By Frank G. Runyeon

Law360, New York (May 14, 2020, 8:37 PM EDT ) A New York federal judge on Thursday expressed skepticism about releasing inmates who claim a Brooklyn prison is keeping them in unconstitutionally unsafe conditions amid the COVID-19 pandemic.

At the close of the third day of a protracted preliminary injunction hearing, U.S. District Judge Rachel P. Kovner said she was dubious about granting Metropolitan Detention Center inmates' request for release due to inept medical care they claim amounts to cruel and unusual punishment, even as she puzzled over MDC's decision not to quarantine or isolate many inmates with COVID-19 symptoms.

"I would be disinclined to order the release of these inmates," Judge Kovner said, offering "tentative thoughts" on her forthcoming ruling. "I wouldn't conclude from this record that there are no places that could be safe for these individuals at the MDC."

"That's not even something that Dr. Venters argued," Judge Kovner pointedly noted, referring to a damning expert report by Dr. Homer Venters who catalogued faulty virus screening, neglected and discarded sick-call requests, inadequate medical care, and a "gross deviation" from Centers for Disease Control and Prevention and correctional health care standards.

The judge said that the facts at hand did not suggest setting aside the Prison Litigation Reform Act, a key obstacle to the prisoners' central request for release from the 1,700-inmate facility that was used by government counsel in their bid to stymie the lawsuit. The PLRA limits a judge's ability to release any inmate through a federal civil action over prison conditions and generally requires inmates to exhaust all their other administrative options.

In addition, the supposed lack of supplies at MDC by itself was unlikely to lead to a finding that the prison had shown "deliberate indifference" to the inmates' medical needs, which would be required to find that the warden had violated their Fifth and Eighth Amendment rights, the judge noted.

While the judge delivered the disappointing news to the inmates' counsel at the end of the day, she had nevertheless repeatedly signaled skepticism with some of the health care practices at MDC.

"You agree that the standard is to isolate people with COVID-19 symptoms?" Judge Kovner asked government counsel James Cho.

Cho replied that it was not so simple and that it was a "clinical decision." An inmate's cough might be a seasonal allergy, he argued, offering an example of a COVID-19 symptom that might not warrant isolation from the general prison population. The prison wouldn't want to risk that inmates' health by placing him with COVID-19-positive inmates, he reasoned.

"Why risk it?" asked Cho.

Judge Kovner spelled out two reasons.

"Because CDC guidelines say isolate people with COVID symptoms, one, and two, because if you keep them in the unit and they have COVID, there's a risk to others in the unit."

Cho reiterated that it was a "sliding scale," where a single symptom is not necessarily cause to isolate inmates showing COVID-19 symptoms — an answer that appeared to befuddle the judge.

"Hmm... Okay," Judge Kovner replied. She paused, then moved on.

During their closing statement, inmates' counsel rattled off a sampling of roughly 150 sick call requests from inmates, showing that prisoners reporting symptoms of the virus had said their pleas for medical attention were being ignored for long stretches of time.

"I have had a persistent cough that just won't get better," inmates' counsel Katie Rosenfeld said in reading one prisoner's request for medical attention. "I'm not sure what this is but I've written you about a week ago on it and I still haven't been seen. I hope this isn't the virus symptom."

The judge did say she was inclined to draw an adverse inference regarding several weeks' worth of destroyed sick call requests, potentially ruling that it's impossible to know how many people reported COVID-19 symptoms for the weeks after the lawsuit was filed while prison staff shredded them, despite inquiries from inmates' counsel seeking sick call records during that time.

Judge Kovner directed the inmates' and government's counsel to sign a stipulation on a host of practices they agree the prison should be doing regularly, including cleaning common areas, having staff wear personal protective equipment, providing ample soap supplies, doing thorough virus screening at intake, and twice daily doing medical rounds, among other practices.

Judge Kovner also requested the sides file proposed findings of fact by Tuesday as she waded through "thousands of pages" of filings.

The inmates are represented by Alexander A. Reinert and Betsy R. Ginsberg of Yeshiva University's 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 Adam LoBelia.

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