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BOP COVID-19 UPDATE -- February 12, 2021

Currently positive-testing inmates: 1,606 (down from 1,620)

Currently positive-testing staff: 1,693 (up from 1,674)

Recovered inmates: 45,252 (up from 45,165)

Recovered staff: 4,631 (up from 4,624)

Institutions with the largest number of currently positive-testing inmates:

Tallahassee FCI: 230 (unchanged)

Florence High USP: 115

Leavenworth USP: 111 (up from 110)

Institutions with the largest number of currently positive-testing staff:

Pollock USP: 82 (unchanged)

Tucson USP: 69 (unchanged)

Oklahoma City FTC: 59 (unchanged)

System-wide testing results: Presently, BOP has 123,801 federal inmates in BOP-managed institutions and 13,867 in community-based facilities. Today's stats:

Completed tests: 103,057 (up from 102,928) Positive tests: 45,999 (up from 45,928)

Case Note: A cautionary tale of the need to exhaust the issues you intend to raise in compassionate release application before the district court...

In U.S. v. Williams, 2021 WL 486885, at *1 (7th Cir. Feb. 10, 2021) (published) (per curium), the Seventh Circuit emphasized that the issue raised in the district court must first be exhausted in the inmate's request to the Warden: "By taking this approach, the district court left open the question whether Williams's requests to the warden for release based on the trial errors sufficed to support an argument based on COVID-19. The question whether particular issues must be exhausted is a recurring one, and so we think it important to clarify our position on it. … The government properly raised exhaustion—a nonjurisdictional defense—in the district court, arguing that Williams never raised the COVID-19 ground for release with the prison's warden. It re-asserts this defense on appeal. We recently ruled that the exhaustion defense 'is a mandatory, claim-processing rule and therefore must be enforced when properly invoked.' … The problem is that in his counseled motion, Williams sought compassionate release based on the risks of COVID-19, but he never asked the Bureau to seek his release on that ground. Instead, he asked the Bureau to seek compassionate release based on his trial judge's conduct. We have not yet had occasion to consider whether, in order properly to exhaust, an inmate is required to present the same or similar ground for compassionate release in a request to the Bureau as in a motion to the court. But now that the issue is squarely before us, we confirm that this is the rule—any contrary approach would undermine the purpose of exhaustion. … We have not found an appellate decision addressing this issue, but we recognize that some district courts have reached a conclusion contrary to ours. … They rely on Sims v. Apfel, 530 U.S. 103, 112, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), a Social Security case, which cautioned courts to refrain from imposing issue-exhaustion requirements, particularly where there is no adversarial administrative proceeding, id. at 108–110, 112, 120 S.Ct. 2080, as is true of the Bureau's compassionate-release procedures. But these decisions do not persuade us for several reasons. … In our view, § 3582(c)(1)(A)’s exhaustion requirement more closely resembles the exhaustion requirement in the Prison Litigation Reform Act, see 42 U.S.C. § 1997e(a), than the Social Security regulations addressed in Sims. That Act requires “proper exhaustion” of available administrative remedies in order to afford prisons an opportunity to address issues before they are brought to federal court. See Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); § 1997e(a). Consistent with that statutory scheme, an inmate cannot satisfactorily exhaust under the PLRA by filing a grievance on one ground and then suing in court on an unrelated ground. See id.; Schillinger v. Kiley, 954 F.3d 990, 995–96 (7th Cir. 2020).”

Death Watch: The BOP have identified one additional inmate death, that of Girard Lafortune, 63, FMC Devens. Inmate fatalities now total 221. Four of these inmates died while on home confinement. BOP staff fatalities remain at 4.

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