class that are capable of class-wide resolution. To show commonality, “[w]hat matters . . . is not the raising of common ‘questions’—even in droves—but, rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (to satisfy Rule 23(a)(2) each class member’s claim must depend upon a common contention “of such a nature that it is capable of classwide resolution—which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke”).
In Money, 2020 WL 1820660, the district court denied class action certification in nearly 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 Wal-mart, 564 U.S. at 350.)
Here the identical problem exists. Petitioners’ putative class, and subclass, are incapable of classwide resolution, as they do not account for any of the myriad factors that are left to the
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discretion of both Article III judges and the BOP in making determinations that are central to whether a particular inmate should be released. Petitioners’ putative class and subclass seek to blend post-sentencing inmates, despite the fact that these inmates have different criminal charges or convictions, have different lengths of remaining periods of imprisonment, feature different disciplinary histories, pose different dangers to the community and risks of flight, have different ages and medical histories, and rely on different resources should they be released from custody. Petitioners even lump together inmates currently sick with COVID-19 with asymptomatic inmates and inmates who might have previously been sick and made a full recovery. There simply is no commonality and typicality among the proposed class member other than the fact or their incarceration at FCI Danbury.
Moreover, typicality requires that the named Petitioners’ claims be typical of each other and overlap factually and legally in a manner indicative of the claims of unnamed class members. See Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010). Petitioners have no basis to allege the unity or alignment of interests, either among themselves or with the other members of the proposed class, necessary to meet this requirement. Simply stated, in light of their widely-varying factual circumstances and procedural postures, Petitioners cannot represent “typical” claims of any single class. Petitioners’ claims of typicality are, in any event, self-defeating. For if the claims of the named Petitioners are typical of the rest of the class, then the defenses to those claims also apply class-wide. See Pagan v. Abbott Labs., 287 F.R.D. 139, 146 (E.D.N.Y. 2012) (typicality requirement “ensure[s] that the class representative is not subject to a unique defense which could potentially become the focus of litigation.”). For example, Petitioners Cassidy have already filed motions for compassionate release, and either have been denied or the motion is still pending. Petitioner Martinez-Brooks has submitted an administrative claim seeking compassionate release,
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but has not yet filed a motion seeking the same. Petitioner Madore has not filed either an administrative claim seeking compassionate release or a motion for compassionate release. Petitioners are inadequate class representatives for these reasons. See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999).
Finally, even assuming Petitioners’ proposed classes satisfied all four requirements of Rule 23(a), Rule 23(b)(2) would be a sticking point for class certification. Rule 23(b)(2) allows for class certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). But Rule 23(b)(2) “applies only when a single injunction or declaratory judgment would provide relief to each member of the class,” not “when each individual class member would be entitled to a different injunction.” Wal-Mart, 564 U.S. at 360. Here, the decision to release or transfer a detainee from FCI Danbury is an inherently individualized process that is not amenable to class-wide resolution in a single injunction, as this Court appears to have recognized in its May 3, 2020 Order. See Docket No. 20 (noting that Petitioners’ “requested relief includes ‘bail,’ ‘enlargement,’ or ‘release’ and [] such relief ordinarily requires the assessment of the individual circumstances of the applicant”).
Individualized proceedings are required for the writs of habeas corpus that the Petitioners seek because, among other reasons, the PLRA applies in this case. See 18 U.S.C. § 3626(g)(2) (the PLRA applies to any “civil action with respect to prison conditions” including any action “with respect to the conditions of confinement”); see also Jones, 720 F.3d at 145, n. 3 (the PLRA does not apply to “habeas petition[s] seeking to overturn a criminal conviction or sentence” but presumably applies to conditions of confinement habeas claims brought under Section 2241). Under the PLRA, in tailoring any prospective or preliminary injunctive relief “in any civil action
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with respect to prison conditions,” a court must “give substantial weight to any adverse impact on public safety,” among other considerations. 18 U.S.C. § 3626(a)(1)(A), (a)(2). This mandate precludes any class-wide injunctive relief in the form of bail, enlargement or release. Mays is instructive. –- F. 3d –-, 2020 WL 1987007, at *20. The district court in Mays denied certification of a subclass of medically vulnerable to COVID-19 prisoners under nearly identical circumstances, holding that Sections 3626(a)(1)(A) and (a)(2) of the PLRA precluded class-wide under Rule 23(b)(2). The Mays court correctly explained that, to fulfill the “PLRA’s mandate that a court ‘give substantial weight to any adverse impact on public safety’ before issuing preliminary injunctive or prospective relief,” under 18 U.S.C. §§ 3626(a)(1)(A), (a)(2), “the Court would need to consider the circumstances of the detained persons and any threat they pose to public safety, which plainly would vary from one person to another. This is a process that would render the [Petitioners’ 28 U.S.C. § 2241 habeas claims based on conditions of confinement] unsuitable to certification under Rule 23(b)(2) or its analogy for representative actions.” Id. at *20.18
For the foregoing reasons, the Court should strike the class action allegations because it is clear from the Petition itself that the requirements for maintaining a class action cannot be met.
See Johnson v. Connecticut Dept. of Admin. Serv., No. 3:11-cv-1106 (VLB), 2012 WL 414996, at *2 (D. Conn. Feb. 9, 2012).
IX. CONCLUSION The BOP is taking significant and ongoing steps to prevent the spread of COVID-19 at FCI
Danbury and to provide medical care and treatment for inmates who do become infected. The
18 Even if the PLRA did not apply to petitioners’ habeas corpus claims, the public interest—which must be taken into account when considering a TRO or preliminary injunction—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. See Money, 2020 WL 1820660, at *14.
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BOP and FCI Danbury have taken the COVID-19 pandemic extremely seriously and have implemented numerous measures to proactively combat the spread of this disease to staff members and the inmate population. The various phases of the BOP’s Action Plan have been designed and implemented in a systemic manner both nationally and at FCI Danbury in order to mitigate the spread of COVID-19. Id. The BOP and FCI Danbury 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.
For these reasons, Petitioners cannot demonstrate that the BOP, or FCI Danbury, has acted with deliberate indifference and their constitutional claims under the Eighth Amendment must fail. Moreover, the release of thousands or hundreds of prisoners by this Court is neither permitted by law, nor would it serve the health and safety of the inmates or the general public. Therefore, this Court must deny the Petition for Writ of Habeas Corpus, deny class certification in this case, and deny Petitioners’ motions for a temporary restraining order, injunctive relief and declaratory judgment.
Respondents request that the Court dismiss the Petition in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) or, alternatively, 12(b)(6).
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Respectfully Submitted Respondents By Their Attorneys John H. Durham United States Attorney
/s/ John B. Hughes, ct05289 Michelle L. McConaghy, ct27157 David C. Nelson, ct25640 Nathaniel M. Putnam, phv10463 Jillian R. Orticelli, ct28591 Assistant U.S. Attorneys 203-821-3700 john.hughes@usdoj.gov Michelle.mcconaghy@usdoj.gov David.C.Nelson@usdoj.gov nathaniel.putnam@usdoj.gov jillian.orticelli@usdoj.gov
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Case 3:20-cv-00569-MPS Document 24-1 Filed 05/05/20 Page 88 of 88 CERTIFICATION
I hereby certify that on May 5, 2020, a copy of the foregoing was filed electronically. Notice of this filing was sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
/s/ Michelle L. McConaghy (ct27157) Assistant U.S. Attorney
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Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 30 of 54
EXHIBIT B

LexisNexis CourtLink - Show Docket
Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 31 of 54

US District Court Criminal Docket
U.S. District - New York Western (Buffalo)
1:17cr116 USA v. Cassidy
This case was retrieved from the court on Tuesday, May 5, 2020

Date Filed: 06/13/2017 Other Magistrate judge case number:
Docket: 1:16mj05073
Name Kenneth Cassidy(1) [Term: 12/20/2018]

Class Code: CLOSED Closed: yes
Defendants
Attorneys
Barry Nelson Covert LEAD ATTORNEY;ATTORNEY TO BE NOTICED Lipsitz Green Scime Cambria LLP 42 Delaware Avenue Suite 120 716-849-1333, ext. 365 Buffalo, NY 14202 USA Fax: 716-855-1580 Designation: Retained Email: bcovert@lglaw.com
Jeffrey T. Bagley LEAD ATTORNEY;ATTORNEY TO BE NOTICED Federal Public Defender 300 Pearl Street Suite 200 Buffalo, NY 14202 USA 716-551-3341 Email: jeffrey_bagley@fd.org
Terence Brian Newcomb [Term: 09/05/2017] P.O. Box 78 Buffalo, NY 14205-0078 USA 716-867-1627 Fax: 716-677-6766 Designation: CJA Appointment Email: newcattack@aol.com

Charges
Complaints: 18:1343.F Fraud by Wire, Radio, or Television
Pending: 18:1349.F ATTEMPT AND CONSPIRACY TO COMMIT MAIL FRAUD(1s)

Disposition
The Defendant is sentenced to the custody of the BOP for a term of 60 months to run concurrent to the sentence of imprisonment imposed on Count 2 and a 3 year term of Supervised Release to run concurrent to the term of supervised release imposed on Count 2. Conditions of Supervised release are as detailed in minute entry of 12/18/2018. $100.00 Special

https://courtlink.lexisnexis.com/ControlSupport/UserControls/ShowDocket.aspx?Key=492886172|0||2|-1|0|0|0|[5/5/2020 9:34:30 AM]

LexisNexis CourtLink - Show Docket
Case 3:20-cv-00569-MPS

Document 24-2 Filed 05/05/20 Page 32 of 54
Assessment imposed. Restitution in the amount of
$2,649,169.17 imposed.

26:7203D.M WILLFUL FAILURE TO FILE RETURN, SUPPLY INFORMATION, OR PAY TAX(2s) Offense Level (Opening): Felony

he Defendant is sentenced to the custody of the BOP for a term of 12 months to run concurrent to the sentence of imprisonment imposed on Count 1 and a 1 year term of Supervised Release to run concurrent to the term of supervised release imposed on Count 2. Conditions of Supervised release are as detailed in minute entry of 12/18/2018. $25.00 Special Assessment imposed. Restitution in the amount of $2,649,169.17 imposed.

Terminated: 18:1349.F ATTEMPT AND CONSPIRACY TO COMMIT MAIL FRAUD(1)

Dismissed.

18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION(2-5) Offense Level (Terminated): Felony

Dismissed.

Case Assigned to: Honorable William M. Skretny Case Referred to: Honorable Michael J. Roemer

Aaron J. Mango LEAD ATTORNEY;ATTORNEY TO BE NOTICED U.S. Attorney's Office Federal Centre 138 Delaware Avenue Buffalo, NY 14202 USA 716-843-5882 Fax: 716-551-3146 Designation: government attorney Email: aaron.mango@usdoj.gov

U. S. Attorneys

Date

#

Proceeding Text

06/27/2016

1

COMPLAINT as to Kenneth Cassidy (1). (RAZ) [1:16-mj-05073-MJR] (Entered: 08/25/2016)

01/11/2017

SCHEDULING NOTICE as to Kenneth Cassidy. Initial Appearance set for 1/13/2017 10:30 AM before Hon. Michael J. Roemer. (RAZ) [1:16-mj-05073-MJR] (Entered: 01/11/2017)

01/13/2017

Case unsealed as to Kenneth Cassidy. (RAZ) [1:16-mj-05073-MJR] (Entered: 01/13/2017)

01/13/2017

2

Arrest Warrant Returned Executed on 12/27/2016 in case as to Kenneth Cassidy. (RAZ) [1:16-mj-

05073-MJR] (Entered: 01/13/2017)

01/13/2017

3

Minute Entry for proceedings held before Hon. Michael J. Roemer. Initial Appearance as to Kenneth

Cassidy held on 1/13/2017. Deft had appeared for an initial appearance in the EDNY before USMJ

Marilyn D.Go on 12/28/2016. The deft was remanded to the custody of the USMS and ordered

removed to the WDNY for further proceedings.Court advised deft of his rights, including the right to

counsel. Deft requested assigned counsel and is sworn, questioned and found eligible. Terrence B.

Newcomb, Esq. accepted CJA assignment.Govt moved for detention. Detention Hearing set for

1/18/2017 11:30 AM before Hon. Michael J. Roemer where at that time parties will report back

regarding a preliminary hearing. Time excluded as from 1/13/2017 to 1/18/2017 for purposes of the

STA as stated on the record. Defendant remanded to the custody of the USMS. Appearances: AUSA

Aaron J. Mango; Terrence B. Newcomb, Esq. w/deft; USPOA Ashley McNeal. (Court Reporter FTR

Gold.)(RAZ) [1:16-mj-05073-MJR] (Entered: 01/13/2017)

01/13/2017

4

CJA 23 Financial Affidavit by Kenneth Cassidy. (RAZ) [1:16-mj-05073-MJR] (Entered: 01/13/2017)

01/18/2017

5

Minute Entry for proceedings held before Hon. Michael J. Roemer. Detention Hearing as to Kenneth

Cassidy held on 1/18/2017.Parties proceeded by proffer. Court found by a preponderance of the

evidence that no condition or combination of conditions will reasonably assure the defendant's

appearance as required and found by clear and convincing evidence that no condition or combination

of conditions will reasonably assure the safety of any other person and the community.Deft waived

preliminary hearing. Status Conference (Rule 48(b)) set for 4/18/2017 10:30 AM before Hon.

Michael J. Roemer. Time excluded as from 1/18/2017 to 4/18/2017 for purposes of the STA as

stated on the record. Deft is remanded to the custody of the USMS. Appearances: AUSA Aaron J.

Mango; Terence B. Newcomb, Esq. w/deft; USPOA Ashley McNeal. (Court Reporter FTR Gold.)(RAZ)

[1:16-mj-05073-MJR] (Entered: 01/19/2017)

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01/18/2017

6

ORDER OF DETENTION as to Kenneth Cassidy. Signed by Hon. Michael J. Roemer on 1/18/2017.

(RAZ) [1:16-mj-05073-MJR] (Entered: 01/19/2017)

04/18/2017

7

Minute Entry for proceedings held before Hon. Michael J. Roemer. Status Conference as to Kenneth

Cassidy held on 4/18/2017. Govt reported that parties are proceeding toward a pretrial disposition of

this case. Status Conference (Rule 48(b)) set for 6/20/2017 11:00 AM before Hon. Michael J.

Roemer.Time excluded as from 4/18/2017 to 6/20/2017 for purposes of the STA as stated on the

record. Appearances: AUSA Aaron J. Mango; deft Kenneth Cassidy. No appearance by deft counsel

Terence B. Newcomb. (Court Reporter FTR Gold.)(RAZ) [1:16-mj-05073-MJR] (Entered:

04/18/2017)

06/13/2017

8

INDICTMENT as to Kenneth Cassidy (1) count(s) 1, 2-5. (KLH) (Entered: 06/14/2017)

06/13/2017

9

TEXT ORDER OF REFERRAL Hon. Michael J. Roemer, United States Magistrate Judge, is hereby

designated to act in this case as follows:All pre-trial matters in this case are referred to the above-

named United States Magistrate Judge, including all pre-trial matters that a Magistrate Judge may

hear and determine pursuant to 28 U.S.C. Section 636(b)(1)(A), and those which a Magistrate Judge

may hear and thereafter file a report and recommendation for disposition pursuant to Section 636(b)

(1)(B).All procedural aspects of matters properly before the Magistrate Judge under this Order,

including scheduling and the filing of briefs or other supporting material, shall be determined by the

Magistrate Judge.All motions or applications shall be filed with the Clerk and made returnable before

the Magistrate Judge. IT IS SO ORDERED. Signed by Hon. William M. Skretny on 6/13/2017.(KLH)

(Entered: 06/14/2017)

06/15/2017

SCHEDULING NOTICE as to Kenneth Cassidy. Arraignment set for 6/20/2017 11:00 AM before Hon. Michael J. Roemer. (RAZ) (Entered: 06/15/2017)

06/20/2017 10 Minute Entry for proceedings held before Hon. Michael J. Roemer. Arraignment as to Kenneth Cassidy (1) Count 1,2-5 held on 6/20/2017.Govt summarized charges in the Indictment and possible penalties. Deft waived reading of Indictment and entered a plea of not guilty to charges therein. Scheduling Order to issue. Time excluded from 6/20/2017 to 9/13/2017 for purposes of STA as stated on the record. No changed circumstances exist that would warrant the Court's reconsideration of its prior order of detention. Defendant shall remain detained. Appearances: AUSA Stephanie Lamarque and Law Student Alexandria Rowen; Terence B. Newcomb, Esq. w/deft. (Court Reporter FTR Gold.)(RAZ) (Entered: 06/23/2017)

06/20/2017 11 SCHEDULING ORDER as to Kenneth Cassidy. (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.)Discovery completed by 7/20/2017. Motions due by 9/13/2017. Responses due by 9/27/2017. Replies due by 10/11/2017. Oral Argument set for 10/18/2017 10:30 AM before Hon. Michael J. Roemer. Signed by Hon. Michael J. Roemer on 6/20/2017.(RAZ) (Entered: 06/23/2017)

08/24/2017 12 NOTICE OF ATTORNEY APPEARANCE: Barry Nelson Covert appearing for Kenneth Cassidy (Covert, Barry) (Entered: 08/24/2017)

08/28/2017

SCHEDULING NOTICE as to Kenneth Cassidy. Status Conference set for 9/5/2017 11:00 AM before Hon. Michael J. Roemer to discuss scheduling as deft has retained counsel.(RAZ) (Entered: 08/28/2017)

09/05/2017 13 Minute Entry for proceedings held before Hon. Michael J. Roemer. Status Conference re discovery and motion deadlines as to Kenneth Cassidy held on 9/5/2017. An amended scheduling order to be issued. STA exclusion. Appearances: AUSA Aaron J. Mango; Barry N. Covert, Esq. w/deft. (Court Reporter FTR Gold.)(RAZ) (Entered: 09/05/2017)

09/05/2017

Attorney update in case as to Kenneth Cassidy. Attorney Terence Brian Newcomb terminated. (RAZ) (Entered: 09/05/2017)

09/05/2017 14 AMENDED SCHEDULING ORDER as to Kenneth Cassidy (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.).Motions due by 10/16/2017. Responses due by 10/30/2017. Replies due by 11/6/2017. Oral Argument set for 11/13/2017 11:00 AM before Hon. Michael J. Roemer. Signed by Hon. Michael J. Roemer on 9/5/2017.(RAZ) (Entered: 09/05/2017)

10/14/2017 15 MOTION for Extension of Time to File Motions by Kenneth Cassidy. (Covert, Barry) (Entered: 10/14/2017)

10/16/2017 16 TEXT ORDER granting 15 Motion for Extension of Time to File Pretrial Motions as to Kenneth Cassidy (1). An amended scheduling order to be issued. SO ORDERED. Issued by Hon. Michael J. Roemer on 10/16/2017.(RAZ) (Entered: 10/16/2017)

10/16/2017 17 SECOND AMENDED SCHEDULING ORDER as to Kenneth Cassidy. (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.)Motions due by 11/30/2017. Responses due by 12/14/2017. Replies due by

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12/21/2017. Oral Argument set for 1/9/2018 10:30 AM before Hon. Michael J. Roemer. Signed by Hon. Michael J. Roemer on 10/16/2017.(RAZ) (Entered: 10/16/2017)
11/29/2017 18 MOTION for Extension of Time to File Pretrial Motions by Kenneth Cassidy. (Covert, Barry) (Entered: 11/29/2017)
11/30/2017 19 TEXT ORDER granting 18 Motion for Extension of Time to File Pretrial Motions as to Kenneth Cassidy (1). An amended scheduling order to be issued. SO ORDERED. Issued by Hon. Michael J. Roemer on 11/30/2017.(RAZ) (Entered: 11/30/2017)
11/30/2017 20 THIRD AMENDED SCHEDULING ORDER as to Kenneth Cassidy. (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.)Motions due by 1/31/2018. Responses due by 2/12/2018. Replies due by 2/26/2018. Oral Argument set for 3/6/2018 11:00 AM before Hon. Michael J. Roemer. Signed by Hon. Michael J. Roemer on 11/30/2017.(RAZ) (Entered: 11/30/2017)
12/15/2017 21 SCHEDULING NOTICE as to Kenneth Cassidy. A Wavier of Indictment and Plea is scheduled for 1/2/2018 at 9:30 AM before the Hon. William M. Skretny. (MEAL) (Entered: 12/15/2017)
12/22/2017 22 ADJOURNMENT NOTICE as to Kenneth Cassidy. The Waiver of Indictment and Plea scheduled for 1/2/2018 at 9:30 AM before the Hon. William M. Skretny is ADJOURNED to 1/8/2018 at 10:00 AM. (MEAL) (Entered: 12/22/2017)
01/08/2018 23 WAIVER OF INDICTMENT by Kenneth Cassidy. (KM) (Entered: 01/10/2018)
01/08/2018 24 SUSPERCEDING INFORMATION as to Kenneth Cassidy (1) count(s) 1s, 2s. (KM) (Entered: 01/10/2018)
01/08/2018 25 PLEA AGREEMENT as to Kenneth Cassidy. (KM) (Entered: 01/10/2018)
01/08/2018 26 Minute Entry for proceedings held before the Hon. William M. Skretny:Waiver of Indictment and Plea as to Kenneth Cassidy held on 1/8/20187. Waiver of Indictment and Plea Agreement entered into and accepted by the Court. Defendant pled guilty to a Two Count Felony Superseding Information. Guilty plea accepted by the Court. Sentencing set for 4/18/2018 at 9:00 AM before the Hon. William M. Skretny. Presentence Report to Parties due by 3/5/2018. Sentencing Factors Statements/Sentencing Motions due by 3/28/2018. Motions to Adjourn due by 4/9/2018. Character Letters due by 4/9/2018. Objections/Responses to Sentencing Factors/Motions due by 4/9/2018., Presentence Report to the Court due by 4/9/2018. Court strongly urges the USMS to keep the defendant housed in Northeastern Ohio facility where he has been receiving medical treatment pending sentencing. Defendant remanded. For the govt. - Aaron Mango. For the deft. - Barry Covert. (Court Reporter Megan Pelka.) (MEAL) - PROBATION NOTIFIED OF PLEA - (Entered: 01/10/2018)
03/05/2018 27 PRESENTENCE INVESTIGATION REPORT (Sealed) as to Kenneth Cassidy. (Schrack, Joette) (Entered: 03/05/2018)
03/28/2018 28 STATEMENT WITH RESPECT TO SENTENCING FACTORS by USA as to Kenneth Cassidy (Mango, Aaron) (Entered: 03/28/2018)
03/28/2018 29 MOTION by USA as to Kenneth Cassidy. (Mango, Aaron) (Entered: 03/28/2018)
03/28/2018 30 MOTION to Adjourn Sentencing Date by Kenneth Cassidy. (Covert, Barry) (Entered: 03/28/2018)
03/29/2018 31 Sealed Document as to Kenneth Cassidy. (KM) (Entered: 03/29/2018)
03/30/2018 32 TEXT ORDER as to Kenneth Cassidy. IT HEREBY IS ORDERED THAT, the Defendant's 30 Motion to Adjourn Sentencing is GRANTED. Sentencing currently scheduled for 4/18/2018 at 9:00 AM before William M. Skretny, United States District Judge is ADJOURNED to 6/27/2018 at 11:00 AM. All sentencing submissions are due no later than 6/13/2018. SO ORDERED. Issued by William M. Skretny, United States District Judge on 3/30/2018. (MEAL) (Entered: 03/30/2018)
04/11/2018 33 RECOMMENDATION (Sealed) as to Kenneth Cassidy. (Hartman, Justine) (Entered: 04/11/2018)
06/07/2018 34 SCHEDULING CHANGE NOTICE as to Kenneth Cassidy. The TIME of the Sentencing scheduled for 6/27/2018 before William M. Skretny, United States District Judge has been CHANGED to 9:30 AM. (MEAL) (Entered: 06/07/2018)
06/08/2018 35 MOTION to Adjourn Sentencing by Kenneth Cassidy. (Covert, Barry) (Entered: 06/08/2018)
06/11/2018 36 TEXT ORDER as to Kenneth Cassidy. IT HEREBY IS ORDERED that the Defendant's Motion to Adjourn Sentencing 35 is GRANTED. Sentencing currently scheduled 6/27/2018 is ADJOURNED to 8/22/2018 at 9:00 AM, before the Hon. William M. Skretny. Sentencing Factors Statements/Sentencing Motions are due by 8/1/2018. Objections/Responses are due by 8/8/2018. Character Letters are due by 8/15/2018. Issued by United States District Judge William M. Skretny on 6/11/2018.(JCM) (Entered: 06/11/2018)
08/01/2018 37 STATEMENT WITH RESPECT TO SENTENCING FACTORS by Kenneth Cassidy (Covert, Barry) (Entered: 08/01/2018)
08/10/2018 38 MOTION to Adjourn Sentencing by Kenneth Cassidy. (Covert, Barry) (Entered: 08/10/2018)
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08/14/2018 39 TEXT ORDER as to Kenneth Cassidy. IT HEREBY IS ORDERED that the Defendant's Motion to Adjourn Sentencing 38 is GRANTED. Sentencing currently scheduled 8/22/2018 is ADJOURNED to 10/3/2018 at 9:00 AM, before the Hon. William M. Skretny. Sentencing Factors Statements/Sentencing Motions are due by 9/12/2018. Objections/Responses are due by 9/19/2018. Character Letters are due by 9/26/2018. Issued by United States District Judge William M. Skretny on 8/14/2018.(JCM) (Entered: 08/14/2018)
09/25/2018 40 MOTION to Adjourn Defendant's Sentencing by Kenneth Cassidy. (Covert, Barry) (Entered: 09/25/2018)
09/27/2018 41 TEXT ORDER as to Kenneth Cassidy.IT HEREBY IS ORDERED that the Defendants Motion to Adjourn Sentencing 40 is GRANTED. Sentencing currently scheduled October 3, 2018 at 10/3/2018 at 9:00 AM, is CONVERTED TO A STATUS CONFERENCE, before the Hon. William M. Skretny.Issued by United States District Judge William M. Skretny on 9/27/2018.(JCM) (Entered: 09/27/2018)
10/03/2018 42 Minute Entry for proceedings held before the Hon. William M. Skretny: Status Conference re: sentencing as to Kenneth Cassidy held on 10/3/2018. Parties request additional time to resolve outstanding matters relating to sentencing. Court grants same. Sentencing is now scheduled for 11/28/2018 at 10:00 AM before the Hon. William M. Skretny. Defendant present and remanded. For the govt. - Aaron Mango. For the deft. - Barry Covert. For prob. - Susan Murray. (Court Reporter Jane Kellogg - FTR.) (MEAL) (Entered: 10/04/2018)
11/15/2018 43 SENTENCING MEMORANDUM by Kenneth Cassidy (Attachments: # 1 Exhibit A)(Covert, Barry) (Entered: 11/15/2018)
11/19/2018 44 REVISED PRESENTENCE INVESTIGATION REPORT (Sealed) as to Kenneth Cassidy. (JMH) (Entered: 11/19/2018)
11/26/2018 45 MOTION to Seal by Kenneth Cassidy. (Attachments: # 1 Text of Proposed Order)(Covert, Barry) (Entered: 11/26/2018)
11/26/2018 46 MOTION to Adjourn Sentencing by Kenneth Cassidy. (Covert, Barry) (Entered: 11/26/2018)
11/27/2018 47 TEXT ORDER as to Kenneth Cassidy.IT HEREBY IS ORDERED that the Defendant's Motion to Adjourn Sentencing 46 is GRANTED. Sentencing currently scheduled 11/28/2018 is ADJOURNED to 12/18/2018 at 11:00 AM, before the Hon. William M. Skretny.FURTHER, the parties are advised that this is the final adjournment in this matter.SO ORDERED. Issued by United States District Judge William M. Skretny on 11/27/2018.(JCM) (Entered: 11/27/2018)
11/28/2018 48 TEXT ORDER as to Kenneth Cassidy GRANTING 45 Defendant's Motion to Seal. Issued by United States District Judge William M. Skretny on 11/27/2018.(JCM)-CLERK TO FOLLOW UP- (Entered: 11/28/2018)
11/29/2018 49 Sealed Document as to Kenneth Cassidy. (KM) (Entered: 11/29/2018)
12/17/2018 51 Sealed Document as to Kenneth Cassidy. (KM) (Entered: 12/18/2018)
12/18/2018 50 Minute Entry for proceedings held before William M. Skretny, United States District Judge. Sentencing held on 12/18/2018 for Kenneth Cassidy on Two Count Superseding Information. The Court accepts the plea agreement/guilty plea (11(c)(1)(C)). Presentence report to be sealed - will be made available to counsel for appeal purposes only. The probation department's recommendation section which is a part of said presentence report will be kept under separate seal and will not be accessible to counsel. Court grants the government's application for an additional 1-level departure for acceptance of responsibility pursuant to USSG § 3E1.1(b) and the government's motion for a downward departure of 3 levels pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e). Total Offense Level: 19. Criminal History Category V. The Defendant is sentenced to the custody of the BOP for a term of 60 months on Count 1 and 12 months on Count 2 to run concurrent. Upon release from imprisonment the defendant is placed on supervised release for a term of 3 years on Count 1 and 1 year on Count 2 to run concurrent. While on supervised release the defendant shall abide by the following conditions: The defendant shall abide by the standard conditions of supervised release as promulgated in the WDNY. The defendant shall not commit any crimes, federal, state or local. The defendant shall be prohibited from possessing a firearm or other dangerous device. The defendant shall not possess a controlled substance. The defendant shall complete a drug/alcohol evaluation and enter into treatment as directed by the probation office. The defendant is not to leave treatment until discharge is agreed to by the probation office and the treating agency. Mandatory drug testing imposed. Search condition imposed. Defendant shall cooperate in the collection of a DNA sample as required by the Justice For All Act of 2004. The defendant shall make restitution in the amount of $2,649,169.17 to Lowes. Restitution is due immediately. Interest on the restitution is waived. Payments to be made pursuant to UNICOR designation while incarcerated. While on supervision, the defendant shall make monthly payments at the rate of 10% of monthly gross income. Financial disclosure and restrictions imposed. The defendant shall participate in a program for gambling addiction, including an evaluation and any treatment by the evaluation - details to be supervised by probation. The defendant shall refrain from participating in any gambling functions/activities. If residing in the Southern District of New York, the defendant shall complete self-exclusion forms for any casinos in that jurisdiction. The defendant shall not enter Lowes, Home Depot, Enterprise Rent-
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A-Car, or any other business establishment that has applications that can be filed for escrowed business accounts. The defendant is prohibited from any self-employment. No fines, fees or costs imposed. The defendant shall pay a SPA in the amount of $100.00 on Count 1 and $25.00 on Count 2, due immediately. All parties are in agreement that the currency previously seized from the defendant by law enforcement should turned over and applied as credit to the restitution. The Court recommends that the defendant participate in the RDAP Program while incarcerated. In the event that there is a change in policy or procedure to allow for the serving of the defendant's last year of incarceration in a halfway house setting, the Court will recommend that defendant be considered for inclusion. The Court imposes sentence as stated. Government moves for dismissal of the indictment. Court directs preparation of judgment of conviction. Defendant remanded. For the govt. - Aaron Mango For the deft. - Barry Covert. For prob. - Susan Murray. (Court Reporter Jane Kellogg - FTR.) (MEAL) (Entered: 12/18/2018) 12/20/2018 52 JUDGMENT as to Kenneth Cassidy (1), Additional certified copies forwarded to USPO, USM, US Attorney, Debt Collection, Financial Department. Signed by Hon. William M. Skretny on 12/20/2018. (KM) (Entered: 12/26/2018) 12/20/2018 53 Sealed Document (Statement of Reasons) as to Kenneth Cassidy. (KM) (Entered: 12/26/2018) 04/10/2020 54 NOTICE OF ATTORNEY APPEARANCE: Jeffrey T. Bagley appearing for Kenneth Cassidy (Bagley, Jeffrey) (Entered: 04/10/2020) 04/10/2020 55 MOTION to Reduce Sentence by Kenneth Cassidy. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Bagley, Jeffrey) (Entered: 04/10/2020) 04/14/2020 56 SCHEDULING NOTICE on Defendant's 55 Motion to Reduce Sentence. Government's Response due by 4/17/2020. Defendant's Reply due by 4/20/20. Oral Argument will be scheduled by the Court if necessary. (JCM) (Entered: 04/14/2020) 04/15/2020 57 RESPONSE in Opposition by USA as to Kenneth Cassidy re 55 MOTION to Reduce Sentence (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Mango, Aaron) (Entered: 04/15/2020) 04/20/2020 58 REPLY TO RESPONSE to Motion by Kenneth Cassidy re 55 MOTION to Reduce Sentence (Attachments: # 1 Affirmation of Karen Francati, # 2 Sampling of more than 40 release cases, # 3 BOP OSHA Complaint)(Bagley, Jeffrey) (Entered: 04/20/2020) 04/21/2020 59 AFFIRMATION by Kenneth Cassidy (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bagley, Jeffrey) (Entered: 04/21/2020) 04/22/2020 60 AFFIRMATION by Kenneth Cassidy (Attachments: # 1 United States v. Bess -- Decision and Order) (Bagley, Jeffrey) (Entered: 04/22/2020) 04/24/2020 61 DECISION AND ORDER as to Kenneth Cassidy. IT HEREBY IS ORDERED, that Cassidy's Motion for Release or Sentence Reduction (Docket No. 55) is DENIED without prejudice. SO ORDERED. Signed by William M. Skretny, United States District Judge on 4/24/2020.(JCM) (Entered: 04/24/2020) 05/04/2020 62 MOTION to Reduce Sentence by Kenneth Cassidy. (Bagley, Jeffrey) (Entered: 05/04/2020) 05/04/2020 63 SCHEDULING NOTICE on Defendant's 62 Motion to Reduce Sentence. The government's response is due by 5/6/2020. The defendant's reply is due by 5/7/2020. Oral Argument will be scheduled by the Court if necessary. (JCM) (Entered: 05/04/2020)
Copyright © 2020 LexisNexis CourtLink, Inc. All rights reserved. *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY ***
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EXHIBIT C

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US District Court Criminal Docket
U.S. District - New York Western (Rochester)
6:12cr6003 USA v. Collier
This case was retrieved from the court on Tuesday, May 5, 2020

Date Filed: 01/13/2012 Other Related Case: 6:13cv06576
Docket: Magistrate judge case number: 6:11mj00676
Name Rejeanne Collier(1) [Term: 09/17/2015]

Class Code: CLOSED Closed: yes
Defendants
Attorneys
Rejeanne Collier PRO SE ALDERSON 21263-055 FEDERAL PRISON CAMP Inmate Mail/Parcels GLEN RAY RD. BOX A ALDERSON, WV 24910 USA
Peter J. Pullano LEAD ATTORNEY;ATTORNEY TO BE NOTICED Tully Rinckey PLLC 16 West Main Street Suite 740 Rochester, NY 14614 USA 585-492-4700 Fax: 585-331-8899 Email: PJPullano@gmail.com
Steven G. Slawinski ATTORNEY TO BE NOTICED Federal Public Defender 28 East Main Street Suite 400 Rochester, NY 14614 USA 585-263-6201 Fax: 585-263-5871 Designation: Public Defender Appointment Email: steven_slawinski@fd.org

Charges

Disposition

Complaints:

21:846=CD.F, 21:841A=CD.F, 18:2 - an offense described as follows: knowingly and unlawfully conspiring to possess with intent to distribute one kilogram or more of heroin and attempting to possess with intent to distribute 100 grams or more of heroin; and knowingly and unlawfully aiding and abetting the commission of an offense

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Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 39 of 54

Pending: 21:846=ND.F CONSPIRACY TO DISTRIBUTE

Sentence reduced from Two Hundred Twenty-Eight

NARCOTICS(1)

(228) months to 186 months effective 11/1/15; fine

Offense Level (Opening): Felony

of $1,700 (interest waived); $100 special

assessment; supervised release upon release from

imprisonment for a term of Ten (10) years; and other

conditions as set forth.

Terminated: none

Case Assigned to: Honorable Charles J. Siragusa

Kevin D. Robinson LEAD ATTORNEY;ATTORNEY TO BE NOTICED U.S. Attorney's Office Federal Centre 138 Delaware Avenue Buffalo, NY 14202 USA 716-843-5804 Fax: 716-551-3196 Email: kevin.d.robinson@usdoj.gov
Robert Marangola LEAD ATTORNEY;ATTORNEY TO BE NOTICED U.S. Attorney's Office 100 State Street Room 620 Rochester, NY 14614 USA 585-263-6760 Fax: 585-263-6226 Email: robert.marangola@usdoj.gov

U. S. Attorneys

Date

#

Proceeding Text

11/22/2011

1

COMPLAINT as to Robert Wilson (1), Rejeanne Collier (2). (CAM) [6:11-mj-00676-JWF] (Entered:

11/22/2011)

11/23/2011

2

Arrest Warrant Returned Executed on 11/22/2011 in case as to Rejeanne Collier. (BK) [6:11-mj-

00676-JWF] (Entered: 11/23/2011)

11/23/2011

Attorney update in case as to Robert Wilson, Rejeanne Collier. Attorney Lawrence L. Kasperek for Robert Wilson, Steven G. Slawinski for Rejeanne Collier added. (LMD) [6:11-mj-00676-JWF] (Entered: 11/30/2011)

11/23/2011

4

Minute Entry for proceedings held before Hon. Jonathan W. Feldman: Def. Wilson w/Donald

Thompson, Esq. for Larry Kasperek, Esq.; Def. Collier w/Steven Slawinski, AFPD, Robert Marangola,

AUSA and Jeffrey Mileham, USPO. Initial Appearance as to Robert Wilson, Rejeanne Collier held on

11/23/2011, Defendants advised of rights. Defendants request court appointed counsel. Court

provisionally appoints Larry Kasperek as counsel for Robert Wilson subject to the approval of a

financial affidavit. Court appoints the Federal Defender's Office for Rejeanne Collier. Govt. moves for

detention based on risk of flight and danger.I Detention Hearing set for 12/8/2011 11:00 AM before

Hon. Marian W. Payson. Time Excluded as to Robert Wilson, Rejeanne Collier from: 11/23/2011 to

12/8/2011 in the interest of justice. (digital recording.)(LMD) [6:11-mj-00676-JWF] (Entered:

11/30/2011)

11/23/2011

5

CJA 23 Financial Affidavit by Rejeanne Collier. (LMD) [6:11-mj-00676-JWF] (Entered: 11/30/2011)

12/08/2011

6

Sealed Document as to Rejeanne Collier. (CAM) [6:11-mj-00676-JWF] (Entered: 12/08/2011)

12/15/2011

8

Minute Entry for proceedings held before Hon. Marian W. Payson:Status Conference as to Rejeanne

Collier held on 12/15/2011. Defendant makes requests to adjourn the detention hearing - request

granted. Status Conference/Set PH Date/Set Detention Hearing Date: 1/3/12 @ 9:30 a.m.before

Judge Feldman.Appearances: Robert Marangola, AUSA; Defendant with Steven Slawinski,

AFPD(Digital Recording)(CAM) [6:11-mj-00676-JWF] (Entered: 12/27/2011)

01/03/2012

9

ORDER TO CONTINUE - Ends of Justice as to Rejeanne Collier Time excluded from 1/3/2012 until

2/3/2012., Status Conference reset from 1/3/2012 to 2/3/2012 09:30 AM before Hon. Jonathan W.

Feldman. Signed by Hon. Jonathan W. Feldman on 1/3/2012.(LMD) [6:11-mj-00676-JWF] (Entered:

01/03/2012)

01/06/2012

The Honorable Charles J. Siragusa assigned to case 12-CR-6003 for possible plea. (BK) [6:11-mj00676-JWF] (Entered: 01/06/2012)

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01/06/2012

NOTICE OF HEARING as to Rejeanne Collier. Plea Agreement Hearing set for 1/13/2012 10:00 AM before Hon. Charles J. Siragusa. (KJA) Modified on 1/6/2012 (KJA). [6:11-mj-00676-JWF] (Entered: 01/06/2012)

01/06/2012

E-Filing Notification: NOTICE OF HEARING as to Rejeanne Collier amended to reflect correct time of 10:00 a.m. for Plea Hearing. (KJA) [6:11-mj-00676-JWF] (Entered: 01/06/2012)

01/06/2012 10 MOTION to Seal Notice of Motion by USA as to Rejeanne Collier. (Marangola, Robert) [6:11-mj00676-JWF] (Entered: 01/06/2012)

01/13/2012 11 WAIVER OF INDICTMENT by Rejeanne Collier (TO) (Entered: 01/17/2012)

01/13/2012 12 INFORMATION as to Rejeanne Collier (2) count(s) 1. (TO) (Entered: 01/17/2012)

01/13/2012 13 PLEA AGREEMENT as to Rejeanne Collier (TO) (Entered: 01/17/2012)

01/13/2012 14 Sealed Document (TO) (Entered: 01/17/2012)

01/13/2012 15 Sealed Document (TO) (Entered: 01/17/2012)

01/13/2012 16 Sealed Document (TO) (Entered: 01/17/2012)

01/13/2012 17 ORDER Setting Conditions of Release. Signed by Hon. Charles J. Siragusa on 1/13/2012.(TO) (Entered: 01/17/2012)

01/13/2012 18 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Robert Marangola appearing on behalf of government. Steven Slawinski appearing with defendant. Jillian Trahms appearing for probation. Plea Hearing as to Rejeanne Collier held on 1/13/2012. Plea entered by Rejeanne Collier (2) Guilty Count 1. Court releases defendant on conditions as set forth. Sentencing set for 4/20/2012 03:15 PM before Hon. Charles J. Siragusa. (KJA) (Entered: 01/17/2012)

01/17/2012 19 SENTENCING GUIDELINE ORDER as to Rejeanne Collier. Sentencing set for 4/20/2012 at 3:15 PM before Hon. Charles J. Siragusa. Signed by Hon. Charles J. Siragusa on 1/13/12.(KJA) (Entered: 01/17/2012)

01/23/2012 20 ORDER modifying conditions of release to curfew as to Rejeanne Collier. Signed by Hon. Charles J. Siragusa on 1/20/2012.(TO) (Entered: 01/24/2012)

04/16/2012 21 TEXT ORDER as to Rejeanne Collier granting government's request for adjournment. ( Sentencing set for 7/25/2012 10:00 AM before Hon. Charles J. Siragusa.). Signed by Hon. Charles J. Siragusa on 4/16/12.(KAP) (Entered: 04/16/2012)

04/16/2012

Terminate Deadlines and Hearings as to Rejeanne Collier: (KAP) (Entered: 04/16/2012)

07/03/2012

NOTICE OF HEARING as to Rejeanne Collier Status Conference for violation set for 7/10/2012 03:30 PM before Hon. Charles J. Siragusa. (KAP) (Entered: 07/03/2012)

07/03/2012 23 MOTION to Revoke Government's Motion to Revoke Defendant's Release Order by USA as to Rejeanne Collier. (Marangola, Robert) (Entered: 07/03/2012)

07/03/2012

Arrest of Rejeanne Collier (LMD) (Entered: 07/05/2012)

07/03/2012 24 Minute Entry for proceedings held before Hon. Jonathan W. Feldman: Appearances: Def. w/Steve Slawinski, Esq.; Robert Marangola, AUSA. Initial Appearance on violation of pretrial release as to Rejeanne Collier held on 7/3/2012. Govt. moves to revoke bail. Written motion to be filed by close of business today. Adjourned to 7/10/2012 at 3:30 PM before Judge Siragusa. (digital recording.)(LMD) (Entered: 07/05/2012)

07/10/2012 25 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Jennifer Noto appearing on behalf of government. Steven Slawinski appearing with defendant. Nathan Bradley appearing for probation. Status Conference re violation of pre-trial release as to Rejeanne Collier held on 7/10/2012. Court grants 23 Government's Motion to Revoke Defendant's Release Order. Defendant to remain in custody. (Court Reporter Karen Bush.)(KJA) (Entered: 07/12/2012)

07/17/2012 26 TEXT ORDER as to Rejeanne Collier granting defendant's request for adjournment. Sentencing set for 8/27/2012 10:45 AM before Hon. Charles J. Siragusa. Copy of text order forwarded to U.S. Probation Office. Signed by Hon. Charles J. Siragusa on 7/13/12.(KJA) (Entered: 07/17/2012)

08/15/2012 27 TEXT ORDER as to Rejeanne Collier granting defendant's request for adjournment. Sentencing set for 10/15/2012 04:00 PM before Hon. Charles J. Siragusa. Copy of text order forwarded to U.S. Probation Office. Signed by Hon. Charles J. Siragusa on 8/14/12.(KJA) (Entered: 08/15/2012)

08/21/2012 28 STATEMENT WITH RESPECT TO SENTENCING FACTORS by USA as to Rejeanne Collier (Marangola, Robert) (Entered: 08/21/2012)

08/21/2012 29 MOTION for Downward Departure Government's Motion for Downward Departure by USA as to Rejeanne Collier. (Marangola, Robert) (Entered: 08/21/2012)

08/22/2012 30 TEXT ORDER as to Rejeanne Collier granting government's request for adjournment. Sentencing reset for 9/11/2012 03:00 PM before Hon. Charles J. Siragusa. Copy of text order forwarded to U.S. Probation Office. Signed by Hon. Charles J. Siragusa on 8/21/12.(KJA) (Entered: 08/22/2012)

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Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 41 of 54
09/05/2012 31 TEXT ORDER as to Rejeanne Collier adjourning Sentencing pursuant to defendant's letter request for new counsel. Status Conference set for 9/11/2012 03:00 PM before Hon. Charles J. Siragusa. Sentencing to be rescheduled at Status Conference. Signed by Hon. Charles J. Siragusa on 9/5/12. (KJA) (Entered: 09/05/2012)
09/11/2012 32 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Robert Marangola appearing on behalf of government. Steven Slawinski appearing with defendant. Status Conference as to Rejeanne Collier held on 9/11/2012. Defendant requests assignment of new counsel. Court denies. Sentencing set for 10/12/2012 02:00 PM before Hon. Charles J. Siragusa. (Court Reporter Karen Bush.)(KJA) (Entered: 09/12/2012)
10/12/2012 34 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Robert Marangola appearing on behalf of government. Steven Slawinski appearing with defendant. Sarah Whitcomb appearing for probation. Sentencing held on 10/12/2012 for Rejeanne Collier (2), Count 1. Defendant is sentenced to the custody of the Bureau of Prisons for a term of Two Hundred Twenty-Eight (228) months (cost of incarceration fee waived); fine of $1,700 (interest waived); $100 special assessment; supervised release upon release from imprisonment for a term of Ten (10) years; and other conditions as set forth. Complaint dismissed. (Court Reporter Karen Bush.)(KJA) (Entered: 10/16/2012)
10/15/2012 33 PRESENTENCE INVESTIGATION REPORT (Sealed) as to Rejeanne Collier (TO) (Entered: 10/16/2012)
10/18/2012 35 JUDGMENT as to Rejeanne Collier (2), Count(s) 1, Defendant is sentenced to the custody of the Bureau of Prisons for a term of Two Hundred Twenty-Eight (228) months (cost of incarceration fee waived); fine of $1,700 (interest waived); $100 special assessment; supervised release upon release from imprisonment for a term of Ten (10) years; and other conditions as set forth.. Additional certified copies forwarded to USPO, USM, US Attorney, Debt Collection, Financial Department.. Signed by Hon. Charles J. Siragusa on 10/16/2012.(TO) (Entered: 10/18/2012)
10/29/2012 36 NOTICE OF APPEAL 35 Judgment. (FPD appointment, no fee required) (TA) (Entered: 10/29/2012)
11/01/2012 37 CLERKS CERTIFICATE/INDEX as to Rejeanne Collier filed and electronically sent to Court of Appeals (Attachments: # 1 Index)(TA) (Entered: 11/01/2012)
12/06/2012 38 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Rejeanne Collier held on 10/12/2012 before Judge Charles J. Siragusa. Court Reporter/Transcriber Karen Bush, Telephone number 585-613-4312. 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. Redaction Request due 12/27/2012. Redacted Transcript Deadline set for 1/7/2013. Release of Transcript Restriction set for 3/6/2013. (TA) (Entered: 12/07/2012)
12/06/2012 39 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Rejeanne Collier held on 1/13/2012 before Judge Charles J. Siragusa. Court Reporter/Transcriber Karen Bush, Telephone number 585-613-4312. 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. Redaction Request due 12/27/2012. Redacted Transcript Deadline set for 1/7/2013. Release of Transcript Restriction set for 3/6/2013. (TA) (Entered: 12/07/2012)
09/25/2013 40 MANDATE of USCA (certified copy) as to Rejeanne Collier re 37 Clerks Certificate, 36 Notice of Appeal (TA) (Entered: 09/25/2013)
10/21/2013 41 MOTION to Reduce Sentence by Rejeanne Collier. (TA) (Entered: 10/22/2013)
10/21/2013 42 MOTION for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense 18 USC 3582 for Rejeanne Collier (2) re Count 1 filed by Rejeanne Collier. (TA) (Entered: 10/22/2013)
10/21/2013 43 MOTION to Vacate under 28 U.S.C. 2255 by Rejeanne Collier. (TA) Civil case 6:13-cv-06576 opened. (Entered: 10/22/2013)
10/30/2013 44 ORDER as to Rejeanne Collier re 43 MOTION to Vacate under 28 U.S.C. 2255 filed by Rejeanne Collier, (Answer/Response with memo of law due by 12/11/2013). Signed by Hon. Charles J. Siragusa on 10/28/13.(TA) (Entered: 10/30/2013)
11/05/2013 45 EXHIBIT by Rejeanne Collier in support of 43 MOTION to Vacate under 28 U.S.C. 2255 (TA) (Entered: 11/06/2013)
11/06/2013 46 ORDER denying 42 Motion to Reduce Sentence re Crack Cocaine Offense - 18:3582 for Rejeanne Collier. Signed by Hon. Charles J. Siragusa on 11/4/2013.(TA) (Entered: 11/07/2013)
11/18/2013 47 MOTION to Dismiss Government's Motion to Dismiss the Petitioner's Motion Pursuant to 28 U.S.C. § 2255 by USA as to Rejeanne Collier. (Attachments: # 1 Exhibit 1-3)(Marangola, Robert) (Entered: 11/18/2013)
12/17/2013 48 ORDER denying 41 Motion to Reduce Sentence as to Rejeanne Collier (2); denying 43 Motion to Vacate (2255) as to Rejeanne Collier (2). Signed by Hon. Charles J. Siragusa on 12/16/13.(TA) Civil Case 6:13-cv-06576-CJS closed. (Entered: 12/17/2013)
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Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 42 of 54
12/30/2013 49 MOTION FOR AN EXTENSION OF TIME AND NOTICE OF APPEAL as to 48 Order on Motion to Reduce Sentence, Order on Motion to Vacate (2255)(Fee due) (TA) (Entered: 12/30/2013)

01/10/2014 50 DECISION AND ORDER as to Rejeanne Collier denying defendant's motion for extension of time to appeal re 49 Notice of Appeal filed by Rejeanne Collier. Signed by Hon. Charles J. Siragusa on 1/9/14.(KAP) (Entered: 01/10/2014)

02/11/2014 51 LETTER ORDER as to Rejeanne Collier denying defendant's request to revise decision. Court has attached copies of defendant's letter and attachments to this order. Signed by Hon. Charles J. Siragusa on 2/11/14.(KAP) (Entered: 02/11/2014)

08/05/2014 52 MANDATE of USCA (certified copy) as to Rejeanne Collier re 49 Notice of Appeal; ORDERED that the appeal from the denial of the Federal Rule of Criminal Procedure 35(b) motion is DISMISSED for lack of jurisdiction; Accordingly, Appellants IFP motion is DENIED as moot. (TA) (Entered: 08/05/2014)

06/04/2015 53 NOTICE OF ATTORNEY APPEARANCE: Peter J. Pullano appearing for Rejeanne Collier (Pullano, Peter) (Entered: 06/04/2015)

06/04/2015 54 MOTION to Reduce Sentence - USSC Amendment by Rejeanne Collier. (Attachments: # 1 Certificate of Service Peter J. Pullano, Esq.)(Pullano, Peter) Modified on 6/7/2015 (LB). (Entered: 06/04/2015)

06/05/2015

E-Filing Notification re 54 MOTION: Incorrect event used to electronically file document. For future reference, use Motion to Reduce Sentence - USSC Amendment event. No action required, court will correct entry description. (LB) (Entered: 06/07/2015)

06/05/2015 55 USSC TEXT ORDER as to Rejeanne Collier. The defendant has filed a Motion to Reduce Sentence under 18 U.S.C. Section 3582(c)(2).IT IS HEREBY ORDERED, that pursuant to the District Procedures for Retroactive Application of the 2014 Drug Guidelines Amendment, the United States Probation Office for the Western District of New York shall distribute an Abbreviated Supplemental Pre-Sentence Report to the Court, the United States Attorney's Office, and the Federal Public Defender's Office within 30 days of the entry date of the defendant's motion.FURTHER, that the United States Attorney's Office shall file a response to the defendant's motion within 30 days of its receipt of the Abbreviated Supplemental Pre-Sentence Report, either in opposition to the motion or indicating that it does not oppose the motion.FURTHER, that if the United States Attorney's Office files a submission in opposition to the defendant's motion, the Federal Public Defender's Office may file a reply within 30 days of the entry date of the United States Attorney's Office's submission.FURTHER, that oral argument will be scheduled by the court, if necessary, by separate order.SO ORDERED. Signed by Hon. Charles J. Siragusa on 6/5/2015. (LB) (Entered: 06/07/2015)

07/16/2015 56 TEXT ORDER as to Rejeanne Collier re 54 MOTION to Reduce Sentence - USSC Amendment filed by Rejeanne Collier granting government's request for extension of time. ( Responses due by 7/28/2015.). Signed by Hon. Charles J. Siragusa on 7/16/15.(KAP) (Entered: 07/16/2015)

07/28/2015 57 RESPONSE to Motion by USA as to Rejeanne Collier re 54 MOTION to Reduce Sentence - USSC Amendment Government's Opposition to Motion Pursuant to 18 U.S.C. § 3582(c)(2) (Attachments: # 1 Exhibit A-C)(Marangola, Robert) (Entered: 07/28/2015)

09/14/2015 58 ORDER REDUCING SENTENCE - USSC Amendment as to Rejeanne Collier (2), Count(s) 1, Sentence reduced from Two Hundred Twenty-Eight (228) months to 186 months effective 11/1/15; fine of $1,700 (interest waived); $100 special assessment; supervised release upon release from imprisonment for a term of Ten (10) years; and other conditions as set forth.. Signed by Hon. Charles J. Siragusa on 9/14/15.(TF) (Entered: 09/17/2015)

01/13/2016 59 MOTION GOVERNMENT'S MOTION TO AUTHORIZE PAYMENT FROM INMATE TRUST ACCOUNT by USA as to Rejeanne Collier. (Attachments: # 1 Certificate of Service)(Robinson, Kevin) (Entered: 01/13/2016)

01/14/2016 60 ORDER granting 59 Motion authorizing payment as to Rejeanne Collier (2). Signed by Hon. Charles J. Siragusa on 1/14/16.(KAP) (Entered: 01/14/2016)

02/26/2016 61 SATISFACTION OF JUDGMENT as to Rejeanne Collier by USA (Robinson, Kevin) (Entered: 02/26/2016)

09/25/2017 62 MOTION to Reduce Sentence - USSC Amendment by Rejeanne Collier (Attachments: # 1 envelope) (TF) (Entered: 09/28/2017)

10/30/2017 63 ORDER denying 62 Motion to Reduce Sentence - USSC Amendment as to Rejeanne Collier (1). Signed by Hon. Charles J. Siragusa on 10/31/17.(TF) (Entered: 11/01/2017)

11/01/2017

Copy of 63 order mailed to Collier (TF) (Entered: 11/01/2017)

04/16/2020 64 MOTION to Reduce Sentence PURSUANT TO 18 U.S.C. § 3582(c)(1)(A)(i) (COMPASSIONATE RELEASE) by Rejeanne Collier. (Slawinski, Steven) (Entered: 04/16/2020)

04/17/2020 65 TEXT ORDER as to Rejeanne Collier re 64 MOTION to Reduce Sentence PURSUANT TO 18 U.S.C. § 3582(c)(1)(A)(i) (COMPASSIONATE RELEASE) filed by Rejeanne Collier, ( Responses due by 4/24/2020.) 04/17/2020view779 An application for compassionate release having been made by Defendant, Rejeanne Collier, ECF #64, the Court directs the Government and the United States

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Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 43 of 54
Probation to respond on or before 4/24/2020.The United States Probation Department shall also include in its response to the Court information regarding the status of Covid-19 at Defendants facility, as well as any other relevant information provided the Bureau of Prisons. The Court will thereafter render a formal written decision or text order.SO ORDERED.. Signed by Hon. Charles J. Siragusa on 4/17/20. Copy of this NEF forwarded electronically to Roosevelt Smith, USPO.(KAP) (Entered: 04/17/2020). Signed by Hon. Charles J. Siragusa on 4/17/20.(KAP) (Entered: 04/17/2020) 04/24/2020 66 RESPONSE to Motion by USA as to Rejeanne Collier re 64 MOTION to Reduce Sentence PURSUANT TO 18 U.S.C. § 3582(c)(1)(A)(i) (COMPASSIONATE RELEASE) Letter to Hon. Charles J. Siragusa re Compassionate Release dated April 24, 2020 (Marangola, Robert) (Entered: 04/24/2020)
Copyright © 2020 LexisNexis CourtLink, Inc. All rights reserved. *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY ***
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EXHIBIT D

Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 45 of 54

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llllasqingtnn, E. QI. 205.30

March 26, 2020

MEMORANDUM FOR DIRECTOR OF BUREAU PRISONS

FROM:

( ) f~ THE ATTORNEY GENERAL

SUBJECT:

Prioritization of Home Confinement As Appropriate in Response to COVID-19 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 mission 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-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. 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 ofyour various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-1 9 pandemic. 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.
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 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 46 of 54

Memorandum from the Attorney General

Page 2

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

Pandemic

• The security 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 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 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 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;
• 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 imnate seeks home confinement. We should not grant home confinement to inmates when doing so is likely to increase their risk of contracting COVID-19. 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 risk 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 means 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-1 9 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 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 47 of 54
EXHIBIT E

Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 48 of 54
(@fffre of t~e Attarntt! (irnrrul
1'a1tJtiugtnn,'ID. QI. 205:30
April 3, 2020

MEMORANDUM FOR DIRECTOR OF BUREAU OF PRISONS

FROM: SUBJECT:

THE ATTORNEY GENERA~~
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 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 49 of 54

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.

Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 50 of 54

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 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 51 of 54
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Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 52 of 54

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ůŵŽŶƚĞƐ ƌĚŝůĂ

ZĂĨĂĞů :ŽƌŐĞKƌůĂŶĚŽ

ĞůůĂŵǇ

dĂŬĂŝYƵŶƚĂǇ

ƌĂĚǇ

<ĞůůǇ

ƌŝƚŽ

:ŽŶĂƚŚĂŶ

ĂůůĂŶ

DŝĐŚĂĞů

ĂƌƉĞŶƚĞƌ
ŽůǀŝŶ
ŽƐƚŽŶ ƌƵǌ

ĂŶŝĞů
>ĂƚƌŝĐĞ
ŶƚƌƵŵ DŝŬĞ

ĞůŐĂĚŽ ĐŚĞǀĂƌƌŝĂ

ƌŶĞƐƚŽ>ƵŝƐ ŚƌŝƐƚŝĂŶ

&ƌǇĞ

EĂŶĐǇ

'ĂŐŶĞ 'ŝůĞŶŽ
'ŝůůŝĂŵ

:ŽĚŝŝůƐ WĂƵů
ĞƌƌŝĐŬ

'ŽŵĞǌ 'ŽŶǌĂůĞǌ

'ĂƌƌĞƚ ůďĞƌƚŽ

'ŽŶǌĂůĞǌ 'ŽŶǌĂůĞǌ

&ƌĞĚĚŝĞ ,ĞƌƐŽŶ

ŽĐŬĞƚEƵŵďĞƌ

h^

KW&ĂĐŝůŝƚǇ

ϯ͗ϭϵͲĐƌͲϭϳϭͲs>

>ĂƵƌĞŶůĂƌŬ

&DĞǀĞŶƐ

ϯ͗ϬϱͲĐƌͲϱϴͲ^Zh ϯ͗ϬϯͲĐƌͲϮϲϰͲ^Zh

,ĂůŚĞŶ WĞƚĞƌDĂƌŬůĞ

&/ĂŶďƵƌǇ DŽƐŚĂŶŶĂŶsĂůůĞǇ
ŽƌƌĞĐƚŝŽŶĂůĞŶƚĞƌ

ϯ͗ϭϵͲĐƌͲϭϮϯͲ:D :ŽĐĞůǇŶ<ĂŽƵƚǌĂŶŝƐ EŽƚŝŶKWĐƵƐƚŽĚǇ

ϯ͗ϮϬͲĐǀͲϱϭϬͲDW^ ,ĞĂƚŚĞƌŚĞƌƌǇ

&/ĂŶďƵƌǇ

ϯ͗ϭϴͲĐƌͲϴϭͲ^Zh

'ŽƌĚŽŶ,Ăůů

DƌŽŽŬůǇŶ

ZƵůŝŶŐͬKƌĚĞƌͬhƉĚĂƚĞƐ
ĞŶŝĞĚǁŝƚŚŽƵƚƉƌĞũƵĚŝĐĞϰͬϮϭͬϮϬϮϬ DŽƚŝŽŶŐƌĂŶƚĞĚŽŶϰͬϵͬϮϬϮϬ DŽƚŝŽŶ'ZEdϱͬϭͬϮϬϮϬ
DŽƚŝŽŶE/ǁŝƚŚŽƵƚƉƌĞũƵĚŝĐĞ ĞŶŝĞĚǁͬŽƉƌĞũƵĚŝĐĞϰͬϮϬͬϮϬϮϬ
DŽƚŝŽŶ'ƌĂŶƚĞĚ

ŝƚĂƚŝŽŶ
hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ƌŝƐƉŝŶ͕EŽ͘ϯ͗ϭϵͲZͲϭϳϭ;s>Ϳ͕ŽĐ͘ϱϲ;͘ŽŶŶ͘Ɖƌ͘Ϯϭ͕ϮϬϮϬͿ ;ĚĞŶǇŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ůŵŽŶƚĞƐ͕EŽ͘ϯ͗ϬϱͲZͲϱϴ;^ZhͿ͕ϮϬϮϬt>ϭϴϭϮϳϭϯ;͘ŽŶŶ͘ Ɖƌ͘ϵ͕ϮϬϮϬͿ;ŐƌĂŶƚŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ
hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ZƵďŝĞƌĂͲ,ĞƌƌĞƌĂĞƚĂů͕͘EŽ͘ϯ͗ϭϵͲZͲϭϮϯ;:DͿ͕ŽĐ͘ϰϰϲ;͘ ŽŶŶ͘Ɖƌ͘ϮϮ͕ϮϬϮϬͿ;ĚĞŶǇŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ ƌĂĚǇǀ͘tĂƌĚĞŶĞƚĂů͕͘EŽ͘ϯ͗ϮϬͲsͲϱϭϬ;DW^Ϳ͕ŽĐ͘ϳ;͘ŽŶŶ͘Ɖƌ͘ϮϬ͕ϮϬϮϬͿ ;ĚĞŶǇŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ hŶŝƚĞĚ^ƚĂƚĞƐǀ͘&ŝůǇĂǁĞƚĂů͕͘EŽ͘ϯ͗ϭϴͲZͲϴϭ;^ZhͿ͕ŽĐ͘ϭϬϮϵ;͘ŽŶŶ͘Ɖƌ͘ϲ͕ ϮϬϮϬͿ;ŐƌĂŶƚŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ

ϯ͗ϭϵͲĐƌͲϭϰϬͲs>
ϯ͗ϭϯͲĐƌͲϮϮϲͲZE ϯ͗ϭϵͲĐƌͲϭϳϵͲ: ϯ͗ϭϲͲĐƌͲϭϮϳͲ^Zh ϯ͗ϮϬͲĐƌͲϰϴͲ:D
ϯ͗ϭϴͲZͲϭϳ;sͿ

>ĂƵƌĞŶůĂƌŬ ĂǀĞEŽǀŝĐŬΘ EĞĞƌĂũWĂƚĞů ĞďŽƌĂŚ^ůĂƚĞƌ :ĞŶŶŝĨĞƌ>ĂƌĂŝĂ DĂƌŐĂƌĞƚŽŶŽǀĂŶ
ĂǀĞsĂƚƚŝ

ĞĨĞŶĚĂŶƚǁĂƐ ƐĞŶƚĞŶĐĞĚďƵƚŚĂƐŶŽƚ ǇĞƚƌĞƉŽƌƚĞĚƚŽKW
DƌŽŽŬůǇŶ &/WŚŝůĂĚĞůƉŚŝĂ
&/ĂŶďƵƌǇ tǇĂƚƚ
&/ĂŶďƵƌǇ

DŽƚŝŽŶE/ KƌŝŐŝŶĂůŵŽƚŝŽŶĚĞŶŝĞĚŽŶƉƌŝůϮ͕ϮϬϮϬ͘DŽƚŝŽŶƚŽ
ZĞĐŽŶƐŝĚĞƌĨŝůĞĚŽŶϰͬϳͬϮϬϮϬĂŶĚE/ŽŶ ϰͬϭϬͬϮϬϮϬ
&ŽůůŽǁŝŶŐƚĞůĞƉŚŽŶŝĐŚĞĂƌŝŶŐŽŶƉƌŝůϮ͕ϮϬϮϬ͕d ŐƌĂŶƚĞĚĚĞĨĞŶĚĂŶƚ͛ƐŵŽƚŝŽŶƚŚĞƐĂŵĞĚĂǇ͘
DŽƚŝŽŶ'ƌĂŶƚĞĚϰͬϭϲͬϮϬϮϬ DŽƚŝŽŶE/ϰͬϭϴͬϮϬ
DŽƚŝŽŶ'ZEdďĂƐĞĚŽŶĚĞĨĞŶĚĂŶƚ͛Ɛ ĐŽŶĚŝƚŝŽŶƐͬƌŝƐŬĨĂĐƚŽƌƐŽĨŽďĞƐŝƚǇ͕ŽďƐƚƌƵĐƚĞĚƐůĞĞƉ
ĂƉŶĞĂĂŶĚƉƐŽƌŝĂƐŝƐ

hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ĂůůĂŶ͕EŽ͘ϯ͗ϭϵͲZͲϭϰϬ;s>Ϳ͕ϮϬϮϬt>ϭϵϲϵϰϯϮ;͘ŽŶŶ͘Ɖƌ͘ Ϯϰ͕ϮϬϮϬͿ
hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ĂƌƉĞŶƚĞƌĞƚĂů͕͘EŽ͘ϯ͗ϭϯͲZͲϮϮϲ;ZEͿ͕ŽĐ͘ϱϮϱ;͘ŽŶŶ͘Ɖƌ͘ ϭϬ͕ϮϬϮϬͿ;ĚĞŶǇŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ŽůǀŝŶ͕EŽ͘ϯ͗ϭϵZϭϳϵ;:Ϳ͕ϮϬϮϬt>ϭϲϭϯϵϰϯ;͘ŽŶŶ͘Ɖƌ͘Ϯ͕ ϮϬϮϬͿ hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ŽƐƚŽŶ͕EŽ͘ϯ͗ϭϲͲZͲϭϮϳ;^ZhͿ͕ŽĐ͘ϵϴ;͘ŽŶŶ͘Ɖƌ͘ϭϲ͕ϮϬϮϬͿ ;ŐƌĂŶƚŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ

ϯ͗ϭϳͲĐƌͲϰϰͲDW^

ĂǀĞsĂƚƚŝ

&/ůůĞŶǁŽŽĚ

DŽƚŝŽŶ'ZEdϱͬϰͬϮϬϮϬ

ϯ͗ϭϳͲĐƌͲϭϬϴͲs> WĞƚĞƌ:ŽŶŐďůŽĞĚ

ϮϮϬͲϭϭϲϵ ϯ͗ϭϵͲĐƌͲϭϲϭͲs
ϯ͗ϭϱͲĐƌͲϲϯͲ:,

ĂǀŝĚ,ƵĂŶŐ ŽƵŐDŽƌĂďŝƚŽ
EĂƚĞ'ĞŶƚŝůĞ

ϯ͗ϭϳͲĐƌͲϮϳϯͲ:D WĞƚĞƌ:ŽŶŐďůŽĞĚ ϯ͗ϭϴͲĐƌͲϯϭϱͲ< ƌŝĂŶ>ĞĂŵŝŶŐ

ϯ͗ϬϲͲĐƌͲϭϴͲsͲϰ EĂƚĂƐŚĂ&ƌĞŝƐŵƵƚŚ ϯ͗ϭϳͲĐƌͲϲϮͲ:D EĂƚĂƐŚĂ&ƌĞŝƐŵƵƚŚ

&/'ƌĞĞŶǀŝůůĞ
&/ĂŶďƵƌǇ &/^ĐŚƵǇůŬŝůů h^W,ĂǌĞůƚŽŶ

DŽƚŝŽŶE/ϱͬϮͬϮϬϮϬ
DŽǀĞĚƚŽǀŽůƵŶƚĂƌŝůǇǁŝƚŚĚƌĂǁŽŶϱͬϰͬϮϬ DŽƚŝŽŶ'ZEdϰͬϭϳͬϮϬϮϬ DŽƚŝŽŶE/ϰͬϮϳͬϮϬϮϬ

hŶŝƚĞĚ^ƚĂƚĞƐǀ͘'ĂŐŶĞ͕EŽ͘ϯ͗ϭϴͲZͲϮϰϮ;s>Ϳ͕ϮϬϮϬt>ϭϲϰϬϭϱϮ;͘ŽŶŶ͘Ɖƌ͘ Ϯ͕ϮϬϮϬͿ;ĚĞŶǇŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůŝĞĨ;ĐƌŝŵŝŶĂůŵĂƚƚĞƌŝƐŶŽǁďĂĐŬ ŽŶƚŚĞKƉĞŶĂƐĞƐĐŚĂƌƚͿ
hŶŝƚĞĚ^ƚĂƚĞƐǀ͘'ŝůůŝĂŵ͕EŽ͘ϯ͗ϭϱͲZͲϲϯ;:,Ϳ͕ŽĐ͘ϭϭϵ;͘ŽŶŶ͘Ɖƌ͘Ϯϳ͕ϮϬϮϬͿ ;ĚĞŶǇŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ

,ĂůĨǁĂǇ,ŽƵƐĞ &DĞǀĞŶƐ

ϰͬϮŵŽƚŝŽŶE/ŽŶϰͬϯ͖ZĞŶĞǁĞĚDŽƚŝŽŶĨŝůĞĚϰͬϵ ǁĂƐ'ZEdŽŶϰͬϭϬĂĨƚĞƌƚŚĞƌĞǁĂƐĂƉŽƐŝƚŝǀĞ Ks/ͲϭϵƚĞƐƚƌĞƐƵůƚĂƚƚŚĞŚĂůĨǁĂǇŚŽƵƐĞ :ƵĚŐĞEŝƚĨŽƌĨĂŝůƵƌĞƚŽĞǆŚĂƵƐƚ͘

WŚŝůĂĚĞůƉŚŝĂZZD &/ůůĞŶǁŽŽĚ

ĞĨĞŶƐĞĨŝůĞĚZĞƉůǇDĞŵŽƌĂŶĚƵŵϰͬϭϯͬϮϬ͖

'ŽǀĞƌŶŵĞŶƚ͛Ɛ^ƵƉƉůĞŵĞŶƚĂůZĞƐƉŽŶƐĞƚŽĞĨĞŶĚĂŶƚΖƐ hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ZŽƐĂĚŽĞƚĂů͕͘EŽ͘ϯ͗ϬϲͲZͲϭϴ;sͿ͕ŽĐ͘ϯϳϲ;͘ŽŶŶ͘Ɖƌ͘Ϯϰ͕

DŽƚŝŽŶĨŝůĞĚϰͬϭϰͬϮϬ͖DŽƚŝŽŶ'ZEdϰͲϮϰͲϮϬϮϬ ϮϬϮϬͿ;ŐƌĂŶƚŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ

hŶŝƚĞĚ^ƚĂƚĞƐǀ͘'ŽŶǌĂůĞǌĞƚĂů͕͘EŽ͘ϯ͗ϭϳͲZͲϲϮ;:DͿ͕ŽĐ͘ϭϬϭϭ;͘ŽŶŶ͘Ɖƌ͘

DŽƚŝŽŶE/ǁŝƚŚŽƵƚƉƌĞũƵĚŝĐĞ

ϯϬ͕ϮϬϮϬͿ;ĚĞŶǇŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ

'ƌŝĨĨŝŶ

:ŽƐĞƉŚ

ϯ͗ϭϵͲĐƌͲϵϭͲDW^

ĂǀŝĚ,ƵĂŶŐ

tǇĂƚƚ

DŽƚŝŽŶE/ŽŶϱͬϰͬϮϬďǇDW^

WĂŐĞϭ

Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 53 of 54

>ĂƐƚEĂŵĞ &ŝƌƐƚEĂŵĞ

,ĂƌƌŝƐ :ĞƉƐŽŶ

ŶƚŚŽŶǇ ŶƚŽŶ

:ŽŚŶƐŽŶ >ǇŽŶ

ĂƌŽŶ:͘ ĂŶŝĞů

DĐĂƌƚŚǇ DŽƌĂůĞƐ EŽƌƌŝƐ
WĂůŝĞ͕/// WĞƌĞǌ WĞƚĞƌƐ

:ŽŚŶ:͘ ŶƚŚŽŶǇ ĂƌƌǇĐŬ
:ŽŚŶ:͘ ůůŝŽƚ EŽƌŵĂŶ

ZĞƐƐůĞƌ ZŝǀĞƌĂ

WĞƚĞƌ KŵĂƌ

Ks/ͲϭϵDŽƚŝŽŶƐĨŽƌŽŵƉĂƐƐŝŽŶĂƚĞZĞůĞĂƐĞ >K^^^

ŽĐŬĞƚEƵŵďĞƌ

h^

ϯ͗ϬϰͲĐƌͲϯϲϬͲZE ϯ͗ϭϵͲĐƌͲϳϯͲs>

dŽŶǇ<ĂƉůĂŶ ĞďŽƌĂŚ^ůĂƚĞƌ

ϯ͗ϭϲͲĐƌͲϮϰͲ:D

^ƵƐĂŶtŝŶĞƐ

ϯϯ͗͗ϭϭϵϳͲĐĐƌƌͲϭϮϯϯϴϬͲ::,, ϯ͗ϵϮͲĐƌͲϳϬͲ:,;ϵϮͲ
ĐƌͲϳϬĐĂƐĞŝƐĂ ϯ͗ϭϵͲĐƌͲϭϮϭͲ< ϯ͗ϭϳͲĐƌͲϭϬϲ;^ZhͿ ϯ͗ϭϴͲĐƌͲϮϰϯ;^ZhͿ

ZĂǇDŝůůĞƌ
:ŽŚŶƵƌŚĂŵ ŽƵŐDŽƌĂďŝƚŽ ŽƵŐDŽƌĂďŝƚŽ

ϯ͗ϭϴͲĐƌͲϭϯϯͲ^Zh

,ĂŶŬ<ŽƉĞů

KW&ĂĐŝůŝƚǇ &/zĂǌŽŽ
tǇĂƚƚ

ͬͬ

ZƵůŝŶŐͬKƌĚĞƌͬhƉĚĂƚĞƐƉ

ŝƚĂƚŝŽŶ

ƌĞĚƵĐĞĚƚŽϮϲϬŵŽŶƚŚƐĂŶĚŚŝƐƚĞƌŵŽĨƐƵƉĞƌǀŝƐĞĚ

ƌĞůĞĂƐĞŝƐƌĞĚƵĐĞĚƚŽƐŝǆǇĞĂƌƐ͘ŶĂŵĞŶĚĞĚũƵĚŐŵĞŶƚ

dŐƌĂŶƚĞĚŵŽƚŝŽŶŽŶƉƌŝůϭ͕ϮϬϮϬ;ĂŵĞŶĚĞĚŽƌĚĞƌŽŶ

ƉƌŝůϮ͕ϮϬϮϬͿ

hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ŶƚŽŶ:ĞƉƐĞŶ͕ϯ͗ϭϵͲĐƌͲϳϯ͕Ŭƚ͘ϰϭ;͘ŽŶŶ͘Ɖƌ͘ϭͿ

tǇĂƚƚ ĞǀĞŶƐ&D
DƌŽŽŬůǇŶ tǇĂƚƚ

:ƵĚŐĞDĞǇĞƌE/ĂƌŽŶ:ŽŚŶƐŽŶ͛ƐŵŽƚŝŽŶĨŽƌ ĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ;ǁŝƚŚŽƵƚƉƌĞũƵĚŝĐĞͿďĂƐĞĚŽŶ ƚŚĞϯϬͲĚĂǇĞǆŚĂƵƐƚŝŽŶƌĞƋƵŝƌĞŵĞŶƚ͘dŚĞƌĞƐƚŝƚƵƚŝŽŶ ŝƐƐƵĞǁĂƐƚŽĐŽƌƌĞĐƚƚŚĞŽƌĚĞƌƌĞŐĂƌĚŝŶŐŽŶĞǀŝĐƚŝŵ͘
DŽƚŝŽŶE/ǁŝƚŚŽƵƚƉƌĞũƵĚŝĐĞĨŽƌĨĂŝůƵƌĞƚŽ ĞǆŚĂƵƐƚĂĚŵŝŶŝƐƚƌĂƚŝǀĞƌĞŵĞĚŝĞƐ

'ƌĂŶƚĞĚ͕ϰͬϴͬϮϬϮϬ DŽƚŝŽŶE/ϱͬϭͬϮϬϮϬ

hŶŝƚĞĚ^ƚĂƚĞƐǀ͘DĐĂƌƚŚǇ͕EŽ͘ϯ͗ϭϳͲZͲϬϮϯϬ;:,Ϳ͕ϮϬϮϬt>ϭϲϵϴϳϯϮ;͘ŽŶŶ͘ Ɖƌ͘ϴ͕ϮϬϮϬͿ

ZĂǇƌŽŽŬ&/

'ƌĂŶƚĞĚϰͬϭϲͬϮϬϮϬ

hŶŝƚĞĚ^ƚĂƚĞƐǀ͘EŽƌƌŝƐ͕EŽ͘ϭϳͲĐƌͲϭϬϲ;^ZhͿ͕ϯ͗ϭϴͲĐƌͲϮϰϯ;^ZhͿ;Ɖƌ͘ϭϲ͕ϮϬϮϬͿ

ŽŽůŝĚŐĞ,ŽƵƐĞ,ĂůĨͲ

tĂǇ,ŽƵƐĞ

DŽƚŝŽŶ'ƌĂŶƚĞĚǁŝƚŚ'ŽǀĞƌŶŵĞŶƚĐŽŶƐĞŶƚϰͬϭϱͬϮϬϮϬ

ϯ͗ϭϮͲĐƌͲϮϱϭͲtd
ϯͲϭϴͲĐƌͲϭϴϴͲs
ϯ͗ϭϳͲĐƌͲϭϮϯͲs ϯ͗ϭϳͲĐƌͲϭϱϵ͕ϭϲϬ
ĂŶĚϮϯϮͲs>

ZĂŚƵů<ĂůĞ ůĞŶĂŽƌŽŶĂĚŽĂŶĚ
dŽŶǇ<ĂƉůĂŶ
<ŝƚ^ĐŚŵŝĞƐƐĞƌ
'ŽƌĚŽŶ,Ăůů

DƌŽŽŬůǇŶ &/^ĐŚƵǇůŬŝůů &/KƚŝƐǀŝůůĞ &/>ĞǁŝƐďƵƌŐĂŵƉ

'ƌĂŶƚĞĚϰͬϭϲͬϮϬϮϬ
DŽƚŝŽŶ'ZdϱͬϭͬϮϬϮϬ KWŝƐƌĞůĞĂƐŝŶŐZĞƐƐůĞƌƚŽŚŽŵĞĐŽŶĨŝŶĞŵĞŶƚĨŽƌƚŚĞ
ƌĞŵĂŝŶĚĞƌŽĨŚŝƐƐĞŶƚĞŶĐĞ
DŽƚŝŽŶE/

ZŽŵĂŶ

DŝůƚŽŶ

^ĂĐĐŽ

ŶĚƌĞǁ

^ĂŬĞůĂƌĂŬŝƐ ŚƌŝƐƚŽƉŚĞƌ:͘

^ĂůǀĂŐŶŽ ůĞǆŶĚĞƌ

^ĂŶĐŚǌ

ZĂŵŽŶ

^ĞƌĨĂƐƐ

ƌǇƐƚĂů

ϯ͗ϬϲͲĐƌͲϮϲϴͲ:

,ĂŶŬ<ŽƉĞů

ϯ͗ϭϲͲĐƌͲϭϯϮͲDW^

ĂǀŝĚ,ƵĂŶŐ

ϯ͗ϭϴͲĐƌͲϮϰϴͲ:,

DŝŬĞDĐ'ĂƌƌǇ

ϱ͗ϬϮͲĐƌͲϬϬϬϱϭͲ>< :ŽŚŶ>ĂƌƐŽŶ;EEzͿ

ϯ͗ϭϴͲĐƌͲϭϰϬͲs>

ƌŝĂŶ>ĞĂŵŝŶŐ

ϯ͗ϮϬͲĐǀͲϱϭϯͲDW^ WĂƚƌŝĐŝĂ^ƚŽůĨŝŽůůŝŶƐ

&/dĂůůĂĚĞŐĂ͕ ůĂďĂŵĂ
&/KƚŝƐǀŝůůĞ &/ĂŶďƵƌǇ &/ĂŶďƵƌǇ DƌŽŽŬůǇŶ &/ĂŶďƵƌǇ

DŽƚŝŽŶ'ZEdϰͬϮϬͬϮϬϮϬ

hŶŝƚĞĚ^ƚĂƚĞƐǀ͘ZŽŵĂŶ͕EŽ͘ϯ͗ϬϲZϮϲϴ;:Ϳ͕ϮϬϮϬt>ϭϵϭϱϮϯϵ;͘ŽŶŶ͘Ɖƌ͘ ϮϬ͕ϮϬϮϬͿ

tŝƚŚĚƌĂǁŶďĞĐĂƵƐĞKWĨƵƌůŽƵŐŚĞĚƚŚĞĚĞĨĞŶĚĂŶƚ DŽƚŝŽŶE/ϰͬϮϮͬϮϬϮϬ DŽƚŝŽŶ'ZEdϰͬϮϯͬϮϬϮϬ

hŶŝƚĞĚ^ƚĂƚĞƐǀ͘^ĂŬĞůĂƌĂŬŝƐ͕EŽ͘ϯ͗ϭϴͲZͲϮϰϴ;:,Ϳ͕ŽĐ͘ϳϲ;͘ŽŶŶ͘Ɖƌ͘ϮϮ͕ ϮϬϮϬͿ;ĚĞŶǇŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ hŶŝƚĞĚ^ƚĂƚĞƐǀ͘^ĂůǀĂŐŶŽĞƚĂů͕͘EŽ͘ϱ͗ϬϮͲZͲϱϭ;><Ϳ͕ŽĐ͘ϭϭϲϲ;E͘͘E͘z͘Ɖƌ͘ Ϯϯ͕ϮϬϮϬͿ;ŐƌĂŶƚŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ

DŽƚŝŽŶ'ZEdϰͬϮϮͬϮϬϮϬ DŽƚŝŽŶE/ǁŝƚŚŽƵƚƉƌĞũƵĚŝĐĞ

^ĞƌĨĂƐƐǀ͘tĂƌĚĞŶ͕EŽ͘ϯ͗ϮϬͲsͲϱϭϯ;DW^Ϳ͕ŽĐ͘ϱ;͘ŽŶŶ͘Ɖƌ͘ϮϬ͕ϮϬϮϬͿ ;ĚĞŶǇŝŶŐŵŽƚŝŽŶĨŽƌĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůŝĞĨ

^ŚĞƌŵĂŶ ŚƌŝƐƚŽƉŚĞƌ>ĂŵŽŶƚ ϯ͗ϬϴͲĐƌͲϰͲ:,

ƌĞŶĚĂŶ<ĞĞĨĞ

tǇĂƚƚ

DŽƚŝŽŶE/ǁŝƚŚŽƵƚƉƌĞũƵĚŝĐĞϰͬϯϬͬϮϬϮϬ

WĂŐĞϮ

Case 3:20-cv-00569-MPS Document 24-2 Filed 05/05/20 Page 54 of 54

Ks/ͲϭϵDŽƚŝŽŶƐĨŽƌŽŵƉĂƐƐŝŽŶĂƚĞZĞůĞĂƐĞ >K^^^

>ĂƐƚEĂŵĞ &ŝƌƐƚEĂŵĞ

^ŵŝƚŚ

EĂƚŚĂŶŝĞů

^ŽƚŽ
^ƵĂƌĞǌ dǇƐŽŶ

DŝŐƵĞů
tŝůůŝĂŵůĂƵĚŝŽ DĂƌĐƵƐ

sĞŶĐĞͲ^ŵĂůů sĂŶĞƐƐĂ

tŝůůŝĂŵƐ

ĞǀŽŶ

tŝůůŝĂŵƐ

ĚǁĂƌĚ

tŝůůŝĂŵƐ

WĂƵů&ŝƚǌŐĞƌĂůĚ

ŽĐŬĞƚEƵŵďĞƌ ϯ͗ϭϲͲĐƌͲϰϴͲDW^

h^ EĂŶĐǇ'ŝĨĨŽƌĚ

ϯ͗ϭϱͲĐƌͲϭϮϬͲs

'ŽƌĚŽŶ,Ăůů

KW&ĂĐŝůŝƚǇ h^WDĂƌŝŽŶ
,ŽŵĞĂƌƌĞƐƚ

ZƵůŝŶŐͬKƌĚĞƌͬhƉĚĂƚĞƐ DŽƚŝŽŶE/ϰͬϭϳͬϮϬϮϬ

ŝƚĂƚŝŽŶ hŶŝƚĞĚ^ƚĂƚĞƐǀ͘^ŵŝƚŚ͕EŽ͘ϯ͗ϭϲͲZͲϰϴ;DW^Ϳ͕ϮϬϮϬt>ϭϵϬϯϭϲϬ;͘ŽŶŶ͘Ɖƌ͘ ϭϳ͕ϮϬϮϬͿ

^ŽƚŽǁĂƐŝŶĂŚĂůĨͲǁĂǇŚŽƵƐĞĂǁĂŝƚŝŶŐĚŝƐƉŽƐŝƚŝŽŶŽĨĂ ǀŝŽůĂƚŝŽŶŽĨƐƵƉĞƌǀŝƐĞĚƌĞůĞĂƐĞ͕ďƵƚŐŽƚĨƵƌůŽƵŐŚĞĚ ĨƌŽŵƚŚĞƌĞŝŶƚŽŚŽŵĞĂƌƌĞƐƚĂŶĚ͕ǁŚĞŶŚĞǁĂƐƚŽŐŽ ďĂĐŬ͕ƚŚĞƌĞǁĞƌĞKs/ƉŽƐŝƚŝǀĞƐƚŚĞƌĞ͕ƐŽŚĞĂƐŬĞĚ ƚŚĞĐŽƵƌƚƚŽĐŚĂŶŐĞŚŝƐĐŽŶĚŝƚŝŽŶƐƚŽůĞĂǀĞŚŝŵŽŶ
ŚŽŵĞĂƌƌĞƐƚƌĂƚŚĞƌƚŚĂŶƌĞƚƵƌŶƚŽƚŚĞŚĂůĨǁĂǇŚŽƵƐĞ͘ dŚĞũƵĚŐĞĂŐƌĞĞĚ͘dŚĞƌĞŝƐŶŽǁƌŝƚƚĞŶĚĞĐŝƐŝŽŶ͘

ϯ͗ϭϵͲĐƌͲϭϮϯͲ:D :ŽĐĞůǇŶ<ĂŽƵƚǌĂŶŝƐ ŚĞƐŚŝƌĞ͘/͘;^ƚĂƚĞͿ ϯ͗ϭϲͲĐƌͲϭϳϰͲtd ƌŝĂŶ>ĞĂŵŝŶŐ

DŽƚŝŽŶE/ϱͬϰͬϮϬϮϬ DŽƚŝŽŶ'ZEd

ϯ͗ϭϴͲĐƌͲϯϭͲ:D ϯ͗ϭϴͲĐƌͲϯϮϭͲ:, ϯ͗ϭϳͲĐƌͲϭϮϭͲs
ϯ͗ϭϵͲĐƌͲϭϭϳͲ:,

,ĂůŚĞŶ :ĞŶŶŝĨĞƌ>ĂƌĂŝĂ ^ĂƌĂůĂEĂŐĂůĂ
ĞďŽƌĂŚ^ůĂƚĞƌ

&/,ĂǌĞůƚŽŶ;^&&ʹ ƐĞĐƵƌĞĨĞŵĂůĞĨĂĐŝůŝƚǇͿ

DŽƚŝŽŶE/ϰͬϮϬͬϮϬϮϬ

&/dĂůůĂĚĞŐĂ &Žƌƚŝǆ
tǇĂƚƚ

DŽƚŝŽŶE/ǁŝƚŚŽƵƚƉƌĞũƵĚŝĐĞ DŽƚŝŽŶ'ZEdϰͬϮϰͬϮϬϮϬ

hŶŝƚĞĚ^ƚĂƚĞƐǀ͘tŝůůŝĂŵƐ͕EŽ͘ϯ͗ϭϳͲZͲϭϮϭͲ;sͿͲϭ͕ϮϬϮϬt>ϭϵϳϰϯϳϮ;͘ŽŶŶ͘ Ɖƌ͘Ϯϰ͕ϮϬϮϬͿ

:,'ZEdƚŚĞĚĞĨĞŶĚĂŶƚ͛ƐĐŽŵƉĂƐƐŝŽŶĂƚĞƌĞůĞĂƐĞ ŵŽƚŝŽŶĨŽůůŽǁŝŶŐƚŚĞƉƌŝůϮϴƚĞůĞƉŚŽŶŝĐŚĞĂƌŝŶŐ͘
tŝůůŝĂŵƐŚĂĚĂŶ/ĚĞƚĂŝŶĞƌ͕ǁŚŝĐŚƚŚĞǇĞůĞĐƚĞĚŶŽƚ ƚŽĞǆĞĐƵƚĞŽŶƉƌŝůϯϬ͘dŚĞŽƵƌƚŚĞůĚĂŶĞŵĞƌŐĞŶĐǇ ĐŽŶĨĐĂůůƚŚĂƚĂĨƚĞƌŶŽŽŶĂŶĚĂŵĞŶĚĞĚƚŚĞƚĞƌŵƐŽĨ ƐƵƉĞƌǀŝƐĞĚƌĞůĞĂƐĞ͕ǁŝƚŚŽƵƚŽďũĞĐƚŝŽŶ͕ƚŽŚŽůĚƚŚĞĚĞĨ ĂƚtǇĂƚƚƵŶƚŝůĂƐƵŝƚĂďůĞƉůĂĐĞŵĞŶƚŝƐĚĞƚĞƌŵŝŶĞĚĂŶĚ
ĂŐƌĞĞĚƚŽďǇƚŚĞƉĂƌƚŝĞƐ͘

WĂŐĞϯ

 
 Case 3:20-cv-00569-MPS Document 37 Filed 05/15/20 Page 1 of 7

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER, JACKIE

:

MADORE and KENNETH CASSIDY, :

Individually, and on behalf of all others :

similarly situated,

:

:

Petitioners,

:

:

v.

