Opinion
Civil Action No. 20-849(CKK)
01-26-2021
Edward BANKS, et al., Plaintiffs v. Quincy L. BOOTH, et al., Defendants
Jacob Kreilkamp, Pro Hac Vice, Munger, Tolles & Olson LLP, Los Angeles, CA, Lauckland Alexander Nicholas, Law Office of L.A. Nicholas, Arthur B. Spitzer, Scott Michelman, Michael Krevans Perloff, American Civil Liberties Union of the District of Columbia, Brendan B. Gants, Jeremy Kreisberg, Jonathan S. Meltzer, Rachel G. Miller-Ziegler, Munger, Tolles & Olson LLP, Jenna Marie Cobb, Steven D. Marcus, Jonathan W. Anderson, Public Defender Service for the District of Columbia, Washington, DC, for Plaintiffs. Andrew J. Saindon, Micah Ian Bluming, Pamela A. Disney, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.
Jacob Kreilkamp, Pro Hac Vice, Munger, Tolles & Olson LLP, Los Angeles, CA, Lauckland Alexander Nicholas, Law Office of L.A. Nicholas, Arthur B. Spitzer, Scott Michelman, Michael Krevans Perloff, American Civil Liberties Union of the District of Columbia, Brendan B. Gants, Jeremy Kreisberg, Jonathan S. Meltzer, Rachel G. Miller-Ziegler, Munger, Tolles & Olson LLP, Jenna Marie Cobb, Steven D. Marcus, Jonathan W. Anderson, Public Defender Service for the District of Columbia, Washington, DC, for Plaintiffs.
Andrew J. Saindon, Micah Ian Bluming, Pamela A. Disney, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, United States District Judge
Plaintiffs Edward Banks, D'Angelo Phillips, Keon Jackson, and Eric Smith ("Plaintiffs") bring this action on behalf of themselves and a putative class of similarly situated persons, alleging that Defendants Quincy Booth, Director of the District of Columbia Department of Corrections ("DOC") and Lennard Johnson, Warden of DOC ("Defendants") violated their constitutional rights under the Fifth and Eighth Amendments by failing to ensure safe conditions in the face of the COVID-19 pandemic.See Compl., ECF No. 1. On June 18, 2020, the Court granted in part Plaintiffs’ Amended Motion for a Preliminary Injunction, and ordered Defendants to implement certain infectious disease control and prevention measures, to ensure inmates’ timely access to medical care, and to provide access to confidential legal calls. On July 16, 2020, Defendants filed the present [105] Motion to Alter and Vacate the Court's Preliminary Injunction, which is opposed. Defendants contend that changed factual circumstances, intervening decisions of other courts, and legal errors in the Court's previous opinion support reconsideration of the preliminary injunctive relief granted to Plaintiffs.
Plaintiffs also seek injunctive relief or writs of habeas corpus to reduce the inmate population at the DOC facilities. See Compl. The Court did not order the release of any inmates at the preliminary injunction stage, and Defendants do not challenge that conclusion in the present Motion.
Upon consideration of the pleadings, the relevant legal authorities, reports of Amici Curiae , and the record as a whole, the Court DENIES Defendants’ Motion. Defendants have failed to demonstrate that justice requires reconsideration of the preliminary injunction.
The Court's consideration has focused on the following documents:
• Defendants’ Motion to Alter and Vacate the Court's Preliminary Injunction ("Defs.’ Mot."), ECF No. 105;
• Plaintiffs’ Opposition to Defendants’ Motion to Alter and Vacate the Preliminary Injunction ("Pls.’ Opp'n"), ECF No. 116;
• Defendants’ Reply in Support of Motion to Alter and Vacate the Court's Preliminary Injunction ("Defs.’ Reply"), ECF No. 119;
• Defendants’ Supplemental Brief ("Defs.’ Suppl. Br."), ECF No. 140; and
• Plaintiffs’ Supplemental Brief ("Pls.’ Suppl. Br."), ECF No. 141.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).
I. BACKGROUND
The Court previously recounted in detail the background of this case in its Memorandum Opinions granting in part and denying in part Plaintiffs’ Motion for a Temporary Restraining Order ("TRO Op."), ECF No. 51 and Plaintiffs’ Amended Motion for a Preliminary Injunction ("PI Op."), ECF No. 100. Accordingly, the Court shall limit its discussion to developments since the Court granted in part Plaintiffs’ Amended Motion for a Preliminary Injunction on June 18, 2020.
As with the previous proceedings in this case, hearings in this matter have been conducted telephonically due to the restrictions of the COVID-19 pandemic. See PI Op. at 2.
The Court's [99] Order granting in part Plaintiffs’ Amended Motion for Preliminary Injunction ("PI Order") directed Defendants to address deficiencies related to conditions of confinement, discussed in greater detail infra Part III(A). The Court ordered Defendants to provide updates about the steps being taken to address these deficiencies. See PI Order. Pursuant to the Court's PI Order, on June 29, 2020, Defendants filed a [101] Notice of Compliance with the Court's Preliminary Injunction ("Notice of Compliance"). Defendants indicated that there had been no positive tests of COVID-19 at DOC facilities since the Court issued its PI Order, and all residents who had previously been in isolation due to positive tests had returned to the general population. See Notice of Compliance at 1. Defendants also indicated that DOC had tested a sample of asymptomatic inmates, who all tested negative for COVID-19.Id. at 8–9. Defendants further provided the Court with updates about Defendants’ policies related to inmate access to medical care, social distancing, sanitation, conditions in isolation units, and access to confidential legal calls. See id. at 3–8.
Defendants initially reported that DOC had tested 150 asymptomatic residents, see Notice of Compliance at 9, but subsequently corrected that figure, indicating that only 87 inmates had been tested. See Errata, ECF No. 102.
Then, on July 16, 2020, Defendants filed the present [105] Motion to Alter and Vacate the Court's Preliminary Injunction, in which Defendants argue that a material change in the conditions at DOC facilities renders continued injunctive relief unnecessary and improper. Defs.’ Mot. at 9–11. Defendants contend further that the Court erroneously concluded in its PI Opinion that Plaintiffs were likely to succeed on the merits of their claims that Defendants had "recklessly disregarded" risks related to COVID-19. Id. at 11. Rather, Defendants argue that the policies they implemented had contained the spread of COVID-19, and that any imperfect enforcement of those policies does not amount to "deliberate indifference." See id. at 12–13.
On the same date, Defendants filed a Notice of Appeal, appealing the Court's PI Order to the U.S. Court of Appeals. See Defs.’ Notice of Appeal, ECF No. 106. The Court of Appeals, on its own motion, held in abeyance Defendants’ notice of appeal and requested that this Court "notify [the Court of Appeals] promptly upon conclusion of its proceedings." See Order, Banks et al. v. Booth et al. , No. 20-5216 (D.C. Cir. July 22, 2020).
Plaintiffs oppose Defendants’ motion, arguing that Defendants are "ask[ing] the Court to fold up an umbrella in the middle of a rainstorm." Pls.’ Opp'n at 1. Plaintiffs note that—subsequent to Defendants’ filing of their Motion to Alter and Vacate—Defendants reported positive COVID-19 tests. Id. at 2. Plaintiffs further submitted affidavits by DOC staff and inmates demonstrating "continued failures to implement protocols." Id. ; see Pls.’ Opp'n Ex. A, Bess Decl.; Pls.’ Opp'n Ex. C, Taylor Decl. Plaintiffs requested that the Court direct amici curiae Grace M. Lopes and Mark Jordan ("Amici") to continue monitoring Defendants’ compliance with the PI Order. Pls.’ Opp'n at 18.
On September 16, 2020, the Court ordered the continued appointment of Amici to review and report on Defendants’ compliance. See Order Appointing Amicus, ECF. No. 125. The Court noted that "Defendants contend that they have implemented all safety protocols, thus creating a factual dispute with Plaintiffs as to the conditions at Defendants’ facilities." Id. at 1. The Court requested that Amici "provide the Court with information as to Defendants’ compliance with the Court's preliminary injunction." Id.
The Court twice amended its Order for Amici Curiae to clarify the timing of inspections of DOC facilities and to modify the deadlines for Amici's oral and written reports. See ECF Nos. 126, 129. The Court also granted a consent motion to extend the time for Amici to submit a written report in light of issues raised during the Amici's oral report on November 9, 2020. See Consent Motion for Extension of Time, ECF No. 132; Order, ECF No. 133.
On November 9, 2020, the Court held a telephone conference during which Amici presented their preliminary findings regarding Defendants’ compliance with the preliminary injunction. Both parties and the Court asked questions—including some requesting Amici to provide additional information in their subsequent written report. A court reporter was present, and a transcript of the hearing is on the docket. See Attachment A, Hr'g Tr. 11/9/20, ECF No. 131.
On December 11, 2020, Amici submitted a written report. The Court incorporates that report into this Memorandum Opinion. See Attachment B, Report Submitted by Amicus Curiae Pursuant to September 16, 2020 Order ("Amici Report"), ECF No. 138. The Court has excerpted portions of the Amici Report in this Memorandum Opinion, focusing on the issues which are most relevant to the resolution of Defendants’ pending motion.
As explained in their report, Amici reviewed records from the DOC facilities, conducted telephonic and in-person interviews with members of the DOC staff and approximately 80 inmates, and conducted unannounced and unescorted site visits on multiple shifts on October 22, 23, 29, November 13, and December 2, 2020 at the Central Detention Facility ("CDF") and on October 27 and November 2, 2020 at the Correctional Treatment Facility ("CTF"). Attachment B, at 3–4. Amici reported to the Court that Defendants cooperated in providing necessary materials and access to the facilities, staff, and inmates during their visits. Attachment A, at 8:17–24.
Upon Plaintiffs’ request, and with the Court's leave, see Pls.’ Mot. for Leave to File Suppl. Br., ECF No. 135; Dec. 2, 2020 Minute Order, the parties submitted supplemental briefs on December 18, 2020 to bring to the Court's attention any additional facts or developments since the parties’ earlier briefing on Defendants’ Motion.
II. LEGAL STANDARD
Defendants move for relief under Federal Rules of Civil Procedure 54(b), 59(e), and 60(b)(5). Defs.’ Mot. at 7–9. Plaintiffs argue that Rule 54(b) is the only appropriate standard. Pls.’ Opp'n at 3. For the reasons set forth below, the Court concludes that Defendants have not satisfied the standard for reconsideration under Rule 54(b) —the standard affording the Court most flexibility. SeeShvartser v. Lekser , 330 F. Supp. 3d 356, 360 (D.D.C. 2018) ("[O]ut of an abundance of caution ... the Court will apply the less demanding standard of Federal Rule of Civil Procedure 54(b), which governs the reconsideration of interlocutory decisions." (internal citation omitted)); Cobell v. Norton , 224 F.R.D. 266, 272 (D.D.C. 2004) ("[C]ourts have more flexibility in applying Rule 54(b) than in determining whether reconsideration is appropriate under Rules 59(e) and 60(b)." (internal citation and quotation marks omitted)). Accordingly, the Court shall not separately evaluate whether Defendants are entitled to relief based on what appear to be the higher standards associated with Rules 59(e) and Rule 60(b)(5).
However, because courts in this jurisdiction have reached different conclusions as to whether Rule 54(b) or Rule 59(e) governs a motion seeking reconsideration of an order granting or denying preliminary injunctive relief, the Court shall briefly discuss both standards.SeeN.S. v. Hughes , 2020 WL 4260739, at *1 (D.D.C. July 24, 2020) (applying Rule 59(e) ); but seeDunlap v. Presidential Advisory Comm'n on Election Integrity , 319 F. Supp. 3d 70, 80–81, 84 (D.D.C. 2018) (applying Rule 54(b) ); Shvartser , 330 F. Supp. 3d at 360–61 (same). The D.C. Circuit does not appear to have ruled directly on which standard applies. SeeN.S. , 2020 WL 4260739, at *1. Rule 54(b) allows the Court to revise "any order or other decision" that "adjudicates fewer than all the claims ... at any time before the entry of a judgment adjudicating all the claims[.]" Fed. R. Civ. P. 54(b). Rule 59(e) permits a party to move to "alter or amend a judgment ... no later than 28 days after the entry of the judgment." Fed. R. Civ. P. 59(e).
Neither party has identified any cases in this jurisdiction analyzing a motion for reconsideration of a preliminary injunction under Rule 60(b). To the contrary, several cases reason that Rule 60(b) does not apply to reconsideration of preliminary injunctive relief. See, e.g.,Dunlap , 319 F. Supp. 3d at 84–85 ; Cobell , 224 F.R.D. at 271.
The Court has broad discretion to grant relief under either rule, though "the Court has more discretion to grant a motion brought under Rule 54(b)." N.S. , 2020 WL 4260739, at *1 ; see alsoCobell , 224 F.R.D. at 272. "[T]his jurisdiction has established that reconsideration [under Rule 54(b) ] is appropriate ‘as justice requires. ’ " Lyles v. District of Columbia , 65 F. Supp. 3d 181, 188 (D.D.C. 2014) (emphasis added) (quoting Cobell v. Norton , 355 F. Supp. 2d 531, 540 (D.D.C. 2005) ). In general, a court will grant a Rule 54(b) motion for reconsideration of an interlocutory order "only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order." Dunlap , 319 F. Supp. 3d at 81 (internal citations and quotation marks omitted). "Justice [also] may require reconsideration ‘where a controlling or significant change in the ... facts has occurred since the submission of the issue to the court.’ " McLaughlin v. Holder , 864 F. Supp. 2d 134, 141 (D.D.C. 2012) (quoting Ficken v. Golden , 696 F. Supp. 2d 21, 35 (D.D.C. 2010) ). The proponent of reconsideration carries the burden of proving that "some harm, legal or at least tangible, would flow from a denial of reconsideration." United States v. Dynamic Visions, Inc. , 321 F.R.D. 14, 17 (D.D.C. 2017) (quoting Cobell , 355 F. Supp. 2d at 540 ). "In order for justice to require reconsideration, logically, it must be the case that, some sort of ‘injustice’ will result if reconsideration is refused." Id. (quoting Cobell , 355 F. Supp. 2d at 540 ).
Although similar considerations guide a Rule 59(e) analysis, motions under Rule 59(e) are "disfavored" and "the moving party bears the burden of establishing ‘extraordinary circumstances ’ warranting relief from a final judgment." United States v. Burwell , 253 F. Supp. 3d 283, 285 (D.D.C. 2017) (emphasis added) (quoting Niedermeier v. Office of Baucus , 153 F. Supp. 2d 23, 28 (D.D.C. 2001) ); see alsoFirestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996) ( Rule 59(e) motions are "discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." (internal quotation marks omitted)).
There are limits to the Court's discretion under either rule, as "once the parties have ‘battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.’ " Hispanic Affairs Project v. Perez , 319 F.R.D. 3, 6 (D.D.C. 2016) (quoting Wannall v. Honeywell Int'l, Inc. , 292 F.R.D. 26, 30–31 (D.D.C. 2013), aff'd sub nom.Wannall v. Honeywell, Inc. , 775 F.3d 425 (D.C. Cir. 2014) ). A motion under either Rule 54(b) or Rule 59(e) is not "simply an opportunity to reargue facts and theories upon which a court has already ruled." New York v. United States , 880 F. Supp. 37, 38 (D.D.C. 1995) ; see alsoMessina v. Krakower , 439 F.3d 755, 759 (D.C. Cir. 2006) ( Rule 59(e) motions may not simply "rely on the same arguments ... originally made" by the moving party); Shvartser , 330 F. Supp. 3d at 360 (addressing Rule 54(b) motion). Nor is a motion for reconsideration an avenue to "present[ ] theories or arguments that could have been advanced earlier." Shvartser , 330 F. Supp. 3d at 360 ; see alsoOceana, Inc. v. Evans , 389 F. Supp. 2d 4, 8 (D.D.C. 2005) (" Rule 59 was not intended to allow a second bite at the apple.")
III. DISCUSSION
A. Justice Does Not Require Reconsideration of the Preliminary Injunction Based on Changed Factual Circumstances
Defendants’ primary argument is that changed factual circumstances render continued injunctive relief improper. Defs.’ Mot. at 9. Courts in this jurisdiction have noted that justice "may require reconsideration" where there is a "fundamental," McLaughlin , 864 F. Supp. 2d at 141, or "controlling or significant" change in facts. Ficken , 696 F. Supp. 2d at 35 (quoting Cobell , 224 F.R.D. at 272 ). Defendants contend that their efforts to address the risks posed by COVID-19 "have effectively eliminated the risk of COVID-19 infection facing its residents." Defs.’ Suppl. Br. at 1–2. Defendants argue, therefore, that a material change in the facts renders continued injunctive relief inequitable. Defs.’ Mot. at 10–11. In response, Plaintiffs cite continued deficiencies in Defendants’ efforts to implement and enforce the requirements of the Court's PI Order. Pls.’ Opp'n at 6–11. Plaintiffs also argue that Defendants have failed to demonstrate any harm caused by the Court's injunction. Id. at 4–6. For the reasons below, the Court concludes that ongoing systemic deficiencies undermine Defendants’ claim of "significant or controlling" changed factual circumstances.
