Case 1:20-cv-00756 Document 1 Filed 03/18/20 USDC Colorado Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO DENVER DIVISION

EDWARD NELLSON, individually, and )

a CLASS of similarly-situated persons, )

)

Plaintiffs,

)

)

v.

)

)

WARDEN J. BARNHART, in his

)

Individual and official capacity

)

)

And

)

)

UNITED STATES FEDERAL

)

BUREAU OF PRISONS,

)

)

Defendants.

)

Civil Action No.: JURY DEMANDED

COMPLAINT FOR DECLARATIVE AND INJUNCTIVE RELIEF REGARDING EDWARD NELLSON AS AN INDIVIDUAL AND ALL
SIMILARLY SITUATED PERSONS AS A CLASS

Plaintiff, Edward Nellson, files this Complaint on behalf of himself, and as

a representative of all similarly situated members of a class, against the United

States Bureau of Prisons (“BOP”), and Warden Barnhart in his individual and

official capacity, using 28 U.S.C. §§ 1343(a)(4), 2201, 2202, and Fed. R. Civ. P. 65, to

vindicate their rights to be free from cruel and unusual punishment under the

Eighth Amendment and other applicable Constitutional provisions.

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INTRODUCTION The people of this country face a critical threat from the novel coronavirus COVID-19. This virus has been declared a pandemic by the World Health Organization. https://www.who.int/emergencies/diseases/novel-coronavirus2019/events-as-they-happen (last accessed March 15, 2020). This virus is spread person to person, with the CDC recommending the disbandment of all mass gatherings, social distancing is key to avoiding the spread of this illness. https://health.clevelandclinic.org/covid-19-understanding-quarantine-isolationand-social-distancing-in-a-pandemic/ (last accessed March 15, 2020). Unfortunately, for people in prison, social distancing is not possible. Further, medical care and testing is entirely in the hands of Defendant Federal Bureau of Prisons, which literally holds prisoners’ lives in their hands. Testing and isolation are the key to preventing the spread of COVID-19 in prison. However, despite this fact and despite the fact that prisons are a known hotbed for infections and viral pandemics, Defendants have yet to implement a systemic testing protocol for prisoners and staff. This is outrageous and a dereliction of duty towards some of the most vulnerable people in our society. By failing to test prisoners and staff, Defendants are knowingly risking the lives of every prisoner in the BOP, including USP Florence.
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JURISDICTION AND VENUE 1.
Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343(a)(4). This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201 and 2202. This Court may also grant injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. This Court has authority to award costs and attorneys’ fees under 42 U.S.C. § 1988.
2. Venue is proper under 28 U.S.C. § 1391(b) and L.R. 3.1(B)(3) because (1) a substantial part of the events and omissions giving rise to Plaintiff’s claims occurred within this District and Division; (2) Defendants reside and transact business in this District and Division; and (3) Defendants transact business throughout the country, therefore any judicial district where Defendant is subject to personal jurisdiction with respect to this action is appropriate.
PARTIES 3.
At all times relevant to this Complaint, Plaintiff Edward Nellson was a citizen of the United States and is currently incarcerated in Colorado. Nellson is currently an prisoner in the BOP. At all times relevant to this Complaint, Nellson
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had clearly established legal rights under state and federal law and the United States Constitution. Nellson submits himself to the jurisdiction and venue of this Court and is entitled to bring this action under state and federal law for all general, special, and any other permissible damages as well as for Declaratory and Injunctive relief.
4. Defendant United States Federal Bureau of Prisons (“BOP”) is a federal agency organized and existing under federal laws and has been so for a period preceding six months prior to the filing of this case. Also, at the time of the subject event that has given rise to this lawsuit, BOP was responsible for the care and protection of all individuals remanded by the Courts into the custody of the BOP. BOP has developed, promoted, and instituted a practice and policy of responding to the spread of the deadly coronavirus pandemic without testing and isolating individual prisoners for the virus.
5. Defendant Warden J. Barnhart is the Warden at USP Florence. Defendant Barnhart is responsible for the implementation or non-implementation of any practice and procedure with respect to screening, testing, and addressing COVID-
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19 in USP Florence, CO. Defendant Barnhart has ultimate authority within USP Florence.
6. The Defendants have adopted and continue to implement and enforce—by affirmative act or omission—a policy that leaves Plaintiff and all similarly situated individuals exposed to infection from an incredibly deadly virus running pandemic through this country. Nellson is using the U.S. Constitution, federal statutes, 28 U.S.C. §§ 1343(a)(4), 2201, 2202, and Fed. R. Civ. P. 65, and other applicable federal laws, as the vehicle to sue the BOP regarding his federal claims.
7. Defendants’ practice and policy ensures that the prisoners within BOP, including USP Florence, are continually exposed to a multitude of other prisoners, in close proximity, without adequate testing to ensure that prisoners with the virus are removed from that population.
STATEMENT OF FACTS A. COVID-19 is identified in Wuhan, China, and begins its spread
8. China reported an outbreak of a flu-like illness in the city of Wuhan, in the Hubei province, to the World Health Organization on December 31, 2019.
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https://www.pharmaceutical-technology.com/news/coronavirus-a-timeline-ofhow-the-deadly-outbreak-evolved/ (last accessed on March 15, 2020). This new coronavirus is labelled COVID-19. Id.
9. Within 11 days the first death was reported in China. Id. The disease was confirmed to have spread to Thailand two days later, on January 13, 2020, and Japan two days after that, on January 15, 2020. Id. South Korea and the United States report their first cases of the virus within the next week. Id.
10. In response to this international spread, the World Health Organization (“WHO”) declared a health emergency on January 22, 2020. Id.
11. Over the next week Singapore, Nepal, France, Mexico, Sri Lanka, Germany, the United Arab Emirates, Australia, and Taiwan all report cases of the COVID-19 virus. Id. Additionally, by January 29, 2020, the first cases of community spread of COVID-19, that is spread within a country to individuals who had not visited Wuhan, China, or come into contact with someone who had, were reported in Japan, Taiwan, and Germany. Id.
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12. On January 30, 2020, the United States reported its first case of domestic spread of the Coronavirus. Id. The next day, with the death toll confirmed at 213, the WHO declared COVID-19 a global health emergency. Id.
13. By February 12, 2020, the death toll from COVID-19 has passed 1,100 and the Mobile World Congress was cancelled over fears of the virus. Id. By the next day, the death toll had risen by 254, to 1,369. Id.
14. On February 27,2020, with the death toll from COVID-19 topping 2,800 and having spread to a dozen other countries, the United States detected the first suspected community spread case within the U.S.
15. On March 11, 2020, the WHO declared COVID-19 a pandemic. Id. At this time, the death toll has passed 5,800. Id. COVID-19 has spread to 126 countries and Vatican City. https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/ world-map.html (last accessed March 15, 2020).
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B. COVID-19 spreads throughout the United States 16.
Having confirmed the first case of COVID-19 in the United States on January 21, 2020, the virus has spread to 46 states and the District of Columbia, according to the Centers for Disease Control (“CDC”). https://www.cdc.gov/ coronavirus/2019-ncov/cases-in-us.html (last accessed on March 15, 2020). An employee of the New York Department of Corrections and an employee of the Washington Department of Corrections have tested positive for COVID-19 on March 15, 2020, and March 12, 2020, respectively.
17. As of March 13, 2020, the U.S. had reported 1,629 cases of COVID-19 and 41 deaths. Id. Those numbers are rapidly increasing. By March 15, 2020, according to other sources, COVID had reached over 3,000 cases and 57 deaths. https://www.livescience.com/coronavirus-updates-united-states.html (last accessed March 15, 2020).
18. Nursing homes nationwide, where people live in close quarters daily, have limited visitors and begun testing of residents and workers.
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https://www.washingtonpost.com/nation/2020/03/12/coronavirus-seattlenursing-homes/ (last accessed March 15, 2020).
19. The President declared the COVID-19 spread within the United States a national emergency on March 13, 2020. https://www.whitehouse.gov/ presidential-actions/proclamation-declaring-national-emergency-concerningnovel-coronavirus-disease-covid-19-outbreak/ (last accessed March 15, 2020). This proclamation noted that COVID-19 threatens to strain the U.S. hospital and medical resources. Id. C. How COVID-19 is spread, its effects and its deadliness
20. COVID-19 is mainly spread person to person, both by being in close contact and from respiratory droplets spread through coughing and sneezing. https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed on March 15, 2020).
21. COVID-19 is, however, transmissible by contact with contaminated surfaces as well as by persons who do not show symptoms. Id.
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22. While COVID-19 spread is slower than that of influenza, its reproductive number, that is the number of people infected per infected person, is between 2 and 2.5, higher than that of the flu. https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200306-sitrep-46-covid19.pdf?sfvrsn=96b04adf_2 (last accessed on March 15, 2020).
23. One major difference between COVID-19 and influenza is that, while there are some people who can spread the virus 24-48 hours prior to symptom onset, pre-symptom spread is not a primary driver of transmission for COVID-19. Id.
24. The main symptoms of COVID-19 are fever, cough, and shortness of breath. Id. It can, however, lead to pneumonia, cytokine storm, and multi organ failure leading to death. https://www.aljazeera.com/news/2020/02/infectedcoronavirus-200210205212755.html (last accessed March 15, 2020).
25. 15% of those infected with COVID-19 develop a severe infection, requiring hospitalization and oxygen treatment. https://www.who.int/docs/default-
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source/coronaviruse/situation-reports/20200306-sitrep-46-covid19.pdf?sfvrsn=96b04adf_2 (last accessed on March 15, 2020).
26. 5% of individuals infected with COVID-19 develop critical infections, requiring ventilation in a hospital. Id.
27. 3-4% of COVID-19 patients dies as a result of the infection, which at this time is a rate well in excess of the flu, which has a mortality rate well below 0.1%. Id. D. Testing is critical for containment of COVID-19
28. With the heightened infectivity of COVID-19, social distancing, that is keeping a distance from infected individuals, and medical isolation are critical to prevent the spread of the virus. https://www.cdc.gov/coronavirus/2019-ncov/ cases-updates/summary.html (last accessed March 15, 2020).
29. Social distancing is not available for prisoners in BOP prisons, including USP Florence. BOP prisons currently house 175,483 per the BOP. https://www.bop.gov/mobile/about/ population_statistics.jsp (last accessed
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March 15, 2020). This leaves prisoners like Nellson packed into close quarters, housed with other prisoners, with multiple cells in a single pod, sharing meals multiple times per day.
30. BOP prisoners, including those as USP Florence, including Plaintiff Nellson, and putative class members, take meals in a communal chow hall, utilize communal showers, have cells with open toilets in them, and have communal recreation areas.
31. Without the ability to isolate and engage in social distancing, isolation of prisoners who have COVID-19 from this population prior to passing the infection is critical to controlling the spread of this illness.
32. Isolating all prisoners with the symptoms of COVID-19, fever, cough, or shortness of breath, and testing for the virus is the only effective means to prevent the spread of COVID-19 in this captive population.
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E. COVID-19 arrives in Colorado.

33.

On March 10, 2020, Colorado had 33 cases of COVID.

https://www.nbc11news.com/content/news/15-total-cases-of-COVID-19-in-

Colorado-one-confirmed-case-in-Gunnison-County--568667371.html

(last

accessed March 15, 2020).

34.

On March 14, 2020, Colorado Gov. Jared Polis issued the extraordinary

executive order requiring all Colorado ski resorts to close.

35.

As of March 15, 2020, there were 131 presumptive positive cases of COVID

in Colorado and one confirmed death. https://www.kktv.com/content/news/

BREAKING--568535251.html.

36.

As of March 15, 2020, Colorado had identified COVID-19 cases in seventeen

counties, including Denver County and Arapahoe County, both highly populated

counties. Colorado has also identified one COVID-19 case in Pueblo County, a

county near USP Florence and other BOP prisons.

37.

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On March 16, 2020, the Colorado Governor’s Office ordered the closure of all bars, restaurants, theaters, and casinos statewide, for anything other than takeout or delivery. https://drive.google.com/file/d/1pXAFPXCTLqBZvTJpuqrH45YeLB_Jc2wP/vi ew (last accessed March 17, 2020). Even when people come to take out food, they are only allowed to be on premises five at a time. Id.
38. As stated above, USP Florence prisoners eat together and continue to serve each other food, with no testing or monitoring for symptoms. Further, USP Florence prisoners cannot be “five at a time” in their various living arrangements. Unable to take the precautionary measures, USP Florence prisoners are sitting ducks in this pandemic, at the mercy of Defendants’ inaction.
39. Upon information and belief, the number of COVID-19 infections is expected to grow exponentially over the next days and weeks, if not months.
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F. The CDC and subject-matter experts recognize the risk of the spread of disease, like influenza, within its institutions. 40. Even with the flu, the CDC had recommended “Rapid Detection of Cases”
to be done via testing of people with influenza-like illnesses to determine what viruses were circulating at the institution. https://www.cdc.gov/h1n1flu/ guidance/correctional_facilities.htm (last accessed March 15, 2020).
41. Prisoner populations are sicker than the general population. A 2018 study in The Lancet that incarcerated individuals have a higher burden of infectious illnesses such as HIV, hepatitis B and C, syphilis and tuberculosis than nonincarcerated individuals. https://www.thelancet.com/journals/lancet/article/ PIIS0140-6736(18)31251-0/fulltext (last accessed March 15, 2020).
42. Further, incarcerated populations have chronic, noninfectious diseases such as COPD, heart failure and kidney disease which also increase the risk for infections such as coronavirus. Id.
43.
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There are also clear indications that mortality is higher among the senior

population. See e.g. https://www.thelancet.com/journals/lancet/article/

PIIS0140-6736(20)30566-3/fulltext#seccestitle150 (last accessed March 15, 2020).

44.

6% of the BOP population is aged 60 and above while 19.5% of the BOP

prisoner population is aged 51 and above.

https://www.bop.gov/about/statistics/ statistics_prisoner_age.jsp (last

accessed March 15, 2020).

G. The BOP’s COVID-19 Response is inadequate

45.

The BOP, incusing USP Florence, has made a minimal response to the

COVID-19 pandemic. The BOP has suspended social visits, prisoner movement,

and legal visits. https://www.bop.gov/coronavirus/covid19_status.jsp (last

accessed March 15, 2020.

46.

Upon information and belief, neither BOP nor USP Florence have ordered

COVID-19 testing kits. https://abcnews.go.com/US/state-prisons-prepare-

coronavirus-federal-prisons-providing-significant/story?id=69433690

(last

accessed March 15, 2020).

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47. There is no screening or testing of current prisoners in either USP Florence or BOP custody for COVID-19. Id.
48. Neither BOP or USP Florence are making any effort to screen or test corrections officers, staff, or other individuals who work within these facilities for COVID-19. Id.
49. Further, upon information and belief, USP Florence prisoners assigned to kitchen and other sanitary-related duties are continuing to perform those duties. They are doing this with no screening and no testing to ensure they are not carriers.
50. Without such screening, the Defendant is knowingly leaving Nellson and all similarly situated prisoners in USP Florence exposed to the spread of a deadly virus that has created a pandemic across the globe.
51. Further, upon information and belief, certain BOP facilities have no hand sanitizer and no soap for hand washing.
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https://www.motherjones.com/politics/2020/03/the-coronavirus-is-spreadingand-reportedly-theres-no-soap-at-this-federal-jail-in-brooklyn/ (last accessed March 15, 2020).
H. Class Action Allegations 52.
Plaintiff brings this suit as a class action on behalf of himself and all others similarly situated (the “Class”) pursuant to Rules 23(a), 23(b)(1), and 23(b)(2).
53. Plaintiff seeks to represent the following Class on claims for declaratory and injunctive relief: All current and future prisoners in the custody of USP Florence and the BOP during the course of the COVID-19 pandemic.
54. Plaintiff reserves the right to amend the class definition if further investigation and discovery demonstrates that the class definition should be narrowed, expanded, or otherwise modified. Excluded from the Class are all nonhuman persons/entities, Defendants, and Defendants’ attorneys. Also excluded from the Class is any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff.
55.
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As a result of Defendants’ pattern, practice, and policy of failing to screen prisoners in the custody of BOP, test prisoners who exhibit symptoms of COVID19, and then isolate prisoners who test positive for COVID-19, the BOP is doing nothing to actually identify and prevent the spread of the COVID-19 virus. As a result, members of the Class are or will be deprived of their constitutional rights to be free of cruel and unusual punishment under the Eighth Amendment. Therefore, Plaintiff and putative Class members seek declaratory and injunctive relief to remedy Defendant BOP’s illegal and unconstitutional actions, policies, and practices.
56. As a result of Defendants’ pattern, practice, and policy of failing to screen staff for symptoms, test staff members who exhibit COVID-19 symptoms, and exclude staff members in contact with prisoners in the custody of the BOP who test positive for COVID-19, Defendants doing nothing to actually identify and prevent the spread of the COVID-19 virus. As a result, members of the Class are or will be deprived of their constitutional rights to be free of cruel and unusual punishment under the Eighth Amendment. Therefore, Plaintiff and putative Class members seek declaratory and injunctive relief to remedy Defendants’ illegal and unconstitutional actions, policies, and practices.
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57. The requirements of Rule 23(a), 23(b)(1), and 23(b)(2) are satisfied by this class action. 1. Rule 23(a) i. Numerosity
58. The information as to the exact and present size of the Class and the identity of the persons in the Class is in the control of the BOP. On information and belief, the Class presently encompasses approximately 175,483. This number is based on the BOP’s count of prisoners, available as of March 15, 2020. The number of persons who are members of the Class described above are so numerous that joinder of all members in one action is impracticable. ii. Commonality
59. Questions of law and fact common to the entire Class predominate over individual questions because the actions of Defendant BOP complained of herein—with respect to Cruel and Unusual Punishment—were generally applicable to the entire class. The common answers that Plaintiffs seek are simple
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and will result in a common resolution for the class. These legal and factual questions include, but are not limited to:
a. Whether the BOP, including USP Florence, has implemented and condoned a medical response to the COVID-19 pandemic that demonstrates deliberate indifference to the medical needs of the class members in failing to provide for the isolation of prisoners that show symptoms of the COVID-19 virus;
b. Whether the BOP, including USP Florence, has implemented and condoned a medical response to the COVID-19 pandemic that inflicts cruel and unusual punishment as proscribed by the Eighth Amendment to the Constitution in failing to isolate prisoners that demonstrate symptoms of COVID-19 virus;
c. Whether the BOP, including USP Florence, has implemented and condoned a medical response to the COVID-19 pandemic that demonstrates deliberate indifference to the medical needs of the class members in failing to provide for the systematic testing of prisoners that show symptoms of the COVID-19 virus for that virus; and,
d. Whether the BOP, including USP Florence, has implemented and condoned a medical response to the COVID-19 pandemic that
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demonstrates inflicts cruel and unusual punishment as proscribed by the Eighth Amendment to the Constitution in failing to systematically test prisoners that demonstrate symptoms of COVID-19 virus for that virus.
iii. Typicality 60.
Plaintiff’s claims are typical of the members of the Class because Plaintiff and all Class members were injured by the same policy and medical response to the COVID-19 pandemic as described in this Complaint: each exposed to suffering or death by the pandemic spread of COVID-19 from untested, un-isolated, prisoners showing symptoms of COVID-19. Plaintiff’s claim against the Defendants with regard to Eighth Amendment arises from the same practices and course of conduct that gives rise to the Eighth Amendment claim against Defendants of the Class members and is based on the same legal theories.
iv. Adequacy 61.
Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff has no interests that are contrary to or in conflict with those of the Class he seeks to represent.
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62. Plaintiff has retained competent counsel in both civil rights and class action litigation and will provide affidavits in support of this in his motion for class certification. 2. Rule 23(b)(1)
63. In this case, prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members and would establish incompatible standards of conduct for the party opposing the class. Here, if any other potential class member filed a lawsuit in this Court or in State Court seeking to declare the Defendants medical response plan to the COVID-19 virus this could create the risk of inconsistent or varying adjudications between or within these courts. In addition, if any other potential class member filed a lawsuit in this Court or in State Court seeking to enjoin Defendants COVID-19 response plan, the Defendant could be in the bizarre and untenable position of being unable to comply with one court order without simultaneously violating another court order. Therefore, certification of the Class under Rule 23(b)(1) is proper. 3. Rule 23(b)(2)
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64. Relief concerning Plaintiff’s rights under the laws herein alleged and with respect to the Class would be proper. Based on the practice and policy of failing to: • screen BOP prisoners and staff members, including prisoners and staff members of USP Florence, for symptoms of COVID-19, including fever, every day or at least every other day; • test all prisoners and staff members, including prisoners and staff members of USP Florence, for COVID-19, understanding that each day more people test positive who are asymptomatic; • test BOP prisoners and staff members, including prisoners and staff members of USP Florence, who exhibit symptoms of COVID-19; • isolate BOP prisoners, including prisoners of USP Florence, testing positive for COVID-19; and • exclude BOP staff members, including staff members of USP Florence, testing positive for COVID-19 from contact with BOP prisoners. Defendants have acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with regard to Class members as a whole and certification of the Class under Rule 23(b)(2) proper.
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COUNT I DECLARATORY AND INJUNCTIVE RELIEF FOR DEPRIVATION OF
EIGHTH AMENDMENT RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT BY RECEIVING ACCESS TO ADEQUATE
MEDICAL CARE PURSUANT TO 28 U.S.C. §§ 1343, 2201 and 2202 (Federal claim against Defendants Federal Bureau of Prisons and Warden J. Barnhart)
65. Plaintiff incorporates paragraphs 1 through 64 and all paragraphs this Court deems relevant to support this Count.
66. Based on the incorporated paragraphs to support Count I, Defendants’ acts and omissions in failing to provide adequate medical care—specifically the screening, testing, and isolation of prisoners testing positive for COVID-19 virus, as well as the failure to exclude staff members testing positive for COVID-19 from contact with BOP prisoners, including prisoners oat USP Florence—constitute deliberate indifference to the serious medical needs of Nellson, and all members of the Class, thereby establishing a violation of the Eighth Amendment of the United States Constitution. There simply is no doubt that based on the facts incorporated to support this Count, that these defendants know of and appreciate the serious risk of harm to the prison population, and simply have not taken reasonable steps to abate that harm.
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67. Defendants violated, and continues to violate, Nellson’s and the entire class’s Eighth Amendment rights by the deliberate enactment and enforcement of a policy not consistent with medical standards, which in effect, denied Nellson, and the entire class, from screening for COVID-19 and testing of both staff and prisoners demonstrating symptoms of the COVID-19 virus. Prisoners testing positive for COVID-19 should be isolated. BOP staff, including staff members of USP Florence, testing positive for COVID-19 should be excluded from contact with BOP prisoners, including prisoners at USP Florence. To a reasonable degree of medical certainty, the Defendants’ acts and omissions, including its enforcement of the BOP’s and USP Florence COVID-19 guidelines, if any, fell so substantially outside the standard of care and opposite reasonable medical judgment that they constituted a deliberate act of refusing Nellson and the entire class access to any medical care to prevent the spread of COVID-19—a deadly disease that can rapidly spread and advance to a deadly stage.
68. To the extent that tests for the COVID-19 virus was not provided because of financial considerations, such concerns are in violation of the U.S. Constitution, as they deny necessary and adequate medical care to Nellson and other similarly
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situated prisoners in violation of the Eighth Amendment to the United States Constitution.
69. To the extent that prisoners showing symptoms of the COVID-19 virus and/or testing positive for COVID-19 were not isolated because of financial considerations, such concerns are in violation of the U.S. Constitution, as they deny necessary and adequate medical care to Nellson and other similarly situated BOP prisoners in violation of the Eighth Amendment to the United States Constitution.
70. To the extent that Defendants’ staff showing symptoms of the COVID-19 virus and/or testing positive for COVID-19 were not kept from BOP prisoners because of financial considerations, such concerns are in violation of the U.S. Constitution, as they deny necessary and adequate medical care to Nellson and other similarly situated BOP prisoners in violation of the Eighth Amendment to the United States Constitution.
71. Consequently, Plaintiff is entitled to declaratory relief declaring the Defendants’ actions in failing to screen, test BOP prisoners, including prisoners at
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USP Florence, showing symptoms of COVID-19, and isolate BOP prisoners, including prisoners at USP Florence, who tested positive for COVID-19 virus is an unconstitutional deprivation of Plaintiff’s rights to be free of cruel and unusual punishment and injunctive relief enjoining the Defendants from continuing its failure to isolate and test prisoners showing such symptoms.
72. Similarly, Plaintiff is entitled to declaratory relief declaring the Defendants’ actions in failing to screen, test BOP staff, including staff at USP Florence, showing symptoms of COVID-19, and exclude BOP staff who tested positive for the COVID-19 virus from contact with BOP prisoners, is an unconstitutional deprivation of Plaintiff’s rights to be free of cruel and unusual punishment and injunctive relief enjoining Defendants from continuing its failure to isolate and test prisoners showing such symptoms.
ATTORNEY FEES Based on the foregoing, Plaintiff is entitled to reasonable attorney’s fees under all applicable laws, including the Equal Access to Justice Act, 28 U.S.C. § 2412.
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PRAYER FOR RELIEF WHEREFORE, Edward Nellson prays for a trial by jury of twelve and judgment against Defendants as follows: (a) That process issue and service be had on each Defendant; (b) That Plaintiff recover all costs of this litigation; (c) That a jury trial be had on all issues so triable; (d) That this Court certify a Class for the purposes of the permanent
injunctive relief sought based on the proposed Class definition in this Complaint, subject to any modifications this Court deems proper for the adjudication of the rights alleged to be violated; (e) That this Court issue an injunction and declaratory relief, requiring the BOP to immediately abandon its policy of inaction and begin screening prisoners and staff for symptoms of COVID-19, by at the very minimal testing for fever daily; and (f) That this Court issue an injunction and declaratory relief, requiring the BOP to immediately abandon its policy of inaction and begin testing all prisoners for COVID-19; and
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(g) That this Court issue an injunction and declaratory relief, requiring testing of prisoners and staff demonstrating symptoms of the COVID-19 virus, to wit, fevers, cough, and shortness of breath; and
(h) That this Court issue an injunction and declaratory relief, requiring isolation of BOP prisoners;
(i) That this Court issue an injunction and declaratory relief declaring that all BOP staff testing positive for COVID-19 be excluded from contact with BOP prisoners; and
(j) That this Court award attorney’s fees under all applicable laws, including the Equal Access to Justice Act, § 28 U.S.C. 2412; and
(k) That Plaintiff receive such other and further relief as the Court deems just and proper.
Respectfully submitted this 18th day of March 2020, /s/ MARIA-VITTORIA G. CARMINATI Maria-Vittoria G. Carminati (Co #50579)
NDH LLC 4601 DTC Blvd., Suite 300 Denver, CO 80237 720-445-5655 mvcarminati@ndh-law.com
/s/ MARIO WILLIAMS Mario B. Williams (Ga # 235254)
-30-

Case 1:20-cv-00756 Document 1 Filed 03/18/20 USDC Colorado Page 31 of 31

NDH LLC 44 Broad Street, NW, Suite 200 Atlanta, Georgia 30303 404-254-0442 / 404-935-9391 FAX mwilliams@ndh-law.com
NDH LLC 4601 DTC Blvd., Suite 300 Denver, CO 80237 720-445-5655 aparrott@ndh-law.com

/s/ ALEXANDRA PARROTT Alexandra L. Parrott (CO # 54188)

-31-

 
 U.S. District Court - District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:20-cv-00756-PAB-NYW

Nellson v. Barnhart et al Assigned to: Chief Judge Philip A. Brimmer Referred to: Magistrate Judge Nina Y. Wang Cause: 42:1983 Prisoner Civil Rights

Date Filed: 03/18/2020 Date Terminated: 10/22/2020 Jury Demand: Plaintiff Nature of Suit: 555 Prisoner - Prison Condition Jurisdiction: Federal Question

Plaintiff
Edward Nellson Individually, and a Class of similarly-situated persons

represented by Mario Bernard Williams NDH LLC 44 Broad Street NW Suite 200 Atlanta, GA 30303 404-254-0442 Fax: 404-935-9391 Email: mwilliams@ndh-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexandra Lee Parrott NDH LLC-Denver 4601 DTC Boulevard Suite 300 Denver, CO 80237 720-445-5655 Email: aleeparrott@gmail.com TERMINATED: 08/24/2020

Maria-Vittoria G. Carminati NDH LLC-Denver 4601 DTC Boulevard Suite 300 Denver, CO 80237 720-445-5655 Email: mvcarminati@ndh-law.com ATTORNEY TO BE NOTICED

V. Defendant

J. Barnhart Warden, in his Official capacity
Defendant Federal Bureau of Prisons
Defendant J. (I) Barnhart In his Individual capacity TERMINATED: 07/16/2020 Movant David Andrew Christenson TERMINATED: 10/20/2020

represented by Lauren Marie Dickey U.S. Attorney's Office-Denver 1801 California Street Suite 1600 Denver, CO 80202 303-454-0188 Email: Lauren.Dickey2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lauren Marie Dickey (See above for address) ATTORNEY TO BE NOTICED
represented by David Andrew Christenson P.O. Box 9063 Miramar Beach, Fl 32550 504-715-3086 PRO SE

Date Filed 03/18/2020
03/18/2020

# Docket Text

COMPLAINT for Declarative and Injunctive Relief regarding

1

Edward Nellson as an Individual and all similarly situated Persons as

a Class against Warden J. Barnhart, United States Federal Bureau of

Prisons (Filing fee $ 400,Receipt Number 1082-7212369)Attorney

Maria-Vittoria G. Carminati added to party Edward Nellson(pty:pla),

filed by Edward Nellson. (Attachments: # 1 Civil Cover Sheet,

# 2 Summons, # 3 Summons)(Carminati, Maria-Vittoria) (Entered:

03/18/2020)

2 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT

RULES/PROCEDURES:re: 1 Complaint, filed by attorney Maria-Vittoria G. Carminati. DO NOT REFILE THE DOCUMENT. Action to take - counsel must submit a change of contact request through the Attorney Services Portal Account pursuant to D.C.COLO.LAttyR 5(c) and 3.5 of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (rsams, ) (Entered: 03/19/2020)

03/18/2020 03/20/2020
03/20/2020 03/30/2020
03/31/2020 03/31/2020 03/31/2020 03/31/2020 03/31/2020

3 Case assigned to Magistrate Judge Gordon P. Gallagher. Text Only Entry. (rsams, ) (Entered: 03/19/2020)
4 ORDER DRAWING CASE. After review pursuant to D.C.COLO.LCivR 8.1(b), the court has determined that this case does not appear to be appropriate for summary dismissal. Case has been randomly reassigned to Magistrate Judge Nina Y. Wang for all further proceedings. All future pleadings should be designated as 20-cv00756-NYW. By Magistrate Judge Gordon P. Gallagher on 03/20/2020. (rvill, ) (Entered: 03/20/2020)
5 SUMMONS issued by Clerk. (Attachments: # 1 Summons, # 2 Magistrate Judge Consent Form) (rvill, ) (Entered: 03/20/2020)
6 ORDER SETTING SCHEDULING/PLANNING CONFERENCE AND SETTING DEADLINE FOR FILING OF CONSENT/NONCONSENT FORM by Magistrate Judge Nina Y. Wang on 3/30/2020. The court shall hold a scheduling conference on 5/18/2020 02:00 PM in Courtroom A 502 before Magistrate Judge Nina Y. Wang via telephone conference. All participants shall use the following dial-in information: 888-363-4749, Access Code: 5738976. The parties shall submit their proposed scheduling order, including a copy of the proposed scheduling order in Word format sent via email to Wang_Chambers@cod.uscourts.gov, on or before 5/11/2020. The parties shall complete and file the Consent/Nonconsent Form indicating either unanimous consent of the parties or that consent has been declined, on or before 5/04/2020. (bwilk, ) (Entered: 03/30/2020)
7 SUMMONS Returned Executed upon AG William Barr defendant(s) United States Federal Bureau of Prisons served on 3/27/2020, answer due 5/26/2020. (Carminati, Maria-Vittoria) (Entered: 03/31/2020)
8 SUMMONS Returned Executed upon defendant(s) United States Federal Bureau of Prisons served on 3/26/2020, answer due 5/26/2020. (Carminati, Maria-Vittoria) (Entered: 03/31/2020)
9 SUMMONS Returned Executed upon United States Attorney General Process Clerk defendant(s) United States Federal Bureau of Prisons served on 3/27/2020, answer due 5/26/2020. (Carminati, MariaVittoria) (Entered: 03/31/2020)
10 MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 03/31/2020)
11 WAIVER OF SERVICE Returned Executed by Edward Nellson. J. Barnhart waiver sent on 3/31/2020, answer due 6/1/2020; J. (I) Barnhart waiver sent on 3/31/2020, answer due 6/1/2020. (nmarb, ) (Entered: 03/31/2020)

03/31/2020
03/31/2020 04/01/2020 04/06/2020 04/06/2020 04/06/2020 04/09/2020 04/13/2020 04/14/2020

12 MINUTE ORDER by Magistrate Judge Nina Y. Wang on 3/31/20 re: 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Edward Nellson. Pursuant to Local Rule 40.1(c)(2)(a), civil actions in which a motion for injunctive relief is filed shall not be directly assigned to a magistrate judge. THEREFORE, IT IS ORDERED: The Clerk of the Court is DIRECTED to REDRAW this action to a District Judge for further proceedings. (nmarb, ) (Entered: 04/01/2020)
13 CASE REASSIGNED pursuant to 12 Minute Order. This case is randomly reassigned to Chief Judge Philip A. Brimmer. All future pleadings should be designated as 20-cv-00756-PAB. (Text Only Entry) (nmarb, ) (Entered: 04/01/2020)
14 MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/1/2020. Defendants shall respond to that portion of Docket No. 10 consisting of the motion for a temporary restraining order on or before April 6, 2020. Text Only Entry (pabsec2) (Entered: 04/01/2020)
15 Unopposed MOTION for Leave to File Excess Pages by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Attachments: # 1 Proposed Order (PDF Only))(Dickey, Lauren) (Entered: 04/06/2020)
16 ORDER by Chief Judge Philip A. Brimmer on 4/6/2020 re: Motion for Leave to File Excess Pages 15 is GRANTED. Defendant is granted leave to file their response, not to exceed 19 pages, due on April 6, 2020. Text Only Entry(pabsec2) (Entered: 04/06/2020)
17 RESPONSE to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Attachments: # 1 Exhibit Himlie Decl., # 2 Exhibit Trujillo Decl.)(Dickey, Lauren) (Entered: 04/06/2020)
18 MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/9/2020. Plaintiff shall respond to defendants, in particular defendants' exhaustion argument under the PLRA, on or before April 13, 2020. Text Only Entry (pabsec2) (Entered: 04/09/2020)
19 REPLY to Response to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Exhibit 1)(Carminati, Maria-Vittoria) (Entered: 04/13/2020)
20 MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/14/2020. Defendants to file a response by 4/14/2020 at 3:00 p.m. responding to plaintiff's argument that the grievance process would take 90 days and whether inmates at USP Florence are notified of any emergency grievance procedures. Text Only Entry (pabsec2) (Entered: 04/14/2020)

04/14/2020 04/14/2020 04/16/2020
04/16/2020
04/16/2020

21 RESPONSE to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Attachments: # 1 Exhibit)(Dickey, Lauren) (Entered: 04/14/2020)

22 MOTION for Leave to File Surreply to 21 Response to Motion by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Ex 1 - Plaintiff's Surreply)(Carminati, Maria-Vittoria) (Entered: 04/14/2020)

ORDER by Chief Judge Philip A. Brimmer on 4/16/2020, re: 10 the

23

portion of Plaintiffs' Motion for a Temporary Restraining Order and

Preliminary Injunction that requests a temporary restraining order is

DENIED; 22 Plaintiff's Motion for Leave to File Surreply is

GRANTED. Accordingly the Clerks office shall docket Exhibit 1 to

Docket No. 22 as plaintiff's surreply.(sphil, ) (Entered: 04/16/2020)

24 MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/16/2020. Defendants shall respond to the motion for preliminary injunction on or before April 22, 2020. Plaintiff may file a reply on or before April 24, 2020. The Court will set a hearing on the motion for preliminary injunction in a separate order. Text Only Entry (pabsec2) (Entered: 04/16/2020)

25 Plaintiff Surreply to 22 MOTION for Leave to File Surreply to 21 Response to Motion by Plaintiff Edward Nellson. Surreply

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

docketed in this case pursuant to 23 04/16/2020)

Order. (sphil, ) (Entered:

26 MOTION for Discovery for Preliminary Injunction by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 04/17/2020)

27 MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/20/2020. Defendants to file a response re: plaintiff's 26 MOTION for Discovery for Preliminary Injunction by 4/21/2020 at 12:00 p.m. Text Only Entry (pabsec2) (Entered: 04/20/2020)

28 Unopposed MOTION for Leave to Supplement Reply (ECF No. 19) and Surreply (ECF No. 25) by Plaintiff Edward Nellson. (Attachments: # 1 Affidavit)(Carminati, Maria-Vittoria) (Entered: 04/20/2020)

29 ORDER by Chief Judge Philip A. Brimmer on 4/21/2020. Although the motion appears to be prompted by a simple effort to clarify the record, it pertains to a motion that the Court has already ruled on and therefore is irrelevant. As a result, the 28 Motion for Leave to Supplement Reply and Surreply is DENIED. Text Only Entry(pabsec2) (Entered: 04/21/2020)

04/21/2020 04/22/2020 04/23/2020 04/24/2020 04/28/2020 04/28/2020
05/01/2020 05/05/2020 05/05/2020 05/07/2020

30 RESPONSE to 26 MOTION for Discovery for Preliminary Injunction filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 04/21/2020)
31 RESPONSE to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Attachments: # 1 Exhibit Himlie Decl., # 2 Exhibit Supp. Himlie Decl., # 3 Exhibit Second Supp. Trujillo Decl.)(Dickey, Lauren) (Entered: 04/22/2020)
32 Unopposed MOTION for Extension of Time to File Reply to Defendants' Response to Plaintiff's Motion for Preliminary Injunction by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 04/23/2020)
33 ORDER by Chief Judge Philip A. Brimmer on 4/24/2020 re: 32 Motion for Extension of Time to File is GRANTED. Plaintiff's shall reply on or before May 1, 2020. Text Only Entry (pabsec2) (Entered: 04/24/2020)
34 REPLY to Response to 26 MOTION for Discovery for Preliminary Injunction filed by Plaintiff Edward Nellson. (Parrott, Alexandra) (Entered: 04/28/2020)
38 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES: re: 34 Reply to Response to Motion, 35 Reply to Response to Motion, filed by attorney Alexandra Parrott. The s/signature did not match the filers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take - future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry). (sphil, ) (Entered: 05/06/2020)
35 REPLY to Response to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Nellson Declaration, # 2 Exhibit Trevani Declaration, # 3 Exhibit U.S. v. Rabadi Letter)(Parrott, Alexandra) (Entered: 05/01/2020)
36 Unopposed MOTION for Hearing/Conference by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 05/05/2020)
37 RESPONSE to 36 Unopposed MOTION for Hearing/Conference filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 05/05/2020)
39 ORDER by Chief Judge Philip A. Brimmer on 5/7/2020, re: 36 Unopposed Motion for Status Conference is DENIED. ORDERED that, on or before May 11, 2020, plaintiff

05/11/2020 05/12/2020 05/29/2020 05/29/2020 05/31/2020 06/04/2020
06/04/2020

shall indicate when and whether he will properly serve defendants.(sphil, ) (Entered: 05/07/2020)

40 SUMMONS Returned Executed upon US Attorney's Office, Jason Dunn, on behalf of defendant(s) United States Federal Bureau of Prisons served on 5/11/2020, answer due 7/10/2020. (Attachments: # 1 Exhibit 1)(Carminati, Maria-Vittoria) (Entered: 05/11/2020)

41 MINUTE ORDER by Magistrate Judge Nina Y. Wang on 5/12/2020. Given 13 Case Reassigned, the Scheduling Conference set for 5/18/2020 before Magistrate Judge Nina Y. Wang and all associated deadlines are hereby VACATED, to be reset at a later date if appropriate. Text Only Entry (nywlc2, ) (Entered: 05/12/2020)

42 MOTION for Hearing/Conference by Plaintiff Edward Nellson. (Parrott, Alexandra) (Entered: 05/29/2020)

43 MOTION for Leave to Supplement 35 Reply to Response to Motion, by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Candelaria Declaration, # 2 Exhibit Lymon Declaration)(Parrott, Alexandra) (Entered: 05/29/2020)

44 RESPONSE to 42 MOTION for Hearing/Conference filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 05/31/2020)

ORDER by Chief Judge Philip A. Brimmer on 6/4/2020,

45

re: 42 plaintiff's Opposed Motion for Status Conference

is DENIED; 43 plaintiff's Motion for Leave to Supplement Motion

for Preliminary Injunction is GRANTED; 26 plaintiff's Motion for

Limited Discovery is DENIED. ORDERED that the portion of

Plaintiffs' Motion for a Temporary Restraining Order and Preliminary

Injunction [Docket No. 10] that seeks a preliminary injunction

is DENIED.(sphil, ) (Entered: 06/04/2020)

46 ORDER REFERRING CASE to Magistrate Judge Nina Y. Wang for non-dispositive matters. Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to the assigned United States Magistrate Judge to (1) convene a scheduling conference under Fed. R. Civ. P. 16(b) and enter a scheduling order meeting the requirements of D.C.COLO.LCivR 16.2, (2) conduct such status conferences and issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause, (3) hear and determine pretrial matters, including discovery and other non-dispositive motions, and (4) conduct a pretrial conference and enter a pretrial order. Court sponsored alternative dispute resolution is governed by D.C.COLO.LCivR 16.6. On the recommendation or informal request of the magistrate judge or on the request of the parties by motion, this court may direct the parties to engage in an

06/15/2020 06/26/2020 06/29/2020 06/30/2020 07/02/2020 07/06/2020
07/10/2020

early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding, by Chief Judge Philip A. Brimmer on 6/4/2020. Text Only Entry (pabsec2) (Entered: 06/04/2020)
47 ORDER by Magistrate Judge Nina Y. Wang on 6/15/20 Setting Rule 16(b) Scheduling Conference. Proposed Scheduling Order due by 7/7/2020. Telephonic Scheduling Conference set for 7/14/2020 03:30 PM before Magistrate Judge Nina Y. Wang. (nmarb, ) (Entered: 06/16/2020)
48 MOTION to Vacate and Continue Deadline to Respond to Complaint and Related Scheduling Deadlines by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) Modified on 6/29/2020 to edit event type. (sphil, ). (Entered: 06/26/2020)
49 MEMORANDUM regarding 48 MOTION for Order to Vacate and Continue Deadline to Respond to Complaint and Related Scheduling Deadlines filed by United States Federal Bureau of Prisons, J. Barnhart. Motion referred to Magistrate Judge Nina Y. Wang, by Chief Judge Philip A. Brimmer on 6/29/2020. Text Only Entry (pabsec2) (Entered: 06/29/2020)
50 MINUTE ORDER: This matter is before the Court on Defendants' Motion to Vacate the Deadline to Respond to the Current Complaint, the Scheduling Conference, and Related Deadlines 48 . Plaintiff is DIRECTED to file a Response to the Motion on or before Thursday, July 2, 2020. No Reply will be accepted without prior leave or order of the court. By Magistrate Judge Nina Y. Wang on 6/30/2020. Text Only Entry (nywlc1) (Entered: 06/30/2020)
51 RESPONSE to 48 MOTION to Vacate with Brief in Support filed by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Nellson Declaration, # 2 Exhibit Candelaria Declaration, # 3 Exhibit Lymon Declaration, # 4 Exhibit Adams Declaration, # 5 Exhibit Holmes Declaration, # 6 Exhibit Upshaw Declaration)(Carminati, MariaVittoria) (Entered: 07/02/2020)
52 ORDER granting in part and denying in part 48 Motion to Vacate Deadline to Respond to Current Complaint, the Scheduling Conference, and Related Deadlines. The Telephonic Scheduling Conference currently set for July 14, 2020 at 3:30 p.m. is VACATED and RE-SET to July 28, 2020 at 2:00 p.m. All participants shall use the following dial-in information: 888-363-4749, Access Code: 5738976. ORDERED by Magistrate Judge Nina Y. Wang on 7/6/2020.(cthom, ) (Entered: 07/06/2020)
53 Unopposed MOTION for Leave to Amend Complaint by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Amended Complaint, # 2 Exhibit Ex. 1 - Nellson Declaration, # 3 Exhibit Ex. 2 - Candelaria

07/10/2020 07/13/2020
07/16/2020
07/16/2020 07/21/2020 07/27/2020 07/27/2020 07/28/2020

Declaration, # 4 Exhibit Ex. 3 - Lymon Declaration, # 5 Exhibit Ex. 4 - Adams Declaration, # 6 Exhibit Ex.5 - Holmes Declaration, # 7 Exhibit Ex. 6 - Upshaw Declaration, # 8 Exhibit Ex. 7 - BP-10 Response Extension)(Carminati, Maria-Vittoria) (Entered: 07/10/2020)
54 MEMORANDUM regarding 53 Unopposed MOTION for Leave to Amend Complaint filed by Edward Nellson. Motion referred to Magistrate Judge Nina Y. Wang, by Chief Judge Philip A. Brimmer on 7/10/2020. Text Only Entry (pabsec2) (Entered: 07/10/2020)
55 ORDER granting 53 Plaintiff's Unopposed Motion for Leave to Amend Complaint. Plaintiff shall file a clean version of the red-lined Amended Complaint filed at [53-1] on or before 7/17/2020. By Magistrate Judge Nina Y. Wang on 7/13/2020. Text Only Entry (nywlc1) (Entered: 07/13/2020)
56 AMENDED COMPLAINT against J. Barnhart, J. (I) Barnhart, United States Federal Bureau of Prisons, filed by Edward Nellson. (Attachments: # 1 Ex. 1 Nellson Declaration, # 2 Ex. 2 Candelaria Declaration, # 3 Ex. 3 Lymon Declaration, # 4 Ex. 4 Adams Declaration, # 5 Ex. 5 Holmes Declaration, # 6 Ex. 6 Upshaw Declaration, # 7 Ex. 7 BP-10 Response Extension)(Carminati, MariaVittoria) (Entered: 07/16/2020)
Defendant J. (I) Barnhart (In his Individual capacity) terminated pursuant to 56 Amended Complaint. Text Only Entry (sphil, ) (Entered: 07/22/2020)
57 Proposed Scheduling Order by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 07/21/2020)
58 MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies by Defendants J. Barnhart, Federal Bureau of Prisons. (Attachments: # 1 Exhibit Trujillo Decl.)(Dickey, Lauren) (Entered: 07/27/2020)
59 MOTION to Dismiss for Failure to State a Claim by Defendants J. Barnhart, Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 07/27/2020)
60 COURTROOM MINUTES/MINUTE ORDER for Scheduling Conference held on 7/28/2020 before Magistrate Judge Nina Y. Wang. Parties will submit a proposed ESI protocol or a Joint Status Report on or before 8/18/2020. Discovery due 2/26/2021. Dispositive Motions due 3/29/2021. A Final Pretrial Conference is set for 5/18/2021 11:30 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. The parties shall file their proposed pretrial order through CM/ECF and include a courtesy copy of the proposed order in Word format sent by email to Wang_Chambers@cod.uscourts.gov,

07/31/2020 08/17/2020 08/17/2020
08/18/2020 08/21/2020 08/24/2020 08/24/2020
08/24/2020
08/26/2020 08/27/2020

seven days prior to the conference. FTR: NYW-CRD. (bwilk, ) (Entered: 07/29/2020)
61 MOTION to Stay Discovery Pending Resolution of Dispositive Motions by Defendants J. Barnhart, Federal Bureau of Prisons. (Attachments: # 1 Exhibit)(Dickey, Lauren) (Entered: 07/31/2020)
62 RESPONSE to 59 MOTION to Dismiss for Failure to State a Claim filed by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 08/17/2020)
63 RESPONSE to 58 MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies filed by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Nellson Declaration, # 2 Exhibit Nellson Grievance, # 3 Exhibit Candelaria Declaration)(Carminati, MariaVittoria) (Entered: 08/17/2020)
64 Joint STATUS REPORT by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 08/18/2020)
65 RESPONSE to 61 MOTION to Stay Discovery Pending Resolution of Dispositive Motions filed by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 08/21/2020)
66 MOTION to Withdraw as Attorney (Alexandra Parrott) by Plaintiff Edward Nellson. (Parrott, Alexandra) (Entered: 08/24/2020)
67 MEMORANDUM regarding 66 MOTION to Withdraw as Attorney (Alexandra Parrott) filed by Edward Nellson. Motion referred to Magistrate Judge Nina Y. Wang, by Chief Judge Philip A. Brimmer on 8/24/2020. Text Only Entry (pabsec2) (Entered: 08/24/2020)
68 MINUTE ORDER granting 66 Motion to Withdraw. Attorney Alexandra Lee Parrott is granted leave to withdraw from representing Plaintiff and is terminated from this case. Plaintiff shall continue to be represented in this matter by attorneys Mario Bernard Williams and Maria-Vittoria G. Carminati. By Magistrate Judge Nina Y. Wang on 8/24/2020. Text Only Entry (nywlc1) (Entered: 08/24/2020)
69 Unopposed MOTION for Extension of Time to File Response/Reply as to 58 MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies by Defendants J. Barnhart, Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 08/26/2020)
70 ORDER by Chief Judge Philip A. Brimmer on 8/27/2020 re: 69 Motion for Extension of Time to File Response/Reply is GRANTED. Defendants shall file a reply to 58 Motion for Summary Judgment on or before September 2, 2020. Text Only Entry(pabsec2) (Entered: 08/27/2020)

08/31/2020 09/02/2020 09/04/2020 10/20/2020 10/21/2020 10/21/2020 10/22/2020
10/22/2020

71 REPLY to Response to 59 MOTION to Dismiss for Failure to State a Claim filed by Defendants J. Barnhart, Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 08/31/2020)

72 REPLY to Response to 58 MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies filed by Defendants J. Barnhart, Federal Bureau of Prisons. (Attachments: # 1 Exhibit Morales Decl., # 2 Exhibit Kyles Decl., # 3 Exhibit DuBose Decl., # 4 Exhibit Trujillo Supp. Decl.)(Dickey, Lauren) (Entered: 09/02/2020)

73 REPLY to Response to 61 MOTION to Stay Discovery Pending Resolution of Dispositive Motions filed by Defendants J. Barnhart, Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 09/04/2020)

74 MOTION for Leave to File an Amicus Brief to save "The Unabomber" by Movant David Andrew Christenson. (sphil, ) Modified on 10/21/2020 should not have been filed - filer not a party to the case - to term and restrict motion per chambers (angar, ). (Entered: 10/20/2020)

75 Unopposed MOTION for Extension of Time to Complete Discovery by Plaintiff Edward Nellson. (Attachments: # 1 Proposed Order (PDF Only))(Carminati, Maria-Vittoria) (Entered: 10/21/2020)

76 MEMORANDUM regarding 75 Unopposed MOTION for Extension of Time to Complete Discovery filed by Edward Nellson. Motion referred to Magistrate Judge Nina Y. Wang, by Chief Judge Philip A. Brimmer on 10/21/2020. Text Only Entry (pabsec2) (Entered: 10/21/2020)

77 ORDER granting 75 Motion for Extension of Time to File. Designation of Affirmative Experts due 1/19/2021. Designation of Rebuttal Experts due 2/19/2021. 702 Motions due by 3/22/2021. Interrogatories, Requests for Production, and Requests for Admission due 4/12/2021. Discovery due by 5/27/2021. Dispositive Motions due by 6/28/2021. Although the Parties did not seek an extension of the Final Pretrial Conference set for 5/18/2021, granting their requested extensions necessitates rescheduling of that deadline. Accordingly, the Final Pretrial Conference is hereby RESET for 8/25/2021 at 10:00 AM before Magistrate Judge Nina Y. Wang. By Magistrate Judge Nina Y. Wang on 10/22/2020. Text Only Entry(nywlc1, ) (Entered: 10/22/2020)

ORDER. Defendants' Motion for Summary Judgment 58 is

78

GRANTED. Defendants' Motion to Dismiss 59 is DENIED as moot.