:

:

D. EASTER, Warden of Federal

:

Correctional Institute at Danbury, and

:

MICHAEL CARVAJAL, Director of the :

Federal Bureau of Prisons, in their official :

Capacities

:

:

Respondents.

:

Civ. No. 3:20-cv-00569-MPS

PROTECTIVE ORDER This case is brought by Petitioners, Dianthe Martinez-Brooks, Rejeanne Collier, Jackie Madore, and Kenneth Cassidy, against Respondents, D. Easter, Warden of Federal Correctional Institution at Danbury and Michael Carvajal, Director of the Federal Bureau of Prisons (“BOP”) challenging conditions of their confinement and the alleged effects on their health. In accordance with this Court’s order, the parties state that the Respondents anticipate producing to Petitioners’ counsel a list of inmates at FCI Danbury who have been diagnosed as having medical conditions identified by the CDC as risk factors in relation to COVID-19. The disclosure of this information to Petitioners’ counsel could infringe upon privacy and security interests of non-parties and provisional class members and is otherwise deserving of protection from public disclosure. In order to facilitate the parties’ access and use of such information for purposes of this litigation and pursuant to Rule 26 of the Federal Rules of Civil Procedure, it is hereby ORDERED:

Case 3:20-cv-00569-MPS Document 37 Filed 05/15/20 Page 2 of 7
1. Counsel for the BOP is hereby authorized, pursuant to 5 U.S.C. § 552a(b)(11) and consistent with 28 C.F.R. § 16.23, to release information otherwise protected by the Privacy Act, 5 U.S.C. § 552a, provided that the release of such information is reasonably related to the conduct of this litigation. Without limiting the generality of the foregoing, counsel for the BOP may release to counsel for Petitioners information that would be covered by the Privacy Act, whether such release is pursuant to discovery or otherwise, for use in this litigation.
2. Counsel for any party to this litigation may initially designate as “PROTECTED” hereunder any information exchanged or used in this case if counsel deems, in good faith, that release of such information could constitute an unreasonable invasion of privacy or security interests. A party designating information as protected hereunder represents thereby that it has done so in good faith and pursuant to a bona fide belief that such information in fact deserves protection.
3. In designating information as protected, the party so designating it shall identify the protected information with specificity in writing. Without limiting the generality of the foregoing, printing the word “PROTECTED” at the top of a document shall be sufficient to designate that document as protected under this order.
(a) Any party’s counsel may, at any time, object to the designation of information as protected. In the event of any such objection, the designating party and the objecting party shall confer as promptly as practicable to attempt to resolve the objection.
(b) Should the designating and objecting parties be unable to resolve the objection informally, the objecting party may submit such dispute to the Court for resolution. Until the Court resolves the dispute, the information shall be treated as protected.
2

Case 3:20-cv-00569-MPS Document 37 Filed 05/15/20 Page 3 of 7
4. Protected information provided through discovery and otherwise during the course of this litigation shall be handled and disclosed by the parties only as follows:
(a) Protected information may be used only for purposes of this litigation, except as otherwise provided herein, and shall not be given, shown, or made available to anyone, other than: (i) counsel for the Petitioners, such counsel’s firm and its employees; outside consultants and experts retained by Petitioners’ counsel to assist such counsel for purposes of this litigation; (ii) counsel for the Respondents and other employees of the United States who have a need to know the protected information for the defense or prosecution of this case and outside consultants and experts retained by the Respondents for purposes of this litigation; (iii) deposition witnesses and potential witnesses at trial in this case to whom disclosure is reasonably necessary to pursue the claims and defenses in this case; (iv) the person whose privacy interests are meant to be protected with respect to any particular document (e.g., the employee who is the subject of an agency personnel file may be shown documents from his/her personnel file); (v) court reporters who record and/or transcribe proceedings in this case; and (vi) the Court and its Clerk and other court personnel.
(b) Protected information may be used only for purposes of this litigation, except as otherwise provided herein, and may be discussed with: (i) counsel for the Petitioners, such counsel’s firm and its employees; outside consultants and experts retained by Petitioners’ counsel to assist such counsel for purposes of this litigation; (ii) family members or other representatives of a specific person whose privacy interests are implicated, but only to the extent the protected information discussed relates to that specific person; (iii) counsel for the Respondents and other employees of the United States who have a need to know the protected information for the defense or prosecution of this case and outside consultants and experts retained by the
3

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Respondents for purposes of this litigation; (iv) deposition witnesses and potential witnesses at trial in this case to whom disclosure is reasonably necessary to pursue the claims and defenses in this case; (v) the person whose privacy interests are implicated, but only to the extent the protected information discussed relates to that specific person; (vi) court reporters who record and/or transcribe proceedings in this case; and (vii) the Court and its Clerk and other court personnel.
(c) It shall be the responsibility of counsel to bring this order to the attention of all persons within their respective firms and all outside consultants and experts, representatives or family members to whom they disclose or discuss protected information and to ensure that all such persons comply with the terms of this order.
(d) The filing of materials containing protected information shall conform to Federal Rule of Civil Procedure 5.2, Local Civil Rule 5.4(f), and the Court’s “Notice Regarding Privacy and Public Access to Electronic Case Files.”
(e) All copies made of any material containing protected information shall be clearly labeled as such and shall be returned to the party who originally produced the information or destroyed at the conclusion of this litigation (including any and all appeals). Legal memoranda and briefs containing protected information and any work product materials containing protected information may be retained if such documents shall be kept in the possession of a private litigant’s counsel or in the possession of a governmental entity, and shall not in the future be disclosed contrary to the provisions of this order.
(f) If any counsel finds it necessary to refer to protected information in any oral proceedings before the Court, including oral argument, counsel shall notify the Court and all other counsel of record as soon as such necessity becomes apparent and shall propose whatever
4

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mechanism(s) may be available and appropriate to prevent disclosure of protected information as a consequence of such oral proceedings to persons other than those authorized by this order.
5. Petitioner’s counsel shall be authorized to disclose to an inmate or an inmate’s representative that the inmate’s name is not on the list provided by Respondents pursuant to paragraph 1 of the May 12, 2020 Temporary Restraining Order.
6. Counsel shall promptly report any breach of the provisions of this order to counsel for the party who produced the protected information that was improperly divulged or compromised. Upon discovery of any breach, counsel shall immediately take appropriate action to cure the violation and retrieve any protected information that may have been disclosed to persons not covered by this order. Counsel shall also cooperate fully in any investigation of such breach conducted by the Court. Nothing contained in this order shall be deemed or relied upon to create any right or benefit, substantive or procedural, for any person or entity other than the parties to the above-captioned action.
7. By providing any document or other information in its possession, no party waives any privileges, objections, or protection otherwise afforded to it by law or equity. A party shall promptly return to the producing party any material that the producing party identifies as privileged material that has inadvertently been produced in this action.
8. The parties are hereby authorized to seek the admission into evidence at the trial of this case any materials, or the contents thereof, that are subject to this Order, and nothing contained herein shall be construed as precluding plaintiffs or defendants from introducing any such materials, or the contents thereof, into evidence, subject to such measures as the Court may deem appropriate or necessary at that time in order to protect the privacy of the individual(s) involved.
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9. Receipt of confidential information shall not confer any property rights in the ownership or use of such information beyond use necessary for this litigation, uses expressly permitted in this order, or rights which a person may otherwise have. Confidential Information shall at all times remain the property of the Producing Party. Unless otherwise agreed upon or ordered, this Order shall remain in force after dismissal or entry of final judgment not subject to further appeal. Within thirty days after dismissal or entry of final judgment not subject to further appeal, and except as otherwise prohibited by federal law or, if applicable and not in conflict with federal law, Connecticut law, all Confidential Information and copies thereof shall be destroyed, or returned to counsel of record for the Producing Party, except as otherwise agreed by the Producing Party, and with the exception of documents filed with the Court, including those filed under seal. To the extent all Confidential Information has been redacted from a document, this paragraph does not apply to the redacted document. Notwithstanding the above requirements to return or destroy documents, counsel may retain attorney work product, but it shall continue to be subject to this Order. After dismissal or entry of final judgment not subject to further appeal, the Clerk may elect to return or, after notice, destroy documents filed under seal or offered at trial.
10. Nothing contained herein shall restrict the government’s use of its records for official business or for other purposes consistent with other applicable laws and regulations.
11. This Order is without prejudice to the rights of any party to make any objection to discovery permitted by the Federal Rules of Civil Procedure, or by any statute or other authority, or to the rights of any party to make evidentiary objections at trial.
12. Nothing in this Order may be taken or construed as a ruling or statement concerning the admissibility of any documents or information.
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13. This Order is without prejudice to the rights of any party to seek from the Court the modification of this Order.
14. Nothing in this Order should be read to alter the requirement in Paragraph 1 of the Temporary Restraining Order, see ECF No. 30 at 69, that the list of medically vulnerable inmates be filed under seal.
It is so ORDERED.

Dated: May 15, 2020

_____________/s/__________
The Honorable Michael P Shea United States District Judge

7

 
 Case 3:20-cv-00569-MPS Document 68 Filed 05/28/20 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS ET AL Plaintiffs, v. D. EASTER & MICHAEL CARVAJAL, Defendants.

No. 3:20-cv-00569 (MPS)

CONFERENCE MEMORANDUM AND ORDER At a status conference today, the Court discussed with counsel the Respondent’s efforts to comply with the Court’s temporary restraining order (ECF No. 30). During the discussion, counsel for the Petitioners and counsel for the Respondent represented that they had agreed (1) that, to ensure that “substantial weight” is accorded to each inmate’s COVID-19 risk factors, ECF No. 30 at 71, Respondent will arrange for a medical clinician to review the medical profiles (in particular, the medical “dashboard” in the BEMERS system) as to each inmate who was previously reviewed for home confinement as set forth in the worksheets filed as ECF No. 59 on the docket, and (2) that Respondent will use additional ICD codes supplied by Petitioners to search the BEMERS system to determine whether additional inmates should be included in the medically vulnerable subclass described in paragraph 1 of the Court’s temporary restraining order, ECF No. 30 at 69, ECF No. 64 at 1. The parties also agreed to confer further with an eye towards reaching agreement about (1) the role the above-mentioned medical clinician will play

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in the review process as a whole, including whether he or she will generate specific, written assessments as to the severity of each inmate’s risk factors and how the Respondent will weigh and incorporate any such assessments in the home confinement review process as a whole, (2) particular ICD codes that, if present in an inmate’s medical record, will automatically qualify that inmate for inclusion in the above-mentioned medically vulnerable subclass, and (3) a means of identifying inmates who should be included in the subclass but are not captured by the agreedupon ICD codes. Regarding the last item in the preceding sentence, the Respondent shall file a declaration by close of business on June 1 as to the costs and/or burden associated with the petitioners’ proposal that inmates be provided with notice of the pendency of this action and a means to forward HIPAA-compliant medical record releases to petitioners’ counsel (should the inmates choose to do so), together with the costs and/or burden of searching for and providing to petitioners’ counsel any medical records authorized for release under such a process. The parties shall, by close of business on June 2, 2020, file a notice describing any agreements they reach on these matters and indicating whether court intervention is needed as to any items on which they cannot agree.
The Court also discussed with counsel the Court’s need better to understand the home confinement review process undertaken by the Warden in response to the temporary restraining order. As discussed on the call, counsel shall meet and confer about (1) generating a random sample of the records reviewed by the Warden and her staff in the process reflected in the worksheets filed on the docket (ECF No. 59), and (2) providing the sample to the Petitioners’ expert, as suggested in item #6 in Section V. of the Petitioners’ May 27 filing (ECF No. 67 at 8). The parties shall file any agreement about the sampling process on the docket on or before June 4, 2020.

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The Court also discussed with counsel the extent to which the information on the spreadsheet filed as docket #66 regarding the release status of those deemed eligible for home confinement shows that the Warden has fully complied with the Court’s temporary restraining order. Paragraph 2a. of the temporary restraining order states that Respondent shall “modify[] any requirement that a person approved for home confinement be quarantined at the facility for 14 days to allow for immediate release to home confinement for those inmates as to whom Respondent verifies, after reasonable inquiry, that the inmate is not showing symptoms and is able to self-isolate for the same period in the home confinement setting.” (ECF No. 30 at 71.)
Although the Court recognizes that the Respondent and her counsel have devoted substantial resources to their efforts to comply with the temporary restraining order in general, it does not appear that the Respondent has complied with the above-quoted language of Paragraph 2a. of the order. More specifically, there is no evidence in any of the worksheets or other filings by Respondent that any efforts have been made to determine whether inmates approved for home confinement can be released immediately to home confinement because they are able to selfisolate at home. Further, it appears from the worksheets and the spreadsheet filed as docket No. 66 that, as to most or all of those inmates who were rejected on initial review by the Warden and her staff, but later approved by the “home confinement committee” (i.e., personnel from BOP’s central office in Washington, D.C., ECF No. 57-1 at 4), all of them have either already been quarantined (in the case of camp inmates) or are being quarantined as of 5/28/2020; but none of them have actually been released as of 5/28/2020. See ECF No. 66. Further, most of those indicated as having been “released” on the spreadsheet appear to have been recommended for home confinement even before the Court issued its temporary restraining order; as to several, for example, the worksheets are blank and simply indicate that the person is being released to home

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confinement. A few described as “released” – including two male inmates listed on the spreadsheet with initials MT and BH and a female inmate RA from the camp – do not even appear in the worksheets and were apparently not part of the court-ordered home confinement review process at all. Critically, all the inmates shown on the spreadsheet as having been approved for home confinement are persons who, the Warden agrees, should be placed in home confinement due to COVID-19 risk factors and other considerations. While the Court understands that the Warden and her staff may need some time to “process people out,” it is not clear why they need more than a few days to do so; further, as noted, there is no evidence the Warden has attempted to determine, “after reasonable inquiry,” that these inmates could not selfisolate at home.
Therefore, by way of ensuring full compliance with its temporary restraining order, the Court orders that, by close of business on June 4, 2020, the Respondent shall, with respect to each inmate shown on the spreadsheet (ECF No. 66) who has been approved for home confinement either (1) release such inmate to home confinement, or (2) demonstrate that public safety or medical considerations or the absence of any home in which to place the inmate would make it unsafe to move the inmate immediately to home confinement. Given the amount of time already taken to investigate each inmate’s proposed release plan and the amount of additional time the Court is allowing for compliance with this order, it will not be a sufficient response to the “show cause” portion of this order for the Respondent to state that the release plan is still being investigated or that details need to be worked out.
Finally, as the Court discussed with counsel, it appears from the worksheets (ECF No. 59) that, during the review process, mistakes were made regarding PATTERN scores that may have caused inmates to be denied home confinement based on incorrect information. The Court

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also discussed that the worksheets of some inmates who were denied home confinement list medical, COVID-19 risk, public safety risk, and other information that is substantively identical to the corresponding information in the worksheets of inmates who were granted home confinement. Respondent’s counsel explained that Respondent had faced tight time pressure (imposed by the Court) to review a large number of inmate profiles, and expressed a willingness to re-review particular inmate profiles to ensure that the correct information was used and consistent judgments were made. In light of this, the Court further orders that the Respondent specifically re-review for home confinement consideration and send to the home confinement committee for its consideration (1) those inmates shown on Attachment A of ECF No. 67 and (2) any inmate whose “case narrative” or “final decision” explaining the reviewer’s denial on the worksheets (ECF No. 59) cites only one or more of the following factors: (a) the amount of time left to serve and/or the percentage of time served, (b) any non-violent or non-sexually related disciplinary infractions, (c) non-violent conduct occurring during pretrial release, (d) the existence of pending charges, unless there is a detainer, (e) a PATTERN score of “low” or “medium,” (f) a history of violence that is greater than 15 years old, (g) the seriousness of any non-violent or non-sexual offense of conviction, and/or (h) the fact that the inmate has been designated to or is awaiting placement in a Residential Reentry Center (see, e.g., ECF No. 59 at 312, 572, 611, 626, 629, 644, 652, and 707). To avoid later suggestions of further mistakes, by close of business on June 1, 2020, Petitioners’ counsel shall provide Respondent’s counsel with a list of any inmates who, in the view of Petitioners’ counsel, meet the description set forth in the preceding sentence. But if there are disagreements as to whether any particular inmate meets that description, the Respondent’s view shall prevail for purposes of determining the group to rereview under this paragraph. If necessary, the Court will adjudicate disputes later. The

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Respondent shall complete the re-review described in this paragraph by June 9, 2020, and shall file a declaration and worksheets setting forth the details of this process by close of business on that date.
To be clear, the Court is not suggesting that persons who do not meet the criteria set forth in the preceding paragraph are inappropriate for home confinement or should not be re-reviewed for home confinement; rather, simply to ensure that the process is consistent, the Court is at this time requiring re-review and submission to the home confinement committee of inmate profiles that closely resemble those of other inmates whom the home confinement committee has already approved for home confinement. It is also the Court’s understanding that all of the inmates who were previously reviewed for home confinement will be reviewed again with the input of a clinician, as described above. The Court leaves to the parties to discuss whether it would be most efficient to coordinate the two re-reviews as a single process. In any event, both re-reviews (either singly or in combination) shall be completed – and any additional or corrected declarations and worksheets filed – by close of business on June 9, 2020.

IT IS SO ORDERED.

Dated:

Hartford, Connecticut May 28, 2020

/s/ Michael P. Shea, U.S.D.J.

 
 Case 3:20-cv-00569-MPS Document 70 Filed 05/29/20 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS ET AL Plaintiffs, v. D. EASTER & MICHAEL CARVAJAL, Defendants.

No. 3:20-cv-00569 (MPS)

ORDER On May 12, I issued a temporary restraining order directing the Respondent to review, on an expedited basis, all medically vulnerable inmates for home confinement eligibility under the Warden’s expanded authority under the CARES Act. ECF No. 30 at 69-73. The Respondent has taken substantial steps toward complying with this order. Nonetheless, more than two weeks after the Temporary Restraining Order was entered, it appears that not one inmate has actually been released to home confinement pursuant to the Order (i.e., excluding those who were released as a result of the process that was occurring before the order was issued). Consequently, with respect to those inmates that the Respondent has already determined to be eligible for home confinement, yesterday I ordered the Respondent, by June 4, either to (a) release each inmate to home confinement or (b) demonstrate that public safety or medical considerations or the absence of any home in which to place the inmate would make it unsafe to move the inmate immediately to home confinement. ECF No. 68 at 4. This order was intended to bring the Respondent into

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compliance with the Court’s May 12 TRO, which required the Warden to eliminate the categorical 14-day quarantine requirement to allow for immediate release where possible. ECF No. 30 at 71. The Petitioners urge the Court to take similar action with respect to those inmates that the Respondent has already determined to be appropriate for placement in a Residential Reentry Center (“RRC”). For the reasons that follow, I grant the Petitioners’ request in part—as to those inmates the Warden has deemed appropriate for placement in a RRC who do not have either (a) a violent1 or sexually related offense of conviction2 or (b) a PATTERN score of “High.” This ruling assumes familiarity with the procedural history of this case as well as the Court’s prior rulings.
In Mapp v. Reno, the Second Circuit held that district courts have inherent authority to grant bail to habeas petitioners. Mapp v. Reno, 241F.3d 221, 226 (2d Cir. 2001) (“Today we reaffirm these cases and hold, once again, that the federal courts have inherent authority to admit to bail individuals properly within their jurisdiction.”). The standard for bail pending habeas litigation, however, is “a difficult one to meet.” Id. “The petitioner must demonstrate that the habeas petition raise[s] substantial claims and that extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective.” Id. During the course of the ongoing COVID-19 pandemic, district courts within this Circuit have relied on the authority of Mapp to issue bail or temporary release orders to medically vulnerable Section 2241 petitioners claiming that their continued confinement violates the Constitution. See, e.g., Basank v. Decker,
1 For purposes of this order only, I do not consider mere possession of a firearm or ammunition – whether as a convicted felon, in connection with a drug trafficking offense, or based on some other unlawful capacity – to be a violent offense. 2 By “offense of conviction,” I mean the offense for which the inmate is currently incarcerated. An inmate who has a violent or sexually-related past offense is not excluded by this order unless his or her PATTERN score is “High.”

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2020 WL 1953847, at *13 (S.D.N.Y Apr. 23, 2020) (“Even if [ICE detainees petitioning under Section 2241] had not met the requirements for a preliminary injunction, the Court would release them on bail pending final resolution of their habeas claims under the Second Circuit’s decision in Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001).”); Ferreyra v. Decker, 2020 WL 1989417, at *12 (same); Coronel v. Decker, 2020 WL 1487274, at *8-9 (S.D.N.Y. March 27, 2020) (finding that “Petitioners have raised substantial claims” and that “[r]elease is . . . necessary to make the habeas remedy effective” because “[i]f Petitioners were to remain detained, they would face a significant risk that they would contract COVID-19—the very outcome they seek to avoid.”).
Here, I have already found that the Petitioners have shown a likelihood of success on their claim that the Respondent has run afoul of the Eighth Amendment by failing to make meaningful use of her home confinement and compassionate release authority. See ECF No. 30 at 42-56. For those same reasons, Petitioners have also shown that they have raised “substantial claims” under Mapp.
I now further find that, with respect to those medically vulnerable inmates who have already been approved for community placement, who do not have violent or sexually-related offenses of conviction, and who do not have a “High” PATTERN score, there are “extraordinary circumstances . . . that make the grant of bail necessary to make the habeas remedy effective.” It is undisputed that the medically vulnerable inmates face a grave risk of serious illness or death if they were to contract COVID-19. ECF No. 30 at 6-7. It is also undisputed that true social distancing—the most effective measure for preventing the spread of COVID-19—simply cannot be implemented at a facility, like FCI Danbury, where inmates live communally and sleep in large dormitory halls that house as many as 140 inmates. Id. at 6-7, 44. FCI Danbury was specifically identified as one of three federal prisons exhibiting “significant levels of infection”

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by the Attorney General. ECF No. 24-2 at 48. Thus far, one inmate at FCI Danbury has died as a result of contracting COVID-19, and multiple inmates have been hospitalized. Id. at 7.
The habeas remedy the Petitioners seek is for the Warden to pursue all reasonable measures, including the use of her expanded home confinement authority under the CARES Act, to remove them from FCI Danbury and thereby protect them from contracting COVID-19—a potentially fatal illness. The effectiveness of this remedy depends upon these inmates remaining infection-free. Yet every day that these medically vulnerable inmates spend incarcerated at FCI Danbury increases their chances of contracting COVID-19. This is the very outcome that Petitioners seek to avoid, and one that would render their requested relief entirely ineffective.
The Respondent has designated the inmates in question for placement in an RRC. Many of these placements, however, are not scheduled to occur for several months. See ECF No. 66 (listing RRC dates ranging from June 2020 through April 2021). Counsel for the Respondent indicated during the May 28 conference that Respondent is attempting to accelerate some of these placements, but it remains unclear when placement will actually occur. Furthermore, it seems unlikely that social distancing can be adequately observed at a half-way house, where communal living is, again, the norm. As a result, the extent to which RRCs actually present a safer environment for medically vulnerable inmates is unclear. Thus, the inmates’ pending placement at an RRC does not render bail unnecessary to make the habeas remedy effective.
Importantly, with respect to the medically vulnerable inmates that are the subject of this order, the Respondent has already determined that these inmates—who have generally served the vast majority of their sentences—are appropriate for some form of community placement, i.e., that they are suitable to leave the prison environment in the coming months. The fact that the Respondent has already conducted these individualized determinations in approving these

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inmates for community placement, presumably taking into account both public safety and penological objectives, addresses any concern that the need for individualized consideration makes granting bail under Mapp on a multi-party basis inappropriate under U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974). See generally ECF No. 30 at 62-66 (discussing the application of Preiser to the present action).
The Respondent chiefly argues that release to home confinement is inappropriate because it does not allow for the level of supervision that an inmate would receive at a half-way house. I address this concern in part by excluding from this order those inmates designated for RRC placement who are the most in need of close supervision to protect the public, i.e., those who are currently incarcerated for violent or sexually-related offenses and those who have PATTERN scores of “High,” which reportedly reflects a high likelihood of recidivism.3 This order thus only applies to those inmates listed on the spreadsheet filed as ECF No. 66—and any others designated for RRC placement since the spreadsheet was filed on May 27, 2020—who have been designated for RRC placement but do not have violent or sexually-related offenses of conviction and do not have PATTERN scores of “High.”
I also note that inmates on home confinement are not without supervision. They remain in the custody of the BOP and can be supervised by either an RRC or the United States Probation System. See, e.g., 18 U.S.C. § 3624(c)(2) (classifying home confinement as “prelease custody”); id. § 3624(c)(3) (directing Probation to provide assistance to prisoners in “prerelease custody”). Inmates on home confinement can also be placed on electronic monitoring. See
3 Of course, as to those inmates, I encourage the Respondent to continue to make efforts to accelerate their assignments to RRCs—in the hope that the particular RRC to which they might be assigned would present a somewhat lower risk of infection than does the environment of FCI Danbury.

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https://www.bop.gov/about/statistics/docs/program_fact_sheet_201907.pdf (last visited on May 29, 2020). While there is some degree of additional supervision at an RRC, I cannot conclude that this factor outweighs the medical considerations that make release to home confinement necessary to make the habeas remedy effective for those inmates to whom this order applies.
I thus find that, as to the inmates to whom this order applies, extraordinary circumstances, including the substantial risk to the health of these medically vulnerable inmates and the prevalence of COVID-19 at FCI Danbury (described in my earlier ruling, ECF No. 30 at 7, 13), make bail necessary to make the habeas remedy effective. Accordingly, I order as follows: By June 9, with respect to each medically vulnerable inmate who has been approved for community placement at an RRC and who does not have a violent offense of conviction, a sexually-related offense of conviction, or a “High” PATTERN score, the Warden shall either (a) release the inmate to home confinement or (b) demonstrate that public safety or medical considerations or the absence of any home in which to place the inmate would make it unsafe to move the inmate immediately to home confinement. The fact that a greater degree of supervision will be available at an RRC will not, by itself, be deemed sufficient to demonstrate that it is unsafe to move the inmate to home confinement, as the Court has already addressed this argument.

IT IS SO ORDERED.

Dated:

Hartford, Connecticut May 29, 2020

/s/ Michael P. Shea, U.S.D.J.

 
 Case 3:20-cv-00569-MPS Document 83 Filed 06/08/20 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER, and JACKIE

:

MADORE,

:

Individually, and on behalf of all others :

similarly situated,

:

:

Petitioners,

:

:

v.

:

:

D. EASTER, Warden of Federal

:

Correctional Institute at Danbury,

:

:

:

Respondent.

:

No. 3:20-cv-569 (MPS) June 8, 2020

PETITIONERS’ MOTION FOR SANCTIONS AND SUPPORTING MEMORANDUM OF LAW One of the basic tenets of litigating fairly is that parties preserve relevant evidence. Violation of this norm is so contrary to our judicial system that it permits district courts -pursuant to their inherent power to oversee the judicial process -- to employ a variety of sanctions against the violating party when appropriate. That is the case here. Respondent has an ongoing obligation to keep medical records, which include requests for medical care, and she was clearly on notice of her duty to preserve all medical records by the time this action was filed. Despite her ongoing obligation and being on notice of the relevance of all medical records in this case, Respondent’s practice up until last week was to destroy requests for medical care (called “sick call” requests). Petitioners respectfully move this Court for sanctions. Specifically, for the reasons stated below and based on the evidence in this case, Petitioners move for entry of an Order precluding Respondent from disputing that FCI Danbury’s system for responding to sick calls requests was inadequate and untimely to provide proper medical care to inmates.
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I. Factual and Procedural Background Petitioners filed the instant action for habeas corpus relief pursuant to 28 U.S.C. § 2241
on April 27, 2020. ECF No. 1. In their petition, Petitioners expressly allege significant delays and other deficiencies with FCI Danbury’s system for responding to prisoners’ requests for medical care and, specifically, allege deficiencies in FCI Danbury’s system to responding to “sick call requests” from prisoners. See ECF No. 1 at ¶ 36.e. (describing sick call system at FSL), ¶ 37.d. (same for Camp), ¶ 38.f. (same for FCI, or men’s facility), ¶ 129 (alleging that “[s]ince the lockdown began, sick call triage in the men’s facility is conducted by a social worker without medical training, and who is openly contemptuous of the men’s need”), ¶ 130 (“At men’s and women’s facilities, prisoners who present for sick call who do not exhibit fever are denied access to any further medical follow-up”), ¶ 188 (“As a result of the increased attention to the COVID epidemic, non-virus medical needs have gone unattended. The regular prison physicians have been absent or are no longer available to prisoners on the unit, prisoners who do not present with fever during sick call cannot be referred to a physician, and sick call requests for other than virus symptoms go unanswered for prolonged periods of time”).
On May 18, 2020, Petitioners served interrogatories and requests for production on Respondent. See Exhibit A, attached hereto (Petitioners’ Requests for Production); Exhibit B (Petitioners’ Interrogatories). Through Request for Production Number 7, Petitioners specifically requested “[a]ll documents concerning sick call requests or other requests made by prisoners for medical care for COVID-19 symptoms since March 1, 2020, and FCI Danbury’s responses to these requests, including but not limited to the date(s) of such responses, who examined the prisoner, what (if any) treatment was provided, and the date(s)the treatment was provided.” Exh. A at 7. Further, Petitioners’ Interrogatory Number 8 asked Respondent to “[s]tate the number of
2

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sick call and other requests for medical care made from prisoners at each of the three facilities (Main Complex, FSL, and Camp) since March 1, 2020 and state, for each facility, for each day since March 1, 2020, the number of prisoners who were seen respectively by a physician, a physician’s assistant, or a nurse.” Exh. B at 8.
Respondent did not produce sick call requests in response to Petitioners’ request for production or provide the specific answers, as requested in the interrogatory, regarding the number of sick call requests made since March 1, 2020.1 Petitioners’ counsel raised these deficiencies with Respondent’s counsel, who on or around May 29, 2020 informed Petitioners’ counsel via telephone that Respondent had failed to preserve paper sick call requests because the facility’s practice was to not retain them. Respondent’s counsel indicated that the sick call requests would be retained going forward.
On June 3, 2020, Petitioners’ counsel deposed Ms. Angela Dukate, the Health Services Administrator at FCI Danbury, both as a fact witness and as the 30(b)(6) witness on FCI Danbury’s medical response to the COVID-19. See Exhibit C (Excerpt of 06/03/20 Dukate Transcript) at 21-29. Ms. Dukate testified that FCI Danbury had destroyed all sick call requests submitted prior to May 29, 2020. When asked why the facility had failed to preserve these records, Ms. Dukate asserted that she considers the sick call requests not medical records because they are, in her view, “informal” and “nothing official.” Id. at 22-23. Ms. Dukate admitted that FCI Danbury continued to destroy sick calls requests after April 27, 2020, the date in which this action was initiated, and up until either June 1st or 2nd, weeks after Petitioners had requested sick call requests from Respondent through discovery. See id. at 29.
1 In response to Petitioners’ Interrogatory Number 8, Respondent provided the number of prisoners who were treated for sick calls, but did not respond to Petitioners’ requests for the number of sick call requests made. Without the number of sick call requests made, Petitioners are not able to show how many sick calls were ignored and how many prisoners were not seen in response to such requests.
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Respondent has now produced sick call requests submitted in June 2020.2 Contrary to Ms. Dukate’s testimony, the requests are on a medical form, contain medical information from the inmate-patient and the health care provider, and reflect the date the request was submitted and the date that the inmate was subsequently seen. They are plainly records that form a part of each inmate’s medical records.3
Not only did the pleadings and discovery requests in this case put Respondent on notice of her obligation to preserve sick call requests, the Bureau of Prisons independently has the responsibility to preserve medical records such as requests for medical care. The National Commission on Correctional Health Care (NCCHC), which accredits some BOP facilities, sets forth that “[w]ithout documentation of these steps, it is not possible to evaluate the responsiveness of your sick-call system, and if you are seeking accreditation, to determine if you are in compliance. Request slips are usually filed in the health records and begin the documentation trail. If you do not file the slips in the record, a log may be kept to monitor the stages of the response. The log needs to include the request date, date and result of triage, date of the sick-call visit if required, etc.”4 The NCCHC further recommends that jails and prisons maintain documentation of compliance for three years.5
Finally, but importantly, the Bureau of Prisons was put on notice of the relevance of sick call requests to COVID-19 litigation in another case relating to the Metropolitan Detention Center (MDC) in Brooklyn, New York. That suit, alleging deficiencies in the sick call system, was filed on March 27, 2020,6 and by May 1, 2020 the media had publicized the destruction of
2 Respondent has provided a few sick call requests dated prior to June 2020 that were not, for some unknown reason, destroyed. 3 Attached, as Exhibit D, is a (redacted) sick call request form (for June 1, 2020) produced by Respondent. 4 FAQ, Documentation, National Commission on Correctional Health Care, available at: https://www.ncchc.org/documentation. 5 Id. 6 See ECF No. 1, Chunn v. Edge, 1:20-cv-01590-RPK-RLM (E.D.N.Y Mar. 27, 2020).
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sick call requests.7 The destruction of the records was the subject of extensive court filings and testimony in the MDC case.8 In other words, for over one month after it was publicized that a federal jail was improperly destroying requests for medical care, BOP staff continued to destroy sick call requests from prisoners at FCI Danbury.
II. Argument “Spoliation is the destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Thomas v. Butkiewicus, 3:13-CV-747 (JCH), 2016 WL 1718368, at *7 (D. Conn. Apr. 29, 2016) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). If there is a discovery order, a court may impose sanctions pursuant to Federal Rule of Civil Procedure 37. Id. However, traditionally, and absent a court order, a district court can impose sanctions on a spoliating party based on the court’s inherent power to control the judicial process and litigation. Id. A court has broad discretion to fashion appropriate sanctions when spoliation occurs. Id.
Sanctions for spoliation should aim to: (1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party. Id. “Where, as here, the nature of the alleged breach of a discovery obligation is the non-production of evidence, a district court has broad discretion in fashioning an appropriate sanction, including the discretion to delay the start of a trial (at the expense of the party that breached its obligation), to declare a mistrial if trial has
7 Nick Pinto, Medical Expert: Federal Jail Intentionally Destroying Medical Records and Hiding Extent of Coronavirus Behind Bars, THE INTERCEPT (May 1, 2020), available at: https://theintercept.com/2020/05/01/mdcbrooklyn-jail-coronavirus-medical-records/. 8 See, e.g., ECF No. 86, Chunn v. Edge, 1:20-cv-01590-RPK-RLM (E.D.N.Y May 9, 2020); ECF No 89 (May 10, 2020).
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already commenced, or to proceed with a trial and give an adverse inference instruction.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). An adverse inference instruction is appropriate where: “(1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Id. (quoting Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)). The “culpable state of mind” factor is “satisfied by a showing that the evidence was destroyed “knowingly, even if without intent to [breach a duty to preserve it], or negligently.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002).
Petitioners easily meet all three prongs for the sanction sought through this motion. First, there can be no dispute that Respondent had a duty to preserve paper sick calls. Paper sick calls are an important way in which prisoners at FCI Danbury alert the facility that they have a medical problem as they constitute records of prisoners documenting their medical issues and seeking medical help. For this reason, the NCCHC provides that jails and prisons retain documentation of compliance with sick call requests for three years. Even assuming that FCI Danbury’s pre-April 27 practice of destroying sick call requests was permissible (which Petitioners’ dispute), Respondent had an obligation to preserve sick call requests once she reasonably anticipated litigation to which the requests were relevant. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents.”) As such, Respondent’s litigation duty
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to preserve the sick call requests arose at the latest on April 27 when the instant action was filed. See ECF No. 1.
Second, Respondent has acted with the requisite culpable mind. “[O]nce the duty to preserve attaches, any destruction [of relevant evidence] is, at a minimum, negligent.” Slovin v. Target Corp., No. 12 CV 863 (HB), 2013 WL 840865, at *4 (S.D.N.Y. Mar. 7, 2013) (quoting Zubulake, 220 F.R.D. at 220). Here, however, there is evidence for finding an intentional destruction of sick calls. Respondent destroyed evidence not only contrary to applicable correctional standards and a complaint alleging deficiencies in FCI Danbury’s medical care response, it did so also after receiving specific discovery requests from Petitioners seeking the requests and information about them. Compare Exhibits A-B (discovery requests propounded on May 18) with Exhibit C (Dukate deposition confirming destruction of sick call requests up until June 1 or 2).
Third, the sick call requests go to a critical issue in this case; namely, whether Respondent was deliberately indifferent in providing medical care in response to the COVID-19 pandemic’s impact on the facility. Petitioners have alleged and intend to establish that, despite being aware of the importance of medical care during a pandemic that has already killed over 100,000 people in the United States, Respondent’s sick call system regularly ignored or delayed in responding to prisoners’ requests for medical care. Such a response not only subjects putative class members to an unreasonable risk of serious injury or death, the response during the pandemic is at the very least reckless as to the risk of serious injury or death. Indeed, other courts in this Circuit have held that prison officials’ disregard of sick-call requests may be evidence of deliberate indifference. See e.g., Aikens v. Rao, 13-CV-1088S, 2015 WL 5919950, at *2 (W.D.N.Y. Oct. 9, 2015) (evidence of ignoring sick call requests sufficient for reasonable jury to
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find that defendants acted deliberately in denying plaintiff treatment); Myers v. Dolac, No. 09 Civ. 6642, 2013 WL 5175588, *12 (W.D.N.Y. 2013) (ignoring or destroying sick call requests, if proved, sufficient for jury to conclude that defendant knew of plaintiff’s medical condition and acted deliberately to deny plaintiff treatment).
The sanction sought here is a reasonable and appropriate one, as Petitioners are prejudiced by Respondent’s spoliation. The destruction of the paper sick call requests prevents Petitioners from confirming through contemporaneous documentation the testimony of Danbury inmates of the inordinate delays between their submission of their sick call requests and the dates of response by BOP staff at FCI Danbury. Even worse, Respondent’s spoliation prevents Petitioners from proving those requests for medical care that BOP staff at FCI Danbury completely ignored. Both of these forms of prejudice warrant remedial action through a Court order.9
Because Petitioners now are prevented from establishing through documentary evidence that requests for sick call were ignored or that there were significant delays in response to the requests for care, an appropriate sanction in this case is to preclude Respondent from disputing that the sick call system at FCI Danbury timely and adequately responds to prisoners’ requests for medical care at FCI Danbury. Because the Court is the trier of fact, and this matter is not going to a jury, an adverse inference instruction is not an appropriate sanction. Rather, a sanction in the form of precluding Respondent from disputing this issue would more adequately restore
9 Petitioners anticipate that Respondent will claim that its production of the “Activities Report,” a document which lists the dates of clinical encounters with prisoners, cures any potential prejudice. This is incorrect for multiple reasons. First, the Activities Report does not contain the date that a paper sick call request was submitted by the prisoner. Second, after conferring with Ms. Dukate, Respondent’s counsel has informed Petitioner’s counsel that the date the sick call request was made is not saved in the computer system once a patient is seen. Finally, Ms. Dukate testified at her deposition that not all sick call requests are entered into this system. Accordingly, Petitioners cannot rely on the Activities Report as evidence probative of when prisoners made sick call requests and how long it took to be seen.
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Petitioners to the “position [they] would have been in but for [Respondent’s] wrongful destruction of evidence.” Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (“It is a well-established and long-standing principle of law that a party’s intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction”). Such a sanction would also serve the other purposes of sanctions for spoliation, including deterring spoliation in the future and placing the risk of an erroneous judgment on the party who wrongfully created that risk. Kronish, 150 F.3d at 126.
For the reasons stated above, the Court should grant Petitioners’ motion for sanctions and preclude Respondent from disputing that the sick call system at FCI Danbury failed to adequately and timely respond to prisoners’ requests for medical care at FCI Danbury.

Dated June 8, 2020

Respectfully Submitted,
/s/ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Telephone: (203) 325-4491 Email: dgolub@sgtlaw.com
jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Telephone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu
tessa.bialek@quinnipiac.edu
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Case 3:20-cv-00569-MPS Document 83 Filed 06/08/20 Page 10 of 10 Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Telephone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org Alexandra Harrington, ct30943 127 Wall Street New Haven, CT 06511 Telephone: 203-436-3532 Email: alexandra.harrington@yale.edu Counsel for the Petitioners Dianthe MartinezBrooks, Rejeanne Collier, Jackie Madore, and
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EXHIBIT A

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER, JACKIE

:

MADORE and KENNETH CASSIDY, :

Individually, and on behalf of all others :

similarly situated,

:

:

Petitioners,

:

:

v.

:

:

D. EASTER, Warden of Federal

:

Correctional Institute at Danbury, and

:

MICHAEL CARVAJAL, Director of the :

Federal Bureau of Prisons, in their official :

Capacities

:

:

Respondents.

:

Civ. No. 3:20-cv-00569-MPS May 18, 2020

PETITIONERS’ FIRST REQUESTS FOR PRODUCTION TO RESPONDENT WARDEN DIANE EASTER
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Petitioners Dianthe Martinez-Brooks, Rejeanne Collier, Jackie Madore and Kenneth Cassidy (“Petitioners”), by and through their undersigned counsel, serve the following First Set of Requests for Production of Documents (“Requests”) upon Respondent Diane Easter, sued in her official capacity as the Warden of the Federal Correctional Institution at Danbury, Connecticut (“FCI Danbury”). Respondent is required to serve any objections to these Requests on or before May 22, 2020 and produce all documents or other tangible things in response to these Requests on or before May 25, 2020 by electronic delivery to Jonathan Levine, Silver Golub & Teitell LLP, jlevine@sgtlaw.com.

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DEFINITIONS The uniform definitions for discovery requests set forth in Rule 26 of the Local Civil Rules of the United States District Court for the District of Connecticut, shall apply to these Requests. 1. “BOP” means the Federal Bureau of Prisons, including all of its officers, employees, agents, representatives and other persons acting on its behalf. 2. “FCI Danbury” refers to the Federal Correctional Institution on Route 37 in Danbury, Connecticut, including all of its officers, employees, agents, representatives and other persons acting on its behalf, and includes the male low security level correctional institution (“Main Complex”), female federal satellite low security level facility (“FSL”), and female minimum security level federal prison camp (“Camp”). 3. “Prisoner” refers to any person who is currently, or has previously been, detained or incarcerated at FCI Danbury. 4. “Staff Member” refers to a person working within FCI Danbury, including but not limited to a federal employee or an outside contractor. 5. “COVID-19” refers to the disease COVID-19 as well as the virus SARS-CoV-2. 6. “Test for COVID-19” refers to a laboratory test for COVID-19 that makes use of respiratory specimens, saliva, blood, plasma, antibodies, or other tissue samples from a person. It does not refer to temperature checks or other non-laboratory measurements, or to self-reporting of symptoms that are indicative of possible COVID-19 infection. 7. “COVID-19 symptoms” means any symptoms of COVID-19 as defined by the Centers for Disease Control and Prevention ("CDC"), including but not limited to fever, chills, coughing, sore throat, loss of taste or sense of smell, headaches, and difficulty breathing.
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8. “Vulnerable to COVID-19” means (A) people who are at higher risk for severe illness due to COVID-19, including people who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (i) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (ii) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (iii) severe obesity (BMI of 40 or higher); (iv) diabetes mellitus Type I or Type II, (v) gestational diabetes mellitus; (vi) chronic kidney disease on dialysis; (vii) chronic liver diseases, cirrhosis; and/or serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension; or (B) any other people who were determined by FCI Danbury to be, or treated by the FCI Danbury as, vulnerable to COVID-19.
9. “PPE” refers to personal protective equipment, including but not limited to respirators, masks, gloves, face shields, and positive pressure suits.
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INSTRUCTIONS 1. Each Request shall operate and be construed independently. No Request shall limit the scope of any other Request, unless otherwise specified. 2. Your response to each Request shall either produce all documents responsive to the Request or state that inspection, copying, and related activities will be permitted at the time and place designated, unless the Request is objected to, in which event the reasons for objection, including any claims of privilege, shall be stated in sufficient detail to permit Petitioners to evaluate the validity of the objection and privilege asserted. 3. Documents produced in response to these Requests shall be produced as they are kept in the usual course of business, or according to the particular document Request number, type, or category to which they are responsive. 4. Electronically stored information shall be produced in Native Format. If electronically stored information does not exist in its Native Format, it shall be produced as either a PDF or a TIFF file. 5. Each Request for production of documents extends to all documents in your possession, custody, or control or in the possession, custody, or control of anyone acting on your behalf. A document is in your possession, custody, or control if it is in your physical custody, or if it is in the physical custody of any other person and you (a) own such document in whole or in part; (b) have a right, by contract, statute, or otherwise, to use, inspect, examine, or copy such document on any terms; (c) have an understanding, express or implied, that you may use, inspect, examine or copy such document on any terms; or (d) can, as a practical matter, use, inspect, examine or copy such document when you seek to do so.
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Case 3:20-cv-00569-MPS Document 83-1 Filed 06/08/20 Page 6 of 13 6. If a document or thing is responsive to more than one Request, the document needs to be produced only once.
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REQUESTS FOR PRODUCTION OF DOCUMENTS 1. All documents concerning BOP’s or FCI Danbury’s policies, procedures, guidance, guidelines, directives, methods, flowcharts, rubrics, or practices related to COVID-19, including but not limited to screening, testing, social distancing, hygiene, sanitation, personal protective equipment, medical treatment, contact tracing, isolation, quarantine, and identification of staff members or prisoners who are vulnerable to COVID-19 or at elevated risk for COVID19 by virtue of their age, medical histories, recent travel, recent exposure, or other factors. For any posters, bulletins, memoranda, training materials, or other documents that have been displayed or provided to prisoners or staff members with information concerning COVID-19, include records showing the date and means by which each such document was made available to prisoners or staff members. 2. All documents concerning COVID-19 testing of prisoners and staff members including requests for and receipt of tests, performance of tests, results of tests, and notification regarding test results since March 1, 2020. 3. All lists, logs, or other documents showing temperature readings of prisoners and staff members taken since March 1, 2020. 4. Documents sufficient to determine staffing from March 1, 2020 to the present including the number of staff members assigned to each facility (Main Complex, FSL, and Camp) on each date and requests by a staff member to take time off for COVID-19 related reasons. 5. Any documents concerning the identification by BOP or FCI Danbury since March 1, 2020 of prisoners who are or were vulnerable to COVID-19, including, all policies or
6

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protocols governing such determinations, any lists of such prisoners, and any communication to such prisoner that he or she has or had been so identified.
6. All documents concerning the number of prisoners evaluated by medical staff in each of the facilities (Main Complex, FSL, and Camp) on each day since March 1, 2020 for COVID-19 symptoms including symptoms reported at each visit, diagnoses made, and any treatment provided.
7. All documents concerning sick call requests or other requests made by prisoners for medical care for COVID-19 symptoms since March 1, 2020, and FCI Danbury’s responses to these requests, including but not limited to the date(s) of such responses, who examined the prisoner, what (if any) treatment was provided, and the date(s) the treatment was provided.
8. Documents sufficient to determine the number of requests submitted by medical staff for outside consultations or procedures for prisoners that are currently pending, including the date each request was submitted and whether the request was marked as “urgent” or “routine.”
9. Documents sufficient to identify and determine all medical staff members’ time and attendance at FCI Danbury on each date from March 1, 2020 to the present.
10. All documents concerning FCI Danbury’s evaluation of prisoners potentially eligible for release under 18 U.S.C. § 3622, 18 U.S.C. § 3624, 18 U.S.C. § 3582, Attorney General William Barr’s memoranda dated March 26, 2020 and April 3, 2020, and all other applicable legal authorities, including but not limited to all policies or protocols governing such determinations, any prisoner requests for such relief, which prisoners were evaluated for such relief, the information considered (including but not limited to medical assessments of the requesting prisoners) by FCI Danbury in connection with such evaluations, the results of such
7

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evaluations, and communication with prisoners regarding the results. The documents requested include, but are not limited to, medical review forms, Coronavirus Aid, Relief, and Economic Security Act forms, or other evaluation forms used or prepared in connection with such evaluations.
11. Documents sufficient to show the size and physical layout of FCI Danbury, by building and room, since March 1, 2020 and all photographs or videos taken within FCI Danbury since March 1, 2020, for the purpose (in whole or in part) of documenting the appearance and/or conditions of the facility, its prisoners or its staff members, all as they relate to actions taken or not taken by the FCI Danbury in connection with COVID-19.
12. All documents concerning grievances or other complaints by prisoners or staff members since March 1, 2020 related to COVID-19, including but not limited to grievances or complaints concerning personal hygiene supplies, cleaning supplies, hygiene practices of staff remembers, cleanliness of the facility, personal protective equipment, crowding/space, isolation and quarantining practices, testing, responses to prisoner requests for medical treatment, and medical treatment of prisoners suffering from or exhibiting symptoms relating to COVID-19.
13. Documents sufficient to show how much PPE was received at FCI Danbury from February 1, 2020 through the present broken down by type of PPE, including purchasing orders for PPE.
14. Documents reflecting any communication from or to medical staff members at FCI Danbury concerning FCI Danbury’s response to the COVID-19 pandemic including but not limited to communication concerning COVID-19 testing, staffing and equipment needs, and isolation and quarantine protocol.
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15. Documents reflecting any communication between FCI Danbury staff members and any of the following: BOP, any member of the U.S. Congress, the U.S. Department of Health and Human Services, the Centers for Disease Control and Prevention, and any other federal agency; or any state and local public health authorities or other governmental entities, including but not limited to the Connecticut Department of Health and the City of Danbury Health Department, from February 1, 2020 to the present relating to FCI Danbury’s response to the COVID-19 pandemic.
16. All logs, or other documents setting forth all cleaning and disinfection conducted at FCI Danbury since March 1, 2020.
17. All documents and communications relating or referring to any discipline or warnings, whether formal or informal, issued to staff members for their failure to comply with FCI Danbury’s policies or protocols related to COVID-19.
18. Documents sufficient to identify any discipline or warnings, whether formal or informal, issued since March 1, 2020 to any prisoner at FCI Danbury who filed a grievance or made a complaint or protest, whether written or oral, concerning the lack of social distancing, the lack of PPE or sanitation supplies, or other failure of FCI Danbury to protect the facility from COVID.
19. All medical records for each of the named Petitioners. 20. To the extent not provided in response to any prior Request for Production, copies of any policies, procedures, guidance, guidelines, or protocols concerning:
a. How staff members (whether medical or non-medical) should respond when a prisoner complains of COVID-19 symptoms;
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b. The response when FCI Danbury learns that a staff member has been exposed or come into close contact with COVID-19, including any protocols governing notification and testing of the affected staff member;
c. Identification and confirmation of potential cases of COVID-19, including all protocols for when and how to conduct temperature checks, specification of temperature recording devices to be used, and what temperature FCI Danbury considers to be elevated or febrile;
d. Implementing social distancing among prisoners; e. Monitoring of prisoners who have tested positive for COVID-19, including
determining whether a prisoner with COVID-19 needs to go to the hospital, and determining whether and when a prisoner who had previously tested positive for COVID-19 is no longer infectious; f. Cleaning and sanitizing areas known to have COVID-19 contamination, including the bedding and living area of prisoners who have tested positive for COVID-19; g. Cleaning and disinfecting commonly touched areas, including computers, telephones, faucets, and bathrooms; h. Distributing and storing PPE, including all policies for discarding and replacing damaged, unsanitary, worn out or lost PPE; i. PPE or hygiene protocol for staff and prisoners who move between housing units and facilities. j. Testing and quarantining new admissions.
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Dated May 18, 2020

Respectfully Submitted,
Petitioners By Their Attorneys
/s/ David S. Golub_______ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Telephone: (203) 325-4491 Email: dgolub@sgtlaw.com jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Telephone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu tessa.bialek@quinnipiac.edu
Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Telephone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org
Alexandra Harrington* 127 Wall Street New Haven, CT 06511 Telephone: 203-436-3532 alexandra.harrington@yale.edu
Counsel for the Petitioners Dianthe MartinezBrooks, Rejeanne Collier, Jackie Madore, and Kenneth Cassidy
*Application for Admission Pending
11

Case 3:20-cv-00569-MPS Document 83-1 Filed 06/08/20 Page 13 of 13 CERTIFICATE OF SERVICE
I hereby certify pursuant to Federal R. Civ. P. 5(b) that on May 18, 2020, a copy of foregoing Petitioners’ First Set of Requests for Production was served upon Respondents’ counsel of record, by email.
___/s/ Sarah F. Russell Sarah F. Russell, ct26604 Petitioners’ Counsel
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EXHIBIT B

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 2 of 12

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DIANTHE MARTINEZ-BROOKS,

:

REJEANNE COLLIER, JACKIE

:

MADORE and KENNETH CASSIDY, :

Individually, and on behalf of all others :

similarly situated,

:

:

Petitioners,

:

:

v.

:

:

D. EASTER, Warden of Federal

:

Correctional Institute at Danbury, and

:

MICHAEL CARVAJAL, Director of the :

Federal Bureau of Prisons, in their official :

Capacities

:

:

Respondents.

:

Civ. No. 3:20-cv-00569-MPS May 18, 2020

PETITIONERS’ FIRST SET OF INTERROGATORIES TO RESPONDENT WARDEN DIANE EASTER
Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, Petitioners Dianthe Martinez-Brooks, Rejeanne Collier, Jackie Madore and Kenneth Cassidy (“Petitioners”), by and through their undersigned counsel, serve the following First Set of Interrogatories (“Interrogatories”) upon Respondent Diane Easter, sued in her official capacity as the Warden of the Federal Correctional Institution at Danbury, Connecticut (“FCI Danbury”). Respondent is required to answer the Interrogatories separately and fully in writing, under oath, and is further required to serve a copy of objections to these Interrogatories on or before May 22, 2020 and answers on or before May 25, 2020 electronic delivery to Jonathan Levine, Silver Golub & Teitell LLP, jlevine@sgtlaw.com.

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DEFINITIONS The uniform definitions for discovery requests set forth in Rule 26 of the Local Civil Rules of the United States District Court for the District of Connecticut shall apply to these Interrogatories. 1. “BOP” means the Federal Bureau of Prisons, including all of its officers, employees, agents, representatives and other persons acting on its behalf. 2. “FCI Danbury” refers to the Federal Correctional Institution in Danbury, Connecticut, including all of its officers, employees, agents, representatives and other persons acting on its behalf, and includes the male low security level correctional institution (“Main Complex”), female federal satellite low security level facility (“FSL”), and female minimum security level federal prison camp (“Camp”). 3. “Prisoner” refers to any person who is currently, or has previously been, or at any point in this litigation is detained or incarcerated at FCI Danbury. 4. “Staff Member” refers to any person working within FCI Danbury, including but not limited to a federal employee or an outside contractor. 5. “COVID-19” refers to the disease COVID-19 as well as the virus SARS-CoV-2. 6. “Test for COVID-19” refers to a laboratory test for COVID-19 that makes use of respiratory specimens, saliva, blood, plasma, mucus, or other tissue samples from a person. It does not refer to temperature checks or other non-laboratory measurements, or to self-reporting of symptoms that are indicative of possible COVID-19 infection. 7. “COVID-19 symptoms” means any symptoms of COVID-19 as defined by the Centers for Disease Control and Prevention ("CDC"), including but not limited to fever, chills, coughing, sore throat, loss of taste or sense of smell, headaches, and difficulty breathing.
2

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 4 of 12
8. “Vulnerable to COVID-19” means (A) people who are at higher risk for severe illness due to COVID-19, including people who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (i) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (ii) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (iii) severe obesity (BMI of 40 or higher); (iv) diabetes mellitus Type I or Type II, (v) gestational diabetes mellitus; (vi) chronic kidney disease on dialysis; (vii) chronic liver diseases, cirrhosis; and/or serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension; or (B) any other people who were determined by FCI Danbury to be, or treated by the FCI Danbury as, vulnerable to COVID-19.
9. “PPE” refers to personal protective equipment, including but not limited to respirators, masks, gloves, face shields, and positive pressure suits.
3

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 5 of 12
INSTRUCTIONS 1. In answering the Interrogatories, provide all information that is within your knowledge, or which is available after a reasonable investigation. 2. If you cannot answer an Interrogatory in full or in part after conducting a reasonable investigation, state the efforts you have made to obtain the requested information. 3. For any information no longer available, recallable, or locatable, identify the information, state how and when it became unavailable and the reasons therefor, and identify each person having knowledge relating to the disposition or loss of the information. 4. Each Interrogatory shall operate and be construed independently. No Interrogatory shall limit the scope of any other Interrogatory. 5. To the extent that you consider any of the following Interrogatories to be objectionable, answer that portion of the Interrogatory to which you have no objection and separately state the portion of the Interrogatory to which you lodge an objection, stating the specific grounds for your objection. 6. If you encounter what you believe to be any ambiguity in an Interrogatory, Definition, or Instruction herein, you shall make best efforts to interpret the Interrogatory, Definition, or Instruction within the context of the subject matter of this action and shall set forth the matter deemed ambiguous, and the construction or interpretation chosen or used in responding to the Interrogatory. 7. If you believe that documents in your possession, custody or control contain information that is fully responsive to an Interrogatory, you may produce those documents instead of a written response to the Interrogatory and indicate in your response that you are doing so and identify the documents being produced in response.
4

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 6 of 12 8. The Interrogatories call for all information that is in your possession, custody, or control, including all information held by your agents, employees, attorneys, investigators, or other representatives. In answering, you must furnish all information available. If any information responsive to an Interrogatory exists but is not in your possession, custody, or control, please so indicate and identify the person currently having possession, custody, or control of such information. 9. The answers to these Interrogatories shall be signed by you and any objections shall be signed by the attorney(s) making them.
5

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 7 of 12
INTERROGATORY REQUESTS 1. Identify all prisoners who received a COVID-19 test at Danbury FCI since March 1, 2020, and, for each prisoner tested state:
a. the date the test was performed; b. the facility and unit where the prisoner was housed at the time of the test; c. the type of test used; d. the result of the test; and e. for each prisoner who tested positive, the dates and locations where the prisoner
has been housed since the time of the test including the dates of any trips to the hospital or to an outside medical provider. RESPONSE:
2. Identify all units, dorms, rooms, or other locations within FCI Danbury that have been used to isolate prisoners who tested positive for COVID-19 since March 1, 2020, and, for each such space, state the dates on which the location has been used for isolation of COVID-19 positive prisoners, and the number of prisoners housed in each location on each day such unit was used for isolation, and the capacity of the location. RESPONSE:
3. Identify all units, dorms, rooms or other locations within FCI Danbury that have been used to isolate or quarantine prisoners for reasons relating to COVID-19 other than a positive COVID-19 test (e.g., isolation of those experiencing symptoms or suspected of being positive, isolation of those who were in close contact with persons known to have been positive
6

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 8 of 12
for COVID-19, quarantine of those leaving for home confinement, or quarantine of those arriving at the facility), and for each such space state the particular purpose for which the space was so used, dates on which the space has been used for that particular purpose, the number of prisoners housed in each such location on each day such space was used for such purpose, and the capacity of the space. RESPONSE:
4. For each space or location identified in response to Interrogatories Nos. 2 and 3, state whether the occupants of those spaces accessed other parts of FCI Danbury at any time during their stay in that space, and whether prisoners not assigned to that space entered that space at any time while it was being used for isolation or quarantine. RESPONSE:
5. Identify all staff members who have tested positive for COVID-19 since March 1, 2020 and for each such staff member state the dates since March 1, 2020 that the staff member worked at FCI Danbury and, for each date worked, the units in which such staff member worked, and whether the staff member rotated between units on any particular shift. RESPONSE:
6. Identify all medical personnel working at FCI Danbury since March 1, 2020, specifying each such person’s job title and medical qualifications, role in providing medical care at FCI Danbury, foreign language abilities, and the dates and hours such medical staffer was on duty since March 1, 2020.
7

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 9 of 12
RESPONSE:
7. Identify all prisoners who, since March 1, 2020, have been identified as having COVID-19 symptoms and, for each such prisoner, state whether such prisoner was moved to some form of isolation, where the prisoner was transferred for such isolation, the dates of such isolation, and any medical treatment provided to the prisoner during such isolation. RESPONSE:
8. State the number of sick call and other requests for medical care made from prisoners at each of the three facilities (Main Complex, FSL, and Camp) since March 1, 2020 and state, for each facility, for each day since March 1, 2020, the number of prisoners who were seen respectively by a physician, a physician’s assistant, or a nurse. RESPONSE:
9. For each housing unit or dorm at FCI Danbury, state the number of prisoners currently housed in the unit or dorm, the capacity of the unit or dorm, the type of the housing in the unit (i.e., dorm-style or cellblock), the number of toilets, sinks, showers, telephones, and computers available to prisoners in the unit. RESPONSE:
10. Identify the types and amount of PPE and other medical equipment and supplies, and the amounts of each, that are available on premises for use at FCI Danbury for the detection, treatment, or prevention of COVID-19, including but not limited to thermometers, swabs, kits for
8

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 10 of 12
conducting Tests for COVID-19, oximeters, oxygen tanks, nasal cannulae, ventilators, masks, gloves, gowns, goggles, and face shields. RESPONSE:
11. For each of the three facilities at FCI Danbury, identify each prisoner who has been considered for home confinement under Attorney General Barr’s March 26, 2020 and April 3, 2020 memoranda, and state as to each whether the prisoner was approved or rejected for home confinement, the date(s) of each such determination, and reason(s) for any rejection. RESPONSE:
12. Describe whether FCI Danbury has consulted with or received guidance from public health professionals regarding strategies to strengthen the COVID-19 related protocol and education program for both staff and prisoners, and, if so, identify the names and titles of these professionals, describe their recommendations and strategies and whether the recommendations and strategies been implemented. RESPONSE:
13. To the extent that any policies or protocols requested in the attached Requests for Production are not maintained in written form, identify each such non-written policy or protocol and describe its substance. RESPONSE:
9

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 11 of 12

Dated May 18, 2020

Respectfully Submitted,
Petitioners By Their Attorneys
/s/ David S. Golub_______ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Telephone: (203) 325-4491 Email: dgolub@sgtlaw.com jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Telephone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu tessa.bialek@quinnipiac.edu
Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Telephone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org
Alexandra Harrington* 127 Wall Street New Haven, CT 06511 Telephone: 203-436-3532 alexandra.harrington@yale.edu
Counsel for the Petitioners Dianthe MartinezBrooks, Rejeanne Collier, Jackie Madore, and Kenneth Cassidy
*Application for Admission Pending

10

Case 3:20-cv-00569-MPS Document 83-2 Filed 06/08/20 Page 12 of 12 CERTIFICATE OF SERVICE
I hereby certify pursuant to Federal R. Civ. P. 5(b) that on May 18, 2020, a copy of foregoing Petitioners’ First Set of Interrogatories was served upon Respondents’ counsel of record, by email.
___/s/ Sarah F. Russell Sarah F. Russell, ct26604 Petitioners’ Counsel
11

Case 3:20-cv-00569-MPS Document 83-3 Filed 06/08/20 Page 1 of 16
EXHIBIT C

Case 3:20-cv-00569-MPS Document 83-3 Filed 06/08/20 Page 2 of 16

DIANTHE MARTINEZ-BROOKS -against- D. EASTER

30(b)(6)

Angela Dukate on 06/03/2020

·

·1· ·UNITED STATES DISTRICT COURT · · ·DISTRICT OF CONNECTICUT ·2· ·-----------------------------------X · · ·DIANTHE MARTINEZ-BROOKS, ·3· ·REEJEANNE COLLIER, · · ·JACKIE MADORE; ·4· ·and KENNETH CASSIDY, · · ·Individually, and on ·5· ·Behalf of All Others · · ·Similarly Situated,· · · · · ·Civ. No. ·6· · · · · · · · · · · · · · · · ·3:20-cv-00569-MPS

·7· · · · · · · · · · PETITIONERS,

·8· · · · · · -against-

·9· ·D. EASTER, Warden of Federal · · ·Correctional Institution at Danbury, 10 · · · · · · · · · · · RESPONDENT. 11· ·-----------------------------------X

12

13· · · · · · · · ·DATE: June 3, 2020

14· · · · · · · · ·TIME: 12:47 P.M.

15

16

17· · · ·DEPOSITION of the Respondent, by a

18· ·witness, ANGELA DUKATE, taken pursuant to Rule

19· ·30(b)(6) of the Federal Rules of Civil

20· ·Procedure, taken by the Petitioner, held

21· ·remotely using Zoom, before a Notary Public of

22· ·the State of Connecticut.

23

24

25

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Case 3:20-cv-00569-MPS Document 83-3 Filed 06/08/20 Page 3 of 16

30(b)(6)

DIANTHE MARTINEZ-BROOKS -against- D. EASTER Angela Dukate on 06/03/2020

Page 2

·1· ·A P P E A R A N C E S:

·2 · · ·SILVER, GOLUB & TEITELL, LLP ·3· · · ·Attorneys for Petitioners · · · · ·184 Atlantic Street ·4· · · ·Stamford, Connecticut· 06901 · · · · ·(203)325-4491 ·5· · · ·DGolub@sgtlaw.com

·6· · · · · · · ·BY: DAVID GOLUB, ESQ.

·7· · · · · · · · · ·JONATHAN M. LEVINE, ESQ.

·8· · · · · · · · · ·WILLIAM PRICE, ESQ.

·9· · · · · · · · · ·ZACHARY RYNAR, ESQ.

10

11· ·LEGAL CLINIC, QUINNIPIAC UNIVERSITY SCHOOL OF · · ·LAW 12· · · ·Attorneys for the Petitioners · · · · ·275 Mt. Carmel Avenue 13· · · ·Hamden, Connecticut· 06518 · · · · ·(203)582-5258 14· · · ·Sara.russell@quinnipiac.edu

15· · · · · · · ·BY: SARAH FRENCH RUSSELL, ESQ.

16

17· · · ·JEROME FRANK LEGAL SERVICES ORGANIZATION · · · · · · · P.O. Box 209090 18· · · · · · New Haven, Connecticut· 06520 · · · · · · · (203)432-4800 19· · · · · · Marisol.orihuela@ylsclinics.org

20· · · · · · · · BY:· MARISOL ORIHUELA, ESQ.

21· · · · · · · · · · · JESSICA XU

22· · · · · · · · · · · BRENDAN BERNICKER

23

24

25

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30(b)(6)

DIANTHE MARTINEZ-BROOKS -against- D. EASTER Angela Dukate on 06/03/2020

Page 3

·1· ·APPEARANCES (Continued):

·2

·3· · · ·U.S. ATTORNEY'S OFFICE · · · · · · · 157 Church Street ·4· · · · · · New Haven, Connecticut· 06510 · · · · · · · (203)821-3700 ·5· · · · · · Nathaniel.Putnam@usdoj.gov

·6· · · · · · · · BY:· NATHANIEL PUTNAM, ESQ.

·7· · · · · · · · · · · DAVID NELSON, ESQ.

·8

·9· ·Also present:

10· · · · · · · ALEXANDRA HARRINGTON

11· · · · · · · STEPHANIE SCENNEL-VESSELLA, BOP

12

13· · · · · · · ·*· · ·*· · · · *

14

15

16

17

18

19

20

21

22

23

24

25

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30(b)(6)

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Page 20

·1· ·shelf or anything like that.

·2· · · · Q.· · ·So we've been provided -- and we'll

·3· ·show you some of these in a little bit --

·4· ·we've been provided some documents that some

·5· ·are called clinical encounters, some are

·6· ·called activity logs, some are called

·7· ·consultation reports.· Are you familiar with

·8· ·those documents?

·9· · · · A.· · ·Yes.

10· · · · Q.· · ·And how are those documents

11· ·prepared?

12· · · · A.· · ·Anybody that has access can actually

13· ·pull up reports or print out clinical

14· ·encounters.

15· · · · Q.· · ·So the activities report form makes

16· ·reference to sick call triage among other

17· ·things.· Are you familiar with that term?

18· · · · · · · ·MR. PUTNAM:· If we're referring to a

19· · · · document can we put it up on the screen?

20· · · · Because I think there may be different

21· · · · documents that say "activity report" on

22· · · · it.· So I could get -- do you have a means

23· · · · to put it up on the screen?

24· · · · · · · ·MR. GOLUB:· I will but I'm not

25· · · · really doing it for that reason.· When I'm

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30(b)(6)

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Page 21

·1· · · · using a document, I'll put it up, Nate.

·2· · · · Right now I'm just kind of doing

·3· · · · background stuff.· So if she needs the

·4· · · · document I'm happy to do it.· Let me see

·5· · · · where the question's going before we do

·6· · · · that.

·7· · · · · · · ·MR. PUTNAM:· Okay.

·8· ·BY MR. GOLUB:

·9· · · · Q.· · ·Is that a phrase that's used at

10· ·Danbury, sick call triage?

11· · · · A.· · ·Sick call primarily, yes.

12· · · · Q.· · ·And inmates can put a request in for

13· ·sick call; correct?

14· · · · A.· · ·Yes.

15· · · · Q.· · ·Is that done electronically or is

16· ·that done on paper by the inmate?

17· · · · A.· · ·That's done on paper by the inmate

18· ·within a designated timeframe.

19· · · · Q.· · ·And that's a medical request by the

20· ·inmate to see some medical provider at the

21· ·facility; correct?

22· · · · A.· · ·Yes.

23· · · · Q.· · ·And then is the information from --

24· ·withdrawn.

25· · · · · · · ·And you're aware, are you not, that

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30(b)(6)

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Page 22

·1· ·the petitioners in this case have asked

·2· ·Danbury to produce the sick call requests that

·3· ·were made by the inmates; right?

·4· · · · · · · ·MR. PUTNAM:· Object to form.· You

·5· · · · can answer.

·6· · · · A.· · ·Yeah, I mean -- no, I didn't know

·7· ·that that was specifically in there, that

·8· ·document.· No.

·9· · · · Q.· · ·Did you help respond to the document

10· ·request that the petitioners served in this

11· ·case?

12· · · · A.· · ·It depends which part you're talking

13· ·about.

14· · · · Q.· · ·Well, was there a document request

15· ·that you were asked to help collect medical

16· ·information and medical records in connection

17· ·with?

18· · · · A.· · ·Yes.· Medical records.· Definitely

19· ·yes.

20· · · · Q.· · ·Well, a sick call request is a

21· ·medical record; isn't it?

22· · · · · · · ·MR. PUTNAM:· Objection to form.

23· · · · A.· · ·No.· It's not.· It's just a form

24· ·that we have created locally.· It's not a

25· ·government form.· It's nothing official.· It's

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30(b)(6)

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Page 23

·1· ·not anything that's required to be scanned

·2· ·into the medical record.

·3· · · · Q.· · ·When you say it's not required, what

·4· ·does that mean, "not required"?· Is there

·5· ·something that says -- let me rephrase the

·6· ·question.

·7· · · · · · · ·Is it your testimony that Danbury

·8· ·has destroyed the sick call requests?

·9· · · · A.· · ·No.· We haven't, like, destroyed it,

10· ·from what you're saying.· But we have a

11· ·process where we have actually created a form.

12· ·It's a form we've created at Danbury to help

13· ·the inmates make sick calls.· I don't recall

14· ·exactly what they're making sick call for.

15· ·There's even a picture on it they could draw

16· ·on of a person.· But it's not an official

17· ·form.· It's just a way -- informal way for an

18· ·inmate to let us know exactly what's going on.

19· ·And they actually hand those directly to a

20· ·medical person so they could actually look at

21· ·the form, obtain more information on the form

22· ·if need be and then people that need to be

23· ·seen the same day or seen the same day and

24· ·people that can be seen later are placed on

25· ·our scheduler which is a function in our

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30(b)(6)

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Page 24

·1· ·electronic medical record.

·2· · · · Q.· · ·So are you saying that the -- who is

·3· ·it that collects the sick call forms from the

·4· ·inmates?

·5· · · · A.· · ·Right now we're going to the units

·6· ·and collecting them.· So primarily --

·7· ·sometimes I go.· But primarily, right now, the

·8· ·main consistent person has been our dental

·9· ·hygienist and she's just collecting these

10· ·forms to bring them back.

11· · · · Q.· · ·How about in March and April?

12· ·Who --

13· · · · A.· · ·Same.· So social worker, dental

14· ·hygienist or myself or the dentist were the

15· ·primary people who had gone around, depending

16· ·who was available to make rounds and collect

17· ·the sick call forms.

18· · · · Q.· · ·And do I understand you that what

19· ·you said is that the person who collects it

20· ·will take information from the inmate to get

21· ·more information than this on the form?

22· · · · A.· · ·If need be, yes.

23· · · · Q.· · ·So that's taking a history from the

24· ·inmate of what the inmate is complaining about

25· ·if it's not clear from the form; is that it?

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30(b)(6)

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Page 25

·1· · · · A.· · ·Or just ask specifically what

·2· ·they're requesting.· For example, I did one

·3· ·the other day and it just said, "I need to see

·4· ·a doctor."· So I inquired as far as exactly

·5· ·what do you mean by this, you know, what's

·6· ·going on versus a generic "I need to see a

·7· ·doctor."

·8· · · · Q.· · ·And then would you note that on the

·9· ·form?

10· · · · A.· · ·Yes.

11· · · · Q.· · ·Now, does the person who collects

12· ·the form make -- is that person responsible

13· ·for making the determination about whether the

14· ·inmate needs to see somebody right away or

15· ·not?

16· · · · A.· · ·No.

17· · · · Q.· · ·Who is responsible for making that

18· ·determination?

19· · · · A.· · ·So the forms are brought back and

20· ·either the paramedics will triage them or

21· ·we'll actually take them to the physician and

22· ·ask the physician specifically who they would

23· ·like to see and then the rest will go on our

24· ·scheduler, which is an electronic function,

25· ·and Beamer with a notation specifically why

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Page 26

·1· ·they're making sick call.

·2· · · · Q.· · ·So whenever a sick call request is

·3· ·received and the person is not seen that day

·4· ·there's an electronic schedule for a future

·5· ·visit prepared; is that right?

·6· · · · A.· · ·Yes.

·7· · · · Q.· · ·And who is responsible for entering

·8· ·that information into the computer to schedule

·9· ·it?

10· · · · A.· · ·Well, it used to be our health

11· ·information technician before she went out.

12· ·During her absence we've had the dental

13· ·hygienist enter it, social worker enter it,

14· ·and the medical assistant who works with the

15· ·physician also enter it.

16· · · · Q.· · ·And you can tell from your computer

17· ·records the date on which every sick call form

18· ·is entered into the computer; correct?

19· · · · A.· · ·Yeah.· They put it in that same day

20· ·with that date and then they make a notation

21· ·specifically what the inmate is making a sick

22· ·call in regards to.

23· · · · Q.· · ·And that would be true whether or

24· ·not it's an urgent sick call or a deferred

25· ·sick call visit, the information from the sick

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·1· ·call form is entered into the computer and

·2· ·either scheduled for that day or scheduled for

·3· ·a day in the future; correct?

·4· · · · A.· · ·No.

·5· · · · Q.· · ·Okay.· What's wrong with what I just

·6· ·said?

·7· · · · A.· · ·The urgent ones are seen the same

·8· ·day.· So they're not entered into the

·9· ·scheduler.

10· · · · Q.· · ·So what happens then?· How is it

11· ·that the inmate gets from whatever unit the

12· ·inmate is in to see the doctor -- to see

13· ·somebody, I should say -- we'll get to who

14· ·that is in a minute -- how does that person

15· ·get there on that same day?

16· · · · · · · ·MR. PUTNAM:· Object to form.

17· · · · A.· · ·Boy.· We actually call them up from

18· ·their unit and have them brought up for an

19· ·evaluation that same day.

20· · · · Q.· · ·And where is that entered?

21· · · · A.· · ·That would be the clinical encounter

22· ·by the provider that sees them.

23· · · · Q.· · ·Is there a way to determine from the

24· ·entry in the computer system whether an

25· ·encounter was viewed as something that needed

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·1· ·to be done on the same day or was it a

·2· ·deferred encounter?

·3· · · · A.· · ·Can you repeat the question?

·4· · · · Q.· · ·Sure.

·5· · · · · · · ·You said some of the sick call

·6· ·requests would be scheduled out in the future,

·7· ·some of them would be seen on the day of the

·8· ·sick call request; correct?

·9· · · · A.· · ·Yes.

10· · · · Q.· · ·Okay.· Is there a way to tell from

11· ·the computer which is which?

12· · · · A.· · ·The ones that are seen the same,

13· ·they just have a clinical encounter and you

14· ·can in the history or activities report pull

15· ·those up and look at the encounter.

16· · · · Q.· · ·The ones that are deferred for the

17· ·future, what would I see on those?

18· · · · A.· · ·You can view them on the scheduler

19· ·and then you would be able to look at the

20· ·completed ones and go to that clinical

21· ·encounter, or if the physician didn't process

22· ·it off you can still go under clinical

23· ·encounter to see when that person was seen and

24· ·look at their encounter.

25· · · · Q.· · ·Why is it that the sick call

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·1· ·requests aren't kept?

·2· · · · · · · ·Let me withdraw that.

·3· · · · · · · ·Are they kept now?

·4· · · · A.· · ·We have started keeping them.· Yes.

·5· · · · Q.· · ·When did you start keeping them?

·6· · · · A.· · ·I want to say maybe Monday we

·7· ·started.· Monday or Tuesday.

·8· · · · Q.· · ·You mean two days ago?

·9· · · · A.· · ·Yes.

10· · · · Q.· · ·Today's Wednesday; right?

11· · · · A.· · ·Yes.

12· · · · Q.· · ·And why did you start keeping them

13· ·two days ago?

14· · · · A.· · ·It was recommended --

15· · · · · · · ·MR. PUTNAM:· Object to form.· But

16· · · · you can answer.

17· · · · A.· · ·It was recommended.

18· · · · Q.· · ·Where are you maintaining them now?

19· · · · A.· · ·We have the completed ones in a

20· ·folder that says completed sick calls and we

21· ·have another one for the uncompleted ones in

22· ·another folder in medical records.

23· · · · Q.· · ·Is it your intention to continue to

24· ·maintain these records for the foreseeable

25· ·future?

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·1· · · · A.· · ·For now, yes.

·2· · · · Q.· · ·So how many inmates are positive for

·3· ·COVID at Danbury right now?

·4· · · · A.· · ·102 total from the beginning when we

·5· ·started testing in late March.

·6· · · · Q.· · ·When you say late March, what does

·7· ·that mean?

·8· · · · A.· · ·Around March 26th was when we had

·9· ·our first case that we started testing.

10· · · · Q.· · ·I assume you're aware of Attorney

11· ·General Barr's April 3, 2020, memorandum

12· ·concerning COVID in correctional institutions,

13· ·federal correctional constitutions?

14· · · · A.· · ·Yes.

15· · · · Q.· · ·And did you see that at the time?

16· · · · A.· · ·I can't recall the exact date.· But

17· ·I saw it.· It was around that time that it

18· ·came out.

