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Case Name Nellson v. Barnhart PC-CO-0035
Docket / Court 1:20-cv-00756 ( D. Colo. )
State/Territory Colorado
Case Type(s) Prison Conditions
Special Collection COVID-19 (novel coronavirus)
Case Summary
COVID-19 Summary: Prisoner in the custody of the Federal Bureau of Prisons sought injunctive and declaratory relief after the prison in which he was incarcerated failed to implement COVID-19 testing and other precautionary protocols. Because the plaintiff failed to exhaust administrative remedies ... read more >
COVID-19 Summary: Prisoner in the custody of the Federal Bureau of Prisons sought injunctive and declaratory relief after the prison in which he was incarcerated failed to implement COVID-19 testing and other precautionary protocols. Because the plaintiff failed to exhaust administrative remedies before filing suit, the claim was dismissed.


The COVID-19 outbreak began in late 2019 and grew quickly in the United States in March 2020. The World Health Organization declared a health emergency in January of 2020 and then declared a global pandemic on March 11, 2020. President Donald Trump declared a national emergency on March 13, 2020, and states across the country instituted shut-downs of schools, restaurants, bars, and gyms shortly thereafter. Social distancing, testing, and isolation are key methods of preventing the spread of COVID-19.

On March 18, 2020, the plaintiff, a prisoner in custody at USP Florence in Colorado, filed this class-action lawsuit against the United States Bureau of Prisons (BOP) and the warden of USP Florence in the U.S. District Court for the District of Colorado. The plaintiff filed the suit on behalf of himself and all other prisoners in BOP custody, alleging that the defendants knowingly risked the safety and lives of their wards by failing to implement safety and testing protocols in violation of the plaintiff class’s Eighth Amendment constitutional rights. The plaintiffs sought class certification, declaratory and injunctive relief, and attorneys' fees.

In the complaint, the plaintiffs alleged that, as of the time of filing, the prisoners in USP Florence’s custody were “sitting ducks.” They alleged that the Bureau of Prisons had suspended visits and prisoner movement, but had failed to order COVID-19 testing kits, and that certain facilities within the Bureau of Prisons lacked hand sanitizer and soap for hand washing. The plaintiffs requested that the court issue an injunction, requiring the BOP to test those showing symptoms and to screen for COVID-19 by at least testing for fever daily. They also sought an injunction and declaratory relief declaring that all BOP staff testing positive for COVID-19 be excluded from contact with BOP prisoners

The case was deemed improper for summary judgment and was assigned to Magistrate Judge Nina Y. Wang.

On March 31, 2020, the plaintiffs filed a motion for a temporary restraining order and preliminary injunction. In this new motion, the plaintiffs alleged that the BOP failed to screen inmates or staff members for COVID-19 and that the BOP "is sitting on an infectious powder keg and is doing exactly nothing to prevent it exploding." The plaintiffs requested that the court order the BOP to take action by immediately starting to test and screen incarcerated people and quarantine all those that tested positive. Since the plaintiffs had filed for injunctive relief, the case was reassigned to a District Judge.

On March 31, the case was reassigned to Judge Philip A. Brimmer. The defendants filed their response on April 6, 2020, and the plaintiffs replied on April 13.

On April 16, Judge Brimmer denied the plaintiffs' motion for a temporary restraining order, noting that the plaintiff had failed to exhaust administrative remedies (even though the plaintiff alleged that such remedies would be useless since they could take up to 90 days to complete). 454 F. Supp. 3d 1087. Even if the plaintiffs had not failed to exhaust their administrative remedies, Judge Brimmer found that the temporary restraining order would be moot since the BOP had implemented screening, quarantining, and testing measures. The court did not rule on the motion for a preliminary injunction.

The defendants filed a response to the plaintiffs' motion for preliminary injunction on April 22, reiterating that the plaintiffs failed to exhaust his administrative remedies under the Prison Litigation Reform Act, and that he failed to show irreparable harm and deliberate indifference by the defendants.

On June 4, Judge Brimmer denied the plaintiffs' motion for a preliminary injunction. 2020 WL 3000961. Judge Brimmer found that the plaintiff still had not exhausted his administrative remedies and that he was unlikely to succeed on the merits of his claim because the defendants had implemented mitigation measures. Judge Brimmer then referred the case to Magistrate Judge Nina Y. Wang.

The plaintiffs filed an amended complaint on July 16, 2020, naming only Federal Bureau of Prisons and the Warden in his official capacity as defendants. A little over a week later, the defendants moved to dismiss the amended complaint and moved for summary judgment, contending that the plaintiff still had not exhausted his administrative remedies.

