Our clients Craig Wilson, Kendal Nelson, Eric Bellamy, and Maximino Nieves were incarcerated at FCI Elkton, a low-security federal prison in northeast Ohio. Elkton is the site of one of the worst COVID-19 outbreaks in the federal prison system, with three dead and hundreds believed to be infected at the time of the lawsuit. The approximately 2,300 people housed in Elkton are kept in 150-person open-plan units, partially divided into 8x10 cubicles each housing three men. With the crowded conditions, and free movement within the 150-person units, social distancing was impossible. The prison issued 2 disposable paper masks to each prisoner, and a single 4-oz bottle of 3-in-1 soap for each week, but undertook no measures to enable social distancing, a procedure that the CDC describes as the “cornerstone” of any effort to respond to a respiratory infectious disease. Under the Coronavirus Aid Relief and Economic Security Act (CARES Act,) the Federal Bureau of Prisons (BOP) has the authority to move any prisoner into home confinement, and also has the authority to use temporary furloughs or recommend prisoners for compassionate release. Any of these measures would enable social distancing, as would transferring the prisoners out of Elkton into another prison. On April 3, Attorney General William Barr singled out Elkton as one of three COVID-19 hotspots in the federal prison system, and issued a memorandum directing its warden to “maximize” the use of home confinement, “with dispatch.” But weeks after the Attorney General’s memorandum, Elkton officials were making little or no effort to move prisoners away from the outbreak.
Prison official’s failure to enable social distancing, including by refusing to move prisoners to home confinement, constitutes “deliberate indifference” in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. Usually violations of the Eighth Amendment are brought as challenges to the prisoner’s “conditions of confinement”. The Prison Litigation Reform Act (PLRA) bars “conditions of confinement” lawsuits, however, unless the prisoner exhausts an onerous series of administrative grievance procedures. We brought this lawsuit seeking a writ of habeas corpus, a theory that would avoid having to exhaust PLRA requirements.
On April 14, 2020, we filed a class action Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of Ohio seeking immediate declaratory and injunctive relief. In particular, we argued that prisoners at higher risk from COVID-19 (the “medically vulnerable” group) needed most urgently to be removed from Elkton. Judge Gwin granted an expedited case schedule on April 14 and Respondents, Warden Williams and Bureau of Prisons Director Carvajal, filed their answer on April 17, and a hearing and oral argument was conducted before Judge Gwin that same day. Disability Rights Ohio and a group of public health and human rights experts filed amicus briefs urging the court to grant the writ. We replied to Respondents’ answer on April 18.
On April 22, Judge Gwin entered a preliminary injunction (the “PI Order”), ordering the government to identify all medically vulnerable prisoners (employing criteria paralleling the CDC guidelines for those at highest risk) with 24 hours and then, within 2 weeks, to evaluate the listed prisoners for possible removal from Elkton by use of home confinement, furlough, compassionate release, or any other measure. Any medically vulnerable prisoner not eligible for any such measure would need to be transferred to a BOP facility that allowed for social distancing, unlike Elkton.
On April 23, the government stated that it had identified the medically vulnerable group but refused to disclose the list to us, or to the public. We requested an emergency status conference, which the court scheduled for April 27. At that conference, the court instructed the government to file the list publicly. On April 27, the government appealed the PI Order to the Sixth Circuit and on April 28 moved for a stay pending appeal in both the district and circuit courts. It still refused to file the list as instructed. We filed an emergency motion in the district court to compel production of the list on April 29 and the motion was granted the same day. On April 29 we also moved for class certification.
On April 30, the Sixth Circuit denied the government’s motion to stay the portion of the order that required the government to publish a list of all prisoners who met the subclass requirements identified by Judge Gwin. The government finally filed the list that same day, identifying 837 people. The government opposed class certification on May 1. On May 4, the Sixth Circuit denied the motion to stay for the remaining elements of the PI order. After requesting additional briefing as to the binding effect of the Sixth Circuit’s ruling on the stay motion still pending in the district court, Judge Gwin denied the stay as well. Also on May 4, we filed a motion in the district court for expedited discovery focusing on the government’s efforts to comply with the district court’s PI order.
