Denise Parisi, RPR, CRR

1
1 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
2 - - - - - - - - - - - - - - - X
:
3 MARQUIS COLLIER, et al., : 20-CV-02183(BMC)
:
4 Petitioners, :
:
5 : United States Courthouse
-against- : Brooklyn, New York
6 :
:
7 : May 18, 2020
RALPH SOZIO, et al., : 10:00 a.m.
8 :
Respondents. :
9 :
- - - - - - - - - - - - - - - X
10
TRANSCRIPT OF CIVIL CAUSE FOR TELEPHONE CONFERENCE
11 BEFORE THE HONORABLE BRIAN M. COGAN
UNITED STATES DISTRICT JUDGE
12
A P P E A R A N C E S:
13
For the Petitioners: SULLIVAN & CROMWELL LLP
14 125 Broad Street
New York, NY 10004
15
BY: ANN-ELIZABETH OSTRAGER, ESQ.
16
For Respondents Sozio UNITED STATES ATTORNEYS OFFICE
17 and Mullee: 271 Cadman Plaza East
Brooklyn, New York 11201
18
BY: FARZIN FRANKLIN AMANAT, ESQ.
19
For Respondents GEO LAWRENCE, WORDEN, RAINIS & BARD, PC
20 and Zerillo: 175 Pinelawn Road, Suite 308
Melville, New York 11747
21
BY: MARY BETH REILLY, ESQ.
22
Court Reporter: DENISE PARISI, RPR, CRR
23 Official Court Reporter
Telephone: (718) 613-2605
24 E-mail: DeniseParisi72@gmail.com
25 P r o c e e d i n g s r e c o r d ed b y c o m p u t e r i z e d s t e n o g r a p h y. Transcript
p r o d u c e d b y C o m p u t e r- a i d e d T r a n s c r i p t i o n.
Denise Parisi, RPR, CRR

Official Court Reporter
2
1 (All present via teleconference.)
2 THE COURT: This is Collier, et al., against Sozio,
3 et al., 20-CV-2183.
4 Now, when I take appearances, I only want to hear
5 from the people who are going to be speaking on the call. I
6 recognize there may be nonparties who are interested also on
7 the call. Anyone who is not going to be speaking, please mute
8 your call so we don't have an incident like they had in the
9 Supreme Court a couple of weeks ago.
10 Let me hear who I have speaking for the plaintiff.
11 MS. OSTRAGER: Good morning, Your Honor.
12 This is Ann-Elizabeth Ostrager from Sullivan &
13 Cromwell.
14 THE COURT: Does anyone else expect to speak for the
15 plaintiffs? Is there anyone else who is appearing for the
16 plaintiff and expects to speak on this call?
17 (Pause.)
18 THE COURT: Okay.
19 For the defendants, who is going to be the
20 spokesperson?
21 MR. AMANAT: Good morning, Your Honor.
22 This is Frank Amanat from the U.S. Attorney's Office
23 in the Eastern District of New York. We are here solely on
24 behalf of US Marshal Sozio from the Southern District and
25 acting US Marshal Mullee from the Eastern District -- we do

3
1 not represent the GEO defendants -- and I'm here with my
2 colleague, Vincent Lipari, L-I-P-A-R-I, and Layaliza
3 Soloveichik, S-O-L-O-V-E-I-C-H-I-K. I will be principally
4 speaking for the Government, but my colleagues -- I may invite
5 my colleagues to chime in on specific issues that may arise.
6 THE COURT: All right.
7 And who is here for GEO and Zerillo?
8 MS. REILLY: Good morning, Your Honor.
9 My name is Mary Beth Reilly. I am here on behalf of
10 the GEO Group and William Zerillo, Facility Administrator.
11 THE COURT: Ms. Reilly, are you with a firm?
12 MS. REILLY: Yes. Lawrence, Worden, W-O-R-D-E-N,
13 Rainis, R-A-I-N-I-S, and Bard, B-A-R-D.
14 THE COURT: Okay. You don't have to give me your
15 exact address, but where are you located?
16 MS. REILLY: Melville, New York.
17 THE COURT: Okay. I don't think I should have
18 anyone else announcing their appearances. Like I said, I
19 expect there may be members of the public on the phone. We
20 are going to keep their phones on mute, but if there's anyone
21 else who is appearing in the case, let me hear from them.
22 (Pause.)
23 THE COURT: Okay. Good.
24 All right. I think the first thing I want to do,
25 because I've read the plaintiffs' papers, but I don't know the

