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BOP COVID-19 UPDATE -- June 17, 2021

Quick Facts: Currently positive-testing inmates: 88 (down from 93) Currently positive-testing staff: 128 (up from 125) Recovered inmates: 44,643 (down from 44,719) Recovered staff: 6,869 (unchanged) Institutions with the largest number of currently positive-testing inmates:

Coleman II USP: 23 (up from 17)

Bennettsville FCI: 12 (unchanged)

Sheridan FCI: 9 (down from 25)

Institutions with the largest number of currently positive-testing staff: Pekin FCI: 9 (unchanged)

Big Sandy USP: 6 (unchanged) Central Office HQ: 6 (unchanged) System-wide testing results: Presently, BOP has 129,426 federal inmates in BOP-managed institutions and 13,934 in community-based facilities. Today's stats: Completed tests: 115,195 (down from 115,329) Positive tests: 44,108 (down from 44,184)

Case Note: Court accepts defendant's handwritten log as establishing exhaustion of administrative remedies; rejects government's argument that sexual abuse in non-BOP facilities cannot support finding of extraordinary and compelling circumstances...

In U.S. v. VINCENT BROCOLI, a/k/a Vince, a/k/a Matthew Dehart, a/k/a Bunch Media, a/k/a Bunch Mktg., 2021 WL 2414863 (S.D. Ohio June 14, 2021) (Marbley, CJ), the court granted compassionate release after addressing two interesting issues, the first concerning whether a handwritten log suffices to establish exhaustion and the second concerning the Government’s argument that sexual abuse defendant suffered in non-BOP facilities cannot be considered extraordinary and compelling circumstances supporting relief, explaining: "Mr. Brocoli does not have access to a printer and was therefore unable to print these requests to support his motion, but he did include a handwritten log of his efforts as an exhibit. The Government contends that Mr. Brocoli's handwritten record of his attempts is insufficient to confirm his efforts. The Government explains that it contacted the BOP to determine the status of Mr. Brocoli's requests, but that it “has as yet received no answer that confirms [Mr. Brocoli's] attempts to exhaust his administrative remedies.” (ECF No. 60 at 2). The BOP's failure to respond to the Government, however, does not harm Mr. Brocoli's position; if anything, it strengthens it. Furthermore, the Court has no reason to doubt Mr. Brocoli's detailed account of his efforts to request compassionate release from the Warden at UPS Yazoo City. … With respect to Mr. Brocoli's attempted rape in January 2021, the Government argues that it “did not occur in a BOP facility” and therefore “should not weigh in favor of [Mr. Brocoli's] early release.” Contrary to the Government's position, this Court finds that the circumstances surrounding Mr. Brocoli's incarceration are indeed extraordinary and compelling. Here, the BOP has transferred Mr. Brocoli five times since September 2019, and he will be transferred at least one more time before he reaches his permanent place of incarceration. Two the facilities to which he has been transferred are state institutions that the BOP uses as holding facilities, and he remained at each for six weeks or less. At one of these state institutions, Mr. Brocoli was subjected to an attempted rape. Afterward, he received an evaluation by a psychiatrist who described the importance of his receiving mental health services. Despite this report, Mr. Brocoli appears to have received only two counseling sessions while at Cimarron, on December 3 and December 30, 2020; his prison medical records indicate that he has not received any further counseling services at the two institutions to which he has been transferred since he left Cimarron in January 2021. Put differently, although Mr. Brocoli was investigated, charged, and sentenced in the federal system, he has nevertheless been detained in state-level institutions for a significant portion of his incarceration. During his incarceration in these state institutions, he reports having been severely abused and victimized. The trauma of these experiences is intensified by the sexual abuse he suffered as a child. Mr. Brocoli explained that his “mind cannot tolerate being touched,” that he has been repeatedly “grabbed” and assaulted while incarcerated, and that he “cannot endure any further.” (ECF No. 51). Despite this unfortunate set of circumstances, the BOP has not offered Mr. Brocoli a consistent environment nor the mental health services he needs. For these reasons, the Court finds that Mr. Brocoli has demonstrated extraordinary and compelling reasons that could justify his release.”

Death Watch: The BOP has identified yesterday's fatality as Sherri Renee Hillman, 54, of FMC Carswell. The inmate death toll remains at 239. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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