U.S. District Court District of New Jersey [LIVE] (Camden) CIVIL DOCKET FOR CASE #: 1:20-cv-05496-RMB

WRAGG et al v. ORTIZ et al Assigned to: Judge Renee Marie Bumb Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 05/04/2020 Date Terminated: 05/27/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Petitioner TROY WRAGG

represented by JEANNE LOCICERO AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION 89 Market Street, 7th Floor P.O. BOX 32159 NEWARK, NJ 07102 973-854-1715 Fax: 973-642-6523 Email: jlocicero@aclu-nj.org ATTORNEY TO BE NOTICED

TESS MEILING BORDEN AMERICAN CIVIL LIBERTIES UNION OF NJ 89 MARKET ST PO BOX 32159 NEWARK, NJ 07102 973-854-1733 Email: tborden@aclu-nj.org ATTORNEY TO BE NOTICED

Petitioner MICHAEL SCRONIC

represented by JEANNE LOCICERO (See above for address) ATTORNEY TO BE NOTICED

TESS MEILING BORDEN (See above for address) ATTORNEY TO BE NOTICED

Petitioner LEONARD BOGDAN
Petitioner ELIEZER SOTO-CONCEPCION individually and on behalf of all others similarly situated

represented by JEANNE LOCICERO (See above for address) ATTORNEY TO BE NOTICED
TESS MEILING BORDEN (See above for address) ATTORNEY TO BE NOTICED
represented by JEANNE LOCICERO (See above for address) ATTORNEY TO BE NOTICED
TESS MEILING BORDEN (See above for address) ATTORNEY TO BE NOTICED

V. Respondent DAVID E. ORTIZ

represented by ELIZABETH PASCAL U.S. DEPARTMENT OF JUSTICE OFFICE OF THE U.S. ATTORNEY 401 MARKET STREET P.O. BOX 2098 CAMDEN, NJ 08101 856-757-5105 Email: elizabeth.pascal@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN FRANCIS BASIAK U.S. ATTORNEY'S OFFICE 402 E. STATE STREET, ROOM 430 TRENTON, NJ 08608 (609) 858-0309 Email: john.basiak@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN ANDREW RUYMANN

Respondent MICHAEL CARVAJAL

OFFICE OF THE US ATTORNEY 402 EAST STATE STREET SUITE 430 TRENTON, NJ 08608 (609) 989-2190 Email: john.ruymann@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John T. Stinson , Jr DOJ-USAO DISTRICT OF NEW JERSEY CIVIL DIVISION 402 EAST STATE STREET ROOM 430 TRENTON, NJ 08608 609-858-0305 Fax: 609-989-2275 Email: john.stinson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARK E. COYNE OFFICE OF THE US ATTORNEY 970 BROAD STREET SUITE 700 NEWARK, NJ 07102 (973) 297-2002 Email: mark.coyne@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ELIZABETH PASCAL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN FRANCIS BASIAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN ANDREW RUYMANN (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
John T. Stinson , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARK E. COYNE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/04/2020
05/04/2020 05/04/2020 05/04/2020
05/04/2020

# Docket Text

PETITION for Writ of Habeas Corpus COVID-19 and Class Action

1

Complaint for Declaratory and Injunctive Relief ( Filing fee $ 5

receipt number ANJDC-10767184.), filed by Troy Wragg, Eliezer

Soto-Concepcion, Leonard Bogdan, Michael Scronic.

(Attachments: # 1 Declaration of Joe Goldenson, M.D., # 2 Declaration of Nina Fefferman, Ph.D., # 3 Declaration of Judith Resnik, J.D., # 4 Declaration of Troy Wragg, # 5 Declaration of Michael Scronic, # 6 Declaration of Leonard Bogdan, # 7 Declaration of Eliezer Soto-Concepcion, # 8 Civil Cover Sheet)(BORDEN, TESS) (Entered: 05/04/2020)

2 NOTICE of Appearance by JEANNE LOCICERO on behalf of Leonard Bogdan, Michael Scronic, Eliezer Soto-Concepcion, Troy Wragg (LOCICERO, JEANNE) (Entered: 05/04/2020)

Judge Renee Marie Bumb added. (dd, ) (Entered: 05/04/2020)

CLERK'S QUALITY CONTROL MESSAGE - The case you electronically filed has been processed, however, the following deficiencies were found: Caption,Party Information is to be entered in CAPITAL LETTERS. . The Clerk's Office has made the appropriate changes. Please refer to the Attorney Case Opening Guide for processing electronically filed cases. (cry, ) (Entered: 05/04/2020)

3 DECLARATION of Tess Borden re 1 Petition for Writ of Habeas Corpus,, by LEONARD BOGDAN, MICHAEL SCRONIC, ELIEZER SOTO-CONCEPCION, TROY WRAGG. (Attachments:

05/06/2020 05/06/2020 05/06/2020 05/06/2020 05/06/2020
05/06/2020 05/06/2020

# 1 Exhibit 1 through Exhibit 30, # 2 Exhibit 31 through Exhibit 58)(BORDEN, TESS) (Entered: 05/04/2020)

4 ORDER that within 15 days of the date of entry of this order, Respondent shall file and serve an answer which responds to the allegations and grounds in the petition, etc. Signed by Judge Renee Marie Bumb on 5/5/2020. (rtm, )(nm) (Entered: 05/06/2020)

5 NOTICE of Appearance by John T. Stinson, Jr on behalf of MICHAEL CARVAJAL, DAVID E. ORTIZ (Stinson, John) (Entered: 05/06/2020)

6 NOTICE of Appearance by ELIZABETH ANN PASCAL on behalf of MICHAEL CARVAJAL, DAVID E. ORTIZ (PASCAL, ELIZABETH) (Entered: 05/06/2020)

7 NOTICE of Appearance by JOHN FRANCIS BASIAK on behalf of MICHAEL CARVAJAL, DAVID E. ORTIZ (BASIAK, JOHN) (Entered: 05/06/2020)

8 MOTION for Leave to Appear Pro Hac Vice by LEONARD BOGDAN, MICHAEL SCRONIC, ELIEZER SOTOCONCEPCION, TROY WRAGG. (Attachments: # 1 Certification of Tess Borden, # 2 Certification of James P. Davy, # 3 Certification of Matthew Stiegler, # 4 Certification of Caitlin J. Halligan, # 5 Certification of Faith E. Gay, # 6 Certification of Joshua S. Margolin, # 7 Certification of Oscar Shine, # 8 Certification of Kevin C. Hu, # 9 Certification of Shomik Ghosh, # 10 Text of Proposed Order)(BORDEN, TESS) (Entered: 05/06/2020)

Emergency MOTION for Preliminary Injunction by LEONARD

9

BOGDAN, MICHAEL SCRONIC, ELIEZER SOTO-

CONCEPCION, TROY WRAGG. (Attachments: # 1 Brief in

Support of Motion for Preliminary Injunction, # 2 Declaration of

Tess Borden, # 3 Text of Proposed Order)(BORDEN, TESS)

(Entered: 05/06/2020)

Set Deadlines as to 9 Emergency MOTION for Preliminary Injunction . Motion set for 6/1/2020 before Judge Renee Marie Bumb. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (rtm, ) (Entered: 05/12/2020)

05/07/2020
05/07/2020
05/08/2020 05/08/2020 05/10/2020 05/11/2020 05/11/2020 05/11/2020 05/12/2020

10 TEXT ORDER. The Court will conduct a Zoom video conference in this matter on May 12, 2020 at 10:00 a.m. Two attorneys for the Plaintiffs and two attorneys for the Defendants may appear by video, all others by audio only without appearances. Kindly mark your calendars. So Ordered by Judge Renee Marie Bumb on 05/072020. (Bumb, Renee) (Entered: 05/07/2020)
11 TEXT ORDER: It is hereby ORDERED this Court schedules an off the record conference call with counsel in the case on May 8, 2020 at 3:00 p.m. The call in and access numbers to use for the call are as follows: 1-888-684-8852, access code 3436790#. So Ordered by Magistrate Judge Joel Schneider on 5/7/20. (Shaw, A) (Entered: 05/07/2020)
12 TEXT ORDER. The time of the conference call is rescheduled to 11:00 a.m., same day. Kindly mark your calendars. So Ordered by Judge Renee Marie Bumb on 05/08/20. (Bumb, Renee) (Entered: 05/08/2020)
Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Telephone Status Conference held on 5/8/2020. (se, ) (Entered: 05/11/2020)
13 Letter from Jeanne LoCicero requesting expedited briefing re 9
Emergency MOTION for Preliminary Injunction . (LOCICERO, JEANNE) (Entered: 05/10/2020)
14 Letter from respondents' counsel proposing a schedule. (RUYMANN, JOHN) (Entered: 05/11/2020)
15 ORDER admitting James P. Davy, Esq., Matthew Stiegler, Esq,Caitlin J. Halligan, Esq.; Faith E. Gay, Esq.; Joshua S. Margolin, Esq; Oscar Shine, Esq.; Kevin C. Hu, Esq.; and Shomik Ghosh, Esq, as pro hac vice counsel. Signed by Judge Renee Marie Bumb on 5/11/2020. (rtm, ) (Entered: 05/11/2020)
16 NOTICE of Appearance by MARK E. COYNE on behalf of All Defendants (COYNE, MARK) (Entered: 05/11/2020)
Set Deadlines as to 8 MOTION for Leave to Appear Pro Hac Vice . Motion set for 6/1/2020 before Judge Renee Marie Bumb. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (rtm, ) (Entered: 05/12/2020)

05/12/2020
05/13/2020
05/13/2020 05/14/2020 05/14/2020 05/14/2020 05/14/2020

17 Minute Entry for proceedings held before Judge Renee Marie Bumb: Status Conference held via video conference on 5/12/2020. Ordered briefing schedule as follows; Respondents brief due by 5/18/20 at 5:00p.m., any reply by Petitioners due by on 5/20/20 at 5:00p.m. and any reply by respondents due on 5/21/20 at 5:00 p.m. Ordered hearing on Motion for Preliminary Injunction set for 5/22/20 at 10:00 a.m. (Court Reporter Ted Formaroli) (ar1, ) (Entered: 05/12/2020)
18 Transcript of Proceedings held on 5/12/2020, before Judge RENEE MARIE BUMB & Judge JOEL SCHNEIDER. Court Reporter/Transcriber Ted Formaroli (609-575-3864). NOTICE REGARDING (1) REDACTION OF PERSONAL IDENTIFIERS IN TRANSCRIPTS AND (2) MOTION TO REDACT AND SEAL: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript to comply with Fed.R.Civ.P.5.2(a) (personal identifiers). Parties seeking to redact and seal this Transcript, or portions thereof, pursuant to L.Civ.R. 5.3(g) must e-file a Motion to Redact and Seal utilizing the event `Redact and Seal Transcript/Digital Recording`. Redaction Request to Court Reporter/Transcription Agency due, but not filed, by 6/3/2020. Redacted Transcript Deadline set for 6/15/2020. Release of Transcript Restriction set for 8/11/2020. (tf, ) (Entered: 05/13/2020)
19 TEXT ORDER The time of the hearing set for Friday 5/22/20 is rescheduled to 1:00 p.m., same day. Kindly mark your calendars. So Ordered by Judge Renee Marie Bumb on 05/13/2020. (Costigan, Roberta) (Entered: 05/13/2020)
20 Notice of Request by Pro Hac Vice Faith E. Gay to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-10812691.) (BORDEN, TESS) (Entered: 05/14/2020)
21 Notice of Request by Pro Hac Vice Shomik Ghosh to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-10812742.) (BORDEN, TESS) (Entered: 05/14/2020)
22 Notice of Request by Pro Hac Vice Caitlin J. Halligan to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-10812776.) (BORDEN, TESS) (Entered: 05/14/2020)
23 Notice of Request by Pro Hac Vice Kevin C. Hu to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-10812796.) (BORDEN, TESS) (Entered: 05/14/2020)

05/14/2020 05/14/2020 05/15/2020 05/15/2020 05/18/2020
05/18/2020 05/20/2020
05/20/2020

24 Notice of Request by Pro Hac Vice Joshua S. Margolin to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-10812824.) (BORDEN, TESS) (Entered: 05/14/2020)
25 Notice of Request by Pro Hac Vice Oscar Shine to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-10812843.) (BORDEN, TESS) (Entered: 05/14/2020)
26 Notice of Request by Pro Hac Vice James P. Davy to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-10817300.) (BORDEN, TESS) (Entered: 05/15/2020)
27 Notice of Request by Pro Hac Vice Matthew Stiegler to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-10817333.) (BORDEN, TESS) (Entered: 05/15/2020)
28 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim and Opposition to Petitioners' Motion for a Preliminary Injunction by MICHAEL CARVAJAL, DAVID E. ORTIZ. Responses due by 5/20/2020 (Attachments: # 1 Brief in Support of Motion to Dismiss and in Opposition to Petitioners' Motion for a Preliminary Injunction, # 2 Declaration of James Reiser, # 3 Declaration of Christina Clark, # 4 Declaration of Adam Sassaman, # 5 Declaration of Mark Coyne, # 6 Declaration Nicoletta Turner-Foster, # 7 Text of Proposed Order, # 8 Letter re: Brief Length, # 9 Certificate of Service)(BASIAK, JOHN) (Entered: 05/18/2020)
29 Letter from the government's counsel requesting that the Court accept the government's late filing. (RUYMANN, JOHN) (Entered: 05/18/2020)
Set Deadlines as to 28 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim and Opposition to Petitioners' Motion for a Preliminary Injunction. Motion set for 6/15/2020 before Judge Renee Marie Bumb. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (rtm, ) (Entered: 05/20/2020)
Pro Hac Vice counsel, FAITH E. GRAY, SHOMIK GHOSH, CAITLIN J. HALLIGAN, KEVIN C HU, JOSHUA S

05/20/2020
05/20/2020 05/21/2020
05/21/2020 05/21/2020

MARGOLIN, OSCAR SHINE, JAMES P. DAVY and MATTHEW STIEGLER, has been added to receive Notices of Electronic Filing. Pursuant to L.Civ.R. 101.1, only local counsel are entitled to sign and file papers, enter appearances and receive payments on judgments, decrees or orders. (rtm, ) (Entered: 05/20/2020)
30 MEMORANDUM in Opposition filed by LEONARD BOGDAN, MICHAEL SCRONIC, ELIEZER SOTO-CONCEPCION, TROY WRAGG re 28 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim and Opposition to Petitioners' Motion
for a Preliminary Injunction (Attachments: # 1 Declaration of Joe Goldenson, M.D., # 2 Declaration of Rodolfo Quiambao, # 3 Declaration of Ezra McCombs, # 4 Declaration of Tommie Telfair, # 5 Declaration of Raymond Valas, # 6 Declaration of Michael Scronic, # 7 Letter re: Brief Length)(BORDEN, TESS) (Entered: 05/20/2020)
31 Letter from Petitioners' counsel requesting that the Court accept Petitioners' late filing. (BORDEN, TESS) (Entered: 05/20/2020)
32 TEXT ORDER The Court having received the parties' briefs on Respondent's motion to dismiss and Petitioner's motion for preliminary injunctive relief and awaiting Respondent's reply, finds that oral argument is unnecessary and hereby Orders that the hearing scheduled for May 22 at 1:00 p.m. is cancelled. The Court will decide the motions on the briefs without oral argument pursuant to Federal Rule of Civil Procedure 78(b). Respondent, in its reply brief, shall address whether Phase Six of the of the BOP's Action Plan has been extended beyond May 18, 2020, and if so, until when.. So Ordered by Judge Renee Marie Bumb on 05/21/2020. (Costigan, Roberta) (Entered: 05/21/2020)
33 REPLY BRIEF to Opposition to Motion filed by MICHAEL CARVAJAL, DAVID E. ORTIZ re 28 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim and Opposition to Petitioners' Motion for a Preliminary Injunction (Attachments: # 1 Declaration (Redacted) May 21, 2020 Nicoletta Turner-Foster, M.D., # 2 Certificate of Service)(BASIAK, JOHN) (Entered: 05/21/2020)
34 Exhibit to 33 Reply Brief to Opposition to Motion, Un-redacted May 21, 2020 Declaration of Nicoletta Turner-Foster, M.D. by MICHAEL CARVAJAL, DAVID E. ORTIZ. (BASIAK, JOHN)
NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days

following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal if the motion is resolved, unless otherwise directed by the
Court. (Entered: 05/21/2020)

05/21/2020

35 Letter from governments' counsel requesting that the Court accept the government's late-filed brief. (RUYMANN, JOHN) (Entered: 05/21/2020)

05/21/2020

36 MOTION to Seal the Declaration of Nicoletta Turner Foster, M.D. by MICHAEL CARVAJAL, DAVID E. ORTIZ. (Attachments: # 1 Declaration of Elizabeth Pascal, # 2 Text of Proposed Order, # 3 Certificate of Service)(PASCAL, ELIZABETH) (Entered: 05/21/2020)

05/22/2020

Set Deadlines as to 36 MOTION to Seal the Declaration of Nicoletta Turner Foster, M.D.. Motion set for 6/15/2020 before Judge Renee Marie Bumb. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (rtm, ) (Entered: 05/22/2020)

05/22/2020

37 Letter from Elizabeth Pascal re: Protective Consent Order. (Attachments: # 1 Text of Proposed Order - Protective Consent Order)(PASCAL, ELIZABETH) (Entered: 05/22/2020)

05/26/2020 38

PROTECTIVE CONSENT ORDER. Signed by Magistrate Judge Joel Schneider on 5/22/2020. (rtm, ) (Entered: 05/26/2020)

05/26/2020

39 Letter from Robert Hastings requesting to join case. (rtm, )(nm) (Entered: 05/26/2020)

05/27/2020 40

OPINION. Signed by Judge Renee Marie Bumb on 5/27/20. (dd, ) (Main Document 40 replaced on 5/27/2020) (dd). (Entered: 05/27/2020)

05/27/2020

41 ORDER denying 9 Motion for Preliminary Injunction; granting 28 Motion to Dismiss for Lack of Jurisdiction; Directing Writ of HabeasCorpus COVID-19 and Class Action Complaint for Declaratory andInjunctive Relief be DISMISSED WITHOUT PREJUDICE.***CIVIL CASE TERMINATED. Signed by Judge Renee Marie Bumb on 5/27/20. (dd, ) (Entered: 05/27/2020)

05/27/2020

42 Letter from Sonny Desposito 5/26/2020 requesting to be added by name to the class action lawsuit. (rtm, )(nm) (Entered: 05/27/2020)

05/29/2020 05/29/2020 05/31/2020
06/01/2020
06/01/2020
06/01/2020 06/02/2020
06/03/2020 06/05/2020 06/05/2020

43 ORDER Directing the Clerk to mail Mr. Hastings a copy of the docket sheet in this case. Signed by Judge Renee Marie Bumb on 5/28/2020. (rtm, )(nm) (Entered: 05/29/2020)
44 ORDER Directing the Clerk to mail a copy of the docket sheet for this case to Mr. Desposito. Signed by Judge Renee Marie Bumb on 5/28/2020. (rtm, )(nm) (Entered: 05/29/2020)
45 TEXT ORDER The parties shall advise the Court whether the Order denying preliminary relief and dismissing the Complaint should be amended as the Court denied preliminary relief only. The parties may wish to submit a proposed order. So Ordered by Judge Renee Marie Bumb on 05/31/2020. (Costigan, Roberta) (Entered: 05/31/2020)
46 SUPPLEMENTAL TEXT ORDER: In reference to this Court's Text Order of May 31, 2020 (Dkt. No. 45), the parties shall address footnote 26 in this Court's Opinion (Dkt. No. 40) dated May 29, 2020.. So Ordered by Judge Renee Marie Bumb on 06/01/2020. (Costigan, Roberta) (Entered: 06/01/2020)
47 AMENDED SUPPLEMENTAL TEXT ORDER: In reference to this Court's Text Order of May 31, 2020, (Dkt. No. 45), the parties shall address footnote 26 in this Court's Opinion (Dkt. No. 40) dated May 27, 2020. So Ordered by Judge Renee Marie Bumb on 06/01/2020. (Costigan, Roberta) (Entered: 06/01/2020)
48 Letter from government's counsel responding to Court's text orders. (RUYMANN, JOHN) (Entered: 06/01/2020)
49 Letter from Petitioners' Counsel Pursuant to Text Orders 45-47 and Letter Motion for Reconsideration. (Attachments: # 1 Exhibit A: Wilson Stay Application, # 2 Exhibit B: Wilson Stay Denial, # 3 Exhibit C: Text of Proposed Order)(BORDEN, TESS) (Entered: 06/02/2020)
50 Letter from Elizabeth Pascal re: Response to Petitioners' Motion re 49 Letter,. (PASCAL, ELIZABETH) (Entered: 06/03/2020)
51 Letter from Petitioners' Counsel re. Supplemental Authority. (Attachments: # 1 Exhibit A: Wilson Stay Order)(BORDEN, TESS) (Entered: 06/05/2020)
52 RESPONSE re 49 Letter,. (Attachments: # 1 Certificate of Service)(BASIAK, JOHN) (Entered: 06/05/2020)

06/08/2020

53 REPLY to Response re 52 Response (NOT Motion). (BORDEN, TESS) (Entered: 06/08/2020)

06/09/2020 54

Letter from Petitioners' Counsel re. Supplemental Authority. (Attachments: # 1 Wilson Opinion)(BORDEN, TESS) (Entered: 06/09/2020)

06/10/2020 55

OPINION. Signed by Judge Renee Marie Bumb on 6/9/2020. (rtm, ) (Entered: 06/10/2020)

06/10/2020

56 ORDER Denying Petitioner's request to vacate this Court's order of 5/27/2020. Signed by Judge Renee Marie Bumb on 6/9/2020. (rtm, ) (Entered: 06/10/2020)

12/03/2020

57 ORDER granting 36 Motion to Seal. Signed by Judge Renee Marie Bumb on 12/3/2020. (rtm, ) (Entered: 12/03/2020)

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 Case 1:20-cv-05496-RMB Document 1 Filed 05/04/20 Page 1 of 56 PageID: 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTOCONCEPCION, individually and on behalf of all others similarly situated,
Petitioners,
v.
DAVID E. ORTIZ, in his capacity as Warden of the Federal Correctional Institution, Fort Dix, and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons,
Respondents.

Case No. _________ cv __________
COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

1.

On April 11, Warden David Ortiz warned prisoners at the Federal Correctional

Institution at Fort Dix, “social distancing is not possible in this environment.” Just days earlier, the

Federal Bureau of Prisons had reported that the first prisoner at Fort Dix had tested positive for

COVID-19. Today, it reports 40.

2.

Around the world, life has changed nearly overnight, as people and governments

battle to slow the spread of COVID-19. In New Jersey, the second-hardest hit state in the United

States, residents hear news from hospitals and nursing homes and understand the terrible toll the

virus inflicts upon any population where it spreads unchecked: rampant illness and death,

especially for people who are medically vulnerable because of their age or underlying health

conditions. They understand that halting the spread of COVID-19 requires rigorous hand-washing,

Case 1:20-cv-05496-RMB Document 1 Filed 05/04/20 Page 2 of 56 PageID: 2

personal protective equipment, and “social distancing” – the maintenance of a measurable distance

between people that the virus cannot bridge.

3.

At Fort Dix, almost 3,000 prisoners hear the same news and understand the same

requirements. Yet they are unable to protect themselves the way others outside the prison can.

Most of them live in 12-person rooms in buildings that house 200 to 300 people, spending their

days crowded into the same TV rooms, phone booths, bathrooms, and mealtime pickup lines.

Approximately 230 of them live in Fort Dix’s minimum-security satellite camp in large dorms

with rows of bunks less than three feet apart. With nowhere else to go, many spend their days

under their covers, quite literally hiding from the virus. Even then, most are still within arm’s reach

of other people in the bunk above or below them, and the beds to the left and the right. The

impossibility of social distancing is not just a warden’s warning, it is simply a fact.

4.

Respondents have compounded the risk to people incarcerated in Fort Dix by, until

recently, refusing to test, medically isolate, or quarantine the overwhelming majority of Fort Dix

prisoners, and by contravening the guidance of Attorney General William Barr to immediately

transfer medically “at-risk” prisoners to home confinement. Respondents’ failure to take

appropriate and necessary action while a COVID-19 infection spreads through the prison is the

kind of indifference proscribed by the Eighth Amendment.

5.

Without significant changes, Fort Dix is speeding towards a catastrophe. As Dr. Joe

Goldenson, a physician with decades of experience in correctional health, cautions: “It is difficult

to overstate the devastation that a COVID-19 outbreak could inflict on a correctional facility such

as Fort Dix.” 1 The only way of stopping the exponential spread of COVID-19 at Fort Dix, and the

1 Ex. 1, Declaration of Joe Goldenson (“Goldenson Decl.”) ¶ 32. 2

Case 1:20-cv-05496-RMB Document 1 Filed 05/04/20 Page 3 of 56 PageID: 3

serious illness and death of prisoners and BOP staff, is by significantly reducing the population

density and rigorously adopting the Centers for Disease Control Guidance regarding testing,

medical isolation, quarantine, and social distancing for those who remain, to ensure

constitutionally-compliant custody.2

6.

For the 3,000 prisoners at Fort Dix, and especially for those who are medically

vulnerable, every day brings increasing panic and increasing risk of serious illness or death. This

petition may be their last chance before a COVID-19 catastrophe overwhelms the prison.

Accordingly, Petitioners Troy Wragg, Michael Scronic, Leonard Bogdan, and Eliezer Soto-

Concepcion, on behalf of themselves and a class of all medically vulnerable persons incarcerated

at Fort Dix now and in the future, bring this action for declaratory and injunctive relief, for

enlargement of custody, and ultimately, if they cannot be held in constitutional custody, for release.

PARTIES

7.

Petitioner Troy Wragg, BOP Register Number 67165-019, is 38 years old and

classified by the BOP as a “chronic care inmate.” He has a chronic autoimmune neuromuscular

disease and a history of severe epilepsy, hypertension, and severe heart disease, including a history

of heart attack. He sleeps on the bottom bunk of a 430-square-foot 12-man room, in which 6 bunk

beds, 12 lockers, and a small table are crammed. He shares TV rooms, computers, phones,

bathrooms, and mealtimes with 250 to 300 other men in his building in the west compound of Fort

Dix’s main facility. In the past two weeks, he has watched staff remove a man from the TV room

who complained of chest pain and shortness of breath, seen medics rushing in and out of the

building in which sick people are housed, and witnessed sick men pounding on windows in that

2 See id. at ¶ 39. 3

Case 1:20-cv-05496-RMB Document 1 Filed 05/04/20 Page 4 of 56 PageID: 4

building. Petitioner Wragg has no prior convictions and is serving a sentence for financial crimes.

He is medically vulnerable to COVID-19 and has one or more disabilities recognized by the

Rehabilitation Act. If his custody were enlarged to include home confinement or if he were

released, he would live with his wife in Maryland, where he could safely socially distance and has a team of doctors familiar with his chronic medical conditions.3

8.

Petitioner Michael Scronic, BOP Register Number 79605-054, is 48 years old and

has a history of abnormal heart symptoms, severe childhood asthma, and skin cancer. He is housed

at the “Camp”—Fort Dix’s minimum-security satellite facility—in a dorm-style room with, until

recently, approximately 140 people. Over the last month and a half, he has watched people cough,

vomit, collapse, sweat feverishly, and complain of other COVID-19-related symptoms. A number

of people he has lived with have now tested positive for COVID-19. Petitioner Scronic is serving

an eight-year sentence for financial crimes, his first offense. He is medically vulnerable to COVID-

19 and has one or more disabilities recognized by the Rehabilitation Act. If his custody were

enlarged to include home confinement or if he were released, he would live with his sister and her

two children in New York where he could safely socially distance and where he has an existing

team of doctors.4

9.

Petitioner Leonard Bogdan, BOP Register Number 07918-088, is 68 years old and

is classified by the BOP as a “chronic care inmate.” He has a heart condition, hypertension, high

cholesterol, skin cancer, a potentially cancerous thyroid nodule that causes rapid heartbeat, and

severe scoliosis that has displaced his kidneys and presses on his lungs causing chronic shortness

3 See generally, Ex. 4, Declaration of Troy Wragg (“Wragg Decl.”). 4 See generally, Ex. 5, Declaration of Michael Scronic (“Scronic Decl.”).
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of breath. He is housed in an honor unit in the Fort Dix main facility’s west compound. He comes into contact with hundreds of other people in his building each day, including through shared TV rooms, phones, computers, bathrooms, and mealtimes in which 230 people go to and from the dining hall to pick up food together. At least three people in his building have exhibited some symptoms of COVID-19 over the past month and a half. Petitioner Bogdan has already served a substantial share of his sentence for financial crimes. He has no prior offenses. He is medically vulnerable to COVID-19 and has one or more disabilities recognized by the Rehabilitation Act. If his custody were enlarged to include home confinement or if he were released, he would live with his wife in West Virginia, where he could safely socially distance.5
10. Petitioner Eliezer Soto-Concepcion, BOP Register Number 72850-067, is 38 years old and has high blood pressure, a history of heart attacks, and a nervous system condition that makes his hands shake. He lives in the Camp. For weeks, people around him have been exhibiting symptoms of COVID-19, and recently many of his friends tested positive. Petitioner SotoConcepcion is serving a 12-year sentence for conspiracy to distribute and possession with intent to distribute controlled substances and has no prior convictions. He is medically vulnerable to COVID-19 and has one or more disabilities recognized by the Rehabilitation Act. If his custody were enlarged to include home confinement or if he were released, he would live with his grandmother in Puerto Rico, where he could safely socially distance.6
11. Respondent David E. Ortiz is the Warden at Fort Dix. As Warden, Respondent Ortiz is responsible for and oversees all day-to-day activity at Fort Dix. He is in charge of all
5 See generally, Ex. 6, Declaration of Leonard Bogdan (“Bogdan Decl.”). 6 See generally, Ex. 7, Declaration of Eliezer Soto-Concepcion (“Soto-Concepcion Decl.”).
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aspects of the operations and functions of Fort Dix. His responsibilities include ensuring the safety of all in the institution and ensuring that the institution operates in an orderly fashion. Respondent Ortiz is aware of and has adopted and enforced policies that leave Petitioners and all those similarly situated exposed to infection, severe illness, and death due to COVID-19. Respondent Ortiz has also declined to release people who qualify under BOP and Department of Justice guidance despite having the authority to do so. Respondent Ortiz is the immediate and physical custodian responsible for the detention of the Petitioners. He is sued in his official capacity only.
12. Respondent Michael Carvajal is the Director of the Federal Bureau of Prisons. As Director, Respondent Carvajal is responsible for all BOP policies implemented at Fort Dix, including those pertaining to resource distribution and factors that BOP facility leadership should consider in determining an incarcerated individual’s eligibility for early release. His responsibilities include ensuring the safety of all in the BOP system and ensuring that institutions operate in an orderly fashion. Respondent Carvajal is aware of and has adopted and enforced policies that leave Petitioners and all those similarly situated exposed to infection, severe illness, and death due to COVID-19. He is sued in his official capacity only.
JURISDICTION AND VENUE 13. The Petitioners bring this action pursuant to 28 U.S.C. § 2241 for release from custody that violates the Eighth Amendments to the U.S. Constitution, and pursuant to 28 U.S.C. § 1331 for relief from conditions of confinement that are in violation of the Eighth Amendment and the Rehabilitation Act, 29 U.S.C. § 794. 14. The Court has subject-matter jurisdiction over this Petition pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 2241 (habeas corpus). In addition, the Court has
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jurisdiction to grant declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201.
15. Venue is proper in the District of New Jersey 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 continues to occur in this district.
16. This Court has personal jurisdiction over Respondents because at all times relevant to this action Respondent Ortiz has been employed at Fort Dix in Burlington County, New Jersey, and all the actions and omissions at issue occurred at Fort Dix. Respondent Carvajal has set policies and issued guidance that Respondent Ortiz has applied at Fort Dix in Burlington County, New Jersey.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 17. Petitioner Wragg made three applications for Compassionate Release and/or Home Confinement to Respondent Ortiz. On April 24, he received a letter from Respondent Ortiz denying them. 18. Petitioner Bogdan applied for Compassionate Release from Respondent Ortiz and was denied. He appealed the denial administratively to the BOP Regional Office and received an ultimate denial from Washington, D.C. He has not sought judicial review of the denial. On April 20, 2020, Petitioner Bogdan was also informed in writing by his case manager that he was denied release on Home Confinement. 19. Petitioner Scronic applied for Compassionate Release from Respondent Ortiz on April 6 and/or April 9. Petitioner Soto-Concepcion applied for Compassionate Release from Respondent Ortiz in mid-April. Neither has received a response.
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20. All Named Petitioners have exhausted the administrative remedies available to them. To the extent they are deemed not to have exhausted, Petitioners are all excused from 28 U.S.C. § 2241’s exhaustion requirement. The exhaustion requirement does not apply when the petitioner is likely to suffer an irreparable injury without immediate judicial relief or where the administrative remedy would be futile. Here, both exceptions are met. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n.2 (3d Cir. 2005) (noting that a petitioner’s failure to exhaust will be excused where exhaustion would be futile); Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988) (noting that “[e]xhaustion is not required if administrative remedies would be futile, if the actions of the agency clearly and unambiguously violate statutory or constitutional rights, or if the administrative procedure is clearly shown to be inadequate to prevent irreparable injury”); United States v. Colvin, No. 3:19-CR-179, 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020) (finding that petitioner seeking compassionate release relating to COVID-19 exhausted administrative remedies where exhaustion would be futile, the administrative process would be incapable of granting adequate relief, and pursuing agency review would subject petitioner to undue prejudice).
21. Here, exhaustion is excused because no matter how quickly Petitioners pursue additional administrative process beyond what they already have, the harm they suffer while waiting for exhaustion is irreparable. The densely populated conditions and facility design at Fort Dix expose Petitioners, each of whom has medical conditions that make him more susceptible to severe illness and death from COVID-19, to heightened risk of exposure to the disease, in violation of their constitutional rights. Such constitutional injury is irreparable. As a practical matter, Petitioners cannot meaningfully engage in any administrative-remedy process quickly enough to protect them from the risk of contracting COVID-19 from the people in the facility who have already contracted the virus and the catastrophic health consequences such infection would cause.
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Petitioners thus will remain exposed to irreparable injury if they do not receive immediate judicial relief.
22. Independently, exhaustion is futile because Respondents cannot or will not provide the relief requested in this petition. The only administrative process even ostensibly available to Petitioners here is the BOP’s Administrative Remedy Program (ARP). However, ARP is a lengthy process that does not provide the requested relief of enlargement of custody or, ultimately, release. It would have been futile for Petitioners to engage in ARP in advance of this case.
23. In sum, the extraordinary circumstances of an existing COVID-19 outbreak already at Fort Dix—especially the risk it poses to medically vulnerable individuals housed there such as Petitioners—render further exhaustion a total barrier to any effective relief. For each of these independent reasons, to whatever extent Petitioners are deemed not to have exhausted by virtue of their compassionate release and/or home confinement applications, Petitioners are excused from the requirement of exhausting administrative remedies.
FACTUAL ALLEGATIONS I. The COVID-19 Crisis 24. The novel coronavirus that causes COVID-19 has led to a global pandemic. As of May 4, 2020, worldwide there are over 3 million reported COVID-19 cases and 238,730 confirmed deaths.7 In the United States, the case count stands at 1,122,486 and the death count at 65,735.8
7 World Health Org., Coronavirus disease (COVID-19) Pandemic, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed May 4, 2020). 8 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last accessed May 4, 2020).
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25. New Jersey has been at the epicenter of the pandemic, ranking second in the United States in the number of people reported to have tested positive with the coronavirus, and in the number of people who have died. Its case count as of May 4 is 126,744, including 3,043 in Burlington County. The death count in New Jersey is 7,871, including 149 in Burlington County.9
26. In addition to the 3,043 confirmed cases of COVID-19 reported in Burlington County, neighboring New Jersey counties (Atlantic, Camden, Mercer, Monmouth, and Ocean City) reporting another 22,713 confirmed cases, combined.10 Approximately 20.3 percent of the 126,744 confirmed COVID-19 cases in New Jersey are in Burlington and its neighboring counties.11 Moreover, Burlington’s two neighboring Pennsylvania counties (Philadelphia County and Bucks County) report 13,179 and 3,286 confirmed cases, respectively.12
27. The virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.13 Infected people can spread the virus to others even if they are asymptomatic, such that simply avoiding people who are coughing or visibly feverish is insufficient.
9 New Jersey COVID-19 Dashboard, https://covid19.nj.gov/#live-updates (last accessed May 4, 2020). 10 Id. 11 Id. 12 Pa. Dep’t of Health, COVID-19 Cases in Pennsylvania, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed May 4, 2020). 13 See Goldenson Decl. ¶ 13; see also Ex. 2, Declaration of Nina Fefferman (“Fefferman Decl.”) ¶ 4 (noting that COVID-19 infection spreads exponentially because the virus transmits very easily).
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28. According to the CDC, people who suffer from certain underlying medical conditions, many of which qualify as disabilities under the Rehabilitation Act, face elevated risk.14 Such conditions include chronic lung disease, moderate to severe asthma, serious heart conditions, hypertension, high blood pressure, chronic kidney disease, liver disease, diabetes, compromised immune systems (such as from cancer treatment, HIV, autoimmune disease, or use of immunosuppressing medication for other conditions), and severe obesity.15 One analysis found mortality rates of 13.2% for patients with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.16
29. In many people, COVID-19 causes fever, cough, and shortness of breath. But for people over the age of fifty or with medical conditions that increase the risk of serious COVID19 infection, shortness of breath can be severe. Most people in higher-risk categories who develop serious illness will need advanced support. This level of supportive care requires highly specialized equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists, and intensive-care physicians.17
30. In patients who do not die, COVID-19 can severely damage lung tissue, requiring an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. COVID-19 may also target the heart muscle, causing a medical condition called
14 CDC, Groups at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/groups-at-higher-risk.html (last accessed Apr. 29, 2020). 15 Id. 16 World Health Org., Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) at 12 (Feb. 28, 2020), https://www.who.int/docs/default-source/coronaviruse/whochina-joint-mission-on-covid-19-final-report.pdf; see also Fefferman Decl. ¶ 7. 17 See Fefferman Decl. ¶ 9 (noting that 30% of patients who develop severe symptoms require intensive care to survive).
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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.18
31. 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.19
32. Even some younger and healthier people who contract COVID-19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.20
33. The estimated fatality rate associated with COVID-19 has been estimated to range from 0.1 to 3.5 percent, meaning COVID-19 may be as much as 35 times more fatal than seasonal influenza.21 Although many people who contract COVID-19 will exhibit relatively mild
18 Cynthia Weiss, How does COVID-19 affect the heart?, Mayo Clinic News Network (Apr. 3, 2020), https://newsnetwork.mayoclinic.org/discussion/how-does-covid-19-affect-the-heart/. 19 Lenny Bernstein et al., Coronavirus destroys lungs. But doctors are finding its damage in kidneys, hearts and elsewhere, Wash. Post (Apr. 15, 2020), https://www.washingtonpost.com/health/coronavirus-destroys-lungs-but-doctors-are-finding-itsdamage-in-kidneys-hearts-and-elsewhere/2020/04/14/7ff71ee0-7db1-11ea-a3ee13e1ae0a3571_story.html; Aria Bendix, A Day-By-Day Breakdown of Coronavirus Symptoms Shows How the Disease COVID-19 Goes from Bad to Worse, Business Insider (Mar. 31, 2020), https://www.businessinsider.com/coronavirus-covid19-day-by-day-symptoms-patients-2020-2. 20 See Fefferman Decl. ¶ 23. 21 Goldenson Decl. ¶ 8.
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symptoms, the virus will manifest in some 20 percent of cases as a “more severe disease requiring medical intervention and support.”22
34. There is no vaccine against COVID-19 and there is no known medication to prevent or treat infection from COVID-19. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including frequently and thoroughly washing hands with soap and water and cleaning and disinfecting high-touch surfaces, are the only known effective measures for protecting people from COVID-19.23 This is especially significant because the virus can spread through people who appear asymptomatic.24
35. State and local officials have been taking aggressive action in New Jersey. On March 9, in response to then-emerging coronavirus outbreak, Governor Murphy signed Executive Order No. 103 declaring a State of Emergency and a Public Health Emergency in New Jersey,25 doing so even before the President had declared a national emergency.26 A week later, on March 16, Governor Murphy issued Executive Order No. 104, which limited gatherings to a maximum of 50 people; closed schools, casinos, movie theaters, gyms, and dine-in restaurants; and imposed a curfew between 8:00 PM and 5:00 AM on all but “essential” businesses (e.g., grocery stores, pharmacies, gas stations, and health care facilities).27
22 Id. 23 Id. at ¶ 16; Fefferman Decl. ¶¶ 10–11, 25. 24 Goldenson Decl. ¶ 28. 25 N.J. Exec. Order No. 103 (Mar. 9, 2020), available at https://nj.gov/infobank/eo/056murphy/pdf/EO-103.pdf. 26 See Charlie Savage, Trump Declared an Emergency Over Coronavirus. Here’s What It Can Do., N.Y. Times (Mar. 13, 2020), https://www.nytimes.com/2020/03/13/us/politics/coronavirusnational-emergency-html. 27 N.J. Exec. Order No. 104 (Mar. 16, 2020), available at https://nj.gov/infobank/eo/056murphy/pdf/EO-104.pdf.
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36. On March 21, 2020, Governor Murphy issued Executive Order No. 107 requiring

all New Jersey residents to “remain home or at their place of residence” unless it is for one of the

enumerated exempted purposes, such as grocery shopping or seeking medical attention. 28

37. Local officials have also taken measures aimed at slowing the virus’s spread. For

example, on March 25, Newark Mayor Ras Baraka issued a “shelter-in-place” order similar in

scope to Governor Murphy’s E.O. 107.29

II.

Incarcerated People and Staff Are Particularly Vulnerable.

38. People in congregate environments such as correctional facilities, where people

live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already

evidenced by the rapid spread of the virus in cruise ships30 and nursing homes.31 People who are

confined in prisons, jails, and detention centers find it virtually impossible to engage in the

necessary social distancing and hygiene required to mitigate the risk of transmission, even with

the best laid plans. These settings are particularly vulnerable to what the CDC calls “community

28 N.J. Exec. Order No. 107 (Mar. 21, 2020), available at https://nj.gov/infobank/eo/056murphy/pdf/EO-107.pdf. 29 See Eric Kiefer, Entire City Of Newark Told To Shelter In Place: Coronavirus, Patch (Mar. 26, 2020), https://patch.com/new-jersey/newarknj/entire-city-newark-told-shelter-place-coronavirus. 30 E.g., Jason Hanna & Melissa Alonso, Coral Princess Docks in Miami With 2 Dead and Several Ill of Coronavirus, After Ports Shunned it For Days, CNN (Apr. 4, 2020), https://www.cnn.com/2020/04/04/us/coral-princess-cruise-ship-docks-miamicoronavirus/index.html. 31 E.g., Stacey Burling, Assume Coronavirus is Already There, Says a Philly Nursing Home Doctor Who Learned the Hard Way, Phila. Inquirer (Apr. 3, 2020), available at https://www.inquirer.com/health/coronavirus/coronavirus-renaissance-nursing-homephiladelphia-20200403.html; see also Suzy Khimm & Laura Strickler, Nursing Homes Overwhelmed By Coronavirus, NBC News (Apr. 1, 2020), https://www.nbcnews.com/news/usnews/nursing-homes-overwhelmed-coronavirus-it-impossible-us-stop-spread-n1174171.
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spread,” where the virus spreads easily and sustainably within a community even where the source of the infection is unknown.32
39. Correctional facilities increase the risk of rapid spread of an infectious disease, like
COVID-19, because of the high numbers of people with chronic, often untreated, illnesses housed
in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others.33
40. The CDC has issued guidance urging prison administrators to take action to prevent overcrowding of correctional and detention facilities during a community outbreak.34 The CDC
guidance emphasizes that social distancing is “a cornerstone of reducing transmission of respiratory disease such as COVID-19.”35 It calls not only for social distancing, but also measures
for isolating and quarantining detainees and staff who have (or are suspected of having) COVID-
19 from those who do not have (or presumably do not have) the virus.
41. Many correctional facilities find implementation of these preventive strategies
challenging without a significant reduction in prison populations.
32 See Fefferman Decl. ¶ 19 (“[D]espite best efforts to increase personal hygiene and social distancing practices, and to reduce inmate movements and suspend access to members of the public (contractors, visitors, and legal professionals), prisons are inherently incapable of reducing the risks of transmission to those seen in the broader community.”). 33 See generally I.A. Binswanger et al., Prevalence of Chronic Medical Conditions Among Jail and Prison Inmates in the USA Compared With the General Population, 63 J. Epidemiology & Community Health 912 (2009) (concluding that people incarcerated in U.S. jails and prisons had a higher burden of most chronic medical conditions than the general population, even when adjusting for sociodemographic differences and alcohol consumption). 34 U.S. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (CDC Guidance) (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html. 35 Id.
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42. As a general matter, correctional facilities frequently lack sufficient medical
supplies for the population, and, in times of crisis, medical staff may cease coming to the facilities.
Hot water, soap, and paper towels are often in limited supply. Incarcerated people themselves,
rather than professional cleaners, are often responsible for cleaning the facilities and often are not
given appropriate supplies. This means there are more people who are susceptible to infection all congregated together in a location where fighting the spread of an infection is nearly impossible.36
43. The difficulty correctional facilities have complying with CDC guidance is
demonstrated by a few examples. A recent COVID-19 outbreak in an Arkansas state prison quickly spread to 43 out of 46 prisoners in a single housing unit.37 In New Jersey, the New Jersey
Department of Corrections (NJDOC) reported 29 prisoner deaths in New Jersey correctional
facilities (as of April 27) and that of the 184 people incarcerated in NJDOC facilities who have been tested, almost 80 percent have tested positive.38 The Essex County Correctional Facility, the
first correctional facility in the state to screen its population, found that of the first 91 incarcerated people it tested, over half tested positive for the virus or for antibodies.39 Other nearby correctional
36 See Goldenson Decl. ¶ 36; Fefferman Decl. ¶ 22. 37 43 Arkansas state inmates test positive for COVID-19, ABC 20/49 (Apr. 13, 2020), https://www.4029tv.com/article/43-arkansas-state-inmates-test-positive-for-covid-19/32131327; see generally In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus— 96%Without Symptoms, N.Y. Times (April 25, 2020), https://www.nytimes.com/reuters/2020/04/25/us/25reuters-health-coronavirus-prisons-testinginsight.html?searchResultPosition=8. 38 NJDOC, COVID-19 Updates (last updated Apr. 27, 2020), https://www.state.nj.us/corrections/pages/COVID19Updates.shtml; see also Alice Speri, In New Jersey Prisons, 29 Coronavirus Deaths and Only 184 Tests, The Intercept (Apr. 28, 2020), https://theintercept.com/2020/04/28/coronavirus-new-jersey-prisons/. 39 Blake Nelson, Sick N.J. Corrections Officer Had to Get Coronavirus Test on His Own. Why Aren’t Prisons Testing More?, NJ.com (Apr. 20, 2020), https://www.nj.com/coronavirus/2020/04/sick-nj-prison-guard-had-to-get-coronavirus-test-onhis-own-why-arent-prisons-testing-more.html; Joe Atmonavage, N.J. County Jail Will Be First to
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centers have found similarly high rates of transmission upon commencing testing.40 This week, the BOP revealed that, of the 2,700 prisoners nationwide it had tested, nearly 2,000—over 70 percent—were positive.41
44. For these reasons, correctional public health experts have recommended the release from custody of people most vulnerable to COVID-19. Exercising authority to enlarge custody or release detainees protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and it also allows for greater risk mitigation for all people held or working in a prison, jail, or detention center. Release of the most vulnerable people from custody also reduces the burden on the region’s health-care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. As leading pandemic-preparedness expert Professor Nina Fefferman observed, “Epidemiologically, the only way to meaningfully reduce the risks posed to the entire population— inmates, staff, and public—is to drastically reduce the prison population.”42
45. Courts have responded to this public call to reduce the incarcerated populations. For example, on March 22, in response to the “dangers posed by the Coronavirus,” the New Jersey Supreme Court ordered the presumptive release of all people currently serving a county jail sentence, an order that resulted in the release of hundreds of people. In the Matter of the Request
Screen All Inmates for Coronavirus Using New Test Method, NJ.com (Apr. 16, 2020), https://www.nj.com/coronavirus/2020/04/nj-county-jail-will-be-first-to-screen-all-inmates-forcoronavirus-using-new-testing-method.html. 40 Laura Benshoff, Coronavirus Update: Montco Finds Widespread, Silent Spread in Prisons, WHYY (Apr. 27, 2020), https://whyy.org/articles/coronavirus-update-air-force-navy-releasemap-for-tuesdays-flyover-to-thank-frontline-workers/. 41 Michael Balsamo, Over 70% of tested inmates in federal prisons have COVID-19, AP (Apr. 29, 2020), https://apnews.com/fb43e3ebc447355a4f71e3563dbdca4f. 42 Fefferman Decl. ¶ 25; see generally id. ¶¶ 17–26.
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to Commute or Suspend County Jail Sentences, Consent Order, No. 084230 (N.J. Mar. 22, 2020).43
High courts in other states have issued similar orders aimed at reducing state prison populations.44
46. Officials in New Jersey have echoed the calls to release vulnerable people.
Recognizing the possibility of such perilous outcomes, the “challenges associated with
maintaining traditional social distancing in correctional settings,” and the “heightened risk of death
and serious injury” for “these particularly vulnerable individuals,” Governor Murphy issued
Executive Order No. 124 on April 10 to begin the process of “temporarily” releasing certain
individuals in state prisons serving sentences for nonviolent crimes.45
47. Absent such measures, transmission in prisons and jails will not only endanger the
incarcerated, but also burden local hospitals and endanger the broader community. Correctional
facilities lack adequate medical facilities to treat serious COVID-19 cases, so an outbreak in a
43 The order provided a mechanism for prosecutors, within 24-to-48 hour, to object to the release of specific prisoners who “would pose a significant risk to the safety of the inmate or the public,” with such objections to be considered by judges or special masters appointed by the Supreme Court, with provisional representation by the Office of the Public Defender for prisoners for whom objections were filed. 44 See, e.g., In re: The Petition of the Pennsylvania Prison Society et al., No. 70 MM 2020 (Pa. Apr. 3, 2020), available at https://law.justia.com/cases/pennsylvania/supreme-court/2020/70mm-2020.html (Pennsylvania Supreme Court ordered the chief judge of all counties to “immediately” engage in a review of the “current capabilities of their county correctional institutions . . . to address the spread of COVID-19,” “to ensure that the county correctional institutions in their districts address the threat of COVID-19,” as necessary “to identify individuals of incarcerated persons for potential release” and “to undertake efforts to limit the introduction of new inmates into the county prison system.”); Comm. for Pub. Counsel Servs. v. Chief Justice of the Trial Court, No. SJC-12926 (Mass. Apr. 3, 2020), available at https://www.mass.gov/files/documents/2020/04/03/12926.pdf (Massachusetts Supreme Court ruled that pre-trial detainees not charged with certain violent offenses, as well as incarcerated individuals held on technical probation and parole violations, is entitled to a rebuttable presumption of release). 45 N.J. Exec. Order No. 124 (Apr. 10, 2020), available at http://d31hzlhk6di2h5.cloudfront.net/20200410/c0/64/ce/2c/0ef068b5d2c6459546c33a46/EO124.pdf.
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prison could overwhelm local hospitals. And as correctional staff enter and leave the facility, they
will carry the virus with them. Like the incarcerated people in the facilities where they work,
correctional officers face an increased risk of COVID-19 exposure because they are less able to
engage in social distancing and because of the shortage of personal protective equipment, also
known as PPE. Indeed, as of May 3, the BOP had reported 498 confirmed past and present
infections among its prison staff nationwide.46
48. On an accelerating basis since mid-March of this year, courts in this Circuit and
across the country have ordered the release of prisoners and detainees in response to the COVID-
19 crisis.47
46 See Fed. Bureau of Prisons, COVID- 19, https://www.bop.gov/coronavirus/ (last accessed May 4, 2020). 47 See, e.g., Arriaga Reyes. v. Decker, No. 2:20-cv-03600 (D.N.J. Apr. 12, 2020) (ordering five petitions for immediate release of ICE detainees from New Jersey facilities); Basank v. Decker, No. 1:20-cv-02518 (S.D.N.Y. Mar. 26, 2020) (ordering release of ten individuals detained by ICE housed in New Jersey county jails because of preexisting medical conditions); United States v. Xue, No. 18-CR-122, ECF 42 (E.D. Pa. Apr. 10, 2020) (ordering pretrial release in light of compelling reason of COVID-19, subject to requirements); United States v. Giordano, No. 14CR-206, ECF 72 (E.D. Pa. Apr. 10, 2020) (granting release of petitioner with medical conditions rendering him particularly vulnerable to the effects of COVID-19 and that petitioner’s fear of infection while incarcerated far outweighs any likelihood of fleeing); United States v. Rodriguez, No. 03-CR-271, ECF 135 (E.D. Pa. Apr. 1, 2020) (granting motion for compassionate release where the presence of COVID-19, the inmate’s health conditions, the proximity to his release date, and his demonstration of rehabilitation created extraordinary and compelling reasons justifying release); United States v. Colvin, No. 3:19-CR-179, 2020 U.S. Dist. LEXIS 57962 (D. Conn. 2020) (waiving exhaustion requirement and granting motion or compassionate release for vulnerable inmate at FDC Philadelphia where “the risks faced by the Defendant will be minimized by her immediate release to home, where she will quarantine herself”); Coronel v. Decker, No. 20 Civ. 2472, ECF 26 (S.D.N.Y. Mar. 27, 2020) (granting release of four detainees with medical conditions that render them particularly vulnerable to severe illness or death if infected by COVID-19); People of State of N.Y. ex rel. Stoughton v. Brann, No. 451078/2020, 2020 NY Slip Op 20081 (N.Y. Sup. Ct. Apr. 6, 2020) (“[C]ommunicable diseases could not ask for a better breeding ground than a crowded prison. . . . Certainly no American prison is equipped to deal with a health crisis of the severity of this one.”).
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III. The Efforts of the Bureau of Prisons Are Inadequate. 49. The BOP has failed to respond effectively to the COVID-19 pandemic. The BOP failed to anticipate and prepare for the magnitude of the threat that COVID-19 poses to its own staff and the people it detains; it then failed to respond in any meaningful way to initial signs of uncontrolled outbreaks at several of its facilities across the country, including Fort Dix; and it has continued to fail to implement even the baseline measures that would assure the safety of its own staff, of Petitioners and their fellow class members and others incarcerated by the BOP, and of the communities into which staff and others travel on a daily basis. BOP’s primary and ongoing failure has been its unwillingness to implement social distancing, despite clear public health guidance that it is necessary to prevent COVID-19 infection. 50. The BOP’s preparations were inadequate from the start. Initial guidance from the BOP was not issued until March 9, and it addressed only the possibility of telework for some employees at an agency where the vast majority of workers must physically appear at facilities to do their jobs, and it mentioned restrictions only for people who had traveled to already-impacted countries.48 51. Moreover, the BOP did not make any changes to protocols that call for prisoners to purchase their own cleaning supplies from commissary—preventing many indigent and poor prisoners from being able to buy those supplies—and for them to maintain responsibility for cleaning and sanitizing their spaces (whether they have supplies or not).49
48 See BOP Memorandum (Mar. 9, 2020), https://cdn.govexec.com/media/gbc/docs/pdfs_edit/031020cb.pdf. 49 See, e.g., Inmate Information Handbook, Federal Bureau of Prisons FCI Elkton, Ohio at 9, Bureau of Prisons (2012), https://www.bop.gov/locations/institutions/elk/ELK_aohandbook.pdf.
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52. In fact, as late as March 26—weeks after many cities and states had closed
restaurants and non-essential businesses, restricted travel, and ordered people to shelter in place—
the BOP Director announced that the BOP had merely taken an inventory of soap, rather than taken steps to distribute it at no cost or even at a reduced cost.50
53. Because of the BOP’s failure to take the threat seriously or to take meaningful steps
to prepare, stakeholders from every part of the system highlighted preparations that it had not
undertaken, possible dangers faced by employees, and open questions that required urgent attention and answers.51
54. Similarly, before the BOP began losing control of COVID-19 in its facilities, press accounts had already highlighted the impending storm.52
55. Among other failures that contributed to spread at BOP facilities, officers reported
that even as of late March, they were given only gloves—not masks, face shields, or other PPE— when interacting with prisoners sick enough to require transport to the hospital.53 Those same
50 That day the BOP Director issued a statement that “all cleaning, sanitation, and medical supplies have been inventoried. Ample supplies are on hand and ready to be distributed or moved to any facility as deemed necessary.” Fed. Bureau of Prisons, Statement from BOP Director (Mar. 26, 2020), available at https://www.bop.gov/resources/news/20200326_statement_from_director.jsp. 51 See Letter from U.S. Senators Warren, Booker et al., (Mar. 9, 2020), available at https://www.warren.senate.gov/imo/media/doc/2020-0309%20Senator%20Warren%20Letter%20to%20BOP%20re%20Coronavirus.pdf; see also AFGE Testimony to House Oversight Committee (Mar. 11, 2020), available at https://www.afge.org/globalassets/documents/congressional-testimony/2020/afge-sfr-housecommittee-on-oversight-and-reform-coronavirus-preparedness-and-response.pdf. 52 See, e.g., Michael Balsamo & Michael R. Sisak, Federal Prisons Struggle to Combat Growing COVID-19 Fears, AP (Mar. 27, 2020), https://apnews.com/724ee94ac5ba37b4df33c417f2bf78a2. 53 Joseph Neff & Keri Blakinger, Federal Prisons Agency “Put Staff in Harm’s Way” of Coronavirus: Orders at Oakdale in Louisiana Help Explain COVID-19 Spread, The Marshall
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officers were ordered back to the job in defiance of CDC guidance that called for self-isolation by correctional staff who had been exposed.54
56. Unicor, an entity that runs prisoner work programs for the BOP, continued operating throughout the pandemic and did not began distributing masks to prisoner workers and correctional officers until about April 2, 2020.55
57. Across facilities, the BOP has been “scrambling” to address staffing and resource needs. Despite this, the BOP has continued to limit the number of contractors who can supply PPE, does not have enough tests, and has been sued by its own staff for requiring them to work in hazardous working conditions.56
58. When the BOP loses control at a facility, dozens of prisoners must go to local hospitals, straining the local healthcare infrastructure, as well.
59. The consequences of BOP’s failures have been dramatic. Nationwide, in the first ten days after the BOP announced positive cases in its facilities, the average percentage increase in infections in BOP facilities was 2,500 percent.
60. Federal facilities all over the country—including in the Mid-Atlantic region—have been overrun with the virus. Facilities with uncontrolled outbreaks include:
Project (Apr. 3, 2020), https://www.themarshallproject.org/2020/04/03/federal-prisons-agencyput-staff-in-harm-s-way-of-coronavirus. 54 Id. 55 Cary Aspinwall, Keri Blakinger, & Joseph Neff, Federal Prison Factories Kept Running as Coronavirus Spread, The Marshall Project (Apr. 10, 2020), https://www.themarshallproject.org/2020/04/10/federal-prison-factories-kept-running-ascoronavirus-spread. 56 Luke Barr, Federal Prisons Facing Shortages of Resources Amid Coronavirus Outbreak, ABC News (Apr. 1, 2020), https://abcnews.go.com/Health/federal-prisons-facing-shortages-resourcesamid-coronavirus-outbreak/story?id=69920966.
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• FCI Danbury, in Connecticut (43 combined current positive tests as of April 28 and 1 prisoner death);

• FCI Butner, in North Carolina (221 combined current positives as of April 28 and 5 prisoner deaths);

• USP Lompoc, in California (85 combined current positives as of April 28 and 1 prisoner death);

• FMC Fort Worth, in Texas (242 combined current positives as of April 28 and 3 prisoner deaths);

• FCI Terminal Island, in California (453 combined current positives as of April 28 and 2 prisoner deaths);

• FCI Elkton, in Ohio (93 combined current positives as of April 28 and 7 prisoner deaths); and

•

FCI Forrest City, in Arkansas (44 combined current positives as of April 28).57

61. Even those figures are almost certainly an undercount. The BOP has repeatedly understated the scope of the problem and refused to take steps to assess the situation transparently. For example, as of April 6, the BOP had reported eight prisoners and one staff had tested positive at FCI Elkton.58 Press accounts, however, reported that medical staffing had fallen to fifty percent of capacity, and that three prisoners had already died as of April 6.59 The full scope of the problem

57 See Fed. Bureau of Prisons, COVID- 19, https://www.bop.gov/coronavirus/ (accessed Apr. 29, 2020). 58 Id. 59 Ohio Gov. Mike DeWine Authorized Ohio National Guard to Assist Elkton Prison, WKYC (Apr. 6, 2020), https://www.wkyc.com/article/news/health/coronavirus/ohio-gov-mike-dewineauthorizes-ohio-national-guard-to-assist-elkton-prison/95-d620f3c6-c560-486f-9eacebce7c09d4e7.
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did not become clear until a federal judge ordered the facility to increase testing, after the BOP
admitted that it only had 55 tests on hand for a facility of more than 2,400 prisoners.60
62. Conditions had already deteriorated so thoroughly that Ohio Governor Mike
DeWine called in the state’s National Guard to FCI Elkton, a federal prison.61 At the press
conference announcing that decision, Governor DeWine called on the BOP to stop sending new
prisoners to Elkton.62 And the accuracy of the BOP’s reporting of COVID-19 cases in Elkton is in
doubt.63
63. Ultimately, the U.S. District Court for the Northern District of Ohio ordered
enlargement of custody for medically vulnerable prisoners at FCI Elkton pending resolution of a
class habeas petition on the merits, because of the outbreak already raging at the facility.64
64. Such conditions at numerous facilities across the country have led BOP employees
including corrections officers to file a complaint with the Occupational Safety and Health
60 Judge grills federal prisons lawyer on lack of coronavirus tests at Ohio facility in wake of Trump’s claim that ‘anybody’ can get tested, Cleveland.com (Apr. 18, 2020), https://www.cleveland.com/court-justice/2020/04/judge-grills-federal-prisons-lawyer-on-lack-ofcoronavirus-tests-at-ohio-facility-in-wake-of-trumps-claim-that-anybody-can-get-tested.html. 61 Ohio Gov. Mike DeWine Authorized Ohio National Guard to Assist Elkton Prison, WKYC (Apr. 6, 2020), https://www.wkyc.com/article/news/health/coronavirus/ohio-gov-mike-dewineauthorizes-ohio-national-guard-to-assist-elkton-prison/95-d620f3c6-c560-486f-9eacebce7c09d4e7. 62 Cory Shaffer, Ohio National Guard Will Assist With Response at Elkton Federal Prison, Cleveland.com (Apr. 6, 2020), https://www.cleveland.com/coronavirus/2020/04/ohio-nationalguard-will-assist-with-coronavirus-response-at-elkton-federal-prison.html; see also Brandon Brown, Sen. Portman Urges Prisoners Not to be Transferred to FCI Elkton, WFMJ (Apr. 6, 2020), https://www.wfmj.com/story/41979544/sen-portman-urges-prisoners-not-be-transferredto-fci-elkton. 63 Elkton Union President Reports Different COVID-19 Stats Than Federal Bureau of Prisons, WKVB (Apr. 9, 2020), https://www.wkbn.com/news/coronavirus/elkton-union-presidentreports-different-covid-19-stats-than-federal-bureau-of-prisons/. 64 Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *10 (N.D. Ohio Apr. 22, 2020).
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Administration (OSHA) alleging unsafe conditions at numerous federal prisons nationwide, including Fort Dix. Among other things, the officers’ OSHA complaint points to the BOP having “directed staff through the Bureau of Prisons who have come in contact with, or been in close proximity to, prisoners who show or have shown symptoms of COVID-19, to report to work and not be self-quarantined for 14 days per the CDC guidelines.” It also complains of the BOP having failed to undertake any workplace or administrative controls to address transmission, to require social distancing or other measures in the CDC guidance, or to provide sufficient PPE.65
65. In apparent response, the BOP released a short document titled “Correcting Myths and Misinformation about BOP and COVID-19.”66 In attempting to rebut the assertion that staff who had been in contact with prisoners who showed symptoms of COVID-19 still had to come to work, the BOP simply confirmed that such employees were required to come to work, with masks.67
66. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law on March 27, makes funding available for federal prisons to purchase PPE and test kits for COVID-19 and authorizes the Department of Justice to lengthen the maximum amount of time
65 See Notice of Alleged Safety or Health Hazards (March 31, 2020), available at https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7-formnational-complaint.pdf. 66 See Fed. Bureau of Prisons, Correcting Myths and Misinformation About BOP And COVID-19 (Apr. 11, 2020), https://www.bop.gov/coronavirus/docs/correcting_myths_and_misinformation_bop_covid19.pdf. 67 Id. at 3 (“In keeping with CDC ‘Guidance for Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19,’ the BOP performs pre-screening of all employees reporting to work and requires exposed workers to wear a mask for 14 days after last exposure. They are also expected to perform regular self-monitoring for symptoms, practice social distancing and to disinfect and clean their work spaces. Anyone who develops signs or symptoms of illness are sent home.”).
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that a prisoner can be placed in home confinement during the pandemic.68 Acting under that authority, Attorney General Barr made a finding that emergency conditions are materially affecting the functioning of the BOP, and on April 3 he directed Respondent Carvajal to review prisoners with COVID-19 risk factors to determine their eligibility for home confinement, stating that the BOP’s efforts to prevent COVID-19 from entering BOP facilities and infecting prisoners have “not been perfectly successful at all institutions.”69
67. Attorney General Barr also released guidance in the form of a series of letters suggesting that some BOP prisoners should be released.70 Those letters merely encourage the BOP to exercise discretion that it has declined to use, and they do not actually direct the release of categories of prisoners, much less on a scale that would allow for safe social distancing in the facilities or with the speed that the health crisis requires. Of the relatively small number of people released, the BOP has not reported the number who subsequently died.
68. On April 22, the BOP issued a memo purporting to interpret Attorney General Barr’s guidance, substantially limiting the number and types of people who might qualify for home confinement under the Attorney General’s memos.71 Even though the April 3 Barr memo directed the BOP to “immediately maximize appropriate transfers to home confinement,” including
68 CARES Act, Pub. L. No. 116-136, § 12003(b), 134 Stat. 281 (2020). 69 Memorandum from Attorney General Barr to Director Carvajal (Apr. 3, 2020), available at https://www.justice.gov/file/1266661/download. 70 See Mar. 26, 2020 and Apr. 3, 2020 Memoranda For Director of Bureau Prisons from Attorney General Barr, available at https://www.justice.gov/coronavirus. 71 Memorandum from Correctional Programs Division Acting Assistant Director Andre Matevousian & Reentry Services Division Assistant Director Hugh J. Hurwitz to Chief Executive Officers (Apr. 22, 2020), available at https://famm.org/wp-content/uploads/bopmemo-4.23.2020.pdf.
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prioritizing those at “outbreak prisons,” the BOP’s own guidance excludes the vast majority of prisoners in its custody by adding a number of barriers to consideration for release.
69. The BOP’s April 22 guidance gives wardens virtually unchecked discretion to deny a request for release and imposes unnecessary and impractical barriers on prisoners seeking release. For example, pursuant to the BOP’s guidance: (i) prisoners must have had no disciplinary infractions of any kind for 12 months; (ii) prisoners must provide verification that they would have a lower risk of contracting COVID-19 outside the prison than inside of it, and, (iii) prisoners with any on-going medical care must show their medical needs can be met outside the prison, and that they have a 90-day supply of prescribed medications.
70. The appalling conditions of BOP facilities across the country, and the BOP’s failures to address the constitutional rights of prisoners in its care, have forced federal courts to address BOP failures in a large number of individual cases seeking compassionate release;72 bail
72 E.g., United States v. Rodriguez, No. 03-cr-271, ECF 135 (E.D. Pa. Apr. 1, 2020) (granting release after finding risk factors for COVID-19 constitute extraordinary and compelling reason and noting that prisons are “tinderboxes for infectious disease”); United States v. Foster, No. 14cr-324-02, ECF 191 (M.D. Pa. Apr. 3, 2020) (noting the “unprecedented” circumstances facing “our prison system” and finding that COVID-19 is an extraordinary and compelling basis for release; indeed, “[n]o rationale is more compelling or extraordinary”); United States v. Smith, No. 12-cr-133, ECF 197 (S.D.N.Y. Apr. 13, 2020) (granting release; finding exhaustion waivable and waived); United States v. Zukerman, No. 16-cr-194, ECF 116 (S.D.N.Y. Apr. 3, 2020) (waiving exhaustion and granting immediate compassionate release in light of COVID-19 to defendant convicted in multi-million dollar fraud scheme); United States v. Sawicz, No. 08-cr287, ECF 66 (E.D.N.Y. Apr. 10, 2020) (releasing child-pornography offender); United States v. Clagett, No. 97-cr-265, ECF 238 (W.D. Wash. Apr. 9, 2020); United States v. Oreste, No. 14-cr20349, ECF No. 200 (S.D. Fla. Apr. 6, 2020); United States v. Hakim, No. 05-cr-40025, ECF 158 (D.S.D. Apr. 6, 2020); United States v. Hernandez, No. 18-cr-20474, ECF 41 (S.D. Fla. Apr. 2, 2020).
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pending appeal, trial, or sentencing;73 delayed self-surrender;74 writs of habeas corpus;75 classwide relief for groups of prisoners;76 and furloughs.77
71. As noted, the Northern District of Ohio ordered FCI Elkton to release potentially
hundreds of medically vulnerable prisoners who face a greater threat from COVID-19. It did this
because Elkton had “altogether failed” to follow CDC guidance for correctional settings, and that the measures were “necessary to stop the spread of the virus and save lives.”78
72. Rather than proactively address any of the conditions that place people in BOP
custody at risk of illness or death, the BOP has focused instead on spending money on purchasing
73 E.g., United States v. Chavol, No. 20-50075 (9th Cir. Apr. 2, 2020) (stipulation in a FRAP(9) appeal to release on conditions); United States v. Nkanga, No. 18-cr-713, ECF 120 (S.D.N.Y. Apr. 7, 2020); United States v. Hector, No. 2:18-cr-3-2, ECF 748 (W.D. Va. Mar. 27, 2020). 74 United States v. Roeder, No. 20-1682, ___ F. App’x ___ (3d Cir. Apr. 1, 2020) (reversing district court’s denial of defendant’s motion to delay execution of his sentence because of the COVID-19 pandemic); United States v. Garlock, No. 18-CR-418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (observing that “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); United States v. Matthaei, No. 19-CV-243, 2020 WL 1443227, at *1 (D. Idaho Mar. 16, 2020) (extending self-surrender date by 90 days in light of pandemic). 75 E.g., Xochihua-James v. Barr, No. 18-71460, ___ F. App’x ___ (9th Cir. Mar. 23, 2020) (sua sponte releasing detainee from immigration detention “in light of the rapidly escalating public health crisis”); Fraihat v. Wolf, No. 5:20-CV-590, ECF 18 (C.D. Cal. Mar. 30, 2020). 76 E.g., In re Request to Commute or Suspend County Jail Sentences, Docket No. 084230 (N.J. Mar. 22, 2020) (releasing large class of defendants serving time in county jail “in light of the Public Health Emergency” caused by COVID-19). 77 E.g., United States v. Stahl, No. 18-cr-694, ECF 53 (S.D.N.Y. Apr. 10, 2020); United States v. Underwood, No. 18-cr-201, ECF 179 (D. Md. Mar. 31, 2020) (noting that although there has not yet been a positive COVID-19 test in elderly petitioner’s facility, “there is significant potential for it to enter the prison in the near future”). 78 Wilson, 2020 WL 1940882, at *8.
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hydroxychloroquine, an unproven remedy that medical authorities do not believe will work to treat
COVID-19.79
73. For all of these reasons, the threat posed to people incarcerated by the BOP remains
ongoing and acute. As of May 3, at least 2,441 prisoners have tested positive, along with 498 BOP
staff.80 Even that data understates the true scope of the spread, because COVID-19 testing remains
widely unavailable in federal prisons.81 At least one BOP facility responded to an outbreak by
announcing that it would simply stop testing any prisoners.82
74. Notably, the BOP’s own data shows that among closed cases, the fatality rates for
prisoners in its care may dwarf rates among any other populations. Of cases the BOP has marked
as closed as of May 3, 515 prisoners have recovered while 38 have died.83
75. Even in the midst of the virus’s rapid spread across the country, the BOP persists
in transferring detainees between prisons. In their recently filed OSHA complaint, BOP employees
79 Lachlan Markay, The Bureau of Prisons Just Bought a Ton of Hydroxychloroquine, Trump’s COVID-19 Miracle Drug, The Daily Beast (Apr. 7, 2020), https://www.thedailybeast.com/thebureau-of-prisons-just-bought-a-ton-of-hydroxychloroquine-trumps-covid-19-miracle-drug. 80 This figure combines reported numbers for current positives and recovered cases. Fed. Bureau of Prisons, COVID-19, https://www.bop.gov/coronavirus/ (last accessed May 4, 2020). 81 Michael Balsamo, Over 70% of tested inmates in federal prisons have COVID-19, AP (Apr. 29, 2020), https://apnews.com/fb43e3ebc447355a4f71e3563dbdca4f. (noting that only 2,700 federal prisoners out of a total federal prisoner population of over 170,000 have been tested; Samantha Michaels, Why Are We Transferring Potentially Sick Inmates Across the Country Without Testing Them First?, Mother Jones (Apr. 2, 2020), https://www.motherjones.com/crimejustice/2020/04/why-are-we-transferring-people-from-covid-stricken-prisons-without-testingthem-first/; Luke Barr, Federal Prisons Facing Shortages of Resources Amid Coronavirus Outbreak, ABC News (Apr. 1, 2020), https://abcnews.go.com/Health/federal-prisons-facingshortages-resources-amid-coronavirus-outbreak/story?id=69920966. 82 Greg LaRose, Oakdale Federal Prison Stops Testing Inmates with COVID-19 Symptoms, WDSU News (March 31, 2020), https://www.wdsu.com/article/oakdale-federal-prison-stopstesting-inmates-with-covid-19-symptoms/31989498#. 83 Fed. Bureau of Prisons, COVID-19, https://www.bop.gov/coronavirus/ (last accessed May 4, 2020).
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report that BOP “continuously mov[es] inmates by bus and/or airlift to various prison sites across the nation. They have authorized movement of infected inmates, inmates suspected of being infected, inmates who have been in close contact or proximity to infected inmates, to areas of the country that do not have any rate of infections, or to facilities that otherwise have not shown signs of any introduction of the virus, thus introducing the virus into an uninfected area.”84
IV. The Design of Fort Dix Makes Social Distancing Impossible. 76. The conditions at Fort Dix pose a grave public health risk for the spread of COVID19. This risk is substantially greater than the risk faced by the public—or even at many other federal prisons, given Fort Dix’s design. 77. Fort Dix is a low security facility with an adjacent minimum-security Camp. The main facility currently holds more than 2,700 people, and the Camp has, until recently, held approximately 230.85 Perversely, the design of Fort Dix means the fact that those confined at Fort Dix are designated by the BOP as the least dangerous prisoners face heightened risk from COVID19.86 78. Except for disciplinary and medical isolation, Fort Dix has no separate one-person housing cells.87
84 OSHA Complaint (Mar. 31, 2020), available at https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7-formnational-complaint.pdf. 85 Fed. Bureau of Prisons, FCI Fort Dix, https://www.bop.gov/locations/institutions/ftd/ (last accessed May 4, 2020). 86 BOP Program Statement P5100.08 (Sept. 12, 2006), available at https://www.bop.gov/policy/progstat/5100_008.pdf; Fed. Bureau of Prisons, “About Our Facilities,” https://www.bop.gov/about/facilities/federal_prisons.jsp (last visited Apr. 29, 2020). 87 PREA Audit: Auditor’s Summary Report (May 31, 2014), https://www.bop.gov/locations/institutions/ftd/FTD_prea2.pdf.
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79. Instead, people confined at Fort Dix are housed close together in group quarters. Those at the Camp are divided into two communal dorms, referred to as A-wing (or A-unit) and B-wing (or B-unit). Each wing has typically housed approximately 150 people in a grid of bunk beds two to three feet apart.88 People in the bunks are so close that they can reach out and touch the people in the bunks on both sides.89 At least in some areas, the bunks appear to be arranged three-deep: people sleep not only with bunks to their left and right, but also at their head and feet.90 Social distancing, as a matter of dorm design, is simply impossible.91
80. The main facility is divided into East and West Compounds, with approximately five buildings on each side that can house more than 300 people each. The buildings are three stories high and consist mostly of 12-person rooms, with a smaller number of two-person rooms. The 12-person rooms can be as small as 430 square feet. Within that space are squeezed six twoperson bunk beds, 12 lockers, and a card table. Prisoners maintain free movement within the building, sharing common TV rooms, computers, telephones, and bathrooms.92 Even for the few prisoners in two-person rooms, prisoners come into contact with hundreds of people in their building each day.
81. The bathrooms at Fort Dix are communal. In both the main facility and the Camp, each person shares a limited number of sinks, showers, and toilets with dozens of other prisoners
88 Scronic Decl. ¶ 4. 89 Id. 90 Id. 91 Id. 92 See Bogdan Decl. ¶ 7.
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within just feet of them. In the Camp, for example, a single bathroom with shared sinks and toilets is used by some 150 people.93
82. The fundamental structure of the low- and minimum-security Fort Dix facility makes it a COVID-19 deathtrap. It is not possible for people to engage in social distancing or selfquarantine precautions as recommended by the CDC. As correctional- health expert Dr. Goldenson explains, Fort Dix’s communal set-up makes the social distancing essential to preventing the spread of infection “impossible.”94
V. Fort Dix Is Failing to Take Proper Precautions, Placing People at an Unconstitutional Risk of Contracting COVID-19.
83. Fort Dix’s actions to protect prisoners from COVID-19 have been slow and inadequate. Although the BOP purported to impose a nationwide quarantine on April 1, Fort Dix failed to impose effective quarantine measures. The prison did not distribute masks to prisoners until early April, and not all prisoners received masks at that time. Correctional officers, who live all over the greater Philadelphia and central New Jersey area, continued to move in and out of Fort Dix each day without sufficient medical screening or protective equipment. They to move between the Camp and main facility compounds to this day, potentially spreading the virus between the various areas of the prison. And prisoners continued to move between wings of the Camp and within single buildings in the main facility. Indeed, as late as on May 1, a 67-year-old prisoner from another building was added to Petitioner Wragg’s room. He was not tested for COVID-19 before he was moved to a building in which he would come into daily contact with hundreds of people.
93 See Scronic Decl. ¶ 6. 94 Goldenson Decl. ¶ 36.
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84. Fort Dix’s failure to contain movement by prisoners and staff throughout otherwise separate areas of the facility ensured that, once infection arrived, it would not be confined to particular areas, but would spread to other areas, as in fact happened.
85. The conflicting announcements about masks by Respondent Ortiz and his staff are also telling. The BOP reported the first confirmed case at Fort Dix, a staff member, on its website on March 30. That same day, Respondent Ortiz sent a notice prohibiting prisoners from: “enter[ing] the kitchen on either the East or West compounds for meals with their faces concealed with makeshift masks due to COVID-19 concerns.” For a week following this, staff told prisoners they could not wear masks not issued by the prison and ordered them to remove such masks.
86. On April 7, the BOP reported Fort Dix’s first prisoner positive on its website. On April 9, it reported its second. That same day, a memorandum from the facility medical staff announced: “a second [C]amp offender has been determined to be positive for COVID-19 and a third Camper has been isolated for evaluation of symptoms and is awaiting COVID-19 test results. . . . [I]t is strongly recommended that you d[on] your surgical mask upon issue.”95
87. By April 11, the BOP was reporting four prisoner positives and Respondent Ortiz reversed course, issuing a notice to prisoners that read: “In order to maintain the health of staff and inmates, the following is expected from all inmates: wear your surgical masks! Since social distancing is not possible in this environment, masks will help keep you and others from spreading viruses.” 96
95 Scronic Decl. ¶ 10. 96 Id. at ¶ 11.
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88. By April 16, the BOP was reporting six prisoner positives and Respondent Ortiz’s notice directed prisoners it was mandatory to use “face coverings provided by staff.” 97 Of course, by then, it was too late—hundreds of prisoners and staff had surely already been exposed.
89. On April 8, Fort Dix converted the B-wing of the Camp into a makeshift quarantine for 63 people who believed they were being considered for potential release on home confinement pursuant to the CARES Act. Those 63 people were drawn from both A and B-wings. The remaining 160 or so prisoners in the Camp were packed into A-wing, with no efforts to test them nor any attempt to limit mingling groups of people who had previously not been exposed.98
90. After the April 8 conversion, A-wing and B-wing went at different times to get their food from the Camp cafeteria and use the common rooms, but prisoners did not observe the facilities being thoroughly cleaned between uses.99
91. Upon information and belief, during mid to late April, dozens of people exhibited symptoms of COVID-19 in both A-wing and B-wing, including coughing, feverish sweating, vomiting, and loss of consciousness. Many were removed from the Camp and brought to Building 5851 in the West compound. Prisoners who had previously been considered for release were not advised and did not know if this restarted the clock for their quarantine before release.
92. Upon information and belief, Fort Dix has still not changed the set-up within its main facility buildings. It continues to house the overwhelming majority of prisoners in 12-person rooms where prisoners cannot social distance. Fort Dix made no effort to stagger or isolate bathroom use, ensuring that people from one 12-person room would encounter others from the
97 Id. at ¶ 13. 98 Id. at ¶ 16. 99 Id. at ¶ 20.
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same building.100 Worse, it took no action to limit access to, or impose shift-based use of, common television rooms, computers, and phones in each building.101 As a result, large groups of prisoners congregate regularly in those rooms to this day.
93. In the main facility, although communal eating in the dining hall has ceased, prisoners go to and from the dining hall to pick up their food with all 200 to 300 people in their building.102 They crowd into the building’s entryway and adjoining hallway waiting to leave because they are only allowed five minutes to exit the building.103 Three times per day, hundreds of people congregate and move to and from meal pickup in this way.104 Back at their buildings, they can still eat in each other’s rooms or in the TV rooms, because there are no social distancing requirements.105
94. Upon information and belief, at various hours throughout the day in the Camp, Fort Dix makes prisoners line up shoulder-to-shoulder for counts, despite its obvious danger for spreading the infection. Staff now regularly take prisoners’ temperatures using an electronic thermometer that works by holding it close to someone’s forehead. In some cases, it may touch prisoners’ foreheads, but staff do not sanitize the device between uses. In the main facility, prisoners go to their room doors and have their temperatures taken approximately once every two days. They are not asked whether they are experiencing other symptoms of COVID-19 or whether they have recently been exposed to someone with the virus.
100 Id. at ¶ 8. 101 Id. 102 Id. at ¶ 9. 103 Id. 104 Id. 105 Id.
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95. Fort Dix has also failed to provide prisoners with adequate cleaning supplies. For weeks, Fort Dix maintained its practice of requiring prisoners to buy soap through commissary to wash their hands.106 Upon information and belief, Fort Dix did not reduce prices for soap, much less make it free. The prison exacerbated this problem by limiting commissary for people in the main facility and terminating it entirely for people at the Camp. Fort Dix took weeks to install soap dispensers in some bathrooms. Even where there were soap dispensers, many remained empty as of the end of March; in at least one building, notices were posted urging prisoners to donate their own meager soap supply to fill the dispensers.107 At present, many of the dispensers are empty because any soap provided by the prison runs out immediately.108
96. The scant soap that is provided to those in the main facility—two small bottles a month, barely bigger than what a person can carry on a plane—is what most prisoners must rely on to shower, wash their hands throughout the day, and try to disinfect surfaces in their shared living space if they cannot buy soap at the commissary.109
97. Beyond the limited provision of masks, prisoners have been given no other personal protective equipment or cleaning supplies. They have not been provided gloves or detergents or other sanitizing agents, and some rely on toilet paper and water to wipe down surfaces they touch.110
98. Upon information and belief, Fort Dix has also refused to exercise authority it has to release people at high risk from infection, which would protect both those individuals and others
106 Wragg Decl. ¶ 11; Scronic Decl. ¶ 6. 107 Wragg Decl. ¶ 11. 108 Id. 109 Id. 110 Id. at ¶ 17.
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who remained in a less-crowded facility. Prison staff have told several prisoners that they will not release anyone unless forced to, presumably by a Court. Some prisoners have been told their requests for home confinement are denied on bases not stated in the Attorney General memos, including that prisoners have not served 50 percent of their sentence.111
99. Upon information and belief, today—over seven weeks after the WHO declared a global pandemic, a month after Fort Dix’s first confirmed positive case, and 26 days after the Attorney General directed the BOP to immediately begin releasing people to home confinement from prisons with outbreaks—the number of prisoners that Fort Dix has used its power to release into home confinement remains zero.
VI. The COVID-19 Spread Continues Unabated at Fort Dix. 100. As a result of Fort Dix’s failures, COVID-19 has begun to spread through the facility like wildfire. On April 6, a 75-year old man was removed from the Camp after he had been sick and bedridden for four days. Prisoners believed he was later hospitalized.112 Over the next two weeks, some 15 people were removed from the Camp with symptoms.113 101. In mid-April, an older man was removed from B-wing with COVID-19 symptoms. He had been placed in B-wing because Fort Dix was considering him for release on home confinement.114 102. On April 20, a man in A-wing collapsed as a nurse walked by performing temperature checks. He spit up blood and green phlegm into his mask. As the man lay on the floor,
111 Scronic Decl. ¶ 28; Bogdan Decl. ¶ 12. 112 Scronic Decl. ¶ 15. 113 Id. at ¶ 16. 114 Id.
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an officer sprayed the man’s body and his pillow and bed with disinfectant while prisoners watched. Eventually, he was taken out in a wheelchair to the Camp’s medical office. He left the Camp with an IV in his arm.115
103. On April 21, at around 8:30 PM, a prisoner in A-wing who had been working in the Camp kitchen and had been visibly sick for almost a week told officers he needed medical attention. He was told to wait until after count. Count finished at 9:30 PM. He was not removed from the dorm until 11:00 PM.116
104. On April 22, the 62 remaining people in B-wing who had been told they were being considered for release were tested for COVID-19. 117 On April 24, prisoners learned from staff that 21 of them had tested positive. Many had underlying medical conditions that made them especially vulnerable.118
105. Later on April 24, those in B-wing were moved to the main facility. The prisoners who tested positive were sent to what is known as the laundry building, Building 5851. The prisoners who tested negative were housed in a Unicor warehouse.119 On April 25, the group in Awing was separated. Half went to B-wing and half remained in A-wing. They were not tested for COVID-19.120
106. On April 25, medics were seen going in and out of Building 5851 with at least 20 people on stretchers. On April 29, healthy prisoners went to pick up clean linen at Building 5851.
115 Id. at ¶ 18. 116 Id. at ¶ 19. 117 Id. at ¶ 22. 118 See id. 119 Id. at ¶ 23. 120 Id. at ¶ 25.
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Sick prisoners gathered at the upper floor windows. Some yelled and pounded at the windows, trying to get their attention.121
107. Upon information and belief, on April 30, prisoners in B-wing were tested and told to pack up their belongings because anyone who tested positive would be moved the following day. On May 1, 19 people were told they were positive and removed from the Camp. Until then, nine of the 19 had been working as kitchen workers.
108. Although on May 1 BOP reported 40 positive prisoner cases at Fort Dix,122 upon information and belief the true number of positives results is at least 55, and the true number of people infected but not yet tested is substantially higher.
109. BOP reported no current positive prisoners or staff as recently as April 3.123 On April 11, BOP still reported only six positives; just three weeks later, it reported 40. By its own account, even the BOP’s under-reported numbers show the rate of infection spread at Fort Dix has been exponential:
121 Wragg Decl. ¶ 20. 122 Fed. Bureau of Prisons, COVID-19, https://www.bop.gov/coronavirus/ (last accessed May 4, 2020). 123 The BOP announced its first staff positive at Fort Dix on March 30 but that figure was removed the following day.
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110. But even these alarming reported numbers likely dramatically understate the scale of the crisis. The BOP reports only current positives at each prison, omitting anyone it has transferred or whom it considers recovered, no matter how long they were in the prison spreading infection. The BOP’s public data regularly lags days behind what the prison has told people in custody. Most importantly, the BOP reports only lab-confirmed positive tests: not prisoners with symptoms, and not even prisoners who have been diagnosed by a physician with COVID-19 but have not been tested. Yet only a small minority of prisoners at Fort Dix have been tested, even
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those with symptoms. The BOP has not revealed the number of people in custody it has tested at Fort Dix, but from numerous prisoner reports it is almost certainly fewer than 10%. This is consistent with testing data BOP has been forced to divulge about its other prisons.124 Fort Dix has not been testing people in its custody on a regular basis or in substantial quantities, ensuring that it does know the full scope of the problem.
111. People who contract COVID-19 can deteriorate rapidly, even before a test result can be received. Incarcerated individuals who do contract COVID-19 are at higher risk for developing acute symptoms than if they were in the community, because Fort Dix lacks the medical resources to care for symptomatic individuals.
112. Upon information and belief, Fort Dix is housing all prisoners who have tested positive on the upper two floors of Building 5851. Upon information and belief, a nurse and a doctor make two rounds per day, and there is no constant medical supervision. There are no ventilators or respirators, dialysis machines, or other hospital machinery or infrastructure. Prisoners are provided Tylenol.
124 See, e.g., Eric Heisig, Ohio Sen. Rob Portman Decries ‘Unacceptable’ Lack of Coronavirus Testing at Elkton Federal Prison, Cleveland.com (Apr. 28, 2020), https://www.cleveland.com/open/2020/04/ohio-sen-rob-portman-decries-unacceptable-lack-ofcoronavirus-testing-at-elkton-federal-prison.html; Jane Wester, Just 2 Coronavirus Tests Performed in 12 Days at New York City’s Federal Lockups, Report Shows, New York Law Journal (Apr. 21, 2020), https://www.law.com/newyorklawjournal/2020/04/21/just-2coronavirus-tests-performed-in-12-days-at-new-york-citys-federal-lockups-report-shows/; Nicholas Chrastil, Louisiana Federal Prison No Longer Testing Symptomatic Inmates For Coronavirus Due to ‘Sustained Transmission’, The Lens (Mar. 31, 2020), https://thelensnola.org/2020/03/31/louisiana-federal-prison-no-longer-testing-symptomaticinmates-for-coronavirus-due-to-sustained-transmission/;Michael Balsamo, Over 70% of tested inmates in federal prisons have COVID-19, AP (Apr. 29, 2020) (only 2,700 prisoners tested by BOP nationwide), https://apnews.com/fb43e3ebc447355a4f71e3563dbdca4f.
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113. With the reported number of COVID-19 positives escalating rapidly, it is just a matter of time before the infection claims its first fatality at Fort Dix. As correctional health expert Dr. Goldenson warns about Fort Dix: “The infection rate will increase substantially before it starts to diminish without major interventions. The number at risk for death is substantial.”125
VII. Petitioners Are Particularly Vulnerable. 114. Petitioner Troy Wragg is classified as a BOP “chronic care inmate.” In November 2014, he was diagnosed with epilepsy and suffers from grand grand-mal seizures that can be so violent and debilitating that he has broken bones during them.126 Between April 8 and 23, he had 12 seizures at Fort Dix. 127 He had a thirteenth in the early morning of April 26 and awoke to find his bunkmate holding his head to prevent concussion.128 Certain symptoms of COVID-19, especially fever, as well as a weakened body from illness, risk triggering more seizures. Petitioner Wragg is also vulnerable to COVID-19 because of hypertension and a heart condition, for which he takes three daily medications.129 He had a heart attack in 2012.130 Finally, he is vulnerable as a person with Myasthenia Gravis, a chronic autoimmune neuromuscular disease.131 115. Petitioner Michael Scronic has a history of skin cancer, childhood asthma and steroidal medication use, and abnormal heart symptoms.132 He had a tumor removed from his chest in 1991 and was instructed to return to a pathologist periodically, and in 2018, had Mohs
125 Goldenson Decl. ¶ 36. 126 Wragg Decl. ¶ 3. 127 Id. at ¶ 4. 128 Id. 129 Id. at ¶ 6. 130 Id. 131 Id. at ¶ 7. 132 Scronic Decl. ¶ 2.
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Micrographic surgery to remove another tumor on his chest. Pathologists reported a skin cancer diagnosis.133 According to his family, throughout childhood, he had recurring serious asthma attacks, had to have the house sterilized, slept with a vaporizing tent over his bed, and for years used steroidal inhalers.134 Finally, his medical records from his last physical before his incarceration show a heart murmur, heart palpitations, elevated blood pressure, and shortness of breath. All these conditions make Petitioner Scronic vulnerable to COVID-19.135
116. Petitioner Leonard Bogdan, at 68 years old, is vulnerable to COVID-19 from his age alone. Additionally, he has serious medical conditions that classify him as a BOP “chronic care inmate.”136 Since his incarceration at Fort Dix, he developed a nodule on his thyroid, diagnosed as potentially cancerous, which causes a rapid heart rate for which he takes twice daily medications.137 He has a heart diseases called “bifascicular bundle branch block,” which impacts the valves of his heart, as well as hypertension, high cholesterol, and “actinic keratosis” skin cancer.138 Finally, he has extensive physical disability due to a severe case of scoliosis, which causes contortion of his ribcage and impacts his organs. As a result, he has chronic shortness of breath and displacement of the kidneys.139 For a combination of these conditions, at least four times per year he receives treatment at various regional hospitals, including St. Francis Medical
133 Id. 134 Id. 135 Id. 136 Bogdan Decl. ¶ 2. 137 Id. 138 Id. 139 Id.
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Center, Robert Wood Johnson University Hospital, and Deborah Lung and Heart Center, and other specialty offices.140 These conditions make him even more vulnerable to COVID-19.
117. Petitioner Eliezer Soto-Concepcion takes daily medications for a heart condition and high blood pressure.141 He also has a nervous system condition that causes his hands to shake and has been told he has clogged arteries.142 Over the last 13 years, he has been hospitalized three times following heart attacks.143 As a result of these conditions, he is especially vulnerable to COVID-19.
LEGAL GROUNDS FOR PETITION I. Section 2241 is an Appropriate Vehicle to Address Unconstitutional
Conditions of Confinement Affecting the Fact or Duration of Custody. 118. Section 2241(c)(3) authorizes courts to grant habeas corpus relief when a person is “in custody in violation of the . . . laws or treaties of the United States.” The Third Circuit has long allowed § 2241 to challenges regarding “‘conditions’ of [] confinement.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (granting habeas petition alleging that the BOP must consider in good faith whether the petitioner could complete the last six months of his sentence in a Community Corrections Center rather a Federal Correctional Institution). Courts have allowed challenges solely on the basis of detention conditions that pose a threat to petitioners’ medical well-being. See e.g., Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (approving the use of Section 2241 to challenge a prisoner’s transfer where that transfer created a risk of fatal
140 Id. at ¶ 3. 141 Soto-Concepcion Decl. ¶ 2. 142 Id. 143 Id.
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heart failure). Given the plain language of § 2241, courts are authorized to grant relief to convicted prisoners.
119. In this case, the unconstitutional threat to Petitioners’ health and life posed by being held in Respondents’ custody is ongoing, not simply imminent. Every hour that Petitioners are held in Fort Dix, they are at a significantly elevated risk of contracting coronavirus, and because of their medical conditions, their risk of dying from coronavirus is significant.
II. Respondent’s Failure to Take Steps to Mitigate Transmission of COVID-19 Constitutes Deliberate Indifference to the Serious Medical Needs of Plaintiffs.
120. Respondents are violating Petitioners’ Eighth Amendment rights by continuing to incarcerate them in conditions where it is impossible to prevent transmission of an infectious disease and to protect themselves against serious illness that may prove deadly because of Petitioners’ vulnerable conditions.
121. All individuals held at Fort Dix have been convicted and assigned by the BOP to serve time at Fort Dix. Therefore, the treatment of all individuals incarcerated at Fort Dix, including the treatment of Petitioners, is governed by the Eighth Amendment. As such, they are entitled to be protected from conditions of confinement that create a serious risk to health or safety, including through release from custody when necessary. Brown v. Plata, 563 U.S. 493, 531–32 (2011) (upholding lower court’s order releasing people from state prison even though release was based on prospect of future harm caused by prison overcrowding); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”). The threat of exposure to a deadly infectious disease such as COVID-19 constitutes a serious risk to health, particularly for the Petitioners because of their unique vulnerability to COVID-19. Helling v. McKinney, 509 U.S. 25, 34 (1993)
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(noting with approval Eighth Amendment claims based on exposure to serious contagious diseases).
122. Under Fort Dix’s current conditions, Respondents have not and cannot protect Petitioners and the class from this risk of serious harm. In these circumstances, enlargement of custody and, if necessary, release, is required to protect Petitioners and other prisoners with highrisk health conditions from unconstitutional custody.
123. Government officials act with deliberate indifference when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33. This Court need not “await a tragic event” to find that Respondents are maintaining unconstitutional conditions of confinement. Id. This is so not only because a tragedy is ongoing, but because even petitioners and class members who have not yet tested positive have a constitutional right to be free from conditions of confinement “pose an unreasonable risk of serious damage to [Petitioners’] future health.” Id. at 35.
124. The reach of the Eighth Amendment includes “exposure of inmates to a serious, communicable disease.” Helling, 509 U.S. at 33; see also Karolis v. N.J. Dep’t of Corr., 935 F. Supp. 523, 527 (D.N.J. 1996) (“[P]rison officials have an affirmative duty to protect inmates from infectious disease.”) (citations omitted). The Third Circuit Court of Appeals has allowed prisoners to maintain a cause of action for mental anguish suffered as a result of exposure to tuberculosis, even when the risk had subsided. Plummer v. United States, 580 F.2d 72, 76 (3d Cir. 1978).
125. In this case, as established by the facts above, Petitioners face a significant risk of exposure to COVID-19, with the attendant risk of death that follows given their vulnerable conditions. Respondents are well aware of this risk, having been alerted to it by the CDC, the
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Attorney General, BOP guidance, widespread news reporting, and the ongoing outbreak at various BOP facilities including Fort Dix itself. Indeed, the Second Circuit Court of Appeals, unprompted, acknowledged over a month ago the “grave and enduring” risk posed by COVID-19 in the correctional context. Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, No. 19-1778, __ F.3d __, 2020 WL 1320886, at *12 (2d Cir. Mar. 20, 2020); see also Jovel v. Decker, No. 20 Civ. 308, 2020 WL 1467397, at *1 (S.D.N.Y. Mar. 26, 2020) (finding “extraordinary circumstances” of COVID-19 pandemic justified release of immigration detainee from federal detention).
126. Finally, as established above, Respondents have not taken steps sufficient to protect Petitioners from the grave risks that are present every moment they are incarcerated at Fort Dix. Respondent Ortiz has recklessly failed to follow or implement CDC guidance or directives from Attorney General Barr or the BOP. Respondents are not capable of managing the risk to Petitioners in the facility’s current environment. Respondents are holding Petitioners in violation of their Eighth Amendment rights by detaining them in the face of significant threats to their health and safety without taking sufficient steps to prevent or address that harm.
III. The Number of People Currently in the Facility Ensures that Respondents Cannot Implement Recommended Measures Required to Protect Petitioners’ Health, and Violates the Eighth Amendment.
127. Respondents are violating Petitioners’ Eighth Amendment rights by continuing to incarcerate them in conditions where it is impossible to prevent transmission of an infectious disease and to protect themselves against serious illness that may prove deadly because of Petitioners’ vulnerable conditions.
128. As alleged above, the BOP has thus far failed to implement effective social distancing across its facilities, including particularly at Fort Dix, with disastrous effects. Part of this failure reflects the nature of correctional confinement; however, a large part here owes to the
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particular circumstances of Fort Dix’s design, capacity, and deliberate choices about policies by Respondents.
129. While a facility like Fort Dix might not be overcrowded under normal circumstances, emergency situations like this one have rendered an otherwise constitutionallyacceptably-populated facility overcrowded relative to its maximum safe capacity. The current Fort Dix population of approximately 3,000 prisoners might not present a constitutional problem in ordinary circumstances, but that population in the context of the ongoing pandemic ensures that effective social distancing is impossible, and it stymies Respondents’ ability to follow and implement the CDC Interim Guidance and other viral-transmission prevention measures.
130. Courts have long found that facilities’ populations may exacerbate existing harms entirely unrelated to the fact of crowding itself, including cases where populations may inhibit a facility’s ability to mitigate incarcerated individuals’ risk of contracting dangerous diseases. The Supreme Court itself has recognized that correctional defendants can violate the Eighth Amendment when they crowd prisoners into shared spaces with others who have “infectious maladies.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Hutto v. Finney, 437 U.S. 678, 682–85 (1978) (recognizing the need for a remedy where prisoners were crowded into cells and some had infectious diseases).
131. Subsequent decisions have recognized that such crowding can happen across facilities. See Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) (medical services strained by overcrowding could amount to a constitutional violation).
132. Such decisions make particular sense in light of substantial corroborating evidence that transmission becomes more likely in light of, among other factors, relative crowding of people together. See, e.g., Joseph A. Bick, Infection Control in Jails and Prisons, 45 Clinical Infectious
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Diseases 1047, 1047 (Oct. 2007) (“The probability of transmission of potentially pathogenic organisms is increased [in jails and prisons] by crowding, delays in medical evaluation and treatment, rationed access to soap, water, and clean laundry, [and] insufficient infection-control expertise.”), available at https://bit.ly/2QZA494.
133. In this case, Petitioners face an elevated risk of serious illness both because of particular failures on the part of Respondents as alleged above, and because of the number of people in the facility. The current population of Fort Dix, both of incarcerated individuals and the staff who come through on a daily basis and work in the same confined space, ensures that any effective measures that would mitigate Petitioners’ exposure to and risk of serious illness from COVID-19 are impossible to implement.
CLASS ACTION ALLEGATIONS 134. Petitioners bring this representative habeas action pursuant to 28 U.S.C. § 2241 and as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure on their own behalf and on behalf of all persons similarly situated. 135. Petitioners seek to represent a class consisting of all current and future people in post-conviction custody at Fort Dix who are over the age of 50 or who experience medical conditions that make them uniquely vulnerable to COVID-19, including (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease, or other chronic conditions associated with impaired heart function; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) neurological and neurologic and neurodevelopment conditions, including disorders of the brain, spinal cord, peripheral nerve, and
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muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; (l) a current or recent (last two weeks) pregnancy; or (m) severe obesity. (the “Class”).144
136. Petitioners also seek to represent a subclass consisting of all current and future people in post-conviction custody at Fort Dix who have qualifying disabilities within the meaning of the Rehabilitation Act (“the Subclass”).
137. The members of the Class are too numerous to be joined in one action, and their joinder is impracticable.
138. Several common questions of law and fact apply to all Class 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 have taken and is taking in response to the COVID-19 crisis; (3) whether Respondents have implemented and are implementing an adequate emergency plan during the COVID-19 crisis; (4) whether Respondents’ practices during the COVID-19 crisis have exposed and are exposing prisoners at Fort Dix to a substantial risk of serious harm; (5) whether the Respondents have known of and disregarded a substantial risk of serious harm to the safety and
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health of the Class; and (6) what relief should be awarded to redress the harms suffered by members of the Class as a result of the conditions.
139. As to the Subclass in particular, there is also common questions as to whether (7) Respondents have adequately accommodated the disabilities that make Subclass members more likely to contract COVID-19 and suffer greater harm if they do; and (8) what relief should be awarded to redress the harms suffered by members of the Subclass as a result of Rehabilitation Act violations.
140. Absent class certification, individuals incarcerated at Fort Dix during the COVID19 pandemic would face a series of barriers in accessing the relief sought. Fort Dix has suspended visitation and individuals incarcerated there have limited access to communication with the outside world, impeding their ability to obtain legal representation and pursue litigation. Because the Class and Subclass are all sentenced prisoners, they do not have defense attorneys already working with them on their criminal proceedings. And a large portion of the Class and Subclass has limited educational backgrounds and financial means.
141. Respondents’ practices and the claims alleged in this Petition are common to all members of the Class and members of the Subclass.
142. The claims of Petitioners are typical of those of the Class and the Subclass. Petitioners, like all other at Fort Dix, are currently being held in unconstitutional custody at Fort Dix. Petitioners, like other members of the Subclass, have qualifying disabilities that entitle them to accommodations that they are not receiving in violation of the Rehabilitation Act.
143. The legal theories on which Petitioners rely are the same or similar to those on which all Class and Subclass members would rely, and the harms suffered by them are typical of those suffered by all the other Class and Subclass members.
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144. Petitioners will fairly and adequately protect the interests of the Class and the Subclass. The interests of the Class and Subclass 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 and in criminal law.
145. Counsel for Petitioners know of no conflicts of interest among Class or Subclass members or between the attorneys and Class or Subclass members that would affect this litigation.
FIRST CAUSE OF ACTION (Eighth Amendment)
Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution 28 U.S.C. § 2241 Class versus All Defendants
146. Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
147. Petitioners bring this claim on their own behalf and on behalf of the Class. 148. The Eighth Amendment guarantees sentenced prisoners custody free of “a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Helling, 509 U.S. at 33; see also U.S. Const. Amend VIII. The government’s failure to protect the prisoners in its custody from a widespread outbreak of a serious contagious disease that causes potentially permanent damage or death constitutes deliberate indifference in violation of the Eighth Amendment to the United States Constitution. 149. Petitioners and the Class are uniquely vulnerable to serious complications or death from contracting COVID-19 because of their age and/or because they suffer from medical conditions that render them uniquely vulnerable.
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150. Because of the conditions at Fort Dix, Petitioners cannot take steps to protect themselves—such as social distancing, hand-washing hygiene, or self-quarantining—and the government has not provided adequate protections. As COVID-19 rapidly spreads inside Fort Dix, the already deplorable conditions at the prison will continue to deteriorate, and incarcerated individuals there will continue to contract COVID-19 at staggering rates.
151. Respondent’s failure to adequately protect Petitioners from these unconstitutional conditions, or release them from the conditions altogether, constitutes deliberate indifference to a substantial risk of serious harm to Petitioners, and all members of the Class, thereby establishing a violation of the Eighth Amendment to the United States Constitution.
152. Respondents were aware or should have been aware of these conditions, which were and are open and obvious throughout the entire prison.
153. Respondents knew of and disregarded an excessive risk to health and safety. 154. Respondents failed to act with reasonable care to mitigate these risks, subjecting Petitioners to a grave and serious risk of harm of serious illness, permanent injury, or death. 155. Because Respondents failed to act to remedy Petitioners’ and the Class’s degrading and inhumane conditions of confinement in violation of their Eighth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus Petition and Class Action Complaint. 156. 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.
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SECOND CAUSE OF ACTION (Rehabilitation Act)
Unconstitutional Conditions of Confinement in Violation of Rehabilitation Act 28 U.S.C. § 1331
Subclass versus All Defendants 157. The Rehabilitation Act requires entities that receive federal funding, such as the BOP and Fort Dix, not to discriminate against Americans with qualifying disabilities. 158. Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794, requires entities such as Fort Dix to reasonably accommodate people with disabilities in all programs and services for which people with disabilities are otherwise qualified. 159. Petitioners, and other members of the Subclass, qualify as individuals with disabilities under the meaning of the RA. 160. Access to safe conditions of confinement and adequate preventative and responsive medical treatment are programs or services that Fort Dix must provide—but is not presently providing—to people in its custody to comply with the RA. 161. Respondents intentionally discriminate against people with disabilities by denying them reasonable accommodations, including but not limited to those set out in the CDC guidance, that are necessary to protect them from COVID-19. 162. In a facility with reduced population that might allow adequate social distancing, reasonable accommodations for people with qualifying disabilities include but are not limited to: separate living spaces rather than high-capacity shared rooms and dorms with people in close proximity; free distribution of adequate cleaning supplies, including soap; free distribution of adequate personal protective equipment, including masks and gloves; staggered access to bathrooms, meals, and other shared resources; assignments of correctional staff that mitigates the
54

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possibility staff will transmit COVID-19, even asymptomatically, from one building to another; and adequate access to tests and information about risk.
163. Failing to provide these reasonable accommodations violates the Rehabilitation Act, which entitles Petitioners and members of the disability subclass to injunctive and declaratory relief.
RELIEF REQUESTED WHEREFORE, Petitioners, the Class, and the Subclass respectfully request that the Court enter a class-wide judgment: A. Declaring Fort Dix’s custody of Petitioners and the Class violates the Eighth Amendment right against cruel and unusual punishment, and the Rehabilitation Act with respect to Petitioners and the Subclass; B. Ordering temporary enlargement of custody (or bail pending habeas corpus) with appropriate precautionary public health and safety measures for all Class Members— including the Petitioners, the Class, and the Subclass, during the pendency of this petition for a writ of habeas corpus; C. Ordering respondents to comply with the Constitution for any members of the Class who do not receive temporary enlargement and remain at Fort Dix during the pendency of the petition, and with the Rehabilitation Act for any members of the Subclass who remain; D. If temporary enlargement does not bring the conditions at Fort Dix into compliance with the Eighth Amendment and the Rehabilitation Act, issuing writs of habeas corpus; E. Certifying this petition as a class action, for the reasons stated herein;
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F. Awarding Plaintiffs’ attorneys’ fees and costs, as provided by statute and law; and
G. Ordering such other and further relief as this Court deems just, proper and equitable.
Respectfully submitted,
/s/ Tess Borden___________ Tess Borden (260892018) Jeanne LoCicero AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION 570 Broad Street, 11th floor P.O. Box 32159 Newark, NJ 07102 973-854-1733 tborden@aclu-nj.org
Jim Davy* 2362 E. Harold Street Philadelphia, PA 19125 609-273-5008 jimdavy@gmail.com
Matthew Stiegler* Law Office of Matthew Stiegler 7145 Germantown Avenue, Suite 2 Philadelphia, PA 19119 (215) 242-1450 Matthew@StieglerLaw.com
Counsel for Petitioners and Proposed Class Members
*Petition for permission to file pro hac vice forthcoming
Dated: May 4, 2020
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Declaration of Joe Goldenson, MD
1. I am a medical physician with 33 years of experience in correctional health care. For 28 years, I worked for Jail Health Services of the San Francisco Department of Public Health. For 22 of those years, I served as the Director and Medical Director. In that role, I provided direct clinical services, managed public health activities in the San Francisco County jail, including the management of HIV, tuberculosis, Hepatitis C, and other infectious diseases in the facility and the planning and coordination of the jail’s response to H1N1, and administered the correctional health enterprise, including its budget, human resources services, and medical, mental health, dental, and pharmacy services.
2. I served as a member of the Board of Directors of the National Commission on Correctional Health Care for eight years and am past President of the California chapter of the American Correctional Health Services Association. In 2014, I received the Armond Start Award of Excellence from the Society of Correctional Physicians, which recognizes its recipient as a representative of the highest ideals in correctional medicine.
3. For 35 years, I held an academic appointment as an Assistant Clinical Professor at the University of California, San Francisco.
4. I have worked extensively as a correctional health medical expert and court monitor. I have served as a medical expert for the United States District Court for the Northern District of California for 25 years. I am currently retained by that Court as a medical expert in Plata v. Newsom, Case No. 3:01-cv-01351 (N.D. Cal.), to evaluate medical care provided to inmate patients in the California Department of Correctional Rehabilitation. I have also served as a medical expert and monitor at Cook County Jail in Chicago; Los Angeles County Jail; at other jails in Washington state, Texas, and Florida; and at prisons in Illinois, Ohio, and Wisconsin.
5. My curriculum vitae is attached as exhibit A.
The nature of COVID-19
6. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease, is a global pandemic and has been termed a global health emergency by the World Health Organization (“WHO”). Cases first began appearing between December 1 and December 31, 2019, in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City.
7. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus that caused the 2002–2003 SARS epidemic.

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8. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.1 to 3.5%, which is up to 35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are selflimited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support.
9. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardiovascular disease, respiratory disease, diabetes, and immune compromise.
10. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS), which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China.
11. COVID-19 is widespread. Since it first appeared in China in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents; heavily affected countries include Italy, Spain, Iran, South Korea, and the U.S. The U.S. is now the world’s most affected country. As of April 29, 2020, there have been 3,142,942 confirmed human cases globally and 218,564 known deaths.1 It is not contained, and cases are growing exponentially.
12. In the United States alone, the Centers for Disease Control and Prevention (“CDC”) reports 981,246 cases and 55,258 deaths as of April 28.2 The New Jersey Department of Health reports 113,856 cases and 6,442 dead as of April 28.3 All these numbers are likely underestimates because of limited availability of testing.
13. SARS-nCoV-2 is now known to be fully adapted to human-to-human spread. This is almost certainly a new human infection, which also means that there is no pre-existing or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
14. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again is
1 https://coronavirus.jhu.edu/map.html (last accessed April 29, 2020) 2 https://www.cdc.gov/covid-data-tracker/index.html ((last accessed April 29, 2020) 3 https://covid19.nj.gov/#live-updates ((last accessed April 29, 2020)

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likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20–30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2–14 days, which is why isolation is generally limited to 14 days.
15. CDC has recently added to the list of possible signs and symptoms of COVID-19 to include fever, cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, or new loss of taste or smell.4 This means the questionnaires currently used to screen staff and prisoners need to be updated and the numbers of suspect cases will increase.
16. There is currently no vaccine for COVID-19, and no cure. The only known ways to prevent the spread of SARS-nCoV-2 involve measures such as thorough handwashing, frequent decontamination of surfaces, and maintaining six feet of physical distance between individuals (“social distancing”).
The risks of COVID-19 in detention facilities
17. COVID-19 poses a serious risk to prisoners, workers, and anyone else in detention facilities. Detention facilities, including prisons like Fort Dix, have long been associated with high transmission probabilities for infectious diseases, including tuberculosis, multidrug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis.
18. The severe epidemic of tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities surrounding a prison.
19. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as social distancing and proper decontamination of surfaces are virtually impossible.
20. For example, several deaths were reported in the U.S. in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May 2019.
21. Current recommendations for social distancing, frequent hand washing, and frequent cleansing of surfaces to prevent infection and the spread of the virus are extremely difficult, if not impossible, to implement in the correctional setting. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical
4 Centers for Disease Control and Prevention, Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019ncov/symptoms-testing/symptoms.html

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complications of these infectious diseases. These include physical/mechanical risks such as overcrowding; population density in close confinement; insufficient ventilation; shared toilet, shower, and eating environments; and limits on hygiene and personal protective equipment such as masks and gloves in some facilities. Shared spaces and equipment (such as telephones) are commonly not adequately disinfected, especially during the current pandemic when more frequent cleaning and disinfecting are required. Limits on soap (copays are common) and hand sanitizer, since they can contain alcohol, are also risks for spread. The nationwide shortage of personal protective equipment (PPE), as well as ancillary products (such as cleaning supplies and thermometer probes) further impacts the ability of correctional facilities to implement necessary precautions.5
22. The risk of exposure to and transmission of infectious diseases, as well as the risk of harm from developing severe complications or death if infected, is significantly higher in jails, prisons, and detention centers than in the community.
23. Close, poorly ventilated living quarters and often overcrowded conditions in these facilities foster the rapid transmission of infectious diseases, particularly those transmitted by airborne droplets through sneezing, speaking, or coughing. In these congregate settings, large numbers of people are closely confined and forced to share living spaces, bathrooms, eating areas, and other enclosed spaces. Groups of persons are often moved from space to space, for example, from a dormitory to a cafeteria. Persons congregate and come in close contact while standing in lines for medication, commissary, fresh laundry, telephones, or court appearances. These group movements, which may cluster large numbers of people together in small spaces, increase the risk of transmission. It is common for detainees in a given housing unit to routinely be subjected to such group movements multiple times each day. They are physically unable to practice social distancing, which the CDC has identified as the “cornerstone of reducing transmission of respiratory diseases such as COVID-19.”6
24. This forced congregation spreads infection from one area of a prison to other areas, too. In addition, detention facilities often rely on detainees to perform work that supports the operation of the facility, such as food service, laundry, and cleaning. To perform these work assignments, they typically travel from their housing units to other parts of the facility. Officers and other detention facility staff routinely have direct physical contact with detainees, especially when handcuffing or removing handcuffs from detainees who are entering or exiting the facility Staff members also move around within the facility, which creates opportunities for transmission both among staff in different parts of the
5 Study of COVID-19 in Correctional Facilities, Harvard University and National Commission on Correctional Health Care, April 9, 2020 6 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html

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facility and transmission to and from detainees in different parts of the facility. This regular circulation makes the spread of infection throughout a prison all but inevitable.
25. While jails, prisons, and detention centers are often thought of as closed environments, this is not the case. Custody, medical, and other support staff and contractors enter and leave the facility throughout the day. New detainees arrive on a frequent basis. Since there is no effective way to screen for newly infected or asymptomatic individuals, they can unknowingly transmit COVID-19 to those housed in the facility. Detainees and inmates are often transferred between housing units, to other facilities, and to and from court. This further increases the likelihood of transmission of COVID-19.
26. It has long been known that jails, prisons, and detention centers can be hotbeds of disease transmission. Due to the frequent ingress and egress of employees at these facilities, an outbreak within a jail, prison, or detention center can quickly spread to surrounding communities. For example, the tuberculosis epidemic that broke out in New York City in the early 1990s began in jails and was spread to the community by jail employees who became infected and then returned home to their families and communities.
27. In addition to the nature of the prison environment, prison and jail populations are also at additional risk due to high rates of chronic health conditions, substance use, mental health issues, and, particularly in prisons, aging and chronically ill populations who may be vulnerable to death or severe illnesses after infection from COVID-19 disease.
28. Testing kits are widely unavailable, and it can take anywhere from a day to a week or more to obtain test results. Someone who is tested shortly after he or she was infected may test negative. Non-test-based screens like taking people’s temperatures or asking them for subjective reports of symptoms—cannot adequately screen for new, asymptomatic or pre-symptomatic infections. COVID-19 has a typical incubation period of 2 to 14 days, commonly five days, and transmission often occurs before presentation of symptoms. According to the CDC, up to 25 percent of people infected with COVID-19 will remain asymptomatic.7 Similarly, infected individuals may experience only mild symptoms. These newly infected, asymptomatic, and mildly symptomatic individuals can, and do, transmit the virus, contributing to its rapid spread. As a result, such inadequate screening presents a critical problem. The possibility of asymptomatic transmission means that monitoring staff and incarcerated people for symptoms and fever is inadequate to identify all who may be infected and to prevent transmission.
29. While every effort should be made to reduce exposure in detention facilities through internal mitigation efforts, this may be extremely difficult to achieve and sustain quickly
7 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html

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enough. Further, no mitigation effort can change the inherent nature of detention facilities, which force people to live in close proximity to one another. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible. Indeed, that is the only public health solution available at this time to reduce the spread of COVID-19 and potentially save lives.
30. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are highly likely. Releasing as many inmates as possible is important to protect the health of inmates, correctional facility staff, health care workers at jails and other detention facilities, and the community as a whole. Indeed, according to the WHO, “enhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”8
31. For these reasons, the pandemic has prompted prisoner releases around the world. France has freed 5,000 inmates9, and, in the United States, California officials are planning to release up to thousands of prisoners.10 In Britain, the Ministry of Justice is planning to grant thousands of prisoners early release within weeks in an effort to contain the spread of the virus in cells and facilities where it said social distancing rules are impossible to maintain.11 Many cities and counties across the US, including San Francisco, Los Angeles, Chicago, Cleveland and New York, are also releasing prisoners to reduce the risk of COVID-19.12
32. It is difficult to overstate the devastation that a COVID-19 outbreak could inflict on a correctional facility such as FCI Fort Dix. At Rikers Island jail in New York, between April 1 and April 15, 2020, the number of COVID-19 positive incarcerated individuals and staff members grew by 104 and 114 people, respectively, upping the jail’s total numbers of confirmed cases to 288 among the incarcerated population, 488 among
8 World Health Organization, Regional Office for Europe, Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance (Mar. 15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-of-COVID-19in-prisons.pdf. 9 Coronavirus: Low-risk prisoners set for early release, BBC News (Apr. 4, 2020), https:// www.bbc.com/news/uk-52165919. 10 Paige St. John, California to release 3,500 inmates early as coronavirus spreads inside prisons, L.A. Times (Mar. 31, 2020), https://www.latimes.com/california/story/2020-03-31/coronaviruscaliforniarelease-3500-inmates-prisons. 11 Britain plans to free many inmates early as it reports a on-day death toll, New York Times, 4/3/20. 12 Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirusprisonsjails.html.

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correction staff, and 78 among health care workers.13,14 The first known case of COVID19 at Rikers was confirmed on March 18,15 illustrating just how quickly this disease can and will overwhelm detention facilities. Two Ohio prisons, Marion Correctional Institution and Pickaway Correctional Institution, have emerged as the largest-known sources of U.S. coronavirus infections, according to data compiled by The New York Times. To date 3,808 cases have been connected to the two prisons.16 Over 80% of the approximately 2,500 prisoners in Marion tested positive.17 In addition, 169 staff have tested positive for COVID-19.18 Eight of the ten largest-known infections sources in the U.S. are jails or prisons.
33. At Ohio’s Marion Correctional, close to 95% of those who tested positive were asymptomatic and would otherwise not have been tested.19 This underscores the risk of the spread of COVID-19 by asymptomatic individuals.
34. According to the Bureau of Prisons, 27 detainees and 3 staff members at FCI Fort Dix currently have tested positive for COVID-19. Dozens more have symptoms. Even these dozens may represent the tip of the iceberg, since newly-infected people typically do not show symptoms for 2–14 days, many infected individual are asymptomatic, and since the infection spreads rapidly to additional people. While no detainees are reported to have died from COVID-19 in FCI Fort Dix yet, the death toll is likely to mount rapidly given the way the disease has progressed elsewhere.
35. It is my understanding that FCI Fort Dix has two open bay / dormitory housing units; at least seven housing units with 2-, 10-, and 12-man dormitory-style rooms; and a segregation unit. It also my understanding that FCI Fort Dix has roughly 2,900 detainees in the facility on any given day; that staff enter and leave the facility regularly; and that detainees share restroom and shower facilities and eat communally prepared food.
36. Based on these understandings, it is my opinion that the exponential infection of rate for COVID-19 we already see in the community would be magnified within FCI Fort Dix.
13 Julia Craven, Coronavirus Cases Are Spreading Rapidly on Rikers Island, Slate (Apr. 2, 2020), https://slate.com/news-and-politics/2020/04/rikers-coronavirus-cases-increase.html. 14 Jan Ranson, Jailed on a Minor Parole Violation, He Caught the Virus and Died, N.Y. Times (Apr. 10, 2020) 15 As Testing Expands, Confirmed Cases of Coronavirus in N.Y.C. Near 2,000 (Mar. 18, 2020), N.Y. Times, https://www.nytimes.com/2020/03/18/nyregion/coronavirus-new-york-update.html. 16 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html?action=click&module=Top%20Stories&pgtype=Homepage&action=click&module=Spotlight&pgtype= Homepage#states (last accessed April 29, 2020). 17 Ohio Department of Rehabilitation & Correction, COVID-19 Inmate Testing Updated 4/28/2020, https://coronavirus.ohio.gov/static/DRCCOVID-19Information.pdf. 18 Id. 19 https://www.nytimes.com/reuters/2020/04/25/us/25reuters-health-coronavirus-prisons-testinginsight.html?searchResultPosition=8

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Adequate social distancing would be impossible to achieve. What’s more, the infection in FCI Fort Dix would not stay limited to the facility, but would worsen infection rates in the broader community. The infection rate will increase substantially before it starts to diminish without major interventions. The number at risk for death is substantial. This is why leaving implementation in the hands of local officials alone, who lack the expertise and resources and were incapable of preventing the outbreak in the first place, is insufficient.
Conclusions
37. For the reasons above, it is my professional opinion that persons currently detained at FCI Fort Dix are at significantly greater risk of contracting COVID-19 than if they were permitted to shelter in place in their home communities. If infected, many are at increased risk of suffering severe complications and outcomes.
38. It is my professional opinion that conditions in FCI Fort Dix threaten the health and safety of every individual within the prison—detained persons and staff alike—and in their surrounding communities.
39. It is my professional opinion that a necessary component of bringing FCI Fort Dix into compliance with the recommendations of the CDC to minimize the risk of COVID-19 transmission within the facility and to the larger community is to substantially reduce the population. Doing so will allow the facility to significantly reduce the risk of infection for both incarcerated people and correctional officers, which in turn protects the communities where corrections staff live.
40. It is my professional opinion that those who are medically vulnerable20 need to be moved out of FCI Fort Dix to the absolute maximum extent possible. In addition, the overall population needs to be significantly lowered to reduce the density in the jails
20 Persons held at Fort Dix over the age of 50, as well as all current and future persons held at Fort Dix of any age who experience (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease, or other chronic conditions associated with impaired heart function; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) neurological and neurologic and neurodevelopment conditions [including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; (l) a current or recent (last two weeks) pregnancy; and/or severe obesity.

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to allow for adequate social distancing, minimize the strain on the jail’s medical care system, ensure adequate space is available for necessary quarantining. 41. It is my public health recommendation that a public health expert be appointed to oversee operations related to preventing further spread of COVID-19 in FCI Fort Dix, which may include authorizing further staggered release of detainees until it is possible to maintain consistent social distancing and appropriate hygiene within the facility. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 29th day of April, 2020, in Alameda County, California.
__________________________________ Joe Goldenson, MD
References 1. Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016. 2. Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85. 3. Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447. 4. Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344. 5. Nakamoto Group, Prison Rape Elimination Act Audit Report of FCI Fort Dix (2017), https://www.bop.gov/locations/institutions/ftd/PREA_final_report_ftd.pdf.

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6. Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)30663-8. doi: 10.1016/S0140-6736(16)30663-8
7. Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151.
FCI Fort Dix Admissions & Orientation Handbook, https://www.bop.gov/locations/institutions/ftd/FTD_aohandbook.pdf.