Defendants' Motion to Stay Discovery 61 is DENIED as moot.

Plaintiff's claims are DISMISSED without prejudice. This case is

closed, by Chief Judge Philip A. Brimmer on 10/22/20.(sgrim)

(Entered: 10/22/2020)

10/22/2020

79 FINAL JUDGMENT re: 78 Order, by Clerk on 10/22/20. (sgrim, ) (Entered: 10/22/2020)

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 Case 1:20-cv-00756-NYW Document 10 Filed 03/31/20 USDC Colorado Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-NYW EDWARD NELLSON, individually, and a CLASS of similarly-situated persons,
Plaintiffs, v. WARDEN J BARNHART, in his individual and official capacity, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants PLAINTIFFS’ MOTION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION Plaintiff Edward Nellson and the Class he represents are prisoners at USP Florence, CO. The BOP has failed to properly address the COVID-19 pandemic sweeping through the country. Notably, the BOP is not screening inmates or staff members at USP Florence, CO. Without such screening, the BOP is also not testing and certainly not quarantining or isolating prisoners who test positive, or keeping staff members who test positive from each other and from prisoners. The BOP, at USP Florence, CO, is sitting on an infectious powder keg and is doing exactly nothing to prevent it exploding. Mr. Nellson and the Class he represents hereby move for a Temporary Restraining Order to remedy that situation. Pursuant to Fed. R. Civ. P. 65 Mr. Nellson and the Class he represents respectfully ask the Court to order that BOP, at the USP Florence, CO facility: 1) immediately abandon its policy of inaction and begin screening prisoners and staff for symptoms of COVID-19;

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2) immediately begin testing prisoners and staff demonstrating symptoms of COVID19;
3) immediately quarantine all prisoners testing positive for COVID-19; and 4) immediately exclude all BOP staff testing positive for COVID-19 from contact with
BOP prisoners. PROCEDURAL HISTORY
Mr. Nellson filed his Complaint in this case on March 18, 2020. ECF No. 1. The Federal Bureau of Prisons was served on March 26, 2020. ECF No. 8. The United States Attorney General was served both directly and via a Process Clerk on March 27, 2020. ECF Nos. 7 and 9.
STANDARD OF LAW Rule 65 of the Federal Rules of Civil Procedure allows a party to move for injunctive relief in the form of a temporary restraining order (“TRO”). A TRO or preliminary injunction is appropriate where the movant demonstrates that: a) there is a substantial likelihood of success on the merits; b) the TRO or preliminary injunction is necessary to prevent irreparable injury; c) the threatened injury outweighs the harm that the TRO or preliminary injunction would cause to the non-movant; and d) the TRO or preliminary injunction would not be averse to the public interest. McDonnel v. City & County of Denver, 878 F.3d 1247, 1252 (10th Cir. 2018) (citing Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016)). Where, as here, a party seeks one of the three “disfavored” types of preliminary injunctions, “(1) preliminary injunctions that alter
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the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford that movant all the relief that he could recover at the conclusion of a full trial on the merits,” the injunction “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (citation omitted).
While the injunctive relief Plaintiffs seek here admittedly fall into two of the three categories of “disfavored” injunctions, they make a strong showing that they are likely to succeed on the merits of their Eighth Amendment claim, that there is a serious and immediate risk to their health and life absent preliminary relief, that the balance of harms tips overwhelmingly in their favor, and that protecting the constitutional rights of all individuals is in the public interest, thus meeting the standard set forth above.
FACTUAL BACKGROUND A. COVID-19 is identified in Wuhan, China, and begins its spread.
China reported an outbreak of a flu-like illness in the city of Wuhan, in the Hubei province, to the World Health Organization on December 31, 2019. https://www.pharmaceutical-technology.com/news/coronavirus-a-timeline-of-how-thedeadly-outbreak-evolved/ (last accessed on March 15, 2020). This new coronavirus is labelled COVID-19. Id.
Within 11 days the first death was reported in China. Id. The disease was confirmed to have spread to Thailand two days later, on January 13, 2020, and Japan two days after
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that, on January 15, 2020. Id. South Korea and the United States reported their first cases of the virus within the next week. Id.
In response to this international spread, the World Health Organization (“WHO”) declared a health emergency on January 22, 2020. Id.
Over the next week Singapore, Nepal, France, Mexico, Sri Lanka, Germany, the United Arab Emirates, Australia, and Taiwan all report cases of the COVID-19 virus. Id. Additionally, by January 29, 2020, the first cases of community spread of COVID-19, that is spread within a country to individuals who had not visited Wuhan, China, or come into contact with someone who had, were reported in Japan, Taiwan, and Germany. Id.
On January 30, 2020, the United States reported its first case of domestic spread of the coronavirus. Id. The next day, with the death toll confirmed at 213, the WHO declared COVID-19 a global health emergency. Id.
By February 12, 2020, the death toll from COVID-19 has passed 1,100 and the Mobile World Congress was cancelled over fears of the virus. Id. By the next day, the death toll had risen by 254, to 1,369. Id.
On February 27,2020, with the death toll from COVID-19 topping 2,800 and having spread to a dozen other countries, the United States detected the first suspected community spread case within the U.S.
On March 11, 2020, the WHO declared COVID-19 a pandemic. Id. At this time, the death toll has passed 5,800. Id. COVID-19 has spread to 126 countries and Vatican City. https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/ world-map.html (last accessed March 15, 2020).
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B. COVID-19 spreads throughout the United States Having confirmed the first case of COVID-19 in the United States on January 21,
2020, the virus has spread to 46 states and the District of Columbia, according to the Centers for Disease Control (“CDC”). https://www.cdc.gov/ coronavirus/2019-ncov/casesin-us.html (last accessed on March 15, 2020). An employee of the New York Department of Corrections and an employee of the Washington Department of Corrections have tested positive for COVID-19 on March 15, 2020, and March 12, 2020, respectively.
As of March 13, 2020, the U.S. had reported 1,629 cases of COVID-19 and 41 deaths. Id. Those numbers are rapidly increasing. By March 15, 2020, according to other sources, COVID had reached over 3,000 cases and 57 deaths. https://www.livescience.com/coronavirus-updates-united-states.html (last accessed March 15, 2020).
Nursing homes nationwide, where people live in close quarters daily, have limited visitors and begun testing of residents and workers. https://www.washingtonpost.com/nation/2020/03/12/coronavirus-seattle-nursing-homes/ (last accessed March 15, 2020).
The President declared the COVID-19 spread within the United States a national emergency on March 13, 2020. https://www.whitehouse.gov/ presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-
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disease-covid-19-outbreak/ (last accessed March 15, 2020). This proclamation noted that COVID-19 threatens to strain the U.S. hospital and medical resources. Id.
C. How COVID-19 is spread, its effects and its deadliness COVID-19 is mainly spread person to person, both by being in close contact and
from respiratory droplets spread through coughing and sneezing. https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed on March 15, 2020).
COVID-19 is, however, transmissible by contact with contaminated surfaces as well as by persons who do not show symptoms. Id.
While COVID-19 spread is slower than that of influenza, its reproductive number, that is the number of people infected per infected person, is between 2 and 2.5 times higher than that of the flu. https://www.who.int/docs/default-source/coronaviruse/situationreports/20200306-sitrep-46-covid-19.pdf?sfvrsn=96b04adf_2 (last accessed on March 15, 2020).
One major difference between COVID-19 and influenza is that, while there are some people who can spread the virus 24-48 hours prior to symptom onset, pre-symptom spread is not a primary driver of transmission for COVID-19. Id.
The main symptoms of COVID-19 are fever, cough, and shortness of breath. Id. It can, however, lead to pneumonia, cytokine storm, and multi organ failure leading to death. https://www.aljazeera.com/news/2020/02/infected-coronavirus-200210205212755.html (last accessed March 15, 2020).
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15% of those infected with COVID-19 develop a severe infection, requiring hospitalization and oxygen treatment. https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200306-sitrep-46-covid19.pdf?sfvrsn=96b04adf_2 (last accessed on March 15, 2020).
5% of individuals infected with COVID-19 develop critical infections, requiring ventilation in a hospital. Id.
3-4% of COVID-19 patients die as a result of the infection, which at this time is a rate well in excess of the flu, which has a mortality rate well below 0.1%. Id.
D. Testing is critical for containment of COVID-19. With the heightened infectivity of COVID-19, social distancing, that is keeping a
distance from infected individuals, and medical isolation are critical to prevent the spread of the virus. https://www.cdc.gov/coronavirus/2019-ncov/ cases-updates/summary.html (last accessed March 15, 2020).
Social distancing is not available for prisoners in BOP prisons, including USP Florence. BOP prisons currently house 175,483 prisoners per the BOP. https://www.bop.gov/mobile/about/ population_statistics.jsp (last accessed March 15, 2020). This leaves prisoners like Nellson packed into close quarters, housed with other prisoners, with multiple cells in a single pod, sharing meals multiple times per day.
BOP prisoners, including those as USP Florence, including Plaintiff Nellson, and putative class members, take meals in a communal chow hall, utilize communal showers, have cells with open toilets in them, and have communal recreation areas.
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Without the ability to isolate and engage in social distancing, isolation of prisoners who have COVID-19 from this population prior to passing the infection is critical to controlling the spread of this illness.
Isolating all prisoners with the symptoms of COVID-19, fever, cough, or shortness of breath, and testing for the virus is the only effective means to prevent the spread of COVID-19 in this captive population.
E. COVID-19 arrives in Colorado. On March 10, 2020, Colorado had 33 cases of COVID.
https://www.nbc11news.com/content/news/15-total-cases-of-COVID-19-in-Coloradoone-confirmed-case-in-Gunnison-County--568667371.html (last accessed March 15, 2020).
On March 14, 2020, Colorado Gov. Jared Polis issued the extraordinary executive order requiring all Colorado ski resorts to close.
As of March 15, 2020, there were 131 presumptive positive cases of COVID in Colorado and one confirmed death. https://www.kktv.com/content/news/ BREAKING-568535251.html.
As of March 15, 2020, Colorado had identified COVID-19 cases in seventeen counties, including Denver County and Arapahoe County, both highly populated counties. Colorado has also identified one COVID-19 case in Pueblo County, a county near USP Florence and other BOP prisons.
On March 16, 2020, the Colorado Governor’s Office ordered the closure of all bars, restaurants, theaters, and casinos statewide, for anything other than takeout or delivery.
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https://drive.google.com/file/d/1pXAFPXCTLqBZvTJpuqrH45YeLB_Jc2wP/view (last

accessed March 17, 2020). Even when people come to take out food, they are only allowed

to be on premises five at a time. Id.

As stated above, USP Florence prisoners eat together and continue to serve each

other food, with no testing or monitoring for symptoms. Further, USP Florence prisoners

cannot be “five at a time” in their various living arrangements. Unable to take the

precautionary measures, USP Florence prisoners are sitting ducks in this pandemic, at the

mercy of Defendants’ inaction.

Upon information and belief, the number of COVID-19 infections is expected to

grow exponentially over the next days and weeks, if not months.

F. The CDC and subject-matter experts recognize the risk of the spread of disease, like influenza, within its institutions.

Even with the flu, the CDC had recommended “Rapid Detection of Cases” to be

done via testing of people with influenza-like illnesses to determine what viruses were

circulating

at

the

institution.

https://www.cdc.gov/h1n1flu/

guidance/correctional_facilities.htm (last accessed March 15, 2020).

Prisoner populations are sicker than the general population. A 2018 study in The

Lancet that incarcerated individuals have a higher burden of infectious illnesses such as

HIV, hepatitis B and C, syphilis and tuberculosis than non-incarcerated individuals.

https://www.thelancet.com/journals/lancet/article/ PIIS0140-6736(18)31251-0/fulltext

(last accessed March 15, 2020). Further, incarcerated populations have chronic,

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noninfectious diseases such as COPD, heart failure and kidney disease which also increase the risk for infections such as coronavirus. Id.
There are also clear indications that mortality is higher among the senior population. See e.g. https://www.thelancet.com/journals/lancet/article/ PIIS0140-6736(20)305663/fulltext#seccestitle150 (last accessed March 15, 2020).
6% of the BOP population is aged 60 and above while 19.5% of the BOP prisoner population is aged 51 and above. https://www.bop.gov/about/statistics/ statistics_prisoner_age.jsp (last accessed March 15, 2020).
G. The BOP’s COVID-19 response is inadequate at USP Florence, CO. The BOP, including USP Florence, has made a minimal response to the COVID-19
pandemic. The BOP has suspended social visits, prisoner movement, and legal visits. https://www.bop.gov/coronavirus/covid19_status.jsp (last accessed March 15, 2020. However, upon information and belief, neither BOP nor USP Florence have ordered COVID-19 testing kits. https://abcnews.go.com/US/state-prisons-prepare-coronavirusfederal-prisons-providing-significant/story?id=69433690 (last accessed March 15, 2020).
There is no screening or testing of current prisoners in either USP Florence or BOP custody for COVID-19 and certainly not a systematic manner. Id. Neither BOP or USP Florence are making any effort to screen or test corrections officers, staff, or other individuals who work within these facilities for COVID-19. Id.
Further, upon information and belief, USP Florence prisoners assigned to kitchen and other sanitary-related duties are continuing to perform those duties. They are doing
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this with no systematic screening and no systematic testing to ensure they are not carriers.
Without such screening, the Defendant is knowingly leaving Nellson and all similarly situated prisoners in USP Florence exposed to the spread of a deadly virus that has created a pandemic across the globe.
Further, upon information and belief, certain BOP facilities have no hand sanitizer and no soap for hand washing. https://www.motherjones.com/politics/2020/03/thecoronavirus-is-spreading-and-reportedly-theres-no-soap-at-this-federal-jail-in-brooklyn/ (last accessed March 15, 2020).
ARGUMENT AND AUTHORITIES The government has an affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody. As the Supreme Court has made clear,
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being . . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs – e.g., food, clothing, shelter, medical care, and reasonable safety – it transgresses the substantive limits on state action set by the Eighth Amendment . . . . DeShaney v. Winnebago County Dep’t. Soc. Servs., 489 U.S. 189, 199-200 (1989). Conditions that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition against cruel and unusual punishment, even if that harm has not yet come to pass.
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A. Plaintiffs Have a Substantial Likelihood of Succeeding on the Merits of Their Eighth Amendment Claim. To obtain a preliminary injunction or a temporary restraining order, Plaintiffs must
show that they have a substantial likelihood of succeeding on the merits of their Eighth Amendment claims. McDonnel, 878 F.3d at 1252. In its prohibition of “cruel and unusual punishments,” the Eighth Amendment requires that prison officials provide prisoners with adequate medical care. Farmer v. Brennan, 511 U.S. 831, 832-33 (1994). To establish an Eighth Amendment claim, a plaintiff must satisfy “a two-pronged inquiry, comprised of an objective component and a subjective component.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). The objective component requires a prisoner to demonstrate that he has a “sufficiently serious” medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prisoner satisfies the subjective prong by showing that the defendants “knew of and disregarded an excessive risk to inmate health and safety.” Farmer, 511 U.S. at 834; Perkins v. Kansas Dep’t. of Corr., 165 F.3d 803, 809-10 (10th Cir. 1999).
1. Plaintiffs’ Medical Needs Satisfies the Objective Prong of the Eighth Amendment. A prisoner satisfies the objective prong of an Eighth Amendment claim if he has a
“serious medical need.” Estelle, 429 U.S. at 104. The existence of a medical need may be proven in two ways: the first is by demonstrating that the plaintiff has a serious medical need that “has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000); see also Al-Turki
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v. Robinson, 762 F.3d 1188, 1192-93 (10th Cir. 2014). The second way a plaintiff may
prove the objective prong of an Eighth Amendment claim is by showing that the condition
puts him at substantial risk of serious harm. Helling v. McKinney, 509 U.S. 25, 33 (1993)
(citing Hutto v. Finney, 437 U.S. 678, 682 (1978)); see also Shannon v. Graves, 257 F.3d
1164, 1168 (10th Cir. 2001) (“There is no requirement that an inmate suffer serious medical
problems before the condition is actionable”).
Under this second formulation of the objective prong, “[t]he question is not limited
to whether the inmate’s symptoms render a medical need sufficiently serious, but also
extends to whether the potential harm to the inmate is sufficiently serious.” Mata v. Saiz,
427 F.3d 745, 752 (10th Cir. 2005).
That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is “reasonable safety.” . . . It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet has happened.
Helling, 509 U.S. at 33 (quoting DeShaney, 489 U.S. at 200). The Court in Helling
specifically recognized that the risk of contracting a communicable disease could constitute
such an “unsafe, life-threatening condition”:
In Hutto v. Finney, 437 678, 682 (1978), we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed . . . . Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious,
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communicable disease on the ground that the complaining inmate shows no serious current symptoms.

Id. at 33; see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291 (5th Cir.

1974), which held that prisoners were entitled to relief under the Eighth Amendment when

they showed, inter alia, “the mingling of inmates with serious contagious diseases with

other prison inmates”).

In this case, Plaintiffs are at serious risk of severe illness or death from COVID-19.

Thus, as the Court recognized in Helling and Hutto, the Constitution “require[s] a remedy”

that ensures that protection of Plaintiffs’ safety. Helling, 509 U.S. at 33.

2. Plaintiffs’ Medical Needs Satisfies the Subjective Component of the Eighth Amendment.

Plaintiffs satisfy the subjective prong of their Eighth Amendment claim because the

evidence shows that Defendants (1) know of and (2) are disregarding an excessive risk to

their health and safety. See, e.g., Farmer, 511 U.S. at 834; Perkins, 165 F.3d at 809-10. The

BOP is well aware of the danger COVID-19 presents to prisoners, yet has failed to take

any action to address this.

The BOP has issued statements titled “BOP’s COVID-19 Response.” The BOP

specifically shared guidance that “described best practices,” and “provided inmate and staff

screening

tools.”

https://www.bop.gov/coronavirus/overview.jsp#bop_emergency_response (last accessed

March 20, 2020). The BOP also circulated “guidance” to BOP field sites, stating, “On

March 6, 2020, additional guidance was sent to BOP field sites to assess and review the

BOP's Personal Protective Equipment (PPE) inventory. A national acquisition plan is being

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executed to obtain bulk purchases, stockpile supplies and coordinate distribution.” Based on this, it is unquestionable that BOP is aware of COVID-19’s existence, is aware that is a threat to prisoners and staff members.
Further, the BOP also published the “Federal Bureau of Prisons COVID-19 Action Plan.” https://www.bop.gov/resources/news/20200313_covid-19.jsp (last accessed March 20, 2020). In that Plan, the BOP states it will engage in “[e]nhanced health screening of staff” but only in areas with “sustained community transmission” and at “medical referral centers.” Id. The same Plan states that the BOP is using the following practices:
• All newly-arriving BOP inmates are being screened for COVID-19 exposure risk factors and symptoms. • Asymptomatic inmates with exposure risk factors are quarantined. • Symptomatic inmates with exposure risk factors are isolated and tested for COVID-19 per local health authority protocols. Id. It is therefore evident that BOP is fully aware of the COVID-19 and the importance of knowing whether or not COVID-19 is within its prisoner and staff population. 3. Entering a TRO or Preliminary Injunction is Necessary to Prevent Irreparable Injury To obtain a TRO or preliminary injunction, Plaintiffs must show that they will suffer an irreparable injury absent an injunction. McDonnel, 878 F.3d at 1252. Irreparable harm is often suffered when “the injury can[not] be adequately atoned for in money,” or when “the district court cannot remedy [the injury] following a final determination on the merits.” Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001). Plaintiffs must also show that the serious injury is not mere speculation and “is of
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such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Pinson v. Pacheco, 397 F. App’x. 488, 491-92 (10th Cir. 2010). However, Plaintiffs are not required to demonstrate that the irreparable harm is inevitable, but only that it “is likely in the absence of an injunction.” Winter v. Nat’l Res. Def. Council, 555 U.S. 7, 22 (2008).
Moreover, many courts have routinely recognized that when a constitutional right is deprived, an irreparable harm exists. Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (“When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary”); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (loss of a constitutional right “for even minimal periods of time, unquestionably constitutes irreparable injury”). Although Kikumura involved the deprivation of First Amendment rights, this rule has been applied in the Eighth Amendment context. See Edmisten v. Werholtz, 287 F. App’x. 728, 733 (10th Cir. 2008); see also Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996), abrogated on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997). Under this formulation, Plaintiffs will suffer irreparable injury from the deprivation of their Eighth Amendment rights if preliminary relief is not granted. As discussed above, Defendants’ deliberate indifference in denying them medically necessary treatment continuously violates Plaintiffs’ Eighth Amendment rights, and as such, they have demonstrated the threat of irreparable injury.
4. The Threatened Injury to Plaintiffs Outweighs the Harm to the BOP Though “the Constitution does not mandate comfortable prisons,” Rhodes v.
Chapman, 452 U.S. 337, 348 (1981), the risk of serious illness or death from COVID-19
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significantly exceeds the inherent discomforts of confinement. In normal times, crowding

and close quarters, the sharing of toilets, sinks, and showers, and communal food

preparation and service may be considered uncomfortable. But in light of COVID-19, these

conditions present a deadly threat to Plaintiffs’ lives. The BOP’s “Plan” underscores just

how inadequate the BOP’s approach the COVID-19 epidemic is insufficient.

First, the BOP is not screening staff systematically but only if infections have

reached a certain number in their State. The BOP plan states that staff testing will only be

implemented in “medical referral centers” or in communities “determined by the CDC” as

a

“sustained

community

transmission.”

https://www.bop.gov/resources/news/20200313_covid-19.jsp (last accessed March 20,

2020). This is a wait and see approach which will result in too little, too late. In other words,

the BOP (including USP Florence) will wait until the CDC finds a high enough number of

cases in the state before even implementing testing. Further, “screening” will be merely

“self-reporting and temperature checks” but only for 30 days. Id. Again, this is too little,

too late and endangers prisoners at USP Florence, CO.

Second, the BOP’s Plan for prisoners fails to systematically screen prisoners. Id.

Instead, the BOP is waiting for prisoners to have “risk factors” and “exposure risk factors.”

It is impossible for BOP to know whether prisoners and staff members have, in fact, been

exposed if it is not testing as a matter of course. Further, the BOP’s own plan does not

mention screening through its facilities, including USP Florence, CO. Indeed, the BOP

does not even have a protocol of its own, instead stating that it will isolate and test “per

local health authority protocols.” Considering this, the danger to prisoners is immense.

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As is known by now, social distancing and hygiene measures are Plaintiffs’ only

defense

against

COVID-19.

https://www.cdc.gov/coronavirus/2019-

ncov/downloads/community-mitigation-strategy.pdf (last accessed March 20, 2020). Like

cruise ships and nursing homes, which have been the sites for the most severe outbreaks of

COVID-19, BOP facilities are “congregate environments” where people live, sleep, and

eat in close quarters. Id. Prisons are places where disease control is of utmost importance,

in part because social isolation is simply impossible. See, e.g,

https://www.vox.com/policy-and-politics/2020/3/17/21181515/coronavirus-covid-19-

jails-prisons-mass-incarceration (last accessed March 20, 2020);

https://www.forbes.com/sites/morgansimon/2020/03/17/want-to-slow-covid-19-legalize-

marijuana-and-release-inmates/ (last accessed March 20, 2020).

These conditions pose even greater risk of infectious spread, and as a result,

Plaintiffs face unreasonable harm from COVID-19 when the BOP fails to take any measure

to protect them.

5. Entering a TRO or Preliminary Injunction Promotes the Public Interest

To obtain a preliminary injunction, the movant must demonstrate that “the

injunction is not adverse to the public interest.” McDonnel, 878 F.3d at 1252. Protecting

the constitutional rights of all individuals is in the public interest. Awad v. Ziriax, 670 F.3d

111, 131-32 (10th Cir. 2012) (“[I[t is always in the public interest to prevent the violation

of a party’s constitutional rights.”); Edmisten, 287 F. App’x. at 735 (“[D]efendants have a

constitutional obligation to provide the required . . . care, and compelling defendants to

perform that duty is not contrary to the public interest.”); Summum v. Pleasant Grove City,

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483 F.3d 1044, 1056-57 (10th Cir. 2007), rev’d on other ground, 555 U.S. 460 (2009). As explained above, the BOP is violating Plaintiff’s constitutional rights but subjecting them to an immense risk of medical harm. Protecting the Plaintiffs from COVID-19 protects their constitutional rights and thus promotes the public interest.
CONCLUSION For the foregoing reasons, pursuant to Fed. R. Civ. P. 65 Mr. Nellson and the Class he represents respectfully ask the Court to order that BOP, at the USP Florence, CO facility: 1) immediately abandon its policy of inaction and begin systematically screening prisoners and staff for symptoms of COVID-19; 2) immediately begin testing prisoners and staff exhibiting symptoms of COVID-19; 3) immediately quarantine all prisoners testing positive for COVID-19; and 4) immediately exclude all BOP staff testing positive for COVID-19 from contact with BOP prisoners. on the matters raised in this Motion. Respectfully submitted this 20th day of March 2020,

NDH LLC 4601 DTC Blvd., Suite 300 Denver, CO 80237 720-445-5655 mvcarminati@ndh-law.com
NDH LLC

/s/ MARIA-VITTORIA G. CARMINATI Maria-Vittoria G. Carminati (CO #50579)
/s/ MARIO WILLIAMS Mario B. Williams (GA #235254) Pro Hac Vice

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44 Broad Street NW, Suite 200 Atlanta, GA 30303 404-254-0442 mwilliams@ndh-law.com
NDH LLC 4601 DTC Blvd., Suite 300 Denver, CO 80237 720-445-5655 aparrott@ndh-law.com

/s/ ALEXANDRA PARROTT Alexandra L. Parrott (CO #54188)

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CERTIFICATE OF SERVICE I certify that the foregoing was served on March 31, 2020, in the following manner on the entities and individuals listed below: CMRRR US Attorney General – Civil Process Clerk 555 Fourth Street NW Washington, DC 20530-0001 CMRRR Federal Bureau of Prisons Legal Department 320 First Street NW Washington, DC 20534-0001 CMRRR United States Attorney General William Barr 950 Pennsylvania Avenue NW Washington, DC 20530-0009 CMRRR Warden Barnhart USP Florence – High U.S. Penitentiary PO Box 7500 Florence, CO 81226
/s/ MARIA-VITTORIA G. CARMINATI Maria-Vittoria G. Carminati (CO #50579)
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 Case 1:20-cv-00756-PAB Document 12 Filed 03/31/20 USDC Colorado Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-NYW EDWARD NELLSON, individually and on behalf of all others similarly situated,
Plaintiff, v. WARDEN J. BARNHART, individually and in his official capacity; and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants.
MINUTE ORDER Entered by Magistrate Judge Nina Y. Wang
Upon review of all the documents filed in this case, see [#1 through #10], the court concludes that this matter should be directly assigned to a District Judge pursuant to D.C.COLO.LCivR 40.1. Plaintiff requests injunctive relief in the form of a temporary restraining order and preliminary injunction. See [#10]. Pursuant to Local Rule 40.1(c)(2)(a), civil actions “in which a motion for injunctive relief is filed” shall not be directly assigned to a magistrate judge.
THEREFORE, IT IS ORDERED: (1) The Clerk of the Court is DIRECTED to REDRAW this action to a District
Judge for further proceedings. DATED: March 31, 2020

 
 Case 1:20-cv-00756-PAB Document 17 Filed 04/06/20 USDC Colorado Page 1 of 20
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a Class of similarly-situated persons,
Plaintiff, v. WARDEN J. BARNHART, in his individual and official capacities, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants.
DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Warden J. Barnhart, in his official capacity,1 and the Federal Bureau of Prisons (“BOP”) (collectively, “Defendants”), submit the following response in opposition to Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction.
Plaintiff Edward Nellson, an inmate at the United States Penitentiary in Florence, Colorado (“USP Florence), claims that BOP officials have failed to take adequate measures to protect him against the dangers posed by COVID-19. See generally ECF No. 10. He seeks a Court order directing Defendants to implement four specific measures at USP Florence: (1) “begin screening prisoners and staff for symptoms of COVID-19”; (2) “begin testing prisoners and staff exhibiting symptoms of COVID-19”; (3) “quarantine all prisoners testing positive for COVID-19”; and (4) “exclude all BOP staff testing positive for COVID-19 from
1 This response is made on behalf of Defendant Barnhart in his official capacity because the injunctive relief sought by Plaintiff is not within the authority of Defendant Barnhart in his individual capacity. See, e.g., Matthews v. Wiley, 744 F. Supp. 2d 1159, 1167 (D. Colo. 2010).

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contact with BOP prisoners.” Id. at 19. He claims that by not taking such measures, the BOP is violating the Eighth Amendment. Id. at 1-2, 12-13.
As explained below, USP Florence is taking reasonable measures to address COVID-19, including screening, testing, quarantining, and excluding. It has also taken myriad other steps to prevent the introduction and spread of COVID-19 into the facility. So far, it has been successful: there are currently no cases of COVID-19 among USP Florence inmates or staff. Plaintiff thus cannot show a likelihood of success on the merits of his case under the Eighth Amendment standards. Nor has Plaintiff otherwise shown that the extraordinary remedy of a preliminary injunctive relief is warranted. Plaintiff’s motion should be denied.
FACTUAL BACKGROUND I. The COVID-19 pandemic and the BOP’s response.
The Federal Bureau of Prisons (“BOP”) has been monitoring and tracking the spread of COVID-19, an infectious respiratory virus that has spread rapidly since its first detection in humans, since January 2020 when the first cases of the virus appeared in the United States. See Ex. 1, Declaration of Shari Hemlie ¶ 6.
Recognizing the threat that this virus could pose to its inmate population, the BOP began quickly organizing its national pandemic response into a multiphase “Action Plan,” implementing a variety of protocols in response to the rapidly shifting landscape of this pandemic across the United States.2 See id. ¶¶ 6-7. Among other things, the BOP has, on a nationwide basis: implemented screening requirements for inmates and staff; temporarily
2 These protocols are discussed at length in the accompanying Declaration of Shari Himlie, Exhibit 1.
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suspended social visits, legal visits, inmate transfers, official travel, and contractor access; updated its quarantine and isolation procedures; and instituted a “modified operations” plan, which directs BOP facilities to adjust their daily operations in a manner that permits inmates to engage in physical distancing while in common areas, such as during mealtimes and recreation. See id. ¶¶ 8-15.
On April 1, 2020, the BOP ordered all inmates to remain “secured in their assigned cells” for a period of 14 days (to be reevaluated at the conclusion of that time period), in order to decrease the spread of the virus. Id. ¶ 16. Thus, BOP inmates across the country are currently being confined to their cells for the majority of each day in an aggressive effort to stem the spread of COVID-19 throughout the BOP.3 Id. ¶ 17. II. Steps being taken at USP Florence to prevent COVID-19’s spread.
Plaintiff’s requested injunction focuses on the facility where he is housed: USP Florence, which is part of the Federal Correctional Complex in Florence, Colorado (“FCC Florence”). See ECF No. 10 at 19 (requesting an order directed to “BOP, at the USP Florence, CO facility”). FCC Florence has implemented each of the steps described above in compliance with BOP’s national directives, and has also taken numerous other measures to prevent the introduction and spread of COVID-19 within its facilities. Id. ¶¶ 20, 23. As explained below, those measures include screening, testing, quarantining, and excluding symptomatic individuals from FCC Florence as appropriate.
3 In so doing, the BOP has made every effort to ensure that inmates continue to be permitted limited amounts of time out of their cells each day, in small groups (with physical distancing) and on a rotating basis, so that inmates can access approved programming, showers, email, and phones, in a safe manner. Id. ¶¶ 16-17.
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A. Screening. FCC Florence has implemented extensive measures to screen inmates for COVID-19, both for newly arriving inmates and for its resident inmate population.
New inmate screening. Newly arriving inmates are both screened and quarantined. All incoming FCC Florence inmates (no matter which institution they are designated to on the FCC Complex) are screened by Health Services medical providers in a single, controlled area separate from other complex staff and inmates. Id. ¶¶ 38-39. Inmates are evaluated for any symptoms of illness, as well as for “exposure risk factors” such as recent exposure to known or suspected COVID-19 cases. Id. ¶ 35. Whether or not inmates display symptoms or exposure risk factors, they are automatically quarantined for a period of 14 days to ensure that they do not develop any symptoms consistent with COVID-19, and are only released into the general population at the expiration of those 14 days and upon medical clearance. Id. ¶¶ 36-37. All staff in any such quarantine or isolation units must wear Personal Protective Equipment. Id. ¶ 37.
Existing inmate screening. FCC Florence has put into place screening measures to identify and manage any COVID-19 infections within the complex’s existing inmate population.
First, FCC Florence is screening high-risk individuals. In early March 2020, Health Services undertook an extensive review of all FCC Florence inmate medical records in order to identify any “high-risk” individuals on the complex as defined by the CDC. Id. ¶ 41. Specifically, staff identified (1) all individuals over age 554; and (2) individuals diagnosed with certain medical conditions, such as chronic lung disease, moderate to severe asthma, liver
4 CDC guidance classifies individuals over age 65, rather than 55, to be “high risk.” See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. Nonetheless, Health Services staff determined to search for individuals over the age of 55 in order to take an even more conservative approach to identifying high-risk individuals.
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disease, and diabetes. Id. ¶¶ 41-42. (Plaintiff Edward Nellson is not considered a “high risk” inmate: he is 41 years old and has not been diagnosed with any condition identified by the CDC as placing individuals at higher risk. Id. ¶ 44.) Once these individuals were identified, during the week of March 16, Health Services staff screened each high-risk individual for the same “exposure risk factors” explained above, conducted temperature checks, and provided additional education regarding COVID-19 prevention. Id. ¶ 43.
Second, USP Florence is actively monitoring its general inmate population for illness. Id. ¶ 46. Medical staff are present in all USP Florence housing units at least twice a day, affording inmates further opportunity to report any medical concerns. Id. All inmates have been advised to self-monitor, and to report any symptoms of illness immediately. Id. USP Florence has also implemented enhanced screening measures for inmates with ongoing work details, whose functions have been determined to be “essential” to the institution. Id. ¶ 45. These inmates are screened for symptoms of illness and are required to have their temperatures taken, both before their shifts begin and once again before returning to their housing units. Id.
Finally, once there is a positive case of COVID-19 at FCC Florence, should that occur, all inmates will be screened daily through temperature and symptom checks. Id. ¶ 47.
B. Isolation and quarantine procedures. Any inmate at FCC Florence presenting with symptoms consistent with COVID-19 is immediately evaluated by a medical provider to determine whether testing and/or isolation is appropriate, and whether other measures (such as quarantine) should be implemented for inmates with whom the symptomatic inmate had contact. Id. ¶¶ 48-50. FCC Florence has in place designated quarantine and isolation units for this purpose. See id. ¶¶ 36, 37, 48.
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C. Testing. FCC Florence is conducting testing in accordance with CDC guidelines. The CDC has explained that “[n]ot everyone needs to be tested for COVID-19,” and “decisions about testing are at the discretion of state and local health departments and/or individual clinicians.” See cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html (last visited on Apr. 6, 2020). At FCC Florence, the decision whether to test an inmate for COVID-19 is made by BOP medical providers based on a number of criteria, including but not limited to: (1) the nature and severity of the symptoms; (2) the inmate’s potential exposure to COVID-19; (3) whether the inmate is considered “high-risk,” and (4) whether the inmate is on a work detail, such as food service, that requires the inmate to interact with other inmates or staff. Ex. 1, Hemlie Decl. ¶ 58. Currently, FCC Florence has over 100 COVID-19 testing kits in stock. Id. ¶ 60. It also has the ability to order and quickly receive additional kits from a designated vendor if the need arises. Id.
To date, no staff or inmates at the FCC Florence complex have been diagnosed with COVID-19. Id. ¶ 72. Two FCC Florence inmates have been tested for COVID-19. Id. ¶ 59. One of those tests was negative. The BOP is still awaiting the result of the second test. Id.
D. Screening and excluding staff and visitors. FCC Florence is actively screening all staff members and all other visitors who enter the institution. Upon entry, all staff and visitors must have their temperature taken, disclose any symptoms of illness, and respond to several questions designed to evaluate their risk of exposure. Id. ¶ 52.
The individuals conducting this screening have authority to deny entry to anyone with a temperature above 100.4 degrees Fahrenheit, or who report COVID-19 symptoms or exposure risk factors. Id. ¶ 53. If a staff member is tested for COVID-19, they are not permitted to return
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to work until receiving a negative test result. Id. ¶ 55. E. Additional measures to combat COVID-19. USP Florence has also taken other
measures to prevent the introduction and spread of COVID-19 within the institution. Physical distancing. Currently, all inmates at USP Florence are subject to a “Stay in
Shelter” order that was implemented on April 1, 2020, and will continue for at least a period of 14 days. Id. ¶¶ 16-17. Under this order,5 inmates are confined to their cells for the majority of the day. Id. ¶ 17. Meals are delivered directly to inmates’ cells, as well as certain commissary items. Id. Inmates are permitted to leave their cells in small groups on a rotating basis and at designated times in order to engage in activities such as showers, exercise, phone calls, and email—while maintaining appropriate physical distancing. Id.
FFC Florence staff have also taken steps to promote distancing. The complex has limited its in-person meetings, capped the number of permitted attendees at such meetings, and implemented a video-conferencing system to replace in-person meetings to the extent practicable. Id. ¶ 65. Additionally beginning today, all staff members will be restricted to working only in a single designated institution within the FCC Florence complex. Id. ¶ 69. For example, staff members designated to USP Florence will not be permitted to enter FCI Florence, and vice versa. Id.
Hand-washing. All inmates have access to sinks, water, and soap at all times. Id. ¶ 62. New inmates admitted to any institution at FCC Florence automatically receive soap, and all
5 USP Florence had earlier adopted, on March 13, 2020, a “modified operations” plan that provided for staggered meal and recreation times in order to limit congregate gatherings and permit inmates to maintain distance from one another while outside their cells. Id. ¶¶ 11-12.
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inmates may receive new soap weekly. Id. For inmates without sufficient funds to purchase soap in the commissary, soap is provided at no cost to the inmate. Id.
Cleaning. All common areas in inmate housing units are cleaned daily, and are typically cleaned by inmate orderlies multiple times throughout the day. The orderlies use a designated disinfectant that kills human coronavirus. Id. ¶ 63. USP Florence has also made this disinfectant available to inmates so that they may use it to clean their own cells. Id. Common areas outside inmate living areas, including the USP Florence lobby, bathrooms, cafeteria, etc., are also cleaned with the same disinfectant on a daily basis (often multiple times per day). Id. USP Florence inmates are also able to wash their clothing and linens at least once weekly. Id. ¶ 62.
Staff are also required to disinfect all common equipment, such as keys and radios, upon obtaining these items from the supply room and again upon their return. Id. ¶ 65. Staff also have regular, consistent access to soap and hand sanitizer. Id.
Supplies. Correctional staff have been provided Personal Protective Equipment (“PPE”) to be used in appropriate locations throughout FCC Florence such as quarantined areas, isolation units, and screening sites. Id. ¶ 67. FCC Florence has sufficient PPE on hand, including N-95 respirator masks, surgical masks, and rubber gloves, to meet its current and anticipated needs, as well as the ability to order additional PPE should the need arise. Id. In addition, on April 5, 2020, all inmates and staff were provided protective face masks for daily use. Id. ¶ 68.
Inmate and staff education. From the outset of the COVID-19 pandemic, USP Florence officials have provided regular education to inmates and staff regarding the virus, the BOP’s response, and the measures that they themselves should take to stay healthy, including washing their hands frequently with soap and water, avoiding touching their faces, and practicing physical
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distancing whenever possible. Id. ¶¶ 24-30. LEGAL STANDARD
“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the [movant] is entitled to such relief.’” 6 New Mexico Dep’t of Game & Fish v. United States Dep’t of the Interior, 854 F.3d 1236, 1245–46 (10th Cir. 2017) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). A party seeking a preliminary injunction must establish four elements: “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20.
In this case, Plaintiff must meet an even higher burden because he seeks preliminary injunctive relief that is “specifically disfavored” in the Tenth Circuit. Free the Nipple-Fort Collins v. City of Fort Collins, Colo., 916 F.3d 792, 797 (10th Cir. 2019). “Disfavored preliminary injunctions don’t merely preserve the parties’ relative positions pending trial. Instead, a disfavored injunction may exhibit any of three characteristics: (1) it mandates action (rather than prohibiting it), (2) it changes the status quo, or (3) it grants all the relief that the moving party could expect from a trial win.” Id. Here, Plaintiff acknowledges that the injunction he seeks falls into at least two of the three disfavored categories. ECF No. 10 at 3.
Thus, to obtain this injunction, Plaintiff “faces a heavier burden” on both the “likelihoodof-success-on-the merits and the balance of harms factors.” Free the Nipple, 916 F.3d at 797.
6 “[T]he procedure and standards for issuance of a temporary restraining order mirror those for a preliminary injunction.” Stine v. Wiley, No. 06-cv-02105-WYD-PAC, 2007 WL 201251, at *1 (D. Colo. Jan. 24, 2007).
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Specifically, he “must make a ‘strong showing’ that these [factors] tilt in [his] favor.” Id. (emphasis added). “Any preliminary injunction fitting within one of the disfavored categories must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004).
ARGUMENT I. Plaintiff cannot show a likelihood of success on the merits. Plaintiff has not met his burden to make “a strong showing” that he is substantially likely to succeed on the merits. See Free the Nipple, 916 F.3d at 798.
A. Plaintiff failed to exhaust his administrative remedies. First, Plaintiff is not likely to succeed on the merits because he has failed to exhaust his administrative remedies. To date, Plaintiff has not pursued any administrative remedies relating to his claims in this case. Ex. 2, Declaration of Paula Trujillo, ¶¶ 10-11. As of the time of this filing, the last administrative remedy Plaintiff had filed was in September 2018. Id. ¶ 10. The Prison Litigation Reform Act (“PLRA”) requires that an inmate, before filing suit, exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). The Supreme Court has made clear that the exhaustion requirement applies to all suits regarding prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), and that “unexhausted claims cannot be brought in court,” Jones v. Bock, 549 U.S. 199, 211 (2007). This exhaustion requirement applies when a prisoner seeks injunctive relief. Farmer v. Brennan, 511 U.S. 825, 847 (1994) (in cases seeking injunctive relief to address “current” prison conditions, inmates are not “free to bypass adequate internal prison procedures and bring their health and safety concerns directly to court”). It likewise
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applies to motions for preliminary injunctions. See Thomas v. Carson, 30 F. App’x 770, 771–72 (10th Cir. 2002) (upholding denial of preliminary injunction because inmate failed to exhaust his remedies, and thus was not likely to succeed on the merits of his constitutional claims); see also Hardy v. Shaikh, No. 1:18-cv-1707, 2019 WL 1756535, at *6 (M.D. Pa. Apr. 19, 2019) (“Courts consider the PLRA’s exhaustion requirement under the likelihood of success on the merits prong in analyzing whether to grant a PI or TRO.” (internal quotation marks and citations omitted)); ABA, Inc. v. D.C., 40 F. Supp. 3d 153, 172 (D.D.C. 2014) (“Plaintiffs also cannot demonstrate likelihood of success on the merits because they have not exhausted administrative remedies.”); Snow v. United States, 2014 WL 4384649, at *16 (M.D. Pa. Sept. 4, 2014) (same).
The exhaustion requirement is statutory, and the statute provides no exception for “special circumstances.” See Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016) (holding that the exhaustion requirement “suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances’” and the “mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account”).
In fact, the only exception to the exhaustion requirement is when the administrative remedy process is “unavailable.” See Ross, 136 S. Ct. at 1858. But it is a high burden for an inmate to make this showing. See Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (although defendants bear the initial burden to show a plaintiff’s failure to exhaust, upon making this showing, “the onus falls on the plaintiff to show that remedies were unavailable to him”). 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
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unwilling to provide any relief to aggrieved inmates”; (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.
Here, Plaintiff has presented no evidence—and there is none—that the administrative remedy process was unavailable. Plaintiff has not shown that it is a “dead end” where officials cannot provide relief, that he is unable to “discern or navigate” the administrative remedy process,7 or that prison officials have acted to “thwart” his use of that process.
Instead, the evidence shows that the remedy process was fully available to Plaintiff. As set forth in Exhibit 2, the BOP maintains a four-step administrative remedy program that is accessible to all inmates, including Plaintiff, through which inmates may raise and exhaust grievances. 28 C.F.R. §§ 542.10–542.19; Ex. 2, Trujillo Decl. ¶¶ 4-5 (explaining each level of the administrative review process). Plaintiff did not attempt to avail himself of this process.
Plaintiff’s failure to do so highlights precisely why exhaustion is necessary here. As the Supreme Court has explained, exhaustion under the PLRA serves two primary purposes: (1) it gives the agency an opportunity to investigate and correct its own mistakes before being haled into federal court; and (2) it promotes efficiency, as “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Woodford v. Ngo, 548 U.S. 81, 89 (2006). In this case, the COVID-19 pandemic has
7 The evidence shows that Plaintiff is thoroughly familiar with the administrative remedy process—having filed no fewer than 35 remedies and appeals since 2007—but that he made no attempt to file any administrative remedy relating to the events he complains of here. Ex. 2, Trujillo Decl. ¶¶ 10-11.
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rapidly evolved over the course of just the past few weeks, and the BOP’s response has evolved with it. Most of the allegations in Plaintiff’s motion do not reflect the current conditions at his institution. Compare ECF No. 10 with Factual Background, above. Had Plaintiff raised his concerns directly with the institution, the BOP could have corrected Plaintiff’s mistaken impressions regarding the actions USP Florence is taking to address COVID-19, and this litigation may have been avoided. The rapidly changing nature of this pandemic thus favors adherence to the administrative framework.
B. Plaintiff is not likely to succeed on his Eighth Amendment claim.8 Plaintiff claims that deficiencies in USP Florence’s COVID-19 response subject him to unconstitutional conditions of confinement in violation of the Eighth Amendment. See ECF Nos. 1 & 10. To prevail on an Eighth Amendment “conditions of confinement” claim, Plaintiff must show that prison officials (1) deprived him of the minimal measure of life’s necessities, such as inmate health or safety (the objective prong), and (2) did so with “deliberate indifference” (the subjective prong). Farmer, 511 U.S. at 834. Plaintiff can show neither.
8 In its analysis, the Court should accord significantly greater weight to Defendants’ submissions (sworn affidavits of BOP officials and official documents) than to Plaintiff’s unsubstantiated allegations, many of which rely on “information and belief” or weeks-old news articles discussing institutions other than USP Florence. See ECF No. 10 at 10-11. Although courts have discretion to consider certain inadmissible evidence, such as hearsay, in evaluating preliminary injunction motions, courts can—and should—view this evidence as less reliable when weighed against other specific, authenticated evidence in the record. See, e.g., Pharmanex, Inc. v. HPF, 221 F.3d 1352 (table), 2000 WL 703164, at *3 (10th Cir. 2000) (in the context of preliminary injunctions, courts may give less weight to affidavits based on hearsay or “information and belief”); Biomin America Inc. v. Lesafre Yeast Corp., 2020 WL 1503475, at *7 (D. Kan. Mar. 30, 2020) (same).
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1. Plaintiff is not being subjected to an unreasonable risk of harm. The “objective prong” of the Eighth Amendment requires a showing that an inmate has been deprived “of the minimal civilized measure of life’s necessities.’” Farmer, 511 at 834. When this deprivation involves a risk of harm, this prong requires the inmate to show that “society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Plaintiff cannot show that the BOP is depriving him of the “minimal civilized measure of life’s necessities” or “violating contemporary standards of decency” in addressing the risk of harm to inmates that COVID-19 presents. “A prison official’s duty under the Eighth Amendment is to ensure reasonable safety.” Farmer, 511 U.S. at 844 (emphasis added). The current state of the COVID-19 pandemic exposes everyone—prisoner and non-prisoner alike—to the risk of falling ill. USP Florence’s response is aligned with official guidance from leading world health authorities for mitigating the risks associated with the pandemic. See Ex. 1, Himlie Decl. ¶ 7 (explaining that the BOP’s preventative measures have been designed in coordination with, and in reliance on, guidance from the World Health Organization and the CDC, among others). USP Florence has implemented the same risk-reduction practices among the inmates and staff that are recommended for the community at-large: physical distancing, limited movement, screening mechanisms, providing soap for hand washing, frequently disinfecting common, high-touch areas, and quarantining or isolating individuals as appropriate. See generally Factual Background, above. These practices are the same measures that society deems capable of
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reducing the risk of COVID-19 transmission, and thus reflect the manner in which “today’s society chooses to tolerate” that risk. Helling, 509 U.S. at 36.
Notably, Plaintiff has not shown that the risk posed by USP Florence’s practices raises his risk of exposure substantially over the risk experienced by the outside community. See Hines v. Youssef, No. 13-cv-00357-AWI-JL, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015) (“Unless there is something about a prisoner’s conditions of confinement that raises the risk of exposure substantially above the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is involuntarily exposed to a risk the society would not tolerate.”). In fact, despite the fact that Colorado has been designated a “sustained community transmission” state since March 19, 2020, there are currently no instances of staff or inmates being diagnosed with COVID-19 at FCC Florence.
While it is impossible to eliminate all risk factors for transmission of COVID-19, the facts Defendants have presented here make clear that any risks faced by those inside USP Florence are comparable to the general risks faced by everyone. Plaintiff thus has not met his burden to show that the BOP has placed him in conditions of confinement subjecting him to an objectively “unreasonable risk” of harm under the Eighth Amendment. Helling, 509 U.S. at 36.
2. Plaintiff has not shown the BOP is acting with deliberate indifference. Plaintiff has also failed to satisfy the subjective prong of his Eighth Amendment claim, which requires him to show that Defendants “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837). This test is subjective, meaning “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must
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also draw the inference.” Farmer, 511 U.S. at 837. To establish an entitlement to injunctive relief, Plaintiff must show that BOP officials
currently are acting with deliberate indifference. Where a prisoner “seeks injunctive relief to prevent a substantial risk of serious injury from ripening into actual harm, the subjective factor … should be determined in light of the prison authorities’ current attitudes and conduct[.]” Farmer, 511 U.S. at 845 (internal quotation marks omitted). Thus, Plaintiff must show that today, Defendants are recklessly disregarding an excessive risk to Plaintiff’s safety, and that they will continue to do so “into the future.” Id.
Plaintiff cannot make this showing. BOP officials have not acted with deliberate indifference to the risk that COVID-19 poses to inmate populations; rather, they have taken aggressive and appropriate measures to abate that risk. The record shows that the BOP responded quickly to the evolving pandemic, designed a series of measures to combat the disease, and continue to closely monitor the spread of the virus in order to adjust to changing circumstances as the situation evolves. See generally Ex. 1. In coordinating their response, BOP officials have relied on guidance provided by leading health authorities regarding sanitation, physical distancing, testing, and other preventative measures, and have taken actions consistent with those guidelines. Id. ¶¶ 7, 9-10, 15, 25, 35, 41, 56-57, & 73. These steps, in the face of this global pandemic, demonstrate an extremely high degree of care. Plaintiff thus cannot show that BOP officials are acting with deliberate indifference, and cannot succeed on his Eighth Amendment claim. See Farmer, 511 U.S. at 844-45 (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. . . . “[P]rison officials who act reasonably
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cannot be found liable under the Cruel and Unusual Punishments Clause.”). II. Plaintiff fails to show that he will suffer irreparable harm.
Plaintiff’s motion also fails because he does not make an adequate showing of irreparable harm. “To constitute irreparable harm, an injury must be certain, great, actual and not theoretical.” Schrier v. Univ. Of Colo., 427 F.3d 1253, 1267 (10th Cir. 2005). “The party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Id.
Plaintiff has not shown that, absent an injunction, he will suffer irreparable harm. First, Defendants are already employing the types of measures Plaintiff seeks in his motion. He asks the Court to order Defendants to “begin screening prisoners and staff for symptoms of COVID19.” ECF No. 10 at 1. They are already doing so. Ex. 1, Himlie Decl. ¶¶ 32-50. He asks the Court to direct Defendants to “immediately begin testing prisoners and staff demonstrating symptoms of COVID-19.” ECF No. 10 at 2. Defendants are testing symptomatic prisoners in accordance with current CDC protocols. Ex.1, Himlie Decl. ¶¶ 56-58. Finally, Plaintiff asks the Court to order Defendants to “quarantine all prisoners testing positive for COVID-19,” and “immediately exclude all BOP staff testing positive for COVID-19 from contact with BOP prisoners.” ECF No. 10 at 2. These measures are already in place. Ex. 1, Himlie Decl. ¶¶ 23, 37, 48-49. These steps have—to date—been successful at preventing the introduction of COVID into the facility. Plaintiff thus has not demonstrated how entering his requested injunction would provide any additional protection against COVID-19, much less that he would suffer irreparable injury without such an injunction.
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IV. The balance of the equities and the public interest support Defendants. Even if Plaintiff could show a likelihood of success on the merits and that irreparable
harm would result without preliminary injunctive relief, he cannot prevail unless he shows that the balance of equities tips in his favor and that an injunction is in the public interest. See Winter, 555 U.S. at 20. Because Plaintiff is seeking a disfavored injunction, he must make a “strong showing” that these factors “tilt in [his] favor.” Free the Nipple, 916 F.3d at 797.
Neither the equities nor the public interest weigh in Plaintiff’s favor. Indeed, because USP Florence has already taken the various measures that Plaintiff demands, he has little to no interest in obtaining the requested injunction. Defendants, by contrast, have a significant interest in maintaining the flexibility that this pandemic demands. “[R]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources,” and “courts are ill equipped to deal with the increasingly urgent problems of prison administration.” Turner v. Safley, 482 U.S. 78, 84 (1987). And Congress has required courts to consider numerous factors, including the “impact on public safety,” before granting preliminary injunctive relief to a prisoner. 18 U.S.C. § 3626(a)(2). Here, the BOP has marshalled both its administrative expertise in running prisons and the guidance of health experts to design a pandemic response that combats the spread of the virus, and takes into account critical security and administrative factors that are inseparable from the prison environment. The BOP is best able to adapt to and address the evolving challenges presented by this pandemic.
CONCLUSION For the foregoing reasons, Defendants respectfully request that Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 10, be denied.
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Respectfully submitted this 6th day of April, 2020. JASON R. DUNN United States Attorney s/ Lauren M. Dickey Lauren M. Dickey Assistant United States Attorney 1801 California St., Ste 1600 Denver, Colorado 80202 Telephone: (303) 454-0100 Email: lauren.dickey2@usdoj.gov Attorney for Defendants
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on April 6, 2020, I electronically filed the foregoing with the Clerk of Court using the ECF system, which will provide notice to the following parties:
Mario Bernard Williams NDH LLC 44 Broad Street NW Suite 200 Atlanta, GA 30303 404-254-0442 Fax: 404-935-9391 Email: mwilliams@ndh-law.com
Alexandra Lee Parrott NDH LLC-Denver 4601 DTC Boulevard Suite 300 Denver, CO 80237 720-445-5655 Email: aparrott@ndh-law.com
Maria-Vittoria G. Carminati NDH LLC-Denver 4601 DTC Boulevard Suite 300 Denver, CO 80237 720-445-5655 Email: mvcarminati@ndh-law.com
s/ Lauren M. Dickey Lauren M. Dickey United States Attorney’s Office
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Exhibit 1
Declaration of Shari Himlie

