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North Carolina Prisoners at Deadliest Federal Prison File Suit on COVID-19 Response

With 27 prisoner deaths to the disease as of December 9, 2020 — the single largest share of the 154 BOP prisoners who have died during the pandemic — the suit alleges the prison has become one of the deadliest places to be incarcerated in the U.S., thanks entirely to BOP’s ineffective response to the spread of the novel coronavirus that causes the disease.

“The callous indifference to the health and safety of persons who are held in the facility is shocking,” said Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, one of the groups representing the prisoners.

The state chapter of the American Civil Liberties Union is also working on the case, as is the Charlotte firm of Winston & Strawn, LLP. The suit seeks class-action to represent all of FCC-Butner’s prisoners, as well as a “Disability Subclass” of those medically vulnerable due to pre-existing medical conditions, which the federal Centers for Disease Control (CDC) has identified as increasing the risk of severe complications from COVID-19.

The complex near Durham is BOP’s only North Carolina facility. It contains four prisons: a Federal Medical Center (FMC) housing prisoners in need of the highest level of medical care, such as surgery and cancer treatment, along with two medium-security prisons and a low-security prison. As of December 9, 2020, testing for COVID-19 had been administered to just over 1,000 of the nearly 4,000 men incarcerated there, according to the BOP database.

FCC-Butner’s low-security prison has been hit especially hard, notching the majority of COVID-19 cases and deaths in the entire complex. It holds 999 prisoners, more than its design capacity of 992, many with serious medical conditions. Prisoners live in 150-man dormitories, assigned to 7-by-10-foot cubicles that hold two-to-three ambulatory prisoners or one prisoner with a wheelchair.

The lawsuit alleges that prisoners are confined to crowded dormitories, sharing small cells and narrow hallways, which make physical distancing impossible. Most famous for housing Bernie Madoff, who pleaded guilty in 2009 to running a Ponzi scheme that bilked investors out of more than $65 billion, the entire complex housed 3,734 prisoners on December 3, 2020, BOP reported, in a facility designed for no more than 4,100.

The lawsuit further alleges that FCC-Butner has not implemented a coherent plan to deal with the pandemic. For instance, the use of masks has been treated as optional by staff and prisoners. Staff also has allegedly ignored some of those displaying COVID-19 symptoms, failing to employ widespread testing of prisoners and staff. As of December 9, 2020, one staff member had died from the disease and another 104 had tested positive.

At the beginning of June 2020, BOP tested all prisoners at the low-security prison, which had also reported the complex’s first positive result two months earlier. By June 3, there were 418 positive results. By June 10, the number grew to 696. But no attempt was made to isolate the positive cases before that date, and none of the positive cases received any care or monitoring during the entire month of June, the suit claims, despite BOP’s self-congratulations that its efforts at FCC-Butner had been “effective in managing infections and treating inmates.”

Prison officials also have allegedly continued to delay isolating prisoners who test positive for the virus for five to seven days, after which they are segregated in the Special Housing Unit (SHU) — better known as solitary confinement — under punitive conditions with neither monitoring nor treatment.

The lawsuit also alleges that FCC-Butner has reduced laundering, failed to disinfect common surfaces frequently and transported prisoners in crowded vans. Prisoners are allegedly crowded together when standing in line to receive meals or medication, and they use phones or computers, which are neither physically distanced nor sanitized between uses. Prisoners also share common facilities such as sinks, toilets, and day rooms, which are infrequently disinfected, the suit alleges.

Prisoners who have reported symptoms of COVID-19 have been ignored and told to submit a sick call request. If they do so, they are charged a $2 co-pay, though not necessarily tested for the coronavirus. If they have been tested with a positive result, they are tossed into SHU and not monitored or given treatment, the suit says, adding that some prisoners have hidden their symptoms for fear of being neglected in SHU until they die.

The mortality rate at FCC-Butner — about seven deaths per 1,000 individuals — is significantly higher than in the U.S. overall, which a database maintained by The New York Times pegged at less than 1 death per 1,000 residents as of December 9, 2020.

The lawsuit alleges FCC-Butner staff ignored the most basic pandemic precautions not only by waiting five to seven days after receiving test results to isolate prisoners who tested positive but also by isolating some prisoners in FMC on the same level with others receiving cancer treatments. In addition, staff and prisoner workers were allowed to go directly from jobs in medical isolation and quarantine housing areas to areas housing non-infected prisoners.

Even within quarantine areas, the suit continues, prisoners who started their quarantine on different days were mixed together.

On March 26, 2020, U.S. Attorney General William Barr issued a memorandum to BOP Director Michael Carvajal, one of the defendants in the lawsuit, identifying home confinement as a tool the BOP could use to keep prisoners safe from COVID-19.

On March 27, 2020, President Donald Trump signed the CARES Act, which expanded Barr’s power to immediately release prisoners due to COVID-19.

On April 3, 2020, Barr issued a second memorandum ordering Carvajal to take more aggressive steps to immediately transfer Butner prisoners to home confinement when possible.

But instead of following orders, BOP heightened standards for release eligibility and objected in court at least 20 times to judges who ordered FCC-Butner prisoners released on home confinement. Two months after the second memorandum was issued, only 42 FCC-Butner prisoners had been released to home confinement, relying instead on scheduled releases for most of the 1,000-prisoner reduction in its population since the pandemic began. See: Hallinan et al. v. Scarantino et al., Case No. 5:20-cv-00563-M, U.S.D.C. (E.D. N.C.).  


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Related legal case

Hallinan et al. v. Scarantino et al.