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CURRICULUM VITAE
JOE GOLDENSON, MD 1406 CYPRESS STREET BERKELEY, CA 94703
(510) 557-1086 jgoldenson@gmail.com

EDUCATION

Post Graduate Training

February 1992
1979-1980 1976-1979

University of California, San Francisco, CPAT/APEX Mini-Residency in HIV Care Robert Wood Johnson Fellowship in Family Practice University of California, San Francisco Residency in Family Practice

Medical School 1973-1975
1971-1973

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

Undergraduate Education

1967-1971

University of Michigan, Ann Arbor B.A. in Psychology

PROFESSIONAL EXPERIENCE

Practice Experience

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

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

Consulting 3/20-Preset

Federal Court appointed Medical Monitor, Chavez, et al., v. County

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6/16-8/19 4/02-Present
6/14-9/14 6/10-12/13
6/08-6/12 5/08-9/09 1/08
9/07-1/10
8/06-8/12
6/05 11/02-4/03 4/02-8/06
1/02-3/02
8/01-4/02 7/01-4/02 1/96-1/14 5/95-6/08
3/98-12/98 2/98 6/94

of Santa Clara, Case No. 15-cv-05277-RMI, Consent Decree, United
States District Court, Northern District of California, Eureka Division,
re: Medical care in Santa Clara County Jail
Consultant to Los Angeles Department of Health Services re: provision of health care services in the LA County Jail Federal Court Medical Expert, Plata v. Newsome, Class Action Lawsuit re: prisoner medical care in California State Prison System Medical expert for the Illinois Department of Corrections and the ACLU of Illinois Federal Court appointed Medical Monitor, U.S.A. v. Cook County, et al., United States District Court for the Northern District of Illinois, No. 10 C 2946, re: medical care in the Cook County Jail Member, Plata v. Schwarzenegger Advisory Board to the Honorable Thelton E. Henderson, U.S. District Court Judge Medical Expert for ACLU re Maricopa County Jail, Phoenix, AZ Member of the National Commission on Correctional Health Care’s Technical Assistance Review Team for the Miami Dade Department of Corrections Federal Court appointed Medical Expert, Herrera v. Pierce County, et al., re: medical care at the Pierce County Jail, Tacoma, WA State Court Appointed Medical Expert, Farrell v. Allen, Superior Court of California Consent Decree re medical care in the California Department of Juvenile Justice Member of Technical Assistance Review Team for the Dallas County Jail Medical Expert for ACLU re Jefferson County Jail, Port Townsend, Washington Federal Court Medical Expert, Austin, et. al vs Wilkinson, et al, Class Action Law Suit re: Prisoner medical care at the Ohio State Penitentiary Supermax Facility Consultant to the Francis J. Curry, National Tuberculosis Center re: Tuberculosis Control Plan for the Jail Setting: A Template (Jail Template), Medical Expert for ACLU re Wisconsin Supermax Correctional Facility, Boscobel, WI Medical Expert for Ohio Attorney General’s Office re Ohio State Prison, Youngstown, OH Member and Surveyor, California Medical Association Corrections and Detentions Health Care Committee Medical Expert for the Office of the Special Master, Madrid vs Alameida, Federal Class Action Law Suit re: Prisoner medical care at the Pelican Bay State Prison Supermax Facility Member, Los Angeles County Department of Public Health Jail Health Services Task Force Medical Expert, Department of Justice Investigation of Clark County Detention Center, Las Vegas, Nevada Surveyor, National Commission on Correctional Health Care,

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Work Related Committees

1/14 to present 10/11 to 5/19 5/07-10/12
12/04-3/06
6/03-8/03
3/02-1/03
6/01-1/15 3/01
9/97-6/02 3/97-3/02 3/96-6/12 2/00-12/00 12/98-12/00 7/94-7/96 6/93-6/95 2/92-2/96 3/90-7/97 1/93-7/93

Member, Editorial Advisory Board, Correctional Health Care Report Member, Board of Directors of the National Commission on Correctional Health Care Liaison to the CDC Advisory Council for the Elimination of Tuberculosis (ACET) from the National Commission on Correctional Health Care Member of the CDC Advisory Council for the Elimination of Tuberculosis (ACET) Ad Hoc Working Group on the Prevention and Control of Tuberculosis in Correctional and Detention Facilities: Recommendations from CDC (MMWR 2006; 55(No. RR-9)) Member of the Advisory Panel for the Francis J. Curry National Tuberculosis Center and National Commission on Correctional Health Care, 2003: Corrections Tuberculosis Training and Education Resource Guide Member of the Advisory Committee to Develop the Tuberculosis Control Plan for the Jail Setting: A Template (Jail Template), Francis J. Curry, National Tuberculosis Center Director’s Cabinet San Francisco Department of Public Health Consultant to Centers for Disease Control on the Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings (MMWR 2003; 52(No. RR-1)) Member, Executive Committee of Medical Practice Group, San Francisco Department of Public Health American Correctional Health Services Association Liaison with American Public Health Association Chairperson, Bay Area Corrections Committee (on tuberculosis) Medical Providers’ Subcommittee of the Office-based Opiate Treatment Program, San Francisco Department of public Health Associate Chairperson, Corrections Sub-Committee, California Tuberculosis Elimination Advisory Committee Advisory Committee for the Control And Elimination of Tuberculosis, San Francisco Department of Public Health Managed Care Clinical Implementation Committee, San Francisco Department of Public Health Tuberculosis Control Task Force, San Francisco Department of Public Health San Francisco General Hospital Blood Borne Pathogen Committee Medical Staff Bylaws Committee, San Francisco Department of Public Health

ACADEMIC APPOINTMENT

1980-2015

Assistant Clinical Professor

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University of California, San Francisco
PROFESSIONAL AFFILIATIONS Society of Correctional Physicians, Member of President’s Council, Past-Treasurer and Secretary American Correctional Health Services Association, Past-President of California Chapter American Public Health Association, Jails and Prison’s Subcommittee Academy of Correctional Health Professionals
PROFESSIONAL PRESENTATIONS Caring for the Inmate Health Population: A Public Health Imperative, Correctional Health Care Leadership Institutes, July 2015 Correctional Medicine and Community Health, Society of Correctional Physicians Annual Meeting, October, 2014 Identifying Pulmonary TB in Jails: A Roundtable Discussion, National Commission on Correctional Health Care Annual Conference, October 31, 2006 A Community Health Approach to Correctional Health Care, Society of Correctional Physicians, October 29, 2006 Prisoners the Unwanted and Underserved Population, Why Public Health Should Be in Jail, San Francisco General Hospital Medical Center, Medical Grand Rounds, 10/12/04 TB in Jail: A Contact Investigation Course, Legal and Administrative Responsibilities, Francis J. Curry National Tuberculosis Center, 10/7/04 Public Health and Correctional Medicine, American Public Health Association Annual Conference, 11/19/2003 Hepatitis in Corrections, CA/NV Chapter, American Correctional Health Services Association Annual Meeting, 1/17/02 Correctional Medicine, San Francisco General Hospital Medical Center, Medical Grand Rounds, 12/16/02 SuperMax Prisons, American Public Health Association Annual Conference, 11/8/01 Chronic Care Programs in Corrections, CA/NV Chapter, American Correctional Health Services Association Annual Meeting, 9/19/02 Tuberculosis in Corrections - Continuity of Care, California Tuberculosis Controllers Association Spring Conference, 5/12/98 HIV Care Incarcerated in Incarcerated Populations, UCSF Clinical Care of the AIDS Patient Conference, 12/5/97 Tuberculosis in Correctional Facilities, Pennsylvania AIDS Education and Training Center, 3/25/93 Tuberculosis Control in Jails, AIDS and Prison Conference, 10/15/93 The Interface of Public Health and Correctional Health Care, American Public Health Association Annual Meeting, 10/26/93 HIV Education for Correctional Health Care Workers, American Public Health Association Annual Meeting, 10/26/93
PUBLICATIONS Structure and Administration of a Jail Medical Program. Correctional Health Care:

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Practice, Administration, and Law. Kingston, NJ: Civic Research Institute. 2017.
Structure and Administration of a Jail Medical Program – Part II. Correctional Health Care Report. Volume 16, No. 2, January-February 2015.
Structure and Administration of a Jail Medical Program – Part I. Correctional Health Care Report. Volume 16, No. 1, November-December 2014.
Pain Behind Bars: The Epidemiology of Pain in Older Jail Inmates in a County Jail. Journal of Palliative Medicine. 09/2014; DOI: 10.1089/jpm.2014.0160
Older jail inmates and community acute care use. Am J Public Health. 2014 Sep; 104(9):1728-33.
Correctional Health Care Must be Recognized as an Integral Part of the Public Health Sector, Sexually Transmitted Diseases, February Supplement 2009, Vol. 36, No. 2, p.S3–S4
Use of sentinel surveillance and geographic information systems to monitor trends in HIV prevalence, incidence, and related risk behavior among women undergoing syphilis screening in a jail setting. Journal of Urban Health 10/2008; 86(1):79-92.
Discharge Planning and Continuity of Health Care: Findings From the San Francisco County Jail, American Journal of Public Health, 98:2182–2184, 2008 Public Health Behind Bars, Deputy Editor, Springer, 2007 Diabetes Care in the San Francisco County Jail, American Journal of Public Health, 96:1571-73, 2006 Clinical Practice in Correctional Medicine, 2nd Edition, Associate Editor, Mosby, 2006. Tuberculosis in the Correctional Facility, Mark Lobato, MD and Joe Goldenson, MD, Clinical Practice in Correctional Medicine, 2nd Edition, Mosby, 2006.
Incidence of TB in inmates with latent TB infection: 5-year follow-up. American Journal of Preventive Medicine. 11/2005; 29(4):295-301.
Cancer Screening Among Jail Inmates: Frequency, Knowledge, and Willingness Am J Public Health. 2005 October; 95(10): 1781–1787
Improving tuberculosis therapy completion after jail: translation of research to practice. Health Education Research. 05/2005; 20(2):163-74.
Incidence of TB in Inmates with Latent TB Infection, 5-Year Follow-up, American Journal of Preventive Medicine, 29(4), 2005 Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, Morbidity and Mortality Reports, (External Consultant to Centers for Disease Control),Vol. 52/No. RR-1 January 24, 2003 Randomized Controlled Trial of Interventions to Improve Follow-up for Latent Tuberculosis Infection After Release from Jail, Archives of Internal Medicine, 162:1044-1050, 2002 Jail Inmates and HIV care: provision of antiretroviral therapy and Pneumocystis carinii pneumonia prophylaxis, International Journal of STD & AIDS; 12: 380-385, 2001 Tuberculosis Prevalence in an urban jail: 1994 and 1998, International Journal of Tuberculosis Lung Disease, 5(5):400-404, 2001 Screening for Tuberculosis in Jail and Clinic Follow-up after Release, American Journal of Public Health, 88(2):223-226, 1998

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A Clinical Trial of a Financial Incentive to Go to the Tuberculosis Clinic for Isoniazid after Release from Jail, International Journal of Tuberculosis Lung Disease, 2(6):506-512,1998
AWARDS Armond Start Award of Excellence, Society of Correctional Physicians, 2014 Award of Honor, San Francisco Board of Supervisors, 2014 Award of Honor, San Francisco Health Commission, 2014 Certificate of Appreciation, San Francisco Public Defender’s Office, 2014 Certificate for Excellence in Teaching, California Department of Health Services, 2002 Employee Recognition Award, San Francisco Health Commission, July 2000 Public Managerial Excellence Award, Certificate of Merit, San Francisco, 1997
LICENSURE AND CERTIFICATION Medical Board of California, Certificate #A32488 Fellow, Society of Correctional Physicians Board Certified in Family Practice, 1979-1986 (Currently Board Eligible)

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Declaration of Nina H. Fefferman, Ph.D. 1. I am a full professor at the National Institute for Mathematical and Biological Synthesis at the University of Tennessee, Knoxville. I am jointly appointed in both the Department of Mathematics and the Department of Ecology and Evolutionary Biology. I am also an Associate Director of the University of Tennessee One Health Initiative and the Director of the UT Mathematical Modeling Consulting Center. As a professor and academic administrator of research efforts, I have 16 years of experience in building, analyzing, and applying mathematical models of infectious diseases to help design public health policy and advise policy makers. My curriculum vitae is attached as Exhibit A. 2. For 9 years, I worked as a researcher for the United States Department of Homeland Security as part of the Command, Control, and Interoperability Center for Advanced Data Analytics, where my research focused on biosecurity, pandemic preparedness, and complex adaptive systems. I have served as a subject matter expert for the Los Alamos National Labs, the US Environmental Protection Agency, the Department of Defense, and the Centers for Disease Control and Prevention, all in the area of biodefense using mathematical models of outbreaks of infectious diseases. My work has been funded by grants from the National Institutes of Health, the National Science Foundation, the Department of Defense, the US Department of Agriculture, the US Fish and Wildlife Service, and the US Department of Homeland Security. In each of these roles, I have designed, implemented, and analyzed mathematical models and helped translate the insights derived from those models to shape policy to keep populations safe.
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3. In 2006-2007, I served as a consultant to the New Jersey Department of Corrections, helping understand, anticipate, and plan mitigation for vulnerabilities of the NJ prison system to infectious disease outbreaks.
4. I have received federal funding for my work on pandemic preparedness and response plans for H1N1 2009, Ebola in 2014, Zika virus in 2016, and now for COVID-19. In each of the previous efforts, the results of my work have translated directly into policies implemented by municipal, state, federal, and international agencies (as appropriate).
The nature of COVID-19 5. The entire world is currently facing an ongoing pandemic of the SARS-nCoV-2 virus. The virus transmits very easily, with each infected person (estimated to the best of our current understanding) going on to infect between 2.4-3.8 other people over the average 10-14 days of infectiousness. This leads to exponential growth in the outbreak, meaning that there is rapid spread among individuals within a single population and simultaneous expansion to new populations. 6. The virus can be transmitted in the absence of symptoms, either before an individual develops signs and symptoms of illness, or even in the case that an individual never progresses to exhibit illness themselves. Clinical testing is the only way to identify who may be infectious. Currently, the United States does not have sufficient access to testing to adequately identify even a majority of current cases, much less the percentage of current active infections that would need to be identified and isolated to contain the spread of disease. 7. COVID-19 causes serious illness, with overall case fatality rates in the United States so far estimated at 5.8%. An estimated 20% of those who become infected and develop
2

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symptoms require significant medical intervention. While certain medical conditions (including, but not limited to hypertension, asthma, COPD, diabetes, and AIDS) increase the probability of death from infection, otherwise perfectly healthy people are also vulnerable to death from COVID-19. Increasing age is a predictor of increased severity of illness and risk of death. Current data show that those between 55 and 64 years of age experience case fatality rates of between 1% and 3%, increasing with age until those between 65 and 84 years of age show case fatality rates between 3% and 11%, and those 85 years old or older show case fatality rates between 10% and 27%.
8. COVID-19 is now the leading cause of death in the United States. 9. Of the 20% of patients who develop severe symptoms in need of medical intervention, 30% are expected to require intensive care in order to survive. Given the infectiousness of the virus, this means that even if a relatively small percentage of a population is currently infected, the capacity of the medical support systems that serve them will be exhausted. When medical resources are exhausted, the mortality rates will increase even further above these already staggeringly high levels, including progression to death for more of the cases not currently considered necessarily fatal. 10. Although clinical trials to try to identify effective medicines and therapeutics to treat current infections, and research and trials in vaccine development to prevent future infections, are currently underway across the globe, as yet, no meaningful medical interventions have been shown to be effective against the virus. Our current best lines of defense are epidemiological rather than medical; interrupting the transmission of the disease rather than helping infected individuals to survive.
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11. Individual practices such as the use of personal protective equipment, maintaining physical distance from others (also called “social distancing”) and frequent washing (of hands, body, and environmental surroundings) with soaps and disinfectants are the only actions individuals can take that have been shown to be effective at self-protection from catching the virus.
The exponential rate of COVID-19 infection in FCI Fort Dix 12. FCI Fort Dix is already experiencing a serious outbreak of COVID-19, with an infection rate that far exceeds the state of New Jersey as a whole. 13. According to the BOP, there are 30 current, lab-result-confirmed cases of COVID-19 at FCI Fort Dix. This number was reported on April 28, 2020, and is undoubtedly much higher today, given the rate of spread and the failure to test patients who may be asymptomatic yet continuing to spread the virus. 14. With a population of 2,947, FCI Fort Dix therefore has a reported COVID-19 infection prevalence of 1,018 per 100,000. This is drastically higher than the surrounding community. 15. By comparison, the state of New Jersey as a whole reports a COVID-19 infection prevalence of 73 per 100,000. 16. As a result, at a minimum, the reported infection prevalence at Fort Dix is approximately 14 times that for New Jersey as a whole.
The implications of COVID-19 in detention facilities and proposed policies for mitigation
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17. Based on my substantive expertise, long history of research, and as practice as a modeler of infectious outbreaks, I respectfully but strongly disagree with the stated premises and conclusions of the Bureau of Prisons recommendations (as most recently updated in BOP’S Home Confinement memorandum, April 22, 2020). These recommendations, by design, fail to reduce the population at FCI Fort Dix sufficiently to prevent the exponential spread of COVID19, both within the facility and in the surrounding community. My disagreement is based on the following reasoning and logic, arrived at via my expertise in the field.
18. The goal of any action taken must be the increased safety and survival of the population served. In the case of a prison, the population under consideration consists of three separate groups, each at risk: the inmates themselves, the staff who serve at the prison facility in all capacities, and the general public into whose company the staff return after their work days and to into whose company the inmates within the prison would be returned in released from detention. Determination of inmate eligibility for release must serve to balance risks appropriately to best protect all of these groups. At the moment, some of the listed criteria for eligibility for release severely limit the potential population of inmates who may be considered. These limitations so drastically increase the epidemiological risk to inmates, staff, and public that they do not serve the greater goal of increasing the overall safety and survival of the total population.
19. This rationale is based on the understanding that, despite best efforts to increase personal hygiene and social distancing practices, and to reduce inmate movements and suspend access to members of the public (contractors, visitors, and legal professionals), prisons are inherently incapable of reducing the risks of transmission to those seen in the broader community. The needs for oversight over inmate populations by staff, physical limitations on space, housing,
5

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and infrastructure required to maintain the incarcerated population, and even the common practices of employing inmates as laborers throughout the prison facilities in ways that require intermixing among cohorts all contribute to risks that individuals in the broader community do not face while practicing “stay-at-home” protocols.
20. Proposed efforts to screen inmates and staff are insufficient due to lack of clinical testing availability across the nation, meaning that only those who are currently showing symptoms are likely to be able to be tested, leaving room for significant transmission of infection prior to/in the absence of the development of any symptoms of illness.
21. There is already likely to be circulating infection that continues to go undetected due to the current CDC recommendations to test only those who show symptoms of infection. Current estimates, though based on incomplete data, suggest that as many as 40% of cases may be asymptomatic and these cases may still be capable of transmitting infection to others.
22. Incarceration is itself a source of physiological compromise — research has shown that incarcerated individuals have health outcomes that more closely resemble those described for patients 10-15 years older than their physiological age. This means that, even at the same level of effective social distancing and personal hygiene, a prison population becomes a greater reservoir for infection than would the same number of people behaving in the same way in the broader community.
23. While those at greatest risk of death from COVID-19 are medically vulnerable, severe health outcomes (including death) are regularly described in even young and otherwise healthy individuals. Actions that increase the spread of COVID-19 expose anyone infected to non-trivial risks. Staff who interact regularly with inmates must themselves be considered at risk
6

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due to constant interaction with the population they oversee. As they return to the broader community at the end of their workday, those risks return with them.
24. Increasing the spread of COVID-19 also depletes valuable medical resources. Each new case not only incrementally increases the risk of death for COVID-19 patients, but also increases the risk of all-cause mortality in the community as the medical professionals/resources are insufficient to meet the baseline medical needs of the community (i.e. emergency rooms overwhelmed with COVID-19 patients will have increased numbers of deaths from heart attacks due to delays in access to medical attention). By keeping people in prisons and increasing the inmates’ own likelihood of requiring medical attention (relative to the same numbers of cases requiring medical attention that would be needed for a population of the same size in the general population), we increase the burden to the medical staff and resources overall. This is true not only for medical facilities inside a prison as the number of seriously ill inmates are likely to exceed the capacity for attention within prison facilities, but also because each additional case caused in staff or staff-vectored community infection will also contribute to the broad burden on medical resources.
25. Epidemiologically, the only way to meaningfully reduce the risks posed to the entire population—inmates, staff, and public—is to drastically reduce the prison population. Due to exponential growth in outbreaks, each preventable infection that we fail to prevent directly impacts (on average) 3 people, who then also each impact 3 people, and so on. Every infection we can prevent saves lives directly and indirectly.
26. For all of the reasons herein, in my expert opinion, the current efforts are epidemiologically insufficient to protect inmates, prison staff, or the general public surrounding the prison. It is my opinion that the current efforts are not sufficiently justified by the rationale of
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Protecting the Public (as described in Attorney General’s memorandum dated April 3rd, 2020). It is my opinion that the public interest is best served by relaxing the criteria for consideration for release until the point where epidemiological models of within-prison transmission, for populations whose health demographics incorporate the physiological compromise and physical restrictions inherent in incarceration, approach the same levels of risk of infection and transmission that would be seen in the same population were it to be released.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 29th day of April, 2020, in Knox County, TN.
__________________________________ Nina H. Fefferman, Ph.D.
References 1. Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151. 2. Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020. MMWR Morb Mortal Wkly Rep 2020;69:343-346. DOI: http://dx.doi.org/10.15585/mmwr.mm6912e2
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3. US Attorney General, and United States of America. "The First Step Act of 2018: Risk and Needs Assessment System." (2019).
4. Lofgren E, Lum K, Horowitz A, Madubuowu B, and Fefferman N. The Epidemiological Implications of Incarceration Dynamics in Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19. Published online: 4/14/20. medRxiv 2020.04.08.20058842; doi: https://doi.org/10.1101/2020.04.08.20058842
5. Nishiura H, Kobayashi T, Suzuki A, Jung S-Mok, Hayashi K,Kinoshita R, Yang Y, Yuan B, Akhmetzhanov AR, Linton NM, Miyama T, Estimation of the asymptomatic ratio of novel coronavirus infections (COVID-19), International Journal of Infectious Diseases (2020), doi:https://doi.org/10.1016/j.ijid.2020.03.020
6. McClelland DC, Alexander C, Marks E. The need for power, stress, immune function, and illness among male prisoners. Journal of Abnormal Psychology. 1982;91(1):61.
7. Kouyoumdjian FG, Andreev EM, Borschmann R, Kinner SA, McConnon A. Do people who experience incarceration age more quickly? Exploratory analyses using retrospective cohort data on mortality from Ontario, Canada. PloS one. 2017;12(4).
8. State of New Jersey, COVID-19 Information Hub, https://covid19.nj.gov/#live-updates (last accessed April 29, 2020).
9. Johns Hopkins Univ. of Medicine, Coronavirus Resource Center, https://coronavirus.jhu.edu/data/mortality (last accessed Apr. 29, 2020).
10. N.Y. Times, New Jersey Coronavirus Map and Case Count, https://www.nytimes.com/interactive/2020/us/new-jersey-coronavirus-cases.html (last accessed April 29, 2020).
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Nina H. Fefferman
http://feffermanlab.org

Nationality: United States of America Telephone: 781 710 5025 e-mail: nina.h.fefferman@gmail.com

Departments: Ecology and Evolutionary Biology & Mathematics
Address: 447 Hesler Biology Building University of Tennessee
Knoxville, TN 37996

Education

2005 2001 1999

PhD in Mathematical Biology from the Department of Biology, Tufts University. Advisor: J. Michael Reed
MS in Mathematics from the Department of Mathematics, Rutgers University. Advisor: J. Beck
AB in Mathematics from Princeton University

Positions

202020182018 2016 - 2018 2015 - 2016 2012 - 2016 2011 - 2016 2008 - 2012 2007 - 2016 2005 - present 2005 - 2007 2005

Associate Director, UT One Health Initiative, University of Tennessee, Knoxville Director, Mathematical Modeling Consulting Center, University of Tennessee,
Knoxville Professor, Depts. of Mathematics & Ecology and Evolutionary Biology, University
of Tennessee, Knoxville Associate Professor, Depts. of Mathematics & Ecology and Evolutionary Biology,
University of Tennessee, Knoxville Program Director, Graduate Program in Ecology and Evolution, Rutgers University Associate Professor, Dept. of Ecology, Evolution, and Natural Resources, Rutgers
University Assistant/Associate Professor, School of Public Health, University of Medicine and
Dentistry of New Jersey Assistant Professor, Dept. of Ecology, Evolution, and Natural Resources, Rutgers
University Research Assistant/Associate Professor, The Center for Discrete Mathematics and
Theoretical Computer Science, Rutgers University Co-Director, Tufts University Initiative for the Forecasting and Modeling of
Infectious Disease (InForMID), Tufts University School of Medicine Visiting Research Associate, Center for Discrete Math and Theoretical Computer
Science (DIMACS), Rutgers University Short Term Visitor, School of Natural Sciences, Institute for Advanced Study

Honors/Awards

2019 2019
2017 2016 2015 2012

Invited Participant of the 11th.Triennial Invitational Choice Symposium Invited Performer/Participant, Stand Up Science – a public performance featuring stand-up comics and scientists discussing their work Invited Research Team Leader: AWM Women in Mathematical Biology Workshop Invited Speaker at the National Academy of Sciences Sackler Colloquium Coauthored an article chosen for the cover of Phil Trans Roy Soc B (issue 370.1665) Invited to Health Foo 2012

1

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2011
2010 2009 2007 -

Shared the Virginia Governor's Technology Award in the category of ‘Cross-Boundary Collaboration in Modeling & Simulation’ for our study ‘Strategic Default in the Context of a Social Network: An Epidemiological Approach’. Speaker at TEDx Midatlantic Rutgers University Packard Fellow Nominee Coauthored an article chosen for the cover of The Lancet Infectious Diseases (vol. 7) Invited to give 22 Keynote, Plenary, or Public Lectures (see Invited Talks for details), over
three continents

Media Coverage (interviews and coverage):
Television/Online Video Broadcasts: WBIR News, 2019 NJTV News, 2015 Discovery Channel “How Stuff Works” (Season 2: “Games Unboxed”), 2011 BBC World News Aug 21, 2007 CBS News Aug 22, 2007 Canada Television (CTV) Aug 21, 2007 AT&T Tech Channel Sept, 2007
Radio Broadcasts: NPR Marketplace, Mar 2020 NPR WUOT Knoxville, Mar 2017 PRI Studio 360, Sept 2016 New Tech City, WNYC, Oct 2014 PRI Studio 360, Sept 2014 PRI Studio 360, Jan 2013 BBC UK News, Aug 2007 National Public Radio Podcast “Science Friday”, Sept 2007 AM900 CHML, Sept 2007 National Public Radio “All Things Considered”, Oct 2005
Print/Online Media (2005-present): ABC News, ABS CBN News, ARS Technical, Canadian Press (via CBC), Cell, The Daily Mail (UK), The Daily Telegraph (Australia), The Economist, Forbes, Fox News, G1.com.br (Brazil), O Globo (Brazil), Gazet Van Antwerpen (Belgium), KevinMD, Knox News, NU.nl (Netherlands), Medical News Today, La Jornada (Mexico), New Scientist, PC Gamer, Reuters, TIME, The Washington Post, Science News, Slate.com, the South African Star, Tech News World, Wired, Yahoo! Entertainment and many more…

Research Support

Active 2020-2021

$198,932

2020-2022 $359,849

2017-2022 $138,964

2017-2021 $2,498,876

NSF RAPID – DEB Coupled Social and Epidemiological Networks and COVID-19
DoD Minerva DECUR - The Topology of Interdependent Multi-Domain Behavioral Systems
NSF IOS - Melding Mathematical and Theoretical Models of Stress
NSF EEID – Co-evolutionary Epidemiology of Avian

PI PI UT-PI UT-PI

2

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Completed 2018-2020
2016-2019 2018-2019 2016-2018 2016-2018 2015-2018 2015-2017
2016-2017 2017 2016-2017 2015-2017
2012-2016 2014-2016
2009-2016 2011-2014
2011-2012 2010-2012
2010-2011
2010 2009-2012 2009-2011 2009-2010
2008 2008 2008
2007 2007 2006 2003-2004 2003-2004 2003 2003

$196,628
$99,938 $2,000 $50,000 $190,000 $292,804 $21,003
$75,000 $30,000 $100,000 $130,000
$1,228,053 $100,000
$275,000 $3,853,332
$22,500 $384,000
$99,944
$22,500 $299,886 $89,318 $10,000
$99,990 $5,000 $75,000
$22,500 $22,500 $5,000 $42,000 $1,500
$500 $1,500

Malaria

SESYNC/NIMBioS Modeling Risk Perception, Vectorborne Diseases, and Environmental Integrity
NSF EAGER – CISE – Distributed Anomaly Detection Haines Morris Grant – Internal UTK Competition US - Israel Binational Science Foundation (BSF) NSF RAPID – DEB – Modeling Zika Virus Control USFWS – White-Nose Syndrome Open Grant NSF RAPID – Information & Intelligent Systems –
Virtual Worlds and Experiential Learning US START Center – Leadership in Social Networks Syngenta – Workshop Grant – Math of Agribusiness National Academies Keck Futures Initiative NSF EAGER – DEB – Machine Learning for Co-
Evolutionary Systems Dept. of Homeland Security – CyberSecurity Dept. of Homeland Security – Next Generation
Communications and Interoperability Dept. of Homeland Security – BioSecurity NSF EASM – Ocean Sciences – SocioEconomic Systems
and Climate Change UCDPER – Emergency Preparedness Dept. of Homeland Security – Virtual Worlds and
Experiential Education Dept. of Homeland Security – Self-Organizing
Surveillance Systems Dept. of Homeland Security – BioSecurity NSF – DEB – ULTRA-Ex UCDPER – Emergency Preparedness USDA CSREES Multi-State Research Fund – Vector-
borne Disease Control NIH NAID SBIR – Epidemiological Surveillance Rutgers Climate and Environmental Change Initiative Rutgers Academic Excellence Fellowship, Climate and
Health Research Initiative Dept. of Homeland Security – BioSecurity Dept. of Homeland Security – BioSecurity Tufts Summer Scholars Award – Epidemiology NIH R01 Supplement - Epidemiology Tufts Institute of the Environment MASI Student Travel Award TIES Student Travel Award

PI
PI Co-PI Co-PI PI Co-PI PI
PI Co-I Co-PI Co-PI
PI Project PI
Project PI Co-PI
Co-PI Project PI
Project PI
Co-PI Co-PI PI Co-I
PI PI Co-I
PI PI PI Co-PI Co-I PI PI

Consultancies

2020 2020 2018

American Civil Liberties Union (ACLU) The State of Vermont, Department of Education Ogilvy

3

Case 1:20-cv-05496-RMB Document 1-2 Filed 05/04/20 Page 13 of 31 PageID: 85

2017-present 2009-present 2011-2012 2006-2007 2004-2009 2004 2004

Humane Society International US Centers for Disease Control Research Institute for Housing America Trust Fund New Jersey, Department of Corrections NIH U19 (Center PI: Gorski) T-cell Mediated Immunity National Defense University DARPA

Participation in Research Centers

Center NIMBioS (National Institute for Mathematical and Biological Synthesis)

Position Leadership Team

Description of Role Active participant in working group, organizer of multiple tutorials, mentor for summer research experience for undergraduates, and founding director of the Mathematical Modeling Consulting Center

InForMID (Tufts University Initiative for the Forecasting and Modeling of Infectious Diseases)

Center Co-Director

Researcher and Administrative lead in the area of mathematical modeling of infectious disease epidemiology

CCICADA (US Dept of Homeland Security Command, Control, and Interoperability Center for Advanced Data Analysis)

Project PI

Principle Investigator into data analysis relating to social behavior in virtual/technologically enable environments, bio-security, and bio-inspired algorithms in cyber-security

DIMACS (The Center for Discrete Mathematics and Theoretical Computer Science)

Member

Active participant in working groups, collaborations, and conferences (including acting as organizer for multiple workshops/conferences/tutorials) in all areas of mathematical macrobiology

START (US Dept of Homeland Security Center for the Study of Terrorism and Responses to Terrorism)

Project PI

Principle Investigator working on understanding social behavior and algorithms driving the emergence of extremism and leadership in

Publications (peer reviewed):
* = a student or post-doctoral researcher advised by Fefferman during the research effort reported
Journal Articles: Published or In Press

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68. Lemanski*, N., S. Schwab, D. Fonseca, and N.H. Fefferman. (In press) Coordination Among Neighbors Improves the Efficacy of the Zika Control Despite Economic Costs. PLoS Neglected Tropical Diseases.
67. Wilson, S., S. Sindi, H. Brooks, M. Hohn, C. Price, A. Radunskaya, N. Williams, and N.H. Fefferman. 2020. How Emergent Social Patterns in Allogrooming Combat Parasitic Infections. Frontiers in Ecology and Evolution. 8:54.
66. DeNegre*, A., Myers*, K., and N.H. Fefferman. 2020. Impact of Strain Competition on Bacterial Resistance in Immunocompromised Populations. Antibiotics. 9(3):114
65. Myers*, K., A. Redere*, and N.H. Fefferman. 2020. How Resource Limitations and Household Economics May Compromise Efforts to Safeguard Children During Outbreaks. BMC Public Health. 20(1):1-14.
64. Suarez*, G., O. Udiani*, B. Allan, C. Price, S. Ryan, E. Lofgren, A. Coman, C. Stone*, L. Gallos*, and N.H. Fefferman. 2020. A Generic Arboviral Model Framework for Exploring Tradeoffs Between Vector Control and Environmental Concern. Journal of Theoretical Biology. 490 (2020) 110161.
63. DeNegre*, A., Myers*, K., and N.H. Fefferman. 2020. Impact of Chemoprophylaxis Policy for AIDS-immunocompromised Patients on Emergence of Bacterial Resistance. PLoS One. 15(1): e0225861.
62. Gallos*, L., S. Havlin, G. Stanley, and N.H. Fefferman. 2019. Propinquity drives the emergence of network structure and density. Proceedings of the National Academy of Sciences. 116(41):20360-20365.
61. Stone*, C., S. Schwab*, D. Fonseca, and N.H. Fefferman. 2019. Contrasting the Value of Targeted vs. Area-Wide Mosquito Control Scenarios to Limit Arbovirus Transmission for Different Tropical Urban Population Centers. PLoS Neglected Tropical Diseases. 13.7: e0007479.
60. Myers*, K, A. DeNegre*, L.K. Gallos*, N. Lemanski*, A. Mayberry, A. Redere*, S. Schwab*, O. Stringham, & N.H. Fefferman. 2019. Dynamic Ad Hoc Social Networks in Improvised Intelligence / Counter-Intelligence Exercises: A Department of Homeland Security Red-Team Blue-Team Live-Action Roleplay. Journal of Homeland Security and Emergency Management. https://doi.org/10.1515/jhsem-2018-0027.
59. Suarez*, G.P., L.K. Gallos, and N.H. Fefferman. 2019. A Case Study in Tailoring a Bio-Inspired Cyber-Security Algorithm: designing anomaly detection for multilayer networks. Journal of Cyber Security and Mobility. 8(1):113-132.
58. DeNegre*, A., K. Myers*, M. Ndeffo, and N.H. Fefferman. 2019. Emergence of Antibiotic Resistance in Immunocompromised Host Populations. PLoS One 14 (2), e0212969.
57. Schwab*, S., C. Stone*, D. Fonseca, and N.H. Fefferman. 2019. (Meta)population Dynamics Determine Effective Spatial Distributions of Mosquito-Borne Disease Control. Ecological Applications 29(3): e01856.
56. Kebir*, A., N.H. Fefferman, and S.B. Miled. 2018. A general structured model of a hermaphrodite population. Journal of Theoretical Biology. 449:53-59.
55. Lemanski*, N.J. and N.H. Fefferman. 2018. Expanding the evolutionary theory of aging: honeybees as a test case for an optimal decision making model of senescence. American Naturalist. 191(6):756-766.
54. Schwab*, S., C. Stone*, D. Fonseca, and N.H. Fefferman. 2018. The importance of being urgent: the impact of surveillance target and scale on mosquito-borne disease control. Epidemics. 23:5563.
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53. Beckage, B., L. Gross, S. Metcalf, E. Carr, K. Lacasse, J. Winter, P. Howe, N. Fefferman, A. Zia, and T. Franck. 2018. Integrating human behavior and risk perception into a climate model. Nature Climate Change. 8:79–84.
52. Maslo, B., O. Stringham, A. Bevan, A. Brumbaugh, C. Sanders, M. Hall, and N.H. Fefferman. 2017. High Survival of Some Infected Bat Populations Veils a Persistent Extinction Risk from White-nose Syndrome. Ecosphere. 8(12):e02001.10.1002/ecs2.2001.
51. Stone*, C.M., S.R. Schwab*, D.M. Fonseca, N.H. Fefferman. 2017. Human movement, cooperation, and the effectiveness of coordinated vector control strategies. Journal of the Royal Society Interface. 14(133):20170336.
50. Lemanski*, N.J. and N.H. Fefferman. 2017. Coordination Between the Sexes Constrains the Optimization of Reproductive Timing in Honey Bee Colonies Nature Scientific Reports. 7:2740.
49. Egizi, A., N.H. Fefferman, and R. Jordan. 2017. Relative Risk of Infection with Ehrlichiosis Agents and Lyme Disease in an Area Where Both Vectors are Sympatric. Emerging Infectious Diseases. 23(6):939-945.
48. Greenbaum*, G. and N.H. Fefferman. 2017. Application of network methods for understanding evolutionary dynamics in discrete habitat. Molecular Ecology. DOI: 10.1111/mec.14059
47. Maslo, B., R. Valentin, K Leu, K Kerwin, A Bevan, G.C. Hamilton, N.H. Fefferman, and D.M. Fonseca. 2017. ChiroSurveillance: The Use of Native Bats to Detect Invasive Agricultural Pests. PLoS One. 12(3), e0173321.
46. Robinson*, O.J., O.P. Jensen, M.M. Provost, S. Huang, N.H. Fefferman, A. Kebir and J.L. Lockwood. 2017. Evaluating the vulnerability of sex-changing fish to harvest: A game-theoretic approach. ICES Journal of Marine Science. 74(3):652-659.
45. Gallos*, L., M. Korczynski*, and N.H. Fefferman. 2017. Anomaly Detection Through Information Sharing Under Different Topologies. EURASIP Journal on Information Security. 2017:5. DOI:10.1186/s13635-017-0056-5.
44. Maslo, B., S. Gignoux-Wolfsohn, and N.H. Fefferman. 2017. Success of Wildlife Disease Treatment Depends on Host Immune Response. Frontiers in Ecology and Evolution. 5(28).
43. Lofgren*, E., A. Egizi, and N.H. Fefferman. 2016. Patients as Patches: Ecology and Epidemiology in Healthcare Environments. Infection Control and Hospital Epidemiology. 37(12):1507-1512.
42. Korczynski*, M., A. Hamieh*, J. H. Huh, H. Holm, S. R. Rajagopalan, and N. H. Fefferman. 2016. Hive Oversight for Network Intrusion Early Warning Using DIAMoND: A Bee-Inspired Method for Fully Distributed Cyber Defense. IEEE Communications Magazine 54(6):60-67.
41. Gallos*, L. and N.H. Fefferman. 2015. Simple and efficient self-healing strategy for damaged complex networks. Physical Reviews E. 92(5):052806.
40. Kebir*, A., N.H. Fefferman, S. Ben Miled. 2015. Understanding hermaphrodite species through game theory. Journal of Mathematical Biology. 71(6-7):1505-1524.
39. Gallos*, L., and N.H. Fefferman. 2015. The Effect of Disease-Induced Mortality on Structural Network Properties. PLoS One. DOI: 10.1371/journal.pone.0136704
37. Burkhalter*, J.C., N.H. Fefferman, and J.L. Lockwood. 2015. The impact of personality on the success of prospecting behavior in changing landscapes. Current Zoology. 61:557-568.
36. Robinson*, O., J. Lockwood, O. Stringham*, and N.H. Fefferman. 2015. A Novel Tool for Making Policy Recommendations Based on PVA:Helping Theory Become Practice. Conservation Letters. 8(3):190-198.
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35. Fefferman, N.H. and E.N. Naumova. 2015. Dangers of vaccine refusal near the herd immunity threshold: a modelling study. Lancet Infectious Diseases. S1473-3099(15)70130-1
34. Maslo, B. and N.H. Fefferman. 2015. A Case Study of Bats and White-Nose Syndrome Demonstrating How to Model Population Viability with Evolutionary Effects. Conservation Biology. 29(4):1176-1185. DOI: 10.1111/cobi.12485.
33. Parham, P E. J. Waldock, G.K. Christophides, D. Hemming, F. Agusto, K. J. Evans, N.H. Fefferman, H. Gaff, A. Gumel, S. LaDeau, S. Lenhart, R.E. Mickens, E. Naumova, R. Ostfeld, P. Ready, M. Thomas, J. Velasco-Hernandez, E. Michael. 2015. Climate, Environmental, and Socioeconomic Change – Weighing up the Balance in Vector-Borne Disease Transmission. Philosophical Transactions of the Royal Society B. 370.1665 (2015): 20130551.
32. Egizi, A., N.H. Fefferman, and D. M. Fonseca. 2015. Evidence that implicit assumptions of “no evolution” of disease vectors in changing environments can be violated on a rapid timescale. Philosophical Transactions of the Royal Society B. 370.1665 (2015): 20140136.
31. Greening*, B., N. Pinter-Wollman, and N.H. Fefferman. 2015. Higher-Order Analysis of Information Sharing and Knowledge Capacity in Animal Social Groups Current Zoology. 61(1): 114–127.
30. Gallos*, L. and N.H. Fefferman. 2014. Revealing effective classifiers through network comparison. Europhysics Letters. 108(3): 38001.
29. Lofgren*, E.T., R.W. Moehring, D.J. Anderson, D.J. Weber, and N.H. Fefferman. 2014. A Mathematical Model to Evaluate the Routine Use of Fecal Microbiota Transplantation to Prevent Incident and Recurrent Clostridium difficile Infection. Infection Control and Hospital Epidemiology. 35(1):18-27.
28. Greening*, B. and N.H. Fefferman. 2014. Evolutionary Significance of the Role of Family Units in a Broader Social System. Nature Scientific Reports. 4: 3608
27. Seiler, M.J., Collins, A.J., and N.H. Fefferman. 2013. Strategic Mortgage Default in the Context of a Social Network: An Epidemiological Approach. Journal of Real Estate Research 35(4).
26. Robinson*, O.J., N.H. Fefferman, and J.L. Lockwood. 2013. How to effectively manage invasive predators to protect their native prey. Biological Conservation 165: 146-153.
25. Fefferman, N.H., and L.M. Romero. 2013. Can physiological stress alter population persistence? A model with conservation implications. Conservation Physiology. 1(1): cot012. doi: 10.1093/conphys/cot012
24. Moorthy, M., D. Castronovo, A. Abraham, S. Bhattacharyya, S. Gradus, J. Gorski, Y.N. Naumov, N.H. Fefferman, and E.N. Naumova. 2012. Deviations in influenza seasonality: odd coincidence or obscure consequence? Clinical Microbiology and Infection. 18(10):955-962.
23. Hock*, K. and N.H. Fefferman. 2012. Social organization patterns can lower disease risk without associated disease avoidance or immunity. Ecological Complexity. 12:34–42.
22. Hock*, K. and N.H. Fefferman. 2011. Violating Social Norms when Choosing Friends: How Rule-Breakers Affect Social Networks. PLoS One. 2011; 6(10): e26652
21. Hock*, K. and N.H. Fefferman. 2011. Extending the role of social networks to study social organization and interaction structure of animal groups. Annales Zoologici Fennici. 48(6):365-370.
20. Kafai, Y.B. and N.H. Fefferman. 2010. Virtual Epidemics as Learning Laboratories in Virtual Worlds. Journal of Virtual Worlds Research. 3(2):2-15.
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19. Hock*, K., K.L. Ng, and N.H. Fefferman. 2010. Systems approach to studying animal sociality: individual position versus group organization in dynamic social network models. PLoS One. 5(12): e15789.
18. Fefferman, N.H. and E.N. Naumova. 2010. Innovation in Observation: A Vision for Early Outbreak Detection. Emerging Health Threats. 3:e6. doi: 10.3134/ehtj.10.006
17. Lofgren*, E.T., J.B. Wenger, N.H. Fefferman, D. Bina, S Gradus, S. Bhattacharyya, Y.N. Naumov, J. Gorski, E.N. Naumova. 2010. Disproportional Effects in Populations of Concern for Pandemic Influenza: Insights from Seasonal Epidemics in Wisconsin, 1967-2004. Influenza and Other Respiratory Diseases. 4:205-212.
16. Phan, L., N.H. Fefferman, D. Hui, and D. Brugge. 2010. Impact of Street Crime on Boston Chinatown. Local Environment. 15(5):481-491.
15. Reed, J.M., N.H. Fefferman, and R.C. Averil-Murray. 2009. Vital Rate Sensitivity Analysis and Management Implications for Desert Tortoise. Biological Conservation. 14(12): 2813-3222.
14. Wilson-Rich, N., Spivak, M., Fefferman, N.H., Starks, P.T. 2009. Genetic, Individual, and Group Facilitation of Disease Resistance in Insect Societies. Annual Reviews of Entomology. 54:405-23.
13. Fefferman. N.H. 2008. Biological Experimentation in silico. Annales Zoologici Fennici, 45: 367368.
12. Lofgren*, E., M. Senese*, J. Rogers* and N.H. Fefferman. 2008. Pandemic Preparedness Strategies for School Systems: Is Closure Really the Only Way? Annales Zoologici Fennici, 45: 449-458.
11. Fefferman, N.H. and K.L. Ng*. 2007. How Disease Models on Static Graphs Fail to Approximate Epidemics in Shifting Social Networks. Physical Review E. 76:031919. (This article was selected for reprinting by the Virtual Journal of Biological Physics Research 2007)
10. Lofgren*, E. and N.H. Fefferman. 2007. The Untapped Potential of Virtual Game Worlds to Shed Light on Real World Epidemics. The Lancet Infectious Diseases. 7:625–629. (article content was the cover of the journal)
9. Lofgren*, E., N.H. Fefferman, Y.N. Naumov, J. Gorski and E.N. Naumova. 2007. Influenza Seasonality: Underlying Causes and Modeling Theories. Journal of Virology, 81(11):5429-5436.
8. Lofgren*, E., N.H. Fefferman, M. Doshi and E.N. Naumova. 2007. Assessing Seasonal Variation in Multisource Surveillance Data: Annual Harmonic Regression. Lecture Notes in Computer Science. BioSurveillance 2007. eds D. Zeng et al. 4506:114-123.
7. Fefferman, N.H. and K.L Ng*. 2007. The role of individual choice in the evolution of social complexity. Annales Zoologici Fennici, 44:58-69.
6. Fefferman, N.H., J.F.A. Traniello, R.B. Rosengaus and D.V. Calleri. 2007. Disease Prevention and Resistance in Social Insects: Modeling the Survival Consequences of Immunity, Hygienic Behavior and Colony Organization. Behavioral Ecology and Sociobiology, 61:565-577.
5. Starks, P.T.B. and N.H. Fefferman. 2006. Polistes Nest Founding Behavior: a Model for the Selective Maintenance of Alternative Behavioral Phenotypes. Annales Zoologici Fennici, 43:456467.
4. Fefferman, N.H., and E.N. Naumova. 2006. Combinatorial Decomposition of an Outbreak Signature. Mathematical Biosciences, 202(2):269-287.
3. Fefferman, N.H. and J.M. Reed. 2006. A Vital Rate Sensitivity Analysis that is Valid for NonStable Age Distributions and for Short-Term Planning. The Journal of Wildlife Management, 70(3):649-656.
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2. Fefferman, N.H., and P.T.B. Starks. 2006. A Modeling Approach to Swarming in Honey Bees. Insectes Sociaux, 53(1):37-45.
1. Fefferman, N.H., E.A. O′Neil, and E.N. Naumova. 2005. Confidentiality vs Confidence: The aggravation of aggregation as a remedy in public health. Journal of Public Health Policy, 26(4):430-449.
Under Review: 9. Chastain*, E. and N.H. Fefferman. The Evolution of Personality. (Under Review after Revision) 8. Feinberg, F., A. Patania, B. McShane, B. Falk, D. Larremore, E. Feit, J. Helveston, M. Small, M.
Braun, N. Fefferman, and E. Bruch. A Framework for Studying Choices in Networks. (Under Review) 7. Beckage, B., K. Lacasse, J.M. Winter, N.H. Fefferman, F.M. Hoffman, L.J. Gross, S.S. Metcalf, T. Franck, E. Carr, A. Zia, and A. Kinzig. The Earth has humans, so why don’t our climate models? (Under Review) 6. Udiani*, O., K. Lacasse, A. Zia, L. Gallos*, P. Zhong*, B. Beckage, E. Carr, T. Franck, L. Gross, F. Hoffman, P. Howe, A. Kinzig, S. Metcalf, J. Winter, and N.H. Fefferman. Recruitment and Mobilization for Social Movements: implications from network modeling. (Under Review) 5. Udiani*, O., and N.H. Fefferman. Could the Need for Rest Provide a Pathway for the Evolution of Division of Labor in Social Species? (Under Review) 4. Gignoux-Wolfsohn, S.A., Pinsky, M.L., Kerwin, K., Herzog, C., Hall, M., Bennett, A.B., Fefferman, N.H. and Maslo, B., Genomic signatures of evolutionary rescue in bats surviving white-nose syndrome. (Under Review) 3. Myers*, K., N.H. Fefferman, and J.M. Reed. Do Not Reject a Population Viability Analysis by Case Study: Observing an Unlikely Event Does Not Invalidate a Qualitative Model (Under Review) 2. Udiani*, O. and N.H. Fefferman. Has disease risk shaped the evolution of social complexity in insect societies? (Under Review) 1. Siewe*, N., B. Greening*, and N.H. Fefferman. The Potential Role of Asymptomatic Infection in Outbreaks of Emerging Pathogens (Under Review)
Book Chapters:
Published or In Press
10. Fefferman, N.H. When to Turn to Nature-Inspired Solutions for Cyber Systems. 2019. in NatureInspired Security and Resilience. eds. Eltoweissy, Elalfy, Fulp, and Mazurczyk. pp 29-50. The Institution of Engineering and Technology, London, UK.
9. Price, C.R. and N.H. Fefferman. 2019. A Preliminary Exploration of the Professional Support Networks the EDGE Program Creates. in A Celebration of the EDGE Program’s Impact on the Mathematics Community and Beyond (pp. 317-325). Springer, Cham.
8. Brooks. H.Z., M.E. Hohn, C. Price, A.E. Radunskaya, S.S. Sindi, N.D. Williams, S.N. Wilson, N.H. Fefferman. 2018. Mathematical Analysis of the Impact of Social Structure on Ectoparasite Load in Allogrooming Populations. in Understanding Complex Biological Systems with Mathematics eds. A. Radunskaya, R. Segal, B. Shtylla. Association for Women in Mathematics Series, vol 14. pp 47-61. Springer
7. Williams, N.D., H.Z. Brooks, M.E. Hohn, C. R. Price, A.E. Radunskaya, S.S. Sindi, S.N. Wilson, and N. H. Fefferman. 2018. How Disease Risks Can Impact the Evolution of Social Behaviors and Emergent Population Organization. in Understanding Complex Biological Systems with
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Mathematics eds. A. Radunskaya, R. Segal, B. Shtylla. Association for Women in Mathematics Series, vol 14. pp 31-46. Springer 6. Korczynski*, M., A. Hamieh*, J.H. Huh, H. Holm, S. R. Rajagopalan, and N.H. Fefferman. 2017. DIAMoND: Distributed Intrusion/Anomaly Monitoring for Nonparametric Detection (invited extended version). in Security, Privacy and Reliability in Computer Communications and Networks. eds. K. Sha, A Striegel, and M Song. River Publishers Series in Communications. River Publishers. 5. Fefferman, N.H. and L.M. Fefferman. 2011. Mathematical Macrobiology: An Unexploited Opportunity in High School Education. in Biomath in the Schools. eds. M.B. Cozzens, and F.S. Roberts. DIMACS Series in Discrete Mathematics and Theoretical Computer Science. Vol 76. American Mathematical Society. 4. Jagai, J., N.H. Fefferman and E.N. Naumova. 2011. Waterborne Disease Surveillance. in Encyclopedia of Environmental Health. eds. J. Nriagu, S. Kcew, T. Kawamoto, J. Patz, and D. Rennie. Elsevier Science. 1st edition 3. Ji, S., W.A. Chaovalitwongse, N.H. Fefferman, W. Yoo, and J.E. Perez-Ortin. 2009. Mechanismbased Clustering of Genome-wide RNA Levels: Roles of Transcription and TranscriptDegradation Rates. in Clustering Challenges in Biological Networks. eds. S. Butenko, P.M. Pardalos, and W.A. Chaovalitwongse. World Scientific Publishing Company. 2. Fefferman, N.H. and J.F.A. Traniello. 2008. Social Insects as Models in Epidemiology: Establishing the Foundation for an Interdisciplinary Approach to Disease and Sociality. in Organization of Insect Societies: From Genome to Sociocomplexity eds J. Gadau and J. Fewell. Harvard University Press 1. MacLeod, N., N. Ortiz, N.H. Fefferman, W. Clyde, C. Schulter, and J. MacLean. 2000. Phenotypic Response of Foraminifera to episodes of global environmental change. in Biotic Response to Global Change. eds S.J. Culver and P. Rawson. Cambridge University Press
Edited Volumes:
1. Fefferman, N.H. (Ed.) (2008) Annales Zoologici Fennici 45(5)
Peer Reviewed Contributed Conference Papers:
8. Suarez*, G.P., L.K. Gallos, and N.H. Fefferman. 2018. A Case Study in Tailoring a Bio-Inspired Cyber-Security Algorithm: designing anomaly detection for multilayer networks. 2018 IEEE Security and Privacy Workshops (SPW). IEEE, 2018.
7. Fields, D. A., Kafai, Y. B., Giang, M. T., Fefferman, N., & Wong, J. 2017. Plagues and people: Mass community participation in a virtual epidemic within a tween online world. Proceedings of the 12th International Conference on the Foundations of Digital Games. DOI: 10.1145/3102071.3102108
6. Kafai, Y. B., Fields, D. A., Giang, M. T., Fefferman, N., Sun, J., Kunka, D., & Wong, J. 2017. Designing for massive engagement in a tween community: Participation, prevention, and philanthropy in a virtual epidemic. In Interaction Design & Children Conference. New York: ACM, 365-370. ISBN: 978-1-4503-4921-5
5. Fields, D. A., Kafai, Y. B., Giang, M. T., Fefferman, N., & Wong, J. 2017. The Dragon Swooping Cough: Mass community participation in a virtual epidemic within a tween online world. In B. Smith, M. Borge, E. Mercier & K. Y. Lim (Eds.) Proceedings of the 12th International Conference on Computer Supported Collaborative Learning, Volume 2 (pp. 865-866). Philadelphia, PA: International Society of the Learning Sciences.
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4. Fields, D. A., Kafai, Y. B., Sun, J., Fefferman, N., Ellis, E., DeVane, B., Giang, M. T., & Wong, J. 2016. The great dragon swooping cough: Stories about learning designs in promoting participation and engagement with a virtual epidemic. In Barany, A., Slater, S., & C. Steinkuehler (Eds.), Proceedings of the Games + Learning + Society (GLS) 12.0 Conference (pp. 419-424). Pittsburgh, PA: ETC Press.
3. Verma, S., A. Hamieh*, J. H. Huh, H. Holm, S. R. Rajagopalan, M. Korczynski*, and N. H. Fefferman. 2016. Stopping Amplified DNS DDoS Attacks Through Query Rate Sharing Between DNS Resolvers, to appear in the International Conference on Availability, Reliability and Security (ARES). (Note: this is the proceeding of a conference, not a journal, but is equivalent to journal publication for the
field of computer science, however in keeping with the conventions of Biology, Fefferman is last author as PI on the sponsoring grant that funded the research.)
2. Korczynski*, M., A. Hamieh*, J.H. Huh, H. Holm, S. R. Rajagopalan, and N.H. Fefferman. 2015. DIAMoND: Distributed Intrusion/Anomaly Monitoring for Nonparametric Detection. CCCN 2015: 24th International Conference on Computer Communications and Networks, IEEE, 2015.
(Note: this is the proceeding of a conference, not a journal, but is equivalent to journal publication for the field of computer science, however in keeping with the conventions of Biology, Fefferman is last author as PI on the sponsoring grant that funded the research.)
1. Fefferman, N.H., J. Jagai, and E.N. Naumova. 2004. Two - Stage Wavelet Analysis Assessment of Dependencies in Time Series of Disease Incidence. Proceedings of the 2004 Conference of the International Environmetrics Society
Research Mentoring
(bold = current)
Undergraduate Researchers:
Shyretha Brown, Danika Chari, Kaige Chen, Ian Clark, Liz Davis, Anne Eaton, Taylor Eisenstein, Brandon Grandison, Derek Hansen, David Haycraft, John Huffman, Ana Kilgore, John Kim, Edward Lee, Somair Malik, Andrew McConvey, Jeffrey Mandell, Zain Paracha, Luke Postle, Lauren Prince, Asya Pritsker, Cathy Reis, Jeremiah Rogers, Bolanle Salaam, Nicole Scholtz, Margaret Senese, Joshua Smith, Andrew Sohn, Kim Stanek, Johanna Tam, Colleen Thiersch, Elena Tsvetkova, Barton Willage, Immanuel Williams, Nakeya Williams, Barry Walker, Hannah Yin, Yi Ming Yu, Yongqing Yuan, Stefanie Yuen, James Xue, Bobby Zandstra
Graduate Researchers:
(Committee Member, or Advisor for work on funded research projects – not primary dissertation advisor; * = special case)
Kevin Aagard, Emma Bell, Carissa Bleker, Curtis Burkhalter, Jordan Bush, Huilan Chang, Erick Chastain, Fnu Eric Ngang Che, Brittany Coppinger, Ashley Crump, Kathyrn Fair, Alison Golinski, Stephen Grady, Gili Greenbaum, Candice JeanLouis, Hwayoung Jung, Ariel Kruger, Di Li, Eric Lofgren*, Nicholas Lorusso, Adam Marszalek, Benjamin Mcclendon, Anthony Ogbuka, Paul Raff, Orin Robinson, Margaurete Romero, Rajat Roy, Liliana Salvador, Shelby Scott, Tinevimbo Shiri, Brittany Stephenson, Alex Thorn, Rafael Valentine, Alex Villiard, Orion Weldon
(primary research advisor to)
Jessica Beck, Kelly Buch, Ashley DeNegre, Jeff DeSalu, Brad Greening, Natalie Lemanski, Agnesa Redere, Samantha Schwab, Oliver Stringham, Karen Wylie
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Post-Doctoral Researchers: Dr. Erick Chastain, Dr. Lazaros Gallos, Dr. Manuel Garcia-Quisimondo, Dr. Ali Hamieh, Dr. Karlo Hock, Dr. Cindy Hui, Dr. Jing Jiao, Dr. Amira Kebir, Dr. Maciej Korczynski, Dr. Natalie Lemanski, Dr. Kellen Myers, Dr. Kah Loon Ng, Dr. Chris Stone, Dr. Nourridine Siewe (coadvised by Prof. S. Lenhart), Dr. Gonzalo Suarez, Dr. Oyita Udiani, Dr. Peng Zhong
Courses Developed and Taught (all courses developed from scratch)
• Advanced Mathematical Ecology II (MAT/EEB 682 – University of Tennessee, Knoxville) Spring 2017 and 2019
• Evolution, Disease, and Medicine (ENR110 – Rutgers University / EEB 310 – UT, Knoxville) Fall each year 2009 – 2014, Spring 2018 and 2020
• Conversational Bio-Mathematical Modeling (ENR 428 – Rutgers University/ EEB 475 – UT, Knoxville) Spring 2011 – 2014, 2020
• Problems in Ecology: Academic Pedagogy (ENR 601 – Rutgers University) Fall 2015 • (Co-Developed and Taught) Ethics & Professional Development in Ecology and Evolution (ENR
602 01 – Rutgers University) Spring 2013-2016 (exception – sabbatical Fall 2014-Spring 2015) • Introduction to Modeling Ecology, Evolution, and Epidemiology (ENR 604 – Rutgers
University) Spring each year 2010 – 2016 (exception – sabbatical Fall 2014-Spring 2015) • Introduction to Epidemiological Modeling (ENR 603 – Rutgers University) Fall each year 2009
– 2012 • Elements of Data Analysis and Epidemiology (CMPH 343 – Tufts University School of
Medicine) Spring 2006
Professional Memberships
Association for Women in Mathematics (AWM) Association for Women in Science (AWIS) Complex Systems Society (CSS) Institute of Electrical and Electronics Engineers (IEEE) International Union for the Study of Social Insects (IUSSI) Society for Industrial and Applied Mathematics (SIAM) Society for Mathematical Biology (SMB)
Invited Presentations
*upcoming 2020 Public Interview: “Nina Fefferman,” You Made it Weird podcast Public Lecture: “The Role of Applied Math in Real-time Pandemic Response: How Basic Disease
Models Work,” NIMBioS Webinar Series, Knoxville, TN Public Interview: “Math + Virus + Us,” Here We Are podcast and YouTube video. 2019 Public Lecture: “Vaccine Acceptance and Epidemic Risks,” Infinite Futures Event Series, Museum of
Science and Industry, Chicago, IL.
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“When to Turn to Biology for Inspiration in Systems Design,” DIMACS 30th Anniversary Conference, New Brunswick, NJ.
“Patients as patches: Ecological challenges from the epidemiology of healthcare environments,” ESA 2019, Louisville, KY.
“Math and Disease,” Possibilities in Postsecondary Education and Science (PIPES), UTK, Knoxville, TN.
Keynote Address: “Evolving Efficient Solutions: How simple natural systems solve the most complicated problems,” MBI Capstone Conference 2019, Columbus, OH (virtual)
Plenary Talk: “How AIDS prevalence impacts the emergence of antibiotic resistance in bacterial infections,” SIAM BAMM 2019, Richmond, VA.
Public Lecture: “Math and Disease,” Stand Up Science, Farragut, TN. “Biosurveillance and Homeland Security,” Princeton University, NJ. “Understanding Social Communication Systems with Homology Theory,” Complex Systems Seminar,
University of Michigan, Ann Arbor, MI. “Going Against the Grain,” Women Empowered in STEM (WeSTEM) 2019, Champaign, IL. “You’re Worth It: Job Negotiations,” Women Empowered in STEM (WeSTEM) 2019, Champaign, IL.
2018
“Math: A Critical, Treacherous Bridge Between Scientific Disciplines,” American Geophyiscal Union (AGU 2018), Washington DC.
“The Evolution of Social Complexity as Multi-Scale Feedback Control on Networks,” Systems Theory Lunch Colloquium, Harvard Medical School, Boston, MA.
“Saving Bats from Fungal Diseases with Linear Algebra,” Claremont Center for Mathematical Sciences Colloquium, Claremont, CA.
Plenary Talk: “Evolving Efficient Solutions: How simple natural systems solve the most complicated problems,” NIMBioS Undergraduate Research Conference 2018, Knoxville, TN.
Plenary Talk: “Linking Local Decisions with Global Outcomes in Networks: Case Studies in Behavior and Population Health” SIAM Life Sciences 2018, Minneapolis, MN.
“The mathematical biology of networks: from disease outbreaks to cyber-attacks,” TN Governor’s School, University of Tennessee, Knoxville, TN.
“Trans-disciplinary adventures in the mathematical biology of networks: from disease outbreaks to cyber attacks,” DIMACS REU, Rutgers University, Piscataway, NJ.
Public Webinar: “Social and Biological Networks: The Evolution of Social Systems,” US National Academies of Sciences, Engineering, and Medicine: Math Frontiers Webinar Series
2017
“Self-Diagnosing Networks,” Data Institute San Francisco Conference (DSCO17), San Francisco, CA. Keynote: “Evolving Efficient Solutions: How simple natural systems solve the most complicated
problems,” Workshop on Bio-Inspired Security, Trust Assurance, and Resilience (BioSTAR 2017), San Jose, CA. “Wildlife Disease Management Outcomes May Depend on the Mechanism of Host Immune Response,” Distinguished Lecture Series in Immunology and Infectious Diseases, Center for Emerging & Reemerging Infectious Diseases, School of Medicine, University of Washington, Pullman, WA.
2016
“Evolving Healthy Populations,” International Symposium on Biomathematics and Ecology Education and Research 2016, Charlseton, SC.
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“Individuals, Societies, and Climate: Modeling motivations to change,” Oak Ridge National Laboratory Workshop on Human Activity at Scale in Earth System Models, Oak Ridge, TN.
“Network Models in Epidemiology,” US-Canadian Institutes Epidemiology Summer School: Mathematical Modeling of Infectious Disease Spread, MBI, Columbus, OH.
“The Invasion Ecology of Diseases in a Human Environment,” Arthur M. Sackler Colloquia of the National Academy of Sciences, Coupled Human and Environmental Systems, Washington DC.
“Global Feedback Control on Centrality in Self-Organizing Systems”, Mathematical Biosciences Institute Workshop on the Control and Observability of Network Dynamics, MBI, Columbus, OH.
“Zika Control: More Complicated than Hoped?” Next Einstein Forum, Dakar, Senegal.
2015
“Linear Algebraic Tools in Conservation Ecology,” Simon A. Levin Mathematical, Computational and Modeling Sciences Center Seminar, Tempe, AZ.
“Applications of Homology Theory to Animal Communication Systems,” Mathematics and Statistics Colloquium, Arizona State Univ., Tempe, AZ.
“Trade-offs Between Collaboration and Infection Risk: Can ‘social distancing’ improve colony function?” Conference on Complex Systems 2015, Tempe, AZ.
“The Benefits of Ongoing Dynamics in Self-Organizing Social Systems,” Conference on Collective Dynamics and Evolving Networks, Bath, UK.
Plenary Talk: Exploiting the Complexity of Identity to Infiltrate Clandestine Groups – Lessons from a LARP, CyDentity Conference, CCICADA, New Brunswick, NJ.
“Incorporating Evolutionary Rescue into Population Viability Models,” Mathematics of Planet Earth: Workshop on Management of Natural Resources, Washington D.C.
“Distributed Detection Algorithms for Real-Time Maritime CyberSecurity,” Joint CCICADA & AMU Conference on Maritime CyberSecurity, New Brunswick, NJ.
“The Definition of Communication: One way biology and math people accidentally talk past each other and what we might be able to do to fix it,” Annual Meeting, Society for Integrative and Comparative Biology, West Palm Beach, FL.
2014
“BioInspired Anomaly Detection: Social Insects and Network Security,” Dept. of Homeland Security Science and Technology HSARPA CyberSecurity Division Research and Development Showcase and Technical Workshop, Washington D.C.
“n-TANGLE: a new method for comparing networks across scales” Workshop on Advances in Discrete Networks, Dept. of Mathematics, Univ. of Pittsburgh, Pittsburgh, PA.
Keynote Address: “Virtual Worlds Helping Public Health Preparedness,” New Jersey Health Care Quality Institute Annual Meeting, Trenton, NJ.
“A Mathematician’s Role in Fighting Ebola,” Saint Ann’s School, Brooklyn, NY. “Provable Boundaries on Disease Outbreaks in Self-Organizing Social Networks,” The Duke
University Mathematical Biology Colloquium, Durham, NC. Keynote Address: “Designing your own role: Women in STEM,” Tufts University Graduate Student
Luncheon for Women in Science, Medford, MA. “Division of Labor as an Adaptation to Combat Disease Risks?” The Seventh International Symposium
on Biomathematics and Ecology: Education and Research (BEER), Claremont, CA. “How dynamic networks affect disease transmission,” The BioCircuits Institute, UCSD, San Diego,
CA.
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“The Evolution of Social Complexity,” Plant Biology Dept. Seminar, Univ. of Vermont, Burlington, VT.
“Provable Boundaries on Disease Outbreaks in Self-Organizing Social Networks,” Math Dept. Seminar, Univ. of Tennessee at Knoxville, TN.
“Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” Math Dept. Junior Colloquium, Univ. of Tennessee at Knoxville, TN.
“The Life of a Mathematical Researcher,” Saint Ann’s School, Brooklyn, NY. “Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” Social Insect Research
Group Seminar, School of Life Sciences, Arizona State Univ., AZ. “N-tangle: A Network Comparison Method,” Workshop on Animal Social Networks, NIMBioS, TN 2013 “Evolutionary pressures, Infectious Diseases, and Self-Organizing Social Systems,” Evolutionary
Studies Seminar, Co-Sponsored by the Collective Dynamics of Complex Systems Research Group, the Undergraduate Math Club, Upsilon Pi Epsilon, and Pi Mu Epsilon, SUNY Binghamton, NY. “BioInspired Anomaly Detection,” DHS CyberSecurity PI Meeting, Arlington, VA. “Mathematics, Evolutionary Biology, Epidemiology, and National Security”, Saint Ann’s School, Brooklyn, NY. “Evolution of Reproductive Timing and Social Organization in Honey Bees,” Scientific Learning Forum at FMC, Ewing, NJ. “Crowd Sourcing WoW: A Case Study in Improving Pandemic Preparedness,” Annual George M. Sideris Biology Conference, LIU, Brooklyn, NY. 2012 Public Lecture: “Math, Complexity, and Social Groups: Using math to understand the nature of society,” Campus Life Enrichment Committee (CLEC) Lecture, Georgia Southern Univ., GA. “How and Why Static Approximations Can Fail to Give Adequate Insight into Processes on Dynamic Networks,” Math Dept. Colloquium, Georgia Southern Univ., GA. “Theoretical Worlds: An Exploration of Models and Model Systems,” Tufts Univ, Dept. of Civil and Environmental Engineering Seminar Series, Medford, MA. “Help, my avatar is sick!” Panel Talk, SXSW, Austin, TX. “WISE – Women, Ignore Silly Expectations!” 2012 WISE Conference, Texas A&M, TX. 2011 “The Evolution of Social Complexity,” CUNY Initiative for the Theoretical Sciences Workshop on A Unified Theory of Evolution, CUNY, NY. “Balancing Workforce Productivity Against Disease Risks for Environmental and Infectious Epidemics,” Math Dept. Seminar, Univ. of Ghana, Legon, Ghana. “Selective Pressures from Disease on Social Behavior in Hosts,” DIMACS/MBI US - African BioMathematics Initiative: Workshop on Genetics and Disease Control, Elmina, Ghana. Plenary Address: “The Future of Technology and Knowledge,” Next-Generation Communications Interoperability Workshop, Chicago, IL. “Virtual Worlds and Real Epidemics - Insights from WoW's Corrupted Blood Plague,” E-Virtuoses International Conference on Serious Games, Valenciennes, France. Plenary Address: “Disease Robustness and Evolutionary Selective Pressures on Social Organization in Eusocial Insects,” Mathematical Biosciences Institute Workshop on Insect Self-Organization and Swarming, Ohio State Univ., OH.
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“Hakkar’s Corrupted Blood Plague: How an Outbreak in WoW is Helping Epidemiologists Create Better Disease Models,” Game Developer’s Conference 2011, San Francisco, CA
“Exploring the Role of Behavior in Infectious Disease Dynamics: Mathematical Insights from World of Warcraft and other Virtual Worlds,” DIMACS/CCICADA Student Workshop on Where the Mathematical and Computational Sciences Meet Society, Rutgers University, NJ
“Multi-Dimensional Data and the Influence of Human Behavior in Biosurveillance for Infectious Disease Outbreaks,” Global Biosurveillance Conference: Enabling Science and Technology – 2nd Meeting in the Biological Threat Non-Proliferation Conference Series, Santa Fe, NM
2010 “Distributed Algorithms for Collective Visualization of Data,” Visualanalytics Workshop 2010,
Imperial College London, UK “The Importance of Behavioral Dynamics on Disease Burden,” Southern African Wildlife College,
South Africa “The Impact of Stress on Populations,” DIMACS Advanced Study Institute on Conservation Biology,
Limpopo, South Africa “Social Behavior in Virtual Worlds,” Panel Discussant – InPlay 2010, Toronto, Canada “Self-Organizing Networks, Social Complexity, and Disease Dynamics,” Rensselaer Polytechnic
Institute, NY “Playing with Plague: Exploring Disease Dynamics from Within,” 2010 AAAS Annual Meeting, San
Diego, CA “Epidemiological Pressures on the Evolution of Social Complexity,” Mathematical Methods in Systems
Biology, Tel Aviv, Israel 2009 “Information Theoretic Tool for Biosurveillance,” CCICADA Kickoff Meeting, Rutgers Univ., NJ “Perspectives, Challenges, and Creativity in Understanding Behavioral Epidemiology,” Workshop on
Behavioral Epidemiology, Rutgers Univ., NJ “Evolutionary Implications of Epidemics on Social Behavior,” Evolutionary Genetics and Genomics at
Rutgers, Rutgers Univ., NJ Panel participant and Speaker on Popular Culture and Science, Sheffield Documentary Film Festival
'09, Sheffield, United Kingdom Keynote Address: “Epidemiological Insights from Virtual Worlds,” Life Science Dialogue
Heidelberg, - Inaugural Conference, Germany “Social Stability and Success: A new concept in self-organizing systems and preferential attachment,”
Office of Naval Research Workshop on Complex Systems, Institute for Pure and Applied Mathematics, Los Angeles, CA “The Impact of Household Capital Models on Targeted Epidemiological Control Strategies for Diseases with Age-Based Etiologies,” Makerere Univ., Kampala, Uganda Keynote Address: “Hakkar's Corrupted Blood Plague: How an Outbreak in World of Warcraft is Helping Epidemiologists Create Better Disease Models,” Games for Health – Virtual Worlds, Boston, MA “Network Representations and the Evolution of Social Complexity,” Frontiers in Applied and Computational Mathematics, New Jersey Institute of Technology, NJ “Mathematical Optimization, Evolutionary Sociobiology, and Eusocial Insects,” Conference on The Power of Analysis, Princeton Univ., NJ “Mathematical Insights into Behavioral Epidemiology,” Univ. of Texas Health Science Center, Houston, TX
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“Basics of Mathematical Modeling,” Mosquito Modeling Made Easy Day, Center for Vector Biology, Rutgers Univ., NJ
“Mathematical and Computational Methods in Epidemiology and BioSurveillance,” Jackson State University, MS
“Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” UNC, Chapel Hill, Applied Math, NC
“Network models in Epidemiology and Sociobiology: Introduction, Overview, and Recent Advances,” Mathematical Sciences, RPI, NY
2008 “Social Behavior and the Dynamics of Corrupted Blood,” Rice University/Games for Health, Houston,
TX “Possible Selective Mechanisms for the Evolution of Disease-defensive Social Organizations,” Ecology
and Evolution Seminar, Boston Univ., MA “Behavioral Epidemiology in Virtual Worlds: Exploiting the virtual experience,” Advanced
Technology Applications for Combat Casualty Care 08; Telemedicine and Advanced Technologies Research Center Medical Simulation & Training Technology “Recent Advances in the What, How and When of Network Models in Infectious Disease Epidemiology,” SIAM 2008, CA “World of Warcraft Corrupted Blood Disease: Epidemiological Observations and Findings,” Games for Health, Baltimore, MD “Computational Ecology: The Evolution of Sociality,” Frontiers in Applied and Computational Mathematics, New Jersey Institute of Technology, NJ Plenary Talk: “Self-organizing social behavior and disease-defensive organizational strategies in social species,” Complexity 2008, Univ. Illinois Urbana, IL “From the Individual to the Population: Modeling the many levels of evolutionary fitness in social species,” Dept. of Ecology and Evolution and Natural Resources, Rutgers Univ., NJ “Individual Decisions, Group Efficiency," ExxonMobil, Clinton, N.J. 2007 Public Lecture: “Virtual Games, Real Epidemics: Can We Learn Real-Life Lessons in BioDefense from Online Games?” Biosecurity, Biotechnology and Global Health Seminar Series, Program on Science and Global Security, Princeton Univ., NJ “Disease on Networks: Can Static Representations Capture the Full Complexity of a Dynamic Process?” NDSSL Seminar Series, Virginia Bioinformatics Institute, Virginia Tech, VA Public Lecture: “Real People, Virtual Worlds: Watching a Plague Unfold,” Institute for Mathematical Sciences, National Univ. of Singapore “The Continued Mystery of Regular, Old, Annual Flu,” Workshop on Mathematical models for the Study of the Infection Dynamics of Emergent and Re-emergent Diseases in Humans, Institute for Mathematical Sciences, National Univ. of Singapore “Epidemics and the Evolution of Social Complexity,” Program in Ecology and Evolution Seminar Series, Rutgers Univ., NJ “Playing Games at School: Parents, Public Schools, and Children's Health,” DIMACS Workshop on Game Theory in Epidemiology and Ecology, Rutgers Univ., NJ “Analyzing Entropy in Biosurveillance,” U.S. Dept. of Homeland Security research briefing, Washington D.C. “Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connection Field Testers Workshop, Rutgers Univ., NJ
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“Does Securing Infrastructure Against Workforce-Depletion Depend on Whether the Risk is Environmental or Infectious?” DIMACS Workshop on Mathematical Modeling of Infectious Diseases in Africa, Univ. of Stellenbosch, South Africa
“Social interaction and disease dynamics,” Workshop on Analysis of Time Series Data in Epidemiology, Tufts Univ. School of Medicine, Boston, MA
“The Behaviors of Individuals and Populations,” Working Group on Spatio-Temporal and Network Modeling of Diseases, ICMS, Edinburgh, Scotland
“The Evolution of Complexity in Already Social Groups,” Dept. of Ecology and Evolutionary Biology, Princeton Univ., NJ
“Disease as a Selective Pressure and the Evolution of Social Complexity,” Applied Biomathematics, Stony Brook, NY
“Vital Rate Sensitivity Analysis: A new method for population viability analysis - Two examples of its use,” Applied Biomathematics, Stony Brook, NY
“Disease as a Selective Pressure and the Evolution of Social Complexity,” Morin Lab, Dept. of Ecology, Evolution and Natural Resources, Rutgers Univ., NJ
2006 “The Role of Individual Choice in the Evolution of Social Complexity and its Implications Towards the
Emergence of Zoonotic Infections,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Preparing Societal Infrastructure Against Disease-Related Workforce Depletion,” DIMACS Workshop on Facing the Challenge of Infectious Diseases in Africa, University of the Witswatersrand, South Africa “Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connect Institute for High School Teachers, Denver, CO “Societal Bio-defense - How Can we Accomplish Safety, Stability and Efficiency?” SIAM Annual Meeting, Boston, MA “When females should stop supporting lazy males: mathematics and honey bees?” DIMACS REU Seminar Series, Rutgers Univ., NJ “Selected Problems in Epidemiology.” DIMACS Tutorial on Data Mining and Epidemiology, NJ “How Would Termites Prepare for Pandemic Bird Flu and What Should We Learn From Them?” Joint Dept. of Entomology and Center for Infectious Disease Dynamics Seminar, Penn State Univ., PA “Different Scales of BioDefense - Can societies be both safe and efficient?” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ 2005 “Termites in the Nation′s Service,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Applications of Self-Organizing Systems to Epidemiology.” DIMACS Mixer Series, Rutgers Univ., NJ “Disease Signatures: A New Combinatorial Method for Epidemiology,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connect Institute for High School Teachers, Rutgers Univ., NJ “How Complex Systems Can Simplify a Complex Problem: What Epidemiologists Can Learn From Insects,” Institute for Advanced Study, Center for Systems Biology Seminar Series, NJ 2004
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“Incorporating Behavior and Social Structure into Pathogen Defense Strategies. Conference on Innate Immunity for Biodefense,” National Defense University's Center for Technology and National Security Policy (CTNSP) & the Department of Defense, Washington D.C.
Keynote Address: “Social Insects, Immunocompetence and Epidemiology: A Model System for Systems Modelers,” Vanderbilt Medical School, Dept. of Microbiology and Immunology Annual Retreat, TN
“Disease and Immunocompetence in Group-Living Animals: Implications for Human Epidemiology,” DARPA/DSO Workshop on Endogenous Defense, VA
Contributed Presentations 2008. “An Interdisciplinary Framework for Defining and Distinguishing Security Desiderata for
Personally Sensitive Information,” DIMACS/DyDAn Workshop on Internet Privacy: Facilitating Seamless Data Movement with Appropriate Controls 2006. “A Vital Rate Sensitivity Analysis (VRSA) for Non-stable Age Distributions and Short-term Planning,” North American Ornithological Conference 2004. “A Mathematical Analysis of Reproductive Fission,” North American Section of the International Union for the Study of Social Insects (with published abstract) 2004. “Two-stage Wavelet Analysis Assessment of Dependencies in Time Series of Disease Incidence,” The 2004 Conference of the International Environmetrics Society (with published abstract) 2004. “Mathematical Modeling of Behavior and Ecology in Social Insects: Social mechanisms of pathogen control in termite colonies,” Departmental Research Seminar, Tufts Univ. 2003. “Modeling Waterborne Infectious Outbreaks: When, where and how bad will they be?” The 2003 Conference of the International Environmetrics Society (with published abstract) 2003. “Modeling Disease Resistance through Social Interactions in Termites,” The 2nd Conference on the Mathematics and Algorithms of Social Insects (with published abstract)

Service (external to Home Institution)

Ongoing
2020 2019-2021 2019 2019 2018 2018 2018

Referee of papers for American Naturalist, Annales Zoologici Fennici, Behavioral Ecology and Sociobiology, Biological Conservation, BMC Evolutionary Biology, Bulletin for Mathematical Biology, Canadian Biosystems Engineering, Conservation Letters, IMA Journal of Applied Mathematics, Journal of Biological Dynamics, Journal of Infectious Diseases, Journal of Insect Science, Journal of Nonlinear Dynamics, Mathematical Biosciences, Journal of Medical Internet Research, Journal of the Royal Society Interface, Malaria Journal, Nature, Nature Scientific Reports, Parasites and Vecotrs, PeerJ, Phyiscal Reviews X, PLoS Computational Biology, PLoSOne, PloS Medicine, PNAS, Vaccine, Vector-Borne and Zoonotic Diseases
Deputy Editor PLOS Computational Biology
Director of Development, Enhancing Diversity in Graduate Education (EDGE) Foundation
Guest Editor PLOS Computational Biology
Co-Organizer SIAM Network Science Annual Meeting (NS 19)
NSF ad hoc proposal reviewer
Burroughs Wellcome Fund grant proposal reviewer
Co-Organizer IEEE Symposium on Security and Privacy, entitled: 3rd Workshop on Bio-inspired Security, Trust, Assurance and Resilience (BioSTAR 2018)

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2017-cont.
2017
2017 2016
2016
2014 2013- 2016
2013 2013-2016 2013-2019
2012
2012
2011
2011
2011 2011
2010
2010
2010
2010 2010
2010
2009
2009 2009
2009 2008-2010 2008-2010 2008 2008

Member of the Leadership Team of the National Institute for Mathematical and Biological Synthesis
Co-Organizer NIMBioS Workshop on Applying Optimization Techniques to Agricultural Problems
ARO grant proposal reviewer Co-Organizer MBI (the Mathematical Biosciences Institute at Ohio State) Workshop on
Generalized Network Structures and Dynamics Co-Organizer MBI (the Mathematical Biosciences Institute at Ohio State) Emphasis
Semester on Dynamics of Biologically Inspired Networks ARO grant proposal reviewer Member of Scientific Advisory Board for MBI (the Mathematical Biosciences Institute
at Ohio State) NIH grant proposal reviewer Co-Organizer NIMBioS Working Group on Climate Change and Vector-borne Diseases Invited Participant Joint NIMBioS-SESYNC Working Group on Human Risk
Perception and Climate Change Invited Grant Proposal Reviewer for the United States – Israel Binational Science
Foundation US Environmental Protection Agency FIFRA Scientific Advisory Panel (SAP) on
Pollinator Risk Assessment Framework Invited Participant - External Expert Review Panel for Bioscience Research and
Development at Los Alamos National Laboratory Program Committee Member, The Third International UKVAC Workshop on Visual
Analytics (VAW 2011) NSF grant proposal reviewer Co-Organizer DIMACS/MBI US - African BioMathematics Initiative: Advanced Study
Institute and Workshop on Genetics and Disease Control Organizer of the DIMACS Mini-Workshop on ‘Emergent Properties of Dynamic
Biological Networks’ Lecturer at DIMACS/MBI US - African BioMathematics Initiative: Workshop and
Advanced Study Institute on Conservation Biology Organizer of the DIMACS Mini-Workshop on ‘Game-theoretic Approaches to Medical
Prognosis’ NSF grant reviewer/panel participant Invited International Reviewer for Centre of Excellence Grants for the Australian
Research Council Co-Organizer of the DIMACS Workshop on Modeling and Mitigation of the Impacts of
Extreme Weather Events to Human Health Risks Co-Organizer DIMACS Workshop on Economic Epidemiology, Makerere Univ.,
Kampala, Uganda NSF grant reviewer/panel participant Co-Organizer/ Program Co-Chair Workshop on Economic Epidemiology, Makerere
Univ., Kampala, Uganda Co-Organizer Mosquito Modeling Made Easy Day at the N.J. Center for Vector Biology Member Chief Editorial Committee for the DIMACS Book Series Member Editorial Board of DIMACS Educational Modules Series Invited organizer SIAM mini-symposium on Network Models of Infectious Disease Ran the Reconnect Program on Biosurveillance at DIMACS – a week long short course
for teaching faculty at liberal arts institutions on an advanced topic to expand their

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2007
2006-2016 2004 2004 2003
2000-2002 1999

own and their students research opportunities Mentor to two teams of researchers for Department of Homeland Security funded
Research Experience for those at Minority Serving Institutions Advisory/Editorial Board Member for the journal Annales Zoologici Fennici Subject Matter Expert on Innate Immunity and Biodefense, National Defense University Research Consultant, DARPA (via Strategic Analysis, INC.) Developed algorithm for Managing Endangered Species Habitat in Hawaii - MESHH
software package (Reed, J.M., N.H. Fefferman, C.S. Elphick, and M. Silbernagle. 2004) Technical Editor (Cryptography) to MacMillan Press Invited Reviewer of AES submission to the National Institute of Standards and Technology, later published as The Twofish Encryption Algorithm, Schneier, et al, 1999, John Wiley & Sons Inc.

Service (internal to Home Institution)

2020 2019-cont. 2019
2019 2018 2018-cont. 2017-cont. 2017
2017 2016-2017
2016-2017
2016-cont.
2015-2016 2014
2010
2009-2010 2009 2009-2010 2008-2012 2008-2010 2008-2010 2007-2009
2006-2015 2005-2007

Advisor to the COVID-19 Re-Imagining Fall Task Force Head of Graduate Admissions, Program in Ecology and Evolutionary Biology Research Mentor for the NIMBioS Summer Research Experiences (SRE) for
Undergraduates Co-Organizer Tutorial on Networks at NIMBioS Serve on departmental Promotion and Tenure Committee for Prof. O’Meara Serve on Faculty Mentoring Committee for Prof. Kivlin Served as Departmental Coordinator for University Future Faculty Program Research Mentor for the NIMBioS Summer Research Experiences (SRE) for
Undergraduates Lecturer for Joint 2017 MBI-NIMBioS-CAMBAM Summer Graduate Program University of Tennessee, Knoxville Department of Ecology and Evolutionary Biology
Search Committee Member and Diversity Advocate (Ecosystem Ecology Search) University of Tennessee, Knoxville Department of Mathematics Search Committee
Member (Mathematical Biology Search) University of Tennessee, Knoxville Program in Ecology and Evolutionary Biology
Graduate Affairs Committee Member Rutgers University Biological Sciences Area Committee Member Rutgers University EENR Department Wildlife Biology Faculty Search Committee
Member Co-Mentor to a team of researchers for Department of Homeland Security funded
Research Experience for those at Minority Serving Institutions Organizer of the EENR seminar series Organizer of the DIMACS Workshop on Behavioral Epidemiology Member E&E Executive Committee Member of EENR Curriculum Committee Member Chief Editorial Committee for the DIMACS Book Series Member Editorial Board of DIMACS Educational Modules Series Member of the Rutgers University Advisory Board to the Office for the Promotion of
Women in Science, Engineering and Mathematics Research Advisor for Rutgers Univ. DIMACS REU Co-organizer DIMACS seminar series Mathematical and Computational Epidemiology

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Case 1:20-cv-05496-RMB Document 1-3 Filed 05/04/20 Page 1 of 44 PageID: 104 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
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 federal courts for decades and represented prisoners in federal court, 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 1:20-cv-05496-RMB Document 1-3 Filed 05/04/20 Page 2 of 44 PageID: 105 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, references 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 reviewing statecourt convictions 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 de-densifying 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 a few reported cases responding to COVID-based requests for enlargement while a habeas corpus proceeding is pending. (Given the pace of litigation, I assume that more may have been 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

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represent a class of all current and future prisoners of the Elkton 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), application for stay and appeal pending. That case also cited to Money et al. v. Jeffreys, No. 1-20 CV 02094 (N.D. Ill. April 4, 2020), a class action seeking relief on behalf of state prisoners. I had also submitted a declaration similar to this one in that action, and I discussed enlargement as well as the interaction between civil rights litigation and habeas corpus. The Honorable Robert M. Dow, Jr. invoked my discussion, and the court determined not to grant the emergency relief sought by the plaintiff class.
52. Another 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.

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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 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 29, 2020
__________________________ Judith Resnik

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

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

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

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Chair, Yale Law School Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012-present
Member, Board of Managerial Trustees, International Association of Women Judges, 2001-present
Chair, Order of the Coif Book Award Committee, 2018-2020 Fellow, Whitney Humanities Center, 2020-2021 Chair, American Association of Law Schools, Section on Law and Humanities, 2020 Chair, American Association of Law Schools, Section on its Sections, 2019-2022 Advisor, American Law Institute, Project on Sexual and Gender-Based Misconduct on
Campus, 2015-present Member, Task Force on Federal Judicial Selection, Project on Government Oversight of
The Constitution Project, 2019 Steering Committee, Women Faculty Forum, Yale University, 2001-present
Co-chair, 2001-2003, 2006-2008 Co-Chair, Judicial-Academic Network, National Association of Women Judges,
2009-2019, 1998-2001 Academic Fellow, Pound Civil Justice Institute, 2016-present Fellow, Davenport College, Yale University, 2002-present Former Chair, Section on Civil Procedure, American Association of Law Schools;
2018, 2003, 1991 Member, Executive Committee, Section on Federal Courts, American Association of
Law Schools, 1999-2004, 2014-present; chair, 2002 Member, Executive Committee, Section on Law and the Humanities, American
Association of Law Schools, 2015-present Member, Academic & Scientific Council, The Gender Equality Project, Switzerland,
2009-present Advisor, European Law Institute and International Institute for the Unification of Private
Law Project, From Transnational Principles to Rules of European Civil Procedure, 2015-2016 Member, Executive Session, State Courts in the Twenty-First Century, The Kennedy School, Harvard University, 2008-2011 Member, Advisory Group, Principles of the Law of Aggregate Litigation, American Law Institute, 2004-2009 Member, Standing Committee on Federal Judicial Improvements, American Bar Association, 2006-2010 (prior three-year term in the late 1990s); Chair, Academic Advisory Committee to the Standing Committee on Federal Judicial Improvements, American Bar Association, 2010-2014 Member, Editorial Board, Yale Journal of Law and Feminism Member, Editorial Advisory Board, Yale Journal of Law and the Humanities Member, Advisory Board, Journal of Law and Ethics of Human Rights Member, Advisory Board, Litigation and Procedure, and Negotiation and Dispute Resolution eJournals (Social Science Research Network, online) Member, Advisory Board, Women’s Studies Quarterly
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Other Activities Co-chair of the Board, Fansler Foundation, 2003-2014 Member, National Board of Academic Advisors for the William H. Rehnquist Center on the Constitutional Structures of Government, 2007-2009 Member, Advisory Board of the Science for Judges Project, Brooklyn Law School, 2003-2007 Board Member, Lawyers’ Committee for Civil Rights, 2004-2007 Liaison, American Association of Law Schools to the American Bar Association Commission on Women, 2000-2005 Member, Advisory Board of the Center for Judicial Process, Albany Law School, 2000-2004 Member, Editorial Board, Law and Social Inquiry, 1998-2004 Member, Committee on Diversity in Legal Education of the Section of Legal Education and Admissions to the Bar of the American Bar Association, 1996-2002 Consultant, RAND, Institute for Civil Justice, 1980-2002 Member, Editorial Board, The Justice System Journal Member, Board of Governors, Society of American Law Teachers, 1980-1997 Co-Chair, University of Southern California Feminist Council, 1990-1996 Member, Ninth Circuit Gender Bias Task Force, 1990-1994 Co-Chair, Robert M. Cover Memorial Public Interest Retreat, Society of American Law Teachers, 1988-1992 Member of and a general reporter for the International Association of Procedural Law, 1991 Conference Member, Planning Committee, ABA-AALS Conference on Women in Legal Education, 1990 Member, Advisory Panel to a Subcommittee of the Federal Courts Study Committee, 1989-1990 Member, Steering Committee for the Center for Feminist Research, University of Southern California, 1990-1994 Member, American Bar Association, Litigation Section, Federal Initiatives Task Force, 1991-1993 Chair, Section on Women in Legal Education, American Association of Law Schools, 1989 Member, Twentieth Century Fund Task Force on Judicial Responsibility, 1988-1989 Member, Board of ACLU of Southern California, 1985 Chair, Bryn Mawr College Centennial Campaign for Southern California, 1983-1985
Courses taught at Yale Law School, 1997-2020 Federal and State Courts in the Federal System Procedure Equality, Sovereignty and Citizenship (with Prof. Reva Siegel) Gender: Globally and Locally (with Prof. Vicki Jackson) Liman Workshops (topics and co-teachers vary yearly) Rationing Law: Subsidizing Access to Justice in Democracies Poverty and the Courts: Fines, Fees, Bail, and Collective Redress
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Who Pays? Fines, Fees, Bail, and the Cost of Courts Imprisoned Human Rights, Incarceration, and Criminal Justice Reform Moving Criminal Justice: Practices of Reform Incarceration Borders Rationing Law: Constitutional Entitlements to Courts in an
Era of Fiscal Austerity Abolition: Slavery, Supermax, and Social Movements Accessing Justice and Rights – From Streets to Prisons Community, Confinement, Labor, and Rights Equality, Punishment, and Incarceration Imprisoned Detention Federalism and Social Movements: Public Interest Lawyering
in Cities and States Citizenship Constitutional Law as Public Interest Law
Publications Books and Monographs
Fragile Futures and Resiliency: Litigating Climate Change, Judging Under Stress (coeditor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2019)
Ability to Pay (co-editors Anna VanCleave, Alexandra Harrington, Jeff Selbin, Lisa Foster, Joanna Weiss, Faith Barksdale, Alexandra Eynon, Stephanie Garlock, and Daniel Phillips, Arthur Liman Center for Public Interest Law Colloquium, 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3387647
Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes (editor, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018).
Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-inCell (co-author, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3264350
Global Reconfigurations, Constitutional Obligations, and Everyday Life (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2018)
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Who Pays? Fines, Fees, Bail, and the Cost of Courts (co-editors Anna VanCleave, Kristen Bell, Skylar Albertson, Natalia Friedlander, Illyana Green, and Michael Morse, Arthur Liman Center for Public Interest Law Colloquium, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165674
Reconstituting Constitutional Orders (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2017)
Aiming to Reduce Time-In-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms (co-author, Yale Law School Arthur Liman Public Interest Program and Association of State Correctional Administrators, 2016)
Rethinking ‘Death Row’: Variations in the Housing of Individuals Sentenced to Death (co-authors Celina Aldape, Ryan Cooper, Katie Haas, April Hu, Jessica Hunter, and Shellie Shimizu, Arthur Liman Public Interest Program, 2016), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874492
Acts of State, Acts of God (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2016)
Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (co-author, Yale Law School Arthur Liman Public Interest Program and Association for State Correctional Administrators, 2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655627
The Reach of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2015)
The Invention of Courts, Daedalus: Journal of the American Academy of Arts and Sciences (co-editor Linda Greenhouse, Summer 2014)
Isolation and Reintegration: Punishment Circa 2014 (co-editors Hope Metcalf and Megan Quattlebaum, Arthur Liman Public Interest Program Colloquium, 2014)
Sources of Law and of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2014)
Governments’ Authority (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2013)
Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (co-authors Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa
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Work, and Brian Holbrook , Arthur Liman Public Interest Program, 2013), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286861
Law’s Borders (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012)
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis, Yale University Press, 2011)
Federal Courts Stories (co-editor Vicki Jackson, Foundation Press, 2010)
Migrations and Mobilities: Citizenship, Borders, and Gender (co-editor Seyla Benhabib, New York University Press, 2009)
The Processes of the Law: Understanding Courts and Their Alternatives (Foundation Press, 2004)
Adjudication and Its Alternatives: An Introduction to Procedure (with Owen Fiss, Foundation Press, 2003)
The Effects of Gender: The Final Report of the Ninth Circuit Gender Bias Task Force (July 1993) (with The Hon. John C. Coughenour, The Hon. Proctor Hug, Jr., The Hon. Marilyn Patel, Terry W. Bird, Deborah R. Hensler, M. Margaret McKeown, and Henry Shields, Jr.), also reprinted in 67 Southern California Law Review 745 (1994)
Procedure (with Robert Cover and Owen Fiss, Foundation Press, 1988)
The Federal Procedural System: A Rule and Statutory Source Book (with Robert Cover and Owen Fiss, Foundation Press, 1988, 1989, 1991)
Chapters in Books Not Isolating Isolation, in Solitary Confinement: History, Effects, and Pathways to
Reform at 89-114 (Jules Lobel and Peter Scharff-Smith, eds., Oxford University Press, 2020)
Courts and Economic and Social Rights/Courts as Economic and Social Rights, in The Future of Economic and Social Rights at 259-286 (Katharine G. Young, ed., Cambridge University Press, 2019)
The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain) in Open Justice: The Role of Courts in a Democratic Society at at 177-252 (Burkhard Hess and Ana Koprivica, eds., Max Planck Institute, Luxembourg, Nomos, 2019)
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Judicial Methods of Mediating Conflicts: Recognizing and Accommodating Differences in Pluralist Legal Regimes, in Judicial Power: How Constitutional Courts Affect Political Transformations at 250-280 (Christine Landfried, ed., Cambridge University Press, 2019)
On Darkness and Light in Legal Imagination and in Practice, in The Dark Sides of the Law: Perspectives on Law, Literature, and Justice in Common Law Countries at 13-29 (Geraldine Gadbin-George, Yvonne-Marie Rogez, Armelle Sabatier, and Claire Wrobel, eds., Editions Michel Houdiard, 2019)
Bordering by Law: The Migration of Law, Crimes, Sovereignty, and the Mail, in Nomos LVII: Immigration, Emigration, and Migration, at 79-201 (Jack Knight, ed., New York University Press, 2017)
Why Eyes? Cautionary Tales from Law’s Blindfolded Justice (with Dennis E. Curtis), in Blinding as a Solution to Bias in Biomedical Science and the Courts: A Multidisciplinary Approach, at 227-247 (Aaron Kesselheim and Christopher Robertson, eds., Elsevier Press, 2016)
Constructing the “Foreign:” American Law’s Relationship to Non-Domestic Sources, in Courts and Comparative Law, at 437-471 (Mads Andrenas and Duncan Fairgrieve, eds., Oxford University Press, 2015)
Epistemological Doubt and Visual Puzzles of Sight, Knowledge, and Judgment: Reflections on Clear-Sighted and Blindfolded Justices (with Dennis E. Curtis), in Genealogies of Legal Vision, at 201-242 (Peter Goodrich and Valérie Hayaert, eds., London: Routledge, 2015)
Federalism(s)’s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations, in Nomos LV: Federalism and Subsidiarity, at 363-435 (James E. Fleming and Jacob T. Levy, eds., New York University Press, 2014)
Constructing Courts: Architecture, the Ideology of Judging, and the Public Sphere (with Dennis E. Curtis and Allison Tait), in Law, Culture & Visual Studies, at 547-572 (Richard K. Sherwin and Anne Wagner, eds., Springer Publishing Company, 2013)
“Hear the Other Side:” Miranda, Guantánamo, and Public Rights to Fairness and Dignity, in Law and the Quest for Justice, at 85-109 (Marjorie S. Zatz, Doris Marie Provine, and James P. Walsh, eds., Quid Pro Books, 2013)
Old and New Depictions of Justice: Reflections, Circa 2011, on Hill-Thomas, in I Still Believe Anita Hill, at 51-70 (Amy Richards and Cynthia Greenberg, eds., The Feminist Press, 2012)
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Changing the Climate: The Role of Translocal Organizations of Government Actors (TOGAs) in American Federalism(s), in Navigating Climate Change Policy: The Opportunities of Federalism, at 120-143 (Edella C. Schlager, Kirsten H. Engel, and Sally Rider, eds., The University of Arizona Press Tucson, 2011)
Sisterhood, Slavery and Sovereignty: Transnational Women’s Rights Movements from 1840 through the Beginning of the Twenty-first Century, in Women’s America: Seventh Edition, at 781-790 (Linda Kerber, Cornelia Hughes Dayton, and Jane De Hart, eds., Oxford University Press, 2010)
New Federalism(s): Translocal Organizations of Government Actors (TOGAs) Reshaping Boundaries, Policies, and Laws, in Why the Local Matters: Federalism, Localism, and Public Interest Advocacy, at 83-99 (published by the Liman Public Interest Program at Yale Law School, and the National State Attorneys General Program at Columbia Law School, 2010)
Managerial Judges, Jeremy Bentham and the Privatization of Adjudication, in Common Law, Civil Law and the Future of Categories, at 205-224 (Janet Walker and Oscar G. Chase, eds., LexisNexis Canada, 2010), also published in 49 S.C.L.R. (2d) 205 (2010)
What’s Federalism For?, in The Constitution 2020, at 269-284 (Jack Balkin and Reva Siegel, eds., Oxford University Press, 2009)
Judicial Independence, in Global Perspectives on Constitutional Law, at 15-33 (Vikram David Amar and Mark V. Tushnet, eds., Oxford University Press, 2008)
From “Rites” To “Rights” of Audience: The Utilities and Contingencies of the Public’s Role in Court-Based Processes (with Dennis E. Curtis) in Representation of Justice, at 195-236 (Antoine Masson and Kevin O’Connor, eds., P.I.E. - Peter Lang, 2007)
Sisterhood, Slavery, and Sovereignty: Transnational Antislavery Work and Women’s Rights Movements in the United States During the Twentieth Century, in Women’s Rights and Transatlantic Antislavery in the Era of Emancipation, at 1954 (Kathryn K. Sklar and James Brewer Stewart, eds., Yale University Press, 2007)
Gendered Borders and United States’ Sovereignty, in Women and Immigration Law: New Variations on Classical Feminist Themes, at 44-63 (S.K. Van Walsum and T. Spijkerboer, eds., Routledge-Cavendish Press, 2006)
Contracting Civil Procedure, in Law and Class in America: Trends Since the Cold
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War, at 60-86 (Paul Carrington and Trina Jones, eds., New York University Press, 2006)
Democratic Responses to the Breadth of Power of the Chief Justice, in Reforming the Court: Term Limits for Supreme Court Justices, at 181-200 (Paul D. Carrington and Roger C. Cramton, eds., Carolina Academic Press, 2006)
Composing a Judiciary: Reflections on Proposed Reforms in The United Kingdom on How to Change the Voices of and the Constituencies for Judging, in Constitutional Innovation: The Creating of A Supreme Court for the United Kingdom; Domestic, Comparative and International Reflections, A Special Issue of Legal Studies, at 228-252 (Derek Morgan, ed., LexisNexis, United Kingdom, 2004)
The Story of Goldberg: Why This Case Is Our Shorthand, in Civil Procedures Stories: An In-Depth Look at the Leading Civil Procedure Cases, at 473-508 (Kevin M. Clermont, ed., Foundation Press, 2004; 2nd ed., 2007)
Federalism(s), Feminism, Families, and the Constitution, in Women and the United States Constitution: History, Interpretation, and Practice, at 127-152 (Sybil A. Schwarzenbach and Patricia Smith, eds., Columbia University Press, 2004)
The Rights of Remedies: Collective Accountings for and Insuring Against the Harms of Sexual Harassment in Directions in Sexual Harassment Law, at 247-271 (Reva Siegel and Catherine MacKinnon, eds., University Press, 2004)
Civil Processes, in Oxford Handbook of Legal Studies, at 478-772 (Peter Cane and Mark Tushnet, eds., Oxford Press, 2003)
Women, Meeting (Again), In and Beyond the United States, Afterword to The Difference Difference Makes: Women and Leadership, at 203-216 (Deborah L. Rhode, ed., Stanford University Press, 2003)
Procedure: Legal Aspects (Vol.18), in International Encyclopedia of the Social & Behavioral Sciences, at 12136-12141 (Neil J. Smelser and Paul B. Baltes, eds., Elsevier Press, 2001)
Contested Identities: Task Force on Gender, Race, and Ethnic Bias and the Obligations of the Legal Profession (with Deborah Hensler) in Ethics in Practice, Lawyers’ Roles, Responsibilities, and Regulation, at 240-263 (Deborah L. Rhode, ed., Oxford University Press, 2000)
Federal Judicial Role (Vol. III); Single-Sex Education (Vol. V); Procedural Due Process Civil (Update I, Vol. IV), in The Encyclopedia of the American Constitution, 2nd
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edition, (Leonard Levy, Kenneth L. Karst, Adam Winkler, Dennis J. Mahoney, and John G. West, Jr., eds., Macmillan, 2000)
Singular and Aggregate Voices: Audiences and Authority in Law & Literature and in Law & Feminism, in Law and Literature: Current Legal Issues, Vol. II, at 687727 (Michael Freeman and Andrew D. E. Lewis, eds., Oxford University Press, 1999)
Foreword (with Carolyn Heilbrun) to Beyond Portia: Women, Law & Literature in the United States, at 11-52 (Jacqueline St. Joan and Annette Bennington McElhiney, eds., Northeastern University Press, 1997)
Procedure, in Looking at Law School, at 177-195 (Stephen Gillers, ed., Penguin Books, NY, 4th ed., 1997; 3rd ed., 1990)
From the Senate Judiciary Committee to the County Courthouse: The Relevance of Gender, Race, and Ethnicity to Adjudication, in Race, Gender, and Power in America, The Legacy of the Hill-Thomas Hearings, at 177-227 (Anita Hill and Emma Jordan, eds., Oxford Press, 1995)
Gender in the Courts: The Task Force Reports, in The Woman Advocate, Excelling in the 90’s, at 3-38 (Jean Maclean Snyder and Andra Barmash Greene, eds., Prentice Hall Law & Business, 1995)
Finding the Factfinders, in Verdict: Assessing the Civil Justice System, at 500-530 (Robert E. Litan, ed., Brookings, May 1993)
Independent and Inter-dependent: The Ninth Circuit and the Federal Judiciary, in Restructuring Justice, at 321-330 (Arthur Hellman, ed., Cornell Press, 1990)
The Perception of Justice: Tort Litigants’ Views of Trial, Court-Annexed Arbitration, and Judicial Settlement Conferences (with E. Allan Lind, Robert MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), The RAND Corporation, Institute for Civil Justice (1989)
Should Prisoners Be Classified by Sex?, in Criminal Corrections: Ideals and Realities, at 109-123 (J. Doig, ed., Mass: Lexington Books, Fall 1982)
Discrimination in Education, Chapter XXVIII in Dorsen, Bender, Neuborne, and Law, in Political and Civil Rights in the United States, at 107-173 (Little Brown, 1979, Supplement, 1981)
Prisoners of Their Sex: Health Problems of Incarcerated Women (with Nancy Shaw) in Prisoners’ Rights Sourcebook: Theory, Practice, and Litigation, Vol. II, at 319-
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413 (Ira Robbins, ed., N.Y.: Clark Boardman, 1980, reprinted in 3 Prison Law Monitor 57-58, March 1981)
Federal Prisoners’ Access to Federal Courts: Jurisdiction and Related Procedural Matters, Prisoners Rights, at 85-158 (N.Y.: PLI, 1979)
Undelivered Care: The Incapacitated and the Mentally Ill New York City Defendant, A Report to the Mayor's Criminal Justice Coordinating Council (August 1973) (co-authored)
Articles Constituting Security and Fairness: Reflecting on Charles Reich’s Imagination and
Impact, 129 Yale Law Journal Forum 707 (2020)
Inability to Pay: Court Debt Circa 2020 (with David Marcus), 98 North Carolina Law Review 361 (2020)
(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” 129 Yale Law Journal Forum 365 (2020)
Book Review: The Challenges of Engaging “The Art of Law: artistic representations and iconography of law and justice in context, from the middle ages to the first world war,” in 7 Comparative Legal History 239 (2019)
Sentencing Inside Prisons: Efforts to Reduce Isolating Conditions (with Kristen Bell), 87 University of Missouri Kansas City Law Review 133 (2018)
A2J/A2K: Access to Justice, Access to Knowledge, Economic Inequalities, and Open Courts and Arbitrations, 96 North Carolina Law Review 605 (2018)
Reorienting the Process Due: Using Jurisdiction to Forge Post-Settlement Relationships Among Litigants, Courts, and the Public in Class and Other Aggregate Litigation, 92 New York University Law Review 1017 (2017)
“Vital” State Interests: From Representative Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in the Federal Courts, 165 University of Pennsylvania Law Review 1765 (2017)
Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes, 85 Fordham Law Review 1899 (2017)
Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s), 17 Jus Politicum 209 (2017)
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“Within Its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proceedings of the American Philosophical Society 117 (2016)
Revising Our “Common Intellectual Heritage”: Federal and State Courts in Our Federal System, 91 Notre Dame Law Review 1831 (2016)
Time-In-Cell: Isolation and Incarceration (with Sarah Baumgartel and Johanna Kalb), 125 Yale Law Journal Forum (2016); http://www.yalelawjournal.org/forum/time-in-cell-isolation-and-incarceration
The Contingency of Openness in Courts: Changing the Experiences and Logics of Publics’ Role in Court-Based ADR, 15 Nevada Law Journal 1631 (2015)
Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale Law Journal 2804 (2015); published in Portuguese in Grandes Temas do Novo CPC: Justiça Multiportas: Mediação, Conciliação, Arbitragem e Outros Meios de Solução Adequada Para Conflitos (DIDIER JR., Fredie; ZANETI JR., Hermes; CABRAL, Tricia Xavier Navarro eds., Salvador: JusPodvim, 2016))
Reinventing Courts as Democratic Institutions, Daedalus: Journal of the American Academy of Arts and Sciences 9 (Summer 2014)
The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure at 75, 162 University of Pennsylvania Law Review 1793 (2014)
Inventing Democratic Courts: A New and Iconic Supreme Court (with Dennis E. Curtis), 38 Journal of Supreme Court History 207 (2013)
Gideon at Guantánamo: Democratic and Despotic Detention (with Hope Metcalf), 122 Yale Law Journal 2504 (2013)
Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (with Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa Work, and Brian Holbrook) (2013)
The Democracy in Courts: Jeremy Bentham, ‘Publicity’, and the Privatization of Process in the Twenty-First Century, NoFo 10 (2013)
Globalization(s), privatization(s), constitutionalization and statization: Icons and experiences of sovereignty in the 21st century, 11 International Journal of Constitutional Law (I·CON) 162 (2013)
Equality’s Frontiers: Courts Opening and Closing, 122 Yale Law Journal
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Online 243 (2013)
Opening the Door: Ruth Bader Ginsburg, Law’s Boundaries, and the Gender of Opportunities, 25 Columbia Journal of Gender and Law 81 (2013)
Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: The Childress Lecture, 56 St. Louis University Law Journal 916 (2012)
Comparative (In) equalities: CEDAW, the jurisdiction of gender, and the heterogeneity of transnational law production, 10 International Journal of Constitutional Law (I·CON) 531 (2012)
Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices Taft, Warren, and Rehnquist, 87 Indiana Law Journal 823 (2012)
Re-Presenting Justice: Visual Narratives of Judgment and the Invention of Democratic Courts (with Dennis E. Curtis), 24 Yale Journal of Law and the Humanities 19 (2012)
Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harvard Law Review 78 (2011)
The Production and Reproduction of Constitutional Norms, 35 New York University Review of Law & Social Change 226 (2011)
Bring Back Bentham: “Open Courts,” “Terror Trials,” and Public Sphere(s), 5 Law & Ethics of Human Rights 226 (2011)
Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers’ Powers, 79 George Washington Law Review 628 (2011)
Reading Reinhardt: The Work of Constructing Legal Virtue (Exempla Iustitiae), 120 Yale Law Journal 539 (2010)
Kyoto at the Local Level: Federalism and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 40 Environmental Law Reporter 10768 (2010)
Detention, The War on Terror, and the Federal Courts, 110 Columbia Law Review 579 (2010)
The Internationalism of American Federalism: Missouri and Holland (Earl F. Nelson Memorial Lecture), 73 Missouri Law Review 1105 (2009)
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Courts: In and Out of Sight, Site, and Cite, 53 Villanova Law Review 771 (2008)
Interdependent Federal Judiciaries: Puzzling about Why and How to Value the Independence of Which Judges, Daedalus 28 (2008)
Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 50 Arizona Law Review 709 (2008)
Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards” of Aggregate Translocal Actions, 156 University of Pennsylvania Law Review 1929 (2008)
Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State, 6 International Journal of Constitutional Law (I·CON) 33 (2008)
Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 Emory Law Journal 31 (2007)
Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses (with Dennis E. Curtis), Henry la Barre Jayne Lecture, 151 Proceedings of the American Philosophical Society 139 (2007)
Roscoe Pound Round-Table Discussion, in Conference of Chief Justices and Council on State Court Administrators Symposium, 82 Indiana Law Journal 1157 (2007)
No Daubert Hearing Necessary: The Extraordinary Expertise of Margaret Berger, 16 Journal of Law and Policy 6 (2007)
Whither and Whether Adjudication?, 86 Boston University Law Review 1101 (2006)
Uncovering, Disclosing, and Discovering How the Public Dimensions of CourtBased Processes Are at Risk, 81 Chicago-Kent Law Review 521 (2006)
Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States (with Lane Dilg), 154 University of Pennsylvania Law Review 1575 (2006)
Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 Yale Law Journal 1564 (2006)
Living Their Legal Commitments: Paideic Communities, Courts and Robert Cover, 17 Yale Journal of Law & the Humanities 17 (2005)
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Procedure as Contract, 80 Notre Dame Law Review 593 (2005)
Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo Law Review 579 (2005)
Procedure’s Projects, 23 Civil Justice Quarterly 273 (2004)
Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 3 Journal of Empirical Legal Studies 783 (2004)
Tribes, Wars, and the Federal Courts: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts’ Criminal Jurisdiction, 36 Arizona State Law Journal 77 (2004)
The Independence of the Federal Judiciary, in Proceedings of the American Academy of Arts and Sciences, 17 Bulletin 22 (2004)
For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 University of Miami Law Review 173 (2003)
A Continuous Body: Ongoing Conversations About Women and Legal Education, 53 Journal of Legal Education 564 (2003)
Of Courts, Agencies, and the Court of Federal Claims: Fortunately Outliving One’s Anomalous Character, 71 George Washington Law Review 798 (2003)
Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty (with Julie Suk), 55 Stanford Law Review 1921 (2003)
Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Indiana Law Journal 223 (2003)
Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction, 14 Yale Journal of Law and Feminism 393 (2002)
Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement, 2002 University of Missouri-Columbia Journal of Dispute Resolution 155 (2002)
Teaching Billing: Metrics of Value in Law Firms and Law Schools (with Dennis E. Curtis), 54 Stanford Law Review 1409 (2002)
“Uncle Sam Modernizes His Justice”: Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 Georgetown Law Journal 607 (2002)
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Remarks, Bicentennial Celebration for the Courts of the District of Columbia Circuit, 204 Federal Rules of Decision 499 (2002)
Grieving Criminal Defense Lawyers (with Dennis E. Curtis), 70 Fordham Law Review 1615 (2002)
Engendering Democracy through Understanding Federal Family Law, 11 The Good Society (A PEGS Journal) 79 (2002)
Tribute to Norman Dorsen, 58 Annual Survey of American Law 29 (2001)
Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 Yale Law Journal 619 (2001)
Procedure: Legal Aspects, 18 International Encyclopedia of the Social & Behavioral Sciences (eds. Neil Smelser and Paul Baltes) 12136 (2001)
The Modernity of Judging: Judicial Independence and the 20th Century United States Federal Courts, presented at The 1701 Conference, Vancouver, British Columbia, Canada, May 9-11, 2001, on the 300th anniversary of the 1701 Act of Settlement
The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act, 74 Southern California Law Review 269 (2000)
Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 University of Pennsylvania Law Review 2119 (2000)
Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harvard Law Review 924 (2000)
Judicial Independence and Article III: Too Little and Too Much, 72 Southern California Law Review 657 (1999)
Legal Services: Then and Now (with Emily Bazelon), 17 Yale Law & Policy Review 292 (1998)
The Federal Courts and Congress: Additional Sources, Alternative Texts, and Altered Aspirations, 86 Georgetown Law Journal 2589 (1998)
“The Federal Courts”: Constituting and Changing the Topic, 32 University of Richmond Law Review 603 (1998)
On the Margin: Humanities and Law, 10 Yale Journal of Law and the
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Humanities 413 (1998)
Contingency Fees in Mass Torts: Access, Risk and the Provision of Legal Services When Layers of Lawyers Work for Individuals and Collectives of Clients (with Dennis E. Curtis), 47 DePaul Law Review 425 (1998)
Changing Practices, Changing Rules: Judicial and Congressional Rulemaking in Civil Juries, Civil Justice, and Civil Judging, in a Symposium, Evaluation of the Civil Justice Reform Act, 49 Alabama Law Review 133 (1997); also published in Canadian Institute for the Administration of Justice, The Administration of Justice in Commercial Disputes 149 (1997)
Litigating and Settling Class Actions: The Prerequisites of Entry and Exit, 30 U.C. Davis Law Review 835 (1997)
Afterword: Federalism’s Options, Symposium Issue: Yale Law & Policy Review/Yale Journal on Regulation 465 (1996)
Changing the Topic, 7 The Australian Feminist Law Journal 95 (1996); also published in 8 Cardozo Studies in Law and Literature 339 (Fall/Winter 1996)
Asking About Gender in Courts, 21 Signs: Journal of Women in Culture and Society 952 (Summer 1996)
Individuals Within the Aggregate: Relationships, Representation, and Fees (with Dennis E. Curtis and Deborah Hensler), 71 New York University Law Review 296 (1996)
History, Jurisdiction, and the Federal Courts: Changing Contexts, Selective Memories, and Limited Imagination, 98 West Virginia Law Review 171 (1995)
Sentencing Women, 8 Federal Sentencing Reporter 134 (1995)
Aggregation, Settlement, and Dismay, 80 Cornell Law Review 918 (1995)
Procedural Innovations, Sloshing Over: A Comment on Deborah Hensler, A Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, 73 Texas Law Review 1627 (1995)
Multiple Sovereignties: Indian Tribes, States, and the Federal Government, 79 Judicature 118 (1995)
Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio State Journal on Dispute Resolution 211 (1995)
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Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA Law Review 1471 (1994); also published by RAND, Institute for Civil Justice (1995).
National Courts: Imagining Alternatives to State and Federal Courts, Southern California Law Review 2 (Spring 1995)
Rereading “The Federal Courts:” Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 Vanderbilt Law Review 1021 (1994)
The Future of Civil Litigation: A Panel Discussion in Symposium, Reinventing Civil Litigation: Evaluating Proposals for Change, 59 Brooklyn Law Review 1199 (1994)
Ambivalence: The Resiliency of Legal Culture in the United States, 45 Stanford Law Review 1525 (1993)
Gender Bias: From Classes to Courts, 45 Stanford Law Review 2195 (1993)
Revising the Canon: Feminist Help in Teaching Procedure, Introduction to a Symposium, 61 University of Cincinnati Law Review 1181 (1993)
Hearing Women, 65 Southern California Law Review 1333 (1992)
“Naturally” Without Gender: Women, Jurisdiction, and the Federal Courts, 66 New York University Law Review 1682 (1991)
Visible on Women’s Issues, 77 Iowa Law Review 41 (1991)
From “Cases” to “Litigation,” 54 Law and Contemporary Problems 5 (1991); also published by RAND, Institute for Civil Justice (1991)
Housekeeping: The Nature and Allocation of Work in the Federal Trial Courts, 24 Georgia Law Review 909 (1990)
In the Eye of the Beholder: Tort Litigants’ Evaluations of their Experiences in the Civil Justice System (with E. Allan Lind, Robert J. MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), 24 Law & Society Review 953 (1990); related monograph, The Perception of Justice; also published by RAND, Institute for Civil Justice (1989)
Feminism and the Language of Judging, 22 Arizona State Law Journal 31 (1990)
Changing Criteria for Judging Judges, 84 Northwestern University Law Review 889 (1990)
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Convergences: Law, Literature, and Feminism (with Carolyn Heilbrun), 99 Yale Law Journal 1913 (1990)
Constructing the Canon, 2 Yale Journal of Law and the Humanities 221 (Winter 1990) Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 University of
Chicago Law Review 671 (1989) Complex Feminist Conversations, University of Chicago Legal Forum 1 (1989) The Domain of Courts, 137 University of Pennsylvania Law Review 2219 (1989) On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 Southern
California Law Review 1877 (1988) The Limits of Parity in Prison, 13 Journal of the National Prison Project 26 (1987) Due Process: A Public Dimension, in Conference on Procedural Due Process: Liberty
and Justice, 39 University of Florida Law Review 405 (1987) Judging Consent, University of Chicago Legal Forum 43 (1987) Images of Justice (with Dennis E. Curtis), 96 Yale Law Journal 1727 (1987) Failing Faith: Adjudicatory Procedure in Decline, 53 University of Chicago Law Review
494 (1986); also published by RAND, Institute for Civil Justice (1986) The Declining Faith in the Adversary System, 13 Litigation 3 (1986) The Mythic Meaning of Article III Courts, 56 University of Colorado Law
Review 581 (1985) Precluding Appeals, 70 Cornell Law Review 603 (1985) Managerial Judges: The Potential Costs, in Symposium, Law and Public Affairs,
45 Public Administration Review 686 (Special Issue, November 1985) Tiers, 57 Southern California Law Review 837 (1984) Commentaries on Prisoner Litigation, 9 Justice System Journal 347 (Winter 1984) The Assumptions Remain, 23 Judges’ Journal 37 (Fall 1984)
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Managerial Judges and Court Delay: The Unproven Assumptions, 23 Judges’ Journal 8 (Winter 1984)
Book Review of The Brandeis/Frankfurter Connection, 71 California Law Review 776 (1983)
Managerial Judges, 96 Harvard Law Review 374 (1982); also published by RAND, Institute for Civil Justice (1982)
Patients’ Rights: Disclosure, Consent, and Capacity (with Nikki Heidepriem), 1973/1974 Annual Survey of American Law 87
Selected Commentary in Newspapers, Magazines, and Journals Protecting Prisoners in Pandemics Is a Constitutional Must, Bloomberg.com, March 30, 2020, https://news.bloomberglaw.com/health-law-and-business/insightprotecting-prisoners-in-pandemics-is-a-constitutional-must
Degrading strip search of 200 women prisoners cries out for courts to act, CNN.com, October 3, 2019, https://www.cnn.com/2019/10/03/opinions/women-prisonershave-rights-resnik/index.html
This Question Changed the Face of the Supreme Court, CNN.com, September 25, 2018; http://www.cnn.com/2018/09/25/opinions/anita-hill-patsy-mink-changed-howwe-see-kavanaugh-judith-resnik/index.html
The Supreme Court’s Arbitration Ruling Undercuts the Court System, HuffPost, May 25, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-forcedarbitration_us_5b08395ae4b0802d69caeb47?1s
To Help #MeToo Stick, End Mandatory Arbitration, HuffPost, January 23, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-mandatoryarbitration_us_5a65fc39e4b0e5630071c15d?g9r
Arbitration Cuts the Public Out and Limits Redress, National Law Journal, August 22, 2016; http://www.nationallawjournal.com/id=1202765654457/ Arbitration-Cuts-the-Public-Out-and-Limits-Redress?slreturn=20160914112502
With One Decision, Obama and Lynch Could Reshape the Criminal Justice System (with Robert Ferguson and Margo Schlanger), The Washington Post online, August 3, 2015; https://www.washingtonpost.com/posteverything/wp/2015/08/03/with-onedecision-obama-could-totally-reform-the-criminal-justice-system/
No Fast Track for Unfair Trade Deals (with Amy Kapczynski), HuffPost Politics, June 11, 2015; http://www.huffingtonpost.com/amy-kapczynski/tpp-isds-no-fast-trackfor-unfair-trade-deals_b_7562084.html?1434041001
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Can Less Confidentiality Mean More Fairness in Campus Sexual Assault Cases? (with Alexandra Brodsky and Claire Simonich), The Nation, February 23, 2015; http://www.thenation.com/article/198713/can-less-confidentiality-mean-morefairness-campus-sexual-assault-investigations
Renting Judges for Secret Rulings, The New York Times, February 28, 2014; http://www.nytimes.com/2014/03/01/opinion/renting-judges-for-secretrulings.html?ref=todayspaper
The Return of the Terrible Plan to Ship Female Inmates from the Northeast to Alabama, Slate, October 4, 2013; http://www.slate.com/blogs/xx_factor/2013/10/04/female_inmates_in_federal_pri son_must_give_up_their_beds_to_men_and_move.html
Keep Female Prisoners Close to Family (with Nancy Gertner), The Boston Globe, September 3, 2013; http://www.bostonglobe.com/opinion/2013/09/03/keepfemale-prisoners-close-family/eQf4dCawmOGmQ41Ap53GxL/story.html
Harder Time: Why are the federal prison beds for women in the Northeast going to men—while the women get shipped to Alabama?, Slate, July 25, 2013; http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/women_i n_federal_prison_are_being_shipped_from_danbury_to_aliceville.html
How “Robust” is Appellate Review of Courts-Martial? (with Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan, Stephen A. Saltzburg and Kate Stith) (2013), Balkinization; http://balkin.blogspot.com/2013/05/how-robust-is-appellatereview-of.html
Abolish the Death Penalty and Supermax, Too: Updating the Ban Against Cruel and Unusual Punishment (with Jonathan Curtis-Resnik), Slate, June 18, 2012; http://www.slate.com/authors.judith_resnik_and_jonathan_curtisresnik.html
War, Terror, and the Federal Courts, Ten Years After 9/11 – Conference (a discussion with Judge Brett Kavanaugh, Martin Lederman, Sarah Cleveland, Curt Bradley, and Stephen Vladeck), from the 2012 Annual Meeting of the Association of American Law Schools, 61 American University Law Review 1253 (2012)
A Collective Collage: Women, the Structure of American Legal Education, and Histories Yet to be Written (with Dennis E. Curtis), 80 University of Missouri Kansas City Law Review 737 (2012)
The Changing Face of Justice: The Visual Vocabulary of Courts is a Transnational Symbol of Government (with Dennis E. Curtis), The Guardian, March 24, 2011; http://www.guardian.co.uk/law/2011/mar/24/changing-face-justice-judith-resnik
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Designing Justice (with Dennis E. Curtis), Los Angeles Daily Journal, January 21, 2011. What Does Justice Look Like? (with Dennis E. Curtis), Slate, January 21, 2011; http://www.slate.com/id/2281277/
From Fool’s Blindfold to the Veil of Ignorance (with Dennis E. Curtis), Yale Law Report (Winter 2011)
Object Lesson: On and Off Her Pedestal (with Dennis E. Curtis), Yale Alumni Magazine (November/December 2010)
Citizenship for the 21st Century: A Conversation with Seyla Benhabib and Judith Resnik, 38 Women Studies Quarterly 271 (Spring/Summer 2010)
Drafting, Lobbying, and Litigating VAWA: National, Local, and Transnational Interventions on Behalf of Women’s Equality, 11 Georgetown Journal of Gender and the Law 557 (2010)
Open the Door and Turn on the Lights, Slate, May 21, 2010; http://www.slate.com/id/2253500/
Judicial Independence, Panel Discussion, Sandra Day O’Connor, Linda Greenhouse, Judith Resnik, Bert Brandenburg, and Viet D. Dinh, Bulletin of the American Academy 29 – 56 (Winter 2009)
There’s a New Lawyer in Town (with Emily Bazelon), Slate, February 9, 2009; http://www.slate.com/id/2210637/
Revival of Justice, Slate, January 6, 2009; http://www.slate.com/id/2208017/
Translocal Transnationalism: Foreign and Domestic Affairs, 102 American Society of International Law Proceedings 214 (2008)
Sitting on Great Judges (with Emily Bazelon), Slate, December 19, 2008; http://www.slate.com/id/2207071/
The Return of Regency (with Allison Tait), The XX Factor, September 11, 2008, guest post; http://www.slate.com/blogs/blogs/xxfactor/archive/2008/09/11/the-returnof-regency.aspx
Courts and Democracy: The Production and Reproduction of Constitutional Conflict in The Courts and Social Policy in the United States (Oxford: Foundation for Law, Justice and Society, 2008); http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1148202
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Moving American Mores: From Women’s Education to Torture, 36 Women Studies Quarterly 339 (Spring/Summer 2008)
When the Justice Department Played Defense, Slate, October 27, 2006; http://www.slate.com/id/2152211/
Borders, Law, and Doors – Opening, Bryn Maw College Convocation, May 2006
Opening the Door: Court Stripping: Unconscionable and Unconstitutional? Slate, February 1, 2006; http://www.slate.com/articles/news_and_politics/jurisprudence/2006/02/opening_ the_door.html
So Long: Changing the Judicial Pension System Could Keep Judges from Staying on the Bench for Too Many Years, July/August Legal Affairs 20 (2005)
One Robe, Two Hats (with Theodore Ruger), New York Times, Op-Ed, Section 4 at 13, July 17, 2005
Looking Back, Looking Forward: One Hundred Years, Concluding Remarks in Women Faculty Forum, Gender Matters: Women and Yale in its Third Century (2004)
The Courts, the Legislature, and the Executive: Separate and Equal? Issues at the Federal Level, 87 Judicature 220 (2004)
Judicial Selection, Independent Jurists, and Life-Tenure (2004); http://www.jurist.org/forum/symposium-jc/resnik.php
At Home and Work, Still a Man’s World, Commentary (with Emily Bazelon), Los Angeles Times, January 2, 2004
Engendering Equality: A View from the United States, 35 The European Lawyer 21, (February 2004)
Supermajority Rule, New York Times, Op-Ed, Section A at 31, June 11, 2003
Testimony Statement submitted for the record, Women in Prison: Seeking Justice Behind Bars, before the U.S. Commission on Civil Rights, March 22, 2019, 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-inPrison.pdf
Comments submitted on Proposed Changes to Code of Conduct for U.S. Judges and Judicial Conduct and Disability Rules (with Abbe R. Gluck), submitted to the
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Judicial Conference committees on Codes of Conduct and Judicial Conduct and Disability, November 13, 2018
Comments submitted for the Telephonic Hearing on Proposed Amendments to the Federal Rules of Civil Procedure before the Advisory Committee on Civil Rule of the Judicial Conference of the United States, February 16, 2017
Statement submitted for the record, Women in Detention: The Need for National Reform, Charles Colson Task Force on Federal Corrections Public Hearing, Washington, D.C., March 11, 2015
Statement submitted for the record, Women in Detention: The Need for a National Agenda, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, December 9, 2014
The Policies Governing Isolation in U.S. Prisons, Statement submitted for the Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, Reassessing Solitary Confinement II: The Human Rights, Fiscal and Public Safety Consequences, February 25, 2014; http://www.law.yale.edu/documents/pdf/Liman/Liman_Senate_Statement_Reasse ssing_Solitary_Confinement--_Resnik_Metcalf_--_final_Feb_28_2014.pdf
Statement submitted for the record, Oversight of the Bureau of Prisons and CostEffective Strategies for Reducing Recidivism, Hearing before the Senate Judiciary Committee, U.S. Senate, November 13, 2013; http://www.law.yale.edu/documents/pdf/Liman/Senate_Judiciary_Committee_BO P_Oversight_Hearing_Liman_Statement_for_the_Record_
Statement submitted for the record, Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, U.S. Senate, June 19, 2012
Courtroom Use: Access to Justice, Effective Judicial Administration and Courtroom Security, Hearing before the Subcommittee on Courts and Competition Policy of the United States Committee on the Judiciary, U.S. House of Representatives, September 24, 2010
Statement submitted for the record, Recommendations on Courthouse Construction, Courtroom Sharing and Enforcing Congressionally Authorized Limits on Size and Cost, Hearing before the Subcommittee on Economic Development, Public Buildings and Emergency Management Committee on Transportation and Infrastructure, U.S. House of Representatives, May 21, 2010
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Statement submitted for the record, Sunshine in Litigation Act: Does Court Secrecy Undermine Public Health and Safety, Hearing before the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the Judiciary, 110th Cong. 181, December 11, 2007
Hearings on the Judicial Nomination of John G. Roberts, Jr., to be Chief Justice of the United States, held by the Committee on the Judiciary of the United States Senate, Washington, D.C., September 15, 2005
Hearings on the Judicial Selection before the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, held by the House of Commons, Ottawa, Canada, April 20, 2004
Hearings on the Proposed Amendments to Federal Rule of Civil Procedure 23, held by the Committee on Rules of Practice and Procedure, Judicial Conference of the United States, January 2002
Hearings on the Senate's Role in the Nomination and Confirmation Process: Whose Burden?, held by the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, 107th Cong. , September 4, 2001, also published in 50 Drake Law Review 539 (2001-02)
Hearings on the Proposed Amendment to Federal Rule of Civil Procedure 23, held by the Committee on the Rules of Practice and Procedure, Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, November 1996
Hearings on the Proposed Long Range Plan of the Judicial Conference of the United States, held by the Committee on Long Range Planning, December 16, 1994
Hearings on the Proposed Changes in the Federal Rules of Civil Procedure, held by the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference, November 1991
Hearings on the Tentative Report of the Federal Courts Study Committee, held by members of the Committee, San Diego, California, January 29, 1990
Hearings on the Proposed Amendments to Rule 63 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, January 1990
Hearings on the Confirmation of Robert H. Bork to be an Associate Justice of the United States Supreme Court, held by the Committee on the Judiciary, United States Senate, September 25, 1987
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Hearings on Proposed Amendments to Rule 52(a) of the Federal Rules of Civil Procedure, held by the Subcommittee on Criminal Justice of the Judiciary Committee of the U.S. House of Representatives, June 26, 1985
Hearings on Proposed Amendments to Rule 68 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1985
Hearings on Proposals to Amend the Rules Governing Section 2254 Cases in the United States District Courts, and Rules Governing Section 2255 Proceedings in the United States District Courts, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1984
Female Offender: 1979-80, Part 1: Hearings before the Subcommittee on Courts, Civil Liberties, and Administration of Justice of the House Committee. on Judiciary, 96th Cong. 59, October 11, 1979
Drug Abuse Treatment: Part 2: Hearings before the Select Committee on Narcotics Abuse and Control, House of Representatives, 96th Cong., July 25, 1978
Honors and Awards Andrew Carnegie Fellowship, 2018-2020
Honorary Doctorate of Laws, University College London, 2018
Visiting Scholar, Max Planck Institute for Procedural Law, Luxembourg, February 2018 Establishment of the Resnik-Curtis Fellowship in Public Interest Law on the 20th
anniversary of the Liman Program at Yale, 2017
Visiting Scholar, Phi Beta Kappa, 2014-2016
Recipient, Arabella Babb Mansfield Award, National Association of Women Lawyers, July 2013
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis) Selected as one of the “Best legal reads of 2011” by The Guardian Recipient, SCRIBES Award from the American Society of Legal Writers, 2012 Recipient, PROSE Award, Excellence in Social Sciences, 2012 PROSE Award, Excellence in Law & Legal Studies, 2012
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Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2012
Recipient, The Order of the Coif Biennial Book Award, January 2014 New York University Alumna of the Month Award, June 2012,
http://www.law.nyu.edu/alumni/almo/pastalmos/2011-12almos/judithresnikjune Elizabeth Hurlock Beckman Award, Awarded to Outstanding Faculty in Higher
Education in the Fields of Psychology or Law, Columbia University, March 2011 Migrations and Mobilities: Citizenship, Borders, and Gender, Selected as an Outstanding
Academic Title of the Year by Choice Magazine, January 2011 Outstanding Scholar of the Year Award 2008, from the Fellows of the American Bar
Foundation Oral History, 2007, Women Trailblazers in the Law Project, American Bar Association
Commission on Women in the Profession, deposited in the Library of Congress, 2009 Convocation Speaker, Bryn Mawr College Commencement, May 2006 Member, American Philosophical Society, elected Spring 2002 Fellow, American Academy of Arts and Sciences, elected Spring 2001 Recipient, Margaret Brent Women Lawyers of Achievement Award, American Bar Association Commission on Women in the Profession, August 1998 Recipient, NYU School of Law, Legal Teaching Award, Spring 1995 Recipient, USC Associates Award for Creativity in Research, Spring 1994 Recipient, Florence K. Murray Award, National Association of Women Judges, Fall 1993 Recipient, “Big Splash Award” from the Program of Women and Men in Society (SWMS), University of Southern California, 1992 Member, Phi Kappa Phi, elected by the USC Chapter, 1991 University Scholar, University of Southern California, 1982-1983 Recipient, Student Bar Association Outstanding Faculty Award, University of Southern California Law Center, 1982-1983
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Arthur Garfield Hays Fellow, 1974-1975, New York University
Education Bryn Mawr College, B.A., cum laude, 1972 New York University School of Law, J.D., cum laude, 1975
Bar Memberships Connecticut United States District Courts: District of Connecticut, Southern District of New York, Eastern District of New York United States Court of Appeals for the First, Second, Third, Fourth, Ninth and Eleventh Circuits United States Supreme Court
Selected Litigation United States Supreme Court Of counsel on Brief of Amici Curiae, Law Professors in Support of Petitioners (No. 18622), on Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit, Whole Woman’s Health, et. al. v. Texas Catholic Conference of Bishops (2018) (on the question of standing)
Of counsel on Brief of Amici Curiae, Former Judges, Former Prosecutors, Former Government Officials, Law Professors, and Social Scientists in Support of Respondents (No. 17-312), United States of America v. Sanchez-Gomez 138 S.Ct. 1532 (2018) (on the use of shackles for defendants in federal court)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Respondents (Nos. 161436 and 16-1540), Donald J. Trump, et al. v. International Refugee Assistance Project, et al, Donald J. Trump, et al. v. State of Hawaii, et al. (2017), 138 S.Ct. 2392 (2018) (on travel bans)
Of counsel on Brief of Amici Curiae, Constitutional Law, Federal Courts, Citizenship, and Remedies Scholars in Support of Respondent Luis Ramon Morales-Santana (No. 15-1191), Lynch v. Morales-Santana, 136 S.Ct. 2545 (2016) (on citizenship and gender)
Oral Argument and brief presented on behalf of the Respondent Norman Carpenter in Mohawk Industries, Inc. v. Carpenter (No. 08-678, 2009 WL 3169419) (argued October 5), 558 U.S. 100 (2009) (on appealability)
Of counsel on Brief of Law Professors as Amici Curiae, in Support of Respondent Jacob Denedo (No. 08-267, 2009 WL 418793), United States v. Denedo, 556 U.S. 904 (2009) (on jurisdiction)
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Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of Federal Jurisdiction, in Support of Petitioner Keith Haywood (No. 07-10374), Haywood v. Drown, 556 U.S. 729 (2009) (on state law and Section 1983)
Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of the Federal Courts, in Support of the Habeas Petitioners Omar and Munaf (Nos. 07394, 06-1666), Munaf v. Geren, 553 U.S. 674 (2008) (on the scope of habeas corpus)
Of counsel on Brief of Professors of Constitutional Law and of the Federal Jurisdiction as Amici Curiae, in Support of Petitioners Boumediene et al. (Nos. 06-394, 06-1196), Boumediene v. Bush, 553 U.S. 723 (2008) (on the scope of habeas corpus)
Brief of Amici Curiae Norman Dorsen, Frank Michelman, Burt Neuborne, Judith Resnik, and David Shapiro, in Support of Petitioner Salim Ahmed Hamdan (No. 05-184), Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (on due process)
Brief of Amici Curiae of Law Professors in Support of Petitioner Paula Jones (No. 951853, 1996 WL48092), Clinton v. Jones, 520 U.S. 681 (1997) (on immunity)
Oral Argument presented on behalf of the Rotary Club of Duarte: Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (on California public accommodations law and associational rights under the First Amendment)
United States Courts of Appeals Brief of Amici Curiae, Scholars of the Law of Prisons, the Constitution, and the Federal Courts in Support of the Appellants (No. 16-4234), Delores Henry, et al., v. Melody Hulett, et al. (7th Cir, rehearing en banc pending, 2020) (on constitutional rights in prison)
Brief of Amici Curiae of Constitutional Law and Procedure Scholars Judith Resnik and Brian Soucek in Support of Petitioner (No. 16-73801), submitted for the hearing en banc, C.J.L.G. v. Jefferson B. Sessions III (9th Cir., , 880 F.3d 1122 (2019) (on due process, right to counsel, and immigrant children)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No. 17-17168), Ninth Circuit, State of Hawaii, et al., v. Donald Trump (2017) (on travel bans)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No.
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17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)), Fourth Circuit, International Refugee Assistance Project, et al., Iranian Alliances Across Borders, et al., Eblal Zakzok, et al., v. Donald Trump (2017) (on travel bans)
Of counsel on Brief of Amici Curiae, Constitutional Law Professors in Support of Appellees and Affirmance (No. 17-1351), International Refugee Assistance Project et al. v. Donald J. Trump, et. al. (4th Cir. 2017) (on travel bans)
Appellate Counsel In re San Juan Dupont Plaza Hotel Fire Litigation, 111 F.3d 220 (1st Cir. 1997) (on awards of fees and costs in a mass tort multi-district litigation)
In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295 (1st Cir.1995)
In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 982 F.2d 603 (1st Cir. 1992)
United States District Court Declaration Regarding Provisional Remedies for Detained Individuals, Money v. Jeffries
(N.D. Ill., Eastern Division, No. 20 cv 2-14, filed April 8, 2020
Of Counsel on Motion for Leave to File Declaration of Correctional Expert Rick Raemisch as Amicus Curiae, Savino et al. v. Hodgson et al. (D. Mass., No. 1:20cv-10617-WGY, granted March 31, 2020) (to provide the court and parties with expert information)
Of Counsel on Unopposed Motion for Leave to File Amicus Curiae Statement of Correctional Expert Rick Raemisch, Coleman v. Newson (E.D. Cal, No. 2:90-CV00520-KJM-DB 2020), Plata v. Newsom (No. C01-1351 JST, N.D. Cal., granted April 2, 2020) (to provide the court and parties with expert information)
Court-appointed trustee in re: MDL-926 Global Breast Implant Settlement, 173 F.Supp.2d 1381 (Judicial Panel on Multidistrict Litigation, N.D. Alabama, N.D. Texas, 1994) (overseeing the court-created “common benefit fund”)
Expert appointed by the district court to assist the Special Master in McLendon v. Continental Group, Inc., 802 F.Supp. 1216 (D.N.J. 1992) (assisting the court in relationship to a settlement in an ERISA class action)
Exhibits, Co-Curator The Remarkable Run of a Political Icon: Justice as a Sign of the Law. Rare Book Exhibition Gallery, Lillian Goldman Law Library, Yale Law School, September– December 2011 (with Dennis E. Curtis, Allison Tait & Michael Widener); http://library.law.yale.edu/justice-sign-law-exhibit
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Case 1:20-cv-05496-RMB Document 1-3 Filed 05/04/20 Page 44 of 44 PageID: 14371 Courts: Representing and Contesting Ideologies of the Public Sphere. Yale Art Gallery, Study Galleries, January – May 2011 (with Dennis E. Curtis)
Selected Media Interview, Women, Judging, Equality, and Constitutional Law, RAI Storia (Italian television) – La Corte Costituzionale e le Donne, Pt. 6, January 2020, https://vimeo.com/377835690 Interview, WNPR – Connecticut Public Radio’s Where We Live, presented by John Dankosky, August 5, 2013; http://wnpr.org/post/connecticuts-criminal-justicesystem Interview, BBC Radio 4’s Law in Action, presented by Joshua Rozenberg, March 12, 2013; http://www.bbc.co.uk/programmes/b01r5ln5 Cameo in Fair Game, directed by Doug Liman, Fall 2010, and panel moderator, discussion of the film with Valerie Plame, Joseph Wilson, Emily Bazelon and Doug Liman, Paris Theatre, New York City, October 5, 2010
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DECLARATION OF TROY WRAGG I, Troy Wragg, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at the Federal Correctional Institution at Fort Dix. My Federal Bureau of Prisons Register Number is 67165-019. I was convicted of conspiracy and wire and securities fraud. I have served approximately 17.5 months of my 264-month sentence. My current release date is August 7, 2037. I have no prior offenses of any kind. 2. I am 38 years old. I am classified as a BOP “chronic care inmate” for several serious medical conditions, which are documented in my BOP medical record. My health conditions make me medically vulnerable to COVID-19, and I am terrified that I will not survive if I contract the virus. 3. I have severe epilepsy and suffer from grand-mal seizures that can be so violent and debilitating that I have broken bones during seizures. While in BOP custody in January 2019, I broke my wrist during a seizure and was in a cast for seven weeks. As a result of these seizures, my entire body is incredibly tight and extremely weak. I am prescribed Keppra to treat my epilepsy and, before my incarceration in November 2018, had been on it consistently for four years since my epilepsy diagnosis in November 2014. 4. I need Keppra to survive, but over the past three months, the BOP has not provided me with consistent medication. I have been forced to ration my supply to make it last longer. As a result, my epilepsy has not been controlled and I have suffered frequent seizures. When I have seizures at night, the sound of my bed shaking wakes one of my bunkmates. He jumps down and holds my head to prevent a concussion, and monitors me throughout the episode to make sure I don’t die. Between April 8 and April 23, I suffered 12 seizures. I had another

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seizure in the early morning hours of April 26, and I recovered to find my bunkmate holding my head again.
5. Contracting COVID-19 would make my conditions worse. From research I did for my compassionate release requests, I learned that symptoms of the virus, especially fever, as well as the physical and emotional stress of being sick, can trigger more seizures. Given the inadequacy of the prison’s response to my epilepsy, I am scared that if I do get sick, I won’t receive proper care. Beginning April 14, I’ve made repeated requests (in writing and verbally) to be seen by the medical department. I have submitted two official sick call requests and two electronic cop-out requests, and a corrections officer and a counselor have each made calls on my behalf. As of today, I am still not scheduled to be seen by medical.
6. I also have hypertension and heart disease. I was diagnosed with hypertension in 2011 and had a heart attack in 2012. I take three different medications daily for heart disease and hypertension. Due to my recent seizures and anxiety about COVID-19, my blood pressure has been highly elevated even with medication.
7. Finally, I also have Myasthenia Gravis, a chronic autoimmune neuromuscular disease.
8. I have been in BOP custody since November 2018 and have been at Fort Dix since September 2019. I have completed six programs and have taught four classes as an ACE instructor while at FDC Philadelphia and Fort Dix. Before the COVID-19 outbreak, I was teaching a Business Management and a Business Marketing class to fellow inmates. I am extremely passionate about teaching and helping other inmates further their education. I also completed the Non-Residential Drug Abuse Program (“NRDAP”) with a 100%.
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9. I am currently housed on the west compound in Building 5812. There are a total of about 250 to 300 men across three floors. The vast majority of rooms at Fort Dix (in both west and east compounds) are 12-man rooms, with approximately 10 two-man rooms per building. We are currently confined to our buildings because of the lockdown, but we are allowed to mingle freely with the 250 to 300 men inside.
10. I sleep on a bottom bunk in a 12-man room on the first floor. Nine of the twelve beds are filled right now. I believe our approximately 430-square-foot room is the smallest in the building. There are six double bunkbeds in that space, approximately five feet apart, as well as twelve lockers and a small table. It is physically impossible for nine of us to get six feet apart in this space, as I know we are supposed to be doing now. I frequently run into my bunkmates by accident because the space is so cramped.
11. On the first floor, there is one bathroom shared by about 50 men (although there may be a handicap bathroom for inmates in wheelchairs which I have not seen). Our main bathroom has approximately five toilets, six urinals, twelve sinks, and four working showers. The bathroom is filthy, with urine all over the floor, and usually cleaned only once per week, twice at most. Because the pipes are leaking, water actively drips on our shoulders when we use the restroom and the floor is corroded. There are only four soap dispensers, which sometimes contain watered-down soap, but they run out daily and are often empty. We are given two fourounce travel size bottles of all-in-one shampoo/conditioner/shave gel once a month, which is all we get by way of cleaning product. Otherwise, we have to buy soap off commissary. Some people buy bar soap, which costs between $1 and $2 each. I usually buy body wash, but it is currently out of stock. People told me there were signs posted in early April instructing us to give
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any unused shampoo to an orderly to fill the bathroom soap dispensers. Instead, I give my all-inones to my bunkmate who uses it to mop the floor of our room each day.
12. Men from the top two floors spend much of their time on our floor because we have four TV rooms, as well as all of the building’s computers and telephones. The TV rooms on the first floor are the most active. The main TV room is closest to my room. It has a total of twelve computers, and the building’s eight phones line the wall of a narrow adjoining room. At any given time now, there are usually about 30 to 40 people in a TV room, but I have seen a lot more, probably closer to 100 when we watch the news, especially during coverage of the COVID-19 pandemic. Men from other floors use our bathroom as well. I believe our bathroom is the most used bathroom in the building.
13. When we walk to meals at the dining hall, it is impossible to stay six feet apart. The whole building is ushered together to the dining hall at the same time. Staff announce meal time on the loudspeaker, and all 250 to 300 of us are herded to the dining hall to pick up our food and bring it back to our building to eat in our rooms. We only have five minutes to get to the dining hall and five minutes to get back. It is impossible to social distance.
14. I have been following the updates from the BOP about the COVID-19 outbreak at the camp. I have heard that Building 5851, which is the laundry facility, is also being used to house inmates who have tested positive. It is at the far end of the west compound.
15. I believe prison staff move around the compound and go between the camp and main facility. I have also heard that corrections officers from the camp are now working in my building. Sometimes the corrections officers and other staff do not wear masks.
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16. We began receiving one mask per week in mid-April, but have not received any gloves. When the elastic band on my mask snapped last week, I was told I could not get a new one. Staff only recently began mandating that inmates wear masks for meal pick-up at the dining hall.
17. We have virtually no cleaning supplies. We are provided no chemicals or cleaning agents, hand sanitizers, or spray bottles. We are not provided any towels to wipe surfaces down and have to use the four small rolls of toilet paper, which shred easily, given out once a month. Some people use toilet paper they buy off commissary, but many commissary items are often out of stock.
18. Staff have started doing temperature checks, but they are inconsistent and occur only about every two or three days. During the check, staff come to our room, and we line up at the door.
19. On April 17, I was using one of the computers in the main TV room on my floor. I heard another inmate, who was sitting right behind me, say that he was not feeling well. He complained that his chest hurt and he was short of breath. About four or five minutes later, a medical staff person and a corrections officer came in and asked him questions. The sick inmate left with them, and I have not seen him since. Many people in my building are worried about exposure to the virus. We have been talking about news of an inmate in Building 5811 who fainted during temperature checks and was dragged out of his room on April 23.
20. On April 25, we all filed out to the dining hall as usual to pick up lunch. I saw medics going in and out of Building 5851 with at least 20 stretchers in a matter of 30 seconds. Although I was still far away, it was terrifying to see men who appeared extremely sick and
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nonresponsive. A corrections officer yelled at my bunkmate and me: “Keep it moving, get to chow and get back, that’s all you should be worried about.”
21. Since then, a lot of people have been talking about this incident. I experience the feeling here to be one of tension, helplessness, and hopelessness. People have opened up to me. They feel like the end is here, like we are going to die. We all laugh and joke about things from time to time, but it is simply to mask the sheer torture that we are feeling internally.
22. This morning, at 8:30am, the first floor of our building was released for monthly commissary, supply pickup, and linen exchange. I walked up to the first floor of Building 5851. Staff opened the door and I dropped my dirty linens into a bin. An inmate worker handed me clean linens in return. When I looked up, I saw more than ten inmates at the second and third floor windows. Some were in a window together, some alone. Some but not all were wearing masks. Two were pounding at the windows trying to get our attention, yelling for us. I’ve been talking with my bunkmates and we are in shock. What I saw there has changed me.
23. I have applied to Warden Ortiz three times requesting Compassionate Release and Home Confinement. I wrote the first letter on March 23. The warden denied my requests on April 24, saying he understood my fear about COVID-19 but they were taking precautions. I also wrote requests to the Attorney General and my case manager.
24. If I were released, I would return to a safe and stable home environment with my wife in Perryville, Maryland. At home, I have a cardiologist, neurologists, and a psychiatrist who are very familiar with my chronic medical conditions and much better equipped to take care of me if I do contract COVID-19.
25. Fort Dix’s handling of the infection here, especially given my medical vulnerabilities, has left me panicked, afraid, and at times depressed. I have trouble sleeping and
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often have nightmares when I do sleep. I believe that my chance of contracting COVID-19 is very high, especially now that there are people in the west compound who have it. I often cry when I call my wife now. We worry that contracting COVID-19 would be a death sentence for me.
/s/ Troy Wragg (by consent)
I, Tess Borden, certify that I reviewed the information contained in this declaration with Troy Wragg by telephone on April 28, 2020 and that, at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge.
/s/ Tess Borden_______________ Tess Borden (260892018) American Civil Liberties Union of New Jersey Foundation P.O. Box 32159 Newark, New Jersey 07102 (973) 854-1733 tborden@aclu-nj.org
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DECLARATION OF MICHAEL SCRONIC I, Michael Scronic, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated in the low security satellite camp at the Federal Correctional Institution at Fort Dix. My Federal Bureau of Prisons Register Number is 79605054. I was convicted of securities fraud and have served 17 months of my 96-month sentence. My current release date is September 18, 2025. This is my first offense. 2. I am 48 years old. I have a history of skin cancer, childhood asthma, and abnormal heart symptoms. In 1991, I had a tumor removed from my chest and was told to return to a pathologist regularly. In April 2018, I had Mohs Micrographic surgery to remove another tumor on my chest, which left a wound about the size of a silver dollar. Pathologists reported a skin cancer diagnosis. In November of that year, one month before I entered BOP custody, I was seen for follow up at the Memorial Sloan Kettering Cancer Center in New York City. As a young child, I had recurring serious asthma attacks. My mother has told me stories about me being a bubble boy. From what my family has told me, my breathing condition meant they had to have the house sterilized and install a vaporizing tent over my bed. For years as a small child, I am told I used steroidal medications. I understand these medications are immunosuppressing and that prolonged use can make a person immunocompromised. My medical records from my last physical in 2018 document that I had a cardiac murmur, heart palpitations, elevated blood pressure, and shortness of breath. 3. I have been at the Fort Dix Camp since I entered BOP custody. I have taught three classes to other inmates here through BOP programs: Pre-Calculus, Calculus, and Machine Logic. I have also participated in other programs, including Non-Residential Drug and Alcohol

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Treatment, Parenting, Horticulture, Turf Science, Hydrophonics, Drug Education, Psychology, Yoga Wellness, Guitar, Civil War History, Anatomy and Blueprints.
4. Until April 25, I was housed in the A-wing of the Camp. A-wing is a backward-C shaped room tightly lined with two-person bunk beds. Although population size changes, until March of this year, there were approximately 140 of us housed in A-wing.
5. I was in the middle section of the C-shape. Where I was, the beds were in rows three bunks deep. My bunk was the middle of three. To my right and to my left there was a bunk, not more than two feet from me. If we all reached out we could touch each other. There was an adjoining bunk at my head. For me, no one had been in that bed for about six months, but for most people, it means they sleep with their heads within one foot of another person’s head. At my feet, three feet away, was yet another bunk. This three-foot space was the only corridor through which people would walk. It was physically impossible to get more than six feet away from each other.
6. The bathrooms in A-wing were filthy. The ceiling leaked, there was urine on the floor, and the floors and the showers had mold growing on them. We used to have to buy soap off commissary but, after commissary was terminated on April 6, liquid soap was provided in the bathrooms. Accessible from both A-wing and B-wing are communal common areas including TV rooms, computers, telephones, and the cafeteria.
7. We have been given no gloves. The rules on wearing masks have gone from masks being forbidden to masks being mandatory.
8. On March 30, we received a Notice to Inmate Population regarding Kitchen Attire that read: “Inmates will not be permitted to enter the kitchen on either the East or West compounds for meals with their faces concealed with makeshift masks due to COVID-19
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concerns. Unless deemed necessary by Health Services staff, facial masks of any kind will not be
tolerated outside of working areas.”
9. Soon after, we had a town hall to discuss COVID-19 within the BOP. A senior
staff person told us that no masks could be worn at any time because the officers need to identify
us for their own safety.
10. On April 9, we received a Memorandum for Inmate Population from the nurse,
with subject “Notice to Camp Offenders - 2nd Positive COVID-19 Case.” It read:
Please be advised, a 2nd camp offender has been determined to be positive for COVID19 and a third Camper has been isolated for evaluation of symptoms and is awaiting COVID-19 test results. Both offenders have been removed from Camp quarantine and placed in isolation, where they are receiving treatment.
Consequently, the Camp quarantine will continue through April 21, 2020 given the new COVID-19 confirmed case and the 3rd potential case. Your continued cooperation is essential to protecting your health and the health of the institution.
Please continue to observe infection prevention and control measures including sanitizing high touched surfaces, frequent hand washing, avoid touching your eyes, nose and mouth and people presenting with an ill appearance. Also be sure to cover your cough using a tissue and report any symptoms of fever, cough or shortness of breath. Finally, it is strongly recommended that you dawn your surgical mask upon issue. Be reassured, that all offenders removed from Camp for evaluation or for treatment of COVID-19 will not be returned until they are determined to be free of COVID-19.
COVID-19 is a respiratory illness spread from person to person through the respiratory droplets of an infected person. There is no vaccine or antiviral medication to treat this disease, prevention is key.
11. On April 11, we received a Notice to the Inmate Population. It read:
Date: April 11, 2020 From D. Ortiz, Warden Subject: Protecting Yourself and others
In order to maintain the health of staff and inmates, the following is expected from all inmates: wear your surgical face masks! Since social distancing is not possible in this environment, masks will help keep you and others from spreading viruses.
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In order to maintain the health of staff and inmates, the following is expected from ALL inmates:
wash hands with soap and water for at least 20 seconds avoid touching your eyes, nose and mouth with unwashed hands clean and disinfect all surfaces with the approved chemical cover your cough/sneeze with tissue, immediately throw tissue in the trash and wash your hands wear your surgical face masks! Since Social Distancing is not possible in this environment, masks will help keep you and others from spreading viruses. report symptoms (coughing, sneezing, fever, fatigue, etc. to Health services and/or any staff)
We all must do our part in protecting ourselves and others from spreading COVID-19!
12. On April 13, we received a Memorandum to the Inmate Population from the
nurse, subject line “COVID-19 Update.” It read:
Please be advised, there are 6 inmates who have tested positive for COVID-19. All the offenders who tested positive were from Camp. They have been placed in isolation, where they are receiving treatment.
Please continue to observe infection prevention and control measures including sanitizing high touched surfaces, frequent handwashing, avoid touching your eyes, nose and mouth. Also, be sure to cover your cough using a tissue and immediately dispose of the used tissue. Report any symptoms of fever, cough or shortness of breath.
Finally, it is strongly recommended that you wear your mask. Be reassured, that all offenders removed from the Camp for evaluation or for treatment of COVID-19 will not be returned until they are determined to be free of COVID-19.
COVID-19 is a respiratory illness spread from person to person through the respiratory droplets of an infected person. There is no vaccine or antiviral medication to treat this disease, prevention is key.
13. On April 16, we received another Notice to the Inmate Population from Warden
Ortiz, with subject line “Mandatory use of face coverings.” It read: “It is mandatory that all
inmates will wear face coverings provided by staff. Inmates in non-compliance may be subject
to disciplinary action.”
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14. There is not real effort to keep the prison sanitized that I have observed. We have been told to sanitize our work and living areas but we do not have the necessary supplies to do so. We have not been provided any sanitizers, detergents, or paper towels.
15. On April 6, a 75-year-old inmate was removed from A-wing. I have heard he was later released and is now hospitalized. This inmate was a food server and had been visibly sick for days before being removed from population.
16. On April 8, they mixed up A-wing and B-wing populations. Sixty-three men from the camp were designated to B-wing because they were being considered for release and had to be quarantined. The remaining 162 or so of us were designated to A-wing, in more crowded conditions than previously. Over the next week or two, 14 people from A-wing and one older man from B-wing were removed because they had COVID-19 symptoms. Of those, I heard at least 11 tested positive.
17. This month, four inmates have lost consciousness at different times in the camp; I have observed two of those incidents. I have seen people showing what I know to be common symptoms of COVID-19 including coughing, sweating, feverishness, and vomiting.
18. On April 20, an inmate collapsed as a nurse and senior staff member walked through the camp during temperature check. People screamed for help, and I went over and witnessed the following: The senior staff member sprayed the fallen inmate with disinfectant, his whole body and then his head. An inmate yelled, “What are you doing? He needs help!” The senior staff member responded, “I’m disinfecting him first.” The nurse took off the inmate’s mask, and it had blood and green vomit in it. The senior staff member sprayed the inmate’s bed and pillow afterward. Eventually, I yelled, “Get him out of here. He needs help now!” The nurse
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asked the officers for a stretcher. They came back with a wheelchair and he was eventually rolled to the camp’s medical office. I heard he left medical 20 minutes later with an IV In his arm.
19. On April 21, an inmate kitchen worker who had been visibly sick for almost a week told officers he needed medical attention around 8:30 pm. They responded, “we’ll wait until count is finished.” Count finished at 9:30 pm. There is no nurse on site at the camp, so he sat across from the nurse’s office waiting. Because he is a good friend of mine, I checked on him during this time. At one point, he told the officer he needed his asthma inhaler. The officer asked if he could get it from his locker, and he said he was too weak to stand up. So I walked the officer to his locker to get his inhaler, which he then took. Around 10:20 pm, he saw a nurse for about 15 minutes. By 11 pm, he was removed from the unit. I haven’t seen or heard about him since.
20. From April 8 to April 24, we were physically separated from inmates in B-wing, but the wings were allowed to use the same common areas, including TVs, phones, computers, and cafeteria, just at different times. I worried that there was insufficient cleaning in between.
21. We also continued to communicate through a glass door between the wings. Many of my friends were now among those in A-wing, and I learned that a lot of people there had symptoms including coughing, fever, and sweating.
22. On April 22, the 62 men remaining in B-wing were tested for COVID-19. On April 24, they received their results. I heard – from inmates and the nurse – that 21 of them were positive. Many were my friends.
23. Later that day, everyone in B-wing was moved to the main facility. I heard the positives were sent to the same building other positives had gone, and that the negatives were sent to the Unicor Warehouse. We were informed that inmates in A-wing, my unit, with last
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names beginning M through Z would be moved to the now empty B-wing. That night, I watched two officers clean that empty wing and carry out bags of trash.
24. We moved on the morning of April 24. We were left to choose whatever bunks we wanted, and we all tried to choose ones spaced apart. We were not allowed to bring our mattresses or our lockers with us, despite the fact we were afraid the prison didn’t have the manpower or the time to thoroughly disinfect the area they were moving us to. I was scared to sleep on the mattress of someone who just tested positive for COVID-19. One of the men tried to drag his mattress over. I heard an officer say, “Give me your ID. You’re going to get written up.”
25. We were not tested for COVID-19 at the time of the move. We received no information about what was happening to us.
26. Since then, I have not been tested and do not know of anyone still in the camp who has been tested. People are afraid to notify the prison about symptoms because those who have symptoms are sent to isolation, and we know nothing about the isolation unit or the treatment they get there.
27. In mid-to late April, multiple inmates were giving incident reports for minor behavior who, as far as I had observed, had not been subjected to discipline previously. For instance, four inmates were lying in their beds and did not hear call for count. They received a disciplinary report as a result. I believe that any inmate with an incident report in the last 12 months will not be considered for home confinement release, according to BOP policy.
28. On April 6 and April 9, I wrote to my BOP case manager requesting Compassionate Release. I also wrote to the Warden with this request, and my sister separately wrote to him about it. I have not yet received a response. Currently, I believe that I am not in any plans to be released by Fort Dix. I have not been on any “lists” as of yet. Until recently, I had
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observed that other inmates’ compassionate release requests were being responded to with blank forms, with only the person’s name on top. Yesterday and today, inmates started getting denials for the following reasons: not 50% time served, incident reports, and a violent offense in their history, even decades old. I have yet to hear anything on mine.
29. If I were released from Fort Dix, I would live with my sister and her two children in Brooklyn and pursue teaching. Before my incarceration, I had received an offer to be a teaching fellow in high school math. I had deferred that offer at the time and hope to explore it further.
/s/ Michael Scronic (by consent)
I, Tess Borden, certify that I reviewed the information contained in this declaration with Michael Scronic by telephone and, as to ¶¶ 8-13 and ¶ 18, by correspondence, on April 28, 2020, and that, at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge.
/s/ Tess Borden_______________ Tess Borden (260892018) American Civil Liberties Union of New Jersey Foundation P.O. Box 32159 Newark, New Jersey 07102 (973) 854-1733 tborden@aclu-nj.org
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DECLARATION OF LEONARD BOGDAN I, Leonard Bogdan, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at the Federal Correctional Institution at Fort Dix. My Federal Bureau of Prisons Register Number is 07918-088. I was convicted of conspiracy to commit fraud, mail fraud, and money laundering and have served over 13 years of my 360month sentence. Given good time credits, my current release date is August 17, 2032, meaning I have in practice already served over half my sentence. I have no prior offenses of any kind. 2. I am 68 years old. I have numerous serious medical conditions documented in my BOP medical record and am classified as a BOP “chronic care inmate.” Since being incarcerated at Fort Dix, I developed a nodule on my thyroid which causes a rapid heart beat and was diagnosed by the Fort Dix doctor as a “potentially cancerous nodule, thyroid.” He prescribed medications that are beta-blockers, which I take twice a day to slow my heart. Without them, my resting heart rate is 120 beats per minute. I also have a type of heart disease related to the valves of my heart, which was diagnosed by the Fort Dix doctor as “bundle branch block, bifascicular.” I have hypertension, high cholesterol, and skin cancer on the top of my head which was diagnosed by the Fort Dix doctor as “actinic keratosis.” I have extensive physical disability due to a severe case of scoliosis, which impacts my internal organs. Because of the twisting of my spine, my ribcage has been contorted to press on my lungs and cause me chronic shortness of breath, which is also noted in my BOP medical file. The scoliosis has caused some displacement of my kidneys as well, which was observed by an outside doctor who visited me at Fort Dix and is noted in my medical file.