19· · · · Q.· · ·Whether it was the same day or not

20· ·you would have seen it contemporaneously with

21· ·its issuance; correct?

22· · · · A.· · ·Uh-hmm.

23· · · · Q.· · ·Is that yes?

24· · · · A.· · ·Yes.· Yes.

25· · · · Q.· · ·And it was part of your

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·1· ·responsibilities to be aware of that

·2· ·memorandum; correct?

·3· · · · A.· · ·Yes.

·4· · · · Q.· · ·You actually also saw his March 26th

·5· ·memorandum as well; correct?

·6· · · · A.· · ·Yes.

·7· · · · Q.· · ·And you're aware that in those

·8· ·memoranda, both of them, Attorney General Barr

·9· ·identified inmates who are medically

10· ·vulnerable to COVID-19 as a group that needed

11· ·protection; correct?

12· · · · · · · ·MR. PUTNAM:· Objection to form.

13· · · · A.· · ·That's what was indicated in the

14· ·memo.

15· · · · Q.· · ·Is it correct that the Bureau of

16· ·Prisons is a department of the Department of

17· ·Justice?

18· · · · A.· · ·Yes.

19· · · · Q.· · ·So that Attorney General Barr is the

20· ·highest-ranking member of the Department of

21· ·Justice; correct?

22· · · · A.· · ·Yes.

23· · · · Q.· · ·So his memoranda were binding on

24· ·you; is that correct?

25· · · · A.· · ·Yes.

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Case 3:20-cv-00569-MPS Document 83-4 Filed 06/08/20 Page 1 of 2
EXHIBIT D

Case 3:20-cv-00569-MPS Document 83-4 Filed 06/08/20 Page 2 of 2

 
 Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 1 of 69

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JACKIE MADORE; AMANDA COOPER; :

and JAMES WHITTED, individually, and :

on behalf of all others similarly situated, :

:

Petitioners,

:

:

v.

:

:

DIANE EASTER, Warden of Federal

:

Correctional Institution at Danbury, in

:

her their official capacity

:

:

Respondents.

:

Civ. No. 3:20 cv 569 (MPS)

AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2241 AND
REQUEST FOR EMERGENCY ORDER OF ENLARGEMENT PRELIMINARY STATEMENT
The Federal Correctional Center at Danbury (“FCI Danbury”) is a low security federal correctional institution located in Danbury, Connecticut. That city, within the New York City metropolitan area, is part of the epicenter of our nation’s struggle with the novel COVID-19 virus and resulting coronavirus disease (“COVID-19”).
As COVID-19 ravages the New York Metropolitan area, the risks posed by COVID-19 to people confined in prisons, working in prison, and their communities are stark and alarming. For reasons beyond their control, people in jails and prisons cannot practice social distancing, control their exposure to large groups, practice increased hygiene, wear protective clothing, obtain specific products for cleaning or laundry, avoid high-touch surfaces, or sanitize their own environment. And those problems are no more evident than at FCI Danbury, a prison consisting

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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 2 of 69
of a men’s low security complex, a women’s low-security satellite facility, and a women’s minimum security satellite facility, which has been one of the hardest hit prisons run by the Federal Bureau of Prisons nationwide.
Petitioners bring this action against the Warden of FCI Danbury and the Director of the Federal Bureau of Prisons (“BOP”) on behalf of themselves and the class of prisoners held at FCI Danbury who are at imminent risk of contracting COVID-19, which feeds on precisely the unsafe, congregate conditions in which they are held. Respondents are aware of the grave dangers posed by COVID-19 and have failed to implement measures to comply with their constitutional obligations to those in their custody. Because of their unlawful and unconstitutional confinement, Petitioners seek emergency orders requiring a two-part response, the immediate transfer of the most medically vulnerable individuals to home confinement or other appropriate settings and immediate implementation for those who remain of the social distancing and hygiene measures essential to lowering the risk of the disease and of death.
PARTIES 1. Petitioner Jackie Madore, BOP Register Number 08721-036, is a 50 year-old woman who, at all times relevant herein, has been in the custody of the BOP at FCI Danbury, and is currently housed in the low security satellite facility (“FSL”). She transferred to that building to participate in the Residential Drug Abuse Program (RDAP), which is currently suspended. Ms. Madore is at heightened risk of mortality from COVID-19 due to hypertension. She also suffers from hypothyroidism, and hepatitis C. 2. Petitioner Amanda Cooper, BOP Register Number 76357-067, is a 42 year-old woman who, at all times relevant herein, has been in the custody of the BOP at FCI Danbury,
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 3 of 69
and is currently housed in FCI Danbury’s women’s minimum security camp. Ms. Cooper has Type II diabetes with diabetic neuropathy. She also has multiple pulmonary embolisms, deep vein thromboses requiring lifelong anti-coagulation, NASH liver disease, Stage II, and a history of seizures and strokes. She is also morbidly obese. She also has a medical restriction limiting her to the first floor of the institution, but that limitation cannot be accommodated because prisoners are in below grade dorms. Each of these conditions places Ms. Cooper at dramatically heightened risk of death from COVID-19; the combination of all these conditions creates exponential danger.
3. Petitioner James Whitted, BOP Register Number 83830-054, is a 41 year-old man who, at all times relevant herein, has been in the custody of the BOP at FCI Danbury and is currently housed in the men’s facility in the main prison. Mr. Whitted suffers from asthma for which he currently uses two medicated inhalers. He is also morbidly obese. In 2018, Mr. Whitted suffered a fall which resulted in head trauma, spinal damage, and permanent injury to his left leg for which he requires a custom brace. As a result of his injury he is required to use a walker and a cane to ambulate. He is in need of physical therapy to maintain leg function but has not received any such therapy since the onset of the COVID-19 lockdown at FCI Danbury.
4. Respondent Diane Easter is the Warden at FCI Danbury and has oversight responsibility for all three units in the facility. As Warden of FCI Danbury, Respondent Easter is responsible for and oversees all day-to-day activity at FCI Danbury, and all aspects of the operation and of the functioning of FCI Danbury. Her responsibilities include ensuring the safety of all in the institution and ensuring the orderly running of the institution. Respondent Easter is aware of the harms of COVID-19, but she has adopted and enforced a policy that leaves
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 4 of 69
Petitioners and all those similarly situated exposed to infection, severe illness, and death due to COVID-19. Respondent Easter is the immediate physical custodian responsible for the detention of the Petitioners at FCI Danbury. She is sued in her official capacity.
JURISDICTION AND VENUE 5. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 2241 because Petitioners seek relief from being held in custody in violation of the Eighth Amendment to the U.S. Constitution. 6. In addition, the Court has subject matter jurisdiction over this Petition pursuant to 28 U.S.C. § 1331 (federal question) in that the Petitioners’ claims arise under the federal statute providing for habeas corpus, 28 U.S.C. § 2241, and under Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause), as Petitioners are held in violation of the Eighth Amendment to the U.S. Constitution. 7. Venue is proper in the District of Connecticut pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to these claims occurred and continue to occur in this district.
CLASS ACTION ALLEGATIONS 8. Petitioners bring this representative habeas action pursuant to 28 U.S.C. § 2241 and as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on their own behalf and on behalf of all persons similarly situated. 9. Petitioners seek to represent a class consisting of all individuals currently in custody at FCI Danbury or who will become in custody at FCI Danbury during the course of the COVID-19 pandemic (the “Class”).
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 5 of 69
10. Petitioners also seek to represent a subclass (the “Subclass”) consisting of all individuals in custody at FCI Danbury or who will become in custody at FCI Danbury during the course of the COVID-19 pandemic who are aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of stroke; and people with any condition specifically identified by CDC, currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19.
11. The members of the Class and Subclass are too numerous to be joined in one action, and their joinder is impracticable. Upon information and belief, the class exceeds 1,000 individuals.
12. Common questions of law and fact exist as to all Class and Subclass members and predominate over questions that affect only the individual members. These common questions of fact and law include but are not limited to: (1) whether the conditions of confinement described in this Petition amount to Constitutional violations; (2) what measures Respondents took in response to the COVID-19 crisis; (3) whether Respondents implemented an adequate emergency plan during the COVID-19 crisis; (4) whether Respondents’ practices during the COVID-19 crisis exposed people at FCI Danbury to a substantial risk of serious harm; (5) whether the
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 6 of 69
Respondents knew of and disregarded a substantial risk of serious harm to the safety and health of the Class; and (6) what relief should be awarded to redress the harms threatened to members of the Class as a result of the conditions.
13. Absent class certification, individuals detained at FCI Danbury during the COVID-19 pandemic would face a series of barriers in accessing the relief sought. FCI Danbury has suspended visitation and FCI Danbury prisoners have limited access to communication with the outside world, impeding their ability to obtain legal representation and to pursue remedies, including through litigation. A large portion of the Class and Subclass has limited educational backgrounds. And a significant percent of them suffer from physical or mental impairments. For some, English is not their first language.
14. Respondents’ practices and the claims alleged in this Petition are common to all members of the Class and Subclass.
15. The claims of Petitioners are typical of those of the Class and Subclass. Petitioners are threatened with imminent inhumane conditions of confinement at FCI Danbury.
16. The legal claims of Petitioners are the same or similar to those of all Class and Subclass members, and the harms suffered by them are typical of those suffered by all the other Class members.
17. Petitioners will fairly and adequately protect the interests of the Class and Subclass. The interests of Petitioners as class representatives are consistent with those of the Class and Subclass members. In addition, counsel for Petitioners are experienced in class action and civil rights litigation.
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18. Counsel for Petitioners know of no conflicts of interest among Class or Subclass members or between the attorneys and Class members that would affect this litigation.
19. Prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications that could establish incompatible standards of conduct for the party opposing the Class.
20. The party opposing the Class has acted and refused to act on grounds generally application to the Class, such that final injunctive and declaratory relief is appropriate as to the Class as a whole.
21. Use of the class action mechanism is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court, which individual litigation of these claims would impose.
22. This class action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all Class and Subclass members is impracticable.
STATEMENT OF FACTS I. Petitioners Are Members of the Population Particularly Vulnerable to COVID-19
23. Petitioners, current detained at FCI Danbury, are individuals who are particularly vulnerable to serious illness or death if infected by COVID-19.
24. Petitioner Jackie Madore is a 50-year-old female who suffers from hypertension, hypothyroidism, and Hepatitis C. As a result of her hypertension alone, without consideration of the complicating effects of her other conditions, she has a substantially elevated risk of severe
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 8 of 69
illness or mortality in the event she contracts COVID-19 while confined at FCI Danbury.1 As a result of her medical condition, Ms. Madore has effectively been condemned to serve her sentence at substantial risk of serious illness or death. The Judgment in her criminal case only sentences Ms. Madore to an additional 20 months in prison. As a result of his medical condition, there is a grave risk that he will not make it out of FCI Danbury alive or will become terribly ill.
25. Petitioner Amanda Cooper is a 42 year-old woman with a significant number of risk factors putting her at high risk of severe illness or death in the event she contracts COVID19. Ms. Cooper has significant cardiovascular issues, including deep vein thromboses requiring lifelong anti-coagulation, hypertension, and multiple pulmonary embolisms, which also impact her respiratory function. She also has Type II diabetes with diabetic neuropathy. She suffers from Stage II NASH liver disease. She has a history of seizures and strokes. She is also morbidly obese. She is on multiple medications for these conditions. Ms. Cooper is disabled as a result of her medical conditions and requires accommodation on the first floor where she does not have to use stairs. But FCI Danbury currently cannot accommodate her disabilities because prisoners in the FSL where she resides are housed in below grade dorms due to COVID-19.
26. As a result of her medical condition, Ms. Cooper has effectively been condemned to serve her sentence at substantial risk of serious illness or death. Pursuant to the above-cited WHO-China Joint Mission Report, each of these conditions puts Ms. Cooper at significantly elevated risk of mortality in the event she should contract COVID-19: The mortality rate for hypertension is 8.4%; the mortality rate for chronic respiratory disease is 8.0%, the mortality rate for cardiovascular disease is 13.2%.2 Moreover, a recent study found that obesity was the single
1 See id. 2 See id,
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 9 of 69
biggest chronic risk factor for hospitalization for COVID-19.3 COVID-19 infection in a patient presenting with all four medical conditions will undoubtedly be deadly.4 As a result of her
medical condition, there is a grave risk that Ms. Cooper will not make it out of FCI Danbury
alive or will become terribly ill.
27. Petitioner James Whitted is a 41 year-old man with a significant number of risk
factors putting her at high risk of severe illness or death in the event he contracts COVID-19.
Mr. Whitted suffers from asthma for which he currently uses two medicated inhalers. He is also
morbidly obese. As a result of a fall that caused spinal damage and permanent injury to his left
leg, he requires a custom brace and must use a walker and a cane to ambulate. He is in chornic
pain that has not been managed since he has been in the custody of the BOP. He is in need of
physical therapy to maintain leg function but has not received any such therapy since the onset of
the COVID-19 lockdown at FCI Danbury and is at risk of significant loss of mobility. As a
result of his medical condition, there is a grave risk that he will not make it out of FCI Danbury
alive or will become terribly ill.
II. The Layout of the Facilities at FCI Danbury Gives Rise to an Urgent Need for Social Distancing that Remains Unmet More than Six Weeks into the National COVID-19 Pandemic
A. Physical Layout of FCI Danbury’s Three Facilities
3 Christopher M. Petrilli et. al., Factors Associated With Hospitalization and Critical Illness Among 4,103 Patients with COVID-1 Disease in New York City (Apr. 11, 2020), available at https://www.medrxiv.org/content/10.1101/2020.04.08.20057794v1.full.pdf; see also Tiernan Ray, NYU scientists - Largest US study of COVID-19 finds obesity the single biggest 'chronic' factor in New York City's hospitalizations (April 12, 2020), https://www.zdnet.com/article/nyu-scientists-largest-u-s-studyof-covid-19-finds-obesity-the-single-biggest-factor-in-new-york-critical-cases/
4 Safiya Richardson, et al., Presenting Characteristics, Comorbidies, and Outcomes Among 5700 Patients Hospitalized with COVID-19 in the New York City Area, J. AM. MED. ASS’N (Apr. 22, 2020), available at https://jamanetwork.com/journals/jama/fullarticle/2765184 (in study of 5,700 patients, finding that the most common comorbidities with COVID-19 were hypertension (56.6%), obesity (41.7%), and diabetes (33.8%)).
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 10 of 69
28. As of April 23, 2020, the BOP reports that 1,046 people were held at FCI Danbury. They were divided among the units as follows: 165 women are incarcerated at the satellite prison, 153 women are incarcerated at the camp, and 728 men are incarcerated at the men’s prison.5
1. Women’s FSL 29. The women in the satellite facility (“FSL”) are housed in a single dormitory-style room that accommodates approximately 160-170 beds. [Declaration of Christina Korbe, submitted herewith as Exhibit E (“Korbe Decl.”) ¶ 8]. The room is divided into cubicles, each containing two bunk beds, separated by approximately four feet. [Declaration of Marius (Marie) Mason, submitted herewith as Exhibit F (“Mason Decl.”) ¶ 7; Declaration of Kimberly Hoisington, submitted herewith as Exhibit G (“Hoisington Decl.”) ¶ 4]. Beds in each cubicle are immediately adjacent to the cubicle wall, which does not reach to the ceiling. In some instances the wall does not even reach the top of the bunk bed, so women on the top bunk sleep right next to the woman on the top bunk in the adjacent cubicle. [Mason Decl. ¶ 7; Korbe Decl. ¶ 10].
a. All of the women in the FSL share the same three bathrooms, each of which includes between 4-8 toilets, sinks, and showers. [Mason Decl. ¶ 10; Korbe Decl. ¶ 8].
b. The FSL also includes a common area where the women have access to 6-12 shared phones (not all of which are working) and 6 shared computers (only 4 of which are working), which are located in close proximity to one another. [Korbe Decl. ¶ 11; Mason Decl. ¶8].
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 11 of 69
c. The women in the FSL eat meals together in the dormitory. Meals are brought to all of the prisoners in the dormitory at the same time.
d. On April 25, around 40 women were moved from the dorm area to sleep in the dining hall/kitchen area.
e. On information and belief, there is no medical staff permanently assigned to the FSL or available 24 hours a day. A doctor and a physician’s assistant rotate between the three FCI Danbury facilities and are there during limited hours on weekdays. In order to request medical care, a requester must go to “pill call” in the morning, where a pharmacy technician dispenses medications, and fill out a sick call slip. The requester must then wait until she is called in to be seen, which can take weeks. Emergencies require a call from a correctional officer for a medical professional to come to the FSL. Prior to the pandemic, there were two psychologists who were at the FSL on a daily basis, but they have rarely been present since the pandemic (as psychology programming has been canceled).
2. Women’s Camp 30. The women at the camp occupy a single building divided into four dormitories, each containing 25 cubicles with bunk beds sleeping two each, and nine rooms that can each hold 4 to 5 women. Prior to the lockdown of the facility on April 15, there were approximately 43 women housed in the nine rooms. After the lockdown, those women were moved to the
5 See BOP, “Population Statistics” (last updated Apr. 23, 2020), https://www.bop.gov/about/statistics/population_statistics.jsp
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 12 of 69
dormitories. [Declaration of Dianthe Martinez-Brooks (“Martinez-Brooks Decl.”), submitted herewith as Exhibit C ¶¶ 4-5].
a. The cubicles in the dormitories—which currently house all of the women in the camp—have no doors and their dividing walls do not extend to the ceilings. In many cubicles, the beds are positioned perpendicular to the partitions and extend the full width of the cubicle. In this configuration, the partition is the only separation between the beds. Even where beds are placed parallel to the partition, there is not six feet of separation between them. [Id. ¶ 7].
b. As of April 21, 2020, A and B dorms each house 48 women; C dorm houses 47 women and D Dorm houses 7. Each dorm has a common area containing toilets, sinks and showers. A dorm has 4 showers and three toilets. B dorm has 5 working toilets and 6 showers; C dorm has 5 toilets and 5 showers. D Dorm has 3 toilets and three showers. [Id. ¶¶ 6-7].
c. There are four phones, 7 computers for email, and 3 working video-visiting machines, clustered together in a single common area shared by the entire population of the camp. The common area also contains hot water taps and sinks for washing dishes. [Martinez-Brooks Decl. ¶ 9].
a. The camp is currently on lockdown. Pursuant to the lockdown, the women in each dorm unit are permitted to leave the dorm for 45 minutes in the morning and one hour later in the day, at different times. They can use the facilities in the common room during these times. Within these short time periods, the 47-48 woman census of A, B, and C dorm must each negotiate the sharing of the four common
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 13 of 69
phones, the 7 computers and 3 video chat machines. [Martinez-Brooks Decl. ¶ 11]. b. Recently, women who are out of their dorm during their designated recreation time have been going to visit friends in other dorms. [Martinez-Brooks Decl., ¶ 15]. d. There is no actual medical clinic in the camp and there is no medical staff permanently assigned to the camp or available 24 hours a day. Rather, there are a series of offices: two are used by medical staff, one by dental staff, and one by psychology. During this lockdown, a sick call request is made to physician’s assistants when they come to the unit in the morning to dispense medications and the requester must wait until she is called in—often days later. Emergencies require a call from a correctional officer for a medical professional to come to the camp. [Id. ¶ 21]. 3. Men’s Prison 31. The men’s facility contains 13 units, comprised of 10 units designed for dormitory-style housing and three units of individual cells. There is also a Special Housing Unit for solitary confinement. a. The dormitory units (designated C through L Units) consist of rows of bunk beds lined in two rows three to four feet apart across a middle aisle, with no barriers between the beds. [Declaration of Kenneth Cassidy (“Cassidy Decl.”), submitted herewith as Exhibit D ¶ 32]. A man in that unit would, therefore, sleep within 3-4 feet of five other men. [Id.]. The average dorm unit would also contain a
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bathroom with 5 stalls and a urinal, 5-6 sinks (generally consisting of five coldwater wash sinks and a single hot-water slop sink for washing eating utensils) and a shower area approximately two feet across a hall from the toilets with three to four showers. [Id. ¶ 33]. The sinks are located approximately four inches apart and people occasionally have to share the same sink. [Id.]. b. The dorms also contain 2 television rooms, approximately 10 x 12 feet that can accommodate approximately 20 prisoners each and typically hold 15-20 people at a time. [Id. ¶ 35]. There is also a small telephone room, approximately 3 x 8 feet, containing two telephones. The telephones, which are about eight inches apart, are almost always in use. When two prisoners are using the telephones, they have to stand within two feet of each other. Typically, there are two prisoners on the phones, and the rest wait in a line in the hallway, standing right next to each other, close enough to touch each other. [Id. ¶ 36]. c. There is also a small computer room in each dorm measuring approximately 8 x 10 feet containing three computers, an eating table and an ice dispenser. There are no barriers between the computers and, at any given time, there will be three people in the room using the computers, three people standing behind them in the room waiting to use the computers, and several more lined up shoulder to shoulder outside the room. [Id. ¶ 37]. d. The three units of individual cells (A, B and M Units) consist of two floors of cells measuring 8 x 4 feet, containing a bunk bed for two men with a toilet/sink. [Declaration of Rafael Almonte, submitted herewith as Exhibit H (“Almonte
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 15 of 69
Decl.”), ¶ 6]. Prior to the emergence of COVID-19 in the facility, only one of the cell block units (M Unit) was in use and housed primarily military veterans, older men and those with serious medical conditions. A second cellblock (A Unit) has since been devoted to prisoners who are positive for coronavirus. [Almonte Decl. ¶ 17]. The facility has also activated one of the dorms (K Unit)—which had previously been emptied because of the need for asbestos remediation—to serve as an isolation unit at the prison. [Id. ¶ 4; Cassidy Decl. ¶ 42]. B Unit has since been converted to serve as a quarantine unit for individuals being released or sent to home confinement. e. The cellblock units also contain a TV room that can accommodate 30 men who sit close together and a computer room containing 3 stations right next to one another. There are also two small rooms containing one phone each. [Almonte Decl. ¶ 8]. f. There is a single medical clinic for men at FCI Danbury. Before the outbreak, it was typically staffed by one physician and two physician assistants. The physician from the women’s facilities would occasionally come to the men’s prison to see patients. [Almonte Decl. ¶ 11]. Since the lockdown, a social worker is coming into the units to conduct sick call triage of men exhibiting symptoms. [Cassidy Decl. ¶ 18]. At times she brings along the prison’s dental hygienist. [Id.] The clinic is not staffed by medical staff 24 hours a day. g. There is also a dining hall in the men’s prison that serves all of the units in the prison. The men’s prison also includes an outdoor space for recreation (“rec
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 16 of 69
yard”). The space is accessed through a single 4 foot wide door and men entering and exiting the rec yard must line up in close proximity to file through the door. During recreation, prisoners stand right next to one another and are unable to observe social distancing. [Cassidy Decl. ¶ 29]. B. COVID-19 Outbreak at FCI Danbury 32. FCI Danbury is in the center of the global COVID-19 storm. The United States currently has the greatest number of infections of any country in the world. As of April 27, 2020, there were approximately 966,000 reported COVID-19 cases and more than 55,000 deaths in the United States.6 And, the New York City metropolitan area, in which FCI Danbury is located, is currently at the epicenter of the coronavirus pandemic in this country. As of April 27, 2020, there are over 422,000 positive cases of COVID-19 in New York, Connecticut and New Jersey. As of that date, there have been 30,000 deaths in those three states, representing 55% of the total confirmed deaths from COVID-19 reported nationwide.7 In New York City and the seven counties most proximate to FCI Danbury (Westchester, Putnam, Dutchess and Nassau counties in New York and Fairfield, Litchfield and New Haven counties, Connecticut), there were an aggregate of 242,000 cases of COVID-19 and 21,000 deaths. Id. In Connecticut alone, the Connecticut Department of Public Health ("DPH") has reported that, as of April 27, 2020, in Connecticut, there were 25,269 confirmed cases and 1,924 deaths attributed to COVID-19. Fairfield County, where FCI- Danbury is located has the highest number of confirmed cases of
6 COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), https://www.arcgis.com/apps/opsdashboard/index.html.
7 Id. 16

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COVID-19 and deaths attributed to COVID-19 in the state: as of April 27, 2020, there were 10,529 confirmed cases of COVID-19 and 707 COVID-19 associated deaths.8
33. FCI Danbury is the site of one of the worst COVID-19 outbreaks at BOP facilities nationwide. As of April 15, at least 44 prisoners and 39 staff members have or had tested positive for COVID-19.9 One person incarcerated at FCI Danbury has died of COVID-19. On April 24-26, 2020, at least two women from the FSL were brought to the hospital because of severe COVID-19 symptoms. On information and belief, at least ten more women in the FSL tested positive during those same days.
34. The incidence rate at Danbury exceeds 2.8% of the total prisoner population at the facility—among the highest concentrations of positive tests per capita of any facility in the Bureau of Prisons network.
35. The incidence of staff COVID-19 infections at FCI Danbury is likewise, among the highest incidence per capita of staff infections in the BOP system.
36. The BOP reports the number of positive cases for inmates and staff at each facility on its website. But the BOP’s numbers do not include people who previously tested positive for COVID-19 and have since been deemed recovered by BOP.10 The BOP provides no explanation as to what qualifies as “recovery.”
37. BOP’s data does not state where the incarcerated people who tested positive have been housed, and who may have been exposed to staff members who have tested positive.
8 See https://portal.ct.gov/-/media/Coronavirus/CTDPHCOVID19summary4232020.pdf?la=en 9 See Laura Cassels, COVID-19 deaths in federal prisons rise to 15; about 700 staff and inmates sick, Phoenix, April 15, 2020, https://www.floridaphoenix.com/2020/04/15/covid-19-deaths-in-federalprisons-rise-to-15-about-700-staff-and-inmates-sick/ 10 Federal Bureau of Prisons, https://www.bop.gov/coronavirus/
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38. As set forth in detail below, see paragraphs 131-141, there is ample evidence to indicate that FCI Danbury appears to be avoiding testing prisoners who present with symptoms of COVID-19 infection.
39. COVID-19 is at Danbury and individuals are infected. What cannot be known is how many currently have the infection or exposure. In the absence of any information from the BOP about the number of tests actually administered at FCI Danbury and the criteria employed at that institution to determine whether and when to perform COVID-19 testing, no reliable information is public about the degree to which the infection has spread at FCI Danbury.
40. Respondents have failed to prioritize medically vulnerable prisoners for release to home confinement or to other destinations appropriate to reduce population density at FCI Danbury and enhance opportunities for social distancing.
41. On information and belief, Respondents have also reversed prior determinations to release medically vulnerable individuals pursuant to de-densification efforts and have advised medically-vulnerable individuals who had previously been notified that they were to be released to home confinement that they are no longer eligible for such release because they had not completed one-half of their sentences.
42. Further, on information and belief, FCI Danbury has indefinitely suspended the administrative remedy process; staff informed prisoners that, due to the state of emergency under which the facility is operating, staff are unavailable to review, investigate and respond to grievances. [Cassidy Decl. ¶ 25].
43. FCI Danbury is grossly ill-equipped to identify, monitor, and treat a COVID-19 epidemic. The combination of an epidemic striking a facility that houses over 1,000 people and
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FCI Danbury’s inability to provide appropriate medical care under normal circumstances is likely to result in serious illness and death, if people remain confined there at current population levels and under current conditions.
44. At current facility population levels, prisoners at FCI Danbury cannot comply with the Centers for Disease Control and Prevention (“CDC”) guidelines for physical distancing, a “cornerstone” of risk reduction in prisons.11
45. As long as prisoners are unable to practice physical distancing, any other mitigating steps will fail to decrease meaningfully the risk of COVID-19 infections at FCI Danbury.
46. The failure to implement appropriate social distancing measures has led to the creation of crisis conditions at FCI Danbury.
47. On April 24-26, 2020, several prisoners at the FSL have shared an account of a 43 year-old woman housed at the satellite facility whose serious symptoms, including profuse vomiting and dry heaving, over several hours, were disregarded by correctional staff before she was finally taken to the hospital. [See Korbe Decl. ¶¶ 16-17; Hoisington Decl. ¶¶ 16-17].
a. The woman at issue had been sick for a couple of weeks with a sore throat and body aches.
11 See CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (Mar. 23, 2020), at 4 (“CDC Interim Correctional Facility Guidance”) (“Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19”); id. (“Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic.”), available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
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b. On April 24, she said that she couldn’t breathe and that her lungs felt like they were filling with fluid. She began vomiting, and was vomiting, dry heaving, and violently struggling for air for hours. At one point she had to be wheeled in a wheelchair by a correctional officer from the bathroom because she couldn’t walk.
c. Other prisoners tried to advocate for her to receive medical treatment and were told that the hospital can’t take her unless she’s dying, and that the prisoners would get disciplinary reports and get locked down if they continued advocating on her behalf. The prisoners were told that they were not doctors and were instigating the sick woman’s behavior.
d. By late at night on April 24 or early morning on April 25, the sick woman had been taken to the hospital. At the hospital, she tested positive for COVID-19.
e. The next day on April 25, roughly 40 inmates who were determined to have had recent contact with the sick prisoner were moved out of the dormitory into a separate area of the facility and were tested for COVID-19.
f. On information and belief, at least ten of those inmates tested positive for COVID-19.
g. Thereafter, all of the prisoners who had been removed from the dormitory returned for some time to gather their personal property, use phones and computers, use bathrooms, and take showers. On information and belief, even after they were removed to isolation, several of these women were able to return to the dormitory to gather snacks and other belongings.
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h. The phones, computers, and bathrooms were not sanitized immediately afterwards.
i. The other inmates in the dormitory are using these same phone, computers, and bathrooms.
j. Some inmates who had contact with the sick woman were not among those removed from the dormitory and are still living there.
k. As a result of failure to implement social distancing and to plan for contagion within the facility, FCI Danbury had no appropriate location to isolate the women who newly-tested positive for COVID-19 and was required to take those women to sleep in the dining hall/kitchen.
l. Prisoners have been warned that they will get disciplinary reports if they tell anyone about what is going on in the facility. A prisoner who relayed information about the sick woman to her attorney via phone was given a disciplinary report for sharing information about another prisoner.
48. FCI Danbury is undergoing a serious outbreak and worse will likely follow with devastating consequences for Petitioners and other vulnerable prisoners, correctional staff, local health care workers, their families, and the broader community. III. Prisons Are Especially Susceptible to COVID-19 Contagion
49. The COVID-19 virus is highly infectious and can be spread “easily and sustainably” from person-to-person.12 The virus can live on plastic and steel surfaces for up to 72
12 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.
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hours, and, powered by a single cough or sneeze, can be propelled in a gas cloud that extends up to 27 feet in length.13
50. To date, the virus is known to spread from person to person through respiratory
droplets, close personal contact, and from contact with contaminated surfaces and objects, where
the virus can survive for up to three days. Critically, people who are asymptomatic or pre-
symptomatic can unknowingly transmit the virus, making it particularly difficult to slow its
spread. [Declaration of Jaimie Meyer, M.D. submitted herewith as Exhibit A (“Meyer Decl.”) ¶
20].
51. There is no vaccine against COVID-19 and there is no known medication to
prevent or treat infection from COVID-19. Social distancing, or remaining physically separated
from known or potentially infected individuals, and vigilant hygiene, including washing hands
with soap and water, are the only known effective measures for protecting vulnerable people
from COVID-19.
52. As a result, the only assured way to curb the pandemic is through dramatically
reducing contact for all. Consequently, every American institution—from schools to places of
worship, from businesses to legislatures—has been exhorted or ordered to reduce the number of people in close quarters, if not to empty entirely.14 People also have been told to undertake
13 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); 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).
14 Harry Stevens, Why Outbreaks Like Coronavirus Spread Exponentially, and how to “Flatten the Curve,” WASH. POST, (Mar. 14, 2020), https://cutt.ly/etYRnkz; Centers for Disease Control and Prevention, Interim Guidance for Administrators of US K-12 Schools and Child Care Programs, https://cutt.ly/ItRPq5n; Centers for Disease Control and Prevention, Interim Guidance for Administrators and Leaders of Community-and Faith-Based Organizations to Plan, Prepare, and Respond to
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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.15
53. In light of this public health crisis, in late March 2020, the Governors of New
York and Connecticut took the strictest measure yet to fight the virus’s spread. In recognition
that the most effective way to reduce the spread of the virus, they issued “stay at home”
executive orders for all residents and banned all non-essential public gatherings.16
54. People in congregate environments, where people live, eat, and sleep in close
proximity, face increased danger of contracting COVID-19, as evidenced by the rapid spread of
the virus in cruise ships and nursing homes.
55. Indeed, the CDC has identified prisons, along with nursing homes, long-term care
facilities, group homes, and cruise ships, as environments that are especially susceptible to rapid
outbreaks of infection due to close person-to-person contact among large, confined
populations.17
Coronavirus Disease 2019 (COVID-19), https://cutt.ly/KtRPk1k; 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; Nat’l Conf. of State Legislatures, Coronavirus and State Legislatures in the News, https://cutt.ly/4tRPQne. 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. 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.
15 Centers for Disease Control and Prevention, Cleaning and Disinfecting Your Facility, https://cutt.ly/atYE7F9.
16 Governor Cuomo Signs the 'New York State on PAUSE’ Executive Order, New York State (Mar. 20, 2020), https://www.governor.ny.gov/news/governor-cuomo-signs-new-york-state-pauseexecutive-order; Gov. Ned Lamont announces ban on gatherings of more than 5 people as COVID-19 death toll hits 21 and unemployment claims surge to 148K, HARTFORD COURANT (Mar. 26, 2020, 10:21 pm), https://www.courant.com/coronavirus/hc-news-coronavirus-updates-0326-20200326guqhxagmd5fidprf6el6wpvity-story.html.
17 See CDC Interim Correctional Facility Guidance, available at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctionaldetention.html.
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56. Spaces within jails and prisons are often poorly ventilated; the lack of ventilation promotes highly efficient spread of diseases through droplets. [Meyer Decl. ¶ 9].
57. Prisoners and staff interact in close proximity under cramped conditions that are designed to confine people rather than distance them; as a result, correctional facilities are highly susceptible to rapid transmission of the virus through contact, including asymptomatic carriers who show no signs of illness, and common surfaces.
58. Absent significant de-densifying, people who are confined in prisons, jails, and detention centers, as well as staff, will find it impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission. [Meyer Decl. ¶¶ 9, 11].
59. As one court, quoting another, recently summarized the problem: “Prisons are ‘powder kegs for infection’ and have allowed ‘the COVID-19 virus [to] spread[] with uncommon and frightening speed,’” United States v. Salvagno, 5:02cr00051-LEK (N.D.N.Y. Apr. 23, 2020) (Doc. 1166 at 8) (quoting United States v. Skelos, No. 15-CR-317, 2020WL 1847558, at *1 (S.D.N.Y. Apr. 12, 2020)).18
60. Correctional settings also increase the risk of contracting and spreading an infectious disease, like COVID-19 because they typically house high numbers of people with chronic, often untreated underlying health conditions, such as diabetes, heart disease, chronic lung and liver diseases, asthma, and lower immune systems from HIV. This chronic underlying
18 Editorial, No One Deserves To Die of COVID-19 in Jail: But More Than 100 Inmates Already Have, N.Y. Times, Apr. 23, 2020), available at https://www.nytimes.com/2020/04/23/opinion/coronavirus-prisons.html (“Social distancing in prisons in nearly impossible.”); U.S. Dep’t of Justice, FY 2020 Performance Budget Congressional Submission, Federal Prison System, Buildings and Facilities (finding that the size of the inmate population in federal prisons exceeds their rated capacity by 12 to 19 percent), available at https://www.justice.gov/jmd/page/file/1144631/download
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illness, in turn, is often exacerbated by minimal levels of sanitation, limited access of personal
hygiene, limited access to medical care, and no possibility of staying at a distance from others.19
61. Indeed, outbreaks of the flu regularly occur in prisons, and during the H1N1
epidemic in 2009, many jails and prisons dealt with high numbers of cases.20
62. Prisons are not isolated from communities, and infections in prisons give rise to
the risk of “community spread.” Even when prison visitors are reduced, staff, contractors and
vendors go from prisons to communities and can bring infectious diseases into facilities and then
into communities. The turnover of prison populations means that people cycle in and out, as well
as transfer from one facility to another.
63. Such movement creates an ever-present risk that persons, including asymptomatic
carriers, will carry the virus into and out of those facilities, spread infection, and trigger
outbreaks inside and in communities. Prison health is an issue of public health as what happens
in prison has widespread ramifications beyond the walls of the prison. [Meyer Decl. ¶ 8.]21
19 See, e.g., Joseph A. Bick, Infection Control in Jails and Prisons, 45:8 Clinical Infectious Diseases 1047 (Oct. 2007), available at https://academic.oup.com/cid/article/45/8/1047/344842 (incarcerated people at increased risk for transmission of blood-borne pathogens, sexually transmitted diseases, certain antibiotic resistant infections, Staph. Infection, tuberculosis, influenza, and varicellazoster); World Health Organization, Prisons and Health, Infectious diseases in prison at 73 (2014), available at http://www.euro.who.int/__data/assets/pdf_file/0005/249188/Prisons-and-Health.pdf?ua=1.
20 See Interim Guidance for Correctional and Detention Facilities on Novel Influenza A (H1N1) Virus, CDC (May 24, 2009 at 6:00 pm), available at https://www.cdc.gov/h1n1flu/guidance/correctional_facilities.htm; Wen-Cheng Chao, Po-Yu Liu, ChiehLiang Wu, Control of an H1N1 outbreak in a correctional facility in central Taiwan, 50:2 J. MICROBIOLOGY, IMMUNOLOGY AND INFECTION 175 (Apr. 2017), available at https://www.sciencedirect.com/science/article/pii/S1684118215007550; H1N1 outbreak in 2013 inside Canada’s largest correctional facility offers lessons on COVID-19: report, NATIONAL POST (Mar. 24, 2020 at 12:00 am), available at https://nationalpost.com/news/h1n1-outbreak-in-2013-at-canadas-largestcorrectional-facility-being-studied-to-fight-covid-19-inside-prisons.
21 See ACLU, COVID-19 Model Finds Nearly 100,000 More Deaths Than Current Estimates, Due to Failures to Reduce Jails (April 22, 2020), https://www.aclu.org/sites/default/files/field_document/aclu_covid19-jail-report_2020-8_1.pdf (epidemiological model indicating that, “as a result of the constant movement between jails and the
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64. Evidence of the degree of risk in prisons is mounting. The estimate is that recent
outbreaks in the Cook County Jail in Chicago and at the Rikers Island Jail in New York are the highest transmission rates for COVID-19 in the world.22 As of April 20, 2020, eight hundred
New York City correctional employees had tested positive and eight had died. Including
prisoners, there have been 10 deaths and more than 1,200 confirmed cases in New York City’s jails.23
65. In Arkansas, 38% of the positive COVID-19 cases in the state are concentrated in one prison, which has 850 confirmed cases.24
66. As of April 26, 2020, at least 12,613 people in jails and prisons had tested positive for the illness.25 The number of new cases among prisoners is more than doubling each week.
The “curve,” which may be flattening due to social distancing in some localities, is not flattening in prison; to the contrary, the virus is soaring in prisons.26
67. Sixteen prison systems—including the Federal Bureau of Prisons which has
already experienced major outbreaks throughout its network—are not releasing information
broader community, our jails will act as vectors for the COVID-19 pandemic in our communities.”). 22 See Alleen Brown, Inside Rikers: An Account of the Virus-Stricken Jail from a Man Who
Managed to Get Out, Intercept, April 21 2020, https://theintercept.com/2020/04/21/coronavirus-rikersisland-jail-nyc/; Timothy Williams & Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. Times, April 8, 2020, https://www.nytimes.com/2020/04/08/us/coronaviruscook-county-jail-chicago.html.
23 Deanna Paul & Ben Chapman, Rikers Island Jail Guards Are Dying in One of the Worst Coronavirus Outbreaks, Wall Street Journal, April 22, 2020, https://www.wsj.com/articles/rikers-islandjail-guards-are-dying-in-one-of-the-worst-coronavirus-outbreaks-11587547801
24 See Zach Budryk, 38 percent of Arkansas COVID-19 cases concentrated in state prison, The Hill, April 21, 2020, https://thehill.com/homenews/state-watch/493988-38-percent-of-arkansas-covid-19cases-concentrated-in-states-prison
25 Sharon Dolovitch, “Covid-19 Jail/Prison Confirmed Cases & Deaths,” UCLA Covid-19 Behind Bars Data Project, https://docs.google.com/spreadsheets/d/1X6uJkXXSO6eePLxw2e4JeRtM41uPZ2eRcOA_HkPVTk/edit#gid=1197647409.
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about how many prisoners they are testing.27 Of the rest, only eight systems had tested more than 400 of the people in their custody by the week beginning April 20, 2020.28
68. Therefore, the data of more than 12,000 people in prison and jails testing positive
is most likely a significant undercount.
69. In Ohio, mass testing of everyone at the Marion Correctional Institution revealed
1,828 confirmed cases among prisoners, which represents 73% of the population. One hundred and nine staff members at the facility were also positive.29
IV. COVID-19 Infection in the Prison Demographic Is Deadly
70. Many incarcerated individuals are at heightened risk of serious illness and death
from COVID-19 because their demographic profile and histories make them part of a cohort that
is especially vulnerable. People over the age of fifty face greater chances of serious illness or
death from COVID-19. In a February 28, 2020, WHO-China Joint Mission Report, the
preliminary mortality rate analyses showed that individuals age 60-69 had an overall 3.6%
mortality rate and those 70-79 years old had an 8% mortality rate. For individuals 50-59, the
mortality rate was 1.3%. For individuals age 40-49, the mortality rate was 0.4%, and for individuals 40 years and younger, the mortality rate was 0.2%.30
26 See Error! Main Document Only.“Tracking the Spread of Coronavirus in Prisons” THE MARSHALL PROJECT, Apr. 24, 2020 3:05 pm, available at https://www.themarshallproject.org/2020/04/24/tracking-the-spread-of-coronavirus-in-prisons
27 Id. 28 Id. 29 See Bill Chappell & Paige Pfleger, 73% Of Inmates At An Ohio Prison Test Positive For Coronavirus, NPR, April 20, 2020, https://www.npr.org/sections/coronavirus-liveupdates/2020/04/20/838943211/73-of-inmates-at-an-ohio-prison-test-positive-for-coronavirus 30 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (data analysis based on WHO China Joint Mission Report); ICNARC Report on COVID-19 in Critical Care, at 19 (Apr. 17, 2020), available at https://www.icnarc.org/About/Latest-News/2020/04/04/Report-On-2249-Patients-
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71. People of any age who suffer from certain underlying medical conditions,
including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and
dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from
cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma, are at elevated risk as well.31
72. The WHO-China Joint Mission Report provides 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.32
73. In many people, COVID-19 causes fever, cough, and shortness of breath. But for
people over the age of fifty or with medical conditions that increase the risk of serious COVID-
19 infection, shortness of breath can be severe.
74. Most people in higher risk categories who develop serious illness will need
advanced medical help and support. This level of supportive care requires highly specialized
equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians.33
Critically-Ill-With-Covid-19 (in study of 6,750 patients admitted to critical care, finding that majority of patients over 60 died in critical care).
31 Coronavirus disease (COVID-19) advice for the public: Myth busters, World Health Organization, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/mythbusters (“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.”).
32 WHO-China Joint Report at 12, https://www.who.int/docs/default-source/coronaviruse/whochina-joint-mission-on-covid-19- final-report.pdf (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”).
33 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.
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75. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. COVID19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work.
76. Emerging evidence also suggests that COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
77. Even some younger and healthier people who contract COVID-19 are susceptible to severe strokes and may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.34
78. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal
34 See Young and middle-aged people, barely sick with covid-19, are dying of strokes, WASH POST. (Apr. 25, 2020 at 2:12 pm), available at https://www.washingtonpost.com/health/2020/04/24/strokes-coronavirus-young-patients/; see also Covid19 causes sudden strokes in young adults, doctors say, CNN (Apr. 23, 2020 at 7:41 am), available at https://www.cnn.com/2020/04/22/health/strokes-coronavirus-young-adults/index.html.
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influenza, even in advanced countries with highly effective health care systems.35 For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent.
79. Most people in high-risk categories who develop serious illness require advanced medical support, including specialized equipment, such as ventilators, and large teams of highly trained care providers, such as ICU doctors, nurses, and respiratory therapists. [Meyer Decl. ¶ 22]. The artificial ventilation process is itself invasive and dangerous, and some patients must be placed in medically induced comas for such treatment.
80. Given the need for advanced and urgent intervention, often in an ICU environment, people with severe cases of COVID-19 cannot be shackled or otherwise restrained, nor can they be subjected to constant, close supervision by correctional staff, as they would be in a typical correctional setting.
81. FCI Danbury is not equipped to provide advanced support in an ICU setting with ventilators, certainly not for a substantial group of seriously ill prisoners who may require such specialized care.
82. Patients who do not die from serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage, amputation due to clotting and reduced blood flow, loss of respiratory capacity, and tissue damage in other vital organs, including the heart and liver.36
35 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM) https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879; World Health Organization, Q&A: Similarities and differences – COVID-19 and influenza (Mar. 17, 2020), available at https://www.who.int/news-room/q-a-detail/q-a-similarities-and-differences-covid-19-andinfluenza#:~:text=Mortality%20for%20COVID%2D19,quality%20of%20health%20care (COVID-19 crude mortality ratio is between 3-4%; for seasonal influenza mortality is usually well below 0.1%);
36 Centers for Disease Control and Prevention, Interim Clinical Guidance for Management of 30

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83. In sum, to buffer against the outbreak of a highly infectious, deadly virus in a
closed detention setting requires urgent and decisive action to protect the health of those
confined in the prison, those who work there, and the medical professionals who will treat those
who become infected.
V. Spread of Disease in BOP Facilities Requires De-Densifying and Providing Social Distancing for Those Who Remain
84. Available statistics reveal a public health disaster erupting across BOP facilities
that worsens with each passing day.
85. From March 20 to April 25, confirmed COVID-19 cases among BOP prisoners
and staff rose from 2 to 1047 across 42 facilities nationwide.
86. Severe outbreaks at FCI Oakdale in Louisiana, FCI Elkton in Ohio, and FCI
Butner in North Carolina, already have resulted in dozens of confirmed COVID-19 infections
among prisoners and staff, many more suspected but unconfirmed cases, and 22 prisoner deaths throughout the system.37
87. That surge of COVID-19 cases inside the federal prison system has dwarfed the national percentage increase in confirmed cases over the same time period.38
Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl; Melissa 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); 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.
37 Current information about the census of COVID-19 positive prisoners and staff in the Bureau of Prisons system is maintained on a COVID-19 resource page on the Federal Bureau of Prisons website available at https://www.bop.gov/coronavirus. Historical statistics have been compiled and updated daily by the Federal Defenders of New York, Inc. and are available at https://federaldefendersny.org/.
38 Comparisons of the respective increases in confirmed cases of COVID-19 over the last several weeks in the general and prison populations have likewise been compiled by the Federal Defenders of New York, Inc. and are available at https://federaldefendersny.org/.
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88. According to CDC guidelines, only two measures are known to be effective in reducing the spread of this disease: (1) diligent “social or physical distancing,” which involves keeping at least six feet of space between people to avoid transmission of the virus, and (2) vigilant hygiene practices, including frequently washing hands and regularly disinfecting surfaces. Physical distancing is a necessary predicate for hygiene practices to have any meaningful impact.39
89. Because asymptomatic or pre-symptomatic people can transmit the virus to others, it is critical to follow CDC guidelines, including social distancing, even among people who show no signs of COVID-19 and appear to be healthy.
90. The only effective way to minimize the potential devastation from COVID-19 in BOP facilities generally and at FCI Danbury in particular is to downsize immediately the incarcerated population and, for the prisoners who remain at the institution, to undertake aggressively the detection, prevention, and treatment measures that public health and medical experts have recommended, including effective social distancing.
91. These measures are not possible in prisons, like FCI Danbury, without substantial reductions in the prisoner population.
92. What some officials call “modified lockdowns” are not what self-quarantining and social distancing entails. Prisoners and staff interact in many ways, and when facilities have dorm-like arrangements, prisoners sleep, eat, congregate, recreate, and receive medical treatment in close proximity.
39 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html 32

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93. Implementation of necessary hygiene practices is also impossible, particularly
when adequate supplies of free soap, sanitizers, disinfectants, and paper towels are not readily
available in prisons. [Meyer Decl. ¶¶ 9, 11, 39].
94. Correctional public health experts have recommended the release from custody of
people most vulnerable to COVID-19 so as to protect them and permit risk mitigation for all
people held or working in facilities. 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.
95. Calling for immediate and extensive “efforts to decarcerate” to protect both
prisoners and the general public, the New England Journal of Medicine explained:
The boundaries between communities and correctional institutions are porous, as are the borders between countries in the age of mass human travel. Despite security at nearly every nation’s border, Covid-19 has appeared in practically all countries. We can’t expect to find sturdier barriers between correctional institutions and their surrounding communities in any affected country. . . .To promote public health, we believe that efforts to decarcerate, which are already under way in some jurisdictions, need to be scaled up; and associated reductions of incarcerated populations should be sustained. The interrelation of correctionalsystem health and public health is a reality not only in the United States but around the world.40
96. Consistent with these public health recommendations, many jurisdictions have
already taken steps to protect those in custody from the impending spread of COVID-19 by
releasing people in an effort to reduce populations.41
40 Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D., Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons, NEW ENGLAND JOURNAL OF MEDICINE (Apr. 9, 2020), available at https://www.nejm.org/doi/pdf/10.1056/NEJMp2005687?articleTools=true.
41 For example, in Washington, the governor has, as of April 23, commuted almost 300 sentences, and more than 40 people have received work release furloughs; Kentucky’s governor signed an executive order on April 2, 2020, commuting the sentences of 186 people convicted of felonies, and the state plans
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97. In New York City, public officials, the jail oversight board, and doctors working
at Rikers Island have acknowledged that the City’s jails are unsafe and that releasing people is
the medically appropriate and humane option.42 See Statement of New York City Board of
Correction, March 17, 2020 (calling on the City to release people from criminal custody,
prioritizing people over 50, those with underlying health conditions, detained for administrative
reasons, and those who have been convicted and sentenced to one year or less).43
98. On March 20, 2020, Dr. Robert Cohen, a member of New York City’s Board of
Correction, said, “The most important thing we can do right now is discharge all of the people
who are old and have serious medical issues — those people are likely to die from a coronavirus
infection.”44
to release 743 others who are within 6 months of completing their sentences; the governor of Oklahoma has commuted the sentences of more than 450 people; the number of people being paroled from state prisons in Michigan has reportedly increased by about 1,000 people per month to reduce prison density during the pandemic; and the California Department of Corrections and Rehabilitation announced on March 31 that it would expedite the transition to parole for 3,500 nonviolent offenders with 60 days or less left on their sentences. See Responses to the COVID-19 pandemic, Prison Policy Initiative (Apr. 24, 2020), https://www.prisonpolicy.org/virus/virusresponse.html. Numerous cities and counties have also taken steps to reduce jail populations, including: from March 18 to April 15, 2020, the Washington, D.C., jail population decreased by more than 21%; the San Mateo County Sheriff’s Office in California has released 382 people from their two county jails, including those who are 65 and older; after an April 3, 2020, ruling from the Massachusetts Supreme Judicial Court, almost 300 people were released from jails across the state. Id.
42 See Ross MacDonald (@RossMacDonaldMD), Twitter (March 18, 9:51 p.m.) https://twitter.com/RossMacDonaldMD/status/1240455796946800641 (Dr. MacDonald is the Chief Medical Officer for Correctional Health Services (“CHS”), which provides healthcare to New York City’s Department of Corrections); Rachel Bedard, (@rachelbedard), Twitter (March 18, 8:34 a.m.) https://twitter.com/rachaelbedard/status/1240255196644741120 (Dr. Bedard is the Director of Geriatrics and Complex Care for CHS); Jonathan Giftos (@JonGiftosMD), Twitter (March 18, 10:37 p.m.) https://twitter.com/JonGiftosMD/status/1240467288198873088 (until January 2020, Dr. Giftos was the ClinicalDirector of Substance Use Treatment for CHS).
43 New York City Board of Correction Calls for the City to Begin Releasing People from Jail as Part of Public Health Response to COVID-19 (Mar. 17, 2020), https://www.nysenate.gov/newsroom/inthe-news/julia-salazar/nyc-board-correction-calls-city-begin-releasing-people-jail
44 Jen Ransom and Alan Feuer, ‘A Storm Is Coming’: Fears of a Prisoner Epidemic as the Virus Spreads in the Jails, N.Y. Times (March 20, 2020), https://www.nytimes.com/2020/03/20/nyregion/nyccoronavirus-rikers-island.html
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99. Several doctors working in New York City’s jails have echoed the calls to release vulnerable people. Dr. Rachael Bedard, senior director of the geriatrics and complex care service at Rikers Island, has described depopulation as “[t] he only meaningful public health intervention.”45 In correctional facilities, “if you think about how many excess human contacts [there are], even compared to something like a shelter setting, you can imagine why viral spread in this environment is extra dangerous.”
100. Ross McDonald, the Chief Medical Officer for Correctional Health Services, which provides healthcare to New York City’s Department of Corrections, said Rikers was a “public health disaster unfolding before our eyes.” He stressed: “This is not a generational public health crisis, rather it is a crisis of a magnitude no generation living today has ever seen.” He also warned that it was “unlikely” they will be able to stop the growth in the jail, and predicted that 20% of those infected would need hospital treatment and 5% would need ventilators. He called for the release of “as many vulnerable people as possible”46
101. Members of Congress have, likewise, recognized the urgency of reducing prison populations as a means of achieving social distancing in those institutions. On March 23, 2020, a bipartisan group of fourteen U.S. Senators sent a letter to U.S. Attorney General Barr and BOP Director Carvajal to express their “serious concern for the health and wellbeing of federal prison staff and prisoners . . . especially those who are most vulnerable to infection.” The Senators wrote that they reviewed the BOP’s COVID-19 Action Plan and noted that it did not include any
45 Jennifer Gonnerman, A Rikers Island Doctor Speaks Out to Save Her Elderly Patients From the Coronavirus, New Yorker (Mar. 20, 2020), https://www.newyorker.com/news/news-desk/a-rikersisland-doctor-speaks-out-tosave-her-elderly-patients-from-the-coronavirus.
46 Miranda Bryant, Coronavirus spread at Rikers is a 'public health disaster', says jail's top doctor, THE GUARDIAN (Apr. 1, 2020 10:36 am), Available at https://www.theguardian.com/usnews/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster
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measures to protect the most vulnerable staff and prisoners. The Senators urged DOJ and BOP to release to home confinement certain individuals who were elderly, ill, or incarcerated for nonviolent offenses and are near release.
102. Senator Dick Durbin of Illinois, founding Chairman and current member of the Senate Judiciary Committee’s Subcommittee on Human Rights and the Law (subsequently renamed the Subcommittee on Constitution, Civil Rights, and Human Rights) and current ranking member on the Subcommittee on Immigration has called on the federal government to take action to protect staff and people detained in federal prisons. “Federal prisons will inevitably be a hotspot for the spread of coronavirus, especially among vulnerable staff and prisoners,” Durbin said. “It is imperative for BOP to take immediate action to protect staff and prisoners at federal prisons throughout the country and ensure that facilities are prepared to address this threat.”47
103. On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (CARES Act, P.L. 116-136), which authorizes the BOP Director to lengthen the maximum amount of time for which a prisoner may be placed on home confinement “as the Director determines appropriate” when the Attorney General “finds that emergency conditions will materially affect the functioning” of BOP.
47 Durbin Discusses Coronavirus Threat At Federal Prisons With Council Of Prison Locals, Dick Durbin United States Senator Illinois (Mar. 24, 2020), https://www.durbin.senate.gov/newsroom/press-releases/durbin-discussescoronavirus-threat-at-federalprisons-with-council-of-prison-locals; Letter, https://www.durbin.senate.gov/imo/media/doc/Letter.%20to%20DOJ%20and%20BOP%20on%20COVI D-19%20and%20FSA%20provisions%20%20final%20bipartisan%20text%20with%20signature%20blocks.pdf
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104. The authority is limited to “the covered emergency period,” which is defined as the period spanning from the President’s declaration of a national emergency with respect to COVID-19 to the date that is 30 days after the date on which the declaration terminates.
105. The United States Department of Justice has also called for urgent action to reduce prison populations in the BOP to achieve necessary social distancing. On March 26, 2020, Attorney General William Barr sent a memo to the Director of BOP “directing [him] to prioritize the use of [his] various statutory authorities to grant home confinement for prisoners seeking transfer in connection with the COVID-19 pandemic” because “for some eligible prisoners, home confinement might be more effective in protecting their health.”48
106. The Attorney General specifically recognized that “there are some at-risk prisoners who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than BOP facilities.”49
107. Attorney General Barr further identified “[t]he age and vulnerability of the prisoner to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines,” and “the security level of the facility,” with “priority given” to prisoners incarcerated “in low and medium security facilities,” as two of the critical, discretionary factors for consideration. Id.
108. In an April 3, 2020, memorandum to Respondent Carvajal, following the dramatic increases in confirmed COVID-19 cases at FCI Danbury and two other BOP facilities (FCI
48 Memo from Attorney General to Director of Bureau of Prisons, March 26, 2020, https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf
49 Id. 37

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Oakdale in Louisiana, and FCI Elkton in Ohio), Attorney General Barr affirmed the BOP’s “profound obligation to protect the health and safety of all inmates.”50
109. Attorney General Barr stated: “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.”
110. Attorney General Barr further recognized that, despite “extensive precautions to prevent COVID-19 from entering [BOP] facilities and infecting our prisoners,” those measures “have not been perfectly effective.” Accordingly, he ordered the BOP to take more aggressive steps, immediately, to transfer prisoners to home confinement, even if electronic monitoring will not be available.
111. Echoing the warnings of public health experts, Attorney General Barr stated: “Given the speed with which this disease has spread through the general public, it is clear that time is of the essence.” Id.
50 Memo from Attorney General to Director of Bureau of Prisons, April 3, 2020, https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf
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VI. Respondents Have Failed to Proceed as Promptly as Required in this Crisis to DeDensify and to Implement the Necessary Social Distancing at BOP Facilities and at FCI Danbury in Particular 112. Notwithstanding Attorney General Barr’s statements, the recommendations of
public health officials and the efforts of multiple state jurisdictions to decarcerate their prison populations, Respondents have failed to use the BOP’s available statutory authority to reduce the population of FCI Danbury to mitigate the severe risk posed by COVID-19. Instead, the facility has reversed course, refusing to follow through with transfers to home confinement for individuals previously identified for such home confinement based on their medical vulnerability, and failing to timely respond to requests for emergency compassionate relief or to take other measures appropriate for a public health crisis.
113. According to the BOP’s website, from March 26 (the date of Attorney General Barr’s first memo) through April 25, the agency placed 1576 prisoners nationwide into home confinement—which would constitute only 0.9 percent of the approximately 171,000 prisoners currently held in BOP custody. However, the real number of those released to home confinement may well be less. As the Wall Street Journal reported on April 23: “The bureau said it has started placing at least 1,440 of the roughly 175,000 prisoners it holds into home confinement, but didn’t say how many of those people have actually been released.” Sadie Gurman & Rebecca Davis O’Brien, Confusion Hampers Coronavirus-Driven Inmate Releases, Wall Street Journal, April 23, 2020;51 see also Joseph Neff & Keri Blakinger, Few Federal Prisoners Released Under COVID-19 Emergency Policies: A Federal Judge Called the Bureau of Prisons Release Process “Kafkaesque”, The Marshall Project, Apr. 25, 2020 (only 1,027
51 Available at https://www.wsj.com/articles/justice-department-clarifies-coronavirus-driveninmate-releases-11587594242.
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more prisoners allowed to serve the rest of their sentence in home confinement since Attorney General Barr’s April 3 urgent memo, “about half of 1 percent of the more than 174,000 people in the bureau’s custody”).52
114. The BOP has not disclosed the number of prisoners it typically released per day prior to Attorney General Barr’s memos, nor has it disclosed how many new prisoners have entered BOP custody during the same time period. In short, data from the BOP demonstrate that it is not releasing enough prisoners to protect federal prisons from COVID-19.
115. Indeed, despite concerns by government officials and public health experts, the BOP continues to transfer people from facility to facility. Those transfers increase the likelihood that the virus will be transmitted within the incarcerated population.53
116. On information and belief, the first person at FCI Danbury (then housed in the M Unit of the men’s prison) tested positive for COVID-19 on or about March 28, 2020. [Almonte Decl. ¶ 12].
117. Prior to testing positive for COVID-19, the individual was in contact with many prisoners and staff, necessitating a proper public health response to contain the infection, including the immediate introduction of social distancing and enhanced hygiene measures.
118. However, as set forth above, the very configuration of the confined prison space with sleeping quarters and all ancillary facilities in close physical proximity and multiple prisoners in the same physical space and requiring simultaneous access to the limited available resources, precludes the requisite social distancing without dramatic de-densification. Under
52 Available at https://www.themarshallproject.org/2020/04/25/few-federal-prisoners-releasedunder-covid-19-emergency-policies.
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existing conditions, neither class members nor staff in any of the three units at FCI Danbury can stay at least six feet away from other people and, therefore, engage in effective social distancing, as called for by the CDC.
119. Moreover, FCI Danbury has failed to take appropriate action as set forth in the relevant CDC Guidance in response to those tests confirming the existence of the virus within its population but rather, persisted in practices and policies which are contrary to social distancing directives and are inconsistent with the needs for enhanced hygiene.
120. Respondents’ failures to adopt and implement adequate policies and procedures to prevent and mitigate the spread of COVID-19 fall into several broad categories which are discussed below.
A. Failures to Triage Cases, Diagnose and Isolate Disease 121. If an incarcerated person exhibits symptoms of COVID-19, the CDC Guidance calls for the individual to be immediately given a face mask, paced in isolation, provided a medical evaluation and treatment, and evaluated for possible testing. By contrast, FCI Danbury has deliberately not sought out potential cases of coronavirus and has not implemented the measures called for by the CDC Guidance. By failing meaningfully to isolate prisoners and staff who are positive for coronavirus, or who exhibit symptoms highly indicative of coronavirus and present a substantial risk of infecting other prisoners and staff in the unit, the Respondents have been deliberately indifferent to the known serious medical needs of the Petitioner class.
53 Luke Barr, Despite Coronavirus Warnings, Federal Bureau of Prisons Still Transferring Prisoners: Sources, ABC News (Mar. 23, 2020, 1:22PM), https://abcnews.go.com/Health/warningsbureau-prisons-transporting-inmates-sources/story?id=69747416
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122. Since the lockdown began, sick call triage in the men’s facility is conducted by a
social worker without medical training, and who is openly contemptuous of the men’s needs.
[Cassidy Decl. ¶ 18]54
123. At men’s and women’s facilities, prisoners who present for sick call who do not
exhibit fever are denied access to any further medical follow-up. [Id.; Korbe Decl. ¶¶ 4-6,
Hoisington Decl. ¶ 6].
124. Prisoners who complain to staff of symptoms consistent with COVID-19—
including coughing, congestion and shortness of breath—are routinely unable to obtain
immediate medical examination, are not tested for COVID-19, and are returned to the general
population until their symptoms worsen. [Hoisington Decl. ¶¶ 5-7, 14-15; Korbe Decl. ¶¶ 7, 12;
Mason Decl. ¶ 19; Almonte Decl. ¶ 20].55
54 As Mr. Cassidy states: The social worker, Ms. Adamson, has told us “you are all fucking children with nothing more than a flu so stop your shit you’re not going home early.” She has said, “if you did the crime stop crying and do the time.” She has said, “I don’t need medical training to tell you you’re not sick so go lay the fuck down.” [Cassidy Decl. ¶ 18].
55 As Ms. Hoisington – who was subsequently hospitalized with confirmed COVID-19 infection and a temperature of 102 degrees on admission [Hoisington Decl. ¶ 5, 8] – recounts:
I had been feeling sick for a couple weeks before I went to the hospital. I had put in a request to see medical, and had been given two different “idles” to miss programs because I was sick. On March 26 I reported to staff that I wasn’t feeling well ... I went to the medical clinic, but after waiting there for 45 minutes without being seen, I returned to my bunk. A few hours later, I reported to staff on duty that I was feeling worse. I was told to lie back down. By early in the morning of March 27th, around 1 or 2am, I had such bad chest pain that I could not sleep. I told the officer on duty, who called the command center, and then called an ambulance. [Id. ¶ 5-7] Similarly, Ms. Korbe – who has been complaining of a headache, cough and lost sense of smell for over a week, has not been screened for COVID-19 and has been maintained in general population throughout. [Korbe Decl. ¶ 4]. Indeed, Ms. Korbe’s cough was so extreme that one of the psychologist upon hearing the cough told Ms. Korbe that she should be tested because she could be infecting others. Notwithstanding that Ms. Korbe asked the one of the psychologists to assist her to obtain appropriate testing, she has not, to date, been tested for COVID-19. [Id. ¶ 6].
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125. FCI Danbury has further willfully refused to take temperatures or test for fever in order to avoid identifying cases of possible COVID infection. [Almonte Decl. ¶ 15]
126. When prisoners have presented with likely fever, Respondents have on occasion falsely discounted the readings of elevated temperatures in order to avoid taking appropriate follow-up action, including, in particular, isolating the prisoner from the general population and testing to confirm a coronavirus diagnosis.
127. Methods employed by respondents to avoid appropriate follow-up in cases of likely fever include, (1) falsely attributing the reading to equipment error; (2) falsely attributing the reading to operator error; (3) falsely recording identical temperatures for every person tested on a given unit; (4) “resetting” the thermometer while pretending to take another reading; and (5) taking repeat temperature readings after first requiring the prisoner to drink a glass of ice water. [Cassidy Decl. ¶ 14; Mason Decl. ¶¶ 20, 21 (recorded temperatures are artificially low at between 96-97°F because temperature is taken with a remote scanner that is placed too remote from the body; prisoners made to drink cold water after registering elevated temperatures); Korbe Decl. ¶ 5; see also Hoisington Decl. ¶ 8 (reporting that she was transported to the hospital on an emergency basis after persistent symptoms consistent with COVID-19 and that she had a temperature of 102°F on admission after having been told by FCI Danbury staff that a temperature taken within an hour prior to her leaving in the ambulance had purportedly registered a reading of 97°F)].56
56 As Ms. Hoisington states, on April 17, after previously having tested positive for COVID-19, she started to get symptoms again, including weakness, fever, terrible body pains, sweating and dry heaving. She was taken to the medical clinic where her temperature was recorded at 98 degrees (which she believed to be incorrect but which was not re-taken despite her presenting symptoms). Notwithstanding that her oxygenation only registered at 96 and her blood pressure was so high that the
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128. Even where prisoners have presented with confirmed fever, respondents have
failed to isolate the prisoner from the general population. Rather, in many instances, respondents
have returned the prisoner to his or her unit with instruction to take two to three Tylenol and will
only proceed to isolate the prisoner if his or her fever does not respond after that time. [Cassidy
Decl. ¶ 12; Mason Decl. ¶ 20].
129. When temperatures are taken, they are often not being recorded in the medical
records. [Mason Decl. ¶ 21].
130. Prison staff have further denigrated or dismissed prisoners exhibiting clear
symptoms of coronavirus, telling prisoners with headache, body ache, shortness of breath or even
chest pains that there is nothing that they can do, that the prisoner merely suffers from
“overblown flu,” that the prisoner “did the crime” and should “do the time,” and/or that the
coronavirus epidemic is not “going to get you out of prison.” [Cassidy Decl. ¶¶ 9, 18; Korbe
nurse took it three times, the nurse instructed her to take Tylenol and return to her unit. [Hoisington Decl. ¶ 15].
As Mr. Cassidy recounts: “For the last couple weeks, prisoners with a fever are taken to medical. Sometimes, however, a prisoner has a fever and the associate warden attributes the temperature reading to equipment error. When the temperature wand comes up with a low-grade fever, the associate warden will ‘reset’ it and pretend to take another reading. He will announce another number, but he won’t even aim the wand at the prisoner’s forehead. The associate warden does not show the prisoners the LCD screen on the wand that displays the temperature, so we have to go by whatever they tell us. … If the associate warden acknowledges that a prisoner has a temperature, then he will escort the prisoner to medical. At medical, the prisoner is given two or three Tylenol and told that the device is not working properly and that they do not have a fever. This has happened to more than 20 prisoners in my unit. One of the prisoners has been vomiting blood all week. When his temperature was taken in the unit, he was told he has a 101.2 degree fever. When he got to medical, he was given Tylenol, told that his temperature is 98.7 degrees, and sent back to the unit. When he got back to the unit, he told us that they never took his temperature in medical. His forehead was hot. [Cassidy Decl. ¶¶ 13-14].
According to Ms. Korbe, staff members have been taking all of the inmates’ temperatures every day: “They have us line up in rows to do this. I have noticed that everyone in the same row is told that they have the exact same temperature.” [Korbe Decl. ¶ 14].
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Decl. ¶ 16 (staff criticized prisoners’ concern about medical emergency in FSL, telling women to “stay in our lane” because they weren’t doctors)].
131. Respondents’ failure to de-densify the population at FCI Danbury and their inadequate manner of responding to suspected COVID-19 cases places the putative class at an unreasonable risk of contracting COVID-19.
B. Failure to Respond Adequately to Cases of Close Contact or Observe Appropriate Quarantine/Isolation
132. CDC Guidance directs prisons to implement 14-day quarantines/isolation of prisoners or staff who have had contact with people known to have tested positive for COVID19, to monitor such Close Contact Cases for COVID-19 symptoms, and to keep staff members out of the facility unless they are asymptomatic 14 days after their exposure to COVID-19. Contrary to this Guidance, Respondents routinely fail to test or isolate prisoners with known close contact with individuals subsequently diagnosed with coronavirus. [Cassidy Decl. ¶¶ 31, 41; Hoisington Decl. ¶¶ 14, 17 (recounting failure to test prisoners in close contact with prisoner hospitalized with COVID-19 infection)].
133. Prisoners who test positive for COVID-19 are frequently returned to the general population far earlier than appropriate pursuant to CDC Guidance.57 [Declaration of Tamika Somerville, submitted herewith as Exhibit I (“Sommerville Decl.”) ¶ 13 (women testing positive for COVID-19 on Tuesday returned to the unit that same Friday); Madore Decl. ¶ 12; Cassidy Decl. ¶ 15 (reporting that two individuals returned to the unit within 5-6 days after testing
57 As set forth in the Declaration of Tamika Somerville, who is housed in the FSL, a woman in her unit who tested positive for COVID-19 on a Tuesday was returned to the general population on Friday, three days later. [Somerville Decl., ¶ 13].
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positive for COVID-19, resulting in a substantial outbreak on the unit); Almonte Decl. ¶ 17; Mason Decl. ¶ 18].
134. Due to staff shortages, prisoners are often required to respond to a medical emergency such as another prisoner collapsing on the unit. Notwithstanding that the collapse of a grown man in the context of a pervasive outbreak is highly suggestive of a COVID-19 infection, prisoners who respond in this fashion are not thereafter followed for possible infection or otherwise isolated from the rest of the population. [Cassidy Decl. ¶ 31; Hoisington Decl. ¶ 13 (women had to bang front door to facility to get attention of someone in parking lot when there was no available officer to attend to women who was unconscious after hitting her head on concrete floor)].58
135. Contrary to CDC Guidance, prison staff, including those working in food services, have not been allowed to call in and explain that they are sick or have returned to work at times when medical professionals advised that they were still potential carriers. [Martinez Brooks Decl. ¶ 20; Mason Decl. ¶ 15 (“Officers have returned to work after being unable to get their FMLA papers signed, but remain symptomatic. One officer stated that they still feel ill and do not want to be at work, but were told to return.”)].
136. Working correctional officers who are sick or who were previously diagnosed as positive for COVID-19 have advised prisoners to keep their distance since they do not know whether they are sufficiently recovered to no longer present a risk of infection to people with whom they come in contact. [Mason Decl. ¶ 15].
58 Mr. Cassidy has observed at least three prisoner medical emergencies that were addressed only by other prisoners.
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137. FCI Danbury has failed to observe appropriate isolation for new prisoners, and prisoners have been permitted into the facility without observance of proper quarantine pursuant to CDC Guidance. [Martinez-Brooks Decl. ¶ 12].
138. Respondents’ failure to implement appropriate isolation procedures is reckless and places the putative class at an unreasonable risk of contracting COVID-19.
C. Failure to Remediate Adequately Spaces with Known Coronavirus Contact and to Inform Prisoners of the Extent of Infection
139. In the event a prisoner or staff member tests positive for COVID-19, CDC Guidance calls for the facility to close off the areas used by that person. These areas are to be well ventilated for at least 24 hours before they are disinfected by people equipped with proper personal protective equipment (“PPE”). Respondents have failed to implement any of these measures.
140. In addition, FCI Danbury has departed from CDC Guidance by not informing incarcerated prisoners that someone in their unit has tested positive for COVID-19, thereby depriving petitioners and the class members of the opportunity to exercise more vigilance in their hygiene and cleaning habits when extra vigilance is needed most. Petitioners and the putative class members have not been informed of the extent of the outbreak at FCI Danbury. [Mason Decl. ¶ 16 (FSL prisoners learned about COVID-19 outbreak in the facility because it was reported on the news)]; Declaration of Theresa Foreman, submitted herewith as Exhibit J (“Foreman Decl.”) ¶ 19 (the Assistant Warden informed the women that they wouldn’t be told if they were exposed to COVID-19)].
141. Respondents know that these failures to adequately remediate spaces with known coronavirus contact or to advise petitioners and the putative class members of the extent of the
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outbreak at the facility unnecessarily heightens the risk that petitioners and the putative class members will contract COVID-19.
D. Failure to Implement Adequately Social Distancing Measures 142. As set forth above, the very configuration of FCI Danbury precludes meaningful social distancing. The overwhelming majority of the facility’s prisoners in each of the three facilities are housed dormitory-style and all prisoners in these configurations sleep within 3 to 4 feet of between 3 and 5 other prisoners. [Mason Decl. ¶ 7; Martinez-Brooks Decl. ¶ 7; Cassidy Decl. ¶ 31; Declaration of Ronald Harper, submitted herewith as Exhibit N (Harper Decl.) ¶ 4]. Prisoners use the same bathrooms and share a limited number of toilets, sinks and showers. [Mason Decl. ¶ 10; Martinez-Brooks Decl. ¶¶ 6, 10; Cassidy Decl. ¶ 32; Harper Decl. ¶ 4]. Prisoners further must share a limited number of telephones and computers which are located close together in a common area [Mason Decl. ¶ 8; Martinez-Brooks Decl. ¶ 9; Cassidy Decl. ¶¶ 35-36] and which are rarely cleaned or disinfected (and are not disinfected after each use). [Korbe Decl. ¶ 11; Cassidy Decl. ¶¶ 35-36]. 143. FCI Danbury has failed to implement adequate social distancing measures in other aspects of prison life. For example, prisoners are regularly unnecessarily made to line up in close proximity to one another to receive their meals and when medications are dispensed. [Almonte Decl. ¶ 13; Cassidy Decl. ¶ 39 (“Staff give out medication twice a day. They shout ‘medication’ and stand outside the door. Prisoners form a pill line, standing right next to each other. If you don’t hear ‘medication’ you don’t get your medication for the day, so everyone comes up at the same time and crowds each other.”)].
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144. Prisoners likewise mass together for commissary which, in the dorms in the men’s units, is brought into the central dormitory hallway in a laundry bin. The men on the dorm then stand in the narrow hallway in close proximity to one another while waiting for their names to be called. [Cassidy Decl. ¶ 37].
145. Prisoners further congregate in close proximity in unacceptably large numbers in recreation areas and in common areas to watch television, to use the telephones and computers, and for meals. [Declaration of Antrum Coston, submitted herewith as Exhibit K (“Coston Decl.”) ¶ 4; Almonte Decl. ¶ 8; Mason Decl. ¶¶ 8-9].
146. Staff move regularly between units, in contravention of proper social distancing practices, thereby exacerbating the spread of undiagnosed disease from one part of the facility to another. [Martinez-Brooks Decl. ¶ 19 (staff move between all four dorms in the camp for count, food delivery and commissary and staff at camp also work at the other two facilities at FCI Danbury)].
147. Respondents have inappropriately moved prisoners from rooms where greater separation was possible into dorms in the women’s camp, pushing the populations of A, B and C dorms to almost full capacity, thereby dramatically reducing the ability of occupants of those dorms to practice any form of social distancing. [Martinez-Brooks Decl. ¶ 5]. Despite the lockdown at the camp, women from one dorm out for recreation have been visiting friends in other dorms. [Id. ¶ 15].
148. Respondents have further isolated prisoners nearing the end of their sentences and preparing for halfway house or other release, but subsequently rendered such isolation
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ineffective by moving other prisoners with unknown COVID-19 exposures onto those previously isolated units. [Martinez-Brooks Decl. ¶ 13].
149. Respondents further initially isolated medically-vulnerable prisoners who were notified that they were going to be transferred to home confinement but, after reversing policy and putting such transfers on hold, have rendered those isolations ineffective—and have put medically-vulnerable prisoners at undue risk—by moving other prisoners with unknown COVID-19 exposures onto those previously isolated units. [Id.].
150. Respondents’ failure to implement adequate social distancing measures places petitioners and the putative class members at unnecessarily heightened risk of contracting COVID-19.
E. Failure to Implement Necessary Hygiene Measures 151. CDC Guidance requires heightened hygienic, cleaning and disinfecting practices in order to prevent and mitigate COVID-19 infection. FCI Danbury has failed adequately to implement these heightened hygienic and cleaning practices. Petitioners do not have access to the cleaning supplies necessary to sanitize themselves, their personal items, or their living areas. 152. Prisoners at FCI Danbury are responsible for cleaning their own cubicles or dormitory spaces. Prisoners do not have adequate cleaning supplies, shared living spaces throughout the facility are not regularly or properly disinfected to prevent the spread of COVID19. [Madore Decl. ¶ 6]. 153. Common spaces are cleaned by prisoners who are assigned jobs as cleaners, but many women have quit their jobs and cleaning has been sporadic. [Martinez-Brooks Decl. ¶ 9;
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Almonte Decl. ¶ 22]. The common toilets, sinks and showers are not regularly or properly disinfected to prevent the spread of COVID-19.
154. Telephones, computers and video calling equipment and televisions shared by hundreds of prisoners are not cleaned or disinfected between uses and the common areas in which that equipment is located is not regularly or properly disinfected to prevent the spread of COVID-19. [Cassidy Decl. ¶¶ 36-37].
155. No professional or staff cleaners have sanitized the units where prisoners who tested positive have been housed, but instead those units are being cleaned by prisoner orderlies with the same cleaning supplies they regularly use and without provision of sufficient gloves and masks. [Martinez-Brooks Decl. ¶ 8; Mason Decl. ¶ 8; Almonte Decl. ¶ 22; Declaration of Shannon Benson, submitted herewith as Exhibit L (Benson Decl.”) ¶ 8; Cassidy Decl. ¶ 33; Coston Decl. ¶¶ 7, 15).
156. FCI Danbury has provided inadequate access to soap and sanitizers. The prison has not created any hand-washing stations or provided prisoners with hand sanitizer. [Coston Decl. ¶ 15; Somerville Decl. ¶ 10; Mason Decl. ¶ 12]. Nor has hand sanitizer been available in the commissary for the duration of the current COVID-19 crisis. [Coston Decl. ¶ 15]. Liquid soap dispensers have only recently been installed in the men’s prison, but they are not regularly restocked and the prisoners have to wait a day or two to get it refilled. [Cassidy Decl. ¶ 34 (men’s unit)].
157. There are no paper towels or hand towels, so prisoners have to use toilet paper or their clothing to dry their hands. [Cassidy Decl. ¶ 34; Martinez-Brooks Decl. ¶ 8].
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158. Soap must be purchased from the commissary and is unavailable to indigent prisoners. Prisoners are not provided with cleaning supplies either.59 [Cassidy Decl. ¶ 34].
159. The prison does not distribute shampoo, toothpaste or mouthwash which must be purchased from the commissary and are, therefore, unavailable to indigent prisoners. [Id.].
160. Since the epidemic, laundry is done once a week (depending on the availability of hot water or staff to perform the function), leaving used clothing and bedding exposed to the virus. [Cassidy Decl. ¶ 20].
161. Prisoners in the facility have further been assigned to handle laundry, mattresses and bedding of individuals isolated for COVID, exposing those prisoners in turn to possible infection.
162. Isolation facilities are further inadequate and unhygienic. The isolation room at the FSL is cold and small, with just enough room for a bed and a toilet. The bed has a one-inch thick mattress and no pillow. The toilet’s flush is controlled by the corrections officer and is only flushed a few times a day. [Hoisington Decl. ¶ 11].
163. FSL subsequently required overflow isolation for individuals returning from hospital or with confirmed diagnosis positive for COVID-19 and was required to convert the visiting room at the facility. Four women were housed in the visiting room and were required to use the visiting room bathrooms and had to shower in a temporary stand-up stall built in the bathroom to enable them to bathe. [Id. ¶ 13].
164. Some prisoners who are in quarantine are held in a room with no running water.
59 During the early weeks of the crisis, respondents actively confiscated spray bottles that prisoners used for cleaning. Those spray bottles are now only available to prisoners in the counselor’s office. [Almonte Decl. ¶ 21].
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165. Men have been isolated in an observation cell where they do not have consistent access to meals and showers and often experience medication delays. Men isolated in observation cells were further unable to communicate with their families or other prisoners in the facility. [Declaration of Richard Johnson, submitted herewith as Exhibit M, ¶¶ 7-8].
166. More than 40 women in the FSL are currently quarantined in the facility’s dining hall/kitchen. [Hoisington Decl. ¶ 17].
167. The FSL frequently has issues with water which is often shut off for a few hours or for as long as a day at a time, during which time nobody in FSL is able to wash their hands or flush the toilet. [Mason Decl. ¶ 11].
168. Cleaning is now sporadic in many areas of the camp since prisoners who were previously assigned to clean different areas of the facility have either quit their jobs or have been isolated in different dorms from their assigned cleaning area. [Martinez-Brooks Decl. ¶ 8].
169. These unsanitary conditions and inadequate levels of cleaning and disinfecting, which are in contravention of the CDC Guidance, place petitioners and the putative class members at an inexcusably higher risk of contracting COVID-19.
F. Failure to Plan Adequately to Prevent or Mitigate the Spread of COVID-19 Infection
170. CDC Guidance recommends that correctional facilities should develop contingency plans for reduced workforces due to staff absences. That Guidance also calls for the provision of PPE and contingency planning for shortages of PPE. FCI Danbury has failed to adequately plan for either inevitable staff shortages or the need for PPE, placing petitioners and the putative class members at heightened risk.
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171. As set forth above, respondents have required correctional staff who were ill— including correctional staff in close contact with individuals exposed to COVID-19 and correctional staff who were confirmed positive for COVID-19—to return to work before they were symptom-free and earlier than appropriate pursuant to applicable CDC Guidance. [Mason Decl., ¶ 15].
172. Prisoners at FCI Danbury were not provided with fabric masks until in or about mid-April. [Mason Decl. ¶ 13]. Prior to that time, prisoners were dependent on paper masks or had to fashion their own masks. [Id.]. However, in many parts of the facility, FCI Danbury only provides one mask per prisoner and, therefore, prisoners have no protection when their masks are being washed. [Somerville Decl. ¶ 11]. Several prisoners in the men’s prison are dependent on paper disposable hospital masks that fall apart when they come in contact with water. [Cassidy Decl. ¶ 40].
173. Prisoners—including prisoners on cleaning duty—are not provided with gloves to protect their hands from exposed surfaces. [Id.; Foreman Decl. ¶ 16].
174. Correctional officers and staff, likewise were not provided with fabric masks until approximately mid-April. [Mason Decl. ¶ 14].
175. Moreover, usage of PPE is inconsistent and correctional staff does not enforce mask usage on prisoners who refuse to cover their faces, [Cassidy Decl. ¶40], nor does correctional staff consistently wear masks or gloves when they are on the units. [MartinezBrooks Decl. ¶ 16; Cassidy Decl. ¶ 41].
G. Failure to Implement the Training and Interventions Necessary to Prevent the Spread of COVID-19
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176. CDC Guidance states that correctional staff and incarcerated people should be trained on donning, doffing and disposing of PPE. CDC Guidance further recommends that correctional facilities post signage informing staff and incarcerated people how to report COVID-19 symptoms and advising staff to stay at home when sick. FCI Danbury has failed adequately to implement either of these training and educational interventions. [See, e.g., Cassidy Decl. ¶ 42 (staff go into quarantine units and then return to units that are purportedly COVID-free without changing gloves and masks or will remove gloves without washing hands)]. FCI Danbury has further failed to provide prisoners or staff with clear guidance on what to do to protect themselves and prisoners are often reluctant to report symptoms because they have no expectation that they will receive effective treatment and fear being isolated away from their friends and property in quarantine units that are often insufficiently hygienic. [Mason Decl. ¶ 22].
H. Respondents’ Failures to Respond to the COVID-19 Epidemic Have Further Put Petitioners and Putative Class Members at Unacceptably Heightened Risk of Injury and Illness Unrelated to COVID-19
177. Respondents’ failure to prepare adequately for the COVID-19 epidemic has also put petitioners and the putative class members at heightened risk of other injury and illness.
178. FCI Danbury is experiencing significant staff shortages. Many correctional officers are absent and those who are working are putting in significant overtime.
179. The performance of the duties of correctional officers is being augmented by noncorrectional staff (such as medical or educational staff) who cover units when there are insufficient correctional staff. [Cassidy Decl. ¶ 30].
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180. As a result of staff shortages, correctional officers and other staff are often only available on the units for limited amounts of time, generally for count, resulting in significantly extended response times in the event of emergencies on the units. On at least one occasion, when a prisoner experienced chest pains on a unit in which no correctional officer was present, other prisoners on the unit were required to yell out the window in the hopes that a staff member could hear them and could respond to the medical emergency. [Cassidy Decl. ¶ 31; Hoisington Decl. ¶ 13 (on one occasion in isolation unit in FSL visiting room, one of the quarantined prisoners fell in the bathroom and hit her head on the concrete floor, rendering her unconscious. There was no nearby guard and the prisoners were required to bang on the locked front door to the facility; help only arrived because someone in the parking lot heard the prisoners and called control)].
181. As a result of the increased attention to the COVID epidemic, non-virus medical needs have gone unattended. The regular prison physicians have been absent or are no longer available to prisoners on the unit, prisoners who do not present with fever during sick call cannot be referred to a physician, and sick call requests for other than virus symptoms go unanswered for prolonged periods of time. [Cassidy Decl. ¶ 17; Martinez-Brooks Decl. ¶ 23].60
182. Recently, the prison pharmacy has been closed. Medications must be shipped from another facility (USP Allenwood in Pennsylvania) resulting in delays in their delivery and disruption of medication regimens. [Cassidy Decl. ¶ 7 (two week delay in receipt of correct dosage of medication); Martinez-Brooks Decl. ¶ 23 (8 day delay in refill of hypertension medication)].
60 Mr. Cassidy suffers from intestinal disease, including diverticulitis. [Cassidy Decl. ¶ 5]. He has recently developed an abnormal growth in the rectum which has resulted on occasion in dark black blood in feces and obstruction of his bowel. Although he has made at least three requests for a medical
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183. Special medical diets are not available to prisoners at FCI Danbury. As a result, on repeated occasions, special-diet prisoners have received meals containing ingredients dangerously harmful to their health, including, for example, delivery of meals containing peanut products to allergic patients at risk of anaphylaxis, or delivery of meals containing rice and beans to prisoners with diverticulosis. [Cassidy Decl. ¶¶ 20, 22; Martinez-Brooks Decl. ¶ 22 (peanut butter was served multiple times in a dorm housing a woman with severe peanut allergy)].
184. As a result of the epidemic, food service has been reduced below BOP guidelines for caloric intake and nutritional value; food reductions put petitioners and putative class members at heightened risk of adverse health effects. [Cassidy Decl. ¶ 21].61
185. Respondents’ failures to respond appropriately to the coronavirus outbreak in FCI Danbury has, likewise, endangered prison staff. In an “Imminent Danger Report” filed with the Occupational Safety and Health Administration (“OSHA”) on March 31, 2020, the President of the union that represents many BOP staff reported health and safety hazards across many BOP facilities – including FCI Danbury – related to COVID-19, including:
a. Contrary to CDC guidelines, officials have directed staff throughout the BOP who have come into contact with, or been in close proximity to, individuals who show or have shown symptoms of COVID-19, to report to work and not self-quarantine for 14 days;
visit to assess and diagnose his condition, he has been advised that his condition is not an emergency and that the medical team is currently unavailable to evaluate him. [Id. ¶ 17].
61 The COVID-19 pandemic has also resulted in worrisome curtailment of prisoners’ legal rights. The prison law library has been closed and locked and the administrative remedy process has been suspended indefinitely. Legal mail is being delayed and at times not picked up due to staff shortages. Legal calls are being denied and legal requests from attorneys are often going unanswered, including for open and pending cases that require access to attorneys such as the development of pleadings in connection with motions for compassionate release. [Cassidy Decl. ¶¶ 25-27].
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b. The BOP has violated CDC Guidelines by continuously moving prisoners by bus and/or airlift to various prison sites across the nation, including infected prisoners, prisoners suspected of being infected, and prisoners who have been in close contact with, or proximity to, infected prisoners;
c. The BOP has failed to introduce workplace controls to mitigate exposure or further exposure to the virus, such as high efficiency air filters to minimize the airborne nature of the virus or otherwise improve ventilation;
d. The BOP has failed to minimize contact within recreation areas, education areas, counseling/treatment rooms, resulting in prisoners and staff coming in dangerously close contact with each other; and
e. The BOP has failed to comply with OSHA Personal Protective Equipment Standards.62
VII. FCI Danbury Is Not Prepared to Treat Individuals Who Contract Coronavirus 186. Prisoners who do contract COVID-19 are at higher risk for developing acute
symptoms than if they were in the community, because FCI Danbury lacks the medical resources to care for symptomatic prisoners, creating a continuing unacceptable danger to petitioners and putative class members.
187. Now that COVID-19 is inside the facility, FCI Danbury will be unable to stop the spread of the virus throughout the facility given long-documented inadequacies in BOP’s medical care and in light of how these facilities function.
62 Available at https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha7-form-national-complaint.pdf .
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188. There is no separate medical unit or facility for ill prisoners at the men’s facility or either facility for women. Unlike many Federal Correctional Institutions, FCI Danbury has no physical space in which an ill prisoner can convalesce that is separate from other prisoners, warm, clean and has access to fresh water and regular hand-washing.
189. On information and belief, FCI Danbury has woefully inadequate numbers of nasal swab COVID-19 test kits, requiring correctional staff to ration those few available kits and to refuse testing to prisoners clearly exhibiting symptoms of COVID-19 infection. As a result of the lack of testing and confirmation of actual infections in the facility, FCI Danbury is failing to implement appropriate isolation practices thus accelerating the spread of the infection within the institution.63
190. FCI Danbury currently has no ventilators and cannot intubate prisoners on-site. FCI Danbury does not have any specialized equipment or medical providers.
191. On information and belief there are only 2 (and possibly fewer) doctors available at FCI Danbury to care for all 1,046 prisoners. Even this highly limited number is likely to decrease as doctors themselves go into quarantine. None of these doctors specializes in infectious diseases.
63 Earlier in April 2020 the warden at Metropolitan Correctional Center in Manhattan, a BOP facility, advised in a letter to United States District Judge Paul Engelmayer that MCC could not test a defendant in a matter pending before that court exhibiting COVID-19 symptoms because “MCC New York does not have COVID-19 tests.” See No COVID-19 tests available for prisoners at center of New York outbreak, court documents show, ABCNews (April 4, 2020, 6:00 am), available at https://abcnews.go.com/Health/covid-19-tests-prisoners-center-york-outbreak-court/story?id=69969077. At the same time, Bureau of Prisons officials confirmed to ABC news that FCI Oakdale prisoners showing symptoms in the middle of an outbreak at that facility wouldn’t be tested because tests were too scarce. Id. At the same time, another federal facility in New York, the Metropolitan Detention Center in Brooklyn, court filings before U.S. District Judge Rachel Kovner revealed that only seven of 1,700 prisoners in that facility had been tested. Id.
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192. People who contract COVID-19 can deteriorate rapidly, even before a test result can be received. They need constant monitoring. Most people in the higher risk categories will require more advanced support: positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Such care requires specialized equipment in limited supply as well as an entire team of specialized care providers. FCI Danbury does not have that specialized equipment or specialized providers.
193. FCI Danbury is short-staffed. As of April 25, 2020, 38 staff members have tested positive and several more are symptomatic; correctional officers are understandably hesitant to come to work. This staffing shortage will only increase as employees need to stay home to care for children whose schools are closed, elderly family members, and other personal health situations. With fewer staff, correctional officers are less able to monitor prisoners’ health. VIII. The Situation at FCI Danbury Imposes Undue Risks on the Surrounding
Community that result in further harm to the Petitioner Class 194. FCI Danbury is located in Fairfield County, Connecticut—the hardest hit area of the State with over 10,500 confirmed cases of COVID-19 infection and 707 deaths as of April 27, 2020.64 195. Diseases in prison put staff and surrounding community at risk. When the COVID-19 virus is introduced to a prison, all persons within the facility – whether they are staff or incarcerated people – are at heightened risk of contracting the virus and, in turn, spreading the virus to others with whom they live or come into contact with in their own homes and neighborhoods.65 The harm caused by a COVID-19 outbreak in a correctional facility, therefore,
64 COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), https://www.arcgis.com/apps/opsdashboard/index.html
65 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case 60