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a Class of similarly-situated persons,
Plaintiff, v. WARDEN J. BARNHART, in his individual and official capacities, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants.
DECLARATION OF SHARI HIMLIE
I, Shari Himlie, pursuant to 28 U.S.C. § 1746, and based upon my personal knowledge and information made known to me from official records reasonably relied upon by me in the course of my employment, hereby declare as follows relating to the above-titled matter. All attachments to this declaration are true and accurate copies of Federal Bureau of Prisons records maintained in the ordinary course of business.
1. I am the Complex Health Services Administrator (HSA) with the Federal Bureau of Prisons (Bureau) at the Federal Correctional Complex (FCC) in Florence, Colorado. FCC Florence includes four separate institutions: the Federal Prison Camp (minimum security), the Federal Correctional Institution (FCI) (medium security), the United States Penitentiary – High Security (USP), and the United States Penitentiary – Administrative Maximum (ADX) in Florence, Colorado. As the FCC Florence HSA, I oversee the health services operations for all of these institutions. I am also a Registered Nurse and a Certified Corrections Nurse/Manager.
2. I have been employed by the Bureau, in positions of increasing responsibility, since November 2008. I have been the FCC Florence HSA since March 2018.

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3. As part of my official duties as the FCC Florence HSA, in collaboration with the Clinical Director, I manage and direct the activities of a multi-disciplinary team responsible for providing medical, dental, and allied health services (pharmacy, laboratory, and radiology) to the inmate population. I am also the primary supervisor for mid-level providers, emergency medical technicians, and nurses. I also provide administrative oversight to all contract physicians at FCC Florence.
4. With respect to COVID-19, specifically, I am involved on a daily basis in the identification, planning, and implementation of all Bureau directives for preventing the spread of COVID-19 at FCC Florence, including USP Florence. In addition to my normal role as FCC Florence HSA, I also serve as the Logistics Section Chief for the “FCC Florence Command Center” (discussed in further detail below), which is responsible for coordinating FCC Florence’s COVID-19 response. Through this role, I have knowledge of both the Bureau’s national directives relating to COVID-19 and the additional steps that FCC Florence, specifically, has taken to combat COVID-19 within the complex. 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 FCC Florence in order to prevent and manage the spread of COVID-19. I. NATIONAL STEPS TAKEN BY BUREAU TO ADDRESS COVID-191
5. Before discussing the steps being taken at FCC Florence, specifically, I will first discuss the phases of the BOP’s national response to the COVID-19 pandemic, which apply
1 As illustrated below, the Bureau’s national guidance has undergone a number of changes in response to the evolving threat. The Bureau has established a COVID-19 resource section on its public webpage which is available at: https://www.bop.gov/coronavirus/. This webpage includes updates on the Bureau’s response to COVID-19 and positive COVID-19 tests among inmates and staff at Bureau institutions nationwide.
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generally across all BOP institutions. As set forth below, the Bureau has taken—and is continuing to take—significant measures in response to the COVID-19 pandemic in order to protect the safety and security of all staff and inmates, as well as members of the public.
6. In January 2020, the Bureau became aware of the first identified COVID-19 cases in the United States and quickly took steps to prevent its introduction and spread in Bureau institutions. The Bureau’s response, detailed below, has occurred over five distinct “phases” to date. The Bureau will continue to modify and adjust its response as circumstances change, and at the guidance and direction of worldwide health authorities.
A. Action Plan for COVID-19 – Phase One 7. In January 2020, the Bureau began Phase One of its Action Plan for COVID-19. Phase One activities included, among other things, seeking guidance from the BOP’s Health Services Division regarding the COVID-19 disease and its symptoms, where in the United States infections were occurring, and the best practices to mitigate its transmission. See https://www.bop.gov/resources/news/20200313_covid-19.jsp. In addition, an agency task force was established to begin strategic planning for COVID-19 Bureau-wide. This strategic planning included building on the Bureau’s existing procedures for pandemics, such as implementing its pre-approved Pandemic Influenza Plan. From January 2020 through the present, the Bureau has been coordinating its COVID-19 efforts with subject-matter 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.
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B. Action Plan for COVID-19 – Phase Two 8. On March 13, 2020, the Bureau implemented “Phase Two” of its Action Plan. Phase Two put into place a number of restrictions across all Bureau facilities over a 30-day period, to be reevaluated upon the conclusion of that time period. Specifically, the Bureau suspended the following activities for a period of 30 days, with certain limited exceptions2: A. Social visits;3 B. Legal visits; C. Inmate facility transfers; D. Official staff travel; E. Staff training; F. Contractor access; G. Volunteer visits; and H. Tours. 9. In addition, during Phase Two, inmates were subjected to new screening requirements. Specifically, all newly arriving BOP inmates were screened for COVID-19 symptoms and “exposure risk factors,” including, for example, if the inmate had traveled from or through any high-risk COVID-19 locations (as determined by the CDC), or had had close contact with anyone testing positive for COVID-19. Asymptomatic inmates with exposure risk factors were quarantined, and symptomatic inmates with exposure risk factors were isolated and evaluated for possible COVID-19 testing by local Bureau medical providers.4
2 The exceptions are detailed at https://www.bop.gov/coronavirus/covid19_status.jsp. 3 To help ensure that inmates maintained social ties during this time, the BOP increased inmates’ telephone allotment to 500 minutes per month (from 300 minutes per month). 4 Throughout this declaration, “isolation” refers to a symptomatic inmate being confined to a single cell within a designated housing unit or medical unit. “Quarantine,” on the other hand,
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10. Staff were also subjected to enhanced health screening in areas of “sustained community transmission,” as determined by the CDC, and at medical referral centers. Colorado was designated a “sustained community transmission” state on March 19, 2020, and FCC Florence implemented this enhanced screening for staff and contractors at that time. The enhanced screening measures required all staff to self-report any symptoms consistent with COVID-19, as well as any known or suspected COVID-19 exposure, and further required all staff to have their temperature taken upon entry into any Bureau facility.
11. 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 times and staggered recreation times, for example, in order to limit congregate gatherings. Additionally, the Bureau established a set of quarantine and isolation procedures for known or potential cases of COVID-19.
12. USP Florence implemented this “modified operations” directive in a number of ways. For example, and among other things, USP Florence: (1) instituted “grab and go” breakfasts and dinners for inmates, meaning that inmates were permitted to pick up pre-packaged breakfasts and dinners at designated times, but had to return to their housing units in order to eat; (2) scheduled staggered lunchtimes, so that only a single housing unit could eat inside the cafeteria at any particular time; and (3) limited the number of inmates who could participate in recreation at one time so that each inmate could practice appropriate social distancing during recreation.
refers to asymptomatic inmates who may remain within their assigned housing units, together, but may not interact with staff or inmates outside of these housing units.
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C. Action Plan for COVID-19 – Phase Three 13. On March 18, 2020, the Bureau implemented Phase Three of the COVID-19 Action Plan for Bureau locations that 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. 14. Additionally, as part of this phase, and in accordance with the Pandemic Influenza contingency plan, all cleaning, sanitation, and medical supplies were inventoried. See https://www.bop.gov/resources/news/pdfs/20200324_bop_press_release_covid19_update.pdf. D. Action Plan for COVID-19 – Phase Four 15. On March 26, 2020, the Bureau implemented Phase Four of its Action Plan. In Phase Four, the Bureau revised its preventative measures for all institutions. Specifically, the agency updated its quarantine and isolation procedures to require all newly admitted inmates to the Bureau, whether in areas of sustained community transmission or not, to be assessed using a screening tool and temperature check (further explained below). This screening tool and temperature check applied to all new intakes, detainees, commitments, prisoners returned on writ from judicial proceedings, and parole violators, regardless of their method of arrival. Thus, all new arrivals to any Bureau institution—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. E. Action Plan for COVID-19 – Phase Five 16. On March 31, 2020, the Director of the Bureau ordered the implementation of
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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.5
B. During this time, to the extent practicable, inmates should still have access to programs and services that are offered under normal operating procedures, such as mental health treatment and education.
C. In addition, the 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 reevaluated and a decision made as to whether or not to return to modified operations.
E. Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and Trust Fund Limited Computer System (TRULINCS6) access.
See https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp.7 17. Phase Five has been implemented at USP Florence and currently remains in
effect. This means that, for a 14-day period beginning April 1, 2020 (to be reevaluated at the end
of the 14 days), all inmates at USP Florence are confined to their cells for the majority of the
day. Meals are delivered directly to inmates’ cells, as well as a limited number of commissary
items. Inmates are permitted to leave their cells in small groups on a rotating basis at designated
times in order to engage in activities such as showers, exercise, phones, and TRULINCS.
5 This modification to the Bureau’s action plan is based on health concerns, not disruptive inmate behavior. 6 TRULINCS is the internal Bureau computer and electronic message platform that inmates use to communicate with staff in the institutions and individuals in the community. Through this platform, inmates receive updates, notices, and can read inmate bulletins posted on the system by Bureau staff. 7 Additional information regarding Phase 5 of the Bureau’s Action Plan is available on the Bureau’s webpage (www.bop.gov).
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Inmates may be outside their cells in these small groups for approximately 2.5-3 hours per day, depending on the day of the week. During these time periods, inmates have been directed to maintain appropriate physical distancing. See, e.g., Att. A, FLP Movement Schedule.
F. Incident Command System 18. In addition to the above phases of the BOP’s official Action Plan, on March 11, 2020, the Bureau activated its “Incident Command System,” commonly referred to as a Command Center, at Central Office in Washington, D.C., in response to the COVID-19 pandemic. The Incident Command System is a standardized, all-hazard incident management tool. The Bureau has used the Incident Command System in the past to address a number of other disruptive incidents, such as fires, human and animal disease outbreaks, and hazardous materials incidents. The Incident Command System is structured in a manner that is intended to match the severity and complexity of the disruption for which it is activated. 19. Through the Incident Command System, the Bureau’s National Command Center, in conjunction with local command centers (to be discussed more below), works to mitigate the health and safety risks of the COVID-19 pandemic incident by providing accurate information to all Bureau institutions, holding Bureau institutions accountable for abiding by Bureau directives and guidance, and coordinating the Bureau’s national response. II. STEPS TAKEN AT FCC FLORENCE TO ADDRESS COVID-19 20. In addition to the steps taken at the national level, FCC Florence itself has also taken a number of additional measures in response to the COVID-19 pandemic. Throughout this section, when I refer to “FCC Florence” generally, I am referring to measures being taken at each of the FCC Florence institutions, including USP Florence. When I refer to USP Florence specifically, I am speaking only about that institution.
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A. FCC Florence Command Center 21. On March 13, 2020, FCC Florence activated its local Command Center at both ADX Florence and USP Florence. The local Command Centers work together and, in conjunction with the National Command Center, monitor, plan, and implement national directives and other procedures at FCC Florence. The FCC Florence Command Center is currently scheduled to remain active until May 13, 2020. That date may be extended, as needed. 22. As noted above, I serve on the FCC Florence Command Center as the Logistics Section Chief. In this role, I order, account for, and distribute critical medical supplies, oversee management of infectious disease control onsite, and coordinate the Complex’s enhanced staff and inmate screening. I also provide ongoing education to staff and inmates regarding steps that should be taken to prevent the introduction and spread of COVID-19 into FCC Florence. 23. FFC Florence has taken myriad steps to prevent the introduction and spread of COVID-19 into its facilities, including providing inmate and staff education; conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures; ordering necessary cleaning, testing, and medical supplies; engaging in enhanced cleaning and disinfecting measures; and taking a number of other preventative measures. I will discuss each in turn, below. B. Inmate and Staff Education relating to COVID-19 24. From the outset of the COVID-19 pandemic, FCC Florence 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. 25. For example, medical providers have conducted several town hall meetings with FCC Florence inmates advising them of the symptoms of COVID-19, instructing them to self-
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monitor for COVID-19 symptoms, and to immediately report such symptoms to sick call. See, e.g., Att. B, Inmate Town Hall Information (Mar. 10, 2020) (advising inmates as to the number of cases identified (through March 6, 2020), how COVID-19 spreads, symptoms of COVID-19, information to aid in slowing the spread of COVID-19, and treatment options for COVID-19). FCC Florence officials have also explained to both inmates and staff members best practices regarding personal hygiene to prevent the spread of COVID-19. Information sheets are posted in numerous locations around FCC Florence, including inmate housing units, the front lobby, on restroom doors, and within all departments. See Att. C, CDC COVID-19 Stop the Spread of Germs Factsheet.
26. Inmates have also been notified of this same information via information bulletins posted on TRULINCS in both English and Spanish. Executive staff members (department heads, Associate Wardens, and Wardens) also conduct weekly rounds in the housing units, and are available to answer questions from inmates regarding personal hygiene practices.
27. Recently, on April 1, 2020,8 Warden True issued an inmate bulletin to all inmates at FCC Florence regarding the new steps being taken at the institution to implement Phase Five of the Bureau’s Action Plan described above. See Att. E, Inmate Town Hall Bulletin (Apr. 1, 2020). In the bulletin, Warden True explained: “In response to COVID-19, the [Bureau] has instituted a comprehensive action plan that includes screening, testing, appropriate treatment, prevention, education, and infection control measures.” Id. at 1. The Warden advised the inmates
8 Incidentally, as a result of “numerous inmates [being] observed squaring off with one another during a heated argument” on March 26, 2020, at USP Florence, that institution was placed on lockdown on March 27, 2020. See Att. D, Lock Down Update (Mar. 27, 2020). While this decision was related to security measures, as opposed to COVID-19, it effectively placed USP Florence in a “Stay in Shelter” environment until March 30, 2020, even before Phase Five was formally implemented on April 1, 2020.
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that, beginning April 1, 2020, FFC Florence would be implementing a “Stay in Shelter” for 14 days.
28. The April 1, 2020, memo also asked inmates to “continue to increase [their] sanitation and hygiene efforts in the housing units and in [their] cells,” and advised inmates that staff have “increased the sanitation efforts throughout the institution.” Id. at 1-2.9 Likewise, the memo advised inmates that they “are encouraged to avoid touching [their] faces,” “wash [their] hands frequently with soap and water,” and “[p]ractice social distancing whenever practical.” Id.
29. Finally, Warden True informed inmates and staff that “[t]here are currently zero inmates that have been identified as having COVID-19 at FCC Florence. The institution modified operations and ‘Stay in Shelter’ is an effort to be proactive.” Id.
30. In addition to providing education to inmates, FCC Florence staff have been similarly educated regarding the importance of washing their hands, not touching their face, maintaining appropriate social distancing, and cleaning/disinfecting all equipment, including their uniforms.
31. Medical staff have also been trained regarding how to appropriately don and remove Personal Protective Equipment (PPE). This same training will be provided to Lieutenants this coming week, and potentially to other staff members in the weeks to come.
C. Screening for COVID-19 at FCC Florence 32. Due to the “Stay in Shelter” order implemented on April 1, 2020, inmate movement at FCC Florence is currently highly restricted. However, the following screening measures for both inmates and staff are currently in place, and will remain in effect even after the “Stay in Shelter” order is lifted, until Bureau officials determine that they are no longer
9 I will address these cleaning and sanitation efforts in greater detail below. 11

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necessary to prevent and/or manage the introduction or spread of COVID-19 in FCC Florence. 1. Inmates
33. As explained above, FCC Florence has been screening inmates for COVID-19 since early March 2020.
34. First, FCC Florence screens all inmates arriving at FCC Florence from other institutions or locations immediately upon their arrival. These screening procedures are as follows.
35. Inmates are screened for symptoms of COVID-19 (including fever, cough, and shortness of breath), as well as for “exposure risk factors,” including whether the inmate has traveled from, or through, any locations identified by the CDC as increasing epidemiologic risk within the past 14 days, or has had close contact with anyone diagnosed with COVID-19 in the past 14 days. See Att. F, Coronavirus Disease 2019 (COVID-19) Inmate Screening Tool. 35.
36. Following this initial screening, inmates are escorted to an intake/quarantine unit at FCI Florence (Pueblo Alpha Unit), where they are automatically quarantined for 14 days to ensure that they do not develop any symptoms consistent with COVID-19.
37. After the expiration of 14 days, and upon medical clearance, inmates may be released into general population at their designated institutions. Pueblo Bravo Unit at FCI Florence has been designated as an isolation unit for any inmates that are symptomatic of suspected COVID-19 and/or have tested positive for COVID-19. In these quarantine and isolation units, all staff must wear PPE.
38. These screening procedures apply to all incoming FCC Florence inmates, no matter which of the four institutions they are designated to be housed, and these inmates are initially screened at FCI Florence as opposed to their designated institutions. When inmates
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arrive at the institution, they are met by Health Services medical providers, who conduct this initial screening in a designated area at FCI Florence separate from other staff and inmates. Health Services medical providers wear PPE during these interactions.
39. This initial screening procedure at FCI Florence allows for screening to occur in a controlled environment, and further ensures that the rest of the inmate population is not exposed to newly-arrived inmates until they are properly screened and cleared by Health Services Department medical providers.
40. Second, in addition to screening incoming inmates, FCC Florence is also taking a number of measures to screen its current resident inmate population.
41. At risk Individuals. As the FCC Florence HSA and Logistics Section Chief, I was responsible for reviewing, in conjunction with a small team of medical providers, inmate medical records in order to determine which individuals at FCC Florence are considered “high risk” for COVID-19 pursuant to CDC guidelines. These guidelines can be found at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. Per CDC guidance, “high-risk” individuals include those over 65 and those with significant underlying medical conditions, such as chronic lung disease, moderate to severe asthma, liver disease, and diabetes. See id.
42. In order to identify which inmates at FCC Florence should be considered “high risk,” my team searched the Bureau’s medical records for (1) all inmates aged 55 and over10; and (2) all inmates who have been diagnosed with a condition identified by the CDC as being “high risk.”
10 We chose to search for inmates 55 and over, rather than 65 and older, in an abundance of caution and to be conservative in our approach to assessing risk.
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43. Based on this search, we compiled a list of individuals at FCC Florence considered to be “high risk” based on these established CDC criteria. During the week of March 16 through March 20, 2020, we screened each of these high-risk individuals for the same “exposure risk factors” identified above, and conducted temperature checks for all high-risk inmates. We also provided these inmates additional education regarding COVID-19 prevention, and advised them to seek medical care immediately if they began to develop any symptoms.
44. I personally reviewed the medical records of the Plaintiff in this case, Edward Nellson, and asked an FCC Florence physician to independently review these records as well. Based on this review, both the physician and I determined that Mr. Nellson does not fit the criteria for a “high risk” individual under the established CDC criteria. He is 41 years old, and has not been diagnosed with any condition identified by the CDC as placing individuals at a higher risk of serious complications from COVID-19.
45. Inmates with work details. FCC Florence is also conducting enhanced screening for all inmates with ongoing work details, such as food service and cleaning orderlies. These functions are considered to be “essential” by FCC Florence. Each of these inmates is screened for illness both before and after each of their assigned work details. This includes being screened for any symptoms of illness and having their temperature taken. Furthermore, many cleaning orderlies are currently assigned only to the units in which they already reside and thus do not interact with staff or inmates in other units during the course of performing their duties.
46. General population. All inmates are encouraged to self-monitor and to report symptoms of illness to unit staff either orally or via a written copout. Medical staff are required to be present in each USP Florence housing unit at least twice per day in order to conduct sick call and pill line. The presence of medical staff affords inmates further opportunity to report any
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medical concerns. In addition, unit staff and other department representatives (including staff from education, commissary, psychology, and recreation) are required to conduct daily rounds in each USP Florence housing unit in order to ensure that the inmate population remains safe and healthy. If an inmate has an issue that he wants to bring to the staff’s attention, he can do so via a written request, commonly known as a cop-out, at any time, or during these rounds with staff.
47. Once there is a positive inmate case of COVID-19 at FCC Florence, should that occur, all inmates will be screened daily through temperature and symptom checks.
48. Any inmate who presents with symptoms consistent with COVID-19 will be evaluated by a medical provider in the Health Services Department. Based upon this evaluation, a determination will be made whether isolation and/or testing is appropriate. Bravo Bravo Unit at USP Florence has been designated as the isolation unit for inmates who are symptomatic and/or test positive for COVID-19 at that particular institution.
49. If any inmate is isolated, the inmates housed in the same housing unit with him will be quarantined pending results of a COVID-19 test provided to the inmate, or 14 days, whichever is sooner.
50. Inmates may also be placed in a quarantine or isolation setting if they are exposed to a person with COVID-19, where they will be monitored daily for a period of at least 14 days. Quarantine or isolation will only be discontinued once 14 days elapse without the inmate(s) developing new symptoms.
51. FCC Florence Health Services medical providers are prioritizing immediate medical care for anyone who claims symptoms indicative of a COVID-19 infection.
2. Staff and Visitors 52. Since March 19, 2020, all individuals entering the FCC complex (including staff,
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delivery drivers, or any other visitors) must undergo a health screening upon entry. This includes having their temperature taken and being asked a number of questions to evaluate their risk of exposure, as well as whether they have been experiencing any symptoms of illness. See Att. G, Coronavirus Disease 2019 (COVID-19) Staff Screening Tool.
53. The individuals conducting this health screening at the front entrance of FCC Florence are authorized to deny entry to any individual if he or she has a body temperature of 100.4 degrees Fahrenheit, or above, or reports other symptoms consistent with COVID-19 (although they may consult with FCC Florence medical providers in advance of the decision to deny entry).
54. This screening applies to all staff and visitors, including those who leave the grounds of FCC Florence even for a short duration of time, such as to purchase lunch.
55. FCC Florence employees have also been educated regarding the importance of staying home if they are feeling ill, and are required to self-report any COVID-19 exposure (known or suspected) as well as any positive COVID-19 test. If a staff member is tested for COVID-19, they are not permitted to return to work until after receiving the results of the test.
D. COVID-19 Testing at FCC Florence 56. The CDC has identified four “priority levels” for testing individuals with a suspected COVID-19 infection. See Att. H, CDC Priorities for Testing Patients with Suspected COVID-19 Infection. Priority levels one through three include hospitalized patients and healthcare workers with symptoms (Priority Level 1); symptomatic patients in long-term care facilities, individuals 65 years or older, individuals with underlying conditions, and first responders (Priority Level 2); and symptomatic critical infrastructure workers, individuals who do not meet any of the criteria in Priority Levels 1 or 2, healthcare workers and first responders, and individuals with mild symptoms in communities experiencing high numbers of COVID-19
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hospitalizations (Priority Level 3). Id. The fourth, or non-priority level, is for individuals without symptoms. Id.
57. The CDC has made clear that “[n]ot everyone needs to be tested for COVID-19,” and “decisions about testing are at the discretion of state and local health departments and/or individual clinicians.” See cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html (last visited on Apr. 2, 2020).
58. At FCC Florence, the decision whether to test an inmate for COVID-19 is made by Bureau medical providers based on a number of criteria, including but not limited to: (1) the nature and severity of the symptoms; (2) the inmate’s potential exposure to COVID-19; (3) whether the inmate is considered “high-risk,” and (4) whether the inmate is on a work detail, such as food service, that requires the inmate to interact with other inmates or staff.
59. To date, two FCC Florence inmates have been tested for COVID-19. One of those tests was negative. The other test remains pending.
60. FCC Florence has over 100 COVID-19 test kits currently in stock, with the ability to request more tests from its vendor on an as-needed basis. Because of the nationwide shortage of tests, FCC Florence’s vendor has chosen to allocate tests strategically, and to send its tests to the locations and institutions where tests are most needed. Because FCC Florence does not currently have any known infections, its vendor will not provide additional tests for FCC Florence to stockpile unless and until there is a demonstrated need for it. Should such a need arise in the future, FCC Florence has the ability to request additional tests and to receive them in a matter of days.
E. Additional Measures to Combat COVID-19. 61. In addition to the above steps, FCC Florence has taken a number of additional
17

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measures to combat COVID-19. 62. First, all inmates have access to sinks, water, and soap at all times. New inmates
admitted to any institution at FCC Florence automatically receive soap, and all inmates may receive new soap weekly. For inmates without sufficient funds to purchase soap in the commissary, soap is provided at no cost to the inmate. USP Florence inmates are able to wash their clothing and linens at least once weekly.
63. Second, all common areas in inmate housing units are cleaned daily, and are typically cleaned by inmate orderlies multiple times throughout the day, with a designated disinfectant that kills human coronavirus. USP Florence has made this disinfectant available to all inmates so that they may use it to clean their own cells on a regular basis. Common areas outside inmate living areas, including the USP Florence, lobby, bathrooms, cafeteria, etc., are also cleaned with the same disinfectant on a daily basis (and often multiple times per day).
64. Each housing unit has been stocked with cleaning supplies for use by inmate orderlies and other inmates to clean both the common areas and their cells on a daily basis.
65. FCC Florence has limited the number of in-person meetings scheduled onsite for staff. If such meetings take place, they are limited to 10 people and must be conducted in areas permitting individuals to maintain an appropriate distance from one another. FCC Florence has also implemented a video-conferencing system to replace in-person meetings to the extent practicable.
66. Correctional staff are required to disinfect all common equipment, such as keys and radios, upon obtaining these items from the supply room and again upon their return. Staff also have regular, consistent access to soap and hand sanitizer.
67. Correctional staff have been provided PPE to be used in appropriate locations
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throughout FCC Florence such as quarantined areas, isolation units, and screening sites. FCC Florence has sufficient PPE on hand, including N-95 respirator masks, surgical masks, and rubber gloves, to meet its current and anticipated needs, as well as the ability to order additional PPE should the need arise.
68. On April 5, 2020, all inmates and staff were provided protective face masks for daily use.
69. Beginning April 6, 2020, all staff members will be restricted to working only in a single designated institution within the FCC Florence complex. For example, staff members designated to USP Florence will not be permitted to enter FCI Florence, and vice versa. III. CONCLUSION
70. In sum, the Bureau and FCC/USP Florence take the COVID-19 pandemic extremely seriously and have implemented numerous measures to proactively combat the spread of this disease to staff members and the inmate population. The various phases of the Bureau’s Action Plan have been designed and implemented in a systemic manner both nationally and at FCC/USP Florence in order to mitigate the spread of COVID-19.
71. In addition to the steps taken at the national level, FCC Florence itself has taken a number of measures to prevent the introduction and spread of COVID-19 in the complex.
72. To date, no inmates or staff members11 at FCC Florence have been diagnosed with COVID-19.
73. The Bureau and FCC/USP Florence remain flexible in their ability to receive
11 FCC Florence does not provide testing for Bureau staff members. They are responsible for seeking their own medical care in the community. However, as explained above, any staff member who has tested positive for COVID-19 and/or is symptomatic of suspected COVID-19 is not allowed on the grounds of FCC Florence.
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guidance from the CDC and other health organizations and to modify their actions to best respond to this pandemic, according to the quickly shifting needs on the ground.
Pursuant to the provisions of 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my information, knowledge, and belief. Executed on this 6th day of April 2020, in Florence, Colorado.
s/ Shari Himlie___ Shari Himlie Health Services Administrator FCC Florence Federal Bureau of Prisons
Enclosures Att. A, FLP Movement Schedule Att. B, Inmate Town Hall Information (Mar. 10, 2020) Att. C, CDC COVID-19 Stop the Spread of Germs Factsheet Att. D, Lock Down Update (Mar. 27, 2020) Att. E, Inmate Town Hall Bulletin (Apr. 1, 2020) Att. F, Coronavirus Disease 2019 (COVID-19) Inmate Screening Tool Att. G, Coronavirus Disease 2019 (COVID-19) Staff Screening Tool Att. H, CDC Priorities for Testing Patients with Suspected COVID-19 Infection
20

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CORONAVIRUS DISEASE 2019 (COVID-19) INMATE SCREENING TOOL

1. Assess the Risk Of Exposure

 Yes  No Traveled from, or through, any of the locations identified by the CDC as increasing epidemiologic risk within the last 14 days? Link to CDC Criteria
 Yes  No Had close contact with anyone diagnosed with the COVID-19 illness within the last 14 days?
If the answer to ALL the above risk of exposure questions is NO, then STOP here and proceed with normal intake. If the answer to ANY of the above risk of exposure questions is YES, then immediately assess symptoms.

2. Assess Symptoms  Yes  No Fever (Fever may not be present in some patients, such as elderly, immunosuppressed,
or taking certain medications. Fever may be subjective or objective).  Yes  No Cough  Yes  No Shortness of Breath (SOB)

Date of Onset:

3. Implement Infection Prevention Control Measures if YES to the above questions in (2).

3a. The Symptomatic Patient
If the patient has any symptoms, implement Standard, Contact, and Airborne Precautions with Eye Protection
 Report case promptly to facility leadership, infection prevention and control (IPC), public health and Regional and Central Office QIIPC Consultants.
 Place a surgical mask on the patient and minimize proximity to staff and inmates  All staff escorting, evaluating, or in close contact (6 ft.) with the patient should perform hand hygiene,
put on gloves, gown, fit-tested respirator (N-95), goggles or face shield and gloves before room entry or inmate contact. Inmate will wear a surgical mask. Doffing: gloves, gown, exit room, doff face shield then N-95 and wash hands.  Escort patient to a certified Airborne Infection Isolation (AII) room.  If no AII room is available, isolate in room with door closed and preferably air is exhausted outside.  Prepare for transport to a designated referral healthcare facility in coordination with the local public health authority (do not call for transport service without prior notification and escort in place to move inmate).  Minimize and keep a log of all persons interacting with (6ft.) or caring for, the inmate.  Once the AII room is empty for two hours, it can be cleaned and disinfected with an EPA registered disinfectant (Emerging viral pathogens claim), by a person in proper PPE.  Waste disposal: Double bag trash as hazardous waste. Linens: Double bag in linen hazard bag for washing in central laundry
3b. The Asymptomatic Patient
If the patient has no symptoms house in a single cell, and implement Standard, Contact and Droplet Precautions with Eye Protection
 Report case to facility leadership, QIICP, public health and Regional and Central Office QIIPC Consultants.  House patient in a single cell. The preferred location is within Health Services. If unable to house patient in a single cell
contact Regional and Central Office Infection Prevention and Control Consultants.
 Limit # of persons interacting with inmate. Utilize social distancing (6 ft.).  Document a daily symptom assessment and temperature (Inmate can self-monitor with disposable thermometer or use
non-contact thermometer. Utilize disposable food trays. Have inmate clean and disinfect room daily with disposable towels, if possible. Trash will be double bagged out of room.
 Staff entering room will perform hand hygiene, wear a gown, surgical mask, goggles or face shield and gloves. Inmate will
wear a surgical mask. Remove PPE, except face shield and mask at exit. Outside room, remove mask and wash hands.
 Continue modified housing and observation procedures until 14 days after the last possible exposure date.  If at any time the patient becomes symptomatic, implement the steps in 3a – The Symptomatic Patient.