In its Memorandum Opinions granting in part Plaintiffs’ TRO and granting in part Plaintiffs’ motion for a preliminary injunction, the Court thoroughly recounted the conditions at DOC facilities as they stood at each juncture. See TRO Op. 12–22; PI Op. 14–26. Based on these factual findings, the Court specifically noted "that the relief which will be granted ... is narrowly tailored and does not impose an undue burden on Defendants." PI Op. at 36. The Court will not recount those findings in full, but incorporates its findings from those Memorandum Opinions.
The Court's focus here is whether "justice requires" reconsideration based on a "controlling or significant change in the facts" since the Court's PI Order. McLaughlin , 864 F. Supp. 2d at 141. This inquiry does not compel the Court to undertake a "fresh analysis of whether the Court should grant a preliminary injunction under the standard four-factor test that this Court previously applied." Dunlap , 319 F. Supp. 3d at 85. Rather, the Court considers whether relevant factual developments are "controlling or significant for purposes of compelling reconsideration of whether Plaintiff[s] satisf[y] the standards for preliminary relief." Id.
Before addressing the relevant factual developments regarding each requirement of the Court's PI Order, the Court notes that much of Defendants’ argument in support of vacating or amending the preliminary injunction (as it was in opposing injunctive relief at the outset) is based on steps Defendants have taken subsequent to the Court's TRO and PI Orders. See PI Op. at 15, 23. The Court appreciates Defendants’ efforts to improve conditions at DOC facilities, and in no way seeks to impugn or discourage continued good faith efforts. But, as the Court noted in its earlier Opinion, "Defendants cannot claim that the need for an injunction is now moot because the [Defendants have] ‘ceased [their] wrongful conduct.’ " PI Op. at 15–16 (citing Costa v. Bazron , 464 F.Supp.3d at 141 (D.D.C. 2020) (quoting Taylor v. Resolution Trust Corp. , 56 F.3d 1497 (D.C. Cir. 1995) )). Similarly, the Court finds it difficult to conclude that "justice requires" the Court to vacate the preliminary injunction against Defendants based on purported factual changes resulting from steps taken to address deficiencies noted in the Court's PI Opinion—especially where, as discussed below, Defendants’ compliance with the preliminary injunction is incomplete. As the Court previously noted, the aim of injunctive relief is to "prevent future violations," Costa , 464 F.Supp.3d at 142 (internal citations and quotation marks omitted), and for that reasons its power to grant injunctive relief "survives the discontinuance of the illegal conduct." U.S. Dep't of Justice v. Daniel Chapter One , 89 F. Supp. 3d 132, 143 (D.D.C. 2015), aff'd , 650 F. App'x 20 (D.C. Cir. 2016).
Several months have passed since Defendants first sought reconsideration of the Court's preliminary injunction, and the Court now has the benefit of the Amici Report and the parties’ supplemental briefs. The Court shall discuss the conditions of the facilities in response to the Court's PI Order. Upon careful review of the factual circumstances presented by both parties and Amici, the Court concludes that Defendants have not established a significant or controlling change in the factual circumstance requiring reconsideration of the preliminary injunction.
1. Medical Care
The Court begins by assessing Defendants’ efforts in supplying general population inmates with adequate medical care. In its PI Opinion, the Court identified deficiencies in Defendants’ sick call process, citing both Amici's observation of "significant barriers to access to health care," as well as declarations of inmates detailing the unavailability of sick call forms on their housing units. See PI Op. at 16–17. Based on these findings, the Court ordered Defendants to implement a medical care system for general population housing units that "ensures inmates receive attention from a medical provider within 24 hours of reporting health issues." Id. at 38. If Defendants continued to rely on the use of sick call slips, Defendants were to "ensure that said slips are collected at regular intervals." Id.
Amici describe in detail Defendants’ revised sick call process, implemented as of June 23, 2020 (after the Court's PI Order): inmates obtain sick call request forms from correctional officers and deposit completed forms in secure collection boxes maintained on each housing unit. Attachment B, at 12–16. The forms are collected by medical staff twice a day, logged, and triaged for urgency. Id. at 14–15. Amici observed that the "use of the revised forms is widespread," and "[i]n contrast to previous site visits, sick call request forms were available on most of the housing units [Amici] visited before the November 9, 2020 hearing." Id. at 13 n.31, 14. Amici further noted that inmates "generally had positive impressions of the sick call process and asserted that they expected that if they submitted a sick call request form, they would be seen by a medical provider timely." Id. at 16. Sick call forms were available on all except one of the housing units visited by Amici prior to the November 9, 2020 hearing. Id. at 14. When Amici returned to the facilities after the hearing, sick call forms were available on the one housing unit that had previously lacked them. Id.
To assess Defendants’ compliance with the Court's requirement that Defendants ensure that inmates receive medical care within 24 hours of requesting it, Amici reviewed a random sample of sick call requests from both the CDF and CTF.Id. at 16–18. Of the inmate sick call requests reviewed, 71% of CDF inmates and 56% of CTF inmates were seen by a medical provider within one day of submitting their sick call forms.Id. at 18–20. Defendants contend that Amici's small sample size presents an incomplete picture of its sick call response, noting that Amici reviewed only a small portion of requests for medical care and omitted from their Report discussion of a "robust audit procedure" implemented by DOC officials to monitor the sick call process. Defs.’ Suppl. Br. at 3–4 (citing Defs.’ Suppl. Br. Ex. A, Jordan Decl. ¶ 9). Defendants further contend that the Amici Report fails to address other reasons why an inmate may not be seen by a medical provider within 24 hours. Id. at 3.
Amici also assessed the timeliness of DOC's responses to requests for dental care and mental health care. Plaintiffs and Defendants both acknowledge that these requests are less likely to be related to COVID-19. See Pls.’ Suppl. Mem. at 3 n.3; Defs.’ Suppl. Mem. at 2. Accordingly, the Court shall focus on Amici's findings with respect to the timing of responses to requests for medical care.
Although the PI Order directs Defendants to ensure inmates receive medical attention within 24 hours, the sick call forms only provide a space for inmates to enter the date of their request, not the time. Attachment B, at 17. Accordingly, Amici analyzed each sample based on the days elapsed between the submission of the form and the time inmates received medical attention. Id. Amici note additional discrepancies with the forms, including some that contained notations by medical staff for "wrong date"—the reason for which was not evident to Amici in every case. Id. at 17–18. Amici further note that for the month of July 2020, they received 179 fewer sick call request forms than were indicated on the spreadsheet tallying the number of forms received. Id. at 16. Amici were "not able to reconcile this discrepancy." Id.
The Court appreciates Defendants’ revisions to the sick call process and the improved availability of sick call forms. The Court, however, finds that Defendants have not demonstrated a significant change in the facts warranting reconsideration of the preliminary injunction—especially taking into consideration Amici's finding that "inmates are not consistently seen by a medical provider within 24 hours of reporting health issues in a significant percentage of cases." Attachment B, at 12.
2. Social Distancing
In granting the preliminary injunction, the Court also cited Amici's finding that social distancing in DOC facilities "certainly is not prevalent, certainly not during our visits." PI Op. at 18 (internal citation omitted). Amici attributed this issue, in part, to insufficient staffing on the housing units. Id. The Court noted that although Defendants developed policies and educational materials to address social distancing, their steps to implement and enforce such policies were insufficient and delayed. Id. at 19–20. Accordingly, the Court ordered Defendants to comply with District of Columbia and CDC regulations on distancing in the DOC facilities and to "address challenges which have prevented the implementation of social distancing including but not limited to lack of education and staffing shortages." Id. at 38; PI Order.
Amici reported continued inconsistencies in social distancing practices and enforcement. Attachment B, at 24. Amici noted, for example, that they "often" observed inmates who were out of their cells congregating in small groups, "sometimes while not wearing a mask properly covering their noses and mouths." Id. And despite limits on the number of inmates allowed out of their cells at a given time, Amici observed inmates out of their cells "communicat[ing] ... often while in close proximity" with those in their cells, "while not wearing a mask properly[.]" Id. Amici also observed staff members "at times" failing to wear "required masks and/or face shields on housing units and not maintaining social distance among themselves and when interacting with inmates and other non-correctional DOC staff." Id. at 25. Surveillance teams monitor compliance with social distancing by live video feeds and are expected to report failures to enforce social distancing policies. Id. But some of these surveillance personnel reported to Amici "frequent" violations of COVID-19 mitigation policies—"as many as 100 examples per shift." Id. Yet, Defendants reported to Amici only 347 disciplinary actions against correctional officers taken over the course of months (April through November 2020) for violations of COVID-19 mitigation policies. Id. Plaintiffs also submitted evidence of inadequate enforcement of social distancing, including a declaration from a DOC officer who observed groups of inmates congregating in a small waiting room, as well as "mixed groups" from general population units and quarantine being escorted together in an elevator. Pls.’ Opp'n at 8 (citing Pls.’ Opp'n Ex. A, Bess Decl. ¶¶ 14–15, 17–18). Amici further reported that the number of staff available to work as of December 2020 remains "virtually unchanged" from mid-May 2020. Attachment B, at 10, 26. As such, the many deficiencies in social distancing practices and enforcement identified in the Court's previous orders remain.
In arguing that they have made progress in enforcing social distancing, Defendants identify many of the same policies and practices they noted in opposing preliminary injunctive relief. See, e.g. , Defs.’ Mot. at 5 ("[a]s previously noted ..."; "a surveillance team continues to monitor"; "signs remain posted;"; "DOC continues to provide ..." (emphases added)); see also PI Op. at 18–19. For example, Defendants indicate that they require correctional officers to document compliance, require inmates and staff to wear PPE, remind inmates to socially distance, have signs posted throughout the facilities, and have provided staff and inmates with educational materials about social distancing. Defs.’ Mot. at 5. Defendants also reported to Amici that they had begun to distribute electronic tablets which include educational content about COVID-19. Attachment B, at 26. But Defendants claim that "practical difficulties" hamper enforcement of these policies and "continuing challenges in recruiting and hiring correctional officers" hinder efforts to increase staffing. Defs.’ Suppl. Br. at 4.
As the Court noted in granting Plaintiffs’ preliminary injunction, "better policies mean little if they are not correctly implemented in practice." PI Op. at 19 (citing Daskalea v. District of Columbia , 227 F.3d 433, 442 (D.C. Cir. 2000) ). The Amici Report—together with the evidence offered by Plaintiffs—demonstrate ongoing deficiencies with respect to Defendants’ enforcement of social distancing. Accordingly, the Court finds that justice does not require reconsideration of the preliminary injunction's social distancing requirements, as Defendants have fallen short in complying with the Court's PI Order in this area.
3. Environmental Health and Safety
The Court next examines the status of sanitation efforts at DOC facilities. In its PI Order, the Court noted that Defendants had made some progress since the TRO Order in ensuring adequate sanitation, but also noted inmates’ lack of regular access to appropriate cleaning supplies. PI Op. at 20–21. The Court ordered Defendants to continue their contracts with an outside health and safety vendor and professional cleaning vendors to provide cleaning services (including to common areas); to continue their efforts to hire a registered sanitarian; to ensure inmates have access to necessary materials to clean their cells; and to ensure that inmates and DOC staff are informed of and trained on proper use of mixing and preparing cleaning solution. PI Op. at 38–39; PI Order.
Amici reported that Defendants have made progress in ensuring adequate sanitation of both the CDF and CTF. During their site visits, Amici observed that "common areas and public spaces" appeared "noticeably cleaner than amici observed during previous visits at both the CDF and CTF." Attachment B, at 30–31. Defendants have continued their contracts with outside professional cleaning vendors to provide cleaning services through February 2021. Id. at 30. In addition, Amici reported "significant improvement in inmate access to appropriate materials to clean their cells." Id. at 33. Amici further noted that inmates and staff reported consistent access to clean microfiber cloths and peroxide cleaning solution. Id. These are marked improvements since the Court's PI Order, in which the Court noted that appropriate sanitation was a "continuing issue" at both facilities, and especially deficient at the CDF. PI Op. at 21 (internal citation omitted).
Defendants’ efforts to hire a registered sanitarian have proven less successful. Defendants contracted with an outside vendor as of May 18, 2020 to provide services related to environmental health and safety. PI Op. at 20. At the same time, Defendants indicated that they had received approval to solicit applications for an in-house sanitarian. Id. The contract with the environmental health and safety vendor expired at the end of October 2020, and DOC initially did not renew it, intending instead to rely on a new internal hire. Attachment A, at 45:5–8; Attachment B, at 29. At the hearing on November 9, 2020, Amici explained that Defendants had posted a vacancy notice for a "sanitarian inspection specialist," the qualifications for which would not meet the eligibility criteria to sit for the registered sanitarian exam by the pertinent credentialing body. Attachment A, at 38:2–12; see also Attachment B, at 31. After posting the vacancy announcement six times, DOC did not receive applications from any registered sanitarians, and instead hired an applicant with no background in environmental health and safety. Attachment A, at 38:2–19. The Court questioned whether the qualifications provided in the job vacancy posting may have discouraged registered sanitarians from applying for the position. Id. at 41:6–13; 42:13–43:2. After this issue was raised at the hearing, as of December 11, 2020, Defendants indicated to Amici that they re-entered a three-month contract with the health and safety vendor whose contract expired on October 31, 2020, with three one-month options, and "renewed" their efforts to hire a registered sanitarian. Attachment B, at 29–30.
Although Defendants have complied with the Court's order to continue their contracts with professional cleaning services, this is not necessarily a "change" in factual circumstances since the Court's PI's Opinion, as Defendants had those contracts in place at the time of the PI briefing. See Defs.’ Opp'n to Pls.’ PI Mot. at 14–15 (internal citations omitted). And Defendants appear to be in a similar position with respect to hiring a registered sanitarian as they were at the time the Court issued its preliminary injunction. Accordingly, there are no "significant or controlling" changed factual circumstances supporting reconsideration of the health and environmental safety requirements of the preliminary injunction.
4. Conditions in Isolation Units
Next, the Court considers conditions in isolation units. The Court previously noted deficiencies with respect to access to legal and personal phone calls, regular showers, and consistent linen exchanges. PI Op. at 22–23. Although the Court credited Defendants’ progress in making isolation units less punitive, the Court observed that such progress had been made only subsequent to the Court's TRO Order and "there remains progress to be made." Id. at 23. Accordingly, the Court ordered Defendants to make conditions in the isolation unit non-punitive by providing reliable access to telephone calls, daily showers, and clean clothing and linens. Id. at 39; PI Order.
In their more recent review, Amici found that inmates on isolation status are "able to make personal telephone calls, take daily showers, and receive clean linens." Attachment B, at 34. Amici were unable to make general findings about access to confidential legal calls for inmates on isolation status, but noted that one inmate who had been on isolation status reported that he was only able to speak with his attorney in a case manager's officer while a correctional officer was present and therefore the call was not confidential. Attachment B, at 35 n.80.
The Court appreciates Defendants’ efforts to ensure that inmates in isolation have better access to personal hygiene necessities and the ability to make personal phone calls. But once again, the Court notes that many these improvements appear to be in response to the issues raised in earlier TRO and PI proceedings, and it does not appear that inmates on isolation units have access to confidential legal calls. The Court, therefore, does not find any need to eliminate this requirement of the PI to guard against future violations.
5. Confidential Legal Calls
The Court next addresses general population inmates’ access to confidential legal calls. In its PI Order, the Court required Defendants to "ensure that all inmates have access to confidential, unmonitored legal calls of a duration sufficient to discuss legal matters." PI Op. at 3 (emphasis added); PI Order. Although the Court noted that Defendants had made efforts to obtain new technology to ensure inmates’ access to confidential legal calls, it also concluded that many of these new processes had not yet been implemented. PI Op. at 25.