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3. For a combination of these conditions, I have been transported at least four times per year to various regional hospitals, including St. Francis Medical Center, Robert Wood Johnson University Hospital, and Deborah Lung and Heart Center, and other specialty offices. These conditions make me medically vulnerable and afraid for my life of getting infected with COVID-19.
4. I have been at Fort Dix since 2013 and have logged over 9,000 programming hours since my incarceration starting in 2007. At Fort Dix, I work as the clerk for the officer in charge of programming in the education department. Since I arrived in 2013, I have served as a tutor for GED students, primarily in math and English, as well as helping proctor and provide materials for the adult continuing education classes and the TPC (Transition from Prison to Community) program.
5. I am currently housed in Building 5841 on the west side of the prison, in what is considered the Honor Unit, also known as the Admissions and Orientation dorm. When new people come to Fort Dix, they come to this unit. I am the clerk who helps the team and counselor process new inmates.
6. My building, like all others in the prison to my knowledge, is divided into three floors. The capacity of the building is 374, which I believe is typical of buildings on both the west and east sides of the prison. The vast majority of rooms in these buildings are 12-man rooms, although we have two-man rooms as well. We have 230 people housed here, and so are not at full capacity, but I believe other buildings are fuller.
7. I am lucky to be in a two-man room, but I still have contact with shared space and surfaces with hundreds of other people in my building each day. All 230 of us have free movement within the building to congregate in the common areas and each other’s rooms. There
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are four TV rooms for the building: two large and two small. The computers that people use to email family are also in the large TV rooms. Everyone wants to watch TV to find out information about the virus, so at any given time, you have over 30 men watching TV in each small room and over 50 in each large room, not to mention the people waiting around to use the computers. There are two telephone rooms of approximately 13 by 13 feet for the whole building, which each have three phones on the wall two feet apart from each other. There is always a line of people waiting for the phones. With the TV rooms and phone rooms, I have observed no attempt by prison staff to enable social distancing or to stagger use. I use the computers and/or phones on a daily basis, sometimes multiple times each day. I try to clean them myself between uses but am not sure it is sufficient to kill the virus.
8. On my floor, I share bathroom facilities with 87 other men, and nothing prevents other people from other floors from using them if they are on our floor. There are four bathrooms with a combined total of approximately 10 urinals, 14 stalls, and 8 showers for the floor. The urinals, stalls, and showers are all right next to each other, so you are within a foot or two of another man using the facilities. I have not observed any attempts by prison staff to stagger use of the showers or otherwise assign people to certain bathrooms, to limit contact with others.
9. Since March 17 when the limited movement and lockdown at Fort Dix began, we have stopped eating our meals in the cafeteria. Instead, all 230 of us go to the cafeteria three times a day to pick up food and bring it back to the building. There is an announcement right before we have to leave, and everyone crowds into the single exit and adjoining hallway, because we have only five minutes to vacate the building. We are hurried along by prison staff and then are often waiting for some time in line all together to pick up the food. All 230 of us then congregate back at the building to wait for the doors to open. Most people then eat their food in
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the TV room or in the twelve-man rooms. Three times a day, I am therefore in a mix of 230 men moving in a group to pick up food. We are not able to practice social distancing. We are not able to keep six feet apart during this time.
10. No one in this building has told me they have been tested for the virus. We are not receiving any information about testing or the rate of infection spread, which makes me feel anxious and uncertain. Over the past month and a half, three people in my building have had symptoms such as coughing, headaches and body aches, and have been removed from the building for a couple days and then returned to the unit. One of them told me, however, that he was diagnosed with bronchitis. He was not tested for COVID-19.
11. I know they are housing people who are sick with the virus in the building next to mine, Building 5851, which is the laundry facility. They have brought sick people from the camp into that building, which means bringing people inside the West Compound where we can be exposed to them. Corrections officers also go between buildings and between the main facility and the camp. About three weeks ago, all the officers I see started wearing masks.
12. I applied to the Fort Dix Warden David Ortiz for Compassionate Release over a year ago. It was denied because I had not served 50 percent of my sentence. I appealed it administratively to the BOP regional office and got a final denial from Washington, D.C. this past February. On March 30 when I saw Attorney General William Barr’s memo, I applied to the warden for Home Confinement due to COVID-19. I was never told I would be considered for Home Confinement or how they were considering people. On April 20, I received a paper from my case manager saying I was denied Home Confinement because I had not served 50 percent of my sentence. I did not know that was the standard for Home Confinement. However, because I
4

Case 1:20-cv-05496-RMB Document 1-6 Filed 05/04/20 Page 5 of 5 PageID: 167
have to serve 85 percent of my 30-year sentence, I am already over halfway done. I have already served over 13 years and my current release date is August 2032.
13. Of the 230 people I live with, I do not know anyone who has been sent to Home Confinement since the Attorney General memo. Three weeks ago, ten people here were called to the case manager who told them they were under consideration for release. They have not left the building yet or been placed in isolation pending release.
14. If I were released, I would return home to my wife in West Virginia. We are financially secure. I will be 69 years old in July and would retire.
/s/ Leonard Bogdan (by consent)
I, Tess Borden, certify that I reviewed the information contained in this declaration with Leonard Bogdan by telephone on April 26, 2020 and that, at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge.
/s/ Tess Borden_______________ Tess Borden (260892018) American Civil Liberties Union of New Jersey Foundation P.O. Box 32159 Newark, New Jersey 07102 (973) 854-1733 tborden@aclu-nj.org
5

Case 1:20-cv-05496-RMB Document 1-7 Filed 05/04/20 Page 1 of 3 PageID: 168
DECLARATION OF ELIEZER SOTO-CONCEPCION I, Eliezer Soto-Concepcion, am over the age of 18 and fully competent to make the following declaration: 1. I am incarcerated at the Federal Correctional Institution at Fort Dix in the low security Camp. My Federal Bureau of Prisons Register Number is 72850-067. I was convicted of conspiracy to distribute and possession with intent to distribute heroin and cocaine and sentenced to 144 months. Prior to my sentencing in November 2017, I was incarcerated for two years in jail when I could not make bail, so I have served approximately 53 months. Given good time credits, my current release date is September 5, 2025. I have no prior convictions. 2. I am 38 years old. I have serious medical conditions including heart problems and high blood pressure for which I take medication for both every day. I have had three heart attacks and was hospitalized for all three: when I was 25 years old in Puerto Rico, when I was in my early 30s in Pennsylvania, and again soon after that in Manhattan. They told me I had clogged arteries. As a result, I also have a nervous system problem that makes my hands shake. 3. I have been at Fort Dix since December 2017. I have participated in a lot of BOP programming, including classes in ESL, carpentry, horticulture, Spanish parenting, and classes to get a license to operate a forklift. I also go to church at the prison. 4. Until last Friday, April 24, I was housed in the Camp’s A side with over 100 other men. On Friday, I found out lots of people on the other side of the Camp in the B side tested positive for the virus. I heard there were 21. Because they were sick, everyone there was moved out. On Saturday, I was moved into the B side along with about 70 other men from the A side, so now we are about 70 and 70 on each side.

Case 1:20-cv-05496-RMB Document 1-7 Filed 05/04/20 Page 2 of 3 PageID: 169
5. Many of my friends have now tested positive for the virus, and over the past weeks I have seen many people exhibiting symptoms around me, including frequent coughing and vomiting. I am afraid I will get the virus because I have been so close to them, and that it will be very bad because of my medical conditions.
6. In mid-April, I sent requests for Compassionate Release to Fort Dix Warden David Ortiz and my case manager. I have not received a response from either of them.
7. If I were released, I would go to Puerto Rico to live with my grandmother for a while and work as an auto mechanic. I have two sons, ages 19 and 17, who live with their mother in Pennsylvania. Someday, I hope to be able to join my children there.
/s/ Eliezer Soto-Concepcion (by consent)
I, Tess Borden, certify that I reviewed the information contained in this declaration with Eliezer Soto-Concepcion by telephone on April 26, 2020. Because he has limited English language proficiency, I sent him a copy of this letter translated to Spanish by Cindy Guaman. He certified in writing on April 28, 2020 that the information contained in this declaration was true and accurate to the best of his knowledge.
/s/ Tess Borden_______________ Tess Borden (260892018) American Civil Liberties Union of New Jersey Foundation P.O. Box 32159 Newark, New Jersey 07102 (973) 854-1733 tborden@aclu-nj.org
2

Case 1:20-cv-05496-RMB Document 1-7 Filed 05/04/20 Page 3 of 3 PageID: 170

CERTIFICATE OF TRANSLATION I, Cindy Guaman, swear under penalty of perjury and pursuant to 28 U.S.C. § 1746 that I speak English and Spanish, that I translated this document into Spanish to the best of my ability, and that the response from Eliezer Soto-Concepcion, provided to me by Tess Borden, is translated as follows: “The information contained in this statement is true and accurate to the best of my knowledge.”

April 28, 2020 Date

____________________________________ Signature

3

JS 44 (Rev. 08/18) Case 1:20-cv-05496-RMB CDIoVcuILmeCnOt 1V-8ERFiSleHd E05E/0T4/20 Page 1 of 2 PageID: 171

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

I. (a) PLAINTIFFS

DEFENDANTS

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTO-CONCEPCION
(b) County of Residence of First Listed Plaintiff Burlington (FCI Fort Dix)
(EXCEPT IN U.S. PLAINTIFF CASES)

(see attachment)
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

(see attachment)

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

u 1 U.S. Government Plaintiff

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

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

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U.S. Government Defendant

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

Citizen of Another State

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

u 5 u5

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

u 6 u6

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

Click here for: Nature of Suit Code Descriptions.

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u 110 Insurance

PERSONAL INJURY

PERSONAL INJURY u 625 Drug Related Seizure

u 422 Appeal 28 USC 158

u 120 Marine

u 310 Airplane

u 130 Miller Act

u 315 Airplane Product

u 140 Negotiable Instrument

Liability

u 150 Recovery of Overpayment u 320 Assault, Libel &

& Enforcement of Judgment

Slander

u 151 Medicare Act

u 330 Federal Employers’

u 152 Recovery of Defaulted

Liability

Student Loans

u 340 Marine

(Excludes Veterans)

u 345 Marine Product

u 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

u 350 Motor Vehicle

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 190 Other Contract

Product Liability

u 195 Contract Product Liability u 360 Other Personal

u 196 Franchise

Injury

u 362 Personal Injury -

u 365 Personal Injury -

of Property 21 USC 881

Product Liability

u 690 Other

u 367 Health Care/

Pharmaceutical

Personal Injury

Product Liability

u 368 Asbestos Personal

Injury Product

Liability

PERSONAL PROPERTY

LABOR

u 370 Other Fraud

u 710 Fair Labor Standards

u 371 Truth in Lending

Act

u 380 Other Personal

u 720 Labor/Management

Property Damage

Relations

u 385 Property Damage

u 740 Railway Labor Act

Product Liability

u 751 Family and Medical

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

Medical Malpractice

Leave Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS u 790 Other Labor Litigation

FEDERAL TAX SUITS

u 210 Land Condemnation

u 440 Other Civil Rights

Habeas Corpus:

u 791 Employee Retirement

u 870 Taxes (U.S. Plaintiff

u 220 Foreclosure

u 441 Voting

u 463 Alien Detainee

Income Security Act

or Defendant)

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

u 442 Employment

u 510 Motions to Vacate

u 443 Housing/

Sentence

Accommodations

u 530 General

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

IMMIGRATION

u 871 IRS—Third Party 26 USC 7609

Employment

Other:

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

Other

u 550 Civil Rights

u 448 Education

u 555 Prison Condition

u 560 Civil Detainee -

u 462 Naturalization Application u 465 Other Immigration
Actions

Conditions of

Confinement

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

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

u 1 Original

u 2 Removed from

Proceeding

State Court

u 3 Remanded from Appellate Court

u 4 Reinstated or u 5 Transferred from

Reopened

Another District

(specify)

u 6 Multidistrict Litigation Transfer

u 8 Multidistrict Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
28 U.S.C. § 2241 VI. CAUSE OF ACTION Brief description of cause:
Habeas corpus class action on behalf of medically vulnerable prisoners, alleging violations of 8th Am & Rehab Act

VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER RULE 23, F.R.Cv.P.

JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

DOCKET NUMBER

DATE
05/04/2020
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s/ Tess Borden

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 1:20-cv-05496-RMB Document 1-8 Filed 05/04/20 Page 2 of 2 PageID: 172
Defendants/Respondents
David E. Ortiz, in his capacity as Warden of the Federal Correctional Institution, Fort Dix Michael Carvajal, in his capacity as Director of the Bureau of Prisons
Counsel for Defendants/Respondents
J. Andrew Ruymann Assistant U.S. Attorney Chief, Civil Division U.S. Attorney’s Office for the District of New Jersey 402 E. State Street, Room 430 Trenton, NJ 08608 609-989-0563 John.Ruymann@usdoj.gov
Counsel for Plaintiffs/Petitioners
Tess Borden Jeanne LoCicero AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION 570 Broad Street, 11th floor P.O. Box 32159 Newark, NJ 07102 973-854-1733 tborden@aclu-nj.org
Jim Davy* 2362 E. Harold Street Philadelphia, PA 19125 609-273-5008 jimdavy@gmail.com
Matthew Stiegler* Law Office of Matthew Stiegler 7145 Germantown Avenue, Suite 2 Philadelphia, PA 19119 215-242-1450 Matthew@StieglerLaw.com
*Petition for permission to file pro hac vice forthcoming

 
 Case 1:20-cv-05496-RMB Document 9 Filed 05/06/20 Page 1 of 2 PageID: 773

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTO-CONCEPCION, individually and on behalf of all others similarly situated,
Petitioners,
v.
DAVID E. ORTIZ, in his capacity as Warden of the Federal Correctional Institution, Fort Dix, and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons,
Respondents.

Case No. 20-cv-5496-RMB

NOTICE OF MOTION FOR PRELIMINARY INJUNCTION PLEASE TAKE NOTICE that pursuant to Fed. R. Civ. P. 65, and upon Petitioners’ Memorandum of Law in Support of Petitioners’ Motion for Preliminary Injunction and their Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241, Petitioners hereby move this Court to issue a Preliminary Injunction ordering temporary enlargement of custody (or bail pending habeas corpus) of Petitioners and Class Members during the pendency of the petition for a writ of habeas corpus. Given the exigencies and the threat of irreparable harm outlined in the accompanying Memorandum of Law, Petitioners respectfully request that the Court order Respondents to respond to this Motion expeditiously. Counsel for Petitioners have written to Counsel for Respondents via

1

Case 1:20-cv-05496-RMB Document 9 Filed 05/06/20 Page 2 of 2 PageID: 774

electronic mail in an attempt to negotiate a jointly proposed briefing schedule for the Motion. Counsel for Petitioners will file their proposal with the Court on May 7.1

Dated: May 6, 2020

Respectfully submitted:
s/ Tess Borden___________ Tess Borden (260892018) Jeanne LoCicero AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION 570 Broad Street, 11th floor P.O. Box 32159 Newark, NJ 07102 973-854-1733 tborden@aclu-nj.org

1 Counsel for Petitioners will send courtesy copies, by electronic mail, of this Motion, Memorandum of Law, and accompanying Exhibit, to AUSAs Elizabeth Pascal, John Basiak, John Ruymann, and John Stinson, within one hour of the filing of this Motion.
2

Case 1:20-cv-05496-RMB Document 9-1 Filed 05/06/20 Page 1 of 48 PageID: 775

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTO-CONCEPCION, individually and on behalf of all others similarly situated,

Case No. 20-cv-5496-RMB

Petitioners,

v.

DAVID E. ORTIZ, in his capacity as Warden of the Federal Correctional Institution, Fort Dix, and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons,

Respondents.

MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 1:20-cv-05496-RMB Document 9-1 Filed 05/06/20 Page 2 of 48 PageID: 776
TABLE OF CONTENTS
Pages
PRELIMINARY STATEMENT ...............................................................................1
FACTUAL BACKGROUND....................................................................................7
A. COVID-19 Is A Dangerous And Extremely Contagious Disease, And Is Particularly Harmful To People Over 50 And Those With Underlying Health Conditions...........................................7
B. Prisons Like Fort Dix Are Uniquely Ill-Suited To Adequately Manage The Risk Of Contracting COVID-19 ....................................10
C. The Design of Fort Dix Makes Social Distancing Impossible ...........12
D. Fort Dix Has Proven Itself Unable To Take Proper Precautions........14
E. Petitioners Are At Grave Risk Of Harm Because Of Their Unique Vulnerability To Serious Illness Or Death From Contracting COVID-19 .......................................................................19
ARGUMENT ...........................................................................................................22
I. THE COURT SHOULD TEMPORARILY ENLARGE PETITIONERS’ CUSTODY.........................................................................22
A. Petitioners’ Eighth Amendment Claim Is Likely To Succeed On The Merits ...........................................................................................24
1. This Court Has Jurisdiction Under § 2241 Because Petitioners Challenge The Fact Of Their Confinement ............25
2. Petitioners Have Shown That COVID-19 Is A Serious Medical Crisis ...........................................................................28
3. Petitioners Have Shown Respondents’ Deliberate Indifference To The Serious Risk Created By The COVID-19 Pandemic................................................................30
B. Petitioners Will Suffer Irreparable Harm Absent A Preliminary Injunction ............................................................................................. 32
i

Case 1:20-cv-05496-RMB Document 9-1 Filed 05/06/20 Page 3 of 48 PageID: 777
C. Equity And The Public Interest Favor Petitioners ..............................34 II. THE COURT SHOULD ORDER RELIEF ON A CLASS-WIDE
BASIS ............................................................................................................37 CONCLUSION ........................................................................................................39
ii

Case 1:20-cv-05496-RMB Document 9-1 Filed 05/06/20 Page 4 of 48 PageID: 778
TABLE OF AUTHORITIES
Pages
Cases
Al Otro Lado v. Wolf, 952 F.3d 999 (9th Cir. 2020) .........................................................................38
Amaya-Cruz v. Adducci, 1:20 CV 789, 2020 WL 1903123 (N.D. Ohio Apr. 18, 2020) ......................23
Amchem Prod., Inc. v. Windsor, 521 U.S. 591 (1997).......................................................................................39
Anthony W. v. Anderson, 20-cv-3704-BRM, 2020 WL 2121118 (D.N.J. Apr. 17, 2020).....................23
Armstrong v. Grondolsky, 290 F. App’x 451 (3d Cir. 2008) .....................................................................6
Avendaño Hernandez v. Decker, 20-cv-1589 (JPO), 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020)......... 23, 29
Barbecho v. Decker, 20-cv-2821-AJN, 2020 WL 1876328 (S.D.N.Y. Apr. 15, 2020)..................23
Basank v. Decker, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020)........................................ 23, 29
Beattie v. CenturyTel, Inc., 511 F.3d 554 (6th Cir. 2007) .........................................................................39
Berg v. Cty. of Allegheny, 219 F.3d 261 (3d Cir. 2000) ..........................................................................30
Boone v. Brown, No. 05-cv-750-AET, 2005 WL 2006997 (D.N.J. Aug. 22, 2005) ................36
Camancho Lopez v. Lowe, No. 3:20-cv-563, 2020 WL 1689874 (M.D. Pa. Apr. 7, 2020), as amended (Apr. 9, 2020) .................................................................................26
iii

Case 1:20-cv-05496-RMB Document 9-1 Filed 05/06/20 Page 5 of 48 PageID: 779
Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012) ..........................................................................27
Castillo v. Barr, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) ..............................................23
Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020)........................................ 23, 29
Cristian A.R. v. Decker, No. 20-cv-3600-MCA, 2020 WL 2092616 (D.N.J. Apr. 12, 2020)...... passim
Davis v. Fechtel, 150 F.3d 486 (5th Cir. 1998) .........................................................................27
Durel B. v. Decker, 20-cv-3430-KM, 2020 WL 1922140 (D.N.J. Apr. 21, 2020) .......................22
Estelle v. Gamble, 429 U.S. 97 (1976).....................................................................................3, 24
Farmer v. Brennan, 511 U.S. 825 (1994)............................................................................ 3, 24, 38
Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402 (6th Cir. 2012) .........................................................................38
Grant v. Decker, 20-cv-2946-AKH, ECF No. 18 (S.D.N.Y. Apr. 17, 2020)............................23
Greene v. Bowles, 361 F.3d 290 (6th Cir. 2004) .........................................................................39
Gregg v. Georgia, 428 U.S. 153 (1976).......................................................................................24
Helling v. McKinney, 509 U.S. 25 (1993)................................................................................. passim
Hernandez v. Campbell, 204 F.3d 861 (9th Cir. 2000) ...........................................................................3
iv

Case 1:20-cv-05496-RMB Document 9-1 Filed 05/06/20 Page 6 of 48 PageID: 780
Hope v. Doll, No. 20-cv-562-JEJ, ECF no. 11 (M.D. Pa. Apr. 7, 2020) ................................5, 36
In re Rent-Way Sec. Litig., 218 F.R.D. 101 (W.D. Penn. 2003) ...............................................................39
In the Matter of the Request to Commute or Suspend County Jail Sentences, Consent Order, No. 084230 (N.J. Mar. 22, 2020) .........................................30
Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir. 1989) ..........................................................................33
Johnson v. Wetzel, 209 F. Supp. 3d 766 (M.D. Pa. 2016)............................................................33
Johnston v. Marsh, 227 F.2d 528 (3d Cir. 1955) ........................................................................5, 6
Jose D. M. v. Barr, No. CV 20-4031 (KM), 2020 WL 1969893 (D.N.J. Apr. 24, 2020).............29
Kevin M.A. v. Decker, No. 20-cv-4593-KM, 2020 WL 2092791 (D.N.J. May 1, 2020) ..............5, 35
Kongtcheu v. Secaucus Healthcare Ctr., LLC, 2014 WL 2436048 (D.N.J. May 30, 2014)....................................................22
Landano v. Rafferty, 970 F.2d 1230 (3d Cir. 1992) ..........................................................................6
Leandro R.P. v. Decker, 20-cv-3853-KM, 2020 WL 1889791 (D.N.J. Apr. 17, 2020) ................ 22, 35
Lee v. Orr, 13-cv-8718-SJC, 2013 WL 5490577 (N.D. Ill. Dec. 10, 2013) ....................38
Levine v. Apker, 455 F.3d 71 (2d Cir. 2006) ............................................................................27
Livas v. Myers, No. 20-cv-0422, 2020 WL 1939583 (W.D. La. Apr. 22, 2020)....................26
v

Case 1:20-cv-05496-RMB Document 9-1 Filed 05/06/20 Page 7 of 48 PageID: 781
Lucas v. Hadden, 790 F.2d 365 (3d Cir. 1986) ............................................................................6
Malam v. Adducci, 20-10829 (JEL), 2020 WL 1672662 (E.D. Mich. Apr. 6, 2020)...................23
Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972) .......................................................................37
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575 (3d Cir. 2003) ..........................................................................24
Pellulo v. U.S., 487 F. App’x 1 (3d Cir. 2012) .........................................................................6
Preiser v. Rodriguez, 411 U.S. 475 (1973).......................................................................................26
Rafael L.O. v. Tsoukaris, No. 20-cv-341 (JMV), 2020 WL 1808843 (D.N.J. Apr. 9, 2020) ................23
Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir. 2017) ..........................................................................32
Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999) ..........................................................................24
Streicher v. Prescott, 103 F.R.D. 559 (D.D.C. 1984) ......................................................................37
Tedford v. Hepting, 990 F.2d 745 (3d Cir. 1993) ..........................................................................26
Thakker v. Doll, No. 20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020).............. passim
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).......................................................................................38
Williams v. Richardson, 481 F.2d 358 (8th Cir. 1973) .........................................................................37
vi

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Wilson v. Williams, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020) .............................. 3, 5, 29, 34
Wilson v. Williams, No. 20-3447, ECF No. 23-1 (6th Cir. May 4, 2020) .....................................26
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)...........................................................................................22
Woodall v. Fed Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005) ......................................................................3, 27
Statutes 28 U.S.C. § 2241 .............................................................................................. passim 29 U.S.C. § 794..........................................................................................................1 42 U.S.C. § 1983 ......................................................................................................26 Rules Fed. R. Civ. P. 23 .............................................................................................. 38, 39
Other Authorities Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-
19), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/casesin-us.html .........................................................................................................7 World Health Org., Coronavirus disease (COVID-19) Pandemic, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 .............7
vii

Case 1:20-cv-05496-RMB Document 9-1 Filed 05/06/20 Page 9 of 48 PageID: 783
Troy Wragg, Michael Scronic, Leonard Bogdan, and Eliezer Soto-Conception (“Petitioners”), on behalf of themselves and a class of current and future people in post-conviction custody at Federal Correctional Institution, Fort Dix (“Fort Dix”) who are over the age of 50 or who experience medical conditions that make them uniquely vulnerable to risk of serious illness or death as a result of being infected with COVID-19 (the “Class”), respectfully submit this memorandum of law in support of their motion for a preliminary injunction.1
PRELIMINARY STATEMENT Petitioners are confined at Fort Dix, a low-to-minimum security federal prison2 in which most of the roughly 3,000 prisoners eat, sleep, and congregate in crowded units. Because of their age and medical conditions, Petitioners are uniquely vulnerable to serious illness or death if they contract COVID-19. But people confined at Fort Dix are unable to take the steps that public health officials warn are necessary to avoid the rapid spread of COVID-19: social distancing and reliable, vigilant personal hygiene. The Warden, Respondent David Ortiz, has conceded as much, admitting to prisoners—just days after Fort Dix acknowledged its first case
1 Though Petitioners bring claims on behalf of both the Class and a Subclass of prisoners with qualifying disabilities under the Rehabilitation Act, 29 U.S.C. § 794, at this juncture Petitioners seek a preliminary injunction only as to the Class. 2 Fort Dix is a low-security federal correctional institution with an adjacent minimum-security Camp. Borden Decl. Exs. 52, 54.

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of a prisoner testing positive for COVID-19—that “social distancing is not possible in this environment.” Ex. 1; see also Scronic Decl. ¶ 11.3 For that reason, the number of infections among prisoners is surely much higher than the Bureau of Prisons’ current report of 40. Borden Decl. Ex. 29. As that number continues to climb, Petitioners face imminent and serious risks to their health and safety that Respondents are unwilling or unable to mitigate. Petitioners therefore ask the Court to issue a preliminary injunction ordering temporary enlargement of custody for Fort Dix’s most vulnerable prisoners. Emergency relief is appropriate because Petitioners are likely to succeed on the merits of their habeas petition, they will suffer irreparable injury absent temporary enlargement of custody, and the equities and public interest weigh heavily in their favor.
First, Petitioners will likely succeed on the merits. Petitioners bring this action for release from custody that violates the Eighth Amendment to the U.S. Constitution, and seek this relief under § 2241 because it is the fact of their confinement that creates the constitutional violation. This Court has jurisdiction to hear petitions for habeas corpus alleging “custody in violation of the Constitution or laws or treaties of the United States,” such as the Eighth Amendment. 28 U.S.C. § 2241(c)(3);
3 Citations to “____ Decl.” refer either to the declarations attached to the Petition for Writ of Habeas Corpus, ECF No. 1, or to the Declaration of Tess Borden (“Borden Decl.”), dated May 4, 2020, ECF No. 3.
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see also Woodall v. Fed Bureau of Prisons, 432 F.3d 235, 242 (3d Cir. 2005) (“[C]hallenges to the ‘manner, location, or conditions of a sentence’s execution’ must be brought pursuant to § 2241.” (quoting Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000)). The Eighth Amendment, in turn, guarantees prisoners “humane conditions of confinement,” Farmer v. Brennan, 511 U.S. 825, 832 (1994), and “[d]eliberate indifference to [the] serious medical needs of prisoners” is therefore unconstitutional, Estelle v. Gamble, 429 U.S. 97, 104 (1976). The continued confinement of medically vulnerable prisoners at Fort Dix presents the exact “unreasonable risk of serious damage to [a prisoner’s] future health” that the Eighth Amendment prohibits. Helling v. McKinney, 509 U.S. 25, 35 (1993). Respondents are aware of the grave dangers posed by COVID-19 but have failed to implement measures to comply with their constitutional obligations to Petitioners. Indeed, the design of Fort Dix, in which Petitioners are confined either in large dormitories or in 200- to 300-person buildings, would make it unsafe for Petitioners even if Respondents were following guidance from public health experts and the Centers for Disease Control and prevention (“CDC”)—which they are not. Because their confinement is and will continue to be unconstitutional, Petitioners are likely to prevail on their habeas claim. See, e.g., Wilson v. Williams, 2020 WL 1940882, at *8–10 (N.D. Ohio Apr. 22, 2020) (ordering temporary enlargement of custody pursuant to
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§ 2241 for medically vulnerable federal prisoners), stay pending appeal denied, No. 20-3447, ECF No. 23-1 (6th Cir. May 4, 2020).
Second, with respect to irreparable injury, the danger of COVID-19 both generally and in prisons specifically is by now well known. COVID-19 is a novel, dangerous, and extremely contagious disease with no known vaccine, cure, or reliable treatment. It spreads easily and rapidly—especially among individuals like Petitioners, who are confined in large groups and who rely on communal sleeping, dining, and bathroom facilities—and can be spread by people who are infected but asymptomatic. Courts across the country have quickly concluded that exposure to COVID19 constitutes an irreparable injury, particularly for the most vulnerable. See, e.g., Thakker v. Doll, No. 20-cv-480, 2020 WL 1671563, at *3 (M.D. Pa. Mar. 31, 2020) (“[C]ourts have specifically held that COVID-19 constitutes an irreparable harm.” (collecting cases)); Cristian A.R. v. Decker, No. 20-cv-3600-MCA, 2020 WL 2092616, at *12 (D.N.J. Apr. 12, 2020) (“Petitioners have demonstrated irreparable harm should they remain in confinement.”).
Finally, both the balance of equities and the public interest weigh heavily in Petitioners’ favor. For Petitioners, the risk of inaction cannot be overstated: because of their unique vulnerability to COVID-19 and the conditions at Fort Dix, each day they are confined increases their risk of infection, serious illness and possibly death. By contrast, Respondents’ legitimate interests can be accommodated by temporary
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enlargement of Petitioners’ custody—a mechanism that a number of courts have found to be an appropriate response to COVID-19. See, e.g., Kevin M.A. v. Decker, No. 20-cv-4593-KM, 2020 WL 2092791, at *10 (D.N.J. May 1, 2020) (finding government’s “interest can be appropriately balanced by releasing Petitioner to strict conditions including home confinement, as well as electronic and telephonic monitoring”); Wilson, 2020 WL 1940882, at *4 (“When a court exercises its power to ‘enlarge’ the custody of a defendant pending the outcome of a habeas action, the BOP maintains custody over the defendant, but the place of custody is altered by the court.”). The public is also well-served by steps that will reduce the crowding at Fort Dix, allowing greater opportunities for social distancing for the prisoners whose custody is not enlarged and decreasing the rate of a COVID-19 outbreak that also impacts correctional staff and spills out into the broader community. See, e.g., Hope v. Doll, No. 20-cv-562-JEJ, ECF no. 11 at 11 (M.D. Pa. Apr. 7, 2020).
Because Petitioners meet the requirements for a preliminary injunction, they respectfully ask that the Court take quick action to order temporary enlargement of their custody, so they can begin to practice social distancing and protect themselves against this unprecedented pandemic. Federal courts have long had “the authority to grant a temporary release from confinement” during the pendency of a petition for habeas corpus. Johnston v. Marsh, 227 F.2d 528, 531 (3d Cir. 1955). This power comes from “the inherent powers of the judiciary,” id., and “was exercised in habeas
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corpus cases pending decision on the merits.” Id. This type of bail is available where, as here, “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.” Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (collecting cases); see also Pellulo v. U.S., 487 F. App’x 1, 3 (3d Cir. 2012).
“Extraordinary circumstances” include, as with the medically vulnerable petitioners at Fort Dix, “situations involving poor health or the impending completion of the prisoner’s sentence.” Landano, 970 F.2d at 1239. While poor health is not a prerequisite, it makes the analysis that much clearer. See Lucas v. Hadden, 790 F.2d 365, 367 (3d Cir. 1986) (“[W]e do not mean to suggest that a habeas petitioner’s poor health is the only ‘extraordinary circumstance’ that may justify a grant of bail prior to disposition of the habeas petition[.]”). Similarly, Courts should consider whether a petitioner with a high probability of success on the merits would see any remedy lose effectiveness if forced to remain in confinement in the meantime, Landano, 970 F.2d at 1239, and whether “irreparable injury, injury to other parties interested in the proceeding, and the public interest” counsel in favor of granting temporary release, Armstrong v. Grondolsky, 290 F. App’x 451, 453 (3d Cir. 2008). The outbreak of COVID-19 at Fort Dix is unquestionably the sort of “extraordinary
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circumstance” justifying Petitioners’ temporary enlargement of custody—whether “to a hospital, halfway house, a person’s home, or other setting.” Resnik Decl. ¶ 29.
FACTUAL BACKGROUND A. COVID-19 Is A Dangerous And Extremely Contagious Disease,
And Is Particularly Harmful To People Over 50 And Those With Underlying Health Conditions American life has been transformed by a global pandemic of the novel coronavirus that causes COVID-19. As of May 4, 2020, the day the Petition in this action was filed, there were over 3 million reported COVID-19 cases and 238,730 confirmed deaths worldwide. Borden Decl. Ex. 1. These figures are increasing every day, and as of today, there are over 247,652 deaths worldwide.4 In the United States, as of May 4, at least 1,122,486 people were known to have COVID-19, and 65,735 people had died. Borden Decl. Ex. 2. As of today, there are 1,171,510 confirmed cases and 68,279 confirmed deaths in the United States.5 The State of New Jersey has been particularly hard hit, ranking second in the United States both in the number of people reported to have tested positive with the coronavirus and in the number of people who have died. Borden Decl. Ex. 3.
4 World Health Org., Coronavirus disease (COVID-19) Pandemic, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed May 6, 2020). 5 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last accessed May 6, 2020).
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COVID-19 spreads easily from person to person through respiratory droplets, close personal contact, and contact with contaminated surfaces and objects. Goldenson Decl. ¶ 13; Fefferman Decl. ¶ 4. Infected people can spread the virus to others even if they are asymptomatic, such that simply avoiding people who are coughing or visibly ill is an insufficient measure to avoid infection. Goldenson Decl. ¶ 28. There is no known vaccine against COVID-19 and no known medication to prevent or treat infection. Goldenson Decl. ¶ 16. The only steps individuals can take to limit the risk of infection are vigilant personal hygiene and “social distancing,” or remaining physically separated from other people. Id.
According to the CDC, people who suffer from certain underlying medical conditions face elevated risk of serious illness or death if they contract COVID-19. Borden Decl. Ex. 5. Such conditions include lung disease, moderate to severe asthma, heart conditions, hypertension, high blood pressure, kidney disease, liver disease, diabetes, compromised immune systems (such as from cancer treatment, HIV, autoimmune disease, or use of immunosuppressing medication), and severe obesity. Goldenson Decl. at ¶ 40 n.20 (listing medical conditions causing vulnerability to COVID-19). One analysis found mortality rates of 13.2% for patients with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer. Borden Decl. Ex. 6.
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COVID-19 is also especially dangerous for older people. In many patients, COVID-19 causes fever, cough, and shortness of breath. Goldenson Decl. ¶ 15. But for people over the age of fifty, shortness of breath can be fatal. Fefferman Decl. ¶ 7. Many people in higher-risk categories who develop serious illness will require advanced medical support, including specialized equipment that is in limited supply and a dedicated team of care providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists, and intensive-care physicians. Fefferman Decl. ¶ 9.
Even for patients who do not die of COVID-19, the disease can severely damage lung tissue, requiring an extensive period of rehabilitation, and in some cases causing permanent loss of respiratory capacity. Borden Decl. Ex. 8. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Borden Decl. Ex. 7. Myocarditis can affect the heart muscle and the body’s electrical system, reducing the heart’s ability to pump. Id. 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. Id.
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. Borden Decl. Ex. 8. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as
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little as two days after exposure, and their condition can seriously deteriorate in as little as five days. Borden Decl. Ex. 9.
B. Prisons Like Fort Dix Are Uniquely Ill-Suited To Adequately Manage The Risk Of Contracting COVID-19
People in so-called “congregate environments,” such as correctional facilities, face increased danger of contracting COVID-19. Fefferman Decl. ¶ 19. In such environments—where people live, eat, and sleep in close proximity—social distancing is difficult or impossible, as evidenced by the rapid spread of the virus in cruise ships and nursing homes. Borden Decl. Exs. 15–17. The danger of infection is even more acute in prisons, jails, and other detention centers, which—by design—make it impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of COVID-19 transmission. Fefferman Decl. ¶ 19. Such facilities are particularly conducive to “community spread,” where COVID-19 spreads rapidly within a community even though the source of the infection is unknown. Id.
Correctional settings also increase the risk of rapid spread of an infectious disease because of the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of consistently maintaining distance from others. Borden Decl. Ex. 18. The CDC thus urges prison administrators to prevent overcrowding of correctional and detention facilities during a community outbreak. Borden Decl. Ex. 19. CDC guidance emphasizes that
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social distancing is “a cornerstone of reducing transmission of respiratory disease such as COVID-19,” and calls not only for social distancing, but also for isolating detainees and staff who have (or are suspected of having) COVID-19 from those who do not have (or presumably do not have) the virus. Borden Decl. Ex. 19.
Correctional facilities, because of their design and limited resources, will inevitably struggle to implement these preventive strategies without a reduction in prison populations. Such facilities frequently lack sufficient medical supplies for the population, and, in times of crisis, medical staff may cease coming to the facilities. Goldenson Decl. ¶ 36; Fefferman Decl. ¶ 22. Hot water, soap, and paper towels are often in limited supply. Goldenson Decl. ¶ 21. Incarcerated people themselves, rather than professional cleaners, are often responsible for cleaning the facilities and often are not given appropriate supplies. Goldenson Decl. ¶ 24. The bottom line is that there are more people, all susceptible to infection, congregated together in a confined location—and thus fighting the spread of an infection is nearly impossible.
Accordingly, correctional public health experts recommend the release from custody of people most vulnerable to COVID-19. Fefferman Decl. ¶¶ 17–26. Exercising authority to enlarge custody or release people outright protects those with the greatest vulnerability to COVID-19 from transmission of the virus, and it also allows for greater risk mitigation for all people held or working in a prison, jail, or detention center. Fefferman Decl. ¶ 25. Release of the most vulnerable people from
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custody also reduces the burden on the region’s health-care infrastructure by lowering the chances that an overwhelming number of people will become seriously ill at the same time. Fefferman Decl. ¶ 24. As leading pandemic-preparedness expert, Professor Nina Fefferman, observed: “Epidemiologically, the only way to meaningfully reduce the risks posed to the entire population—prisoners, staff, and public—is to drastically reduce the prison population.” Fefferman Decl. ¶ 25.
C. The Design of Fort Dix Makes Social Distancing Impossible As correctional-health expert Dr. Joe Goldenson explains, Fort Dix’s communal set-up makes social distancing “impossible.” Goldenson Decl. ¶ 36. Respondent Ortiz conceded as much when, on April 11, 2020, he issued a “Notice to Inmates” instructing them to wear surgical masks “[s]ince social distancing is not possible in this environment[.]” Scronic Decl. ¶ 11. Fort Dix is a low-security facility with an adjacent minimum-security camp, and the BOP has designated the prisoners held there with some of the lowest security statuses of people in BOP custody. Borden Decl. Exs. 52, 54. The main facility currently holds more than 2,700 people, and the Camp has, until recently, held approximately 230 people. All of the prisoners at Fort Dix face heightened risk from COVID-19 because of Fort Dix’s design. Except for disciplinary and medical isolation, Fort Dix has no separate oneperson housing cells. Borden Decl. Ex. 55. Instead, people confined at Fort Dix are housed close together in group quarters. Scronic Decl. ¶ 4. Those at the Camp are
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divided into two communal dorms, referred to as A-wing (or A-unit) and B-wing (or B-unit). Id. Each wing has typically housed approximately 150 people in a grid of bunk beds two to three feet apart. Id. People in the bunks are so close that they can reach out and touch the people in the bunks on both sides. Id. At least in some areas, the bunks appear to be arranged three-deep: people sleep not only with bunks to their left and right, but also at their head and feet. Id. Social distancing, as a matter of dorm design, is simply impossible at the Camp.
The main facility is divided into East and West Compounds, with approximately five buildings on each side that each can house more than 300 people. Wragg Decl. ¶ 9. The buildings are three stories high and consist mostly of 12-person rooms, with a limited number of two-person rooms. Id. The 12-person rooms can be as small as 430 square feet. Id. ¶ 10. Within that space are squeezed six twoperson bunk beds, 12 lockers, and a card table. Id. Prisoners maintain free movement within the building, sharing common TV rooms, computers, telephones, and bathrooms. Bogdan Decl. ¶ 7. Even the few prisoners in two-person rooms encounter hundreds of other people in their building each day when they use the communal areas—including when they pick up meals simultaneously. Scronic Decl. ¶ 9. Prisoners at the Camp are exposed to others constantly, since they live in group dorms.
The bathrooms at Fort Dix are also communal. Id. ¶ 6. In both the main facility and the Camp, each person shares a limited number of sinks, showers, and
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toilets with dozens of others within just feet of them. Bogdan Decl. ¶ 7; Scronic Decl. ¶ 6. In the Camp, for example, a single bathroom with shared sinks and toilets is used by some 150 people. Scronic Decl. ¶ 6. Social distancing in this environment simply cannot be achieved.
D. Fort Dix Has Proven Itself Unable To Take Proper Precautions Fort Dix’s actions to protect prisoners from COVID-19 have been slow and inadequate. Although the BOP purported to impose a nationwide quarantine on April 1, Fort Dix failed to impose effective quarantine measures. See Wragg Decl. ¶ 17; Scronic Decl. ¶ 8. The prison did not distribute masks to people in its custody until early April, and even then not all prisoners received masks. Scronic Decl. ¶ 10. Correctional officers, who live throughout the greater Philadelphia and central New Jersey area, continue to move in and out of Fort Dix each day without sufficient medical screening or protective equipment. Wragg Decl. ¶ 15. To this day, correctional officers move freely between the Camp and the main facility, potentially spreading the virus through various areas of the prison. Id. Fort Dix also continues to cross-assign prisoners between wings of the Camp and within single buildings in the main facility. Scronic Decl. ¶ 16. Fort Dix’s failure to contain the movement of prisoners and staff throughout otherwise separate areas of the facility ensured that, once infection arrived, it would not be confined to particular areas, but would spread rapidly to other areas—as in fact happened. Scronic Decl. ¶¶ 16–22.
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Fort Dix’s inconsistent approach to face masks is another example of Respondents’ inability to manage COVID-19. On March 30, the BOP reported that a staff member at Fort Dix had tested positive for COVID-19. Yet that same day, Respondent Ortiz sent a notice prohibiting prisoners from “enter[ing] the kitchen on either the East or West compounds for meals with their faces concealed with makeshift masks due to COVID-19 concerns.” Scronic Decl. ¶ 8. For a full week afterwards, staff told prisoners they could not wear masks not issued by the prison and ordered prisoners to remove any masks they made for themselves. Scronic Decl. ¶¶ 7, 10. By April 7, the BOP reported the first positive COVID-19 test result for a prisoner at Fort Dix. Scronic Decl. ¶ 10. On April 9, it reported a second positive. Id. That day, a memorandum from the facility medical staff announced: “a second [C]amp offender has been determined to be positive for COVID-19 and a third Camper has been isolated for evaluation of symptoms and is awaiting COVID-19 test results. . . . [I]t is strongly recommended that you d[on] your surgical mask upon issue.” Id. (emphasis added). By April 11, the BOP was reporting four positive tests among prisoners. Id. Respondent Ortiz issued a notice that read: “In order to maintain the health of staff and inmates, the following is expected from all inmates: wear your surgical masks! Since social distancing is not possible in this environment, masks will help keep you and others from spreading viruses.” Id. ¶ 11. By April 16, the BOP was reporting six positive cases among prisoners, and
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Respondent Ortiz directed that it was mandatory to use “face coverings provided by staff.” Id. ¶ 13. By then, it was too late: hundreds of prisoners and staff had surely already been exposed.
On April 8, Fort Dix converted the B-wing of the Camp into a makeshift quarantine for 63 people who believed they were being considered for potential release on home confinement pursuant to the CARES Act. Scronic Decl. ¶ 16. Those 63 people were drawn from both A and B-wings. The remaining 160 or so people in the Camp were packed into A-wing, with no efforts to test them nor any attempt to limit mingling of people who had previously not been exposed. Id. From that point forward, prisoners in A-wing and B-wing went at different times to get their food from the Camp cafeteria and use the common rooms, but they saw no indication that the facilities were being thoroughly cleaned between uses. Scronic Decl. ¶ 20.
During mid to late April, prisoners observed others in their shared bunk spaces exhibiting symptoms of COVID-19 in both A-wing and B-wing, including coughing, feverish sweating, vomiting, and loss of consciousness. Scronic Decl. ¶¶ 16– 22. Many of these likely infected prisoners were removed from the Camp—after they no doubt exposed the others around them to COVID-19—and brought to another location (Building 5851 in the West compound). Bogdan Decl. ¶ 11.
Fort Dix has not meaningfully changed conditions in the main facility buildings. The majority of people in the main buildings are still housed in 12-person
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rooms where social distancing is impossible. Scronic Decl. ¶ 8. Moreover, Fort Dix made no effort to stagger use of the common areas. For example, common bathrooms are still used, ensuring that people from one 12-person room regularly encounter others from the same building. Id. Additionally, Respondents took no action to limit access to, or impose shift-based use of, common television rooms, computers, and phones. Id. As a result, large groups of prisoners congregate regularly in those rooms to this day in conditions conducive to spreading COVID-19.
Fort Dix has stopped communal meals in the dining hall, instead requiring prisoners to pick up “grab and go” meals from the dining hall. Scronic Decl. ¶ 9. But even then, prisoners must go to and from the dining hall together to pick up their food along with all 200 to 300 people in their building. Id. The prisoners crowd into the building’s entryway and adjoining hallway as they wait to enter and leave, allowed only five minutes to enter the building and five minutes to exit. Id. Three times per day, hundreds of people congregate in this way. Id. And after picking up their meals, prisoners still eat in each other’s rooms or in the TV rooms. Id.
Fort Dix has also failed to provide prisoners with adequate cleaning supplies. For weeks, Fort Dix maintained its practice of requiring people in custody to buy soap through commissary to wash their hands. Wragg Decl. ¶ 11; Scronic Decl. ¶ 6. Respondents exacerbated this problem by limiting commissary for people in the main facility and terminating it entirely for people at the Camp, requiring those at
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the Camp to rely on the scant supplies provided by Fort Dix. Scronic Decl. ¶ 6. Fort Dix then took weeks to install soap dispensers in some bathrooms. Wragg Decl. ¶ 11. And even where there were soap dispensers, many remained empty as of the end of March; in at least one building, notices were posted urging prisoners to donate their own soap to fill the dispensers. Id. Even today, many of the dispensers are empty because any soap provided by the prison runs out immediately. Id. People confined in the main facility are now provided two small bottles of soap per month— barely more than what a person can carry on an airplane. Anyone unable to afford additional soap at the commissary must rely on this meager ration to shower, wash their hands throughout the day, and do their best to disinfect surfaces in their shared living spaces. Id. Beyond the belated and limited provision of masks, prisoners are given no other personal protective equipment or cleaning supplies. They have not been provided gloves, detergents, or other sanitizing agents, and some people rely on toilet paper and water to wipe down surfaces they touch. Wragg Decl. ¶ 17.
Rather than acknowledge that they cannot manage the COVID-19 outbreak at Fort Dix, Respondents have refused to exercise their authority to release people at high risk from infection, which would protect both the most vulnerable individuals and reduce exposure risk for anyone left behind. Scronic Decl. ¶ 28; Bogdan Decl. ¶ 12. Petitioners have been told their requests for home confinement are denied on
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bases not stated in the Attorney General memos, which directed the BOP to “immediately maximize appropriate transfers to home confinement,” Borden Decl. Ex. 46, including those who have not served 50 percent of their sentence. See Scronic Decl. ¶ 28; Bogdan Decl. ¶ 12.
Today—more than seven weeks after the WHO declared a global pandemic, a month after Fort Dix’s first confirmed positive case, and 26 days after the Attorney General directed the BOP to immediately begin releasing people to home confinement from prisons with outbreaks—the number of prisoners that Fort Dix has used its power to release into home confinement remains zero. Pet. ¶ 99. Meanwhile, and inevitably, the number of infected people at Fort Dix continues to climb, most recently to an official tally of 43 prisoners and staff testing positive. Borden Decl. Ex. 31. But, given COVID-19’s highly contagious nature and the BOP’s limited administration of tests, the true number of infections is surely exponentially higher. Borden Decl. Ex. 56. As Dr. Goldenson warns: “The infection rate will increase substantially before it starts to diminish without major interventions. The number at risk for death is substantial.” Goldenson Decl. ¶ 36.
E. Petitioners Are At Grave Risk Of Harm Because Of Their Unique Vulnerability To Serious Illness Or Death From Contracting COVID-19
COVID-19 poses imminent and serious risk to the Petitioners because of their age, their health, or both. Petitioner Troy Wragg is classified as a BOP “chronic
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care inmate.” Wragg Decl. ¶ 2. He has epilepsy and suffers from grand-mal seizures that can be so violent and debilitating that he has broken bones during them. Id. ¶ 3. He has had more than a dozen seizures while at Fort Dix, including most recently on April 26. Id. ¶ 4. In some patients, COVID-19 makes individuals more prone to such seizures. Id. ¶ 5. In addition, Petitioner Wragg has hypertension and a heart condition, for which he takes three daily medications. Id. ¶ 6. He had a heart attack in 2012. Id. ¶ 6. Finally, he is vulnerable to COVID-19 as a person with Myasthenia Gravis, a chronic autoimmune neuromuscular disease. Id. ¶ 7. His medical conditions make him especially vulnerable to COVID-19.
Petitioner Michael Scronic has a history of skin cancer, childhood asthma and steroidal medication use, and abnormal heart symptoms. Scronic Decl. ¶ 2. He had a tumor removed from his chest in 1991 and was instructed to return to a pathologist periodically, and in 2018, had Mohs Micrographic surgery to remove another tumor on his chest. Id. Pathologists diagnosed him with skin cancer. Id. Throughout childhood, he had recurring serious asthma attacks, had to have the house sterilized, slept with a vaporizing tent over his bed, and for years used steroidal inhalers. Finally, his medical records from his last physical before his incarceration show a heart murmur, heart palpitations, elevated blood pressure, and shortness of breath. Id. All these conditions make Petitioner Scronic especially vulnerable to COVID-19.
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Petitioner Leonard Bogdan, at 68 years old, is vulnerable to COVID-19 from his age alone. Bogdan Decl. ¶ 2. Additionally, he has serious medical conditions that classify him as a BOP “chronic care inmate.” Id. Since his incarceration at Fort Dix, he developed a nodule on his thyroid, diagnosed as potentially cancerous, which causes a rapid heart rate for which he takes twice daily medications. Id. He has heart disease—“bifascicular bundle branch block”—which impacts the valves of his heart, as well as hypertension, high cholesterol, and “actinic keratosis” skin cancer. Id. Finally, he has extensive physical disability due to a severe case of scoliosis, which causes contortion of his ribcage and impacts his organs. Id. As a result, he has chronic shortness of breath and displacement of the kidneys. Id. For a combination of these conditions, at least four times per year he receives treatment at various regional hospitals and specialists. Id. ¶ 3. The combination of his age and extensive medical issues makes him especially vulnerable to COVID-19.
Finally, Petitioner Eliezer Soto-Concepcion takes daily medications for a heart condition and high blood pressure. Soto-Concepcion Decl. ¶ 2. He also has a nervous system condition that causes his hands to shake and has been told he has clogged arteries. Id. Over the last 13 years, he has been hospitalized three times following heart attacks. Id. As a result of these conditions, he is especially vulnerable to COVID-19.
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ARGUMENT I. THE COURT SHOULD TEMPORARILY ENLARGE
PETITIONERS’ CUSTODY To obtain a preliminary injunction, a plaintiff “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “The standard for granting a temporary restraining order is the same as the standard for granting a preliminary injunction.” Kongtcheu v. Secaucus Healthcare Ctr., LLC, 2014 WL 2436048, at *2 (D.N.J. May 30, 2014). All four factors weigh strongly in favor of Petitioners. Courts across the country have recognized the unprecedented nature of COVID-19 and issued preliminary injunctions or temporary restraining orders for the immediate release of medically vulnerable people in prisons or other forms of detention, including in this District. See, e.g., Cristian A.R., 2020 WL 2092616, at *14–15 (ordering immediate release of medically vulnerable ICE detainees from Hudson County Correctional Facility (“Hudson”) and Bergen County Jail (“Bergen”) in New Jersey); Durel B. v. Decker, 20-cv-3430-KM, 2020 WL 1922140, at *1 (D.N.J. Apr. 21, 2020) (McNulty, J.) (ordering release for medically vulnerable detainee at Hudson); Leandro R.P. v. Decker, 20-cv-3853-KM, 2020 WL 1889791, at *9 (D.N.J. Apr. 17, 2020) (McNulty, J.) (same); Anthony W. v. Anderson, 20-cv-
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3704-BRM, 2020 WL 2121118, at *11 (D.N.J. Apr. 17, 2020) (Martinotti, J.) (ordering release for medically vulnerable detainees at Essex County Correctional Facility (“Essex”) and Elizabeth County Detention Center in New Jersey); Rafael L.O. v. Tsoukaris, No. 20-cv-341 (JMV), 2020 WL 1808843, at *8–9 (D.N.J. Apr. 9, 2020) (Vazquez, J.) (ordering release for medically vulnerable detainees at Essex); Thakker, 2020 WL 1671563, at *9–10 (ordering release at Pennsylvania facilities); Basank v. Decker, 2020 WL 1481503, at *1 (S.D.N.Y. Mar. 26, 2020) (ordering release at Hudson and Bergen); Avendaño Hernandez v. Decker, 20-cv-1589 (JPO), 2020 WL 1547459, at *4 (S.D.N.Y. Mar. 31, 2020) (ordering release at Hudson); Order at 1–2, Grant v. Decker, 20-cv-2946-AKH, ECF No. 18 (S.D.N.Y. Apr. 17, 2020) (ordering release at Hudson); Barbecho v. Decker, 20-cv-2821-AJN, 2020 WL 1876328, at *1 (S.D.N.Y. Apr. 15, 2020) (ordering release at Bergen); Coronel v. Decker, 2020 WL 1487274, at *1 (S.D.N.Y. Mar. 27, 2020) (ordering release including at Bergen); Castillo v. Barr, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020) (ordering release at California facility); Amended Opinion and Order at 44– 45, Malam v. Adducci, 20-10829 (JEL), 2020 WL 1672662, at *14 (E.D. Mich. Apr. 6, 2020) (ordering release at Michigan facility); Amaya-Cruz v. Adducci, 20cv-789, 2020 WL 1903123, at *2–3 (N.D. Ohio Apr. 18, 2020) (ordering release at Ohio facility).
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Here, because Petitioners meet the criteria for emergency relief, they respectfully ask that this Court join this growing consensus and issue a preliminary injunction ordering immediate, temporary enlargement of custody.
A. Petitioners’ Eighth Amendment Claim Is Likely To Succeed On The Merits
“It is cruel and unusual punishment to hold convicted criminals in unsafe conditions.” Helling, 509 U.S. at 33 (internal quotation marks omitted). The Eighth Amendment of the United States Constitution guarantees all incarcerated persons “humane conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). “Deliberate indifference to [the] serious medical needs of prisoners” runs afoul of this essential guarantee. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). The Constitution is thus violated when the evidence “show[s] (i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
The ongoing outbreak of COVID-19 at Fort Dix presents exactly the sort of dangerous situation “for which the Eighth Amendment require[s] a remedy.” See Helling, 509 U.S. at 33. The continued incarceration of medically vulnerable people at Fort Dix, despite ongoing exposure to a ravaging infection that causes permanent injuries and death, is the exact “unreasonable risk of serious damage to [a prisoner’s]
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future health” that the Eight Amendment prohibits. Id. at 35. In Helling, the Supreme Court explained that an unconstitutional level of risk existed when prisoners were confined with other prisoners who “had infectious maladies such as hepatitis and venereal disease.” Id. at 33. As the Court explained, it did not matter that some prisoners were not yet infected. “We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health problems but may 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. The Court made clear its rulings would apply with equal (if not greater) force in cases where a communicable disease like COVID-19 had breached prison walls like at Fort Dix. “[P]rison officials,” the Court observed, are not permitted to ignore “the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Id.
1. This Court Has Jurisdiction Under § 2241 Because Petitioners Challenge The Fact Of Their Confinement
Petitioners seek redress under § 2241 because it is the fact of their confinement that creates the constitutional violation. This Court has jurisdiction to hear petitions for habeas corpus alleging “custody in violation of the Constitution or laws or treaties of the United States,” such as Eighth Amendment. 28 U.S.C. § 2241(c)(3). “[H]abeas has been found to be the proper vehicle for challenging ‘the fact or length of confinement[.]” Camancho Lopez v. Lowe, No. 3:20-cv-563, 2020
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WL 1689874, at *4 (M.D. Pa. Apr. 7, 2020), as amended (Apr. 9, 2020) (quoting Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993)). Because Petitioners ultimately seek release as a remedy for custody that violates the Eighth Amendment, they challenge the fact of their confinement, rather than the conditions of their confinement. The Complaint therefore sounds in habeas corpus. As the Sixth Circuit confirmed just days ago, in denying a motion to stay an order under § 2241 granting enlargement to medically vulnerable federal prisoners, “[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.” Order at 3, Wilson v. Williams, No. 20-3447, ECF No. 23-1 (6th Cir. May 4, 2020).6
Petitioners’ claim here is thus precisely the sort contemplated by § 2241. Challenges to the fact of confinement, seeking release, fall within “the heart of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). The key distinction between actions properly brought in habeas corpus and those properly brought as a civil rights action under 42 U.S.C. Section 1983 is that habeas actions “involve
6 In Livas v. Myers, No. 20-cv-0422, 2020 WL 1939583 (W.D. La. Apr. 22, 2020), a District Court found that, in the Fifth Circuit, no cases “allow[ed] conditions of confinement claims to be brought under § 2241,” though the court left open that such a claim was “theoretically possible.” Id. at *8. Nevertheless, the District Court denied habeas relief in part because “Petitioners do not and cannot contend that their imprisonment or custody itself is unlawful.” Id. at *7. Livas is not controlling and is distinguishable, as Petitioners here very much contend that their continued imprisonment at Fort Dix is unconstitutional.
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someone’s liberty, rather than mere civil liability.” Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998) (citations omitted).
Accordingly, although here Petitioners challenge the fact of their confinement, the Court would have jurisdiction even if it construed the challenge as one to conditions of custody. Petitions under § 2241 have long provided a remedy for prisoners to challenge conditions of custody that affect “the execution of [a federal inmate’s] sentence.” Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012) (quoting Woodall v. Federal Bur. of Prisons, 432 F.3d 235, 241 (3d Cir. 2005); see also Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (defining challenges to execution of sentence properly filed under § 2241 to include challenges to prison conditions). COVID-19 affects the fact and execution of Petitioners’ sentences in profound ways. And because the conditions amount to unconstitutional custody, Petitioners ultimately seek release rather than merely transfer within the BOP. Petitioners are thus unlike the petitioner in Cardona, who was denied relief because he did not challenge the fact of his confinement or seek relief that would affect the duration of his confinement. See Cardona, 681 F.3d at 537. The analogous case is Woodall, which held that a petition seeking transfer to a halfway house properly arose in habeas because it affected the location of the sentence and fact of confinement. Woodall, 432 F.3d at 238. However the Court construes Petitioners’ claim for release, then, that claim is cognizable under § 2241.
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2. Petitioners Have Shown That COVID-19 Is A Serious Medical Crisis
The risk of contracting COVID-19 constitutes an “unsafe, life-threatening condition” for Petitioners and the Class. Helling, 509 U.S. at 33. The Petition and accompanying declarations detail the incredible danger that the virus poses. COVID-19 is a “serious disease” with “up to 35 times the fatality associated with influenza infection.” Goldenson Decl. ¶ 8. Furthermore, COVID-19 is extremely contagious. Indeed, the virus’ infection rate is estimated at “2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons.” Id. at ¶ 14. Only the Spanish Flu of 1918 has been estimated to have a higher infection rate. Id. Part of the reason for COVID-19’s high infection rate is the fact that it is easily spread by individuals who do not exhibit any symptoms. Id. at ¶ 14. Thus, even prisoners who appear healthy may transmit the disease to large groups of people. Id. For medically vulnerable people, such exposure carries enormous risk. Id. at ¶ 40. People face a fatality rate rising above 5% when they have “preexisting medical conditions including cardiovascular disease, respiratory disease, diabetes, and immune compromise.” Id. ¶ 9. Indeed, courts have noted that medically vulnerable people “may have up to a 20% chance of death if they contract COVID19.” Cristian A.R., 2020 WL 2092616, at *10; see also Jose D. M. v. Barr, No. CV
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20-4031 (KM), 2020 WL 1969893, at *5 (D.N.J. Apr. 24, 2020) (same). Put differ-
ently, the odds of survival for vulnerable prisoners “are worse than a game of ‘Rus-
sian roulette.’” Cristian A.R., 2020 WL 2092616, at *10.
For these reasons, courts within the Third Circuit and across the country have
recognized that COVID-19 presents a substantial risk to health and wellbeing of
prisoners. See, e.g., Thakker, 2020 WL 1671563 at *8 n.15 (“COVID-19 has been
shown to spread in the matter of a single day and would well prove deadly for Peti-
tioners. Such a risk is objectively ‘sufficiently serious.’”); Basank v. Decker, 2020
WL 1481503, at *5 (same); Hernandez, 2020 WL 1547459, at *2 (same); Coronel,
2020 WL 1487274, at *4 (same). As explained by one District Court:
Petitioners [medically vulnerable prisoners] obviously satisfy [the substantial harm] component. At this moment a deadly virus is spreading amongst [the prison’s] population and staff. For infected inmates, the virus can lead to pneumonia. In the worse pneumonia cases, COVID-19 victims suffer diminishing oxygen absorption, with resulting organ failure leading to death. Victims choke to death. While not every inmate who contracts the virus will die, [medically vulnerable prisoners] are at a much greater risk of doing so. They have a very serious medical need to be protected from the virus. Wilson, 2020 WL 1940882, at *8. All of these considerations apply equally to the
risk of COVID-19 at Fort Dix. Petitioners thus have a substantial likelihood of suc-
cess in ultimately proving that COVID-19 poses a constitutes a “unsafe, life-threat-
ening condition.” Helling, 509 U.S. at 33.
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3. Petitioners Have Shown Respondents’ Deliberate Indifference To The Serious Risk Created By The COVID19 Pandemic
Petitioners also have a substantial likelihood of success in showing that Respondents have been deliberately indifferent to the serious medical needs of medically vulnerable prisoners at Fort Dix. Deliberate indifference exists when the government has “knowledge of a serious risk of harm” and yet “fail[s] to take reasonably available measures to reduce or eliminate that risk.” Berg v. Cty. of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (citations omitted).
Here, Respondents have been on notice for months of the extraordinarily dangerous risk created by the COVID-19 pandemic. On March 9, in response to the then-emerging coronavirus outbreak, the Governor of New Jersey signed an Executive Order declaring a State of Emergency and a Public Health Emergency in New Jersey. Borden Decl. Ex. 10. On March 22, in response to the “dangers posed by the Coronavirus,” the New Jersey Supreme Court ordered the presumptive release of all people currently serving a county jail sentence, an order that resulted in the release of hundreds of people. In the Matter of the Request to Commute or Suspend County Jail Sentences, Consent Order, No. 084230 (N.J. Mar. 22, 2020), available at https://www.njcourts.gov/notices/2020/n200323a.pdf. And, beginning in late March, Attorney General Bill Barr began to issue guidance to the Bureau of Prisons regarding the rapidly accelerating COVID-19 crisis. As the Attorney General noted,
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“we are experiencing significant levels of infection at several of our facilities.” Borden Decl. Ex. 46. These facts, along with others addressed in the Petition, show Respondents were well aware of the serious risk posed by COVID-19, having been alerted to it by the CDC, the Attorney General, BOP guidance, widespread news reporting, and the ongoing outbreak at BOP facilities including Fort Dix itself.
The Petition also makes clear that the Respondents are unable to take steps necessary to protect medically vulnerable prisoners from the risk of COVID-19 infection. In his April 3 memorandum, Attorney General Barr identified the most reasonable measure to eliminate the risk of COVID-19 infections: release of medically vulnerable prisoners to home confinement. Id. As the Attorney General explained, “[w]e have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.” Id. Recognizing that “it is clear that time is of the essence,” the Attorney General also directed Respondents to “implement this Memorandum as quickly as possible.” Id. In making this determination, the Attorney General directed Respondents to assess a prisoner’s fitness for release based on a selection of criteria identified in a prior memorandum, which included the “age and vulnerability of the inmate to COVID-19” as well as the “security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities.” Id.
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Even in the face of this guidance from the Attorney General, Respondents have not taken steps sufficient to protect Petitioners from the grave risks that are present every moment they remain at Fort Dix. Respondent Ortiz has recklessly failed to follow or implement CDC guidance or directives from Attorney General Barr or the BOP. Despite the Attorney General’s clear directive that home confinement should occur “as quickly as possible,” and the fact that Fort Dix houses numerous medically vulnerable prisoners designated as low or minimum custody status, Fort Dix has not released any prisoners to home confinement. Pet. ¶ 99. There is thus a substantial likelihood that Petitioners will be successful in showing Respondents were deliberately indifferent to the risk posed by COVID-19 to vulnerable prisoners.
B. Petitioners Will Suffer Irreparable Harm Absent A Preliminary Injunction
There can be little doubt that continued imprisonment at Fort Dix will “more likely than not” result in irreparable harm to Petitioners. Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017); see also Thakker, 2020 WL 1671563, at *3 (collecting cases recognizing the irreparable harm posted by COVID-19).
COVID-19 is a highly contagious virus that is estimated to be 35 times deadlier than the seasonal flu. Goldenson Decl. ¶ 8. The virus is typically accompanied by fever, cough, and shortness of breath. Goldenson Decl. ¶ 15. But for medically
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vulnerable people, the virus is often much worse. Fefferman Decl. ¶¶ 17–26. Infection can cause permanent loss of respiratory capacity, damage to the heart and other organs, and death. Borden Decl. Ex. 8. As such, exposure to the virus is precisely the type of “harm which cannot be redressed by a legal or an equitable remedy following a trial.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989); see also Johnson v. Wetzel, 209 F. Supp. 3d 766, 781 (M.D. Pa. 2016) (noting that the deterioration of a prisoner’s health constitutes “harm of such an irreversible character that prospective judgment would be inadequate to make the moving party whole”).
The risk of irreparable harm that the virus poses to medically vulnerable people is exacerbated at Fort Dix. Goldenson Decl. ¶ 36; Fefferman Decl. ¶ 22. Indeed, the conditions inherent in detention facilities have been described as “‘ideal incubation conditions’ for COVID-19.” Thakker, 2020 WL 1671563, at *5. And because of its structure, Fort Dix is even more dangerous than many other federal prisons. Borden Decl. Exs. 54, 55. Lodging is in dorms or in 200 to 300-person buildings, which requires prisoners at the Camp and in most of the main facility rooms to sleep in bunks several feet away from one another. Scronic Decl. ¶ 4; Bogdan Decl. ¶ 7. Bathrooms, TV rooms, and other spaces beyond the dorms are communal. Bogdan Decl. ¶ 7. Compounding the structural problems at Fort Dix is its general lack of necessary supplies. Respondents have not only failed to make personal protective
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equipment available; they have failed to provide for prisoners’ basic hygiene. Wragg Decl. ¶¶ 11, 77; Scronic Decl. ¶ 6. It is impossible for even the most careful prisoners at Fort Dix to protect themselves.
Given the close quarters, the high rate of COVID-19 community spread, Petitioners’ unique vulnerability on account of their age and/or medical conditions, and Respondents’ inability to change key factors of custody at Fort Dix, “[i]t is more than mere speculation that the virus will continue to spread and pose a danger to inmates” if immediate action is not taken. Wilson, 2020 WL 1940882, at *9. As such, Petitioners’ claim that they are detained in poor health while facing “the inexorable progression of a global pandemic creeping across our nation” is one that is “rooted in imminent, irreparable harm.” Thakker, 2020 WL 1671563, at *3. Indeed, “[t]here can be no injury more irreparable.” Id. a *4.
C. Equity And The Public Interest Favor Petitioners Finally, both the balance of equities and the public interest weigh heavily in Petitioners’ favor. First, Petitioners’ requested relief of temporary enlargement of custody is the only feasible way to protect Petitioners from the “COVID-19 deathtrap” that Fort Dix has become. Goldenson Decl. ¶ 36. As discussed above, Respondents cannot meaningfully mitigate the imminent and irreparable harm that COVID-19 presents to Petitioners; Fort Dix’s physical design and current population size make social
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distancing and self-quarantining—the only effective means of preventing COVID19 transmission—impossible. Scronic Decl. ¶ 4; Bogdan Decl. ¶ 7. Critically, this requested relief would not harm any of Respondents’ legitimate interests. BOP classifies Petitioners as low- and minimum-custody level, indicating that they pose little threat to public safely. Wragg Decl. ¶ 1; Scronic Decl. ¶ 1; Bogdan Decl. ¶ 1; SotoConception Decl. ¶ 1; see also Thakker, 2020 WL 2025384 at *9–10 (recognizing the “weighty public interest in preventing future crime,” but finding the petitioner presented “very little risk to the public good in his continued release”). Moreover, any such risk can be adequately protected through the Court’s imposition of specific, reasonable conditions of release. Cristian A.R., 2020 WL 2092616 at *13 (concluding that the government’s “legitimate interest in ensuring that Petitioners do not flee and in protecting the public” would be adequately addressed “in fashioning appropriate conditions of release for each prisoner”); Leandro R.P., 2020 WL 1899791 at *8–9 (finding same government interest “can be appropriately addressed by releasing Petitioner to home confinement and subject to electronic monitoring”); Kevin M.A., 2020 WL 2092791, at * 10 (finding government’s and immigration detainee’s “interest can be appropriately balanced by releasing Petitioner to strict conditions including home confinement, as well as electronic and telephonic monitoring”). The balance of equities thus strongly tips in Petitioners’ favor.
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Second, Petitioners’ requested relief furthers the public interest by vindicating Petitioners’ constitutional rights. Petitioners have demonstrated a substantial likelihood that Respondents’ inability to contain COVID-19 within Fort Dix constitutes deliberate indifference in violation of the Eighth Amendment, and “it is always in the public interest to ensure that any prisoner litigation affecting fundamental liberty interests comport with the requirements of due process.” Boone v. Brown, No. 05cv-750-AET, 2005 WL 2006997, at *15 (D.N.J. Aug. 22, 2005) (emphasis added).
Third, Petitioners’ requested relief additionally furthers the public interest by providing public health benefits to Fort Dix staff and to the community at large. Removing Petitioners from Fort Dix would “provid[e] more space for effective social distancing,” thereby impeding the transmission of COVID-19 to remaining prisoners and staff members. Order at 11, Hope v. Doll, No. 20-cv-562-JEJ, ECF No. 11 at 11 (M.D. Pa. Apr. 7, 2020) (Jones, J.). This, in turn, would render local hospitals “less overwhelmed by potential [Fort Dix prisoner] COVID-19 cases” and reduce the “risk that [Fort Dix] staff will carry the virus into their homes and communities.” Id. at 13; see also Goldenson Decl. ¶ 36 (absent changes, “the infection in FCI Fort Dix would not stay limited to the facility, but would worsen infection rates in the broader community.”). These benefits are clearly in the public’s best interest. Thakker, 2020 WL 1671563 at *9 (“Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and the release of [] fragile
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Petitioners from confinement is one step further in a positive direction.”). Enlargement of custody here is thus in the public interest. II. THE COURT SHOULD ORDER RELIEF ON A CLASS-WIDE BASIS
Petitioners may pursue habeas corpus relief on behalf of the Class because they assert common facts in support of a request for declaratory and injunctive relief. Although “the usual habeas corpus case relates only to the individual petitioner and to his unique problem, ” Mead v. Parker, 464 F.2d 1108, 1112-1113 (9th Cir. 1972), “there can be cases, and this is one of them, where the relief sought can be of immediate benefit to a large and amorphous group. In such cases, it has been held that a class action may be appropriate,” id. at 1113. While actions seeking damages may not be suited for class habeas petitions, actions seeking solely declaratory and injunctive relief, including transfer to home confinement, fit the purposes of habeas class petitions. See Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973). Class habeas petitions especially suit circumstances where ruling on common questions of law would apply across the class and where requiring individual petitions would result in needlessly duplicative litigation. See Streicher v. Prescott, 103 F.R.D. 559, 561–62 (D.D.C. 1984).
The Court need not wait to make a class certification determination before ordering emergency relief on a class-wide basis. Gooch v. Life Investors Ins. Co. of
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Am., 672 F.3d 402, 433 (6th Cir. 2012) (“[T]here is nothing improper about a preliminary injunction preceding a ruling on class certification”); see also Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4 (9th Cir. 2020) (“The government does not challenge the district court’s provisional certification of the class for purposes of the preliminary injunction. We have approved provisional class certification for purposes of preliminary injunction proceedings.”); Lee v. Orr, 13-cv-8718-SJC, 2013 WL 5490577 at *2 (N.D. Ill. Dec. 10, 2013) (“District courts have the power to order injunctive relief covering potential class members prior to class certification. . . . The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.” (internal quotation marks omitted)). Time is of the essence, and the Class here meets the Rule 23(a) factors for treatment as a conditional class.
First, the Class is numerous. Fed. R. Civ. P. 23(a)(1). Although only Respondents know the true number of medically vulnerable prisoners at Fort Dix, they very likely number in the many hundreds.
Second, with regard to commonality, Fed. R. Civ. P. 23(a)(2), Petitioners’ claims “depend upon a common contention” that is “capable of classwide resolution,” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011): whether Respondents’ failure adequately to protect prisoners at Fort Dix violates the Eighth Amendment. Cf. Farmer, 511 U.S. at 843–44 (prison officials cannot “escape
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liability for deliberate indifference” simply because they cannot “guess beforehand precisely who” might be harmed); Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (similar).
Third, Petitioners’ claims are typical of the Class, Fed. R. Civ. P. 23(a)(3), because the claims “arise[] from the same . . . practice or course of conduct that gives rise to the claims of other class members” and are “based on the same legal theory.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007).
Finally, Petitioners satisfy adequacy. Fed. R. Civ. P. 23(a)(4). They are “part of the class and possess the same interest and suffer the same injury as the class members.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625–26 (1997) (internal quotation marks omitted). All medically vulnerable prisoners at Fort Dix face a common harm, caused by Respondents’ deliberate indifference, and all have a common interest in seeing that harm remedied. Nor should the Court have “concerns as to the competency of class counsel in prosecuting this action on behalf of the Class.” In re Rent-Way Sec. Litig., 218 F.R.D. 101, 115 (W.D. Penn. 2003). Because the Rule 23 factors are satisfied, the Court may grant emergency relief to the Class.
CONCLUSION Absent this Court’s immediate intervention, Petitioners and the Class will remain at imminent risk of serious illness or death from COVID-19 as a result of their unconstitutional confinement at Fort Dix. For the reasons explained herein, the
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Court should order immediate, temporary enlargement of custody for Petitioners and the Class.

Dated: May 6, 2020

Respectfully submitted,

By: /s/ Tess Borden

Faith E. Gay* Caitlin J. Halligan* Joshua S. Margolin* Oscar Shine* Kevin C. Hu* Shomik Ghosh*
SELENDY & GAY PLLC 1290 Avenue of the Americas 17th Floor New York, NY 10104 212-390-9000
fgay@selendygay.com challigan@selendygay.com jmargolin@selendygay.com oshine@selendygay.com khu@selendygay.com sghosh@selendygay.com

Tess Borden (260892018) Jeanne LoCicero AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION 570 Broad Street, 11th floor P.O. Box 32159 Newark, NJ 07102 973-854-1733 tborden@aclu-nj.org
Jim Davy* 2362 E. Harold Street Philadelphia, PA 19125 609-273-5008 jimdavy@gmail.com
Matthew Stiegler* Law Office of Matthew Stiegler 7145 Germantown Avenue, Suite 2 Philadelphia, PA 19119 215-242-1450 Matthew@StieglerLaw.com

Counsel for Petitioners and Proposed Class Members

*Petition for admission pro hac vice pending

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTOCONCEPCION, individually and on behalf of all others similarly situated,
Petitioners,
v.
DAVID E. ORTIZ, in his capacity as Warden of the Federal Correctional Institution, Fort Dix, and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons,
Respondents.

Civil Action No. 1:20-cv-05496-RMB

DECLARATION OF TESS BORDEN I, Tess Borden, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct to the best of my knowledge: 1. I am an attorney at the American Civil Liberties Union of New Jersey Foundation,
and counsel for Petitioners. 2. Attached hereto as Exhibit A is a true and correct copy of a document that I
obtained from an attorney who has a client incarcerated at Fort Dix. On information and belief, it is the document described by Petitioner Scronic in Paragraph 11 of his declaration filed on May 4, 2020.

Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.

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Dated: May 6, 2020

/s/ Tess Borden Tess Borden American Civil Liberties Union
of New Jersey Foundation 570 Broad Street, 11th Floor P.O. Box 32159 Newark, NJ 07102 tborden@aclu-nj.org (973) 854-1733

2

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Exhibit A

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTO-CONCEPCION, individually and on behalf of all others similarly situated,
Petitioners,
v.
DAVID E. ORTIZ, in his capacity as Warden of the Federal Correctional Institution, Fort Dix, and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons,
Respondents.

Case No. 20-cv-5496-RMB [PROPOSED] ORDER

[PROPOSED] PRELIMINARY INJUNCTION Pursuant to Fed. R. Civ. P. 65, and having reviewed Petitioners’ Notice of Motion for Preliminary Injunction, the Memorandum of Law in Support of their Motion, and any response thereto, the Court HEREBY ORDERS that: 1. The motion is granted because Petitioners have demonstrated that they will suffer irreparable harm from their continued confinement; that they are substantially likely to prevail on their claim that their continued imprisonment at Fort Dix violates the Eighth Amendment; that the balance of equities and public interest tip in favor of a preliminary injunction; and that immediate, temporary enlargement of custody is an appropriate and necessary remedy;

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2. The custody of Petitioners and all Class members shall be temporarily enlarged, with adequate precautionary public health and safety measures, during the pendency of the petition for a writ of habeas corpus;
3. Respondents are ordered within two (2) days of the date of entry of this Order to produce an initial list of people at Fort Dix who are over the age of 50 and/or have underlying health conditions that make them vulnerable to COVID-19, as defined in Petitioners’ Petition and Memorandum of Law in Support of the Motion for Preliminary Injunction;
4. Following identification, the Court orders Respondents to evaluate each Class member’s eligibility for transfer out of Fort Dix 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 Class members who are younger;
5. Any Class members transferred out of Fort Dix may not be returned to the facility until the threat of the virus is abated or until a vaccine is available and Fort Dix obtains sufficient vaccine supplies to vaccinate its population, whichever occurs first;
6. Respondents shall comply with the Constitution for any members of the Class who remain at Fort Dix while temporary enlargements are being effectuated and/or during the pendency of the petition; and
7. Temporary enlargements of custody shall remain pending further order of this Court.
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IT IS SO ORDERED. Date: __________________

______________________________ Hon. Renee Marie Bumb, U.S.D.J.

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTO-CONCEPCION, individually and on behalf of all others similarly situated,

Case No. 20-cv-5496-RMB

Petitioners,

v.

DAVID E. ORTIZ, in his capacity as Warden of the Federal Correctional Institution, Fort Fix, and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons,

Respondents.

MEMORANDUM OF LAW IN FURTHER SUPPORT OF PETITIONERS’ MOTION FOR A PRELIMINARY INJUNCTION AND IN OPPOSITION TO RESPONDENTS’ MOTION TO DISMISS

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TABLE OF CONTENTS Pages
PRELIMINARY STATEMENT ...............................................................................1 FACTUAL BACKGROUND....................................................................................4
A. Fort Dix’s Alleged Efforts to Prevent Spread of COVID-19 ...............5 B. COVID-19 at the Camp.........................................................................6 C. COVID-19 at the Low.........................................................................10 D. Severity of COVID-19 Cases at Fort Dix ...........................................13 STANDARD OF REVIEW .....................................................................................15 ARGUMENT ...........................................................................................................16 I. THIS COURT HAS JURISDICTION...........................................................16 A. Section 2241 Permits Petitioners to Challenge the Fact and
Execution of Their Sentences..............................................................16 B. Petitioners Are Not Required To Exhaust Administrative
Remedies Under § 2241 ......................................................................26 C. The PLRA Does Not Apply, And Even If It, That Would Not
Bar Petitioners’ Requested Relief .......................................................35 II. A CLASS ACTION IS AN APPROPRIATE AND EFFECTIVE
VEHICLE FOR PETITIONERS’ CLAIMS .................................................42 A. Respondents Motion To Strike Should Be Denied .............................42 B. Petitioners Satisfy The Rule 23(a) and Rule 23(b)
Requirements ....................................................................................... 44 C. The Court Can Provide Interim Relief on a Class-Wide Basis
Without Need for Constant and Individualized Judicial Decisions .............................................................................................54
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III. PLAINTIFFS HAVE MADE THE REQUIRED SHOWING FOR A PRELIMINARY INJUNCTION ...................................................................56 A. Petitioners Have Demonstrated A Likelihood of Success on the Merits ................................................................................................... 57 B. Petitioners Have Established Irreparable Harm ..................................60 C. Equity and Public Interest Weigh In Petitioners’ Favor .....................62
IV. PETITIONERS HAVE PROPERLY PLED A CLAIM UNDER THE REHABILITATION ACT.............................................................................62
CONCLUSION ........................................................................................................67
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TABLE OF AUTHORITIES
Pages
Cases
Alcantara v. Archambeault, No. 20-cv-0756, 2020 WL 2315777 (S.D. Cal. May 1, 2020)......................53
Alvarez v. LaRose, No. 20-782, ECF No. 46 (S.D. Cal. May 9, 2020) ........................................17
Andrews v. Home Depot U.S.A., Inc., No. Civ-A-03CV5200 (DMC), 2005 WL 1490474 (D.N.J. June 23, 2005) ..............................................................................................................43
Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994) ...................................................................... passim
Barnes v. Am. Tobacco Co., 161 F.3d 127 (3d Cir. 1998) ..........................................................................46
Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001) ..........................................................................58
Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007).......................................................................................15
Bell v. Wolfish, 441 U.S. 520 (1979).......................................................................................18
Berry v. Klem, 283 F. App’x 1 (3d Cir. 2008) .......................................................................36
Brown v. Marler, No. 2:20-cv-01914, dkt. no. 39 (E.D. Pa. May 4, 2020) ...............................11
Brown v. Warden Canaan USP, 763 F. App’x 296 (3d Cir. 2019) ...................................................................26
Camacho Lopez v. Lowe, No. 20-cv-563, 2020 WL 1689874 (M.D. Pa. Apr. 7, 2020) ................. 22, 24
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Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) ..........................................................................37
Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012) ......................................................... 2, 17, 20, 25
Carling v. Peters, No. Civ. A. 00-CV-2958, 2000 WL 1022959 (E.D. Pa. July 10, 2000) .......26
Cerverizzo v. Yost, 380 F. App’x 115 (3d Cir. 2010) ...................................................................26
Clark v. McDonald's Corp., 213 F.R.D. 198 (D.N.J. 2003) .......................................................................43
Cohen v. Kurtzman, 45 F. Supp. 2d 423 (D.N.J. 1999)..................................................................16
Coldwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010) ................................................................... 65, 66
Cordaro v. Finley, No. 10-CR-75, 2020 WL 2084960 (M.D. Pa. Apr. 30, 2020).......................29
Cotton v. Douglas Cty. Dep’t of Corr., No. 8:16-cv-153, 2016 WL 5816993 (D. Neb. Oct. 5, 2016) .......................64
Cristian A.R. v. Decker, No. 20-cv-3600, 2020 WL 2092616 (D.N.J. Apr. 12, 2020) ........................62
Cristian A.R. v. Decker, No. 20-cv-3600-MCA, ECF No. 26 at 29 (D.N.J. Apr. 12, 2020)................21
Datasphere, Inc. v. Computer Horizons Corp., 2008 WL 4561509 (D.N.J. Oct. 9, 2008) ......................................................44
Durel B. v. Decker, No. 20-cv-3430-KM, ECF No. 34 (D.N.J. Apr. 21, 2020) ...........................21
Fraihat v. U.S. Immigration & Customs Enforcement, No. EDCV 19-1546, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020).............53
iv

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Furando v. Ortiz, No. 20-cv-3739-RMB, 2020 WL 1922357 (D.N.J. Apr. 21, 2020) ....... 33, 34
Furgess v. Pennsylvania Dep’t. of Corr., 933 F.3d 285 (3d Cir. 2019) ................................................................... 63, 64
Ganim v. Federal Bureau of Prisons, 235 Fed. Appx. 882 (3d Cir. 2007)..................................................... 2, 19, 20
Gilmore v. California, 220 F.3d 987 (9th Cir. 2000) .........................................................................40
Goldberg v. Beeler, 82 F. Supp. 2d 302 (D.N.J. 1999)..................................................................26
Gomes v. Acting Sec’y, U.S. Dep’t of Homeland Sec., No. 20-cv-453, 2020 WL 2113642 (D.N.H. May 4, 2020)...........................53
Goode v. LexisNexis Risk & Info. Analytics Grp., Inc., 284 F.R.D. 238 (E.D. Pa. 2012) ....................................................................42
Grinis v. Spaulding, No. 20-10738, 2020 U.S. Dist. LEXIS 81464 (D. Mass. May 8, 2020) 24, 25
Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009) ................................................................... 49, 50
Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988) ................................................................... 48, 49
Helling v. McKinney, 509 U.S. 25 (1993)........................................................................ 4, 47, 48, 58
Hope v. Doll, No. 20-cv-562, ECF No. 11 (M.D. Pa. Apr. 7, 2020) ...................................62
Huggins v. Grondolsky, No. 09-cv-3143, 2009 WL 2413658 (D.N.J. Aug. 4, 2009)................... 32, 34
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008), as amended (Jan. 16, 2009) ............... 42, 43, 44
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Jason Anthony W. v. Anderson, No. 20-cv-3704-BRM, ECF No. 22 (D.N.J. Apr. 17, 2020) .........................21
Johnson v. Zickefoose, No. 12-2544, 2012 WL 5880344 (D.N.J. Nov. 20, 2012).............................21
Korman v. Walking Co., 503 F. Supp. 2d 755 (E.D. Pa. 2007).............................................................43
Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72 (3d Cir. 2011), opinion reinstated in part, No. 09-3105, 2012 WL 2052685 (3d Cir. Apr. 17, 2012)............................................ 42, 43
Leandro R.P. v. Decker, No. 20-cv-3853-KM, ECF No. 29 (D.N.J. Apr. 17, 2020) ...........................21
Livas v. Myers, No. 20-422, 2020 U.S. Dist. LEXIS 71323 (W.D. La. Apr. 22, 2020).........24
Lyons v. U.S. Marshals, 840 F.2d 202 (3d Cir. 1988) ..........................................................................26
Mabry v. Warden Allenwood FCI Low, 747 Fed. Appx. 918 (3d Cir. 2019)..................................................... 2, 17, 20
Martinez-Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350 (D. Conn. May 12, 2020)....... passim
Mays v. Dart, No. 20 C 2134, 2020 WL 1987007 (N.D. Ill. Apr. 27, 2020) ................ 51, 52
Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018) ..........................................................................45
Miller v. Williamson, No. 07-cv-1326, 2008 WL 471550 (M.D. Pa. Feb. 19, 2008) ......................32
Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003) ..........................................................................37
Money v. Pritzker, Nos. 20-cv-2093, 20-cv-2094, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020) ....................................................................................................... 51, 53
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Morris v. Zickefoose, 368 F. App’x 280 (3d Cir. 2010) ...................................................................30
Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884 (3d Cir. 1977) ..........................................................................16
Moscato v. Fed. Bureau of Prisons, 98 F.3d 757 (3d Cir. 1996) ..................................................................... 26, 32
N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32 (2d Cir. 2018) ............................................................................42
Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001), as amended (Oct. 16, 2001)..................... 42, 46
Pearson v. Prison Health Serv., 850 F.3d 526 (3d Cir. 2017) ..........................................................................57
Peebles v. Potter, 354 F.3d 761 (8th Cir. 2004) .........................................................................64
Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).......................................................................................64
Phillips v. Cty. Of Allegheny, 515 F.3d 224 (3d Cir. 2008) ..........................................................................15
Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999) ..........................................................................19
Plata v. Brown, 427 F. Supp. 3d 1211 (N.D. Cal. 2013).........................................................40
Preiser v. Rodriguez, 411 U.S. 475 (1973).......................................................................................18
Rafael L.O. v. Tsoukaris, No. 20-3481, 2020 WL 1808843 (D.N.J. Apr. 9, 2020) ...............................22
Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195 (D. Mass. 2019)............................................................39
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Reaves v. Department of Correction 404 F. Supp. 3d 520 (D. Mass. 2019)..................................................... 39, 40
Robinson v. Superintendent Rockview SCI, 831 F.3d 148 (3d Cir. 2016) ..........................................................................37
Ross v. Blake, 136 S. Ct. 1850 (2016); accord Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).................................................................................... 36, 37, 38
S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248 (3d Cir. 2013) ..........................................................................63
Savino v. Souza, No. 20-106172020, WL 1703844 (D. Mass. Apr. 8, 2020) ..........................52
Small v. Camden County, 728 F.3d 265 (3d Cir. 2013) ..........................................................................37
Small v. Camden Cty., 728 F.3d 265 (3d Cir. 2013) ..........................................................................33
Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001) ..........................................................................45
Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) ...............................................61
United States v. Ashby, No. 20-cv-0789, 2020 WL 2494679 (M.D. Pa. May 14, 2020) ............. 23, 24
United States v. Coker, No. 3:14-cr-085, 2020 WL 1877800 (E.D. Tenn. Apr. 15, 2020) ................34
United States v. Serfass, No. 15-39, 2020 WL 1874126 (M.D. Pa. Apr. 15, 2020) .............................23
Wagner by Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002 (3d Cir. 1995) ..........................................................................66
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).......................................................................................44
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Weiss v. York Hosp., 745 F.2d 786 (3d Cir. 1984) ..........................................................................45
West v. Emig, 787 F. App’x 812 (3d Cir. 2019) ...................................................................37
Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d Cir. 1975) ..........................................................................54
Wilson v. Williams, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020) ..................................... passim
Wilson v. Williams, No. 20-3447, ECF No. 23-2 (6th Cir., May 4, 2020) ........................ 16, 17, 38
Wilson v. Williams, No. 4:20-cv-0794, ECF No. 85 (N.D. Ohio May 19, 2020) .....................1, 56
Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737 (7th Cir. 2006) .........................................................................65
Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005) .................................................................. passim
Statutes 18 U.S.C. § 3582 ............................................................................................... 28, 31 18 U.S.C. § 3624 ......................................................................................................31 18 U.S.C. § 3626 ......................................................................................... 35, 39, 41 28 U.S.C. § 2241 .............................................................................................. passim 42 U.S.C. § 1997 ......................................................................................................36 Rules Fed. R. Civ. P. 12 .............................................................................................. 15, 62 Fed. R. Civ. P. 23 ............................................................................................. passim Regulations
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28 C.F.R. § 542.10 ...................................................................................................27 28 C.F.R. § 542.18 ...................................................................................................29 Other Authorities Joe Neel & Hannah Hagemann, FDA Cautions About Accuracy Of Widely
Used Abbott Coronavirus Test, NPR (May 14, 2020) https://www.npr.org/sections/coronavirus-liveupdates/2020/05/14/856531970/fda-cautions-about-accuracy-ofwidely-used-abbott-coronavirus-test .............................................................59
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PRELIMINARY STATEMENT In the face of grave risks that COVID-19 poses to medically vulnerable people housed in the tight congregate quarters at FCI Fort Dix, the Government’s brief tries to make a virtue of the fact that the BOP is flying blind: because they admit they are not testing prisoners comprehensively, Respondents assert only that “none of the nearly 2,700 inmates assigned to FCI Fort Dix’s low security facility has tested positive for the virus.” See Respondents’ Brief (“MTD”) at 1, 13. That is not informative or comforting given that Respondents do not disclose how many tests they have actually performed at the low security facility. And the limited testing that has taken place confirms the severity of the risk: of the 274 tests performed just at the Camp, 58 prisoners tested positive, suggesting an infection rate between 20 and 25 percent—a rate similar to one a district court just yesterday called “an unacceptable number.” Wilson v. Williams, No. 4:20-cv-0794, ECF No. 85 (N.D. Ohio May 19, 2020) (estimating the infection rate at Elkton at approximately 25 percent). Because even the limited record before the Court lays bare the imminent and serious risks facing Petitioners, Respondents invoke several purported jurisdictional and procedural bars to hearing the petition at all. Respondents’ arguments are meritless, their motion to dismiss should be denied, and Petitioners’ motion for a preliminary injunction should be granted.

