By Frank G. Runyeon

Law360 (May 11, 2020, 9:25 PM EDT ) Vulnerable inmates at a Brooklyn prison opposed an attempt by the government to scrap their class petition for release from allegedly unsafe conditions during the pandemic, hitting back this weekend with a bid for sanctions over medical records that were destroyed.

Inmates held at the Metropolitan Detention Center rebuffed arguments from prison attorneys seeking to dismiss their lawsuit, arguing Friday that a writ of habeas corpus was the right method of challenging allegedly poor prison conditions before moving on Saturday to punish the government for destroying paper sick-call requests and hiring an unqualified expert witness.

In opposing the government's motion to dismiss the case, counsel for the inmates argued that the prison was confusing their demand for freedom from a facility they say poses a danger to their health with a request for reduced sentences.

"Petitioners here are not asking for amended sentences, they are asking for release, injunctive relief, and other appropriate relief to reduce the risk that they will be infected by COVID-19 because of respondent's failure to mitigate the spread of the virus at the MDC," the inmates' counsel said in their Friday memo.

Moreover, an executive agency like the Federal Bureau of Prisons cannot argue that the inmates' petition somehow infringes on its powers to grant compassionate release or home confinement — that is, after all, the legal logic undergirding the "Great Writ," the inmates said.

"At its core, the writ of habeas corpus is aimed at checking executive overreach," the inmates argued. "Whatever discretion respondent enjoys under the statutes and regulations that govern him, he is not free to act in violation of the Constitution."

But in this case, where inmates' release requests to BOP have been "futile," the agency's claim that the prisoners' lawsuit threatens the federal prison system's authority to grant reduced sentences "rings particularly hollow," the inmates said.

In response to the government's protest against a special master's enforcement of health care reforms at MDC, inmates' counsel argued that "appointing a special master is not only permissible, it makes good sense," offering that a correctional health expert could review each inmate's file and make recommendations that the court could accept or reject.

The inmates said the central question for the court is whether the prison's failure "to mitigate the risk of harm posed by COVID-19 to people incarcerated at the MDC constitutes deliberate indifference in violation of the Eighth and Fifth Amendment to the Constitution" and the U.S. Supreme Court's decision in Helling v. McKinney .

Inmates' counsel said they had clearly met the requirements to demonstrate a constitutional violation, arguing that "in fact, the allegations in the petition state a compelling case of an urgent medical emergency and deliberate indifference in responding to that emergency."

On Saturday, the inmates fired another salvo at the Brooklyn prison, seeking sanctions for what their expert Dr. Homer Venters dubbed the "very alarming practice" of what appeared to be the "intentional destruction of medical records."

MDC destroyed many weeks' worth of paper sick-call slips that prisoners used to request medical care, inmates' counsel noted, erasing evidence that would have helped them prove their case, including how many inmates reported COVID-19 symptoms, required attention, and were ignored by prison nurses.

The prison's medical director testified that it was common practice to process those requests and then "shed it." The only paper records available are four days of paper slips from the end of April, according to court filings.

While the prison also allows inmates to make requests via email, the lockdown measures in place since mid-March have reduced the time and ability of inmates to use computers, not to mention that very ill inmates would be less likely to leave their cells, the inmates argued.

Considering all that, the inmates requested that the judge forbid the prison from claiming it screened them for or identified those with COVID-19 symptoms, properly responded to sick-call requests, retained a tally of symptomatic inmates, or kept accurate medical records from the filing of the lawsuit until it stopped shredding sick-call requests.

In addition, the inmates slammed the government's health expert, Asma Tekbali, as a neophyte with limited professional understanding who is unqualified to provide an analysis of prison conditions she has never seen.

Tekbali graduated with her master's degree last year and has worked 10 months as an epidemiologist at a New York City hospital.

"Given her lack of experience, Ms. Tekbali is arguably unqualified to testify as an expert at all; she is certainly unqualified to testify on the vast majority of topics addressed in her report," inmates counsel noted in a Saturday brief.

The petitioners further pilloried the freshly minted disease specialist's report for often rehashing CDC and local health department websites and relying solely on "the MDC's aspirational policies and procedures," which are "not based in the reality of what is actually occurring at the MDC" to conclude that inmates at MDC have received proper care.

The epidemiologist "has no medical training or experience caring for patients," the inmates pointedly noted, and has "no background, training, or experience in correctional healthcare or management."

Therefore the court should disregard Tekbali's testimony to the extent it strays beyond what she knows, the inmates argued.

In reply briefs on Sunday, the prison restated its positions and touted its "indisputable record of success in controlling the spread of COVID-19."

Responding to the inmate counsel's "flippant" description of Tekbali, the government shot back that "her experience as an epidemiologist working on COVID-19 issues amount to all of the 'specialized knowledge' necessary to qualify her as an expert here," noting that her infection prevention decisions were currently being put into practice at a New York City hospital in the midst of the COVID-19 pandemic.

Counsel for the inmates and for the government declined to comment. Tekbali also declined to comment.

The inmates are represented by Alexander A. Reinert and Betsy R. Ginsberg of the 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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