PLS LITIGATION

(February 23, 2011)

Ahearn v. Vose - Challenge to the lack of adequate sanitation facilities at Southeastern Correctional Center.  In 1994, after oral argument in the Appeals Court, we negotiated a settlement which required DOC to install toilets at SECC.   After the toilets were installed, the Superior Court dismissed plaintiffs damages claim on qualified immunity grounds.  On September 2, 2005, the Appeals Court reversed this decision ruling that plaintiffs confined at SECC between 1991 and 1993 could go forward with a trial on damages.  Trial has not yet been scheduled.

Alexander v. Commissioner - Superior Court action brought to challenge the DOC’s new point-based classification system on grounds that it is a “regulation” that was promulgated without compliance with the public notice and comment requirements of Chapter 30A.  On December 10, 2010, the court granted the Defendant’s motion for Summary Judgment.  We are appealing and also, as described below, are raising the same issue in the Cox case.

Ashman v. Marshall - Damages action challenging extreme deprivations and unsanitary conditions which lasted for three weeks in the OU-I Unit at MCI- Cedar Junction.  Jury found defendants had violated the plaintiffs’ Eighth Amendment rights, but awarded only nominal damages.  On December 30, 2008, the court awarded MCLS $550, 307.00 in attorneys’ fees and costs.  DOC has appealed and briefs have been filed.  On October 22, 2010, the case was transferred to the Supreme Judicial Court, sua sponte.  The case is scheduled for argument in April.

Brown v. Maloney - Challenge to DOC practice of denying attorney visits and phone calls while prisoners are on mental health watch.  On May 27, 2005, the court issued a temporary order requiring DOC to provide prisoners with attorney visits within 72 hours.  It also ordered further evidentiary hearings to determine whether its ruling should be permanent.  Subsequently, DOC agreed to promulgate regulations that embody the temporary order.  DOC then successfully moved for summary judgment on mootness grounds.  The DOC paid $15,000 in attorneys’ fees.  We are monitoring compliance.

Burns v. UMass Correctional Health Program, et al. – This case seeks injunctive relief and damages for a prisoner who has been denied surgery to repair a torn ankle ligament, despite recommendations by orthopedic specialists for surgical intervention since 2006.  Defendants denied surgical intervention for ever-changing reasons that include Burns’ mental illness and alleged concern over possible self-harm using the surgical site.  The medical malpractice tribunal approved the malpractice claim.  Defendants have now performed the surgery, and we are proceeding with the damage component of the case.

Connors v. Commissioner of Correction - This case challenged the treatment of prisoners with diabetes.  The case settled in 1996 and we are monitoring compliance. 

Cox v. Commissioner of Correction, et al. – Like the Alexander case, this case challenges the DOC point based classification system.  Here, the Plaintiff is a prisoner with mental retardation who was classified to maximum security solely because he told his mental health clinician he would like to “bop” a guard and escape.  Applying the Classification Manual, DOC decided this comment meant Mr. Cox has both a history of escape attempts and a history of institutional violence.  After we filed the case, DOC reconsidered its position and reclassified Mr. Cox to medium security, but not before he was assaulted by three prisoners on his unit.  We have filed for summary judgment, arguing that the Manual as a whole was unlawfully promulgated, and that the escape and prior institutional violence portions of the Manual are arbitrary and capricious.  Hearing was held on January 25, 2011 and we are awaiting the decision.

Cruz v. Commissioner of Correction, et al. -   This case challenges the Department of Correction’s method for calculating prisoner release dates in sentences governed by the decision in Crooker v. Chair, Massachusetts Parole Board.  The case was dismissed as moot when plaintiff was released on parole, but was refilled when his parole was violated.

Dapkus v. UMass Correctional Health Program, et al. – This case seeks injunctive relief and damages for a prisoner whose hypertension is not being well managed.  Defendants refused to send him to see a hypertension specialist, or take any other steps, despite proving themselves unable to get his blood pressure down for the last two years.  Since we filed the case, DOC followed the recommendations of a hypertension specialist, and was able to control his hypertension, but he was then moved to a different prison where the treatment stopped.   In November, 2010, the medical malpractice tribunal allowed the claim to go forward and the case is now in discover.

