United States v. English

UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL ENGLISH, Defendant.

No. 2:19-CR-20164-TGB-EAS-1

United States District Court, E.D. Michigan, Southern Division

December 22, 2022

ORDER GRANTING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE (ECF NO. 66)

TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE

Defendant Michael English (“English”), an inmate incarcerated at FCI Butner, moves for compassionate release citing his health concerns including hypertension hyperparathyroidism, ischemia, cardiomegaly, and tumors throughout his body. Defendant's Motion for Compassionate Release, ECF No. 66, PageID.467. English contends that these conditions require immediate medical care outside of the federal Bureau of Prisons (“BOP”), which has mismanaged and delayed his access to timely treatment. Defendant's Second Supplemental Update, ECF No. 79 PageID.1658-59. The Government responds that English's proper remedy is to file a separate lawsuit claiming a violation of his Eighth Amendment right against deliberate indifference in the healthcare he is receiving. But for the reasons explained below the Court concludes that compassionate release is warranted. For the reasons that follow, English's motion for compassionate release is GRANTED.

I. BACKGROUND

Since being sentenced by the Court on September 12, 2019, English has filed several requests for compassionate release. ECF No. 24; ECF No. 38; ECF No. 48. On May 23, 2022, English filed his third request for compassionate release with BOP, citing the COVID-19 pandemic and his underlying health conditions. ECF No. 66, PageID.478. The next day, English was notified that he had a “large mass” on his brain, and amended his request to note this time-sensitive medical concern. Id. at PageID.479. The warden denied English's amended request on May 24, 2022, but “only citing the COVID-19 pandemic and not addressing any of English's medical concerns.” Id. at PageID.481; Defendant's Reply in Support of Compassionate Release, ECF No. 71, PageID.720.^[1]

Shortly after, on June 17, 2022, English filed the present motion for compassionate release.^[2] English summarized that between March and May 2022, he was diagnosed with several tumors in his lower back, chest, and on the sphenoid bone behind his eye. ECF No. 66, PageID.470-71. The most concerning tumor, the one behind English's eye, was described as an “irregular mass” that required follow-up from a neurosurgeon. Id. at PageID.471.

As detailed in a report by Dr. Raymond Weitzman, a medical expert retained by English to support his compassionate release motion, the tumor on English's sphenoid bone placed him at risk of sensory loss, blindness, life threatening stroke and paralysis, altered mental state, and death. Weitzman Report (June 9, 2022), ECF No. 66, PageID.484. Moreover, given the uncertainty of the origin or pathology of the mass, Dr. Weitzman advised “immediate and complex medical care that can only be rendered by a team of physicians with experience in treating neoplasms involving the base of the brain and the resultant complications that may arise.” Id. at PageID.484-85. Dr. Weitzman ultimately concluded that English “needs highly specialized care to address this tumor without delay.” Id. at PageID.485.

Approximately one month after the sphenoid bone tumor was discovered, on June 27, 2022, English had an initial consult with a neurosurgeon at the Tisch Brain Tumor Center at Duke University. Government's Response in Opposition to Compassionate Release, ECF No. 68, PageID.493. In accordance with the neurosurgeon's orders, English received a CT scan of his neck and was referred to Duke ENT specialists for further evaluation. Id. But by late July 2022-two months after the sphenoid bone tumor was discovered-the Government conceded that BOP had still not provided English with “a final diagnosis and treatment plan.” Id.

On August 24, 2022, English attended his first follow-up appointment at Duke. At this appointment, a doctor informed English that BOP would need to schedule biopsies of the sphenoid bone tumor and the other tumors in his body to assess whether they were cancerous. Defendant's First Supplemental Update, ECF No. 73, PageID.730. English also noted that he was experiencing “severe headaches, dizziness, facial pain, and numbness on the right side of his face,” with increasing anxiety due to the uncertainty of his diagnosis. Id. at PageID.731. Despite having discovered the sphenoid bone tumor three months earlier, BOP still could not provide English with a diagnosis nor treatment plan.

