UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

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DISABILITY LAW CENTER, INC.,

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Plaintiff,

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v.

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MASSACHUSETTS DEPARTMENT OF CORRECTION; )

KATHLEEN DENNEHY, COMMISSIONER OF THE

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MASSACHUSETTS DEPARTMENT OF CORRECTION, in )

her official capacity; JAMES BENDER, DEPUTY

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COMMISSIONER OF THE MASSACHUSETTS

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DEPARTMENT OF CORRECTION, in his official capacity; )

VERONICA MADDEN, ASSOCIATE COMMISSIONER )

OF REENTRY AND REINTEGRATION OF THE

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MASSACHUSETTS DEPARTMENT OF CORRECTION, in )

her official capacity; JOHN MARSHALL, JR., ACTING

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SUPERINTENDENT OF MCI-CEDAR JUNCTION AND )

ASSISTANT DEPUTY COMMISSIONER – NORTHERN )

SECTOR, in his official capacities; and TIMOTHY HALL, )

ACTING ASSISTANT DEPUTY COMMISSIONER –

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SOUTHERN SECTOR, in his official capacity,

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Defendants.

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CIVIL ACTION NO. 07-10463

COMPLAINT

Introduction By placing prisoners with mental illnesses in segregated confinement, the Massachusetts Department of Correction subjects these vulnerable individuals to conditions they are physically and psychologically incapable of tolerating for any sustained period of time. The extreme social isolation and sensory deprivation conditions of segregated confinement are difficult for all prisoners; for prisoners with mental illnesses, they exceed the limit of human endurance. Indeed, it is only too common for prisoners with mental illnesses to suffer further psychological deterioration, inflict serious harm to themselves, and even commit suicide as a result of placement in segregation.

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The Department of Correction and each of the individually named defendants is aware of the effect placement in segregation has on prisoners with mental illnesses. Nevertheless, they have taken no effective action to ameliorate the conditions under which prisoners with mental illnesses can be confined outside of the general prison population. By acting with deliberate indifference to this situation, each of the individually named defendants subjects prisoners with mental illnesses to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. The Department of Correction has also failed to address the problem, and therefore violates both Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.
On behalf of all Massachusetts prisoners with mental illnesses, the Disability Law Center, Inc. brings this action to challenge the unlawful practice of the Massachusetts Department of Correction and each of the individually named defendants of confining prisoners with mental illnesses in segregation.
Parties 1. Plaintiff Disability Law Center, Inc. (“DLC”) is a not-for-profit Massachusetts corporation and the authorized protection and advocacy agency for Massachusetts under the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. Among other things, DLC is authorized by statute to pursue legal, administrative, and other appropriate remedies to ensure that individuals with mental illnesses confined in Massachusetts prisons are protected from abuse and neglect. 42 U.S.C. §§ 10802, 10805. 2. Defendant Massachusetts Department of Correction (“DOC”) is a department of the Commonwealth of Massachusetts. 3. Defendant Kathleen Dennehy is presently Commissioner of Correction for the DOC, and at all times relevant to this Complaint, was acting within the scope of her employment and under color of state law in her capacity as Commissioner of Correction. Defendant Dennehy is directly responsible for the administration of all DOC correctional facilities, and has the

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authority to transfer any prisoner to segregated confinement for any amount of time she determines appropriate, consistent with DOC regulations. She is sued in her official capacity.
4. Defendant James Bender is presently Deputy Commissioner of the DOC, and at all times relevant to this Complaint, was acting within the scope of his employment and under color of state law in this capacity. Responsible for ensuring compliance with federal and state law, Defendant Bender directly oversees the daily operation of the DOC, including whether prisoners shall be confined to the Department Disciplinary Unit (a type of segregated confinement). He is sued in his official capacity.
5. Defendant Veronica Madden is presently Associate Commissioner of Reentry and Reintegration of the DOC, and at all times relevant to this Complaint, was acting within the scope of her employment and under color of state law in this capacity. Defendant Madden has supervisory authority over Inmate Health Services, including the provision of mental health care to prisoners held in segregated confinement. She is sued in her official capacity.
6. Defendant John Marshall, Jr. is presently Assistant Deputy Commissioner – Northern Sector, and acting Superintendent of MCI Cedar Junction, and at all times relevant to this Complaint, was acting within the scope of his employment and under color of state law in these capacities. Defendant Marshall has authority for supervising the operations of eight correctional facilities, including Souza Baranowski Correctional Center (“SBCC”), MCIConcord, MCI-Framingham, MCI-Shirley, and the North Central Correctional Institution at Gardner, and is specifically responsible for the safe and humane operation of the segregation units at MCI Cedar Junction. He is sued in his official capacity.
7. Defendant Timothy Hall is presently Acting Assistant Deputy Commissioner – Southern Sector, and at all times relevant to this Complaint, was acting within the scope of his employment and under color of state law in this capacity. As Acting Assistant Deputy Commissioner, Defendant Hall has authority for supervising the operations of nine correctional facilities, including Bay State Correctional Center, MCI-Cedar Junction, MCI-Norfolk, MCIPlymouth, Pondville Correctional Center, Bridgewater State Hospital, Massachusetts Alcohol

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and Substance Abuse Center, Massachusetts Treatment Center, and Old Colony Correctional Center. He is sued in his official capacity.
Jurisdiction And Venue 8. This court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331 and 1343. 9. Plaintiff is entitled to declaratory relief pursuant to 28 U.S.C. § 2201. 10. Venue is proper in this district under 28 U.S.C. § 1391(b).
Facts Background and Types of Segregated Confinement 11. Mental illness is widespread in Massachusetts prisons. Approximately twentyfive percent of all prisoners receive treatment for some kind of mental disorder. The percentage of mentally ill prisoners in segregated confinement is much higher than the percentage of mentally ill prisoners in the general population. 12. The DOC operates dedicated segregation units in all of its maximum and medium security prisons: Massachusetts Treatment Center, MCI-Cedar Junction, MCI-Concord, MCIFramingham, MCI-Norfolk, MCI-Shirley, North Central Correctional Institution at Gardner, Old Colony Correctional Center, and Souza Baranowski Correctional Center. At any given time, there are at least 500 prisoners in segregation units. 13. There are at least three different types of dedicated segregation units in the DOC: the Department Disciplinary Unit (“DDU”), Department Segregation Units (“DSU”), and Special Management Units (“SMU”). Each is intended to serve a different purpose. 14. The DDU is designed to punish prisoners who have committed a serious infraction of the DOC disciplinary rules. Prisoners may be sentenced to the DDU for terms of up to ten years per disciplinary offense. Although a prisoner’s sentence can be extended for misbehavior in the DDU, it cannot be reduced. 15. Currently, the DDU exists only at MCI-Cedar Junction, and has the capacity to hold about 124 prisoners.

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16. The DSU is intended to confine prisoners who pose a substantial threat to others or to the security of the institution when housed in the general prison population. Prisoners placed in a DSU remain there until they meet a set of conditions established by the DOC for their release to general population. Since prisoners often fail to fulfill these conditions, they may be housed in a DSU for years at a time.
17. Currently, the DSU exists in two blocks in the East Wing of MCI-Cedar Junction, but not at any other facility. There are approximately 45 prisoners in each DSU block.
18. Unlike the DDU and the DSU, the SMU is a catch-all for those prisoners DOC determines cannot otherwise be in the general population. The DOC may confine a prisoner in an SMU not only as discipline for offenses that do not warrant placement in the DDU, but also for protective custody or administrative segregation. Prisoners are held in the SMU for varying lengths time, from as little as a few days to several years.
19. Currently, the DOC operates SMUs at MCI-Cedar Junction (including a section of units referred to as “10 Block”), Souza Baranowski Correctional Center, MCI-Concord, MCIFramingham, MCI-Norfolk, MCI-Shirley, the Old Colony Correctional Center, the Massachusetts Treatment Center, and the North Central Correctional Institution at Gardner.
20. The DOC also holds prisoners under segregation conditions outside the formal segregation units for weeks at a time. For example, a prisoner may be locked alone in his cell for 23 or more hours per day on “awaiting action” status, even when his cell is located in the general population.
21. Prisoners may also be moved from a regular segregation cell into a DOC health services unit where they may be placed in four-point restraints1 or put on a mental health watch or security watch. Prisoners may be isolated in these units for weeks or even months, during which time they generally are denied visits, telephone calls, showers, or any other out-of-cell time, even to meet with a mental health clinician. These overly restrictive and punitive
1 103 CMR 505.6 defines a four point restraint as “[a]ny combination of instruments of restraint such that four limbs of an inmate are restrained at any one time, in any manner to a fixed object.”

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conditions often exacerbate an inmate’s mental illness or suicidal feelings. While mental health watch is not technically a form of segregation, a DOC consultant recently concluded that “[c]onfining a suicidal inmate to their [sic] cell for 24 hours a day only enhances isolation and is anti-therapeutic.” Lindsay M. Hayes, 2007 TECHNICAL ASSISTANCE REPORT ON SUICIDE PREVENTION PRACTICES WITHIN THE MASSACHUSETTS DEPARTMENT OF CORRECTION 26 (Feb. 1, 2007) (hereinafter “Hayes Report”).
Conditions in Segregation 22. The cells in each type of dedicated segregation unit are very small. For example, cells in the DDU are seven feet by twelve feet; DSU cells in 10 Block in MCI-Cedar Junction are six feet by nine feet. The walls of the cells in the DDU and in 10 Block are constructed from solid concrete. In most segregation units, the door is also solid except for one narrow slot that is used to deliver food to the prisoner and a small window. Some segregation cells, such as those at 10 Block, have both a solid outer door and an inner barred door. There is typically one small window to the outside that allows in little, if any, natural light. Some segregation cells, however, such as those at 10 Block, MCI-Norfolk, and NCCI-Gardner, have no windows at all to the outside. All segregation cells have minimal furnishings. 23. Prisoners are confined in these cells for approximately twenty-three hours each day. 24. Prisoners held in segregation are allowed one hour of solitary exercise each weekday in small outdoor cages. As the exercise cages are at least partially open to the weather, recreation is often cancelled when it rains or snows. Moreover, prisoners with mental illnesses often choose not to exercise because they are too depressed or their mental illness makes them too afraid to leave their cell. Many do not leave their cell for weeks or even months at a time. 25. Each type of segregated confinement is designed to minimize the prisoner’s contact with others. As a result, prisoners in segregation are deprived of virtually all social contact and environmental stimulation:
a. A prisoner in segregation cannot see other prisoners from his cell.

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b. A prisoner in segregation must eat alone in his cell for each meal.
c. In order to communicate with neighboring prisoners in segregation, the prisoner must yell through air vents or the food slot in his cell door.
d. A prisoner held in segregation cannot attend religious services, cannot work in a prison job, cannot attend programs, and cannot participate in rehabilitative activities.
e. A prisoner held in segregation is allowed only non-contact visits, i.e., the prisoner is separated from his visitor by a plexiglass window and must speak through a telephone. Visits are infrequent and often denied as a result of the prisoner’s behavior in segregation.
f. Access to telephones, reading material, and radios is highly restricted. Television is prohibited to all prisoners in segregation, except to some prisoners in the DDU. Placement of Prisoners with Mental Illnesses in Segregation
26. Many mentally ill prisoners have difficulty conforming their behavior to prison rules. They often manifest their illness by self-harm or other disruptive behaviors. Their unusual behavior also makes them prone to victimization and assaults by other prisoners.
27. DOC custodial staff are not properly trained in the identification and management of mentally ill prisoners. They often do not recognize that the problematic behavior is caused by mental illness. Instead, they commonly conclude that the prisoner is being manipulative or feigning symptoms.
28. Although DOC has a policy, 103 CMR 650, that requires prison administrators to consult with mental health staff before a prisoner is placed in segregation, the policy does not require that mentally ill prisoners be excluded from segregation. Indeed, mental health personnel complain that they are not regularly invited to participate in segregation review meetings.
29. Unlike its counter-parts in most states, the DOC does not have a secure treatment program that could serve as an alternative to segregation. As a result, mental health staff are under pressure from DOC administrators not to recommend that prisoners with mental illness be screened out of segregation. When mental health clinicians inform correctional administrators that an inmate cannot tolerate segregation, the administrators often reject their recommendations. As a result, few prisoners are screened out of segregation because of their mental illness.

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30. Furthermore, those few prisoners with mental illness who are screened out of a segregation unit like the DDU are usually placed in some other form of segregated confinement. Because these prisoners still end up in segregated conditions, the absence of a high security residential treatment facility unit undermines the DOC mental health screening process.
Effect of Segregation on Prisoners With Mental Illness 31. The social isolation and sensory deprivation associated with segregation can create symptoms of mental illness even in psychologically healthy individuals. These include massive anxiety and panic attacks, hypersensitivity, difficulty with concentration and memory, insomnia, compulsiveness, uncontrollable rage, acute confusional states, social withdrawal, hopelessness, hallucinations, and paranoia. Some doctors have identified this constellation of symptoms in prisoners confined in segregation as a syndrome known as Special Housing Unit Syndrome. This syndrome was first identified by a psychiatrist who published the result of his evaluation of prisoners confined in 10 Block in MCI-Cedar Junction more than twenty years ago. 32. If a prisoner is already psychologically impaired when he is placed in segregated confinement, the harsh conditions of segregation can be devastating. The result is often permanent and serious psychological harm and sometimes a catastrophic deterioration in his mental health. 33. The symptoms of mental illness manifest in many ways. Prisoners with mental illnesses held in segregation units may refuse to leave their cells for exercise, showers, or even to meet with a therapist, either out of fear or depression. It is common for mentally ill prisoners in segregation to cut their arms, necks, or bodies. Many are obsessed by suicidal thoughts, and some repeatedly attempt to hang themselves or cut themselves. Some swallow razor blades, radio or television parts, wrist braces, or batteries. Others insert metal objects in their penises. Still others assault staff. Paranoia is rampant among mentally ill prisoners in segregation. Some prisoners are afraid to sleep, fearing guards will open their cell doors and attack them. Not uncommonly, a segregation cell block is filled with the odor of feces that a mentally ill prisoner

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has smeared in his cell or on his body. Many mentally ill prisoners neglect to bathe or lie in their

beds most of the day.

34. As a result, prisoners with mental illness receive disciplinary reports rather than

appropriate mental health care. Some face sanctions that include additional segregation time and

loss of even minimal privileges afforded other prisoners in segregation. The DOC is aware that

this practice is not recommended by prison mental health experts. Hayes Report at 32 (“it is

strongly recommended that no inmate (regardless of their [sic] mental status) should receive a

punitive sanction (i.e., disciplinary report) based solely upon self-injurious behavior”).

35. Although mental health clinicians in the prison system may inform defendants

that these punishments exacerbate the prisoner’s illness and increase his disruptive behavior,

defendants rarely modify the sanction to accommodate the prisoner’s mental disorder. Prisoners

are caught in a cycle in which they are punished for conduct that stems from their illness, the

punishment exacerbates their conditions, and this in turn increases their self-destructive

behaviors. 36.

Provision of Mental Health Care in Segregation The devastating effects of segregation on prisoners with mental illnesses cannot

be ameliorated by mental health treatment no matter how intensive. In any case, the mental

health services provided by the DOC to prisoners held in segregation are inadequate.

37. Typically, mental health sessions occur while the prisoner is still in his cell, with

the health care provider standing outside of the cell and speaking to the prisoner through the food

slot or a crack in the side of the door. Under these circumstances, there is no privacy or

confidentiality. The prisoner and the therapist cannot even look at each other face to face.

38. Although the DOC does allow private meetings between therapists and prisoners,

both DOC therapists and prisoners are reluctant to request them. A prisoner must be strip-searched

before each private meeting. Correctional officers take advantage of the meeting to search the

prisoner’s cell. Further, correctional officers often do not have enough time to stop what they are

doing and to transport the inmate. Consequently, private interviews are very infrequent.

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39. The mental health treatment provided to mentally ill prisoners in segregation cannot prevent deterioration, as evidenced by the fact that mentally ill prisoners in segregation even if they receive intensive attention from mental health staff - frequently require transfer to Bridgewater State Hospital for in-patient mental health treatment.
40. However, even transfer to Bridgewater State Hospital is not a permanent solution, as many prisoners with mental illnesses are returned to the same segregated conditions after they are stabilized, only to deteriorate once again. Some prisoners are sent back to segregation on or before the expiration of the 30-day evaluation period even if they have not stabilized. Others, thought to require a level of security that Bridgewater State Hospital cannot provide, spend their entire time at the hospital in segregation-like conditions, unable to benefit from the enhanced therapies that are supposed to be available to them. Many prisoners have shuttled back and forth between segregation and Bridgewater State Hospital more than ten times.
41. Since November, 2004, at least eleven prisoners have committed suicide while being held in segregated confinement, including four in the last ten weeks. At least seven of these prisoners suffered from a mental illness.
Examples of Mentally Ill Prisoners in Segregation 42. Mr. A was a 26-year-old prisoner who was both mentally retarded and mentally ill, with diagnoses that included major depression with psychotic features. Mr. A was placed in segregation on December 7, 2005 in the Health Services Unit at MCI-Cedar Junction in four point restraints after he cut his throat and his arm. Several days later he was moved to 10 Block, even though a clinician at Bridgewater State Hospital had warned that confinement in segregation was likely to have a deleterious impact on his mental status. On December 19, 2005, Mr. A met with an attorney and paralegal. He appeared disoriented, scattered, and incoherent. He told them that he wanted to die because he was extremely depressed and sick of living that way. The next day correctional officers closed the outer solid steel door to his cell because he threw his lunch tray on the tier. Although correctional officers are supposed to check each

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prisoner every half hour, they failed to do so on that day. That afternoon, Mr. A committed suicide by hanging himself in his cell.
43. Mr. B was 22 years old when he committed suicide by hanging himself in an SMU at SBCC on October 22, 2005. Mr. B had a history of serious mental health issues, including bipolar disorder, attention deficit hyperactivity disorder, and extreme paranoia. In the months before his death, he was placed on suicide watch on multiple occasions, and once cut his arm so badly that it required twenty staples. Mr. B was placed in segregation because of a fight with another prisoner that was caused by his paranoid state. While in the SMU, Mr. B’s mental status began to deteriorate and he became increasingly despondent and paranoid. He talked about other prisoners knowing things about him and complained about cameras and other listening devices in his cell. He lost weight because he thought prisoners and staff had tampered with his food. He was often awake all night talking to himself, and he began writing numbers on his cell wall with soap. As a result of this behavior, he was admitted to Bridgewater State Hospital on September 14, 2005. This was his second Bridgewater hospitalization. On October 18, 2005, he was returned to SBCC and was once again placed in segregation. The next evening he was put on a mental health watch because he was paranoid, delusional, and agitated. On October 22, 2005, he was cleared from mental health watch and returned to the SMU. That night medical staff failed to bring him his medication. An hour later, officers found him hanging from the bars on his cell window. On his cell desk he had written in soap “Dust in the wind.” After Mr. B’s death, the DOC conducted a mortality review that concluded that, because of his mental illness, he should not have been housed in segregation.
44. Mr. C was 38 years old when he hung himself in the segregation unit at SBCC on January 29, 2007. Mr. C had a long history of mental illness and had been chronically depressed for years. This was not the first time Mr. C had attempted to kill himself in segregation. Mr. C suffered from sleep apnea and in March, 2006, tried to hang himself with his breathing machine in the SBCC segregation unit. When he was unable to do so, he smashed the machine to find something sharp he could use to slice his neck. When that failed, he started eating the machine,

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hoping that it would cause internal bleeding that would kill him. He also cut his legs and arms. Mr. C told mental health staff that he could not handle segregation. Because of this suicide attempt, Mr. C was transferred to Bridgewater State Hospital, but was returned to SBCC approximately one month later. His Bridgewater clinicians believed that the suicide attempt was a reaction to “unbearable feelings in conjunction with his being socially isolated and without his usual sources of support” in segregation.
45. Mr. D is a 38-year-old prisoner currently confined in the DDU at MCI-Cedar Junction and has been in segregation continuously for almost a year. Mr. D has been receiving mental health treatment since he was a child and has been diagnosed with severe depression. Since being placed in segregation, Mr. D has seriously attempted to commit suicide three times, swallowing a razor on the second attempt. He has been transferred to Bridgewater State Hospital following his attempts, but each time was returned to prison and to segregation within 30 days. He endures chronic physical pain that is poorly managed. This chronic pain, together with the isolation, causes his depression to be even more severe. He continues to have suicidal feelings.
46. Mr. E is a 38-year-old prisoner with bi-polar illness who is currently confined in the DDU at MCI-Cedar Junction. Prior to his incarceration, he was committed to a series of state mental hospitals for a total of five years. He also spent a significant portion of his youth in inpatient and residential mental health facilities. Mr. E has been in segregation continuously for over two years. Although his original prison sentence has long since expired, his mental illness causes him to accumulate disciplinary reports and new criminal charges that keep him incarcerated and in segregation. In segregation, Mr. E experiences suicidal depressions. During these periods, he has cut his wrists, swallowed razors and batteries, and tied a noose around his neck in an attempt to strangle himself to death. Mr. E has asked for therapies like anger management and stress management that might help him break this cycle, but has been told that these types of programs are not available in the DDU. His mental health treatment consists of seeing a counselor once a month and a psychiatrist once every two months, both usually at cellfront and not in private.

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47. Mr. F is a 30-year-old prisoner currently confined in 10 Block at MCI-Cedar Junction who has been in segregation for over two years. Mr. F has been diagnosed with Major Recurrent Depression and has attempted suicide six times in the last three years. These suicide attempts have led to his transfer to Bridgewater State Hospital for evaluation. Mr. F reports that Bridgewater clinicians have stated that he cannot cope with the conditions in segregation and that it is contraindicated for him. In spite of these recommendations, he remains in segregation at MCI-Cedar Junction.
48. Mr. G is a 30-year-old prisoner currently confined in the DDU at MCI-Cedar Junction. Mr. G has been in segregation for over a year. Mr. G has received mental health treatment since he was 10 years old. He is often acutely psychotic. He stays up at night arguing with voices in his head that tell him his entire family has been murdered or killed in a car accident. On one occasion, he smashed his television as a result of an argument with these voices. Mr. G has been transferred to Bridgewater on several occasions but each time has been returned to the DDU within 30 days.
49. Mr. H is a 41-year-old prisoner currently confined in the DDU at MCI-Cedar Junction. Mr. H has been in segregation since 2001. Mr. G has been diagnosed with Bi-Polar Disorder and Personality Disorder Not Otherwise Specified. The isolation inherent in segregation exacerbates his mental illness, and causes him to become paranoid. He has had multiple hospitalizations at Bridgewater State Hospital, where clinicians have written that he should not be sent back to segregation. In spite of these recommendations, he is always returned to segregation when he leaves Bridgewater. Mr. H is unable to cope with segregation and as a result, keeps accumulating more and more disciplinary reports. These infractions in turn prolong his isolation and he continues to deteriorate.
50. Mr. I is a 34-year-old prisoner recently released from segregation in 10 Block at MCI-Cedar Junction. Except when at Bridgewater State Hospital, he had been in some form of segregated confinement since October, 2004. Mr. I has been diagnosed with severe, recurrent depression. In the summer of 2005, having lost over twenty pounds as a result of worsening

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depression, he was transferred from segregation to Bridgewater State Hospital. After a few weeks at the hospital, he was returned to segregation at SBCC. This was the first of many times that he cycled back and forth between Bridgewater and segregation. In the autumn of 2005, he slit his throat from ear to ear and was committed to Bridgewater State Hospital for treatment. In February, 2006, he was discharged back to SBCC and placed in segregation despite a recommendation from Bridgewater clinicians that segregation was clinically contraindicated. A few days later, he attempted suicide again and was sent back to Bridgewater. In March, 2006, he was returned to segregation at SBCC, but was returned to Bridgewater a few days later. In April, 2006, he was discharged from Bridgewater to MCI-Cedar Junction, where he was placed first in 10 Block and then in a DSU, where he was allowed out of his cell for only one hour a day, and only at a time when all other inmates are locked in their cells (usually at night). In September, 2006, he was transferred to 10 Block to await disciplinary action for lighting a fire in his cell. He remained there until the middle of February, 2007.
51. Mr. J is a 29-year-old prisoner currently in segregation at SBCC, where he has been for over a year awaiting out of state placement. Mr. J was lead poisoned as a child. Psychological testing begun prior to his being placed in segregation found him to be functioning at a third grade level. More psychological testing is indicated, but has not been completed because of insufficient correctional staff in the segregation facility to support the multi-day testing. Mr. J has been diagnosed with Psychotic Disorder, Not Otherwise Specified, and is currently on antipsychotic medication. His mental state and coping abilities are deteriorating in segregation as he continues to wait for an (unlikely) out of state transfer.
52. Mr. K is a 33-year-old prisoner with attention deficient hyperactivity disorder and post traumatic stress disorder. He also suffers from severe depression and is psychotic at times. Although not currently in segregation, he has been in segregation at SBCC and several other facilities. In 2006, he twice attempted to commit suicide, hanging himself from a noose each time. Prior to each attempt he repeatedly but unsuccessfully asked correctional officers to see mental health staff. In his first hanging attempt, his heart stopped and he had to be taken to an

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outside hospital by helicopter in order to be saved. He also nearly died on the second attempt, losing all control of his bodily functions. He survived again, but remains subject to placement in segregation where his access to mental health staff is dependent upon correctional officers who are often unresponsive to his pleas for help.
53. Mr. L is a 24-year-old prisoner currently confined in the DDU at MCI-Cedar Junction. Mr. L has been incarcerated since he was 17-years-old and has spent most of that time in the DDU. Mr. L has been diagnosed with severe borderline personality disorder and possible seizures, with a pre-incarceration history of hospitalization for hallucinations, delusions, depression, and anxiety. Scars from self-mutilation cover his face, neck, torso, stomach, and arms. Mr. L reports having swallowed objects such as a piece of glass, cable wires, and an arm of his glasses. He has been sent to Bridgewater State Hospital for psychiatric evaluation at least 15 times, but has repeatedly been returned to his DDU cell rather than be committed to Bridgewater full-time, even though Bridgewater evaluators have noted that he poses a substantial risk of harm to himself and others. While Mr. L is not serving a long prison sentence, he has accumulated new criminal charges in prison. It is likely that these behaviors are due in part to his mental illness, which has been aggravated by segregation and lack of adequate treatment. He is currently serving a sentence for an assault carried out while incarcerated and has charges pending for another such assault. He has reported extreme stress from segregation: “I’m locked in a box. I feel defeated. I’m thinking only about one thing: the last day of my life.”
54. Mr. M is a 56-year-old prisoner currently committed to Bridgewater State Hospital. Mr. M has a long history of mental illness, including delusional disorder, bipolar disorder, and schizoaffective disorder. He has been hospitalized many times, including eight previous admissions to Bridgewater State Hospital. Mr. M was placed in segregation at MCINorfolk in November 2005 for behavior related to his mental illness. His mental health records indicate that he became highly anxious and demonstrated persecutory and paranoid delusions in segregation. He received over 30 disciplinary reports for reasons related to his mental illness, but often refused court ordered medications because he believed that mental health staff were

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trying to poison him. On September 1, 2006, Mr. M was transferred to Bridgewater State Hospital because he had become floridly manic, trashed his cell, and thrown a cup of water at a nurse. On September 18, 2006, Bridgewater filed a petition for his commitment, concluding that he had extreme difficulty coping while in segregation, was increasingly paranoid and delusional, and would be at risk of becoming suicidal should he return to MCI-Norfolk.
55. Mr. N is a 44-year-old prisoner who, until his recent release from the DDU at MCI-Cedar Junction, had been confined in segregation for more than four years. Although no longer in the DDU, he has not been returned to general population. Mr. N is mentally retarded and is unable to read or write. He has attempted suicide several times, starting at age 13. Mr. N’s mental health records indicate that he has difficulty in the DDU, and while in the DDU experienced sleep problems, increased anxiety, and both visual and auditory hallucinations. In July, 2006, Mr. N received a psychological evaluation that concluded he is clinically contraindicated for extended periods of segregation because of his significant deficits and lack of adaptive coping mechanisms. Nevertheless, Mr. N remained in the DDU for another six months.
56. Mr. O is a 32-year-old prisoner currently confined in the DDU, where he has been for more than three years, and from which he is not scheduled to be released until he completes his criminal sentence. Mr. O has a long history of mental health issues, starting at least as early as third grade. His diagnoses include bipolar disorder, post traumatic stress disorder, and antisocial personality disorder. He has tried to commit suicide several times in the DDU, and has been placed in four-point restraints on numerous occasions. He suffers from severe insomnia and often becomes agitated and paranoid. Mr. O reports that in December, 2006, he was placed in an observation cell in the DDU because he cut his wrist. When correctional staff refused to give him a blanket, he smeared feces over his body and refused to take a shower or clean himself for several days.
57. Mr. P is a 27-year-old prisoner who has been diagnosed with schizophrenia, anxiety, and depression. Although he was transferred out of segregation in December, 2006, he was in segregation at SBCC for almost a year and a half, awaiting an out of state transfer. Mr. P

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has received mental health treatment since he was a child. He is currently taking anti-anxiety, anti-psychotic, and anti-depressant medications. While in segregation, Mr. P attempted to commit suicide four times. On September 28, 2006, Mr. P’s clinicians informed DOC administrators by letter that Mr. P cannot tolerate segregation. Nevertheless, Mr. P remained in segregation for approximately three additional months. Like many prisoners with mental illness, Mr. P has not been transferred out of state because other states often reject prisoners with mental illness.
58. Mr. Q is a 28-year-old prisoner who was housed until the end of February, 2007, in a segregation unit at the North Central Correctional Institution at Gardner; he had been confined almost continuously in different DOC segregation units since May 2006. Mr. Q has a long history of mental illness and is diagnosed with bipolar disorder. Mr. Q has been hospitalized many times in the community. While in segregation, Mr. Q attempted suicide by hanging himself and cutting his arms, and has frequently required mental health watch. Recently, he bruised his head by repeatedly banging it against the wall. He reports that he sees demons when he looks at the cell walls. Even though he takes multiple medications, including an antipsychotic, a mood stabilizer, an anti-anxiety drug, and an antidepressant, the stress of segregation causes him to decompensate.
59. Mr. R is a 43-year-old prisoner with post traumatic stress disorder and major depression with psychotic features. Mr. R is dyslexic and attended special education classes throughout his schooling. He was placed in a mental institution when he was 14 years old. Except for a 30 day period at Bridgewater State Hospital, he has been confined in the segregation unit at SBCC since July, 2005, not for discipline but because he is reported to have enemies in general population. In November, 2006, a psychiatrist at SBCC referred him to Bridgewater, noting that he had become very depressed and delusional, believed that “seven Spanish-speaking inmates” were plotting to kill him, and that he was “was staying up all night keeping vigil.” He also was “missing meals because he thinks the food is poisoned.” At Bridgewater State Hospital, he resumed taking anti-psychotic, anti-anxiety, and anti-depressant medications that he had

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refused in segregation. As a result, his symptoms abated somewhat, and he was returned to segregation at SBCC—despite a warning from the Bridgewater evaluator that segregation could cause him to decompensate and “quite possibly [cause the] need [for] a period of inpatient psychiatric hospitalization.”
Deliberate Indifference 60. Defendants have long been aware that confinement in segregation poses a high risk of harm to prisoners with mental illnesses. 61. In 1989, the Governor’s Special Advisory Panel on Forensic Mental Health recommended that the DOC establish a comprehensive mental health center with a 45 to 60 bed high security residential treatment unit and a 6 to 10 bed crisis residence unit that could serve as an alternative to both segregation and Bridgewater State Hospital. 62. In 1990, the DOC’s mental health vendor at the time, Prison Mental Health Service, had extensive discussions with the DOC about the need for a comprehensive treatment unit for prisoners who would otherwise be confined in segregation. The Prison Mental Health Service recommended that this unit be for “chronically psychotic inmates who are currently too ill to function within the general prison population, but are too violent, disruptive, or not acutely psychotic enough to remain at Bridgewater State Hospital, and who therefore spend most of their sentence in segregation” and “inmates who repeatedly engage in self-mutilating behavior, not because they are either suicidal or psychotic, but because of a very severe personality disorder, and who also therefore spend most of their time in segregation.” Letter from James Gilligan and Marie King to DOC Associate Commissioner Frank Jones, dated October 24, 1990. These are precisely the type of prisoners who still languish in DOC segregation units. Strikingly, some of the very individuals who were mentioned by name in the October 24, 1990 letter as examples of prisoners who are inappropriately and unnecessarily housed in segregation remain there today. 63. In 1997, an independent panel investigating the death of John Salvi, a prisoner who committed suicide while in “lockdown” at MCI-Cedar Junction, also recognized the deleterious effects of segregation on inmates, whether or not they were currently identified as

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“open mental health cases.” The panel recommended daily mental health visits to all inmates who were locked in their cells 23 hours a day “to provide monitoring of their mental condition and an opportunity for meaningful social contact and mental health counseling.” REPORT ON THE PSYCHIATRIC MANAGEMENT OF JOHN SALVI IN MASSACHUSETTS DEPARTMENT OF CORRECTION FACILITIES 1995-1996 (submitted to the Massachusetts Department of Correction by the University of Massachusetts Medical Center Department of Psychiatry on January 31, 1997), at 38. The purpose of the visits to these inmates who were not “open mental health cases” would be to “help to identify and protect inmates who are becoming quietly despondent and suicidal in such conditions.” Id. This report also recommended that the “DOC . . . consider the appropriateness of creating residential special needs treatment programs, e.g., mental health, dementia, head injured, within one or more of its secure institution.” Id. at 42.
64. More recently, in early 2005, the DOC assembled a Medical Review Panel to assist the Department of Correction Advisory Council in assessing the overall quality of medical and mental health care in the DOC. In August, 2005, the Mental Health Services Subgroup of this panel filed a report stating that it had “interviewed a number of prisoners [in various DOC segregation units] whose mental illness appears to have been painfully aggravated by the severe conditions of segregation.” Significantly, the subgroup concluded that because DOC has “no alternative to segregation for mentally ill prisoners who are either too aggressive or too vulnerable for general population . . . many mentally ill prisoners are languishing – sometimes for years – in segregation units.” Governor’s Commission on Correction Reform, REPORT OF MENTAL HEALTH SERVICES SUBGROUP (August 24, 2005).
65. After the suicides of Mr. A and Mr. B in 2005, the DOC hired consultants to conduct mortality reviews. According to the Hayes Report, these mortality reviews concluded that, because of their serious mental illnesses, neither victim should have been placed in segregation. Hayes Report at 16. The mortality reviews recommended that DOC create a work group to review policies and practices relating to the placement of mentally ill prisoners in segregation to ensure that they meet national standards, and that DOC work to develop an

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effective alternative to segregation for inmates suffering from serious mental illness. Hayes Report at 17. The recommendations of the mortality reviews were ignored.
66. DOC’s current vendor, University of Massachusetts Correctional Health Program (“UMCHP”), has repeatedly urged the DOC to establish a high-security residential treatment facility as an alternative to segregation for prisoners with mental illness. UMCHP has submitted a comprehensive proposal to the DOC describing the need for such a unit and how it should be operated, including discussions of the physical plant needs, clinical staffing matrix, training and selection of security staff, and the type of programming that should be offered. DOC has rejected each of these proposals.
67. On March 20, 2006, the Legislature’s Joint Mental Health and Substance Abuse Committee held an oversight hearing at which Dr. Kenneth Appelbaum, the Director of Mental Health for the UMCHP, testified that DOC has a “dire need” for a high security residential treatment facility as an alternative to segregation for prisoners with mental illness, and that the number of mental health clinicians is seriously inadequate. Despite this testimony, and testimony from correctional experts and family members of prisoners who committed suicide in segregation about the extraordinarily destructive impact of segregation on prisoners with mental illnesses, Defendant Dennehy told the Committee that DOC’s existing policies adequately protect prisoners with mental illness from inappropriate placement in segregation.
68. In September, 2006, the DOC commissioned a suicide prevention assessment by Lindsay M. Hayes, Project Director of the National Center on Institutions and Alternatives, in order to “assess current practices, as well as offer any appropriate recommendations for improving DOC suicide prevention policies and practices,” in an effort to “reduce the likelihood of future inmate suicides within the Massachusetts Department of Correction.” Hayes Report at 1. The Hayes Report recommends that DOC develop “effective alternative placement options for those inmates suffering from severe and persistent mental illness, but whose behavioral difficulties and security needs require more strict containment than can be afforded in general population.” Id. at 17-18. Although the Hayes Report states that this should be “among the

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highest priorities facing the DOC in its efforts to improve suicide prevention practices,” id. (emphasis in original), the DOC’s Corrective Action Plan simply refers to the proposals for a residential treatment unit in maximum security and a behavioral management unit that are contained in its pending Request for Response (“RFR”) for a new contract for medical and mental health services. 2007 DOC CORRECTIVE ACTION PLAN ADDRESSING RECOMMENDATIONS IN TECHNICAL ASSISTANCE REPORT ON SUICIDE PREVENTION WITHIN THE MASSACHUSETTS DEPARTMENT OF CORRECTION (DRAFT) 6-7.
69. The Corrective Action Plan and RFR fail to address the problem of mentally ill prisoners in segregation in most important respects. These include the failure to establish exclusionary criteria that will ensure that prisoners with serious mental disorders are not confined in segregation. The RFR suggests that the proposed residential treatment unit will be primarily for mentally ill prisoners now in general population, and will not be an alternative to segregation. In addition, the RFR and the Corrective Action Plan address only the role of mental health staff and do not address physical plant issues, correctional officer staffing, and rehabilitation program staffing. Furthermore, in the Corrective Action Plan, the DOC acknowledges that it does not even know the cost of a residential treatment unit, except that it will be “significant in scope.” As has occurred in the past with previous proposals for residential treatment units, financial limitations and other concerns are likely to block implementation of reform.
70. In addition to studies and investigations undertaken in Massachusetts, defendants are aware that numerous federal courts have ruled that it is unconstitutional to confine a seriously mentally ill prisoner in segregation. See e.g., Jones 'El v. Berge, 164 F.Supp.2d 1096, 1126 (D. Wis. 2001)(ordering “seriously mentally ill” prisoners not to be housed in a supermax facility); Ruiz v. Johnson, 37 F.Supp.2d 855, 915 (S.D. Texas 1999) (evaluating conditions in administrative segregation units and concluding that “As to mentally ill inmates… the severe and psychologically harmful deprivations of [] administrative segregation units are, by our evolving and maturing society’s standards of humanity and decency, found to be cruel and unusual punishment.”); Madrid

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v. Gomez, 899 F. Supp. 1146 (N. D. Cal. 1995) (recognizing the value of segregation for disciplinary and security reasons, id. at 1262, but finding that “the continued confinement [in segregation, for three years or less as reflective of the data before the court]. . . constitutes cruel and unusual punishment in violation of the Eighth Amendment for two categories of inmates: those who are already mentally ill and those who. . . are at an unreasonably high risk of suffering serious mental illness as a result of the present conditions [in segregation].” Id. at 1267). Under these decisions, the types of mental disorder that warrant exclusion from segregation include not only individuals with a history of psychotic disorders, such as schizophrenia or bipolar disorder, but also those with a variety of other conditions, including, but not limited to, developmental disabilities, certain phobias, post traumatic stress disorder, and severe personality disorders, especially where there is a history of self-injurious behavior.
71. As employees and representatives of the DOC, each of the individually named defendants are aware of each of the reports and recommendations described above.
COUNT I CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
72. Plaintiff DLC restates and realleges paragraphs 1-71 as if fully set forth in this Count I.
73. By their policies, practices and acts, defendants Kathleen Dennehy, James Bender, Veronica Madden, John Marshall, and Timothy Hall violate the rights of convicted prisoners with mental illness to be free from cruel and unusual punishment as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution, as enforceable through 42 U.S.C. § 1983.
74. As a matter of policy and practice, defendants Kathleen Dennehy, James Bender, Veronica Madden, John Marshall, and Timothy Hall impose periods of segregated confinement upon convicted prisoners with serious mental illness that lead to the deterioration of their mental health.