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is not confined to those who are incarcerated or work in that facility. Instead, this harm poses a serious health risk to the surrounding community on which Petitioner class needs to rely for health care as well as for general services through staffing of FCI.
196. For example, scarce community health resources like emergency departments, hospital beds, and ventilators would inevitably become more scarce in the event of a COVID-19 outbreak in a detention facility, because incarcerated people are more likely to have underlying medical conditions that carry a significantly increased risk of severe complications from COVID-19.
197. A COVID-19 outbreak would exceed the capacity of the local health infrastructure because treatment for serious cases requires significant medical intervention, including ventilator assistance and intensive care support. If the need for ICU beds and lifesaving medical equipment exceeds supply, the death rate will increase for the entire population of Connecticut.
CLAIM FOR RELIEF (Declaratory and Injunctive Relief for Violation of the Eighth Amendments) 198. Petitioners reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein 199. Respondents are holding Petitioners and all putative class members in violation of the Constitution by detaining them in the face of significant threats to their health and safety without taking sufficient steps to prevent that harm.
for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/
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200. Respondents’ failure to provide adequate medical care in response to a widespread outbreak of a contagious disease constitutes deliberate indifference to the serious, known medical needs of detainees, thereby establishing a violation of the Eighth Amendment of the United States Constitution.
201. Because of the conditions at FCI Danbury, Petitioners are not able to take steps to protect themselves—such as social distancing, using hand sanitizer, washing their hands regularly, and disinfecting their surroundings—and the government has not provided adequate protections. As COVID-19 rapidly spreads at FCI Danbury in a matter of days, as experts predict, the already deplorable conditions at FCI Danbury will be exacerbated, and the ability to protect oneself will become even more impossible.
202. Respondents’ failure adequately to protect Petitioners from these punitive conditions, or release them from the conditions altogether, constitutes deliberate indifference to the serious known medical needs of Petitioners, and all members of the Class, thereby establishing a violation of the Eighth Amendment of the United States Constitution.
203. Respondents were aware of the medical needs of the population and the pervasiveness of prisoners and staff exhibiting COVID-19 symptoms throughout the prison.
204. Respondents knew of and disregarded an excessive risk to health and safety. 205. Respondents failed to act with reasonable care to mitigate these risks. 206. Because Respondents failed to act to remedy Petitioners’ and the Class’s degrading and inhuman conditions of confinement in violation of their Eighth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus.
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207. Because of the unlawful conduct of Respondents, Petitioners and the Class are threatened with imminent physical injury, pain and suffering, emotional distress, humiliation, and death.
208. Petitioners have no adequate remedy at law and will suffer irreparable harm unless the court acts immediately to grant the relief requested herein.
THE NEED FOR ENLARGEMENT AS A PROVISIONAL REMEDY 209. Federal district courts have authority, when habeas actions are pending, to “enlarge” the custody of petitioners. Enlargement is not release. Rather, it is a provisional remedy that modifies custody by expanding the site at which it takes place, upon order of the court, from a particular prison to another setting; as requested here, to home confinement. See Exhibit B, Declaration of Professor Judith Resnik Regarding Enlargement and the Use of Provisional Remedies for Detained Individuals ¶¶ 28-29. The enlargement power stems from Congress’s authorization of federal judges under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require” as well as the courts’ inherent powers. See 28 U.S.C. § 2243. 210. To qualify for the enlargement remedy, an individual must show “extraordinary circumstances” and that the underlying claim raises “substantial claims.” Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). 211. Petitioners and the putative Subclass members meet these requirements because of the extreme risk that COVID-19 poses, especially in light of their ages and medical conditions, and because of the particular conditions of confinement at FCI Danbury. If petitioners and putative Subclass members remain incarcerated, there is a high risk that they will
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contract COVID-19 and, as a result, suffer severe illness or death. Immediate release to permit petitioners and putative Subclass members to serve their sentences on home confinement during the pendency of this action is thus the only way to effectuate the eventual habeas remedy.
PRAYER FOR RELIEF WHEREFORE, Petitioners and proposed class members respectfully request that this Court:
a. Certify the proposed Class and Subclass pursuant to Fed. R. Civ. Pro. 23(B)(1) and (B)(2);
b. Pursuant to 28 U.S.C. § 2243 and this Court’s inherent powers, enlarge petitioners and Subclass members pending disposition of the underlying petition;
c. Issue a Writ of Habeas Corpus and/or pursuant to Fed. R. Civ. Pro. 65, enter a temporary restraining order, preliminary injunction, and permanent injunction requiring Respondents to release from custody or to home confinement members of the Subclass and requiring Respondents to provide medically adequate social distancing and health care and sanitation for members of the Class who remain;
d. Enter an order pursuant to 28 U.S.C. § 2201-2202, declaring that Respondents' policies and practices regarding COVID-19 violate the Eighth Amendment to the United States Constitution;
e. Appoint a special master pursuant to Fed. R. Civ. Pro. 63 or an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding the number of incarcerated people that FCI Danbury can house consistent with CDC Guidance on best social distancing and hygiene practices to prevent the spread of COVID-19.
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f. Issue a Writ of Habeas Corpus and/or pursuant to Fed. R. Civ. P. 65 enter an injunction requiring Respondents to: 1. Ensure that incarcerated individuals can remain six feet apart to practice social distancing in compliance with CDC Guidance; 2. Ensure that each incarcerated individual receives a free and adequate personal supply of: hand soap sufficient to permit frequent hand washing, paper towels, facial tissues, cleaning implements such as sponges or brushes, and disinfectant products that are effective against COVID-19; 3. Ensure that all individuals have access to hand sanitizer containing at least 60% alcohol; 4. Provide daily access to showers and clean laundry, including clean towels after each shower; 5. Require that all FCI Danbury staff wear PPE consistent with the CDC Guidance, including masks and gloves, when interacting with visitors and incarcerated individuals or when touching surfaces in common areas; 6. Provide an anonymous mechanism for incarcerated individuals to report staff who violate these guidelines so that appropriate corrective action may be taken;
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7. Take each incarcerated person's temperature daily (with a properly disinfected and accurate thermometer) to identify potential COVID-19 infections;
8. Assess each incarcerated individual daily through questioning to identify potential COVID-19 infections;
9. Conduct immediate testing for anyone displaying known symptoms of COVID-19;
10. Immediately provide clean masks for all individuals who display or report potential COVID-19 symptoms until they can be evaluated by a qualified medical professional or placed in non-punitive quarantine and ensure the masks are properly laundered with replacements as necessary;
11. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, commissary, phone and video visitation with loved ones, communication with counsel, and personal property;
12. Clean and disinfect frequently touched surfaces with disinfectant products effective against the virus that causes COVID-19 (at the manufacturer's recommended concentration), as well as surfaces in common areas, every two hours during waking hours, and at least once during the night;
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13. Ensure incarcerated people are provided guidance on how to protect themselves from COVID-19 and reduce COVID-19 transmission;
14. Assure incarcerated people are told that they will not be retaliated against for reporting COVID-19 symptoms;
15. Respond to all emergency (as defined by the medical community)requests for medical attention within an hour;
16. Provide incarcerated individuals with sufficient and effective cleaning supplies free of charge so that they may clean frequently touched items, such as phones, before use;
17. Provide frequent communication to all incarcerated individuals regarding COVID-19, measures taken to reduce the risk of infection, best practices for incarcerated people to avoid infection, and any changes in policies or practices;
18. Craft a mechanism to ensure compliance through the appointment of an independent monitor with medical expertise to ensure compliance with these conditions, and provide the monitor with unfettered access to medical units, confidential communication with detained individuals in and out of quarantine, and surveillance video of public areas of the facilities;
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Case 3:20-cv-00569-MPS Document 111 Filed 06/16/20 Page 68 of 69 g. Retain jurisdiction over this case until Defendants/Respondents have fully
complied with the orders of this Court, and there is a reasonable assurance that they will continue to comply in the future, absent continuing jurisdiction; h. Award appropriate attorneys’ fees; and i. Grant such further relief as the Court deems just and proper.
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Dated: June 16, 2020

Respectfully Submitted,
/s/ Jonathan M. Levine___________________ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver, Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Phone: (203) 325-4491 Email: dgolub@sgtlaw.com
jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Phone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu
tessa.bialek@quinnpiac.edu
Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org
Alexandra Harrington 127 Wall Street New Haven, CT 06511 Phone: 203-436-3532 alexandra.harrington@yale.edu
Counsel for the Petitioners Jackie Madore, Amanda Cooper and James Whitted

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EXHIBIT A

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Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system. In making the following statements, I am not commenting on the particular issues posed this case. Rather, I am making general statements about the realities of persons in detention facilities, jails and prisons.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I was paid $1,000 for my time drafting an earlier version of this report filed in another case. I subsequently prepared this version of the report without receiving payment for my services.
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6. I testified as an expert at a single trial or by deposition in the past four years: State v. Frank Sanville, Docket No. 263-3-18 Wrcr (Vermont) on April 21, 2020.
II. Heightened Risk of Epidemics in Jails and Prisons
7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a
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lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, 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/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place. Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html.
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potentially transmit the virus to others.
25. Systems are challenged to respond to COVID-19 guidelines that are modified on a neardaily basis. It may be impossible to adequately respond to the COVID-19 pandemic, while also respecting the rights and dignity of people who are incarcerated.
IV. Possible Risks of COVID-19 in Federal Bureau of Prisons Facilities in Danbury, Connecticut
26. From approximately 2017-2018, I volunteered to provide AIDS Awareness Programming for all women housed at the Camp and the Satellite Low (FSL) facilities at FCI Danbury. In doing so, I interacted with the resident inmates in common meetings areas on a monthly basis in groups as small as 10 and as large as 100. I have additionally toured all areas of the FSL facility in January 2018 with leadership from the National Association of Women Judges. I last entered the facilities in approximately Summer 2018.
27. The FSL facility is comprised of a single large dormitory style room, in which all of the women sleep on bunks. There is also a library, a laundry room, a group meeting area, and a space for exercise. In the adjoining building, there are multiple classrooms and meeting spaces. There was an infirmary staffed intermittently by a physician or nurse practitioner, who was available for sick call. For other medical needs, women were brought into the men’s facility to see the healthcare provider by appointment. All serious medical needs and specialty visits were referred to the nearby Danbury Hospital. Per the BOP webpage, as of April 23, 2020, there were 165 women housed at FSL. The layout of the space would make it impossible for these women to practice social distancing.
28. When I last visited the Camp, it was comprised of a single floor of cells, each of which held 2-3 women. I understand that the building has since been reconfigured and the women are now housed in large dormitory style rooms. Per the BOP webpage, as of April 23, 2020, there were 153 women housed at the Camp. Dormitory style housing makes it impossible for prisoners to practice social distancing.
29. Per BOP reports, as of April 23, 2020, there are 15 inmates with confirmed COVID-19 infection, 32 staff members, and 1 death. These numbers do not include the number of inmates and staff who previously tested positive and have since recovered. For example, on April 15, a news article said that BOP reported 44 inmates and 39 staff infected at FCI Danbury. It is unclear in which compound the COVID+ inmates resided on the Danbury BOP campus. Given that all spaces in both women’s facilities on the Danbury BOP campus are communal, there is high likelihood that if a single case entered the facility, many more will follow in what some have called a “tinderbox scenario.” The large number of cases in FCI Danbury to date reflects widespread disease in the surrounding community and is evidence that FCI Danbury is unable to mitigate or contain the spread of disease.
30. During my visit to FSL in January 2018, I had the opportunity to meet with many of the women to discuss their experiences of confinement without any correctional officers present. The women I met with had significant medical issues, including serious
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cardiovascular, neurologic, and psychiatric conditions. They described significant delays in receiving medical attention for issues both large and small. Any delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
31. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
32. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
33. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
34. Failure to keep accurate and sufficient medical records will make it more difficult for facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
35. Many women at FSL spoke only Spanish and reported significant challenges participating in groups and classes, which were at the time only offered in English. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
36. Facilities with a track record of neglecting individuals with acute pain and serious health needs under ordinary circumstances are more likely to be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
37. Similarly, facilities with a track record of failing to adequately manage single individuals in need of emergency care are more likely to be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
38. For individuals in facilities that have experienced these problems in the past, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
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V. Conclusion and Recommendations
39. Reducing the size of the population in jails and prisons is crucial to reducing the level of risk both for those within those facilities and for the community at large. As such, from a public health perspective, it is my recommendation that individuals who can safely and appropriately remain in the community not be placed in BOP facilities at this time. I also recommend that individuals who are already in these facilities should be evaluated for release.
40. This is more important still for individuals with preexisting conditions (e.g., heart disease and hypertension, chronic lung disease, chronic liver disease, suppressed immune system, morbid obesity, diabetes) or who are over the age of 65.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

I declare under penalty of perjury that the foregoing is true and correct.

April 2__4, 2020 Wilton, Connecticut

_______________________ Dr. Jaimie Meyer

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EXHIBIT B

Case 3:20-cv-00569-MPS Document 111-2 Filed 06/16/20 Page 2 of 14 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
DECLARATION OF PROFESSOR JUDITH RESNIK REGARDING ENLARGEMENT AND THE USE OF PROVISIONAL REMEDIES FOR DETAINED
INDIVIDUALS
I have been asked to make this declaration to explain my understanding of the remedies, both provisional and permanent, that federal judges can provide to people who are incarcerated and facing the threat of COVID-19. Because I have practiced in the District of Connecticut for decades and represented prisoners before the federal court here, I have had personal experience with the use of enlargement in habeas corpus cases. Given that this provisional remedy is not regularly discussed in reported decisions or in academic analyses, I believe that my experiences and knowledge can be useful to the Court. This opinion is mine and is not that of the institutions with which I am affiliated. I declare that the following is a true and accurate account of my own work as a lawyer, of the pertinent legal principles as I understand them, and of how these precepts can apply in this unprecedented context.
My Background
1. I have worked on occasion as a lawyer, including in the clinical programs at Yale Law School and at U.S.C. I have appeared before the United States Supreme Court and in federal district and appellate courts. I have also been appointed by federal judges to assist in issues arising in large-scale litigation. Below, I provide a few aspects of my work particularly relevant to this declaration. I attach my resume as Exhibit A to this Declaration.
2. From 1977 until 1980, I was a supervising attorney at Yale Law School’s clinical program, which then provided legal services to federal prisoners housed at F.C.I. Danbury.
3. I am now the Arthur Liman Professor of Law at Yale Law School where I teach courses, including on federal and state

Case 3:20-cv-00569-MPS Document 111-2 Filed 06/16/20 Page 3 of 14 2

courts; procedure; large-scale litigation; federalism; and incarceration.

4. I have taught law for decades. Much of my focus has been on the role and function of courts, and the relationship of governments to their populations. I regularly teach the class entitled Federal and State Courts in the Federal System. Readings for students include materials on habeas corpus and on civil rights litigation.

5. In 2018, I was awarded an Andrew Carnegie Fellowship to work on a book, tentatively entitled Impermissible Punishments, which explores the impact of the 1960s civil rights revolution on the kinds of punishments that governments can impose on people convicted of crimes. Central to this book is the role that access to courts played for people held in detention.

6. I am the Founding Director of the Arthur Liman Center for Public Interest Law. The Liman Center teaches classes yearly, convenes colloquia, does research projects, supports graduates of Yale Law School to work for one year in public interest organizations, and is an umbrella for undergraduate fellowships at eight institutions of higher education.

7. I write about the federal courts; adjudication and alternatives such as arbitration; habeas corpus and incarceration; class actions and multi-district litigation; the judicial role and courts’ remedies; gender and equality; and about transnational aspects of these issues. In recent years, I have spent a good deal of time doing research related to prisons. I have helped to develop a series of reports that provide information nation-wide on the use of solitary confinement.

8. In February of 2019, I testified before the U.S.

Commission on Civil Rights at its hearing on women in prison and

co-authored a statement related to the isolation of many facilities

for women, their needs for education and work training, and the

discipline to which they are subjected. See Statement submitted

for the record, Women in Prison: Seeking Justice Behind Bars,

before the U.S. Commission on Civil Rights, March 22, 2019. The

report, published a few months ago, reference this testimony. See

U.S. Commission on Civil Rights, Women in Prison: Seeking Justice

Behind

Bars

(February

2020),

available

at

https://www.usccr.gov/pubs/2020/02-26-Women-in-Prison.pdf.

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3
Remedies Available in the Federal Courts: Habeas Corpus, Civil Rights Litigation, and Enlargement
9. In light of my knowledge of the federal law of habeas corpus, state and federal court relations, procedure, and remedies, I have been asked by counsel for the petitioners/plaintiffs to address the range of responses available to judges presiding in cases that raise claims related to COVID19.
10. As I understand from public materials on the health risks of this disease, COVID-19 poses a deadly threat to the well-being and lives of people who contract this disease. To reduce the risk and spread of this disease, our governments have instructed us to stay distant from others and to take measures that are extraordinary departures from our daily lives and routines.
11. Applying these urgent medical directives to prisons poses challenges in every jurisdiction. Governing legal principles about prisoners’ access to courts were not framed to address COVID19’s reality: that being inside prisons that are densely populated can put large numbers of people (prisoners and staff) at risk of immediate serious illness and potential death.
12. These unprecedented risks from and harms of COVID-19 in prison raise a new legal question: whether COVID-19 has turned sentences which, when imposed, were (or may have been) constitutional into unconstitutional sentences during the pendency of this crisis.
13. When sentencing people to a term of years of incarceration, judges had no authority to impose putting a person at grave risk of serious illness and death as part of the punishment for the offense. Now, such grave risks and harms can arise from the fact of incarceration.
14. A recent Supreme Court case, Montgomery v. Louisiana, 136 S.Ct. 718 (2016), provides an analogous situation - a constitutional-when-sentenced but unconstitutional-now sentence. The Court determined that, in light of new understandings of the limits of brain development in juveniles, sentences of life without parole (LWOP) imposed on individuals who had committed crimes when under the age of eighteen were lawful when issued but became unconstitutional. As a consequence, parole boards or courts had to reconsider whether LWOP remained appropriate. COVID-19 raises a parallel question, as it requires courts to address whether sentences lawful at imposition can (at least temporarily) no longer

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be served in prisons because otherwise, the sentence would become an unconstitutional form of punishment. In normal times, using Montgomery v. Louisiana as a guide, federal judges could remit eligible individuals to state courts and parole boards. But in these abnormal times, the speed at which decisions are made is critical. Therefore, as I discuss below, provisional remedies (enabling enlargement and release for some individuals and dedensifying for others) are necessary.
15. The classic and longstanding remedy for relief from unconstitutional detention, conviction, and sentences is habeas corpus. The Constitution enshrined the remedy of habeas corpus, which has a substantial common law history and is codified in federal statutes. See generally Paul D. Halliday, Habeas Corpus (Harvard U. Press, 2012); Amanda L. Tyler, Habeas Corpus in Wartime (Oxford U. Press, 2017); Randy Hertz and James Liebman, Federal Habeas Corpus Practice and Procedure (2 volumes, 2019); Hart & Wechsler, The Federal Courts and the Federal System, Chapter X1, 1193-1164 (Richard H. Fallon, Jr, John F. Manning, Daniel J. Meltzer & David Shapiro, 7th ed., 2015). These citations are the tip of a vast and substantial literature that aims to understand the history and law of habeas corpus.
The Legal Thicket
16. As is familiar, in federal courts, federal petitioners file under 28 U.S.C. §2255 (post-conviction motions) and under §2241 (the general habeas statute), both of which are civil actions.
17. For example, when I worked at Yale Law School in its clinical program in the late 1970s, we filed lawsuits for federal prisoners predicated on 28 U.S.C. §2241 as well as (in appropriate situations) on 28 U.S.C. §1331 (general question jurisdiction) and 28 U.S.C. §1361 (mandamus), and in several instances, we filed cases as class actions. In the mid-1970s, the Supreme Court provided rules and forms for §2254 and §2255 filings. The Federal Rules of Civil Procedure supplement those rules.
18. Congress has recognized that federal judges are authorized under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” See 28 U.S.C. §2243. In addition to this statutory authority, federal judicial power is predicated on the constitutional protection of the writ and on the common law.

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19. Congress has channeled and circumscribed some of federal judicial authority through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and, relatedly, under the Prison Litigation Reform Act (PLRA) of 1996. Moreover, the Supreme Court has issued many decisions interpreting the prior habeas statutes, the 1996 revisions in AEDPA, and the intersection of habeas and civil rights claims brought under 42 U.S.C. §1983. The result is a dense arena of law and doctrine that can be daunting for litigants and jurists alike.
20. Some Supreme Court decisions, written to address claims by state prisoners, have delineated litigation focused on the fact or duration of confinement, for which release is the remedy and habeas is the preferred route, from challenges to conditions of confinement, for which the Court has required use of 42 U.S.C. §1983. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1978); Heck v. Humphrey, 512 U.S. 477 (1994). Yet that distinction is hard to apply, and many opinions have identified that the overlap, as exemplified by Mohammad v. Close, 540 U.S. 744 (2004), Wilkinson v. Dotson, 544 U.S. 74 (2005), and by other Supreme Court and lower court decisions.
21. COVID-19 poses a new and painful context in which to undertake that analysis. Some reported decisions addressing the constitutional right of prisoners that officials not be “deliberately indifferent to serious medical needs” consider those Eighth Amendment claims to be appropriate for §1983 because they relate to conditions. But this deadly disease turns ordinary conditions into potentially lethal threats of illness for which the remedy to consider is release of at least some prisoners because density puts people at medical risk.
22. Because COVID-19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement. In my view, COVID-19 claims, therefore, collapse the utility and purpose of drawing distinctions between what once could more coherently be distinguished.
23. Courts need also to consider how COVID-19 fits (or not) with provisions of AEDPA and the parameters of the PLRA. Again, new problems have emerged. For example, in some contexts for state and federal prisoners, a question of exhaustion of remedies arises. Often one issue is the ability of the executive branch to respond quickly. In the COVID context, day by day, the risk of illness increases for prisoners and staff, which endanger health care resources. Exhaustion would be “futile” if other branches of

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government are not prompt in response and if people become sick, risks skyrocket, and deaths occur.
24. “Futility” thus needs to be analyzed in terms not only of the capacity of institutions but in terms of the likelihood that the people seeking relief will be well enough to have the capacity to do so, and that the remedy provided will be effective given the alleged harm.
25. Other legal issues include when class actions are appropriate and the criteria of Rule 23 are met; the merits of arguments about unconstitutional sentences and conditions; and the range of remedies.
The Availability of Provisional Remedies
26. The reason to flag some of the many issues that litigation of both habeas petitions and civil rights cases entail is to underscore the importance of considering provisional remedies when cases are pending. In general, time is required for lawyers to brief and for judges to interpret and apply the law. But waiting days in a world of COVID infections can result in the loss of life.
27. While courts have not faced COVID before, they have faced urgent situations, which is why provisional legal remedies exist. Courts have two ways to preserve the status quo – which here means protecting to the extent possible the health of prisoners, staff, and providers of medical services. One route is the use of temporary restraining orders and preliminary injunctions. These remedies require no explanation because they are familiar procedures. See Fed. R. Civ. Pro. 65.
28. Another option is an aspect of federal judicial power that is less well known. District courts have authority when habeas petitions are pending to “enlarge” the custody of petitioners. “Enlargement” is a term that, as far as I am aware, is used only in the context of habeas. (More familiar terms for individuals permitted to leave detention are “release” and “bail,” and some decision that “enlarge” petitioners use those words rather than enlargement).
29. The distinction is that enlargement is not release. The person remains in custody - even as the place of custody is changed and thus “enlarged” from a particular prison to a hospital, halfway house, a person’s home, or other setting. Enlargement is a

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provisional remedy that modifies custody by expanding the site in which it takes place. In some ways, enlargement resembles a prison furlough.
30. Enlargement has special relevance when the PLRA has application. As I understand the PLRA’s rules on the “release” of prisoners, enlargement would not apply, as enlargement is not a release order. And, of course, interpreting the many directives of the PLRA in light of COVID entails more elaboration that my comments here.
31. The need to work through that statute and case law is another reason why the availability of provisional remedies is so important. Enlargement provides an opportunity for increasing the safety of prisoners, staff, and their communities while judges consider a myriad of complex legal questions.
32. I first encountered the provisional remedy of enlargement in the 1970s, when I represented a prisoner – Robert Drayton – who was confined at F.C.I. Danbury and who filed a habeas petition alleging that the U.S. Parole Commission had unconstitutionally rescinded his parole.
33. The Honorable T.F. Gilroy Daly, a federal judge sitting in the District of Connecticut, granted Mr. Drayton’s request for enlargement while the decision on the merits was pending. Mr. Drayton returned to his home in Philadelphia and came back to Connecticut for the merits hearing. Judge Daly thereafter ruled in his favor; that decision was upheld in part and reversed in part. See Drayton v. U.S. Parole Commission, 445 F. Supp. 305 (D. Conn. 1978), affirmed in part, Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
34. Judge Daly did not write a decision explaining the enlargement. Given that I knew that the use of enlargement was not always recorded in published decisions and that enlargement had special relevance here, I decided I should learn more about other courts’ discussion of this provisional remedy.
35. The provisional district court remedy of enlargement is not mentioned directly in in federal rules governing the lower federal courts. In contrast, at the appellate level, Federal Rule of Appellate Procedure (FRAP) 23 provides in part that:
While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of

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either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. While a decision ordering the release of a prisoner is under review, the prisoner must – unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise – be released on personal recognizance, with or without surety.
As that excerpt reflects, the Rule uses language familiar in the context of bail and provides that appellate courts may also determine that a petitioner be detained in “other appropriate custody.”
36. Federal courts at all level are authorized by Congress to decide habeas cases “as law and justice requires.” 28 U.S.C. §2243. The case law also references that, at the district court level, the authority to release a habeas petitioner pending a ruling on the merits stems from courts’ inherent powers. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). And, as I noted, in these reported decisions, the terms “bail” or “release” are sometimes used instead of or in addition to “enlargement.”
37. In the last weeks, the saliency of enlargement has prompted me to review more of the law surrounding it. To gather materials and opinions on enlargement, I asked two law students, Kelsey Stimson of Yale Law School and Ally Daniels of Stanford Law School, to help me research what judges have said about enlargement and what others have written. Below I detail some of the governing case law. The Hertz & Liebman Treatise on Habeas also has a section (§14.2) devoted to this issue.
38. Some of the decisions involve requests for release when habeas petitions were pending from state prisoners, and others from federal prisoners, or from people in immigration detention. Further, several appellate cases address the issue of whether a district court order on enlargement was appealable as of right or subject to mandamus.
39. My central point is that, amidst these various debates about appealability and the test for enlargement/release, most circuits have recognized that district courts have the authority to order release. See e.g., Woodcock v. Donnelly, 470 F.2d 93, 43 (1st Cir. 1972); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); Dotson v. Clark, 900

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F.2d 77, 79 (6th Cir. 1990); Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981): Baker v. Sard, 420 F.2d 1342, 1342-44 (D.C. Cir. 1969).
40. The Fourth and Eleventh Circuits appear, albeit less directly, to recognize enlargement authority. See Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990); United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002). A Ninth Circuit opinion from 1989 likewise appears to recognize the power of district courts to grant release pending a habeas decision where there are “special circumstances or a high probability of success.” See Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). Thereafter, another decision, In re Roe, described the Circuit as not having ruled on the issue in terms of state prisoners. See 257 F.3d 1077 (9th Cir. 2001).1
41. A discrete question is the standard for enlarging petitioners. To obtain an order for release pending the merits of habeas decision, the petitioner must demonstrate “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See e.g. Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). Courts have also discussed that release is appropriate when “necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226; see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). As that Third Circuit decision explained, release was “available ‘only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.’”
42. Some judges have interpreted the “substantial questions” prong to require the underlying claim to have a “high probability of success.” See Hall v. San Francisco Superior Court, No. C 095299 PJH, 2010 WL 890044, *1 (N.D. Cal. Mar. 8, 2010); In re Souels, 688 F. App'x 134, 135 (3d Cir. 2017). That test resembles standards for preliminary injunctive relief and for stays, which
1 Subsequent lower court cases debated whether district courts do possess such authority. See, e.g., Hall v. San Francisco Sup. Ct., 2010 WL 890044, at *2 (N.D. Cal. Mar. 8, 2010) (“Based on the overwhelming authority [of other circuit courts] in support, the court concludes for purposes of the instant motion that it has the authority to release Hall pending a decision on the merits.”); United States v. Carreira, 2016 U.S. Dist. LEXIS 31210, at *4, (D. Haw. Mar. 10, 2016) (“[T]his Court declines to address the merits of Petitioner’s bail requests in the absence of definitive guidance from the Ninth Circuit regarding the scope of this Court’s bail authority.”).

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include an assessment of the likelihood of success on the merits and of whether the balance of hardships tips in favor of altering the status quo. (And, of course, more can be said about the nuances of these bodies of law as well.)
43. A few cases focus on the health of a petitioner as central to the conclusion that “extraordinary circumstances” exist. For example, in Johnston v. Marsh, the petitioner, Alfred Ackerman, brought a habeas claim alleging that he was convicted in Pennsylvania through a trial that lacked “due process.” 227 F.2d 528 (3d Cir. 1955). Ackerman asked for release pending a decision on the merits of his habeas petition; he argued that he had advanced diabetes and was “rapidly progressing towards total blindness.” Id. at 529. The district court authorized Ackerman to be released to a private hospital. The prison warden (Frank Johnston) went to the Third Circuit invoking sought writs of prohibition and mandamus to order the district court (Judge Marsh) to change his ruling. Rejecting the petitions, the Third Circuit affirmed that district courts possessed the authority to order relocation while the habeas petition was pending. Johnson v. Marsh has been cited in more recent cases to illustrate that findings of extraordinary circumstances may “be limited to situations involving poor health or the impending completion of the prisoner’s sentence.” Landano, 970 F.2d at 1239.
44. The court in In re Souels addressed what showing of health problems constituted extraordinary circumstances. See 688 F. App’x at 135-36. Sean Souels, who was serving a 46-month federal prison sentence, petitioned for a writ of mandamus directing the court to rule on his writ of habeas corpus and sought release pending the decision. Id. at 134. The court denied Souels bail because “he [did] not describe his medical conditions in any detail or explain how he cannot manage his health issues while he is in prison.” Id.
45. Health is not the only extraordinary circumstance that has been the basis for enlargement. For example, in United States v. Josiah, William Josiah brought a writ of habeas corpus after the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (ACCA) and altered the method for determining whether prior convictions qualify as violent felonies under the ACCA. 2016 WL 1328101, at *2 (D. Haw. Apr. 5, 2016). Josiah, who was serving a federal prison sentence argued that his prior convictions did not qualify as violent felonies and that he should not be subject to the fifteen-year mandatory minimum. The district court concluded that because the issue of retroactivity was pending before the Supreme Court and Josiah would have served his full

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sentence if the Court held its prior ruling retroactive, release pending the higher court’s ruling was appropriate. Id. at *4-6.
46. In circumstances similar to Josiah, a district judge sitting in the Central District of Illinois issued three orders granting release, termed bail, to petitioners pending resolution of their habeas claims. See Zollicoffer v. United States, No. 1503337, 2017 WL 79636 (C.D. Ill. Jan. 9, 2017); United States v. Jordan, No. 04-20008, 2016 WL 6634852 (C.D. Ill. Nov. 9, 2016); Swanson v. United States, No. 15-03262, 2016 WL 5422048 (C.D. Ill. Sept. 28, 2016).
47. Another case involved enlargement in the context of the military. See Gengler v. U.S. through its Dep't of Def. & Navy, 2006 WL 3210020, at *6 (E.D. Cal. Nov. 3, 2006). As that court explained, a “district court has the inherent power to enlarge a petitioner on bond pending hearing and decision on his petition for writ of habeas corpus.” Id. at *5. The judge also noted that a “greater showing must be made by a petitioner seeking bail in a criminal conviction habeas ‘than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt.’” The court used the test of “exceptional circumstances and, at a minimum, substantial questions as to the merits.” Id. at 13. The court found exceptional circumstances” based on the fact that the petitioner had been admitted to business school, had been granted permission by his commanding officer to attend, and would be forced to drop out if his custody were not enlarged. The court also ruled that “substantial questions as to the merits” existed because of alleged government’s errors in drafting the petitioner’s service agreement. Id. at *6.
48. As of this writing, I have located three reported cases on COVID. (Given the pace of litigation, I assume that more may have been filed and some decided.)
49. On April 7, the Honorable Jesse Furman, sitting in the Southern District of New York, granted on consent a motion styled “for bail” (the term used in the Second Circuit Mapp decision). Judge Furman ordered immediate release under specified conditions, pending the adjudication of the Section 2255 Motion. See United States v. Nkanga, No. 18-CR-00730 (S.D.N.Y., Apr. 7, 2020).
50. A second case involves a class action filed by Craig Wilson and others. See Wilson v. Williams, No. 4:20-cv-00794-JG, 2020 WL 1940882, at *1 (N.D. Ohio Apr. 22, 2020). Seeking to represent a class of all current and future prisoners of the Elkton

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Federal Correctional Institution (FCI) and a subclass of the medically vulnerable population, they sought relief because their continued incarceration subjected all FCI prisoners to substantial risk of harm in violation of the Eighth Amendment.

51. On April 22, 2020, the federal district court granted in

part the request by the Wilson class for emergency relief, which

included enlargement of a subclass of prisoners challenging the

manner in which the sentence was served and hence cognizable as a

habeas petition. See Wilson v. Williams, No. 4:20-cv-00794-JG,

2020

WL

1940882

(N.D.

Ohio

Apr.

22,

2020)

52. The third case has less relevance as it was brought by an unrepresented litigant, Richard Peterson, who had originally sought habeas corpus relief on a claim about education credits and then filed an emergency request for release from a California state prison due to COVID-19. No. 2:19-CV-01480, 2020 WL 1640008, at *1 (E.D. Cal. Apr. 2, 2020). The district court noted that a class action raising COVID claims was pending in another federal court in California and that, while the court had the authority to release a person while a habeas petition was pending, Mr. Peterson had not provided evidence sufficient to meet the test to do so.

Conclusion

53. In sum, COVID-19 is an unprecedented event that, in my view, raises the legal question of whether, in light of the government mandates for social distancing, sentences (that had been lawful when they were imposed) cannot lawfully be served when the setting puts an individual in a position of untenable risk. Thus, habeas corpus – which addresses the constitutionality of sentences and offers the possibility of release and enlargement – properly provides a jurisdictional basis and remedies for this situation.

54. I need also to note that, in recent years, the Supreme Court has raised questions in many contexts about the remedial powers of federal judges. Whether the topic is nationwide injunctions or commercial contracts, debates have occurred within the Court about the authority of federal judges.

55. Those cases do not address the extraordinary and painful moment in which we are all living. Ordinary life has been up-ended in an effort to keep as many people as possible alive and not debilitated by serious illness. Moreover, Supreme Court opinions have not focused on the relevance of remedial debates to the situation were confinement can put entire staffs and detained

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populations at mortal risk. Therefore, judges have the obligation and the authority to interpret statutes and the Constitution to preserve the lives of people living in and working in prisons. It is my hope that this account of earlier uses of enlargement in this District and the dense account of case law and doctrine will be of service to this Court and to the parties in understanding the meaning and import of American law.
Dated: April 23, 2020
__________________________ Judith Resnik

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EXHIBIT C

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Declaration of Dianthe Martinez-Brooks
1. I am currently in custody at Danbury FCI in the minimum security women’s camp (the “Camp.” My Bureau of Prisons (“BOP”) Register Number is 71331-050.
2. I am 50 years old. I have asthma, hypertension, arthritis, and systemic lupus erythematosus (SLE), an autoimmune disease. I take Atenolol for hypertension. For my asthma, I have a Proventil emergency inhaler and use an Asmanex Twisthaler (mometasone furoate inhalation powder, 220mg). Since my incarceration began, I have been prescribed steroids once for the joint and muscle inflammation associated with my lupus.
3. I am serving a sentence of 48 months for wire fraud. My release date is 6/25/2022.
4. At the Camp, there are rooms and dorms containing bunk beds. There are 9 rooms, each that can hold 4 to 5 women. There are four dorms: Dorms A, B, C, and D.
5. Before the lockdown on April 15, there were approximately 43 women in the 9 small rooms. On April 15, these women from the rooms were moved to the dorms.
6. I am currently housed in Dorm A. Dorm A has 48 women in it right now, who share 4 showers and 3 toilets. Dorm B has 48 women sharing 5 toilets and 6 showers. In Dorm C, 46 women share 5 toilets and 5 showers. In Dorm D, 7 women are currently sharing 3 showers and 3 toilets.
7. In the dorms, women sleep on bunk beds, with 2 women per bunk bed. The bunk beds are in cubicles. In many of the cubicles, the beds are positioned so they reach from one end of the cubicle to the other—so the only separation between the bed in one cubicle and the bed in the next is the wall of the cubicle, which does not reach to the ceiling. Beds positioned parallel to the wall of the cubicle are also not six feet away from beds in the next cubicle.
8. All cleaning in the Camp is done by prisoners, and cleaning has been sporadic. Many women have quit their jobs. Women are responsible for cleaning their own cubicles.
9. There is a common area in the Camp containing phones, computers, video chat machines, sinks for dishwashing, and hot water taps. There are also common recreation rooms containing tables, chairs, cards, and games. Women also share ice machines where they scoop out ice.
10. There are open bathrooms that can be used by all on the upper level and in the old visiting room.
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11. We are currently on a lockdown at the Camp. Each dorm has 45 minutes of recreation in the morning and 1 hour of recreation later in the day. These are the only times of day that we can access the common areas in the Camp with the phones, recreation rooms, etc.
12. I know of two women who self-surrendered to the Camp at the end of March. One came straight into the Camp and the other was quarantined first.
13. Some women have been told that they are on a list for home confinement and would be quarantined before released. On April 6, 23 women were put in Dorm C for quarantine. On April 7, 5 more women were put in Dorm C. On April 10, they moved some women from Dorm C into Dorm D and then added an additional 28 women to both Dorm C and Dorm D. On April 15, they took all the women who were housed in the rooms and added them to Dorms A, B, and C. At that time, the Camp went into lockdown.
14. Of the approximately 56 women placed in quarantine in the first 2 weeks of April, I am aware of only 4 that have left from Dorm D and one that has left from Dorm C. One of these women was granted compassionate release by the court. I understand that 2 of the other releases were COVID-19 related. The others were at or near the end of their sentences.
15. Even though there is a lockdown, women from different dorms are continuing to comingle. During recreation, women are visiting friends who live in different dorms.
16. Not all staff are regularly wearing masks and gloves.
17. There is no hand sanitizer for use by prisoners or staff.
18. Staff are serving meals. Prisoners are used to assist in food preparation, cooking, and cleaning the kitchen.
19. Each day, staff move between all four dorms in the Camp for count, food delivery, and commissary. We have staff in the Camp that have been at the other two facilities at FCI Danbury. Medical staff see prisoners at all three facilities.
20. Three correctional officers who have been at the Camp have said that they had COVID19, including one who works in food service.
21. There is no actual medical clinic in the Camp. Instead, there are a series of offices: two are used by medical staff, one by dental staff, and one by psychology. RNs come for pill line in the morning and in the late afternoon. If you are sick, you must go to morning pill line and fill out a sick call request. You then must wait to be called in and it can take days. If there is an emergency, a correctional officer must call for a medical professional to come to the Camp because there is not a medical professional at the Camp 24 hours a day.
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22. I have a severe peanut allergy. I had a reaction on April 15 when peanut butter was served for dinner and I had to leave the dorm. To date, peanut butter has been served in the dorm 7 times. Medical staff have told me that I should leave for at least an hour to allow the dorm to air out. I have expressed my concerns about this to staff repeatedly.
23. Since I have been incarcerated at FCI Danbury, I have had multiple problems accessing basic medical care. In October 2019, I had difficulty being seen for an upper respiratory infection and my daughter had to contact the facility. It took 8 days for me to be seen and 11 days to get the medication that I needed. In February 2020, I was left without my asthma medication for more than 4 weeks when my prescription ran out. My daughter again needed to contact the facility. My blood pressure medicine ran out on April 2 and my prescription did not reach me until April 10.
24. Since my incarceration, I have only been prescribed steroids once for the joint and muscle inflammation associated with my lupus and have not been brought to see a rheumatologist. I also suffer from migraines and TMJ and have not received treatment for those conditions in BOP custody.
25. On March 26, 2020, I asked the warden for compassionate release.
26. I was given paperwork to sign on April 19 relating to home confinement and/or a halfway house. Then a new memo came out on 4/21/20 saying that if you haven’t completed 50% of your sentence you are ineligible. Another memo came out on 4/23/20 saying you must have completed 25% of your time and have 18 months or less remaining on your sentence.
27. There has been no access to the law library for women working on current legal cases and no copy cards available to purchase.
28. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
______/s/_______________ Dianthe Martinez-Brooks
April 26, 2020
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EXHIBIT D

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Declaration of Kenneth Cassidy I, Kenneth Cassidy, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register Number is 48169-054. I arrived at FCI Danbury on January 21, 2020, my 54th birthday. 2. I am assigned to D Unit. D Unit is a dorm unit, can accommodate up to 80 prisoners, and currently houses approximately 66 prisoners. 3. I am serving a sentence of 5 years arising from a conviction for conspiracy to commit wire fraud and willful failure to file an income tax return. I have no violent offenses on my record. The BOP calculates my release date to be March 31, 2021. My projected home confinement release date is October 1, 2020. At sentencing, the Court recommended to the BOP that I serve the final year of my sentence at a halfway house. 4. While in the BOP, I have completed the 40-hour non-residential drug treatment program and taken courses on diabetes and personal finance. I am on waiting lists to take courses to become an OSHA-certified laborer and legal assistant. I have never had an incident report while in BOP. 5. I have had three heart attacks. I have had pneumonia in my right lung more than 20 times, and have been told that I have the lungs of a 70-year-old. I suffer from many serious chronic medical conditions including asthma, coronary artery disease, hypertension, Prinzmetal angina, cervical disc disease, lumbar disc disease, gastroesophageal reflux disease (GERD), Barrett’s esophagus, and diverticulitis resulting in a hernia in the colon wall. I have a soft tissue mass on my upper cervical spine resulting in partial paralysis that requires immediate surgery

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upon my release. I cannot digest rice, beans or greens. I am severely allergic to ragweed, shellfish, trees and chlorophyll (including in green vegetables). I am morbidly obese.
6. My current medications include an albuterol inhaler, Lisinprol, Metropolol, Atorvastatin, Nitroglycerin, Docusate and Lasix, as well as breathing treatments and oxygen treatments in the medical department as needed.
7. Our pharmacy is currently closed because the pharmacist is out. Our medication is being shipped in from FCC Allenwood with several days’ delay. As a result, I did not receive the correct dose of my medication for two weeks in April.
8. The COVID-19 virus has ravaged FCI Danbury. Approximately 80% of prisoners in my unit show flu-like symptoms including fever, coughing, body aches, shortness of breath, chest pressure, and headaches.
9. The prison staff’s response has been disrespectful, degrading, dehumanizing and threatening. Social worker Adamson has said to me, “It’s not that big. Don’t worry about it. We got it under control,” “This is nothing more than an overblown flu. You guys are all becoming hypochondriacs. You’re paranoid after watching too much television. Stop watching the TV. Stop watching the news because it’s only going to make you guys paranoid over nothing,” “Stop being a hypochondriac, it’s not going to get you out of prison,” and “Lay down, take a Tylenol, there’s nothing we can do.”
10. Warden Easter and Associate Warden Comstock told us, in effect, we know it’s difficult for you guys to social distance, so just try your best to do what you can. That is the only instruction we have received on social distancing.
11. For the last couple of weeks, an associate warden has come through the unit daily to take prisoners’ temperatures. He approaches prisoners one at a time and aims a temperature
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wand at our foreheads. He stands so close to you that you could kiss him. When a prisoner’s temperature is taken, and there is no fever, he states the number loudly so that others are at ease. When a prisoner has a fever, he states the number softly so that only the prisoner can hear, if he states it at all.
12. Just because you have a fever doesn’t mean you are taken off the unit. In the beginning, there was such chaos that the staff couldn’t handle the influx and even if you had a fever, you stayed in the unit. Until recently, a prisoner with a low-grade fever of 100 or 101 degrees would be given Tylenol for 2 or 3 days to see if the Tylenol can break the fever.
13. For the last couple weeks, prisoners with a fever have been taken to medical. Sometimes, however, a prisoner has a fever and the associate warden attributes the temperature reading to equipment error. When the temperature wand comes up with a low-grade fever, the associate warden will “reset” it and pretend to take another reading. He will announce another number, but he won’t even aim the wand at the prisoner’s forehead. The associate warden does not show the prisoners the LCD screen on the wand that displays the temperature, so we have to go by whatever he tells us.
14. If the associate warden acknowledges that a prisoner has a temperature, then he will escort the prisoner to medical. Prisoners who have gone to medical have told me what happens there. At medical, the prisoner is given two or three Tylenol and told that the wand is not working properly and that they do not have a fever, and then sent right back to the unit. One of the prisoners who went to medical and came right back has been vomiting blood all week. When his temperature was taken in the unit, he was told that he has a 101.2 degree fever. When he got to medical, he was given Tylenol, told that his temperature is 98.7 degrees, and sent
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back to the unit. They never took his temperature in medical. When he got back to the unit and told us all this, his forehead was hot.
15. Although most of us are sick, only three prisoners with a fever have been taken out of the unit and quarantined. These prisoners were taken to A Unit, a cell-based isolation unit. Two of these three prisoners returned to our unit about 8-10 days after testing positive for COVID-19. One was taken out on March 27 and the other was taken out on March 29. I understand that when they were in the isolation unit, they were given two Tylenol per day. Otherwise, they did not receive any medical treatment. Shortly after they both returned to my unit on April 6, the unit became deathly sick. Prisoners were up in the middle of the night coughing and gasping for air. It was at its worst from approximately April 7 to April 12. The third prisoner remains in isolation.
16. The prison recently opened another isolation unit, K Unit, which was condemned last winter for asbestos. Even though the BOP was supposed to renovate this unit and remove the asbestos, and has not done so, the prison is justifying its use as a temporary.
17. The COVID-19 virus has decimated the medical department. I was told by the assistant health administrator, Mr. Dakote, and a physician assistant, Mr. Quest, that our regular physicians have been out for weeks. Sick call requests have been going unanswered for weeks. In the last month, I have made three requests regarding an abnormal tumor near my rectum, and was told “that’s not an emergency” even though there is dark black blood in my bowels on occasion. The tumor has grown in the past month, obstructing my bowels, and medical has still not evaluated me. If you don’t have a fever, you have no access to a physician.
18. All sick call triage for our unit is being handled by a social worker who has no formal medical training. The social worker, Ms. Adamson, has told us “you are all fucking
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children with nothing more than a flu so stop your shit you’re not going home early.” She has said, “if you did the crime stop crying and do the time.” She has said, “I don’t need medical training to tell you you’re not sick so go lay the fuck down.” Prisoners who present for sick call triage who do not have a fever are denied access to any further medical treatment. Sometimes Ms. Adamson brings along the dental hygienist from the facility to help with the triage.
19. Ms. Adamson is also the staff member handling all CARES Act and compassionate release requests.
20. Before the pandemic, we ate in the mess hall with several other units. From approximately March 29 until April 5, we ate in the mess hall with another unit. From approximately April 6 until April 10, our unit ate in the mess hall by itself. Since then, we have been eating all meals in our unit.
21. Food service is closed. The COs are preparing our food. Food is delivered on a bread rack and is placed in your unit directly on your chair or on your bed. We only have laundry once a week at the most, and only if there is hot water and a staff member available. As a result, we cannot clean the stains on our bedding and clothes from when staff drop the trays on our chairs and beds.
22. Our meals are smaller. The portions were cut in half and we are not meeting the nutritional guidance of 2,000 calories per day. Breakfast will be one sour milk with one small piece of half-cooked cake batter. Lunch will be some type of hot food with a green vegetable or half-cooked rice as filler. Lunch the other day was four ounces of some type of cream salad with green peas. For dinner we are given a hamburger bun and a piece of meat, or four ounces of tuna with one piece of bread.
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23. All special medical diets are suspended indefinitely. I was prescribed a special medical diet by Dr. Greene and Dr. Febregas-Schindler on January 21, which was updated and modified by Dr. Febregas-Schindler on March 11. I am on a special medical diet of no green vegetables or plants due to my allergy to chlorophyll, and no rice and beans due to my diverticulosis. Despite this I have been given food with greens, rice and beans. I informed Ms. Adamson about my special medical diet not being met, and she responded, “Mr. Cassidy, I have other more important things to address with this virus being widespread than worry about what you can or cannot eat.”
24. My chronic medical conditions have deteriorated as a result of not being given my special medical diet.
25. The prison closed and locked the law library indefinitely, and has suspended the administrative remedy process indefinitely. The staff has stated that they are short-handed to review, investigate and respond to every grievance under the state of emergency the facility is operating in. This resulted in me being unable to access administrative remedy and compassionate release procedures.
26. Legal mail is being delayed and at times not picked up due to staff shortages. According to the local post office this has been an ongoing issue with several bins being left behind by prison staff. I know this because we have a prisoner in my unit who gets mail from England, and he hasn’t been getting his magazines for the last month and a half. His family called the local postmaster in Danbury, and the postmaster informed his family that this has been an ongoing problem with Danbury for 37 years but that it has gotten worse in the last month and a half. The postmaster informed his family that prison staff leave behind a couple of bins, say
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they’re going to come back, and never come back, so they’re always a couple days behind on the bins.
27. Legal calls are being denied for open and pending cases that require access to attorneys. I filed a written request to call my attorney and was told that a compassionate release motion is not a legal matter that is recognized. The case manager informed me that in her view the matter did not meet the criteria she was told by the unit manger to be considered a legal matter. Legal requests from attorneys are going unanswered because, per the staff, they “don't have time to handle these nonsense calls with all they are dealing with all the futile compassionate release requests.”
28. Until approximately March 29, our unit took rec with the rest of the prison, and we had access to both an indoor rec area and the outside rec yard. After around April 6, we were no longer allowed to use the indoor rec area. Instead, we used the outside rec yard with two other units, E Unit and F Unit. That lasted for about a week. For the last two weeks, our unit has gone to the outside rec yard by ourselves. When we go out to the rec yard, prisoners move out at the same time, standing next to each other, through the same 4’ wide door. During rec, prisoners stand right next to each other. There is no social distancing.
29. We are experiencing serious staff shortages and they keep getting worse and worse. There are way fewer COs than normal. 95% of the time, there is no officer in the unit. Sometimes we only see staff on the unit during count. You see the same guys working 80-100 hour weeks. I estimate that there are only about 40 COs on the entire compound. The COs are being “augmented,” meaning that a random staff member from medical, education, etc. has to cover units when COs are short-handed.
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30. If there is a medical emergency, and we cannot find a CO, the prisoners respond and help the prisoner. When prisoners collapse, it is the other prisoners who carry the prisoner to his bed. In order to get a CO, we have to yell out the window hoping that somebody hears us. I have witnessed at least three prisoner medical emergencies that were addressed only by other prisoners.
31. Social distancing is impossible in here. All 66 prisoners in my unit sleep in the same room in bunk beds. When I am sleeping, I am within one foot of the prisoner sleeping above me, and only about three or four feet away from the four prisoners in the two bunks on either side of me. There are no barriers between the beds.
32. In my unit there are five toilets, one urinal, three showers, and six sinks, including five cold-water wash sinks and one hot-water slop sink for washing eating utensils. The slop sink is right next to the other sinks. The sinks are about four inches apart. Sometimes two people have to share the same sink. The showers are two feet across the hall from the toilets. The tiles in the showers are corroded and filthy with mold. There are holes in the rotted woods in the ceiling above the showers, exposing rusted pipes, and when the prisoners above us in Unit C use their showers, water leaks down on us.
33. There is one liquid soap dispenser that was just put up last week. When we run out of liquid soap, we have to wait a day or two for it to get refilled. There are no paper towels or hand towels. We use toilet paper to dry our hands. There is no communal bar soap in the bathroom. You have to buy your own bar of soap from commissary. Indigent prisoners do whatever they have to do to get themselves a bar of soap. The prison does not give out shampoo, toothpaste, or mouthwash to indigent prisoners, either. We are also not provided with any cleaning supplies.
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34. There are two television rooms in the unit. Each room is about 10’ by 12’ with two televisions. The rooms can hold about 20 people and there are typically about 15-20 people in each of them. There is no ventilation in the television rooms.
35. There is a small telephone room, approximately 3’ by 8’, containing two telephones. The telephones are about eight inches apart. Both telephones are almost always in use. When two prisoners are using the telephones, they have to stand within two feet of each other. Typically, there are two prisoners on the phones, and the rest wait in a line in the hallway, standing right next to each other, close enough to touch each other. Since they started giving us free calls two weeks ago, there is always a line to use the telephones. The telephones are not cleaned between use.
36. There is also a small computer room, approximately 8’ by 10’, containing three computers, an eating table, and an ice dispenser. The amount of mold that is built up in the ice dispenser is incredible. The computers are in constant use. There are no barriers between the computers. At any given time, there will be three people in the room using the computers, three people standing behind them in the room waiting to use the computers, and several more people lining up shoulder-to-shoulder outside the room, right next to each other. The computers are not cleaned between use.
37. The commissary is open, but they are out of 50% of the items and a lot of the items are past their due date. They bring the commissary into a hallway in a laundry bin, and then the entire unit stands in the hallway and we wait for our names to be called. The hallway is narrow and no more than 20 feet long. We stand right on top of each other. If you miss your name then you have to wait until the end of commissary, so everyone comes out into the hallway at the same time.
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38. Staff give out medication twice a day. They shout “medication” and stand outside the door. Prisoners form a pill line, standing right next to each other. If you don’t hear “medication” you don’t get your medication for the day, so everyone comes up at the same time and crowds each other.
39. On April 9, staff gave the prisoners in my unit one mask each. A week later, they gave us a second mask. We haven’t received a mask in the last week. These masks are thin, papery disposable hospital masks that you cannot clean. They fall apart if you wet them. There is one prisoner with chronic obstructive pulmonary disease (COPD) and a beard who does not wear a mask. He is not being made to wear a mask.
40. Staff have not provided us with gloves. Staff do not wear gloves regularly. 41. Staff wear masks in our unit. But we see them take them off when they leave the unit and put them back on when they come back into the unit. Staff will go into the A Unit or K Unit, the two units with people who are positive with the virus, and come back into our unit without changing their gloves, or they’ll take off their gloves outside the unit but won’t wash their hands and won’t change their masks. The entrances to A Unit and K unit are both on the first floor, so my whole unit can see staff going in and out of those units. 42. On March 13, I submitted a request to the Warden through Unit Manager Moore for compassionate release. Around March 20, I learned that that she had tested positive for COVID-19. She is still not back in the facility. On April 1, I asked for an administrative remedy and was told that the administrative remedy process was suspended. On April 24, I received a denial of my compassionate release request from the warden. 43. I have a secure and stable home environment that I can go to immediately if I am released. I would be confined to my family residence of the last 16 years in Brooklyn, New
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Case 3:20-cv-00569-MPS Document 111-4 Filed 06/16/20 Page 12 of 12 York with my brother, Donald Cassidy. I would stay at home and would not be out in the community. My brother Michael Cassidy and sister Dorothy Peters both will assist with any financials. I also have employment secured with Quick Call Medical Answering Service.
I have reviewed the information contained in this declaration with counsel by telephone and correspondence. I declare under the pains and penalties of perjury that the contents are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/s/ Kenneth Cassidy (by consent) Kenneth Cassidy April 26, 2020
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Case 3:20-cv-00569-MPS Document 111-5 Filed 06/16/20 Page 1 of 4
EXHIBIT E

Case 3:20-cv-00569-MPS Document 111-5 Filed 06/16/20 Page 2 of 4
Declaration of Christina Korbe
1. I am currently in custody at Danbury FCI in the low security satellite prison (“FSL”). My Bureau of Prisons (“BOP”) Register Number is 30233-068.
2. I have been incarcerated in the BOP for almost 12 years. My release date is set for May 18, 2022.
3. I am 51 years old. I have been diagnosed with degenerative disc disease and posttraumatic stress disorder.
4. In early April, I began experiencing symptoms consistent with COVID-19. My symptoms included a severe headache, body aches, fever, shortness of breath, and a terrible cough. I also lost my appetite and my sense of smell. The cough was the worst cough I have ever had. At one point, I coughed so hard that I was afraid I had fractured a rib.
5. I spoke to the medical department multiple times about my symptoms. When I coughed so hard that I feared I had fractured a rib, I submitted a request for an x-ray. In response, I was called to medical, but I was not given an x-ray. Medical told me that my vitals were good and that I was “healthy,” and that I probably just pulled a muscle rather than fractured a rib. I was given no treatment. I bought Tylenol from the commissary for my pain.
6. My symptoms lasted for approximately three weeks. Upon hearing how hard I was coughing, one of the psychologists commented that I should be tested because I could be infecting other people. I responded, “Could you please make that happen?”
7. I was never offered a test for COVID-19.
8. I was also never quarantined in response to my symptoms. Instead, I was kept in general population.
9. At the FSL, all of us live in one dormitory-style room, which is like a big “warehouse,” with about 160 to 170 inmates total. The dormitory is divided up into cubicles with two bunkbeds in each. The dormitory also contains our common area with televisions, hair care, laundry, phones, and computers, as well as our bathrooms and showers.
10. There are currently three people, including me, living in my cubicle. Many of the cubicles have four people. My cubicle is approximately 10 feet by 10 feet. Within the cubicle, the two bunkbeds are approximately 6 feet apart. Most of the cubicles are separated by a partition about an inch thick; however, some of the partitions do not reach
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all the way up to the top bunk, so in some cases, two people on top bunks in separate cubicles are sleeping right next to one another.
11. In the common area, there are 12 phones, but not all of them are working. There are 6 computers, but only 4 of them are working. These are shared among the 160 to 170 women who live here. The phones and computers are not being cleaned in between each use; rather, they are being cleaned at most three times per day, and sometimes less frequently.
12. There are 24 showers for all of us, but not all of them are working. The showers are cleaned once per day.
13. FSL has canceled all classes and programming, as well as indoor recreation, and we are being called to meals in waves. However, this has not made much of a difference in our daily contact with one another, because we are still living side by side in the crowded dormitories, and standing side by side in line for meals. We share countless items that we all touch many times per day, including, for example, the phones, computers, laundry, ice machine, door handles, and a hot water spigot that we use to make coffee and food.
14. Staff members here have been taking the inmates’ temperature every day. They go down our rows of cubicles to do this, but on quite a few occasions, I have noticed that everyone in the same row is told that they have the exact same temperature. Sometimes, I and other women have not gotten out of bed to have our temperature taken, and no one seems to notice or care.
15. Before April 24, 2020, I was aware of only four women in the FSL who had been tested for COVID-19, at least two of whom tested positive. But many more people were sick. I have personally observed many other prisoners with symptoms similar to mine. Many staff members have been absent. Although a few women were placed into quarantine, the majority of women with symptoms were not.
16. On April 24, 2020, a woman in the FSL became extremely sick. She was vomiting and struggling for air. Other inmates were around her, trying to help her, without wearing any gloves or masks. She was sick for hours, and throughout the night. We did not understand why staff did not take her to the hospital. In response to concern among the inmates, a correctional officer (a lieutenant) came into the dormitory and announced that anyone who used the phone to contact people on the outside about this incident would get a disciplinary violation. He said that he would be listening to our phone calls, and that we needed to “stay in our lane,” because we “are not doctors.” The woman who was sick was eventually taken to the hospital on April 25.
17. On April 25, many of the women who had been in contact with the woman who was taken to the hospital were tested for COVID-19. At least ten of them have tested positive,
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Case 3:20-cv-00569-MPS Document 111-5 Filed 06/16/20 Page 4 of 4 and all of them have been quarantined. That night, the women who were being placed in quarantine were allowed to come into the dormitory to get their personal belongings and take showers. 18. As of April 26, 2020, I still have a cough and a headache. I am terrified for my health and safety. 19. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/s/ Christina Korbe April 26, 2020
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EXHIBIT F

Case 3:20-cv-00569-MPS Document 111-6 Filed 06/16/20 Page 2 of 4
Declaration of Marius (Marie) Mason
1. I am currently in custody at Danbury FCI in the low security satellite prison (“FSL”). My Bureau of Prisons (“BOP”) Register Number is 04672-061.
2. I am 58 years old.
3. I am serving a sentence of 21 years and 10 months for conspiracy and arson. My release date is set for May 4, 2027.
4. On Tuesday I submitted a request to the Warden for compassionate release. I also asked to be considered for home confinement. I was approached by a staff member and informed that if I persisted in my request for compassionate release I might be moved to a medical facility. This would seem to me to confirm that I am in fact a candidate for compassionate release.
5. I have a history of breast and uterine cancer, as well as an enlarged heart, hypertension, and borderline diabetes.
6. At FSL it is not possible for me to maintain distance from other prisoners. I am housed in a large dormitory style room with approximately 168 other women.
7. The dormitory in which I am housed is divided into cubicles. Each cubicle holds two bunk beds, with up to four prisoners per cubicle. Each bunk bed is about two to four feet from the bed in the same cubicle. Each bed is about two to four inches from the bunk bed on the other side of the cubicle wall. The cubicle wall does not reach the top of the bunk beds, so a prisoner on the top bunk is right next to the prisoner on the top bunk on the other side of the cubicle wall.
8. All of the prisoners at FSL must share 6 or 7 working phones and 4 working computers. They are not cleaned between uses. The phones and computers are located close together in a common area.
9. Prisoners in my housing unit eat meals together in the unit. About 10-20 people are seated at each table. Five tables are filled at a time for meals.
10. All of the prisoners in the FSL use three bathrooms, which each include 5 toilets, 5 sinks, and 4 showers.
11. There are frequently issues with the water in the FSL, and water will be shut off for a few hours or more than a day at a time. In early April, the water was shut off for about seventeen hours. During this time no one was able to wash their hands or flush the toilet.

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12. Prisoners are not given hand sanitizer.
13. Prisoners were given paper masks a few weeks ago. Before then we were not given masks. In mid-April, we were given fabric masks.
14. Staff began wearing masks and gloves around mid-April. Before that time they weren’t wearing protective equipment.
15. Some staff have been out sick. More than one correctional officer tested positive for COVID-19, was out of work for a week, and then came back to work. One of our cooks is still out. Officers have returned to work after being unable to get their FMLA papers signed, but remain symptomatic. One officer stated that they still feel ill and do not want to be at work, but were told to return.
16. On March 30, 2020, inmates in FSL found out about the first COVID-19 case in our facility because it was reported on the news. A women from our facility was taken to the hospital and tested positive.
17. In total, I am aware of three people from FSL who have tested positive for COVID-19. One of those individuals couldn’t breathe and passed out. One had asthma. One had a persistent fever that wouldn’t go down. They were all taken to the hospital, where they were tested and found to be positive.
18. Those inmates that tested positive for COVID-19 have returned to the facility. One was away from the unit for about two weeks, and others were out for only about 7 days.
19. Inmates who are coughing, congested, or short of breath are not being tested for COVID19. They are not being separated from other inmates. I am not aware of any prisoner in the FSL being tested for COVID-19 except those who were tested at the hospital.
20. Staff are checking temperatures but inmates who have had high temperatures have not being separated from the rest of the population. Recently, however, nobody has had a normal temperature, because they take our temperatures with a remote scanner, a plastic wand with a digital readout. It does not touch on our body and people’s temperatures read artificially low: as low as 96, but often around 97.
21. Previously, they used an oral mercury thermometer. When a person’s temperature was elevated, staff would retake the temperature several times. A number of people had highly elevated temperatures, ranging from 103 and above. Staff told those individuals to drink cold water and then immediately retook their temperatures, at which point the temperature would appear to have dropped, although it was still above normal. Nothing was done after that as a result of the temperatures. Our temperatures were not and are not being recorded.

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22. While we are supposed to report symptoms, we are all aware that if we complain of symptoms we are unlikely to get effective treatment, and that we may be isolated away from our friends and our belongings, in cells that do not have ready bathroom access. Neither prisoners nor staff have any clear guidance on what to do to protect ourselves or what should be done if we are ill.
23. I have reviewed the information contained in this declaration by telephone with my lawyer, Moira Meltzer-Cohen. I declare under the penalty of perjury that the contents are true and correct to the best of my knowledge. I authorize my attorney to sign this declaration on my behalf.
_/S/_____________________________ Marius Mason April 23, 2020 I, Moira Meltzer-Cohen, certify that I have reviewed this declaration with Mr. Mason by telephone on April 23, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
Moira Meltzer-Cohen

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EXHIBIT G

Case 3:20-cv-00569-MPS Document 111-7 Filed 06/16/20 Page 2 of 3
Declaration of Kimberly Hoisington
1. I am currently in custody at Danbury FCI in the low security satellite prison (“FSL”). My Bureau of Prisons (“BOP”) Register Number is 11764-082.
2. I am serving a sentence of 85 months for conspiracy to distribute cocaine. My release date is set for November 1, 2021.
3. I am 61 years old. I have chronic asthma, which requires the use of two prescribed inhalers.
4. At FSL I am housed in a dormitory style room at with about 150 other prisoners. The room is divided into cubicles with two bunkbeds each. I am in a cubicle with three other prisoners. Our beds are at most four and a half feet apart, and the top bunks are closer together, at most two feet, to the top bunks on the other side of the cubicle wall.
5. On March 27th I was hospitalized with COVID-19. I had been feeling sick for a couple weeks before I went to the hospital. I had put in a request to see medical, and had been given two different “idles” to miss programs because I was sick.
6. On March 26th I reported to staff that I wasn’t feeling well, and asked to be excused from participating in programs that day. I went to the medical clinic, but after waiting there for 45 minutes without being seen, I returned to my bunk. A few hours later, I reported to staff on duty that I was feeling worse. I was told to lie back down.
7. By early in the morning of March 27th, around 1 or 2am, I had such bad chest pain that I could not sleep. I told the officer on duty, who called command center, and then called an ambulance.
8. Upon arrival at the hospital, my temperature was taken and registered at 102 degrees. My temperature had been taken at the facility within an hour earlier. I was told it had registered 97.
9. At the hospital I was tested for COVID-19 and tested positive. I believe I was released from the hospital on April 1st. It was a Wednesday. I was told that I would have to test negative twice before they would release me. I was tested most recently the Tuesday before I was released from the hospital. I got the results on Wednesday: I was positive for COVID-19. I was released that afternoon.
10. FSL has two isolation rooms. After I returned from the hospital, I was placed in one of the isolation rooms. Another prisoner who I was told had tested positive for COVID-19 was in the other isolation room. I remained in that room for 24 hours.

Case 3:20-cv-00569-MPS Document 111-7 Filed 06/16/20 Page 3 of 3
11. The isolation room was cold and small, with just enough room for my bed and a toilet. The bed had a one-inch thick mattress and no pillow. The toilet’s flush was controlled by the corrections officer from outside the room and was only flushed a few times a day.
12. After 24 hours, I was placed in the facility’s visiting room for five days. There were four of us in the visiting room. While we were there, we used the visiting room bathrooms. Each woman had her own toilet stall, but we shared the same shower, a temporary standup stall built in order for us to be able to bathe.
13. At one point when we were in the visiting room, one of the other women fell when she was in the bathroom and hit her head on the concrete floor. She was unconscious, and we tried to get help for her. There was no guard outside the door. We tried to yell for help, but nobody came. We went to the locked front door and started beating on the door and yelling to try to get someone’s attention. Someone who was in the parking lot heard us and told control. A Commander came into the visiting room and we told him what had happened and that the woman who fell needed medical attention.
14. I returned to the general population housing unit on April 7.
15. I have continued to feel unwell since I returned to the unit. On April 17th I felt weak, had a fever and terrible body pains, and was sweating and dry heaving. That weekend I continued to feel terribly sick. I had a stomach ache that lasted at least 8 hours, horrible body aches, and my eyes burned. I was scared. I notified correctional officers, and I was taken to the medical clinic. My temperature was taken and registered 98 degrees, but I believe this was incorrect. My oxygenation was 96 and my blood pressure was so high that the nurse took it three times. The nurse instructed me to take Tylenol and return to my room.
16. Another prisoner in the unit was very sick and was taken to the hospital last night. She couldn’t stop dry heaving for three or four hours before she was sent to the hospital.
17. Today maybe 40 people were taken from the unit into the Rec room. I was told they were being tested for COVID-19. Some people who had been in contact with the prisoner who went to the hospital were still in the unit and not among the people in the Rec room.
18. I have reviewed the information contained in this declaration by telephone. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/S/ Kimberly Hoisington
April 25, 2020

Case 3:20-cv-00569-MPS Document 111-8 Filed 06/16/20 Page 1 of 5
EXHIBIT H

Case 3:20-cv-00569-MPS Document 111-8 Filed 06/16/20 Page 2 of 5

Case 3:20-cv-00569-MPS Document 111-8 Filed 06/16/20 Page 3 of 5

Case 3:20-cv-00569-MPS Document 111-8 Filed 06/16/20 Page 4 of 5

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Case 3:20-cv-00569-MPS Document 111-9 Filed 06/16/20 Page 1 of 3
EXHIBIT I

Case 3:20-cv-00569-MPS Document 111-9 Filed 06/16/20 Page 2 of 3
Declaration of Tamika Somerville
1. I am currently in custody at Danbury FCI in the low security satellite prison (“FSL”). My Bureau of Prisons (“BOP”) Register Number is 33746-068.
2. I am 40 years old. I am 5’9” and I weigh approximately 220 pounds. I use the pronouns he/him.
3. I have asthma and hypertension.
4. I am serving a sentence of 15 years for possessing a firearm as a convicted felon. I was subject to a 15-year mandatory minimum based on having three prior drug convictions. My release date is set for March 20, 2025.
5. In early April I submitted a request to the Warden for compassionate release, and I submitted through my Federal Public Defender a request for home confinement.
6. At FSL it is not possible for me to social distance. I can try to keep to myself, but I am housed in a dorm style unit with 198 beds. The unit is divided into cubes like office cubicles with four people to a cube. The walls of the cubicles are about 4-5 feet high and do not reach the ceiling. The beds are not six feet apart.
7. Our unit has 3 bathrooms for all of the prisoners in our dormitory. Each bathroom has 6-8 toilet stalls and 6-8 showers. Not all of the showers are functional.
8. Meals are brought to all the prisoners in the unit at the same time; meal times are not staggered. They are brought on Styrofoam trays. There are not enough places for everyone to sit to eat.
9. The counselor’s office has hand sanitizer that I can use when I make a legal call. Hand sanitizer is not available in the units.
10. The prisoners have one fabric washable mask each. There are washing machines available to us to clean the masks. We do not have another mask to wear while our mask is being cleaned.
11. A woman in my unit was removed for fever. She reported that she tested positive for COVID-19 on a Tuesday. She was returned to our unit that same Friday. She sleeps in a cubicle that touches mine on the top bunk. I sleep on the bottom bunk. After she returned from the hospital, I slept with my head away from the wall to try to protect myself.

Case 3:20-cv-00569-MPS Document 111-9 Filed 06/16/20 Page 3 of 3
12. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
I, Renee Pietropaolo, Assistant Federal Public Defender, certify that I reviewed the information in this declaration with Mr. Somerville by telephone on April 23, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
s/ Renee Pietropaolo Renee Pietropaolo Assistant Federal Public Defender Western District of Pennsylvania April 27, 2020

Case 3:20-cv-00569-MPS Document 111-10 Filed 06/16/20 Page 1 of 4
EXHIBIT J

Case 3:20-cv-00569-MPS Document 111-10 Filed 06/16/20 Page 2 of 4
Declaration of Theresa Foreman
1. I am currently in custody at Danbury FCI in the minimum-security women’s satellite camp (“Camp”). My Bureau of Prisons (“BOP”) Register Number is 26224-014.
2. I am 58 years old and African American. I am 5 feet 7 inches tall and I weigh approximately 240 pounds.
3. I have a medical history of hypertension, for which I am currently taking Hydrochlorothiazide and Aspirin.
4. I am serving a sentence of imprisonment of a year and a day for tax evasion—my first and only criminal conviction—and the BOP calculates my release date to be January 4, 2021, but I have been advised that I may be eligible for release to home confinement on November 30, 2020.
5. I self-surrendered to FCI Danbury on February 28, 2020.
6. On April 17, 2020, I submitted a request by U.S. Mail to Warden Easter for compassionate release, or, in the alternative, immediate transfer to home confinement. As of today, I have not received a response.
7. At the Camp, it is not possible for me to maintain physical distance from other women. I can try to keep to myself, but I am housed in a dorm style unit with about 47 other women. We sleep in a common space that is divided into open cubicles, each with a bunk bed that sleeps two women. The walls of the cubicles are about 4-5 feet high and do not reach the ceiling. The bunk beds are close enough that if I reached out my hand, I could touch the hand of the person in the bed next to me.
8. Camp prisoners are responsible for cleaning our own cubicles. Our shared living spaces in our dorm are not regularly disinfected.
9. Our unit has 5 toilets, 6 sinks and 6 showers that are currently shared by approximately 48 women. Our common toilets, sinks, and showers are not regularly cleaned or disinfected.
10. There are four dorms at Camp: A, B, C, and D. I am in Dorm B. Currently, I believe that the A, B and C dorms each house approximately 47-50 people. I believe that the D dorm houses 12 people.
11. Staff move throughout the day between all four of the dorms, including for count, food delivery, and commissary. Staff also rotate between the men’s prison, the FSL, and Camp, interacting with prisoners at each location.