Disability Law Center v. Commissioner of Correction, et al. - This case is a challenge to the practice of confining prisoners with mental illness in DOC segregation units, including the DDU.   PLS is partnering with the Disability Law Center, the Center for Public Representation, Bingham McCutchen and Nelson Mullins.  We filed the Complaint in federal court on March 8, 2007.  The judge is Mark Wolf.  Although the parties engaged in extensive negotiations in an effort to resolve this case, settlement broke down, primarily because of the Commonwealth’s financial crisis.  We have almost completed discovery and the court has scheduled trial for June of 2011.

Gaiewski v. Commonwealth, et al. – Case brought on behalf of a prisoner with mental illness whose arm was badly broken when guards slammed it in the solid door of a segregation cell at MCI Cedar Junction.  He subsequently had to undergo three operations to repair the arm, in part because Cedar Junction medical staff failed to give him the follow-up care ordered by his surgeon at Shattuck Hospital.  The complaint seeks damages and declaratory relief against both DOC and medical defendants.  We are engaged in discovery.

Haverty v. DuBois -   Challenge to lockdown, excessive force, and segregation practices and race-based discrimination at MCI Cedar Junction.  The Supreme Judicial Court affirmed the ruling that prisoners were entitled to due process before placement in restrictive confinement at MCI Cedar Junction, but reversed the order awarding prisoners compensatory earned good time.  Subsequently, the Superior Court granted our motion requiring DOC to afford due process to prisoners segregated for gang affiliation.  We are currently monitoring compliance and attempting to negotiate attorneys’ fees. 

Kelley v. Hodgson - This case deals with unlawful conditions and severe overcrowding at Ash Street Jail in New Bedford and the House of Correction in North Dartmouth (Bristol County).  In 1998, the court issued a preliminary injunction designed to curb overcrowding.  In September 2004, the court expanded the injunction to prohibit the Sheriff from housing prisoners in locked cells that do not have toilets.   On September 24, 2008, the court denied, in major part, the Sheriff’s Motion for Summary Judgment.  The Sheriff has appealed to the extent that the ruling rejected his claim to qualified immunity.  On September 24, 2009, the court allowed Plaintiffs’ motion for summary judgment, essentially converting the preliminary injunctions issued in 1998 and 2004 into permanent relief.  The parties are now exploring settlement.  

LaChance v. Commissioner – This case is part of the long effort by PLS to ensure that prisoners in segregation receive due process.  It builds on the foundation established by the SJC more than 20 years ago in Hoffer, and reaffirmed in Haverty.  On April 6, 2010, the superior court allowed our motion for partial summary judgment, ruling that because conditions in the Special Management Unit (SMU) at Souza Baranowski Correctional Center were substantially equivalent to conditions in the Department Segregation Unit (“DSU”) described in Hoffer, its operations must be governed by the DSU regulations.  These regulations control the procedures for placing and releasing a prisoner in segregation, as well as conditions inside the unit.  On August 25, 2010, the court denied the defendants’ motion for reconsideration.  Defendants are appealing on qualified immunity grounds.

Nunes v. UMass Correctional Health, et al. – This federal court action challenges the decision of the DOC and UMass to require that all antiretroviral medications prescribed to treat HIV will be dispensed only at medication lines.  Previously, these medications had been given to HIV patients as Keep-On-Person (“KOP”) medications, like the majority of medications dispensed within Department of Correction facilities.   We allege that DOC implemented the new policy over the objections of medical providers to cut costs by discouraging prisoners from taking expensive HIV medication.  

Nunes v. UMass Correctional Health, et al. - This case seeks injunctive relief and damages for a prisoner who seeks medical treatment and physical therapy for his leg, neck and back, as well as accommodations, such as a lower bunk.  He also seeks dental treatment for his necrotic and infected teeth.  The case is in discovery.

