Banks v. Booth

Full title: EDWARD BANKS, et al., Plaintiffs v. QUINCY L. BOOTH, et al., Defendants

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Date published: Jun 18, 2020

468 F. Supp. 3d 101 (D.D.C. 2020)

Opinion

Civil Action No. 20-849 (CKK)

06-18-2020

Edward BANKS, et al., Plaintiffs v. Quincy L. BOOTH, et al., Defendants

Jacob Kreilkamp, Pro Hac Vice, Munger, Tolles & Olson LLP, Los Angeles, CA, 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.

COLLEEN KOLLAR-KOTELLY, United States District Judge

Jacob Kreilkamp, Pro Hac Vice, Munger, Tolles & Olson LLP, Los Angeles, CA, 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

This case is brought by various inmates of the District of Columbia's Department of Corrections ("DOC") detained in the Central Detention Facility ("CDF") and the Correctional Treatment Facility ("CTF"). Plaintiffs bring claims against Quincy Booth, in his official capacity as Director of the DOC, and Lennard Johnson, in his official capacity as Warden of the DOC. Plaintiffs’ claims relating to the conditions of their confinement during the COVID-19 pandemic are brought pursuant to the due process clause of the Fifth Amendment of the United States Constitution and the Eighth Amendment of the United States Constitution. Plaintiffs’ claims relating to release from confinement are brought pursuant to writs of habeas corpus.

Before the Court is Plaintiffs’ [70] Amended Motion for a Preliminary Injunction, which is opposed. Upon consideration of the pleadings,¹ the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs’ [70] Motion. The Court concludes that Plaintiffs have shown a likelihood of success on the merits, irreparable harm, and that the balance of the equities and the public interest favors injunctive relief. However, as will be further explained below, the Court concludes that some of the relief requested by Plaintiffs is not appropriate at this time.

1 The Court's consideration has focused on the following documents:

• Pls.’ Am. Mot. for a PI ("Pls.’ Mot."), ECF No. 70;

• Opp'n by U.S. to Pls.’ Mot. for a PI ("Def. U.S.’s Opp'n"), ECF No. 80;

• Defs.’ Opp'n to Pls.’ Am. Mot. for a PI ("D.C. Defs.’ Opp'n"), ECF No. 82;

• Pls.’ Reply Brief in Support of Am. Mot. for a PI ("Pls.’ Reply"), ECF No. 89;

• Defs.’ Notice of Supp. Decs. ("Defs.’ Notice"), ECF No. 94;

• Defs.’ Notice of Supp. Authority ("Defs.’ Auth."), ECF No. 95; and

• Pls.’ Res. to Defs.’ Notice of Supp. Authority ("Pls.’ Res."), ECF No. 96.

I. BACKGROUND

The Court previously recounted the background of this case in its Memorandum Opinion granting Plaintiffs’ Motion for a Temporary Restraining Order ("TRO"). ECF No. 51. However, for ease of reading, the Court shall recount that background here.

Prior to proceeding through the procedural background of this case, the Court notes that the hearings held in this matter have been conducted either telephonically or through video conferencing. Due to the restrictions of the COVID-19 pandemic, the United States District Court for the District of Columbia postponed all civil hearings to occur before July 15, 2020. In Re: Further Extension of Postponed Court Proceedings in Standing Order 20-9 and Limiting Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-29 (BAH), May 26, 2020. As such, in compliance with the standing order and recommended precautionary measures, the Court has conducted these emergency matters virtually.

On March 30, 2020, Plaintiffs filed their Complaint in this matter. That same day, Plaintiffs also filed a Motion to Certify a Class of all persons confined or to be confined in DOC facilities, a Motion for a TRO, and a Motion for a Preliminary Injunction. ECF Nos. 3, 5, 6.

On March 31, 2020, the Court ordered that a teleconference be held to discuss scheduling for Plaintiffs’ pending Motion for a TRO. March 31, 2020 Minute Order. During the hearing, the Court ordered Defendants to provide specific, relevant information to the Court over the following two days. For example, the Court ordered Defendants to provide a list of the names of the approximately 94 inmates who had been sentenced to misdemeanors and who could be released; the numbers of people who had been tested for COVID-19 and a break-down of the identities of those individuals (such as inmates, visitors, etc.) and the results of those tests; the date on which Defendants began testing people coming into the jails; the number and a breakdown of the results of COVID-19 tests which had been done on those who were incarcerated prior to the date on which Defendants began testing all incoming inmates; all relevant written procedures and practices concerning COVID-19; and Defendants’ process which was in place or would be put in place to allow legal counsel to communicate with their clients electronically or by other means. April 1, 2020 Minute Order. The Court also ordered Defendants to provide Declarations about the processes and procedures in place and the conditions of DOC facilities in light of COVID-19. Id. The Court further set a briefing schedule for Plaintiffs’ Motion for a TRO and stayed Defendants’ Responses to Plaintiffs’ Motion for a Preliminary Injunction, Complaint, and Motion for Class Certification pending the resolution of the TRO. Id. A court reporter was present at the hearing, and a transcript of the hearing is on the docket. ECF No. 18.

On April 1, 2020 and April 2, 2020, Defendants filed Responses to the Court's Order. ECF Nos. 19, 20, 21.

On April 2, 2020, the Fraternal Order of Police for the District of Columbia Department of Corrections Labor Committee filed for leave to submit an amicus curiae brief in support of Plaintiffs’ Motion for a TRO. ECF No. 23. After considering Defendants’ opposition, the Court granted the motion, finding that the amicus brief could assist the Court in its analysis of certain, relevant issues. April 3, 2020 Minute Order.

On April 3, 2020, Plaintiffs filed an Emergency Motion to Expedite the Hearing on the Application for a TRO. ECF No. 24. In consideration of Plaintiffs’ arguments, the Court scheduled a videoconference on the merits of Plaintiffs’ Motion for a TRO for April 7, 2020. April 3, 2020 Minute Order.

Prior to the hearing on Plaintiffs’ Motion for a TRO, Defendants filed their Opposition to Plaintiffs’ Motion for a TRO on April 3, 2020, and Plaintiffs filed their Reply in support of their Motion on April 4, 2020. ECF Nos. 25, 26.

On April 7, 2020, the court conducted a two-hour video conference on the merits of Plaintiffs’ Motion for a TRO. A court reporter was present, and a transcript of the hearing is on the docket. ECF No. 37. Also on that day, the Court conducted a second teleconference with the parties. The parties determined that they would confer and propose names for an amicus of the Court to inspect the conditions of CTF and CDF. April 8, 2020 Minute Order.

On April 8, 2020, the Court again conducted a teleconference with the parties to ascertain their proposed amicus of the Court. The parties ultimately agreed to the appointment of Grace Lopes and Mark Jordan as amici of the Court to provide information on the actual conditions of CTF and CDF and to make findings on Defendants’ responses to COVID-19. A court reporter was present, and a transcript of the hearing is on the docket. ECF No. 33. On April 9, 2020, the Court issued a consent order appointing Ms. Lopes and Mr. Jordan as amici. ECF No. 34.

The amici reviewed records from the DOC facilities and conducted unannounced and unescorted site visits on multiple shifts at both CDF and CTF on April 10, 11, and 12, 2020. Defendants cooperated with amici in providing them with necessary materials and in providing them access to the facilities, staff, and inmates during their visits.

On April 15, 2020, the Court held a telephone conference at which the amici presented their oral preliminary findings and both parties as well as the Court asked questions. A court reporter was present, and a transcript of the hearing is on the docket. ECF No. 45.

On April 18, 2020, the amici submitted their final written report. Attachment 1.² The Court incorporates that report into this Memorandum Opinion. The Court further notes that on April 17, 2020, following the amici's oral presentation of their preliminary findings, Mr. Booth provided a memorandum to all DOC employees and contractors entitled "Reminders and Updated COVID-19 Policies and Procedures." Exhibits to Report Submitted by Amicus Curiae, Attachment 2, Ex. 11. In this memorandum, Mr. Booth addressed some of the deficiencies identified by the amici.

2 On April 19, 2020, the amici filed a corrected version of their Report with minor edits. The corrected version is attached to this Memorandum Opinion.

On April 19, 2020, the Court granted in part and denied in part Plaintiffs’ motion for a TRO. Specifically, the Court ordered that Defendants follow many of the recommendations set out in the amici report relating to the conditions of confinement at DOC facilities. However, the Court did not order the release of any inmates. ECF Nos. 50, 51.

On April 22, 2020, the Court held a teleconference during which the parties agreed to propose a schedule for briefing Plaintiffs’ Amended Motion for Preliminary Injunction. April 23, 2020 Minute Order. A court reporter was present, and a transcript of the hearing is on the docket. ECF No. 57.

On April 28, 2020, the Court entered a consent Order setting out a schedule for briefing on Plaintiffs’ Amended Motion for a Preliminary Injunction, structuring the role of the amici, and extending the TRO Order pending the Court's resolution of Plaintiffs’ Amended Motion for a Preliminary Injunction. ECF No. 62.

On May 1, 2020, the Court issued a Memorandum Opinion and Order joining the United States as a necessary party limited to issues involving the release of inmates under Plaintiffs’ claims for writs of habeas corpus. ECF Nos. 63, 64.

On May 11, 2020, the Court held a telephone conference at which the amici presented their oral preliminary findings in response to particular questions and both parties as well as the Court asked additional questions. A court reporter was present, and a transcript of the hearing is on the docket. ECF No. 69, Attachment 3. And, on May 22, 2020, the amici submitted their final written report. Attachment 4. The Court incorporates that report into this Memorandum Opinion. The Court has excerpted portions of the report in this Memorandum Opinion, focusing on the issues which are most exigent and most relevant to the resolution of Plaintiffs’ Amended Motion for a Preliminary Injunction.

As explained in the report, in preparation for their oral findings and their final written report, the amici reviewed records from the DOC facilities, conducted telephonic and in-person interviews with members of the DOC, and conducted unannounced and unescorted site visits on multiple shifts at both CDF and CTF on May 7 and 8, 2020. Amici also conducted an unannounced and unescorted site visit at CDF during the PM shift on May 14, 2020. Defendants cooperated with amici in providing them with necessary materials and in providing them access to the facilities, staff, and inmates during their visits.

Finally, on May 27, 2020, the Fraternal Order of Police for the District of Columbia Department of Corrections Labor Committee filed for leave to submit an amicus curiae brief in support of Plaintiffs’ Amended Motion for a Preliminary Injunction. ECF No. 83. After considering Defendants’ opposition, the Court granted the motion, finding that the amicus brief could assist the Court in its analysis of certain, relevant issues. June 8, 2020 Minute Order.

In resolving Plaintiff's Amended Motion for a Preliminary Injunction, the Court relies on the record evidence as it currently stands, including the findings in the amici's final report. In consideration of the above information, the materials which have been provided, and the present factual record, the Court now issues its decision on Plaintiffs’ Amended Motion for a Preliminary Injunction.

II. LEGAL STANDARD

A preliminary injunction is an extraordinary form of relief. An application for a preliminary injunction is analyzed using factors applicable to a motion for a TRO. See, e.g., Gordon v. Holder , 632 F.3d 722, 723-24 (D.C. Cir. 2011) (applying preliminary injunction standard to district court decision denying motion for TRO and preliminary injunction); Sibley v. Obama , 810 F. Supp. 2d 309, 310 (D.D.C. 2011) (articulating TRO elements based on preliminary injunction case law).

Preliminary injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Sherley v. Sebelius , 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ); see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) ("[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing , carries the burden of persuasion." (internal quotation marks omitted)). A plaintiff seeking preliminary injunctive relief "must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Aamer v. Obama , 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley , 644 F.3d at 392 (quoting Winter , 555 U.S. at 20, 129 S.Ct. 365 ) (alteration in original; internal quotation marks omitted)). When seeking such relief, "the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction." Abdullah v. Obama , 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp. , 571 F.3d 1288, 1292 (D.C. Cir. 2009) ) (internal quotation marks omitted). "The four factors have typically been evaluated on a ‘sliding scale.’ " Davis , 571 F.3d at 1291. Under this sliding-scale framework, "[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor." Id. at 1291-92.

The Court notes that it is not clear whether the United States Court of Appeals for the District of Columbia Circuit's ("D.C. Circuit") sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court's decision in Winter . See Save Jobs USA v. U.S. Dep't of Homeland Sec. , 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several judges on the D.C. Circuit have "read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.’ " Sherley , 644 F.3d at 393 (quoting Davis , 571 F.3d at 1296 (Kavanaugh, J., concurring)). However, the D.C. Circuit has yet to hold definitively that Winter has displaced the sliding-scale analysis. See id. ; see also Save Jobs USA , 105 F. Supp. 3d at 112. In light of this ambiguity, the Court shall consider each of the preliminary injunction factors and shall evaluate the proper weight to accord the likelihood of success only if the Court finds that its relative weight would affect the outcome.

III. DISCUSSION

The Court will proceed to analyze each of the requirements for granting a preliminary injunction.

A. Likelihood of Success on the Merits

The Court will begin by analyzing whether or not Plaintiffs have shown a likelihood of success on the merits of their constitutional claims for inadequate conditions of confinement and their habeas claims for release of inmates.

1. Conditions of Confinement

In order to meet the first requirement for granting injunctive relief on their conditions of confinement claims, Plaintiffs must show that they have a likelihood of success on the merits of their Fifth Amendment claim for pre-trial detainees and of their Eighth Amendment claim for post-conviction detainees. The Court concludes that Plaintiffs have made a sufficient showing as to some of the conditions of their confinement.

It is undisputed that the proper avenue for relief for pre-trial detainees, such as Plaintiffs Phillips and Smith, is the Fifth Amendment due process clause and the proper avenue for relief for post-conviction detainees, such as Plaintiff Banks, is the Eighth Amendment. However, the parties dispute whether or not the standards for sustaining a claim under the different Amendments are the same. The parties agree that to show a violation of the Eighth Amendment, jail officials must have (1) exposed inmates to an unreasonable risk of serious damage to their health and (2) acted with deliberate indifference in posing such a risk. D.C. Defs.’ Opp'n, ECF No. 82, 25. However, the parties disagree on the standard for showing a violation of the Fifth Amendment. Defendants contend that the two standards are the same. Id. at 26. However, under the due process clause, Plaintiffs argue that they need only show that the Defendants knew or should have known that the conditions posed an excessive risk to the health of the inmates. The main difference being that the due process clause analysis does not require a finding of deliberate indifference. As explained in the Memorandum Opinion granting Plaintiffs’ Motion for a TRO, the Court agrees with Plaintiffs. ECF No. 51, 9-12.

The rights of pre-trial detainees are different than the rights of post-conviction detainees. Because pre-trial detainees are presumed innocent, they are "entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Youngberg v. Romeo , 457 U.S. 307, 322, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). "While a convicted prisoner is entitled to protection only against ‘cruel and unusual’ punishment [under the Eighth Amendment], a pretrial detainee, not yet found guilty of any crime, may not be subjected to punishment of any description." Hardy v. District of Columbia , 601 F. Supp. 2d 182, 188 (D.D.C. 2009) (quoting Hill v. Nicodemus , 979 F.2d 987, 991 (4th Cir. 1992) ).

In Kingsley v. Hendrickson , 576 U.S. 389, 135 S. Ct. 2466, 192 L.Ed.2d 416 (2015), the United States Supreme Court considered the differences between pre-trial and post-conviction detainees in deciding that, to state an excessive force claim, a pre-trial detainee need only show that the use of force was objectively unreasonable. 135 S. Ct. at 2473-74. The officers’ subjective state of mind in using the force was irrelevant. Id. While Kingsley relates to excessive force rather than prison conditions, in making its decision, the Kingsley court relied on Bell v. Wolfish , 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), a case pertaining to prison conditions. According to the Kingsley court, "as Bell itself shows (and as our later precedent affirms), a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose." Id. Together Kingsley and Bell provide persuasive authority that a pre-trial detainee need only show that prison conditions are objectively unreasonable in order to state a claim under the due process clause.

The parties did not cite, and the Court could not find, a D.C. Circuit case interpreting Kingsley in the context of a claim for deficient prison conditions. However, many circuit courts have extended Kingsley's objective standard to apply to other due process claims by pre-trial detainees. For example, the United States Court of Appeals for the Second Circuit has held that, following Kingsley , in the context of challenged prison conditions for pre-trial detainees, "the Due Process Clause can be violated when an official does not have subjective awareness that the official's acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm." Darnell v. Pineiro , 849 F.3d 17, 35 (2d Cir. 2017) ; see also Castro v. County of Los Angeles , 833 F.3d 1060, 1070 (9th Cir. 2016) (applying Kingsley standard to failure to protect claims by pre-trial detainees); Hardeman v. Curran , 933 F.3d 816, 823 (7th Cir. 2019) (finding that " Kingsley's objective inquiry applies to all Fourteenth Amendment conditions-of-confinement claims brought by pretrial detainees"). And, at least one district court within this Circuit has also applied Kingsley's objective standard to due process claims brought by pre-trial detainees. See United States v. Moore , Case No. 18-198-JEB, 2019 WL 2569659, *2 (D.D.C. June 21, 2019) (explaining that a pretrial detainee could prevail on a due process claim "if she either introduces evidence of a subjective intent to punish or demonstrates that a restriction is objectively unreasonable or excessive relative to the Government's proffered justification").

Based on the pertinent reasoning of Kingsley and the persuasive authority of other courts, the Court concludes that pre-trial detainee Plaintiffs Phillips and Smith do not need to show deliberate indifference in order to state a due process claim for inadequate conditions of confinement. As such, under the due process clause, pre-trial detainee Plaintiffs Phillips and Smith are likely to succeed on the merits by showing that the Defendants knew or should have known that the jail conditions posed an excessive risk to their health and intentionally or recklessly failed to act. And, under the Eighth Amendment, post-conviction detainee Plaintiff Banks must show that the jail conditions exposed him to an unreasonable risk of serious damage to his health and that Defendants acted with deliberate indifference in posing such a risk.

Despite recognizing that pre-trial detainee Plaintiffs need not demonstrate deliberate indifference to show a likelihood of success on their due process claims, the Court will also analyze the deliberate indifference prong as such a showing is still required for post-conviction Plaintiff's Eighth Amendment claim.

a. Unreasonable risk to Plaintiffs’ Health

Now that the Court has determined the standards under the due process clause and the Eighth Amendment, the Court will assess whether or not Plaintiffs have shown a likelihood of success in proving that they have been exposed to an unreasonable risk of damage to their health. Determining whether or not Plaintiffs have been exposed to an unreasonable risk is an objective analysis which "requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Helling v. McKinney , 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (emphasis in original). In sum, Plaintiffs "must show that the risk of which [they] complain[ ] is not one that today's society chooses to tolerate." Id.

Both parties and the Court recognize the seriousness of the threat posed by COVID-19. Despite the seriousness of the threat, in their briefing for Plaintiffs’ Motion for a TRO, Defendants argued that Plaintiffs were unlikely to succeed in establishing that they have been exposed to an unreasonable risk to their health. ECF No. 25, 15-17. While Defendants previously disputed the unreasonable risk factor, in their briefing for this Motion, Defendants make little mention of unreasonable risk, focusing instead on deliberate indifference.

Lacking substantial argument on this issue from Defendants, the Court finds that Plaintiffs have been exposed to an unreasonable risk to their health. It is undisputed that as of May 15, 2020, the rate of infection in DOC facilities was 13.5%, which is nearly 14 times higher than the rate of infection for other District of Columbia residents. Pls.’ Mot., ECF No. 70, 29. The Court notes that this percentage represents an increase from April 4, 2020, when the infection rate in DOC facilities was only 7 times the infection rate of the District of Columbia at large. ECF No. 51, 13.

In a supplemental declaration, Defendants state that on May 22, 2020, the DOC tested a sample of 304 asymptomatic DOC residents which revealed a positive testing rate of 4.6%. Dec. of Beth Jordan, ECF No. 94, ¶ 7. While any progress in decreasing the positive testing rate of asymptomatic inmates is to be lauded, such progress does not negate the fact that those detained in DOC facilities are far more likely to be exposed to and infected by COVID-19. Defendants further highlight a downward trend in the number of new positive cases. Again, the Court commends Defendants on this progress; however, this progress post-dates the Court's TRO Order and the mandated steps for improvement of conditions at DOC facilities. Additionally, Defendants’ identification of potentially infected inmates relies primarily on self-reporting, which may be affected by deficiencies with the sick call system and the punitive conditions of isolation units discussed further below. See Supra III.A.1.b.

Plaintiffs’ statistical data is also supported by Plaintiffs’ unrefuted expert declaration. In her Declaration, Dr. Jaimie Meyer, who reviewed reports on conditions in DOC facilities, reaffirmed that "people living and working in DC DOC facilities remain at risk of serious harm due to COVID-19 infection." Dec. of Jaimie Meyer, ECF No. 70-2, ¶ 3.

The Court further considers the conditions in the DOC facilities which pose an unreasonable risk of harm to Plaintiffs’ health. These conditions include issues with medical care, social distancing, sanitation, and conditions in isolation units. These conditions will be discussed in greater detail in the Court's discussion of deliberate indifference. See Infra Sec. III.A.1.b. However, for purposes of establishing an unreasonable risk to Plaintiffs’ health, the Court notes that Defendants’ policies, and the delayed and insufficient implementation of many of those policies, has prevented Plaintiffs from being able to take the preventative and precautionary steps that the larger, non-detained population has been able to take to slow the spread of COVID-19.

The Court recognizes that Defendants’ response to this sudden and unprecedented pandemic is ongoing. And, the Court recognizes that additional evidence will likely be provided as litigation proceeds. But, based on the current record, the Court credits Plaintiffs’ argument that they experience a significantly higher rate of infection and risk of harm than the population at large. Plaintiffs’ argument is supported by statistical evidence, Plaintiffs’ expert evidence, the declarations of DOC inmates and staff, and the amici reports. Accordingly, based on the limited record before the Court, the Court finds that Plaintiffs have established a likelihood that they will be able to show that they have been exposed to an unreasonable risk of damage to their health.

b. Deliberate Indifference

The Court will next determine whether or not Plaintiffs have shown a likelihood of success in establishing Defendants’ deliberate indifference. A showing of deliberate indifference requires "that officials had subjective knowledge of the serious medical need and recklessly disregarded the excessive risk to inmate health or safety from that risk." Baker v. District of Columbia , 326 F.3d 1302, 1306 (D.C. Cir. 2003). In order to establish deliberate indifference, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan , 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

There does not appear to be any dispute that Defendants are aware of the threat that COVID-19 poses to the health of Plaintiffs. Instead, the only dispute is whether or not Defendants have recklessly disregarded the risk to Plaintiffs’ health. In analyzing this standard, the Court recognizes that COVID-19 poses an unprecedented challenge and that the precautionary measures taken by Defendants are rapidly evolving.

In its Memorandum Opinion granting Plaintiffs’ TRO, the Court thoroughly recounted the conditions at DOC facilities as they stood at that time. ECF Nos. 50, 51. The Court will not recount that information in full and instead fully incorporates its findings from that Memorandum Opinion. Instead, the Court will focus on any new arguments presented by the parties. The Court will focus on difficulties noted in providing medical care to inmates in the general population units, in social distancing, in sanitation, in conditions on isolation units, and in access to legal calls.

To begin, the Court notes that much of Defendants’ argument opposing injunctive relief is based on steps which Defendants have taken subsequent to the Court's TRO Order to remedy the cited deficiencies. While the Court appreciates that efforts have been made to improve conditions, "Defendants cannot claim that the need for an injunction is now moot because the [Defendants have] ‘ceased [their] wrongful conduct.’ " Costa v. Bazron , Case No. 19-3185, 464 F.Supp.3d 132, 141 (May 24, 2020 D.D.C.) (quoting Taylor v. Resolution Trust Corp. , 56 F.3d 1497 (D.C. Cir. 1995) ). The inability of Defendants’ actions to moot the need for injunctive relief is true particularly where those actions "follow[ed] the entry of a TRO." Id. A " ‘court's power to grant injunctive relief survives discontinuance of the illegal conduct,’ ... because the ‘purpose ... is to prevent future violations.’ " 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) (quoting United States v. W.T. Grant Co. , 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) ). In so finding, the Court is in no way impugning the good faith behind Defendants’ efforts to ameliorate conditions at DOC facilities. However, "[i]f compliance with the terms of a TRO were sufficient to defeat entry of a preliminary injunction, few—if any—cases would make it past the TRO stage." Costa , 464 F.Supp.3d at 142, 2020 WL 2735666, at *4.

The Court begins by assessing Defendants’ efforts in supplying general population inmates with adequate medical care. During their oral presentation, amici "described significant barriers to access to health care" for inmates on non-quarantine, non-isolation units. Attachment 4, 9. Most inmates who access care on general population units rely on the sick call process by which they request sick call forms from correctional officers and submit those forms to health care staff through designated collection boxes. Id. at 10. In their inspections, amici found that the sick call forms were not readily available to inmates and that many correctional officers were unable to produce the forms when requested to by amici. Id. ; see also Attachment 3, 17: 2-4. Without consistent access to sick call forms, "the sick call process does not provide reliable, timely access to health care for inmates." Attachment 4, 10. For example, at CDF, 20% of sick call forms were collected two to three days after submission and 5% were collected four days after submission. Attachment 3, 18: 16-22. And, at CTF, 24% of the sick call forms were collected two to three days after submission and 12% were collected 4 to 5 days after they were submitted. Id. at 18: 25-19: 3. In at least one case, an inmate at CDF had to wait over a week for medical assistance. Id. at 19: 22-23. Another inmate at CDF who requested care for COVID-19 symptoms was not seen for approximately four days and later tested positive for COVID-19. Id. at 20: 1-7.

The difficulties with obtaining medical care through the sick call process, which were documented by amici, are also supported by the declarations of various inmates. One inmate reported that "they ran out of sick slips" in his housing unit so no residents in that unit were able to utilize the system. Ex. 4, Dec. of LeDauntae Perry, ECF No. 70-5, ¶ 8. Another inmate reported that "[s]ick call slips and Inmate Grievance Procedure forms were not ... available on my unit between the dates of April 23, 2020 and May 12, 2020." Ex. 30, Dec. of Kenneth Knight, ECF No. 70-31, ¶ 5. A housing unit in CTF, which houses inmates over 50 years of age, reportedly did not have sick call slips "[f]or the entire week of May 4, 2020." Ex. 5, Dec. of Joseph Stankavage, ECF No. 70-6, ¶ 15. This delay in obtaining medical care allows those who may be infected with COVID-19 to spread the infection to others.

Defendants contend that, as of May 18, 2020, they have enhanced the sick call process by tasking medical providers with visiting housing units daily to retrieve sick call slips thus ensuring that inmates are seen by a high-level medical provider within 24 hours. Dec. of Beth Jordan, ECF No. 82-2, ¶ 9. However, it is not evident that this new system will address the issues that amici identified involving difficulties accessing sick call forms. Additionally, Defendants failed to make these improvements until recently, despite having been previously alerted to the insufficiencies with the medical care system in the Court's TRO Order. ECF No. 50, 1. And, the Court has no evidence as to how or whether this new procedure works in practice.

Defendants primarily rely on inmates to self-report symptoms of COVID-19. If inmates cannot adequately access medical care, then they will not be effectively or efficiently tested for infection. Absent testing, sick inmates may continue to reside in the general population and infect others. Following amici's initial report, Defendants were on notice of the deficiencies in the sick call process; however, many of these deficiencies continue to hinder Defendants’ response to the COVID-19 pandemic.

