Seeking to avoid court-ordered oversight at a federal jail in Brooklyn, New York, government lawyers argued in federal hearings in New York this week that widespread complaints of medical neglect and a scathing evaluation by an expert in correctional medicine who toured the facility should not be given credence.
Lawyers representing people in custody at the Metropolitan Detention Center are seeking a preliminary injunction that would force the jail to meet prescribed standards of medical care to protect vulnerable people held inside from the coronavirus, which has been exploding in jails and prisons across the country. Jail officials, on the other hand, have argued that the situation is under control.
Some of the evidence presented in court, however, tells a different story. Incarcerated people’s accounts — in the form of sworn declarations and the few fragments of medical requests that have so far been made public through the litigation — suggest that significant numbers of people detained inside MDC have experienced coronavirus symptoms and that their requests for care, in many instances, received no response.
The government, for its part, has worked in court to keep the incarcerated people’s medical complaints secret. Despite redactions to names and other identifying information, the federal Bureau of Prisons, which runs MDC, has insisted that allowing the public to see anonymized requests for medical care would violate the privacy of people in custody.
Parts of some medical requests were revealed when a lawyer representing incarcerated people read a few out in court hearings this week.
“I have had a persistent cough that just won’t get better,” wrote one person incarcerated at MDC. “I have also been sweating on and off randomly. Not sure what this is, but I have written you about a week ago about it and I still haven’t been seen. I hope this isn’t the virus symptoms.”
“Not sure what this is, but I have written you about a week ago about it and I still haven’t been seen. I hope this isn’t the virus symptoms.”
In court, federal prosecutors representing jail officials cast doubt on the veracity of the statements made by incarcerated people. Asked by the judge how he explains all the sick calls in which people said their prior medical calls hadn’t received a response, Assistant U.S. Attorney James Cho responded that asking the question involves “assuming that what they’re saying is true.”
Jails and prisons are by their nature opaque, and MDC Brooklyn has a particular reputation for attempting to hide humanitarian crises unfolding inside its walls from public view. However, this week’s hearings, effectively a miniature trial, have generated thousands of pages of evidence and witness testimony, shining a light on how a facility with a long record of medical neglect is handling the pandemic.
Jail officials and their lawyers from the office of the U.S. Attorney for the Eastern District of New York insisted that they are adequately protecting sick and elderly people from the disease, pointing to the fact that no one at the facility has died of Covid-19, and only five people in custody there have tested positive for the disease to date.
The litigation, however, has revealed that only 15 people at MDC have even been tested for the coronavirus and that far more have formally complained of symptoms. Jail staff aren’t screening people in custody for symptoms nor are they making any effort to track the number of people who complain of symptoms.
Among the most incendiary pieces of evidence is a report to the court of Homer Venters, a medical doctor and the former director of medical services for the New York City jails on Rikers Island. Venters was hired by the incarcerated petitioners to lead an inspection of MDC and his report, filed April 30, found “gross deviations from adherence to correctional standards of care and CDC guidance.” He warned that “there may be a significant number of cases of COVID-19 that are undetected.”
The Venters report set off a flurry of reaction on the government’s part. The next day, federal prosecutors from the Eastern District of New York filed court papers arguing that the report should be stricken from the public record, because they had expected that their deposition of Venters would be the only record made of his visit. The judge disagreed, suggesting that the government could hardly complain that it was being supplied with too much evidence.
The same day, the Bureau of Prisons was scrambling to produce its own report to counter Venters. Nicole English, the assistant director of the Health Services Division in the bureau’s central office, testified that on she got a call from the bureau’s deputy director on May 1, directing her to assemble a team to lead the agency’s self-inspection. When she arrived at MDC with her team the next day, neither the warden nor his regional supervisor knew she was coming, English testified. Saturdays are usually the Warden’s day off, English said, but he was at the jail when she arrived, a fact she took as evidence of his dedication to his work.
“Allegations made through outside stakeholders were not entirely accurate,” English concluded in her report, refuting Venters. “During the unannounced visit, staff and inmates appeared to have and be properly utilizing PPE and sanitation supplies; staff morale appeared to be high; and inmate complaints were minor.”
In a third inspection of the jail, a former jail administrator hired by the Bureau of Prisons toured parts of the facility and interviewed officials about their policies. He, too, concluded that MDC was performing its duties admirably.
The government’s reassuring self-assessments contradict not only the Venters report, but also the words of the people held in custody. Lawyers for people held at MDC assembled a raft of sworn declarations from people currently inside the jail or recently released from it alleging medical neglect.
The government has resisted demands to turn over all records of requests for medical care made in recent months, but what it has turned over paints a frightening picture. The requests themselves are under seal, but, in a hearing Thursday, Katie Rosenfeld, a lawyer with Emery, Celli, Brinkerhoff & Abadi representing people in custody, read aloud from portions of eight of them, all complaining of Covid-19-related symptoms, many of them suggesting that previous pleas for medical care had been ignored.
