By Frank G. Runyeon

Law360, New York (May 12, 2020, 11:02 PM EDT ) A senior Bureau of Prisons official told a New York federal judge on Tuesday that she was "pleasantly surprised" by what she discovered during her unannounced inspection of a Brooklyn prison accused of depriving inmates of proper medical care during the pandemic.

Amid an 8-hour hearing over a petition for release by inmates at the Metropolitan Detention Center, BOP health services director Nicole C. English told U.S. District Judge Rachel P. Kovner that she conducted an audit of the facility following a doctor's searing inspection report, but found little evidence to support the report and touted photographic evidence as proof.

"My overall findings were actually surprisingly good," English testified, describing how she got the order from BOP Deputy Director Thomas R. Kane to put together a team within a matter of hours and travel to New York the next day for the spot inspection.

English had found the conditions Dr. Homer Venters described in his April 30 report "alarming," and arrived at 11:30 a.m. Saturday, May 2, for the inspection with a team of agency experts.

"The warden came down 2 or 3 minutes later and was very surprised," she said, describing how she met with the head of the Brooklyn prison for a half-hour before she "walked with the warden and saw well over 50 staff members" as her team investigated the conditions in the facility.

In sharp contrast to the inmates' expert report, English said she found a clean jail with inmates and staff wearing personal protective equipment, or PPE, high morale, access to soap, and that functioning procedures for sick inmates to request medical attention were "actually occurring" despite what Venters had reported. She included a series of photographs showing well-stocked shelves and helpful signage.

"At the end of the day when we looked at the findings, I was pleasantly surprised," English said.

English also said she or her team had inspected every general population unit and her staff had viewed the quarantine unit and the isolation unit — although there were no inmates currently held there.

"I spoke to several inmates, I spoke to well over 50 inmates, at least 50 — at their cells, looking in their cells," English told the judge, later claiming that not one of them had complained about access to medical care — refuting a key claim in the inmates' petition that the prison was ignoring sick inmates' pleas for health care by, among other things, destroying paper sick-call slips.

English did, however, testify that she found a reason for a slight delay in inmates receiving medical care.

"The officers were trying to be helpful and throwing these sick-call slips in an exam room," English said, instead of having nurses gather the requests directly from the inmates and conduct a triage screening at their cells to see firsthand how serious their symptoms were face to face. "I did not see any malicious reason to take those slips," she added later.

The medical staff had seen "a huge volume" of inmates, English said, relying on prison data.

English also recommended that the warden decontaminate officers' equipment between shifts, consistently store PPE in the same place in each unit, and have supplies handy to clean inmates' phones — all of which were immediately put into practice, she said.

In filings, inmates' counsel decried the lack of notice that such an internal inspection had been conducted last week, having heard about it for the first time over the weekend.

Under cross examination, English readily admitted that Venters' findings were alarming, but reiterated that she had found little evidence of what he reported.

Inmates' counsel Alexander Reinert skeptically suggested that her half-hour talk with the prison officers would have given prison staff time to prepare for her "surprise" inspection and mused about why the warden was on-site on a Saturday — a day he doesn't typically work.

Reinert also noted that English had not brought a medical expert along with her team and that she had failed to take any notes to back up her claims that she spoke to 50 inmates and or what they told her. Reinert also quizzed why English felt no need to bring a thermometer to back up her claim that the cells felt "very comfortable" to her, despite Venters' claim some cells were "frigid."

The judge appeared to struggle with the utterly contradictory evidence supplied by both sides.

"It's not the clearest factual record I've ever seen. There's a lot of evidence and not consistent accounts," Judge Kovner said at the close of the hearing and requested a summary by each side of what they believe the factual record shows after the final witness is examined on Wednesday morning.

Also during the hearing, the judge reserved judgment on a motion to sanction the government for destroying sick-call records after the government argued for the first time that there may be some electronic record of the shredded paper sick-call slips.

Inmates counsel Katie Rosenfeld was clearly frustrated by BOP's sudden revelation of electronic record after weeks of not turning over such records.

"The ship, honestly your honor, has sailed," Rosenfeld said.

Judge Kovner ordered the BOP hand over those records and said she would wait to rule on the issue of spoliation.

The government also had its opportunity to cross examine Venters during the hearing, pushing back on how he arrived at his conclusions, including accusations of faulty virus screening, ignored and discarded sick-call requests, inept medical care, and a "gross deviation" from Centers for Disease Control and Prevention and correctional health care standards.

"You have no knowledge if a health care provider responded to a sick-call request, do you?" said government counsel James Cho.

"That is the crux of the failure," Venters replied quietly. "The system is set up to make that unknowable."

The hearing will continue at 9:30 a.m. Wednesday with testimony from a government expert who toured the prison.

The inmates are represented by Alexander A. Reinert and Betsy R. Ginsberg of the Benjamin N. Cardozo School of Law and Katherine Rosenfeld and O. Andrew F. Wilson of Emery Celli Brinckerhoff & Abady 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 Michael Watanabe.

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