Inmate Name (Last, First): ____________________________________Registration # __________________ Institution: ______________________________________________________________________________ Provider Name/Signature: _________________________________________ Date: ____________________
February 2020, Version 2.0

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Case 1:20-cv-00756-PAB Document 17-2 Filed 04/06/20 USDC Colorado Page 1 of 11
Exhibit 2
Declaration of Paula Trujillo

Case 1:20-cv-00756-PAB Document 17-2 Filed 04/06/20 USDC Colorado Page 2 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Action No. 20-cc-00756-PAB EDWARD NELLSON, individually, and a CLASS of similarly-situated persons,
Defendants, v. WARDEN J BARNHART, in his individual and official capacity, and UNITEDS STATES FEDERAL BUREAU OF PRISONS,
Defendants.
DECLARATION OF PAULA TRUJILLO
I, Paula Trujillo, pursuant to 28 U.S.C. § 1746, and based upon my personal knowledge and information made known to me from official records reasonably relied upon by me in the course of my employment, hereby make the following declaration relating to the above entitled matter.
1. I am employed by the United States Department of Justice, Federal Bureau of Prisons (Bureau) as a Paralegal at the United States Penitentiary – Administrative Maximum (ADX), located in Florence, Colorado. I have been employed by the Bureau, in positions of increasing responsibility, since September 2002. One of those positions included serving as the Administrative Remedies Clerk at ADX Florence for approximately five years.
2. As part of my official duties, I have access to records maintained by the Bureau in the ordinary course of business, including administrative remedy requests of federal inmates,
1

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information maintained in the SENTRY1 database, and inmate central files. All records attached to this declaration are true and accurate copies of Bureau records maintained in the ordinary course of business.
3. I am familiar with all four levels of the inmate administrative grievance procedure created by the Bureau Administrative Remedy Program. See 28 C.F.R. §§ 542.10 - 542.19.
4. The Bureau has a four-tiered Administrative Remedy Program for inmate grievances, which is codified at 28 C.F.R. § 542.10 et seq. The first step is informal resolution with prison staff. 28 C.F.R. § 542.13(a). Requests for Informal Resolution Forms (also known as a BP-8) are not assigned a Remedy ID number and are not tracked. The second step is the filing of a formal Request for Administrative Remedy (also known as a BP-9) at the institution in which the inmate is incarcerated. See 28 C.F.R. § 542.14. If the inmate feels the response to his BP-9 is not satisfactory, within 20 calendar days of the date the Warden signed the response, the inmate may then appeal the complaint to the Regional Director, by filing a Regional Office Administrative Remedy Appeal (also known as a BP-10). See 28 C.F.R. § 542.15(a). If dissatisfied with the Regional Director’s response, the inmate may appeal to the Director, National Inmate Appeals, in the Office of the General Counsel in Washington D.C., by filing a Central Office Administrative Remedy Appeal (also known as a BP-11). Id. An inmate may not raise in an appeal an issue he did not raise in a lower level filing. See 28 C.F.R. § 542.15(b)(2).
1 SENTRY is the Bureau’s national database which tracks various data regarding an inmate’s confinement, including, but not limited to, an inmate’s institutional history, sentencing information, participation in programs, administrative remedies, and discipline history.
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5. An inmate has not exhausted his administrative remedies until he has properly sought review at all three formal levels. Id.
6. Since July 1990, the Bureau has maintained information related to administrative complaints filed by inmates under the Bureau Administrative Remedy Program in SENTRY. One of the many functions of the SENTRY database is to track administrative remedy complaints and appeals, and it allows one to complete a computerized search of complaints and appeals filed by a specific inmate.
7. Each formal complaint (i.e. BP-9, BP-10, and BP-11) is logged into SENTRY at the receiving location. If the complaint is an initial filing, it receives a unique Remedy ID Number upon initial entry, which follows the complaint throughout the appeal process. Each Remedy ID Number also contains an extender that identifies the level of review. The extension F-1 indicates the complaint was filed at the institution level (BP-9). The extension R-1 indicates the complaint or appeal was filed at the regional level (BP-10). The extension A-1 indicates the appeal was filed at the national level (BP-11). So, for example, a formal complaint may be identified as 123456-F1 when filed as a BP-9 at the institution level, as 123456-R1 when filed as a BP-10 at the regional level, and as 123456-A1 when filed as a BP-11 at the national level. That is, the unique Remedy ID number follows the complaint through the process but the extension changes to reflect the level at with the complaint is filed. The number at the end of the extension may change if the remedy or appeal is initially rejected and is then re-filed due to a technical problem, such as improper form, failing to include documentation, or improper filing at that level (i.e., 123456-F1; 123456-F2, etc.).
8. I am familiar with the plaintiff in this litigation, inmate Edward Nellson
3

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(Plaintiff), Federal Register No. 31408-007. Plaintiff is currently incarcerated at the United States Penitentiary (USP) in Florence, Colorado. I am aware of the allegations made by Plaintiff in the Complaint (Doc. 1) and the Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 10). Generally, Plaintiff alleges that the Bureau, and USP Florence specifically, is not doing enough to combat the spread of COVID-19 amongst the inmate population. Doc. 10.
9. I have reviewed the SENTRY information identifying the number and types of administrative remedies and appeals filed by Plaintiff.
10. During Plaintiff’s time in the custody of the Bureau, up until March 31, 2020, the date the Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 10) was filed, he filed 35 Requests for Administrative Remedy (BP-9) or appeals (BP-10 or BP-11). See Att. A, SENTRY Administrative Remedy Index. However, he has not filed a single Request for Administrative Remedy (BP-9) or appeal thereof (BP-10 or BP-11) since September 7, 2018. Id. at 4.
11. None of the 35 Requests for Administrative Remedy or appeals pertain to the allegations in either his Complaint (Doc. 1) or the Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 10). As such, Plaintiff did not file any administrative remedies/appeals related to this case.
4

Case 1:20-cv-00756-PAB Document 17-2 Filed 04/06/20 USDC Colorado Page 6 of 11 Pursuant to the provisions of 28 U.S.C. § 1746, declare under penalty of perjury
that the foregoing is true and correct to the best of my information, knowledge, and belief. Executed on this 6th day of April 2020, in Florence, Colorado. s/ Paula Trujillo Paula Trujillo Paralegal ADX Florence, Colorado Federal Bureau of Prisons
Enclosures Attachment A, SENTRY Administrative Remedy Index
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Attachment A

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FLMAA

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PAGE 001 OF

06:39:43

FUNCTION: L-P SCOPE: REG EQ 31408-007

OUTPUT FORMAT: SAN

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

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

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

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

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

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

EXTENDED: _ REMEDY LEVEL: _ _

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

RCV OFC : EQ ____

____

____

____

____

____

TRACK: DEPT: __________ __________ __________ __________ __________ __________

PERSON: ___

___

___

___

___

___

TYPE: ___

___

___

___

___

___

EVNT FACL: EQ ____

____

____

____

____

____

RCV FACL.: EQ ____

____

____

____

____

____

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

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

ORIG FACL: EQ ____

____

____

____

____

____

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

ORIG QTR.: EQ __________ __________ __________ __________ __________ __________

G0002

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FLMAA PAGE 002 OF

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REMEDY-ID

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

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

446079-F1

15AM/ LEE

DISPUTES PARTICIPATING IN FRP

LEE

03-19-2007

CLD

04-02-2007

627469-R1

20DS/ NCR

DHO APPEAL

THP

02-09-2011

REJ

02-09-2011

627469-R2

20DS/ NCR

DHO APPEAL/CODE 104/ HEARING 1-28-2011

THP

03-04-2011

CLD

04-08-2011

627469-A1

20DS/ BOP

DHO APPEAL/CODE 104/ HEARING DATE 01-28-2011

THP

04-26-2011

CLD

06-15-2011

645496-R1

34ZS/ NCR

CLAIMS OF CRIMINAL NEGLIGENCE BY STAFF

THP

06-27-2011

REJ

06-27-2011

658964-R1

20DS/ NCR

DHO APPEAL/ IR 2175149

THP

10-04-2011

REJ

10-04-2011

658964-A1

20DS/ BOP

DHO APPEAL/ IR 2175149

THP

10-31-2011

REJ

11-10-2011

667011-F1

25DS/ THP

CLAIMS THEFT OF PROPERTY

THP

12-01-2011

CLO

12-14-2011

658964-R2

20DS/ NCR

DHO APPEAL/ CODE 101, 104/ HEARING 8-25-11

THP

12-05-2011

CLD

01-26-2012

676714-A1

15IS/ BOP

SMU PLACEMENT

THP

01-23-2012

CLD

09-18-2012

658964-A2

20DS/ BOP

DHO APPEAL/ IR 2175149

THP

02-15-2012

REJ

03-06-2012

658964-A3

20DS/ BOP

DHO APPEAL 09-06-2011 CODE 101, 104

THP

03-19-2012

CLD

12-11-2012

754688-F1

26AM/26BM ALP

LEW INJURY 3/3/13 - CLAIMS DID NOT RECV PROPER CARE

ALP

10-23-2013

REJ

10-23-2013

754688-R1

26AM/26BM NER

LEW INJURY 3/3/13 - CLAIMS DID NOT RECV PROPER CARE

ALP

11-04-2013

REJ

11-08-2013

754688-A1

26AM/26BM BOP

LEW INJURY 3/3/13 - CLAIMS DID NOT RECV PROPER CARE

ALP

12-02-2013

REJ

12-17-2013

899096-R1

34AM/26AM MXR

ALLEGES STAFF LIED ON RECORD REGARDING HIS CONDITION

LEW

04-20-2014

REJ

04-20-2017

G0002

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FLMAA PAGE 003 OF

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REMEDY-ID

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

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

778194-R1

20DS/ NER

DHO APPEAL

LEW

05-01-2014

REJ

05-06-2014

778112-F1

21AS/ LEW

WANTS UDC EXPUNGED

LEW

05-06-2014

CLD

05-16-2014

780636-R1

20DM/ NER

DHO APPEAL CODE 104 HEARING 4/15/2014

LEW

05-23-2014

REJ

05-27-2014

780636-R2

20DM/ NER

DHO APPEAL CODE 104 HEARING 4/15/2014

LEW

06-09-2014

REJ

06-18-2014

866080-F1

26AS/26BS BSY

STATES MEDICAL SERVICE HAS NOT SEEN HIM OR GIVEN HIM

BSY

06-17-2016

CLD

07-14-2016

866080-R1

26AS/26BS MXR

STATES MEDICAL SERVICE HAS NOT SEEN HIM OR GIVEN HIM

BSY

07-20-2016

REJ

07-20-2016

866080-A1

26AS/26BS BOP

STATES MEDICAL SERVICE HAS NOT SEEN HIM OR GIVEN HIM

BSY

08-02-2016

REJ

08-23-2016

901679-F1

26BM/ HAZ

MEDICAL CARE

HAZ

05-09-2017

REJ

05-11-2017

928154-F1

26HM/ CAA

I/M CLAIMS FALSE MEDICAL RECORDS & WANTS TREATMENT

CAA

01-22-2018

CLD

02-26-2018

928155-F1

26ZM/ CAA

I/M WANTS TRANSFER FOR MEDICAL ISSUES AND TREATMENT

CAA

01-22-2018

CLD

02-26-2018

928155-R1

26ZM/ NER

I/M WANTS TRANSFER FOR MEDICAL ISSUES AND TREATMENT

CAA

03-15-2018

VOD

03-16-2018

928155-R2

26ZM/ NER

I/M WANTS TRANSFER FOR MEDICAL ISSUES AND TREATMENT

CAA

03-15-2018

REJ

03-16-2018

928154-R1

26HM/ NER

I/M CLAIMS FALSE MEDICAL RECORDS & WANTS TREATMENT

CAA

03-15-2018

CLD

04-11-2018

928155-R3

26ZM/ NER

I/M WANTS TRANSFER FOR MEDICAL ISSUES AND TREATMENT

CAA

03-28-2018

CLD

04-23-2018

928155-A1

26ZM/ BOP

I/M WANTS TRANSFER FOR MEDICAL ISSUES AND TREATMENT

CAA

04-02-2018

REJ

04-17-2018

928154-A1

26HM/ BOP

I/M CLAIMS FALSE MEDICAL RECORDS & WANTS TREATMENT

CAA

05-18-2018

CLO

06-18-2018

G0002

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SANITIZED FORMAT

*

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REMEDY-ID

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

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

928155-A2

26ZM/ BOP

I/M WANTS TRANSFER FOR MEDICAL ISSUES AND TREATMENT

CAA

05-18-2018

CLO

06-26-2018

950975-R1

20DS/ NER

DHO APPEAL

COP

08-17-2018

REJ

08-22-2018

953663-R1

20DM/ SER

DHO HEARING DATE 06-18-18, CODE 299

COP

09-07-2018

CLO

09-26-2018

G0000

35 REMEDY SUBMISSION(S) SELECTED TRANSACTION SUCCESSFULLY COMPLETED

 
 Case 1:20-cv-00756-PAB Document 19 Filed 04/13/20 USDC Colorado Page 1 of 10
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a CLASS of similarly-situated persons,
Plaintiffs, v. WARDEN J BARNHART, in his individual and official capacity, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants. PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE [ECF No. 17] TO MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Mr. Edward Nellson, by and through undersigned counsel, hereby submits his Reply to Defendants’ Response to Motion for Temporary Restraining Order and Preliminary Injunction:
INTRODUCTION Defendants want Mr. Nellson and all other prisoners within USP Florence to wait three months before filing this lawsuit to exhaust their administrative remedies while COVID-19 runs rampant. The law, as applied to these facts, does not require Mr. Nellson and other prisoners to risk death while Defendants deny grievance after grievance. Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1173 (7th Cir. 2010). Defendants promised many precautions in their Response, such as hand soap for all prisoners, but Mr. Nellson and other prisoners have no hand soap, hand sanitizer, or other precautions available.1
1 Undersigned counsel represents that Mr. Nellson reported the factual assertions regarding Defendants’ inactions. Undersigned counsel attempted to speak with Mr. Nellson to obtain his

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REFUTATION OF DEFENDANTS’ FACTUAL BACKGROUND In their Response, Defendants explained the numerous precautionary measures they are allegedly taking to prevent the spread of COVID-19. Response, ECF No. 17 at 2-9. Unfortunately, though, as of Wednesday, April 9, 2020, Defendants are not protecting the prisoners and are not providing these precautionary measures. While USP Florence has placed its prisoners in lockdown, prisoners are otherwise unprotected and open to risk. Defendants claim that prisoners have “access to sinks, water, and soap at all times.” ECF No. 17 at 7. However, Mr. Nellson and his fellow prisoners have no hand soap available. They also do not have any hand sanitizer. Defendants’ have explained to Mr. Nellson and other prisoners that they have run out of hand soap and hand sanitizer. Within the close confines of the prison and without the ability to wash their hands consistently, Mr. Nellson and other prisoners run an elevated risk of catching and spreading COVID-19. Additionally, Defendants claim that “all [prisoners] and staff were provided protective face masks for daily use.” ECF No. 17 at 8. Defendants have provided masks to prisoners, but these masks are flimsy cloth masks rather than protective face masks (like the N-95 respirator masks that Defendants claim to have an abundance of) that would help prevent the spread of COVID-19. Moreover, Defendants have failed to either provide their employees masks or they have failed to implement procedures requiring their employees to wear masks, because the Bureau of Prisons (“BOP”) employees who work daily with these prisoners fail to wear any protective gear at all, including masks.
declaration after this Court’s order on April 9, 2020, but his counselor was unable to schedule a call prior to the filing deadline. Mr. Nellson will supplement this Reply with his declaration this week after he can speak with undersigned counsel.
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Defendants also recognize the necessity of social distancing, claiming they have taken steps to promote distancing in addition to locking the complexes down. ECF No. 17 at 7. Despite this, Defendants are forcing prisoners out of their cells into spaces such the law library or the restrooms, in which it is impossible for prisoners to be more than two feet apart at all times.2
COVID-19’s presence in USP Florence, or even the Federal Correctional Complex broadly, is not a question of if, but when. As of April 12, 2020, there are 352 federal prisoners and 189 BOP staff who have confirmed positive test results for COVID-19 nationwide across 40 BOP facilities. Federal Bureau of Prisons, “COVID-19 Virus,” Apr. 12, 2020, available at: https://www.bop.gov/coronavirus (last accessed April 13, 2020). Thus far, COVID-19 has caused ten federal prisoners’ deaths. Id. There are now seven confirmed cases of COVID-19 in Fremont County, where FCC Florence is located, and fifty-eight confirmed cases in nearby Pueblo County. https://covid19.colorado.gov/case-data (last accessed April 12, 2020). Note that this is a change from the original TRO motion at which point there were no cases in Fremont County and only one case in Pueblo County. Defendants must act now to protect both their prisoners and staff.
ARGUMENT I. Mr. Nellson Has Carried His Burden of Showing a Likelihood of Success
The administrative remedy system established in the BOP is not available to Mr. Nellson. Even assuming, arguendo, that it is available, it falls into one of the Ross exceptions as a “dead end,” and Mr. Nellson requires a separate exception due to the urgent nature of COVID-19.
2 Of additional concern, Defendant BOP planned a cell rotation for the U.S. Penitentiary – Administrative Maximum facility, located on the same complex as USP-Florence, for April 11, 2020. Such a procedure would place a large number of prisoners at great risk of contracting COVID-19, as each cell would not be properly sanitized prior to each new occupant moving in.
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A. Defendants’ Administrative Remedy Program is Not an Available Program Through Which Mr. Nellson Can Obtain Immediate Relief
The Prison Litigation Reform Act requires prisoners to exhaust “all such administrative remedies as are available.” 42 U.S.C. § 1997e(a). The Court recognized, “the ordinary meaning of the word ‘available’ is capable of use for the accomplishment of a purpose, and that which is accessible or may be obtained.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (internal quotation marks omitted); see also Booth v. Churner, 532 U.S. 731, 737-38 (2001). This definition takes into account whether an imminent risk of severe harm poses such a danger as to render exhaustion unavailable. Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1173 (7th Cir. 2010).
In Fletcher, the court clearly stated, “If a prisoner has been placed in imminent danger of serious physical injury by an act that violates his constitutional rights, administrative remedies that offer no possible relief in time to prevent the imminent danger from becoming an actual harm can’t be thought available.”3 Id.; see also Thornton v. Snyder, 428 F.3d 690, 695-96 (7th Cir. 2005); Dixon v. Page, 291 F.3d 485, 491 (7th Cir. 2002); Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C. Cir. 2008); Beharry v. Ashcroft, 329 F.3d 51, 58 (2d. Cir. 2003). The court also hypothesized, “[i]f it takes two weeks to exhaust a complaint that the complainant is in danger of being killed tomorrow, there is no ‘possibility of some relief’ and so nothing for the prisoner to exhaust.” Id. at 1174; see also Ross, 136 S. Ct. at 1859 (reasoning that a prisoner is only required to exhaust his administrative remedies that “are capable of use to obtain some relief for the action complained of.”) (citation omitted).
3 To be sure, the same court stated that imminent danger does not excuse the duty to exhaust available administrative remedies. Fletcher, 623 F.3d at 1173. Here though, the remedies were unavailable.
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In this case, each day is significant because Mr. Nellson and other prisoners are confronted by a pandemic virus that is spreading like wildfire across prisons and our general population. See, e.g., Mays v. Dart, JC-IL-0054-0002, Doc. 1 (N.D. Ill., Apr. 3, 2020) (describing the rapidly escalating public health disaster occurring in Cook County Jail, where both prisoners and staff are contracting COVID-19 at an alarming rate). In response, Defendants demand Mr. Nellson use their “four-step administrative remedy program” to exhaust his claim here, a process that would take approximately ninety days to complete. See ECF No. 17 at 12; see also 28 C.F.R. §§ 542.10542.19.4 An administrative remedy program that provides exhaustion after ninety days is not “capable of use for the accomplishment of [the] purpose[s]” these prisoners require to prevent a known and serious risk of death from COVID-19. Ross, 136 S. Ct. at 1858.
Relevantly, the first confirmed case of COVID-19 in the United States occurred on January 20, 2020. Michelle Holshue, et al., First Case of 2019 Novel Coronavirus in the United States, 382 N Engl J Med. 2020 929-36, (March 5, 2020). On the date of this filing (April 13, 2020), it has been eighty-four days since COVID-19 was confirmed in the United States. Even if Mr. Nellson had begun exhausting his administrative remedies when COVID-19 first started spreading in this country, he still would not have completed the exhaustion process today. Defendants’ administrative remedy program crawls at such a slow pace that it cannot and does not offer any “possible relief in time to prevent the imminent danger from becoming an actual harm.” Fletcher,
4 Mr. Nellson recognizes that he may be able to skip the first step by submitting his request for relief to the Regional Director first if he explains it is a sensitive issue, and the Regional Director has discretion to decide if it is sensitive or not. 28 C.F.R. § 542.14(d). Though Mr. Nellson assumes Defendants intentionally omitted this from their Response, even achieving this only shortens the process by twenty days. Mr. Nellson would still be subject to seventy days while waiting for the remaining responses.
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623 F.3d at 1173. Mr. Nellson and the other prisoners need immediate relief. The only way to ensure that Mr. Nellson and the prisoners are protected is an Order from this Court, as evidenced by Defendants’ argument that they are doing enough yet Mr. Nellson has not seen these changes. See Response at 2-7. If Mr. Nellson must wait three more months to exhaust his administrative remedies, this lawsuit will be too late. Additionally, if this Court determines that there are available administrative remedies for Mr. Nellson to pursue, he also qualifies for both explicit and implicit exceptions under Ross.
B. Mr. Nellson Qualifies for Both the “Dead End” Exception and an Emergency Exception to the Exhaustion Requirement
Defendants essentially rest their argument on Ross to show Mr. Nellson does not qualify for an exception. ECF No. 17 at 1. Defendants’ argument fails, however, from the beginning because it distorts the language of Ross.
In Ross, the Court established three circumstances in which administrative remedies were effectively unavailable to the plaintiff, thereby creating exceptions to the exhaustion requirement: (1) when the administrative procedure operates as a “dead end;” (2) when the administrative scheme is so opaque it is incapable of use; and (3) when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1859-60. Defendants begin their argument by stating “[i]n fact, the only exception to the exhaustion requirement is when the administrative remedy process is ‘unavailable’” as established in Ross. Response at 11 (citing Ross, 136 S. Ct. at 1858). This distorts the holding of Ross by making these categories appear to be exclusive.
Contrary to Defendants’ position though, in Ross, the Court prefaced its list of categories by first stating “[b]uilding on our own and lower courts’ decisions, we note as relevant here three
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kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief . . .” Ross, 136 S. Ct. at 1859 (emphasis added). A number of courts have recognized these categories are non-exhaustive. See e.g., Williams v. Correction Officer Priatno, 829 F.3d 118, 124 n. 3 (2d. Cir. 2016) (“We note that the three circumstances discussed in Ross do not appear to be exhaustive, given the Court’s focus on three kinds of circumstances that were ‘relevant to’ the facts of that case.”); accord, Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017); Doe v. County of Milwaukee, 2017 WL 1843262, *7 (E.D. Wis., May 5, 2017); Millner v. Biter, 2017 WL 735688, *4 (E.D. Cal., Feb. 24, 2017); Mena v. City of New York, 2016 WL 3948100, *4 (July 19, 2016).
Here, Mr. Nellson certainly qualifies for the exception under Ross because the Defendants’ administrative remedy operates as a “dead end.” Defendants’ Response itself demonstrates exactly this; Defendants assert they are already taking proper measures to protect its prisoners and its staff. Response at 12-13. Defendants believe their conduct already falls within constitutional standards, indicating no change would occur even if Mr. Nellson had grieved these issues. Id. Such a result would leave Mr. Nellson and his fellow prisoners woefully unprepared for COVID-19 because Defendants are not implementing the most basic of protections, such as providing hand soap or hand sanitizer, or systematically screening prisoners. If Mr. Nellson and his fellow prisoners are required to wait three more months before petitioning this Court for relief, they risk meeting a very literal “dead end.”
Additionally, because Ross was not exclusive in its list of exceptions, Mr. Nellson cannot be expected to delay his cry for help in an emergency such as this. COVID-19 is spreading rapidly and will soon be at the steps of USP-Florence. If Defendants do not implement the requisite change
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now, all prisoners, including Mr. Nellson, will continue to risk infection and even death from COVID-19. See, e.g., Mays v. Dart, JC-IL-0054-0002, Doc. 1 (N.D. Ill., Apr. 3, 2020).
C. Mr. Nellson is Likely to Succeed on his Eighth Amendment Claim Defendants concede the objective element of Mr. Nellson’s Eighth Amendment claim; as their Response and attached declarations make clear, COVID-19 is an extremely serious threat to both prisoners and staff. See, e.g., ECF No. 17 at 2-7; ECF No. 17-1, Hemlie Declaration at ¶¶ 56. Defendants argue that Mr. Nellson has not shown that they have failed to respond to the COVID-19 crisis by detailing the measures they are supposedly taking over seven pages of their Response. ECF No. 17 at 2-9. However, these measures must be implemented to be effective. Estelle v. Gamble, 429 U.S. 97, 103 (1976) (establishing that the government is obligated to provide medical care to its prisoners and failure to do so causes unnecessary and wanton infliction of pain). As of now, Defendants have not taken reasonable steps to abate the risk of COVID-19. As described above, Mr. Nellson and other prisoners have access to neither soap nor hand sanitizer at USP Florence, despite Defendants’ claims that they are “providing soap for handwashing.” ECF No. 17 at 14. Defendants also are not systematically testing the prisoners’ temperatures and are only allegedly testing their employees’ temperatures upon entering the facilities, even though Defendants know that a fever is a tell-tale sign of COVID-19. See, e.g., ECF No. 17-1 at 25. The masks that Mr. Nellson and the other prisoners have are simple cloth masks, not the protective masks such as the N-95 respirator masks that Defendants say they have plenty of. ECF No. 17 at 8. Moreover, Defendants specifically state that its staff “were provided protective face masks for daily use.” ECF No. 17 at 8. Mr. Nellson has not seen a single staff
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member wear a protective mask in the prison. Defendants also acknowledged themselves that prisoners are only allowed to wash their laundry “at least once weekly.” ECF No. 17 at 8 (emphasis added). This practice hardly maintains sanitary conditions in the face of a pandemic. Finally, Mr. Nellson and other prisoners cannot maintain social distancing in communal areas such as the restrooms or the law library; they can only be two feet apart in those spaces at most. Notably, this is not an isolated incident of misrepresentations; Defendants have also misrepresented their efforts in at least one other case involving the Metropolitan Detention Center in New York. Ex. 1 (demonstrating that infected prisoners have not been held in isolation nor have BOP staff been given sufficient protection gear, despite the BOP’s representations about their practices).
It naturally follows that a failure to take reasonable steps to mitigate a serious risk of harm from a pandemic virus necessitates a conclusion of deliberate indifference. Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005) (“[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.”) (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)). As clearly outlined in both Defendants’ Response and the declarations attached thereto, Defendants are fully knowledgeable about COVID-19 and the risk it poses to both the prisoners and the BOP’s staff. See generally, Response, ECF No. 17. Defendants are also undoubtedly aware of these concerns, as they have been raised in other lawsuits at different facilities. See, e.g., Chunn v. Edge, 1:20-cv-01590, Doc. No. 1 (E.D.N.Y. Mar. 27, 2020); Livas v. Myers, 2:20-cv-00422TAD-KK, Doc. No. 1 (W.D. La., Apr. 6, 2020). Yet, despite this knowledge, Defendants still expect Mr. Nellson and others to wait ninety days to exhaust their claims while Defendants fail to implement the bare minimum measures to protect them. Id.; Response at 13-17.
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CONCLUSION This is a matter of life and death. The Court must act. Respectfully submitted this 13th day of April 2020. /s/ Maria-Vittoria G. Carminati Maria-Vittoria G. Carminati (CO #50579) Alexandra Parrott (CO #54188) NDH LLC 4601 DTC Blvd., Suite 300 Denver, CO 80237 720-445-5655 mvcarminati@ndh-law.com aparrott@ndh-law.com /s/ Mario Williams Mario Williams (GA # 235254) Pro Hac Vice NDH LLC 44 Broad Street NW, Suite 200 Atlanta, GA 30303 404-254-0442 mwilliams@ndh-law.com
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Case 7:13-cr-00353-KMK Document 90 Filed 04/09/20 Page 1 of 3

Federal Defenders
OF N E W YO RK , I NC .

Southern District 52 Duane Street - 10th Floor, New York, NY 10007
Tel: (2 12) 417-8700 Fax : (212) 571--0392

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April 9, 2020
BY ECF AND EMAIL
Honorable Kenneth M. Karas United States District Judge Southern District of New York 40 Foley Square New York, NY 10007
Re: United States v. Rabadi 13 Cr. 353 (KMK)
Dear Judge Karas:
We write to briefly supplement our reply, filed this morning, based on factual information we just received from correctional staff at the MDC that directly contradicts information provided by the BOP to the government, and relied on by the government in opposing Mr. Rabadi’s compassionate release, with respect to the measures being taken by the BOP to control the spread of COVID-19 within the facility. Specifically, we learned that the VicePresident of the Union that represents correctional staff at the MDC sent the below email to the Warden of the MDC this morning:
-------------------------------------------------
Good morning, The Preamble states that we recognize that the employees are the most valuable resource of the agency. It has come to the Union's attention that management has shown that inmates are the most valuable asset to the Bureau. Can we please address the following concerns:
Why are staff not quarantined who have been in direct contact with inmates who have tested positive or were symptomatic? Meanwhile, you are quarantining an entire unit, and not saying a word to those staff members left behind. When will we show staff that we care about them? You only gave us 2 surgical masks to enter the building for protection, one more mask than you gave the inmates to reuse weekly.
Why do we have 2 inmates who tested positive on regular housing units? J-73 and G-43. These inmates were released to general population even before 7days of quarantine. Why aren't those

Case 1:20-cv-00756-PAB Document 19-1 Filed 04/13/20 USDC Colorado Page 2 of 3 Case 7:13-cr-00353-KMK Document 90 Filed 04/09/20 Page 2 of 3

Honorable Kenneth M. Karas United States District Judge

April 8, 2020 Page 2

housing units on quarantine with appropriate PPE for staff? if a staff member gets sick or even dies from the COVID19 virus in one of these units it's now noted that you were well aware. We are asking for N-95's on those units and for all staff entering these housing units.
Once staff test positive why haven't we informed all staff who have been in direct contact with those individuals? Why are they not quarantined? Why are we not appropriately informing the staff?
Rhonda Barnwell, A.F.G.E Local 2005 - Deputy Chief U.S. Department of Justice Federal Bureau of Prisons Metropolitan Detention Center 80 29th Street Brooklyn, NY 11232
------------------------------------------------The BOP has repeatedly asserted in litigation in the Southern and Eastern Districts of New York that it is containing the spread of coronavirus by keeping positive and symptomatic inmates on isolation (Gov’t Opp. at 1718; April 9 Letter to Chief Judge Mauskopf, pursuant to Administrative Order No. 2020-14, from Warden Edge and Warden Licon-Vitale, attached as Ex. A), but the Union, whose members are required to work inside the facility every day, states that two inmates who have tested positive were returned to regular housing units after less than 7 days, that those units are not now quarantined, and staff on those units have not been given appropriate personal protective gear. The Union also raises the clear problem of exposed staff not being quarantined, but rather, continuing to work on the units, and of staff members not being informed when other staff members whom they were in contact with have tested positive.
These assertions by the Union call the credibility of the BOP’s representations about the practices at MDC Brooklyn into serious question and further speak to the risk to all the inmates from such practices that are contrary to the CDC’s advice, and in particular the risk to vulnerable inmates such as Mr. Rabadi.
Respectfully Submitted,
/s/ Sylvie J. Levine Deirdre D. von Dornum Federal Defenders of New York

Case 1:20-cv-00756-PAB Document 19-1 Filed 04/13/20 USDC Colorado Page 3 of 3 Case 7:13-cr-00353-KMK Document 90 Filed 04/09/20 Page 3 of 3

Honorable Kenneth M. Karas United States District Judge

April 8, 2020 Page 3

CC: AUSA Daniel Richenthal AUSA Margery Feinzig Chief U.S. Probation Officer Michael Fitzpatrick Albert Dayan, Esq.

 
 Case 1:20-cv-00756-PAB Document 23 Filed 04/16/20 USDC Colorado Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer
Civil Case No. 20-cv-00756-PAB EDWARD NELLSON, individually, and on behalf of others similarly situated,
Plaintiff, v. WARDEN J. BARNHART, in his individual and official capacity, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants. _____________________________________________________________________
ORDER _____________________________________________________________________
This matter is before the Court on Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 10]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. I. BACKGROUND
Edward Nellson is an inmate at the United States Penitentiary in Florence, Colorado (“USP Florence”). Docket No. 10 at 1. He purports to represent a class of similarly situated inmates. Docket No. 1 at 1, 18. Plaintiff alleges that USP Florence is (1) not screening inmates or staff members for COVID-19, (2) not testing prisoners for COVID-19, (3) not isolating prisoners who test positive for COVID-19, and (4) not preventing infected staff members from working. Docket No. 10 at 1. Mr. Nellson filed a complaint on March 18, 2020, alleging that the failure to take the above steps violates his rights, and those of the class, under the Eighth Amendment. See Docket No. 1. On

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March 31, 2020, Mr. Nellson filed a motion for temporary restraining order (“TRO”), requesting that the Court order USP Florence to begin instituting screening, testing, and isolation of both inmates and staff. Docket No. 10 at 1-2.
Defendants filed a response on April 6, 2020, wherein they outline the steps that the Bureau of Prisons (“BOP”) and USP Florence have taken to reduce the risk to inmates from COVID-19. See Docket No. 17.1 Defendants indicate that the BOP has adopted a multiphase “Action Plan.” Docket No. 17-1 at 4, ¶¶ 6-7. On a nationwide basis, the BOP has
implemented screening requirements for inmates and staff; temporarily suspended social visits, legal visits, inmate transfers, official travel, and contractor access; updated its quarantine and isolation procedures; and instituted a ‘modified operations’ plan, which directs BOP facilities to adjust their daily operations in a manner that permits inmates to engage in physical distancing while in common areas, such as during mealtimes and recreation. Docket No. 17 at 2-3 (citing Docket No. 17-1 at 5-7, ¶¶ 8-15). Additionally, on April 1, 2020, the BOP required “all inmates to remain ‘secured in their assigned cells’ for a period of 14 days . . . to decrease the spread of the virus.” Id. at 3 (citing Docket No. 17-1 at 7-8, ¶ 16). As a result, “BOP inmates across the country are currently being confined to their cells for the majority of each day.” Id. (citing Docket No. 17-1 at 8-9, ¶ 17). At USP Florence, the following measures have been taken regarding inmates:
1 The response attaches as Exhibit 1 the declaration of Shari Himlie, the Health Services Administrator for USP Florence and the three other federal prisons located in Florence Colorado. See Docket No. 17-1. Ms. Himlie oversees the health services operations at each of the Florence prisons. Id. at 2-3, ¶ 1-4.
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(1) new inmates are screened and quarantined for 14 days regardless of whether the inmate displays symptoms; (2) high-risk individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), are screened, given temperature checks, and provided “additional education regarding COVID-19 prevention”; (3) medical staff check on general population housing units twice a day; (4) inmates with work details are screened for symptoms and have their temperatures taken before shifts begin and then again before returning to their housing units; (5) any inmate presenting COVID-19 symptoms is immediately evaluated to determine whether testing or isolation is appropriate and whether any other inmate who had contact with the symptomatic inmate should be quarantined; (6) designated quarantine and isolation units have been created; and (7) inmate testing is based on CDC guidance, looking to the nature and severity of symptoms, an inmate’s potential exposure to COVID-19 and risk profile, and whether an inmate has a work detail that requires contact with other inmates or staff. Docket No. 17-1 at 13-16, 18, ¶¶ 33-50, 58.
Regarding staff and visitors, USP Florence has implemented the following measures: (1) all staff and visitors must have their temperature taken, disclose symptoms of illness, and answer questions designed to evaluate their risk of exposure before entering USP Florence; (2) any staff member or visitor who reports symptoms or has a temperature of above 100.4 degrees Fahrenheit may be excluded from the building; and (3) any staff member who has been tested for COVID-19 is not permitted to return to work until she receives a negative test result. Id. at 16-17, ¶¶ 52-53, 55.
USP Florence has taken additional, staff-related steps by: (1) limiting the
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number of in-person meetings; (2) capping the number of attendees at in-person meetings; (3) replacing in-person meetings with video-conferencing to the extent practicable; and (4) requiring staff members to work at only one institution in the complex where USP Florence is located. Id. at 19-20, ¶¶ 65, 69
As to sanitation, USP Florence: (1) provides all inmates with access to sinks, water, and soap at all times; (2) offers new soap weekly; (3) gives all new inmates soap upon arrival; (4) provides soap at no cost to any inmate without sufficient funds to purchase it; (5) cleans housing common areas at least once daily, “typically” multiple times a day, with a disinfectant that kills coronavirus; (6) provides inmates with the disinfectant so that they may clean their cells with it; (7) cleans common areas outside the living areas with the disinfectant on a daily basis and “often multiple times a day”; (8) disinfects staff common equipment, such as radios and keys, whenever an item is checked out or returned; (9) provides personal protective equipment, such as respirator masks, surgical masks, and rubber gloves, to staff in quarantined areas, isolation units, and screening sites; and (10) provides all inmates and staff protective masks for daily use. Id., ¶¶ 62-64, 67-68
As of the date of this order, the BOP website shows no reported COVID-19 cases among prisoners or staff as USP Florence. See COVID-19 Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus (last updated Apr. 15, 2020). II. LEGAL STANDARD
The standard for a TRO is the same as that for a preliminary injunction. See Wiechmann v. Ritter, 44 F. App’x 346, 347 (10th Cir. 2002). To succeed on a motion
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for a preliminary injunction, the moving party must show (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the movant’s favor; and (4) the injunction is in the public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 US. 7, 20 (2008)). “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) (quotations and citation omitted). Granting such “drastic relief,” United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989), is the “exception rather than the rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).
There are three types of preliminary injunctions that are disfavored: (1) injunctions that disturb the status quo, (2) injunctions that are mandatory rather than prohibitory, and (3) injunctions that provide the movant substantially all the relief it could feasibly attain after a full trial on the merits. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005). In seeking a disfavored injunction, “the movant must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Fish v. Kobach, 840 F.3d 710, 724 (10th Cir. 2016) (quotations and alterations omitted); see also Schrier, 427 F.3d at 1259 (stating that such injunctions “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal
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course” (quotations omitted)). Plaintiff here seeks an injunction that alters the status quo. Therefore, plaintiff’s
motion falls under the heightened standard for preliminary injunctions. See Schrier, 427 F.3d at 1260. III. ANALYSIS
Before reaching the merits of plaintiff’s motion, the Court addresses defendants’ argument that plaintiff is required to exhaust administrative remedies before seeking a TRO. The Prison Litigation Reform Act (“PLRA”) states that “[n]o 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.” 42 U.S.C. § 1997e(a). This language is mandatory. See Ross v. Blake, 136 S. Ct. 1850, 1856 (2016); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA.”). “[T]he PLRA’s text suggests no limits on an inmate’s obligation to exhaust,” except that administrative remedies must be “available.” Ross, 136 S. Ct. at 1856. As a result, “a court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Id. at 1856-57. Availability, however, does not turn on the types of remedies available through the administrative procedures, but on the administrative procedures themselves. Booth v. Churner, 121 S. Ct. 1318, 1825 (2001). There must be “the possibility of some relief,” not all relief an inmate hopes to receive through the grievance process. Ross, 136 S. Ct. at 1859 (quotations omitted).
A plaintiff is required to exhaust administrative remedies before seeking a TRO
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or a preliminary injunction, just as he is required to do before seeking other remedies covered by the PLRA. See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (“When a prison inmate seeks injunctive relief, a court not need ignore the inmate’s failure to take advantage of adequate prison procedures, and an inmate who needlessly bypasses such procedures may properly be compelled to pursue them.”); Little, 607 F.3d at 1249 (addressing exhaustion before reaching the merits of a plaintiff’s request for a preliminary injunction due to prison conditions).
The Supreme Court has described the PLRA as a “mandatory exhaustion” statute and has “reject[ed] every attempt to deviate . . . from its textual mandate.” Ross, 136 S. Ct. at 1857. “Because the prison’s procedural requirements define the steps necessary for exhaustion, an inmate may only exhaust by properly following all of the steps laid out in the prison system’s grievance procedure.” Little, 607 F.3d at 1249. The only “textual exception to mandatory exhaustion” in the PLRA is the “availability” of administrative remedies. Ross, 136 S. Ct. at 1858. The Supreme Court has noted three types of administrative remedies that, “although officially on the books, [are] not capable of use to obtain relief.” Id. at 1859. First, “an administrative procedure is unavailable when . . . it operates as a simple dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Third, a remedy can become unavailable when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860.
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Here, Mr. Nellson has not alleged that he has attempted to “follow[] . . . the steps laid out in the prison system’s grievance procedure[s].” Little, 607 F.3d at 1249. Plaintiff does, however, argue that the administrative grievance process is unavailable to him because it is a “dead end” that would take ninety days to complete, which would put plaintiff and other inmates at USP Florence at risk of COVID-19. Docket No. 19 at 7-8. However, the dead-end exception to exhaustion is only relevant when “officers [are] unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859. Plaintiff does not argue that defendants are unwilling or unable to implement the type of relief that he requests. The steps outlined by defendants belie plaintiff’s argument that defendants are unable or unwilling to provide relief in response to COVID-19.
Plaintiff’s dead-end argument is another formulation of his argument that, because plaintiff is at risk, he is not required to exhaust his administrative remedies since the grievance process can “offer no possible relief in time to prevent the imminent danger.” Docket No. 19 at 4 (citing Fletcher v. Menard Correctional Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010)). Plaintiff relies on Fletcher, a case from the Seventh Circuit, to support his argument. See 623 F.3d at 1173. Fletcher, however, does not support the unavailability of administrative remedies in plaintiff’s situation.
First, Fletcher was decided before Ross. Second, and more importantly, Fletcher did not hold that any inmate in imminent danger is always exempted from exhausting administrative remedies. Fletcher held that, where there are no administrative remedies that can redress an immediate danger to inmate health or
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safety, administrative remedies are unavailable. 623 F.3d at 1173. But, in Fletcher, the Seventh Circuit found that the plaintiff had emergency grievance procedures available to him, which the plaintiff did not exhaust. Id. at 1175. As a result, the Seventh Circuit held that the plaintiff had not exhausted his administrative remedies. Id. (“[T]he imminent-danger exception does not excuse a prisoner from exhausting remedies tailored to imminent dangers. Fletcher had an available such remedy.”).
Here, 28 C.F.R. § 542.18 offers inmates an emergency procedure where, “[i]f the Request is determined to be of an emergency nature which 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; see also Ray v. Aztec Serv. Co., 784 F.2d 888, 889 (10th Cir. 1984) (“This court can take judicial notice of agency rules and regulations.”). Plaintiff is thus incorrect that “[t]here is no guarantee that any individual responding to Mr. Nellson’s requests will, in fact, do so in the time promised.” Docket No. 22-1 at 2. Notification of this regulation is provided to prisoners through the BOP’s Program Statement for the Administrative Remedy Program. See Docket No. 21 at 7 (citing Fed. Bureau of Prisons, Administrative Remedy program (2014), https://www.bop .gov/policy/progstat/1330_018.pdf). Thus, under Fletcher, plaintiff had an administrative remedy available to him that takes into account the speed and nature of the COVID-19 emergency. Plaintiff makes no allegation that he attempted to utilize this emergency procedure or that it was a dead end. See Brown v. Eardley, 184 F. App’x 689, 692 (10th Cir. 2006) (unpublished) (holding that, if the emergency grievance procedure applies, a plaintiff is “required to exhaust fully those grievances”).
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Additionally, the Supreme Court defines availability as some relief, not all relief, that an inmate seeks. See Ross, 136 S. Ct. at 1859. Plaintiff does not argue that he would be able to receive no relief whatsoever through the administrative grievance process but, rather, that the process would not be able to institute all the relief he requests immediately. But total and immediate relief is not the standard for exhaustion, “the possibility of some relief” is. Id. (quotations omitted). Moreover, as defendants point out, plaintiff is not required to complete the entire administrative process before receiving some relief; he may get relief at any stage of the administrative process. See Docket No. 21 at 1-2.
The Court finds that plaintiff has failed to exhaust his administrative remedies before seeking judicial relief. In reaching this conclusion, the Court does not overlook the risks of COVID-19 at USP Florence or in the prison system generally. But the Court may not alter the mandatory requirements of the PLRA for COVID-19 or any other special circumstance. See Ross, 136 S. Ct. at 1856-57 (“[A] court may not excuse a failure to exhaust, even to take [special] circumstances into account.”).
Even assuming that plaintiff exhausted his administrative remedies, he still would not be entitled to a TRO because defendants have already implemented the relief that he requests. As a result, plaintiff cannot show “that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. Plaintiff requests the following relief: (1) screening of prisoners and staff for symptoms of COVID-19; (2) testing of prisoners and staff demonstrating symptoms of COVID-19; (3) quarantining of inmates testing positive for COVID-19; and (4) preventing staff testing positive for COVID-19
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from contact with inmates. Docket No. 10 at 1-2. The BOP states that it has implemented all four of plaintiff’s requests.
First, as to screening, all new inmates and high-risk inmates USP Florence are screened for symptoms of COVID-19. Docket No. 17-1 at 13-14, ¶¶ 33-35, 41. Medical staff checks on general population inmates twice daily to ensure that general population inmates are not exhibiting symptoms. Id. at 15, ¶ 46. Additionally, inmates with a work detail are screened and have their temperatures taken each time they begin and end their work detail. Id., ¶ 45. Staff are also screened for symptoms and are required to have their temperatures taken. Id. at 16-17, ¶ 52.
Second, as to testing, USP Florence tests inmates in accordance with CDC protocols. Id. at 17-18, ¶¶ 56-58. This includes analyzing an inmate’s exposure risk profile and determining whether an inmate has had potential exposure to COVID-19 or is exhibiting symptoms. Id. at 18, ¶ 58.
Third, as to quarantine, the BOP has instituted a stay in place order, requiring all prisoners to limit movement as much as practicable. Id. at 7-8, ¶ 16. USP Florence has set up special units for isolation and quarantine. Id. at 16, ¶¶ 48-51. USP Florence also considers quarantining individuals who have had contact with those exhibiting symptoms of COVID-19, even if those individuals do not exhibit symptoms themselves. Id.
Fourth, as to exclusion of staff, any staff members exhibiting symptoms or measuring a fever of 100.4 degrees Fahrenheit or above may be excluded, regardless of whether they have tested positive for COVID-19. Id. at 16-17, ¶¶ 52-54. Any staff
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member who has been tested is not allowed to return to work until that staff member tests negative. Id. at 17, ¶ 55.
Because defendants have instituted all the relief that plaintiff requests, the Court finds that plaintiff will not suffer likely irreparable harm if the Court denies plaintiff’s request for a TRO. Winter, 555 U.S. at 22. The lack of an injunction cannot harm plaintiff when the injunctive relief would add no additional measures beyond defendants’ current screening, testing, and isolation procedures. Because granting a preliminary injunction requires a showing on each factor and plaintiff cannot show irreparable harm, he cannot succeed on his TRO motion. See Winter, 555 U.S. at 2324 (holding that “[a] proper consideration” of the balance of equities and public interest “alone requires denial of the requested injunctive relief” and, therefore, declining to address the likelihood of success on the merits); see also Big O Tires, LLC v. Felix Bros., Inc. 724 F. Supp. 2d 1107, 1121 (D. Colo. 2010) (declining to address every factor because “the resolution of them will have no bearing on the outcome”).
In reply, plaintiff argues that not all of the defendants’ measures are being implemented. Specifically, plaintiff argues that only cloth masks, and not N95 medical masks, are being offered to inmates. Docket No. 19 at 8. Additionally, plaintiff argues that it is impossible to maintain physical distancing in the “restrooms or the law library” and that inmates are not being provided with soap. Id. at 8-9. Defendants indicate, however, that when inmates are allowed out of their cells, they have been directed to maintain appropriate physical distancing. Docket No. 17-1 at 8-9, ¶ 17. Plaintiff does not explain why he must use the communal restrooms, as opposed to a toilet in his cell,
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and why he must use the law library at times when physical distancing is not possible. However, if plaintiff’s allegations are true, they would not be enough to show deliberate indifference and, as a result, plaintiff does not have a likelihood of success on the merits.
A claim for deliberate indifference to serious medical needs has an objective and a subjective component. The objective component requires that the medical need be “sufficiently serious.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The subjective component requires that “a prison official knows of and disregards an excessive risk to inmate health or safety.” Id. (citation and quotations omitted).
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. As outlined above, defendants have taken numerous steps to reduce the risk of transmission at USP Florence. A lack of social distancing in the law library and communal restrooms, as well as the provision of cloth, rather than N95 masks, does not demonstrate that defendants have disregarded the risk of COVID-19 at USP Florence. The CDC has stated that cloth masks are sufficient for non-medical workers and suggests that only medical professionals use N95 masks because they are in short supply. See Cloth Face Coverings: Questions and Answers, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/cloth-face-cover-faq.html (last updated Apr. 4, 2020) (“Surgical masks and N95 respirators are in short supply and should be reserved for healthcare workers or other medical first responders, as recommended by CDC guidance.”). Providing CDC-
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recommended face masks does not demonstrate that defendants are disregarding a risk to inmate health or safety.
As to plaintiff’s contention that inmates have not been provided soap, Ms. Himlie’s declaration states that USP Florence is providing prisoners with soap weekly and at no cost if an inmate cannot afford it. Docket No. 17-1 at 19, ¶ 62. Additionally, plaintiff purchased soap as recently as April 14, 2020. Docket No. 21-1 at 3, ¶ 6. Given these considerations, and the steps that defendants have taken, the Cour t finds that defendants have not disregarded a substantial risk to inmate safety and, therefore, plaintiff is not likely to succeed on the merits. IV. CONCLUSION
For the foregoing reasons it is ORDERED that Plaintiff’s Motion for Leave to File Surreply [Docket No. 22] is GRANTED. Accordingly the Clerk’s office shall docket Exhibit 1 to Docket No. 22 as plaintiff’s surreply. It is further ORDERED that the portion of Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 10] that requests a temporary restraining order is DENIED.

DATED April 16, 2020.

BY THE COURT:

PHILIP A. BRIMMER Chief United States District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a Class of similarly-situated persons,
Plaintiff, v. WARDEN J. BARNHART, in his individual and official capacities, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants.
DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Warden J. Barnhart, in his official capacity, and the Federal Bureau of Prisons (“BOP”), submit the following response in opposition to Plaintiff’s Motion for Preliminary Injunction. The Court should deny the motion for the same reasons set forth in the Court’s April 16, 2020, Order denying Plaintiff’s motion for a temporary restraining order. See generally ECF No. 23. Now, as then, Plaintiff has failed to exhaust his administrative remedies and cannot meet his high burden to show that the extraordinary relief of a preliminary injunction is warranted.1
FACTUAL BACKGROUND Plaintiff Edward Nellson, an inmate at the United States Penitentiary in Florence,
1 Much of this response mirrors Defendants’ previous response to Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 10. This is because the legal analysis for temporary restraining orders and preliminary injunctions is the same, see Wiechmann v. Ritter, 44 F. App’x 346, 347 (10th Cir. 2002), and because the facts are largely unchanged. But as explained below, this response incorporates a small number of recent factual developments.