Case 3:20-cv-00569-MPS Document 111-10 Filed 06/16/20 Page 3 of 4
12. Among other duties, staff serve us our meals in our cubicles three times per day.
13. Several staff members that typically have shifts at the Camp have been out sick. Two staff members in particular have been out for several weeks, and their offices, which are usually cleaned by inmates, have been thoroughly disinfected, floors mopped, and furniture cleaned—I haven’t seen this type of cleaning before, and it goes far beyond the sanitation and cleaning practices throughout the rest of the Camp facility.
14. Cleaning throughout the rest of the Camp has been sporadic lately, as some prisoners have quit their jobs and some are quarantined in different dorms from their assigned cleaning areas. We do not have adequate cleaning supplies. I am not aware of any part of the Camp being sanitized or disinfected other than the two staff offices.
15. The Camp contains one common area with telephones, computers, and “video-visiting” machines. These items are shared by women housed in all four dorms; for the entire Camp, there are a total of 4 phones, 7 computers, and 3 video machines currently operational. The common area also includes hot water taps and sinks for dishwashing. The phones, computers, and video machines are clustered close together in the shared common space. They are not cleaned or disinfected between uses. There is cleaning solution available in the phone area, but not in the computer room. When we have access to the common area to make phone calls or use the computers, we often have to wait in line because they are in high demand. While we wait, we are not able to social distance from each other.
16. Prisoners have been given 2 surgical masks and 3 material masks in the last two weeks. We have not been given gloves.
17. Since April 15, the Camp has been on lockdown. Under this lockdown, the women in each dorm are let out of the dorm for one hour a day at different times of day. This is our only time for recreation and access to the common area. During the time we are confined to our dorm, we are instructed to remain in our cubicles. Since the walls between the cubicles are only 4 to 5 feet tall, we are still able to speak to other prisoners in our dorm over the wall.
18. There are a limited number of prisoners doing jobs, and those prisoners continue to move around the facility and between the dorms. Three times a week, my entire unit (all 48 of us) will move through the facility to the laundry room and deliver our laundry to prisoners who will do the laundry. We wait in line to drop it off, and we are not able to social distance while we wait in line.
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Case 3:20-cv-00569-MPS Document 111-10 Filed 06/16/20 Page 4 of 4
19. On April 16, the Assistant Warden visited the Camp and was asked if we would be informed if we were exposed to COVID-19. She said that we would not be told if we were exposed.
20. Every day, the lieutenant comes by and takes our temperature using a sensor thermometer, but since staff tries to get it as close to our heads as possible, it sometimes touches our head. The same thermometer is used for each inmate, and I do not see it being disinfected between uses. There is no screening for other symptoms such as coughing.
21. Although some women at the Camp have been told that they are on a “list” for home confinement, these women have not been released. I only know of two releases resulting from COVID-19 from Camp: a pregnant woman and a woman with Parkinson’s disease.
22. I have not been told that I am on the list for home confinement. 23. I declare under the penalty of perjury that the contents of this declaration are true and
correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
___/s/___________________________ Theresa Foreman April 26, 2020
3

Case 3:20-cv-00569-MPS Document 111-11 Filed 06/16/20 Page 1 of 3
EXHIBIT K

Case 3:20-cv-00569-MPS Document 111-11 Filed 06/16/20 Page 2 of 3
Declaration of Antrum Coston
I, Antrum Coston, am over the age of 18 and fully competent to make the following declaration:
1. I was incarcerated at FCI Danbury from April 2019 until April 17, 2020, when the Court granted my motion to reduce my sentence. I served a little more than two years for federal drug and gun convictions. My BOP Register Number was 15278-014.
2. I was housed in H Unit, a congested, second-floor dorm-style unit which houses about 75 prisoners.
3. All prisoners in H Unit sleep in bunk-beds in the same room. The bunk-beds are in rows, both side-by-side and front-to-back. Side-by-side, there is a distance of approximately 3’ between beds. I could stretch out my arms and touch the bunk next to me. Front-to-back, there is a distance of approximately 6’ between beds.
4. All 75 men in the unit share the same bathroom, which has one urinal, four or five toilets, five or six sinks, and a shower area with four showers. The unit also has two television rooms, a computer room with three computers, and a telephone room with two telephones. The television rooms can accommodate approximately 20 prisoners and it is not unusual for 15 or more prisoners to be in the same television room at the same time. The two phones in the telephone room are next to each other and if two prisoners are using the phones they have to stand right next to each other.
5. Most units in FCI Danbury are dorm-style. There are three cell units. One of the cell units is for the drug program, one is for mainly ex-military prisoners, and one (A Unit) was recently emptied and converted into a quarantine unit. Each cell has a bunk-bed for two prisoners, a sink and a toilet.
6. In February, many prisoners in my unit got very sick. Staff explained the outbreak as chicken pox, pneumonia, or shingles. The prison temporarily closed the gym in response to the outbreak. The gym was reopened in March. When the gym reopened, it was packed because prisoners had gone so long without working out.
7. In the beginning of March, prison staff took away prisoners’ spray bottles, which until then had been allowed. We were told that we could get spray bottles from a CO, but the CO was never on the block. In early April, we got our spray bottles back.
8. In mid-March, the prison cancelled all visits and split the jail in half. Although before then the entire prison would have rec at the same time, after mid-March half the prison would have rec at one time, and the other half would have rec at a different time.
9. Before mid-March the entire prison would eat around the same time, on staggered shifts. There would be about four units in the chow hall at any given time. After mid-March, only one unit would go to the chow hall at a time.
1

Case 3:20-cv-00569-MPS Document 111-11 Filed 06/16/20 Page 3 of 3
10. In early April, the prison closed the gym and the law library and my unit was locked down. It was still locked down when I was released. My unit was allowed out of the dorm for one hour per day for rec. Some time after that, my unit started going to rec by itself, with no other units. People did not observe social distancing in the rec yard.
11. In early April, prison staff started allowing prisoners to wear mask. They did this because we were making our own masks. In the two weeks before I was released, the prison staff started providing prisoners with masks.
12. In mid-April, my unit stopped going to the chow hall entirely. All meals were brought to the unit. The prison switched from hot meals to bagged meals.
13. On approximately April 13, the prison started mandatory temperature-taking for prisoners. Before then, prison staff would come through the dorm and asked if anyone wanted to get their temperature checked. Having a high temperature would not necessarily result in any further action being taken. There were prisoners with 103-degree temperatures who were not taken out of the unit. Generally, if prisoners in the unit get sick, they just get sick. A couple extremely sick prisoners were taken out of the unit and transferred to A Unit. But you had to be falling down to get any help.
14. Medical has been no help. Before the crisis, prisoners could go to sick call in the morning, fill out a slip, and, depending on the severity of their condition, could expect to see a doctor a day or two later. For the last month, prisoners have been filling out slips but have not been hearing back from medical or getting appointments. I put in a slip approximately one month before I was released, and never heard back from medical.
15. The prison put up a few signs reminding people to wash their hands. They did not create any hand-washing stations or provide any prisoners with hand sanitizer or soap. There is no hand sanitizer available in the commissary. They used to have it, but they weren’t selling it to us for the last two months.
16. When I was released on April 17, there was no social distancing at the prison. Prisoners frequently stood directly next to each other when waiting in crowded, congested lines, including to receive medications, to use the commissary, and to get meals. At this time, some guards wore masks and some guards did not.
I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge.
/s/ Antrum Coston (by consent) Antrum Coston
April 26, 2020
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Case 3:20-cv-00569-MPS Document 111-12 Filed 06/16/20 Page 1 of 2
EXHIBIT L

Case 3:20-cv-00569-MPS Document 111-12 Filed 06/16/20 Page 2 of 2
Declaration of Shannon Benson
1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register Number is 43247-061.
2. I am a 39 year old man. I suffer from Graves’ disease and Hashimoto's disease.
3. I am in G Unit at FCI Danbury. The unit is full of bunk beds. Each bed is about 3 feet away from the next bed. All the men in the unit share a bathroom that has one urinal and 5 individual stalls. We all share 2 phones and 3 computers.
4. Last week, a man passed away from COVID-19 who had been housed in my unit.
5. People with symptoms including coughing, chest restriction, headaches, and loss of taste and smell are not being taken up to medical or tested for the virus. You have to have a high temperature to be seen by medical. There are people in my unit right now who have serious symptoms and haven’t been seen by medical or removed from the unit.
6. I experienced loss of taste and smell, and had profuse cold sweats. I had headaches for 4 to 5 days. I was not tested for the virus. I was told that if you didn’t have an elevated temperature then it may have been a common cold or flu I was experiencing.
7. Around March 13, 2020, I was scheduled to go to a specialist due to my T4 levels being elevated to the point of danger. Due to COVID-19, I was unable to be seen by the specialist. I did not receive any blood work here at the institution until April 24 to see if in fact my thyroid condition had leveled out. I am concerned my medication is not performing correctly because of my elevated levels.
8. They didn’t start passing out masks or install a soap dispenser until about 2 weeks ago. We only recently got regular access to cleaning supplies. Our shower area is heavily coated with fungus and mildew, there are several significant leaks. FCI Danbury has had a history of asbestos.
9. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
______/s/_________________ Shannon Benson
April 26, 2020
1

Case 3:20-cv-00569-MPS Document 111-13 Filed 06/16/20 Page 1 of 2
EXHIBIT M

Case 3:20-cv-00569-MPS Document 111-13 Filed 06/16/20 Page 2 of 2
Declaration of Richard Johnson 1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register
Number is 44910-054.
2. I am a 65 year old man.
3. I am serving a 48-month sentence. My release date is October 14, 2021.
4. My understanding is that I was the first person placed in isolation at FCI Danbury for the COVID-19 virus.
5. Before I got sick, I was housed in the M Unit. I began feeling symptoms but wasn’t able to be seen by medical for about two days. On March 27, 2020, I pushed my way to medical and demanded to be seen.
6. When I was seen at medical, they had just received 22 COVID-19 tests and I was immediately given one.
7. I was then locked up in an observation cell. There were long periods of time that no one came to see me. I even missed meals.
8. I was later moved to a celled unit. For a period of 6 days, I was not given a shower or my medications. I was also not allowed to communicate with my family during that period of time.
9. After 12 days of isolation, I was released from quarantine back to the M Unit. When I returned to my unit, many men were ill.
10. I am still experiencing residual effects of the virus including swollen knees and joint pain. I am also now on medication for high blood pressure (which I wasn’t on before) and I use a respirator pump.
11. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
______/s/________________________ Richard Johnson April 26, 2020
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Case 3:20-cv-00569-MPS Document 111-14 Filed 06/16/20 Page 1 of 2
EXHIBIT N

Case 3:20-cv-00569-MPS Document 111-14 Filed 06/16/20 Page 2 of 2
Declaration of Ronald Harper 1. I am currently incarcerated at FCI Danbury. My Bureau of Prisons (“BOP”) Register
Number is 05758-055. 2. I am a 54 year old man. My release date is January 28, 2021. 3. I suffer from diabetes, asthma, kidney disease, high blood pressure, high cholesterol, and
COPD (chronic obstructive pulmonary disease). 4. I am in H Unit at FCI Danbury. There are about 70 inmates housed here. The unit is dorm
style with bunk beds. All the men share a bathroom. There are four toilets and two urinals. There are six sinks and four showers. It is not enough for the number of inmates in the unit. We also share phones and computers. 5. I had a sore throat and a cough a few weeks ago. I talked to medical staff and they told me to buy some cough syrup from the commissary. I was not tested for COVID-19 and they kept me in the unit 6. When an inmate has symptoms of the virus they were leaving them in the unit. Now they are taking some to another unit. But there are still inmates with symptoms of the virus in the unit. 7. I feel very vulnerable here. There is no space for social distances. Medical staff are not checking on the inmates like they should. 8. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
____/s/__________________________ Ronald Harper April 26, 2020
1

 
 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED,

:

individually, and on behalf of all others

:

similarly situated,

:

:

Petitioner,

:

:

v.

:

:

:

D. EASTER, Warden of Federal Correctional :

Institution at Danbury, in her official capacity :

:

Respondent.

:

Case No. 3:20-cv-569 (MPS)

SETTLEMENT AGREEMENT

This Settlement Agreement (the “Agreement”) is made and entered into effective July 27,

2020 (the “Effective Date”) by Petitioner James Whitted, individually and on behalf of the

members of the proposed class defined herein in Section 1 (the “Medically Vulnerable Class”),

on the one hand, and the Respondent, Diane Easter, in her official capacity as the Warden

(“Respondent” or the “Warden”) of the Federal Correctional Institution located in Danbury,

Connecticut (“FCI Danbury”) and the Bureau of Prisons (the “BOP”), on the other hand.

RECITALS

Whereas, on April 27, 2020, several FCI Danbury inmates, subsequently joined by

Petitioner, brought this action (the “Action”) alleging the Respondent was violating the Eighth

Amendment rights of FCI Danbury prisoners by (i) failing to make full use of her home

confinement and compassionate release authority, and (ii) failing to implement adequate

measures to prevent the continued spread of COVID-19 at FCI Danbury;

Whereas Respondent denies and vigorously disputes that any FCI Danbury inmate at

issue in the present litigation has been treated with deliberate indifference;

Whereas, on May 12, 2020, United States District Judge Michael P. Shea entered a
Temporary Restraining Order in this Action (the “May 12, 2020 TRO” (ECF 30)) provisionally
certifying a putative subclass of medically vulnerable to COVID-19 FCI Danbury inmates and
setting forth standards for determining their suitability for home confinement release.1
Whereas, on May 15, 2020, Respondent filed an initial list identifying 314 inmates who
are potential members of the Medically Vulnerable Class (the “Medically Vulnerable Class List
One Inmates” or “List One Inmates”). Respondent identified the 314 List One Inmates by
searching the BOP’s record systems using a list of ICD-9 and ICD-10 codes identified by
Petitioner’s counsel as representing conditions specifically identified by the CDC as putting a
person at higher risk for severe illness from COVID-19;
Whereas Respondent ran a second search of BOP’s record systems, again using a list of
ICD-9 and ICD-10 codes identified by Petitioner’s counsel as representing conditions
specifically identified by the CDC as putting a person at higher risk for severe illness from
COVID-19, which resulted in a list of 111 additional inmates who are also potential members of
the Medically Vulnerable Class; and subsequently, at Petitioner’s counsel’s request, Respondent
agreed to add an additional 14 inmates to be included into the second list of inmates who are
1 In the May 12, 2020 TRO, the medically vulnerable subclass was defined as: “All individuals in custody at FCI Danbury, while the threat of COVID-19 at the facility remains, who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or (h) serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.” ECF 30 at pp. 65-66 n.32; see also ECF No. 26 at p. 2.
2

potential members of the Medically Vulnerable Class (collectively, these 125 inmates are the “Medically Vulnerable Class List Two Inmates” or “List Two Inmates”);
Whereas attached as Exhibit A is a list setting out the List One Inmates and the List Two Inmates, respectively;
Whereas the parties recognize that there may be certain inmates, including future inmates, who are not List One Inmates or List Two Inmates but who nevertheless may already be or may in the future become members of the Medically Vulnerable Class (“Non-List Medically Vulnerable Class Inmates” or “Non-List Inmates”);
Whereas the BOP has statutory authority to transfer prisoners to home confinement under 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541;
Whereas, on March 26, 2020, Attorney General William Barr issued a memorandum that directed the BOP to “prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” and provided a non-exhaustive list of discretionary factors for evaluating inmates for home confinement;
Whereas, on March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which authorized the Director of the BOP to lengthen the amount of time prisoners can be placed on home confinement under Section 3624(c)(2)— previously capped at the shorter of 10% of their sentence or 6 months—provided that the Attorney General makes a finding that “emergency conditions will materially affect the functioning of the Bureau”;
Whereas, on April 3, 2020, Attorney General Barr issued a memorandum in which he found that “emergency conditions are materially affecting the functioning of the Bureau” and
3

directed the Bureau to “move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions” while cautioning that the BOP must continue to make “individualized [home confinement] determinations”;
Whereas the BOP has established a multidisciplinary committee within its Central Office in Washington, D.C. (the “Home Confinement Committee” or “HCC”) to make home confinement review determinations for inmates who are not eligible for home confinement under BOP’s current guidance but nevertheless could possibly be determined suitable for home confinement as an exception case;
Whereas the parties now desire to resolve the present litigation on the mutually acceptable terms set forth below, which they agree are a fair, reasonable and adequate resolution of this case;
NOW, THEREFORE, in consideration of the promises set forth herein, the parties agree and covenant as follows:
SETTLEMENT TERMS Settlement Class 1. This Settlement Agreement is entered into on behalf of all members of the Medically Vulnerable Class, consisting of any person incarcerated at FCI Danbury anytime from the Effective Date until the termination date of this Agreement, October 31, 2021, unless otherwise modified by the parties pursuant to the terms of this Agreement, who either: (a) is a List One Inmate or List Two Inmate, or (b) possesses one or more underlying medical conditions which, according to current CDC guidance (i.e., the CDC guidance in effect at the time of the individual’s home confinement review), either (i) places that inmate at increased risk of severe illness from COVID-19 (“Tier 1 medical conditions”); or (ii) might place that inmate at an
4

increased risk of severe illness from COVID-19 (“Tier 2 medical conditions”). List One and List Two Inmate Home Confinement Reviews 2. Respondent has already reviewed all List One Inmates for home confinement at
the institutional level and Respondent asserts that it has conducted these reviews pursuant to Attorney General Barr’s March 26 and April 3, 2020 memoranda, the current BOP guidance at the time of each review, and the standards set forth in the May 12, 2020 TRO (see ECF 30). The Respondent has already referred to the Home Confinement Committee all List One Inmates who were not eligible for home confinement under the current BOP guidance at the time of each review but whom the Respondent nevertheless believed could even possibly be eligible for home confinement as an exception case based upon the standards set forth in the May 12, 2020 TRO (see ECF 30). BOP asserts that the Home Confinement Committee has already made home confinement determinations based upon the standards set forth in the May 12, 2020 TRO (see ECF 30) for all List One Inmates referred to it. The parties agree that Section 13 of this Agreement, infra, resolves any disputes or disagreements the parties may have, or have ever had, with respect to the adequacy of the home confinement reviews performed under this Section.
3. To the extent she has not already done so, the Respondent agrees to have all List Two Inmates reviewed for home confinement at the institutional level pursuant to Attorney General Barr’s March 26 and April 3, 2020 memoranda, the current BOP guidance at the time of each review, and the standards set forth in the May 12, 2020 TRO (see ECF 30). To the extent that the standards set forth in the May 12, 2020 TRO differ from Attorney General Barr’s March 26 and April 3, 2020 memoranda or the current BOP guidance at the time of each review, the provisions of the May 12, 2020 TRO shall control. Petitioner acknowledges that Respondent, at the institutional level, may not be authorized to apply provisions of the May 12, 2020 TRO that
5

conflict with current BOP guidance. Respondent agrees to refer all List Two Inmates who are not approved for home confinement at the institutional level to the Home Confinement Committee. BOP agrees to have the Home Confinement Committee make a home confinement determination for all such inmates based upon the standards set forth in the May 12, 2020 TRO (see ECF 30).
Identification of Medically Vulnerable Non-List Inmates 4. The parties agree that Non-List Inmates can become recognized as members of the Medically Vulnerable Class, but only through the following process:
a. Petitioner’s counsel may propose any Non-List Inmate to become a recognized member of the Medically Vulnerable Class, but only upon a good faith belief, substantiated by documentary evidence, that such individual falls within the definition of the Medically Vulnerable Class.
b. Respondent and BOP agree to recognize as a member of the Medically Vulnerable Class any inmate proposed under Section 4(a), unless within 7 days of such proposal the Respondent or BOP disagrees that the proposed inmate is a member of the Medically Vulnerable Class.
c. Any disagreements between counsel for Petitioner and Respondent or BOP over whether a particular Non-List Inmate is a recognized member of the Medically Vulnerable Class shall be finally resolved by a physician detailed to the BOP from the United States Public Health Service, Department of Health and Human Services, (the “PHS Physician”) within 7 days of such dispute being referred to him or her.
d. Neither Respondent nor BOP nor the PHS Physician will consider whether an
6

inmate has previously tested positive for COVID-19 in making a determination about whether such individuals falls within the definition of the Medically Vulnerable Class for purposes of this Section. e. Determinations about whether any Non-List Inmate is a recognized member of the Medically Vulnerable Class will be based solely on BOP records, unless (1) the inmate at issue has been in BOP custody for less than the two consecutive years preceding the date of the inmate’s proposal under Section 4(a), or (2) Petitioner’s counsel makes a good faith representation that extraordinary and compelling circumstances show the Non-List Inmate has a COVID-19 risk factor(s) which warrant consideration of such outside medical records. In either such instance, the inmate may submit outside medical records to be included in the inmate’s BOP records, which—once submitted and made part of the inmate’s BOP records—will collectively be reviewed in determining whether an inmate is a member of the Medically Vulnerable Class. 5. To help facilitate the identification of medically vulnerable Non-List Inmates, the parties agree to abide by the following timeline: a. Within 1 day of the Effective Date, Petitioner’s counsel agrees to provide Respondent medical release forms for certain inmates currently housed at FCI Danbury. b. Within 7 days of the Effective Date, Respondent or BOP will begin producing to Petitioner’s counsel the past two years of medical records for each inmate on behalf of whom Petitioner’s counsel submits a medical release form pursuant to Section 5(a). Respondent or BOP will finish producing all such records within 14
7

days of the Effective Date. c. Respondent will continue to undertake efforts to identify medically vulnerable to
COVID-19 inmates who have arrived or will arrive at FCI Danbury after June 3, 2020 pursuant to Attorney General Barr’s March 26 and April 3, 2020 memoranda. Respondent will ensure that each inmate admitted to FCI Danbury after June 3, 2020 receives a copy of the attached notice and authorization to release medical records form, attached as Exhibit C to this Agreement (the “Authorization Form”). For those inmates admitted after the Effective Date of this Agreement, Respondent will provide each such inmate a copy of the Authorization Form at the time of their admission. Inmates will be responsible for submitting signed Authorization Forms to Respondent. Within 7 days of Respondent’s receipt of a signed Authorization Form, Respondent will provide a copy of the signed form and the inmate’s past two years of BOP medical records to Petitioner’s counsel. Medically Vulnerable Non-List Inmate Home Confinement Reviews 6. Respondent agrees to have all Non-List Inmates who are recognized as members of the Medically Vulnerable Class pursuant to the process set forth in Section 4 of this Agreement reviewed for home confinement at the institutional level pursuant to Attorney General Barr’s March 26 and April 3, 2020 memoranda, the current BOP guidance at the time of each review, and the standards set forth in the May 12, 2020 TRO (see ECF 30). To the extent that the provisions set forth in the March 12, 2020 TRO differ from Attorney General Barr’s March 26 and April 3, 2020 memoranda or the current BOP guidance at the time of each review, the provisions of the May 12, 2020 TRO shall control. Petitioner acknowledges that
8

Respondent, at the institutional level, may not be authorized to apply provisions of the May 12, 2020 TRO that conflict with current BOP guidance. Respondent agrees to refer all such inmates who are not approved for home confinement at the institutional level to the Home Confinement Committee. BOP agrees to have the Home Confinement Committee make a home confinement determination for all such inmates based upon the standards set forth in the May 12, 2020 TRO (see ECF 30). After the List Two Inmates are reviewed for home confinement, with respect to anyone else subsequently recognized as a Medically Vulnerable Class member under Section 4 of this Agreement, Respondent and BOP shall complete their home confinement review within a reasonable time from recognition and shall endeavor to do so within fourteen days.
Principles Governing Home Confinement Assessments 7. For each inmate reviewed for home confinement pursuant to Section(s) 3, 6, 13, and/or 14 of this Agreement, a medical clinician employed or appointed by Respondent or BOP will verify that all Tier 1 medical conditions and Tier 2 medical conditions that each such inmate has, based on qualifying medical records as set forth in Section 4(e) herein, are identified and listed for consideration at both the institutional and Home Confinement Committee levels of review. 8. In making home confinement determinations under this Agreement pursuant to the May 12, 2020 TRO, including in particular the May 12, 2020 TRO’s mandate to “assign substantial weight … to the inmate’s risk factors for COVID-19 based on CDC guidance,” Respondent and the BOP agree not to utilize the “high-average-no” risk methodology employed in ECF 92, or consider the fact that any particular inmate may have previously tested positive for COVID-19. 9. BOP’s National Health Technology Administrator—or a substitute medical
9

clinician in the event the National Health Technology Administrator is unavailable—will remain a member of the Home Confinement Committee to assist the Committee’s home confinement reviews.
10. The Respondent will create Review Worksheets for each person being reviewed that include: (i) a list of the person’s CDC tier one and tier two COVID-19 risk factors; (ii) the person’s age; (iii) the offense/s of conviction; (iv) the person’s projected release date (PRD); (v) the percentage of statutory time served; (vi) a list of pending charges or detainers, if applicable; (vii) the person’s security level; (vii) the person’s PATTERN risk level; (viii) if the release plan has been deemed unsuitable, the reasons for that conclusion; and (ix) the person’s DST, if he or she has one. The Home Confinement Committee will also use these Review Worksheets in making home confinement determinations. Respondent agrees that if she determines that a Medically Vulnerable Class member is not eligible for home confinement, she will comply with the May 12, 2020 TRO and provide a written explanation of the factual basis for any factors relied upon for the denial.
11. The BOP agrees that if the Home Confinement Committee denies home confinement to a Medically Vulnerable Class member, it will comply with the May 12, 2020 TRO regarding a written explanation of the factual basis for any factors relied upon for the denial. Respondent and BOP agree to provide Petitioner’s counsel copies of the documents generated in the process of conducting home confinement reviews under this Agreement, including the Review Worksheets, the PATTERN Worksheets (i.e., worksheets containing the PATTERN score calculations) and the reason for denial (if the person is denied). The parties agree that the form of the documents produced under this Section will be consistent with the worksheets that have been disclosed in this litigation (see, e.g., ECF 59). BOP will endeavor to
10

release individuals approved for home confinement to home confinement within 14 days of the approval decision unless public safety or the absence of any home in which to place the inmate would make it unsafe to move the inmate to home confinement within that 14 day period.
Home Confinement Reconsiderations 12. Petitioner’s counsel may, based on a good faith belief, submit to Respondent and BOP for the Home Confinement Committee’s reconsideration any inmate who was denied home confinement but whose Review Worksheets or PATTERN Worksheets produced to Petitioner’s counsel under Section 11 contain an error or mistake of fact, including but not limited to a mistake in the description of an inmate’s PATTERN score or percentage of time served, or if the incorrect underlying medical condition(s) is listed on the worksheets for a particular inmate. Respondent and BOP may refuse to submit for reconsideration any such inmate to the extent they disagree on a good faith basis with Petitioner’s counsel’s determination that an error or mistake of fact exists or that the error or mistake of fact is material, in which case the parties’ dispute will be subject to the Dispute Resolution Procedures in Section 23. 13. Respondent and BOP agree to submit the 54 List One Inmates set out in the list attached to this Agreement as Exhibit B (“Exhibit B Inmates”) to the Home Confinement Committee for it to reconsider their denials of home confinement. The Home Confinement Committee’s re-review for home confinement of the Exhibit B Inmates will comply with Sections 7 through 11 of this Agreement, and is subject to enforcement under this Agreement. 14. The BOP agrees that, if an inmate’s lack of a release plan is, or is among, the reason(s) for denial of home confinement, and a suitable release plan is subsequently presented, each such inmate will have the right to apply, on their own initiative, for a home confinement rereview. Such inmates shall be re-reviewed first by the institution, and, if denied again by the institution, then by the Home Confinement Committee. Where a pending charge, detainer, or
11

warrant is, or is among, the reason(s) for denial of home confinement, and that pending charge, detainer, or warrant has been resolved, each such inmate will have the right to apply, on their own initiative, for a home confinement review. Such inmates shall be re-reviewed first by the institution, and, if denied again by the institution, then by the Home Confinement Committee. All such home confinement re-reviews under this Section will comply with Sections 7 through 11 of this Agreement, and are subject to enforcement under this Agreement. This Section applies to all List Two Inmates and Non-List Inmates, as well as to List One Inmates previously denied home confinement by the Home Confinement Committee.
Resolution and Release of Claims 15. The parties agree that this Agreement resolves all claims in the above-captioned case. 16. The named Petitioner and all members of the Medically Vulnerable Class, as defined in Section 1, individually and behalf of all their respective heirs, beneficiaries, successors and assigns, in consideration of the benefits of this Agreement, release and forever discharge the Respondent and BOP, and all their respective present and former officers, employees, agents, heirs, successors and assigns, from all actions, causes of action, suits, claims, or controversies, for any and all forms of non-monetary relief arising from or based on either: (i) any denial of home confinement or exercise of the BOP’s statutory authority to transfer prisoners to home confinement which may be brought during the time this Agreement is in effect, except as otherwise provided under this Agreement, or (ii) any acts or omissions alleged or that could have been alleged in the Action relating to the COVID-19 pandemic occurring prior to the Effective Date. For the avoidance of doubt, this release applies to any and all Medically Vulnerable Class members’ habeas corpus cases pursuant to 28 U.S.C. § 2241 seeking any relief
12

due to the COVID-19 pandemic for acts or omissions occurring prior to the Effective Date. The aforementioned releases do not apply to sentence reduction/compassionate release motions filed pursuant to 18 U.S.C. § 3582.
Duration and Termination of Settlement 17. The parties intend that this Agreement will remain in place until October 31, 2021, but upon the mutual consent of the parties, this date of termination may be modified, shortened or extended. Additionally, the parties may make a motion to extend or motion to terminate this Agreement based on any substantial change in circumstances related to the COVID-19 pandemic’s effect on FCI Danbury or other good faith basis. 18. Upon termination, without the need for any further order of any state or federal court, all jurisdiction of any court to enforce this Agreement shall end. Certification of the Settlement Class and Conditional Dismissal 19. This Agreement is not a consent decree and shall not be incorporated into any judgment of the Court. To the contrary, this is a settlement agreement which the parties agree is a fair, reasonable and adequate resolution of this case. 20. The Petitioner shall file a consent motion for certification of the Medically Vulnerable Class within 5 days of the Effective Date. The Medically Vulnerable Subclass shall be defined, as in Section 1, as “any person incarcerated at FCI Danbury anytime from the Effective Date until the termination date of this Agreement, October 31, 2021, unless otherwise modified by the parties pursuant to the terms of this Agreement, who either: (a) is a List One Inmate or List Two Inmate, or (b) possesses one or more underlying medical conditions which, according to current CDC guidance (i.e., the CDC guidance in effect at the time of the individual’s home confinement review), either (i) places that inmate at increased risk of severe
13

illness from COVID-19; or (ii) might place that inmate at an increased risk of severe illness from COVID-19.” Within three days of the consent motion for class certification being granted, Petitioner and Respondent shall jointly move for an Order to Give Notice, and for a fairness hearing, analogous to Fed. R. Civ. P. 23(e).
21. Subsequent to the fairness hearing referenced above, Petitioner and Respondent shall jointly move pursuant to Fed. R. Civ. P. 41(a)(2) to approve this Agreement and to dismiss the Petition subject to the parties’ compliance with the terms of the Agreement. The dismissal shall be with prejudice and without costs as to all claims asserted in the Action by the Medically Vulnerable Class pertaining to home confinement review and all other claims released under Section 16. This dismissal will be without prejudice and without costs to all other claims brought in the Action. The parties agree that the Court shall retain jurisdiction over the parties and this case to the full extent necessary to enforce the terms of the Agreement.
22. Throughout the duration of the Agreement, the parties agree to enforce the Agreement and resolve any dispute, controversy or claim arising out of or relating to this Agreement, only pursuant to the procedures outlined in Section 23 of this Agreement (the “Dispute Resolution Procedures”). The parties understand and agree that, if approved, and the Court consents, the Court will maintain jurisdiction of this action throughout the duration of the Agreement to resolve any disputes which cannot be amicably resolved between the parties pursuant to the Dispute Resolution Procedures set forth in Section 23. If the parties are unable to resolve any such disputes with the assistance of the Settlement Judge, the Court shall retain jurisdiction to enforce the provisions of the Agreement and the Petitioner may seek specific performance of the Agreement.
14

Dispute Resolution Procedures 23. The following Dispute Resolution Procedures will govern any dispute, controversy or claim arising out of or relating to this Agreement, or any breach or enforcement of this Agreement:
a. In the event of any dispute, controversy or claim arising out of or relating to this Agreement, or any breach or enforcement of this Agreement, counsel for the parties shall meet and confer with each other before seeking intervention from the Court. The parties agree to meet and confer within 5 days of notice of a dispute.
b. Either Party may request that the Honorable Thomas O. Farrish, United States Magistrate Judge or, if Judge Farrish is not available, another D. Conn. United States Magistrate Judge (the “Settlement Judge”), participate in a meet and confer, or in a meeting subsequent to a meet and confer, in order to facilitate informal resolution of the issue.
c. If the parties are unable to resolve their dispute informally, they may seek intervention from the Court.
d. Petitioner agrees he shall not file a motion for contempt in connection with this Agreement. The Court may not entertain a motion for contempt and the Court may not grant any remedial relief in the nature of a contempt of court finding against Respondent or BOP. If Petitioner prevails on any claim alleging Respondent’s or BOP’s non-compliance with this Agreement, the sole remedy shall be specific performance of this Agreement.
e. The Petitioner agrees not to seek any attorneys’ fees and/or costs for any time spent in any portion of dispute resolution.
15

f. The Home Confinement Committee’s substantive determination of whether to place any particular member of the Medically Vulnerable Class on home confinement shall not be subject to judicial review, except that the Court may order the BOP to have the Home Confinement Committee reconsider a home confinement denial that is based upon erroneous factual underpinnings pursuant to Section 12 of this Agreement or a failure to comply with the terms of the Agreement, and may compel specific performance of this Agreement.
Other Provisions 24. This Agreement may be modified only by the mutual written agreement of all parties. 25. This Agreement will not be interpreted against any party as the drafter, and it shall only ever be interpreted as if the organizational headings within the Settlement Terms do not exist. 26. The parties agree that this Agreement may be made public, and Petitioner expressly consents to such release and disclosure pursuant to 5 U.S.C. § 552a(b). 27. This Agreement shall in no way be deemed an admission by any party of liability, fault, misconduct, or a violation of any policies, procedures, or federal, state, or local laws or regulations. Neither this Agreement nor the fact of this settlement shall be construed to be, nor shall it be, admissible in any proceeding as evidence of an admission by any party of a violation of any policies, procedures, or federal, state, or local laws or regulations; nor shall this Agreement or the fact of settlement constitute evidence of any admission by any party as to any issue of law or fact. This Agreement is entered into by all parties for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation. This
16

Agreement shall only ever be admissible in a proceeding to enforce its terms. 28. It is understood between the parties that certain presently unforeseeable events or
conditions, including but not limited to changes in the established treatment practices or standard of care for treatment of COVID-19 infection or the prevalence or effect of COVID-19 in the state of Connecticut, may prevent or obviate the need for compliance with this Agreement. If so, the parties agree to enter into good-faith discussions to attempt to resolve such issues or modify or terminate this Agreement as appropriate. In the event the parties are unable to reach agreement, the Dispute Resolution Procedures in Section 23 shall apply.
29. The provisions of this Agreement may be temporarily suspended or modified in part or in their entirety if the Respondent or her designees determine that a “genuine emergency” exists at FCI Danbury. Genuine emergency means any special circumstances under which it is reasonable to conclude that there is any actual or potential threat to the security of FCI Danbury, or to the safety of the staff, prisoners or other persons within any one of the institution’s facilities. If a “genuine emergency” lasts longer than forty-eight hours, or occurs more than once in a one-week period, Respondent shall report to Petitioner’s counsel, within forty-eight hours except for good cause, the date of the emergency, the nature of the emergency, and which provisions of this Agreement have been temporarily suspended. For the avoidance of doubt, this Section is subject to the Dispute Resolution Procedures in Section 23.
30. Petitioner’s counsel agrees not to seek any attorneys’ fees, costs or expenses of any kind for their past or future work on this case.
17

 
 Case 3:20-cv-00569-MPS Document 133 Filed 08/03/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on :

behalf of all others similarly situated,

:

:

Petitioner,

:

:

v.

:

:

DIANE EASTER, Warden of Federal

:

Correctional Institution at Danbury

:

in her official capacity

:

:

Respondent.

:

Civ. No. 3:20 cv 569 (MPS) AUGUST 3, 2020

PETITIONER’S MOTION TO CERTIFY SETTLEMENT CLASS AND FOR APPOINTMENT OF CLASS REPRESENTATIVE AND CLASS COUNSEL
Petitioner James Whitted, through counsel, respectfully moves, pursuant to Fed.R.Civ.P. 23(c), (e), and (g), to certify a class for settlement purposes, for appointment of petitioner James Whitted as class representative and for appointment of the undersigned as class counsel.
While respondent denies the allegations of the Petition, she consents to the certification of the Settlement Class and for appointment of the class representative and class counsel.
Petitioner submits the annexed Memorandum of Law in support of this Motion.

Case 3:20-cv-00569-MPS Document 133 Filed 08/03/20 Page 2 of 2

Dated: August 3, 2020

Respectfully Submitted,
/s/ Jonathan M. Levine___________________ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver, Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Phone: (203) 325-4491 Email: dgolub@sgtlaw.com
jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Phone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu
tessa.bialek@quinnpiac.edu
Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org
Alexandra Harrington Criminal Justice Advocacy Clinic University at Buffalo School of Law The State University of New York Phone: (716) 984-2453 Email: aharr@buffalo.edu
Counsel for the petitioner James Whitted

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 1 of 17
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on :

behalf of all others similarly situated,

:

:

Petitioner,

:

:

v.

:

:

DIANE EASTER, Warden of Federal

:

Correctional Institution at Danbury

:

in her official capacity

:

:

Respondent.

:

Civ. No. 3:20 cv 569 (MPS) AUGUST 3, 2020

MEMORANDUM OF LAW IN SUPPORT OF PETITIONER’S MOTION TO CERTIFY SETTLEMENT CLASS AND FOR
APPOINTMENT OF CLASS REPRESENTATIVE AND CLASS COUNSEL
Petitioner James Whitted, through counsel, submits this Memorandum in support of his
Motion, pursuant to Fed.R.Civ.P. 23(c), (e), and (g), to Certify a Class for Settlement Purposes
consisting of the following:
any person incarcerated at FCI Danbury anytime from the Effective Date [of the parties’ Settlement Agreement (July 27, 2020)] until the termination date of [the] Agreement, October 31, 2021, unless otherwise modified by the parties pursuant to the terms of [the] Agreement who either (a) is a List One Inmate or List Two Inmate, or (b) possesses one or more underlying medical conditions which, according to current CDC guidance (i.e., the CDC guidance in effect at the time of the individual's home confinement review), either (i) places that inmate at increased risk of severe illness from COVID-19 ("Tier 1 medical conditions"); or (ii) might place that inmate at an increased risk of severe illness from COVID19 ("Tier 2 medical conditions").
As set forth in detail below, the proposed Settlement Class is intended to include those
individuals previously identified as members of the original medically vulnerable subclass
conditionally certified in the Temporary Restraining Order entered by this Court on May 12,
2020 (ECF No. 30 at 65-66, n.32), and to conform the proposed class to subsequent guidance
1

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 2 of 17 from the United States Centers for Disease Control and Prevention (the “CDC”) issued since the entry of the TRO and that may be issued at any future point during the pendency of the proposed Settlement (clause b).
While respondent denies the allegations of the Petition, she consents to the certification of the Settlement Class and to appointment of the class representative and class counsel.

I. STATEMENT OF THE CASE / HISTORY OF THE PROCEEDING The original petitioners1 brought this action, pursuant to 28 U.S.C. § 2241, against the
Warden of FCI Danbury,2 on behalf of the class of all prisoners held at FCI Danbury who are at imminent risk of contracting COVID-19, which feeds on the unsafe, congregate conditions in which they are held. Petitioners also identified a subclass of prisoners who are particularly at risk because they have medical conditions identified by the United States Centers for Disease Control and Prevention which put them at heightened risk of serious illness or death if they

1

This action was originally brought by four named petitioners: Dianthe Martinez-Brooks,

Rejeanne Collier, Jackie Madore and Kenneth Cassidy. As required by this Court’s May 12, 2020

Temporary Restraining Order as well as subsequent Orders, the Bureau of Prisons began a process of

identifying prisoners eligible and appropriate for home confinement under the criteria set forth by the

Court in its Order and released a number of the prisoners so reviewed, including two of the original

named petitioners in this action. Mr. Cassidy was released via a compassionate release order on May 13,

2020. Dianthe Martinez-Brooks, and Rejeanne Collier were released in June 2020. Counsel filed a

voluntary dismissal of Mr. Cassidy’s claims pursuant to Fed. R. Civ. P. 41(a) on June 4, 2020 [ECF No.

76] and filed voluntary dismissals for Ms. Martinez-Brooks and Ms. Collier on June 12, 2020 [ECF Nos.

105 and 106].

At a telephonic status conference with the parties on June 5, 2020, the Court and the parties

agreed that petitioners would file a Rule 21 motion to add parties to protect against a potential procedural

default in the event that the final class representative was likewise released. On June 15, 2020,

petitioners’ Rule 21 Motion was granted by the Court [ECF No. 108], and on June 16, petitioners filed an

Amended Petition [ECF No. 111] naming Amanda Cooper and James Whitted (along with original

petitioner Jackie Madore) as named class representatives.

Ms. Madore and Ms. Cooper have subsequently been released from FCI Danbury, see voluntary

dismissals at ECF Nos. 130 and 130, leaving Mr. Whitted as the sole named class representative.

This memorandum will use plural term “petitioners” in reference to allegations made or relief

sought in prior pleadings filed when there were multiple named representatives.

2

Michael Carvajal, the Director of the Federal Bureau of Prisons, was also originally named as a

respondent, but petitioners voluntarily dismissed their claims against Carvajal. [ECF No. 50].

2

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 3 of 17 contract the disease. Petitioners allege that the fact of their confinement in light of the dangers of COVID-19 violates their Eighth Amendment right against cruel and unusual punishment.
The petition and the subsequently filed Motion for Temporary Restraining Order sought a two-part response to the COVID dangers facing the class of all prisoners and the subclass of medically vulnerable prisoners at FCI Danbury.
First, petitioners contended that the Bureau of Prisons has failed to make full and sufficient use of the authority accorded it to transfer prisoners to home confinement to protect them against COVID-19 at FCI Danbury despite explicit directives from the Attorney General of the United States that it should make aggressive use of that authority to transfer appropriate prisoners to home confinement on an expedited basis. To cure that failure, petitioners sought orders requiring FCI Danbury to identify and undertake the immediate transfer of the most medically vulnerable individuals to home confinement or other appropriate settings.
Second, petitioners contended that FCI Danbury had failed to implement measures necessary to protect the prison population from COVID-19 infection. Petitioners further contended that FCI Danbury's failure to respond to the COVID-19 epidemic has further put petitioners and putative class members at unacceptably heightened risk of injury and illness unrelated to COVID-19. With respect to these failures, petitioners sought immediate implementation for those who remain at FCI Danbury of the social distancing and hygiene measures essential to lowering the risk of the disease and of death and necessary improvements in the system of health care delivery at Danbury.
On May 12, 2020, this Court issued a Temporary Restraining Order granting in part petitioners’ request for provisional remedies. The Court found that the facts regarding the Bureau of Prison’s use of its home confinement authority are largely undisputed and held that those facts establish that officials at FCI Danbury have been making only limited use of their
3

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 4 of 17 home confinement authority, as well as other tools at their disposal to protect inmates during the
outbreak.
Accordingly, the Court entered an Order provisionally certifying the following class of
individuals who are medically vulnerable to COVID-19 in accordance with CDC guidelines:
All individuals in custody at FCI Danbury, while the threat of COVID-19 at the facility remains, who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or (h) serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension."
ECF No. 30 at pp. 65-66 n.32. The Court ordered expedited consideration of home confinement
for all such medically vulnerable class members, and set forth standards for determining their
suitability for home confinement release. The Court subsequently entered additional Orders
pertaining to the home confinement review of the medically vulnerable class. [See, e.g., ECF
Nos. 68, 70]. The Court further scheduled an evidentiary hearing on petitioners’ Motion for
Preliminary Injunction.3
On May 15, 2020, as required by the TRO, respondent filed an initial list identifying 314
inmates who are potential members of the Medically Vulnerable Class. [ECF No. 41 (“List One
Inmates”)].4 Respondent identified the 314 List One Inmates by searching the BOP’s record

3

That hearing, originally scheduled for June 11 and 12, was subsequently continued in light of the

Court’s referral of the parties to Magistrate Judge Thomas Farrish for settlement discussions.

4

Under the parties’ Settlement Agreement, the 314 inmates identified as potential members of the

4

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 5 of 17 systems using a list of ICD-9 and ICD-10 codes identified by petitioner’s counsel as representing conditions specifically identified by the CDC as putting a person at higher risk for severe illness from COVID-19.
As a result of further discussions among the parties concerning the identification of medically vulnerable individuals missed in the initial search, respondent ran a second search of BOP’s record systems, again using a list of ICD-9 and ICD-10 codes identified by petitioner’s counsel as representing conditions specifically identified by the CDC as putting a person at higher risk for severe illness from COVID-19, which resulted in a list of 111 additional inmates who are also potential members of the Medically Vulnerable Class. Subsequently, at petitioner’s counsel’s request, respondent agreed to add an additional 14 inmates to the second list of inmates who are potential members of the Medically Vulnerable Class (“List Two Inmates”).5
While the parties were engaged in settlement discussions with Magistrate Judge Farrish, the CDC refined its guidance on medical conditions that increase an individual’s risk of severe illness from COVID-19. Under its updated guidance, set forth at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditions.html, the CDC distinguishes between conditions that are scientifically established to increase risk of severe illness from COVID-19 (designated as “Tier I medical conditions” in the

Medically Vulnerable Class are included as members of the proposed certified Settlement Class and are designated as “Medically Vulnerable Class List One Inmates” or “List One Inmates. In accordance with the terms of paragraph 4 of the Settlement Agreement, the parties’ proposed Settlement Class references these individuals as “List One Inmates.”

5

At the time it conducted this supplemental search, respondent did not concede that the individuals

identified by that second search were necessarily medically vulnerable consistent with CDC guidance.

Under the parties’ Settlement Agreement, respondent has agreed to treat these individuals as medically

vulnerable and the 125 inmates identified as potential members of the Medically Vulnerable Class are

included as actual members of the proposed certified Settlement Class and are designated as “Medically

Vulnerable Class List Two Inmates” or “List Two Inmates.” In accordance with the terms of paragraph 4

of the Settlement Agreement, the parties’ proposed certified Settlement Class references these individuals

as “List Two Inmates.”

5

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 6 of 17 Settlement Agreement) and those for which there is still only limited data but which, on the basis of current available science, the CDC believes might put individuals at increased risk of severe illness from COVID-19 (designated as “Tier II medical conditions”). Under the parties’ proposed settlement agreement, individuals with either Tier I or Tier II medical conditions who have not yet been identified as List One or List Two Inmates – including, in particular, any inmates newly incarcerated at or transferred into FCI Danbury since the BOP’s ICD searches or those with conditions that were not covered by the searches – are, likewise, included as members of the proposed certified Settlement Class. [A copy of the Settlement Agreement with redacted versions of the annexed exhibits is attached hereto as Exhibit 1.]6
Under the Settlement Agreement, members of the Medically Vulnerable Class will be entitled to home confinement review pursuant to the standards set forth in the Court’s May 12, 2020 TRO [ECF. No. 30], including, inter alia, that (a) both Danbury and the Home Confinement Committee shall “assign substantial weight ... to the inmate’s risk factors for COVID-19 based on CDC guidance,” that (b) a medical clinician shall participate in the home confinement determination at the Home Confinement Committee, (c) that the factors considered in the home confinement determination will be set forth in Review Worksheets; and (d) that both FCI Danbury and the Home Confinement Committee will provide a written explanation of the factual basis for any factors relied upon in a determination to deny home confinement.7

6

The Settlement Agreement contains provisions for the identification and evaluation of potentially

medically vulnerable class members not previously included in List One or List Two (“Non-List

Inmates”). Except in extraordinary circumstances, individuals who have been in BOP custody for two

years or longer will be evaluated for qualifying conditions based exclusively on their BOP medical

records; while individuals who have been incarcerated for less than two years may submit outside medical

records. The Settlement Agreement further provides a mechanism for newly admitted inmates to receive

notice of the settlement and the opportunity to execute authorizations to permit release of their medical

records for consideration of their class eligibility.

7

The Settlement Agreement also provides for reconsideration of home confinement denials shown

to be based on a material error or mistake of fact or failure to otherwise follow the TRO standards as well

6

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 7 of 17 Petitioner now seeks an order pursuant to Fed. R. Civ P. 23(c)(1)(C) certifying the
proposed Class for settlement purposes. Respondent consents to the granting of plaintiffs’
Motion and to the certification of the proposed class for settlement purposes.
II. ARGUMENT
As this Court has previously noted, although the class action device should not be
imported into habeas corpus proceeding to the full limits contemplated by Rule 23, see ECF No.
30 at 62, the Second Circuit has endorsed “the power of the judiciary ... to fashion for habeas
actions appropriate modes of procedure, by analogy to existing rules,” including Rule 23. Id.,
quoting U.S. ex. Rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974). Thus, although the
precise provisions of Rule 23 are not specifically applicable to this habeas proceeding,
consideration of the Rule 23 factors may properly inform whether multi-party or “class”
treatment is appropriate in a habeas proceeding. Id.
A case may proceed as a multi-party or “class” action in this Court if all of the
prerequisites of Federal Rule of Civil Procedure 23(a) and one or more of the subsections of Rule
23(b) are satisfied:
Before approving a class settlement agreement, a district court must first determine whether the requirements for class certification in Rule 23(a) and (b) have been satisfied. See In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 341 (3d Cir. 2010). Thus, the court must assess whether the proposed class satisfies Rule 23(a)'s four threshold requirements: (1) numerosity (“the class is so numerous that joinder of all members is impracticable”), (2) commonality (“there are questions of law or fact common to the class”), (3) typicality (“the claims or defenses of the representative parties are typical of the claims or defenses of the class”), and (4) adequacy of representation (“the representative parties will fairly and adequately protect the interests of the class”). Fed. R. Civ. P. 23(a).
In re American Intern. Group, Inc. Securities Litigation, 689 F.3d 229, 238 (2d Cir. 2012).
as reconsideration of denials where there has been a change in a circumstance which informed the prior denial, i.e., a new suitable release plan not previously available or the resolution of an outstanding criminal charge or detainer.
7

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 8 of 17 Both the United States Supreme Court and the Second Circuit have expressly approved the propriety of certifying a class solely for purposes of a class action settlement. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 618 (1997); American Intern. Group, 689 F.3d at 238-39; Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir. 1982). See also In re Marsh & McLennan Cos., Inc. Sec. Litig., No. 04 Civ. 8144 (CM), 2009 WL 5178546, at *8 (S.D.N.Y. Dec. 23, 2009); In re SCOR Holding (Switzerland) AG Litig., 537 F. Supp.2d 556 (S.D.N.Y. 2008). Indeed, certification of a settlement class “has been recognized throughout the country as the best, most practical way to effectuate settlements involving large numbers of claims by relatively small claimants.” In re Prudential Sec. Inc., Ltd. P'ships Litig., 163 F.R.D. 200, 205 (S.D.N.Y. 1995). “[S]ettlement classes are favored when there is little or no likelihood of abuse, and the settlement is fair and reasonable and under the scrutiny of the trial judge.” Id. (quoting In re Beef Indus. Antitrust Litig., 607 F.2d 167, 174 (5th Cir. 1979)). A district court “[c]onfronted with a request for settlement-only class certification ... need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial.” American Intern. Group, 689 F.3d at 239, quoting Amchem, 521 U.S. at 620. However, in the settlement context “other specifications of [Rule 23]—those designed to protect absentees by blocking unwarranted or overbroad class definitions—demand undiluted, even heightened, attention.” Id. It is well-settled that the relevant inquiry for class certification is not whether plaintiffs are likely to prevail on the merits of their claims, but rather, whether the requirements of Rule 23 are met. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met”); see also In re Initial Public Offering Sec. Litig., 471 F .3d 24, 41 (2d Cir. 2006) (class certification
8

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 9 of 17 motion should not become pretext for partial trial of the merits). In applying Rule 23, courts are
to use a liberal, not restrictive, construction. Marisol A. v. Guiliani, 126 F.3d 372, 377 (2d Cir.
1997).
This case is appropriate for certification of a medically vulnerable class for settlement
purposes, as it indisputably meets the four prerequisites of Rule 23(a), as well as all of the
requirements of Rule 23(b)(3).
A. The Proposed Class
Petitioner seeks certification of the following proposed settlement class:
any person incarcerated at FCI Danbury anytime from the Effective Date [of the parties’ Settlement Agreement (July 27, 2020)] until the termination date of [the] Agreement, October 31, 2021, unless otherwise modified by the parties pursuant to the terms of [the] Agreement who either (a) is a List One Inmate or List Two Inmate, or (b) possesses one or more underlying medical conditions which, according to current CDC guidance (i.e., the CDC guidance in effect at the time of the individual's home confinement review), either (i) places that inmate at increased risk of severe illness from COVID-19 ("Tier 1 medical conditions"); or (ii) might place that inmate at an increased risk of severe illness from COVID19 ("Tier 2 medical conditions").
B. The Proposed Class Satisfies the Four Prerequisites of Rule 23(a)
Rule 23(a) provides:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Each of these prerequisites is fully satisfied in this case.
9

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 10 of 17 1. Numerosity
There is no mechanical test for determining whether in a particular case the class is so numerous that joinder of all members is impracticable. To meet the numerosity requirement, one need only show that it is difficult or inconvenient to join all members of the class. Cent. States SE. & SW. Areas Health and Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 244-45 (2d Cir. 2007). The issue is one for the court to be resolved in light of the facts and circumstances of the case. Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (citing 1 Herbert B. Newberg, Newberg on Class Actions: A Manual for Group Litigation at Federal and State Levels §3.05, at 141-42 (2d ed. 1985)). The “difficulty in joining as few as 40 class members should raise a presumption that joinder is impracticable.” Id.; Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (holding that “numerosity is presumed at a level of 40 members”); see also Marcera v. Chinlund, 595 F.2d 1231, 1238 (2d Cir.), judg. vacated on other grounds, 442 U.S. 915 (1979) (“[t]here is little doubt that the 42 sheriffs constitute a group sufficiently large to meet the numerosity requirement of Rule 23(a)(l)”); 3B James W. Moore, et al., Moore’s Federal Practice if 23.05[1], at 139-45 (2d ed. 1987) (courts generally certify classes in excess of forty). As this Court noted earlier in this proceeding
In this case at least 439 prisoners at FCI Danbury have already been identified as members of the proposed medically vulnerable class by virtue of their inclusion in List One and List Two based on respondent’s search of relevant ICD codes for CDC COVID-19 risk factors in the BOP medical records database. These 439 prisoners represent approximately 40 percent of the pre-COVID census at the institution. Extrapolating from this experience, it is reasonable to conclude that between 30 and 40 percent of new admissions to the institution between now and October 2021 will, likewise, be eligible for membership in the proposed medically vulnerable class such that the final number of would be class members will almost certainly exceed 600.
10

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 11 of 17 The size of the proposed class is plainly more than sufficient to meet the numerosity requirement of Rule 23(a).
In addition to class size, several other factors in this case suggest the impracticability of joinder and favor class certification. “Determination of practicability depends on all the circumstances surrounding a case, not on mere numbers”" Robidoux, 987 F.2d at 936.
The considerations identified by the Second Circuit as relevant to determining the practicability of joinder include:
judicial economy arising from the avoidance of a multiplicity of actions, geographical dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members. Id. These considerations also militate strongly in favor of a finding of numerosity here. Consolidation of these claims serves judicial economy because it obviates the need for hundreds of individual suits. See id. at 936 (judicial economy served by consolidating “what could be over 100 individual suits”). Joinder of the potential class members would also be impracticable because the members of the class are transient and subject to being dispersed throughout the BOP network of facilities. See Westchester Independent Living Center, Inc. v. State University of New York, Purchase College, 331 F.R.D. 279, 291 (S.D.N.Y. 2019) (“fluid composition” of SUNY's student body “weighs in favor of finding numerosity requirement satisfied”); Clarkson v. Coughlin, 783 F. Supp. 789, 797 (S.D.N.Y. 1992) (“fluid composition” of prison population supports certification). The limited economic resources of the overwhelming majority of prisoners also militates strongly in favor of certification. See Robidoux, 987 F.2d at 936 (“‘[w]here it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device’”) (quoting Deposit Guar. Nat'!
11

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 12 of 17 Bank v. Roper, 445 U.S. 326, 339 (1990)). Finally, this action seeks prospective injunctive relief which would implicate the interests of future class members (who would also be at risk of inconsistent results from individual suits) – a consideration which weighs heavily in favor of class certification. Westchester Independent Living, 331 F.R.D. at 291.
2. Common Questions of Law and Fact Rule 23(a)(2) requires that the action contain questions of law or fact that are common to the class. Fed. R. Civ. P. 23(b)(2). “The commonality requirement [of Rule 23(a)(2)] is met if plaintiff's grievances share a common question of law or fact.” Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 155 (2d Cir. 2001) (quoting Marisol, 126 F.3d at ). This does not mean that all issues must be identical as to each class member. Rather, it requires plaintiffs simply to “identify some unifying thread among the members’ claims that warrants class treatment.” In re Flag Telecom Holdings, Ltd. Sec. Litig., 245 F.R.D. 147, 158 (S.D.N.Y. 2007) (quoting In re Vivendi, 242 F.R.D. at 84); In re NTL, Inc. Sec. Litig., No. 02 Civ. 3013 (LAK) (AJP), 2006 WL 330113, at *6 (S.D.N.Y. Feb. 14, 2006). The threshold for commonality is not high – it is only necessary to find at least one issue common to all class members. Marisol A., 126 F.3d at 376 (“The commonality requirement is met if plaintiffs’ grievances share a common question of law or of fact”); see also Matyasovsky v. Housing Auth. of the City of Bridgeport, 226 F.R.D. 35, 41 (D. Conn. 2005) (to establish commonality, “plaintiffs need not establish that all questions of law and fact among the putative class are identical”) (emphasis in original); In re PE Corp. Sec. Litig., 228 F.R.D. 102, I 08 (D. Conn. 2005) (test for commonality is “not demanding”). As this Court has previously noted, even applying the “more stringent standards” suggested by the Second Circuit in Preiser, 506 F.2d at 1127, the medically vulnerable class proposed for settlement purposes satisfies the commonality requirement. As the Court noted, all
12

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 13 of 17 members of the class “are recognized as falling in the high-risk group as to which heightened precautions are justified,” ECF No. 30 at 65, and the facts “regarding the process employed by the Warden [and the BOP] in considering inmates for home confinement are common to the entire []class, as are the legal questions regarding whether the Warden [and the BOP]’s handling of those processes in these circumstances is constitutional.” Id.; see, e.g, Karen L. v. Physicians Health Serves., 202 F.R.D. 94, 100 (D. Conn. 2001) (“An alleged common course of conduct is sufficient to satisfy the common question requirement”) (citation omitted). The relief sought is, likewise, common throughout the class – i.e., expedited home confinement review pursuant to the mandate of the Court’s May 12, 2020 TRO [ECF. No. 30], with due consideration (i.e., “substantial weight) assigned to each class member’s risk factors for COVID-19 based on CDC guidance, pursuant to procedures applied commonly to every home confinement review.
3. Petitioner’s Claims are Typical of the Claims of the Class Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(b)(3). The requirement is satisfied here because “each class member’s claim arises from the same course of events [application of respondent’s home confinement review process], and each class member makes similar legal arguments to prove the defendant’s liability.” Cent. States SE. & SW. Areas Health and Welfare Fund, 504 F.3d at 245; accord Robidoux, 987 F.2d at 936-37 (“When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.”).
4. The Representative Plaintiffs and Their Counsel Will Fairly and Adequately Protect the Interests of the Class. The final requirement of Rule 23(a) is that “the representative parties will fairly and
13

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 14 of 17 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In connection with Rule 23(a)(4), courts in the Second Circuit consider whether the plaintiffs’ interests are antagonistic to the class and whether class counsel is experienced and qualified. Baffa v. Donaldson, Lufkin & Jenrett Sec. Cmp., 222 F. 3d 52, 60 (2d Cir. 2000); In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992); see also Amchem Prods. v. Windsor, 521 U.S. 591, 624 ( 1997) (inquiry “serves to uncover conflicts of interest between named plaintiffs and the class they seek to represent”).
Mr. Whitted is an appropriate and adequate class representative for the proposed class of medically vulnerable individuals who are or may be at increased risk of severe illness from COVID-19. Mr. Whitted suffers from asthma for which he currently uses two medicated inhalers. He is also morbidly obese. In 2018, Mr. Whitted suffered a fall which resulted in head trauma, spinal damage, and permanent injury to his left leg for which he requires a custom brace. As a result of his injury he is required to use a walker and a cane to ambulate. He is in need of physical therapy to maintain leg function but has not received any such therapy since the onset of the COVID-19 lockdown at FCI Danbury.
Additionally, class counsel are “qualified, experienced and able to conduct the litigation” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000), and also meet the requirements of Rule 23(g). See Declarations of Professor Sarah F. Russell, Professor Marisol Orihuela, David S. Golub, Esq. and Professor Alexandra Harrington (annexed hereto as Exhibits 2 through 5 respectively)(setting forth the qualifications and experience of class counsel in class action litigation, the work counsel performed in identifying and investigating potential claims in this action, and the resources counsel have and will commit to representing the class to support the findings required pursuant to Rule 23(g)(1)).
14

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 15 of 17 C. The Proposed Settlement Class Satisfies the Requirements of Rule 23(b)(2) The proposed settlement class also satisfies the requirements of Rule 23(b)(2) in that respondent “acted or refused to act on grounds that apply generally to the class” so that “a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (citing Fed. R. Civ. P. 23(b)(2))). Rule 23(b)(2) certification is generally appropriate for litigation seeking institutional reform through class-wide declaratory or injunctive relief. See A.R. v. Connecticut State Board of Education, 3:16-cv-01197 (CSH), 2020 WL 2092650 at *12 (D. Conn. May 1, 2020), citing Stinson v. City of New York, 282 F.R.D. 360, 379 (S.D.N.Y. 2012) (internal citations omitted). “Certification under Rule 23(b)(2) is appropriate when a plaintiff seeks to enjoin a “systemic failure” on the part of a governmental body or public entity to comply with statutory [or other] requirements. Id. (citing Westchester Indep. Living Ctr., 331 F.R.D. at 300 (certifying a Rule 23(b)(2) class of individuals with mobility disabilities alleging that the state university failed to comply with the requirements set forth in the Americans with Disabilities Act and Rehabilitation Act); Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 290 F.R.D. 409, 412, 420 (S.D.N.Y. 2012) (certifying a Rule 23(b)(2) class of individuals with disabilities alleging that the City of New York systemically failed to address the needs of disabled persons in the City’s emergency and disaster planning in violation of the Americans with Disabilities Act and Rehabilitation Act). As this Court has already noted, this case alleges that the Warden and the BOP’s existing pre-suit home confinement policies, as applied to medically vulnerable prisoners, amount to deliberate indifference. ECF 30 at 64. Those policies applied to the entire proposed medically vulnerable class. The relief sought in the settlement – expedited home confinement review based on the standards set forth in this Court’s TRO with additional procedural protections enumerated in the settlement agreement – is clearly susceptible of class-wide declaratory or injunctive relief.
15

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 16 of 17 The relief sought in the proposed settlement agreement establishes procedural protections

common to the class as a whole and does not require the Court to make individualized

determinations with respect to particular prisoners or even to review the substantive correctness

of a home confinement determination as to any particular prisoner. The allegation of a policy

failure by the Warden and BOP to make appropriate use of their home confinement authority and

request for expedited home confinement consideration for all class members based on uniform

agreed policies and procedures are plainly susceptible to “a single injunction or declaratory

judgment would provide relief to each member of the class,” and represent the paradigmatic

example of claims for which Rule 23(b)(2) certification was designed.

Ill. CONCLUSION

For the foregoing reasons, petitioner’s Motion Certify Settlement Class should be

granted, the proposed settlement class should be certified, petitioner should be appointed as class

representative and petitioner’s counsel should be appointed as Counsel for the class.

Dated: August 3, 2020

Respectfully Submitted,

/s/ Jonathan M. Levine___________________ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver, Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Phone: (203) 325-4491 Email: dgolub@sgtlaw.com
jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Phone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu
tessa.bialek@quinnpiac.edu
16

Case 3:20-cv-00569-MPS Document 134 Filed 08/03/20 Page 17 of 17 Marisol Orihuela, ct30543 Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org Alexandra Harrington Criminal Justice Advocacy Clinic University at Buffalo School of Law The State University of New York Phone: (716) 984-2453 Email: aharr@buffalo.edu Counsel for the petitioner James Whitted
17

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 1 of 34
EXHIBIT 1

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 2 of 34

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED,

:

individually, and on behalf of all others

:

similarly situated,

:

:

Petitioner,

:

:

v.

:

:

:

D. EASTER, Warden of Federal Correctional :

Institution at Danbury, in her official capacity :

:

Respondent.

:

Case No. 3:20-cv-569 (MPS)

SETTLEMENT AGREEMENT

This Settlement Agreement (the “Agreement”) is made and entered into effective July 27,

2020 (the “Effective Date”) by Petitioner James Whitted, individually and on behalf of the

members of the proposed class defined herein in Section 1 (the “Medically Vulnerable Class”),

on the one hand, and the Respondent, Diane Easter, in her official capacity as the Warden

(“Respondent” or the “Warden”) of the Federal Correctional Institution located in Danbury,

Connecticut (“FCI Danbury”) and the Bureau of Prisons (the “BOP”), on the other hand.

RECITALS

Whereas, on April 27, 2020, several FCI Danbury inmates, subsequently joined by

Petitioner, brought this action (the “Action”) alleging the Respondent was violating the Eighth

Amendment rights of FCI Danbury prisoners by (i) failing to make full use of her home

confinement and compassionate release authority, and (ii) failing to implement adequate

measures to prevent the continued spread of COVID-19 at FCI Danbury;

Whereas Respondent denies and vigorously disputes that any FCI Danbury inmate at

issue in the present litigation has been treated with deliberate indifference;

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 3 of 34
Whereas, on May 12, 2020, United States District Judge Michael P. Shea entered a
Temporary Restraining Order in this Action (the “May 12, 2020 TRO” (ECF 30)) provisionally
certifying a putative subclass of medically vulnerable to COVID-19 FCI Danbury inmates and setting forth standards for determining their suitability for home confinement release.1
Whereas, on May 15, 2020, Respondent filed an initial list identifying 314 inmates who
are potential members of the Medically Vulnerable Class (the “Medically Vulnerable Class List
One Inmates” or “List One Inmates”). Respondent identified the 314 List One Inmates by
searching the BOP’s record systems using a list of ICD-9 and ICD-10 codes identified by
Petitioner’s counsel as representing conditions specifically identified by the CDC as putting a
person at higher risk for severe illness from COVID-19;
Whereas Respondent ran a second search of BOP’s record systems, again using a list of
ICD-9 and ICD-10 codes identified by Petitioner’s counsel as representing conditions
specifically identified by the CDC as putting a person at higher risk for severe illness from
COVID-19, which resulted in a list of 111 additional inmates who are also potential members of
the Medically Vulnerable Class; and subsequently, at Petitioner’s counsel’s request, Respondent
agreed to add an additional 14 inmates to be included into the second list of inmates who are
1 In the May 12, 2020 TRO, the medically vulnerable subclass was defined as: “All individuals in custody at FCI Danbury, while the threat of COVID-19 at the facility remains, who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or (h) serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.” ECF 30 at pp. 65-66 n.32; see also ECF No. 26 at p. 2.
2

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 4 of 34
potential members of the Medically Vulnerable Class (collectively, these 125 inmates are the “Medically Vulnerable Class List Two Inmates” or “List Two Inmates”);
Whereas attached as Exhibit A is a list setting out the List One Inmates and the List Two Inmates, respectively;
Whereas the parties recognize that there may be certain inmates, including future inmates, who are not List One Inmates or List Two Inmates but who nevertheless may already be or may in the future become members of the Medically Vulnerable Class (“Non-List Medically Vulnerable Class Inmates” or “Non-List Inmates”);
Whereas the BOP has statutory authority to transfer prisoners to home confinement under 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541;
Whereas, on March 26, 2020, Attorney General William Barr issued a memorandum that directed the BOP to “prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” and provided a non-exhaustive list of discretionary factors for evaluating inmates for home confinement;
Whereas, on March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which authorized the Director of the BOP to lengthen the amount of time prisoners can be placed on home confinement under Section 3624(c)(2)— previously capped at the shorter of 10% of their sentence or 6 months—provided that the Attorney General makes a finding that “emergency conditions will materially affect the functioning of the Bureau”;
Whereas, on April 3, 2020, Attorney General Barr issued a memorandum in which he found that “emergency conditions are materially affecting the functioning of the Bureau” and
3

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 5 of 34
directed the Bureau to “move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions” while cautioning that the BOP must continue to make “individualized [home confinement] determinations”;
Whereas the BOP has established a multidisciplinary committee within its Central Office in Washington, D.C. (the “Home Confinement Committee” or “HCC”) to make home confinement review determinations for inmates who are not eligible for home confinement under BOP’s current guidance but nevertheless could possibly be determined suitable for home confinement as an exception case;
Whereas the parties now desire to resolve the present litigation on the mutually acceptable terms set forth below, which they agree are a fair, reasonable and adequate resolution of this case;
NOW, THEREFORE, in consideration of the promises set forth herein, the parties agree and covenant as follows:
SETTLEMENT TERMS Settlement Class 1. This Settlement Agreement is entered into on behalf of all members of the Medically Vulnerable Class, consisting of any person incarcerated at FCI Danbury anytime from the Effective Date until the termination date of this Agreement, October 31, 2021, unless otherwise modified by the parties pursuant to the terms of this Agreement, who either: (a) is a List One Inmate or List Two Inmate, or (b) possesses one or more underlying medical conditions which, according to current CDC guidance (i.e., the CDC guidance in effect at the time of the individual’s home confinement review), either (i) places that inmate at increased risk of severe illness from COVID-19 (“Tier 1 medical conditions”); or (ii) might place that inmate at an
4

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 6 of 34
increased risk of severe illness from COVID-19 (“Tier 2 medical conditions”). List One and List Two Inmate Home Confinement Reviews 2. Respondent has already reviewed all List One Inmates for home confinement at
the institutional level and Respondent asserts that it has conducted these reviews pursuant to Attorney General Barr’s March 26 and April 3, 2020 memoranda, the current BOP guidance at the time of each review, and the standards set forth in the May 12, 2020 TRO (see ECF 30). The Respondent has already referred to the Home Confinement Committee all List One Inmates who were not eligible for home confinement under the current BOP guidance at the time of each review but whom the Respondent nevertheless believed could even possibly be eligible for home confinement as an exception case based upon the standards set forth in the May 12, 2020 TRO (see ECF 30). BOP asserts that the Home Confinement Committee has already made home confinement determinations based upon the standards set forth in the May 12, 2020 TRO (see ECF 30) for all List One Inmates referred to it. The parties agree that Section 13 of this Agreement, infra, resolves any disputes or disagreements the parties may have, or have ever had, with respect to the adequacy of the home confinement reviews performed under this Section.
3. To the extent she has not already done so, the Respondent agrees to have all List Two Inmates reviewed for home confinement at the institutional level pursuant to Attorney General Barr’s March 26 and April 3, 2020 memoranda, the current BOP guidance at the time of each review, and the standards set forth in the May 12, 2020 TRO (see ECF 30). To the extent that the standards set forth in the May 12, 2020 TRO differ from Attorney General Barr’s March 26 and April 3, 2020 memoranda or the current BOP guidance at the time of each review, the provisions of the May 12, 2020 TRO shall control. Petitioner acknowledges that Respondent, at the institutional level, may not be authorized to apply provisions of the May 12, 2020 TRO that
5

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 7 of 34
conflict with current BOP guidance. Respondent agrees to refer all List Two Inmates who are not approved for home confinement at the institutional level to the Home Confinement Committee. BOP agrees to have the Home Confinement Committee make a home confinement determination for all such inmates based upon the standards set forth in the May 12, 2020 TRO (see ECF 30).
Identification of Medically Vulnerable Non-List Inmates 4. The parties agree that Non-List Inmates can become recognized as members of the Medically Vulnerable Class, but only through the following process:
a. Petitioner’s counsel may propose any Non-List Inmate to become a recognized member of the Medically Vulnerable Class, but only upon a good faith belief, substantiated by documentary evidence, that such individual falls within the definition of the Medically Vulnerable Class.
b. Respondent and BOP agree to recognize as a member of the Medically Vulnerable Class any inmate proposed under Section 4(a), unless within 7 days of such proposal the Respondent or BOP disagrees that the proposed inmate is a member of the Medically Vulnerable Class.
c. Any disagreements between counsel for Petitioner and Respondent or BOP over whether a particular Non-List Inmate is a recognized member of the Medically Vulnerable Class shall be finally resolved by a physician detailed to the BOP from the United States Public Health Service, Department of Health and Human Services, (the “PHS Physician”) within 7 days of such dispute being referred to him or her.
d. Neither Respondent nor BOP nor the PHS Physician will consider whether an
6

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 8 of 34
inmate has previously tested positive for COVID-19 in making a determination about whether such individuals falls within the definition of the Medically Vulnerable Class for purposes of this Section. e. Determinations about whether any Non-List Inmate is a recognized member of the Medically Vulnerable Class will be based solely on BOP records, unless (1) the inmate at issue has been in BOP custody for less than the two consecutive years preceding the date of the inmate’s proposal under Section 4(a), or (2) Petitioner’s counsel makes a good faith representation that extraordinary and compelling circumstances show the Non-List Inmate has a COVID-19 risk factor(s) which warrant consideration of such outside medical records. In either such instance, the inmate may submit outside medical records to be included in the inmate’s BOP records, which—once submitted and made part of the inmate’s BOP records—will collectively be reviewed in determining whether an inmate is a member of the Medically Vulnerable Class. 5. To help facilitate the identification of medically vulnerable Non-List Inmates, the parties agree to abide by the following timeline: a. Within 1 day of the Effective Date, Petitioner’s counsel agrees to provide Respondent medical release forms for certain inmates currently housed at FCI Danbury. b. Within 7 days of the Effective Date, Respondent or BOP will begin producing to Petitioner’s counsel the past two years of medical records for each inmate on behalf of whom Petitioner’s counsel submits a medical release form pursuant to Section 5(a). Respondent or BOP will finish producing all such records within 14
7

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 9 of 34
days of the Effective Date. c. Respondent will continue to undertake efforts to identify medically vulnerable to
COVID-19 inmates who have arrived or will arrive at FCI Danbury after June 3, 2020 pursuant to Attorney General Barr’s March 26 and April 3, 2020 memoranda. Respondent will ensure that each inmate admitted to FCI Danbury after June 3, 2020 receives a copy of the attached notice and authorization to release medical records form, attached as Exhibit C to this Agreement (the “Authorization Form”). For those inmates admitted after the Effective Date of this Agreement, Respondent will provide each such inmate a copy of the Authorization Form at the time of their admission. Inmates will be responsible for submitting signed Authorization Forms to Respondent. Within 7 days of Respondent’s receipt of a signed Authorization Form, Respondent will provide a copy of the signed form and the inmate’s past two years of BOP medical records to Petitioner’s counsel. Medically Vulnerable Non-List Inmate Home Confinement Reviews 6. Respondent agrees to have all Non-List Inmates who are recognized as members of the Medically Vulnerable Class pursuant to the process set forth in Section 4 of this Agreement reviewed for home confinement at the institutional level pursuant to Attorney General Barr’s March 26 and April 3, 2020 memoranda, the current BOP guidance at the time of each review, and the standards set forth in the May 12, 2020 TRO (see ECF 30). To the extent that the provisions set forth in the March 12, 2020 TRO differ from Attorney General Barr’s March 26 and April 3, 2020 memoranda or the current BOP guidance at the time of each review, the provisions of the May 12, 2020 TRO shall control. Petitioner acknowledges that
8

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Respondent, at the institutional level, may not be authorized to apply provisions of the May 12, 2020 TRO that conflict with current BOP guidance. Respondent agrees to refer all such inmates who are not approved for home confinement at the institutional level to the Home Confinement Committee. BOP agrees to have the Home Confinement Committee make a home confinement determination for all such inmates based upon the standards set forth in the May 12, 2020 TRO (see ECF 30). After the List Two Inmates are reviewed for home confinement, with respect to anyone else subsequently recognized as a Medically Vulnerable Class member under Section 4 of this Agreement, Respondent and BOP shall complete their home confinement review within a reasonable time from recognition and shall endeavor to do so within fourteen days.
Principles Governing Home Confinement Assessments 7. For each inmate reviewed for home confinement pursuant to Section(s) 3, 6, 13, and/or 14 of this Agreement, a medical clinician employed or appointed by Respondent or BOP will verify that all Tier 1 medical conditions and Tier 2 medical conditions that each such inmate has, based on qualifying medical records as set forth in Section 4(e) herein, are identified and listed for consideration at both the institutional and Home Confinement Committee levels of review. 8. In making home confinement determinations under this Agreement pursuant to the May 12, 2020 TRO, including in particular the May 12, 2020 TRO’s mandate to “assign substantial weight … to the inmate’s risk factors for COVID-19 based on CDC guidance,” Respondent and the BOP agree not to utilize the “high-average-no” risk methodology employed in ECF 92, or consider the fact that any particular inmate may have previously tested positive for COVID-19. 9. BOP’s National Health Technology Administrator—or a substitute medical
9

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 11 of 34
clinician in the event the National Health Technology Administrator is unavailable—will remain a member of the Home Confinement Committee to assist the Committee’s home confinement reviews.
10. The Respondent will create Review Worksheets for each person being reviewed that include: (i) a list of the person’s CDC tier one and tier two COVID-19 risk factors; (ii) the person’s age; (iii) the offense/s of conviction; (iv) the person’s projected release date (PRD); (v) the percentage of statutory time served; (vi) a list of pending charges or detainers, if applicable; (vii) the person’s security level; (vii) the person’s PATTERN risk level; (viii) if the release plan has been deemed unsuitable, the reasons for that conclusion; and (ix) the person’s DST, if he or she has one. The Home Confinement Committee will also use these Review Worksheets in making home confinement determinations. Respondent agrees that if she determines that a Medically Vulnerable Class member is not eligible for home confinement, she will comply with the May 12, 2020 TRO and provide a written explanation of the factual basis for any factors relied upon for the denial.
11. The BOP agrees that if the Home Confinement Committee denies home confinement to a Medically Vulnerable Class member, it will comply with the May 12, 2020 TRO regarding a written explanation of the factual basis for any factors relied upon for the denial. Respondent and BOP agree to provide Petitioner’s counsel copies of the documents generated in the process of conducting home confinement reviews under this Agreement, including the Review Worksheets, the PATTERN Worksheets (i.e., worksheets containing the PATTERN score calculations) and the reason for denial (if the person is denied). The parties agree that the form of the documents produced under this Section will be consistent with the worksheets that have been disclosed in this litigation (see, e.g., ECF 59). BOP will endeavor to
10

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release individuals approved for home confinement to home confinement within 14 days of the approval decision unless public safety or the absence of any home in which to place the inmate would make it unsafe to move the inmate to home confinement within that 14 day period.
Home Confinement Reconsiderations 12. Petitioner’s counsel may, based on a good faith belief, submit to Respondent and BOP for the Home Confinement Committee’s reconsideration any inmate who was denied home confinement but whose Review Worksheets or PATTERN Worksheets produced to Petitioner’s counsel under Section 11 contain an error or mistake of fact, including but not limited to a mistake in the description of an inmate’s PATTERN score or percentage of time served, or if the incorrect underlying medical condition(s) is listed on the worksheets for a particular inmate. Respondent and BOP may refuse to submit for reconsideration any such inmate to the extent they disagree on a good faith basis with Petitioner’s counsel’s determination that an error or mistake of fact exists or that the error or mistake of fact is material, in which case the parties’ dispute will be subject to the Dispute Resolution Procedures in Section 23. 13. Respondent and BOP agree to submit the 54 List One Inmates set out in the list attached to this Agreement as Exhibit B (“Exhibit B Inmates”) to the Home Confinement Committee for it to reconsider their denials of home confinement. The Home Confinement Committee’s re-review for home confinement of the Exhibit B Inmates will comply with Sections 7 through 11 of this Agreement, and is subject to enforcement under this Agreement. 14. The BOP agrees that, if an inmate’s lack of a release plan is, or is among, the reason(s) for denial of home confinement, and a suitable release plan is subsequently presented, each such inmate will have the right to apply, on their own initiative, for a home confinement rereview. Such inmates shall be re-reviewed first by the institution, and, if denied again by the institution, then by the Home Confinement Committee. Where a pending charge, detainer, or
11

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 13 of 34
warrant is, or is among, the reason(s) for denial of home confinement, and that pending charge, detainer, or warrant has been resolved, each such inmate will have the right to apply, on their own initiative, for a home confinement review. Such inmates shall be re-reviewed first by the institution, and, if denied again by the institution, then by the Home Confinement Committee. All such home confinement re-reviews under this Section will comply with Sections 7 through 11 of this Agreement, and are subject to enforcement under this Agreement. This Section applies to all List Two Inmates and Non-List Inmates, as well as to List One Inmates previously denied home confinement by the Home Confinement Committee.
Resolution and Release of Claims 15. The parties agree that this Agreement resolves all claims in the above-captioned case. 16. The named Petitioner and all members of the Medically Vulnerable Class, as defined in Section 1, individually and behalf of all their respective heirs, beneficiaries, successors and assigns, in consideration of the benefits of this Agreement, release and forever discharge the Respondent and BOP, and all their respective present and former officers, employees, agents, heirs, successors and assigns, from all actions, causes of action, suits, claims, or controversies, for any and all forms of non-monetary relief arising from or based on either: (i) any denial of home confinement or exercise of the BOP’s statutory authority to transfer prisoners to home confinement which may be brought during the time this Agreement is in effect, except as otherwise provided under this Agreement, or (ii) any acts or omissions alleged or that could have been alleged in the Action relating to the COVID-19 pandemic occurring prior to the Effective Date. For the avoidance of doubt, this release applies to any and all Medically Vulnerable Class members’ habeas corpus cases pursuant to 28 U.S.C. § 2241 seeking any relief
12

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 14 of 34
due to the COVID-19 pandemic for acts or omissions occurring prior to the Effective Date. The aforementioned releases do not apply to sentence reduction/compassionate release motions filed pursuant to 18 U.S.C. § 3582.
Duration and Termination of Settlement 17. The parties intend that this Agreement will remain in place until October 31, 2021, but upon the mutual consent of the parties, this date of termination may be modified, shortened or extended. Additionally, the parties may make a motion to extend or motion to terminate this Agreement based on any substantial change in circumstances related to the COVID-19 pandemic’s effect on FCI Danbury or other good faith basis. 18. Upon termination, without the need for any further order of any state or federal court, all jurisdiction of any court to enforce this Agreement shall end. Certification of the Settlement Class and Conditional Dismissal 19. This Agreement is not a consent decree and shall not be incorporated into any judgment of the Court. To the contrary, this is a settlement agreement which the parties agree is a fair, reasonable and adequate resolution of this case. 20. The Petitioner shall file a consent motion for certification of the Medically Vulnerable Class within 5 days of the Effective Date. The Medically Vulnerable Subclass shall be defined, as in Section 1, as “any person incarcerated at FCI Danbury anytime from the Effective Date until the termination date of this Agreement, October 31, 2021, unless otherwise modified by the parties pursuant to the terms of this Agreement, who either: (a) is a List One Inmate or List Two Inmate, or (b) possesses one or more underlying medical conditions which, according to current CDC guidance (i.e., the CDC guidance in effect at the time of the individual’s home confinement review), either (i) places that inmate at increased risk of severe
13

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 15 of 34
illness from COVID-19; or (ii) might place that inmate at an increased risk of severe illness from COVID-19.” Within three days of the consent motion for class certification being granted, Petitioner and Respondent shall jointly move for an Order to Give Notice, and for a fairness hearing, analogous to Fed. R. Civ. P. 23(e).
21. Subsequent to the fairness hearing referenced above, Petitioner and Respondent shall jointly move pursuant to Fed. R. Civ. P. 41(a)(2) to approve this Agreement and to dismiss the Petition subject to the parties’ compliance with the terms of the Agreement. The dismissal shall be with prejudice and without costs as to all claims asserted in the Action by the Medically Vulnerable Class pertaining to home confinement review and all other claims released under Section 16. This dismissal will be without prejudice and without costs to all other claims brought in the Action. The parties agree that the Court shall retain jurisdiction over the parties and this case to the full extent necessary to enforce the terms of the Agreement.
22. Throughout the duration of the Agreement, the parties agree to enforce the Agreement and resolve any dispute, controversy or claim arising out of or relating to this Agreement, only pursuant to the procedures outlined in Section 23 of this Agreement (the “Dispute Resolution Procedures”). The parties understand and agree that, if approved, and the Court consents, the Court will maintain jurisdiction of this action throughout the duration of the Agreement to resolve any disputes which cannot be amicably resolved between the parties pursuant to the Dispute Resolution Procedures set forth in Section 23. If the parties are unable to resolve any such disputes with the assistance of the Settlement Judge, the Court shall retain jurisdiction to enforce the provisions of the Agreement and the Petitioner may seek specific performance of the Agreement.
14

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 16 of 34
Dispute Resolution Procedures 23. The following Dispute Resolution Procedures will govern any dispute, controversy or claim arising out of or relating to this Agreement, or any breach or enforcement of this Agreement:
a. In the event of any dispute, controversy or claim arising out of or relating to this Agreement, or any breach or enforcement of this Agreement, counsel for the parties shall meet and confer with each other before seeking intervention from the Court. The parties agree to meet and confer within 5 days of notice of a dispute.
b. Either Party may request that the Honorable Thomas O. Farrish, United States Magistrate Judge or, if Judge Farrish is not available, another D. Conn. United States Magistrate Judge (the “Settlement Judge”), participate in a meet and confer, or in a meeting subsequent to a meet and confer, in order to facilitate informal resolution of the issue.
c. If the parties are unable to resolve their dispute informally, they may seek intervention from the Court.
d. Petitioner agrees he shall not file a motion for contempt in connection with this Agreement. The Court may not entertain a motion for contempt and the Court may not grant any remedial relief in the nature of a contempt of court finding against Respondent or BOP. If Petitioner prevails on any claim alleging Respondent’s or BOP’s non-compliance with this Agreement, the sole remedy shall be specific performance of this Agreement.
e. The Petitioner agrees not to seek any attorneys’ fees and/or costs for any time spent in any portion of dispute resolution.
15

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 17 of 34
f. The Home Confinement Committee’s substantive determination of whether to place any particular member of the Medically Vulnerable Class on home confinement shall not be subject to judicial review, except that the Court may order the BOP to have the Home Confinement Committee reconsider a home confinement denial that is based upon erroneous factual underpinnings pursuant to Section 12 of this Agreement or a failure to comply with the terms of the Agreement, and may compel specific performance of this Agreement.
Other Provisions 24. This Agreement may be modified only by the mutual written agreement of all parties. 25. This Agreement will not be interpreted against any party as the drafter, and it shall only ever be interpreted as if the organizational headings within the Settlement Terms do not exist. 26. The parties agree that this Agreement may be made public, and Petitioner expressly consents to such release and disclosure pursuant to 5 U.S.C. § 552a(b). 27. This Agreement shall in no way be deemed an admission by any party of liability, fault, misconduct, or a violation of any policies, procedures, or federal, state, or local laws or regulations. Neither this Agreement nor the fact of this settlement shall be construed to be, nor shall it be, admissible in any proceeding as evidence of an admission by any party of a violation of any policies, procedures, or federal, state, or local laws or regulations; nor shall this Agreement or the fact of settlement constitute evidence of any admission by any party as to any issue of law or fact. This Agreement is entered into by all parties for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation. This
16

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 18 of 34
Agreement shall only ever be admissible in a proceeding to enforce its terms. 28. It is understood between the parties that certain presently unforeseeable events or
conditions, including but not limited to changes in the established treatment practices or standard of care for treatment of COVID-19 infection or the prevalence or effect of COVID-19 in the state of Connecticut, may prevent or obviate the need for compliance with this Agreement. If so, the parties agree to enter into good-faith discussions to attempt to resolve such issues or modify or terminate this Agreement as appropriate. In the event the parties are unable to reach agreement, the Dispute Resolution Procedures in Section 23 shall apply.
29. The provisions of this Agreement may be temporarily suspended or modified in part or in their entirety if the Respondent or her designees determine that a “genuine emergency” exists at FCI Danbury. Genuine emergency means any special circumstances under which it is reasonable to conclude that there is any actual or potential threat to the security of FCI Danbury, or to the safety of the staff, prisoners or other persons within any one of the institution’s facilities. If a “genuine emergency” lasts longer than forty-eight hours, or occurs more than once in a one-week period, Respondent shall report to Petitioner’s counsel, within forty-eight hours except for good cause, the date of the emergency, the nature of the emergency, and which provisions of this Agreement have been temporarily suspended. For the avoidance of doubt, this Section is subject to the Dispute Resolution Procedures in Section 23.
30. Petitioner’s counsel agrees not to seek any attorneys’ fees, costs or expenses of any kind for their past or future work on this case.
17

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 19 of 34

JVbr z1, Zo}o
Date

Petitioner and Class Representative James Whitted: By His Counsel
David S. Golub Jonathan M. Levine Sarah F. Russell Tessa Bialek Marisol Orihuela Alexandra Harrington

18

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 20 of 34
Respondent, Diane Easter, Warden of Federal Correctional Institution at Danbury, in her official capacity and through her attorneys: John H. Durham United States Attorney
John B. Hughes ' Michelle L. McConaghy David C. Nelson Jillian R. Orticelli Nathaniel M. Putnam Assistant U.S. Attorneys
Federal Bureau ofPrisons
Darrin Howard Northeast Regional Counsel Federal Bureau of Prisons
19

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 21 of 34
EXHIBIT A

LIST ONE INMATES

First Three Digits of
Register Number
792 098 674 326 046 750 652 591 806 333 154 092 684 062 719 244 530 226 008 644 133
063 624 856 122 116 117 161 795 045 866 860 824 249
516 757 071 923 127 156
679 134 008 657 722 087 159

Initials (first name,
last name)
SA JA AA LA DA MA KA RA MA CA JA JA RA CA GA DB DB CB AB AB SB
LB SB AB DB JB HB KB VB DB JB MB KB AB
AB KB JB LB LB BB
KB KB GB JB CC SC JC

1

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 22 of 34
EXHIBIT A

093

AC

652

EC

766

IC

161

DC

260

NC

724

BC

728

JC

916

WC

212

RC

635

KC

763

AC

614

JC

608

IC

363

CC

291

SC

477

CC

706

AC

959

JC

658

MD

261

KD

857

ED

674

OD

798

RD

070

AD

212

SD

262

MD

636

ED

054

RD

695

JD

251

CD

200

DD

041

DD

141

TD

133

HD

120

CD

969

ED

516

MD

511

AE

892

LE

857

AE

699

CE

065

FE

353

TE

136

CF

619

RF

796

JF

115

SF

218

CF

284

JF

125

JF

136

CF

746

DF

499

CG

2

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 23 of 34
EXHIBIT A

168

OG

129

MG

505

RG

067

DG

776

RG

632

KG

017

CG

302

TG

760

CG

773

JG

182

AG

765

MG

554

KG

415

JG

157

BG

339

JG

088

SG

972

DG

257

CH

706

TH

057

RH

463

DH

967

LH

543

MH

668

VH

216

FH

303

WH

121

TH

965

NH

716

LH

255

JH

051

BH

197

AI

582

RI

146

JI

231

MI

620

CJ

085

BJ

134

CJ

002

WJ

205

BJ

449

RJ

671

LJ

665

SJ

253

DJ

271

EJ

156

FJ

131

TJ

686

VK

394

RK

049

DK

218

GK

134

LL

3

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 24 of 34
EXHIBIT A

899

SL

298

BL

134

LL

758

JL

285

JL

103

FL

036

CL

722

AM

561

EM

624

JM

196

DM

126

MM

250

DM

094

EM

114

RM

713

DM

757

YM

698

AM

255

SM

244

JM

864

HM

058

JM

134

KM

010

CM

993

MM

479

BM

177

DM

001

MM

691

CM

076

MM

132

TM

718

GM

218

LM

219

DM

559

TM

722

JM

592

AM

778

RM

356

LM

175

DM

602

JM

252

RM

145

FM

527

NM

470

BM

809

DM

228

MM

010

DM

789

JN

257

MN

108

NN

122

KN

920

CO

224

NO

4

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 25 of 34
EXHIBIT A

583

AP

059

TP

652

SP

179

WP

967

SP

619

GP

892

MP

103

IP

137

RP

427

RP

633

MP

135

MP

626

AP

004

CP

766

BP

286

TP

915

KP

560

MQ

892

JR

522

MR

696

RR

241

DR

082

WR

049

KR

344

LR

634

ER

399

GR

123

CR

468

DR

773

WR

826

CR

554

CR

116

NR

632

AR

675

JR

494

AR

945

IR

298

BR

715

KR

261

TR

660

AR

668

RR

116

RR

711

JR

827

KR

249

MS

261

TS

588

SS

507

RS

454

WS

788

DS

867

LS

907

TS

5

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 26 of 34
EXHIBIT A

278

DS

274

LS

911

SS

086

RS

180

LS

691

MS

994

JS

219

MS

583

ES

337

TS

252

IS

221

MS

913

MS

791

DS

261

JS

059

MT

718

MT

038

PT

161

JT

256

RT

231

DT

737

CT

207

LT

776

NT

329

FT

486

AT

011

MT

140

ET

655

NT

129

EU

761

MV

170

JV

670

JV

536

AV

496

JV

663

AW

830

DW

838

JW

108

TW

210

JW

248

BW

799

MW

275

KW

306

JW

759

DW

284

MW

223

AW

162

JY

694

CY

040

JY

998

AY

162

MY

260

JZ

6

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 27 of 34
EXHIBIT A

LIST TWO INMATES

First Three Digits of Register Number
617 247 325 203 762 717 907 114 230 465 728 927 273 735 352 153 169 158 244 117 020 831 060 612 963 183 522 127 374 714 539 776 256 773 818 273 714 159 892

Initials (first name, last name)
AA SA JA FA EA CA DA RB LB SB MB TB SB RB AB RB AC JC EC JC FC AC AC JC SC JC JC EC FC MD MD JD GD YD SD KD AD VD ME

7

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 28 of 34
EXHIBIT A

390

WF

133

OF

158

DF

501

GG

011

WG

129

MG

264

AG

791

MG

138

JH

117

KH

859

BI

012

KK

027

DK

722

KK

860

VL

859

KL

637

EL

985

TL

858

BL

183

AL

434

JL

252

AM

280

AM

161

JM

087

JM

266

RM

854

KM

265

NM

046

MM

646

OM

340

HM

248

BM

248

GM

286

AM

682

SM

115

KM

288

BM

089

JM

251

RM

584

TM

922

SM

011

DO

554

TO

214

CP

462

LP

740

GP

116

JP

8

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 29 of 34
EXHIBIT A

761

EP

860

KP

160

DP

377

FP

084

RP

855

AP

497

JP

037

HQ

119

KR

203

JR

880

MR

102

CR

135

TR

158

NR

966

NR

762

JR

260

CS

219

MS

102

CS

675

DS

725

CS

308

DS

197

JS

710

SS

245

TS

501

JT

004

DU

301

TV

069

TW

762

SW

710

JW

926

BW

082

BW

732

MW

057

TW

519

JW

689

DW

051

PY

496

CY

9

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 30 of 34
EXHIBIT B

First Three Digits of Register Number
792 046 652 719 116 795 159 916 635 291 706 969 516 619 125 136 773 182 765 554 415 339 967 668 303 049 036 722 196 864 244 010 076 718 602 228 257 920 633 286 261 907 691 252

Initials (first name, last name)
SA DA KA GA JB VB JC WC KC SC AC ED MD RF JF CF JG AG MG KG JG JG LH VH WH DK CL AM DM HM JM CM MM GM JM MM MN CO MP TP TS TS MS IS

1

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 31 of 34
EXHIBIT B

791

DS

261

JS

256

RT

017

DT

486

AT

011

MT

670

JV

838

JW

108

TW

193

JW

2

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 32 of 34
Exhibit C

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 33 of 34
MARTINEZ-BROOKS V. EASTER NOTICE
If you are medically vulnerable to COVID-19, as defined by the CDC, you have the right to expedited consideration for home confinement. This notice informs you of your potential rights if you have documentation (medical records) of the following conditions:
 Obesity (BMI of 30 or higher)  Diabetes  Serious heart conditions (such as heart failure, coronary artery disease, cardiomyopathies, pulmonary hypertension)  Cardiovascular or cerebrovascular disease (such as hypertension, high blood pressure, or stroke)  Chronic Kidney Disease  Liver Disease  Chronic Lung Disease (such as COPD, emphysema and chronic bronchitis, idiopathic pulmonary fibrosis, or cystic fibrosis)  Asthma (moderate-to-severe)  Cancer  Immunocompromised state (from blood, bone marrow, or organ transplant; immune deficiencies; HIV; use of
corticosteroids; or use of other immune weakening medicines)  Hemoglobin Disorders (such sickle cell disease and thalassemia)  Neurologic conditions (such as dementia)  Pregnancy  Smoking
If you believe you are medically vulnerable to COVID-19 based on the above criteria, please contact or have your attorney contact Attorney Jonathan Levine at jlevine@danburylawsuit.com or at 184 Atlantic Street, Stamford, CT 06902. Please provide the following information:
Your name, register number, medical condition(s), medications you are taking, and any other information you think is important.
In order to be considered for home confinement pursuant to the Martinez-Brooks lawsuit, you must sign the attached records release form and return it to your case manager so that the Martinez-Brooks lawyers can access your BOP medical records.
(Once you have submitted the release, you should also contact the lawyers to let them know to expect your release form.)

