SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION PATRICK ...

Case 2:20-cv-00630-JMS-DLP Document 55 Filed 01/07/21 Page 1 of 22 PageID #: 1118

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

PATRICK R. SMITH, et al.

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Plaintiffs,

v.

WILLIAM P. BARR, et al.

Defendants.

No. 2:20-cv-00630-JMS-DLP

Order Granting in Part and Denying in Part

Plaintiffs' Second Motion for Preliminary Injunction

The plaintiffs here¡ªtwo inmates at FCI Terre Haute¡ªhave made a strong showing that

they face an unconstitutional health risk if the defendants carry out scheduled executions without

significant modifications to their COVID-19 prevention measures. For this reason and those

discussed below, their second motion for preliminary injunction is granted.

I.

Background, Procedural History, and Second Motion for Preliminary Injunction

All federal executions take place at the Federal Correctional Complex ("FCC Terre Haute")

in Terre Haute, Indiana. FCC Terre Haute contains multiple facilities, including, as relevant here,

the United States Penitentiary ("USP"), where death row inmates are housed, the Federal

Correctional Institute ("FCI"), and the execution facility. The plaintiffs¡ªtwo inmates at the FCI

who purport to represent a class of all incarcerated persons at FCC Terre Haute¡ªallege that the

defendants' decision to carry out executions at FCC Terre Haute during a deadly pandemic violates

their rights under the Eighth Amendment. Dkt. 1, ? 8.

The plaintiffs filed an emergency motion for preliminary injunction on November 30,

2020, dkt. 12, which the Court denied on December 8, 2020, dkt. 37. The Court concluded that

although "conducting executions at this time may well result in more COVID-19 cases for those

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Case 2:20-cv-00630-JMS-DLP Document 55 Filed 01/07/21 Page 2 of 22 PageID #: 1119

involved in the executions, the plaintiffs have not shown that increased risk extends to them, and

thus have not shown a likelihood of success on the merits of their motion." Id. at 1¨C2. The Court

found that the defendants and prison staff could do more to prevent COVID-19 transmission at

FCC Terre Haute generally and that conducting executions during the pandemic is risky, but that

the plaintiffs failed to produce evidentiary support in the form of scientific or statistical data to

demonstrate that conducting executions during the pandemic creates substantial additional risks to

the inmates' health. Id. at 13¨C14. After denying the motion, the Court granted the plaintiffs' motion

for expedited discovery. Dkts. 45, 46.

Brandon Bernard was executed on December 10, and Alfred Bourgeois was executed on

December 11.1 Three executions are scheduled for next week: Lisa Montgomery on January 12,

Cory Johnson on January 14, and Dustin Higgs on January 15.2

On December 28, 2020, the plaintiffs filed a second motion for preliminary injunction and

evidence in support of their motion. Dkt. 47. The evidence includes information about an outbreak

of COVID-19 infections at FCC Terre Haute, information produced in discovery by the

defendants, and a declaration from an expert in modeling risk for infectious diseases, Dr. Nina

Fefferman. Dkts. 47-2¨C10. The defendants filed a response in opposition with updated declarations

from FCC Terre Haute warden T.J. Watson and BOP Regional Counsel Rick Winter. Dkts. 51,

51-1, 51-2. The plaintiffs filed a reply, dkt. 54, and the motion is now ripe for ruling.

As discussed at length in the Court's December 8, 2020 Order, the novel coronavirus, or

COVID-19, is killing hundreds of Americans each day, and prisoners are particularly vulnerable.

1

Federal Bureau of Prisons, Historical Information: Capital Punishment,

(last visited Jan. 7, 2021).

2

Federal Bureau of Prisons, Scheduled Executions,

(last visited Jan. 7, 2021).

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December 2020 was the deadliest and most infectious month in the United States since the start of

the pandemic, with over 77,000 deaths and 6.4 million new cases.3

When the Court issued its December 8, 2020, Order, 264 FCC Terre Haute inmates and

21 staff members were COVID-19 positive, 3 inmates had died, and 301 inmates and 38 staff

members had recovered. Dkt. 37 at 5. As of January 7, 2021, 108 FCC Terre Haute inmates and

24 staff members are positive, and 1117 inmates and 105 staff members have recovered.4 Put

differently, between those two dates, 657 inmates and 70 staff members tested positive for the

virus. On December 7, 2020, an FCI inmate died in an area hospital after testing positive for

COVID-19 at the prison on November 17, 2020.5 Both Mr. Johnson and Mr. Higgs tested positive

in December, as did other inmates on death row.6

Each execution brings approximately 50 to 125 individuals to FCC Terre Haute. The

execution team consists of approximately 40 BOP employees brought from out-of-state facilities.