“I have dry cough, dryness and itching on my throat, especially when I’m sleeping it gets worse, chest pain and pressure. I have sent several sick calls out to medical and I haven’t heard back.”
“I have dry cough, dryness and itching on my throat, especially when I’m sleeping it gets worse, chest pain and pressure,” wrote one person. “I feel very fatigued and weak, I have sent several sick calls out to medical and I haven’t heard back.”
“I sent a sick call request to this department at least a month ago and I still haven’t gotten a response due to the headaches I have been having,” wrote a second person. “I now have a cold that I can’t get rid of. My main concern is the headaches. I need to see someone ASAP. I have been dealing with this issue for a month now, and I still haven’t gotten a response.”
A third person wrote about having trouble breathing. “I already brought my medical concern to your attention, but I have not received any response,” they wrote. “Can you please put me in to see the medical department?”
“This is going to be my last message,” another incarcerated person wrote. “I have been in pain for 11 days and now I feel like I am getting a fever, and medical hasn’t sent me down to check on me and I am now feeling worse than ever and we have been locked in for two days and I am in a lot of pain.”
“I have put in sick call in to no avail,” wrote another person held in MDC. “I am having trouble breathing and getting good oxygen. I wake up having breathing issues and go to bed with the same. I had lung surgery in 2006, my capacity is compromised as it is. I was referred to psych and not taken seriously by the doc. I am not a whiner and there is an issue here. Could it please be addressed or at the very least well documented that I tried? Thanks for your time and consideration.”
Don’t these sick call requests cast doubt on the Bureau of Prisons’ insistence that medical staff make frequent rounds and that Covid-19-related symptoms are evaluated promptly? Judge Rachel Kovner asked Cho, the assistant U.S. attorney, on Thursday.
Cho questioned whether the people were telling the truth in their requests for medical care.
“Is that your response?” Kovner asked. “That all of these emails, the sick calls, saying, ‘Please come see me’ — that it’s not accurate, that that’s not what happened?”
“Is that your response? That all of these emails, the sick calls, saying, ‘Please come see me’ — that it’s not accurate, that that’s not what happened?”
“The inmates may be complaining,” Cho said, “but there’s a comparable response from the MDC.”
While the government has pointed to policies and protocols intended to protect people in custody from Covid-19, it hasn’t produced evidence to contradict incarcerated people’s claims that those policies aren’t actually being carried out.
In his cross-examination of Venters, Cho argued that the doctor’s conclusions were overly reliant on his conversations with incarcerated people and that he had no other evidence that requests for medical attention aren’t responded to promptly.
“You have no knowledge as to whether a health care provider is responsive to call requests, do you?” Cho asked.
“That is the crux of the failure,” Venters replied. “The system is set up to make that unknowable.”
Among the most explosive elements of Venters’s report was his contention that MDC is destroying medical records as part of a deliberate effort to obscure the scope of coronavirus infection at the jail. Until a recent court order, jail staff were shredding the paper sick call requests that incarcerated people are using during the current lockdown because of the limited access to the computerized medical request system. Venters suggested that the shredding practice constitutes an unconscionable destruction of medical records. Without the information on those slips, he noted, there is no record of how long people are waiting for medical care — or of whether the care they eventually get is even appropriate to their original complaint. Especially important during a pandemic, the destruction of that information also leaves jail staff and everyone else in the dark about the spread of coronavirus symptoms.
Lawyers for people in custody at MDC went a step further, arguing in court filings last week that the destruction of these slips, which continued for months after they first filed their lawsuit, constitutes the deliberate destruction of evidence for which the government should be sanctioned.
Faced with the possibility of these consequences, government lawyers reversed themselves in the minutes before opening arguments began in this week’s hearing. They had repeatedly told their opponents and the court that information from paper sick call requests couldn’t be turned over because the slips themselves are destroyed, and “there is no centralized repository of hard copy sick call requests.” Therefore, there was nothing to be turned over as evidence. At the outset of the hearing, the government informed the court that it shouldn’t be sanctioned because information from the slips actually is preserved in a computer system after all.
Lawyers for the incarcerated petitioners expressed astonishment; if the records do exist, they haven’t been turned over.
“The issue in this case is the discrepancy between the reports of the clients and their reports of symptoms and what the facility says is happening,” Rosenfeld said. “That is the key evidence here and we don’t have it.”
Assistant U.S. Attorney Seth Eichenholtz told the court that while the government does have the records, they’re not ready to turn them over yet. “This has kind of been an evolving process,” he said.
Kovner directed the Bureau of Prisons to turn over its electronic records as soon as possible. The judge has yet to rule on the motion for a preliminary injunction. She asked both parties to consider whether some parts of their dispute might be resolved through mediation.