Case 3:20-cv-00569-MPS Document 134-1 Filed 08/03/20 Page 34 of 34

U.S Department of Justice

Certification of Identity

FORM APPROVED OMB NO. 1103-0016 EXPIRES 05/31/2020
Privacy Act Statement. In accordance with 28 CFR Section 16.41(d) personal data sufficient to identify the individuals submitting requests by mail under the Privacy Act of 1974, 5 U.S.C. Section 552a, is required. The purpose of this solicitation is to ensure that the records of individuals who are the subject of U.S. Department of Justice systems of records are not wrongfully disclosed by the Department. Requests will not be processed if this information is not furnished. False information on this form may subject the requester to criminal penalties under 18 U.S.C. Section 1001 and/or 5 U.S.C. Section 552a(i)(3).
Public reporting burden for this collection of information is estimated to average 0.50 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Suggestions for reducing this burden may be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget, Public Use Reports Project (1103-0016), Washington, DC 20503.
Full Name of Requester 1 ________________________________________________________________________
Citizenship Status 2 __________________________ Social Security Number 3 _____________________________
Current Address _______________________________________________________________________________
Date of Birth _______________________________ Place of Birth ______________________________________
OPTIONAL: Authorization to Release Information to Another Person
This form is also to be completed by a requester who is authorizing information relating to himself or herself to be released to another person. Further, pursuant to 5 U.S.C. Section 552a(b), I authorize the U.S. Department of Justice to release any and all information relating to me to:
Legal Clinic, Quinnipiac Univ. School of Law, legalclinic@quinnipiac.edu, & its cooperating law firms Print or Type Name
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that I am the person named above, and I understand that any falsification of this statement is punishable under the provisions of 18 U.S.C. Section 1001 by a fine of not more than $10,000 or by imprisonment of not more than five years or both, and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of 5 U.S.C. 552a(i)(3) by a fine of not more than $5,000.
Signature 4 _________________________________________________ Date _____________________________

1
Name of individual who is the subject of the record(s) sought.
2
Individual submitting a request under the Privacy Act of 1974 must be either “a citizen of the United States or an alien lawfully admitted for permanent residence,” pursuant to 5 U.S.C. Section 552a(a)(2). Requests will be processed as Freedom of Information Act requests pursuant to 5 U.S.C. Section 552, rather than Privacy Act requests, for individuals who are not United States citizens or aliens lawfully admitted for permanent residence.
3
Providing your social security number is voluntary. You are asked to provide your social security number only to facilitate the identification of records relating to you. Without your social security number, the Department may be unable to locate any or all records pertaining to you.
4
Signature of individual who is the subject of the record sought.
FORM DOJ-361

Case 3:20-cv-00569-MPS Document 134-2 Filed 08/03/20 Page 1 of 6
EXHIBIT 2

Case 3:20-cv-00569-MPS Document 134-2 Filed 08/03/20 Page 2 of 6

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on :

behalf of all others similarly situated,

:

:

Petitioner,

:

:

v.

:

:

DIANE EASTER, Warden of Federal

:

Correctional Institution at Danbury

:

in her official capacity

:

:

Respondent.

:

Civ. No. 3:20 cv 569 (MPS) AUGUST 3, 2020

DECLARATION OF SARAH F. RUSSELL I, Sarah F. Russell, hereby declare pursuant to 28 U.S.C. § 1746:
1. I am a Professor of Law at Quinnipiac University School of Law and Director and Supervising Attorney in the School of Law’s Legal Clinic. I serve as counsel to the Petitioner in this case.
2. I make this declaration in support of Petitioner’s motion for class certification, consented to by Respondent’s counsel. This declaration is based on my personal knowledge.
3. As Director of the Legal Clinic, I oversee the Clinic’s litigation and other projects. My practice, and that of the Clinic’s law student interns, includes litigating prison conditions cases in federal court and representing incarcerated clients on a range of other matters include compassionate release motions in federal court, parole hearings, habeas petitions, and reentry planning.
4. Along with law student interns at Legal Clinic, I have litigated numerous cases involving prisoners in the U.S. District Court for the District of Connecticut. See, e.g., United States v.
1

Case 3:20-cv-00569-MPS Document 134-2 Filed 08/03/20 Page 3 of 6
Almontes, No. 3:05-CR-58 (SRU), 2020 WL 1812713 (D. Conn. Apr. 9, 2020) (compassionate release motion granted on behalf of man at FCI Danbury based, inter alia, on BOP’s failure to provide adequate medical care for his spinal cord injury); Bardo v. Wright, No. 3:17-CV-1430 (JBA), 2019 WL 5864820 (D. Conn. Nov. 8, 2019) (court denied summary judgment in case alleging deliberate indifference to client’s serious medical needs); Brodeur v. Champion, No. 3:17 CV 1738 (RMS) (D. Conn.) (litigated through trial prisoner excessive force case); Milner v. Black, 3:16-cv-1621 (SRU) (D. Conn.) & Milner v. Mulligan, 3:16-cv-1857 (D. Conn.) (appointed pro bono counsel to incarcerated client asserting claims of excessive force and deliberate indifference to his medical needs); Jane Doe v. Corrections, et. al, 3:14-cv-00469RNC (D. Conn.) (appointed guardian ad litem in case challenging transfer by the Department of Children and Families of 16-year-old transgender girl to adult prison absent charges or conviction in adult court); Goode v. Blue, No. 3:10CV135-MRK (D. Conn.) (appointed pro bono counsel for client alleging assault by a correctional officer at Connecticut’s supermax prison).
5. Prior to joining Quinnipiac, I served as Director of the Liman Public Interest Program at Yale Law School, where I led projects, research, and workshops relating to incarcerated people and litigated prison conditions cases with the Jerome N. Frank Legal Services Organization’s Prison Legal Service Clinic and Complex Federal Litigation Clinic. See, e.g., Forde v. Baird, 720 F. Supp. 2d 170 (D. Conn. 2010) (successfully challenged on religious freedom grounds the BOP’s policy of subjecting a Muslim woman to non-emergency pat searches by male correctional officers at FCI Danbury); Ilina v. Zickefoose, 591 F. Supp. 2d 145, 145 (D. Conn. 2008) (habeas petition filed under 28 U.S.C. § 2241 on behalf of woman incarcerated at FCI Danbury alleging denial of adequate medical care). I was previously an assistant federal defender in the District of Connecticut, where I represented clients facing federal criminal
2

Case 3:20-cv-00569-MPS Document 134-2 Filed 08/03/20 Page 4 of 6
charges from arraignment through appeal. I also served as a law clerk in the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the Second Circuit.
6. Tessa Bialek is the Senior Clinical Fellow and Staff Attorney at Quinnipiac’s Legal Clinic, where she has worked since 2016. In this role, she has worked on litigation involving state and federal prisoners, including amicus briefs addressing issues related to long sentences for juvenile offenders, juvenile parole hearings under Connecticut’s Public Act 15-84, and prison conditions cases, including claims of inadequate medical care, in federal court. Prior to joining the Legal Clinic, she clerked for federal judges on the U.S. District Court for the District of Connecticut and the U.S. Court of Appeals for the Second Circuit, and co-led the San Francisco Affirmative Litigation Project at Yale Law School, which partners with the San Francisco City Attorney’s Office to conceive, develop, and litigate consumer protection and other public interest-focused lawsuits.
7. I have worked with Attorney Bialek and law student interns on all aspects of the current litigation. To investigate the claims underlying this litigation, we have communicated with hundreds of persons currently incarcerated at FCI Danbury, with several persons recently released from FCI Danbury, and with dozens of family members of people currently incarcerated at FCI Danbury. We have also communicated with more than 100 attorneys representing individuals currently incarcerated at FCI Danbury, including federal public defenders in Connecticut and in districts across the country. Over the course of these communications, we have received and reviewed dozens of compassionate release submissions and other court documents, as well as medical records, grievances, and other documents from individuals currently and recently incarcerated at FCI Danbury.
3

Case 3:20-cv-00569-MPS Document 134-2 Filed 08/03/20 Page 5 of 6
8. In developing legal claims and charting a course of action in this case, we have collaborated with prison litigation experts nationwide, as well as with attorneys pursuing similar class claims in federal courts across the country. Informed by these resources and independent research, counsel identified Homer Venters, M.D., and Jaimie Meyer, M.D., M.S., F.A.C.P., to serve as experts in the case. Dr. Venters conducted an inspection of FCI Danbury on May 27, 2020, where he observed the conditions in medical, isolation, and housing facilities and spoke with a number of staff members and incarcerated people at FCI Danbury. He prepared an expert report based on his observations. Dr. Meyer has been involved in the process of identifying medically vulnerable individuals (including developing relevant ICD-diagnostic code searches and prepared an expert report. Both experts have advised the team on a range of COVID-19 issues in correctional settings.
9. In addition, we have reviewed voluminous discovery in this case, including more than 20,000 pages of documents related to, inter alia: the home confinement review process at FCI Danbury and at the Home Confinement Committee; FCI Danbury’s policies and practices related to the provision of medical care generally and during the COVID-19 pandemic, including medical records; pandemic response-related policies and practices, including those pertaining to testing, sanitation, hygiene, protective equipment, physical distancing, quarantine, and isolation; and staffing, including medical staffing, at the institution. Petitioner’s counsel deposed the two defense experts, Asma Tekbali and Jeffery Beard, as well Warden Diane Easter, Health Services Administrator Angela Dukate, Case Manager Coordinator Ashley Cocho, and FCI Danbury Union President Drew Ueberroth.
4

Case 3:20-cv-00569-MPS Document 134-2 Filed 08/03/20 Page 6 of 6 I declare that the foregoing is true and correct to the best of my knowledge.
______/s/__________ Sarah F. Russell Professor of Law
5

Case 3:20-cv-00569-MPS Document 134-3 Filed 08/03/20 Page 1 of 4
EXHIBIT 3

Case 3:20-cv-00569-MPS Document 134-3 Filed 08/03/20 Page 2 of 4

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on :

behalf of all others similarly situated,

:

:

Petitioner,

:

:

v.

:

:

DIANE EASTER, Warden of Federal

:

Correctional Institution at Danbury

:

in her official capacity

:

:

Respondent.

:

Civ. No. 3:20 cv 569 (MPS) AUGUST 3, 2020

DECLARATION OF MARISOL ORIHUELA I, Marisol Orihuela, hereby declare pursuant to 28 U.S.C. § 1746
1. I am a Clinical Associate Professor of Law at Yale Law School and a Supervising Attorney at the Jerome N. Frank Legal Services Organization (LSO). I serve as counsel to the Petitioner in this case.
2. I make this declaration in support of Petitioner’s motion for class certification, consented to by Respondent’s counsel. This declaration is based on my personal knowledge.
3. My practice, and that of law student interns of the LSO, includes complex habeas litigation, complex civil rights litigation, and class actions, including specifically on behalf of incarcerated populations.
4. One of the clinics at LSO that I co-direct is lead class counsel in a Rule 23(b)(2) class action brought on behalf of immigration detainees challenging prolonged no-bond detention. Reid v. Donelan, CV 13-30125 PBS (D. Mass), 19-787, 19-1900 (1st Cir.). In addition, I have previously been involved in Rule 23(b)(2) class actions involving the rights of incarcerated

Case 3:20-cv-00569-MPS Document 134-3 Filed 08/03/20 Page 3 of 4
populations. See Franco-Gonzalez-Holder, CV 10-02211 DMG (C.D. Cal) (class action successfully establishing right to counsel on behalf of immigration detainees who are not competent to represent themselves in removal proceedings); Rosas v. Baca, CV 12-00428 DDP (C.D. Cal) (class action challenging deputy-on-inmate violence at the Los Angeles County Jail).
5. I and law student interns at LSO have also previously litigated numerous complex habeas challenges, including recent challenges to incarceration based on COVID-19. See e.g., JSR v. Sessions, CV 18-1110 VAB (D. Conn.) (habeas action on behalf of detained children challenging Immigration and Customs Enforcement (ICE)’s family separation and detention practice); Campbell, et al v. Moniz, CV 20-10697 PBS (D. Mass) (multi-petitioner COVID-19 habeas on behalf of immigration detainees); Terwilliger v. Cook, CV 20-540 SRU (D. Conn) (COVID-19 habeas on behalf of state prisoner); Hurdle v. Cook, CV 20-605 KAD (D. Conn) (same); Diaz v. Cook, CV 20-653 KAD (D. Conn) (same). In addition, I and law student interns at LSO also have experience litigating complex civil rights actions. See, e.g., Thiersaint v. DHS, CV 1812406 DJC (D. Mass) (Federal Tort Claims Act action seeking damages for torts committed while plaintiff was in ICE custody); Batalla-Vidal v. Wolf, CV 16-4756 NGG (E.D.N.Y), 18-845 (2d. Cir.), 18-889 (Sp Ct) (successful challenge to Trump Administration’s 2017 attempted termination of the DACA program). Prior to becoming a clinical law professor, counsel served for three and a half years as a Deputy Federal Public Defender in the Central District of California, where she defended complex federal prosecutions mostly for an incarcerated population.
6. Through the course of this litigation thus far, law student interns working under my supervision have conducted legal research, reviewed discovery, investigated the claims asserted

Case 3:20-cv-00569-MPS Document 134-3 Filed 08/03/20 Page 4 of 4
by Petitioner, and drafted documents. They have also appeared with me in the course of settlement negotiations, and assisted Petitioner’s counsel during the course of those negotiations.
I declare that the foregoing is true and correct to the best of my knowledge.
_______________________ Marisol Orihuela Clinical Associate Professor of Law

Case 3:20-cv-00569-MPS Document 134-4 Filed 08/03/20 Page 1 of 9
EXHIBIT 4

Case 3:20-cv-00569-MPS Document 134-4 Filed 08/03/20 Page 2 of 9

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on :

behalf of all others similarly situated,

:

:

Petitioner,

:

:

v.

:

:

DIANE EASTER, Warden of Federal

:

Correctional Institution at Danbury

:

in her official capacity

:

:

Respondent.

:

Civ. No. 3:20 cv 569 (MPS) AUGUST 3, 2020

DECLARATION OF DAVID S. GOLUB David S. Golub does declare, under penalty of perjury, as follows: 1. I am a member of the law firm of Silver Golub & Teitell LLP, attorneys for petitioner Whitted and the proposed Settlement Class in this action. I submit this Declaration in support of petitioner’s pending Motion for Certification of a Settlement Class in this action and to describe the qualifications and class action experience of my firm and the work we (and our co-counsel) have performed in this action.
Efforts of Class Counsel and Resources Committed to the Class 2. Commencing in April 2020, my firm – predominantly, my partner Jonathan M. Levine and I – undertook, in combination with co-counsel from the Quinnipiac and Yale legal clinics, to bring this proposed class action on behalf of individuals at FCI Danbury imperilled by the COVID-19 pandemic. In April 2020, FCI Danbury had been identified as one of the institutions in the federal Bureau of Prisons most severely affected by the COVID-19 pandemic,

Case 3:20-cv-00569-MPS Document 134-4 Filed 08/03/20 Page 3 of 9
and the BOP had, at that point, made virtually no use of its home confinement authority to protect prisoners at risk from COVID-19.
3. My firm agreed to participate in the litigation understanding that our participation would entail a considerable investment of time and resources. Petitioners’ claims in this matter involved significant legal complexity and difficulty and had to be litigated in an extremely time-intensive fashion in light of the urgency of the risk faced by medically vulnerable prisoners from the presence of COVID-19 in FCI Danbury.1 Within approximately two weeks of forming the legal team, counsel had made extensive contacts with a significant number of FCI Danbury prisoners through the Corrlinks system as well as communications with family and outside counsel, had reviewed pleadings from similar cases being filed against other federal and state facilities throughout the country, and had assembled and filed a 71-page Petition for Writ of Habeas Corpus accompanied by 14 declarations, compellingly detailing petitioners’ allegations concerning the conditions at FCI Danbury and the dangers to medically vulnerable inmates in the institution. Three days after the filing of the original Petition, the team filed an Emergency Motion for a Temporary Restraining Order supported by an extensive memorandum of law and eight additional declarations.
4. On May 12, 2020, after a hearing on May 6, 2020, the Court entered a temporary restraining order (“TRO”) providing procedures for the identification and consideration for home confinement release of medically vulnerable Danbury inmates, and scheduled a hearing on petitioners’ motion for a preliminary injunction.
1 In the three months that have elapsed since the initiation of this matter, the parties and the Court have generated more than 130 entries on the Court docket.
2

Case 3:20-cv-00569-MPS Document 134-4 Filed 08/03/20 Page 4 of 9
5. Subsequent to the entry of the TRO, we undertook oversight of the BOP’s process for identifying medically vulnerable individuals at Danbury as mandated by the TRO. We also undertook extensive discovery in preparation for the preliminary injunction hearing, including serving and responding to written discovery; review of over 30,000 pages of discovery production; and multiple depositions of FCI Danbury staff responsible for both the administration of the health care system at the facility and the process for home confinement review. We retained experts on both the public health and prison management issues arising from the presence of COVID-19 at FCI Danbury, undertook an inspection of the facility, and completed depositions of petitioners’ and respondent’s experts. All of this – involving hundreds of hours of legal time – was accomplished by early June 2020. Simultaneous with these efforts to litigate this case, the team maintained regular contact with prisoners at the facility, their families, attorneys and other representatives, fielding and generating well over 2,000 communications on behalf of several hundred prisoners.
6. Attorney Levine and I have personally devoted several hundred hours of time to this action; and, as the litigation intensified in preparation for the preliminary injunction hearing, four associates at my firm also became significantly involved in the representation, and also devoted substantial time to this action.
7. After this matter was prepared for hearing on petitioners’ Motion for Preliminary Injunction, the parties agreed to enter into settlement discussions under the aegis of Magistrate Judge Thomas Farrish. Those discussions proceeded over 9 separate sessions (encompassing more than 38 hours), stretched over a calendar month, and ultimately resulted in an agreement in principle. Subsequent to that agreement, reported to Judge Farrish on July 8, 2020, the parties
3

Case 3:20-cv-00569-MPS Document 134-4 Filed 08/03/20 Page 5 of 9
engaged in extensive discussions among themselves to produce the written Settlement Agreement which was finalized on July 27, 2020 subject to the Court’s approval after a fairness hearing.
8. Attorney Levine and I, and all counsel for petitioner and the proposed Settlement Class, believe that the agreement we have reached provides significant benefit to the proposed class of medically vulnerable prisoners at FCI Danbury. The TRO entered by the Court in this matter – which set standards and a process for identifying medically vulnerable inmates at FCI Danbury and evaluation medically vulnerable inmates for home confinement release, but carefully did not supersede the BOP’s authority to make ultimate decisions about such release – was, unlike other orders involving federal correctional institutions, not challenged on appeal by the Bureau of Prisons and is one of fewer than a handful of emergency orders affecting federal and state facilities entered nationwide that have not been reversed or stayed on appeal. As a result of the continued vitality of the Court’s TRO, we were able to negotiate a Settlement Agreement that provides, in accordance with the standards set forth by the Court in the TRO, for identification of medically vulnerable prisoners at FCI Danbury who meet criteria set forth in relevant CDC guidance – importantly, including whether such prisoner’s medical conditions are scientifically established as or merely suspected of putting the individual at risk of severe illness from COVID-19. Further, and, we believe, a unique result among any COVID-related prison cases in the country, the Settlement Agreement accords medically vulnerable individuals at FCI Danbury expedited home confinement consideration subject to the standards originally mandated by the Court in its May 12, 2020 TRO (including substantial weight accorded to the prisoners’
4

Case 3:20-cv-00569-MPS Document 134-4 Filed 08/03/20 Page 6 of 9
medical conditions and a prohibition against the use of automatic disqualifiers), which the BOP has agreed to adhere to in future FCI Danbury home confinement determinations.
9. I have reviewed the Declaration of Professor Sarah Russell, co-counsel in this matter, and concur in her description and analysis of the prosecution of this litigation by the team representing the named petitioner(s) and the proposed class.
The Experience of My Firm with Class and other Complex Litigation 10. Silver Golub & Teitell LLP has extensive experience in class action litigation and in assessing the reasonableness of class action settlements, having served as lead class counsel in a number of federal and state court class actions. See State Employees Bargaining Agent Coalition et al. v. Rowland, et al., 3:03-cv-221 (AVC) (D. Conn.) (class action against former Governor of State of Connecticut on behalf of unionized State workforce challenging decision to target union members for lay-off in retaliation for their and their unions’ exercise of their First Amendment rights of speech and association, resulting in back pay and other relief to approximately 2,800 workers who suffered adverse employment action and compensatory damages to an additional 45,000 state workers for the chilling of their First Amendment rights); Oshonya Spencer, et al. v. Hartford Financial Services Group, Inc., 3:05-cv-1681 (JCH) (D. Conn.) (class action against national insurance company and its property and casualty subsidiaries on behalf of almost 22,000 nationwide class members challenging structured settlements entered into by defendant with personal injury claimants resulting in the creation of a $72.5 million common fund); Anglim v Xerox Corporation, Civ. No. B-83-251 J(EBB) (D. Conn.) (class action resulting in increased benefits to a class of approximately 40,000 members of Xerox's pension plan); Christiansen v. Chesebrough Pond's, Inc., No. 592 CV 727 (AHN) (D.
5

Case 3:20-cv-00569-MPS Document 134-4 Filed 08/03/20 Page 7 of 9
Conn.) (class action resulting in severance awards to a class of 45 former employees of Chesebrough Pond’s); Town of New Hartford et al. v. Connecticut Resources Recovery Authority, 291 Conn. 433 (2009) (class action on behalf of 70 Connecticut municipalities resulting in judgment in excess of $35 million); see also Heidgerd v. Olin Corporation, Civ. No. N-86-51 (TFGD) (D. Conn.), aff'd, 906 F.2d 903 (2d Cir. 1990) (action on behalf of 178 former employees of Olin Corp resulting in award of severance benefits to all plaintiffs); Rodriguez v. Progressive Northwestern Insurance Company, No. UWY CV-00-0160554 S (X06) (Conn. Super. CLD at Waterbury) and Diglio v. Nationwide Mutual Insurance Company, No. UWY-CV-00-0161135 (X06) (Conn. Super. CLD at Waterbury) (class actions pursuant to the Connecticut Unfair Trade Practices Act and Unfair Insurance Practices Act on behalf of 814 and 129 personal injury claimants respectively whose personal injury claims were improperly settled by the defendant insurance companies in violation of Conn. Gen. Stats. § 52-572a).
11. As noted above, Jonathan Levine and I have been the principal attorneys in our firm responsible for this litigation from the outset. I am a graduate of Yale College (1970) and Yale Law School (1973). I helped found and have been a partner at Silver Golub & Teitell since it was formed in 1978. Attorney Levine is a graduate of Harvard College (1986) and Yale Law School (1990). He joined the firm in 1990 upon graduation from law school, and became a partner on January 1, 1999. Both Attorney Levine’s and my practices have focused on trial and appellate litigation of complex matters, and he and I have litigated together the substantial majority of the cases referred to above.
6

Case 3:20-cv-00569-MPS Document 134-4 Filed 08/03/20 Page 8 of 9
12. My firm has, further, been previously involved in class action litigation involving prison conditions at FCI Danbury. See Miles, et al v. Bell, Nos. B-79-137 (TFGD) & B-82-626 (TFGD) (D. Conn.), an action that resulted, mid-trial, in “voluntary” changes by the BOP in the conditions for pre-trial detainees at Danbury.
13. My firm is, further, currently involved in a number of proposed class actions in this District and other federal and state courts around the country. See e.g., Curtis, et al v. Aetna Life Insurance Co., 3:19 cv 1579 (MPS) (D. Conn); Dill, et al v. JPMorgan Chase Bank, N.A., 1:19 cv 10947 (KLF) (S.D.N.Y.); Hubbard, et al v. Google, LLC, et al, 5:19 cv 7016 (BLF) (N.D. Cal.); Rochester Drug Co-operative, Inc., et al v. Mylan, Inc., 0:20 cv 827 (ECT) (D. Minn.); Thornley, et al v. Clearview AI, Inc., 1:20 cv 3843 (N.D. Ill.) (SLC); Retirement Programs of the Town of Fairfield, et al v. Allianz Global Investors US LLC, 1:20 cv 5817 (KLF) (S.D.N.Y.).
14. My firm also has extensive experience in litigating other complex actions. See, e.g., State of Connecticut v. Philip Morris, Inc., et al., CV 96 0072414 S (Conn. Super. CLD at Waterbury); United States ex rel. Douglas D. Keeth v. United Technologies Corporation, Civ. No. H-89-323 (AHN) (D. Conn.). In State of Connecticut v. Philip Morris, my firm served as private lead counsel for the State of Connecticut in the State’s sovereign enforcement action against the tobacco industry, a case involving substantial CUTPA claims for relief. An independent panel of three former attorneys general concluded that the contribution of Connecticut's legal team to the national settlement was among the top five of the 57 states and other entities participating in the nation-wide settlement. This determination resulted in an increase in Connecticut’s share of the national settlement by over $350,000,000. In United
7

Case 3:20-cv-00569-MPS Document 134-4 Filed 08/03/20 Page 9 of 9
States ex rel. Keeth, my firm represented the relator in a complex False Claims Action brought against United Technologies Corporation, resulting in a settlement of $150,000,000 on behalf of the United States Government, then the largest such recovery under the False Claims Act.
15. Based on the foregoing, we respectfully submit that my firm has the qualifications and experience to serve as Class Counsel in this action.2
I declare pursuant to 28 U.S.C. § 1746, under penalty of perjury, that the foregoing is true and correct.
Executed on August 3, 2020. /s/ David S. Golub DAVID S. GOLUB
2 To the extent that Rule 23(g)(1)(iv) requires the Court to make findings concerning the “resources that counsel will commit to representing the class, my firm has specifically agreed to assume responsibility for the litigation expenses associated with this litigation, including expert fees, deposition and transcripts fees, and discovery document-related expenses. In the event the Court certifies the proposed Class and approves the fairness of the proposed settlement, my firm remains committed to defraying the costs associated with the administration of the settlement.
8

Case 3:20-cv-00569-MPS Document 134-5 Filed 08/03/20 Page 1 of 4
EXHIBIT 5

Case 3:20-cv-00569-MPS Document 134-5 Filed 08/03/20 Page 2 of 4

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on :

behalf of all others similarly situated,

:

:

Petitioner,

:

:

v.

:

:

DIANE EASTER, Warden of Federal

:

Correctional Institution at Danbury

:

in her official capacity

:

:

Respondent.

:

Civ. No. 3:20 cv 569 (MPS) AUGUST 3, 2020

DECLARATION OF ALEXANDRA HARRINGTON I, Alexandra Harrington, hereby declare pursuant to 28 U.S.C. § 1746:
1. I am an Associate Professor of Law at the University at Buffalo School of Law and Director of the Criminal Justice Advocacy Clinic. I serve as counsel to the Petitioner in this case.
2. I make this declaration in support of Petitioner’s motion for class certification, consented to by Respondent’s counsel. This declaration is based on my personal knowledge.
3. As Director of the Criminal Justice Advocacy Clinic, I will represent clients and supervise students in their handling of criminal and post-conviction proceedings.
4. Prior to joining the University at Buffalo I was a Senior Liman Fellow in Residence at the Liman Center for Public Interest Law at Yale Law School.
5. At the Liman Center I supervised law students working on criminal justice reform projects. These projects included preparing testimony and recommendations for the U.S. Commission on Civil Rights at a briefing on Women in Prison, providing comments on proposed

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New York State regulations on the use of restrictive housing in prisons, and surveying the administrators of U.S. prisons and compiling a report on the national use of solitary confinement.
6. During my time at Yale Law School I also advised students working on resentencing cases, motions to correct an illegal sentence, sentence modifications, and parole hearings. I continued work started while a public defender on an appeal from the denial of a habeas corpus petition in a case involving a claim of actual innocence. I participated in the Criminal Justice Clinic at Yale Law School; students in the clinic represent defendants in criminal cases in New Haven. I also supervised in the Media Freedom & Information Access Clinic law students working on a project related to criminal system information access in Connecticut.
7. From January 2020 to the present I served as a member of the Subcommittee on Successive Petitions as part of the Connecticut Legislature’s Habeas Corpus Matters Task Force.
8. Before joining Yale Law School I was a Deputy Assistant Public Defender in the Connecticut Division of Public Defender Services. I worked in the Innocence Project / PostConviction Unit from 2014-2018. During my time in that office I represented clients in habeas corpus proceedings in state court, in appeals in the state appellate and supreme court, in motions to correct an illegal sentence, and in parole hearings before the Connecticut Board of Pardons and Paroles. I also second-chaired two felony trial cases from investigation through pre-trial (resolution post-jury selection and -motions but pre-trial) in the New Haven Judicial District. In addition to individual client representation, I also coordinated the division’s representation of individuals who were juveniles at the time of the crime and who had been sentenced to lengthy prison terms in adult court. This involved providing training, written samples, guides, and other resources to attorneys working on these cases.
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9. As part of this case and with co-counsel, I have communicated with hundreds of persons currently incarcerated at FCI Danbury, with several persons recently released from FCI Danbury, and with dozens of family members of people incarcerated at FCI Danbury. I have also communicated with dozens of attorneys representing individuals currently incarcerated at FCI Danbury. As part of this investigation, I have reviewed medical records, grievances, and other documents from individuals currently and recently incarcerated at FCI Danbury.
10. I accompanied Dr. Homer Venters, petitioner’s expert in the case, on an inspection of FCI Danbury on May 27, 2020. During the course of this inspection, Dr. Venters observed the conditions in medical, isolation, and housing facilities and spoke with a number of staff members and incarcerated people at FCI Danbury. He prepared an expert report based on his observations.
I declare that the foregoing is true and correct to the best of my knowledge.
______/s/__________ Alexandra Harrington Associate Professor of Law
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 Case 3:20-cv-00569-MPS Document 141 Filed 08/11/20 Page 1 of 8

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on behalf of all others similarly situated,
Petitioner, v.

No. 3:20-cv-00569 (MPS)

DIANE EASTER, Warden of Federal Correctional Institution at Danbury in her official capacity,

Respondent.

ORDER CERTIFYING CLASS FOR SETTLEMENT PURPOSES ONLY AND ORDERING NOTICE
On August 3, 2020, Petitioner filed a motion to certify a class for settlement purposes only, and to appoint class counsel and a class representative. ECF No. 133. On the same day, Petitioner filed a motion for an order of notice to the class. ECF No. 135. The Court held a telephonic status conference on August 5, 2020 to discuss both motions. As a result of that conference, the Government filed the “side letter,” ECF No. 138, and Petitioner filed a revised Notice in both English and Spanish, ECF No. 139, 139-1, 139-2. Respondent consents to both motions. ECF No. 133 at 1; ECF No. 135 at 1.
Having considered the motions and the supporting memoranda and materials filed therewith, the Settlement Agreement (ECF No. 134-1) and side letter (ECF No. 138-1), and the revised Notice (ECF No. 139), the Court certifies the proposed class for settlement purposes, grants the Motion for Order of Notice (ECF No. 135) by approving the revised Notice (ECF No. 139), and finds and orders as follows:
1. Pursuant to 28 U.S.C. § 2241, this Court has jurisdiction over the subject matter of
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this litigation and all related matters and all claims raised in this action and released in the Settlement Agreement. The Court also has personal jurisdiction over all parties and Class Members.
2. The Court finds that, under U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974), a multiparty proceeding analogous to a class action is appropriate here substantially for the reasons set forth in the Court’s Temporary Restraining Order (“TRO”). ECF No. 30 at 6365; see also ECF No. 134 at 7-9. In particular: (1) the issue of the constitutionality of the Warden’s implementation of her home confinement and compassionate release authority is plainly “applicable on behalf of the entire class” and is “uncluttered by subsidiary issues”; (2) the majority of the vulnerable inmates would be unlikely to have the benefit of counsel in pursuing individual habeas petitions absent a multi-party proceeding; and (3) multi-party treatment avoids the “considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue.” ECF No. 30 at 63-65 (citing Preiser, 506 F.2d at 1126). As a result, and acknowledging “that the precise provisions of Rule 23 do not apply to habeas corpus proceedings,” the Court finds that the class action procedures set forth in Fed. R. Civ. P. 23 provide an appropriate mode of procedure to resolve this multi-party habeas proceeding . See Preiser, 506 F.2d at 1125 (citing Harris v. Nelson, 394 U.S. 286, 294, 299 (1969) (confirming the power of the judiciary to fashion “appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage” under the All Writs Act, 28 U.S.C. § 1651 (1970))).
3. The Court finds that the requirements for class certification under Fed. R. Civ. P. 23(a) and 23(b)(2) are satisfied for settlement purposes only with respect to the following Class:
any person incarcerated at FCI Danbury anytime from the Effective Date of the parties’ Settlement Agreement, i.e., July 27, 2020, until the termination date of the Agreement,
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i.e., October 31, 2021, unless otherwise modified by the parties pursuant to the terms of the Agreement, who either (a) is a List One Inmate or List Two Inmate (as those terms are defined in the Settlement Agreement, ECF No. 134-1 at 3-4), or (b) possesses one or more underlying medical conditions which, according to current CDC guidance (i.e., the CDC guidance in effect at the time of the individual’s home confinement review), either (i) places that inmate at increased risk of severe illness from COVID-19 (“Tier 1 medical conditions”); or (ii) might place that inmate at an increased risk of severe illness from COVID-19 (“Tier 2 medical conditions”). 4. The Court finds that Rule 23(a)’s requirements of numerosity, commonality, typicality, and adequacy are met for substantially the reasons set forth in the TRO. ECF No. 30 at 65-66; see also ECF No. 134 at 9-14; Fed. R. Civ. P. 23(a)(1)-(4). The proposed class is so numerous that the joinder of all members is impracticable, given that at least 439 inmates at FCI Danbury have been identified as medically vulnerable within the meaning of the class definition set forth above. ECF No. 134 at 10; see also Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (holding that “numerosity is presumed at a level of 40 members”). When new admissions to FCI Danbury are accounted for, the class may exceed 600. ECF No. 134 at 10-11. The Court also finds that there are questions of law or fact that are common to the class, even under Preiser’s stringent standards. 506 F.2d at 1127. That is so because: (1) each class member is recognized as being a part of the high-risk group as to which a prompt and constitutionally adequate home confinement review is justified; and (2) the factual and legal questions regarding the Warden and Bureau of Prison’s (“BOP”) process for considering inmates for home confinement are common to the entire class. ECF No. 134 at 12-13. This is true even though members of the class may face varying levels of heightened risk of severe illness from COVID-19. The Court finds that Rule 23(a)(3)’s typicality requirement is met because “each class member’s claim arises from the same course of events [i.e., application of respondent’s home confinement review process], and each class member makes similar legal arguments to prove the defendant’s liability.” Cent. States SE. & SW. Areas Health and Welfare Fund v.
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Case 3:20-cv-00569-MPS Document 141 Filed 08/11/20 Page 4 of 8
Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 245 (2d Cir. 2007). The Court also finds that that the Plaintiff and Settlement Class Counsel will fairly and adequately protect the interests of the Class under Rule 23(a)(4). Because of his medical conditions (see ECF No. 134 at 14), Mr. Whitted is an appropriate and adequate class representative for the proposed class of medically vulnerable individuals. He has incentives to seek a home confinement review process that is speedy and fair and that best accounts for class members’ shared medical vulnerabilities to COVID-19 regardless of each member’s individual conditions. Further, class counsel are “qualified, experienced and able to conduct the litigation,” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000), and meet the requirements of Rule 23(g). See Declarations of Professor Sarah F. Russell, Professor Marisol Orihuela, David S. Golub, Esq. and Professor Alexandra Harrington (ECF No. 134-2, 134-3, 134-4, 134-5, respectively).
5. The Court finds that the proposed settlement class also satisfies the requirements of Rule 23(b)(2) in that Respondent “acted or refused to act on grounds that apply generally to the class” so that “a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (citing Fed. R. Civ. P. 23(b)(2))). Here, the Warden and BOP’s home confinement policies and procedures apply generally to the class, and the Court can provide relief to each class member through a single injunction or declaratory judgment. The relevant relief sought in the petition—bail or “enlargement” to home confinement (ECF No. 1 at 66)—and ultimately fashioned in the Settlement Agreement—expedited home confinement review based on the standards set forth in the TRO with additional procedural protections enumerated in the Settlement Agreement—is plainly susceptible of class-wide application because it establishes procedural protections and uniform review standards common to the class.
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6. The Court hereby appoints James Whitted as Settlement Class Representative for settlement purposes only.
7. The Court hereby appoints David S. Golub and Jonathan M. Levine of Silver, Golub & Teitell LLP, Sarah French Russell and Tessa Bialek of the Quinnipiac University School of Law Legal Clinic, Marisol Orihuela of the Jerome N. Frank Legal Services Organization, and Alexandra Harrington of the Criminal Justice Advocacy Clinic, University at Buffalo School of Law, as Settlement Class Counsel for settlement purposes only.
8. The Court finds that the parties have a made a sufficient showing to justify ordering notice under Rule 23(e)(1) because (1) the Court likely will be able to approve the proposed Settlement Agreement and (2) the proposed Settlement Class has been certified as of the entry of this Order. Subject to further review and a fairness hearing, the Court finds that it is likely to approve the proposed Settlement Agreement as fair, adequate, and reasonable. In particular, the Court finds that the settlement terms appear fair, adequate, and reasonable as to all class members, including the effectiveness of the proposed method of providing relief and processing class member claims, when balanced against the costs and risks of further litigation. The Court also finds that: (1) the class representatives and counsel appear to have adequately represented the class; (2) the proposed Settlement Agreement appears to treat class members equitably; and (3) the Settlement Agreement was reached after lengthy, intensive, arm’s length negotiations, including over 38 hours of mediation (ECF No. 99, 102, 109, 112, 115, 119, 120, 121, 123) presided over by United States Magistrate Judge Thomas O. Farrish.
9. The Court approves the form and content of the proposed Settlement Notice attached as exhibits to this order in English and Spanish.
10. The Court finds that the distribution of the Settlement Notice in the manner and
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form set forth in ECF No. 135 (as modified in ECF No. 139): (1) is the best practicable notice; (2) is reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the civil action and of their right to object to the proposed Settlement; and (3) is reasonable and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice. The Court directs Class Counsel to disseminate the Settlement Notice to the Class Members in accordance with its proposal in ECF Nos. 135 and 139.
11. The Settlement Notice shall be provided: (1) to all class members currently incarcerated at FCI Danbury by posting a copy of the notice in both English and Spanish in each residential unit of the facility and by disseminating the notice in both English and Spanish via the Corrlinks/Trulincs email system maintained by the Bureau of Prisons to provide authorized email to BOP prisoners; and (2) to all class members admitted to FCI Danbury in the future by providing a copy of the notice in the appropriate language to such class member upon admission.
12. Class members may mail an objection to the settlement to the Clerk of Court as instructed in the Settlement Notice. Objections may be submitted to the Court either by filing the objection on the docket or mailing the objection to the Clerk of Court, Abraham A. Ribicoff Federal Building, United States District Court, 450 Main Street Suite A012, Hartford, CT 06103, Attention: Danbury Settlement. Objections must be filed or received on or before September 4, 2020. Objectors should not send materials to the undersigned’s chambers.
13. Any Class Member who fails to submit timely written objections in the manner specified in this Order and in the Settlement Notice shall be deemed to have waived any objections and shall be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement. The Court will consider all timely filed objections, and no Class Member need participate in the Fairness Hearing to have his or her timely submitted objection considered by the
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Court. 14. Settlement Class Counsel shall file a motion to approve the settlement by
September 11, 2020. A Fairness Hearing, to be conducted entirely via video teleconference (or audio, for those who cannot participate by video), shall be held on September 18, 2020 at 10:00 a.m. to determine all necessary matters concerning the Settlement, including whether the proposed Settlement of the Civil Action on the terms and conditions provided for in the Settlement Agreement is fair, adequate and reasonable and should be finally approved by the Court.
15. Pending the Fairness Hearing, all proceedings in this action, other than proceedings necessary to carry out or enforce the terms and conditions of the Settlement Agreement and this Order, are stayed.
16. The Court orders the following schedule for further proceedings: a. Settlement Class Counsel shall distribute the Settlement Notice in both English and Spanish via the Corrlinks/Trulincs email system maintained by the Bureau of Prisons to Class Members within 3 days of the entry of this Order, i.e., by August 14, 2020. Within the same time frame, Settlement Class Counsel shall also arrange to disseminate notice as described in paragraph 11 of this Order. b. Objections must be mailed to the Court as provided in the Settlement Notice and received no later than 24 days after the entry of this Order, i.e., by September 4, 2020. c. Settlement Class Counsel shall file a motion to approve the Settlement and a declaration of compliance regarding completion of notice no later than 31 days after the entry of this Order, i.e., by September 11, 2020.
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d. The Final Approval Hearing will be held on September 18, 2020 at 10:00 a.m. via video teleconference (or by audio, for those who cannot join by video). The Court will post the Zoom video and audio access information to the docket after the entry of this Order.
17. Should the Court adjourn or continue the date of the Fairness Hearing or any other dates set forth above, it will do so without further notice to Class Members except on the Court’s docket available on PACER (http://ecf.ctd.uscourts.gov).
IT IS SO ORDERED.

Dated:

Hartford, Connecticut August 11, 2020

/s/ Michael P. Shea, U.S.D.J.

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED,

:

individually, and on behalf of all others

:

similarly situated,

:

:

Petitioner,

:

:

v.

:

:

:

D. EASTER, Warden of Federal Correctional :

Institution at Danbury, in her official capacity :

:

Respondent.

:

Case No. 3:20-cv-569 (MPS)

NOTICE TO THE CLASS OF SETTLEMENT AGREEMENT

This Notice is to inform you that there has been a Settlement Agreement resolving a class action habeas lawsuit on behalf of individuals incarcerated in the Federal Correctional Institution in Danbury, Connecticut (“FCI Danbury”) who are medically vulnerable to COVID-19 (the “Medically Vulnerable Class”). This Notice is also to give you an opportunity to comment on and/or object to the Settlement, and provide you with instructions on how, when, and where to mail your written comments and/or objections to it.

You are a Class Member if you are incarcerated at FCI Danbury and: • You have already been placed on a list of medically vulnerable people during the course of this lawsuit (a “List One” Inmate or a “List Two” Inmate, defined below); OR • You possess one or more medical conditions which, according to current United States Centers for Disease Control and Prevention (“CDC”) guidance, either (i) places you at increased risk of severe illness from COVID-19; or (ii) might place you at an increased risk of severe illness from COVID-19. See https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/index.html.

I. CASE BACKGROUND On April 27, 2020, several individuals imprisoned at FCI Danbury filed this action
against Diane Easter, in her official capacity as the Warden of FCI Danbury, challenging the conditions of confinement at FCI Danbury and the Bureau of Prisons’ (“BOP”) meas ures in response to the COVID-19 crisis. In the complaint, Petitioners alleged that the BOP had inadequate policies and procedures for managing the risk of COVID-19 infection at FCI Danbury in violation of the Eighth Amendment to the Constitution of the Un ited States, and challenged the BOP’s alleged failure to release medically vulnerable individuals from the facility during the pandemic. Respondent Warden Easter and the BOP have denied the allegations. This is not a money damages case. Rather, the lawsuit sought non-monetary relief in the form of changes to the conditions of confinement at FCI Danbury and the release of individuals who are

Case 3:20-cv-00569-MPS Document 141-1 Filed 08/11/20 Page 2 of 5
medically vulnerable to COVID-19. The Petitioners are represented by the law firm of Silver Golub & Teitell LLP, the Legal Clinic at Quinnipiac University School of Law, the Jerome N. Frank Legal Services Organization at Yale Law School, and the Criminal Justice Advocacy Clinic at the University at Buffalo School of Law (collectively, “Petitioners’ lawyers”).
The District Court overseeing this case issued a Tempo rary Restraining Order (TRO) on May 12, 2020 that ordered Warden Easter to identify medically vulnerable individuals and set forth standards for determining those individuals’ suitability for home confinement.
On July 27, 2020, the parties reached a Settlement Agreement that resolves this lawsuit, subject to final approval by the Court. The Settlement Agreement applies to those individuals incarcerated at FCI Danbury who are medically vulnerable to COVID-19 (meaning they are or might be at higher risk of severe illness or death from COVID-19 according to CDC guidance). Copies of the Settlement Agreement will be available with the case managers in each unit at the facility, or you may request one by writing to Petitioners’ lawyers (see details below).
In addition, the Government issued a letter filed on the docket (ECF No. 138 -1) stating its intention to take certain actions at FCI Danbury to meet the medical needs of inmates during the COVID-19 pandemic to mitigate and control the spread of the virus. This letter is not part of the parties’ Settlement Agreement (ECF No. 134-1) and does not create any enforceable rights.
If you are part of the Medically Vulnerable Class as defined above, you have a right to comment and/or object to the Settlement Agreement.
II. THE SETTLEMENT AGREEMENT
A. Terms of the Settlement Agreement The main terms of the Agreement are:
Identifying and Reviewing Members of the Medically Vulnerable Class for Home Confinement Who Have Not Previously Been Identified for Home Confinement Review
1. Respondent and BOP agree to recognize individuals as part of the Medically Vulnerable Class as follows: Individuals at FCI Danbury who believe they are medically vulnerable as defined by current CDC guidance can sign an Authorization Form permitting BOP to give their medical records to Petitioners’ lawyers. Petitioners’ lawyers will propose to BOP those individuals they believe are part of the Medically Vulnerable Class if medical records confirm a condition listed by the CDC. If you already signed an Authorization Form in early June giving Petitioners’ lawyers access to your medical records you do not need to sign another form. Individuals who have been at FCI Danbury for less than two years may a lso submit outside medical records to substantiate a claim that they are medically vulnerable.
2. Medically vulnerable individuals will be entitled to expedited consideration for suitability for home confinement. Once someone is identified as medically vulnerable, a medical clinician will verify that all medical conditions are identified for the home confinement review. The review process will be conducted under policies set forth by the BOP and the Attorney General
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and the standards of the Court’s May 12 TRO, which include speedy consideration for release to home confinement and substantial weight provided to each individual’s COVID -19 risk factors.
3. Members of the Medically Vulnerable Class who are denied home confinement at FCI Danbury will be reviewed for home confinement by the Home Confinement Committee (HCC), a committee within the Central Office of the BOP in Washington D.C. in accordance with the standards set forth in the Court’s May 12 TRO.
4. Respondent and BOP agree to complete home confinement review within a reasonable time, and will try to do so within 14 days from the time an individual is recognized as part of the Medically Vulnerable Class.
5. The home confinement review process will be subject to continued oversight from the lawyers and the Court. The lawyers will receive written explanations for the reasons for any denial. If the HCC relies on erroneous factual information or applies the wrong standards in denying home confinement, individuals may be entitled to re-review by the HCC. Individuals denied home confinement based on an unsuitable release plan or pending warrants, charges, or detainers will have the right to apply, on their own initiative, for a home confinement re -review if those issues are resolved. Such inmates shall be re-reviewed first by the institution, and, if denied again by the institution, then by the Home Confinement Committee.
6. The BOP will attempt to release those approved for home confinement within 14 days of the approval decision unless public safety or release plan issues make it unsafe to move the individual to home confinement within that 14-day period.
Previously Identified Medically Vulnerable Individuals
7. List One Inmates: On May 15, 2020, Warden Easter identified an initial group of individuals, whom the Settlement Agreement identifies as “List One Inmates.” Those individuals have already been reviewed for home confinement. Under the Settlement Agreement, the BOP agrees to re-review 54 of these List One Inmates for home confinement under the TRO standards and terms of the Settlement Agreement. Petitioners’ lawyers identified these individuals because Petitioners’ lawyers contend there were significant and material errors in the previous review: without conceding error, the BOP has agreed to re-review them. All List One Inmates are listed on Exhibit A of the Settlement Agreement, and the 54 individuals who will be re -reviewed are listed on Exhibit B. The exhibits include the initials of each individual and the first three digits of their BOP register numbers. These lists are attached to the Settlement Agreement and you can view the lists in your case manager’s office. You may also contact Petitioners’ lawyers to find out if you are on these lists.
8. List Two Inmates: Warden Easter identified an additional group of individuals on June 3, 2020, and several more individuals were later added to this list by agreement between the parties. The Settlement Agreement identifies this group of individuals as “List Two Inmates.” All List Two Inmates are listed on Exhibit A of the Settlement Agreement. Respondent and BOP have begun reviewing List Two Inmates for home confinement. Respondent agrees to have all List Two Inmates, to the extent she has not done so alre ady, reviewed for home confinement at FCI
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Danbury. All List Two Inmates who are not approved for home confinement at FCI Danbury will be reviewed for home confinement by the HCC. These reviews are subject to oversight from the lawyers and the Court for compliance with the TRO and the Settlement Agreement.
B. Releases of Claims If you are a member of the Medically Vulnerable Class, you will not be able to pursue any individual lawsuit challenging BOP’s home confinement decision made during the duration of the agreement (currently until October 31, 2021). Any challenge to BOP’s decision to deny you home confinement must be made under the terms and procedures set forth in the Settlement Agreement. In addition, you will not be able to pursue any action seeking non -monetary relief for any acts or omissions regarding the BOP’s response to the COVID-19 pandemic prior to July 27, 2020.
However, the Settlement Agreement does not affect your ability to pursue any claims for money damages that you may have against the BOP. The Settlement Agreement also does not prevent any claims (other than those challenging BOP’s home confinement decisions) based on conditions at FCI Danbury after July 27, 2020. Finally, the Settlement Agreement does not affect your ability to seek a sentence reduction, typically called a compassionate release motion, pursuant to 18 U.S.C. § 3582.
C. Impact on Individuals Who Are Not Medically Vulnerable If you are incarcerated at FCI Danbury and do not have a medical condition that places you or might place you at an increased risk of severe illness from COVID-19 as defined by the CDC, you are not a party to the Settlement Agreement. While the Settlement Agreement does not afford any protections to you, it also does not waive any of your rights or prevent you from pursuing any claims you may have against the BOP. If, at some point during the effective period of the Settlement Agreement, you are diagnosed with a condition that makes you medically vulnerable to COVID-19 as defined in the Agreement, you will become a member of the Medically Vulnerable Class and eligible for home confinement review under the terms set forth in the Settlement Agreement. As a class member, you will be subject to the “Release of Claims” described in Section B above.
III. PURPOSES OF THIS NOTICE AND NOTICE OF FAIRNESS HEARING
The Settlement Agreement is under review by the Court, and it will not take effect unless and until it is approved by the Court. This Notice is not intended to be, and should not be construed as, an expression of any opinion by the Court with respect to the truth of the allegations in the litigation or the merits of the claims or defenses asserted. This Notice is sent to advise you of this action and proposed settlement and of your rights with respect to this action.
If you wish to submit any objections to or comments in support of the Settlement Agreement, you should submit an explanation in writing why you do or do not believe that the Settlement Agreement is fair, reasonable, and adequate. The Court will consider any objections or comments you may have regarding the Settlement Agreement, provided they are received by September 4, 2020.
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All written objections to the pending Settlement Agreement must be mailed to: United States District Court 450 Main Street Hartford, CT 06103 Attention: Danbury Settlement A hearing, which may be conducted by teleconference or video conference, will be held at the discretion of the Court, on September 18, 2020 at 10:00 a.m. at which time the Court will consider the fairness of the Settlement Agreement and whether to approve it. Your objection will only be considered if it is in writing, and is received on or before September 4, 2020. Your personal presence in court will not be required, and no testimony will be taken. If you want to comment and/or object, it is important that you do so in writing and that you send your written comments or objections sufficiently in advance of the deadline. Any comments/ objections received after September 4, 2020, will not be considered. FOR FURTHER INFORMATION: You should read the entire Settlement Agreement to understand it fully. Copies of the Agreement may be obtained: (1) by requesting a copy of the Settlement Agreement from your Case Manager; (2) online at http://www.danburylawsuit.com/agreement.pdf. or (3) by contacting Petitioners’ lawyers by email at lawyers@danburylawsuit.com, or by regular mail at: Silver Golub & Teitell, LLP Attention: Danbury Lawsuit 184 Atlantic Street Stamford, CT 06901 PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THIS SETTLEMENT.
APPROVED AND SO ORDERED. Dated at Hartford, CT this 11th day of August, 2020
/s/ Michael P. Shea, U.S.D.J.
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 Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 1 of 52

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on :

behalf of all others similarly situated,

:

:

Petitioner, :

v.

:

:

DIANE EASTER, Warden of Federal

:

Correctional Institution at Danbury in her :

official capacity,

:

:

Respondent. :

No. 3:20-cv-00569 (MPS) SEPTEMBER 11, 2020

MEMORANDUM IN SUPPORT OF MOTION FOR APPROVAL OF SETTLEMENT

David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Telephone: (203) 325-4491 Email: dgolub@sgtlaw.com
jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek, ct30582 Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Telephone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu
tessa.bialek@quinnpiac.edu

Marisol Orihuela, ct30543 Zal K. Shroff, Cooperating Counsel** Ariadne Ellsworth, Law Student Intern* Alexandra Gonzalez, Law Student Intern* Alexander Nocks, Law Student Intern* Phoenix Rice-Johnson, Law Student Intern* Jerome N. Frank, Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Telephone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org
Alexandra Harrington Criminal Justice Advocacy Clinic University at Buffalo School of Law The State University of New York Telephone: (716) 984-2453 Email: aharr@buffalo.edu

Counsel for the Petitioner James Whitted
* Motion for law student appearance forthcoming ** Application for admission forthcoming

Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 2 of 52
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......... . ................................... . ...... iii INTRODUCTION ..... . . .. . .. .. . ..... . .. .. ............ . .. .. ................... 1 FACTUAL BACKGROUND . . ........ ............... . .. . ....................... 4
A. Procedural History .. . .. .... .. .. . ....... .. ....... . .. . .. . ............ 4 Multi-Party Petition ........ . ..... ... .. .... . ........... . ....... .. . . 4 Temporary Restraining Order and Identification ofMedically Vulnerable Individuals ... ..... .. . ........................ . ......... . 6 TRO-imposed Home Confinement Review Process ..................... ... 9 Discovery and Settlement Negotiations . . .................. . .... . ...... 10
B. The Proposed Settlement . . ......... . .. .. . ...... .. . ................ . 11 Identification ofNew Class Members .............. . ........... .. ..... 12 Expedited Home Confinement Review ...... . ........... ..... . ........ 13 Reconsideration by HCC ofSome Class Members .. .. .. ... ... ........... 14 Reconsideration based on Resolution ofRelease Plan or Pending Charges Issues . . ............... . ........... ... ........ ... . 14 Preservation ofFuture Injunctive Relief and Damages Claims .... .... ... .. 15
C. Notice to the Class ................................................ 15 LEGAL STANDARD FOR ASSESSING PROPOSED CLASS SETTLEMENTS . . ........ 16 ARGUMENT .. .................. ..... . ......... . . . . . .. ............. .... ..... 17 I. The Lengthy Court-Supervised Negotiation that Resulted in the Settlement was
Procedurally Fair .... . . ............................. . .......... . ........ 17 II. The Settlement Agreement is Substantively Fair, Reasonable, and Adequate ........ 23

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A. The Proposed Settlement Provides Significant Benefits to the Class .. . ...... 24 1. Identification of New Class Members ..... .. .......... . . . .. . .. ..... 25 2. Expedited Home Confinement Review Pursuant to the TRO Standards . ... 25 3. Re-Review and Error Correction ... ... . . . ......................... 26 4. Reconsideration based on Changed Circumstances ...... . ....... . .. . .. 27
B. The Relief Provided to the Class Is Clearly Adequate in Light of the Costs, Risks and Delay of Trial and Appeal ... . .. ..... . .... . .... . . 27 1. The Complexity of Continued Litigation and the Benefit of Avoiding Delay . .. . . .. .. ..... . .. . .. . ... . .. . . . ... . ... . . . .. . ..... 27 2. The Risks to Obtaining Relief . . . .. . ........... .. ........... . .. . ... 29
C. The Settlement Treats Class Members Equitably Relative to Each Other . . .. .. 32 D. The Objections Raise Understandable Concerns but Do Not Warrant
Rejection of the Settlement . .. .. . . . ... . .. . . . .... ... . . . .. . ........... 34 1. Objections to Conditions of Confinement During the COVID-19
Pandemic and Absence of Enforceable Conditions-Related Terms in the Agreement .. .... . ........... . . . ...... .... . .. . .... . .. . ... . 34 2. Objections to the Settlement for Not Reaching Non-Class Members ... . . . 36 3 . Objections Discussing Individual Cases for Home Confinement Release ... 37 4. Objections to the Home Confinement Review Process ...... . .. .. .... . . 38 CONCLUSION .............. . .... ... .. . ...... . . . .......... . .. . .... . . ........ 40
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TABLE OF AUTHORITIES
Anglim v Xerox Corporation, Civ. No. B-83-251 (EBB) (D. Conn.) . . .. . .. .. . ... .......... . ............ . . . 18
Aramburu v. Healthcare Financial Services, Inc., No. 02-CV-6535,2009 WL 1086938 (E.D.N.Y. Apr. 22, 2009) .................. 22
Austin v. Pa. Dep 't ofCorr., 876 F. Supp. 1437 (E.D. Pa. 1995) ..... . ...... . . . .............. . .... . ..... . 38
Banks v. Booth, No. 20-849 (CKK), 2020 WL 3303006 (D.D.C. June 18, 2020) . . ............. . ... 30
Bardo v. Wright, No. 3:17 CV 1430(JBA), 2019 WL 5864820 (D. Conn. Nov. 8, 2019) ......... . ... 19
Barnes v. Ahlman, No. 20A19, _ S.Ct. _ , 2020 WL4499350 (Aug. 5, 2020) ........ . ........... 30
Batalla-Vidal v. Wolf, 291 F.3d 260 (E.D.N.Y 2018), 18-845 (2d. Cir.), aff'd in part and rev'd in part sub. nom. Department of Homeland Security v. Regents ofthe University of California, 140 S.Ct. 1891 (2020) .. . ............... . . ................... . . 19
Berni v. Barilla G. e R. Fratelli, S.pA., 332F.R.D.14(E.D.N.Y.2019) ... . ........ . .. . ..... .. . . ..... . ..... . .... 17, 23
Brodeur v. Champion, No.3:17 CV 1738 (RMS) (D. Conn.) . ............... . ........... . ... . ...... 19
Campbell, et al v. Moniz, CV 20-10697 PBS (D. Mass) ............ . ................ . ..... . .......... 19
Carson v. American Brands, Inc. , 450 U.S. 79 (1981) . . ... . ........ . ................ . .......... . ..... . ..... 31
Chatelain v. Prudential-Bache Sec., Inc., 805 F. Supp. 209 (S.D.N.Y. 1992) . ... . .... . ..... . ........... . ..... . .. 19, 22,3 1
Ill

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Christiansen v. Chesebrough Pond's, Inc ., No. 592 CV 727 (AHN) (D. Conn.) . .... . .... . ...... . ...................... 18
Chunn v. Edge, No. 20-cv-1590 (RPK) (RLM) , 2020 WL 3055669 (E.D.N .Y June 9 , 2020) .... ... . . 30
City ofDetroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir.2000) ............. . .. . .. . ... 17,23
Clark v. Duke University, 2019 WL 2588029 (M.D. N.C. 2019) ....................................... 33
Collins v. Olin Corp., No. 3:03-cv- 945 (CFD), 2010 WL 1677764 (D. Conn. April21, 2010) ......... . . . 40
County ofSuffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir. 1990) ..................... . .... . ......... . . . .. . .... 40
Criswell v. Boudreaux, No. 1:20-cv-01048-DAD-SAB, 2020 WL 5235675 (E.D. Cal. Sept. 2 , 2020) . . . . .... 30
Decoteau v. Raemisch, No. 13- cv- 3399-WJM-KMT, 2016 WL 8416757 (D. Colo. July 6, 2016) .......... 39
Diaz v.Cook, No. 3:20 CV 653 KAD (D. Conn) ..................................... . .... 19
Diglio v. Nationwide Mutual Insurance Company, No. UWY-CV-00-0161135 (X06) (Conn. Super. CLD at Waterbury) .... . ......... 18
Fernandez-Rodriguez v. Licon-Vitale , No. 20 Civ. 3315 (ER), 2020 WL 3618941 (S.D.N.Y. July 2, 2020) ...... . ..... ... 30
Ferrerya v. Decker, . No. 20 Civ. 3170 (AT), 2020 WL 1989417 (S.D.N.Y. Apr. 27, 2020) ........... 30, 31
Franco-Gonzalez v. Holder , CV 10-02211 DMG (C.D. Cal) ....... . ........ . ..... .. ............. .. ..... 19
Forde v. Baird, 720 F. Supp. 2d 170 (D. Conn. 2010) .. . .. .. ................... . . .. ......... 19
IV