Amici noted that DOC has made "substantial investment" in new technologies to address challenges in attorney-client communications. Attachment B, at 39. Amici reported that legal calls take place in one of three settings: (1) in the case manager's office with the case manager present; (2) in the inmate's cell using a cell phone; or (3) in an empty cell on the housing unit using a cell phone. Attachment B, at 37, 38. Calls from the CDF may also take place in an office in the facility's case management suite. Id. Amici noted that "most of the inmates and case managers interviewed confirmed that the case manager is present" for calls conducted in a case manager's office, which is "consistent" with Amici's observations. Id. at 37. Such calls, then, are not truly "confidential." Calls made by cell phone from individual cells may afford "inmates the opportunity to speak in a confidential setting with their attorneys," though Amici noted that some inmates reported that they could be overhead by inmates in neighboring cells. Id. at 37 n.89. Attorneys may also request to speak with their clients by videoconference, which are conducted "under conditions that promote the confidentiality of attorney-client communications." Id. at 37–38. Inmates who request calls with their attorneys continue to experience "substantial delays" receiving responses to their requests. Id. at 38. In addition to the issues noted by Amici, Plaintiffs cited evidence of ongoing issues with legal calls. For example, calls placed from cell phone may be disrupted because of poor reception or excessive noise. Pls.’ Suppl. Br. at 7 (citing Defs.’ Mot. Ex. E, Williams Decl. ¶ 6).
Defendants argue that Amici's findings do "not fully capture the scope of DOC's undertaking and the dramatic shift in the way DOC facilitates legal calls to meet the challenges posed by the pandemic," indicating that DOC has "facilitated over 24,357 attorney-client contacts using technology and procedures that did not exist in DOC facilities only nine months ago." Defs.’ Suppl. Br. at 6 (citing Defs.’ Suppl. Br. Ex. B, Williams Decl. ¶ 5). Defendants note, for example, that some inmates have been able to use cell phones for legal calls since June 15, 2020. Id. Defendants also indicate that inmates may use phone banks located on each housing unit to call their attorneys—but conceded that "full confidentiality is not possible for inmates using the phone banks." Id. at 7, 8 n.6. Although the Court credits Defendants for implementing new practices, ongoing shortcomings in ensuring access to confidential legal calls counsel against relieving Defendants of this condition of the injunction.
6. Testing
At the time they filed their present Motion, Defendants relied heavily on the lack of positive COVID-19 tests for a period of thirty days as evidence of changed factual circumstances. See Defs.’ Mot. at 1–2, 9–10. Defendants claimed this positive development demonstrated that their policies had "halted" the spread of COVID-19. Defs.’ Mot. at 9. Since then, at least fifteen positive COVID-19 cases have been reported to the Court. See Attachment B, at 34; Defs.’ Suppl. Br. at 2 n.2. The Court makes note of this development not to impugn Defendants—as all except one case was discovered upon intake testing —but rather to highlight the need for ongoing vigilance in the face of a swift and dangerous virus that has claimed more than 400,000 American lives.
Amici reported that the only positive case for the period July–November 2020 not involving a newly admitted inmate was discovered after a new intake was placed on a mental health housing unit (rather than an intake housing unit). Attachment B, at 41. After the newly-admitted inmate tested positive, the entire mental health unit was tested, and one inmate was confirmed positive for COVID-19. Id.
See, e.g. , Reis Thebault & Lateshia Beachum, Coronavirus updates: U.S. surpasses 400,000 deaths as Biden invites the country to mourn , Wash. Post (Jan. 19, 2021), https://www.washington_post.com/nation/2021/01/19/covid-coronavirus-updates/.
In Defendants’ briefing on the preliminary injunction, Defendants noted that "DOC has broadened its protocols to test all new intakes and every inmate transferred to another facility. " Defs.’ Opp'n to Pls.’ Am. Mot. for PI at 2, ECF No. 82 (emphasis added). Defendants noted specifically that DOC "now tests any resident to be transferred to Saint Elizabeths Hospital or to a federal correctional facility." Id. at 8–9 (emphasis added) (citing id. Ex. B, Jordan Suppl. Decl. ¶ 11). Defendants also reported that DOC tests all new residents upon intake, cellmates of any resident who recently tested positive, and any inmate who displays symptoms of COVID-19. Id. at 8–9. Accordingly, the Court ordered Defendants to continue these protocols and update the Court about any changes or new practices. See PI Order.
Amici reported that Defendants have been performing tests on all new intakes—each new intake receives both a rapid COVID-19 test and a lab test simultaneously. Attachment B, at 40. New intakes then remain housed on an "intake unit" for seven days, at which point another lab test is performed. Id. If a new inmate tests positive, that person is then transferred to housing units designated for "isolation." Id. Except for one example, see note 10, Defendants’ positive cases of COVID-19 have been found upon intake testing.
Amici also reviewed Defendants’ testing of inmates who report COVID-19 symptoms. Amici analyzed a random sample of 36 sick call request forms indicating symptoms consistent with COVID-19. Id. at 44. Amici found that only fourteen of those inmates were "tested for COVID-19 at some point after they submitted their sick call requests." Id. at 44. And of those fourteen tested, eight tests were administered between 20 and 52 days after the sick call request forms were submitted. Id. Defendants’ inconsistent and incomplete testing of inmates reporting symptoms of COVID-19 does not compel the Court to relieve Defendants from continued injunctive relief on this point.
Despite Defendants’ representations that they tested "any" inmate transferred to St. Elizabeths, Amici reported that, prior to the November 9, 2020 hearing, inmates being transferred to St. Elizabeths were only tested if "Unity staff [were] notified in advance of the transfer." Id. at 42. In most of the 24 cases between June 18 and October 31, 2020 in which inmates were transferred to Saint Elizabeths, "testing was not conducted in close temporal proximity to the transfer." Id. In eleven cases, for example, inmates were tested between 24 and 128 days prior to their transfer. Id. Two inmates were not tested at all prior to their transfer. Id. at 42. Defendants note in their supplemental brief that "in early November [2020], DOC and St. Elizabeths enhanced the transfer notification system, and residents have been tested within 48 hours of the transfer to St. Elizabeths." Defs.’ Suppl. Mem. at 10. Similarly, Unity reported to Amici that they do not test inmates being transferred to federal facilities as a matter of course. Id. at 42–43. Rather, a test would only be conducted upon request (for example, if the receiving federal facility requires it). Amici found that at least twelve inmates who had been released to federal custody were not tested before their transfer. Id. at 43. These results contradict Defendants’ representations in their prior briefing and fall short of compliance with the Court's preliminary injunction order. Justice does not require reconsideration of an order—based on Defendants’ own representations of their protocols—with which Defendants have failed to comply.
Upon review of the factual developments since the Court entered a preliminary injunction, the Court finds more than mere isolated examples of incomplete compliance with the Court's preliminary injunction. To be sure, Defendants have made some positive improvements. But ongoing deficiencies with respect to each component of the preliminary injunction undermine Defendants’ claim that a significant or controlling change in factual circumstances requires reconsideration of the Court's order.
B. Purported "Legal Errors" Do Not Compel Reconsideration
Defendants next argue that legal errors in the Court's PI Opinion compel reconsideration of the preliminary injunctive relief granted to Plaintiffs. Although "clear error" in a court's previous order may justify reconsideration, neither a Rule 54(b) nor a Rule 59(e) motion is an invitation for the Court to re-weigh the evidence considered in making its decision. SeeDunlap , 319 F. Supp. 3d at 81 ; Zeigler v. Potter , 555 F. Supp. 2d 126, 129 (D.D.C. 2008). Nor does either type of motion permit a "losing party" to "raise new issues that could have been raised previously." Kattan by Thomas v. District of Columbia , 995 F.2d 274, 276 (D.C. Cir. 1993) ; see alsoMcLaughlin , 864 F. Supp. 2d at 141 ("A court may properly exercise its discretion by denying a motion for reconsideration [under Rule 54(b) ] that ‘raise[s] ... arguments for reconsideration the court ha[s] ... already rejected on the merits.’ "(quoting Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc. , 630 F.3d 217, 227 (D.C. Cir. 2011) )).
First, Defendants argue that the Court incorrectly concluded that Plaintiffs are likely to succeed on the merits of their constitutional claims based on an "unduly high legal standard." Defs.’ Mot. at 11–14. Defendants contend that the Court "focused its analysis of reckless disregard on the wrong evidence" by identifying only "ongoing inadequacies" and "discounting the evidence that DOC had been continually addressing and improving conditions at its facilities." Id. at 11–12. This is precisely the attempt to "reargue facts and theories upon which the court has already ruled" which the Court may not properly consider under Rule 54 (or Rule 59 ). Ali v. Carnegie Inst. of Wash. , 309 F.R.D. 77, 81 (D.D.C. 2015). And in any event, the Court did take into consideration policies that Defendants had adopted subsequent to the TRO Order, and still concluded that many of these policies were "not correctly implemented in practice." PI Op. at 14, 19, 20. Moreover, the Court discussed at length systemic deficiencies that continued to persist despite Defendants’ notice of them from earlier TRO proceedings. Id. at 16–26. The Court's finding that Plaintiffs were likely to succeed in showing deliberate indifference was based on Defendants’ failure to "take comprehensive, timely, and proper steps to stem the spread of the virus." Id. at 26. The Court shall not re-weigh the same evidence considered in granting partial preliminary injunctive relief.
Defendants next argue that the Court erred in finding that Plaintiffs were likely to succeed in establishing that they had exhausted their administrative remedies. Defendants cite a grievance policy implemented in January 2020, which authorized residents to "proceed to the next step in the process if they fail to receive a timely or unsatisfactory response." Defs.’ Mot. at 14. In their earlier briefing on this issue, Defendants cited to a DOC grievance policy from January 2018. See Defs.’ Opp'n to Pls.’ PI Mot. at 35–36. Defendants raise this January 2020 policy for the first time in this litigation in their motion to reconsider. Seeid. at 36 (citing DOC grievance policy dated January 2018); but see Defs.’ Mot. Ex. F, Townes Decl. ¶ 4; Errata Ex. 1, DOC Policy and Procedure, at 19, ECF No. 108-1. "Evidence that the movant knew about (or should have known about) but which it failed to disclose is not a valid basis for a motion to reconsider." N.S. , 2020 WL 4260739, at *2 ; see alsoAli , 309 F.R.D. at 81 ("[I]t is well-established that [a] motion[ ] for reconsideration ... cannot be used ... as a vehicle for presenting theories or arguments that could have been advanced earlier." (internal citations and quotation marks omitted)). If Defendants expect Plaintiffs to have been aware of the January 2020 iteration of the grievance policy when they filed this lawsuit in March 2020, then surely Defendants should have been expected to produce it during earlier TRO and PI proceedings.
The D.C. Circuit, however, has directed that a court's consideration of new arguments can be more flexible under Rule 54(b) than under Rule 59(e). SeeCobell v. Jewell , 802 F.3d 12, 25–26 (D.C. Cir. 2015). Even under the January 2020 policy, however, DOC was required to respond within 72 hours of receipt of an emergency grievance. See DOC Policy and Procedure, at 19 ("[A]n emergency grievance shall be responded to within seventy-two (72) hours of its receipt."). And the Court already concluded in its PI Opinion that Plaintiff Banks had submitted evidence that he filed an emergency grievance with Defendant Booth on March 23, 2020 and had not received a response by the time this lawsuit was filed six days later. See PI Op. at 29. Accordingly, the Court shall not reconsider its conclusion that Plaintiffs presented sufficient evidence of exhaustion to show a likelihood of success on the merits. Id.
C. The Decisions of Other Circuit Courts of Appeals Do Not Require Reconsideration
Finally, Defendants argue that recent out-of-circuit judicial decisions "vacat[ing] or remand[ing] preliminary injunctions in light of changed circumstances" should prompt reconsideration of the Court's preliminary injunction. Defs.’ Mot. at 15–16. Although none of these decisions is controlling with respect to this Court, the Court shall nonetheless address some of the issues raised by Defendants. SeeYoussef v. Holder , 62 F. Supp. 3d 96, 98 (D.D.C. 2014) (noting that Rule 54(b) permits reconsideration in light of "controlling or significant" change in the law "since the submission of the issue to the Court" (emphasis added)). Ultimately, however, the Court concludes that these out-of-circuit decisions present distinct legal and factual issues that do not compel reconsideration of the injunctive relief at issue in this case. Defendants first note that the Sixth Circuit reversed a district court decision cited once by the Court in its PI Opinion. See Defs.’ Mot. at 15; PI Op. at 37 (citing Cameron v. Bouchard , 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020) as an example of an "injunctive order mandating correctional facility take certain steps involving sanitation, PPE, and medical care in response to COVID-19"). In that case, the Sixth Circuit vacated the district court's preliminary injunction based on the conclusion that the evidence was "insufficient to demonstrate that the jail officials acted with reckless disregard to the serious risk COVID-19 poses." Cameron v. Bouchard , 2020 WL 3867393, at *3, 815 Fed.Appx. 978 (6th Cir. July 9, 2020). But, as Plaintiffs note, the Sixth Circuit decision does not constitute a "change" in the law; it merely involves that court's application of settled law to the unique evidentiary record before it. See Pls.’ Opp'n at 15.
As Plaintiffs note, most of the cases cited by Defendants were decided prior to the Court's injunction order and so do not represent an intervening "change." See Pls.’ Opp'n at 14.
Defendants also brought to the Court's attention the Supreme Court's order granting a stay of the injunction at issue in Ahlman v. Barnes , 2020 WL 3547960, at *5 (9th Cir. June 17, 2020). See Defs.’ Notice of Suppl. Authority, ECF No. 115 (citing Barnes v. Ahlman , ––– U.S. ––––, 140 S. Ct. 2620, 207 L.Ed.2d 1150 (Mem) (2020)). In that case, the Ninth Circuit denied a stay of the preliminary injunction granted by the district court, but remanded to the district court to allow the parties "to present any evidence of changed circumstances to the district court" to permit the court to determine whether "to modify or dissolve the injunction," observing that "the circumstances surrounding the COVID-19 pandemic are evolving rapidly." Ahlman , 2020 WL 3547960, at *5. On August 5, 2020 the Supreme Court stayed the preliminary injunction pending appeal and disposition of a timely petition for a writ of certiorari. Defendants do not explain how this Supreme Court order affects its arguments seeking reconsideration here—other than to provide an additional example of an appellate court staying an injunction related to COVID-19 measures.
In other cases cited by Defendants, appellate courts vacated or stayed preliminary injunctions based on insufficient factual findings. In Swain v. Junior , 961 F.3d 1276 (11th Cir. 2020), for example, the Eleventh Circuit vacated a preliminary injunction based on its conclusion that the district court had relied "overwhelmingly—if not exclusively—on two considerations": (1) the fact that COVID-19 was "continuing to spread" at the facility; and (2) the impossibility of achieving adequate social distancing. Id. at 1286. Similarly, in Marlowe v. LeBlanc , 810 F. App'x 302 (5th Cir. 2020), the Fifth Circuit concluded that the district court's analysis lacked "factual findings" and offered "no reviewable basis" upon which to conclude that the jail's mitigation efforts were "constitutionally deficient." Id. at 305.
In another case cited by Defendants, Valentine v. Collier , 956 F.3d 797 (5th Cir. 2020), the Fifth Circuit did not reach the merits of the plaintiffs’ deliberate indifference claim, concluding that the district court had misapplied the Eight Amendment standard altogether. Id. at 802. Defendants do not appear to contend that the Court made that error here.
The Court here, in contrast, made detailed factual findings with respect to numerous deficiencies cited by Plaintiffs and Amici in ordering injunctive relief. See PI Op. at 14–26. At least one circuit court has affirmed provisions of a TRO based on a district court's factual findings that "assess the requested relief considering the totality of the [defendants’] conduct, rather than reviewing it isolation." Mays v. Dart , 974 F.3d 810, 823 (7th Cir. 2020). The Court's PI Opinion set forth in detail its factual findings and specifically concluded that the relief granted was narrowly tailored to address the cited deficiencies. PI Op. at 36. Accordingly, the Court does not agree that the circuit court opinions cited by Defendants—which rely on distinct factual records at the time injunctive relief was granted—require the Court to reconsider its own decision granting injunctive relief. The Court here makes new factual findings regarding the deficiencies identified in its order granting Plaintiffs partial preliminary injunctive relief. And although there are some marked improvements (some enacted only recently), as noted above, there are still substantial deficiencies which require the preliminary injunction to remain in place. It is important that the improvements are sustained over time. The Court finds that continued injunctive relief as set forth in the Court's PI Order is narrowly drawn to correct the specific identified deficiencies.
IV. CONCLUSION
For the foregoing reasons the Court concludes that justice does not require reconsideration of its Preliminary Injunction Order. The Court therefore DENIES Defendants’ Motion to Alter and Vacate the Court's Preliminary Injunction. An appropriate Order accompanies this Memorandum Opinion.
ATTACHMENT A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDWARD BANKS, et al., Plaintiffs,
vs.
QUINCY L. BOOTH, et al., Defendants.
Civil Action No. 20-CV-00849
Washington, DC
November 9, 2020
10:00 a.m.