The Court next examines Defendants’ efforts in maintaining social distancing. In its TRO Memorandum Opinion, the Court described in detail the insufficiencies in social distancing practices at DOC facilities. ECF No. 51, 13-15. Following the TRO Order, amici have reported some improvements in social distancing practices. Amici cited additional educational materials on social distancing as well as reports that "staff are being disciplined for the failure to enforce social distancing." Attachment 3, 42: 14-16. Amici further reported that, because fewer inmates are allowed out of their cells at any given time, "at least some housing units are less chaotic." Id. at 43: 1-2. Despite these improvements, amici reported that social distancing in DOC facilities "certainly is not prevalent, certainly not during our visits." Id. at 42: 18-19. Amici further stated that "there still isn't a prevalence of social distancing." Id. at 43: 14-15. Amici attributed this deficiency, in part, to insufficient staffing on the housing units. Id. at 43: 16-18.

In arguing that it has made progress in enforcing social distancing, Defendants cite a decrease in the overall inmate population as well as an increase in the percentage of inmates housed in single cells. Dec. of Rena Chakraborty, ECF No. 82-3, ¶¶ 5-6. Defendants have also provided inmates and staff with increased educational information about social distancing. Dec. of Lennard Johnson, ECF No. 82-1, ¶¶ 6-7. Defendants echo the amici finding that staff are being monitored for inmate compliance with social distancing requirements and are being disciplined for failures. Id. at ¶ 6. Given the steps which have been taken to enforce social distancing, Defendants contend that they cannot be blamed for isolated instances of clustering.

The Court commends Defendants for their increased focus on social distancing policies. However, better policies mean little if they are not correctly implemented in practice. Daskalea v. District of Columbia , 227 F.3d 433, 442 (D.C. Cir. 2000) (explaining that "a ‘paper’ policy cannot insulate a municipality from liability where there is evidence, as there was here, that the municipality was deliberately indifferent to the policy's violation."). And, amici found more than isolated instances of clustering. They specifically stated that social distancing "is not prevalent." Attachment 3, 42: 18-19.

In addition to the amici findings, Plaintiffs have presented evidence that social distancing is still inadequately enforced. One inmate reported that he was never told to socially distance himself from others. Ex. 2, Dec. of Brian Thomas, ECF No. 70-3, ¶ 17. Another inmate on a different housing unit stated that, sometimes, more than 10 inmates are allowed out of their cells at one time, resulting in clustering. Ex. 11, Dec. of Tony Horne, ECF No. 70-12, ¶ 9. One inmate reported that, on May 12, 2020, DOC staff forced him into an elevator with approximately a dozen other inmates from various housing units to travel to the medical unit. Ex. 5, Dec. of Joseph Stankavage, ECF No. 70-6, ¶ 3. Once at the medical unit, the inmate had to await medical attention in a small room with 15 to 20 other inmates. Id. at ¶ 6. These inmate declarations are supported by video footage from DOC facilities showing approximately 10 inmates out of their cells congregating around telephones and DOC staff. Ex. 32.

As such, the Court finds that many of the deficiencies in social distancing practices which were identified in the Court's TRO Order remain present today. Plaintiffs have provided expert evidence that social distancing is a crucial part of containing the spread of COVID-19. Dec. of Marc Stern, ECF No. 1-1, ¶ 13. With the closures of schools, theaters, and restaurants, governments across the nation have emphasized social distancing as a way to slow the spread of the disease. In the District of Columbia, Mayor Muriel Bowser has implemented an order for social distancing which requires individuals "to maintain a distance of at least six (6) feet from persons not in their household." Phase One Order, https://coronavirus.dc.gov/phaseone (May 27, 2020). Despite widespread understanding of the importance of social distancing, Defendants have taken insufficient and delayed steps to ensure that social distancing is occurring consistently.

The Court next examines the status of sanitation efforts at DOC facilities. In its TRO Order, the Court noted the deficiencies in sanitation. The court ordered DOC to retain a registered sanitarian and to provide appropriate cleaning products, and training on the use of those products, to inmates and staff. ECF No. 50, 2-3. Defendants have made progress on ensuring adequate sanitation. Defendants have received authorization to post a vacancy for a full-time sanitarian at the DOC. Attachment 4, 14. Until a sanitarian can be hired, beginning on May 18, 2020, Defendants contracted with a vendor to provide services related to environmental health and safety. Id. Additionally, as of May 12, 2020, Defendants contracted for professional cleaning services on the secure and non-secure sides of the DOC facility, including the common areas of all housing units. Id. at 15. And, Defendants have created new protocols to ensure that cleaning supplies are available and to require correctional officers to verify that cells are cleaned daily. Dec of Michele Jones, ECF No. 82-6, ¶¶ 5, 9.

However, there are other aspects of sanitation which have not improved. The amici noted that during their visits, availability of cleaning materials and cleaning equipment was not uniform between the housing units. Attachment 3, 40: 24-41: 3. Defendants began providing inmates with paper towels sprayed with cleaning solution; however, because the paper towels are not absorbent, many inmates continue to have difficulties cleaning their cells. Id. at 41: 9-15. Some inmates continue to rely on ripped towels and ripped t-shirts to clean their cells. Id. at 41: 13-15. Amici noted that this issue is "[a]bout the same" as it was prior to the Court's TRO Order. Id. at 44: 2. Amici concluded that "appropriate sanitation is ... a continuing issue at both facilities, and clearly especially deficient at the jail [CDF]." Id. at 41: 20-22.

Plaintiffs have provided evidence from inmates which echoes these noted deficiencies. Many inmates explained that they lack cleaning supplies to clean their cells. See, e.g. , Ex. 14, Dec. of Delonte Ingraham, ECF No. 70-15, ¶ 47 ("On April 27, our unit ran out of cleaning supplies"); Ex. 16, Dec. of Jarvis Burl, ECF No. 70-17, ¶ 8 ("I have not been provided any cleaning supplies to clean my cell") Ex. 12, Dec. of Delonte Johnson, ECF No. 70-13, ¶ 3 ("During the period from April 22, 2020 to May 8, 2020 I did not have access to any chemicals to clean my cell"). At least one inmate reported having to clean the cells of inmates who tested positive for COVID-19 with Oasis Pro Laundry Fresh Room Refresher, a product which does "not have activity against and is not approved for disinfection for COVID-19." Ex. 1, Dec. of Jaimie Meyer, ECF No. 70-2, ¶ 11; Ex. 21, Dec. of Elijah Warren, ECF No. 70-22, ¶ 21. Even when residents have adequate access to cleaning materials, often they have not been informed on how to effectively use those materials. Ex. 14, Dec. of Delonte Ingraham, ECF No. 70-15, ¶ 44 ("Since April 19, my unit has not received any instructions on which cleaning chemicals to use on which surfaces").

Without proper cleaning materials used effectively, COVID-19 can linger on surfaces allowing the virus to spread swiftly in contained environments such as DOC facilities. Ex. 1, Dec. of Jaimie Meyer, ECF No. 70-2, ¶ 11. "Cleaning and disinfecting practices can mitigate this risk of disease transmission but remains inadequate in the DC DOC." Id. While progress has been made, most of that progress post-dates the Court's TRO Order. And, many of the issues initially identified by the amici persist.³ Next, the Court considers conditions in isolation units. In its TRO Order, 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. ECF No. 50, 2. In conducting their review, the amici noted some continuing issues in the isolation units. While inmates in the isolation unit at the infirmary in CTF had access to calls through a rolling telephone cart, inmates in isolation at CDF had continued difficulties with personal and legal calls. Attachment 3, 29: 12-30: 8. The rolling telephone cart was not available to isolation inmates in a particular segment of the housing unit. Instead, they had to make calls from the office area which was not always available. Id. at 30: 3-10. While there has been improvement in the isolation units with access to legal and personal calls, "[i]t appears that additional progress may be necessary." Id. at 33: 10-12. The amici also noted that while showers were being provided to inmates in isolation, sometimes several days would pass between showers. Id. at 34: 15-18. Amici attributed the lack of shower access to inadequate staffing combined with other incidents and disturbances. Id. at 34: 19-23. Amici further explained that staff and inmates had reported clothing and linen exchanges. However, those exchanges were occurring with increased frequency only very recently. It was too early for amici to be able to judge whether or not those exchanges occurred with consistency. Id. at 35: 9-16.

3 The Court notes that Defendants contend that they have now provided each inmate with a microfiber towel for cleaning. Defendants cite paragraph 12 of the declaration of either Kathleen Landerkin or Michele Jones. However, neither declaration contains a paragraph 12, and the Court did not see mention of a microfiber towel. See generally , Dec. of Kathleen Landerkin, ECF No. 82-5; Dec. of Michele Jones, ECF No. 82-6. Additionally, these towels were not provided until after the amici's visit, and the Court has no evidence of how this new cleaning tool works in practice.

Defendants contend that conditions on the isolation unit are greatly improved. According to Defendants, following the amici review, all residents in isolation units have access to the rolling telephone carts. Dec. of Kathleen Landerkin, ECF No. 82-5, ¶ 11. Defendants also highlight that residents in isolation units are checked by medical staff at least twice daily. Dec. of Beth Jordan, ECF No. 82-2, ¶ 4.

Again, the Court credits Defendants for their progress in making isolation units less punitive environments. However, the Court notes that this progress occurred only subsequent to the Court's TRO Order. Moreover, there remains progress to be made. While Defendants claim that all inmates in isolation units now have access to the rolling telephone cart for personal and legal calls, this was not the case during the amici visits. Additionally, amici noted that Defendants had only recently increased the frequency of the clothing and linen exchanges for those in isolation. And, amici found that many inmates in isolation were having to wait several days between showers. Amici's findings are supported by declarations of inmates who have been in the isolation units. Ex. 7, Dec. of Romiel Hightower, ECF No. 70-8, ¶ 9 ("I had many fewer opportunities to shower, only once every three or four days after lots of complaining"); Ex. 13, Dec. of Anthony Robertson, ECF no. 70-14, ¶ 10 ("Between April 23rd and April 28th [in isolation unit], I was not able to shower"). The lack of daily access to showers for those in isolation violates Defendants’ own policies and procedures. See Attachment 2, Ex. 11, 2 ("All residents housed in isolation units shall be allowed to shower each day."). The continuation of punitive conditions on the isolation units serves as a barrier to containing the spread of COVID-19 as Defendants primarily rely on inmates to self-report symptoms.

Finally, the Court addresses inmates’ access to confidential legal calls. In its TRO Order, the Court required Defendants to "ensure that all inmates, including those on isolation, have access to confidential, unmonitored legal calls of a duration sufficient to discuss legal matters." ECF No. 50, 3. As previously explained, inmates in isolation have access to a rolling telephone cart to make personal and legal calls. Lacking telephone carts, those in general population units have been forced to make calls through the case managers’ office; however, these calls are not confidential. Dec. of Camile Williams, ECF No. 82-9, ¶ 4. Defendants state that they have recently obtained 50 cellphones and 10 wired headsets to allow inmates to make confidential calls. Id. at ¶ 5. Defendants have ordered an additional 50 wireless headsets which will arrive in June 2020. Id. Additionally, Defendants state that they have harnessed digital tablets to allow inmates to message securely with their attorneys. Dec. of Amy Lopez, ECF No. 82-8, ¶¶ 4-6. Defendants currently have 500 tablets and expect an order of 1,000 more to arrive in June 2020. Id. at ¶¶ 5, 8.

The use of cellphones, wireless headsets, and tablets is a recent development and was not seen during the amici visit. Amici reported that, in order to obtain 30-minute unmonitored legal calls, attorneys are required to email DOC case managers to register for the call system. Attachment 3, 31: 13-15. Once the attorney has registered, the attorney notifies the client by mail and provides contact information. Id. at 31: 23-32: 4. Due to mail delays, some inmates have difficulty accessing this information. Id. at 32: 4-8. When these calls are conducted, they are conducted in the presence of a case manager, so the calls are not confidential. Id. at 33: 13-23. Amici witnessed two to three inmates "conducting legal calls in the case manager's office with the case manager clearly within earshot." Id. at 33: 18-21; see also Ex. 9, Dec. of Kennard Johnson, ECF No. 70-10, ¶ 16 ("On April 27, 2020, I had a legal call in the case manager's office. The case manager was sitting right there during the legal call and could hear the conversation.").

In addition to the case manager system, inmates in general population can use phones in the housing units to contact their legal counsel. However, a barrier to the use of phones in the housing units is the fact that inmates are frequently locked in their cells and sometimes "do not receive an hour out of their cells daily." Attachment 3, 17: 13-17. When inmates are let out of their cells, it may be in the middle of the night. Id. at 36: 10-19. So, while general population inmates may be allowed to call their attorneys from phones in the housing units, the inability to leave their cells during business hours prevents inmates from being able to reach their attorneys. Ex. 10, Dec. of Eric Cooper, ECF No. 70-11, ¶ 13 ("Sometimes I am not let out for my hour of recreation time. Sometimes when they do let me out it is done at 3:00 in the morning so I cannot call my family or attorney.").

The Court credits Defendants for their efforts to obtain new technology to ensure inmates have access to confidential legal calls. However, it appears that some of these new processes have not yet reached the implementation stage. Defendants report that they "have been working to set up accounts for each resident" to be able to use the tablets to message their attorneys. Dec. of Amy Lopez, ECF No. 82-6, ¶ 6 (emphasis added). Defendants "have also been working " with defense attorneys to ensure that they have access to the messaging system. Id. (emphasis added). Similarly, as to the cellphones, Defendants report that "[c]ase managers will use these cell phones to facilitate secure, unmonitored attorney calls." Dec. of Camile Williams, ECF No. 82-9, ¶ 5 (emphasis added). Defendants do not provide a timeline for the implementation of this new technology. As such, nearly four months into the COVID-19 pandemic, Defendants have not yet developed a consistent procedure for all inmates to be able to make and receive confidential legal calls.

Based on the current record, Plaintiffs have provided evidence that Defendants are aware of the risks that COVID-19 poses to Plaintiffs’ health and have disregarded those risks by failing to take comprehensive, timely, and proper steps to stem the spread of the virus. Again, the Court acknowledges that additional development of the record may show that Defendants are taking sufficient precautions and that Defendants’ response continues to evolve. However, on the current record, the Court finds that Plaintiffs have established a likelihood of success in showing deliberate indifference.

c. Municipal Liability

Defendants further argue that Plaintiffs cannot show a likelihood of success on the merits of their constitutional claims because Plaintiffs have failed to establish a municipal policy or custom necessary for liability. " ‘[E]pisodic failures of process do not make out a constitutional violation.’ " Lightfoot v. District of Columbia , 246 F.R.D. 326, 335 (D.D.C. 2007) (quoting Lightfoot v. District of Columbia , 448 F.3d 392, 402 (D.C. Cir. 2006) (Silberman, S.J., concurring)). Instead, "[p]laintiffs who seek to impose liability on local governments under § 1983 must prove that ‘action pursuant to official municipal policy’ caused their injury." Connick v. Thompson , 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quoting Monell v. Dep't of Soc. Servs. of New York , 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ); see also Martin v. Malhoyt , 830 F.2d 237, 255 (D.C. Cir. 1987) ("One instance, however egregious, does not a pattern or practice make."). Generally, in order to establish a policy or custom sufficient to confer liability, a plaintiff must establish an express municipal policy, actions of a policy maker, consistent conduct by non-policy makers, or deliberate indifference to the risk of constitutional injury. See Baker v. District of Columbia , 326 F.3d 1302, 1306-07 (D.C. Cir. 2003).

Defendants contend that Plaintiffs cannot make such a showing because their evidence of misconduct amounts to no more than anecdotes and hearsay. Defendants further assert that they have established policies to address the conditions, and the imperfect implementation of those policies is insufficient to establish municipal liability. The Court disagrees.

The Court finds that Plaintiffs are likely to establish municipal liability because the challenged conditions are the actions of a policy maker and because Defendants have exhibited deliberate indifference.

First, the challenged conditions represent the policies and procedures approved of by Defendant Booth, the final policy maker at DOC facilities. See Triplett v. District of Columbia , 108 F.3d 1450, 1453 (D.C. Cir. 1997) (recognizing director of DOC as final policy maker). Defendant Booth has personally approved plans and policies for addressing COVID-19. See ECF No. 40-2 (emergency plan for COVID-19, signed by Defendant Booth); Attachment 2, Ex. 11 (update memorandum from Defendant Booth on COVID-19 procedures). Because a final policy maker was involved in addressing the conditions of the DOC facilities in response to COVID-19, and because this was a matter within his authority, the Court finds that Plaintiffs have established a likelihood of municipal liability. See Costa , 464 F.Supp.3d at 154–55, 2020 WL 2735666, at *14 (finding likelihood of municipal liability where the director of the hospital was personally involved in the hospital's response to COVID-19); see also Thompson v. District of Columbia , 832 F.3d 339, 347-48 (D.C. Cir. 2016) (explaining that a "single action can represent municipal policy where the acting official has final policymaking authority over the particular area, or ... particular issue" (internal quotation marks omitted)).

Second, the Court finds that Plaintiffs have established a likelihood of success on the merits of their claim of municipal liability through a showing of deliberate indifference. A municipality is liable where the government failed "to respond to a need (for example, training of employees) in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations." Baker , 326 F. 3d at 1306-07. The standard for deliberate indifference for purposes of municipal liability is lower than the standard for deliberate inference for purposes of Eighth Amendment violations because a showing of subjective indifference is not required. Rather the plaintiff must show that the government "knew or should have known of the risk of constitutional violations, an objective standard." Id. at 1307. For the reasons discussed above, the Court has already found that Defendants’ conduct meets this standard of deliberate indifference. See Supra III.A.1.b.

Based on both the conduct of a final policy maker and deliberate indifference, the Court finds that Plaintiffs have shown a likelihood of success on the merits of their municipal liability claims for the conditions of their confinement.

d. Exhaustion

Finally, Defendants contend that Plaintiffs cannot show a likelihood of success on the merits of their constitutional claims because Plaintiffs have failed to exhaust their administrative remedies. Pursuant to the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) ; Porter v. Nussle , 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (holding that the PLRA's "exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences"). Defendants contend that Plaintiffs cannot bring their conditions of confinement claims because they have not exhausted the DOC's Inmate Grievance Procedures.

However, Defendants appear to be mistaken. Plaintiff Banks has submitted evidence that he filed an emergency grievance with Defendant Booth on March 24, 2020. See Ex. H, ECF No. 89-8. DOC policies require a response to emergency grievances within 72 hours. Ex. G, ECF No. 89-7, 17. However, Plaintiff had not received a response when this lawsuit was filed six days later on March 30, 2020. "[A] prison's failure to timely respond to an inmate's properly filed grievance renders its remedies ‘unavailable’ under the PLRA." Robinson v. Superintendent Rockview SCI , 831 F.3d 148, 153 (3d Cir. 2016) ; see also Lineberry v. Fed. Bureau of Prisons , 923 F. Supp. 2d 284, 293 (D.D.C. 2013) ("If ... prison officials ... ignore such a request ... exhaustion may be excused." (internal quotation marks omitted)).

Because at least one Plaintiff has pursued available administrative remedies through the emergency grievance process, "the plaintiff class has met the filing prerequisite." Jackson v. District of Columbia , 254 F.3d 262, 269 (D.C. Cir. 2001) (internal quotation marks omitted). The Court acknowledges that it has not yet ruled on Plaintiffs’ Motion to Certify a Class. ECF No. 3. However, the Court finds Plaintiffs’ evidence of exhaustion sufficient to show a likelihood of success on the merits of exhaustion.

2. Claims for Release

While the Court finds that Plaintiffs have shown a likelihood of success on their claims for Eighth and Fifth Amendment violations based on the conditions of their confinement, the Court further finds that Plaintiffs have not shown a likelihood of success on the merits of their habeas claims for release. Plaintiffs have failed to show a likelihood of success on the merits of their habeas claims because, without Court intervention, Defendants have already taken substantial steps to decrease the inmate population at DOC facilities.⁴

4 Throughout their briefing, the parties devote considerable space to arguing about whether or not the Prison Litigation Reform Act ("PLRA") applies to Plaintiffs’ habeas requests for release. Because the Court concludes that Plaintiffs have not shown a sufficient need for the release of inmates, at this time, the Court does not need to determine whether or not the PLRA would apply to Plaintiffs’ habeas claims.

In the Court's TRO Order, the Court did not order Defendants to take any actions for the release of inmates. See ECF No. 50. Even before the Court issued its TRO Order, the adjudication of individualized petitions for release and the doubling of the maximum number of sentencing credits that a misdemeanant could receive had already led to the release of all but nine inmates convicted of misdemeanors. ECF No. 51, 27.

Since the Court's TRO Order, the population of the DOC facilities has continued to decline. In their oral report, the amici of the Court noted a "significant reduction" in the population of DOC facilities. Attachment 3, 7: 11-16. On March 24, 2020, the total inmate population at DOC facilities was 1,739. Dec. of Aaron Sawyer, ECF No. 80-1, ¶ 7. And, as of June 16, 2020, that population had decreased to 1,260. This reduction represents a population decrease of approximately 28%. See Pls.’ Mot., ECF No. 70, 1-2 (lauding Arlington County Detention Center for decreasing its inmate population by slightly less than a third).

This reduction has been accomplished through many avenues. As has already been discussed, both the Superior Court for the District of Columbia and the United States District Court for the District of Columbia have adjudicated individual petitions for release relating to the COVID-19 crisis. Additionally, the DOC doubled the maximum number of sentencing credits that a misdemeanant could receive in order to expedite the release of non-dangerous misdemeanants. And, the Metropolitan Police Department and the United States Attorney's Office have made efforts to classify more offenses as citations not requiring detention. Attachment 3, 49: 1-3.

The United States Marshals Service has also taken steps to reduce the inmate population. As of April 14, 2020, the Marshals Service ceased processing federal arrests through DOC facilities. Dec. of Aaron Sawyer, ECF No. 80-1, ¶ 12. And, in early June 2020, the Marshals Service moved approximately 120 sentenced and designated inmates from DOC facilities to BOP quarantine facilities where they will await transfer to other BOP facilities. Id. at ¶¶ 7-9. In addition, the Marshals Service has transferred approximately 15 inmates at high risk for contracting COVID-19 and is working to transfer approximately 20 more high-risk inmates. Id. at ¶ 10. The Marshals Service has further collaborated with the United States Attorney's Office for the District of Columbia in an effort to transfer 50-100 inmates who are committed to other institutions but are being temporarily detained in DOC facilities. Id. at ¶ 11. The Court commends the Marshals Service's success in moving inmates from DOC facilities particularly given the travel restrictions and other regulations stemming from COVID-19 and their other responsibilities.

Additionally, the United States Parole Commission has made progress in reducing the inmate population at DOC facilities. Starting in mid-March 2020, the Parole Commission has reduced the number of warrants issued for parole and supervised release violations to those posing an imminent risk to public safety. Dec. of Stephen J. Husk, ECF No. 80-3, ¶ 5. And, on April 3, 2020, the Parole Commission began reviewing supervised release violators to consider reducing the prison term imposed for offenders 60 years of age or older who meet certain requirements. Id. at ¶ 7. During April 2020, the Parole Commission further individually reviewed each inmate confined on a parole matter and considered them for possible release. Id. at ¶ 8. Throughout the end of May and the beginning of June 2020, the Parole Commission has also been reviewing approximately 90 offenders who have detainers against them to apply heightened scrutiny to see if the detainer may be removed. Id. at ¶ 13. These efforts have resulted in the DOC inmate population under the Parole Commission's jurisdiction being reduced from 270 on March 16, 2020 to 121 as of May 21, 2020. Id. at ¶ 6.

Plaintiffs complain that the steps that Defendants have taken are too little too late. While the Court agrees that more can yet be accomplished, the Court finds that Defendants have taken concrete steps, dating from before the TRO Order, to reduce the inmate population at DOC facilities. Without Court intervention, the DOC inmate population has already decreased by approximately 28%, and Defendants have indicated steps that will be taken to continue to reduce the population. As such, the Court finds that Plaintiffs are unlikely to prevail on their habeas claims for release.

The Court acknowledges that reducing the inmate population will likely slow the spread of COVID-19. However, in addition to individual inmates who have requested reviews for release, Defendants have already initiated systematic approaches to inmate population reduction without Court intervention. The Court finds it necessary and proper for Defendants to continue updating the Court on their approaches to inmate population reduction and for the Court to continue reviewing those approaches. However, at this time, the Court does not find that additional intervention is warranted on this issue.

For the reasons explained above, the Court finds that Plaintiffs have not established a likelihood of success on their habeas claims for release. The Court DENIES WITHOUT PREJUDICE Plaintiffs’ Motion on this ground.

B. Irreparable Harm

Next, the court considers whether or not Plaintiffs have made a showing of irreparable harm on their constitutional claims for conditions of confinement. "[P]erhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered." Sierra Club v. United States Army Corps of Engineers , 990 F. Supp. 2d 9, 38 (D.D.C. 2013) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed.2013) ). "[P]roving irreparable injury is a considerable burden, requiring proof that the movant's injury is certain, great and actual —not theoretical—and imminent , creating a clear and present need for extraordinary equitable relief to prevent harm." Power Mobility Coal. v. Leavitt , 404 F. Supp. 2d 190, 204 (D.D.C. 2005) (citations and internal quotation marks omitted, emphasis in original).

Plaintiffs’ theory of irreparable harm rests on the risk of contracting COVID-19 and the resulting health complication. The Court concludes that Plaintiffs’ risk of contracting COVID-19 and the resulting complications, including the possibility of death, is the prototypical irreparable harm. See Harris v. Board of Supervisors, Los Angeles County , 366 F.3d 754, 766 (9th Cir. 2004) (finding irreparable harm from pain, infection, and possible death due to delayed treatment from the reduction of hospital beds). "Facing requests for preliminary injunctive relief, courts often find a showing of irreparable harm where the movant's health is in imminent danger." Al-Joudi v. Bush , 406 F. Supp. 2d 13, 20 (D.D.C. 2005) (citing Wilson v. Group Hosp. & Med. Servs., Inc. , 791 F. Supp. 309, 314 (D.D.C. 1992) (granting preliminary injunction where cancer patient's "health and future remain[ed] in serious doubt" and insurance would not pay for life-saving treatment)).

Defendants do not appear to contest that the risk of contracting COVID-19 constitutes irreparable harm. Instead, Defendants contend that Plaintiffs cannot establish irreparable harm "given that the considerable efforts of DOC are working to slow and prevent the spread of COVID-19 in its facilities." D.C. Defs.’ Opp'n, ECF No. 82, 37. Defendants further argue that "the three plaintiffs have failed to show that they are facing any risk of imminent harm themselves" as each Plaintiff has not submitted an individualized declaration of potential risk. Id.

The Court disagrees. Plaintiffs have submitted evidence that "people living and working in DC DOC facilities remain at risk of serious harm due to COVID-19 infection." Dec. of Jaimie Meyer, ECF No. 70-2, ¶ 3. While the Court lauds the progress Defendants have made, such progress is not sufficient to negate Plaintiffs’ risk of harm from contracting COVID-19. This risk of harm applies to Plaintiffs as COVID-19 is an infectious disease which spreads quickly and fatally in congregate settings, such as DOC facilities. "The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected." Dec. of Jaimie Meyer, ECF No. 5-2, ¶ 9. As inmates at DOC facilities, this increased risk of exposure, contraction, and harm applies to Plaintiffs. The fact that the increased risk is widespread among inmates at DOC facilities does nothing to reduce Plaintiffs’ potential for irreparable harm.

Defendants, as well as society at large, are facing an unprecedented challenge. The risks of contracting COVID-19 are very real for those both inside and outside DOC facilities. However, Plaintiffs have produced evidence that inadequate precautionary measures at DOC facilities have increased their risk of contracting COVID-19 and facing serious health consequences, including death. Given the gravity of Plaintiffs’ asserted injury, as well as the permanence of death, the Court finds that Plaintiffs have satisfied the requirement of facing irreparable harm unless injunctive relief is granted.

