Philly Prisoners Slam 'Head-In-The-Sand' Virus Response

By Matt Fair
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Law360 (May 21, 2020, 4:02 PM EDT) -- Citing a woeful lack of testing for COVID-19 cases at the facility, three prisoners petitioning for a broad release of inmates from Philadelphia's federal detention center on Wednesday blasted the "head-in-the-sand approach" they say prison officials have taken in response to the pandemic.

The inmates, who launched a class action last month aimed at forcing the release of prisoners at high risk from the novel coronavirus, said that the facility hadn't administered a single coronavirus test on its own until last week.

And despite a declaration from the facility's warden last month that there had been no COVID-19 cases at the facility, they added that they'd uncovered that one prison employee and one new inmate had both previously tested positive for the virus.

"The FDC remains extraordinarily exposed to joining the sad list of prisons and jails that have experienced widespread, lethal outbreaks of COVID-19," the prisoners said.

Linda Dale Hoffa, an attorney with Dilworth Paxson LLP representing the petitioners, chastised the facility in a statement for its response to the pandemic.

"The Federal Detention Center claimed to have no COVID because it has a head-in-the-sand approach – by not testing staff or detainees or even asking those coming into the FDC if they had been tested for COVID," she said.

Wednesday's filing comes after a judge agreed to allow the prisoners to take limited discovery about conditions at the facility in order to counter a motion from the government asking that the case be thrown out.

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.

The government sought dismissal of the case, pointing to what it said were the "exhaustive measures" it had implemented to help safeguard prisoners and staff from the coronavirus. But the prisoners argued in their supplemental brief on Wednesday that officials were painting a far rosier picture than actually exists.

In particular, they pointed to their discovery that, despite a declaration from the facility's warden on April 20 that there had been no COVID-19 cases at FDC Philadelphia, both an inmate and a staff member had previously tested positive for the virus.

Since then, they said, there had been at least two additional positive tests among staff.

"These incidents highlight serious deficiencies in the FDC's screening and testing protocols, and fatally undermine respondent's arguments that the court should dismiss the case," the prisoners argued.

And while the government has also said that prisoners should be required to pursue claims for release individually, rather than as part of a class action, the petitioners said in their filing on Wednesday that lockdown conditions at FDC Philadelphia had made it all but impossible for inmates to talk to their lawyers or to access the facility's law library.

"The FDC's shutdown of in-person visitation, combined with its denial of access to any meaningful alternative method of confidential communications, deprives detainees of all options for privileged communication with attorneys. Detainees cannot even effectively litigate such claims pro se, because the FDC has severely restricted their access to legal research and discovery materials," they said.

A spokesman for the U.S. Attorney's Office in Philadelphia declined to comment on Thursday.

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.

--Editing by Jack Karp.

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

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