4
1 defendants' responses as to what their defenses are going to
2 be -- I would like to hear some of that -- and I want to hear
3 principally from Ms. Reilly as to what the facility's defenses
4 are going to be to this claim.
5 What can you tell me at this early point?
6 MS. REILLY: Your Honor, it is quite an early point.
7 We just were contacted on late Friday afternoon by the GEO
8 Group's commercial general liability policy, so we have not
9 had the opportunity to speak to the GEO Group or William
10 Zerillo, although we do understand that they have provided the
11 Eastern District with a detailed response that the Court --
12 pursuant to the administrative order of Judge Mauskopf, and
13 they have -- are providing biweekly reports just to address
14 the concerns that the petitioners have in this case. You
15 know, honestly, I have not had the opportunity to speak with
16 the GEO Group or Mr. Zerillo since this -- up until late
17 Friday in the evening, and I apologize for that, but they have
18 been compliant with the administrative order, and, you know, I
19 wish I had additional information for you.
20 THE COURT: All right. Well, that's unfortunate
21 because one of the reasons I've scheduled this for today was
22 so that GEO and Zerillo can get their act together prior to
23 the call that we're having now, but that is the way that it
24 is, so we will leave it at that.
25 Mr. Amanat, what do you have to say for the

5
1 marshals?
2 MR. AMANAT: Yes. Good morning, Your Honor. Thank
3 you.
4 We have worked hard over the weekend to try to get
5 up to speed on the case -- petitioners responded with a lot of
6 paper, and we've been getting up to speed, but we haven't had
7 a chance to have conversations with our clients.
8 So I have a few preliminary thoughts to author.
9 First, this is not a habeas case which challenges
10 the fact of duration of confinement. It is a habeas case
11 which goes towards the conditions of confinement. As such,
12 that has a couple of consequences here. The marshal service
13 does not have day-to-day management of the facility, which is
14 operated pursuant to a contract. It oversees the contract, it
15 manages the contract, but it does not have day-to-day
16 responsibility for the conditions of confinement that take
17 place in the facility, that is GEO's responsibility, and GEO's
18 responsibility is to respond to the allegations that the
19 petitioners have put forward.
20 You know, the marshals, you know, are, of course,
21 concerned with whether GEO's fulfilling its obligations under
22 the contract, and that's a process that -- it's an ongoing
23 process that it -- it handles through an oversight function,
24 but the marshal's primary function is to fulfill the -- is to
25 comply with the mandate of the -- of the judges presiding over

6
1 the respective cases of the detained individuals to detain
2 them, and the marshals cannot, for example, release a detainee
3 unless they're directed to do so by the -- by the presiding
4 criminal judge; and the process for detainees to seek such
5 relief is to apply for bail under the Bail Reform Act, and two
6 of these main petitioners have done so and were denied.
7 Others, like the elite plaintiff, Mr. Collier, have not even
8 applied for bail in his case, nor is it likely that bail would
9 be granted -- he's an extremely violent individual who's
10 accused of having murdered a 13-year-old girl as part of a
11 gang war -- and it's highly unlikely that the judge in this
12 case would ever grant bail. But the proper recourse, you
13 know, is if they challenge the facts or duration of their
14 confinement or if they want bail is to apply to their
15 respective district judges supervising their criminal -- their
16 pending criminal cases, and what they -- here it's doing an
17 end run in trying to call this a habeas case when really it's
18 a conditions-of-confinement case, and to the extent it's a
19 conditions-of-confinement case, the marshals are arguably not
20 even the proper defendant here because the responsibility for
21 the day-to-day conditions of confinement in the facility
22 belongs to GEO, not to the marshals.
23 THE COURT: Mr. Amanat, let me interrupt you for
24 just a second.
25 First of all, I believe that the 2241 is an

