PLS LITIGATION
(September 8, 2009)
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. In August, 2009 the court denied Defendants’ Motion to Dismiss.
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 both the jury verdict and the award of fees.
Bargoot v. Russo, et al.- Damages action in federal court brought on behalf of a prisoner with mental illness who was forced to spend the night in a segregation cell that guards flooded with toilet water and feces. DOC has agreed to a settlement of $5,000, and to waive over $600 in restitution owed by the plaintiff.
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 has agreed to pay $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 case was filed in April and we are conducting discovery.
Connors v. Commissioner of Correction - This case challenged the treatment of prisoners with diabetes. The case settled in 1995 and we are monitoring compliance.
Cruz v. Commissioner of Correction, et al. - This case challenges the Department of Correction's method for calculating prisoenr release dates in sentences governed by the decision in Crooker v. Chair, Massachusetts Parole Board.
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. MCLS 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 have engaged in extensive negotiations in an effort to resolve this case, settlement now appears unlikely, primarily because of the Commonwealth’s financial crisis. The court has scheduled a conference for September 11, 2009.
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. The DOC declined to respond to our Chapter 258 presentment letter and is now preparing to file a complaint seeking both damages and declaratory relief.
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.
In the Matter of Grand Jury Investigation – Amicus brief in the Supreme Judicial Court on whether prosecutors can obtain recordings of prisoner telephone calls without obtaining a search warrant. The brief was written by MCLS board members Patty Garin and Beth Eisenberg. The court held argument on May 4, 2009.
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. Plaintiffs’ motion for summary judgment is under advisement.
Laurore v. UMass. Medical Healthcare - MCLS filed a petition for rehearing in the Appeals Court in which the court ruled that the statute of limitations is not tolled during the period when a prisoner is attempting to exhaust the administrative grievance process. We are awaiting a ruling from the Appeals Court.
LaChancev. Commissioner - MCLS initially filed an amicus brief in the Superior Court claiming: (1) the Special Management Unit at Souza Baranowski Correctional Center is a “DSU” that must be governed by the DSU regulations; (2) confinement on awaiting action status in the SMU for approximately 12 months is unreasonable. After the court denied the defendants’ motion for summary judgment, MCLS agreed to represent LaChance at trial, filed an Amended Complaint and conducted further discovery. We have filed for summary judgment and the court has scheduled a hearing for November 10, 2009.
MCLS v. Commissioner of Correction - This is a challenge to the DOC’s decision to deny MCLS’s public records request for policies used to determine whether and with whom prisoners at Souza Baranowski may be double bunked. MCLS is represented by Scott Lewis and the ACLU of Massachusetts.
Nunes v. O’Brien, et al.– This case challenges the recent 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. The case was filed pro-se, we entered an appearance, and after the court denied a request for a preliminary injunction without a hearing, we voluntarily dismissed the case and are refilling in federal court with multiple plaintiffs.
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. Discovery is nearly complete and the medical Defendants have moved for summary judgment. Although the court has not ruled on the summary judgment motion, and motions to compel discovery are outstanding, a final pre-trial conference is scheduled for September 22, 2009.
Perry, et al. v. Glodis, et al. - is a motion to terminate a consent decree entered in 1989 that limits the prisoner population at the Worcester County Jail and House of Correction. Early in 2006 newly elected sheriff Guy Glodis moved to terminate the consent decree. Under the PLRA the court must dissolve the decree unless the prisoners can show current and ongoing violations of their civil rights. However, the parties were able to reach agreement on a modified consent decree, which calls for a gradual reductions in the population cap. As a result, the Sheriff has been releasing prisoners early despite considerable outcry from the district attorney’s office. 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. MCLS is handling the case with Patty Garin.
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. The Complaint was filed in December of 2008. We are in discovery. UMass has also filed a motion to dismiss certain defendants.
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. The Sheriff appealed the judgment, and, after briefs were filed, the Supreme Judicial Court took the case sua sponte. We are awaiting oral argument.
Taylor v. Commonwealth– Claim for damages on behalf of a prisoner who was kept in prison for about six months after his sentence had expired because of DOC sentence computation errors. The case settled for $17, 400 ($100 per day), including $4,000 in attorneys’ fees, and a written apology.
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.