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February 10, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG




Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 78 BOP facilities and 12 RRCs

Currently positive-testing inmates: 154 (up from 125) Currently positive-testing staff: 125 (up from 122) Recovered inmates currently in the BOP: 46,188 (down from 46,227) Recovered staff: 15,051 (unchanged)


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

Montgomery FPC: 14 (up from 13)

Fort Dix FCI: 13 (up from 8)

Marianna FCI: 10


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

Three Rivers FCI: 7 (unchanged)

Carswell FMC: 5 (unchanged)

Devens FMC: 5


System-wide testing results: Presently, BOP has 145,502 federal inmates in BOP-managed institutions and 13,110 in community-based facilities. Today's stats: Completed tests: 128,649 (up from 128,648) Positive tests: 55,297 (up from 55,296)


Total vaccine doses administered: 347,512 (up from 347,434)


Case Note: Gov. Opposes release, Probation consents; tie goes to Probation...


In U.S. v. Derneval Rodnell Dimmer, No. 3:12-CR-00035-TMB-1, 2023 WL 1766294 (D. Alaska Feb. 3, 2023) (Burgess, J.), the Government opposes, USPO consents, and court agrees with latter, as well as defendant’s expert, that BOP is providing neglectful medical treatment for defendant’s colon cancer, warranting immediate release, explaining: "The Government opposes the Motions, while USPO supports the Motions. … On January 14, 2013, Dimmer pleaded guilty to Conspiracy to Distribute Controlled Substances (Dimmer II) and Drug Trafficking Conspiracy (Dimmer I).The Court sentenced Dimmer to two concurrent 228-month terms of imprisonment followed by ten years of supervised release. Dimmer is currently detained at the Federal Correctional Institution in Florence, Colorado (“FCI Florence”) and has a release date of October 13, 2028. … After reviewing the parties’ briefing on the matter, the Court scheduled a motion hearing for February 2, 2023. … At the hearing, Family Nurse Practitioner (“FNP”) Seana Maltezo testified regarding Dimmer's medical care while in BOP custody. Phillip Wise, a former Assistant Director of the BOP, also testified regarding BOP health care policy and the processes at BOP facilities. … The Government states that there are three reasons why Dimmer fails to demonstrate “extraordinary and compelling” reasons to warrant a sentence reduction. First, the Government asserts that BOP “is aware of [Dimmer's] condition and is actively attempting to provide him with appropriate treatment” and that even if BOP's track record is “underwhelming ... as a general matter, ... there is no basis to think that Dimmer himself is not receiving an appropriate course of treatment.”Second, the Government contends that Dimmer “has not explained why the BOP-provided surgery would have been inadequate, or why seeking treatment at his preferred treatment provider in Washington would offer a better prognosis.” The Government asserts that “to the extent that Dimmer's current institution was truly unable to provide him with adequate care, he had the option to request a redesignation and transfer to a different facility—a process he expressly declined to use.” … In his supplemental briefing, Dimmer asserts that BOP “failed to diagnose and treat [Dimmer's] cancer, resulting in deterioration of [his] health that now requires medical intervention.” Dimmer attributes this delay to the serious staffing shortages at FCI Florence, asserting that Dimmer's case is “yet another horrifying example of how inmates pay the price for BOP's management failures.” … After review of the Motions, Dimmer's medical records, and the testimony offered at the hearing on February 2, 2023, and in recognition of the exigency of Dimmer's stage 3 cancer diagnosis, the Court concludes that Dimmer has demonstrated “extraordinary and compelling reasons” to justify his release. The Court provides three bases for this determination. First, it appears that Dimmer is likely to suffer further delays of treatment if he remains in BOP custody. Dimmer's medical records demonstrate that Dimmer met with a BOP physician on June 3, 2022, and the physician noted that he complained of symptoms that may indicate colon cancer. A month and a half later, on July 26, 2022, Dimmer received a positive result in a Fecal Occult Blood test and the medical provider wrote that Dimmer “[m]ay need [a] colonoscopy.” Almost five months after this initial consult and three months after this positive test, Dimmer underwent a colonoscopy on November 8, 2022. Although all the parties agree that Dimmer's stage 3 colon cancer treatment is extremely time-sensitive, none are able to explain the lengthy delay in care between Dimmer's June appointment and his November colonoscopy. At the hearing, FNP Maltezo was similarly unable to explain this delay, but stated that when she began working with BOP in September 2022 only “one nurse practitioner and one physician” were there to manage “a lot of inmates.” The Court is troubled by a delay of approximately six months from the onset of Dimmer's symptoms to his colonoscopy and subsequent late-stage cancer diagnosis. … In addition to this past delay, the Court is concerned that similar delays may occur in the future. FNP Maltezo and Wise both testified that Dimmer's future cancer treatment under BOP care may take two different forms, through: (1) treatment at FCI Florence, involving outsourced care at area medical facilities, or (2) transfer to Federal Medical Center Butner (“FMC Butner”) for centralized treatment. FNP Maltezo clarified that a transfer to FMC Butner was “not guaranteed to happen immediately” due to multi-layered BOP procedure inherent to prisoner medical transfers. Considering the unexplained delay from June to November 2022, the probability for delay in future BOP medical care, and the urgency of stage 3 colon cancer, the Court is concerned that neither FCI Florence nor FMC Butner is an adequate setting for Dimmer's treatment. Second, the Court recognizes that congregate settings, such as correctional institutions, increase the likelihood of disease and injury for immunocompromised inmates, such as those going through chemotherapy. … Third, the Court finds that Dimmer's proposed release plan is appropriate in light of his diagnosis. After a virtual home inspection, USPO determined that Dimmer's brother's residence was suitable and that his brother was available to help with Dimmer's long-term medical needs. In addition, although Dimmer has not yet established care with a private oncologist or surgeon, he has demonstrated that he has private insurance coverage, a private primary care physician, and has identified a specific oncologist available within his insurance network. … The Court also finds the factors set forth in 18 U.S.C. § 3553(a) weigh in favor of compassionate release in this case. … While drug conspiracy is a serious offense, Dimmer's demonstrated commitment to personal growth and education while incarcerated, along with the time he has already served, satisfy the sentencing goals in this case. Further, the Government relies only on Dimmer's past criminal history to argue that he cannot be safely released. This argument ignores the substantial work Dimmer has done while incarcerated over the past decade to better himself and address his substance use disorder. Acknowledging the seriousness of Dimmer's criminal history, the Court finds that Dimmer's demonstrated rehabilitation efforts, coupled with his urgent need for cancer treatment, outweigh any suggested risk presented by his past criminal record.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced no new COVID-related deaths, leaving the total number of inmate COVID-related deaths at 312. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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