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Law360 (April 27, 2020, 8:08 PM EDT) -- Officials at a federal prison in Massachusetts have given up on proper social distancing for inmates and are moving far too slowly in releasing qualifying prisoners to home confinement to stop the coronavirus from spreading, lawyers for the inmates told a judge Monday.
Lawyers from the ACLU of Massachusetts and Fick & Marx LLP asked U.S. District Judge George A. O'Toole to free enough inmates from the Federal Medical Center, Devens through compassionate release or home confinement so the facility can observe social distancing.
Daniel Marx told Judge O'Toole during a hearing that the prison is akin to "the most dangerous and vulnerable nursing home institutions" and that its approach has been to carve up the facility into "several smaller, dangerous nursing home facilities" by locking down units and floors within units to stop inmates from intermingling.
"Within that unit — which is certainly not a family unit and is not a unit that any public health expert would recommend us to live or congregate in — there is no way to contain the spread of COVID-19," Marx said. He added that staff and other individuals would still be moving through these "locked-down" units.
The federal Bureau of Prisons, which oversees FMC Devens, has failed in its six-phase approach to contain the virus' spread through the federal system, Marx said. It is also failing to heed Attorney General William Barr's instruction to release qualifying inmates to home confinement and compassionate release, he said.
Instead of encouraging prisoners to apply for release and report symptoms of the virus, Marx said the prison is sending anyone who seeks release or appears symptomatic into isolated confinement — a type of "psychological torture" known as "the shoe."
"That serves no public health function, putting sick and symptomatic individuals into the shoe, where air circulates throughout the unit and staff circulate through the shoe and into other housing units," Marx said. "They are actually doing things and implementing policies that are counter-productive."
The ACLU and Fick & Marx sued for the release of the prisoners on April 15, calling the Devens facility a "powder keg of potential infection" due to the ill population and lack of social distancing. In addition to requested social distancing policies and inmate releases, they are asking for a special master to be appointed to oversee compliance with any court orders.
A federal class action seeking the release of U.S. Immigration and Customs Enforcement detainees in county prisons in Massachusetts led to the release of more than 40 inmates, and an emergency petition to the Supreme Judicial Court of Massachusetts resulted in a plan to let some pretrial inmates free due to the risk of contracting the virus.
The Devens prison reported a single case of COVID-19 on April 22 in a prisoner who had recently returned to the facility after having surgery. The inmate was quarantined and then had to return to the hospital due to post-surgery complications, according to Eve A. Piemonte of the U.S. attorney's office, who is representing Devens and the Bureau of Prisons.
"That one case of COVID-19 that ended up being present at FMC Devens is proof the system put in place is actually working," she said Monday.
Piemonte said the facility is distributing personal protective equipment, increasing cleaning, quarantining, and sheltering in place. For example, the dining hall has changed over to "grab and go" meals, she said.
Further, a temporary restraining order or any other relief would be proper only to maintain the status quo — not to cause the release of untold numbers of inmates, she argued.
Marx responded that the most important status quo to maintain is the health of the inmates.
"The fact that there is only one confirmed case does not mean it is working," Marx said of social distancing. "The Bureau of Prisons and FMC Devens is no different than any other environment that someone might be in, and social distancing is as critical there as anywhere else."
Citing outbreaks racing through federal prisons in Texas and Ohio, Marx said the Eighth Amendment prohibition against cruel and unusual punishment doesn't require waiting until it's too late to stop the virus.
"It counsels swift, appropriate, preventive action now," Marx said.
The prisoners are represented by Daniel N. Marx, William W. Fick, and Amy Barsky of Fick & Marx LLP and Matthew R. Segal and Jessie J. Rossman of the ACLU of Massachusetts.
FMC Devens and the Bureau of Prisons are represented by Eve A. Piemonte of the U.S. Attorney's Office for the District of Massachusetts.
The case is Grinis et al. v. Spaulding et al., case number 1:20-cv-10738, in the U.S. District Court for the District of Massachusetts.
--Editing by Janice Carter Brown.
For a reprint of this article, please contact reprints@law360.com.