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First, Respondents’ jurisdictional objections fail. Respondents rely on Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012), for the proposition that the Third Circuit only recognizes § 2241 claims if the petitioner alleges BOP conduct inconsistent with the petitioner’s sentencing judgment. MTD at 38. But, as the Third Circuit has explained, the circumstances in Cardona present avenues through which a petitioner can challenge the execution of his sentence via habeas; the other, and the one pursued by Petitioners here, involves a petition seeking “a quantum change in the level of custody.” Ganim v. Federal Bureau of Prisons, 235 Fed. Appx. 882, 884 (3d Cir. 2007); see also Mabry v. Warden Allenwood FCI Low, 747 Fed. Appx. 918, 919 (3d Cir. 2019) (recognizing the distinction between Cardona and cases like Ganim and Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005)). Nor are Petitioners required to exhaust administrative remedies before bringing this petition. Because this is a habeas case, the Prison Litigation Reform Act (“PLRA”) does not apply, and even if it did, Petitioners would be excused from exhaustion because Respondents’ purported remedies are not available. For similar reasons, Petitioners should be excused from § 2241’s judicially created exhaustion requirement.
Second, class relief at this preliminary injunction stage is appropriate and manageable. Respondents do not specifically engage with Rule 23 at all and instead argue—ignoring on-point precedent from the Third Circuit—that a class cannot be
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certified here because not all members of the class are identically situated in every respect. But the Third Circuit has on multiple occasions reversed trial courts on precisely this issue and held that commonality is not defeated merely because members of the class are not injured or compensated in exactly the same way. Class treatment is appropriate here because substantial common questions of law and fact are relevant to the Class.
Third, the Court should grant Petitioners’ request for a preliminary injunction on their Eighth Amendment claim. Respondents’ alleged measures to contain COVID-19 are inadequate given the undisputed record evidence about the virus. For example, Respondents’ testing regime, by their own admission, is only implemented if a prisoner shows symptoms, and even then only sometimes. But COVID-19 is particularly insidious because it can be spread even by individuals showing no symptoms, which means that by the time Respondents might test a prisoner, many more have almost surely been exposed. As Respondents admitted to the prisoners at Fort Dix, social distancing—the only truly effective method of containment—is simply impossible in the prison environment. Pet. ¶ 1. By clinging to ineffective half measures in the face of a COVID-19 outbreak, Respondents show deliberate indifference to Petitioners’ serious risk of infection and death. Nor can Respondents seriously contest the irreparability of the injury; though COVID-19 may present some theoretical risk to everyone, as Respondents contend, the Class here represents
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the most vulnerable prisoners. And Respondents’ interest in managing Fort Dix and the prisoners there can be addressed through supervision on home confinement and the other methods described in the Petition.
Finally, Petitioners have properly pled their Rehabilitation Act claim. Respondents misread Third Circuit cases as suggesting that petitioners must plead intentional animus, but that requirement applies only if the petitioner seeks compensatory damages, whereas here Petitioners seek only injunctive and declaratory relief. Moreover, Petitioners have pled deliberate indifference, which is all the law requires. Respondents’ remaining arguments raise fact disputes not appropriate for resolution on a motion to dismiss.
“It is cruel and unusual to hold convicted criminals in unsafe conditions,” Helling v. McKinney, 509 U.S. 25, 33 (1993), and here Respondents are unable to protect Petitioners from an unprecedented risk of serious illness and death. Respondents’ motion should be denied and Petitioners’ motion should be granted.1
FACTUAL BACKGROUND As outlined in the Petition (“Pet.”), Declarations of all four Petitioners, and Memorandum of Law in Support of the Preliminary Injunction, a COVID-19 outbreak has spread at the Fort Dix Camp and is not under control; the virus has already
1 To the extent the Court grants Respondents leave to file an oversize brief, see MTD at 35 n.15, Petitioners respectfully ask that they also be given leave to file an oversize brief in response.
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entered or may imminently enter the 200-300 person units in the low security main facility (“the Low”); and people confined in medical isolation with confirmed cases of COVID-19 are at risk of death or serious illness that requires care Fort Dix is not prepared to provide. Petitioners incorporate by reference the facts outlined in these prior submissions to the Court as if set forth fully herein and address only the new information submitted by Respondents here.
A. Fort Dix’s Alleged Efforts to Prevent Spread of COVID-19 Respondents outline the policies of the Bureau of Prisons and Fort Dix with respect to the BOP Action Plan and provision of cleaning supplies, personal protective equipment, information to the incarcerated population, and purported opportunities for social distancing. MTD at 6–12. Even if those policies had been implemented assiduously, Respondents have failed to show they have protected Petitioners against their heightened risk of contracting and becoming seriously ill from COVID-19. For example, the two largest increases in positive test results reported by the BOP were on April 25 and May 1, 2020. See Pet. ¶ 109. Given a median incubation period of four to five days and a maximum of 14 days,2 most of the reported cases of COVID-19 at Fort Dix were likely contracted after Respondents had
2 Centers for Disease Control & Prevention, Interim Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), May 15, 2020, https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html
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already taken all of the principal steps they describe. Moreover, Respondents acknowledge that the first prisoner tested positive at the Camp on April 3, 2020. MTD at 13. However, they did not provide any masks until April 5 (according to Respondents, MTD at 10) or mid-April (according to people incarcerated at Fort Dix, Pet. ¶ 88), and did not report the positive result on the BOP website until April 7. Pet. ¶ 86; see also McCombs Decl. ¶ 4 (describing delay in provision of masks at the Camp following the announcement of the first positive case).
Accordingly, even if these policies had been in effect, Respondents have put forward no evidence to show their effectiveness in practice. See also Goldenson Decl. ¶ 44 (concluding that, “[a]lthough Dr. Turner-Foster states that various steps have been taken, these steps are described too vaguely to determine their effectiveness.”).3 Rather, the experiences of people confined at the Camp, the Low, and the isolation unit in Building 5851 demonstrate Respondents have and continue to put Petitioners at grave risk of serious illness or death. These experiences are documented at Exhibits 2 through 6 and summarized below.
B. COVID-19 at the Camp On May 6, the last COVID-19 test was performed at the Camp, Scronic Decl. ¶ 6, and the results in creased the total number of positive results among prisoners
3 Throughout, this citation refers to Dr. Joe Goldenson’s updated expert declaration, as of May 20, 2020, attached hereto as Exhibit 1.
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at Fort Dix to 58. MTD at 14. By respondents’ account, 124 people remain at the Camp and have all tested negative. Id. at 13. Adding those numbers together, that could mean close to 30 percent of the people at the Camp contracted COVID-19 in just one month.4
No tests have been performed at the Camp since May 6, despite the fact that nine prisoners tested positive on that day. Scronic Decl. ¶ 4. This is also despite the high rate of false negatives with the Abbott machine and the fact that studies suggest the virus might remain undetected by a test for a number of days. Goldenson Decl. ¶ 50; see also False Negatives and Reinfections: the Challenges of SARS-CoV-2 RTPCR Testing, American Soc'y for Microbiology, April 27, 2020, https://asm.org/Articles/2020/April/False-Negatives-and-Reinfections-the-Challenges-of.
Among those nine was a kitchen line server who had recently passed out in a church service. The previous week, he had been out sick from his work assignment but had worked on May 5 and during the breakfast shift on May 6 before receiving his positive test result. Scronic Decl. ¶ 4. Also among those nine was a man who had been experiencing symptoms throughout the previous week and had begged to
4 Respondents submit a number of people have since left the camp on compassionate release and/or home confinement, MTD at 19–21, and in the initial petition, Petitioners alleged 230 people were at the Camp as of the date of filing, Pet. ¶ 3. Even with that denominator, the rate of infection is still over 25 percent.
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be tested, but was told to wait until the mass testing was performed for his wing. Scronic Decl. ¶ 4.
Respondents acknowledge they are relying on the Abbott rapid testing machine. MTD at 10. The Food and Drug Administration has issued an alert about the accuracy of this test. Goldenson Decl. ¶ 50. Specifically, it has been shown to have a 15 to 20 percent false negative rate and may miss as many as 48 percent of infections. Goldenson Decl. ¶ 50. By this false negative rate alone, somewhere between nineteen and twenty-five people still at the Camp could be infected with COVID19. Those people still remain fewer than six feet apart from the others. Scronic Decl. ¶ 4.
Despite this false negative rate and the asymptomatic nature of many carriers, Goldenson Decl. ¶¶ 28, 34, Respondents have refused to provide people who tested negative with proof of their results, Scronic Decl. ¶ 3, and have represented that there are no further plans for mass testing. MTD at 13. People in the Camp have continued to experience symptoms. Scronic Decl. ¶ 5. This includes at least one person who was told he tested was negative on May 1 but was nevertheless bedridden for days and certain he had COVID-19. Scronic Decl. ¶ 5. It also includes four people who sleep in bunk beds in the same row and are exhibiting dry throat, coughs, chills, and weakness and who registered high temperatures during temperature check. Scronic Decl. ¶ 5; see also Goldenson Decl. ¶ 45 (describing COVID-19 symptoms).
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In practice, although there are daily, and often twice daily, temperature checks at the Camp, as of May 13, people who trigger a high reading notification on the temperature device are not evaluated by medical staff as a matter of course. Scronic Decl. ¶ 15. Moreover, temperature readings and associated names are not being visibly recorded or otherwise noted for patterns of recurring high temperatures or contact tracing. Scronic Decl. ¶ 15.
People in the Camp and the Low are not reporting symptoms out of fear of being placed in quarantine and of the lack of treatment and medical care being provided in Building 5851. Scronic Decl. ¶¶ 5, 16; Telfair Dec. ¶ 5; Valas Decl. ¶ 26. There appears to be no regular monitoring or testing of symptoms beyond temperature checks at either the Camp or the Low. Scronic Decl. ¶ 13; Valas Decl. ¶ 27; Goldenson Decl. ¶ 45. Some people at the Camp and the Low are concerned the temperature readings are consistently lower than they should be. Scronic Decl. ¶ 13; Valas Decl. ¶ 27.
Correctional officers and nursing staff move between the Camp, east and west compounds at the main facility (or “the Low”), and Building 5851. Scronic Decl. ¶¶ 9–12; Valas Decl. ¶¶ 12–13. This is due in part to officers working double shifts and assisting with counts. At least one officer goes directly from the Camp to the Low in a double shift. Scronic Decl. ¶¶ 10–11. Nursing staff acknowledged to
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prisoners as recently as May 13 that they rotate between the Camp and the Low, including Building 5851. Scronic Decl. ¶ 12.
C. COVID-19 at the Low Respondents’ submissions are opaque regarding testing practices at the Low. By their account, only one person has been tested for COVID-19. Turner-Foster Decl. ¶ 23. Respondents have no plans to test people housed at the Low and have offered no reason for that refusal, despite the capacity to test 75 people a day. Turner-Foster Decl. ¶ 23. Respondents allude to a protocol that “would” be followed should people exhibit symptoms, Turner-Foster Decl. ¶ 23, but provide no information about whether and how often such exhibition of symptoms has occurred. In fact, people at the Low have exhibited symptoms typical of COVID-19. Telfair Decl. ¶¶ 2–4. This has included one man on the east compound who was sick for two months and fainted twice. It also includes four others in the same building who have exhibited vomiting, coughs, chills, and other symptoms, Telfair Decl. ¶¶ 2–4, which are commonly associated with COVID-19, Goldenson Decl. ¶ 45. Yet these people have not been tested, Telfair Decl. ¶¶ 3–4, despite their potential exposure to the virus through staff who come in and out of the community each day and who circulate between the Camp and the Low. In addition to staff movement between the Camp and the Low, officers and items moved between the medical isolation unit at Building 5851 and the rest of the
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west compound. Scronic Decl. ¶¶ 9–12; Valas Decl. ¶¶ 12–13. Specifically, one or more officers, as well as food and beverage crates, travel back and forth from 5851 to the dining hall daily. Valas Decl. ¶ 12. Other staff go back and forth between 5851 and other units to transport laundry. Valas Decl. ¶ 13. Prisoners on the west compound go the first floor of 5851 for clean linens. Valas Decl. ¶ 13; Pet. ¶ 106. Many officers in the west compound do not always wear masks and many or all do not wear gloves. Valas Decl. ¶¶ 14–16.
Respondents make no representations about the number of staff who have been tested for COVID-19. Indeed, they suggest that, other than temperature checks, staff must self-report symptoms. Turner-Foster Decl. ¶¶ 7, 8; see also Goldenson Decl. ¶ 45. Elsewhere, the BOP has acknowledged that it only learns of staff positive results when staff seek such testing outside of the BOP and choose to self-report the results. See, e.g., Resp.’s Objections to Pet.’s “Limited Interrogatories to Resp.,” Brown v. Marler, No. 2:20-cv-01914, dkt. no. 39, at 11 (E.D. Pa. May 4, 2020) (BOP noting “staff are tested in consultation with their own (non-[facility] -affiliated) medical providers, and they are not obligated to share the fact of their testing (or any other protected health information) with the [facility].); see also Goldenson Decl. ¶ 45.
On or around May 3, an officer tested positive for COVID-19 and is now understood by prisoners and staff to be very sick. Valas Decl. ¶¶ 17, 21. It is unclear
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from the BOP website whether the current report of 1 current positive and 4 recovered staff reflects this case.5 The officer worked five days per week scanning the IDs of all prisoners in the west compound who go for daily meal pickups in the compound’s sole dining hall. Valas Decl. ¶ 18. He wore a mask and did not touch the IDs, but in order to scan them was required to come within six inches of nearly every prisoner on the west compound several times per week. Valas Decl. ¶ 21; Pet. ¶ 93 (describing meal pickups from the dining hall). Between meal shifts, he was known usually not to wear a mask. Valas Decl. ¶ 22.
In addition to the contact he had with prisoners picking up morning and/or midday meals, the officer had sustained contact with prisoners who worked in the kitchen. The officer worked the morning shift and was in almost daily contact with the 25 prisoners who worked that morning shift. Valas Decl. ¶¶ 18–20. Additionally, because he had a one- to two-hour overlap with the afternoon shift, he also had regular contact with the 25 prisoners who worked the afternoon shift. Valas Decl. ¶¶ 18–20, 23.
On May 5 or 6, the 25 prisoners who worked the morning shift were tested for COVID-19. Valas Decl. ¶ 23. The afternoon shift was not tested, despite the regular contact they had had with the officer, and were not provided the reasons for the lack
5 Fed. Bureau of Prisons, COVID-19, https://www.bop.gov/coronavirus/index.jsp (updated May 20, 2020).
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of testing when they asked. Valas Decl. ¶¶ 23–24. Prisoners in the west compound who came within six feet—indeed, six inches—of the officer during ID checks were also not tested, including those who had direct and sustained contact with the afternoon kitchen crew. Valas Decl. ¶ 25.
Respondents have not acknowledged this positive test result. They have also not provided significant information about staff positives in their submission to this Court, beyond rehashing the protocols and the aggregate data published on BOP’s website. They have also not acknowledged the 25 tests of prisoners performed in early May. To the contrary, they have submitted that only one test has been performed at the Low. Turner-Foster Decl. ¶ 23.
D. Severity of COVID-19 Cases at Fort Dix Respondents acknowledge that Building 5851 has been converted into an ad hoc medical isolation unit for those who have tested positive for COVID-19, although it is otherwise designed like the other buildings with predominately 12-person rooms. MTD at 12; McCombs Decl. ¶¶ 2–3; Quiambao Decl. ¶ 11. The first floor is a laundry facility; the second floor houses people with active symptoms; and the third floor houses people Respondents deem to have recovered, before they are released back to the general population. MTD at 9; McCombs Decl. ¶¶ 4, 8; Scronic Decl. ¶ 7. Building 5851 and Fort Dix more broadly are not equipped to provide necessary care for those who are sick with COVID-19. Care has been limited to two
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daily rounds by nurses or doctors. Quiambao Decl. ¶ 10, Pet. ¶ 112. At least as of mid-April, there were no nurses or doctors on site throughout the day and night, such that if a sick person required urgent medical care between rounds, he had to find the corrections officer on duty, or wait. Quiambao Decl. ¶ 10. Prisoners are only offered Tylenol, or Tylenol with codeine to make them sleep. Quiambao Decl. ¶ 9, Pet. 112. Because of reports of this lack of care, people have been dissuaded from reporting symptoms. Scronic. Decl. ¶ 16 (noting fear at the Camp of being placed in quarantine, where only Tylenol is provided and people have required hospitalization); Telfair Dec. ¶ 5; Valas Decl. ¶ 26.
Respondents represent that only one prisoner has required hospitalization. MTD at 10 n.5; Turner-Foster Decl. ¶ 27. In fact, at least four people have become so sick with COVID-19 at Fort Dix that they have required hospitalization. McCombs Decl. ¶¶ 4–7; Quiambao Decl. ¶¶ 1, 15. Among the people who required hospitalization, at least one required a ventilator and/or oxygen support before returning to Building 5851. McCombs Decl. ¶ 4. Another person currently in Building 5851 also spent time in the hospital. McCombs Decl. ¶ 6. A third was transported to the hospital on May 9 and has not yet returned. McCombs Decl. ¶ 7. Finally, one of the ten Fort Dix prisoners to be granted compassionate release by a judge, MTD at 21, thought he would die in Building 5851 until a judge heard his motion over the weekend and ordered him immediately released. Quiambao Decl. ¶ 14; McCombs
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Decl. ¶ 5. The 75-year-old man was transported from Building 5851 in an ambulance and ended up at the hospital the next day, eventually in the ICU. Quiambao Decl. ¶ 15. Over a month later, he is still at a rehabilitation and nursing center. Quiambao Decl. ¶ 16. He writes that if he had not been released, “I believe I would not have survived this ordeal. . . . the failure to be sent to a hospital was almost fatal. I do not say this to be dramatic but to be certain the Court appreciates what almost happened to me.” Quiambao Decl. ¶ 17.
STANDARD OF REVIEW To survive a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), a petitioner need only set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007). The court must assume that all the allegations in the petition are true and construe it in the light most favorable to the petitioner. Id. at 555–56; see also Phillips v. Cty. Of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (“It remains an acceptable statement of the standard … that courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” (citation omitted)). To the extent Respondents challenge this Court’s jurisdiction, Fed. R. Civ. P. 12(b)(1) permits a court to dismiss an action for “lack of subject matter jurisdiction.” A motion to dismiss for lack of jurisdiction under 12(b)(1) may present either a facial
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or a factual challenge to subject matter jurisdiction. Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). When a respondent makes a factual challenge to the availability of subject matter jurisdiction, as Respondents have done here, conflicting evidence may be considered and the court may “decide for itself the factual issues which determine jurisdiction.” Cohen v. Kurtzman, 45 F. Supp. 2d 423, 428 (D.N.J. 1999) (citation omitted).
ARGUMENT I. THIS COURT HAS JURISDICTION
A. Section 2241 Permits Petitioners to Challenge the Fact and Execution of Their Sentences
Petitioners’ request for temporary enlargement of custody (and, if necessary, release) is cognizable under § 2241 both as a challenge to the fact of their confinement and as a challenge to the execution of their sentences. Either way, this Court has jurisdiction to order the temporary and ultimate remedies Petitioners seek.
Petitioners challenge the fact of their confinement because, given the unique and extraordinary circumstances present here, no set of conditions at Fort Dix can protect Petitioners’ Eighth Amendment rights. As the Sixth Circuit recently recognized, “[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 the petition is properly brought under § 2241. Order at 3, Wilson v. Williams, No. 20-3447, ECF No. 23-2 (6th Cir., May 4, 2020).
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Respondents’ attempt to wave Wilson away as “pure semantics,” MTD at 42, is unavailing. The case cited by Respondents, Alvarez v. LaRose, No. 20-782, ECF No. 46 (S.D. Cal. May 9, 2020), distinguished Wilson because “unlike the inmates in Wilson, Plaintiffs fail to argue there are no set of conditions of confinement that would be constitutionally sufficient.” Id. at *7. Alvarez therefore confirms, rather than undermines, the rule articulated by the Sixth Circuit in Wilson that Petitioners’ claim here sounds in habeas.
But even if the Court construes Petitioners as bringing a challenge to the execution of their sentences, as Respondents urge, see MTD at 37–38, this Court still has jurisdiction. On this point, Respondents’ main objection is their claim that the Third Circuit in Cardona “cabined” this Court’s jurisdiction to hear challenges to the execution of Petitioners’ sentences. See MTD at 38. Respondents are incorrect: as the Third Circuit has explained as recently as last year, Cardona and Woodall offer two separate routes by which a Petitioner may challenge the constitutionality of his confinement through habeas. See Mabry v. Warden Allenwood FCI Low, 747 F. App’x 918, 919 (3d Cir. 2019). Because Petitioners satisfy the jurisdictional requirements articulated in Woodall and affirmed in Mabry, this Court has jurisdiction. Respondents’ other arguments, which draw artificial distinctions between different types of habeas cases and seek to insert additional requirements into § 2241, do not change this result.
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District Courts in the Third Circuit have jurisdiction under § 2241 to hear petitions that seek release from ordinary penal institutions like Fort Dix to different types of custody. In Woodall, an incarcerated person brought a claim under § 2241 seeking release from prison to a halfway house. 432 F.3d 235, 241 (3d Cir. 2005). Much like Respondents here, the government in Woodall argued that the court lacked habeas jurisdiction because the petitioner was “challenging the ‘conditions’ of his confinement . . . rather than the fact or duration of his sentence.” Id. The Third Circuit rejected the government’s argument and held that the petitioner’s claim challenged the “execution” of his sentence, which fit squarely within the scope of § 2241.6 In so doing, it emphasized that “[c]arrying out a sentence through detention in [the halfway house] is very different from carrying out a sentence in an ordinary penal institutional.” Id. at 243. Because transfer to a halfway house amounted to more than a “garden variety prison transfer,” it constituted a challenge to the manner in which the sentence was executed. Id.
6 Respondents acknowledge, as they must, that the Supreme Court has not foreclosed habeas challenges to conditions of petitioners’ confinement. MTD at 37; see also Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (“[W]e need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement. When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement[.]”).
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Subsequent Third Circuit decisions confirm this point. In Ganim v. Federal Bureau of Prisons, the Third Circuit explained that under Woodall, courts have habeas jurisdiction to consider petitions challenging the execution of a sentence so long as the relief sought would result in “a quantum change in the level of custody.” 235 F. App’x 882, 884 (3d Cir. 2007) (quoting Pischke v. Litscher, 178 F.3d 497, 499 (7th Cir. 1999)). Unlike “garden variety prison transfer[s],” if the relief sought would result in the petitioner being transferred to a facility without the “same security level” as an ordinary penal institution, the “quantum change in the level of custody” needed to confer habeas jurisdiction exists. Id.
Respondents’ claim about the “finality of judgments” is a red herring. See MTD at 35–36. Respondents elsewhere acknowledge that courts have jurisdiction to review and modify “the execution of [a prisoner’s] federal sentence” via § 2241. See id. at 37. Under Woodall, courts in the Third Circuit have habeas jurisdiction to consider petitions for transfers that surpass “garden variety prison transfers.” MTD at 38. Unlike a “garden variety prison transfer,” a transfer to home confinement would allow Petitioners to carry out their sentence in a manner that is “very different from carrying out [their] sentence[s]” at Fort Dix. Woodall, 432 F.3d at 241. Because transfer from Fort Dix to home confinement would result in a “quantum change in the level of custody,” Petitioners have properly brought their claim under § 2241. Ganim, 235 F. App’x at 884.
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Respondents argue, incorrectly, that the Third Circuit limited habeas jurisdiction in Cardona v. Bledsoe, 681 F.3d 533, 537 (3d Cir. 2012). See MTD at 38. In Cardona, the petitioner brought a § 2241 petition challenging his transfer to the Special Management Unit of the penitentiary in which he was serving his sentence. Id. at 534. Significantly, the Cardona petitioner did not challenge the fact of his confinement or bring a claim that, if successful, would affect the duration of his confinement. Id. at 537. His confinement in the Special Management Unit was also not inconsistent with anything in his sentencing judgment. Id. at 536. The Court therefore held that the petitioner’s claim did not constitute a challenge to the execution of the sentence for purposes of § 2241. Id.
Respondents rely on Cardona for the proposition that the only way a petitioner can challenge the execution of his sentence is by identifying an inconsistency between the execution and the sentencing order. MTD at 38. However, Cardona did not abrogate or overturn Woodall or Ganim. Indeed, the Third Circuit recently made clear that a claim premised upon the inconsistency between the execution of the sentence and the sentencing order is only one of two ways that the execution of a sentence can be challenged. Mabry, 747 F. App’x at 919. The other way a petitioner can challenge the execution of his sentence is by seeking a change in custody that is “more than a simple transfer.” Id. (citing Woodall, 432 F.3d at 243).
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Petitioners here seek precisely the type of transfer that the Woodall court deemed sufficient to confer § 2241 jurisdiction.7
In allowing Petitioners’ claim to proceed under § 2241, this Court would join a steadily growing number of courts in this district that have found § 2241 an appropriate vehicle by which detained persons may challenge unsafe conditions during the COVID-19 pandemic. See, e.g., Cristian A.R. v. Decker, No. 20-cv-3600MCA, ECF No. 26 at 29 (D.N.J. Apr. 12, 2020) (Arleo, J.) (ordering immediate release of medically vulnerable ICE detainees from Hudson and Bergen County jails in New Jersey); Durel B. v. Decker, No. 20-cv-3430-KM, ECF No. 34 at 1, 5–6, 18 (D.N.J. Apr. 21, 2020) (McNulty, J.) (same, for medically vulnerable detainee at Hudson); Leandro R.P. v. Decker, No. 20-cv-3853-KM, ECF No. 29 at 1 (D.N.J. Apr. 17, 2020) (McNulty, J.) (same); Jason Anthony W. v. Anderson, No. 20-cv3704-BRM, ECF No. 22 at 1–7 (D.N.J. Apr. 17, 2020) (Martinotti, J.) (same, for medically vulnerable detainees at Essex County Correctional Facility and Elizabeth County Detention Center in New Jersey); Rafael L.O. v. Tsoukaris, No. 20-3481,
7 Respondents’ citation to Johnson v. Zickefoose, No. 12-2544, 2012 WL 5880344, at *7 (D.N.J. Nov. 20, 2012) is inapposite. MTD at 38. In Johnson, this Court noted that traditional conditions of confinement claims, like those challenging medical care, working conditions in the prison, denial of access to the courts, and interference with legal mail, are not properly brought under habeas. Johnson, 2012 WL 5880344, at *8. However, this Court explained that habeas jurisdiction does exist when a petitioner seeks transfer to a different location that would have a “‘quantum change in the level of custody.’” Id. at *6 (citing Woodall, 432 F.3d at 237).
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2020 WL 1808843, at *9 (D.N.J. Apr. 9, 2020) (Vasquez, J.) (same, for medically vulnerable detainees at Essex County Correctional Facility).
Respondents also insist that bail pending habeas is unavailable because Petitioners have failed to establish “extraordinary or exceptional circumstances.” MTD at 45. But, first, whether Petitioners have met the standard for bail pending habeas is an unrelated inquiry from whether this Court has jurisdiction to hear their claim. Second, and in any event, Petitioners outline the extraordinary circumstances warranting enlargement. See, e.g., Camacho Lopez v. Lowe, No. 20-cv-563, 2020 WL 1689874, at *5–6 (M.D. Pa. Apr. 7, 2020) (holding that, in the Third Circuit, claims premised upon “extraordinary conditions of confinement” that threaten the basic wellbeing of inmates during this public health crisis amount to challenges to the execution of the sentence and are cognizable under § 2241); see also Wilson, 2020 WL 1940882, at *10–11 (granting enlargement to inmates seeking home confinement based on the threat to their health and safety).
Respondents argue that this Court ought not consider cases involving civil detainees because they “d[o] not have the same statutory or regulatory avenues for relief.” MTD at 43. In so doing, Respondents attempt to insert an additional requirement—the unavailability of other relief—into the analysis of whether jurisdiction lies under § 2241. Courts in this district have expressly treated motions for release pursuant to the CARES Act as petitions for habeas, thus making clear
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that the availability of other types of relief does not foreclose petitions for a writ of habeas corpus. See, e.g., United States v. Serfass, No. 15-39, 2020 WL 1874126, at *3 (M.D. Pa. Apr. 15, 2020) (finding the availability of habeas jurisdiction for a prisoner seeking release despite the availability of alternatives for relief); see also United States v. Ashby, No. 20-cv-0789, 2020 WL 2494679, at *6 (M.D. Pa. May 14, 2020) (same).
Respondents also suggest that habeas jurisdiction differs for civil immigration detainees and prisoners because of the difference in the underlying constitutional claims. Though the groups’ underlying constitutional claims may differ, courts in the Third Circuit have in both contexts “concluded that emergency petitions for release, based on COVID19 are properly construed pursuant to 28 U.S.C. § 2241.” Serfass, 2020 WL 1874126, at *3 (construing prisoner’s motion “as a § 2241 habeas petition since [petitioner] seeks relief affecting how her sentence is executed, i.e., serving her sentence in home confinement as opposed to confinement in prison to which she was sentenced”); see also Ashby, 2020 WL 2494679, at *6 (same). In Ashby, for example, an incarcerated petitioner sought immediate home release based on unsafe conditions in the prison. The court explained that the motion should be treated as a habeas petition, and acknowledged that “[a]lthough [she] appears, in part, to raise a challenge to the conditions of her confinement” based on her allegations of inadequate medical care, “she is seeking release from prison in her
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motion and not damages, and thus her filing is not a civil rights action.” Id. at *4. As such, she “clearly seeks relief that affects the execution of her 30-month prison sentence since she requests the court alter its terms and to immediately release her to home confinement.” Id. ; see also Camacho Lopez, 2020 WL 1689874, at *4–5 (M.D. Pa. Apr. 7, 2020) (acknowledging that a petition for release during the pandemic falls within the subset of challenges to the execution of a sentence recognized by the Third Circuit).
Respondents’ out-of-circuit cases finding no habeas jurisdiction are distinguishable. See MTD at 42–43. In Livas, the court explained that although no Fifth Circuit cases had previously recognized a conditions of confinement claim under § 2241, it was “theoretically possible.” Livas v. Myers, No. 20-422, 2020 U.S. Dist. LEXIS 71323, at *8 (W.D. La. Apr. 22, 2020). As explained above, courts in the Third Circuit have held such claims to be cognizable. See, e.g., Camacho Lopez, 2020 WL 1689874, at *6. Further, the petitioners in Livas did not contend that their imprisonment or custody itself was unlawful, whereas such allegations are the crux of Petitioner’s claim in the instant action. Livas, 2020 U.S. Dist. LEXIS 71323, at *7. The petitioners in Grinis v. Spaulding, No. 20-10738, 2020 U.S. Dist. LEXIS 81464, at *4 (D. Mass. May 8, 2020), likewise did not challenge the lawfulness of their custody. Further, the Court in Grinis did not hold that it lacked jurisdiction to
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consider petitioners’ claim; instead, it said that it was “not necessary to resolve that dispute,” because they had failed to show a likelihood of success on the merits. Id.
Further, this argument ignores the mounting out-of-circuit courts that have followed the approach taken in the Third Circuit. See, e.g., Martinez-Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350, at *30 (D. Conn. May 12, 2020); Wilson v. Williams, 2020 WL 1940882, at *6 (N.D. Ohio Apr. 22, 2020).8
As Woodall and its progeny—and, more recently, district courts considering precisely this type of petition—make clear, habeas jurisdiction exists in this context. Respondents’ suggestion otherwise misreads Cardona as the only avenue to challenge execution of sentences in the Third Circuit and invents novel additional hurdles petitioners must meet to establish jurisdiction. Because Petitioners seek more than a “garden variety prison transfer,” this Court has jurisdiction under § 2241 to hear this Petition.
8 Respondents’ suggestion that Wilson is factually distinguishable is incorrect. Like the prisoners in Wilson, Petitioners have limited access to testing, live in close quarters, and have faced the rampant spread of the disease. ECF No. 28-1 at 5; Goldenson Decl. ¶ 36. By Respondents’ own account, Fort Dix has tested a small minority of prisoners, and of those tests, roughly 20% have been positive. MTD at 1, 5. Respondents’ vague assertion that Wilson “has been criticized,” id. at 44, ignores both the number of courts recognizing jurisdiction in this context and that the Sixth Circuit has not questioned the district court’s exercise of jurisdiction. Order at 3, Wilson, No. 20-3447, ECF No. 23-2 (6th Cir. May 4, 2020).
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B. Petitioners Are Not Required To Exhaust Administrative Remedies Under § 2241
Although “[f]ederal prisoners are ordinarily required to exhaust their administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241,” Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996), this judicially created exhaustion requirement “is not ironclad,” Goldberg v. Beeler, 82 F. Supp. 2d 302, 309 (D.N.J. 1999). The Third Circuit has held that exhaustion will be excused where the administrative remedy would be futile, there is a likelihood of irreparable injury absent immediate judicial relief, or the administrative remedy would not serve the requirement’s underlying policy goals. Brown v. Warden Canaan USP, 763 F. App’x 296, 297 (3d Cir. 2019); see also Cerverizzo v. Yost, 380 F. App’x 115, 116 (3d Cir. 2010) (“[W]e have held that the administrative exhaustion requirement in this context may be excused if an attempt to obtain relief would be futile or where the purposes of exhaustion would not be served.” (citing Woodall, 432 F.3d at 239 n.2)); Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988) (explaining, even when exhaustion is required by law rather than judicial discretion, that “[e]xhaustion is not required if administrative remedies would be futile, if the actions of the agency clearly and unambiguously violate statutory or constitutional rights, or if the administrative procedure is clearly shown to be inadequate to prevent irreparable injury”); Carling v. Peters, No. Civ. A. 00CV-2958, 2000 WL 1022959, at *2 (E.D. Pa. July 10, 2000) (excusing a prisoner’s
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failure to exhaust because he “would suffer irreparable injury if he is compelled to wait until an administrative petition is ruled upon”). All three exceptions apply here.
First, exhaustion would be futile because there is no administrative procedure that can grant Petitioners the relief that they seek. Respondents argue that Petitioners should have raised their concerns about COVID-19 through the BOP’s Administrative Remedy Program (“ARP”), MTD at 28–29, which provides “formal review of an issue relating to any aspect of [a prisoner’s] own confinement.” 28 C.F.R. § 542.10(a). But the gravamen of Petitioners’ Eighth Amendment claim is that there is no set of protective measures that Respondents can feasibly implement to contain the spread of COVID-19 in Fort Dix. E.g., Petition ¶ 76–82. Thus, even if Petitioners utilized ARP to seek review of Respondents’ deficient COVID-19 containment measures, Respondents could not feasibly adjust them to adequately protect Petitioners from the heightened risk of COVID-19 transmission.
In addition, it is unclear that ARP can, in fact, provide the relief Petitioners seek. Respondents fail to cite any authority suggesting that ARP can be properly used to challenge the fact of confinement at Fort Dix, or that any person in BOP custody has successfully obtained a change in custody—let alone enlargement of custody—by filing an ARP grievance. See MTD at 29. Accordingly, recourse to the ARP would be futile because its would neither allow Respondents to cure their constitutionally deficient conduct nor grant Petitioners their requested relief.
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Respondents also contend that, in the alternative, Petitioners could obtain their desired relief through the process for requesting compassionate release. Id. at 40. But compassionate release is not an administrative remedy: Respondents elsewhere acknowledge that the “BOP does not have authority to provide inmates with a reduction in sentence through compassionate [release],” which can only be authorized by a district judge. Id. at 20 (citing 18 U.S.C. § 3582(c)(1)(A)). The BOP is authorized by statute to file a motion in the district court recommending compassionate release, and a prisoner may file a request with the BOP that it do so. 18 U.S.C. § 3582(c)(1)(A). But such a filing merely satisfies a statutory prerequisite that allows the prisoner to directly petition the district court for this relief if (a) the BOP declines to make such a motion or (b) 30 days pass without decision from the BOP. Id). As such, compassionate release is merely another form of relief that the BOP is unable to grant Petitioners; the attendant procedures for requesting such relief from the BOP would similarly be futile.
Second, and independently, exhaustion here is excused because Petitioners will suffer imminent and irreparable injury if forced to undertake any administrative procedure. Petitioners have medical conditions that make them uniquely susceptible to the severe illnesses and death that can result from COVID-19 infection. Petition ¶¶ 114–17, 135. The conditions and facility design at Fort Dix not only make social distancing and self-quarantining—the only effective means of preventing COVID-
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19 transmission—impossible, but also subject all prisoners to a heightened risk of COVID-19 exposure. Petition ¶¶ 76–99. Indeed, COVID-19 has already rapidly spread throughout Fort Dix: as of May 19, 2020, 58 prisoners tested positive for COVID-19 at the Camp. MTD at 14. In the Camp, despite Respondents’ claim to have tested all prisoners, some continue to register high temperatures and exhibit other symptoms. See Scronic Second Decl. ¶ 5. Meanwhile, in the Low, prisoners are continually exposed to corrections officers and medical staff who travel between the Camp, the Low, and the isolation unit within the Low, id. at ¶ 9; Valas Decl. ¶ 12; and Respondents have undertaken no mass testing efforts there and have no plans to do so, MTD at 13. With COVID-19 running rampant within Fort Dix in spite of Respondents’ containment measures, Petitioners cannot meaningfully engage in any administrative-remedy process quickly enough to protect themselves from the risk of contracting the virus under these circumstances and the catastrophic health consequences such infection would cause. Cf. Cordaro v. Finley, No. 10-CR-75, 2020 WL 2084960, at *5 (M.D. Pa. Apr. 30, 2020) (finding no exception to exhaustion “since there are no confirmed cases of the COVID-19 virus at FCISchuylkill”).
Respondents’ erroneous suggestion that Petitioners should have utilized ARP merely illustrates the heightened risk of impending and irreparable injury to Petitioners that would result from exhaustion. MTD at 28–29. ARP consists of four
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different steps that collectively permit the relevant BOP decisionmakers 90 days to respond to a prisoner’s ARP grievance; the BOP decisionmakers routinely extend the response deadlines at least once at each step if “the time period for response [to an ARP grievance] is insufficient to make an appropriate decision.” 28 C.F.R. § 542.18; see also MTD at 29. Moreover, Respondents have taken the position that there is no emergency at Fort Dix and, even assuming this mechanism were an appropriate one, provided no assurances that they would otherwise adjudicate ARP grievances in an expedited or timely manner. MTD at 28–29. In light of the current spread of COVID-19 within Fort Dix, subjecting Petitioners to a 90 day administrative remedy process would all but guarantee their exposure to COVID-19 and the attendant irreparable injury of serious illness or death, thereby mooting their very claims. See Morris v. Zickefoose, 368 F. App’x 280, 281 n.1 (3d Cir. 2010) (affirming the excusal of exhaustion where “further [procedural] efforts would be futile because [the prisoner’s] claim will become moot by his May 15, 2010, release date”). At least one district court found the irreparable harm arising out of the extraordinary circumstances of the COVID-19 pandemic to warrant excusing exhaustion of ARP. Martinez-Brooks v. Easter, No. 3:20-cv-00569 (MPS), 2020 WL 2405350, at *19 (D. Conn. May 12, 2020) (“Given the rapid spread of COVID19 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
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harm if they were required to exhaust the administrative remedy process before seeking relief in court.”). Even if ARP were the applicable administrative remedy process (it is not), the Court should reach the same conclusion here.
This same flaw pervades Respondents’ alternative contentions that Petitioners should utilize the procedures for requesting compassionate release and home confinement. MTD at 40–41. As discussed above, the process for requesting that the BOP file a motion for compassionate release provides the BOP with at least 30 days to consider such a request. See 18 U.S.C. § 3582(c)(1)(A). And once a motion is filed, either by the BOP or the prisoner, in the district court, additional time will be required for the district court to decide the motion. The process for requesting home confinement is similarly temporally indeterminate; Respondents fail to identify provisions in the governing statute, id. § 3624(c)(2), as amended by § 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), or guidance from the Attorney General that guarantees a prompt decision once a prisoner submits an application to his case manager. MTD at 18–19. In practice, of the nearly 2,900 people at Fort Dix, Respondents acknowledge they have referred only 56 people for transfer to home confinement under the CARES Act, and only 39 have or will be transferred by the end of May. MTD at 18–19. This amounts to less than two percent of the Fort Dix prison population, and does not make social distancing possible for those who remain. In sum, both processes would prolong
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Petitioners’ exposure to the very imminent and irreparable harm from which they seek relief.
Third, exhaustion under the current circumstances would disserve the doctrine’s purpose. Exhaustion promotes three policy goals: “(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy.” Moscato, 98 F.3d at 761–62. These benefits are most clearly implicated when a prisoner challenges “the rationale of the BOP’s factual and substantive determination” as opposed to the validity of a BOP regulation or procedure as a whole. See Huggins v. Grondolsky, No. 09-cv-3143, 2009 WL 2413658, at *4 (D.N.J. Aug. 4, 2009) (dismissing petition without prejudice where, unlike here, petitioner “did not state valid grounds excusing his failure to exhaust available administrative remedies”); Miller v. Williamson, No. 07cv-1326, 2008 WL 471550, at *2 (M.D. Pa. Feb. 19, 2008) (“The Third Circuit has held that exhaustion would be futile where a prisoner challenges the validity of a law or regulation, rather than its application in a particular case.”).
Here, nothing would be gained through exhaustion because Petitioners are not challenging the application of any BOP regulation or procedure as it relates to them. Rather, Petitioners’ claims are based on federal constitutional and statutory
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principles that focus on the conditions within Fort Dix itself; the adjudication of the merits of these claims does not require Respondents to make any individualized determinations about Petitioners. Moreover, Respondents have no special expertise in analyzing Eighth Amendment principles or public health considerations that would otherwise warrant deference in favor of administrative proceedings. Thus, the inapplicability of the policy reasons animating the exhaustion requirement to this case further supports excusing exhaustion.
Finally, this Court’s decision in Furando v. Ortiz, No. 20-cv-3739-RMB, 2020 WL 1922357 (D.N.J. Apr. 21, 2020), does not compel a different conclusion. As a threshold matter, the Furando petitioner failed to raise any exception to exhaustion, and so this Court treated the issue as waived and expressly declined to address it. Id. at *4 (“Respondent correctly points out that Petitioner has not offered any justification for his failure to exhaust prior to filing the present petition. Thus, the Court will not address whether exhaustion is futile.”). In contrast, Petitioners here exceeded their pleading obligations by raising exhaustion exceptions in the Petition. Petition ¶¶ 21–23; Small v. Camden Cty., 728 F.3d 265, 268–69 (3d Cir. 2013) (“Failure to exhaust is an affirmative defense the defendant must plead and prove; it is not a pleading requirement for the prisoner-plaintiff.”). And through this memorandum, they reiterate their entitlement to those exceptions for the reasons explained above.
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Another critical distinction between this case and Furando is the different claims asserted in each case. In Furando, the petitioner based his habeas petition on his alleged entitlement to home confinement or release pursuant to the CARES Act. Furando, 2020 WL 1922357 at *1, 4. But “[t]he CARES Act places decision making authority [to authorize home confinement] solely within the discretion of the Attorney General and the Director of the Bureau of Prisons.” United States v. Coker, No. 3:14-cr-085, 2020 WL 1877800, at *1 (E.D. Tenn. Apr. 15, 2020). Furando presented a quintessential case implicating the policy goals of exhaustion because the petitioner was ultimately challenging “the rationale of the BOP’s factual and substantive determination” of his home confinement eligibility. Huggins, 2009 WL 2413658 at *4. Exhaustion was therefore particularly important because the BOP had not yet determined the petitioner’s home confinement eligibility in the first instance and “[was] now in the process of reviewing the [Furando prisoner’s] eligibility for home confinement[.]” Furando, 2020 WL 1922357 at *4. By bypassing the BOP’s initial determination and filing his habeas petition, the Furando petitioner asked this Court to review the reasonableness of home confinement eligibility determination the BOP never made based on “a record that does not yet exist.” Huggins, 2009 WL 2413658 at *4.
But here, as explained above, Petitioners do not allege entitlement to home confinement based on an individualized application of BOP regulation or procedure.
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They instead seek the temporary remedy of enlargement of custody, which can take the form of home confinement, because of Respondents’ unconstitutional conduct. The merits of Petitioners’ constitutional claims therefore do not depend on this Court’s review of any administrative record. Forcing Petitioners to complete the ARP or some other administrative remedy process would not improve this Court’s adjudication of Petitioners’ constitutional claims but would subject them to imminent and irreparable injury.
In sum, this Court should find that all three exceptions to exhaustion apply to Petitioners’ § 2241 petition.
C. The PLRA Does Not Apply, And Even If It, That Would Not Bar Petitioners’ Requested Relief
Because Petitioners have properly invoked § 2241 to challenge the fact of their confinement and execution of their sentences, see I.A, supra, this case is not a “civil action with respect to prison conditions” within the meaning of the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626(g)(2), and is therefore specifically excluded from its coverage.
But even if this Court concludes otherwise, the PLRA would not deprive this Court of authority to order Petitioners’ requested relief. First, the PLRA’s exhaustion requirement must be excused because there are no administrative remedies available to Petitioner. Second, even if the PLRA generally applies restrictions to civil actions that seek a “prisoner release order,” transferring a
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detainee does not trigger the definition of a “prisoner release order” as defined by the PLRA. See id. § 3626(g)(4). The PLRA’s plain language also renders it applicable only where a party seeking a “prisoner release order” must demonstrate as a prerequisite that “crowding is the primary cause of the violation” in order to obtain relief. Id. §§ 3626(a)(3)(B) , (a)(3)(E)(i) . This narrow definition of a “prisoner release order” cannot apply in situations like this one, where the constitutional violation alleged stems primarily not from overcrowding, but instead from the rampant spread of a novel and deadly disease that the BOP is ill-equipped to control. Finally, Petitioners’ requested relief is both narrowly tailored and proportional to the Eighth Amendment violation.
1. Petitioners Are Excused From The PLRA’s Exhaustion Requirement Because Administrative Remedies Are Not Available
The PLRA requires plaintiffs to exhaust administrative remedies when “such administrative remedies . . . are available.” 42 U.S.C. § 1997e(a). The PLRA thus contains a “textual exception to mandatory exhaustion”: a plaintiff need “not exhaust remedies if they are not ‘available.’” Ross v. Blake, 136 S. Ct. 1850, 1855, 1858 (2016); accord Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). In other words, the PLRA “requires exhaustion of all available remedies, not all remedies.” Berry v. Klem, 283 F. App’x 1, 4-5 (3d Cir. 2008) (emphasis added). In Ross, the Supreme
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Court defined “available” as “capable of use for the accomplishment of a purpose.” Ross, 136 S. Ct. at 1858.
Administrative remedies are unavailable where the plaintiff’s attempts to exhaust are thwarted through “machination, misrepresentation, or intimidation,” where officers are unable or unwilling to provide relief to the aggrieved petitioner, or where the administrative scheme is “so opaque” that it becomes practically incapable of use. Ross, 136 S. Ct. at 1860. Similarly, the Third Circuit has found administrative remedies unavailable where prison officials ignore their own procedural rules, e.g., Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir. 2016); Small v. Camden County, 728 F.3d 265, 273 (3d Cir. 2013); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003); Camp v. Brennan, 219 F.3d 279, 280-81 (3d Cir. 2000). While Ross sets forth some paradigmatic types of circumstances in which administrative remedies are unavailable, “neither the Supreme Court nor this Circuit has held that those three circumstances are comprehensive, as opposed to exemplary.” West v. Emig, 787 F. App’x 812, 815 (3d Cir. 2019). Respondents mischaracterize Ross in suggesting otherwise. MTD at 54.
Here, administrative remedies are unavailable to Petitioners. As a threshold matter, as discussed in the § 2241 exhaustion context, Respondents have failed to identify any administrative procedure that could even award Petitioners their requested relief of enlargement of custody or release. Even assuming an available
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remedy process exists, it would almost certainly require Petitioners to engage in an administrative process that could take weeks or months to resolve, all the while Petitioners remain exposed to imminent and irreparable harm. Accordingly, any administrative-remedy program that would require Petitioners to wait even a week to complete is not “capable of use for the accomplishment of [that] purpose.” Ross, 136 S. Ct. at 1858.
2. Petitioners’ Requested Relief Is Not A “Prisoner Release Order” for PLRA Purposes
Although Petitioners seek physical release from Fort Dix, this requested relief does not qualify as a “prisoner release order” within the meaning of the PLRA because the Court can impose conditions on their release, including that they remain within the custody of the BOP. Wilson v. Williams, No. 20- CV-794, 2020 WL 1940882, at *10 (N.D. Ohio Apr. 22, 2020) (rejecting application of Section 3626 because “the Court is not ordering the release of the prisoners. Instead, the inmates will remain in BOP custody, but the conditions of their confinement will be enlarged.”), stay denied, No. 20-3447, Dkt. 23-2 (6th Cir. May 4, 2020). Here, Petitioners seek, to the extent possible, to remain within the BOP’s custody and alter only the location of their confinement. This requested relief is more accurately characterized as a prisoner transfer, which does not trigger the PLRA.
In Reaves v. Department of Correction, the district court found this distinction between prisoner transfer and prisoner release to be dispositive. 404 F. Supp. 3d
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520, 522 (D. Mass. 2019) (“Reaves II”). The Reaves court had previously ordered a prisoner to be transferred to an outside facility so that he could be treated by a physician with the training to care for his medical needs. Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195, 210 (D. Mass. 2019). The government moved to stay the execution of that order, arguing, as Respondents do here, that under the PLRA, a three-judge panel must approve the transfer of the prisoner. Reaves II, 404 F. Supp. 3d at 522. The Reaves court rejected the government’s argument because the prisoner had not been “released” within the meaning of the PLRA. Id. Instead, the court explained that its prior order “did not release Mr. Reaves from incarceration, it transferred him. This is a distinction not without a difference.” Id.
Even assuming that Petitioners’ requested relief could constitute “release” under the PLRA, the statutory text, legislative history, and familiar principles of statutory construction also establish that the phrase “prisoner release order” in the PLRA applies only in situations where the primary basis of the detainees’ claim is overcrowding. The Reaves court explained that the definition of a “prisoner release order” is best read include such a limitation because:
Reading the statue as a whole entails harmonizing the definition of “prisoner release order” with the requirements for entering one. One of two necessary conditions for entering a release order . . . is that the threejudge panel find by clear and convincing evidence, that ‘crowding is the primary cause of the violation of a Federal right.’ 18 U.S.C. § 3626 (a)(3)(E)(i).
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Id. at 523 (emphasis added, citing Plata v. Brown, 427 F. Supp. 3d 1211, 1222–23 (N.D. Cal. 2013)). Without such a limitation, a broad interpretation of the term “prisoner release order” would mean that the only way a district court can order the release of a prisoner is for a violation of his constitutional rights where overcrowding caused the violation, but not if any other reason caused the violation. The PLRA cannot impose such a strict limitation, which would essentially limit all prisoner claims to only those that stem from overcrowding. As the Reaves Court noted, nothing in the legislative history of the PLRA “evidences Congressional intent to limit the protection of inmates’ constitutional rights in this way.” Id. In fact, the legislative history suggests that the “[s]ponsors of the PLRA were especially concerned with courts setting ‘population caps’ and ordering the release of inmates as a sanction for prison administrators’ failure to comply with the terms of consent decrees designed to eliminate overcrowding.” Gilmore v. California, 220 F.3d 987, 998 n.14 (9th Cir. 2000) (quoting 141 Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (remarks of Sen. Dole) (highlighting Congress’s concern that population caps were a “pernicious form of micromanagement” that required legislative attention)).
In the instant case, mere overcrowding is not the primary cause of Respondents’ Eighth Amendment violation. Instead, their unconstitutional conduct was caused by the unprecedented threat of the highly infectious COVID-19 outbreak in Fort Dix, of which the physical layout of the prison, not overcrowding, is the
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primary driver. Under such circumstances, the requested relief of release relates to the prisoners’ medical needs or vulnerabilities and does not implicate the PLRA’s restrictions on “prisoner release orders.”
3. The Requested Relief Is Narrowly Tailored Assuming, once again, that the PLRA applies here, the PLRA additionally requires that any remedy 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)(1)(A). Petitioners’ requested relief is narrowly tailored to those who are facing imminent and irreparable harm as a result of Respondents’ unconstitutional deliberate indifference. Petitioners and members of the proposed class, because of certain preexisting health conditions or their age, are all uniquely susceptible to the serious illnesses or death attendant to COVID-19 infection. Transferring them into some alternative form of custody is the only way they can properly practice social distancing and self-quarantining, the most effective methods of preventing COVID19 transmission; this, in turn, will improve the feasibility of implementing these methods in Fort Dix by reducing the prison population. As discussed more fully in Petitioners’ memorandum of law in support of their motion or a preliminary injunction as well as Section IV.A of this memorandum, Petitioners have also demonstrated a substantial likelihood of success on the merits
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of their Eighth Amendment deliberate indifference claim. Plaintiffs have thus additionally satisfied the bar for a mandatory injunction. See MTD at 57 (citing N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018)). II. A CLASS ACTION IS AN APPROPRIATE AND EFFECTIVE
VEHICLE FOR PETITIONERS’ CLAIMS A. Respondents Motion To Strike Should Be Denied Respondents’ motion to strike Petitioners’ Class allegations is meritless. See MTD at 57. In the Third Circuit, courts may only make decisions on class certification “after a rigorous analysis.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 (3d Cir. 2008), as amended (Jan. 16, 2009). “A class certification decision requires a thorough examination of the factual and legal allegations.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001), as amended (Oct. 16, 2001). Thus, “[i]n most cases, some level of discovery is essential to such an evaluation.” Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 93 (3d Cir. 2011), opinion reinstated in part, No. 09-3105, 2012 WL 2052685 (3d Cir. Apr. 17, 2012). For the foregoing reasons, “district courts within the Third Circuit typically conclude that motions to strike class action allegations filed before plaintiffs move for class certification are premature.” Goode v. LexisNexis Risk & Info. Analytics Grp., Inc., 284 F.R.D. 238, 244 (E.D. Pa. 2012). As the Third Circuit explained in Landsman, which Respondents cite in their brief:
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When the District Courts decided the class certification issue, there had been no motion for class certification and no discovery; whether the class could potentially fit within Rule 23 was determined on a motion to dismiss. This ruling was premature. 640 F.3d 72 at 93. This is because “[a] motion to strike class allegations under Rule 23(d)(4) seems, for all practical purposes, identical to an opposition to a motion for class certification.” Korman v. Walking Co., 503 F. Supp. 2d 755, 762 (E.D. Pa. 2007). Thus, only when it “appear[s] beyond doubt that no relief could be granted under any set of facts which could prove consistent with the allegations” may a court strike class allegations before discovery. Andrews v. Home Depot U.S.A., Inc., No. Civ-A-03CV5200 (DMC), 2005 WL 1490474, at *3 (D.N.J. June 23, 2005). Such instances, where the “complaint itself demonstrates that the requirements for maintaining a class action cannot be met” are “rare.” Landsman, 640 F.3d at 93; see also Clark v. McDonald's Corp., 213 F.R.D. 198, 205 (D.N.J. 2003) (noting a motion to strike class action allegations “prior to discovery” would only be appropriate in “those rare cases where the complaint itself demonstrates that the [Rule 23] requirements for maintaining a class action cannot be met.”). Even then, “a thorough evaluation of the Rule 23 factors” is necessary, and “[a] district court errs as a matter of law when it fails to resolve a genuine legal or factual dispute relevant to determining the requirements.” In re Hydrogen Peroxide, 552 F.3d at 318.
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Here, Respondents fail to show why Petitioners’ claims do not satisfy Rule 23. Indeed, Respondents do not attempt to analyze Petitioners’ claims in the context of Rule 23 at all. Instead, Respondents merely list the four elements of Rule 23(a) and then assert, without analysis, that the “Petitioners cannot satisfy any of these elements for class certification.” MTD at 58. Respondents’ ipse dixit falls short of the “rigorous analysis” required and should be rejected. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 309. 9
B. Petitioners Satisfy The Rule 23(a) and Rule 23(b) Requirements Rule 23(a) of the Federal Rules of Civil Procedure establishes four requirements for class certification—numerosity, commonality, typicality, and adequate representation—to ensure that the named plaintiffs are “appropriate representatives of the class whose claims they wish to litigate.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). “Besides meeting the requirements of Rule 23(a) , plaintiffs must also satisfy one of the requirements of 23(b) .” Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994). Because Petitioners have
9 For similar reasons, Respondents should not be permitted to raise new arguments regarding Rule 23 in their reply papers. Respondents do not explain to the Court (or Petitioners) why the Rule 23(a) elements are not satisfied and ignore Rule 23(b) entirely. See Datasphere, Inc. v. Computer Horizons Corp., 2008 WL 4561509, at *6 (D.N.J. Oct. 9, 2008) (“As a matter of procedure, this Court will not accept arguments offered for the first time in the reply brief, as they were not properly asserted in the opening brief and Defendants have not had the opportunity to respond to them.”).
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established each of the four requirements of Rule 23(a) and have demonstrated that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Fed. R. Civ. P. 23(b)(2) , they are entitled to class treatment.
Petitioners plainly satisfy Rule 23(a)’s numerosity requirement. In the Third Circuit, “[n]o minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.” Stewart v. Abraham, 275 F.3d 220, 226–27 (3d Cir. 2001) (emphasis added); see also Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467, 486 (3d Cir. 2018) (noting that numerosity is usually satisfied if potential number of plaintiffs exceeds 40). Furthermore, where injunctive relief is sought, “rigorous application of the numerosity requirement would not . . . appear to be warranted.” Weiss v. York Hosp., 745 F.2d 786, 808 (3d Cir. 1984). This is because in most cases seeking “injunctive relief against discriminatory practices by a defendant, the defendant will not be prejudiced if the plaintiff proceeds on a class action basis . . . because the requested relief generally will benefit not only the claimant but all other persons subject to the practice under attack.” Id. Respondents do not contest that the Class is numerous.
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Petitioners have also satisfied Rule 23(a)’s commonality and typicality requirements. In the Third Circuit, and indeed across the country, “[t]he concepts of commonality and typicality are broadly defined and tend to merge.” Baby Neal, 43 F.3d at 56. “Commonality requires the presence of questions of law or fact common to the class, and typicality demands that the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 182 (3d Cir. 2001) (citations and internal quotation marks omitted). The Third Circuit has “set a low threshold for satisfying both requirements.” Id. at 183. “[N]either of these requirements mandates that all putative class members share identical claims.” Id. (alteration in original). Commonality is “demonstrated [when] there is at least one common question of law or fact.” Barnes v. Am. Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998) (emphasis added). “[C]lass members can assert such a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice.” Baby Neal, 43 F.3d at 56. Likewise, “even relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories.” Id. at 58. “If the claims of the named plaintiffs and putative class members involve the same conduct by the defendant, typicality is established regardless of factual differences.” Newton, 259 F.3d at 183–84.
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Petitioners here clearly satisfy both requirements. First, Petitioners raise a common question of law and fact: whether the Respondents’ failure to enlarge the confinement of medically vulnerable prisoners in light of the COVID-19 constitutes deliberate indifference in violation of the Eighth Amendment to the Constitution as understood by the Supreme Court’s decision in Helling v. McKinney, 509 U.S. 25, 31–32 (1993). That there may be factual differences among the class members, such as age, medical history or length of time left on their sentences, does not defeat commonality. As the Petition makes clear, all prisoners within the medically vulnerable Class are exposed to enormous medical risk. Furthermore, the Petition conclusively explains why that risk is inherent to confinement at Fort Dix and cannot be cured through changes in prison practices. The necessity of supervision and interaction with other individuals (e.g., corrections officers and medical staff) on a daily basis places medically vulnerable people at Fort Dix at constant risk of infection, particularly in light of COVID-19’s asymptomatic spread.
That certain members of the class may not yet be sick is also of no matter. As the Supreme Court explained in Helling, “[w]e have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health problems but may 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.” 509 U.S. at 33. Thus, the Court ruled it was impermissible for prison officials to be
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“deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Id. “[A] remedy for unsafe conditions,” the Court noted, “need not await a tragic event.” Id. Here, the data makes clear that medically vulnerable prisoners have an enormously heightened risk of infection, and—upon infection— die at much higher percentages than the general population. Thus, the quantum of medical risk has well passed the threshold of unconstitutionality. While some Petitioners may face an even more serious threat than others, those are differences in the degree of injury and not in kind.
For the same reasons, Petitioners satisfy Rule 23(a)’s typicality requirement. The legal claims raised by the named Petitioners are substantially identical to the rest of the Class’ claims. While certain class members may have conditions that make their risk from COVID-19 worse than others, all class members—by virtue of age or health conditions—face an unconstitutional risk of medical harm through their continued confinement at Fort Dix. The named Petitioners’ claims thus are sufficiently typical of the Class for Rule 23(a)’s purposes.
The Third Circuit’s holding in Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988) supports a finding in Petitioners’ favor on both commonality and typicality. There, a putative class of prisoners challenged numerous conditions at a correctional facility, including allegations that the prison was overcrowded, dangerous, and
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posed numerous serious medical risks to patients. Reversing the trial court’s denial of class certification, the Third Circuit observed that:
Rule 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class, and that the named plaintiff demonstrate a personal interest or threat of injury that is real and immediate, not conjectural or hypothetical. Id. at 177 (internal quotation marks, ellipsis, and brackets omitted). Thus, the named plaintiffs could pursue claims on behalf of the class even if they “themselves could not demonstrate that there was intolerable water seepage into their cells, or that there was no ventilation because their windows could not be operated, or that they had gotten ill because of food that had not been properly stored or prepared in compliance with sanitary requirements.” Id. at 178 Instead, “complainants’ assertion that these conditions existed, and that they were subject to them—even if they had not at the time of assertion themselves been injured by those conditions— was sufficient to require adjudication of the claims as to the class.” Id. Similarly, the Class here is “subject to” conditions that threaten severe risk of deadly infection. That is sufficient to satisfy Rule 23(a)’s commonality and typicality requirements. The Third Circuit has since extended Hassine to situations even more analogous to the one presented by Petitioners. In Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009), a putative class of prisoners sued a correctional facility alleging “that the Defendants violated their Eighth and Fourteenth Amendment rights by failing to
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address the threat of a serious and undiagnosed contagious skin disease, possibly scabies, spreading through the facility.” Id. at 150. The trial court found that the proposed class suffered from commonality and typicality defects since it “would include inmates that suffered life-threatening injuries, and inmates that suffered no physical injuries.” Id. at 158. Because “the treatment received by different members of the class could vary” based on “medical needs and injury,” the trial court found class treatment was “undesirable.” Id.
On review, the Third Circuit reversed the trial court’s class findings and noted “its reasoning [was] problematic.” Id. Relying on Hassine, the Third Circuit highlighted that the complaint included allegations that “all prisoners at the facility, including the named plaintiffs, were subject to the threat of an injury.” Id. Thus, the Court held that the trial court failed to explain why the “alleged threat of injury is insufficiently typical or common to allow Appellants’ action to proceed as a class.” Id. The justification for class treatment here is even stronger because Petitioners present a narrower class (of medically vulnerable inmates only) and have identified an even more serious medical risk (of COVID-19) than the petitioners in Hagan. Third Circuit law thus supports a finding of commonality and typicality.
Rather than address the commonality and typicality requirements as they have been interpreted in the Third Circuit, Respondents focus the near entirety of their limited briefing on class issues on a single out-of-circuit district court opinion,
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Money v. Pritzker, Nos. 20-cv-2093, 20-cv-2094, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020). In Money, a Northern District of Illinois court found a group of prisoners seeking comparable relief as here could not satisfy Rule 23’s commonality requirement because “individualized determinations” would be required to answer the class’s common questions. Id. at *15. Respondents point to Money to support their argument that the differing backgrounds of the class members make class certification undesirable. But, as explained above, the Third Circuit has repeatedly rejected this exact theory, holding that “class members can assert such a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice.” Baby Neal, 43 F.3d at 56. As explained in Baby Neal, “(b)(2) classes have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant’s conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct.” Id. at 57 (emphasis added).
In addition, Money has already proven to have little persuasive effect even within its own district. In Mays v. Dart, No. 20 C 2134, 2020 WL 1987007 (N.D. Ill. Apr. 27, 2020), a different Northern District of Illinois court rejected the Money court’s reasoning on commonality, stating that the court would “depart[] from the analysis in Money” that “the putative classes failed to satisfy the commonality
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requirement because their requested relief would entail individualized
determinations.” Id. at *18. Instead, the court found commonality satisfied, noting
that the “commonality requirement does not mean that the relief ultimately awarded
to each plaintiff must be the same.” Id.
Outside the Third Circuit, the weight of authority supports the Petitioners. As
one district court has explained:
At bottom, a common question of law and fact in this case is whether the government must modify the conditions of confinement -- or, failing that, release a critical mass of Detainees -- such that social distancing will be possible and all those held in the facility will not face a constitutionally violative substantial risk of serious harm. Crucial to the Court’s determination is the troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19. To be sure, the harm of a COVID-19 infection will generally be more serious for some petitioners than for others. Yet it cannot be denied that the virus is gravely dangerous to all of us. Savino v. Souza, No. 20-106172020, WL 1703844, at *7 (D. Mass. Apr. 8, 2020)
(citations and internal quotation marks omitted).
Numerous other courts across the country have likewise rejected Money’s
central thesis and found incarcerated persons challenging COVID-19 related
detention conditions present sufficiently common concerns for interim class relief.
See, e.g., Martinez-Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350, at *30
(D. Conn. May 12, 2020) (“Facts regarding the process employed by the Warden in
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to the entire putative subclass, as are the legal questions regarding whether the Warden’s handling of those processes in these circumstances is constitutional.”); Gomes v. Acting Sec’y, U.S. Dep’t of Homeland Sec., No. 20-cv-453, 2020 WL 2113642, at *3 (D.N.H. May 4, 2020) (“Petitioners’ deliberate indifference claim thus presents at least two common questions: whether each respondent had actual knowledge of the impending harm or risk posed to the putative class by COVID-19; and whether each respondent failed to take steps that would have easily prevented the harm to detainees.”); Alcantara v. Archambeault, No. 20-cv-0756, 2020 WL 2315777, at *5 (S.D. Cal. May 1, 2020) (rejecting sufficiency of government’s argument that each subclass member “has a different risk profile,” noting that “this may be true, but it does not detract from the undisputed common feature of the subclass, which is that each member is at high risk” of contracting COVID-19); Wilson v. Williams, No. 20-cv-00794, 2020 WL 1940882, at *7 (N.D. Ohio Apr. 22, 2020) (rejecting similar arguments made in Money and by Respondents here, and finding commonality satisfied because “[t]he motivating question in the litigation is whether the subclass members’ rights are being violated by the deteriorating conditions at Elkton”); Fraihat v. U.S. Immigration & Customs Enforcement, No. EDCV 19-1546, 2020 WL 1932570, at *18 (C.D. Cal. Apr. 20, 2020) (“Plaintiffs present[ed] the Court with shared factual and legal issues more than adequate to support a finding of commonality” and, “[s]tated in general terms, the
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common question driving this case is whether Defendants’ system-wide response— or the lack of one—to COVID-19 violates Plaintiffs’ rights”).
Finally, Petitioners satisfy Rule 23(a)’s adequacy requirement. “Adequate representation depends on two factors: (a) the plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class.” Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 247 (3d Cir. 1975). Respondents have not identified any conflicts in interest that may exist between the named Petitioners and the broader class., and no such conflicts exist. Nor have Respondents offered any argument as for why the Petitioners legal team would be incapable of conducing the proposed litigation. Because Respondents have failed to meaningfully challenge the Petitioners’ satisfaction of Rule 23(a) , and because Petitioners have satisfied all four requirements of Rule 23(a) , interim class certification is appropriate.10
C. The Court Can Provide Interim Relief on a Class-Wide Basis Without Need for Constant and Individualized Judicial Decisions
Finally, Respondents suggest that class certification is improper because “[t]here would be no feasible way for the Court to decide the constitutionality of
10 Although Respondents do not address Rule 23(b) at all, Petitioners also satisfy Rule 23(b)(2) because “the relief sought by the named plaintiffs should benefit the entire class.” Baby Neal, 43 F.3d at 59. Orders “forcing the [Government] to comply with [its] statutory and constitutional mandates would constitute relief generally applicable to the entire putative class,” id. at 64, thereby meeting the requirements of Rule 23(b)(2) . Petitioners also, in the alternative, satisfy Rule 23(b)(3) .
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these inmates’ conditions of confinement without evaluating all of those different conditions.” MTD at 58. But other courts have squarely rejected Respondents argument and demonstrated that the proposed Class can be managed efficiently and effectively.
For example, in Martinez-Brooks, the District Court for Connecticut granted in part a temporary restraining order on behalf of incarcerated persons at FCI Danbury seeking relief due to the threat of COVID-19. 2020 WL 2405350, at *34. In doing so, the court laid out a sequence of orders to remedy the unconstitutional risk posed by COVID-19. Of note, none of these orders required extensive involvement of the court beyond a supervisory role. For example, the Court ordered that: (a) within 3 days, the Warden file on the docket a list of all medically vulnerable inmates; (b) within 3 days, the respondents implement a process by which home confinement would be assessed (with certain conditions) and provide to members of the subclass the factors relevant to a decision; (c) within 7 days, the respondents begin to process applications for home confinement; (d) within 13 days, respondents finish the review of applications and provide the court with a list of denied individuals. Id. at *32–34.
Likewise, in Wilson, the court ordered that: (a) within 1 day, all members of the subclass be identified; (b) within the next 14 days, the respondents evaluate “each subclass member’s eligibility for transfer out of Elton through any means, including
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but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough” with certain conditions. Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *10–11 (N.D. Ohio Apr. 22, 2020) . The court there has, as recently as yesterday, continued to oversee BOP’s implementation of the court’s order. See Wilson v. Williams, No. 4:20-cv-00794, ECF No. 85 (N.D. Ohio May 19, 2020).
Here, the Court should first declare unconstitutional the current state of incarceration for the class, and then order BOP—as done in Wilson and MartinezBrooks—to implement processes to remedy this violation. While individual determinations may ultimately need to be made, they can be made by the Respondents, not the Court. The Court’s role will instead be supervisory. As the Third Circuit explained in Baby Neal, relief predicated on ordering a government entity to undertake certain remedial measures avoids the “need to make individual, case-by-case determinations in order to assess liability or order relief.” Baby Neal, 43 F.3d at 64. Instead, courts “can fashion precise orders to address specific, systemwide deficiencies and then monitor compliance relative to those orders.” Id. III. PLAINTIFFS HAVE MADE THE REQUIRED SHOWING FOR A
PRELIMINARY INJUNCTION Petitioners have established that all four factors necessary for the issuance of an injunction weigh in their favor, as explained more fully in the Memorandum of Law in Support of Petitioners’ Motion for a Preliminary Injunction. Petitioners Br.
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at 24–37. Respondents nevertheless contend that Petitioners cannot demonstrate any
of these factors. MTD at 3–4. In so doing, they mischaracterize Petitioners’ factual
allegations and requested relief and ignore Petitioners’ supporting evidence. This
Court should disregard Defendants’ misleading arguments and issue a preliminary
injunction ordering immediate, temporary enlargement of custody.
A. Petitioners Have Demonstrated A Likelihood of Success on the Merits
In addition to demonstrating this Court’s jurisdiction and the appropriateness
of class treatment, Petitioners are also likely to succeed on the merits of their habeas
claim. To establish an Eighth Amendment deliberate indifference violation, a
petitioner must “make (1) a subjective showing that the defendants were deliberately
indifferent to his or her medical needs and (2) an objective showing that those needs
were serious.” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)
(internal quotation marks, brackets, and citations omitted). The Third Circuit has
provided the following guidance on the required subjective showing:
The knowledge element of deliberate indifference is subjective, not objective knowledge, meaning that the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware. However, subjective knowledge on the part of the official can be proved by circumstantial evidence to the effect that the excessive risk was so obvious that the official must have known of the risk. Finally, a defendant can rebut a prima facie demonstration of deliberate indifference either by establishing that he did not have the requisite level of knowledge or awareness of
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the risk, or that, although he did know of the risk, he took reasonable steps to prevent the harm from occurring. Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (internal citations omitted). Respondents do not contend that they are unaware that inmates with medical conditions such as Petitioners are at heightened risk for severe, life-threatening cases of COVID-19. Nor do they contend that they are unaware that social distancing and self-quarantining are impossible to implement in Fort Dix. Cf. Petition ¶ 87 (email from Respondent Ortiz stating, in part, “social distancing is not possible in this environment”). Respondents instead point to the variety of containment measures they have implemented to argue that they are providing all Fort Dix prisoners with a sufficient degree of care. MTD at 52. Although Respondents may subjectively believe that their containment measures are the best they can do, these measures remain “contrary to current standards of decency for anyone to be so exposed” because they fail to meaningfully mitigate the risk of COVID-19 transmission and attendant serious illness and death that Petitioners face. Helling v. McKinney, 509 U.S. 25, 35 (1993). As an initial matter, Respondents’ containment measures are premised on the fundamental assumption that all COVID-19-infected prisoners have already been quarantined in the isolation unit and the Fort Dix staff is vigilantly monitoring all remaining prisoners. MTD at 8–13. But Petitioners have uncovered evidence that prisoners at
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the Low and the Camp remain at risk of contracting COVID-19 and indeed are showing symptoms typical of it, in spite of these measures. See generally Valas Decl.; Telfair Decl.; Scronic Decl. More problematically, Respondents’ containment measures similarly rely on their testing efforts, which are fundamentally incomplete. Respondents do not contend—nor could they—that they have tested every prisoner in Fort Dix. They do not even contend that they test every prisoner who has symptoms. Instead, their practice moving forward is to only test (and later isolate) those inmates who first exhibit symptoms and who are determined eligible for testing by medical staff. Turner-Foster Decl. ¶ 23. This procedure wholly fails to account the spread of COVID-19 by asymptomatic prisoners, a flaw that is exacerbated by the significant false negative rate of the Abbott Laboratories testing kits that Respondents are currently using. MTD at 13–14; see also Joe Neel & Hannah Hagemann, FDA Cautions About Accuracy Of Widely Used Abbott Coronavirus Test, NPR (May 14, 2020) available at https://www.npr.org/sections/coronavirus-live-updates/2020/05/14/856531970/fdacautions-about-accuracy-of-widely-used-abbott-coronavirus-test (noting that NPR found that “as many as 15 to 20 out of every 100 tests may produce falsely negative results” and citing study that found “the test could be missing as many as 48% of infections”). See also Goldenson Decl. ¶ 50 (noting 15 to 20 percent false negative rate and FDA alert as to the machine’s inaccuracies).
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Lastly, and most importantly, the current containment measures do not include social distancing or self-quarantining, the only two effective means of preventing COVID-19 transmission. Respondents’ bare assertion that Fort Dix is encouraging social distancing by limiting the number of inmates allowed in certain spaces does not allow the Court to meaningfully assess risk of contraction, as Respondents do not explain what kind of distance inmates are realistically able to maintain given the size of such spaces. Goldenson Decl. ¶ 47. And although Respondents maintain that they are quarantining some inmates, they do not quarantine inmates in separate groups based on date of entry. Goldenson Decl. ¶ 44. Further, Respondents do not assert that they have adequate staffing, resources, and equipment for the quarantine unit. Goldenson Decl. ¶ 46. Having failed to contest their knowledge of the serious health dangers that COVID-19 presents, Respondents’ implementation of flawed containment measures constitutes deliberate indifference in violation of the Eighth Amendment.
B. Petitioners Have Established Irreparable Harm Respondents argue that Petitioners have failed to establish “irreparable harm that they uniquely would suffer if they obtain no relief” because COVID-19 “poses risks to everyone, not just the inmates at FCI Fort Dix.” MTD at 4. This argument utterly fails to address the theory of harm alleged in the Petition: because of certain preexisting medical conditions or advanced age, Petitioners and the proposed class
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members are uniquely vulnerable to the serious illnesses or death that COVID-19 can cause. Petition ¶¶ 7–10, 135; see also Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *1 (M.D. Pa. Mar. 31, 2020) (finding that “[t]here can be no injury more irreparable” than such adverse health consequences ). While members of the general public may share this vulnerability, Petitioners and the proposed class members face a heightened and more imminent degree of this irreparable harm because social distancing and quarantining are impossible to practice within Fort Dix. Petitioners are therefore subject to a unique and individualized form of irreparable harm by the very fact of their confinement in Fort Dix.
As discussed in the preceding section of this memorandum, Respondents fail to undermine this showing of irreparable harm with their allegations that they have put in place adequate measures to contain COVID-19 within Fort Dix. MTD at 59– 60. While Respondents’ current set of containment measures may represent “a good faith effort” to contain COVID-19, id. at 60, they cannot meaningfully mitigate the imminent and irreparable harm that Petitioners face because they do not include the ability to socially distance or self-quarantine. Indeed, Petitioners have put forth evidence that prisoners continue to exhibit symptoms consistent with COVID-19 despite any containment measures. Telfair Decl. ¶¶ 2-4; Scronic Decl. ¶ 5.
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C. Equity and Public Interest Weigh In Petitioners’ Favor Respondents ignore the significant risks to public health posed by an uncontrolled COVID-19 outbreak at Fort Dix. There is, first, the risk that sick prisoners will take up hospital beds in the community, and second, the risk that prisons staff “will carry the virus into their homes and communities.” See Order at 11, Hope v. Doll, No. 20-cv-562, ECF No. 11 (M.D. Pa. Apr. 7, 2020). Respondents instead emphasize the importance of their ability to monitor prisoners at Fort Dix, but that interest can be appropriately balanced by the imposition of specific conditions of release. See, e.g., Cristian A.R. v. Decker, No. 20-cv-3600, 2020 WL 2092616, at *13 (D.N.J. Apr. 12, 2020) (concluding the government’s “interest in ensuring that Petitioners do not flee and in protecting the public” is adequately addressed “in fashioning appropriate conditions of release for each prisoner”). IV. PETITIONERS HAVE PROPERLY PLED A CLAIM UNDER THE REHABILITATION ACT Petitioners have adequately pleaded their Rehabilitation Act claims for the purposes of a motion to dismiss.11 Although Respondents have identified one of the possible frameworks for Rehabilitation Act claims—which Petitioners’ claim nevertheless satisfies—Respondents have elided the commonly-used framework to
11 Because Petitioners have not sought a preliminary injunction on their Rehabilitation Act claim, the standard Petitioners must meet here is merely the notice pleading standard of Fed. R. Civ. P. 12(b)(6).
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which Petitioners’ pleadings conform. Moreover, Respondents’ Rehabilitation Act (“RA”) argument generally fails because it misunderstands the nature of what an “even playing field” entails for the medically vulnerable Petitioners and proposed Subclass Members in this case, and because it attempts to frame disputed questions of fact as matters of law.
To state a claim under the RA, a prisoner may “allege that he is a qualified individual with a disability, who was precluded from participating in a program, service, or activity, or otherwise was subject to discrimination, by reason of his disability.” Furgess v. Pennsylvania Dep’t. of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019). Even where RA claims allege intentional discrimination, the “requisite intent [is] deliberate indifference.” Id. at 291. In such circumstances, an RA claim must allege deliberate indifference by pleading facts that show that the prison “had knowledge that a federally protected right is substantially likely to be violated,” and that “the prison failed to act despite that knowledge.” Id. at 292 (quoting S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 265 (3d Cir. 2013)).
Contrary to Respondents’ arguments, Petitioners in this case need not show intentional animus at all. Under the law of this and other Circuits, a person bringing an RA claim need only show intentional animus when seeking compensatory damages. See Durrell, 729 F.3d at 263 (“two courts of appeals have suggested that [RA] plaintiffs seeking compensatory damages must demonstrate a higher showing
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of intentional discrimination than deliberate indifference”); see also Furgess, 933 F.3d at 289 (setting out “intentional discrimination” from the base elements of the RA claim, “because he seeks compensatory damages”). Petitioners have not asked for compensatory damages in this case. See Doc. 1 at 55-56. Accordingly, they need not show intentional animus on the part of disability to make out an RA claim.
Even if Petitioners did have to show intentional animus, they have sufficiently alleged deliberate indifference, as required. Deliberate indifference, in this context, includes failure to take affirmative steps to protect Petitioners and the RA Subclass. Virtually everything in a prison is a service for purposes of the RA, which Respondents cannot meaningfully dispute. See Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (“Modern prisons provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners.…”). Correctional entities like Fort Dix must “fulfill an affirmative duty . . . to reasonably accommodate” prisoners’ equal access to those activities and services. Cotton v. Douglas Cty. Dep’t of Corr., No. 8:16-cv-153, 2016 WL 5816993, at *5 (D. Neb. Oct. 5, 2016) (quoting Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004)). Indeed, Respondents’ failure to identify the RA Subclass and proactively accommodate them may itself violate the statute, which “contemplates that prophylactic steps must be
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taken to avoid discrimination.” Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006).
With this background, Petitioners’ RA claims more than meet the requisite standard. Petitioners have explicitly alleged that the Subclass is comprised of people whose particular conditions qualify them under the RA, Doc. 1 at 54 ¶ 159; that safe conditions at Fort Dix, and adequate preventative and responsive measures to combat COVID-19, “are programs or services that Fort Dix must provide—but is not presently providing,” Doc. 1 at 54 ¶ 160; and that Respondents have denied them reasonable accommodations in deliberate indifference to their medical conditions. Doc. 1 at 54 ¶ 161-62. To the extent that Petitioners need to allege deliberate indifference, the complaint is replete with facts demonstrating Respondents’ knowledge of Petitioners’ rights and failure to act to protect Petitioners and the Subclass members from exposure to COVID-19. Pet. ¶¶ 83–99.
Respondents’ arguments also fail in part because they attempt to reframe disputed questions of fact as matters of law. For example, even if Respondents were correct as a matter of law that Petitioners need have engaged in a particular sort of interactive process, Petitioners’ many efforts to get Respondents to protect them from COVID-19 and Respondents’ lackluster responses are disputed facts not suitable for disposal at a motion to dismiss stage. See Coldwell v. Rite Aid Corp., 602 F.3d 495, 506-07 (3d Cir. 2010). Similarly, although Respondents raise the
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question of whether reasonable accommodations under the circumstances would amount to a “fundamental alteration” of the services and programs in question, that, too, is a fact question unsuitable for this Court’s decision at this stage. See id. at 507. Whether such accommodations fundamentally alter the programs involves subquestions of fact about things like cost and burden, and the nature of modification. See Wagner by Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1009 (3d Cir. 1995) (reversing a directed verdict reinstating a verdict for an RA plaintiff because the district court had improperly construed fact questions as matters of law).
Respondents’ arguments also misunderstand the nature of “even playing field,” and cannot support dismissal as a result. Although Respondents argue that Petitioners and the Subclass ask for preferential treatment, see Doc. 28-1 at 59, their argument evinces a failure to understand their obligations under the RA in the first place. Petitioners and the Subclass members, all with qualifying disabilities that put them at higher risk of COVID-19 infection and higher risk of complications (including death) should they contract COVID-19, are not on an even playing field as prisoners without the same medical vulnerabilities. As alleged, they are more likely to contract the virus, and more likely to suffer or die if they do. See, e.g., Doc. 1 at ¶¶ 21, 139; Doc. 1-1 at 2, ¶¶ 8-9. Accommodating their disabilities in the provision of correctional services simply acknowledges the terrifying increased risk they face by virtue of those disabilities—as the RA requires.
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CONCLUSION For the reasons set forth above, this Court should grant Petitioners’ Motion

for a Preliminary Injunction and deny Respondents’ Motion to Dismiss.

Dated: May 20, 2020

Respectfully submitted,

By: /s/ Tess Borden

Faith E. Gay* Caitlin J. Halligan* Joshua S. Margolin* Oscar Shine* Kevin Hu* Shomik Ghosh*
SELENDY & GAY PLLC 1290 Avenue of the Americas 17th Floor New York, NY 10104 212-390-9000
fgay@selendygay.com challigan@selendygay.com jmargolin@selendygay.com oshine@selendygay.com khu@selendygay.com sghosh@selendygay.com

Tess Borden (260892018) Jeanne LoCicero AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION 570 Broad Street, 11th floor P.O. Box 32159 Newark, NJ 07102 973-854-1733 tborden@aclu-nj.org
Jim Davy* 2362 E. Harold Street Philadelphia, PA 19125 609-273-5008 jimdavy@gmail.com
Matthew Stiegler* Law Office of Matthew Stiegler 7145 Germantown Avenue, Suite 2 Philadelphia, PA 19119 215-242-1450 Matthew@StieglerLaw.com

Counsel for Petitioners and Proposed Class Members

* Admitted pro hac vice

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Declaration of Joe Goldenson, MD
1. I am a medical physician with 33 years of experience in correctional health care. For 28 years, I worked for Jail Health Services of the San Francisco Department of Public Health. For 22 of those years, I served as the Director and Medical Director. In that role, I provided direct clinical services, managed public health activities in the San Francisco County jail, including the management of HIV, tuberculosis, Hepatitis C, and other infectious diseases in the facility and the planning and coordination of the jail’s response to H1N1, and administered the correctional health enterprise, including its budget, human resources services, and medical, mental health, dental, and pharmacy services.
2. I served as a member of the Board of Directors of the National Commission on Correctional Health Care for eight years and am past President of the California chapter of the American Correctional Health Services Association. In 2014, I received the Armond Start Award of Excellence from the Society of Correctional Physicians, which recognizes its recipient as a representative of the highest ideals in correctional medicine.
3. For 35 years, I held an academic appointment as an Assistant Clinical Professor at the University of California, San Francisco.
4. I have worked extensively as a correctional health medical expert and court monitor. I have served as a medical expert for the United States District Court for the Northern District of California for 25 years. I am currently retained by that Court as a medical expert in Plata v. Newsom, Case No. 3:01-cv-01351 (N.D. Cal.), to evaluate medical care provided to inmate patients in the California Department of Correctional Rehabilitation. I have also served as a medical expert and monitor at Cook County Jail in Chicago; Los Angeles County Jail; at other jails in Washington state, Texas, and Florida; and at prisons in Illinois, Ohio, and Wisconsin.
5. My curriculum vitae is attached as exhibit A.
The nature of COVID-19
6. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease, is a global pandemic and has been termed a global health emergency by the World Health Organization (“WHO”). Cases first began appearing between December 1 and December 31, 2019, in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City.
7. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus that caused the 2002–2003 SARS epidemic.

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8. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.1 to 3.5%, which is up to 35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are selflimited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support.
9. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardiovascular disease, respiratory disease, diabetes, and immune compromise.
10. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS), which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China.
11. COVID-19 is widespread. Since it first appeared in China in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents; heavily affected countries include Italy, Spain, Iran, South Korea, and the U.S. The U.S. is now the world’s most affected country. As of April 29, 2020, there have been 3,142,942 confirmed human cases globally and 218,564 known deaths.1 It is not contained, and cases are growing exponentially.
12. In the United States alone, the Centers for Disease Control and Prevention (“CDC”) reports 981,246 cases and 55,258 deaths as of April 28.2 The New Jersey Department of Health reports 113,856 cases and 6,442 dead as of April 28.3 All these numbers are likely underestimates because of limited availability of testing.
13. SARS-nCoV-2 is now known to be fully adapted to human-to-human spread. This is almost certainly a new human infection, which also means that there is no pre-existing or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
14. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again is
1 https://coronavirus.jhu.edu/map.html (last accessed April 29, 2020) 2 https://www.cdc.gov/covid-data-tracker/index.html ((last accessed April 29, 2020) 3 https://covid19.nj.gov/#live-updates ((last accessed April 29, 2020)

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likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20–30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2–14 days, which is why isolation is generally limited to 14 days.
15. CDC has recently added to the list of possible signs and symptoms of COVID-19 to include fever, cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, or new loss of taste or smell.4 This means the questionnaires currently used to screen staff and prisoners need to be updated and the numbers of suspect cases will increase.
16. There is currently no vaccine for COVID-19, and no cure. The only known ways to prevent the spread of SARS-nCoV-2 involve measures such as thorough handwashing, frequent decontamination of surfaces, and maintaining six feet of physical distance between individuals (“social distancing”).
The risks of COVID-19 in detention facilities
17. COVID-19 poses a serious risk to prisoners, workers, and anyone else in detention facilities. Detention facilities, including prisons like Fort Dix, have long been associated with high transmission probabilities for infectious diseases, including tuberculosis, multidrug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis.
18. The severe epidemic of tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities surrounding a prison.
19. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as social distancing and proper decontamination of surfaces are virtually impossible.
20. For example, several deaths were reported in the U.S. in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May 2019.
21. Current recommendations for social distancing, frequent hand washing, and frequent cleansing of surfaces to prevent infection and the spread of the virus are extremely difficult, if not impossible, to implement in the correctional setting. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical
4 Centers for Disease Control and Prevention, Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019ncov/symptoms-testing/symptoms.html

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complications of these infectious diseases. These include physical/mechanical risks such as overcrowding; population density in close confinement; insufficient ventilation; shared toilet, shower, and eating environments; and limits on hygiene and personal protective equipment such as masks and gloves in some facilities. Shared spaces and equipment (such as telephones) are commonly not adequately disinfected, especially during the current pandemic when more frequent cleaning and disinfecting are required. Limits on soap (copays are common) and hand sanitizer, since they can contain alcohol, are also risks for spread. The nationwide shortage of personal protective equipment (PPE), as well as ancillary products (such as cleaning supplies and thermometer probes) further impacts the ability of correctional facilities to implement necessary precautions.5
22. The risk of exposure to and transmission of infectious diseases, as well as the risk of harm from developing severe complications or death if infected, is significantly higher in jails, prisons, and detention centers than in the community.
23. Close, poorly ventilated living quarters and often overcrowded conditions in these facilities foster the rapid transmission of infectious diseases, particularly those transmitted by airborne droplets through sneezing, speaking, or coughing. In these congregate settings, large numbers of people are closely confined and forced to share living spaces, bathrooms, eating areas, and other enclosed spaces. Groups of persons are often moved from space to space, for example, from a dormitory to a cafeteria. Persons congregate and come in close contact while standing in lines for medication, commissary, fresh laundry, telephones, or court appearances. These group movements, which may cluster large numbers of people together in small spaces, increase the risk of transmission. It is common for detainees in a given housing unit to routinely be subjected to such group movements multiple times each day. They are physically unable to practice social distancing, which the CDC has identified as the “cornerstone of reducing transmission of respiratory diseases such as COVID-19.”6
24. This forced congregation spreads infection from one area of a prison to other areas, too. In addition, detention facilities often rely on detainees to perform work that supports the operation of the facility, such as food service, laundry, and cleaning. To perform these work assignments, they typically travel from their housing units to other parts of the facility. Officers and other detention facility staff routinely have direct physical contact with detainees, especially when handcuffing or removing handcuffs from detainees who are entering or exiting the facility Staff members also move around within the facility, which creates opportunities for transmission both among staff in different parts of the
5 Study of COVID-19 in Correctional Facilities, Harvard University and National Commission on Correctional Health Care, April 9, 2020 6 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html

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facility and transmission to and from detainees in different parts of the facility. This regular circulation makes the spread of infection throughout a prison all but inevitable.
25. While jails, prisons, and detention centers are often thought of as closed environments, this is not the case. Custody, medical, and other support staff and contractors enter and leave the facility throughout the day. New detainees arrive on a frequent basis. Since there is no effective way to screen for newly infected or asymptomatic individuals, they can unknowingly transmit COVID-19 to those housed in the facility. Detainees and inmates are often transferred between housing units, to other facilities, and to and from court. This further increases the likelihood of transmission of COVID-19.
26. It has long been known that jails, prisons, and detention centers can be hotbeds of disease transmission. Due to the frequent ingress and egress of employees at these facilities, an outbreak within a jail, prison, or detention center can quickly spread to surrounding communities. For example, the tuberculosis epidemic that broke out in New York City in the early 1990s began in jails and was spread to the community by jail employees who became infected and then returned home to their families and communities.
27. In addition to the nature of the prison environment, prison and jail populations are also at additional risk due to high rates of chronic health conditions, substance use, mental health issues, and, particularly in prisons, aging and chronically ill populations who may be vulnerable to death or severe illnesses after infection from COVID-19 disease.
28. Testing kits are widely unavailable, and it can take anywhere from a day to a week or more to obtain test results. Someone who is tested shortly after he or she was infected may test negative. Non-test-based screens like taking people’s temperatures or asking them for subjective reports of symptoms—cannot adequately screen for new, asymptomatic or pre-symptomatic infections. COVID-19 has a typical incubation period of 2 to 14 days, commonly five days, and transmission often occurs before presentation of symptoms. According to the CDC, up to 25 percent of people infected with COVID-19 will remain asymptomatic.7 Similarly, infected individuals may experience only mild symptoms. These newly infected, asymptomatic, and mildly symptomatic individuals can, and do, transmit the virus, contributing to its rapid spread. As a result, such inadequate screening presents a critical problem. The possibility of asymptomatic transmission means that monitoring staff and incarcerated people for symptoms and fever is inadequate to identify all who may be infected and to prevent transmission.
29. While every effort should be made to reduce exposure in detention facilities through internal mitigation efforts, this may be extremely difficult to achieve and sustain quickly
7 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html

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enough. Further, no mitigation effort can change the inherent nature of detention facilities, which force people to live in close proximity to one another. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible. Indeed, that is the only public health solution available at this time to reduce the spread of COVID-19 and potentially save lives.
30. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are highly likely. Releasing as many inmates as possible is important to protect the health of inmates, correctional facility staff, health care workers at jails and other detention facilities, and the community as a whole. Indeed, according to the WHO, “enhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”8
31. For these reasons, the pandemic has prompted prisoner releases around the world. France has freed 5,000 inmates9, and, in the United States, California officials are planning to release up to thousands of prisoners.10 In Britain, the Ministry of Justice is planning to grant thousands of prisoners early release within weeks in an effort to contain the spread of the virus in cells and facilities where it said social distancing rules are impossible to maintain.11 Many cities and counties across the US, including San Francisco, Los Angeles, Chicago, Cleveland and New York, are also releasing prisoners to reduce the risk of COVID-19.12
32. It is difficult to overstate the devastation that a COVID-19 outbreak could inflict on a correctional facility such as FCI Fort Dix. At Rikers Island jail in New York, between April 1 and April 15, 2020, the number of COVID-19 positive incarcerated individuals and staff members grew by 104 and 114 people, respectively, upping the jail’s total numbers of confirmed cases to 288 among the incarcerated population, 488 among
8 World Health Organization, Regional Office for Europe, Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance (Mar. 15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-of-COVID-19in-prisons.pdf. 9 Coronavirus: Low-risk prisoners set for early release, BBC News (Apr. 4, 2020), https:// www.bbc.com/news/uk-52165919. 10 Paige St. John, California to release 3,500 inmates early as coronavirus spreads inside prisons, L.A. Times (Mar. 31, 2020), https://www.latimes.com/california/story/2020-03-31/coronaviruscaliforniarelease-3500-inmates-prisons. 11 Britain plans to free many inmates early as it reports a on-day death toll, New York Times, 4/3/20. 12 Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirusprisonsjails.html.

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correction staff, and 78 among health care workers.13,14 The first known case of COVID19 at Rikers was confirmed on March 18,15 illustrating just how quickly this disease can and will overwhelm detention facilities. Two Ohio prisons, Marion Correctional Institution and Pickaway Correctional Institution, have emerged as the largest-known sources of U.S. coronavirus infections, according to data compiled by The New York Times. To date 3,808 cases have been connected to the two prisons.16 Over 80% of the approximately 2,500 prisoners in Marion tested positive.17 In addition, 169 staff have tested positive for COVID-19.18 Eight of the ten largest-known infections sources in the U.S. are jails or prisons.
33. At Ohio’s Marion Correctional, close to 95% of those who tested positive were asymptomatic and would otherwise not have been tested.19 This underscores the risk of the spread of COVID-19 by asymptomatic individuals.
34. According to the Bureau of Prisons, 27 detainees and 3 staff members at FCI Fort Dix currently have tested positive for COVID-19. Dozens more have symptoms. Even these dozens may represent the tip of the iceberg, since newly-infected people typically do not show symptoms for 2–14 days, many infected individual are asymptomatic, and since the infection spreads rapidly to additional people. While no detainees are reported to have died from COVID-19 in FCI Fort Dix yet, the death toll is likely to mount rapidly given the way the disease has progressed elsewhere.
35. It is my understanding that FCI Fort Dix has two open bay / dormitory housing units; at least seven housing units with 2-, 10-, and 12-man dormitory-style rooms; and a segregation unit. It also my understanding that FCI Fort Dix has roughly 2,900 detainees in the facility on any given day; that staff enter and leave the facility regularly; and that detainees share restroom and shower facilities and eat communally prepared food.
36. Based on these understandings, it is my opinion that the exponential infection of rate for COVID-19 we already see in the community would be magnified within FCI Fort Dix.
13 Julia Craven, Coronavirus Cases Are Spreading Rapidly on Rikers Island, Slate (Apr. 2, 2020), https://slate.com/news-and-politics/2020/04/rikers-coronavirus-cases-increase.html. 14 Jan Ranson, Jailed on a Minor Parole Violation, He Caught the Virus and Died, N.Y. Times (Apr. 10, 2020) 15 As Testing Expands, Confirmed Cases of Coronavirus in N.Y.C. Near 2,000 (Mar. 18, 2020), N.Y. Times, https://www.nytimes.com/2020/03/18/nyregion/coronavirus-new-york-update.html. 16 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html?action=click&module=Top%20Stories&pgtype=Homepage&action=click&module=Spotlight&pgtype= Homepage#states (last accessed April 29, 2020). 17 Ohio Department of Rehabilitation & Correction, COVID-19 Inmate Testing Updated 4/28/2020, https://coronavirus.ohio.gov/static/DRCCOVID-19Information.pdf. 18 Id. 19 https://www.nytimes.com/reuters/2020/04/25/us/25reuters-health-coronavirus-prisons-testinginsight.html?searchResultPosition=8

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Adequate social distancing would be impossible to achieve. What’s more, the infection in FCI Fort Dix would not stay limited to the facility, but would worsen infection rates in the broader community. The infection rate will increase substantially before it starts to diminish without major interventions. The number at risk for death is substantial. This is why leaving implementation in the hands of local officials alone, who lack the expertise and resources and were incapable of preventing the outbreak in the first place, is insufficient.
Conclusions
37. For the reasons above, it is my professional opinion that persons currently detained at FCI Fort Dix are at significantly greater risk of contracting COVID-19 than if they were permitted to shelter in place in their home communities. If infected, many are at increased risk of suffering severe complications and outcomes.
38. It is my professional opinion that conditions in FCI Fort Dix threaten the health and safety of every individual within the prison—detained persons and staff alike—and in their surrounding communities.
39. It is my professional opinion that a necessary component of bringing FCI Fort Dix into compliance with the recommendations of the CDC to minimize the risk of COVID-19 transmission within the facility and to the larger community is to substantially reduce the population. Doing so will allow the facility to significantly reduce the risk of infection for both incarcerated people and correctional officers, which in turn protects the communities where corrections staff live.
40. It is my professional opinion that those who are medically vulnerable20 need to be moved out of FCI Fort Dix to the absolute maximum extent possible. In addition, the overall population needs to be significantly lowered to reduce the density in the jails to allow for adequate social distancing, minimize the strain on the jail’s medical care system, ensure adequate space is available for necessary quarantining.
20 Persons held at Fort Dix over the age of 50, as well as all current and future persons held at Fort Dix of any age who experience (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease, or other chronic conditions associated with impaired heart function; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.

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41. It is my public health recommendation that a public health expert be appointed to oversee operations related to preventing further spread of COVID-19 in FCI Fort Dix, which may include authorizing further staggered release of detainees until it is possible to maintain consistent social distancing and appropriate hygiene within the facility.
Dr. Turner-Foster’s declaration indicates deficient attempts to ensure social distancing and therefore my professional opinions and recommendations have not changed.
42. On May 18, the government filed a brief in support of a motion to dismiss and in opposition to the petitioners’ motion for a preliminary injunction. Attached to this brief was the declaration of Dr. Nicoletta Turner-Foster, Clinical Director at FCI Fort Dix. I have reviewed this declaration.
43. Dr. Turner-Foster’s declaration indicates that Fort Dix has taken certain steps to educate prisoners and staff; screen prisoners, staff, and contractors entering the prison; and reduce the spread of COVID-19 within the prison. However the fundamental problem remains that prisoners cannot effectively social distance. My professional opinion remains that the prison is not doing what is reasonably necessary to prevent further spread of COVID-19 infection.
44. Although Dr. Turner-Foster states that various steps have been taken, these steps are described too vaguely to determine their effectiveness. For example, she describes a Bureau of Prisons policy whereby newly arriving asymptomatic inmates with reported risk of exposure are placed in quarantine, and she states that at Fort Dix new prisoners are put into an automatic 14-day quarantine only for those inmates. But Dr. Turner-Foster does not indicate whether inmates who enter the prison on different dates are all quarantined together. It is necessary to maintain separate quarantine groups based on date of entry or exposure to prevent cohort cross-exposure. Dr. Turner-Foster’s description does not indicate whether that is being done.
45. Similarly, Dr. Turner-Foster describes the prison’s practice for screening staff members of taking their temperatures and administering a medical questionnaire. But requiring staff members to take a questionnaire would not be adequate if staff members are not being asked about specific COVID-19 symptoms. This is particularly important because throughout March and April the public were told of only three symptoms (fever, cough, and shortness of breath), but in late April the CDC substantially expanded the list of symptoms to add chills, muscle pain, sore throat, and new loss of taste or smell. The CDC also notes that other reported symptoms include nausea, vomiting, and diarrhea. Awareness of COVID-19’s symptoms cannot be assumed, so administering a questionnaire is adequate only if it covers the specific symptoms.

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46. Dr. Turner-Foster indicates that the prison is using two floors of a housing building to serve as a quarantine unit for prisoners who have tested positive and have symptoms (on one floor) and who are recovering (on another floor). Separating infected inmates is a necessary step but is not sufficient on its own. The quarantine unit would need adequate staffing, equipment, and resources, and Dr. Turner-Foster’s declaration fails to provide that essential information.
47. Most concerningly, Dr. Thomas-Foster describes efforts to promote social distancing but does not give any details necessary to assess whether effective social distancing is occurring. She states that Health Services appointments are limited to 20 inmates at a time so that inmates can socially distance, that prisoners are encouraged to maintain social distancing, that prisoners who tested positive were moved to another building to assist in social distancing, and that the current camp population of 124 inmates provides sufficient space for social distancing. But she provides no information about the size of the different spaces or the social distance that prisoners actually are able to maintain within them. Without the concrete information absent from her declaration, it is impossible to independently assess whether the prison’s efforts are adequate.
48. The lack of necessary detail in Dr. Thomas-Foster’s report reinforces my original recommendation for the appointment of a public health expert to review COVID-19related operations at Fort Dix. Allowing an expert to examine conditions at the prison firsthand is the most efficient and effective way to determine whether the steps it is taking are reasonable.
49. Dr. Thomas-Foster states that the prison does not plan to consolidate medically vulnerable inmates and that it is safer to spread them out across the prison. I disagree with her view. Housing medically vulnerable inmates together would be safer because the inmates’ overall health and COVID-19 symptoms could be monitored more easily, access in and out of the housing unit could be controlled more effectively, and staff could be designated for that unit in order to reduce the number of sources of potential infection. For these reasons, consolidating at-risk prisoners is safer.
50. Another specific concern that emerges from Dr. Thomas-Foster’s declaration is the prison’s reliance on the Abbott rapid testing machine to determine which prisoners are infected. The Food and Drug Administration has issued an alert about the accuracy of the the Abbott test.21 The FDA issued this alert due to scientific studies casting doubt on the reliability of negative test results, and it warned that negative results from the Abbott machine may need to be confirmed. One study found that 15 to 20 out of 100 tests
21 See Coronavirus (COVID-19) Update: FDA Informs Public About Possible Accuracy Concerns with Abbott ID NOW Point-of-Care Test (May 14, 2020), https://www.fda.gov/news-events/press-announcements/coronaviruscovid-19-update-fda-informs-public-about-possible-accuracy-concerns-abbott-id-now-point.

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produce false negative results, while another reported that it could be missing as many as 48% of infections.22 Dr. Thomas-Foster’s declaration makes no mention of the FDA’s alert or the studies which led to it. Worse, she indicates that the prison is relying on negative results from the Abbott machine to decide when to house inmates together, without social distancing. Fort Dix’s reliance on unreliable test results creates a clear danger of spreading infection.
51. I am informed by counsel for the petitioners of reports that a staff member who scanned in each prisoner at mealtimes in one of the compounds of the main facility has tested positive for COVID-19. If that report is accurate, it would mean that all of the prisoners in that compound were likely exposed to infection. Any prisoners who were exposed to a person who tested positive should, at a minimum, be quarantined with social distancing. This would be true even if the staff member wore a mask and did not touch the prisoners. Dr. Thomas-Foster’s declaration does not mention this report, and indeed does not mention any of the Fort Dix staff members who BOP has reported testing positive. Her silence about any steps taken to prevent the spread of infection from staff members who tested positive reinforces my conclusion that the prison is failing to take necessary steps to protect inmates.
52. Accordingly, Dr. Thomas’s declaration does not change my professional opinions. In fact, given the 21-day period between my original declaration and this one, the continuing spread of COVID-19 in federal prisons, and the continuing failure to implement social distancing at Fort Dix, I believe the urgency of taking effective action has increased even more.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 20th day of May, 2020, in Alameda County, California.
__________________________________
Joe Goldenson, MD
22 See Joe Neel & Hannah Hagemann, FDA Cautions About Accuracy of Widely Used Abbot Coronavirus Test, NPR (May 14, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/05/14/856531970/fda-cautions-aboutaccuracy-of-widely-used-abbott-coronavirus-test.

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References
1. Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016.
2. Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85.
3. Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No
abstract available. PMID: 27427447.
4. Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344.
5. Nakamoto Group, Prison Rape Elimination Act Audit Report of FCI Fort Dix (2017), https://www.bop.gov/locations/institutions/ftd/PREA_final_report_ftd.pdf.
6. Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)30663-8. doi: 10.1016/S0140-6736(16)30663-8
7. Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151.
FCI Fort Dix Admissions & Orientation Handbook, https://www.bop.gov/locations/institutions/ftd/FTD_aohandbook.pdf.

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DECLARATION OF RODOLFO QUIAMBAO I, Rodolfo Quiambao, am over the age of 18 and fully competent to make the following Declaration: 1. Until April 13, 2020, I had been incarcerated in the minimum security satellite camp at the Federal Correctional Institution at Fort Dix. My Federal Bureau of Prisons Register Number was 85923-053. I pleaded guilty to certain tax and bribery offenses. I received a sentence of 48 months incarceration and was scheduled for release on October 23, 2021. It was my first offense. I make this declaration to describe the horror of my experience of COVID-19 at Fort Dix, which nearly took my life and caused me ultimately to end up in a hospital ICU. 2. I am 75 years old. As indicated in my Pre-Sentence Report, I suffer from the preexisting health problems of both diabetes and hypertension. These conditions were also noted in my BOP medical file. 3. I had been housed at the Fort Dix Camp with more than 100 men when, on Monday morning, April 6, I awoke at 5:30 to report for my assignment in the kitchen as a food server. I had been feeling unwell for days. That morning, I felt feverish and was suffering from a severe cough and headache. I asked the corrections officer on duty if I might be excused for the day. He excused me and I went back to bed. 4. At approximately 7:30 that morning, there was an announcement to line up and I went to the lineup with the other inmates. Our temperatures were taken and I had a fever of 102.4. I was placed in Special Housing Unit (“SHU”) for medical treatment, which was far away and which I had to walk to despite my condition. 5. Later that day, I was seen by the Fort Dix doctor. I was examined and x-rayed and told that I was suffering from pneumonia. I now know that I was suffering from COVID-19. I

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was given Tylenol for my temperature and also antibiotics late that day for pneumonia. The doctor appeared to be confused or overwhelmed. I heard her talking about my condition and about getting hold of my Unit Manager to notify my next of kin. It got me very worried. I had no access to a phone and no one knew where I was.
6. As noted above, at the time I became ill, my work assignment at the camp was as a food server in the kitchen, where I worked until the onset of my symptoms. During the first week of April, I estimate I came in contact with dozens of men in my unit.
7. On Tuesday, April 7, my condition worsened and I was tested for COVID-19. I remained bedridden and was not eating.
8. On Thursday, April 9, I was told that I had tested positive for COVID-19 and was told that I had to move yet again. By this time, after four days of high fevers and not eating, I was extremely weak but was told I had to walk to another location. Moreover, I was told I had to carry my own bedlinens and pillows despite my age and weakened condition. I recall that walk very well. It was a long walk; it was cold and windy and I was in my sleepwear and slippers. I fell twice. To the best of my recollection I and five other inmates made that walk to a different isolation area.
9. On Friday, April 10, I complained of extreme weakness and my cough was uncontrollable. I received no real medical care. The only medication I received was at night when I was given Tylenol with codeine to make me sleep. I repeatedly asked for antibiotics because it was clear I had a lung infection, but did not receive them. The only medication I was offered was Tylenol or Tylenol with codeine to make me sleep.
2

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10. There were no nurses or doctors on site throughout the day and night. Instead, they made two daily rounds, so that if you needed urgent medical care between those rounds, you had to find the corrections officer on duty, or wait.
11. I was left to myself the whole day and my symptoms became progressively worse. I had trouble breathing and pain in my lungs. I was scared to see no oxygen masks or ventilators in the building. The building was clearly not set up to be the hospital care I needed. Instead, I was simply put in a room with bunks, much like I imagine the rest of the rooms in the west compound.
12. Although we were isolated, we could walk around the floor with masks. I saw other men who looked very ill. Among the men I saw were three inmates I knew by name, but there were others too.
13. On Monday, April 6, because I was quarantined, I was unable to call my wife as I tried to do daily. Not hearing from me, she became concerned and I understand that she then called my attorney, Ronald G. Russo. Unbeknownst to me, on that day Mr. Russo called the Legal Department at Fort Dix to inquire of my condition. I have now learned that he was subsequently told that I was in quarantine, had been tested for COVID-19, but that the results of the test were not yet known. After multiple attempts at contact, on Thursday, April 9, Mr. Russo was told that I had tested positive for COVID-19.
14. On April 10, Mr. Russo wrote to the Warden asking to know of my condition and whether I had made a request for Compassionate Release. I was told that Mr. Russo sent a copy of that letter as a courtesy to the sentencing judge in the Eastern District of New York. At that point, I understand, things moved very quickly. The Court asked my attorney and the prosecutor to be on a phone conference at 5:30 pm that day. The Judge asked the prosecutor to determine,
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among other things, my condition and my medical treatment. At the Court’s request, the government and the Bureau of Prisons responded later on the evening of Friday, April 10. My attorney moved for an Order of Compassionate Release the following day, Saturday April 11. The government consented to my release and on Sunday, April 12, the Court entered an Order directing my release forthwith.
15. An ambulance picked me up at Fort Dix on Monday, April 13, and transported me to my home as directed by the Court’s Order. Although I was to have remained at home, I was simply too ill to stay there. Accordingly, on Tuesday, April 14, I understand that Mr. Russo called 911 and I was transported to St. Francis Hospital in Nassau County. Becoming progressively sicker, I was moved to an ICU unit as the virus, I was told, was beginning to attack my kidneys. I was also put on oxygen.
16. By some miracle, several days later I was so improved that I was moved out of the ICU to a regular bed in that hospital. Finally, approximately one week later I was moved to Grand Rehabilitation & Nursing in Great Neck, NY where I remain under the constant care of doctors. I still have a bad cough at night but believe now that I will survive. I am not certain when I can be released from this facility.
17. In closing, I wish to make it clear that had I not been released on Monday, April 13, I believe I would not have survived this ordeal. As noted, while in quarantine, I did not receive any appropriate medication or treatment. I had stopped eating and was extremely weak when I was removed from the camp. After suffering from COVID-19 for a week, the failure to be sent to a hospital was almost fatal. I do not say this to be dramatic but to be certain the Court appreciates what almost happened to me.
/s/ Rodolfo Quiambao (by consent)
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Case 1:20-cv-05496-RMB Document 30-3 Filed 05/20/20 Page 1 of 3 PageID: 1353
DECLARATION OF EZRA MCCOMBS I, Ezra McCombs, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at the Federal Correctional Institution at Fort Dix. My Federal Bureau of Prisons Register Number is 28646-050. I am serving a sentence for a 2017 drug conspiracy case. My current release date is September 2021. 2. Until May 1, 2020, I was housed in the Fort Dix camp. On May 1, I and others in my unit were tested for COVID-19. Twenty-one of us tested positive and were moved to Building 5851 in the west compound, where I am currently housed on the second floor. 3. Before I was in the camp, I had been housed in Building 5852 in the west compound. The second floor here looks pretty much the same as Building 5852. It is not set up as a medical department. I am currently housed on the second floor in a 12-man room with bunk beds. I have three other men in my room, who all have tested positive and have symptoms. There are some single rooms in the back for really sick guys. There were a lot of really sick guys here when I first arrived, but they have either been taken to the hospital or have recovered. 4. A number of people from the camp have ended up in the hospital because of COVID-19. I know this either from talking with them or from the staff. For example, for the first guy to leave the camp, staff told us they did not think he had COVID-19 and that he would be tested for pneumonia. Then they announced he had tested positive and that we should not touch our faces, but they would not let us use makeshift masks. A little after that staff came to the camp with masks on, and then eventually we got masks. This man is now back in 5851. We are able to talk when we do our laundry on the ground floor. He told me that he was put in the Special Housing Unit or “hole” at first – I think he said for two days – then they took him to the

Case 1:20-cv-05496-RMB Document 30-3 Filed 05/20/20 Page 2 of 3 PageID: 1354
hospital. He had to be on the machine that helps you breathe. Eventually, he came back to 5851 to the second floor. He moved to the third floor right around when I got here.
5. There was another guy from the camp, an older Filipino man, who also ended up in the hospital but was released home around the same time.
6. Another man who I know from the camp got very sick there and was also taken to the hole before going to the hospital. He is in 5851 now and told me himself that he had been in the hospital.
7. On May 9, a man who had been on the second floor with me at 5851 was taken to the hospital. He was visibly very sick even when we were at the camp and would just sit by the window. In 5851, he told other men who speak Spanish how he was feeling. I saw the side of his face was swelling up. I don’t speak Spanish but I would ask him, “you ok?” He’d shake his head and say, “I’m trying I’m trying.” I haven’t seen him since May 9. One of the officers confirmed that he was taken to the hospital.
8. The second floor of Building 5851 is being used to house people who have tested positive and are still actively sick. Once a person has been here for 14 days without symptoms, if they test negative, they go to the third floor.
9. But asymptomatic inmates who test positive are only kept on the second floor for ten days and then go right up to the third floor without being tested. That means they are going upstairs without any knowledge if they are still a carrier of the virus. My understanding is that asymptomatic carriers are the most dangerous and that that is how the virus got into the camp. One inmate who was previously asymptomatic and on the third floor was supposed to go home today. He developed a fever of 103 and was sent back to the second floor with me today. His family was here to pick him up and everything.
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Case 1:20-cv-05496-RMB Document 30-3 Filed 05/20/20 Page 3 of 3 PageID: 1355 /s/ Ezra McCombs (by consent)
I, Tess Borden, certify that I reviewed the information contained in this declaration with Ezra McCombs by telephone on May 15, 2020 and by correspondence on May 19 and 20, 2020 and that, at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge.
/s/ Tess Borden_______________ Tess Borden (260892018) American Civil Liberties Union of New Jersey Foundation P.O. Box 32159 Newark, New Jersey 07102 (973) 854-1733 tborden@aclu-nj.org
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Case 1:20-cv-05496-RMB Document 30-4 Filed 05/20/20 Page 1 of 2 PageID: 1356
DECLARATION OF TOMMIE TELFAIR I, Tommie Telfair, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at the Federal Correctional Institution at Fort Dix. My Federal Bureau of Prisons Register Number is 28646-050. In 2010, I was convicted of conspiracy and possession with intent to distribute heroin. My current release date is February 2024. I am listed as a BOP “chronic care inmate” with nerve damage, stomach issues, and hip and knee injuries. On April 1, 2020 I was approved for surgery due to neurological damage in my back, which I believe also compromises my immune system. 2. I have been at Fort Dix since 2011 and, since February of this year, have been housed in the east compound in Building 5752 in a 12-man room. For months, I have witnessed many people in my building experiencing symptoms that are descriptive of COVID-19. My cellmate and I have had various symptoms but have not been tested for COVID-19. 3. My cellmate has been very sick for a while. He showed signs of sickness in March 2020 and in the weeks between March and April, he fainted twice. He was evaluated by medical but was not tested. 4. Additionally, I have witnessed four other men in my building being very ill. Their symptoms have included vomiting, long-term coughs, chills, headaches, sinus trouble, mucus and runny nose, hot and cold temperature checks, and unusual tiredness. To my knowledge, they have not been evaluated by medical and have not been tested for the virus. Other than my cellmate who fainted, none of us have been evaluated by medical for COVID-19 symptoms beyond the every-other-day temperature checks.

Case 1:20-cv-05496-RMB Document 30-4 Filed 05/20/20 Page 2 of 2 PageID: 1357
5. To my knowledge, no one in the east compound has been tested for COVID-19. I believe people are afraid of reporting symptoms to medical for fear of ending up in quarantine. Also, as a result of the long hours which it tends to take to be seen by medical, when we feel ill, we are forced to self medicate using medications from commissary, which hardly ever work, and are even more difficult to access now with controlled moves and the decreased staff-to-inmate ratio.
/s/ Tommie Telfair (by consent) I, Tess Borden, certify that I reviewed the information contained in this declaration with Tommie Telfair by correspondence on May 20, 2020 and that, at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge.
/s/ Tess Borden_______________ Tess Borden (260892018) American Civil Liberties Union of New Jersey Foundation P.O. Box 32159 Newark, New Jersey 07102 (973) 854-1733 tborden@aclu-nj.org
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Case 1:20-cv-05496-RMB Document 30-5 Filed 05/20/20 Page 1 of 8 PageID: 1358
DECLARATION OF RAYMOND R. VALAS, III I, Raymond R. Valas, III, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at the Federal Correctional Institution at Fort Dix. My Federal Bureau of Prisons Register Number is 21449-052. I was convicted in the Western District of Texas of one count of violating 18 U.S.C. § 1591(a) & (b)(2) arising out of allegations that I had sexual relations with an underaged prostitute in August 2013. I maintain my innocence and have filed a petition pursuant to 28 U.S.C. § 2255 and a motion for new trial based on newly discovered evidence, Brady, and ineffective assistance of counsel, which is pending in the District Court for the Western District of Texas, Raymond R. Valas, III v. United States of America, No. SA-17-CV-733-FB; No. SA-13-CR-806-FB (W.D. Tex.). I am currently serving a 15-year sentence and am scheduled for release on Feb. 28, 2027 due to good time credit I have earned by maintaining good behavior while incarcerated. I have no prior offenses of any kind. My PATTERN score is -4, indicating a “minimal risk of recidivism,” the lowest possible risk. 2. I suffer from exercise-induced asthma, which was diagnosed by Col. Patrick Tangney MD (Ret.) USARNG, a Board-Certified Pulmonology/Critical Care Physician, in 20092010. Because I was experiencing shortness of breath and severe wheezing after vigorous activity following my deployment to Iraq, I was referred to a Pulmonology Specialist at Hanscom AFB in Massachusetts, Col. Tangney. Col. Tangney examined me and sent me for testing at the Medical Command in Manchester, NH (co-located with the Manchester VA). After that, Col. Tangney diagnosed me with exercise-induced asthma and prescribed two medications: a rescue inhaler for use as needed and a purple disc inhaler to be used regularly, at least initially. I was removed from the 197th Deployment to Kuwait in 2010/2011 due to lung function issues and asthma.
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Case 1:20-cv-05496-RMB Document 30-5 Filed 05/20/20 Page 2 of 8 PageID: 1359
3. On May 1, 2020, my attorney, S. Amy Spencer, filed a petition with Warden Ortiz requesting that the Bureau of Prisons (“BOP”) move the court for compassionate release or home confinement, or, in the alternative, that Warden Ortiz and the BOP grant me home confinement or furlough until there is either an effective treatment or vaccine for COVID-19 that is accessible to me. I have not received a decision on my petition to Warden Ortiz as of the date of this declaration, although on or about May 15, 2020, informally, my case manager informed me that it would be denied.
4. On Saturday, May 9, 2020, at approximately 10:00 a.m., I saw a doctor for the first time since I have been at FCI Ft. Dix, notwithstanding the fact that I arrived in June 2015 and have left and returned most recently for my January 2020 hearing on February 19, 2020.
5. The doctor told me that the reason I was being seen was because Warden Ortiz had received my petition for compassionate release. He asked why I wasn’t taking anything for my asthma, and I told him it was because that was the first time I’d seen a doctor here in 5 years.
6. After examining me, the doctor prescribed a rescue inhaler for my asthma. As of this date, I have not received notification that it has arrived. The doctor also said he would order blood work done for me because in addition to asthma, I have a family history of diabetes.
7. According to the Centers for Disease Control and Prevention (“CDC”), asthma is an underlying condition that puts me at risk of “severe illness from COVID-19.” My doctor says that it puts me at increased risk for COVID-19 infection, complications, and death. These conditions make me medically vulnerable and afraid for my life of getting infected with COVID-19.
8. At FCI Ft. Dix, I am the co-founder of the Veterans Support Group. I have taught German, Spanish, English, and Sicilian to other inmates. I sought and received
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Case 1:20-cv-05496-RMB Document 30-5 Filed 05/20/20 Page 3 of 8 PageID: 1360

permission to teach a class on Shakespeare, which was so popular that I ended up teaching 3

classes. I was approved to teach a fourth Shakespeare class and a third German class but have

not been able to do so due to COVID-19. I also work in the library, have helped other inmates

lose weight, get into shape, and lead healthier lifestyles, and since the quarantine, I took it upon

myself to catalogue the books available in my building and create a sign-out list, ensuring that

each book is accounted for so that other inmates can enjoy them.

9.

I know what proper sanitation and quarantine conditions are because in my prior

position as a Lt. Col. in the New Hampshire Army National Guard at the Joint Force

Headquarters, I was responsible for helping to run exercises for 12th CST (civil support team)

handling CBRNE response (Chemical Biological Radiological Nuclear Explosive). Because of

this experience, I know what proper disinfecting of an area consists of and what a quarantine is

supposed to look like. Based on that experience, the way it is being done at FCI Ft. Dix is tragic.

10. I am currently housed in Building 5802 on the west side of the prison. I am in a

two-person room with my roommate. Even in a 2-person room, there is no way for me to stay 6’

away from my roommate. Our beds are only 3’ apart. It is also impossible to socially distance in

12-person rooms. I have also been in a 16-person room in the past, and it would be similarly be

impossible to socially distance in those rooms. I am lucky to be in a two-man room, but I still

have contact with shared space and surfaces with hundreds of other people in my building each

day.

11. My roommate works in the kitchen and prepares meals for individuals who have

tested positive for COVID-19 and are housed in the quarantine building on west campus, which is also the commissary and laundry building. The laundry is on the 1st floor, and the quarantined

inmates are on the 2nd and 3rd floors.

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Case 1:20-cv-05496-RMB Document 30-5 Filed 05/20/20 Page 4 of 8 PageID: 1361
12. I know the following from my roommate who works on the p.m. shift in the chow hall: Through the process of getting food and ice and water to the quarantine building, there is interaction between the quarantine wing and the main west campus. There are four officers in the quarantine building. They send 1 officer over to get water and food from the chow hall four times per day. They generally wear gloves and masks when picking up food. They pick up food in a big red crate and carry the milk over in a crate. Both of those crates travel back and forth between the quarantine building and the building containing the chow hall. The trays themselves are Styrofoam and are thrown away in the quarantine building, but the guard every day carries a big Gatorade-type cooler back and forth with ice and water in it for the quarantine building. Because the quarantine building is the laundry building, there is no potable water there. The guard fills the cooler in the chow hall every day then all the quarantined inmates get ice from it all day, and the guard brings it back to the chow hall to refill it. The water jug went back and forth through the month of April, but it does not go back and forth now. However, at least one or more guards travel back and forth from the quarantined building to the main campus for food and milk every day.
13. We all who live on the west campus have to go to the quarantine building to pick up commissary items such as soap and toothpaste and laundry in the building where the patients who have tested positive for COVID-19 are quarantined. Each and every inmate has to go to 1st floor of the quarantine building for clean sheets, blankets, and pillowcases. Our clothing goes into a bin in our unit and is wheeled into the quarantine building, washed, and returned that afternoon. Staff necessarily go back and forth between the quarantine building and my building to transport the laundry.
14. When I have gone to the chow hall, I see officers who come in wearing no mask
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Case 1:20-cv-05496-RMB Document 30-5 Filed 05/20/20 Page 5 of 8 PageID: 1362
and only wear a mask when they are expressly told to. Many must be told 4 or more times in the amount of time I’m in the chow hall.
15. This week, I walked into the chow hall and saw an officer who had no mask on. He had his mask around his neck and was telling inmates to put masks on.
16. None of the officers wear gloves, and they come in and do pat down searches of inmates without gloves on. On the morning of May 13, 2020, I watched an officer do a pat down of an inmate without gloves.
17. I learned that, on or about Sunday, May 3, 2020, an officer responsible for supervising kitchen staff (including inmate workers) told the kitchen staff that another officer who supervised the kitchen staff and scanned IDs of inmates entering the chow hall tested positive for COVID-19. My roommate, who works in the kitchen, initially told me, but it is common knowledge among inmates and staff now. It is so widely known and discussed among inmates and staff that I believe it would be impossible for Warden Ortiz not to know that this officer tested positive.
18. The officer who tested positive is one of the officers who scans the IDs of every person on west campus going into the only chow hall. He works 5 days per week, not always Monday through Friday. He works the a.m. shift, which is from 4 a.m. to noon. P.M. is 11 a.m. to 8 p.m. during Ramadan, so there is at least an hour overlap between the two shifts.
19. There are two shifts of kitchen workers as well with approximately 25 individuals on each shift. However, there is a 1 to 2-hour overlap when both the a.m. and p.m. inmate kitchen crews are working together.
20. Both inmate kitchen crews come into close contact with the officer who tested positive for COVID-19.
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Case 1:20-cv-05496-RMB Document 30-5 Filed 05/20/20 Page 6 of 8 PageID: 1363
21. The officer who tested positive is not currently scanning IDs, and, unfortunately I understand from my roommate who learned from his supervisor that the officer who tested positive is very sick. When he was scanning IDs during the pandemic, he usually wore a mask but no gloves. He did not have to touch the IDs because he had a scanner that would scan them without touching them, but he came within 6 inches of nearly every inmate several times per week.
22. According to my roommate, in between meal shifts, the officer who tested positive was much more lax and did not usually wear a mask.
23. My roommate told me his supervisor said that, since the officer tested positive, 25 inmates and the other co-founder of the Veterans Support Group from the main campus were tested for COVID-19 on May 5 or 6, 2020. The inmates who were tested worked on the a.m. kitchen crew. Although the p.m. crew, including my roommate, also came into the same close contact with the officer who tested positive for 1-2 hours per day, no one on the p.m. crew, including my roommate, was tested.
24. When members of the p.m. crew asked why they were not being tested because they had been in close contact with the officer who tested positive also, my roommate told me that they did not receive direct answers.
25. I have not been tested even though I came into close contact with the officer who tested positive regularly when I entered the chow hall and even though my roommate works on the p.m. kitchen crew and came into the same close contact with the officer who tested positive as the a.m. crew who were tested.
26. Relatedly, while thankfully I am not aware of any inmate in my building experiencing symptoms, I have heard inmates say regularly that they would be intimidated to
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Case 1:20-cv-05496-RMB Document 30-5 Filed 05/20/20 Page 7 of 8 PageID: 1364 report symptoms if they have them because they are afraid of going to the quarantine building.
27. As far as I am aware, the only symptom of COVID-19 being regularly tested for in my building is fever. For the first two weeks, the staff was taking inmate temperatures during room checks using a thermometer that touched each person’s forehead without sanitizing the thermometer between individuals. Now, the staff is checking temperatures every other day during room checks using a thermometer that hovers about 1 cm over our foreheads, which sometimes touches a person inadvertently, without sanitizing the thermometer between individuals. To my knowledge, the highest temperature the thermometer registers is 97.9 degrees Fahrenheit.
28. Because of this contact I have had with the officer who tested positive, especially in light of my diagnosed asthma, I feel exposed, vulnerable, nervous, and fearful for my life. I do not feel like I am being adequately protected from this deadly virus because there has not been adequate contact tracing of individuals who came into contact with the officer who tested positive and testing of those individuals.
/s/ Raymond R. Valas (by consent)
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Case 1:20-cv-05496-RMB Document 30-5 Filed 05/20/20 Page 8 of 8 PageID: 1365 I, S. Amy Spencer, certify that I am attorney of record for Raymond R. Valas, III in Raymond R. Valas, III v. United States of America, No. SA-17-CV-733-FB; No. SA-13-CR-806-FB (W.D. Tex.). I further certify that I reviewed the information contained in this declaration with Mr. Valas by telephone on May 13, 14, 15, and 19, 2020 and that, at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge.
_____________________________
S. Amy Spencer SHAHEEN & GORDON, PA 107 Storrs Street P.O. Box 2703 Concord, NH 03302-2703 (603) 225-7262 saspencer@shaheengordon.com
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Case 1:20-cv-05496-RMB Document 30-6 Filed 05/20/20 Page 1 of 6 PageID: 1366
DECLARATION OF MICHAEL SCRONIC I, Michael Scronic, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated in the minimum security1 satellite camp at the Federal Correctional Institution at Fort Dix. I make this declaration in follow up to my April 28, 2020 declaration. 2. On the morning of April 30, I and the 60 to 70 other inmates in B-wing were tested for COVID-19. That evening, during temperature check, a member of medical staff told a group of five inmates that there had been 41 positives from that testing. On May 1, a staff member told us 19 had tested positive. Later, we learned from the bulletin board the total was 14. Those people were moved to Building 5851 that day. Many of us believe the actual number of positive results was higher. An officer told a group of three inmates that there were “more positives on the B-side” but they didn’t want “regional” to know of more. 3. People have not been allowed to see records of their negative tests, although a number have asked for them. 4. I tested negative and have remained in B-wing. On May 5, the last set of tests was performed at the camp, for people in A-wing. On May 6, nine people learned they had tested positive and were moved to Building 5851. Included in these were an older man who was a
1 My April 28, 2020 declaration referred to the Fort Dix camp as low security in paragraph 1. That was a typographical error. In fact, the camp is minimum security and the main facility is low security, often referred to by inmates as “the Low.” There was also a typographical error in paragraph 11. The following language appeared in duplicate in that paragraph. “In order to maintain the health of staff and inmates, the following is expected from all inmates: wear your surgical face masks! Since social distancing is not possible in this environment, masks will help keep you and others from spreading viruses.” This language appeared once, not in duplicate, in the April 11 Notice to the Inmate Population.

Case 1:20-cv-05496-RMB Document 30-6 Filed 05/20/20 Page 2 of 6 PageID: 1367
kitchen line server and had recently passed out during church service. He had had his blood pressure taken and then was returned to the population. The previous week, he had been away from the kitchen sick for four days and then had returned to work on May 5 and for the breakfast shift on May 6 before receiving his positive result. I know this from another kitchen server who told me and also because I saw him when I picked up my meal tray. Also included was a man who had been experiencing symptoms for about five to seven days and had begged to be tested then, but was told to wait until the mass testing was performed for his wing. I know this because he told me about it about two days before the mass testing.
5. Since May 6, I have witnessed people in B-wing experience symptoms of COVID-19. This includes someone who was told he was negative on May 1 but was nevertheless sure he had the virus and was bedridden for days. I have been told and/or observed at least four other people in B-wing exhibiting symptoms, all of whom have bunks in the same row. These symptoms include dry throat and cough, chills, and weakness, with a number of people staying in bed and not eating. As I describe later, these same people have registered high temperatures during temperature check but have not yet been evaluated by medical. I know there are a number of people who are not reporting their symptoms because they are afraid of being moved to Building 5851 where we have heard there is no medical care and no doctors on site.
6. To my knowledge, since May 6, no one at the camp has been evaluated by a nurse or doctor for COVID-19 symptoms and no additional tests have been performed. Although there are fewer of us here than before, we are still sleeping in beds close together. From my observations, most people sleep in bunks with someone to their left and right still, and not empty bunks in between. This is in part because we were able to choose our bunks when A-wing and B-
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Case 1:20-cv-05496-RMB Document 30-6 Filed 05/20/20 Page 3 of 6 PageID: 1368
wing populations were rearranged on April 24. I am fortunate to have chosen a bunk near the bathroom with fewer people around.
7. About a week ago, we heard that people in Building 5851 who have “recovered” would be returning to the camp. That has not yet happened but it makes us very nervous because of the crowded, communal living conditions.
8. On May 6, my locker was searched by corrections officers and printouts of the warden’s Notices to Inmate Population, including the March 30 Notice about makeshift masks being forbidden and the April 11 Notice acknowledging social distancing was impossible, were removed. I was not provided a reason. After that, I went to the computer and also saw that those two Notices had been deleted from the online bulletin board.
9. It is my understanding from corrections officers and nurses that they go back and forth between the camp and the main facility east and west compounds (called “the low”), possibly with increased frequency now because of staff shortages. The obvious added contamination potential scares me. Other people in my unit have shared similar concerns with me.
10. Since COVID-19 started, I have observed that there have been many more officers working double shifts, as I believe staff are calling in sick or taking vacation more often. Since the low is larger, it has more openings, so our typical camp officers will fill in over there, before or after their shifts here. Officers openly tell inmates that they are on the front or back of a double shift.
11. Additionally, officers who are usually at the low come to the camp now. For example, we only have one officer on the night shift now (whereas it used to be two). Now, for every night count (at 7 pm, 9:30 pm, midnight, 3:30 am, and 5 am) an officer comes from the
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Case 1:20-cv-05496-RMB Document 30-6 Filed 05/20/20 Page 4 of 6 PageID: 1369
low and does our count and returns back to the low. After count one time, I heard our night officer mention to another officer that he is working many double shifts. He said he works at our camp from 4 pm to midnight and then goes to the low to work midnight to 8 am.
12. I have been told by nursing staff that they also rotate between the camp and rest of the prison. For example, nursing staff spend an hour at the camp each morning and then again in the afternoon to take temperatures, give out pills, and deal with anything else that is needed. They rotate between the camp, the Unicor building where a group of negatives were sent, Building 5851 where the positives were sent, and the east and west compounds. I had heard this from nursing staff a while ago. On May 13, another inmate asked the nurse on-duty where she works and how, and he told me she explicitly verified this rotation.
13. Until about mid-May, we had temperature checks usually twice per day. The results were consistently low, around mid-96, with some low 94s. Many of us believe these readings are lower than they should be. When the temperature device hits a certain threshold temperature, it is supposed to beep. In the past, people who got beeps were taken to medical to be examined. Significantly, to my knowledge, temperature checks are the only COVID-19 symptom Fort Dix is ostensibly checking prisoners for.
14. On May 13, during the morning temperature check, three inmates who are in bunks close together set off the temperature device. The nurse took all three IDs and told each they would have an oral test in her office after all the temperature checks were complete. However, upon completion, she returned to the three and without explanation handed them back their IDs and never called them in for an oral test. Although I did not observe this, the three of them told me this directly. To my knowledge, none of them have been tested yet. To me this represents a changed protocol, because in the past anyone who had a high temperature reading
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would receive an oral test. Although temperature checks are usually twice per day, that afternoon, we had no temperature check.
15. During afternoon temperature check on May 14, a man who sleeps between two of the three men who registered high temperatures on May 13 set off the control. His ID or name was not taken and he was not evaluated further at the time. I do not observe our temperature readings, even the high ones, being written down anywhere or otherwise recorded to look for patterns or exposure of contacts. There is often a different person performing the temperature checks from day to day, so they may not be able even to observe any recurrence or patterns.
16. My understanding is people do not report symptoms because they are afraid of going to Building 5851 and think we can take care of it better ourselves. I have heard that people in 5851 are only being provided Tylenol and are having to go to the hospital because treatment there is insufficient.
17. I have still not been provided cleaning supplies by Fort Dix such as a spray bottle or disinfectant, even though sometimes one of the day officers tells us to disinfect items we touch, such as gym equipment, phones and computers. I only have bar soap and alcohol-free hand sanitizer, both of which I had to buy off commissary during the two times we have had access to commissary since mid-March
/s/ Michael Scronic (by consent)
I, Tess Borden, certify that I reviewed the information contained in this declaration with Michael Scronic by telephone and, as to footnote 1, by correspondence on May 20, 2020, and that, at that
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Case 1:20-cv-05496-RMB Document 30-6 Filed 05/20/20 Page 6 of 6 PageID: 1371 time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge.
/s/ Tess Borden_______________ Tess Borden (260892018) American Civil Liberties Union of New Jersey Foundation P.O. Box 32159 Newark, New Jersey 07102 (973) 854-1733 tborden@aclu-nj.org
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P.O. Box 32159 Newark, NJ 07102
Tel: 973-642-2086 Fax: 973-642-6523
info@aclu-nj.org www.aclu-nj.org

TESS BORDEN, ESQ. Staff Attorney
tborden@aclu-nj.org 973-854-1733

May 20, 2020
VIA ECF
The Honorable Renee Marie Bumb United States District Judge Mitchell H. Cohen Building & U.S. Courthouse 4th & Cooper Streets, Room 1050 Camden, New Jersey 08101

Re: Wragg, et al. v. Ortiz, et al. Civil Action No. 20-cv-5496
Dear Judge Bumb:
In accordance with the Court’s May 12, 2020 order, enclosed is Petitioners’ Memorandum of Law in further support of Petitioners’ Motion for a Preliminary Injunction and in opposition to Respondents’ Motion to Dismiss.
It is our understanding that, under Local Rule 7.2, the length of a brief in opposition to a motion to dismiss is ordinarily limited to 40 pages and a reply to an opposition to a motion for preliminary injunction is ordinarily limited to 15 pages, when using proportional 14-point font. Petitioners respectfully submit that the significance of this matter supports the filing of an over-length consolidated submission. To the extent the Court grants Respondents leave to file an oversize brief, see Motion to Dismiss at 35 n.15 and Exhibit 8 (dkt. no. 28), Petitioners respectfully ask that they also be granted leave to file an oversize brief in response.
We appreciate the Court’s attention to this matter.
Respectfully,
/s/ Tess Borden
Tess Borden Co-Counsel for Petitioners

 
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CRAIG CARPENITO United States Attorney J. ANDREW RUYMANN MARK E. COYNE ELIZABETH A. PASCAL JOHN F. BASIAK JR. JOHN T. STINSON Assistant U.S. Attorneys 402 East State Street, Room 430 Trenton, NJ 08608 Attorneys for Respondents
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, et al., Petitioners,
v. DAVID E. ORTIZ, et al.,
Respondents.

Hon. Renée Marie Bumb, U.S.D.J. Civil Action No. 20-cv-5496

RESPONDENTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS

Case 1:20-cv-05496-RMB Document 33 Filed 05/21/20 Page 2 of 17 PageID: 1375 TABLE OF CONTENTS
PRELIMINARY STATEMENT ..................................................................................... 1 ADDITIONAL FACTS ................................................................................................... 1 ARGUMENT .................................................................................................................. 2 I. Despite What Petitioners Say, this Court Lacks Jurisdiction over the Petition
and the PLRA Bars the Relief They Seek. .............................................................. 2 II. Despite What They Say, Petitioners Have Not Stated a Viable Claim Under the
Rehabilitation Act. ................................................................................................... 8 III.Despite What They Say, Petitioners Cannot Pursue Class Relief. ...................... 11 CONCLUSION............................................................................................................. 14
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PRELIMINARY STATEMENT “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.” Turney v. Safley, 482 U.S. 78, 84–85 (1987). “Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.” Id. Those principles carry even greater weight in times like these. Everyone—not just those at FCI Fort Dix—confronts risks from the COVID-19 pandemic, and the Federal Bureau of Prisons is carrying out its mission responsibly to mitigate those risks. Yet Petitioners ask this Court to ignore the deference that Congress requires and throw judicial restraint to the wind. They insist this Court has jurisdiction under 28 U.S.C. § 2241 to entertain their challenges to the conditions of their confinement at FCI Fort Dix. They insist they can evade the strictures of the Prison Litigation Reform Act—even though they are demanding release of hundreds, if not thousands, of inmates—merely by alleging that nothing else can ensure their safety during the balance of their terms of imprisonment. And they insist they have legally viable claims under the Rehabilitation Act and can pursue a class-based remedy. They are wrong in all respects, and this Court should dismiss their hybrid § 2241 petition/civil complaint.
ADDITIONAL FACTS Petitioners advance an expert declaration and five declarations by present and former inmates with their opposition papers. Those declarations include assertions not included in Petitioners’ initial papers. Accordingly, Respondents are providing a second declaration, dated May 21, 2020, from Dr. Nicoletta TurnerFoster, the Clinical Director of FCI Fort Dix, with exhibits. Dr. Turner-Foster

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addresses—and corrects—Petitioners’ assertions and speculations on a variety of topics. Those include BOP’s decision to use an Abbott testing machine and its approach to testing in general; the alleged cross-contamination of staff between the COVID-19 positive inmates and the rest of the Low compound, and the equipment they use to provide services to the inmates; the alleged inadequacy of medical care for those inmates in the isolation unit; and the alleged inaccurate reporting of hospitalizations from the institution.
In addition, on May 21, 2020, the Court issued a text order that inquired “whether Phase Six of the BOP’s Action Plan has been extended beyond May 18, 2020, and if so, until when.” ECF No. 32. Respondents provide information on Phase 7 of BOP’s Action Plan in ¶¶ 3–5 of Dr. Turner-Foster’s Declaration. On Monday, May 18, 2020, the Director of the BOP ordered the implementation of Phase 7 of the agency’s COVID-19 Action Plan. This phase extends all measures from Phase 6, including all measures to contain movement and decrease the spread of the virus. The Phase 7 Action Plan will remain in place through June 30, 2020, at which time the plan will be evaluated. See Declaration of Dr. Nicoletta Turner Foster, Exhibit 1 (BOP Memorandum – COVID-19 Phase 7 Action Plan, dated May 18, 2020).
ARGUMENT I. Despite What Petitioners Say, this Court Lacks Jurisdiction over the
Petition and the PLRA Bars the Relief They Seek. The Supreme Court has declared “in no uncertain terms” that “when a prisoner’s claim would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of habeas corpus,’ and may be brought, if at all,” as a civil rights claim. Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 84 (2005)). And the Supreme Court has never “recognized habeas” as “even an available” remedy “where the relief sought would “‘neither terminat[e] custody,
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accelerat[e] the future date of release from custody, nor reduc[e] the level of custody.’” Id. at 534 (quoting Dotson, 544 U.S. at 86 (Scalia, J., concurring)).
Release to home confinement under BOP supervision does not count as a reduction in the “level of custody” in this context. The Third Circuit has long “held that a claim to be entitled to home furlough is a civil rights claim, not a habeas corpus claim, because if successful it would merely change the location where the prisoner’s sentence is to be served.” Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991); see Wright v. Cuyler, 624 F.2d 455, 458 (3d Cir. 1980). That is because a prisoner who is not “seeking a judgment at odds with his conviction or with the State’s calculation of time to be served” is not raising a claim “on which habeas relief could [be] granted on any recognized theory.” Muhammad v. Close, 540 U.S. 749, 754–55 (2004) (per curiam).
Despite Petitioners’ assertions, Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005), did not hold otherwise. Opp. at 18–20. The outcome there meshed perfectly with a traditional basis for § 2241 jurisdiction: assessing whether BOP was carrying out the sentence in a manner consistent with the sentencing court’s judgment. See Cardona v. Bledsoe, 681 F.3d 533, 536 (3d Cir. 2012) (“Woodall was challenging the inconsistency between the sentencing court’s recommendation and BOP’s refusal to abide by that recommendation.”). Beyond that, the Woodall petitioner could plausibly argue that, in executing his sentence, BOP had failed to comply with a statutory command to consider certain factors before making individual placement decisions in carrying out the sentence. Woodall, 432 F,3d at 245–46.
Neither circumstance applies here. Petitioners do not claim their confinement at FCI Fort Dix conflicts with “any express command or recommendation in” their “sentencing judgment[s].” Cardona, 681 F.3d at 537; see Setser v. United States, 566 U.S. 231, 244 (2012) (acknowledging that, if BOP’s determination conflicts with “the
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District Court’s judgment,” then the prisoner “may seek a writ of habeas corpus”). Nor do they allege that BOP is disregarding a statutory command. And in trying to skirt the PLRA, Petitioners claim they merely seek a “prison transfer order,” not a reduction, alteration, or correction in their sentence. Opp. Br. at 38. Because they seek only to change where they serve their terms of imprisonment, their claims “also would not necessarily result in a change to the duration of” their sentences. Cardona, 681 F.3d at 537. That means this Court lacks jurisdiction over their § 2241 claims. Id. at 538.
In arguing otherwise, Petitioners invoke non-precedential opinions and decisions from other district courts, including two by the same district judge. Opp. at 2–3, 17, 19–25. Non-precedential opinions, of course, “are not precedents for the district courts of this circuit.” In re Grand Jury Investigation, 445 F.3d 266, 276 (3d Cir. 2006). And a “decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quotation marks omitted).
But if this Court intends to rely on non-binding precedent, then it should consider the non-binding-precedent that doesn’t favor the Petitioners’ expansive theory of § 2241’s scope. For example, one panel of the Third Circuit held that a “claim of cruel and unusual punishment” predicated upon the petitioner’s being “transported in shackles and a belly-chain around the country with stops in the ‘holes’ of various federal prison facilities” fell “outside the realm of challenges which may be brought in habeas.” Stanko v. Obama, 422 F. App’x 146, 148 (3d Cir. 2011) (per curiam).
Meanwhile, no controlling precedent has ever identified a circumstance where a prisoner could invoke habeas corpus to challenge conditions of confinement. And the Ninth Circuit has held that the remedies under § 2241 and § 1983 are mutually
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exclusive. See Nettles v. Grounds, 830 F.3d 922 (9th 2016) (en banc). So if a claim can be brought under § 1983 (or in this case, Bivens), then it cannot be brought under § 2241. In any event, “a habeas court is not bound in every case to issue the writ.” Munaf v. Geren, 553 U.S. 674, 693 (2008). Thus, even when “the habeas court has the authority to grant relief, it must consider” whether “that power ought to be exercised.” Reese v. Warden Philadelphia FDC, 904 F.3d 244, 247 (2018) (quotation marks omitted). Here, there are adequate alternatives to § 2241: court-ordered reductions of sentence through 18 U.S.C. § 3582(c)(1)(A); and early transfers by BOP to home confinement through the CARES Act and 18 U.S.C. § 3624(c). Those remedies are not unavailable or inadequate merely because Petitioners would rather obtain their desired relief more quickly or would not like the outcomes in particular cases.
The PLRA. But even if Woodall’s broader dicta still controls here, despite Cardona, the most Petitioners could obtain would be an order “requiring the BOP to consider—in good faith—whether or not [he] should be transferred to” home confinement or another facility on an individualized basis in light of the statutory factors. Woodall, 432 F.3d at 251. That is a far cry from an order directing the mass release of inmates from FCI Fort Dix. But mass release—what Petitioners call “temporary enlargement of custody”—is the very relief they are demanding. And that, in turn, runs headlong into at least two Congressional prohibitions.
First, Congress has decreed that BOP’s decisions concerning an inmate’s “designation of a place of imprisonment” are “not reviewable by any court.” 18 U.S.C. § 3621(b). Petitioners all but concede that a transfer to home confinement is a “designation of a place of imprisonment” because they would remain (at least technically) in BOP custody. Opp. at 38–39. Second, putting aside whether Petitioners could possibly satisfy its exhaustion requirement, the PLRA also requires that any “prisoner release order” be “entered only by a three-judge court,”
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and only after “a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation ... sought to be remedied” and “the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3).
Petitioners don’t even acknowledge § 3621(b), and they resort to linguistic legerdemain to distinguish § 3626(a)(3). The latter provision does not apply to “habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). So Petitioners pretend they are only challenging the “fact of their confinement.” Opp. at 16–17, 35. Not so. The PLRA tracks the basic distinction between habeas suits challenging the “fact or duration of confinement itself,” and civil actions “challenging the conditions of confinement.” Porter v. Nussle, 534 U.S. 516, 527–28 (2002) (citation omitted). If the “relief” sought “would not prevent the State from implementing” the sentence, then the prisoner’s claim is not “a challenge to the fact of the sentence itself.” Hill v. McDonough, 547 U.S. 573, 579–80 (2006).
If Petitioners prevailed here, that would not “necessarily imply the invalidity of their convictions or sentences.” Wilkinson, 544 U.S. at 82 (brackets and quotation marks omitted). Nor would success entitle them to release, but only to the improvement of the challenged conditions. In any event, seeking “temporary enlargement of custody” cannot automatically convert a suit to a habeas “fact or duration” challenge because the PLRA provides that actions challenging “prison conditions” may lead to release from a particular facility in rare circumstances where the conditions cannot be redressed. 18 U.S.C. § 3626(a); see Brown v. Plata, 563 U.S. 493 (2011) (applying those PLRA provisions where prisoners alleged that deficiencies in medical care constituted an Eighth Amendment entitling them to orders granting the release or transfer of a portion of the state prison population).
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Petitioners’ alternative bases for evading the PLRA contravene the text of the statute. According to them, so long as this Court orders that they stay in some form of BOP custody, that order won’t count as a PLRA “prisoner release order.” Opp. at 38. Alternatively, they claim that this aspect of the PLRA would apply only if “the primary basis” for their “claim is overcrowding.” Opp. at 30. Under the PLRA, however, “[t]he term ‘prisoner release order’ includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population.” 18 U.S.C. 3626(g)(4) (emphasis added). The order Petitioners seek here plainly would have that effect. And Brown recognized that an order allowing state officials to “comply by … transferring prisoners to [other] facilities,” was still a “prisoner release order” because it had the “‘effect of reducing or limiting the prison population.’” 563 U.S. at 511 (quoting 18 U.S.C. 3626(g)(4)).
Nor does it matter that § 2241 might theoretically be available in an extraordinary case to challenge conditions of confinement. Opp. at 16–18 & n.6. Section 3626(g) does not exclude all “habeas corpus proceedings”; it excludes only those “challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2) (emphasis added). So even if Petitioners could resort to § 2241 to bring their Eighth Amendment claim, this Court by itself cannot grant the broad relief they seek. That Eighth Amendment claim could never succeed, in any event, as Respondents explained in their initial brief.
For example, Petitioners cannot show that the mitigated health risk at FCI Fort Dix is “so grave” that it would “violate[] contemporary standards of decency to expose anyone unwillingly to” it. Helling v. McKinney, 509 U.S. 25, 36 (1993). COVID-19 poses risks confronting not only prisoners but law abiding citizens nationwide, including front-line workers and vulnerable nursing home patients. The CDC has issued guidance for appropriately mitigating the risks in correctional
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facilities, explaining that inmates may continue to be detained in “housing units” in which bunks “ideally” are separated by at least six feet, but that such separation and other “social distancing strategies” for recreation, meals, and other activities “need to be tailored to the individual space in the facility.” CDC Interim Guidance 11 (emphasis omitted). That expert guidance is contrary to the view that risks at FCI Fort Dix are so grave that contemporary societal standards wholly forbid them.
II. Despite What They Say, Petitioners Have Not Stated a Viable Claim Under the Rehabilitation Act.
Petitioners’ defense of their Rehabilitation Act claim, ECF 30 at 62-66, reveals why this claim must be dismissed. They concede, as they must, that a Rehabilitation Act claim requires a showing of discrimination “by reason of ... disability.” Furgess v. Pennsylvania Dep’t of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019). But pleading “deliberate indifference” by BOP is not enough to meet that statutory requirement. That is because Petitioners’ allegations of deliberate indifference to inmates with disabilities are indistinguishable from their allegations of Eighth Amendment deliberate indifference to the entire population of FCI Fort Dix. See Opp. at 65 (citing ECF 1 ¶¶ 83-99). This cannot qualify as discrimination “solely by reason of their disability,” as is required under the Rehabilitation Act. Docherty v. Cape May Cty., Civ. No. 15-8785 (RMB), 2017 WL 2819963, at *12 (D.N.J. June 29, 2017).
It is not enough merely to say that Petitioners’ status as disabled individuals fulfills this element:
Plaintiffs do not allege that Defendants exclude insulin-dependent inmates from receiving medical treatment. Their claim is that corrections officers determine when inmates can access medical services. Plaintiffs have not alleged that corrections officers permit other inmates to access medical treatment without delay. These facts do not support the conclusion that, solely by reason of their disability, Defendants discriminate against insulin-dependent inmates.
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Id. See also Brown v. Pennsylvania Dep’t of Corr., 290 F. App’x 463, 467 (3d Cir. 2008) (“Brown has not alleged facts sufficient to show that the prison denied him access to mental health treatment ‘by reason of’ his alleged disabilities”).
Petitioners also never explain where they plead discriminatory denial of a service or reasonable accommodation—apart from their broad, conclusory statement that BOP has “to protect” them from COVID-19. They contend that “[v]irtually everything in a prison is a service for purposes of the” Rehabilitation Act. ECF 30 at 64.1 They demand “safe conditions at Fort Dix, and adequate preventative and responsive measures to combat COVID-19.” Opp. at 65. But Petitioners demand that for the larger class as well, not just the disability subclass. Of course, Respondents are working continually to provide “safe conditions” to all inmates at the facility. But for purposes of Rule 12(b)(6), what matters is that, according to their own pleading, Respondents are subject to the same conditions as every other inmate at FCI Fort Dix is.
Tellingly, Petitioners never specify what aspects of life or services at FCI Fort Dix are unequal for them or what requested accommodations BOP denied them. But every case they cite in their brief makes this requirement clear. See, e.g.,Furgess, 933 F.3d at 287 (inmate “was unable to take a shower for three months because the prison staff did not provide him with a handicapped-accessible shower facility”); S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 255 (3d Cir. 2013) (student sued for erroneous disability classification that “prevented her from participating in certain regular-curriculum classes, including science and one year of foreign language during middle school, and higher-level courses in high school”).
1 This statement, as vague and ethereal as it is, pales by comparison to Petitioners’ assertion that “the Subclass is comprised of people whose particular conditions qualify them under the [Rehabilitation Act].” Opp. at 65. Stripped to its core, this phrase amounts to the tautology that “the class of disabled persons is made up of disabled persons.”
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Petitioners cannot plead a Rehabilitation Act claim by merely asserting that (1) they have medical conditions that place them at greater risk to COVID-19; and (2) BOP discriminates by failing to ensure their protection as the result of those medical conditions. ECF 30 at 64-65. The Rehabilitation Act does not provide a cause of action to challenge medical or hygiene services provided by a government entity as improper, incorrect, or insufficient. See Iseley v. Beard, 200 F. App’x 137, 142 (3d Cir. 2006) (noting that the ADA does not guarantee medical treatment or create another route to bring a medical malpractice claim).
Moreover, the notion that the Rehabilitation Act entitles Petitioners to release from incarceration unless BOP provides physical facilities that virtually eliminate all risk from COVID-19 would transform the statute from a remedial civil rights law into a comprehensive legal duty to protect disabled inmates in full from a variety of potential harms. On its face, such a duty would exceed the statutory and constitutional duties owed to other inmates. The Rehabilitation Act does not provide such exceptional, special protections. See Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997) (holding that neither “the ADA” nor “the Rehabilitation Act” provides “remedies so sweeping that they exceed the harms that they are designed to redress.”); Filar v. Bd. of Educ. of City of Chicago, 526 F.3d 1054, 1067 (7th Cir. 2008) (concluding that plaintiff’s “request would have amounted to preferential treatment, which the ADA does not require”).
Petitioners cannot escape the core infirmities in their claim by mischaracterizing them as merely “fact issues.” Opp. at 65. Petitioners did not pursue any administrative remedies with BOP regarding their disabilities, much less exhaust—a point they fail to address at all in their opposition and which is dispositive here. As a result of this failing, Respondents never received notice of any particularized need, service, or accommodation Petitioners were lacking regarding their disabilities and, thus, could make no suitable accommodation. Further,
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Petitioners have not articulated in their pleading or brief what they need to address their disabilities at this time—apart from stating that facilities of their own design or release to their own homes alone will suffice. The Rehabilitation Act does not afford such relief, particularly where Congress granted BOP broad authority regarding inmate placement and prison management. III. Despite What They Say, Petitioners Cannot Pursue Class Relief.
Contrary to Petitioners’ suggestion, Rule 23(a)’s commonality and typicality requirements are not satisfied merely because Petitioners allege an across-theboard “violation of the Eighth Amendment” caused by their fear of contracting COVID-19. See Opp. at 47.
Commonality does not mean “that they have all suffered a violation of the same provision of law.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “Any competently crafted class complaint literally raises common questions” in that respect. Id. (internal quotations and alterations omitted). Rather, commonality “requires the plaintiff to demonstrate that the class members “have suffered the same injury.” Id. at 350–51 (internal quotations omitted); see also Mielo v. Steak ‘N Shake Operations, Inc., 897 F.3d 467, 450 (3d Cir. 2018) (emphasizing the Supreme Court’s “teachings” in Dukes and declining to certify a class based on alleged common violations of the Americans with Disabilities Act).
In this case, the putative class members have not suffered the same injury. Each member has different medical needs and presents a distinct risk profile for contracting COVID-19. Cf. Kress v. CCA of Tennessee, LLC, 694 F.3d 890, 893 (7th Cir. 2012) (“‘Claims of inadequate medical care by their nature require individual determinations, as the level of medical care required to comport with constitutional and statutory standards will vary depending on each inmate’s circumstances, such as preexisting medical conditions.’”); see, e.g., Money v. Pritzker, -- F. Supp. 3d --,
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No. 20-cv-2093, 2020 WL 1820660, at *15 (N.D. Ill. Apr. 10, 2020) (denying proposed inmate class action based on COVID-19).
Indeed, even if there were some similarities in the preexisting medical conditions of inmates resulting in a constitutional violation, Petitioners do not attempt to identify those similarities in their petition or opposition brief. The petition is 163 paragraphs, but Petitioners devote only four paragraphs (one paragraph for each Petitioner) to identifying their alleged preexisting medical conditions. And each of those preexisting medical conditions is distinct (not common to all of them). See Pet. ¶¶ 114–117 (describing Petitioners’ distinct conditions).
The cases cited by Petitioners cannot remedy this conspicuous pleading deficiency and are otherwise distinguishable. In fact, in many respects, Petitioners’ case law only illustrates that a habeas petition is an inappropriate procedural vehicle for Petitioners’ claims. For example, in Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988), the plaintiffs brought a civil rights lawsuit (not a habeas petition) challenging “deteriorated conditions” of confinement at a state prison, which included a leaky roof, dampness, overcrowding, and poor ventilation affecting inmates across the facility. Id. at 171. Those complained-of conditions did not uniquely affect the inmates’ preexisting medical conditions, unlike the situation here. In addition, Hassine applied the “relaxed” pre-2003 Rule 23 standard that is “no longer the law of this circuit.” See Mielo, 897 F.3d at 482–83.
Likewise, in Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009), the plaintiffs brought a civil rights lawsuit (not a habeas petition) alleging the “threat of a serious and undiagnosed contagious skin disease, possibly scabies, spreading through the facility.” Id. at 150. Again, in that situation, the skin disease did not uniquely affect the inmates’ preexisting medical conditions, unlike the situation here. See id. at 157 (rejecting the district court’s reasoning). And even more pertinent, Hagan rested its holding entirely on the pre-2003 Rule 23 standard as understood by Hassine, which
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is no longer the law of this Circuit. See id. at 158 (“On the limited basis of the District Court’s brief opinion, we fail to see how the Plaintiffs in this case failed to satisfy the requirements of Hassaine.”).
Petitioners assert that the Third Circuit’s pre-2003 decision in Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994) allows them to ignore the “disparate effects of [BOP’s] conduct”—in other words, Petitioners’ actual injuries. See Opp. at 51. But the facts of Baby Neal bear no relationship to this case, and Baby Neal does not license the use of conclusory allegations. Baby Neal is another civil rights lawsuit (not a habeas petition) brought on behalf of putative class of children (not convicted criminals in prison) in the legal care and custody of a deficient state government agency. 43 F.3d at 52. The defendants engaged in a “common course of conduct” dispensing with the need for “individualized determinations.” Id. at 57. By contrast, in this case, FCI Fort Dix is making individualized determinations regarding inmates’ medical conditions and eligibility for home confinement. And any Court-ordered release of putative class members will require a fact-specific analysis, if for no other reason than to protect the community from drug traffickers, child predators, fraudsters, and gang members.
Petitioners make the same broad-brush mistake in citing to district court decisions outside of this Circuit. According to Petitioners, those cases stand for the proposition that commonality can be found by evaluating “Defendants’ system-wide response.” See Petitioners’ Opp. Br. at 52-53 (citing Martinez-Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350, at *30 (D. Conn. May 12, 2020); Gomes v. Acting Sec’y, U.S. Dep’t of Homeland Sec., No. 20-cv-453, 2020 WL 2113642, at *3 (D.N.H. May 4, 2020); Alcantara v. Archambeault, No. 20-cv-0756, 2020 WL 2315777, at *5 (S.D. Cal. May 1, 2020); Wilson v. Williams, No. 20-cv-00794, 2020 WL 1940882, at *7 (N.D. Ohio Apr. 22, 2020); Fraihat v. U.S. Immigration & Customs Enforcement, No. EDCV 19-1546, 2020 WL 1932570, at *18 (C.D. Cal. Apr. 20, 2020)). But
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Petitioners’ interpretation of those cases, to the extent that interpretation is correct, cannot be squared with binding Third Circuit precedent cautioning against certifying blanket violations of law without consideration of specific injuries. Cf. Mielo, 897 F.3d 467 at 450.
Finally, Petitioners argue that the district court’s decision in Money, which denied class treatment for COVID-19, has “little persuasive effect.” Opp. at 51 (citing Mays v. Dart, No. 20C2134, 2020 U.S. Dist. LEXIS 73230 (N.D. Ill Apr. 27, 2020)). However, even Mays, which departs from Money in some respects, cites Money as “persuasive authority” in its opinion. See Mays, 2020 U.S. Dist. LEXIS 73230, at *57. And to the extent the Mays court holds that injuries can solely derive from “the Sheriff’s response to the coronavirus pandemic,” see id. at 54, Mays cannot be reconciled with the Third Circuit’s decision in Mielo, 897 F.3d 467 at 450. Thus, the Court should strike Petitioners’ class allegations.2
CONCLUSION For all these reasons and those in the Government’s opening brief, this Court should dismiss Petitioners’ hyrid § 2241 petition/civil complaint in its entirety.
2 In their moving brief, Respondents embedded their discussion of the class allegations within a discussion of the merits of a preliminary injunction. Mov. Br. at 57-59, ECF No. 28-1. That does not affect Respondents’ entitlement to a reply brief under Local Civil Rule 7.2. Petitioners concede in their opposition brief that Respondents effectively submitted a motion to strike the class allegations, which entitles Respondents to a reply as of right. See Petitioners’ Br. at 42 (noting that Respondents filed a “motion to strike Petitioners’ Class allegations”). Moreover, if this Court does not strike Petitioners' class allegations, Respondents reserve the right to move for a stay of any motion to certify the class and to file a full and complete opposition to any motion for class certification.
14

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Dated: May 21, 2020

Respectfully submitted,
CRAIG CARPENITO United States Attorney
By: /s/ J. Andrew Ruymann J. ANDREW RUYMANN Chief, Civil Division MARK E. COYNE Chief, Appeals Division ELIZABETH A. PASCAL Deputy Chief, Civil Division JOHN F. BASIAK JR. JOHN T. STINSON Assistant U.S. Attorneys Attorneys for Respondents

15

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTO CONCEPCION, individually and on behalf of others similarly situated;
Petitioners,
v.
DAVID E. ORTIZ, Warden of the Federal Correctional Institution, Fort Dix and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons,
Respondents.

: : : : : : : Civil Action No. 20-5496 (RMB) : : : : : : : : : :

DECLARATION OF NICOLETTA TURNER FOSTER, M.D.

I, Nicoletta Turner-Foster, M.D., do hereby declare, certify and state as

follows:

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

Bureau of Prisons (Bureau or BOP). I currently work as the Clinical Director at the

Federal Correctional Institution (“FCI”) Fort Dix, New Jersey. I have been

employed by BOP since 2001.

