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June 10, 2020

Split Sixth Circuit panel vacates district court order to transfer vulnerable prisoners "out of Elkton through any means"

A few months ago, as detailed here, US District Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison in Ohio.  Federal officials appealed this order to the Sixth Circuit, but a Sixth Circuit panel refused initially to stay it, and thereafter Judge Gwin issued this follow-up order which stated that "Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order."  The feds ultimately was able to get these actions stayed by the Supreme Court, and late yesterday a split Sixth Circuit panel vacated the injunction upon concluding, by a 2-1 vote, "that the district court abused its discretion in granting the preliminary injunction."

This Politico piece, headlined "Appeals court nixes order to shrink prison rolls because of virus," provides a usefully summary of the nearly 30 pages of opinions:

A divided federal appeals court has overturned a judge's order that required a federal prison in Ohio hard hit by the coronavirus to cut its inmate population by sending medically vulnerable prisoners home or to other prisons. A panel of the 6th U.S. Circuit Court of Appeals split 2-1 as it struck down the lower court's order to thin the ranks at the Elkton Federal Correctional Institution in Lisbon, Ohio, after a Covid-19 outbreak there that has cost 19 lives. More than a quarter of the roughly 2,000 inmates at Elkton have tested positive for the virus.

U.S. District Judge James Gwin ruled in April that prison officials were not doing enough to mitigate the danger to inmates. He ordered that officials transfer or release elderly prisoners and those with health conditions believed to lead to serious illness from the coronavirus.

However, the appeals court's majority said the steps the Bureau of Prisons took — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — meant officials were not deliberately endangering prisoners in a way that made their punishment "cruel and unusual" under the Constitution. "The BOP argues that these actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment. We agree," Judge Julia Gibbons wrote, joined by Judge Deborah Cook.

BOP was slow to roll out widespread testing at Elkton, even as Ohio state officials moved much faster to get mass testing underway at one of their badly hit prisons. But Gibbons said the federal officials' effort met the legal standard. "The BOP initally struggled to scale up its testing capacity just before the district court issued the preliminary injunction, but even there the BOP represented that it was on the cusp of expanding testing. The BOP’s efforts to expand testing demonstrate the opposite of a disregard of a serious health risk," she wrote. Gibbons also chided Gwin for failing to address "how the released inmates would look after themselves."

Chief Judge R. Guy Cole Jr. dissented, saying federal officials were too slow to respond to the rising death toll at the prison. "I am left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim," Cole wrote.

Cole also faulted the Bureau of Prisons for offering action plans detailing a multiphase response, where the details left much to be desired. One phase consisted entirely of gathering and inventorying cleaning supplies, he wrote. "The BOP’s multiphase response does not include a single phase that allows for meaningful social distancing," the judge added.

The 6th Circuit panel split along ideological lines. Gibbons and Cook are appointees of President George W. Bush. Cole was appointed by President Bill Clinton.

Advocates for inmates expressed disappointment in the decision. “Today’s ruling is a major loss for incarcerated people who are at risk from this deadly disease,” said David Carey of the ACLU of Ohio, which brought the lawsuit. “With hundreds of people currently sick, and nearly everyone else at Elkton exposed, the federal government has a duty to take quick and decisive action."

Prior related posts:

June 10, 2020 at 12:48 PM | Permalink


Given the importance of these CV-19 BOP response issues and the 2-1 panel split, it seems to me that there is a reasonable chance that a Petition for Rehearing En Banc could be granted, before this case inevitably heads up to the U.S. Supreme Court.

Posted by: James Gormley | Jun 11, 2020 12:22:00 AM

The 6th Circuit is the most conservative circuit in the country, James. There is no chance a en banc petition would be granted. Zero.

Posted by: Bob Loblaw | Jun 11, 2020 9:53:40 PM

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