Obba v. Commonwealth of Massachusetts - Wrongful death action on behalf of estate of prisoner who committed suicide in the DDU.  Co-counsel is Margaret Burnham.  The court denied the Commonwealth’s motion for summary judgment in December 2005, and in March 2006, the medical malpractice tribunal allowed the case to go forward.  In December of 2010, the court denied the Commonwealth’s second motion for summary judgment, as well as the summary judgment motions of the medical defendants.  We are also pursuing the possibility of settlement.

Perry, et al. v. Glodis, et al. – This is an overcrowding case governed by a  consent decree entered in 1989 and modified in 2006 that limits the prisoner population at the Worcester County Jail and House of Correction.  We are monitoring compliance.

Petition Seeking Relief from Unjust and Unreasonable Cost of Collect Telephone Calls from Prisoners -  This is a petition filed with Massachusetts Department of Telecommunications and Cable on behalf of prisoners, family members, lawyers, and others who seek relied from the excessive costs and poor quality of telephone calls from prisoners in state and county facilities.  PLS is handling the case with Patty Garin.

Phillips v. Debole – This is an action brought by a prisoner with mental illness who was kicked and beaten by an officer at the Suffolk County House of Correction.  The defendant was the vice-president of the officer’s union.  The case is in discovery.

Ramos v. Flynn, et al.  -  PLS filed an amicus brief in the First Circuit in a case arising out of the Worcester House of Correction brought by a prisoner who suffered severe medical complications as a result of the failure of jail staff to provide him appropriate detoxification treatment.  The issue on appeal is whether the district court erroneously dismissed the case for failure to exhaust administrative grievances.  Our brief argues that the prisoner was not required to grieve because the jail policy specified that medical issues were not grievable.  The First Circuit heard arguments on January 5, 2011.

Richardson v. Sheriff, Middlesex County, et al. - This case concerns overcrowding at the Middlesex County Jail in Cambridge.  Although there is a court-ordered population cap at the Jail, the population regularly exceeds the cap by a substantial number.  Since existing remedies have failed to keep the population below the cap, we are exploring alternatives that would not result in the transfer of prisoners to Billerica. 

Rodriguez v. Commonwealth – This is an action for wrongful death brought on behalf of the estate of a man with both mental retardation and mental illness who committed suicide in a segregation unit (10 Block) at MCI Cedar Junction.   In October, 2009, the court denied the motion to dismiss brought by certain of the mental health defendants.  The parties have agreed to a settlement of $55,000.

Roman v. Maloney - Excessive use of force, including use of the restraint chair and failure to accommodate and treat Plaintiff's mental illness.  Discovery is complete.  The case has settled with DOC agreeing to changes in restraint procedures and $8,000 to Roman as compensation for his 14 hours in restraints.  We are monitoring compliance with the settlement agreement.

Souza v. Hodgson - Class action challenge to pay-for-stay fees, as well as fees for medical care, haircuts, and GED services, at Bristol County Jail and House of Correction.   The court allowed our motion for summary judgment in July of 2004.  In August 2004, the single justice denied the Sheriff’s motion relief pending appeal.   On March 30, 2005, the court allowed our motion for class certification, and ordered the Sheriff to return the fees. The Sheriff appealed the judgment.  On January 5, 2010, the Supreme Judicial Court affirmed the lower court’s ruling in all respects.   On January 7, 2011, the court approved the process for prisoners to get back the fees with interest.   Claim forms have been mailed out and must be returned by April 7, 2011.

Valentin v. Dennehy, et al. - This is a brutality case brought on behalf of a prisoner with mental illness who was bitten by an attack dog, gassed, and assaulted by officers in the Health Services Unit at MCI Cedar Junction, all because he refused to give up a piece of metal until he could speak to a mental health clinician.  As a result of publicity generated by this assault, DOC has stopped using dogs on prisoners.  The case is in discovery.