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Colorado (“USP Florence), seeks a preliminary injunction directing USP Florence to take four specific measures in response to the COVID-19 pandemic: (1) begin screening staff and inmates for symptoms of COVID-19; (2) begin testing staff and inmates demonstrating symptoms of COVID-19; (3) quarantine all prisoners testing positive for COVID-19; and (4) exclude all BOP staff testing positive for COVID-19 from contact with inmates. See ECF No. 10 at 1-2.
Defendants are already taking the steps that Plaintiff is seeking to impose. Specifically, as set forth below,2 USP Florence is employing a number of measures for screening, testing, quarantining, and excluding symptomatic individuals from USP Florence as appropriate.
A. Shelter-in-place order. USP Florence inmates are currently subject to a “shelter-inplace” order that will remain in place through at least May 18, 2020. See Ex. 1, Himlie Decl. ¶ 16; Ex. 2, Supp. Himlie Decl. ¶ 7. Under this order, USP Florence inmates are confined to their cells for the majority of each day. See Ex. 2 ¶ 8. While the order remains in effect, meals and commissary purchases are delivered directly to inmates’ cells, and inmates are permitted to leave their cells only in small groups on a rotating basis in a manner designed to permit them to maintain physical distancing while in common areas. Id. Inmates have been specifically directed to maintain such distancing to the extent practicable. Id. Although inmates are permitted to leave their cells for limited period of time each day, they are not required to do so. Id. Inmates may
2 Throughout this section, Defendants will refer to two declarations: (1) the Declaration of Shari Himlie, which was originally submitted on April 6, 2020, with Defendants’ previous response to Plaintiff’s motion for a temporary restraining order and preliminary injunction (ECF No. 17-1), attached hereto as Exhibit 1; and (2) the Supplemental Declaration of Shari Himlie, which advises the Court as to new facts relevant to Plaintiff’s preliminary injunction motion that postdate her previous declaration, attached as Exhibit 2. As explained in Ms. Himlie’s Supplemental Declaration, the preventative and protective measures that she described in her April 6, 2020, declaration still remain in place at USP Florence today. Ex. 2 ¶¶ 3, 12.
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remain in their cells if they choose. Id. B. Screening. USP Florence is screening both newly arriving inmates and resident
inmates for COVID-19. Ex. 1 ¶¶ 35-47; Ex. 2 ¶¶ 3, 12. New inmate screening. Newly arriving inmates are both screened and quarantined. Ex. 1
¶¶ 35-39. All incoming USP Florence inmates are screened by Health Services providers in a single, controlled area separate from other complex staff and inmates. Id. ¶¶ 38-39. Inmates are evaluated for symptoms of illness, as well as for “exposure risk factors” such as recent exposure to known or suspected COVID-19 cases. Id. ¶ 35. Whether or not inmates display symptoms or have exposure risk factors, they are automatically quarantined for a period of 14 days to ensure that they do not develop symptoms consistent with COVID-19, and are only released into the general population at the expiration of those 14 days upon medical clearance. Id. ¶¶ 36-37. All staff in any such quarantine or isolation units must wear Personal Protective Equipment. Id. ¶ 37.
Existing inmate screening. USP Florence is also screening its resident inmate population for symptoms of COVID-19. Ex. 1 ¶¶ 41-47; Ex. 2 ¶¶ 3, 12-14.
First, USP Florence has identified inmates who are “high-risk” for adverse COVID-19 effects as defined by the CDC, including individuals over age 553 and those diagnosed with certain medical conditions, such as chronic lung disease, moderate to severe asthma, liver disease, and diabetes. Ex. 1 ¶¶ 41-42. Health Services staff have screened each high-risk individual for exposure risk factors, have conducted temperature checks of these individuals, and
3 CDC guidance classifies individuals over age 65, rather than 55, to be “high risk.” See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. Nonetheless, Health Services staff determined to search for individuals over the age of 55 in order to take an even more conservative approach to identifying high-risk individuals.
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have provided education to these inmates regarding COVID-19 prevention. Id. ¶ 43. Plaintiff Nellson is not considered a “high risk” inmate: he is 41 years old and has not been diagnosed with any condition identified by the CDC as placing individuals at higher risk. Id. ¶ 44.
Second, USP Florence is actively monitoring its general inmate population for illness. Id. ¶ 46. Medical staff are present in all USP Florence housing units at least twice a day so that inmates may report any medical concerns. Id. All inmates have been directed to report symptoms of illness immediately. Id. If an inmate requires medical attention, he will be reviewed and triaged for additional care, including being evaluated by a BOP physician. Ex. 2 ¶ 14. Once there is a positive case of COVID-19 at USP Florence, should that occur, all inmates will be screened daily through temperature and symptom checks. Ex. 1 ¶ 47.
Third, USP Florence has also implemented enhanced screening measures for inmates with ongoing work details whose functions have been determined to be “essential” to the institution and whose work takes them outside their own housing unit. Ex. 1 ¶ 45. For inmates who must leave their housing units to perform their work duties (such as inmates who work in food service, commissary, or laundry), this screening process takes place in the Health Services Department of USP Florence, rather than in the housing units. Ex. 2 ¶ 13. Inmates who are subject to those enhanced screening procedures are screened for symptoms of illness and are required to have their temperatures taken both before their shifts begin and once again before returning to their housing units. Id. Plaintiff Nelson is assigned as a unit orderly but works within the same housing unit in which he resides and does not leave his housing unit to perform his cleaning duties, and thus is not subject to these same enhanced screening procedures because he does not have exposure to staff or inmates outside his housing unit. Id. ¶ 14.
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C. Isolation and quarantine procedures. Any inmate at USP Florence presenting with symptoms consistent with COVID-19 is immediately evaluated by a medical provider to determine whether testing and/or isolation is appropriate, and whether other measures (such as quarantine) should be implemented for inmates with whom the symptomatic inmate had contact. Ex. 1 ¶¶ 48-50.; Ex. 2 ¶¶ 3 & 12. FCC Florence has in place designated quarantine and isolation units for this purpose. Ex. 1 ¶¶ 36, 37, 48; Ex. 2 ¶¶ 3 & 12.
D. Testing. USP Florence is conducting testing in accordance with CDC guidelines. Ex. 1 ¶¶ 56-58; Ex. 2 ¶ 3, 12, 25. The decision whether to test an inmate for COVID-19 is made by BOP medical providers based on a number of criteria, including but not limited to: (1) the nature and severity of the symptoms; (2) the inmate’s potential exposure to COVID-19; (3) whether the inmate is considered “high-risk,” and (4) whether the inmate is on a work detail that requires the inmate to interact with other inmates or staff. Ex. 1 ¶ 58; Ex. 2 ¶ 25. USP Florence has access to COVID-19 test kits if a medical provider determines that testing is necessary. Ex. 2 ¶ 25.
To date, no staff or inmates at the FCC Florence complex (which includes USP Florence and other institutions) have been diagnosed with COVID-19. Ex. 2 ¶ 27.
E. Screening and excluding staff and visitors. USP Florence screens all staff members and visitors who enter the institution. Upon entry, all staff and visitors must have their temperature taken, disclose symptoms of illness, and respond to questions designed to evaluate their risk of exposure. Ex. 1 ¶ 52; Ex. 2 ¶¶ 3, 12. The individuals conducting this screening have authority to deny entry to anyone with a temperature above 100.4 degrees, or who report COVID-19 symptoms or exposure risk factors. Ex. 1 ¶ 53. Staff members who are tested for COVID-19 are not permitted to return to work until receiving a negative test result. Id. ¶ 55.
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F. Additional measures to combat COVID-19. USP Florence has also taken other measures to prevent the introduction and spread of COVID-19 within the institution.
Physical distancing. As noted above, all inmates at USP Florence are subject to a “Stay in Shelter” order that will continue through at least May 18, 2020. Ex. 1 ¶¶ 16-17; Ex. 2 ¶ 7. Under this order,4 inmates are confined to their cells for the majority of the day and, when not in their cells, have been directed to maintain appropriate physical distancing. Ex. 2 ¶¶ 7-8.
USP Florence staff have also taken steps to promote distancing by limiting in-person meetings, capping the number of permitted attendees, and implementing a video-conferencing system. Ex. 1 ¶ 65. In addition, all staff members are restricted to working only in a single designated institution within the FCC Florence complex. Id. ¶ 69. For example, staff members designated to USP Florence are not permitted to enter FCI Florence, and vice versa. Id.
Hand-washing. All inmates have access to sinks, water, and soap at all times. Id. ¶ 62; Ex. 2 ¶ 15. New inmates admitted to any institution at FCC Florence automatically receive soap, and all inmates may receive new soap weekly. Ex. 1 ¶ 62; Ex. 2 ¶ 15. For inmates without sufficient funds to purchase soap in the commissary, soap is provided at no cost. Ex. 1 ¶ 62; Ex. 2 ¶ 15. The BOP’s Regional Director for the North Central Region (which oversees USP Florence) has directed that any inmate who needs additional soap will be given additional soap. ECF No. 21-2 ¶ 5. Plaintiff himself has purchased six bars of soap this month. Id. ¶ 6.
Cleaning. All common areas in inmate housing units are cleaned daily, and are typically
4 USP Florence had earlier adopted, on March 13, 2020, a “modified operations” plan that provided for staggered meal and recreation times in order to limit congregate gatherings and permit inmates to maintain distance from one another while outside their cells. Ex. 1 ¶¶ 11-12.
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cleaned by inmate orderlies multiple times throughout the day. Ex. 1 ¶ 63; see also ECF No. 281 ¶ 11 (representation by Plaintiff that he and other orderlies clean the common areas in the housing unit once every few hours). The orderlies use a disinfectant that kills human coronavirus. Ex. 1 ¶ 63; Ex. 2 ¶ 15. USP Florence has also made this disinfectant available to inmates to clean their own cells. Ex. 1 ¶¶ 63-64; Ex. 2 ¶ 15. Common areas outside inmate living areas—such as the USP Florence lobby, bathrooms, and cafeteria—are cleaned with the same disinfectant. Ex. 1 ¶ 63; Ex. 2 ¶¶ 3, 12. Staff are also required to disinfect all common equipment, such as keys and radios, upon obtaining these items from the supply room and again upon their return. Id. ¶ 66; Ex. 2 ¶¶ 3, 12. Staff also have regular, consistent access to soap and hand sanitizer. Id. ¶ 66; Ex. 2 ¶¶ 3, 12.
Personal protective equipment. Correctional staff have been provided personal protective equipment (“PPE”) to be used in appropriate locations throughout FCC Florence such as quarantined areas, isolation units, and screening sites. Ex. 1 ¶ 67; Ex. 2 ¶ 19. In addition, all inmates and staff have been provided protective face masks for daily use. Ex. 1 ¶ 68; Ex. 2 ¶ 19. Staff are required to wear these masks at all times when in the institution’s common areas, when six-foot physical distancing measures cannot be observed. Ex. 2 ¶ 19. Staff are also required to keep a mask with them at all times in the event of an emergency. Id. Inmates have also been directed that use of a mask is mandated when they cannot maintain six feet of physical distance from other inmates and staff. Id. ¶ 20.
Inmate and staff education. USP Florence officials provide regular education to inmates and staff regarding the virus, the BOP’s response, and the measures that they themselves should take to stay healthy. Ex. 1 ¶¶ 24-31; Ex. 2 ¶¶ 16-23.
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LEGAL STANDARD “A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the [movant] is entitled to such relief.’” New Mexico Dep’t of Game & Fish v. United States Dep’t of the Interior, 854 F.3d 1236, 1245–46 (10th Cir. 2017) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). A party seeking a preliminary injunction must establish four elements: “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. In this case, Plaintiff must meet an even higher burden because he seeks preliminary injunctive relief that is “specifically disfavored” in the Tenth Circuit. Free the Nipple-Fort Collins v. City of Fort Collins, Colo., 916 F.3d 792, 797 (10th Cir. 2019). “Disfavored preliminary injunctions don’t merely preserve the parties’ relative positions pending trial. Instead, a disfavored injunction may exhibit any of three characteristics: (1) it mandates action (rather than prohibiting it), (2) it changes the status quo, or (3) it grants all the relief that the moving party could expect from a trial win.” Id. Here, Plaintiff acknowledges that the injunction he seeks falls into at least two of the three disfavored categories. ECF No. 10 at 3. Thus, to obtain this injunction, Plaintiff “faces a heavier burden” on both the “likelihoodof-success-on-the merits and the balance of harms factors.” Free the Nipple, 916 F.3d at 797. Specifically, he “must make a ‘strong showing’ that these [factors] tilt in [his] favor.” Id. (emphasis added). “Any preliminary injunction fitting within one of the disfavored categories must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course.” O Centro Espirita Beneficiente Uniao
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Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004). ARGUMENT
I. Plaintiff cannot show a likelihood of success on the merits. Plaintiff has not met his burden to make “a strong showing” that he is substantially likely
to succeed on the merits. See Free the Nipple, 916 F.3d at 798. A. Plaintiff failed to exhaust his administrative remedies. Plaintiff is not likely to succeed on the merits because he has still failed to exhaust his
administrative remedies. As the Court has observed, under the Prison Litigation Reform Act (“PLRA”), inmates are required to exhaust their administrative remedies in advance of seeking a preliminary injunction. See ECF No. 23 at 6-7 (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)). The Court has already found that there is no evidence Plaintiff attempted to exhaust his remedies before seeking preliminary injunctive relief. See id. at 8.
After the Court issued its Order on April 20, 2020, Plaintiff submitted an administrative remedy request at USP Florence, alleging that steps being taken at USP Florence to combat COVID-19 were inadequate. Ex. 3, Second Supp. Trujillo Decl. ¶ 5. In his remedy, he requested that inmates be screened for COVID-19 symptoms daily, including temperature checks; that they be tested for COVID-19; and that they be provided soap and hand sanitizer. Id.
The Warden responded to the grievance the following day. Id. ¶ 6. In that response, the Warden addressed each of Plaintiff’s concerns, and explained that USP Florence was already taking the majority of the precautionary measures that Plaintiff requested. See id. For those requests that USP Florence would not grant (such as testing all inmates for COVID-19 regardless of symptoms, and providing inmates with hand sanitizer), the Warden explained why the
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institution would not accommodate those specific requests. That Plaintiff has now submitted an administrative remedy request does not mean that he
has exhausted his remedies for purposes of this preliminary injunction motion. First, Plaintiff has not yet completed the exhaustion process; he must still raise his
grievance at both the Regional Office and, if his grievance is denied, at BOP’s Central Office. See ECF No. 17-2 ¶¶ 5-6 (explaining the four-tiered administrative remedy process).
Second, Plaintiff was required to exhaust his remedies before filing the instant action. See Booth v. Churner, 532 U.S. 731, 738 (2001) (“The ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint under § 1983 may be entertained.”) (emphasis added); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1236–37 (10th Cir. 2005) (inmate must exhaust before filing a lawsuit challenging prison conduct); Ruppert v. Aragon, 448 F. App’x 862, 863 (10th Cir. 2012) (an inmate cannot avoid dismissal by exhausting a claim while the litigation is pending)
Third, Plaintiff’s grievance—even had he completed the remedy process—would not exhaust the full scope of his claims here. Plaintiff’s remedy request focused on the discrete measures of screening, testing, and soap. It said nothing about quarantining or isolating inmates, or excluding individuals who test positive for COVID-19 from the institution. See Ex. 3 ¶ 5. Although an inmate need not articulate specific legal theories in an administrative grievance, he must at least alert prison officials to the nature of his claim in order to give officials a chance to address the matter internally. Kikumura v. Osagie, 461 F.3d 1269, 1283 (10th Cir. 2006), overruled in part on other grounds as recognized in Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008). Nothing in Plaintiff’s remedy request alerted prison officials that he had any concerns or complaints about the USP’s measures relating to quarantines, isolation, and
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exclusion—all of which are central measures at issue in his motion for a preliminary injunction. Finally, Plaintiff still cannot show that the remedy process is “unavailable” to him. He
cannot show that the prison was unwilling to respond or untimely in doing so: Plaintiff submitted his administrative remedy on April 20, 2020, and received a response from the Warden the following day.5
That the Warden denied Plaintiff’s request does not render the remedy process “unavailable.” “[T]he Supreme Court has recognized that as long as ‘the administrative process has authority to take some action in response to a complaint, even if not the remedial action an inmate demands,’ administrative remedies are ‘available.’” Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019) (quoting Booth v. Churner, 532 U.S. 731, 737-38, 741 (2001)) (emphasis in original). Here, as evidenced by the numerous measures that the BOP has taken to address the COVID-19 pandemic within USP Florence, the institution has the authority to implement screening and testing measures, and to provide soap and other cleaning agents. That the Warden denied some of the specific measures that Plaintiff was seeking, such as providing inmates with hand sanitizer,6 thus does not show that no remedy for such requests was potentially available through the process.
5 Nothing in the BOP’s regulations prevent a warden from responding to a request for redress more quickly than the maximum timeframes set forth therein. See 28 C.F.R. ¶ 542.18 (establishing the maximum timeframes for response at each level of the administrative process). As the Court has observed, the BOP may also expedite the remedy process at the institution level if the remedy “is determined to be of an emergency nature which threatens the inmate’s immediate health or welfare.” Id. 6 The BOP cannot provide inmates with hand sanitizer because it contains alcohol, and thus presents a safety and security risk. Ex. 3 ¶ 6. The BOP can, and does, provide inmates with access to sinks, soap, and cleaning agents to disinfect their cells. Ex. 2 ¶ 15.
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B. Plaintiff is not likely to succeed on his Eighth Amendment claim. Plaintiff is not likely to succeed on the merits of his Eighth Amendment claim for the same reasons set forth the Court’s April 16, 2020, Order denying Plaintiff’s request for a temporary restraining order. See ECF No. 23 at 13-14. To prevail on an Eighth Amendment “conditions of confinement” claim, Plaintiff must show that prison officials (1) deprived him of the minimal measure of life’s necessities, such as inmate health or safety (the objective prong), and (2) did so with “deliberate indifference” (the subjective prong). Farmer, 511 U.S. at 834. Plaintiff can show neither. First, Plaintiff has not demonstrated that Defendants have deprived him “of the minimal civilized measure of life’s necessities.’” Farmer, 511 U.S. at 834. “A prison official’s duty under the Eighth Amendment is to ensure reasonable safety.” Id. at 844 (emphasis added). As set forth in above and in the attached declarations, the BOP has taken reasonable steps to make USP Florence as safe an environment as possible under circumstances that expose everyone—prisoner and non-prisoner alike—to the risk of falling ill. It has sought and implemented advice from leading health authorities, and has implemented the same riskreduction practices recommended for the community at large: physical distancing, limited movement, screening mechanisms, providing soap for hand washing, frequently disinfecting common, high-touch areas, and quarantining or isolating individuals as appropriate. See generally Exs. 1 & 2. To date, these numerous precautions have been successful, as USP Florence currently has no positive cases of COVID-19. Plaintiff thus has not established that the BOP has deprived him of the “minimal civilized measure of life’s necessities” by denying him “reasonable safety” under the circumstances. Farmer, 511 U.S. at 834, 844.
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Second, Plaintiff has not shown the subjective prong—that Defendants are acting with deliberate indifference, i.e., that they “know of and [are] disregard[ing] an excessive risk to inmate health or safety.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (citing Farmer, 511 U.S. at 837). Plaintiff must show that prison officials have a culpable mental state that amounts to criminal recklessness. Farmer, 511 U.S. at 837.
Plaintiff has not shown that BOP officials are acting with deliberate indifference. As this Court has observed, Defendants have taken numerous steps to reduce the risk of COVID-19 transmission at USP Florence. See ECF No. 23 at 13. The measures outlined in Defendants’ previous response all remain in place today. See generally Ex. 1; Ex. 2 ¶¶ 3, 12. Defendants are closely monitoring the health of the inmate and staff populations at USP Florence, and are prepared to combat this virus if it makes its way into the institution. See id. II. Plaintiff fails to show that he will suffer irreparable harm.
Plaintiff’s motion also fails because he does not make an adequate showing of irreparable harm. “To constitute irreparable harm, an injury must be certain, great, actual and not theoretical.” Schrier v. Univ. Of Colo., 427 F.3d 1253, 1267 (10th Cir. 2005). “The party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Id.
As this Court has recognized, Plaintiff has not shown that he will suffer irreparable harm largely because Defendants are already employing the majority of measures Plaintiff seeks. Defendants are screening inmates for illness, Ex. 1 ¶¶ 32-50; testing symptomatic inmates in accordance with current CDC protocols, id. ¶¶ 56-58; and quarantining and excluding symptomatic individuals, id. ¶¶ 23, 37, 48-49.
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To the extent Plaintiff believes all inmates should have their temperatures taken daily before there is a single instance of COVID-19 at USP Florence, and that all inmates should be tested for COVID-19 regardless whether they have symptoms, Plaintiff has not shown that Defendants’ decision not to employ these measures subjects him to “certain, great, actual and not theoretical” harm. Schrier, 427 F.3d at 1267. As Defendants have explained, they are closely monitoring the inmate population for illness, including having BOP medical providers make twice-daily rounds, directing inmates to report symptoms of illness, and immediately evaluating any inmate who presents with possible symptoms. Ex. 1 ¶¶ 46 & 48. If an inmate at FCC Florence tests positive for COVID-19, Defendants will begin taking inmates’ temperatures on a daily basis. Id. ¶ 47. In addition, Defendants’ testing protocols are fully compliant with CDC guidance, which provides that “[n]ot everyone needs to be tested for COVID-19” and that “decisions about testing are at the discretion of state and local health departments and/or individual clinicians.” Id. ¶ 57. Plaintiff has not identified facts showing why the decision not to test “everyone,” including asymptomatic inmates, will cause him irreparable harm.7 III. The balance of the equities and the public interest support Defendants.
Finally, Plaintiff also has not shown that the balance of the equities and the public interest favor the issuance of an injunction. See Free the Nipple, 916 F.3d at 797 (noting that when a party seeks a disfavored injunction, he must make a “strong showing” that these factors “tilt in
7 Plaintiff has alleged that inmate workers are not screened for symptoms “before they leave the unit” to perform their work duties. See ECF No. 28-1 ¶¶ 12-13. But as explained in Ms. Himlie’s supplemental declaration, inmate workers are not screened inside their housing units; they are screened in the Health Services Department, both before and after their shifts. Ex. 2 ¶ 13. Thus, that Plaintiff does not personally observe this screening from his housing unit fails to show that this screening is not occurring.
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[his] favor.”). Because USP Florence has already taken the measures that Plaintiff demands, he has little to no interest in obtaining the requested injunction. Defendants, by contrast, have a significant interest in maintaining the flexibility that this pandemic demands, which allows them to mount a robust pandemic response while taking into account the critical security and administrative factors that are inseparable from the prison environment. See Turner v. Safley, 482 U.S. 78, 84 (1987) (“[R]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources,” and “courts are ill equipped to deal with the increasingly urgent problems of prison administration.”).
CONCLUSION For the foregoing reasons, Defendants respectfully request that Plaintiff’s Motion for Preliminary Injunction, ECF No. 10, be denied.
Respectfully submitted this 22nd day of April, 2020. JASON R. DUNN United States Attorney s/ Lauren M. Dickey Lauren M. Dickey Assistant United States Attorney 1801 California St., Ste 1600 Denver, Colorado 80202 Telephone: (303) 454-0100 Email: lauren.dickey2@usdoj.gov Attorney for Defendants
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on April 22, 2020, I electronically filed the foregoing with the Clerk of Court using the ECF system, which will provide notice to the following parties:
Mario Bernard Williams NDH LLC 44 Broad Street NW Suite 200 Atlanta, GA 30303 404-254-0442 Fax: 404-935-9391 Email: mwilliams@ndh-law.com
Alexandra Lee Parrott NDH LLC-Denver 4601 DTC Boulevard Suite 300 Denver, CO 80237 720-445-5655 Email: aparrott@ndh-law.com
Maria-Vittoria G. Carminati NDH LLC-Denver 4601 DTC Boulevard Suite 300 Denver, CO 80237 720-445-5655 Email: mvcarminati@ndh-law.com
s/ Lauren M. Dickey Lauren M. Dickey United States Attorney’s Office
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Exhibit 1
Declaration of Shari Himlie

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a Class of similarly-situated persons,
Plaintiff, v. WARDEN J. BARNHART, in his individual and official capacities, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants.
DECLARATION OF SHARI HIMLIE
I, Shari Himlie, pursuant to 28 U.S.C. § 1746, and based upon my personal knowledge and information made known to me from official records reasonably relied upon by me in the course of my employment, hereby declare as follows relating to the above-titled matter. All attachments to this declaration are true and accurate copies of Federal Bureau of Prisons records maintained in the ordinary course of business.
1. I am the Complex Health Services Administrator (HSA) with the Federal Bureau of Prisons (Bureau) at the Federal Correctional Complex (FCC) in Florence, Colorado. FCC Florence includes four separate institutions: the Federal Prison Camp (minimum security), the Federal Correctional Institution (FCI) (medium security), the United States Penitentiary – High Security (USP), and the United States Penitentiary – Administrative Maximum (ADX) in Florence, Colorado. As the FCC Florence HSA, I oversee the health services operations for all of these institutions. I am also a Registered Nurse and a Certified Corrections Nurse/Manager.
2. I have been employed by the Bureau, in positions of increasing responsibility, since November 2008. I have been the FCC Florence HSA since March 2018.

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3. As part of my official duties as the FCC Florence HSA, in collaboration with the Clinical Director, I manage and direct the activities of a multi-disciplinary team responsible for providing medical, dental, and allied health services (pharmacy, laboratory, and radiology) to the inmate population. I am also the primary supervisor for mid-level providers, emergency medical technicians, and nurses. I also provide administrative oversight to all contract physicians at FCC Florence.
4. With respect to COVID-19, specifically, I am involved on a daily basis in the identification, planning, and implementation of all Bureau directives for preventing the spread of COVID-19 at FCC Florence, including USP Florence. In addition to my normal role as FCC Florence HSA, I also serve as the Logistics Section Chief for the “FCC Florence Command Center” (discussed in further detail below), which is responsible for coordinating FCC Florence’s COVID-19 response. Through this role, I have knowledge of both the Bureau’s national directives relating to COVID-19 and the additional steps that FCC Florence, specifically, has taken to combat COVID-19 within the complex. 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 FCC Florence in order to prevent and manage the spread of COVID-19. I. NATIONAL STEPS TAKEN BY BUREAU TO ADDRESS COVID-191
5. Before discussing the steps being taken at FCC Florence, specifically, I will first discuss the phases of the BOP’s national response to the COVID-19 pandemic, which apply
1 As illustrated below, the Bureau’s national guidance has undergone a number of changes in response to the evolving threat. The Bureau has established a COVID-19 resource section on its public webpage which is available at: https://www.bop.gov/coronavirus/. This webpage includes updates on the Bureau’s response to COVID-19 and positive COVID-19 tests among inmates and staff at Bureau institutions nationwide.
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generally across all BOP institutions. As set forth below, the Bureau has taken—and is continuing to take—significant measures in response to the COVID-19 pandemic in order to protect the safety and security of all staff and inmates, as well as members of the public.
6. In January 2020, the Bureau became aware of the first identified COVID-19 cases in the United States and quickly took steps to prevent its introduction and spread in Bureau institutions. The Bureau’s response, detailed below, has occurred over five distinct “phases” to date. The Bureau will continue to modify and adjust its response as circumstances change, and at the guidance and direction of worldwide health authorities.
A. Action Plan for COVID-19 – Phase One 7. In January 2020, the Bureau began Phase One of its Action Plan for COVID-19. Phase One activities included, among other things, seeking guidance from the BOP’s Health Services Division regarding the COVID-19 disease and its symptoms, where in the United States infections were occurring, and the best practices to mitigate its transmission. See https://www.bop.gov/resources/news/20200313_covid-19.jsp. In addition, an agency task force was established to begin strategic planning for COVID-19 Bureau-wide. This strategic planning included building on the Bureau’s existing procedures for pandemics, such as implementing its pre-approved Pandemic Influenza Plan. From January 2020 through the present, the Bureau has been coordinating its COVID-19 efforts with subject-matter 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.
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B. Action Plan for COVID-19 – Phase Two 8. On March 13, 2020, the Bureau implemented “Phase Two” of its Action Plan. Phase Two put into place a number of restrictions across all Bureau facilities over a 30-day period, to be reevaluated upon the conclusion of that time period. Specifically, the Bureau suspended the following activities for a period of 30 days, with certain limited exceptions2: A. Social visits;3 B. Legal visits; C. Inmate facility transfers; D. Official staff travel; E. Staff training; F. Contractor access; G. Volunteer visits; and H. Tours. 9. In addition, during Phase Two, inmates were subjected to new screening requirements. Specifically, all newly arriving BOP inmates were screened for COVID-19 symptoms and “exposure risk factors,” including, for example, if the inmate had traveled from or through any high-risk COVID-19 locations (as determined by the CDC), or had had close contact with anyone testing positive for COVID-19. Asymptomatic inmates with exposure risk factors were quarantined, and symptomatic inmates with exposure risk factors were isolated and evaluated for possible COVID-19 testing by local Bureau medical providers.4
2 The exceptions are detailed at https://www.bop.gov/coronavirus/covid19_status.jsp. 3 To help ensure that inmates maintained social ties during this time, the BOP increased inmates’ telephone allotment to 500 minutes per month (from 300 minutes per month). 4 Throughout this declaration, “isolation” refers to a symptomatic inmate being confined to a single cell within a designated housing unit or medical unit. “Quarantine,” on the other hand,
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10. Staff were also subjected to enhanced health screening in areas of “sustained community transmission,” as determined by the CDC, and at medical referral centers. Colorado was designated a “sustained community transmission” state on March 19, 2020, and FCC Florence implemented this enhanced screening for staff and contractors at that time. The enhanced screening measures required all staff to self-report any symptoms consistent with COVID-19, as well as any known or suspected COVID-19 exposure, and further required all staff to have their temperature taken upon entry into any Bureau facility.
11. 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 times and staggered recreation times, for example, in order to limit congregate gatherings. Additionally, the Bureau established a set of quarantine and isolation procedures for known or potential cases of COVID-19.
12. USP Florence implemented this “modified operations” directive in a number of ways. For example, and among other things, USP Florence: (1) instituted “grab and go” breakfasts and dinners for inmates, meaning that inmates were permitted to pick up pre-packaged breakfasts and dinners at designated times, but had to return to their housing units in order to eat; (2) scheduled staggered lunchtimes, so that only a single housing unit could eat inside the cafeteria at any particular time; and (3) limited the number of inmates who could participate in recreation at one time so that each inmate could practice appropriate social distancing during recreation.
refers to asymptomatic inmates who may remain within their assigned housing units, together, but may not interact with staff or inmates outside of these housing units.
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C. Action Plan for COVID-19 – Phase Three 13. On March 18, 2020, the Bureau implemented Phase Three of the COVID-19 Action Plan for Bureau locations that 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. 14. Additionally, as part of this phase, and in accordance with the Pandemic Influenza contingency plan, all cleaning, sanitation, and medical supplies were inventoried. See https://www.bop.gov/resources/news/pdfs/20200324_bop_press_release_covid19_update.pdf. D. Action Plan for COVID-19 – Phase Four 15. On March 26, 2020, the Bureau implemented Phase Four of its Action Plan. In Phase Four, the Bureau revised its preventative measures for all institutions. Specifically, the agency updated its quarantine and isolation procedures to require all newly admitted inmates to the Bureau, whether in areas of sustained community transmission or not, to be assessed using a screening tool and temperature check (further explained below). This screening tool and temperature check applied to all new intakes, detainees, commitments, prisoners returned on writ from judicial proceedings, and parole violators, regardless of their method of arrival. Thus, all new arrivals to any Bureau institution—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. E. Action Plan for COVID-19 – Phase Five 16. On March 31, 2020, the Director of the Bureau ordered the implementation of
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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.5
B. During this time, to the extent practicable, inmates should still have access to programs and services that are offered under normal operating procedures, such as mental health treatment and education.
C. In addition, the 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 reevaluated and a decision made as to whether or not to return to modified operations.
E. Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and Trust Fund Limited Computer System (TRULINCS6) access.
See https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp.7 17. Phase Five has been implemented at USP Florence and currently remains in
effect. This means that, for a 14-day period beginning April 1, 2020 (to be reevaluated at the end
of the 14 days), all inmates at USP Florence are confined to their cells for the majority of the
day. Meals are delivered directly to inmates’ cells, as well as a limited number of commissary
items. Inmates are permitted to leave their cells in small groups on a rotating basis at designated
times in order to engage in activities such as showers, exercise, phones, and TRULINCS.
5 This modification to the Bureau’s action plan is based on health concerns, not disruptive inmate behavior. 6 TRULINCS is the internal Bureau computer and electronic message platform that inmates use to communicate with staff in the institutions and individuals in the community. Through this platform, inmates receive updates, notices, and can read inmate bulletins posted on the system by Bureau staff. 7 Additional information regarding Phase 5 of the Bureau’s Action Plan is available on the Bureau’s webpage (www.bop.gov).
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Inmates may be outside their cells in these small groups for approximately 2.5-3 hours per day, depending on the day of the week. During these time periods, inmates have been directed to maintain appropriate physical distancing. See, e.g., Att. A, FLP Movement Schedule.
F. Incident Command System 18. In addition to the above phases of the BOP’s official Action Plan, on March 11, 2020, the Bureau activated its “Incident Command System,” commonly referred to as a Command Center, at Central Office in Washington, D.C., in response to the COVID-19 pandemic. The Incident Command System is a standardized, all-hazard incident management tool. The Bureau has used the Incident Command System in the past to address a number of other disruptive incidents, such as fires, human and animal disease outbreaks, and hazardous materials incidents. The Incident Command System is structured in a manner that is intended to match the severity and complexity of the disruption for which it is activated. 19. Through the Incident Command System, the Bureau’s National Command Center, in conjunction with local command centers (to be discussed more below), works to mitigate the health and safety risks of the COVID-19 pandemic incident by providing accurate information to all Bureau institutions, holding Bureau institutions accountable for abiding by Bureau directives and guidance, and coordinating the Bureau’s national response. II. STEPS TAKEN AT FCC FLORENCE TO ADDRESS COVID-19 20. In addition to the steps taken at the national level, FCC Florence itself has also taken a number of additional measures in response to the COVID-19 pandemic. Throughout this section, when I refer to “FCC Florence” generally, I am referring to measures being taken at each of the FCC Florence institutions, including USP Florence. When I refer to USP Florence specifically, I am speaking only about that institution.
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A. FCC Florence Command Center 21. On March 13, 2020, FCC Florence activated its local Command Center at both ADX Florence and USP Florence. The local Command Centers work together and, in conjunction with the National Command Center, monitor, plan, and implement national directives and other procedures at FCC Florence. The FCC Florence Command Center is currently scheduled to remain active until May 13, 2020. That date may be extended, as needed. 22. As noted above, I serve on the FCC Florence Command Center as the Logistics Section Chief. In this role, I order, account for, and distribute critical medical supplies, oversee management of infectious disease control onsite, and coordinate the Complex’s enhanced staff and inmate screening. I also provide ongoing education to staff and inmates regarding steps that should be taken to prevent the introduction and spread of COVID-19 into FCC Florence. 23. FFC Florence has taken myriad steps to prevent the introduction and spread of COVID-19 into its facilities, including providing inmate and staff education; conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures; ordering necessary cleaning, testing, and medical supplies; engaging in enhanced cleaning and disinfecting measures; and taking a number of other preventative measures. I will discuss each in turn, below. B. Inmate and Staff Education relating to COVID-19 24. From the outset of the COVID-19 pandemic, FCC Florence 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. 25. For example, medical providers have conducted several town hall meetings with FCC Florence inmates advising them of the symptoms of COVID-19, instructing them to self-
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monitor for COVID-19 symptoms, and to immediately report such symptoms to sick call. See, e.g., Att. B, Inmate Town Hall Information (Mar. 10, 2020) (advising inmates as to the number of cases identified (through March 6, 2020), how COVID-19 spreads, symptoms of COVID-19, information to aid in slowing the spread of COVID-19, and treatment options for COVID-19). FCC Florence officials have also explained to both inmates and staff members best practices regarding personal hygiene to prevent the spread of COVID-19. Information sheets are posted in numerous locations around FCC Florence, including inmate housing units, the front lobby, on restroom doors, and within all departments. See Att. C, CDC COVID-19 Stop the Spread of Germs Factsheet.
26. Inmates have also been notified of this same information via information bulletins posted on TRULINCS in both English and Spanish. Executive staff members (department heads, Associate Wardens, and Wardens) also conduct weekly rounds in the housing units, and are available to answer questions from inmates regarding personal hygiene practices.
27. Recently, on April 1, 2020,8 Warden True issued an inmate bulletin to all inmates at FCC Florence regarding the new steps being taken at the institution to implement Phase Five of the Bureau’s Action Plan described above. See Att. E, Inmate Town Hall Bulletin (Apr. 1, 2020). In the bulletin, Warden True explained: “In response to COVID-19, the [Bureau] has instituted a comprehensive action plan that includes screening, testing, appropriate treatment, prevention, education, and infection control measures.” Id. at 1. The Warden advised the inmates
8 Incidentally, as a result of “numerous inmates [being] observed squaring off with one another during a heated argument” on March 26, 2020, at USP Florence, that institution was placed on lockdown on March 27, 2020. See Att. D, Lock Down Update (Mar. 27, 2020). While this decision was related to security measures, as opposed to COVID-19, it effectively placed USP Florence in a “Stay in Shelter” environment until March 30, 2020, even before Phase Five was formally implemented on April 1, 2020.
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that, beginning April 1, 2020, FFC Florence would be implementing a “Stay in Shelter” for 14 days.
28. The April 1, 2020, memo also asked inmates to “continue to increase [their] sanitation and hygiene efforts in the housing units and in [their] cells,” and advised inmates that staff have “increased the sanitation efforts throughout the institution.” Id. at 1-2.9 Likewise, the memo advised inmates that they “are encouraged to avoid touching [their] faces,” “wash [their] hands frequently with soap and water,” and “[p]ractice social distancing whenever practical.” Id.
29. Finally, Warden True informed inmates and staff that “[t]here are currently zero inmates that have been identified as having COVID-19 at FCC Florence. The institution modified operations and ‘Stay in Shelter’ is an effort to be proactive.” Id.
30. In addition to providing education to inmates, FCC Florence staff have been similarly educated regarding the importance of washing their hands, not touching their face, maintaining appropriate social distancing, and cleaning/disinfecting all equipment, including their uniforms.
31. Medical staff have also been trained regarding how to appropriately don and remove Personal Protective Equipment (PPE). This same training will be provided to Lieutenants this coming week, and potentially to other staff members in the weeks to come.
C. Screening for COVID-19 at FCC Florence 32. Due to the “Stay in Shelter” order implemented on April 1, 2020, inmate movement at FCC Florence is currently highly restricted. However, the following screening measures for both inmates and staff are currently in place, and will remain in effect even after the “Stay in Shelter” order is lifted, until Bureau officials determine that they are no longer
9 I will address these cleaning and sanitation efforts in greater detail below. 11

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necessary to prevent and/or manage the introduction or spread of COVID-19 in FCC Florence. 1. Inmates
33. As explained above, FCC Florence has been screening inmates for COVID-19 since early March 2020.
34. First, FCC Florence screens all inmates arriving at FCC Florence from other institutions or locations immediately upon their arrival. These screening procedures are as follows.
35. Inmates are screened for symptoms of COVID-19 (including fever, cough, and shortness of breath), as well as for “exposure risk factors,” including whether the inmate has traveled from, or through, any locations identified by the CDC as increasing epidemiologic risk within the past 14 days, or has had close contact with anyone diagnosed with COVID-19 in the past 14 days. See Att. F, Coronavirus Disease 2019 (COVID-19) Inmate Screening Tool. 35.
36. Following this initial screening, inmates are escorted to an intake/quarantine unit at FCI Florence (Pueblo Alpha Unit), where they are automatically quarantined for 14 days to ensure that they do not develop any symptoms consistent with COVID-19.
37. After the expiration of 14 days, and upon medical clearance, inmates may be released into general population at their designated institutions. Pueblo Bravo Unit at FCI Florence has been designated as an isolation unit for any inmates that are symptomatic of suspected COVID-19 and/or have tested positive for COVID-19. In these quarantine and isolation units, all staff must wear PPE.
38. These screening procedures apply to all incoming FCC Florence inmates, no matter which of the four institutions they are designated to be housed, and these inmates are initially screened at FCI Florence as opposed to their designated institutions. When inmates
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arrive at the institution, they are met by Health Services medical providers, who conduct this initial screening in a designated area at FCI Florence separate from other staff and inmates. Health Services medical providers wear PPE during these interactions.
39. This initial screening procedure at FCI Florence allows for screening to occur in a controlled environment, and further ensures that the rest of the inmate population is not exposed to newly-arrived inmates until they are properly screened and cleared by Health Services Department medical providers.
40. Second, in addition to screening incoming inmates, FCC Florence is also taking a number of measures to screen its current resident inmate population.
41. At risk Individuals. As the FCC Florence HSA and Logistics Section Chief, I was responsible for reviewing, in conjunction with a small team of medical providers, inmate medical records in order to determine which individuals at FCC Florence are considered “high risk” for COVID-19 pursuant to CDC guidelines. These guidelines can be found at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. Per CDC guidance, “high-risk” individuals include those over 65 and those with significant underlying medical conditions, such as chronic lung disease, moderate to severe asthma, liver disease, and diabetes. See id.
42. In order to identify which inmates at FCC Florence should be considered “high risk,” my team searched the Bureau’s medical records for (1) all inmates aged 55 and over10; and (2) all inmates who have been diagnosed with a condition identified by the CDC as being “high risk.”
10 We chose to search for inmates 55 and over, rather than 65 and older, in an abundance of caution and to be conservative in our approach to assessing risk.
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43. Based on this search, we compiled a list of individuals at FCC Florence considered to be “high risk” based on these established CDC criteria. During the week of March 16 through March 20, 2020, we screened each of these high-risk individuals for the same “exposure risk factors” identified above, and conducted temperature checks for all high-risk inmates. We also provided these inmates additional education regarding COVID-19 prevention, and advised them to seek medical care immediately if they began to develop any symptoms.
44. I personally reviewed the medical records of the Plaintiff in this case, Edward Nellson, and asked an FCC Florence physician to independently review these records as well. Based on this review, both the physician and I determined that Mr. Nellson does not fit the criteria for a “high risk” individual under the established CDC criteria. He is 41 years old, and has not been diagnosed with any condition identified by the CDC as placing individuals at a higher risk of serious complications from COVID-19.
45. Inmates with work details. FCC Florence is also conducting enhanced screening for all inmates with ongoing work details, such as food service and cleaning orderlies. These functions are considered to be “essential” by FCC Florence. Each of these inmates is screened for illness both before and after each of their assigned work details. This includes being screened for any symptoms of illness and having their temperature taken. Furthermore, many cleaning orderlies are currently assigned only to the units in which they already reside and thus do not interact with staff or inmates in other units during the course of performing their duties.
46. General population. All inmates are encouraged to self-monitor and to report symptoms of illness to unit staff either orally or via a written copout. Medical staff are required to be present in each USP Florence housing unit at least twice per day in order to conduct sick call and pill line. The presence of medical staff affords inmates further opportunity to report any
14

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medical concerns. In addition, unit staff and other department representatives (including staff from education, commissary, psychology, and recreation) are required to conduct daily rounds in each USP Florence housing unit in order to ensure that the inmate population remains safe and healthy. If an inmate has an issue that he wants to bring to the staff’s attention, he can do so via a written request, commonly known as a cop-out, at any time, or during these rounds with staff.
47. Once there is a positive inmate case of COVID-19 at FCC Florence, should that occur, all inmates will be screened daily through temperature and symptom checks.
48. Any inmate who presents with symptoms consistent with COVID-19 will be evaluated by a medical provider in the Health Services Department. Based upon this evaluation, a determination will be made whether isolation and/or testing is appropriate. Bravo Bravo Unit at USP Florence has been designated as the isolation unit for inmates who are symptomatic and/or test positive for COVID-19 at that particular institution.
49. If any inmate is isolated, the inmates housed in the same housing unit with him will be quarantined pending results of a COVID-19 test provided to the inmate, or 14 days, whichever is sooner.
50. Inmates may also be placed in a quarantine or isolation setting if they are exposed to a person with COVID-19, where they will be monitored daily for a period of at least 14 days. Quarantine or isolation will only be discontinued once 14 days elapse without the inmate(s) developing new symptoms.
51. FCC Florence Health Services medical providers are prioritizing immediate medical care for anyone who claims symptoms indicative of a COVID-19 infection.
2. Staff and Visitors 52. Since March 19, 2020, all individuals entering the FCC complex (including staff,
15

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delivery drivers, or any other visitors) must undergo a health screening upon entry. This includes having their temperature taken and being asked a number of questions to evaluate their risk of exposure, as well as whether they have been experiencing any symptoms of illness. See Att. G, Coronavirus Disease 2019 (COVID-19) Staff Screening Tool.
53. The individuals conducting this health screening at the front entrance of FCC Florence are authorized to deny entry to any individual if he or she has a body temperature of 100.4 degrees Fahrenheit, or above, or reports other symptoms consistent with COVID-19 (although they may consult with FCC Florence medical providers in advance of the decision to deny entry).
54. This screening applies to all staff and visitors, including those who leave the grounds of FCC Florence even for a short duration of time, such as to purchase lunch.
55. FCC Florence employees have also been educated regarding the importance of staying home if they are feeling ill, and are required to self-report any COVID-19 exposure (known or suspected) as well as any positive COVID-19 test. If a staff member is tested for COVID-19, they are not permitted to return to work until after receiving the results of the test.
D. COVID-19 Testing at FCC Florence 56. The CDC has identified four “priority levels” for testing individuals with a suspected COVID-19 infection. See Att. H, CDC Priorities for Testing Patients with Suspected COVID-19 Infection. Priority levels one through three include hospitalized patients and healthcare workers with symptoms (Priority Level 1); symptomatic patients in long-term care facilities, individuals 65 years or older, individuals with underlying conditions, and first responders (Priority Level 2); and symptomatic critical infrastructure workers, individuals who do not meet any of the criteria in Priority Levels 1 or 2, healthcare workers and first responders, and individuals with mild symptoms in communities experiencing high numbers of COVID-19
16

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hospitalizations (Priority Level 3). Id. The fourth, or non-priority level, is for individuals without symptoms. Id.
57. The CDC has made clear that “[n]ot everyone needs to be tested for COVID-19,” and “decisions about testing are at the discretion of state and local health departments and/or individual clinicians.” See cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html (last visited on Apr. 2, 2020).
58. At FCC Florence, the decision whether to test an inmate for COVID-19 is made by Bureau medical providers based on a number of criteria, including but not limited to: (1) the nature and severity of the symptoms; (2) the inmate’s potential exposure to COVID-19; (3) whether the inmate is considered “high-risk,” and (4) whether the inmate is on a work detail, such as food service, that requires the inmate to interact with other inmates or staff.
59. To date, two FCC Florence inmates have been tested for COVID-19. One of those tests was negative. The other test remains pending.
60. FCC Florence has over 100 COVID-19 test kits currently in stock, with the ability to request more tests from its vendor on an as-needed basis. Because of the nationwide shortage of tests, FCC Florence’s vendor has chosen to allocate tests strategically, and to send its tests to the locations and institutions where tests are most needed. Because FCC Florence does not currently have any known infections, its vendor will not provide additional tests for FCC Florence to stockpile unless and until there is a demonstrated need for it. Should such a need arise in the future, FCC Florence has the ability to request additional tests and to receive them in a matter of days.
E. Additional Measures to Combat COVID-19. 61. In addition to the above steps, FCC Florence has taken a number of additional
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measures to combat COVID-19. 62. First, all inmates have access to sinks, water, and soap at all times. New inmates
admitted to any institution at FCC Florence automatically receive soap, and all inmates may receive new soap weekly. For inmates without sufficient funds to purchase soap in the commissary, soap is provided at no cost to the inmate. USP Florence inmates are able to wash their clothing and linens at least once weekly.
63. Second, all common areas in inmate housing units are cleaned daily, and are typically cleaned by inmate orderlies multiple times throughout the day, with a designated disinfectant that kills human coronavirus. USP Florence has made this disinfectant available to all inmates so that they may use it to clean their own cells on a regular basis. Common areas outside inmate living areas, including the USP Florence, lobby, bathrooms, cafeteria, etc., are also cleaned with the same disinfectant on a daily basis (and often multiple times per day).
64. Each housing unit has been stocked with cleaning supplies for use by inmate orderlies and other inmates to clean both the common areas and their cells on a daily basis.
65. FCC Florence has limited the number of in-person meetings scheduled onsite for staff. If such meetings take place, they are limited to 10 people and must be conducted in areas permitting individuals to maintain an appropriate distance from one another. FCC Florence has also implemented a video-conferencing system to replace in-person meetings to the extent practicable.
66. Correctional staff are required to disinfect all common equipment, such as keys and radios, upon obtaining these items from the supply room and again upon their return. Staff also have regular, consistent access to soap and hand sanitizer.
67. Correctional staff have been provided PPE to be used in appropriate locations
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throughout FCC Florence such as quarantined areas, isolation units, and screening sites. FCC Florence has sufficient PPE on hand, including N-95 respirator masks, surgical masks, and rubber gloves, to meet its current and anticipated needs, as well as the ability to order additional PPE should the need arise.
68. On April 5, 2020, all inmates and staff were provided protective face masks for daily use.
69. Beginning April 6, 2020, all staff members will be restricted to working only in a single designated institution within the FCC Florence complex. For example, staff members designated to USP Florence will not be permitted to enter FCI Florence, and vice versa. III. CONCLUSION
70. In sum, the Bureau and FCC/USP Florence take the COVID-19 pandemic extremely seriously and have implemented numerous measures to proactively combat the spread of this disease to staff members and the inmate population. The various phases of the Bureau’s Action Plan have been designed and implemented in a systemic manner both nationally and at FCC/USP Florence in order to mitigate the spread of COVID-19.
71. In addition to the steps taken at the national level, FCC Florence itself has taken a number of measures to prevent the introduction and spread of COVID-19 in the complex.
72. To date, no inmates or staff members11 at FCC Florence have been diagnosed with COVID-19.
73. The Bureau and FCC/USP Florence remain flexible in their ability to receive
11 FCC Florence does not provide testing for Bureau staff members. They are responsible for seeking their own medical care in the community. However, as explained above, any staff member who has tested positive for COVID-19 and/or is symptomatic of suspected COVID-19 is not allowed on the grounds of FCC Florence.
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guidance from the CDC and other health organizations and to modify their actions to best respond to this pandemic, according to the quickly shifting needs on the ground.
Pursuant to the provisions of 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my information, knowledge, and belief. Executed on this 6th day of April 2020, in Florence, Colorado.
s/ Shari Himlie___ Shari Himlie Health Services Administrator FCC Florence Federal Bureau of Prisons
Enclosures Att. A, FLP Movement Schedule Att. B, Inmate Town Hall Information (Mar. 10, 2020) Att. C, CDC COVID-19 Stop the Spread of Germs Factsheet Att. D, Lock Down Update (Mar. 27, 2020) Att. E, Inmate Town Hall Bulletin (Apr. 1, 2020) Att. F, Coronavirus Disease 2019 (COVID-19) Inmate Screening Tool Att. G, Coronavirus Disease 2019 (COVID-19) Staff Screening Tool Att. H, CDC Priorities for Testing Patients with Suspected COVID-19 Infection
20

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Attachment A

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Attachment B

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COVID‐19 TOWN HALL INFORMATION FOR INMATES
(as of 3/6/20)
What is coronavirus (COVID‐19)?  Coronaviruses are a large family of viruses common in people and animals. COVID‐19 is a novel (new) coronavirus that probably emerged from an animal source and is now spreading person to person. It causes respiratory illness and is being identified in a growing number of locations, including Colorado.
How many cases have been identified?  Although the situation and numbers are rapidly changing, here are the numbers as of 3/6/20. o 101, 598 cases in 70 different locations internationally. o 256 cases in the U.S., with 2 cases identified in Colorado.
How does COVID‐19 spread?  This is a respiratory illness, and it is thought to spread mainly between people who are in close contact with one another (within 6 feet) when a person coughs or sneezes. It also may be possible that a person can get it by touching a surface or object that has the virus on it, and then touching their eyes, nose, or mouth.
What are the symptoms of COVID‐19?  Symptoms include fever, cough, and shortness of breath. Some people have no symptoms at all.  While information so far suggests that most cases have been mild (80%), older adults and people with severe chronical medal conditions like heart, lung or kidney disease seem to be at higher risk for more serious illness.
How can you help in slowing the spread of COVID‐19, as well as other illnesses like the flu. EVERYONE HAS A PART TO PLAY IN SLOWING THE SPREAD. PRACTICE EVERYDAY PREVENTIVE BEHAVIORS!
 Wash your hands with soap and water often, vigorously scrubbing all surfaces for at least 20 seconds. The hand sanitizer available in commissary is also effective—make sure to cover all surfaces of your hands, rubbing them together until they feel dry.
 Avoid touching your eyes, nose, or mouth with unwashed hands (most people touch their faces at least 23 times per hour).
 Cover your coughs and sneezes with the crook of your arm or a tissue.  Routinely clean and disinfect ‘frequently touched’ surfaces in your housing units and cells to
include keyboards, phones, desks, door handles, light switches, bathroom fixtures, stair rails, etc.
o The disinfectant safety issues is effective.
Is there a vaccine? Treatment?  Currently there is no vaccine. The best way to protect yourself is to do what we should be doing each and every day (see above). Currently there is no treatment, but there is medication to treat some symptoms (Tylenol, Advil, etc.). For additional information related to COVID‐19, contact Health Services.