7
1 appropriate remedy to address conditions of confinement. It's
2 a separate point as to whether it's necessary for me to award
3 such relief when, at least pretrial detainees, have bail
4 applications available to them. But one thing I did not pick
5 up from the plaintiffs' papers -- and I want to ask
6 Ms. Ostrager about this -- is out of your plaintiffs, who is a
7 pretrial detainee, and who is a post-conviction detainee,
8 because it matters.
9 MS. OSTRAGER: Yes, Your Honor. This is
10 Ann-Elizabeth Ostrager.
11 So, first, I agree with Your Honor, this is an
12 appropriate vehicle here, and the fact that -- you know,
13 relief under the Bail Act, it does not affect the conditions
14 at GEO, I believe, on individual bail determinations --
15 (Court reporter requests clarification.)
16 THE COURT: Ms. Ostrager, you are not speaking
17 clearly; the court reporter is not getting you. Again.
18 MS. OSTRAGER: I apologize, Your Honor. Can you
19 hear me now?
20 THE COURT: Speak slowly and a little more loudly.
21 MS. OSTRAGER: Yes, Your Honor. Is that better?
22 THE COURT: Yes.
23 MS. OSTRAGER: Okay. I was saying that I agree with
24 Your Honor that the habeas petition that was filed is an
25 appropriate vehicle here. The bail statute does not address

8
1 the conditions at GEO --
2 THE COURT: Okay. Ms. Ostrager, let me interrupt
3 you.
4 MS. OSTRAGER: Yes.
5 THE COURT: First, you don't need to tell me whether
6 you agree with me or not, because it doesn't really matter
7 much to me.
8 Secondly, I did not say that bail is an
9 inappropriate way to address these problems. Clearly, if
10 someone comes up for bail and says it's a constitutional
11 violation to put me in this facility, that is something, as
12 someone who grants and denies a lot of bail, that I will
13 definitely take into account. So there is another remedy
14 available, at least as to pretrial detainees.
15 Now, all I'm asking you to tell me is which of your
16 people are pretrial and which of them are post conviction.
17 MS. OSTRAGER: Yes, Your Honor.
18 One petitioner is pretrial, and the rest remaining
19 three are post conviction.
20 THE COURT: Who is the pretrial?
21 MS. OSTRAGER: Mr. Collier.
22 THE COURT: Has he made a bail application?
23 Ms. Ostrager, has he made a bail application?
24 MS. OSTRAGER: Um --
25 THE COURT: You don't know.

9
1 MR. AMANAT: I can answer that, Your Honor.
2 Mr. Amanat.
3 Mr. Collier has not made a bail application. We
4 have confirmed that with the prosecutors in the Southern
5 District who are prosecuting him. Our understanding is John
6 Doe Number 2 is also a pretrial inmate -- a pretrial detainee
7 in a case out of the Middle District of Pennsylvania. He too
8 is a pretrial detainee. John Doe Number 1 is a -- has pleaded
9 guilty and is awaiting sentencing, but during -- as he states
10 in his own -- as he states in his own declaration, he applied
11 for bail and was denied just a month ago.
12 THE COURT: Okay.
13 MR. AMANAT: I do have to clarify. I wasn't
14 suggesting, Your Honor, that a 2241 relief is not
15 appropriate -- cannot appropriately be based on a
16 conditions-of-confinement claim --
17 THE COURT: Mr. Amanat?
18 MR. AMANAT: Yeah? Yeah?
19 THE COURT: I know that. That's why I didn't let
20 Ms. Ostrager tell me that she's agreeing with me because I
21 understand you're saying that 2241 is available to address
22 conditions if the conditions are unconstitutional, but you are
23 also saying that there are alternative remedies that might be
24 more effective on an individual basis.
25 Have I got your position?

