Articles Posted in Police Brutality/Civil Rights Violations

The link below will take you to an article from the Yamhill News-Register covering five deaths that occurred in a six year period at the Yamhill County Jail.  In addition to the closed Jed Hawk Myers case, I am currently representing family members in three cases against Yamhill County and Wellpath, their contracted medical provider, for Civil Rights violations resulting in the death of folks who had not been convicted of any crime.  It doesn’t take very long to realize there is some commonality to these cases.

In the case of Kathy Norman, both the Yamhill County Sheriff’s deputies and the Wellpath Licensed Practical Nurse (LPN) on duty were fully aware that Ms. Norman was beginning to detox from alcohol; they had been told by the ER providers, the transporting police officer, and Ms. Norman herself.  They also knew that detoxing from alcohol can be easily and successfully treated with medication.  They knew that the condition of folks detoxing from alcohol can change rapidly and can be deadly.  Nonetheless, they accepted custody of Ms. Norman and then never evaluated her detox symptoms or took any vital signs.  The Norman case has some similarities to the Jed Hawk Myers and Debbie Samples cases from 2015 and 2016.  All these cases involved detainees who were identified to be medically vulnerable and who needed to be lodged in a cell with video surveillance.  In both the Myers and Norman cases, they were put into these cells without any vital signs being taken, and no effort by anyone to return to get that crucial information.  In both the Norman and Myers cases deputies simply looked through the very narrow glass window in the cell door to do “security checks”. Security checks involve a deputy looking long enough (about 2 seconds) to make sure the person in the cell is present and alive.  These are not checks designed to obtain medical information.  In both Myers and Norman, it took them being on the floor and not breathing before anyone entered their cells to check on them.  In both the Samples and Norman cases, hospital providers communicated to the jail staff the need for specific care and conditions to watch out for; Samples being suicidal and Norman detoxing from alcohol.  Tragically in both situations, that advice went largely ignored and resulted in the preventable deaths from the exact conditions the Sheriff’s office was warned of.  Myers, Samples, and Norman needed to be checked on more frequently and with more attention until they were stable, or sent to an appropriate medical provider where they could get the necessary care.  Jail policies call for different levels of checks in terms of increments of time.  All inmates are checked by deputies at less than one-hour intervals; medical and suicide checks can be in 30 or 15 minute increments.  None of the victims were looked at any more often than any other detainees with no medical issues.

The county will say they have contracted with Wellpath and that they rely on them to deal with all medical issues.  “They are the experts…” But jail policies and Oregon laws state that ultimately inmate healthcare is still the county’s responsibility.  After all, it was only five months prior to Ms. Norman’s death that Sheriff Svenson wrote an editorial in the Yamhill County News Register taking full responsibility for Mr. Myers’ and Ms. Samples’ deaths.  “The buck stops here”, he wrote.  Apparently, that is just until the next jail death or his re-election comes along, as there have been three more deaths since that confessional editorial.  After Ms. Norman’s death, Sheriff Svenson was quoted in the local paper saying there is “zero indication” the staff was negligent in anyway.  He went on to praise the medical provider saying, “the contractor is doing a great job.” and “it’s nice to know there is a nurse in the jail at all times. It’s been very good.” While it is good to have someone with some medical training, it is too much for one LPN to take on alone.  There are times when the LPN is not able to closely monitor those in medical because the nurse often has to spend hours passing out medication to the other inmates and/or may be over at the juvenile facility.  How can this be Sheriff Svenson’s response when both medical and Yamhill County deputies knew Ms. Norman was detoxing, yet they took no vitals, took no detox history, did no detox evaluation, did not closely monitor her, withheld medication, and never called the ER staff for more information they might need to treat her.  They just locked her into the cell, never entered her cell to check on her condition, and failed to give her lifesaving medication.

Regular readers of this blog will remember that I have repeatedly highlighted the fact that contracting out prison services to private companies often leads to tragic results. This is especially true when medical services are among the key government responsibilities put out for bidding.

Case law at both the federal and state levels is clear: when the government takes away someone’s freedom it also assumes responsibility for their well-being. Prisoners may not be a popular constituency among politicians, but that does absolve government of its legal and moral duty to offer adequate care for the people it locks up.

The latest example of this trend can be found in Maine. A recent article on the website of Maine Public Broadcasting outlines a lawsuit brought by “the NAACP’s Maine State Prison chapter… raising allegations of inadequate prison healthcare services. In a report that details the stories of anonymous residents, they allege that heart conditions, infections, diabetes and other serious conditions are being neglected or misdiagnosed by prison healthcare provider, Wellpath LLC.”

I have used this space more than once to focus on healthcare and prisons, with a particular emphasis on Wellpath. The Tennessee-based company touts itself as “the premier provider of localized, high-quality compassionate care to vulnerable patients in challenging clinical environments.” In plain English, that means they are a for-profit company that provides medical care in jails and prisons nationwide.