C. The Balance of Hardships and the Public Interest

The Court moves to the final factors to be considered in granting a temporary restraining order—the balance of the equities and the public interest. In this case, where the government is a party to the suit, the harm to Defendants and the public interest merge and "are one and the same, because the government's interest is the public interest." Pursuing America's Greatness v. FEC , 831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original). The Court finds that the public interest weighs in favor of granting injunctive relief on Plaintiffs’ constitutional claims for the conditions of their confinement.

First, the Court notes that Plaintiffs have established a likelihood that they will prevail on the merits of their due process and Eighth Amendment claims. And, "[i]t is always in the public interest to prevent the violation of a party's constitutional rights." Simms v. District of Columbia , 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (internal quotation marks omitted). There is no harm to the Government when a court prevents unlawful practices.

Additionally, granting injunctive relief which lessens the risk that Plaintiffs will contract COVID-19 is in the public interest because it supports public health. No man's health is an island. If Plaintiffs contract COVID-19, they risk infecting others inside the DOC facilities. Plaintiffs also risk infecting DOC staff members who work inside DOC facilities but also live in the community, thus increasing the number of people vulnerable to infection in the community at large. Additionally, if Plaintiffs contract COVID-19 and experience complications, "they will be transported to community hospitals—thereby using scarce community resources (ER beds, general hospital beds, ICU beds)." Dec. of Marc Stern, ECF No. 1-1, ¶ 13. As such, ordering Defendants to take precautions to lower the risk of infections for Plaintiffs also benefits the public.

Defendants argue that imposing injunctive relief will disrupt efforts already underway to address the COVID-19 crisis. Defendants contend that injunctive relief would impose an undue burden which would divert time and resources from the precautions already being undertaken.

However, the Court finds that the relief which will be granted, to be detailed below, is narrowly tailored and does not impose an undue burden on Defendants. The Court begins by noting that the D.C. Circuit "has rejected any distinction between a mandatory and prohibitory injunction." League of Women Voters of United States v. Newby , 838 F.3d 1, 7 (D.C. Cir. 2016). Declarations by DOC officials claim that Defendants are already complying with much of the requested relief. See, e.g. , Dec. of Lennard Johnson, ECF No. 82-1, ¶ 6 (social distancing enforced); ¶ 8 (clean linens and clothing for inmates); ¶ 10 (availability of free legal calls); Dec. of Beth Jordon, ECF No. 82-2, ¶ 4 (description of practices in isolation units); ¶ 5 (quarantine and isolation standards); ¶¶ 8-9 (enhanced sick call process); ¶ 10 (testing). The Court's Order simply ensures that the precautions are being taken consistently and effectively. Moreover, the Court does not order Defendants to take precautions that are not already being undertaken by much of the population. In lessening the number of inmates infected with COVID-19, Defendants actually lessen the healthcare burden that they will be facing in the weeks and months to come.

Defendants further argue that ordering injunctive relief will impose on the broad discretion of the executive in operating correctional institutions. The Court acknowledges the public interest in permitting the government discretion to carry out its authorized functions. However, "[c]ourts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration." Brown , 563 U.S. at 511, 131 S.Ct. 1910. The D.C. Circuit has previously authorized injunctive relief against correctional facilities, even where the injunctive relief imposes a particular set of conditions. See Campbell v. McGruder , 580 F.2d 521, 551-52 (D.C. Cir. 1978) (finding specific conditions not unduly intrusive because there was "no alternative if the rights of pretrial detainees are to be respected"). And, other courts have also found that the balance of the equities favors injunctive relief to ensure that inmates are adequately protected from the threat of COVID-19. See Seth v. McDonough , Case No. 20-cv-1028, 461 F.Supp.3d 242 (D. Md. May 21, 2020) (granting injunctive relief requiring correctional facility to take actions on testing, PPE, training, education, supervision, and medical care due to COVID-19); Cameron v. Bouchard , Case No. 20-10949, 2020 WL 1929876 (E.D. Mich. April 17, 2020) (injunctive order mandating correctional facility take certain steps involving sanitation, PPE, and medical care in response to COVID-19); Mays v. Dart , Case No. 20-C-2134, 456 F.Supp.3d 966 (N.D. Ill. April 27, 2020) (granting injunctive relief ordering correctional facility to conduct specific testing, enforce social distancing, provide specified sanitation materials, and more).

For the foregoing reasons, the Court finds that the balance of the equities and the public interest weigh in favor of granting injunctive relief.

D. Specific Relief Granted

While the Court has concluded that, on the current factual record, Plaintiffs are entitled to some injunctive relief, the Court is not granting the totality of the relief requested.

First, the Court does not order the release of any inmates. However, the Court does ORDER the United States to provide the Court with a detailed plan for the review and possible further reduction of DOC inmates under their supervision/care by JULY 1, 2020. The Court further ORDERS the United States Parole Commission to provide the Court with a detailed plan for the review and possible further reduction of DOC inmates under their supervision/care by JULY 1, 2020.

As to the conditions of Plaintiffs’ confinement, the Court ORDERS the following.

First, the Court ORDERS that Defendants implement a medical care system on general population units that ensures inmates receive attention from a medical provider within 24 hours of reporting health issues. If this system continues to use sick call slips, Defendants shall ensure that inmates have consistent and immediate access to such sick call slips and that said slips are collected at regular intervals. Defendants shall provide the Court with details of their enhanced medical care system by JUNE 29, 2020.

Second, the Court ORDERS that Defendants comply with District of Columbia and Centers for Disease Control regulations on social distancing in DOC facilities. Defendants shall address challenges which have prevented the implementation of social distancing including but not limited to lack of education and staffing shortages. Defendants shall provide the Court an update on their improvements to enforcing social distancing by JUNE 29, 2020.

Third, Defendants shall continue the services of their newly-contracted environmental health and safety vendor. Defendants shall further continue their contract to provide COVID-19 cleaning services on the secure and non-secure sides of the DOC facility, including the common areas of all housing units. Defendants shall further continue their efforts to hire a registered sanitarian. Defendants shall ensure that inmates have access to the necessary materials to clean their cells, including cleaning solutions which protect against COVID-19 and adequate cleaning textiles and tools. Defendants shall further ensure that DOC staff and inmates are informed of and trained on the proper techniques for mixing and preparing cleaning solutions as necessary. Defendants shall provide the Court an update on their improvements to sanitation by JUNE 29, 2020.

Fourth, Defendants shall ensure that conditions in isolation units are non-punitive. This includes ensuring reliable and regular access to legal calls, personal telephone calls, daily showers, and clean clothing and clean linens to all inmates on isolation status. Defendants shall provide the Court an update on their improvements to conditions in isolation cells by JUNE 29, 2020.

Fifth, Defendants shall ensure that all inmates have access to confidential, unmonitored legal calls of a duration sufficient to discuss legal matters. Insofar as inmates’ access to confidential, unmonitored legal calls is reliant on the use of new technology, Defendants shall swiftly implement the use of such technology. Defendants shall provide the Court an update on their improvements to the legal call system by JUNE 29, 2020.

Finally, the Court notes that Defendants have increased testing for COVID-19, now testing any resident to be transferred to Saint Elizabeths Hospital or to a federal correctional facility. Defendants also test any cell mate of an inmate who tests positive and all new residents upon intake. Defendants continue to test those inmates who report positive for COVID-19 symptoms. The Court ORDERS that Defendants continue implementing this increased testing. The Court further ORDERS that Defendants update the Court on any changes to the testing protocol at DOC facilities, including the further testing of asymptomatic inmates.

After the Court has received the ordered updates, the Court shall schedule a further hearing to discuss next steps and the continued role of the amici of the Court.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ [70] Amended Motion for a Preliminary Injunction is GRANTED IN PART AND DENIED IN PART. Plaintiffs have demonstrated a likelihood of success on the merits, irreparable harm, and that the balance of the hardships and the public interest weigh in their favor for their constitutional claims involving the conditions of their confinement. Accordingly, Plaintiffs are entitled to the injunctive relief which is detailed above. However, the Court finds that some of the relief requested by Plaintiffs, such as the immediate release of inmates and the appointment of a downsizing expert, is inappropriate at this time on the current factual record.

An appropriate Order accompanies this Memorandum Opinion.

Attachment

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

EDWARD BANKS, et al. , Plaintiffs,

v.

QUINCY BOOTH, in his official capacity as Director of the District of Columbia Department of Corrections, et al. , Defendants.

No. 1:20-cv-849 (CKK) REPORT SUBMITTED BY AMICUS CURIAE PURSUANT TO APRIL 9, 2020 CONSENT ORDER ^*

* This filing corrects two typographical errors that appear in the version of this report that was submitted to the Court and the parties on April 18, 2020 by deleting the word "not" in line three on page 25 and substituting the word "secure" for "non-secure" in line eight on page 33.

Pursuant to the April 9, 2020 Consent Order issued in the above-captioned matter, Amici , Grace M. Lopes and Mark Jordan, submit the following report for the Court's consideration.

I. INTRODUCTION

On April 9, 2020 amici were appointed to provide specific information to the Court regarding medical services and environmental health and hygiene at two detention facilities operated by the District of Columbia Department of Corrections ("DOC"), the Central Detention Facility ("CDF") and the Correctional Treatment Facility ("CTF"). In the wake of the order, amici collected and analyzed data obtained from site visits at both facilities; conducted structured interviews with DOC managers, line staff, inmates, and contractors; reviewed electronic health records; and analyzed multiple electronic datasets extracted from information management systems maintained by the DOC or its contract services providers. On April 15, 2020, amici participated in a teleconference with the Court and the parties and provided a preliminary summary of their findings, which are explained in greater detail below. At the conclusion of the teleconference, the Court directed amici to include in this report recommendations regarding issues that amici have identified.

This report describes the methodology amici relied upon to conduct their assessment, the facilities subject to the assessment, and amici's findings and recommendations related to the questions delineated in the April 9, 2020 order. Throughout this one-week investigation, the defendants have fully cooperated with amici's requests for information and actively facilitated amici's work. DOC and contract staff at every level, as well as representatives from the Office of the Attorney General, have made themselves available on short notice, on every day of the week, and well after traditional officer hours. Data reports and other records were produced on abbreviated timelines. Amici acknowledge and appreciate the efforts the defendants have made to cooperate with and expedite their review.

II. METHODOLOGY

Following the issuance of the April 9, 2020 order, amici reviewed the documents identified in the order and conducted unannounced and unescorted site visits on multiple shifts at both the CDF and CTF on April 10, 11, and 12, 2020. During the site visits, at both facilities amici visited general population, maximum and medium security housing units, including housing units on isolation or quarantine status, as well as intake, special management, and mental health units. Seven housing units at the CDF (S1, NW1, S2, NE2, N3, NE3, and N2) and five housing units at the CTF (D2A, D1B, C2A, C2B, and C4B) were visited. Observations in housing units included cells, dayrooms, restrooms, and shower facilities. At both facilities, medical units (including the CTF infirmary), visitor entry areas, Command Centers, and the Culinary Unit at the CDF,^{1 1} were visited. Structured in-person interviews were conducted with the DOC Medical Director, the Medical Director and Deputy Medical Director for Correctional Health at Unity Health Care, Inc. ("Unity"),^{2 2} the CDF/CTF Warden and his deputies, and dozens of correctional officers assigned to various posts throughout the facilities, including housing unit, environmental, and culinary posts. In-person interviews were also conducted, in groups and individually, with over 100 inmates on isolation and quarantine status as well as in the general population at both facilities.

1 The Culinary Unit at the CTF was not operational at the time of the site visits and as a result the Culinary Unit at the CDF has been servicing both facilities.

1 Unity provides medical services on a contractual basis to inmates at the CDF and CTF.

2 Unity provides medical services on a contractual basis to inmates at the CDF and CTF.

2 The team amici assembled for this stage of their work included two additional members. The majority of case record reviews were conducted by Janet Maher, an attorney who has extensive experience in working in institutional and health-care settings. Ms. Maher headed the Office of Corporation Counsel's Mental Health Division from 1992 to 2000, worked as Deputy General Counsel and Chief of Staff for the District's Child and Family Services Agency from 2000 to 2007 and as DOJ Compliance Officer at Saint Elizabeths Hospital from 2007 to 2014. From 2013 to her retirement in 2016, she headed the Hospital's Performance Improvement Department. She also has provided consultative services to the Maryland and Pennsylvania behavioral health systems and to the Special Arbiter appointed by the Superior Court in Jerry M. v. District of Columbia, Superior Court of the District of Columbia, C.A. No. 1519-85. Case records were also reviewed by Brenda Foust, a senior paralegal with substantial experience in similar institutional contexts.

In addition, amici conducted informal in-person or telephone discussions with Unity staff, including infection control staff and managerial clinical health care providers, to obtain and/or verify information. A range of DOC managers and staff with responsibility for administrative matters, including cleaning, hygiene and medical supplies, data management and analysis, warehouse functions, contractual cleaning services and human resources were also contacted and provided information that is reflected in this report.

In addition to the information collected during site visits and from interviews, amici requested and received access from the DOC to the electronic health records of inmates confined at the CDF and CTF.^{3 3} Review and analysis of samples from these records has been conducted and the results are described below. The following data were also obtained from the DOC and analyzed:

3 Case record reviews were conducted by Janet Maher, an additional member of the team amici assembled. Ms. Maher is an attorney who has extensive experience in working in institutional and health-care settings. Ms. Maher headed the Office of Corporation Counsel's Mental Health Division from 1992 to 2000, worked as Deputy General Counsel and Chief of Staff for the District's Child and Family Services Agency from 2000 to 2007 and as DOJ Compliance Officer at Saint Elizabeths Hospital from 2007 to 2014. From 2013 to her retirement in 2016, she headed the Hospital's Performance Improvement Department. She also has provided consultative services to the Maryland and Pennsylvania behavioral health systems and to the Special Arbiter appointed by the Superior Court in Jerry M. v. District of Columbia , Superior Court of the District of Columbia, C.A. No. 1519-85.

3 Amici previously reported that as of April 13, 2020 43 percent of inmates at the CDF were housed in single cells. See Report Submitted by Amicus Curiae Pursuant to April 9, 2020 Consent Order, filed on April 19, 2020 [hereinafter Amici's April 2020 Report ] at 4.

• Admissions data for both facilities for the period February 15, 2020 to April 10, 2020;

• Daily census data, including inmate housing assignments, for the period February 15, 2020 to April 13, 2020;

• Data related to sick call requests for the period February 5, 2020 to April 12, 2020;

• Data related to all COVID-19 tests conducted on inmates housed at both facilities through April 10, 2020;

• Data related to all urgent care encounters for the period February 15, 2020 through April 15, 2020;

• Inventory data for cleaning supplies as of April 13, 2020;

• Inventory data for personnel protective equipment as of April 17, 2020; and

• Data related to cleaning supplies and soap deliveries to both facilities for the period December 31, 2019 to April 13, 2020.

Aggregated data related to DOC correctional staffing levels was also reviewed and is addressed below.

III. BACKGROUND

The CDF is a multi-story, secure detention center. Recent population levels have hovered near 1020 inmates. The facility has 18 housing units, which are both single and double celled. Analysis of DOC housing data shows that as of April 13, 2020, 43 percent of the inmates housed at the CDF were housed in single cells and 56 percent were housed in cells with another inmate.^{4 4} At the time of amici's site visits, 16 housing units were open and two were closed. Of the 16 open housing units, two were quarantine units and one was an isolation unit.⁵ Cellblocks are divided into two sides, and for most of the facility's housing units, each side contains two tiers with 20 cells per tier.⁶ All cells at the CDF are "wet" cells, i.e., they have toilets and sinks. Each cellblock tier of 20 cells has two showers, which are shared by inmates housed in the unit and located in a common area. The CDF Culinary Unit, which is operated by a contractor and up until April 11, 2020 employed inmate workers, currently supports the food service program for both the CDF and the CTF.⁷

4 Ex. 1, Table, Number of Cells Housing One Inmate and Two Inmates at the Central Detention Facility, March 15 – April 13, 2020. Two inmates did not have a recorded cell assignment.

4 There are two exceptions: N-1 is a restrictive housing unit with 72 cells and NE-3 is a mental health step-down unit with 36 cells.

5 The number of quarantine and isolation units is, of course, variable. It is amici's understanding that since the time of their site visits additional quarantine units have opened.

6 There are two exceptions: N1 is a restrictive housing unit with 72 cells and NE3 is a mental health step down unit with 36 cells.

7 The CTF has a separate Culinary Unit that is responsible for that facility's food service program. At the time of amici's site visits, DOC staff reported that the Culinary Unit at the CTF was closed due to a COVID-19 issue. Amici have confirmed that the food service program at the CTF is not operational and that the CDF Culinary Unit is now supporting the food service program at the CTF. Amici have not had an opportunity to confirm the date the CTF Culinary Unit closed, but staff reported it had been up to several weeks before the site visit. The closure of the CTF Culinary Unit has put evident strain on the food service program at the CDF.

The CTF, which had a population of approximately 400 inmates at the time of amici's site visits, has 25 housing units.⁸ Eighteen have a capacity of 50 beds, four have a capacity of 96 beds, and one has a capacity of 65 beds. There are two additional medical housing units and two special management units that have varying capacities and are not intended for general population housing. As of April 13, 2020, 95 percent of the inmates at the CTF were housed in single cells.⁹ With the exception of eight housing units,¹⁰ all of the CTF's housing units have wet cells. At the time of amici's site visits, nine housing units were closed and there were eight quarantine units and three isolation units. The isolation units and seven of the eight quarantine units operating at the time of amici's site visits have wet cells. The CTF also has a 30-room infirmary with 40 beds. The infirmary serves both facilities.

8 This total includes two special management units. Inmates are also housed in a limited mobility medical unit and the infirmary.

9 Ex. 2, Table, Number of Cells Housing One Inmate and Two Inmates at the Correctional Treatment Facility, March 15 – April 13, 2020.

10 Three of the eight housings units that do not have toilets and sinks were open during the site visits.

As of April 16, 2020, the DOC reported that 130 inmates have been tested for COVID-19 and a total of 65 inmates have been confirmed positive, 57 at the CTF and eight at the CDF. Forty-three have tested negative, 22 are currently on isolation units and forty-three have recovered. One inmate died while hospitalized and none are currently hospitalized. Data regarding the number of DOC staff who have tested positive for COVID-19 have not been provided. One member of the DOC correctional staff died earlier this week. Not surprisingly, as evidenced by the findings set out below, the COVID-19 pandemic has presented formidable challenges for the defendants and had a significant impact on operations at both the CDF and the CTF.

IV. FINDINGS AND RECOMMENDATIONS

Amici's findings and recommendations related to the questions delineated in the April 9, 2020 order are set forth below.

A. MEDICAL

Question One: When residents display COVID-19 symptoms, as defined by the CDC, are they seen by medical staff?

Question Two: When residents display COVID-19 symptoms are they tested for COVID-19?

Question Three: Are there requests for a sick call based on suspected COVID-19 symptoms where there is no response?

Question Four: Is the response time for sick call requests of suspected COVID-19 symptoms for a resident to be seen by medical staff reasonable (assuming time of request and response time are recorded)?

Questions One through Four address the identification of inmates who display symptoms or who are suspected of having contracted COVID-19 and whether those inmates have access to timely health assessments, services, and COVID-19 testing, as indicated. As discussed below, amici were not able to address Questions One through Four directly because the available healthcare datasets did not enable identification of either the universe or representative samples of inmates displaying symptoms or suspected of having contracted COVID-19. Amici therefore attempted to identify the mechanisms by which inmates with COVID-19 symptoms are identified by medical staff and reviewed a sample of the electronic health records of inmates who had been tested for COVID-19 to assess timeliness and scope of service delivery in those cases.

In order to evaluate DOC performance relative to these questions, amici relied on multiple sources of information including the following: interviews with DOC and contract medical staff, including executive staff; interviews with inmates; interviews with correctional officers; custom data reports from Unity's electronic health record system, including data regarding sick call requests and encounters and urgent care encounters; data regarding all COVID-19 testing conducted on inmates at the CDF and CTF through April 10, 2020; data regarding all sick call requests and encounters between February 5, 2020 and April 12, 2020;¹¹ data regarding all urgent care encounters between February 15, 2020 and April 15, 2020; and, two random samples of individual inmate health records, one drawn from the population of inmates tested for COVID-19 through April 10, 2020, and the second from a dataset of all sick call requests submitted between March 1, 2020 and April 12, 2020.¹² According to medical staff, the two primary methods by which inmates access health care are through a sick call process, in which inmates complete a written sick call form and insert it into a locked box on their housing units and an urgent care process, whereby an inmate can inform a correctional officer that s/he would like to see medical staff.¹³ According to medical staff, in these circumstances the correctional officer contacts the medical unit and a nurse, in consultation with a medical provider,¹⁴ triages the telephone call and either instructs the correctional officer to have the inmate escorted to the medical suite or schedules the inmate for sick call on the next day.¹⁵

11 In some cases, clinical encounters are recorded as sick call visits, but they do not have an associated written sick call request. Medical staff have explained that when they visit housing units to conduct sick call, they allow inmates who did not submit sick call requests to access services.

12 Records of 28 of the 83 inmates who were tested as of April 10, 2020 were reviewed. In addition, records of 40 inmates who submitted sick call requests during the review period were reviewed. There were no overlapping cases in the two samples.

13 There are also chronic care clinics operating Monday through Friday at both the CDF and CTF for inmates with chronic health conditions.

14 Advanced medical providers are considered to be MDs, DOs, nurse practitioners, and physician assistants.

15 Triage decisions require symptomatic information from the patient. Medical staff stated that at times the correctional officer will allow an inmate requesting urgent care to speak directly with the nurse and at times the inmate informs the correctional officer of their symptoms and the correctional officer reports that information to the nurse. It is not appropriate to require inmates to disclose health information to correctional staff in order to access medical services. The possibility of doing so could deter inmates from seeking necessary medical care.

Amici initially analyzed sick call request data for the period between February 5, 2020 and April 12, 2020 to assess whether the data could be used to identify sick call requests for CDC-defined COVID-19 symptoms (i.e. , fever, cough, and shortness of breath) and thereafter to assess the time from the request to the time of any responsive medical evaluation. The data included a total of 6,840 records.

For two principal reasons, amici determined that these data could not be used as the basis for findings related to identification of inmates with COVID-19 symptoms and assessment of the timeliness of their access to medical services. First, nearly 5,000 of the records did not include a description of the symptoms for which the inmate requested medical care, making it impossible to identify either the universe of or a representative sample of inmates with COVID-19 symptoms.¹⁶ Second, amici reviewed data regarding all 83 COVID-19 tests administered to inmates through April 10, 2020 and cross referenced the names of the tested inmates against sick call request records. Of the 83 inmates tested, 69 did not submit a sick call request at any point between February 5, 2020 and the date of their test. Based on a review of a sample of electronic health records of the 13 inmates who tested positive for COVID-19 for whom there was a record of a sick call request between February 5, 2020 and the date of their test, amici found that the sick call request was not associated with COVID-19 symptoms in any of the cases.

16 For example, the relevant data field in many cases recorded "initial visit," "follow-up visit," or "SC [sick call] slip."

However, based on amici's review of data related to inmates tested for COVID-19, it appeared that most inmates displaying symptoms or suspected of having contracted COVID-19 were presenting to medical staff by a method other than through the submission of a sick call request. Managers of the DOC medical program confirmed this impression. One manager stated that the first positive COVID-19 cases were identified after inmates presented to health care staff through the urgent care process. Once they were confirmed positive for COVID-19, the DOC began to quarantine housing units in which the COVID-19 positive inmates were housed as a containment precaution. Medical staff implemented a practice of monitoring quarantined inmates’ temperatures twice daily and reported that this daily surveillance process identified multiple subsequent positive COVID-19 cases, principally at the CTF.

Medical staff members stated that inmates who are not subject to daily monitoring in a quarantine unit also are most likely to be identified as having symptoms of COVID-19 through the urgent care process. Accordingly, amici obtained and analyzed data regarding urgent care encounters at the CDF and CTF for the period February 15, 2020 through April 15, 2020. The data indicate that during that period there were a total of 3,439 urgent care encounters, 2,488 at the CDF and 951 at the CTF.¹⁷ In comparison, over approximately the same time period there were a total of 5,244 sick call requests and encounters, 4,360 at the CDF, 525 at the CTF, and 359 at locations that could not be determined from the available data.¹⁸ Based on these totals, it appears that during the period reviewed urgent care represented 40 percent of the combined volume of sick call and urgent care encounters, and sick call represented 60 percent of the total.

17 Ex. 3, Chart, Urgent Care Visits at Central Detention Facility and Correctional Treatment Facility, by Day, February 15 – April 15, 2020.

18 Ex. 4, Chart, Sick Call Requests and Encounters, by Day, February 15 – April 12, 2020.

To assess whether inmates with symptoms of COVID-19 utilize the urgent care process, amici analyzed the urgent care dataset for any references to the term "COVID." The data indicate that the first reference to COVID-19 in the data was on March 15, 2020 at the CDF (for an inmate who was later ruled out for COVID-19), and March 21, 2020 at the CTF. Beginning on March 26, 2020, there were nearly daily and steadily increasing references to COVID-19 in the urgent care encounter data.¹⁹ Thus, it appears that inmates who are not housed in quarantine units are using the urgent care system to present with COVID-19 symptoms to medical staff at the CDF and CTF.

19 Ex. 5, Chart, Urgent Care Medical Encounters With Clinical Summary Descriptions Including the Word "COVID," by Day, February 15 – April 15, 2020. The data appear to include daily follow-up assessments of isolated inmates, which explains in part the dramatic increase in volume over time.

Given time constraints, it was not possible for amici to assess how accessible the urgent care system is to inmates. Available data sources included only records of completed visits and do not reflect attempts to access the system. Numerous factors could impact inmate access to the urgent care system, including the availability of escort staff, willingness of correctional officers to facilitate calls to medical staff while they perform other duties on the unit, and the willingness of inmates to disclose confidential health information when they are within earshot of non-medical staff.

Notwithstanding the evidence that most inmates with symptoms or who are suspected of having contracted COVID-19 appear to present to medical staff by a method other than sick call, in order to evaluate and to assess the responsiveness of the sick call process more generally, in the instances in which inmates submit sick call requests, amici assessed whether those requests are collected and the inmate is seen by medical staff on a timely basis. Amici selected a random sample of 41 sick call requests submitted by inmates between March 1, 2020 and April 12, 2020 and reviewed the individual health records associated with each request. One sick call request was excluded from the analysis.²⁰ Of the 40 requests reviewed, 31 included a date of request recorded by the inmate. Of those 31 requests, 26 included a time stamp reflecting when medical staff collected the form. The time stamp was used to analyze the time that elapsed between the date recorded by the inmate on the sick call request form and the date of pick up. Of those 26 requests, 23 requests, 89 percent, were collected within one day. The remaining three were collected within two, four, and 14 days respectively.

20 One of the cases sampled was excluded because the corresponding written request form was not available for review.

Among the 31 requests that included a date of request recorded by the inmate, review of the corresponding electronic health records indicate that 23 inmates were seen within three days of submitting their request, 74 percent.²¹ One inmate was seen six days after the request was made.²² In two instances involving the same inmate, the inmate was seen every day for ten days for adult preventative care relating to COVID-19 exposure, but the notes in the electronic health records documenting these encounters do not specifically address the issue reflected in the inmate's sick call request. The other three requests were scheduled for appointments, but the inmates were not seen.²³ Two requests that were recorded as scheduled for appointments were cancelled.²⁴

21 In 22 of the 23 cases the inmates were seen within two days and in one case the inmate was seen within three days.

22 The inmate requested treatment for tooth pain.

23 In the three cases, the health record noted that the sick call appointment was cancelled because the inmate was in court, was "unavailable" or was a no show.

