Fernandez-Rodriguez v. Licon-Vitale

• Decision Date: 02 July 2020
• Docket Number: 20 Civ. 3315 (ER)
• Citation: 470 F.Supp.3d 323
• Parties: Cesar FERNANDEZ-RODRIGUEZ, Rober Galvez-Chimbo, Sharon Hatcher, Jonathan Medina, and James Woodson, individually and on behalf of all others similarly situated, Petitioners, v. Marti LICON-VITALE, in her official capacity as Warden of the Metropolitan Correctional Center, Respondent.
• Court: U.S. District Court — Southern District of New York

470 F.Supp.3d 323

Cesar FERNANDEZ-RODRIGUEZ, Rober Galvez-Chimbo, Sharon Hatcher, Jonathan Medina, and James Woodson, individually and on behalf of all others similarly situated, Petitioners,

v.Marti LICON-VITALE, in her official capacity as Warden of the Metropolitan Correctional Center, Respondent.

20 Civ. 3315 (ER)

United States District Court, S.D. New York.

Signed July 2, 2020

Alan Mark Vinegrad, Andrew Arthur Ruffino, Arlo Devlin-Brown, Covington & Burling LLP, New York, NY, for Petitioners.

Jean-David Barnea, Allison Rovner, Jessica Jean Hu, United States Attorney's Office, New York, NY, for Respondent.

OPINION & ORDER

Ramos, D.J.:

The World Health Organization declared the Novel Coronavirus Disease, COVID-19, a global pandemic on March 11, 2020. Two days later, on March 13, the United States declared the pandemic a national emergency. But even in the weeks and months prior to those declarations, WHO and other public health organizations were warning about the potential of the virus to infect and kill untold numbers of people around the globe. Sadly, some of the most grim predictions have come to pass as the virus has taken an unspeakable toll. The experience in the United States has been particularly dire. By all accounts, this country leads the world in both the number of infections and fatalities.

The virus started to spread particularly quickly through the City of New York in the early spring of this year. It brought life in the City to a standstill, sickening hundreds of thousands of residents. As thousands of people per day required hospitalization, the virus overwhelmed New York's healthcare system, despite drastic efforts to blunt its spread. The pandemic has ebbed in New York, but it continues to ravage the country. Indeed, as of the date of this Opinion there appears to be no end in sight, as each passing day brings a record number of new cases.

While our elected officials have debated how best to implement the recommendations of public health authorities to slow the spread of the virus, there at least exists a broad consensus as to what those appropriate measures are. Specifically, individuals should, if at all possible, maintain an appropriate "social distance" from each other and wear a face covering when that is not possible. Testing for the virus should be made widely available and is strongly recommended for individuals that exhibit symptoms of the disease. Individuals who test positive should be isolated, and efforts should be made to identify those who have recently been in close contact with infected individuals, so that they may quarantine for an appropriate period of time. Finally, all individuals should adopt a rigorous regime of personal hygiene, emphasizing frequent hand washing.

There is a common-sense recognition that jails and other correctional institutions present a particular dilemma for combating the virus because, by their nature, they make nearly impossible the imperative of social separation. It is for that reason that the Centers for Disease Control and Prevention ("CDC") issued specific guidance for correctional institutions, and the Attorney General of the United States instructed all wardens to use the tools at their disposal to lessen the number of inmates under their stewardship. It is also for this reason that the management of the Metropolitan Correctional Center in Manhattan (the "MCC") was included in a series of meetings convened by Chief Judge Colleen McMahon beginning in early March with other stakeholders in the criminal justice system to discuss how our work might safely be carried on.

The inmates housed at the MCC were not spared the outbreak. As will be discussed below, while the management of the MCC was well aware of the threat posed by the virus and of the guidance that was issued to address it, it failed to implement common-sense measures to stop the spread of the virus. In March and April, at least five percent of the MCC's inmates fell ill with COVID-19. Although no inmate died, many were debilitated by coughs that wracked their bodies, fatigue so extreme they could not rise from bed, and a host of other symptoms. Even now, after the peak of the outbreak at the MCC, a handful of inmates continue to test positive for the disease.

Four inmates¹ currently held in the MCC petition this court for writs of habeas corpus on behalf of themselves and other MCC inmates, arguing that the planning and reaction to the pandemic — or lack thereof — constituted deliberate indifference to the extreme risk the novel coronavirus posed. They argue that the conditions in which they were held shock the conscience of any civilized society and violate their rights to Due Process and to freedom from Cruel and Unusual Punishment guaranteed by the U.S. Constitution. They now move the Court to preliminarily enjoin the MCC's warden and to order her to take certain precautions to protect all inmates from a new outbreak.