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75. Defendants Kathleen Dennehy, James Bender, Veronica Madden, John Marshall, and Timothy Hall have long been aware of the consequences of these conditions of confinement through meetings with and correspondence from legislative hearings, advocacy organizations, prisoner grievances and other means, but have failed to take reasonable corrective action.
76. By imposing periods of confinement while aware of the deleterious effect that it will have on prisoners’ mental health, Defendants Kathleen Dennehy, James Bender, Veronica Madden, John Marshall, and Timothy Hall act with deliberate indifference to the serious medical needs of, and the substantial risk of serious harm to, prisoners with mental illnesses.
COUNT II VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973
77. Plaintiff DLC restates and realleges paragraphs 1-71 as if fully set forth in this Count II.
78. Plaintiff’s constituents are qualified individuals with disabilities as defined in Section 504 of the Rehabilitation Act of 1973. They have mental impairments that substantially limit one or more major life activity, including but not limited to thinking, concentrating, and interacting with others, including their ability to control their behavior; they have records of having such an impairment; or they are regarded as having such an impairment. As state prisoners, all Plaintiff’s constituents meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by defendant DOC. See 29 U.S.C. § 794.
79. Defendant DOC administers a program or activity that receives federal financial assistance.
80. Defendant DOC discriminates against mentally disabled prisoners by failing to provide reasonable accommodation for their disabilities.
81. Defendant DOC discriminates against mentally disabled prisoners solely on the basis of their disabilities in violation of Section 504. 29 U.S.C. § 794.

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82. In placing prisoners with mental illness in disciplinary and administrative segregation, Defendant DOC has denied prisoners with mental illnesses the benefits of the facility’s services, programs and activities, including school, recreation, exercise and mental health services, thus discriminating against the Plaintiff’s constituents on the basis of their disability in violation of 29 U.S.C. §794.
COUNT III VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
83. Plaintiff DLC restates and realleges paragraphs 1- 71 as if fully set forth in this Count III.
84. Plaintiff’s constituents are qualified individuals with disabilities as defined in the Americans with Disabilities Act (“ADA”). They have mental impairments that substantially limit one or more major life activity, including but not limited to thinking, concentrating, and interacting with others, and controlling their behavior. As state prisoners, all Plaintiff’s constituents meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by defendant DOC. 42 U.S.C. § 12102(2); 42 U.S.C. § 12131(2).
85. Defendant DOC is a public entity as defined under Title II of the ADA, 42 U.S.C. § 12131(1)(B).
86. Defendant DOC knowingly and consistently discriminates against mentally disabled prisoners by failing to provide them with reasonable accommodation.
87. By failing to provide individualized assessments of the mental health needs and treatment requirements of prisoners with mental illness, and by placing prisoners with mental illness in disciplinary and administrative segregation, defendants have denied prisoners with mental illness the benefits of the facility’s services, programs and activities, including school, recreation, exercise, and mental health services, thus discriminating against the Plaintiff’s constituents on the basis of their disability in violation of 42 U.S.C. § 12132. Discrimination

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against prisoners with mental illness occurs particularly because such prisoners cannot receive mental health services sufficient to counteract the effects segregated confinement has on mentally ill prisoners which is distinct from the impact it has on prisoners who are not mentally ill.
88. Defendant DOC discriminates against mentally disabled prisoners on the basis of their disabilities.
89. In placing prisoners with mental illnesses in disciplinary and administrative segregation, the Defendant DOC (a) has failed to furnish a reasonable accommodation to prisoners with disabilities; (b) punishes prisoners with mental illnesses for disability related conduct; and (c) deprives prisoners with mental illnesses of access to adequate mental health services by placing them in segregation.

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PRAYER FOR RELIEF Prisoners with mental illness have suffered and will continue to suffer immediate and irreparable injury as a result of the unlawful acts, omissions, policies, and practices of the defendants as alleged herein, unless they are granted the system-wide relief requested. The Plaintiff has no adequate remedy at law to protect its constituents from this harm. The injunctive relief sought by Plaintiff is necessary to prevent continued and further injury. WHEREFORE, Plaintiff requests that this Court grant it the following relief: a. Issue a preliminary injunction against defendants DOC, Kathleen Dennehy, James
Bender, Veronica Madden, John Marshall, and Timothy Hall, their agents, officials, employees, and all persons acting in concert with them, requiring them to institute and follow practices specifically designed prevent the placement of seriously mentally ill prisoners in segregated conditions. b. Issue a permanent injunction against defendants DOC, Kathleen Dennehy, James Bender, Veronica Madden, John Marshall, and Timothy Hall, their agents, officials, employees, and all persons acting in concert with them, under color of state law or otherwise, from subjecting prisoners with mental illness to the unconstitutional and illegal acts, conditions, and practices described in this Complaint. c. Issue a judgment against defendants Kathleen Dennehy, James Bender, Veronica Madden, John Marshall, and Timothy Hall declaring that the acts, omissions, policies, and practices of these defendants with regard to prisoners with mental illnesses are unlawful and constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. d. Issue a judgment against defendant DOC declaring that its acts, omissions, policies, and practices with regard to prisoners with mental illnesses constitute

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discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 794 and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132. e. Order defendant DOC to promulgate a formal policy stating that prisoners with serious mental disorders may not be housed in segregated conditions (defined as 23 hour solitary in-cell confinement), including those awaiting action and closed custody, for more than one week. f. Order defendant DOC to construct a maximum security residential treatment unit or units as an alternative to segregation for prisoners with serious mental disorders. This facility must have sufficient capacity for all prisoners with serious mental disorders who cannot be housed in the general prison population. This facility must provide for (i) at least 15 hours per week of structured out-of-cell activities, including therapy and rehabilitation, and (ii) at least 10 hours per week of out-of-cell time for unstructured activity, such as recreation and showers. g. Appoint an independent mental health professional who is empowered and authorized to monitor on an ongoing basis the process of ensuring that prisoners with serious mental illness are screened out of segregation and the operation of the residential treatment unit to ensure compliance with the above-described policies. h. Order defendants DOC, Kathleen Dennehy, James Bender, Veronica Madden, John Marshall, and Timothy Hall, their agents, officials, employees, and all persons acting in concert with them, under color of state law or otherwise, to take all other actions necessary to provide sufficient mental health treatment programs and services to prisoners with serious mental illnesses. i. Award Plaintiff its reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988 and other applicable law. j. Grant such other and further relief as this Court considers just and proper.

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March 8, 2007
LITDOCS/658511.8

Disability Law Center, Inc.,
By its attorneys,
Cynthia M. Guizzetti, BBO #653858 Robert B. Baker, BBO #654023 Allyson Kurker, BBO #665231 BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, MA 02110-1726 (617) 951-8000
Richard M. Glassman, BBO #544381 Karen Talley, BBO #644764 Nancy Svirida, BBO #663749 DISABILITY LAW CENTER, INC. 11 Beacon Street, Suite 925 Boston, MA 02108 (617)723-8455
James Pingeon, BBO #541852 Leslie Walker, BBO #546627 Bonnie Tenneriello, BBO #662132 Joel Thompson, BBO #662164 MASSACHUSETTS CORRECTIONAL LEGAL SERVICES, INC. 8 Winter Street, 11th Floor Boston, MA 02108 (617) 482-2773
Robert Fleischner, BBO #171320 CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 (413) 587-6265
28

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DISABILITY LAW CENTER, INC.,

Plaintiff,

v.

CIVIL ACTION

NO. 07-10463-MLW

MASSACHUSETTS DEPARTMENT OF CORRECTION, KATHLEEN DENNEHY, COMMISSIONER OF THE MASSACHUSETTS DEPARTMENT OF CORRECTION, in her official capacity; JAMES BENDER, DEPUTY COMMISSIONER OF THE MASSACHUSETTS DEPARTMENT OF CORRECTION, in his official capacity; VERONICA MADDEN, ASSOCIATE COMMISSIONEROF REENTRY AND REINTEGRATION OF THE MASSACHUSETTS DEPARTMENT OF CORRECTION, in her official capacity; JOHN MARSHALL, JR., ACTING SUPERINTENDENT OF MCI-CEDAR JUNCTION AND ASSISTANT DEPUTY COMMISSIONER – NORTHERN SECTOR, in his official capacities; and TIMOTHY HALL, ACTING ASSISTANT DEPUTY COMMISSIONER – SOUTHERN SECTOR, in his official capacity,

Defendants.

ANSWER

Introduction These paragraphs contain only an introductory statement that requires no
responsive pleading. To the extent that these paragraphs allege that the Department of Correction and each individual defendant is acting in violation of the rights of Massachusetts prisoners with mental illness, the defendants deny all allegations contained in these paragraphs. In further answer, the defendants assert that the Department of Correction is committed to providing safe and humane treatment for all inmates

2
committed to its care and custody, including inmates with mental illness, while also fulfilling its mandate of maintaining safety and security within the Commonwealth’s correctional institutions. The defendants deny that they have acted with deliberate indifference towards inmates with mental illnesses, and further deny that they subject inmates with mental illnesses to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. The defendants state that all other allegations contained in these paragraphs are conclusions of law that require no responsive pleading. Parties
1. Defendants admit that the Disability Law Center is the plaintiff and is a not-for-profit corporation. All other allegations contained in this paragraph are conclusions of law that require no responsive pleading.
2. Defendants admit that the Department of Correction is an agency within the Executive Office of Public Safety of the Commonwealth of Massachusetts.
3. Defendants deny that Kathleen Dennehy is the Commissioner of Correction, and in further answering state that James Bender is the Acting Commissioner of Correction and that his duties are generally as listed in Massachusetts General Law, chapter 124, section 1. All other allegations contained in this paragraph are conclusions of law that require no responsive pleading.
4. Defendants deny that James Bender is the Deputy Commissioner of Correction, and in further answering state the duties of Deputy Commissioner of Correction include serving as the appellate authority for prison disciplinary convictions in

3
which a Department Disciplinary Unit sanction is recommended. All other allegations contained in this paragraph are conclusions of law that require no responsive pleading.
5. Defendants admit that Veronica Madden is the Associate Commissioner of Reentry and Reintegration, and has supervisory authority over the Division of Health Services. Defendants deny that Ms. Madden has supervision of mental health care, and in further answering state that the Department of Correction has, at all times relevant to the complaint, contracted with a health services provider for the provision of medical and mental health services to inmates within the Department of Correction’s custody. All other allegations contained in this paragraph are conclusions of law that require no responsive pleading.
6. Defendants deny that John Marshall, Jr. is the Assistant Deputy Commissioner – Northern Sector and acting Superintendent of MCI-Cedar Junction, and further deny that he has the authority for supervising the operations of eight correctional facilities. All other allegations contained in this paragraph are conclusions of law that require no responsive pleading. In further answer, defendants state that Timothy Hall is the Assistant Deputy Commissioner – Northern Sector and that Peter St. Amand is the Superintendent of MCI-Cedar Junction.
7. Defendants deny that Timothy Hall is the Assistant Deputy Commissioner – Southern Sector, and further deny that he has the authority for the supervising the operations of nine correctional facilities. All other allegations contained in this paragraph are conclusions of law that require no responsive pleading. In further answer, defendants state that Kenneth Nelson is the Assistant Deputy Commissioner – Southern Sector.

4

Jurisdiction and Venue

8. pleading.

This paragraph contains only conclusions of law that require no responsive

9. pleading.

This paragraph contains only conclusions of law that require no responsive

10. This paragraph contains only conclusions of law that require no responsive pleading.

Facts

Background and Types of Segregated Confinement

11. Defendants admit the first sentence of this paragraph only to the extent

that there are inmates in Massachusetts prisons who have been diagnosed with mental

illness as the term “mental illness” may be broadly defined. In answering further, the

term “mental illness” is defined in a Massachusetts Department of Mental Health

regulation at 104 CMR 27.05(1) as “a substantial disorder of thought, mood, perception,

orientation, or memory which grossly impairs judgment, behavior, capacity to recognize

reality or ability to meet the ordinary demands of life, but shall not include alcoholism or

substance abuse which is defined in M.G.L. c. 123, § 35.” In further answer, defendants

state that the determination whether an inmate is to be an open mental health case is a

clinical determination made by qualified mental health clinicians on a case by case basis.

Defendants deny the characterization as to the prevalence of mental illness in

Massachusetts prisons, and in further answer state that a rising prevalence of mental

illness in prisons is a national trend. Defendants deny the factual allegation contained in

the third sentence of this paragraph that the percentage of mentally ill prisoners in

segregated confinement is much higher than the percentage of mentally ill prisoners in

the general population, and in further answer, state that the percentages would depend

5

upon how the term “mentally ill prisoner” is defined. In further answer, defendants state

that as a general matter, a higher percentage of the population in the Department

Disciplinary Unit (“DDU”) have open mental health cases compared with general

population, and that a higher percentage of each facility’s segregation population have

open mental health cases compared with each facility’s general population.

12. Defendants admit the factual allegation contained in the first sentence of

this paragraph. Defendants deny the factual allegation contained in the second sentence

of this paragraph, but in further answering state that, on April 20, 2007, the Department

of Correction segregation bed and inmates statistics are as follows:

Facility
Department Disciplinary Unit MCI-Cedar Junction SBCC Old Colony Correctional Center NCCI-Gardner MCI-Concord MCI-Norfolk MCI-Shirley MCI-Framingham Treatment Center Total

Number of Segregation Beds in the Unit
124 90 (30 of 90 not utilized) 96 (33 of 96 not utilized) 31
23 60 99 (60 of 99 not utilized) 59 31 12 625 (123 of 625 not utilized)

Number of Inmates as of April 20, 2007
102 51 63 31
9 60 37 57 31 3 444

13. Defendants admit the factual allegation contained in the first sentence of

this paragraph only to the extent that the Department of Correction operates the

Department Disciplinary Unit (“DDU”) and Special Management Units (“SMU”).

Defendants deny the factual allegation that the Department of Correction operates any

unit designated as a Departmental Segregation Unit (“DSU”), and in further answering

state that certain restrictive housing units require the procedures set forth in the

6
Department of Correction’s Departmental Segregation Unit regulation, 103 CMR 421, to be followed. Defendants admit the factual allegation contained in the second sentence to the extent that the DDU, SMU’s and restrictive housing units are each intended to serve a different purpose.
14. Defendants admit the factual allegations contained in the first and second sentences of this paragraph. Defendants deny the factual allegation that a DDU sentence can be extended for misbehavior in the DDU, and in further answer state that misbehavior in the DDU may result in an additional DDU sentence if the inmate is duly convicted pursuant to 103 CMR 430, and that a guilty finding on a major disciplinary report may result in the DDU inmate not receiving credit for the monthly period in which the offense occurred and the loss of certain privileges. Defendants deny the allegation that an inmate’s sentence to the DDU cannot be reduced, and in further answering state that any inmate in the DDU can be released before the completion of his sentence by order of the Superintendent.
15. Defendants admit the factual allegations contained in this paragraph. 16. The defendants deny the first sentence contained in this paragraph, as the regulation governing Department Segregation Units, 103 CMR 421, speaks for itself. The defendants further deny that a DSU currently exists within the Department of Correction, but rather that the procedures as set forth in 103 CMR 421 are met in two restrictive housing units in the East Wing of MCI-Cedar Junction. The defendants deny the second sentence of this paragraph, and in further answer state that pursuant to 103 CMR 421.15(2)(c), upon the commitment of an inmate to a restrictive housing unit, a conditional release date of up to six months is set “based on the specific aspects of the

7
inmate's record and other information on which the recommendation is based, including any mitigating information,” and that said conditions are reasonably imposed for the purpose of maintaining safety and security within the correctional system. In further answer, defendants state that pursuant to 103 CMR 421.19, inmates placed in a restrictive housing unit are reviewed monthly for the purpose of evaluating “the current behavior of the inmate including disciplinary reports, a summary of the program involvement of the inmate, including, for example, education, counseling and recreation activities, and an evaluation of the behavior and attitude of the inmate, and recommendations, if any, for releasing the inmate from the DSU.” In further answer, defendants state that inmates in the restrictive units of MCI-Cedar Junction receive three hours a day of out of cell compared with four hours out of cell for general population. The defendants deny the factual allegations contained in the third sentence of this paragraph, and in further answer, state the longest current period of residence in a restricted unit pursuant to 103 DOC 421 is approximately fourteen (14) months.
17. The defendants admit that there are two restrictive housing units in the East Wing of MCI-Cedar Junction for which the procedural requirements of 103 CMR 421 are followed, and admit that there are approximately 45 cells in each of the two restrictive housing units in the East Wing of MCI-Cedar Junction. Defendants admit the factual allegation contained in the second sentence contained in this paragraph.
18. Defendants deny the characterization of the SMU as a “catchall,” and in further answer, state that the SMU’s are operated in accordance with 103 CMR 423. By way of further answer, defendants state that the Special Management Unit regulation, 103 CMR 423, speaks for itself, and that the reasons for placement in a SMU include

8
administrative segregation, protective custody, and disciplinary detention, as set forth in 103 CMR 423.07. Defendants further state that inmates who have been deemed in need of protective custody, are ordinarily housed in general population conditions at either the medium security protective custody unit at the Old Colony Correctional Center or the maximum security protective custody unit at Souza Baranowski Correctional Center, which are operated pursuant to 103 DOC 422. Defendants deny the characterization of “several years” in the third sentence of this paragraph. In further answer, defendants state that inmates are held in the SMU only so long as the reason for their housing there dictates. In further answer, defendants state that the SMU is not designed to be a permanent housing unit and, while there is one inmate who has been held in the SMU at MCI-Cedar Junction for more than three years, this is because this inmate refuses to leave the SMU and enter general population.
19. Defendants admit the factual allegation contained in this paragraph. 20. Defendants admit the factual allegations contained in this paragraph only to the extent that prisoners may be held on restrictive confinement in their cells on a temporary basis while awaiting action on a referral to a restrictive housing unit at MCICedar Junction and the Old Colony Correctional Center as set forth in 103 CMR 421.08, or under investigation for a disciplinary offense or have been charged or found guilty of a disciplinary offense as set forth in 103 CMR 430.21. In further answer, defendants state that on infrequent occasions, restrictive cell confinement for short periods is utilized at MCI-Framingham. Defendants deny all other allegations contained in this paragraph. 21. Defendants admit the factual allegations contained in the first sentence of this paragraph only to the extent that inmates may be moved from a segregation cell to a

9
health services unit and that inmates may be placed on mental health watches in a health services unit. In further answer, defendants state that any staff member may place an inmate on “observation” status but only a clinician may place an inmate on mental health watch. In further answer, defendants state that clinicians may utilize therapeutic restraints, and that security staff may place inmates in restraints in accordance with the provisions of 103 CMR 505.10, Use of Force, for the purposes set forth in 103 CMR 505.07. In further answer, defendants state that an inmate in restraints pursuant to 103 CMR 505.10 may be placed on mental health watch by clinical staff. In further answer, defendants state that in accordance with Recommendation 24 of the Lindsay M. Hayes Report (“Hayes Report”), security watches are no longer utilized for situations in which staff have concerns about an inmate’s behavior, that the Department of Correction has directed the health services vendor to modify its policy to reflect that placement on mental health watch is for specified behaviors, regardless of perceived motivation or clinical diagnosis. Defendants state in further answer that mental health watches employed in health services units are clinical procedures and that their use is determined by qualified clinicians. In further answer, defendants state that in accordance with Recommendation 13 of the Hayes Report, the placement and length of stay on suicide precautions is solely based upon the clinical judgment of mental health staff. Defendants deny the allegations contained in the second and third sentences of this paragraph. In further answer, defendants state that the health services vendor’s therapeutic supervision policy provides that clinicians are to set property and privilege levels to be the least restrictive based upon clinical risk. Defendants admit the factual allegation contained in the fourth sentence of this paragraph that placement on a mental health watch is not

10
segregation. In further answer, defendants state that the MCI-Framingham is in the process of implementing the housing of inmates on watch status together where there are no clinical contraindications. Defendants need make no response to the factual allegation concerning the content of the Hayes Report, as the report speaks for itself. Conditions in Segregation
22. Defendants deny the factual allegation contained in the first sentence of this paragraph that the cells in each type of dedicated segregation unit are “very small.” and in further answer, state that the cell sizes are comparable to those in general population, as cells in 10 Block and DDU are larger than cells in the East Wing at MCICedar Junction, with the exception of the Modular Unit, and cells in the DDU are larger than cells in the West Wing. In further answer, defendants state that DDU cells are approximately 84 square feet, Ten Block cells are approximately 54 square feet; and Nine Block cells are approximately 70 square feet. In comparison, West Wing cells approximately 65 square feet; East Wing Cells are approximately 40.5 square feet; and Modular Unit cells are approximately 70 square feet. Defendants admit the factual allegation that walls are constructed from “solid concrete,” and in further answer state that the same construction is used throughout MCI-Cedar Junction, and that such construction is appropriate for the maintenance of safety and security in all living areas of a maximum security correctional facility. Defendants admit the factual allegation that some segregation cells, such as those in 10 Block, have a solid outer door and an inner barred door, and state in further answer, that solid door is ordinarily left open except in event of emergency (e.g., inmate throws things) or at night, when it is closed at the request of the inmate. Defendants admit the factual allegation that there is typically one

11
small window to the outside. Defendants deny the allegation that it allows in little, if any, natural light. Defendants deny the factual allegation that some segregation cells such as those at 10 Block, MCI-Norfolk and NCCI-Gardner have no windows at all to the outside. In further answer defendants state that all 99 cells in the MCI-Norfolk SMU have windows to the outside. In further answer, defendants state that all cells in the SMU at NCCI-Gardner have outside windows, except for approximately 5 cells. In further answer, defendants state that 10 Block cells receive natural light from windows in the corridor outside the cells. Defendants deny the factual allegation that all segregation cells have minimal furnishings, and in further answer, state that segregation cells are generally furnished in the same manner of general population cells in that they are equipped with a bed, desk, chair, toilet, sink, shelf and mirror.
23. Defendants admit the factual allegation that inmates confined in segregation may remain in their cells for approximately twenty-three hours per day, with the qualification that inmates may leave their cells for a variety of reasons, including outdoor exercise five days a week, regular visits and attorney visits (as provided by 103 CMR 423.09(1)(e)), shower three times a week (as provided by 103 CMR 423.09(1)(b)), use of the law library, visits to the health services unit for medical, dental or mental health care, visits to outside hospitals, court trips, and attendance at administrative hearings and proceedings.
24. Defendants admit the factual allegations contained in the first sentence of this paragraph only to the extent that inmates held in segregation are allowed one hour of outdoor exercise five days a week. In further answer, defendants state that for reasons of safety and security, outside exercise is conducted in individual exercise enclosures

12
designed to provide inmates with visual and voice contact with other inmates, but not physical contact with other inmates. Defendants admit the factual allegation contained in the second sentence of this paragraph that outdoor exercise areas are at least partially open to weather to provide fresh air, and deny the characterization that outdoor exercise is often cancelled. In further answer, defendants state that when inclement weather precludes the utilization of the outdoor exercise areas, inmates may exercise in their cells. Defendants are without sufficient information to respond to the generalizations made in the third and fourth sentences concerning inmates with mental illness.
25. Defendants admit the first sentence of this paragraph only to the extent that where contact with others is minimized, it is for the proper purpose of ensuring safety, security and order. Defendants deny the factual allegations contained in the second sentence of this paragraph. Defendants state in further answer that inmates in the SMU and DDU are provided the same opportunity for writing and receipt of letters as inmates in general population.
a. Defendants admit the factual allegation that inmates cannot see other prisoners from their cells, with the qualifications that certain segregation cells face other cells across the corridor and inmates see other inmates when inmates are moving within the unit. In further answer, defendants state that inmates see other inmates in the law libraries, in visiting areas, in health services units, when being escorted within the facility, and during exercise periods.
b. Defendants admit the factual allegations contained in this sub-paragraph. c. Defendants deny the factual allegations contained in this paragraph, and in further answer, state that inmates can hear other inmates through the cell doors and walls,

13
and at MCI-Cedar Junction, through the outer grill doors when the solid doors are open. Defendants state in further answer that segregation inmates who are pro se co-plaintiffs in litigation can seek permission to correspond by mail.
d. Defendants admit the factual allegation that inmates held in segregation cannot physically attend religious services, cannot work in a prison job and cannot physically attend programs. Defendants deny the factual allegation that inmates cannot participate in rehabilitative activities. In further answer, defendants state that inmates may pray privately, that chaplains conduct rounds in segregation units to provide individual religious contact to inmates, and that treatment videos, as well as entertainment and religious videos, are provided in the DDU by closed circuit television. In further answer, defendants state that the Department of Correction recently awarded a program contract to Spectrum Health System to provide non-residential treatment services for male offenders. The target population for this program will consist of inmates with a history of assaultive and/or disruptive behavior, inmates with gang affiliations, and inmates who have displayed generally high levels of resistance to treatment interventions. This program includes a High Risk Offender program to be delivered in the DDU. It will offer DDU inmates both group and individual intervention strategies designed to provide information and rehearsal on a variety of skills which inmates lack. The program will employ cognitive behavioral treatment as the major treatment methodology, covering a broad range of topics, including cognitive restructuring, criminal thinking, anger management, choices and consequences, and social skills training. Where appropriate, the characteristics of motivational enhancement therapy will be used to engage this population in treatment. The program will also address treatment needs of inmates with

14
mental health issues including PTSD or PTSD-like symptoms, and where necessary, employ learning techniques to address any learning deficits such as attention deficit disorder (A.D.D.), and/or attention deficit hyperactivity disorder (A.D.H.D.). The program contractor will coordinate services with the Department’s mental health services provider. This contract went into effect April, 1, 2007. Spectrum has hired a staff person to facilitate this program. Spectrum is in the process of coordinating a series of trainings about the program for the MCI-Cedar Junction staff and DDU correction officers on all 3 shifts. In further answer, defendants state that jobs are not provided for reasons of safety and security.
e. Defendants admit the factual allegation that inmates in segregation are allowed only non-contact visits, and in further answer state that non-contact visits are required for reasons of safety and security. Defendants deny the characterization of visits as infrequent, and in further answer, state that the Department of Correction has established visiting schedules, but that it is not within control of DOC how frequently persons choose to visit inmates. Defendants further answer that if visits are denied, it is for the reason that the inmate has lost visits as a sanction imposed for a disciplinary conviction, or that the particular visitor is barred for attempts to bring contraband into the institution or for other behavior in violation of the Department of Correction Visiting Procedures policy at 103 CMR 483.16.
f. Defendants deny the characterization that access to telephones, reading material and radios is highly restrictive, and in further answer state that inmates in segregation are allowed to make telephone calls, to access library material and to have

15
“Walkman” radios, and that state-supplied radios and televisions are earned privileges in the DDU. Placement of Prisoners with Mental Illness in Segregation
26. This paragraph contains plaintiff’s general characterization of the behavior of inmates with mental illness, to which no answer is required, but insofar as one is required, defendants deny the allegations contained in this paragraph.
27. Defendants deny the allegations contained in this paragraph. In further answer, defendants state the following: In accordance with Section 1 of 103 DOC 218, Recruit Training, the recruit training curriculum includes suicide awareness/signs of mental illness and signs and symptoms of mental retardation/chemical dependency. In accordance with Recommendation 1of the Hayes Report, a revised eight hour pre-service suicide prevention curriculum has been implemented for new Department of Correction employees, which includes the objectives of instructing participants to: recognize the signs, symptoms, risk factors and the role of a correctional professional in dealing with suicidal incidents; develop an understanding of the policies and procedures governing mental health watches, suicide, and death in a correctional setting; demonstrate the proper communication skills in dealing with a possible mental health/suicidal inmate during the intake and screening process; and demonstrate the proper intervention skills when observing abnormal/bizarre behavior in various correctional settings. In accordance with Recommendation 2 of the Hayes Report, a revised two hour in-service curriculum for correctional, medical and mental health staff has been implemented. In accordance with Recommendation 4 of the Hayes Report, revisions to address immediate needs are being made to 103 DOC 650, Mental Health Services. In further answer, defendants state that,

16
as noted in 103 DOC 610.01, matters of medical and mental health are solely the province of the responsible physicians and psychiatrists. In further answer, defendants state that revised in-service training began during the week of April 2, 2007 at both regional training centers (Shirley Training Academy and Warren Hall), and that the training covers signs and symptoms of mental illness and interacting with mentally ill inmates. Additionally, an emergency response drill involving a suicide attempt by hanging is now incorporated as part of CPR and first aid training.
28. Defendants need make no response to the allegation in the first sentence concerning the content of 103 DOC 650 because the policy speaks for itself. Defendants have insufficient information to form a belief as to the veracity of the factual allegation contained in the second sentence of this paragraph. By way of further answer, however, defendants state the following: In response to Recommendation 8 of the Hayes Report, superintendents have been directed to attend, and have been directed that mental health staff must attend, all segregation review meetings and all morning “climate” meetings, with attendance to be documented; and a tracking system has been established to monitor compliance with the meetings and intra-facility communication required by 103 DOC 650, Mental Health Services. Moreover, the Assistant Deputy Commissioners are monitoring compliance regarding superintendent attendance and clinical presence at segregation review meetings. In response to Recommendation 9 of the Hayes Report, all health services vendor mental health staff have access to the segregation review screens in the Inmate Management System (“IMS”), the Department’s automated information system that provides processing, storage and retrieval of inmate information utilized in daily operations by Department personnel to carry out their functions. Section 15.3 of the

17
Department’s Request for Response for Comprehensive Health Services to the Massachusetts Prison Population, mandates that vendor staff receive IMS “profiles,” receive IMS training, and utilize IMS by viewing and entering data. In response to Recommendation 10 of the Hayes Report, the health services vendor is to develop an alternative to the current “at risk” list, which will be superseded by daily case reviews through climate meetings and segregation review meetings.
29. Defendants admit the factual allegation contained in the first sentence of this paragraph only to the extent that as of the date of this answer, there is no secure treatment program designed to serve as an alternative to segregation and that alternatives to segregation placement are made on a case-by-case basis. In further answer, defendants state that there is a Residential Treatment Unit in operation at the Old Colony Correctional Center. In further answer, defendants state the following: the outstanding Request for Response for Comprehensive Health Services to the Massachusetts Prison Population, which was issued on December 15, 2006, requires that bidders submit a proposal for a 60-bed maximum security residential treatment unit for inmates with serious and persistent mental illness to open on July 1, 2007, and additionally, a 15-bed male behavioral management unit to open and female behavioral management services to begin on January 1, 2008. The DOC is evaluating the responses of six bidders, and the contract commencement date will be July 1, 2007. In accordance with Recommendation 8 of the Hayes Report, an assessment has been conducted of Block 9 at MCI-Cedar Junction to determine the costs and work needed to establish a Behavioral Management Unit, which will house ten inmates and an assessment is being conducted of a block in

18
SBCC as an alternative unit to segregation. Defendants deny all other allegations contained in this paragraph.
30. Defendants deny the allegations set forth in the first and second sentences of this paragraph. In further answer, defendants state the following: The outstanding Request for Response for Comprehensive Health Services to the Massachusetts Prison Population, which was issued on December 15, 2006, requires that bidders submit a proposal for a 60-bed maximum security residential treatment unit for inmates with serious and persistent mental illness, and additionally, a 15-bed male behavioral management unit and an 18 room female behavioral management unit at MCIFramingham, some of which rooms will be double bunked. The Request for Response requires that the bidders provide plans for a contract commencement date of July 1, 2007. The DOC is evaluating the responses of six bidders, and the contract commencement date will be July 1, 2007. In accordance with Recommendation 8 of the Hayes Report, an assessment has been conducted of Block 9 at MCI-Cedar Junction to determine the costs and work needed to establish a Behavioral Management Unit, which will house ten inmates, and an assessment is being conducted of a block in SBCC to determine the costs and work needed to establish an alternative unit to segregation. Defendants deny all other allegations contained in this paragraph. Effect of Segregation on Prisoners with Mental Illness
31. Inasmuch as this paragraph sets forth non-referenced clinical conclusions, defendants have insufficient information to form a belief as to the veracity of the conclusory allegations set forth in this paragraph. To the extent that this paragraph

19
references a syndrome called “special housing unit syndrome,” the defendants deny that this is a "syndrome" generally accepted as a diagnosable condition in the Diagnostic and Statistical Manual of Mental Disorders–Fourth Edition (DSM–IV-TR) or in the medical community.
32. This paragraph contains general behavioral characterizations, and therefore, no responsive pleading is required. To the extent a response is required, defendants deny the allegations contained in this paragraph.
33. This paragraph contains general behavioral characterizations, and therefore, no responsive pleading is required. To the extent a response is required, defendants deny the allegations contained in this paragraph.
34. Defendants deny the allegations set forth in the first sentence of this paragraph. Defendants admit the allegations contained in the second sentence only to the extent that pursuant to 103 CMR 430, segregation time and loss of privileges are possible disciplinary sanctions for any inmate. In further answer, defendants state that in accordance with Recommendation 15 of the Hayes Report, disciplinary reports solely for self-injurious behavior are now prohibited. Inasmuch as the Hayes Report speaks for itself, defendants need make no response to allegations describing the report. Defendants deny all other allegations contained in this paragraph.
35. Defendants deny all allegations contained in this paragraph. Provision of Mental Health Care in Segregation
36. Defendants deny the allegations contained this paragraph. In further answer, defendants state that treatment videos, as well as entertainment and religious videos, are provided in the DDU by closed circuit television and that the Department of

20
Correction recently awarded a program contract to Spectrum Health System to provide non-residential treatment services for male offenders. The target population for this program will consist of inmates with a history of assaultive and/or disruptive behavior, inmates with gang affiliations, and inmates who have displayed generally high levels of resistance to treatment interventions. This program includes a High Risk Offender program to be delivered in the DDU. It will offer DDU inmates both group and individual intervention strategies designed to provide information and rehearsal on a variety of skills which inmates’lack. The program will employ cognitive behavioral treatment as the major treatment methodology, covering a broad range of topics, including, cognitive restructuring, criminal thinking, anger management, choices and consequences, and social skills training. Where appropriate, the characteristics of motivational enhancement therapy will be used to engage this population in treatment. The program will also address treatment needs of inmates with mental health issues including PTSD or PTSD-like symptoms, and where necessary, employ learning techniques to address any learning deficits such as attention deficit disorder (A.D.D.), and/or attention deficit hyperactivity disorder (A.D.H.D.). The program contractor will coordinate services with the Department’s mental health services provider. This contract went into effect April, 1, 2007. Spectrum has hired a staff person to facilitate this program. Spectrum is in the process of coordinating a training series about the program for the MCI-Cedar Junction staff and DDU correction officers on all 3 shifts.
37. Defendants admit the factual allegation that mental health sessions may occur while the inmate is within his cell with the health care provider standing outside the cell and speaking to the inmate through the food slot or a crack at the side of the door.