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Attachment C

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STOP THE SPREAD OF GERMS

Help prevent the spread of respiratory diseases like COVID-19.

Avoid close contact with people who are sick.

Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

Clean and disinfect frequently touched objects and surfaces.
Avoid touching your eyes, nose, and mouth.
Stay home when you are sick, except to get medical care.
Wash your hands often with soap and water for at least 20 seconds.
For more information: www.cdc.gov/COVID19
CS314915-A

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19 C VID
CORONAVIRUS

Share Facts About COVID-19

DISEASE

Know the facts about coronavirus disease 2019 (COVID-19) and help stop the spread of rumors.

FACT Diseases can make anyone sick

1

regardless of their race or ethnicity.

People of Asian descent, including Chinese Americans, are not more likely to get COVID-19 than any other American. Help stop fear by letting people know that being of Asian descent does not increase the chance of getting or spreading COVID-19.

FACT Some people are at increased risk of
2 getting COVID-19.
People who have been in close contact with a person known to have COVID-19 or people who live in or have recently been in an area with ongoing spread are at an increased risk of exposure.

FACT Someone who has completed

3

quarantine or has been released from isolation does not pose a risk of

infection to other people.

For up-to-date information, visit CDC’s coronavirus disease 2019 web page.

CS 315446-A 03/06/2020

FACT You can help stop COVID-19

4

by knowing the signs and symptoms:

• Fever • Cough

• Shortness of breath

Seek medical advice if you

• Develop symptoms

AND

• Have been in close contact with a person known to have COVID-19 or if you live in or have recently been in an area with ongoing spread of COVID-19.

FACT There are simple things you can
5 do to help keep yourself and others healthy.
• Wash your hands often with soap and water for at least 20 seconds, especially after blowing your nose, coughing, or sneezing; going to the bathroom; and before eating or preparing food.
• Avoid touching your eyes, nose, and mouth with unwashed hands.
• Stay home when you are sick.
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
For more information: www.cdc.gov/COVID19

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Attachment D

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Attachment E

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Attachment F

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CORONAVIRUS DISEASE 2019 (COVID-19) INMATE SCREENING TOOL

1. Assess the Risk Of Exposure

 Yes  No Traveled from, or through, any of the locations identified by the CDC as increasing epidemiologic risk within the last 14 days? Link to CDC Criteria
 Yes  No Had close contact with anyone diagnosed with the COVID-19 illness within the last 14 days?
If the answer to ALL the above risk of exposure questions is NO, then STOP here and proceed with normal intake. If the answer to ANY of the above risk of exposure questions is YES, then immediately assess symptoms.

2. Assess Symptoms  Yes  No Fever (Fever may not be present in some patients, such as elderly, immunosuppressed,
or taking certain medications. Fever may be subjective or objective).  Yes  No Cough  Yes  No Shortness of Breath (SOB)

Date of Onset:

3. Implement Infection Prevention Control Measures if YES to the above questions in (2).

3a. The Symptomatic Patient
If the patient has any symptoms, implement Standard, Contact, and Airborne Precautions with Eye Protection
 Report case promptly to facility leadership, infection prevention and control (IPC), public health and Regional and Central Office QIIPC Consultants.
 Place a surgical mask on the patient and minimize proximity to staff and inmates  All staff escorting, evaluating, or in close contact (6 ft.) with the patient should perform hand hygiene,
put on gloves, gown, fit-tested respirator (N-95), goggles or face shield and gloves before room entry or inmate contact. Inmate will wear a surgical mask. Doffing: gloves, gown, exit room, doff face shield then N-95 and wash hands.  Escort patient to a certified Airborne Infection Isolation (AII) room.  If no AII room is available, isolate in room with door closed and preferably air is exhausted outside.  Prepare for transport to a designated referral healthcare facility in coordination with the local public health authority (do not call for transport service without prior notification and escort in place to move inmate).  Minimize and keep a log of all persons interacting with (6ft.) or caring for, the inmate.  Once the AII room is empty for two hours, it can be cleaned and disinfected with an EPA registered disinfectant (Emerging viral pathogens claim), by a person in proper PPE.  Waste disposal: Double bag trash as hazardous waste. Linens: Double bag in linen hazard bag for washing in central laundry
3b. The Asymptomatic Patient
If the patient has no symptoms house in a single cell, and implement Standard, Contact and Droplet Precautions with Eye Protection
 Report case to facility leadership, QIICP, public health and Regional and Central Office QIIPC Consultants.  House patient in a single cell. The preferred location is within Health Services. If unable to house patient in a single cell
contact Regional and Central Office Infection Prevention and Control Consultants.
 Limit # of persons interacting with inmate. Utilize social distancing (6 ft.).  Document a daily symptom assessment and temperature (Inmate can self-monitor with disposable thermometer or use
non-contact thermometer. Utilize disposable food trays. Have inmate clean and disinfect room daily with disposable towels, if possible. Trash will be double bagged out of room.
 Staff entering room will perform hand hygiene, wear a gown, surgical mask, goggles or face shield and gloves. Inmate will
wear a surgical mask. Remove PPE, except face shield and mask at exit. Outside room, remove mask and wash hands.
 Continue modified housing and observation procedures until 14 days after the last possible exposure date.  If at any time the patient becomes symptomatic, implement the steps in 3a – The Symptomatic Patient.

Inmate Name (Last, First): ____________________________________Registration # __________________ Institution: ______________________________________________________________________________ Provider Name/Signature: _________________________________________ Date: ____________________
February 2020, Version 2.0

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Attachment G

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CORONAVIRUS DISEASE 2019 (COVID-19) STAFF SCREENING TOOL DATE:_____________________

1. Assess the Risk Of Exposure

 Yes  No  Yes  No

Had close contact with anyone diagnosed with the COVID-19 illness within the last 14 days? If YES, Dates of Exposure:__________________________
Deployed for COVID-19 response and back from deployment within the last 14 days?

2. Assess Symptoms

A.  Yes  No Fever (temperature ≥ 100.4○F) or Chills

B.  Yes  No Shortness of Breath

C.  Yes  No

Cough: (Check All that Apply)

 Dry  Congested  Sputum Production

 New Onset

 Chronic

D.  Yes  No Nasal Congestion

E.  Yes  No History of Seasonal Allergies

Date of Onset:

3. Travel History (in the past 14 days)

Geographic Location Visited

Dates of Visit (Beginning Date => Ending Date)

4. Perform a temperature check ______◦F 5. Instructions
If the staff member’s temperature is ≥ 100.4○F, they will be denied entry to the facility and put on leave. Contact the Occupational Safety & Health Branch for either or both of the following:
□ If the staff member answers Yes to Any Section 1 questions (exposure risk), with or without symptoms, □ If the staff member answers Yes to Any Section 2 questions A thru C (symptoms)
Once Completed, please submit this information to the Occupational Safety & Health Branch of Health
Services Division by email: BOP-HSD/EmployeeHealth@bop.gov

Staff Name (Last, First): _________________________________ Year of Birth (yyyy): ____________

Institution: _______________________________________

State: ______________________

March 2020, Version 2.6

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Attachment H

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Coronavirus PRIORITIES FOR TESTING PATIENTS
COVID-19 WITH SUSPECTED COVID-19 INFECTION

COVID-19 Symptoms: Fever, Cough, and Shortness of Breath

PRIORITY 1
Ensures optimal care options for all hospitalized patients, lessen the risk of healthcare-associated infections, and maintain the integrity of the U.S. healthcare system
• Hospitalized patients • Healthcare facility workers with symptoms

1

2

PRIORITY 2
Ensures those at highest risk of complication of infection are rapidly identified and appropriately triaged
• Patients in long-term care facilities with symptoms • Patients 65 years of age and older with symptoms • Patients with underlying conditions with symptoms • First responders with symptoms

PRIORITY 3
As resources allow, test individuals in the surrounding community of rapidly increasing hospital cases to decrease community spread, and ensure health of essential workers
• Critical infrastructure workers with symptoms • Individuals who do not meet any of the above categories with
symptoms • Healthcare facility workers and first responders • Individuals with mild symptoms in communities experiencing high
numbers of COVID-19 hospitalizations

3

NON- NON-PRIORITY

PRIORITY

• Individuals without symptoms

For more information visit: coronavirus.gov

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Exhibit 2
Supplemental Declaration of Shari Himlie

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a Class of similarly-situated persons,
Plaintiff, v. WARDEN J. BARNHART, in his individual and official capacities, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants.
SUPPLEMENTAL DECLARATION OF SHARI HIMLIE
I, Shari Himlie, pursuant to 28 U.S.C. § 1746, and based upon my personal knowledge and information made known to me from official records reasonably relied upon by me in the course of my employment, hereby declare as follows relating to the above-titled matter. All attachments to this declaration are true and accurate copies of Federal Bureau of Prisons (Bureau) records maintained in the ordinary course of business.
1. This declaration is a supplement to my April 6, 2020, declaration (Doc. 17-1). 2. As referenced in my prior declaration, inmate Edward Nellson, Federal Register No. 31408-007, is currently incarcerated at the United States Penitentiary (USP) in Florence, Colorado. 3. My prior declaration explained the many steps that the Bureau has taken to address the global pandemic of COVID-19. Id. at ¶¶ 5-19. I also discussed the many actions taken locally at the Federal Correctional Complex (FCC) in Florence, Colorado, and USP Florence to prevent the introduction and spread of COVID-19 throughout the complex. Id. at ¶¶ 20-69. All of the steps taken at FCC Florence, as outlined in my prior declaration (id. at ¶¶ 24-

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69), are still in place, except as enhanced by additional safeguards that will be discussed below. 4. The focus of this declaration will be to explain the additional steps that the
Bureau, FCC Florence, and USP Florence, have implemented since April 6, 2020. 5. I continue to be employed in my role as the FCC Florence Health Services
Administrator and the Logistics Section Chief for the FCC Florence Command Center. I continue to be involved on a daily basis in the identification, planning, coordination, and implementation of all Bureau directives for preventing the spread of COVID-19 at FCC Florence, including USP Florence. Through these dual roles, I have knowledge of both the Bureau’s national directives relating to COVID-19 and the additional steps that FCC Florence has specifically taken to combat COVID-19 within FCC Florence. Accordingly, through these official duties, I have personal knowledge regarding the additional measures taken since April 6, 2020, discussed below, that have been implemented both Bureau-wide and at FCC Florence in order to prevent and limit the spread of COVID-19. I. NATIONAL STEPS TAKEN BY BUREAU TO ADDRESS COVID-191
6. As of April 6, 2020, the date of my prior declaration, the Bureau had implemented Phase Five of its COVID-19 Action Plan. Id. at ¶¶ 16-17. As I explained, during Phase Five, all inmates in every Bureau institution were confined to their cells for the majority of each day in order to decrease the spread of the virus. Id. Phase Five remained in place through April 12, 2020.
7. On April 13, 2020, the Director of the Bureau ordered the implementation of Phase Six of the Bureau’s COVID-19 Action Plan. See Att. A, Bureau Press Release (Apr. 14,
1 As previously stated, the Bureau’s national guidance has undergone a number of changes in response to the evolving threat of COVID-19. The Bureau has established a COVID-19 resource section on its public webpage which is available at: https://www.bop.gov/coronavirus/. This webpage includes updates on the Bureau’s response to COVID-19 and positive COVID-19 tests among inmates and staff at Bureau institutions nationwide.
2

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2020); Att. B, Bureau Director Memorandum to Inmate Families and Friends (Apr. 21, 2020) (explaining COVID-19 safeguards at all Bureau institutions during Phase Six). Phase Six extends all measures from Phase Five, including enhanced modified operations for all institutions, until May 18, 2020. Id. The extension of the modified operations for all Bureau institutions was continued to minimize inmate movement and further decrease the spread of COVID-19.
8. Phase Six has been implemented at USP Florence and currently remains in effect. This means that, until at least May 18, 2020, all inmates at USP Florence remain confined to their cells for the majority of the day. Meals are delivered directly to inmates’ cells, as well as a limited number of commissary items. Staff have been directed to wash their hands frequently and take other precautions, such as wearing gloves, when interacting with inmates. Inmates are permitted to leave their cells in small groups on a rotating basis at designated times in order to engage in activities such as showers, exercise, phones, and TRULINCS. Inmates may be outside their cells in these small groups for approximately 2.5-3 hours per day, depending on the day of the week. During these time periods, inmates have been directed to maintain appropriate physical distancing.2 See Doc. 17-1 at ¶ 17. Inmates may also remain in their assigned cells during this period of time as they are not compelled to use the law library, use communal showers, or otherwise be in the common areas of the housing unit, if they simply choose to stay in their cells. II. STEPS TAKEN AT FCC FLORENCE TO ADDRESS COVID-19
9. In addition to the steps taken at the national level, since April 6, 2020, FCC
2 As previously mentioned, to help ensure that inmates maintain social ties during this time, the Bureau increased inmates’ telephone allotment to 500 minutes per month (from 300 minutes per month). Since April 9, 2020, inmates are no longer charged to make telephone calls during the COVID-19 emergency. See Att. C, Director Memorandum to Bureau Inmates (Apr. 8, 2020).
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Florence itself has also taken a number of additional measures in response to the COVID-19 pandemic. As before, when I refer to “FCC Florence” generally, I am referring to measures being taken at each of the FCC Florence institutions, including USP Florence. When I refer to USP Florence specifically, I am speaking only about that institution.
A. FCC Florence Command Center 10. The FCC Florence Command Center continues to remain active at both ADX Florence and USP Florence, as well as the North Central Regional Command Center and the Central Office Command Center. The local Command Centers work together and, in conjunction with the National Command Center, monitor, plan, and implement national directives and other procedures at FCC Florence. The FCC Florence Command Center is currently scheduled to remain active until at least May 18, 2020. That date may be extended, as needed. The FCC Florence Command Center is staffed from 6:00 a.m. to 6:00 p.m. each day of the week. 11. As noted above and in my previous declaration, I serve on the FCC Florence Command Center as the Logistics Section Chief. In this role, I continue to order, account for, and distribute critical medical supplies, oversee management of infectious disease control onsite, and coordinate the enhanced staff and inmate screening at FCC Florence. I also provide ongoing education to staff and inmates regarding steps that should be taken to prevent the introduction and spread of COVID-19 into FCC Florence. B. Additional Measures to Combat COVID-19 at FCC Florence 12. Again, the various measures that I explained in my prior declaration remain in place at FCC Florence. See Doc. 17-1 at ¶¶ 24-69. FCC Florence and USP Florence continue to take many additional steps to prevent the introduction and spread of COVID-19 into its institutions, including providing inmate and staff education; conducting inmate and staff
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screening; putting into place testing, quarantine, and isolation procedures; ordering necessary cleaning, testing, and medical supplies; engaging in enhanced cleaning and disinfecting measures; and taking a number of other preventative measures.
13. For instance, in my prior declaration, I explained the screening process of inmates who are assigned to a work detail outside of their assigned housing unit. See Doc. 17-1 at ¶ 45. To explain further, this enhanced screening is conducted inside of the Health Services Department at USP Florence, as opposed to the housing units. During this enhanced screening, each inmate undergoes a temperature check and symptom check by a medical provider. This screening occurs at the beginning and end of each work detail taking place outside the inmate’s housing unit.
14. As touched upon in my prior declaration, if an inmate is assigned to a work detail in the same housing unit in which he resides (such as a cleaning orderly), no additional screening occurs because that inmate is not in contact with other inmates outside of his assigned housing unit. Mr. Nellson is currently assigned as a unit orderly in Echo Unit at USP Florence. As such, he does not go through the enhanced screening procedures outlined above because he does not leave the housing unit to perform his assigned work duties. However, he and other inmates who remain in the housing units are still able to communicate any medical concerns to medical providers conducting twice daily rounds/sick call within the housing units. If an inmate requires additional medical attention, he will be reviewed and triaged for additional care, to include being evaluated by a physician, if clinically indicated.
15. Also as explained in my previous declaration, all inmates at USP Florence have access to sinks, water, and soap, to ensure proper hand hygiene. Soap is available through commissary purchases or, if the inmate does not have sufficient money to purchase soap through
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commissary, through free soap provided by the institution on a weekly basis. See Doc. 21-1 at ¶ 5 (explaining the procedures for inmates to request additional soap). In addition, each housing unit at USP Florence is stocked with cleaning supplies for use by inmate orderlies and other inmates to clean both the common areas and their own cells on a daily basis. These cleaning supplies include a disinfectant that kills human coronavirus.
16. Furthermore, from the outset of the COVID-19 pandemic, and continuing currently, FCC Florence officials have also 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.
17. For example, on April 7, 2020, following the issuance of face coverings/masks to the inmate population at FFC Florence, I issued an inmate bulletin to all FCC Florence inmates. See Att. D, Inmate Bulletin – Face Masks (Apr. 7, 2020). In this bulletin, I explained proper mask-wearing procedures and reminded the inmates to frequently wash their hands with soap and water. Id.
18. On April 14, 2020, Complex Warden True issued an inmate bulletin to all inmates at FCC Florence regarding the implementation of Phase Six. See Att. E, Inmate Bulletin – Phase Six (Apr. 14, 2020).
19. Beginning on April 15, 2020, all FCC Florence staff have been required to wear face coverings/masks at all times when in the common areas of the institution when six-foot social distancing measures are unable to be practiced. All staff are required to keep a mask with them at all times in the event of an emergency response where social distancing measures cannot be maintained. Staff working in isolation or quarantine housing units are still required to wear appropriate personal protective equipment in accordance with Centers for Disease Control and
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Prevention (CDC) guidelines. 20. Likewise, on April 15, 2020, Warden Barnhart at USP Florence, issued an inmate
bulletin for all USP Florence inmates reiterating the CDC-recommended social distancing standards. See Att. F, Inmate Bulletin – Social Distancing (Apr. 15, 2020). Warden Barnhart stated, “During periods where there is direct inmate and staff interactions and the CDC recommended six feet of social distancing cannot be maintained, use of the mask that you were provided is mandated. This applies to all escorts, medical visits, anywhere that you are in close proximity to staff or other inmates.” Id.
21. Also on April 15, 2020, throughout the four institutions at FCC Florence, additional color copies of two CDC campaign posters were posted in all housing units and other areas of the institutions that are frequented by staff and inmates. See Att. G, CDC Stop the Spread of Germs and Wash Your Hands Factsheets.
22. On April 16, 2020, Warden Barnhart issued another inmate bulletin for all USP Florence inmates, mandating the wearing of face coverings for all inmates “with the rare exceptions of when necessary for identification, when the individual is unable to personally remove the mask, or the individual has chronic conditions associated with difficulty breathing.” See Att. H, Inmate Bulletin – Face Masks (Apr. 16, 2020). These cloth face masks for inmates meet the CDC recommendations on face coverings for non-medical providers. See Cloth Face Coverings: Questions and Answers, CDC; https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/cloth-face-cover-faq.html (last visited on Apr. 22, 2020).
23. Each day, beginning on April 16, 2020, at 6:00 a.m., the following statement is announced from the Main Control Center at each institution: “At this time, staff and inmates are reminded to practice proper hand washing techniques. Ensure that you are using soap and warm
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water and wash thoroughly.” This announcement is made daily at 6:00 a.m., 9:00 a.m., noon, 3:00 p.m., 6:00 p.m., and 9:00 p.m.
24. To date, two FCC Florence inmates have been tested for COVID-19. Both of these tests were negative for COVID-19.
25. Currently, FCC Florence has approximately 155 COVID-19 test kits in stock, with the ability to receive more test kits from its vendor in a matter of days. An additional 60 test kits have been ordered and are expected to be delivered this week. As explained in my previous declaration (Doc. 17-1 at ¶¶ 56-60), the determination whether to test an inmate for COVID-19 is made by Bureau medical providers based on a number of criteria. To date, the CDC has not altered its guidance that “[n]ot everyone needs to be tested for COVID-19,” and “decisions about testing are at the discretion of state and local health departments and/or individual clinicians.” See cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html (last visited on Apr. 22, 2020). III. CONCLUSION
26. In sum, the Bureau and FCC/USP Florence continue to take this COVID-19 pandemic extremely seriously and have implemented, and continue to implement, numerous and additional measures to proactively prevent and combat the spread of this disease to staff members and the inmate population. The various phases of the Bureau’s Action Plan, including the current Phase Six, have been designed and implemented in a systematic manner both nationally and at FCC/USP Florence in order to mitigate the spread of COVID-19.
27. To date, no inmates or staff members at FCC Florence have been diagnosed with COVID-19.
28. The Bureau and FCC/USP Florence remain flexible in their ability to receive
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guidance from the CDC and other health organizations and to modify their actions to best respond to this global pandemic, according to the national and local needs.
Pursuant to the provisions of 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my information, knowledge, and belief.
Executed on this 22nd day of April 2020, in Florence, Colorado. s/ Shari Himlie Shari Himlie Health Services Administrator FCC Florence Federal Bureau of Prisons
Enclosures Att. A Bureau Press Release (Apr. 14, 2020) Att. B, Bureau Director Memorandum to Inmate Families and Friends (Apr. 21, 2020). Att. C Director Memorandum to Bureau Inmates (Apr. 8, 2020) Att. D Inmate Bulletin – Face Masks (Apr. 7, 2020) Att. E Inmate Bulletin – Phase Six (Apr. 14, 2020) Att. F Inmate Bulletin – Social Distancing (Apr. 15, 2020) Att. G CDC Stop the Spread of Germs and Wash Your Hands Factsheets Att. H Inmate Bulletin – Face Masks (Apr. 16, 2020)
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Attachment A

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FOR IMMEDIATE RELEASE April 14, 2020

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

Bureau of Prisons COVID-19 Action Plan: Phase Six
WASHINGTON - On Monday, April 13, 2020, the Director of the Bureau of Prisons (BOP) ordered the implementation of Phase 6 of its COVID-19 Action Plan. This plan extends all measures from Phase 5, to include enhanced modified operations for all institutions, until May 18, 2020. The Bureau of Prisons will continue to provide daily updates and information on actions related to COVID-19 at www.bop.gov/coronavirus/index.jsp. Additional information about the Federal Bureau of Prisons can be found at www.bop.gov.
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Attachment B

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Office of the Director

U.S. Department of Justice Federal Bureau of Prisons
Washington, D.C. 20534
April 21, 2020

MEMORANDUM FOR INMATE FAMILIES AND FRIENDS

FROM: SUBJECT:

M.D. Carvajal, Director COVID-19 Safeguards

As Director of the Bureau of Prisons (BOP), it is my responsibility to ensure the safety, security and orderly operation of 122 federal prisons, as well as the safety and security of approximately 36,000 staff and more than 170,000 federal inmates, including those housed in privately managed or community-based facilities. I want to take this opportunity to share with you, the families and friends of someone in our custody, a message about what we are doing to safeguard the health of your loved one during the COVID-19 pandemic. I understand the anxiety you are feeling.
First, I want to thank you for your understanding and cooperation as we diligently work to try and prevent the introduction of coronavirus in our facilities and as we try to stop its spread inside those facilities that have been affected. No decision, regardless of how large or small, is taken lightly or done without considerable thought.
For example, we understand the hardship of not being able to see your loved ones, but their safety, and the safety of our staff, is our priority. Stopping social visits has had a major impact on keeping you, and them, safe and we’re helping to keep the community safe, too. To help compensate, the amount of monthly phone minutes allowed was increased and, while collect calls will be charged accordingly, free phone and video calls were approved. The BOP recognizes how important it is for families to keep in touch, especially during these uncertain times. You need to know how your loved one is doing and they need to know how the virus is affecting you and their community.
As we continue to revise and update our response to COVID-19 based on the most recent guidance from the World Health Organization and the

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Centers for Disease Control (CDC), I must thank every staff member for their dedication to our mission, for their relentless efforts to reduce the spread of the coronavirus both inside and outside our institutions, and for their commitment to keeping each inmate safe and well.
As I write this message, 45 BOP facilities and 14 Residential Reentry Centers have been affected nationwide. Although planning and preparations have been going on since January, and BOP has fully implemented its COVID-19 Action Plan, no amount of preparation could have left our institutions unaffected. The first positive inmate case was reported on March 21, 2020, and the first positive staff case was reported the very next day. Sadly, we have also experienced the death of 22 inmates, all with pre-existing medical conditions listed by the CDC as risk factors for developing the more severe COVID-19 disease.
All individuals entering our facilities, including staff, are screened and temperature checked. This is a critical step to ensure we reduce the risk of introducing and spreading the virus inside our facilities. We also implemented various screening efforts along with quarantine and isolation procedures for the inmate population to slow the spread of the virus. As of April 1, we made the decision that all inmates, in every institution, will be secured in their assigned cells/quarters in order to decrease the spread of the virus. Again, we did not make this decision lightly, and I know it can be difficult for everyone. But just like in communities nationwide who have been required to shelter in place, we feel the safest course to prevent the spread of the virus is to have inmates shelter in place as well. These actions will remain in place until May 18, 2020, at which time they will be reevaluated.
A new measure we have implemented in managing the evolving pandemic for institutions with active COVID-19 transmission includes feeding all inmates in their units. The CDC recently provided guidance specifically for correctional and detention facilities recommending all staff and inmates be issued, and strongly encouraged to wear, an appropriate face covering when in public places and when social distancing cannot be achieved.
We are working hard to apply the authorities granted to us to increase the use of home confinement. We are aggressively screening all inmates who have COVID-19 risk factors for suitability, starting with inmates incarcerated at facilities with the greatest number of COVID-19 cases. The Attorney General authorized the use of home confinement as a priority in response to the COVID-19 pandemic late last month. Since then, the BOP has reviewed thousands of cases and successfully placed over 1300 inmates on home confinement.
All of our decisions are made with one goal in mind - keeping everyone safe and healthy. We recognize this is hard on you and your loved ones.
2

Case 1:20-cv-00756-PAB Document 31-2 Filed 04/22/20 USDC Colorado Page 16 of 32 It is hard on all of us but we will get through it working together. Our world is much different than it was even a month ago. I will close by personally acknowledging that you and your loved ones cooperation has made a difference during this difficult time, and I thank you. This pandemic is a global emergency and the BOP is taking proactive operational measures to safeguard each person entrusted to our care and custody. I am committed to doing everything I can to achieve our goal of keeping those in our facilities as safe and healthy as possible during this difficult time, and returning to normal operations when it is safe to do so.
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Attachment C

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Office of the Director

Washington, DC 20534
April 8, 2020

MEMORANDUM FOR T~ ~I/ 4 10PULATION

FROM: SUBJECT:

M.D. ~

al, Director

COVID-19 Pandemic

I would rather be able to address you directly, however, that is not practical at this time. Instead, I am writing this letter to tell you what we are doing as an agency to safeguard your health during the COVID-19 pandemic. I want to thank each of you for your understanding and cooperation as we diligently work to try and prevent the introduction of coronavirus in our facilities and to stop the spread of it in the facilities that have already been affected. It is critically important that each and every one of us take this seriously - together we will all get through this.
Let me share some information with you and dispel any rumors you may have heard. Despite the planning and preparations that has been ongoing since January 2020, and the implementation of the first three phases of our COVID-19 Action Plan, the BOP had its first positive inmate case on March 21, 2020, and the first positive staff case the very next day. Unfortunately, I am also saddened to report, as of today, we have had eight COVID-19 inmate-related deaths. On March 26, 2020, we implemented Phase 4 requiring all individuals entering our facilities, including staff, be screened and temperature checked. This was a critical step to ensure we reduce the risk of introducing and spreading the virus inside our facilities.
The Executive Staff and I have made decisions that directly impact each of you. No decision, regardless of how large or small, is taken lightly or done without considerable thought. Stopping social visits has a major impact on you and your loved ones. But, by doing so we are keeping you, your family, and the community safe. We

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increased your monthly phone minutes to help compensate for the lack of visits and by Thursday, April 9, 2020, telephone calls will be free to you for the duration of this emergency (please note, however, collect calls will still be charged to the receiving phone number). We recognize how important it is for you to keep in touch with your families, especially at this time. They need to know how you are doing and you need to know how the virus is affecting them.
Access to legal counsel remains a paramount requirement but, like social visiting, the BOP is reducing the risk of exposure created by external visitors. As such, while in general, legal visits will be suspended for 30 days, case-by-case accommodation will be accomplished at the local level and confidential legal calls will be allowed in order to ensure inmates maintain access to counsel. Limiting facility-to-facility transfers, and other inmate movement, as well as implementing screening and quarantine and isolation procedures, have been essential to slowing the spread of the virus. The nationwide modified operations implemented to maximize social distancing and limit group gatherings, such as staggering meal times and recreation, have also been helpful. However, the growing number of quarantine and isolation cases in our facilities indicates we need to do more.
Accordingly, on April 1, 2020, another decision was made that directly impacts you. For a 14-day period, inmates in every institution have been secured in their assigned cells/quarters to decrease the spread of the virus. Again, we did not make this decision lightly, and I know this can be frustrating for all of you. But just like in communities nationwide who have been required to shelter in place, we feel the safest course to prevent the spread of the virus and keep you healthy is to have you shelter in place as well. After 14 days, this decision will be reevaluated and a determination will be made as to whether or not to return to modified operations.
All of our efforts are toward one goal -- keeping everyone in our prisons, both staff and inmates, safe. We are still in the early stages of this virus; it is not even near the peak in the United States. With that said, I need your continued patience, understanding, and cooperation. I need you to communicate with staff openly and honestly. We need to know how you are feeling both physically by telling staff if you are feeling sick, coughing or running a fever, and mentally, if you are anxious or scared.
I am also asking that you keep yourselves and your areas as clean as possible. On April 4, 2020, the CDC issued updated guidance encouraging all persons to use masks in public, as such, masks have

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been issued to you. There are universal precautions that we must all follow - we are sharing many of the same areas. Please remember to always:
• Wash your hands, especially after touching any frequently used item or surface.
• Avoid touching your face. • Sneeze or cough into a tissue and wash your hands thereafter,
or use the inside of your elbow. • Observe social distancing as much as practical in our
environment.
These are not normal times. Our world is much different than it was a month ago. We recognize this is hard on you, but remember it is equally hard on everyone. Staff are experiencing many of the same feelings as you, your family, as well as myself.
I want to close by personally telling you that your cooperation has made a difference during this difficult time. Please continue to be patient and understanding. Wash your hands frequently, cover your coughs and sneezes, and avoid touching your face. Maintain an appropriate social distance as often as you can. And, equally as important, communicate with the staff about how you are feeling, ask questions, and share your concerns. This pandemic is a global emergency and the BOP is taking proactive operational measures to safeguard each of you that are entrusted to our care and custody. I am committed to doing everything I can to help keep all of you healthy and safe.

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Attachment D

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Attachment E

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Attachment F

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Attachment G

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Stop the Spread of Germs

Help prevent the spread of respiratory diseases like COVID-19.

Avoid close contact with people who are sick.

Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

Clean and disinfect frequently touched objects and surfaces.
Avoid touching your When in public, wear a cloth eyes, nose, and mouth. face covering over your
nose and mouth.
Stay home when you are sick, except to get medical care.
Wash your hands often with soap and water for at least 20 seconds.
cdc.gov/coronavirus
316351-A April 7, 2020 9:58 AM

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Hands that look clean can still have icky
germs!
Wash Your Hands!
This material was developed by CDC. The Life is Better with Clean Hands campaign is made possible by a partnership between the CDC Foundation, GOJO, and Staples. HHS/CDC does not endorse commercial products, services, or companies.

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Attachment H

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Exhibit 3
Second Supplemental Declaration of Paula Trujillo

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a Class of similarly-situated persons,
Plaintiff, v. WARDEN J. BARNHART, in his individual and official capacities, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants.
SECOND SUPPLEMENTAL DECLARATION OF PAULA TRUJILLO
I, Paula Trujillo, pursuant to 28 U.S.C. § 1746, and based upon my personal knowledge and information made known to me from official records reasonably relied upon by me in the course of my employment, hereby make the following declaration relating to the above entitled matter. All records attached to this declaration are true and accurate copies of Bureau records maintained in the ordinary course of business.
1. This declaration is a supplement to my April 6 and 14, 2020, declarations (ECF Nos. 17-2 and 21-1).
2. As referenced in my prior declarations, inmate Edward Nellson, Federal Register No. 31408-007, is currently incarcerated at the United States Penitentiary in Florence, Colorado (USP Florence).
3. In my first declaration, I described in detail how inmates can utilize the Bureau of Prison’s Administrative Remedy Program in order to raise and exhaust grievances. See ECF No. 17-2 ¶¶ 6-7. In my supplemental declaration, I explained the informal resolution
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procedures at USP Florence. See ECF No. 21-1 ¶¶ 3-5. 4. On April 17, 2020, Mr. Nellson made a request for an informal resolution form
(BP-8) and he was given a BP-8 form that same day. See Att. A, Administrative Remedy No. 1014848 at 1. On the BP-8 form, Mr. Nellson claimed that the steps taken to address COVID19 at USP Florence were insufficient. Id. He requested the testing of staff and inmates, regular temperature checks of inmates, that soap and hand sanitizer be available to inmates, and for a doctor to be assigned to USP Florence. Id. On the same date, Mr. Nellson received the following response from his Correctional Counselor: “At USP Florence, various measures have been implemented to safeguard inmates from COVID-19. These steps include, but [are] not limited to, screening staff [and] inmates daily, providing soap for inmates to use, and having medical providers conducting rounds each day in your housing unit.” Id. Upon delivering Mr. Nellson the completed BP-8 form, Mr. Nellson was also provided a blank Request for Administrative Remedy form (BP-9) on the same date.
5. On April 20, 2020, Mr. Nellson returned his BP-9 form to his Unit Team staff and it was formally filed in SENTRY. Id. at 3; see also Att. B, SENTRY Administrative Remedy Index at 2. In the BP-9, Mr. Nellson again reiterated his contention that steps taken at USP Florence to prevent COVID-19 were inadequate. See Att. A at 3. He requested that inmates be screened daily, including daily temperature checks; that he be provided soap and hand sanitizer; and that inmates be tested for COVID-19. Id. He further complained that he had “only gone to commissary 2 times” over the previous 5 weeks, and that “the cheap soap is not in stock.” Id.
6. On April 21, 2020, one calendar day after receiving the BP-9, Warden Barnhart responded to Mr. Nellson’s Request for Administrative Remedy. Id. at 4-5. Warden
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Barnhart addressed each of Mr. Nellson’s concerns and requests, including (1) reminding Mr. Nellson that medical providers conduct twice daily sick call rounds in his housing unit; (2) that inmates assigned to work details are screened and have their temperatures taken when they begin and end their work assignments; (3) that once there is a positive inmate case of COVID19 at FCC Florence, should that occur, all inmates will be screened daily through temperature and symptom checks; (4) that Mr. Nellson’s medical history was reviewed by the Health Services Administrator and a Staff Physician, and that he did not fit the criteria for “high risk” individuals under Center for Disease Control and Prevention (“CDC”) guidelines; (5) that although hand sanitizer is not provided to inmates because it contains alcohol, which creates a safety and security issue, all inmates at USP Florence have access to sinks, water, and soap at all times; (6) that inmates are permitted to purchase commissary items such as soap once per week, that soap is provided at no cost to indigent inmates, and that Mr. Nellson himself had recently purchased six bars of soap; and (7) that USP Florence was making the determination whether to test individuals for COVID-19 in accordance with CDC guidelines. See id. Warden Barnhart also reminded Mr. Nellson that he has the opportunity report any medical concerns to Bureau medical providers on a daily basis, and encouraged Mr. Nellson to practice social distancing and good hygiene, including frequent hand washing with soap and water, and to report any symptoms associated with COVID-19 to medical staff. Id. at 5. Mr. Nellson was informed that, if he is not satisfied with this response, he may appeal the Warden’s decision to the Regional Director within twenty calendar days. Id.
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Case 1:20-cv-00756-PAB Document 31-3 Filed 04/22/20 USDC Colorado Page 5 of 14 Pursuant to the provisions of 28 U.S.C. § 1746, I declare under penalty of perjury
that the foregoing is true and correct to the best of my information, knowledge, and belief. Executed on this 22nd day of April 2020, in Florence, Colorado. s/ Paula Trujillo Paula Trujillo Paralegal ADX Florence, Colorado Federal Bureau of Prisons
Enclosures Att. A Administrative Remedy No. 1004848 Att. B SENTRY Administrative Remedy Index
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Attachment A

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Attachment B

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ABSTRACT.: ISSUES WITH SANITATION IN RELATION TO COVID-19

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 Case 1:20-cv-00756-PAB Document 35 Filed 05/01/20 USDC Colorado Page 1 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a CLASS of similarly-situated persons,
Plaintiffs, v. WARDEN J BARNHART, in his individual and official capacity, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants. PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE [ECF No. 31] TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Defendants’ actions, though seemingly vast and detailed, are ineffective as implemented against COVID-19, are overstated, and will continue to be deficient without change and testing. In their Response, Defendants explained the numerous precautionary measures they are allegedly taking to prevent the spread of COVID-19. ECF No. 31 at 2-9. Unfortunately, though, Defendants are not protecting the prisoners and are not providing these precautionary measures in an effective manner, as detailed below.
INTRODUCTION COVID-19’s presence in USP Florence, or even the Federal Correctional Complex broadly, is not a question of if, but when. As of May 1, 2020, there are 1,852 federal prisoners and 343 BOP staff who have confirmed positive test results for COVID-19 nationwide across 49 BOP facilities. Federal Bureau of Prisons, “COVID-19 Virus,” May 1, 2020, available at: https://www.bop.gov/coronavirus (last accessed May 1, 2020). Thus far, COVID-19 has caused

Case 1:20-cv-00756-PAB Document 35 Filed 05/01/20 USDC Colorado Page 2 of 9
36 federal prisoners’ deaths. Id. There are now 22 confirmed cases of COVID-19 in Fremont County, where FCC Florence is located, and 146 confirmed cases in nearby Pueblo County. https://covid19.colorado.gov/case-data (last accessed May 1, 2020). Note that this is a significant increase from time at which the original Preliminary Injunction motion was drafted, at which point there were no cases in Fremont County and only one case in Pueblo County. The numbers are therefore multiplying, significantly. Defendants must act now to protect both their prisoners and staff.
REFUTATION OF DEFENDANTS’ FACTUAL BACKGROUND While USP Florence has placed its prisoners in lockdown, prisoners are otherwise unprotected and open to risk. Defendants claim that prisoners have “access to sinks, water, and soap at all times.” ECF No. 31 at 6. However, prisoners at USP-Florence have been placed on Restricted Commissary, meaning no prisoner may spend more than fifty dollars on commissary items per month. Ex. 1, Nellson Dec. ¶ 3; Ex. 2, Trevino Dec. ¶ 6.1 Moreover, prisoners have also been limited to purchasing only hygiene items at this time and cannot purchase any other types of items from the commissary such as food. Ex. 2, Trevino Dec. ¶¶ 6-8. While Defendants claim “all inmates have access to sinks, water, and soap at all times,” and for prisoners who have insufficient funds to purchase soap from the commissary, “soap is provided at no extra cost,” ECF No. 31 at 6, these claims do not reflect the reality prisoners are facing. Prisoners are limited to purchasing hygiene items, but if they have insufficient funds, they are not being provided soap at no charge. Ex. 2, Trevino Dec. ¶ 9.
1 Other declarations are forthcoming, but undersigned counsel has not yet received them in the mail. Mr. Nellson will ask the Court for leave to supplement this Reply when undersigned counsel receives the anticipated declarations.
2

Case 1:20-cv-00756-PAB Document 35 Filed 05/01/20 USDC Colorado Page 3 of 9
A prisoner at USP Florence, Mr. Trevino, states in his attached declaration that when prisoners run out of money, they must wait to revalidate and get into the next month’s period to buy items again, including soap. Ex. 2, Trevino Dec. at ¶ 9. Mr. Trevino states that he is personally aware of several people who went without soap for several days last week because they ran out of money. Id. When that happens, USP Florence does not distribute soap. Indeed, the last time Defendant BOP gave out soap was approximately six months ago when the facility was on lockdown for an extended time. Ex. 2, Trevino Dec. ¶ 10. Additionally, Mr. Nellson’s financial ability to purchase soap from the commissary does not negate the circumstances of those he lives with in his unit and facility, who are unable to buy soap and are therefore unable to protect themselves and prevent the spread of COVID-19. Within the close confines of the prison and without the ability to wash their hands consistently, Mr. Nellson and other prisoners run an elevated risk of catching and spreading COVID-19.
Defendants also recognize the necessity of social distancing, claiming they have taken steps to promote distancing in addition to locking the complexes down. ECF No. 31 at 6. Despite this, Defendants still require prisoners to be housed in the same cell with at least one other prisoner, either of whom may or may not be able to purchase soap from the commissary. Given that the prisoners are locked down in their cells for 23 hours of the day, they have no options to choose which time they leave their cells. For example, they cannot go into the communal areas at lessbusy times, thereby implementing social distancing measures. Social distancing is also impossible to respect given that prisoners are responsible for food service.
Notably, according to Mr. Trevino who works the kitchen at USP Florence, when they go to work the prisoners receive a temperature check. Ex. 2, Trevor Dec. at ¶ 4. When that happens,
3

Case 1:20-cv-00756-PAB Document 35 Filed 05/01/20 USDC Colorado Page 4 of 9
15 to 20 individuals line up and a guard goes down the line checking temperature. Id. There is no indication the thermometer is cleaned between prisoners and there is no change of gloves in between prisoners. Id. Further, the staff still is not asking basic questions of prisoners, for example how they are feeling. Id.
ARGUMENT After Defendants’ assurance that Mr. Nellson would receive expedited responses using the emergency grievance procedure, Mr. Nellson filed an administrative remedy. As he continues through the exhaustion process, he requests relief pending exhaustion. Jones v. Bock, 549 U.S. 199, 212-13 (2007) (holding that unless the PLRA explicitly says otherwise, the “usual practice” of litigation must be followed). As injunctive relief, especially preliminary injunctive relief, is a part of the usual practice of litigation under the Federal Rules of Civil Procedures, this court may grant that relief pending exhaustion. Fed. R. Civ. P. 65.
A. Defendants misconstrue the Eighth Amendment violation test To begin with, Defendants misconstrue the objective and subjective factors of the Eighth Amendment test. According to Defendants, a plaintiff must establish “that prison officials (1) deprived him of the minimal measure of life’s necessities, such as inmate health or safety (the objective prong), and (2) did so with ‘deliberate indifference’ (the subjective prong).” ECF No. 31 at 12. Defendants’ contention does not square with Supreme Court and Tenth Circuit precedent. Defendants conflate the objective prong – which requires a plaintiff to prove he has a sufficiently serious medical need – with the subjective prong – which requires him to show Defendants are deliberately indifferent to that need. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Al-Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014).
4

