By Frank G. Runyeon

Law360 (June 15, 2020, 6:27 PM EDT ) One man recalled they came to take the sick away at night — when they came at all.

As COVID-19 has spread through New York City's population, inmates in the city's largest federal jail recount tales of fear, illness, and indifference at the hands of guards and medical staff during a suspected outbreak. Their narrative forms the foundation of the prisoners' lawsuit seeking release from conditions their attorneys call cruel and unusual punishment as they battle against a starkly different account from the government.

The Federal Bureau of Prisons has denied the allegations of neglect, claiming no prisoners have died of the virus. U.S. District Judge Rachel P. Kovner recently ruled that there is not enough evidence to warrant freeing pretrial detainees and convicted criminals from Metropolitan Detention Center in Brooklyn but will consider a new request if more evidence comes to light.

But even BOP's top health official agrees the inmates' claims are "alarming," if you choose to believe the men and women locked inside.

In their own words, seen in over 30 detailed declarations filed in the pending emergency lawsuit by medically vulnerable inmates, a dramatic and disturbing picture emerges. The snapshots of life inside tell a story of how prisoners' pleas for a doctor's care or a nurse's attention are often ignored or dismissed as dishonest.

The true scope of any COVID-19 outbreak in MDC is unknown, attorneys for the inmates have argued, because the jail tested just 17 of its approximately 1,700 inmates at the height of the pandemic. By May 26, six of those 17 tested positive.

Recently, the jail said it has ramped up testing, conducting more than 100 tests in two weeks, finding three more COVID-19-positive inmates by June 11. Forty MDC staff have also tested positive; the prison says it does not test its officers and relies on self-reporting.

Prison officials have also destroyed key evidence by shredding inmates' handwritten requests for medical attention as they wait in their cells for the pandemic to pass, Judge Kovner found. That practice, the inmates' expert says, is part of a system designed to make pinning down evidence of medical neglect "unknowable."

Faced with conflicting accounts, the judge has so far credited the governments' efforts but did fault the prison's slow medical responses and failure to appropriately isolate sick inmates. Judge Kovner said the current evidence does not show "criminal recklessness" by MDC and its health care failures were more likely "negligent errors."

'They Never Checked On Me'

The monolithic MDC complex rises above the toxic Gowanus Canal, a few blocks from the half-million graves at the Green-Wood Cemetery in Sunset Park. Scant information has escaped the complex during the pandemic — an issue also at the center of another lawsuit over inmates' limited access to their attorneys — beyond the conflicting accounts of prison officials and those imprisoned there.

In account after account, prisoners swear in court declarations that they have fallen ill with COVID-19 symptoms, but that their jailers have shown little interest in their sickness.

In an interview with Law360, lead plaintiff Hassan Chunn said he and his roommate fell ill in mid-March on Unit K83, shortly after a young man arrived in a nearby cell coughing and sneezing.

"I had a sore throat, coughing, sneezing," as well as tightness in his chest, Chunn said. "You know, the symptoms that they admonish you about on the news for COVID-19."

Since April 1, prisoners described being locked in their cells 24 hours a day, save for an hour-or-less window on Mondays, Wednesdays and Fridays to either shower, clean their cells, make a phone call or use a computer. Chunn said the men in his unit could only report their symptoms via a glitchy, communal pay-per-email request system during the three brief periods they were let out of their cell.


"It's expensive to survive in there," Chunn said, noting that he worked "for peanuts or pennies."

Chunn paid $2 to submit a "sick call" request and report his symptoms. He waited two days to be told the prison was scheduling a date for him to see a doctor.

"That date never came," and medical staff did not examine or treat him during his illness, Chunn said. Even nurses distributing medication to other prisoners said they couldn't help him.

Chunn remembered being locked in his cell, scared and unable to sleep, as he and his cellmate's symptoms grew worse.

"We about to die in here," he remembered thinking. Soon it seemed like the entire 120-man unit was reporting symptoms. "Before you know it, the whole unit was sick," Chunn said.

Four floors down, inmate Jermal Dixon in a separate MDC unit told a similarly unsettling story in his court filing.

"I had headache, fever, I was cold and shaking," Dixon wrote. "My cellmate was sick for a long time, with coughing, and shaking, for about a month until he got over it."

"If you complain you feel sick, the staff just leave you in the cell and tell you, 'Deal with it,'" Dixon added, describing his experience on Unit 43. "You have to really scream and yell to get medical attention."

Panic buttons are often broken and inmates bang loudly on their cells, crying out for a doctor, inmates across the prison said. The inmates recounted more illness and neglect as prison officials reported moving to a paper "sick-call" request system during the lockdown.


"In late March, I started to feel really sick. I couldn't taste or smell anything, I had chills, my body was weak, and I couldn't breathe. I asked for medical attention from the guards," wrote Justin Rodriguez. He asked medical staff five or six times for a paper slip to put in a formal request, but none ever came.

