By Pete Brush

Law360, New York (June 2, 2020, 4:02 PM EDT) -- A federal judge on Tuesday urged counsel for inmates suing the Metropolitan Correctional Center over COVID-19 concerns to work on a settlement with the Manhattan prison, saying alleged missteps are within its power to fix and indicating a preference not to issue injunctions.

U.S. District Judge Edgardo Ramos, overseeing a potential class action brought against the 677-inmate facility by prisoners including petitioner Cesar Fernandez-Rodriguez, said during a 2½-hour hearing that a deal was the best way forward and warned that any effort he makes to manage the prison from outside its walls could leave both sides disappointed.

Fernandez-Rodriguez and other inmates claim the MCC's warden, respondent Marti Licon-Vitale, dropped the ball on testing and prevention in March and April as the coronavirus spread in New York. They are asking for orders requiring ramped-up coronavirus testing and treatment, better sanitation, and potential compassionate release.

But attorneys from the Manhattan U.S. attorney's office, representing the warden, paint a starkly different version of events. They say that the MCC was reeling from an early March incident where a gun was found inside and that the warden was focused on security sweeps as COVID-19 began to hit the city in earnest.

Since then, they say, the prison has done its best in the face of changing guidance from the U.S. Bureau of Prisons. No inmate at MCC has died of COVID-19, the MCC's counsel Jean-David Barnea told Judge Ramos. Only 34 have either tested positive or displayed symptoms deemed to be caused by the virus, he said.

"Things are pretty much under control at the MCC," Barnea said.

The government's comments come in stark contrast to comments by counsel for inmates, who have hammered away at the facility for weeks claiming that its response to the virus has been "inadequate."

Their lawyer, Arlo Devlin-Brown, told Judge Ramos that the prison may have "policies galore," but "deplorable" conditions persist.

Judge Ramos, noting that the government filed a rebuttal report that downplayed concerns expressed by a doctor representing the inmates' concerns, said Tuesday that the sides seem to be in "two different worlds."

"That continues," he said.

That gulf seemed to play into his reluctance to issue injunctions — though he indicated he wouldn't wait overly long to make rulings if the sides can't find more common ground.

Judge Ramos observed that, according to court filings, much of what the inmates are asking for — including testing and retesting, contact tracing for infected inmates, quarantining, masking, sanitation upgrades, and reporting on the virus' extent in MCC — already are within the prison's power.

The judge, who recently declined to grant compassionate release for an elderly inmate serving a 10-year prison term in Illinois, has not seemed keen to free inmates outright. On Tuesday, referring to MCC inmates, he called such a step an "extraordinary remedy" .he is not likely to take.

After the hearing, the government and counsel for the inmates declined comment.

The inmates are represented by Arlo Devlin-Brown, Andrew Ruffino and Alan Vinegrad of Covington & Burling LLP.

The government is represented by Jean-David Barnea, Jessica Hu and Allison Rovner 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 Adam LoBelia.

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