TRANSCRIPT OF TELEPHONE CONFERENCE BEFORE THE HONORABLE COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
APPEARANCES:
FOR THE PLAINTIFFS: | ARTHUR B. SPITZER |
SCOTT MICHELMAN, ESQ. | |
MICHAEL K. PERLOFF, ESQ. | |
AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA | |
915 15th Street, Northwest | |
Second Floor | |
Washington, DC 20005 | |
STEVEN D. MARCUS, ESQ. | |
JENNA MARIE COBB, ESQ. | |
JONATHAN ANDERSON, ESQ. | |
PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA | |
633 Indiana Avenue, Northwest | |
Washington, DC 20004 | |
FOR THE PLAINTIFFS: | JONATHAN S. MELTZER, ESQ. |
MUNGER, TOLLES & OLSON, LLP | |
601 Massachusetts Avenue, Northwest | |
Suite 500-E | |
Washington, DC 20001 | |
FOR THE DEFENDANTS: | ANDREW SAINDON, ESQ. |
PAMELA DISNEY, ESQ. | |
OFFICE OF ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA | |
441 Fourth Street, Northwest | |
Sixth Floor | |
Washington, DC 20001 | |
FOR THE INTERESTED PARTY UNITED STATES: | JOHNNY H. WALKER, III, ESQ. |
UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA | |
CIVIL DIVISION | |
555 Fourth Street, Northwest | |
Washington, DC 20530 | |
ALSO APPEARING: | |
|---|---|
ERIC GLOVER, ESQ. | |
MICHELLE WILSON, ESQ. | |
CHARLES AKINBOYEWA, ESQ. | |
GENERAL COUNSEL | |
DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS | |
2000 14th Street, Northwest | |
Washington, DC 20009 | |
GRACE LOPES | |
MARK JORDAN | |
(AMICI CURIAE) | |
REPORTED BY: | LISA EDWARDS, RDR, CRR |
Official Court Reporter | |
United States District Court for the District of Columbia | |
333 Constitution Avenue, NW | |
Room 6706 | |
Washington, DC 20001 | |
(202) 354-3269 |
I do have my court staff on the line.
Ms. Lopes, are you on? MS. LOPES: Yes, your Honor. Good morning.
THE COURT: Good morning.
And is Mr. Jordan on as well?
MR. JORDAN: I am, your Honor. Good morning.
THE COURT: Good morning.
If the Plaintiffs’ counsel, one at a time, could indicate who is on the phone. And if you'd indicate who is going to be the principal speaker.
MR. MARCUS: Good morning, your Honor. This is Steven Marcus for Plaintiffs. And I will be the principal speaker for Plaintiffs.
THE COURT: Okay. Are there other attorneys for Plaintiffs?
MR. SPITZER: Yes, your Honor. This is Arthur Spitzer, also for the Plaintiffs.
THE COURT: All right.
MR. MICHELMAN: Good morning, your Honor. This is Scott Michelman, also for Plaintiffs.
THE COURT: Okay.
MR. PERLOFF: Good morning, your Honor. This is Michael Perloff, also for Plaintiffs.
THE COURT: Okay.
MR. MELTZER: Good morning, your Honor. This is Jonathan Meltzer, also for Plaintiffs.
THE COURT: All right.
MS. COBB: Good morning, your Honor. This is Jenna Cobb, also for the Plaintiffs.
THE COURT: Okay. Anybody else for the Plaintiffs on the line?
MR. ANDERSON: Good morning, your Honor. Jon Anderson, also on behalf of Plaintiffs.
THE COURT: All right. Is that it in terms of Plaintiffs’ counsel?
I hear silence, so I'm assuming it is.
Let's move to, then, Defendants. And let's start with DC. So if you could indicate -- we'll start off with whoever is going to be one of the principal speakers. And I'm assuming there's someone from the Attorney General's Office as well as potentially from the Corrections Department.
So let me let you go ahead and identify yourself for the record. I'd like to start with whoever is going to be the principal speaker. Go ahead.
MR. SAINDON: Good morning, your Honor. Andrew Saindon on behalf of the Defendant. I'll be the principal speaker for the Defendant.
THE COURT: All right. Is anybody else on?
MS. DISNEY: Good morning, your Honor. This is Pamela Disney.
THE COURT: I'm sorry. Pamela ...?
MS. DISNEY: Pamela Disney for the District.
THE COURT: Okay. Is anybody else on for the District?
MR. BLUMING: Yes, your Honor. Micah Bluming, also for the District.
THE COURT: Anybody else?
MR. GLOVER: Your Honor, this is Eric Glover, General Counsel of the DC Department of Corrections.
THE COURT: All right.
MS. WILSON: Your Honor, this is Michelle Wilson for the DC Department of Corrections.
THE COURT: I understand the fact that you're muted, so you have to unmute.
Anybody else after Ms. Wilson? MR. AKINBOYEWA: Good morning, your Honor. This is Charles Akinboyewa from DOC.
THE COURT: I had trouble with the last name. This is counsel from the Bureau of Prisons; is that correct?
MR. AKINBOYEWA: The District of Columbia Department of Corrections, your Honor.
THE COURT: Oh, Department of Corrections. Okay. Could you give me your last name again? I had trouble catching it.
MR. AKINBOYEWA: It's spelled A-K-I-N-B-O-Y-E-W-A.
THE COURT: Okay. Thank you.
Anybody else for the DC end?
I hear silence.
So I assume we have somebody representing the United States?
MR. WALKER: Yes. Good morning. This is Assistant United States Attorney Johnny Walker on behalf of the United States.
THE COURT: Okay. Is there anybody else with you or are you the sole attorney?
MR. WALKER: I'm the sole attorney, your Honor.
THE COURT: All right. So the way we're going to proceed is, I will allow Ms. Lopes or Mr. Jordan to figure out how they want to present it.
What I would ask is that at the end of each section that you're speaking about, Ms. Lopes or Mr. Jordan, if you would indicate before you move on to another topic so that I can ask if anybody has any questions, either I or any of the counsel for the parties have questions or any comments before we move on.
And I'll give you time at the end to make any -- to ask any additional questions or make comments. But I think since we have a fair number of people I want to make sure that the materials or questions, if there are any, or comments, that they come up in the context of the discussion or findings that Ms. Lopes and Mr. Jordan have set out.
And when I call on you, I'll either ask you by name, such as Mr. Marcus. Or if somebody else speaks, if you would, please, as we have on other occasions, give your last name so the court reporter ascribes the comments to the correct people.
All right. So let's start. Ms. Lopes, if you could set out how you and Mr. Jordan wish to proceed.
MS. LOPES: Yes, your Honor. Good morning again.
We've arranged our presentation today to correspond to the six sets of requirements reflected in the June 18th order. And as we have done in previous hearings, some of the requirements will be addressed by Mr. Jordan and some by me.
As a general matter and preliminarily, we wanted to preface our remarks by saying that we have continued to receive collaboration from the staff at Unity and the managers at Unity, the DOC's health services contractor, as well as as a general matter from staff and managers at the DOC. We are very appreciate of the time they have put into responding to our requests and their efforts. It's been extremely helpful.
We thought we would start out by providing some background information to the Court and counsel both about current operations at the CDF and the CTF and about the methodology we used to conduct the assessments.
So by way of background, first, in terms of the populations at both facilities, we received and analyzed -- we requested, received and analyzed populations made up for both facilities for the period June 18th through October 31, 2020. We analyzed that data in four ways that we thought would be helpful to the Court and the parties: total population by day, total occupied cells by day, total number and percentage of occupied cells having two inmates by day and total number and percentage of inmates housed in double versus single cells.
So with respect to that analysis at the CDF, it shows that during this period, the population at the CDF ranged from a low of 819 inmates to a high of 1,039 inmates.
The lowest number of occupied cells in this period was 770. The highest number was 918.
The average daily percentage of occupied cells with two inmates was 8.5 percent. And it ranged from a low of 2.8 percent to a high of 14.4 percent.
The average daily percentage of inmates who were single cells was 83 percent at the CDF.
Now, the Court may recall there are 18 housing units at the CDF. Most have 80 cells. During our recent set of site visits which were conducted during the latter part of October and early November, five of those units were closed. The Defendants reported some units were closed for maintenance, some because they were being used for storage, and one was designated as an isolation unit which was not needed but would be available to activate, if needed. So it was closed.
There is one housing unit at the CDF designated for intake, and this unit was referred to as South 2. Except for inmates with acute mental health issues, who are transferred after a screening process to South 3, and women -- you know, the intake for women is at the CTF -- almost all new intakes are housed on South 2 until they are medically cleared following a series of COVID tests.
Now, we analyzed population data related to South 2, the intake unit, which showed for the same period, June 18th through October 31st, 2020, that the population in South 2 ranged from a low of 44 inmates to a high of 111 inmates.
The lowest number of occupied cells was 35. The highest number was 77. The average daily percentage of occupied cells with two inmates was 25.8 percent. The lowest percentage of occupied cells with two inmates was 5 percent.
The highest percentage of occupied cells with two inmates was 47.6 percent. The average daily percentage of inmates who were single cells in South 2, then, was 57 percent, leaving the average daily percentage double cells at 43 percent at the intake unit during this time period. And so that's what the population data looked like at the CDF.
Turning to the population at the CTF, for the same day that -- during the same time period, June 18th to October 31st, the facility's population ranged from a low of 350 inmates to a high of 464. The lowest number of occupied cells in the period was 347; the highest, 463. The average daily percentage of occupied cells with two inmates at the CTF was .8 percent. The lowest daily percentage of occupied cells with two inmates ranged from 0 to 1.4 percent.
The average daily percentage of inmates with single cells at the CTF was 99 percent during the period.
There are 27 housing units at the CTF, including the 26-room, 40-bed infirmary that serves the system. Most of the housing units have a capacity for 50 beds; some for 96; some smaller.
At the time of our most recent site visit, seven of those units were closed. Some of them were closed because they are designated for special programs such as weekender programs and certain drug treatment programs, which have been suspended in response to the pandemic.
In terms of operations relevant to the housing units at both facilities, there have been some exchanges since our previous site visits. So during previous site visits, the Court and parties may know the DOC designated some housing unit as quarantine or isolation units. During our most recent site visits, there were no quarantine or isolation units operating at either facility.
New intakes are segregated on an intake unit. They undergo a series of COVID tests and they are subject to daily temperature monitoring during a 10- to 12-day period, roughly a 10- to 12-day period, before they are medically cleared and released to the general population.
Since our last series of site visits, the Defendants did establish at both facilities units that they referred to as enhanced monitoring units. And these units house inmates who would return from in-court -- in-person, in-court appearances or face-to-face visits with an attorney at each facility. And the enhanced monitoring that's provided to them consists of daily temperature checks for a 14-day period before they are released back to the population.
Aside from these changes, both facilities have continued to enforce a 23-hour-per-day lockdown with average cell time limited to one hour per day for recreation, which essentially consists of the ability to use showers, make phone calls, watch television and walk around recreation areas that are in the housing units themselves or the day room.
Inmates in segregation units at both facilities are locked down 24 hours a day on weekends and 23 hours per day during the week. So that's the difference there.
In terms of current staffing levels at both facilities, as DOC data that we've reviewed and analyzed indicates that as of November 3rd, 2020, the DOC had 1,005 correctional officers and supervisory correctional officer positions of which 103 were vacant.
We have not confirmed yet, but after today we will be able to do so, the number of authorized positions where the incumbent was unavailable for duty. But one manager estimated it at 123 positions where the person who occupied the position was unavailable for duty, which, combined with the vacancies, is about 20 percent of the authorized positions that are, you know, effectively not staffed.
This is a reduction, you know, relative to the situation in April and May when we were on site. So staffing levels have increased, notwithstanding the fact that it appears vacancies have increased. So there are more staff that are available and filling positions now than there were before. And we'll be able to provide, we hope, a future breakdown in our written report.
I don't know if there are any questions about that kind of background contextual data.
THE COURT: One question that I had was the 1,005 and then you said 103 of which were -- I missed what you said.
MS. LOPES: Vacant, your Honor. So they're vacant positions. They're authorized.
THE COURT: 1,005 are authorized?
MS. LOPES: 1,005 are authorized.
THE COURT: Okay. In terms of the increase of staffing, is the increase in terms of correctional officers, the medical people or a combination? MS. LOPES: There's an increase in medical staffing that we will address in order to facilitate the call, which we will explain. But this is limited to the data I just presented, the correctional officer and correctional supervisor complement.
THE COURT: Plaintiffs’ counsel, any questions that you have so far?
MR. MARCUS: Yes, your Honor. This is Steven Marcus for Plaintiffs.
One question, Ms. Lopes: You mentioned the intake block, South 2. I believe you mentioned at the height of the population increase, almost 50 percent -- I think it was 47 percent of the cells were double cells or double occupancy. Are you aware of -- was that right, Ms. Lopes? I think it was around 47 percent.
MS. LOPES: 47.6 during that time period
MR. MARCUS: Do you know, Ms. Lopes
MS. LOPES: -- which is June 18th through October 31st.
MR. MARCUS: Right.
MS. LOPES: The average.
MR. MARCUS: Was there any conversations around opening another intake block to relieve the population pressure on South 2 as the one intake block?
MS. LOPES: Well, I don't know, except that when we were on site, the unit was -- and in South 2 one night, there were roughly 20 new intakes who were -- that the Defendants were preparing to transfer into South 2, and they indicated that they would be opening another unit. At first, they thought they would have to increase the double celling, and then they indicated they would be opening another unit.
We have not confirmed whether that other unit opened or not. But, you know, we will be going back before our written report and we'll look at that. But they indicated that that's what they would do.
MR. MARCUS: Thanks, Ms. Lopes.
Just briefly, are all new intakes housed on South 2 or are there inmates with special needs or for other reasons that might not be housed on South 2?
MS. LOPES: Yes.
MR. MARCUS: So how is the quarantine, the initial quarantine, addressed for that population?
MS. LOPES: Yes. Yes. And I'm sorry. I skipped over that.
Inmates are screened initially. And inmates when they are placed into South 2, you know, as part of the medical intake screening and the mental health intake screening, inmates identified with acute mental issues are transferred to the mental unit at the CDF South 3, where they are reportedly segregated on a tier in South 3. So South 3, you know, has double -- is double-tiered and a tier is designated for intake, who are segregated from the rest of the population in South 3 during that initial period before they are eventually cleared.
MR. MARCUS: Thank you, Ms. Lopes.
That's it from Plaintiff.
THE COURT: And from the District of Columbia, any questions?
MR. SAINDON: Andrew Saindon, your Honor.
No. Thank you. No questions.
THE COURT: Anybody from the Department of Corrections? Anything you want to clarify or ask?
MR. GLOVER: Nothing from DOC, Judge.
THE COURT: All right. And how about from the United States? MR. WALKER: This is Johnny Walker. Nothing from the United States, your Honor. Thank you.
THE COURT: I have one additional question. There's obviously a range of the populations that you've given, the low and the high. Around October 31st, was it on the high end or where was it? In other words, the
MS. LOPES: The population itself?
THE COURT: Yes.
MS. LOPES: It's going up. And we could -- we can provide all that information in the written report. But it's tending to go up.
And Mr. Jordan may have that accessible at this moment from October 31st. I'm not sure.
MR. JORDAN: It was
THE COURT: Is it
Go ahead, Mr. Jordan.
MR. JORDAN: It was on the higher end at that point. And in fact, if you'd give me one second, I can tell you the number.
On the 31st at the CDF, the number was 1,039. And at the CTF on the 31st, the number was 448.
THE COURT: And the increase: Were they people who were sentenced or people who were new cases where, you know, they were coming in and they were detained? In other words, these were new cases where the Court ordered detention and that's why they're there? Or are they people who were sentenced and were back in the Department of Corrections? Or can you give -- it doesn't have to be exact, but do you have some sense of what population -- what was increasing?
MR. JORDAN: The data that we have right now does not enable us to isolate the categories of the changes at this point.
THE COURT: Okay. Would it be
MR. JORDAN: But it would -- go ahead.
MS. LOPES: We can get that, your Honor.
MR. JORDAN: Agreed. Yes. We can make a data request to analyze that information.
THE COURT: It would be helpful to get some sense of whether -- now that there are more cases and the grand juries are being -- one group is impaneled and I think they're going to move on something else, whether with new cases these are new cases where they're being detained pretrial or whether these are sentenced prisoners or people that have had their supervised release revoked and they're waiting for sentencing. So just general categories to get some sense of what's happening.
And it would be helpful, if you can, to break it down between the Federal Court and Superior Court so we have some idea of where the increase is coming from, unless you know that.
MS. LOPES: No. We don't know that, your Honor.
MR. JORDAN: We do not.
MS. LOPES: But we will do our best.
THE COURT: It doesn't have to be exact, but it would be helpful to have some sense of where -- you know, where the increase is from and which of the courts it is coming from.
This has been very helpful. I was happy to hear once again that DC was cooperative, as they have been in the past, with Ms. Lopes and Mr. Jordan. So I commend you for that.