10
1 MR. AMANAT: That's part of it, but I was also
2 saying that here, if the habeas petition is based on
3 conditions of confinement, the proper respondent to that
4 habeas petition is not the marshals, but GEO --
5 THE COURT: I've got that. I've got that.
6 Mr. Amanat, I've got that.
7 MR. AMANAT: Okay. Great. Thank you.
8 THE COURT: Let me ask Ms. Ostrager, what's the
9 legal theory that makes the marshals responsible? Or are they
10 just a necessary party because if I order release they've got
11 to execute the order?
12 MS. OSTRAGER: I think, Your Honor, that it is both,
13 and more often that it may be both depending on the terms of
14 the contract that the marshals have entered with BOP, which,
15 as far as I'm aware, is not publicly available, but to the
16 extent the Government has put inside that they --
17 (teleconference interruption) -- bearing out in terms of the
18 facilities under the contract, I think that they are obligated
19 to that and at least know the terms of that contract so then
20 there is actually some responsibility in making sure that that
21 is happening.
23 THE COURT: Okay. You understand, Ms. Ostrager,
24 that to sue the marshals, you can't hope there's a good faith
25 basis for it, you need to have a reasonable basis for

11
1 concluding that they are responsible and proper defendants in
2 this case. So if you are telling me, well, maybe they should
3 be here depending on what happens when I see the contract, I'm
4 not sure you have a good faith basis to sue them.
5 MS. OSTRAGER: Well, the inmates are in US Marshal's
6 custody, Your Honor, so that's a good faith basis for them to
7 be included here, and that they are responsible for the
8 ultimate conditions and GEO is a --
10 MS. OSTRAGER: We believe we do have a good faith
11 basis for the suit against the marshals because these inmates
12 are in the custody of the United States Marshals Service, not
13 BOP custody; and, therefore, they are ultimately responsible
14 for the treatment of these inmates, and it is deemed as a
15 private entity operating under contract with the Government.
16 THE COURT: Okay. All right. Here's the way
17 forward that I see.
18 First of all, I'm disinclined to grant a temporary
19 restraining order for a lot of reasons that I will go through,
20 but I am inclined to have an expedited discovery schedule and
21 then consolidate the preliminary injunction hearing with the
22 trial on the merits of the 2241. If there are legal defenses
23 going forward as to some of these inmates, I can hear those
24 before we have the hearing on that.
25 I will say this: First, I am not impressed by the

12
1 plaintiffs' argument that the facility only says 37 out of 38
2 have recovered, because, in fact, if they're not showing
3 symptoms -- and that's what it means -- you can test them
4 today, they would be negative; you can test them tomorrow to
5 be positive -- we are not in a position to do daily testing in
6 facilities where federal prisoners are housed.
7 Second, I think anybody would have told me if
8 somebody had died of the virus in this facility -- I assume no
9 one has, so that's not part of the papers -- and I am not
10 equating the mere exposure or even the contracting of the
11 virus to an Eighth Amendment violation.
12 Now, I agree that the facility needs to take
13 reasonable measures now that it's on notice of the Eighth
14 Amendment claims, and it has to demonstrate to me -- which I
15 was hoping Ms. Reilly would do this morning, but I'm going to
16 set a short date for her to do it and catch up -- but, you
17 know, in the absence of any notion that there's any real
18 danger here other than contracting the virus when, in fact,
19 the vast majority of people who are impaired or not impaired
20 survive the virus, that does not seem to me the kind of
21 irreparable harm that will occur between the date today and
22 the date that we have a hearing on the 2241 and the
23 preliminary injunction, which I'm hoping to get done in about
24 a month or so.
25 So the fact of the matter is, it may well be that

13
1 other people get exposed, but exposure does not necessarily
2 mean that that's the end of a person's life, nor is there an
3 absolute obligation on the part of the facility, especially
4 when developments are happening so fast, to ensure lack of
5 contagiousness. There may be -- and that's what I'd like to
6 determine at the hearing -- an obligation to do more than is
7 being done, but I cannot make that determination now, so I'm
8 not going to.
9 So let's talk about a schedule for hearing this
10 case. What I would like to do, I want Ms. Reilly's papers in
11 opposition -- and I think the Government's papers in
12 opposition as well -- in by this Friday. Once those are in, I
13 want to allow a two-week period for discovery.
14 Now, I know a couple of things about that. First of
15 all, I don't have to allow discovery. You know, the habeas
16 rules say that whatever portion of the federal rules I want to
17 apply, I can apply, but I think discovery here will be
18 helpful, because I've got to know what's going on both with
19 these prisoners and inside the facility.
20 And, second, for the same reason, I don't have to
21 even entertain a Rule 65 motion because the Rules of Civil
22 Procedure are not strictly applicable. And, I will tell you,
23 in most cases, what we do is simply accelerate the 2241. Here
24 I'm going to combine -- consolidate -- the motion for a
25 preliminary injunction with the 2241, and I want to hear it

