Mass. Federal Prison A COVID-19 'Powder Keg,' Suit Claims

By Brian Dowling
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Law360 (April 15, 2020, 6:04 PM EDT) -- Inmates seeking release from the federal prison in Devens, Massachusetts, warn the facility is a "powder keg of potential infection" that is violating constitutional prohibitions against cruel and unusual punishment through indifference to the risks of the novel coronavirus, according to a class action filed Wednesday.

The three prisoners behind the federal lawsuit want the court to force the U.S. Bureau of Prisons to release enough medically vulnerable inmates through compassionate release or home confinement for the facility to be able to comply with social distancing protocols.

"Devens — one of only seven federal prison medical centers — is a powder keg of potential infection and death from COVID-19, to an even greater degree than nursing homes, cruise ships, and other prisons, sites of some of the most intense clusters of mortality in Massachusetts, the United States, and elsewhere in the world," the inmates said in the lawsuit, brought by lawyers from Fick & Marx LLP and the ACLU of Massachusetts.

Devens, about 35 miles northwest of Boston, was the site of a military base that was ravaged by the Spanish flu outbreak in 1918, with 15,000 infections and more than 800 deaths. Now a prison, inmates there fear history could repeat itself if nothing is done.

"Without urgent intervention by this court, another outbreak of illness and death threatens to engulf the facility, with devastating consequences not only for petitioners and other vulnerable prisoners, but also for correctional staff, local health care workers, their families, and the broader community," the inmates said.

The prison, comprised of a medical center and a minimum security satellite camp, holds about 1,000 men, "including some of America's most elderly, sick, and medically vulnerable prisoners," according to the suit.

Defendants named in the lawsuit are Stephen Spaulding, the warden at Devens, and BOP Director Michael Carvajal.

No cases of COVID-19 have been reported at Devens, although the complaint quotes Spaulding as saying it's more a question of when than if the virus finds its way into the facility.

The inmates seeking release on behalf of the class of prisoners are a 49-year old with hypertension and chest pain who is scheduled for release in late May, a 51-year-old on immunosuppressant drugs due to a recent liver transplant, and a 59-year-old diabetic who requires dialysis and has had a triple bypass heart surgery. All three have made requests to Spaulding for compassionate release, with the warden denying two requests and not ruling yet on the third, according to the suit.

Seventeen prisoners at Devens have been tested for the virus, according to the complaint. But numerous inmates have developed the common symptoms of COVID-19, including a cough, shortness of breath or fever, the suit said. The complaint said the medical center is operating at 86% of its capacity and the camp is operating at 89% capacity.

In addition to their release, the inmates are asking the court to appoint a special master to investigate the conditions at Devens and monitor compliance with any court orders issued.

William Fick, a partner at Fick & Marx LLP, said in a statement, "It is appalling that Devens continues to operate near full capacity in the face of a pandemic."

He added, "There is no excuse for failing to immediately release elderly prisoners in their 70s and 80s, those with severe illness or disability, and those who have nearly completed their sentences. If the population of this prison doesn't decrease significantly, people are going to die."

The Bureau of Prisons declined to comment on the lawsuit.

The prisoners are represented by William W. Fick, Daniel N. Marx and Amy Barsky of Fick & Marx LLP and Matthew R. Segal and Jessie J. Rossman of the ACLU of Massachusetts.

Counsel information for the defendants was not immediately available.

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 Jay Jackson Jr.

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