We can move on to the next section, then. MS. LOPES: Yes. Okay. So with respect to the methodology we used, we thought it would be helpful to just outline that.
We used the methodology for the assessment that was similar to the methodology we used for the earlier assessments. We conducted and essentially have relied on data from three distinct sources: site visits, including observations and interviews; review of the documents that we obtained from the Defendants pursuant to our requests and some that were just sent to us, such as contracts, training materials, et cetera; and the analysis of various data sets that we requested from the Defendants and that were analyzed.
Insofar as the site visits, we conducted unannounced and unescorted site visits on all shifts at both facilities. At the CDF, we conducted site visits on October 22, 23 and 29. At the CTF, we conducted site visits on October 27th and November 2nd. We went to a total of 16 housing units, eight at each facility.
At the housing units, we interviewed staff and inmates as well as conducted observations at virtually all parts of the housing units, the cells and day rooms and recreation areas where those recreation areas are, you know, adjacent to the housing units.
We visited general population units as well as higher security units, special management units and mental health units and mental health stepdown units, medical units, the units for enhanced monitoring, intake. And we were on both the secure and nonsecure sides for both facilities.
We also conducted structured interviews with the DOC medical director, the Unity medical director, the Unity nursing director, the warden and deputy wardens at each facility, the DOC deputy directors responsible for program and case management and training and education. We interviewed dozens of correctional officers and supervisors on site.
And we interviewed inmates, mostly individually, at length and some briefly, and we estimate it was over 80 inmates who we have interviewed.
Other data sources we have relied on include the electronic health records. We again requested and we do need to receive remote access to the electronic health records of all inmates who are currently confined at both facilities. And we requested and have analyzed data for both facilities, again, related to population, housing assignments, sick calls and related response, staffing and COVID testing.
We've also reviewed records related to contractual cleaning services at both facilities, the position description and postings related to the sanitarian position, reports produced by the entities the DOC engaged to provide consulting services related to environmental health and safety and the associated contract documents and the content provided on the educational tablets that have been distributed to inmates in a number of the housing units, which Defendants intend to distribute to inmates in all of the housing units except the intake units and the inmates on disciplinary segregation.
So I don't know if there are any questions about the methodology, your Honor.
THE COURT: No. I don't have any questions.
Anybody else? Plaintiff?
MR. MARCUS: None from Plaintiffs, your Honor.
THE COURT: DC? Any questions?
MR. SAINDON: Thank you, your Honor. Andrew Saindon.
Just one quick question. I want to make sure that Ms. Lopes and Mr. Jordan -- I believe they talked to an independent consultant, but I didn't hear her mention that. I just wanted to verify that.
MS. LOPES: That is correct. We did talk to -- thank you for that, counsel. We did talk to an epidemiologist at the Department of Health who has been consulting with the DOC and with Unity about testing and other issues related to the pandemic and we did have an opportunity to speak with him. His name is Dr. Mangla.
THE COURT: Anybody from the Department of Corrections who has any questions?
MR. GLOVER: This is Eric Glover, your Honor. No questions.
THE COURT: And how about the United States?
MR. WALKER: This is Johnny Walker, your Honor. No questions from the United States. Thank you.
THE COURT: Then go ahead, Ms. Lopes.
MS. LOPES: Okay. Your Honor, with respect to the first requirement in the June 18th order requiring the Defendants to implement a medical care system on general population units that ensure inmates see a provider within 24 hours of reporting health issues and if the system continues to receive sick calls with ensuring that there's complete and immediate access to the slips and that they're collected at regular intervals:
In order to implement this requirement, the Defendants modified their contract with the DOC healthcare provider, Unity Healthcare, and added funding for two provisional nursing assistant positions and two nurse practitioner or physician assistant positions.
The modification covers three distinct periods: from May 18th to September 30th, with two additional option periods, October 1, 2020, to January 31, 2021, and February 1, ’21, through April 14, ’21.
Available records indicate that a new system was implemented on June 23rd. And from interviews with Unity management, we know that this system was piloted and designed prior to that time and then launched full-scale on June 23rd.
Essentially, the system allows for a nursing assistant at each facility to pick up the sick call slips from each housing unit at each facility twice per day. It's generally done in the early morning and at midday.
As a supplement to that, in the special management unit at the CTF -- and there are two special management units at the CTF -- the providers continue to also go cell to cell to check on the inmates there and to check on whether they have any medical needs.
The new system is intended to work this way: The nursing assistants arrive on the housing units. They pick up the sick call slips from the secured box that's maintained on each housing unit. They have a correctional officer who is assigned to the housing unit look in the box to ensure that there are no sick call slips left in the box. The correctional officer then documents that on a form that's maintained by the nursing assistant.
The nursing assistant tallies the number of slips that are picked up and writes down, you know, how many are picked up from each unit that's visited. The nursing assistant transfers that information into an electronic database when they get back to the medical unit.
The sick call slips are triaged by a nurse for urgency. Regarding urgent requests, the inmate is called up and escorted to an urgent care clinic if the request is designated as urgent by the nurse who conducts the triage. If it's an a.m. pickup, the intent is to schedule same-day sick call appointments for the a.m. pickup. And if it's a midday pickup, the intent is to schedule the inmate for the next day for a sick call appointment.
We interviewed inmates, correctional officers, medical providers and the nursing assistants who actually pick up the forms. We also reviewed logs that are maintained called the sick call pickup logs that document the pickups.
In contrast to prior reports we received, for the most part we received favorable reports from inmates about being seen for sick calls for nondental and nonmental health-related matters.
There were during our site visits sick call forms available on 15 of the 16 housing units we visited. The one unit that did not have the forms was the high security unit at the CDF; and the inmates reported that there were access issues at that unit.
Unfortunately, we can't comment on the timeliness of the sick call process now and we don't know right now whether all inmates are seen within 24 hours of submitting their requests for this reason.
We requested all sick call request forms that were submitted between June 18th and October 13th at both facilities. We picked up those forms. We pulled a random sample from each facility and attested the timeliness of the sick call encounter by reviewing the inmate's electronic health records and reviewing the data on the actual sick call slip.
As it turns out, we discovered last week when we received the sick call pickup logs that there was a substantial disparity between the number of sick call requests reflected on the logs and the number that was produced for our review for the same time period. And in fact, there were thousands of sick call slips that had not been produced.
When we followed up, we learned that we hadn't been given all of the sick call slips that we requested, but rather a subset had been selected for our review. So obviously, the findings from the analysis we conducted are not valid; and we intend to select our own sample from the universe of all sick call forms that were submitted. We've made arrangements to do that this week. We expect to be able to review the slips, review the corresponding electronic health records from a sample that we select from the universe of sick call requests and be able to make an assessment and findings that will be reflected in our final report.
Now, the Defendants have developed an innovation to the sick call process that is noteworthy. They are planning to bolster access by digitizing the sick call forms and adding them to the educational tablets that are available to many, if not all, of the inmates at both facilities. We have been told the forms have already been digitized and that the Defendants expect to implement this new system soon after the final group of tablets are delivered to all of the units that are getting the tablets, that are intended to receive the tablets.
This should enhance independent access to sick call forms for inmates because the tablets are issued on a daily basis. Inmates use them until 10:00 or 11:00 at night. They're then taken back and charged overnight. And the forms will be right there in the inmates’ possession on the tablets. They'll be able to electronically send the forms directly to the medical unit using the tablets. So that's an important innovation that the Defendants plan to implement.
And that concludes our presentation for today related to the sick call issues. I don't know if there are any questions, your Honor, but I'd be happy to answer them.
THE COURT: So in terms of the tablets, that's been an ongoing process. Do we have some sense from either you or Corrections, when we get to Corrections, to know when they'll have the tablets?
MS. LOPES: Most of them -- most units have the tablets. I believe that there are perhaps as many as four that do not. They have been most all delivered, or they have all been delivered. That's what's been reported. And, you know, they need to be populated with all of the various apps that the Defendants have decided to put on the tablets. And what was reported to us by the deputy in charge of this was that by, you know, the end of November, if not slightly sooner, all the inmates who are intended for using -- you know, who have been identified as eligible to use the tablets will have the tablets. And the deputy was very confident of that.
So
THE COURT: Can I ask -- go ahead.
MS. LOPES: -- you know, it's been an incremental rollout that has been quite successful and very useful and certainly appreciated by the inmate population
THE COURT: Are there
MS. LOPES: -- the educational tablets.
THE COURT: Who does not get them?
MS. LOPES: Inmates on intake are not -- the Defendants do not intend to provide inmates on intake with them and inmates on disciplinary status.
THE COURT: Okay. Plaintiffs’ counsel, do you have any questions or comments?
MR. MARCUS: Yes, your Honor. Steven Marcus for Plaintiffs here.
Just a couple of questions.
Ms. Lopes, are medical staff still walking the tiers of general population housing units to allow residents who haven't submitted a sick call list to alert that there are any issues?
MS. LOPES: No.
MR. MARCUS: And you mentioned that the two nurses or physicians’ assistants -- I guess four new positions total, two nursing assistant positions and two nurse practitioner or physician assistant positions that came on on a temporary basis. Do you know if their contracts will be extended or what criteria will be used to determine whether to extend their contract?
MS. LOPES: No. We just know that there are these two option periods. And the Defendant can exercise the first option, and then there's a second option period.
THE COURT: Could you remind me of the second option period?
MS. LOPES: Yes. Yes. Yes. Just -- I believe it expired in February. And I'm just looking in my notes. Yes. So the second option period was October 1, 2020, through January 31, ‘21, followed by February 1, ‘21, to April 14, ‘21. Those are the periods.
THE COURT: And they opted at this point for the first time?
MS. LOPES: Yes.
THE COURT: Okay. Anything else, Mr. Marcus?
MR. MARCUS: Just one last question.
Ms. Lopes, can you elaborate on the housing unit that didn't have sick call forms, how the residents there were expected to report the medical issues?
MS. LOPES: They were expected -- our understanding was that they were expected to -- and we have not reviewed this, but will look at this once we have more comprehensive data, to see what the incidence is of requests coming from that unit. But they could not produce the forms on that unit. And inmates said they had a difficult time accessing sick call on that unit because the forms were not always available. And they weren't available when we were there. The staff could not find them.
MR. MARCUS: Thank you, Ms. Lopes.
THE COURT: And that's the high security?
MS. LOPES: Yes.
THE COURT: DC, any questions or comments?
MR. SAINDON: No questions, your Honor. Thank you.
THE COURT: Department of Corrections, any questions or comments?
MR. GLOVER: Your Honor, this is Eric Glover, General Counsel with DOC.
In following up with Ms. Lopes's commentary about the tablets, DOC is working diligently to try to get a rollout by the end of this month or early next month. However, in addition to producing the tablets, the residents at the facilities have to -- the tablets would have to be imaged with all the appropriate information indeed that Ms. Lopes spoke on, and then there will be a training process for the residents for the appropriate usage of the tablets.
THE COURT: Very well. Okay. Anything from the United States?
MR. WALKER: This is Johnny Walker, your Honor.
Nothing from the United States. Thank you.
THE COURT: And Ms. Lopes or Mr. Jordan?
MS. LOPES: Mr. Jordan is addressing the social distancing.
MR. JORDAN: Good morning.
THE COURT: Good morning.
MR. JORDAN: I will start with a brief update on population levels at the two facilities, recognizing that Ms. Lopes covered some of this.
The Defendants reported to the Court that as of June 29th, the combined population in the CDF and CTF was 1,261.
For comparison, the combined population of the facilities for the period June 19th to October 31st ranged from a low of 1,254 to a high of 1,487. The Defendants also reported that 68 percent of DOC residents were in single cells as of June 24th.
For comparison, we conducted the same analysis broken down by facility for the period June 18th to October 31st. The average daily percentage of single-cell inmates at the CDF was 83 percent; at the CTF, the average percentage of single-cell inmates was 99 percent.
We separately analyzed the single cells in South 2, the intake unit at CDF. The average daily percentage of single-cell inmates on that unit was 57 percent.
With respect to social distancing, the current CDC
THE COURT: Could
MR. JORDAN: -- guidelines applicable -- I'm sorry?
THE COURT: Could I ask one quick question? What was the total population at the end of October 31st?
MR. JORDAN: I'm not sure. I'm just going to need to do some quick math. Just a moment.
THE COURT: No problem.
MR. JORDAN: At the end of the period, on October 31st, it was 1,487. That was the high.
THE COURT: Okay. Thank you.
Go ahead. MR. JORDAN: Thank you.
With respect to social distancing, current CDC guidelines applicable to detention facilities recommend individuals maintain a distance of six feet or more.
As Ms. Lopes mentioned, both facilities are still on medical lockdown. Inmates are allowed out of their cells one hour per day in groups. These out-of-cell time restrictions decrease the density of individuals in common areas of cell blocks throughout the day.
DOC staff reported that they limit the number of inmates out of cells at one time to a maximum of six inmates plus up to four inmate details responsible for cleaning duties.
We saw variability in the number of inmates out of their cells during our site visits. We observed as few as one inmate out at a time and as many as 12 to 15. When inmates were out of their cells, social distancing was not consistent. Often, inmates would cluster in small groups to talk, sometimes while not wearing a mask properly covering their noses and mouths.
Facility managers stated that the expectation is that correctional officers enforce social distancing requirements or potentially be subject to personnel action.
DOC representatives also reported that there is a surveillance team that monitors video feeds from housing units and a team is responsible for informing supervisors of instances in which social distancing is not enforced.
Signage is in place throughout both facilities on walls and floors to encourage individuals to remain at least six feet apart. Additionally, DOC representatives reported that, every Wednesday, educational packets are distributed to inmates in every cell, which included at times materials related to COVID.
COVID-related educational materials have been developed and made available on the educational tablets that have been distributed to many inmates in both facilities. DOC officials reported that by the end of November, they expect that all inmates other than those housed on the intake unit and those that have lost their privileges will have daily access to the tablets. Mr. Glover has provided an update on that timeline.
Finally, Defendants report that in recent months, there has been periodic COVID education provided to correctional staff during roll call by a Department of Health representative.
With respect to staffing, the Defendants previously reported to the Court that as of June 24th, three staff members were not available due to COVID and no staff members were quarantined. As of October 27th, DOC staff reported that one staff member was out due to COVID and no staff were quarantined.
As Ms. Lopes mentioned, we have not had an opportunity to assess in detail the total number of correctional staffing complement not available for duty, but we do expect to obtain and analyze that data for our written report.
We were, however, able to compare vacancies in the correctional staffing complement relative to when we last analyzed vacancies in mid-May. At that time, there were 51 correctional officer vacancies, which was approximately 5 percent of the total complement. And as of November 3rd, the number of vacancies had more than doubled to 103 positions, or 10 percent of the staffing complement.
At this point, I would be happy to answer any questions about this requirement. THE COURT: I don't have any questions.
Plaintiffs’ counsel?
MR. MARCUS: Yes, your Honor. Steven Marcus for Plaintiff.
Mr. Jordan, are you aware of any disciplinary actions or personnel actions that have been taken against staff as a result of the surveillance video review?
MR. JORDAN: We did not review any evidence of personnel actions, but we were informed by facility executives that personnel actions have been taken against staff of varying degrees. She described various actions that could be taken and said that some had.
MR. MARCUS: And are you aware of how frequently they review surveillance video for social distancing purposes?
MR. JORDAN: I am not aware at this point.
MR. MARCUS: Okay. That's it from Plaintiffs. Thank you, Mr. Jordan.
THE COURT: It would be helpful to get some sense of whether it's reviewed afterwards or at the time or, you know, sort of what the process is for the review.
MR. JORDAN: We'll look into that.
THE COURT: DC counsel, any questions or comments?
MR. SAINDON: Andrew Saindon, your Honor.
No. Thank you. The Department of Corrections will try to get that information and get it to Ms. Lopes or Ms. Jordan right away.
THE COURT: That would be great.
Department of Corrections, any comments or questions?
MR. GLOVER: Your Honor, I'd just offer a clarification on one point that Mr. Jordan made with regard to those 103 vacancies: DOC received approval for approximately 30 FTEs for fiscal year 2021. So that is sort of skewing that vacancy number, because we've got approval for those vacancies. Obviously, it's for the upcoming calendar year.
THE COURT: United States, anything you want to add or comment?
MR. WALKER: This is Johnny Walker. Nothing, your Honor. Thank you.
THE COURT: Then we'll move to whatever is next.
MR. JORDAN: I will be covering the next section as well, your Honor.
THE COURT: All right.
MR. JORDAN: The next requirement pertains to a number of efforts to enhance environmental health and safety at the two facilities.
DOC's contract with their environmental health and safety vendor, which included the services of a sanitarian, expired. The contract, which began in May, was for an initial term of three months, with three one-month options. In mid-August, the Defendants exercised an option to extend services through October 31st.