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Goode v. Blue, No. 3:10 CV 135 (MRK) (D. Conn.) ..... ....... ....... ...... ..... . ......... 19
Gould v . Alleco, Inc., 883 F.2d 281 (4th Cir. 1989) ..... . ................ . . . . . ... .. ........ . .. . .. 34
Grant v. Bethlehem Steel Corp., 823 F.2d 20 (2d Cir. 1987) ............... . . .. .......... . ... . .............. 40
Guippone v. BH S&B Holdings LLC, No. 09 Civ. 01029 (CM), 2016 WL 5811888 (S.D.N.Y . Sept. 23, 2016) . ........... 29
Heidgerd v . Olin Corporation, Civ. No. N-86-51 (TFGD) (D. Conn.), affd, 906 F.2d 903 (2d Cir. 1990) ... . .. .. ... 18
Hurdle v. Cook, No. 3:20 CV 605 (KAD) (D. Conn) . . .. . .. . .................. .. . ..... .... . 19
llina v. Zickefoose, 591 F. Supp. 2d 145 (D. Conn. 2008) . . .. . .. . .... .. .... ........... .. .. . . .... 19
In re Austrian & German Bank Holocaust Litig ., 80 F. Supp. 2d 164 (S .D.N.Y. 2000), aff'd sub nom. D'Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001) .. ..... 20, 23, 31
In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436 (S.D.N.Y . 2004) ... . .. .......... .. .... .. . ......... 16, 19, 20,28
In re Luxottica Group S.pA. Sec . Litig. , 233 F.R.D. 306 (E.D.N.Y. 2006) . ........................ ... ... . ..... . . .. .. 16
In re Merrill Lynch Tyco Research Securities Litigation, 249 F.R.D. 124 (S.D.N.Y. 2008) ....... .... ................... .... .. . . ..... 16
In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D. 57 (S.D.N.Y. 1993) ........... . .............. . . .. .. . .. . .. ... ... 31
In re NASDAQ Mkt.-Makers Antitrust Litig ., 187 F.R.D. 465 (S.D.N.Y. 1998) . . .. . . ........ .. .. .... . .. . . ..... .. .. . 18 , 22,31
In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 330 F.R.D. 11 (E.D.N.Y. 2019) ............... . ........... . ......... . ... 17,23
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In rePayment Card Interchange Fee and Merchant Discount Antitrust Litigation, No. 05-MD-1720 (MKB)(JO), 2019 WL6875422019 (E.D.N.Y. Dec. 16, 2019) . .... 32
In re Remeron Direct Purchaser Antitrust Litig. , No. Civ. 03-0085 FSH, 2005 WL 3008808 (D.N.J. Nov. 9, 2005) .. .. .. ... .. .. . ... 31
In re Sturm, Ruger, & Co., Inc. Sec. Litig. , No. 3:09CV1293 (VLB), 2012 WL 3589610 (D. Conn. Aug. 20, 2012) ......... 18,23
In re Sumitomo Copper Litig., 189 F.R.D. 274 (S.D.N.Y. 1999) ...... .. ... . .. . .......... .. ...... . ........ . 31
In re Veeco Instruments Inc. Securities Litigation, No. 05 MDL 01695(CM), 2007 WL 4115809 (S.D.N .Y. Nov. 7, 2007) ............ 29
Ingles v. Toro, 438 F. Supp. 2d 203 (S.D.N.Y. 2006) ........... . ........................ 22,23
Jane Doe v. Corrections, et. al, No. 3:14 CV 00469 (RNC) (D. Conn.) ...... . .............. . .... . .. . ........ 19
Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000) .. . .. ... . .... . ......... . ....... .. .......... 16,23
JSR v. Sessions, No. 3:18 CV 1110 (VAB) (D. Conn.) ..... ....... .. . ... .............. . .. . ... 19
Kemp-DeLisser v. Saint Francis Hosp. & Med. Ctr., 2016 WL 6542707 (D. Conn. Nov . 3, 2016) .. ...... ... .. . .. ... .. . ............ 24
Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., 140 S.Ct. 1589 (2020) ............. .. ... ..... . . ........ .... ....... . ...... 36
Malam v . Adducci , No. 20-10829, 2020 WL 4496597 (E.D. Mich. Aug. 4, 2020) .. . .. .. ............ . 30
Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001) ....................... . . ..... .. ............. . 28
Marisol A. v. Giuliani , 185 F.R.D. 152 (S.D.N .Y. 1999) ..................................... . .. 23,24
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Martens v. Smith Barney, Inc., 181 F.R.D. 243 (S.D.N.Y. 1998) ... . . .. ............. . ........... .. ......... 22
Martinez-Brooks v. Easter, No. 3:20 CV 00569 (MPS), 2020 WL 2405350 (D. Conn. May 12, 2020) . . .. . ...... .. .. . . .. ..... 28, 29,31, 36
Mays v. Dart, No. 20-1792,2020 WL 5361651 (7th Cir. Sept. 8, 2020) . ... . .................. . 30
Miles, et al v. Bell, Nos. B-79-137 (TFGD) & B-82-626 (TFGD) (D. Conn.) . ... . .... ..... .. ... ... . . 18
Milner v. Black, No. 3:16 CV 1621 (SRU) (D. Conn.) ......... . ............................ 19
Milner v. Mulligan, No. 3:16 CV 1857 (SRU) (D. Conn.) ...... . ...... . .................... .. ... 19
Oshonya Spencer, et al. v . Hartford Financial Services Group, Inc., No . 3:05 CV 1681 (JCH) (D. Conn.) . ... . .. ......... . .... . . . . ...... . ... . ... 18
Radcliffe v. Hernandez, 794 Fed. Appx. 605 (9th Cir. 2019) ......................................... 32
Reid v. Donelan , CV 13-30125 PBS (D. Mass), 19-787, 19-1900 (1st Cir.) ... . .. . . ...... .. . .. . ... 19
Rodriguez v. Progressive Northwestern Insurance Company, No. UWY CV-00-0160554 S (X06) (Conn. Super. CLD at Waterbury) ..... . ....... 18
Romero v. La Revise Assocs., L.L.C., 58 F. Supp.3d 411 (S.D.N .Y. 2014) ............ ...... .......... . ..... .. ..... 28
Savino v. Souza, No. 20-10617-WGY, 2020 WL 1703844 (D. Mass. Apr. 8, 2020) . ........ . .. ..... 30
Seth v. McDonough, No. 8:20-cv-01028-PX, 2020 WL 2571168 (D. Md . May 21, 2020) . . ... . ....... . . 30
State Employees Bargaining Agent Coalition et al. v. Rowland, et al., No. 3:03 CV 221 (AVC) (D. Conn.) ........................................ 18
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Stinson v. City ofNew York, 256 F. Supp. 3d 283 (S.D.N.Y. 2017) . .. ..... . ......... .... ... . . . . . . . . . . . ... 36
Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020) ..... . .... . ........................ . .... .. .. 30
Terwilliger v. Cook, No. 3:20 CV 540 (SRU) (D. Conn) ... . ................ .. . . .. . . . . . . . . . .. .. .. 19
Thiersaint v. DHS, CV 18-12406 DJC (D. Mass) ... . . . ... . . . .................. . . .. ... . .. ... .. . 19
Town ofNew Hartford et al. v. Connecticut Resources Recovery Authority, 291 Conn.433 (2009) ... . .... .. . .. .... . ....... . .... . . . ... . ... .. ......... 18
United States v. A/montes, No. 3:05 CR 58 (SRU) , 2020 WL 1812713 (D. Conn . Apr. 9, 2020) ..... . . . ...... . 19
U.S. ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974) ....... . . ........ .. ....... . ... . . . .. . .. . .. .... . 28
Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020) ... .. . .. . ..... . ... . . . ........... . ..... . . . . . . .. 30
Valenzuela Arias v. Decker, No. 20 Civ. 2802,2020 WL 2306565 (S.D.N.Y. May 8, 2020) . . .. . ... .. ... . .. . .. 30
W. v. City ofNew York, 2016 WL4367969 (S.D.N.Y. Aug. 12, 2016) . ........... . .. . .. . ..... . ........ 35
Wal-Mart Stores, Inc. v. Visa U.S A., Inc., 396 F.3d 96 (2d Cir. 2005) ......... .. . . .. . ..... .. . . .. . ...... . .. . .... 16, 18,23
Weinberger v. Kendrick, 698 F .2d 61 (2d Cir. 1982) ......... . . . ... . ... . . . . . ... . ... . ......... . .. . ... 19
Wilson v. Ponce, No. CV 20-4451-MWF (MRWx) , 2020 WL5118066 (C.D. Cal. July 14, 2020) ......................... . . ... ... .. . .. . .. . .. . .... 30
Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) ... . ..... .. .. . .. . . . ...... . ..... . ...... . .. . .... 30
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Federal Statutes and Rules of Civil Procedure 18 U.S.C. § 3582 ... . . . . . .. . . .. .. . .. . ..... . .. . ........ . ......... . ....... .. .. . . 27 Coronavirus Aid, Relief, and Economic Security (CARES) Act,
Pub. L. No. 116-136, § 12003(b)(2) (2020) ... . . . . . .. . ....................... 1, 5 Fed. R. Civ. P. 23(e) .. . .... . ..... . .. ... . . .... . ...... . . ....... . .............. 1, 16 Fed. R. Civ. P. 23(e)(2)(A) .... .. ...................... . ........ . .. . . .. .. .. . 16, 17 Fed. R. Civ. P. 23(e)(2)(B) ...... . .. . ... . ............... . ... . ....... .... .. . 16, 17,23 Fed. R. Civ. P. 23(e)(2)(C) . ........ . ........ . ... .. ....... . ... ... .. . ......... 16,23 Fed. R. Civ. P. 23(e)(2)(D) ... . ..... . . .. . .. . .. . ..... . .. . ..... . ........ . 16, 23, 32, 33
Other Authorities Ronald P. Sokol, Federal Habeas Corpus Practice,
20 Am. Jur. Trials 1 (2020) . . . .. . .. .. ...... . ........ . ..... . .. .. ........... 28 William H. Rubenstein,
5 Newberg on Class Actions§ 13.44 (5th ed . June 2020 Update) . . .. . .. . . . .. . .... 33 Increasing Use of Home Confinement at Institutions Most Affected
by COVID- 19 (Apr. 3, 2020), available at https://www .justice.gov/file/1266661/download . ........ . .. .. . . . .. ....... . . 1, 2, 5 Centers for Disease Control, Cornavirus Disease 2019, Yourt Health, People with Certain Medical Conditions https://www .cdc.gov/coronavirus/2019-ncov/ need-extra-precautions/people-with-medical-conditions.html . . .... . .. ...... . ..... 3 Federal Bureau of Prisons Population Statistics" (last updated Sept. 9, 2020), https://www .bop.gov/about/statistics/population statistics.jsp ........ .. .......... 12
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Petitioner James Whitted, through counsel, submits this Memorandum in support of his Motion for Approval of the Settlement Agreement (the “Settlement”) submitted on August 3, 2020 in this multi-party habeas action involving individuals who are or may in the future be confined at FCI Danbury. (ECF Nos. 134-1). On August 11, 2020, the Court certified the proposed class identified in the Settlement (the “Class”) for purposes of the Settlement, issued an Order of Notice to the Class, and appointed the undersigned as Class Counsel (ECF No. 141).
Applying the principles of Fed. R. Civ. Pro. 23(e) to this case, Class Counsel request that the Court grant approval of the Settlement. The Settlement is the product of a complex and extended set of negotiations and, in Class Counsel’s view, represents a unique and important landmark on behalf of incarcerated individuals in the custody of the federal Bureau of Prisons (BOP) in the COVID-19 era. Class Counsel believe that this litigation and the Settlement have succeeded in bringing to the fore and remedying the inadequacies, prior to the commencement of this lawsuit, of the Bureau of Prison’s home confinement release procedures. Building on the protections afforded by the Temporary Restraining Order (“TRO”) issued by this Court on May 12, 2020, the Settlement provides remedies to enable more individuals to be in safer conditions than before the litigation began. The parties seek this Court’s approval of the Settlement.
INTRODUCTION On March 27, 2020, with its enactment of the CARES Act, Congress gave the federal Bureau of Prisons (“BOP”) the authority to transfer any federal prisoner to home confinement provided that the Attorney General made a finding that “emergency conditions will materially affect the functioning of the Bureau.”1 Attorney General Barr made that finding on April 3, 2020, and singled out FCI Danbury along with two other prisons as the sites of the most severe COVID-19 outbreaks in the federal system.2 At that time, Attorney General Barr issued a directive to the BOP to “maximize” the use of
1 Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, § 12003(b)(2) (2020). 2 Memorandum from Attorney Gen. to Director of Bureau of Prisons, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020), available at https://www.justice.gov/file/1266661/download.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 12 of 52 home confinement and “immediately review all inmates who have COVID-19 risk factors” for potential placement in home confinement.
Yet a month later, the BOP had released only twenty-one individuals to home confinement from the three facilities at FCI Danbury, a federal prison complex in Danbury, Connecticut which includes a women’s low-security satellite (the “FSL”), a women’s minimum security facility (the “camp”), and a men’s low security prison (the “men’s facility”). FCI Danbury had put in place no system to prioritize consideration of the medically vulnerable for home confinement or to give weight to their COVID-19 risk factors in the decision. Moreover, officials were automatically denying release to individuals based on factors unrelated to public safety.
Petitioners Dianthe Martinez-Brooks, Rejeanne Collier, Jackie Madore and Kenneth Cassidy brought this lawsuit on April 27, 2020 to redress these problems and the lack of safety for those held in FCI Danbury. After the lawsuit began, and as this Court held a hearing on Petitioners’ Emergency Motion for a Temporary Restraining Order and Preliminary Injunction, held status conferences, issued rulings, encouraged the parties to work with the Magistrate Judge, and certified the settlement class, the BOP has identified as eligible for and released approximately 100 Class members from FCI Danbury to home confinement or halfway houses.3
The Settlement now before the Court is the result of intense efforts, through both litigation and negotiation, to vindicate the constitutional rights of the Class by ensuring that the BOP implements a meaningful home confinement review process to protect medically vulnerable people from unsafe incarceration due to the risks that COVID-19 poses to them. The Class is comprised of individuals who are incarcerated at any of the three facilities at FCI Danbury who are recognized as medically vulnerable, as well as all those later identified as having a medical condition that places them or may
3 Approximately 45 Class members have been released by other means including through compassionate release orders from their sentencing judges or by reaching the end of their sentences.
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place them at increased risk of severe illness from COVID-19 under guidance from the United States Centers for Disease Control and Prevention (“CDC”).4
This Settlement provides three principal benefits. First, the Settlement requires Respondent to adhere to the procedures and standards established by this Court in its TRO, which changed the method by which the BOP reviews people for home confinement due to the health risk imposed by COVID19, and sets out a procedure for Class Counsel to identify additional members of the Class, including requiring Respondent to facilitate that process by informing newly incarcerated individuals of the Settlement and their opportunity to have medical records reviewed by Class Counsel.
Second, the Settlement provides for expedited consideration for home confinement in compliance with the standards set forth by this Court in its TRO, which include, inter alia, that “substantial weight” be given to an individual’s COVID-19 risk factors in the home confinement determination. Those denied home confinement at FCI Danbury will be reviewed by the BOP’s Home Confinement Committee (“HCC”) in Washington, D.C. Denial decisions must be supported by a written explanation of factors relied upon to deny home confinement despite the danger posed by COVID-19 to the incarcerated individual.
Third, under the Settlement, this Court retains jurisdiction to oversee the process and enforce violations of the Settlement. The Court may, for example, require re-review if the HCC relies on erroneous factual information or fails to apply the proper standards.
Because of this litigation and the significant provisions in the Settlement that benefit the Class, this Settlement is fair, reasonable, and adequate as required by Rule 23. The Settlement affords the Class a meaningful home confinement review process without limiting their ability to pursue other
4 Under its updated guidance, the CDC distinguishes between conditions that are scientifically established to increase risk of severe illness from COVID-19 (designated as “Tier I medical conditions” in the Settlement) and those for which there is still only limited data but which, on the basis of current available science, the CDC believes might put individuals at increased risk of severe illness from COVID-19 (designated as “Tier II medical conditions”). The conditions in each category can be found on the CDC’s website: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/peoplewith-medical-conditions.html.
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forms of relief. For example, Class members may, consistent with this Settlement, pursue individual
actions for monetary damages against Respondent or her staff for FCI Danbury’s response to COVID-
19. Members of the Class are, further, not precluded from pursuing equitable relief in the future, should
it be needed to ensure adequate social distancing or other changes to the congregate housing conditions at FCI Danbury.5 In short, the Settlement substantially benefits the Class and, at the same time,
preserves the Class members’ future rights to seek relief from unsafe conditions at FCI Danbury. Class
Counsel therefore request that this Court conclude that the Settlement is fair, reasonable, and adequate
and grant it final approval.
FACTUAL BACKGROUND
A. Procedural History
Multi-Party Petition
On April 27, 2020, Dianthe Martinez-Brooks, Rejeanne Collier, Jackie Madore and Kenneth Cassidy6 brought this multi-party habeas action against Warden Diane Easter on behalf of a proposed
class of all individuals held at FCI Danbury. At the time the Petition was filed, there were 728 men at
the men’s facility, 165 women at the FSL, and 153 women at the camp. (ECF No. 1, ¶ 35).
Petitioners alleged that they were at imminent risk of contracting COVID-19 because of the
unsafe, congregate conditions in which prisoners were held. Petitioners also identified a subclass of
those who had medical conditions that the CDC said placed people at heightened risk of serious illness
or death if they contract COVID-19.
5 Because the Settlement does not resolve the claims of individuals outside of the Class, it does not prevent non-Class members incarcerated at FCI Danbury from bringing any claims they may have against the federal government or its officials. 6 This action was originally brought by the four above-referenced petitioners. Mr. Cassidy was released on May 13, 2020 after his sentencing judge granted his compassionate release motion. Dianthe Martinez-Brooks and Rejeanne Collier were released in June 2020 on home confinement pursuant to the home confinement process established by this Court’s TRO. Class Counsel filed voluntary dismissal of these three petitioners’ claims, and filed an Amended Petition pursuant to Rule 21 (ECF No. 111) naming Amanda Cooper and James Whitted (along with original petitioner Jackie Madore) as named class representatives. Since the filing of the Amended Petition, Ms. Madore and Ms. Cooper have been released from FCI Danbury and placed on home confinement (see ECF Nos. 130 and 131), leaving Mr. Whitted currently as the named class representative. This memorandum will use the plural term “Petitioners” in reference to allegations made or relief sought in prior pleadings.
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Petitioners alleged that because of the unsafe conditions at FCI Danbury and the resulting danger they faced of contracting COVID-19 while incarcerated at FCI Danbury, their confinement was unconstitutional in violation of their Eighth Amendment right against cruel and unusual punishments. At the time the lawsuit was filed, the COVID-19 outbreak was at its height in Fairfield County, where FCI Danbury is located, and in the communities nearby and across the state. The virus was rapidly spreading through FCI Danbury’s crowded dorms in March, with the first confirmed cases in the FSL and the men’s facility in late March. As of April 15, 2020, at least 44 prisoners and 39 staff members had tested positive for COVID-19, and one person had died. (ECF No. 1, ¶ 40). There was no facilitywide testing done at the facility before May, and thus these numbers likely vastly understated the outbreak. Indeed, of those tested at the facility in March and April, 79% were positive.7
As the Petition explained, on March 27, 2020, with the CARES Act, Congress gave the Bureau of Prisons the authority to transfer any federal prisoner to home confinement provided that the Attorney General made a finding that “emergency conditions will materially affect the functioning of the Bureau.” CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020). Attorney General Barr made that finding on April 3, 2020, naming FCI Danbury along with two other facilities as sites of “significant levels of infection” and urging BOP “to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.”8 In his April 3 memo, Attorney General Barr noted the BOP’s “profound obligation to protect the health and safety of all inmates,” and directed it to “immediately review all inmates who have COVID-19 risk factors, as established by the CDC,” to “immediately maximize appropriate transfers” to home confinement, and to “begin implementing this directive immediately.”9 However, despite the urgency expressed in the Attorney General’s directive and the severity of the outbreak at FCI Danbury, few from FCI Danbury had been
7 The high percentage of positive tests is apparent from the data contained in a May 5, 2020 declaration from Warden Easter. (See ECF No. 24-2, Ex. A ¶¶ 83-85). 8 Memorandum from Attorney Gen. to Director of Bureau of Prisons, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020), available at https://www.justice.gov/file/1266661/download. 9 Id. at 1-2.
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transferred to home confinement. The Petition and Petitioners’ Emergency Motion for Temporary Restraining Order and
Preliminary Injunction, filed on April 30, 2020, sought a two-part response to the COVID dangers facing the class of all prisoners and the subclass of medically vulnerable prisoners at FCI Danbury. (ECF Nos. 14, 15). First, Petitioners alleged that the BOP had failed to abide by the Attorney General’s directives and had not made full and sufficient use of its authority to transfer medically vulnerable individuals to home confinement to protect them against COVID-19 at FCI Danbury. To cure these failures, Petitioners sought orders requiring FCI Danbury to undertake the immediate transfer of medically vulnerable individuals to home confinement or other appropriate settings.
Second, Petitioners alleged that FCI Danbury had failed to implement the measures necessary to protect the entire prison population from COVID-19 infection. Petitioners further contended that FCI Danbury’s failure to respond to the COVID-19 pandemic had put Petitioners and putative class members at unacceptably heightened risk of injury and illness unrelated to COVID-19; breakdowns in the healthcare system at FCI Danbury resulted in prisoners with urgent health needs going without necessary treatment. With respect to these failures, Petitioners sought immediate implementation of the social distancing and hygiene measures essential to lowering the risk of disease and death. Petitioners also requested measures be taken to bring the system of healthcare delivery at Danbury up to the constitutional minima. Temporary Restraining Order and Identification of Medically Vulnerable Individuals
On May 12, 2020, after a hearing on petitioners’ Motion on May 6, 2020, this Court issued a TRO granting in part Petitioners’ request for provisional remedies.10 (ECF No. 30). This Court found that the facts regarding the BOP’s use of its home confinement authority were largely undisputed. As of May 5, only 21 people had been released on home confinement out of approximately 159 reviewed.11
10 The Court also denied Respondent’s Motion to Dismiss, which had been filed on May 5, 2020. 11 During the discovery process, FCI Danbury officials were unable to say how many of the 159 people reviewed were medically vulnerable, or to account for the identities of everyone reviewed prior to the issuance of the TRO. Discovery
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This Court held that those facts established that officials at FCI Danbury had made only limited use of
their home confinement authority and other tools at their disposal to protect incarcerated people during
the outbreak.
Accordingly, this Court entered an Order provisionally certifying the following class of
individuals who are medically vulnerable to COVID-19 in accordance with CDC guidelines:
All individuals in custody at FCI Danbury, while the threat of COVID-19 at the facility remains, who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or (h) serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.
(ECF No. 30 at 65-66 n.32).
The Court ordered expedited consideration of home confinement for all such medically
vulnerable class members and set forth standards for determining their suitability for home confinement
release. In its May 12 Order, the Court noted the main factual disputes between the parties regarding
what measures Respondent had undertaken and the efficacy of those measures in protecting
incarcerated individuals from a COVID-19 outbreak. The Court declined to issue a temporary
restraining order compelling FCI Danbury to implement other safety protocols. (ECF No. 30 at 60-62).
The Court scheduled an evidentiary hearing on Petitioners’ Motion for Preliminary Injunction for June
11 and 12, 2020. (Id. at 74).
revealed that on April 1, 2020 FCI Danbury received a list from BOP of 238 individuals with COVID-19 risk factors. However, it appears that the facility took no action with respect to this list until after the lawsuit was filed. Even then, there was no process put in place to ensure that everyone on the April 1, 2020 list was reviewed for home confinement.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 18 of 52 As a result of the TRO, the parties engaged in discussion on how to identify individuals imprisoned at FCI Danbury who were part of the Medically Vulnerable Class. Petitioners’ counsel, using the expert assistance of Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine board-certified in internal medicine and infectious diseases and addiction medicine, identified a set of ICD-9 and ICD-10 codes that represented medical conditions identified by the CDC as high-risk factors for severe illness from COVID-19. Respondent conducted a search of BOP medical records using those codes, and on May 15, 2020, as required by the TRO, Respondent filed an initial list identifying 314 inmates who were potential members of the Medically Vulnerable Class. (“List One Inmates”; see ECF No. 41). Subsequent to this initial search, Petitioners’ counsel, with the assistance of Dr. Meyer, met and conferred with Respondent’s counsel regarding conditions rendering individuals medically vulnerable that had been missed in the initial search and identified additional codes that more accurately captured the conditions that render someone medically vulnerable to COVID-19 in light of BOP’s method of medical coding. Respondent agreed to run a second search of BOP’s record systems, using a new set of ICD-9 and ICD-10 codes identified by Petitioners’ counsel with the assistance of Dr. Meyer. Counsel’s request resulted in BOP adding 111 individuals who were also potential members of the Medically Vulnerable Class.12 Subsequently, and again at Petitioners’ counsel’s request, Respondent agreed to add an additional 14 inmates in the second list of inmates whom it agreed to treat as members of the Medically Vulnerable Class. (“List Two Inmates”; see ECF No. 134-1, at 27-29).
12 Although Petitioners’ counsel and Respondent agreed on the codes Respondent would search, Petitioners’ counsel maintained that such a search, and any search reliant solely on ICD codes, would not identify all individuals who the CDC defines as medically vulnerable to COVID-19. With guidance from the Court, the parties put in place a system for Petitioners’ counsel to review medical records to identify additional class members. Notice was provided to all prisoners of the lawsuit, and prisoners were given the opportunity to sign authorization forms giving Petitioners’ counsel access to the records. (ECF No. 72).
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 19 of 52 TRO-imposed Home Confinement Review Process
Once individuals were identified, the TRO required Respondent to review the Medically Vulnerable Class for home confinement. On May 25, 2020, Respondent filed with the Court the results of its review of the List One Inmates. (ECF No. 59). After identifying errors, on May 28, 2020, this Court ordered re-review with input from a medical clinician of List One Inmates who had been denied, and specified that individuals meeting certain criteria be reviewed by the BOP’s Home Confinement Committee in Washington, D.C. (See ECF No. 68). The Court also directed the parties to try to reach an agreement about a process for generating a random sample of the materials reviewed by the Warden in making home confinement decisions to address “the Court’s need to better understand the home confinement review process undertaken by the Warden in response to the temporary restraining order.” (Id.) Finally, the Court observed that many who had been approved for home confinement had still not been released, and ordered release of those approved by June 4, 2020 unless the Respondent demonstrated “that public safety or medical considerations or the absence of any home in which to place the inmate would make it unsafe to move the inmate immediately to home confinement.” (Id.).
On May 29, 2020, the Court ordered that individuals approved for RRC (halfway house) placements who did not have a “High” PATTERN score or a violent or sexually-related offense of conviction be placed on home confinement unless the Respondent demonstrated “that public safety or medical considerations or the absence of any home in which to place the inmate would make it unsafe to move the inmate immediately to home confinement.” The Court stressed that “[t]he fact that a greater degree of supervision will be available at an RRC will not, by itself, be deemed sufficient to demonstrate that it is unsafe to move the inmate to home confinement.” (ECF No. 70).
On June 9, 2020, Respondent filed declarations with the Court regarding the re-reviews and actions it had taken following the May 28 and May 29 Orders. (ECF No. 90-96). However, Respondent did not file with the Court the worksheets, or documentation, that accompanied these re-reviews. During the course of settlement discussions, on June 25 and 26, Petitioners received the review
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worksheets for individuals who had been re-reviewed by the HCC following these Orders.13 Respondent did not complete its home confinement review of the List Two Inmates prior to the parties’ executing the Settlement currently before the Court. Discovery and Settlement Negotiations
After the TRO issued, the parties entered into discovery. Petitioners’ counsel reviewed approximately 20,000 pages of documents provided by Respondent in discovery, and responded to Respondent’s discovery requests. (See Declaration of Attorney Sarah Russell, attached as Exhibit A, ¶ 8). Counsel retained expert witnesses and developed expert evidence in support of Petitioners’ claims, conducted an inspection of the facility, reviewed competing expert reports regarding conditions at FCI Danbury and the BOP’s response to those conditions, took and defended multiple depositions, and undertook substantial preparation for the preliminary injunction hearing scheduled by the Court. (Id. ¶¶ 9-10, 13).
As the case progressed, Petitioners’ counsel spent countless hours communicating via email and telephone with men and women incarcerated in the three facilities at FCI Danbury, as well as with prisoners’ family members and lawyers. (Id. ¶¶ 3-4, 6). Counsel gathered information about the challenges prisoners faced in accessing health care at FCI Danbury, the experiences of those in isolation and quarantine, and the inability of prisoners to socially distance in their housing units. (Id. ¶ 6). Counsel have communicated with at least 400 prisoners at FCI Danbury—including in the FSL, the Camp, and the men’s prison—and with more than 150 lawyers and dozens of family members. (Id. ¶ 4). Counsel also reviewed home confinement worksheets, PATTERN scores, and medical records,
13 Following the Court’s May 28, 2020 order and between June 2 and June 9, the BOP conducted a review of some List One Inmates, but not all, with the input of a medical clinician. (ECF No. 90-1). Respondent then indicated that 30 were suitable for home confinement. (ECF No. 90-1, ¶ 8). However, this number included eight individuals who had already been approved for home confinement. The parties met and conferred over whether this re-review violated the May 28, 2020 order during the course of settlement proceedings, and Respondent agreed to undertake a re-review at FCI Danbury of those List One Inmates who had not been re-reviewed. Petitioners have not received documentation of these reviews but understand that none were granted home confinement upon re-review.
Following the May 29, 2020 bail order, Respondent reported, inter alia, that 4 individuals approved for halfway houses were denied home confinement “due to public safety considerations.” (ECF No. 95-1, ¶ 11).
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identifying, where possible, errors in home confinement reviews. (Id. ¶ 11). Counsel consulted with other lawyers litigating COVID-19 relating cases around the country, as well as leading prisoner rights and class action lawyers. (Id. ¶ 13).
Shortly before the preliminary injunction hearing was scheduled to begin, the parties entered into settlement discussions. These discussions commenced on June 10, 2020, on the eve of the scheduled preliminary injunction hearing. (ECF No. 87). During the course of the four weeks that followed, the parties met with Magistrate Judge Farrish on nine separate occasions to attempt to reach settlement; in addition, the parties had direct interactions, as they worked to find common ground. With the guidance and supervision of Judge Farrish, the parties’ counsel spent more than forty hours as they discussed, disputed, and deliberated over every detail of the Settlement. (ECF Nos. 99, 102, 109, 112, 115, 119, 120, 121, 123). During this time, counsel continued to prepare for a two-day preliminary injunction hearing, as it was not clear whether the discussions would result in a settlement. (See Ex. A, ¶ 13; ECF Nos. 87, 116). On July 27, 2020—six weeks after negotiations began—Petitioners and Respondent reached this Settlement. (ECF No. 128).
B. The Proposed Settlement This Settlement builds on the benefits obtained as a result of the Court’s Orders in this litigation on behalf of those imprisoned at FCI Danbury who are medically vulnerable as defined by the CDC. After this Court’s TRO, 439 individuals were identified as medically vulnerable and included on List One and List Two. (See ECF No. 134-1, at 21-29). Since then, 145 of these medically vulnerable individuals have been released by BOP to home confinement or halfway house placements, or through other means including compassionate release orders by sentencing judges or by reaching the end of their sentence.14 Despite new admissions at all three facilities, the overall population is down in each facility since when the lawsuit was filed: the FSL has dropped from 165 women to 123; the Camp from
14 From List One, 85 people have been released by BOP to home confinement or halfway house placements, with 35 released through other means. From List Two, 14 have been released to home confinement or halfway house placements, and 11 have been released through other means.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 22 of 52 153 women to 54, and the men’s facility from 728 men to 648.15
The Class now certified for purposes of settlement (ECF No. 141) is comprised of individuals incarcerated at FCI Danbury who have already been identified as medically vulnerable as well as all those who are later identified as having a medical condition that places them or may place them at increased risk of severe illness from COVID-19 under CDC guidance. The Settlement provides a process for identification of new Class members, expedited home confinement review pursuant to standards set forth in the TRO, reconsideration for some Class members, and preservation of certain claims for the Class.16 Identification of New Class Members
The Settlement sets out a procedure for Class Counsel to identify additional members of the Class and requires Respondent to facilitate that process by informing newly incarcerated individuals of the Settlement and of their opportunity to have medical records reviewed by Class Counsel. (ECF No. 134-1, ¶¶ 4-5). Specifically, Class Counsel, with the appropriate authorization, will review medical records of those incarcerated at FCI Danbury and identify those individuals believed to be part of the Class to Respondent. (Id.) Except in extraordinary circumstances, individuals who have been in BOP custody for two years or longer will be evaluated for qualifying conditions based exclusively on their BOP medical records, while individuals who have been incarcerated for fewer than two years may submit outside medical records. (ECF No. 134-1, ¶ 4(e)). Any disputes over whether a particular individual possesses the requisite medical conditions for membership in the Class is to be resolved by a physician detailed to BOP from the United States Public Health Service, Department of Health and Human Services. (Id. ¶ 4(c)).
15Compare ECF No. 1, ¶ 35, with BOP, “Population Statistics” (last updated Sept. 9, 2020), https://www.bop.gov/about/statistics/population_statistics.jsp. 16 Along with the Settlement, though not enforceable as such, Respondent also sent Class Counsel a letter dated July 24, 2020 providing assurances and commitments to improve processes for testing and screening individuals for COVID-19 symptoms at the facility and healthcare delivery at FCI Danbury. (ECF No. 138-1).
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Expedited Home Confinement Review The Settlement then sets forth a home confinement review process based on the standards and
criteria ordered by the Court in its TRO. The Settlement provides that all members of the Class identified in the future and all Class members on List Two are entitled to the Settlement’s home confinement review process.17 Each of these individuals is entitled to expedited home confinement review pursuant to the standards set forth in the Court’s TRO. (See ECF No. 134-1, ¶¶ 2,3,6, citing ECF No. 30). Specifically, each individual is entitled to a home confinement review that, inter alia: (1) assign(s) substantial weight . . . to the inmate’s risk factors for COVID-19; (2) sets forth in a Review Worksheet the factors considered in reaching a home confinement determination; (3) does not treat any particular consideration as an automatic disqualifier to home confinement; and (4) provides a written explanation of any factors relied upon in a determination to deny home confinement despite the danger to the incarcerated individual posed by the COVID-19 pandemic. (See ECF No. 30, at 33-34). A medical clinician must identify and list the individual’s COVID-19 risk factors for consideration in the home confinement review.
If the individual is denied home confinement by the Respondent, the Settlement provides that the decision will be reviewed by the BOP’s Home Confinement Committee (HCC) in Washington D.C. (ECF No. 134-1, ¶¶ 3, 6). A medical clinician must be a member of the HCC during each HCC review. (Id. ¶ 9). The HCC must assign substantial weight to each individual’s COVID-19 risk factors and must provide a written explanation for every denial that details the reasons why home confinement was denied in accordance with the standards set out in the Court’s TRO. (Id. ¶¶ 3, 6). The BOP will complete
17 Reviews of List Two inmates were underway during settlement negotiations. On August 26, 2020, the results of the reviews were produced to Petitioners’ counsel. Of the 125 individuals on List Two, 25 are no longer at FCI Danbury. Among those released, the review worksheets indicate that 6 were approved for home confinement, and 4 were approved for RRC placement. The remainder were released through means outside of this lawsuit including compassionate release orders from sentencing judges or by reaching the end of their sentence. Two people approved for home confinement and three approved for RRC placement have not yet been released.
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the home confinement review process within a reasonable time from the individual’s identification as medically vulnerable and shall endeavor to do so within 14 days. (Id. ¶ 6.)
If the home confinement decision relies on erroneous factual information or fails to apply the proper standards, the individual is entitled to re-review of the decision using the correct information and proper standards. Class Counsel will initiate and oversee the re-review process and, where necessary following meet and confer obligations, will present individualized home confinement reviews to this Court to enforce the terms of the Settlement. (See ¶¶ 12, 23). Reconsideration by HCC of Some Class Members
The Settlement also provides for reconsideration for home confinement by the HCC of a subset of Class members on List One who were previously reviewed for home confinement through this litigation and denied. (See id. ¶ 13; see also id. Ex. B). Class counsel identified 54 individuals from List One who were similarly situated to individuals who had been granted home confinement, and who had significant and material errors in the previous review. The Settlement provides for reconsideration by the HCC of these 54 individuals under the standards of the TRO and the terms of the Settlement. (Id. ¶ 13; Ex. B). 18 Reconsideration based on Resolution of Release Plan or Pending Charges Issues
Furthermore, Class members who are denied home confinement by the HCC based on unsuitable release plans or pending warrants, charges, or detainers are entitled to reconsideration for home confinement by FCI Danbury if those issues are resolved. (Id. ¶ 14).19 If subsequently denied by
18 Respondent agreed to have the HCC reconsider these reviews under the Settlement without conceding any error in the previous reviews. The remaining individuals on List One who were denied home confinement are not entitled to automatic reconsideration for home confinement pursuant to the Settlement. However, to the extent that the information on any individual’s original home confinement review worksheet has changed based on a material change in circumstances or new information, the Settlement allows the person to submit documentation to be included in the his or her Central File and to seek re-review of the home confinement decision. Respondent has agreed that this provision applies to the entire Class. 19 Paragraph 14 of the Settlement applies by its terms to all future members of the Class, all Class members on List Two, and all List One Class members who were denied home confinement by the Home Confinement Committee. The remaining List One Class members can seek reconsideration pursuant to the Settlement’s allowance for a request for re-review in the event of a material change in circumstance or new information.
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the institution, these individuals are entitled to another review by the HCC. These reviews too are governed by the standards of the TRO and the terms of the Settlement. Preservation of Future Injunctive Relief and Damages Claims
In addition to the benefits the Settlement provides to Class members, it also preserves their ability to pursue other claims they may have against Respondent or BOP. Under the Settlement, Class members retain the right to pursue damages relief for Respondent’s responses to the COVID-19 pandemic and retain the right to pursue injunctive relief against Respondent to provide adequate social distancing and other changes to the congregate housing conditions at FCI Danbury, for events and circumstances arising after July 27, 2020. (Id. ¶ 16). Class members also have the ability to continue pursuing sentence reduction/compassionate release motions filed pursuant to 18 U.S.C. § 3582. (Id.). Thus, the Settlement requires the Class to release Respondent only from any equitable relief claims arising out of the home confinement review process or Respondent’s handling of the COVID-19 pandemic prior to July 27, 2020. (Id.). As such, the Settlement leaves intact any claim for recompense for prior constitutional harms and ensures that Class members (as well as all other individuals confined at FCI Danbury who are not Class members) are empowered to vindicate their right to constitutional conditions of confinement in the here and now as the pandemic crisis continues.
C. Notice to the Class. Pursuant to this Court’s order of August 11, 2020 (ECF No. 141), Counsel worked with Respondent to distribute notice within FCI Danbury as directed by the Court.20 Respondent has certified its compliance with distribution of notice throughout the facility (ECF No. 142). Class counsel also communicated with more than 300 individuals at FCI Danbury with whom counsel has a connection via the Corrlinks/Trulincs system. (Ex. A, ¶ 15). Counsel responded to questions, mailed
20 The Court ordered Class Counsel to disseminate the Notice to the Class Members via Corrlinks/Trulincs. (ECF No. 141 at ¶ 10). Because Class Counsel cannot on their own disseminate a document to all individuals incarcerated at FCI Danbury (the potential Class members), Class Counsel caused the Notice to be disseminated via Corrlinks/Trulincs and paper posting via Respondent and BOP staff at FCI Danbury.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 26 of 52 copies of the Settlement to those who requested it, and provided reminders about the deadline and manner of filing objections. (Id.). Overall, there have been more than 540 contacts to Class Counsel through the Corrlinks/Trulincs prison email system since the notice was published (id.), and additional contacts to Class Counsel by telephone or by emails from attorneys or family members of prisoners.
LEGAL STANDARD FOR ASSESSING PROPOSED CLASS SETTLEMENTS Rule 23(e) of the Federal Rules of Civil Procedure provides that a class action may not be settled without the approval of the Court. The determination whether to approve a settlement is committed to the Court’s discretion. Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir. 2000); In re Merrill Lynch Tyco Research Securities Litigation, 249 F.R.D. 124, 132 (S.D.N.Y. 2008). As a matter of public policy, federal courts favor the settlement of disputed claims, particularly in complex class actions. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (“We are mindful of the ‘strong judicial policy in favor of settlements, particularly in the class action context’”) (citation omitted); In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 455 (S.D.N.Y. 2004) (“[F]ederal courts favor settlement, especially in complex and large-scale disputes, so as to encourage compromise and conserve judicial and private resources. Accordingly, this Court will take into consideration such public policy concerns in exercising its discretion”) (citations omitted). When reviewing a proposed settlement of a class action, the Court must determine whether the proposed settlement is “fair, reasonable and adequate.” In re Luxottica Group S.p.A. Sec. Litig., 233 F.R.D. 306, 310 (E.D.N.Y. 2006). The Court must examine both the negotiating process leading to the settlement (procedural fairness) and the settlement’s substantive terms (substantive fairness). See Fed. R. Civ. P. 23(e); WalMart, 396 F.3d at 116; In re Merrill Lynch Tyco, 249 F.R.D. at 133. Rule 23 was amended in 2018 to provide additional guidance and make uniform the criteria to consider when class action settlements are proposed. See Fed. R. Civ. P. 23, 2018 Advisory Committee Notes. The four key factors to consider are whether: (A) the class representative and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s-length; (C) the relief
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provided to the class is adequate; and (D) the proposal treats class members equitably relative to one another. Fed. R. Civ. P. 23(e)(2)(A)-(D).
Prior to the 2018 amendments, courts in this Circuit determining the fairness of a proposed class action settlement applied the Grinnell factors drawn from the Second Circuit’s 1974 opinion in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000):
(1) the complexity, expense and likely duration of the litigation, (2) the reaction of the class to the settlement, (3) the stage of the proceedings and the amount of discovery completed, (4) the risks of establishing liability, (5) the risks of establishing damages, (6) the risks of maintaining the class action through the trial, (7) the ability of the defendants to withstand a greater judgment, (8) the range of reasonableness of the settlement fund in light of the best possible recovery, [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id. at 463. The 2018 amendments elaborate upon, rather than displace, the Grinnell factors. In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 330 F.R.D. 11, 29 (E.D.N.Y. 2019), citing Fed. R. Civ. P. 23, 2018 Advisory Committee Notes (“The goal of this amendment is not to displace any factor, but rather to focus the court and the lawyers on the core concerns of procedure and substance that should guide the decision whether to approve the proposal.”). Accordingly, the court considers both sets of factors in its analysis of whether the proposed settlement is fair, reasonable, and adequate, and whether to grant final approval. In re Payment Card Interchange Fee, 330 F.R.D. at 29; Berni v. Barilla G. e R. Fratelli, S.p.A., 332 F.R.D. 14, 33 (E.D.N.Y. 2019) (“Rule 23(e)(2)(C), however, requires the Court to consider specifically formulated subfactors that vary, albeit minimally, from the Grinnell factors”).
ARGUMENT I. THE LENGTHY COURT-SUPERVISED NEGOTIATION THAT RESULTED IN
THE SETTLEMENT WAS PROCEDURALLY FAIR. The first two factors set forth in the 2018 amendments— whether: (A) the class representative and class counsel have adequately represented the class; and (B) the proposal was negotiated at arm’s-
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length—correspond to the traditional Grinnell factors focused on the procedural fairness of the
settlement. “To determine procedural fairness, courts examine the negotiating process leading to the
settlement.” In re Sturm, Ruger, & Co., Inc. Sec. Litig., No. 3:09CV1293 (VLB), 2012 WL 3589610,
at *3 (D. Conn. Aug. 20, 2012) (citation omitted). “A ‘presumption of fairness, adequacy, and
reasonableness may attach to a class settlement reached in arm’s-length negotiations between
experienced, capable counsel after meaningful discovery.’” Wal–Mart, 396 F.3d at 116; see also In re
NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 465, 474 (S.D.N.Y. 1998) (noting that the
presumption of procedural fairness under these conditions is “strong”).
The Class in this case was represented by a highly experienced team of lawyers with blended
expertise in class actions and civil rights litigation, including, in particular, conditions litigation on
behalf of incarcerated individuals, and who are well acquainted with the factual and legal challenges
and considerations in prosecuting such cases. Silver Golub & Teitell LLP has extensive experience in
class action litigation and in assessing the reasonableness of class action settlements, having served as
lead class counsel in a number of federal and state court class actions.21 The firm also has prior
involvement in class action litigation involving prison conditions at FCI Danbury. See Miles, et al v.
Bell, Nos. B-79-137 (TFGD) & B-82-626 (TFGD) (D. Conn.) (resulting, mid-trial, in “voluntary”
21 See State Employees Bargaining Agent Coalition et al. v. Rowland, et al., 3:03-cv-221 (AVC) (D. Conn.) (class action against former Governor of State of Connecticut on behalf of unionized State workforce challenging decision to target union members for lay-off in retaliation for their and their unions’ exercise of their First Amendment rights of speech and association, resulting in back pay and other relief to approximately 2,800 workers who suffered adverse employment action and compensatory damages to an additional 45,000 state workers for the chilling of their First Amendment rights); Oshonya Spencer, et al. v. Hartford Financial Services Group, Inc., 3:05-cv-1681 (JCH) (D. Conn.) (class action against national insurance company and its property and casualty subsidiaries on behalf of almost 22,000 nationwide class members challenging structured settlements entered into by defendant with personal injury claimants resulting in the creation of a $72.5 million common fund); Anglim v Xerox Corporation, Civ. No. B-83-251 ( EBB) (D. Conn.) (class action resulting in increased benefits to a class of approximately 40,000 members of Xerox's pension plan); Christiansen v. Chesebrough Pond's, Inc., No. 592 CV 727 (AHN) (D. Conn.) (class action resulting in severance awards to a class of 45 former employees of Chesebrough Pond’s); Town of New Hartford et al. v. Connecticut Resources Recovery Authority, 291 Conn. 433 (2009) (class action on behalf of 70 Connecticut municipalities resulting in judgment in excess of $35 million); see also Heidgerd v. Olin Corporation, Civ. No. N-86-51 (TFGD) (D. Conn.), aff'd, 906 F.2d 903 (2d Cir. 1990) (action on behalf of 178 former employees of Olin Corp resulting in award of severance benefits to all plaintiffs); Rodriguez v. Progressive Northwestern Insurance Company, No. UWY CV-00-0160554 S (X06) (Conn. Super. CLD at Waterbury); and Diglio v. Nationwide Mutual Insurance Company, No. UWY-CV-00-0161135 (X06) (Conn. Super. CLD at Waterbury) (class actions pursuant to the Connecticut Unfair Trade Practices Act and Unfair Insurance Practices Act on behalf of 814 and 129 personal injury claimants respectively whose personal injury claims were improperly settled by the defendant insurance companies in violation of Conn. Gen. Stats. § 52-572a).
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 29 of 52
changes by the BOP in the conditions for pre-trial detainees at Danbury). Complementarily, the
Quinnipiac, Yale Law School, and University of Buffalo legal clinics have extensive experience in
litigation, including habeas class action litigation, on behalf of prisoners and other detained persons
both in Connecticut and nationwide.22
In determining whether a class action settlement is fair, reasonable and adequate, courts
consider the stage of the proceedings and the amount of discovery completed to ensure that class
counsel had access to sufficient information to evaluate their case properly and to assess the adequacy
of any settlement proposal. See Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982); Chatelain v.
Prudential-Bache Sec., Inc., 805 F. Supp. 209, 213-14 (S.D.N.Y. 1992); In re Global Crossing, 225
22 Professor Marisol Orihuela has, individually or through the clinic she directs, been lead counsel in multiple actions on behalf of immigration detainees, including Reid v. Donelan, CV 13-30125 PBS (D. Mass), 19-787, 19-1900 (1st Cir.) (habeas class action challenging prolonged no-bond detention), Franco-Gonzalez v.Holder, CV 10-02211 DMG (C.D. Cal) (class action successfully establishing right to counsel on behalf of immigration detainees who are not competent to represent themselves in removal proceedings); JSR v. Sessions, 3:18 CV 1110 (VAB) (D. Conn.) (habeas action on behalf of detained children challenging Immigration and Customs Enforcement (ICE)’s family separation and detention practice); Campbell, et al v. Moniz, CV 20-10697 PBS (D. Mass) (multi-petitioner COVID-19 habeas on behalf of immigration detainees); Terwilliger v. Cook, No. 3:20 CV 540 (SRU) (D. Conn) (COVID-19 habeas on behalf of state prisoner); Hurdle v. Cook, 3:20 CV 605 (KAD) (D. Conn) (same); Diaz v.Cook, 3:20 CV 653 (KAD) (D. Conn) (same); Thiersaint v. DHS, CV 18-12406 DJC (D. Mass) (Federal Tort Claims Act action seeking damages for torts committed while plaintiff was in ICE custody). Attorney Orihuela is also counsel in Batalla-Vidal v. Wolf, 291 F.3d 260 (E.D.N.Y 2018), 18-845 (2d. Cir.), aff’d in part and rev’d in part sub. nom. Department of Homeland Security v. Regents of the University of California, 140 S.Ct. 1891 (2020) which successfully challenged the Trump Administration’s 2017 attempted termination of the DACA program.
Professor Sarah Russell, Director of the Legal Clinic at Quinnipiac, and Tessa Bialek, Senior Clinical Fellow and Staff Attorney in Quinnipiac’s Legal Clinic, have extensive experience representing prisoners. At Quinnipiac as well as in her capacity as Director of the Liman Public Interest Program and clinical co-supervisor at Yale Law School, Russell has litigated numerous cases involving prisoners in the U.S. District Court for the District of Connecticut. See, e.g., United States v. Almontes, No. 3:05 CR 58 (SRU), 2020 WL 1812713 (D. Conn. Apr. 9, 2020) (compassionate release motion granted on behalf of man at FCI Danbury based, inter alia, on BOP’s failure to provide adequate medical care for his spinal cord injury); Bardo v. Wright, No. 3:17 CV 1430(JBA), 2019 WL 5864820 (D. Conn. Nov. 8, 2019) (court denied summary judgment in case alleging deliberate indifference to client’s serious medical needs); Brodeur v. Champion, No.3:17 CV 1738 (RMS) (D. Conn.) (litigated through trial prisoner excessive force case); Milner v. Black, 3:16-cv-1621 (SRU) (D. Conn.) & Milner v. Mulligan, 3:16-cv-1857 (D. Conn.) (appointed pro bono counsel to incarcerated client asserting claims of excessive force and deliberate indifference to his medical needs); Jane Doe v. Corrections, et. al, No. 3:14 CV 00469RNC (D. Conn.) (appointed guardian ad litem in case challenging transfer by the Department of Children and Families of 16-year-old transgender girl to adult prison absent charges or conviction in adult court); Goode v. Blue, No. 3:10 CV 135MRK (D. Conn.) (appointed pro bono counsel for client alleging assault by a correctional officer at Connecticut’s supermax prison); Forde v. Baird, 720 F. Supp. 2d 170 (D. Conn. 2010) (successfully challenged on religious freedom grounds the BOP’s policy of subjecting a Muslim woman to non-emergency pat searches by male correctional officers at FCI Danbury); Ilina v. Zickefoose, 591 F. Supp. 2d 145, 145 (D. Conn. 2008) (habeas petition filed under 28 U.S.C. § 2241 on behalf of woman incarcerated at FCI Danbury alleging denial of adequate medical care).
Professor Alexandra Harrington is the Director of the Criminal Justice Advocacy Clinic at the University of Buffalo. She was a Deputy Assistant Public Defender in the Connecticut Division of Public Defender Services from 2014-2018, and has represented clients in habeas corpus proceedings in state court, in appeals in the state appellate and supreme court, in motions to correct an illegal sentence, and in parole hearings before the Connecticut Board of Pardons and Paroles.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 30 of 52 F.R.D. at 458 (this requirement “is intended to assure the Court ‘that counsel for plaintiffs have weighed their position based on a full consideration of the possibilities facing them’”) (citation omitted). When weighing this factor, the Court “need not find that the parties have engaged in extensive discovery. . . Instead, it is enough for the parties to have engaged in sufficient investigation of the facts to enable the Court to intelligently make an appraisal of the Settlement.” In re Austrian & German Bank Holocaust Litig., 80 F.Supp.2d at 176 (internal quotations and citations omitted).
Throughout the litigation, and for weeks prior to bringing suit, counsel spent hundreds of hours in communication with the named class representatives and countless other prisoners at FCI Danbury and became thoroughly acquainted with the conditions at the prison, the problems with medical care delivery at the facility and the specific medical vulnerabilities of Class members, including the experiences of those in isolation and quarantine, and the inability of prisoners to socially distance in their housing units. (Ex. A ¶ 6). The level of detail of counsel’s understanding of both the conditions in the facility and the unique medical needs of the members of the Class is fully evidenced in the 19 prisoner declarations submitted as exhibits to the original Petition and Petitioners’ Motion for Temporary Restraining Order—the vast majority of which were prepared as a result of ongoing back and forth Corrlinks communications with Class members while the prison was closed to visitors during the pandemic. (Id. ¶ 5). Counsel also pursued extensive additional contacts on behalf of Class members with their families and legal representatives including obtaining voluminous medical records and other relevant documentation about the circumstances of their convictions and incarceration. (Id. ¶ 6). All told, throughout the period of preparing and litigating this case, counsel has had ongoing communications with at least 400 prisoners at FCI Danbury—including in the FSL, the Camp, and the men’s prison—and at least 150 lawyers and dozens of family members. (Id. ¶ 4).
In addition to these investigations prior to and outside of the litigation process, as this Court is aware from its active involvement in the management of this case, counsel has also been involved in
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 31 of 52
significant information-gathering through intensive litigation and discovery. Between April 27, 2020
and June 8, 2020, Class Counsel:
• Engaged in formal written discovery including propounding and responding to an extensive series of requests for admission, requests for production, and interrogatories, as well as conducting informal discovery;
• Reviewed approximately 20,000 pages of documents produced by Respondent in discovery including class medical records, BOP policies, staff emails, and documents recounting Respondent’s actions following onset of the COVID-19 pandemic;
• Retained two experts, Dr. Jaimie Meyer and Dr. Homer Venters, who prepared expert reports in this matter. Dr. Venters conducted a physical inspection at FCI Danbury prior to issuing his report along with a member of the Class Counsel team;
• Conducted six depositions, including a 30(b)(6) deposition of Respondent’s representative regarding healthcare delivery and conditions at FCI Danbury and depositions of Respondent’s two expert witnesses, Mr. Beard and Ms. Tekbali;
• Defended depositions of Petitioners’ two expert witnesses and defended the deposition of a named petitioner in the action;
• Filed a motion for sanctions against Respondent for spoliation seeking to ensure that in the future crucial medical records would not be destroyed prior to Class Counsel’s ability to review them; and
• Prepared to present testimony and evidence at a preliminary injunction hearing before this Court.
(Ex. A, ¶¶ 8-10, 12-14).
Counsel has also fully investigated the considerations relevant to the home confinement
determinations that are at the heart of the relief sought for the medically vulnerable Class members.
Counsel have scrutinized home confinement worksheets and PATTERN scores, comparing them,
where possible, to information available from other sources including medical records, dockets of
underlying criminal cases and presentence reports. (Id. ¶ 11). Counsel have been aggressive in
identifying errors in information utilized in the BOP’s home confinement reviews and have brought
those errors to the attention of Respondent’s counsel and, where appropriate, in filings to this Court.
(Id.; see also ECF No. 67).
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 32 of 52 There is no question that this intensive information-gathering and discovery process—which included motion practice and every form of discovery available to the parties—was “sufficiently adversarial that [it was] not designed to justify a settlement . . . [,but] an aggressive effort to ferret out facts helpful to the prosecution of the suit.” Martens v. Smith Barney, Inc., 181 F.R.D. 243, 263 (S.D.N.Y. 1998). Class Counsel therefore had ample information to evaluate the strengths and weaknesses of the claims and defenses asserted and the propriety of settlement. See Chatelain, 805 F. Supp. at 213-14 (“Given that document discovery and extensive discussions have already been conducted and resulted in the Stipulation of Settlement, all counsel are undoubtedly acting with a firm grasp of the strengths and weaknesses of the case.”); Ingles v. Toro, 438 F. Supp. 2d 203, 213 (S.D.N.Y. 2006) (settlement negotiated after extensive discovery supports a finding of procedural fairness). In short, Class Counsel had a “clear view of the strengths and weaknesses of their cases and of the adequacy of the settlement.” In re Sturm, 2012 WL 3589610, at *5 (internal citation omitted). Thus, Class Counsel have clearly satisfied the first inquiry under the 2018 amendments (whether counsel have adequately represented the class) and their considered judgment that the Settlement meets the requirements of Rule 23(e) is entitled to “great weight.” In re NASDAQ, 187 F.R.D. at 474; see also Aramburu v. Healthcare Financial Services, Inc., No. 02-CV-6535, 2009 WL 1086938, at *2 (E.D.N.Y. Apr. 22, 2009) (“[I]n appraising the fairness of a proposed settlement, the view of experienced counsel favoring the settlement is entitled to a great weight”) (quotations omitted). The procedural fairness of the Settlement is also supported by the fact that it was the product of arms-length negotiations that involved long sessions over complex issues. The parties spent more than six weeks in negotiations. During that period, they often corresponded several times a day to discuss every textual and practical nuance of the resulting agreement while continuing to prepare for a preliminary injunction hearing. Furthermore, the parties were fortunate to have this Court’s assistance. Negotiations proceeded under the thoughtful guidance of Judge Farrish, who convened nine settlement conferences over the
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 33 of 52
course of four weeks. (ECF Nos. 99, 102, 109, 112, 115, 119, 120, 121, 123). In total, the parties participated in more than forty hours of Court-supervised negotiation before a settlement was finally reached and in the face of a looming hearing on Petitioners’ Motion for Preliminary Injunction. Together, these circumstances reflect a negotiating posture that was not only arms-length but often contentious. Thus, the Settlement also satisfies the Rule 23(e)(2)(B) prong. See Ingles v. Toro, 438 F. Supp. 2d 203, 213 (S.D.N.Y. 2006) (approving injunctive class settlement in prisoner lawsuit where “the litigation was hard-fought and the settlement negotiations . . . were extended and involved the Court”); In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000), aff’d sub nom. D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001) (approving class settlement as the product of arms-length negotiations, where “at points the negotiations were extremely contentious”); see also Wal–Mart, 396 F.3d at 117 (noting that district court held that “there could not be any better evidence of procedural integrity than the aggressive litigation . . . and the impassioned settlement negotiations that produced an agreement on the brink of trial”).
The arms-length nature of negotiations, the extensive discovery conducted under the press of an upcoming preliminary injunction hearing, and the experience of Class Counsel each amply support a finding that the negotiations that ultimately resulted in this Settlement were procedurally fair. See In re Sturm, 2012 WL 3589610, at *4.
II. THE SETTLEMENT AGREEMENT IS SUBSTANTIVELY FAIR, REASONABLE, AND ADEQUATE. The last two prongs of the new Rule 23(e)(2)—whether: (C) the relief provided to the class is
adequate; and (D) the proposal treats class members equitably relative to one another—are concerned with whether the Settlement is substantively fair, reasonable, and adequate, and, in this Circuit, are evaluated with reference to the traditional Grinnell factors. In re Payment Card Interchange Fee, 330 F.R.D. at 29; Berni, 332 F.R.D. at 33.23 “For a settlement to be substantively fair, not every factor must
23 Where, as here, a class action seeks declaratory and injunctive relief, a reviewing court need only consider the first six Grinnell factors. See Marisol A. v. Giuliani, 185 F.R.D. 152, 162 (S.D.N.Y. 1999), aff'd sub nom. Joel A. v. Giuliani, 218
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 34 of 52 weigh in favor of settlement, rather, the court should consider the totality of these factors in light of the particular circumstances.” Kemp-DeLisser v. Saint Francis Hosp. & Med. Ctr., 2016 WL 6542707, at *7 (D. Conn. Nov. 3, 2016) (internal citations and quotation marks omitted).
A. The Proposed Settlement Provides Significant Benefits to the Class As set forth in detail above, the Settlement builds on the benefits obtained in this litigation on behalf of those imprisoned at FCI Danbury who are medically vulnerable as defined by the CDC. The BOP has committed that it will conduct its home confinement determinations as to all individuals identified as medically vulnerable in this litigation pursuant to the standards and criteria set forth by the Court in the TRO entered in this action. In addition to the guaranteed implementation of the criteria set forth in the TRO, the Settlement provides four discrete benefits to the Class—each of which applies without regard to the current extent of COVID-19 in the facility and none of which would have been available absent this Settlement: (1) a procedure for identification of new medically vulnerable Class members with oversight by Class Counsel; (2) expedited home confinement review pursuant to standards set forth in the TRO with oversight by Class Counsel; (3) reconsideration of home confinement denials for some Class members; and (4) reconsideration in the event of certain changed circumstances. In addition, the Settlement leaves intact Class members’ right to pursue monetary relief for any constitutional violations occasioned by the conditions of their confinement and permits pursuit of any claims for injunctive relief arising after the effective date of the Settlement. Finally, although not enforceable as such, as part of the Settlement, Respondent also sent Class Counsel a letter dated July 24, 2020 providing assurances and commitments to improve processes for testing and screening individuals for COVID-19 symptoms at the facility and to improve healthcare delivery at FCI Danbury.
F.3d 132 (2d Cir. 2000), and, with respect to the fifth, the court evaluates the risks of establishing remedies instead of the risks of establishing damages. Id.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 35 of 52 1. Identification of New Class Members
First, the Settlement creates an entirely new procedure for the identification of all prisoners currently at or newly transferred into FCI Danbury who are medically vulnerable to COVID-19 which applies for the entire duration of the agreement—without regard to whether COVID-19 is prevalent (or even present) at the facility at the time such medically vulnerable individuals are identified. The Settlement assures that newly incarcerated individuals will be informed of the Settlement and of their opportunity to have medical records reviewed by Class Counsel and, upon a showing of a qualifying medical condition, to receive the expedited home confinement review guaranteed to Class members under the Settlement. (ECF No. 134-1, ¶¶ 4-5). Where there are disputes as to an individual’s eligibility for Class membership, the Settlement provides a mechanism for third party review by a physician detailed to the BOP from the United States Public Health Service—a significant derogation from the BOP’s otherwise exclusive discretion. (Id. ¶ 4(c)). The inclusion of prospective class members, and a guaranteed mechanism to review their medical records for eligibility for class membership with Class Counsel oversight is a unique benefit of the Settlement that would not otherwise be available to future FCI Danbury prisoners.
2. Expedited Home Confinement Review Pursuant to the TRO Standards The Settlement sets forth a home confinement review process that applies to all members of the Class who are identified as medically vulnerable in the future and all Class members on List Two. The Settlement provides these individuals with the right to expedited home confinement review and requires such determinations to be undertaken in accordance with standards and criteria ordered by the Court in its TRO, in effect constraining to some degree the BOP’s discretion with respect to those determinations. Specifically, each individual is entitled to a home confinement review that, inter alia: (1) assign(s) substantial weight . . . to the inmate’s risk factors for COVID-19; (2) sets forth in a Review Worksheet the factors considered in reaching a home confinement determination; (3) does not treat any particular consideration as an automatic disqualifier to home confinement; and (4) provides a written
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 36 of 52 explanation of any factors relied upon in a determination to deny home confinement despite the danger to the incarcerated individual posed by the COVID-19 pandemic. (See ECF No. 30, at 33-34). Moreover, the Settlement provides an additional procedural protection by requiring that a medical clinician must identify and list the individual’s COVID-19 risk factors for consideration in the home confinement review. And, any individual denied home confinement after review by the Warden at Danbury is entitled to review by the BOP’s Home Confinement Committee (HCC) in Washington D.C. (ECF No. 134-1, ¶¶ 3, 6).
The Settlement, thus, both implements standards which circumscribe to some degree the BOP’s discretion to make home confinement determinations and creates a paper record that permits oversight of those determinations for factual and/or procedural errors by class counsel and, where appropriate, by the Court. BOP’s commitments under the Settlement to both tailor its exercise of discretion in accordance with the standards set forth in the TRO (which would otherwise lapse absent further litigation) and to permit oversight over the process (which would be wholly unavailable absent continued litigation)—is a significant material benefit to the Settlement Class.
3. Re-Review and Error Correction Because the Settlement requires preparation of the Review Worksheet and written explanation of the reasons for denial, with oversight by Class Counsel, the Settlement also affords Class members the unique benefit of obtaining re-review where a home confinement decision is shown to rest on erroneous factual information or fails to apply the proper standards and, where appropriate, allows for judicial review of any such improper determinations.24 (Id. ¶¶ 12, 23).
24 In this regard, Class Counsel identified 54 individuals from List One who were similarly situated to individuals who had been approved for home confinement and had significant and material errors in their previous review. The Settlement provides for reconsideration by the HCC of these 54 individuals under the standards of the TRO and the terms of the Settlement.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 37 of 52 4. Reconsideration based on Changed Circumstances
Finally, the Settlement specifically guarantees all future Class members, all Class members on List Two, and a significant number of Class members on List One who were or are in the future denied home confinement by the HCC based on unsuitable release plans or pending warrants, charges, or detainers the right to reconsideration for home confinement by FCI Danbury if those issues are resolved and, if denied at the level of the institution, further entitles them to review by the HCC. (Id. ¶ 14).25 These reviews—again, not specifically available in the absence of the Settlement —are governed by the standards of the TRO.
Moreover, the Settlement provides these benefits while leaving intact class members’ individual rights to pursue damages relief for Respondent’s responses to the COVID-19 pandemic and to pursue injunctive relief against Respondent to provide adequate social distancing and other changes to the congregate housing conditions at FCI Danbury, for events and circumstances arising after July 27, 2020. (Id. ¶ 16). Class members also have the ability to continue pursuing sentence reduction/compassionate release motions filed pursuant to 18 U.S.C. § 3582. (Id.).
Indeed, there is a concrete measure of the benefits of the terms of this Settlement. Since the commencement of this litigation—and due to the continued implementation of the requirements of the TRO during the pendency of the settlement negotiations and as a result of the Settlement—145 Danbury prisoners identified as medically vulnerable to COVID-19 have been released to home confinement or halfway house placements.
B. The Relief Provided to the Class Is Clearly Adequate in Light of the Costs, Risks and Delay of Trial and Appeal. 1. The Complexity of Continued Litigation and the Benefit of Avoiding Delay
25 The remaining List One Class Members who were reviewed for and denied home confinement prior to the Settlement may seek reconsideration pursuant to the Settlement’s allowance for a request for re-review in the event of a material change in circumstance or new information.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 38 of 52 This multi-party habeas corpus action is complex per se. See U. S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974) (noting that district courts must craft procedures for multi-party habeas litigation based on the nature of the specific claims raised); see also Ronald P. Sokol, Federal Habeas Corpus Practice, 20 Am. Jur. Trials 1 (2020) (“Habeas corpus proceedings in federal courts present many complex problems”); In re Global Crossing Sec., 225 F.R.D. at 455 (S.D.N.Y. 2004) (noting that federal courts favor settlement in “especially complex and large-scale disputes”). Petitioners’ habeas petition sought preliminary relief in the form of admission to bail for many individuals. See Martinez-Brooks v. Easter, No. 3:20-cv-00569 (MPS), 2020 WL 2405350, at *14-*15 (D. Conn. May 12, 2020) (this Court noting that bail may be an appropriate interim remedy at habeas even in a multi-party proceeding). Bail determinations in the context of a petition for habeas corpus require individualized assessments before a court can determine whether to grant bail to a particular petitioner. See Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (individuals must demonstrate that “extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective”). Rather than what could be a more protracted process, the Settlement establishes an expedited procedure to have hundreds of medically vulnerable individuals reviewed for home confinement and released from FCI Danbury if appropriate, and the Settlement provides for Court involvement only when necessary. (ECF No. 134-1, ¶ 23). Given the requisite time and effort for individual bail determinations, the Settlement provides an immediately useful remedy relatively quickly for members of the Class. See Romero v. La Revise Assocs., L.L.C., 58 F.Supp.3d 411, 420-21 (S.D.N.Y. 2014) (noting that “the large number of class members [486] and the fact-intensive nature of their claims mean that litigation would likely be lengthy, complex, and expensive”). Under the rubric of this litigation, multiple members of the Class have already secured release to home confinement pursuant to pre-compliance with the terms of this Settlement. Were the parties to instead proceed to an evidentiary hearing in this matter, the risks to medically vulnerable individuals
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 39 of 52 at FCI Danbury could escalate, especially if another COVID-19 outbreak takes place. In contrast, upon Court approval of this Settlement, the benefits of the Settlement can be immediately provided. This agreement will help move as many vulnerable individuals as possible out of FCI Danbury—which was a principal goal of this litigation. The Settlement, moreover, incorporates this Court’s expectation that any such releases occur within 14 days after approval. (ECF No. 134-1, ¶ 11). See In re Veeco Instruments Inc. Securities Litigation, No. 05 MDL 01695(CM), 2007 WL 4115809, at *1, *6 (S.D.N.Y. Nov. 7, 2007) (noting the virtues of “guaranteed immediate relief for the Class” as opposed to “delays associated with the continued litigation”); Guippone v. BH S&B Holdings LLC, No. 09 Civ. 01029 (CM), 2016 WL 5811888, at *5 (S.D.N.Y. Sept. 23, 2016) (prompt relief by settlement weighed favorably under the first Grinnell factor).
2. The Risks to Obtaining Relief Petitioners’ underlying Eighth Amendment claims rest on a shifting factual and legal landscape. Facts are changing daily at FCI Danbury and around the country as the virus spreads—and while some states are experiencing an increase in their infection rate, others are experiencing a temporary hiatus. Moreover, Respondent has made active use of home confinement as a result of this litigation and has also updated policies and practices purportedly to improve access to healthcare at Danbury. (See ECF No. 57-1, ¶ 21; Ex. B). It is unclear how this Court would view these adjustments if litigation proceeded. See Martinez-Brooks, 2020 WL 2405350, at *29 (noting at the outset that the Warden’s implementation of safety protocols in response to COVID-19 and whether it violated Eighth Amendment standards would be a detailed factual question for evidentiary hearing). Instead of pressing for judicial resolution in these uncharted waters, Class Counsel have secured a settlement that ensures Counsel will remain an integral part of the home confinement review process under the supervision of this Court—insulating protections for medically vulnerable individuals from further alteration or appeal. Whether the BOP’s response to the COVID-19 pandemic and to the Attorney General’s memorandum suffices as a matter of constitutional law is also hotly debated. There have been many
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 40 of 52 cases brought across the country related to people in detention who— whether held as immigrants, pretrial detainees, or post-conviction—are exposed to a substantial risk of contracting COVID-19. The resultant judicial orders have varied over time and place. In some instances, judges have ordered release on bail, called for facilities inspections, or mandated testing, sanitation, and other distancing protocols. See, e.g., Mays v. Dart, No. 20-1792, 2020 WL 5361651, at *9 (7th Cir. Sept. 8, 2020); Criswell v. Boudreaux, No. 1:20-cv-01048-DAD-SAB, 2020 WL 5235675 (E.D. Cal. Sept. 2, 2020); Malam v. Adducci, No. 20-10829, 2020 WL 4496597, at *1 (E.D. Mich. Aug. 4, 2020); Wilson v. Ponce, No. CV 20-4451-MWF (MRWx), 2020 WL 5118066 (C.D. Cal. July 14, 2020); Banks v. Booth, No. 20-849 (CKK), 2020 WL 3303006, at *12 (D.D.C. June 18, 2020); Seth v. McDonough, No. 8:20-cv-01028PX, 2020 WL 2571168, at *14 (D. Md. May 21, 2020); Savino v. Souza, No. NO. 20-10617-WGY, 2020 WL 1703844, at *9 (D. Mass. Apr. 8, 2020).
In several other cases, appellate courts have remanded or reversed preliminary orders or district courts have denied emergency relief altogether. See, e.g., Barnes v. Ahlman, No. 20A19, ___ S.Ct. ___, 2020 WL 4499350 (Aug. 5, 2020); Swain v. Junior, 961 F.3d 1276, 1294 (11th Cir. 2020); Wilson v. Williams, 961 F.3d 829, 845 (6th Cir. 2020); Valentine v. Collier, 956 F.3d 797, 806 (5th Cir. 2020); Fernandez-Rodriguez v. Licon-Vitale, No. 20 Civ. 3315 (ER), 2020 WL 3618941, at *33 (S.D.N.Y. July 2, 2020); Chunn v. Edge, No. 20-cv-1590 (RPK) (RLM), 2020 WL 3055669, at *28 (E.D.N.Y June 9, 2020). This legal uncertainty makes protracted litigation likely in the absence of settlement, as in many other cases litigants have sought and continue to seek appellate review.
Moreover, in addition to questions of liability and remedy are issues of procedure. Many courts have approved multi-party proceedings for COVID-19 detention cases. See, e.g., Wilson, 961 F.3d at 838 (petitioners alleging danger from COVID-19 in confinement could seek class habeas relief “[t]o the extent [they] argue the alleged unconstitutional conditions of their confinement can be remedied only by release”); Valenzuela Arias v. Decker, No. 20 Civ. 2802, 2020 WL 2306565, at *2 (S.D.N.Y. May 8, 2020); Ferrerya v. Decker, No. 20 Civ. 3170 (AT), 2020 WL 1989417, at *3 (S.D.N.Y. Apr.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 41 of 52
27, 2020) (“The extraordinary circumstance of the COVID-19 crisis warrants a multi-party habeas petition permitting expeditious resolution of the claims before the Court”). Yet, as this Court noted, the issue has not been definitively settled. See Martinez-Brooks, 2020 WL 2405350, at *30 (considering “on a provisional basis, whether multi-party treatment is likely appropriate as to this claim and the associated relief” and identifying that “the scope of [] inquiry as to multi-party treatment need not extend beyond the scope of the claim addressed by this ruling”) (emphasis added).
Here, as in many other cases, Class Counsel believes that this action was properly brought as a multi-party/class action proceeding. However, litigation about this case status is yet another reason to come to a settlement. See Chatelain, 805 F.Supp. at 214 (“Even if certified, the class would face the risk of decertification”); In re Sumitomo Copper Litig., 189 F.R.D. 274, 284 (S.D.N.Y. 1999) (the risk of the class being decertified, in which case the class members would recover nothing, favored approval of the proposed settlement); In re NASDAQ, 187 F.R.D. at 476-477 (risk of class being decertified at trial or risk of class certification being reversed on appeal supported approval of settlement); In re Remeron Direct Purchaser Antitrust Litig., No. Civ. 03-0085 FSH, 2005 WL 3008808, at *8 (D.N.J. Nov. 9, 2005) (noting that “the risks faced by Plaintiffs with regard to class certification weigh in favor of approving the Settlement”).26
In short, this factual and legal landscape weighs in favor of approving the Settlement. See In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 177 (S.D.N.Y. 2000) (“the court need only assess the risks of litigation against the certainty of recovery under the proposed settlement”); In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D. 57, 65 (S.D.N.Y. 1993) (identifying the risk of appeal as weighing in favor of settlement despite potentially favorable treatment at the district court level); see also Carson v. American Brands, Inc., 450 U.S. 79, 88 (1981) (noting that the court need not “decide the merits of the case or resolve unsettled legal questions” to approve settlement).
26 Approval of the Settlement also obviates the need for Class Counsel to continually identify new class representatives when old class representatives are released to home confinement—which has already presented problems for the parties during the course of this litigation. See supra note 2.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 42 of 52 C. The Settlement Treats Class Members Equitably Relative to Each Other Rule 23(e)(2)(D) requires the Court to assess whether the Settlement “treats class members equitably relative to each other.” As set forth in the Advisory Note to the 2018 amendments, “[m]atters of concern could include whether the apportionment of relief among class members takes appropriate account of differences among their claims. Fed. R. Civ. P. 23(e), 2018 Advisory Committee Notes. Thus, “equitable” treatment does not require identical treatment. See, e.g., Radcliffe v. Hernandez, 794 Fed. Appx. 605, 607 (9th Cir. 2019) (“Rule 23’s flexible standard allows for the unequal distribution of settlement funds so long as the distribution formula takes account of legitimate considerations and the settlement remains ‘fair, reasonable, and adequate’”); In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, No. 05-MD-1720 (MKB)(JO), 2019 WL 6875422019 at * 27 (E.D.N.Y. Dec. 16, 2019) (approving settlement as “equitable” notwithstanding that merchants who were in the class for only a portion of the class period would have to release claims for the full class period without much compensation, while others might receive proportionally more compensation with the same release). The Settlement in this case creates a process for home confinement review. The question posed by Rule 23(e)(2)(D) is whether that process applies equitably to all members of the class. Since every member of the Class possesses unique circumstances relevant to a home confinement assessment, the results of that process will necessarily be different among the members of the Class. The relevant question is, thus, not whether the process results in the same relief for every member of the Class but whether all Class members had or have the same opportunity to avail themselves of the home confinement process set forth in the settlement. The Settlement is still fair and treats Class members equitably notwithstanding that the process results in different determinations by the Respondent based on legally permissible considerations. The home confinement review provided in the Settlement affords a review that, inter alia: (1) assign(s) substantial weight . . . to the inmate’s risk factors for COVID-19; (2) sets forth in a Review
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 43 of 52 Worksheet the factors considered in reaching a home confinement determination; (3) does not treat any particular consideration as an automatic disqualifier to home confinement; and (4) provides a written explanation of any factors relied upon in a determination to deny home confinement despite the danger to the incarcerated individual posed by the COVID-19 pandemic. The only distinction in treatment among the Class members is that certain List One members who received their home confinement review pursuant to the standards set forth in the Court’s TRO, but before those terms of the TRO were incorporated into the Settlement, see n.19, supra, are not entitled to automatic reconsideration whereas List One members who were identified in Exhibit B to the Settlement are entitled to such reconsideration. The individuals on Exhibit B who received such reconsideration had significant and material errors in their previous review and were, on the face of the worksheets, similarly situated to individuals who had been granted home confinement—a consideration on which the Court had specifically relied in issuing its own Orders requiring HCC review during earlier proceedings in this matter. (See, e.g., ECF No. 68). Moreover, the List One members excluded from the benefits of automatic reconsideration may nevertheless seek reconsideration along with other Class members pursuant to the Settlement’s allowance for a request for re-review in the event of a material change in circumstance or new information. Thus, to the extent that any difference between automatic re-review and “material change of circumstance” re-review may inform the ultimate outcome of such re-review, the differential treatment with respect to this process among members of the Class was both principled and equitable—and premised on factors which both the BOP and the Court had previously treated as legally relevant. See Fed. R. Civ. P. 23(e)(2)(D) (settlements must treat “class members equitably relative to each other”); William H. Rubenstein, 5 Newberg on Class Actions § 13.44 (5th ed. June 2020 Update) (noting that a settlement is still equitable where “class members should be treated differently because they are situated differently”); see also Clark v. Duke University, 2019 WL 2588029, at *5–6 (M.D. N.C. 2019) (noting that “different circumstances” justified different treatment of class members and that settlement was both fair and equitable).
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D. The Objections Raise Understandable Concerns but Do Not Warrant Rejection of the Settlement
Counsel have filed this lawsuit on behalf of incarcerated people at FCI Danbury and have learned from many of them that they approve of this Settlement, while others have registered to Counsel and to this Court their concerns and opposition. Below, Counsel explain the kinds of objections received and our views on how to weigh them. Moreover, because it remains unclear who may become a member of the Class in the future, Counsel urge the Court to consider all objections, whether the individual has been recognized already as a member of the Class or not. Although non-class members lack standing to object to the Settlement under Rule 23, see Gould v. Alleco, Inc., 883 F.2d 281, 284 (4th Cir. 1989), at this juncture it is not possible to know whether any individual imprisoned at FCI Danbury who is not already identified as a Class member nevertheless has standing to object—as individuals may be identified as Class members in the course of execution of the Settlement. (ECF No. 134-1 ¶¶ 4-5) (provisions for identifying medically vulnerable). Class Counsel also urge the Court to consider objections received by the Court after the September 4, 2020 deadline. As noted in Counsel’s September 4 filing (ECF No. 173), multiple objectors mailed objections to the Court in advance of that deadline but the objections were not yet docketed by September 4. Prisoners at FCI Danbury are unable to control when the mail leaves the facility and there are often delays. Class Counsel have docketed all responses received by Counsel to date that were not already docketed. (ECF No. 173-1).
Class Counsel have reviewed every filing and have identified four major objection categories, which we summarize for the Court below. As explained, the substance of the objections and other comments by Class (and non-Class) members weighs in favor of this Court’s approval of the Settlement.
1. Objections to Conditions of Confinement During the COVID-19 Pandemic and Absence of Enforceable Conditions-Related Terms in the Agreement.
The vast majority of the objections detail class members’ difficult and traumatic experiences in prison during the COVID-19 pandemic. The comments reflect the enormous anxiety experienced by
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 45 of 52 people detained in congregate housing, where they are unable to control their surroundings and have difficulty accessing health care. Many wrote about the conditions of their confinement at FCI Danbury and about Respondent’s inability to maintain social distancing, properly sanitize or ventilate the facility, or ensure adequate access to healthcare, including prompt and non-punitive care for those with COVID-19 and related exposure. (See, e.g, ECF Nos. 140, 143, 145, 147, 151, 152, 156, 162, 163, 164, 166, 168, 169, 171, 172, 173, 177, 185, 187, 188, 191, 196, 197, 198, 199, 200, 202, 206, 209, 212, 214, 216). Many people—including several who expressed support for the Settlement insofar as it provides for home confinement review for medically vulnerable individuals—objected to the fact that the Settlement does not address these conditions-related issues. (See, e.g, ECF Nos. 161, 173, 179, 180, 182, 190, 192, 194).
These objectors express understandable frustration that the Settlement does not encompass an agreement concerning the conditions at FCI Danbury. As reflected in the Petition, Class Counsel viewed the conditions at FCI Danbury as deeply troubling, but also recognized limitations in the law affecting whether petitioners could prevail on constitutional challenges to such conditions. While Class Counsel were unable to reach an enforceable agreement on conditions of confinement, the Settlement preserves the right of all Class members (and non-Class members) incarcerated at FCI Danbury to pursue injunctive relief against Respondent to challenge these conditions again in the future. (ECF No. 134-1, ¶ 16). With respect to past-looking claims, the Settlement does prevent members of the Class from seeking injunctive relief for any acts or omissions relating to the BOP’s response to the COVID19 pandemic prior to July 27, 2020. (ECF No. 134-1, ¶ 16). But this limited preclusion of retrospective actions for injunctive relief will be of no significance to any member of the Class seeking to litigate present conditions in the prison. That litigation could be brought today. Cf. W. v. City of New York, 2016 WL 4367969, at *10 (S.D.N.Y. Aug. 12, 2016) (finding injunctive consent decree unfair and unreasonable based, in part, on “the extraordinary length of time for which the parties propose to bar further systemic litigation”). Furthermore, the Settlement does not affect the right of non-Class
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members to challenge the conditions in the facility at any time. In addition, Class Counsel secured a letter of assurance regarding necessary improvements the
BOP has committed to undertaking at Danbury (ECF No. 138-1).27 Class Counsel’s negotiations on the provisions in this letter were informed by communications with hundreds of persons incarcerated at FCI Danbury about their experiences and issues; Class Counsel endeavored to reflect and resolve as many of their concerns as possible in the letter. To the extent Respondent fails to live up to these assurances and conditions at FCI Danbury fall below constitutional requirements, members of the Class can re-institute their challenge against Respondent.
Finally, the Class remains entitled to bring their own lawsuits for money damages based on the same circumstances raised in this lawsuit or any other COVID-19-related circumstances past or present. See Stinson v. City of New York, 256 F. Supp. 3d 283, 292–93 (S.D.N.Y. 2017) (approving a settlement where it did not release any class members’ individual damage claims arising from the same allegations). The Settlement therefore permits, as it should, vindication of the interests identified by many of these objectors while securing an expedited home confinement review process that will help medically vulnerable individuals leave prison. See Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., 140 S.Ct. 1589, 1596 (2020) (noting that “preclusion generally does not bar claims that are predicated on events that postdate the filing of the initial complaint”) (internal quotations and citations omitted).
2. Objections to the Settlement for Not Reaching Non-Class Members. At least two objections express concern that the Settlement does not cover everyone at FCI Danbury. One objection prepared on behalf of sixty-four individuals opposes the Settlement because it
27 As discussed elsewhere, the benefits of securing immediate relief for members of the Class—many of whom will be released pursuant to the procedure set forth in the Settlement—far outweighed the lengthy delay and significant risks of litigation to secure a remedy for prison conditions and added safety measures at FCI Danbury that could not be secured during settlement negotiations. See Martinez-Brooks, 2020 WL 2405350, at *29 (noting that the Warden’s implementation of safety protocols in response to COVID-19 and whether it violated Eighth Amendment standards would be a detailed factual question for evidentiary hearing). The constantly changing conditions on the ground at the prison with respect to the COVID response added to the uncertainty of litigation. This balance reached by the Settlement is particularly sensible because conditions can be the subject of future litigation.
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does not provide relief for individuals at FCI Danbury who are not medically vulnerable to COVID-19 (ECF No. 147), and another proposes that the Settlement should extend to those who have already tested positive for COVID-19 and to those without medical conditions. (ECF No. 143).28
Again, Class Counsel understand the frustration that some at FCI Danbury will feel from not being included in the Class or Settlement. Yet, the Settlement does not alter the legal rights of individuals who are not part of the settlement class. These individuals retain their right to pursue all causes of action against Respondent without restriction. (See ECF No. 134-1, ¶ 16 (noting that voluntary dismissal of claims is without prejudice as to all individuals not part of the “Medically Vulnerable Class”)); see also Fed. R. Civ. P. 23(1)(A) (court approval for voluntary dismissal of a class action complaint only required for a certified class). In any case, those individuals have been placed in the position they were in prior to the filing of this instant lawsuit, and therefore their concerns—that they do not benefit from the Settlement—while understandable, do not implicate Rule 23(e) concerns.
Finally, to the extent that home confinement releases de-densify the institution, the Settlement may make it easier for everyone at Danbury to practice social distancing—Counsel acknowledges that to achieve that benefit, however, release rates would have to increase significantly; moreover, transfers into the facility, which, according to several objections, have increased in recent weeks (e.g., ECF Nos. 147, 158, 177, 199), would need to be slowed or stopped.
3. Objections Discussing Individual Cases for Home Confinement Release. Many objectors have already been reviewed for home confinement and denied release—they challenge the underlying substantive determination, urging the Court to intervene. (See, e.g., ECF Nos. 188, 190, 202). A number of these objectors described their health conditions and care by Respondent and argued that these should have weighed in favor of their being released to home confinement (See, e.g., ECF Nos. 158, 173, 195, 212). Others, citing similar health and care concerns, assert that they
28 Notably, the Settlement covers individuals with qualifying medical conditions who have already tested positive for COVID-19 and prohibits BOP from using prior infection as a reason for denying them home confinement. (ECF No. 1341, ¶ 8).
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 48 of 52 should have been already identified as medically vulnerable. (See, e.g., ECF Nos. 162, 170, 183, 196, 204). Those challenging the home confinement reviews also include several people who seek to ensure that people convicted of sex or violent crimes are not precluded from home confinement relief. (ECF Nos. 143, 144, 156, 173, 181).
Class Counsel acknowledge the seriousness of these objections that echo their hundreds of conversations with Class members over the course of the litigation. However, the issue before the Court is not a particular individual’s treatment, but whether the relief obtained by the Settlement—here, a process for home confinement review—is fair, adequate, and reasonable. See Austin v. Pa. Dep’t of Corr., 876 F. Supp. 1437, 1459 n.12 (E.D. Pa. 1995) (in a case regarding medical care, “an individual inmate’s objections regarding his own care are not directly relevant to the Court’s inquiry into the fairness of the Settlement Agreement”). Here, the Settlement provides as many Class members as possible the ability to challenge a home confinement review to the extent that it does not comply with the TRO, including, inter alia, if it: (1) fails to assign adequate weight to an individual’s COVID-19 risk factors; (2) relies on erroneous or outdated information; or (3) uses automatic disqualifiers prohibited by the TRO. (ECF No. 134-1, ¶¶ 12, 14, 23). The Settlement will therefore allay the concerns that some objectors have with Respondent’s home confinement reviews. Decoteau v. Raemisch, No. 13–cv–3399–WJM–KMT, 2016 WL 8416757, at *7 (D. Colo. July 6, 2016) (approving settlement for injunctive relief in prison suit where “Settlement Agreement contains a dispute resolution mechanism that Class Counsel can invoke if serious complaints continue to arise regarding these matters”).
For those home confinement reviews that resulted in denials but for which there is no error, the Settlement is still fair as the relief ordered by the Court was procedural in nature rather than substantive release. Some objections also requested sentencing reduction or compassionate release relief beyond the scope of this litigation. (See, e.g., ECF No. 169). However, the Settlement explicitly carves out a right for members of the Class to pursue this relief on an individualized basis. (ECF No. 134-1, ¶ 16).
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4. Objections to the Home Confinement Review Process A small minority of the objectors raise concerns that are specific to the Settlement and its terms—that is, the Settlement applies to them, and they object to aspects of the home confinement review process set out in the agreement. Some of these objectors are individuals on List One who note factual errors in their initial review that they believe should entitle them to reconsideration along with the others identified in Exhibit B to the Settlement (ECF Nos. 173, 174, 207, 212),29 including that they or others suffer from additional medical conditions that, at the time of HCC review, the CDC did not recognize as rendering them especially vulnerable to COVID-19, but that it has since recognized (See, e.g., ECF No. 156).30 It is true that although the individuals on List One have already been given a home confinement review pursuant to the terms of this Court’s TRO (see ECF No. 57-1), only the subset set forth in Exhibit B are receiving automatic reconsideration before the HCC. Respondent agreed in the Settlement to have the HCC reconsider these individuals, and any errors in these HCC reviews will be subject to the Settlement’s enforcement mechanism. Respondent did not agree to reconsideration of the remainder of List One individuals, however these individuals may seek re-review pursuant to the Settlement’s allowance for a request for re-review in the event of a material change in circumstance or new information.31 Two of the objections expressed concern about delays in the home confinement review process for people not identified as medically vulnerable under the Settlement—that is, that the institution’s
29 Note that some objectors who raise issues of error in the initial review are listed in Exhibit B and entitled to re-review under the Settlement in the event of material error or mistake of fact in the initial review. (ECF Nos. 185, 186, 202). 30 Several objectors not on List One also cite this latter concern in their objections and request that the Settlement provide for re-review anytime the relevant CDC Guidance changes. (E.g., ECF Nos. 179, 198, 216). 31 Counsel are cognizant of the objections raised by Mr. Lenchick (ECF Nos. 173 and 174) and believe those objections raise legitimate concerns arising out of the incomplete implementation of the Court’s May 29, 2020 Order (ECF No. 70) while the parties were negotiating the present Settlement. Counsel are prepared to discuss Mr. Lenchick’s individual circumstances at the fairness hearing. Objectors Falls (ECF No. 207) and Gioieli (ECF No. 212) assert that their reviews were based on mistaken information about existing detainers or the circumstances of conviction which, Counsel believe, would permit them to correct their Central File and request re-review based on a material change in circumstance or new information.
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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 50 of 52 usual home confinement review process has slowed significantly or stalled. (ECF Nos. 167, 171). Counsel note that these reviews should be continuing apace notwithstanding the Settlement.
Finally, many objectors wrote that they and others are not able to assess the validity of the home confinement review process if they do not have access to the worksheets and materials underlying those decisions, as well as the written decision itself. (ECF Nos. 156, 173, 179, 182, 184, 191, 216). For Class members denied home confinement under the Settlement, Class Counsel will be providing individuals with the information on which their home confinement decisions were based and endeavoring to access materials underlying the decisions, where possible. Class Counsel understands that not all List One individuals have yet had access to this information and underlying materials.32
We note that the views of Class members in a settlement are to be taken into account but are not dispositive. See, e.g., Grant v. Bethlehem Steep Corp., 823 F.2d 20, 23 (2d Cir. 1987) (district courts have a fiduciary obligation to the “silent majority” of class members and weighing this factor in favor of settlement even where a large minority of class members voice objection); Collins v. Olin Corp., No. 3:03–cv–945 (CFD), 2010 WL 1677764, at *4 (D. Conn. April 21, 2010) (citing County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1325 (2d Cir. 1990)). While the views of the objectors to the settlement are understandable and reflective of real frustrations with the conditions at the prison and with the home confinement review process, the significant provisions of the settlement will continue to benefit the Class and help send many medically vulnerable prisoners home safely as quickly as possible. This Settlement is plainly fair, reasonable, and adequate as required by Rule 23.
CONCLUSION For the reasons set forth above, Counsel requests that this Court grant final approval of the Settlement and authorize Class Counsel to begin enforcing its terms on behalf of the Class.
32 Several people objected in part because the Settlement does not provide for monetary compensation. (See, e.g., ECF Nos. 143, 190, 194.). Again, however, the Settlement does not preclude any individual claim for monetary relief. Moreover, this multi-party habeas petition was never an action for damages.
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September 11, 2020

/s/ David S. Golub_______ David S. Golub, ct00145 Jonathan M. Levine, ct 07584 Silver Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Telephone: (203) 325-4491 Email: dgolub@sgtlaw.com
jlevine@sgtlaw.com
Sarah French Russell, ct26604 Tessa Bialek, ct30582 Alexis Farkash, Law Student Intern* Abigail Mason, Law Student Intern* George Morgan, Law Student Intern* Krista Notarfrancesco, Law Student Intern* Samantha Pernal, Law Student Intern* Grace Ronayne, Law Student Intern* Hannah Snow, Law Student Intern* Kathryn Ulicny, Law Student Intern* Kylee Verrill, Law Student Intern* Legal Clinic, Quinnipiac University School of Law 275 Mt. Carmel Avenue Hamden, CT 06518 Telephone: (203) 582-5258 Email: sarah.russell@quinnipiac.edu
tessa.bialek@quinnpiac.edu
Marisol Orihuela, ct30543 Zal K. Shroff, Cooperating Counsel** Ariadne Ellsworth, Law Student Intern* Alexandra Gonzalez, Law Student Intern* Alexander Nocks, Law Student Intern* Phoenix Rice-Johnson, Law Student Intern* Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Telephone: (203) 432-4800 Email: marisol.orihuela@ylsclinics.org

Alexandra Harrington, ct 30943 Criminal Justice Advocacy Clinic University at Buffalo School of Law 507 O’Brian Hall, North Campus Buffalo, NY 14260 Telephone: (716) 984-2453 Email: aharr@buffalo.edu

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Case 3:20-cv-00569-MPS Document 218 Filed 09/11/20 Page 52 of 52

* Motion for law student appearance forthcoming ** Application for admission forthcoming

Counsel for the Petitioner James Whitted

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 Case 3:20-cv-00569-MPS Document 289 Filed 12/11/20 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on behalf of all others similarly situated,
Petitioner, v.
DIANE EASTER, Warden of Federal Correctional Institution at Danbury in her official capacity,
Respondent.

No. 3:20-cv-00569 (MPS) December 11, 2020

ORDER OF SPECIFIC PERFORMANCE I assume familiarity with the pleadings and orders in this case and with the class settlement, embodied in a Settlement Agreement approved by the Court after a fairness hearing on September 18, 2020. For reasons I will explain in a forthcoming opinion, I find that the Bureau of Prisons (“BOP”) and the Respondent have breached the provision of the Settlement Agreement requiring that they “endeavor to release individuals approved for home confinement to home confinement within 14 days of the approval decision unless public safety or the absence of any home in which to place the inmate would make it unsafe to move the inmate to home confinement during that 14 day period.” ECF No. 134-1 at 11-12. There are currently 17 inmates at FCI Danbury who have been approved for home confinement but have been waiting substantially more than 14 days—some as long as 3 months—for processing of their release to home confinement. I am issuing this order now to effectuate their near-immediate release due to the urgent circumstances at FCI Danbury

Case 3:20-cv-00569-MPS Document 289 Filed 12/11/20 Page 2 of 4
presented by a new surge of COVID-19 infections there, as reflected on the BOP’s COVID-19 website and in sworn declarations filed by the petitioner.
In the event of a breach, the Settlement Agreement authorizes the Court to order spe cific performance. ECF No. 134-1 at 14, 15. Yesterday, during a telephonic hearing with the parties, Respondent’s counsel agreed that that authority allows the Court, if it finds that the BOP and the Respondent have breached the above-mentioned provision, to order a specific date for release of particular inmates. As noted, I make that finding and, with respect to the 17 inmates identified in this order, I further find that there is no public safety or other reason to refrain from doing by 5:00 p.m. on Saturday, December 12, 2020, what the BOP’s Home Confinement Committee has already determined the Respondent Warden should do: release them to home confinement (or, if for some technical reason the Warden believes that is not possible, release them to their h omes on furlough). The 17 inmates are identified in ECF No. 282, which counsel for the Respondent shall provide to the Respondent along with a copy of this order forthwith. The only public safety concern about immediately releasing these 17 inmates cited by counsel for Respondent during the telephonic hearing yesterday was that some of them have not yet completed a 14-day quarantine. But as I will explain in more detail in the forthcoming opinion, the fact that some of these inmates have not completed a 14-day quarantine at FCI Danbury does not, under the current circumstances at FCI Danbury, warrant further delaying their transfer to home confinement (or furlough). Given the apparently rapid increase in infections at FCI Danbury, it will be safer for all concerned for these inmates to quarantine in their homes, which they should be instructed to do upon leaving FCI Danbury. Accordingly, Respondent and the BOP shall transfer to home confinement (or furlough) each of the 17 inmates identified in ECF No. 282 by 5:00 p.m. on Saturday, December 12, 2020. Should any of these 17 inmates require

Case 3:20-cv-00569-MPS Document 289 Filed 12/11/20 Page 3 of 4
additional time to arrange for safe transportation to the place of home confinement (or furlough), Respondent and the BOP shall be granted such additional time —but not later than Tuesday, December 15, 2020, at 5:00 p.m.—as is necessary to safely move that inmate to home confinement (or furlough). For the avoidance of doubt, a family member’s or friend’s picking up the inmate at FCI Danbury in a vehicle constitutes safe transportation for purposes of this order.
In addition, henceforth, the BOP/Respondent may not delay releasing an inmate who is a member of the settlement class in this case beyond 14 days after approval by the Home Confinement Committee for any of the following reasons: (1) the need to make additional notations in, or the need to supplement, the inmate’s medical record; (2) the need to quarantine an inmate at FCI Danbury unless the BOP finds, for specific reasons, that the inmate cannot safely quarantine at home; (3) the need to await COVID-19 test results or to further quarantine an inmate if the inmate has quarantined for 14 days at FCI Danbury and is not showing symptoms of COVID-19; (4) electronic or paperwork errors of the type described in the Warden’s declaration, ECF No. 281 at 3-4; (5) a delay in transmitting an approval by the Home Confinement Committee to the RRM of more than 2 days from the date of approval; (6) a delay by the RRM in setting the inmate’s date for release of more than 5 days from receipt by the RRM of the referral packet; (7) the setting of a date for release by the RRM that is more than 14 days from the sending of the referral packet to the RRM; and (8) the need to make or document a comparative risk assessment with respect to whether home confinement would be more effective in protecting the inmate’s health than continued confinement at FCI Danbury.
Further, to the extent there is a delay beyond 14 days from approval, the reasons for the delay and a plan to eliminate or minimize further delay must be specifically documented and

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communicated to class counsel within 5 days of the expiration of the 14-day period from approval. The plan need not be detailed but should note practical steps the BOP intends to take to clear the obstacles to release. Similarly, in case the BOP views the delay as justified by public safety considerations or the absence of a home, it must document its findings and the steps it intends to take to resolve those obstacles and provide such documentation to class counsel within 5 days of the expiration of the 14-day period from approval.