21
Defendants deny the characterization of “typically.” In further answering, defendants state that such sessions may now take place outside of the cell upon the request of a mental health clinician or if the inmate is on mental health watch. Defendants admit the factual allegation contained in the second sentence only to the extent that privacy and confidentiality may be limited.
38. Defendants admit the factual allegations in the first sentence only to the extent that the Department of Correction allows private meetings between therapists and inmates. Defendants have insufficient information to form a belief as to the veracity of the allegation that therapists and inmates are reluctant to request private meetings. Defendants admit the factual allegation in the second sentence that inmates leaving and returning to segregation units are strip searched, and in further answer state that such searches are necessary to ensure the safety and security of both inmates and staff. Defendants admit the factual allegation that cell searches may be conducted while prisoners are outside of their cells, and in further answer, defendants state that segregation cell searches must be conducted weekly to ensure the safety and security of inmates and staff and that the inmates must be outside of the cells when the searches are conducted. In further answer to the third sentence, defendants state that correctional officers searching inmates' cells in segregation have discovered various and numerous forms of contraband, including but not limited to, heroin, weapons, razors and home brew, and that such items are dangerous to inmates and staff. In further answer, defendants state that searches of Mr. A’s cells resulted in the discovery of razor blades, an altered mattress and scrubs, and two Trazadone pills. Additionally, searches of Mr. A’s person revealed an envelope full of sexually explicit material tucked in his waistband

22
and three razors in his sock. In further answer, defendants state that searches of Mr. D’s cells resulted in the discovery of nail clippers, altered eyeglasses, a “stinger” or contraband electrical heating device, tattoo paraphernalia, three darts with needle tips and blow darts, two 7” plexiglass weapons, 6” flatstock, 6” piece of plastic and copper wire, and razor blades. In further answer, defendants state that searches of Mr. D’s person revealed a razor blade and a homemade dart that Mr. D threw at staff. In further answer, defendants state that searches of Mr. H’s cells revealed two pieces of glass, a sharpened eyeglass arm, two razor blades, and a 1” piece of sharpened steel. Additionally, searches of Mr. H’s person revealed two 2-3 foot altered shower rods. In further answer, defendants state that searches of Mr. I’s cells resulted in the discovery of two 1.5” steel pieces used as a tool, headphone jacks fashioned as a stinger, two pieces of metal, an eyeglass arm, six tablets of Baclopen and one pill of Seroquil, a 5.5” piece of sharpened plexiglass, a 6” piece of sharpened plexiglass, and two pills of Robaxin muscle relaxer. In further answer, defendants state that searches of Mr. L’s cells resulted in the discovery of a 1” piece of metal, a round piece of metal, a razor blade, a 1” piece of metal, a 4” piece of sheet metal, a 3” fence band, a 6” piece of plexiglass, two steel rods, a razor weapon, and 3” flatstock. Additionally, searches of Mr. L’s person revealed a razor blade, broken glass, broken glass that had been ingested, broken cable wire, and a piece of 3” flatstock. In further answer, defendants state that searches of Mr. M’s cells resulted in the discovery of numerous items of contraband. In further answer, defendants state that searches of Mr. N’s cells resulted in the discovery of a tampered radio, homemade altered ear jacks, stereo system and wire, and a missing piece of metal from an air vent. Additionally, searches of Mr. N’s person revealed a 6.5” piece of sharpened steel rod. In

23
further answer, defendants state that searches of Mr. O’s cells resulted in the discovery of sharpened plexiglass (from a broken temp tech tray), a damaged footlocker, a smashed TV and glass, a makeshift sap weapon, a metal weapon made from a piece of sink, 2 gallons of “homebrew,” a 4” pick-type weapon, two pieces of plate steel from a desk, and two envelopes of pornography. Additionally, searches of Mr. O’s person revealed a sap weapon. Defendants deny all other allegations contained in this paragraph.
39. Defendants admit the factual allegations contained in this paragraph only to the extent that inmates in segregation receive intensive attention from mental health staff, and that inmates may be transferred to Bridgewater State Hospital pursuant to Massachusetts General Law, chapter 123, section 18(a). In further answering, defendants state that Bridgewater State Hospital is a continuum of the provision of mental health care. Defendants deny all other allegations contained in this paragraph.
40. Defendants deny the factual allegations contained in this paragraph. In further answer defendants state that the decision to commit an inmate to Bridgewater State Hospital is solely a clinical decision governed by applicable Massachusetts laws, and that inmates who do not meet the statutory civil commitment criteria are discharged from Bridgewater State Hospital. Defendants deny the factual allegation that inmates spend time at Bridgewater State Hospital in “segregation like conditions,” and in further answer, state that segregation is not used at Bridgewater State Hospital, but that clinical seclusion may be utilized by clinical staff in accordance with the provisions of G.L. c. 123, § 21. With respect to the allegation that “[m]any prisoners have shuttled back and forth between segregation and Bridgewater State Hospital more than ten times,” defendants state in further answer that records indicate that only three inmates were

24
admitted under G.L. c. 123, § 18(a) from a Department of Correction prison to Bridgewater State Hospital more than ten times during the last five years.
41. Defendants admit the factual allegation that since November 2004, fifteen inmates have committed suicide, and deny the factual allegation that said suicides all occurred while the inmates were held in segregated confinement. In further answer, defendants state that seven suicides occurred in segregation, four in health services units, one in the multipurpose unit of a residential treatment unit, and two in general population, and one in general population at Bridgewater State Hospital. The defendants admit the factual allegation contained in the second sentence of this paragraph only to the extent that ten of the fifteen inmates had documented mental health histories. Examples of Mentally Ill Prisoners in Segregation
42. Defendants admit the allegations of the first sentence only to the extent that Mr. A was a 26-year-old prisoner. In further answering, defendants state that Mr. A had been diagnosed as mildly mentally retarded and described as having Major Depressive Disorder with Psychotic Features and that no clinician ever stated that Mr. A could never be placed in segregation, only that should he placed in segregation and begin demonstrating certain behaviors, then close mental health assessments would be appropriate. On November 15, 2004, Dr. Holtzen from Bridgewater State Hospital, stated in his G.L. c. 123, § 18(a) Addendum that “prison conditions that approximate solitary confinement (23-hour per day isolation/segregation) have been shown to have a deleterious impact on the mental health of some inmates” and “[s]hould Mr. A be housed under such conditions in the future and should his mental status subsequently deteriorate to the point where he is exhibiting bizarre, inappropriate behavior, then it is likely that he

25
is one such inmate for whom solitary confinement would not be indicated for any protracted period of time. Given that he deteriorated mentally after having been in segregation at Souza-Baranowski, and given his low level of intelligence and his maladaptive personality style, upon his return to his regular penal facility Mr. A (and should he be housed in segregation), then close mental health assessments of him appear indicated”. Defendants admit the allegations of the second sentence only to the extent that Mr. A was placed in the Health Services Unit at MCI-Cedar Junction on December 7, 2005 after inflicting superficial cuts to his arms and throat, and an emergency medical code was called. In further answering, defendants state that Mr. A spit on staff responding to the emergency medical code, and bit one of the officers, which, when coupled with his self-mutilation, warranted Mr. A’s placement in four point restraints, which ceased on December 8, 2005. In further answering, defendants also state that prior to Mr. A inflicting harm to himself, a correctional officer referred Mr. A to mental health and that a mental health clinician determined that Mr. was not at risk after Mr. A indicated he was upset about property issues and did not indicate he would harm himself. Defendants admit the allegations of the third sentence only to the extent that Mr. A. was moved from the Health Services Unit to 10 Block on December 15, 2005, and in further answering state that this move was made after five meetings between Mr. A and mental health staff in the Health Services Unit in which Mr. A informed staff that he no longer wanted to harm himself or anyone else, as well as his preference for being housed at Bridgewater State Hospital as opposed to general population at MCI-Cedar Junction. Defendants admit the allegations of the fourth sentence that, on December 19, 2005, Mr. A met with an attorney and paralegal from Massachusetts Correctional Legal Services,

26
Inc. Defendants have insufficient information to form a belief as to the fifth and sixth sentence, as the attorney and paralegal from Massachusetts Correctional Legal Services, Inc. did not relate any information concerning Mr. A’s appearance or express wishes of suicide to correctional staff, who were not present for said meeting. Defendants admit the allegations of the seventh sentence, and in further answering state that Mr. A’s solid cell door was closed at approximately 11:35 a.m. on December 20, 2005. Defendants admit the allegations of the eighth sentence, and in further answering, state that the investigation revealed that rounds were done at 12:41 and 12:45 p.m., but not thereafter until Mr. A was discovered hanging in his cell at approximately 4:20 p.m. In further answering, defendants state that there is now a standard definition of "round" and that the Department of Correction is conducting audits to ensure that the rounds are occurring as required. Defendants admit the allegations of the ninth sentence, and in further answering state that Mr. A was discovered hanging in his cell at approximately 4:20 p.m. on December 20, 2005.
43. Defendants admit the allegations of the first sentence. Defendants admit the allegations of the second sentence to the extent that Mr. B had been diagnosed with Attention Deficit Hyperactivity Disorder and, by way of further answer, state that the mental health notes “a rule out diagnosis of Bipolar Disorder,” as well as “viewed as presenting with symptoms more consistent with an Adjustment Disorder with Depressed Mood, and a Personality Disorder with ‘Cluster B’features,” and “seen as primarily presenting with an Antisocial Personality Disorder with paranoid features and although he could become quite suspicious it was felt to be more of an expression of his personality structure.” Defendants admit the allegations of the third sentence. Defendants

27
admit the allegations of the fourth sentence to the extent that Mr. B was placed in the Special Management Unit after he assaulted another inmate while in general population. Defendants admit the allegations of the fifth sentence to the extent that, the G.L. c. 123, § 18(a) referral note of Dr. Marianne Smith noted that after his return to the Souza Baranowski Correctional Center, Mr. B decompensated after becoming only partially compliant with medication and voiced paranoid delusions to mental health and security staff. Defendants admit the allegations of the sixth sentence. Defendants admit the allegations of the seventh sentence to the extent that Dr. Smith noted that Mr. B lost was losing weight and was voicing suspicions about what might be in his food. In further answering, defendants state that Mr. B had a history of weight fluctuation that was somewhat dependent on his level of compliance in taking prescribed medicine. Defendants admit the allegations of the eighth sentence, that Mr. B was admitted to Bridgewater State Hospital on September 14, 2005 for purposes of an evaluation pursuant to G.L. c. 123, § 18(a). Defendants admit the allegations of the ninth sentence to the extent that this was Mr. B’s second evaluation at Bridgewater State Hospital. Defendants admit the allegations of the tenth sentence, and in further answering state that Mr. B was transferred back to the Souza-Baranowski Correctional Center on October 18, 2005, after a finding by mental health clinicians that Mr. B did not meet the clinical and legal criteria for commitment to Bridgewater State Hospital, and was placed in segregation at SBCC after being cleared by mental health staff for placement there and that the Department of Correction was never informed by any mental health clinician that Mr. B could not be held in segregation. Defendants admit the allegations of the eleventh sentence that Mr. B was placed on mental health watch on October 19, 2005, and in further answering state

28
that Mr. B was ordered by mental health staff to be moved to the Health Services Unit at that time. Defendants admit the allegations of the twelfth sentence that Mr. B was cleared from mental health watch on October 22, 2005, and in further answering state that he was terminated from mental health watch by mental health staff at approximately 12:37 p.m. on October 22, 2005, and returned to the Special Management Unit at approximately 1:13 p.m. on October 22, 2005. Defendants deny the allegations of the thirteenth sentence, and in further answering state that the nurse did not have Mr. B’s medications at the time of the medication pass at approximately 8:30 p.m. on October 22, 2005, but had informed Mr. B that he would bring him his medication at the end of the medication pass, and a different nurse returned at approximately 9:45 p.m. on October 22, 2005 with Mr. B’s medications. Defendants admit the allegations of the fourteenth sentence that the nurse and officer found Mr. B hanging from the bars on his cell window at approximately 9:45 p.m. on October 22, 2005, approximately one hour and fifteen minutes after the nurse conducted the medication round at 8:30 p.m. on October 22, 2005. Defendants admit the allegations of the fifteenth sentence only to the extent that Mr. B wrote “Dust in the wind” with soap, and in further answering state that he wrote it on his soap enclosure, not his cell desk, and that Mr. B also had written “Love, [peace sign] and dead police! May I rest in peace or get a tan in Hell at least” on his mirror. Defendants admit the allegations of the sixteenth sentence only to the extent that the Department of Correction conducted a mortality review after Mr. B’s death, but deny the remaining allegations of this sentence.
44. Defendants admit the allegations of the first sentence only to the extent that Mr. C committed suicide by hanging in the Special Management Unit at SBCC on

29
January 29, 2007, but in further answering state that Mr. C was 37 years old at the time. The defendants are without sufficient information to form a belief as to the veracity of the factual allegations in the third sentence and, in further answer, defendants state that Mr. C denied receiving any inpatient mental health treatment or having any other mental health history prior to incarceration. In further answer, defendants state that Mr. C had once been diagnosed by a psychiatrist with Psychotic Depression in Remission and that, on or about April 14, 2006, a clinician from Bridgewater State Hospital diagnosed Mr. C with Dysthymic Disorder and Personality Disorder with Borderline Features. Defendants admit the allegations of the third sentence to the extent that Mr. C had attempted to kill himself on a prior occasion, on May 1, 1995 at Bridgewater State Hospital before his conviction to the Department of Correction, but are without sufficient information as to whether this attempt was in segregation and that while in the SMU on March 18, 2006, two days after being cleared by a mental health clinician for entry into segregation, Mr. C attempted to hang himself, ingested foreign objects and superficially cut his arms, wrists and legs. Defendants admit the allegations of the fourth sentence. Defendants admit the allegations of the fifth sentence only to the extent that Mr. C did break apart his breathing machine and, in further answer, state that Mr. C ingested pieces of the machine and superficially cut his arms, wrists and legs. Defendants admit the allegations of the sixth sentence only to the extent that he ingested parts of the machine. Defendants admit the allegations in the seventh sentence. Defendants admit the allegations in the eighth sentence only to the extent that this incident resulted in his transfer to Bridgewater State Hospital where he went for an evaluation pursuant to G.L. c. 123, § 18(a) and Mr. C was returned to SBCC approximately one month later when the evaluating psychiatrist opined

30
that Mr. C did not require ongoing psychiatric hospitalization secondary to being at risk to himself or others by reason of mental illness. In further answer, defendants state that the decision to commit an inmate to Bridgewater State Hospital is solely a clinical decision governed by applicable Massachusetts laws, and that inmates who do not meet the statutory civil commitment criteria are discharged from Bridgewater State Hospital. In further answer, defendants state that the evaluating psychiatrist found that Mr. C demonstrated little motivation to engage in any treatment while at Bridgewater and had been resistant to efforts to integrate him into population, but that Mr. C had stabilized. Defendants admit the allegations of the ninth sentence only to the extent that the evaluating psychiatrist believed that Mr. C's suicide attempt was "an impulsive reaction to unbearable feelings in conjunction with his being socially isolated and without his usual sources of support" and deny that the clinician made any specific reference to segregation.
45. Defendants admit the allegations of the first sentence, and in further answering state that Mr. D is currently serving a fourteen-month sentence in the DDU for assaulting another inmate with a weapon, causing lacerations and puncture wounds to the other inmate. Defendants deny the allegation in the second sentence that Mr. D is diagnosed with "severe depression" and defendants are without sufficient information to form a belief as to the veracity of the remainder of the allegations in this sentence, and in further answering, state that Mr. D may have received psychiatric treatment for hyperactivity in childhood and that a provider diagnosed Mr. D with a Generalized Anxiety Disorder in 1995. In further answer, defendants state that Mr. D has been diagnosed by a psychiatrist with Antisocial Personality Disorder, Polysubstance

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Dependence and a Rule-Out Adjustment Disorder with Depressed Mood v. Depressive Disorder Not Otherwise Specified, based on self-reported symptoms. In further answer, defendants state that on April 5, 2007, a psychiatrist opined that, although Mr. D selfreported signs and symptoms of situational depression, Mr. D is not currently clinically depressed or suicidal. Defendants deny the allegations in the third sentence. In further answer, defendants state on August 24, 2005, during chow time and in front of a correction officer, Mr. D placed a razor in his mouth, drank water and then said, "Now medical will see me." In further answer, defendants state that on or about November 28, 2006, Mr. D sent a letter to the Central Office Grievance Coordinator, in which he claimed to have swallowed razor blades and, upon receipt of such letter on December 1, 2006, Mr. D was taken to a hospital and x-rayed, but no razors were found. Defendants deny the allegations of the fourth sentence and, in further answer state that Mr. D has not been transferred or committed to Bridgewater State Hospital since his present term of incarceration began in 1996. Defendants admit the allegations in the fifth sentence only to the extent that Mr. D has reported chronic back pain and, in further answering, state that qualified medical providers have treated Mr. D's reported back pain and Mr. D has received medication for this condition. Defendants deny the allegations of the sixth sentence and, in further answering, state that Mr. D has self-reported that he feels depression, secondary to alleged inappropriate treatment of back pain. Defendants deny the allegations in the seventh sentence and, in further answering, state that, on or about April 5, 2007, a psychiatrist reported that Mr. D denied suicidal ideas and that this psychiatrist opined that Mr. D is not clinically depressed or suicidal.

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46. Defendants admit the allegations of the first sentence only to the extent that Mr. E is a 28-year-old inmate currently confined in the DDU and in further answering state that Mr. E returned to the DDU on April 25, 2007 from Bridgewater State Hospital, where Mr. E had been placed on February 28, 2007 pursuant to G.L. c. 123, § 18(a). In further answer, defendants state that on or about April 23, 2007, a clinician from Bridgewater State Hospital opined that Mr. E "does not suffer from a mental illness as defined by relevant DMH regulations. As the previous evaluators opined, there is no current data that suggest his behavioral problems, either post or present have been due to any identifiable mental illness." The defendants are without sufficient information to form a belief as to the allegations of the second and third sentences. The defendants deny the allegations of the fourth sentence, but in further answering state that Mr. E had been housed almost continuously in the DDU for greater than two years, resulting from numerous disciplinary convictions for assaults on staff, inciting other inmates to assault staff, destruction of property, smearing and throwing feces, as well as threats of violence to staff. Defendants deny the allegations of the fifth sentence, but in further answering state that Mr. E is currently serving criminal sentences for assaults on correction officers. Defendants deny the allegations in the sixth sentence as this sentence references a non-referenced clinical conclusion, but in further answer state that, on February 28, 2007, in a petition to commit Mr. E to Bridgewater, an attending psychiatrist reported that Mr. E. was getting more depressed with impulses to cut or hang himself. In further answer, defendants state that on April 23, 2007, a clinician opined that Mr. E does not suffer from a mental illness as defined by DMH regulations. Defendants admit the allegations in the seventh sentence only to the extent

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that while in segregation, on July 26, 2006, Mr. E swallowed a razor and battery in view of a correction officer and then said, "how can I be in my right state of mind...I just swallowed a battery and a razor. If you code up I'm fighting because I haven't taken my meds so I'm not responsible for my actions." On another occasion, August 2, 2006, Mr. E attempted to tear his sink off the wall of his cell and was jumping up and down on his bed frame trying to tear the shelf off the wall, when he exclaimed to a correctional officer, "Open my cell door, I got something for you," while he was waving a broken piece of plastic at the officer and while waiting for additional correctional officers to arrive, as another incident was occurring simultaneously involving another inmate, Mr. E tied a ligature around his neck with the other end tied to a vent; correctional officers entered Mr. E's cell, cut the ligature off when Mr. E could not untie it and escorted Mr. E to the HSU; a short time after Mr. E was removed from his cell, he threatened a correctional officer, informing him he was on his list and threatening to "get" him. Defendants admit the allegations in the eighth sentence only to the extent that anger and stress management were not utilized in the DDU and in further answering, defendants state that there is no record of Mr. E asking for therapies such as anger and stress management. In further answer, defendants state that the Department of Correction recently awarded a program contract to Spectrum Health System to provide non-residential treatment services for male offenders. The target population for this program will consist of inmates with a history of assaultive and/or disruptive behavior, inmates with gang affiliations, and inmates who have displayed generally high levels of resistance to treatment interventions. This program includes a High Risk Offender program to be delivered in the DDU. It will offer DDU inmates both group and individual intervention strategies designed to provide

34
information and rehearsal on a variety of skills which inmates’lack. The program will employ cognitive behavioral treatment as the major treatment methodology, covering a broad range of topics, including, cognitive restructuring, criminal thinking, anger management, choices and consequences, and social skills training. Where appropriate, the characteristics of motivational enhancement therapy will be used to engage this population in treatment. The program will also address treatment needs of inmates with mental health issues including PTSD or PTSD-like symptoms, and where necessary, employ learning techniques to address any learning deficits such as attention deficit disorder (A.D.D.), and/or attention deficit hyperactivity disorder (A.D.H.D.). The program contractor will coordinate services with the Department’s mental health services provider. This contract went into effect April, 1, 2007. Spectrum has hired a staff person to facilitate this program. Spectrum is in the process of coordinating a training series about the program for the MCI-Cedar Junction staff and DDU correction officers on all 3 shifts. Defendants deny the allegations in the ninth sentence and in further answer, state that Mr. E's treatment plan of November 13, 2006 specified a minimum of once a month contact with a counselor and nurse, but that while at MCI-Cedar Junction Mr. E was seen by his counselor a minimum of two times per month for routine visits and that at least one of these two monthly visits occurred out of Mr. E's cell in the Multipurpose room of the DDU. In further answer, defendants state while Mr. E was in Bridgewater from February 28, 2007 through April 25, 2007, he received weekly psychiatric consultations, as well as weekly case administration (social work) contacts.
47. Defendants admit the factual allegation that Mr. F is a 30-year old inmate and deny that he is currently confined in 10 Block at MCI-Cedar Junction and that he has

35
been in segregation continuously for more than two years. In further answer, defendants state that Mr. F is a member of the Latin Kings who is serving a governing sentence for second-degree murder for his participation in a gang-related killing. His institutional record at the Department of Correction has been marked by numerous disciplinary reports, including reports for assaultive behavior toward inmates and staff. He was at Bridgewater State Hospital from December 8, 2005 through July 24, 2006 and from August 9, 2006 through October 31, 2006. He was confined in 10 Block from October 31, 2006 to November 18, 2006. He resided in the health services unit from November 18 to November 19, 2006, then returned to 10 Block November 19, 2006. On February 1, 2007, Mr. F. was transferred to general population at the Souza Baranowski Correctional Center and then to the Protective Custody Unit (L3) at Souza on February 7, 2007, where he currently resides. Defendants admit the factual allegation contained in the second sentence only to the extent that Mr. F. has received mental health diagnoses, and in further answer state that these diagnoses have included Antisocial Personality Disorder, Post Traumatic Stress Disorder and Major Depressive Disorder with Psychotic Features in Remission. Defendants admit the factual allegation that he has attempted suicide six times in the last two years, and in further answer, state that Mr. F’s record indicates the following instances of self-injurious behavior: He cut his wrists on December 3, 2001. He attempted hanging on September 28, 2002 and January 1, 2003. He attempted hanging on June 16, 2004 and on June 21, 2004 at Bridgewater State Hospital. He cut his wrists in the DDU, requiring steri strips, on November 2, 2004. He attempted hanging on December 5, 2005 in the Special Management Unit at MCI-Norfolk. Defendants have insufficient information to form a belief as to the allegation in the fourth sentence as to

36
what Mr. F reports, and in further answer state that a Bridgewater State Hospital clinician opined that Mr. F. decompensates when held without stimulation for an indefinite period of time. Defendants deny the factual allegation that Mr. F remains in segregation at MCI-Cedar Junction.
48. Defendants admit the factual allegation in the first sentence that Mr. G is a 30-year-old inmate who is currently confined to the DDU at MCI-Cedar Junction. In further answer, defendants state that Mr. G. is serving sentences for rape of a child by force, indecent assault and battery on a child under 14, assault by means of a dangerous weapon and assault and battery. Mr. G has resided in the DDU since August 29, 2006 because he is serving a disciplinary sentence imposed for an incident that occurred on December 29, 2005. On that date, Mr. G came up behind a female clinician, employed by University of Massachusetts Medical School, while she was sitting in a chair. He grabbed her by the hair and shoulder and attempted to put her on the floor. The female clinician was seen crying, limping and yelling for help as she managed to escape from Mr. G. The female clinician had abrasions to her shin and wrist and had hair ripped from her head by Mr. G. The defendants deny the allegation in the second sentence, in that it suggests continuous confinement in segregation. In further answer, defendants state that from January 29, 2004 through December 29, 2005, Mr. G was in general population at North Central Correctional Institution at Gardner including brief stays in the HSU, then from December 29, 2005 through January 6, 2006, Mr. G was in the HSU at Gardner, then Souza Baranowksi Correctional Center. From January 6, 2006 through August 2, 2006, Mr. G was in the SMU at Souza Baranowski. From August 2, 2006 through August 3, 2006, Mr. G was in the HSU and then was sent to Bridgewater State Hospital

37
for an evaluation pursuant to G.L. c. 123, § 18(a). Mr. G was discharged from Bridgewater to the DDU on August 29, 2006. In further answer, defendants state that the decision to commit an inmate to Bridgewater State Hospital is solely a clinical decision governed by applicable Massachusetts laws, and that inmates who do not meet the statutory civil commitment criteria are discharged from Bridgewater State Hospital. Defendants are without sufficient information to form a belief as to the veracity of the allegations in the third sentence. In further answer, defendants state that Mr. G has selfreported that he had behavior problems related to Attention Deficit Disorder as a child, had been on medications and received counseling. Defendants deny the allegations in the fourth sentence and in further answer, state that on or about April 5, 2007, a psychiatrist opined that Mr. G may be schizophrenic, as opposed to malingering. Defendants are without sufficient information to form a belief as to allegations in the fifth sentence and in further answer state that, on one occasion, on or about November 2, 2006, Mr. G told a clinician that he smashed his television because he was aggravated about news he had heard about a triple homicide involving his family. It appeared that Mr. G had not been compliant with his medications at that time. Defendants admit the allegations in the sixth sentence only to the extent that one occasion Mr. G smashed his television and in further answer, state that Mr. G told a clinician he did this because voices told him his family was murdered. Defendants deny the factual allegation in the seventh sentence that Mr. G has been transferred to Bridgewater State Hospital on several occasions but each time has been returned to the DDU within 30 days. In further answer, defendants state that Mr. G. was admitted to Bridgewater State Hospital on August 4, 2006 from the Souza Baranowski Correctional Center and discharged on August 29, 2006 to the DDU.

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Further, defendants state that Mr. G was sent to Bridgewater for purposes of an evaluation, pursuant to G.L. c. 123, § 18(a) and that the decision to commit an inmate to Bridgewater State Hospital is solely a clinical decision governed by applicable Massachusetts laws, and that inmates who do not meet the statutory civil commitment criteria are discharged from Bridgewater State Hospital. In further answer, defendants state that on or about August 23, 2006, a clinician at Bridgewater opined that although Mr. G may have some emotional issues, Mr. G's "current presentation is most consistent with malingering psychotic symptoms" based on a multitude of factors, including but not limited to the fact that Mr. G's presentation of his hearing voices is not consistent with the usual presentation of psychosis, Mr. G's thought process is well-organized and linear, he has good memory and concentration abilities, and Mr. G has "elaborated his symptoms in ways that he has not otherwise presented." This clinician opined that Mr. G did not present with genuine signs and symptoms of mental illness and Mr. G was discharged from Bridgewater to the DDU.
49. Defendants admit the allegations in the first sentence to the extent that Mr. H is an inmate currently confined in the DDU at MCI-Cedar Junction and, in further answering, defendants state that Mr. H turned 42 on April 20, 2007. Defendants deny the factual allegations in the second sentence, and in further answering, defendants state that Mr. H first entered segregation in April 2002 after receiving a disciplinary report for punching and biting a correction officer and that in addition to being confined in either the SMU or DDU, Mr. H has also spent periods of his confinement at Bridgewater State Hospital and Health Services Units in different institutions. Defendants deny the factual allegations in the third sentence in that this sentence refers to Mr. G, not Mr. H and, in

39
further answering, defendants deny that the Department of Correction has any record of Mr. H being diagnosed with Bipolar Disorder and in further answering state that in August 2006, Mr. H was diagnosed with "Personality Disorder NOS, Narcissistic, and Antisocial" and Mr. H's March 2007 treatment plan notes an initial diagnosis of Mood Disorder and Antisocial Personality Disorder. Defendants deny the allegations in the fourth sentence. Defendants admit the allegations in the fifth sentence only to the extent that Mr. H has been hospitalized at Bridgewater State Hospital during his present incarceration and, in further answering, defendants state that Mr. H has been sent to Bridgewater State Hospital three times during his present incarceration for purposes of evaluation pursuant to G.L. c. 123, § 18(a) and that the decision to commit an inmate to Bridgewater State Hospital is solely a clinical decision governed by applicable Massachusetts laws, and that inmates who do not meet the statutory civil commitment criteria are discharged from Bridgewater State Hospital. In further answering, defendants state that in October 2004, a case conference determined that he would neither return to the DDU nor general population, but would be placed in segregation with close monitoring. Defendants admit the allegations in the sixth sentence only to the extent that on two of the three occasions when Mr. H returned from Bridgewater, Mr. H was placed back in the DDU. Defendants deny any characterizations alleged in this sentence and, in further answering, defendants state that when Mr. H was discharged from Bridgewater in March 2003 and September 2003, the discharge notes did not contraindicate segregation placement and that after the third Bridgewater discharge, which occurred after the October 2004 case conference where it was determined Mr. H would not immediately return to the DDU, Mr. H was first sent to the Health Services Unit at MCI-Cedar

40
Junction before going to the SMU/10-Block at MCI-Cedar Junction. Defendants admit the factual allegations of the seventh sentence only to the extent that Mr. H has received numerous disciplinary reports while in the SMU and DDU, pursuant to 103 CMR 430, and, in further answering, defendants state that Mr. H's behaviors that resulted in disciplinary reports were numerous, including but not limited to, assaulting correctional officers with weapons, assaulting correctional officers with feces and possession of weapons. Defendants deny the allegations in the eighth sentence and, in further answering, state that being found guilty of disciplinary infractions may result in any inmate not receiving a thirty-day credit against his DDU sentence and that any sanctions imposed as the result of disciplinary reports are imposed in accordance with 103 CMR 430.
50. Defendants admit the factual allegations in the first sentence and, in further answering, state that Mr. I, who entered 10 Block on September 19, 2006, was released to general population at MCI-Cedar Junction on February 16, 2007, where Mr. I currently resides, because of contraindications for an indeterminate time in segregation. Defendants deny the allegations in the second sentence. In further answering, defendants state Mr. I was in general population at MCI-Cedar Junction from September 28, 2004 through October 14, 2004, again from April 20, 2006 through July 31, 2006 and from February 16, 2007 through the date of this Answer; Mr. I also spent approximately eighteen days in the Health Services Units at MCI-Cedar Junction and SBCC since October 2004; and Mr. I was at Bridgewater State Hospital from July 14, 2005 through August 11, 2005, from September 9, 2005 through February 28, 2006, from March 3, 2006 through March 27, 2006, from March 31, 2006 through April 20, 2006 and from

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August 1, 2006 through August 8, 2006. Defendants admit the allegations in the fourth sentence only to the extent that Mr. I was transferred to Bridgewater State Hospital in the summer of 2005 and, in further answering, defendants state that Mr. I was transferred from SBCC to Bridgewater on July 14, 2005, where he remained until August 11, 2005. Defendants admit the factual allegation contained in the third sentence only to the extent that Mr. I has received mental health diagnoses, and in further answer state that the August 4, 2006 Bridgewater State Hospital G.L. c. 123, § 18(a) evaluator diagnosed him with signs and symptoms of depression. Defendants have insufficient information to form a belief as to the veracity of the factual allegation contained in the fourth sentence that Mr. I lost weight in the summer of 2005 as a result of depression, and in further answer, defendants state that a record dated July 2005 indicates that Mr. I lost about twenty pounds over an eighteen-month period and that Mr. I, along with other inmates, engaged in a hunger strike in June 2005, complaining that food portions were too small. Mr. I had six documented meals missed during the hunger strike. In further answer, defendants state that when Mr. I was discharged from Bridgewater in August 2005, Mr. I had regained his weight and that Mr. I told evaluators he had never lost his appetite, but claimed he was not given enough food at Souza Baranowski to maintain his weight. Defendants admit the allegations in the fifth sentence. Defendants deny the allegations in the sixth sentence as characterization of the admissions to Bridgewater as "cycl[ing] back and forth between Bridgewater and segregation." In further answering, defendants state that on or about July 14, 2005, September 9, 2005, March 3, 2006 and March 31, 2006, Mr. I went to Bridgewater from the Health Services Unit at SBCC and on August 1, 2006, Mr. I went to Bridgewater from the Health Services Unit at MCI-Cedar Junction;

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when Mr. I returned from Bridgewater to MCI-Cedar Junction on April 20, 2006. Mr. I was sent to general population, and on Mr. I's return from Bridgewater to MCI-Cedar Junction on August 8, 2006, Mr. I first went to the Health Services Unit before being moved to the SMU. In further answering, defendants state that the decision to commit an inmate to Bridgewater State Hospital is solely a clinical decision governed by applicable Massachusetts laws, and that inmates who do not meet the statutory civil commitment criteria are discharged from Bridgewater State Hospital. Defendants admit the factual allegations in the seventh sentence only to the extent that Mr. I cut his throat in 2005 and that he was subsequently committed to Bridgewater State Hospital. In further answering, the defendants state that on September 8, 2005, which is still the summer, a mental health clinician was speaking to Mr. I from outside his cell in the SMU in an attempt to convince Mr. I to move to the Health Services Unit (HSU) and be on a mental health watch, but Mr. I refused, stating he had things to do, such as calling his son and watching the Patriots game, but when the mental health clinician again suggested Mr. I move to the HSU, Mr. I said "I'll...show you," then cut his throat with a razor; the length of the cut was approximately 4-5 inches. Correctional officers secured Mr. I and carried him to the HSU, where medical staff took over. Mr. I was transported that day to an outside hospital via ambulance; Mr. I returned from the outside hospital that same day. The following day, September 9, 2005, Mr. I was admitted to Bridgewater State Hospital pursuant to G.L. c. 123, § 18(a), where a mental health supervisor noted that Mr. I's neck had minor abrasions and that Mr. I reported being compliant with his medications. The defendants admit the allegations in the eighth sentence to the extent that Mr. I was discharged from Bridgewater State Hospital to the SMU at SBCC on February 28, 2006