24 In one case an inmate indicated he had a "possible" broken finger and in the second the inmate requested fungal cream.

Amici also assessed whether the issue raised by the inmate in his or her sick call request was addressed by the medical provider. In the 33 cases in which the inmate was seen by a medical provider, the medical provider addressed the specific request made by the inmate in 28 cases, 85 percent. In some cases the inmate was referred to specialty providers, but in most cases the inmate received interventions intended to provide immediate relief. In a minority of cases the specific intervention requested by the inmate was not provided but the clinical basis for the decision was reflected in the record.

Recommendation : In light of the medical surveillance and monitoring that is occurring currently in the quarantine units, defendants should ensure that the triage process associated with sick call requests on the non-quarantine units is expedited and reflects appropriate sensitivity to the wide variety of symptoms associated with COVID-19 disease. Correctional officers and other staff who are in contact with inmates should ensure that the medical staff are promptly informed about inmates who present with symptoms of COVID-19 and medical staff should respond to the housing unit on an expedited basis. Any inmate grievances that include allegations of delay in medical assessment should be prioritized and submitted to the DOC medical director immediately.

Question Five: Are residents suspected of COVID-19 isolated from other people?

Health care staff reported that if an inmate is suspected by a medical provider of having contracted COVID-19, a request for testing is made to the D.C. Department of Health. As of April 10, 2020, all requests for testing made on behalf of DOC inmates had been approved. Health care staff report that pending the testing results, the inmate is placed on cell restriction in their housing unit.

There is evidence that cell restriction practices are being implemented. The sample of electronic health records of inmates who tested positive for COVID-19 that amici reviewed document cell restriction orders entered by medical staff at the time COVID-19 testing was ordered by the provider. Inmates on isolation status at both facilities reported being placed on cell restriction prior to testing and before being moved to an isolation unit. During site visits amici noted that there were inmates on cell restriction status in some housing units. Correctional officers assigned to housing unit posts who were interviewed by amici reported that inmates who are on cell restriction are not permitted to leave their cells for any reason.

Moreover, health care and facility management staff report that in instances in which an inmate tests positive for COVID-19, the inmate is moved to an isolation unit. According to those staff, only inmates who have tested positive for COVID-19 are housed in isolation units. DOC records indicate that as of April 10, 2020, 82 inmates were tested for COVID-19. Of the 82 inmates, 52 were COVID-19 positive, 26 were negative, and the balance were pending results. Amici reviewed a sample of 28 health records reflecting positives, negatives and pending test results. There were 16 COVID-19 positives in the sample. Amici's review of DOC housing records for this cohort indicates that all of the 16 inmates in the sample who tested positive were moved from their housing unit to another housing unit within no more than two days, and most within one day of the positive test result. Based on what amici have learned about current DOC business practices, it is likely this cohort was on cell restriction status at the time of testing before being moved to an isolation unit.

Accordingly, although amici have not had an opportunity to conduct a systematic review related to the implementation of cell restriction orders, it appears that inmates suspected of having COVID-19 are placed on cell restriction and isolated from other inmates.

Recommendation : If the defendants are not already doing so, they should that ensure that cell restrictions are appropriately monitored, tracked, and corrective action is undertaken on an expedited basis if warranted.

Question Six: Are new residents who enter DOC quarantined for 14 days?

DOC facility executives and medical staff reported a practice of quarantining newly admitted inmates for a 14-day period prior to moving them to another housing unit. To assess whether this practice was being implemented amici analyzed intake and housing data for the period from March 15, 2020 to April 10, 2020. The data indicate that starting March 25, 2020 the defendants implemented a practice of housing new admissions on SO2, the intake unit at the CDF, for 14 days, or until the inmate was released from custody, if the release occurred prior to the expiration of the 14-day period. Amici identified six instances after March 25, 2020 in which an inmate was moved out of the intake unit prior to the end of the 14-day period. Five of the six cases involved inmates who were placed on a specialized mental health housing unit before the 14-day quarantine period was completed.²⁵ Amici were not able to determine whether these six inmates were placed on cell restriction after being moved to a non-intake housing unit. Amici alerted Unity's medical director of these six transfers so that a determination can be made about the propriety of the transfers and any special precautions that should be implemented on the receiving housing units.

25 The sixth case involved an inmate who was moved to a special management housing unit and subsequently to a less restrictive mental health housing unit.

Recommendation : In instances in which inmates are transferred from the intake unit to a different unit before the 14-day quarantine period expires, defendants should ensure that appropriate housing, surveillance and monitoring is afforded to the inmate in the receiving unit.

Question Seven: How frequently do DOC medical staff and/or Unity Health Care staff meet with DOC staff and residents to inform them about COVID-19 symptoms and precautions, and what information is conveyed?

Unity providers and the DOC Medical Director report that they have conducted multiple education sessions on the housing units and during roll call at both facilities. They indicate that these sessions focus on COVID-19 symptoms and infection-control precautions. More extensive individualized education and counseling is provided on the quarantine and isolation units, which are visited at least twice daily by health care providers. Signage explaining COVID-19 symptoms and precautions is displayed in many common areas throughout both facilities. Nevertheless, the need for more intensified education of staff and inmates is apparent. Most, albeit not all, of the correctional staff and supervisors interviewed expressed substantial concerns about working in the facility in light of what they perceive as their increased risk of contracting COVID-19. Virtually all of the inmates interviewed outside of isolation units expressed fear that they would contract the virus and many of those who tested positive expressed fear that they would relapse or become infected again.

Recommendation : The defendants should consult with public health professionals regarding strategies that can be implemented to strengthen the COVID-19-related education program for both staff and inmates. Moreover, the defendants should explore appropriate supports that can be provided on an expedited basis to both staff and inmates who are living and working in an extremely stressful and high-risk environment and are at substantial risk of exposure.

Question Eight: What visitor screening is conducted? Do the thermometers used for visitor screening work and are they used properly?

Upon entry to the two facilities, all staff and visitors are required to have their temperature checked and to complete a written questionnaire with three questions. The three questions correspond to the CDC-defined symptoms of COVID-19 (i.e., fever, cough, and shortness of breath). An earlier version of the screening questionnaire included questions pertaining to recent travel to areas of the world with known COVID-19 outbreaks and known contacts with individuals with COVID-19. The DOC has updated its visitor and staff screening questionnaire in response to evolving knowledge about COVID-19.

The defendants use non-contact, infrared thermometers at the entrances of both the CDF and the CTF. According to the manufacturer's instructions the device is calibrated at the factory and calibration by a user is not necessary. One amicus recorded eight temperature readings at the two facilities, five at the CDF and three at the CTF and observed that two of the readings, both on the same night at the CDF, appeared to be inaccurate.²⁶ In both cases, the temperature reading was taken immediately adjacent to an external door and the ambient temperature outside the facility was substantially colder than the temperature inside the facility.

26 In both instances the temperature registered in the low 90 degrees. After the second apparently incorrect reading, amicus requested that another reading be taken approximately 30 seconds later, and the thermometer registered what appeared to be an accurate temperature reading.

The manufacturer's instructions for the thermometer indicate that users should "avoid drafts."²⁷ It seems probable that user error may be resulting in some false temperature readings by the staff who are screening visitors. Medical staff report that they also use non-touch, infrared thermometers in their medical practice at both facilities. Amici have not had an opportunity to determine whether the thermometers used at visitor entry points are the same model of thermometers that are used by the medical staff. However, review of electronic health records also identified a number of questionably low temperature readings.²⁸

27 The instructions also state that "if there is a significant change in the surrounding temperature, allow the thermometer to adjust to the ‘new’ temperature for at least 15 minutes before use in order to obtain a reliable result."

28 In reviewing health records, amici also noted several instances of unusually low temperatures recorded on flow sheets or on assessments, with some as low as 93 or 94 degrees.

Recommendation: Amici recommend that defendants conduct additional staff training on the use of the non-touch, infrared thermometers consistent with manufacturer Guidelines and provide guidance to staff regarding what to do when thermometers produce results that appear on their face to be inaccurate.

Nine: How do the conditions of the quarantine housing compare to conditions in nonquarantine housing, and are residents deterred from reporting symptoms?

As explained in detail below, except for the isolation units, quarantine housing units are intended to operate like all other types of housing units except for twice daily monitoring of inmates by medical staff and the use of specified PPE.

A. Daily Monitoring and Specified PPE

While both facilities have different types of specialized housing,²⁹ three broad categories of housing are implicated by Question Nine:

29 For example, both the CDF and CTF have special management units and the CDF has mental health and mental health step down units.

• Quarantine housing;

• Isolation housing; and

• Non-Quarantine/Non-Isolation housing (i.e., general population or some type of special housing unit)

The DOC began operating quarantine housing units in March 2020. These units are designated for the following inmates: inmates suspected of having COVID-19 and inmates who are asymptomatic but determined to have been exposed to someone who has tested positive. Health care staff report that when one inmate on a housing unit tests positive, every inmate in the housing is quarantined on the unit. Moreover, staff who have been assigned to the unit are released from duty for a 14-day self-quarantine period. There is a reported practice of maintaining each discrete cohort of quarantined inmates separately. The anecdotal evidence suggests that there may be deviations from this practice; however, amici have not had an opportunity to explore this issue. Additionally, amici have not had an opportunity to confirm the quarantine procedures that are implemented when DOC staff who are assigned to posts with inmate contact test positive for COVID-19 (i.e. , whether inmates are quarantined after exposure to a staff member who is known to have contracted COVID-19).

According to the current DOC policy guidance, quarantine housing units should operate like all other housing units except for the isolation units, in all respects except two: 1) inmates housed in quarantine units have their temperatures monitored by medical staff twice daily; and 2) except for inmates -- who are required to have masks -- anyone entering a quarantine housing unit is required to wear gloves and a mask at all times.³⁰ During the site visits amici conducted at multiple quarantine units in both facilities, for the most part the correctional staff wore a variety of masks that they had purchased for themselves. In some instances, the masks were ill-fitting and in poor condition. As a general matter, the correctional staff were not wearing gloves.

30 See § VII. Medical Restrictive Housing Unit (Quarantine), Post Order, dated March 28, 2020.

DOC policy requires inmates housed in a quarantine unit to wear masks whenever they are outside of their cells. Many inmates housed in the quarantine units that amici visited had masks, but they were not consistently wearing them nor were they required by the correctional staff to do so. In some instances, the masks were ill-fitting, visibly soiled, and ripped.

In contrast to the quarantine units, inmates and staff on non-quarantine units did not have masks during the site visits amici conducted.³¹ The defendants did not have sufficient quantities of masks for staff or inmates during March; however, as explained in the next section of this report, the DOC received a shipment on April 10, 2020, and on the next day began issuing masks to staff at roll call. The defendants report that earlier this week, subsequent to amici's site visits, they began to replace masks for inmates on a daily basis and are now providing masks to all inmates on all housing units. On April 14, 2020, the defendants reported that they are now requiring all staff and all inmates to wear masks. Amici have not had an opportunity to confirm these representations. B. Conditions in Quarantine and Other Units Except Isolation

31 A small number of inmates who indicated that they had serious medical conditions had masks that were obtained from health care providers.

1. Cell Restriction

The defendants implemented a Medical Stay in Place policy directive on April 4, 2020.³² Pursuant to the directive, as of April 4, 2020, inmates housed in quarantine and other housing units, except for isolation units, have been restricted to their cells except for 30 minutes each day for phone calls, showers and cleaning their cells. The directive provides contradictory information regarding out-of-cell time. In relevant part it states that inmates "will largely be restricted to their cells with the exception of a modified recreation schedule, where groups no larger than five are out at any one time."³³ However, the directive also requires staff to "[s]top all group activities and minimize the number of residents participating in recreation on tier (no more than 10 at a time)."³⁴ It also states that inmates are required to "practice social distancing of six feet to the fullest extent possible."³⁵ According to facility management, at some point after the policy was issued, it was modified to require one hour of out-of-cell time; however, during site visits many correctional staff and inmates amici interviewed were unaware of this change. Indeed, inmates consistently commented that it is not really possible to shower, make one phone call and clean a cell in 30 minutes.

32 Ex. 6, Medical Stay in Place, effective April 4, 2020.

33 Id. at 1.

34 Id. at 2.

35 Id. at 1.

During site visits to quarantine and non-quarantine units, amici observed the following:

• More than five inmates were consistently out of their cells at one time, and sometimes between 10 and 20 inmates were out of their cells at one time; and

• Social distancing practices were not enforced and there were no attempts by the correctional staff to enforce social distancing even when numerous inmates crowded into a contained area (e.g., to watch television).

The failure to enforce social distancing requirements is a supervision deficit. This appears at least in part to be attributable to significant understaffing of correctional officers and their supervisors at both facilities. According to data obtained from managers at the CDF and CTF, as of April 10, 2020, the CDF had a total staffing complement of 675 correctional staff (493 correctional officers and 182 supervisory staff) and the CTF had a total staffing complement of 283 correctional staff (259 correctional officers and 24 supervisory staff). In response to inquiries from amici , the DOC Human Resources Unit was unable to provide a breakdown of current correctional officer and supervisory staffing levels at the CDF and the CTF, including, for each facility, the number of funded positions that are vacant and the number of staff assigned to the complement who are unavailable for duty for quarantine or some other COVID-19 related status.³⁶ However, management staff in the DOC Human Resources Unit were able to provide aggregate data regarding the agency's total correctional workforce that provides insight into current staffing level at both facilities. According to these data, the DOC has a current workforce of 994 funded correctional positions, 45 of which are vacant. Of the remaining 949 positions, 281 correctional staff were unavailable for duty as of April 16, 2020. Thus, approximately one third of the total funded correctional work force is unavailable to work.³⁷

36 Many categories of leave render staff unavailable for duty, including workers compensation, administrative leave, AWOL status, military leave, leave without pay, and family and medical leave.

37 In addition to the CDF and CTF, the data the defendants provided indicate that the total workforce includes correctional staff assigned to a transportation unit and to the Central Cell Block.

According to DOC managers, the reduction in the size of the workforce that is available for duty has fueled excessive reliance on overtime in order to cover a minimum number of essential posts at both facilities. In response, both facilities converted recently from staffing three eight-hour shifts per day to two, 12-hour shifts per day during weekdays. During this period when the workforce is already stretched thin, there is also an enhanced need for active, direct supervision of inmates to enforce social distancing to mitigate the risk of transmission of the highly infectious novel coronavirus. With fewer available correctional staff and supervisors available to fill essential posts, the DOC has less flexibility to adopt strategies involving increased staff levels to achieve social distancing policies on housing units.

Telephone calls in settings that allow for confidentiality are arranged at both the CDF and CTF by DOC case management staff. DOC staff report that most of the case managers assigned to provide services for inmates at both facilities are either on quarantine status or working remotely. Thus, as a general matter, there has been no access to confidential legal calls for inmates confined on quarantine and non-quarantine housing units. There is some evidence that the defendants recently began to allow scheduled legal calls using the telephones in the housing unit day rooms. These telephones are used by inmates to make monitored telephone calls. Amici have not had an opportunity to determine whether the scheduled legal calls are monitored; however, even if they are not monitored, the telephones in the housing unit day rooms do not afford the confidentiality required to communicate with counsel.

2. Conditions in Isolation Relative to Other Units

Inmates housed in isolation units at both the CDF and CTF are restricted to their cells. Inmates in isolation at the CTF are not permitted to use the telephone for any reason, including legal calls. During the site visits amici conducted, inmates in isolation at the CDF were able to make monitored telephone calls from their cells. Amici were recently informed this may no longer be the case; however, we have not had an opportunity to follow up. Medical staff visit inmates in isolation at least twice per day to check temperatures, vital signs, and conduct assessments if indicated.

The first cohort of inmates who were isolated for COVID-19 were housed in a special management unit at the CTF. Several inmates in this cohort report that they were handcuffed when escorted to and from the showers. Showers are no longer afforded to inmates in the isolation housing units. To the extent they can bathe, inmates on isolation status must use the sinks in their cells to do so. The supply of towels does not appear adequate. In lieu of showers, the defendants planned to provide inmates on isolation status with body wipes, which were not available until April 14, 2020.

The evidence indicates that inmates have spent up to and even over two weeks on isolation status. Analysis of housing assignment data associated with the first 15 inmates who tested positive for COVID-19 shows that the inmates in this sample were housed on isolation status for a minimum of five days. Three inmates in the sample had already spent 12, 14, and 15 days, respectively, in isolation status and remained in isolation as of the date of this analysis.

Laundry services for inmates in isolation has been limited. Many inmates reported wearing the same clothes throughout their stays in the isolation units, and in fact most of the inmates amici met wore visibly soiled clothing and reported substantial delays in receiving fresh linens. Most of the inmates amici interviewed in the isolation units stated the conditions are far too punitive, noting that if they had it to do over again, they would not have reported their symptoms. Deprivation of showers, the absence of any ability to contact family members, the lack of access to legal calls, clean clothing and clean linens are plainly a disincentive and are likely to deter inmates from reporting symptoms of COVID-19.

Recommendation : Amici recommend that the defendants take immediate steps to provide consistent and reliable access to legal calls, personal telephone calls, daily showers, and clean clothing and clean linens to all inmates on isolation status. The defendants should ensure appropriate and consistent implementation of social distancing policies by addressing limitations in current staffing levels, supervisory oversight of line staff, and provide enhanced education related to the importance of social distancing.

B. ENVIRONMENTAL HEALTH & HYGIENE

Question One: What are the quantities of personal protective equipment and cleaning products in the DOC stockpile?

As of April 17, 2020, the DOC reported to amici the following inventory of PPE:

Personal Protective Equipment:

• Surgical Mask: 71,680

• N95 Respirators: 12,774

• Face Shields: 190

• Goggles: 200

• Gowns: 2,400

• Gloves: Total Not Available³⁸

• Small PPE Kits: 400

38 DOC representatives provided data indicating that between March 28, 2020 and April 15, 2020, 39,237 pairs of gloves were used.

According to the DOC estimates, based on current usage rates, as of April 17, 2020, the defendants had approximately a 32-day supply of masks on hand. The DOC Compliance Officer informed amici that the processing of additional procurement orders was underway.

As of April 13, 2020, the DOC reported to amici that the following inventory of cleaning products was stored on site.

Cleaning Products:

• Ecolab Disinfectant: 144, 2.5-gallon cases;³⁹

• Ecolab Peroxide Multi Surface Cleaner/Disinfectant: 32, 2-gallon cases;

• Ecolab Multi-Quat Sanitizer: 139, 2.5-gallon cases;⁴⁰

• Ecolab Orange Force: 129, 2.5-gallon cases; and

39 This product is dilutable to make larger volumes of solution.

40 This product is dilutable to make larger volumes of solution.

• Ecolab Glass Cleaner: 30, 2.5-gallon cases.

Question Two: Are residents provided with a weekly bar of soap?

Many inmates amici interviewed reported that they purchase soap through the commissary. Most explained they had access to soap through the housing unit officers and everyone interviewed at their cells was able to show amici their bars of soap. There were limited supplies of soap available for distribution in a number of the housing units. Inmates housed in special management units are provided with small packets of liquid soap; they are not provided with bars of soap.

Question Three: Do staff who interact with visitors and residents have access to, and wear, sufficient personal protective equipment?

Staff who interact with visitors have access to and wear sufficient PPE. Amici observed screening staff posted at the entrances of both the CDF and the CTF wearing PPE consistent with CDC Guidelines.⁴¹ Additionally, staff assigned to units housing inmates who are COVID-19 positive wore PPE consistent with CDC Guidelines, including N95 respirators, eye protection, gloves, and a gown. None of the correctional staff interviewed who were wearing N95 respirators reported that they had been fitted for them as required by the Occupational Health and Safety Administration.

41 CDC Guidelines recommend that staff performing temperature checks on any group of people wear a mask, eye protection, gloves, and a gown or coveralls. See Ex. 7, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 23, 2020 at 25.

The defendants issued post orders for quarantine and isolation housing units on March 28, 2020 that included minimum PPE requirements.⁴² Nevertheless, as of April 10, 2020, the day of the first unannounced site visit, amici observed that the post orders were not being adhered to and there was no clear, common understanding among the staff amici interviewed regarding what PPE they should wear. Most staff expressed considerable anxiety about not having access to appropriate PPE. Some staff were observed wearing masks that they purchased and brought to the facility themselves, few staff wore gloves, and other staff wore no PPE at all. Multiple staff stated that prior to April 10, 2020, PPE was not widely distributed to correctional officers.

42 See supra note 30 regarding the March 28, 2020 DOC policy applicable to quarantine housing units. On the same day the defendants issued a post order for isolation housing units. The PPE requirements in the post order related to the isolation units includes only a mask and gloves, less than the PPE recommended in the CDC Guidelines. As previously noted, however, in practice, in contrast to the observations amici made in the quarantine units, amici observed correctional officers on the isolation units wearing PPE consistent with CDC Guidelines.

Amici were informed that beginning on April 10, 2020, masks and gloves were being distributed to correctional officers at the start of each shift. Over the course of the three days of site visits, amici observed that PPE was more consistently worn by staff throughout the facilities and staff stated that there was an abrupt increase in the PPE that was distributed to correctional officers. As noted above, the defendants reported that earlier this week, subsequent to amici's site visits, they began to replace masks for inmates on a daily basis and are now providing masks to all inmates on all housing units. On April 14, 2020, the defendants reported that they are now requiring all staff and all inmates to wear masks at all times. Amici have not had an opportunity to confirm these representations.

Recommendation : Amici recommend that the defendants communicate clear expectations, in writing, to correctional staff about the types of PPE required to perform the various supervision and operational functions that are conducted throughout the facility, including the PPE they should expect to be given on each shift for each specific category of post assignment; the proper donning, doffing and disposal of the PPE; and an explanation of the related rationale. Clear communication to staff regarding differences in risk exposures and providing consistent PPE over time could help lower anxiety levels among staff.

In addition, the defendants should also ensure that all PPE issued is properly fitted. For example, N95 respirators must be properly fitted to ensure that they provide the intended protection. As noted above, during the site visits that amici conducted, none of the correctional staff who were wearing N95 respirators in isolation units reported that they had been fitted for the respirators.

Finally, defendants must ensure that all DOC staff receive instruction on the proper disposal of PPE, and appropriate and accessible receptables for immediate disposal must be readily available. During the site visits, amici observed that receptables for disposal of PPE were not accessible on a consistent basis, including to staff assigned to isolation units at the CTF.

Question Four: Are staff and prisoner-workers given masks and gloves, particularly in food service, and are they instructed to wear that equipment?

Amici toured the Culinary Unit at the CDF on April 11, 2020. At that time, all correctional staff and contractors were wearing masks, hairnets, and gloves. There were no inmate workers in the Culinary Unit during the site visit. They had been replaced by correctional officers. Amici learned that the inmate work detail in the Culinary Unit was suspended because an inmate housed at the CDF, who had been assigned to the detail for at least several months, tested positive for COVID-19 on April 10, 2020. Amici have not had an opportunity to confirm the instructions regarding the use of masks and gloves that DOC staff, contractors, and inmates working in the Culinary Unit receive; however, during the site visit amici observed the consistent use of masks, gloves, and hairnets by the numerous contractors and DOC staff who were working in the food service area.

An interview conducted by amici with a supervisor for the food service contractor, (who reported working in the CDF Culinary Unit since the latter part of 2019), revealed that the contract staff assigned to the CDF did not know why the inmate detail workers were no longer working and had been replaced by correctional officers. In light of the fact that it appeared the detail inmate who tested positive prepared and served food along with the contractor's staff for at least several months, amici sought to ascertain whether the DOC made any attempt to determine whether the contract staff who worked alongside the detail inmate who tested positive were "close contacts" as defined by the applicable CDC Guidelines.⁴³ According to the Guidelines, "an individual is considered a close contact of a COVID-19 case if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g. , have been coughed on)."⁴⁴ The Guidelines further provide that all staff who were a close contact of the inmate, whether employed by DOC or by the contractor,⁴⁵ should have been placed on self-quarantine status. Specifically, the Guidelines provide that if a staff member or contractor is identified as a close contact of a COVID-19 case (whether in the facility or in the community) that staff member should self-quarantine at home for 14 days and may return to work if symptoms do not develop after the 14-day period.⁴⁶ It appears that these Guidelines have not been implemented with respect to any contractors who were in close contact with the detail inmate who tested positive for COVID-19.

43 See Ex. 7 at 3.

44 Id.

45 The CDC Guidelines define staff as "all public sector employees as well as those working for a private contractor within a correctional facility (e.g. private healthcare or food service). Except where noted, "staff" does not distinguish between healthcare, custody, and other types of staff including private facility operators." Id. at 4.

46 Id. at 12.

According to the DOC administrator and staff responsible for the food service contract, on the morning of April 11, 2020, the DOC food contractor was informed that a detail inmate had tested positive and that the contractor's workers should self-quarantine if they did not feel well. It appears that no effort was made to determine whether any of the contract food service workers were a "close contact" of the detail inmate who tested positive. Indeed, amici contacted the DOC Medical Director, the Unity Medical Director, the Unity Infection Control Specialist, the DOC Deputy Director responsible for the food service contract, the DOC General Counsel, and lead counsel for the defendants in this litigation to inquire about this matter. Based on the responses they provided to amici's inquiries, it appears that any contact tracing that may have been conducted did not include consideration of whether the food service contractors who worked alongside the detail inmate who tested positive might be deemed a close contact who should have been quarantined for 14 days. Amici's understanding is that the detail inmate who tested positive was not contacted about any individuals with whom he had close contact. Moreover, it does not appear that any effort was made to contact public health experts at the D.C. Department of Health to receive guidance about this matter. In light of the implications attendant to having a close contact continue to work in the CDF Culinary Unit, promptly after learning about this matter amici alerted counsel for both parties about their concerns.

Amici's inquiries regarding the contact tracing conducted in the wake of the detail inmate's positive COVID-19 test results revealed that at least in this instance the defendants employed a fractured contact tracing effort that was not centralized nor informed by public health experts.⁴⁷ Recommendation : If they have not done so in the wake of amici's inquiries, the defendants should seek immediate guidance from public health professionals about identification of the detail inmate's close contacts. Moreover, it is important to recognize that the defendants are working in an extremely challenging environment that requires a well-coordinated response to the range of infection control issues that are presented throughout the course of each daily shift. Any individuals who are tasked with conducting contact tracing after a confirmed positive COVID-19 test should have appropriate training and be closely supervised.

47 The DOC Medical Director informed amici that she had seen email correspondence regarding the issue but had not been involved in advising staff about how to handle this matter. The Medical Director referred amici to the DOC Deputy Director for Administration to determine whether contact tracing related to the contractor's staff had been conducted. The Deputy Director was contacted and informed amici that the contractor was notified that the contractor's workers should self-quarantine if they did not feel well. There was no recognition of the fact that food service contract workers may have potentially been close contacts of the detail inmate who tested positive and should have been quarantined regardless of how they felt. Moreover, in response to amici's inquiries, the manager of Unity's infection control program at the CDF advised amici that Unity's involvement was limited to determining the identity of the inmates and health care providers who may have had contact with the detail inmate while he was in the medical unit.

Question Five: Do residents have access to cleaning supplies in sufficient quantity and concentration, including rags, to clean their cells?

Amici reviewed records of cleaning supply deliveries to the CDF and CTF to assess whether supplies were made available to the facilities. Department of Corrections records indicate that there have been regular deliveries of cleaning supplies to both facilities since December 31, 2019, the start of the dataset reviewed.⁴⁸ Delivery records reflect that historically three types of cleaning and sanitizing agents were made available to clean housing units and that in mid-March 2020 a fourth, peroxide-based multi-surface cleaner was also made available.⁴⁹

48 Ex. 8, Table, Dates and Quantities of Cleaning Supplies and Soap Delivered to the CDF and CTF, by Date, December 31, 2019 – April 13, 2020.

