FCI Waseca

The Federal Correctional Institution — Waseca has seen a dramatic increase in COVID-19 cases since mid-August. A group of new inmates from Oklahoma was transferred to the prison at that time. (Federal Bureau of Prisons photo)

Aaryana Malcolm became so weak, coughing up blood and vomiting while sick with COVID-19, that other inmates at the federal prison in Waseca had to help her eat and shower while her requests for medical attention were rejected, a new lawsuit alleges.

The American Civil Liberties Union of Minnesota filed a lawsuit on behalf of Malcolm and 13 other inmates at the Federal Correctional Institution in Waseca alleging that COVID-19 “spread like wildfire” because prison officials didn’t take action to limit its spread, causing 70% of the inmates to contract the virus, and didn’t provide adequate health care for those who were sick.

Waseca County had 186 COVID-19 cases in mid-August when a few dozen inmates were transferred into FCI-Waseca on Aug. 18. A month later, COVID-19 was spreading in the prison and in the community in two separate outbreaks at such an intense rate that Waseca County had one of the fastest growing surges of COVID-19 cases in the country, according to health officials. By mid-October, the county had a cumulative 885 COVID-19 cases.

“We have so many clients that ... are from a particular unit, Unit A, and that seems to really be ground zero for where the outbreak started and moves into the rest of the facility from there,” ACLU staff attorney Isabella Nascimento told the Waseca County News.

The class action lawsuit, representing inmates who are at a higher risk for a severe complications or death from the virus, was filed in U.S. District Court of Minnesota Dec. 9. The ACLU is seeking an emergency order requiring that the most medically vulnerable inmates be transferred to home confinement; the immediate implementation of social distancing and hygiene measures; and adequate medical care for inmates who have COVID-19 even though the Bureau of Prisons has declared them “recovered.”

The lawsuit is filed against Bureau of Prisons Director Michael Carvajal and FCI-Waseca Warden M. Starr.

Starr could not be reached for comment and the Bureau of Prisons declined to comment, stating that it does not comment “on matters that are the subject of pending legal proceedings, which includes FCI Waseca’s response to COVID-19.” Carvajal and Starr haven’t yet filed a response to the ACLU’s petition with the court, but they have 30 days to do so.

The ACLU has also filed a request for a temporary restraining order directing the prison to immediately implement and enforce social distancing, quarantine and hygiene measures, and to appoint an independent monitor with medical expertise to ensure compliance. U.S. Judge Leo Brisbois is scheduled to hear oral arguments on the restraining order request on Jan. 5.

FCI-Waseca currently has three active COVID-19 cases, two among the staff and one among the inmates, according to the Bureau of Prisons. Twenty staff and 439 inmates at FCI-Waseca have recovered from COVID-19, according to the federal agency.

ACLU allegations

The ACLU has been tracking COVID-19 cases in prison facilities since the pandemic’s beginning and Waseca piqued their interest due to the COVID-19 spike that suddenly happened, Nascimento said.

A University of Minnesota law professor and her students were filling out petitions for compassionate release to home confinement for inmates, including some at FCI-Waseca.

The inmates in the lawsuit, most of whom are serving sentences for drug offenses, have requested to be transferred to home confinement due to their high risk for COVID-19 complications. Starr either denied their request or if she approved it, it was denied by the board that had final say, according to the ACLU’s petition.

“As those petitions were being denied, it became very clear that there was an increasing number of cases there and something had gone really awry, something had gone really wrong there because suddenly they were getting a lot of requests,” Nascimento said.

According to the ACLU’s petition:

Medical staff checked on Malcolm, 51, after a guard contacted her case worker and she was rushed to the hospital via ambulance after her oxygen level dropped. After 10 days in the hospital, she returned to FCI-Waseca and was locked in a room for two weeks. No one helped her with showering, dressing or eating. She was too weak to get onto the bed and slept on the floor.

She tested positive for COVID-19 on Sept. 1 after being in Unit A and is still taking numerous medications, has coughing spells and asthma attacks, and frequently becomes dizzy and lightheaded. Starr denied her request for release to home confinement.

Noelle DuBray, 40, was locked into Unit A with 30 other inmates and watched as nearly all of them contracted COVID-19. She was told to drink water and buy ibuprofen when she reported she had chest pains, trouble breathing, diarrhea, body aches and terrible headaches. A judge denied her request for home confinement after she exhausted administrative remedies.