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and in further answering, state that the decision to commit an inmate to Bridgewater State Hospital is solely a clinical decision governed by applicable Massachusetts laws, and that inmates who do not meet the statutory civil commitment criteria are discharged from Bridgewater State Hospital. Defendants deny the factual allegation contained in the eighth sentence that segregation was contraindicated, and in further answer, state that the August 4, 2006 Bridgewater State Hospital G.L. c. 123, § 18(a) evaluator opined that Mr. I could tolerate a period of segregation that is time-limited and commensurate with his infractions. Defendants deny the allegation in the ninth sentence that Mr. I attempted suicide between February 28, 2006 and March 3, 2006 and in further answering, defendants state that Mr. I was returned to Bridgewater, pursuant to G.L. c. 123, § 18(a), on March 3, 2006 after Mr. I threatened to commit suicide. Defendants admit the allegations in the tenth sentence and, in further answering, defendants state that Mr. I was released from Bridgewater to the SMU at SBCC on March 27, 2006 and was recommitted to Bridgewater on March 31, 2006 after Mr. I, while on mental health watch in the SBCC HSU on March 30, 2006, tied the seam from his mattress around his neck, causing him to choke; correctional officers cut the seam away and Mr. I was then transported to an outside hospital by ambulance. Defendants admit the allegations in the eleventh sentence only to the extent that Mr. I was discharged from Bridgewater State Hospital in April 2006 to MCI-Cedar Junction. In further answer, defendants state that the decision to commit an inmate to Bridgewater State Hospital is solely a clinical decision governed by applicable Massachusetts laws, and that inmates who do not meet the statutory civil commitment criteria are discharged from Bridgewater State Hospital. In further answering this eleventh sentence, defendants state that when Mr. I was

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discharged from Bridgewater State Hospital on April 20, 2006, he went to general population in MCI-Cedar Junction, not 10 Block, and that Mr. I remained in general population until July 31, 2006, when Mr. I was moved to 10 Block after a correctional officer found pills in Mr. I's cell, for which Mr. I had no prescriptions. Defendants admit the allegations in the twelfth sentence only to the extent that Mr. I was transferred to 10 Block on September 19, 2006 to await disciplinary action for various charges, one of which was related to Mr. I lighting a fire in his cell and, in further answering, defendants state that on September 19, 2006, at approximately 7:40 P.M., Mr. I threatened a correctional officer; also on September 19, 2006, at approximately 11:08 P.M., a correctional officer responded to Mr. I's cell, where he had set fire to papers and other debris in his cell; after correctional officers extinguished the fire, Mr. I was seen to be brandishing a razor blade and he refused repeated orders to step to the cell bars to be cuffed; as a result, an extraction team was assembled and chemical agents had to be used in order to subdue Mr. I, who was then taken to the Health Services Unit. Defendants admit the allegations in the thirteenth sentence.
51. Defendants admit the allegations in the first sentence only to the extent that Mr. J is a 29-year-old inmate currently in the SMU at SBCC, where he has been for over one year and, in further answering, defendants state that Mr. J was initially placed in the SMU at SBCC on March 23, 2006 after Mr. J, while in general population in the Special Housing Unit at SBCC, struck another inmate and then placed him in a headlock; Mr. J is not awaiting an out-of-state transfer. In further answering, defendants state that since entering the SMU on March 23, 2006, Mr. J has accumulated approximately twenty-three disciplinary reports for numerous infractions, including but limited to

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threatening correctional officers, assaulting other inmates and correctional officers with urine, possession of razors and engaging in a group demonstration and that Mr. J has several disciplinary reports pending. Defendants are without sufficient information to form a belief as to the veracity of the allegations in the second sentence. Defendants deny the allegations of the third sentence, and in further answer state that testing revealed that Mr. J’s academic skills are commensurate with his language skills and are generally at third or fourth grade levels. In further answer to third sentence, defendants state that records indicate that Mr. J completed the tenth grade in his schooling, and that, while incarcerated, received the BRIGANCE® Comprehensive Inventory of Basic Skills test on March 4, 1999 and on May 16, 1999 as pre- and post- testing. Defendants deny the allegations in the fourth sentence. In further answer, defendants state that all inmates are tested at intake with the TABE (Test of Adult Basic Education) to ascertain their grade levels in math, reading and language, and that Mr. J was tested at MCI-Concord on March 1, 1997 and at OCCC on December 23, 2003. Defendants deny the allegations in the sixth sentence, and in further answering state that Mr. J has received the following diagnoses from psychiatry staff: Probable bipolar disorder diagnosed on February 9, 2007; Mood and psychotic disorder, Not Otherwise Specified, diagnosed on November 22, 2006; and Mood Disorder was suspected on October 3, 2006. Defendants deny the allegations in the fifth sentence.
52. Defendants admit the allegations in the first sentence only to the extent that Mr. K is currently a 33-year old inmate. In further answer, defendants state that Mr. K was diagnosed with Antisocial Personality Disorder in October 2005; Bipolar Disorder, Borderline Personality Disorder and Post-Traumatic Stress Disorder in May of 2005;

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Bipolar Disorder and Post-Traumatic Stress Disorder in July of 2006; and Psychotic and Mood Disorder, Not Otherwise Specified, in October of 2006. In further answering, Mr. K was recently blinded in one of his eyes after he attacked another inmate in the gymnasium, and a third inmate struck him in the eye with a weapon. Defendants deny the allegations contained in the second sentence. Defendants admit that, as of the date of this Answer, Mr. K is not in segregation and admit that Mr. K. previously has been in segregation at Souza Baranowski Correction Center (SBCC) and two other facilities. Defendants deny the characterization that Mr. K has been in segregation at "several" facilities other than SBCC. By way of further answer to this second sentence, defendants state that Mr. K has also been in segregation at MCI-Norfolk and Old Colony Correctional Center. Defendants deny the allegation in the third sentence that Mr. K twice attempted suicide in 2006. By way of further answer, defendants state that on June 8, 2005, at approximately 9:45 A.M., after being cleared for placement in the SMU by medical staff and a mental health clinician, Mr. K was placed in the SMU at MCINorfolk; that same date, at approximately 11:00 A.M., Mr. K tied a sheet around his neck, stepped off the toilet in his cell, lowered himself to his knees and leaned forward so that the sheet strained against his neck; correctional officers cut the sheet with safety scissors. By way of further answer, defendants state that on September 13, 2005, at approximately 12:45 P.M, in the SMU at MCI-Norfolk, Mr. K was found standing on his bed with a sheet tied around his neck, with the other end tied to window bars; Mr. K informed a correctional officer that he would jump off his bed and hang himself if he did not see the superintendent; a short time later, Mr. K lifted his legs and placed his full weight against the sheet; correctional officers cut the sheet with a utility tool. Defendants

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deny the allegations of the fourth sentence and, in further answering, state that on June 8, 2005, Mr. K had seen a mental health clinician at approximately 9:30 A.M. and was cleared for segregation placement at that time, and that correctional officers contacted correctional mental health staff at approximately 10:55 A.M., based upon the actions of Mr. K. By way of further answer, defendants state that on September 13, 2005, at approximately 12:45 P.M. Mr. K stated he would not talk to mental health staff, but that an individual from mental health was present outside Mr. K's cell when he lifted his legs and placed his weight against the sheet. Defendants deny the allegations in the fifth sentence of this paragraph and, in further answering, state that on June 8, 2005, medical staff, determined that Mr. K had a pulse, with an initial heart rate of 83, and was breathing before Mr. K was transported to an outside hospital (Norwood/Caritas). In further answer, defendants state that Mr. K was transported by the Norfolk Fire Department; and deny the allegation that he was transported out of the institution by helicopter. In further answer, defendants state that a doctor from UMASS intubated Mr. K in his cell. Inasmuch as the sixth sentence of this paragraph contains plaintiff's general characterizations of what occurred, along with a non-referenced medical conclusion, defendants have insufficient information to form a belief as to the veracity of the conclusory allegations set forth. By way of further answer, defendants state that when correctional officers were cutting the sheet from Mr. K's neck, Mr. K defecated in his pants and on the floor and that Mr. K was breathing and had a regular pulse when placed in an ambulance before being transported to an outside hospital. In further answer, defendants state that while in the ambulance, Mr. K spoke with correction officers and EMTs, wherein he indicated he did not want to be reclassified to MCI-Cedar Junction or

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SBCC and threatened to continue to hang himself; Mr. K was released from the outside hospital that same day. Defendants admit the allegations of the seventh sentence only to the extent that Mr. K could be placed in segregation pursuant to applicable SMU regulations, 103 CMR 423.
53. Defendants admit the allegation in the first sentence that Mr. L is 24 years old, but deny that Mr. L is currently confined in the DDU at MCI-Cedar Junction and, in further answering, state that Mr. L is currently confined at Bridgewater State Hospital pursuant to G.L. c. 123, § 18(a). Defendants deny the allegations in the second sentence and deny the characterization that Mr. L has spent "most of" his time while incarcerated in the DDU. By way of further answer, defendants state that Mr. L's continuous term of confinement with the Department of Correction began on November 18, 2002, when Mr. L was twenty years old and that he has spent some of that time in the DDU, as well as in Bridgewater State Hospital, MCI-Concord and SBCC. Defendants admit the factual allegations contained in the third sentence only to the extent that Mr. L has had psychiatric diagnoses, and in further answer state that in March of 2007 he was diagnosed with Severe Borderline Personality and Post Traumatic Stress disorder. Defendants admit the allegations in the fourth sentence only to the extent that Mr. L has scars on his face, arms and leg. Defendants have insufficient information to form a belief as to the veracity of the allegation in the fifth sentence as to what Mr. L reports. In further answer, defendants state that Mr. L has swallowed objects, including glass from his television, cable wires and razors. Defendants admit the factual allegations in the sixth sentence only to the extent that Mr. L has been confined in Bridgewater State Hospital thirteen times during his present incarceration, and in further answer, state that inmates who do

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not meet the statutory civil commitment criteria are discharged from Bridgewater State Hospital. The defendants admit the factual allegations in the seventh sentence only to the extent that Mr. L has new charges pending for crimes allegedly committed during his present incarceration and deny plaintiff's characterization of Mr. L's sentence. In further answer, defendants state that Mr. L’s criminal sentence for assault and battery with a dangerous weapon, attempts to commit crimes and assaulting a correction officer commenced on or about November 18, 2002 and is scheduled to wrap on or about November 12, 2010. Defendants deny the factual allegations in the eighth sentence, and in further answer, state that on April 13, 2007, a Bridgewater State Hospital clinician opined that while Mr. L presents a risk of harm to self or others, this is not related specifically to mental illness. Defendants admit the factual allegations in the ninth sentence to the extent that Mr. L has charges of assault and battery with a dangerous weapon, assault and battery on a correctional officer and threats to commit a crime pending in Norfolk Superior Court and that these crimes were allegedly committed during his present incarceration and, in further answer, defendants state that Mr. L is presently serving consecutive sentences for convictions of assault and battery with a dangerous weapon, attempts to commit crimes and assaulting a correctional officer; the first of these charges stemmed from a period of time where Mr. L was civilly committed at Bridgewater State Hospital while awaiting trial on unarmed robbery charges where Mr. L repeatedly stabbed another patient at Bridgewater and that the remainder of the convictions stem from a later incident, also at Bridgewater where Mr. L stabbed another patient at Bridgewater then assaulted a female correction officer and held a shank to her neck. Defendants are without sufficient information to form a belief as to the veracity of

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the allegations in the tenth sentence as to what Mr. L reportedly said to some unnamed person on an unspecified date.
54. Defendants admit the factual allegations in the first sentence. Defendants admit the factual allegations in second sentence only to the extent that Mr. M has been diagnosed with Delusional Disorder (Persecutory and Somatic Type) and Personality Disorder, Not Otherwise Specified (with Narcissistic and Histrionic Features). In further answer, defendants state that his current diagnosis is Severe Personality Disorder with Intermittent Psychosis with Obsessive Quality. Defendants are without sufficient information to form a belief as to the veracity of the factual allegations in the third sentence that Mr. M has "been hospitalized many times" including eight admissions to Bridgewater State Hospital, as these allegations are so broad as to encompass Mr. M's entire life and, in further answering, defendants state that since Mr. M began serving his current sentence for first-degree murder on March 21, 1991, Mr. M has been admitted to Bridgewater State Hospital eight times. Defendants admit the factual allegations in the fourth sentence only to the extent that Mr. M was in the SMU at MCI-Norfolk from November 3, 2005 through November 11, 2005 and reentered the MCI-Norfolk SMU on November 21, 2005. In further answering, state that prior to entering the SMU on November 3, 2005, Mr. M had been in general population at MCI-Norfolk from August 8, 2005 until November 3, 2005; prior to that Mr. M had been at Bridgewater State Hospital from February 24, 2004 through August 8, 2005. Defendants need make no response to the factual allegations contained in the fifth sentence of this paragraph because the mental health records speak for themselves. Defendants deny the factual allegations in the sixth sentence as to the reasons Mr. M received disciplinary reports and

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defendants are without sufficient information to form a belief as to the veracity of the allegations as to what Mr. M supposedly believed about mental health staff. In further answer, defendants state that Mr. M. had a Rogers order for medication. By way of further answer, defendants state that, pursuant to 103 CMR 430, Mr. M has received approximately forty-seven disciplinary reports during his incarceration. Defendants admit the factual allegations in the seventh sentence and in further answer, state that such transfer was in accordance with applicable Massachusetts law. Defendants admit the allegations contained in the eighth sentence to the extent that a commitment petition was filed in September 2006, and in further answer state that the clinical opinion is that Mr. M’s thinking has become increasingly paranoid and delusional, and his behavior disorganized since he was placed in segregation in MCI-Norfolk.
55. Defendants admit the allegations in the first sentence and, in further answering, state that Mr. N was confined in the SMU and the DDU, starting on September 3, 2002, pursuant to 103 CMR 423 and 103 CMR 430, until January 29, 2007, as a result of an incident where Mr. N, while in general population, was involved in a group confrontation among inmates where two inmates were stabbed. Defendants admit the factual allegations in the second sentence only to the extent that Mr. N has been diagnosed as very mildly mentally retarded with borderline intellectual functioning, is no longer in the DDU and, in further answering, state that Mr. N was released early from the DDU to general population in MCI-Cedar Junction on January 29, 2007 due to mental health contraindications, and that Mr. N since January 29, 2007, has been housed in general population at MCI-Cedar Junction. Defendants admit the allegations of the third sentence insofar as Mr. N has been diagnosed with Mild Mental Retardation (Borderline

52
Intellectual Functioning), and is unable to read or write, classifying this as a Reading Disorder, Disorder of Written Expression. By further answer, state that DOC records indicate Mr. N completed the eleventh grade, has requested to participate in the GED program, and is working with Literacy Volunteers of America. Defendants are without sufficient information to form a belief as to the veracity of the plaintiff's claim in the fourth sentence that Mr. N. has attempted suicide several times since age 13 and, in further answering, state that during his present incarceration, which began on May 30, 2000, Mr. N has no documented suicide attempts; on one occasion, August 1, 2005, Mr. N threatened to cut his wrists, but when the mental health clinician arrived Mr. N denied being suicidal and said he made false threats in an attempt to get attention from staff; Mr. N did not cut his wrists. Defendants deny the allegations of the fifth sentence, but in further answer state that, on April 9, 2007 while housed in general population, Mr. N complained to mental health staff that he was hearing voices and not sleeping, and Mr. N appeared anxious and irritable. Defendants admit the allegations of sixth sentence. Defendants admit the factual allegations on the seventh sentence only to the extent that Mr. N was in the DDU or an SMU from September 3, 2002 until January 29, 2007, with the exception of a total of approximately eight days where Mr. N was in the HSU in MCI-Cedar Junction and SBCC.
56. Defendants admit the factual allegations in the first sentence of this paragraph only to the extent that Mr. O is a 32-year old inmate currently confined in the DDU and, in further answering state that Mr. O has been in the DDU for approximately two years and seven months as a result of guilty findings on numerous disciplinary charges, including but not limited to, assaulting another inmate, assaulting a correctional

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officer, possession of a weapon, destroying property after escaping from his cell as well as breaking through the individual exercise enclosure, resulting in Mr. O being sentenced to a total of four years and three months in the DDU In further answering, Mr. O's current scheduled release date from the DDU predates Mr. O's scheduled release date from prison. The defendants are without sufficient information to form a belief as to the veracity of the factual allegations in the second sentence that Mr. O has a long history of "mental health issues" starting in the third grade, but, in further answer, states that Mr. O’s record reflects that he has had a history of mental health issues since childhood. The defendants deny the allegations of the third sentence, and in further answering, state that Mr. O has been diagnosed with mood disorder, not otherwise specified; general anxiety disorder; and bipolar disorder and segregation placement has not been contraindicated for Mr. O. Defendants deny plaintiff's characterization, contained in the fourth sentence, of Mr. O's actions in the DDU, in every instance, as being suicide attempts and admit the factual allegations that Mr. O has been placed in four-point restraints several times while in the DDU. In further answer, defendants state that on December 30, 2005, while in 10 Block in MCI-Cedar Junction, Mr. O complained of a toothache and threatened to kill himself if he was not brought to the Health Services Unit, at which time, Mr. O held a piece of a plastic fork against his throat but did not injure himself; on March 22, 2006, while Mr. O was in 10 Block in MCI-Cedar Junction, a correctional officer found that Mr. O's ankles were bleeding and that Health Services believed the wounds to be selfinflicted, although Mr. O claimed the wounds were caused by ankle restraints; on May 19, 2006, while in 10 Block in MCI-Cedar Junction, a correctional officer found Mr. O in his cell, squatting by his sink with a ligature around his neck, with the other end tied to a

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fire alarm, and that Mr. O stood up various times to relieve pressure from his neck, and when the response team arrived, Mr. O removed the ligature; on May 30, 2006, while in 10 Block in MCI-Cedar Junction, a correctional officer found Mr. O standing on the sink in his cell with a towel wrapped around his neck, but without the other end of the towel attached to anything, and Mr. O threatened to hang himself; on October 5, 2006, Mr. O, while in the DDU, covered his cell window and then cut his right wrist with a paper clip; on December 14, 2006, at approximately 11:05 A.M., Mr. O, while in the DDU was seen by a correctional officer to take a torn piece of sheet and wrap it around his neck; on December 14, 2005, at approximately 3:21 P.M., Mr. O, while in the DDU, was found with a bed sheet around his neck. In further answer, defendants state that Mr. O was placed in four-point restraints in accordance with 103 CMR 505.00. Defendants deny the allegations in the fifth sentence of this paragraph, but, in further answer, state that the medical record does indicate that Mr. O has, at times, had difficulty sleeping, and has presented as angry, agitated, anxious, and aggravated to mental health staff on several occasions. Defendants are without sufficient information to form a belief as to the veracity of the allegation in the sixth sentence as to what Mr. O has reported to unknown individuals about December 2006. In further answering, defendants state that records indicate that Mr. O cut his wrist in December 12, 2006, and, in further answering, was thereafter removed from his cell to an observation room in the DDU. Defendants are without sufficient information to form a belief as to the veracity of the allegations in the seventh sentence because no time frame is provided and in further answer, defendants state that to the extent this sentence appears to refer to December 12, 2006, defendants deny the allegations and further state that on December 12, 2006, at approximately 3:00

55
P.M, Mr. O smeared feces over his cell window and himself, protesting that fact the mental health had placed him on "eyeball watch" and that Mr. O was placed in the shower, given a new smock and placed in a new cell that same day.
57. Defendants admit the allegations in the first sentence to the extent that Mr. P is a 27-year old inmate, and, in further answer, state that he has been diagnosed with post-traumatic stress disorder; major depression with psychotic features; and anxiety disorder, not otherwise specified. Defendants admit the factual allegations in the second sentence to the extent that Mr. P was transferred out of the SMU at SBCC in December 2006 and defendants deny so much of the second sentence that characterizes Mr. P's placement in the SMU as being a year and a half in duration for the sole purpose of awaiting an out-of-state transfer and, in further answering, defendants state that Mr. P was placed in the SMU at SBCC on October 4, 2005 because of verbal altercations Mr. P had with several inmates in the Special Housing Unit (SHU) at SBBC and that, after one such altercation, another inmate in the SHU threatened to kill Mr. P; Mr. P also had numerous enemy issues and a gang had issued an "order" to kill Mr. P. In further answer defendants state that Mr. P was not finally recommended for out-of-state transfer until March 2, 2006, when Mr. P's appeal from the Classification Board's December 2005 preliminary recommendation of out-of-state transfer, due to Mr. P's protective custody needs and enemy situation, was denied. By way of further answer to the second sentence, defendants state that Mr. P remained in the SMU from October 4, 2005 until December 19, 2006, a period of approximately one year and two months, when it was determined that the out-of-state transfer was no longer necessary as Mr. P did not have any enemy issues in the SHU at SBCC at that time and Mr. P was released to general population in

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the SHU on December 19, 2006. Defendants are without sufficient information to form a belief as to the veracity of the allegations in the third sentence of this paragraph. Defendants admit the allegations of the fourth sentence insofar that Mr. P is currently taking anti-anxiety and anti-depressant medications, and, in further answer, is also taking a medication for insomnia. Defendants deny the allegations in the fifth sentence and, in further answering, state that on December 5, 2005, after being told he was being recommended for an out-of-state placement, Mr. P said "the only way I'm going out of state is in a body bag;" on December 27, 2005, Mr. P held a razor blade against his throat and threatened self-harm; and on September 11, 2006, Mr. P suggested he would commit suicide if he were not transferred to another institution. Defendants deny the allegations contained in the sixth sentence, and, in further answer, state that Mr. P’s clinician informed Mr. P, by letter, on September 28, 2006, that there are problems created for him by lengthy segregation, and that this letter was brought to the attention of the Superintendent by an attorney from Massachusetts Correctional Legal Services, Inc. on or about December 7, 2006. Defendants deny the characterizations in the seventh sentence and, in further answering, state that Mr. P was released from the SMU on December 19, 2006. Defendants deny the allegations in the eighth sentence.
58. Defendants admit the factual allegations in the first sentence only to the extent that Mr. Q is a 28-year-old inmate and that, since May 2006, Mr. Q has spent much of that time in segregation units and deny so much of the first sentence that implies Mr. Q was continuously confined in segregation at North Central Correctional Institution at Gardner (NCCI Gardner) from the commencement of his sentence until February 2007. In further answering, defendants state that from June 1, 2005, when Mr. Q began serving

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his current sentences for convictions of mayhem and assault and battery with a dangerous weapon, until November 8, 2005, Mr. Q was in general population at MCI-Concord, with the exception of about five days when Mr. Q was in the Health Services Unit; from November 1, 2005 until May 12, 2006, Mr. Q was in general population at MCI-Norfolk, with the exception of two days where he was in the Health Services Unit; from May 12, 2006 until July 24, 2006, Mr. Q was in the SMU at MCI-Norfolk; from July 24, 2006 through July 28, 2006, Mr. Q was in the Health Services Unit at MCI-Norfolk; on July 28, 2006, Mr. Q entered general population at MCI-Shirley (Medium) and then went into the Health Services Unit for three days; from July 31, 2006 until August 13, 2006, Mr. Q was in general population at MCI-Shirley; from August 13, 2006 through November 28, 2006, Mr. Q was in the SMU at MCI-Shirley, with the exception of five days where he was in the Health Services Unit; from November 28, 2006 through November 30, 2006, Mr. Q was in general population at SBCC; from November 30, 2006 through December 4, 2006, Mr. Q was in Health Services Unit at SBCC; from December 4, 2006 through February 27, 2006, Mr. Q was in the SMU at NCCI Gardner, with the exception of three days where he was in the Health Services Unit at NCCI Gardner; and from February 27, 2007 to the present, Mr. Q has been in the Protective Custody Unit at SBCC. Defendants are without sufficient information to form a belief as to the veracity of the allegation in the second sentence that Mr. Q has a "long history" of mental illness, but, in further answer, state that records indicate that Mr. Q has been treated for mental health issues since his childhood, and that he has been diagnosed with bipolar disorder, not otherwise specified, and personality disorder with borderline and antisocial traits. Defendants admit the factual allegations in the third sentence. Defendants admit the factual

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allegations in the fourth sentence only to the extent that Mr. Q has been placed on mental health watch several times and that while in the SMU at MCI-Norfolk on July 24, 2006, Mr. Q cut himself on the left forearm and that at MCI-Shirley on November 15, 2006, Mr. Q tied a sheet around his neck, with the other end tied to a vent and, in further answering, defendants state that on July 24, 2006, Mr. Q stated he cut his arm because he was bored, wanted attention and wanted to speak to mental health and that on November 15, 2006, Mr. Q's actions, in placing the sheet around his neck, began after he was told that the Classification Board recommended that he be moved to SBCC and that later that afternoon, while in the Health Services Unit, Mr. Q stated he wanted to stab a correctional officer because of the classification decision. Defendants admit the factual allegations in the fifth sentence only to the extent that Mr. Q banged his head against the wall several times on January 9, 2007 and, in further answering, defendants state that these events occurred while Mr. Q was in the Health Services Unit. Defendants are without sufficient information to form a belief as to the veracity of the allegations in the sixth sentence about what Mr. Q supposedly "reports" to unnamed persons. Defendants admit the factual allegations of the seventh sentence only to the extent that Mr. Q takes Klonipin for agitation and anxiety, Valproic Acid for mood stablization, Elavil as an antidepressant, Haldol as an anti-psychotic, and Cogentin as an anticholinergic.
59. Defendants admit the factual allegations of the first sentence. Defendants are without sufficient information to form a belief as to the veracity of the factual allegation contained in the second sentence that Mr. R. is dyslexic, attended special education classes throughout his schooling , and in further answer state that Mr. R. has reported that he is dyslexic and has attended special education classes throughout his

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schooling. Defendants are without sufficient information to form a belief as to the veracity of the factual allegation in the third sentence that Mr. R was placed in a mental institution when he was 14 years old. Defendants admit the factual allegations in the fourth sentence only to the extent that Mr. R was at Bridgewater State Hospital for a thirty-day period and that Mr. R's placement in the SMU at SBCC in July 2005 was due to Mr. R having enemies in general population at both MCI-Cedar Junction and SBCC and, in further answering, defendants state that Mr. R has been in protective custody due to enemy issues and that Mr. R also told Department of Correction officials he had enemy issues and refused a prior placement in general population at MCI-Cedar Junction for that reason. In further answer, defendants state that Mr. R entered the SMU at SBCC on July 21, 2005, after having been in general population, where he remained until August 12, 2005. On August 12, 2005, Mr. R was moved back to general population at SBCC, where he remained until September 24, 2005. Mr. R reentered the SMU at SBCC on September 24, 2005, where he remained until November 8, 2005. From November 8, 2005 until November 15, 2005, Mr. R was back in general population at SBCC. From November 15, 2005 until August 21, 2006, Mr. R was in the SMU at SBCC. From August 21, 2006 through August 29, 2006, Mr. R was in the Health Services Unit at SBCC. From August 29, 2006 through November 24, 2006, Mr. R was in the SMU at SBCC; from November 24, 2006 through November 27, 2006, Mr. R was in the Health Services Unit at SBCC; from November 27, 2006 through December 27, 2006, Mr. R was at Bridgewater State Hospital; from December 27, 2006 through February 23, 2007, Mr. R was at the SMU at SBCC; from February 23, 2007 through February 26, 2007, Mr. R was in the Health Services Unit at SBCC; from February 26, 2007 through April 12,

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2007, Mr. R was in the SMU at SBCC and from April 12, 2007 through April 24, 2007, Mr. R was in the HSU. In further answer, defendants state that on April 24, 2007, Mr. R. entered general population at MCI-Shirley. Defendants admit the factual allegations contained in the fifth and sixth sentences of this paragraph to the extent that these allegations set forth what Mr. R. reported. Defendants admit the factual allegations contained in the seventh sentence to the extent that Mr. R. refused antipsychotic medication in prison and was medication compliant in Bridgewater State Hospital. Defendants admit the factual allegations contained in the eighth sentence only to the extent that Mr. R’s symptoms abated, that he was returned the special management unit at SBCC, and that the discharging clinician had opined that “’[i]f either a protracted period in segregation and/or lengthy delay in settling his classification and legal issues should compromise this belief system, Mr. [R] will likely decompensate and quite possibly need a period of inpatient psychiatric hospitalization.” In further answer, defendants state that Mr. R has not since returned to Bridgewater State Hospital. Deliberate Indifference
60. Defendants deny all allegations contained in this paragraph. 61. Defendants need make no response to the allegations contained in this paragraph since the report of the Governor’s Special Advisory Panel on Forensic Mental Health speaks for itself. 62. Defendants deny the factual allegation that the name of DOC’s mental health vendor in 1990 was “Prison Mental Health Service,” and in further answer state that said vendor was Goldberg Medical Associates. Defendants lack sufficient information to respond to the factual allegation that there were extensive discussions.

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Defendants need make no response to the allegations concerning the content of the letter referenced in this paragraph because the letter speaks for itself. In further answer, defendants assert that the proposal set forth in the letter was founded upon the expectation of statutory changes that would close the Treatment Center for Sexually Dangerous Persons, and that such statutory changes did not occur. Defendants deny the characterization that inmates “languish” in segregation, and deny the characterization that individuals mentioned by name in the letter “are inappropriately and unnecessarily housed in segregation.” In further answer, defendants state that of the seven inmates identified by name in the letter as spending time in segregation, three are no longer in custody, one is at Bridgewater State Hospital, one cannot be identified because of the commonality of his name, one is in segregation at Old Colony Correctional Center, and one is in the DDU, having murdered another inmate while housed in a protective custody unit. Defendants deny the characterization that said inmates “remain” in segregation, inasmuch as the characterization incorrectly suggests continuous segregation since 1990.
63. Defendants need make no response to the allegations regarding the content of the “Salvi” report because the report speaks for itself.
64. Defendants need make no response to the allegations regarding the content of the Report of the Mental Health Services Subgroup because the report speaks for itself. In further answering, defendants state that the recommendations made by this Subgroup were taken into account in developing the Request for Response for the contract for vendor health services, which is scheduled to be implemented on July 1, 2007.
65. Defendants need make no response to the allegations regarding mortality reviews and the Hayes report because these reports speak for themselves. Defendants

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deny the allegations that DOC hired consultants to conduct mortality reviews after the suicides of Mr. A and Mr. B, and, in further answer, state that the DOC had contracted with consulting psychiatrists to review mortality reviews prior to the date of the suicide of Mr. A. The defendants deny the remaining allegations in the paragraph. In further answer, defendants state that the Hayes Report, dated January 31, 2007, made 29 recommendations; the Department’s planning process to address the recommendations began on February 6, 2007; the Department issued a comprehensive corrective action plan on February 12, 2007 that prioritized the time frame for the implementation of each recommendation, identified the managers and divisions responsible for ensuring sustained corrective action, identified the intended product and outcome, and identified the appropriate systems and processes to ensure monitoring, oversight and continuity; and the Department continues to implement the Hayes Report recommendations.
66. Defendants deny the allegations in the first sentence of this paragraph and, in further answering, state that in 2002, Dr. Kenneth Appelbaum provided a five-page document to Department of Correctional personnel at a meeting; this five-page document was entitled, "Proposed DDU Exclusionary and Diversionary Criteria," and suggested an alternative unit for DDU inmates who had certain Axis I and Axis II disorders; this "proposal" did not suggest a new "high-security residential treatment facility," but rather a combined mental health/behavioral health unit, consisting of a total of fifteen to twenty beds, as well as the use of RTU segregation cells as an alternative. Defendants admit the allegations in the second sentence only to the extent that this single proposal included brief discussions of staffing, some selection criteria and a general overview of some possible components of programming and defendants deny the remainder of the

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allegations in the second sentence, including the characterization of this proposal as "comprehensive." In further answering, defendants state that the proposal included a suggestion of "phase level programming," whereby the inmates would begin at level one in a 23-hour lock-down with no privileges, and whereby privileges would be added upon attainment of behavioral expectations, including self-control of inappropriate behaviors. It was recognized that some inmates may be ineligible for the highest level due to their offenses. Defendants admit the allegations in the third sentence only to the extent that this proposal was not implemented, and defendants deny the allegations that there were several proposals that have been rejected. In further answer to this paragraph, defendants state the following: The outstanding Request for Response for Comprehensive Health Services to the Massachusetts Prison Population, which was issued on December 15, 2006, requires that bidders submit a proposal for a 60-bed maximum security residential treatment unit for inmates with serious and persistent mental illness to open on July 1, 2007, and additionally, a 15-bed male behavioral management unit and the establishment of behavioral management services at MCI-Framingham. The DOC is evaluating the responses of six bidders, and the contract commencement date will be July 1, 2007. In accordance with Recommendation 8 of the Hayes Report, an assessment has been conducted of Block 9 at MCI-Cedar Junction to function as a Behavioral Management Unit for ten inmates and an assessment of a block at the Souza-Baranowski Correctional Center to function as an alternative to segregation, to determine the costs and work needed to establish such unit, called the Behavioral Management Unit.

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67. Defendants need not make any response to the allegations contained in this paragraph for the reason that the record of the March 20, 2006 legislative hearing speaks for itself.
68. Defendants admit that the DOC commissioned a suicide prevention assessment, but, by way of further answer, the commission date was in July, not September, of 2006, and further state that the DOC is continuing to use Mr. Hayes as a consultant in DOC’s implementation of his recommendations. Defendants need make no response to the content of the Hayes Report in the second and third sentences, as the Hayes Report speaks for itself. By way of further answer, defendants state that the pending Request for Response for a new contract for medical and mental health services, which requires mental health staffing for a residential treatment unit at maximum security, was released to the public on December 16, 2006, and takes effect on July 1, 2007.
69. Defendants deny all allegations contained in this paragraph. 70. This paragraph contains a recitation of case law and legal argument, and therefore, no responsive pleading is required. By way of answering further, defendants state that no reported state or federal case decisions have held that the Massachusetts Department of Correction has engaged in any constitutional violations by its use of segregation, that the Supreme Judicial Court in Torres v. Commissioner, 427 Mass. 611 (1998) specifically held that the use of, and placement of inmates in, the DDU was not unconstitutional, and that the Supreme Judicial Court in Libby v. Commissioner, 385 Mass. 421 (1982) held that placement of inmates in 10 Block was not unconstitutional.

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71. Defendants deny the factual allegation that each of the individual defendants is aware of each report and recommendation described in the complaint. COUNT I
72. Defendants repeat and incorporate by reference their responses to paragraphs 1 through 71 of the complaint.
73. This paragraph contains legal conclusions that do not require a responsive pleading. To the extent a response is required, defendants deny all allegations contained in this paragraph.
74. Defendants deny the allegations contained in this paragraph. 75. Defendants deny the allegations contained in this paragraph. 76. Defendants deny the allegations contained in this paragraph. COUNT II 77. Defendants repeat and incorporate by reference their responses to paragraphs 1 through 71 of the complaint. 78. This paragraph contains legal conclusions that do not require a responsive pleading. Defendants are also without sufficient knowledge to admit or deny the allegations stated therein. To the extent an answer is required, defendants deny the allegations contained in this paragraph. 79. Defendants admit the factual allegation that the Department of Correction receives some federal funds. 80. Defendants deny the allegations contained in this paragraph. 81. Defendants deny the allegations contained in this paragraph. 82. Defendants deny the allegations contained in this paragraph.

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COUNT III 83. Defendants repeat and incorporate by reference their responses to
paragraphs 1 through 71 of the complaint. 84. This paragraph contains legal conclusions that do not require a responsive
pleading. Defendants are also without sufficient knowledge to admit or deny the allegations stated therein. To the extent an answer is required, defendants deny the allegations contained in this paragraph.
85. Defendants admit that DOC is a public entity. 86. Defendants deny the allegations contained in this paragraph. 87. Defendants deny the allegations contained in this paragraph. 88. Defendants deny the allegations contained in this paragraph. 89. Defendants deny the allegations contained in this paragraph. PRAYER FOR RELIEF Defendants deny that the plaintiff is entitled to the relief requested.
DEFENSES First Defense The complaint fails to state a claim upon which relief can be granted, including claims under the Rehabilitation Act of 1973 and the Americans with Disabilities Act. Second Defense The plaintiff failed to exhaust available administrative remedies. Third Defense The plaintiff lacks associational standing.