2. I make this Declaration in support of Respondents’ Reply Brief in

Support of Respondents’ Motion to Dismiss and in Opposition to Petitioners’ Motion

for a Preliminary Injunction.

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Action Plan for COVID-19, Phase Seven 3. On Monday, May 18, 2020, the Director of the BOP ordered the
implementation of Phase 7 of the agency’s COVID-19 Action Plan. This phase extends all measures from Phase 6, including all measures to contain movement and decrease the spread of the virus. The Phase 7 Action Plan will remain in place through June 30, 2020, at which time the plan will be evaluated. See Exhibit 1 (BOP Memorandum – COVID-19 Phase Seven Action Plan, dated May 18, 2020).
4. In addition to extending all Phase 6 measures, Phase 7 includes an extension of plans to significantly decrease movement between BOP facilities nationwide. BOP identified specific facilities to handle mandatory movement needs: Oklahoma City, Victorville, and Yazoo City. These locations will provide COVID-19 testing and quarantine for inmates until they can safely transfer to their final destination.
5. BOP also directed that, consistent with existing health and safety protocols, inmates should have access to electronic law library resources at the discretion of facility Wardens. Further, BOP stated that it is unable to offer staff testing at institutions at present, but BOP encouraged Wardens to identify and publish testing sites in the community where interested staff could obtain testing. Response to Petitioners’ Declarations
6. I am aware that Petitioners have filed several declarations in opposition to Respondents’ motion to dismiss the petition and opposition to their motion for a preliminary injunction. Several of those assertions contain incomplete

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and in some instances, incorrect information. In several instances, the declarants did not provide identifying information, which prevented the BOP from investigation of that anecdotal information.
7. The rapid Abbott testing machine is FDA approved and provides immediate results in approximately 20 minutes per inmate. Prior to obtaining the Abbott testing machine, testing was sent to an outside laboratory for testing and would take between two days to one week obtain testing results. The use of the Abbott testing machine has allowed us to significantly increase our testing capability at FCI Fort Dix. The Abbott test machine, along with most viral diagnostic tests, does have a margin of error. We are aware that test results from the Abbott machine can provide a false negative, however positive results are certainly positive. The specifics regarding the margin error rates and science behind instances that might result in a false negative test result, we assume were considered by the FDA when they approved use of the Abbott testing machine for COVID 19. We are mindful of the possibility of a false negative, as clinical decisions are made regarding diagnosis, treatment, isolation, quarantine, inmate movement and management of institution operations, as they relate to COVID-19.
8. Petitioners allege that Respondents have denied inmates who tested negative for COVID-19 with proof of their test results. Any inmate is permitted to request a copy of their medical record to include their COVID-19 test results. We have provided, and continue to provide, COVID-19 test results to many inmates upon their request. Our records indicate that Inmate Scronic has yet to request any

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medical records, including COVID-19 test results. 9. When COVID-19 test ordering was first added to the electronic medical
record, the “print chart” function used for printing an inmate’s entire record, did not automatically include the COVID-19 test result. This issue was brought to the attention of our Medical Records’ clerks and they currently ensure that COVID-19 results are included when an inmate requests his entire chart.
10. After consulting with our Regional Health Service Administrator on May 20, 2020, we were able to attach and configure a printer to the Abbott testing machine. Starting on May 21, 2020, test results from the Abbott machine will be printed and scanned into the inmates’ electronic medical records, in addition to entering the test result value into the electronic medical record point of care testing flow sheet.
11. Petitioners also allege that Health Services is not regularly monitoring or testing of symptoms for COVID-19 at the Camp and the Low compound. That is incorrect. Medical staff who perform temperature checks absolutely have addressed inmates who present with temperatures or other possible COVID-19 symptoms. Any inmate with a fever or symptoms is immediately separated from other staff and inmates and made to wear a mask. Such inmates are then escorted to Health Services for further evaluation.
12. FCI Fort Dix has 2,855 inmates, which required us to develop a realistic plan that could be executed with the staffing resources available. Due to the size and scope of this plan, it was not possible to record every temperature

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reading and negative response to symptoms into each inmate’s medical record. However, for all COVID-19 positive inmates housed in isolation unit 5851, a full set of vital signs and a complete symptom assessment is recorded daily.
13. Petitioners contend that the BOP did not provide masks to the inmates until mid-April. All inmates and staff were provided surgical masks as of April 5, 2020. However, all staff at the Camp began wearing full PPE, including surgical masks, as of April 3, 2020, the date of the first positive COVID-19 result at the Camp. See Exhibit 2 (BOP Memorandum, dated Apr. 3, 2020).
14. We have no evidence of any inmate’s hesitancy to report COVID-19 symptoms for fear of being housed in quarantine and because those inmates house in isolation unit 5851 are not receiving medical treatment. Camp inmates have not had communication with any of the inmate housed in isolation unit 5851, so the information must be based on incorrect assumptions.
15. Petitioners allege that correctional officers and nurses move between the Camp, the East and West sides of the Low Compound, and the isolation unit contained in housing unit 5851, without regard to the potential spread of COVID19. Only essential staff may enter this housing unit and the Camp. They must wear full protective PPE including an N-95 mask, a face shield, a gown, and gloves.
16. From the beginning of the COVID-19 pandemic, Health Services has recognized the benefits of limiting movement of clinical staff between the East and West Compounds and the Camp. To the greatest extent possible, Health Services has carried out this initiative. The nurses and doctors assigned to the East

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compound have remained assigned to the East. The nurses and doctors assigned to the West compound have remained on assigned to the West. Only four nurses and two doctors, all assigned to West compound, have entered isolation unit 5851 to provide evaluation and treatment for COVID-19 positive inmates. The only exception was on one single occasion, when a nurse practitioner assigned to the Camp, entered the isolation unit to assist with daily assessments. None of the nurses or doctors assigned to the East has entered West Compound or isolation unit 5851.
17. In addition, only three correctional officers are assigned to work in the Camp. They cover all three shifts (day, evening, and night) during which they don full PPE. If one of those officers signs up for overtime, he/she is allowed to work only on the West Compound. The BOP cannot deny a staff member overtime who is otherwise eligible to work it. By donning full PPE in this manner, the likelihood of spread is negligible.
18. FCI Fort Dix began testing for COVID-19 only for inmates with symptoms. After receiving additional swabs for send-out testing, on April 22, 2020, we began testing asymptomatic Camp inmates who were pending release from BOP custody. We continued testing asymptomatic Camp inmates using the Abbott testing machine, which we received on April 22, 2020. As of May 6, 2020, all Camp inmates were tested for COVID-19. On May 15, 2020, FCI Fort Dix proposed a plan to begin testing asymptomatic inmates on the East and West Compounds. This plan established goals and priority groups for testing. That plan was submitted to

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the Regional Health Services Administrator, Regional Medical Director, and Regional Infectious Disease Nurse. To date, their approval is pending.
19. With regard to the knowledge of COVID-19 symptoms and the treatment provided in response to those symptoms, FCI Fort Dix continues to use the guidelines and advice from multiple sources, including but not limited to, the BOP’s Health Services Division - Central Office, the Centers for Disease Control, the State of New Jersey’s Health Department, and the Burlington County Health Department. We are confident that all inmates received prompt, appropriate and quality health care for all their COVID-19 related symptoms.
20. Petitioners also allege that equipment, such as food and beverage crates and laundry transport, travel between the isolation unit 5851 and the dining hall, which could contribute to the spread of COVID-19. Staff use the food and beverage carts to feed the inmates in isolation unit 5851 because those inmates are not permitted to leave the unit. Staff sanitize this equipment both before and after exiting the isolation unit and at all times, staff wear full PPE. In addition, inmates confined to isolation unit 5851 wash their own laundry with a designated washer and dryer on the first floor. Laundry staff wash all other inmate (non-isolation unit 5851) laundry and transport the clothing to centralized laundry via laundry carts. Inmates who work in the laundry are not entering 5851.
21. As of today, May 21, 2020, the Camp lifted from a 14-day quarantine period. This quarantine period was a result of the final COVID-positive tests on May 6, 2020. In an effort to destroy any virus remaining on Camp surfaces, the

Case 1:20-cv-05496-RMB Document 33-1 Filed 05/21/20 Page 8 of 20 PageID: 1398
institution hired a commercial COVID-19 disinfecting service to clean thoroughly the entirety of the Camp. The company uses EPA-approved disinfectant and will clean all areas of the Camp, including the kitchen and sleeping quarters. In conjunction with the cleaning, all inmates were provided brand new bedrolls (sheets, blankets, pillow cases) and were required to turn in all used bed linens to Laundry. Inmates also were instructed to wash clothing on the warmest water possible prior to today’s scheduled cleaning. Finally, inmates were instructed to keep all personal items locked in their locker. See Exhibit 3.
22. Petitioners raise the issue of staff testing. Health Services Division Central Office is exploring options to offer testing for staff; however, there is currently no options for staff testing offered by BOP. Currently, the BOP’s Phase 7 Action Plan mentions community testing sites being the option for staff testing. See Exhibit 1. Staff are required to self-report illness, including possible exposure to COVID-19, and they are required to submit to enhanced screening before entering the institution.
23. In response to Petitioners’ allegations that inmates had contact with a COVID-19 positive staff member in Food Service, all inmates assigned to that work detail were notified that they were in contact with a person who tested positive. Medical staff assessed those inmates, which included their vital signs and symptom screening. These encounters were documented in each of those inmate’s medical records. Taking into consideration the staff member’s work schedule, the day he developed symptoms, and the date in which he may have been in close contact with

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the inmate workers, quarantine was not indicated at that time as per the CDC guidelines.
24. Since the beginning of the pandemic, 5 staff members tested positive for the virus. All 5 have fully recovered and returned to work. The fifth staff member described in Petitioners’ brief on pages 11-12 returned to work on May 16, 2020. If any inmate exhibited symptoms of COVID-19 based on interaction with this staff member, they would have been identified during temperature checks/symptoms assessments and tested for the virus.
25. Inmates in isolation unit 5851 are evaluated by Health Service twice daily. If an inmate’s condition should decline, he would be sent to the hospital immediately. Moreover, a medical officer is on call 24/7. If an inmate required hospitalization when Health Services was closed, the Lieutenant on duty contacts the on-call medical provider. At no time is an inmate denied transport to the hospital because a Health Services staff member is not physically present at the institution.
26. Petitioners’ information regarding the hospitalization of inmates related to COVID-19 is mistaken. As it relates to the four COVID-19 positive inmates recently treated in the hospital, only one was transferred to the hospital specifically for COVID-19. The other inmates were transferred for other illnesses and subsequently were diagnosed with COVID-19 during their hospitalization.
27. Inmate #1,

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28. Inmate #2 29. Inmate #3

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31. Attached hereto, please find true and correct copies of the following
documents:
Exhibit 1 BOP Memorandum – COVID-19 Phase Seven Action Plan, dated May 18, 2020;
Exhibit 2 BOP Memorandum, dated Apr. 3, 2020; and
Exhibit 3 BOP Memorandum, dated May 19, 2020.
I declare that any and all records attached to this declaration are true and accurate copies maintained in the ordinary course of business by the Federal Bureau of Prisons. I further declare that the foregoing is true and correct to the best of my knowledge and belief, and is given under penalty of perjury pursuant to 28 U.S.C. § 1746.

________________________________ Nicoletta A. Turner Foster, M.D. Clinical Director

_M__a_y_2_1_,__2_0_2_0___ Date

Case 1:20-cv-05496-RMB Document 33-1 Filed 05/21/20 Page 12 of 20 PageID: 1402 FCI Fort Dix

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Exhibit 1

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Exhibit 2

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U.S. Department of Justice Federal Bureau of Prisons Federal Correctional Institution P.O. Box 38 JBMDL, New Jersey 08640

MEMORANDUM FOR ALL STAFF

April 3, 2020

FROM: SUBJECT:

LCDR Ronell Copeland, RN, QI/ICN Notice to Staff – Quarantine of Camp

Please be advised, the Camp has been placed on quarantine following a Camp offender’s protracted symptomology, despite treatment. The Camper has been isolated in West side medical and tested for COVID-19 as well as other maladies. Although this offender does not fully reflect the symptomology consist with COVID-19, precautions are being taken per Central Office Guidelines to ensure the safety of staff and Camp offenders, in light of the patient’s sluggish clinical recovery.
Consequently, the Camp will remain on quarantine through April 14, 2020 or until the suspected case is found to be negative for COVID-19. All staff entering the identified quarantined field at the Camp must dawn proper PPE consisting of a surgical mask, gown, gloves and face shield or goggles. All meals will be made available in the usual fashion. Pill-line, sick call and all patient care will be rendered by health care staff outfitted with the proper PPE in the Health Service Unit. Staff assigned to the Camp should observe social distancing guidelines and self-report any symptoms of cough, fever or shortness of breath. Temperatures will be taken twice daily and symptomatic inmates will be isolated accordingly. There will be no offender movement in or out of the Camp, this includes all work details outside Camp confines.
Please reinforce the need for frequent hand washing, avoiding noticeably ill offenders, social distancing and observing proper cough etiquette with the inmate population. Inmates should also be instructed to report symptoms including fever, cough or shortness of breath.

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Exhibit 3

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Case 1:20-cv-05496-RMB Document 33-2 Filed 05/21/20 Page 1 of 1 PageID: 1411

CRAIG CARPENITO United States Attorney J. ANDREW RUYMANN MARK E. COYNE ELIZABETH A. PASCAL JOHN F. BASIAK JR. JOHN T. STINSON Assistant U.S. Attorneys 402 East State Street, Room 430 Trenton, NJ 08608 Attorneys for Respondents

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, et al., Petitioners,
v. DAVID E. ORTIZ, et al.,
Respondents.

Hon. Renée Marie Bumb, U.S.D.J. Civil Action No. 20-cv-5496
CERTIFICATE OF SERVICE

I, JOHN F. BASIAK JR., hereby certify that on May 21, 2020, the following documents were filed and served on Petitioners’ counsel via the Court’s ECF system: Reply Brief in Support of Respondents’ Motion to Dismiss; May 21, 2020 Declaration of Nicoletta Turner-Foster, M.D. (redacted version); and Certificate of Service. In addition, Petitioners’ counsel will be served via e-mail with an unredacted version of the May 21, 2020 Declaration of Nicoletta Turner-Foster, M.D.

By: /s/ John F. Basiak Jr.
JOHN F. BASIAK JR. Assistant U.S. Attorney Attorney for Respondents

 
 Case 1:20-cv-05496-RMB Document 40 Filed 05/27/20 Page 1 of 89 PageID: 1455

[Dkt. Ent. Nos. 9 and 28]

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE

TROY WRAGG, et al.,

:

:

Petitioners, :

:

v.

:

:

DAVID E. ORTIZ, et al., :

:

Respondents. :

_________________________:

CIVIL NO. 20-5496 (RMB) OPINION

Appearances:

Jeanne Locicero, Esquire Tess Meiling Borden, Esquire American Civil Liberties Union
Of New Jersey Foundation 89 Market Street, 7th Floor P.O. Box 32159 Newark, New Jersey 08102
Attorneys for Petitioners

John Francis Basiak, Jr., AUSA Mark E. Coyne, AUSA Elizabeth A. Pascal, AUSA J. Andrew Ruymann, AUSA John T. Stinson, AUSA United States Department of Justice Office of the U.S. Attorney 401 Market Street P.O. Box 2098 Camden, New Jersey 08101
Attorneys for Respondents
1

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Bumb, United States District Judge:
I. INTRODUCTION In January 2020, the Centers for Disease Control and Prevention
began issuing Guidelines to the American public to protect against the coronavirus disease 2019 (COVID-19), a vicious and insidious disease that had suddenly attacked the country. One of the later Guidelines recommended that people stay at least six feet apart (about two arms’ length) from other people and stay out of crowded places and avoid mass gatherings. Ubiquitous reminders to “social distance” or “physical distance” are now part of everyday life. But what if such distancing is not possible – such as in a prison setting? Should inmates (no matter the length of their sentences) be released to a setting where they can physically distance? Particularly the aged and medically vulnerable inmates? Petitioners, inmates at the Federal Correctional Institution at Fort Dix, New Jersey, say yes. They contend that they, as well as several hundreds of other vulnerable inmates, are being held in violation of the Eighth Amendment because “there is no set of protective measures that [prison officials] can feasibly implement to contain the spread of COVID-19 in Fort Dix.” (Dkt. No. 30, at 38.) The only adequate remedy, they insist, is a “temporary enlargement of custody” – a term they purposefully use. In reality, Petitioners seek the immediate large-scale release of
2

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hundreds of inmates to various places outside the prison’s walls: “a hospital, halfway house, a person’s home, or other setting” which would be determined on an inmate-specific basis “so they can begin to practice distancing and protect themselves against [COVID-19].” (Dkt. No. 9-1, at 14, 15.) Petitioners have filed a “Complaint-Class Action for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus.”
Respondents, the Warden of FCI Fort Dix and the Director of the Bureau of Prisons, respond that the Federal Bureau of Prisons has made “extraordinary efforts” to safeguard its inmates. And while even their best efforts have not spared all inmates from contracting COVID19, their efforts have been particularly successful at FCI Fort Dix. To date, only one inmate has been hospitalized due to COVID-19.1 All have recovered. This demonstrates that there are clearly measures in place at FCI Fort Dix that can mitigate effectively the spread of COVID-19. But more to the point, Respondents contend that Petitioners’ claims are the clever product of linguistic legerdemain in an effort to invoke this Court’s habeas corpus jurisdiction. Petitioners’ challenges to the conditions of their confinement at FCI Fort Dix are merely dressed up as challenges to the “fact” of their confinement
1 The parties dispute this number, Petitioners contend that there have been four hospitalizations. In reply, Respondents provided the medical records of other inmates who were hospitalized because of serious medical conditions but also tested positive for COVID-19.
3

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to avoid dismissal of their lawsuit on jurisdictional grounds. Simply put, but for the conditions related to the COVID-19 pandemic, Petitioners’ claims would not exist. Thus, because these kinds of conditions-of-confinement challenges are not cognizable in a petition for writs of habeas corpus, Respondents have moved to dismiss the Petition. Respondents have also moved to dismiss Petitioners’ claims under the Rehabilitation Act for failure to state a claim because there is no allegation that the prison officials denied them any benefit solely by reason of their alleged disabilities. In the alternative, Respondents contend that Petitioners cannot satisfy the requirements for either class certification under Federal Rule of Civil Procedure 23(a) or a preliminary injunction.
For the reasons set forth below, the Court grants Respondents’ motion in its entirety and denies Petitioners’ motion for preliminary injunctive relief and dismisses the Complaint.
II. STATEMENT OF FACTS
A. Background: Security at Fort Dix and Inmate Placement The Federal Correctional Institution at Fort Dix (“FCI Fort Dix”) is the largest federal prison in the United States in terms of capacity, capable of housing up to 5,000 inmates, but currently housing approximately 2,900 inmates. (Declaration of James Reiser (“Reiser Decl.”) ¶3, Dkt. No. 28-2.) It is a “low security” facility
4

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“with an adjacent minimum security satellite camp.” See FCI Fort Dix, Bureau of Prisons website.2 The satellite camp (“the Camp”) is completely separate from the low compounds. (Id.)The Camp has a relatively low staff-to-inmate ratio and dormitory-style housing. (Id. ¶6.) The Camp currently has approximately 124 inmates, all of whom tested negative for COVID-19. (Id.; Declaration of Nicoletta Turner-Foster, M.D. (“Turner-Foster Decl. I”) ¶28, Dkt. No. 28-6.)
The majority of FCI Fort Dix’s inmates reside in its low-security facility (referred to as the “Low”). (Reiser Decl. ¶5.) The Low is divided into two compounds (“East” and “West”), which are divided into 370-person-capacity “units.” (Id. ¶¶3, 4.) The East and West compounds are separated by fencing and roadways and have militarystyle dormitories, which were converted into a prison in the early 1990s. (Id.) The housing units have three floors, consisting of 12man rooms and a small number of 2-man rooms, with communal showers and television rooms. (Id. ¶4.) The determination of whether to place an inmate in the Camp or in the Low is based on a number of individualized assessments of an inmate, one of which is called a “security designation and custody classification.” BOP Program
2 Available at https://www.bop.gov/locations/institutions/ftd/ (last visited May 26, 2020).
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Statement No. P5100.08, Inmate Security Designation & Custody Classification, at 1.3
Petitioners Troy Wagg and Leonard Bogdan are currently housed in the west compound of the Low. (Compl. ¶¶7, 9.) Petitioners Michael Scronic and Eliezer Soto-Concepcion are currently housed at the Camp. (Id. at ¶¶ 8, 10.) All Petitioners allege that they have medical conditions that make them medically vulnerable to COVID-19. Those conditions are described below.
B. BOP’s Action Plan to Combat the Spread of COVID-19 Since January 2020, BOP has been coordinating with subjectmatter experts, including the World Health Organization and the Centers for Disease Control (“CDC”), on a COVID-19 action plan.4 As a result, BOP implemented a multi-phased operational plan called the “Action Plan,” which seeks to “mitigate the spread of COVID-19” among inmates and staff, continue effective operations of the federal prison system, and ensure that staff remain healthy and available for duty. Id. To be clear, there is little dispute between the parties that these measures proscribed by the CDC and other agencies, as described herein, are being taken. The heart of the dispute is Respondents’
3 Available at https://www.bop.gov/policy/progstat/5100_008.pdf (last visited May 26, 2020). 4 Available at Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/ (last checked May 26, 2020).
6

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belief that no measures, absent their release to afford social distancing, would address their concerns. Indeed, as set forth below, Respondents even disagree with the CDC’s interim guidance regarding correctional institutions.
As of May 18, 2020, the time of the filing of the Motion to Dismiss, BOP was in “Phase 6” of its Action Plan, an extension of the measures taken in Phase 5 as of April 1, 2020. (Turner-Foster Decl. I ¶14, Dkt. No. 28-6.) All inmates in every BOP institution must be secured in their assigned cells/quarters for a period of at least 14 days, to stop the spread of COVID-19. (Turner-Foster Decl. I ¶12(a), Dkt. No. 28-6.) Group gathering is limited, with attention to social distancing to the extent possible, for commissary, laundry, showers, telephone, and Trust Fund Limited Computer System (TRULINCS) access. (Id. ¶12(e)). Staff and inmates are issued appropriate face coverings and strongly encouraged to wear the face coverings in public areas when social distancing cannot be achieved. (Id. ¶12(h)).
When inmates are newly admitted to FCI Fort Dix, they are screened for COVID-19 exposure risk factors and symptoms. (Id. ¶¶6, 20.) “Asymptomatic inmates with risk of exposure are placed in quarantine.” (Id.) “Symptomatic inmates are placed in isolation until they test negative for COVID-19 or are cleared by medical staff as meeting CDC criteria for release from isolation.” (Id.) In addition, all staff were subjected to enhanced health screening in areas of
7

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“sustained community transmission,” as determined by the CDC, and at medical referral centers. (Id. ¶7.) “Staff registering a temperature of 100.4 degrees Fahrenheit or higher are barred from the facility on that basis alone.” (Id.)
Contractor access to FCI Fort Dix is restricted to those performing essential services (e.g., medical or mental health care, religious, etc.) or those who perform necessary maintenance on essential systems. (Id. ¶12(i)). Contractors who require access are screened for symptoms and risk factors. (Id. ¶12(i)). Social visits were stopped as of March 13, 2020. (Id. ¶12(j)). Legal visits are permitted on a case-by-case basis; lawyers are subject to health screening before admission. (Id.)
As of the writing of this Court’s Opinion, BOP is now in Phase 7 of the Action Plan. This phase extends all measures from Phase 6 (as described above) through June 30, 2020, at which time the plan will be evaluated. (Declaration of Nicoletta Turner-Foster, M.D. (“Turner-Foster Decl. II”), Ex. 1, Dkt. No. 34 at 13-15.) Phase 7 includes an extension of plans to significantly decrease movement between BOP facilities nationwide. (Turner-Foster Decl. II ¶3, Dkt. No. 33-1.) BOP stated that it is unable to offer staff testing at institutions at present, but BOP encouraged Wardens to identify and publish testing sites in the community where interested staff could obtain testing. (Id. ¶5.)
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C. FCI Fort Dix’s Implementation of the Action Plan To implement the Action Plan, FCI Fort Dix has a Health Services Department, with clinical staff consisting of four physicians, ten mid-level providers, eleven registered nurses, two infection control/improving performance nurses, two medication technicians and four pharmacists. (Turner-Foster Decl. I ¶15, Dkt. No. 28-6.) From the outset of the COVID-19 pandemic, FCI Fort Dix officials have educated inmates and staff regarding the virus and measures that they should take to stay healthy. (Id. ¶17.) Beginning on March 16, 2020, all staff and contractors entering FCI Fort Dix must complete a medical questionnaire and temperature check. (Turner-Foster Decl. I ¶18, Dkt. No. 28-6.) If they have COVID19 symptoms or fever, they are sent home. (Id.) All new inmates arriving at FCI Fort Dix are also screened for fever or symptoms. (Id. ¶20). New inmates are placed in an automatic 14-day quarantine in a housing unit designated only for new inmates, prior to release to their assigned housing units. (Id.) In accordance with CDC guidance, quarantine and isolation areas were established at the outset. (Id. ¶22.) Upon the outbreak at the Camp, it was decided to use housing unit 5851 (“5851”) in the Low security as the isolation unit, because there was not a facility large enough in the Camp. (Id.) Staff must wear N-95 masks for entry to the isolation unit and for escorting inmates on medical trips to
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other facilities. (Id. ¶19.) COVID-19 positive inmates are housed on the second floor of 5851; and, upon a ten-day isolation and symptomfree period, recovering inmates are housed on the third floor until release back to the general population. (Id. ¶22.) Only essential staff wearing full PPE are permitted to enter this housing unit. (Id. ¶27.)
On March 20, 2020, FCI Fort Dix issued updated cleaning and disinfection guidance, directing that frequently touched surfaces must be cleaned every hour. (Declaration of Adam Sassaman5 (“Sassaman Decl.”) ¶¶14-15, and Att. 3, Dkt. No. 28-4.) With respect to personal hygiene, on March 22, 2020, FCI Fort Dix installed 300 hand soap dispensers for inmate areas, which are continuously supplied with soap. (Sassaman Decl. ¶¶8, 17-18.) Prior to installation of soap dispensers, inmates were provided all-in-one soap for showering and hand-washing. (Id. ¶8.) They could also purchase hand soap and sanitizer in the commissary. (Id.)
As of April 3, 2020, staff and orderlies regularly and comprehensively clean all facilities at FCI Fort Dix, including: (1) hourly disinfection of frequently touched surfaces; (2) regular cleaning of all electronics and equipment, including all inmate restraints; (3) following new protocols for laundry and the cleaning
Adam Sassaman is the Safety and Occupational Health Administrator at FCI Fort Dix. (Sassaman Decl., ¶1, Dkt. No. 28-4.)
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of soft, porous items; (4) using backpack sprayers during each orderly shift (multiple times daily) to disinfect telephone booths, trash receptacles, drinking fountains, bathrooms and bathroom fixtures, offices, doors, furnishings, and all walking surfaces including stairs; and (5) disinfecting all cleaning tools including mops. (Id. ¶21 and Atts. 4-5.) Guidance is provided for staff and orderlies to maintain personal hygiene on the job. (Id.) Cleaning and disinfection protocols at FCI Fort Dix are designed to meet or exceed guidance from BOP and the CDC. (Id. ¶¶5, 31.)
All staff at the Camp began wearing full PPE, including surgical masks, as of April 3, 2020, the date of the first positive COVID-19 result at the Camp. (Turner-Foster Decl. II ¶13 and Ex. 2, Dkt. No. 33-1). As of April 5, 2020, all inmates and staff received surgical masks. (Id.)
In April 2020, FCI Fort Dix obtained an Abbott testing machine that allows the facility to test approximately 75 inmates in a 24hour period. (Turner-Foster Decl. I ¶23, Dkt. No. 28-6.) The FDA has issued an alert about the accuracy of this test. (Declaration of Joe Goldenson, M.D.6 (“Goldenson Decl.”) ¶50, Dkt. No. 30-1.) Studies have shown a 15 to 48 percent false negative rate. (Id.)
6 Dr. Goldenson is a physician with 33 years of experience in correctional healthcare. (Goldenson Decl. ¶1, Dkt. No. 30-1.)
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FCI Fort Dix has more than 400 Abbott test kits on hand and expects to receive 250 more test kits per week going forward. (TurnerFoster Decl. I ¶23, Dkt. No. 28-6.) The tests take twenty minutes per inmate and provide immediate results. (Id.) If an inmate were to complain about symptoms associated with COVID-19, he would immediately be escorted to the health services building and examined by a clinician. (Id.) If COVID-19 was suspected, he would be tested immediately using the Abbot machine; and if positive, he would be immediately isolated in 5851. (Id.) One inmate from Low has been tested for COVID-19 after examination by a clinician and he tested negative. (Id.)
On behalf of Respondents, Dr. Turner-Foster states that the rapid Abbott testing machine is FDA-approved. (Turner-Foster Decl. II ¶7, Dkt. No. 33-1.) Use of the Abbott testing machine has allowed FCI Fort Dix to significantly increase testing capability. (Id.) As with most viral diagnostic tests, the Abbott test machine has a margin of error, and staff are aware of the possibility of a false negative. (Id.) Given the possibility of a false negative, clinical decisions are made regarding diagnosis, treatment, isolation, quarantine, inmate movement and management of institution operations to address all concerns. (Id.)
On April 16, 2020, staff and inmate masks became mandatory. (Turner-Foster Decl. I ¶24, Dkt. No. 28-6.) Staff and inmates were
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issued a weekly supply of surgical masks. (Id.) During the week of April 29, 2020, inmates and staff were supplied three reusable cloth masks. (Id.) Laundry staff wash inmate masks twice weekly, and staff were issued guidance on how to wash and use masks. (Id.)
D. Current Conditions and Health and Screening Protocols FCI Fort Dix has implemented different protocols for the Low, the Camp, and 5851. (Gov’t Brief, Dkt. No. 28-1 at 23.) All inmates are regularly screened for symptoms of infection and all activities are managed so as to minimize congregate activity and promote distancing. (Id.)
1. Circumstances at the Camp The first inmate at FCI Fort Dix tested positive for COVID-19 on April 3, 2020, and he was isolated in the Camp. (Turner-Foster Decl. I ¶25, Dkt. No. 28-6.) Twice daily temperature checks were initiated at the Camp. (Id.) Inmates showing or reporting symptoms of the virus were also isolated and tested. (Turner-Foster Decl. I ¶25, Dkt. No. 28-6.) The Camp was quarantined and any staff member entering the Camp had to wear PPE including surgical masks, gowns, face shields, goggles and gloves. (Id.) All services were provided within the Camp. (Id.) According to Petitioner Scronic, the last COVID-19 test was performed at the Camp on May 5, 2020, and nine prisoners tested
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positive and were moved to 5851. (Declaration of Michael Scronic7
(“Scronic Decl.”) ¶¶4, 6, Dkt. No. 30-6.) Among those nine was an
inmate kitchen line server who had been out sick from his work
assignment the previous week but had worked on May 5 and during the
breakfast shift on May 6, before receiving his positive test result.
(Id. ¶4.) Also among those nine who tested positive was a man who had
been experiencing symptoms the previous week and was told to wait
until the mass testing was performed for his wing. (Id.) Scronic
reports rumors that inmates are afraid to report their COVID-19 like
symptoms because they are “afraid of going to Building 5851” (Id.)
where those inmates who test positive are quarantined.8 As of May 18,
2020, only 124 inmates, who have tested negative for COVID-19 virus,
remain at the Camp where there is space to social distance. (Turner-
Foster Decl. I ¶28, Dkt. No. 28-6.) As of that date, FCI Fort Dix had
administered 274 tests using the Abbott testing machine, which
included testing of the entire Camp population. (Id. ¶27.) In all,
7 Michael Scronic, one of the four petitioners, is an FCI Fort Dix inmate who is housed in the B-wing of the Camp. (Scronic Decl. ¶¶15.) 8 As the Respondents point out, much of what Petitioner Scronic states is based upon anecdotal information or speculation. For example, Scronic speculates that because he sees prison officers working double shifts he believes that staff are calling in sick or taking vacation more often. Respondents have disputed that with evidence of officers’ work shifts. Moreover, Scronic’s claim that inmates are afraid to voice that they have COVID-19 symptoms for fear of going to 5851 is also disputed by Respondents. As Dr. Turner-Foster explained there are no communications between inmates in the Unit and the Camp.
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58 Camp inmates tested positive for COVID-19. (Id.) Test results have been available to inmates upon request but on May 20, 2020, FCI Fort Dix was able to attach a printer to the Abbott testing machine; thus, starting on May 21, 2020, test results from the Abbott machine will be printed and scanned into the inmates’ electronic medical records. (Turner-Foster Decl. II, ¶¶8-10, Dkt. No. 33-1.)
Petitioners note Respondents have represented that there are no further plans for mass testing. (Petrs’ Opp. Brief, Dkt. No. 30 at 19.) Petitioner Scronic asserts there are people in the Camp who have continued to experience symptoms, including at least one person who was told he tested was negative on May 1 but was nevertheless bedridden for days and certain he had COVID-19. (Scronic Decl. ¶5, Dkt. No. 30-6.) Petitioner Scronic also observed four inmates, who sleep in bunk beds in the same row, exhibiting dry throat, coughs, chills, weakness and who registered high temperatures during temperature check. (Id.) Petitioners claim, through Petitioner Scronic’s Declaration, that although there are daily temperature checks at the Camp, as of May 13, people who trigger a high reading are not evaluated by medical staff as a matter of course. (Id. ¶15.) Further, temperature readings and associated names are not being recorded or otherwise noted for patterns of recurring high temperatures or contact tracing. (Id.)
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Dr. Turner-Foster addresses the temperature taking concerns by first stating that, given the staffing resources initially available, it was not possible to develop a realistic plan that could be executed, and it was not possible to record every temperature reading and negative symptoms into each inmate’s medical record. (TurnerFoster Decl. II ¶12, Dkt. No. 33-1.) For all COVID-19 positive inmates housed in isolation unit 5851, a full set of vital signs and a complete symptom assessment is recorded daily. (Turner-Foster Decl. II ¶12, Dkt. No. 33-1.)
Dr. Turner-Foster also reported that as of May 21, 2020, the Camp lifted from a 14-day quarantine period. (Id. ¶21.) This quarantine period derived from the final COVID-positive tests on May 6, 2020. (Id.) In an effort to destroy any virus remaining on Camp surfaces, the institution hired a commercial COVID-19 disinfecting service thoroughly clean the entire Camp, using EPA approved disinfectant. (Id.) All inmates were provided new bedrolls. (Id.) Inmates were instructed to wash clothing on the warmest water possible prior to the scheduled cleaning. (Id.) Finally, inmates were instructed to keep all personal items locked in their locker. (Id.; Ex. 3.)
Petitioners assert there is no regular monitoring or testing of symptoms, beyond temperature checks, at either the Camp or the Low.
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(Scronic Decl. ¶13; Declaration of Tommie Telfair9 (“Telfair Decl.”) ¶¶ 4-5, Dkt. No. 30-4; 10Valas (“Valas Decl.”) ¶27, Dkt. No. 30-5; Goldenson Decl. ¶45.) On behalf of Respondents, Dr. Turner-Foster disagrees, stating that medical staff who perform temperature checks have addressed inmates who present with COVID-19 symptoms. (TurnerFoster Decl. II ¶11, Dkt. No. 33-1.) Any inmate with a fever or symptoms is immediately separated from other staff and inmates and made to wear a mask and then escorted to Health Services for further evaluation. (Id.)
Finally, Petitioners contend that correctional officers and nursing staff move between the Camp and East and West compounds at the Low, and 5851, due in part to officers working double shifts and assisting with counts. (Scronic Decl. ¶¶9–12; Valas Decl. ¶¶12–13.) At least one officer goes directly from the Camp to the Low in a double shift. (Scronic Decl. ¶¶10–11.) Nursing staff acknowledged to prisoners as recently as May 13 that they rotate between the Camp and the Low, including Unit 5851. (Id. ¶12.) Dr. Turner-Foster responded to these allegations. Only essential staff can enter the Camp and 5851, and they must wear full PPE. (Turner-Foster Decl. II ¶15, Dkt.
9 Tommie Telfair is an FCI Fort Dix inmate housed in the East compound in the Low. (Telfair Decl. ¶¶1-5, Dkt. No. 30-4.) 10 Raymond Valas is an FCI Fort Dix inmate housed in the West compound in the Low. (Valas Decl. ¶¶1, 8, 13, Dkt. No. 30-5.)
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No. 33-1.) The doctors and nurses remain in their assigned compounds, with the exception that four nurses and two doctors who are assigned to West compound have entered the isolation unit in 5851 to provide treatment for COVID-19 positive inmates; and, on one single occasion, a nurse practitioner assigned to the Camp entered the isolation unit to assist with daily assessments. (Id.)
2. Circumstances in Unit 5851 and Hospitalizations Inmates who test positive for COVID-19 are quarantined in the isolation unit in 5851. (Turner-Foster Decl. I ¶¶26-27, Dkt. No. 216.) As of May 18, 2020, twenty-two COVID-19 positive inmates remained in isolation in 5851, and 27 were on the third floor in recovery, pending return to the Camp. (Turner-Foster Decl. I ¶27, Dkt. No. 216.) Inmates are moved to the recovery floor after a 10-day period of isolation and symptom free. (Id.) Staff must wear full protective PPE including N-95 mask, face shield, a gown and gloves. (Id.) According to Petitioners, Unit 5851 is designed like the other housing units in the Low, with predominately 12-person rooms. (Declaration of Ezra McCombs11 (“McCombs Decl.”) ¶¶2–3, Dkt. No. 30-
11 Ezra McCombs is an FCI Fort Dix inmate, initially housed in the West compound, then housed in the Camp, and housed in Building 5851 after testing positive for COVID-19. (McCombs Decl. ¶¶1–3, Dkt. No. 30-3.)
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3; (Declaration of Rodolfo Quiambao12 (“Quiambao Decl.”) ¶11, Dkt. No. 30-2.) The first floor is a laundry facility; the second floor houses inmates with active symptoms; and the third floor houses those deemed recovered, before they are released back to the general population. (McCombs Decl. ¶¶4, 8; Scronic Decl. ¶7.)
Petitioners assert that medical care in Unit 5851 has been limited to two daily rounds by nurses or doctors, with no nurses or doctors remaining on site. (Quiambao Decl. ¶10.) (Quiambao Decl. ¶10.) Inmates were treated with regular Tylenol or Tylenol with codeine to make them sleep. (Quiambao Decl. ¶9, Dkt. No. 30-2.)
Petitioners maintain that at least four people have become so sick with COVID-19 at Fort Dix that they have required hospitalization. (McCombs Decl. ¶¶4–7, Dkt. No. 30-3; Quiambao Decl. ¶¶1, 15, Dkt. No. 30-2.) Among those, at least one required a ventilator and/or oxygen support before returning to 5851. (McCombs Decl. ¶4.) Inmate Quiambo, a 75-year-old man who was released to home confinement on April 13, 2020, was transported home but had to be taken to a hospital that day, and he ended up in the ICU. (Quiambao Decl. ¶15.) Over a month later, he is still at a rehabilitation and nursing center. (Id. ¶16.) He believes he would have died had he not
12 Rodolfo Quiambo is an FCI Fort Dix inmate who was housed in the Camp when he tested positive for COVID-19 on April 7, 2020. He had been working as a kitchen food server in the Camp. (Quiambao Decl. ¶¶3-8, Dkt. No. 30-2.)
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been transported to the hospital. (Id. ¶17.) Dr. Turner-Foster replied that of the four FCI Fort Dix inmates who were hospitalized, three were hospitalized for other illnesses and tested positive for COVID19 while at the hospital. Respondents have produced the medical records to demonstrate that only one was transferred to the hospital specifically for COVID-19 and the other three were transferred to the hospital emergency room for other non-COVID related reasons. (TurnerFoster Decl. II ¶26, Dkt. No. 33-1.) Three of the four inmates have returned to FCI Fort Dix and are currently in the recovery in 5851. The fourth inmate remains hospitalized and has a suspected cancer diagnosis.
3. Circumstances at the Low All inmates at the Low have temperature checks and a symptom assessment every other day (alternating by East and West compound). (Turner-Foster Decl. I ¶21, Dkt. No. 28-6.) Sick call slips are distributed in the housing units to minimize movement of inmates. (Id.) All inmates, including those with COVID-19 symptoms, are seeing in the Health Services Building; appointments are scheduled by housing unit and limited to approximately 20 inmates to allow social distancing. (Id.) Those inmates with COVID-19 symptoms are seen immediately. (Id.) Medications are distributed through the “pill line,” one unit at a time, at the same time inmates are obtaining their “grab and go” meal in their housing units. Id.
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BOP does not currently plan to test the entire Low, but FCI Fort Dix has testing capacity and supplies to address issues if they arise. (Id. ¶23.) BOP can conduct approximately 75 tests in a 24-hour period, and FCI Fort Dix currently has more than 400 kits on hand now with weekly deliveries on the way. (Id.) BOP does not currently have a plan to house inmates with preexisting medical conditions into a single space. (Id. ¶22.) Medical professionals at BOP currently believe that it is safer to spread those inmates out across the institution. On behalf of Petitioners, Dr. Goldenson disagrees with this assessment. (Goldenson Decl. ¶49, Dkt. No. 30-1.)
Petitioners note that by Respondents’ account only one person in the Low has been tested for COVID-19. (Turner-Foster Decl. I ¶23.) Petitioners, however, assert Respondents have not acknowledged the 25 tests performed in the Low in early May. (Pet. Opp. Brief, Dkt. No. 30 at 24.) As noted, according to Petitioner Scronic, no tests have been performed at the Camp since May 6. (Scronic Decl. ¶4, Dkt. No. 30-6.)13 Further, Respondents have not explained why they have no plans to test people housed at the Low, despite the capacity to test 75 people a day. (Petr’s Opp. Brief, Dkt. No. 30 at 21.) Petitioners submit that inmates at the Low who have not been tested have exhibited
13 According to Dr. Turner-Foster, as of May 21, 2020, the Camp lifted from a 14-day quarantine period which had been as a result of the final CIVID-positive tests on May 6, 2020. (Turner-Foster Decl. II ¶21, ECF No. 33-1.)
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symptoms typical of COVID-19, including one man on the east compound who was sick for two months and fainted twice; and four people housed in the same housing unit who have exhibited vomiting, coughs, chills, and other symptoms associated with COVID-19. (Telfair Decl. ¶¶2–4, Dkt. No. 30-4.)
In reply, Dr. Turner-Foster states that on April 22, 2020, they began testing asymptomatic Camp inmates who were pending release from BOP custody. (Turner-Foster Decl. II ¶18, Dkt. No. 33-1.) On May 15, 2020, FCI Fort Dix proposed a plan to begin testing asymptomatic inmates on the East and West Compounds. (Id.) This plan established goals and priority groups for testing. (Id.) That plan was submitted to the Regional Health Services Administrator, Regional Medical Director, and Regional Infectious Disease Nurse. To date, their approval is pending. (Id.)
FCI Fort Dix continues to use guidelines and advice from multiple sources, including but not limited to, the BOP’s Health Services Division - Central Office, the Centers for Disease Control, the State of New Jersey’s Health Department, and the Burlington County Health Department. (Turner-Foster Decl. II ¶19, Dkt. No. 33-1.)
Petitioners assert, in addition to staff movement between the Camp and the Low, food and beverage carts have been moved between the medical isolation unit at 5851 and the rest of the west compound. (Scronic Decl. ¶¶9–12, Dkt. No. 30-6; Valas Decl. ¶¶12–13, Dkt. No.
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30-5.) Staff go back and forth between 5851 and other units to transport laundry. (Valas Decl. ¶13, Dkt. No. 30-5.) Prisoners on the west compound go to the first floor of 5851 for clean linens. (Id. ¶13.) Many officers in the West Compound do not always wear masks, and many or all do not wear gloves. (Id. ¶¶14–16.)
As to staff movements, Dr. Turner-Foster states that only essential staff may enter 5851 and the Camp. (Turner-Foster Decl. II ¶15, Dkt. No. 33-1.) They must wear full protective PPE including an N-95 mask, a face shield, a gown, and gloves. (Id.) From the beginning of the COVID-19 pandemic, to the greatest extent possible, the nurses and doctors assigned to East have remained assigned to East and the nurses and doctors assigned to West have remained assigned to West. (Id. ¶16.) Only four nurses and two doctors, all assigned to West, have entered the isolation unit in 5851 to provide evaluation and treatment for COVID-19 positive inmates. (Id.) The only exception was on one single occasion, when a nurse practitioner assigned to the Camp entered the isolation unit to assist with daily assessments. (Id.) Further, only three correctional officers are assigned to work in the Camp, covering all three shifts, during which they don full PPE. (Turner-Foster Decl. II ¶17, Dkt. No. 33-1.) If one of those officers signs up for overtime, he/she is allowed to work only on West. (Id.) By donning full PPE in this manner, the likelihood of spread is negligible. (Id.)
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Further, as to moving equipment between facilities, Dr. TurnerFoster responds that staff use the food and beverage carts to feed the inmates in isolation unit 5851 because those inmates are not permitted to leave the unit. (Turner-Foster Decl. II ¶20, Dkt. No. 33-1.) Staff sanitize this equipment both before and after exiting the isolation unit, at all times wearing full PPE. (Id.) Additionally, inmates confined to isolation unit 5851 wash their own laundry with a designated washer and dryer on the first floor. (Id.) Laundry staff wash all other inmate (non-isolation unit 5851) laundry and transport the clothing to centralized laundry via laundry carts. (Id.) Inmates who work in the laundry do not enter 5851. (Id.)
4. Staff Members Petitioners note that on or around May 3, an officer tested positive for COVID-19 and is now understood by prisoners and staff to be very sick. (Valas Decl. ¶¶17, 21, Dkt. No. 30-5.) It is rumored that the officer worked five days per week scanning the IDs of all prisoners in the West who go for daily meal pickups in the compound’s sole dining hall. (Id. ¶18.) He wore a mask and did not touch the IDs, but in order to scan them was required to come within six inches of nearly every prisoner on the west compound several times per week. (Id. ¶21; see also Compl. ¶93 (describing meal pickups from the dining hall)). Between meal shifts, he was known usually not to wear a mask. (Valas Decl. ¶22, Dktkt. No. 30-5.)
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In addition to the contact he had with prisoners picking up morning and/or mid-day meals, the officer had contact with prisoners who worked in the kitchen. The officer worked the morning shift and was in almost daily contact with the 25 prisoners who worked that shift. (Id. ¶¶18–20.) Further, because he had a one-to-two-hour overlap with the afternoon shift, he also had regular contact with the 25 prisoners who worked the afternoon shift. (Id. ¶¶ 18–20, 23.) On May 5 or 6, the 25 prisoners who worked the morning shift were tested for COVID-19. (Id. ¶23.) The afternoon shift was not tested. Respondents have not acknowledged this positive staff test result.
Dr. Turner-Foster responded that since the beginning of the pandemic, five staff members tested positive for the virus. (TurnerFoster Decl. II ¶24, Dkt. No. 33-1.) All staff have fully recovered and returned to work. (Id.) The fifth staff member, referenced by Petitioners as having contact with inmates while scanning IDs, returned to work on May 16, 2020. (Id.) If any inmate exhibited symptoms of COVID-19 based on interaction with this staff member, they would have been identified during temperature checks/symptoms assessments and tested for the virus. (Id.)
E. BOP’s Individualized Determinations for Home Confinement 1. CARES Act
BOP is exercising its discretion and authority under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act to place
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inmates in “prerelease custody” under 18 U.S.C. 3624(c)(2), which includes “home confinement.” See BOP Program Statement No. 7320.01, Home Confinement.14 The CARES Act, as implemented by the Attorney General, expanded the authority for BOP to review “all at-risk inmates—not only those who were previously eligible for transfer.”15 BOP is still obligated to protect public safety; “[t]hat means [BOP] cannot simply release prison populations en masse onto the streets.” Id.
On March 26, 2020, the Attorney General issued guidance for “prioritizing” home confinement for “at-risk inmates who are nonviolent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than in BOP facilities.”16
In home confinement determinations under the CARES Act, BOP is to “consider the totality of circumstances for each individual inmate” based on the following non-exhaustive factors:
• The age and vulnerability of the inmate to COVID-19, in accordance with the Centers
14 Available at https://www.bop.gov/policy/progstat/7320_001_CN-1.pdf (last visited May 26, 2020).
15 Available at https://www.justice.gov/file/1266661/download (last visited May 26, 2020). 16 Available at (last visited May 26, 2020).
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for Disease Control and Prevention (CDC)

guidelines;

• 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; and

• 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.

See supra n. 13 at 1-2.

Any inmate granted home confinement under this guidance is

required to be “in a mandatory 14-day quarantine period” and is

“subject to location monitoring services and, where a court order is

entered, [is] subject to supervised release.” Id.

On April 3, 2020, the Attorney General updated his home

confinement guidance to BOP and identified specific BOP facilities 27

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“experiencing significant levels of infection,” FCI Oakdale, FCI Danbury, and FCI Elkton. Id.
BOP has generally prioritized home confinement for those inmates who have a short amount of time remaining on their sentences or who have served at least 50% of the sentence imposed. (Reiser Decl. ¶24, Dkt. No. 28-2.) FCI Fort Dix referred 56 inmates for transfers to home confinement under the CARES Act. (Id. ¶¶24-25.) Twenty-one of those inmates have already transferred to home confinement, and nineteen are scheduled to transfer to home confinement through the month of May. (Id. ¶25.)
2. First Step Act Home confinement under the CARES Act is not the same as another form of relief available to an inmate called “compassionate release” (which is also called “early release” or “Reduction in Sentence”) under the First Step Act, 18 U.S.C. § 3582(c)(1)(A). BOP does not have authority to provide inmates with a reduction in sentence through compassionate or “early release.” Id. However, BOP may make a motion to an inmate’s sentencing court to reduce a term of imprisonment. Id. BOP is guided by Program Statement 5050.50, which requires “extraordinary or compelling circumstances that could not reasonably
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have been foreseen by the court at the time of sentencing.”17 Under the First Step Act, effective December 18, 2018, an inmate may file a motion to reduce his sentence directly in the sentencing court, after exhaustion of administrative remedies, or 30 days from the date the warden receives the inmate’s request from the inmate, whichever is earlier. See 18 U.S.C. § 3582(c)(1)(A). The sentencing courts have released ten inmates from FCI Fort Dix since April 7, 2020. (Gov’t Brief, Dkt.. No. 28-1 at 32.)
F. BOP’s Administrative Exhaustion Procedures BOP’s administrative remedies have several tiers allowing “an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10. An inmate must first “present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy.” 28 C.F.R. § 542.13(a). Second, if the inmate is not satisfied, he may file a “formal written administrative Remedy Request, on the appropriate form (BP-9),” within “20 calendar days following the date on which the basis for the Request occurred.” § 542.14(a). Third, if the inmate “is not satisfied with the Warden’s response,” which must issue within 20
17 Available at https://www.bop.gov/PublicInfo/execute/policysearch?todo=query&seri es=5000# (last visited May 26, 2020.)
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days, the inmate may “submit an Appeal on the appropriate form (BP10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response.” §§ 542.15(a), 542.18. Finally, “[a]n inmate who is not satisfied with the Regional Director’s response may submit an Appeal on the appropriate form (BP11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response.” § 542.15(a). The General Counsel has 40 days to respond. 28 C.F.R. § 542.18. If an issue raised by the inmate concerns “an emergency” that “threatens the inmate’s immediate health or welfare, the Warden shall respond not later than the third calendar day after filing.” 28 C.F.R. § 542.18.
According to BOP’s administrative records, Petitioners Wragg, Scronic and Soto-Concepcion have never filed an administrative grievance while incarcerated at FCI Fort Dix. (Declaration of Christina Clark18 (“Clark Decl.”) ¶5, Dkt. No. 28-3 and Exs. 1-3.) Petitioner Bogdan has not filed a grievance since the COVID-19 pandemic began in 2020. (Id. and Ex. 4.)
G. Petitioners’ Compassionate-Release Requests Petitioner Wragg is a 38-year-old inmate serving a 22-year aggregate sentence for engaging in fraud offenses. (Gov’t Brief, Dkt.
18 Christina Clark is a Senior Attorney with the Federal Bureau of Prisons).
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No. 28-1 at 34.) Assuming he receives all good time credit available to him, his projected release date is August 7, 2037. (Reiser Decl. ¶27, Dkt. No. 28-2 and Ex. 8 at 001.) Wragg has served approximately 6.7% of his sentence. (Id. and Ex. 8 at 004.) Wragg filed a request for compassionate release with Warden Ortiz. (Reiser Decl. ¶9 and Ex. 1.) On April 17, 2020, the BOP denied Wragg’s request because he did not meet the necessary criteria for compassionate release under BOP policy. (Id.) On May 8, 2020, and then again on May 13, 2020, Wragg moved his sentencing court for a reduction of sentence under the First Step Act. (Id. and Ex. 2.) This motion is currently pending. United States v. Wragg, Case No. 15-cr-00398-JHS (E.D. Pa.), ECF No. 301 (Mot. To Modify).
Petitioner Scronic is a 49-year-old inmate who pleaded guilty to securities fraud and was sentenced to 96 months’ imprisonment. (Id. ¶29 and Ex. 12.) Assuming he receives all good conduct time available to him, his projected release date is September 18, 2025. (Id.) Scronic has served approximately 18% of his sentence. (Id.) According to the petition, Scronic has “a history of abnormal heart symptoms, severe childhood asthma, and skin cancer,” as well as “one or more disabilities recognized by the Rehabilitation Act.” (Compl. ¶8, Dkt. No. 1.) He is currently housed at the Camp at FCI Fort Dix and he has tested negative for COVID-19. (Turner- Foster Decl. I ¶30, Dkt. No. 28-6; Reiser Decl. ¶6, Dkt. No. 28-2.) If he were released
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to home confinement, he would “live with his sister and her two children in New York.” (Compl. ¶8, Dkt. No. 1.)
On April 7, 2020, pursuant to the First Step Act, Scronic filed a motion for compassionate release with the sentencing court. (Gov’t Brief, Dkt. No. 28-1 at 36.) On April 20, 2020, the Court denied the motion without prejudice because Scronic had not exhausted his administrative remedies, noting he did not appear to be a good candidate based in part by how little of his sentence he had served. (Id.) While that motion was pending, on April 16, 2020, Scronic submitted a request to the Warden of FCI Fort Dix for compassionate release. (Reiser Decl. ¶10 and Ex. 3, Dkt. No. 28-2.) Scronic can now return to his sentencing court and seek a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A). (Gov’t Brief, Dkt. No. 28-1 at 36.)
Petitioner Leonard Bogdan is a 68-year-old inmate who was sentenced in 2007 to an aggregate 360-month term of incarceration for fraud offenses. (Gov’t Brief, Dkt. No. 28-1 at 36-37.) In the petition, Bogdan claims he “has a heart condition, hypertension, high cholesterol, skin cancer, a potentially cancerous thyroid nodule that causes rapid heartbeat, and severe scoliosis that has displaced his kidneys and presses on his lungs causing chronic shortness of breath,” as well as “one or more disabilities recognized by the Rehabilitation Act.” Compl. ¶9.) He is housed in the West. (Id.) If released, he would “live with his wife in West Virginia.” (Id.)
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On April 20, 2020, Bogdan filed a motion for a reduction of sentence in the sentencing Court. (Gov’t Brief, Dkt. No. 28-1 at 2728.) The sentencing court denied the motion, finding that it lacked jurisdiction to order home confinement and noting that the Second Chance Act gave that authority exclusively to the BOP. (Id. at 38.)
BOP determined that Bogdan qualified for home confinement through the CARES Act. (Reiser Decl. ¶26and Ex. 6, Dkt. No. 28-2.) However, on May 13, 2020, the United States Probation Department notified FCI Fort Dix that Bogdan’s wife refused to allow him in their home. (Id. ¶26 and Ex. 7.) Bogdan was notified and given the opportunity to provide another release residence, but he was unable to provide another location. (Id.)
Petitioner Eliezer Soto-Concepcion is a 38-year-old inmate who pleaded guilty to a drug trafficking crime and was sentenced to a 144-month term of incarceration. (Gov’t Brief, Dkt. No. 28-1 at 28.) Assuming he receives all available good time credit, his projected release date is September 5, 2025. (Reiser Decl. ¶28 and Ex. 10 at 001, Dkt. No. 28-2.) He has served approximately 41% of his sentence. (Id. ¶28 and Ex. 10 at 003.) Soto-Concepcion alleges he requested the warden to make a motion for compassionate release in mid-April and is waiting for a response. (Compl. ¶19, Dkt. No. 1.)
In the petition, Soto-Concepcion says he “has high blood pressure, a history of heart attacks, and a nervous system condition
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that makes his hands shake,” as well as “one or more disabilities recognized by the Rehabilitation Act.” (Compl. ¶10, Dkt. No. 1.) If released to home confinement, he would “live with his grandmother in Puerto Rico.” (Id.) He is housed in the Camp. (Id.)
H. Other Inmates at FCI Fort Dix Of the roughly 3,000 inmates at FCI Fort Dix, at BOP’s last count, 24 inmates in addition to the four Petitioners here have filed § 2241 petitions demanding transfer to home confinement because of their fear of COVID-19. (Declaration of Mark E. Coyne19 (“Coyne Decl.”) ¶2, Dkt. No. 28-5.) Other FCI Fort Dix inmates have requested reductions in sentence, many relying on fear of COVID-19, and ten have been granted. (Id. ¶4; Reiser Decl. ¶8, Dkt No. 28-2.) Yet other inmates at FCI Fort Dix have invoked their fear of COVID-19 to demand release on bail pending the disposition of their appeals. (Coyne Decl. ¶¶7, 9, Dkt. No. 28-5.) III. JURISDICTION UNDER 28 U.S.C. § 2241 A. Rule 12(b)(1) Standard Federal courts, as courts of limited jurisdiction, possess only that power authorized by the Constitution and statute. Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012) (citing Kokkonen v. Guardian
19 Mark Coyne is Supervisory Assistant U.S. Attorney for the United States Attorney’s Office for the District of New Jersey, Chief of the Appeals Division. (Coyne Decl. ¶1, Dkt. No. 28-5.)
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Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Federal Rule of Civil Procedure 12(b)(1) provides a mechanism for challenging subject matter jurisdiction of a federal court.20 A court may also dismiss for lack of subject-matter jurisdiction at “any time[.]” Fed. R. Civ. P. 12(h)(3).
“A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000), holding modified by Simon v. United States, 341 F.3d 193 (3d Cir. 2003) (citing Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). If the motion to dismiss presents a factual attack on the complaint, a court may consider evidence outside the pleadings. Gould, 220 F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178–79 (3d Cir. 1997). It is the plaintiff’s burden to establish jurisdiction. Gould, 220 F.3d at 176 (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). “A claim may be dismissed under Rule 12(b)(1) only if it ‘clearly appears to be immaterial and made solely for the purpose of obtaining
20 The Federal Rules of Civil Procedure are “applicable to habeas petitions to the extent they are not inconsistent with the Habeas Rules.” Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002). (3d Cir. 2016). The Rules Governing Section 2254 Cases in the United States District Courts govern habeas corpus petitions under 28 U.S.C. § 2241, pursuant to Rule 1(b), scope of the rules; “[t]he district court may apply any or all of these rules to a habeas corpus petition not covered by Rule 1(a).”
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jurisdiction’ or is ‘wholly insubstantial and frivolous.’” Id. (internal quotations omitted).
Under Rule 12(b)(1), “[i]f the defendant contests any allegations in the pleadings, by presenting evidence, the court must permit the plaintiff to respond with evidence supporting jurisdiction.” Id. (citing International Ass'n of Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 712 (3d Cir. 1982)). “The court may then determine jurisdiction by weighing the evidence presented by the parties.” Id. “However, if there is a dispute of a material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination.” Id. “Improper consideration of a merits question under Rule 12(b)(1) significantly raises both the factual and legal burden on the plaintiff.” Davis v. Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016). Thus, courts must be cautious not to treat “what is, in essence, a Rule 12(b)(6) challenge to the complaint” as a Rule 12(b)(1) motion. Kehr Packages, 926 F.2d at 1409. If the challenge to the complaint is, in essence, failure to state a claim, the Court must accept the well-pled allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
B. Rule 12(b)(6) Standard A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
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P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556.) Legal conclusions, together with threadbare recitals of the elements of a cause of action, do not suffice to state a claim. Id.
Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id.
C. Challenge to this Court’s Jurisdiction Respondents move to dismiss the § 2241 Petition under Federal Rule of Civil Procedure 12(b)(1) because Petitioners’ claims amount to challenges to their conditions of confinement which are not cognizable in a petition for writs of habeas corpus. Respondents move to dismiss the Petitioners’ Rehabilitation Act claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. With
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the foregoing legal principle and standards in play, the Court turns to the merits of the motion.
D. Applicable Habeas Law “The ‘core’ habeas corpus action is a prisoner challenging the authority of the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is improper or invalid.” McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010) (citing Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002)). 28 U.S.C. § 2241(c)(3) provides:
(c) The writ of habeas corpus shall not extend to a prisoner unless—
(3) He is in custody in violation of the Constitution or laws or treaties of the United States[.] Within the Third Circuit Court of Appeals, a federal prisoner may challenge the fact, duration or execution of his or her sentence in a petition for habeas corpus under § 2241. Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). Typically, a challenge to the “fact” of a sentence is an inquiry into the legality of the detention, and relief for unlawful detention is discharge. Leamer,, 288 F.3d at 540–41 (3d Cir. 2002) (citing Powers of Congress and the Court Regarding the Availability and Scope of Review, 114 Harv. L. Rev. 1551, 1553 (2001)). In contrast, a claim alleging a constitutional violation under 42 U.S.C. § 1983 is a species of tort
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liability. Id. (citing Smith v. Holtz, 87 F.3d 108, 111 (3d Cir. 1996) (discussing Heck v. Humphrey, 512 U.S. 477 (1994))). A claim might properly be brought under either § 2241 or § 1983 if “the deprivation of rights is such that it necessarily impacts the fact or length of detention.” Leamer, 288 F.3d at 540. If the resolution of the claim necessarily implies the invalidity of the sentence, in other words, “the fact or duration of detention,” a habeas petition is the avenue for relief. Id. The “heart of habeas corpus” is immediate release or speedier release from confinement. Id. at 541. Examples of habeas claims that affect the duration of confinement include parole challenges, loss of good time credits and incorrect sentence calculations. See Eiland v. Warden Fort Dix FCI, 634 F. App’x 87, 89 (3d Cir. 2015) (sentence calculation); Denny v. Schultz, 708 F.3d 140 (3d Cir. 2013) (good time credits); Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001) (denial of parole). “[W]hen the challenge is to a condition of confinement such that a finding in plaintiff's favor would not alter his sentence oi undo his conviction, an action under § 1983 is appropriate.” Id. n.5. These claims have an exhaustion of administrative remedies requirement. In other words, before they can be brought in court, a prisoner must first exhaust his administrative remedies with the BOP. See Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”)
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In addition to challenges to the fact and duration of a sentence, habeas jurisdiction exists to challenge the “execution” of a sentence. “[T]he precise meaning of execution of the sentence’ is hazy.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005)In determining the meaning of “execution,” the Third Circuit looked “to the plain meaning of the term . . . which is to ‘put into effect’ or ‘carry out.’” Id. (quoting Webster's Third New International Dictionary 794 (1993)). In Woodall, a case heavily relied upon by the Petitioners, the inmate was challenging the execution of his sentence because decisions concerning placement in community correctional centers (“CCCs”) “are part of the phase of the corrections process focused on reintegrating an inmate into society.” Id. Looking at the relevant statute, 18 U.S.C. § 3624, which “specifically provides that a prisoner should be placed in a CCC or similar institution at the end of a prison sentence to ‘afford the prisoner a reasonable opportunity to adjust to and prepare for ... re-entry into the community[,]’” the Court concluded Woodall’s claim was not like “garden variety prison transfers” because “CCCs satisfy different goals from other types of confinement.” Id. Thus, the Court held § 2241 jurisdiction was appropriate to challenge21
21 The Court analyzed whether the BOP regulations were lawful pursuant to 18 U.S.C. § 3621(b), which describes at least five factors the BOP
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However, “the fact that a civil rights claim is filed by a prisoner rather than by an unincarcerated individual does not turn a § 1983 case or a Bivens action into a habeas petition.” McGee, 627 at 936.. In McGee, the inmate challenged what appears to be “a condition of confinement” - the BOP plan that enforced payment of “a financial obligation that is part of his sentence.” Id. at 936. The Third Circuit held that claim was cognizable under § 2241 persuasively “argue[d] that the payment terms imposed by the Bureau (in the IFRP) are illegal in that they conflict[ed] with the terms imposed by the sentencing court (in the judgment).” Id. at 937.
The Third Circuit, in a precedential decision, next addressed the meaning of “execution” of a sentence for purposes of § 2241 jurisdiction in Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012). Cardona contested his referral to the prison’s special management unit (“SMU”), a four-step program that limits an inmate's contact with other prisoners. Id. at 534. The inmate argued that his referral to the SMU was punitive, and thus “illegal” according to a BOP Program Statement. Id.
In Cardona, the Third Circuit disagreed, explaining: The petitions in Woodall and McGee both challenged BOP conduct that conflicted with express statements in the applicable sentencing judgment. That is, both petitions
must consider in making prisoner placement decisions. Woodall, 432 F.3d at 235.
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claimed that the BOP was not properly “‘put[ting] into effect’ or ‘carry[ing] out’” the directives of the sentencing judgment.
Id. at 536. The Third Circuit reasoned that, unlike Woodall and McGee,
Cardona’s “claims do not concern the execution of his sentence because
the BOP's conduct is not inconsistent with his sentencing judgment.”
Id. at 537.
More recently, albeit in dicta, the United States Supreme Court
addressed the possibility of bringing a “condition of confinement”
claim in a habeas petition. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).
In Abbasi, illegal aliens, detained in the wake of the September 11,
2001 terrorist attacks pending determination of whether they had
connections to terrorism, challenged “large-scale policy decisions
concerning the conditions of confinement imposed on hundreds of
prisoners.” Id. at 1862. In finding that “special factors counseled
hesitation” in allowing them to bring a Bivens action for damages,
the Court nonetheless noted an alternative action for injunctive
relief was available. Id. at 1865.
The Court further stated
we have left open the question whether [prisoners] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus. See Bell v. Wolfish, 441 U.S. 520, 526, n. 6 … (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”); Preiser v. Rodriguez, 411 U.S. 475, 499 … (“When a prisoner is put under
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additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making custody illegal”). Id. at 1862–63.
E. Respondents Contend the Court Lacks Jurisdiction Under 28 U.S.C. § 2241
Respondents contend the Court lacks jurisdiction over Petitioners’ Eighth Amendment claim under 28 U.S.C. § 2241 and accuse Petitioners of seeking to use § 2241 to circumvent, not just established law, the PLRA and BOP regulations, but the recently enacted CARES Act as well. The leitmotif of Respondents’ motion is that Petitioners’ Eighth Amendment claim is nothing more than a challenge to conditions of their confinement, a claim which is not cognizable in a petition for writ of habeas corpus.
Habeas relief is available in this Circuit where the alleged deprivation of rights affects the length or duration of imprisonment or where the BOP’s execution of a prisoner’s sentence somehow conflicts with a command or recommendation in the sentencing judgment. Although Petitioners assert they are challenging the “fact” of their confinement, Respondents cry semantics: but for conditions related to COVID-19, Petitioners’ claim would not exist. Further, Respondents remind that neither the Supreme Court nor the Third Circuit has ever recognized any exceptional circumstance that would allow Petitioners
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to challenge their conditions of confinement in a habeas petition. (Gov’t Brief, Dkt. No. 28-1 at 48, citing Muhammad v. Close, 540 U.S. 749, 751 n.1 (2004) (observing that the Court has never followed the speculative dicta in Preiser described above)).
Respondents concede, as they must, that some district courts have found habeas jurisdiction based on civil immigration detainees’ risk of contracting COVID-19 in detention facilities. Not only are those cases not controlling, Respondents point out, but they are not persuasive because civil immigration detainees do not have the same statutory or regulatory avenues for relief as prisoners who can seek home confinement through the CARES Act or make a compassionate-release request to the BOP and a motion to the sentencing court seeking compassionate relief under 18 U.S.C. § 3582(c)(1)(A). More importantly, Respondents distinguish the constitutional claims of civil immigration detainees from those of prisoners because they fall under the Fifth Amendment, which provides them “more considerate treatment than convicted prisoners.” (Respondents’ Brief in Support of a Motion To Dismiss and in Opposition to Petitioners’ Motion for a Preliminary Injunction, ECF No. 28-1 at 54 (citing Jeferson V.G. v. Decker, No. 20-3644, 2020 U.S. Dist. LEXIS 65905, at *15 n.5 (D.N.J. Apr. 15, 2020) (citing Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000))). Respondents suggest that different interests are
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at stake when considering whether to release a civil immigration detainee or a criminal defendant who is serving a sentence.
Finally, Respondents take issue with Petitioners’ reliance on the acceptance of habeas jurisdiction in Wilson v. Williams, No. 20cv-794, 2020 U.S. Dist. LEXIS 70674 (N.D. Ohio Apr. 22, 2020), where the district court accepted habeas jurisdiction over a seemingly similar claim. Respondents distinguish Wilson: there, COVID-19 infections were described as “rampant among inmates and staff, and numerous inmates have passed away from complications from the virus.” (Id. at 55 (quoting Wilson, 2020 U.S. App. LEXIS 14291, at *5 (6th Cir. May 4, 2020)). Availability of testing was also limited. (Id. (citing Wilson, 2020 U.S. Dist. LEXIS 70674, at *5)) Respondents asseverate that FCI Fort Dix stands in sharp contrast because all of the inmates currently at FCI Fort Dix Camp have tested negative for COVID-19. FCI Fort Dix also has far more test kits (approximate 432 test with 250 more a week going forward) than the 50 test kits available at the facility in the Wilson case.
Petitioners disagree with all of Respondents’ legal points, first contending that habeas jurisdiction exists here as a challenge to the execution of their sentences because Cardona did not narrow Woodall’s scope of habeas jurisdiction but instead offered two separate routes to bring a habeas challenge to execution of a sentence. (Petitioners’ Brief in Further Support of Motion for a
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Preliminary Injunction and in Opposition to Respondents’ Motion to Dismiss, ECF No. 30-1 at 17 (citing Mabry v. Warden Allenwood FCI Low, 747 F. App’x 918, 919 (3d Cir. 2019))). According to Petitioners, apart from challenging BOP conduct that is inconsistent with a sentencing court’s recommendation, the second way a petitioner can challenge the execution of his sentence is by seeking a change in custody that is more than a “garden variety prison transfer.” (Petitioners’ Brief, Dkt. No. 30 at 18 (citing Woodall, 432 F.3d at 243)). As in Woodall, Petitioners argue that district courts in the Third Circuit have jurisdiction under § 2241 to hear petitions that seek release from ordinary penal institutions like Fort Dix to different types of custody.
Petitioners press their point by citing to other Third Circuit decisions they say confirm this distinction. (Pet. Opp. Brief, Dkt. 30 at 19.) Petitioners explain that a transfer to home confinement would allow Petitioners to carry out their sentence in a manner that is “very different from carrying out [their] sentence[s]” at Fort Dix (citing Woodall, 432 F.3d at 241) which would result in a “quantum change in the level of custody,” as required for habeas jurisdiction. (Pet. Opp. Brief, Dkt. 30 at 19 (citing Ganim v. Prisons, 235 F. App’x 882, 884 (3d Cir. 2007)). Petitioners also rebut Respondents’ position regarding civil immigration detainees and assert that district courts in the Third Circuit have, in both the civil
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immigration detainee and prison context, “concluded that emergency petitions for release, based on COVID-19 are properly construed pursuant to 28 U.S.C. § 2241.” (Pet. Opp. Brief, Dkt. 30 at 22-23 (citing Serfass, 2020 WL 1874126, at *3 (construing prisoner’s motion “as a § 2241 habeas petition since [petitioner] seeks relief affecting how her sentence is executed, i.e., serving her sentence in home confinement as opposed to confinement in prison to which she was sentenced”); see also Ashby, 2020 WL 2494679, at *6 (same); see also Camacho Lopez, 2020 WL 1689874, at *4–5 (M.D. Pa. Apr. 7, 2020) (acknowledging that a petition for release during the pandemic falls within the subset of challenges to the execution of a sentence recognized by the Third Circuit)).
Petitioners also take issue with Respondents’ attempt to distinguish the Sixth Circuit Wilson case on its facts. Petitioners remonstrate that, like the prisoners in Wilson, they too have limited access to testing, live in close quarters, and have faced the rampant spread of the disease.
In reply, Respondents argue that release to home confinement under BOP supervision is not a reduction in the “level of custody” for purposes of habeas corpus jurisdiction. Instead, a prisoner who is not “seeking a judgment at odds with his conviction or with the State’s calculation of time to be served” is not raising a claim “on which habeas relief could [be] granted on any recognized theory.”
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(Gov’t’ Reply Brief in Support of Motion to Dismiss, Dkt. No. 33 at 3 (quoting Muhammad v. Close, 540 U.S. 749, 754–55 (2004) (per curiam))). Woodall was not inconsistent with Supreme Court precedent, Respondents contend, because “Woodall was challenging the inconsistency between the sentencing court’s recommendation and BOP’s refusal to abide by that recommendation.” (Gov’t Reply Brief, Dkt. 33 at 3 (quoting Cardona, 681 F.3d at 537)). Respondents also note that, unlike Woodall, Petitioners do not allege that BOP is disregarding a statutory command. Because Petitioners seek only to change where they serve their terms of imprisonment, their claims “also would not necessarily result in a change to the duration of” their sentences. (Id. (quoting Cardona, 681 F.3d at 537)) Respondents put a Post It note on Petitioners’ reliance on non-precedential opinions and decisions from other district courts, neither of which are binding. Nor does it matter, Respondents claim, that § 2241 might theoretically be available in an extraordinary case to challenge conditions of confinement. This is not such an extraordinary case, Respondents plead. Because Petitioners cannot show that the mitigated health risk at FCI Fort Dix is “so grave” that it would “violate[] contemporary standards of decency to expose anyone unwillingly to” it, Helling v. McKinney, 509 U.S. 25, 36 (1993), habeas jurisdiction does not lie. As Respondents highlight, COVID-19 poses risks confronting not only prisoners but law-abiding citizens nationwide,
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including front-line workers and vulnerable nursing home patients. As for prisons, the CDC has issued guidance for appropriately mitigating the risks in such facilities, explaining that inmates may continue to be detained in “housing units” in which bunks “ideally” are separated by at least six feet, but that such separation and other “social distancing strategies” for recreation, meals, and other activities “need to be tailored to the individual space in the facility.” CDC Interim Guidance 11 (emphasis added).22 Petitioners demur, claiming that such expert guidance is contrary to the view that risks at FCI Fort Dix are so grave that contemporary societal standards wholly forbid them and, thus, they should be granted habeas relief. (See Pet. Motion for Prelim. Inj., Dkt. No. 9-1 at (”Indeed, the design of Fort Dix, in which Petitioners are confined either in large dormitories or in 200- to 300-person buildings, would make it unsafe for Petitioners even if Reespondents were following guidance from public health experts and the Centers for Disease Control and Prevention ”)
F. Jurisdiction Analysis Petitioners are a class consisting of all current and future FCI Fort Dix inmates ‘over the age of 50 or who experience medical
22 Available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctionaldetention.html. (last visited May 26, 2020).
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conditions that make them vulnerable to COVID-19.’” (Compl. ¶135.) Petitioners assert jurisdiction under § 2241 “for release from custody that violates the Eighth Amendment to the U.S. Constitution.” (Compl. ¶13.) “[T]he gravamen of Petitioners’ Eighth Amendment claim is that there is no set of protective measures that Respondents can feasibly implement to contain the spread of COVID-19 in Fort Dix.” (Memorandum of Law in Further Support of Petitioners’ Motion for a Preliminary Injunction and in Opposition to Respondents’ Motion to Dismiss, Dkt. No. 30 at 38.)
A core habeas challenge is one where “a prisoner challeng[es] the authority of the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is improper or invalid.” McGee,, 627 F.3d at 935. (citing Leamer, 288 F.3d at 542.tioners do no present a core challenge; they do not contest the validity of their convictions or sentences. Nor do Petitioners challenge the duration of their confinement, as has been recognized in habeas, such as cases presenting the loss of good time credits, denial of parole or BOP’s miscalculation of a prisoner’s sentence. True, Petitioners seek early release from prison, but they do not do so on the basis that their convictions or sentences are invalid. Instead, they seek such injunctive relief based on unconstitutional conditions of confinement, a type of challenge that neither the
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Supreme Court nor the Third Circuit has yet recognized as a cognizable habeas claim.
Petitioners confidently assert that their claims are within the ambit of a challenge to the “execution” of their sentences because they allege they are confined under conditions that violate the Eighth Amendment by subjecting them to a serious risk of contracting COVID19. In the Third Circuit, prisoners can challenge the execution of their sentences under § 2241. Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 244 (3d Cir. 2005). ,Petitioners rely upon nonprecedential opinions, Ganim and Mabry, to fit into the Third Circuit’s definition of a habeas challenge to the execution of their sentences. To go that route, however, leads to other nonprecedential opinions that are more on point with Petitioners’ Eighth Amendment claims. In those opinions, however, the Third Circuit concluded conditions of confinement claims are not cognizable under § 2241.
First, Petitioners’ Eighth Amendment claim resembles that in Share v. Krueger, 553 F. App’x 207 (3d Cir. 2014). Share was an 84year-old prisoner who had served more than two-thirds of his sentence and alleged he was suffering serious illnesses that would qualify as “terminal.” Id. at 208. He sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) from the Warden at FCI Schuylkill, but his request was denied. Id. Thus, Share filed a petition under § 2241, challenging the execution of his sentencing by alleging the (BOP)
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“failed to provide and/or sufficiently and adequately provide treatment for his serious, chronic and likely terminal medical maladies, particularly in light of his advanced age of over 84 years, all in violation of his 8th Amendment constitutional rights.” Id. The Third Circuit rejected expanding jurisdiction under § 2241 to a challenge to the execution of a sentence where Share did not establish an inconsistency between BOP conduct and the sentencing court’s judgment. Id. at 209.
Second, in Gillette v. Territory of Virgin Islands, 563 F. App'x 191, 192 (3d Cir. 2014), the petitioner alleged he was detained in a territorial correctional facility in violation of his Eighth Amendment rights due to the dangerous and unsanitary conditions in the facility, causing his inability to secure constitutionally adequate medical and mental health treatment. The petitioner asserted his claim fell within the core of habeas because it asked for his release. Id. at 195. The Third Circuit stated, “[a]llowing this type of clever pleading would essentially permit a prisoner to bring any claim within the scope of habeas relief by merely asking for release from custody, thus eviscerating the applicability of civil rights statutes like § 1983.” Id. The Third Circuit held that the claim did not meet the stringent Cardona test, requiring an action inconsistent with “a command or recommendation in the sentencing judgment”. Id. at 194-95 (quoting Cardona, 681 F.3d at 537). The Third Circuit also
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found the claim contrary to its holding in Leamer, “which requires a showing that ‘a favorable decision ... would necessarily imply that [the petitioner] would serve a shorter sentence.’” Gillette, 563 F. App’x at 195 (quoting Leamer, 288 F.3d at 543).
Certainly, Petitioners’ Eighth Amendment claims sound more in the nature of the type of habeas claim the Supreme Court in Preiser hypothesized, but has yet to recognize: “[w]hen a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.” The Supreme Court resurrected this idea more recently in Abbasi. Yet, although the petitioners in Abbasi alleged they were held in tiny, empty, constantly lighted cells for over 23 hours per day without basic hygiene, and subjected to physical abuse, including broken bones, and verbal abuse, including sexual and religious insults, the Supreme Court did not find it was such a case for habeas relief “to remove the restraints making the custody illegal.” Abbasi, 137 S. Ct. at 1853. The Court’s decision is telling of just how extraordinary the case must be for habeas jurisdiction to lie before a prisoner may be released from lawful custody based on a condition of confinement.
Even accepting Petitioners’ allegations as true, BOP has taken measures to reduce the spread of COVID-19, but Petitioners want much more. The relief Petitioners seek, ordering temporary enlargement of
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custody (or bail pending habeas corpus) with appropriate precautionary public health and safety measures for all Class Members — including the Petitioners, the Class, and the Subclass — and issuing writs of habeas corpus “if temporary enlargement does not bring the conditions at Fort Dix into compliance with the Eighth Amendment and the Rehabilitation Act” would require the Court to “serve as a de facto ‘super warden.’” See Livas v. Myers, No. 20-422, 2020 U.S. Dist. LEXIS 71323, *19-22 (W.D. La. Apr. 22, 2020) (declining to exercise jurisdiction over habeas petition challenging conditions related to COVID-19). This Court does not find this case to be that “extraordinary case” where it should expand habeas jurisdiction, more extraordinary than even Abbasi, where the Supreme Court did not see fit to extend habeas jurisdiction over a conditions of confinement claim involving outright alleged physical abuse of prisoners who were not serving a sentence upon conviction of a crime. Abassi, 137 S. Ct. at 1863.23 t In the final analysis, given the foregoing jurisprudence, this Court finds that this is not the Eighth Amendment “exceptional case” to warrant habeas jurisdiction. To be fair, Petitioners’ fear
23 The Court digresses to make an observation: it is worth noting that Petitioners seek this extraordinary relief without attempting to work alongside the BOP to bring about changes that are important to them. It seems they would have an interest in doing so. This, in turn, awakes the suspicion that Respondents have: Petitioners are attempting to evade the PLRA exhaustion requirement by not bringing an Eighth Amendment claim in a Bivens action.
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of contracting COVID-19 is not unwarranted. Such a fear permeates American society, and a in a prison environment such fears are most likely heightened. But nothing in the Complaint rises to the level of circumstances that warrant habeas relief. Finally, even if the risk of Petitioners contracting COVID-19 is as serious as they contend, a risk that is not unique to individuals in custody24 and a risk this Court does not take lightly, there are other avenues for an inmate to obtain release from FCI Fort Dix, such that “bail pending habeas” under the Eighth Amendment is not warranted. Petitioner can request home confinement primarily under the CARES Act and compassionate release under 18 U.S.C. § 3582(c)(1)(A). (Insofar as BOP decisions under the CARES Act or compassionate release affect the execution of Petitioners’ sentences, Petitioners do not allege BOP violated any statute or regulation.) Thus, there is no basis for this Court to grant “bail pending habeas.” The circumstances must be so exceptional, such as immediate, concrete and non-speculative, to make the grant of bail necessary to make the habeas remedy effective. Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). Because Petitioners have other avenues available for immediate relief, those exceptional circumstances are not present here.
24 Day in and day out, front line health workers and first responders, no name a few, are at serious risk of contracting this awful disease.
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For the foregoing reasons, this Court holds that habeas

jurisdiction does not lie for Petitioners’ Eighth Amendment claims.

IV.

THE MOTION FOR PRELIMINARY INJUNCTION

As set forth above, Petitioners’ claims are not cognizable under

28 U.S.C. § 2241. Inmates seeking injunctive relief challenging the

conditions of confinement, whether for monetary or injunctive relief,

fall outside of federal habeas corpus relief. Nelson v. Campbell, 541

U.S. 636, 643 (2004). Nor is this an exceptional case under the Eighth

Amendment justifying habeas jurisdiction. Even assuming this Court

has habeas jurisdiction, however, the Court finds, in the alternative,

that Petitioners have not met their burden to obtain preliminary

injunctive relief.

In order to obtain preliminary injunctive relief, a party must

show (1) a reasonable likelihood of success on the merits, (2)

irreparable injury if the injunction does not issue, (3) the balance

of equities tips in its favor, and (4) an injunction is in the public

interest. Fulton v. City of Philadelphia, 922 F.3d 140, 152 (3d Cir.

2019). Petitioners contend they meet this criteria and ask this Court

to order immediate “temporary enlargement of custody.” (Dkt. No. 9-

1, at 32.)25 The Court turns to each of the factors.

25 It is not clear to this Court what such an order would like as the place to which the inmate would be released – the so-called temporary enlargement of custody - would vary by inmate. During a
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A. Success on the Merits As the Supreme Court has held, the “cruel and unusual punishments” clause of the Eighth Amendment guarantees prisoners “humane conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1970). See also Helling, 509 U.S at 36. Deliberate indifference to the serious medical needs of prisoners is unconstitutional. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the context of exposing inmates to risk of disease, conditions that are so “contrary to current standards of decency for anyone to be exposed” violate the Eighth Amendment. Helling, 509 U.S. at 35. An Eighth Amendment claim as it pertains to conditions of confinement has two components: one objective, the other subjective. Farmer, 511 U.S. at 825; see also Natale v. Camden County Correctional Facility, 318 F.3d 575, 582 (3rd Cir. 2003). To satisfy the “objective component,” a prisoner must show an “objectively intolerable risk of harm.” Id. To satisfy the subjective requirements, a plaintiff must show that the defendant (1) was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,” (2) subjectively “dr[ew] the inference” that the risk existed, and (3) “disregarded the risk.”
conference call, counsel for Petitioners suggested the Court might appoint a Special Master to make such individual determinations. It is hard to see how that is “immediate” to address Petitioners’ pressing concerns. Because the Court will deny the relief requested, it need not delve into such issue.
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Farmer, 511 U.S. at 837; Ricks v. Shover, 891 F.3d 468 (3d Cir. 2019).

See also Pearson v. Prison Health Services, 850 F.3d 526, 534 (3d

Cir. 2017)

(describing objective and subjective components of

Eighth Amendment claim for inadequate medical care).

Petitioners argue that even though “Respondents may subjectively believe that their containment measures are the best they can do, these measures remain ‘contrary to standards of decency for anyone to be so exposed’ because they fail to meaningfully mitigate the risk of COVID-19 transmission and attendant serious illness and death the Petitioners face.” (Dkt. No. 30, at 69.) Petitioners complaints’ are described in detail above. In general, they introduce the declarations of inmates who say they are showing symptoms of COVID-19. They contend that in some cases the inmates’ needs, both medical and hygienic, are not being met. Petitioners complain that Respondents have not tested every prisoner. Instead, the prison only tests those inmates who exhibit symptoms and are then determined eligible for testing by medical staff. Petitioners even take aim at the “significant false negative rate” of the Abbott Laboratories testing. Lastly, and perhaps most telling of Petitioners’ position, Petitioners contend that the prison’s current containment measures do not include social distancing or self-quarantining, which Petitioners insist are “the only two effective means of preventing COVID-19 transmission.” (Id. at 71) (emphasis added). In sum, Petitioners stand firm that “[h]aving
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failed to contest their knowledge of serious health dangers that
COVID-19 presents, Respondents’ implementation of flawed containment
measures constitutes deliberate indifference.” (Id.)
The Court is aware of the need to make findings of fact, Rogers
v. Corbett, 468 F.3d 188, 192 (3d Cir. 2006). as noted throughout
this Opinion, the parties do not disagree about most of the measures
the Respondents are taking to address the COVID-19 crisis. Rather,
Petitioners persist in their claim that no amount of measures absent
release are adequate. Thus, although Petitioners introduce some
evidence of their disputes regarding, for example, testing, staff
movement, and supplies (all set forth above), these disputes - even
resolving them all in favor of Petitioners26- do not establish the
deliberate indifference prong. The Court’s reasoning follows.
First, with regard to the objective component of the Eighth
Amendment claim, it does not seem that the parties have a quarrel.
26 The Court notes one important exception. Petitioners have introduced declarations from various inmates. Two inmates, in particular (Scronic and Telfair) state that "to [their] knowledge” none of the inmates have been evaluated by a nurse or doctor, and Scronic believes that inmates have COVID-19 and are not being tested. Respondents have attempted to respond to these conclusory and abstract opinions, contending that no medical attention is being denied. To the extent that Petitioners wish to press this position to show that more than a few isolated incidents of failure to address medical needs exists, they may seek to supplement the record and the Court will reconsider its Opinion and engage in fact-finding provided Petitioners can show that a favorable finding in this regard would alter the Court’s conclusion.
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Nor could they. Nor could this Court. COVID-19 is an indiscriminate and cruel disease that poses a risk to anyone and everyone, including prison inmates. The Court thus turns its focus to the subjective component of the Eighth Amendment inquiry.
As an initial matter, Petitioners’ clear concession that “Respondents may subjectively believe their containment measures are the best they can do,” supra, should alone settle the score: Petitioners admit they cannot show at this juncture a likelihood of success on their Eighth Amendment claim. That is, Petitioners acknowledge they have no evidence of Respondents’ liable state of mind. Cf. Swain v. Junior, 2020 WL 2161317, at *4 (11th Cir. May 12, 2020) (“defendants are also likely to succeed on appeal because the plaintiffs offered little evidence to suggest that the defendants were deliberately indifferent. Indeed, the evidence supports that the defendants are taking the risk of COVID-19 seriously”); Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. April 22, 2020) (“the district court cited . . . no evidence that [the defendants] subjectively believe the measures they are taking are inadequate. To the contrary, the evidence shows that [the prison] has taken and continues to take measures—informed by guidance from the CDC and medical professionals— to abate and control the spread of the virus.”). Even absent such concession, Petitioners seem to hang the presence of COVID-19 at Fort Dix on the Respondents’ deliberate indifference hook. The Supreme
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Court, however, has made it clear that a resultant harm does not itself establish a liable state of mind. Cf. Farmer, 511 U.S. at 844 (“prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted”)
Moreover, neither the allegations as pled nor the evidence presented to the Court again, most of which is not disputed , demonstrates that the Respondents have been deliberately indifferent to the inmates’ risks of contracting COVID-19. As set forth above, since January 2020, the BOP has been coordinating with multiple organizations, including the World Health Organization and the CDC. The BOP implemented a multi-phased operational plan called the “Action Plan.” As described earlier, the Action Plan seeks to “mitigate the spread of COVID-19” among inmates and staff, continue effective operations of the federal prison system, and ensure that staff remain healthy and available for duty. BOP is currently in “Phase 7” of its Action Plan, which is an extension of the nationwide action plan in Phase 6. This Phase is in effect until June 30, 2020. All inmates in every BOP institution must be secured in their assigned cells/quarters for a period of at least 14 days, in order to stop any spread of COVID-19. Only limited group gatherings are afforded, with attention to social distancing to the extent possible, to facilitate commissary, laundry, showers, telephone, computer access, and law library usage.
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The usage of face masks and PPE is in effect. Every newly admitted

inmate is screened for COVID-19 exposure risk factors and symptoms,

and remains in quarantine for 14 days. So too are asymptomatic inmates

with risk of exposure. Symptomatic inmates are placed in isolation

until they test negative for COVID-19 or are cleared by medical staff

as meeting CDC criteria for release from isolation. Any inmate who

tests positive is put into isolation in Unit 5851 until he recovers.

In addition, all staff are subjected to enhanced health screening in

areas of “sustained community transmission,” as determined by the

CDC, and at medical referral centers. Staff registering a temperature

of 100.4 degrees Fahrenheit or higher are barred from the facility

on that basis alone. A staff member with a stuffy or runny nose can

be placed on leave by a medical officer.

In addition, contractor

access to BOP facilities is restricted to only those performing

essential services (e.g., medical or mental health care, religious,

etc.) or those who perform necessary maintenance on essential systems.

Social and legal visits (except if attorney has been screened) were

stopped as of March 13, 2020, and remain suspended until at least

June 30, 2020, to limit the number of people entering the facility

and interacting with inmates.

To date, no inmate at FCI Fort Dix Low has tested positive for
COVID-19, although Respondents concede that they have not and are not
testing all inmates in the Low. However, if an inmate were to manifest 62

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or complain about symptoms associated with COVID-19, Respondents advise that he immediately would be escorted to the Health Services building and examined by a clinician. And if COVID-19 is suspected, he would be tested immediately using the Abbot machine. If the inmate tested positive, he would be immediately isolated in Unit 5851.
As noted, and it bears repeating, that much of what Respondents say about the protective measures they are taking at Fort Dix is not disputed by Petitioners. Rather, Petitioners take issue with the effectiveness of such measures. Dr. Goldenson, on behalf of Petitioners, opines that inmates are at a “significantly increased risk” of contracting COVID-19 than if the individual was in home confinement. (Goldenson Decl. ¶37, Dkt. No. 30-1.). He recommends that a “public health expert” be appointed to oversee operations until it is “possible to maintain consistent social distancing.” (Id. ¶41.) Dr. Goldenson is critical of Respondents’ Medical Director, Dr. Turner-Foster, using her silence about certain measures to “reinforce[] his conclusion that the prison is failing to take necessary steps to protect inmates.” (Id. ¶51.) Yet, Dr. TurnerFoster has responded to the lacunae identified by Dr. Goldenson in her Supplemental Declaration. She has also responded to the individual inmate’s declarations submitted by Petitioners. For example, she explained that all inmates who came into contact with the Food Service staff member who tested positive were assessed and, if appropriate,
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were tested. As for the Abbott test criticism, she acknowledged that the tests can provide a false negative, but a positive is a positive. Moreover, as common sense seems to dictate, the margin error rates were likely considered by the FDA when it approved such testing. While Dr. Goldenson may have his differences of opinion with Dr. Turner-Foster, nowhere does he opine that the Respondents are being deliberately indifferent. This omission is significant. The same is true with respect to the other evidence presented by Petitioners; it does not rise to deliberate indifference.

What the Petitioners’ Eighth Amendment claim boils down to is

the prison‘s failure to provide social distancing. That is the heart

of the case. Indeed, Petitioners beat the distancing drum throughout

their papers. The only remedy is release of inmates to achieve that

objective. They fault Respondents for not providing them with physical

distancing. Yet, as the Supreme Court has cautioned, the inability

of a defendant to take an action that a plaintiff seeks will likely

not constitute a reckless state of mind. Farmer, 511 U.S. at 835

(noting difference between medical negligence, which cannot establish

an Eighth Amendment violation, and deliberate indifference to a

prisoner’s serious medical need). In the end, the ugly picture

Petitioners paint of FCI Fort Dix is not really

fair one.

Petitioners’ bold statement that the mitigated health risk at FCI

Fort Dix is so grave that it violates “standards of decency for anyone 64

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to be so exposed” ignores almost the entire record presented before this Court. As does Petitioners’ statement that “Respondent Ortiz has recklessly failed to follow or implement CDC guidance or directives from Attorney Barr or the BOP.” (Dkt. No. 9-1, at 40.) This is not to say that Petitioners do not have genuine fears or concerns. These are worrisome times for sure. The record simply does not support that the Respondents have been deliberately indifferent to the inmates’ concerns. That physical distancing is not possible in a prison setting, as Petitioners urge, does not an Eighth Amendment claim make and, as such, Petitioners are not likely to succeed on the merits 27
B. Irreparable Injury
In the face of statutory relief available to individual inmates, it is hard to see how Petitioners will suffer irreparable injury if an injunction does not issue. First, as set forth above, an inmate may seek prerelease custody under the CARES Act which includes home confinement. After reviewing its inmates for eligibility under the CARES Act, FCI Fort Dix referred 56 inmates for transfers to home
27 Indeed, the CDC has issued guidelines for mitigating the risks in correctional facilities, recognizing that six feet distancing may not always be feasible. CDC Interim Guidance 11. Petitioners have offered no evidence that interim guidance is being ignored by Respondents.
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confinement. (Reiser Decl. ¶¶24-25.)28 Twenty-four of those inmates

have already transferred to home confinement, and 15 are scheduled

to transfer to home confinement through the end of May. (Id. ¶25.)

Moreover, BOP is undertaking similar efforts in all of its facilities

to determine which inmates meet the criteria established by the

Attorney General, resulting in the transfers of 2,799 inmates to home

confinement. See https://www/bop.gov/ coronavirus/ (last visited May

18, 2020). Additionally, 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. ¶¶16, 24.) According

to

Respondents, the BOP either has transferred or expects to transfer to

home confinement by May’s end 39 inmates using its CARES Act

authority.

Moreover, pursuant to 18 U.S.C. § 3582(c)(1)(A), the First Step Act, an inmate may seek a reduction in sentence through compassionate or early release. An inmate may make a motion to his sentencing court to reduce a term of imprisonment in the event the BOP does not grant his request within 30 days or denies it. BOP uses that statutory authority in “extraordinary or compelling circumstances that could not reasonably have been foreseen by the court at the time of

28 Petitioners’ claim at ¶99 of their complaint that Fort Dix has not released any prisoners to home confinement is not supported by the record.
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sentencing.” See BOP Program Statement 5050.50, Compassionate Release/Reduction In Sentence Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g). The sentencing courts have released ten inmates from FCI Fort Dix since April 7, 2020, under these statutory procedures. Thus, an at-risk inmate who is truly vulnerable to contracting COVID-19 has an avenue of release.
Thus, in the absence of the preliminary injunction that Petitioners seek, all of the foregoing statutory provisions still afford a vulnerable inmate an opportunity to present his individual case for a careful and individualized assessment by either the BOP or a court. A vulnerable inmate who is truly at risk not only deserves but receives a prompt and fair review.
C. Equities and Public Interest
Petitioners aver that their release is the only way to protect them from the “COVID-19 deathtrap” that Fort Dix has become. (Memorandum of Law in Support of Petitioners’ Motion for a Preliminary Injunction,. No. 9-1, at 42 citing Goldenson Decl. ¶36.) Moreover, they prophesy that their removal, as well as the removal of potentially hundreds of other similarly situated inmates, would further the public interest by giving more social distance to Fort Dix staff and to the community which, in turn, would render local hospitals less overwhelmed by potential Fort Dix cases. (Id. at 45.)
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Conspicuously absent in Petitioners’ analysis is any meaningful discussion of the risks associated with a large scale release of inmates. What would be the plan that addresses the safety and security of the communities to where they are released? Is the proper supervision even available given that the current COVID-19 crisis is just as real to the law enforcement officers in charge of safety and supervision? In the end, the Court finds that the balance of equities and the public interest favor the Respondents who have been charged with maintaining the administration of FCI Fort Dix to include the safety of its inmates. “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turney v. Safley, 482 U.S. 78, 84-85 (1987). “Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint” by this Court. Id.

Because the Petitioners cannot establish the criteria for a

preliminary injunction, the Court will deny the motion.

V.

THE REHABILITATION ACT CLAIM

Petitioners seek to represent “a subclass consisting of all

current and future people in post-conviction custody at Fort Dix who

have qualifying disabilities within the meaning of the Rehabilitation 68

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Act” of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794. (Compl. ¶136.) Petitioners allege they, like other members of the Subclass, have qualifying disabilities that entitle them to accommodations that they are not receiving in violation of the RA. (Id. ¶142.)
A. Applicable Law “The Rehabilitation Act assures ‘meaningful access’ to federally funded programs, Alexander v. Choate, 469 U.S. 287, 301 … (1985)” and “[w]hen necessary to realize that access and enjoyment, the [RA] require[s] ‘reasonable accommodations,’ Choate, 469 U.S. at 301, 105 S. Ct. 712, or ‘reasonable modifications,’ 42 U.S.C. § 12182(b)(2)(A)(ii), to be made by actors within the statute[’s] reach.” Berardelli v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 110 (3d Cir. 2018), reh'g denied (Sept. 12, 2018). The elements of a Rehabilitation Act claim are that “(1) [the plaintiff] has a disability; (2) that he is otherwise qualified for the benefit that has been denied; (3) that he has been denied the benefit solely by reason of his disability; and (4) that the benefit is part of a program or activity receiving Federal financial assistance.” Baxter v. Pennsylvania Dep’t of Corr., 661 F. App’x 754, 757 (3d Cir. 2016); see also Dahl v. Johnston, 598 F. App’x 818, 819–20 (3d Cir. 2015)
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(citing 42 U.S.C. § 12132 in an inmate case involving an ADA claim).29
Whether an accommodation is reasonable is determined on a case-by-
case basis. Berardelli, 900 F.3d at 123. A public agency may “resist
modifications that entail a ‘fundamenta[l] alter[ation]’ of [it’s]
services and programs.” Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581, 603 (1999) (quoting 28 C.F.R. § 35.130(b)(7)).
B. The Parties’ Arguments
Respondents seek dismissal of Petitioners’ Rehabilitation Act
claims under Rule 12(b)(6) for failure to state a claim. Respondents
further argue that even if Petitioners had stated a claim, they failed
to exhaust their administrative remedies.30
Petitioners propose the following accommodations, on a class-
wide basis:
separate living spaces rather than highcapacity shared rooms and dorms with people in close proximity; free distribution of
29 Claims under the Rehabilitation Act and the Americans With Disabilities Act (“ADA”) are generally subject to the same standards. See Yeskey v. Pa. Dep’t of Correc., 118 F.3d 168, 170 (3d Cir. 1997) (“all the leading cases take up the statutes together”), aff’d Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998). 30 Respondents correctly note that federal courts frequently require civil rights actions and actions for declaratory relief be brought separately from petitions for habeas corpus. See Johnson, 2012 WL 5880344, at *8 and n.5 (habeas petitioner brought multiple civil rights complaints, including a putative claim under the Rehabilitation Act). Because the Court concludes that Petitioners fail to state an RA claim upon which relief may be granted, the issue is moot.
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adequate cleaning supplies, including soap; free

distribution of adequate personal protective

equipment, including masks and gloves; staggered

access to bathrooms, meals, and other

shared

resources;

assignments

of

correctional staff that mitigates the

possibility staff will transmit COVID-19, even

asymptomatically, from one building to another;

and adequate access to tests and information

about risk.

Respondents assert that these accommodations could potentially

compromise BOP’s ability to manage COVID-19 with its limited resources

or alter the safety and security of FCI Fort Dix or the community.

The Rehabilitation Act does not permit individuals to effect broad-

based, fundamental changes to policies and practices.

As to the third element of a Rehabilitation Act claim,

Respondents suggest Petitioners’ allegation that BOP had

discriminatory animus against them based on their disabilities is

wholly conclusory. Even the conclusory allegations are implausible,

Respondents argue. Facially, BOP’s actions are motivated to combat

the spread of COVID-19, while at the same time fulfilling its duty

to protect inmates and the public. Plaintiffs have not plead any

facts to support their conclusion that the Government is intentionally

discriminating against them based on their disabilities. (Gov’t

Brief, Dkt. No. 28-1, at 60 citing, e.g., Brown v. Pennsylvania Dep’t

of Corr., 290 F. App’x 463, 467 (3d Cir. 2008); Jenkins v. Glover,

Civ. No. 09-2145-FSH, 2009 WL 2391278, at *5-6 (D.N.J. July 31, 2009)

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(“Plaintiff has not alleged facts indicating that he was excluded from the work program based on his disability”)).
Even if Petitioners could state a Rehabilitation Act claim, Respondents note they failed to exhaust their administrative remedies. Petitioners do not allege that they satisfied the administrative exhaustion requirement by filing a claim with the appropriate BOP and Department of Justice officials, and the BOP has no records of any such claim. (Id. at 61, citing Clark Decl. ¶5 and Exs. 1-3.)
Petitioners, who do not seek preliminary injunctive relief on their Rehabilitation Act claims, assert that they have adequately pleaded their Rehabilitation Act claims for the purposes of a motion to dismiss. Contrary to Respondents’ arguments, Petitioners assert they need not show intentional animus because they are not seeking compensatory damages. (Memorandum of Law in Further Support of Petitioners’ Motion for a Preliminary Injunction and in Opposition to Respondents’ Motion to Dismiss, Dkt. No. 30 at 74 citing, e.g., S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 265 (3d Cir. 2013)) (“two courts of appeals have suggested that [Rehabilitation Act] plaintiffs seeking compensatory damages must demonstrate a higher showing of intentional discrimination than deliberate indifference”); see also Furgess v. Pa. Dep’t of Corr., 933 F.3d 285, 289 (3d Cir. 2019) (setting out “intentional
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discrimination” from the base elements of the Rehabilitation Act claim, “because he seeks compensatory damages”). Instead, Petitioners contend that they have sufficiently alleged deliberate indifference, the failure to take affirmative steps to protect the Rehabilitation Act Subclass. Petitioners’ theory is that virtually everything in a prison is a service for purposes of the Rehabilitation Act. (Id. at 75, citing, e.g., Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (“Modern prisons provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners.…”)).
Thus, Petitioners conclude that the following allegations are sufficient to state a Rehabilitation Act claim: (1) the Subclass is comprised of people whose particular conditions qualify them under the Act; (2) that safe conditions at Fort Dix and adequate preventative measures to combat COVID-19, “are programs or services that Fort Dix must provide—but is not presently providing;” and (3) that Respondents have denied them reasonable accommodations in deliberate indifference to their medical conditions. Petitioners further contend that the complaint is replete with facts demonstrating Respondents’ knowledge of Petitioners’ rights and failure to act to protect Petitioners and the Subclass members from exposure to COVID-
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19. Petitioners note that the Court may not determine disputed facts in deciding a motion to dismiss.
In reply, Respondents argue that pleading “deliberate indifference” by BOP is not enough to meet that statutory requirement for an Rehabilitation Act claim because Petitioners’ allegations of deliberate indifference to inmates with disabilities are indistinguishable from their allegations of Eighth Amendment deliberate indifference to the entire population of FCI Fort Dix. This cannot qualify as discrimination “solely by reason of their disability,” as is required under the Act. In other words, the subclass is subject to the same conditions as every other inmate at FCI Fort Dix. Petitioners never specify what aspects of life or services at FCI Fort Dix are unequal for them or what requested accommodations BOP denied them.
Finally, Respondents lament the idea that the Rehabilitation Act entitles Petitioners to be released from incarceration unless BOP provides physical facilities that virtually eliminate all risks from COVID-19. This, they claim, would essentially transform the statute from a remedial civil rights law into a comprehensive legal duty to protect disabled inmates in a manner that exceeds the statutory and constitutional duties owed to other inmates. They insist that the Rehabilitation Act does not require such exceptional protections.
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Petitioners declare that they, and the subclass they seek to represent, have underlying medical conditions that make them more vulnerable than young, healthy inmates to serious illness or death from COVID-19. A disability under the Rehabilitation Act is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual[.]” 42 U.S.C. § 12102(1)(a). The broadly-defined disability alleged by Petitioners qualifies only under the general sense of the definition, that their underlying medical conditions limit their life activities because they must be more cautious to guard against contracting COVID-19 than others. It is a novel claim for sure, and although the Court hesitates to find this element is satisfied because it lacks precision, it will assume this element is satisfiedwithout deciding the issue. The second element requires that Petitioners be qualified for the benefit they seek. Insofar as they seek additional measures to protect them from contracting COVID-19 at FCI Fort Dix, the Court will likewise assume this element is satisfied. Petitioners, however, fail to establish the third element of an Rehabilitation Act claim, that they were denied the benefit of additional measures to protect them from contracting COVID-19 solely by reason of their disabilities. Even under the lesser “deliberate indifference” standard, they have not pled facts suggesting Respondents failed to take measures that protect them from exposure to COVID-19 because they are disabled.
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Petitioners urge this Court to find that they can meet the deliberate indifference standard because Respondents failed to “level the playing field;” in other words, to put them in the same position as healthy inmates. Within the separate units where FCI Fort Dix inmates are housed, Petitioners are exposed to the same risk of contracting COVID-19 as healthy inmates. What is different is how serious the complications may be for Petitioners. Thus, to level the playing field, Petitioners seek conditions that are not available at FCI Fort Dix, virtually complete protection against contracting COVID-19. The alternative to providing those conditions is release to home confinement.
Petitioners’ bold request to release any and all inmates who may have any disability is simply not a reasonable accommodation within the meaning of the Rehabilitation Act. It is an all or nothing approach that deprives the prison from conducting an independent analysis of each inmate’s individual circumstances and an accommodation that may address the inmate’s needs. That is what the Act requires. Therefore, because Petitioners have failed to allege that Respondents have acted in disregard of Petitioners’ rights because they are disabled and the relief Petitioners seek goes well beyond what the Rehabilitation Act expects, the motion to dismiss for failure to state a claim will be granted.
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VI.

CLASS ALLEGATIONS

Lastly, the Court turns to Petitioners’ class allegations. Respondents contend that Petitioners are not entitled to class relief because they cannot satisfy the various provisions under Federal Rule of Civil Procedure 23. The Court agrees.

A. Legal Standard

In Reinig v. RBS Citizens, N.A., 912 F.3d 115 (3d Cir. 2018), the Third Circuit reiterated that “‘[t]he class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Reinig, 912 F.3d at 124 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (internal citations omitted)). To invoke this exception, petitioners moving for class certification bear the burden of affirmatively demonstrating by a preponderance of the evidence that the proposed class is ascertainable and meets the requirements of Federal Rule of Civil Procedure 23. Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015), as amended (Apr. 28, 2015).

Courts determine whether class certification is appropriate by conducting a two-step analysis. First, the court must evaluate whether the putative class satisfies the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy. Marcus v. BMW of North America, LLC, 687 F.3d 583, 590 (3d Cir. 2012) (citing Fed. R.
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Civ. P. 23(a)-(b)). If the court is satisfied that the requirements of Rule 23(a) have been met, it must then proceed to the second step and determine whether “the class fits within one of the three categories of class actions in Rule 23(b).” Reinig, 912 F.3d at 12425 (internal citations omitted). Class certification is proper only if the district court is satisfied, after a “rigorous analysis,” that petitioners have established each element of Rule 23 by a preponderance of the evidence. Reinig, 912 F.3d at 25 (citing Marcus, 687 F.3d at 591).

B. Analysis

Here, Petitioners seek certification of a class consisting of all current and future inmates “over the age of 50 or who experience medical conditions that make them vulnerable to COVID-19.” (Compl. ¶135) (emphasis added). In this matter, they bear the burden of proving that this proposed class meets the four requirements of Rule 23(a) and fits within one of Rule 23(b)’s three subcategories. The Third Circuit has emphasized that Rule 23 “calls for a rigorous analysis in which factual determinations supporting Rule 23 findings must be made by a preponderance of the evidence.” Mielo v. Steak ‘N Shake Operations, Inc., 897 F.3d 467, 483-84 (3d Cir. 2018).

1.

Rule 23(a) Requirements

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Under Rule 23(a), Petitioners must establish that four requirements – commonly referenced as numerosity, commonality, typicality, and adequacy – are satisfied.
a. Numerosity
Rule 23(a)’s first prerequisite, numerosity, is satisfied where “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Determinations of whether numerosity is met must be “based upon common sense.” Walling v. Brady, 1995 WL 447658, at *2 (D. Del. July 19, 1995). “No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds [forty], the first prong of Rule 23(a) has been met.” Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). The Court finds that numerosity is satisfied in this instance, as the proposed class conceivably could consist of a majority of those currently incarcerated.
b. Commonality
The second prerequisite of Rule 23(a) is that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “[T]hat bar is not a high one;” it requires identification of only one common question of fact or law. Rodriguez v. Nat’l City Bank, 726 F.3d 372, 382 (3d Cir. 2013). However, the claims of the class members “‘must
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depend upon a common contention . . . [which] must be of such a nature that it is capable of class-wide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” Mielo, 897 F.3d at 489 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011) (emphasis added).
The Third Circuit previously held that a district court’s “reasoning was problematic” in failing to certify a class of inmates who suffered a range of physical injuries (and some none at all) during an outbreak of a “serious, communicable disease” at a prison facility, holding that (on the limited basis of the district court opinion) the alleged threat of injury to inmates met the commonality requirement. Hagan v. Rogers, 460 F.3d 146, 158 (3d Cir. 2009).
Similarly, in this case Petitioners and the proposed class share several common issues of fact, including: (1) their incarceration at Fort Dix during the COVID-19 pandemic; (2) that incarceration subjecting them to the same allegedly harmful inadequate protective measures by Defendants; and (3) their inclusion in one or more age or other medical categories considered “high risk” for a severe progression of the disease.
However, in Hagan the inmates were seeking redress for violation of constitutional rights, something that a court could resolve “in
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one stroke.” It seems extremely unlikely to this Court that the issues in common here are capable of class-wide resolution “in one stroke,” short of ordering the BOP to throw open the gates of Fort Dix. Rather, the Court would be required to engage in an intensive, multi-step, individualized inquiry as to whether each prisoner met criteria for conditional release. See also 23(b) analyses re: predominance and superiority infra. The Court thus does not find that the commonality requirement has been satisfied.
c. Typicality
The third prerequisite of Rule 23(a) is that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Factual differences will not defeat typicality if the named plaintiffs’ claims arise from the same event or course of conduct that gives rise to the claims of class members and are based on the same legal theory.” Frank v. Gov’t of Virgin Islands, 2010 WL 1286077, at *3 (D.V.I. Mar. 31, 2010) (citing Danvers Motor Co. v. Ford Motor Co., 543 F.3d 141, 150 (3d Cir. 2008)).
Here, Petitioners claim that Respondents have subjected Petitioners and all proposed class members to the same potentially injurious treatment. Therefore, the Court finds that Petitioners’ claims arise from the same conduct, and are based on the same legal theory, as the
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claims of the putative class, and the typicality requirement of Rule 23(a)(3) is satisfied.

d. Adequacy

The fourth and final prerequisite of Rule 23(a) is that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Adequacy requires the district court to find that (1) the class representatives’ interests do not “conflict with those of the class” and (2) proposed class counsel are “capable of representing the class.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 185 (3d Cir. 2001) (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)).

Here, Petitioners have the same interests as the other proposed class members, as all are confined at Fort Dix and subject to the same potentially injurious treatment. Thus, Petitioners suffered the same injury and have the same claims as all proposed class members, raising no potential conflict of interest. Additionally, the Court has no cause to doubt the capability of Petitioners’ counsel. Therefore, the Court finds that the adequacy requirement of Rule 23(a)(4) is satisfied.

2.

Rule 23(b) Requirements

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Having concluded that Petitioners have established some, though not necessarily all, of the prerequisites of Rule 23(a), the Court must also evaluate whether they have satisfied one of the Rule 23(b) subsections. Under Rule 23(b)(3), a party seeking class certification must “prove by a preponderance of the evidence that the class is ascertainable.” Byrd, 784 F.3d at 163. Additionally, a party seeking certification must show that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). These criteria are referred to as Rule 23(b)(3)’s ascertainability, predominance, and superiority requirements. See, e.g., Byrd, 784 F.3d at 162.
a.Typicality The third prerequisite of Rule 23(a) is that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Factual differences will not defeat typicality if the named plaintiffs’ claims arise from the same event or course of conduct that gives rise to the claims of class members and are based on the same legal theory.” Frank v. Gov’t of Virgin Islands, 2010 WL 1286077, at *3 (D.V.I. Mar. 31, 2010)
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(citing Danvers Motor Co. v. Ford Motor Co., 543 F.3d 141, 150 (3d Cir. 2008)).
Here, Petitioners claim that Respondents have subjected Petitioners and all proposed class members to the same potentially injurious treatment. Therefore, the Court finds that Petitioners’ claims arise from the same conduct, and are based on the same legal theory, as the claims of the putative class, and the typicality requirement of Rule 23(a)(3) is satisfied.
b.Adequacy
The fourth and final prerequisite of Rule 23(a) is that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Adequacy requires the district court to find that (1) the class representatives’ interests do not “conflict with those of the class” and (2) proposed class counsel are “capable of representing the class.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 185 (3d Cir. 2001) (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)).
Here, Petitioners have the same interests as the other proposed class members, as all are confined at Fort Dix and subject to the same potentially injurious treatment. Thus, Petitioners suffered the same injury and have the same claims as all proposed class members,
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raising no potential conflict of interest. Additionally, the Court has no cause to doubt the capability of Petitioners’ counsel. Therefore, the Court finds that the adequacy requirement of Rule 23(a)(4) is satisfied.
1.Rule 23(b) Requirements
Having concluded that Petitioners have established some, though not necessarily all, of the prerequisites of Rule 23(a), the Court must also evaluate whether they have satisfied one of the Rule 23(b) subsections. Under Rule 23(b)(3), a party seeking class certification must “prove by a preponderance of the evidence that the class is ascertainable.” Byrd, 784 F.3d at 163. Additionally, a party seeking certification must show that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). These criteria are referred to as Rule 23(b)(3)’s ascertainability, predominance, and superiority requirements. See, e.g., Byrd, 784 F.3d at 162.
a. Ascertainability
In addition to Rule 23’s explicit requirements, Petitioners must demonstrate that the proposed class is clearly defined and objectively ascertainable. See Marcus, 687 F.3d at 591. A class is ascertainable
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if it is (1) “defined with reference to objective criteria; and (2) there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.” Byrd, 784 F.3d at 163. However, “a plaintiff [need not] be able to identify all class members at class certification – instead, a plaintiff need only show that class members can be identified.” Id.
Here, the proposed class is ascertainable because it is defined in objective terms (prisoners over age 50 or suffering from medical conditions making them “high-risk”) and class members can be identified by review of prison medical records. The Court finds that the proposed class is ascertainable.
b. Predominance
The predominance element of Rule 23(b)(3) is closely related to the commonality element of Rule 23(a). Rule 23(b)(3) requires a district court to find that the “questions of law or fact common to class members predominate over any questions affecting only individual members.” See Fed. R. Civ. P. 23(b)(3). But “[w]hereas ‘Rule 23(a)(2)’s commonality element requires that the proposed class members share at least one question of fact or law in common with each other,’ the Rule 23(b)(3) predominance element ‘requires that common issues predominate over issues affecting only individual class
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members.’” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 266 (3d Cir. 2009) (quoting In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 527-27 (3d Cir. 2004)). When examining predominance, the court must undertake a “rigorous analysis” to determine whether classwide issues outweigh individual issues. See Williams v. Jani-King of Phila. Inc., 837 F.3d 314, 319 (3d Cir. 2016) (quoting Dukes, 564 U.S. at 351).
As explained by the Third Circuit, “the focus of the predominance inquiry is on whether the defendant’s conduct was common as to all of the class members, and whether all of the class members were harmed by the defendant’s conduct.” Sullivan v. DB Investments, Inc., 667 F.3d 273, 298 (3d Cir. 2011). Here, although the implementation of allegedly harmful prison procedures by Respondents was common to all class members, Respondents’ treatment of individual class members (and even of named Petitioners) has not been. Instead, some prisoners have been evaluated on an individual basis, and in some cases have been recommended for home confinement. As such, the Court finds that the predominance requirement has not been met.
c. Superiority
Rule 23(b)(3) also requires that “a class action [be] superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In making its superiority
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determination, the Court considers four nonexclusive factors: “(1) the interest of individual members of the class in individually controlling the prosecution of the action; (2) the extent of litigation commenced elsewhere by class members; (3) the desirability of concentrating claims in a given forum; and (4) the management difficulties likely to be encountered in pursuing the class action.” In re Prudential Ins. Co. of Am. Sales Practice Litig., 962 F. Supp. 450, 522 (D.N.J. 1997). “[T]he superiority requirement ‘asks the court to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication.’” Beneli v. BCA Fin. Sen’s., Inc., 324 F.R.D. 89, 99 (D.N.J. 2018) (quoting In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 316 (3d Cir. 1998)).
In this case, were Petitioners seeking a change in Fort Dix policies regarding sanitization of facilities or the like, concentrating the claims of a large prison population in this court would be an efficient means of adjudication. However, as Petitioners are seeking the remedy of home confinement or early release, concentration of these claims seems a grossly inefficient method of processing and evaluating individual prisoners for suitability of release. Moreover, class members arguably have an interest in being able to submit individual petitions for compassionate release immediately, highlighting their particular conditions and suitability, rather than
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being required to wait for class-wide resolution. Such petitions could be processed and evaluated by the various district courts in the District of New Jersey as they are received. Accordingly, to the extent that any of Petitioners’ claims survive over which this Court has jurisdiction, they could not be brought on a class-wide basis.
Therefore, the Court finds that the superiority requirement has not been met. VII. CONCLUSION
For the foregoing reasons, Respondents’ David E. Ortiz and Michael Carvajal Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim is GRANTED. Petitioners’ Troy Wragg, Michael Scronic, Leonard Bogdan, and Eliezer Soto-Concepcion Emergency Motion for Preliminary Injunction is DENIED.
Dated: May 27, 2020
______________________________ RENEE MARIE BUMB United States District Judge
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CRAIG CARPENITO United States Attorney J. ANDREW RUYMANN MARK E. COYNE ELIZABETH A. PASCAL JOHN F. BASIAK JR. JOHN T. STINSON Assistant U.S. Attorneys 402 East State Street, Room 430 Trenton, NJ 08608 Attorneys for Respondents

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, et al., Petitioners,
v. DAVID E. ORTIZ, et al.,
Respondents.

Hon. Renée Marie Bumb, U.S.D.J. Civil Action No. 20-cv-5496
NOTICE OF MOTION TO DISMISS Return Date Set by Order of the Court, ECF No. 17

To: ACLU OF NEW JERSEY Tess M. Borden, Esq. Jeanne Locicero, Esq. 89 Market Street P.O. Box 32159 Newark, NJ 07102 Attorneys for Petitioners
PLEASE TAKE NOTICE that on Friday, May 22, 2020, pursuant to the
schedule ordered by the Court, David E. Ortiz, in his capacity as Warden of FCI
Fort Dix, and Michael Carvajal, in his capacity as Director of the Bureau of Prisons
(together, the “Respondents” or the “Government”) shall move before the Honorable
Renée Marie Bumb, United States District Judge, sitting in Camden, New Jersey,
for entry of an Order dismissing in its entirety “Complaint – Class Action for

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Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus” of Petitioners in this action.
PLEASE TAKE FURTHER NOTICE that in support of this motion, Respondents will rely upon the following: Brief in Support of a Motion to Dismiss and in Opposition to Petitioners’ Motion for a Preliminary Injunction; Declaration of Christina Clark (with exhibits); Declaration of Mark E. Coyne (with exhibits); Declaration of James Reiser (with exhibits); Declaration of Adam Sassaman (with exhibits); and Declaration of Dr. Nicoletta Turner-Foster. A proposed Order is also submitted, as well as a letter regarding the length of Respondents’ brief.
As stated above, the briefing schedule for this motion is pursuant to the Court’s May 12, 2020 Order.

Dated: May 18, 2020

By: /s/ J. Andrew Ruymann J. ANDREW RUYMANN Chief, Civil Division MARK E. COYNE Chief, Appeals Division ELIZABETH A. PASCAL Deputy Chief, Civil Division JOHN F. BASIAK JR. JOHN T. STINSON Assistant U.S. Attorneys Attorneys for Respondents

2

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CRAIG CARPENITO United States Attorney J. ANDREW RUYMANN MARK E. COYNE ELIZABETH A. PASCAL JOHN F. BASIAK JR. JOHN T. STINSON Assistant U.S. Attorneys 402 East State Street, Room 430 Trenton, NJ 08608 Attorneys for Respondents
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, et al., Petitioners,
v. DAVID E. ORTIZ, et al.,
Respondents.

