By Adrian Cruz

Law360 (June 10, 2020, 6:14 PM EDT ) A split Sixth Circuit panel has said that a lower court erred in ordering the removal of vulnerable prisoners from a federal prison due to the COVID-19 outbreak, ruling that the Federal Bureau of Prisons made a reasonable effort to protect its inhabitants from the virus.

Sixth Circuit judges Julia S. Gibbons and Deborah L. Cook decided Tuesday to overturn an Ohio federal court's April injunction ordering that prisoners considered at risk of COVID-19 be moved out of the high-density Elkton Federal Correctional Institution. The judges ruled that keeping the prisoners at Elkton during the pandemic does not violate the Eighth Amendment, as doing so is not considered "cruel and unusual punishment."

In the opinion signed by Judge Gibbons, the panel said that even though six people had died and dozens more become sick from COVID-19 at Elkton, the Bureau of Prisons took sufficient action to combat the spread of the virus. By implementing a six-phase plan that includes safety measures such as health screening of incoming inmates, distribution of face masks and a 14-day quarantine of the entire prison, the panel said, the BOP demonstrated that it was not acting with indifference.

"Here, while the harm imposed by COVID-19 on inmates at Elkton 'ultimately [is] not averted,' the BOP has 'responded reasonably to the risk' and therefore has not been deliberately indifferent to the inmates' Eighth Amendment rights," the panel said.

The prisoners argued that the dormitory-style housing in Elkton made it difficult for them to properly socially distance themselves and that the hygiene supplies they received were inadequate. While acknowledging that they were given masks, the prisoners said they had no way to clean them, which reduces their effectiveness.

Because of the continued spread of COVID-19 in the prison, the prisoners argued that the BOP was negligent in making them stay at the low-security facility when alternatives existed including transfers and home confinement.

"Today's ruling is a major loss for incarcerated people who are at risk from this deadly disease," David Carey, senior staff attorney for the ACLU of Ohio said in a statement provided to Law360. "We are very disappointed that the Sixth Circuit failed to recognize the Bureau of Prisons' conscious refusal to move medically vulnerable people away from this outbreak as an urgent problem."

Last week, U.S. Supreme Court Justice Sonia Sotomayor blocked the district court's injunction until the Sixth Circuit decided on the U.S. government's appeal. The government argued that that the prisoners could not bring a habeas challenge to their prison conditions in the midst of a pandemic, and that the district court did not properly apply the Prison Litigation Reform Act of 1995.

While agreeing that the BOP was not negligent in keeping the prisoners at Elkton, the panel rejected the government's claims that the prisoners were not entitled to challenge their prison conditions. According to the panel, the inmates medically vulnerable to COVID-19 were not challenging the conditions under which they were held, but rather the fact of their confinement. Because those prisoners were correct in bringing a habeas challenge, the panel said, the PLRA does not apply to their claims.

Chief Judge Ransey G. Cole Jr. dissented, saying that removing at-risk prisoners from Elkton is the appropriate response considering the number of people who have already either become sick or died at the prison and that the BOP was deliberately indifferent in not allowing them to be released.

Judge Cole noted that under the CARES Act, the U.S. attorney general directed crowded prisons such as Elkton to increase the number of prisoners released to home confinement in order to reduce the risk of contracting COVID-19.

"The petitioners will be irreparably harmed without an injunction. In the fight against the spread of COVID-19, time is plainly of the essence. Each day spent in detention at Elkton increases the threat to the inmates' health and life," Judge Cole said.

Citing the 2017 case Darrah v. Krisher, in which officials at another prison were found negligent for having given prisoners an ineffective treatment for psoriasis despite the knowledge of an alternative, Judge Cole said that the failure to release at-risk prisoners along with the substandard protective measures gave the prisoners a good chance at succeeding in their constitutional violation claim.

"Our case law is clear: We do not turn a blind eye to prison conditions when the treatment prison officials provide in response to a serious medical need is 'so woefully inadequate as to amount to no treatment at all,'" Judge Cole said, citing the 2011 Sixth Circuit decision in Alspaugh v. McConnell, which also dealt with indifferent medical care. 

A representative for the Ohio Justice and Policy Center told Law360 in a statement that it was a disappointing result and that they believe the government failed in its duty to protect the prisoners. 

"When the government takes away people's liberty, it has a solemn obligation to provide for their safety, including from a highly infectious, potentially fatal disease," David Singleton, Executive Director of the Ohio Justice & Policy Center said. "Prisons are uniquely dangerous places in a time of COVID-19, and Elkton has become a uniquely dangerous prison for the low-security, medically vulnerable prisoners there."

Also on Tuesday, a New York federal judge denied a similar request to release inmates from Brooklyn's Metropolitan Detention Center, ruling that despite deficiencies in the prison's COVID-19 response, officials there likely did not act with "deliberate indifference" to the health threat.

A representative for the Federal Bureau of Prisons declined to comment Wednesday. 

U.S. Circuit Judges Ransey Guy Cole Jr., Julia Smith Gibbons and Deborah L. Cook sat on the panel for the Sixth Circuit.

The government is represented by James Raymond Bennett, Casen Ross and Sarah Carroll of the U.S. Department of Justice. 

The prisoners are represented by Michael Zuckerman, David Singleton and Mark Vander Laan of the Ohio Justice and Policy Center and Freda Levenson, Joseph Mead and David Carey of the ACLU.

The case is Craig Wilson, et al. v. Mark Williams, et al., case number 20-3447 in the U.S. Court of Appeals for the Sixth Circuit.

--Editing by Peter Rozovsky.

Update: This story has been updated to include comment from the Ohio Justice and Policy Center. 

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