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Fourth Defense
No request for reasonable accommodations were made under the Americans with
Disabilities Act and Rehabilitation Act by inmates.
Fifth Defense
Plaintiff, nor the class of inmates it purports to represent, does not suffer from a
“disability” as is defined in the Americans with Disabilities Act and Rehabilitation Act.
Sixth Defense
Any actions taken by the named defendants, the Department of Correction and its
employees, agents, and employees and agents of its vendors, were the result of the
inmates’own actions.
Seventh Defense
The defendants reserve the right to add additional defenses.
For the Defendants,
NANCY ANKERS WHITE Special Assistant Attorney General
/s/ William D. Saltzman William D. Saltzman BBO No. 439749 Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 154 wdsaltzman@doc.state.ma.us
/s/ Charles W. Anderson Jr. Charles W. Anderson Jr. BBO No. 635016 Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 161 cwanderson@doc.state.ma.us

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/s/ Sheryl Grant Sheryl Grant BBO No. 647071 Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 140 sfgrant@doc.state.ma.us

CERTIFICATE OF SERVICE

I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on May 7, 2007

Dated: May 7, 2007

/s/ William D. Saltzman_____________ William D. Saltzman

 
 Case 1:07-cv-10463-MLW Document 167 Filed 01/21/11 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

____________________________________

)

DISABILITY LAW CENTER, INC.

)

)

Plaintiff,

)

)

v.

)

)

MASSACHUSETTS DEPARTMENT )

OF CORRECTION, et al.

)

)

Defendants.

)

____________________________________)

Civil Action No. 07-cv-10463-MLW

ORDER ON DISABILITY LAW CENTER, INC.’S RENEWED MOTION TO COMPEL PRODUCTION OF DOCUMENTS BY
MASSACHUSETTS CORRECTIONAL HEALTH PROGRAM

January 21, 2011

Boal, M.J.

INTRODUCTION

Plaintiff Disability Law Center, Inc. (“DLC”) has sued the Massachusetts Department of

Corrections (“DOC”) along with several DOC officials, challenging the placement of mentally ill

prisoners in segregation facilities run by DOC. DLC alleges that such placement constitutes

cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the

United States Constitution, and that the DOC’s failure to address the problem violates both the

Rehabilitation Act of 1973, 29 U.S.C. § 794, and the American with Disabilities Act, 42 U.S.C. §

12131, et seq. DLC, a not-for-profit Massachusetts corporation, has brought suit on behalf of all

Massachusetts prisoners with mental illnesses.

DLC served a subpoena on non-party University of Massachusetts Correctional Health

-1-

Case 1:07-cv-10463-MLW Document 167 Filed 01/21/11 Page 2 of 17
Program (“UMCHP”) seeking certain documents from UMCHP. From 2003 to June 30, 2007, UMCHP provided medical and mental health services to prisoners in DOC facilities.1
This matter is now before the Court on DLC’s motion to compel production of documents by UMCHP, which has asserted that the documents are protected by the psychotherapist-patient privilege.2 For the following reasons, DLC’s motion is ALLOWED in part and DENIED in part, as set forth below.
PROCEDURAL BACKGROUND DLC commenced this case on March 8, 2007. (Docket No. 1). On October 9, 2007, DLC caused a subpoena to be served on UMCHP seeking the production of certain documents regarding the care provided to certain prisoners by UMCHP. (See Declaration of Alison E. Hickey in Support of Plaintiff’s Motion to Compel Production of Documents from Third Party University of Massachusetts Correctional Health Program Pursuant to a Subpoena, Docket No. 63, at Exhibit A). UMCHP initially objected to the subpoena on the grounds that it was overly broad in scope and sought documents protected by the attorney-client and/or medical peer review privilege. (See id. at Exhibit B). DLC and UMCHP engaged in negotiations regarding UMCHP’s objections to the subpoena but were not able to resolve their disputes. (See id. at Exhibits C to F). On July 31, 2008, DLC filed a motion to compel production of documents by UMCHP.
1 In 2003, UMCHP succeeded to another program within the University of Massachusetts Medical School, whose contract with the DOC for the provision of medical and mental health services began in 1998.
2 DLC cannot obtain these documents from the DOC, as DOC has represented that they are not within DOC’s possession, custody or control.
-2-

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(Docket No. 61). UMCHP filed an opposition to the motion, an accompanying memorandum, and a motion requesting that the District Court stay discovery. (Docket Nos. 72-74). DLC objected to the production of the documents on the grounds that the documents sought by DLC were irrelevant and were protected from disclosure under HIPAA, the attorney-client privilege, and the psychotherapist-patient privilege. (Docket No. 73). At that time, UMCHP indicated that it would release records for which DLC provided a valid authorization. (Id. at p. 2).
On March 4, 2009, the District Court stayed the case while DLC and the DOC pursued settlement negotiations. On March 22, 2009, the District Court denied DLC’s motion to compel documents without prejudice. (Docket No. 88). The District Court also granted UMCHP’s request for a stay of discovery without prejudice to reconsideration if requested. (Id.).
The District Court lifted the stay of discovery between DLC and DOC on February 9, 2010, after settlement negotiations proved unsuccessful. On April 26, 2010, DLC filed a motion to lift the stay of discovery between it and UMCHP and to enter its renewed motion to compel production of documents from UMCHP. (Docket No. 123).
The August 2010 District Court Proceedings On August 11, 2010, the District Court held a hearing concerning DLC’s motion to lift the stay of discovery between it and UMCHP and to allow DLC’s renewed motion to compel UMCHP to produce documents. The District Court found that the documents sought by DLC were relevant to the case pursuant to Fed. R. Civ. P. 26(b)(1). (Docket No. 134). In addition, the District Court found that the revised protective order satisfied the requirements of HIPAA. (Id.) Accordingly, after the hearing, the sole remaining issue was whether the federal psychotherapist-patient privilege precludes the production of any or all of the documents sought
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by DLC from UMCHP. (Id.) By order dated August 12, 2010, the District Court lifted the stay of discovery between
DLC and UMCHP. (Id.). The District Court also ordered the parties to cooperate in attempting to obtain releases from inmates or their representatives, whose medical or mental health records are involved in the documents sought by DLC. (Id.). In addition, the District Court ordered UMCHP to file the following documents by August 27, 2010:
(1) Supplemental memoranda addressing the applicability of the psychotherapist-patient privilege to the documents at issue and whether the privilege has been waived with regard to any or all the documents;
(2) One or more affidavits addressing what, if anything, inmates at DOC facilities were told regarding the confidentiality of their communications to psychotherapists in the course of the diagnosis or treatment that they received while in DOC custody during the relevant period;
(3) A privilege log regarding the documents to which UMCHP asserts the federal psychotherapist-patient privilege applies; and
(4) Under seal redacted and unredacted copies of the documents sought by DLC for possible in camera review. (Id.).
UMCHP complied with the District Court’s August 12, 2010 order (Docket Nos. 139141), and, inter alia, filed under seal redacted and unredacted copies of the documents sought by DLC for in camera review. DLC responded to UMCHP’s submissions on September 3, 2010. (Docket No. 142). On September 10, 2010, UMCHP filed a reply to DLC’s memorandum. (Docket No. 143).
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The January 2011 Proceedings Before This Court On October 1, 2010, Chief Judge Mark L. Wolf referred the case to this Court for discovery only. (Docket No. 146). On January 5, 2011, after having reviewed the records in camera, this Court held a hearing on the instant motion. DOC reaffirmed that it takes no position with respect to the instant motion.3 At the hearing, the parties stated that DLC had provided releases for a number of inmates’ mental health records, which rendered the motion to compel moot as to some of the records sought by DLC. As of the date of the hearing, the mental health records of only four inmates remained at issue. At the hearing, DLC stated that it had provided UMCHP with a release from the brother and next of kin of one inmate. UMCHP rejected this release arguing that a release for the records of a deceased inmate is only valid if it is executed by a legally appointed administrator or executor of the estate. DLC had also provided UMCHP with a release from the executor for the estate of another inmate that expired prior to the production of documents. UMCHP argued that the release is therefore not valid. DLC maintained that the release had not expired at the time it was provided to UMCHP and therefore is valid. Accordingly, in order to facilitate the resolution of the remaining issues presented by the instant motion, after expressing its preliminary view that some of UMCHP’s redactions were not supported by the federal psychotherapist-patient privilege, this Court ordered UMCHP to file under seal redacted and unredacted copies of the mental health records of the four inmates at
3 In response to the District Court’s July 27, 2010 order, DOC stated that it took no position with respect to the subject motion to compel. (Docket No. 130).
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issue for further in camera review. (Docket No. 163). In addition, this Court ordered UMCHP to file, pursuant to Fed. R. Civ. P. 45(d)(2), a revised and more detailed privilege log regarding the records remaining at issue to which UMCHP asserts the federal psychotherapist-patient privilege applies. (Id.). Finally, the Court ordered DLC to file certain documents with respect to the release that had arguably expired. (Id.).
On January 12, 2011, DLC informed this Court that DLC had provided UMCHP with a new release for the inmate’s estate whose release had expired. UMCHP informed DLC that it would accept that release and would provide DLC with the requested records. Accordingly, only records related to three inmates remain at issue.
UMCHP has provided to the Court both redacted and unredacted copies of the records of inmates that UMCHP still contends are subject to the psychotherapist-patient privilege (the “Records”). Nonetheless, in response to this Court’s comments regarding its preliminary review regarding some of the redactions, UMCHP unredacted some portions of the documents. The only issue before the Court is whether the redacted portions of the Records are subject to the psychotherapist-patient privilege and, if so, whether the privilege has been impliedly or expressly waived. After having reviewed the unredacted documents in camera, for the following reasons, this Court finds that DLC has provided a valid waiver with respect to one of the remaining inmates’ records but that the pscyhotherapist-patient privilege applies to the remaining redacted information.
STATEMENT OF FACTS UMCHP was the sole provider of medical and mental health services to prisoners in DOC facilities from 1998 to 2007. By the instant motion, DLC seeks, among other things,
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suicide and suicide related morbidity and mortality reviews in UMCHP’s possession, and all notes or other documentation related thereto, for inmates in segregation or segregation-like units for the time period from September 15, 2005 until UMCHP ceased providing mental health services to DOC, in or about July 2007 (the “Morbidity and Mortality Files”). UMCHP and DOC have advised DLC that Morbidity and Mortality reviews were conducted for ten inmates, all of whom committed suicide. (Docket No. 142, p. 6).
The Morbidity and Mortality Files contain medical and mental health records of inmates. (5/10/10 Affidavit of Dyana Nickl, Docket No. 124-4 (“ 5/10/10 Nickl Aff.”) at ¶ 3). Those files include progress notes from medical providers, physician orders, mental health evaluation forms, mental health progress notes, laboratory test results, specialty consult records, medication records, medical history and screening forms filled out by the medical providers at UMCHP, sick call requests, as well as medical records from outside medical care providers and consultants. (Id.). UMCHP asserts that some of the documents included in the Morbidity and Mortality Files are protected by the psychotherapist-patient privilege.
UMCHP does not have a policy or procedure specific to the confidentiality of inmates’ communications with psychotherapists. (8/26/10 Affidavit of Dyana Nickl, Docket No. 141(“8/26/10 Nyckl Aff.”), at ¶ 4). It does, however, have privacy and confidentiality policies that apply to all healthcare treatment. (Id. at ¶ 5 and Exhibits A to C thereof).
UMCHP policy generally precludes the release of health information absent a release. Policy No. 62.01, entitled “Release of Health Record Information to Department of Correction and Other Individuals,” states that “[n]o health record information may be released to anyone, except DOC Health Services personnel without the written consent of the inmate.” (Exhibit A to
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8/26/10 Nickl Aff. at p. 1). A release must be executed by the inmate or his/her executor and be current (within 60 days). (Id.).
The policy contains certain limited exceptions to the general preclusion of release of health record information. For example, it states that “[t]he Department of Correction Superintendents or designee may request clinical information on a “need to know” basis as defined. . . . In all cases, any information provided under this provision shall be limited to the most pertinent details and shall not include access to the medical record, except by the Director of DOC Health Services and/or any Superintendent.” (Id. at p. 3). “Need to know” is defined as “the release of health record information by the most senior qualified health personnel on site (Health Services Administrator or Medical Director) to Superintendent or designee to preserve the health of the inmate concerned; to enhance the care of the inmate; to protect the health of others; to exercise the duty to warn others when their safety is threatened.”
Policy No. 62.01 also allows access to health information by attorneys of the Department of Correction and UMCHP “without the consent of the inmate for the purpose of defending the Department against suit or when the Department is seeking a court order for compliance with medical treatment procedures.” (Id. at p. 2).
Policy No. 61.00, entitled “Confidentiality of Health Records and Health Information” provides for the confidentiality and storage of health records, and the protection of the inmate’s confidentiality from disclosure of certain confidences entrusted to practitioners during a course of treatment. Only individuals who require access to health records for the purpose of providing mental, dental, or mental health services, audit and quality improvement activities will have access to the health care record. (8/26/10 Nickl Aff. at ¶ 8 and Exhibit B thereto).
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Finally, Policy No. 9.00, entitled “Privacy of Care,” provides that “[h]ealthcare procedures will be performed in privacy with consideration for the safety and security for the healthcare provider.” (Exhibit C to 8/26/10 Nickl Aff. at p. 1). It also provides that “[w]hen the presence of security staff is required for the staff safety, every effort will be made to provide auditory and visual privacy.” (Id.).
Inmates are informed of the existence of the UMCHP policies and procedures, and copies of all policies and procedures, including all of the policies noted above, were available in the library at each DOC institution prior to July 2007. (8/26/10 Nickl Aff. at ¶ 10). UMCHP has not stated what, if anything, an inmate was told by his or her psychotherapist with regard to the confidentiality of their communications. (Id. at ¶ 11). DLC acknowledged at the hearing that there is no evidence that the inmates in question were individually advised regarding UMCHP policies and procedures concerning inmates’ medical records.
ANALYSIS I. Standard of Review
Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Rule 26(b)(1) further provides that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
A Rule 45 subpoena must fall within the scope of proper discovery under Fed. R. Civ. P. 26(b)(1). Miller v. Allstate Fire & Cas. Ins. Co., No. 07-260, 2009 WL 700142, *2 (W.D. Pa. Mar. 17, 2009) (citation omitted). Thus, the production sought by DLC must be: (1) not privileged; (2) relevant to the claim or defense of any party; and (3) either admissible in itself or
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Case 1:07-cv-10463-MLW Document 167 Filed 01/21/11 Page 10 of 17
reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). Pursuant to the District Court’s August 12, 2010 Order, the documents sought by DLC are relevant and must be produced, unless they are privileged.
Rule 45 provides that a person subject to a subpoena may within a specified time period avoid or limit compliance in a number of ways: (1) by serving written objections pursuant to Rule 45(c)(2)(B); (2) by moving to quash or modify pursuant to Rule 45(c)(3); or (3) by moving for a protective order under Rule 26(c). Fed. R. Civ. P. 45(c). If the responding party chooses the first option, the party serving the subpoena may then move the issuing court for an order compelling production or inspection. Fed. R. Civ. P. 45(c)(2)(B)(i).
A person withholding subpoenaed information on the basis of privilege must “(i) expressly make the claim; and (ii) describe the nature of the withheld documents ... in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” Fed. R. Civ. P. 45(d)(2)(A). II. Choice of Law
Fed. R. Evid. 501 provides, in relevant part: Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason or experience. . . . Thus, because DLC has brought federal question claims, federal common law regarding privilege applies.4 See United States v. Whitney, No. 05-40005-FDS, 2006 WL 2927531, *2 (D.
4 In their pleadings, the parties rely on Massachusetts law of privilege. As noted by the District Court, this reliance is mistaken to the extent that the parties argue that this Court must
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Case 1:07-cv-10463-MLW Document 167 Filed 01/21/11 Page 11 of 17
Mass. Aug. 11, 2006) (“the existence of any privilege in a federal proceeding is clearly governed by federal, not state, law.”). III. The Psychotherapist-Patient Privilege
The federal psychotherapist-patient privilege was first recognized by the United States Supreme Court in Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996). “Like the spousal and attorneyclient privileges,” the Supreme Court held, “the psychotherapist-patient privilege is rooted in the imperative need for confidence and trust.” Id. at 10 (internal punctuation and citation omitted). Thus, the Supreme Court found, “[e]ffective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.” Id. Because “the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment[,]” the Supreme Court rejected a balancing test applied by various courts, and refused to make the application of the privilege “contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure[.]” Id. at 10, 17. Finally, the Supreme Court recognized that the privilege “serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.” Id. at 11. The Supreme Court did not attempt to flesh out the full contours of the privilege stating that “it is neither necessary nor feasible to delineate its full contours in a way that would govern all conceivable future questions in this area.” Id. at
follow the state law of privilege. While the Court may look to state law to fill in gaps in federal common law, state law cannot supply the rule of decision. See Speaker v. County of San Bernardino, 82 F. Supp. 2d 1105, 1109 (C.D. Cal. 2000).
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18 (internal punctuation and citation omitted). The burden is on the party asserting the privilege to establish that the privilege applies.
In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 73 (1st Cir. 1999). “Hence, a party asserting the psychotherapist-patient privilege must show that the allegedly privileged communications were made (1) confidentially (2) between a licensed psychotherapist and her patient (3) in the course of diagnosis or treatment.” Id. Once that showing has been made, the privilege is absolute. See Jaffee, 518 U.S. at 17. Thus, a Court may not permit opposing counsel “to see [covered] materials . . . regardless of its assessment of the interests of justice.” In re Sealed Case (Medical Records), 381 F.3d 1205, 1214 (D.D.C. 2004) (internal quotation marks omitted). Therefore, if a court determines that the privilege applies, a protective order permitting the disclosure of the covered materials to opposing counsel would not be appropriate. See id. IV. Implied Waiver
The Supreme Court has recognized that, as in the case of other testimonial privileges, the patient may waive the psychotherapist-patient privilege. Jaffee, 518 U.S. at 15 n. 14. DLC argues that the psychotherapist-patient privilege has been waived because, according to UMCHP policies, an inmate is advised that communications will be disclosed in certain situations, and thus are not confidential. (DLC Memo at 4-5).5 This Court disagrees.
“Waiver is the voluntary and intentional relinquishment of a known right.” United States v. Wimberly, 60 F.3d 281, 285 (7th Cir. 1995). A reading of UMCHP policies establishes that it agreed to keep any information revealed during treatment confidential except in very specific
5 Cites to “DLC Memo” refer to the Response of Disability Law Center to the University of Massachusetts Correctional Health Program’s Memorandum Regarding the PsychotherapistPatient Privilege and Other Submissions (Docket No. 142).
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circumstances. UMCHP policies inform the inmates that their records may be accessed in the event of litigation: “Attorneys for the Department of Correction and UMass Correctional Facility may be allowed access to the medical record without the consent of the inmate for the purposes of defending the Department against suit . . .” (Exhibit A to 8/26/10 Nickl Aff.). Inmates are informed of the existence of the policies, which are also available at each facility’s library. (See 8/26/10 Nickl Aff. at ¶ 10).
UMCHP’s policies regarding confidentiality have to be read as a whole. A fair reading of the policies is that the overriding intent was to keep inmates’ medical records, including mental health records, confidential. The policies themselves cannot be viewed as a waiver by the inmates of their rights to confidentiality. While the policies mention the possibility that inmates’ records may be accessed by attorneys for the DOC and UMCHP under certain circumstances, nothing in the policies advises the inmates that the records may be disseminated to others outside of DOC or UMCHP. Moreover, there is no evidence that any of the inmates at issue actually read the policies or signed any acknowledgment form. In sum, this Court concludes that UMCHP policies do not create an implied waiver of the psychotherapist-patient privilege so that the inmates’ mental health records become discoverable by DLC. V. Express Waiver Of The Privilege By Inmates’ Next of Kin
UMCHP acknowledges that an express waiver of each of the inmates’ privilege could be obtained from the inmate himself or herself, of if the inmate is deceased,6 from the executor of
6 UMCHP’s position with respect to the redacted documents assumes that the psychotherapist-patient privilege survives the death of the patient, and DLC has not disputed that contention. In Jaffee, the Supreme Court compared the psychotherapist-patient privilege to the attorney-client privilege. Jaffee, 518 U.S. at 10 (“Like the spousal and attorney-client privileges, the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and
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Case 1:07-cv-10463-MLW Document 167 Filed 01/21/11 Page 14 of 17
his estate. (See Docket 139, p. 6). DLC maintains that it is sufficient to obtain an express waiver from a “representative” of the inmate’s estate, such as next of kin. DLC has obtained a release from one inmate’s brother and next of kin. At the hearing, DLC represented that both of the inmate’s parents are deceased, and the inmate had no spouse or children. UMCHP does not challenge this assertion. DLC further represented that because there was no estate to administer, no executor or administrator was ever appointed. DLC argues that this release should be sufficient to waive the privilege on behalf of the inmate and release the records to DLC. UMCHP has refused to accept this waiver and will accept only a waiver from an administrator or executor. (UMCHP Memo at 6, n. 2).7
The parties have not provided, nor has this Court found, any federal caselaw directly speaking to this issue. Nevertheless, the Supreme Court prescribed several rules of privilege that were not enacted by Congress as part of the Federal Rules of Evidence. One of these was Rule 504, which included a psychotherapist-patient privilege. Courts have looked at unenacted Rule 504 as a resource for help in defining the contours of the privilege, although less so after the Supreme Court’s decision in Jaffee. Rothstein, Paul, et al., Federal Testimonial Privileges, § 3:9 (2d ed. 2009-2010). The fact that Congress did not enact this rule into law does not lessen its value as a resource to define the scope of the privilege. See United States v. Romo, 413 F.3d
trust.’”) (quotations omitted). Therefore, the holding in Swidler & Berlin v. United States suggests that the psychotherapist-patient privilege survives the death of the patient. 524 U.S. 399, 407-08 (1998) (holding that the attorney-client privilege is absolute and survives the death of the client).
7 Cites to “UMCHP Memo” refer to Non-Party, University of Massachusetts Correctional Health Program’s, Memorandum Regarding the Applicability of the Psychotherapist-Patient Privilege to the Materials Sought by Plaintiff in its Motion to Compel, Docket No. 139.
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1044, 1047-48 (9th Cir. 2005) (citations omitted) (“because the Supreme Court has recognized the psychotherapist-patient privilege and cited favorably to proposed Rule 504 as proposed, ‘the contents of the Proposed Rule have considerable force and should be consulted when the psychotherapist-patient privilege is invoked.’”). The rule was not rejected by Congress because of any decision that it was in error on the merits, but on the theory that rules of privilege should be left to the federal courts. See In re August 1993 Regular Grand Jury (Medical Corp. Subpoena II), 854 F. Supp. 1392, 1396 (S.D. Ind. 1993).
Proposed Rule 504 states that “[t]he privilege may be claimed by the patient, by his guardian or conservator, or by the personal representative of a deceased patient.” The rule does not define who qualifies as a personal representative. The use of the phrase personal representative would appear to refer to a person who manages the legal affairs of another, such as an executor or administrator. See BLACK’S LAW DICTIONARY at 1304 (7th ed. 1999) (defining personal representative as “[a] person who manages the legal affairs of another because of incapacity or death, such as the executor of an estate.”). The definition of the phrase “personal representative,” however, does not explicitly foreclose the possibility that someone other than a legally appointed executor or administrator may manage the legal affairs of a deceased individual in the absence of a legally appointed representative.
Some jurisdictions explicitly allow heirs or next of kin to waive medical privileges. See, e.g., Thomas v. State, 656 N.E.2d 819, 822 (Ind. Ct. App. 1995) (“[t]he privilege is held by the patient and only the patient, or his heirs or personal representatives after his death, may waive the privilege”); Sun Health Corp. v. Myers, 205 Ariz. 315, 319 (Ariz. App. Div. 2003) (“heirs or a decedent’s next of kind may waive the decedent’s [doctor-patient] privilege”).
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In the context of the attorney-client privilege,8 Wigmore has noted, “the power of an heir may also be conceded if we remember that the heir, first, is at least equally interested [as the executor] in preserving the ancestor’s reputation, and, second, has an equal [to the executor] moral claim to protect the deceased’s property rights from unwarranted diminution.” 8 Wigmore on Evidence § 2391 (1961). Accordingly, “it is usually agreed that the deceased’s . . . representative (and probably also the heir) may waive the privilege.” Id.
Here, recognizing waiver of the privilege by the inmate’s brother and next of kin would appear appropriate, particularly where there is no executor or administrator or other immediate family member available to represent the deceased inmate’s interests. Next of kin are able to represent the deceased’s interest in a manner equivalent to the executor. Accordingly, this Court finds that the inmate’s brother and next of kin may waive the psychotherapist-patient privilege on behalf of the deceased inmate and orders UMCHP to produce an unredacted copy of those records to DLC. VI. Analysis of Records
Here, DLC argues that the privilege log and other general descriptions of the allegedly privileged material provided by UMCHP are not sufficient to determine whether the Records are in fact protected by the psychotherapist-patient privilege. (See DLC Memo at 3-4). While the Court is mindful of DLC’s concerns regarding the privilege log, this Court reviewed the Records and determined that the redacted information is indeed covered by the psychotherapist-patient
8 As stated in footnote 7, supra, in Jaffee, the Supreme Court compared the psychotherapist-patient privilege to the attorney-client privilege. Jaffee, 518 U.S. at 10. In addition, in defining the contours of the psychotherapist-patient privilege, courts have relied on cases defining the attorney-client privilege. See, e.g., Hucko v. City of Oak Forest, 185 F.R.D. 526, 529 (N.D. Ill. 1999).
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privilege.9 Based on this Court’s initial review, the Court expressed concern that materials such as, inter alia, dates, signatures, the first sentence of progress notes stating that a meeting occurred, and administrative notes, were not privileged. UMCHP is no longer seeking to redact such material. This Court’s re-review of the documents compels the conclusion that the remaining redactions are appropriate. Indeed, the bulk of the redacted information contains progress notes, which represents core privileged material. See Jaffee, 518 U.S. at 18 (“ . . . the notes taken during their counseling sessions are protected from compelled disclosure . . .”). Accordingly, UMCHP will only be ordered to produce the documents for which there is no valid waiver, but in redacted form.
ORDER For the foregoing reasons, this Court ALLOWS DLC’s motion to compel in part and DENIES it in part, and orders that, within one week of the date of this decision: 1. UMCHP shall produce an unredacted copy of the Records of the inmate for which DLC has provided a next of kin release; and 2. UMCHP shall produce a copy of the remaining redacted Records.
/s/ Jennifer C. Boal JENNIFER C. BOAL UNITED STATES MAGISTRATE JUDGE
9 In addition, the Court ordered UMCHP to file a more detailed privilege log, which it did on January 7, 2011.
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 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

DISABILITY LAW CENTER, INC.,

)

)

Plaintiff,

)

)

)

v.

)

)

)

MASSACHUSETTS DEPARTMENT OF

)

CORRECTION, et. aI.,

)

)

Defendants

)

)

)

----------------------------------- )

CIVIL ACTION NO. 07-10463 (MLW)

SETTLEMENT AGREEMENT
Introduction
The Plaintiff Disability Law Center, Inc. filed the instant lawsuit, Disability Law Center, Inc. v. Massachusetts Department of Correction, et al., Civ. No. 07-10463 (D. Mass.), seeking declaratory and injunctive relief on behalf of its constituents, inmates with mental illness in the custody of the Massachusetts Department of Correction, alleging, inter alia, that their confinement in Segregation is in violation of the Eighth and Fourteenth Amendments of the United States Constitution, 29 U.S.C. § 794 (the Rehabilitation Act) and 42 U.S.C. § 12132 (the Americans with Disabilities Act).
The Defendants deny that they have violated any such constitutional or statutory rights. The Defendants also state that prior to and since the initiation of this litigation, the Department had commenced significant initiatives to enhance the delivery of mental health services, and the process has been ongoing throughout the course of the litigation. To date, the Department's initiatives include the following: Implementation of a definition of Serious Mental Illness (SMI); Implementation of Mental Health Classification; Exclusion of SMI inmates from long-term Segregation; Operation of two maximum security mental health treatment units: the Secure Treatment Program (STP) and the Behavior Management Unit (BMU); Provision of weekly outof-cell clinical contact to SMI inmates in short-term segregation units; Monthly review by the Central Office Segregation Review Committee of SMI inmates who are segregated more than