Hon. Renée Marie Bumb, U.S.D.J. Civil Action No. 20-cv-5496

RESPONDENTS’ BRIEF IN SUPPORT OF A MOTION TO DISMISS AND IN OPPOSITION TO PETITIONERS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 1:20-cv-05496-RMB Document 28-1 Filed 05/18/20 Page 2 of 71 PageID: 913
TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................................iii Preliminary Statement .................................................................................................. 1 Statement of Facts......................................................................................................... 4
A. BACKGROUND: SECURITY AT FCI FORT DIX AND INMATE PLACEMENT ................. 4 B. BOP’S “ACTION PLAN” TO COMBAT THE SPREAD OF COVID-19............................ 6 C. FCI FORT DIX’S IMPLEMENTATION OF THE ACTION PLAN ..................................... 8 D. CURRENT CONDITIONS IN DIFFERENT AREAS OF FCI FORT DIX AND HEALTH AND
SCREENING PROTOCOLS FOR INMATES IN THOSE AREAS..................................... 12 1. COVID-19 CIRCUMSTANCES AT THE LOW ....................................................... 12 2. COVID-19 CIRCUMSTANCES AT THE CAMP ..................................................... 13 E. BOP’S “CAREFUL, INDIVIDUALIZED DETERMINATIONS” FOR HOME CONFINEMENT
14 F. PETITIONERS’ REQUEST FOR CLASS-WIDE “RELEASE” OF INMATES .................... 21 G. PETITIONERS’ COMPASSIONATE-RELEASE REQUESTS ......................................... 23 H. BOP’S ADMINISTRATIVE EXHAUSTION PROCEDURES .......................................... 28 I. OTHER INMATES AT FCI FORT DIX. .................................................................... 30 Standard of Review...................................................................................................... 33 A. RULE 12(B)(1) STANDARD ................................................................................... 33 B. RULE 12(B)(6) STANDARD ................................................................................... 34 C. REVIEW OF MOTIONS FOR PRELIMINARY INJUNCTION ........................................ 34 Legal Argument ........................................................................................................... 35 I. The Court Lacks Jurisdiction over the Petition.................................................... 35 II. Petitioners’ Rehabilitation Act Claims Should be Dismissed............................... 46 III.Alternatively, Petitioners’ Motion for a Preliminary Injunction Should be Denied ................................................................................................................................. 51 A. PETITIONERS CANNOT DEMONSTRATE A REASONABLE PROBABILITY OF SUCCESS
ON THE MERITS OR IRREPARABLE HARM ............................................................. 51 B. MOREOVER, EXTRAORDINARY INJUNCTIVE RELIEF IS UNWARRANTED WHERE
PETITIONERS FAILED TO EXHAUST ADMINISTRATIVELY ...................................... 53
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Conclusion .................................................................................................................... 60
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TABLE OF AUTHORITIES

Federal Cases

Page(s)

Am. Soccer League, LLC v. United States Soccer Fed’n, Inc., 883 F.3d 32 (2d Cir. 2018)........................................................................................ 57

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................ 34, 49

Baxter v. Pennsylvania Dep’t of Corr., 661 F. App’x 754 (3d Cir. 2016) ......................................................................... 46, 47

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................. 34

Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999)...................................................................................... 42

Berardi v. Swanson Mem’l Lodge No. 48, 920 F.2d 198 (3d Cir. 1990)...................................................................................... 33

Bonadonna v. United States, 446 F. App’x 407 (3d Cir. 2011) ............................................................................... 36

Bowers v. City of Philadelphia, No. 06-3229, 2006 WL 2601604 (E.D. Pa. Sept. 8, 2006).................................. 55, 56

Bronson v. Demming, 56 F. App’x 551 (3d Cir. 2002) ................................................................................. 38

Brown v. Pennsylvania Dep’t of Corr., 290 F. App’x 463 (3d Cir. 2008) ............................................................................... 49

Brown v. Plata, 563 U.S. 493 (2011) .................................................................................................. 56

Bryant v. United States Bureau of Prisons, Civ. No. 11-0254, 2011 WL 13261983 (C.D. Cal. July 11, 2011) ............................ 50

Callwood v. Enos, 230 F.3d 627 (3d Cir. 2000)...................................................................................... 55

Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012)............................................................................ 2, 38, 39

iii

Case 1:20-cv-05496-RMB Document 28-1 Filed 05/18/20 Page 5 of 71 PageID: 916
Cohen v. Kurtzman, 45 F. Supp. 2d 423 (D.N.J. 1999)............................................................................. 33
Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979) .................................................................................... 39
Dahl v. Johnston, 598 F. App’x 818 (3d Cir. 2015) ............................................................................... 46
Dillon v. United States, 560 U.S. 817 (2010) .................................................................................................. 36
Docherty v. Cape May Cty., Civ. No. 15-8785 (RMB), 2017 WL 2819963 (D.N.J. June 29, 2017) ..................... 47
Doughty v. United States Postal Serv., 359 F. Supp. 2d 361 (D.N.J. 2005)........................................................................... 33
Elliott v. Wilson, Civ. No. 15-01908, 2017 WL 1185213 (D. Minn. Jan. 17, 2017) ............................ 50
Farmer v. Brennan, 511 U.S. 825 (1994) .................................................................................................. 51
Felix v. N.Y.C. Transit Auth., 324 F.3d 102 (2d Cir. 2003)...................................................................................... 48
Filar v. Bd. of Educ. of City of Chicago, 526 F.3d 1054 (7th Cir. 2008) .................................................................................. 48
Foster v. Albino, Civ. No. 09-1486-JBS, 2009 WL 1874073 (D.N.J. June 24, 2009) ......................... 50
Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000)...................................................................................... 43
Furando v. Ortiz, No. 20-cv-3739 (RMB), 2020 WL 1922357 (D.N.J. Apr. 21, 2020) ......................... 32
Furgess v. Pennsylvania Dep’t of Corr., 933 F.3d 285 (3d Cir. 2019)...................................................................................... 47
Ganim v. Federal Bureau of Prisons, 235 F. App’x 882, 2007 WL 1539942 (3d Cir. 2007)................................................ 38
Gilmore v. People, 220 F.3d 987 (9th Cir. 2000) .................................................................................... 56
iv

Case 1:20-cv-05496-RMB Document 28-1 Filed 05/18/20 Page 6 of 71 PageID: 917
Helling v. McKinney, 509 U.S. 25 (1993) .................................................................................................... 51
Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) .................................................................................. 57
Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir. 1988) .................................................................................. 56
Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997)..................................................................................... 42
Jeferson V.G. v. Decker, No. 20-3644, 2020 U.S. Dist. LEXIS 65905, at *15 n.5 (D.N.J. Apr. 15, 2020) ........................... 43
Jenkins v. Glover, Civ. No. 09-2145-FSH, 2009 WL 2391278 (D.N.J. July 31, 2009).......................... 49
Johnson v. Hoy, 227 U.S. 227 U.S. 245 (1913) ................................................................................... 40
Johnson v. Warden Canaan USP, 699 F. App’x 125 (3d Cir. 2017) ............................................................................... 37
Johnson v. Zickefoose, Civ. No. 12-2544 RMB, 2012 WL 5880344 (D.N.J. Nov. 20, 2012) .................. 38, 50
K.N. v. Gloucester City Bd. of Educ., 379 F. Supp. 3d 334 (D.N.J. 2019)........................................................................... 47
Kortyna v. Lafayette Coll., 47 F. Supp. 3d 225 (E.D. Pa. 2014).......................................................................... 48
Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993).......................................................................................... 34
KVOS, Inc. v. Associated Press, 299 U.S. 269 (1936) .................................................................................................. 33
Landano v. Rafferty, 970 F.2d 1230 (3d Cir. 1992).................................................................................... 45
Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72 (3d Cir. 2011)........................................................................................ 58
Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002)...................................................................................... 36
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Case 1:20-cv-05496-RMB Document 28-1 Filed 05/18/20 Page 7 of 71 PageID: 918
Leslie v. Attorney Gen. of United States, 363 F. App’x 955 (3d Cir. 2010) ............................................................................... 37
Livas v. Myers, 2020 U.S. Dist. LEXIS 71323 (W.D. La. Apr. 22, 2020) ................................... 43, 44
Lucas v. Hadden, 790 F.2d 365 (3d Cir. 1986)...................................................................................... 45
Medina v. Choate, 875 F.3d 1025 (10th Cir. 2017) ................................................................................ 39
Money v. Pritzker, -- F. Supp. 3d --, No. 20-cv-2093, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020) ....................................................... 56, 58
Moore v. DeYoung, 515 F.2d 437 (3d Cir. 1975)...................................................................................... 40
Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884 (3d Cir. 1977)...................................................................................... 34
Muhammad v. Close, 540 U.S. 749 (2004) .................................................................................................. 37
Murphy v. Brooks, 132 F.3d 43 (10th Cir. 1997) .................................................................................... 39
N.J. Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d 374 (3d Cir. 2012)................................................................................ 34, 51
Nelson v. Campbell, 541 U.S. 637 (2004) .................................................................................................. 39
Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974) .................................................................................. 57
Novartis Consumer Health, Inc. v. & Johnson–Merck Consumer Pharm. Co., 290 F.3d 578 (3d Cir. 2002)...................................................................................... 35
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) .................................................................................................. 48
Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998) .................................................................................................. 46
Preiser v. Rodriguez, 411 U.S. 475 (1973) ...................................................................................... 37, 38, 39
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Case 1:20-cv-05496-RMB Document 28-1 Filed 05/18/20 Page 8 of 71 PageID: 919
Reese v. Warden Philadelphia FDC, 904 F.3d 244 (3d Cir. 2018)...................................................................................... 39
Rhodes v. Chapman, 452 U.S. 337 (1981) .................................................................................................. 57
Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002)...................................................................................... 33
Ross v. Blake, 136 S. Ct. 1850 (2016) .............................................................................................. 54
SEC v. Mantria Corp., No. 09-2676, 2012 WL 3778286 (D. Colo. Aug. 30, 2012) ........................... 23, 24, 25
Stanko v. Obama, 393 F. App’x 849 (3d Cir. 2010) ............................................................................... 37
Steading v. Thompson, 941 F.2d 498 (7th Cir. 1991) .............................................................................. 51, 52
Swain v. Junior, -- F.3, d --, 2020 WL 2161317 (11th Cir. May 5, 2020) ................................................ 59, 60
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) ...................................................................................................... 57
Teague v. Lane, 489 U.S. 288 (1989) .................................................................................................. 36
Thomas v. Tice, 948 F.3d 133 (3d Cir. 2020)...................................................................................... 51
Thornburgh v. Abbott, 490 U.S. 401 (1989) .................................................................................................. 41
Turner v. Safley, 482 U.S. 78 (1987) .................................................................................................... 41
United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., 839 F.3d 242 (3d Cir. 2016)...................................................................................... 33
United States v. Addonizio, 442 U.S. 178 (1979) .................................................................................................. 36
United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019) .................................................................................... 32
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United States v. Battle, No. 05-cr-377 (VM), 2020 WL 2306482 (S.D.N.Y. May 8, 2020) ............................ 30
United States v. Collins, No. 14-cr-30038 (SEM), 2020 WL 2301217 (C.D. Ill. May 8, 2020)........................ 30
United States v. Davies, No. 17-cr-57 (ERK), 2020 WL 2307650 (E.D.N.Y. May 8, 2020) ...................... 30, 31
United States v. Furando, 655 F. App’x 507 (7th Cir. 2016).............................................................................. 32
United States v. Henderson, 2020 WL 1891888 (M.D. Pa. Apr. 16, 2020) ................................................ 43, 44, 53
United States v. Johnson, 02-cr-1435 (LAP), 2020 WL 2142926 (May 5, 2020) ............................................................................. 30
United States v. Pena, No. 15-cr-551 (AJN), 2020 WL 2301199 (S.D.N.Y. May 8, 2020) ........................... 30
United States v. Raia, 954 F.3d 594 (3d Cir. 2020).............................................................................. passim
United States v. Smith, Crim. No. 15-006, 2019 WL 4016211 (W.D. Va. Aug. 26, 2019)................. 18, 20, 21
United States v. Washington, 549 F.3d 905 (3d Cir. 2008)...................................................................................... 36
United States v. West, Crim. No. 18-48, 2020 WL 1082638 (D.N.J. Mar. 6, 2020)..................................... 18
Valenta v. Ortiz, No. 20-cv-3688 (NLH), 2020 WL 2124944 (D.N.J. May 5, 2020) ........................... 30
Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005).................................................................................. 2, 37
Woodford v. Ngo, 548 U.S. 81 (2006) ................................................................................................ 4, 59
Yeskey v. Pa. Dep’t of, Correc., 118 F.3d 168................................................................................................ 46
Zapata v. United States, 264 F. App’x 242 (3d Cir. 2008) ............................................................................... 38
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Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp. 3d 610 (E.D. Pa. 2015).......................................................................... 58
Federal Statutes 18 U.S.C. 3553(a) ......................................................................................................... 31 18 U.S.C. 3624(c)(2) ..................................................................................................... 14 18 U.S.C. § 3582(c)....................................................................................................... 36 18 U.S.C. § 3582(c)(1)(A) ............................................................... 20, 21, 24, 25, 26, 40 18 U.S.C. § 3621(b) ...................................................................................................... 18 18 U.S.C. § 3626(a)(2) .................................................................................................. 56 18 U.S.C. § 3626(a)(3) ............................................................................................ 55, 56 18 U.S.C. § 3626(g)(4) .................................................................................................. 55 18 U.S.C. §§ 3582......................................................................................................... 20 28 U.S.C. § 1331............................................................................................................. 1 28 U.S.C. § 2241............................................................................... 1, 28, 33, 35, 37, 55 28 U.S.C. § 2255........................................................................................................... 32 29 U.S.C. § 794............................................................................................................. 46 42 U.S.C. § 1997e(a)..................................................................................................... 53 U.S.C. § 2241................................................................................................................ 37 Federal Rules Fed. R. Civ. P. 12(b)(6)....................................................................................... 3, 34, 46 Fed. R. Civ. P. 12(h)(3) ................................................................................................ 33 Federal Rule of Civil Procedure 12(b)(1) ...................................................................... 2 Federal Rule of Civil Procedure 23(a) ..................................................................... 4, 58 Federal Rule of Civil Procedure 65 ............................................................................. 34
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Case 1:20-cv-05496-RMB Document 28-1 Filed 05/18/20 Page 11 of 71 PageID: 922 Federal Regulations 28 C.F.R. part 254........................................................................................................ 50 28 C.F.R. § 39.170(d)(4) ............................................................................................... 50 28 C.F.R. § 542.10 ........................................................................................................ 28 28 C.F.R. § 542.13(a).................................................................................................... 28 28 C.F.R. § 542.18 ........................................................................................................ 29
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PRELIMINARY STATEMENT In response to the COVID-19 pandemic, the Federal Bureau of Prisons (“BOP”) has made extraordinary efforts to safeguard its inmates. Those efforts have not prevented the virus that causes COVID-19 from entering certain facilities. Nor have those efforts spared all of BOP’s inmates from contracting COVID-19. But those efforts have largely worked—including at the Federal Correctional Institution at Fort Dix, New Jersey (“FCI Fort Dix”). Only 58 of the nearly 3,000 inmates at FCI Fort Dix have tested positive for the virus—all from the satellite work camp— and most of them have already recovered. Only one inmate required hospitalization, and he has since tested negative twice and is in recovery. Meanwhile, none of the nearly 2,700 inmates assigned to FCI Fort Dix’s low security facility has tested positive for the virus. But BOP’s reasonable measures to combat COVID-19 are not good enough for Petitioners. They demand relief on a scale never granted by any district court in this Circuit. They advance claims never sanctioned by the Supreme Court or the Third Circuit as cognizable under 28 U.S.C. § 2241. And they do that despite determinations by other courts that at least some of the inmates at FCI Fort Dix deserve no relief from their prison sentences. The Petitioners’ hybrid petition under 28 U.S.C. § 2241 and complaint under 28 U.S.C. § 1331 should be dismissed, and their demand for preliminary injunctive relief should be denied. Petitioners purport to represent a diverse class consisting of all current and future inmates at FCI Fort Dix “over the age of 50 or who experience medical conditions that make them vulnerable to COVID-19.” Petitioners claim that no measures at FCI Fort Dix can mitigate effectively the spread of COVID-19, so their continued imprisonment at the facility supposedly violates their Eighth Amendment rights and those of every inmate in the putative class. Petitioners also advance a claim under the Rehabilitation Act on behalf of a sub-class of disabled

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inmates. And they make the stunning request for mandatory injunctive relief in the form of immediate release or bail pending habeas corpus, which they style an “enlargement of custody.”
If Petitioners got all they wanted, hundreds of inmates would enter the community without a plan to address safety and security. Fortunately, Petitioners cannot obtain any of the relief they seek through § 2241, much less all of it. And their Rehabilitation Act “cause of action” fails to state a claim upon which relief can be granted.
First, the Court lacks jurisdiction over the § 2241 petition because Petitioners’ claims amount to challenges to their conditions of confinement. Those kinds of challenges are not cognizable in a petition for a writ of habeas corpus. Petitioners ask this Court to expand the scope of habeas jurisdiction in the prisoner context to a place never authorized by the Supreme Court or Third Circuit. That is improper, and this Court should dismiss the petition under Federal Rule of Civil Procedure 12(b)(1).
In this Circuit, habeas relief is available only where the alleged deprivation of rights affects the length or duration of imprisonment. Although a federal prisoner can use § 2241 to challenge the execution of his federal sentence, Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 244 (3d Cir. 2005), the portal for such challenges does not permit jurisdiction over Petitioners’ claims. As the Third Circuit made clear in Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012), that portal opens only where the BOP’s execution of the sentence somehow conflicts with a command or recommendation in the sentencing judgment or where granting relief would necessarily reduce the time the petitioner spends in some form of BOP custody.
By seeking to “enlarge” their custody, Petitioners concede they are only trying to change their place of confinement. But they try to sidestep Cardona by insisting that they are challenging the “fact” of their confinement not the conditions
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of that confinement. Their semantical distinction makes no jurisdictional difference. But for conditions related to COVID-19, Petitioners’ claims would not exist. Nor has the Third Circuit ever recognized any “exceptional circumstance” that would allow Petitioners to challenge their conditions of confinement. And there is no need to recognize such a circumstance here. Petitioners have at their disposal other statutory and regulatory avenues to seek (and possibly obtain) the relief they demand here.
Second, this Court should dismiss Petitioners’ claims under the Rehabilitation Act for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). Petitioners do not allege that BOP denied them any benefit solely by reason of their alleged disabilities, or that BOP held any discriminatory animus towards them. Nor do Petitioners allege that they requested a reasonable accommodation for their alleged disabilities or engaged in the required “interactive process.”
Alternatively, if this Court were to hold that it has jurisdiction over the § 2241 petition and that Petitioners have well-pleaded claims, and therefore refuse to dismiss the hybrid petition/complaint outright, this Court should deny Petitioners’ motion for a preliminary injunction. They cannot demonstrate either a reasonable probability of success on the merits or irreparable harm, let alone both, and the balance of the equities favors continued their detention, not mass release.
No matter how much Petitioners pretend otherwise, the Prison Litigation Reform Act applies to all of their claims, and they did not satisfy that Act’s mandatory exhaustion requirement before filing suit. Even worse, their proposed injunctive relief—immediate release or “enlargement of custody” through § 2241— violates the PLRA. Only a three-judge court can enter the “prisoner release order” that Petitioners request, because their claims are not cognizable under § 2241. Meanwhile FCI Fort Dix’s protective measures in response to COVID-19 establish
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that the Government has neither disregarded an excessive risk to inmate health or safety nor acted with deliberate indifference in violation of the Eighth Amendment.
Nor can Petitioners satisfy any of the requirements for class certification under Federal Rule of Civil Procedure 23(a). Simply put, there is no way to decide which inmates should stay, and which inmates should go, without diving into an inmate-specific inquiry. That is why Standing Order 2020-10 requires civil immigration petitions related to COVID-19 to be filed individually, not as collective actions. Here, the proposed class members (including Petitioners) have different preexisting medical conditions, different security classifications, and different placements within FCI Fort Dix.
Moreover, Petitioners cannot meet any of the other requirements for a preliminary injunction. They have not established irreparable harm that they uniquely would suffer if they obtain no relief. To the contrary, COVID-19 poses risks to everyone, not just the inmates at FCI Fort Dix. What’s more, the balance of the equities and the public interest favor the Government. It is “difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.” Woodford v. Ngo, 548 U.S. 81, 94 (2006). And courts should not undermine “BOP’s statutory role” and its “extensive and professional efforts to curtail the virus’s spread.” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). Accordingly, this Court should join the many others that have denied injunctions seeking release because of COVID-19 or stayed injunctions on appeal.
STATEMENT OF FACTS A. Background: Security at FCI Fort Dix and Inmate Placement FCI Fort Dix is a “low security federal correctional institution with an adjacent minimum security satellite camp.” See “FCI Fort Dix,” Bureau of Prisons
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website.1 It is the largest federal prison in America in terms of capacity, capable of housing up to 5,000 inmates. Declaration of James Reiser (“Reiser Decl.”) ¶ 3. Currently, FCI Fort Dix houses under 2,900 inmates in total. Id.
FCI Fort Dix’s satellite camp (the “Camp”) has a relatively low staff-toinmate ratio and is “work- and program-oriented.” Id. ¶ 6. The Camp has dormitorystyle housing and currently has approximately 123 inmates. Id. All of the inmates currently at the Camp have tested negative for COVID-19. Id.; Declaration of Nicoletta Turner-Foster, M.D. (“Turner-Foster Decl.”) ¶ 28.
The majority of FCI Fort Dix’s inmates reside in its low-security facility (referred to as the “Low”). Reiser Decl. ¶ 5. Like the Camp, the Low is programoriented, but has more perimeter fencing and a higher staff-to-inmate ratio. Id. The Low is divided into two compounds (“East” and “West”), which are divided into 370person “units.” Id. ¶¶ 3, 4. Each unit also has military-style dormitories, which were originally built for United States service members, but were converted into a prison in the early 1990s.Id. ¶ 4. The housing units have three floors, consisting of 12-man rooms and a small number of 2-man rooms. Id. ¶ 4. No inmates in the general population of the Low have tested positive for COVID-19. Turner-Foster Decl. ¶ 23.
To determine where to place an inmate within FCI Fort Dix (or at another institution or home confinement), BOP engages in a number of fact-specific and individualized assessments of an inmate, one of which is called a “security designation and custody classification.” BOP Program Statement No. P5100.08, Inmate Security Designation & Custody Classification at 1.2 In general, a custody classification is based on two factors: (1) “[t]he level of security and supervision the
1 https://www.bop.gov/locations/institutions/ftd/ (last visited May 18, 2020). 2 https://www.bop.gov/policy/progstat/5100_008.pdf (last visited May 18, 2020).
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inmate requires”; and (2) “[t]he inmate’s program needs, i.e., substance abuse, educational/vocational training, individual counseling, group counseling, or medical/mental health treatment, etc.” Id. Ch. 1 at 1. For example, an inmate who receives a custody-classification score of 0-11 (a minimum security level) may be placed at the FCI Fort Dix Camp. See id. Ch. 1 at 2. By contrast, an inmate with a custody classification of 12-15 (a low security level) may be placed in the Low. See id. Additionally, BOP is entrusted with the discretion to use “management variables” to place an inmate in a higher-security institution than reflected in the inmate’s point total. See id. Ch. 5 at 1; Ch. 2 at 3. Management variables are used to “ensure the inmate’s placement in the most appropriate level institution.” Id. Ch. 2 at 3.3 Suffice to say, in order to address the safety and security needs of BOP and the community, and in order to place an inmate with the proper program needs as he transitions back into society, BOP’s inmates must be considered on an individualized basis.
B. BOP’s “Action Plan” to Combat the Spread of COVID-19
Since January 2020, in order to combat the spread of COVID-19 at its institutions, BOP has been coordinating with subject-matter experts at multiple organizations and agencies, including the World Health Organization and the Centers for Disease Control (“CDC”).4 As a result of these ongoing efforts, BOP
3 In order to calculate an inmate’s classification score, BOP considers a wide array of information from multiple sources: the sentencing court; U.S. Marshals Service; U.S. Attorney’s Office; and the U.S. Probation Office. See id. Ch. 1 at 2. BOP also evaluates the severity of an inmate’s current offense, an inmate’s history of violence, criminal history, education level, and whether there is any evidence of drug or alcohol abuse. See id. Ch. 6 at 2-9. In assessing an inmate’s “history of violence,” a more violent offense that is closer in time will result in more history-ofviolence points than a less serious offense that occurred a long time ago. See id. Ch. 4 at 9.
4 See Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/ 6

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implemented a multi-phased operational plan called the “Action Plan.” Id. The Action Plan seeks to “mitigate the spread of COVID-19” among inmates and staff, continue effective operations of the federal prison system, and ensure that staff remain healthy and available for duty. Id.
BOP is currently in “Phase 6” of its Action Plan, which is an extension of the nationwide action plan in Phase 5. Turner-Foster Decl. ¶ 14. All inmates in every BOP institution must be secured in their assigned cells/quarters for a period of at least 14 days, in order to stop any spread of COVID-19. Id. ¶ 12(a). “Only limited group gathering will be afforded, with attention to social distancing to the extent possible, to facilitate commissary, laundry, showers, telephone, and Trust Fund Limited Computer System (TRULINCS) access.” Id. ¶ 12(e). “All staff and inmates have been and will continue to be issued an appropriate face covering and strongly encouraged to wear the face covering when in public areas when social distancing cannot be achieved.” Id. ¶ 12(h).
Furthermore “[e]very newly admitted inmate is screened for COVID-19 exposure risk factors and symptoms.” Id. ¶¶ 6, 20. “Asymptomatic inmates with risk of exposure are placed in quarantine.” Id. “Symptomatic inmates are placed in isolation until they test negative for COVID-19 or are cleared by medical staff as meeting CDC criteria for release from isolation.” Id. In addition, all staff were subjected to enhanced health screening in areas of “sustained community transmission,” as determined by the CDC, and at medical referral centers. Id. ¶ 7. “Staff registering a temperature of 100.4 degrees Fahrenheit or higher are barred from the facility on that basis alone.” Id. “A staff member with a stuffy or runny nose can be placed on leave by a medical officer.” Id.
resources/news/20200313_covid-19.jsp (last visited May 18, 2020).
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In addition, “[c]ontractor access to BOP facilities is restricted to only those performing essential services (e.g., medical or mental health care, religious, etc.) or those who perform necessary maintenance on essential systems.” Id. ¶ 12(i). “All volunteer visits are suspended absent authorization by the Deputy Director of BOP.” Id. “Any contractor or volunteer who requires access will be screened for symptoms and risk factors.” Id.
“Social and legal visits were stopped as of March 13, 2020, and remain suspended until at least May 18, 2020, to limit the number of people entering the facility and interacting with inmates.” Id. ¶ 12(j). “In order to ensure that familial relationships are maintained throughout this disruption, BOP has increased detainees’ telephone allowance from 300 minutes to per month to 500 minutes per month. Id. BOP has suspended tours of facilities; it will permit legal visits on a case-by-case basis after the attorney has been screened for infection in accordance with the screening protocols in place for prison staff, contractors, and visitors. Id.
C. FCI Fort Dix’s Implementation of the Action Plan In order to implement the Action Plan at the local level, FCI Fort Dix has at its disposal a Health Services Department “staffed by a comprehensive team of BOP and Public Health Service health care workers, accompanied by professional contract staff committed to providing the highest standards of professionalism and dedication to the inmate population.” Turner-Foster Decl. ¶ 2. The FCI Fort Dix Clinical Staff consists of four physicians, ten Mid-level Providers, eleven Registered Nurses, two Infection Control/Improving Performance Nurses, and two Medication Technicians, as well as four pharmacists, three dentists, and two dental hygienists. Id. ¶ 15. The Health Services Department is accredited by The Joint Commission, the American Correctional Association, and the Accreditation Association for Ambulatory Health Care. Id.
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In terms of communication, “[f]rom the outset of the COVID-19 pandemic, FCI Fort Dix officials have provided regular updates to inmates and staff regarding the virus and the Bureau’s response, and have educated inmates and staff regarding measures that they themselves should take to stay healthy.” Id. ¶ 17. “Since March 2, 2020, the Warden has posted guidance to inmates through the TRULINCS electronic messaging system more than five times.” Id. “Topics have included CDC guidance on COVID-19 and proper handwashing, how to stop the spread of germs, and proper sanitation.” Id. In addition, BOP personnel posted written guidance in housing units and through e-mails. Id.
Beginning on March 16, 2020, all staff and contractors entering FCI Fort Dix have completed a medical questionnaire and temperature check. Id. ¶ 18. Staff and contractors with any symptoms of COVID-19 or fever are sent home by medical staff. Id. “[S]taff were also encouraged to be “fit tested” for N-95 masks, which are necessary for entry to the isolation unit and for escorting inmates on medical trips to other facilities.” Id. ¶ 19.
“From the outset, in accordance with CDC guidance, quarantine and isolation areas were established,” and “the decision was made to make housing unit 5851 in the Low security institution, the isolation unit.” ¶ 22. “Any and all new inmates coming in to FCI Fort Dix are also screened for any fever or symptoms.” Id. ¶ 20. “They are placed in an automatic 14 day quarantine in a specifically designated housing unit (only for these inmates) prior to release to their assigned housing unit.” Id. “The second floor of Unit 5851 are positive inmates and the third floor are inmates in recovery, soon to be released back to general population.” Id. ¶ 22. “Inmates are moved to the recovery floor after a period of isolation for 10 days and symptom free.” Id. ¶ 27. “Staff entering this housing unit are limited to essential staff and must wear full protective PPE including N-95 mask, face shield, a gown and gloves.” Id. One inmate was hospitalized based on COVID-19 symptoms but he
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was not intubated and has since returned to the institution.5 Id. “No other inmates have been hospitalized with COVID-19 complications, and a number of the inmates are completely asymptomatic.” Id.
In April 2020, FCI Fort Dix obtained an Abbott testing machine that allows the facility to test approximately 75 inmates in a 24-hour period (based on the length of the test). Id. ¶ 23. As of this filing, FCI Fort Dix has more than 400 test kits on hand and expects to receive 250 more test kits per week going forward. Id. “The Abbott tests take approximately 20 minutes per inmate, and provide immediate results.” Id. “To date, no inmate at FCI Fort Dix Low has tested positive for COVID-19.” Id. If an inmate were to manifest or complain about symptoms associated with COVID-19, “he immediately would be escorted to the Health Services building and examined by a clinician.” Id. “If COVID-19 is suspected, he would be tested immediately using the Abbot machine.” Id. “If the inmate tested positive, he would be immediately isolated in Unit 5851.” Id.
As of April 5, 2020, all inmates and staff received surgical masks. Id. ¶ 24. “On April 16, 2020, staff and inmate masks became mandatory.” Id. “Staff and inmates were issued a weekly supply of surgical masks.” Id. “During the week of April 29, 2020, inmates and staff were supplied three reusable cloth masks.” Id. “Inmate masks are washed twice weekly by Laundry staff.” Id. “Staff were issued guidance by way of e-mail on how to use and wash the masks.” Id. “Staff have also
5 During the telephone conference with the Court on May 12, 2020, the Government represented that no FCI Fort Dix inmates had been hospitalized for COVID-19 symptoms. That representation was based on information provided to the Government’s attorneys by the BOP. Today the Government’s attorneys learned that that information was incorrect. The Declaration of Dr. Turner-Foster provides the corrected information, stating that one inmate was hospitalized in April 2020 for COVID-19 and that he has since twice tested negative for COVID-19 and is in the recovery unit. See Turner-Foster Decl. ¶ 27.
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been issued a continual supply of surgical masks, and during the last week of April, staff were also provided two cloth masks.” Id.
With respect personal hygiene, on March 22, 2020, FCI Fort Dix installed 300 hand soap dispensers for inmate areas. Declaration of Adam Sassaman (“Sassaman Decl.”) ¶¶ 8, 17. Since installation, dispensers “have been supplied continuously with hand soap[.]” Id. ¶ 18. For the period prior to installation of soap dispensers, “FCI Fort Dix issued inmates, at no cost to them, all-in-one soap to shower and wash hands[,]” and “inmates also had access weekly to commissary, where they could purchase additional hygiene products, including hand soap and hand sanitizer.” Id.
FCI Fort Dix has used disinfectants registered with the EPA to kill COVID19 since the advent of the pandemic and, more recently, has obtained faster-acting products. Id. ¶¶ 12, 20. In addition to spray bottles and other traditional disinfection techniques, FCI Fort Dix obtained multiple backpack sprayers for disinfectant, which “permit faster and more comprehensive disinfection of living and working areas than by-hand cleaning alone.” Id. ¶¶ 19, 23.
On March 20, 2020, FCI Fort Dix issued updated cleaning and disinfection guidance to all staff and inmates, directing (among other things) that frequently touched surfaces must be cleaned every hour. Id. ¶ 14-15, and Att. 3. On April 3, 2020, FCI Fort Dix further updated such cleaning and disinfection guidance. Id ¶ 21 and Atts. 4-5. In addition to ensuring that soap is made available continually to inmates, id. ¶ 18, staff and orderlies regularly and comprehensively clean all facilities at FCI Fort Dix, including: (1) hourly disinfection of frequently touched surfaces; (2) regular (in some cases hourly) cleaning of all electronics and equipment, including all inmate restraints; (3) following new protocols for laundry and the cleaning of soft, porous items; (4) using backpack sprayers during each orderly shift (thus, multiple times daily) to disinfect, inter alia, telephone booths,
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trash receptacles, drinking fountains, bathrooms and bathroom fixtures, offices, doors, furnishings, and all walking surfaces including stairs; and (5) disinfecting all cleaning tools including mops. Id., Atts. 4-5. Protocols include guidance for staff and orderlies to maintain personal hygiene on the job. Id. They also require Department Heads to make a daily report that all cleaning requirements have been met for the day in their area. Id. ¶ 29. Cleaning and disinfection protocols at FCI Fort Dix are designed to meet or exceed guidance from BOP and the CDC. Id. ¶¶ 5, 31.
D. Current Conditions in Different Areas of FCI Fort Dix and Health and Screening Protocols for Inmates in Those Areas
As noted above, FCI Fort Dix has implemented COVID-19 protocols to both (1) educate inmates on the pandemic and preventative measures and (2) combat spread, screen inmates and staff, and isolate those infected with the virus. TurnerFoster Decl. ¶¶ 16-17. No inmates in the Low have tested positive for COVID-19. Id. ¶ 23. In response to positive COVID-19 tests among inmates in the Camp, FCI Fort Dix tested the entire inmate population of that portion of the installation. Id. ¶¶ 2527. FCI Fort Dix has implemented different protocols for the Low, the Camp, and Building 5851 (where COVID-positive inmates are housed), under the broader rubric that all inmates are regularly screened for symptoms of infection and all activities are managed so as to minimize congregate activity and promote distancing. See id. ¶ 14.
1. COVID-19 Circumstances at the Low All inmates at the Low have temperature checks and a symptom assessment every other day (alternating by East and West compound). Id. ¶ 21. “In order to minimize the movement of inmates, sick call slips are being distributed in the housing units.” Id. “Inmates with COVID symptoms are seen immediately.” Id. “The appointments are still handled in the Health Services building; however, the
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appointments are scheduled by housing unit and are limited to approximately 20 inmates so that they can socially distance in the Health Services building.” Id. Finally, to segregate inmates as much as possible, the “pill line” for medication is conducted one unit at a time at the same time inmates are obtaining their “grab and go” meal. Id.
There is currently no plan to test the entire Low, but FCI Fort Dix has testing capacity and supplies to address issues if they arise. Id. ¶ 23. Because it takes 20 minutes to administer, BOP can conduct approximately 75 tests in a 24hour period, and FCI Fort Dix currently has more than 400 kits on hand now with weekly deliveries on the way. Id. There is also no plan to consolidate inmates (at either the Low or the Camp) with preexisting medical conditions into a single space. Id. ¶ 22. Medical professionals at BOP currently believe that it is safer to spread those inmates out across the institution. See id.
2. COVID-19 Circumstances at the Camp The first Camp inmate tested positive for COVID-19 on April 3, 2020. Id. ¶ 25. “The inmate was immediately isolated upon showing of symptoms, and twice daily temperature checks were initiated at the Camp.” Id. Inmates showing or reporting symptoms of the virus were also isolated and tested. Id. “The Camp was also made a Quarantine Unit, meaning any staff member entering the Unit had to don PPE including surgical mask, gown, face shield, goggles and gloves.” Id. “In the Camp, all services are provided inside the Unit including Food Service, Medical, Psychology, Education, and Commissary.” Id. Only inmates who have tested negative for the COVID-19 virus remain at the Camp, currently, 124 inmates. Id. ¶ 28. That number “provides sufficient space for the inmates to social distance.” Id. As of May 18, 2020 FCI Fort Dix has administered 274 tests using the Abbott testing machine, which includes testing of the entire Camp population. Turner-
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Foster Decl. ¶ 27. Of those tests, 58 Camp inmates tested positive for COVID-19. Id. Twenty-two of them remain in isolation in Unit 5851, and 27 are on the third floor in recovery, pending return to the Camp. Id. “Inmates are moved to the recovery floor after a period of isolation for 10 days and symptom free.” Id. “Staff entering this housing unit are limited to essential staff and must wear full protective PPE including N-95 mask, face shield, a gown and gloves.” Id. “One inmate was hospitalized based on COVID-19 symptoms.” Id. “He was never intubated and has since returned to the institution.” Id. “No other inmates have been hospitalized with COVID-19 complications, and a number of the inmates are completely asymptomatic.” Id.6
E. BOP’s “Careful, Individualized Determinations” for Home Confinement
In conjunction with the efforts within FCI Fort Dix to combat the spread of COVID-19 through the Action Plan, BOP is exercising its discretion and increased authority under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act to place inmates in “prerelease custody” under 18 U.S.C. 3624(c)(2), which includes “home confinement.” See BOP Program Statement No. 7320.01, Home Confinement.7
BOP describes home confinement as “a time of testing and an opportunity for inmates to assume increasing levels of personal responsibility while providing sufficient restriction to promote community safety and continue the sanction of the sentence.” Id. at 1. Direct transition from FCI Fort Dix to home confinement is
6 The Government recognizes that this is a rapidly evolving situation, and the situation may change on a daily basis. Respondents will provide the Court with updated information, as appropriate. 7 https://www.bop.gov/policy/progstat/7320_001_CN-1.pdf (last visited May 18, 2020).
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generally appropriate “only in the most extraordinary circumstances” based on the following factors:
has no public safety factors, had excellent institutional adjustment, has a stable residence with a supportive family, has confirmed employment (if employable), and has little or no need for the services of a [Community Corrections Center].
Id. at 3, 7. Under the CARES Act, the Attorney General issued guidance on April 26,
2020 “prioritizing” home confinement for “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.”8 In making this determination, BOP is to “consider the totality of circumstances for each individual inmate” based on the following non-exhaustive factors:
• The age and vulnerability of the inmate to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines;
• 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 reentry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which
8 https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf (last visited May 18, 2020).
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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 1-2. While considering these factors, the Attorney General emphasized that BOP
“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.” Id. at 2. Accordingly, any inmate granted home confinement under this guidance was required to be “in a mandatory 14-day quarantine period” before being “discharged from a BOP facility.” Id. “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.” Id.
On April 3, 2020, the Attorney General updated his home confinement guidance to BOP and issued additional directives in light of the passage of the CARES Act.9 The CARES Act authorized the Attorney General “to expand the cohort of inmates who can be considered for home release upon [his] finding that emergency conditions are materially affecting the functioning of [BOP].” Id. The Attorney General also identified specific BOP facilities “experiencing significant levels of infection,” which did not include FCI Fort Dix. See id. at 1-2 (identifying FCI Oakdale, FCI Danbury, and FCI Elkton).
The CARES Act, as implemented by the Attorney General, expanded the authority for BOP to review “all at-risk inmates—not only those who were
9 https://www.justice.gov/file/1266661/download (last visited May 18, 2020).
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previously eligible for transfer.” Id. at 2. But this expanded authority did not militate BOP’s obligation to protect public safety. See id. “That means [BOP] cannot simply release prison populations en masse onto the streets.” Id. “Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses.” Id. As the Attorney General explained, the “last thing” the public needs right now is the “indiscriminate release” of inmates without “careful, individualized determinations”:
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.
Id. at 3. BOP has generally prioritized for home confinement those inmates who have
served a certain portion of their sentences, or who have only a relatively short amount of time remaining in those sentences. “Priority is given to inmates that have served at least 50% of their sentence imposed.” Reiser Decl. ¶ 24. “Initially, the BOP identified inmates that met the above criteria and served at least 50% of the sentence imposed.” Id. “However, in order to make more inmates eligible for home confinement, the BOP changed the criteria to 50% of the statutory sentence (i.e. the sentence length factoring in good conduct time).” Id.
Congress’s decision to grant the Attorney General and BOP this additional CARES Act authority reflects a long-standing practice of deferring to BOP
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regarding the transfer and placement of inmates. By law, BOP “shall designate the place of the prisoner’s imprisonment” based on an individualized and fact-intensive analysis of the following factors:
(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence -- (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
18 U.S.C. § 3621(b). “Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the Bureau under this section to determine or change the place of imprisonment of that person.” Id. Furthermore, “a designation of a place of imprisonment under this subsection is not reviewable by any court.” Id.10
After reviewing its inmates for eligibility under the CARES Act, FCI Fort Dix referred 56 inmates for transfers to home confinement. Reiser Decl. ¶¶ 24-25. Twenty-four of those inmates have already transferred to home confinement, and 15 are scheduled to transfer to home confinement through the end of May. Id. ¶ 25. Moreover, BOP is undertaking similar efforts in all of its facilities to determine which inmates meet the criteria established by the Attorney General, resulting in the transfers of 2,799 inmates to home confinement. See https://www/bop.gov/
10 Federal courts routinely dismiss requests for alternative placement on the grounds that they lack authority to review BOP’s placement decisions. United States v. West, Crim. No. 18-48, 2020 WL 1082638, at *2 (D.N.J. Mar. 6, 2020) (concluding that “courts are explicitly prohibited from intervening in the [BOP] determination on that topic”); United States v. Smith, Crim. No. 15-006, 2019 WL 4016211, at *2 (W.D. Va. Aug. 26, 2019) (discussing various statutes and concluding that “they do not vest placement authority in this Court”).
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coronavirus/ (last visited May 18, 2020). Additionally, 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. ¶¶ 16, 24.
The chart below lists 39 inmates that BOP has either transferred or expects to transfer to home confinement by May’s end using its CARES Act authority. Respondents have redacted the inmates’ names and register numbers, but provide the redacted information to the Court and the parties, if requested.

Name (redacted) Inmate 1 Inmate 2 Inmate 3 Inmate 4 Inmate 5 Inmate 6 Inmate 7 Inmate 8 Inmate 9 Inmate 10 Inmate 11 Inmate 12 Inmate 13 Inmate 14 Inmate 15 Inmate 16 Inmate 17 Inmate 18 Inmate 19 Inmate 20 Inmate 21 Inmate 22 Inmate 23 Inmate 24 Inmate 25 Inmate 26 Inmate 27 Inmate 28 Inmate 29

Reg. No. #####-#53 #####-#66 #####-#54 #####-#53 #####-#83 #####-#80 #####-#54 #####-#54 #####-#50 #####-#50 #####-#54 #####-#83 #####-#50 #####-#66 #####-#66 #####-#48 #####-#66 #####-#53 #####-#54 #####-#50 #####-#37 #####-#88 #####-#54 #####-#36 #####-#54 #####-#54 #####-#54 #####-#50 #####-#66
19

Release Date 4/15/2020 4/15/2020 4/21/2020 4/28/2020 4/28/2020 4/30/2020 4/30/2020 5/5/2020 5/5/2020 5/5/2020 5/5/2020 5/5/2020 5/6/2020 5/7/2020 5/7/2020 5/7/2020 5/7/2020 5/7/2020 5/12/2020 5/12/2020 5/12/2020 5/14/2020 5/14/2020 5/14/2020 5/19/2020 5/19/2020 5/19/2020 5/20/2020 5/21/2020

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Name (redacted) Inmate 30 Inmate 31 Inmate 32 Inmate 33 Inmate 34 Inmate 35 Inmate 36 Inmate 37 Inmate 38 Inmate 39
Total

Reg. No. #####-#53 #####-#66 #####-#55 #####-#67 #####-#50 #####-#54 #####-#53 #####-#50 #####-#66 #####-#18

Release Date 5/21/2020 5/21/2020 5/21/2020 5/26/2020 5/26/2020 5/26/2020 5/27/2020 5/27/2020 5/28/2020 5/28/2020 39

BOP had hoped to include Petitioner Bogdan on this list and release him to home confinement on May 14, 2020. See Reiser Decl. ¶ 26 and Ex. 6. But on May 13, 2020, the United States Probation Department notified FCI Fort Dix that his wife refused to allow him to release to her home. Id. and Ex. 7 (Probation Dep’t Denial Memo). BOP gave him the opportunity to provide another release residence, but he proved unable to provide another location. Id. So Probation denied his placement, and his home confinement date was removed. Id.
Home confinement is not the same thing as “compassionate release” (which is also called “early release” or “Reduction in Sentence”). In contrast to BOP’s wide discretion regarding home confinement, BOP does not have authority to provide inmates with a reduction in sentence through compassionate or “early release.” Only an Article III judge—in the District of conviction—may authorize such a reduction of an inmate’s federal sentence. See 18 U.S.C. § 3582(c)(1)(A).
Under § 3582(c)(1)(A), BOP may make a motion to an inmate’s sentencing court to reduce a term of imprisonment. BOP uses that statutory authority in “extraordinary or compelling circumstances that could not reasonably have been foreseen by the court at the time of sentencing.” See BOP Program Statement 5050.50, Compassionate Release/Reduction In Sentence Procedures for

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Implementation of 18 U.S.C. §§ 3582 and 4205(g).11 In addition, after the First Step Act, an inmate may file a motion to reduce his sentence directly in the sentencing court after exhaustion of administrative remedies, or 30 days from the date the warden receives the inmate’s request from the inmate, whichever is earlier. See 18 U.S.C. § 3582(c)(1)(A). The sentencing courts have released ten inmates from FCI Fort Dix since April 7, 2020 under these statutory procedures:

Inmate Name BUTLER CROSBY QUIAMBAO PLATTEN LOGAN MOSKOWITZ BRYANT PENA COPELAND AL-JUMAIL
Total

Reg. No. 67355-050 88239-012 85923-053 73323-004 91880-054 75786-053 21125-014 72708-054 24627-037 47136-039

Release Date 4/7/2020 4/7/2020 4/13/2020 4/20/2020 4/29/2020 5/5/2020 5/8/2020 5/8/2020 5/12/2020 5/12/2020 10

F. Petitioners’ Request for Class-Wide “Release” of Inmates
On April 24, 2020, Petitioners filed this petition for a writ of habeas corpus purporting to represent a class consisting of all current and future FCI Fort Dix inmates “over the age of 50 or who experience medical conditions that make them vulnerable to COVID-19.” Pet. ¶ 135. Petitioners allege that their constitutional rights are being violated because they might contract COVID-19 while incarcerated. See id. ¶¶ 120-126. For these alleged violations, Petitioners seek mandatory injunctive relief in the form immediate release or bail pending habeas corpus, which they trivialize as an “enlargement of custody.” Id. at 55; see also id. ¶ 6 (seeking

11 https://www.bop.gov/policy/progstat/5050_050_EN.pdf (last visited May 11, 2020). 21

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“enlargement of custody, and ultimately, if [Petitioners] cannot be held in constitutional custody, for release”) (emphasis added); id. ¶¶ 7-11 (suggesting Petitioner receive “home confinement” or be “released”) (emphasis added).
Petitioners also allege that a sub-class of disabled inmates deserve relief under the Rehabilitation Act of 1973 (the “Rehab Act”). Id. ¶ 136. Under this statute, Petitioners assert that they are entitled to the following “reasonable accommodations” in “a facility with reduced population that might allow for adequate social distancing”:
separate living spaces rather than high-capacity shared rooms and dorms with people in close proximity; free distribution of adequate cleaning supplies, including soap; free distribution of adequate personal protective equipment, including masks and gloves; staggered access to bathrooms, meals, and other shared resources; assignments of correctional staff that mitigates the possibility staff will transmit COVID-19, even asymptomatically, from one building to another; and adequate access to tests and information about risk.
Id. ¶ 162. Petitioners do not set forth a specific plan for how to deal with the safe and
orderly release of hundreds (or perhaps even thousands) of inmates—some of whom could be drug traffickers, child predators, and gang members. Instead, Petitioners first seek a blanket ruling that continued detention of any members of the class is unconstitutional because, from Petitioners’ perspective, “no set of conditions would be constitutionally sufficient.” See Petitioners’ Mov. Br. at 26, ECF No. 9-1. If the Court were to make such a ruling, Petitioners next suggest that the Court (in lieu of BOP) evaluate each class member individually to determine the appropriate conditions (if any) for release or home confinement. See Pet. at 55-56 (relief requested). Alternatively, Petitioners imply that a special master could assume the Court’s administrative duties to oversee the class members at FCI Fort Dix. See Pet. ¶ 45 n.43 (explaining procedures for release, including special masters).
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G. Petitioners’ Compassionate-Release Requests Petitioner Troy Wragg is a 38-year-old inmate serving a 22-year collective sentence for engaging in fraud offenses that prompted not just one, but two federal prosecutions. As the mastermind of Mantria Corporation, Wragg ran “a massive Ponzi scheme that raised over $54 million and defrauded hundreds of investors.” SEC v. Mantria Corp., No. 09-2676, 2012 WL 3778286, at *1 (D. Colo. Aug. 30, 2012). Mantria claimed to earn millions of dollars from selling real estate and “green energy” products. See United States v. Wragg, Case No. 15-cr-00398-JHS (E.D. Pa.) (“Wragg I”), ECF No. 1 ¶ 1 (indictment). On March 2, 2017, Wragg pleaded guilty to all ten counts in the indictment. See id., ECF No. 297 (judgment). While on pretrial release, Wragg was enjoined from participating in the offer or sale of any security. See United States v. Wragg, Case No. 18-cr-465-JHS (E.D. Pa.) (“Wragg II”), ECF No. 1 ¶ 1 (criminal information). Nonetheless, from January 2017 to December 2017, Wragg created an online dating website and solicited investments in that business. Id. ¶¶ 4-7. As a result, on October 24, 2018, the Government charged him with wire fraud. Id. ¶ 8. On December 7, 2018, Wragg pleaded guilty to this charge, too. See Wragg II, ECF No. 24 (judgment). On August 21, 2019, the district court sentenced Wragg in both cases to a collective term of imprisonment of 264 months. See Wragg I, ECF No. 297; Wragg II, ECF No. 24. Wragg began serving his sentence on September 4, 2019, and assuming he receives all good time credit available to him, his projected release date is August 7, 2037. See Reiser Decl. ¶ 27 and Ex. 8 at 001. So far, Wragg has served approximately one year and five months of his prison sentence, or 6.7%. See id. ¶ 27 and Ex. 8 at 004. Despite having served so little of his sentence, Wragg filed a request for compassionate release with Warden Ortiz. See Reiser Decl. ¶ 9 and Ex. 1. In that request, Wragg noted he receives medical care in FCI Fort Dix’s chronic care clinic
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for epilepsy, an unspecified mental health condition, and high blood pressure. Id. But unlike his claims here, Wragg did not claim in his compassionate release request that he has a “chronic autoimmune neuromuscular disease” or had suffered a heart attack. Compare Reiser Decl. ¶ 9 and Ex. 1 with Pet. ¶ 7. Wragg did not invoke any of the criteria in BOP Program Statement 5050.50, but instead rested his request on the risk of contracting COVID. See Reiser Decl. ¶ 9.
On April 17, 2020, the BOP denied Wragg’s request because he did not meet the necessary criteria for compassionate release under BOP policy. See id. On May 8, 2020, and then again on May 13, 2020 through counsel other than his counsel here, Wragg moved his sentencing court for a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A). See Wragg I, ECF No. 298-300. Meanwhile, BOP has concluded that Wragg is not a candidate for extended home confinement at this time because his recidivism risk score is too high. See id. ¶ 27 and Ex. 9 (Wragg Inmate Profile).
Petitioner Michael Scronic is a 49-year-old inmate who, like Wragg, bilked millions of dollars from unsuspecting victims. In April 2010, Scronic set up an investment pool (the Scronic Macro Fund) that he ran from his home. See United States v. Scronic, No. 18-cr-0043-CS (S.D.N.Y.), ECF No. 1 ¶ 1(b) (indictment). Scronic misappropriated money from that fund to support his lavish lifestyle. See id. ¶ 5. On March 15, 2018, he pleaded guilty to one count of securities fraud. See id., ECF No. 28. On September 27, 2018, Scronic was sentenced to 96 months’ imprisonment. Id., ECF No. 48 (judgment). He began serving his sentence on November 26, 2018, and assuming he receives all good conduct time available to him, his projected release date is September 18, 2025. See Reiser Decl. ¶ 29 and Ex. 12 at 001 (Scronic Public Information Inmate Data). So far, Scronic has served approximately one year and five months of his prison sentence, or 18%. See id. ¶ 29 and Ex. 12 at 003.
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According to the petition, Scronic has “a history of abnormal heart symptoms, severe childhood asthma, and skin cancer,” as well as “one or more disabilities recognized by the Rehabilitation Act.” Pet. ¶ 8. He is currently housed at the Camp at FCI Fort Dix where all inmates have tested negative, including him. See TurnerFoster Decl. ¶ 30; Reiser Decl. ¶ 6. “If his custody were enlarged to include home confinement or if he were released,” Scronic claims he would “live with his sister and her two children in New York.” Pet. ¶ 8.
Without pursing any administrative remedies, on April 7, 2020, Scronic filed a motion for compassionate release with the sentencing court. Scronic, No. 18-cr0043-CS (S.D.N.Y.), ECF No. 71 (motion for compassionate release). On April 20, 2020, the Court denied the motion without prejudice because Scronic had not exhausted his administrative remedies. The court further stated:
[W]hile the Court acknowledges that incarcerated persons like persons on naval vessels or in nursing homes, are at elevated risk, Mr. Scronic has not suggested that he suffers from any condition that places him at greater risk than any other prisoner, and given how little of his sentence he has served, he does not appear to be a promising candidate for compassionate release. But his motion for compassionate release is denied without prejudice to renewal if he makes an application to the BOP and the BOP does not act upon it within thirty days of its receipt.
Id., ECF No. 73 (text order). While that motion was pending, on April 16, 2020, Scronic submitted a
request to the Warden of FCI Fort Dix for compassionate release. See Reiser Decl. ¶ 10 and Ex. 3 (release request). That request is still pending and only today has 30 days lapsed since the Warden received the request. That means Scronic can now return to his sentencing court and seek a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A). See Raia, 954 F.3d at 596-97.
Petitioner Leonard Bogdan is a 68-year-old inmate who operated multiple fraudulent financial investment companies that targeted and swindled elderly
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investors. See United States v. Bogdan, No. 05-cr-14090-JEM (S.D. Fla.), ECF No. 3 (indictment). On March 9, 2007, a jury returned a guilty verdict against Bogdan on all 16 counts of his indictment. See id., ECF No. 348. On May 18, 2007, Bogdan was sentenced to an aggregate 360-month term of incarceration.
In the petition, Bogdan claims he “has a heart condition, hypertension, high cholesterol, skin cancer, a potentially cancerous thyroid nodule that causes rapid heartbeat, and severe scoliosis that has displaced his kidneys and presses on his lungs causing chronic shortness of breath,” as well as “one or more disabilities recognized by the Rehabilitation Act.” Pet. ¶ 9.12 He adds that he “is housed in an honor unit in the Fort Dix main facility’s west compound.” Id. “If his custody were enlarged to include home confinement or if he were released,” Bogdan asserted he would “live with his wife in West Virginia.” Id.
In July 2019, Bogdan sought compassionate release. Reiser Decl. ¶ 12 and Ex. 5. On August 15, 2019, the BOP denied the request because Bogdan had served less than 50% of his sentence. Id. He has not submitted a new request for compassionate release to the BOP in light of COVID-19. Id. Instead, on April 20, 2020, Bogdan filed a motion for a reduction of sentence in the sentencing court. See Bogdan, No. 05-cr-14090-JEM, ECF No. 596 (motion to amend/reduction in sentence).13 The sentencing court denied the motion, finding that it lacked jurisdiction to order home confinement and noting that the Second Chance Act gave that authority exclusively to the BOP. See id., ECF No. 599 at 2-3. The court also
12 Bogdan’s medical conditions are well-controlled with medication. See TurnerFoster Decl. ¶ 31.
13 Bogdan originally moved for a reduction of sentence pursuant to the United States Sentencing Commission Amendment 782. See ECF No. 593, United States v. Bogdan, Case No. 05-cr-14090-JEM. Then Bogdan moved to amend that motion to add a request for a reduction of sentence under 18 U.S.C. § 3582(C)(1)(A). See id., ECF No. 596.
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found no indication that Bogdan’ had exhausted his mandatory administrative remedies. Id. And the court said it did “not intend to become a one-person parole board and intrude upon the BOP’s jurisdiction.” Id. at 3.
Proving the court’s faith in BOP was not misplaced, BOP determined that Bogdan qualified for home confinement through the CARES Act. See Reiser Decl. ¶ 26 and Ex. 6. However, as noted above, on May 13, 2020, the United States Probation Department notified FCI Fort Dix that Bogdan’s wife refused to allow him in their home. Id. and Ex. 7 (Probation Dep’t Denial Memo). Bogdan was notified and given the opportunity to provide another release residence, but he was unable to provide another location. Id. As such, Probation denied his placement in their district, and his home confinement date was removed. Id.
Petitioner Eliezer Soto-Concepcion is a 38-year-old inmate who belonged to a large drug-trafficking operation. See United States v. Soto-Concepcion, No. 15-cr00181-JEJ (M.D. Pa.), ECF No. 1 (indictment). On August 26, 2015, he and several others were charged in a twelve-count indictment. See id. The charges stemmed from controlled buys of heroin, cocaine base and cocaine hydrochloride from coconspirators and execution of search warrants yielding more drugs, drug paraphernalia, and 19 firearms. See id., ECF No. 630 at 1-2 (sentencing memo).
Soto-Concepcion pleaded guilty to count one of the indictment, and on November 17, 2017, he was sentenced to a 144-month term of incarceration. See id, ECF No. 650 at 1 (judgment). The sentencing court held him responsible for at least 10.219 kilograms of heroin, i.e., at least 408,000 doses of potentially fatal heroin. See id. at 7. Assuming Soto-Concepcion receives all available good time credit, his projected release date is September 5, 2025. See Reiser Decl. ¶ 28 and Ex. 10 at 001 (Soto-Concepcion Public Information Inmate Data). So far, Soto-Concepcion has served approximately 4 years and 11 months of his sentence, which is approximately 41%. See id. ¶ 28 and Ex. 10 at 003.
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In the petition, Soto-Concepcion says he “has high blood pressure, a history of heart attacks, and a nervous system condition that makes his hands shake,” as well as “one or more disabilities recognized by the Rehabilitation Act.” Pet. ¶ 10. He adds that “[i]f his custody were enlarged to include home confinement or if he were released,” he would “live with his grandmother in Puerto Rico.” Pet. ¶ 10. He is housed in the Camp and has tested negative for COVID-19. Turner-Foster Decl. ¶ 32. Furthermore, his medical conditions are stable. See Turner-Foster Decl. ¶ 32.
H. BOP’s Administrative Exhaustion Procedures Petitioners allege that they have “exhausted the administrative remedies available to them.” Id. ¶ 20. Alternatively, if they “are deemed not to have exhausted,” Petitioners assert that they “are all excused from 28 U.S.C. § 2241’s exhaustion requirement.” Id. According to Petitioners, that exhaustion requirement “does not apply” to them because they have alleged “irreparable injury without immediate judicial relief” and claim that “the administrative remedy would be futile.” Id. BOP’s administrative remedies have several tiers allowing “an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10. An inmate must first “present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy.” 28 C.F.R. § 542.13(a). Second, if the inmate is not satisfied, he may file a “formal written administrative Remedy Request, on the appropriate form (BP-9),” within “20 calendar days following the date on which the basis for the Request occurred.” § 542.14(a). Third, if the inmate “is not satisfied with the Warden’s response,” which must issue within 20 days, the inmate may “submit an Appeal on the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the
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response.” §§ 542.15(a), 542.18. Finally, “[a]n inmate who is not satisfied with the Regional Director’s response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response.” § 542.15(a). The General Counsel has 40 days to respond. 28 C.F.R. § 542.18. If an issue raised by the inmate concerns “an emergency” that “threatens the inmate’s immediate health or welfare, the Warden shall respond not later than the third calendar day after filing.” 28 C.F.R. § 542.18.
Wragg allegedly “made three applications for Compassionate Release and/or Home Confinement to Respondent Ortiz.” Pet. ¶ 17. “On April 24, he received a letter from Respondent Ortiz denying them.” Id. Bogdan also “applied for Compassionate Release from Respondent Ortiz and was denied”’; he “appealed the denial administratively to the BOP Regional Office and received an ultimate denial from Washington, D.C.” Id. ¶ 18. And on April 20, 2020, Bogan supposedly learned from “ his case manager that he was denied release on Home Confinement.” Id. Meanwhile, Scronic’s and Soto-Concepcion’s requests for compassionate release supposedly have received no response from the Warden. Id. ¶ 19.
Nevertheless, according to BOP’s administrative records, Petitioners Wragg, Scronic and Soto-Concepcion have never filed an administrative grievance while incarcerated at FCI Fort Dix, let alone a grievance/administrative remedy request raising issues about their conditions of confinement at FCI Fort Dix due to COVID19 concerns. See Declaration of Christina Clark (“Clark Decl.”) ¶ 5 and Exs. 1-3. Petitioner Bogdan filed a number of grievances between 2016 and November 2019 challenging the denial of his request for Compassionate Release, but he has not filed a grievance since the COVID-19 pandemic began in 2020. See id. ¶ 5 and Ex. 4.
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I. Other Inmates at FCI Fort Dix. As noted, FCI Fort Dix currently houses roughly 3,000 inmates. At last count, 24 inmates in addition to the four Petitioners here have filed § 2241 petitions demanding transfer to home confinement because of their fear of COVID-19. See Declaration of Mark E. Coyne (“Coyne Decl.”) ¶ 2. Some of those petitions have been administratively terminated; others have been dismissed for failure to exhaust; still others remain pending. See, e.g., Valenta v. Ortiz, No. 20-cv-3688 (NLH), 2020 WL 2124944 (D.N.J. May 5, 2020). Meanwhile, other FCI Fort Dix inmates have requested reductions in sentence. See id., ¶¶ 4, 9. Many of those requests, too, rely in part on fear of COVID19. See id. As noted at page 18 above, 10 of those requests have been granted so far. E.g., United States v. Pena, No. 15-cr-551 (AJN), 2020 WL 2301199 (S.D.N.Y. May 8, 2020). Others have been denied. E.g., United States v. Davies, No. 17-cr-57 (ERK), 2020 WL 2307650 (E.D.N.Y. May 8, 2020); United States v. Battle, No. 05-cr-377 (VM), 2020 WL 2306482 (S.D.N.Y. May 8, 2020); United States v. Collins, No. 14-cr30038 (SEM), 2020 WL 2301217 (C.D. Ill. May 8, 2020); United States v. Johnson, 02-cr-1435 (LAP), 2020 WL 2142926 (May 5, 2020). Even a cursory review of those inmates’ petitions and requests shows why an individualized review—preferably by the sentencing court—is necessary. For example, in denying Ronald Collins compassionate release for his asthma, high blood pressure and history of coronary artery disease, the court explained:
Defendant has over fifteen years left on his [300-month prison] sentence for receipt of child pornography. Defendant not only possessed videos and photographs depicting child pornography, he personally exploited a minor female by persuading her to produce sexually explicit photographs and videos. Defendant was also previously convicted of the Aggravated Criminal Sexual Abuse of a different minor female.
Collins, 2020 WL 2301217, at *2. Nor had Collins “proposed an adequate release
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plain”; to the contrary, he “would not have any place to reside were he to be
immediately released from custody.” Id.
Similarly, in denying Quaimme Davies compassionate release for his
“moderate asthma,” the court explained:
Davies’s request for compassionate release would effectively result in a sentence of a little more than three years and three months. This, for an “abhorrent” and violent crime which terrorized four Chase Bank employees—all of whom were required at gunpoint to comply with the demands of Davies and Altino, and one of whom was held hostage when the police arrived. Such a sentence would make a mockery of the considerations enumerated in 18 U.S.C. 3553(a). It would not come close to reflecting the seriousness of the offense, or providing just punishment for the offense. Moreover, rather than promoting respect for the law and its deterrent effect, it would undermine it. Finally, the nature of the offense, not to speak of Davies’s prior conviction for possession of a loaded 9mm pistol, does not provide confidence that his release would protect the public from further harms.
Davies, 2020 WL 2307650, at *2.
Meanwhile, James Gomez is one of the inmates who tested positive for
COVID-19. Coyne Decl. at A1. On May 5, 2020, Gomez moved for a reduction of
sentence because of that positive test. Id. But he left out that he had recovered from
his symptoms and appeared to be in good health. Id. On May 2, 2020, Gomez wrote
“I feel 100%.” Id. at A1, A6, A13. On May 5, 2020, Gomez wrote “im feeling way
better now” and was waiting to move from isolation on the second floor of Unit 5851
to the recovery area on the third floor. Id. at A7, A15. During a May 4, 2020 call,
Gomez said “I don’t have any symptoms anymore” and laughed often. Id. at A7. The
court, in denying compassionate release, reprimanded defense counsel:
filing a petition, such as one you have filed, does a disservice to every lawyer who is filing petitions for compassionate release because it would, in effect, create some question in the mind of a judge as to whether the petitions which are being submitted are being submitted, as this one is, without any factual basis, without any justification for claiming that your client was about to die, that there is an extraordinary
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and compelling reason to release him from prison, and it does a disservice and raises questions about these petitions, which are being filed not by the hundreds now but by the thousands. Id. at A25-A26. On the other hand, this Court denied Joseph Furando’s first fear-of-COVID19-based § 2241 petition for failure to exhaust. Furando v. Ortiz, No. 20-cv-3739 (RMB), 2020 WL 1922357 (D.N.J. Apr. 21, 2020). This Court later treated asupplemental pleading by Furando as a new § 2241 petition. Coyne Decl. ¶ 6 and A29-A40. But Furando left out why his sentencing court saw fit to impose a 240month term of imprisonment for his supposedly non-violent fraud, false statement and money laundering offenses. See United States v. Furando, 655 F. App’x 507 (7th Cir. 2016) (affirming that sentence). While on pretrial release, Furando sexually assaulted and raped an employee, tried to frame a witness for prostitution, manufactured evidence, and suborned perjury. Id. And while waiting to be sentenced, Furando tried to get his cellmate to murder two witnesses and help him traffic drugs. Id. Other inmates at FCI Fort Dix have invoked their fear of COVID-19 to demand release on bail pending the disposition of their appeals. For example, Christopher Thieme is serving a 17½-year term of imprisonment for attempted kidnapping and soliciting a murder for hire. Coyne Decl. ¶ 7 and A41. He is trying to appeal the dismissal of his motion under 28 U.S.C. § 2255. Id. And Raymond Aigbekaen is serving a 15-year term of imprisonment for sex trafficking a minor and other offenses. Coyne Decl. ¶ 9 and A60; see United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019). He is appealing the denial of his § 2241 motion challenging the validity of his conviction and sentence. Id. Both inmates sought bail pending the disposition of their appeals, relying in part on their fear of contracting COVID-19 if
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they remain at FCI Fort Dix. Coyne Decl. ¶¶ 7, 9. The Court of Appeals denied both motions summarily. Id., ¶¶ 8, 10 and A59, A63.
STANDARD OF REVIEW A. Rule 12(b)(1) Standard A motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) “attacks the right of a plaintiff to be heard in Federal Court.” Doughty v. United States Postal Serv., 359 F. Supp. 2d 361, 364 (D.N.J. 2005) (quoting Cohen v. Kurtzman, 45 F. Supp. 2d 423, 428 (D.N.J. 1999)).14 The court may dismiss for lack of subject-matter jurisdiction at “any time,” regardless of whether an answer has been filed. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); Berardi v. Swanson Mem’l Lodge No. 48, 920 F.2d 198, 200 (3d Cir. 1990) (“[T]he Supreme Court made clear that a facially sufficient complaint may be dismissed before an answer is served if it can be shown by affidavits that subject matter jurisdiction is lacking.”) (citing KVOS, Inc. v. Associated Press, 299 U.S. 269 (1936)) (Alito, J.). “A motion to dismiss for lack of subject matter jurisdiction may present either a facial or factual challenge to the complaint.” Brill v. Velez, Civil Action No. 13-cv05643, 2014 U.S. Dist. LEXIS 87668, at *2 (D.N.J. June 27, 2014). In considering a factual challenge, as Respondents bring here, the Court is not bound by the petitioner’s allegations and “may consider evidence outside the pleadings.” United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., 839 F.3d 242, 251
14 Habeas corpus petitions filed under 28 U.S.C. § 2241 are governed by the Rules Governing Section 2254 Cases in the United States District Courts. See Derrick v. United States Dep’t of Justice, No. 12-cv-1842, 2012 U.S. Dist. LEXIS 187985, at *13-14 (M.D. Pa. Sept. 17, 2012), R&R adopted, 2013 U.S. Dist. LEXIS 65234 (M.D. Pa. May 8, 2013). The Federal Rules of Civil Procedure are “applicable to habeas petitions to the extent they are not inconsistent with the Habeas Rules.” Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002).
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(3d Cir. 2016). Furthermore, “[t]he presumption of truth does not extend to” a factual attack on jurisdiction, “‘and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.’” Courts v. United States, Civil Action No. 15-7303 (MLC), 2016 U.S. Dist. LEXIS 115268, at *7 (D.N.J. Aug. 29, 2016) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).
B. Rule 12(b)(6) Standard A motion seeking dismissal under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 663 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The Court need not consider “legal conclusions” contained within a complaint, and “a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. at 678. C. Review of Motions for Preliminary Injunction Federal Rule of Civil Procedure 65 governs the issuance of a preliminary injunction. Injunctive relief can only be granted if Petitioners can satisfy the following factors: “(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting preliminary relief will be in the public interest.” N.J. Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 385-
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86 (3d Cir. 2012) (internal quotations omitted). Preliminary injunctive relief is an “extraordinary remedy, which should be granted only in limited circumstances.” Novartis Consumer Health, Inc. v. & Johnson–Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002).
For the following reasons, this Court should dismiss the § 2241 petition, both for lack of jurisdiction and for failure to state a legally viable claim. Alternatively, this Court should deny the motion for a preliminary injunction and strike Petitioners’ class allegations.15
LEGAL ARGUMENT I. The Court Lacks Jurisdiction over the Petition
It is irrelevant whether Petitioners characterize their claims as a challenge to the “fact of their confinement” or the “conditions of their confinement.” At bottom, the petition seeks to use 28 U.S.C. § 2241 to circumvent (and in some respects, relitigate) criminal law, the CARES Act, the PLRA, and BOP regulations based on the specter of COVID-19. The petition is also contrary to the principle of finality of judgments, an essential element of the criminal justice system. No district court in this Circuit has ever granted habeas relief to a federal inmates for such a purpose, particularly given the statutory and regulatory avenues of possible relief available to Petitioners. Thus, the petition should be dismissed for lack of jurisdiction.
15 Moving briefs and opposition briefs in proportional 12-point font are limited to 30 pages under Local Rule Civil Rule 7.2. However, as discussed with the Court during the May 12, 2020 conference, Respondents are both moving to dismiss and opposing Petitioners’ motion for a preliminary injunction, in a consolidated submission, and will be filing a reply in support of the motion to dismiss on May 21, 2020. See ECF No. 17. Respondents proposed this consolidated briefing for the sake of efficiency for the parties and the Court. Nevertheless, if the Court considers this brief to be a single moving brief under Local Civil Rule 7.2 or a brief in support of a cross-motion under Local Civil Rule 7.1(h), Respondents respectfully request leave to file an overlength brief.
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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, 825 (2010) (alternations and internal quotations omitted). As the Supreme Court has recognized, finality of criminal judgments is “essential to the operation of our criminal justice system.” Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality opinion).
Once a district court has pronounced sentence and the sentence becomes final, the court has no inherent authority to reconsider or alter that sentence. Rather, a court may only modify a sentence pursuant to statutory authorization. See United States v. Addonizio, 442 U.S. 178, 189 n.16 (1979) (except by rule or statute, “[t]he beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it”); United States v. Washington, 549 F.3d 905, 916-17 (3d Cir. 2008) (“We also reject the argument that were we to hold that district courts lack the inherent power or jurisdiction to vacate sentences in a situation like this one, then the court would be without a remedy.”).
Consistent with this principle of finality, 18 U.S.C. § 3582(c) provides that a court “may not modify a term of imprisonment once it has been imposed,” except in three circumstances. First, under § 3582(c)(1)(A), a sentencing court can reduce a prison term upon a motion by the Director of BOP or the defendant under certain circumstance. Second, under § 3582(c)(1)(B), a sentencing court can reduce a prison term “to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” And third, under § 3582(c)(2), a sentencing court can reduce a prison sentence that was “based on” a retroactively lowered Sentencing Guidelines range.
Traditionally, “[f]ederal habeas corpus relief is available only ‘where the deprivation of rights is such that it necessarily impacts the fact or length of
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detention.’” Bonadonna v. United States, 446 F. App’x 407, 409 (3d Cir. 2011) (quoting Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002)). Accordingly, district courts in this Circuit routinely dismiss habeas petitions challenging conditions of confinement for lack of jurisdiction. See, e.g., Stanko v. Obama, 393 F. App’x 849, 851 (3d Cir. 2010) (holding that district court properly dismissed prisoner’s claims of cruel and unusual punishment and constitutional violations resulting from the seizure of his papers because those claims “clearly fall outside the realm of challenges brought in habeas”); Leslie v. Attorney Gen. of United States, 363 F. App’x 955, 958 (3d Cir. 2010) (“To the extent that Leslie attempts to challenge the conditions of his confinement, we agree with the District Court that this habeas corpus petition was not the proper vehicle to raise his claims.”); Johnson v. Warden Canaan USP, 699 F. App’x 125, 126 (3d Cir. 2017) (“The Court correctly reasoned that Johnson was challenging the conditions of his confinement rather than the execution of his sentence, and thus that habeas corpus was not an available remedy.”). That is not to say that the Supreme Court has expressly ruled out the possibility of challenging conditions of confinement via a habeas petition under 28 U.S.C. § 2241. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”). But the Supreme Court has not yet allowed it. See Muhammad v. Close, 540 U.S. 749, 751 n.1 (2004) (observing that the Court has never followed the speculative dicta in Preiser described above).
The Third Circuit has held that § 2241 is an appropriate mechanism for a federal prisoner to challenge the execution of his federal sentence. In Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 244 (3d Cir. 2005), the Third Circuit found a prisoner’s challenge to a BOP regulation curtailing the portion of his sentence that could be spent in community confinement to be cognizable under habeas as a
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challenge to the execution of his sentence. In doing so, the Third Circuit defined execution as meaning “to ‘put into effect’ or ‘carry out.’” Id. at 243 (quoting Webster's Third New Int’l Dictionary 794 (1993)). Subsequently, the Third Circuit distinguished Woodall and cabined the use of § 2241 to challenge the execution of a sentence as a more narrow jurisdictional grant. See Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012).
In Cardona, a federal inmate petitioned for habeas relief under § 2241, alleging that the BOP unlawfully referred him to the Special Management Unit as punishment for filing lawsuits. The district court dismissed the petition for lack of jurisdiction under § 2241. The Third Circuit affirmed and clarified that, while § 2241 extends jurisdiction to claims concerning the execution of a federal inmate’s sentence, Woodall’s holding turned on the particular fact that the challenged BOP conduct in that case “conflicted with express statements in the applicable sentencing judgments.” Cardona, 681 F.3d at 536. The Third Circuit declared: “In order to challenge the execution of his sentence under § 2241, Cardona would need to allege that BOP’s conduct was somehow inconsistent with a command or recommendation in the sentencing judgment.” Id. at 537.
Conversely, a “challenge to a garden-variety transfer is not cognizable in habeas.” Johnson v. Zickefoose, Civ. No. 12-2544 RMB, 2012 WL 5880344, at *7 (D.N.J. Nov. 20, 2012); (citing Ganim v. Federal Bureau of Prisons, 235 F. App’x 882, 2007 WL 1539942 (3d Cir. 2007)). Nor does a district court have jurisdiction to question a “transfer to increased security level . . . .” Id. (citing Zapata v. United States, 264 F. App’x 242 (3d Cir. 2008)). Nor can a district court consider habeas relief “seeking release from disciplinary segregation to general population.” Id. (citing Bronson v. Demming, 56 F. App’x 551, 553–54 (3d Cir. 2002)).
After all, “the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to
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secure release from illegal custody.” Preiser, 411 U.S. at 484. “[W]here an inmate seeks injunctive relief challenging the fact of his conviction or the duration of his sentence,” that claim “fall [s] within the core of federal habeas corpus.” Nelson v. Campbell, 541 U.S. 637, 643 (2004); see Preiser, 411 U.S. at 489. “By contrast, constitutional claims that merely challenge the conditions of a prisoner's confinement, whether the inmate seeks monetary or injunctive relief, fall outside of that core.” Nelson, 541 U.S. at 643. Federal prisoners wishing to pursue such claims must use other means, not habeas.16 See Cardona, 681 F.3d at 537 n.9.
To be clear, the Supreme Court has never ruled out the possibility of a federal inmate challenging his conditions of confinement via a habeas petition. See Preiser, 411 U.S. at 499 (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”). But neither the Supreme Court nor the Third Circuit has ever recognized or “delineated the circumstances that might qualify” for such an “exceptional” circumstance. See Reese v. Warden Philadelphia FDC, 904 F.3d 244, 246 n.2 (3d Cir. 2018) (discussing conditions of confinement for pretrial detainee); see also Medina v. Choate, 875 F.3d 1025, 1029 (10th Cir. 2017) (“If a federal prisoner is ever entitled to relief under § 2241 based on something that happened before trial, the circumstances are so rare that they have apparently not yet arisen.”) (emphasis added); see, e.g., Brown v. Marler, No. 20-1914, 2020 U.S. Dist. LEXIS 72328, at *8 (E.D. Pa. Apr. 24, 2020) (permitting “limited” jurisdictional discovery to determine “whether,” for the first
16 The “appropriate remedy for such constitutional violations, if proven, would be a judicially mandated change in conditions and/or an award of damages, but not release from confinement.” Davis v. Pa. Dep’t of Corr., No. 15-587, 2015 U.S. Dist. LEXIS 137712, at *8 (W.D. Pa. Sept. 11, 2015) (citing Murphy v. Brooks, 132 F.3d 43 (10th Cir. 1997) (table)), R&R adopted, 2015 U.S. Dist. LEXIS 136918 (Oct. 7, 2015); see also Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979).
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time ever, “‘extraordinary circumstances’” exist to “justify pretrial exercise of § 2241 jurisdiction”).
Furthermore, the theoretical possibility that an “exceptional circumstance” exists post-conviction inmate is even more remote when there is an “orderly” process in place for an inmate to obtain the requested relief. See Johnson v. Hoy, 227 U.S. 227 U.S. 245, 247 (1913) (“[T]he orderly course of a trial must be pursued and the usual remedies exhausted, even where the petitioner attacks on habeas corpus the constitutionality of the statute under which he was indicted[.]”) (cited by Reese); Moore v. DeYoung, 515 F.2d 437, 447 (3d Cir. 1975) (discussing in dicta the possibility that “delay, harassment, bad faith or other intentional activity” could preclude an orderly process) (cited by Reese).
In this case, Petitioners do not identify how BOP violated the terms of any of their court judgments in carrying out the execution of their sentence. Nor do any of the Petitioners allege that BOP violated any statute or regulation regarding the fact or duration of their sentence. Quite the contrary, BOP is considering (and granting) home confinement requests on an increasingly frequent basis to inmates suitable for such relief based on fact-specific and individualized determinations required by the regulations. Inmates are also at liberty at any time to file a compassionaterelease request under 18 U.S.C. § 3582(c)(1)(A) after they satisfy that provision’s exhaustion requirement. Thus, under Cardona, this Court lacks jurisdiction.
Indeed, the specific procedural circumstances of the named Petitioners proves that the established process for their requested relief is functioning properly. As noted above, Bogdan was expected to be released to home confinement on May 14, 2020. See Reiser Decl. ¶ 26 and Ex. 5. However, on May 13, 2020, the United States Probation Department in his release district notified FCI Fort Dix that Bogdan’s wife refused to allow him to release to her home. Id. and Ex. 6 (Probation Dep’t Denial Memo). Similarly, Wragg filed a request for compassionate release with
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Warden Ortiz, which was only denied because Wragg did not meet the necessary criteria for compassionate release. Id. ¶ 9 and Ex. 1. BOP has also concluded that Wragg is not a worthy candidate for home confinement because his recidivism risk score is too high. See id. ¶ 27 and Ex. 8. There is no jurisdictional basis to upend this legitimate, statutorily-created process or permit Petitioners to make an endrun around it. Cf. Raia, 954 F.3d at 597 (“Given BOP’s shared desire for a safe and healthy prison environment, we conclude that strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added—and critical— importance.”).
Moreover, Petitioners cannot demonstrate an exceptional circumstance because BOP is not delaying, harassing, or engaging in bad faith in order to prevent Petitioners from exercising the orderly process of seeking home confinement or compassionate release. As noted in the chart above, BOP is considering (and granting) home confinement requests on an increasingly frequent basis to inmates suitable for such relief based on fact-specific and individualized determinations. Rather, it is Petitioners who are seeking to re-litigate the orderly process by invoking habeas jurisdiction. There is nothing “exceptional” about that. And to entertain their request would, in at least some cases, require this Court to secondguess the considered judgment of coordinate courts denying some of the very relief sought here.
The limited availability of habeas jurisdiction reflects Congress’s deference to BOP in the administration of correctional institutions, as well as the reality that courts are “ill equipped to deal with the difficult and delicate problems of prison management.” Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989) (internal quotations omitted). The operation of an institution such as FCI Fort Dix “involves a wide range of social and economic considerations, which is an inordinately difficult undertaking that requires expertise, planning, and the commitment of
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resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner v. Safley, 482 U.S. 78, 84-85 (1987). Simply put, the federal courts are “out of the business of running jails.” Benjamin v. Jacobson, 172 F.3d 144, 182 (2d Cir. 1999) (discussing the PLRA) (en banc) (Calabresi, J., concurring); see also Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997) (noting that Congress enacted the PLRA “to oust the federal judiciary from day-to-day prison management”).
In an attempt to sidestep the jurisdictional bar to their claims under Cardona, Petitioners allege that they are challenging “the fact of their confinement,” not the conditions of their confinement. Petitioners’ Mov. Br. at 2, ECF No. 9-1. In other words, Petitioners claim that there are “no set of conditions” that “would be constitutionally sufficient” to continue Petitioners’ detention. Id. at 26 (internal quotations omitted) (emphasis added). However, as the court in Alvarez v. Larose noted in rejecting an identical argument, that is pure
semantics. “Plaintiffs’ claims would not exist but for their current conditions of
confinement . . . .” No. 20-782 (S.D. Cal. May 9, 2020), ECF No. 46 at 6 (emphasis in original).
Consistent with Third Circuit law, at least one district court has dismissed for lack of jurisdiction a COVID-19-related petition similar to the one brought in this case. See Livas v. Myers, No. 20-422, 2020 U.S. Dist. LEXIS 71323, *19-22 (W.D. La. Apr. 22, 2020) (declining to exercise jurisdiction over habeas petition challenging conditions related to COVID-19 or serve as a “serve as a de facto ‘super warden’”); see also Grinis v. Spaulding, No. 20-10738, 2020 U.S. Dist. LEXIS 81464, *5 (D. Mass. May 8, 2020) (“There is a substantial question whether the relief the petitioners seek,” which is release because of COVID-19, is properly sought by means of a habeas petition under § 2241.”).
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Petitioners also cannot manufacture habeas jurisdiction in this case by pointing to cases involving civil immigration detainees. See Petitioners’ Mov. Br. at 22-23 (citing immigration cases). Those cases are not controlling (or even persuasive) because those civil immigration detainees did not have the same statutory or regulatory avenues for relief. In this case, Petitioners can request home confinement through the CARES Act or make a compassionate-release request and then make a motion seeking that relief under § 3582(c)(1)(A) after satisfying that provision’s exhaustion requirement. These additional avenues of relief for Petitioners are dispositive on the issue of jurisdiction here.
Civil immigration cases are also premised on a different constitutional standard. Convicted criminals such as Petitioners have Eighth Amendment protections. By contrast, civil immigration detainees are protected by the Fifth Amendment and are “entitled to more considerate treatment than convicted prisoners.” Jeferson V.G. v. Decker, No. 20-3644, 2020 U.S. Dist. LEXIS 65905, at *15 n.5 (D.N.J. Apr. 15, 2020) (citing Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000)). The heightened constitutional rights afforded to civil immigration detainees persuades some courts to consider additional avenues for relief, which are not relevant here.
A district court in this Circuit recently characterized this dispositive constitutional distinction between civil immigration detainees and convicted criminals as follows:
[T]o apply [the reasoning of an opinion granting release from civil immigration detention under § 2241] to prisons and jails across the board in all criminal cases is a much different matter. Different interests must be balanced when a criminal defendant has been detained only after a finding that no condition or combination of conditions will assure the presence of the defendant and the safety of the community. The balancing is likewise different when a criminal defendant is serving a sentence.
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United States v. Henderson, 2020 WL 1891888, at *4 (M.D. Pa. Apr. 16, 2020). Thus, Petitioners’ reliance on civil immigration cases is misplaced.
In many respects, Petitioners’ claims hinge on Wilson v. Williams, No. 20794, 2020 U.S. Dist. LEXIS 70674 (N.D. Ohio Apr. 22, 2020). But that case bears no factual resemblance to this case. And the district court’s exercise of habeas jurisdiction in that case has been criticized and cannot be reconciled with controlling precedent in this Circuit.17 In Wilson, COVID-19 infections were described as “rampant among inmates and staff, and numerous inmates have passed away from complications from the virus.” Wilson v. Williams, No. 20-3447, 2020 U.S. App. LEXIS 14291, at *5 (6th Cir. May 4, 2020). There was also limited availability of testing. Wilson, 2020 U.S. Dist. LEXIS 70674, at *5. In sharp contrast to that situation, all of the inmates currently at FCI Fort Dix Camp have tested negative for COVID-19, and there are currently no inmates at the Low outside of quarantine that have tested positive for COVID-19. Moreover, to date, only one inmate at FCI Fort Dix has been hospitalized for COVID-19, and there have been no inmate deaths from COVID-19. Turner-Foster Decl. ¶ 27. FCI Fort Dix also has far more test kits (approximate 432 test with 250 more a week going forward) than the 50 test kits available at the facility in Wilson. Compare Turner-Foster Decl. ¶ 23 with Wilson, 2020 U.S. Dist. LEXIS 70674, *5. Thus, the Wilson case is not instructive.
Similarly, in Martinez-Brooks v. Easter, No. 20-569, 2020 U.S. Dist. LEXIS 83300 (D. Conn. May 12, 2020), the district court confronted a much different factual scenario than this case. There, the extent to which the warden had
17 See Livas, 2020 U.S. Dist. LEXIS 71323, *22 n.10. The Wilson court also conceded that it was having difficulty applying the “bright line rules” of habeas jurisdiction given the expedited nature and facts of the case. See Wilson, 2020 U.S. Dist. LEXIS 70674, at *13.
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“implemented adequate measures to control the COVID-19 outbreak at FCI Danbury and protect inmates [wa]s hotly disputed.” Id. at *12. Contrasting those facts, Petitioners in this case conceded during the parties’ May 12, 2020 conference that the facts are not largely disputed. Rather, the parties allegedly differ in their sense of urgency regarding these facts. Even more pertinent, as noted above, FCI Fort Dix has implemented the Action Plan and is using an entire team of medical professionals to diagnose, treat, and mitigate the spread of COVID-19. BOP has also established a quarantine unit at FCI Fort Dix, engaged in comprehensive testing and symptom checks, implemented constant, facility-wide cleaning, distributed personal protective equipment, and disseminated information on how to protect both inmates and staff from infection. See Turner-Foster Decl. ¶¶ 15-32; Sassaman Decl., passim. Thus, Martinez-Brooks does not assist Petitioners in this case.
Finally, because the Court lacks jurisdiction over the petition, there is no basis to grant “bail pending habeas.” A grant of bail pending review of a habeas petition is “an exceptional form of relief in a habeas corpus proceeding[.]” Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). It is available “only when” either (1) “the petitioner has raised substantial constitutional claims upon which he has a high probability of success” or (2) “extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Id. Neither circumstance applies here.
To qualify the first way, the inmate must come forward with “a clear case for habeas relief on the law and facts[.]” Lucas v. Hadden, 790 F.2d 365, 367 (3d Cir. 1986). As for the second, the exceptional circumstances must be immediate, concrete, and non-speculative, such as a petitioner being “gravely ill” and receiving “bail on the condition that he enter a hospital to seek necessary medical care.” Lucas v. Hadden, 790 F.2d 365, 367 (3d Cir. 1986). Moreover, courts will not find exceptional or extraordinary circumstances where other avenues for relief remain
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available. Id. at 367-68 (“the pendency of Lucas’s [postconviction] petition in a Pennsylvania court is an additional ground for finding that he has not established the existence of circumstances warranting his admission to bail”).
Here, there is no legal basis for the Court to exercise jurisdiction over the petition, and Petitioners have other avenues of possible relief available to them. Thus, Petitioners cannot satisfy either basis for bail pending a final determination of their habeas petition, which this Court should dismiss entirely in any event under Rule 12(b)(1) of the Federal Rules of Civil Procedure. II. Petitioners’ Rehabilitation Act Claims Should be Dismissed
Petitioners allege that they and all members of a sub-class of individuals suffer from disabilities, and that their rights are being violated under the Rehabilitation Act of 1973, 29 U.S.C. § 794. Petitioners do not state a claim upon which relief can be granted under this statute, and Petitions failed to exhaust their administrative remedies for these claims. Thus, under Fed. R. Civ. P. 12(b)(6), Petitioners’ Rehabilitation Act claims should be dismissed.
“To succeed under the Rehabilitation Act, a plaintiff must show: (1) that he has a disability; (2) that he is otherwise qualified for the benefit that has been denied; (3) that he has been denied the benefit solely by reason of his disability; and (4) that the benefit is part of a program or activity receiving Federal financial assistance.” Baxter v. Pennsylvania Dep’t of Corr., 661 F. App’x 754, 757 (3d Cir. 2016); see also Dahl v. Johnston, 598 F. App’x 818, 819–20 (3d Cir. 2015) (citing 42 U.S.C. § 12132 in an inmate case involving an ADA claim).18
18 Claims under the Rehabilitation Act and the Americans With Disabilities Act (“ADA”) are generally reviewed in the same manner and subject to the same standards. See Yeskey v. Pa. Dep’t of Correc., 118 F.3d 168, 170 (3d Cir. ) (“all the leading cases take up the statutes together”), aff’d Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).
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In this case, there are no allegations to support the denial of a benefit, which is the second element necessary to state a claim under the Rehabilitation Act. Petitioners do not allege that BOP denied Petitioners any benefit solely by reason of their alleged disabilities. Compare Furgess v. Pennsylvania Dep’t of Corr., 933 F.3d 285, 292 (3d Cir. 2019) (finding disability discrimination where a prison declined to provide a handicapped-accessible shower in the disciplinary unit where officials placed plaintiff); see also Docherty v. Cape May Cty., Civ. No. 15-8785 (RMB), 2017 WL 2819963, at *12 (D.N.J. June 29, 2017) (“Plaintiffs have not alleged that corrections officers permit other inmates to access medical treatment without delay. These facts do not support the conclusion that, solely by reason of their disability, Defendants discriminate against insulin-dependent inmates. Furthermore, no cause of action exists under the ADA to challenge the medical treatment a prisoner received.”).
To the extent Petitioners are alleging they were denied reasonable accommodations for their alleged disabilities, those allegations also fail on their face. Reasonable accommodations depend on “the individual circumstances of each case, and require[] a fact-specific, individualized analysis of the disabled individual’s circumstances and the accommodations that might allow him to” access the specific programs or services in question. K.N. v. Gloucester City Bd. of Educ., 379 F. Supp. 3d 334, 350 (D.N.J. 2019) (internal quotations omitted). Both the disabled person and the public entity are expected to engage in an interactive process to develop the specific accommodation necessary, and feasible, for the particular situation. See, e.g., Baxter v. Pennsylvania Dep't of Corr., 661 F. App’x 754, 757 (3d Cir. 2016) (finding no disability discrimination where the prison proposed an accommodation and plaintiff “said no to this offer and filed this civil action instead” of engaging in the interactive process).
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Moreover, a public agency may “resist modifications that entail a ‘fundamenta[l] alter[ation]’ of the States’ services and programs.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 603 (1999) (quoting 28 C.F.R. § 35.130(b)(7)). The intent of the Rehabilitation Act, as a remedial civil rights statute, is to create equality of opportunity for disabled persons, not to mandate preferential treatment. See Filar v. Bd. of Educ. of City of Chicago, 526 F.3d 1054, 1067 (7th Cir. 2008) (concluding that plaintiff’s “request would have amounted to preferential treatment, which the ADA does not require”); Kortyna v. Lafayette Coll., 47 F. Supp. 3d 225, 242–43 (E.D. Pa. 2014) (“‘The ADA mandates reasonable accommodation of people with disabilities in order to put them on an even playing field with the non-disabled; it does not authorize a preference for disabled people generally.’”) (quoting Felix v. N.Y.C. Transit Auth., 324 F.3d 102, 107 (2d Cir. 2003)).
In this case, Petitioners do not allege that they engaged in an interactive process with BOP. And even if Petitioners had engaged in such a process, which they did not, the accommodation Petitioners seek is not reasonable. For example, the modified living quarters proposed by Petitioners on a class-wide basis could potentially compromise BOP’s ability to manage COVID-19 with its limited resources or alter the safety and security of FCI Fort Dix or the community. The Rehabilitation Act does not permit individual Petitioners to effect broad-based, fundamental changes to BOP’s policies and practices.
Petitioners also do not allege any facts showing that BOP had any discriminatory animus because of their alleged disabilities, which is the third element necessary to plead a Rehabilitation Act claim. See Pet ¶ 161 (concluding that BOP is “intentionally” denying Petitioners “reasonable accommodations . . . necessary to protect them from COVID-19.”). Petitioners’ assertion of intent is entirely conclusory. The Court need not consider “legal conclusions” contained
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within a complaint, and “a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678.
Petitioners’ conclusory allegations of discriminatory animus are also implausible under Iqbal and Twombly. On their face, BOP’s actions are motivated by an intent to combat the spread of COVID-19, while at the same time fulfilling its duty to protect inmates and the public. Plaintiffs plead no facts to support their conclusion that the Government is intentionally discriminating against them based on their disabilities in violation of the Rehabilitation Act as part of implementing its Action Plan. See, e.g., Brown v. Pennsylvania Dep’t of Corr., 290 F. App’x 463, 467 (3d Cir. 2008) (“Brown has not alleged facts sufficient to show that the prison denied him access to mental health treatment ‘by reason of’ his alleged disabilities”); Jenkins v. Glover, Civ. No. 09-2145-FSH, 2009 WL 2391278, at *5-6 (D.N.J. July 31, 2009) (“Plaintiff has not alleged facts indicating that he was excluded from the work program based on his disability”).
The relief sought by Petitioners under the Rehabilitation Act is in many respects duplicative of the allegations Petitioners argue give rise to BOP’s violations of their constitutional rights. Petitioners’ constitutional claims rest on allegedly deficient precautions taken by BOP in the Action Plan to avoid the spread of COVID-19. Similarly, Petitioners’ claims under the Rehabilitation Act seek to remedy many of those same alleged deficiencies:
[S]eparate living spaces rather than high-capacity shared rooms and dorms with people in close proximity; free distribution of adequate cleaning supplies, including soap; free distribution of adequate personal protective equipment, including masks and gloves; staggered access to bathrooms, meals, and other shared resources; assignments of correctional staff that mitigates the possibility staff will transmit COVID-19, even asymptomatically, from one building to another; and adequate access to tests and information about risk.
Id. ¶ 162. Petitioners should not be permitted to avoid the jurisdictional bar to their
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constitutional claims by repackaging these same claims as violations of the Rehabilitation Act. Federal courts frequently conclude that civil rights actions and actions for declaratory relief must be dismissed and brought separately from petitions for habeas corpus. See Johnson, 2012 WL 5880344, at *8 and n.5 (habeas petitioner brought multiple civil rights complaints, including a putative claim under the Rehabilitation Act); Foster v. Albino, Civ. No. 09-1486-JBS, 2009 WL 1874073, at *1 (D.N.J. June 24, 2009) (“The Second Amended Petition (which is a § 1983 civil complaint) cannot be entertained in this habeas action: Petitioner should raise these claims in a separate civil matter, upon either pre-paying his filing fee or duly obtaining the required in forma pauperis status.”).
Finally, Petitioners did not exhaust their administrative remedies regarding any alleged violations of the Rehabilitation Act. Federal inmates are required to follow a two-part administrative process to exhaust remedies before proceeding on a Rehabilitation Act claim in federal court. See 28 C.F.R. § 39.170(d)(1)(ii); see also Elliott v. Wilson, Civ. No. 15-01908, 2017 WL 1185213, at *14 (D. Minn. Jan. 17, 2017), R&R adopted, Civ. No. 15-1908, 2017 WL 1180422 (D. Minn. Mar. 29, 2017); Bryant v. United States Bureau of Prisons, Civ. No. 11-0254, 2011 WL 13261983, at *4 (C.D. Cal. July 11, 2011). First, inmates have to follow the procedures set forth at 28 C.F.R. part 254. Once that is exhausted, if the inmate did not obtain satisfactory relief, the inmate must file an administrative complaint with the Director for Equal Employment Opportunity at the Department of Justice. See 28 C.F.R. § 39.170(d)(4). In this case, howeover, Petitioners do not allege that they satisfied this administrative exhaustion requirement by filing a claim with the appropriate BOP and Department of Justice officials, and the BOP has no records of any such claim. See Clark Decl. ¶ 5 and Exs. 1-3.
Thus, this Court should dismiss Petitioners’ Rehabilitation Act claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
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III. Alternatively, Petitioners’ Motion for a Preliminary Injunction Should be Denied Petitioners cannot satisfy the elements to meet the extraordinary standard
for injunctive relief for the multiple reasons set forth below. N.J. Retail, 669 F.3d at 385-86.
A. Petitioners Cannot Demonstrate a Reasonable Probability of Success on the Merits or Irreparable Harm Petitioner’s continued detention does not violate the Eighth Amendment to
the Constitution. There is no evidence that the Government is acting with a reckless disregard for Petitioners’ safety or deliberate indifference to his medical needs. To demonstrate deliberate indifference regarding medical care, an inmate must show: (1) that alleged deficiencies in medical care are objectively “sufficiently serious”; and (2) that government actors “have a sufficiently culpable state of mind.” Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020).
In the context of exposing inmates to risk of disease, a claim must be dismissed if it does not pose a threat that is so severe that it would be “contrary to current standards of decency for anyone to be so exposed.” Helling v. McKinney, 509 U.S. 25, 35 (1993). A plaintiff must also show that BOP “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 that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Stated differently, “neither negligence nor strict liability is the appropriate inquiry in prison-conditions cases.” Steading v. Thompson, 941 F.2d 498, 499-500 (7th Cir. 1991) (Easterbrook, J.).
In this case, there is no evidence that Respondents are acting with deliberate indifference. Petitioners do not allege that they are receiving inadequate medical care, and Petitioners cannot demonstrate that BOP is exposing them to a threat of
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disease so severe that it is contrary to current standards of decency. Since January 2020, in order to combat the spread of COVID-19 at its institutions, BOP has been coordinating with subject-matter experts at multiple organizations and agencies, including the CDC.19 As a result of these ongoing efforts, BOP implemented a multiphased operational Action Plan seeking to “mitigate the spread of COVID-19” among inmates and staff, continue effective operations of the federal prison system, and ensure that staff remain healthy and available for duty. Id.
Regarding implementation of the Action Plan, personnel at FCI Fort Dix are using an entire team of medical professionals to diagnose, treat, and mitigate the spread of COVID-19. BOP has also established a quarantine unit at FCI Fort Dix, engaged in comprehensive testing and symptom checks, purchased specialized cleaning products, distributed personal protective equipment, and disseminated information on how to protect both inmates and staff from infection. See TurnerFoster Decl. ¶¶ 15-32; Sassaman Decl. ¶¶ 7-17. Under these circumstances, there is no legal basis to conclude BOP is violating current standards of decency. As the Third Circuit stated in the context of a compassion release request, “the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread.” Raia, 2020 WL 1647922, at *2.
Accordingly, at least two district courts recently found that inmates could not demonstrate a reasonability of success in proving a constitutional violation as a result of COVID-19. Rather, BOP “made significant changes in operations in response to COVID-19.” Grinis, 2020 U.S. Dist. LEXIS 81464, *3-4 (“There is a
19 See Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp (last visited May 10, 2020).
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substantial question whether the relief the petitioners seek,” which is release because of COVID-19, is properly sought by means of a habeas petition under § 2241.”); Nellson, 2020 U.S. Dist. LEXIS 66971, at *17 (“Assuming that the objective component is met, and that prison officials know of the risk of COVID-19, plaintiff has not demonstrated that defendants have disregarded that risk.”).
Finally, recent opinions granting the release of immigration detainees are distinguishable. As noted above, those immigration cases are based on a different constitutional standard—the Fifth Amendment and not the Eighth Amendment, which is a different standard. Henderson, 2020 WL 1891888, at *4 (“Different interests must be balanced when a criminal defendant has been detained only after a finding that no condition or combination of conditions will assure the presence of the defendant and the safety of the community. The balancing is likewise different when a criminal defendant is serving a sentence.”). Thus, those cases ordering the release of detainees are distinguishable, and Petitioners’ cannot demonstrate a reasonable probability of success on the merits of their Eighth Amendment claims.
B. Moreover, Extraordinary Injunctive Relief Is Unwarranted Where Petitioners Failed to Exhaust Administratively An injunction is unwarranted (and the habeas petition should be dismissed)
because Petitioners failed to fully exhaust their administrative remedies before filing their petition in federal court. The Prison Litigation Reform Act requires an inmate filing a prison-conditions lawsuit to have exhausted all available administrative remedies. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”).
This mandatory exhaustion requirement applies to all suits regarding prison life, including inmates raising concerns over COVID-19. See Nellson v. Barnhart,
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No. 20-756, 2020 U.S. Dist. LEXIS 66971, at *13 (D. Colo. Apr. 16, 2020) (“The Court finds that plaintiff has failed to exhaust his administrative remedies before seeking judicial relief” regarding COVID-19.) (citing Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016)); see also Valentine v. Collier, No. 20-20207, 2020 U.S. App. LEXIS 12941, at *15 (5th Cir. Apr. 22, 2020) (per curium) (staying injunction because petitioners failed to exhaust administrative remedies).
There is no exception to this PLRA exhaustion requirement for special circumstances. See Ross, 136 S. Ct. at 1856-57 (2016) (“mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account”). In fact, the only “exception” to the exhaustion requirement is when the administrative remedy process is “unavailable.” Id. at 1858. In Ross, the Supreme Court outlined just three situations in which a prisoner can show that the administrative remedy process is “unavailable”:
(1) “when (despite what regulations 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. In this case, none of those three “exception” scenarios are relevant. First, the
process is not a “dead end.” As noted from the chart above, numerous inmates are being granted relief, just not Petitioners. Second, at least some of the Petitioners are highly sophisticated and can “discern” and have navigated the process for seeking relief. Third, there are no allegations in the petition that BOP has “thwarted” Petitioners from taking advantage of the grievance process. The
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established statutory and regulatory process for home confinement and compassionate-release requests is working. Petitioners just disagree with the answers they are getting to their requests, and they want another bite at the apple.20
C. Petitioners’ Request for Immediate Release is Barred by the PLRA, Overly Broad, and Procedurally Improper
Under the PLRA, a “prisoner release order” may only “be entered . . . by a three-judge court,” and then only if certain conditions have been met. 18 U.S.C. § 3626(a)(3). Congress broadly defined a prisoner release order 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 nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4); see Bowers v. City of Philadelphia, No. 06-3229, 2006 WL 2601604, at *7 (E.D. Pa. Sept. 8, 2006) (construing “prisoner release order” broadly to encompass an order addressing prison overcrowding).
Among other requirements, “no court shall enter a prisoner release order unless -- (i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable
20 To the extent Petitioners ultimately cite to any cases that excused this mandatory PLRA exhaustion requirement, they are likely to predate the Supreme Court’s analysis in Ross in 2016. Furthermore, even if the PLRA’s exhaustion requirement did not apply to the petition, which it does, and even if the Court considered the petition cognizable in habeas under 28 U.S.C. § 2241, which it should not, “a federal prisoner ordinarily may not bring a petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging the execution of his sentence, until he has exhausted all available administrative remedies.” Anderson v. Schultz, No. 10-3933 (RBK), 2011 U.S. Dist. LEXIS 51379, at *6 (D.N.J. May 12, 2011) (citing Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000)).
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amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3) (emphasis added). Stated another way, the PLRA “restrict[s] the equity jurisdiction of federal courts,” Gilmore v. People, 220 F.3d 987, 999 (9th Cir. 2000), and, “[b]y its terms . . . restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population,’” Brown v. Plata, 563 U.S. 493, 511 (2011) (quoting 18 U.S.C. § 3626(g)(4)). The PLRA’s “requirements ensure that the ‘last remedy’ of a population limit is not imposed ‘as a first step.’” Id. at 514 (quoting Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (D.C. Cir. 1988)) (internal quotation marks omitted). “The release of prisoners in large numbers . . . is a matter of undoubted, grave concern.” Id. at 501.
Even if Petitioners satisfied these procedural requirements, which they do not, “[t]he PLRA mandates that ‘[p]reliminary 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.’” Valentine v. Collier, No. 20-20207, 2020 U.S. App. LEXIS 12941, at *18 (5th Cir. Apr. 22, 2020) (quoting 18 U.S.C. § 3626(a)(2)). The PLRA also requires that “‘courts shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief . . . .’” Id. at *18-19 (quoting 18 U.S.C. § 3626(a)(2)).
The recent district court case Money v. Pritzker, -- F. Supp. 3d --, No. 20-cv2093, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020) is instructive here. The court concluded that the relief sought—even if reframed as a “process” for an “expedited, individualized review and relocation” of inmates, rather than as the ordering of mass release—was indeed a “prisoner release order” subject to the PLRA. Id. at *1314. The court therefore held that the PLRA prevented it from entering the relief requested. Id. The same is true here, and the PLRA prohibits this Court from
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ordering the release of Petitioners from FCI Fort Dix, whether by ordering directly, through a process of its own, or through a special master’s process.
In addition to these procedural bars under the PLRA, Petitioners’ requested relief is contrary to well-established principles of equity. “The function of a court is limited to determining whether a constitutional violation has occurred, and to fashioning a remedy that does no more and no less than correct that particular constitutional violation.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (citing Rhodes v. Chapman, 452 U.S. 337, 352 (1981); see also Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971)). “[I]t is axiomatic that the remedial power of a district court is coterminous with the scope of the constitutional violation found to exist.” Newman v. Alabama, 503 F.2d 1320, 1332-33 (5th Cir. 1974).
Lastly, Petitioners’ requested relief should be denied because it constitutes a mandatory injunction, which disrupts the status quo regarding Petitioners’ confinement. See N. Am. Soccer League, LLC v. United States Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018) (“Because mandatory injunctions disrupt the status quo, a party seeking one must meet a heightened legal standard by showing a clear or substantial likelihood of success on the merits.”) (quotations and citations omitted). Petitioners in this case cannot overcome this high threshold for a mandatory injunction considering the public interests at stake.
D. The Court Should Strike Petitioners’ Class Allegations Petitioners are purporting to represent (and seek immediate release for) a
class consisting of all current and future inmates “over the age of 50 or who experience medical conditions that make them vulnerable to COVID-19.” Pet. ¶ 135. But the proposed class fails on its face to satisfy the requirements of Rule 23(a) of the Federal Rules of Civil Procedure. Thus, there can be no preliminary injunctive relief for such a class, and the class allegations should be struck from the petition.
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See, e.g., Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp. 3d 610, 624 (E.D. Pa. 2015) (The Court may “strike class action allegations if class treatment on the face of the complaint leaves little doubt they are not viable.”) (citing Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 93 n.30 (3d Cir. 2011)).
Under Rule 23(a), one or more members of a class may sue 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.” Fed. R. Civ. P. 23(a). Here, Petitioners cannot satisfy any of these elements for class certification.
Habeas petitions are ordinarily handled on an individual basis, and “the permutations here are endless.” Money, 2020 WL 1820660, at *15 (denying class treatment for COVID-19 habeas petition). Petitioners in the proposed class have different preexisting medical conditions, different security classifications, and different placements (the Camp and the Low) within FCI Fort Dix. There are also inmates who have recovered from COVID-19, inmates who are currently quarantined, and inmates who have never displayed symptoms or contracted the illness. There would be no feasible way for the Court to decide the constitutionality of these inmates’ conditions of confinement without evaluating all of those different conditions. “Simply put, there is no way to decide which inmates should stay, and which inmates should go, without diving into an inmate-specific inquiry.” Id.
The reasoning of the court in Money is identical to basis for this District’s Standing Order 2020-10 pertaining to COVID-19 civil immigration petitions. In that standing order, Chief Judge Wolfson ordered that petitions “filed with multiple petitioners” shall be severed by the Clerk and opened into “individual actions with
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one named petitioner.” In issuing this standing order, Chief Judge Wolfson found that each petition raised “unique[]” issues because of different “underlying medical conditions.” Likewise, the members of Petitioners’ proposed class have unique issues and different underlying medical conditions. Thus, this Court should be guided by Standing Order 2020-10 and find that Petitioners’ proposed class is inappropriate and contrary to Rule 23(a).
E. The Balance of the Equities and the Public Interest Favor the Government Petitioners’ request for a preliminary injunction should also be denied
because the balance of the equities and the public interest favor the Government. “[T]he Supreme Court has repeatedly warned that “it is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’” Valentine, 2020 U.S. App. LEXIS 12941, at *15 (quoting Woodford v. Ngo, 548 U.S. 81, 94, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)).
Accordingly, numerous courts have either denied injunctions seeking immediate release because of COVID-19 or stayed injunctions on appeal. See id. (staying injunction releasing inmates based on COVID-19); see also Alvarez, No. 20782, ECF No. 46 at 10 (“Here, the Court could not issue injunctive relief without unfairly intruding on Defendants’ operation of the prison system and defying Congress’s clear policy determinations regarding challenges to prison conditions and prisoner release orders.”); Nellson, 2020 U.S. Dist. LEXIS 66971, at *17 (denying injunction because COVID-19 protocols were implemented by BOP).
In denying an injunction, these courts do not question “whether COVID-19 presents a danger to the inmates[.]” Swain v. Junior, -- F.3d --, 2020 WL 2161317, at *5 (11th Cir. May 5, 2020). But the more relevant question is “whether the plaintiffs have shown that they will suffer irreparable injuries that they would not
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otherwise suffer in the absence of an injunction.” Id. (citations omitted). Given BOP’s enormous good-faith efforts at FCI Fort Dix, “[n]othing in the record indicates that the defendants will abandon the current safety measures absent a preliminary injunction, especially since [BOP] implemented many of those measures before the plaintiffs even filed the complaint.” Id. Thus, the balance of the equities and the public interest favor Respondents, and Petitioners’ request for a preliminary injunction should be denied.
CONCLUSION
For the foregoing reasons, the Court should dismiss Petitioners’ petition for a writ of habeas corpus, in its entirety, for lack of jurisdiction. Additionally, the Court should dismiss Petitioners’ claims under the Rehabilitation Act for failure to state a claim. Alternatively, the Court should deny Petitioners’ motion for a preliminary injunction and, in doing so, strike the class allegations.21
Respectfully submitted, CRAIG CARPENITO United States Attorney

Dated: May 18, 2020

By: /s/ J. Andrew Ruymann J. ANDREW RUYMANN Chief, Civil Division MARK E. COYNE Chief, Appeals Division ELIZABETH A. PASCAL Deputy Chief, Civil Division JOHN F. BASIAK JR. JOHN T. STINSON Assistant U.S. Attorneys Attorneys for Respondents

21 If the Court denies Respondents’ motion to dismiss, Respondents respectfully request 14 days in which to file an answer to the petition.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTO CONCEPCION, individually and on behalf of others
similarly situated.
Petitioners,
V.
DAVID E. ORTIZ, Warden of the
Federal Correctional
Institution, Fort Dix and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons,
Respondents.

Civil Action No. 20-05496(RMB)

DECLARATION OF JAMES REISER

I, James Reiser, declare the following under 28 U.S.C.

§ 1746, and state that under penalty of perjury the following

is true and correct to the best of my knowledge and belief:

I.

PERSONAL BACKGROUND

1. I am currently employed by the Federal Bureau of

Prisons ('"BOP") of the United States Department of Justice, as

a Case Management Coordinator, at the Federal Correctional

Institution ("FCI"), Fort Dix, New Jersey.

2. The CMC's Office is dedicated to providing oversight

of case management activities within the institution. This office works directly with the unit teams, providing training

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ATTACHMENT 1

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Dear Warden Ortiz,
My name is Troy Benjamin Wragg and my register number is 67165-019. I am currently under your Wardenship at FCI Fort Dix West in Building 5812 115 SL. I am writing today to request Compassionate Release.
Given the worldwide pandemic that has halted operations around the globe and has killed thousands of people in the U.S. and even more abroad, I am hereby requesting to be released on the grounds of the Compassionate Release provisions of the First Step Act of 2018. The Coronavirus/COVID-19 has torn apart tens of thousands of lives in the United States alone, especially throughout New York and New Jersey, where Fort Dix is located .
I am in the BOP system as "Chronic Care" for three different conditions. Those conditions are: Epilepsy, Mental Health, and High Blood Pressure. Given I have a history of heart disease and hospitalizations for all three of these items, that is how I have been listed since my incarceration in the BOP starting November 9, 2018. All three of these issues are affected by the Coronavirus, given the fact that most cases of epilepsy, including mine, increase when the immune system is weaker and stress levels are elevated . Not only do I have severe grand-ma! seizures, I have broken bones during a seizure as my records will show at FDC Philadelphia, where I had a seizure so serious that I broke my wrist while in BOP custody due to not receiving a proper dosage of the medicine I needed . My blood pressure is constantly elevated and my mental health has suffered greatly, as you could imagine given this global pandemic.
Furthermore, I am much weaker than usual right now. I have gone five plus days without my primary seizure medicine called Keppra. I put in my order for my refill on Trulincs last Tuesday, March 17th, 2020. My order was not ready last Friday, March 20th , 2020 when I went. I sent a cop-out at this time to AW Operations given the severity of my condition. It was Dr. Housman who helped me get the issue resolved yesterday and I was able to pick up my medicine this morning. While I have my medicine now - this does not change the fact that I am very weak due to constant seizures over the last five days and that I am even more susceptible to getting ill, such as from the Coronavirus.
I have been a model inmate since arriving at Fort Dix. I have no shots. I teach two classes for Mr. Naylor (Business Management and Business Marketing) and I recently completed NRDAP with a 100%. In total , I have 10 items under my belt for programming and teaching in my short 17 months in the BOP. I have a home and job to go home to, as well. I have an incredible wife, Mrs. Megan Hallett, who is a teacher and has great healthcare that will help take care of all of my medical needs when I am home from top-flight doctors in our area in Maryland. My psychiatrist, my cardiologist, and my neurologists at home in Perryville, Maryland know my conditions very well and can assist me much better out there, then I can be taken care of in here. I am an excess cost to the system and I am a first time, non-violent offender who is here for a white-collar crime. I look forward to entering society with your help so that I can get the proper medical care I need at no burden to the United States government. I need your help to

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do this. I humbly ask you to grant my request for Compassionate Release under the provisions of the First Step Act.
I look forward to hearing your decision. I appreciate your consideration of this matter.
Sincerely,
Troy Benjamin Wragg 67165-019 FCI Fort Dix (West) 5812; 115; SL

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Wragg, Troy Benjamin Register Number: 67165-019 Unit 5812 (Q)
INMATE REQUEST TO STAFF RESPONSE
You requested a reduction in sentence (RIS) based on concerns about COVID-19. After careful consideration, your request is denied.
Title 18 of the United States Code, section 3582 (c) (1) (A), allows a sentencing court, on motion of the Director of the BOP, to reduce a term of imprisonment for extraordinary or compelling reasons. BOP Program Statement No. 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 (c) (1) (A) and 4205 (g), provides guidance on the types of circumstances that present extraordinary or compelling reasons, such as the inmate's terminal medical condition; debilitated medical condition; status as a "new law" elderly inmate, an elderly inmate with medical conditions, or an "other elderly inmate"; the death or incapacitation of the family member caregiver of the inmate's child; or the incapacitation of the inmate's spouse or registered partner. Your request has been evaluated consistent with this general guidance.
The BOP is taking extraordinary measures to contain the spread of COVID-19 and treat any affected inmates. We recognize that you, like all of us, have legitimate concerns and fears about the spread and effects of the virus. However, your concern about being potentially exposed to, or possibly contracting, COVID-19 does not currently warrant an early release from your sentence. Accordingly, your RIS request is denied at this time.
If you are not satisfied with this response to your request, you may commence an appeal of this decision via the administrative remedy process by submitting your concerns on the appropriate form (BP-9) within 20 days of the receipt of this response.
David E. Warden

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ATTACHMENT 2

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ATTACHMENT 3

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Attn : Prison Camp Warden / Case Managers 5756 HARTFORD & POINTVILLE RD JOINT BASE MDL, NJ 08640
April 15, 2020
To Whom It May Concern :
As the legal Power of Attorney for my brother, Michael W. Scronic (#79605054) , I am writing to formally request his immediate Compassionate Release from the Prison Camp at FCI/Fort Dix. As of th is evening , thirteen (13) inmates have been removed due to coronavirus . We know that the especially close quarters of bunkroom-style sleeping arrangements make the Prison Camp, especially, a breeding ground for this deadly and highly-contagious virus.
Michael suffered childhood asthma and serious allergies that required him to spend the first two years of his life in a highly-antiseptic setting. As an adult , Michael has suffered two bouts of cancer, each one requiring surgery at Memorial Sloane Kettering Hospital in NYC. As such , he is a high-risk candidate for a serious case of coronavirus , especially under the close-quarters living conditions of the Camp. There is a very high chance that he will fall seriously ill from the coronarvirus if he is forced to stay confined indoors with another 243 men , 13 of whom are confirmed sick, with many more likely contam inated. We know this virus spreads exponentially , so within a week it could easily infect every in mate there .
Given my brother's underlying medical conditions , we know that when he contracts the virus , it will be very serious .
This is a man who was convicted of securities fraud . He is also a diagnosed gambling addict, whose non-violent crime was directly tied to that addiction . He does not deserve the Death Sentence that it would be for him to remain incarcerated during this pandemic.
Michael also has an extremely low recid ivism index. He has been an exemplary prisoner, has taught math and computer programming classes to his fellow inmates , and ran an individual marathon (203 laps around the tra ck) to help get donations of books for the Prison Camp's

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library. He plays sports, minds his business, and is a contributing member of the Camp Community. Michael also has a young son , MJ, who has already suffered so much through this ordeal. Please don't let his father die in prison ; he is just eight years old.
Please consider my brother, Michael , for Compassionate Release . I am his sister, and upon his release he will come to live with me and my two children . I own my home in Brooklyn and work as an administrator for the NYC Department of Education ; I have a stable job and a good income and am able and willing to give him housing and food for as long as he needs. Additionally, given the current necessity for "remote learning" I am quite sure Michael will be able to find a job as a remote math tutor to kids whose parents are struggling to support their learning . With the money he could earn , he will be able to pay child support for his son and beg in paying retributions to the victims of his crime .
I beg you to have mercy on Michael and grant him immediate Compassionate Release ; it very likely will save his life.
Thank you in advance for your kind consideration of this request .
Sincerely ,
Tracey L. Scronic

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.
Danielle Mullins - Fwd: Request to the Prison Camp Warden for the Release of Michael W. Scronic (#79605054) to Home Confinement

From: FTD/Exec Assistant ~

To:

Mullins, Danielle

Date: 4/16/2020 1:07 PM

Subject: Fwd : Request to the Prison Camp Warden for the Release of Michael W. Scronic (#79605054) to Home
Confinement

> > > Tracey Scron ic
To Whom It May Concern :

/16/2020 1:36 AM > > >

As the legal Power of Attorney for my brother, Michael W. Scronic (#79605054) , I am writing to formally request his immediate release from the Prison Camp at FCI/Fort Dix to Home Confinement. As of this evening, thirteen (13) inmates have been removed due to coronavirus . We know that the especially close quarters of bunkroom-style sleeping arrangements make the Prison Camp , especially, a breeding ground for this deadly and highly-contagious virus.

Michael suffered childhood asthma and serious allergies that required him to spend the first two years of his life in a highly-antiseptic setting . As an adult, Michael has suffered two bouts of cancer, each one requiring surgery at Memorial Sloane Kettering Hospital in NYC. As such , he is a high-risk candidate for a serious case of coronavirus, especially under the closequarters living conditions of the Camp . There is a very high chance that he will fall seriously ill from the coronarvirus if he is forced to stay confined indoors with another 243 men , 13 of whom are confirmed sick, with many more likely contaminated . We know this virus spreads exponentially, so within a week it could easily infect every inmate there.

Given my brother's underlying medical conditions, we know that when he contracts the virus, it will be very serious .
I
This is a man who was convicted of securities fraud . He is also a diagnosed gambling addict, whose non-violent crime was directly tied to that addiction. He does not deserve the Death Sentence that it would be for him to remain incarcerated during this pandemic.

Michael also has an extremely low recidivism index. He has been an exemplary prisoner, has taught math and computer programming classes to his fellow inmates, and ran an individual marathon (203 laps around the track) to help get donations of books for the Prison Camp's library. He plays sports, minds his business, and is a contributing member of the Camp Community. Michael also has a young son , MJ, who has already suffered so much through this ordeal. Please don't let his father die in prison; he is just eight years old.

Please consider my brother, Michael , for immediate Release to Home Confinement. I am his sister, and upon his release he will come to live with me and my two children. I own my home

file: ///C:/Users/bop50398/AppData/Local/Temp/5/XPgrpwise/5E985879FTD_DOMN1FT... 4/22/2020

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 28 of 67 PageIDP: a1g0e120 of 2 in Brooklyn and work as an administrator for the NYC Department of Education; I have a stable job and a good income and am able and willing to give him housing and food for as long as he needs. I can ensure that he does not need to leave the confines of the house at all, if required . I beg you to have mercy on Michael and grant him Immediate Release to Home Confinement; it very likely will save his life. Thank you in advance for your kind consideration of this request. Sincerely, Tracey L. Scronic
file :///C:/Users/bop50398/AppData/Local/Temp/5/XPgrpwise/5E985 879FTD_DOMN 1FT... 4/22/2020

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ATTACHMENT 4

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ATTACHMENT 5

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Leonard P . Bogdan Jr. Reg . No.:
FCI Fort Di x P. O. Box 2000 Joi nt Base MDL, NJ 08640
Wa r de n David Or ti z Federal Correctional Institution P .O. Box 38 Jo int Base MDL , NJ 0 8 640 - 5433

July 22, 2019

Re : Petition for Compassionate Release/Reduction in Sentence
Leonard P. Bogdan Jr. # 07918-088
Date of Birth:

Dear War d e n,

Un der 18 U. S . C. §35 8 2(c)( 1 )(A), a sen t en ci n g court, on

mo ti on o f th e Director of th e Bureau

Pri sons, may r edu ce t he

t e r m of i mp r isonment of a n inmate sen tence d under th e

Comprehe n s i ve Crime Control Ac t of 1 9 8 4 .

The Bur eau uses 1 8 U.S.C. § 35 8 2(c)(1)(A) in pa rticularl y ex tr aord in a r y or compelling circums t a nce s wh ich could not reasonably have been f or eseen by the court a t the t ime of sent encing.

1 8 U. S .C. 35 8 2 was amended by the First S t ep Ac t of 2018 , Prog ram Statement 5050.50 went i nto effect on Janu a r y 17, 20 19 .

1

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Petitioner, Leonard P. Bo g dan Jr., i s a n infir med elderly fir s t time non-violent off ender that qualifies for comp assionate release pursuant to Prog ram Statement 5050.50. Specifically , Pe titioner falls under the category listed as "Elderly Inmates: with Medical Conditions." The follo win g reasons provi de support thereof.

Background

The United S tates Sentencing Commis s ion has conducted

an in-depth review of this topic (compassionate release),

including consideration of the Bureau of Prisons data documentin g

leng thy review of compassionate release applications and low

a p proval rates, as well as t wo reports issued by the De p artment

of Justice Office of the Ins p ector General that are critical of

the Bureau of Pri s on's (BOP) imp lementation of its comp a ssionate

release prog ram. See U.S. Department of Justice, Office of the

Inspector General, the Fe?eral Bureau of Prisons Compassionate

Release Program, I-2C13-006 (April 2013); U.S. Department of

Justice, Office of

Inspector General, the impact of the aging

inmate population on the Federal Bureau of Prisons, E-15-05 ( May

2015). In February 2016, the Commission held a private hearing

on compassionate release and received testimony from witnesses

and experts about the need to broaden the criteria for

2

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eligibilit y , to add guidance to the medical criteria, and to remove o ther admini s tra tive hurdles that limit the availability 6f c omp assi on a t e rele ase to otherwise eligib le defe n dants.

REQUESTS BY ELDERLY INMATES WITH MEDICAL CONDIT I ONS

Inmates who fit the followin g criteria:
* Age 65 and older
Petitioner's b irthda t e i s yea r s old.

making him 68

* Suffer from chronic or serious medical conditions related to
the aging process Pl ease refer to " medica l c ondit ion s of pe t iti.oner. "

* Experienced deteriorating mental or physical health that
substantially diminishes Petitioner's ability to function in a correctional facility.
Th e s t aff a t F ort Dix Federa l Corr e ctional Institution (FCI) have been neg ligent in provid ing appr opria te medica l attention a nd demonstrated an inabi lity or lack of willingness t o provide a safe , humane, effec tive an d an appropri a t e l y secure environment fo r a g ing inmates.

As far as ne g ligenc e in medical care, the nodule on th e

Thyroid was diagnosed in

first quarter of 20 17. Doctor So od,

Petitioner's primary h ea lth provider, h as r epeatedly voiced

concern that it could be cancerous. To that end, an

3

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Endocrinology consultation is necessary and t ime sensitive. Ho wever, a biopsy has not been conducted, and the appointments he requested on Febr u ary 13, 201 8 and Decemb er 21, .2018 have not occu rred.
Peti tioner suffers fro m a severe case of thor a cic and lumbar sco l iosis. Francis J . Pizzi,, MD, observed "Thi s is th e worst cas e of scoliosis I've seen , and I've be e n practicing medicine for a lon g tim e ." He s u gg ested th a t the BOP supply Petitioner wi th a therapeutic ma ttr ess and a n er g onomic chair. As of this date, Petitioner continues to u se ori g inal common compound ma tt ress issued t o him durin g th e summer of 20 13. This ne glig ence amoun t s to cruel and unusua l punishmen t.
The severe scoliosis has caused t he ri ght leg t o be l onger than the l eft leg . That impairs walking . During a p odi a tr y exam on Au g ust 8 , 201 8 , the Doc tor s u gg es t ed that Petitioner wear medical shoes wi th a lift t o balance his g ait. As of this da t e , the shoes have not been i ssued . This neg li g e n ce amounts t o cruel and unusua l punishment.
MEDICAL CONDITION OF PETITIONER
1. Th yroid : Poten t ial cancero u s nodul e, disorder responsible fo r rapid hear tbea t.
2. Hear t Disease: Run d l e branch block, Bi-f asci c ula r. 3. Scoli o sis : Signi fica nt spina l curva ture with c onvexity off to
the right. 4. Act i nic Keratoris: Re- occurrin g form of skin cancer.
4

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5. Gastrointestinal: Hiatal hernia - surgery complicated due to severe scoliosis.
6. Hypertension: Family history. 7. Hyperlipidemia: Family hi s tory. 8. Vitamin Deficiency: Vitamin D, loss of bone density. 9. Rody Mass Index: Actute, high.
* Conventional Treatment promises no substantial improvement to
their mental or physical condition

The long- term outlook for scoliosis is not promising.

Doctors who have tr eated Petition er are concerned harm to

internal

as the rib

shifts within the spinal

curvatt1re. Th e kidneys have moved out of place a nd th ere is a

danger that lungs will have reduced capacity. There is no

conventional treatment for scoliosis, so there is no substantial

improvement anticipated in peti tion er ' s ph ysica l condition.

* Have served at least 50% of sentence

Petitioner has served at least 50% of his sentence. According to

the BOP Sentencing Monitor Data Report, Petitioner's beginning computation

date is May 16, 2007, plus 112 days of prior credit time. Petitioner has

served over 12 years of imprisonment.

* The age at which the inmate committed the current offence

According to Presentence Investigation Report

the

current offense occurred in 1997 when the Petitioner was forty-

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 40 of 67 PageID: 1022
six (46) years old.
* Whether the inmate suffered from the$e medical condit i ons at
the time of sentencing The Petitioner bec ame aware of hi s scoli o sis in 1966
when he was f ifteen years old. Th e condition did not become severe unt il 201 1. Peti tion er was aware of h is condition of hyper t ension a nd h yper lip idemia as these ailments affected h is pare nt s and are in his f a mil y history. Hi s Thyroid Di sorder, Hear t Dis ease, Actinic Ke r a to sis, Gas tr oi nt es tin a l Hiatal Hernia a n d Vit a min D Deficiency r es ultin g in lo ss of bone density were diagnosed af t e r Petitioner was i ncarcera ted.
* Whether the inmate suffered from the medical conditions at the
time of sentnecing and whether the PSR mentions these conditions. The tim e aspe ct o f this q ue s tion is a n swe r ed above, and
th e PSR does not mention an y of these medical conditions. Care Level
Petitioner is Care Leve l 2 : Inmates who are stab l e outpatients, with chronic illn esses r equ iring clinical contact every thr ee mo nths.
6

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 41 of 67 PageID: 1023
MEDICAL JOURNAL
(June 1, 2017 throu gh February 15, 2019)

Date: 6-14-17

OUTSIDE MEDICAL VISIT Ech o S tre ss Tes t; Neil Roth stei n, MD : "Contraction of
cavity size" Stre ss Echocard iogram: Severe thoracic lumbar s colio sis.

7-7-17 Thyroid Ultrasound

8 - 22 -17 Me t with surge on about hi a t a l hernia.

9 -1-17 OUTSIDE MEDICAL VISIT, Robert Woods Johnson, bone density scan .

11- 8 -17 OUTSIDE MEDICAL VISIT, Debor a h Hospital. Endocrinolo gy consultation.

12-5 -17 Rlood Draw.

1-2-1 8 Follow-up evaluation, Dr. Sood, warning that thyroid nodule could be cancerous.

1- 3 -1 8 OUTSIDE MEDICAL VISIT, Robert Wood Johnson. Bone Density scan.

2 - 8 -1 8 Radiological procedure, CT scan ARD.

2 -1 3 -1 8 OUTSIDE MEDICAL VISIT, Debor ah Hospital. Endocrinolo gy consultation.
2-15-1 8 Pu l monology exam evaluation

2-16-18 Thyroid ultrasound. 2-22-18 Blood draw

2-26-18 OUTSIDE MEDICAL VISIT, Robert Woods Johnson. Pulmonolo gy test.
4-17-1 8 Rlood draw, 8 vial s , urinalysis.

5-15-18 Blood draw, 7 vials.

6-26-18 General Surgery Follow-up evaluation Result: Surgery Placed under consideration.

8-8-18 Podia try Exam. Doctor recommended medical shoes to

ba l ance

gait .

8 -15-1 8 Dental Check-up

7

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 42 of 67 PageID: 1024

11-1 3-1 8 Rlood draw.

12-19-1 8 Meeting with Doctor Sood.

Dr. Soo d

expressed concern about lack of endocrine lo g y med iu11

care. Repeat his concerns that thyroid nodule may h a ve

cancer. Need endocrinology follow-up exam, doctor must

oroer bioo sy. Petitioner requested podiatry follow - up

and eye exam.

MEDICATIONS (As of 2-5-19)

Acetaminophen
Aspirin Atorvastatin Omeprazole Metoprolol Ta rtrate
Lisonopril Hydrochlorothiazide Fluorouracil Calcium Carbonate Duloxetine HCL Delayed Rel. Alenc1ronate

325 mg 81 mg 40 mg 20 mg
50 mg 10 mg 12.5 mg 5% 600 mg 30 mg 70 mg

PENDING OUTSIDE MEDICAL VISITS

Requested:
11- 08 -17 Outside RAD 04-1 8 -1 8 Endocrinology Exam 12-12-i8 Endocrinology Exam

Release Plans
Upon release, Petitioner intends to join his wife in retirement. He plans to be reunited with his family and reside in Valley Head, West Virginia. Petitioner will draw from Social Security and receive medical benefits from Medicare.

8

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 43 of 67 PageID: 1025

Petitioner has no criminal history, no unresolved

det aine rs a n d coo pe ratin g with the

department duri n g

pre - tri a l detention. He does not a ntici pa t e any p ro b le ms durin g

hi s thr ee year supervised r elease obligation.

CONCLUSION

Pe tition er qua lifi es for consideration und er th e revi se d amendment of po licy s t ate men t 5050.50. The ame ndmen t revi ses th e Bureau ' s g uidance on what s hould be considered " extraordinary anc'I compellin g " circum s tance s which coul d not have r easo n ab ly have been foreseen by th e court at the ti me of sentencing. The specific cat egory tha t app li es to the Petitioner is " Elderl y Inm a t es wi th Med ical Conditions."

" El de rl y Inmates with Med ic al Conditions" app li es if

th e de f e nd an t is at leas t 65 years old. The Petitioner's

birthday i s

mak ing him 68 yea rs old. Pe tition e r

is suf ferin g from " s i g nificant s colio sis with convexity off to

the right."

Chronic long -standing scoliosis is a serious deterioration in phy sical health because of the a g ing process. A

serious deterioration in physical health becaus e of the aging

process i s a s ti p ul a tion

the elderly inmate category.

9

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 44 of 67 PageID: 1026
In May, 201S, the Department of Justice's Office of the Inspector General (OIG) released a report on the BOP's implementation of the compassionate release program provision related to elderly inmates. The report found aging inmates make up a disproportionate share of the inmate population, are more costly to incarcerate (primarily due to medical needs), engage in less misconduct while in prison, and have a lower rate of rearrest once released than their younger counterparts.
Petitioner, Leonard P. Ro gdan Jr., is a first time, nonviolent offender. his current custody classification score is below zero. His chronic medical issues are considered "extraordinary and compelling reasons under Policy Statement SOSO.SO. The Petitioner is a suitable candidate for compassionate release.
Respectfully submitted,
Gf \0QafLJ-
Leonard P. Rogrlan Jr. Reg. No. 07918-0 88 FCI Fort Dix P.O. Box 2000 Joint Base MDL, NJ 08640
10

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 45 of 67 PageID: 1027
BOGDAN , Leonard P . Jr. Register No. 07918-088 Unit: 5841
INMATE REQUEST TO STAFF RESPONSE
This is in response to your request to a Staff Member dated July 22 , 2019, in which you request a Reduction in Sentence (RIS) in accordance with Program Statement 5050.50. Specifically , you request a Compassionate Release as an "Elderly Inmate with Medical Conditions."
In accordance with Program Statement 5050 . 50, Compassionate Release/Reduction in Sentence , Procedures for Implementation, 18 U. S. C. 3582 (c) (1) (A) and 4205 (g), an inmate may initiate a request for consideration only when there are particul arly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing . In order to meet the criteria for "Elderly Inmates with Medica l Conditions , " an inmate must be 65 years of age, suffer from chronic or serious medical conditions related to the aging process , experience deteriorating physical or mental health that substantially diminishes their ability to function in a correctional setting , conventional treatment promises no substantial improvement , and the inmate must have served at least 50 % of the sentence imposed .
Records indicate you have served 41 . 8% of your sentence. Theref ore , you do not meet the time served requirements to be considered for a Compassionate Release as an "Elderly Offender with Medical Conditions. " Accordingly , your request for a compassionate release is denied .
If you are dissatisfied with this response, you may appeal the decision through the Admini strative Remedy process. Your appeal must be received in the Northeast Regional Office , U. S . Customs House , 2nct and Chestnut Street , Philadelphia , PA 19106 , within 20 calendar days of the date of this response .

David E. Warden

Date 1 1

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 46 of 67 PageID: 1028
ATTACHMENT 6

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 47 of 67 PageID: 1029

FTDUG 535.03 *

INMATE PROFILE

*

05-13-2020

PAGE 001

07:42:32

07918-088

REG

REGNO: 07918-088

FUNCTION: PRT DOB/AGE.:

/ 68

NAME.: BOGDAN, LEONARD P JR

R/S/ETH.: W/M/O

WALSH: NO

RSP..: FTD-FORT DIX FCI

MILEAGE.: 307 MILES

PHONE: 609-723-1100

FAX: 609-724-7557

PROJ REL METHOD: GOOD CONDUCT TIME RELEASE

FBI NO..:

PROJ REL DATE..: 08-17-2032

INS NO..:

PAR ELIG DATE..: N/A

SSN.....:

PAR HEAR DATE..:

PSYCH: NO

DETAINER: NO

CMC..: NO

OFFN/CHG RMKS: CONSP COMMIT MAIL FRAUD;MONEY LAUNDER

OFFN/CHG RMKS: 05-14090-CR-MARTINEZ: 360 MTHS, 3 YRS SRT

FACL CATEGORY - - - - - CURRENT ASSIGNMENT - - - - - - EFF DATE TIME

FTD ADM-REL A-DES

DESIGNATED, AT ASSIGNED FACIL 03-15-2019 1253

FTD CARE LEVEL CARE1

HEALTHY OR SIMPLE CHRONIC CARE 07-16-2007 0630

FTD CARE LEVEL CARE1-MH CARE1-MENTAL HEALTH

06-30-2010 1047

FTD COR COUNSL 5841 A-Z L. KWARTIN X-6605

03-15-2019 1253

FTD CASE MGT CV-COM REF COVID COMMUNITY REFERRAL

05-06-2020 1025

FTD CASE MGT DEPEND N DEPENDENTS UNDER 21 - NO

05-03-2018 0810

FTD CASE MGT PHOTO ID Y PHOTO ID - YES

05-03-2018 0810

FTD CASE MGT RPP NEEDS RELEASE PREP PGM NEEDS

10-30-2007 0628

FTD CASE MGT VET P/S N PARENT/SPOUSE VETERAN - NO

05-03-2018 0810

FTD CASE MGT VETERAN N VETERAN - NO

05-03-2018 0810

FTD CASE MGT VWP AUTO VICTIM/WITNESS PGM AUTO UPDATE 06-27-2008 0701

FTD CASE MGT V94 COA913 V94 CURR OTHER ON/AFTER 91394 10-30-2007 0642

FTD CASE MGT WA NO HIST NO WALSH ACT OFFENSE HISTORY 10-31-2007 0750

FTD COMM CORR INST TRANS INSTITUTION TRANSFER

05-14-2020 1659

FTD CASEWORKER 5841 A-K K. BULLOCK X-6607

01-27-2020 0658

FTD CUSTODY IN

IN CUSTODY

05-24-2007 1047

FTD DRUG PGMS DRG I NONE NO DRUG INTERVIEW REQUIRED

10-31-2007 0739

FTD DESIG/SENT LIMA

TEAM LIMA

06-07-2007 0814

FTD DESTNATION CBR 3VV HC HOME CONFINEMENT FOR 3VV

05-14-2020 1659

FTD EDUCATION W 7 HABITS 7 HABITS - WEST

01-27-2020 0001

FTD EDUC INFO ESL HAS ENGLISH PROFICIENT

11-01-2007 0001

FTD EDUC INFO GED HAS COMPLETED GED OR HS DIPLOMA 11-01-2007 0001

FTD FIN RESP PART

FINANC RESP-PARTICIPATES

06-19-2013 1112

FTD FIRST STEP FTC ELIG FTC-ELIGIBLE - REVIEWED

11-27-2019 1247

FTD FIRST STEP R-MIN

MINIMUM RISK RECIDIVISM LEVEL 11-27-2019 1247

FTD LEVEL

LOW

SECURITY CLASSIFICATION LOW 05-13-2013 0736

FTD MED DY ST LOWER BUNK LOWER BUNK REQUIRED

11-07-2007 1441

FTD MED DY ST PAPER

LEGACY PAPER MEDICAL RECORD 12-04-2018 0946

FTD MED DY ST REG DUTY NO MEDICAL RESTR--REGULAR DUTY 05-23-2013 1328

FTD MED DY ST YES F/S CLEARED FOR FOOD SERVICE

05-23-2013 1329

FTD PGM REVIEW OCT

OCTOBER PROGRAM REVIEW

10-13-2020 0652

FTD QUARTERS W02-042L HOUSE W/RANGE 02/BED 042L

03-15-2019 1253

FTD RELIGION JEWISH

JEWISH

02-01-2012 1152

FTD UNIT

UNIT 6

R. BRINSON X-6685

03-15-2019 1253

FTD WAITNG LST ANGER MGT ANGER MGT CLASS

09-26-2019 0821

FTD WAITNG LST CRIM THKIN CRIMINAL THINKING ERRORS

09-26-2019 0821

FTD WAITNG LST EMOTIONAL EMOTIONAL SELF REGULATION

09-26-2019 0822

FTD WAITNG LST J-ADMINSER JOURNEYMEN-ADMIN SERV APPRNTCS 09-05-2017 1002

G0017 G0002

WARNING : NOTIFICATIONS ARE REQUIRED PER P.S. 1490.06 MORE PAGES TO FOLLOW . . .

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FTDUG 535.03 *

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05-13-2020

PAGE 002 OF 002

07:42:32

07918-088

REG

REGNO: 07918-088

FUNCTION: PRT DOB/AGE.: 07-15-1951 / 68

NAME.: BOGDAN, LEONARD P JR

R/S/ETH.: W/M/O

WALSH: NO

RSP..: FTD-FORT DIX FCI

MILEAGE.: 307 MILES

PHONE: 609-723-1100

FAX: 609-724-7557

FACL CATEGORY - - - - - CURRENT ASSIGNMENT - - - - - - EFF DATE TIME

FTD WAITNG LST PRIOR

PRIOR UNICOR EXPERIENCE

09-04-2013 1243

FTD WRK DETAIL TUTOR W EDUCATION TUTOR - FCI WEST

03-15-2019 1253

FTD WASPB

PAR PIOP PARENTING INSIDE OUT PART

02-03-2020 0001

G0017 G0000

WARNING : NOTIFICATIONS ARE REQUIRED PER P.S. 1490.06 TRANSACTION SUCCESSFULLY COMPLETED

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 49 of 67 PageID: 1031
ATTACHMENT 7

Case 1:20-cv-05496-RMB Document 28-2 Filed 05/18/20 Page 50 of 67 PageID: 1032
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF WEST VIRGINIA
PROBATION OFFICE

JON WRIGHT
CHIEF PROBATION OFFICER
217 W. KING ST., RM 310 MARTINSBURG, WV 25401
304-267-0778

May 13, 2020

320 W. PIKE ST., SUITE 110 CLARKSBURG 26301 304-624-5504
PO BOX 127 ELKINS 26241 304-636-7277
PO BOX 248 WHEELING 26003
304-232-8474
PLEASE REPLY TO:
Elkins

VIA EMAIL

Kevin M. Bullock, Sr. Case Manager Correctional Treatment Specialist Bureau of Prisons FCI Fort Dix

RE: BOGDAN, Leonard P., JR. Register Number: 07918-088

Dear Case Manager Bullock:
This office has received correspondence from you indicating that the above-listed offender has requested for relocation to the Northern District of West Virginia.
The undersigned officer has reviewed the relocation request, made contact with the parties involved, and was advised by the offender’s wife that she would not permit the offender to reside with her. As such, the offender has no identifiable ties to the Northern District of West Virginia and his relocation request is denied.
Should your office have any questions or concerns, please feel free to contact the undersigned at 304-218-0667.
Sincerely,
Matthew Bennett
Matthew Bennett U. S. Probation Officer

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ATTACHMENT 8

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FTDUG

*

PUBLIC INFORMATION

*

05-04-2020

PAGE 001

*

INMATE DATA

*

14:32:00

AS OF 05-04-2020

REGNO..: 67165-019 NAME: WRAGG, TROY BENJAMIN

RESP OF: FTD PHONE..: 609-723-1100
PROJ REL MT: GOOD CONDUCT TIME RELEASE PROJ REL DT: 08-07-2037

FAX: 609-724-7557 RACE/SEX...: WHITE / MALE AGE: 38 PAR ELIG DT: N/A PAR HEAR DT:

G0002

MORE PAGES TO FOLLOW . . .

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FTDUG

*

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*

05-04-2020

PAGE 002

*

INMATE DATA

*

14:32:00

AS OF 05-04-2020

REGNO..: 67165-019 NAME: WRAGG, TROY BENJAMIN

RESP OF: FTD PHONE..: 609-723-1100 FAX: 609-724-7557 HOME DETENTION ELIGIBILITY DATE: 02-07-2037

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S CURRENT COMMITMENT. THE INMATE IS PROJECTED FOR RELEASE: 08-07-2037 VIA GCT REL

----------------------CURRENT JUDGMENT/WARRANT NO: 010 ------------------------

COURT OF JURISDICTION...........: PENNSYLVANIA, EASTERN DISTRICT DOCKET NUMBER...................: DPAE2:15CR000398-001 JUDGE...........................: SLOMSKY DATE SENTENCED/PROBATION IMPOSED: 08-20-2019 DATE COMMITTED..................: 09-04-2019 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $1,000.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $54,531,488.57

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 153

18:286,371 FRAUD, OTHER

OFF/CHG: 18:371 CONSPIRACY TO COMMITT WIRE FRAUD(CT1) 18:1343;18:2 WIRE

FRAUD AND AIDING AND ABETTING (CT2-8) 18:371 CONSPIRACY TO

ENGAGE IN SECURITIES FRAUD(CT9)15:78J(B); 17 C.F.R. 240.10-B-5

18:2 SECURITIES FRAUD AND AIDING AND ABETTING(CT10)

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 144 MONTHS

TERM OF SUPERVISION............:

5 YEARS

DATE OF OFFENSE................: 04-30-2010

----------------------CURRENT JUDGMENT/WARRANT NO: 020 ------------------------

COURT OF JURISDICTION...........: PENNSYLVANIA, EASTERN DISTRICT DOCKET NUMBER...................: DPAE2:18CR000465-001 JUDGE...........................: SLOMSKY DATE SENTENCED/PROBATION IMPOSED: 08-20-2019 DATE COMMITTED..................: 09-04-2019 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

G0002

MORE PAGES TO FOLLOW . . .

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FTDUG

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*

INMATE DATA

*

14:32:00

AS OF 05-04-2020

REGNO..: 67165-019 NAME: WRAGG, TROY BENJAMIN

RESP OF: FTD PHONE..: 609-723-1100

FAX: 609-724-7557

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $100.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $104,750.00

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 820

COMMUNICATIONS ACT

OFF/CHG: 18:1343 WIRE FRAUD

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 120 MONTHS

TERM OF SUPERVISION............:

3 YEARS

RELATIONSHIP OF THIS OBLIGATION

TO OTHERS FOR THE OFFENDER....: CS W 010/010

DATE OF OFFENSE................: 12-30-2017

-------------------------CURRENT COMPUTATION NO: 010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 10-24-2019 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 10-24-2019 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN CURRENT COMPUTATION 010: 010 010, 020 010

DATE COMPUTATION BEGAN..........: 08-20-2019

AGGREGATED SENTENCE PROCEDURE...: AGGREGATE GROUP 800 PLRA

TOTAL TERM IN EFFECT............: 264 MONTHS

TOTAL TERM IN EFFECT CONVERTED..: 22 YEARS

AGGREGATED TERM OF SUPERVISION..:

5 YEARS

EARLIEST DATE OF OFFENSE........: 04-30-2010

JAIL CREDIT.....................:

FROM DATE 09-03-2015 11-09-2018

THRU DATE 09-03-2015 08-19-2019

G0002

MORE PAGES TO FOLLOW . . .

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FTDUG

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INMATE DATA

*

14:32:00

AS OF 05-04-2020

REGNO..: 67165-019 NAME: WRAGG, TROY BENJAMIN

RESP OF: FTD

PHONE..: 609-723-1100 FAX: 609-724-7557

TOTAL PRIOR CREDIT TIME.........: 285

TOTAL INOPERATIVE TIME..........: 0

TOTAL GCT EARNED AND PROJECTED..: 1188

TOTAL GCT EARNED................: 54

STATUTORY RELEASE DATE PROJECTED: 08-07-2037

EXPIRATION FULL TERM DATE.......: 11-07-2040

TIME SERVED.....................:

1 YEARS

5 MONTHS

PERCENTAGE OF FULL TERM SERVED..: 6.7

PERCENT OF STATUTORY TERM SERVED: 7.9

25 DAYS

PROJECTED SATISFACTION DATE.....: 08-07-2037 PROJECTED SATISFACTION METHOD...: GCT REL

G0000

TRANSACTION SUCCESSFULLY COMPLETED

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ATTACHMENT 9

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FTDUG 535.03 *

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05-04-2020

PAGE 001 OF 001

14:31:17

67165-019

REG

REGNO: 67165-019

FUNCTION: PRT DOB/AGE.:

/ 38

NAME.: WRAGG, TROY BENJAMIN

R/S/ETH.: W/M/O

WALSH: NO

RSP..: FTD-FORT DIX FCI

MILEAGE.: 70 MILES

PHONE: 609-723-1100

FAX: 609-724-7557

PROJ REL METHOD: GOOD CONDUCT TIME RELEASE

FBI NO..:

PROJ REL DATE..: 08-07-2037

INS NO..:

PAR ELIG DATE..: N/A

SSN.....:

PAR HEAR DATE..:

PSYCH: NO

DETAINER: NO

CMC..: YES

OFFN/CHG RMKS: DPAE2:15CR000398-001 CNSP TO CMMT WIRE/SECURITIES FRAUD, A&A

OFFN/CHG RMKS: DPAE2:18CR000465-001 WIRE FRAUD SENT:264MOS & 5YRS SRT

FACL CATEGORY - - - - - CURRENT ASSIGNMENT - - - - - - EFF DATE TIME

FTD ADM-REL A-DES

DESIGNATED, AT ASSIGNED FACIL 09-04-2019 0933

FTD CALLOUTS HOSP MLP4 MLP 4

05-04-2020 0800

FTD CARE LEVEL CARE2

STABLE, CHRONIC CARE

11-13-2018 0722

FTD CARE LEVEL CARE2-MH CARE2-MENTAL HEALTH

03-15-2019 1121

FTD COR COUNSL 5812 L-Z E. WATSON, X-6619

09-04-2019 0933

FTD CASE MGT BIR CERT N BIRTH CERTIFICATE - NO

09-11-2019 1513

FTD CASE MGT DEPEND N DEPENDENTS UNDER 21 - NO

09-11-2019 1513

FTD CASE MGT PHOTO ID Y PHOTO ID - YES

09-11-2019 1513

FTD CASE MGT RPP NEEDS RELEASE PREP PGM NEEDS

11-08-2019 1343

FTD CASE MGT SSN CARD N SOCIAL SECURITY CARD - NO

09-11-2019 1513

FTD CASE MGT VET P/S N PARENT/SPOUSE VETERAN - NO

09-11-2019 1513

FTD CASE MGT VETERAN N VETERAN - NO

09-11-2019 1513

FTD CASE MGT VWP AUTO VICTIM/WITNESS PGM AUTO UPDATE 08-23-2019 0645

FTD CASE MGT V94 COA913 V94 CURR OTHER ON/AFTER 91394 09-14-2019 1353

FTD CASE MGT WA NO HIST NO WALSH ACT OFFENSE HISTORY 08-26-2019 1155

FTD CASEWORKER 5812 L-Z S. WHITE, X-6624

09-04-2019 0933

FTD CUSTODY IN

IN CUSTODY

11-09-2018 1602

FTD DRUG PGMS DAP REFER DRUG ABUSE PROGRAM REFER

09-09-2019 0921

FTD DRUG PGMS ED COMP DRUG EDUCATION COMPLETE

12-12-2019 1210

FTD DESIG/SENT ECHO

TEAM ECHO

08-26-2019 1155

FTD EDUC INFO ESL HAS ENGLISH PROFICIENT

09-21-2019 1010

FTD EDUC INFO GED HAS COMPLETED GED OR HS DIPLOMA 09-21-2019 1010

FTD FIN RESP PART

FINANC RESP-PARTICIPATES

09-06-2019 1227

FTD FIRST STEP FTC ELIG FTC-ELIGIBLE - REVIEWED

12-06-2019 0827

FTD FIRST STEP R-LW

LOW RISK RECIDIVISM LEVEL

12-06-2019 0833

FTD LEVEL

LOW

SECURITY CLASSIFICATION LOW 08-26-2019 1203

FTD MED DY ST NO PAPER NO PAPER MEDICAL RECORD

09-05-2019 1009

FTD MED DY ST REG DUTY NO MEDICAL RESTR--REGULAR DUTY 11-26-2018 1349

FTD MED DY ST YES F/S CLEARED FOR FOOD SERVICE

11-26-2018 1349

FTD PGM REVIEW AUG

AUGUST PROGRAM REVIEW

08-18-2020 0854

FTD QUARTERS Q01-155L HOUSE Q/RANGE 01/BED 155L

09-27-2019 1225

FTD RELIGION PROTESTANT PROTESTANT

11-13-2018 0945

FTD STATUS

CALL PSYCH IF INMATE PLACED IN SHU

03-06-2020 1310

FTD UNIT

UNIT 5

K BYRD, E-6618

09-04-2019 0933

FTD WRK DETAIL A&O CMP W A&O COMPLT-PND WRK ASSIGN WEST 09-05-2019 0738

G0017 G0000

WARNING : NOTIFICATIONS ARE REQUIRED PER P.S. 1490.06 TRANSACTION SUCCESSFULLY COMPLETED

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ATTACHMENT 10

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FTDUG

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REGNO..: 72850-067 NAME: SOTO-CONCEPCION, ELIEZER

RESP OF: FTD PHONE..: 609-723-1100
PROJ REL MT: GOOD CONDUCT TIME RELEASE PROJ REL DT: 09-05-2025

FAX: 609-724-7557 RACE/SEX...: WHITE / MALE AGE: 38 PAR ELIG DT: N/A PAR HEAR DT:

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RESP OF: FTD PHONE..: 609-723-1100 FAX: 609-724-7557 HOME DETENTION ELIGIBILITY DATE: 03-05-2025

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S CURRENT COMMITMENT. THE INMATE IS PROJECTED FOR RELEASE: 09-05-2025 VIA GCT REL

----------------------CURRENT JUDGMENT/WARRANT NO: 010 ------------------------

COURT OF JURISDICTION...........: PENNSYLVANIA, MIDDLE DISTRICT DOCKET NUMBER...................: 1:15CR00181-005 JUDGE...........................: JONES DATE SENTENCED/PROBATION IMPOSED: 11-21-2017 DATE COMMITTED..................: 12-12-2017 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $100.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $00.00

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 409

21:841 & 846 SEC 841-851

OFF/CHG: 21:846 CONSPIRACY TO DISTRIBUTE AND POSSESS WITH INTENT TO

DISTRIBUTE AT LEAST 1 KILOGRAM OF HEROIN, AT LEAST 280 GRAMS

COCAINE BASE (CRACK) AND COCAINE HYDROCHLORIDE (CT-1).