On October 22, 2020, Judge Brimmer granted the defendants motion for summary judgment. 2020 WL 6204275. Judge Brimmer determined that the plaintiff had not filed any administrative grievances before suing the defendants, and therefore failed to exhaust his options before seeking a judicial remedy. The case is now closed.

Elizabeth Helpling - 04/28/2020
Averyn Lee - 05/27/2020
Mary Novakovic - 10/10/2020
Justin Hill - 12/19/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Cruel and Unusual Punishment
Content of Injunction
Preliminary relief denied
COVID-19
Mitigation Denied
Mitigation Requested
Crowding
Crowding / caseload
Defendant-type
Corrections
Jurisdiction-wide
General
Bathing and hygiene
Conditions of confinement
Sanitation / living conditions
Totality of conditions
Medical/Mental Health
Medical care, general
Medical care, unspecified
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Ex Parte Young (Federal) or Bivens
Defendant(s) United States Bureau of Prisons
Warden of USP Florence
Plaintiff Description Prisoners at a Colorado high-security prison without access to COVID-19 testing or screening protocols. The proposed class members are all current and future prisoners in the custody of USP Florence and the BOP during the course of the COVID-19 pandemic.
Class action status sought Yes
Class action status outcome Denied
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief None
Filed 03/18/2020
Case Closing Year 2020
Case Ongoing No
Additional Resources
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Court Docket(s)
D. Colo.
10/22/2020
1:20-cv-00756-NYW
PC-CO-0035-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D. Colo.
03/18/2020
Complaint for Declarative and Injunctive Relief regarding Edward Nellson as an Individual and all Similarly Situated Persons as a Class [ECF# 1]
PC-CO-0035-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
03/31/2020
Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction [ECF# 10]
PC-CO-0035-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
03/31/2020
Minute Order [ECF# 12]
PC-CO-0035-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
04/06/2020
Defendants' Response to Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction [ECF# 17 & 17-1 & 17-2]
PC-CO-0035-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
04/13/2020
Plaintiff's Reply to Defendant's Response [ECF No. 17] to Motion for Temporary Restraining Order and Preliminary Injunction [ECF# 19 & 19-1]
PC-CO-0035-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
04/16/2020
Order [ECF# 23] (454 F.Supp.3d 1087)
PC-CO-0035-0006.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
04/22/2020
Defendants' Response to Plaintiffs' Motion for Preliminary Injunction [ECF# 31 (& 31-1 to 31-3)]
PC-CO-0035-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
05/01/2020
Plaintiffs' Reply to Defendants' Response [ECF No. 31] to Plaintiff's Motion for Preliminary Injunction [ECF# 35 (& 35-1 to 35-3)]
PC-CO-0035-0008.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/04/2020
Order [ECF# 45] (2020 WL 3000961)
PC-CO-0035-0009.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
07/16/2020
First Amended Complaint for Declarative and Injunctive Relief Regarding Edward Nellson as an Individual and all Similarly Situated Persons as a Class [ECF# 56]
PC-CO-0035-0010.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
10/22/2020
Order [ECF# 78]
PC-CO-0035-0011.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Brimmer, Philip A. (D. Colo.) show/hide docs
PC-CO-0035-0006 | PC-CO-0035-0009 | PC-CO-0035-0011 | PC-CO-0035-9000
Wang, Nina Y. Court not on record [Magistrate] show/hide docs
PC-CO-0035-0003 | PC-CO-0035-9000
Plaintiff's Lawyers Carminati, Maria-Vittoria G. (Colorado) show/hide docs
PC-CO-0035-0001 | PC-CO-0035-0002 | PC-CO-0035-0005 | PC-CO-0035-0008 | PC-CO-0035-0010 | PC-CO-0035-9000
Parrott, Alexandra Lee (Colorado) show/hide docs
PC-CO-0035-0001 | PC-CO-0035-0002 | PC-CO-0035-0005 | PC-CO-0035-0008 | PC-CO-0035-0010 | PC-CO-0035-9000
Williams, Mario B (Georgia) show/hide docs
PC-CO-0035-0001 | PC-CO-0035-0002 | PC-CO-0035-0005 | PC-CO-0035-0008 | PC-CO-0035-0010 | PC-CO-0035-9000
Defendant's Lawyers Dickey, Lauren Marie (Colorado) show/hide docs
PC-CO-0035-0004 | PC-CO-0035-0007 | PC-CO-0035-9000
Dunn, Jason R. (Colorado) show/hide docs
PC-CO-0035-0007
Other Lawyers Christenson, David Andrew (Florida) show/hide docs
PC-CO-0035-9000

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