On September 16, 2022, the Court held an informal phone conference with the parties to discuss English's health and upcoming treatments. The Court required the Government to submit updated versions of English's medical records, and expressed concern regarding the lack of certainty on when exactly the sphenoid bone tumor biopsy would occur and whether the other tumors in English's body would be biopsied. But with the understanding that English would be receiving a biopsy in short order and without having confirmed English's ability to receive medical care if released, English's counsel and the Court agreed that a ruling on English's compassionate release motion should remain under advisement pending his receipt of this crucial treatment.

Two weeks later, on September 29, 2022, English was taken to Duke for a biopsy of the sphenoid bone tumor. ECF No. 80, PageID.1712. At this time, Duke doctors removed only part of the tumor by inserting devices through English's nasal cavity. Defendant's Medical Records, ECF No. 78 (sealed), PageID.1573-74. English's medical records show that frozen pathology^[3] was performed on the biopsied mass, indicating that it was “not concerning for malignancy.” Id. The biopsied portions were also sent for permanent pathology^[4] evaluation. Id.

In the early hours of September 30, 2022, English notified BOP staff that he was experiencing excessive bleeding from his nose after the biopsy, but was told he would have to wait, and that medical personnel would not be able to treat him until the morning. ECF No. 79, PageID.1656. As BOP medical records reflect, English's post-operative discharge orders from Duke noted that a “slight nosebleed” was possible, but the bleeding should not “soak through more than 3 gauze dressings a day.” ECF No. 78, PageID.1366. English told BOP staff that he had soaked through more than three gauze dressings, and BOP staff observed that he had “consistent blood coming from his nose.” Id. at PageID.1363. When English returned to seek medical attention in the early morning, he was transported to Duke Hospital by ambulance. ECF No. 79, PageID.1657. In the approximately eight hours that elapsed between when English sought help from BOP staff and when he was eventually seen by Duke doctors, the nose bleeding had mostly stopped, but his medical records noted “slight continued bleeding.” ECF No. 78, PageID.1562. English also complained of a “7/10 frontal headache, slight lightheadedness and dizziness” during his emergency visit. Id.

Nearly two months after the biopsy, having not received any updates regarding English's diagnosis, the Court ordered the parties to appear for a status conference set for November 28, 2022. While the Government pointed out that English's medical records indicated that the frozen section of the biopsy was “not concerning for malignancy,” ECF No. 78, PageID.1573, it did not provide a definitive answer as to whether English had received a cancer diagnosis. The Court subsequently ordered the parties to submit supplemental briefing to provide the most updated information regarding English's diagnosis and health conditions.

In response to English's supplemental health updates, the Government submitted a declaration from Dr. Andrew Stock, a BOP physician who interpreted English's medical records to confirm that the biopsy of the sphenoid bone tumor is non-cancerous. Stock Decl. (Dec. 12, 2022), ECF No. 80-3, PageID.1733. Notably, this diagnosis confirmation came almost three months after English's biopsy and nearly six months after the sphenoid bone tumor was first discovered. During this time, English was aware of the tumorous mass behind his eye, but according to English's counsel, he was wholly unaware of whether he had cancer. ECF No. 79, PageID.1656. Moreover, the Government did not dispute English's account of BOP's failure to take him for a follow-up ENT appointment scheduled for October 17, 2022. Id. at PageID.1657. Instead, the Government noted that the “target date” for English's next ENT appointment is December 30, 2022, but the appointment is not yet scheduled because of FCI Butner's “Utilization Review Committee” approval process. ECF No. 80-3, PageID.1734.

Additionally, English emphasized that BOP had also been delaying his treatment for another health concern, cardiomegaly (an enlarged heart), which had been noted by BOP medical staff as early as April 7, 2022. Id.; ECF No. 78, PageID.1440. English also cited cardiomegaly as a justification for compassionate release in his request to the warden dated May 23, 2022. ECF No. 66, PageID.478. The Government concedes that FCI Butner has no cardiologist on site, but emphasizes that English's cardiomegaly is technically “undiagnosed” because he has yet to see a cardiologist for an echocardiogram. ECF No. 80, PageID.1710; ECF No. 80-3, PageID.1734. The “target date” for English's echocardiogram appointment is apparently January 6, 2023, but it has not been scheduled yet. Id. As of now, English has been waiting nearly nine months since the condition was first noted by BOP in his medical records to receive an echocardiogram, and eight months since he raised the issue in a compassionate release request.

At his most...