As I noted in a post last October, Wellpath is frequently sued for being deliberately indifferent to their patient/inmate’s constitutional right to adequate medical care. A California newspaper reported last year that since 2003 Wellpath has been sued “at least 1,395 times in federal court.” Wrongful death actions figured prominently in this tally.

Recent news from both the east and west coasts has highlighted WellPath’s approach to the COVID-19 pandemic. That news also raises, yet again, questions about whether the company does everything it should to care for the people placed in its charge.

A California newspaper’s investigation of deaths in county jails is shining a light on the issue of both for-profit prisons and outsourced prison healthcare. An investigation by the Redding Record-Searchlight found that “from 2005 to 2019, about 1,960 people died in the custody of California county jails.” Even granted the state’s immense size this is a shocking figure, one that highlights the importance of civil rights laws protecting even an unpopular group such as prisoners.

The figures compiled by the Record-Searchlight work out to roughly 130 jail deaths per year. Last year an investigation by Oregon Public Broadcasting put the 2018 figure for Oregon and Washington combined at 39, and noted that jail deaths have been trending upwards over the last decade. When you adjust for population (about 12 million for our two states versus just under 40 million for California) the overall mortality rate is similar.

I have written about jail deaths here in Oregon before. Both here and in the Record-Searchlight’s reporting one name keeps turning up. Wellpath is a Tennessee-based company which describes itself as “the premier provider of localized, high-quality, compassionate care to vulnerable patients in challenging clinical environments.” In ordinary English that means they are a private, for-profit, health-care company that specializes in offering care for prisoners. The newspaper quotes a psychologist who consults on prison staff training and prison conditions saying that for-profit companies like Wellpath do “an absolutely awful job.”

An incident in Colorado, recently recounted by The Oregonian, offers striking insight into the culture of neglect in our prisons and the important role our courts must play in ensuring justice is done.

On the night of July 31, 2018, the newspaper reports, an inmate at a county jail in Denver “gave birth to her son alone in her cell without medical supervision or treatment, despite repeatedly telling the jail’s staff that she was having contractions, according to a federal lawsuit.” The paper reports that the entire incident was “captured on surveillance video.” Yet, astonishingly, “an internal investigation by the Denver Sheriff’s Department cleared its deputies of wrongdoing.”

To call this appalling is an understatement. As I noted in a blog last March, an 8-1 Supreme court ruling dating all the way back to 1976 (Estelle v Gamble) clearly established the right of prisoners to adequate medical care. The court wrote that “deliberate indifference to serious medical needs of prisoners” falls under the constitution’s prohibition of “cruel and unusual punishment.”

The series begins with several examples of prison and jail deaths, followed by a stark statistic: “Since 2008, at least 306 people across the Northwest have died after being taken to a county jail.” Over the course of a three-part investigation published last week Oregon Public Broadcasting, working in cooperation with other public media outlets in Oregon and Washington, offered a detailed, and disturbing, look at the state of health care available to people jailed here in the Pacific Northwest.

Notably, the death statistic does not come from an official source. As OPB reports, “until now, that number was unknown, in part because Oregon and Washington have not comprehensively tracked those deaths in county jails.” In other words: it took a media investigation to determine the extent of the problem, one that OPB calls “a crisis of rising death rates in overburdened jails that have been set up to fail the inmates they are tasked with keeping safe.”

OPB reports that suicide is “by far the leading cause of jail deaths in the Pacific Northwest, (accounting) for nearly half of all cases with a known cause of death.” Yet the issues the series raises concerning negligence and indifference on the part of jail staff are also significant. The series offers a number of examples of inmates who died after being served food to which they were allergic, or whose complaints about serious medical issues were ignored.

A recent story published by Courthouse News Service details a legal case in Arizona that deserves to be making headlines nationwide. There has been a lot of media coverage over the last few years of the abuses of the private, for-profit prison industry. The Arizona case, however, highlights what can go wrong even when the state is still in charge. It also reminds us of the critical role our courts play in overseeing those with power and ensuring they do their jobs properly and humanely.

In Arizona, according to the news service, the state retained control of the prisons that are the focus of the lawsuit, but contracted out medical services to “Corizon, one of the nation’s largest prison health care providers.” Citing reporting by local NPR affiliate KJZZ, the news service writes that a Corizon staff member told a doctor working with the company part-time “to cancel a pending infectious disease consultation for a prisoner” because the consultation was past due and the company risked being fined for its slow response. The whistleblower also reported instances of critical medication, such as insulin, being withheld from prisoners and of her superior ordering her not to treat an inmate who had suffered a heart attack. She alleges she was told to spend less time with patients and focus on paperwork instead.