49 The manufacturer's product description states that it is "effective against emerging viral pathogens after the CDC has declared an outbreak."

Observations and interviews with inmates and staff indicated that inmate access to sufficient cleaning supplies on housing units varied from unit to unit. For example, on one unit, all of the cleaning supplies had been depleted.⁵⁰ Furthermore, on several units that had a supply of cleaning agents, inmates reported that they were unable to access them to clean their own cells. Amici did not observe any inmates with facility-issued rags that could be used to clean their cells. Most inmates who were interviewed reported that they made rags by tearing facility-issued towels or t-shirts, a phenomenon amici observed. For the most part, these make-shift rags were tattered and soiled. Amici observed that paper towels were available for inmates to use for cleaning on a small number of housing units, but this was not common and on one of the units, the inventory of paper towels was extremely low.

50 Ex. 9, Photograph of empty cleaning supply containers, Correctional Treatment Facility, Building D, April 12, 2020.

Amici could not assess whether the concentrations of disinfecting and sanitizing solutions were mixed in the appropriate concentrations necessary to achieve their intended effects. It was evident that knowledge regarding the appropriate use of the different cleaning and sanitizing agents was generally at a very low level.

Access to cleaning and sanitizing solutions is necessary, but not sufficient. Knowledge of proper mixing and appropriate application of cleaning and sanitizing solutions is also necessary. For example, at least two of the products that the DOC distributes – a concentrated surface cleaner and a concentrated sanitizing solution – have prescribed dilution ranges (i.e. , must contain a minimum concentration of the chemical agent, which has implications for how much water can be added to the concentrate before the agent is no longer effective). One of these products also has specific prescriptions regarding how long the product must remain on a surface for it to reduce pathogens to indicated levels.

The DOC assigns correctional officers to "environmental posts" and these officers are responsible for cleaning and sanitizing assigned zones of the facilities. One environmental officer informed amici that he had never received formal training, but rather reviewed his responsibilities with his supervisor and acknowledged that it had "been a while" since that discussion occurred. The same officer noted that he had begun to mix his own bleach solution to sanitize the areas of the facility he was responsible for and relied on his own judgement regarding the appropriate concentration of bleach solution.

Recommendation : There is a critical need for the defendants to strengthen the environmental health and safety program at both the CDF and the CTF. Amici recommend that the DOC immediately retain a registered sanitarian to oversee the environmental health and safety programs at both facilities and provide training so that cleaning tools and products are used properly. A registered sanitarian should bring the appropriate knowledge, oversight, and quality control necessary to mitigate at least some of the critical public health concerns that are evident in both facilities.

Question Six: Do housing units, and particularly common spaces such as bathrooms and showers, appear to be sufficiently cleaned?

Cleaning the common spaces in housing units is the responsibility of designated inmate "detail workers" at the CDF and CTF, who are supervised by correctional officers. As indicated in the response to Question Five, several different cleaning, disinfecting, and sanitizing solutions are available on the housing unit of both facilities. Nevertheless, the cleanliness of common spaces was inconsistent from one housing unit to the next. With cleaning responsibilities delegated to the inmate level, there is little quality control. Some housing units appeared relatively clean and tidy, others were not. This was especially the case in some of the housing units at the CDF that appeared to have significant inmate management and supervision challenges.⁵¹ In addition to the limitations in the cleanliness of some housing units, some cell block corridors had trash on the floor. Moreover, Building D at the CTF includes showers with tiles and in some of those showers there was visible mold growth.⁵²

51 In at least two housing units at the CDF, amici observed food and other refuse scattered on the cellblock floors, including on the floors under stairwells.

52 Ex. 10, Photograph of a Shower in the Correctional Treatment Facility, Building D, April 12, 2020.

Recommendation : In addition to engaging a sanitarian, supervisory correctional staff must ensure that housing unit staff properly manage the work performed by the inmate detail workers. In order to accomplish that goal, correctional staff and detail workers require guidance from a sanitarian trained to oversee the facility's environmental health program. Question Seven: Do professional cleaning crews clean hallways and common areas (not in housing units)? Do inmate details clean the housing units? common spaces?

A professional cleaning contractor was engaged to clean certain common areas on the non-secure side of both facilities on a daily basis in late March 2020. However, there was an apparent misunderstanding about the scope of the contractor's services and none of the floors in the common areas on the administrative side of both facilities were cleaned, including bathroom floors and floors in the Officer's Dining Room. The DOC Deputy responsible for the administration of the contract informed amici earlier this week that this limitation is being corrected.

Inmate detail workers clean the common areas in the housing units. They have not been adequately trained and are not appropriately supervised. The detail workers have inconsistent knowledge about the products they use and do not have adequate equipment. For example, they reuse mops and make-shift rags that do not appear to have been appropriately sanitized between uses. As part of the DOC response to COVID-19, detail workers are required to clean all surfaces in the common areas of the housing units at two-hour intervals. This appears to occur on a consistent basis; however, the efficacy of these efforts is undermined by inadequate training, limitations in supervision, the absence of any quality controls, and the apparent limitations in the equipment and possibly in the cleaning and disinfecting agents that they are using.⁵³

53 On some housing units the detail workers expressed concerns that the cleaning agents they were using had been inappropriately diluted; on others, inmates complained about fumes associated with the apparent strength of the cleaning products the detail inmates were using.

Recommendation : In addition to engaging a sanitarian, the defendants should consider contracting for professional cleaning services on the secure side of the facility at least until a sanitarian is hired to bolster the existing environmental health and safety program at both facilities. Additionally, proper cleaning supplies that have been sanitized regularly should be immediately provided to each unit, and a schedule for cleaning common areas and cells should be established and enforced.

Question Eight: Is hand sanitizer provided, or available to, to residents?

There is no evidence that hand sanitizer is provided to the inmates at either the CDF or the CTF.

Question Nine: Is social distancing possible in common areas in units and in the recreation spaces, and what is the approximate size of common areas?

Amici did not have the opportunity to measure the common areas at the CDF and CTF. However, given the configuration of the physical plant in the housing units, social distancing is possible if inmate out-of-cell time is limited to small groups of inmates at one time. However, as noted elsewhere in this report, the defendants are not enforcing social distancing requirements. Enforcing social distancing requires consistent, direct observation by staff. Ensuring that correctional officers carry these functions out requires active supervision by mid-level managers, who must provide both oversight to correctional officers and support (i.e., by ensuring officers get appropriate relief for breaks over the course of their 12-hour shifts). Amici observed numerous instances in which correctional officers assigned to housing units left their posts without relief, leaving housing units short staffed. It appears that the DOC does not have sufficient line and supervisory staff available to appropriately enforce social distancing policies.

Recommendation : The defendants should reduce the extent to which common spaces encourage inmates to congregate in close quarters (e.g., around a single television in a small enclosed area, or next to one another in order to use telephones that are mounted closer than six feet apart). The effectiveness of this strategy would increase if the defendants were to consistently apply their stated policy of allowing no more than small groups of inmates out of their cells at any given time. Whatever strategies the defendants adopt, increased active and direct supervision will be required by both housing unit correctional officers and the midlevel managers responsible for overseeing and supporting the correctional officers assigned to housing units. Enforcing social distancing standards as a public health measure is a new responsibility for correctional staff and they must be supported as they adjust to this new role. Moreover, the defendants should assess whether any additional security staff are needed to provide appropriate supervision, on a unit-by-unit basis, taking into consideration the layout of the housing units, the number of inmates housed on the units, and the security designation of the unit, in order to enforce social distancing policies.

Question Ten: Approximately how many residents share a cell, and what is the approximate size of the cell?

Amici analyzed individual-level inmate housing data for the period between March 15, 2020 and April 13, 2020. At the CDF, as of April 13, 2020, 586 inmates, 56 percent of the population, shared a cell.⁵⁴ At the CTF, as of April 13, 2020, 22 inmates, five percent of the population, shared a cell.⁵⁵

54 See Ex. 1, supra note 4.

55 See Ex. 2, supra note 9.

A representative-sized cell was measured at each of the two facilities. The selected cell at the CDF measured 85.6 square feet and the selected cell at the CTF measured 72.4 square feet.

Question Eleven: Do all residents have access to sinks, soap, and toilets in their cells?

As noted above, at the CDF, all cells include sinks and toilets. At the CTF, the housing units in the portion of the facility known as Building D contain cells without sinks and toilets. Inmates assigned to housing units in Building D share common sinks and toilets. On each housing unit there are two, double-tiered corridors of cells. Each tier of each corridor is comprised of eight cells. Inmates housed in the eight cells share two sinks, two toilets, and a shower. The cell doors in Building D, by design, do not lock in order for inmates housed in the cells to access the sink and toilet without the intervention of a correctional officer. Amici identified multiple sinks and toilets in housing units in Building D that were not functional or out of service at the time of the site visit.

Representatives of the DOC stated that every inmate receives a facility-issued bar of soap each week. Every inmate that amici spoke with indicated that they possessed at least one bar of soap. Some inmates verified that soap was distributed to them weekly; however, others stated that they had purchased their soap from the commissary and that soap was not distributed weekly. There were multiple reports that inmates sometimes use their bars of soap to clean their clothes in the shower and under those circumstances a single bar of soap does not last an entire week.

V. Conclusion

Communicable disease outbreaks in locked facilities such as jails and prisons where individuals live in close proximity can spread rapidly through a population if not addressed quickly with appropriate prevention, detection, and management systems. The current novel coronavirus pandemic, which is already present within both the CDF and the CTF, poses a serious risk to the health and safety of inmates and staff alike.

This report describes certain efforts undertaken by the DOC to respond to the current public health emergency. DOC staff and Unity's contract providers should be commended for performing essential public health and safety functions while knowingly exposing themselves to significant health risks on a daily basis.

In light of the limitations identified in this report, substantial effort must be undertaken to ensure that the DOC manages its response to COVID-19 in a manner that ensures conformity with CDC Guidelines. This will require active on-site support at both facilities from public health professionals. For example, contact tracing must be strengthened, staff and inmate education on relevant public health considerations must be intensified, and business processes must be refined to ensure inmates and staff presenting with symptoms potentially consistent with COVID-19 are quickly identified, tested and isolated. Moreover, on an expedited basis, the defendants must provide inmates in isolation who have tested positive for COVID-19 with access to showers, clean clothing, clean laundry, personal telephone calls and legal calls.

Amici's investigation reveals that there is an equally urgent need for the DOC to substantially bolster the agency's environmental health program in the immediate and longer term. A professional sanitarian with appropriate health and safety credentials should be charged with organizing and managing the DOC's environmental health program to ensure, among other matters, appropriate cleaning and sanitizing practices are implemented, regular facility inspections are conducted, and corrective actions are undertaken to resolve systemic risks. In the immediate term, the defendants should ensure that they have a sufficient number of both line level and supervisory staff throughout both facilities to promote appropriate supervision and enforce the altered operational policies adopted to address the contagion during this public health crisis.

As amici were in the process of finalizing this report, defendants provided counsel for plaintiffs and amici with a copy of an April 27, 2020 memorandum from the DOC Director, Quincy Booth, to all DOC employees and contractors.⁵⁶ The memorandum addresses COVID-19 policies and procedures, including updated policies and procedures that appear to be intended to respond to the matters addressed during the April 15, 2020 teleconference. In light of the current filing deadline, amici have not had an opportunity to consider the content of the memorandum, but have included it in the appendix to this report so that the Court can be promptly apprised of the most current information that the defendants have provided. Amici recognize the substantial challenges that confront both parties and are available to answer any questions the Court or the parties have about the matters addressed in this summary report.

56 Ex. 11, Memorandum from Quincy L. Booth, Director, to All DOC Employees and Contractors, April 17, 2020, Reminders and Updated COVID-19 Policies and Procedures.

Respectfully submitted,

/s/ Grace M. Lopes

Amicus Curiae

Grace M. Lopes

Bar No. 358650

Executive Director

Rising for Justice

901 4^th Street, N.W., Suite 6000

Washington, D.C. 20001

202-607-2224

gmlopes@risingforjustice.org

Mark Jordan

mark@markjordan.consulting

1220 19^th Street, N.W.

Suite 500

Washington, D.C. 20036

202-525-6732

April 19, 2020

Washington, D.C.

INDEX TO EXHIBITS

Exhibit 1 Table, Number of Cells Housing One Inmate and Two Inmates at the Central Detention Facility, March 15 – April 13, 2020

Exhibit 2 Table, Number of Cells Housing One or Two Inmates at the Correctional Treatment Facility, March 15, 2020 – April 13, 2020

Exhibit 3 Chart, Urgent Care Visits at Central Detention Facility and Correctional Treatment Facility by Day, February 15, 2020 – April 15, 2020

Exhibit 4 Chart, Sick Call Requests and Encounters By Day, February 15, 2020 – April 12, 2020

Exhibit 5 Chart, Urgent Care Medical Encounters with Clinical Summary Descriptions Including Word COVID by Day, February 15, 2020 – April 15, 2020

Exhibit 6 Medical Stay in Place Policy Directive, April 4, 2020

Exhibit 7 CDC Interim Guidelines on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 23, 2020

Exhibit 8 Table, Dates and Quantities of Cleaning Supplies and Soap Delivered to the CDF and CTF, By Date, December 31, 2019 – April 13, 2020

Exhibit 9 Photograph of empty cleaning supply containers, Correctional Treatment Facility, Building D, April 12, 2020

Exhibit 10 Photograph of Shower, Correctional Treatment Facility, Building D, April 12, 2020

Exhibit 11 Memorandum from Quincy L. Booth, Director to All DOC Employees and Contractors, April 17, 2020, Reminders and Updated COVID-19 Policies and Procedures

Ex. 1

Ex. 2 Ex. 3

Ex. 4 Ex. 5 Ex. 6

Ex. 7

Ex. 8 Ex. 9 Ex. 10

Ex. 11

GOVERNMENT OF THE DISTRICT OF COLUMBIA

DEPARTMENT OF CORRECTIONS

Office of the Director

MEMORANDUM

TO: All DOC employees and contractors

FROM: Quincy L. Booth, Director

DATE: April 17, 2020

SUBJECT: Reminders and Updated COVID-19 Policies and Procedures

This memorandum serves as a reminder to all District of Columbia Department of Corrections (DOC) staff and contractors of the agency's COVID-19 policies and procedures, informed by some new guidance from Mayor's Order 2020-06, dated April 15, 2020. It is imperative that the following policies and procedures are enforced and maintained:

1. Social Distancing Measures

a. Correctional officers must enforce social distancing in DOC's correctional facilities at all times.

b. There shall be multiple daily announcements over the agency's public address (PA) system reminding staff and residents of social distancing. Specifically, the PA announcement shall remind residents to stay at least six feet apart from each other and not to gather in groups.

c. Strict limits on the number of persons out of their cells at one time will help with social distancing. In general, only six residents from a unit will be out at one time for out of cell time, plus an occasional two to three cleaning detailees.

d. Group activities, such as classes, shall continue to be suspended for the duration of the emergency period.

2. Resident out of cell time

a. All DOC residents, except those on isolation units, shall be allowed one hour of out of cell time each day.

b. PA announcements shall be made daily to remind DOC staff and residents that out of cell time is one hour per day.

3. Personal Protective Equipment (PPE), COVID-19 and Sick Call Education Training

a. DOC shall conduct PPE refresher courses for its staff during roll call of each shift, until otherwise directed. These courses are and shall continue to be documented by DOC.

b. DOC's medical staff and sick call staff shall visit DOC's housing units to refresh staff and residents on PPE use, COVID-19 prevention and how to submit sick call slips for medical visits, until otherwise directed. These visits shall be documented by DOC.

c. All DOC staff shall wear PPE in compliance with Centers for Disease Control guidelines while working in DOC's correctional facilities.

4. Isolation Units

a. All residents housed in isolation units shall be allowed to shower each day.

b. All residents housed in isolation units shall be allowed, each day, free 30-minute legal calls to their attorney of record on an un-secure and non-monitored telephone line. Notably, a "rolling phone" will be transporting to the residents’ cells for legal calls.

c. DOC shall provide tablets with entertainment and education content pre-programed and activity packets (pamphlets with education materials) to residents housed on isolation units who feel well enough to use them.

5. Unit Common Area and Cell Cleaning

a. At the beginning of each shift, correctional officers working in DOC housing units shall document the amount of cleaning product and equipment available in the housing unit. Any shortages of cleaning product and equipment shall be documented by the correctional officer on duty and he/she

shall notify his/her supervisor of any shortages so that additional cleaning product and the equipment may be ordered for the housing unit.

b. During a resident's out of cell time, correctional officers shall spray towels with cleaning product and provide the resident with the cleaning product sprayed paper towels and dry paper towels to clean his/her cell.

c. During each shift, correctional officers working in housing units shall verify and document that the housing unit's common areas are cleaned in accordance with DOC's cleaning schedules.

d. DOC shall post listings of all cleaning products and equipment available to residents in each housing unit.

e. Cleaning product are diluted appropriately by DOC's environmental team before being provided to the units; there is no need for further dilution.

6. Linen and Laundry Exchanges

a. Each week, DOC shall provide its residents with fresh clothing and undergarments (laundry) and towels and sheets (linens) and collect the residents’ used items as part of the agency's laundry and linen exchanges.

b. If a resident refuses to participate in either exchange, he/she will still be provided with fresh laundry and linen, if supplies are available.

7. Contractor and Staff Screening and Hygiene

a. All staff and contractors who enter DOC's facilities (except emergency personnel responding to an emergency) shall continue to undergo a COVID-19 screening, including a temperature check with a contactless infrared thermometer, and answering of brief questions designed to spot early signs of COVID-19 infection.

b. All entrants who fail the COVID-19 screening shall be denied entry to DOC's facilities.

c. All staff responsible for COVID-19 screenings shall be re-trained on the use of contactless infrared thermometers.

d. Non-essential visitors shall continue to be excluded for the duration of the emergency.

e. Following the screening and before starting their tour of duty, entrants shall wash their hands with soap and water for at least twenty seconds to prevent the spread of disease.

f. Staff who have been determined to have recently been in sustained, close contact with another staffer or inmate who tests positive for COVID-19 will be informed, consistent with privacy protections, and directed according to protocol.

8. Access to Legal Calls

a. All residents shall be allowed, each day, free 30-minute legal calls to their attorney of record on a non-secure and un-monitored telephone line.

b. DOC staff shall cooperate to facilitate residents’ receipt of incoming calls from their attorney. Specifically, DOC's Case Management team has and will continue to coordinate legal calls between DOC's residents and their attorney.

9. Medical Care

a. DOC staff who observe a resident exhibiting symptoms of COVID-19 shall direct the resident to medical care, and medical staff will determine appropriate next steps for the inmate's health and the health of those nearby.

10. Tablets

a. Inmates may have the tablets in their cells at least for the duration of the Public Health Emergency.

b. To facilitate the sharing of the tablets by residents, all tablets shall be sanitized between use by different residents.

ALSO, PLEASE BE ADVISED:

1. Single Cells: DOC is balancing the competing needs to protect residents’ mental health and prevent anxiety, self-harm, and suicide with the goal of providing single cells where possible to reduce the spread of COVID-19. Cooperate as directed in facilitating resident moves to make better use of our space as our population decreases.

2. Medical Reserve Corps Assistance: You may see new staffers on the units, as DOC is requesting staff augmentation through the Medical Reserve Corps (Corps). Corps members (thirty are being requested) may perform such tasks as assisting with temperature checks for incoming staff and contractors; checking residents’ temperatures daily; helping in the medical unit and isolation units; and performing such other duties as may be required. Their valued service will be of great assistance as needs are higher during this challenging time.

3. Provision of Tablets Presently, DOC does not have a tablet for every resident. Thus, we are requesting additional tablets to eliminate the need to share, and to enable residents to communicate with their attorneys through the tablets, as well as to enjoy the entertainment, inspirational, and educational offerings that are pre-loaded. Activity packets shall also be provided to residents upon request.

4. Quarantine of new arrivals. Be advised that new intakes to the facility are placed in an "enhanced monitoring" for 14 days and should be presumed not to have COVID-19. However, if the new intake develops COVID-19 symptoms during the "enhanced monitoring" period, they will be tested for COVID-19 and moved to a quarantine housing in until the agency receives their test results. If they test positive, they will be housed in an isolation unit for treatment. If they test negative, they will remain in a quarantine unit until they are no longer symptomatic.

5. Mobile testing: As mobile testing becomes available, DOC will request its deployment to its facilities to screen staff and residents, per CDC and DOH guidelines.

THIS MEMO SHALL BE READ DURING ROLL CALL DURING THE NEXT SEVEN CONSECUTIVE DAYS AND POSTED ON ALL APPROPRIATE BULLETIN BOARDS.

Attachment

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 May 11, 2020 2:00 p.m. TRANSCRIPT OF TELEPHONE CONFERENCE BEFORE THE HONORABLE COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFFS: (Appearing Telephonically)

ARTHUR B. SPITZER SCOTT MICHELMAN, 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

APPEARANCES, CONT'D:

FOR THE DEFENDANTS: (Appearing Telephonically)

ANDREW SAINDON, ESQ. MICAH IAN BLUMING, ESQ. PAMELA DISNEY, ESQ. FERNANDO AMARILLAS, ESQ. OFFICE OF ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 Fourth Street, Northwest Sixth Floor Washington, DC 20001

APPEARING TELEPHONICALLY:

ERIC GLOVER, ESQ. MICHELLE WILSON, ESQ. GENERAL COUNSEL DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS 2000 14th Street, Northwest Washington, DC 20009

GRACE LOPES MARK JORDAN (AMICI CURIAE)

REPORTED BY: (Telephonically)

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

THE COURT: All right. It's 2:00. This is Judge Kollar-Kotelly. This is in the matter of Banks, et al., versus Booth, et al., 20-CV-849.

I have from the court staff the deputy courtroom clerk, my law clerk and the court reporter.

Somebody has not muted their phone.

I have certain people which I will call on. These will be speakers or potential speakers. They will be the amici experts; Plaintiffs, whom they've identified; the Defendants, including the Department of Corrections counsel; as well as the United States.

So let me find out whether -- Ms. Lopes, are you on the phone?

MS. LOPES: Good afternoon. Yes.

THE COURT: Good afternoon.

Mr. Jordan, are you on the phone?

MR. JORDAN: Yes, your Honor. Good afternoon.

THE COURT: Good afternoon.

Mr. Marcus, are you on the line?

MR. MARCUS: Good afternoon, your Honor.

THE COURT: Good afternoon.

Mr. Anderson, are you on the line? MR. ANDERSON: Yes, your Honor. Good afternoon.

THE COURT: Good afternoon.

Ms. Cobb?

MS. COBB: Yes, your Honor. Good afternoon.

THE COURT: Mr. Perloff?

Maybe's not on the line yet.

Scott Michelman?

He's not on the line yet. I should give him a few moments in case he's muted.

MR. MICHELMAN: I'm sorry. I was on mute, your Honor. This is Mr. Michelman. I was on mute. My apologies.

THE COURT: I know it takes a moment. Thank you for muting.

Mr. Perloff, are you on now or not?

MR. SPITZER: Your Honor, I believe he's listening on the public line.

THE COURT: Okay. Then that's all right.

Mr. Spitzer, are you on?

MR. SPITZER: Yes. I'm here, your Honor.

THE COURT: For the Defendant, Mr. Saindon?

MR. SAINDON: Good afternoon. I'm here.

THE COURT: Good afternoon.

Mr. Amarillas?

MR. AMARILLAS: Yes. I'm here, your Honor. Good afternoon.

THE COURT: Good afternoon.

Mr. Bluming?

MR. BLUMING: Yes. Good afternoon, your Honor.

THE COURT: Good afternoon.

Ms. Disney?

MS. DISNEY: Yes, your Honor. Good afternoon.

THE COURT: Good afternoon.

Mr. Glover?

MR. GLOVER: Yes, your Honor. Good afternoon.

THE COURT: Good afternoon.

Ms. Wilson?

MS. WILSON: Good afternoon. I'm here.

THE COURT: And, Mr. Walker, are you on for the United States?

MR. WALKER: I am on, your Honor. And good afternoon.

THE COURT: Good afternoon.

Somebody just came on. Did somebody come on that I had not called earlier?

What I would ask is we do have a public line that's automatically muted. So anybody who is not going to be on speaker, I'd ask that they be on that, simply so that when everybody comes on and off we don't keep hearing these clicks, particularly if they're not going to speak.

What I would ask is that, other than the principal speakers -- and the principal speakers obviously can refer to somebody else to answer the question, and that's fine; and I'll remind myself to give you a moment to unmute so we don't have that background jangling noise. So I will call on you.

We are here based on the order that I signed on April 28th, 2020, which was a consent order. And the amici were directed to go back to the facilities and to provide an oral report today answering -- there were five questions.

And so I think the way I'm going to do this is I'll state the question and then call on either Ms. Lopes or Mr. Jordan. Just indicate whoever wants to answer it. And once it's been answered, if I have questions, I'll do followup and I'll let the party, since we only have five questions, if there's a followup question that you want to ask, before we move on to the second question.

So let me start with the first question: How are

MS. LOPES: Your Honor

THE COURT: Sure. Who is this?

MS. LOPES: This is Grace Lopes.

Your Honor, we had some background information that we wanted to provide to the Court and the parties first that we thought would be helpful before we got into Question 1.

THE COURT: Perfect.

MS. LOPES: Some of that background information I will provide and some Mr. Jordan will be providing. He'll be addressing the first two questions and I'll be addressing the last three questions.

THE COURT: That's fine.

MS. LOPES: As a threshold matter, your Honor, there have been some changes that are material to the parties’ consideration and the clients’ consideration of the information that we'd like to convey this afternoon with respect to the five questions. So we thought it would be important to outline those changes now.

First, with respect to the jail, the population at the jail has decreased since our previous report to the Court in April. Last week, we were at the jail on May 7th and the population was 969 inmates, a significant reduction over the 1,020 who were there just a few weeks earlier when we reported on the population.

There's also been a change in terms of housing status, et cetera. As the Court may recall, there are 18 housing units at the jail. Most, albeit not all, have 80 cells. They're single versus double. Some cells are single cells; some cells are double cells.

We haven't had an opportunity to evaluate the data with respect to the prevalence of double celling versus single celling, though there are indications that there is less double celling at the jail now. And hopefully we'll be able to provide that data to the Court and the parties in our final report.

The Defendants do report that there are limitations in their ability to operate some cells that are currently vacant now because of maintenance-related issues. We don't know the prevalence of those issues at this time.

At the time of our May 7th site visit, there were 15 housing units open. Three were closed. Ten were quarantine units and one was an isolation unit for inmates who were positive for COVID-19.

That is a shift from the distribution and characterization or classification of housing units relative to our prior visit because, as you'll hear in a minute, there are more inmates who are COVID-19 positive at the jail now than there were during our previous site visit.

With respect to the correctional treatment facility, the population there this past Friday when we were there also had decreased. And the population count was 364 inmates. It had been just a few weeks earlier hovering at around 400 inmates.

As you may recall, the CTF has the inpatient infirmary, a 26-room, 40-bed infirmary. And that infirmary served both facilities. It has 27 housing units. Most have the capacity of -- not all -- for 50 beds. There are four that have as many as 96 beds and then a handful of smaller units.

No units with double cells at the time of our visit last week to the CTF. And that again is in contrast to our prior site visit in April at the CTF.

Eleven units at the CTF were closed. And in contrast to our previous visit, there were only four inmates on isolation status at the CTF. Those inmates were all housed in the inpatient infirmary.

