Feds Slam Suit Over 'Dangerously Slow' Prison Virus Steps

By Matt Fair
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Law360 (April 21, 2020, 3:56 PM EDT) -- The government and the warden at Philadelphia's federal detention center on Monday fired back at claims that the facility had been "dangerously slow" to adopt measures to prevent COVID-19 from spreading among detainees, in response to a class action seeking the release of inmates at high risk of contracting the virus.

Sean Marler, the facility's warden, told a federal judge that the U.S. Bureau of Prisons had taken "extraordinary action" in recent months to safeguard prisoners and staff alike from the novel coronavirus and that allegations otherwise raised by three inmates in a class action complaint last week were "uninformed."

"BOP has in fact taken exhaustive measures at the FDC to protect inmates and staff against COVID-19, with marked success to date," Marler and the government said, noting that there had yet to be a single positive diagnosis among the facility's 1,000-plus prisoners and nearly 230 workers.

"All of this is the product of a sustained, all-hands-on-deck campaign to prevent disease in the most challenging time prison officials have faced in our lifetime," they added.

Timothy Brown, Myles Hannigan and Anthony Hall filed suit April 15 complaining about the cramped conditions at FDC Philadelphia, where two inmates are held in each of the facility's 100-square-foot cells, and the overall lack of either personal protective equipment or testing for the novel coronavirus, saying the prison has been "dangerously slow" to adopt precautions.

The trio said that the conditions represented a violation of their constitutional rights and created a serious risk that they, and others like them, could end up infected.

The suit included a claim for injunctive relief and a petition for writs of habeas corpus seeking temporary release from the prison for themselves and other detainees at an elevated risk from COVID-19.

But the government and warden said in their response on Monday that the prisoners' concerns were overblown, both in terms of the conditions at FDC Philadelphia and with the federal prison system writ large.

"While there have been outbreaks at a number of BOP institutions, it is now apparent, additional weeks into the crisis, that BOP is succeeding at the moment in protecting most of its facilities," the response said.

The government pointed in particular to an outbreak at a federal prison in Oakdale, Louisiana, that the filing said had been "stabilized for weeks."

According to the BOP website, however, Federal Correctional Institution Oakdale I has reported seven inmate deaths from COVID-19 out of a total of 18 prisoners and 22 staff members who have tested positive for the virus.

The most recent death at the Oakdale facility came last Wednesday, the BOP said in a statement on its website.

The facility's total inmate population is just under 1,000, according to the BOP.

In Philadelphia, meanwhile, the filing from the government and warden on Monday said that no inmates appeared to be exhibiting symptoms and no inmate testing had been conducted.

In addition to challenging claims that the facility had not taken adequate measures to protect inmates from COVID-19, Marler and the government also argued that the inmates had no legal grounds for pursuing class claims seeking release based on prison conditions.

Instead, they said that the trial courts needed to consider claims from petitioners on an individual basis.

"The issue is laser-focused on the facts of the individual case, which is why the class action proposed here is so inconceivable under the law," the filing said. "The court must consider, among other factors, the nature and circumstances of the offense charged, the weight of the evidence against the person, and the history and characteristics of the person."

U.S. Attorney William McSwain said in a statement that there was "no legal basis" for the suit to move forward.

"There is no legal basis for the relief that petitioners seek, which is the mass release of federal inmates without the individual assessments that the law requires," he said. "The petitioners implore us to 'think outside the box,' which is just a euphemism here for ignoring the law. I can assure the public that that will never happen on my watch."

In a response filed late Tuesday afternoon, the detainees disputed the rosy picture that the government presented in its filing as they pointed to what they said was "very limited testing" for the virus in the federal prison system.

They noted that a total of 22 people in federal custody had died from COVID-19, with 702 inmates and 352 staff members testing positive.

And the virus, they argued, would not wait for individual prisoners to each file individual petitions for release.

"Given these extraordinary times, it is evident that extraordinary measures must be undertaken to ensure that lives are protected where the insidious COVID-19 virus can most easily spread like a wildfire — inside prison walls," they said. "Petitioners therefore have properly brought this class action petition for writ of habeas corpus to accomplish what must be done to save those lives."

The detainees are represented by Mary M. McKenzie and Benjamin D. Geffen of the Public Interest Law Center, Linda Dale Hoffa and Margaret Spitzer Persico of Dilworth Paxson LLP and Jim Davy.

The government is represented by William McSwain, Susan Becker, Robert Zauzmer, Landon Jones III and Rebecca Melley of the U.S. Attorney's Office for the Eastern District of Pennsylvania.

The case is Timothy Brown et al. v. Sean Marler, case number 2:20-cv-01914, in the U.S. District Court for the Eastern District of Pennsylvania.

--Additional reporting by Lauren Berg. Editing by Jack Karp.

Update: This story has been updated to include details from a response brief filed by the prisoners late Tuesday and a comment from the government.

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

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