Pauline Hemicker, 37, tested positive for COVID-19 on Sept. 9 after she was in Unit A. She is still experiencing chest pains and shortness of breath. She is required to work as a sewer for the Federal Prison Industries from 7:15 a.m. to 8 p.m. during the week and to 3 p.m. on Sundays for 92 cents per hour though her medical conditions make it difficult to work. Her request for a job change was denied and, believing her life was in danger, she did not go to work. Starr denied her grievance for failing to list a date and time. She has requested home confinement.

The ACLU wants the best outcome for its clients and hopes that they can’t be ignored anymore, Nascimento said. Releasing inmates to home confinement who have a high risk for COVID-19 complications will also benefit the inmates who remain because there will be more room to social distance, she said.

None of the inmates were sentenced to death and COVID-19 shouldn’t be a death sentence solely because they are in the prison, she said.

“No one could have anticipated this pandemic, but that doesn’t mean that you just leave them to die in there,” she said.

The beginnings of the outbreak

While the ACLU alleges COVID-19’s spread in the prison went largely unchecked, Waseca County Public Health Director Sarah Berry said it wasn’t a large risk to the community. The cases at the prison were largely among the inmates with “very, very little” positive cases among the staff, she said.

“The hazard to the community, who was at that time having its own outbreak, was insignificant,” Berry said.

However, they can’t say there was zero connection between the cases at the prison and the outbreak that happened simultaneously in the Waseca community because it’s hard to know whether the prison staff contracted COVID-19 from community spread in the city or the cases in the prison, she said.

The outbreak at the prison began when inmates who had COVID-19 were transferred into the prison, Kris Ehresmann, infectious disease director at the Minnesota Department of Health, said during a Sept. 14 news conference.

“One of the challenges that (prison facilities) face is not only the issue of isolating, and quarantining staff and inmates, but what physical environment they are in and how that impacts their ability to successfully isolate and quarantine people,” she said.

The decision to transport the inmates to FCI-Waseca was made at the federal level and federal authorities don’t test inmates prior to transporting them to a new facility, she said. She added that the state doesn’t have control over that.

The prison reported its cases to the state, but did not ask the state to provide technical assistance during the outbreak, according to MDH spokesman Doug Schultz. The Centers for Disease Control and Prevention deferred all questions to the Bureau of Prisons about whether it assisted the prison during the outbreak. The prison connected with Waseca County public health officials during the outbreak, but said it had the resources it needed internally to handle it, Berry said.

Memos and legal challenges

U.S. Attorney William Barr directed Carvajal in a March 26 memo to transfer inmates to home confinement when appropriate to decrease their health risks, followed by another memo to expedite the process. Factors to take into consideration in the decision for home confinement include the inmate’s age and vulnerability to COVID-19, the inmate’s conduct in prison and their risk of recidivism, according to the memo.

Since the memo, the Bureau of Prisons reports that it has placed 18,859 inmates in home confinement and currently has 7,996 inmates in home confinement in the United States.

The Office of Inspector General, the watchdog arm of the U.S. Department of Justice, has also been conducting remote inspections of Bureau of Prisons facilities to ensure they comply with the guidelines for prisons to mitigate the spread of COVID-19. The office hasn’t reported any remote inspections of FCI-Waseca and the office didn’t respond to questions about whether an inspection would occur at the facility.

FCI-Waseca isn’t the only facility facing a lawsuit from the ACLU over its handling of COVID-19 cases in the facility.

The ACLU is currently appealing the dismissal of its lawsuit over Minnesota’s release of inmates to home confinement at its Moose Lake corrections facility during the COVID-19 pandemic. The ACLU also filed a lawsuit against the Minnesota Department of Corrections in October, alleging that it failed to take steps to mitigate the spread of COVID-19 in its state prison facilities. The next court date for that case is slated for January after Judge Sara Grewing criticized the state in her order last week.

“The statistics alone are sufficient to sustain a finding that there has been a failure within the department to address the spread of COVID-19,” she wrote.

Reach Associate Editor Lisa Kaczke at 507-444-2371. ©Copyright 2020 APG Media of Southern Minnesota. All rights reserved.

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