By Reenat Sinay

Law360 (September 1, 2020, 10:20 PM EDT ) The warden at Manhattan's Metropolitan Correctional Center was ordered on Tuesday to respond to the continued concerns of a proposed class of inmates who say the prison's COVID-19 prevention efforts haven't improved since they sued over inadequate protection from the virus.

U.S. District Judge Edgardo Ramos declined to grant the inmates' request for a preliminary injunction against the prison after indicating at a June hearing that the parties should reach an agreement among themselves because most of what the inmates sought — testing, contact tracing and other prevention and containment methods — was already in the prison's power.

But on Monday, the inmates told Judge Ramos in a letter that the MCC has since faced a new outbreak of coronavirus within its walls and that warden Marti Licon-Vitale may not be sharing the entire picture in her bi-weekly reports to the court on the coronavirus situation there.

Although the number of inmates who tested positive since that hearing has "increased over seven-fold," the prison's tepid response has been "troublingly familiar," the inmates claimed, citing "poor" response times for sick calls, sloppy symptom screenings and the continued use of the "punitive" Special Housing Unit for isolation purposes, among other problems.

"These facts are especially troubling because they continue to cast doubt on the accuracy of respondent's prior representations to this court in both the warden's letter to the court filed in opposition to the preliminary injunction motion and the bi-weekly reports she has issued thereafter," the inmates said.

The federal inmates sued the MCC in April, arguing that the prison's failure to adequately protect them from the spread of COVID-19 had violated their constitutional rights. They also petitioned for release or transfer due to the allegedly subpar protections.

The petition called Licon-Vitale's response to the viral outbreak inept and the staff's treatment of sick inmates "inhumane." The inmates say the prison is violating pretrial detainees' and prisoners' Fifth and Eighth Amendment rights, which shield them from the deliberate indifference of prison officials amid a deadly pandemic.

At the preliminary injunction hearing June 2, attorneys from the Manhattan U.S. attorney's office, representing the warden, painted a starkly different version of events.

They said that the MCC was reeling from an early March incident in which a gun was found inside and that the warden was focused on security sweeps as COVID-19 began to hit the city in earnest.

Since then, they said, the prison has done its best in the face of changing guidance from the U.S. Bureau of Prisons. No inmate at MCC has died of COVID-19, the MCC's counsel Jean-David Barnea told Judge Ramos. Only 34 have either tested positive or displayed symptoms deemed to be caused by the virus, he said at the time.

According to the BOP website on Tuesday, there were zero active cases among inmates and five active cases among the prison staff.

Counsel for the inmates and representatives for the Bureau of Prisons declined to comment.

Representatives for the U.S. Attorney's Office for the Southern District of New York did not immediately respond on Tuesday to requests for comment.

The proposed class is represented by Arlo Devlin-Brown, Andrew A. Ruffino, Alan Vinegrad and Timothy C. Sprague of Covington & Burling LLP.

Marti Licon-Vitale is represented by Jean-David Barnea, Jessica Hu and Allison Rovner of the U.S. Attorney's Office for the Southern District of New York.

The case is Fernandez-Rodriguez et al. v. Licon-Vitale, case number 1:20-cv-03315, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Pete Brush and Frank G. Runyeon. Editing by Michael Watanabe.

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