John Dailey tried to sue over COVID-19 conditions at his prison, FMC Butner, but he died before his case could be filed.
Butner Correctional Complex, a sprawling facility about an hour outside Raleigh, is North Carolina’s only federal prison. More prisoners have died of COVID-19 at Butner than at any other prison run by the federal government nationwide.
That’s what prompted a long-awaited lawsuit filed last week, which seeks safer conditions for prisoners inside of what it calls “the deadliest of all federal facilities during this pandemic.”
It alleges actions taken by prison leadership endanger the lives of people incarcerated inside.
The complaint, filed last week, will not include Dailey, a 62-year-old who died of COVID-19 in July.
Justin Long, spokesperson for the Bureau of Prisons, said the agency does not comment on pending litigation.
‘No getting away from it’
Butner Federal Correctional Complex is a large, five-unit prison in Butner operated by the federal Bureau of Prisons. Because one of its buildings is a medical center, federal inmates from across the country are transferred to Butner for later-in-life or advanced health care.
COVID-19 entered the prison early on in the pandemic. By late March, a mass outbreak was spreading throughout the facility, killing its first prisoner by April 9 and infecting over 900 incarcerated people to date.
The prison experienced a relative tapering of cases during August and September. But outbreaks inside Butner have renewed in recent weeks, with more than 100 current active cases inside the facility’s medical unit, which houses prisoners in need of complex care.
The increasing caseload mirrors the spread in North Carolina’s general population, as the state reported record-breaking daily totals for new COVID-19 cases last week.
“We think of prisons as closed environments, but they’re really not,” said Maria Morris, attorney at the ACLU National Prison Project. “They’re closed for the people who are incarcerated there, but there are people who are going into the prison from the community every single day.
“If there’s COVID in the community, there’s likely going to be COVID in the prison,” she added. “And once it’s in the prison, there’s no getting away from it.
Twenty-six incarcerated people have died of COVID-19 in Butner prison.
That’s a little more than double the number of prisoners who have died in Federal Medical Center Fort Worth, a smaller federal prison in Texas with the second-largest death toll.
Lawsuit refiled with more research
One of the prisoners who died was Dailey, a podiatrist serving a 27-month sentence for Medicaid fraud.
Back in May, he and several other prisoners at Butner joined with the American Civil Liberties Union and other advocates to file a class action lawsuit seeking immediate relief from COVID-19 conditions in the facility.
“He was very helpful in helping us understand what was going on, among other things,” said Morris. “He was a doctor, so he thought about things in a particular way.”
They sought a preliminary injunction, a court order which would have mandated the federal government take immediate action to rectify current conditions and prevent further spread of the virus. This order was denied.
“The court made it clear, in its denial of that early relief, that it saw problems in the lawsuit that were going to make it very difficult to prosecute at that time,” said Morris. “We chose to dismiss the lawsuit and conduct further investigation.”
Morris declined to elaborate on what those issues were but alleged their research over the last few months suggested that the concerns they raised in the original complaint were far from anecdotal, one-time incidents.
“The things that have happened at Butner are pretty shocking,” alleged Morris. “We are not willing to give up on trying to get relief for the people who are incarcerated there.”
Time played a large role in the plaintiffs’ decision, according to Morris. The original case was filed early on in the pandemic when federal and local agencies of all types were attempting to coordinate and develop appropriate responses to the spread of COVID-19.
This complaint comes eight months into the pandemic.
“There is a difference between not doing something for a week, and how much culpability there might be for that, versus not doing something for months and months,” said Morris. “The amount of COVID-related deaths there made it important for us to continue with this.”
Ideal candidate for release
In the interim, Dailey attempted to obtain early release through other means.
Butner officials had announced the prison’s first case of COVID-19 in late March, in a staffer who tested positive for the virus. The same day, Attorney General William Barr issued a memo to federal prisons urging them to send medically vulnerable, low-risk inmates home, or let them serve out the remainder of their sentence in home confinement.
Dailey, who had lived with his wife in Las Vegas prior to entering Butner in 2019 on conviction for Medicaid fraud he committed in the 1980s, was an ideal candidate.
He was serving a sentence for a non-violent crime, at a higher risk for severe COVID-19 illness because of his age, and had recently undergone chemotherapy for lymphoma, a type of cancer that cripples the immune system.
He’d first filed for compassionate release after he arrived in Butner last year due to his cancer, according to his attorney Carter Law. When it was denied, he appealed to Michael Carvajal, the director of the Bureau of Prisons, in March, but his appeal was automatically rejected because of a paperwork error.