When someone finally arrived to take his temperature, the staffer told Rodriguez there was nothing they could do because his temperature was normal. "I knew this was wrong because I could feel my body and how sick I was," Rodriguez said. He said he suffered in his cell for two weeks.

Rodriguez later tested positive for COVID-19 antibodies, court records show.

When nurses did examine someone's illness, they often relied on body temperature to decide whether that person was ill, needed treatment or should be placed in quarantine or isolation, according to the inmates. But that practice clashes with CDC guidance, which indicates a host of possible COVID-19 symptoms that should trigger action, the judge found.

"When I said I was sick, they said they would tell medical but medical never came," wrote Victor Sojos-Valladares, who fell ill in early April after his cellmate had come down with something on Unit 72. "Every day I got sicker. I started to have a lot of trouble breathing. I got so desperate I decided to start refusing to eat."

He said he refused three meals before the prison staff examined him. Both Sojos-Valladares and his cellmate had a fever, according to the inmate. That's when the guards took them away.

Another man on that seventh-floor unit, Hugh Brian Haney, wrote about the men's disappearance.

"A friend of mine — Victor Sojos — and his cellmate were taken from the Unit on April 15 or April 16, 2020. The rumor is that one or both of them are symptomatic for COVID-19," Haney wrote.

Both of them had been taken to isolation and had tested positive for COVID-19.

But Sojos-Valladares said he received little medical care in isolation. For 10 days, prison staff made no notes whatsoever in his medical record, the inmates' expert said. Sojos-Valladares said nursing staff merely checked his temperature once a day and sometimes clipped a pulse oximeter on his finger.

On the fifth floor, Trevor Carpenter told the court he was in the throes of a COVID-19-like illness in late April.

"I have experienced illness since the lockdown started," Carpenter said. "I do not know if I had the virus because I was not tested. I had the chills, fever, and felt very ill." Carpenter said he was not given a test.

Shredded Sick-Call Requests

Prison officials flatly reject the accusations of medical neglect at MDC, calling the inmates' declarations to the court "self-serving" and casting doubt on the truthfulness of "criminals" and others held in pretrial detention who have been deemed a flight risk or too dangerous to be released.

But as Dr. Homer Venters, the lone physician to examine the evidence, pointed out to government attorneys under cross-examination, the problem is that the prison's practice of shredding the paper sick-call slips — at the height of the pandemic and in the midst of the inmates' lawsuit — leaves little evidence to say whether the prison was ignoring inmates' pleas for medical attention.

"You have no knowledge if a health care provider responded to a sick-call request, do you?" asked James Cho of the U.S. attorney's office during a May 12 hearing.

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

The government did preserve 1,000 pages of electronic sick-call requests and told the court it found a few hundred paper slips "following a search of the housing units" from the beginning of the pandemic.

Of those salvaged requests, inmates' attorneys pulled out 210 that show inmates clearly reporting COVID-19 symptoms. The government redacted the inmates' names, but the notes add yet more claims of medical neglect amid symptoms of the virus.


Attorneys for the Bureau of Prisons brush off the inmates complaints as unfounded, pointing to their own agency's surprise inspection on the heels of Venters' damning report at the end of April.

The chief health officer for the federal prison system said she was "pleasantly surprised" by the conditions at MDC Brooklyn and had expected worse, given sanitary problems she had seen last December.

The prison is no stranger to allegations of medical neglect. Amid a public outcry in the winter of early 2019 when a power outage threw the prison into darkness and freezing temperatures, U.S. District Judge Analisa Torres toured the facility and saw one man with a festering gunshot wound and another with untreated respiratory problems.

But BOP attorneys argue the conditions at MDC during the COVID-19 pandemic, however "imperfect," were far from unconstitutional.

Importantly, the prison's health expert said no prisoners have died of COVID-19. Asma Tekbali told the court she personally reports the number of deaths each day at a busy New York City hospital. Tekbali noted that two inmates had been hospitalized, and the one who tested positive for COVID-19 did not require intensive care.

"If there have been no deaths, I cannot really ascertain that there have been any severe illnesses at the facility," Tekbali said, referring to the situation as an "alleged outbreak."

There have, however, been deaths at MDC — one each in March, April, May and June — although BOP denies there is any link to COVID-19.

The most recent death sparked protests outside the center after the BOP reported an asthmatic man, Jamel Floyd, died shortly after being pepper sprayed. His family is now represented by Katie Rosenfeld, an attorney for the inmates' proposed class action.

"What people inside the MDC say is that when they report symptoms of COVID-19 or sickness, they are largely ignored," Rosenfeld said making her case to the judge in May, where she read aloud the inmates' own words from sick-call slips and declarations.

"To the extent that they are receiving medical requests and throwing them out and putting people on a schedule and seeing them when it's convenient for them, that is perhaps the definition of deliberate indifference," Rosenfeld said, citing the standard for cruel and unusual punishment in the case.

If that is not enough evidence of neglect, the attorneys argued, that is perhaps because the prison has destroyed it.

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 Brian Baresch and Kelly Duncan.

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