14
1 about four weeks from now after the parties have had a couple
2 of weeks to do, what I anticipate will be, very intense
3 discovery.
4 I will say, I expect the parties to be circumscribed
5 in the discovery that they seek. For example, with a proper
6 protective order, Ms. Ostrager can get a copy of the contract
7 between the marshal service and GEO. That's one thing I don't
8 want to have any fights about. I also want complete discovery
9 as to what the facility is doing about this virus. I expect
10 we are going to get a lot of that in the papers next Friday,
11 but to the extent the plaintiffs want to follow up on that and
12 test it, they have a couple weeks of discovery to do that.
13 Please don't go nuts with the discovery. We are in an
14 expedited discovery phase, and I want to get those done. I'm
15 certainly not inclined to, at this point, appoint a special
16 master to run the prison, nor am I inclined to run the prison
17 myself. That is a very radical test that would require a very
18 strong showing of an Eighth Amendment violation, and I don't
19 see that, at this point, in the plaintiff's case, so let's get
20 some dates.
21 Friday will be the date for the defendants' papers
22 to be put in. Then I expect the parties to work out this
23 week, even before then, their own discovery schedule due to
24 entail over the next two weeks after that, and then that would
25 leave us with the need for a hearing, which if live witnesses

15
1 have to be called, we are going to have to do either a live
2 hearing or a video hearing, depending on what the situation is
3 in the real world.
4 So let's talk about the week of June 15th for a
5 hearing. We can probably do that either live or by video on
6 Wednesday, June 17th at two o'clock p.m. You will all confer
7 and decide whether that should be done live or by video,
8 depending on what our situation is. I have a feeling it will
9 be done by video, but we'll see.
10 Who has questions?
11 Ms. Ostrager, anything?
12 (Pause.)
13 THE COURT: Mr. Amanat, anything?
14 MS. OSTRAGER: No, I don't have any questions, Your
15 Honor, but if you would, and I understand Your Honor's ruling,
16 I just wanted to say that being -- having to endure this
17 increased risk of illness, and death has been held -- so if
18 that's where we are, and while it's -- I believe Your Honor
19 said that he has no information that anyone has died at BOP
20 from this. We do know that that happened at a GEO-operated
21 facility in Florida and that it was concealed for days, so I
22 do think that there is -- that we, if possible, proceed on the
23 schedule that Your Honor has --
24 THE COURT: I don't want to get into an argument
25 with you, but I will say there are people -- lots of people --

16
1 who are also dying outside, but both in prison and in society,
2 the vast majority survive as 37 of the 38 up here to have done
3 here. You know, I understand GEO doesn't have a follow-up
4 test to confirm that the 37 of the 38 who tested positive are
5 fully recovered. On the other hand, I don't think there's any
6 dispute that they're asymptomatic, as most people are, when
7 they contract this disease. That does not seem to me like the
8 kind of irreparable harm that requires the turning loose of
9 people who may have committed very serious crimes against
10 society.
11 I invite all four of the plaintiffs, to the extent
12 they have the opportunity, to make a bail application, you
13 know, pending trial or pending appeal. They should make that
14 application. It is inconceivable to me that I or any other
15 judge would not take into account the Eighth Amendment
16 consideration of keeping them in custody in the context of
17 such an application. We do that all the time.
18 Anything from you, Mr. Amanat?
19 MR. AMANAT: Yes. Thank you, Your Honor.
20 Is there any way that we could have until next
21 Tuesday, the 26th, rather than this Friday to submit our --
22 the defense papers?
23 THE COURT: When do you want until?
24 MR. AMANAT: Until next Tuesday, the 26th, instead
25 of this Friday, the 22nd.