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Certainly, a plaintiff claiming an Eighth Amendment violation must show a deprivation of life’s necessities or a substantial risk of such a deprivation. See Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). But that showing is made by proving both the objective and subjective prongs. In other words, it is the deliberate indifference test itself, or the combination of the objective and subjective prongs together, that make that showing: i.e. serious medical need + deliberate indifference to that need = (risk of) deprivation/Eighth Amendment violation. Under the correct formulation of the Eighth Amendment analysis, Mr. Nellson easily satisfies this. The risk of COVID-19 is well-known, as demonstrated by Defendants’ Response and attached declarations; COVID-19 is an extremely serious threat to both prisoners and staff. See, e.g., ECF No. 31 at 2-7; ECF No. 17 at 2-7; ECF No. 17-1, Hemlie Declaration at ¶¶ 5-6.
B. Defendants continue to overstate the scope and effectiveness of their efforts, underscoring the need for injunctive relief
Defendants argue that Mr. Nellson has not shown that they have failed to respond to the COVID-19 crisis by detailing the measures they are supposedly taking over seven pages of their Response. ECF No. 31 at 2-9. However, these measures must be implemented to be effective. Estelle v. Gamble, 429 U.S. 97, 103 (1976) (establishing that the government is obligated to provide medical care to its prisoners and failure to do so causes unnecessary and wanton infliction of pain). As of now, Defendants have not taken reasonable steps to abate the risk of COVID-19. As described above, Mr. Nellson and other prisoners have no guaranteed access to either soap or hand sanitizer at USP Florence, despite Defendants’ claims that they are providing soap for handwashing. ECF No. 31 at 6. Indeed, with the entire facility on restricted commissary, prisoners run out of money in their $50/month cap and cannot purchase more soap. Ex. 2, Trevino Dec. ¶¶
5

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6-9; ECF No. 31 at 6. When that happens, Defendants do not provide these prisoners with any more soap, free of cost as they claim. Ex. 2, Trevino Dec. ¶¶ 6-9; ECF No. 31 at 6.
Defendants also are not systematically testing the prisoners’ temperatures and are only allegedly testing their employees’ temperatures upon entering the facilities, even though Defendants know that a fever is a tell-tale sign of COVID-19. See, e.g., ECF No. 31-1 at 28. Defendants also acknowledged themselves that prisoners are only allowed to wash their laundry “at least once weekly.” ECF No. 17 at 8 (emphasis added). This practice hardly maintains sanitary conditions in the face of a pandemic. Notably, this is not an isolated incident of misrepresentations; Defendants have also misrepresented their efforts in at least one other case involving the Metropolitan Detention Center in New York. Ex. 3 (demonstrating that infected prisoners have not been held in isolation nor have BOP staff been given sufficient protection gear, despite the BOP’s representations about their practices).
Moreover, it is commonly known that people carrying COVID-19 can be asymptomatic. https://www.cidrap.umn.edu/news-perspective/2020/04/study-many-asymptomatic-covid-19cases-undetected (last accessed May 1, 2020). Even though staff members are having their temperatures tested when they enter the prison, asymptomatic staff members may easily carry the virus into the prison and spread it prior to showing any symptoms at all. Ex. 2, Trevino Dec. ¶ 13. The first case of COVID-19 arrived in FCI Englewood, another BOP facility north of USP Florence. It is possible that this staff member exposed prisoners to COVID-19 who were then transferred to USP Florence. Ex. 1, Nellson Dec. ¶ 17. Without testing staff who enter and exit the prison daily, and without testing prisoners who are exposed to those staff members, Defendants place Mr. Nellson and every prisoner at USP-Florence at imminent risk of harm. Ex. 1, Nellson
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Dec. ¶ 19. Once COVID-19 enters USP-Florence, it will likely spread quickly as it has done in other prisons across the country. See, e.g., Mays v. Dart, JC-IL-0054-0002, Doc. 1 (N.D. Ill. Apr. 3, 2020).
C. Mr. Nellson is likely to succeed on his Eighth Amendment claim It naturally follows that a failure to take reasonable steps to mitigate a serious risk of harm from a pandemic virus necessitates a conclusion of deliberate indifference. Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005) (“[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.”) (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)). As clearly outlined in both Defendants’ Response and the declarations attached thereto, Defendants are fully knowledgeable about COVID-19 and the risk it poses to both the prisoners and the BOP’s staff. See generally, ECF No. 31. Defendants are also undoubtedly aware of these concerns, as they have been raised in other lawsuits at different facilities. See, e.g., Chunn v. Edge, 1:20-cv-01590, Doc. No. 1 (E.D.N.Y. Mar. 27, 2020); Livas v. Myers, 2:20-cv-00422-TAD-KK, Doc. No. 1 (W.D. La., Apr. 6, 2020). Yet, despite this knowledge, Defendants still do not provide hand soap when needed, nor do they test any of their staff or prisoners for COVID-19; the only way to ensure there are no cases of COVID-19 in the facility and to ensure it remains that way. See, e.g., Response at 6, 9-10. Finally, the relief Mr. Nellson is requesting is not unique. Several courts across the country recognize the urgency and necessity of this relief. See, e.g., Wilson v. Williams, No. 4:20-cv-00794 (N.D. Oh. Apr. 22, 2020) (recognizing the BOP’s efforts (or lack thereof) were insufficient to prevent the spread of COVID-19 within FCI Elkton); Gayle v. Meade, No. 20-21553COOKE/GOODMAN (S.D. Fla. Apr. 30, 2020).
7

Case 1:20-cv-00756-PAB Document 35 Filed 05/01/20 USDC Colorado Page 8 of 9
CONCLUSION This is a matter of life and death. The Court must act. Respectfully submitted this 1st day of May 2020.
/s/ Maria-Vittoria G. Carminati Maria-Vittoria G. Carminati (CO #50579) Alexandra Parrott (CO #54188) NDH LLC 4601 DTC Blvd., Suite 300 Denver, CO 80237 720-445-5655 mvcarminati@ndh-law.com aparrott@ndh-law.com /s/ Mario Williams Mario Williams (GA # 235254) Pro Hac Vice NDH LLC 44 Broad Street NW, Suite 200 Atlanta, GA 30303 404-254-0442 mwilliams@ndh-law.com
8

Case 1:20-cv-00756-PAB Document 35 Filed 05/01/20 USDC Colorado Page 9 of 9 CERTIFICATE OF SERVICE
I certify that the foregoing was served on all Defendants of record via e-filing on May 1, 2020.
/s/ Alexandra Parrott Alexandra Parrott
9

Case 1:20-cv-00756-PAB Document 35-1 Filed 05/01/20 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a CLASS of similarly-situated persons,
Plaintiffs, v. WARDEN J BARNHART, in his individual and official capacity, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants. DECLARATION OF EDWARD NELLSON
I, Edward Nellson, declare under penalty of perjury under the law of Colorado that the following is true and correct to the best of my knowledge and information:
1. My name is Edward Nellson, and I am the plaintiff in this case. I am over the age of twenty-one and am otherwise competent to testify. I make the following statements based upon my personal knowledge.
2. I live in the United States Penitentiary – Florence in Florence, Colorado. 3. We have to buy our own soap from the commissary when we need it. I was able to recently buy soap from the commissary but up until recently, half of my unit was on commissary restriction, meaning they could only spend $10, $15, or $25 on commissary each month. 4. Now, everyone in the prison is on restricted commissary because of supply chain issues. 5. The BOP is only providing hand soap to inmates who have no money in their account, but this does not take into consideration inmates on commissary restriction. Because they

Case 1:20-cv-00756-PAB Document 35-1 Filed 05/01/20 USDC Colorado Page 2 of 4
spend their limited money on other items, they can’t also buy hand soap when they run out. The prison has soap, but they aren’t giving it to people who need it.
6. I live in a single cell, but the overwhelming majority of my unit has cellmates. They are never going to be six feet away from each other.
7. There are numerous inmates with preexisting health conditions here, like diabetes and high blood pressure, who are at a higher risk of getting COVID-19. There’s one guy next door to me with borderline kidney failure, diabetes, asthma, and obesity, and he’s sixty years old; if he catches it, he’s going to die.
8. We also don’t have a doctor here at USP Florence. They moved our last doctor, Dr. Bailey, to FCC Florence three weeks ago, so all we have here are nurses. One nurse told me that the first time they get a case in here, they’re going to have to wrap me up in a bubble because people are so susceptible in here.
9. The prison gave us one mask each, but they are very flimsy and paper thin. There isn’t a good way to wash the masks, so all I can do is spray disinfectant on my mask, but I don’t know what is in it. The masks would dissolve if we tried to wash them.
10. Up until April 8, the guards weren’t wearing masks either. Then on Wednesday, all of the guards started wearing masks. They also told us we couldn’t leave our cells without wearing our masks.
11. The guards only wear the masks; they don’t wear gloves or any other protective gear when they work. They wear masks when they hand out our food every day, but they don’t wear any gloves when they pass out our food.
2

Case 1:20-cv-00756-PAB Document 35-1 Filed 05/01/20 USDC Colorado Page 3 of 4
12. Common areas also are not guaranteed to be clean. I work as an orderly and I and other orderlies clean the common areas once every few hours. The problem is that with commonly used areas, like the phones, the inmates don’t always clean the phones before and after they use them.
13. The guards also don’t screen the prisoners daily. No inmate gets their temperature taken, period. We never have our temperature taken, including the guys who leave the unit for work-duty to work in the kitchen or laundry or commissary.
14. A big issue is that the inmates who work in the kitchen, laundry, commissary, or trash duty aren’t screened before they leave the unit and don’t have their temperature taken. If they get sick, they touch all of the food or clothes or commissary items that go to every unit in the facility. If one of them gets sick, we all get sick. Everything that goes through their hands goes to every housing unit.
15. At least two staff members have had COVID-19. One just came back yesterday, April 23, 2020, after being out for a month because of it. Another one stopped coming in a couple weeks ago because she also has COVID-19. We didn’t have masks before she stopped coming in to work either.
16. The prison also has a quarantine unit in FCI Florence for the entire compound. They keep the inmates there for fourteen days, but while they’re there, they can only shower for five minutes every other day and they use the same shower stalls.
17. Even though transferred inmates are quarantined for 14 days when they get here, some of them have to come through FCI Englewood because there’s a holdover unit there and we get people from there.
3

Case 1:20-cv-00756-PAB Document 35-1 Filed 05/01/20 USDC Colorado Page 4 of 4
18. They’ve also now shut down the law library. They aren’t letting anyone go to the library and they only tell us that its unavailable and they aren’t doing it.
19. The BOP says they’re doing a lot here, but it won’t actually be effective if the virus gets in here, because the people who have access to all units of the prison aren’t being screened or protected properly. A lot of guys in here are very susceptible to catching it, because they’re at Care Levels 3 and 4, in addition to the Care Level 2 inmates here.
s/ Edward Nellson Edward Nellson I, Alexandra L. Parrott, certify that I reviewed this Declaration with Edward Nellson by phone on April 17, 2020, and April 24, 2020, and that he certified that the declaration was true and correct to the best of his knowledge. I am unable to meet in-person with Mr. Nellson as he is currently incarcerated in the USP-Florence, which is currently not allowing legal visitation; I am also subject to Governor Polis’s Executive Order restricting public travel and requiring physical distancing. s/ Alexandra Parrott Alexandra Parrott, Associate Attorney
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Case 1:20-cv-00756-PAB Document 35-2 Filed 05/01/20 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00756-PAB EDWARD NELLSON, individually, and a CLASS of similarly-situated persons,
Plaintiffs, v. WARDEN J BARNHART, in his individual and official capacity, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants. DECLARATION OF FIDEL TREVINO
I, Fidel Trevino, declare under penalty of perjury under the law of Colorado that the following is true and correct to the best of my knowledge and information:
1. My name is Fidel Trevino and I am over the age of twenty-one and am otherwise competent to testify. I make the following statements based upon my personal knowledge.
2. I live in the United States Penitentiary – Florence in Florence, Colorado. I am thirtyfour years old and I have asthma.
3. We’re all stuck here because the BOP told us nobody in maximum security qualifies for home confinement or compassionate release just because of our security level. Even my cellie, who has done everything to qualify, including serving more than 50% of his sentence and has medical issues like breathing problems and diabetes that place him at greater risk of getting COVID-19, was told he can’t be released to home confinement or compassionate release because he’s in this facility.

Case 1:20-cv-00756-PAB Document 35-2 Filed 05/01/20 USDC Colorado Page 2 of 3
4. I currently work in the kitchen at USP-Florence. When we go to work, all they do is give us a temperature check. About 15-20 guys line up to go to work and one person goes down the line to check our temperature. The staff that checks our temperature wears a mask and gloves but doesn’t change gloves between prisoners. They don’t ask us how we’re feeling or if we’re feeling sick at all.
5. We told the guards several times that the COs can bring the virus in, they can carry it without showing symptoms for two weeks, and during those two weeks, they can still pass it on without having a high temperature. They just tell us to get to work.
6. The entire facility it now on restricted commissary. Before, we were able to order anything on the commissary up to $50. Now you can only order hygiene items, not food anymore. It went into effect two weeks ago.
7. Having restricted commissary is very difficult. There’s a lot of people here who depend on that food and need that food, like people with diabetes who need to be eating all day throughout the day.
8. Now we can only order hygiene things like soap, shampoos, conditioners, toothpaste, toothbrushes, and deodorant. Last week, I heard people saying they weren’t able to get hygiene stuff because that commissary didn’t have enough to provide.
9. If you run out of money, you have to wait to revalidate and get into the next month’s period to be able to buy stuff again, the BOP isn’t giving any to us. I know a couple people who went a couple days without soap last week. They ran out of money and the BOP didn’t give them any soap.
2

Case 1:20-cv-00756-PAB Document 35-2 Filed 05/01/20 USDC Colorado Page 3 of 3
10. The BOP hasn’t given us soap in a very long time. The last time they gave us soap was a lockdown about six months ago. We had to threaten to riot just to get them to bring us razors and soap. But they don’t give us soap if we run out and can’t buy any now.
11. A couple weeks ago the guards gave us all masks that we have to wear any time we leave the cell. Our masks are just cloth with strings on them. I have asthma and its hard to breathe with the mask on. I don’t think the masks are super effective though, because its just like having a t-shirt on your face. The guards have good masks though, they get to wear the doctor-masks.
12. As of right now, we don’t have a doctor here, we only have nurses. I would hope they would send a doctor soon if we need one, but we’ve been told there’s no doctors here.
13. I understand the BOP is doing stuff, but they have to understand too that we’re human beings and we shouldn’t be going through all of this just to be safe. We aren’t the one going in and out of the facility, the guards are. This is our home and the guards are the ones bringing the sickness in here, but they don’t care because we’re just criminals.
s/ Fidel Trevino Fidel Trevino
I, Alexandra L. Parrott, certify that I reviewed this Declaration with Fidel Trevino by phone on April 30, 2020, and that he certified that the declaration was true and correct to the best of his knowledge. I am unable to meet in-person with Mr. Nellson as he is currently incarcerated in the USP-Florence, which is currently not allowing legal visitation; I am also subject to Governor Polis’s Executive Order restricting public travel and requiring physical distancing.
s/ Alexandra Parrott Alexandra Parrott, Associate Attorney
3

Case 1:20-cv-00756-PAB Document 1395-13 Filed 045/1031/20 USDC Colorado Page 1 of 3

Case 7:13-cr-00353-KMK Document 90 Filed 04/09/20 Page 1 of 3

Federal Defenders
OF N E W YO RK , I NC .

Southern District 52 Duane Street - 10th Floor, New York, NY 10007
Tel: (2 12) 417-8700 Fax : (212) 571--0392

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April 9, 2020
BY ECF AND EMAIL
Honorable Kenneth M. Karas United States District Judge Southern District of New York 40 Foley Square New York, NY 10007
Re: United States v. Rabadi 13 Cr. 353 (KMK)
Dear Judge Karas:
We write to briefly supplement our reply, filed this morning, based on factual information we just received from correctional staff at the MDC that directly contradicts information provided by the BOP to the government, and relied on by the government in opposing Mr. Rabadi’s compassionate release, with respect to the measures being taken by the BOP to control the spread of COVID-19 within the facility. Specifically, we learned that the VicePresident of the Union that represents correctional staff at the MDC sent the below email to the Warden of the MDC this morning:
-------------------------------------------------
Good morning, The Preamble states that we recognize that the employees are the most valuable resource of the agency. It has come to the Union's attention that management has shown that inmates are the most valuable asset to the Bureau. Can we please address the following concerns:
Why are staff not quarantined who have been in direct contact with inmates who have tested positive or were symptomatic? Meanwhile, you are quarantining an entire unit, and not saying a word to those staff members left behind. When will we show staff that we care about them? You only gave us 2 surgical masks to enter the building for protection, one more mask than you gave the inmates to reuse weekly.
Why do we have 2 inmates who tested positive on regular housing units? J-73 and G-43. These inmates were released to general population even before 7days of quarantine. Why aren't those

Case 1:20-cv-00756-PAB Document 1395-13 Filed 045/1031/20 USDC Colorado Page 2 of 3 Case 7:13-cr-00353-KMK Document 90 Filed 04/09/20 Page 2 of 3

Honorable Kenneth M. Karas United States District Judge

April 8, 2020 Page 2

housing units on quarantine with appropriate PPE for staff? if a staff member gets sick or even dies from the COVID19 virus in one of these units it's now noted that you were well aware. We are asking for N-95's on those units and for all staff entering these housing units.
Once staff test positive why haven't we informed all staff who have been in direct contact with those individuals? Why are they not quarantined? Why are we not appropriately informing the staff?
Rhonda Barnwell, A.F.G.E Local 2005 - Deputy Chief U.S. Department of Justice Federal Bureau of Prisons Metropolitan Detention Center 80 29th Street Brooklyn, NY 11232
------------------------------------------------The BOP has repeatedly asserted in litigation in the Southern and Eastern Districts of New York that it is containing the spread of coronavirus by keeping positive and symptomatic inmates on isolation (Gov’t Opp. at 1718; April 9 Letter to Chief Judge Mauskopf, pursuant to Administrative Order No. 2020-14, from Warden Edge and Warden Licon-Vitale, attached as Ex. A), but the Union, whose members are required to work inside the facility every day, states that two inmates who have tested positive were returned to regular housing units after less than 7 days, that those units are not now quarantined, and staff on those units have not been given appropriate personal protective gear. The Union also raises the clear problem of exposed staff not being quarantined, but rather, continuing to work on the units, and of staff members not being informed when other staff members whom they were in contact with have tested positive.
These assertions by the Union call the credibility of the BOP’s representations about the practices at MDC Brooklyn into serious question and further speak to the risk to all the inmates from such practices that are contrary to the CDC’s advice, and in particular the risk to vulnerable inmates such as Mr. Rabadi.
Respectfully Submitted,
/s/ Sylvie J. Levine Deirdre D. von Dornum Federal Defenders of New York

Case 1:20-cv-00756-PAB Document 1395-13 Filed 045/1031/20 USDC Colorado Page 3 of 3 Case 7:13-cr-00353-KMK Document 90 Filed 04/09/20 Page 3 of 3

Honorable Kenneth M. Karas United States District Judge

April 8, 2020 Page 3

CC: AUSA Daniel Richenthal AUSA Margery Feinzig Chief U.S. Probation Officer Michael Fitzpatrick Albert Dayan, Esq.

 
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer
Civil Case No. 20-cv-00756-PAB EDWARD NELLSON, individually, and on behalf of others similarly situated,
Plaintiff, v. WARDEN J. BARNHART, in his individual and official capacity, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants. _____________________________________________________________________
ORDER _____________________________________________________________________
This matter is before the Court on plaintiff’s Motion for Limited Discovery [Docket No. 26] and that portion of Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 10] seeking a preliminary injunction. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. I. BACKGROUND
Edward Nellson is an inmate at the United States Penitentiary in Florence, Colorado (“USP Florence”). Docket No. 10 at 1. He purports to represent a class of similarly situated inmates. Docket No. 1 at 1, 18. Plaintiff alleges that USP Florence is (1) not screening inmates or staff members for COVID-19, (2) not testing prisoners for COVID-19, (3) not isolating prisoners who test positive for COVID-19, and (4) not preventing infected staff members from working. Docket No. 10 at 1. Mr. Nellson filed a complaint on March 18, 2020, alleging that the failure to take the above steps violates

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his rights, and those of the class, under the Eighth Amendment. See Docket No. 1. On
March 31, 2020, Mr. Nellson filed a motion for temporary restraining order (“TRO”) and
preliminary injunction, requesting that the Court order USP Florence to begin instituting
screening, testing, and isolation of both inmates and staff. Docket No. 10 at 1-2.
On April 16, 2020, the Court denied plaintiff’s motion for a TRO. The Court
concluded that plaintiff (1) had failed to exhaust administrative remedies, (2) had not
shown the likelihood irreparable harm in the absence of a TRO, and (3) failed to show
a likelihood of success on the merits. Docket No. 23 at 6-14.
On April 17, 2020, plaintiff filed a motion for limited and expedited discovery.
Docket No. 26. Plaintiff requests the following:
a. all emails and documents, in native form, to, from, and between all USP Florence employees, and state, regional, and national BOP officials discussing COVID-19 at USP Florence specifically, including screening, testing, and any preventative measures for COVID-19 at USP Florence;
b. all emails and documents, in native form, to, from, and between all USP Florence employees, BOP employees, and the Government with third-parties, including protective gear purveyors, regarding COVID-19 at USP Florence specifically, including screening for, testing for, and obtaining protective gear to protect against COVID-19 at USP Florence;
c. all documents and emails evidencing the measures in place at USP Florence to screen for, test for, and implement preventative measures to protect against COVID-19;
d. all documents and emails evidencing the measures considered for, but not implemented at, USP Florence to screen for, test for, and prevent propagation of COVID-19;
e. all documents and emails evidencing the presence, if any, of COVID-19 at USP Florence among both its staff and prisoner
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population; and f. all publications on the Inmate Electronic Bulletin Board related to
COVID-19. Id. at 3. Defendants filed a response to the motion for expedited discovery on April 21, 2020. Docket No. 30.
In their response to the motion for TRO, defendants outline the steps that the Bureau of Prisons (“BOP”) and USP Florence have taken to reduce the risk to inmates from COVID-19. See Docket No. 17.1 These procedures are still in effect. Docket No. 31-2 at 2-3, ¶ 3; see also COVID-19 Action Plan: Phase Seven, Fed. Bureau of Prisons (May 20, 2020, 4:00 PM), https://www.bop.gov/resources/news/20200520_covid-19 _phase_seven.jsp (stating that Phase Seven includes all previous precautions and will remain in place until June 30, 2020). Defendants indicate that the BOP has adopted a multiphase “Action Plan.” Docket No. 17-1 at 4, ¶¶ 6-7. On a nationwide basis, the BOP has
implemented screening requirements for inmates and staff; temporarily suspended social visits, legal visits, inmate transfers, official travel, and contractor access; updated its quarantine and isolation procedures; and instituted a ‘modified operations’ plan, which directs BOP facilities to adjust their daily operations in a manner that permits inmates to engage in physical distancing while in common areas, such as during mealtimes and recreation. Docket No. 17 at 2-3 (citing Docket No. 17-1 at 5-7, ¶¶ 8-15). Additionally, on April 1, 2020, the BOP required “all inmates to remain ‘secured in their assigned cells’ . . . to
1 The response attaches as Exhibit 1 the declaration of Shari Himlie, the Health Services Administrator for USP Florence and the three other federal prisons located in Florence Colorado. See Docket No. 17-1. Ms. Himlie oversees the health services operations at each of the Florence prisons. Id. at 2-3, ¶ 1-4.
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decrease the spread of the virus.” Id. at 3 (citing Docket No. 17-1 at 7-8, ¶ 16). As a result, “BOP inmates across the country are currently being confined to their cells for the majority of each day.” Id. (citing Docket No. 17-1 at 8-9, ¶ 17).
At USP Florence, the following measures have been taken regarding inmates: (1) new inmates are screened and quarantined for 14 days regardless of whether the inmate displays symptoms; (2) high-risk individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), are screened, given temperature checks, and provided “additional education regarding COVID-19 prevention”; (3) medical staff check on general population housing units twice a day; (4) inmates with work details are screened for symptoms and have their temperatures taken before shifts begin and then again before returning to their housing units; (5) any inmate presenting COVID-19 symptoms is immediately evaluated to determine whether testing or isolation is appropriate and whether any other inmate who had contact with the symptomatic inmate should be quarantined; (6) designated quarantine and isolation units have been created; and (7) inmate testing is based on CDC guidance, looking to the nature and severity of symptoms, an inmate’s potential exposure to COVID-19 and risk profile, and whether an inmate has a work detail that requires contact with other inmates or staff. Docket No. 17-1 at 13-16, 18, ¶¶ 33-50, 58.
Regarding staff and visitors, USP Florence has implemented the following measures: (1) all staff and visitors must have their temperature taken, disclose symptoms of illness, and answer questions designed to evaluate their risk of exposure before entering USP Florence; (2) any staff member or visitor who reports symptoms or
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has a temperature of above 100.4 degrees Fahrenheit may be excluded from the building; and (3) any staff member who has been tested for COVID-19 is not permitted to return to work until he or she receives a negative test result. Id. at 16-17, ¶¶ 52-53, 55.
USP Florence has taken additional, staff-related steps by: (1) limiting the number of in-person meetings; (2) capping the number of attendees at in-person meetings; (3) replacing in-person meetings with video-conferencing to the extent practicable; and (4) requiring staff members to work at only one institution in the complex where USP Florence is located. Id. at 19-20, ¶¶ 65, 69
As to sanitation, USP Florence: (1) provides all inmates with access to sinks, water, and soap at all times; (2) offers new soap weekly; (3) gives all new inmates soap upon arrival; (4) provides soap at no cost to any inmate without sufficient funds to purchase it2; (5) cleans common areas at least once daily, “typically” multiple times a day, with a disinfectant that kills coronavirus; (6) provides inmates with the disinfectant so that they may clean their cells with it; (7) cleans common areas outside the living areas with the disinfectant on a daily basis and “often multiple times a day”; (8) disinfects staff common equipment, such as radios and keys, whenever an item is checked out or returned; (9) provides personal protective equipment, such as respirator masks, surgical masks, and rubber gloves, to staff in quarantined areas, isolation units, and screening sites; and (10) provides all inmates and staff protective masks for daily
2 As discussed below, whether and how often inmates are provided soap is in dispute.
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use. Id., ¶¶ 62-64, 67-68. As of April 13, 2020, the BOP moved from Step Five to Step Six of their action
plan. Docket No. 31-2 at 3-4, ¶ 7. Step Six maintains the above precautions, including requiring inmates to stay in their cells for the majority of the day, as well as the following: (1) meals and commissary items are delivered directly to inmates’ cells; (2) inmates are permitted to leave their cells on a rotating basis for approximately two-anda-half to three hours per day depending on the day; (3) inmates are directed to maintain physical distancing while outside of their cells; (4) inmates are not required to leave their cells and are permitted to remain in their cells if they choose; (5) telephone calls are free during the COVID-19 emergency; (6) work detail screening is conducted at the Health Services Department of USP Florence; (7) USP Florence staff are required to wear face masks when in common areas when appropriate social distancing is impossible; (8) USP Florence staff are required to keep a face mask on their person at all times; (9) staff working in isolation or quarantine housing are required to wear PPE; and (10) inmates are required to wear face masks except “when necessary for identification, when the individual is unable to personally remove the mask, or the individual has chronic conditions associated with difficulty breathing.” Id. at 3-4, 6-8 ¶ 7, 8 & n.2, 13, 19, 22. On May 18, 2020, the BOP moved to Phase Seven, which extends all of the previous precautions until June 30, 2020. COVID-19 Action Plan: Phase Seven, Fed. Bureau of Prisons (May 20, 2020, 4:00 PM), https://www.bop.gov/ resources/news/20200520_covid-19_phase_seven.jsp.
As of the date of this order, the BOP website shows no reported COVID-19
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cases among prisoners or staff at USP Florence. See COVID-19 Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus (last updated June 4, 2020). II. LEGAL STANDARD
A. Expedited Discovery A party seeking expedited discovery has the burden of showing good cause for the requested departure from usual discovery procedures. Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003); see also Fed. R. Civ. P. 26(b). Expedited discovery has been granted in cases where discovery of certain facts is “unusually difficult or impossible.” See Pod-Ners, LLC v. N. Feed & Bean of Lucerne Ltd. Liability Co., 204 F.R.D. 675, 676 (D. Colo. 2002). B. Preliminary Injunction To succeed on a motion for a preliminary injunction, the moving party must show (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the movant’s favor; and (4) the injunction is in the public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 US. 7, 20 (2008)). “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) (quotations and citation omitted). Granting such “drastic relief,” United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989), is the “exception rather
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than the rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). There are three types of preliminary injunctions that are disfavored:
(1) injunctions that disturb the status quo, (2) injunctions that are mandatory rather than prohibitory, and (3) injunctions that provide the movant substantially all the relief it could feasibly attain after a full trial on the merits. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005). In seeking a disfavored injunction, “the movant must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Fish v. Kobach, 840 F.3d 710, 724 (10th Cir. 2016) (quotations and alterations omitted); see also Schrier, 427 F.3d at 1259 (stating that such injunctions “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course” (quotations omitted)).
Plaintiff here seeks an injunction that alters the status quo. Therefore, plaintiff’s motion falls under the heightened standard for preliminary injunctions. See Schrier, 427 F.3d at 1260. III. ANALYSIS
A. Expedited Discovery Plaintiff’s discovery requests are broad and numerous. Plaintiff’s motion for preliminary injunction deals solely with screening, testing, and isolation procedures currently in place at USP Florence. Docket No. 10 at 1. Yet, plaintiff requests discovery on communications between state, regional, and national BOP officials on the BOP’s response to COVID-19 at USP Florence. Docket No. 26 at 3, ¶ 7. Plaintiff
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also requests discovery on communications between the BOP, the “government,” and third-party medical equipment providers. Id., ¶ 7b. Additionally, plaintiff seeks discovery on the decisionmaking process as to which measures USP Florence chose to implement. Id., ¶ 7d. While the facts underlying these various requests may be “unusually difficult or impossible” to obtain without discovery, they are also irrelevant to the preliminary matter before the Court. See Pod-Ners, 204 F.R.D. at 676. What decisions the BOP could have taken is irrelevant to whether defendants should be required to screen, test, and isolate staff and inmates, or whether defendants are already implementing those measures.
Additionally, there are no material factual disputes on which discovery would prove useful. Plaintiff claims – and the Court assumes as true – that inmates at USP Florence “have no guaranteed access to either soap or hand sanitizer at USP Florence.” Docket No. 35 at 5. Plaintiff further alleges that USP Florence is not “systematically testing the prisoners’ temperatures and are only allegedly testing their employees’ temperatures upon entering the facilities.” Id. at 6. Finally, plaintiff claims, and defendants confirm, that inmates are only permitted to wash their laundry once a week. Id. Even if this is all true, it is not material to the requested relief. First, whether or how often inmate’s are provided soap and clean laundry is unrelated to plaintiff’s requested relief of screening, isolation, and testing. Second, while systematic testing of inmates’ temperatures does relate to plaintiff’s requested relief, defendants never claimed to be systematically testing prisoners’ temperatures, and, as will be discussed below, this lack of systematic testing does not demonstrate that defendants are
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disregarding a substantial risk to inmate safety. As a result, the Court finds that there is not good cause for expedited discovery
and plaintiff’s motion for expedited discovery will be denied. B. Preliminary Injunction 1. Evidentiary Hearing and Exhaustion of Administrative Remedies Before reaching the merits of plaintiff’s motion, the Court address two
preliminary matters: (a) the Court’s decision to forgo an evidentiary hearing and (b) exhaustion under the Prison Litigation Reform Act (“PLRA”).3
a. Preliminary Injunction Hearing Federal Rule of Civil Procedure 65(a) does not explicitly require a hearing before a court may rule on a motion for preliminary injunction. Fed. R. Civ. P. 65(a). Additionally, the Tenth Circuit does not require a court to hold such a hearing where one is unnecessary. See Carbajal v. Warner, 561 F. App’x 759, 764 (10th Cir. 2014) (“[Plaintiff] fails to show any error in the district court's denial of injunctive relief, and he asserts no independent ground for why a hearing was appropriate.”); Reynolds and Reynolds Co. v. Eaves, 149 F.3d 1191, 1998 W L 339465, at *3 (10th Cir. 1998) (unpublished table decision) (“[Plaintiff] has failed to cite any Tenth Circuit authority
3 The Court need not resolve the issue of certifying plaintiff’s putative class. First, plaintiff has not moved to certify the class. Second, it is not necessary to resolve class certification before issuing preliminary injunctive relief. See Fish v. Kobach, 189 F. Supp. 3d 1107, 1148 (D. Kan. 2016) (“[C]ase law supports this Court’s authority to issue classwide injunctive relief based on its general equity powers before deciding the class certification motion.”); see also Newberg on Class Actions § 4:30 (5th ed. Dec. 2019 update) (“[A] court may issue a preliminary injunction in class suits prior to a ruling on the merits.”).
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that requires a district court to hold an evidentiary hearing prior to granting or denying a preliminary injunction motion . . . [and] we do not instruct the district court to hold an evidentiary hearing prior to disposition of [plaintiff’s] motion, although the district court is free to do so within its own discretion.” (citation omitted)).
District courts in the Tenth Circuit have declined to hold evidentiary hearings when there are no disputed material facts or where a plaintiff cannot supply sufficient evidence to justify granting the preliminary injunction. See Fenzi v. City of Las Vegas, 2016 WL 10587987, at *1 (D.N.M. Mar. 16, 2016); Park v. Zavaras, No. 08-cv-00737MSK-KLM, 2010 WL 6389329, at *1 (D. Colo. Apr. 19, 2010); see also Monroe Div., Litton Bus. Sys., Inc. v. De Bari, 562 F.2d 30, 33 (10th Cir. 1977) (holding that a defendant was entitled to a hearing where there are genuine issues of material fact).
The sole factual dispute is the extent to which inmates at USP Florence are provided soap. Resolution of this dispute is not necessary to rule on the motion for preliminary injunction. Additionally, given the undisputed procedures that defendants have instituted, plaintiff would be unable to provide sufficient evidence to justify preliminary relief. As a result, the Court declines to hold an evidentiary hearing.
b. Exhaustion under the PLRA As addressed in the order denying the TRO, plaintiff is required to exhaust his administrative remedies before seeking judicial relief, including any available emergency administrative procedures. Docket No. 23 at 6-10. On April 17, 2020, plaintiff filed a request for informal resolution of the issues he has presented in his motion for a TRO and preliminary injunction. Docket No. 31-3 at 3, ¶ 4. That day, he
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was provided with a BP-8 form for formal resolution. Id. Again on the same day, his correctional counsel responded outlining the steps taken at USP Florence. Id. On April 20, 2020, plaintiff began the next step in the process by completing a BP-9, requesting the same relief found in his motion. Id., ¶ 5. On April 21, 2020, Warden Barnhart responded to plaintiff’s request, outlining the steps already taken at USP Florence and informing plaintiff that, if a positive case occurs at USP Florence, all inmates will be screened daily with temperature and symptom checks. Id. at 3-4, ¶ 6. Warden Barnhart informed plaintiff that he could appeal his decision to the Regional Director. Id.
Even assuming that plaintiff has appealed to the Regional Director and has thus completed the administrative grievance process, plaintiff would not be entitled to relief. As discussed below, plaintiff has failed to demonstrate that he is likely to suffer irreparable harm in the absence of an injunction or that he has a likelihood of success on the merits.
2. Irreparable Harm As the Court held in its order on plaintiff’s TRO, defendants have already implemented the relief that plaintiff requests.4 As a result, plaintiff cannot show “that irreparable injury is likely in the absence of an injunction,” Winter, 555 U.S. at 22. Plaintiff requests the following relief: (1) screening of prisoners and staff for symptoms of COVID-19; (2) testing of prisoners and staff demonstrating symptoms of COVID-19;
4 In resolving the merits of plaintiff’s motion, the Court considers the declarations submitted with plaintiff’s Motion for Leave to Supplement Motion for Preliminary Injunction [Docket No. 43].
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(3) quarantining of inmates testing positive for COVID-19; and (4) preventing staff testing positive for COVID-19 from contact with inmates. Docket No. 10 at 1-2.
First, as to screening, all new inmates and high-risk inmates at USP Florence are screened for symptoms of COVID-19. Docket No. 17-1 at 13-14, ¶¶ 33-35, 41. Medical staff checks on general population inmates twice daily to ensure that general population inmates are not exhibiting symptoms. Id. at 15, ¶ 46. Additionally, inmates with a work detail are screened and have their temperatures taken each time they begin and end their work detail. Id., ¶ 45. Work detail screening is conducted away from other inmates at the Health Services Department of USP Florence. Docket No. 31-2 at 6, ¶ 13. Staff are also screened for symptoms and are required to have their temperatures taken. Docket No. 17-1 at 16-17, ¶ 52.
Second, as to testing, USP Florence tests inmates in accordance with CDC protocols. Id. at 17-18, ¶¶ 56-58. This includes analyzing an inmate’s exposure risk profile and determining whether an inmate has had potential exposure to COVID-19 or is exhibiting symptoms. Id. at 18, ¶ 58.
Third, as to quarantine, the BOP has instituted a stay in place order, requiring all prisoners to limit movement as much as practicable. Id. at 7-8, ¶ 16. USP Florence has set up special units for isolation and quarantine. Id. at 16, ¶¶ 48-51. USP Florence also considers quarantining individuals who have had contact with those exhibiting symptoms of COVID-19, even if those individuals do not exhibit symptoms themselves. Id.
Fourth, as to exclusion of staff, any staff members exhibiting symptoms or
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measuring a fever of 100.4 degrees Fahrenheit or above may be excluded, regardless of whether they have tested positive for COVID-19. Id. at 16-17, ¶¶ 52-54. Any staff member who has been tested is not allowed to return to work until that staff member tests negative. Id. at 17, ¶ 55.
Because defendants have instituted all the relief that plaintiff requests, the Court finds that plaintiff will not suffer likely irreparable harm if the Court denies plaintiff’s request for a preliminary injunction. Winter, 555 U.S. at 22. Granting an injunction would not require defendants to change their behavior. As a result, the lack of an injunction is not likely to harm plaintiff.5
Without a showing on irreparable harm, plaintiff cannot succeed on his motion for preliminary injunction. See Winter, 555 U.S. at 23-24 (holding that “[a] proper consideration” of the balance of equities and public interest “alone requires denial of the requested injunctive relief” and, therefore, declining to address the likelihood of success on the merits); see also Big O Tires, LLC v. Felix Bros., Inc. 724 F. Supp. 2d 1107, 1121 (D. Colo. 2010) (declining to address every factor because “the resolution
5 Plaintiff argues that defendants are not systematically testing staff members for COVID-19 or systematically checking inmates’ temperatures. Docket No. 35 at 6. Although plaintiff requested systematic temperature checks in his complaint, plaintiff did not request systematic testing in his motion for preliminary injunction. Plaintiff does not contest that defendants are screening and testing prisoners who exhibit symptoms of COVID-19 in accordance with CDC protocols. Plaintiff cannot expand his requested relief through his reply brief. Novosteel SA v. U.S. Bethlehem Steel Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002) (“[R]eply briefs reply to arguments made in the response brief – they do not provide the moving party with a new opportunity to present yet another issue for the court’s consideration.”). Moreover, defendants state that they will systematically check inmates’ temperatures as soon as there is a positive case at USP Florence. Docket No. 31-3 at 3-4, ¶ 6.
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of them will have no bearing on the outcome”). 3. Likelihood of Success on the Merits Plaintiff argues that, for defendants’ measures to be effective, they must be
implemented. Docket No. 35 at 5-6. Specifically, plaintiff alleges that (1) inmates do not have guaranteed access to soap, (2) defendants are not systematically testing inmates’ temperatures, (3) defendants are only taking employees’ temperatures when they enter USP Florence, and (4) defendants are not testing staff for COVID-19 when they enter the building. Id. Assuming that these allegations are true, they still do not show that defendants are deliberately indifferent and, as a result, plaintiff has not made a strong showing of a likelihood of success on the merits.
In the complaint, plaintiff brings a single claim under the Eighth Amendment that defendants are deliberately indifferent to plaintiff’s serious medical needs. Docket No. 1 at 25. A claim for deliberate indifference to serious medical needs has an objective and a subjective component. The objective component requires that the medical need be “sufficiently serious.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The subjective component requires that “a prison official knows of and disregards an excessive risk to inmate health or safety.” Id. (citation and quotations omitted). “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they respond[] reasonably to the risk.” Farmer v. Brennan, 511 U.S. 825, 844 (1994).
Plaintiff argues that both the objective and subjective component are met. As to the objective component, plaintiff argues that communicable diseases can be
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sufficiently serious to meet the objective prong and that there need not be an existing threat of harm; a sufficiently serious potential harm may satisfy the objective prong. Docket No. 10 at 12-13. Regarding the subjective component, plaintiff first argues that the BOP knows of the substantial risk to inmate health or safety given the steps the BOP has taken to combat COVID-19. Id. at 14-15. In plaintiff’s motion, plaintiff claims that the BOP does not have any response of its own and is taking a “wait and see” approach and thus is disregarding substantial risk to inmate health or safety. Id. at 1617. However, in reply, after receiving information regarding the steps taken at USP Florence, plaintiff argues that (1) inmates are not receiving systematic temperature checks, (2) staff members are not being tested for COVID-19 upon entrance to USP Florence, and (3) inmates do not have guaranteed access to soap or hand sanitizer, and thus, the lack of these measures demonstrate that defendants are disregarding a substantial risk to inmate health or safety. Docket No. 35 at 5-6.
The Court assumes that the objective component is met and that defendants are aware of the risk of COVID-19. Thus, plaintiff must demonstrate that defendants are disregarding that risk. As outlined above, defendants are: (1) screening and testing staff and inmates in accordance with CDC protocols; (2) separately accounting for and screening high-risk individuals; and (3) checking on general population inmates twice daily to ensure that they are not exhibiting symptoms. Docket No. 17-1 at 13-18, ¶¶ 33 -50, 52-53, 55, 58. While defendants may not be testing every staff member for COVID-19 when he or she enters USP Florence or systematically checking every inmate’s temperature, defendants are complying with CDC protocols. Compliance with
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CDC protocols does not demonstrate that defendants are disregarding a substantial risk to inmate health or failing to respond reasonably to the risks of COVID-19.
The one factual dispute pertains to whether and when inmates are provided soap at no cost. Docket No. 35 at 3. Plaintiff claims that it is difficult to receive soap and that defendants are not providing soap to inmates unless they have no money in their account. Docket No. 35-1 at 1-2, ¶ 5; see also Docket No. 35-2 at 2, ¶¶ 8-9. Some inmates were spending their commissary money on things other than soap and then asking the BOP to provide their soap. Docket No. 35-1 at 1-2, ¶ 5; Docket No. 352 at 2, ¶¶ 6-9. In response, USP Florence has limited commissary purchases to hygiene products. Docket No. 35-2 at 2, ¶ 6. Defendants state that i nmates who cannot afford soap are able to obtain it.6 Docket No. 17-1 at 19, ¶ 62. Plaintiff has previously purchased soap. Docket No. 31-3 at 3-4, ¶ 6. This factual dispute alone does not demonstrate that defendants are failing to respond reasonably to the risks of COVID-19.7
Plaintiff argues that the situation and procedures in place at USP Florence may have changed since plaintiff’s last filing. Docket No. 42 at 1, ¶ 4. However, the BOP website states that Phase Seven includes all of the previous precautions through June 30, 2020. COVID-19 Action Plan: Phase Seven, Fed. Bureau of Prisons (May 20,
6 Hand sanitzer is not available due to it containing alcohol. Docket No. 31-3 at 3-4, ¶ 6.
7 Even if it did, it is unclear how that conclusion would help plaintiff, as he requests screening, testing, and isolation of inmates and staff, all procedures already in place at USP Florence.
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2020, 4:00 PM), https://www.bop.gov/resources/news/20200520_covid-19_phase _seven.jsp. Additionally, there continues to be no COVID-19 cases among inmates or staff at USP Florence. See COVID-19 Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus (last updated June 4, 2020). While plaintiff argues that the situation may have changed, there is no evidence before the Court demonstrating that there have been any changes to the BOP’s response, other than to extend the length of the procedures in place at USP Florence. The declarations submitted with plaintiff’s motion to supplement corroborate that the procedures are still in place, including the stay in place order. See Docket No. 43-1 at 3 (“21 hours a day cell mates are within five or six feet of each other.”); Docket No. 43-2 at 3 (“I have a cell mate, for 21 hours a day we are within 5 feet of each other.”). Plaintiff has failed to submit any evidence that the situation at USP Florence has changed or that any changes would support his motion.
The Court finds that, taken together, defendants’ procedures demonstrate that defendants have reasonably responded to the risks of COVID-19 and have not disregarded a substantial risk to inmate health. As a result, plaintiff has not made a strong showing on the likelihood of success on the merits. IV. CONCLUSION
For the foregoing reasons it is ORDERED that plaintiff’s Opposed Motion for Status Conference [Docket No. 42] is DENIED. It is further ORDERED that plaintiff’s Motion for Leave to Supplement Motion for Preliminary Injunction [Docket No. 43] is GRANTED. It is further
18

Case 1:20-cv-00756-PAB-NYW Document 45 Filed 06/04/20 USDC Colorado Page 19 of 19 ORDERED that plaintiff’s Motion for Limited Discovery [Docket No. 26] is
DENIED. It is further ORDERED that the portion of Plaintiffs’ Motion for a Temporary Restraining
Order and Preliminary Injunction [Docket No. 10] that seeks a preliminary injunction is DENIED.
DATED June 4, 2020. BY THE COURT: PHILIP A. BRIMMER Chief United States District Judge
19

 
 Case 1:20-cv-00756-PAB-NYW Document 56 Filed 07/16/20 USDC Colorado Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

EDWARD NELLSON, individually, and )

a CLASS of similarly-situated persons,

)

)

Plaintiffs,

)

)

v.

) Civil Action No.:

) 1:20-cv-00756-PAB-NYW

WARDEN J. BARNHART, in his

)

official capacity

)

)

And

)

)

FEDERAL BUREAU OF PRISONS,

) JURY DEMANDED

)

Defendants.

)

FIRST AMENDED COMPLAINT FOR DECLARATIVE AND INJUNCTIVE RELIEF REGARDING EDWARD NELLSON AS AN INDIVIDUAL AND ALL
SIMILARLY SITUATED PERSONS AS A CLASS

Plaintiff, Edward Nellson, files this Complaint on behalf of himself, and as a

representative of all similarly situated members of a class, against the Federal Bureau of

Prisons (“BOP”), and Warden Barnhart in his individual and official capacity, using 28

U.S.C. §§ 1343(a)(4), 2201, 2202, and Fed. R. Civ. P. 65, to vindicate their rights to be

free from cruel and unusual punishment under the Eighth Amendment and other applicable

Constitutional provisions.

