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BOP COVID-19 UPDATE -- February 24, 2021

Currently positive-testing inmates: 1,519 (down from 1,544)

Currently positive-testing staff: 1,661 (down from 1,682)

Recovered inmates: 46,175 (up from 46,082)

Recovered staff: 4,801 (up from 4,766)

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

Schuylkill FCI: 266 (down from 271)

Florence High USP: 209 (down from 226)

Fort Dix FCI: 192 (up from 172)

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

Pollock USP: 83 (unchanged)

Tucson USP: 69 (unchanged)

Oklahoma City FTC: 59 (unchanged)

System-wide testing results: Presently, BOP has 124,226 federal inmates in BOP-managed institutions and 13,556 in community-based facilities. Today's stats:

Completed tests: 104,923 (up from 104,713) Positive tests: 46,850 (up from 46,782)

Case Note: Individualized circumstances can counter presumption that previously infected defendant, now vaccinated, but immunosuppressed after kidney transplant, is no longer at risk...

In U.S. v. LUIS HERNANDEZ SANDOVAL, 2021 WL 673566 (W.D. Wash. Feb. 22, 2021) (Settle, J.), the court accepted expert testimony that this defendant may remain at risk of COVID notwithstanding a previous infection and receipt of the vaccine, because he had a kidney transplant and is immunosuppressed, explaining, "Here, Sandoval asserts his chronic medical conditions constitute extraordinary and compelling reasons because they place him at a higher risk of severe infection from COVID-19. … Yet, Sandoval has already contracted COVID-19 and has received the first dose of the COVID-19 Moderna vaccine. He reports that he continues to suffer from lingering aftereffects from COVID-19 and has yet to fully recover. See Dkt. 614 at 9. It is consistent with this Court's precedent to find that absent a specific showing that the defendant themselves remains susceptible to reinfection, a previous diagnosis of COVID-19 cuts against a finding of extraordinary and compelling reasons. However, Sandoval has made a specific showing that he still remains susceptible to reinfection. Robert Rakita, M.D., is a Clinical Professor of Medicine at the University of Washington, subspecializing in solid organ transplant infectious disease, and provides an expert opinion relating to Sandoval's likelihood of reinfection. Dkt. 605-3. Although much is still unknown about the risk of reinfection from COVID-19, research has been conducted as to how immunosuppressed patients develop antibodies to fight COVID-19. Dr. Rakita opines:

In studies so far, significantly fewer immunosuppressed patients developed antibodies to SARS-CoV-2, [i.e., COVID-19,] compared to the general population. While about 95% of the overall population develops SARS-CoV-2 antibodies, 30–35% of people taking immunosuppressive medications, including organ transplant recipients, do not develop those antibodies. This suggests that the risk of reinfection is likely to be higher in these patients, such as Mr. Sandoval.

Id. at 7–8. Additionally, Dr. Rakita explains that, while Sandoval has received his first dose of the Moderna COVID-19 vaccine, the efficacy of the vaccine in various sub-populations, such as immunosuppressed individuals, is still unknown. Id. at 10–11. Other vaccines, such as the influenza vaccine and the hepatitis B vaccine, have a dramatically decreased response in immunocompromised patients. Id. Sandoval has, through case-specific experts, made a showing that he has a different reinfection risk than the general population and that he remains susceptible to reinfection. The Government, additionally, provides no specific rebuttal to Sandoval's experts and arguments.”

Death Watch: The BOP reports no new COVID-related fatalities. Inmate fatalities remain at 222. Four of these inmates died while on home confinement. BOP staff fatalities remain at 4.

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