17
1 THE COURT: I think that's a little long because I
2 think, you know, the parties aren't going to be able to
3 determine what discovery they need until they see the
4 defendants' opposition. At least the plaintiff is not going
5 to be able to determine it -- which allegations that the
6 defendants are going to make that the plaintiffs want to
7 contest. I will give you the weekend. If you want to file by
8 noon on Monday, that's fine, the 25th.
9 MR. AMANAT: Okay. Monday is a holiday, which is
10 why I was thinking Tuesday.
11 THE COURT: Is it a holiday for you, Mr. Amanat?
12 MR. AMANAT: It's Memorial Day. Yes, Your Honor.
13 It's a holiday for everybody, isn't it?
14 THE COURT: Okay. Well, I think some of us may have
15 to work on Memorial Day. Yes, it's technically a holiday, but
16 we are all, after all, lawyers and judges.
17 MR. AMANAT: Okay.
18 And, secondly, I already have a court appearance
19 scheduled 2:30 on the 17th of June in front of another judge
20 in our court, and I also have a preliminary injunction hearing
21 in front of Your Honor the day before on the 16th in another
22 matter --
23 THE COURT: What matter is that? What matter is
24 that?
25 MR. AMANAT: That's the field matter. It's a field

18
1 matter. I can't say it -- Your Honor has placed that case
2 under seal.
3 THE COURT: Okay. I see it. Okay.
4 MR. AMANAT: So I have two PI hearings at the same
5 time, so if we can maybe do the 18th, that would be great.
6 THE COURT: 18th, 2:15 p.m.
7 Okay? Anything from you, Ms. Reilly?
8 MS. REILLY: No, Judge. I appreciate what you said
9 and I just want to confirm that our papers, the latest, will
10 be noon Monday, May 25th, and I hope to have much more
11 information for you.
12 THE COURT: Okay.
13 Ms. Reilly, I will emphasize, I'm a little
14 disappointed that your clients did not meet with you over the
15 weekend and have a robust thing to say on this, so I expect
16 your papers to make up for that.
17 MS. REILLY: Your Honor, if I may, it was my
18 unavailability; I was out of town. It was my unavailability,
19 so please take that into consideration. It was not my client.
20 THE COURT: I think your client has to take that
21 into consideration, not me. In any event, as I say, I am sure
22 your response that's coming next Monday will be --
23 MS. REILLY: Thank you, Your Honor.
24 THE COURT: Okay.
25 Anything else?

19
1 MR. AMANAT: Yes, one final matter, Your Honor.
2 I see on the docket sheet that the petitioners filed
3 on May 13th at Docket Number 7 a notice of related case. I'm
4 assuming from Your Honor's rulings that you rejected that
5 related case designation that they made? We don't think it's
6 appropriate to relate this case to the Chunn case, so --
7 THE COURT: Mr. Amanat, stop.
8 First of all, it's up to the lower numbered judge to
9 decide whether to assume control of the higher numbered case.
10 Nevertheless, Judge Kovner has spoken to me and we have both
11 agreed that the cases are not related because the facts of
12 what's going on at the facilities will be different, and the
13 facility under consideration here is not strictly run by the
14 BOP, so we have decided there will be no consolidation.
15 MR. AMANAT: Understood.
16 Would Your Honor mind telling me again the name of
17 the court reporter? I didn't catch it at the beginning.
18 THE COURT: Yes. Hang on one second.
19 THE COURT REPORTER: Denise Parisi.
20 THE COURT: Thank you, Denise.
21 MR. AMANAT: Thank you, Denise. I appreciate it. I
22 thought I recognized your voice, but I couldn't be certain.
23 THE COURT: Anything further?
24 Okay. Thank you very much. We'll be in touch soon.
25 MR. AMANAT: Thank you.

20
1 MS. REILLY: Thank you.
2 MS. OSTRAGER: Thank you, Your Honor.
3 (Matter concluded.)
5 * * * * *
7 I certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter.
8
9 /s/ Denise Parisi May 18, 2020

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10 DENISE PARISI DATE
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1 UNITED STATES DISTRICT COURT