Dkt. 28-1 at ? 16. The execution team does not quarantine upon their arrival in Indiana. Id. at ? 17.

The execution team works primarily in and near the execution facility; they generally do not enter

FCI or USP or interact with inmates other than the condemned. Dkt. 28-1 at ? 17. The team does,

3

Nicole Acevedo, December was the deadliest, most infectious month since the start of the

pandemic, NBC NEWS, (last updated Jan. 2, 2021). Further, a new, more

transmissible COVID-19 variant was identified in the United States in December, and experts are

confident that variant is now everywhere. Phil Helsel, Covid variant found in Florida, more cases

identified in California, NBC NEWS (Dec. 31, 2020), (explaining variant

is believed to be more transmissible but not deadlier).

4

Federal Bureau of Prisons, COVID-19 Cases, (last updated

Jan. 7, 2021).

5

BOP Press Release (Dec. 8, 2020), Inmate Death at FCI Terre Haute,

.

6

Lisa Trigg, TRIBUNE-STAR (Dec. 22, 2020), COVID-19 soars at Terre Haute federal prison

complex, .

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however, interact with FCC Terre Haute personnel incident to their role assisting with the

executions. Id. Approximately 70 FCC Terre Haute staff are removed from their regular duties to

assist with the executions by managing check points and perimeter security, staffing the command

center, and escorting witnesses and demonstrators. Id. Media witnesses, members of the

defendants' legal team, and family members of the victims and inmates also assemble at the prison

to witness the execution. Id. at ? 16.

At FCC Terre Haute, all staff, inmates, and visitors are supposed to wear masks inside the

institution. Id. at ? 9. In accordance with CDC and BOP guidelines,7 temperature checks and

COVID-19 screening are conducted for everyone entering the grounds, and those with a

temperature of 100.4 degrees or higher are denied entry. Id. Staff who transport witnesses and

process witnesses through checkpoints are required to wear fit-tested N95 masks, face shields,

gloves, and surgical gowns. Dkt. 33-1 at ?? 8¨C9. For the December executions, all execution team

members were supposed to wear N95 masks,8 and they will be required to do so again for the

January executions. Dkt. 51-2 at ? 6. Further, as of December 30, 2020, FCC Terre Haute received

a shipment of COVID-19 vaccinations, and 206 staff and 355 high-risk inmates9 have received the

first round of vaccinations out of 709 staff members and 2228 inmates. Dkt. 51-1 at ?? 8¨C9.

7

See CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19)

in Correctional and Detention Facilities, ("CDC Interim

Guidance") (last updated Dec. 31, 2020); Federal Bureau of Prisons, BOP Modified Operations,

(last updated Nov. 25, 2020).

8

N95 masks filter out 95% of air particles, making them more protective than cloth masks at

preventing the spread of COVID-19. CDC, Personal Protective Equipment: Questions and

Answers, (last updated

Aug. 8, 2020).

9

According to Warden Watson, "The Plaintiffs were not among those inmates initially given the

vaccination because they are not medically in a high risk category." Id.

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COVID-19 tests for BOP employees are conducted on a voluntary basis. Dkt. 28-1 at ? 23.

Eleven BOP employees are known to have tested positive contemporaneously with participating

in executions: the FCC Terre Haute staff member disclosed in the Hartkemeyer case, the

previously disclosed eight execution team members who participated in Orlando Hall's execution

in November, dkt. 33-2 at ? 8, an additional execution team member who participated in the July

executions, and an additional FCC Terre Haute employee who worked in the USP and FCI who

assisted with executions in late September, dkt. 47-9. After the December executions, only three

members of the execution team elected to be tested; all tested negative. Dkt. 51-2 at ? 5. None of

the execution team members have reported a positive COVID-19 test since the December

executions, but again only three chose to be tested. Id.

Because the contacts between those involved in the executions and FCC Terre Haute

inmates are limited, the Plaintiffs enlisted Dr. Fefferman, a professor in both the Department of

Ecology and Evolutionary Biology and the Department of Mathematics at the Professor at the

University of Tennessee, Knoxville, to explain how conducting executions at this time could

increase inmates' risk of contracting COVID-19. Dkt. 47-2 at ?1. Dr. Fefferman is a researcher of

the epidemiology, ecology, and evolution of infectious disease, pandemic preparedness, national

biosecurity, and infrastructure protection. Id. at ? 2. She has been studying COVID-19 extensively

since February 2020, with specific attention to modeling the risks of spread from and within

carceral facilities. Id. at ? 4. Dr. Fefferman reviewed materials provided by the plaintiffs' counsel,

including the execution plans and layout of FCC Terre Haute, Mr. Winter and Warden Watson's

prior declarations, and discovery related to contact tracing and COVID-19 testing related to the

executions. Id. at ? 7.

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