The contractor developed a cleaning and disinfecting protocol for DOC's contracted cleaning companies and later conducted site visits to monitor the cleaning practices implemented by those vendors.
They produced a total of four inspection reports, the last of which was issued on October 30th.
The Defendants were required to continue their efforts to hire a registered sanitarian. They posted a vacancy announcement for a position called a sanitation inspection specialist six times between May 21st and October 3rd. The qualifications and education requirements for the posted position do not meet the eligibility requirements necessary to sit for the registered sanitarian exam administered by the relevant credentialing body. DOC representatives informed us that they did not receive any applications from a registered sanitarian despite outreach efforts to public health networks.
We were told that after receiving applications from the same pool of individuals after multiple postings, they decided to hire an individual among the applicants. We were informed the selected applicant does not have a background in environmental health and safety; and the agency intends to provide training. They have developed a written training plan.
We were also informed that the selected individual was again at work by today, November 9th.
Regarding cleaning services: Since June 18th, the Defendants continued their contracts for cleaning services at both facilities. They replaced the contractor at the CDF due to performance issues, and there were no reported gaps in service during the transition period.
The contracts with the two cleaning vendors expire on November 30th.
DOC representatives said that they have funds to extend the contracts and that they intend to do so. However, as of last week, the contract terms for both vendors end on November 30th.
The contractors clean using protocols established by the environmental health and safety vendor. Based on our interviews and observations, it appears that, by and large, the contractors cleaned all the requisite areas every day.
Observationally, common areas and public spaces, both the secure and nonsecure sites, were noticeably cleaner than we previously observed during site visits. DOC staff reported that they noticed an improvement in facility cleanliness as well.
There's been a significant improvement in inmate access to materials to clean their cells. The Defendants provide inmates with a peroxide-based cleaning disinfectant solution. Furthermore, clean microfiber cloths are delivered to housing units twice daily.
At CDF, inmates and staff reported that they are required to clean their cells in the morning at the start of the shift.
And at the CTF, inmates reported that they have access to bottles of peroxide solution and microfiber cloths when they are allowed out of their cells each day.
We observed that the peroxide solution was available on every housing unit we visited; and inmates and staff consistently reported that they had daily access.
The peroxide solution is purchased in concentrated form. It is mixed by designated environmental officers prior to its distribution to housing units. The dilution of that concentrated form of the solution is automated and it is done by a machine programmed to dilute the solution to the levels prescribed by the manufacturer's instructions.
And I would be pleased to answer any questions about this.
THE COURT: If you could clarify the person that they were hiring, please. I didn't quite understand the qualifications that they advertised versus what would be required for somebody who was registered.
MR. JORDAN: Sure.
There is a national credentialing body for a registered sanitarian. It's the National Environmental Health Association. And they set the requirements to sit for the exam. There are certain educational requirements and there are different tracks. When the job description was posted, it lists requirements to be selected as a candidate. But the required credentials and education are lower than would be required to sit for that exam by the credentialing body.
So theoretically, a candidate could be selected who did not have the credentials to sit for the sanitarian exam.
THE COURT: Okay. Would it also discourage somebody, presumably based on a grade, discourage somebody who actually was registered?
MR. JORDAN: Quite possibly, yes. Yes. The job description does not reference the title "sanitarian" in it. So if someone were specifically looking for jobs for credentialed sanitarian, it would not appear in this job description.
THE COURT: Okay. Do you have any sense, having spoken to them, why they did it this way?
MR. JORDAN: At this point, we do not know why they did it this way.
THE COURT: Is it something that you can have a discussion on? I mean
MR. JORDAN: Yes.
MS. LOPES: Oh, yes. Absolutely.
THE COURT: What background
MR. JORDAN: We will follow up.
THE COURT: Do you know what background that person actually has in the area?
MR. JORDAN: We do not at this point. We were only told the person does not have a background in environmental health. But we do not know what that person's background is.
MS. LOPES: I think we do know the person is a case manager who audits -- who is a DOC employee who is a case manager who has done some type of environmental audit of offices in the DOC case management and possibly other administrative areas.
THE COURT: Okay.
MS. LOPES: Or I know that from what was told to us.
THE COURT: There's one more question I would have: Obviously, somebody who is on a registered sort of requirement of education and, you know, passing examinations would probably be eligible for a higher grade than somebody who does not have that background.
And so I wondered whether -- you know, it wouldn't attract somebody if it's a grade lower than what you would expect them to want in terms of getting it. I must admit, I don't understand why you would not have started out with doing a posting that presented getting a registered sanitarian. If you couldn't get one, I could see then considering other options. But not starting off with someone with a posting, that wouldn't attract anybody. And further, it's not obvious that that's what the District is looking for.
So those are my comments.
But it would be helpful to have this -- pursue it a little bit, you know, in terms of why this was done. I mean, who's going to provide the training to this person? Are they training them to become registered sanitarians or training them to do what? Do we know?
MR. JORDAN: We were told that the company that they hired that had the sanitarians would -- was willing to assist in the training. And the DOC staff member said that they would do whatever it takes to get this person to become a sanitarian. But we don't have any specifics about who will actually be conducting what training. We will follow up on that and get more information. THE COURT: Over what period of time? In other words, at what point is the person trained sufficiently that they're actually operating in that position? It would be helpful to know.
I take it they're extending the contract at this point. I thought one of them ended in October. Have they extended these contracts?
MR. JORDAN: Not the contract with the company that had the sanitarian.
THE COURT: Who is doing it if the person they hired isn't trained? Nobody?
MR. JORDAN: As of now, nobody. The company -- the sanitarian, they initially developed the cleaning protocol and subsequently were monitoring the cleaning performed by the contractors. And the last report was issued October 30th.
And since then, there has not been and they do not have a contract for any additional inspection by sanitarians. So right now, nobody is doing that. No sanitarian is doing that.
THE COURT: That certainly needs to be pursued some more, if we could.
Mr. Marcus, anything you want to ask or comment?
MR. MARCUS: Thank you, your Honor. Steven Marcus for Plaintiff.
Mr. Jordan, do you know if the four reports that you referenced -- if those could be made available in addition to your written report?
MR. JORDAN: Yes.
MR. MARCUS: Great. Thanks.
In July, the DOC mentioned -- and I believe it was Ms. Stewart Ponder's declaration -- that they had this contract with Potomac Hudson Engineering who was a registered sanitarian and that they had a 60-day contract with an option to extend up to six months. And I assume that's the registered sanitarian that you were referencing?
MR. JORDAN: That is correct.
MR. MARCUS: Do you know why they chose not to extend the contract?
MR. JORDAN: We were told that because they were hiring their own individual to fill this position that they did not believe they would need the sanitarian to continue with Potomac Hudson.
MR. MARCUS: And the new hire is the case manager at the Department?
MR. JORDAN: That's correct.
MR. MARCUS: That's it from Plaintiffs. Thank you. Thank you, Mr. Jordan.
THE COURT: From the District, any questions or comments?
MR. SAINDON: Andrew Saindon, your Honor.
No questions. But obviously, from a practical standpoint, the Department of Corrections will cooperate [indiscernible].
THE COURT REPORTER: I'm having trouble hearing you, sir.
MR. SAINDON: I'm sorry. Andrew Saindon for Defendants.
I just wanted to say that the Department of Corrections will cooperate with Mr. Lopes and Mr. Jordan going forward and getting more information regarding the sanitarian issue.
THE COURT: Okay. And the Department of Corrections?
MR. GLOVER: Your Honor, this is Eric Glover for the Agency.
We have the same comment as Mr. Saindon: We will follow up with Ms. Lopes and Mr. Jordan regarding this issue.
THE COURT: The United States?
MR. WALKER: Johnny Walker, your Honor. Nothing from the United States on this topic. Thank you.
THE COURT: I must admit, I'm concerned that it wasn't extended at least to the point where the person you hired is trained to actually carry out these functions. We'll be getting more information presumably about the posting and why it was handled that way, which would seem to me not to attract a registered sanitarian for it.
But it sounds like there's sort of a gap here between when the contract ended and when this person that's hired, the former caseworker, is really going to be fully operational. So I have concerns about that. That obviously needs to be addressed.
All right. Ms. Lopes or Mr. Jordan, next topic.
MS. LOPES: Your Honor, just one thing on the training: And that is the Defendants did provide us with a training plan for the person who was hired as the sanitarian. And, you know, that provides some information. So I just wanted to say that. They do have a training plan or manual for the person who was hired. But we'll be able to report on this in more detail.
The next set of requirements relates to certain conditions of confinement on the isolation units. And there have been no isolation units in the CTF since the preliminary injunction was issued. And there have been no isolation units at the CDF since September 28th, when the last inmate who tested positive for COVID was moved from the isolation unit that had been operating at the CDF.
So we couldn't assess operations in the isolation unit during this phase of our appointment.
Any questions about that, your Honor?
THE COURT: No. Nothing from me.
Plaintiff?
MR. MARCUS: Steven Marcus for Plaintiff.
This might be jumping back, Ms. Lopes, to your preliminary comment. But you mentioned the South 3. I think you referred to it as the mental health unit for new intakes to the jail who required those enhanced services. They were on a different tier. Essentially, a tier of South 3 became an intake unit for those residents.
Can you say a little bit, if you know, how the jail was able to segregate people on the same housing unit where some residents are longer-term residents and some residents are new intake, just how that works?
MS. LOPES: I don't think we know. They were simply housed on a separate tier. But I don't think we know how that operated and operates.
But they are segregated. If there is a determination based on a screening, if there's an acute mental health issue that would warrant housing on the mental health unit designated for inmates with acute mental health needs, the inmate would be transferred to South 3. And what we were told was the intent was for them to be housed on a separate tier from the rest of the population on South 3.
But beyond that, we didn't look into it.
MR. MARCUS: Thank you, Ms. Lopes.
That's all from Plaintiff.
THE COURT: All right. DC? Any comments? Questions?
MR. SAINDON: Andrew Saindon, your Honor.
Nothing from the District. Thank you.
THE COURT: I must admit, it's very hard to hear you. I don't know how you have your phone set up. MS. LOPES: I'm sorry, your Honor. Is that better?
THE COURT: I can hear you. Yes. You're good.
It's Mr. Saindon from the District that I have trouble hearing.
MS. LOPES: Oh, okay.
THE COURT: Ms. Lopes I can hear quite well.
MR. SAINDON: I apologize, your Honor. I'll try and move my phone.
THE COURT: DC, any comment or questions?
MR. GLOVER: This is Eric Glover with DOC. No questions or comments, Judge.
THE COURT: How about the US?
MR. WALKER: This is Johnny Walker. No, your Honor. Thank you.
THE COURT: Then let's move on to the next topic.
MS. LOPES: The next requirement relates to access to confidential, unmonitored legal calls of a duration sufficient to discuss legal matters.
And for these purposes, we're kind of thinking about this as two different types of legal calls. There are the attorney-initiated legal calls and the inmate-initiated legal calls; and there are different processes that apply to each. So I'll discuss each one separately, starting with the attorney-initiated legal call.
So these are calls that are arranged by the DOC case manager, and they take place in several different ways. The first way an attorney-initiated legal call takes place is the attorney makes a request to the case management unit at the DOC to schedule a legal call with their client. The client's case manager -- and each housing unit has a designated case manager.
The client's case manager then facilitates the call in one of two ways. The first way implicates this new technology that the Defendants invested in where the case manager brings a cell phone and headset to the housing unit for the inmate to use to talk with his or her lawyer from their cell or from a designated empty cell on the housing unit.
These calls are unmonitored and generally confidential.
The Defendants purchased the cell phones and headsets for this purpose. They received them in several shipments over the summer.
The case management staff has worked through what they reported to be a number of challenges related to the technology, including cell reception issues in some cells. But as a general matter, staff and inmates both report that that part of the system works and works well and that inmates are able when this cell phone apparatus is made available, they are able to have these calls in their cells. They're typically for a 30-minute duration. We didn't get any complaints about the duration. We were told that if they needed to be extended, they could be extended. We didn't get any complaints about the length of time.
Basically, the case manager dials the attorney's number, puts the cell phone in a locked box in proximity to the cell, and gives the inmate the headset to use. It's unclear based on what we know thus far whether there's a sufficient supply of operable phones and headsets available for this purpose, particularly at the CTF, where case management staff did report to us some challenges having consistent access to the equipment, which they share among themselves, the case managers. So that's one way.
The second way the attorney-initiated calls take place are in the case manager's office on an unmonitored telephone. And interviews with the case managers and inmates indicate that these calls are often, but not consistently, conducted in circumstances that ensure confidentiality.
So in a number of instances reported to us by staff and inmates, the case manager was present during the call. And at least one case manager confirmed to us that that is her practice, that if she allows inmates to make a call, a legal call from her office, she remains present.
The head of case management, you know, has reported that she has instructed her staff on the need for confidential calls and certainly has reported that she's made efforts to ensure that confidential calls will take place when facilitated in this other way. But it does not appear to be a consistent practice yet.
The DOC also reports one other way that -- an attorney-initiated way that inmates communicate with their lawyers, and that is through video calls with their lawyers. And we have not had -- we have not had an opportunity to verify or explore this or the incidence of this practice, but we'll endeavor to do so before a written report.
By all accounts, however, inmates don't have difficulty having legal calls that are unmonitored with their lawyers if they're attorney-initiated as opposed to inmate-initiated. But there are still confidentiality concerns within those circumstances.
But where the legal calls are inmate-initiated, in order for those calls to happen, the inmate either fills out a request form or asks the case manager assigned to his or her housing unit to facilitate a legal call.
Insofar as the request form, multiple inmates on multiple housing units reported that they submit request forms, although they do not always get calls, or that there are significant delays between when they submit the request forms and getting calls.
In circumstances in which an inmate asks the case manager assigned to a housing unit for a legal call, it doesn't appear that there's a consistent practice in place, particularly at the CDF. So some inmates reported their case managers were, you know, often available and present and very responsive to their requests. Others reported that was not the case. They had difficulty accessing their case managers and therefore had difficulty getting through to their lawyers.
Some inmates also said that if they requested a call, the way it happened was that their case managers arranged for their attorney's phone numbers to be added to their telephone contact list and then the inmate could make a brief call that was unmonitored -- well, they didn't say unmonitored, but the Department has assured us they're unmonitored -- from the day rooms in their housing units to contact their lawyers.
And the DOC managers we spoke with consider these calls to be legal calls.
However, those calls are not confidential when they're made from the day room. It's not possible to have a confidential phone call from the day room of the housing unit. And so -- but those calls do take place; and inmates have said that, you know, they will use the phone sometimes to talk to their lawyer, but, you know, are inhibited by the fact that those calls are not confidential. So that's another way that those calls occur.
Another way that the DOC reports that inmates can initiate communication with their attorneys is on the educational tablets that are being distributed to inmates. They can -- there is some form of email that is available. And we have not had an opportunity to verify this; but again, we expect to do so. I don't know if there are any questions here about access to legal calls, your Honor. But I'm happy to answer them.
THE COURT: I do. I mean, one of the questions is about the telephone calls. I mean, how does the attorney know that the call is coming? I have a couple of cases where the attorneys have said to me that they've had -- they don't always know when the client -- when the call is going to come through for them to talk to the client.
So the attorney has made this request. And how does the attorney know that the call is going to be at 3:00 or whatever it is? Since presumably these calls are made when the inmates are released for that hour. Are they specific times? I mean, how does the attorney know that -- know to be available?
MS. LOPES: No. No. I don't know how the attorney knows.
But I do know that the calls on the cell phones, for example, are not necessarily when they are released for the hour. The calls on the cell phones can be at any time, you know, at any time. And the same goes with the calls if they're made from the case manager's office. I don't believe it's during necessarily the time that the inmate is released.
But as far as scheduling and notice to counsel, we were not told about scheduling and notice to counsel.
THE COURT: It would be helpful
MS. LOPES: We could explore that.
THE COURT: Yes. The attorney asks -- the attorney isn't going to know in advance that his client -- his or her client wants to speak to him or her. But it seems to me if they made the request -- and then the question is: How quickly is the request met? A number of my cases have been continued because of problems with having contact.
The other question that I have is: For some of the calls, they can be quick. But if you're discussing pleas or preparing for sentencing or various other things, obviously, there are longer calls that are needed to be done. How is that orchestrated? And also, if there's material that they need to look at. I know that FPD has worked something out. But is there anything from the Department of Corrections end on those?
MS. LOPES: We can explore this in much more detail, your Honor, and report on it.
THE COURT: Because it does hold cases up, you know. They're willing to do -- and they're not doing face-to-face visits. They can mail things and get things and have discussions. But clearly, I'm just choosing sentencings or pleas where they need to look at the materials and they need to have an opportunity to talk about it, and it's going to be a longer conversation. And things are getting put off because there hasn't been enough time or they haven't had a chance to get the materials.
