Friday, January 9, 2009

Privatized Correctional Medical Care; How the Grievance Requirement is Abused to Block the Courthouse Door

As a conservative Republican, I am not the sort of person one would think would get pulled into the issue of privatized corrections. However, as a lawyer in early 2008, I ran across several nurses who told me disturbing stories of what was occurring at a privatized jail in Marion County. When the story came out in the media, I had scores and scores of former and even present employees at the private jail, as well as inmates who had been at the facility, confirm everything that had been said. Inmates after inmate came forward talking about not getting medication or medical care. Many were injured and some inmates, young men, died.

While the situation at the Marion County jail is the worst of any I have encountered, I have also seen problems at the state level. Governor Daniels privatized medical care in state correctional facilities a few years ago. Hardly a day goes by that I do not get a letter or a phone call from an inmate who did not receive medical care in state facilities.

What is the most disturbing is how the internal grievance process mandated by the Prison Litigation Reform Act passed by Congress in 1995, is being abused to protect these private companies from the consequences of their denial of medical care. One of the provisions of the PLRA requires that before an inmate can file a lawsuit he or she must exhaust the internal grievance process in the jail. The failure to complete the grievance process means the private company's lawyers can work to block any subsequent litigation.

In the privatized Marion County jail, I have yet to find the first inmate who has been able to complete the grievance process. In other facilities, I am seeing inmates who file grievances about the failure of the private company to provide medical care, harshly retaliated against. At one Hendricks County state facility, several inmates who have filed grievances about the lack of medical care have been threatened with transfer unless they withdraw their grievance against the private company providing medical care at the facility. One inmate at that facility who was actually hit by hit by a vehicle on state property, sent the State a Notice of Tort Claim and filed a grievance when the private company providing medical care at the facility would not treat him for his injuries. When he wouldn't withdraw them, he was shipped to a prison in northern Indiana the day before I was scheduled to see him. Another inmate at the facility was promised medical care if he withdrew his grievance. He withdrew it and then the medical care was not forthcoming.

As I have noted before, I just do not believed corrections, and especially correctional medical care, is an area where privatization works. But if privatized corrections is going to have any chance of being a viable option, state and county officials need to make those private companies follow the law and their contracts. It is not enough to simply hand those companies long-term contracts and walk away hoping they will voluntarily follow their contracts and the law. They won't.

5 comments:

burlingtonasacoach said...

Paul

We have begun to receive complaints from inmates in the state facilities. I think it's time for the Senate Judiciary Committee to come in and do an investigation of the private jails, prisons, and the medical services in the state of Indiana. You can't count on the city or state to do their job. It's been going on too long already and people have died.

Leslie Sourwine
The Police Complaint Center

Doug said...

Correct me if I'm wrong, but the PLRA only bars their Constitutional claims (or, I suppose, other federal claims) for failure to complete the grievance process? Negligent medical care should still be actionable as a medical malpractice claim, right?

Paul K. Ogden said...

Doug,

Boy I wish that were true. The PLRA be used to bar any claim. A few government run institutions though take the position that medical claims are not grievable. If they take that position, then you don't have to go through the grievance process. The private correctional companies make people grieve everything. Even the government ones now are making inmates grieve everything.

I have looked and looked and looked for PLRA loopholes. I even worked with Ken Falk of the ICLU and other civil rights attorneys. None of them knew a way around the PLRA grievance requirement. I haven't found any.

CCA/Jail #2 has now adopted an "informal resolution" process that must be completed before an inmate can even file a grievance. The IR process does not even require that they put anything in writing, which is excatly what they want: Nothing in writing.

Indiana has a jail regulation on grievances which is more protective of inmate rights. I think CCA has to follow the Indiana grievance rule (not make up their own). It's a question of state law that has never been addressed in Indiana. Unfotunately my request to certify the legal question was denied by the federal court.

Paul

Paul K. Ogden said...

I may not have made myself clear, the grievance requirement applies to both state and federal claims.

burlingtonasacoach said...

Paul
The grievance process at Jail II was designed to prevent complaints for denial of medical care. I’m sure you already know that but I wanted to clarify for the record. In my travels through cyberspace searching for answers I’ve noticed that each facility has one thing in common. That is, there are bonuses for cutting expenses (corners) and for not having complaints. The non-doctor in Jail II who may not be qualified to deal with many of the medical problems the inmates have many times changes the quality and dose of medication the inmates receive even though traditional or real doctors prescribed something else. In our state and city the definition of assault is “anytime the person feels they are going to come to harm” whether you actually harm them or not. My question then is, if inmates are denied medical care and medication and they are placed in fear for their lives does this constitute assault?

One of the complainants we dealt with was on a medication necessary to sustain life. Here’s a part of the complaint we received “He was initially in Marion County Jail 1, where he WAS receiving proper medical care. He has a severe case of Hypothyroidism. He needs 25mg/day of Synthroid. MMJ1 was giving it to him, and when he was put in CCA, instructions came with him about the necessity of his receiving that drug, in addition to regular blood tests to monitor his hormone levels.

When he ran out of the Synthroid, CCA put him on some other drug, along with a psychiatric drug, which causes him severe headaches. HE HAS NEVER BEEN GIVEN A BLOOD TEST IN THE FOUR MONTHS HE HAS BEEN IN CCA. Now (Name removed) is down to his last 4 pills of whatever replaced the Synthroid. CCA doctor told him he was not getting anymore.”

Technically every time an inmate fears for his life because of denial of medical care or denial crucial medication shouldn’t the non-doctor face assault charges?

Leslie Sourwine
The Police Complaint Center