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INTRODUCTION The people of this country face a critical threat from the novel coronavirus COVID19. This virus has been declared a pandemic by the World Health Organization. https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-theyhappen (last accessed March 15, 2020). This virus is spread person to person, with the CDC recommending the disbandment of all mass gatherings, social distancing is key to avoiding the spread of this illness. https://health.clevelandclinic.org/covid-19-understandingquarantine-isolation-and-social-distancing-in-a-pandemic/ (last accessed March 15, 2020). Unfortunately, for people in prison, social distancing is not possible. Further, medical care and testing is entirely in the hands of Defendant Federal Bureau of Prisons, which literally holds prisoners’ lives in their hands. Testing and isolation are the key to preventing the spread of COVID-19 in prison. However, despite this fact and despite the fact that prisons are a known hotbed for infections and viral pandemics, Defendants have yet to implement a systemic testing protocol for prisoners and staff. This is outrageous and a dereliction of duty towards some of the most vulnerable people in our society. By failing to test prisoners and staff, Defendants are knowingly risking the lives of every prisoner in the BOP, including USP Florence.
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JURISDICTION AND VENUE 1.
Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343(a)(4). This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201 and 2202. This Court may also grant injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. This Court has authority to award costs and attorneys’ fees under 42 U.S.C. § 1988.
2. Venue is proper under 28 U.S.C. § 1391(b) and L.R. 3.1(B)(3) because (1) a substantial part of the events and omissions giving rise to Plaintiff’s claims occurred within this District and Division; (2) Defendants reside and transact business in this District and Division; and (3) Defendants transact business throughout the country, therefore any judicial district where Defendant is subject to personal jurisdiction with respect to this action is appropriate.
PARTIES 3.
At all times relevant to this Complaint, Plaintiff Edward Nellson was a citizen of the United States and is currently incarcerated in Colorado. Nellson is currently a prisoner in the BOP. At all times relevant to this Complaint, Nellson had clearly established legal rights under state and federal law and the United States Constitution. Nellson submits
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himself to the jurisdiction and venue of this Court and is entitled to bring this action under state and federal law for all general, special, and any other permissible damages as well as for Declaratory and Injunctive relief.
4. Defendant Federal Bureau of Prisons (“BOP”) is a federal agency organized and existing under federal laws and has been so for a period preceding six months prior to the filing of this case. Also, at the time of the subject event that has given rise to this lawsuit, BOP was responsible for the care and protection of all individuals remanded by the Courts into the custody of the BOP. BOP has developed, promoted, and instituted a practice and policy of responding to the spread of the deadly coronavirus pandemic without testing and isolating individual prisoners for the virus.
5. Defendant Warden J. Barnhart is the Warden at USP Florence. Defendant Barnhart is responsible for the implementation or non-implementation of any practice and procedure with respect to screening, testing, and addressing COVID-19 in USP Florence, CO. Defendant Barnhart has ultimate authority within USP Florence.
6. The Defendants have adopted and continue to implement and enforce—by affirmative act or omission—a policy that leaves Plaintiff and all similarly situated individuals exposed to infection from an incredibly deadly virus running pandemic through
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this country. Nellson is using the U.S. Constitution, federal statutes, 28 U.S.C. §§ 1343(a)(4), 2201, 2202, and Fed. R. Civ. P. 65, and other applicable federal laws, as the vehicle to sue the BOP regarding his federal claims.
7. Defendants’ practice and policy ensures that the prisoners within BOP, including USP Florence, are continually exposed to a multitude of other prisoners, in close proximity, without adequate testing to ensure that prisoners with the virus are removed from that population.
STATEMENT OF FACTS A. COVID-19 is identified in Wuhan, China, and begins its spread
8. China reported an outbreak of a flu-like illness in the city of Wuhan, in the Hubei province, to the World Health Organization on December 31, 2019. https://www.pharmaceutical-technology.com/news/coronavirus-a-timeline-of-how-thedeadly-outbreak-evolved/ (last accessed on March 15, 2020). This new coronavirus is labelled COVID-19. Id.
9. Within 11 days the first death was reported in China. Id. The disease was confirmed to have spread to Thailand two days later, on January 13, 2020, and Japan two days after
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that, on January 15, 2020. Id. South Korea and the United States report their first cases of the virus within the next week. Id.
10. In response to this international spread, the World Health Organization (“WHO”) declared a health emergency on January 22, 2020. Id.
11. Over the next week Singapore, Nepal, France, Mexico, Sri Lanka, Germany, the United Arab Emirates, Australia, and Taiwan all report cases of the COVID-19 virus. Id. Additionally, by January 29, 2020, the first cases of community spread of COVID-19, that is spread within a country to individuals who had not visited Wuhan, China, or come into contact with someone who had, were reported in Japan, Taiwan, and Germany. Id.
12. On January 30, 2020, the United States reported its first case of domestic spread of the Coronavirus. Id. The next day, with the death toll confirmed at 213, the WHO declared COVID-19 a global health emergency. Id.
13. By February 12, 2020, the death toll from COVID-19 has passed 1,100 and the Mobile World Congress was cancelled over fears of the virus. Id. By the next day, the death toll had risen by 254, to 1,369. Id.
14.
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On February 27,2020, with the death toll from COVID-19 topping 2,800 and having spread to a dozen other countries, the United States detected the first suspected community spread case within the U.S.
15. On March 11, 2020, the WHO declared COVID-19 a pandemic. Id. At this time, the death toll has passed 5,800. Id. COVID-19 has spread to 126 countries and Vatican City. https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/ world-map.html (last accessed March 15, 2020). B. COVID-19 spreads throughout the United States
16. Having confirmed the first case of COVID-19 in the United States on January 21, 2020, the virus has spread to 46 states and the District of Columbia, according to the Centers for Disease Control (“CDC”). https://www.cdc.gov/ coronavirus/2019-ncov/casesin-us.html (last accessed on March 15, 2020). An employee of the New York Department of Corrections and an employee of the Washington Department of Corrections have tested positive for COVID-19 on March 15, 2020, and March 12, 2020, respectively.
17. As of March 13, 2020, the U.S. had reported 1,629 cases of COVID-19 and 41 deaths. Id. Those numbers are rapidly increasing. By March 15, 2020, according to other sources, COVID had reached over 3,000 cases and 57 deaths.
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https://www.livescience.com/coronavirus-updates-united-states.html (last accessed March 15, 2020).
18. Nursing homes nationwide, where people live in close quarters daily, have limited visitors and begun testing of residents and workers. https://www.washingtonpost.com/nation/2020/03/12/coronavirus-seattle-nursing-homes/ (last accessed March 15, 2020).
19. The President declared the COVID-19 spread within the United States a national emergency on March 13, 2020. https://www.whitehouse.gov/ presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirusdisease-covid-19-outbreak/ (last accessed March 15, 2020). This proclamation noted that COVID-19 threatens to strain the U.S. hospital and medical resources. Id. C. How COVID-19 is spread, its effects and its deadliness
20. COVID-19 is mainly spread person to person, both by being in close contact and from respiratory droplets spread through coughing and sneezing. https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed on March 15, 2020).
21.
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COVID-19 is, however, transmissible by contact with contaminated surfaces as well as by persons who do not show symptoms. Id.
22. While COVID-19 spread is slower than that of influenza, its reproductive number, that is the number of people infected per infected person, is between 2 and 2.5, higher than that of the flu. https://www.who.int/docs/default-source/coronaviruse/situationreports/20200306-sitrep-46-covid-19.pdf?sfvrsn=96b04adf_2 (last accessed on March 15, 2020).
23. One major difference between COVID-19 and influenza is that, while there are some people who can spread the virus 24-48 hours prior to symptom onset, pre-symptom spread is not a primary driver of transmission for COVID-19. Id.
24. The main symptoms of COVID-19 are fever, cough, and shortness of breath. Id. It can, however, lead to pneumonia, cytokine storm, and multi organ failure leading to death. https://www.aljazeera.com/news/2020/02/infected-coronavirus-200210205212755.html (last accessed March 15, 2020).
25.
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15% of those infected with COVID-19 develop a severe infection, requiring hospitalization and oxygen treatment. https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200306-sitrep-46-covid19.pdf?sfvrsn=96b04adf_2 (last accessed on March 15, 2020).
26. 5% of individuals infected with COVID-19 develop critical infections, requiring ventilation in a hospital. Id.
27. 3-4% of COVID-19 patients dies as a result of the infection, which at this time is a rate well in excess of the flu, which has a mortality rate well below 0.1%. Id. D. Testing is critical for containment of COVID-19
28. With the heightened infectivity of COVID-19, social distancing, that is keeping a distance from infected individuals, and medical isolation are critical to prevent the spread of the virus. https://www.cdc.gov/coronavirus/2019-ncov/ cases-updates/summary.html (last accessed March 15, 2020).
29. Social distancing is not available for prisoners in BOP prisons, including USP Florence. BOP prisons currently house 175,483 per the BOP. https://www.bop.gov/mobile/about/ population_statistics.jsp (last accessed March 15,
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Case 1:20-cv-00756-PAB-NYW Document 56 Filed 07/16/20 USDC Colorado Page 11 of 40
2020). This leaves prisoners like Nellson packed into close quarters, housed with other prisoners, with multiple cells in a single pod, sharing meals multiple times per day.
30. BOP prisoners, including those as USP Florence, including Plaintiff Nellson, and putative class members, take meals in a communal chow hall, utilize communal showers, have cells with open toilets in them, and have communal recreation areas.
31. Without the ability to isolate and engage in social distancing, isolation of prisoners who have COVID-19 from this population prior to passing the infection is critical to controlling the spread of this illness.
32. Isolating all prisoners with the symptoms of COVID-19, fever, cough, or shortness of breath, and testing for the virus is the only effective means to prevent the spread of COVID-19 in this captive population. E. COVID-19 arrives in Colorado.
33. On March 10, 2020, Colorado had 33 cases of COVID. https://www.nbc11news.com/content/news/15-total-cases-of-COVID-19-in-Coloradoone-confirmed-case-in-Gunnison-County--568667371.html (last accessed March 15, 2020).
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34. On March 14, 2020, Colorado Gov. Jared Polis issued the extraordinary executive order requiring all Colorado ski resorts to close.
35. As of March 15, 2020, there were 131 presumptive positive cases of COVID in Colorado and one confirmed death. https://www.kktv.com/content/news/ BREAKING-568535251.html.
36. As of March 15, 2020, Colorado had identified COVID-19 cases in seventeen counties, including Denver County and Arapahoe County, both highly populated counties. Colorado has also identified one COVID-19 case in Pueblo County, a county near USP Florence and other BOP prisons.
37. On March 16, 2020, the Colorado Governor’s Office ordered the closure of all bars, restaurants, theaters, and casinos statewide, for anything other than takeout or delivery. https://drive.google.com/file/d/1pXAFPXCTLqBZvTJpuqrH45YeLB_Jc2wP/view (last accessed March 17, 2020). Even when people come to take out food, they are only allowed to be on premises five at a time. Id.
38.
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As stated above, USP Florence prisoners eat together and continue to serve each

other food, with no testing or monitoring for symptoms. Further, USP Florence prisoners

cannot be “five at a time” in their various living arrangements. Unable to take the

precautionary measures, USP Florence prisoners are sitting ducks in this pandemic, at the

mercy of Defendants’ inaction.

39.

Upon information and belief, the number of COVID-19 infections is expected to

grow exponentially over the next days and weeks, if not months.

F. The CDC and subject-matter experts recognize the risk of the spread of disease, like influenza, within its institutions.

40.

Even with the flu, the CDC had recommended “Rapid Detection of Cases” to be

done via testing of people with influenza-like illnesses to determine what viruses were

circulating

at

the

institution.

https://www.cdc.gov/h1n1flu/

guidance/correctional_facilities.htm (last accessed March 15, 2020).

41.

Prisoner populations are sicker than the general population. A 2018 study in The

Lancet that incarcerated individuals have a higher burden of infectious illnesses such as

HIV, hepatitis B and C, syphilis and tuberculosis than non-incarcerated individuals.

https://www.thelancet.com/journals/lancet/article/ PIIS0140-6736(18)31251-0/fulltext

(last accessed March 15, 2020).

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42. Further, incarcerated populations have chronic, noninfectious diseases such as COPD, heart failure and kidney disease which also increase the risk for infections such as coronavirus. Id.
43. There are also clear indications that mortality is higher among the senior population. See e.g. https://www.thelancet.com/journals/lancet/article/ PIIS0140-6736(20)305663/fulltext#seccestitle150 (last accessed March 15, 2020).
44. 6% of the BOP population is aged 60 and above while 19.5% of the BOP prisoner population is aged 51 and above. https://www.bop.gov/about/statistics/ statistics_prisoner_age.jsp (last accessed March 15, 2020). G. The BOP’s COVID-19 Response is inadequate
45. The BOP, including USP Florence, has made a minimal response to the COVID-19 pandemic. The BOP has suspended social visits, prisoner movement, and legal visits. https://www.bop.gov/coronavirus/covid19_status.jsp (last accessed March 15, 2020.
46.
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Upon information and belief, neither BOP nor USP Florence have ordered COVID19 testing kits. https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federalprisons-providing-significant/story?id=69433690 (last accessed March 15, 2020).
47. To date, the BOP has not tested all prisoners within USP Florence for COVID-19. Ex. 1, Nellson Dec. at ¶ 7.
48. The BOP is currently screening staff members upon entry to USP Florence for any symptoms or exposure to COVID-19 but is not testing them.
49. Despite requests from prisoners, the BOP has not provided counseling to at-risk prisoners about COVID-19. Ex. 1, Nellson Dec. at ¶ 25; Ex. 4 Adams Dec. at ¶ 12 (“I’ll be 65 years old in a month and a half. They’ve never talked to me about COVID. Ain’t nobody says nothing. If someone brings it up, staff just walk away. Don’t nobody care.”).
50. USP Florence prisoners assigned to kitchen and other sanitary-related duties are continuing to perform those duties. They are doing this with no screening and no testing to ensure they are not carriers. “The guards also don’t screen the prisoners daily. No inmate gets their temperature taken, period. We never have our temperature taken, including the guys who leave the unit for work-duty to work in the kitchen or laundry or commissary.”
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Ex. 1, Nellson Dec. at ¶¶ 14-15. See also Ex. 4, Adams Dec. at ¶ 12 (“Guys who work in the commissary, the kitchen, and the laundry are the only ones going to work right now. They aren’t screened or tested at all though.”).
51. Though the BOP states it is screening prisoners before they begin their shifts in the kitchen, commissary, laundry, or other essential job, these prisoners often are not screened at all. Ex. 1, Nellson Dec. at ¶ 14; Ex. 4, Adams Dec. at ¶ 12.
52. Mr. Candelaria works as a chemical clerk, moving cleaning chemicals between storage and his unit. Ex. 2, Candelaria Dec. at ¶ 6.
53. When he takes his cart to the office, Mr. Candelaria can only go at the same time they call him and other chemical carts from different units. Ex. 2, Candelaria Dec. at ¶ 6.
54. When the carts are returned, Mr. Candelaria is in close contact with about thirty people from other units before returning to his own unit. Ex. 2, Candelaria Dec. at ¶ 6.
55. Mr. Candelaria has never been screened or tested, despite interacting with prisoners from other units. Ex. 2, Candelaria Dec. at ¶ 6.
56.
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Mr. Lymon worked in the laundry and was a laundry cart pusher. Ex. 3, Lymon Dec. at ¶ 14.
57. Mr. Lymon has never had his temperature taken as a precaution to COVID-19. Ex. 3, Lymon Dec. at ¶ 14.
58. Louis Holmes works in the kitchen at USP Florence on the afternoon, or “PM,” shift. Ex. 5, Holmes Dec. ¶ 16.
59. Though the prisoners working in the kitchen were having their temperatures checked at the beginning of the COVID-19 pandemic, that practice was short-lived. Ex. 5, Holmes Dec. ¶ 18.
60. After approximately three weeks or a month, the kitchen workers stopped having their temperatures checked. Ex. 5, Holmes Dec. ¶ 18.
61. Moreover, the bathrooms for kitchen workers are not stocked with soap, nor have they been for a year. Ex. 5, Holmes Dec. ¶ 11.
62.
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Mr. Holmes works in the kitchen with around fifteen other workers. All but two men are from other units. Ex. 5, Holmes Dec. ¶ 17.
63. Without such screening, the Defendant is knowingly leaving Nellson and all similarly situated prisoners in USP Florence exposed to the spread of a deadly virus that has created a pandemic across the globe.
64. Further, upon information and belief, certain BOP facilities have no hand sanitizer and no soap for hand washing. https://www.motherjones.com/politics/2020/03/thecoronavirus-is-spreading-and-reportedly-theres-no-soap-at-this-federal-jail-in-brooklyn/ (last accessed March 15, 2020).
65. Though the BOP claims it is providing hand soap free of charge to prisoners who cannot afford it, prisoners have not received any hand soap from the BOP free of charge. Ex. 2, Candelaria Dec. at ¶ 14; Ex. 3, Lymon Dec. ¶ 7-10; Ex. 4, Adams Dec. ¶¶ 5-7; Ex. 5, Holmes Dec. ¶¶ 10-12. Defendants’ representations have been starkly contradicted by the individuals living the conditions every day.
66.
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Rather, if a prisoner is indigent and has no funds with which to purchase hand soap,

he must wait until he receives more money or hope that another prisoner will share his

soap. Ex. 3, Lymon Dec. at ¶ 18; Ex. 4, Adams Dec. ¶ 6.

67.

Many of the people in USP Florence do not have any soap available. Ex. 3, Lymon

Dec. at ¶ 4; Ex. 4, Adams Dec. ¶ 7; Ex. 5, Holmes. ¶ 12.

68.

Mr. Nellson and other prisoners in his unit have developed a dry cough, fatigue,

chills, and muscle aches. Ex. 1, Nellson Dec. at ¶ 19 (“Everyone I know has been having a

dry cough and chills. I have cold sweats and fatigue too.”); Ex. 2, Candelaria Dec. ¶ 26 (“A

couple weeks ago, I came down with fatigue, chills, and a cough, and I’ve been super tired.

I’ve been getting a lot of muscle cramps and fatigue. I’m really tired, it feels like I’m

running out of power.”); Ex. 6, Upshaw Dec. ¶ 14 (“I’ve had a runny nose, stomach pain,

and headaches for a month or two now. I also have a cough sometimes. I have a lot of

health problems. I’ve never been seen for these symptoms.”). These symptoms have

persisted for weeks with no t

69.

In communications with prisoners, USP Florence recognizes these are the precise

symptoms for COVID 19, “Perform an exit screening for COVID-19 symptoms (fever,

cough,

shortness

of

breath

and

temperature).”

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https://www.bop.gov/resources/news/20200319_covid19_update.jsp (last accessed July 2, 2020).
70. Mr. Nellson was recently taken out of the facility for a medical appointment. He was not tested at the medical appointment, despite reporting his chills and muscle aches. Ex. 1, Nellson Dec. at ¶ 19.
71. Mr. Nellson was then returned to USP Florence; upon reentry, he was asked if he had any symptoms, including chills and muscle aches. Again, he reported his chills and muscle aches. Ex. 1, Nellson Dec. at ¶ 20.
72. The officer asking for symptoms then waved a laser thermometer at Mr. Nellson through a metal grate in the car. Mr. Nellson does not believe the thermometer read his temperature accurately because the wave was haphazard at best. Ex. 1, Nellson Dec. at ¶¶ 20-21.
73. The officer then allowed Mr. Nellson to reenter the facility and his unit without any further testing, despite his reports of chills and muscle aches. Ex. 1, Nellson Dec. at ¶ 20.
74.
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Mr. Nellson was never reevaluated or tested for COVID-19, despite reporting symptoms of it.
75. Terry Upshaw had a similar experience. After being taken to the hospital in Colorado Springs, the officers’ temperatures were tested upon reentering USP Florence. They did not, however, take Mr. Upshaw’s temperature. Ex. 6, Upshaw Dec. ¶¶ 12-13.
76. The BOP gave both its staff and prisoners masks to wear in the facility. Ex. 1, Nellson Dec. at ¶ 9.
77. The first masks were flimsy and deteriorated quickly. Ex. 1, Nellson Dec. at ¶ 9.
78. The BOP then gave out cloth masks and has exchanged them only once in the last month. Ex. 3, Lymon Dec. ¶ 4.
79. Prisoners are not allowed out of their cells without masks on. Ex. 1, Nellson Dec. at ¶ 10.
80.
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If a prisoner loses his mask, he does not get a replacement. Instead, he is told the BOP does not have anymore because they ran out. Ex. 2, Candelaria Dec. ¶ 5; Ex. 3, Lymon Dec. at ¶ 5.
81. If a prisoner loses his mask but still needs to leave his cell to take a shower, use the law library, or talk on the phone, he must then borrow someone else’s mask. Ex. 3, Lymon Dec. at ¶ 5; Ex. 4, Adams Dec. ¶ 4; Ex. 5, Holmes Dec. ¶ 7. Mask sharing is the epitome of fomites and endangers all prisoners by actively aiding the spread of the disease.
82. Though wearing masks is required, staff and prisoners alike are inconsistent with wearing their masks. Ex. 1, Nellson Dec. at ¶ 12; Ex. 5, Holmes Dec. ¶ 6.
83. BOP staff is not screening prisoners consistently to check for symptoms either; rather, they did so for a short time in March, and quickly stopped soon after. Ex. 4, Adams Dec. ¶ 15; Ex. 5, Holmes Dec. ¶ 22; Ex. 6, Upshaw Dec. ¶ 16.
84. Very few prisoners in USP Florence have been tested for COVID. Ex. 4, Adams Dec. ¶ 13; Ex. 5, Holmes Dec. ¶ 20; Ex. 6, Upshaw Dec. ¶ 16. In fact, the BOP reports it has conducted 22 tests on a population of 718 prisoners.1
1 https://www.bop.gov/coronavirus/ (showing 11 prisoners have had completed testing, and 11 more have pending tests, in a facility with 718 prisoners).
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85. The law library has recently been reopened, and prisoners are allowed to go at the same time as prisoners from other units. Ex. 1, Nellson Dec. at ¶ 17.
86. When prisoners use the computers in the law library or use the phones, they are often shoulder to shoulder and cannot be socially distant. Ex. 2, Candelaria Dec. at ¶ 21; Ex. 4, Adams Dec. ¶ 9; Ex. 6, Upshaw Dec. ¶ 9.
87. The computers and the phones are not sanitized after every person uses them. If a prisoner wants it clean before using it, he must somehow bring his own sanitizer to use. Ex. 4, Adams Dec. ¶¶ 10-11; Ex. 5, Holmes Dec. ¶¶ 14-15.
88. Prisoners from other units go to psychology at the same time. Ex. 1, Nellson Dec. at ¶ 17.
89. Prisoners from different units are placed in the Special Housing Unit (“SHU”) together, where they can talk to each other all the time. Ex. 1, Nellson Dec. at ¶¶ 18.
90. Prisoners are moved in and out of the SHU and back to their units constantly. Ex. 1, Nellson Dec. at ¶ 18.
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91. USP Florence has also reopened its yard, meaning prisoners from different units go to the same yard at the same time and intermingle with each other. Ex. 6, Upshaw Dec. ¶ 8.
92. Louis Holmes works in the kitchen at USP Florence on the afternoon, or “PM,” shift. Ex. 5, Holmes Dec. ¶ 16.
93. Though the prisoners working in the kitchen were having their temperatures checked at the beginning of the COVID-19 pandemic, that practice was short-lived. Ex. 5, Holmes Dec. ¶ 18.
94. After approximately three weeks or a month, the kitchen workers stopped having their temperatures checked. Ex. 5, Holmes Dec. ¶ 18.
95. Moreover, the bathrooms for kitchen workers are not stocked with soap, nor have they been for a year. Ex. 5, Holmes Dec. ¶ 11.
96. Mr. Holmes works in the kitchen with around fifteen other workers. All but two men are from other units. Ex. 5, Holmes Dec. ¶ 17.
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97. If any one individual contracts COVID-19, allowing him to be in contact with people from other units will cause the virus to spread, especially if the prisoners are not being tested.
98. This risk is even greater when, considering Mr. Nellson’s experience, the BOP is not taking symptoms seriously, and allowing symptomatic people to return to their units before being further screened and tested. H. BOP is stalling Mr. Nellson’s grievance process.
99. After being assured there was an emergency grievance process, Mr. Nellson attempted to exhaust his administrative remedies.
100. On April 17, 2020, Mr. Nellson submitted his informal resolution form. He received a response the same day, stating “At USP Florence, various measures have been implemented to safeguard inmates from COVID-19. These steps include, but not limited to, screening staff & inmates daily, providing soap for inmates to use, and having medical providers conducting rounds each day in your housing unit.”
101.
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Mr. Nellson then submitted his BP-9 on April 20, 2020. He then received a response from Warden Barnhart on April 21, 2020.
102. Mr. Nellson then submitted his BP-10 to the Regional Director on April 23, 2020. He received a notice on May 6, 2020, from the North Central Regional Office informing him that “additional time is needed to respond to the regional appeal identified below. We are extending the time for response as provided for in the administrative remedy program statement.” Ex. 7.
103. Mr. Nellson did not receive a response to his BP-10 by the extension deadline. BOP simply ignored his grievance.
104. When Mr. Nellson rightfully treated this silence as a denial, he attempted to file a BP-11.
105. BOP then told Mr. Nellson could not do so until he received a response to his BP10.
106.
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BOP is therefore interfering and delaying Mr. Nellson’s grievance process while arguing to this Court he must complete it before he can move forward with this lifesaving lawsuit.
107. Defendants are also keeping prisoners in the dark regarding the grievance process, “The only reason we get stuff in here is we have prisoners who have been in here long enough to know the policies and know how to write grievances. We can’t access the grievance policy because we’re told it’s sensitive information. They just give us an inmate handbook that has a short process of how to grieve an issue. Most people don’t make it past the BP-8 or BP-9 step because they don’t know what to do.” Ex. 5, Holmes Dec. at ¶ 25. See also Ex. 5, Holmes Dec. at ¶ 26 (“We’ve only been told about the emergency grievance process for sexual assault stuff under PREA.”).
108. Notably, BOP has not informed prisoners at USP Florence of the emergency grievance procedure available at the facility, “We’ve never been told there’s an emergency process where the Warden has to respond to us in 3 days.” Id. at ¶ 27. I. Class Action Allegations
109. Plaintiff brings this suit as a class action on behalf of himself and all others similarly situated (the “Class”) pursuant to Rules 23(a), 23(b)(1), and 23(b)(2).
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110. Plaintiff seeks to represent the following Class on claims for declaratory and injunctive relief: All current and future prisoners in the custody of the BOP at USP Florence during the course of the COVID-19 pandemic.
111. Plaintiff reserves the right to amend the class definition if further investigation and discovery demonstrates that the class definition should be narrowed, expanded, or otherwise modified. Excluded from the Class are all non-human persons/entities, Defendants, and Defendants’ attorneys. Also excluded from the Class is any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff.
112. As a result of Defendants’ pattern, practice, and policy of failing to screen prisoners in the custody of BOP, test prisoners who exhibit symptoms of COVID-19, and then isolate prisoners who test positive for COVID-19, the BOP is doing nothing to actually identify and prevent the spread of the COVID-19 virus. As a result, members of the Class are or will be deprived of their constitutional rights to be free of cruel and unusual punishment under the Eighth Amendment. Therefore, Plaintiff and putative Class members seek declaratory and injunctive relief to remedy Defendant BOP’s illegal and unconstitutional actions, policies, and practices.
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113. As a result of Defendants’ pattern, practice, and policy of failing to screen staff for symptoms, test staff members who exhibit COVID-19 symptoms, and exclude staff members in contact with prisoners in the custody of the BOP who test positive for COVID19, Defendants doing nothing to actually identify and prevent the spread of the COVID-19 virus. As a result, members of the Class are or will be deprived of their constitutional rights to be free of cruel and unusual punishment under the Eighth Amendment. Therefore, Plaintiff and putative Class members seek declaratory and injunctive relief to remedy Defendants’ illegal and unconstitutional actions, policies, and practices.
114. The requirements of Rule 23(a), 23(b)(1), and 23(b)(2) are satisfied by this class action. 1. Rule 23(a) i. Numerosity
115. The information as to the exact and present size of the Class and the identity of the persons in the Class is in the control of the BOP. On information and belief, the Class presently encompasses approximately 718. This number is based on the BOP’s count of prisoners, available as of July 2, 2020. The number of persons who are members of the
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Class described above are so numerous that joinder of all members in one action is impracticable.
ii. Commonality 116.
Questions of law and fact common to the entire Class predominate over individual questions because the actions of Defendant BOP complained of herein—with respect to Cruel and Unusual Punishment—were generally applicable to the entire class. The common answers that Plaintiffs seek are simple and will result in a common resolution for the class. These legal and factual questions include, but are not limited to:
a. Whether the BOP, at USP Florence, has implemented and condoned a medical response to the COVID-19 pandemic that demonstrates deliberate indifference to the medical needs of the class members in failing to provide for the isolation of prisoners that show symptoms of the COVID-19 virus;
b. Whether the BOP, at USP Florence, has implemented and condoned a medical response to the COVID-19 pandemic that inflicts cruel and unusual punishment as proscribed by the Eighth Amendment to the Constitution in failing to isolate prisoners that demonstrate symptoms of COVID-19 virus;
c. Whether the BOP, at USP Florence, has implemented and condoned a medical response to the COVID-19 pandemic that demonstrates deliberate indifference to the medical needs of the class members in failing to provide for the systematic
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testing of prisoners that show symptoms of the COVID-19 virus for that virus; and, d. Whether the BOP, at USP Florence, has implemented and condoned a medical response to the COVID-19 pandemic that demonstrates inflicts cruel and unusual punishment as proscribed by the Eighth Amendment to the Constitution in failing to systematically test prisoners that demonstrate symptoms of COVID-19 virus for that virus. iii. Typicality
117. Plaintiff’s claims are typical of the members of the Class because Plaintiff and all Class members were injured by the same policy and medical response to the COVID-19 pandemic as described in this Complaint: each exposed to suffering or death by the pandemic spread of COVID-19 from untested, un-isolated, prisoners showing symptoms of COVID-19. Plaintiff’s claim against the Defendants with regard to Eighth Amendment arises from the same practices and course of conduct that gives rise to the Eighth Amendment claim against Defendants of the Class members and is based on the same legal theories. iv. Adequacy
118.
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Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff has no interests that are contrary to or in conflict with those of the Class he seeks to represent.
119. Plaintiff has retained competent counsel in both civil rights and class action litigation and will provide affidavits in support of this in his motion for class certification. 2. Rule 23(b)(1)
120. In this case, prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members and would establish incompatible standards of conduct for the party opposing the class. Here, if any other potential class member filed a lawsuit in this Court or in State Court seeking to declare the Defendants medical response plan to the COVID-19 virus this could create the risk of inconsistent or varying adjudications between or within these courts. In addition, if any other potential class member filed a lawsuit in this Court or in State Court seeking to enjoin Defendants COVID-19 response plan, the Defendant could be in the bizarre and untenable position of being unable to comply with one court order without simultaneously violating another court order. Therefore, certification of the Class under Rule 23(b)(1) is proper. 3. Rule 23(b)(2)
121.
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Relief concerning Plaintiff’s rights under the laws herein alleged and with respect to the Class would be proper. Based on the practice and policy of failing to:
• screen prisoners and staff members of USP Florence, for symptoms of COVID-19, including fever, every day or at least every other day;
• test all prisoners and staff members of USP Florence, for COVID-19, understanding that each day more people test positive who are asymptomatic;
• test prisoners and staff members of USP Florence, who exhibit symptoms of COVID-19;
• isolate prisoners of USP Florence, testing positive for COVID-19; and • exclude staff members of USP Florence, testing positive for COVID-19 from
contact with BOP prisoners; • identify prisoners eligible for home confinement; and • identify prisoners eligible for transfer to less crowded BOP facilities. Defendants have acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with regard to Class members as a whole and certification of the Class under Rule 23(b)(2) proper.
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COUNT I DECLARATORY AND INJUNCTIVE RELIEF FOR DEPRIVATION OF EIGHTH AMENDMENT RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT BY RECEIVING ACCESS TO ADEQUATE MEDICAL CARE
PURSUANT TO 28 U.S.C. §§ 1343, 2201 and 2202 (Federal claim against Defendants Federal Bureau of Prisons and Warden J. Barnhart)
122. Plaintiff incorporates paragraphs 1 through 121 and all paragraphs this Court deems relevant to support this Count.
123. Based on the incorporated paragraphs to support Count I, Defendants’ acts and omissions in failing to provide adequate medical care—specifically the screening, testing, and isolation of prisoners testing positive for COVID-19 virus, as well as the failure to exclude staff members testing positive for COVID-19 from contact with BOP prisoners, including prisoners oat USP Florence—constitute deliberate indifference to the serious medical needs of Nellson, and all members of the Class, thereby establishing a violation of the Eighth Amendment of the United States Constitution. There simply is no doubt that based on the facts incorporated to support this Count, that these defendants know of and appreciate the serious risk of harm to the prison population, and simply have not taken reasonable steps to abate that harm.
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124. Defendants violated, and continues to violate, Nellson’s and the entire class’s Eighth Amendment rights by the deliberate enactment and enforcement of a policy not consistent with medical standards, which in effect, denied Nellson, and the entire class, from screening for COVID-19 and testing of both staff and prisoners demonstrating symptoms of the COVID-19 virus. Prisoners testing positive for COVID-19 should be isolated. BOP staff, including staff members of USP Florence, testing positive for COVID-19 should be excluded from contact with BOP prisoners, including prisoners at USP Florence. To a reasonable degree of medical certainty, the Defendants’ acts and omissions, including its enforcement of the BOP’s and USP Florence COVID-19 guidelines, if any, fell so substantially outside the standard of care and opposite reasonable medical judgment that they constituted a deliberate act of refusing Nellson and the entire class access to any medical care to prevent the spread of COVID-19—a deadly disease that can rapidly spread and advance to a deadly stage.
125. To the extent that tests for the COVID-19 virus was not provided because of financial considerations, such concerns are in violation of the U.S. Constitution, as they deny necessary and adequate medical care to Nellson and other similarly situated prisoners in violation of the Eighth Amendment to the United States Constitution.
126.
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To the extent that prisoners showing symptoms of the COVID-19 virus and/or testing positive for COVID-19 were not isolated because of financial considerations, such concerns are in violation of the U.S. Constitution, as they deny necessary and adequate medical care to Nellson and other similarly situated BOP prisoners in violation of the Eighth Amendment to the United States Constitution.
127. To the extent that Defendants’ staff showing symptoms of the COVID-19 virus and/or testing positive for COVID-19 were not kept from BOP prisoners because of financial considerations, such concerns are in violation of the U.S. Constitution, as they deny necessary and adequate medical care to Nellson and other similarly situated BOP prisoners in violation of the Eighth Amendment to the United States Constitution.
128. Consequently, Plaintiff is entitled to declaratory relief declaring the Defendants’ actions in failing to screen, test BOP prisoners, including prisoners at USP Florence, showing symptoms of COVID-19, and isolate BOP prisoners, including prisoners at USP Florence, who tested positive for COVID-19 virus is an unconstitutional deprivation of Plaintiff’s rights to be free of cruel and unusual punishment and injunctive relief enjoining the Defendants from continuing its failure to isolate and test prisoners showing such symptoms.
129.
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Similarly, Plaintiff is entitled to declaratory relief declaring the Defendants’ actions in failing to screen, test BOP staff, including staff at USP Florence, showing symptoms of COVID-19, and exclude BOP staff who tested positive for the COVID-19 virus from contact with BOP prisoners, is an unconstitutional deprivation of Plaintiff’s rights to be free of cruel and unusual punishment and injunctive relief enjoining Defendants from continuing its failure to isolate and test prisoners showing such symptoms.
ATTORNEY FEES Based on the foregoing, Plaintiff is entitled to reasonable attorney’s fees under all applicable laws, including the Equal Access to Justice Act, 28 U.S.C. § 2412.
PRAYER FOR RELIEF WHEREFORE, Edward Nellson prays for a trial by jury of twelve and judgment against Defendants as follows: (a) That process issue and service be had on each Defendant; (b) That Plaintiff recover all costs of this litigation; (c) That a jury trial be had on all issues so triable; (d) That this Court certify a Class for the purposes of the permanent injunctive relief
sought based on the proposed Class definition in this Complaint, subject to any modifications this Court deems proper for the adjudication of the rights alleged to be violated;
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(e) That this Court issue an injunction and declaratory relief, requiring the BOP to immediately abandon its policy of inaction and begin consistently screening prisoners and staff in USP Florence for symptoms of COVID-19, by at the very minimum testing prisoners and staff for fever daily; and
(f) That this Court issue an injunction and declaratory relief, requiring the BOP to immediately abandon its policy of inaction and begin testing all prisoners in USP-Florence for COVID-19; and
(g) That this Court issue an injunction and declaratory relief, requiring testing of prisoners and staff in USP-Florence demonstrating symptoms of the COVID-19 virus, to wit, fevers, cough, and shortness of breath; and
(h) That this Court issue an injunction and declaratory relief, requiring isolation of BOP prisoners in USP Florence as soon as they exhibit symptoms of COVID 19, that they be tested for COVID 19, and that they only be returned once cleared or recovered;
(i) That this Court issue an injunction and declaratory relief declaring that all BOP staff in USP Florence testing positive for COVID-19 be excluded from contact with BOP prisoners;
(j) That this Court issue an injunction ordering the BOP to exercise its power and authority to immediately begin identifying prisoners at USP Florence who are
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eligible for compassionate release and begin the compassionate release review process for such prisoners (k) That this Court issue an injunction ordering the BOP to exercise its power and authority to immediately begin identifying prisoners who are eligible for transfer to another BOP facility where social distancing is possible; and (l) That this Court order BOP to require gloves for any individual serving foods at USP Florence; and (m) That this Court award attorney’s fees under all applicable laws, including the Equal Access to Justice Act, 28 U.S.C. § 2412; and (n) That Plaintiff receive such other and further relief as the Court deems just and proper. Respectfully submitted this 16th day of July 2020,

NDH LLC 4601 DTC Blvd., Suite 300 Denver, CO 80237 720-445-5655 mvcarminati@ndh-law.com
NDH LLC 44 Broad Street, NW, Suite 200 Atlanta, Georgia 30303

/s/ MARIA-VITTORIA G. CARMINATI Maria-Vittoria G. Carminati (Co #50579)
/s/ MARIO WILLIAMS Mario B. Williams (Ga # 235254)

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404-254-0442 / 404-935-9391 FAX mwilliams@ndh-law.com
NDH LLC 4601 DTC Blvd., Suite 300 Denver, CO 80237 720-445-5655 aparrott@ndh-law.com

/s/ ALEXANDRA PARROTT Alexandra L. Parrott (CO # 54188)

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 Case 1:20-cv-00756-PAB-NYW Document 78 Filed 10/22/20 USDC Colorado Page 1 of 8
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer
Civil Case No. 20-cv-00756-PAB-NYW EDWARD NELLSON, individually, and on behalf of others similarly situated,
Plaintiff, v. WARDEN J. BARNHART, in his official capacity, and UNITED STATES FEDERAL BUREAU OF PRISONS,
Defendants. _____________________________________________________________________
ORDER _____________________________________________________________________
This matter is before the Court on Defendants’ Motion for Summary Judgment [Docket No. 58]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. I. BACKGROUND1
Edward Nellson is an inmate at the United States Penitentiary in Florence, Colorado (“USP Florence”). Docket No. 58 at 3, ¶ 1. On March 31, 2020, Mr. Nellson filed a motion for temporary restraining order (“TRO”) and preliminary injunction, requesting that the Court order USP Florence to begin instituting screening, testing, and isolation of both inmates and staff due to the COVID-19 pandemic. Docket No. 10 at 1-2.
On April 16, 2020, the Court denied plaintiff’s motion for a TRO. See Docket No. 23. The Court concluded that plaintiff (1) had failed to exhaust administrative
1 The following facts are undisputed unless otherwise indicated.

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remedies, (2) had not shown the likelihood irreparable harm in the absence of a TRO, and (3) failed to show a likelihood of success on the merits. Id. at 6-14. On June 4, 2020, the Court denied plaintiff’s motion for preliminary injunction. See Docket No. 45. The Court concluded that plaintiff had failed (1) to show irreparable harm or (2) a likelihood of success on the merits. Id. at 12-18. On July 16, 2020, plaintiff filed an amended complaint alleging that USP Florence is failing to take various steps, in addition to the lack of screening, isolation, and testing alleged his initial complaint, to prevent the spread and infection of COVID-19 at USP Florence. See Docket No. 56.
Prior to filing suit, plaintiff did not file any administrative grievances related to the COVID-19 pandemic. Docket No. 58 at 4, ¶ 3. On April 20, 2020, four days after the Court’s order on plaintiff’s motion for TRO, plaintiff filed Administrative Remedy No. 1014848. Id., ¶ 5. That remedy complained that USP Florence had failed to take appropriate steps to protect inmates at USP Florence. Id., ¶ 6. The Warden at USP Florence denied the remedy on April 21, 2020. Id., ¶ 7. Plaintiff appealed his denial on April 27, 2020. Id. at 6, ¶ 13. On May 6, 2020, the Regional Office determined that it needed more time to respond to plaintiff’s appeal and that it would respond by June 26, 2020. Id., ¶ 14. The Regional Office did not respond to plaintiff’s appeal by June 26, 2020. Id., ¶ 15. Plaintiff has not filed an appeal to the Central Office. Id., ¶ 18.2
On July 27, 2020, defendants filed a motion to dismiss, arguing that plaintiff had failed to exhaust administrative remedies before filing suit. See Docket No. 58.
2 The reason for plaintiff’s failure to appeal to the Central Office is in dispute, although it is not in dispute that plaintiff has yet to file an appeal. See Docket No. 63 at 3, ¶ 18.
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Plaintiff filed a response on August 17, 2020. See Docket No. 63. II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for
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trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. III. ANALYSIS
Defendants argue that it is undisputed that plaintiff did not exhaust administrative remedies prior to filing suit and, as a result, they are entitled to summary judgment. Docket No. 58 at 13-14. Plaintiff responds that he did not attempt to exhaust administrative remedies before filing suit because he thought that administrative remedies were unavailable and that he has since been thwarted from completing the administrative grievance process. Docket No. 63 at 10-13. As addressed in the order denying the TRO, plaintiff is required to exhaust his administrative remedies before seeking judicial relief. See Docket No. 23 at 6-10. The Prison Litigation Reform Act (“PLRA”) states that “[n]o 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.” 42 U.S.C. § 1997e(a). An inmate’s obligation to exhaust administrative remedies is mandatory. See Ross v. Blake, 136 S. Ct. 1850, 1856 (2016); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA.”). The only
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exception to exhaustion is that an inmate is only required to exhaust “available” remedies. See Ross, 136 S. Ct. at 1856. Critically, administrative remedies must be exhausted before filing suit; an inmate is not permitted to exhaust remedies during the pendency of litigation. See Ruppert v. Aragon, 448 F. App’x 862, 863 (10th Cir. 2012) (unpublished) (“Since the PLRA makes exhaustion a precondition to filing a suit, an action brought before administrative remedies are exhausted must be dismissed without regard to concern for judicial efficiency.” (citations omitted)); see also Woodford v. Ngo, 548 U.S. 81, 94-96 (2006) (holding that the PLRA requires “proper” exhaustion such that the entire administrative process is completed before filing suit).
The Court agrees with defendants that plaintiff has failed to exhaust administrative remedies and, as a result, defendants are entitled to summary judgment. The undisputed evidence shows that plaintiff did not file any administrative grievances related to the COVID-19 pandemic before filing suit. Docket No. 58 at 4, ¶ 3. His first grievance was filed four days after the Court’s April 16, 2020 order on plaintiff’s motion for TRO. Id., ¶ 5.
Plaintiff does not dispute that he failed to exhaust administrative remedies before filing suit. Rather, he argues that he believed that “the administrative remedy system was unavailable to address his concerns about the growing COVID-19 pandemic.” Docket No. 63 at 8. However, as plaintiff notes, id., the Court already rejected this argument in its April 16, 2020 order. See Docket No. 23 at 8-10. Specifically, the Court concluded that “total and immediate relief is not the standard for exhaustion, the possibility of some relief is.” Id. at 10 (quotations and citations
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omitted). Furthermore, the Court noted that the administrative grievance process at issue contains a means for addressing imminent concerns. Id. at 9. Nonetheless, relying on Justice Sotomayor’s statement in denying an application to vacate a stay in a PLRA exhaustion case, plaintiff argues that the administrative remedy process was practically unavailable to him when he initiated suit because of the length of the grievance procedure. Docket No. 63 at 9-10. Moreover, he argues that his experience since beginning the exhaustion process demonstrates that administrative remedies are unavailable. Id. at 10. In particular, he takes issue with the COVID-19 safety measures instituted by USP Florence – the basis for his suit – and the length it has taken to exhaust administrative remedies. Id.
The Court finds this argument unpersuasive. First, plaintiff takes Justice Sotomayor’s comments out of context. Justice Sotomayor chose to write separately due to the “disturbing allegations.” Valentine v. Collier, 140 S. Ct. 1598, 1598 (2020) (mem.). Specifically, the facility in Valentine housed a significant number of at-risk inmates and was a “dormitory-style prison, with each inmate separated by only a short, cubicle-style half-wall.” Id. at 1599. That is not the case here, as explained in the Court’s order denying plaintiff’s motion for preliminary injunction. Moreover, USP Florence has taken several steps to reduce the risk of transmission, including all of the precautions plaintiff requested in his original complaint. Docket No. 45 at 12.
Second, Justice Sotomayor did not create a blanket exemption to exhaustion during the COVID-19 pandemic. Rather, she noted that, “if a plaintiff has established that the prison grievance procedures at issue are utterly incapable of responding to a
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rapidly spreading pandemic like COVID-19, the procedures may be ‘unavailable.’” Valentine, 140 S. Ct. at 1600 (emphasis added). But Justice Sotomayor further stated that this is a “narrow category” and that she could not discern whether the facility at issue fit into this narrow exception because the “applicants did not attempt to avail themselves of the grievance process before filing suit.” Id. at 1601 (emphasis added). Only when the grievance process “cannot or does not answer” the imminent risk of harm, “could . . . the courthouse doors” be opened. Id.
Like the applicants in Valentine, plaintiff did not avail himself to the administrative process before filing suit. The PLRA requires dismissal when an inmate fails to exhaust remedies before filing suit “without regard to concern for judicial efficiency.”3 Ruppert, 448 F. App’x at 863. Plaintiff has failed to demonstrate that this case fits into the narrow category that Justice Sotomayor noted or that there is a genuine issue of material fact that prevents dismissal. IV. CONCLUSION
For the foregoing reasons it is ORDERED Defendants’ Motion for Summary Judgment [Docket No. 58] is GRANTED. It is further ORDERED Defendants’ Motion to Dismiss [Docket No. 59] is DENIED as moot. It is further
3 Additionally, any alleged thwarting of plaintiff’s attempts to complete the administrative process at the Central Office level do not bear on whether plaintiff exhausted remedies prior to filing suit, which is the appropriate period to judge exhaustion.
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ORDERED that Defendants’ Motion to Stay Discovery [Docket No. 61] is DENIED as moot. It is further
ORDERED that plaintiff’s claims are DISMISSED without prejudice. It is further ORDERED that this case is closed.

DATED October 22, 2020.

BY THE COURT:

PHILIP A. BRIMMER Chief United States District Judge

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