There were no isolation housing units operating at all at the CTF and only one quarantine unit. There had been eight during our previous site visit.

So there's been a significant shift in the COVID-19-positive population at the facilities, which Mr. Jordan will be getting into in detail.

In terms of methodology with respect to this stage of our assessment, we obtained data of course from the site visits, observations and interviews; also, a review of documents that the Defendants produced in response to our request and analysis of various data sets that the Defendants also produced.

We've conducted unannounced and unescorted site visits on two dates at the jail and the CTF. We conducted observations in many of the housing units at both facilities, including cells and day rooms. We visited general population, maximum-and medium-security housing units; we visited mental health units, special management units, both isolation units, one in each facility, that were operating. And when I say isolation unit at the CTF, I mean the infirmary, which has the inmates in isolation status now.

We visited quarantine units; we visited non-quarantine units and the medical units at both facilities and the visitor entry screening areas; and we also were on the administrative side briefly at both facilities.

We conducted structured and informal interviews in person and by telephone, including with the deputy director of the DOC, the DOC deputy director for case management services.

And we conducted in-depth, structured interviews with the medical director for the contractor who provides health services at both facilities -- that's Unity Healthcare -- the nursing director for Unity Healthcare, which has the responsibility for both facilities; the warden, who has responsibility for both facilities; the deputy warden at the correctional treatment facility; and again, with dozens and correctional officers and some of their supervisors assigned to posts throughout both facilities.

And again, we spoke in smaller groups this time, smaller groups of -- the smaller groups of inmates and individually with inmates. By our estimate, over 100 inmates were interviewed during this phase who are either on isolation, quarantine status or in the general population of both facilities.

We did conduct data analysis. The Defendants continue to provide us with access to the electronic health records; and we have conducted analysis of those records, which Mr. Jordan will be reviewing with the Court and the parties in a moment, in addition to the electronic health records.

We've also analyzed data sets related to COVID-19 testing; housing unit designations; admissions and housing assignments; sick-call requests; the hiring of the sanitarian; efforts to secure professional cleaning services, records related to that; directives and information related to implementation of the TRO as well that were provided to DOC and/or contract staff by DOC management.

And the Defendants have produced a significant amount of the data we've requested. They also produced certain data we did not request, such as video excerpts of activity on certain CTF housing units, which we have reviewed. And we have continued to receive documents in response to our request on an ongoing basis from the Defendants. Most recently, this past Saturday afternoon was the most recent installment.

And we'd like to underscore that the Defendants have been extremely cooperative and responsive, again, throughout this stage of the process.

While we expect and will file our written report by May 28th, we would like an opportunity to supplement the information we provide today with respect to the first five questions in light of more recent data we've received from the Defendants as it appears appropriate.

THE COURT: Okay. And can I just ask, the supplement that you were talking about, would you want another oral one or are you going to be supplementing it in written format?

MS. LOPES: In writing. In writing. We can do that in the report.

THE COURT: Okay. That was the question. I'm sorry. Go ahead.

MS. LOPES: Thank you.

And so with all of that in mind, I can turn this over to Mr. Jordan, who at least preliminarily will address what the data shows with respect to testing, and then address the first two questions in the April 28th order.

THE COURT: Mr. Jordan?

MR. JORDAN: Thank you, your Honor.

As Ms. Lopes mentioned, since our last report to the Court three weeks ago, the impact of COVID-19 at the jail and CTF has changed significantly.

The first positive case of COVID-19 in the DOC facility was confirmed at the CTF on March 25th. The number of cases at the CTF steadily increased until April 5th, when it peaked, and then it began to decline.

April 16th was really the tail end of that decrease, when two inmates tested positive.

Then there was not another positive case at the CTF for approximately two weeks, until May 1st, when an inmate who had been transferred from the jail tested positive at the CTF.

As of last Friday, there were no isolation housing units at the CTF; and the four inmates who were COVID-19 positive were housed in the medical infirmary.

There was one quarantine housing unit at that time.

At the jail, the first positive case was confirmed on April 8th, two weeks after the first case at CTF. For the next week, the number of positive cases at the jail continued to rise, eventually peaking on April 15th, and then it began to decrease.

The most current data we have is through May 6th. Inmates continue to present the symptoms and continue to be tested, albeit in smaller numbers than in mid-April.

As of last Thursday at the jail, there was one isolation housing unit and all but two housing units were quarantined, which is a significant difference relative to the last time we reported to the Court.

Unless there are any questions, I am prepared to move to Question No. 1.

THE COURT: No questions from me.

Are there any questions from Plaintiffs’ counsel?

MR. MARCUS: Yes, your Honor. This is Steven Marcus.192 First, a preliminary question: Ms. Lopes had mentioned the written report. I believe she mentioned it coming in on May 28th. And we have a

MS. LOPES: May 20th.

MR. MARCUS: Okay. The 20th, then.

MS. LOPES: I misspoke, then. My apologies. The 20th.

MR. MARCUS: Okay. And I had a preliminary question for Mr. Jordan.

You mentioned one resident was transferred from the jail to CTF and then tested positive on May 1st. Do you know why that resident was transferred?

MR. JORDAN: Let me clarify: More than one resident were transferred. But the resident who did test positive was from the CDF. It was a group of inmates.

And my understanding is that it was a -- I would need to confirm this, but my understanding based on a lot of interviews is it was a cohort of inmates from the CDF who were in a specific program. And there is a program at the CTF called the Young Men Emerging program. And they were transferred from the CDF to that program at the CTF as a group. One of them tested positive.

MR. MARCUS: Thank you.

That was all, your Honor.

THE COURT: Defense counsel, anything you wish to ask?

MR. SAINDON: Nothing right now. Thank you, your Honor.

THE COURT: And from the US, anything from you?

MR. WALKER: No. Thank you, your Honor.

THE COURT: So let's proceed.

I must say that I'm happy to hear that the numbers have gone down. I have a couple of questions about that, but I'll wait. And also, I'm happy the Department of Corrections has continued to be cooperative with the amici experts. Obviously, that makes it much better for all of us in terms of being able to get a handle on this.

So let me let you proceed, then. Mr. Jordan, you're starting with Question No. 1. Is that correct?

MR. JORDAN: That's correct. Thank you.

Question No. 1: At the jail, most inmates are housed in quarantine units presently. In contrast, at CTF most inmates are housed on non-quarantine housing units.

Access to healthcare at the jail and the CTF must be understood in the context of the current operating environment. On non-quarantine housing units, just like on quarantine, and isolation housing units, DOC has adopted a policy of confining inmates in their cells for 23 hours per day and releasing them for one hour per day. There are significant deviations in implementation of the policy, which I will discuss in a minute.

Unlike quarantine housing units and isolation housing units, medical staff do not routinely monitor inmates on non-quarantine housing units; and those inmates on non-quarantine housing units do not have daily interactions with medical staff unless they are taking daily medications.

On non-quarantine housing units, the primary method by which inmates are able to access medical care is through the submission of a sick-call request form. Sick-call request forms are maintained by housing unit correctional staff, and inmates must request a form from an officer.

This lack of unimpeded access to forms is an initial barrier to accessing medical care. During our site visits, officers were unable to consistently produce the forms readily. In one case, an officer upon request gave us the wrong form.

In some cases, inmates said forms were not available and they had to write requests on paper that were not forms. And we observed this phenomenon in the sample that we reviewed that I will discuss below.

In the current operating environment, the barriers for inmates on non-quarantine housing units’ access to healthcare are much more significant than they would otherwise be.

The problem appears particularly acute at the jail, where because of higher housing unit population levels and significant correctional officer staffing shortages, inmates do not receive an hour out of their cells daily consistent with the adopted policy.

Inmates are allowed out of their cells in small groups around the clock. Based on the number of inmates allowed out of their cells, which is impacted by the number of staff working on the unit at any time, inmates and staff report that two to three days can elapse between an inmate's release for their hour of out-of-cell time. This greatly reduces the opportunities inmates have to submit sick-call request forms to medical staff.

At the CTF, housing unit populations are lower and inmates consistently reported that they receive their hour of out-of-cell time every day during either the a.m. or the p.m. shift.

Notwithstanding the identified barriers to accessing medical care, we reviewed copies of all sick-call request forms collected by medical staff between April 20th and April 30th, 2020, at both facilities. We analyzed them to determine whether the request forms were collected timely and whether inmates were seen timely. There were a total of 136 requests from the jail and CTF. 82 percent of them were from the jail; 18 percent of them were from the CTF. We were able to analyze from the jail 63 requests to access -- requests for care to assess the timeliness of the collection.

And just on a methodological note, we used the date the forms were signed and dated by the inmate as a proxy for the date that they were submitted to medical. Of the 63 forms, 75 percent were picked up either the day of or the day after they were submitted; 20 percent of them were collected two to three days after they were submitted; and 5 percent were collected four days after they were submitted.

At the CTF, we analyzed the 17 requests that were in the data. 65 percent were picked up the day of or the day after they were submitted; 24 percent were collected two to three days after they were submitted; and 12 percent were collected 14 and 15 days, respectively, after they were submitted.

From that data, we selected a sample of submitted sick-call requests from both facilities to determine whether inmates who submitted sick-call requests were seen by medical and on what timeline.

In the future, we hope -- in the written report, we hope to address whether the encounters addressed a complaint in the sick-call request form. But at this point, we limited our analysis strictly to timeliness.

We attempted to select only requests from inmates housed on non-quarantine housing units. However, based on our review, we do need to confirm the dates that all housing units were designated as quarantine before we can be confident that we limited it to non-quarantine housing units. Turning to the jail: We were able to analyze 24 requests for care for this analysis. In 16 of those 24, the inmate was seen within two days of submission. In six of the 24 cases, the inmate was seen three to five days after the submission of the form. One inmate was seen eight days after submission of the form; and in one case, there was no record of the inmate having been seen after submitting the form.

We included in our sample nine requests that included reported symptoms of coughing, shortness of breath, loss of taste, and fever-related symptoms. Of those nine, three were seen the day after the requests were submitted; four were seen two days after the request was submitted; and two additional were seen four and five days, respectively, after the request was submitted.

It's noteworthy that in one of those two cases, one that was seen four days after the request was submitted, it was referred -- the case was referred for a COVID-19 test; and in that case, the inmate did test positive.

At the CTF, we reviewed 11 of the total 25 sick-call requests that had been submitted during our period of review. Of those 11, six were seen two days after the submission; three were seen three to four days after submission; one was seen six days after submission; and one was seen 15 days after the submission.

In none of those cases were there any symptoms consistent with COVID, including cough or fever-related symptoms or shortness of breath.

It is noteworthy that on May 5th, Unity Healthcare issued a sick-call triage protocol. The protocol requires that every sick-call request form be classified either as Level 1, which requires emergency or urgent care, or Level 2, which requires a scheduled appointment. Included in the Level 1 criteria is shortness of breath, hyperventilation, respiratory distress and COVID symptoms, which are described as headaches, GI symptoms, shortness of breath, cough and fever.

In sum, there are barriers to inmates on non-quarantine housing units submitting sick-call requests. And when those requests are submitted, there are at times delays in both the collection of the sick-call requests and in patients being seen by medical staff.

That is the end of my presentation with Question 1. If there are questions, I could address those now or move to Question 2.

THE COURT: I have a question about the protocol that Unity Healthcare started: When did it go into effect? They put it out May 5th. Is it operational at this point or not?

MR. JORDAN: As far as -- it was issued. I do not know if it's operational.

MS. LOPES: They've reported that it is.

THE COURT: Okay. And that's Ms. Lopes?

MS. LOPES: Yes.

THE COURT: Okay. That's okay. I just want to make sure the comments are ascribed to the right people.

Plaintiffs’ counsel, do you have any questions about what has been presented so far?

MR. MARCUS: One question, Mr. Jordan. This is Steven Marcus.

Do you know of any efforts on DOC's part to have medical staff walk the non-quarantine housing units or make periodic visits to non-quarantine housing units?

MR. JORDAN: I am not aware of any efforts. I'm not aware of efforts.

I do know that their efforts on the quarantine and isolation housing units is very staff intensive, as I'll describe in a minute, with respect to what they are doing, especially on the isolation units. There are a lot of hours of medical staff work going to those units. And I don't know if that impacts the non-quarantine units or not, but I do know that they have extended a lot of resources monitoring on those other units.

MR. MARCUS: One brief followup, Mr. Jordan: Were you able to quantify the correctional officer -- the shortage of correctional officers? You mentioned that as one reason why there was impeded access to sick-calls forms. Do you have any quantitative data on that front?

MR. JORDAN: I do not have quantitative data on that front. We are still awaiting data on officers who are unavailable for duty and vacancies. So we weren't able to in the aggregate.

On the housing unit level, we routinely observed, and staff reported, managers reported, that they are currently staffing lower than the levels that they normally staff at because they do not have sufficient staff to staff them at their normal levels. So there are some housing units that would normally have five or even six correctional officers that have three or four correctional officers.

MR. MARCUS: Thank you, Mr. Jordan.

THE COURT: Defense counsel, DC, anything you want to ask?

MR. SAINDON: Thank you, your Honor. Andrew Saindon. A quick question for Mr. Jordan.

You said that at the jail, out of 24 requests, 16 were seen within a day or two of the request. But I didn't catch the next category. What was that number?

MR. JORDAN: Six were seen three to five days after the submission of the form; one was seen eight days after the submission; and in one case, there was no record of the inmate being seen.

MR. SAINDON: That's all I have. Thank you.

THE COURT: Mr. Walker, anything that you want to ask?

MR. WALKER: No, your Honor. Thank you.

THE COURT: One quick question, and you may get to it later: Who gets tested? I know that you indicated that the -- I guess in the jail, in the breakdown, that two were seen four to five days later who were tested, and it came back positive.

So is it once they're seen that there's a decision by the medical people as to whether to test?

MR. JORDAN: A medical provider -- and the medical providers, Unity's providers, are advanced practitioners. They include doctors, physician's assistants and nurse practitioners. They will make a decision about who to test. And it's based on their assessment of the patients. So it's not only symptoms, but also objective data by all signs and history, exposure. And so a provider has to make that decision.

THE COURT: Okay. Let me let you move on, then, to I guess Question 2.

MR. JORDAN: Question 2. Yes. Thank you, your Honor.

As of May 8th -- I'm going to begin my discussion with isolation units. And as of May 8th, there was one isolation unit at the jail. At the CTF, all inmates in isolation were housed in individual cells in the infirmary.

According to the management of the medical program, the expectation is that inmates in isolation are monitored by nursing staff twice per day and, additionally, by advanced care providers twice per day.

A position called the COVID provider of the day has been created; and this person is responsible for coordinating daily rounds by medical providers and serving as a communication liaison with DOC security staff.

We sampled the cohort of inmates who were on isolation status at the jail and CTF as of April 19th, 2020, and reviewed their electronic health records.

At the jail, there were 85 inmates on isolation on or after April 19th at some point. That doesn't necessarily meet concurrently, but at some point after April 19th. We sampled 25 of those inmates, who collectively spent a total of 257 days on isolation in our review period.

On 84 percent of the days in our review, the inmates were seen at least two times by a medical provider. On 92 percent of those days, the inmates were seen at least once by a provider.

In most cases, when an inmate was not seen by a provider on a given day, there is documentation in the health record of an unsuccessful attempt due to the inmate refusing, insufficient correctional staff to escort the provider, or an incident that precluded the provider from entering the unit.

On 84 percent of days, inmates were monitored by nursing staff twice per day. And there was only one day when an inmate did not have his or her vital signs taken at least one time.

At the CTF, 14 inmates were on isolation on or after April 19th, and we reviewed a sample of seven of those inmates, who collectively spent 71 days in isolation in our review period.

On 76 percent of those days, the inmates were seen twice daily by a provider. On 93 percent of days, they were seen at least once by a provider -- I'm sorry. They were seen once by a provider. At least once. I'm sorry. And there were no days on which the inmates did not have their vital signs taken at least once.

Now switching to quarantine units: On quarantine housing units, nursing staff conduct temperature checks twice per day. Providers do not routinely assess inmates on quarantine housing units.

To assess the monitoring practices on these quarantine units, we sampled inmates housed on quarantine units at the jail and at CTF on or after April 19th of 2020.

At the jail, we reviewed health records of 20 inmates, who collectively spent 195 days on quarantine status during our review period. On 62 percent of those days, the inmates had their temperatures taken twice. On 29 percent of those days, the inmates had their temperatures taken once. And in most cases, when an inmate's temperature was not taken a second time, it was because the inmate refused to have his or her temperature taken.

On 7 percent of the days, an inmate did not have his temperature taken. However, in all of those cases, the inmate refused both temperature checks each of those days.

At CTF, we reviewed the health record of eight inmates who spent 112 days on quarantine. On 96 percent of those days, the inmates had two temperature checks; and on 4 percent, they had one temperature check.

In sum, on both isolation and quarantine housing units, medical staff are conducting routine monitoring of inmates to identify those who need urgent care. For inmates in isolation, the level of routine monitoring is very high. It frequently includes multiple visits from both nursing staff and advanced medical providers on a daily basis.

And that concludes my presentation on Question 2. THE COURT: Okay. When you say "collectively," I take it you're talking about putting all the days together for the -- it's not each inmate, but it's actually all together for -- if you had 14, it's a total amount. Is that correct, just to make sure?

MR. JORDAN: That's correct. So we took a sample of inmates and calculated for each one how many days each individual spent, and then we totaled those. So we really calculated the number of inmate days on isolation.

THE COURT: Okay. Plaintiffs’ counsel, any questions?

MR. MARCUS: Yes. Steven Marcus here.

Mr. Jordan, when you said "seen by medical provider" for residents on isolation units, does that include the twice-daily temperature check or is that a separate event you're describing?

MR. JORDAN: That's limited to advanced care providers, so doctors, physician's assistants, nurse practitioners.

MR. MARCUS: Okay. That's my only question.

THE COURT: So nursing would be doing the two times per day and then you'd have these advanced care people, which are separate. So they're seen four times a day?

MR. JORDAN: That's correct. That is the goal. They do not always achieve it, but that is what -- the practice they're trying to implement.

THE COURT: DC, any questions?

MR. SAINDON: Not right now. Thank you, your Honor.

THE COURT: All right. United States, any questions?

MR. WALKER: No, your Honor. Thank you.

THE COURT: Then in terms of No. 3, is that you, Mr. Jordan, or Ms. Lopes?

MS. LOPES: It's me, your Honor.

MR. JORDAN: That is Ms. Lopes.

THE COURT: Okay.

MS. LOPES: Question 3 -- I'll just read it for the record: Is the DOC providing consistent and reliable access to legal calls, personal telephone calls, running water, daily showers and clean clothing and clean linens to all inmates on isolation status?

We limited our review to the isolation units that have been operating recently. So that's one unit at the jail and the infirmary at the CTF.

I'll take each category separately.

First, with respect to personal calls at the CTF, inmates and staff reported that inmates can make personal calls daily when they are in isolation status in the infirmary at CTF. We observed that happening. A telephone is actually placed on a rolling cart and it is moved from cell to cell down the infirmary corridor so that inmates who are housed in the infirmary can access the phone. We did not receive any complaints from the inmates who are on isolation in the infirmary about their daily access to the phone.

And the situation at the jail is somewhat different. So in the isolation unit that was operating at the jail, when we were there last week, again, rolling carts were used on some of the tiers and the same process of moving the rolling cart with the telephone from cell to cell was occurring.

But the rolling carts were not available to inmates on one segment of the housing unit, on the Lower 1 tier. And those inmates did not have access to the telephone at their cell door. They were reportedly accommodated by being provided access to a telephone in an office area on the housing unit. The inmates reported that they do not always have access to that office area. It is not a daily occurrence for them. And there is some difficulty, apparently, getting this rolling cart -- operating it on this lower tier, which contributed to the problem. So that was one limitation.

It certainly was a step n the right direction compared to what the situation was when we were there in April when, you know, there was an inability, complete inability, for inmates on isolation to make any personal phone calls. But there was that limitation, and it was evident in that part of the housing unit at the jail.

With respect to legal calls at both facilities, the Defendants recently implemented a system -- and I don't know how much, your Honor, you know about this system and whether you want me to just explain how it works for these 30-minute unmonitored legal calls.

THE COURT: Yes. I would go ahead. I'm familiar with it, but why don't we put it on the record for everybody else.

MS. LOPES: Okay. A system was very recently established where Defendants worked with their service providers -- and there are different service providers at both facilities -- to create or establish access for legal calls through these 30-minute unmonitored legal calls. Information about how this operates is posted on the DOC website and signage is posted in the housing units. It was first posted, I am told, at the beginning of May. The signage -- the signage is intended to notify inmates and apparently staff about how the system works.

And essentially, attorneys are required to email the DOC case management kind of generic email address to register for the system.

Case managers now, who work to implement the system, are viewed as essential employees, pursuant to this emergency order or under this emergency order that's in effect in the District, so that a number of them have come back to work. They weren't working until recently; and in the last week or so, they have come back to work, many of them, and are working to implement this new system.

The attorney then notifies -- once the attorney registers through the case management office for participation in this system, the attorney then is required to notify their client by mail that they've registered for the system and also notify their client about how to contact them.

The clients or inmates explain that there are delays and there have been delays in receiving their regular mail. And so some of them still have had difficulty receiving their regular mail, which may or may not affect how this is working.

But legal calls are now happening with somewhat greater frequency on the isolation units. And what we observed on the isolation units is that the rolling -- the phones on the isolation units, both the isolation in the infirmary at the CTF and then the isolation units at the jail, is that the phone on the rolling cart is being used for that purpose. And we are told that those are unmonitored calls, and the inmates are afforded confidentiality because the calls take place in their cells and not in the day rooms and not in the offices of the case managers. So that is occurring.

We haven't had an opportunity to verify this data, but on Saturday we did receive data from the Defendants on three weeks of operations related to this system, the last three weeks of operations related to this system.

And, you know, I have a lot of questions about the data that we'll have to talk through with the Defendants. We just haven't had an opportunity to do that since we got it on Saturday.

But there are indicated in these data reasons for why calls were not completed. And as a general matter, in the three-week period, roughly 15 percent of the calls that were scheduled through this new system -- it was indicated that they were not completed due to staffing shortages, security issues, limitations of the availability of phones on housing units and disruption.

So clearly, there's been improvement on the isolation units in terms of access to legal calls. It appears that additional progress may be necessary.

Clearly, on non-isolation units, there is a note, I would think, that the Court and the parties should be aware of, and this is a situation that we stumbled upon, which was that legal calls that are scheduled through this system are being conducted in the offices of case managers with the case manager present. So I observed multiple -- two inmates, three inmates, conducting legal calls in the case manager's office with the case manager clearly within earshot when I was at the jail. So that -- and that appears to be the practice. So that's one thing that I wanted to raise.

With respect to running water at both facilities for inmates in isolation, there was no apparent issue and no complaints that we heard about with respect to the infirmary or with respect to the isolation unit at the jail.

With respect to showers at the CTF and the infirmary and access to showers in isolation at the jail, first at the CTF, inmates and staff reported that inmates were allowed out of their cells in the infirmary daily to shower. There were no complaints, and expectations appeared to be very clear that inmates had to be allowed out of their cells to shower if they were on isolation status. There was no blanket rule prohibiting showers that staff articulated at the jail.

And staff and inmates both affirmed that inmates are allowed out of their cells to shower when they are on isolation status, but that it does not occur on a daily basis. Some inmates reported multiple-day delays. They recognized that they had been allowed to shower several days earlier, but hadn't been allowed to shower within the past couple of days.

And staffing -- it appears from talking to staff and inmates that, again, what contributes to this is staffing limitations combined with incidents and disturbances that contribute to the inability of the Defendants to provide daily access to showers.

So, you know, there is significant tension and there are significant issues, particularly at the jail -- this is really an issue at the jail -- that contribute to creating a lot of challenges for the staff and the inmates.

And there are a lot of issues. And that delays the ability of the limited staff who are available to provide consistent daily out-of-cell time. It's an issue. It's moving in the right direction in terms of -- that it's more frequent, but it's still not consistently being afforded on a daily basis.

With respect to clean clothing and clean linens in isolation, staff and inmates reported clothing and linen exchanges had occurred that week and that there had been very recent increased frequency. It's too premature to make any judgments about consistency, but clearly there is a recent effort to address it that was reported by both staff and inmates. And while we were there, we observed linen exchanges at both facilities occurring.

THE COURT: I have a question. When you say "incidents or disturbances," can you give me an idea of what we're talking about?

MS. LOPES: Yeah. There are fights. You know, there are inmates that are angry. You know, there are objects thrown; there's food thrown; there's bags of substances thrown around. I mean, it's a tense environment, and there are disturbances.

Because they're not getting a lot of out-of-cell time, and feel that they're punished, inmates -- some, you know, are refusing to go back in their cell. And there are -- you know, there are issues between the inmates and the staff around going back into cells that escalate and, you know, issues related to getting out to use the phone.

The facility is on -- in the non-isolation housing units, it is clear that the Defendants are trying to provide recreation to everyone; and they're doing that by allowing recreation to occur on a 24-hour basis.

So inmates -- they're told, and staff have confirmed, and even our cursory review of the logbooks in the housing units also confirm this, that inmates are being afforded the opportunity to leave their cells to take a shower or call home in some instances at 1:00, 2:00, and 3:00 a.m. because they weren't able to provide that opportunity during, you know, the day or the evening. So instead, you know, the staff will provide that opportunity at 1:00, 2:00, or 3:00 a.m. And that leads to problems as well.

So, you know, it's a tense environment. And, you know, the inmates -- many inmates feel as though they're being unduly punished because they are, you know, locked down for a significant part of the day. They are, you know, generally idle, and it's a very difficult and stressful situation for them. It's also a very difficult and stressful situation for the staff. They're understaffed. And, you know, there's significant overtime. Staff are tired. And it's a very stressful mix of factors, your Honor.

THE COURT: What I was curious about, you labeled these as disturbances. I take it the records themselves indicate some of the descriptions of what you've indicated were the problems. Is that correct?

MS. LOPES: Yes. Yes. Yes, your Honor.

THE COURT: Okay.

MS. LOPES: Yes.

THE COURT: So, Plaintiffs’ counsel, any questions?

MR. MARCUS: Yes. This is Steven Marcus here.

Ms. Lopes, when you observed the case managers in their office during the scheduled legal calls, were case managers wearing PPE as far as you could observe?

MS. LOPES: This all happens -- yes. Yes. Wearing a mask. And I have to look at my notes about the gloves, whether they were wearing gloves. Not wearing a gown, but wearing a mask. Definitely they were wearing a mask. And I'd have to look at my notes.

MR. MARCUS: Okay.

MS. LOPES: It'll take me a while to access that.

MR. MARCUS: Do you have a sense of how many residents on the isolation unit or roughly how many residents on isolation units at the jail don't get to shower every day?

MS. LOPES: No. It's frequent enough that both staff and inmates have reported it to us. But no.

MR. MARCUS: And as far as the residents who receive their hour out of cell at 1:00, 2:00, or 3:00 in the morning, are you aware of how frequent that is?

MS. LOPES: It's common. It's recognized as a -- you know, as something that they have to do in order to afford everyone the opportunity to be out of their cell.

MR. MARCUS: Okay. And the rolling phone cart: Did you observe the cart being wiped down between uses or does a staff member push it from cell to cell?

MS. LOPES: A staff member or detail inmates. And I didn't observe the -- with sanitation, but I know that Mr. Jordan did.

MR. JORDAN: I did not observe the sanitation.

I will say that I did have conversations with inmates when I was interviewing them in which they said it was the detail's job, the inmate detail's job, to move the cart from one cell to the next. And they had stated that the detail had been locked down for a prolonged period on the day that we were there, and that therefore other inmates’ access to the phone was limited because of that, because the detail inmate whose job it was to move the phone was locked down. And that created a lot of frustration as well on the unit.