On May 6, the two-week period for the government’s compliance with the PI Order expired. At Judge Gwin’s instruction, the government filed a status report. It stated that of the 837 medically vulnerable prisoners previously identified by the government, the government had only approved five individuals for home confinement, and only recommended one for compassionate release. In the meantime, an eighth inmate died of COVID-19 and prison officials had not articulated any plan for moving any additional people out of Elkton. We filed an emergency motion to enforce the PI Order, on the ground that the BOP had failed to comply. The government opposed that motion on May 8.
To ensure all medically vulnerable prisoners were properly included in the class and properly evaluated for release or transfer by BOP, we drafted a class notice to be distributed to all inmates. On May 10 we filed a motion to distribute those notices. On May 11, the government opposed that motion, and we replied in support of the motion. After a conference regarding the form and language of the notice, as well as the process for distributing and collecting the notices, Judge Gwin issued an order covering those matters on May 13. We delivered the class notice forms to the prison on May 14; they were distributed to and filled out by all of the prisoners; and we collected the completed forms on May 17.
Meanwhile, on May 14, we filed a reply in support of our motion to enforce the PI Order. On May 19, Judge Gwin granted the motion to enforce, noting that the government had been “thumbing their nose at” their authority to grant home confinement, and instructing them to conduct the review again. This time, the court imposed additional requirements on the government regarding testing, reporting on its progress testing, and evaluating and releasing inmates.
On May 20, the government applied to the Supreme Court of the United States for a stay of the PI Order. We were given a 36-hour window to prepare and submit our opposition, which we did. The government replied on May 22. On May 26 the Supreme Court denied the application.
On May 29, the government filed new motions to stay in both the district court and the Sixth Circuit, this time challenging the May 19 enforcement order. We filed briefs opposing the stay motions in both courts on May 30. The Sixth Circuit denied the new stay motion on June 1, and later that day, the government again applied to the Supreme Court for a stay pending appeal. On June 4, Justice Sotomayor entered an administrative (temporary) stay pending the Sixth Circuit’s decision on the merits of the original appeal.
Meanwhile, briefing on the original appeal of the PI Order continued in the Sixth Circuit. On May 15, the government filed its merits brief. We responded on May 29, and the government replied on June 1.
Oral arguments were held before a Sixth Circuit panel consisting of Judges Cole, Gibbons, and Cook on June 5. On June 9, the panel issued an opinion vacating Judge Gwin’s April 22 preliminary injunction. Although the preliminary injunction is no longer in effect, this does not dispose of the case. It now continues in the district court on the merits.
We proceeded with discovery, serving interrogatories and requests for production on June 12, and requesting a response within 14 days. Respondents replied that they would not be answering on that timeline. They later clarified that they would respond to discovery requests only after there was a decision on their not-yet-filed motion to dismiss. On July 2 we moved to compel expedited discovery. Respondents opposed, but the Court granted our motion on August 6, and ordered Respondents to respond to discovery by August 20. On August 20, Respondents produced a number of requested documents. We continue to review those documents and have sent Respondents a letter identifying deficiencies in their production.
On July 10, Judge Gwin ordered parties to to submit additional briefing on the effect of the Sixth Circuit’s ruling on class certification. We filed our brief on July 20 and Respondents filed theirs on July 27. On July 27, they also filed a motion to dismiss, arguing that the Sixth Circuit decision effectively resolved the case. We filed our opposition on August 26.
On August 20, we moved to file an amended petition, primarily to add two new class representatives, Christopher Whitfield and George Rafidi, in place of our client Maximino Nieves, who has been transferred to another facility pending completion of his sentence. Respondents filed their opposition to that motion on September 3. On September 9 they filed a Reply in Support of their Motion to Dismiss and on September 17 we did the same in support of our Motion to Amend the petition.
On September 18, we filed a Joint Motion for Stay of All Proceedings through October 9 while we discussed settlement. The Court continued to approve periodic joint stay motions as settlement discussions progressed and the BOP filed daily status reports on its COVID testing.
After multiple extensions of the stay we reached a settlement with the Bureau of Prisons and warden, and on May 10, 2021 dismissed the case. The settlement, on behalf of the individual plaintiffs only (i.e., any putative class member remains free to bring any future claim), requires the defendants to continue to provide specific, regularly updated information about COVID-19 infections at the Elkton prison on the FBP website, until December 1, 2021 or the date the CDC declares the pandemic to have ended, whichever is sooner.