So I would like to know, how does this get orchestrated? So the attorney knows that he or she is going to be getting a phone call. And a little bit more about -- and certainly the confidentiality for pleas and sentencings, some confidentiality in terms of if the inmate is initiating the call. And then if they need to look at the material, where mailing it may be a problem. There are occasions when there's an agreement that the material is made available to the Defendant, but they don't wish to mail it so that it's in the cells of the Defendant. How is that orchestrated?
So it would be helpful -- I bring these questions up because these have been issues that have arisen in individual cases that I have. It wasn't clear to me. I didn't have answers, frankly, as to how it was supposed to work. So it would be helpful if these could be explored a little more, because obviously it holds cases up in terms of moving them, which also means in some instances moving people out.
MS. LOPES: Yes. I understand, your Honor. We will follow up and report on these matters.
THE COURT: Anything from Plaintiffs’ counsel?
MR. MARCUS: Briefly, your Honor. Steven Marcus on behalf of Plaintiffs.
Ms. Lopes, is there a rhyme or reason why some calls come from case manager offices and some are from cell phones? Could you discern? Are there some dead zones for cell reception that make those impossible or a limit on the number of cell phones or headsets? Can you explain why some come in one way versus the other?
MS. LOPES: I would just say preliminarily, it appears to be a combination. I mean, there are dead zones, and in some instances that's why a cell or an office has been designated for those calls, because there are dead zones in the housing units. And then at the CTF, you know, there's definitely a report of -- a shortage of cell phones available at that facility.
But I don't think we could say definitively, but I could certainly say that preliminarily.
MR. MARCUS: Thank you.
And were you able to observe or see whether the headsets or equipment is sanitized between uses or know whether that's part of the policy?
MS. LOPES: It's part of the protocol, we were told. But I did not observe that. I observed phones being brought to inmates in their cells on several occasions, but I did not observe what happened in between.
MR. MARCUS: Thank you, Ms. Lopes.
That's it from Plaintiffs.
THE COURT: DC?
MR. SAINDON: Andrew Saindon, your Honor. Thank you. Nothing from the District.
THE COURT: Department of Corrections?
MS. WILSON: Your Honor, this is Michelle Wilson. Good morning, your Honor.
The calls are between 9:00 and 6:00, to answer your question.
THE COURT: Okay.
MS. WILSON: So if the attorney requests a legal call, they are -- the call is -- they will receive confirmation that their call will be -- their client will call them the next day between 9:00 a.m. and 6:00 p.m.
What typically we encourage attorneys to do is to -- if there are blocks of time that they're not available to let us know those blocks of time as opposed to trying to get a call at a specific time, because that is difficult given the amount of calls that need to be made.
So typically, when an attorney says, "I have court between 10:00 and 12:00," then we won't make a call -- their client will not call them between that block of time. We also ask attorneys to provide numbers of -- a cell phone number typically so that in case you go out or have to do something, your client can still reach you and can still make that call. So I believe that is in answer to your legal call question.
In terms of being able to share documents, we have a very robust video call system, your Honor, in which attorneys can -- we have an arrangement with the Federal Public Defender, with the Maryland Public Defender, with the District PDF Service and with the CJA panel where they have scheduled days where they can meet with their clients at both facilities at CTF and CDF in designated locations which are -- which allow for private conversations, confidential conversations between the attorney and their client and they can share documents via that system as well. So they can show them documents.
Attorneys also, we have gotten situations where there are certain documents attorneys cannot give to their clients until right before the meeting. Typically, they will send those documents to me and then I will send them to the officers right before the meeting if they need a signature or something like that.
Or they will share them with the client during the meeting and then send it to us later and say, "Can you now have my client -- give my client these documents for their signature," and then we send them back. So we have been doing that for I don't know -- at length, your Honor. I can't even go back to -- since June, we've been doing the video system and allowing the video legal calls to occur and the sharing of documents.
Also, I will mention that private attorneys, times that are not coordinated for PDS, the CJA panel, Maryland FPD and DC FPD, private attorneys do get an opportunity. And all those matters can be scheduled directly -- they typically contact me, your Honor, and I will schedule them. And the turnaround time, while you may not get your first choice, if you have availability, we do it Monday through Friday. So Monday through Friday from 9:00 to 6:00 at CTF and 9:00 to 4:00 at CDF.
And I can get -- I've scheduled people from this weekend for as early as tomorrow this morning. So they can be scheduled in a pretty rapid manner, depending on what you need and where your client is located and the scheduling flexibility.
THE COURT: So when you say they meet, they're meeting by video. Right? So they're not
MS. WILSON: That is correct.
THE COURT: Okay.
MS. WILSON: That is correct, your Honor.
THE COURT: You had set up a system. It wasn't clear to me how it was actually working, frankly.
MS. WILSON: And, your Honor
THE COURT: This is helpful.
MS. WILSON: -- just so you're aware, since June 22nd, we have been doing in-person contact list visits. And so there are also -- there is that aspect. Some attorneys still prefer to do in-person visits as well. And so that is available to those attorneys who have chosen -- who choose that route as well.
THE COURT: Okay. If I could ask, then, Ms. Lopes or Mr. Jordan, they've given an explanation of a couple of these things, which may be easier to go back and take a look and see how it's working.
MS. LOPES: Yes. We will do that, your Honor.
THE COURT: I appreciate it.
How about the United States? Anything from the United States?
MR. WALKER: This is Johnny Walker, your Honor.
Nothing from the United States.
THE COURT: Are we at the end or do we have one more topic?
MS. LOPES: One more.
THE COURT: Okay. MR. JORDAN: The final topic pertains to COVID testing.
THE COURT: That's right.
MR. JORDAN: The Defendants report that they test inmates upon intake, prior to certain transfers and transports to court, inmates who are symptomatic, and the cellmate of any inmate who tests positive for COVID. For newly admitted inmates, the protocol is to perform a rapid COVID test and a lab test upon admission and to conduct an additional lab test seven days later.
We reviewed testing data for the 133-day period between June 18th and October 29th. Tests were administered on 93 percent of the days during that period.
There were a total of 2,062 tests administered by Unity during the period, which is an average of 16 tests per day. Over that period, there were a total of ten positive tests: four in July, two in August and four in September. All ten of those positive tests were at the CDF.
Nine of those ten appeared to have been detected by an initial COVID test administered upon an inmate's admission to the CDF.
Of those nine, eight of those inmates were housed on South 2 initially. That's the intake unit.
The ninth case involved an inmate who was placed on the mental health unit immediately upon arrival. When his test results came back positive, he was moved to the isolation unit.
The last positive test was not newly admitted. Rather, it involved an inmate who was housed on the mental health unit during that period when that previously mentioned newly admitted inmate housed on the mental health unit tested positive. The day after that newly admitted inmate received his positive test results, the entire mental health unit was tested for COVID, and one inmate on the unit was confirmed positive four days later. And that inmate was moved to the isolation unit.
Turning to inmate transfers to St. Elizabeths and federal correctional facilities, we obtained data regarding all transfers to St. Elizabeths and all inmates and transfers in custody of the United States marshals for the period June 18th through October 31st.
A total of 24 inmates were transferred to St. Elizabeths during that period and 165 inmates were transferred to the custody of the United States Marshals.
We have cross-referenced COVID testing data for samples of both cohorts. However, we're not yet in a position to present our final findings for two reasons: First, with respect to inmates transferred to US Marshals’ custody, we are not yet able to isolate the subset of inmates who are transferred specifically to a federal correctional facility.
The second: For both inmates transferred to St. Elizabeths and those transferred to the custody of the Marshals, we don't yet have a full understanding of the policies, protocols and expectations with respect to timelines for COVID tests in advance of any transfers. And until we do, reporting on any findings would be premature. We expect to present our findings in our written report.
As I previously mentioned, the Defendants report that they test cellmates of any inmate who tests positive. Of the ten inmates who tested positive between June 18th and October 29th, one inmate had a cellmate. They were both housed in the cell in the intake unit. And in this case, the cellmate was tested on the day that the positive test result was returned; and his test result was negative. Finally, the Defendants report that they continue to test inmates who present with COVID symptoms. We analyzed the sample of sick call requests that included symptoms consistent with COVID symptoms identified by the CDC. As Ms. Lopes previously described, there was a problem with the validity of the sample that we drew.
Additionally, we have outstanding questions regarding testing protocols for inmates who present with COVID symptoms that we need to resolve before we can report on that data. But we do expect to present our findings in our written reports.
And I will be pleased to answer any questions you might have.
THE COURT: In terms of the US Marshal custody, are you counting people that would be brought to court back and forth or are you counting people
MR. JORDAN: We are not.
THE COURT: So it's people that they're actually transferring out?
MR. JORDAN: That's correct. They are released from DOC custody.
THE COURT: Okay. Is somebody who had COVID hospitalized? I get these reports from Mr. Glover. It wasn't clear. I'm assuming the hospitalization related to COVID, but maybe not.
MR. JORDAN: Among these ten, nobody was hospitalized. Of the ten between June 18th and October 29th, I mean.
THE COURT: Mr. Glover, maybe I'll just jump over to you.
MR. GLOVER: Yes, Judge.
THE COURT: I know you get the reports. Sometimes there's somebody in a halfway house and then there's somebody in a hospital. Are you just indicating that an inmate is hospitalized and it has nothing to do with COVID? I wasn't clear whether it meant they were hospitalized because of COVID or hospitalized, period.
MR. GLOVER: I apologize for the ambiguity, your Honor. This is Eric Glover.
In my reports, if the resident is hospitalized specifically due to COVID, that would be reflected in the daily report.
THE COURT: Okay. So these would be people that just got hospitalized.
MR. GLOVER: Yes, your Honor.
THE COURT: You're indicating where they're located. They're either in CDF or CTF or some may be in a halfway house or a hospital, is what you're basically telling me.
MR. GLOVER: It's just a general overview of the data of the Agency's residents. So when I reference a hospitalization, unless it specifically indicates a hospitalization due to COVID, it's just a hospitalization for a general issue, medical issue, not COVID-related.
THE COURT: Okay. Plaintiff, do you have any questions or comments?
MR. MARCUS: Steven Marcus for Plaintiffs. Thank you, your Honor.
A couple of quick questions, Mr. Jordan. Dr. Jordan attested in late August that there had been some test processing delays at the lab that had held up some test results for residents. Do you know if those delays are ongoing or if they've been resolved?
MR. JORDAN: I am not aware if they are ongoing. We did not hear reports of delays during our visits and conversations.
We do have access to data that includes the elapsed time between tests administered and tests received, so that's something that we could look at.
MR. MARCUS: Thank you. And the Department previously conducted two or three rounds of surveillance testing; in other words, testing of some percentage of the residential population, even if they had not reported symptoms. Do you know if that's ongoing?
MR. JORDAN: At this point, it is not ongoing. We were told that DOC had consulted with DOH, and at this point they don't believe it is indicated. At the same time, they said they were discussing new surveillance options with DOH, but there were no specific plans when we spoke with representatives for additional surveillance testing at this time.
MR. MARCUS: All right. And do you know if there's any program to test staff or if DOC staff has ever been tested?
MR. JORDAN: There is now. I don't have the exact start date. But within the past month, they had started voluntary testing of DOC staff. Any DOC staff member can come and receive a test. They're administered by the Department of Health. They do it at the shift change so that staff from both -- there's two shifts at this point. The staff from both shifts can go to attend that. And it's available to all staff at this point. It's not mandatory, though.
MR. MARCUS: And do you have any -- were you able to obtain the results of the staff testing?
MR. JORDAN: There had been two rounds of testing, from memory; and I would have to confirm this. During the first testing, I believe it was about 150 staff members who went. And there were no positives. And I believe from the second there were also zero positives from those testing events.
MR. MARCUS: That's all from Plaintiffs.
Thank you, Mr. Jordan.
THE COURT: DC, any comments or questions?
MR. SAINDON: Thank you, your Honor. Andrew Saindon for Defendants.
Mr. Jordan, do you know when the Department of Corrections received their last positive test of an inmate?
MR. JORDAN: I do. It was
MS. LOPES: September 17th.
MR. JORDAN: -- September 17th. Yes.
MR. SAINDON: Okay. Thank you.
When you talked to Dr. Mangla, did he offer any observations about the testing or about how DOC's numbers compare with those of others, other correctional facilities across the country?
MR. JORDAN: I would have to review my notes.
Ms. Lopes, do you have specific comparisons with other jurisdictions? I don't recall, but I would have to look back.
MS. LOPES: I don't recall. I mean, he was generally very laudatory. But with specificity, I don't recall without accessing my notes, which I don't have with me at the moment.
MR. SAINDON: Thank you. [Indiscernible.]
THE COURT: I can't hear you, Mr. Saindon. Speak up.
MR. SAINDON: I'm sorry, your Honor.
Ms. Lopes, Mr. Jordan, did Dr. Mangla talk about the idea of mass testing of inmates and what his thoughts were on that?
MS. LOPES: I'm going to have to -- we'll have to review -- I have to review my notes on the conversation with him. I'm sorry.
MR. SAINDON: That's fine. That's fine. Nothing further from the District. Thank you, your Honor.
THE COURT: From Corrections, any questions or comments?
MR. GLOVER: Your Honor, this is Eric Glover.
I believe during Mr. Jordan's presentation, you made reference with regard to questions -- questions on testing for residents via transfer as opposed to via court appearances.
Just for the Court's education, the Agency has a policy in place both with the Superior Court and the District Court regarding testing of residents before they are transferred to the respective courts for hearings. Our staff receives residents’ names, the dates of their appearances, and we work with our staff and our medical contractors to have these residents tested before the hearings.
We've been notifying the court representatives of the results so that a determination can be made if the resident is going to be brought to court or not. Or in some instances, where the resident may refuse testing, we will alert the Court and the Court will advise if they still want the resident to be produced for the hearing.
So there are policies in place for both courts, both our District Courts, with regard to resident testing for hearings.
With regard to testing of staff, as represented during the presentation, we do have our program in place with the Department of Health; and they will be coming to the facility, and I believe it's on a weekly or every-two-week basis, where staff can voluntarily appear for a COVID test at the facility in between shifts.
THE COURT: Okay. Thank you.
Anything from the United States?
MR. WALKER: This is Johnny Walker, your Honor. Nothing from the United States. Thank you.
THE COURT: All right. Ms. Lopes or Mr. Jordan, anything else that you want to brief us on?
MS. LOPES: I don't believe so.
I do have a practical concern, your Honor.
THE COURT: Okay.
MS. LOPES: In terms of the followup that's been identified, some of which we didn't anticipate, I would like an opportunity to confer with Mr. Jordan about scheduling of this final report. And I would inquire whether you'd be inclined to give us a little flexibility, if necessary.
THE COURT: It would seem to me the questions that have been raised either by me or others, I would -- I don't have any problem doing it, particularly where you're going to be getting information that you didn't have before about the sick calls, which I think is an important piece. It may take you longer.
Yes. I prefer to get a complete report with your -- and be satisfied that you've had access and an opportunity to review it and we have had some additional questions, probably mostly by Plaintiffs’ counsel, which we would want to have responded to.
So if you do need additional time -- I was going to ask that, frankly. If you do need additional time, if you'd let us know.
MS. LOPES: Yes. I'll confer with Mr. Jordan and, if appropriate, reach out to counsel for both sides and then get back to the Court on that.
THE COURT: Yes.
MS. LOPES: Thank you.
THE COURT: That would be perfect. Is there anything more that Plaintiff wants to discuss at this point on this issue with these reports?
MR. MARCUS: Nothing from the Plaintiff.
Thank you, your Honor.
And thank you, Ms. Lopes and Mr. Jordan.
THE COURT: Yes. I do appreciate your spending the time and going through all of this additional information, which has been very helpful. And certainly different things have been noted that we have gone through in terms of what efforts are being made by the Department of Corrections to address them.
Is there anything else from the District on these reports?
MR. SAINDON: No. Thank you, your Honor.
We also appreciate the effort put in by Ms. Lopes and Mr. Jordan in getting this done.
THE COURT: Mr. Glover, anything from you?
MR. GLOVER: Nothing from DOC, Judge. This is Eric Glover.
THE COURT: Mr. Glover, I have to say that I have on occasion indicated that defense counsel have raised questions with me, which I have no way of resolving, regarding access, that if they indicate they're having difficulties, I've asked them to contact you.
It's not clear to me in talking -- and this has been useful, to get this additional information -- whether they know what's available or whether they're actually having problems, which is part of the reason for either having them talk to FPD or in a few cases actually talk to you.
MR. GLOVER: Well, Judge, many of the Judges at the Court have directed counsel to my attention and Ms. Wilson's attention. And if this Court has any issues that they believe would be best resolved by the Agency, we have no issue with the Court referring counsel to us and we will do everything possible to address their concerns.