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thirty (30) days; Establishment of a maximum security Residential Treatment Unit; Operation of three medium security Residential Treatment Units (RTUs) for general population inmates; Tasking Old Colony Correctional Center (OCCC) to serve as a special prison for inmates with mental illness; Incorporation of clinical mental health input into the disciplinary system; Enhancement of the Inmate Management System (lMS) to identify Mental Health Classification, SMI status, and incidents of self-injurious behavior by type; and Implementation of the suicide prevention recommendations of the Department's consultant.
The parties have conducted extensive discovery.
Without conceding any infirmity in their claims or defenses, the parties have engaged III extensive and arms length settlement negotiations to resolve the claims raised by this action.
Plaintiff and Defendants have reached an agreement for settling this litigation. The parties believe that this agreement is fair, reasonable, and adequate to protect the interests of all parties. The parties further believe that this Settlement Agreement will benefit inmates with Serious Mental Illness who are confined in correctional facilities under Defendants' control.
The parties will file this Settlement Agreement with the Court, and ask that the Court approve it, which approval is a condition precedent to the Agreement's effectiveness.
I. Definitions
Department - The Massachusetts Department of Correction ("Department").
Disability Law Center - The Disability Law Center, Inc. ("DLC").
Exigent Circumstances - Circumstances, including institutional emergencies as set forth in the Department's regulations, or emergencies in Segregation or a Secure Treatment Unit, under which the doing of an act otherwise required by this Settlement Agreement would create an unacceptable risk to the safety of any person.
Exigent Circumstances shall not include the opinion of a clinician that notwithstanding an inmate's Serious Mental Illness, the inmate may remain in Segregation.
Whenever an act otherwise required by this Settlement Agreement is excused on account of Exigent Circumstances, the Department shall attempt to resolve the Exigent Circumstances as soon as possible, and the act shall be performed as soon as possible after the Exigent Circumstances cease to exist.
Mental Health Classification - The Department's system that identifies and codes the level of mental health services that an inmate requires based upon his !her mental health need.
Qualified Mental Health Professional - Treatment providers who are psychiatrists, psychologists, psychiatric social workers, psychiatric nurses, and others who by virtue of their
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education, credentials and experience are permitted by law to evaluate and care for the mental health needs of patients, and to perform each function otherwise required by this Settlement Agreement (e.g., diagnosis).
Secure Treatment Unit - The term Secure Treatment Unit ("STU") refers to any Department maximum security residential treatment program designed to provide an alternative to Segregation for inmates diagnosed with Serious Mental Illness who cannot be housed in general population due to safety andlor security concerns. The Department currently operates two STUs: the Secure Treatment Program ("STP") and the Behavioral Management Unit ("BMU"). The Department also operates Residential Treatment Units which are not deemed STUs because the Department operates them as general population units.
Segregation - The term Segregation refers to the confinement of an inmate in: (1) the Departmental Disciplinary Unit ("DDU"), (2) any Special Management Unit ("SMU"), or (3) any unit where the inmate is confined to his cell for approximately 23 hours per day. For purposes of this definition, Segregation shall not include any placement ordered by a medical or mental health provider, including but not limited to, the placement of an inmate in clinical seclusion or restraint at Bridgewater State Hospital, the placement of a civilly committed Treatment Center inmate in the Minimum Privilege Unit, the placement of a civilly committed Massachusetts Alcohol and Substance Abuse Center (MASAC) or a civilly committed MCIFramingham inmate in an observation cell, the placement of an inmate in a Health Services Unit, the placement of an inmate in a hospital or the placement of an inmate on a mental health watch.
Serious Mental Illness (SMI) - For purposes of assessing whether Segregation may be clinically contraindicated, or whether an inmate in Segregation should be placed in a Specialized Treatment Unit, the term "Serious Mental Illness" shall be defined as the following:
a. Inmates determined by the Department's mental health vendor to have a current diagnosis or a recent significant history of any of the following types of DSM-IV-TR Axis I diagnoses:
(1) Schizophrenia (all sub-types)
(2) Delusional Disorder
(3) Schizophreniform Disorder
(4) Schizoaffective Disorder
(5) Brief Psychotic Disorder
6) Substance-Induced Psychotic Disorder (excluding intoxication and withdrawal)
(7) Psychotic Disorder Not Otherwise Specified
(8) Major Depressive Disorders
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(9) Bipolar Disorder I and II
For purposes of this definition, "recent significant history" shall be defined as a diagnosis specified above in section (a)(1)-(9) upon discharge within the past year from an inpatient psychiatric hospital.
b. Inmates diagnosed by the Department's mental health vendor with other DSM-IV-TR Axis I disorders that are commonly characterized by breaks with reality, or perceptions of reality, that lead the individual to experience significant functional impairment involving acts of selfharm or other behaviors that have a seriously adverse effect on life or on mental or physical health.
c. Inmates diagnosed by the Department's medical or mental health vendor with a developmental disability, a dementia or other cognitive disorders that result in a significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health.
d. Inmates diagnosed by the Department's mental health vendor with a severe personality disorder that is manifested by episodes of psychosis or depression, and results in significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health.
Significant Functional Impairment
Factors for consideration when assessing significant functional impairment shall include the following:
1. The inmate has engaged in self harm which shall be defined as a deliberate act by the inmate that inflicts damage to, or threatens the integrity of one's own body. Such acts include but are not limited to the following behaviors: hanging, self-strangulation, asphyxiation, cutting, self-mutilation, ingestion of a foreign body, insertion of a foreign body, head banging, drug overdose, jumping and biting.
2. The inmate has demonstrated difficulty in his or her ability to engage in activities of daily living, including eating, grooming and personal hygiene, maintenance of housing area, participation in recreation, and ambulation, as a consequence of any DSM IV-TR Axis I or Axis II disorder.
3. The inmate has demonstrated a pervasive pattern of dysfunctional or disruptive social interactions including withdrawal, bizarre or disruptive behavior, etc. as a consequence of any DSM IV-TR Axis I or Axis II disorder.
II. Screening and Evaluation of Inmates in Segregation to Determine SMI
A. Screening Prior to Placement in Segregation
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Prior to placement in Segregation, all inmates shall be screened by a qualified health care professional (e.g., a physician, physician assistant, nurse, or nurse practitioner) to determine (1) whether the inmate has a Serious Mental Illness, and/or (2) whether there are any acute mental health contraindications to Segregation. Acute mental health contraindications to Segregation include that the inmate appears acutely psychotic, is actively suicidal or has made a recent serious suicidal attempt, or is otherwise in need of immediate placement on mental health watch. If there is an acute mental health contraindication to Segregation, the inmate will immediately be placed in an alternative setting (e.g., mental health watch, inpatient hospitalization, or other appropriate healthcare setting).
B. Segregation Rounds
1. A Qualified Mental Health Professional shall make mental health rounds in the DDU and each Special Management Unit two (2) times a week. The Qualified Mental Health Professional shall arrange for an out-of-cell meeting with any inmate for whom a confidential meeting is warranted in the clinician's professional judgment. Custody staff shall provide escorts to facilitate out-of-cell meetings with clinicians, except in Exigent Circumstances and except where the inmate refuses.
C. Evaluation of Inmates in Segregation,
1. Any inmate with an open mental health case who is placed in Segregation, must be assessed by a Qualified Mental Health Professional within seven (7) days of initial placement in Segregation, and not less than once every thirty (30) days thereafter, to determine if he has an SM!. If the inmate is currently designated as SMI, a clinical evaluation need not be performed.
2. Any inmate without an open mental health case who is placed in Segregation must be assessed by a Qualified Mental Health Professional within thirty (30) days of initial placement in Segregation, and not less than once every ninety (90) days thereafter, to determine if he has a Serious Mental Illness.
3. The assessments described in paragraphs (C)(l) and (2) above must include, absent Exigent Circumstances, a face-to-face interview with the inmate conducted in a private confidential setting. If an inmate refuses the face-to-face interview, the clinician shall document in the progress note all attempts made to engage the inmate in such a private interview.
4. When any inmate in Segregation is determined to have a Serious Mental Illness, he shall be removed from Segregation, referred to a Secure Treatment Unit Review Committee, referred to a Residential Treatment Unit, or provided with mental health services in accordance with Section III below.
5. If the clinical director of the Department's mental health provider determines that continued Segregation will pose an imminent risk of substantial deterioration to an inmate's
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mental health, the inmate shall be removed from Segregation, referred to the Secure Treatment Unit Review Committee, referred to a Residential Treatment Unit, or provided with mental health services in accordance with Section III below.
D. Evaluation of Inmates Prior to DDU Placement
Prior to the placement of any inmate in the DDU, he shall be evaluated by a Qualified Mental Health Professional to determine whether he has an SM!. If the inmate is currently designated as SMI, a clinical evaluation need not be performed. Upon a determination that the inmate has an SMI, the clinician shall prepare a STU referral form and submit it to the Secure Treatment Unit Review Committee so that the inmate can be considered for placement in a STU.
III. Housing and Review of Inmates with Serious Mental Illness
A. Departmental Disciplinary Unit Housing
Inmates with SMI shall not be housed in the DDU except: (1) In Exigent Circumstances; or (2) In accordance with Section III(C). However, the parties understand that there may be times when the Department lacks an appropriate alternative placement for all SMI inmates with DDU sanctions. In that event, if the inmate has been approved for STU placement pursuant to Section III(D)(3), and after approval by the Deputy Commissioner of Classification, Programs, and Reentry and appropriate clinical staff, the Department may confine an SMI inmate in the DDU pending the availability of a Special Treatment Unit ("STU") bed. Such inmates shall be considered to be "pre-program inmates." The Department shall address the placement of such pre-program inmates on a case by case basis, taking into account the length of time that each such inmate has been awaiting STU placement and his clinical needs.
At a minimum, pre-program inmates in the DDU shall be offered additional mental health and other services, consisting of the following:
1. Less Than Thirty (30) Days
a. Two (2) out-of-cell sessions of structured individual or group activity per week shall be offered. These sessions shall be part of a treatment plan and shall include at least one session with a mental health clinician. The length of the out-of-cell clinical sessions shall be determined by the clinician on a case-by-case basis.
b. In addition to the five (5) hours of out-of-cell leisure activity already offered to DDU inmates, two (2) additional hours of out-of-cellieisure activity per week shall be offered. These extra hours may be provided either by offering additional out-of-cell sessions or by extending the period of existing out-of-cell sessions.
c. Upon entering the DDU from a Special Management Unit, pre-program inmates shall be offered the level of visitation, radio, and telephone privileges that had been provided in
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Segregation prior to DDU placement. Pre-Program inmates shall also be eligible to earn all privileges available to DDU prisoners, contingent upon compliance with the Department's, institutional, and DDU rules.
2. Over Thirty (30) Days
After thirty (30) days in the DDU, the amount of weekly out-of-cell services offered to a preprogram inmate with a mental health classification of MH-4 shall be increased to four (4) sessions of structured out-of-cell individual or group activity and, in addition to the five (5) hours of out-of-cellleisure activity already offered to DDU inmates, four (4) additional hours of outof-cell leisure activity. A Qualified Mental Health Professional will review the mental health classification of each pre-program inmate in the DDU every 30 days, and more frequently if dictated by the inmate's mental health needs to ensure that the inmate is appropriately classified. For purposes of this section, placement ofthe inmate on mental health watch shall not be deemed to interrupt the duration of time in the DDU.
3. DDU Transfer Policy
To maximize the effective utilization ofthe STU beds, within one year from the effective date of this agreement the Department will develop and implement a policy providing that, notwithstanding any outstanding DDU sanction, an STU inmate may be transferred to general population, including a residential treatment unit, if doing so would not be clinically inappropriate and would not pose a substantial threat to the safety of any person or the security of the institution.
B. Other Segregation Housing
Inmates with SMI shall not be housed III any other Segregation Unit as defined by this Settlement Agreement for more than thirty (30) days, except in Exigent Circumstances; provided however, that the parties understand that there may be times when the Department lacks an appropriate placement for all SMI inmates in Segregation. In that event, the Department will use all reasonable efforts to minimize the number of SMI inmates in Segregation and to remove them from Segregation as soon as possible.
At a minimum, SMI inmates held in Segregation shall be offered the following mental health and other services:
1. Less than Thirty (30) Days
a. If the SMI inmate has a Mental Health Classification of MH-l, MH-2 or MH-3, one (1) session of structured out-of-cell individual or group mental health per week, commencing in the first week of segregation, and which shall be part of a treatment plan; the opportunity to speak to a mental health clinician at least five (5) days per week, and in-cell programming. A Qualified Mental Health Professional will review the mental health classification of each SMI inmate in
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Segregation every thirty (30) days, and more frequently if dictated by the inmate's mental health needs to ensure that the inmate is appropriately classified.
b. An SMI inmate with a Mental Health Classification of MH-4 shall be offered two (2) sessions of structured out-of-cell individual or group activity per week. These sessions shall be part of a treatment plan and shall include at least one session with a mental health clinician. The length of the out-of-cell clinical sessions shall be determined by the clinician on a case-by-case basis.
c. In addition to the five (5) hours of out-of-cell leisure activity already offered to inmates in segregation, an SMI inmate with a Mental Health Classification ofMH-4 shall be offered two (2) additional hours of out-of-cell leisure activity per week. These extra hours may be provided either by offering additional out-of-cell sessions or by extending the period of existing out-ofcell session.
2. Over Thirty (30) Days
After thirty (30) days in Segregation, the amount of weekly out-of-cell services offered to an MH-4 SMI inmate shall be increased to four (4) sessions of structured out-of-cell individual or group activity per week and, in addition to the five (5) hours out-of-cellieisure activity already offered to inmates in segregation, four (4) additional hours of out-of-cellieisure activity. For purposes of this section, placement of the inmate on mental health watch shall not be deemed to interrupt the duration of time in Segregation.
c. Secure Treatment Unit Program Termination
Inmates with SMI shall not be returned to Segregation from an STU prior to completing the program, except in Exigent Circumstances or for program termination as follows:
1. Pursuant to the procedures established for review of Exigent Circumstances, the Department shall periodically reassess inmates who have been terminated from a STU and returned to Segregation. The inmate shall be referred to the same or a different STU if the inmate's behavior and motivation demonstrably improve. The inmate shall have a treatment plan designed to motivate him or her to participate in clinically-indicated therapeutic programming in an appropriate setting.
2. Inmates may be considered for termination from an STU prior to completing the program if the inmate engages in assaultive behavior or presents severe behavioral problem without demonstration of any effort to change and it is the consensus of the treatment team that the behavior has not improved and shows no indication of future change. Termination will not be considered without evidence and documentation of consistent refusal to engage in programs or chronic disruptive behavior that compromises the integrity of the program. The treatment team will meet to determine if further treatment interventions can be expected to produce no or
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minimum behavior changes. The treatment team will also consider whether transfer to a different STU would be appropriate. If termination is decided, the treatment team will develop a discharge plan consistent with the inmate's needs. Final approval of termination shall be made by the STU Committee.
D. Segregation Review
1. Institutional Segregation Committee
At each facility at which inmates with SMI are held in Segregation, an Institutional Segregation Committee will meet at least weekly for the purpose of reviewing the status of such inmates to determine the reason(s) for Segregation and whether alternatives exist. Such review may include a review of pending investigation status, classification status, mental health developments, and disciplinary status. The membership of the Institutional Segregation Committee or such other designated committee shall include at least one Qualified Mental Health Professional.
2. Central Office Segregation Oversight Committee
Membership of the Central Office Segregation Oversight Committee shall include the Deputy Commissioner, Prison Division; the Deputy Commissioner, Classification, Program and Reentry Division; Assistant Deputy Commissioners for the Northern and Southern Sectors, the Director of the Central Inmate Disciplinary Unit; a mental health professional from the Health Service Division; and a mental health professional from the Department's mental health vendor, or if any member is unable to attend a meeting, his or her designee.
The role of the Central Office Segregation Oversight Committee shall include:
a. Developing strategies to reduce time spent in Segregation by inmates with SMI, including reducing time on awaiting action or identifying alternatives to Segregation for such inmates; and expansion of privileges for SMI inmates remaining in Segregation;
b. Conducting a monthly review of the circumstances of inmates with SMI, including preprograms inmates, who has been in Segregation for a period exceeding thirty (30) days as of the date of the monthly review. The review shall include consideration of facilitating the inmates discharge from Segregation, assessment of the inmate's mental health classification level, and whether additional out-of-cell time is clinically indicated. For purposes of this review, placement of the inmate on mental health watch shall not be deemed to interrupt the duration of time in Segregation.
The Central Office Segregation Oversight Committee shall maintain minutes that document reviews and actions taken, with the reasons for the Committee's decision and the potential alternatives for Segregation considered.
3. Secure Treatment Review Committee
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The Secure Treatment Review Committee shall review STU referrals regarding inmates with SMI in Segregation to determine whether the inmate should be placed in a STU. If STU placement is appropriate, the Committee shall recommend such placement to the Assistant Deputy Commissioner, Clinical Services and the Assistant Deputy Commissioners, Northern and Southern sections, who shall determine in which STU the inmate shall be placed. Any determination of Exigent Circumstance shall be made by the Deputy Commissioner for Prisons.
The members of the Committee shall include the Department's Mental Health and Substance Abuse Coordinator, the Clinical Director of the Department's mental health provider, and the Coordinators of any existing STUs, such as the STP and BMU, or if any member is unable to attend a meeting, his or her designee.
IV. Specialized Treatment Units and Other Methods to Reduce Placement of SMI Inmates in Segregation
A. Number of Secure Treatment Units and Beds
1. The Department currently operates a (19) nineteen bed Secure Treatment Program (STP) at the Souza Baranowski Correctional Center and a ten bed Behavioral Management Unit (BMU) at MCI Cedar Junction.
2. The Department agrees to maintain the current number of STU beds for the period set forth in Section X(B)(2) unless it determines that fewer beds are adequate to ensure that no inmate with SMI is housed in Segregation in violation of the time limitations set forth in this Settlement Agreement.
3. Subject to Section III, the Department retains discretion to decide on appropriate methods to most effectively ensure that inmates with SMI are not confined to the DDU, or held in other Segregation units for longer than thirty (30) days. Specifically, the Department, in its discretion, may opt to achieve this outcome by reducing the amount of time inmates are held on awaiting action status; reducing the length of DDU sentences; transferring clinically and behaviorally stable inmates from STUs to RTUs or general population; increasing clinical mental health input into the disciplinary and classification processes; developing more effective treatment modalities in general population through mental health classification or other strategies; creating short-term step-down high security treatment units; developing additional STUs; transferring clinically stable inmates fl.-om STUs to RTUs or population; or adopting any other method which will achieve the above-stated outcome.
B. STU Treatment and Programming
1. Programs
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a. Each STU shall provide a variety of treatment programs and modalities to optimize the overall level of functioning of inmates with SMI within the correctional environment, and to prepare them for successful reentry into general population or the community.
b. Behavioral programming in the STUs shall include incentives to encourage positive behavior. These incentives may include, where appropriate, the opportunity to earn additional privileges and reduce disciplinary sanctions, including the opportunity to reduce sentences to the DDU. The Department may make earned good time available in the STUs within statutory limits to inmates who are not serving DDU or disciplinary detention.
2. Out-of-Cell Time
Inmates in an STU shall be scheduled for fifteen (15) hours of structured out-of-cell activity per week, with no fewer than ten (10) hours to be offered, and ten (10) hours per week of unstructured out-of-cell activity to be offered, including exercise but excluding showers, absent Exigent Circumstances.
For inmates assigned to a program phase that allows contact with other inmates, out-of-cell activities shall include opportunities for socialization including congregate exercise and dining, as determined by the treatment team.
3. Treatment Plans
Every inmate with SMI in an STU or Segregation shall have an individual treatment plan, developed by a clinician with participation from the inmate and from others, as appropriate (e.g., medical staff, security staff).
Treatment plans shall ordinarily be reviewed every ninety (90) days for the first year and then every six (6) months, but more frequently as needed. For example, if an inmate with SMI is returned to Segregation from an STU for programmatic or security reasons, the treatment plan shall indicate goals to effect the inmate's return to a STU or general population, as appropriate.
4. Staffing
Staffing of the STUs shall be adequate and appropriate to achieve the purposes of the unit and shall include:
Designated administrator and supervising clinician
Designated clinical staff;
Sufficient clinical and rehabilitative staff to provide required programming;
Sufficient correctional personnel to escort inmates to and from treatment activities;
Sufficient correctional personnel who are trained to work with inmates who have SM!.
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V. Mental Health Watch
A mental health watch shall be no longer in duration than necessary to deal with the mental health crisis that caused the inmate to be placed under observation. The Department's goal is to safely discharge inmates from mental health watch to their housing units within ninety-six (96) hours; however, any decision to discharge the inmate from mental health watch is a clinical judgment.
In all cases in which an inmate is maintained on mental health watch for more than ninety-six (96) hours the clinical director or designee of the Department's mental health provider shall be consulted until the inmate is discharged from mental health watch.
An inmate who is discharged from mental health watch to Segregation shall be assessed by a Qualified Mental Health Professional upon the third and seventh day following discharge, or upon such greater frequency or longer duration as may be determined by a Qualified Mental Health Professional.
VI. Role of Mental Health Staff in the Disciplinary Process; Related Discipline Issues
A. Self-Injurious Behavior and Related Behavior
Disciplinary reports solely for self-injurious behavior are prohibited. Disciplinary reports for behavior directly and wholly related to self-injurious behavior, such as destruction of state property, are also prohibited. Likewise, disciplinary reports for reporting to the Department or contract staff feelings or intentions of self-injury or suicide are prohibited.
B. Notification to Mental Health -SMI Inmates
Mental Health staff will be notified prior to service of a disciplinary report on any inmate with SMI who is charged with a Category 1 or Category 2 offense, as defined by the Department of Correction Inmate Discipline regulation, 103 CMR 430.00, et seq.
C. Superintendent's Review of Disciplinary Reports
During regularly scheduled reviews of recently issued disciplinary reports, the Superintendent or designee shall receive consultation from a facility mental health staff member regarding mental health issues that may be implicated in the events described by the disciplinary report, and whether there are appropriate alternatives for addressing the matter by means other than the disciplinary process. Upon determination that the case should be managed by means other than the disciplinary process, the Superintendent may order that the disciplinary report be dismissed in whole or in part.
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D. Mental Health Issues at the Disciplinary Hearing
1. Consultation on Disposition
Following the entry of a guilty finding on a Category 1 or Category 2 disciplinary offense for an inmate with a Mental Health Classification of MH-4, the hearing officer, if not recommending a DDU sanction, shall consult with mental health staff. Mental health staff will render an oral opinion, if pertinent, as to whether there are mental health considerations that may bear on the issues of mitigation and determination of an appropriate sanction. This may include an opinion on the effect of particular sanctions or combination of sanctions on the inmate's mental health (e.g., loss of visits, canteen, television, etc.). The hearing officer will indicate by "check off' on the disciplinary hearing form that he or she has received an opinion from mental health staff and document any change in the disposition of the case entered pursuant to that opinion.
2. Guilty Plea
In the event that an inmate with a Mental Health Classification ofMH-4 charged with a Category 1 or 2 offense pleads guilty to disciplinary charges, prior to the imposition of disciplinary detention, other than a sanction of "time served," the hearing officer or disciplinary officer will consult with mental health staff with respect to dispositional recommendations and document any such change in disposition as provided in Section VI(D)(l).
E. Thirty Day Limit on Disciplinary Detention
The Department may impose a disciplinary detention sanction on an inmate with SMI of up to thirty (30) days unless there are acute clinical contraindications to such detention. However, no inmate shall be placed continuously in disciplinary detention for more than fifteen (15) days. Inmates with SMI placed on disciplinary detention must have access to all mental health services that are generally available (i.e., mental health rounds, opportunity to request mental health contact as needed, opportunity to see the inmate's primary care clinician when regularly scheduled if this falls within the time period that the inmate is serving disciplinary detention).
VII. Training
A. Pre-Service Mental Illness and Suicide Prevention Training
All new correctional, medical and mental health staff shall receive eight (8) hours of initial suicide prevention training. At a minimum, training should include avoiding negative attitudes to suicide prevention, prison suicide research, why correctional environments are conducive to suicidal behavior, potential predisposing factors to suicide, high-risk suicide periods, warning signs and symptoms, identifying suicidal inmates, and components of the Department's suicide prevention policy.
B. In-Service Mental Illness and Suicide Prevention Training
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1. Annual Training for Correction Personnel
(a) Subject to collective bargaining agreements and bidding process, correction officers and correctional program officers shall receive annual in-service training, of at least two hours per year, on mental health issues.
(b) Such annual training for correction officers and correctional program officers shall include the identification and custodial care of inmates with mental illness and may include (i) interpreting and responding to symptomatic behaviors, and communication skills for interacting with inmates with mental illness with emphasis on SMI; (ii) recognizing and responding to indications of suicidal thoughts; (iii) conducting a proper suicide prevention observation; (iv) responding to mental health crises, including suicide intervention and cell extractions; (v) recognizing common side-effects of psychotropic medications; (vi) professional and humane treatment of inmates with mental illness; (vii) trauma informed care; (viii) de-escalation techniques; and (ix) alternatives to discipline and use of force when working with inmates with mental illness.
2. Secure Treatment Units
Subject to collective bargaining agreements and bidding process, there shall be initial pre-service and annual in-service training of all staff in the STUs regarding mental health and mental illness, medications, co-existing disorders, and programming needs. Training shall be as follows:
a. Upon the opening of any new STU, all security and treatment staff regularly assigned to the unit will receive forty (40) hours of training.
b. New security and treatment staff assigned to a STU after it is open and operational will receive eight (8) hours of orientation training at the time of assignment. The Department will endeavor to provide each new staff member with an additional thirty-two (32) hours of structured on-the-job training during the first seventy-five (75) days of assignment.
VIII. DLC's Designated Expert, Reports, Dispute Resolution and Enforcement
A. Designated Expert
1. DLC will retain Kathryn A. Burns, M.D. to serve as its designated expert to assess the Department's compliance with the terms of this Settlement Agreement. If Dr. Burns becomes unavailable, DLC will select a successor designated expert of its choice, after consultation with the Department. Within a reasonable time after its retention of a designated expert, DLC shall provide the Department with written assurance that the designated expert will avoid any conflict of interest in her activities in Massachusetts during the period set forth in Section X(B).
2. DLC shall pay all fees and costs incurred by the designated expert and any consultants retained by her.
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3. The designated expert shall have access to all Department facilities that have a Segregation unit, with reasonable notice, to assess compliance with this Settlement Agreement. All site visits shall take place on consecutive days. There shall be no more than three site visits in each year that the Settlement Agreement is in effect. These visits may take up to three days each, and the designated expert may visit as many facilities as is practicable on each visit.
4. The designated expert shall have access to meet with and interview personnel whose duties pertain to the provision of mental health services and/or who work with inmates.
5. The designated expert shall have a reasonable opportunity to conduct confidential interviews of inmates to assess whether designations of SMI are being made in conformity with this Settlement Agreement.
6. The designated expert shall conduct an in person or telephonic "exit interview" with one or more Department representatives, designated by the Department, at a time mutually convenient to the designated expert and the Department before the conclusion of each monitoring visit. Unless otherwise stated by the designated expert, any opinions or observations shared with Department representatives during such exit interview shall be deemed to be preliminary and subject to revision.
7. The Department may retain Dr. Jeffrey Metzner or another mental health expert at its own expense to serve as the Department's designated expert.
B. Records and Reports
1. Three times per year during the course of this Settlement Agreement, at intervals to be agreed upon by the parties, the Department will provide DLC with data and documents collected by the Department and its mental health vendor to track compliance with the Settlement Agreement. This data will cover each Department of Correction facility that operates one or more STU or Segregation unit, but shall not include data pertaining to Bridgewater State Hospital patients, civil commitments at the Massachusetts Treatment Center, civil commitments at the Massachusetts Alcohol and Substance Abuse Center (MASAC), and civil commitments at MCI-Framingham. Specifically, the data and documents to be provided are set forth in Appendix A attached to this Settlement Agreement.
2. DLC and its designated expert may also request additional, relevant Department documents to track compliance with the Settlement Agreement, except documents protected by attorney-client or work product privileges, subject to the Court's August 12, 2010 Protective Order (Docket No. 133) and the September 13, 2011 Amended Protective Order (Docket No. 239), or any subsequent protective order entered by the Court. If these documents are requested in conjunction with a site visit, the Department will provide these documents to the extent feasible within ten (10) days prior to the visit.
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3. During the site visits, DLC's designated expert shall have reasonable access to current inmate mental health records. If DLC requests copies of any inmate's mental health or other records, the Department shall provide copies within thirty (30) business days of the request, and DLC shall pay the Department twenty cents ($.20) per page within thirty (30) days of receipt. Within thirty (30) days of the effective date of this Settlement Agreement the parties shall agree to a procedure to ensure access to and the confidentiality of inmate records.
C. Designated Expert's Reports
The designated expert may prepare written reports on the Department's efforts to meet the terms of this Settlement Agreement, and may also include additional advice, suggestions or proposals in the nature of quality assurance or quality improvement as the designated expert deems appropriate. The designated expert shall make her written report, if any, available to the Department within thirty (30) days from the completion of her visit and the delivery by the Department of any documents requested by the designated expert, unless the time for submission is extended by agreement of the parties. Although the Department will give full consideration to advice, suggestions and proposals offered by a designated expert, all decisions concerning the provision of mental health services by the Department's mental health provider will be made by the Department in accordance with the terms of this Settlement Agreement and statutory and other legal responsibilities. If the designated expert reports that the Department had not met the terms of any provision or provisions of this Settlement Agreement, she shall make recommendations as to actions she believes to be necessary to meet the terms of the provision or provisions.
D. Dispute Resolution and Enforcement
1. If DLC believes the Department is not in substantial compliance, i.e., is in substantial non-compliance, with any provision of this Settlement Agreement, DLC shall provide the Department, in writing, specific reasons why it believes that the Department is not in substantial compliance with such provision or provisions, referencing the specific provision or provisions. DLC may not allege that the Department is not in Substantial Compliance based on minor or isolated delays in compliance. DLC may also not allege that the Department is not in substantial compliance without evidence of a pattern of substantial non-compliance with regard to that provision or provisions. To the extent DLC relies on observations or opinions of its designated expert to support an allegation that the Department is not in substantial compliance, DLC shall make reference to the written reports of the designated expert or to portions thereof which support DLC's belief. To the extent DLC relies upon documents provided by the Department to support an allegation that the Department is not in substantial compliance, DLC shall make reference to the specific performance measures which support DLC's belief.
The Department shall have the opportunity to consult its designated expert with respect to DLC's allegations that the Department is not in substantial compliance with such provision or
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provisions. The Department shall provide DLC with a written response to the notification within thirty (30) days of its receipt. The Department's response shall contain a description of the steps it took to investigate the issues addressed in the DLC's notice, the results of the investigation, and, where the Department proposes corrective action, a specific plan for addressing the described issues. If no corrective action is proposed by reason of funding constraints (including the unavailability of appropriated funds), legal considerations or for other reasons, the Department's response shall specifically state those reasons and any statutes, regulations, expert opinion or technical bases upon which it is relying in reaching such conclusion.
DLC agrees to advise the Department of its acceptance or rejection of the Department's response within seven (7) business days of its receipt. Either the Department or DLC, in any of the written submissions pursuant to this paragraph, may request a meeting to discuss and attempt to resolve any matter addressed in the written submissions. The Department and DLC shall meet within fourteen (14) business days of the receipt of the request, unless a later meeting is agreed by both sides.
If the Department and DLC are not successful in their efforts to resolve the matter, they may jointly or individually seek relief from the Court to effect substantial compliance with the Settlement Agreement, but not through a petition for contempt.
2. The Court's jurisdiction shall terminate at the end of the three (3) year settlement period with respect to any provision or provisions of this Settlement Agreement for which there is no outstanding determination that the Department is not in substantial compliance, i.e., is in substantial non-compliance. If the Court determines that the Department is not in substantial compliance, i.e., in substantial non-compliance, with a provision or provisions of this Settlement Agreement at any time during the three (3) year period of the Settlement Agreement, the Court's jurisdiction with respect to such provision or provisions relating thereto shall continue for the remainder of the three (3) year period or for a period to be ordered by the Court of not more than two (2) years from the date of the Court's finding that the Department is not in substantial compliance.
3. If the Court finds that the Department is not in substantial compliance, i.e., is in substantial non-compliance, with a provision or provisions of this Settlement Agreement, it may enter an order consistent with equitable principles, but not an order of contempt, that is designed to achieve compliance.
4. If DLC contends that the Department has not complied with an order entered under the preceding paragraph, it may, after reasonable notice to the Department, move for further relief from the Court to obtain compliance with the Court's prior order. In ruling on such a motion, the Court may apply equitable principles and may use any appropriate equitable or remedial power then available to it.
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IX. Implementation Timeline
A. Upon the effective date of this Settlement Agreement, the Department will not place an inmate with Serious Mental Illness in the DDU, except in accordance with Section III of this Settlement Agreement.
B. Within six (6) months from the effective date of this Settlement Agreement, the Department will have sufficient STU beds, or will have made other modifications to its policies and practices, to ensure that no inmate with SMI is placed in any other Segregation Unit for more than thirty (30) days, except in accordance with Section III of this Settlement Agreement.
C. The Department shall maintain written policies that are consistent with the terms of this Settlement Agreement.
X. Form of Agreement
A. Scope
1. The parties hereby memorialize the terms of their agreement III this Settlement Agreement.
2. This Settlement Agreement settles any and all claims against the defendants and shall be binding on the parties, their successors and assigns.
3. This Settlement Agreement constitutes the entire agreement of the parties and, except for any Protective Order entered by the Court, supersedes all prior agreements, representations, negotiations and undertakings in this litigation not set forth or incorporated herein.
B. Court Approval, Jurisdiction and Enforcement
1. The Settlement Agreement is not effective absent approval by the Court. All Parties and their counsel will use their best efforts to obtain Court approval of this Agreement.
2. The term of this Settlement Agreement and the jurisdiction of the Court shall commence upon the date of approval by the Court and shall extend for three (3) years from said date of approval, subject to paragraph VIII(C)(2) of this Settlement Agreement.
3. The Court shall be the sole forum for the enforcement ofthis Settlement Agreement. Any order to achieve compliance with the provisions of this Settlement Agreement shall be subject to the applicable provisions ofthe Prison Litigation Reform Act, 18 U.S.C. section 3626.
4. Subject to the provisions of Sections XCI) and (2) of this Settlement Agreement, III recognition of the time necessary for implementation of this Settlement Agreement, as provided in Section IX, the parties agree not to seek termination or otherwise challenge this Settlement Agreement or any order approving this Settlement Agreement during the period of time that the
18

Court retains jurisdiction pursuant to Section X(B)(2). Nothing in this paragraph shall limit the parties' rights to challenge or appeal any finding as to whether the Department is not in substantial compliance, i.e., in substantial non-compliance, or consequent order entered by the Court pursuant to Section VIII(C)(2) of this Settlement Agreement.
5. This Settlement Agreement may be enforced only by the parties hereto. Nothing contained in this Settlement Agreement is intended or shall be construed to evidence an intention to confer any rights or remedies upon any person other than the parties hereto.
6. This Settlement Agreement may not be relied on as precedent in any future claim. Nothing in this paragraph limits the parties' rights to bring claims arising out of paragraph VIII(D) ofthis Settlement Agreement.
7. Nothing in this Settlement Agreement shall be interpreted to diminish or otherwise restrict any authority granted to DLC as the protection and advocacy system for persons with disabilities in Massachusetts.
C. Amendments
1. By mutual agreement, the parties may change the terms of this Settlement Agreement, including, but not limited to, the timetables for taking specific actions, provided that such mutual agreement is memorialized in writing, signed by the parties and approved by the Court.
2. During the term provided in Section X(B) of this Settlement Agreement, the Department shall not make any changes to any policy provision implementing the provisions of this Settlement Agreement without providing DLC a written draft of such policy or policies, for its review and comment. DLC shall have fifteen (15) days to comment. Without prior agreement of the parties, no Department policy provision may be amended to conflict with the terms of this Settlement Agreement while the Settlement Agreement remains in effect. The Department shall not approve any changes to a policy maintained by its mental health provider that conflicts with the terms of this Settlement Agreement. During the term of this Settlement Agreement, the definition of Serious Mental Illness as defined herein shall not be amended without agreement of the parties.
XI. Funding
A. The parties acknowledge that implementation of this Settlement Agreement is subject to the availability and receipt of appropriated funds.
B. The parties further acknowledge that the lack of funding does not preclude the Court from entering any order to achieve compliance with this Settlement Agreement that comports with the applicable provisions of the Prison Litigation Reform Act, 18 U.S.c. section 3626 and with other applicable law, provided that the Department reserves the right to assert that the lack of funding should be taken into account in any remedial order.
19

C. The Department agrees to make all possible good faith efforts to seek all necessary funding to implement fully the terms of this Settlement Agreement. D. In the event that the parties are unable to agree as to whether there is sufficient funding to implement fully this Settlement Agreement, the parties shall meet and confer, and if necessary, consult the Court. In the event that the parties continue to be unable to agree, either the Department or DLC may invoke the dispute resolution procedures in Section VIII(C) of this Settlement Agreement to seek the assistance of the Court. XII. Attorneys' Fees The Department and DLC do not agree as to the prevailing party in this case. Nevertheless, for the purpose of compromise and settlement, the Department, through the Commonwealth of Massachusetts, agrees to pay DLC a total of one million, two hundred and fifty thousand dollars ($1,250,000) to settle DLC's claim for attorneys' fees and costs. DLC agrees not to seek further fees and costs with respect to work incurred prior to the date of approval of this Settlement Agreement. However, DLC does not waive its right to seek reasonable attorneys' fees and costs for successful enforcement of this Settlement Agreement, and the Department, on behalf of the defendants, reserves its right to oppose any such petition for fees and costs, including all appellate rights.
20

Plaintiff:

Defendants:

Alan Kerzin Executive Director DISABILITY LAW CENTER, 11 Beacon Street, Suite 925 Boston, Massachusetts 02108 (617) 723-8455
The undersigned as counsel for Plaintiff
~,
BBO #544381 DISABILITY LAW CENTER, INC. 11 Beacon Street, Suite 925 Boston, Massachusetts 02108 (617) 723-8455 rglassman@dlc-ma.org
vid Y ru . BBO #562216 BINGHAM MCCUTCHEN LLP One Federal Street Boston, Massachusetts 02110-1726 (617) 951-8000 david.yamin@bingham.com
BINGHAM MCCUTCHEN LLP One Federal Street

The undersigned as counsel for Defendants
NanCYAru<e!~ W~
Special Assistant Attorney General BBO #525550 Massachusetts Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300 nancy@doc.state.ma.us
wf!~ !fI;-
BBO #439749 Massachusetts Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 154 wdsaltzman@doc. state.ma.us
~ ~. v'
Charles W. Anderson r. BBO #635016 Massachusetts Department of Correction Legal Division 70 Franklin Street, Suite 600

21

Boston. Massachusetts 02110-1726 (617) 951-8000 carol.head@bingham.com

Boston, Massachusetts 02110 (617) 727-3300, Ext. 161 cwanderson@doc.state.ma.us

Alison Hickey Silveira BBO #666814 BINGHAM MCCUTCHEN LLP One Federal Street Boston, Massachusetts 02110-1726 (617) 951-8000 ali ' n. silveira@bingham.com

~2{l\~
Sheryl F. ant BBO #647071 Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 0211 0 (617) 727-3300, Ext. 140 sfgrant@doc.state.ma.us

Jc es R. Pingeon 0 #541852
RJSONERS' LEGAL SERVICES, INC. 10 Winthrop Square Boston, Massachusetts 02110 (617) 482-2773 jpingeon@plsma.org

Leslie Walker BBO #546627 PRISONERS' LEGAL SERVICES, INC. 10 Winthrop Square Boston, Massachusetts 02110 (617) 482-2773 lwalker@plsma.org

Robert Fleischner BBO #171320 CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, Massachusetts 01060 (413) 587-6265 rfleischner@cpr-ma.org

22

e .tted pro hac vice SON, MULLINS, RILEY & SCARBOROUGH LLP One Post Office Square, 30th Floor Boston, Massachusetts 02109-2127 (617) 573-4722 j ames.rollins@nelsonmullins.com
23

Appendix 1 - Table of Statistics and Documents

Statistics & Documents

Settlement Agreement Provision

Monthly Segregation Statistics (by facility):

Segregation Rounds

# of Segregation rounds completed;

# out of cell contacts for MH4 in Segregation;

# out of cell contacts for SMI in Segregation;

# of individual out-of-cell contacts in DDU

# of individual mental health professional sessions in DDU, indicating no-show and reasons.

Monthly Segregation Statistics (by facility): # of mental health Segregation updates completed;

Evaluation of Inmates in Segregation

# of new mental health watches;

Total days mental health watch (by constant and close);

# of 18(a) transfers out of Segregation;

# of 18(a) returns to Segregation.

Monthly DDU Statistics:

# of new mental health watches;

Total days mental health watch (by constant and close);

18(a) transfers out ofDDU;

18(a) returns to DDU.

Monthly RTU Statistics (by unit):

# of new admissions.

Other Documents:

24

Facility lists of SMI inmates admitted to and discharged from Segregation.

Monthly STU Statistics (by unit): # of new admissions. Other Documents: STU referral fonns.

Evaluation Prior to DDU Placement

Monthly DDU Statistics: # ofSMI in DDU;

Housing and Review of Inmates with Serious Mental Illness

# ofMH-4 in DDU;

# of groups offered;

# of mental health professionals offering groups;

# of group therapy sessions held;

# of no-shows for groups by reason.

Monthly Segregation Statistics (by facility):

# ofMH-4 placed in Segregation;

# of SMI placed in Segregation;

Average length of stay of MH-4 inmates (calculated upon release from segregation);

Average length of stay of SMI inmates (calculated upon release from Segregation);

# of out of cell contacts for MH-4;

# of out of cell contacts SMI;

# of individual mental health professional sessions;

# of no-shows and reasons;

25

# of groups offered;
# of mental health professionals offering groups;
# of group sessions held per month;
# of inmates in group therapy per month;
# of no-shows and reasons.
Other Documents:
Central Office Segregation Oversight Committee Minutes;
Forms for tracking the provision of structured and unstructured out of cell time and privilege levels provided to SM! pre-program inmates and SMI SMU inmates (three times a year, by request).

Monthly STU Statistics (by unit):

STU Termination

# of inmates discharged by termination.

Other Documents:

Report of clinical case conference convened upon termination consideration.

Documents:

IMS Unit Operations - SMU Reviews screen (by facility, upon request three times a year);

Central Office Segregation Review Committee Monthly Report;

STU referral forms and packages.

Documents:

Number of Secure Units and Beds

DOC notification to DLC upon:

1. STU bed number change;

2. Major change in policies or programs that facilitate

26

the goal of reducing SMI confinement in DDU or SMUs.

Monthly STU Statistics (by unit):

STU Treatment and Programming

# of individual psychiatry sessions;

# of no-shows for psychiatry by reason;

# of individual mental health professional sessions;

# of no-shows for individual contact;

# of group treatment sessions scheduled;

# of group treatment sessions conducted (by type);

# of inmates enrolled in group therapy;

# inmates that participated in group therapy;

% group attendance;

# of no-shows for groups by reason;

Average # of hours out-of-cell structured programming per inmate;

Average # of hours out-of-cell unstructured programming per inmate.

Other Documents:

Group schedules;

Forms for tracking the provision of structured and unstructured out-of cell-time and privilege levels provided to STU inmates, by unit (three times a year, by request.)

Notification of changes to STU Inmate Handbooks;

Program Descriptions, and 103 DOC 650, Mental Health Services;

Health Services Treatment Plan Audits.

27

Monthly Facility Statistics (by facility):

Mental Health Watch

Average duration mental health watch (days)

Other Documents:

Health Services Division Mental Health Watch Audit.

Documents:
Morning Meeting Minutes (three times a year, by request);

Role of Mental Health in the Disciplinary Process

103 DOC 650, Mental Health Services;

Mental Health Consultation for Disciplinary Disposition Forms (three times a year, by request).

Documents:

Training

Lesson plans and rosters for training conducted.

Documents:

Other Documents

A roster of the inmates in each Segregation unit and STU listing the name of each inmate housed in those units on the first day of each month during the reporting period, the date of admission to the unit and length of stay in the unit, whether the inmate is an open mental health case, the inmate's mental health classification, whether the inmate is designated as SMI, the diagnosis and any current psychotropic medications. For inmates in the DDU, the roster will also state the reason for the inmate's DDU placement and the date of his projected release.

The Department of Mental Health reVIews of Segregation Units conducted pursuant to G.L. c. 127, § 39, along with the Department's responses;

All completed mortality reviews for any suicide or suicide-related death conducted by the Department

28

pursuant to 103 DOC 622, Death Procedures, and provided in accordance with state confidentiality laws concerning any open mental health inmate In Segregation or any STU.
29

 
 Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 1 of 33

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DISABILITY LAW CENTER, Plaintiff,
v.
MASSACHUSETTS DEPARTMENT OF CORRECTION, ET AL.,
Defendants.

