ACLU Files Lawsuit for Inmates at Devens Federal Prison – Claiming ‘Deliberate Indifference to the Risk of Rampant Infection’ During Coronavirus Pandemic

[Breaking News: Rumors coming out of the federal prison camp in Otisville, NY  indicate that the BOP may be preparing to shut down the entire facility  –  and place all its remaining 101 inmates on “home confinement”. The facility is considered by many to be the cushiest federal prison in the U.S. – and is where Michael Cohen was serving his time before being released because of concern that he might become infected from the coronavirus. 

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On April 1^st, the Bureau of Prisons (BOP) announced that it was going to implement a 14-day agency-wide lock-down in order to prevent the spread of COVID-19 in its 122 facilities.

During the lock-down, many inmates spent 23-hours per day in their cells. They were also served mostly cold meals (often accompanied by sour milk), denied medical and dental visits, and only allowed to shower, make phone calls, and use the internet on certain days.

In this sort of situation, all inmates can usually do is try to hold on – and get through it as best they can.

Unless, of course, they’re lucky enough to have someone come forward to protect their constitutional rights.

Which is exactly what happened at Federal Medical Center (FMC) Devens when the ACLU Foundation of Massachusetts, Inc. – and some dedicated attorneys from the Fick & Marx law firm in Boston, MA – decided to initiate a lawsuit on behalf of several named prisoners “and those similarly situated”.

The lawsuit – which is titled Alexander Grinis, Michael Gordon and Angel Soliz v. Stephen Spaulding and Michael Carvajal (Grinis Et Al v. Spaulding Et Al) – was brought in the U.S. District Court for the District of Massachusetts.

Grinis, Gordon and Soliz are all inmates at FMC Devens.

Spaulding is the Warden at FMC Devens – and Carvajal is the Director of the BOP.

Since the lawsuit was initially filed on April 14^th, John Tighe has reportedly been added as a named petitioner.

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Lawsuit Seeks to Immediately Reduce Inmate Population at FMC Devens

In conjunction with the lawsuit, the Petitioners are seeking to have the court immediately release enough inmates who are at severe risk of illness or death from COVID-19 due to advanced age or pre-existing medical conditions – and inmates who would otherwise be appropriate candidates for compassionate or home confinement – to ensure that the remaining inmates and staff can comply with the Centers for Disease Control’s (CDC) guidelines for physical distancing.

The suit alleges that officials at FMC Devens and the BOP have exhibited deliberate indifference to the risk of rampant infection and death that COVID-19 poses to the types of inmates who are housed at the facility. As such, the suit alleges those failures amount to a violation of the Eighth Amendment’s prohibition against “cruel and unusual punishment”.

“The ACLU and public health experts have warned that jails and prisons could become incubators for COVID-19,” said Carol Rose, Executive Director of the ACLU of Massachusetts. “Indeed, the virus is spreading through correctional facilities around the country, with devastating consequences for imprisoned people, staff, local health care workers, and the broader community. People’s lives are at stake, and we’re asking for immediate action to stem the outbreak.”

Although FMC Devens has not publicly released any information about the number of inmates and staff who have tested positively for COVID-19, the population at the facility is considered particularly vulnerable to the disease. That’s because the facility houses many inmates who are elderly – and many who have serious illnesses.

 “It is appalling that Devens continues to operate near full capacity in the face of a pandemic,” William Fick, a partner at Fick & Marx. “There is no excuse for failing to immediately release elderly prisoners in their 70s and 80s, those with severe illness or disability, and those who have nearly completed their sentences. If the population of this prison doesn’t decrease significantly, people are going to die”.

Daniel Marx, another partner at the law firm, also noted that an outbreak at FMC Devens could threaten people outside of the facility. “The notion that public safety trumps prisoner health is based on a false choice: failing to stop preventable outbreaks of COVID-19 in prisons not only violates the Constitution, but it also threatens all our of lives. This deadly virus doesn’t stop at national borders, and it certainly won’t stop at prison walls. That is why everyone, including prisoners, must be able to practice effective social distancing”.

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FMC Devens Has Allegedly Not Discharged Inmates

Despite receiving explicit directions from U.S. Attorney General William Barr, FMC Devens has subsequently discharged very few inmates (As of April 16^th, the facility was still running at almost 90% capacity with 906 inmates in its Medical Center – and another 108 in its Camp).

In his  March 26^th memorandum to BOP Director Carvajal, Barr identified home confinement as “One of the BOP’s tools to manage the prison population and keep inmates safe” from COVID-19. He further directed Carvajal “…to prioritize the use of [the BOP’s] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” because “for some eligible inmates, home confinement might be more effective in protecting their health”.  

It is not known whether any prisoners at FMC Devens have been released per the directives set forth in Barr’s memorandum.

What is known is that the BOP has done a great job of releasing “celebrity inmates” like Michael Avenatti and Michael Cohen out of concern that they may contract COVID-19 while in prison.

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Petitioners Request for Information and Documents Is Denied

Attorneys for the Petitioners in the Massachusetts lawsuit requested that an emergency status conference be held on Monday, April 20^th – and that the Respondents be forced to turn over certain information and documents before then.

The information and documents they were seeking included the following:

1. The number of available COVID-19 tests at the facility;
2. The number of N95 masks at the facility;
3. The number of ventilators at the facility;
4. All the facility’s written policies and procedures concerning the transfer of prisoners to outside hospitals;
5. All the facility’s written policies and procedures concerning COVID-19; and
6. All the facility’s written policies and procedures for identifying and approving prisoners for compassionate release and/or transfer to home confinement.

In addition to the above, the Petitioners’ attorneys also requested the judge to order the Respondents to henceforth file reports every Tuesday and Thursday with respect to the following statistical information at FMC Devens:

1. The total prisoners at FMC Devens (with the figures broken down for the Medical Center and the Camp);
2. The number of inmates who have been tested for COVID-19, the results received, and the number of positive cases;
3. The number of staff who have been tested for COVID-19, the results received, and the number of positive cases;
4. The number of inmates who have been isolated or quarantined due to COVID-19 symptoms and/or due to exposure to persons with such symptoms;
5. The number of inmates who have been transferred to outside hospitals for (a) treatment of presumed or confirmed COVID-19, and (b) all other reasons;
6. The number of inmates who, since March 1, 2020, have died from (a) presumed or confirmed COVID-19, and (b) all other causes;
7. The number of inmates who, since March 26, 2020, have (a) been approved for compassionate release, and (b) actually been released from the facility; and
8. The number of inmates who, since March 26, 2020, have (a) been approved for home confinement, and (b) actually been transferred from the facility to home confinement.

The requested status conference has not yet been scheduled. And earlier today, the judge denied, in its entirety, the Petitioners’ request for information and documents.

Stay tuned…we’ll have more to report on this case as it unfolds.

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Here is the initial filing in the case: Document 1 – Petition (04.15.2020)

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[Editor’s Note: During World War I, the FMC Devens facility operated as Camp Devens – and housed thousands of soldiers. During the so-called Spanish Flu of 1917-1918, more than 15,000 residents at the camp were infected – and more than 800 of them died.]

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K.R. Claviger