He filed for compassionate release due to the coronavirus pandemic in early April through the federal court in Missouri’s Eastern District, where he was sentenced, according to court documents. The district denied his request, urging him to first re-apply with the Bureau of Prisons.
“The BOP should have the opportunity to consider Dailey’s case before judicial intervention,” the denial stated.
Law refiled a compassionate release request to Butner wardens on his behalf on April 13. She said he never received a reply. Dailey contracted COVID-19 in Butner and died on July 3.
“He remained, until my last conversation with him, totally optimistic that he would return home,” said Law.
“One of our current plaintiffs, who was in the same housing unit with him, said that even while Mr. Dailey was sick, he was helping people get their papers together to request compassionate release,” said Morris. “By the time he was taken out to get medical care, even though he was getting sicker and sicker, they had to take him to the hospital by ambulance.
“What happened to him was terrible,” she added.
Inconsistent practices alleged
The new complaint, which was filed on Oct. 26, alleges Butner’s housing conditions make it impossible to physically distance. It also states that the prison’s policies for screening for COVID-19 have been inconsistent, varying widely across its units and failing to contain the spread of the virus.
“Whether a person incarcerated at Butner will be removed from other incarcerated people due to potential COVID status appears to be determined solely by whether the person has a high temperature,” it states. “Staff at Butner occasionally have checked the temperatures of all people in a housing unit, but even then, Defendants inconsistently asked questions about other COVID-19 symptoms.”
If an incarcerated person suspects he may be running a temperature, the complaint says, defendants generally have required the person to pay the $2 for a “sick call” out-of-pocket.
Though the BOP declined to comment on specific allegations raised in the complaint, in an emailed statement, the agency said inmates do not have to pay a copay for COVID-related sick calls.
“There is a waiver in place for this,” said Long.
The prison also inconsistently enforces its mask-wearing requirement, plaintiffs allege, among both guards and inmates.
The complaint accuses the BOP of other forms of negligence, such as requiring prisoners to stand in long lines in which it is impossible to keep 6 feet apart to obtain needed daily medications or meals, ordering prisoners to clean units that housed COVID-positive individuals as part of their mandated prison jobs, and waiting until August to inform inmates that they needed to wait 10 minutes before using a communal phone once it’s been sprayed with disinfectant. The disinfectant, according to court filings, has been used in Butner since March.
These allegations were derived from documents filed by the BOP in their role as defendants in the original complaint in May, according to Morris, as well as ongoing conversations with about 20 to 30 people incarcerated inside Butner. Ten of them are named plaintiffs in the complaint.
The complaint also alleges other types of medical care and necessary treatments have been “severely curbed” at Butner due to outbreaks at the facility.
Charles Hallinan, one of the plaintiffs in the case, has allegedly not received needed care to monitor his bladder cancer in Butner FMC since January. Hallinan, who is 79, is in remission for both bladder cancer and prostate cancer.
Email correspondence from a doctor who reviewed Hallinan’s medical records in September, which NC Health News obtained from plaintiffs, suggests he needs ongoing, routine care.
“The bigger concern is the bladder cancer which has a much higher recurrence rate and requires frequent cystoscopy to be sure it is not recurring,” the physician wrote in an email from Sept. 14.
Ninety-four percent denied
Plaintiffs are seeking a reduction in the number of people incarcerated inside the facility.
“The overall goal is to keep people safe,” said Morris. “It’s clear that the single most important thing for that is reducing population density.”
By the end of May, the federal government had granted the requests of just 29 of the 524 prisoners at Butner who applied for compassionate release due to the coronavirus pandemic, according to data obtained by the Marshall Project.
Dailey was among the 94 percent who were denied. One percent of the prison’s population has been transferred to home confinement since late March, according to a June 11 court document.
Studies have shown older prisoners are far less likely to reoffend than younger prisoners after their release, and federal prisoners in particular have lower recidivism rates than their state counterparts.
“Butner has a large medium-and-low-security population. And it has a high-risk population in terms of people with medical conditions,” said Morris. “So it seems like it should be a place that they could get people into home confinement.”
Plaintiffs are also seeking better prevention and spread-reduction actions at the prison through the litigation.
“With whatever population they do maintain at Butner, they need to be thinking through ways of making it possible for people to keep a distance,” said Morris. “They need to be implementing better testing, contact tracing, quarantine and isolation strategies. Because what they’re doing right now is woefully inadequate.”
The original lawsuit sought an order mandating immediate intervention actions within the prison; this time, plaintiffs have not requested such an injunction.
“Though that may change, particularly given what’s going on [with rising cases] at the FMC,” said Morris.
This story originally ran at North Carolina Health News, an independent, non-partisan, not-for-profit, statewide news organization dedicated to covering all things health care in North Carolina.