BUTNER — Inmates represented by the American Civil Liberties Union and other groups have once again sued federal officials over the management of the COVID-19 outbreak at the Butner federal prison.
Filed Monday, the lawsuit’s factual and legal claims to a large degree parallel those of a previous inmate lawsuit filed in May that attorneys for the inmates shut down after a judge refused to issue an injunction in the case.
It adds, however, a claim that prison officials are discriminating against the disabled by failing to institute an infection-prevention program that would allow them access to key services without having to risk exposure to the coronavirus.
Since the spring, “there has been the opportunity to develop appropriate procedures to address the risks of COVID-19” and yet the Federal Bureau of Prisons and the Butner prison’s leadership have “failed to address the risk of harm,” ACLU of North Carolina spokeswoman Citlaly Mora said.
Mora also noted that in recent days there has been “a frightening and dramatic increase of cases” in Butner’s prison hospital, “where many of the most vulnerable people in the [federal prison system] are housed.”
The Federal Bureau of Prisons reported on Tuesday that 51 inmates housed in the prison hospital and four members of the prison staff who work in the hospital have active cases of COVID-19. The numbers represent a sharp break with trends that saw case counts at the prison fall in August, September and part of October.
There are currently five cases — afflicting two inmates and three staff members — elsewhere in the Butner complex.
The legal team that filed the case is directly representing 10 inmates, the most prominent once again being Charles Hallinan, a 79-year-old former Philadelphia financier dubbed “the godfather of payday lending” who’s serving a 14-year prison sentence on racketeering and other charges.
The new lawsuit alleges that Hallinan and another of his fellow plaintiffs, Terrance Freeman, have tested positive for COVID-19 and that two others — George Riddick and William Brown — have experienced known symptoms of the infection.
Nine of the 10 plaintiffs have chronic medical problems, including cancer and kidney transplants that lower their resistance to infection. Lawyers want the case made a class action status on behalf of all Butner inmates.
They also note that one of the inmates they represented in the original lawsuit, John Dailey, now is among the 26 Butner inmates who’ve died after contracting COVID-19.
The disease also claimed the life of a Winston-Salem woman who worked as a guard in the prison’s minimum-security unit.
Substantively, the inmates and they lawyers contend that officials aren’t doing enough testing to identify prisoners and staff at Butner who have the virus, that the use of masks in the close quarters of the complex is spotty, that there’s no enforcement of social distancing in lines for medicines, food, telephones and computers, and that there aren’t sufficient limits on movement between units to control the spread of the disease.
They contend prison officials have made poor use of the prison hospital, often waiting until a COVID-19 sufferer experiences respiratory failure before sending him to an off-campus hospital for care. Though it went unmentioned in the lawsuit, the prison’s known to send its severe COVID-19 cases to Duke University Hospital in Durham.
Care practices at Butner have been spotty enough in the pandemic that Hallinan and some of the other inmates suing have seen treatment plans for their prior health problems go begging, the lawsuit said.
Attorneys also said in the filing that the most recent inmate death at Butner, that on Sept. 17 of Ricky Lynn Miller, might have occurred because he “contracted the virus a second time.” Miller tested positive on June 1, negative on July 6 and positive again on Sept. 16.
Whether a prior case of COVID-19 confers any immunity from a second one remains one of the major unknowns about the coronavirus. The U.S. Centers for Disease Control earlier this month noted that its “antibodies have not been definitively correlated with protection of humans from infection.”
Monday’s lawsuit resurrects the claims of its predecessor that the prison’s handling of the pandemic amounts to a violation of the U.S. Constitution’s Eighth Amendment ban of cruel and unusual punishment.
The judge who heard the May lawsuit, U.S. District Court Judge Louise Flanagan, the following month said she wouldn’t issue an injunction because it’s far from obvious, legally, that inmates can use a habeas corpus claim to attack the constitutionality of the conditions of their confinement.
The appellate court that sets federal legal doctrine in North Carolina, the 4th U.S. Circuit Court of Appeals, hasn’t weighed in on that point at all and most of those that have elsewhere in the country have concluded they can’t, Flanagan said in June.
In Monday’s new filing, lawyers for the inmates acknowledged Flanagan’s ruling, but said they’re raising the constitutional point again “to preserve [it] for appeal purposes.”
The new discrimination claim invokes a 1973 law, the Rehabilitation Act, that forbids discrimination against the disabled in federal programs. The Rehabilitation Act is a precursor of the more widely known Americans With Disabilities Act of 1990, which targeted discrimination in the private sector and by state and local governments.
The lawsuit’s ultimate goal is forcing the government to expand the use of home confinement, furloughs, parole and other forms of early release to lower the inmate population at Butner, site of one of the most serious COVID-19 outbreaks in the entire federal prison system.
“Without action by this court, more people at Butner will become infected and more people will die,” the inmates’ attorneys said, adding that the 1,400 or so people who staff the prison and the surrounding community are also at risk.
“The immediate release of medically vulnerable people incarcerated at Butner will undoubtedly save lives,” the attorneys said in the lawsuit. “It is the sole effective remedy for the constitutional violations described.”
U.S. Attorney General William Barr has sanctioned an expanded use of home confinement, but only via a case-by-case review rather than as blanket policy. He’s also ruled out moving sex offenders into home confinement, and told prison officials to consider the “the danger posed by the inmate to the community” and the seriousness of their crimes as they weigh each case.
Inmates can go to court to request “compassionate release,” and to date 21 Butner inmates have won it “due to COVID-19 concerns,” the lawsuit said, citing each such case.
Contact Ray Gronberg at firstname.lastname@example.org or by phone at 252-436-2850.