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 144 MONTHS

TERM OF SUPERVISION............:

5 YEARS

DATE OF OFFENSE................: 05-14-2017

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RESP OF: FTD PHONE..: 609-723-1100 FAX: 609-724-7557 -------------------------CURRENT COMPUTATION NO: 010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 04-09-2020 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 12-08-2017 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN CURRENT COMPUTATION 010: 010 010

DATE COMPUTATION BEGAN..........: 11-21-2017 TOTAL TERM IN EFFECT............: 144 MONTHS TOTAL TERM IN EFFECT CONVERTED..: 12 YEARS EARLIEST DATE OF OFFENSE........: 05-14-2017

JAIL CREDIT.....................: FROM DATE 06-03-2015

THRU DATE 11-20-2017

TOTAL PRIOR CREDIT TIME.........: 902

TOTAL INOPERATIVE TIME..........: 0

TOTAL GCT EARNED AND PROJECTED..: 635

TOTAL GCT EARNED................: 203

STATUTORY RELEASE DATE PROJECTED: 09-05-2025

EXPIRATION FULL TERM DATE.......: 06-02-2027

TIME SERVED.....................:

4 YEARS

PERCENTAGE OF FULL TERM SERVED..: 41.0

PERCENT OF STATUTORY TERM SERVED: 47.9

11 MONTHS

3 DAYS

PROJECTED SATISFACTION DATE.....: 09-05-2025 PROJECTED SATISFACTION METHOD...: GCT REL

G0000

TRANSACTION SUCCESSFULLY COMPLETED

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REG

REGNO: 72850-067

FUNCTION: PRT DOB/AGE.:

/ 38

NAME.: SOTO-CONCEPCION, ELIEZER

R/S/ETH.: W/M/H

WALSH: NO

RSP..: FTD-FORT DIX FCI

MILEAGE.: 98 MILES

PHONE: 609-723-1100

FAX: 609-724-7557

PROJ REL METHOD: GOOD CONDUCT TIME RELEASE

FBI NO..:

PROJ REL DATE..: 09-05-2025

INS NO..: N/A

PAR ELIG DATE..: N/A

SSN.....:

PAR HEAR DATE..:

PSYCH: NO

DETAINER: NO

CMC..: YES

OFFN/CHG RMKS: 1:15CR00181-005 CONSP TO DIST & PWITD 1K OF HEROIN,280G COC

OFFN/CHG RMKS: BASE(CRK) & COC HYDROCHLORIDE;144MOS/5YRS SRT

FACL CATEGORY - - - - - CURRENT ASSIGNMENT - - - - - - EFF DATE TIME

FTD ADM-REL A-DES

DESIGNATED, AT ASSIGNED FACIL 07-08-2019 1219

FTD CARE LEVEL CARE1

HEALTHY OR SIMPLE CHRONIC CARE 01-17-2018 0848

FTD CARE LEVEL CARE1-MH CARE1-MENTAL HEALTH

04-27-2018 1503

FTD COR COUNSL 6695 L-Z S.SILVER, X-4535

07-08-2019 1219

FTD CASE MGT BIR CERT Y BIRTH CERTIFICATE - YES

12-01-2019 1426

FTD CASE MGT DEPEND Y DEPENDENTS UNDER 21 - YES

07-11-2018 1406

FTD CASE MGT PHOTO ID Y PHOTO ID - YES

12-01-2019 1426

FTD CASE MGT RPP PART RELEASE PREP PGM PARTICIPATES 12-22-2017 1203

FTD CASE MGT SSN CARD N SOCIAL SECURITY CARD - NO

07-11-2018 1406

FTD CASE MGT VET P/S N PARENT/SPOUSE VETERAN - NO

07-11-2018 1406

FTD CASE MGT VETERAN N VETERAN - NO

07-11-2018 1406

FTD CASE MGT V94 CDA913 V94 CURR DRG TRAF ON/AFT 91394 12-18-2017 1005

FTD CASE MGT WA NO HIST NO WALSH ACT OFFENSE HISTORY 12-01-2017 1524

FTD CASEWORKER 6695 L-Z M.MCCOLLUM, X-4562

07-08-2019 1219

FTD CUSTODY OUT

OUT CUSTODY

12-04-2017 0957

FTD DRUG PGMS ED NONE DRUG EDUCATION NONE

12-18-2017 1005

FTD DESIG/SENT ECHO

TEAM ECHO

11-30-2017 1302

FTD DESIG/SENT FPAM NO FPAM-DID NOT COMPLY W/JUD REC 12-04-2017 0959

FTD EDUC INFO ESL HAS ENGLISH PROFICIENT

04-17-2019 0939

FTD EDUC INFO GED HAS COMPLETED GED OR HS DIPLOMA 12-19-2017 1411

FTD FIN RESP COMPLT

FINANC RESP-COMPLETED

07-23-2018 1051

FTD FIRST STEP FTC ELIG FTC-ELIGIBLE - REVIEWED

12-01-2019 1437

FTD FIRST STEP R-LW

LOW RISK RECIDIVISM LEVEL

12-01-2019 1436

FTD LEVEL

MINIMUM SECURITY CLASSIFICAT'N MINIMUM 12-01-2017 1532

FTD MED DY ST C19-QUAR COVID-19 QUARANTINED

04-03-2020 0729

FTD MED DY ST NO PAPER NO PAPER MEDICAL RECORD

12-13-2017 0847

FTD MED DY ST REG DUTY NO MEDICAL RESTR--REGULAR DUTY 01-17-2018 0848

FTD MED DY ST YES F/S CLEARED FOR FOOD SERVICE

01-17-2018 0848

FTD PGM REVIEW JUN

JUNE PROGRAM REVIEW

06-10-2020 0811

FTD QUARTERS V02-158L HOUSE V/RANGE 02/BED 158L

04-25-2020 1515

FTD RELIGION NO PREFER NO PREFERENCE

12-18-2017 1004

FTD UNIT

CAMP

R. BRINSON, X-4532

07-08-2019 1219

FTD WAITNG LST FS PHYS PHYSICAL COMPLETED FOR FS

01-17-2018 0848

FTD WRK DETAIL GARAGE

GARAGE

07-08-2019 1219

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REGNO..: 79605-054 NAME: SCRONIC, MICHAEL

RESP OF: FTD PHONE..: 609-723-1100
PROJ REL MT: GOOD CONDUCT TIME RELEASE PROJ REL DT: 09-18-2025

FAX: 609-724-7557 RACE/SEX...: WHITE / MALE AGE: 48 PAR ELIG DT: N/A PAR HEAR DT:

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RESP OF: FTD PHONE..: 609-723-1100 FAX: 609-724-7557 HOME DETENTION ELIGIBILITY DATE: 03-18-2025

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S CURRENT COMMITMENT. THE INMATE IS PROJECTED FOR RELEASE: 09-18-2025 VIA GCT REL

----------------------CURRENT JUDGMENT/WARRANT NO: 010 ------------------------

COURT OF JURISDICTION...........: NEW YORK, SOUTHERN DISTRICT DOCKET NUMBER...................: 7:18-CR-00043 (CS) JUDGE...........................: SEIBEL DATE SENTENCED/PROBATION IMPOSED: 09-27-2018 DATE COMMITTED..................: 11-26-2018 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $100.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $22,026,427.00

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 153

18:286,371 FRAUD, OTHER

OFF/CHG: 15:78J(B) & 78FF, 17 CFR 240.10B-5 SECURITIES FRAUD, A CLASS C

FELONY

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 96 MONTHS

TERM OF SUPERVISION............:

3 YEARS

DATE OF OFFENSE................: 10-05-2017

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RESP OF: FTD PHONE..: 609-723-1100 FAX: 609-724-7557 -------------------------CURRENT COMPUTATION NO: 010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 03-11-2020 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 12-12-2018 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN CURRENT COMPUTATION 010: 010 010

DATE COMPUTATION BEGAN..........: 11-26-2018

TOTAL TERM IN EFFECT............: 96 MONTHS

TOTAL TERM IN EFFECT CONVERTED..:

8 YEARS

EARLIEST DATE OF OFFENSE........: 10-05-2017

JAIL CREDIT.....................: FROM DATE 10-05-2017

THRU DATE 10-05-2017

TOTAL PRIOR CREDIT TIME.........: 1

TOTAL INOPERATIVE TIME..........: 0

TOTAL GCT EARNED AND PROJECTED..: 432

TOTAL GCT EARNED................: 54

STATUTORY RELEASE DATE PROJECTED: 09-18-2025

EXPIRATION FULL TERM DATE.......: 11-24-2026

TIME SERVED.....................:

1 YEARS

PERCENTAGE OF FULL TERM SERVED..: 18.0

PERCENT OF STATUTORY TERM SERVED: 21.1

5 MONTHS

10 DAYS

PROJECTED SATISFACTION DATE.....: 09-18-2025 PROJECTED SATISFACTION METHOD...: GCT REL

G0000

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Case 1:20-cv-05496-RMB Document 28-3 Filed 05/18/20 Page 1 of 13 PageID: 1050

UNITED STATES DISTRIC T COURT FOR THE DISTRICT OF NEW JERSEY

TROY WRAGG , MICHAEL SCRONIC , LEONARD BOGDAN , and ELIEZER SOTO CONCEPCION , individually and on behalf of others similarly situated;
Petitioners ,
v.
DAVID E. ORTIZ , Warden of the Federal Correctional Institution, Fort Dix and MICHAEL CARVAJAL, Director of the Federal Bureau of
Respondent .

Civil Action No . 20-05496(RMB)

DECLARATION OF CHRISTI NA CLARK I , CHRISTINA CLARK , do hereby declare and state as follows:
1. I am a Senior Attorney with the Federal Bureau of Prisons (the " Bureau") , Federal Correctional Institution , Fort Dix, New Jersey (" FCI Fort Dix " ) . I have worked for the Bureau of Prisons since October 2007 , and have been assigned to FCI Fort Dix since February 2009 . I make this Declaration i n connection with the Bureau ' s response to the Temporary Restraining Order filed by Petitioners Troy Wragg , Reg . No . 67165-019 ; Michael Scronic , Reg . No . 79605 - 054 ; Leonard Bogdan , Reg. No. 07918 - 088 ; and Eliezer Soto - Concepcion , Reg . No . 72850067.

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2. I am aware the Petitioners are challenging the institution's actions with respect to the COVID-19 pandemic and seek release from confinement.
3. The Bureau of Prisons has established an administrative remedy procedure through which an inmate can seek formal review of any complaint regarding any aspect of his imprisonment. See 28 C. F.R. § 542 et seq. In order to exhaust administrative remedies , an inmate must first present his complaint to the Warden of the institution where he is confined . He may then further appeal an adverse decision to the Regional Director within 20 calendar days of the date the Warden signed the response. An inmate who is not satisfied with the Regional Director 's response may submit an appeal to the Central Office, Genera l Counsel , within 30 calendar days of the date the Regional Director signed the response . No administrative remedy appeal is considered to have been finally exhausted unti l it has been denied by the Bureau of Prisons ' Central Office.
4. In the ordinary course of business , computerized indexes of all administrative appeals filed by inmates are maintained so that rapid verification may be made as to whether an inmate has exhausted administrative appeals on a particular
2

Case 1:20-cv-05496-RMB Document 28-3 Filed 05/18/20 Page 3 of 13 PageID: 1052

issue. On or about May 7 , 2020 , I accessed the computer i zed indexes of all administr ative remedies filed by the four Petitioners .

5 . Records revea l three of the Petitioners (Wragg , Scronic and Soto-Concepcion) have never filed an Administ r ative Remedy while i n carcerated with the BOP . See Exhibits 1 - 3. Inmate Bogdan , Reg . No . 07918 - 088 , has filed a n umber of Remedies between 2016 and November 2019 challenging Compassionate Release request denials . See Exhibit 4 . He has not filed an Administrative Remedy since the COVID-19 pandemic began in 2020 .

6 . Attached hereto , please find t r ue and correct copies o f the following documents :

Attachment 1

Administra t ive Remedy Ge n eralized

Retrieval , Wr agg Reg . No . 67165 - 019 ;

Attachment 2

Administrative Remedy Ge n eralized

Retrieval , Inmate Scronic Reg . No . 79605 - 054 ;

Attachment 3

Administrative Remedy Generalized

Retrieval , Inmate Soto-Concepcion Reg . No . 72850 - 067 ;

Attachment 4

Administrat ive Remedy Generalized

Retrieval , Inmate Bogdan Reg . No . 079 1 8-088 .

3

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I decl are that any and all records attached to this declaration are true and accurate copies maintained in the ordinary course of busine ss by the Federal Bureau of Prisons . I further dec l are that the foregoing is true and correct to the best of my knowledge and belief , and is given under penalty of perjury pursuant to 28 U. S . C. § 1746.

Senior Attorney FCI Fort Dix

ESQ .

Date

4

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OUTPUT FORMAT: ifULL

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

DT RCV: FROM 1 -- - - THRU 1 - - - - DT ISTS: FROM 1- - - - THRU

DT ISTS: FROM I

TO I

DAYS BEFORE "OR" FROM I

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DAYS AFTER DT

I - I - I - DT iTDU: FROM

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STS/REAS: SUBJECTS: EXTENDED:

I I

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i== PERSON: TYPE: i==
EVNT FACL: fEcf i== RCV FACL. : fEcf i==

. . . - - - - - 1_ _ _ _ 1 -- - - 1 -- - - 1 -- - -

i==

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0RIG QTR.: !EQ 1 - - - - 1 -- - - i- - --

1 -- - - 1---- - -

1 -- - -

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

DT RCV: FROM 1---- - - THRU 1 - - - - - DT lsTs: FROM i- - - - THRU

DT lsTs: FROM I

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RCV OFC : fE'cf i==

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1 - PERSON: 1 - TYPE:
i== EVNT FACL: jEQ RCV FACL. : fE'cf i==

RCV UN/LC: jEQ ,___ _ _ ,___ _ _ ,_ _ _ _ ,___ _ _ ,____ _ _ ,____ __

RCV QTR . • : IEQ ,___ _ _ - - - - •- - - - ,___ _ _ ,____ _ _ - - - -

i== ORIG FACL: IEQ

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ORG UN/LC: IEQ - - - - I - - - - - 1 - - - - - - 1 - - - - - - 1 - - - - - - 1 - - - - - -

0RIG QTR . : !EQ 1 - - - -- - 1 - - - - - 1 - - - - - - 1 - - - - - - 1 - - - - - - 1 - - - -- -

G5152

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RCV OFC :

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i== ORI G FACL: jEQ

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0RIG QTR. : !EQ 1--- - - 1---- --

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SUBJ1/SUBJ2 - - - - -- - - - - -- ---- - - - - ABSTRACT- - - ---- -- - - --- - . ----- -- -

RCV- OFC

RCV- FACL

DATE-RCV

STATUS

STATUS - DATE

851869- Rl

13GM/ NER

COMPASSIONATE RELEASE REQUEST

FTD

02 - 11- 2016

REJ

02-16- 2016

856495-Fl

13GM/ FTD

APPEAL DENIAL OF COMPASSIONATE RELEASE

FTD

03-25-2016

CLD

04-14- 2016

856495 - Rl

13GM/ NER

APPEAL DENIAL OF COMPASSIONATE RELEASE

FTD

04 - 22 - 2016

CLD

05-16- 2016

856495 - Al

13GM/ BOP

APPEAL DENIAL OF COMPASSIONATE RELEASE

FTD

06 - 09 - 2016

CLD

09-21- 2016

910496-Fl

13LM/ FTD

APPEAL DENIAL OF COMPASSIONATE RELEASE

FTD

07 - 31- 2017

CLD

08-17 - 2017

989046- Rl

13LM/ NER

REQ FOR COMPASSIONATE RELEASE

FTD

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REJ

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RCV- OFC

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DATE-RCV

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STATUS-DATE

990215-Fl

13GM/ FTD

REQ RECONSIDERATION OF COMPASSIONATE RELEASE- W/ FSA

FTD

09-09- 2019

CLO

09-19-2019

990215-Rl

13GM/ NER

REQ RECONSIDERATION OF COMPASSIONATE RELEASE- W/ FSA

FTD

09-27-2019

CLO

10-25-2019

990215 -Al

13GM/ BOP

REQ RECONSIDERATION OF COMPASSIONATE RELEASE- W/ FSA

FTD

11- 21-2019

CLO

01-28-2020

GOOOO

9 REMEDY SUBMISSION(S) SELECTED TRANSACTION SUCCESSFULLY COMPLETED

https://bop.tcp.doj .gov:9049/SENTRY/JI PRGR0.do

5/7/2020

 
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Attachment 1

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U.S. Department of Justice Federal Bureau of Prisons

PROGRAM STATEMENT

OPI:

HSD/SAF

NUMBER: 1600.11

DATE:

June 1, 2017

National Occupational Safety and Health Policy

/s/ Approved: Thomas R. Kane Acting Director, Federal Bureau of Prisons
1. PURPOSE AND SCOPE
This new policy replaces the safety and health requirements (Chapters 1 and 2) in the Program Statement Occupational Safety, Environmental Compliance, and Fire Protection. The need for a new policy was prompted by numerous changes to Occupational Safety and Health Administration (OSHA) regulations, American Correctional Association (ACA) standards, , and National Fire Codes (NFC) requirements relating to occupational safety and health since the policy was issued in 2007. The purpose of this policy is to:
■ Provide a safe and healthy environment for facility occupants. ■ Implement a facility safety program. ■ Provide an environment free from recognized hazardous likely to cause death or serious
physical harm. ■ Provided safety and health training for personnel. ■ Ensure prompt abatement of unsafe and unhealthy working conditions. ■ Ensure all institutions comply with the most recent codes, standards, and regulations; the
following are referenced in this policy:
¾ OSHA. ¾ National Fire Protection Association (NFPA). ¾ ACA.

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■ Requirements for conditions or operations not adequately addressed by the codes and standards referenced above may use information published by:
¾ American Society for Testing and Materials (ASTM). ¾ American National Standards Institute (ANSI). ¾ American Conference of Governmental Industrial Hygienists (ACGIH).
The scope of this policy is limited to occupational safety and health requirements dealing with:
■ Institution Security. ■ Occupational Safety. ■ Occupational Health.
This policy applies to:
■ BOP-owned or -operated detention and correctional facilities. ■ UNICOR operations at BOP detention and correctional facilities.
a. Summary of Changes
Policy Rescinded P1600.09 Occupational Safety, Environmental Compliance, and Fire Protection (10/31/07);
Chapters 1 and 2 (Safety and Health) only.
Numerous changes to occupational safety/health codes, standards, and regulations have been incorporated into this policy.
b. Program Objectives. The objectives of this policy are:
■ Evaluate unsafe or unhealthy conditions reported by facility occupants. ■ Evaluate accidents and injuries that occur at the facility. ■ Develop a plan of corrective action based on the evaluation of hazards and accidents. ■ Ensure personal protective equipment is issued and used by all personnel when necessary. ■ Conduct safety and health inspections/audits, as specified in this policy. ■ Conduct hazard assessments and surveys, as specified in this policy. ■ Minimize the possibility of accidents, deaths, and illnesses. ■ Encourage facility occupants to report workplace hazards. ■ Ensure that safety is a principal element in all BOP operations.
c. Institution Supplement. Each facility must develop an institution supplement on foot protection. Should local facilities make any changes outside the required changes in the national

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policy or establish any additional local procedures to implement national policy, the local Union may invoke to negotiate procedures or appropriate arrangements.
d. Written Plans and Programs. Each institution must develop the following written plans/programs:

■ Control of flammable, toxic, and caustic materials. See Chapter 3, Section 4. ■ Confined space. See Chapter 2, Section 5. ■ Control of Hazardous Energy (Lockout/Tagout). See Chapter 2, Section 6 ■ Fall protection. See Chapter 2, Section 3. ■ Hazard communication. See Chapter 3, Section 3. ■ Hearing conservation. See Chapter 3, Section 8. ■ Hot work. See Chapter 2, Section 14. ■ Pest control. See Chapter 3, Section 10. ■ Respiratory protection. See Chapter 3, Section 2.

REFERENCES

Program Statements P1600.12 National Environmental Protection Policy (6/1/2017) P1600.13 National Fire Protection Policy (6/1/2017) P1601.05 Workers’ Compensation Programs (3/25/16) P4200.11 Facilities Operations Manual (4/12/16) P5500.14 Correctional Services Procedures Manual (8/1/16)

BOP Forms BP-A0139 BP-A0140 BP-A0169 BP-A0506 BP-A0658

Notice of Right to File for Compensation for a Work-Related Injury Injury Report – Inmate Uniform Basic Safety Regulations Institution Fire/Safety and Sanitation Inspection Inmate Claim for Compensation Resulting from Work Injury

Other Forms

OSHA 300 Log of Work-Related Injuries and Illnesses

OSHA 300a Summary of Work-Related Injuries and Illnesses

OSHA 301 Injury and Illness Incident Report

SF-91

Motor Vehicle Accident Report

SF-94

Statement of Witness

SF-95

Claim for Damage, Injury, or Death

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ACA Standards ■ American Correctional Association Standards for Adult Correctional Institutions, 4th Edition:
4-4082, 4-4145, 4-4146, 4-4211, 4-4212, 4-4215, 4-4329, 4-4332, 4-4333, 4-4358, and 4-4413 ■ American Correctional Association Performance Based Standards for Adult Local Detention
Facilities, 4th Edition: 4-ALDF-1A-01M, 4-ALDF-1A-03M,4-ALDF-1A-04, 4-ALDF-1A14,4-ALDF-1A-16, 4-ALDF-1C-08M,4-ALDF,1C-09M, 4-ALDF-1C-11M, 4-ALDF-4C18M, and 4-ALDF-4D-26 ■ American Correctional Association Standards for Administration of Correctional Agencies, 2nd Edition: 2C0-2A-02, 2C0-1D-15, and 2C0-3B-01 ■ American Correctional Association Standards for Correctional Training Academies: 1CTA2B-01, 1CTA-2B03, 1CTA-3B-06, 1CTA-3C-05 1CTA-3E-03, 1CTA-3E-04, and 1CTA-3E05
Records Retention Requirements For guidance on records and information that apply to this program, see the Records and Information Disposition Schedule (RIDS) on Sallyport.

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CONTENTS
Chapter 1. Administration ...........................................................................................................7
1. Occupational Safety and Health Duties.......................................................................................7 2. Environmental/Fire/Safety Training Records............................................................................11 3. Occupational Safety and Health Training Requirements ..........................................................12 4. Institution Safety Committee ....................................................................................................13 5. Inspections ................................................................................................................................13 6. Technical Assistance Visits.......................................................................................................14 7. Reporting Hazards.....................................................................................................................14 8. OSHA Poster.............................................................................................................................15 9. Accidents...................................................................................................................................15 10. Reports ....................................................................................................................................16 11. External Agency Visits ...........................................................................................................16 12. Inmate Injury Investigation .....................................................................................................17 13. Construction and Renovation Projects ....................................................................................18 14. Driver Licensing......................................................................................................................18 15. Seat Belt Use ...........................................................................................................................19 16. Distracted Driving ...................................................................................................................19
Chapter 2. Occupational Safety .................................................................................................20
1. Hazard Assessment ...................................................................................................................20 2. Firing Ranges ............................................................................................................................21 3. Walking-Working Surfaces.......................................................................................................21 4. Painting Operations ...................................................................................................................23 5. Confined Space Program...........................................................................................................23 6. Control of Hazardous Energy (Lockout/Tagout) ......................................................................25 7. Tire Service ...............................................................................................................................27 8. Powered Industrial Trucks ........................................................................................................28 9. Personnel Lifts (Aerial Lifts/Scissor Lift/Boom Truck) ...........................................................30 10. Machine Guarding...................................................................................................................31 11. Cleaning With Compressed Air..................................................................................................32 12. Lawn Equipment .....................................................................................................................32 13. Welding, Cutting, and Brazing................................................................................................32 14. Hot Work Plan ........................................................................................................................33 15. Electrical .................................................................................................................................34 16. Excavations/Trenching............................................................................................................36 17. Compressed Gas Storage.........................................................................................................36 18. Chlorination Rooms ................................................................................................................37 19. Kilns ........................................................................................................................................37 20. Portable Power Tools and Hand-Held Equipment ..................................................................37 21. Cranes......................................................................................................................................38 22. Transportation .........................................................................................................................38

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Chapter 3. Occupational Health ................................................................................................40
1. Injury Recordkeeping................................................................................................................40 2. Respiratory Protection...............................................................................................................41 3. Hazard Communication.............................................................................................................44 4. Chemical Control and Accountability.......................................................................................45 5. Toxic And Hazardous Substances and Lead .............................................................................45 6. Eye Wash Stations and Showers ...............................................................................................48 7. Ventilation.................................................................................................................................48 8. Noise .........................................................................................................................................49 9. Lighting.....................................................................................................................................52 10. Pest Control.............................................................................................................................53 11. Security X-Ray Machines .......................................................................................................54

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ACRONYMS AND ABBREVIATIONS

ACA ACGIH AD ASTM ANSI BOP CDL CEO CFR DOL DOJ DOT ESCA FIFRA GFCI HSD HVAC IAC NESCA NIOSH NFPA NFC NOV NRC OSHA OPM PEL PPE RD RESCA SCBA SHU SDS T4T TPQ TSCA UL VT

American Correctional Association American Conference of Governmental Industrial Hygienists Assistant Director American Society for Testing Material American National Standard Institute Federal Bureau of Prisons Commercial Drivers License Chief Executive Officer Code of Federal Regulations U.S. Department of Labor U.S. Department of Justice U.S. Department of Transportation Environmental and Safety Compliance Administrator Federal Insecticide, Fungicide, and Rodenticide Act Ground Fault Circuit Interrupter Health Services Division Heating, Ventilation, and Air Conditioning Inmate Accident Compensation National Environmental and Safety Compliance Administrator National Institute for Occupational Safety and Health National Fire Protection Association National Fire Codes Notice of Violation Nuclear Regulatory Commission Occupational Safety and Health Administration Office Personnel Management Permissible Exposure Limit Personal Protective Equipment Regional Director Regional Environmental and Safety Compliance Administrator Self-Contained Breathing Apparatus Special Housing Unit Safety Data Sheet Training-for-Trainers Threshold Planning Quantity Toxic Substance Control Act Underwriters’ Laboratories Vocational Training

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Chapter 1. Administration
1. OCCUPATIONAL SAFETY AND HEALTH DUTIES
a. Assistant Director. The Assistant Director (AD), Health Services Division (HSD), is designated as the Health and Safety Official for the Federal Bureau of Prisons (BOP).

b. National Environmental and Safety Compliance Administrator. The National Environmental and Safety Compliance Administrator (NESCA), reports to the AD, HSD, on issues relating to occupational safety. He/she:

■ Oversees the management of the BOP’s occupational safety and health program. ■ Supervises the Chief, Occupational Safety Compliance. ■ Provides technical direction to Regional Environmental and Safety Compliance
Administrators (RESCA). ■ Interprets the BOP Occupational Safety and Health Policy. ■ Provides guidance and technical assistance to Central Office, Regional, and institution staff
to resolve OSHA issues that cannot be resolved at the institution or regional levels.
c. Chief, Occupational and Employee Health. The Chief, Occupational and Employee Health, reports to the AD, HSD, on issues relating to occupational health. He/she:

■ Oversees the management of the Bureau’s occupational health program. ■ Interprets the Bureau’s Occupational Health requirements within this policy. ■ Supervises the Occupational and Employee Health Branch. ■ Provides technical direction to RESCAs on occupational health issues. ■ Provides guidance and technical assistance to Central Office, Regional, and institution staff
to resolve occupational health issues that cannot be resolved at the institution or regional levels.
d. Chief, Occupational Safety Compliance. The Chief, Occupational Safety Compliance, reports to the NESCA on issues relating to occupational safety. He/she:

■ Oversees the daily operation of the Bureau’s occupational safety program. ■ Interprets the Bureau’s Occupational Safety requirements within this policy. ■ Serves as the BOP point of contact for OSHA visits to institutions. ■ Notifies RESCAs of scheduled OSHA visits. ■ Serves as a technical resource in the area of:

¾ OSHA-related programs. ¾ OSHA citations and complaints. ¾ OSHA compliance audits.

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■ Provides guidance and technical assistance to Central Office, regional, and institution staff to resolve OSHA issues that cannot be resolved at the institution or regional levels.
e. Regional Environmental and Safety Compliance Administrator. The Regional Environmental and Safety Compliance Administrator (RESCA), reports to the Regional Director (RD) on issues relating to occupational safety and health. He/she, in conjunction with the National Environmental and Safety Compliance Branch and the Occupational and Employee Health Branch:
■ Provides direction and technical assistance to help resolve occupational safety and health issues that cannot be resolved at the institution level.
■ Conducts technical assistance visits to institutions. ■ Assists institutions with timely OSHA injury and illness reporting requirements. ■ Monitors the effectiveness and uniformity of Regional occupational safety and health
programs. ■ Monitors reports and other occupational safety and health data generated by institution
personnel. ■ Notifies the NESCA of OSHA citations and complaints and forwards the citation and
complaints to the Chief, Occupational Safety Compliance. ■ Monitors occupational safety and health reports to identify and track:
¾ Safety trends. ¾ ACA Accreditation and Reaccreditation issues. ¾ Program Review findings. ¾ Operational review findings. ¾ OSHA citations and complaints. ¾ OSHA injury and illness reporting requirements. ¾ Training needs. ¾ Injury rates.
■ Assists in conducting institutional OSHA Compliance Audits. ■ Serves as the regional technical resource for emergency response procedures involving
natural disasters, chemical, biological, radiological/nuclear, and explosive incidents. ■ Monitors Program Review findings relating to occupational safety and health issues. ■ Identifies and assists in the implementation of corrective actions to address Program Review
findings. ■ Assists institutions in the implementation of SCBA fit test and training programs. ■ Serves as the Regional technical resource for emergency response procedures involving
occupational safety and health emergencies. ■ Provides quarterly updates to the NESCA and Chief, Occupational Safety Compliance on:

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¾ ACA visits. ¾ Government Owned Vehicle accidents. ¾ Program Reviews. ¾ Regional occupational safety and health initiatives. ¾ Safety incidents. ¾ Status of corrective action on OSHA citations and complaints. ¾ Updates on serious injuries and hospitalizations.

f. Certified Industrial Hygienist (Central Office). The Central Office Certified Industrial Hygienist reports to the Chief, Occupational and Employee Health, on issues relating to occupational health and industrial hygiene. He/she:

■ Provides occupational safety and health consultation to Institutional and Regional ESCAs (e.g., indoor air quality, workplace mold, and other workplace and industrial hygiene stressors).
■ Reviews Safety Data Sheets and provides Hazard Communication guidance for Job Hazard Assessments for FPI and BOP facilities.
■ Develops scopes of work for industrial hygiene contractors and reviews contractor reports for technical accuracy and recommendation effectiveness.
■ Recommends effective and appropriate PPE for staff/inmate use. ■ Assists in drafting responses to regulatory agencies (i.e., OSHA) regarding workplace health
and safety issues. ■ Provides guidance on potentially hazardous new chemicals, processes, or operations within the
correctional environment for FPI and BOP facilities. ■ Assists and provides Chief, Occupational and Employee Health, with technical input for
industrial hygiene policies. ■ Collects and analyzes injury surveillance data of workplace injuries. ■ Must maintain American Board of Industrial Hygiene (ABIH CIH) certification required for
duties.

g. Occupational Safety Compliance Specialist (Central Office). The Central Office Occupational Safety Compliance Specialist reports to the Chief, Occupational Safety Compliance, on issues relating to occupational safety. He/she serves as a technical resource to Central Office, Regional, and institution staff in the areas of:

■ OSHA-related programs. ■ OSHA citations and complaints. ■ Bureau policy relating to occupational safety and health. ■ Occupational safety and health training. ■ Accident investigation.

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He/she will be called on to participate in:
■ After-action reviews. ■ Data collection. ■ Development and delivery of occupational safety and health training. ■ Responses to OSHA citations and complaints. ■ Occupational safety work groups. ■ OSHA compliance audits. ■ ACA accreditation and reaccreditations. ■ Project plan and specification review. ■ Technical assistance visits.

h. Environmental and Safety Compliance Administrator (ESCA). The Environmental and Safety Compliance Administrator (ESCA) advises the institution Chief Executive Officer (CEO) on occupational safety and health issues. He/she works at the department head level with other institution managers to achieve safety goals. When policy and regulations are not specific, he/she must exercise professional judgment to maintain a reasonable level of occupational safety and health protection at the institution. He/she serves as the institution’s technical resource for emergency response procedures involving accidents, injuries, deaths, and similar emergencies.

i. Other Environmental and Safety Compliance Personnel (Institution). Other Environmental and Safety Compliance Department staff report to the ESCA and assist in the implementation of the institution’s occupational safety and health program.

j. Environmental and Safety Compliance Administrator Trainee. The Environmental and Safety Compliance Administrator Trainee advises the institution ESCA on occupational safety and health issues. He/she works with the ESCA and other institution managers to achieve safety goals. When policy and regulations are not specific, he/she must exercise professional judgment to maintain a reasonable level of occupational safety and health protection at the institution.

k. Environmental and Safety Compliance Alternates. If the institution ESCA is the only fulltime Environmental and Safety Compliance Department staff member, the CEO must appoint at least one safety alternate to provide department coverage during the ESCA’s absence. The CEO at an institution with two or more full-time Environmental and Safety Compliance Department staff is highly encouraged to appoint one or more safety alternates.
l. Chief Executive Officers. The Chief Executive Officer (CEO) must:

■ Support institution occupational safety and health program initiatives.

■ Monitor the effectiveness of the institution occupational safety and health program.

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■ Ensure adequate Environmental and Safety Compliance Department staffing to administer the institution occupational safety and health program.
■ Ensure compliance with this policy and applicable safety and health regulations/standards. ■ Ensure periodic occupational safety and health inspections of the facility are conducted
by technically competent personnel. ■ Ensure prompt abatement of unsafe and/or unhealthful working conditions. ■ Ensure accurate recordkeeping for occupational safety and health issues. ■ Ensure that adequate occupational safety and health training is provided to management,
supervisory, safety, and collateral duty safety personnel, as well as all other institution personnel. ■ Ensure employees are not subject to restraint, interference, coercion, discrimination, or reprisal for exercising their rights under, or participating in, the Bureau’s occupational safety and health program and OSHA regulations. ■ Ensure all staff are adequately trained in safety and health initiatives.
m. Supervisors. All supervisors must:

■ Perform their duties in the safest possible manner. ■ Ensure safety practices are followed and implement corrective actions. ■ Ensure personnel are trained in occupational safety and health. ■ Comply with this policy.
■ Familiarize themselves with hazards in particular jobs or the physical surroundings of employees.
■ Ensure that personnel are aware of the hazards in particular jobs. ■ Immediately report all injuries, accidents, or similar emergencies to the Environmental and
Safety Compliance Department. ■ Ensure that injured personnel receive appropriate medical attention. ■ Ensure that accident and injury reports are completed.

n. Employees. Employees must:

■ Perform their duties in the safest possible manner. ■ Comply with this policy. ■ Immediately report all incidents, injuries, illnesses, or similar emergencies to their
supervisors and the Environmental and Safety Compliance Department. ■ Immediately report hazards or unsafe acts to their supervisors and/or to the ESCA. ■ Complete necessary forms for injuries or illnesses.

2 . IMMINENT DANGER. When a member of the Environmental and Safety Compliance Department determines that conditions or practices could reasonably and immediately be

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expected to cause death or serious physical harm, he/she must inform affected employees of the danger and shut down the area, work, or process until the danger is eliminated.
Written notification of an imminent danger determination, identifying both the hazardous conditions and actions taken, must be submitted to the CEO, RESCA, NESCA, and local Union President or designee.
The area, work, or process may be reopened/restarted only after the ESCA conducts an inspection and provides written approval. A copy of the written approval must be provided to the CEO, RESCA, NESCA, and local Union President or designee.
The RESCA and NESCA must review all actions taken as a result of an imminent danger determination.
3. ENVIRONMENTAL/FIRE/SAFETY TRAINING RECORDS
All records for Environmental/Fire/Safety training conducted at the institution must be maintained by the department providing the training.

4. OCCUPATIONAL SAFETY AND HEALTH TRAINING REQUIREMENTS

a. Environmental and Safety Compliance Department Staff. Environmental and Safety Compliance Department staff must complete the following training:

■ Electrical Standards (OSHA 3095). ■ Machinery and Machine Guarding Standards (OSHA 2045). ■ OSHA Guide to Industrial Hygiene (OSHA 521). ■ OSHA Standards for Construction (OSHA 510). ■ OSHA Standards for General Industry (OSHA 511). ■ Permit-Required Confined Space Entry (OSHA 2264). ■ Respiratory Protection (OSHA 2225).

b. All Staff (Institution). Institution staff must be trained during Introduction to Correctional Techniques Phase I and Annual Training in the following:

■ Asbestos awareness. ■ Confined Space Identification. ■ Energy Control Program (Lockout/Tagout). ■ Hazard Communication Program. ■ Hearing Conservation Program. ■ Conducting inmate safety training.

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■ Monthly/weekly departmental inspections. ■ Respiratory Protection Program.

c. Administrators, Managers, and Supervisors (Institution Duty Officers). All administrators, managers, and supervisors must be trained annually in inspection techniques needed to determine compliance with the following requirements:

■ Applicable occupational safety and health regulations and standards. ■ This policy.

d. Inmate Training. Each inmate must receive familiarization training during Institution Admission and Orientation on occupational safety and health programs. He/she must sign the forms BP-A0169, Uniform Basic Safety Regulations, and BP-A0139, Notice of Right to File for Compensation for a Work-Related Injury. A copy of each form must be placed in the Inmate Central File.

Upon assignment to a job or detail, each inmate must receive initial training by his/her supervisor concerning safe work methods and hazardous materials. Refresher training must be provided annually or whenever there is a work process change. At a minimum, training must include demonstration of safety features and practices. Workers must be trained to recognize hazards involved in the workplace, understand protective devices and clothing, and report deficiencies to their supervisors. Training must be documented and signed by the inmate.

5. INSTITUTION SAFETY COMMITTEE

a. Institution Safety Committee Membership. The Institution Safety Committee must include department heads (including the ESCA and Facilities Manager(s)) designated by the CEO, UNICOR representation, and Union representation (per the Master Agreement, Article 27). Other staff should be invited to Safety Committee meetings as needed to discuss issues involving their areas.

The ESCA must chair the committee and designate a recorder to prepare minutes. Minutes must be forwarded to the committee members, including the local Union and to the RESCA.

The committee must meet quarterly. More frequent meetings may be required based on other requirements (e.g., Environment of Care requirements at Medical Centers). At a minimum, the following topics must be reviewed:

■ Accidents and injuries. ■ Environmental issues as required by the Program Statement National Environmental
Protection Policy.

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■ Fire safety issues as required by the Program Statement National Fire Protection Policy. ■ Hazardous complaint log. ■ Inspections. ■ Pest Control. ■ Operational/Program Review reports. ■ Environmental/Fire/Safety Training.
b. Work Programming Committee. The ESCA must be a member of the Work Programming Committee.
6. INSPECTIONS
a. Weekly Inspections. The Institution Duty Officer must inspect all areas of the institution weekly, using form BP-A0506, Institution Fire/Safety and Sanitation Inspection.
b. Monthly Inspections. All areas of the institution must be inspected monthly by Environmental and Safety Compliance staff.
c. Annual Inspections. In addition to the monthly inspection requirement, annual inspections of the following must be completed and documented.
(1) Sanitation Inspection. The annual sanitation inspection may be conducted by any of the following:
■ Environmental and Safety Compliance Department staff from another BOP facility. ■ RESCA. ■ Central Office Safety Compliance Staff.
If deficiencies are noted on the annual sanitation inspection, documentation by an independent outside source must be maintained to show deficiencies have been corrected.
(2) Work, Health, and Safety Inspection. The annual work, health, and safety inspection may be conducted by any of the following:
■ ESCA. ■ Environmental and Safety Compliance Department staff from another BOP facility. ■ RESCA. ■ Central Office Safety Compliance Staff.
d. Inspection Records. Inspection must be documented by a written report:

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■ Weekly/Monthly Inspections. Written reports of weekly and monthly inspections, including deficiencies, must be sent to the department head and forwarded to the Warden, through the Associate Warden, for review and corrective action if needed. The reports and corrective actions taken must be kept in the Environmental and Safety Compliance Department for three years.
■ Annual Inspections. Written reports of annual inspections, including deficiencies and corrective actions taken, must be kept in the Environmental and Safety Compliance Department for three years.
7. TECHNICAL ASSISTANCE VISITS
The CEO or Regional Director may request technical assistance visits. Requests for Central Office technical support must be routed through the Regional Director to the Assistant Director, HSD.
8. REPORTING HAZARDS
Personnel are encouraged to report unsafe or unhealthful conditions to their supervisors. Since many safety and health problems can be eliminated as soon as they are identified, the existence of formal channels of communication does not preclude immediate corrective action by a supervisor in response to oral reports of unsafe or unhealthful working conditions.
Any person who believes that an unsafe or unhealthful condition exists in a workplace where he/she is employed has the right to report the unsafe or unhealthful condition to the ESCA, CEO, Regional or Central Office staff, or directly to OSHA, U.S. Department of Labor (DOL).
Each report of an existing or potential unsafe or unhealthful working condition must be recorded in a log maintained in the Environmental and Safety Compliance Department. A copy of each report must be presented to the Institution Safety Committee at the next meeting. Log entries must contain:
■ Date. ■ Time. ■ Code/reference/file number. ■ Location of condition. ■ Brief description. ■ Classification (imminent danger, serious, or other). ■ Date and nature of action taken.

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The Environmental and Safety Compliance Department must conduct an inspection immediately upon notification of imminent danger conditions, within 8 hours for potentially serious conditions, and 3 working days for other than serious conditions.
A written summary must be provided to the local Union and the employee or inmate upon request. Distribution of the employee report must be per the Master Agreement.
9. OSHA POSTER
The Bureau Occupational Safety and Environmental Health Program poster must be displayed in a conspicuous location frequented by employees and inmates. The poster details the Bureau program and how to file a report.
10.ACCIDENTS
Work-related accidents and injuries must be reviewed and documented by the supervisor and the Environmental and Safety Compliance Department. Documentation of property damage accidents must be retained in the Environmental and Safety Compliance Department for three years.

11. REPORTS

a. Serious Accidents/Incidents. The ESCA must notify the CEO; RESCA; Chief, Occupational Safety Compliance; and OSHA of the following:

■ All work-related fatalities within 8 hours. ■ All work-related inpatient hospitalizations, amputations, and losses of an eye within 24
hours.

Note: Inpatient hospitalizations solely for observation or diagnostic testing do not need to be reported to OSHA. The inpatient hospitalization must be for treatment purposes.

Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Further, for an in-patient hospitalization, amputation, or loss of an eye, these incidents must be reported to OSHA only if they occur within 24 hours of the work-related incident.

The report can be made to OSHA by:

■ Calling OSHA's toll free number at 1-800-321-OSHA.

■ Calling the closest OSHA Area Office during normal business hours.

■ Online through the OSHA website.

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b. Motor Vehicle Accidents. The Environmental and Safety Compliance Department must review accidents involving Government motor vehicles using Standard Forms 91, 94, and 95. A summary report for each motor vehicle accident resulting in an injury must be forwarded to the RESCA and Chief, Occupational Safety Compliance. In addition, a copy of the accident report must be forwarded to the institution Facilities Department.

c. Outside Visitor Accidents. Accidents involving outside visitors must be reported to the Institution Duty Officer, Environmental and Safety Compliance Department, Health Services Department, and Operation Lieutenant.

12. EXTERNAL AGENCY VISITS

a. The CEO must ensure that notification is sent to the Chief, Occupational Safety Compliance, and RESCA of:

■ OSHA requests to visit/inspect. ■ OSHA unannounced visits. ■ OSHA citations and complaints. ■ Outside visit or inspection related to other occupational safety or health issues. ■ Work-related deaths or serious injuries.

b. Coordination. Institution management must coordinate all OSHA site visits/inspections through the Chief, Occupational Safety Compliance.

c. Reporting. The CEO must ensure a copy of all outside visit reports are sent to the RESCA. The RESCA must forward a copy to the NESCA and Chief, Occupational Safety Compliance, within 48 hours of receipt.

13. INMATE INJURY INVESTIGATION

a. Work-Related Injuries. The purpose of an inmate injury investigation is to find the cause of the injury. Work-relatedness for compensation purposes is concluded by determining whether the injury took place at the assigned workplace during assigned hours and was incidental to the employment.

The assigned workplace is any place the inmate is authorized to be performing an assignment,

not just the work station. For example, if a worker slipped on the way to the bathroom from a

work station, it is considered a work injury. If he/she slipped on the sidewalk outside the

building on the way to lunch, it is not a work injury. The Institution Safety Committee must

decide each case individually. Listed below are procedures for documenting inmate injuries:

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■ Complete a BP-A0140 (Part 1, Injury Report) for all inmate work-related injuries. ■ Lost-Time Work Injuries require a completed BP-A0140 (Part 2, Lost Time Follow-up
Report). ■ Lost-time compensation must be paid per the Federal Inmate Compensation Act. ■ The detail of assignment at the time of injury is responsible for lost-time compensation,
including for those transferred to a Medical Center for additional care.
b. Transfer of Records. Copies of injury reports maintained in the Environmental and Safety Compliance Department should not be forwarded unless requested by the receiving institution.
c. Records Retention. Inmate injury records must be retained for the duration of the sentence plus three years.

14. INMATE ACCIDENT COMPENSATION (IAC)
Compensation may be awarded via the following two separate programs: Lost-Time Wages and Inmate Accident Compensation for work-related physical impairment or death.

a. Lost-Time Wages may be awarded to inmates (while still incarcerated) for work-related injuries resulting in time lost from the work assignments. Lost-time wages are paid for time lost in excess of three consecutively scheduled work days. The day of injury is considered to be the first work day, regardless of the time of the injury.

In order to be eligible for Lost-time wages, the inmate must have been assigned to one of the following when the injury occurred:

■ Federal Prison Industries, Inc. ■ Paid institutional work assignments involving the operation or maintenance of a Federal
correctional facility. ■ Approved work assignments for other Federal entities.

Procedures for lost-time wages while the inmate remains incarcerated are in 28 CFR, Part 301.

The detail of assignment at the time of injury is responsible for lost-time compensation, including for those inmates transferred to a Medical Center for additional care.

b. Inmate Accident Compensation may be awarded to former Federal inmates (postincarceration, or upon release to community confinement) or their dependents for physical impairment or death resulting from injuries sustained while performing work assignments.

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In order to be eligible for Inmate Accident Compensation, the inmate must have been assigned to one of the following when the injury occurred:
■ Federal Prison Industries, Inc. ■ Paid institutional work assignments involving the operation or maintenance of a Federal
correctional facility. ■ Approved work assignments for other Federal entities.
c. Providing Documentation for Inmate Accident Compensation Process. The Inmate Accident Compensation Program Coordinator processes claims for compensation for impairment or death, and manages all claims processed at the Central Office level for inmates released from a Bureau of Prisons correctional facility upon expiration of sentence, parole, final discharge from incarceration of a pretrial inmate, or transfer to a Residential Reentry Center or other non-Federal facility at the conclusion of the period of confinement in which the injury occurred.
Institutions should ensure that the following steps are completed:
■ Inmate Claim for Compensation Resulting from Work Injury Form. Within 45 days before an injured inmate’s release from prison or transfer to a Residential Reentry Center, the inmate must notify the ESCA regarding his/her intentions to file a claim. He/she must complete the Inmate Claim for Compensation Resulting from Work Injury Form (BPA0658).
■ Physical Examination of Inmate by Qualified Physician. The physical examination to determine and assess the impairment must be completed as far in advance of release as possible by a qualified physician. If this is not completed, the IAC Program Coordinator must be advised.
Note: Examination findings may be documented on the reverse of form BP-A0658. Substantiated percentages of permanent or temporary impairment must be included. The completed form must be returned to the ESCA after the examination. BOP physicians not qualified in impairment assessments under American Medical Association guidelines should not complete the form regarding impairment findings.
■ Assemble All Inmate Medical Records and Forward to IAC Coordinator: The most recent BEMR or medical records of the inmate seeking compensation must be gathered and be included in the IAC packet at the time of release.

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■ Compile the IAC Packet: The ESCA must check the completed BP-A0658 and compile the inmate’s IAC Packet to send to the Inmate Accident Compensation Program Coordinator in the Central Office upon the inmate’s release. The packet should include the following:
¾ BP-A0658 (Completed). ¾ BP-A0362 (Inmate Injury Assessment and Follow-Up) or BEMR report of injury. ¾ Medical Records –
o Outpatient entries dealing with the claim from date of injury to release. (Spot-check entries before the claimed injury for possible preexisting conditions.)
o X-Ray and diagnostic procedure reports on the injury. o Consultant reports on the injury. o Hospital discharge summaries on the injury. o Report of Medical History – Use the most recent before the injury. o Report of Medical Examination – Use the most recent before the injury.
¾ BP-A0140 and lost-time follow-up report. ¾ BP-A0169s signed by inmate. ¾ BP-A0139. ¾ Witness statements (if any). ¾ Memoranda of investigations (if any). ¾ Last progress report (as it deals with marital status and release plans used in
determining amount of compensation). ¾ Photographs (if any).

15. CONSTRUCTION AND RENOVATION PROJECTS
The Environmental Safety Compliance Administrator must participate on all construction and renovation project committee meetings and must be notified of all construction and renovation projects.

a. Plan Review. Plans for renovations, alterations, additions, and new construction must be approved by the institution ESCA. The ESCA’s review focuses on compliance with occupational safety and health requirements and BOP policy.

b. Pre-Construction Meetings. The ESCA must attend pre-construction and job progress meetings to advise project staff on occupational safety and health issues.

c. Monitoring. The ESCA must monitor construction and renovation projects to ensure compliance with approved design and safety requirements. Communications with the contractor must be made through the Contracting Officer’s Technical Representative (COTR).

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d. Unsafe Work Conditions. If an unsafe work condition is observed, the ESCA must take the following steps:
■ Advise the Facilities Manager, Project Representative, and Contracting Officer of the unsafe work condition.
■ Keep a log of unsafe incidents and corrective actions. If a resolution cannot be reached, notify the CEO; Chief, Occupational Safety Compliance; RESCA; and appropriate regulatory authorities.
■ Conduct follow-up inspections to ensure corrective action occurred and continued compliance exists.
■ For imminent danger situations, see requirements in Chapter 1, Section 2 of this policy.
16. DRIVER LICENSING
For purposes of licensing, there are three categories of drivers: Inmate drivers, employee drivers, and employee incidental drivers.
a. Employee Drivers - Commercial Driver’s License (CDL). Employee drivers who operate a vehicle on public roads or highways (as defined by DOT in Title 49, CFR) requiring CDL’s must:
■ Have a valid CDL and meet Federal Motor Carrier Safety Administration Commercial Driver’s License Standards.
■ Carry Bureau identification when operating a vehicle on official business.
b. Employee Incidental Drivers. Employee drivers who operate a vehicle on or off institution grounds that does not require a CDL must:
■ Have a valid state license for the type of vehicle being operated. ■ Carry Bureau identification when operating a vehicle on official business.
Inmate Drivers – On Institution Grounds. Inmate drivers who operate vehicles or equipment on institution grounds must be issued an inmate driver/operator permit. The permit, issued by the garage foreman, must identify the vehicle or equipment the inmate is authorized to operate.
c. Inmate Drivers – Off Institution Grounds. Inmate drivers who operate vehicles or equipment off institution grounds must be issued an inmate driver/operator permit. The permit, issued by the garage foreman, must identify the vehicle or equipment the inmate is authorized to operate. The inmate driver permit must contain the following statement in the “Restrictions”

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section: “The bearer is a Federal Prisoner of the (Institution). In case of emergency call (Institution Phone).”
The inmate must have a valid state license for the type of vehicle being operated. d. Inmate Drivers – Commercial Driver’s License (CDL). Inmate drivers required to operate a commercial motor vehicle on public roads or highways (as defined in Title 49, CFR) must have a valid commercial driver’s license (CDL) and meet Federal Motor Carrier Safety Administration Commercial Driver’s License Standards.
17. SEAT BELT USE Personnel on official business must fasten seat belts when a vehicle is in motion. Seat belts must be worn by occupants of vehicles used on official business (except passengers on buses).
18. DISTRACTED DRIVING
Drivers must follow all state distracted driver laws. Regardless of state law, personnel must not engage in text messaging when driving a vehicle on official Government business.

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Chapter 2. Occupational Safety
1. HAZARD ASSESSMENT
A hazard assessment of all work areas must be conducted by the Environmental and Safety Compliance Department in conjunction with affected department head(s). When hazards cannot be eliminated, administrative and/or engineering controls must be implemented. As a last line of defense, workers must use Personal Protective Equipment (PPE) to limit exposure to hazardous environments.
The hazard assessment must:
■ Be documented in writing. ■ Identify the work area being assessed. ■ Be certified by an Environmental and Safety Compliance Department staff member. ■ Contain the name of the certifying individual. ■ Contain the date of the hazard assessment.
The hazard assessment must be updated anytime operations or work hazards change.
A copy of the hazard assessment must be provided to affected departments and made available to employees working in that area.
The affected department is responsible for providing training, including the use of PPE, to individuals assigned to an area or task addressed in a hazard assessment.
a. Personal Protective Equipment (PPE). PPE such as safety shoes, eye and face protection, hard hats, gloves, respirators, lifelines and harnesses, and hearing protection must be used when required by an applicable OSHA Regulation, or as deemed necessary by the Environmental and Safety Compliance Department. This PPE must be purchased and maintained by the department using the equipment.
b. Foot Protection. Safety shoes meeting requirements of the American Society for Testing and Materials (ASTM) are required in foot hazard areas, designated by Institution Supplement, in accordance with the Master Agreement. Toe caps or foot guards may not be worn in lieu of safety shoes.

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2. FIRING RANGES
A hazard assessment must be conducted of the firing range (BOP-owned ranges and contracted ranges) to determine any potential safety concerns with range construction or use of the range. (See Chapter 3, Section 8. for additional information on noise exposure at firing ranges.)
The range must be constructed and maintained to help prevent hazards to the staff utilizing the range. The use of railroad ties, stacked lumber, or rubber tires facing the shooter must not be used due to the possibility of lead build-up, ricochet, and back-splatter. Other items within the range area (inlets, drains, pavement, etc.) may also need to be protected to avoid ricochet.
3. WALKING-WORKING SURFACES
OSHA Standard 29 CFR 1910.21-30, Subpart D, addresses requirements for a wide variety of ladders (fixed and portable), scaffolding, walking surfaces, and guard railings used in general industry settings. Requirements contained in 29 CFR 1926 will govern temporary stairs, ladders, and working surfaces on construction/renovation sites.
The institution must develop a written Fall Protection Program to address protection of personnel working on elevated walking-working surfaces. In areas where a standard railing is utilized as a means for fall protection, the use of chain, rope, cable, or other similar material is not acceptable as a substitute for standard railing.
The following basic requirements apply to common work surfaces in this section:
a. Stairs and Walkways. Floors and stairways must be maintained in a clean, dry manner and free of nails, splinters, holes, loose boards, corrosion, snow, or ice.
Aisles and passageways, including in housing units, must be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.
b. Ladders. At a minimum, ladders must comply with the following:
■ Ladders must be equipped with functional non-slip safety feet. ■ The joints between rails and the steps must be tight and secure. ■ Ladder rungs must be kept free of grease, oil, and foreign substances that would cause a slip. ■ Wood ladders cannot be painted or stained in a manner that would cover a defect and hinder
inspection. ■ All wood components must be free of splits or damage. ■ The metal spreaders must be of sufficient size and strength and function properly.

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■ Extension ladder rope must be free of frays and damage.

Fixed ladders must comply with OSHA Standard 29 CFR 1910.23.

Ladders that are not covered by OSHA regulations (i.e., fiberglass, aluminum) must be used in accordance with manufacturer’s recommendations.

c. Scaffolding. Portable and fixed scaffolding used in general industry must meet the requirements in OSHA standard 29 CFR 1926, subpart L. Training and fall protection programs must be specific to the type of scaffolding being used.

Personnel utilizing scaffolding must be trained on scaffold assembly, inspection, and fall protection.

Unassembled scaffolding in storage must be protected from damage and weather that could deteriorate its integrity.

All planking must be Scaffold Grade as recognized by grading rules for the species of wood used.

Scaffolds must not be loaded in excess of the working load for which they are designed.

All personnel who are involved in erecting, disassembling, moving, operating, repairing, maintaining, or inspecting a scaffold must receive appropriate training to recognize any hazards associated with the use of the scaffolding and associated work.

d. Loading Docks. Loading docks four feet or more in height must be guarded by a standard railing on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.

The NFPA Life Safety Code requires a guardrail on any section of the loading dock that is part of a required exit, when the dock height is 30 inches or more.

If mechanical means to secure trucks or trailers to the loading dock are not available, signs must be posted designating that the use of wheel chocks is required.

e. Lofts, Mezzanines, Work Platforms. All lofts, mezzanines, and work platforms designed for storage must have a posted load limit. Storage in excess of the posted load limit is not permitted.

f. Work Performed on Roofs. Work performed on roofs may include activities such as facilities maintenance, Correctional Services security inspections, etc.

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When work is performed less than 15 feet from the roof edge, a guardrail system, safety net system, travel restraint system, or personal fall arrest system must be in place.

When work is performed at least 15 feet or more from the roof edge, a guardrail system, safety net system, travel restraint system, personal fall arrest system, or a designated area must be in place. Fall protection is not required provided the work is both infrequent and temporary, along with implementing and enforcing a work rule prohibiting employees from going within 15 feet of the roof edge without the use of fall protection.

4. PAINTING OPERATIONS

Individuals using spray guns must wear Personal Protective Equipment in accordance with the institution’s hazard assessment.

Portable airless spray gun nozzles must be kept clear of body parts due to the extreme pressure.

When flammable or combustible materials are sprayed, booths and operations must comply with 29 CFR 1910.107 and NFPA 33.

Each spray area must be provided with mechanical ventilation that is capable of confining and removing vapors and mists to a safe location and confining and controlling combustible residues, dusts, and deposits.

Spray areas equipped with overspray collection filters must have visible gauges, audible alarms, or an effective inspection program to ensure that the required air velocity is being maintained.

5. CONFINED SPACE PROGRAM

OSHA Standard 29 CFR 1910.146 addresses requirements for a wide variety of permit and nonpermit required confined spaces. Only trained entrants, attendants, and entry supervisors will be allowed to participate in the permit-required confined space activities.

The Facilities Department shall cover the costs of the program.

Institutions must develop a written permit-required confined space program, including:

■ Institution confined space survey. ■ Confined space identification. ■ Permit system. ■ Equipment.

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■ Roles and responsibilities. ■ Rescue services. ■ Training.
a. Institution Confined Space Survey. The ESCA and Facilities Manager must perform an institution survey to identify permit-required and non-permit-required confined spaces. The results of the survey and space classifications must be documented as part of the written confined space program.

b. Confined Space Identification. Permit required spaces must be identified with a warning sign or other equally effective method to prevent unauthorized entry.
c. Permit System. A permit system to authorize entry into a permit-required confined space must be in place. The ESCA must be notified prior to any confined space entries.
On expiration of the permit, it must be returned to the Environmental and Safety Compliance Department.
All issued permits must be retained for a minimum of three years.
d. Equipment. Institutions with permit-required confined spaces must have the following equipment available:
■ Testing and monitoring equipment (including calibration equipment) with the ability to monitor oxygen, combustible gases and vapors, and toxic gases and vapors.
■ Ventilating equipment capable of maintaining acceptable entry conditions. ■ Communication equipment. ■ Personal Protective Equipment. ■ Lighting equipment. ■ Barriers to guard entrances. ■ Equipment to rescue or retrieve entrants.
Institution-made equipment is prohibited.
Equipment must be calibrated, tested, and maintained in accordance with manufacturers’ or testing standard requirements.
e. Roles and Responsibilities. Individuals involved with confined space entry will have specific roles and responsibilities. All individuals must receive training in their specific roles and responsibilities.

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Inmates are not permitted to fulfill the role of the entry supervisor and/or attendant in permitrequired confined space entry.
f. Rescue Services. Institutions must provide a means of rescue for individuals involved with permit-required confined space entry.

(1) Outside Rescue Services. Institutions using an outside rescue service must:

■ Ensure the rescue services have the ability to respond in a timely manner with appropriate equipment.
■ Provide a copy of the written permit-required confined space program to the outside rescue service.
■ Provide the rescue team or service an opportunity to inspect and use institution confined spaces for training purposes.
■ Notify the outside rescue team or service prior to entry to verify their response availability. This contact must be documented on the permit form.

(2) In-house Rescue Team. Institutions using an in-house rescue team must:

■ Provide team members with PPE and all equipment needed to conduct a permit-required confined space rescue.
■ Train team members to perform assigned rescue duties. ■ Ensure one team member trained in CPR and basic first aid is available during entry. ■ Ensure team members practice making permit-required confined space rescues at least once
every 12 months.

g. Training. All affected personnel must receive training as outlined in this section. The training must be documented and contain the following information:

■ Name of participant. ■ Date of training. ■ Name and signature of instructor.

6. CONTROL OF HAZARDOUS ENERGY (LOCKOUT/TAGOUT)

OSHA Standard 29 CFR 1910.147 addresses requirements for an energy control program. Institutions must develop a written Energy Control Program that includes, at a minimum:

■ Energy control procedures. ■ Periodic inspections. ■ Employee training.

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■ Lockout devices and equipment. ■ Inmate Locks. ■ Shift Change, Transfer of Authority, Outside Service Personnel (Contractors).
a. Energy Control Procedures. Specific energy control procedures must be developed for all equipment with multiple energy sources. Affected departments must assist the ESCA in the identification of equipment/systems requiring energy control procedures.
Energy control procedures must contain the following elements:
■ Scope. ■ Purpose. ■ Authorized personnel. ■ Rules. ■ Techniques to control hazardous energy, including:
¾ Specific statement of the intended use of device. ¾ Specific steps for shutting down, isolating, blocking, and securing equipment. ¾ Specific steps for the placement, removal, and transfer of devices. ¾ Specific requirements for testing effectiveness of energy control measures.
b. Periodic Inspections. An annual periodic inspection of each energy control procedure must be conducted by an authorized employee. The authorized employee performing the inspection may be someone who previously has or currently implements the energy control procedure being inspected, as long as he/she is not implementing any part of the energy control procedure while it is being inspected. The periodic inspection must include every employee authorized to utilize the procedure being inspected. The inspection must be certified by documenting the periodic inspection. Documentation must include:
■ Machine or equipment being inspected. ■ Date of the inspection. ■ Employee(s) included in the inspection. ■ Person performing the inspection. ■ Signature of the person certifying the inspection.
The person certifying the annual inspection must be someone other than the inspector or employees included in the inspection.
c. Training. Training must be provided for the following individuals:

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(1) Authorized Personnel. Authorized personnel must receive training in the following:
■ Recognition of hazardous energy sources. ■ Magnitude of the energy available in the workplace. ■ Methods necessary for energy isolation and control.
(2) Affected Personnel. Affected personnel must be instructed in the purpose and use of energy control procedures.
(3) All Other Personnel. All other personnel must be instructed in the prohibition of attempting to reenergize equipment that has been locked/tagged out.

Additional training must be conducted for all authorized and affected personnel whenever:

■ There is a change in their job assignments. ■ There is a change in machines, equipment, or processes that present a new hazard. ■ There is a change in the energy control procedure.

Additional training must also be conducted whenever a periodic inspection reveals retraining is necessary.

d. Lockout Devices and Equipment. Devices used to secure energy sources must be:

■ Standardized, identifiable, and durable. ■ Capable of withstanding the environmental and physical demands placed on them. ■ Not used for any other purpose.

e. Inmate Locks. Authorized inmates must be issued and utilize designated color-coded combination locks with master key access when working on circuits/equipment requiring lockout/tagout.

f. Shift Changes, Transfer of Authority, Outside Service Personnel (Contractors). If a machine remains locked out over a period of time or repairs continue by other employees through more than one shift, the oncoming employee affixes his/her lock to the machine before the off going employee removes his/her lock. The off going employee briefs the oncoming employee, then removes his/her lock. Other means of accommodating shift change must be approved through the Central Office Safety Branch.

When outside servicing personnel are engaged in activities covered by this section, the ESCA must review the outside contractor lockout procedures prior to commencing work. The department affected must ensure outside personnel comply with approved energy control

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procedures. If outside employers do not have documented lockout or tagout procedure(s), they must ensure their staff comply with the institution’s written energy control procedures.
7. TIRE SERVICE
OSHA Standard 29 CFR 1910.177 addresses requirements for servicing multi-piece and singlepiece rim wheels used on large vehicles such as trucks, tractors, trailers, buses, and off-road machinery.
The use of a local tire service vendor to repair multi-piece rim wheels is recommended.
This standard does not apply to the servicing of rim wheels used on automobiles, or on pickup trucks and vans using automobile tires or truck tires designated light trucks (LT).
The ESCA must ensure that a facility-specific tire service and inflation procedure is developed to address tire maintenance activities. Tire service charts must be posted in the tire service area.
a. Training. Personnel inflating tires and servicing single and multi-piece rims must be trained on:
■ Hazards associated with tire service and inflation. ■ Institution-specific procedures. ■ Use of tire service charts. ■ Reading tire pressure placards. ■ Restraining devices and barriers for inflating tires on multi-piece rims (bolted and unbolted
from vehicles).
b. Equipment. Airline assemblies used for inflating tires must consist of:
■ Clip-on chuck. ■ In-line valve with a pressure gauge or a pre-settable regulator. ■ Sufficient hose length between the clip-on chuck and the in-line valve to allow the employee
to stand outside the trajectory (path of travel during explosion).
8. POWERED INDUSTRIAL TRUCKS
OSHA Standard 29 CFR 1910.178 addresses requirements for powered industrial truck operation used in general industry settings.

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A Powered Industrial Truck (PIT) is a mobile, power-propelled truck used to carry, push, pull, lift, stack, or tier materials. The forklift is the most common PIT; however, utility carts (Cushman, EZ Go, Taylor-Dunn, Gator, etc.) may fall under this designation.

Powered industrial trucks must be operated and maintained in accordance with manufacturers’ requirements.

Modifications to or the use of attachments with the powered industrial truck must be performed or approved in writing by the manufacturer.

The operator manual must be maintained in a legible condition and readily accessible within the powered industrial truck operational area. It is recommended additional copies of the operator manual be maintained in the Environmental and Safety Compliance Department.
A survey must be conducted to identify powered industrial trucks being operated within the institution. Upon completion of the survey, each institution must ensure a program is in place for all powered industrial trucks. The program must meet the requirements of 29 CFR 1910.178, and any additional requirements noted in the manufacturer’s operator manual.
a. Training. Operators of these vehicles must be trained to operate the vehicle in accordance with the manufacturer’s recommendations as outlined in the operator manual. Training must be documented and include, at a minimum:
■ Name of the operator. ■ Date of training. ■ Date of the evaluation. ■ Name and signature of the person(s) performing the training or evaluation.

An operator’s performance must be re-evaluated every three years.

Retraining must be performed when the operator is involved in an accident.

b. Inspections. A pre-use inspection of the powered industrial truck must be completed each shift. This inspection must be documented.
Pre-use inspection documentation must be retained for a minimum of 30 days.

Inspections are not required during a shift when the vehicle is not being operated.

Additional visual inspections must be conducted throughout the shift any time the vehicle has been left unattended. These inspections are not required to be documented.

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Powered industrial trucks must be removed from service until all discrepancies identified on inspections are corrected.
Powered industrial trucks must be equipped with a:
■ Cage over the driver’s compartment. (if capable of lifting loads above the height of the driver).
■ Seat belt or similar restraints (if required by the manufacturer). ■ Backup alarm that sounds when the truck reverses. ■ Strobe light (if vehicle is used indoors). ■ Horn.
Vehicles with modifications not approved by the manufacturer, defective or damaged safety devices, operational systems, controls, and structural features must be removed from service and “red tagged” until repaired by authorized service personnel.
Battery charging and propane fuel tank storage must be at designated locations approved by the ESCA.
Powered industrial trucks must not be used to tow trailers unless approved by the manufacturer.
9. PERSONNEL LIFTS (AERIAL LIFTS/SCISSOR LIFT/BOOM TRUCK)
Personnel lifts are governed under various OSHA and ANSI standards, depending on the type of personnel lift. Manufacturers’ requirements must be followed when operating and maintaining personnel lifts.
a. Training. Only properly trained and authorized personnel are permitted to operate personnel lifts. At a minimum, training must consist of the requirements outlined in the manufacturer’s operating and maintenance manual.
The operator must be trained on the same model of personnel lift or one having operating characteristics consistent with the one used during work site operation.
Training must consist of a combination of formal instruction, practical training, and evaluation of the operator’s performance in the workplace.
Training must include the actual operation of the lift for a sufficient period of time to demonstrate proficiency and knowledge in the actual operation of the lift.

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Training must be documented and include, at a minimum:
■ Name of operator. ■ Date of training. ■ Name and signature of the person(s) performing the training or evaluation. ■ List of equipment covered by the training.
b. Inspections. A pre-use inspection of the personnel lift must be completed each shift. This inspection must be documented.
Pre-use inspection documentation must be retained for a minimum of 30 days. Inspections are not required during a shift when the personnel lift is not being operated.
Additional visual inspections must be conducted throughout the shift any time the personnel lift has been left unattended. These inspections are not required to be documented.
An annual inspection must be performed by a qualified source, in accordance with ANSI standards. The department accountable for the lift is responsible for funding and scheduling annual inspections.
Personnel lifts must be removed from service until all discrepancies identified on inspections are corrected.
An operator manual must be physically located on each personnel lift at all times. It is recommended additional manuals be maintained in the Environment and Safety Compliance Department.
The department operating personnel lifts is responsible for purchasing PPE and fall protection equipment appropriate for tasks being performed and maintaining appropriate inspection records for the equipment.
10. MACHINE GUARDING
OSHA Standards 29 CFR 1910.211 through 1910.219 addresses requirements for machine guarding. In addition to general requirements for all machines outlined in 29 CFR 1910.212, a wide variety of equipment types and applications must be evaluated to determine machine guarding requirements. The ESCA is responsible for making final determinations regarding machine guarding requirements:

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■ Equipment that may cause injury during sudden or unexpected startups must have anti-restart devices.
■ Guards must be provided at the point of operation to protect operators from injury. ■ Power transmission belts, pulleys, gears, shafts, and moving parts must be guarded. ■ Power controls must be within the operator’s reach without leaving their positions at the
point of operation. ■ Stationary equipment must be anchored to the floor to prevent “walking” due to vibration.
For abrasive wheel machinery:
■ Work rests on bench/floor grinders must be kept adjusted closely to the wheel with a maximum opening of 1/8 inch.
■ Tongue guards on bench/floor grinders must be kept adjusted to the diameter of the wheel, with a maximum opening of 1/4 inch.
■ Bench and pedestal grinders must be permanently mounted. ■ Portable grinders (wheels greater than 2” in diameter) must have safety guards. ■ The top half of the wheel on portable grinders must be enclosed.
11. CLEANING WITH COMPRESSED AIR
Air lines used for cleaning must be reduced below 30 psi and have nozzles with venturi-type features for chip guarding. Cleaning with air lines is not permitted in electronics demanufacturing (or similar) operations, where dust with heavy metals could be dispersed.
12. LAWN EQUIPMENT
Operators of lawn equipment must receive equipment-specific training during Initial Job Orientation (IJO) in accordance with the manufacturer’s recommendations as outlined in the operator manual.
Operators of equipment (edgers, line trimmers, leaf blowers, lawn vacuums, chain saws, mowers, and similar equipment) must use PPE as identified in the institution hazard assessment.
Operating controls must be clearly identified. Other than ergonomic adjustment of seats and controls engineered into the equipment design, modification of operator controls and safety devices is prohibited.
Riding equipment must not be operated on inclines exceeding the manufacturer’s limit.

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13. WELDING, CUTTING, AND BRAZING
OSHA Standard 29 CFR 1910.251 through 1910.255 addresses requirements for welding, cutting, and brazing in General Industry environments. Refer to 29 CFR 1926 for constructionrelated activities.
All welders must receive training regarding proper safety precautions prior to conducting any welding operations.
Appropriate PPE must be provided.

Mechanical ventilation must be provided when cutting and welding operations are conducted in any of the following areas:

■ Spaces with less than 10,000 cubic feet per welding machine. ■ Rooms/areas with a ceiling less than 16 feet. ■ Confined spaces.

The ventilation must be at the minimum rate of 2,000 cubic feet per minute per welding machine, except where local exhaust hoods and booths are used in accordance with the OSHA standard.

Respiratory protection may be used in lieu of mechanical ventilation with the approval of the ESCA.

Other personnel exposed to the same atmosphere as the welders must be protected from the hazards associated with welding operations.

Welding cables and insulation must be undamaged and cable terminals must be guarded from accidental contact.

In arc welding operations, cables with splices within 10 feet of the holder must not be used. The welder must not coil or loop welding electrode cable around parts of his/her body. Cables with damaged insulation or exposed bare conductors must be replaced.

All regulators and hoses must be checked daily for damage or worn parts.

On oxy-fuel welding and cutting equipment, a flashback arrestor must be installed between the regulator and hoses of both tanks.

Where a cylinder is designed to accept a cap, valve protection caps must always be in place, hand-tight, except when cylinders are in use or are connected for use.

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Cylinders on welding equipment being stored and not in use must have the regulator disconnected and valve protection caps in place.
14. HOT WORK PLAN
The ESCA must ensure that a written hot work plan is developed. The plan must outline a permit process for operations. A written hot work permit must identify the area where hot work will be conducted and all required precautions.
Before hot work is permitted, the area must be inspected by the Environmental Safety Compliance Department.
The area must be made safe by removing combustibles or protecting combustibles from ignition sources.
Noncombustible or flameproof screens or shields must be provided to protect bystanders.
Appropriate PPE must be provided to personnel conducting hot work operations.
Hot work permits are not required for operations conducted in the welding shop area.
Issued hot work permits must be retained for a minimum of three years.
15. ELECTRICAL
OSHA Standard 29 CFR 1910.301 through 1910.399 addresses Electrical Requirements in General Industry Environments. Refer to 29 CFR 1926 for construction-related activities. In addition, all electrical installations must be in accordance with the latest edition of the National Electric Code.
a. Non-Qualified Personnel. Non-qualified staff/non-facilities staff and inmates are prohibited from working on any energized electrical circuits or equipment.
b. Protective Equipment. Protective equipment must be provided, maintained, and tested in accordance with the Program Statement Facilities Operations Manual.
c. High Voltage (Over 600 Volts). Inmates are prohibited from working on circuits/equipment with a rated capacity in excess of 600 volts.

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Accessible aboveground power lines must be marked “Danger High Voltage.”

DANGER HIGH VOLTAGE

PELIGRO VOLTAJE ALTO

d. Ground Fault Protection. Ground fault protection must comply with the National Fire Codes for single-phase receptacles in wet or damp areas. At a minimum, protection must be provided for:

■ Receptacles within six feet of sinks, toilets, and showers. ■ Receptacles in kitchen areas.
In addition, ground fault protection must be provided for drinking fountains and vending machines.

A Ground Fault Circuit Interrupter (GFCI) must be utilized with corded hand-held power tools and extension cords used during construction or maintenance activities.

The ESCA must evaluate the need for GFCI protection used during floor care activities.

e. Electrical Maintenance

■ Each electrical box must have a cover, faceplate, or fixture canopy. ■ Sufficient access and work space must be provided and maintained around all electrical
equipment to permit ready and safe operation and maintenance. ■ Electrical panel boards, boxes, cabinets, and switch enclosures must be covered or isolated to
prevent accidental contact with energized parts, and to protect electrical switches, relays, and wiring from damage. ■ Connections, joints, and fittings on all cable, conduits, and raceways must be tight. ■ Continuity of grounding must be maintained. ■ Metallic boxes, enclosures, and conduits must be free of rust and corrosion. ■ Disconnect switches (including service entrance, feeders, and branch circuits) must be legibly and durably marked at the point of origin to indicate the area/equipment controlled by each switch.

f. Flexible Cords. Flexible cords (and extension cords) must not:

■ Be used as a substitute for fixed wiring. ■ Run through a wall, ceiling, floor, or under a carpet/rug. ■ Run through a doorway, window, or similar opening. ■ Be attached to a building surface.

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■ Be concealed behind a wall, ceiling, or floor.
Flexible cords must not be altered.
Flexible cords must be constructed in a manner that does not expose the user to any currentcarrying components except the prongs, blades, or pins.
Flexible cords must not be used when grounding blades/pins are broken or missing.
Flexible cords must not be used if frayed or damaged.
Junction boxes designed for use in fixed wiring applications must not be used as part of a
flexible/extension cord.
16. EXCAVATIONS/TRENCHING
OSHA Standard 29 CFR 1926.650 through 1926.652 addresses requirements for excavations and trenching.
The Facilities Manager and ESCA must approve all excavations/trenching operations prior to the start of work.
Safe access and egress must be provided in trench excavations greater than four feet deep. Access and egress points must be located within 25 feet of all workers.
An excavation or trench greater than five feet deep must be shored or sloped to the angle of incidence; or another method of protection, such as a trench box designed and constructed in accordance with OSHA standards, must be provided for workers.
17. COMPRESSED GAS STORAGE
Stored gas cylinders must:
■ Be secured to prevent tipping. ■ Have valves closed. ■ Have protection caps in place.
Compressed gas cylinders must be stored away from radiators and other heat sources, in a wellventilated, dry location, at least 20 feet from highly combustible material.

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Compressed gas cylinders must be stored away from elevators, stairs, or exits. Cylinders must be secured to prevent them from being knocked over or damaged.
Oxygen cylinders must be stored at least 20 feet from fuel-gas cylinders or combustible materials such as oil or grease, or be separated by a wall at least five feet high with a fire resistance rating of at least one-half hour.
18. CHLORINATION ROOMS
Chlorination rooms must be secured and equipped with mechanical ventilation that is on continuously or automatically activates when the door opens.
Chlorine cylinders must:
■ Be secured to prevent tipping. ■ Have valves closed when not in use. ■ Have protection caps in place when not in use.
Chlorination rooms must have an electronic leak detection and alarm device that gives an audible and visual alarm.
19. KILNS
Dry clay (slip powder) must not be used due to silica hazards and possible asbestos. The use of premixed clay is allowed.
Sanding of dry ceramic items is prohibited.
Kilns must be enclosed in a 1-hour rated room with self-closing doors. Kilns require an external exhaust for adequate ventilation when in operation.
20. PORTABLE POWER TOOLS AND HAND-HELD EQUIPMENT
OSHA Standard 29 CFR 1910.241 through 1910.244 addresses requirements for portable power tools and other hand-held equipment used in general industry. Refer to 29 CFR 1926 for construction-related activities.
A wide variety of equipment types and applications must be evaluated to determine proper requirements. The ESCA is responsible for making the final determination regarding safety requirements.

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Power tools must be equipped with functional guards or shields. Hand tools must be free of visible signs of damage or severe wear. Broken tools must be removed from service.

21. CRANES

OSHA Standard 29 CFR 1910.179 through 1910.184 addresses requirements for cranes, derricks, and slings used in general industry environments. Refer to 29 CFR 1926 for construction-related activities.

Cranes must be inspected and tested in accordance with the manufacturer’s recommendation.

a. Inspections. At a minimum, operators must conduct a visual inspection of the crane at the beginning of the work day.

In addition to the daily visual inspection, hooks and hoist chains/cables must be inspected monthly and documented on a written certification record that includes:

■ Date of inspection. ■ Signature of person performing the inspection. ■ Serial number or other identifier of the hook or chain inspected.

A complete inspection of all components of the crane must be performed at least annually. The inspection must be performed by competent crane inspector.

b. Testing. Prior to initial use, new, altered, or extensively repaired cranes must be operationally tested for hoisting, lowering, trolley travel, bridge travel, limit switches, locking, and safety devices. They must be load-tested by or under the direction of a competent inspector, in compliance with 29 CFR 1910.179.

The crane must not be placed in service if the inspection or test shows any condition adversely affecting the safety of the equipment.

Documentation for inspections and testing must be retained for a minimum of three years.

22. TRANSPORTATION

Vehicles used for transporting persons must be fitted with seats or benches that are rigidly fixed to the vehicle.

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There must be no more people riding on a vehicle than there are seats.
Drivers must not move the vehicle until all passengers are seated. Passengers cannot ride standing up, with legs dangling over fenders, bumpers, or tailgates, or on loads that may shift or tip.
People may not be transported in the beds of trucks.
Drivers may not allow persons to get on or off a vehicle in motion.
Heavy Equipment. Heavy equipment and farm equipment must be transported only on lowboy trailers specifically made to haul this type of equipment.
Heavy equipment must be chained and blocked on the trailer. Any truck/trailer combination used to move heavy equipment on the highways must be driven by a person with a valid state CDL.
The Federal Highway Administration’s (49 CFR Parts 350-399) Motor Carrier Safety Regulations must be followed.
Any movement or loading of heavy equipment by inmates must be under staff supervision.
Keys must be removed from any truck or other motorized equipment left unsupervised.
Only trained personnel are permitted to operate heavy equipment and farm machinery.
All tractors, bulldozers, etc., over 20 H.P. must have seatbelts and rollover protection. Equipment and farm machinery unable to reach a maximum speed of 25 mph when driven on public roads must display a “slow moving vehicle” emblem.

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Chapter 3. Occupational Health
1. INJURY RECORDKEEPING
The Environmental and Safety Compliance Department is responsible for maintaining the following documentation for work-related recordable injuries:
■ OSHA 300, Log of Work-Related Injuries and Illnesses. ■ OSHA 300a, Summary of Work-Related Injuries and Illnesses. ■ OSHA 301, Injury and Illness Incident Report.
A recordable injury or illness is defined as any injury or illness resulting in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.
OSHA’s recordable injury definition and recording requirements should not be confused with employee compensation definition and entitlement. See the Program Statement Workers’ Compensation Program.
a. OSHA 300, Log of Work-Related Injuries and Illnesses. OSHA 300, Log of WorkRelated Injuries and Illnesses, is used to chronologically record reportable work-related injuries during the calendar year. The agency is required to log injury entries on the OSHA 300 within 7 calendar days of receiving information that a recordable injury or illness has occurred.
It is administratively acceptable to keep separate OSHA 300 logs for staff and inmate workers.
The individual completing the OSHA 300 must provide a complete injury description. Lost works days or work days with a job transfer or restriction must be recorded up to 180 calendar days. The OSHA 300 is a living document; information on the log must be updated during the five-year retention period.
The following injuries and illnesses are considered privacy concern cases; the employee’s name may not be placed on the OSHA 300:
■ An injury or illness to an intimate body part or the reproductive system. ■ An injury or illness resulting from a sexual assault. ■ Mental illnesses. ■ HIV infection, hepatitis, or tuberculosis. ■ Needlestick injuries and cuts from sharp objects that are contaminated with another person’s
blood or other potentially infectious material.

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■ Other illnesses, if the employee voluntarily requests that his/her name not be entered on the log.

In such cases, enter “privacy case” followed by a case number in the space normally used for the employee’s name on the OSHA 300 log. A second log should be kept that coordinates the Privacy Case number with an injured employee’s name in such cases.

b. OSHA 300a, Summary of Work-Related Injury and Illnesses. OSHA 300a, Summary of Work-Related Injury and Illnesses, must be completed by the Environmental and Safety Compliance Department at the end of the calendar year. The completed form must be signed by the Warden or CEO and posted on a staff bulletin board and an inmate bulletin board beginning February 1 through April 30 for the preceding calendar year. The posting location must be in a conspicuous place where notices to employees are customarily posted. OSHA 300a forms are not required to be updated after the form is completed and signed.

c. OSHA 301, Injury and Illness Incident Report. An OSHA 301, Injury and Illness Incident Report Form, must be completed for all recordable cases logged on the OSHA 300 form. The Environmental and Safety Compliance Department is responsible for reviewing completed OSHA 301 forms for accuracy and maintaining forms with injury recordkeeping or compensation records.
d. Record Submission to OSHA. Records must be submitted to OSHA in accordance with the provisions of 29 CFR Parts 1960 and 1904.

e. Record Retention. OSHA recordkeeping documentation must be retained for a minimum of five years.

2. RESPIRATORY PROTECTION PROGRAM

OSHA Standard 29 CFR 1910.134 addresses requirements for a Respiratory Protection Program. The ESCA is the program administrator responsible for identifying respiratory hazards, selecting the appropriate NIOSH-certified respirator and filter, and coordinating required elements of an effective program.

a. Written Program. The ESCA must develop a comprehensive written program that addresses institution-specific respiratory hazards. The written program must be updated as necessary to reflect any changes in the workplace that affect respirator use.

The written program must address the following elements:

■ Procedures for selecting respirators for use in the workplace.

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■ Medical evaluation procedures. ■ Fit-testing procedures. ■ Procedures for proper use of respirators in routine and reasonably foreseeable emergency
situations. ■ Procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding,
and otherwise maintaining respirators. ■ A change schedule for canisters and cartridges. ■ Procedures to ensure adequate air quality, quantity, and flow of breathing air for atmosphere-
supplying respirators. ■ Training requirements. ■ SCBA Procedures. ■ Procedures for regularly evaluating the effectiveness of the program.
b. Medical Evaluation Procedures. Personnel participating in the Respiratory Protection Program must initially complete the OSHA medical questionnaire and be medically cleared by a physician or other licensed health care professional (PLHCP) prior to respirator use.
The PLHCP must be provided information concerning the duration and frequency of respiratory use, the type and weight of the respirator, physical work, exertion, other protective equipment required for the task, and the anticipated work environment temperature and humidity. After reviewing an employee’s medical questionnaire and work conditions, and conducting an inperson exam if indicated, the PLHCP makes a medical determination approving or denying the employee’s ability to wear a respirator.
The PLHCP must provide only the following information:
■ Any limitations on respirator use related to the medical condition of the employee, or relating to the workplace conditions in which the respirator will be used, including whether or not the employee is medically able to use the respirator.
■ The need if any for follow-up medical evaluations. ■ A statement that the PLHCP has provided the employee with a copy of the PLHCP’s written
recommendation.
This decision must be documented and provided to the ESCA. The original questionnaire and a copy of the approval decision must be retained in the worker’s health record.
Full medical evaluation questionnaires are not necessary every year. The individual being fittested must provide written affirmation that there have been no changes in his/her medical status since the last full medical evaluation. If any changes are reported, a full medical evaluation must be completed prior to respirator use.

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Note. The privacy rule applies to all forms of individuals’ protected health information, whether electronic, written, or oral.

c. Fit-Testing. All tight-fitting respirators require a fit test prior to initial use and at least annually thereafter.

In addition, a fit test is required whenever changes occur that could affect respirator fit. Such conditions include, but are not limited to, facial scarring, dental changes, cosmetic surgery, or an obvious change in body weight.

The fit test must not be conducted if there is any hair growth between the skin and the facepiece sealing surface, such as stubble beard growth, beard, mustache, or sideburns that cross the respirator sealing surface.

d. Facepiece Seal Protection. If an employee wears corrective glasses or goggles or other PPE, such equipment must be worn in a manner that does not interfere with the seal of the facepiece.

e. Training. Personnel participating in the respiratory protection program must be instructed in the respiratory hazards to which they are potentially exposed during routine and emergency situations. Training must be completed at least annually, and may be conducted more often if necessary. Respirator training must include:

■ Why the respirator is necessary and how improper fit, usage, or maintenance can compromise its protective effect.
■ The limitations and capabilities of the respirator. ■ How to use the respirator effectively in emergency situations, including situations in which
the respirator malfunctions. ■ How to inspect, put on and remove, use, and check the seals of the respirator. ■ How to recognize medical signs and symptoms that may limit or prevent the effective use of
respirators.

The training must be conducted in a manner that is understandable to the employee.

The training must be provided prior to requiring the employee to use a respirator in the workplace.

f. Respirator Maintenance. Respirators must be maintained, cleaned, and disinfected as necessary, and stored in a manner to protect them from physical damage. At a minimum, respirators must be inspected before use and during cleaning. Inspection must include an examination of all components in accordance with the manufacturer’s requirements.

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g. SCBA Procedures. SCBA must be provided to facilitate evacuation of building occupants. SCBA must be stored in multiples of two in locations determined by the ESCA. In addition, SCBA must be:

■ NFPA-compliant and NIOSH-certified. ■ Equipped with one-hour-rated air cylinders. ■ Recharged when air pressure falls below 90% of the rated capacity. ■ Used in pairs with a two person back-up team equipped with SCBA available.

h. Record Retention. Records for the following must be maintained:

■ Medical evaluation documentation must be maintained for the duration of employment plus 30 years. This documentation must be maintained in the personnel medical file.
■ Fit-test records must be maintained for respirator users until the next fit test is administered. ■ Training records must be maintained for respirator users until the next training session is
administered.

3. HAZARD COMMUNICATION

OSHA Standard 29 CFR 1910.1200 addresses the requirement for a Hazard Communication Program. The ESCA is the technical expert responsible for evaluating and approving the use of chemical products.

a. Written Program. A written Hazard Communication Program must be developed to communicate chemical information and hazards. The written program must include:

■ Safety Data Sheets. ■ Labels and other forms of warning. ■ Employee information and training.

b. Safety Data Sheets (SDS). SDS must be readily accessible to employees when they are in their work area.

c. Labels and Other Forms of Warning: When possible, hazardous chemicals must be stored in their original containers with labels intact. If chemicals are dispensed to other containers, those containers must be labeled with substantially the same information as the original container.

d. Training. Personnel working with or in the vicinity of hazardous chemical products must be provided appropriate training. At a minimum, the training must include:

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■ Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area.
■ The hazards of the chemicals in the work area. ■ Measures employees can take to protect themselves from these hazards. ■ The details of the Hazard Communication Program, including an explanation of the labels
received on shipped containers and the workplace labeling system, and the SDS, including the order of information and how employees can obtain and use the appropriate hazard information.
Training must be completed at the time of an initial assignment, and whenever a new chemical hazard is introduced into a work area.
4. CHEMICAL CONTROL AND ACCOUNTABILITY
A written plan must be developed to include policy, procedure, and practice to govern the control and use of all flammable, toxic, and caustic materials.
Institution rules on use and storage of hazardous products must be based on their relative hazards. Information on the relative hazards can be obtained by reviewing the SDS and/or other material provided by the chemical manufacturer.
Approval must be obtained from the Environmental and Safety Compliance Department prior to purchase of any new chemical. In addition, the ESCA must approve all chemicals sold through the commissary.
Gasoline/diesel/propane must be controlled and supervised in accordance with the Program Statement Correctional Services Procedures Manual.
For all other hazardous products, the ESCA determines the level of supervision. Hazardous products, as determined by the ESCA, must be inventoried and controlled in accordance with the Correctional Services Procedures Manual.
Care must be exercised in storing incompatible chemicals so that inadvertent mixing does not occur.
Inmate-type combination locks must not be used to secure toxic, flammable, or caustic materials.

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5. TOXIC AND HAZARDOUS SUBSTANCES AND LEAD
29 CFR 1910.1000 of OSHA regulations is the governing authority for determining employees’ exposure to any material listed in table Z-1, Z-2, or Z-3 of that section. A determination of noncompliance with permissible exposure limits (PELs) requires measurement and documentation of an overexposure to at least one employee. For air contaminants with PELs, sampling must be conducted by a qualified source.

When testing indicates controls are needed to prevent atmosphere contamination, engineering control measures must be used if possible (e.g., enclosure or confinement of the operation, general and local ventilation, and substitution of less toxic materials).
a. Lead. Projects involving lead must comply with Federal, state, and local laws and regulations. Guidelines from 29 CFR 1926, Lead Exposure in Construction, are the minimum standards for operational and maintenance procedures. Before beginning any work involving lead, the ESCA must review the project.
Personnel who have received training and follow proper health and safety requirements may work on projects where lead-contaminated materials are found.

Lead paint may only be used and stored in Bureau facilities if approved by the NESCA.

Indoor firing ranges used by BOP staff (whether owned and operated by the BOP or contracted) must have properly permitted exhaust ventilation engineered to maintain airborne lead particulate concentrations below 30 micrograms per cubic meter (30 ug/m³) as an 8-hour timeweighted average.
b. Asbestos. If a substance is suspected to be an asbestos-containing material (ACM), it must be handled as such until proven otherwise by laboratory analysis. Except for UNICOR brake shoe and clutch operations, at no time may known or suspected ACM be removed or disturbed without the approval of the ESCA and the Facilities Manager on an “Asbestos Work Permit.”

Other than small-scale emergency repair/cleanup or UNICOR brake or clutch work, projects involving asbestos must be contracted and meet the requirements of 29 CFR 1926. Inmates must not work on projects that involve abatement or repair of asbestos, except UNICOR inmates completing brake or clutch work who have received verifiable training. These inmates may inspect, remove, and repair asbestos brake and clutch assemblies per 29 CFR 1910 Subpart Z.

Qualified staff may perform short-duration, small-scale operations involving no more than one glove bag of asbestos-containing material per 29 CFR 1926. Examples: pipe repair, valve replacement, and patch or repair jobs on asbestos insulation.

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c. Respirators and Protective Clothing. Work involving known or suspected ACM requires (at a minimum) half-face respirators with filters and disposable coveralls.
Respiratory protection and disposable full-body coveralls must be worn by personnel doing asbestos brake or clutch work until initial personal air monitoring indicates asbestos levels below the OSHA exposure limit.
d. Automotive Work. Except for UNICOR brake and clutch operations, institutions must never allow personnel to replace or remove asbestos-lined equipment from a vehicle, including brake pads, brake shoes, and clutch linings.
Contract work must be done on an as-needed basis until asbestos-containing material is removed and documented in the vehicle file. Documentation must indicate “non-asbestos replacement parts” and the installation date.
These procedures also apply to Automotive Vocational Training (VT) programs. Mock training aids using non-asbestos-containing materials may be used instead of hands-on training. “Live” work may only be done on documented non-asbestos-containing materials.

e. Responsibilities. The ESCA must ensure that:

■ Monthly inspections document needed repairs on known or suspected ACM. Institutions with documentation that they are free of asbestos-containing material can eliminate these inspections.
■ Work orders are forwarded to the Facilities Manager, who must ensure:
¾ New projects potentially involving asbestos removal are presented to the Work Programming Committee.
¾ Proper work procedures are followed by facilities staff working with asbestos. ¾ PPE is provided and used (UNICOR funds PPE for its facilities). ¾ Waste generated during facilities-related asbestos work is disposed of properly.
The UNICOR Factory Manager must ensure:
■ Staff supervising brake and clutch repair operations receive training from an outside source, per 29 CFR 1910 Subpart Z. This qualifies the supervisor to train inmates who perform asbestos brake removal.
■ Inmates who work on known or assumed asbestos-containing brakes and clutch linings receive training from a qualified supervisor, per 29 CFR 1910 Subpart Z.

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■ Proper work procedures are followed by personnel working with known or assumed asbestos-containing brakes and clutch linings.
■ Through the services of an industrial hygienist, initial and annual personal air monitoring of workers is provided to confirm the effectiveness of engineering controls and workplace practices.
■ Asbestos waste generated during UNICOR-related asbestos work is disposed of properly. ■ With the assistance of the Environmental and Safety Compliance Department, a written
Asbestos Brake and Clutch Removal Plan details engineering controls, work practices, training methods, and waste disposal procedures.
f. Removal/Demolition. Removal/demolition projects involving asbestos-containing materials must adhere to OSHA 29 CFR 1926 and EPA 40 CFR 61 Subpart M (National Emission Standard for Hazardous Air Pollutants), and state and local requirements. Due to the complexity of such projects and their strict regulatory safeguards, in-house asbestos removal or demolition (except for small-scale emergency repair/cleanup) is prohibited.
Contracts for asbestos abatement projects and specifications must be approved by the Regional Facilities Administrator and the RESCA before work begins. While specifications vary from project to project, compliance with applicable regulations is mandatory.

As required by 40 CFR 61 Subpart M, the Regional EPA Asbestos Coordinator or governing state environmental agency must be notified in writing at least 20 days before the start of an asbestos removal or demolition project. A copy of the notification must be kept in the Facilities project file.

6. EYE WASH STATIONS AND SHOWERS

Emergency eye wash/shower stations must be provided at locations in accordance with the institution’s hazard assessment. At a minimum, an eye wash station must be provided in areas where powered industrial truck battery maintenance is performed.

Note. Does not apply to areas where power industrial truck batteries are charged only, no maintenance is performed, batteries are not removed from the trucks, and no electrolyte is stored in the area.

7. VENTILATION

a. Ventilation Survey. A ventilation survey must be conducted in inmate cells/rooms, officer stations, and dining areas to determine if ventilation is provided in accordance with the following requirements. The ventilation surveys must be conducted and documented by a qualified source at least once per ACA accreditation cycle.

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b. All Institutions Other Than High Rise Institutions
(1) Institutions Built Prior To 1990. At least 10 cubic feet of fresh or recirculated filtered air per minute per person must be provided for inmate cells/rooms, officer’s stations, and dining areas.
(2) Institutions Built After 1990. At least 15 cubic feet of outside or recirculated filtered air per minute per person must be provided for inmate cells/rooms, officer’s stations, and dining areas.
c. High Rise Institutions. The institution ventilation system must supply at least 15 cubic feet per minute of circulated air per occupant, with a minimum of five cubic feet per minute of outside air. Toilet rooms and cells with toilets must have no less than four air changes per hour.
d. Record Retention. Records for the current ventilation survey must be retained for a minimum of three years and maintained in the Environmental and Safety Compliance Department.
8. NOISE
a. Housing Unit Noise Survey. An inmate housing unit noise survey must be conducted by a qualified source annually, with at least one measurement taking place during nighttime and one during daytime.
The intent of this survey is to ensure that noise produced by mechanical systems (e.g., noisy pipes, fans, ice machines, or mechanical rooms) adjacent to inmate sleeping areas does not exceed 70 dBA.
Noise surveys must be conducted with calibrated equipment on the A scale. Documented calibration results must be included with the noise report. A plan of action must be developed to eliminate high noise above the ACA standard thresholds.
b. Records Retention. Records for housing unit noise surveys must be retained for three years and maintained in the Environmental and Safety Compliance Department.
c. Occupational Noise Exposure/Hearing Conservation Program. OSHA Standard 29 CFR 1910.95 addresses requirements related to occupational noise exposure in general industry settings. The ESCA is responsible for coordinating required elements of an effective Hearing Conservation Program.

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The Health Services Administrator is responsible for maintaining calibrated audiometric testing equipment, conducting baseline and annual audiograms, and maintaining audiometric testing records.
If the institution does not have audiometric testing equipment, the Health Service Administrator must hire an outside contractor to conduct required audiometric testing.
d. Written Program. A written Hearing Conservation Program must be developed that includes the following:
■ Institution noise survey/employee monitoring. ■ Employee notification. ■ Observation of monitoring. ■ Audiometric testing program/test requirements. ■ Hearing protectors/attenuation. ■ Training program. ■ Recordkeeping.
e. Institution Noise Survey/Employee Monitoring. The ESCA must conduct an institutionwide noise survey to identify any noise levels at or above the 85 decibel, 8-hour time weighted average (TWA) OSHA action level. Subsequent noise surveys must be conducted when equipment or operations change.
Note: Individual employee monitoring may be required, depending on the work environment. Individual monitoring can be completed using dosimeters.
f. Employee Notification. Personnel enrolled in the Hearing Conservation Program must:
■ Receive notification they have been enrolled in a Hearing Conservation Program and informed of monitoring results;
■ Receive a baseline audiogram prior to exposure, or within 6 months of noise exposure.
g. Observation of Monitoring. Personnel must be allowed to observe any noise measurements conducted.
h. Audiometric Testing Program/Test Requirements. Audiometric testing must be conducted by qualified individuals using calibrated audiometric testing equipment.

The results must be reviewed by a qualified technician, provider, audiologist, or other qualified person specified in 29 CFR 1910.95(g)(3). All hearing test documentation, such as audiograms and any subsequent evaluations, must be retained in the individual’s medical file.

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An initial baseline audiogram must be conducted on persons when first enrolled in the Hearing Conservation Program.
An annual audiogram must be conducted and the results compared against the baseline audiogram to identify a threshold shift, or loss or hearing.
If the annual audiogram shows that an employee has suffered a standard threshold shift (STS), the hearing test should be repeated within 30 days. Repeat STS should prompt clinical evaluation by a physician or audiologist. The worker must be notified in writing within 21 days that a persisting STS has occurred.
If an STS is deemed permanent, the worker’s “baseline” audiometric levels must be reset, and future tests compared to these new levels.
i. Hearing Protectors/Attenuation. Hearing protection must be selected that will attenuate the 8-hour TWA exposure below 85 decibels. The style of hearing protection should not interfere with the use of other PPE or create a new hazard.
j. Training Program. Persons enrolled in the Hearing Conservation Program must receive training initially and annually on:
■ The effects of noise on hearing. ■ The purpose of hearing protectors; the advantages, disadvantages, and attenuation of various
types; and instructions on selection, fitting, use, and care. ■ Purpose of audiometric testing, and an explanation of the testing procedures.
k. Recordkeeping. Employee audiometric test records must be maintained in the employee’s medical file located in the Health Services Department. The record must include:
■ Name and job classification of the employee. ■ Date of the audiogram. ■ Examiner’s name. ■ Date of the last acoustic or exhaustive calibration of the audiometer. ■ Employee’s most recent noise exposure assessment.
In addition, the institution must maintain accurate records of the measurements of the background sound pressure levels in audiometric test rooms.
l. Records Retention. Records for the following must be maintained:

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■ Audiometric testing records must be retained for the duration of employment. The records are maintained in the personnel medical file.
■ The current institution-wide noise survey conducted for occupational noise exposure must be maintained in the Environmental and Safety Compliance Department.

m. Firing Ranges. The institution-wide noise survey must include staff utilizing the firing range or other training facilities during qualification. The survey must include all courses of fire (ART, BPT, SORT, etc.) and must also include firearms instructors to determine noise exposure.

n. Airlift Operations. Staff participating in airlift operations must use hearing protection when exposed to high noise levels created by aircraft engines.

9. LIGHTING

a. Inmate Rooms/Cells. A lighting survey of inmate rooms/cells must be conducted by a qualified source at least once per ACA accreditation cycle.

Lighting levels in inmate rooms/cells must be at least 20-foot-candles at desk level and in personal grooming areas. If applicable, education, recreation, leisure centers, and multipurpose areas designated as primary or secondary reading/writing areas should be included in lighting surveys.

b. Institution-Wide Lighting Survey. The Environmental and Safety Compliance Department must assess light levels throughout the facility to determine if sufficient lighting is available based on the tasks performed. Since lighting levels generally vary throughout the room/area, the lighting survey should reflect the average level over the area where tasks are performed. Lighting sources may also be a combination of task lighting and ceiling lighting.

The following chart can be used as a guide for recommended illumination levels:

Minimum Recommended Illumination

Area
General Areas: Offices Control Room Conference Rooms Training Rooms Lobby Areas

Foot Candles
30 30 30 30 20

Area
Service Areas: Stairwells Elevators Corridors Restrooms

Foot Candles
5 5 5 10

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Inmate Living Units:

Desk Level (Writing)

20

Grooming Areas

20

Education/Recreation:

Classrooms

30

Libraries

20

Gymnasium

20

VT Shops

20

Trust Fund Areas:

Warehouse Areas

10

Commissary

20

Laundry

30

Food Service:

Dining Room

15

Kitchen

50

Dish Room

20

Facilities Areas:

Maintenance Shops

20

Electrical/Generator Rooms

Mechanical Rooms

20

20

Health Service Areas:

Exam Rooms

50

Laboratory

50

Pharmacy

75

UNICOR Areas:

Production Areas

30

(Additional task lighting may be

needed depending on type of

production)

Warehouse Areas

10

Maintenance Areas

20

c. Records Retention. Records for current lighting surveys must be maintained in the Environmental and Safety Compliance Department.

10. PEST CONTROL

Each institution must develop a written plan for pest control measures. The written plan must include, at a minimum, the following:
■ Pest Inspections. ■ Pesticide Application Logs.
a. Inspections. Monthly inspections must be conducted throughout the institution to determine the presence of insects, rodents, or vermin. These inspections must be documented and kept in the Environmental and Safety Compliance Department for a minimum of three years.

b. Pesticide Application Logs. A log must be maintained to document any pesticide application (whether applied by in-house personnel or contractors). The log must include the following:

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■ Date of pesticide application. ■ Area of pesticide application. ■ Type of pesticide used. ■ Signature of person applying pesticide.
The logs must be kept in the Environmental and Safety Compliance Department for a minimum of three years.
Restricted-use pest control products governed by Federal regulation must not be used at Bureau facilities unless applied by a licensed contractor.
In-house personnel applying non-restricted-use pesticides need not be licensed as a pest control operator.
Pesticides must be mixed, applied, and disposed in accordance with manufacturer label instructions.
The SDS for all pesticides used (whether applied by in-house personnel or contractors) must be kept on file and be readily accessible to employees in accordance with the Hazard Communication Program.
All pesticide mixing and application equipment must be labeled “Contaminated with Pesticide.”
11. SECURITY X-RAY MACHINES:
Security x-ray machines must be operated per the manufacturer’s guidelines. Each employee who operates an x-ray machine must be trained in accordance with the manufacturer’s specifications. A copy of the operating instructions must be posted by the machine.
X-ray machines must be tested for proper operation in accordance with the manufacturer’s requirements. Documentation must be kept by the Captain.
An area exposure badge must be provided for security x-ray machines. The badge must be exchanged quarterly; used badges must be sent to a laboratory for testing. The department head accountable for x-ray equipment is responsible for providing, collecting, and testing badges. Test results must be made available to staff operating the X-ray machines upon request.

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Attachment 2

InCtaeser1i:m20-cGv-0u5i4d96a-RnMcBeDooncumMenat 2n8-a4gFeilemd 0e5/n18t/2o0 fPCagoer6o8 nofa10v6iPraugesIDD: 1i1s3e0ase 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance speciﬁc for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staﬀ, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Deﬁnitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staﬀ and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staﬀ, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology speciﬁc to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staﬃng, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not speciﬁcally covered in this guidance.

CS 316182-A 03/26/2020

cdc.gov/coronavirus

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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staﬀ, and visitors. Consistent application of speciﬁc preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staﬀ ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from diﬀerent geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staﬃng must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staﬀ roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staﬀ within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to diﬀerent policies and procedures.
• Incarcerated/detained persons and staﬀ may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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This guidance document provides additional recommended best practices speciﬁcally for correctional and detention facilities. At this time, diﬀerent facility types (e.g., prison vs. jail) and sizes are not diﬀerentiated. Administrators and agencies should adapt these guiding principles to the speciﬁc needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the deﬁnition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-conﬁrmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for speciﬁc details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an aﬀected location. Once community transmission is identiﬁed in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to deﬁne “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Conﬁrmed vs. Suspected COVID-19 case—A conﬁrmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a conﬁrmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not speciﬁcally reference individuals in every type of custodial setting (e.g., juvenile facilities, community conﬁnement facilities), facility administrators can adapt this guidance to apply to their speciﬁc circumstances as needed.
Medical Isolation—Medical isolation refers to conﬁning a conﬁrmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health oﬃcials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staﬀ are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of conﬁning individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—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). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). 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. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staﬀ—In this document, “staﬀ” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staﬀ” does not distinguish between healthcare, custody, and other types of staﬀ including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staﬀ and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staﬀ or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modiﬁcations based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of conﬁrmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter conﬁrmed or suspected cases among incarcerated/detained persons or staﬀ, in order to ensure eﬀective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staﬀ in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with conﬁrmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staﬀ), continued communication with incarcerated/ detained persons and staﬀ, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage conﬁrmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensiﬁed social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staﬀ and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility. ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staﬀ, contractors, vendors, and visitors as the pandemic progresses.
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ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staﬀ.
ο Where possible, put plans in place with other jurisdictions to prevent conﬁrmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identiﬁed to isolate conﬁrmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identiﬁed and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at diﬀerent stages of transmission intensity. ο Designate oﬃcials who will be authorized to make decisions about escalating or de-escalating response eﬀorts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staﬀ ο For staﬀ: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staﬀ to stay home when sick. ο If these policies do not encourage staﬀ to stay home when sick, discuss with the contract company. ο Determine which oﬃcials will have the authority to send symptomatic staﬀ home.
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√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staﬀ and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staﬀ to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staﬀ where possible. ο Determine minimum levels of staﬀ in all categories required for the facility to function safely. If possible, develop a plan to secure additional staﬀ if absenteeism due to COVID-19 threatens to bring staﬃng to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staﬀ shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for speciﬁc staﬀ members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants eﬀective against the virus that causes COVID-19
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ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staﬀ, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identiﬁed. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
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√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staﬀ transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staﬀ should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuﬀs). ο Use household cleaners and EPA-registered disinfectants eﬀective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and eﬀective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision. ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use. ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage. ο Avoid touching your eyes, nose, or mouth without cleaning your hands ﬁrst. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing. ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below). ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):
 Require the individual to wear a face mask.
 Ensure that staﬀ who have direct contact with the symptomatic individual wear recommended PPE.
 Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staﬀ for further evaluation. (See Infection Control and Clinical Care sections below.)
 Facilities without onsite healthcare staﬀ should contact their state, local, tribal, and/or territorial health department to coordinate eﬀective medical isolation and necessary medical care.
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ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)
 Facilities without onsite healthcare staﬀ should contact their state, local, tribal, and/or territorial health department to coordinate eﬀective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out
 Stagger time in recreation spaces
 Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:
 Stagger meals
 Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)
 Provide meals inside housing units or cells ο Group activities:
 Limit the size of group activities
 Increase space between individuals during group activities
 Suspend group programs where participants are likely to be in closer contact than they are in their housing environment
 Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out
ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)
 Arrange bunks so that individuals sleep head to foot to increase the distance between them
 Rearrange scheduled movements to minimize mixing of individuals from diﬀerent housing areas ο Medical:
 If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.
 Designate a room near the intake area to evaluate new entrants who are ﬂagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
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√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staﬀ at the ﬁrst sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staﬀ
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staﬀ, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staﬀ home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
Provide staﬀ with up-to-date information about COVID-19 and about facility policies on a regular basis, including:
ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staﬀ develop a fever, cough, or shortness of breath while at work: immediately put on a
face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staﬀ test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staﬀ member is identiﬁed as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staﬀ performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not ﬁnancially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staﬀ, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staﬀ transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)
 If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.
 If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.
 Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staﬀ to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or conﬁrmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a conﬁrmed or suspected case, in order to ensure eﬀective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Conﬁrmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without suﬃcient space to implement eﬀective medical isolation, should coordinate with local public health oﬃcials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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ο If cohorting is necessary:
 Only individuals who are laboratory conﬁrmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort conﬁrmed cases with suspected cases or case contacts.
 Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.
 Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airﬂow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
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√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  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:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the ﬁrst symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s ﬁrst positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the conﬁrmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as conﬁrmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Deﬁnitions section for the distinction between conﬁrmed and suspected cases.
ο Close oﬀ areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on diﬀerent ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be eﬀective. Choose cleaning products based on security requirements within the facility.
 Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).
 Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be eﬀective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted ﬂoors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:
 If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.
 Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.
 Follow the manufacturer’s instructions for all cleaning and disinfection products.
 Consider use of wipeable covers for electronics.
 If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without suﬃcient space to implement eﬀective quarantine, should coordinate with local public health oﬃcials to ensure that close contacts of COVID-19 cases will be eﬀectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
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ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airﬂow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staﬀ supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
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√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without suﬃcient space for medical isolation should coordinate with local public health oﬃcials to ensure that suspected COVID-19 cases will be eﬀectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
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√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staﬀ perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staﬀ
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staﬀ perform regular rounds to answer questions about COVID-19 from staﬀ.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for deﬁnition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staﬀ.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staﬀ and incarcerated/ detained persons may have with conﬁrmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
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ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the speciﬁc language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reﬂect facility operations and custody needs.
ο Note that these recommendations apply to staﬀ as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
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ο Ensure that staﬀ and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and ﬁt-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staﬀ anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staﬀ are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staﬀ.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators
 Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staﬀ engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk.
ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
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Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staﬀ in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply,

quarantine as close contacts of a COVID-19 case*)

especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–

COVID-19

–

–

–

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for
more details.

Staﬀ

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons

Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)

Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control

–

guidelines)

Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–

Staff cleaning an area where a COVID-19 case has spent time

Additional PPE may be needed based on the product label. See CDC guidelines for more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

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Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staﬀ, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Diﬃculty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
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Attachment 4

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Attachment 5

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Case 1:20-cv-05496-RMB Document 28-5 Filed 05/18/20 Page 1 of 67 PageID: 1169

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, et al., Petitioners,
v. DAVID E. ORTIZ, et al.,
Respondents.

Hon. Renée Marie Bumb, U.S.D.J. Civil Action No. 20-cv-5496

DECLARATION OF MARK E. COYNE I, Mark E. Coyne, make the following declaration pursuant to 28 U.S.C. § 1746 to the best of my knowledge and belief. 1. I am a Supervisory Assistant U.S. Attorney for the United States Attorney’s Office for the District of New Jersey. I have served as the Chief of my Office’s Appeals Division since 2011. I am over the age of twenty-one and competent to make this Declaration. 2. My Office’s Civil Division monitors the civil docket of the United States District Court for the District of New Jersey. Through those efforts, the Civil Division has identified 28 inmates who have filed petitions under 28 U.S.C. § 2241 seeking relief from their confinement at FCI Fort Dix because of their fear of COVID-19, including the four “lead” petitioners in this case. 3. In addition, inmates at FCI Fort Dix are seeking relief from their confinement through other means. I have attached to this Declaration an Appendix (“A”) containing copies of several court filings concerning some of those inmates’ efforts and a pending § 2241 matter.

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4. At pages A1–A15 of the Appendix is the filed (and redacted) copy of the Government’s May 6, 2020 letter brief opposing the May 5, 2020 motion of James Gomez for a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A).
5. At pages A16–A28 of the Appendix is the transcript of the May 7, 2020 hearing on that motion before the Honorable I. Leo Glass, Sr. U.S.D.J. At that hearing, Judge Glasser denied the motion.
6. At pages A29–A40 of the Appendix is a filing by Joseph Furando that this Court is treating as a renewed § 2241 motion. In that filing, Furando claims that appealing administratively the recent denial of his request for transfer to home confinement would be futile.
7. At pages 41–58 of the Appendix is the Government’s filed April 30, 2020 letter brief in Thieme v. United States, No. 20-1839 (3d Cir.) opposing Christopher Thieme’s motion for bail pending disposition of his appeal from the dismissal as time-barred of his motion under 28 U.S.C. § 2255.
8. At page 59 of the Appendix is the May 4, 2020 order of the Court of Appeals summarily denying Thieme’s motion for bail pending appeal.
9. At pages 60–62 of the Appendix is the Government’s filed April 27, 2020 letter brief in Aigbekaen v. BOP, No. 20-1351 (3d Cir.) opposing Raymond Aigbekaen’s motion for bail pending disposition of his appeal from the dismissal on jurisdictional grounds of his § 2241 petition attacking his conviction and sentence.
10. At page 63 of the Appendix is the April 28, 2020 order of the Court of Appeals summarily denying Aigbekaen’s motion for bail pending appeal.
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I declare, under penalty of perjury, that the foregoing is true to the best of my knowledge and belief.

May 18, 2020

________________________________ Mark E. Coyne Assistant U.S. Attorney Chief, Appeals Division United States Attorney’s Office District of New Jersey

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Case 1:20-cv-05496-RMB Document 28-5 Filed 05/18/20 Page 4 of 67 PageID: 1172 APPENDIX

CaCsaes1e:210:1-c7v-c-0r-50409166-9R-MILBG DDooccuummeenntt2383-5 FiFleilded050/50/61/82/020 PaPgaege1 5ofo9f 6P7agPeaIgDeI#D: :1131973 U.S. Department of Justice

DMP:JGH F. #2017R00371

United States Attorney Eastern District of New York
271 Cadman Plaza East Brooklyn, New York 11201

May 6, 2020

By Email and ECF
The Honorable I. Leo Glasser United States District Judge United States District Court 225 Cadman Plaza East Brooklyn, New York 11201
Re: United States v. James Gomez Criminal Docket No. 17-169 (ILG)
Dear Judge Glasser:
The government respectfully submits this letter in response to defendant James Gomez’s May 5, 2020 motion for a modification of his previously imposed term of imprisonment (the “motion” or “Def. Mot.”). For the reasons set forth below, including the defendant’s failure to exhaust his administrative remedies and failure to show “extraordinary and compelling reasons” for his release, the motion should be denied. Notably, while the defendant seeks release based on a positive test for COVID-19 on April 17, 2020 and claims he faces “imminent danger,” his medical records and his own statements show that he has recovered from his symptoms and appears to be in good health. Indeed, on May 2, 2020, Gomez wrote to an associate that “I feel 100%.” Yesterday, on May 5, 2020, Gomez wrote to an associate, “im feeling way better now,” and indicated that he was waiting for prison officials to move him out of a medical isolation unit.
I. Background
On April 21, 2017, Gomez pleaded guilty before this Court to conspiracy to distribute and possess with the intent to distribute 500 grams or more of cocaine. Gomez’s conviction arose out of his February 2017 arrest, along with his brother Marlon Gomez, after law enforcement apprehended both brothers dealing cocaine. As set forth in both the underlying criminal complaint and the defendant’s Presentence Investigation Report (“PSR”), on the date of their arrest, law enforcement agents recovered more than two kilograms of cocaine from Marlon Gomez’s residence, along with multiple firearms, ammunition, a bulletproof vest and various drug trafficking paraphernalia. See PSR at 17-19. As the

A1

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government emphasized at sentencing, several young children resided in the house during the period in which both Marlon and James Gomez used the residence in furtherance of their drug trafficking conspiracy.
On January 17, 2018, this Court sentenced the defendant to 60 months’ incarceration, the mandatory minimum sentence proscribed by statute. The defendant was also sentenced to a term of 3 years’ supervised release. The defendant is currently serving his sentence at the Bureau of Prisons (“BOP”) FCI Fort Dix facility in New Jersey (“FCI Fort Dix”). According to the BOP, the defendant’s anticipated release date is May 20, 2021.
II. Applicable Law
The statute upon which the defendant relies, 18 U.S.C. § 3582(c)(1)(A)(i) is referred to as the “compassionate release” statute and permits a Court to modify an already imposed sentence upon a showing of “extraordinary and compelling reasons.” See United States v. Zullo, 09-CR-64, 2019 WL 7562406, at *1 (D. Vt. Sept. 23, 2019). Prior to the enactment of the First Step Act of 2018 (the “FSA”), such a modification required a motion by the BOP. Id. (citing Morales v. United States, 353 F. Supp. 2d 204 (D. Mass. 2005)). The FSA removes the requirement that the BOP file the motion and permits defendants to file motions pursuant to this section. Section 3582(c)(1)(A) contains a requirement that a defendant first request that the BOP make a motion for compassionate release and can only bring a motion him or herself if the BOP does not act within 30 days.
III. Discussion
A. The Court Lacks the Authority To Grant Compassionate Release at This Time
Gomez concedes that he has failed to exhaust his administrative remedies available to him, noting that he first made a request for release to the warden at Fort Dix by letter dated April 13, 2020. Def. Mot. at 2. Because such exhaustion is mandatory, the Court lacks the authority to grant compassionate release at this time.
Under 18 U.S.C. § 3582(c), a district court “may not” modify a term of imprisonment once imposed, except under limited circumstances. Once such circumstance is the so-called compassionate release provision, which provides that a district court “may reduce the term of imprisonment” where it finds “extraordinary and compelling circumstances.” Id. § 3582(c)(1)(A)(i). A motion under this provision may be made by either the Bureau of Prisons or a defendant, but in the latter case only “after the defendant has fully exhausted 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.” Id. (emphasis added). Thus, where a compassionate release motion is brought by a defendant who has not “fully exhausted all administrative rights,” the district court “may not” modify his term of imprisonment.
Section 3582(c)(1)(A)’s exhaustion requirement is therefore mandatory. It is critical, in this context, to note that Section 3582(c)’s exhaustion requirement is statutory, and
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thus is not the sort of judicially-crafted exhaustion requirement that “remain[s] amenable to judge-made exceptions.” Ross v. Blake, 136 S. Ct. 1850, 1857 (2016). By significant contrast, statutory exhaustion requirements “stand[] on a different footing.” Id. There, “Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to.” Id. Thus, where a statute contains mandatory exhaustion language, the only permissible exceptions are those contained in the statute. Id.
As described above, Section 3582(c)(1)(A) contains mandatory exhaustion language with no statutory exceptions. The plain language of the statute makes clear that a court “may not” modify a sentence unless, as relevant here, the defendant has first “fully exhausted all administrative rights.” Unlike the Prison Litigation Reform Act, for example, there is no statutory qualifier that a defendant need only exhaust all “available” remedies. Thus, Section 3582(c)(1)(A) is a mandatory exhaustion provision with no applicable exceptions. Cf. Fry v. Napoleon Community Schools, 137 S. Ct. 743, 750 (2017) (statute requiring that certain types of claims “shall be exhausted” is a mandatory exhaustion provision for those types of claims). For this reason, as Judge Cote has explained, this court lacks the authority to grant [the defendant’s] motion at this time. United States v. Monzon, 2020 WL 550220, at *2 (S.D.N.Y. Feb. 4, 2020); see also United States v. Hernandez, 2020 WL 1445851, at *1 (S.D.N.Y. Mar. 25, 2020) (finding that the compassionate release provisions of the FSA did not apply because “Mr. Hernandez does not appear to have sought any [ ] relief within the Bureau of Prisons, let alone exhausted his administrative remedies”). It would be legal error for the Court to disregard that requirement.
Gomez argues that the Court should grant his motion, notwithstanding his failure to exhaust administrative remedies, because the statutory exhaustion “is nonjurisdictional.” Def. Mot. at 3. In so arguing, the defendant relies on United States v. Scparta, 18 Cr. 578 (AJN), 2020 WL 1910481 (S.D.N.Y. Apr. 20, 2020) for the proposition that judges can create exceptions to the FSA exhaustion requirement. Id. at 3.
Defendant’s reliance on Scparta is misplaced. Scparta relies on Washington v. Barr, 925 F.3d 109 (2d Cir. 2019) which, as discussed below, is inapposite because it involves judge-made exhaustion doctrine. Moreover, in Scparta, the BOP had already agreed to release the defendant, who was sentenced to 18 months’ imprisonment after a conviction for theft of government funds and tax evasion, to home confinement and the defendant was merely contesting the BOP facility’s decision to detain him for an additional 14-day quarantine period prior to his release. Scparta, 2020 WL 1910481, at *8. Gomez omits these distinguishing facts from his motion and ignores that the circumstances of his case are far different.
Washington v. Barr and recent cases waiving the exhaustion requirement in the context of COVID-19 are misplaced. As explained in United States v. Woodson, No. 18-CR845, 2020 WL 1673253, *3 (S.D.N.Y. Apr. 6, 2020), Washington v. Barr involved a judgemade exhaustion doctrine, not a statutory exhaustion requirement, like the one contained in the FSA. See Barr at 116 (stating that the statute in question “does not mandate exhaustion of administrative remedies” but finding that exhaustion requirement was nevertheless appropriate); id. at 118 (“Although not mandated by Congress, [exhaustion] is consistent with congressional intent.”). In contrast, Section 3582(c)’s exhaustion requirement is statutory, and
3
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thus is not the sort of judicially-crafted exhaustion requirement that “remain[s] amenable to judge-made exceptions.” See Ross, 136 S. Ct. at 1857. Statutory exhaustion requirements “stand[] on a different footing.” Id. There, “Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to.” Id. Thus, where a statute contains mandatory exhaustion language, as the FSA does, the only permissible exceptions are those contained in the statute. Id. The adverse decisions relied upon by the defendant fail to acknowledge this important distinction.
Furthermore, in arguing for waiver of the exhaustion requirement, Gomez simply ignores the most recent decisions on this issue within the Eastern District of New York. In United States v. Flores, 15-CR-152 (RRM) (E.D.N.Y. Apr. 12, 2020), Chief Judge Mauskopf noted that failure to exhaust administrative remedies was a “threshold matter” that prevented the Court from considering a Section 3582 application. Judge Chen reached the same conclusion in United States v. Napout, 15-CR-252 (PKC) (E.D.N.Y. Apr. 14, 2020) (failure to satisfy the statutory exhaustion requirement “deprived the Court of the authority” to consider his Section 3582 application); United States v. Facey et al., No. 96-CR-912 (ERK) (E.D.N.Y. Apr. 14, 2020) (denying motion for compassionate release because “the issue of exhaustion presents a hurdle I have concluded [the defendant] cannot surmount”).
In sum, rather than affording the warden at FCI Fort Dix the requisite 30-day period contemplated in the statute before relief can be sought in the district court for lack of action by the BOP, see 18 U.S.C. § 3582(c)(1)(A)—Gomez preemptively filed his request for relief with this Court and styled it an “emergency” motion. Because the exhaustion of administrative remedies is mandatory, the Court lacks the authority to grant compassionate release at this time, and the defendant’s motion should be denied.
B. A Modification of Gomez’s Sentence Is Not Warranted Under The Statute
Even if the Court were to waive the defendant’s failure to exhaust his administrative remedies, the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) and BOP policy have established clear criteria to aid in a court’s determination of when compassionate release is appropriate pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). See U.S.S.G. § 1B1.13; see also BOP Program Statement 5050.50 (“Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g)”) (available at https://www.bop.gov/policy/progstat/5050_050_EN.pdf). Both the Guidelines and the BOP Program Statement primarily limit compassionate relief to cases of serious illness or impairment, advanced age or a need to care for a child, spouse or registered partner. See id.; see also United States v. Traynor, 04-CR-0582 (NGG), 2009 WL 368927, at *1 n.2 (E.D.N.Y. Feb. 13, 2009). As the Court recognized in Traynor, Congress noted that Section 3582(c)(1) “applies . . . to the unusual case in which the defendant’s circumstances are so changed, such as by terminal illness, that it would be inequitable to continue the confinement of the prisoner.” Id. at *1 (citing Senate Report No. 98–225, 98th Cong., 2d Sess., reprinted in 1984 U.S.C.C.A.N. 3182, 3304).
As the proponent of release, the defendant bears the burden of proving that “extraordinary and compelling reasons” exist. See United States v. Butler, 970 F.2d 1017,
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1026 (2d Cir. 1992) (“If the defendant seeks decreased punishment, he or she has the burden of showing that the circumstances warrant that decrease.”); United States v. Gotti, 02-CR-743 (CM), 2020 WL 497987, at *5 (S.D.N.Y. Jan. 15, 2020) (defendant “has the burden of showing that ‘extraordinary and compelling reasons’ to reduce his sentence exist”).
Gomez cannot meet his heavy burden. He seeks compassionate release and termination of his remaining prison term based solely on his claim that he is in “imminent danger” after testing positive for COVID-19. Def. Mot. at 2. This is not so, and his claim contradicted by the factual record, including his medical records and his own statements.
a. Gomez Is Not In Imminent Danger
Gomez is thirty-five years old. His medical records obtained from FCI Fort Dix, which are attached here as Exhibit 1,1 show that
was quarantined in an isolated housing unit designated for COVID-19 patients and he immediately began receiving treatment,
See Exhibit 1 at 98. Or about April 17,

1

The government respectfully requests that the portions of this letter that discuss

the defendant’s sensitive health information be redacted from the publicly filed version of the

letter. See Offor v. Mercy Med. Ctr., 167 F. Supp. 3d 414, 445 (E.D.N.Y. 2016) (“Courts in

this Circuit have repeatedly held that information protected by HIPAA is not subject to a First

Amendment or common-law right of access and thus have sealed docket entries and redacted

documents that contain such information.”), vacated in part on other grounds, 676 F. App’x

51 (2d Cir. 2017). To this end, and pending the Court’s ruling on the issue, the government

will file on the Electronic Court Filing (“ECF”) system a redacted version of this letter.

Additionally, the defendant’s health records contained in Exhibit 1 will not be filed via ECF

but will be provided to the Court and defense counsel via email.

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Moreover, Gomez’s recent statements to others outside the BOP also indicate that he has recovered from COVID-19 and further belie any claim of “imminent danger” meriting the drastic step of reducing his mandatory sentence to time served. For example, in an email exchange with an associate on April 29, 2020, Gomez responded to the inquiry “how are u feelin?” by stating “im actually feeling waaaayy better than how i was feeling last week ….how are you feeling???”2 See Exhibit 2 at 1.
On May 2, 2020, Gomez engaged in the following exchange with an associate. Gomez’s associate wrote:
Bro is it the video of the mold in the food and the one where they have a lot of inmates in the yard no social distancing at all?? That shit is crazy bro, how are you feeling? Who's your lawyer? What if i contact him to see if he can legally put in a request to get you out sooner??
Gomez responded:
to be honest with you i cant tell you which one it is all i know its the video about the ft.dix jail camp with the corona shit ..... im actually way better brother i feel 100% ... my lawyer is robert ozuna you can call my moms to talk to him 718 913-1213.love you [.]
See Exhibit 2 at 3 (emphasis added).
On May 5, 2020, Gomez engaged the following email/text exchange:
Gomez’s Associate: I think i know which one bro but thank god your feeling better bro! Wow that's fucking great news us 80’s babies got some strong fucking immune systems lol ight ima call your mom this week and try to see if i can speak to your lawyer to put in some kind of request to get you out of there sooner because your positive and need to get treated better out here Miss you too big bro I'm good man just working and staying home Quarentined making the beat out th is situation, family is good bro healthy and keeping safe

2

All quotations set forth herein are provided as they appear in the original text,

without change to spelling or punctuation.

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Gomez: yeah that video should be up there.but yeah thank the lord im feeling way better now im just waiting for them to move me upstairs but i dont know when theyre going to do that…[]
See Exhibit 2 at 5 (emphasis added).
The “upstairs” Gomez referred to in his message appears to refer to his expected transfer out of the COVID-19 isolation unit and to the area for recovered patients.
The government has also obtained Gomez’s recent phone records from FCI Fort Dix. These records further indicate that Gomez is no longer reporting symptoms of COVID19 and that he is in no “imminent danger.” For example, during a call with a female associate on May 4, 2020, Gomez described his recovery from his prior COVID-19 symptoms and stated “I don’t have any symptoms anymore” and that he expected to be moved out of the segregated unit for COVID-19 patients in the coming days. During the same call, Gomez, who sounds healthy and energetic, engaged in approximately ten minutes of animated conversation during which he laughed often and discussed, inter alia, his associate’s dating life and other friends and what he recently watched on television. Later in the call, Gomez stated “everything else is all right, just dying to get the fuck out of here.”3
In sum, the government recognizes the seriousness of COVID-19 and the unprecedented damage the pandemic is currently afflicting across the world, and the fact that Gomez has indeed suffered from the illness. However, Gomez’s medical records and his own statements indicate that he has recovered from COVID-19 and is in no apparent distress or danger, let alone any imminent danger or condition sufficient to meet the standard of compassionate relief under § 3582(c)(1)(A)(i). In other words, there is no support for Gomez’s claim in his May 5, 2020 filing that he is in “imminent danger” meriting release. Def. Mot. at 2.
b. The Attorney General’s Directives Do Not Support Gomez’s Release
Gomez’s reliance on Attorney General William Barr’s March 26, 2020 Memorandum regarding home confinement (Def. Mot. at 2) is also misplaced. In light of the grievous pandemic taking lives across the country and the world, the Attorney General has directed that the BOP prioritize transferring inmates to home confinement in appropriate circumstances when those inmates are vulnerable to COVID-19 under the CDC risk factors— particularly those at institutions where there have been COVID-19 outbreaks—and the BOP

3

The government can provide to the Court and defense counsel via email a copy

of this recording upon the Court’s request.

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is devoting all available resources to executing on that directive. See, e.g., March 23, 2020 Attorney General Memorandum (the March 23, 2020 AG Memo).4
Gomez is not an appropriate candidate for home confinement. Aside from the fact that he cannot establish many of the factors supporting a prioritization of home confinement, including that he has more than a year left on his mandatory sentence for a serious drug trafficking crime, his PATTERN score is “Low” and he lacks any demonstrated, “verifiable re-entry plan” (the March 23, 2020 AG Memo), Gomez is also an entirely inappropriate candidate for home confinement (which the AG Memo promotes for the purpose of reducing the potential for COVID-19 infection in prisons) because he has already contracted COVID-19 and has recovered from it after several weeks of treatment and isolation.
Finally, Gomez’s claim that his case manager at FCI Fort Dix indicated to his counsel that Gomez “qualified for early release and ‘was on the list’ of inmates to be considered for home confinement due to the pandemic” is not supported by the BOP. The government has spoken with the case manager identified by defense counsel and she denied ever stating that Gomez “qualified for early release.” Moreover, the BOP has made no such determination; indeed, Gomez preemptively short-circuited any such determination and failed to let the BOP’s administrative process take its course by filing the instant motion with this Court. Gomez’s case manager also noted that in her view, Gomez would likely not be eligible for early release given, among other things, his crime of conviction and disciplinary sanctions issued to him in February 2020 and July 2019 for failing to obey orders. The United States Probation Officer assigned to this case (“Probation”) also spoke with the same case manager today, who confirmed to Probation that Gomez is ineligible for release and is in good health.
c. The Section 3553(a) Factors Do Not Support Gomez’s Release
Finally, any relief issued by the Court must still be analyzed using the factors listed in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A). In his motion, Gomez does not even address the § 3553(a) factors, let alone argue that they are outweighed by the risks poses by the COVID-19 pandemic. That is likely because all of the applicable § 3553(a) factors counsel against granting early release.
As recently as January 2018, this Court assessed the defendant’s crime – which included a conspiracy to traffic in kilograms of cocaine and well as his and his brother’s use of a residential home with young children to store drugs and multiple firearms and ammunition – and imposed the mandatory minimum sentence of 60 months’ imprisonment. Modifying the defendant’s sentence to time served now would severely undercut Congress’ intent in requiring a mandatory sentence for inherently dangerous drug trafficking offense the defendant committed, including to deter the defendant and others from engaging in such conduct in the

4

Additional information about the BOP’s implementation of the Attorney

General’s directives regarding the prioritization of home confinement in appropriate cases is

available at: https://www.bop.gov/coronavirus/.

