By Frank G. Runyeon

Law360, New York (June 9, 2020, 12:41 PM EDT ) A New York federal judge denied a request to release inmates at a Brooklyn federal detention center Tuesday, ruling that despite deficiencies in the prison's COVID-19 response, officials there likely did not act with "deliberate indifference" to the health threat.

In a 62-page order, U.S. District Judge Rachel P. Kovner denied a preliminary injunction request by inmates at the Metropolitan Detention Center due to inept medical care they claim amounts to cruel and unusual punishment, reasoning that the prison actually took aggressive steps to combat the spread of the virus.

Only one inmate has been hospitalized and none have died, the judge noted, pointing to available evidence.

"Based on the record from a two-day evidentiary hearing, I conclude that petitioners have not shown a clear likelihood that MDC officials have acted with deliberate indifference to substantial risks in responding to COVID-19," Judge Kovner ruled. "Rather than being indifferent to the virus, MDC officials have recognized COVID-19 as a serious threat and responded aggressively."

The judge's decision came after a lengthy hearing where she signaled her doubts that the inmates had presented sufficient evidence to meet the high bar required to show a constitutional violation.

Judge Kovner's ruling highlighted the Bureau of Prison's efforts to step up its health care precautions, including creating isolation and quarantine units and locking down inmates to restrict movement in the jail as it "heightened sanitation protocols," handed out masks and required screening for inmates entering the facility.

Nevertheless, the judge did note that there were significant problems with the prison's response to the pandemic.

"Evidence submitted at the hearing does expose several deficiencies in the MDC's implementation of Centers for Disease Control and Prevention guidelines," Judge Kovner said, and "those shortcomings merit a swift response from MDC officials."

In particular, the judge noted that the prison was too slow to respond to requests for medical attention via "sick-calls requests" — taking days or even weeks to respond — and generally failed to isolate symptomatic inmates as federal health officials recommend.

"In the main, the MDC appears not to be isolating individuals who report COVID-19 symptoms," in "tension with the CDC's guidance" that they should be kept away from other inmates, Judge Kovner said. This was corroborated by inmates' declarations that their COVID-like illnesses were ignored and they were not isolated despite reporting their symptoms, she noted.

"Under standards of care that both parties have accepted, MDC officials' apparent failure to fully implement the CDC guidance in these areas constitutes a deficiency in the MDC's response to COVID-19," Judge Kovner ruled.

The judge also found the BOP had destroyed evidence by shredding the paper sick call requests used as the pandemic worsened and inmates were confined to their cells. She applied an adverse inference on behalf of the inmates "that the destroyed records would have contained additional reports of COVID-19 symptoms."

And yet the judge accepted the prison's claims that it was doing the best it could under the circumstances, ruling that the evidence before the court did not clearly show that the inmates were at risk of serious harm, considering the MDC's virus response, or that the prison did not care enough to shield them from that risk.

"The facility's aggressive response to a public health emergency with no preexisting playbook belies the suggestion that these apparent deficiencies are the product of deliberate indifference on the part of prison officials," the judge said.

It is far more likely that the prison had made "negligent errors" in failing to follow CDC guidance than that the prison warden had shown "criminal recklessness" that disregarded an excessive risk of serious harm from the virus, the judge reasoned.

The inmates filed their emergency class petition in late March claiming the Brooklyn prison was violating medically vulnerable inmates' Fifth Amendment or Eighth Amendment protections against "deliberate indifference" and cruel and unusual punishment by failing to enact basic COVID-19 safeguards.

Release, the inmates argue, is the only means of protecting them from the 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' amended writ of habeas corpus.

Judge Kovner noted that this wasn't the end of the line for the inmates' requests for release and that they are free to present new evidence.

"I think the most significant thing is that a federal prison is not implementing the federal government's own guidelines to respond to COVID-19 in correctional facilities," said inmates' counsel Alexander Reinert.

"It's disappointing at this point, at least, that the petitioners are not entitled to relief," Reinert added, "but it's not the end of the case."

The government declined to comment.

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 Katherine Rautenberg and Jack Karp.

Update: This story has been updated with additional information on the ruling and comment from the parties.

For a reprint of this article, please contact reprints@law360.com.