) ) ) ) C.A. No. 07-10463-MLW ) ) ) ) )

MEMORANDUM AND ORDER

WOLF, D.J.

April 12, 2012

I. INTRODUCTION

This case was brought in March, 2007, following reports of a

number of suicides by mentally ill prisoners in the custody of the

Massachusetts Department of Correction (the "Department"),

including many held in segregated confinement. Plaintiff

Disability Law Center (the "DLC") represents all Massachusetts

prisoners with mental illnesses. It alleges that the Department,

and certain individuals sued only in their official capacities,

violated the federal constitutional rights of mentally ill inmates

by subjecting those inmates to disciplinary and other forms of

segregation for prolonged periods of time. The complaint seeks

declaratory and injunctive relief.

In November, 2007, in the context of the Department's

independent initiatives to improve conditions for mentally ill

inmates in correctional facilities, the parties began attempting to

settle this case. In 2008, they asked the court to conduct a

settlement conference. This court has long believed that the

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 2 of 33
settlement of cases involving the constitutionality of the conduct
of public officials is important in our democracy. As the court
explained in 1990, judges:
should understand that in some cases the values to be protected by the Bill of Rights may best be served when other officials are required to recognize and wrestle with their responsibilities for constitutional interpretation. As a corollary of this, judges should realize that they may often best serve constitutional interests by encouraging the responsible public officials and their constituents to settle constitutional controversies on proper terms, rather than by deciding the questions such controversies present.
Spacco v. Bridgewater School Department , 739 F. Supp. 30, 35 (D.
Mass. 1990).1 With these principles in mind, the court agreed to
the parties' request that it mediate their settlement discussions.
However, the court informed the parties of its view that
judges should become involved in the administration of prisons only
as a last resort and then only to the most limited extent
necessary.2 It urged the parties to develop a settlement that
would be consistent with these principles or risk having any
1 This is also the express intention of Congress, which has enacted a statute concerning state correctional and other institutions that states: "It is the intent of Congress that deplorable conditions . . . amounting to deprivations of rights protected by the Constitution or laws of the United States be corrected, not only by litigation . . . , but also by the voluntary good faith efforts of agencies of Federal, State, and local governments." 42 U.S.C. §1997g; see also 42 U.S.C. §1997.
2 As explained in this Memorandum, the court's view regarding its proper role in prison litigation is consistent with the principles codified in the Prison Litigation Reform Act (the "PLRA"), 18 U.S.C. §3626.
2

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 3 of 33
proposed resolution requiring judicial approval rejected by the court.
The parties' initial two-year effort to negotiate a settlement was frustrated by a fiscal crisis that constrained the Department's ability to agree to certain reforms. However, they eventually resumed settlement discussions. In December, 2011, the parties informed the court that they had agreed to a comprehensive Settlement Agreement (the "Agreement"). The Agreement, however, does not become effective unless the court approves it and agrees to retain jurisdiction over the case. Essentially, the court is asked to review the Agreement to ensure that it is fair, reasonable, and adequate, and if it is, stay the case while the parties perform under the Agreement.
The court continues to believe that a reasonable settlement of this case would be in the public interest. However, the Agreement raises a series of questions which the parties briefed and argued at hearings in February and March, 2012.
First, the court has considered its authority to approve the Agreement and stay the litigation. As discussed in this Memorandum, a federal court has inherent authority to stay litigation in order to m anage its docket. The Supreme Court has recognized that a district court can retain jurisdiction to enforce a private settlement agreement when it dismisses a case. See Kokkonen v. Guardian Life Ins. Co. of Americ,a 511 U.S. 375, 381-82
3

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 4 of 33
(1994). It follows that a federal court can also retain jurisdiction to enforce a private settlement agreement when it exercises its inherent authority to stay a case and remove it from the active docket.
It is permissible and appropriate for the court to evaluate the parties' Agreement before deciding whether to stay this case. While the court does not have the authority to review and approve private settlement agreements in ordinary litigation, it has the discretion, if not the duty, to do so here because the settlement is entered into by DLC acting in a representative capacity, and the rights of individuals who are not parties will be affected. Since the individuals whose interests are at stake are alleged to have serious mental illness, it is particularly appropriate that the court evaluate the fairness of the Agreement in deciding whether to stay litigation that was brought to protect their constitutional rights. Therefore, the court has evaluated the fairness of the settlement.
The court has also considered whether approving the Agreement and staying the litigation would comport with the requirements of the PLRA. The PLRA prohibits the court from granting or approving "prospective relief" unless it finds such relief "extends no further than necessary to correct the violation of a Federal right." 18 U.S.C. §3626(a)(1)(A). In this case, as in most prison litigation resolved by agreement, the Department denies that it is
4

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 5 of 33
violating the federal rights of any inmate and the stay of litigation for which the Agreement provides precludes the court from deciding whether such a violation has been proven. Therefore, if the judicial action required by the Agreement is "prospective relief," the findings required by §3626(a)(1)(A) could not be made and the required approval of the Agreement could not be granted.
However, as explained in this Memorandum, §3626(a)(1)(A) is not now implicated in this case because the court is not now ordering any "prospective relief" or, indeed, any "relief" at all. The requirements of §3626(a)(1)(A) must be satisfied in a case resolved by a "consent decree," but not in a case resolved by a "private settlement agreement." While the review and approval of a settlement agreement and retention of jurisdiction to enforce it are not typical of a private settlement agreement, they are also not incompatible with a private settlement agreement generally or as defined in the PLRA. The order requested in this case is not enforceable by contempt, which is an essential characteristic of a consent decree. The order requested is not enforceable by contempt because the court is not ordering the parties to comply with their Agreement or to do anything at all. Instead, the court is merely staying the litigation and providing the parties with an opportunity to perform under their Agreement. 3 As explained in
3 If the stay is lifted, DLC would be required to prove a violation of a federal right as well as a breach of the Agreement to obtain prospective relief that will be subject to the narrow
5

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 6 of 33
this Memorandum, the parties' Agreement is, therefore, far more similar to a "private settlement agreement" than to a "consent decree," as these terms are used in the PLRA. As the court is not now being asked to enter an order that constitutes a consent decree and provides "prospective relief," the requirements of §3626(a)(1)(A) do not now apply.
Because the PLRA's limitations on "prospective relief" are not now implicated, the court has evaluated the Agreement solely to determine whether it is fair, reasonable, and adequate. The court finds that the Agreement should be approved.
Where, as here, a settlement has been negotiated at arm's length after discovery that is sufficient for a plaintiff to make informed decisions, the settlement is presumed reasonable. This presumption of reasonableness is confirmed by the terms of the Agreement. The Agreement addresses the fundamental issue in this case – prison suicides – by providing a process for minimizing the possibility that inmates with serious mental illnesses will be confined in segregation and for reviewing the mental health of inmates in segregation. Its reliance on Secure Treatment Units as a therapeutic alternative to confinement in segregation represents the best current practices concerning mentally ill inmates. Moreover, the implementation of many of the reforms required by the
tailoring requirements of §3626(a)(1)(A). 6

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 7 of 33

Agreement has already succeeded in decreasing self-injurious

behavior and enhancing the safety of prison personnel.

In assessing the reasonableness of the settlement, the court

has also considered the limited judicial role that the Agreement

provides. The Agreement requires that the parties attempt to

resolve any future disputes before requesting a lifting of the stay

to litigate any issues that are truly intractable. The court is

asked to retain jurisdiction generally for only three years and, in

any event, for no more than five years if the Department breaches

the Agreement. The limited role provided for the court contributes

to the conclusion that the Agreement should be approved.

This is a case in which DLC has zealously represented the

interests of mentally ill inmates. The Department has vigorously

represented the interests of the Commonwealth of Massachusetts,

which include deciding itself how to discharge the constitutional

duty to provide adequate medical care for mentally ill inmates and

to protect their safety. The

Department has resisted any

temptation to abdicate its responsibility to meet the challenges

these inmates present and thus compel the courts to make the

legally required, difficult decisions.

In these circumstances, it is particularly appropriate that

the court approve the fair settlement that the parties have agreed

upon and stay the litigation as they perform under their Agreement.

In view of the constructive cooperation that has led to the

7

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 8 of 33
settlement, the court hopes and trusts that its active involvement in this case is now concluded. II. PROCEDURAL HISTORY
This case was filed by DLC on March 8, 2007, on behalf of all Massachusetts prisoners with mental illnesses. As the Massachusetts agency designated pursuant to the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. §§10801 et seq., DLC is authorized to pursue legal and other remedies to ensure that individuals with mental illness are protected from abuse and neglect.
The complaint alleges that the isolation experienced in disciplinary and other forms of segregation within correctional facilities exacerbates existing mental illnesses suffered by some inmates and generates new mental illness in others who were previously healthy. In its complaint, DLC describes the alleged experiences of numerous inmates in Department facilities who it contends engaged in self-destructive behavior or committed suicide while being held in segregated confinement, including inmates who were held in segregation for years at a time despite recommendations from clinicians that they be removed from segregation. DLC further alleges that Department officials were aware of the serious risk of harm that segregation posed for mentally ill inmates and did not provide adequate mental health screening and services, or adequate alternatives to segregation for
8

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 9 of 33
mentally ill inmates. It is alleged that these inmates were, therefore, subjected to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, and that the defendants also violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq.
In its Answer, the Department denied the allegations in the Complaint. However, at the same time, it described the reforms it had initiated before the suit was filed to address the plight of mentally ill inmates. These reforms were based on recommendations made by the Department's expert consultant on prison suicide prevention, Dr. Lindsay M. Hayes.
The parties began attempting to settle this case in November, 2007. In 2008, they asked the court to try to mediate a settlement. Expressing its previously described confidence that such constitutional cases are best resolved by the agreement of the parties themselves, the court accepted the parties' invitation to mediate their settlement discussions.4 However, as also discussed earlier, the court urged the parties to reach an agreement that would not unnecessarily involve the court in prison administration and would only require judicial action as a last resort.
4 The parties agreed that they would not request the court's recusal based on its participation in their settlement discussions.
9

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 10 of 33
While discovery and litigation were generally stayed, the court allowed discovery important to the settlement discussions, including visits by DLC and its experts to Department facilities. The court met periodically with the parties. In addition, the Department continued to implement certain reforms relating to mentally ill inmates.
However, after almost two years of settlement discussions, the parties could not progress further because a fiscal crisis imposed new constraints on the Department's ability to agree to additional reforms. Therefore, in February, 2010, the stay of litigation was lifted.
Subsequently, the parties engaged in extensive discovery. This involved, among other things, visits by DLC and its experts to several Department facilities, and interviews with more than 100 inmates.
The parties eventually privately resumed their settlement discussions. On December 12, 2011, after years of discovery, litigation, and negotiations, the parties reported that they had reached a settlement and requested the court's approval of their Agreement.
Except in certain circumstances, the Agreement prohibits the placement of inmates with serious mental illness in Departmental Disciplinary Units, a form of segregation, and limits the use of other forms of segregation of inmates with serious mental illness.
10

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 11 of 33
In the Agreement, the Department undertakes to screen inmates both before and during confinement in segregation. The Department has also agreed to maintain a number of Secured Treatment Units to provide an alternative to segregation for inmates with serious mental illness, and to integrate mental health professionals into the disciplinary process. Pursuant to the Agreement, the Department will seek to place inmates who have serious mental illness or who are at risk of substantial deterioration of their mental health in alternatives to segregation. The Agreement provides that when inmates with serious mental illness are held in segregation, they will receive additional mental health services, and their status will be regularly reviewed by facility administrators and at least one mental health professional to determine whether alternatives to segregation exist. The parties assert that these measures achieve the plaintiff's main goals in bringing this case, while institutionalizing initiatives the Department has begun to implement and which have already caused a significant reduction in self-injurious behavior by inmates and harm to prison staff.
Pursuant to the Agreement, the Department will periodically provide DLC with data and documents concerning whether the Department is complying with its contractual obligations. In addition, the Department will give limited access to its facilities, personnel, and inmates to an expert retained and paid
11

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 12 of 33
by DLC to monitor and assess the Department's compliance with the Agreement.
The Agreement establishes a process for DLC to notify the Department of any concerns about compliance and for the parties to attempt to resolve any disputes privately. If the parties are not successful in privately resolving a dispute regarding compliance with the Agreement, they may seek relief from this court, which is the sole forum for its enforcement.
The Agreement also provides that the court will retain jurisdiction over the case for three years with respect to any provision for which there is no outstanding determination that the Department is not in substantial compliance. If during the three year period the court decides that the Department is not in substantial compliance with a provision of the Agreement, the court may extend its jurisdiction with regard to that provision for up to two years from the date of the finding of substantial noncompliance. Therefore, it is possible that the court will retain jurisdiction for up to five years.
The Agreement p rovides that if the court finds that the Department is not in substantial compliance with any provision of the Agreement, it may issue an order designed to achieve compliance, but not initially an order of contempt. Pursuant to §X.B.3 of the Agreement, any such remedial order must comply with the requirements of the PLRA. As the parties ag ree, this means
12

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 13 of 33
that to obtain an order providing relief that is enforceable by contempt, plaintiff must prove not only that a provision of the Agreement has been violated but also that there has been a violation of a federal right, and that the relief ordered is limited only to what is necessary to remedy that violation as required by the PLRA, 18 U.S.C. §3626(a)(1)(A). See March 9, 2012 Tr. at 11-12.
Finally, pursuant to the Agreement, without stipulating that the plaintiff is the prevailing party, the Department will pay $1,250,000 to DLC as attorney's fees and costs. This amount settles any claim by DLC for fees and costs incurred prior to the date of approval of the Agreement. It does not cover possible future fees and costs incurred during any proceeding to enforce the Agreement, for which DLC may seek an award if it is the prevailing party. The Agreement requires that the plaintiff pay all fees and costs incurred by the expert designated to monitor the Department's compliance with the Agreement.
On January 6, 2012, the court ordered the parties to submit additional briefing on a number of issues, including the proper standard for the court's consideration of the request for approval of the settlement and proposed attorney's fees, the impact of the Agreement on the claims of inmates, and the role of the court in enforcing the settlement. After a hearing on February 2, 2012, the court ordered additional briefing on the implications of the PLRA
13

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 14 of 33
for the court's authority to approve the Agreement and retain jurisdiction over the case as the parties request. A further hearing was held on March 9, 2012.
Although memoranda generally discussing the Agreement have been part of the public record, as requested by the parties the Agreement itself has been under seal because it has been uncertain whether the court would approve it. The parties agree, however, that the Agreement should be unsealed if and when it is approved by the court. III. ANALYSIS
A. It is Appropriate for the Court to Stay Further Proceedings and Retain Jurisdiction The Supreme Court recognized in Kokkonen that a United States district court may retain jurisdiction to enforce the provisions of a private settlement agreement even as it dismisses the litigation that the settlement resolves. 511 U.S. at 381-82. If the court does not issue an order of dismis sal that states it is retaining jurisdiction or incorporate the terms of the settlement agreement into the order of dismissal, enforcement of the settlement agreement is left for state courts, unless there is an independent basis for federal jurisdiction. Id. However, the Supreme Court explained that: If the parties wish to provide for the court's enforcement of a dismissal-producing settlement agreement, they can seek to do so. When the dismissal is pursuant to Federal Rule of Civil Procedure 41(a)(2), which specifies that the action "shall not be dismissed
14

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 15 of 33
at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper," the parties' compliance with the terms of the settlement contract (or the court's "retention of jurisdiction" over the settlement contract) may, in the court's discretion, be one of the terms set forth in the order. Even when, as occurred here, the dismissal is pursuant to Rule 41(a)(1)(ii) (which does not by its terms empower a district court to attach conditions to the parties' stipulation of dismissal) we think the court is authorized to embody the settlement contract in its dismissal order (or, what has the same effect, retain jurisdiction over the settlement contract) if the parties agree.
Id.
As described earlier, in this case the court has been asked to
approve the settlement, stay the case while the parties perform the
Agreement, and retain jurisdiction for at least three years and up
to five years in certain circumstances. As Kokkoneninstructs that
it is permissible for a federal court to retain jurisdiction to
enforce a settlement agreement after a case has been dismissed, it
follows that a court may also take the lesser step of staying the
case while retaining jurisdiction over possible disputes concerning
compliance with a settlement agreement. The court may do so
because "federal district courts possess the inherent power to stay
pending litigation when the efficacious management of court dockets
reasonably requires such intervention." Marquis v. FDIC, 965 F.2d
1148, 1154 (1st Cir. 1992). This "power to stay proceedings is
incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants." Landis v.
15

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 16 of 33
North America Co., 299 U.S. 248, 254 (1936). The First Circuit has endorsed the "familiar" use of administrative closings in order to remove litigation from a court's active files "in circumstances in which a case, though not dead, is likely to remain moribund for an appreciable period of time." Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 392 & n.3 (1st Cir. 1999).
In the circumstances of this matter, the court finds that it is permissible and appropriate to stay further proceedings and retain jurisdiction as requested by the parties if the Agreement is fair. Permitting the parties to perform under their Agreement and return to this court as a last resort will conserve judicial resources, particularly where, as here, the cooperation that led to the Agreement provides the realistic hope that no future involvement of the court will be necessary.
B. The Court has the Discretion, if not the Duty, to Evaluate the Settlement As explained previously, the Agreement provides that it becomes effective only if the court approves it. This requirement has prompted the court to consider whether it has the authority to approve the settlement and, if so, whether it should exercise it. This inquiry is necessary because federal courts generally "have neither the authority nor the resources to review and approve the settlement of every case brought in the federal court system." Caplan v. Fellheimer Eichen Braverman & Kaskey , 68 F.3d 828, 835 (3d Cir. 1995). Settlement "is solely in the hands of the parties"
16

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 17 of 33
in the case of "ordinary litigation, that is, lawsuits brought by one private party against another private party that will not affect the rights of any other persons." Ibarra v. Texas Employment Comm'n, 823 F.2d 873, 878 (5th Cir. 1987) (internal quotations omitted); see also Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984).
The instant case, however, is not "ordinary litigation" brought by one private party against another. Rather, it is a suit against the state brought on behalf of mentally ill individuals by an organization that is designated pursuant to federal law to protect their rights. The fact that the case was filed on behalf of people who are not litigating it makes it similar to a class action or to an action litigated by a receiver, neither of which may, under the Federal Rules of Civil Procedure, be settled and dismissed without court approval. See Fed. R. Civ. P. 23(e), 66. The relevant Federal Rules of Civil Procedure are codifications of the common law, which "may call for review and approval in a variety of contexts where the settlement requires court action, particularly if it affects the rights of nonparties or nonsettling parties, or where the settlement is executed by a party acting in a representative capacity." Manual for Complex Litigation(Fourth) §13.14 (2004) at 172 (footnotes omitted). As the individuals whose interests are at stake in this case are alleged to be mentally ill, it is particularly important that the court determine whether the
17

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 18 of 33
settlement was reached without collusion and is fair to them. In essence, the nature of this case provides the court the discretion, if not the duty, to exercise its previously discussed inherent authority to grant the requested stay of the claims DLC has made on behalf of mentally ill inmates only if the Agreement is found to be fair to them. See Bragg v. Robertson, 54 F. Supp. 2d 653, 662-63 (S.D.W. Va. 1999) (court had authority to review settlement agreement before dismissing claims, where litigation was "citizen suit" brought by plaintiffs acting as surrogate attorneys general rather than typical private litigant, and parties had emphasized that the litigation affected rights of people who were not parties to the suit and involved matters of public interest); Gaxiola v. Schmidt, 508 F. Supp. 401, 402-03 (E.D. Tenn. 1980) (approving settlement involving minor plaintiffs after holding evidentiary hearing to determine whether the settlement was in their best interest).
The conclusion that the court may, and in this case should, condition the requested stay on a finding that the Agreement is fair is reinforced by the fact that the parties have made approval a prerequisite to the Agreement taking effect. In the absence of an independent duty to approve a settlement, the parties do not have the power to compel the court to do so. However, the Agreement involves matters that may affect whether mentally ill inmates will live or die. Therefore, regardless of whether the
18

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 19 of 33
court has a duty to decide whether to approve the Agreement or only the discretion to do so, it is important that the court not unnecessarily frustrate the implementation of the Agreement by declining to evaluate its merits.
C. The Settlement is Fair, Reasonable, and Adequate Therefore, the court has examined the Agreement to determine whether it is fair, reasonable, and adequate. This limited inquiry is comparable to that which is made in analogous contexts. See Voss v. Rolland, 592 F.3d 242, 251 (1st Cir. 2010) (district court approving class action settlement must decide whether it is "fair, reasonable, and adequate"); City Of Bangor v. Citizens Communications Co., 532 F.3d 70, 93 n.10 (1st Cir. 2008) (private settlements in cases involving Comprehensive Environmental Response Compensation and Liability Act evaluated to ensure fairness, adequacy, and reasonableness); see also Robidoux v. Rosengren, 638 F.3d 1177, 1179 (9th Cir. 2011) (district court considering settlement agreement involving federal claims of minors must consider whether settlement's provisions as to each minor plaintiff are fair and reasonable); Bragg, 54 F. Supp. 2d at 670 (approving and retaining jurisdiction to enforce private settlement after finding settlement to be "fair, adequate, reasonable, and faithful to the environmental statutes under which the litigation was brought").
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 20 of 33
Generally, "[i]f the parties negotiated at arm's length and conducted sufficient discovery, the district court must presume the settlement is reasonable." In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 32-33 (1st Cir. 2009) (class action settlement). This presumption applies here. The Agreement was reached after the plaintiff received substantial formal and informal discovery, and was the result of years of arduous, arm's length negotiations by energetic and experienced counsel. The plaintiff also had the benefit of the informed advice of a prison psychiatrist, Dr. Kathryn Burns, who has significant experience as an expert witness and as a monitor in prison mental health litigation. In addition, the Agreement follows a previous, unsuccessful attempt between 2007 and 2009 to reach a settlement, during which the court observed the integrity of the negotiations, including the absence of collusion. In these circumstances, the proposed settlement is presumed to be reasonable.
This presumption is confirmed by the terms of the settlement. In Dr. Burns' opinion, the Agreement "reflects best correctional practices in working with seriously mentally ill [] prisoners." Jan. 25, 2012 Aff. of Kathryn Burns, Exh. O to Joint Supplemental Submission in Support of Motion to Approve Settlement Agreement, at ¶14. The Agreement, among other things, provides a reasonable process for minimizing the confinement of inmates with serious mental illness in segregation and for reviewing the mental health
20

Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 21 of 33
of inmates in segregation. It also provides Secure Treatment Units as a reasonable therapeutic alternative to segregation. The Department has already begun to implement the provisions of the Agreement, and the evidence indicates its efficacy in improving the mental health of inmates and enhancing the safety of prison personnel.
In addition, the Agreement involves an approach to protecting mentally ill prisoners that is similar to that employed in recent settlements and court orders in other jurisdictions. See Mast v. Donahue, No. 2:05-cv-00037 LJM/WGH, at ¶¶11-16 (S.D. Ind. Jan. 23, 2007) (settlement agreement excluding seriously mentally ill prisoners from Secured Housing Unit); Austin v. Wilkinso,n Civ. No. 4:01-CV-071, at ¶17 (N.D. Ohio. Jan. 8, 2002) (stipulation for injunctive relief excluding inmates with serious mental illness from particular facility); Jones'el v. Berge , No. 00-C-421-C, at §4.6 (W.D. Wis. June 24, 2002) (settlement specifying that no seriously mentally ill prisoners will be sent to, or remain in, supermax prison); Disability Advocates, Inc. v. New York State Office of Mental Health, 02-Civ-4002 (GEL), at §§1-5 (S.D.N.Y. Apr. 27, 2007) (settlement increasing therapeutic programming for inmates with serious mental illness who are subject to confinement sanction, and establishing new housing units with increased mental health services); Office of Prot. and Advocacy for Persons with Disability v. Choinsky, Civ. No. 3:03-1352 (RNC), at §§B.3-.4 (D.
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 22 of 33
Conn. Mar. 8, 2004) (settlement removing seriously mentally ill inmates from Connecticut's Northern Correctional Institution and excluding them from segregation, with limited exceptions); see also Erica Goode, Prisons Rethink Isolation, Saving Money, Lives and Sanity, N.Y. Times, March 10, 2012 (reporting many states taking steps to reduce number of inmates in long-term isolation). The fact that the Agreement provides a manner of dealing with mentally ill inmates that is comparable to recent initiatives to address similar issues in other jurisdictions is added evidence that the Agreement is reasonable.
The Agreement provides for the payment to DLC of attorney's fees and costs of $1,250,000, although the Department does not agree, and the court does not now find, that DLC is a "prevailing party" with a statutory right to fees pursuant to 42 U.S.C. §1988 or any other federal fee shifting law. This payment does not cause the Agreement to be unfair. Rather, it is itself reasonable.
The amount of the payment is not the result of collusion between the Department and DLC, or its outside counsel from other nonprofit entities and private law firms. Rather, the payment was negotiated separately from the other terms of the Agreement. See Jan. 26, 2012 Aff. of Alison Silveira, Exh. P to Joint Supplemental Submission, at ¶12. The amount to be paid is less than a conservative calculation of the lodestar and costs counsel incurred before the other terms of the settlement were agreed upon. See42
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 23 of 33
U.S.C. §1988; Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 13 (1st Cir. 2011). In addition, the amount to be paid does not include compensation for the substantial work performed by plaintiff's counsel to conclude the settlement negotiations and seek judicial approval of the Agreement, and the Agreement precludes the plaintiff from seeking an award of additional fees and costs for work performed prior to the approval of the Agreement. The plaintiff does not waive its statutory right to seek reasonable attorney's fees and costs if it prevails in any future litigation to enforce its terms. However, the Agreement makes no provision for such fees.
Moreover, the Agreement obligates the plaintiff to pay the expense of the monitoring required by the Agreement. In addition, three of the entities that will be receiving counsel fees - DLC, Prisoners' Legal Services, and the Center for Public Representation – are public interest organizations that will use the payments that they receive in service of their missions. Therefore, the attorney's fees and costs now being approved as part of the settlement will be substantially used to serve public purposes. In view of the foregoing, the provision for costs and fees is reasonable.
Finally, in assessing the reasonableness of the Agreement, the court has considered the role the Agreement provides for it. As described earlier, in agreeing to attempt to mediate a settlement
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 24 of 33
in 2008, this court told the parties that it believed that judges should become involved in prison administration only as a last resort and then only to the most limited extent necessary. This view is consistent with the man ifest purpose of the PLRA, particularly 18 U.S.C. §3626(a)(1)(A). The parties have agreed to a settlement that is compatible with these principles. As explained below, the Agreement does not require the issuance of a consent decree, or any order that provides prospective relief or is enforceable by contempt. The Agreement merely provides for a stay of this litigation while the parties work cooperatively to address the needs of inmates with serious mental illness. It also provides a process for only bringing truly intractable disputes on serious issues to the court for future litigation. The court is retaining jurisdiction over the case for only a limited time. As indicated earlier, in view of the parties' successful efforts to settle this case, the court hopes and trusts that its approval of the Agreement will be the end of its involvement in this matter. In any event, the limited role provided for the court contributes to the conclusion that the Agreement is reasonable, as well as fair and adequate.
D. The Implications of the PLRA As this case involves prison conditions, the court must assure that its approval of the Agreement comports with the PLRA. In particular, it is necessary to determine whether the requirement of
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 25 of 33
18 U.S.C. §3626(a)(1)(A) that any prospective relief not extend further than necessary to remedy the violation of a federal right is implicated by the request for approval of the Agreement and, if so, whether that requirement has been satisfied. As indicated earlier and explained below, §3626(a)(1)(A) does not apply and prohibit the judicial action now being taken – approving the Agreement and st aying the case – because the court is not now ordering any "prospective relief" or any "relief" at all. Indeed, the court is not now ordering any party to do anything.
The PLRA was enacted in 1996 "partially in an effort to curb the involvement of the federal judiciary in day-to-day prison management." Morales Feliciano v. Rullan , 378 F.3d 42, 50 (1st Cir. 2004). It prohibits a court from granting or approving "prospective relief" unless such relief meets the requirements of §3626(a)(1)(A), which states:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. In essence, §3626(a)(1)(A) requires that a court find a violation of a federal right before ordering any prospective relief and then narrowly tailor the remedy ordered to assure that it does no more than correct that violation.
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 26 of 33
The PLRA defines "prospective relief" as "all relief other than compensatory money damages." §3626(g)(7). "Relief" is defined circularly as "all relief in any form that may be granted or approved by the court." §3626(g)(9). As has been correctly observed:
The statutory definition sheds no light on the disputed term's meaning since "relief" is in essence defined as all relief. Thus, while the definition teaches that it encompasses all instances of the term, it does not tell us what demarks and distinguishes those instances from others. Coleman v. Wilson, 933 F. Supp. 954, 956 (E.D. Cal. 1996). The PLRA generally contemplates that prison litigation may be resolved by agreement in one of two ways: by a "consent decree" or by a "private settlement agreement." See§3626(c). By definition, a consent decree is a form of "relief" subject to the constraints of §3626(a)(1)(A). See §§3626(c)(1), (g)(9). The PLRA defines a "consent decree" as "any relief entered by the court that is based in whole or in part upon the consent or acquiescence of the parties but does not include private settlements." §3626(g)(1). A "private settlement agreement" is defined as "an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled." §3626(g)(6).5 Section §3626(a)(1)(A) does not
5 However, "[n]othing in this section shall preclude any party claiming that a private settlement agreement has been breached from seeking in State court any remedy available under State law." 18 U.S.C. §3626(c)(2)(B).
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 27 of 33
have to be satisfied where the litigation is resolved by a "private settlement agreement," because a "private settlement agreement" is not "relief" subject to the requirements of that provision. See §§3626(c)(2), (g)(9); see also Austin v. Hopper , 15 F. Supp. 2d 1210, 1218 (M.D. Ala. 1998).
Outside the context of the PLRA, because they are entered as judicial orders, generally consent decrees are evaluated by the court and approved only if they are fair and lawful. SeeAronov v. Napolitano, 562 F.3d 84, 91 (1st Cir. 2009). In addition, "[w]hile a consent decree begins as a settlement, it is one that 'includes an injunction, or some other form of specific relief,' which may ultimately be enforceable by contempt." Id. (quoting Charles A. Wright & Mary Kay Kane, Law of Federal Courts §98, at 702 n.2 (6th ed. 2002)); see also Rufo v. Inmates of the Suffolk County Jail , 502 U.S. 367, 378 (1992) ("A consent decree . . . is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees."); Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 518-19 (1986). Therefore, an order enforceable by contempt is a fundamental feature of a consent decree. See Local No. 93, 478 U.S. at 518; Aronov, 562 F.3d at 9192. Consistent with this, consent decrees in PLRA cases are commonly defined as orders enforceable by contempt. See, e.g. ,
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 28 of 33
Rowe v. Jones, 483 F.3d 791, 796-97 (11th Cir. 2007) (per curiam); Hazen ex rel. LeGear v. Reagen, 208 F.3d 697, 699 (8th Cir. 2000); Benjamin v. Jacobson, 172 F.3d 144, 157 (2d Cir. 1999).
"By contrast, a private settlement does not, ordinarily , receive court approval." Aronov, 562 F.3d at 91 (emphasis added). In addition, a private settlement agreement is generally not subject to judicial enforcement except in an action for breach of contract. See Kokkonen, 511 U.S. 375; see also United States v. City of Miami, 664 F.2d 435, 439 (former 5th Cir. 1981) (opinion of Rubin, J.) ("If the parties agree to compose their differences by a settlement agreement, however, the only penalty for failure to abide by the agreement is another suit."). This understanding is reflected in the PLRA's provision for the enforcement of private settlement agreements through "reinstatement of the civil proceeding that the agreement settled" or through an action in state court by a party claiming that the agreement has been breached. See 18 U.S.C. §§3626(c)(2), (g)(6); see also Hazen, 208 F.3d at 699 (distinguishing consent decrees from private settlement agreements, which are "enforceable only through a new action for breach of contract").
In the instant case, the fact that the court is required to approve the Agreement before it becomes effective and to retain jurisdiction to enforce the Agreement may suggest that it constitutes a consent decree which is subject to §3626(a)(1)(A).
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 29 of 33
See Ingles v. Toro , 438 F. Supp. 2d 203, 214-15 (S.D.N.Y. 2006); Gaddis v. Campbell, 301 F. Supp. 2d 1310, 1313-14 (M.D. Ala. 2004). However, the fact that "a private settlement does not, ordinarily, receive court approval," Aronov, 562 F.3d at 91, does not mean that a private settlement agreement may never involve approval by the court. As explained earlier, in this case the court is not evaluating and approving the settlement to determine whether any agreed-upon relief should be ordered. Rather, the court is approving the settlement as an exercise of its inherent authority to decide how to manage its docket, and to condition the requested stay – and, therefore, the retention of jurisdiction – on a finding that a settlement which affects the rights of individuals not before the court is fair.
In these circumstances, the court is not now ordering any "relief" or "prosp ective relief." In cases involving the court appointment of monitors or special masters, courts have relied on the common legal usage of the term "relief" and found that no "relief" or "prospective relief" is issued by an order that pertains to the "means of obtaining the relief" rather than to the "'ultimate form of the remedy.'" Carruthers v. Jenn,e 209 F. Supp. 2d 1294, 1300-01 (S.D. Fla. 2002) (quoting Benjamin v. Fraser, 156 F. Supp. 2d 333, 342–43 & n.11 (S.D.N.Y. 2001)); Madrid v. Gomez, 940 F. Supp. 247, 250 (N.D. Cal. 1996); Coleman , 933 F. Supp. at 957. Similarly, in the instant case, the court is only approving
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 30 of 33
an Agreement that provides a means of obtaining relief for any future violation of federal law and not now ordering any form of remedy.
The court recognizes that in Benjaminthe Second Circuit noted in dicta that because of the monitoring body's "substantial responsibilities," the distinction between "relief itself and the monitoring of relief" might be difficult to make. Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003). However, in contrast to Benjamin and the other foregoing cases in which the court ordered monitoring or the use of special masters, this court is not now ordering the parties to comply with the Agreement, including its monitoring provision, or to do anything else. It is only deciding to stay the case because the Agreement is fair and reasonable. If in the next three years DLC perceives a material breach of the Agreement and the parties are unable to resolve any dispute themselves, either party may request a lifting of the stay. Removing the stay would be comparable to the reinstatement of the case, which is a feature of a "private settlement agreement" as defined in the PLRA. See §3626(g)(6). As explained earlier, any proven violation of the Agreement will not be a basis for finding that the Department is in civil or criminal contempt. This too is generally a characteristic of a private settlement agreement, rather than a consent decree. See Aronov, 562 F.3d at 91. Once again, under the Agreement, to obtain a future order that is
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 31 of 33
enforceable by contempt, the plaintiff would have to prove both a
breach of the Agreement and a violation of federal law. Any such
order, whether entered by consent or as a result of a decision on
a disputed issue, would be an order subject to the narrow tailoring
requirements of §3626(a)(1)(A). This approach is consistent with
the purposes of the PLRA because the court is not now, in the
absence of a demonstrated violation of a federal right, becoming
involved in prison administration, see Morales Feliciano, 378 F.3d
at 50, and may do so in the future only as a last resort, if the
plaintiff demonstrates both a violation of the Agreement and a
violation of a federal right.
In view of the foregoing, the Agreement is substantially
similar to a private settlement agreement and materially different
than a consent decree, both generally and as defined in the PLRA.6
6 The court recognizes that the distinction between consent decrees and private settlement agreements has been addressed somewhat differently in cases involving the question whether a plaintiff is a "prevailing party" entitled to a statutory award of attorney's fees pursuant to 42 U.S.C. §1988 and other federal fee shifting statutes. See, e.g., Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Human Res., 532 U.S. 598, 604 & n.7 (2001); Hutchinson, 636 F.3d at 9-11. Generally, these cases have recognized a distinction, similar to that made in the PLRA and the cases implementing it, between consent decrees enforceable by contempt and private settlements enforceable through new litigation. See, e.g., Aronov, 562 F.3d at 91; Smyth, 282 F.3d at 281; Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir. 2003). Courts in these cases, however, have analyzed this distinction in a different context, in order to determine whether there is a sufficient "judicial imprimatur" to qualify the plaintiff as a "prevailing party" in the litigation. See Buckhannon, 532 U.S. at 604; Hutchinson, 636 F.3d at 11; Roberson v. Giuliani, 346 F.3d 75,
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 32 of 33
The findings required by §3626(a)(1)(A) could not now be made
because a violation of a federal right by the Department has not
been admitted or proven. However, such findings are not required
because the court is not now ordering any "relief" or "prospective
relief" and, therefore, §3626(a)(1)(A) is not implicated.
IV. ORDER
In view of the foregoing, the court finds that: it has the
inherent authority to stay this case, and to condition the
requested stay of this case upon a finding that the Agreement is
81-83 (2d Cir. 2003). In so doing, several courts, including the First Circuit, have concluded that retaining jurisdiction to enforce a settlement agreement is not materially different from entering a consent decree, and found that the plaintiffs in such cases are "prevailing parties" entitled to attorney's fees. See Hutchinson, 636 F.3d at 10-11; see also Roberson, 346 F.3d at 82-83 (finding district court's inability to use contempt power without the "extra step" of first ordering specific performance is not "significant enough to deprive plaintiffs of prevailing party status," where retention of jurisdiction did not "simply preserve a federal forum" but, rather, "effectuated the obligations of the parties under the Agreement"); but see Christina A., 315 F.3d at 993-94 (holding that settlement agreement does not make a plaintiff a "prevailing party" because violation of court order dismissing the case would not be punishable by contempt).
The foregoing cases, including the First Circuit's decision in Hutchinson, do not qualify this court's conclusion that §3626(a)(1)(A) is not implicated in this case. None of these decisions, except Christina A., involve the PLRA generally. Christina A. only addressed the fee shifting provisions of the PLRA, 42 U.S.C. §1997e(d). See 315 F.3d at 994-95. Therefore, the foregoing decisions only construe the term "prevailing party" for the purpose of 42 U.S.C. §1988 and comparable fee shifting statutes. They do not address the meaning of the terms "relief" and "prospective relief," which is the issue involved in determining whether §3626(a)(1)(A) is implicated in the instant case.
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Case 1:07-cv-10463-MLW Document 260 Filed 04/12/12 Page 33 of 33 fair, reasonable, and adequate; that such a finding is justified; and that because the court is not now ordering any prospective relief, the requirements of §3626(a)(1)(A) are not now implicated. Accordingly, it is hereby ORDERED that:
1. The Joint Motion to Approve the Settlement Agreement (Docket No. 248) is ALLOWED.
2. This case is STAYED and the court, therefore, retains jurisdiction.
3. Unless otherwise ordered, this case will be dismissed three years after the date of this Order.
4. The Settlement Agreement (Docket No. 252) is UNSEALED.
/s/ Mark L. Wolf UNITED STATES DISTRICT COURT
33

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DISABILITY LAW CENTER, Plaintiff,
v.
MASSACHUSETTS DEPARTMENT OF CORRECTION, et al,
Defendants.