IT IS SO ORDERED.

Dated:

Hartford, Connecticut December 11, 2020

/s/ Michael P. Shea, U.S.D.J.

 
 Case 3:20-cv-00569-MPS Document 304 Filed 12/22/20 Page 1 of 26

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on behalf of all others similarly situated,
Petitioner, v.
DIANE EASTER, Warden of Federal Correctional Institution at Danbury in her official capacity,
Respondent.

No. 3:20-cv-00569 (MPS)

MEMORANDUM REGARDING ORDER REQUIRING SPECIFIC PERFORMANCE OF CLASS SETTLEMENT AGREEMENT
In settling a class action brought by inmates whose medical conditions made them especially vulnerable to serious illness from COVID-19, the Warden of Federal Correctional Institution Danbury (“FCI Danbury”) and the U.S. Bureau of Prisons (“BOP”) agreed to “endeavor to release individuals [incarcerated at FCI Danbury who were] approved for home confinement to home confinement within 14 days of the approval decision unless public safety or the absence of a home in which to place the inmate would make it unsafe to move the inmate to home confinement within that 14 day period.” ECF No. 238 -1 at 11-12. The class of inmates recently filed a motion to enforce this provision of the settlement agreement on behalf of 17 inmates who were approved by the BOP for release to home confinement more than 14 days before the filing of the motion—some as long as three months before. ECF No. 263. On December 11, 2020, after considering the submissions of the parties and hearing oral a rgument during a telephonic status conference, I granted the motion, ordered that the 17 inmates be

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released by Saturday, December 12, 2020 at 5:00 p.m., and, going forward, limited the permissible reasons for which the Warden and the BOP could delay the release of inmates to home confinement beyond 14 days from the date they are approved for home confinement. ECF No. 289. On December 14, 2020, I also ordered that one of the 17 inmates whose proposed place of home confinement was no longer available be released under the BOP’s furlough authority to the care of class counsel. ECF No. 294. I noted in my December 11 and 14 orders that I would later issue an opinion to provide a more fulsome explanation of the reasons for those orders. This is that opinion. In short, as explained below, the Warden and the BOP delayed transferring the 17 inmates to home confinement for reasons that do not comport with their promise to “endeavor” to effectuate those transfers within 14 days, and the December 11 and 14 orders were necessary to realize that promise. I. BACKGROUND
I assume familiarity with the factual and procedural background of this case as set forth in the Ruling on Motion for Temporary Restraining Order and Motion to Dismiss, ECF No. 30 , and with the parties’ submissions relating to the class’s motion to enforce the Settlement Agreement. See ECF Nos. 263-74, 277-87. I recount the background here only as necessary to explain the December 11 and 14 orders.
On July 27, 2020, the parties entered into a Settlement Agreement resolving all claims brought by Petitioner, James Whitted, individually and on behalf of members of a proposed class, against the Respondent, Diane Easter, in her official capacity as the Warden of FCI Danbury and the BOP. ECF No. 238-1 at 2. On August 11, 2020, on motion of the parties, I certified the following Settlement Class (“Medically Vulnerable Class” or “Settlement Class”):
any person incarcerated at FCI Danbury anytime from the Ef fective Date of the parties’ Settlement Agreement, i.e., July 27, 2020, until the termination date of the Agreement,
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i.e., October 31, 2021, unless otherwise modified by the parties pursuant to the terms of the Agreement, who either (a) is a List One Inmate or List Two Inmate (as those terms are defined in the Settlement Agreement, ECF No. [238-1] at 3-4), or (b) possesses one or more underlying medical conditions which, according to current CDC guidance (i.e., the CDC guidance in effect at the time of the individual’s home confinement review), either (i) places that inmate at increased risk of severe illness from COVID-19 (“Tier 1 medical conditions”); or (ii) might place that inmate at an increased risk of severe illness from COVID-19 (“Tier 2 medical conditions”).
ECF No. 141 at 2-3. I ordered the distribution of notice to the settlement class and scheduled a
fairness hearing for September 18, 2020 to consider final approval of the Settlement Agreement.
Id. at 7-8. At the September 18, 2020 fairness hearing, I approved the Settlement Agreement,
ECF No. 221; I later dismissed the case, expressly retaining jurisdiction to the full extent
necessary to enforce the terms of the Settlement Agreement , ECF No. 241.1
As pertinent here, the Settlement Agreement sets forth standards and procedures for
conducting home confinement reviews for members of the Settlement Class2 and a multi-tiered
dispute resolution procedure that culminates in judicial intervention. See ECF No. 238-1. The
dispute presented by the class’s motion to enforce arises from paragraph 11, which provides as
follows:
BOP will endeavor to release individuals approved for home confinement to home confinement within 14 days of the approval decision unless public safety or the absence of any home in which to place the inmate would make it unsafe to move the inmate to
1 I have ancillary jurisdiction over the Petitioner’s motion to enforce the settlement agreement because, upon dismissal, I
reserve[d] and retain[ed] jurisdiction over theparties and this case to the full extent necessary to enforcethe terms of the Settlement pursuant to the terms set forth therein (ECF No. 238-1). See Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381 (1994); In re American Express Financial Advisors Securities Litigation, 672 F.3d 113, 134 (2d Cir. 2011). The Settlement Agreement (ECF No. 238-1) is hereby incorporated in this order by reference.
ECF No. 241; see also Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir. 1974) (“A district court has the power to enforce summarily, on motion, a settlement agreement reached in a casethat was pending before it.”). 2 These standards incorporated thoseset forth in the May 12, 2020 temporary restraining order. See ECF No. 238-1 ¶¶ 2, 3, 6, 10, 11; see also ECF No. 30 at 71.
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home confinement within that 14 day period. Id. at 11-12. Where, as here, the parties are unable to resolve a dispute and seek judicial intervention, “the sole remedy shall be specific performance of th[e] Agreement.” Id. at 16.
In the motion to enforce, the class alleged that 17 inmates had been approved for home confinement but that each of them was being held at FCI Danbury for more than 14 days without a permissible reason under the Settlement Agreement, i.e., without a public safety reason or the lack of a home in which to place the inmate. ECF No. 263 at 1. At the time of filing, December 6, 2020, these inmates had been waiting to be released on home confinement, after having been approved for such release, for between 273 and 104 days. ECF Nos. 265, 282. The class also filed supporting declarations from four of these 17 inmates, all of whom expressed a fear of contracting COVID-19 at FCI Danbury, as well as two other FCI Danbury inmates. See ECF Nos. 272, 273, 274, 284, 285, 279-3. All six declarations observe a recent spike in COVID-19 cases at FCI Danbury. See ECF No. 272 (observing at least five positive COVID-19 test results in the women’s camp, but none on her “quarantine floor”); ECF No. 273 (noting the recent outbreak at FCI Danbury); ECF No. 274 (noting the recent ou tbreak at FCI Danbury); ECF No. 284 (noting at least four positive COVID-19 tests in the women’s camp on Monday, December 7, 2020); ECF No. 285 (noting at least two positive COVID-19 tests, and one symptomatic inmate, in the FSL between December 6 and 7, 2020); ECF No. 279-3 (this inmate, who is seven months’ pregnant, noted at least five COVID-19 positive tests at the women’s camp in the past
3 In the motion to enforce, class counsel identified one inmate, M.D., who had been waiting 16 days, but indicated that this date was uncertain because it was only based on thedate class counsel received the approval packet and was not necessarily the actual date of approval. ECF No. 265. In the Warden’s declaration, she clarifies that this inmate was approved for home confinement on 11/9/2020, not on 11/20/2020—the date class counsel received M.D.’s homeconfinement approval packet. ECF No. 281 at 7 ¶ 24. As a result, M.D. had been waiting for 27 days as of December 6, 2020, not 16 days.
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week, including one symptomatic inmate whose bed is three feet away from her own). 4 Four of the six declarations also observe a gap in BOP staff ’s checking of inmates’ temperatures and COVID-19 symptoms. See ECF No. 273 (no temperature or symptom checks between before Thanksgiving and December 7, 2020); ECF No. 284 (no temperature or symptom checks from November 23 to December 7, 2020); ECF No. 285 (noting that temperature and symptom checks were conducted on December 7, 2020, and that everyone at the FSL was tested for COVID -19 on the same day; this inmate recalls that temperature and symptom checks were conducted four times in the month prior to December 7); ECF No. 279-3 (noting a gap in temperature and symptom checks, which started again on December 7, 2020 at the women’s camp) .
Each of the four declarations from inmates approved for home confinement describes a prolonged waiting or quarantine period beyond fourteen days:
• J.H., an inmate at the women’s camp, was approved for home confinement on September 21, 2020. She had been in quarantine for 20 days as of December 9, 2020, was tested for COVID-19 three times, and—based on her projected release date of December 17—would have been in quarantine for a full month prior to release. J.H. is able to isolate at her place of home confinement, a friend’s home in Mississippi. See ECF Nos. 272, 282 at 4.
• M.R., an inmate at the women’s camp, was approved for home confinement on October 5, 2020. She was scheduled to be released to home confinement on December 5, 2020 but was placed in quarantine on December 8, 2020, and her release was delayed until January 5, 2021. ECF Nos. 273, 282 at 4-5.
4 As of December 21, 2020, the BOP’s COVID-19 webpage reported a total of 95 active infections among a population of 862 inmates. https://www.bop.gov/coronavirus/; https://www.bop.gov/locations/institutions/dan/ (both last visited on December 21, 2020). This is a sharp increase from thereport of 30 active inmate infections on December 6, when the motion to enforce was filed.
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• N.L., an inmate at the women’s camp, was approved for home confinement on October 5, 2020. She was placed in quarantine on December 1, 2020 and was tested for COVID-19 on December 1 and 8. N.L.’s scheduled release date was December 22, 2020. ECF Nos. 274, 282 at 4.
• W.H., an inmate at the women’s camp, was approved for home confinement on August 24, 2020. She was scheduled to be released to home confinement on December 29, 2020, and was placed in quarantine on December 8. W.H. received a COVID-19 PCR test before entering quarantine and a rapid test after she entered quarantine. ECF No. 282 at 4, 284.
The class also provided a chart that includes the home confinement approval date, the number of days waiting, and the expected home confinement release date of each of the 17 inmates. ECF No. 265; see also ECF No. 282 (an updated version of the same chart produced by the Respondent).
Before the filing of the motion to enforce, Warden Easter wrote a letter, ECF No. 267, to respond to concerns about these delays being raised by class counsel. The letter, dated December 1, 2020, was written in response to a letter from class counsel dated November 23, 2020, and provides an explanation for the delay in releasing 12 inmates who had been approved for home confinement. ECF No. 267 at 2. Warden Easter explains as follows:
As a general matter, several circumstances have converged to create challenges to redesignating inmates to HC within 14 days of being approved. First, the BOP’s Health Services Division recently implemented several pre-release requirements to account for the risk of an inmate on HC [home confinement] contracting COVID while in HC, all of which must be clearly documented in the inmate’s medical record (“BEMR”) and included with the paperwork necessary to transfer an inmate to HC. These requirements include Health Services staff meeting with the inmate to discuss the specific type of release residence (house/apartment/group home, etc.) where the inmate will be living, account for any health concerns from individuals in the residence, secure a contact phone number for the inmate, and arrange safe transportation from the institution to the
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residence. Health Services staff must also educate the inmate as [to] how to protect themselves from COVID-19 transmission, including proper hand washing, social distancing, wearing of facial coverings and how to conduct self -assessments for signs and symptoms of COVID-19. Health Services staff must also evaluate the release plan to determine if HC would be more effective in protecting the inmate’s health than continued confinement at their present place of incarceration. Finally, Health Services staff must make a determination whether the inmate requires medical care while serving their sentence on HC. If frequent and ongoing medical care is required, Health Services staff coordinate with the BOP’s contracted community medical provider and the BOP’s Central Office to determine if the inmate’s medical needs can be met in the community. Documentation that each of the aforementioned tasks [was] performed must be included in the paperwork necessary to transfer an inmate to HC, and due to the lack of standardization of this documentation, most of the inmates referenced below needed to have this information added to their HC referral. However, BOP has recently standardized the process of documenting the performance of these tasks, and delays due to missing/insufficient BEMR documentation should no longer be a problem for HC referrals out of FCI Danbury.
ECF No. 267 at 2-3. The Warden continues:
A second factor impacting BOP’s ability to place inmates into HC within 14 days of approval is the clinically informed and empirically sound requirement that inmates test negative on a “PCR” or “swab” COVID-19 test prior to release to the community. The private laboratory FCI Danbury relies upon to provide test results that meet current “best practice” testing standards has been unable to provide us with results quickly enough to always allow a 14-day quarantine, although we have requested this laboratory place some priority on FCI Danbury tests. While the contractor seems amenable to prioritizing tests out of FCI Danbury, as recently as November 25th they informed us that recent increases in community-based testing may cause further delay in providing test results. However, given the AG’s direction that BOP not take “any” risk of transferring inmates to home confinement that will contribute to the spread of COVID-19, we reiterate the belief that we need to use the best-available means of testing inmates prior to redesignation even if it extends the quarantine period.
Finally, several other factors have arisen over the past few months impacting the ability to move inmates to HC as expeditiously as possible. First, the resumption of inmate movement throughout the agency has created a need to quarantine newly-arriving inmates at FCI Danbury before they can be placed into the general population. While strict adherence to this practice is responsible for the fact there have been no new cases of COVID within the general population for several months,5 quarantine space at FCI Danbury is severely limited and the space occupied by incoming inmates is not available to outgoing inmates (such as those transferring to HC) as it was prior to the resumption of inmate movement. Second, the female Special Housing Unit has been closed to facilitate
5 While the reference to “no new cases of COVID within the general population for several months” may have been accurate at thetime the Warden wroteher letter, it was obsolete by the time theclass filed themotion to enforceon December 6. See supra note 4.
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necessary improvements, further reducing the quarantine space available for inmates transferring to HC. Third, a recent update and migration of the BOP’s email system caused a number of HC referrals to be sent to the wrong location in the agency, impacting several inmates class counsel inquires about. Finally, FCI Danbury has temporarily lost three Case Managers due to unforeseeable personal circumstances; as Case Managers are pivotal to marshaling HC referrals through the agency, their absence has adversely affected the speed of HC redesignations.
Id. at 3. The Warden then provides specific explanations for the delays in releasing 12 inmates6
approved for home confinement, in which the general themes just described recur in individual
cases.
For example, the first inmate was approved for home confinement on September 16,
2020, but her “referral was returned during the routing process due to new BOP guidelines
requiring certain language in BEMR regarding the risk of COVID-19 in the community.” Id.
The referral for home confinement was received as of November 4, 2020, by the pertinent
Residential Reentry Manager’s Office (“RRM”), a separate BOP office located in various
regions and charged with placing inmates into the community for service of the remainder of
their sentences—usually in Residential Reentry Centers (“RRCs”), which are often called
“halfway houses.” 7 ECF No. 278-2 at 2. Because of “a potential electronic error due to recent
updates and migration of the email system[,]” however, the RRM did not provide a home
confinement release date—in this case, December 17, 2020—until November 30, 2020. Id. In
another case, an inmate was approved for home confinement on August 24, 2020. Id. at 4. This
inmate’s release was delayed due to outstanding Canadian charges that the BOP confirmed were
6 Of these 12 inmates, 11 overlap with the 17 inmates identified in ECF No. 282, whose individual cases are discussed in the Warden’s later-filed declaration. ECF No. 281 at 5-9. This is the same group of 17 inmates I ordered released in the December 11 order. 7 “RRCs are not BOP facilities and do not employ BOP staff; rather, they are private corporations with whom BOP contracts to providestructured assistance to federal inmates releasing to the community.” ECF No. 278 -2 at 3. RRCs run halfway houses and also supervise inmates released on home confinement. Id. Contractual arrangements limit the number of inmates a RRC can supervise at any given time. Id. Nearly all federal inmates who are released to home confinement—94 percent—are supervised by RRCs. Id.
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resolved on October 23, 2020, and because of the requirement that certain language be in the inmate’s BEMR. Id. The referral process continued on October 27, 2020, but because the RRM did not receive it, the RRM did not begin processing the referral until November 24, 2020. Id. Other reasons for delay in specific cases include security-related reviews; checks with law enforcement for outstanding warrants, detainers, or pending charges; denials of supervision by probation; quarantine constraints at FCI Danbury; and, in one case, the need to send ink fingerprints to the FBI. Id. at 4-6.
The Warden’s declaration, written on December 8, 2020 in response to the class’s motion to enforce, elaborates on the explanation provided in the December 1 letter and addresses the delays experienced by the 17 individuals the class contended were being held at FCI Danbury in violation of the Settlement Agreement. Specifically, the Warden explains:
As a preliminary matter, several events have happened in the instance of nearly every inmate set forth in this motion. First, most inmates had their home confinement referral returned during the routing process due to new BOP guidelines requiring certain language in an inmate’s Bureau Electronic Medical Record (“BEMR”) regarding the risk of COVID-19 in the community. Second, with respect to a smaller number of inmates, referrals were delayed due to an electronic error associated with recent updates and migration of the BOP’s email system, causing their home confinement referrals to be sent to an unmonitored mailbox. Lastly, the need to quarantine inmates f or 14 days and have them test “negative” on a polymerase chain reaction (“PCR”) COVID-19 test prior to release affected the ability to place these inmates into home confinement within 14 days of approval. ECF No. 281 at 3 (internal citations omitted). With respect to delays resulting from the requirement that the BEMR [i.e., the inmate’s medical record] contain certain language, the Warden explains that delays were initially caused by differences in interpretation among the BOP’s regional RRMs of Attorney General William Barr’s March 26, 2020 directive, which required the BOP, before releasing any inmate on home confinement, to “make an assessment of the inmate’s risk factors for severe COVID-19 illness, risks of COVID-19 at the inmate’s prison
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facility, as well as the risks of COVID-19 at the location in which the inmate seeks home confinement [based on CDC guidance].” Id. at 3 (quoting Attorney General William Barr, Memorandum for Director of Bureau Prisons (March 26, 2020), Ex. D to the Warden’s declaration). On November 16, 2020, the BOP adopted a uniform approach, requiring that any inmate approved for home confinement “be educated as to the best practices they might employ to avoid COVID-19 infection and that this education be documented in the inmate’s BEMR.” Id. The Warden further explains that because the issue has been clarified, “BEMR documentation should no longer be an issue for home confinement referrals coming out of FCI Danbury.” Id. With respect to delays caused by the agency’s migration to a new email system, which began in October 2020 and caused home confinement referrals to be sent to an unmonitored mailbox at a RRM’s Office,8 the Warden explains that she has “advised [her] staff of the need to ensure that referral packets are going to the proper mailboxes to ensure they route expediently through the RRO’s.” Id. at 4.
With respect to delays due to quarantine constraints, the Warden explains that “[i]t is a mandated BOP policy, one which was specifically preserved in the settlement of this case, that inmates being placed into home confinement quarantine for 14 days and then test ‘negative’ on a PCR COVID-19 test prior to release.” Id.9 Due to recent increases in community based testing, the “current wait time for lab results is approximately 5 to 7 days[]” despite the BOP’s request that tests from FCI Danbury receive priority. Id. The Warden continues as follows:
From the advent of this pandemic, the Attorney General explicitly directed BOP “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,” and
8 “To place an inmateinto home confinement, once the referral paperwork is completed at FCI Danbury, it is transmitted to the Residential Reentry Manager’s Office(‘RRO’) to approve theplacement of the inmate into the community.” ECF No. 281 at 4. 9 The statement that a 14-day quarantine was “specifically preserved in the settlement of this case” apparently refers to language in a Side Letter entered into in connection with the Settlement Agreement. I address this point below.
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this direction has not been rescinded. Given the Attorney General’s directive that BOP not take “any” risk of transferring inmates to home confinement that could contribute to the spread of COVID-19, the BOP is steadfast in the need to use a 14-day quarantine, as well as the best-available means of testing inmates, prior to release. These requirements may extend the amount of time needed to allow for a full quarantine or await the return of a negative PCR test result. Id. (citing AG Barr’s March 26, 2020 memorandum). Before discussing the individual cases of the 17 inmates approved for home confinement,10 the Warden notes that “[a]lthough several of the inmates listed below have been made eligible for furlough, the issuance of a furlough is a rare and exceptional event.” Id. (explaining the process for placing an inmate on furlough); see also 18 U.S.C. § 3622 (BOP’s statutory furlough authority); ECF No. 281 at 39 (Program Statement 5280.09 Inmate Furloughs, Ex. E to the Warden’s declaration) (“A furlough is an authorized absence from an institution by an inmate who is not under escort of a staff member, U.S. Marshal, or state or federal agents. . . . A [‘transfer furlough’ is a] furlough for the purpose of transferring an inmate from one Bureau facility to another, a non-federal facility, or community confinement (including home confinement) . . . .”). The Warden concludes the declaration as follows: Our experience has been that placing inmates into home confinement within 14 days is not always possible due to the complex situations that many inmates need to account for before they can be safely released to the community. In nearly every case in which staff at FCI Danbury have sought to transfer an inmate to home confinement, complications arising out of the ongoing COVID-19 pandemic have made it more difficult to coordinate the redesignation. Despite these complications, we have continued to endeavor to place inmates into home confinement within 14 days of approval, consistent with public health and the safety of the community.
10 Because theindividual explanations for delays in releasing each of the17 inmates are consistent with the general themes described in the Warden’s declaration, and are largely identical to thosedescribed in the Warden’s letter, I do not detail theseexplanations here.
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ECF No. 281 at 9. In fact, however, neither party has identified any class member approved for home confinement who was actually released to home confinement within 14 days of the approval for home confinement.
The Respondent also provided a declaration from Erik Anderson, the Eastern Sector Administrator of the Residential Reentry Management Branch at the BOP. ECF No. 278-2. Mr. Anderson’s declaration describes the process for placing an inmate into home confinement under the supervision of a RRC or a local United States Probation Office (“USPO”). Id. at 2. In brief, once an inmate is approved for home confinement, either by the Warden or by the Home Confinement Committee (“HCC”), the following steps occur before the inmate is released to home confinement under the supervision of a RRC: (1) the BOP prepares a “home confinement packet” containing the necessary paperwork for an inmate to be transferred to community custody, id. at 3; (2) the home confinement packet is sent via internal email to the RRO located where the inmate will be released, id.; (3) RRO staff reviews the packet for completeness including, for CARES Act placements,11 language in the inmate’s BEMR “accounting for the inmate’s risk of contracting COVID-19 in home confinement versus the risk if they were to remain in a BOP facility”, id.; (4) if the packet is incomplete, the RRO will return the packet to the sending institution for corrections, id.; (5) once the RRO determines that the packet is complete, and includes a requested placement date, the RRO transmits the packet to the RRC, id.; (6) RRC contractors then verify the suitability of the home confinement location and respond with an acceptance or denial of the packet; though the BOP’s pandemic response plan provides that such a response is due within 3 days of the RRC receiving the packet, the RRC is allowed 30 days to respond under its contract with the BOP, id.; and (7) the RRC (or the USPO, if it is
11 The CARES Act, adopted in March 2020 in response to the COVID-19 pandemic, expanded theBOP’s authority to release inmates to home confinement.
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conducting the supervision) conducts a review and investigation to ensure that certain principles of public safety are accounted for, id. at 5.
Should a RRC be unavailable, either because it does not serve a particular geographic area or because it lacks any further supervision capacity or otherwise cannot accept the inmate for placement, the USPO may be able to undertake the supervision under the “Federal Location Monitoring” program (“FLM”). Id. at 4. The FLM program is not offered in all districts and, where available, a particular inmate’s proposal for home confinement will be evaluated based on certain contractually-specified criteria except where, as here, the supervision is sought pursuant to “[s]pecial circumstances under provisional authorities granted by emergency legislation or otherwise authorized by act of Congress . . . .” Id.; see supra note 11. USPOs are provided 30 days to respond to a given request for supervision, but many have required more than 30 days because of “the exponential increase in community placements due to COVID-19.” Id. at 5. An inmate’s request may also be denied if the USPO does not have sufficient resources to take on the supervision, “for example where an inmate has too much time remaining on their sentence for the USPO to agree to supervise them for the remainder of their term.” Id. II. LEGAL STANDARD
A. Settlement Agreements “A settlement agreement is a contract that is interpreted according to general principles of contract law. Once entered into, the contract is binding and conclusive.” Powell v. Omnicom, 497 F.3d 124, 128 (2d Cir. 2007) (internal citation omitted). “It is customary, where Congress has not adopted a different standard, to apply to the construction of government contracts the principles of general contract law.” Priebe & Sons v. United States, 332 U.S. 407, 411 (1947). “[C]ontracts with the federal government are governed by federal common law, which
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incorporates the core principles of the common law of contrac t[s] that are in force in most states.” E.E.O.C. v. Fed. Express Corp., 268 F. Supp. 2d 192, 204 (E.D.N.Y. 2003) (citing Falls Riverway Realty, Inc. v. City of Niagara Falls, N.Y., 754 F.2d 49, 55 n.4 (2d Cir. 1985)) (internal citations and quotations marks omitted) (brackets in original). Because the Restatement (Second) of Contracts “represent[s] the ‘prevailing view’ among the states . . .”, the principles therein provide a source from which to “fashion a federal common law rule . . . .” Bowden v. United States, 106 F.3d 433, 439 (D.C. Cir. 1997).
B. Specific Performance As noted, under the Settlement Agreement, “[i]f Petitioner [i.e., the class] prevails on any claim alleging Respondent’s [i.e., the Warden’s] or BOP’s non-compliance with this Agreement, the sole remedy shall be specific performance of this Agreement. ” ECF No. 238-1 at 16. “Specific performance is by definition limited to the enforcement of contract duties.” Restatement (Second) of Contracts ch. 16, topic 3, intro. note (Am. Law Inst. 1981). Where damages are inadequate “to protect the expectation interest of the injured party ”, id. § 359, and “the terms of the contract are sufficiently certain to provide a basis for an appropriate order”, id. § 362, “specific performance of a contract duty will be granted in the discretion of the court against a party who has committed or is threatening to commit a breach of the duty[,]” id. § 357; see also id. §§ 359-69 (discussing how certain factors affect the availability of specific performance). “An order of specific performance or an injunction will be so drawn as best to effectuate the purposes for which the contract was made and on such terms as justice requires. ” Id. § 358(1). The order “need not be absolute in form and the performance that it requires need not be identical with that due under the contract.” Id. The commentary to the Restatement elaborates on the court’s flexibility in crafting an order of specific performance:
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The objective of the court in granting equitable relief is to do complete justice to the extent that this is feasible. Under the rule stated in Subsection (1), the court has the power to mold its order to this end. The form and terms of the order are to a considerable extent within the discretion of the court. . . . It may command a performance by the party in breach that is not identical with the one that he promised to render. It may indirectly induce the party in breach to do an act by enjoining him from doing inconsistent acts. See § 357(2)(b). Id. § 358 cmt. a. III. DISCUSSION As noted, in the Settlement Agreement, the BOP agreed to “endeavor to release individuals approved for home confinement to home confinement within 14 days of the approval decision unless public safety or the absence of any home in which to place the inmate would make it unsafe to move the inmate to home confinement within that fourteen day period.” ECF No. 238-1 at 11-12. None of the parties contend that this provision is ambiguous or invalid, none contest the court’s jurisdiction to enforce the Agreement, and none dispute any facts material to the disposition of the class’s motion. Further, the parties agree that my authority to grant specific performance of the Agreement entails the authority to order the Warden to release one or more of the 17 inmates to home confinement by a particular date.12 Thus, as the Government notes, “[t]he issue before the Court is whether this [14-day] provision of the Settlement Agreement has been violated to warrant an order of specific performance.” ECF No. 278 at 1. The class argues that the Warden and the BOP have not “endeavor[ed]” to release inmates on home confinement within 14 days of approval because the reasons for delay provided by the Warden are not permissible under the Settlement Agreement, i.e., they do not constitute a “public safety” concern or a lack of a home to go to warranting delay beyond 14 days. ECF No. 263 at 1-2. By contrast, the Warden and the BOP’s position is that they have “endeavored to
12 The parties confirmed this agreement at oral argument on the motion to enforce during the telephonic status conference of December 10, 2020.
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meet this 14-day target . . .” and that “pre-release quarantine requirements and supervision[-] related administrative requirements are legitimate public safety reasons that can permit release delays beyond 14 days, consistent with Section 11 [of the Settlement Agreement].” ECF No. 278 at 1-2. For the reasons that follow, I agree with the class and find that the Warden and the BOP have not “endeavor[ed]” to meet the Settlement Agreement’s 14-day release target, and that their pre-release quarantine requirements and supervision-related administrative requirements do not constitute “public safety” concerns that would permit a delay beyond 14 days within the meaning of the Settlement Agreement.13
Because the parties’ dispute turns on the meaning of “endeavor” and “public safety”, I begin with definitions. To “endeavor” means to “try hard to do or achieve something.” Endeavor, New Oxford American Dictionary; see also Endeavor, Black’s Law Dictionary (11th ed. 2019) (“[t]o exert physical or intellectual strength toward the attainment of an object or goal.”); Endeavor, Merriam-Webster Online Dictionary (defining “endeavor” to mean “to attempt (something, such as the fulfillment of an obligation) by exertion of effort” ), https://www.merriam-webster.com/dictionary/endeavor (last accessed December 17, 2020); Endeavor, Dictionary.Com (“to exert oneself to do or effect something; make an effort; strive.”), https://www.dictionary.com/browse/endeavor?s=t (last visited December 20, 2020). “Public safety” is defined to mean “[t]he welfare and protection of the general public, usu [ally] expressed as a governmental responsibility . . . .” Public Safety, Black’s Law Dictionary.
The use of the verb “endeavor” does not create uncertainty as to the Warden’s and the BOP’s time of performance; the contract remains sufficiently certain “to provide the basis for
13 The parties also disagree about theextent to which the May 12, 2020 TRO was incorporated into t he Settlement Agreement. Because I find that Respondent breached the plain terms of the Settlement Agreement, I need not, and do not, decide this issue.
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giving an appropriate remedy.” Restatement (Second) of Contracts § 362 cmt. a.; see also id. § 33(2) (“The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.”). That is so because, here, the word “endeavor” is followed by a specific time limit—14 days—, as well as reasonably clear exceptions (public safety and the absence of a home), against which the “endeavor[ing]” can be measured. This is a good deal more definite than many time-based performance standards found in other enforceable contracts. See Restatement (Second) of Contracts § 33 cmt d. (“Uncertain time of performance. Valid contracts are often made which do not specify the time for performance.); id. cmt. d., illus. 3 (“A and B promise that certain performances shall be mutually rendered by them ‘immediately’ or ‘at once,’ or ‘promptly,’ or ‘as soon as possible,’ or ‘in about one month.’ All these promises are sufficiently definite to form contracts.”).
Here, the BOP agreed to “endeavor to release individuals approved for home confinement to home confinement within 14 days of the approval decision . . . .” ECF No. 238-1 at 11-12 (emphasis added). The Respondent has a contractual obligation to perform that duty “unless public safety or the absence of any home in which to place the inmate would make it unsafe to move the inmate to home confinement within that 14 day period.” Id. at 12 (emphasis added). It bears emphasizing that each of these exceptions—a “public safety” concern or the “absence of any home”—is a permissible reason to delay release only if either exception “would make it unsafe to move the inmate to home confinement within that 14 day period.” Id. (emphasis added). So, for example, if an inmate approved for home confinement did not have a home to go to on day 14, the Respondent may delay release until such a home is found. But if a home were found for this hypothetical inmate on day 15, the Respondent would be obligated to “endeavor” to release that inmate to home confinement immediately because the 14-day period
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had expired (assuming no “public safety” concern existed). The same would be true were any inmate’s release to home confinement delayed beyond 14 days based on a permissible “public safety” concern: As soon as that concern was resolved, the Respondent would be obligated to “endeavor” to release that inmate to home confinement immediately.
When the Warden’s letter and declaration are viewed in the light of these principles, it becomes clear that she and the BOP have not been “try[ing] hard,” “exert[ing] physical or intellectual strength”, or “striv[ing]” to effectuate the releases of the 17 inmates that are the subject of the class’s motion within 14 days of their approval for home confinement. As described above, the Warden provides various reasons for the delays—which, when the class filed its motion to enforce, ranged from 27 days to 104 days after approval for home confinement by the BOP’s Home Confinement Committee. See ECF Nos. 265, 281. Most of the reasons offered by the Warden to justify delaying release over the past several months do not comport with her and the BOP’s commitment to “endeavor” to release the inmates within 14 days; and by the time I issued the December 11 specific performance order, no reason comporting with that commitment remained to further delay the release of the 17 inmates.
In most of the 17 cases, the Warden notes that, after approval by the Home Confinement Committee, “the referral [for home confinement] was returned during the routing process due to new BOP guidelines requiring certain language in the [the inmate’s medical record] regarding the risk of COVID-19 in the community.” ECF No. 281 at 3; see also ECF No. 267 at 2-3. This apparently refers to pre-release steps the BOP is now taking to account for the risk that the inmate will contract COVID-19 while on home confinement, all of which must be now be documented in the inmate’s medical record, and includes things like educating the inmate about how to protect against infection by COVID-19. Id. While these steps are laudable, and while it
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is sensible to document them in the inmate’s medical record, they are not a basis to delay release to home confinement under the Agreement, because they do not concern “public safety” or the
absence of a home for the inmate, and treating them as a basis for such delay is inconsistent with the BOP’s obligation to “endeavor to release” within 14 days of approval for home confinement.
In general, inmates face a substantially greater risk of contracting COVID-19 while incarcerated than they do while living at home.14 The inmates at FCI Danbury certainly do: the current
number of infections among Danbury inmates suggests a substantially greater positivity rate than among the population of Fairfield County, where the prison is located .15 Under these
circumstances, it is perverse to delay the release of inmates until notations in their medical record have been made about efforts to protect them when they leave prison. And the need to make
notations in the inmate’s medical record has nothing to do with protecting the public or ensuring that an inmate has a home to release to. Likewise, the delays in processing a home confinement
packet/referral after it is approved due to electronic or administrative errors that, in some cases, went undetected for nearly a month, or delays due to making any kind of comparative risk
assessment of an inmate’s chances of contracting COVID-19, are unrelated to public safety or a home to go to and do not constitute permissible reasons to delay release under the Agreement.
Accordingly, in the December 11 order, I ordered tha t, going forward, the BOP and the Warden could not delay releasing an inmate beyond 14 days after approval by the Home Confinement
14 See Brendan Saloner et al., COVID-19 Cases and Deaths in Federal and State Prison, J. of the Am. Med. Ass’n (July 8, 2020), https://jamanetwork.com/journals/jama/fullarticle/2768249 (as of June 6, 2020, concluding that: (1) the “COVID-19 case rate for prisoners was 5.5 times higher than the US population caserate. . .”; (2) the “crude COVID-19 death ratein prisons was 39 deaths per 100 000 prisoners, which was higher than theUS population rate of 29 deaths per 100 000”; and (3) the “mean daily casegrowth rate was 8.3%per day in prisons and 3.4% per day in the US population”between March 31, 2020, to June 6, 2020). 15 Even if the current number of 95 active infections reflected testing of all 862 inmates at FCI Danbury—a generous assumption, as there is nothing in the record to suggest that all Danbury inmates havebeen tested recently —, the positivity ratewould be about 11%—a good deal higher than the 7.8% positivity rate currently being reported for Fairfield County. See supra note 3; see also https://www.covidactnow.org/us/connecticut-ct?s=1460419 (last visited on December 21, 2020).
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Committee on any of these grounds, and set deadlines aimed at minimizing delays caused by the need for FCI Danbury to coordinate with RRMs. See ECF No. 289 at 3.
The Warden cites as another reason for delay the need to quarantine inmates and to test them for COVID-19 before releasing them to home confinement, and the delays in getting test results. In support of its position that all inmates must quarantine for 14 days and then receive a negative PCR COVID-19 test (which, given the 5-7 day wait for test results, see ECF No. 281 at 4, extends any pre-release quarantine from 14 days to between 19 and 21 days), the Warden states it is a “mandated BOP policy,” citing Attorney General Barr’s March 26, 2020 memorandum, and one that was “specifically preserved in the settlement of this case.” For the latter statement, the Warden is apparently relying on the Side Letter, because the Settlement Agreement itself says nothing about preserving a mandatory 14-day quarantine period. The Side Letter, which was entered into in conjunction with the Settlement Agreement, states that “it is BOP policy that all inmates who are approved for home confinement or residential reentry center placement be quarantined for 14 days prior to release from FCI Danbury[.]” But the same paragraph provides that inmates approved for home confinement “may seek a waiver of the 14day quarantine requirement . . .”, indicating that the Warden has discretion to refrain from requiring an inmate approved for home confinement to quarantine for 14 days before releasing that inmate to home confinement. ECF No. 138-1 at 3. In any event, the Side Letter is a unilateral statement of intent by the BOP about hygiene and other safety -related measures it expects to take while the Settlement Agreement remains in effect; the class is not a party to the Side Letter, and the Side Letter expressly states that it is not part of the Settlement Agreement. Id. It thus cannot qualify the BOP’s and the Warden’s agreement to “endeavor” to release inmates within 14 days of approval of home confinement. Finally, with regard to Attorney
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General Barr’s March 26, 2020 memorandum, the Warden neglects to mention his subsequent April 3, 2020 memorandum, which directs the BOP, and FCI Danbury in particular, to “immediately process [all inmates approved for home confinement] for transfer and then immediately transfer them following a 14-day quarantine period at an appropriate BOP facility, or, in appropriate cases subject to your case-by-case discretion, in the residence to which the inmate is being transferred.”16
Further, although I agree that minimizing the risk that inmates being released on home confinement are COVID-positive is consistent with protecting the public safety, it is far from clear that FCI Danbury’s requirement of quarantine plus testing for those approved for home confinement is enhancing the public’s safety. Current CDC guidance suggests that it would not be necessary to test these inmates at all if they were placed in a proper quarantine—either at home or while still incarcerated.17 It is unclear whether the BOP is making attempts— endeavoring—to determine whether inmates approved for home confinement can safely quarantine at home, an option expressly left open by the Attorney General’s April 3 memo and one the TRO specifically required the BOP to explore. See ECF No. 30 at 71. The class has also presented some evidence suggesting that the quarantine arrangements at Danbury are not ideal, see ECF No. 263 at 13-14; ECF No. 270 at 1-3; ECF No. 279 at 1; see also Federal Bureau of Prisons, COVID-19 Update, https://www.bop.gov/coronavirus/index.jsp (last accessed December 18, 2020) (reporting 95 inmates infected with COVID-19, one inmate death from
16 Federal Bureau of Prisons, Memorandum for Director of Bureau of Prisons from Attorney General William Barr: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (April 3, 2020) (emphasis added), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf. 17 See When to Quarantine, Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/quarantine.html (stating that people who have been in close contact with someone who has COVID-19 should quarantine at home “for 14 days after [the] last contact with a person who has COVID-19 . . .”; and that one option to reducequarantine timeis to “stop[] quarantine . . . [a]fter day 10 without testing . . . .”) (last accessed December 18, 2020).
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COVID-19, and 82 inmates and 69 staff recovered from COVID-19), and that some inmates have become exposed to COVID while in quarantine.18 Others have been exposed while waiting to enter quarantine from the general population due to constraints on quarantine space that have no doubt been exacerbated by the practice of keeping inmates in quarantine far longer than required under CDC guidelines.19 All this defeats the purpose of the quarantine. Further, while the CDC has suggested that quarantine can be shortened when it is combined with testing, that will work only if test results are obtained promptly , which is apparently not the case here given a 5-7 day waiting period for test results. If quarantine is ineffective, there is no point in delaying release due to quarantine, especially given the possibility of a home-based quarantine; and if quarantine is effective, then there is no point in extending it by 5 to 7 days of testing return time. Similarly, limitations on quarantine space for outgoing inmates should not be a basis for delaying release, at least not until other options, like quarantining at the place of home confinement, have been exhausted. Thus, in the order of specific performance, I prohibited the BOP from delaying release to home confinement based on either (1) the need to quarantine an inmate at FCI Danbury unless the BOP found, for specific reasons, that the inmate could not safely quarantine at home, or (2) the need to await COVID-19 test results or to further quarantine an inmate if the inmate had quarantined for 14 days at FCI Danbury and was not showing symptoms of COVID19. ECF No. 289 at 3.
18 After the December 11 order was entered, the Government reported to chambers, via email, that two of the 17 class members I ordered released had received positiveCOVID-19 tests after entering quarantine. These individuals were K.C., who entered quarantine on December 7, 2020, ECF No. 265 at 2, and R.G., who entered quarantine on December 1, 2020, id. at 3. One of thesehad already been released, and I directed both sets of counsel to contact this individual to ensure sheunderstood she had tested positive. The second had not been, and I allowed theWarden to delay release until the inmatetested negative. 19 Some of the BOP’s constraints on quarantine space are understandable and do not, by themselves, provide grounds for a finding that theRespondent breached the settlement agreement. These include the efforts to quarantine incoming inmates, the closure of the women’s SHU due to construction or repair, and thetemporary loss of Case Managers. See ECF No. 281 at 3.
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By the time the class filed its motion, the Warden was continuing to hold the 17 inmates only because of the extended quarantine and testing requirements or, in a few cases, because the other types of delays described above had postponed the period of quarantine until at least several weeks after the approval for home confinement, with the BOP making no documented effort to determine if the inmate could quarantine safely in the home. One of the 17, discussed below, was held for 104 days from the date o f approval of her home confinement; another was held for 88 days,20 two others were held for 83 days, and two others for 81 days. ECF No. 282. Because the reasons for the delay in their release were not consistent with the BOP’s and the Warden’s promise to “endeavor” to effectuate release within 14 days of approval for home confinement, I concluded that the Warden and the BOP had breached the Settlement Agreement and ordered these inmates to be released. The December 11 order required Respondent to release each of the 17 inmates (identified in ECF Nos. 265 and 282) by 5:00 p.m. on Saturday December 12, 2020. In addition, the order required the Warden and the BOP, going forward, to explain to class counsel within 5 days of the expiration of the 14 -day period any delays (and a plan to resolve them) beyond the 14 days. Such explanations will help fulfill the purpose of the Agreement and realize the BOP’s and the Warden’s promise to “endeavor” to meet the 14-day release target. It will also facilitate judicial review in the event of further disputes.
Following the entry of the order of specific performance, I also ordered that one inmate be released to the care of class counsel on furlough while the BOP works to approve a community supervision plan for this inmate. I did so for several reasons. First, this inmate was
20 This inmate, C.F., was listed in motion to enforce as having been approved for home confinement on 10/6/2020. ECF No. 265. However, this date was based on the date class counsel received C.F.’s home confinement approval paperwork. Id. In the Warden’s declaration, she clarifies that C.F. was approved for home confinement on 9/9/2020, and therefore had been waiting to be released on home confinement for 88 days as of December 6, 2020, not 61 days. SeeECF No. 281 at 8 ¶ 25.
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approved for home confinement on August 24, 2020 and had been waiting 104 days to be released on home confinement as of December 6, 2020. ECF No. 265 at 2. For the reasons described above, the Respondent provided no permissible reason under the Agreement to delay release of this inmate for that period, and plainly was not “endeavor[ing]” to release her within 14 days. In addition, this inmate’s proposed place of home confinement became unavailable after I entered the order of specific performance, apparently through no fault of her own, and class counsel offered reasonable grounds to find that a feasible supervision plan could be put in place before the expiration of the 30-day furlough. The BOP has the authority to grant an inmate furlough for the purpose of transferring the inmate to home confinement and may do so without a pre-approved supervision plan. See 18 U.S.C. § 3622(a), (6) (authorizing the BOP to temporarily release an inmate from the place of imprisonment, under certain conditions, to, inter alia, allow an inmate to “visit a designated place for a period not to exceed thirty days, and then return to the same or another facility, for the purpose of . . . engaging in any other significant activity consistent with the public interest . . . .”); see also ECF No. 281 at 39 (Program Statement 5280.09 Inmate Furloughs, Ex. E to the Warden’s declaration) (“A furlough is an authorized absence from an institution by an inmate who is not under escort of a staff member, U.S. Marshal, or state or federal agents. . . . A [‘transfer furlough’ is a] furlough for the purpose of transferring an inmate from one Bureau facility to another, a non-federal facility, or community confinement (including home confinement) . . . .”). The purpose of the December 14 furlough order is to transfer the inmate to home confinement and, in any case, I find that the furlough itself is a “significant activity consistent with the public interest . . .”, 18 U.S.C. § 3622(a)(6), namely to protect the health of a medically vulnerable inmate approved for home confinement and who had already been put at undue risk of infection.
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The December 11 order of specific performance was written to “best [] effectuate the purposes for which the [Settlement Agreement] was made and on such terms as justice requires.” Restatement (Second) of Contracts § 358(1). In addition, though the performance mandated by the order is not identical to the BOP’s and the Warden’s duties under the Settlement Agreement, ultimately the order does no more than require the BOP and the Warden to refrain from acting inconsistently with their contractual obligations. See id. § 358 cmt. a. I also note that the finding supporting the December 11 order of specific performance is narrow—I find only that the prerelease quarantine requirements and supervision-related administrative requirements described by the Warden do not constitute “public safety” concerns or the absence of a home to go to under the Settlement Agreement, and that, based on the undisputed facts presented by the parties, the BOP has not “endeavor[ed]” to release inmates within 14 days after approval for home confinement. This opinion and the December 11 and 14 orders do not set forth any “bright-line” rule that any delay beyond 14 days, where no public safety or lack of a home would otherwise permit delay, constitutes a breach of the terms of the Settlement Agreement. I need not decide that question, i.e., the extent to which the term “endeavor” gives the BOP flexibility in its contractual time of performance when it is sincerely undertaking exertions of effort to meet the 14-day target. I decide only that, given the undisputed facts before me, the Warden and the BOP breached the Settlement Agreement and the specific performance I ordered on December 11 and 14 is appropriate and warranted.
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IV. CONCLUSION For the reasons and to the extent stated above, I granted Petitioner’s motion to enforce the
Settlement Agreement (ECF No. 263) and entered the December 11 and 14 orders. (ECF Nos. 289, 294).

Dated:

Hartford, Connecticut December 22, 2020

/s/ Michael P. Shea, U.S.D.J.

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 Case 3:20-cv-00569-MPS Document 332 Filed 01/19/21 Page 1 of 23

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES WHITTED, individually, and on behalf of all others similarly situated,
Petitioner, v.
DIANE EASTER, Warden of Federal Correctional Institution at Danbury in her official capacity,
Respondent.

No. 3:20-cv-00569 (MPS)

ORDER OF SPECIFIC PERFORMANCE OF CLASS SETTLEMENT AGREEMENT In September 2020, I approved a settlement of this class action brought by inmates of
Federal Correctional Institution Danbury (“FCI Danbury”) whose medical conditions make them vulnerable to serious illness from COVID-19. Under the settlement, the Warden of FCI Danbury and the U.S. Bureau of Prisons (the “BOP”) agree to review class members to determine whether to transfer them to home confinement due to the risks associated with COVID-19 using a process outlined in the Settlement Agreement. The Settlement Agreement provides that I retain jurisdiction to resolve disputes that arise between the parties by issuing orders of specific performance. This ruling resolves a series of disputes that have arisen concerning the standards the BOP is using to review inmates for home confinement, the adequacy of the explanations it is providing to support decisions to deny transfers to home confinement, and other matters. In particular, the class has filed a motion for enforcement of the settlement agreement that asks me, among other things, to bar the BOP from relying on certain factors that the class contends are not relevant to the issues of inmate and public safety on which the BOP should be focusing in the

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home confinement review process mandated by the Settlement Agreement. ECF No. 296. These

factors include things like non-violent disciplinary infractions and the percentage of time an

inmate has served. After considering the parties’ memoranda and associated exhibits, and the

January 8 oral argument, I grant in part and deny in part the class’s motion for the reasons and to

the extent set forth below.

I assume familiarity with the factual and procedural background of this case as set forth

in the Ruling on Motion for Temporary Restraining Order and Motion to Dismiss, ECF No. 30,

the Settlement Agreement, ECF No. 238-1, the first Order of Specific Performance and

associated memorandum, ECF Nos. 289, 304, and the submissions relating to the class’s second

motion to enforce the Settlement Agreement, ECF Nos. 296 -305, 307-08, 310-13, 319-23. I also

incorporate by reference the legal standards set forth in the memorandum supporting the first

Order of Specific Performance. ECF No. 304 at 3 n.1 (jurisdiction); id. at 13-15 (settlement

agreements, specific performance). I address the specific issues raised in the class’s motion to

enforce the Settlement Agreement below.

I.

DISCUSSION

A. The BOP’s Home Confinement Decisions Often Do Not Reflect Application of the Correct Standard

The class seeks a series of orders about the factors the BOP may rely on in making home

confinement decisions, among which are orders that would direct the BOP to “[c]onsider all

CDC [r]isk factors as valid risk factors that render a home confinement applicant medically

vulnerable . . . and [afford] all CDC [r]isk factors ‘substantial weight’ in any home confinement

decision”; “[e]xplicitly consider an individual’s age as a CDC risk factor”; “[n]ot rely in home

confinement decisions on a ‘Low’ PATTERN Score as a basis to deny home confinement to

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class members”1; “[n]ot rely in home confinement decisions on factors that are only tangentially related to public safety, including percentage of time served or recent disciplinary history that is both non-violent and non-sexual”. ECF No. 296 at 33-34. More generally, the class argues that the “statement of reasons on the BOP’s worksheets [generated during the home confinement review process] often fail to evidence that the BOP has engaged in any balancing between public safety and inmate safety . . . .” Id. at 1. The class has submitted a large volume of worksheets reflecting recent denials of home confinement and generated in the home confinement review process contemplated by the Settlement Agreement. By contrast, the Warden and BOP (collectively, the “BOP”) assert that the Settlement Agreement does not limit the BOP’s discretion as to either its substantive judgment in individual home confinement decisions or its judgment as to which considerations bear on public safety or an inmate’s suitability for home confinement. ECF No. 310 at 1. As to several of these issues, I agree with the class that the BOP’s decisions as reflected in the worksheets do not co mply with the standards required by the Settlement Agreement. I begin with a general discussion of the standards for the home confinement review process required by the Settlement Agreement and my role in enforcing those standards, and then proceed to the specific issues in dispute.
1. Standards for Home Confinement Review and Judicial Enforcement Contemplated by the Settlement Agreement
The Settlement Agreement makes clear in several places that “the provisions of the May 12, 2020 TRO” (“TRO”) govern the BOP’s home confinement reviews. See ECF No. 238-1 ¶ 3 (requiring all List Two inmates to be reviewed for home confinement “pursuant to” the Attorney General’s memoranda, current BOP guidance, “and the standards set forth in the May 12, 2020
1 As discussed below, PATTERN is a risk assessment tool used by the BOP to estimate the risk of recidivism.
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TRO”, but stating that “to the extent” the latter standards differ from the Attorney General’s memos or the current BOP guidance, “the provisions of the May 12, 2020 TRO shall control”; and “BOP agrees to have [its Home Confinement Committee (“HCC”)]] make a home confinement determination based upon the standards set forth in the May 12, 2020 TRO.”); id. ¶ 6 (same for non-list inmates who are added to class). The May 12, 2020 TRO was issued as preliminary relief in a habeas petition brought by the class claiming, among other things, that the Warden at FCI Danbury was failing to protect inmates from the risk of severe illness or death posed by COVID-19 in violation of the Eighth Amendment, in particular, by failing to use her expanded authority under the March 2020 CARES Act to place inmates on home confinement.
The TRO requires the Warden at FCI Danbury to “assign[] substantial weight in [the home confinement review] to the inmate’s risk factors for COVD-19 based on CDC guidance”, and to eliminate “all requirements” that (1) “the inmate have served some portion of his or her sentence . . .”, (2) “a ‘primary or prior offense’ not be a violent offense . . .”, and (3) “the inmate be ‘without incident reports in the past 12 months (regardless of severity level)’”. ECF No. 30 at 71. A footnote elaborates on the elimination of these “requirements,” stating “I do not mean to suggest that these considerations are irrelevant to the Warden’s assessment of the appropriateness of home confinement for a particular inmate [,]” and noting, as an example, that an inmate’s violent history “is obviously relevant to the assessment of the danger his or her release might pose to the public and thus should be accorded weight in the determination.” Id. n.33. The footnote then states: “The purpose of eliminating these and other categorical exclusions is to the make the process more individualized and more amenable to a proper and reasonable balancing of inmate safety and public safety.” Id. (emphasis added).
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The concept of balancing public safety against inmate safety in the home confinement review process is a recurring theme in the opinion accompanying the TRO. The introduction to the opinion states: “I grant in part the inmates’ motion for a temporary restraining order and issue an order that requires the Warden . . . to adopt a process that is . . . more clearly focused on the critical issues of inmate and public safety than the current process.” ECF No. 30 at 2; see also id. at 57 (“Petitioners have made a preliminary showing that, in these circumstances, the Eighth Amendment requires that the [home confinement determination] be made promptly and tha t it focus on the critical issues of inmate and public safety.”); id. at 68 (“The temporary restraining order that follows is aimed at . . . focusing that process [for evaluating inmates for home confinement] on achieving a ‘reasonable’ balance between the risks to inmate safety and the risks to public safety.”).
It is thus clear that, in adopting the standards of the May 12, 2020 TRO, the Settlement Agreement requires the BOP to balance inmate safety against public safety and, in that balancing process, to “assign substantial weight” to the inmate’s COVID-19 risk factors when making decisions on whether to transfer an inmate to home confinement. Contrary to the BOP’s argument, this requirement is not a mandate (or a license) for the BOP to consider the “totality of the circumstances” – a term that appears nowhere in the TRO, the underlying opinion, or the Settlement Agreement.2 Instead, it directs the BOP to weigh certain factors – those related to inmate safety and public safety – and not others, and directs it to accord a specified albeit
2 The term does appear in former Attorney General Barr’s March 26 memorandum. See ECF No. 281 at 33 (directing that “home confinement [should be gra nted] only when BOP has determined—based on the totality of the circumstances—that transfer to homeconfinement is likely not to increase theinmate’s risk of contracting COVID19.”). But as noted, the Settlement Agreement requires the BOP to follow theTRO’s standards to the extent there is a conflict with the Attorney General’s March 26 memorandum.
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imprecise quantity of weight – “substantial weight” – to a set of inmate-safety-related factors, i.e., COVID-19 risk factors.
The BOP argues that it has broad discretion to define what “public safety” means in this context and can thus rely on a wide range of considerations in making home confinement decisions. It points out that the Settlement Agreement provides that the BOP’s “substantive determination of whether to place any particular member of the Medically Vulnerable Class on home confinement shall not be subject to judicial review, except that the Court may order the BOP to have [it] reconsider a home confinement denial that is based upon erroneous factual underpinnings . . . or a failure to comply with the terms of the Agreement, and may compel specific performance of the Agreement.” ECF No. 134-1 at 17. The Settlement Agreement’s assignment to the BOP of the task of reading the scale, however, is not a grant of authority to determine the ingredients of the items to be weighed.3 In other words, “public safety” does not mean whatever the BOP says it means. To the contrary, as used in the TRO, the underlying opinion, the Settlement Agreement, and former Attorney General Barr’s memoranda, “public safety” has a specific meaning, i.e., an immediate danger to the public from the release of an inmate into the community.
The term “public safety” appears in the TRO in the footnote quoted above . See ECF No. 30 at 71 n.33. The example immediately preceding the sentence in which the term appears discusses an inmate with a “violent history[,]” id.—obviously, an inmate with an active
3 Neither is 18 U.S.C. § 3624, the statute that governs the BOP’s exercise of its authority to transfer inmates to home confinement during the final portion of their sentence. After the CARES Act expanded that authority to allow the BOP to make such transfers during any portion of an inmate’s sentence, I found, on a preliminary basis in the TRO ruling, that the BOP was not exercising that authority in compliance with the Eighth Amendment. Thereafter, the parties entered into the Settlement Agreement, which both released the BOP from my preliminary finding and bound it to new, more specific obligations pertaining to home confinement transfers. It is the Settlement Agreement, not Section 3624, that defines the parameters of the home confinement review process for members of the class.
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propensity for violence presents an immediate danger to the public if he is released.4 The underlying opinion confirms that “public safety” is focused on immediate danger to the public. The opinion describes the requirement of serving a specified percentage of a sentence and the presence of an incident report “no matter the seriousness” as “at best, only tangentially related to public safety,” ECF No. 30 at 48, because neither of those circumstances presents an immediate threat to the public. The Settlement Agreement uses “public safety” in the same sense of immediate danger: it requires the BOP to “endeavor” to transfer individuals approved for home confinement to home confinement within 14 days of approval “unless public safety or the absence of any home in which to place the inmate would make it unsafe to move the inmate to home confinement within the 14 day period.” ECF No. 238-1 ¶ 11. “Public safety” in that context plainly is not referring to things like the portion of the sentence served or minor disciplinary infractions. Finally, the Attorney General’s April 3 memorandum uses “public safety” to describe a danger that might be mitigated by the electronic monitoring of an inmate. In that document, the Attorney General authorized the BOP to transfer inmates to home confinement “even if electronic monitoring is not available, so long as BOP determines in every such instances that doing so is appropriate and consistent with our obligation to protect public safety.”5 The memorandum elaborates that protecting public safety means protecting against the “risk[] to the public from released prisoners engaging in additional criminal activity, potentially
4 Other inmates whose profiles would present obvious risks to the public safety include those with recent conduct demonstrating an active propensity for distributing dangerous drugs, illegally possessing firearms, or engaging in sex-related offenses. Another obvious example would be the risk that an inmate infected with COVID-19 might infect members of the public. By listing these examples, I do not intend to be exclusive. But the farther removed an inmate’s offense of conviction, criminal or disciplinary history, or other circumstances are from presenting an immediate danger to the public, the more the BOP will need to explain its conclusion that those circumstances are related to public safety. 5 Federal Bureau of Prisons, Memorandum for Director of Bureau of Prisons from Attorney General William Barr: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (April 3, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf.
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including violence or heinous sex offenses.”6 In short, the consistent use of the term “public
safety” in the Settlement Agreement, the TRO, and related documents shows that it has a fixed,
clear meaning that is not amenable to expansion by the BOP.
Given all this, I conclude that the Settlement Agreement permits a finding by the Court
that the BOP is “fail[ing] to comply with the terms of the Agreement” in cases in which the
worksheet documenting the home confinement review, when read as a whole,7 does not make
clear that the BOP has made an effort to (1) balance the inmate’s safety against public safety,
properly understood as meaning immediate danger to the public from release of the inmate, and
(2) assign “substantial weight” to the “inmate’s risk factors for COVD-19 based on CDC
guidance”. On the other hand, the Settlement Agreement does not permit such a finding when
the Court (or class counsel) disagrees with the product of the BOP’s effort, for example, because,
in the Court’s or class counsel’s view, the BOP has struck the balance incorrectly or given too
much weight to public-safety-related factors.
In its motion to enforce, the class seeks several specific orders from the Court. See ECF
No. 296 at 33-35. After oral argument and through the parties’ filings, it is apparent, based on
agreements reached by the parties, that some of the issues raised are now moot.8 I address the
remaining issues below.
6 Id. 7 I discuss in greater detail below the Settlement Agreement’s requirements regarding the length and quality of the explanation. 8 Specifically, the parties agreed: (1) that the Warden and BOP are required to list and consider all of a class member’s CDC risk factors on that individual’s home confinement review sheet; (2) that the Settlement Agreement requires a re-review for home confinement where an inmate’s worksheet does not list one or more that individual’s Tier I or Tier II risk factors, except in limited circumstances (i.e., where an error or mistake of fact is not material, see ECF No. 134-1 at 12); (3) that the Warden and BOP are required to re-review inmates who were approved for placement in an RRC but were denied home confinement without any explanation; and (4) to work collaboratively to identify the facts underlying individual home confinement denials, where such facts are not apparent from the face of the worksheet and not otherwise obtainable from the individual or his or her criminal docket. Thus, the requests for relief in sections (a)(iii), (b)(i), and (c) are DENIED as moot. See ECF No. 296 at 33-35. In addition, the
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2. CDC Risk Factors
The parties disagree about whether the BOP is properly considering all CDC risk factors
and giving “substantial weight” to these factors as required by the Settlement Agreement.
Specifically, the class seeks an order directing the BOP to “[c]onsider all CDC Risk factors as
valid risk factors that render a home confinement applicant medically vulnerable, including Tier
II conditions, and that all CDC Risk factors are to be afforded ‘substantial weight’ in any home
confinement decision”. ECF No. 296 at 33 ¶ (a)(i). “Tier II conditions,” or Tier II risk factors,
refer to medical conditions that, according to the CDC, might place a person at a higher risk of
developing severe illness from COVID-19. By comparison, Tier I risk factors are conditions
that, according to the CDC, do place a person a higher risk of developing severe illness as a
result of COVID-19.9
The core of this dispute is focused on the following language that appears on many of the
worksheets in which the BOP has denied home confinement to an inmate – usually an inmate
who has only Tier II risk factors: the inmate “does not have any risk factors that would put
him/her at a higher risk of developing severe illness as a result of COVID-19 based on CDC
guidelines.”10 On its face, this language appears to contradict other portions of the worksheet
listing the CDC risk factors.11 More generally, it is inconsistent with the idea that all members of
Government agreed, “when producing worksheets to class counsel going forward, [that the Government’s] counsel will provide the date of the Home Confinement Committee’s decision.” ECF No. 324 at 2. I therefore also deny as moot the request for relief in section (g) of the supplemental memorandum. See ECF No. 307 at 29. 9 People with Certain Medical Conditions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html. 10 See, e.g., ECF No. 298 at 60 (using this phrase to describe O.F., who has two Tier II conditions: 28 percent BMI and hypertension); id. at 64 (same for G.G., who has one potential Tier II condition: asthma); see also People with Certain Medical Conditions, Centers for Disease Control and Prevention (“CDC”) (last visited January 12, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/people-withmedical-conditions.html. 11 Under the Settlement Agreement, each worksheet must list all an inmate’s risk factors, including both Tier I and Tier II factors. ECF No. 134-1 at 11.
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the class – and thus all those for whom such worksheets are being generated – are “medically vulnerable” on account of their having one or more CDC risk factors. The BOP argues that, though the above-quoted language is inartful, it is intended to capture the notion that an inmate with only Tier II risk factors does not face a fully proven risk from COVID-19, because Tier II “conditions ‘might,’ but are not proven to, place an inmate at increased risk of severe COVID19.” ECF No. 310 at 8 (emphasis in original). The BOP further asserts that Tier I and Tier II conditions present different risks according to the CDC and, therefore, should be afforded different weights in individual home confinement decisions. I agree with the BOP that the Settlement Agreement allows it to accord less weight to Tier II factors. “Substantial weight” in this context must be understood to define a spectrum,12 and Tier I factors, which are supported by more robust scientific evidence of an association with COVID-19, belong at the weightier end of that spectrum. But I agree with the class that the BOP’s language stating that an inmate “does not have any risk factors that would put him/her at a higher risk of developing severe illness as a result of COVID-19” is, at best, ambiguous and fails to demonstrate that the BOP is complying with its obligation to assign “substantial weight” to an inmate’s COVID-19 risk factors.
The Settlement Agreement requires the BOP to “assign[] substantial weight” to the inmate’s COVID risk factors, but it qualifies this statement with the phrase “based on CDC guidance.” ECF No. 30 at 71. The CDC explains that the distinction between Tier I factors and Tier II factors is based on the strength of the scientific evidence supporting the conclusion that there is an association between each risk factor and severe illness. Tier I conditions are supported by the “strongest and most consistent evidence”, which is “[d]efined as consistent
12 The TRO issued before the CDC revised its guidance to separate the conditions associated with severe illness due to Covid-19 into those that “do” create a higher risk of severe illness and those that “might” create such a risk. When the TRO was drafted, all the conditions listed in the class definition were deemed by the CDC to place the individual at higher risk of severe illness from COVID-19.
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evidence from multiple small studies or a strong association from a large study.” 13 Tier II conditions are supported by either “mixed evidence”—“[d]efined as multiple studies that reached different conclusions about risk associated with a condition”—or “limited evidence”—“[d]efined as consistent evidence from a small number of studies.”14 Given these gradations in the quality of the evidence supporting particular risk factors and given that the Settlement Agreement requires the BOP to keep the “National Health Technology Administrator—or a substitute medical clinician . . . [as] a member of the [HCC] to assist in the Committee’s home confinement reviews,” ECF No. 134-1 at 10-11, I find that the Settlement Agreement’s command to assign “substantial weight” to an inmate’s risk factors based on CDC guidance must be understood to leave some discretion to the BOP in determining each inmate’s risk profile. The presence of a medical professional on the HCC means that the BOP is in a better position than the class or the Court to make that determination. As a result, although the BOP must give “substantial weight” to each risk factor, the agency retains some discretion in the precise amount of weight to assign to each factor based on CDC guidance, a specific inmate’s medical history, and the input of the medical professional on the HCC. And this discretion may frequently, and properly, result in a finding that an inmate’s Tier II conditions are outweighed by public safety considerations, even when the same public safety considerations would not outweigh Tier I medica l conditions.
The above-quoted language the BOP is apparently using when an inmate has only Tier II risk factors does not unambiguously show, however, that the BOP is properly acting within its discretion under the Settlement Agreement. The BOP undoubtedly knows that all the inmates it is reviewing suffer from some condition that makes them “medically vulnerable” enough to be in
13 Scientific Evidence for Conditions that Increase Risk of Severe Illness, Centers for Disease Control and Prevention (last visited January 12, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/evidence-table.html. 14 Id.
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the class, and, as I explain below, the Settlement Agreement does not demand that the BOP explain itself in detailed, precise terms. Nonetheless, saying of every inmate with only Tier II conditions that he or she “does not have risk factors that would put [him or her] at higher risk of developing severe illness as a result of COVID-19” leaves open the possibility that the BOP believes that an inmate with Tier II conditions faces zero increased risk of severe illness from COVID-19 or that the BOP is simply overlooking the facts—the inmate’s Tier II conditions. Either possibility would violate the requirement that the BOP assign “substantial weight” to the inmate’s COVID-19 risk factors. As a result, because the BOP’s “does not have risk factors” language makes it impossible to determine whether it is complying with the requirement to accord substantial weight to an inmate’s CDC risk factors, I find that the worksheets using that phrase fail to demonstrate that the BOP has complied with the Settlement Agreement.
Ordinarily, in this situation, I would require the BOP to re-review specific inmates for home confinement, as the Settlement Agreement authorizes me to do. See ECF No. 134-1 at 17. But a court’s authority to award specific performance is an equitable power, Restatement (Second) of Contracts, § 358 cmt. a., and I do not believe it would be equitable to issue such sweeping relief here. The BOP has limited resources, and it should not be required to divert its staff to filling out worksheets more carefully just to demonstrate compliance with the Settlement Agreement, even when the underlying litigation is prompted by a public health emergency. It is not at all clear that ordering re-reviews will make a difference for many inmates. For example, for inmates whose conditions barely qualify them for Tier II status (such as someone whose BMI barely exceeds 25) or for inmates who, though they have serious co -morbidities, also have criminal records, offenses of conviction, or disciplinary histories that raise serious public safety concerns, there would be little point in requiring a re-review. As noted, under the Settlement
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Agreement, as long as it is weighing the correct considerations and assigning some level of
“substantial weight” to COVID-19 risk factors, the BOP has plenary discretion to read the scale
and determine whether a particular public safety consideration outweighs a particular COVID -19
risk factor. It thus would not be equitable to require a re-review in cases where the BOP violated
the “substantial weight” requirement by invoking the formula quoted above but other facts
apparent from the face of the worksheet make it likely the violation was harmless.15 As a result,
the parties shall meet and confer to identify specific inmates whose individual cases (1) contain
the “does not have risk factors” language, and (2) otherwise are strong candidates for re-review.
Then, after the parties have agreed upon a list of inmates whose cases contain this error and who
otherwise warrant re-review, the BOP shall re-review that list of inmates for home confinement
in accordance with the terms of the Settlement Agreement.16
15 See, e.g., ECF No. 298 at 60 (O.F., who has two Tier II conditions (28 percent BMI and hypertension), was denied home confinement in part because O.F. “does not have any risk factors that would put [him/her] at a higher risk of developing severe illness as a result of COVID-19 based on CDC guidelines.” But O.F.’s worksheet also lists “Past Violence- Assault and Battery with a dangerous weapon, 5/23/00”, a “Medium Risk of Recidivism-based on Pattern Score”, and “no viable release plan . . . .” Id. It is not difficult to imagine that, even on re-review, the BOP would be well within its discretion to deny O.F. home confinement under the terms of the Settlement Agreement, assuming that the worksheet does not contain material factual errors or omissions.). 16 The class also seeks an order directing the BOP to “[e]xplicitly consider an individual’s age as a CDC risk factor to be afforded ‘substantial weight’ for any class member over the age of 50, in conjunction with all other CDC medical risk factors . . . .” ECF No. 296 at 33 ¶ (a)(ii). But the class makes no allegation that the BOP fails to list an inmate’s age on the worksheet, or that the BOP has refused to rereview an inmate for home confinement based on a factual error related to age. Further, the class does not identify anything in the Settlement Agreement, the TRO, the CDC guidelines or elsewhere that supports its cut-off at the age of 50. The CDC views age as a sliding scale of increasing risk from COVID-19 as one gets older, but it does not set clear age cut-offs. Older Adults, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html. As a result, I find that a worksheet is adequate under the Settlement Agreement as to an inmate’s age as long as it correctly lists the inmate’s age and otherwise appears to provide substantial weight to that inmate’s CDC risk factors.
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3. Percentage of Time Served and Disciplinary History The parties disagree as to whether the BOP may rely on certain factors, including percentage or amount of time served or an inmate’s disciplinary history that is both non -violent and non-sexual, in denying a class member home confinement. Thus, the class seeks an order directing the BOP to “[n]ot rely in home confinement decisions on factors that are only tangentially related to public safety, including percentage or amount of time served or recent disciplinary history that is both non-violent and non-sexual[.]” ECF No. 296 at 34 ¶ (a)(vi). I agree with the class that these factors bear no clear or necessary relationship to public safety. The percentage or amount of time an inmate has served bears no necessary relationship to public safety, properly understood. The BOP argues in its brief that the earlier in an inmate’s sentence he or she is released, the greater the “flight” risk he or she presents. But this is speculative; the BOP has presented no data suggesting that any inmates released to home confinement have fled the jurisdiction to which they have been released. In any event, the HCC does not invoke the “flight” argument in any of its references to percentage of time served in the worksheets, and thus the argument appears to be a post-hoc rationalization offered by counsel, rather than the HCC’s own rationale for denying transfer to home confinement. Rather, it appears that when the HCC cites percentage or amount of time served in the worksheets, it does so as a measure of the degree to which the portion of the sentence served has reflected the “seriousness of the offense.”17 This is a relevant consideration under the statute governing federal sentencing, 18 U.S.C. § 3553(a), but it is not under the Settlement Agreement, which focuses on balancing public safety and inmate safety. Thus, the BOP may not rely on this consideration in denying transfers to home confinement or, if it does so, it must offer a more
17 See, e.g., ECF No. 298 at 20 (M.B., who had served 12.0 percent of the statutory time, was denied home confinement in part because the “current percentage of timeserved diminishes the seriousness of the offense.”).
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detailed explanation demonstrating a connection between percentage of time served and public safety, properly understood.
Disciplinary incidents are more naturally relevant to public safety, especially when they involve violence, threats of violence (including making weapons), or sexual transgressions. In addition, a pattern of breaking even minor or technical rules can demonstrate an inability to conform one’s conduct to the law that could pose a risk to the public safety. But it is hard to see how one or two minor and non-violent disciplinary infractions, or even a greater number of very old infractions, could establish such a pattern.18 So if the BOP is going to rely on disciplinary incidents, the worksheet must make clear why they are related to public safety. In some cases— as when the worksheet indicates that the disciplinary incident involved an assault—this will be obvious. But when it is not obvious, the BOP must provide more explanation to show that it has fulfilled its balancing duties under the Settlement Agreement.
As a result, I find that the BOP has violated the terms of the Settlement Agreement when it has relied on percentage or amount of time served or a disciplinary history that is non -violent, non-sexual, and not part of a pattern of misconduct demonstrating an inability to follow the law.
Again, although the Settlement Agreement authorizes me to order a comprehensive re review in these cases, I find that a more focused remedy would be more efficient and practical, and thus more equitable. Thus, I again order the parties to meet and confer to identify specific inmates whose individual home confinement cases (1) were denied at least in part because of the percentage or amount of time served or because of a disciplinary history that is non-violent, nonsexual, and does not shown a clear pattern of misconduct suggesting an inability to follow the
18 See, e.g., ECF No. 298 at 236-37 (B.W., whose worksheet provided a disciplinary history as follows: “Yes. 06-19-2020[;] Code 316 Being in Unauthorized Area[;] Code 332 Smoking in Unauthorized Area.”—absent a more detailed explanation, smoking and being in an unauthorized area once in the past year is not a relevant public safety consideration under the Settlement Agreement).
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law, and (2) who are otherwise strong candidates for re-review, i.e., those whose worksheets do not otherwise raise significant concerns about public safety, properly understood. Then, after the parties have agreed upon a list of inmates whose cases contain one or more of these errors and otherwise merit re-review, the BOP shall re-review that list of inmates for home confinement in accordance with the terms of the Settlement Agreement. It is my hope that the parties will focus the re-review process on the inmates who face the greatest dangers from COVID-19 and are least likely to present a danger to public safety.
4. Low PATTERN Scores The parties also disagree as to the relevance to public safety of a “Low” score on the BOP’s “PATTERN” risk assessment tool, which is aimed at predicting whether an inmate will reoffend based on several characteristics or “risk factors”. The tool assigns each inmate to one of four categories for risk of recidivism: minimum, low, medium, or high. A “Low” PATTERN score is supposed to indicate a higher risk of recidivism than a “minimum” score. The class seeks an order directing the BOP to “[n]ot rely in home confinement decisions on a ‘Low’ PATTERN Score as a basis to deny home confinement to class members[.]” ECF No. 296 at 34 ¶ (a)(v). As the Government points out, however, the risk of recidivism is plainly related to public safety, and the BOP uses an inmate’s PATTERN score to estimate that risk. The class has criticized the reliability of the PATTERN tool, and others have done so as well. See, e.g., https://www.propublica.org/article/bill-barr-promised-to-release-prisoners-threatened-bycoronavirus-even-as-the-feds-secretly-made-it-harder-for-them-to-get-out. But while the tool may be imperfect, the BOP is using it to gauge a factor relevant to public safety, i.e., risk of recidivism,19 and the Settlement Agreement leaves to the BOP the determination of how much
19 As discussed above, not all types of recidivism pose identical risks to public safety, properly understood. See note 4, supra.
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weight to accord a particular PATTERN score, as this is part of the substantive determination of whether it is appropriate to transfer an inmate to home confinement. While the BOP may not categorically deny inmates home confinement on the basis of a particular PATTERN score, because doing so would not reflect an individualized balancing of public safety against inmate safety, it is free to rely on an inmate’s PATTERN score, including a “Low” score, in its weighing analysis. As a result, I deny the class’s request for an order prohibiting the BOP from relying in part on an inmate’s Low PATTERN score in denying a class member home confinement.
That said, there may be individual cases where the Settlement Agreement requires more explanation when a denial rests primarily on a Low PATTERN score. Again, the BOP’s task is to determine which weighs more heavily in a particular case – the risk to the inmate or the risk to the public safety. To show that it has performed this task, the BOP needs to make some showing on the worksheet that it has decided that one risk outweighs the other. Thus, for example, where a “low PATTERN score” is the only factor being relied upon (or the only factor other than percentage of time served or some other non-public-safety-related consideration), and the inmate has multiple Tier I risk factors, the BOP will likely need to provide more detail about why it has read the scale to tilt against transfer to home confinement.20 At the end of the day, it is within BOP’s discretion to make that determination, but, as discussed below, the Settlement Agreement requires some explanation of the factual basis for its decisions. So the higher the risk to the
20 See https://www.cdc.gov/media/releases/2020/p0625-update-expands-covid-19.html (“The more underlying medical conditions people have, the higher their risk.”); see also, e.g., ECF No. 298 at 47 (K.D., 37 years old, whose worksheet shows one Tier I risk factor (BMI of 44.8 percent) and two Tier II risk factors (hypertension, asthma), no history of violence or sexual offenses, a minimum security level, no history of discipline or escape, and an apparently valid release plan, was denied home confinement “due to her low recidivism risk level, as well as the percentage of time served for the offense.”). Based on the worksheet, it is not obvious why these two factors present a danger to public safety that outweighs K.D.’s risk of severe illness from COVID-19, or that the BOP complied with its obligations under the Settlement Agreement to accord substantial weight to an inmate’s CDC risk factors and provide a factual basis, relevant to public safety, that outweighs the risk to inmate safety.
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inmate or the fewer (or lighter) the public safety considerations, the more the BOP will be required to explain why it denied the transfer to home confinement to demonstrate that it complied with its balancing obligation.21
B. The Settlement Agreement Does Not Require Lengthy “Case Narratives” The parties also disagree about the quality of the explanations the BOP has provided on
the worksheets when denying home confinement. Specifically, the class seeks an order directing the BOP to: (1) reflect its consideration of an inmate’s CDC risk factors “in the case narrative or reasons for denial provided by the BOP”; (2) reflect its consideration of an inmate’s age as a CDC risk factor “in the case narrative or reasons for denial provided by the BOP”; (3) “[r]eflect in any home confinement denial that ‘substantial weight’ was actually given to the individual’s CDC risk factors and include an explanation of why these risk factors are overcome by substantial evidence of countervailing public safety considerations;” (4) “provide an individualized explanation of the reasons why the public safety concerns specific to the individual class member’s circumstances are sufficient to overcome their serious medical vulnerability to COVID-19”; and (5) “[n]ot rely in home confinement decisions on any exclusion previously lifted by this Court’s TRO as the sole basis for denying home confinement, such as disciplinary history or offense of conviction, unless the BOP details the nature of the underlying factual circumstances and why they raise substantial evidence of countervailing public safety considerations sufficient to overcome the individual’s serious medical vulnerability to COVID19”. See ECF No. 296 at 33-34 ¶¶ (a)(i)-(ii), (a)(iv), (a)(vii). I find that the Settlement
21 In its supplemental memorandum, the class also seeks relief limiting the BOP’s consideration of the lack of a viable release plan and certain supervision-related requirements. ECF No. 307 at 29. For the reasons set forth in the Government’s brief, ECF No. 324 at 2-7, I deny this request. I encourage the parties to meet and confer to discuss any specific cases related to this request for relief the class believes warrant a reexamination.
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Agreement does not, in general, require a lengthy explanation of a home confinement denial as long as the worksheet, taken as a whole, presents a sufficient factual basis to infer that th e BOP determined that public safety factors, properly understood and supported by the facts, outweighed the risk of severe illness to the inmate from COVID-19.
The Settlement Agreement states that if the HCC denies home confinement, “it will comply with the May 12, 2020 TRO regarding a written explanation of the factual basis for any factors relied upon for the denial.” ECF No. 238-1 ¶ 11. The only mention in the TRO of a written explanation states that the Warden must provide the Court with “an individualized explanation for each denial of home confinement as to [a medically vulnerable inmate], including at least a brief description of the factual basis for any factors deemed to outweigh the danger to the inmate from COVID 19.” ECF No. 30 at 73; see also Settlement Agreement ¶ 10, ECF No. 134-1 at 11 (“Respondent agrees that if she determines that [a class member] is not eligible for home confinement, she will comply with the May 12, 2020 TRO and provide a written explanation of the factual basis for any factors relied upon for the denial.”). The Settlement Agreement also states that the BOP will provide class counsel with “copies of the documents generated” in the home confinement review process, including the wor ksheets and “the reason for denial,” and that “the form of the documents produced under this Section will be consistent with the worksheets that have been disclosed in this litigation (see, e.g., ECF 59).” Id. ¶ 11. The worksheets “disclosed in this litigation” are one-page documents consisting primarily of a table listing the inmate’s COVID risk factors, age, current or past offenses, percentage of time served, pending charges or detainers, security level, recent discipline, PATTERN score, and other related information. Below the table there is a “case narrative,” a “home confinement
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committee review,” or both, each consisting of two or three sentences indicating reasons the BOP deemed the individual appropriate or inappropriate for home confinement.
When the Settlement Agreement is read as a whole, I find that each worksheet generated by the BOP to document its decision must be sufficient to identify the facts supporting its conclusion that, in the case of a denial, public safety factors outweighed the danger to the inmate from COVID-19. This is not an exacting standard. It does not require the BOP to explain its decision in anything approaching the level of detail one would expect from a legal opinion. To the contrary, the reference to the form of the documents being consistent with the worksheets disclosed in the litigation makes clear that what is expected is, as described above, a table format listing information in various categories and then an explanation of a couple of sentences at the bottom providing further explanation of the factors the HCC found most weighty. I agree with the Government that the proper way to evaluate whether these worksheets comply with the Settlement Agreement is to read them as a whole and not to interpret the explanation at the bottom as a comprehensive summary of the HCC’s reasons for denial. At the same time, to be compliant with the Agreement, there needs to be enough information in the table and the narrative at the bottom, taken together, to enable the reader to glean the facts upon which the BOP relied in deciding that public safety factors outweighed the danger to the inmate. Thus, neither the “case narrative” nor the “home confinement committee review” at the bottom of the worksheet need list every CDC risk f actor or every public safety factor, invoke the words “substantial weight” or “outweighs,” or incant other similar formulas. The critical point is that either the facts shown in the table or the narrative explanations below the table , or both, must identify the facts weighed on each side of the scale. Again, rather than order a re-review of all the worksheets that do not satisfy this modest standard, I direct the parties to meet and confer and
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identify the non-compliant worksheets for the strongest candidates for home confinement, based on the public safety/inmate safety standards discussed in this opinion, and arrange for a re review of the cases of those inmates.
C. The Settlement Agreement Requires the BOP to Review for Home Confinement Class Members Who Are Transferred to Other Prisons. Lastly, the parties disagree as to whether inmates who qualify as class members but are
subsequently transferred to a facility other than FCI Danbury are eligible for home confinement review under the Settlement Agreement. As a result of this disagreement, the class seeks an “[o]rder [directing] the BOP to not refuse to conduct a home confinement review or a re-review for any recognized class member it transfers out of FCI Danbury[.]” ECF No. 296 at 35 ¶ (d). The Government opposes this order because, it contends, the intent of the Settlement Agreement was to provide home confinement only to inmates currently at FCI Danbury. I agree with the class.
The Settlement Agreement defines the class as “consisting of any person incarcerated at FCI Danbury anytime from the Effective Date until the termination date of this Agreement, October 31, 2021 . . .” who is either a List 1 or List 2 inmate, or who possess es one or more Tier 1 or Tier 2 COVID-19 risk factors as determined by the CDC. ECF No. 134-1 at 5-6. This definition plainly applies to any inmate who was at FCI Danbury and who otherwise qualified as a class member, regardless of the length of time the inmate spent at FCI Danbury or whether the inmate remains at FCI Danbury. No other provision in the Settlement Agreement addresses inmates transferred out of FCI Danbury to another prison. As a result, the Settlement Agreement requires the BOP to consider for home confinement inmates transferred out of FCI Danbury to another prison, as long as such inmates otherwise qualified as class members at some point prior to the transfer.
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The fact that the Warden of FCI Danbury no longer has authority over inmates

transferred to another facility does not change the analysis. The BOP itself is a party to the

Settlement Agreement and is bound by its terms. It is not excused from complying with the

Agreement simply because a class member has been transferred to a prison that was not the

subject of the underlying lawsuit and is outside the District of Connecticut, and the BOP has

pointed to nothing that would prevent it from effectuating the transfer to home confinement of

such an inmate. It is true, as the BOP noted at oral argument, that the inmate’s overall risk

profile may have changed due to, for example, a higher or lower infection rate of COVID-19 at

the inmate’s new facility; but I know of no reason the Home Confinement Committee should not

be able to take such changed circumstances into account in making its decisions.

II.

CONCLUSION

For the reasons and to the extent stated above, the class’s motion to enforce the

settlement agreement (ECF No. 296) is GRANTED IN PART and DENIED IN PART, as

follows:

(1) Within 14 days of this Order, the parties shall meet and confer to identify specific

class members whose cases warrant re-review under the terms of this Order and the

Settlement Agreement; and

(2) Within 14 days of such identification, the BOP shall conduct a re-review of inmates

identified under paragraph (1) for home confinement under the terms of the

Settlement Agreement, except that, if for some good reason the BOP cannot meet that

deadline, it shall inform class counsel of that good reason before expiration of the 14

days.

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(3) To the extent the parties are unable to agree on the class members whose cases warrant re-review under paragraph (1), they shall utilize the mechanisms specified in the Settlement Agreement for resolving such disagreements.
IT IS SO ORDERED.

Dated:

Hartford, Connecticut January 19, 2021

/s/ Michael P. Shea, U.S.D.J.

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