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North Carolina Cancer Patient Dies From COVID-19 After BOP Denies Compassionate Release and Sentencing Judge Rejects Appeal

Dailey, a podiatrist, was sentenced in the Eastern District of Missouri to a 27-month sentence for Medicare fraud, a nonviolent crime. He was especially vulnerable to death from COVID-19 because of his age and a compromised immune system resulting from chemotherapy for lymphoma.

However, those factors were of little significance to BOP, which fought his release request, or to his sentencing judge, who denied the terminally ill prisoner’s motion to overturn BOP’s denial.

FCC-Butner, whose 3,700 prisoners include some of BOP’s oldest and sickest, has been touted by the agency for its successful response the COVID-19 pandemic. But it has seen 27 of BOP’s 154 total deaths to the disease, more than any of its 126 other facilities.

As reported elsewhere in this issue of PLN, a federal civil rights lawsuit was filed against BOP on October 26, 2020, over the agency’s handling of the COVID-19 crisis at FCC-Butner. The state chapter of the American Civil Liberties Union (ACLU) is one of several groups representing the prisoner plaintiffs, of whom Dailey was one. (See: Hallinan et al. v. Scarantino et al., Case No. 5:20-cv-00563-M, U.S.D.C. (E.D. N.C.).

“We think of prisons as closed environments, but they’re really not,” said Maria Morris, an attorney with the ACLU National Prison Project. “They’re closed for the people who are incarcerated there, but there are people who are going into the prison from the community every single day. If there’s COVID in the community, there’s likely going to be COVID in the prison.”

Morris also said Dailey assisted the ACLU in building the case against Butner, helping attorneys understand the problem from his dual perspectives as a medical professional and a prisoner.

“He was a doctor, so he thought about things in a particular way,” she noted.

Dailey’s attorney, Carter Law, insisted that she had followed the correct procedure in making the doctor’s requests for release, filing the first not long after Dailey arrived at FCC-Butner in 2019. That request came under the enhanced compassionate release process mandated by Congress in the First Step Act of 2018.

Daily’s first application for compassionate release with FCC-Butner’s warden was denied, but he continued to seek review of that denial through the BOP’s grievance system. There his release requests were still denied, despite the fact that the BOP’s own oncologist said his condition was terminal.

So Carter filed another appeal on Dailey’s behalf with the BOP Central Office in Washington, D.C. While that was pending, she also filed for judicial review of the agency’s previous denial with Dailey’s sentencing court in Missouri. As provided under the First Step Act, a prisoner may file for compassionate release to his sentencing judge after his request to the warden is rejected, with no need to file further appeals to the BOP. The judge, however, dismissed Dailey’s claim “for failure to exhaust administrative remedies.”

This convoluted system, in which BOP disregards its own medical expert to argue against release of a terminally ill prisoner, and disregards the plain language of the law that permits filings like Dailey’s to proceed, contributed to his infection and death, Morris said.

Morris said it was one thing for prison officials to flounder in their initial response to the pandemic, but after eight months, they are still making the same mistakes.

“There is a difference between not doing something for a week, and how much culpability there might be for that, versus not doing something for months and months,” she said. “The amount of COVID-related deaths there made it important for us to continue with this.”

Morris said even when Dailey was sick, “he was helping people get their papers together to request compassionate release.”

“He remained, until my last conversation with him, totally optimistic that he would return home,” added attorney Law.

“By the time he was taken out to get medical care, even though he was getting sicker and sicker, they had to take him to the hospital by ambulance,” Morris recalled. “What happened to him was terrible.” 


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Related legal case

Hallinan et al. v. Scarantino et al.