THE COURT: Well, I appreciate that.
Sometimes it's difficult to tell whether they know what systems have been put in place. Obviously, FPD does, but sometimes some of the CJA attorneys do and some of them don't. But that's why I've done that, because it seems a quicker way of doing it. They can either ask FPD, but it seems in some instances a more direct way to make a request to you. And that's why I'm doing it. I'm just explaining to you why you're getting some of these phone calls.
MR. GLOVER: Thank you, Judge.
THE COURT: Anything from the United States?
MR. WALKER: This is Johnny Walker.
Nothing from the United States, your Honor, other than I'll add my thanks to Ms. Lopes and Mr. Jordan.
THE COURT: It has been very helpful.
One question that I do have while I have the United States on. And you may not be prepared to answer it, but I thought I would ask, since I have you on: Has there been movement since the population is moving up, although it's not clear to me, and we'll get a better sense of this, whether it's new people, people that are sentenced that have not been moved out or what category they fall in? Has the Parole Commission, on which you have reported -- have those moved more quickly?
MR. WALKER: Your Honor, I don't have any updates since the last report that we submitted to the Court from the Parole Commission. I'm happy to get some additional information and report further on that.
THE COURT: That would be very helpful, since I think -- I don't have it in front of me as to when you reported last.
Do you remember off the top of your head or can you check?
MR. WALKER: Not off the top of my head, but I have the docket pulled up and I can check relatively quickly, your Honor.
THE COURT: All right.
MR. WALKER: If I could have a moment. The Court's indulgence.
THE COURT: Certainly. No problem.
MR. WALKER: Your Honor, we filed the report on September 11th.
THE COURT: It would be helpful, I think, to basically have an update to make sure the process is actually working, particularly where we are getting an uptick in the number of people that are coming in. I'm not sure if they're coming in or not moving out. But it would be helpful.
When do you think you could do it?
MR. WALKER: Your Honor, I could probably get that to you in a couple weeks.
THE COURT: Give me a date.
MR. WALKER: Let's say November 23rd.
THE COURT: I'd like to get it -- I'm sorry. When?
MR. WALKER: November 23rd.
THE COURT: Okay. That should work. The Parole Commission and anything else in terms of people coming in and whether there are issues in terms of moving people out that have been sentenced to the BOP facilities. I know they've had some issues at their end.
MR. WALKER: Understood, your Honor.
THE COURT: If there's nothing else, then I'll excuse everybody. And I appreciate everybody taking the time and looking carefully at this issue.
And I do thank Ms. Lopes and Mr. Jordan for taking the time. I know it's very time-consuming, and I appreciate your willingness to go into the facilities and take a look at it.
So if somebody has something else, speak up. If not, I'll excuse everybody. And take care and be well.
MS. LOPES: Thank you, your Honor.
MR. JORDAN: Thank you, your Honor.
MR. GLOVER: Thank you, your Honor.
MR. MARCUS: Thank you.
THE COURT: I don't hear any additional questions. So let me excuse you at this time. Take care.
MR. SAINDON: Thank you, your Honor.
MR. WALKER: Thank you, your Honor.
(Proceedings concluded.)
CERTIFICATE
I, LISA EDWARDS, RDR, CRR, do hereby certify that the foregoing constitutes a true and accurate transcript of my stenographic notes, and is a full, true, and complete transcript of the proceedings produced to the best of my ability.
Dated this 16th day of November, 2020.
/s/ Lisa Edwards, RDR, CRR
Official Court Reporter
United States District Court for the District of Columbia
333 Constitution Avenue, NW, Room 6706
Washington, DC 20001
(202) 354-3269
Tabular or graphic material set at this point is not displayable.
ATTACHMENT B
[missing text]
REPORT SUBMITTED BY AMICUS CURIAE PURSUANT TO SEPTEMBER 16, 2020 ORDER
Index to Exhibits
APPENDIX A | |
|---|---|
Exhibit 1A | Chart, Combined Population of CDF and CTF, by Day and Legal Status, June 18, 2020 – October 31, 2020 |
Exhibit 1B | Table, Combined Population of CDF and CTF, by Status and Day, June 18, 2020 – October 31, 2020 |
Exhibit 1C | Table, Admissions to CDF and CTF, by Status and Month, June 18, 2020 – October 31, 2020 |
Exhibit 1D | Table, Average Length of Stay of Inmates Housed at CDF and CTF, by Status and Month, June 18, 2020 – October 31, 2020 |
Exhibit 2A | May 18, 2020 Modification of Contract CW68868 |
Exhibit 2B | Sick Call Request Form |
Exhibit 2C | Inmate Request Slip |
Exhibit 3A | Quick Guide to COVID-19 |
Exhibit 3B | Response to COVID Survival Guide |
Exhibit 3C | Wearing Personal Protective Equipment |
Exhibit 4A | August 18, 2020 Modification of Contract CW82753 |
Exhibit 4B | SARS-CoV-2 (COVID-19) Disinfection and Cleaning Protocols |
Exhibit 4C | Onsite Audit Inspection Report, Environmental Conditions Inspection for SARS-CoV-2 (COVID-19) Disinfection and Cleaning Protocols, dated July 2020 |
Exhibit 4D | Follow-Up Onsite Audit Inspection Report, Environmental Conditions Inspection for SARS-CoV-2 (COVID-19) Disinfection and Cleaning Protocols, dated July 23, 2020 |
Exhibit 4E | Follow-Up Onsite Audit Inspection Report No. 2, Environmental Conditions Inspection for SARS-CoV-2 (COVID-19) Disinfection and Cleaning Protocols, dated September 2020 |
Exhibit 4F | Follow-Up Onsite Audit Inspection Report No. 3, Environmental Conditions Inspection for SARS-CoV-2 (COVID-19) Disinfection and Cleaning Protocols, dated October 30, 2020 |
Exhibit 4G | Modification of Contract DCAM-20-NC-EM-0079C |
Exhibit 4H | Modification of Contract DCAM-20-NC-EM-0079B |
Exhibit 4I | November 23, 2020 e-mail from George Lewis to Gitana Stewart-Ponder |
Exhibit 4J | Sanitarian Inspection Specialist, job description and vacancy announcement |
Exhibit 4K | NEHA Registered Environmental Health Specialist/Registered Sanitarian (REHS/RS) Candidate Information Brochure |
Exhibit 4L | Sanitarian Job Description and Vacancy Announcement |
Exhibit 4M | Training Plan for DOC Sanitarian |
Exhibit 4N | Draft Position Description, Environmental Sanitarian CS-1801-12 |
Exhibit 5A | Chart, Legal Calls, Emergency Calls to Private and Public Attorneys, April 20 - October 15, 2020 |
Exhibit 5B | Chart, Legal Calls Cont., Number of Emergency Legal Calls Requested by Public and Private Attorneys, April 20 - October 15, 2020 |
Exhibit 5C | Order Confirmation, First Net, Order No. 587640299 (cell phones) |
Exhibit 5D | Proof of Delivery, Technomic, RTS No. 100561 (wireless handsets) |
Exhibit 6 | Prisoner in Transit Form, Redacted |
APPENDIX B | |
App. B, Ex. 1 | Center for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Updated December 3, 2020 |
APPENDIX A
Ex. 1AEx. 1B
Ex. 1C
Ex. 1DEx. 2A Tabular or graphic material set at this point is not displayable. Ex. 2BEx. 2C
Ex. A
What is a novel coronavirus? A novel coronavirus is a new coronavirus that has not been previously identified. The virus causing coronavirus disease 2019 (COVID-19), is not the same as the coronaviruses that commonly circulate among humans and cause mild illness, like the common cold.
Why is the disease called coronavirus disease 2019, COVID-19? On February 11, 2020 the World Health Organization (WHO) announced an official name for the disease that is causing the 2019 novel coronavirus outbreak, first identified in Wuhan China. The new name of this disease is coronavirus disease 2019, abbreviated as COVID-19. In COVID-19, ‘CO’ stands for ‘corona,’ ‘VI’ for ‘virus,’ and ‘D’ for disease. Formerly, this disease was referred to as "2019 novel coronavirus" or "2019-nCoV".
There are many types of human coronaviruses including some that commonly cause mild upper-respiratory tract illnesses. COVID-19 is a new disease, caused by a novel (or new) coronavirus that has not previously been seen in humans. The name of this disease was selected following WHO best practice for naming of new human infectious diseases.
What's the source of the virus? COVID-19 is caused by a coronavirus called SARS-CoV-2. Coronaviruses are a large family of viruses that are common in people and may different species of animals, including camels, cattle, cats, and bats. Rarely, animal coronaviruses can infect people and then spread between people. This occurred with MERS-CoV and SARS-CoV, and now with the virus that causes COVID-19. The SARS-CoV-2 virus is a betacoronavirus, like MERS CoV and SARS CoV All three of these viruses have their origins in bats The sequences from U.S. patients are similar to the one that China initially posted, suggesting a likely single, recent emergence of this virus from an animal reservoir However, the exact source of this virus is unknown
How does the virus spread? The virus that causes COVID 19 is thought to spread mainly from person to person, mainly through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs Spread is more likely when people are in close contact with one another (within about 6 feet).
COVID 19 seems to be spreading easily and sustainably in the community ("community spread") in many affected geographic areas. Community spread means people have been infected with the virus in an area, including some who are not sure how or where they became infected
Why are we seeing a rise in cases? The number of cases of COVID-19 being reported in the United States is rising due to increased laboratory testing and reporting across the country. The growing number of cases in part reflects the rapid spread of COVID-19 as many U.S. states and territories experience community spread. More detailed and accurate data will allow us to better understand and track the size and scope of the outbreak and strengthen prevention and response efforts.
Can someone who has had COVID-19 spread illness to others? The virus that causes COVID-19 is spreading from person-to-person. People are thought to be most contagious when they are symptomatic (the sickest). That is why CDC recommends that these patients be isolated either in the hospital or at home (depending on how sick they are) until they are better and no longer pose a risk of infecting others. More recently the virus has also been detected in asymptomatic persons.
How long someone is actively sick can vary so the decision on when to release someone from isolation is made using a test-based or non-test-based strategy (i.e. time since illness started and time since recovery) in consultation with state and local public health officials. The decision involves considering the specifics of each situation, including disease severity, illness signs and symptoms, and the results of laboratory testing for that patient. Someone who has been released from isolation is not considered to pose a risk of infection to others.
Can someone who has been quarantined for COVID-19 spread the illness to others? Quarantine means separating a person or group of people who have been exposed to a contagious disease but have not developed illness (symptoms) from others who have not been exposed, in order to prevent the possible spread of that disease. Quarantine is usually established for the incubation period of the communicable disease, which is the span of time during which people have developed illness after exposure. For COVID-19, the period of quarantine is 14 days from the last date of exposure because the incubation period for this virus is 2 to 14 days. Someone who has been released from COVID-19 quarantine is not considered a risk for spreading the virus to others because they have not developed illness during the incubation period.
Can I get sick with COVID-19 if it's on food? Based on information about this novel coronavirus thus far, it seems unlikely that COVID-19 can be transmitted through food – additional investigation is needed.
Will warm weather stop the outbreak of COVID-19? It is not yet known whether weather and temperature affect the spread of COVID-19. Some other viruses, like those that cause the common cold and flu, spread more during cold weather months but that does not mean it is impossible to become sick with these viruses during other months. There is much more to learn about the transmissibility, severity, and other features associated with COVID-19 and investigations are ongoing.
What are the symptoms and complications that COVID-19 can cause? Current symptoms reported for patients with COVID-19 have included mild to severe respiratory illness with fever1, cough, and difficulty breathing.
If I recovered from COVID-19, will I be immune to it? CDC and partners are investigating to determine if you can get sick with COVID-19 more than once. At this time, we are not sure if you can become re-infected. Until we know more, continue to take steps to protect yourself and others.
Who is at higher risk for serious illness from COVID-19? COVID-19 is a new disease and there is limited information regarding risk factors for severe disease. Based on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19. Based on what we know now, those at high-risk for severe illness from COVID-19 are:
• People aged 65 years and older
• People who live in a nursing home or long-term care facility
People of all ages with underlying medical conditions, particularly if not well controlled, including:
• People with chronic lung disease or moderate to severe asthma
• People who have serious heart conditions
• People who are immunocompromised
• People with severe obesity (body mass index [BMI] =40)
• People with diabetes
• People with chronic kidney disease undergoing dialysis
• People with liver disease
What kind of tesng is being used to diagnose if I have COVID-19? There are actually many tests being used to diagnose COVID-19 that the U.S. Food & Drug Administration (FDA) has authorized for use during the current emergency. All of these diagnostic tests identify the virus in samples from the respiratory system, such as from nasal or nasopharyngeal swabs.
CDC Guidelines on How to Protect Yourself and Others
Know how it spreads
There is currently no vaccine to prevent coronavirus disease 2019 (COVID-19).
The best way to prevent illness is to avoid being exposed to this virus.
The virus is thought to spread mainly from person-to-person:
• Between people who are in close contact with one another (within about 6 feet).
• Through respiratory droplets produced when an infected person coughs, sneezes or talks.
• These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs.
• Some recent studies have suggested that COVID-19 may be spread by people who are not showing symptoms.
Clean your hands often
• Wash your hands often with soap and water for at least 20 seconds especially after you have been in a public place, or after blowing your nose, coughing, or sneezing.
• If soap and water are not readily available, use a hand sanitizer that contains at least 60% alcohol. Cover all surfaces of your hands and rub them together until they feel dry.
• Avoid touching your eyes, nose, and mouth with unwashed hands.
Avoid close contact
• Avoid close contact with people who are sick.
• Put distance between yourself and other people, at least 6 feet when possible (social distancing)
• Remember that some people without symptoms may be able to spread virus.
Cover your mouth and nose with a cloth face cover when around others
• You could spread COVID-19 to others even if you do not feel sick.
• Everyone should wear a cloth face cover when they have to go out in public (cloth face coverings should not be placed on anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance).
• The cloth face cover is meant to protect other people in case you are infected.
• Do NOT use a facemask meant for a healthcare worker.
• Continue to keep about 6 feet between yourself and others. The cloth face cover is not a substitute for social distancing.
Cover coughs and sneezes
• If you are in a private setting and do not have on your cloth face covering, remember to always cover your mouth and nose with a tissue when you cough or sneeze or use the inside of your elbow.
• Throw used tissues in the trash.
• Immediately wash your hands with soap and water for at least 20 seconds. If soap and water are not readily available, clean your hands with a hand sanitizer that contains at least 60% alcohol.
Clean and disinfect
• Clean AND disinfect frequently touched surfaces daily. This includes tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets, and sinks.
• If surfaces are dirty, clean them. Use detergent or soap and water prior to disinfection.
Definitions:
Medical Isolation— Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials. In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting.
Quarantine— Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed undermedical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility
Social Distancing— Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e g, avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e g, rearranging chairs in the dining hall to increase distance between them) Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID 19
Verbal Screening & Temperature Check Protocols for Incarcerated/Detained Persons, Staff, & Visitors
CDC guidance recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed.
? Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions:
1. Today or in the past 24 hours, have you had any of the following symptoms? Fever, felt feverish, or had chills? Cough ? Difficulty breathing?
2. In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
? The following is a protocol for medical providers to safely check an individual's temperature:
• Perform hand hygiene
• Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves
• Check individual's temperature
• If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical
contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control.
• Remove and discard PPE and perform hand hygiene
Ex. B Tabular or graphic material set at this point is not displayable.
Tabular or graphic material set at this point is not displayable.
Ex. C
Ex. AEx. BEx. C APPENDIX A
SARS- COV -2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS Tabular or graphic material set at this point is not displayable.
Tabular or graphic material set at this point is not displayable.
Ex. 4D Tabular or graphic material set at this point is not displayable. Ex. 4E
Ex. 4F Tabular or graphic material set at this point is not displayable.
Ex. 4G
Ex. 4H
Ex. 4IEx. 4J Tabular or graphic material set at this point is not displayable. Ex. 4K Tabular or graphic material set at this point is not displayable. Ex. 4L Tabular or graphic material set at this point is not displayable. Ex. 4M Tabular or graphic material set at this point is not displayable.
Tabular or graphic material set at this point is not displayable. Tabular or graphic material set at this point is not displayable. APPENDIX A
SARS- COV -2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS Tabular or graphic material set at this point is not displayable.
Tabular or graphic material set at this point is not displayable.
Tabular or graphic material set at this point is not displayable.
Ex. 4N
Ex. 5AEx. 5BEx. 5C
Tabular or graphic material set at this point is not displayable.
Ex. 6
APPENDIX B
App. B, Ex. 1 Tabular or graphic material set at this point is not displayable.