THE COURT: Excuse me. Can I just ask, was there sanitation of the phone between inmates, leaving aside the cart?

MS. LOPES: We just didn't observe it, your Honor. But we have observed it in housing units without the cart. We certainly have observed it, you know, where they had the phones mounted on the walls in the day rooms. We have observed the cleaning of the phones. And the rolling carts, we just didn't observe it and we didn't inquire about it. We certainly can follow up on that.

THE COURT: I would appreciate it.

And what about if they're in the case manager's office? Is there any cleaning of the phone between calls?

MS. LOPES: We'll have to check.

THE COURT: Okay. Sorry, Mr. Marcus. Go ahead.

MR. MARCUS: And I just have one last question.

Are the detail inmates that work on the isolation units -- are those people who are also housed on those units and have tested positive?

MS. LOPES: Yes.

MR. MARCUS: Okay.

MS. LOPES: Yes.

THE COURT: DC, anything? Any questions?

MR. SAINDON: Nothing at this time. Thank you, your Honor.

THE COURT: How about

MR. GLOVER: Your Honor? Your Honor? This is Eric Glover. I just wanted to clarify one issue that Ms. Lopes brought up.

The agency did provide her with data with regard to emergency calls conducted at the facility about that recent issue over the weekend that she referenced. Those emergency calls were slightly different than the standard 30-minute legal calls that the residents have. However, when Ms. Lopes follows up with staff, I'll explain it clearly. So I just wanted to be very clear.

THE COURT: Okay. And, United States, any questions?

MR. WALKER: No questions from the United States. Thank you, your Honor.

THE COURT: And I guess we're moving to Question 4.

MS. LOPES: That question is: Do DOC residents have access to cleaning materials and cleaning equipment to clean their cells?

Again, they have access at both facilities to cleaning materials and cleaning equipment. Availability is not uniform from housing unit to housing unit. So some housing units have more cleaning supplies and cleaning materials available than others.

The Defendants recently began to issue paper towels which are sprayed with a peroxide solution to inmates at the jail. It's highly regulated at the jail in the sense that staff are involved, the paper towels are sprayed, and a limited number are provided.

Inmates report that because it's so -- you know, it's four or five paper towels that have been sprayed with this peroxide solution that they're given, these are not highly absorbent paper towels; and inmates report that it's difficult to get their cells clean with what is provided so that they continue to rely upon the ripped towels and the ripped T-shirts to supplement in order to clean their cells.

At the CTF, access to the paper towels and the peroxide solution is not as highly regulated; and inmates appear to be able to use the solution and the paper towels more independently and are better able to clean.

But appropriate sanitation is, you know, a continuing issue at both facilities, and clearly especially deficient at the jail.

And then I know for the next set of questions, whether in the final report -- and I can say that the Defendants -- from all of the documentation I've reviewed and from the interviews I've conducted, the Defendants are working to secure the contract with the professional cleaning service for the secure side of the facility. That would not include the cells, but it will include the common areas and the day rooms in the housing units. And I believe it's anticipated that it will start this week, which is something we can confirm.

THE COURT: Okay. No. 5.

MS. LOPES: Is the DOC enforcing social distancing?

There is -- there are increased -- an increased volume of health educational materials on social distancing that are posted throughout both facilities. Both management and staff, supervisory staff and line staff, report that staff are being disciplined for the failure to enforce social distancing. There is some evidence of this on site. The increased -- the increased evidence of social distancing. But it certainly is not prevalent, certainly not during our site visits.

And I would say even in the video excerpts of activity on the housing units that the Defendants provided, there were -- and that was just limited to the CTF -- there were examples of failure to enforce social distancing, which is -- you know, there are fewer inmates who are allowed out of their cells at any one time relative to what the situation was when we were there in April. So as a result, at least some housing units are less chaotic.

Again, this has created -- by allowing fewer inmates out at a time, you know, this has given rise to this other problem of the 24-hour recreation schedule because of the difficulty letting -- when you let fewer numbers of inmates out at one time, they can't all during the day get out of their cells to shower and use the phone, et cetera. So the Defendants have expanded to this 24-hour recreation cycle.

But there's evidence of some progress and attempts to enforce social distancing, certainly the effort of an attempt to enforce social distancing.

But I would say there still isn't a prevalence of social distancing. And staffing limitations to some degree, you know, undercut the ability of staff to enforce it when there are an insufficient number of staff on the housing units. So that's where that stands, your Honor.

THE COURT: Okay. On this particular issue, Plaintiffs’ counsel, any questions?

MR. MARCUS: I just had one question, Ms. Lopes, about paper towels and rags.

Did you see on this round where residents still were using makeshift rags -- was that less prevalent than your first visit or about the same?

MS. LOPES: About the same. About the same.

MR. MARCUS: Okay. And that was my only question. I didn't have any questions aside from that.

THE COURT: DC?

MR. SAINDON: Yes, your Honor.

I don't recall, Ms. Lopes. Did you say when the video excerpts -- from what days those were from?

MS. LOPES: I can tell you. Here we go. 4-27, 11:00 a.m. to 11:15 at the CTF. 4-27, 10:00 to 11:00 a.m. at the CTF. 4-27, 8:00 to 9:00 a.m. at the CTF. And 4-27, 7:00 to 8:00 a.m. at the CTF.

MR. SAINDON: Okay. Thank you.

THE COURT: Anybody else from DC? Mr. Glover or anybody?

MR. GLOVER: I don't have anything, Judge. Thank you.

THE COURT: US, any questions?

MR. WALKER: No. Thank you, your Honor.

And my thanks to Ms. Lopes and Mr. Jordan as well.

THE COURT: Yes. Definitely.

I have a couple of overall questions that I'd like to ask. I'm going to direct them to DC first; and then if Ms. Lopes or Mr. Jordan have something to add additionally, that would be helpful. And they're not exactly connected to these four points.

From DC's perspective, in terms of the legal calls, we're still having a problem, obviously, here. The rolling carts obviously help to some degree. But I don't see how you're doing -- if they're in the presence of their case managers, that's not an unmonitored call. I mean, what they're discussing is what they want to do with their cases, pleas, sentences, other kind of things. Obviously, that's -- nobody should be there.

Are you going to do anything else? If you don't have the complete answer, that's fine. I'm just raising the issue.

MR. GLOVER: Your Honor, this is Eric Glover.

THE COURT: Go ahead.

MR. GLOVER: This is Eric Glover. I don't know if someone was speaking before me.

THE COURT: It doesn't sound like it. Go ahead, Mr. Glover.

MR. GLOVER: Yes, your Honor.

We are looking at adding additional equipment to the facilities to assist with -- or to assist with providing legal calls to the residents.

However, your Honor, it is still a correctional facility. And notwithstanding -- and understanding the Court's concern about case managers or staff being present, there has to be eyes on the residents at the facility, just for the safety and security of staff and residents.

But we are looking at other alternatives or expanding our equipment to allow for legal calls, that being additional cell phones.

And we have recently implemented -- we've recently worked with the Public Defender Service and the Federal Public Defender Services to implement an email program where residents in isolation who have been provided with tablets have the ability to email their attorneys to further be able to -- allow them to communicate with them.

But we can't have at a correctional facility a situation where there are absolutely no eyes on a resident. There are security issues attached to that.

THE COURT: I understand that. But I still think that, you know, there still needs to be some way of -- I'm not sure -- I haven't been to the jail in eons. But I mean, in terms of a way they're being able to distance or some other way of doing it.

I understand they can't just be left in an office. But I do think that if people are close enough to listen to what they're talking about, it's obviously going to be -- it's going to hinder them from being frank in their discussions or complaints or anything else they may have with their lawyers.

I understand you were looking at tablets, which would be of some help in terms of doing it or some other way of doing cell phones where they could go to a place where you can't overhear them, but you could still see them.

MR. GLOVER: Yes, your Honor.

THE COURT: This is still a problem. This is still -- from my perspective, this is still a problem.

I know that at least the scheduling has gotten slightly better based on both FPD and PDS and the Department of Corrections working around setting specific times, so it's not sort of guesswork anymore about when they get to have the calls, et cetera. So there's been some improvement at least in that. And obviously, having 30 minutes instead of ten makes a big difference.

But I am concerned about the fact that if somebody is around that can hear what they say, they're obviously going to temper what's said. So we need to come up with something else. I'm not sure what, but I still thought that the idea of cell phones, where they could move to a place where they could be seen but nobody could hear what they're actually saying, to my mind makes sense.

But I'll leave it to you to come up with a way of doing it. But if they're overheard, if there is such a situation that you can hear the conversation, that's not really an unmonitored call. So I'm just throwing that out. I'm just indicating to you, having listened to this, there are some are concerns here.

MR. GLOVER: Yes, your Honor. I will address that with the executive staff, this issue.

THE COURT: Okay. I mean, I'm not ordering something at this point. I'm just asking you to come up with a better way.

The rolling carts seem to work to some degree as long as it's consistent. But the issue of there being -- where you can overhear the conversation is clearly not from my perspective an unmonitored call, even if they're not trying to hear it.

And I'm not indicating that the case managers are doing something wrong. But if you can't have a private conversation, then people are just simply not going to be honest and frank in their discussions. But I'm just throwing out my concerns about it.

The other issue is, I'm curious to know in terms of the lower population, is it due to releases by individual judges? BOP doesn't seem to have had much success in moving their group out. Is there a particular category of people that has lowered it? Or what's happening? Or are fewer people coming in or what? Do you know? If you don't, that's fine. MR. GLOVER: Your Honor, just briefly, it's a combination of both. I know that MPD and the US Attorney's Office have started making a more diligent effort to have more offenses be classified with citations. And there has been -- as the Court is well aware, there were multiple bond hearings occurring at the Superior Court where residents have been released as well.

THE COURT: Right. Okay.

What about the Parole Commission? Are they doing anything?

MR. GLOVER: Your Honor, I'd have to -- I'd have to follow up on that.

THE COURT: Mr. Walker, do you know? If you don't know, that's fine. These are questions you weren't expected to know the answer to. But I'm just curious.

MR. WALKER: I don't know that today, your Honor.

THE COURT: Okay. It would be helpful at some point to find out what's happening with the Parole Commission as to whether they have some system in place for going through these, at least the ones where they're being held for technical reasons as opposed to new charges. And I know there have been some issues with the Bureau of Prisons in terms of the receiving group having some concerns, which leads me to my next question.

The last time I asked this question of DC about doing tests prior to people being released or being transferred, the answer I got was that the CDC did not require it.

Is that still the same answer or are people being tested before they're released or transferred?

MR. GLOVER: Your Honor, presently, residents are not being released. However, we are reassessing our policy. The director and I had a meeting with Chief Judge Howell this morning, and we'll be getting back to her with any changes regarding our policy regarding testing residents -- testing or screening of residents prior to their release from the facilities.

THE COURT: I think quarantining them at the other end is not perfection. I mean, it might be better than nothing. But perhaps -- I'm just throwing this out, not ordering it or anything else. We're not there yet.

But certainly in terms of releasing or frankly sending people -- with the Bureau of Prisons with people that are ready to be moved, that there were some assurances that they were getting people that were not sick that would probably move these people out a little faster.

But I know you've had discussions with the Chief Judge about this, because there are some concerns, obviously, in terms of our trying to from the federal court and I'm sure from Superior Court in their own way, too, in terms of trying to move people.

The other question that I had for DC is, what's happening with the staffing issues? And I realize that is not a quickie, but as I recall there was some efforts to getting additional staff through some mechanism which -- unfortunately, I don't have it in front of me.

Does anybody want to answer that from DC?

MR. SAINDON: Yes, your Honor.

MR. GLOVER: Go ahead.

MR. SAINDON: Go ahead, Eric.

MR. GLOVER: Mr. Saindon, please proceed.

MR. SAINDON: I want I was going to say, you probably have more recent detail.

We had asked for assistance from Public Health, and they provided some volunteer staffers to assist in the -- doing the screening. And maybe Mr. Glover has details there. But, again, it remains difficult to hire full-time correctional officers because of the time required to train them.

THE COURT: Right.

MR. GLOVER: In addition to that, your Honor, Mr. Saindon is correct. We have reached out to the Medical Reserve Corps, and we received staff from the Corps who have been assisting with screening of residents.

We've also, as regards our staff who took leave pursuant to the COVID pandemic -- we began sending out return-of-work notices to staff for those staff who are going to be able to return to work.

We are doing rolling hires. We're currently reviewing applications for new staff to assist with the facility.

And there's been a request for armed security to assist with taking over of hospital details. So we've made several different types of efforts to add more staff to the facility and develop policies or enforce policies, getting staff that was previously out on leave to return to the facility.

THE COURT: I was just interested, since obviously some of these problems that Ms. Lopes and Mr. Jordan have identified seem to be staffing issues, which I understand is harder to fill in the hole. But you had indicated, I thought, after the last report that the efforts were being made. And I guess it's the Public Health Service I was thinking of there in terms of getting some additional assistance.

Those are the only questions that I had that were additional.

Mr. Marcus, are there any questions from you or anything else you wish to bring up?

MR. MARCUS: Just a clarifying question for Mr. Glover.

The armed security you mentioned: Can you just say a little bit more about that? Are those private contractors? Where in the facility would those people be working?

MR. GLOVER: I have yet to follow up with our deputy director with the administration to get more details about that. So I don't have that exact information right now.

MR. MARCUS: Okay.

MR. GLOVER: But it's my understanding they will not be at the facility. They would just be part of doing -- they will not be operating in the facility. Just hospital details.

MR. MARCUS: Okay. And I'm not sure, Mr. Glover, if you or Mr. Saindon would know the answer to this. But do you know if there's capability in the District to test everyone at the jail, the 1300 or so people who remain? Has that conversation happened or have any inquiries been made?

MR. GLOVER: I am not familiar with any facility that has the capability to test all the residents at the DOC facilities. However, we are looking at every opportunity to test as many residents as possible.

MR. MARCUS: Okay.

THE COURT: And my understanding is at least there was some discussion of testing people that were being released not only into the community, but potentially if they were being transferred someplace else, which might bring the population -- well, testing into the community, so we didn't send somebody out that turns out to be sick going home, who doesn't show -- who is asymptomatic and then goes home.

But also, it might make it easier to move some people out that should be moved out of the facility if the receiving facilities were satisfied that they weren't getting people that potentially were sick. But I'll leave you to have that discussion with the Chief Judge at this point.

Anything else from DC? Anything else you wish to bring up or raise?

MR. SAINDON: This is Andrew Saindon.

No, your Honor. Thank you.

THE COURT: Mr. Walker, is there anything you want to say?

MR. WALKER: No, your Honor. Thank you.

THE COURT: Thank you very much, Ms. Lopes and Mr. Jordan, in terms of going in and going over and checking back with what we had talked about.

And we certainly -- and I appreciate the Department of Corrections being cooperative. The system won't work unless they get the information. And so I appreciate that.

And I certainly appreciate the help from Ms. Lopes and Mr. Jordan. This has made this case certainly a better case in terms of getting information that everybody can accept that's neutral and that we can work with. So I thank you very much for your time and energy and how careful you are in terms of going through all of this. So I await with interest the written findings.

Do you have any questions of the director or anybody else, Ms. Lopes or Mr. Jordan?

MS. LOPES: No, your Honor.

We will reach back out to counsel for both sides after this and determine whether there are any other areas that they think would be helpful for us to clarify in the final report based on what we've said today. And we anticipate that the final report will supplement today's presentation as well as address the remaining questions.

THE COURT: All right. Thank you very much.

MS. LOPES: Thank you.

THE COURT: Everybody is excused. As I said before, take care of yourselves. Thank you.

MS. LOPES: Thank you, your Honor.

MR. MARCUS: Thank you, Judge.

MR. SAINDON: Thank you, your Honor.

MR. GLOVER: Thank you, your Honor.

MR. WALKER: Thank you, your Honor.

MR. JORDAN: 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.

Please Note: This hearing occurred during the COVID-19 pandemic and is therefore subject to the technological limitations of reporting remotely.

Dated this 11th day of May, 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

Attachment

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

EDWARD BANKS, et al. , Plaintiffs,

v.

QUINCY BOOTH, in his official capacity as Director of the District of Columbia Department of Corrections, et al. , Defendants.

No. 1:20-cv-849 (CKK)

REPORT SUBMITTED BY AMICUS CURIAE PURSUANT TO APRIL 28, 2020 CONSENT ORDER

Pursuant to the April 28, 2020 Consent Order issued in the above-captioned matter, Amici , Grace M. Lopes and Mark Jordan, submit the following report for the Court's consideration.

I. INTRODUCTION

On April 9, 2020 amici were appointed to provide specific information to the Court regarding medical services and environmental health and hygiene at two detention facilities operated by the District of Columbia Department of Corrections ("DOC"), the Central Detention Facility ("CDF") and the Correctional Treatment Facility ("CTF"). Pursuant to that order amici provided information to the Court during an April 15, 2020 teleconference and in a written report on April 18, 2020. On April 19, 2020, the Court issued an order granting plaintiffs’ request for a Temporary Restraining Order ("TRO") and requiring the defendants to take certain specified actions. Thereafter, on April 28, 2020 amici were appointed to provide information to the Court regarding certain matters related to the TRO, which concern the COVID-19 pandemic at the CDF and the CTF. Following issuance of the April 28, 2020 order and using the same methodology applied in their earlier review, amici collected and analyzed data obtained from site visits at both facilities; conducted structured interviews with DOC managers, line staff, inmates, and contractors; reviewed electronic health records; and analyzed multiple electronic datasets extracted from information management systems maintained by the DOC or its contract services providers.

The April 28, 2020 order required amici to provide information to the Court by answering five questions during an oral report to the Court on May 11, 2020, and four additional questions in a written report required to be submitted by May 20, 2020. Accordingly, during a teleconference with the Court and the parties on May 11, 2020, amici presented their findings concerning the first five questions reflected in the order. This report supplements but does not restate that presentation and summarizes amici's responses to the remaining four questions reflected in the order. In addition, this report explains the methodology amici relied upon to conduct their assessment, addresses relevant background data regarding the facilities subject to the assessment, and presents updated information concerning the prevalence of COVID-19 cases at both the CDF and CTF.

The defendants have continued to cooperate fully with amici's requests for information. DOC and contract staff at every level, as well as representatives from the Office of the Attorney General, have continued to make themselves available on short notice, on every day of the week, and well after traditional office hours. Data reports and other records have continued to be produced on abbreviated timelines. Amici appreciate the efforts the defendants have continued to make to facilitate their review.

II. METHODOLOGY

Following the issuance of the April 28, 2020 order, amici conducted unannounced and unescorted site visits on multiple shifts on May 7 and 8, 2020, at both the CDF and CTF, respectively. In addition, amici conducted an unannounced and unescorted site visit at the CDF during the PM shift on May 14, 2020. During the course of these site visits, amici visited general population, maximum and medium security housing units, including housing units on isolation, quarantine and non-quarantine status, special management and mental health units at both facilities, and the CTF infirmary and urgent care clinic. Five housing units at the CDF (N-1, NW-1, SW-3, SE-2 and N-2) and six housing units (C3A, C3B, SMUB, D2A, E4B, E4A) in addition to the infirmary at the CTF were visited. The isolation unit at the CDF (N-2) was visited on two separate dates. Observations in housing units included cells, dayrooms, restrooms, supply storage areas, and shower facilities. At both facilities, medical units, administrative offices, and visitor entry areas were visited.

Structured in-person and/or telephone interviews were conducted with members of the DOC executive management team, including the DOC Deputy Directors of Administration, Operations, Programs and Case Management, and Professional Development and College and Career Readiness; the DOC Medical Director; the Medical Director, Director of Nursing, and other members of the Correctional Health Program at Unity Health Care, Inc. ("Unity");¹ the CDF and CTF Warden and the Deputy Warden assigned to the CTF; and dozens of correctional officers and supervisory correctional staff assigned to various posts throughout the facilities. In-person interviews were also conducted, in groups and individually, with over 100 inmates on isolation, quarantine and non-quarantine status as well as in restricted housing units and in the general population at both facilities.

In addition to the information collected during site visits and from interviews, amici requested and continued to receive access from the DOC to the electronic health records of inmates confined at the CDF and CTF.² Review and analysis of samples from these records has been conducted and the results were presented during the May 11, 2020 teleconference. The following data for both facilities were also obtained from the DOC and analyzed:

• Daily census data, including inmate housing assignments, for the period April 1, 2020 to May 14, 2020;

• Data related to sick call requests for the period April 19, 2020 to April 30, 2020;

• Data related to urgent care encounters for the period April 19, 2020 to April 30, 2020;

• Data related to all COVID-19 tests conducted on inmates housed at both facilities through May 14, 2020; and

• Open work orders for maintenance activities as of May 15, 2020.

Data related to DOC correctional staffing levels was also reviewed and is addressed below.

III. BACKGROUND

As described in amici's April 18, 2020 report, the CDF is a multi-story, secure detention center. At the time of the May 2020 site visits, population levels hovered at approximately 970, a decrease relative to population levels at the time of the April site visits. The facility has 18 housing units, which are both single and double celled. Analysis of DOC housing data shows that as of May 13, 2020, 59 percent of the inmates housed at the CDF were housed in single cells and 41 percent were housed in cells with another inmate, which represents an increase in the proportion of inmates housed in single cells compared with the previous month.³ As of May 18, 2020, DOC representatives reported that 41 cells at the CDF could not be occupied because of maintenance issues. All cells at the CDF are "wet" cells, i.e., they have toilets and sinks. Cellblocks are divided into two sides, and for most of the facility's housing units, each side contains two tiers with 20 cells per tier.⁴ Each cellblock tier of 20 cells has two showers, which are shared by inmates housed in the unit and located in a common area. The CDF Culinary Unit, which is operated by a contractor and up until April 11, 2020 employed inmate workers, currently supports the food service program for both the CDF and the CTF.⁵

5 The CTF has a separate Culinary Unit that is responsible for that facility's food service program. At the time of the April and May site visits, the Culinary Unit at the CTF was closed due to a COVID-19 issue and it remains closed. The closure of the CTF Culinary Unit has continued to place an evident strain on the food service program at the CDF.

At the time of the May 2020 site visits, 15 housing units were open and three were closed. In contrast to the April 2020 site visits when there were only two quarantine units and less than a handful of inmates on isolation status, of the 15 open housing units at the CDF, 10 were quarantine units and one was an isolation unit with 26 inmates who had tested positive for COVID-19.⁶

6 The number of quarantine and isolation units is, of course, variable, as is the number of inmates assigned to those housing units.

The CTF had a population of approximately 365 inmates at the time of the May site visits, a decrease relative to the approximately 400 inmates confined there during the April site visits. The facility has 27 housing units. In addition to the 26-room 40-bed infirmary, a limited medical mobility unit can house up to 37 inmates. Eighteen housing units have a capacity of 50 beds, four have a capacity of 96 beds, two have a capacity of 23 beds,⁷ and one has a capacity of 65 beds. According to DOC housing assignment records, as of May 13, 2020, consistent with the levels reported in April, 95 percent of the inmates at the CTF were housed in single cells and five percent were housed with another inmate. As of May 18, 2020, DOC representatives reported that four cells at the CTF could not be occupied because of maintenance issues. With the exception of eight housing units,⁸ all of the CTF's housing units have wet cells. At the time of amici's May site visits, 11 housing units were closed and there was one quarantine unit. There were no open isolation units.⁹ The four inmates who were confined at the facility on isolation status were housed in the infirmary. The infirmary and all of the quarantine units that were operating had wet cells. In contrast, during amici's April site visits, the CTF had eight quarantine housing units and three isolation housing units.¹⁰

7 Each of the two restrictive housing units can house up to 23 inmates.

8 Three of the eight housings units that do not have toilets and sinks were open during the site visits.

9 A closed housing unit was designated for inmates on isolation status, should the need arise.

10 See Amici's April 2020 Report at 5.

During the May 11, 2020 hearing, amici presented updated data regarding COVID-19 test administration results at the CDF and CTF through May 6, 2020. Subsequent to that hearing, amici obtained and analyzed data regarding COVID-19 testing data at both facilities through May 14, 2020. This analysis indicates that during the two-month period from March 14, 2020 to May 14, 2020, a total of 220 COVID-19 tests were administered to inmates at the CDF and 95 were administered to inmates at the CTF. Medical staff at the CDF ordered three additional tests; however, the inmates refused testing and were assumed to be positive for the virus. At the CDF, as of May 14, 2020, 121 inmates tested positive or were presumed to be COVID-19 positive and at the CTF 64 inmates tested positive.¹¹ The seven-day average peak for positive COVID-19 test results at the CTF was April 5 and April 6, 2020 (an average of five positive test results per day) whereas the peak for positive COVID-19 test results at the CDF was approximately two weeks later, on April 18, 2020 (an average of 5.86 positive test results).¹² At the CTF there have been three positive test results out of 12 administered in the approximately one-month period between April 16, 2020 and May 14, 2020. At the CDF, inmates continued to test positive during the first two weeks of May, albeit in lower numbers than during the mid- to late-April peak.

11 See Ex. 1, Chart, COVID-19 Tests Administered at the CTF and CDF, by Date of Administration and Test Result, March 14, 2020 – May 14, 2020. The results of one COVID-19 test was pending as of May 17, 2020.

12 Peaks were measured using seven-day averages of positive COVID-19 test results. See Ex. 2, Table, COVID-19 Test Data, by Facility, by Date, and Seven-Day Average of Positive Test Results, March 14, 2020 – May 14, 2020.

The COVID-19 pandemic has presented formidable challenges for the defendants and has had a significant impact on operations at both the CDF and the CTF. Many of these challenges are the result of decreases in correctional officer and supervisory correctional staffing levels on many shifts at both facilities, which appear in large part to be attributable to decreases in DOC workforce members who are available for duty.¹³ In order to assess available staffing levels, amici obtained a copy of the official DOC record that reflects every funded correctional officer and supervisory correctional position in the agency. According to this document, which is referred to as the "Schedule A," as of May 9, 2020, the DOC had a total of 994 correctional staff positions. Of the 994 positions, 844 were correctional officer positions, 93 were lead correctional officer positions, and 57 were supervisory correctional officer positions.¹⁴

13 Other factors related to the pandemic also have affected staffing levels at both facilities. For example, since approximately mid-March, correctional staff assigned to both facilities have been deployed to external posts in hospitals. This type of assignment is staff intensive, requiring two correctional officers to supervise each hospitalized inmate. At its peak, DOC managers reported that there were as many as 11 inmates in DOC custody at hospitals, which created a need to fill 22 external posts on each shift with correctional officers. This increase in demand for correctional officers placed additional strain on the already diminished workforce.

14 The Schedule A is maintained by the agency's independent chief financial officer, and reflects every funded position allocated to the agency.

Because the Schedule A does not include work availability status nor work assignment location, amici obtained that data from DOC executives. These data were not consistent with the data reflected in the Schedule A.¹⁵ For the purposes of analyzing staff availability for duty, amici relied upon the data provided by DOC executives. According to that data, 20 percent of the 925 correctional officers and supervisory correctional officers employed by the agency were unavailable for duty.¹⁶ At the CDF, 21 percent (118 of 568 assigned correctional staff) were unavailable, and at the CTF, 19 percent (52 of 279 assigned correctional staff) were unavailable.¹⁷ These calculations do not include budgeted, but unfilled correctional officer and correctional supervisory positions (i.e., vacant positions). According to the Schedule A, as of May 9, 2020, the DOC had 51 funded, vacant correctional positions. When these 51 vacant positions are added to the reported number of correctional staff who are not available for duty, the percentage of positions in the correctional workforce that were either unfilled or filled by staff unavailable for duty is 24 percent.

