By Frank G. Runyeon

Law360 (April 15, 2020, 1:26 PM EDT ) A New York federal judge on Wednesday ordered an expert inspection of a Brooklyn federal prison amid a lockdown during the coronavirus pandemic, allowing Federal Defenders of New York to examine conditions it argues are unconstitutional.

In a written order, U.S. District Judge Rachel P. Kovner directed the Metropolitan Detention Center to open its doors to a correctional health expert for the group, which represents indigent defendants in federal court, and two attorneys for inmates seeking release due to allegedly unconstitutionally unsafe conditions, allowing them to "inspect the conditions," review "logbooks and posted orders," and speak to inmates.

Attorneys for the inmates and the Federal Bureau of Prisons must meet and hammer out the details of the visit by Thursday, according to the order.

"Visiting the MDC is the best way for petitioners' expert to gain an accurate understanding of the conditions there. And petitioners' expert can be expected to produce a report and testimony that is more useful to the court if the expert observes conditions at the facility firsthand," Judge Kovner said. "I do not see burdens or dangers that outweigh an inspection's benefits."

On-site visits have been banned and communication restricted since the lockdown began in mid-March in response to the pandemic. The prison reported Tuesday that five of the 11 inmates tested at the prison are positive for COVID-19. Fourteen staff members have also contracted the virus.

The dearth of information about how the COVID-19 outbreak inside the Brooklyn detention center is affecting inmates is at issue in several lawsuits, including another lawsuit over restricted access to counsel being handled by U.S. District Judge Margo K. Brodie. That court recently learned that sick inmates at MDC have been denied phone calls to their attorneys.

The emergency petition before Judge Kovner claims the Brooklyn prison has violated four vulnerable inmates' Eighth Amendment protection against cruel and unusual punishment by failing to enact basic COVID-19 safeguards, arguing that a lack of testing likely meant far more inmates were infected with the novel coronavirus than currently known.

Law360 has found inconsistent COVID-19 testing protocols in prisons across New York, where federal prisons follow New York City health officials' guidance not to test mild or moderate cases, while local jails and state prisons say they will test their symptomatic inmates.

The prison had argued that Dr. Homer Venters shouldn't be allowed inside the 1,700-inmate facility because two of the petitioning inmates can simply describe their own experience to the expert, the conditions inside were "fluid" and "constantly changing," and moreover the expert had already expressed an opinion to the court.

The judge rejected those arguments Wednesday, ruling that shifting conditions were no reason not to inspect MDC. She said the expert's firsthand observations would be more valuable to the court than his secondhand account of the inmates' experiences, and that experts can always refine their views with more research — especially when the expert hasn't yet been inside the prison at the center of litigation.

"It would be particularly strange for me to conclude that an inspection by Dr. Venters would be of little use, because Dr. Venters has not previously offered an analysis of conditions at the MDC and the safety measures respondent has taken there," Judge Kovner ruled.

However, she declined to order prison officials to submit to interviews during the on-site inspection, saying that "would risk unduly burdening MDC operations during a crisis."

Judge Kovner also directed the two sides to negotiate a few other minor issues in dispute, including the precise duration and scope of the inspection as well as a protocol for interviewing inmates not involved in this litigation.

On Tuesday, the judge also granted a series of discovery requests seeking information on when inmates are tested for COVID-19, records documenting inmates' requests for medical attention, data on how much soap is available to prisoners, and dispositions of prison officials regarding conditions at MDC. The information is key to the inmates' arguments, the judge ruled.

"Were the evidence to establish that the MDC has received many sick call requests reporting COVID-19 symptoms, but that it has performed very few tests in response, that evidence would be relevant to petitioners' argument that the MDC's medical staff is not prepared to provide appropriate care to them (including diagnostic care) if they contract COVID-19," the judge ruled in the discovery order.

In the Wednesday order on the expert inspection, the judge said an update on negotiations is due by Thursday. According to the discovery schedule, the inspection is set to take place sometime next week.

Katie Rosenfeld of Emery Celli Brinckerhoff & Abady LLP, counsel for the inmates, said, "We're glad that Dr. Venters is going to have the opportunity to do the inspection. It will be very helpful to protect the health and safety of all the people in there to have an independent doctor tour the facility and monitor and report on the conditions."

The class of vulnerable inmates is represented by Alexander A. Reinert and Betsy R. Ginsberg of the Benjamin N. Cardozo School of Law and Katherine Ruth Rosenfeld and O. Andrew F. Wilson of Emery Celli Brinckerhoff & Abady LLP.

The government is represented by James R. Cho and Seth D. Eichenholtz of the U.S. Attorney's Office for the Eastern District of New York.

The case is Chunn et al. v. Edge, case number 1:20-cv-01590, in the U.S. District Court for the Eastern District of New York.

--Editing by Marygrace Murphy.

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