A group of people currently being held in Brooklyn’s Metropolitan Detention Center say the federal Bureau of Prisons has failed to adequately protect the inmates from the COVID-19 pandemic, and have filed a class action lawsuit, asking a judge to immediately release all of the medically vulnerable inmates.
Over nearly 12 hours of videoconference testimony before a federal judge on Tuesday and Wednesday, attorneys for the petitioners argued that MDC does not know how many people in its custody are infected, or even symptomatic, because it’s not fully tracking their symptoms and testing is limited because there were only about 10 testing kits.
Only 15 of the jail’s roughly 1,700 inmates had been tested for the virus as of May 7th, six of whom were positive for COVID-19.
In contrast, hundreds of the roughly 4,000 detainees being held on Rikers Island, which is controlled by the city, have been tested for the coronavirus.
In testimony on Tuesday, Dr. Homer Venters, a former chief medical officer for the city jails who visited MDC on April 23rd, said he suspected the real number would be higher with ample testing, because 36 staffers had tested positive.
He added that he learned during this visit that MDC wasn’t keeping the paper records of sick call requests and including them in inmates’ medical records. He called this a “broken” system because, “the information I reviewed leads me to believe people are reporting COVID-19 symptoms in their sick call requests and not receiving care.”
Venters issued a disturbing report after meeting with MDC staffers and 17 inmates on that date, and described conditions that could promote the spread of the coronavirus. He said COVID-19 screenings for inmates often relied solely on temperature checks instead of asking about other symptoms and described a lack of adequate masks and cleaning supplies.
Venters’s report described two patients in the jail’s isolation unit – for those with or suspected of having COVID-19 – who said they had difficulty getting anyone to take their complaints seriously for days because they didn’t have elevated temperatures.
One of them, Justin Rodriguez, described being in a shared housing unit in March when he developed shortness of breath and lost his sense of smell -- which are considered symptoms of the virus. Despite making five or six sick call requests, Rodriguez claimed he couldn’t get medical care because he didn’t have a fever, according to Venters. After two weeks, he was moved to the isolation unit.
Rodriguez, 26, was one of the six original plaintiffs in the case and was seeking to be discharged ahead of his June release date because he claimed his asthma left him vulnerable to COVID-19. He was ultimately discharged in late April. Venters testified that Rodriguez tested positive for COVID-19 antibodies after he went home and told the court on Tuesday, “It was clear he had COVID-19 while at MDC and while he was seeking assessment and care of his symptoms.”
Venters said he also met with detainees who were not screened upon their arrival at MDC, in violation of CDC guidelines, and that some detainees did not have access to adequate cleaning solutions or masks that fit properly. He said the jail should create separate sections for all inmates with weakened immune systems and other medical risks, where they’d get more frequent medical screenings. He described doing something similar at Rikers a decade ago during the H1N1 outbreak.
During cross examination, James Cho, an assistant U.S. attorney in New York’s Eastern District, asked Venters if it’s possible that the low numbers were due to MDC’s success at preventing the spread of COVID-19. Venters said that would be “inconsistent” with what he knows about the lack of testing at the facility.
Cho also questioned if Venters had any proof that healthcare providers didn’t respond to sick call requests.
“That is the crux of the failure,” Venters responded, adding, “the system is set up to make that unknowable.”
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Cho argued that the petitioners can’t meet the burden of proving “deliberate indifference,” the standard in determining whether inmates’ Constitutional rights were violated. He denied allegations that the jail had ignored the needs of people with serious medical needs, and said the Bureau of Prisons had “successfully contained the spread of the coronavirus.” No deaths due to COVID-19 have been reported at the jail.
The government attorneys also accused the petitioners of trying to short-circuit the existing process by which prisoners can ask judges for compassionate release.
Three government witnesses disputed Venters’s findings and recommendations. Nicole English, assistant director of the health services division of the Bureau of Prisons, said she was initially alarmed after reading the doctor’s report. But she didn’t see the problems he described when she made her own unannounced visit with a small team in early May, after Venters’s report made news.
“I was pleasantly surprised to see how clean the institution was,” she said, describing inmates wearing protective masks. “Staff were doing what they needed to do to stay safe and keeping the inmates safe to the best of their ability."
English said the normal sick call procedure changed to paper slips when the pandemic hit, and inmates went into lockdown mode with just three hours a week of recreation in small groups. She said there were initially some delays in getting these notes to healthcare providers, but that inmates were put on a schedule to be seen and the timing would depend on their symptoms. She said no emergent or urgent cases were still waiting to be seen, and that more testing kits were being sent to MDC, now that the shortage has lessened.
The government also presented an epidemiologist from Lenox Hill Hospital who refuted Venters’s contention that people at heightened risk should be placed together. She said that could pose additional health risks to those with compromised immune systems.
Another expert witness for the government, former Pennsylvania Department of Corrections Secretary Jeffrey Beard, said putting inmates of different backgrounds, security levels and gang affiliations in the same area could also be dangerous.
Beard visited MDC on April 28th – a visit he said was announced – and described seeing staffers and inmates wearing masks, except when alone in a cell or office. He also described seeing plenty of soap and disinfectant in cells.
Beard said he visited the same four housing units as Venters and that inmates and staffers described computers and phones being wiped down with disinfectant after every use, contrary to what Venters reported. He said the warden told him temperature checks were taken twice a day for inmates in isolation and that sick calls were conducted twice a day in every housing unit, for inmates to request medical care.
When questioned by an attorney for the plaintiffs, Beard acknowledged he did not see any sick calls during his approximately two hour long visit.
The government claims it has thousands of pages of new evidence it’s collected showing that sick calls are logged into a computer system. Judge Rachel Kovner asked the two sides, in their summaries, to recognize she’s already read their voluminous filings. “What I’m looking for is what you think the evidence shows on deliberate indifference” of inmates’ rights, she said, referring to the legal standard for granting a preliminary injunction.
Closing arguments for the case are scheduled for Thursday afternoon. A similar suit was recently filed against the federal jail in Manhattan.