15 The Schedule A reflects a total of 943 filled correctional officer and supervisory correctional officer positions. Data provided by DOC executive staff reflected a total of 925 filled positions.

16 Reasons staff may be unavailable for duty include the following: workers’ compensation, military leave, family leave, extended sick leave, absent without leave, and quarantine status following close contact with an individual known to have COVID-19.

17 Ex. 3, Table, Correctional Officer and Supervisory Correctional Officer Staff Availability, by Assignment Location, as of May 12, 2020. The Table also reflects that 17 percent of correctional staff assigned to the Central Cell Block and 35 percent of correctional staff assigned to the Transportation Unit were unavailable for duty.

According to CDF and CTF management, numerous correctional staff have returned to work in the past week, which has made staffing shortages less acute. Particularly at the CTF, where the inmate population is low and numerous housing units are closed, it appears staffing shortages are not having as severe an impact as was evident in the recent past.

IV. FINDINGS

This section provides additional information related to two of the five questions in the April 28, 2020 Consent Order that were addressed during the May 11, 2020 teleconference. As contemplated by the order, the narrative provided does not restate amici's May 11, 2020 presentation to the Court. Amici's more comprehensive responses to the remaining four questions delineated in the order are also set forth below.

A. Supplement to May 11, 2020 Oral Report

As noted above, the April 28, 2020 Consent Order required amici to report orally on their answers to five specified questions during the May 11, 2020 teleconference. Supplemental information regarding questions one and three is summarized below.

Question One: How are residents on non-quarantine units able to access medical care, including reporting symptoms of COVID-19 to medical staff?

During the May 11, 2020 hearing, amici described significant barriers to access to health care that exist for inmates on non-quarantine housing units, including the absence of independent access to sick call request forms (i.e., inmates must request sick call request forms from correctional offices) and current policy that limits out-of-cell time to one hour daily. Amici reported that in practice at the CDF many inmates were not receiving one hour of out-of-cell time daily on a consistent basis and that at times several days elapsed before they were offered any out-of-cell time. Moreover, at the CDF, the combination of staffing limitations, population levels in housing units, and efforts to limit the number of inmates out of their cells at one time have resulted in out-of-cell time being conducted around the clock. This results in some inmates being offered out-of-cell time in the middle of the night. As explained in more detail below, these practices have limited the opportunities for inmates on non-quarantine units to access health care.

On May 8, 2020, the defendants provided amici with a document that describes the following six processes through which inmates can access medical care currently at both facilities:¹⁸ 1) sick call; 2) enhanced access in sick call clinic; 3) urgent care clinic; 4) chronic care clinic; 5) quarantine housing unit monitoring; and 6) medical emergencies. Most inmates on non-quarantine housing units who want to access medical care for non-emergent medical conditions at both the CDF and the CTF rely on the sick call process. As implemented by the DOC, this process requires inmates to request sick call forms¹⁹ from correctional officers and to submit those forms to health care staff through designated collection boxes on the housing units.²⁰

18 See Ex. 4, May 8, 2020 e-mail from Eric Glover, General Counsel, District of Columbia Department of Corrections, to Grace M. Lopes, with attached untitled document describing six methods by which inmates in all housing units can access medical care.

19 See, e.g., Ex. 5, District of Columbia Department of Corrections Central Detention and Central Treatment Facilities, Sick Call Request Form.

20 The collection boxes are locked and a key to the boxes is only issued to health care staff. According to Unity's health care managers, a nursing assistant or nurse collects the sick call forms from the boxes on a daily basis. The forms are reviewed and triaged for urgency by a nurse. Urgent requests are referred to advanced care providers in the urgent care clinic on an expedited basis and routine requests are expected to be scheduled for sick call on the calendar day following collection of the request form. A nursing sick call triage protocol, which addresses certain COVID-19 symptoms, was issued on May 5, 2020 and is included in the Appendix to this report. See Ex. 6, Unity Health Care, Inc., Sick Call Triage, May 5, 2020.

As noted above, because inmates do not have independent access to the sick call forms, they must request them from the correctional staff, complete them, and submit them during out-of-cell time. During the April and May site visits, amici found that sick call forms were not readily available at both facilities, in all housing units, on a consistent basis. Given the limitations on out-of-cell time, particularly at the CDF, lack of an independent means for requesting sick call, and inconsistencies in the availability of the sick call forms at both facilities, the sick call process does not provide reliable, timely access to health care for inmates on non-quarantine housing units.²¹

21 During the May 11, 2020 hearing, amici reported on the timeliness of the sick call process and noted the possibility of including in this report an analysis addressing whether sick call encounters were responsive to the issues inmates listed on sick call request forms. In light of time constraints, amici were unable to conduct a comprehensive qualitative analysis of an adequate sample of sick call requests relevant to this issue and thus this matter is not addressed herein.

In the defendants’ May 8, 2020 submission, they report that since April 13, 2020, medical staff have been providing enhanced access to sick call, including sick call providers "going out to the [housing unit] tiers and seeing if there are any residents not on the [sick call] schedule who need to be seen that day."²² This type of process would provide an opportunity for inmates locked in their cells to communicate health problems directly to medical staff on a daily basis, and mitigate the current barriers to accessing medical care for inmates on non-quarantine housing units. During the May 7 and May 8, 2020 site visits, amici could not verify through interviews with inmates and staff that this process is being implemented on non-quarantine housing units.

22 See Ex. 4, supra note 18, Attachment at 1.

During a May 15, 2020 telephone interview, a DOC manager explained initiatives to bolster the sick call process that the defendants expected to implement on May 18, 2020, including the daily collection and triage of sick call requests forms by 11:00 a.m. and the scheduling of same-day sick call appointments. The manager reported that sick call request forms would be modified to include COVID-19-like symptoms and date stamped prior to distribution by medical staff on a daily basis in an effort to promote more accurate tracking of submission and response timelines.²³ While these measures may improve certain aspects of the sick call process for those able to submit request forms, they do not address the barriers accessing sick call that are identified in this report for inmates on non-quarantine units.

23 The manager stated that periodically sick call request forms are found in a collection box for inmate grievance forms. Thus, DOC staff responsible for collecting inmate grievance forms have been asked to identify any sick call request forms that may have been incorrectly submitted and immediately transmit those forms to the medical staff.

The other processes outlined in the defendants’ May 8, 2020 submission do not directly address the health care access issues experienced by inmates on non-quarantine units. For example, access to the urgent care clinic is dependent upon the intervention of the correctional staff and the availability of escort staff to accompany an inmate to the medical clinic. Furthermore, chronic care clinics are applicable only to those inmates who have been diagnosed with chronic health conditions. These clinics generally occur at one, two, or three-month intervals, and do not lend themselves to reporting health conditions that may arise between scheduled appointments.

Question Three: Is the DOC providing consistent and reliable access to legal calls, personal telephone calls, running water, daily showers, and clean clothing and clean linens to all inmates in isolation status?

During the May 11, 2020 hearing, in response to questions from the Court and counsel, amici were unable to confirm cleaning practices applicable to the telephones that are made available to inmates on rolling carts in the infirmary and isolation units and to telephones used for inmate legal calls in the offices of case managers. Subsequent review of interview and observation notes as well as a follow-up site visit conducted on May 14, 2020 indicate that the expectation is for the telephone on the rolling cart in the isolation units and infirmary to be cleaned by detail inmates after each inmate uses the telephone, and if detail inmates are not out of their cells, by the correctional staff.²⁴ Amici have not had the opportunity to determine cleaning practices applicable to the telephones inmates use in the offices of case managers.

24 Amici have been informed that the detail inmates who perform cleaning functions in the isolation units are inmates who are housed on that unit who have tested positive for COVID-19. Correctional staff report they select the inmates to be part of the detail cohort in the isolation units after conferring with the medical staff about whether the inmate is medically fit to perform the job.

B. Questions Six through Nine

Question Six: Have DOC staff received training on properly fitted PPE, disposal of PPE, and operations of non-touch, infrared thermometers?

The defendants report that beginning on April 27, 2020 all DOC staff and food service contractors were required to participate in a mandatory training program addressing the proper donning, doffing and disposal of personal protective equipment ("PPE").²⁵ The training, which was developed by staff in the DOC Center for Professional Development and Learning in consultation with the agency's infection control specialist, was offered on-line through "Bridge," the DOC's online professional development platform,²⁶ as well as through written materials that were distributed to staff at both facilities.²⁷ The defendants report that 91 percent of the DOC workforce available for duty participated in the mandatory training as of May 19, 2020.²⁸ In addition to this training program, relative to the signage amici observed during the April site visits, the defendants have increased the number of informational signs addressing the use of PPE, including donning, doffing and disposal, throughout the CDF and CTF. The defendants also provided online training to correctional staff regarding the use of non-touch infrared thermometers; however, DOC managers have explained that the training was intended merely to familiarize those staff with the operation of the thermometers and there was no expectation that correctional staff would conduct temperature checks on inmates, staff, or visitors.

25 See Ex. 7, Open Letter to All Employees from Director Quincy L. Booth, April 27, 2020, Mandatory Training: IR Thermometer and Personal Protective Equipment.

26 See Ex. 8, "Wearing Personal Protection Equipment," On-Line Training for DOC Staff.

27 See Ex. 9, Wearing Personal Protective Equipment Training, Handout.

28 This calculation is consistent with amici’ s independent review of training data that the defendants have provided. Amici also analyzed specifically the percentage of the correctional staff who completed the training, which was 87 percent.

The defendants report that on April 30, 2020 the DOC made an emergency request through a District-wide COVID-related emergency funding process, to fit test 150 DOC employees for N-95 respirators and train an additional 20 DOC employees to serve as fit testers. This funding has not yet been forthcoming. As an adjunct to this initiative, on May 5, 2020, a representative from DC Fire-EMS fit tested an initial cohort of 40 DOC staff for N-95 respirators. Staff members with duty assignments that present the greatest risk of exposure were selected for this initial testing. Two of the 40 staff members received training in how to conduct fit testing on DOC staff. The defendants anticipate that the two trained fit testers will work with the 20 additional staff members the DOC hopes to train to fit test the balance of the DOC workforce and thereafter conduct annual fit testing. As of May 18, 2020, the DOC's emergency funding request remained pending and unresolved.

Question Seven: Has the DOC retained a registered sanitarian to oversee the environmental health and safety programs?

The defendants report that efforts are underway to hire a full-time sanitarian at the DOC. The position has been established and on May 18, 2020 the agency received authorization to post the position vacancy. Effective May 18, 2020, on an interim basis until a sanitarian can be employed by the agency, the defendants report that the DOC has retained the services of a vendor to perform the following services related to environmental health and safety:²⁹ 1) conduct an audit of environmental conditions in the CDF and the CTF, make findings, develop recommendations and formulate a corrective action plan; 2) develop a COVID-19 cleaning protocol for the DOC's cleaning contractor to implement; and 3) provide oversight for a defined period to the DOC's on-site cleaning contractor to ensure that the protocol is followed.³⁰ The task order is for an initial period of three months and includes three, one-month option periods. The services of a registered sanitarian to oversee the DOC environmental health and safety program are not required by the task order; however, DOC management reports that the vendor will provide a team of two sanitarians to perform on-site oversight and inspections related to the COVID-19 cleaning protocol during the period of the service agreement.

29 Ex. 10, Task Order Agreement No. CW82753, with Attachment A, Statement of Work. The version of the Task Order that defendants submitted to amici on May 19, 2020 is unsigned and undated; however, DOC executives informed amici that work under the contract began on May 18, 2020.

30 The task order specifies that following implementation of the cleaning protocol, the vendor will have no fewer than two personnel on site at the CDF and CTF to "shadow the onsite cleaning contractor" for not more than ten eight-hour days. See Ex. 10, Attachment A at 2, supra note 29. The task order also provides for two "follow up monthly COVID-2 inspections" and requires the vendor to submit additional recommendations "to ensure the recommended protocols are sustainable beyond the contract term." Id.

Question Eight: Has the DOC contracted for professional cleaning services on the secure side of the facility?

On May 12, 2020 the District finalized a 90-day emergency contract with Rock Solid District Group, LLC, for comprehensive hazardous materials environmental cleaning services related to the SARS-CoV-2 (COVID-19) pandemic at the CDF.³¹ The contract provides for environmental HAZMAT-level cleaning services on the secure and non-secure sides of the facility, including the common areas of all housing units.³² The defendants report that a virtually identical emergency contract was finalized this week with a different contractor for services at the CTF. Amici has requested but not obtained a contract reflecting service delivery at the CTF.³³

31 See Ex. 11, Contract No. DCAM-20-NC-EM-0079A, effective May 12, 2020.

32 See Ex. 12, Areas of Responsibility for Cleaning Crew [Central Detention Facility].

33 The defendants provided amici with a copy of a contract reported to cover the CTF; however, while it appears this was a drafting error, the document that was submitted addresses HAZMAT-level cleaning services at the CDF and not the CTF.

Question Nine: Has the DOC consulted with public health professional[s] regarding strategies to strengthen the COVID-19-related education program for both staff and inmates; if so, has the DOC implemented those education program strategies?

According to DOC management, the agency developed certain educational materials related to COVID-19, which they transmitted for review and comment to staff in the District of Columbia Department of Health's epidemiology division on May 9, 2020. These materials include frequently asked questions, and information regarding personal protective equipment. Some of the materials are intended to be distributed to staff only and others are intended for both inmates and staff. As of May 15, 2020, the DOC had received some substantive feedback from the epidemiology staff at DOH and anticipated receiving additional feedback in the near term. The DOC plans to revise the educational materials they have developed based on the feedback that is received from DOH epidemiologists and thereafter distribute these materials, as applicable, to staff and inmates.

DOC representatives report that they have an inventory of 350 computer tablets, onto which they load educational and other materials for inmates who participate in specialized programs. These tablets now include health information related to COVID-19. The agency recently received approval to procure 1000 additional tablets on an expedited timetable. It is anticipated that these tablets will be distributed to inmates at both the CDF and CTF. The defendants contemplate including the educational materials that are the subject of ongoing review by DOH on the tablets.

Observations and discussions with inmates and DOC staff during the May site visits underscore the critical need for intensified educational efforts related to COVID-19, including the importance of consistently and properly wearing personal protective equipment and when testing for the virus is indicated.

V. CONCLUSION

Since amici's April 19, 2020 report, the impact of COVID-19 at the CDF and CTF has changed significantly. While the COVID-19 outbreak began at the CTF in late-March 2020 and spread rapidly among the population housed there, beginning in mid-April 2020 the number of new cases at the CTF declined to very low levels. In contrast, the CDF was impacted by COVID-19 for the first time during the second week of April 2020, when the novel coronavirus began its spread during the subsequent five-week period to over 120 inmates and an indeterminate number of staff. At both facilities, by mid-May 2020, the rate of new COVID-19 cases had dropped significantly from peak levels.

DOC management and its contracted health care agency have begun the process of implementing improvements to the medical and environmental health programs to contain and mitigate the effects of the COVID-19 outbreak at the two facilities. Medical staff routinely monitor and assess inmates housed on quarantine and isolation housing units; however, access to medical care for inmates on non-quarantine housing units has been limited due, in large part, to lack of independent access to health care providers coupled with inmates confined to their cells for extended time periods.

DOC representatives report that an enhanced sick call process has been implemented involving sick call providers walking housing unit tiers to ask inmates directly if they have health issues they would like medical staff to address. However, during the May 2020 site visits, neither inmates nor housing unit staff could verify that this process has been implemented. Such a process, if consistently implemented, would provide inmates who are confined on non-quarantine housing units much greater access to health care than they currently have. DOC representatives have indicated that they are making additional changes to the sick call system to address the timeliness of responses to sick call requests. While these changes may result in improvements, it does not appear that these changes will address the barriers that amici have identified.

Since amici's April 2020 site visits, personal protective equipment has been made much more widely available to inmates and staff at the CDF and CTF and most staff have been trained on proper donning, doffing and disposal procedures. As addressed in this report, there is a need for continued emphasis on the importance of consistently and properly wearing personal protective equipment for inmates and staff alike. Fit testing of N-95 respirators has begun for DOC staff with the greatest exposure risk and there are short and long-term plans to fit test the remainder of the DOC correctional workforce.

The DOC has received authorization to hire a sanitarian to oversee the environmental health and safety program at both facilities. Until that individual is employed, the agency has retained a professional environmental consulting firm to provide specified services related to environmental health, including the development of a COVID-19 cleaning protocol. Furthermore, the DOC has contracted for professional and specialized cleaning services on the secure and non-secure sides of both facilities.

The efforts described above have the potential to reduce the spread and impact of COVID-19 at the CDF and CTF. During this period that the DOC is responding to the COVID-19 outbreak, inmates and staff alike are feeling the consequences acutely. For inmates, social distancing, quarantine, and medical isolation practices have resulted in prolonged periods of severely restrictive confinement, isolation, and idleness. Inmates express anger and frustration at being required to spend extended periods in their cells and fear at the prospect of contracting COVID-19. There is a need to provide ongoing support and opportunities for inmates to engage in constructive activities as well as to provide inmates with continuing education about COVID-19 and how to prevent its spread.

The effectiveness of the DOC's response continues to depend on the efforts of staff working in the facilities each day. The correctional workforce is currently diminished due to large numbers of staff being unavailable for duty and many housing units operate short staffed. Members of the correctional staff have consistently told amici that they are exhausted from working long hours under very stressful working conditions, which may include exposure to the novel coronavirus and in some instances the need to wear full PPE for extended time periods. It is important to continue to reinforce for staff the essential role that they play in controlling the spread of the virus and the methods they should employ to minimize the risk of contracting or spreading COVID-19. The significant contribution of DOC staff members during this public health emergency should be recognized and they should be provided with the necessary supports to perform their duties.

Amici are available to answer any questions the Court or the parties have about the matters addressed in this summary report.

Respectfully submitted,

/s/ Grace M. Lopes

Amicus Curiae

Grace M. Lopes

Bar No. 358650

Executive Director

Rising for Justice

901 4^th Street, N.W., Suite 6000

Washington, D.C. 20001

202-607-2224

gmlopes@risingforjustice.org

Mark Jordan

mark@markjordan.consulting

1220 19^th Street, N.W.

Suite 500

Washington, D.C. 20036

202-525-6732

May 20, 2020

Washington, D.C.

INDEX TO EXHIBITS

Exhibit 1 Chart, COVID-19 Tests Administered at the CTF and CDF, by Date of Administration and Test Result, March 14, 2020 – May 14, 2020

Exhibit 2 Table, COVID-19 Test Data, by Facility, by Date, and Seven-Day Average of Positive Test Results, March 14, 2020 – May 14, 2020

Exhibit 3 Table, Correctional Officer and Supervisory Correctional Officer Staff Availability, by Assignment Location, As of May 12, 2020

Exhibit 4 May 8, 2020 e-mail from Eric Glover, General Counsel, District of Columbia Department of Corrections, to Grace M. Lopes, with attached untitled document describing six methods by which inmates in all housing units can access medical care

Exhibit 5 District of Columbia Department of Corrections Central Detention and Central Treatment Facilities, Sick Call Request Form

Exhibit 6 Unity Health Care, Inc., Sick Call Triage, May 5, 2020

Exhibit 7 Open Letter to All Employees from Director Quincy L. Booth, April 27, 2020, Mandatory Training: IR Thermometer and Personal Protective Equipment

Exhibit 8 "Wearing Personal Protective Equipment," On-line Training for DOC Staff

Exhibit 9 Wearing Personal Protective Equipment Training, Handout for DOC Staff

Exhibit 10 Task Order Agreement No. CW82753, with Attached A, Statement of Work

Exhibit 11 Contract No. DCAM-20-NC-EM-0079A, effective May 12, 2020

Exhibit 12 Areas of Responsibility for Cleaning Crew [Central Detention facility].

EXHIBIT 1 EXHIBIT 2

EXHIBIT 3

EXHIBIT 4

From: Glover, Eric (DOC) < eric.glover@dc.gov>

Sent: Friday, May 8, 2020 9:06 AM

To: Grace Lopes < gmlopes@risingforjustice.org>

Cc: Saindon, Andy (OAG) < andy.saindon@dc.gov>; Mark Jordan < mjordan@sparb.org>

Subject: RE: Time-Sensitive Data Requests -- Banks v. Booth

Grace,

Attached is a worksheet describing the six paths to medical treatment for residents at DOC. Thank you and have a good weekend.

Regards,

Eric S. Glover General Counsel District of Columbia Department of Corrections 2000 14^th Street, 7^th Floor Washington, D.C. 20009 Phone: (202) 671-0088 Office Cell: (202) 286-8736 Fax: (202) 671-2514

Confidentiality Notice: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential, or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy, or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by email and delete all copies of the message.

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Residents in all housing units are able to access medical care on all housing units via six processes outlined as follows:

1. Sick Call - Sick call requests are collected daily by nursing staff, where they are date stamped, then triaged according to Unity's "Sick Call Triage" policy. The slips are then given to the unit clerk/medical assistant who schedules the resident's appointment. This scheduling process is trackable in the Electronic Medical Record (EMR). If the

nature of the sick call request is not urgent or symptom-based, the resident might be assessed after 48 hours depending on the nature of the concerns. After the unit clerk/medical assistant schedules the appointment, the sick call slip is scanned into the EMR within 24 hours (and the hard copy is shredded for HIPAA compliance). Occasionally residents place their sick call slips in the resident grievance box or in the mail, which can cause the slip to be delayed in arriving to the nursing triage areas. Date-stamping the sick call slip, scheduling the appointment in the EMR, and viewing the clinical note in the EMR are all easy to track and essentially serve as an electronic log for this process.

2. Enhanced Access in Sick Call clinic - Each day in DOC's housing units, residents are seen by a nurse practitioner, physician's assistant, or physician on their unit's Sick Call clinic. Residents are placed on the sick call schedule in a variety of ways. One way, referenced above, is through the sick call request process. Patients may also be scheduled by the urgent care provider (for example, a blood pressure check after a patient is seen in urgent care for a high blood pressure reading). Chronic care providers can also place patients on the sick call schedule for similar, simple follow up needs. The sick call providers also receive all abnormal intake lab results and see patients to discuss and treat a positive result, such as for chlamydia or a syphilis infection. Lastly, sick call providers are also going out onto the tiers and seeing if there are residents not on the schedule who need to be seen that day. This enhancement enables those who may not have filled out a sick call slip, or those who may not want to discuss their COVID-19 status or other concerns in a public setting, to be seen by a provider in the sick call clinic that day. On any given day, more patients may be seen in the Sick Call clinic than were on the original roster. The sick call process can be tracked in the EMR. This enhancement commenced on 04/13/2020.

3. Urgent Care Clinic - Residents are instructed in the Inmate Reception Center, the Intake Housing Unit and on all housing units that they can bring more urgent health concerns (including a wide range of symptoms that could be consistent with COVID) to a DOC officer's attention and be seen in at the DOC's Urgent Care Clinic, the same day of their complaint. Once alerted of a resident's complaint, DOC's correctional officers call medical staff who instruct the officers to bring the resident directly to the Urgent Care Clinic to be seen. Resident visits to the Urgent Care Clinic are documented in their EMR notes.

4. Chronic Care Clinic - Residents receive a comprehensive medical assessment during their initial intake screening. Those who present with a chronic medical condition are assessed, treated then scheduled for a follow-up appointment in the Chronic Care Clinic. The follow up appointments are usually scheduled 30 days out, but can be scheduled sooner, if necessary. Based on the stability of their condition, resident will have follow-up care appointments at

either 30, 60 or 90 day intervals (or sooner as needed). These appointments are tracked in the EMR. If a patient presenting for a Chronic Care Clinic appointment exhibits COVID-19 related symptoms (e.g., as detected by vital signs), they will be placed under investigation for COVID – 19.

5. Quarantine Housing Unit monitoring : Residents on the quarantine unit are seen twice daily by Unity's nursing staff. On their rounds on the quarantines housing units, nurses assess residents’ vital signs and ask the residents if they have any COVID-19 symptoms or other concerns. These visits are noted in the EMR. As an enhancement designed to help pick up COVID-19 positive patients quickly, when nurses note any abnormal vital signs or have a resident complain of symptoms, the nurses immediately call a provider (NP, PA or MD) and the resident is seen (and generally swabbed) within two hours. Regular Sick Call clinic also occurs on all housing units under quarantine. Patients seen in sick call clinic that day may exceed the initial roster of patients scheduled if nurses note abnormalities in vital signs or want residents to be quickly seen given their complaints. This enhancement to care commenced 03/26/2020 with the first quarantine unit.

6. Medical Emergencies - When a resident has an acute medical emergency, DOC's correctional officers call Unity's Urgent Care Provider and a code is called to that Unit. The Medical Emergency Response Team promptly response to the call to assess the resident. If the resident requires treatment beyond what can be provided at DOC, 911 is called and DC Fire and Emergency Medical Services arrive to assess the need for the resident to be transferred to a higher level of care. Medical emergencies can be tracked through a resident's EMR.

EXHIBIT 5 EXHIBIT 6

EXHIBIT 7

D.C. Department of Corrections

Office of the Director

Open Letter to All Employees

From Director Quincy L. Booth

DOC-OL20-09: April 27, 2020

(Mandatory Training: IR Thermometer and Personal Protective Equipment)

In these unprecedented times, DOC appreciates your ongoing dedication, professionalism and support of the agency's critical mission. The safety and security of staff, residents and contractors is our top priority.

As we work together to respond to the COVID-19 public health emergency, we need to constantly emphasize the importance of personal protective equipment (PPE). That is why we are providing masks and gloves to everyone entering our facilities and requiring they be worn at all times. Staff assigned to transportation and the quarantine and isolation units will be provided specific PPE for use in those areas. It is imperative that all staff understand how to properly use, don, doff, and dispose of their PPE.

I want to thank the Center for Professional Development and Learning team for creating the required training module, " Wearing Personal Protective Equipment ," through the Bridge Learning Management System. This training is mandatory for all DOC staff .

Please take the necessary time to complete the training. If you are completing the training during your shift, you must get your supervisor's approval prior to completing the course during your shift.

Please see the attached instructions on how to navigate the system. It is critical that everyone take this course and I ask for your cooperation. If you have any questions or concerns, please contact Dr. Lynnita Thomas at Lynnita.thomas@dc.gov.

All DOC staff must complete the training by Monday, May 4, 2020. If you do not attend, your supervisor and division Deputy Director will be notified by the online system.

Please continue to practice health and safety precautions that will help us keep our DOC facilities, staff, and residents safe and healthy. Follow the guidance below on how to reduce your risk of infection and slow its spread.

• Practice social distancing by staying at least six feet away from other people.

• Thoroughly wash your hands for at least 20 seconds multiple times a day.

• Avoid close contact with people who are sick.

• Avoid touching your eyes, nose, and mouth.

• Sanitize your equipment.

• Follow the safety protocols in place at each of the DOC facilities.

• If you are sick, contact your healthcare provider and request sick leave through your supervisor.

Thank you for your continued commitment to serving our city and our neighbors.

For more information about COVID-19, visit:

https://coronavirus.dc.gov/

https://dchealth.dc.gov/coronavirus

https://cdc.gov/coronavirus/2019-ncov/index.html

https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/

PLEASE READ AT ALL ROLL CALLS FOR SEVEN (7) CONSECUTIVE DAYS AND POST ON ALL APPROPRIATE BULLETIN BOARDS EXHIBIT 8

Video links

Infrared Thermometer

https://youtu.be/UrMoK9CD4f0

Face Mask Use

https://youtu.be/JwPWdkbyizw

Donning and Doffing PPE

https://youtu.be/quwzg7Vixsw EXHIBIT 9

EXHIBIT 10

EXHIBIT 11 EXHIBIT 12