The warden, for her part, urges the Court to allow her and her team to prepare for the next outbreak without judicial oversight, providing both an analysis of where her staff fell short during the first emergency and promises for how they will improve as the situation continues to develop. She also moves to dismiss the inmates’ claims insofar as they seek release from the MCC.

The inmates are likely to show that the MCC's response to the pandemic was ad-hoc and overlooked many gaps in its scheme to identify and isolate infected inmates — creating conditions that posed a substantial risk to the health of all inmates. As discussed in further detail below, however, the Court concludes that the inmates are not substantially likely to show that the MCC's failures were a result of deliberate indifference to their plight. Accordingly, the inmates’ motion for a preliminary injunction is DENIED. Additionally, because the Court determines that there are no statutory or equitable bars to considering release as a remedy for inmates in its final determination of this matter, the warden's motion to partially dismiss the inmates’ petition is also DENIED.

I. FACTUAL BACKGROUND²

A. COVID-19 and Initial BOP Guidance

Nearly 130,000 Americans have perished from COVID-19, and over 2.6 million have become ill as of July 1.³ The numbers in New York City are no less sobering: over 20,000 have died and nearly 220,000 have gotten sick.⁴ The disease causes fever, coughing, shortness of breath, nausea, loss of smell, and a host of other symptoms.⁵ At particular risk are older adults, as well as those with certain underlying conditions, including heart disease, lung disease, and diabetes.⁶ For the most ill, trouble breathing and extreme fatigue can require hospitalization for intensive care.⁷

The CDC identified correctional facilities as a setting of particular concern in guidance dated March 23, 2020.⁸ According to the CDC, the dense nature of a crowded prison increases the risk of person-to-person transmission of the disease, especially as new inmates enter the facility from any number of distant locales.

The federal Bureau of Prisons (the "BOP") has not been spared the impact of the pandemic. According to its own data, as of July 1, nearly 1,600 BOP inmates were currently ill with COVID-19, as confirmed by testing; 90 have died since the outbreak began. Over 160 staff have tested positive and are currently sick, as well; 1 staff member has died.⁹ Some BOP facilities are experiencing large-scale outbreaks, with the Bureau identifying nearly 600 COVID-19 positive inmates in Butner, North Carolina; over 270 at the Elkton facility in Lisbon, Ohio; over 110 in Seagoville, Texas; and nearly 100 in Fairton, New Jersey.¹⁰

The BOP began planning for the coronavirus pandemic in January 2020 as part of its "Phase One," using its Pandemic Influenza Plan as a guide.¹¹ The Bureau issued its first guidance to prison officials on January 31 and then on February 29, recommending that facilities screen staff and new inmates for exposure to persons either diagnosed with COVID-19 or who exhibited symptoms of the disease.¹² The guidance further recommended, inter alia , educating staff, fitting them for N95 respirator masks, and conducting an inventory of and procuring personal protective equipment ("PPE"). It also recommended that prison executive staff "determine where persons with COVID-19 risk factors would be quarantined in the facility, if needed."¹³ Finally, the February 29 guidance included a screening tool for inmates.¹⁴ It directed that screeners ask whether the inmate had been to an area where COVID-19 was prevalent and whether the inmate had been in contact with someone diagnosed with COVID-19. It listed fever, cough, and shortness of breath as symptoms to look for, and noted that "[f]ever may not be present in some patients." If an inmate was symptomatic, the tool directed screeners to immediately place a surgical mask on the inmate, to isolate the inmate, and to "minimize and keep a log of all persons interacting with (6ft.) or caring for, the inmate," and for staff to wear proper PPE around the inmate.

B. MCC and the Early Pandemic

At the time of the February 29 guidance, MCC leadership had not engaged in any planning for a potential outbreak.¹⁵ On February 27, a security failure unrelated to the pandemic hit the MCC: one of its correctional officers smuggled a loaded firearm into the facility, prompting a complete lockdown as staff searched for the gun.¹⁶ On March 4, over 150 inmates were moved to another BOP facility in Otisville, New York to facilitate the search.

During this time, prison officials attended several meetings with stakeholders in the federal justice system as it prepared for the looming COVID-19 pandemic. At the first such meeting, convened on March 4 by Chief Judge Colleen McMahon of this District with the U.S. Marshal's Service, the Federal Defenders, and others, MCC officials indicated that they had not yet begun planning for the pandemic due to the ongoing search for the smuggled...