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future. And, as set forth above, there is simply no reason to do so, let alone a compelling reason. IV. Conclusion
The defendant’s sole claim for releasing him now, with more than a year remaining of the mandatory sentence this Court imposed for a serious drug trafficking crime, is his assertion that he is in “imminent danger.” As set forth above, this claim is belied by both the defendant’s medical records and his own words. The defendant has not provided any reason, let alone an “extraordinary and compelling” one, that justifies modifying his sentence under the relevant statute. Indeed, based on the record, it appears that the defendant is attempting to use the COVID-19 pandemic as a means to avoid serving the remainder of his sentence. This attempt should be rejected.
Accordingly, the defendant’s motion for a modification of his sentence should be denied.
Respectfully submitted, RICHARD P. DONOGHUE United States Attorney By: /s/ Josh Hafetz Josh Hafetz Assistant U.S. Attorney (718) 254-6290
cc: Defense Counsel (by ECF) Clerk of Court (by ECF)
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EXHIBIT 2
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TRULINCS 81299053 - GOMEZ, JAMES - Unit: FTD-R-8

FROM : 81299053 GOMEZ, JAMES

TO: "Text App"

@yahoo .com>

SUBJECT: RE: gm how are u how u feelin

DATE: 04/29/2020 04:59 PM

#347 hey babygirl im actually feeling waaaayy better than how i was feeling last week ..... how are you feeling???what did u do 2day ,i know it wasnt much lol. ... mami i would call u 2day but they got us locked in till monday so i cant make any phone calls or do laundry till then smh just texts hun -----App , Text on 4/29/2020 12:51 PM wrote :

>

3479 gm how are u how u feelin u could call me anytime i jus woke up bout to feed the baby 9YXnT

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TRULINCS 81299053 - GOMEZ, JAMES - Unit: FTD-R-8

FROM : 81299053 GOMEZ, JAMES

TO: "Text App"

@yahoo.com>

SUBJECT: RE: im good jus stuck at home

DATE: 05/01/2020 07:13 PM

#347 thats whats up i know he enjoys mommys cooking lol. ... .what shows on t.v have u been watching lately???yes thank you hun hopefully they could give me some good news so they could release me home earlier than what it should be.im just hoping to gos some miracle happens.. ..and you missy hopefully u come live at queens when i come home -----App , Text on 5/1/2020 3:06 PM wrote:

>

347 im good jus stuck at home jus finish feedin my son .. about to take him a bath soon :. das good .. ok ill be waitin for ur call good luck wit everything 9ZtgT

A12

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TRULINCS 81299053 - GOMEZ, JAMES - Unit: FTD-R-B

FROM : 81299053 GOMEZ, JAMES

TO: "Text App" <

@yahoo .com >

SUBJECT: RE: Bro is it the video of

DATE: 05/02/2020 11 :23 AM

#7 18

to be honest with you i cant tell you which one it is all i know its the video about the ft.dix jail camp with the corona shit..... im

actually way better brother i feel 100%... my lawyer is robert ozuna you can call my moms to talk to him

.love you

brother miss you.. .how are you??hows the family doing??

-----App , Text on 5/2/2020 5:06 AM wrote :

>

71 8 Bro is it the video of the mold in the food and the one where they have a lot of inmates in the yard no social distancing at all?? That shit is crazy bro, how are you feeling? Who's your lawyer? What if i contact him to see if he can legally put in a request to get you out sooner?? 9ZEfr

A13

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TRULINCS 81299053 - GOMEZ, JAMES - Unit: FTD-R-8

FROM: 81299053 GOMEZ, JAMES

TO : "Text App"

@yahoo.com>

SUBJECT: RE: i havent been watchin

DATE: 05/03/2020 12:30 PM

#347 lol adorable he must be loving them cartoons....thank you i appreciate that..iam let you know i just hat this process of waiting and the worst is that iam getting short on my time and now im getting more anxious smh ...oh yeah when i come home i hope u have one of those great meals for me that you prep up lol :) -----App, Text on 5/2/2020 11 :36 PM wrote:

>

3479 i havent been watch in nothin to be honest .. i be puttin cartoons for my son while i clean cook n stuff good luck wit everythin let me know what they tell u 9ZNyp

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TRULINCS 81299053 - GOMEZ, JAMES - Unit: FTD-R-B

FROM : 81299053 GOMEZ, JAMES

TO: "Text App" <

@yahoo.com>

SUBJECT: RE: I think i know which one

DATE: 05/04/2020 10:20 PM

#718 yeah that video should be up there.but yeah thank the lord im feeling way better now im just waiting for them to move me upstairs but i dont know when theyre going to do that smh..yeah plz get in contact with her i would appreciate that Iii bro ,love you for that. ... man im glad z and the kids are doing great Iii bro...yes plz stay home i wanna make sure nothing happens to you out there i need you out there Iii bro..miss you like a motherfucka too -----App , Text on 5/4/2020 12:36 AM wrote:

>

71 83 I think i know which one bro but thank god your feeling better bro! Wow that's fucking great news us 80's babies got some strong fucking immune systems lol ight ima call your mom this week and try to see if i can speak to your lawyer to put in some ki nd of request to get you out of there sooner because your positive and need to get treated better out here

Miss you too big bro I'm good man just working and staying home Quarentined making the beat out th is situation, fam ily is good bro healthy and keeping safe 9ZYQP

A15

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Case 1:20C-cavs-0e5: 42906-1-R83M9B DDooccuummeenntt:2182-5 FPialegde:015/18/D20atePFailgeed:4054o/3f 06/720P2a0geID: 1213

U.S. Department of Justice

United States Attorney District of New Jersey

___________________________________________________________________________________________________________________________

Mark E. Coyne Assistant U.S. Attorney

970 Broad Street, 7th floor Newark, New Jersey 07102

973-297-2002

April 30, 2020

By ECF
Patricia S. Dodszuweit, Clerk U.S. Court of Appeals for the Third Circuit 601 Market Street, Room 21400 Philadelphia, PA 19106-1790
Re: Thieme v. United States, No. 20-1839
Dear Ms. Dodszuweit:
I write on behalf of the United States to oppose Christopher Thieme’s request for bail pending this appeal from the dismissal of his time-barred motion under 28 U.S.C. § 2255 by the United States District Court for the District of New Jersey (Hon. Susan D. Wigenton, U.S.D.J.).
Thieme is serving a 210-month term of imprisonment for attempted kidnapping and soliciting a murder for hire, in violation of 18 U.S.C. §§ 1201(d) and 1958(a). He pled guilty to those offenses, rather than go to trial, in exchange for the Government’s agreement not to seek a term of imprisonment exceeding the range for offense level 34. In Thieme’s case, that meant 168–210 months. Thieme had good reason to take that deal. He plotted to kidnap and kill a woman who had rejected his romantic advances. He also planned to empty her bank accounts, sell her house, use some of the proceeds to pay the hitman he wanted to hire, and pocket the rest. And Thieme hatched this horrible scheme less than two years after his release from prison for brutally assaulting a woman he lured to his apartment. The attached sentencing letter brief describes all of this. So does the Presentence Investigation Report, which I will file under seal if this Court needs it.
As the District Court explained in the attached opinion, Thieme did not appeal his judgment of conviction, which the District Court entered on December 22, 2016. Nor did he file a timely § 2255 motion. Instead, on June 14, 2019, he filed a motion attacking his convictions and sentence, which the District Court treated as a § 2255 after affording Thieme the requisite notice and an opportunity to amend his pleadings See generally Castro v. United States, 540 U.S. 375 (2003). The District Court then issued a screening order directing Thieme to explain why his § 2255 motion should not be dismissed as untimely under § 2255(f)(1), his judgment of conviction having become final on January 5, 2018. Thieme filed several documents in response, none of which offered any legitimate basis for deeming any

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aspect of his § 2255 motion timely or for excusing his failure to comply with the oneyear filing deadline. Accordingly, the District Court dismissed the § 2255 motion and issued an opinion explaining its reasons for doing so.
All of that underscores the frivolous nature of this appeal and the even more frivolous nature of Thieme’s request for bail. Bail pending a district court’s disposition of a habeas corpus petition is available “only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success” or “extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (quotation marks omitted). “On the other hand, when bail is sought by a prisoner who has been convicted” in “federal court and the district court has denied the collateral relief sought, the standard for bail is” even “more stringent.” Id. at 1238. Here, Thieme is demanding bail even though he has yet to receive a certificate of appealability allowing this appeal to proceed. And no reasonable jurist would disagree with the District Court’s decision below that Thieme’s § 2255 motion was untimely and that there was no basis to excuse his failure to comply with the limitations period. Meanwhile, Thieme has other means for raising his complaints about the conditions of his confinement.
Accordingly, this Court should deny Thieme bail and deny him a certificate of appealability.
Respectfully submitted, CRAIG CARPENITO UNITED STATES ATTORNEY
By: Mark E. Coyne Assistant U.S. Attorney Chief, Appeals Division
cc: Christopher Thieme, pro se Reg. No. 69451-050 FCI Fort Dix P.O. Box 2000 Joint Base MDL, NJ 08640
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U.S. Department of Justice

United States Attorney District of New Jersey

__________________________________________________________________________________________________________________

Josh Hafetz Assistant United States Attorney

970 Broad Street, 7th floor Newark, New Jersey 07102

973-645-2700 Direct: 973-297-2014

December 12, 2016

VIA ELECTRONIC MAIL Honorable Susan D. Wigenton United States District Judge United States District Court 50 Walnut Street Newark, New Jersey 07102

Re: United States v. Christopher Thieme
Crim. No. 16-294
Dear Judge Wigenton:
Your Honor will sentence Christopher Thieme on December 19, 2016. In June of this year, Mr. Thieme pled guilty before this Court to one count of attempted kidnapping and one count of murder-for-hire. In short, the defendant devised and tried to execute a terrifying plot to kidnap and murder a young woman who did nothing more than go on two online dates with him. For all of the reasons set forth herein, the Government submits that a sentence at the top of the advisory Guidelines range of 168 to 210 months is the only appropriate sentence in this case. The facts of this case cry out for a sentence sufficient to punish the defendant, to protect the community, and prevent the defendant from committing more violent crimes.
After United States v. Booker, 543 U.S. 220 (2005), this sentencing involves a three-step process: (1) “district courts are to calculate a defendant’s sentencing Guidelines range precisely as they would have before pre-Booker”; (2) courts must formally rule on any departure motions “and state on the record whether they were granting a departure and, if so, how such a departure affects the initial Guidelines calculation”; and (3) courts “are required to exercise their discretion by considering the relevant 18 U.S.C. § 3553(a) factors in setting their sentences, regardless of whether it varies from the original calculation.” United States v. Fumo, 655 F.3d 288, 329 (3d Cir. 2011); accord United States v. Goff, 501 F.3d 250, 254 (3d Cir. 2007).

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Step 1. The Advisory Guideline Range Is 168 to 210 months
“[C]ourts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker.” United States v. Grier, 475 F.3d 556, 608 (3d Cir. 2007) (en banc) (internal quotation marks omitted). The Court must expressly rule on “‘any disputed portion of the presentence report or other controverted matter ... or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.’” United States v. Leahy, 445 F.3d 634, 663 (3d Cir. 2006), quoting Fed. R. Crim. P. 32(i)(3)(B). “[A]s before Booker, the standard of proof under the guidelines for sentencing facts continues to be preponderance of the evidence.” United States v. Ali, 508 F.3d 136, 143-46, 155 (3d Cir. 2007) (internal quotation marks omitted).
In its Presentence Report (“PSR”), the U.S. Probation Office (“Probation”) properly calculated Thieme’s base offense level as 37. PSR ¶ 50. After a threelevel reduction for timely acceptance of responsibility, Thieme’s total Guidelines offense level is 34. PSR ¶ 59. Probation has further determined that Thieme falls into Criminal History Category II. PSR ¶ 63.
Probation thus calculated that, with a total offense level of 34 and a Criminal History Category II, Thieme’s resulting advisory guidelines range is 168 to 210 months’ imprisonment. PSR ¶ 94. The Government agrees with this calculation, and the defendant has made no objection to it. Indeed, in his plea agreement, Thieme stipulated that his total Guidelines offense level is 34.
Step 2. Guidelines Departures
After this Court has determined the Guideline range, it “must formally rule on the [departure] motions of both parties and state on the record whether [it is] granting a departure and how that departure affects the Guidelines calculation.” United States v. Lofink, 564 F.3d 232, 237-38 (3d Cir. 2009). This Court must rule on “departure motions on their merits,” “answer all of the questions that must be answered at Step Two,” and make clear whether any denial of the departure motion was because the motion was legally barred or “because the Court was exercising its discretion.” Id. at 233, 240. A court may not adopt a “practice of not separately considering departure motions” or solely Aconsidering departure arguments while applying the sentencing factors in ' 3553(a).” Id. A court also should make clear to what extent it is departing rather than varying under ' 3553(a). United States v. Floyd, 499 F.3d 308, 311 & n.5 (3d Cir. 2007).
If the Court is contemplating a departure “from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission,” it must give the parties “reasonable
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notice.” Fed. R. Crim. P. 32(h); see Irizarry v. United States, 553 U.S. 708, 71314 (2008); United States v. Vampire Nation, 451 F.3d 189, 197-98 (3d Cir. 2006).
In this case, neither party is seeking a departure and, indeed, the plea agreement entered into by the parties prohibits any such application.
Step 3. Variances
Finally, in Step 3 this Court may “tailor the sentence in light of other statutory concerns reflected in the sentencing factors of § 3553(a).” United States v. Merced, 603 F.3d 203, 213 (3d Cir. 2010) (internal quotation marks omitted). The Court must give “rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a)” and make an “individualized assessment based on the facts presented.” United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc) (internal quotation marks omitted).
Under § 3553(a), “[t]he Court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a). Those purposes are “(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2). In determining that sentence, this Court must consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), “the kinds of sentences available,” § 3553(a)(3), the Guidelines and Guideline range, § 3553(a)(4), the Guidelines’ policy statements, § 3553(a)(5), “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” § 3553(a)(6), and “the need to provide restitution to any victims of the offense,” § 3553(a)(7).
A sentencing court may not “presume that a sentence within the applicable Guidelines range is reasonable,” but must consider the § 3553(a) factors. Nelson v. United States, 555 U.S. 350, 352 (2009). The Guidelines nonetheless remain “the lodestone of sentencing” and the post-Booker sentencing regime sensibly “steer[s] district courts to more within-Guidelines sentences.” Peugh v. United States, 133 S. Ct. 2072, 2077 (2013). That is because “[t]he post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines and that they remain a meaningful benchmark through the process of appellate review.” Id. at 2076.
Here, the plea agreement entered into by the parties bars either party from seeking a variance. In any event, no variance is warranted and, for all of the
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reasons set forth below, the § 3553(a) factors all support a sentence at the top of the Guidelines range.
Each of the 3553(a) factors, including Thieme’s history and characteristics, the need to punish him, the need to protect the community and to specifically deter him from committing future acts of violence, the need to send a message to the others that this type of heinous crime will not be tolerated – demands a sentence at the top of the Guidelines range. Thieme has proven that he poses a danger to the community. Even the slightest encounter with him can lead to extreme violence.
Christopher Thieme’s “history and characteristics” show that he is an extremely dangerous person with a clear history of severe violence. As set forth in the PSR, Thieme has one prior conviction. PSR ¶ 62. In 2004, Thieme was convicted of aggravated assault and possession of a weapon for an unlawful purpose. He received a sentence of seven years’ imprisonment with three years’ parole. After serving roughly five years of his sentence, he was paroled. He then violated parole twice, and was returned to custody both times. The terrifying facts underlying Thieme’s prior conviction are set forth in detail in the PSR and the Government will not rehash them all here. Sufficed to say, in that case, Thieme bludgeoned in the head with a pool cue his fellow-student and dormitory neighbor for no reason at all, after luring the young woman back to his room. Id. The victim in that case, like the victim here, wrote to the sentencing court and spoke eloquently of the terror and devastation Thieme’s attack caused her. In the now chilling last words of her letter, that victim wrote of Thieme: “My greatest fear from all this is that he will be released and attack another girl. Difficult as it is, I will be willing to testify and relive that horrible morning because – beyond all else – I hope it prevents him from hurting me or anyone else again. Christopher Thieme should never be allowed that opportunity.”
That victim’s fears proved prescient. Less than two years after his release from prison, Thieme was plotting to kidnap and murder the victim in this case. A woman he met on two online dates, and who then made clear to him that she no longer wished to see him. Thieme’s reaction was to plan to have her kidnaped and murdered, and then to steal her property. Thieme plotted the crime extensively, even going so far as to draft a fake resignation letter in the victim’s name, and a falsified contract that he planned to use to try to sell her home once she was dead. The audio recordings in this case reveal Thieme coldly plotting to kill the victim as coldly and rationally as other people plan a shopping list.
It also bears noting that, as the PSR makes clear, Thieme also has a history of aggressive and sickening online harassment. PSR ¶ 66, 68. This includes his pending charge in Bergen County Superior Court for cyber-stalking a woman and her partner, which involved, among other conduct, sending images of headstones with the victim’s name engraved on them.
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Simply put, the need to protect the community from Thieme dominates the balancing in this case. Thieme is clearly intelligent; but rather than attempting to use his intelligence to rehabilitate himself or do anything productive after his first conviction, Thieme instead has resorted to cold-blooded violence. Indeed, if Thieme had approached someone else about kidnapping and murdering the victim in this case – someone who did not report it to law enforcement – the victim might well be dead.
The Government cannot state the impact of Thieme’s crimes – or the terror he poses – any better than the victim in this case already has in her extensive letter to the Court. See PSR ¶ 43. To put it as succinctly as possible, what Thieme has put her through has been horrific, a waking nightmare. It is up to this Court to ensure that Thieme cannot do this again – to this victim, to his prior victims or to any future victims.
A. The Court Should Explain the Reasons for its Sentence.
Finally, “it is not enough for the district court to carefully analyze the sentencing factors. A separate and equally important procedural requirement is demonstrating that it has done so.” Merced, 603 F.3d at 215-16 (emphasis by Circuit). First, “[t]he record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors. United States v. Sevilla, 541 F.3d 226, 232 (3d Cir. 2008) (internal quotation marks omitted). Second, “the court must acknowledge and respond to any properly presented sentencing argument which has colorable legal merit and a factual basis.” United States v. Ausburn, 502 F.3d 313, 329 & n.33 (3d Cir. 2007). “Explicit rulings are plainly to be preferred” even for lesser arguments, “both for the benefit of the parties and for this court on review.” United States v. Goff, 501 F.3d 250, 254-256 & n.10 (3d Cir. 2007). Third, the Court must provide “sufficient justifications on the record to support the sentencing conclusions.” Tomko, 562 F.3d at 567 (internal quotation marks omitted). “[M]erely reciting the § 3553(a) factors, saying that counsel’s arguments have been considered, and then declaring a sentence, are insufficient[.]” Manzella, 475 F.3d at 161 (internal quotation marks omitted).
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Conclusion For all of the above reasons, the Government respectfully submits that to protect the community from Thieme, and to adequately punish him and deter others, and to provide a sentence that is “sufficient but no greater than necessary” to meet the goals of sentencing, this Court should sentence Thieme to 210 months’ imprisonment, to be followed by three years’ supervised release.
Respectfully submitted, PAUL J. FISHMAN United States Attorney BY: /s/ Josh Hafetz Josh Hafetz Assistant U.S. Attorney cc: Patrick McMahon, Esq. Kimberly M. Artist, U.S. Probation Officer
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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

CHRISTOPHER THIEME, Petitioner,
v. UNITED STATES OF AMERICA,
Respondent.

Civil Action No. 19-15507 (SDW) MEMORANDUM OPINION

IT APPEARING THAT: 1. On December 22, 2016, this Court entered an amended judgment of conviction sentencing Petitioner, Christopher Thieme to 210 months imprisonment. (Docket No. 16-294 at ECF No. 17). Petitioner did not appeal. 2. Two and a half years later, on or about June 14, 2019, Petitioner filed a motion purporting to seek relief either under § 2255 or the writ of audita querela. (Docket No. 16-294 at ECF No. 18). 3. On June 27, 2019, this Court entered an order finding that Petitioner’s criminal motion could only proceed as a motion to vacate sentence under 28 U.S.C. § 2255, and providing Petitioner with the notice required by Castro v. United States, 540 U.S. 375 (2003). (Docket No. 16-294 at ECF No. 19). Petitioner thereafter filed a response to that order, electing to have his previous motion recharacterized as a § 2255 motion and to proceed on that motion. (Docket No. 16-294 at ECF No. 20). 4. The Clerk of the Court therefore refiled Petitioner’s response and his prior motion as his motion to vacate sentence in this matter. (ECF No. 1). Because Petitioner did not use the form required for such motions filed by pro se petitioners, this Court thereafter administratively
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terminated this matter until such time as Petitioner refiled his motion using the required form.
(ECF No. 2).
5. On August 21, 2019, Petitioner refiled his motion on the required form. (ECF No. 4).
6. On September 3, 2019, this Court entered an order screening Petitioner’s motion to
vacate sentence and entered an order directing Petitioner to show cause why his motion should not
be dismissed as untimely filed. In that order, this Court found Petitioner’s motion untimely absent
some basis for tolling, explaining as follows:
Motions to vacate sentence are subject to a one year statute of limitations which runs from the latest of several possible dates: the date on which the petitioner’s conviction becomes final, the date on which an impediment to making his motion is removed, the date on which the Supreme Court first recognizes the claims raised where a claim is based on a newly recognized right made retroactive to cases on collateral review, or the date on which the facts supporting the claim first could have been discovered through due diligence. 28 U.S.C. § 2255(f)(1)-(4). “In most cases, the operative date from which the limitation period is measured will be . . . the date on which the judgment of conviction becomes final.” Dodd v. United States, 545 U.S. 353, 357 (2005) (internal quotations omitted). Where a petitioner fails to file a direct appeal, his conviction is considered final, when the time for the filing of an appeal has run. See Kapral v. United States, 166 F. 3d 565, 577 (3d Cir. 1999).
In this matter, Petitioner’s amended judgment of conviction was entered on December 22, 2016. Docket No. 16-294 at ECF No. 17). Petitioner did not file an appeal, and his conviction therefore became final fourteen days later on January 5, 2017. Kapral, 166 F.3d at 577, Fed. R. App. P. 4(b)(1)(A)(i). Thus, absent some basis for a start date other than the finality of his conviction or some basis for equitable tolling, Petitioner’s one year limitations period had elapsed as of January 5, 2018, well over a year before he filed his initial audita querela petition which became the basis for his current motion to vacate sentence in June 2019. (Docket No. 16-294 at ECF No. 18).
In his habeas petition, Petitioner only argues one basis for an alternative start date for the limitations period. Specifically, he argues that the Supreme Court’s decision in Rosales-Mireles v. United States, --- U.S. ---, 138 S. Ct. 1897 (2018), announced a new
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rule of law on which his claims rely which should be made retroactive to collateral relief cases. Pursuant to 28 U.S.C. § 2255(f)(3), the one year limitations period will run from “the date on which the right asserted was initially recognized by the Supreme Court” in those cases where “that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” A petitioner seeking to take advantage of this later start date must show that his claim relies on a rule of law “newly recognized” by the Supreme Court, and that that newly recognized right has been made retroactive to cases on collateral review. Dodd, 545 U.S. at 358.
The underlying problem with Petitioner’s assertion that his claim relies on Rosales-Mireles is that, even if this Court were to assume that the case announced a new rule of law recognizing a new right[,] his argument in no way relies on the issue discussed in Rosales-Mireles. In Rosales-Mireles, the Supreme Court resolved a circuit split over the interpretation of Federal Rule of Criminal Procedure 52(b). 138 S. Ct. at 1906. Specifically, the Court resolved a split over whether and when a court of appeals should grant relief on a claim of plain guidelines error on direct appeal under the rule. Id. at 1906-1911. Thus, that case dealt with the proper use of discretion by a direct appellate court in determining when a remand for a resentencing is warranted based on plain guidelines error. Petitioner does not claim that the Court of Appeals committed any error in applying Rule 52(b) – he cannot make such a claim as he never filed a direct appeal. Rosales-Mirales is thus not the basis for his claims, and cannot provide him a later start date of the limitations period. Thus, absent some basis for tolling, Petitioner’s current motion to vacate sentence remains time barred by well over a year.
Although the § 2255 limitations period is subject to equitable tolling where the facts of the matter so warrant, such tolling “is a remedy which should be invoked ‘only sparingly.’” United States v. Bass, 268 F. App’x 196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). Tolling therefore only applies where a petitioner shows “(1) that he faced ‘extraordinary circumstances that stood in the way of timely filing,’ and (2) that he exercised reasonable diligence.” Johnson, 590 F. App’x at 179 (quoting Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). Excusable neglect is insufficient to establish a basis for equitable tolling. United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013).
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Petitioner does not present any basis for equitable tolling in his motion, and this Court is aware of no such basis from the facts presented. Because Petitioner did not address the equitable tolling issue in his motion, however, this Court will permit Plaintiff one opportunity to show why his motion to vacate sentence should not be dismissed as time barred. (ECF No. 5 at 2-4). 7. Following an extension, Petitioner thereafter filed a response to the Order (ECF No. 8), as well as a motion seeking a declaratory judgment (ECF No. 10), and several motions seeking to amend and supplement his motion to vacate sentence. (ECF Nos. 13-15). As this Court has considered Petitioner’s amendments and supplements in deciding this matter, Petitioner’s motions to amend and supplement his motion to vacate sentence (ECF Nos. 13-15) are granted only to the extent that Petitioner requests consideration of his arguments.1 As this Court will dismiss Petitioner’s motion to vacate sentence as time barred for the reasons set forth below, Petitioner’s motion seeking a declaratory judgment (ECF No. 10), which essentially sought a declaration that he is entitled to relief, shall also be denied as moot in light of the dismissal of his motion to vacate sentence. 8. In his post-Order to Show Cause briefing, Petitioner presents five claims – three in which he challenges various issues with his sentence and restitution order, a claim in which he argues his counsel was ineffective in failing to raise these arguments, and a new claim in which he asserts that one of the statutes out of which his conviction arises – 18 U.S.C. § 1958, which criminalizes the use of interstate commerce in the commission of murder for hire – is constitutionally void for vagueness. All of these claims were raised long after the one year statute
1 To the extent that Petitioner seeks to file a preemptive Rule 60(b) motion challenging a decision this Court has not yet issued dismissing his petition as time barred (see ECF No. 12) that motion is denied. A Rule 60(b) motion may only be filed to challenge an order or judgment issued by the Court, it may not be used to attack a decision that has not yet been issued.
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of limitations had run in this matter, and Petitioner’s claims would therefore be time barred unless he can show a basis for equitable tolling, or a statutory basis for a later start date for the one year statute of limitations.
9. Petitioner presents three arguments for why his claims should not be time barred – a repetition of his already rejected argument that Rosales-Mireles should provide a later start date; an argument in which he asserts that his new void for vagueness claim should have a later start date as he believes that claim arises out of the Supreme Court’s decision in United States v. Davis, --- U.S. ---, 139 S. Ct. 2319 (2019), or should otherwise be permitted to proceed as he believes he’s actual innocent because of his vagueness challenge; an argument in which he asserts that his ineffective assistance of counsel claim arises out of Garza v. Idaho, --- U.S. ---, 139 S. Ct. 738, 746 (2019), and should therefore be timely as such; and a general claim in which he asserts that he should receive equitable tolling because he believes his plea agreement is unconstitutional and otherwise led to a miscarriage of justice.
10. Initially, the Court notes that Petitioner’s Rosales-Mireles argument remains meritless for the reasons expressed in the Court’s Order to Show Cause. Rosales-Mireles did not recognize the right that Petitioner seeks to vindicate – it instead merely resolved a circuit split regarding appellate procedure – and thus provides no basis for a later start date for the statute of limitations for Petitioner’s claims.
11. Petitioner’s reliance on Garza is similarly misplaced. To the extent that Petitioner intended to raise a claim that counsel proved ineffective in not filing a direct appeal on his behalf,2
2 Although Petitioner asserts in his response to the OTSC that he wished to raise such a claim under Garza, he never sought to raise such a claim in his various amendments, and mentions Garza only tangentially in his motion to vacate sentence. For the sake of this opinion, however, this Court assumes Petitioner desired to raise such a claim as part of his ineffective assistance of counsel ground for relief.
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Garza does not provide a later start date for the statute of limitations. In order to provide a later start date, Garza would have had to newly recognize the right at issue, and that right would have had to have been made retroactive to cases on collateral review. Dodd, 545 U.S. at 358. As to the first question, the Supreme Court in Garza did not recognize a new right – the Court by its own logic was merely applying the rule announced in Roe v. Flores-Ortega, 528 U.S. 470 (2000), to those circumstances where there was an applicable appellate waiver. Garza, 139 S. Ct. at 745-48 (“reaffirm[ing]” the applicability of Flores-Ortega notwithstanding an appellate waiver). Even assuming arguendo that Garza had announced a new rule of constitutional law, a finding this Court does not make, Petitioner would still not be entitled to a later start date because he cannot meet the final requirement – that Garza has been made retroactive to cases on collateral review. Garza did not on its face state or imply that it should be applied retroactively, nor has either the Supreme Court or Third Circuit rendered the case retroactive to collateral review cases. Indeed, the few district courts of which this Court is aware to have addressed the question have found to the contrary. See, e.g., United States v. Price, No. 08-312, 2020 WL 516357, at *3 n. 1 (W.D. Pa. Jan. 23, 2020) (noting Garza has not been made retroactive); United States v. McGee, No. 16-95, 2019 WL 4248887, at *2 (E.D. Ky. Sept. 6, 2019) (Garza did not announce new rule and has not been made retroactive and does not provide later date for § 2255(f) statute of limitations); United States v. Gibson, Nos. 16-746, 19-420, 2019 WL 5213838, at *3 (D. Haw. Oct. 16, 2019) (same); Macklin v. Dowling, No. 19-375, 2019 WL 4727070, at * (W.D. Ok. Aug. 30, 2019) (same). As Garza neither announced a new rule of law on which Petitioner relies, nor has been made retroactive to cases on collateral review, Garza does not provide Petitioner with a later start date for his statute of limitations. Dodd, 545 U.S. at 358.
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12. Petitioner’s reliance on Davis is also misplaced. Davis did not invent the void for vagueness concept, nor did it apply it to the statute Petitioner wishes to challenge. See Davis, 139 S. Ct. at 2325, 2327-33 (collecting cases dating back to the late 19th century applying the void for vagueness doctrine to various statutes and applying that rule only to 18 U.S.C. § 924(c)). Petitioner’s void for vagueness claim therefore does not arise out of any newly recognized right created by Davis, and Davis therefore cannot provide Petitioner with a later start date for the running of his limitations period.
13. Likewise, Petitioner’s claim that he is actually innocent is without merit. Although actual innocence can serve as a gateway to pierce the § 2255(f) statute of limitations, see McQuiggan v. Perkins, 569 U.S. 383, 391-99 (2013), Petitioner is not actually innocent of using the means of interstate commerce to pursue a murder for hire in violation of 18 U.S.C. § 1958(a). Petitioner bases his claim of innocence on the idea that § 1958(a) is “void for vagueness” because certain prisoners have received multiple charges under the statute arising out of a single plot to commit murder for hire which was enacted through multiple uses of the means of interstate commerce, a practice the First Circuit disclaimed in United States v. Gordon, 875 F.3d 26, 31-37 (1st Cir. 2017). Contrary to Petitioner’s assertion, however, Gordon did not argue that this practice rendered the statute void for vagueness, instead the First Circuit merely ruled that a defendant can receive only one conviction arising out of the statute for each plot to commit murder for hire in which he engaged, regardless of the number of phone calls, mailings, or use of interstate commerce that plot involved. Id. at 38. Petitioner’s guilty plea suffers from no such issue. Nothing Petitioner has submitted nor which was discussed in Gordon in any way indicates that the elements of the crime contained in § 1958(a) are vague. As the statute is clear about what conduct is prohibited – the use of the means of interstate commerce to offer “anything of pecuniary value” to another with
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the intent that a murder be committed in violation of state and federal law – and as the statute is not otherwise subject to the arbitrariness concerns that otherwise animate the void for vagueness doctrine, Petitioner has not shown that the statute is unconstitutionally vague, and has thus not in any way shown his “actual innocence.” He is therefore still fully subject to the one year limitations period in this matter.
14. Finally, this Court has considered all of the arguments presented by Petitioner and finds that he has failed to show any basis for equitable tolling as he has neither shown that he was diligent nor that he was prevented from earlier raising his claims due to an extraordinary circumstance. Johnson, 590 F. App’x at 179. Petitioner delayed two and a half years before seeking to raise his challenges, and has failed to present any persuasive argument as to why he could not have raised his claims sooner. That Petitioner agreed to a plea agreement that he now dislikes is no extraordinary circumstance, and Petitioner may not evade the § 2255 time bar based on his distaste for his earlier decisions. As this Court perceives no valid basis for equitable tolling and as Petitioner has failed to show any legal basis for a later start date for his statute of limitations in his various filings, Petitioner’s motion to vacate sentence (ECF No. 4) is dismissed with prejudice as time barred.
15. Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from the final order in that proceeding unless he makes “a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). “When the district court denies a habeas [matter] on procedural grounds without reaching the prisoner's underlying constitutional claim, a
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[Certificate of Appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the [Petitioner’s § 2255 motion] states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As jurists of reason would not debate that Petitioner’s motion to vacate is clearly time barred, Petitioner has failed to make a substantial showing of the denial of a constitutional right, and he is therefore denied a certificate of appealability.
16. In conclusion, Petitioner’s motions to amend (ECF Nos. 12-15) are granted only to the extent that this Court has considered Petitioner’s filings in this decision, Petitioner’s first motion to amend (ECF No. 12) is DENIED to the extent Petitioner sought to file a pre-emptive motion pursuant to Rule 60(b), Petitioner’s motion to vacate sentence (ECF No. 4) is DISMISSED WITH PREJUDICE as time barred, Petitioner is DENIED a certificate of appealability, and Petitioner’s motion seeking a declaratory judgment (ECF No. 10) is DENIED as moot in light of the dismissal of his motion to vacate sentence. An appropriate order follows.

Dated: March 24, 2020

s/ Susan D. Wigenton Hon. Susan D. Wigenton, United States District Judge

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CERTIFICATION OF SERVICE
I hereby certify that today I caused a copy of this letter to be served by first class mail, postage prepaid, in an envelope marked “Special Mail,” upon Christopher Thieme at his place of confinement:
Christopher Thieme Reg. No. 69451-050 FCI Fort Dix P.O. Box 2000 Joint Base MDL, NJ 08640

Dated: April 30, 2020

_______________________ Mark E. Coyne Assistant U.S. Attorney Chief, Appeals Division

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 20-1839

GCO-006

Christopher Thieme, Appellant

v.

United States of America

(D.N.J. No. 2-19-cv-15507)

Present: AMBRO, CHAGARES and RESTREPO, Circuit Judges
1. Motion by Appellant for Bail.
2. Response filed by Appellee to Motion for Bail.
Respectfully, Clerk/slc
______________________________ O R D E R _______________________________ The foregoing motion is DENIED. Thieme has failed to show that “he has a high probability of success” on his 28 U.S.C. § 2255 motion or that “extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992).

Dated: SLC/cc:

By the Court,
s/Thomas L. Ambro Circuit Judge
May 4, 2020 Christopher ThiemeA True Copy: Mark E. Coyne, Esq.
Patricia S. Dodszuweit, Clerk

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U.S. Department of Justice

United States Attorney District of New Jersey

___________________________________________________________________________________________________________________________

Mark E. Coyne Assistant U.S. Attorney

970 Broad Street, 7th floor Newark, New Jersey 07102

973-297-2002

April 27, 2020

By ECF
Patricia S. Dodszuweit, Clerk U.S. Court of Appeals for the Third Circuit 601 Market Street, Room 21400 Philadelphia, PA 19106-1790
Re: Aigbekaen v. BOP, No. 20-1351
Dear Ms. Dodszuweit:
I write on behalf of the Bureau of Prisons (“BOP”) to oppose Raymond Aigbekaen’s request for bail pending this appeal from the dismissal of his jurisdictionally improper petition under 28 U.S.C. § 2241 by the United States District Court for the District of New Jersey (Hon. Noel L. Hillman, U.S.D.J.).
Aigbekaen is serving a fifteen-year term of imprisonment for his convictions in the United States District Court for the District of Maryland for sex trafficking a minor and other very serious offenses. United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019). The Fourth Circuit affirmed Aigbekaen’s judgment of conviction and sentence by precedential opinion on November 21, 2019. Id. That Court of Appeals denied Aigbekaen’s petition for rehearing en banc on February 24, 2020. United States v. Aigbekaen, No. 17-4109, Doc. No. 252 (4th Cir. Feb. 24, 2020). He has until May 25, 2020 to petition the Supreme Court for a writ of certiorari, barring any extensions. S. Ct. R. 13.3; see Young v. Harper, 520 U.S. 143, 147 n.1 (1997) (timeliness of petition for certiorari measured from date court of appeals disposed of rehearing petition). That means Aigbekaen’s judgment of conviction is not yet final, and the one-year limitations period for filing a motion under 28 U.S.C. § 2255 has not yet begun to run. See Clay v. United States, 537 U.S. 522, 532 (2003).
During his direct appeal, Aigbekaen sought post-judgment relief in the District of Maryland, which the district court properly dismissed without prejudice as a premature § 2255 motion. United States v. Aigbekaen, 720 F. App’x 156, 157 (4th Cir. 2018) (per curiam). Aigbekaen also sought bail repeatedly during his direct appeal, which the district court and the Fourth Circuit properly denied. United States v. Greene et al., No. 1:15-cr-462 (D. Md.), ECF Nos. 302–303, 306–308, 320, 326, 335, 337–339, 362. He also moved for modifications of his sentence and to be transferred to a halfway house during his direct appeal, all of which the district court denied. Id., ECF Nos. 311, 321, 328–329, 357–358. In addition, on March 2,

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2020, Aigbekaen moved for compassionate release, which the district court also denied. Id., ECF Nos. 372– 373. And he has a pending motion for a new trial on the basis of supposedly newly discovered evidence. Id., ECF Nos. 346–347, 374–375.
All of that underscores the frivolous nature of this appeal and the even more frivolous nature of Aigbekaen’s request for bail. A § 2255 motion cannot be “inadequate or ineffective to test the legality of his detention” in the way that would permit Aigbekaen to resort to § 2241 through 28 U.S.C. § 2255(e) if he has not even exhausted his direct appeal and can file a timely § 2255 motion once he does. See Aigbekaen, 720 F. App’x at 157 & n.* (explaining that “the district court did not treat” Aigbekaen’s premature “filing as [his] first § 2255 motion” and, if his “direct appeal is unsuccessful, he need not seek prefiling authorization” before “filing a § 2255 motion”). Furthermore, bail pending a district court’s disposition of a habeas corpus petition is available “only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success” or “extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (quotation marks omitted). “On the other hand, when bail is sought by a prisoner who has been convicted” in “federal court and the district court has denied the collateral relief sought, the standard for bail is” even “more stringent.” Id. at 1238. Besides, the sentencing judge—who, unlike the judges of this Court, is thoroughly acquainted with everything that would bear on bail here— just deemed Aigbekaen unworthy of compassionate release.
For these reasons and those in BOP’s response to this Court’s notice of possible summary action, this Court should summarily affirm the dismissal of Aigbekaen’s § 2241 petition and deny him bail.
Respectfully submitted, CRAIG CARPENITO UNITED STATES ATTORNEY
By: Mark E. Coyne Assistant U.S. Attorney Chief, Appeals Division
cc: Raymond Aigbekaen, pro se Reg. No. 94655-379 FCI Fort Dix P.O. Box 2000 Joint Base MDL, NJ 0864
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CERTIFICATION OF SERVICE
I hereby certify that today I caused a copy of this letter to be served by first class mail, postage prepaid, upon Raymond Aigbekaen at his place of confinement:
Raymond Aigbekaen Reg. No. 94655-379 FCI Fort Dix P.O. Box 2000 Joint Base MDL, NJ 08640

Dated: April 27, 2020

_______________________ Mark E. Coyne Assistant U.S. Attorney Chief, Appeals Division

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 20-1351

GCO-007

RAYMOND AIGBEKAEN, Appellant

v.

BUREAU OF PRISONS; DAVID ORTIZ (Warden, FCI Fort Dix.)

(D.N.J. No. 1-19-cv-19844)

Present: AMBRO, CHAGARES and RESTREPO, Circuit Judges
1. Appellant’s Motion titled “Motion to Amend” Requesting Bail Pending Appeal on Habeas Corpus;
2. Response by Appellee to Appellant’s Motion titled “Motion to Amend” Requesting Bail Pending Appeal on Habeas Corpus.
Respectfully, Clerk/TMK
______________________________ O R D E R _______________________________ The foregoing Motion is DENIED. Aigbekaen has failed to show exceptional circumstances or that he is likely to succeed on the merits of his appeal on habeas corpus as required for his release pending the disposition of his case under Fed. R. App. P. 23(b); Landano v. Rafferty, 970 F.2d 1230, 1238–39 (3d Cir. 1992).

Dated: April 28, 2020 CJG/cc: Mark E. Coyne, Esq.
Norman Gross, Esq. Raymond Aigbekaen

By the Court, s/Thomas L. Ambro Circuit Judge
A True Copy:

A63

Clerk

Case 1:20-cv-05496-RMB Document 28-6 Filed 05/18/20 Page 1 of 17 PageID: 1236

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTO CONCEPCION, individually and on behalf of others similarly situated,

Petitioners,

Civil Action No. 20-05496(RMB)

v.

DAVID E. ORTIZ, Warden of the Federal Correctional Institution, Fort Dix and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons,

Respondents. DECLARATION OF DR. NICOLETTA TURNER FOSTER

I, Nicoletta Turner-Foster, M.D., do hereby declare, certify and state as follows:

1. I am employed by the United States Department of

Justice, Federal Bureau of Prisons (BOP). I currently work as

the Clinical Director at the Federal Correctional Institution

(“FCI”) Fort Dix, New Jersey. I have been employed by BOP

since 2001.

2. In my position as the Clinical Director at FCI Fort

Dix, I am responsible for coordinating comprehensive medical,

dental, and mental health services of the highest quality while

maintaining a clean, safe, and secure environment for nearly

4,000 inmates at both our FCI Low security institution as well

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as our Federal Prison Camp (FPC) at Fort Dix. The Health Services Department is staffed by a comprehensive team of BOP and Public Health Service health care workers, accompanied by professional contract staff committed to providing the highest standards of professionalism and dedication to the inmate population.
3. With respect to COVID-19, specifically, I am involved on a daily basis in the identification, planning, and implementation of all Bureau directives for preventing the spread of COVID-19 at FCI Fort Dix including the Camp. Through this role, I have knowledge of both the Bureau’s national directives relating to COVID-19 and the additional steps that FCI Fort Dix, specifically, has taken to combat COVID-19 within the facility. Accordingly, through the course of my official duties, I have personal knowledge regarding the numerous measures, discussed below, that have been implemented both Bureau-wide and at FCI Fort Dix in order to prevent and manage the spread of COVID-19. I. NATIONAL STEPS TAKEN
4. Prior to discussing the measures taken at FCI Fort Dix, I will first discuss the measures taken throughout the BOP. In January 2020, the Bureau began Phase One of its Action Plan for COVID-19. Phase One activities included, among other things, seeking guidance from the BOP’s Health Services Division
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regarding the COVID-19 disease and its symptoms, where in the United States infections were occurring, and the best practices to mitigate its transmission. See https://www.bop.gov/resources/news/20200313_covid-19.jsp. In addition, an agency task force was established to begin strategic planning for COVID-19 Bureau-wide. This strategic planning included building on the Bureau’s existing procedures for pandemics, such as implementing its pre-approved Pandemic Influenza Plan. From January 2020 through the present, the Bureau has been coordinating its COVID-19 efforts with subjectmatter 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. See https://www.bop.gov/resources/news/20200313_covid-19.jsp.
Action Plan for COVID-19, Phase Two 5. On March 13, 2020, the Bureau implemented Phase Two of its Action Plan. Phase Two put into place a number of restrictions across all Bureau facilities over a 30-day period, to be re-evaluated upon the conclusion of that time period. Specifically, the Bureau suspended the following activities for an initial period of 30 days, with certain limited exceptions:
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social visits; legal visits; inmate facility transfers; official staff travel; staff training; contractor access; Volunteer visits; and tours.
6. During Phase Two, inmates were subjected to new screening requirements. Specifically, all newly arriving Bureau inmates were screened for COVID-19 symptoms and “exposure risk factors,” including, for example, if the inmate had traveled from or through any high-risk COVID-19 locations (as determined by the CDC), or had had close contact with anyone testing positive for COVID-19. Asymptomatic inmates with risk of exposure are placed in quarantine. Symptomatic inmates are placed in isolation until they test negative for COVID-19 or are cleared by medical staff as meeting CDC criteria for release from isolation.
7. All staff were also subjected to enhanced health screening in areas of “sustained community transmission,” as determined by the CDC, and at medical referral centers. The enhanced screening measures required all staff to self-report any symptoms consistent with COVID-19, as well as any known or suspected COVID-19 exposure, and further required all staff to have their temperature taken upon entry into any Bureau facility. Staff registering a temperature of 100.4 degrees Fahrenheit or higher are barred from the facility on that basis
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alone. A staff member with a stuffy or runny nose can be placed on leave by a medical officer.
8. Finally, in addition to the measures listed above, the Bureau implemented national “modified operations” in order to maximize social distancing within Bureau facilities. These modifications included staggered meal and recreation times in order to limit congregate gatherings. Additionally, the Bureau established a set of quarantine and isolation procedures for known or potential cases of COVID-19.
Action Plan for COVID-19, Phase Three 9. On March 18, 2020, the Bureau implemented Phase Three of the COVID-19 Action Plan for Bureau locations that perform administrative services (i.e., non-prison locations), which followed DOJ, Office of Management and Budget, and OPM guidance for maximizing telework. In this phase, individuals who had the ability to telework and whose job functions did not require them to be physically present were directed to begin teleworking. 10. Additionally, as part of this phase, and in accordance with the Pandemic Influenza contingency plan, all cleaning, sanitation, and medical supplies were inventoried. Action Plan for COVID-19, Phase Four 11. On March 26, 2020, the Bureau implemented Phase Four of its Action Plan. In Phase Four, the Bureau revised its preventative measures for all institutions. Specifically, the
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agency updated its quarantine and isolation procedures to require all newly admitted inmates to the Bureau, whether in areas of sustained community transmission or not, to be assessed using a screening tool and temperature check (further explained below). This screening tool and temperature check applied to all new intakes, detainees, commitments, prisoners returned on writ from judicial proceedings, and parole violators, regardless of their method of arrival. Thus, all new arrivals to any Bureau institution—even those who were asymptomatic—were placed in quarantine for a minimum of 14 days or until cleared by medical staff. Symptomatic inmates were placed in isolation until they tested negative for COVID-19 or were cleared by medical staff as meeting CDC criteria for release from isolation.
Action Plan for COVID-19, Phase Five 12. On March 31, 2020, the Director of the Bureau ordered the implementation of Phase 5 of its COVID-19 Action Plan, which took effect on April 1, 2020. Specifically, the Director ordered the following steps to be taken:
a. For a 14-day period, inmates in every institution will be secured in their assigned cells/quarters to decrease the spread of the virus.
b. During this time, to the extent practicable, inmates should still have access to programs and services
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offered under normal operating procedures, such as mental health treatment and education.
c. In addition, the Bureau is coordinating with the United States Marshals Service (USMS) to significantly decrease incoming movement during this time.
d. After 14 days, this decision will be re-evaluated and a decision made as to whether or not to return to modified operations.
e. Only limited group gathering will be afforded, with attention to social distancing to the extent possible, to facilitate commissary, laundry, showers, telephone, and Trust Fund Limited Computer System (TRULINCS) access.
f. Provided inmates access to programs and services offered under normal operating procedures, such as mental health treatment and education.
g. In addition, the Bureau coordinated with the United States Marshals Service (USMS) to significantly decrease incoming movement during this time.
h. All staff and inmates were issued an appropriate face covering and strongly encouraged to wear the face covering when in public areas when social distancing cannot be achieved.
i. Contractor access to BOP facilities is restricted to only those performing essential services (e.g., medical
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or mental health care, religious, etc.) or those who perform necessary maintenance on essential systems. All volunteer visits are suspended absent authorization by the Deputy Director of BOP. Any contractor or volunteer who requires access will be screened for symptoms and risk factors.
j. Social and legal visits were stopped as of March 13, 2020, and remain suspended until at least May 18, 2020, to limit the number of people entering the facility and interacting with inmates. In order to ensure that familial relationships are maintained throughout this disruption, BOP has increased detainees’ telephone allowance to 500 minutes per month. Tours of facilities are also suspended. Legal visits will be permitted on a case-by-case basis after the attorney has been screened for infection in accordance with the screening protocols in place for prison staff, contractors, and visitors.
k. Further details and updates of BOP’s modified operations are available to the public on the BOP website at a regularly updated resource page: www.bop.gov/coronavirus/index.jsp. 13. At FCI Fort Dix, during Phase Five, commissary items, laundry, recreation materials, education materials, and psychology services were delivered directly to inmates housing
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units. Feeding is done by grab-and-go meals, housing unit by housing unit. Pill line and sick call triage are done simultaneously during the grab-and-go meal time-frame, again, unit-by-unit. At FCI Fort Dix, inmates were otherwise locked in their housing unit for the remainder of the day and are never mingling with inmates from other housing units. As of May 18, 2020, inmates will be permitted a short outdoor recreation time in front of their housing unit, two days per week. Inmates will not mingle with inmates from other housing units during the recreation period.
Action Plan for COVID-19, Phase Six 14. On April 13, 2020, the Director of the Bureau ordered the implementation of Phase 6 of its COVID-19 Action Plan. Specifically, the Director ordered an extension of the nationwide action plan in Phase 5, which applies to medical screening, limited inmate gathering, daily rounds, limited external movement, and fit testing, until May 18, 2020. Phase Six has been implemented at FCI Fort Dix. II. STEPS TAKEN AT FCI FORT DIX TO ADDRESS COVID-19 15. The FCI Fort Dix Clinical Staff consists of 4 Physicians, 10 Mid-Level Providers, 11 Registered Nurses, 2 Infection Control/Improving Performance Nurses, and 2 Medication Technicians, as well as 4 Pharmacists, 3 Dentists, and 2 Dental Hygienists. The Health Services Department is accredited by The
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Joint Commission (JC), the American Correctional Association (ACA) and the Accreditation Association for Ambulatory Health Care (AAAHC).
16. In addition to the steps taken at the national level, FCI Fort Dix itself has also taken a number of additional measures in response to the COVID-19 pandemic, including providing inmate and staff education; conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures in accordance with Bureau policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and taking a number of other preventative measures.
17. From the outset of the COVID-19 pandemic, FCI Fort Dix officials have provided regular updates to inmates and staff regarding the virus and the Bureau’s response, and have educated inmates and staff regarding measures that they themselves should take to stay healthy. Since March 2, 2020, the Warden has posted guidance to inmates through the TRULINCS electronic messaging system more than five times. Topics have included CDC guidance on COVID-19 and proper handwashing, how to stop the spread of germs, and proper sanitation. On March 25, 2020, written guidance was posted inside of housing units. Staff have also been educated through informational e-mails.
18. Starting on March 16, 2020, all staff and necessary contractors entering the confines of the institution had to
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complete a medical questionnaire and temperature check. This practice is still currently being utilized. Staff with any symptoms or fever are sent home by medical staff.
19. At the onset of the pandemic, staff were also encouraged to be “fit tested” for N-95 masks which are necessary for entry to the isolation unit and escorted outside medical trips to other facilities.
20. Any and all new inmates coming in to FCI Fort Dix are also screened for any fever or symptoms. They are placed in an automatic 14-day quarantine in a specifically designated housing unit (only for these inmates) prior to release to their assigned housing unit.
21. With respect to healthcare procedures for the Low facility, all inmates have temperature checks and a symptom assessment every other day (East and West Compounds alternate days). In order to minimize the movement of inmates, sick call slips are being distributed in the housing units. The inmate will then be triaged at the daily Pill Line (for inmates necessitating non-self-carry medication). Inmates with COVID symptoms are seen immediately. Others are scheduled for a later appointment. The appointments are still handled in the Health Services building; however, the appointments are scheduled by housing unit and are limited to approximately 20 inmates so that they can socially distance in the Health Services building.
11

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Pill Line is conducted while inmates are obtaining their graband-go meal. Pill line is conducted one unit at a time, again to minimize cross contamination between inmates and housing units.
22. From the outset, in accordance with CDC guidance, quarantine and isolation areas were established for the institution. Based on the outbreak of COVID-19 at the Camp (discussed further below), and the need for a larger isolation area, the decision was made to make housing unit 5851 in the Low security institution, the isolation unit. There was no separated area large enough in the Camp to complete this task. The second floor of Unit 5851 are positive inmates and the third floor are inmates in recovery, soon to be released back to general population. FCI Fort Dix does not plan to consolidate inmates (at either the Low or the Camp) with preexisting medical conditions into a single space. It is safer to spread those inmates out across the institution
23. In April 2020, the institution obtained an FDA approved rapid Abbott testing machine which allows us to test approximately 75 inmates in a 24/hour period (based on the length of the test). Prior to obtaining the Abbott testing machine, the institution utilized send-out testing. The Abbott tests take approximately 20 minutes per inmate, and provide immediate results. To date, no inmate at FCI Fort Dix Low has
12

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tested positive for COVID-19. If an inmate were to exhibit symptoms of the virus or report symptoms of the virus, he immediately would be escorted to the Health Services building and examined by a clinician. If COVID-19 is suspected, he would be tested immediately using the Abbott machine. If the inmate tested positive, he would be immediately isolated in Unit 5851. To date, one LOW inmate has been tested for COVID-19 based on symptoms and after examination by a clinician. He tested negative. FCI Fort Dix currently has no plan to test the entire Low, but it has testing capacity and supplies to address issues if they arise. Because it takes 20 minutes to administer, BOP can conduct approximately 75 tests in a 24-hour period day. Moreover, the institution currently has 432 Abbott test kits available. We are expected to obtain approximately 250 test kits per week for the near future. This would allow us to test an entire housing unit in the Low institution if necessary, although this process would take approximately one week.
24. As of April 5, 2020, all inmates and staff were provided surgical masks. On April 16, 2020, staff and inmate masks became mandatory. Staff and inmates were issued a weekly supply of surgical masks. During the week of April 29, 2020, inmates and staff were supplied three reusable cloth masks. Inmate masks are washed twice weekly by Laundry staff. Staff were issued guidance by way of e-mail on how to use and wash the
13

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masks. Inmates are encouraged routinely to maintain sanitation and social distancing. Staff have also been issued a continual supply of surgical masks, and during the last week of April, staff were also provided two cloth masks. III. PRISON CAMP SPECIFICS
25. The first Camp inmate tested positive for COVID-19 on April 3, 2020. The inmate was immediately isolated upon showing of symptoms, and twice daily temperature checks were initiated at the Camp. Inmates showing symptoms of the virus, or reporting symptoms of the virus were also isolated and tested. The Camp was also made a Quarantine Unit, meaning any staff member entering the Unit had to don PPE including surgical mask, gown, face shield, goggles and gloves. In the Camp, all services are provided inside the Unit including Food Service, Medical, Psychology, Education, and Commissary.
26. Based on the discovery of COVID-positive inmates in the Camp, the BOP deployed the Abbott test machine to our institution so that we could rapidly test a larger number of inmates at the institution. Based on the positive inmates at the Camp, and in an effort to decrease the population at the Camp to assist in social distancing efforts, a decision was made to place all COVID-19 positive inmates in 5851. The decision was also made to test all inmates eligible for release under the CARES Act, and then house them in a separate housing unit, 5735.
14

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As of today’s date, 35 inmates are housed in Unit 5735. 27. As of today’s date, 259 COVID-19 tests have been
administered, which includes testing of the entire Camp population. Of those tests, 58 inmates tested positive for COVID-19 from the minimum security Camp. Currently, 22 inmates remain in isolation in Unit 5851 and 27 are on the third floor in recovery, pending return to the Camp. Inmates are moved to the recovery floor after a period of isolation for 10 days and symptom free. Staff entering this housing unit are limited to essential staff and must wear full protective PPE including N-95 mask, face shield, a gown and gloves. One inmate was hospitalized based on COVID-19 symptoms. He was never intubated and has since returned to the institution. He has twice tested negative and is in the recovery unit. No other inmates have been hospitalized with COVID-19 complications, and a number of the inmates are completely asymptomatic.
28. Currently only inmates verified negative to the COVID19 virus are housed at the Camp, a total of 124 inmates. This number provides sufficient space for the inmates to social distance. IV. PETITIONER SPECIFICS
29. Inmate Wragg, Reg. No. 67165-019, is a 38-year old inmate with a history of hypertension, hyperlipidemia, seizure disorder and schizoaffective disorder. His medical conditions
15

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are well-controlled with medication; however, his medical conditions do put him in the high risk group if he were to contract COVID-19.
30. Inmate Scronic, Reg. No. 79605-054, is a 49-year old inmate with a history of hypertension, depression, and basal cell carcinoma for which he was treated with radiation and chemotherapy. Based on his history of skin cancer, he is at a higher risk if he contracts COVID-19. Because inmate Scronic is a Camp inmate, he was tested using the Abbott testing machine and he is negative for the COVID-19 virus.
31. Inmate Bogdan, Reg. No. 07918-088, is a 68-year old inmate with a history of high BMI, hypertension, hyperlipidemia, chronic GERD, back pain, and chronic exertion shortness of breath. His medical conditions are well-controlled with medication; however, his medical conditions do put him in the high risk group if he were to contract COVID-19.
32. Inmate Soto-Concepcion, Reg. No. 72850-067, is a 38year old inmate with a history of Myocardial Infraction (twice), hypertension, and hyperlipidemia. His conditions are stable; however, his conditions do put him in the high risk group were he to contract COVID-19. Because inmate Soto-Concepcion is a Camp inmate, he was tested using the Abbott testing machine and he is negative for the COVID-19 virus. V. CONCLUSION
16

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33. In sum, the Bureau and FCI Fort Dix has 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 Bureau’s Action Plan have been designed and implemented in a
systemic manner both nationally and at FCI Fort Dix in order to
mitigate the spread of COVID-19. In addition to the steps taken
at the national level, FCI Fort Dix itself has taken a number of
measures to increase social distancing in a prison environment
and to prevent the spread of COVID-19 in the Camp and Low
institution.
I declare that any and all records attached to this declaration are true and accurate copies maintained in the ordinary course of business by the Federal Bureau of Prisons. I further declare that the foregoing is true and correct to the best of my knowledge and belief, and is given under penalty of perjury pursuant to 28 U.S.C. § 1746.

________________________________ Nicoletta A. Turner Foster, M.D. Clinical Director FCI Fort Dix

_0_5_/1_8_/2_0_2_0_______ Date

17

Case 1:20-cv-05496-RMB Document 28-7 Filed 05/18/20 Page 1 of 1 PageID: 1253

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, et al.,

Hon. Renée Marie Bumb, U.S.D.J.

Petitioners,

Civil Action No. 20-cv-5496

v.

DAVID E. ORTIZ, et al., Respondents.

[PROPOSED] ORDER

This matter having come before the Court on the Petitioners’ Motion for

Preliminary Injunction (ECF No. 9) seeking immediate relief for Petitioners and

their proposed class; and the Respondents’ Motion to Dismiss seeking to dismiss

this action in its entirety (ECF No. 28), and the parties having fully briefed the

issues in the two said motions, and the Court having heard argument on the two

said motions;

IT IS on this day of

, 2020;

ORDERED that the motion to dismiss of the Respondents is GRANTED; and

it is further

ORDERED that the Eighth Amendment claims in this action brought under

28 U.S.C. § 2241 are DISMISSED for lack of subject matter jurisdiction; and it is

further

ORDERED that the claims in this action brought under the Rehabilitation

Act are DISMISSED for failure to state a claim; and it is further

ORDERED that the motion for preliminary injunction of the Petitioners is

DENIED.

At Camden, New Jersey

________________________________ RENÉE MARIE BUMB, U.S.D.J.

Case 1:20-cv-05496-RMB Document 28-8 Filed 05/18/20 Page 1 of 1 PageID: 1254 U.S. Department of Justice

United States Attorney
District of New Jersey Civil Division

_____________________________________________________________________________________________________________________

CRAIG CARPENITO UNITED STATES ATTORNEY
J. Andrew Ruymann Assistant United States Attorney Chief, Civil Division

402 East State Street, Room 430 Trenton, NJ 08608 john.ruymann@usdoj.gov

main: (609) 989-2190 direct: (609) 989-0563 fax: (609) 989-2360

Via ECF

May 18, 2020

Hon. Renée M. Bumb, U.S.D.J.

United States District Court

Mitchell H. Cohen Building & U.S. Courthouse

4th & Cooper Streets Room 1050

Camden, NJ 08101

Re: Wragg, et al. v. Ortiz, et al., Civil Action No. 20-cv-5496 Respondents’ Brief

Dear Judge Bumb:

In accordance with the Court’s May 12, 2020 order, enclosed is Respondents’ consolidated moving brief and brief in opposition to Petitioners’ motion for a preliminary injunction. It is our understanding that the length of each of these briefs is ordinarily limited to 30 pages under Local Rule Civil Rule 7.2 when using proportional 12-point font. However, as discussed with the Court during the May 12 conference, Respondents are making a consolidated submission. To the extent the Court considers this consolidated brief to be a single moving brief under Local Civil Rule 7.2 or a brief in support of a cross-motion under Local Civil Rule 7.1(h), Respondents respectfully submit that the complexity and significance of this matter support the filing of an over-length brief, and we and respectfully seek leave to file same. Thank you very much for your continued attention to this case.

Respectfully submitted,

CRAIG CARPENITO United States Attorney

/s/ J. Andrew Ruymann J. ANDREW RUYMANN Chief, Civil Division Assistant U.S. Attorney

Case 1:20-cv-05496-RMB Document 28-9 Filed 05/18/20 Page 1 of 1 PageID: 1255

CRAIG CARPENITO United States Attorney J. ANDREW RUYMANN MARK E. COYNE ELIZABETH A. PASCAL JOHN F. BASIAK JR. JOHN T. STINSON Assistant U.S. Attorneys 402 East State Street, Room 430 Trenton, NJ 08608 Attorneys for Respondents

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, et al., Petitioners,
v. DAVID E. ORTIZ, et al.,
Respondents.

Hon. Renée Marie Bumb, U.S.D.J. Civil Action No. 20-cv-5496
CERTIFICATE OF SERVICE

I, JOHN F. BASIAK JR., hereby certify that on May 18, 2020, the following documents were filed and served on Petitioners’ counsel via the Court’s ECF system: Respondents’ Notice of Motion; Respondents’ Brief in Support of a Motion to Dismiss and in Opposition to Petitioners’ Motion for a Preliminary Injunction; Declaration of Christina Clark (with exhibits); Declaration of Mark E. Coyne (with exhibits); Declaration of James Reiser (with exhibits); Declaration of Adam Sassaman (with exhibits); Declaration of Dr. Nicoletta Turner-Foster; proposed order; and a letter regarding the length of Respondents’ brief.

By: /s/ John F. Basiak Jr.
JOHN F. BASIAK JR. Assistant U.S. Attorney Attorney for Respondents

 
 Case 1:20-cv-05496-RMB Document 49 Filed 06/02/20 Page 1 of 5 PageID: 1726

P.O. Box 32159 Newark, NJ 07102
Tel: 973-642-2086 Fax: 973-642-6523
info@aclu-nj.org www.aclu-nj.org

TESS BORDEN, ESQ. Staff Attorney
tborden@aclu-nj.org 973-854-1733

June 2, 2020
VIA ECF
The Honorable Renee Marie Bumb United States District Judge Mitchell H. Cohen Building & U.S. Courthouse 4th & Cooper Streets, Room 1050 Camden, New Jersey 08101
Re: Wragg, et al. v. Ortiz, et al. Civil Action No. 20-cv-5496-RMB
Dear Judge Bumb,
On behalf of Petitioners in the above-referenced action (the “Litigation”), we write in response to the Court’s amended supplemental text order (ECF No. 47) directing the parties to address footnote 26 of the Court’s May 27, 2020 opinion (the “May 27 Opinion,” ECF No. 40). Petitioners respectfully ask that the Court reconsider its decision dismissing Petitioners’ complaint and amend its order to require limited, expedited discovery. See Fed. R. Civ. P. 60(b)(6) (stating that a motion for reconsideration may be granted for “any . . . reason that justifies relief”); see also L. Civ. R. 7.1(i). “A motion to reconsider is proper when it seeks to correct an error of law or to prevent manifest injustice.” Koert v. GE Grp. Life Ins. Co., 416 F.Supp.2d 319, 321 (E.D. Pa. 2005).
Respondents mischaracterize the Court’s text order as asking whether the May 27 Opinion “requires modification,” ECF No. 48 at 1, but that question does not appear in the Court’s order. See ECF No. 47. Rather, the Court directed the parties to “address footnote 26 in this Court’s Opinion.” Footnote 26, in turn, invited Petitioners “to supplement the record” regarding “incidents of failure to address medical needs,” in which case the Court said it would “reconsider its Opinion and engage in fact-finding provided Petitioners can show that a favorable finding in this regard would alter the Court’s conclusion.” May 27 Opinion at 59 n.26.
In order to “supplement the record,” as footnote 26 contemplates, Petitioners should be allowed to serve limited discovery requests on Respondents. Discovery is essential because many of the facts relevant to the Court’s analysis are within Respondents’ exclusive control and because counsel for Petitioners’ communications with Petitioners, declarants, and putative class members has been restricted since the Litigation began, inhibiting Petitioners’ ability to develop a record

Case 1:20-cv-05496-RMB Document 49 Filed 06/02/20 Page 2 of 5 PageID: 1727
outside of formal discovery.1 Notably, other courts considering similar habeas petitions in the context of COVID-19 have permitted such discovery. See, e.g., Brown, et al. v. Marler, No. 20cv-1914, ECF No. 21 (E.D. Pa. Apr. 24, 2020) (granting petitioners’ request for jurisdictional discovery and directing parties to submit a joint proposed discovery plan, and noting concerns about access to counsel); Chunn, et al. v. Edge, No. 20-cv-1590, ECF No. 45 (E.D.N.Y. Apr. 15, 2020) (ordering government to produce limited discovery). As one District Court explained in ordering the production of sick-call requests:
[S]ick-call requests by other inmates are relevant to petitioners’ Eighth Amendment claims. As noted above, while respondent has sought to rebut petitioners’ arguments by pointing to the limited number of positive tests thus far, very few inmates have been tested. Evidence of the number of inmates submitting sick-call requests based on symptoms consistent with COVID-19 is relevant to assessing the likely prevalence of COVID-19 within a facility where few tests have occurred. In addition, were the evidence to establish that the [prison] has received many sickcall requests reporting COVID-19 symptoms, but that it has performed very few tests in response, that evidence would be relevant to petitioners’ argument that the [prison’s] medical staff is not prepared to provide appropriate care to them (including diagnostic care) if they contract COVID-19.
Chunn, No. 20-cv-1590, ECF No. 45, at 4. The same logic should permit Petitioners here to take discovery in light of footnote 26 of the May 27 Opinion.
Additionally, discovery has the potential to “alter the Court’s conclusion.” See May 27 Opinion at 59 n.26. Footnote 26 acknowledges that Petitioners have alleged “failure to address medical needs” and that these allegations, if resolved in Petitioners’ favor—which they should be, given the procedural posture, see Phillips v. Cty. Of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)— could constitute deliberate indifference. See May 27 Opinion at 59 n.26. Moreover, to the extent this Court found the question of whether it has habeas jurisdiction to be tied to the severity of conditions at Fort Dix, see May 27 Opinion at 54,2 Petitioners should be allowed to develop
1 Petitioners’ counsel have been restricted in their ability to communicate with their clients and with potential declarants. As brought to the attention of counsel for Respondents, privileged legal calls have been difficult to set up and, even when arranged, are limited in time and frequency. Instead, counsel has had to rely primarily on monitored email and telephone communications, which prisoners may only access during certain hours and—as to telephone calls—have a limited number of minutes per call and call minutes per month.
2 Petitioners respectfully reserve their rights, in any potential appeal, to challenge the Court’s jurisdictional analysis (as well as any other aspect of the May 27 Opinion), including whether Petitioners’ challenge is to the fact—rather than the conditions—of their confinement. See Wilson v. Williams, No. 20-3447, ECF No. 23-1 (6th Cir. May 4, 2020). Petitioners note that, the day before the Court’s May 27 Opinion, the Supreme Court denied the Solicitor General’s application to stay the injunction entered by the Northern District of Ohio in Wilson. See Williams v. Wilson, 19A1041, 590 U.S. — (May 26, 2020). The Solicitor General in Wilson (like Respondents here) explicitly questioned jurisdiction under § 2241 in light of “this Court’s precedents recognizing that
2

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through discovery their allegations that circumstances at Fort Dix present the “extraordinary case” in which this Court said habeas jurisdiction could be warranted. See Pet. ¶¶ 120–33; see also Memorandum of Law in Support of Petitioners’ Motion for a Preliminary Injunction, ECF No. 9, at 6–7.
Petitioners therefore seek to serve discovery requests relevant to their allegations that Respondents are failing to address prisoners’ medical needs, including:
• Prisoner Testing Practices and Results. Respondents concede that they have not been testing prisoners at the Low security facility systematically, and indeed represented that only one test has been performed of a prisoner there. See Declaration of Nicoletta TurnerFoster, ECF No. 28-6, at ¶ 23 (“Turner-Foster Decl. I”). However, Respondents have failed to answer Petitioners’ allegation that at least 25 prisoners at the Low were tested on May 5 or 6. See Mem. Supp. Opp. Mot. to Dismiss, ECF No. 30, at 12. Instead, without disclosing the results of those tests, Respondents merely stated that, hypothetically, “[i]f any inmate exhibited symptoms of COVID-19 based on interaction with this staff member, they would have been identified during temperature checks/symptoms assessments and tested for the virus.” See Declaration of Nicoletta Turner-Foster, ECF No. 33-1, at ¶ 24. (“Turner-Foster Decl. II”) (emphasis added). Respondents further state that they would like to begin testing asymptomatic prisoners at the Low but—as of May 21, 2020—were still seeking approval from “the Regional Health Services Administrator, Regional Medical Director, and Regional Infections Disease Nurse.” See id. at ¶ 18. Petitioners seek limited discovery as to the practices, results, and plans for testing at the Low, as well as any follow up plans for testing at the Camp since the last set of tests on May 6, 2020 and following the return of “recovered” prisoners from Unit 5851.
• Prisoner Screening Protocols and Results. Respondents have indicated that Fort Dix’s policy as to prisoner screening for COVID-19 consists of temperature checks for fever and an evaluation by Health Services “if an inmate were to exhibit symptoms of the virus or report symptoms of the virus. . . If COVID-19 is suspected, he would be tested immediately using the Abbott machine.” Turner-Foster Decl. I at ¶ 23. However, Respondents have provided no information related to sick-call requests by prisoners that would reveal how many prisoners have reported symptoms and have been evaluated by Health Services for symptoms, or why certain symptoms associated with COVID-19 might nevertheless not
challenges to the conditions of a prisoner’s confinement fall outside the core of federal habeas corpus.” Stay Application at 5 (quotations omitted) (attached as Exhibit A). And, like Respondents here, the Solicitor General cited cases, including Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012), arguing that the prisoners’ § 2241 petitions were simply misstated conditions-ofconfinement claims. Six Justices of the Supreme Court nevertheless voted to deny a stay, the standard for which is whether there is “a fair prospect that a majority of the Court will vote to reverse the judgment below” and “likelihood that irreparable harm will result from the denial of a stay.” See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). The order denying a stay is attached hereto as Exhibit B. The government has filed a second application with the Supreme Court to stay the Northern District of Ohio injunction and enforcement order.
3

Case 1:20-cv-05496-RMB Document 49 Filed 06/02/20 Page 4 of 5 PageID: 1729
result in a COVID-19 test. Moreover, the policy Respondents describe resulted in 58 positive tests at the Camp. Respondents have provided no information to suggest the policy would produce a different result at the Low. Accordingly, Petitioners seek limited discovery on prisoner screening protocols and results, including sick-call requests.
• Staff Screening Protocols and Results. Respondents have indicated that “Health Services Division - Central Office is exploring options to offer testing for staff; however, there is currently no options for staff testing offered by BOP. Currently, the BOP’s Phase 7 Action Plan mentions community testing sites being the option for staff testing. . . . Staff are required to self-report illness, including possible exposure to COVID-19[.]” Turner-Foster Decl. II at ¶ 22. Respondents further indicated that for those staff members who are known to test positive, Fort Dix’s protocol is to only test prisoners who came into contact with staff with confirmed cases if those prisoners subsequently exhibited COVID-19 symptoms “during temperature checks/symptoms assessments.” Id. at ¶ 24. In so doing, Respondents have effectively denied any efforts or plans by Fort Dix to contact trace based on confirmed staff positive cases and have failed to indicate how this protocol is medically sound. Petitioners thus seek limited discovery as to staff screening protocols and the results thereof as they impact the prisoner population.
• Site Inspection. To address this Court’s questions and outstanding fact disputes, Petitioners request that the Court appoint an expert to inspect the conditions at Fort Dix in person and report back to the parties and the Court. Petitioners submit that such an inspection is particularly critical to assess to the effectiveness of Phase 7 of the BOP Action Plan. For example, upon information and belief, during the week of May 25, Warden Ortiz required over 200 prisoners at the Low to return to work at Unicor,3 presumably in cohorts not limited to their housing units. Among other things, a site inspection would assess whether these and other actions by Respondents put prisoners at significant public health and medical risk. At the parties’ May 8 conference, Judge Schneider raised the possibility of an independent expert inspection. Other courts have ordered such an inspection. See Chunn, No. 20-cv-1590, ECF No. 45 at 3 (granting petitioners’ request to have an expert and two attorneys inspect conditions at the Metropolitan Detention Center in Brooklyn, New York and prepare a report). Such an inspection report would assist this Court in deciding whether the situation at Fort Dix constitutes an “extraordinary case” such that this Court should exercise its habeas jurisdiction.
Petitioners thus ask that they be permitted to serve limited discovery requests on Respondents. A proposed order is attached for the Court’s consideration as Exhibit C.
3 Unicor operations at Fort Dix appear to consist of clothing and textile products and printing, data entry, contact center, and other services. https://www.bop.gov/inmates/custody_and_care/ unicor_about.jsp
4

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Should the Court deny Petitioners’ request for limited discovery, Petitioners ask that they be permitted to supplement the record with additional declarations, to the extent they are able to do so given the limitations on counsel’s access to unmonitored communications with prisoners.
We appreciate the Court’s attention to this matter and are available to discuss these issues at the Court’s convenience.
Respectfully submitted,

Faith E. Gay* Caitlin J. Halligan* Joshua S. Margolin* Oscar Shine* Kevin C. Hu* Shomik Ghosh*
SELENDY & GAY PLLC 1290 Avenue of the Americas 17th Floor New York, NY 10104 212-390-9000
fgay@selendygay.com challigan@selendygay.com jmargolin@selendygay.com oshine@selendygay.com khu@selendygay.com sghosh@selendygay.com

By: /s/ Tess Borden
Tess Borden (260892018) Jeanne LoCicero AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION 570 Broad Street, 11th floor P.O. Box 32159 Newark, NJ 07102 973-854-1733 tborden@aclu-nj.org
Jim Davy* 2362 E. Harold Street Philadelphia, PA 19125 609-273-5008 jimdavy@gmail.com
Matthew Stiegler* Law Office of Matthew Stiegler 7145 Germantown Avenue, Suite 2 Philadelphia, PA 19119 215-242-1450 Matthew@StieglerLaw.com
Counsel for Petitioners
* Admitted pro hac vice

5

Case 1:20-cv-05496-RMB Document 49-1 Filed 06/02/20 Page 1 of 41 PageID: 1731
No. 19A-_______ ________________________________________________________________ ________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES _______________
MARK WILLIAMS, WARDEN OF ELKTON FEDERAL CORRECTIONAL INSTITUTION, AND MICHAEL CARVAJAL, DIRECTOR OF THE FEDERAL
BUREAU OF PRISONS, APPLICANTS v.
CRAIG WILSON, ET AL. _______________
APPLICATION FOR A STAY OF THE INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO AND FOR AN ADMINISTRATIVE STAY _______________
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
________________________________________________________________ ________________________________________________________________

Case 1:20-cv-05496-RMB Document 49-1 Filed 06/02/20 Page 2 of 41 PageID: 1732
PARTIES TO THE PROCEEDING Applicants (respondents-appellants below) are Mark Williams, in his official capacity as Warden of Elkton Federal Correctional Institution; and Michael Carvajal, in his official capacity as the Federal Bureau of Prisons Director. Respondents (petitioners-appellees below) are Craig Wilson, Eric Bellamy, Kendal Nelson, and Maximino Nieves, on behalf of themselves and all others similarly situated.

Case 1:20-cv-05496-RMB Document 49-1 Filed 06/02/20 Page 3 of 41 PageID: 1733
IN THE SUPREME COURT OF THE UNITED STATES _______________
No. 19A-_______ MARK WILLIAMS, WARDEN OF ELKTON FEDERAL CORRECTIONAL INSTITUTION, AND MICHAEL CARVAJAL, DIRECTOR OF THE FEDERAL
BUREAU OF PRISONS, APPLICANTS v.
CRAIG WILSON, ET AL. _______________
APPLICATION FOR A STAY OF THE INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO AND FOR AN ADMINISTRATIVE STAY _______________
Pursuant to Rule 23 of the Rules of this Court and the All Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of the federal applicants, respectfully applies for a stay of the preliminary injunction issued on April 22, 2020, by the United States District Court for the Northern District of Ohio (App., infra, 8a28a), pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court. Applicants also respectfully request an administrative stay pending disposition of this application.
The COVID-19 pandemic has created extraordinary public health risks in this country and around the world. The Federal Bureau of Prisons (BOP) is working assiduously to mitigate those risks within its facilities by implementing a multi-phase plan it developed in January 2020. Prison officials at Elkton Correctional Institution

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2 (FCI-Elkton) have implemented the BOP’s system-wide plan. They have minimized social interactions; distributed necessary cleaning supplies, masks, and protective equipment; and established quarantine, testing, and treatment protocols. Furthermore, when Elkton experienced a number of confirmed cases of COVID-19, prison officials worked to both limit transmission of the virus and ensure that those affected receive adequate medical treatment.
Respondents are four individuals who represent a conditionally certified subclass of older and medically vulnerable Elkton inmates. Respondents brought a purported habeas corpus challenge under 28 U.S.C. 2241, seeking a preliminary injunction that would secure their removal from Elkton based on allegations that COVID19 has created “unconstitutional conditions of confinement” at the facility. App., infra, 87a (capitalization and emphasis omitted).
Despite acknowledging BOP’s “good efforts” to “limit the virus’s spread” at Elkton, App., infra, 12a, the court determined that respondents were likely to succeed on their Eighth Amendment claim because the court viewed BOP’s “testing” and “social distancing” efforts to be inadequate, id. at 9a, 23a. It therefore granted a preliminary injunction requiring BOP to identify subclass members within one day; evaluate all members’ eligibility for “transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two (2) weeks,” and then use those means, or transfers to other BOP facilities, to remove all subclass members from Elkton “until the threat of the virus is abated or until a vaccine is available.” Id. at 27a-28a.

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3 The government unsuccessfully sought a stay of the injunction from the district court and the Sixth Circuit. App., infra, 1a5a, 29a. Meanwhile, BOP complied with the first two requirements of the injunction, identifying 837 subclass members and evaluating them for different means of transfer out of Elkton. Id. at 142a. Respondents, however, moved to enforce the injunction the same day BOP reported the results of its evaluation. Id. at 42a. The district court granted that motion on May 19, 2020. App., infra, 42a-52a. It determined that BOP had not found enough subclass members eligible for transfer out of Elkton through “home confinement” and “compassionate release.” Id. at 47a. It therefore imposed revisions to BOP’s home confinement criteria -requiring, for example, that BOP “disregard” some inmates’ violent offenses -- and ordered BOP to reevaluate all class members under the revised criteria. Id. at 48a. If BOP finds any class member ineligible under the court’s standards, it must provide a detailed, individualized explanation. Ibid. BOP must complete this entire process for the first third of the class (approximately 300 people) by May 21, 2020; the next third 48 hours later; and the final third 48 hours thereafter. Id. at 48a-49a. Also within 48 hours of the order, BOP must provide individualized explanations for every instance in which it has denied a class members’ compassionate release petition, id. at 50a, and identify and add new inmates to the class, id. at 51a. Within a week, it must “show cause” why any remaining class members are deemed ineligible for transfer to other facilities. Ibid.

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4 This Court’s intervention is urgently needed. The district court’s injunction is deeply flawed and should be stayed pending appeal and, if necessary, further proceedings in this Court. The flaws are deepened and the need for relief made especially urgent by the district court’s extraordinary May 19 order enforcing the injunction. All the relevant factors support a stay. First, if the Sixth Circuit were to uphold the injunction, there is at least a reasonable probability that this Court would grant certiorari. A judicial order peremptorily requiring the removal of over 800 inmates from a federal prison based on an alleged Eighth Amendment violation -- in the midst of a pandemic -- presents extraordinarily significant questions and should not be imposed without this Court’s review. Both the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, § 101[(a)], Tit. VIII, 110 Stat. 1321-66, and the contours of the Eighth Amendment itself dictate that such relief could be available only in the very rarest of circumstances. The importance of review is further underscored by the recommendation of the Centers for Disease Control and Prevention (CDC) that correctional institutions suspend transfers to the maximum extent possible to avoid the risk of spreading COVID-19. See CDC, Dep’t of Health and Human Servs., Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities 14 (Mar. 27, 2020)(CDC Interim Guidance), https://www.cdc.gov/coronavirus/2019-ncov/ downloads/guidance-correctional-detention.pdf (App., infra, 214a). And certiorari is also likely because the rulings below implicate an established conflict regarding the availability of

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5 habeas corpus to challenge prison conditions, and a burgeoning disagreement regarding Eighth Amendment claims in the face of a pandemic.
Second, there is more than a fair prospect that the Court would vacate the injunction. Respondents’ sole claim for relief is an assertion of “unconstitutional conditions of confinement,” App., infra, 87a (capitalization and emphasis omitted). Yet the district court recharacterized the suit as a challenge to the “fact or duration” of respondents’ confinement. Id. at 17a-18a, 26a. That led the court to permit the suit to proceed under 28 U.S.C. 2241, despite this Court’s precedents recognizing that challenges to the “conditions of a prisoner’s confinement * * * fall outside” the “core” of federal habeas corpus. Nelson v. Campbell, 541 U.S. 637, 643 (2004). It also led the court to eschew the strict limitations on injunctive relief in general -- and on “prisoner release orders” in particular -- established by the PLRA.
The district court’s Eighth Amendment analysis is also contrary to this Court’s precedents, which have admonished against invoking that Amendment to engage in judicial second guessing of prison officials’ response to difficult and evolving situations. Farmer v. Brennan, 511 U.S. 825, 834, 836-837 (1994). Respondents have fallen far short of establishing both that they have been deprived of “the minimal civilized measure of life’s necessities,” and that any such deprivation results from prison officials’ “deliberate indifference,” as the Eighth Amendment requires. Id. at 834 (citations omitted). This extraordinary pandemic poses risks to those inmates, but it also poses risks to the population as a

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6 whole, and BOP has worked diligently to mitigate the risks at Elkton.
Third, the balance of equities strongly favors a stay. If allowed to stand, the district court’s injunction -- now augmented by the court’s sweeping May 19 order -- would undermine BOP’s systemic response to the COVID-19 pandemic; intrude the Judicial Branch on policy decisions that have been assigned to expert prison administrators; and require BOP to defy the CDC’s guidance to restrict prisoner movements during the pandemic to avoid unnecessary risk of spreading the virus. While the court found its injunction appropriate based on the presence of COVID-19 at Elkton, its concerns regarding testing and social distancing cannot justify its dramatic imposition on a correctional institution.
Because all three of the stay factors are readily met, this Court should stay the injunction. In addition, because the injunction and May 19 order enforcing it require BOP immediately to evaluate under judicial supervision hundreds of Elkton inmates for home confinement under revised criteria the district court fashioned without authority or expertise and then to remove over 800 inmates from Elkton, the government respectfully requests that this Court enter an administrative stay.
STATEMENT 1. In January 2020, the first cases of illness caused by COVID-19 were reported in the United States. App., infra, 93a ¶ 6. Recognizing the threat, BOP quickly developed and began implementing a multiphase action plan, which has consistently been

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7 informed by changing circumstances and “the guidance and direction of worldwide health authorities.” Ibid.
In its first phase, BOP gathered its existing pandemic resources and new information regarding the specific nature of COVID-19 and “best practices to mitigate its transmission.” App., infra, 93a ¶ 7. BOP also formed a task force to conduct Bureauwide “strategic planning” in coordination with “subject-matter experts,” and it began “implementing guidance and directives” from the CDC and other expert bodies. Ibid.
BOP implemented the second phase of its action plan on March 13, 2020, instituting restrictions at all BOP facilities. App., infra, 94a ¶ 8. Consistent with CDC guidance regarding the need to severely restrict inmate movements between facilities and within communities, CDC Interim Guidance 14 (App., infra, 214a), BOP suspended facility transfers. App., infra, 94a ¶ 8. It also suspended visits and contractor access. Ibid. And BOP instituted enhanced health screening for inmates and staff, as well as quarantine procedures for certain newly arriving inmates, again consistent with CDC guidance. Id. ¶¶ 9-10.
From March 18 to April 13, 2020, BOP implemented several further phases of its action plan, requiring (among other things) that all newly admitted inmates -- even those who are asymptomatic -- be quarantined for 14 days and that inmates displaying symptoms of COVID-19 be placed in isolation until testing negative or meeting CDC criteria. App., infra, 96a ¶ 15. BOP also restricted inmate gatherings and secured all inmates in their assigned living quarters to decrease virus transmission. Id. at 96a-97a ¶¶ 16-

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8 17; see also id. at 125a-127a ¶ 38. In addition, all BOP staff and inmates have been given appropriate sanitation materials, face coverings, and other personal protective equipment where necessary. Id. at 125a-127a ¶ 38; see p. 8, infra.
2. FCI-Elkton is a low-security facility in Ohio, in which approximately 2500 inmates are incarcerated in dormitory style housing. App., infra, 106a ¶ 3; id. at 104a ¶ 54 (150-man units), 112a-113a ¶ 22 (units have 250-300 inmates, separated in half).
a. Like all BOP institutions, Elkton has implemented BOP’s nationwide COVID-19 response, and taken numerous precautions in accordance with the facility’s particular needs. App., infra, 97a-98a ¶ 19. For example, Elkton staff and officials have, since the beginning of the pandemic, educated inmates and staff about measures to avoid transmitting COVID-19. Id. at 98a ¶¶ 20-22. All common areas are cleaned at least daily with a disinfectant that kills human coronavirus. Id. at 103a ¶ 46. The disinfectant is also available to all inmates so that they can clean their personal areas, and they have access to sinks, water, and soap at all times. Id. at 102a-103a ¶¶ 45-46.
Elkton inmates and staff have been provided protective face masks for daily use and appropriate protective equipment as necessary for particular tasks. App., infra, 103a ¶¶ 48-50. BOP has also taken steps to reduce inmate contact. For example, inmates are required to pick up meals and return to their housing units to eat, and mealtimes are staggered so that only a single housing unit moves within the facility at any time. Id. at 95a ¶

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9 12; see id. at 104a ¶ 54. Inmates may also receive medications and visit the commissary during these periods. Id. at 95a ¶ 12.
Elkton staff carefully monitor the health of the inmate population. Early on, staff reviewed medical records to identify inmates who are considered high-risk under CDC guidelines. App., infra, 99a-100a ¶¶ 30-31. Any inmate who reports symptoms consistent with COVID-19 is evaluated by BOP medical providers and, if symptoms are confirmed, moved to an isolation area. Id. at 99a-100a, 103a-104a ¶¶ 29, 34, 51. When testing was limited, medical providers decided whether to test an inmate for COVID-19 based on a number of criteria, including symptoms, potential exposure and whether the inmate was high-risk or on a work detail requiring interaction with other inmates or staff. Id. at 102a ¶ 41; see also id. at 101a-102a ¶ 39 (describing CDC’s “priority levels” for COVID-19 testing).
b. Despite BOP’s extensive efforts, Elkton has unfortunately experienced significant levels of infection, and, as of May 8, 2020, nine inmates have died from the virus. App., infra, 176a ¶ 47. From the outset, Elkton staff have responded with urgency to the presence of COVID-19, engaging in extensive efforts to limit transmission of the virus and to ensure proper care for those infected. Id. at 184a-186a ¶ 83-86.
Staff have continued to screen all inmates who report symptoms and to isolate them as appropriate. App., infra, 101a-104a ¶¶ 3941, 51-52. Asymptomatic inmates who have been in contact with symptomatic inmates during the incubation period (up to 14 days) are quarantined in a housing unit for at least 14 days. Id. at

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10 104a ¶ 52. After 14 days, inmates may be released from quarantine if no one in the cohort has developed confirmed or suspected COVID19. Ibid. But if a quarantined inmate presents with symptoms, he is isolated, and the 14-day clock restarts. Ibid.
In order to ensure adequate medical treatment, Elkton staff have been working 12-hour shifts to provide inmates with 24-hour access to on-site medical services. App., infra, 184a-185a ¶ 83. If an inmate’s condition requires hospitalization, he is transported to a local hospital. Id. at 103a-104a ¶ 51. Returning inmates are placed in Elkton’s infirmary, where they remain until they have been fever-free for 72 hours and ten days have passed since their symptoms appeared. Id. at 178a ¶¶ 53-54.
BOP has evaluated Elkton inmates for alternate placement in home confinement, in keeping with statutory authorization and guidance from the Attorney General. App., infra, 111a-112a ¶¶ 1719; 122a-123a ¶¶ 25-26. In general, BOP is authorized to place a prisoner in “home confinement” for no more than the final “[six] months” of his sentence. 18 U.S.C. 3624(c)(2). But, under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281, Congress permitted BOP to extend the amount of time an individual may be placed in home confinement, if the Attorney General “finds that emergency conditions” justify that extension, and “as the Director [of BOP] determines appropriate.” Div. B, Tit. II, § 12003(b)(2), 134 Stat. 516.

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11 The Attorney General has made the requisite findings. App., infra, 111a-112a ¶¶ 18-19. He has also directed BOP to prioritize the consideration of inmates at Elkton and two other facilities, and provided criteria for determining an inmate’s eligibility, including that “primary or prior violent offenses” and “sex offenses” are generally disqualifying. Ibid. BOP officials have implemented that guidance at Elkton. Ibid.; see also id. at 120a121a ¶ 22 (elaborating on criteria used for evaluation). BOP has also considered numerous requests from Elkton inmates for “compassionate release,” a statutory procedure through which BOP may request an inmate’s sentencing court to reduce his term of imprisonment because “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. 3582(c)(1)(A). Congress has not, however, adjusted the compassionate release procedures in light of COVID-19, nor has it adjusted the necessary qualifications or procedures for other statutory mechanisms to alter inmate placements. For example, it has not made the COVID-19 pandemic an independent basis for furlough under 18 U.S.C. 3622, which authorizes BOP to temporarily release an inmate for specified purposes like “obtaining medical treatment not otherwise available,” “participating in training,” or “work.” 18 U.S.C. 3622(a)(3), (b), and (c). 3. On April 13, 2020, respondents filed a habeas corpus petition pursuant to 28 U.S.C. 2241 on behalf of themselves and a putative class of all current or future Elkton inmates, and a subclass of medically-vulnerable inmates. App., infra, 53a-90a.

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12 Their sole claim was that they are being subject to “unconstitutional conditions of confinement in violation of the Eighth Amendment.” Id. at 87a (capitalization and emphasis omitted). As relief, they sought -- among other things -- a preliminary injunction requiring BOP to remove all “[m]edically-[v]ulnerable” inmates from Elkton through means such as home confinement, transfer furlough to another facility, or non-transfer furlough to the community, id. at 54a n.2, 88a, and an order requiring BOP to institute a COVID-19 mitigation plan supervised by the court and “a qualified public health expert,” id. at 88a-89a.
On April 22, 2020, the district court entered a preliminary injunction granting relief to a conditionally certified subclass of older and medically vulnerable inmates. App., infra, 27a-28a. Invoking what the court viewed as its “inherent authority” over an inmate’s confinement, the court ordered BOP to “determine the appropriate means of transferring” all subclass members “out of Elkton.” Id. at 15a-16a.
The district court first determined that it had jurisdiction under 28 U.S.C. 2241, but only as to the subclass of medically vulnerable inmates. App., infra, 16a-18a. Although the putative class of all Elkton inmates and the medically vulnerable subclass were pursuing the same Eighth Amendment claim for “unconstitutional conditions of confinement,” id. at 87a (capitalization and emphasis omitted), the court held that the subclass could proceed in habeas and the class as a whole could not because the subclass was seeking “immediate release” from Elkton through home confinement and other mechanisms, while the class as a whole was merely

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13 seeking “an alteration to the confinement conditions.” Id. at 18a. The court also found that the subclass “likely meets” the requirements for class certification under Federal Rule of Civil Procedure 23, see App., infra, 22a.
The court then determined that respondents were likely to succeed on their Eighth Amendment claim because they identified a “very serious medical need to be protected from the virus” and because the court believed BOP had been deliberately indifferent to that need. Id. at 23a. While acknowledging that BOP had made “certain prison-practice changes” to protect inmates, the court nonetheless concluded that respondents had demonstrated deliberate indifference. Ibid. The court focused on what it viewed as “paltry * * * test[ing]” and the fact that inmates had not been “separat[ed] * * * at least six feet apart.” Id. at 10a, 23a.
Turning to the balance of harms, the district court held that respondents had demonstrated irreparable harm because “it is more than mere speculation that the virus will continue to spread and pose a danger to inmates.” App., infra, 24a. The court further concluded that the relief it intended to order -- the wide-scale transfer of hundreds of inmates out of Elkton -- would not impose undue harms and would be in the public interest. Id. at 24a-26a. And the court rejected BOP’s argument that the court’s ability to award that relief was constrained by the PLRA, which mandates that only a three-judge court may issue a release order in a suit challenging prison conditions. Id. at 26a-27a. In the court’s view, the PLRA did not apply because respondents were pursuing “habeas corpus proceedings challenging the fact or duration of

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14 confinement in prison,” which the statute exempts. Id. at 26a (citation omitted). And it further observed that its preliminary injunction would not qualify as a “release order” in any event because “the inmates will remain in BOP custody, but the conditions of their confinement will be enlarged.” Id. at 27a.
The court entered an order requiring that BOP “identify, within one (1) day all members of the subclass”; “evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or nontransfer furlough within two (2) weeks”; and then ensure that “[s]ubclass members who are ineligible for compassionate release, home release, or parole or community supervision” are “transferred to another BOP facility [after required quarantine] where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished.” App., infra, 27a-28a. Subclass members “may not be returned to the facility until the threat of the virus is abated or until a vaccine is available.” Id. at 28a.
4. The government filed a notice of appeal on April 27, 2020; moved the district court for a stay pending appeal the following day, D. Ct. Doc. 30; and filed a stay motion with the Sixth Circuit on April 29, 2020, C.A. Doc. 9-1.
On May 4, 2020, the Sixth Circuit denied the stay in a brief per curiam order. App., infra, 1a-5a. The court agreed with the district court that the invocation of Section 2241 was “proper” and that the PLRA did not apply. Id. at 3a. The court of appeals

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15 also determined that the district court had not “abused its discretion” in finding that respondents were likely to succeed on their Eighth Amendment claim. Id. at 3a-4a. Finally, the court rejected BOP’s argument that the subclass could not satisfy Rule 23, and dismissed BOP’s account of the inordinate burden of implementing the order. Id. at 4a-5a (citation omitted).
On May 8, 2020, the court of appeals granted the government’s motion to expedite briefing on the appeal, App., infra, 6a-7a, but rejected the government’s proposed schedule, which would have permitted a decision by May 22, 2020, C.A. Doc. 28. Instead, briefing will not conclude until June 1, 2020, and “the merits panel will determine whether it will expedite oral argument or a decision.” App., infra, 7a.
5. a. On May 8, 2020, the district court also denied the government’s stay motion. App., infra, 29a-33a. By that time, the government had already fulfilled the injunction’s first two requirements and, on May 6, had submitted a status report indicating that it had identified and evaluated all subclass members’ eligibility for the forms of relief specified in the preliminary injunction. Id. at 142a-147a. The same day, respondents filed an emergency motion to enforce the injunction, alleging that BOP’s efforts did not suffice. D. Ct. Doc. 51.
On May 8, 2020, BOP opposed the motion and submitted declarations confirming that it had evaluated all inmates in the subclass for the forms of relief specified by the court, detailing the criteria it had used, and explaining some of the reasons why the vast majority of inmates had been deemed ineligible. App., infra,

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16 153-157a. BOP explained, for example, that many subclass members are sex offenders, and that under established BOP criteria, reinforced by the Attorney General’s recent COVID-19 guidance, an inmate generally cannot qualify for home confinement if he has a “primary or prior sex offense.”. Id. at 153a-154a. In addition, BOP emphasized that it had evaluated every application for compassionate release that it had received from a class member, but that -- by statute -- only a sentencing judge can make a final determination of eligibility for that form of relief. Id. at 155a156a.
BOP further explained that it had begun evaluating inmates who were ineligible for other forms of relief for transfer to other BOP facilities, and it documented the numerous impediments it faced in implementing that transfer order. App., infra, 157a-161a. It explained that CDC guidance calls for detention facilities to “suspend all transfers unless absolutely necessary, if there is a suspected or confirmed case of COVID-19 at” a facility. Id. at 161a. It also noted that the facilities that met the court’s social distancing requirements were largely higher-security institutions, and that transferring Elkton inmates to them would raise “serious security concerns.” Id. at 159a-160a.
Finally, BOP reported that it had entered into a contract for mass COVID-19 testing of all Elkton inmates. App., infra, 150a. It further observed that, as of May 8, 2020, there had been a “substantial[]” decrease in hospitalizations and improvement in a number of other key metrics. Id. at 150a-152a.

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17 b. The district court did not rule on the motion to enforce until May 19, 2020. In the interim, it issued several orders requiring BOP to produce daily status reports on testing as well as additional information regarding its efforts to evaluate inmates for transfer. D. Ct. Doc. 76 (May 14, 2020). But the court acknowledged that some inmates who are members of the Rule 23(b)(2) subclass may not wish to be transferred from Elkton, particularly if they would be moved to a higher security prison or transferred further from their homes. D. Ct. Doc. 55, at 13-14, 26-27 (May 7, 2020). The court therefore directed respondents to survey all Elkton inmates, through a questionnaire distributed by BOP, to both ensure that all eligible class members have been identified and to determine which wished to “optout” and remain at Elkton. Ibid. Respondents provided copies of the responses to BOP at approximately 1:30 p.m. on May 19, 2020. BOP intended to process the results within two days, so that it could use the information to begin quarantining class members on Friday, May 22, 2020, as required to prepare them for transfer. c. At 3:30 p.m. on May 19, 2020, the district court granted respondents’ motion to enforce the injunction. App., infra, 42a52a. The court acknowledged that BOP had begun to implement mass testing at Elkton, id. at 43a, and that it had reported evaluating all subclass members for the various forms of relief dictated in the court’s order, id. at 45a. But the court noted that testing had yielded positive results for a number of inmates. Id. at 43a. And it found BOP’s evaluation efforts insufficient because only five members were “pending [home confinement] community

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18 placement,” and an additional six reportedly “might” qualify. Ibid.
In the district court’s view, more inmates should be eligible for home confinement and compassionate release. App., infra, 45a. Therefore, after surveying the existing guidance from the Attorney General and BOP, the court ordered five revisions to the criteria for home confinement. Id. at 47a-48a. For example, the court announced that BOP must “disregard” consideration of a violent offense if it occurred “more than 5 years ago” or if it is the “only basis [f]or denial,” and BOP must wholly disregard certain categories of prison disciplinary violations. Id. at 48a.
On this basis, the district court, to enforce its injunction, ordered BOP to reevaluate every subclass member under the revised criteria, and offer a detailed explanation for any denial. App., infra, 48a. BOP must complete this process for the first third of the subclass by May 21, 2020; the next third 48 hours later; and the final third 48 hours after that. Id. at 48a-49a. In addition, within 48 hours, BOP must “clarify” the reasons for any denial of compassionate release. Id. at 50a. And, even though the statute affords BOP 30 days to evaluate any application for such release, the court gave BOP just seven days to adjudicate any new applications. Id. at 50a. It also gave BOP seven days to “show cause” why any inmate ineligible for home confinement or compassionate release “cannot be transferred to another BOP facility where social distancing is possible.” Id. at 51a.

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19 ARGUMENT The government respectfully requests that this Court stay the district court’s preliminary injunction pending completion of further proceedings in the court of appeals and, if necessary, this Court. The government further requests that the Court grant an administrative stay pending its consideration of this application. A stay pending the disposition of a petition for a writ of certiorari is appropriate if there is (1) “a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari”; (2) “a fair prospect that a majority of the Court will conclude that the decision below was erroneous”; and (3) “a likelihood that irreparable harm will result from the denial of a stay.” Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers) (brackets, citation, and internal quotation marks omitted). All of the requirements are met here.
I. A REASONABLE PROBABILITY EXISTS THAT THIS COURT WOULD GRANT CERTIORARI IF THE COURT OF APPEALS WERE TO UPHOLD THE INJUNCTION If the court of appeals ultimately upholds the district
court’s injunction in this case, there is, at the very least, a reasonable probability that the Court will grant certiorari.
This Court has recognized that, even in normal times, an order requiring the release or transfer of “prisoners in large numbers * * * is a matter of undoubted, grave concern.” Brown v. Plata, 563 U.S. 493, 501 (2011). Such orders carry a high risk of jeopardizing public safety and inappropriately interjecting the Judicial Branch into difficult decisions regarding prison security

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20 and administration, despite the deference that is owed “to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” Id. at 511. That is all the more so when prison administrators must address the impact of a pandemic affecting the Nation at large, and must do so across the prison system.
A decision upholding this injunction would also implicate two conflicts in the courts of appeals. The circuits are divided as to whether a prisoner may pursue a challenge to his conditions of confinement under Section 2241. The Third, Seventh, Eighth, and Tenth Circuits have all held that suits challenging conditions of confinement are not cognizable in habeas. See, e.g., Spencer v. Haynes, 774 F.3d 467, 469-470 (8th Cir. 2014); Cardona v. Bledsoe, 681 F.3d 533, 535-537 (3d Cir.), cert. denied, 568 U.S. 1077 (2012); Palma-Salazar v. Davis, 677 F.3d 1031, 1035-1038 (10th Cir. 2012); Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005). By contrast, the D.C. and Second Circuits have permitted petitioners to bring conditions of confinement claims under Section 2241. Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014); Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008), cert. denied, 555 U.S. 1118 (2009).
As for the court of appeals below, although the Sixth Circuit has previously held that Section 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement,” Luedtke v. Berkebile, 704 F.3d 465, 466 (2013), it largely nullified that rule in its stay denial in this case by treating respondents’ suit -- which seeks removal from Elkton because of allegedly

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21 unconstitutional conditions -- as a cognizable habeas challenge to “the fact of the confinement,” App., infra, 3a.
In addition, there is burgeoning disagreement in the circuits regarding the appropriate standards for issuing an injunction against the administrators of a detention facility based on allegedly unconstitutional conditions created by COVID-19. The Sixth Circuit declined to stay such an injunction in this case, but several other circuits have reached a contrary conclusion.
For example, in Valentine v. Collier, 956 F.3d 797 (2020) (per curiam), mot. to vacate stay denied, No. 19A1034 (May 14, 2020), this Court recently declined to lift the Fifth Circuit’s stay of an injunction granting relief to a class of “disabled and high-risk” inmates in a state “prison for the elderly and infirm” that had experienced an outbreak of COVID-19 and several related deaths, id. at 799. The district court injunction in question did not order release or transfer, but instead imposed a series of requirements such as increased cleaning and the provision of additional sanitizers and paper products. Id. at 799-800. Nonetheless, the Fifth Circuit held that the “intrusive order[]” inflicted irreparable harm on both the State and the public by diverting resources from the prison system’s implementation of a systemic response to the pandemic. Id. at 803-804. And it found it apparent that the district court had erred in finding an Eighth Amendment violation. Although it recognized that “the district court might do things differently,” the Fifth Circuit made clear that such disagreement with the officials’ actions demonstrated no deliberate indifference to inmate welfare. Id. at 803; see also

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22
Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425, at *2-*3 (5th Cir. Apr. 27, 2020) (per curiam) (unpublished) (staying a COVID19 based preliminary injunction involving a “particularly vulnerable” inmate in a facility where “the virus has spread”).
The Eleventh Circuit similarly stayed a COVID-19 injunction obtained by prisoners purporting to represent “a ‘medically vulnerable’ subclass of inmates” at a jail where “several inmates * * * ha[d] tested positive for the virus” in Swain v. Junior, No. 20-11622, 2020 WL 2161317, at *1 (11th Cir. May 5, 2020) (per curiam). Like the Fifth Circuit, the Swain court determined that prison officials were likely to succeed on appeal because the district court’s focus on the facility’s “increase in COVID-19 infections” to show that officials “deliberately disregarded an intolerable risk” had misunderstood the Eighth Amendment inquiry and the requirements for a preliminary injunction. Id. at *4.1
If the Sixth Circuit affirmed the injunction in this case, it would place the court on the wrong side of both conflicts. It would also place the circuit in direct conflict with this Court’s decisions addressing what constitutes a habeas challenge to the “fact or duration” of confinement, congressionally established limits on prisoner litigation in the PLRA, and the constitutional
1 In a somewhat different context, the Ninth Circuit has largely stayed a preliminary injunction directing the release of immigration detainees and imposing numerous other requirements based on a parallel COVID-19 claim of deliberate indifference under the Due Process Clause. Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (May 5, 2020) (unpublished); see Roman v. Wolf, No. 20cv-768, 2020 WL 1952656, *10-*12 (C.D. Cal. Apr. 23, 2020).

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23 standards for claims under the Eighth Amendment, as we demonstrate below. In these circumstances, there is more than a “reasonable probability” that the Court will grant certiorari. Conkright, 556 U.S. at 1402 (citation omitted).
II. THERE IS AT LEAST A FAIR PROSPECT THAT THE COURT WOULD VACATE THE INJUNCTION IN WHOLE OR IN PART This Court is also likely to vacate the injunction because it
cannot be squared with this Court’s precedents regarding habeas corpus, the PLRA, and the Eighth Amendment.
A. As a threshold matter, the district court’s order mischaracterized this suit as a habeas challenge to “the fact or duration of confinement,” App., infra, 26a, rather than a challenge to prison conditions. This Court has repeatedly drawn a line between “two broad categories of prisoner petitions: (1) those challenging the fact or duration of confinement itself; and (2) those challenging the conditions of confinement.” McCarthy v. Bronson, 500 U.S. 136, 140 (1991). Challenges to the fact or duration of confinement are those in which the prisoners’ success would “necessarily imply the invalidity of their convictions or sentences.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (brackets and citation). By contrast, challenges to the conditions of confinement are those in which petitioners “allege[] unconstitutional treatment of them while in confinement.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973).
1. The categorization of a prisoner’s challenge has two important consequences. First, it determines whether the prisoner’s avenue for relief is through a petition for habeas corpus or

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24 a civil rights action. “[W]here an inmate seeks injunctive relief challenging the fact of his conviction or the duration of his sentence,” that claim “fall[s] within the ‘core’ of federal habeas.” Nelson v. Campbell, 541 U.S. 637, 643 (2004) (citation omitted). “By contrast, constitutional claims that merely challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall outside of that core.” Nelson, 541 U.S. at 643. State prisoners may bring such claims under 42 U.S.C. 1983, and federal prisoners may pursue such claims in appropriate circumstances under the APA or through an implied cause of action in equity, see, e.g., Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1231-1232 (10th Cir. 2005).
Second, the distinction determines whether certain PLRA restrictions apply. The PLRA creates a carefully reticulated scheme for “the entry and termination of prospective relief in civil actions challenging prison conditions.” Miller v. French, 530 U.S. 327, 331 (2000). And it broadly defines a “civil action with respect to prison conditions” as “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison,” while excluding “habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. 3626(g)(2). As this Court has explained, the PLRA tracks the basic distinction between habeas suits challenging the “fact or duration of confinement itself,” and civil actions “challenging the conditions of confinement.” Porter v. Nussle, 534 U.S. 516, 527-528 (2002) (citation omitted).

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25 2. Respondents’ suit plainly constitutes a challenge to prison conditions that cannot proceed through habeas and must be governed by the restrictions in the PLRA. In their habeas petition, respondents’ only claim is an assertion of “Unconstitutional Conditions of Confinement.” App., infra, 87a (emphasis omitted); see also, e.g., id. at 66a (alleging that they are suffering from “current crowded conditions” at Elkton); id. at 74a (asserting that the “concentration of infected prisoners in unsafe conditions within * * * Elkton is dangerous”). In their briefing, respondents have further disclaimed any “quarrel * * * with the validity of their sentences,” asserting only that the conditions at Elkton violate the Eighth Amendment. Resp. C.A. Stay Opp. 11. The district court, too, has described the suit as focusing on allegedly “dangerous conditions within the prison created by the [COVID-19] virus.” App., infra, 17a (emphasis added). The bulk of the analysis in the injunction order also treats the case as a conditions-of-confinement challenge. For example, the court found that respondents have a likelihood of success based on its assessment of conditions related to “testing” and the inability to “separate [Elkton] inmates.” Id. at 23a. And the court did not order the traditional habeas relief of “simple release,” Munaf v. Geren, 553 U.S. 674, 693 (2008). Instead, it purported to “enlarge[]” the “conditions of [respondents’] confinement,” by requiring them to be “transfer[red] out of Elkton through any means,” including transfer to “another BOP facility.” App., infra, 27a-28a (emphasis added).

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26 Nonetheless, the district court characterized the action as a “habeas corpus proceeding[] challenging the fact or duration of confinement” App., infra, 26a, because -- while respondents challenge the “conditions within the prison,” id. at 17a -- they also “seek immediate release” from “continued imprisonment at Elkton,” id. at 18a. But if respondents succeed on the merits, it would not remotely “imply” that their “convictions or sentences” are invalid. Wilkinson, 544 U.S. at 82 (brackets and citation omitted). Nor would success entitle them to release, but only to the improvement of the challenged conditions. Indeed, respondents do not even seek release “from custody”; they request release “from the physical confines of Elkton,” which could include a “transfer furlough * * * to another facility,” App., infra, 54a n.2 (emphasis added). In any event, seeking release cannot automatically convert a suit to a habeas “fact or duration” challenge because the PLRA clearly contemplates that actions challenging “prison conditions” may lead to release in rare circumstances where the conditions cannot be redressed, because the statute sets out detailed requirements governing how and when such a “prisoner release order” may be issued. 18 U.S.C. 3626(a). In Brown v. Plata, this Court considered the proper application of those PLRA provisions to two cases in which California prisoners alleged that overcrowding and deficiencies in medical care constituted an Eighth Amendment violation that entitled them to orders granting the release or transfer of a portion of the state prison population. 563 U.S. at 507-508, 511. The Court never once questioned that the suit was

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27 a challenge “to prison conditions” that was squarely governed by the PLRA. Id. at 530; see also Nussle, 534 U.S. at 532 (recognizing that the PLRA covers “all inmate suits about prison life”).
3. a. Because this suit constitutes a challenge to conditions of confinement, respondents should not have been permitted to proceed in habeas at all. In denying a stay, the Sixth Circuit observed that this Court has never “foreclosed” the availability of habeas for conditions-of-confinement challenges. App., infra, 3a. But this Court has held that a prisoner who is not “seeking a judgment at odds with his conviction or with the State’s calculation of time to be served” is not raising a claim “on which habeas relief could [be] granted on any recognized theory.” Muhammad v. Close, 540 U.S. 749, 754–755 (2004) (per curiam). It has also repeatedly reiterated that injunctive suits challenging the “conditions of a prisoner’s confinement” are not displaced by the specific habeas remedy precisely because they fall outside of habeas’ “core.” Nelson, 541 U.S. at 643; see Preiser, 411 U.S. at 489.
b. Moreover, even if this Court were to hold that respondents may pursue their conditions-of-confinement challenge through habeas, the district court’s order would still be defective because it does not adhere to the requirements of the PLRA. That statute exempts only “habeas corpus proceedings challenging the fact or duration of confinement.” 18 U.S.C. 3626(g)(2) (emphasis added).
i. Because this suit challenges prison conditions, the district court should have adhered to the PLRA’s restrictions on injunctive relief, which require a court to find that an injunction

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28 “extend[s] no further than necessary to correct the harm the court finds requires preliminary relief,” and that the order is the “least intrusive means necessary to correct that harm.” 18 U.S.C. 3626(a)(2). The district court made no such findings, a failure that alone entitles the government to “immediate termination” of the district court’s order. 18 U.S.C. 3626(b)(2). And even had it recognized those procedural requirements, the court could not have made the requisite findings because the release or transfer of one-third of Elkton’s inmates was not “narrowly drawn,” minimally “intrusive,” or “necessary to correct the harm” the court identified. 18 U.S.C. 3626(a)(2). BOP has shown that its policies have appropriately mitigated the risk of COVID-19 at Elkton, and it has further demonstrated that it is capable of mass testing. App, infra, 149a-150a. Further, far from being appropriate to correct a harm, the dramatic remedy the court ordered is directly contrary to the CDC guidance to avoid transfers to the maximum extent possible. CDC Interim Guidance 13 (App, infra, 213a).
ii. The preliminary injunction is also incompatible with the PLRA because it is a “prisoner release order” that does not comply with any of the statute’s mandates regarding such relief. A “prisoner release order” may be “entered only by a three-judge court,” and only after “a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation * * * sought to be remedied” and “the defendant has had a reasonable amount of time to comply with” that order. 18 U.S.C. 3626(a)(3)(A) and (B). None of that occurred here.

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29 The district court contended that its injunction would not fall afoul of the PLRA, if it applied, because it is not a “release” order, but only an order “enlarg[ing]” or altering the “place of custody” “pending the outcome of a habeas action.” App., infra, 15a. The district court cited no cases in support of its novel claim of authority to “enlarge” respondents’ “place of custody” in this way.2 Under the PLRA, “[t]he term ‘prisoner release order’ includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population.” 18 U.S.C. 3626(g)(4). And Brown recognized that an order that permitted state officials to “comply by * * * transferring prisoners to [other] facilities,” was still a “prisoner release order” because it had the “‘effect of reducing or limiting the prison population.’” 563 U.S. at 511 (quoting 18 U.S.C. 3626(g)(4)). B. In any event, this Court likely would reject respondents’ Eighth Amendment claim on the merits. In a conditions-ofconfinement case like this, a prison official violates the prohibition against “cruel and unusual punishments,” U.S. Const. Amend. VIII, “only when two requirements” -- one objective, the other subjective -- “are met.” Farmer v. Brennan, 511 U.S. 825, 834, 846 (1994). Respondents have established neither.
2 The lack of precedent on “enlargement” via transfer may be due to another federal statute that explicitly mandates that “[n]otwithstanding any other provision of law, a designation of a place of imprisonment * * * is not reviewable by any court.” 18 U.S.C. 3621(b).

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30 1. First, challenged prison conditions must be, “objectively, ‘sufficiently serious’” that they deny “‘the minimal civilized measure of life’s necessities.’” Farmer, 511 U.S. at 834 (citations omitted); see Hudson v. McMillian, 503 U.S. 1, 9 (1992). Where the conditions pose health risks, “the seriousness of the potential harm” and probability that it will “actually” occur must at least present “an unreasonable risk of serious damage to [an inmate’s] future health.” Helling v. McKinney, 509 U.S. 25, 3536 (1993). In addition, “today’s society” must judge that risk “so grave that it [would] violate[] contemporary standards of decency to expose anyone unwillingly to [it].” Id. at 36. Respondents have not met that standard. The government acknowledges that COVID-19 poses significant health risks. But BOP has mitigated the risk of serious injuries at Elkton by its numerous and increasing responses. See pp. 7-11, 16, supra. Data from Elkton, filed in response to respondent’s motion to enforce, reflects that the efforts have significantly mitigated the risk. See App., infra, 187a-189a (charts). Even before the district court entered its April 22 injunction, the number of inmates transferred to a local hospital had peaked and dropped to nearly zero (with only one subsequent hospitalization), the number of inmates in the hospital had similarly peaked and was in steady decline, and the number of staff members with confirmed infections had plateaued and flattened. See id. at 187a, 189a. And although

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31
three inmates died after April 22, their deaths reflect the effects of the virus’s spread before April 6.3
Respondents have also failed to show that the mitigated health risk at Elkton is “so grave” that it would “violate[] contemporary standards of decency to expose anyone unwillingly to [it],” Helling, 509 U.S. at 36. COVID-19 poses risks confronting not only prisoners but law abiding citizens nationwide, including front-line workers and vulnerable nursing home patients. The CDC has issued guidance for appropriately mitigating the risks in correctional facilities, explaining that inmates may continue to be detained in “housing units” in which bunks “ideally” are separated by at least six feet, but that such separation and other “social distancing strategies” involving recreation, meals, and other activities “need to be tailored to the individual space in the facility.” CDC Interim Guidance 11 (App, infra, 211a) (emphasis omitted). That expert guidance is contrary to the view that risks at Elkton are such that contemporary societal standards wholly forbid them.
The district court concluded that respondents established the Eighth Amendment’s objective requirement because respondents have a “very serious medical need to be protected from the virus.”
3 See BOP, Inmate Death at FCI Elkton (May 8, 2020) (announcing death of inmate who had been hospitalized in early April), https:// www.bop.gov/resources/news/pdfs/20200509_pres_rel_elk.pdf; BOP, Inmate Death at FCI Elkton (May 6, 2020) (same), https://www. bop.gov/resources/news/pdfs/20200509_press_release_elk.pdf; BOP, Inmate Death at FCI Elkton (Apr. 26, 2020) (same), https://www. bop.gov/resources/news/pdfs/20200426_press_release_elk.pdf.

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32 App., infra, 22a-23a. But while that need is relevant, see ibid., it is not sufficient to establish a risk that contemporary standards of decency would condemn, particularly in the context of a pandemic that led health officials to advise everyone to remain in place to the extent possible and to issue guidance to correctional facilities in particular not to transfer inmates.
2. Respondents have also failed to show that the subjective “intent” of Elkton’s officials transforms Elkton’s conditions into Eighth Amendment “punishment.” Where challenged conditions are “not formally meted out as punishment by the statute or the sentencing judge,” officials will impose “punishment” only if they “act with a sufficiently culpable state of mind,” Wilson v. Seiter, 501 U.S. 294, 298, 300 (1991), which is demonstrated “only [by] the unnecessary and wanton infliction of pain,” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297); see, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976). Nothing remotely suggests that Elkton’s officials -- who have affirmatively sought to mitigate COVID-19’s risks -- are wantonly “punishing” respondents.
Whether an official’s conduct can be deemed “‘wanton’ depends upon the constraints facing the official.” Wilson, 501 U.S. at 303 (emphasis omitted); see Whitley v. Albers, 475 U.S. 312, 320 (1986). “[D]eliberate indifference” can constitute “wanton” intent in prison-conditions contexts because -- “as a general matter” -- the government’s responsibility to rectify dangerous conditions “‘does not ordinarily clash with other equally important governmental responsibilities’” or implicate unusual “constraints” on its action. Wilson, 501 U.S. at 302-303 (quoting

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33 Whitley, 475 U.S. at 320). Like the criminal-law “mens rea requirement” for “subjective recklessness,” that standard requires proof that officials “know[] of and disregard[] an excessive risk of inmate health or safety,” Farmer, 511 U.S. at 836-837, 839-840, i.e., they must “‘consciously disregard’” that risk by subjectively recognizing it while failing to “respond[] reasonably.” Id. at 839, 844 (brackets and citation omitted); see Wilson, 501 U.S. at 299 (A “lack of due care” or other “error in good faith” is insufficient.) (citation and emphasis omitted). That subjective inquiry “incorporates due regard for [officials’] ‘unenviable task of keeping dangerous men in safe custody under humane conditions,’” Farmer, 511 U.S. at 845 (citation omitted), by “leav[ing] ample room for professional judgment, constraints presented by the institutional setting, and the need to give latitude to administrators who have to make difficult trade-offs as to risks and resources,” Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011). This Court has thus emphasized that courts must use “caution” in exercising their equitable power and warned that they may not “‘enmesh[]’” themselves “‘in the minutiae of prison operations.’” Farmer, 511 U.S. at 846-847 (citation omitted).
BOP officials have not even arguably been “deliberately indifferent” to the evolving COVID-19 pandemic. To the contrary, they have deliberately confronted the risks posed by this public health crisis by, among other things, providing inmates with masks and continuous access to soap, water, and sinks; providing additional protective equipment as necessary; limiting inmate movements and group gatherings by modifying meal, recreation,

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34 commissary, and other procedures; educating inmates and staff on preventing contraction and transmission of the virus; implementing measures to screen and quarantine incoming inmates; conducting COVID-19 testing in accordance with CDC guidelines; isolating inmates who present with COVID-19-like symptoms; quarantining asymptomatic inmates who have contracted the virus; implementing enhanced daily cleaning of common areas; and providing inmates with disinfectant cleaners. See pp. 7-10, supra; App., infra, 93a-105a, 165a-186a.
In the preliminary injunction order, the district court recognized that Elkton’s officials “have sought to reduce [COVID19] risks” and that their actions reflect “good efforts,” but it suggested that such mitigation could “only be so effective” and that “despite their efforts, the Elkton officials fight a losing battle.” App., infra, 9a, 12a, 23a. The court also deemed Elkton’s level of COVID-19 testing inadequate and criticized Elkton’s lowsecurity physical design (which consists of dormitory-style housing), concluding that those factors gave BOP “little chance of obstructing the spread of the virus.” Id. at 10a-13a. The court then held -- without further analysis -- that Elkton’s officials had been “deliberately indifferent.” Id. at 23a. That legal conclusion is fundamentally flawed. Nothing suggests that officials subjectively believed their extensive efforts, which track the CDC’s guidance, were not a reasonable and appropriate response to the threat posed by COVID-19. In holding otherwise, the district court failed to account for the practical constraints facing officials, and by focusing on what it perceived to be

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35 “inadequate measures” that it deemed “dispositive of [officials’] mental state,” it erroneously applied a standard that has no grounding in this Court’s Eighth Amendment jurisprudence. Valentine, 956 F.3d at 802. Moreover, prospective relief would have been warranted only if respondents had established not only that BOP officials’ “‘attitudes and conduct’” were subjectively wanton “at the time suit [wa]s brought,” but also that the officials currently are “knowingly and unreasonably disregarding an objectively intolerable risk of harm” and “will continue to do so * * * into the future” absent relief. Farmer, 511 U.S. at 845-846 (quoting Helling, 509 U.S. at 36). Respondents failed to do so.
For its part, the court of appeals, in denying a stay, failed even to address the subjective component of the Eighth Amendment claim, disregarding respondents’ burden to establish “deliberate indifference” by those working to combat the risks of COVID-19. See App., infra, 4a. That court’s exclusive focus on the clearerror standard for factual findings, ibid., wholly disregards the significant legal flaws in the district court’s analysis. III. THE BALANCE OF EQUITIES SUPPORTS A STAY
1. The third stay requirement is met because “irreparable harm will result from the denial of a stay.” Conkright, 556 U.S. at 1402 (brackets and citation omitted). The harms to BOP and to the public interest “merge” when relief is sought against the government, Nken v. Holder, 556 U.S. 418, 435 (2009), and the public interest here plainly favors a stay.
a. In Brown, this Court recognized that the “mistaken or premature release of even one prisoner can cause injury and harm.”

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36 Brown, 563 U.S. at 501. The risk of harm from the court’s order in this case is greatly magnified for at least two reasons.
First, the CDC has recommended that correctional facilities “[r]estrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities” in all but the most essential circumstances to “reduce the risk of transmission and severe disease from COVID-19.” CDC Interim Guidance 2, 9 (App., infra, 202a, 209a) (emphasis omitted). Indeed, it has broadly cautioned against unnecessary travel even by the civilian population. See CDC, Coronavirus and Travel in the United States (May 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-inthe-us.html (“[t]ravel increases your chances of getting and spreading COVID-19”). And, as BOP has documented, travel by federal inmates provides particular challenges because -- while the inmate transfer process has been altered to address the pandemic -- inmates are still likely to come into contact with others during transfer, including for lengthy periods while they are being transported in vehicles. App., infra, 140a ¶ 7.
Second, the district court gave insufficient attention to the risk that its orders might improperly place dangerous offenders within the community. In its May 19 order, for example, the court explicitly revised the BOP’s and the Attorney General’s expert guidance regarding when it is safe to place a prisoner in home confinement, forcing BOP to “disregard” highly relevant information like a prior “violent offense.” See p. 18, supra.
b. The district court’s order also inflicts harm on BOP and the public by inappropriately interjecting the judiciary into

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37 sensitive areas of prison administration. The preliminary injunction and the court’s numerous subsequent orders force BOP to divert its resources from its systemic efforts to combat COVID19. Instead of working to accomplish the priorities established by “subject-matter experts” in accordance with CDC and WHO guidance, App., infra, 93a ¶ 7, BOP must put its efforts into adhering to the court’s dictates.
In staying more moderate preliminary injunctions on prison administrators, the Fifth and Eleventh Circuits have recognized the harm that diverting prison resources can inflict on overall attempts to stem the tide of infection in a pandemic. See Valentine, 956 F.3d at 803 (order improperly “interfere[d] with the rapidly changing and flexible system-wide approach that [the Texas Department of Criminal Justice] has used to respond to the [COVID-19] pandemic”); Swain, 2020 WL 2161317, at *5 (order would impose irreparable harm by precluding state from “allocat[ing] scarce resources among different * * * operations necessary to fight the pandemic”). Here, BOP has documented the extensive output of staff time and resources required to evaluate and transfer over 800 inmates, let alone in the manner and timeframe imposed by the May 19 order. See, e.g., App., infra, 129a ¶ 48, 132a-136a ¶¶ 9-17, 21-22.
c. The district court apparently believed that any harms imposed by its order were outweighed by the harms that would ensue from keeping subclass members incarcerated at Elkton. But the specific circumstances it relied on -- the general threat of COVID19 coupled with what it viewed as inadequate testing and social

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38 distancing -- could not remotely justify the peremptory order to remove more than 800 inmates from Elkton. In any event, several of the premises of the court’s order have proved erroneous. For example, while the district court apparently believed it would be simple to transfer inmates from Elkton to other facilities where “single-cell placement, or social distancing” may occur, App., infra, 28a, Elkton’s dormitory style is typical of low-security federal facilities. App, infra, 197a ¶ 29. Accordingly, transferring Elkton inmates to institutions meeting the district court’s requirements may necessitate moving them to highersecurity facilities, which poses “significant security concerns.” Id. at 199a ¶ 37.
IV. AT A MINIMUM, THE COURT SHOULD STAY THE INJUNCTION TO THE EXTENT IT GRANTS CLASSWIDE RELIEF This Court has reserved the question whether habeas claims
may ever be pursued as a class action. See Jennings v. Rodriguez, 138 S. Ct. 830, 858 n.7 (2018) (Thomas, J., concurring in part and concurring in the judgment). But regardless of how that question is answered, the court-defined class in this case does not satisfy the commonality and typicality requirements of Federal Rule of Civil Procedure 23(a). See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n.5 (2011). Thus, at the very least, the injunction should be stayed to the extent it grants classwide relief.
Even if the four individual respondents themselves could demonstrate an Eighth Amendment violation, each member of the class has not suffered “the same injury,” as is required for commonality, Dukes, 564 U.S. at 350 (citation omitted), because each has

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39 different medical needs and presents a distinct risk profile for contracting COVID-19, see, e.g., Kress v. CCA of Tennessee, LLC, 694 F.3d 890, 893 (7th Cir. 2012). Respondents also cannot demonstrate typicality because different class members would be entitled to “different injunction[s] or declaratory judgment[s]” depending on their needs. Dukes, 564 U.S. at 360. The injunction reflects as much, because it requires BOP to make individualized assessments about the form of relief or transfer necessary for each class member. And the court has even directed respondents to survey the entire class to determine whether some members wish to remain at Elkton. See p. 17, supra.
CONCLUSION For the foregoing reasons, this Court should stay the preliminary injunction pending the completion of further proceedings in the court of appeals and, if necessary, this Court. Alternatively, the Court should stay the injunction to the extent it affords class-wide relief. The Court should also grant an administrative stay pending resolution of this application. Respectfully submitted.
NOEL J. FRANCISCO Solicitor General
MAY 2020

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(ORDER LIST: 590 U.S.)

TUESDAY, MAY 26, 2020

19A1041

ORDER IN PENDING CASE WILLIAMS, WARDEN, ET AL. V. WILSON, CRAIG, ET AL.

The application for stay presented to Justice Sotomayor and by her referred to the Court is denied.
The Government is seeking a stay only of the District Court’s April 22 preliminary injunction. But on May 19, the District Court issued a new order enforcing the preliminary injunction and imposing additional measures. The Government has not sought review of or a stay of the May 19 order in the U.S. Court of Appeals for the Sixth Circuit. Particularly in light of that procedural posture, the Court declines to stay the District Court’s April 22 preliminary injunction without prejudice to the Government seeking a new stay if circumstances warrant.
Justice Thomas, Justice Alito, and Justice Gorsuch would grant the application.

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

TROY WRAGG, MICHAEL SCRONIC, LEONARD BOGDAN, and ELIEZER SOTO-CONCEPCION, individually and on behalf of all others similarly situated,
Petitioners,
v.
DAVID E. ORTIZ, in his capacity as Warden of the Federal Correctional Institution, Fort Dix, and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons,
Respondents.

Case No. 20-cv-5496-RMB [PROPOSED] ORDER

[PROPOSED] ORDER This Court, having directed the parties to address footnote 26 of the Court’s May 27, 2020 opinion (see ECF No. 47), and having reviewed the Respondents’ Letter submission and Petitioners’ Letter Motion for Reconsideration, and any response thereto, pursuant to Local Civil Rule 7.1(i), the Court HEREBY ORDERS that: 1. Petitioners’ Motion for Reconsideration (ECF No. 49) is granted; 2. That portion of the Court’s May 27, 2020 opinion dismissing Petitioners’ Complaint is vacated, and Respondents’ Motion to Dismiss will be held in abeyance pending completion of the limited discovery ordered herein; and 3. Discovery shall proceed as follows: Petitioners shall serve discovery requests on Respondents by June 9, 2020; Respondents shall serve responses and objections by June 15, 2020; and the

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parties shall meet and confer to develop a joint discovery plan for submission to the Court by June 19, 2020 (or, if the parties cannot agree, they shall submit competing discovery proposals to the Court by that date).

IT IS SO ORDERED.

Date: __________________

______________________________ Hon. Renee Marie Bumb, U.S.D.J.

 
 Case 1:20-cv-05496-RMB Document 55 Filed 06/10/20 Page 1 of 6 PageID: 1826

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE

TROY WRAGG, et al.,
Petitioners v.
DAVID E. ORTIZ, et al.,

Civ. No. 20-5496 (RMB) OPINION

Defendants

Appearances:
Jeanne Locicero, Esquire Tess Meiling Borden, Esquire American Civil Liberties Union of New Jersey Foundation 89 Market Street, 7th Floor P.O. Box 32159 Newark, New Jersey 08102
Attorneys for Petitioners
John F. Basiak,Jr.,AUSA Mark E. Coyne, AUSA Elizabeth A. Pascal, AUSA J. Andrew Ruymann, AUSA John T. Stinson, AUSA United States Department of Justice Office of the U.S. Attorney 401 Market Street P.O. Box 2098 Camden, New Jersey 08101
Attorneys for Respondents
Bumb, United States District Judge:

This matter comes before the Court upon Petitioners’ informal request, under Federal Rule of Civil Procedure 60(b)(6), to vacate

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this Court’s prior Order Of May 27, 2020. Rule 60(b)(6) is a catch-all provision providing litigants with a means to obtain relief from a judgment for any reason “that justifies relief.” Buck v. Davis, 137 S. Ct. 759, 777–78 (2017) (quoting Fed. R. Civ. P. 60(b)(6)). “[A] district court may only grant relief under Rule 60(b)(6) in “extraordinary circumstances where, without such relief, an extreme and unexpected hardship would occur.” Satterfield v. Dist. Attorney Philadelphia, 872 F.3d 152, 158 (3d Cir. 2017) (quoting Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014) (quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)); see also Boughner v. Sec’y of Health, Ed. & Welfare, 572 F.2d 976, 978 (3d Cir. 1978)).
In the Order from which Petitioners seek relief, the Court held that it lacks jurisdiction over the habeas portion of Petitioners’ hybrid habeas petition – civil rights complaint because their claims relate to conditions of confinement. Petitioners had asserted jurisdiction under 28 U.S.C. §2241 based on the allegation that “there is no set of protective measures that Respondents can feasibly implement to contain the spread of COVID-19 in Fort Dix.” (Petr’s Mem., Dkt. No. 30 at 38; Compl. ¶ 133, Dkt. No. 1) (alleging “The current population of Fort Dix, both of incarcerated individuals and the staff who come through on a daily basis and work in the same confined space, ensures that any effective measures that would mitigate Petitioners’ exposure
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to and risk of serious illness from COVID-19 are impossible to
implement.”)
The Court also ruled, in the alternative, that even assuming
habeas jurisdiction Petitioners failed to meet their burden of
showing that preliminary injunctive relief should be granted. The
Court did note in Footnote 26 of its Opinion, relating to its
preliminary injunctive analysis, that two inmates, Michael Scronic
and Tommie Telfair, had averred in a conclusory manner that none
of the inmates were being evaluated by a nurse or doctor. It is
this footnote which has caused a point of contention between the
parties. Specifically, the Court’s footnote reads as follows:
Two inmates, in particular Scronic and Telfair, state that “to [their] knowledge” none of the inmates have been evaluated by a nurse or doctor, and Scronic believes that inmates have COVID-19 and are not being tested. Respondents have attempted to respond to these conclusory and abstract opinions, contending that no medical attention is being denied. To the extent that Petitioners wish to press this position to show that more than a few isolated incidents of failure to address medical needs exists, they may seek to supplement the record and the Court will reconsider its Opinion and engage in fact-finding provided Petitioners can show that a favorable finding in this regard would alter the Court’s conclusion.
Petitioners interpret this footnote as the Court’s invitation
to engage in limited discovery. It was not such an invitation.
As the Court noted, the declarations submitted by inmates Scronic
and Telfair were “conclusory and abstract opinions.” In opposition
to Petitioners’ motion for preliminary injunctive relief,
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Respondents attempted nonetheless to respond to such broad accusations, introducing evidence that they were not denying the medical needs of inmates. Thus, in footnote 26, the Court afforded Petitioners the opportunity to supplement their declarations, to give details where none had been provided. Rather than providing such evidence, such as the identities of the inmates referred to in their declarations, for example, Petitioners complain that they need discovery. Yet, it is their own witnesses who made the disturbing, but yet, conclusory allegations.
The Petitioners introduced the sworn declarations of four inmates as evidence to establish deliberate indifference rising to an Eighth Amendment violation. For example, inmate Scronic swore that since May 6 no one at the Camp had been evaluated for COVID19 symptoms. In contradiction, however, he admitted that there are routine temperature checks being done. Inmates Valas and Telfair also confirmed in their declarations that routine temperature checks are being done at least every other day. (Although Valas swore “the highest temperature the thermometer [used by staff] registers 97.9 degrees Fahrenheit,” Valas presented no explanation to support such bizarre statement. Docket No. 30-5, at ¶ 27). Moreover, the inmates complained in their declarations that a number of inmates were not reporting their symptoms for fear of being sent to quarantine. Of course, this
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begs the question as to how Respondents can be deliberately indifferent to inmates who express no health concerns.
Petitioners contend that this Court should, on a Motion to Dismiss, accept as true the declarations of the inmates they submitted and permit discovery to move forward. The Court did, and thus found that even resolving the disputes all in favor of Petitioners, they failed to present such an extraordinary case as to warrant the type of novel conditions-of-confinement habeas claim suggested by the Supreme Court in Preiser v. Rodriguez in 1973, but never recognized by the Supreme Court or Third Circuit Court of Appeals.1 The Court afforded Petitioners an opportunity to put forward more facts to back up their conclusory, and to a degree contradictory, accusations, but they have not done so. Instead, they ask for discovery. Respondents accuse Petitioners of going on a discovery fishing expedition. The Court agrees. Because Petitioners appear to have cast a net too broad, they should not be permitted to go fishing with the hopes they will catch something to fill it.
Habeas petitioners are not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 904 (1997).
1 411 U.S. 475, 499 (1973) (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”))
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They must show good cause. Id. Having failed to give substance to their own witnesses’ conclusory statements, Petitioners will not be permitted to go looking elsewhere. Despite affording Petitioners the opportunity to elucidate their own witnesses’ statements, Petitioners sidestepped such opportunity to make their case. Nothing in the Petitioners’ latest submission presents extraordinary circumstances that this Court should vacate its Order dismissing the case for lack of jurisdiction, pursuant to Fed. Rule 60(b)(6).
Finally, the Court takes this opportunity once again to reiterate its view that a vulnerable inmate who is truly at risk is able to pursue the statutory avenues of relief available to him. Counsel for Petitioners may perform a valuable service in this regard.

Dated: June 9, 2020

s/Renée Marie Bumb RENÉE MARIE BUMB United States District Judge

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