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December 7, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 254 (up from 210) Currently positive-testing staff: 220 (up from 207) Recovered inmates: 41,921 (down from 41,949) Recovered staff: 8,569 (up from 8,566)


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

Waseca FCI: 125 (up from 84)

Pollock FCI: 28 (up from 26)

Alderson FPC: 10 (unchanged)

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

Carswell FMC: 14 (up from 13)

McKean FCI: 13 (unchanged)

Rochester FMC: 9

System-wide testing results: Presently, BOP has 134,466 federal inmates in BOP-managed institutions and 14,897 in community-based facilities. Today's stats: Completed tests: 126,269 (up from 126,228) Positive tests: 41,777 (up from 41,759)


Total vaccine doses administered: 263,492 (up from 262,650)


Case Note: Exhaustion of compassionate release application is not a jurisdictional requirement, but rather is a claim processing rule, but government's proper invocation of exhaustion rule mandates dismissal of non-exhausted motion...


In U.S. v. CORRY PURIFY, Defendant - Appellant., No. 20-5075, 2021 WL 5758294 (10th Cir. Dec. 3, 2021) (unpublished) (per curium), the court found that dismissal of a compassionate release motion for lack of jurisdiction, citing failure to exhaust administrative remedies, was error, but harmless, explaining: "Framing our analysis, we are constrained at the outset to recognize that, under current law, the district court erred in dismissing Mr. Purify's motion sua sponte on exhaustion grounds under the rationale that it lacked jurisdiction. Our caselaw published subsequent to the court's order here establishes that a failure to exhaust in the § 3582(c)(1)(A) context is not a jurisdictional matter. See United States v. Hemmelgarn, 15 F.4th 1027, 1030–31 (10th Cir. 2021) (holding—consistent with our sister circuits—that, as a matter of first impression, § 3582(c)(1)(A)’s exhaustion requirement establishes solely a “claim-processing rule,” rather than a jurisdictional rule). … Moreover, though the effect is not jurisdictional, we cannot overlook Mr. Purify's failure to exhaust his administrative remedies. That is because “§ 3582(c)(1)(A)’s exhaustion requirements” establish “a mandatory claim-processing rule.” Hemmelgarn, 15 F.4th at 1030. The government may forfeit or waive enforcement of such a rule. … But the government here has not done so; it has preserved its exhaustion challenge. Specifically, the government has argued forcefully that Mr. Purify failed to exhaust his remedies under § 3582(c)(1)(A). See, e.g., Aplee.’s Resp. Br. at 13 (contending that “the district court ... did not err in dismissing Purify's motion for failure to exhaust his remedies”). And it has done so at its first opportunity—that is, during this appeal. Because we agree with the government, we must enforce § 3582(c)(1)(A)’s exhaustion requirement—even if the equities weighed in Mr. Purify's favor (which they do not). Therefore, the district court's error—in concluding that the exhaustion question under § 3582(c)(1)(A) is jurisdictional—was harmless. … But even if that were not enough (but it is), this jurisdiction-related error would be harmless for a second reason: the district court did not abuse its discretion in determining—in its alternative holding on the merits—that Mr. Purify did not warrant compassionate release.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified two previously tallied inmate fatalities: Douglas L. Beatty, 77. of FCI Seagoville, and Daniel Spear, 55, of FCI Terminal Island. The BOP had identified no additional inmate fatalities and the total therefore remains at 271. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.


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