By Frank G. Runyeon

Law360 (April 27, 2020, 4:44 PM EDT ) A Brooklyn prison has asked a New York federal judge to dismiss a lawsuit seeking to release 537 inmates amid a COVID-19 outbreak, slamming the civil rights petition as an effort to "short-circuit the entire criminal justice process."

The Metropolitan Detention Center framed the inmates' petition as an unprecedented attempt to certify at least a third and potentially all 1,665 people incarcerated there as eligible for release during the novel coronavirus pandemic, arguing in a motion on Friday that they had failed to show any alleged violation of the detainees' Fifth or Eighth Amendment protections against cruel and unusual punishment.

If the inmates succeed in convincing the court to order "their immediate and unwarranted release" from prison over COVID-19 concerns, federal judges in criminal cases would lose "the authority to control their own dockets," as the defendants they ordered detained and the criminals they ordered imprisoned at MDC are set free through this civil action, MDC argued.

"The implications of such an extraordinary order would be staggering," the government contended. "Under petitioners' theory of appropriate habeas relief, a judge in a federal civil action would be permitted to commute the sentences of hundreds of post-conviction inmates and free hundreds of dangerous pretrial inmates without any conditions of release."

"Significantly, petitioners cannot cite any legal authority empowering this court to order the 'immediate' release" of inmates on the theory that their underlying medical problems put them at risk if they are infected with COVID-19, the prison argued in its motion before U.S. District Judge Rachel P. Kovner.

The government asked the judge to dismiss the case or grant the prison summary judgment to end the inmates' alleged attempt to "circumvent" the authority of sentencing judges to reduce sentences, as well as the discretion of the Federal Bureau of Prisons to grant home confinement.

The longstanding judicial mechanisms are working just fine, the prison argued, pointing to the successful compassionate releases of two named petitioners weeks earlier. U.S. District Judge Denise L. Cote released Nehemiah McBride on April 7, and U.S. District Judge Brian M. Cogan released lead petitioner Hassan Chunn the following day.

As for the remaining named petitioners — Ayman Rabadi, Justin Rodriguez, Elodia Lopez and James Hair — the court lacks the authority to release them, the prison argued, either because they have not yet exhausted their other legal options or because the appropriate authority has already rejected their requests.

The bid to certify the broader pool of inmates as a class should also fail, the government argued, because the inmates are not sufficiently similar. As such, each individual's medical needs should be weighed separately.

The prison also argued against the inmates' request to appoint a special master to head a "Coronavirus Release Committee" to evaluate which inmates were appropriate for release during the COVID-19 pandemic, demanding that it "must be soundly rejected," because "the court cannot give a special master powers that even it does not have."

In opposing the inmates' central contention that the Brooklyn federal prison violates inmates' constitutional protections against cruel and unusual punishment, the government said that BOP had "instituted a multi-step action plan and taken extensive measures to mitigate the risks COVID-19 poses," effectively reducing its spread, and properly attending to any sick inmates.

Considering all that, the government said the inmates had failed to show that the environment was sufficiently dangerous and that prison officials had displayed the requisite "deliberate indifference" to the prisoners' health and safety.

As of Thursday, the prison reported that six inmates and 26 staff members had tested positive for COVID-19.

The government noted the "limited confirmed positive cases" and "further limited number of inmates with serious health conditions requiring transport to a hospital for treatment," before brushing off the inmates' argument that MDC was underreporting infections, having tested only 12 of its nearly 1,700 inmates as of Thursday.

"Even if the rate of infection at the MDC were higher than reported based on the alleged limited testing of inmates, the BOP has already taken significant steps to mitigate the spread of infection and taken steps to treat inmates with symptoms of infection," the government said.

Tackling the criticism of inadequate "social distancing" within the prison, the government simply noted that "movement within the facility has been minimized as much as possible" and that masks and cleaning supplies had been provided.

The prison has been on lockdown since March 13 as an infection control measure, and inmates are denied any visitors.

The inmates first filed suit in late March, claiming that the Brooklyn federal prison was violating medically vulnerable inmates' constitutional rights by failing to provide adequate safeguards against the spread of the novel coronavirus.

The inmates argue that release is the only means of protecting them from MDC's "unconstitutional treatment," because continued incarceration "in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease ... will prove deadly because of petitioners' vulnerable condition," according to the inmates' refreshed writ of habeas corpus filed Thursday.

MDC inmates have also had restricted access to phone calls — the subject of separate litigation before U.S. District Judge Margo K. Brodie that has revealed COVID-19 positive inmates have been denied access to their attorneys.

A correctional health expert toured the prison on Thursday after Judge Kovner approved the inmates' request for an independent inspection and report.

Counsel for the inmates, who was also present during the inspection, told Law360 that many inmates, including one who later tested positive for COVID-19, said their pleas for medical attention were ignored.

Counsel for the inmates declined to comment on the government filing before they filed their response.

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

The government is represented by James R. Cho, Seth D. Eichenholtz, Joseph A. Marutollo and Paulina Stamatelos 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 Nicole Bleier.

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