Private Prison With COVID Cases Says NYC Told It Not To Test

By Frank G. Runyeon
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Law360 (April 3, 2020, 8:18 PM EDT) -- A private prison in Queens reported to a New York federal court on Friday that the New York City Department of Health and Mental Hygiene effectively told it to stop testing inmates for COVID-19 despite confirmed cases at the facility.

In its first court-mandated report on how the coronavirus was affecting the Queens Detention Facility, the private prison revealed that one inmate and three staff members had tested positive for COVID-19, but noted in a footnote that the local health department had advised it on Friday that prisoners presenting coronavirus symptoms should simply be “confined” and treated.

“On April 3, 2020, the New York City Department of Health (DOH) indicated that testing for a person experiencing flu-like symptoms at the Queens Private Detention Facility for COVID-19 was no longer necessary,” the prison stated in its filing. “The DOH stated that the person should be confined and his or her symptoms should be treated. He or she can be released from confinement when the person has no fever ...”

A spokesperson for the city health department declined to confirm Friday whether or how health officials had advised the prison, but provided a seven-page COVID-19 advisory that discouraged outpatient testing and stated, in part, "There is no reason to test asymptomatic persons or mild-to-moderately ill persons who are not hospitalized."

The prison's report came after the Eastern District’s Chief U.S. District Judge Roslynn R. Mauskopf on Thursday directed three federal prisons in New York City — Metropolitan Detention Center in Brooklyn, Metropolitan Correctional Center in Manhattan and Queens Detention Facility — to report COVID-19 infections, screening and testing protocols, staff and inmate test results, and mitigation efforts twice a week to the court, federal defenders and the public via the court’s website.

A Friday joint report by MDC and MCC did not mention when or if it would test inmates going forward. It indicated that as of Thursday, four inmates and seven staff had tested positive for COVID-19 at MCC, which has tested five inmates total, and as of Friday, two inmates and five staff had tested positive for the virus at MDC, which has tested seven inmates total.

The Bureau of Prisons did not immediately respond to a request for comment on its testing protocols.

The reports come amid a wave of litigation claiming federal prisons are violating vulnerable inmates’ constitutional rights by endangering them during the coronavirus pandemic.

“It would seem to be reckless to not to test and assume that individuals in a highly condensed facility can be protected from transmitting the disease,” said Alexander A. Reinert of Yeshiva University’s Benjamin N. Cardozo School of Law, who represents prisoners at the MDC, explaining that “in a correctional facility, the risk of transmission is significantly higher than in the general population and the ability to self-quarantine is limited.”

Reinert’s clients are among a burgeoning wave of federal inmates petitioning for release in the midst of the pandemic, claiming that the prison’s inability to provide a reasonably safe environment constitutes a violation of the Eighth Amendment protections against cruel and unusual punishment for those with existing medical conditions that make the virus a deadly threat.

Nationally, BOP reports that 91 inmates and 50 staff have tested positive for the virus as of Friday, representing an increase of more than 20% since Thursday.

--Editing by Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.

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