This case raises serious political issues, reminding us that the ‘savings’ offered by privatizing public services can sometimes be illusory. It also raises an equally serious civil rights issue. As I have noted in the past, federal, and many state, laws require that inmates receive a level of health care comparable to what they could expect to receive were they free. Failure to provide that level of care is a civil rights issue as defined in 42 US Code 1983. This statute protects anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” by the government at any level. Crucially, that responsibility extends to the government’s agents – in this case, private contractors. Corizon is a private company, but because it is working for the government, the government’s obligation to provide proper medical care extends to the company itself. Corizon, in legal terms, becomes a “state actor” because they are under contract to, in this case, Arizona to treat people who are, ultimately, in the state’s care.

A recent article in The Oregonian documented efforts by Disability Rights Oregon to convince “the Multnomah County Sheriff’s Office to transfer jail inmates undergoing mental health crises to the city’s new emergency psychiatric care center if needed.” As the article outlines, the Northeast Portland facility recently opened, offering “a long-awaited alternative to having police take people in crisis to regular hospital ERs.”

As the newspaper reports “a no-guns policy and other logistics make the request a tough sell.” What it does not lay out, however, is an especially strong legal argument for using the Unity Center for Behavioral Health: prisoners’ rights.

As I have written in other contexts, one of the most important legal tools for ensuring that people held in custody are treated in a humane way that respects their rights is 42 USC 1983. This allows individuals to sue when the government deprives them of any of the “rights, privileges, or immunities secured by the Constitution and laws.” In plain English: it offers a mechanism for people who have been mistreated by government at any level (local, state, federal) to have their day in court and obtain justice.

According to the Oregon Department of Prisons website our state first experimented with private prisons in the late 1800s. The state penitentiary “was leased to a private company… Since this concept was becoming very popular nationwide, Oregon’s legislature approved the experiment.” It did not last long. “In one day every inmate at the penitentiary escaped. Most walked out the front gate.”

This amusing historical nugget is a reminder that some ideas never quite go away – in this case the idea that private companies are always more efficient and that their need to make a profit will not result in either sloppy work or abuses (the 19th century version of private prisons made their money mainly by hiring the prisoners out as labor). Today, private prisons are illegal in Oregon, and our state is one of 11 that do not use the private system at all, according to a 2012 report by The Sentencing Project. An announcement by the Obama administration last month that the Federal government will phase out its use of private prisons is also likely to put a dent in the industry.

As a recent article in The New Yorker outlines, however, beyond the full-scale privatization of prisons the growth of all prisons over the last generation along with America’s collective assumption that private services are always superior to public services has led to some shocking arrangements in both government and private-run prisons. These often deny basic civil rights to prisoners with the goal of making money for the government. For example, the magazine notes, “short phone calls from prison can cost up to fifteen dollars, largely because the companies operate as monopolies within prison walls. The private companies also offer state and local authorities a percentage of their revenue, which contributes to the cost of the calls and creates other perverse incentives. Some jails, for instance, have removed in-person family-visitation rooms to make way for ‘video visitation’ terminals, provided by private firms, which can charge as much as thirty dollars for forty minutes of screen time.”

In six months, one of the trials in the Oregon police brutality lawsuit accusing Portland police officers of contributing to James P. Chasse Jr.’s wrongful death, because they allegedly used excessive force when apprehending him and then denied him the proper medical care, is scheduled to begin. Already, Multnomah County commissioners have approved a $925,000 settlement that resolves the Portland, Oregon wrongful death claim made by Chasse’s family against the county and several defendants, including former Multnomah County Deputy Bret Burton and correction nurses Sokunthy Eath and Patricia Gayman.

Claims however, are still pending against the city of Portland, former Mayor Tom Potter, Portland Police Officer Christopher Humphreys, Chief Rosie Sizer, police Sgt. Kyle Nice, American Medical Response Northwest Inc., and paramedics Kevin Stucker and Tamara Hergert. Because a court order divided the case in two, there will be a second civil trial in late 2010.

Chasse, 42, was a schizophrenic. Burton, Nice, and Humphreys reportedly arrested him after one of the cops noticed that he appeared to be urinating in public. Police say they chased down the suspect, knocking him to the ground and handcuffing him while he struggled. They also stunned him with a Taser.

Following the incident, Chasse’s vital signs appeared normal. As a result, ambulance workers who arrived at the arrest scene did not take him to the hospital. The jail, however, would not book him because of his physical condition.

The 42-year-old suspect died in police custody as he was being transported to the hospital. According to the Multnomah County medical examiner, Chase sustained major internal injuries, and broke 16 ribs, his sternum, and a shoulder.

While the Use of Force Review Board determined that the way Chase was apprehended did not violate bureau policy, the board said that Chase should have been sent to the hospital right after he had been Tasered. As a result, Police Chief Rosie Sizer is recommending that Nice be suspended.

Portland chief recommends sergeant’s suspension in Chasse’s death, Oregon Live, September 23, 2009
County pays $925,000 to settle part of Chasse lawsuit, Portland Tribune, July 2, 2009

Related Web Resources:

Portland Police Bureau

Taser Deaths Blog

Taser guns ‘raised deaths in custody,’ New Scientist, February 2009

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50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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