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Law360 (May 4, 2020, 9:25 PM EDT ) A New York judge said he would allow attorneys for inmates in a Manhattan federal prison to inspect conditions there, though he rejected their request for an emergency order requiring the facility to take stronger measures to safeguard inmate health amid the pandemic.
U.S. District Judge Edgardo Ramos grappled with differing accounts of life inside the Metropolitan Correctional Center during a phone hearing in a proposed class action suit brought by five inmates at the prison. The judge said he would order an inspection to help determine the facts.
On the one hand, attorneys for inmates suing the prison pointed to accounts from inmates who say the sick among them are being overlooked for days; on the other, the government claims that the prison, which houses 691 inmates, currently has no one who show symptoms of COVID-19.
During the hearing, Assistant U.S. Attorney J.D. Barnea said the prison is preventing the spread of COVID-19 by splitting up inmates into groups of either 10 or 26 and only allowing them to interact with those in their cohort.
"It seems like this approach is so far working," Barnea said on the call.
Judge Ramos wanted more information, saying that the facility had probably "been more lucky than good" when it comes to having few confirmed cases.
The judge cited one of his cases that day where the defendant pled guilty and informed the judge that, based on their symptoms, the defendant believed he and his cell mate had COVID-19.
"It certainly does seem there is likely a higher incidence of COVID-19 than the MCC is aware of," he said.
Leaving the details to be determined later in the week, the judge said he is inclined to allow the inmates' attorneys and their medical expert inspect the facility. The expert, Dr. Homer Venters, recently toured the Metropolitan Detention Center in Brooklyn as part of a similar case brought by inmates there. Venters told the judge in that case that the MDC had failed to adequately protect its inmates.
Arlo Devlin-Brown of Covington & Burling LLP, who represents the MCC inmates, suggested that if the judge ordered the MCC to do more testing, the facility could get its hands on one of the rapid testing machines the Bureau of Prisons is buying.
Judge Ramos, however, denied the inmates' request for a temporary restraining order requiring the prison to release eligible inmates sooner, test more inmates and hand out more soap, in light of steps the MCC says it is now taking. The case will continue, however, as the inmates seek further information from the BOP.
The suit already has already prompted the MCC to quicken its effort to handle requests for release.
Assistant U.S. Attorney Jessica Hu said that the MCC is focusing on the inmates the BOP has identified as particularly vulnerable. Of the approximately 200 inmates on that list, 40 have already been released either on bail, compassionate release or to home confinement, and 74 are pretrial detainees, whose fates are in the hands of the judges overseeing their cases.
For 39 of the remaining inmates on the list, Hu said the MCC will decide whether or not to recommend they be released to home confinement by May 13. She cautioned, however, that BOP staff would still have to complete the process of assessing where the inmates would live after release.
For 45 of the inmates, the BOP does not have information on whether or not they have been sentenced. Hu said the U.S. attorney's office would pitch in to help ascertain their status and report back with a plan by Friday.
Hu also said the MCC will respond by May 12 to the around 70 compassionate release requests it has already received, both from inmates who the prison deems at-risk and from others.
The Manhattan inmates are represented by Arlo Devlin-Brown, Alan Vinegrad, Andrew A. Ruffino, Timothy C. Sprague and Ishita Kala of Covington & Burling LLP.
The warden is represented by Jean-David Barnea, Allison Rovner and Jessica Hu of the U.S. Attorney's Office for the Southern District of New York.
The case is Fernandez-Rodriguez et al. v. Licon-Vitale, case number 1:20-cv-03315, in the U.S. District Court for the Southern District of New York.
--Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