) )
)
) C.A. No. 07-10463-MLW
) ) ) ) )

MEMORANDUM AND ORDER

WOLF, D.J.

August 12, 2010

A hearing was held on August 11, 2010 concerning the

Disability Law Center's (nDLC") motion to lift the stay of

discovery between DLC and third-party University of Massachusetts

Correctional Health Program (nUMCHpn), and to allow DLC's renewed

motion to compel UMCHP to produce certain documents. The documents

DLC now seeks are suicide and suicide-related morbidity and

mortality reviews in UMCHP's possession, and all notes or other

documentation related thereto, for inmates in segregation or

segregation-like units for the time period from September 15, 2005

until UMCHP ceased providing mental health services to defendant

Massachusetts Department of Correction (nDOC"), in or about July

2007.

For the reasons stated in court on August 11, 2010, the

documents now sought by DLC are relevant for the purposes of

Federal Rule of Civil Procedure 26(b) (1). In addition, as

acknowledged by UMCHP, the revised protective order concerning

confidential information that the court is issuing satisfies the

requirements of the Health Insurance Portability and Accountability

Act ("HIPAA"). Therefore, HIPAA is not now an impediment to the

production of the documents DLC seeks.

The sole remaining issue is whether the federal

psychotherapist-patient privilege precludes the production of any

or all of the documents at issue. In this suit to enforce federal

law, evidentiary privileges are governed by federal common law.

See F.R. Ev. 501; united States v. Whitney, 2006 u.S. Dist. LEXIS

74522, *5 (D. Mass. 2006). "Confidential communications between a

licensed psychotherapist and her patients in the course of

diagnosis or treatment are protected from compelled disclosure

under Rule 501 of the Federal Rules of Evidence." Jaffee v.

Redmond, 518 U.S. 1, 15 (1996)

This privilege extends to

confidential communications to a licensed social worker, and to

"the notes taken during counseling sessions" as well. Id. at 15,

18. Like any privilege, the psychotherapist-patient privilege can

be waived, either expressly or through implication, "from any

conduct or disclosure that is inconsistent with the maintenance of

the privilege." Whitney, 2006 U.S. Dist. LEXIS 74522, *12. As the

party asserting the privilege, UMCHP bears the burden of proving

that the privilege applies. See In re Grand Jury Proceedings

(Gregory P. Violette), 183 F.3d 71, 73 (1st Cir. 1999).

2

In view of the foregoing, it is hereby ORDERED that: 1. The Plaintiff's Motion to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Its Renewed Motion to Compel Production of Documents (Docket No. 123) is ALLOWED to the extent that the stay of discovery between DLC and UMCHP is LIFTED. 2. DLC shall write a letter requesting releases from inmates or their representatives, if any, whose medical or mental health records are involved in the documents sought by DLC. The letter shall inform the inmate or his or her representative of this case, that there is currently a dispute regarding whether certain of the inmate's medical records are privileged, and that this privilege may be waived by the inmate or his or her representative. The letter shall include a waiver form and a stamped envelope addressed to DLC, and shall direct any inmate or representative wishing to waive the privilege with regard to the disputed medical or mental health records to return the waiver to DLC by September 10, 2010. DLC shall deliver at least 25 copies of this letter to DOC on or before August 13, 2010. DOC shall determine to whom the documents sought by DLC apply, and shall deliver the letter to those inmates or their representatives forthwith. By August 27, 2010, DOC shall file an affidavit stating how many letters were delivered to inmates or their representatives, and how many were not deliverable.
3

DLC shall provide any waivers that it receives to UMCHP. By september 17, 2010, DLC and UMCHP shall confer and jointly inform the court of how many, if any, inmates' files are no longer in dispute.
3. DLC, UMCHP, and DOC shall confer and, by August 20, 2010, inform the court whether they have reached an agreement that moots any or all of the outstanding issues regarding the applicability of the federal psychotherapist-patient privilege to the documents sought by DLC from UMCHP.
4. If this dispute is not resolved by agreement, UMCHP shall, by August 27, 2010, file:
(a) A memorandum that addresses the applicability of the psychotherapist-patient privilege to the documents at issue and whether the privilege has been waived with regard to any or all of the documents. Among other things, UMCHP shall address the authority for disclosing purportedly privileged information for the purpose of morbidity and mortality reviews, and whether such a disclosure constitutes a waiver of any privilege.
(b) One or more affidavits addressing what, if anything, inmates at DOC facilities, including those inmates involved in the documents at issue, were told regarding the confidentiality of their communications to psychotherapists in the course of the diagnosis or treatment that they received while in DOC custody during the relevant period.
4

(c) A privilege log regarding the documents to which UMCHP asserts the federal psychotherapist-patient privilege applies. Fed.R.Civ.P. 45(d) (2); In re Grand Jury Subpoena, 274 F.3d 563, 575 (1st Cir. 2001); In re Dep't of Justice Subpoenas to ABC, 263 F.R.D. 66, 70 (D. Mass. 2009); Dorf & Stanton Communications, Inc. v. Molson Breweries, 100 F.3d 919, 925-26 (Fed. Cir. 1996).
(D) Under seal redacted and unredacted copies of the documents sought by DLC for possible camera review. See In re Sealed Case (Medical Records); 381 F.3d 1205, 1218 (D.C. Cir. 2004) ("On remand, the district court ... may review the withheld documents in camera."). If UMCHP wishes to assert that such in camera review of the unredacted documents is not a legally permissible option in the circumstances of this case, it shall, by August 27, 2010, file a motion to reconsider that portion of this Order, with a supporting memorandum.
6. DLC shall respond to UMCHP's submissions by September 3, 2010.
7. Any replies shall be filed by September 10, 2010.

0-\ ~ ~ ~--I ..p. e··
UNiIii)STATES

DISTRICT

JUDGE

~

5

 
 Case 1:07-cv-10463-MLW Document 248 Filed 12/12/11 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

DISABILITY LAW CENTER, INC.,

)

)

Plaintiff,

)

v.

)

)

MASSACHUSETTS DEPARTMENT OF CORRECTION, et )

al.,

)

)

Defendants.

)

)

CIVIL ACTION NO. 07-10463 (MLW)

JOINT MOTION TO APPROVE SETTLEMENT AGREEMENT

On October 21, 2011 counsel for the Plaintiff Disability Law Center (“DLC”) and the

Defendants (“DOC”) jointly no tified the Court th at they h ad reach ed a tentativ e s ettlement

which they believed resolved all the issues in th is litigation. Counsel re ported that they were

actively seeking approval by all the necessary pa rties and other stakehol ders. Joint Motion to

Cancel Upcom ing Status Conference, Doc. 246 ¶ 2. The Court o rdered the pa rties to “f ile a

joint s tatus report within thirty day s unless th ey f ile a join t m otion to approve a s ettlement

agreement before the status report is due.” El ectronic Order, October 25, 2011 (Boal, M.J.). A

Joint Status Report was filed on Novem ber 17, 2011 reporting that the settlem ent agreement

had received the requisite approval by the necessary parties and stakeholders. Doc. 247.

The parties now respectfully move th

at the Court approve the negotiated

comprehensive settlem ent of this m atter. Be cause th e settlem ent di scussions have been

confidential, the Parties have m oved the Court f or leave to f ile the signed Settlem ent

Agreement under seal pending its approval by the Court.

In support o f their m otion, the parties state that the Settlem ent is fair, reasonable and

adequate to resolv e th e cla ims in the plain tiff’s Com plaint. The S ettlement will b enefit

Massachusetts inm ates with ser ious m ental illn ess who are in segregation or who have been

sanctioned with segreg ation. The case has been zealously litigated, ne gotiations have been

vigorous and conducted at arm s’ length and the Se ttlement is the product of reasonable and

A/74644935.1

Case 1:07-cv-10463-MLW Document 248 Filed 12/12/11 Page 2 of 4

considered compromise. A joint memorandum of law describing in detail the course of the litigation, the process
of the settlement negotiations and the terms of the agreement is filed with this motion. The parties request that the Court schedule a hearing on this m otion at its e arliest
convenience.

Dated: December 12, 2011

Respectfully submitted,
Disability Law Center, Inc.,
By its attorneys,
/s/Alison Hickey Silveira David Yamin, BBO #562216
david.yamin@bingham.com Carol E. Head, BBO #652170
carol.head@bingham.com Alison Hickey Silveira, BBO #666814
alison.silveira@bingham.com BINGHAM MCCUTCHEN LLP One Federal Street Boston, MA 02110-1726 (617) 951-8000
Richard M. Glassman, BBO #544381 rglassman@dlc-ma.org
Nancy Jane Murphy, BBO #663749 nmurphy@dlc-ma.org
DISABILITY LAW CENTER, INC. 11 Beacon Street, Suite 925 Boston, MA 02108 (617)723-8455
James Pingeon, BBO #541852 jpingeon@plsma.org
Leslie Walker, BBO #546627 lwalker@plsma.org
Bonnie Tenneriello, BBO #662132 btenneriello@plsma.org
PRISONERS’ LEGAL SERVICES, INC. 8 Winter Street, 11th Floor Boston, MA 02108 (617) 482-2773

A/74644935.1

2

Case 1:07-cv-10463-MLW Document 248 Filed 12/12/11 Page 3 of 4
Robert Fleischner, BBO #171320 rfleischner@cpr-ma.org
CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 (413) 587-6265
James S. Rollins admitted pro hac vice james.rollins@nelsonmullins.com
NELSON, MULLINS, RILEY & SCARBOROUGH LLP One Post Office Square, 30th Floor Boston, MA 02109-2127 (617) 573-4722

A/74644935.1

3

Case 1:07-cv-10463-MLW Document 248 Filed 12/12/11 Page 4 of 4
THE MASSACHUSETTS DEPARTMENT OF CORRECTION, et al., By their attorneys: NANCY ANKERS WHITE Special Assistant Attorney General
/s/ William D. Saltzman William D. Saltzman BBO No. 439749 Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 154 wdsaltzman@doc.state.ma.us
/s/ Charles W. Anderson Jr. Charles W. Anderson Jr. BBO No. 635016 Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 161 cwanderson@doc.state.ma.us
/s/ Sheryl Grant Sheryl Grant BBO No. 647071 Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 140 sfgrant@doc.state.ma.us
CERTIFICATE OF SERVICE
I hereby certify that this docum ent file d through the ECF syst em will be sent electronically to the reg istered participants as identified on the Notice of Electron ic Filing and paper copies will b e sent to those indicated as non-reg istered participants on D ecember 12, 2011.
/s/ Alison Hickey Silveira

A/74644935.1

4

 
 Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 1 of 44
1

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF MASSACHUSETTS

3

No. 1:07-cv-10463-MLW

4

5

DISABILITY LAW CENTER, INC.,

6

Plaintiff

7 vs.
8

9

MASSACHUSETTS DEPARTMENT OF CORRECTION, et al,

10

Defendants

11

12

*********

13

14

For Hearing Before:

Chief Judge Mark L. Wolf

15

16

Approval of Settlement

17

United States District Court

18

District of Massachusetts (Boston)

One Courthouse Way

19

Boston, Massachusetts 02210

Friday, March 9, 2012

20

21

********

22

REPORTER: RICHARD H. ROMANOW, RPR

23

Official Court Reporter

United States District Court

24

One Courthouse Way, Room 5200, Boston, MA 02210

bulldog@richromanow.com

25

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 2 of 44
2

1

A P P E A R A N C E S

2

3 JAMES S. ROLLINS, ESQ.

Nelson, Mullins, Riley & Scarborough, LLP

4

One Post Office Square, 30th Floor

Boston, Massachusetts 02109-2127

5

(617) 573-4722

Email: James.rollins@nelsonmullins.com

6 and

RICHARD M. GLASSMAN, ESQ.

7

Disability Law Center

11 Beacon Street, Suite 925

8

Boston, Massachusetts 02108

(617) 723-8455

9

Email: Rglassman@dlc-ma.org

and

10 JAMES R. PINGEON, ESQ.

Prisoners' Legal Services, Inc.

11

8 Winter Street, 11th Floor

Boston, Massachusetts 02108

12

(617) 482-2773

Email: Jpingeon@plsma.org

13 and

ROBERT D. FLEISCHNER, ESQ.

14

Center for Public Representation

22 Green Street

15

Northampton, Massachusetts 01060

(413) 586-5211

16

Email: Rfleischner@cpr-ma.org

For the Plaintiff, the Disability Law Center

17

18 WILLIAM D. SALTZMAN, ESQ.

CHARLES W. ANDERSON, ESQ.

19 SHERYL F. GRANT, ESQ.

NANCY ANKERS WHITE, ESQ.

20

Commonwealth of Massachusetts

Department of Correction

21

70 Franklin Street, Suite 600

Boston, Massachusetts 02110

22

(617) 727-3300

Email: Wdsaltzman@doc.state.ma.us

23

For the Defendant, the Mass. Department of Correction

24

25

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 3 of 44
3

1

P R O C E E D I N G S

2

(Begins, 2:15 p.m.)

3

THE CLERK: Civil Action 07-10463, Disability

4 Law Center, Inc. versus Massachusetts Department of

5 Corrections, et al. The Court is in session. You may

6 be seated.

7

THE COURT: Good afternoon. Would counsel

8 please identify themselves for the court and for the

9 record.

10

MR. ROLLINS: I'm Jim Rollins of Nelson,

11 Mullins, Riley & Scarborough for the plaintiff,

12 Disability Law Center.

13

MR. FLEISCHNER: Good afternoon. Robert

14 Fleischner for the Center For Public Representation for

15 the plaintiff, Disability Law Center.

16

MR. PINGEON: Good afternoon, your Honor.

17 James Pingeon for the Prisoners' Legal Services

18 representing the plaintiff.

19

MR. GLASSMAN: Good afternoon, your Honor.

20 Richard Glassman from the Disability Law Center for the

21 plaintiff.

22

MS. WHITE: Good afternoon, your Honor. Nancy

23 White for the defendant, Department of Correction.

24

MR. SALTZMAN: Good afternoon, your Honor.

25 William Saltzman for the defendants.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 4 of 44
4

1

MS. GRANT: Good afternoon, your Honor.

2 Sheryl Grant for the defendants.

3

MR. ANDERSON: Good afternoon, your Honor.

4 Charles Anderson for the defendants.

5

(Pause.)

6

THE COURT: Okay. As you know, pursuant to

7 your consent, this proceeding is being recorded and will

8 eventually be available on the United States Court's

9 website.

10

I've reviewed your very helpful joint submission

11 in response to the February 6th, 2012 order involving

12 the questions that emerged or evolved at the last

13 hearing and I continue to commend you for having reached

14 the agreement that you've reached. I continue, though,

15 to have some questions under the Prison Litigation

16 Reform Act and some associated issues. Let me tell you

17 what my present thinking is and we'll go from there.

18

Your submission caused me to think that it may be

19 most appropriate to view the settlement agreement in

20 this case as a private settlement agreement in which the

21 Court retains jurisdiction, something the Supreme Court 22 noted a court can do in Kokkonen. The remedy would be

23 the reopening of the case, not reinstatement, because it

24 wouldn't actually be dismissed, but the functional

25 equivalent of reinstatement, which is one characteristic

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 5 of 44
5

1 of a private settlement agreement as opposed to a

2 consent decree under 18 United States Code Section

3 3626(g)(6).

4

As I understand it, under the settlement agreement

5 the Court is not now being asked to find or finding any

6 violation of a federal right nor, I think, am I now

7 ordering any perspective relief or arguably any relief

8 at all. I am, however, being asked to approve the

9 settlement. If I'm not granting or approving any

10 prospective relief, it's not necessary to find that the

11 remedy in this case is narrowly tailored only to correct

12 a violation of a federal right, Section 3626(a)(1) would

13 not apply.

14

Yet the parties assert that the agreement provides

15 that if the case is reopened, the Court would have to

16 find a violation of a federal right before it could

17 enforce the terms of the settlement agreement and then

18 narrowly tailor the remedy to the violation that's

19 found. Okay? When I finish this soliloquy I'm going to

20 want to know if I understand that right, that's the

21 parties' position, and where that is in the agreement.

22 I think you're referring to Section 11(b), but I'm not

23 sure. It was something that you -- just listen to

24 this. I'll give you a chance to look before you have to

25 say anything.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 6 of 44
6

1

The settlement agreement provides, in effect, for

2 a stay of litigation and the administrative closing of

3 the case and the retention of jurisdiction and the

4 parties cite authority for the contention that this

5 isn't a consent decree. It's on Page 13, I think, of 6 your most recent submission, you note Stickman, Bryant 7 and Davis.

8

I have some questions about whether it's proper

9 for me to reason the way I just did and to say this is a

10 private settlement agreement and subsection (a) doesn't

11 have to be satisfied. Here are my questions.

12

The statute 3626(g) says that a consent decree

13 means any relief entered with the consent of the

14 parties. So I guess there's the question, "Am I

15 entering any relief?" And you have educated me to

16 understand that not everything that may be part of a

17 court order is relief. But I have that question in this

18 case, "Is the order I'm being asked to enter or am I

19 entering any relief?"

20

And then I have a question as to the source of my

21 authority to approve the settlement and the payment of

22 fees that you've agreed on? I think last time we were 23 talking about Aronov, which you cited for me as the

24 standard for approval, but the discussion last time may

25 have started one step ahead of where I am now. If it's

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 7 of 44
7

1 a private settlement agreement, what is -- you know,

2 what creates my obligation and power to approve the

3 settlement?

4

In Aronov, the First Circuit wrote -- this is 562

5 F.3d 84 at 90, and 93, essentially, but this is at 90 --

6 let's see where we're going, actually. It's at 91. It

7 says: "Court approval of a consent decree must involve

8 some appraisal of the merits. By contrast, a private

9 settlement does not ordinarily receive court approval.

10 A court entering a consent decree must examine its terms

11 to be sure they're fair and not unlawful."

12

So I know a contract provides for court approval

13 before it's effective. A court approval, the First

14 Circuit is saying, is ordinarily, but not necessarily

15 always a characteristic of a consent decree as opposed

16 to a private settlement. And the First Circuit goes on

17 in the next page to say that: "While a consent decree

18 begins as a settlement, it's one that includes an

19 injunction or some other form of specific relief which

20 may ultimately be enforceable by contempt. This means

21 that enforcement through an action for breach of

22 contract which may be available for private settlement

23 is insufficient to meet the standards for a consent

24 decree."

25

So the contract provides that, in the first

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 8 of 44
8

1 instance, if I were to find the contract -- if the case

2 were reopened and I were to find the contract violated,

3 I could issue an order saying "Obey the contract," but I

4 think I'd have to say, the way you now characterize it,

5 "You violated a contract that also involves a violation

6 of federal law in this case," and I could order

7 compliance with the contract and then if that order

8 wasn't obeyed, it would be punishable by contempt.

9

But anyway, this suggests -- this is a feature of

10 your settlement, no enforcement by contempt, that

11 suggests that it's a private settlement. And one thing

12 to keep in mind, although I haven't thought it all the 13 way through is, Aronov, and almost all the other cases, 14 Kokkonen, are in the context of trying to determine

15 whether somebody's a prevailing party for the purposes

16 of being entitled to attorneys fees, I think. So I

17 don't know whether that makes a difference.

18

And then I -- I don't know whether this is a

19 separate question or most appropriately analyzed under

20 the same question, but what's the source of my authority

21 to determine whether the attorneys fees are reasonable?

22 Do you have a private settlement that you've agreed to

23 pay them? One, do I look at that as just one of the

24 terms in the settlement and just determine whether it's

25 reasonable and not unlawful and/or do I make a separate

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 9 of 44
9

1 determination? And perhaps more significantly, what's

2 the source of my authority, outside the contract you've

3 entered into, to make that determination? Or is the

4 contract enough? If I think it's in the interests of

5 the administration of justice and that indeed in the

6 interests of the prisoners and the Commonwealth, do I

7 have some inherent authority to just do this? And you

8 may want to look at the contract and you may want to

9 think about what I just said for a minute.

10

And you're also free to -- you know, where we left

11 last time I was looking in this -- perhaps it's a

12 consent decree, but it doesn't involve prospective

13 relief. That's also a way to analyze this. But that

14 statute, that so many courts have noted is circular,

15 raises similar questions, and we've discussed them

16 before you briefed them. But, you know, I wonder -- and

17 do you think it's best to think of this as the private

18 settlement in which I retain jurisdiction and which

19 doesn't order any relief and then if so what's my

20 authority to approve it?

21

Do you want a break to think about this or are you

22 ready to go?

23

MR. FLEISCHNER: The plaintiff is prepared to

24 try to respond.

25

THE COURT: Go ahead.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 10 of 44
10

1

MR. FLEISCHNER: First, your Honor, the

2 section of the settlement agreement is, um, is Section

3 10(b)(3), which is on Page 18 --

4

THE COURT: Hold on.

5

MR. FLEISCHNER: -- of the settlement

6 agreement.

7

(Pause.)

8

THE COURT: What page?

9

MR. FLEISCHNER: It's on Page 18, your Honor,

10 the second paragraph from the bottom, Paragraph

11 10(b)(3).

12

THE COURT: Wait a second. Maybe I do have

13 it.

14

(Pause.)

15

MR. FLEISCHNER: We could --

16

THE COURT: Oh, I have it here.

17

(Pause.)

18

THE COURT: Let's see. 18, Paragraph 3.

19

(Pause.)

20

THE COURT: It says: "Any order to achieve

21 compliance with the provisions of this settlement

22 agreement shall be subject to the applicable provisions

23 of the Prison Litigation Reform Act, 18 U.S.C. Section

24 3626."

25

MR. FLEISCHNER: That's correct.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 11 of 44
11

1

THE COURT: So am I correct in understanding

2 that that means -- well, that the contract provides two

3 things -- and you may have explained this to me a while

4 back but I've done a number of things since then.

5

One, if you come back, the case gets reopened, the

6 mediation process doesn't work, you have to come back to

7 court. Um, one, I would be called upon to determine

8 whether there has been a violation of the contract, not

9 some other issue, more broadly defined, and, two, if

10 there was a violation of the contract, did that also

11 violate, um, the prisoners' federal rights?

12

MR. FLEISCHNER: That's correct.

13

THE COURT: Okay. So it really has those two

14 parts.

15

MR. FLEISCHNER: It does.

16

THE COURT: On one hand it narrows the claims

17 that you can make, but it means you still have to prove

18 a violation of a federal right and not just a breach of

19 the contract.

20

MR. FLEISCHNER: That's correct, and that's

21 the intent of this paragraph.

22

And then, at that point, the Court could enter

23 relief, that would be prospective relief, and you would

24 have to make a need, narrowness, intrusiveness finding

25 that the relieve met those criteria.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 12 of 44
12

1

THE COURT: And is that the defendants'

2 understanding, too?

3

MR. SALTZMAN: Yes, your Honor.

4

THE COURT: Okay.

5

MR. FLEISCHNER: So with that understanding,

6 your Honor, I think that your description is what the

7 contract, the settlement agreement was intended to

8 achieve was entirely correct and it's our

9 understanding. In other words, we would have to show --

10 if the case -- we would have to go through the dispute

11 resolution process, if that failed, we would have to

12 come back to court, the case would have to be

13 reactivated or reopened at least on -- and only on the

14 issues in which we have raised compliance issues, we

15 would have to show first noncompliance and then, at the

16 same time, that that was a violation -- that the

17 noncompliance was a violation of the federal law before

18 you could enter relief and you could only enter relief

19 that was -- that met the federal need and was narrowly,

20 um -- was narrowly tailored and least intrusive on the

21 Department. So we agree with that.

22

I think your first question, if I understood it,

23 was "What authority do you have to approve the 24 settlement?" and you referred to the Aronov case.

25

THE COURT: Actually I think I had one before

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 13 of 44
13

1 that you address in your papers. But if I approved the

2 settlement, am I ordering any relief?

3

MR. FLEISCHNER: In our view you are not

4 ordering any relief by approving this settlement.

5

THE COURT: Because?

6

MR. FLEISCHNER: Because there is no order --

7 there is no provision in the settlement, um, that is

8 injunctive in nature or that can be enforced by

9 contempt, absent returning and going through the process

10 which we just described.

11

THE COURT: So does that mean there's no

12 prospective relief or does that mean there's no relief

13 at all in this circular setting?

14

MR. FLEISCHNER: In the circular wording and

15 the way that we read the statute - I'm sorry, in the way

16 we read the cases which are consistent with our

17 position, um, there is no relief, there is a consent

18 decree and the consent decree is a method or a means of

19 obtaining relief which will come later. I mean, it's

20 not a consent decree. Excuse me.

21

THE COURT: Yes.

22

MR. FLEISCHNER: That was not a Freudian slip,

23 um, it's a settlement agreement. And the settlement

24 agreement is a means of obtaining relief and to the

25 extent that relief is ever obtained, it's obtained later

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 14 of 44
14

1 and only after the need, narrowness, intrusiveness

2 findings. You are not ordering any relief in this -- if

3 you approve the settlement agreement.

4

THE COURT: And if it's just a private

5 settlement agreement in which I retain jurisdiction,

6 what is my authority to approve it?

7

MR. FLEISCHNER: I think that the authority is

8 that -- there are a number of factors.

9

First, is that the parties have bargained that the

10 agreement is not effective unless you approve it, which

11 of course doesn't mandate that you approve it, but

12 that's part of our bargain. Secondly, that this is a

13 settlement agreement that is in -- that affects public

14 policy and the public interest. But this is not like

15 the kind of settlement in a damage case where the

16 parties might enter into a private settlement agreement

17 for money, um, where there's no class action involved,

18 the public interest isn't involved, in this case it is,

19 and we think the case law that we've cited to you --

20

THE COURT: Well, lets look at that case law.

21 I may have misunderstood some of it, but I thought the

22 primary case you were citing for that was a District

23 Court case from Virginia.

24

(Pause.)

25

THE COURT: Is it addressed on Page 12 of your

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 15 of 44
15

1 joint submission where it says: "In the public system

2 reform litigation" -- it's the first full paragraph, "--

3 such as this case, it is not unusual for courts to

4 approve private settlement agreements and, in the

5 Court's discretion, which will retain limited

6 jurisdiction. 'Such continuing power may also arise in

7 the context of orders and decrees issued in

8 institutional reform litigation, where the public

9 interest is significantly implicated because such

10 decrees reach beyond the parties involved directly in

11 the suit and impact on the public's right to the sound

12 and efficient operation of its institutions'." This is 13 a quote from Perry-Bey.

14

I thought -- although I may have misread it, that

15 that case related to retaining jurisdiction and not

16 proving -- approving settlements?

17

(Pause.)

18

MR. FLEISCHNER: I'm sorry, your Honor?

19

THE COURT: I thought that the case you cited

20 was dealing with, you know, the fact that a court can

21 retain jurisdiction, if there's a consent decree, but

22 also if there's a private settlement. I didn't

23 understand it, although I may not have studied it

24 careful enough, to be addressing the question of the

25 Court's authority to approve a private settlement.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 16 of 44
16

1

MR. FLEISCHNER: We think there are actually

2 two steps involved. First, is that in order to retain 3 jurisdiction, under Kokkonen, we read Kokkonen to

4 require that you examine -- and actually there's 5 language in Aronov, but to the same point, that the

6 judge has to do something more than just dismiss the

7 case or make some sort of a -- some sort of an

8 administrative finding, that the judge has to have been

9 involved in the case, have studied it carefully, and we 10 believe that under Kokkonen, in order to retain

11 jurisdiction, you have to approve the settlement.

12

If this were a class action, which it is not, um,

13 we could have settled a class action -- were it a class

14 action, we could settle it by a private settlement

15 agreement and under Rule 23 you would have had to

16 approve it, and we think that the same sort of public

17 interest rules that apply to a Rule 23 approval under a

18 class action also apply in the case of a private

19 settlement agreement that affects the public interest.

20

THE COURT: Let's -- I have -- can you point

21 me to the language in Kokkonen that you have in mind?

22

(Pause.)

23

MR. FLEISCHNER: I don't have a copy of

24 Kokkonen, your Honor, sorry, nor do the defendant, I'm

25 told.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 17 of 44
17

1

THE COURT: Well, I may be able to help you.

2

In fact, do we have a printer here?

3

THE CLERK: I think so, Judge.

4

THE COURT: Okay. Print a couple of copies of

5 511 U.S. 375.

6

(Prints copies of case.)

7

THE COURT: The language might be -- this

8 somewhat engaged my attention.

9

"If the parties wish to provide for the Court's

10 enforcement of a dismissal-producing settlement

11 agreement, they can do so when the dismissal is pursuant

12 to Federal Rule of Civil Procedure 41(a)(2), which

13 specifies that the action shall not be dismissed at the

14 plaintiff's instant save-upon order of the Court and on

15 such terms and conditions as the Court deems proper.

16 The parties' compliance with the terms of the settlement

17 contract or the Court's retention of jurisdiction over

18 the settlement contract may, in the Court's discretion,

19 be one of the terms set forth in the order."

20

So I think -- is that the language you had in

21 mind?

22

MR. FLEISCHNER: Yes, it is, your Honor. I

23 think we quoted that, in part, in a quote from Brass

24 Smith on Page 12 of our brief, where we started this

25 discussion. But that is the process and the language --

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 18 of 44
18

1

THE COURT: So the idea would be you, in

2 effect, want to dismiss this case, although it's only

3 going to be administratively closed, but that's the

4 functional equivalent of a dismissal. I have the

5 authority to impose conditions. And, at your request I

6 should say "I'm not going to do this unless I'm

7 satisfied it's fair. I have to make sure that the

8 plaintiffs haven't sold out the prisoners they

9 represent."

10

MR. FLEISCHNER: That's correct. And that by

11 your approval you can retain jurisdiction under the

12 terms we've just discussed and we can enforce it under

13 the terms of the settlement agreement. We think that 14 that's -- that's what we understand the Kokkonen process

15 to be.

16

THE COURT: All right. And do you think

17 there's something in Aronov that supports that, too?

18

MR. FLEISCHNER: Well, in Aronov, as the Court

19 noted a few minutes ago, the Aronov case is a fees case

20 and it had to do with a prevailing party and in that

21 case there was an agreement, I think, to remand the

22 immigration status of the plaintiff to the immigration

23 agency. And, um, it was Judge Gertner who just signed

24 that agreement, and I don't know whether she approved it

25 or anything in that language, with the First Circuit.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 19 of 44
19

1 And then the plaintiff came back for fees and the First

2 Circuit, which the Court ordered -- the Court of Appeals

3 said that wasn't enough involvement by the Court. The

4 Court didn't play any part in the negotiation of the

5 settlement, it didn't have a hearing on it, other than

6 just to be told what it was, it wasn't at all involved,

7 and therefore, um, the immigrant or the person subject

8 to the immigration proceeding was not a prevailing party

9 for purposes of the attorney fees.

10

It's not directly on point, but there's some of

11 the same language, at least about the Court's need to --

12 at least for fees, need to do some inquiry into the

13 settlement and to have been involved in some way, which

14 we think this court has very clearly been.

15

THE COURT: That's true.

16

(Laughter.)

17

THE COURT: And then how should I analyze the

18 request to approve the fees, as part of the overall

19 fairness of the settlement, I suppose?

20

MR. FLEISCHNER: That would be our position.

21 That we've given you in, I think, our first

22 submission -- oh, perhaps the second -- well, the first

23 supplemental submission, um, in response to your

24 question about the fees, um, we gave you a certain

25 amount of -- several pages of information and some

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 20 of 44
20

1 briefs -- or some affidavits attesting to the

2 reasonableness of the fees. This is nowhere near the

3 kind of inquiry the Court would have to make if this

4 were a contested fee petition, um, which it is not.

5

We also think that the parties have, um, as part

6 of its bargain, have agreed to the fees and that the

7 extent of your inquiry need only be whether they were

8 reasonable and we think we've shown you that they are.

9 There is also a case --

10

THE COURT: I'm also interested in whether

11 they're at arm's length and I'm actually going to have

12 you address this later. But it wouldn't just be the

13 amount. But as I understand it -- and you can do it

14 now, you negotiated the settlement and then you

15 negotiated the fees afterwards and separately, is that

16 right?

17

MR. FLEISCHNER: That's correct.

18

THE COURT: Because otherwise, you know, if

19 they said to you, you know, "We'll give you x dollars if

20 you sell out your clients," um, the amount of the fees

21 might be a fraction of the time you've invested, but it

22 still wouldn't be reasonable.

23

MR. FLEISCHNER: Yeah. But the fees -- as you

24 know, that the fees were negotiated after the substance

25 -- the amount of the fees negotiated after the substance

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 21 of 44
21

1 of that settlement agreement was fully negotiated.

2

THE COURT: And what do the defendants say

3 with regard to the series of questions I've asked?

4

MR. SALTZMAN: We're certainly in agreement

5 with the plaintiffs in the characterization of the

6 decree as a private settlement and it certainly has

7 public importance and interest.

8

Now, in thinking about it, I think what we're

9 asking the court to do, when we ask the Court to approve

10 it, is really to approve the process, to approve the

11 blueprint, and we have set out a blueprint and a road

12 map of how the parties are going to proceed privately

13 from this point on. We think it's reasonable. We think

14 it's consistent with the intent of the PLRA. And we

15 also built in, um -- and, you know, a process in the

16 event that there's a bump down the road of

17 constitutional significance and the parties need to

18 return to court. But, to me, approval of the settlement

19 agreement is really approval of the process that the

20 parties have endeavored to engage in together, your

21 Honor.

22

THE COURT: You mean, to establish for the

23 future?

24

MR. SALTZMAN: Yes, your Honor.

25

THE COURT: And is it the Department's

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 22 of 44
22

1 position essentially that it just commits you to doing

2 what you're doing anyway but letting them monitor it?

3

MR. SALTZMAN: Much of what's in there we are

4 doing now, um, there are a few things that are in the

5 initiation stage, and certainly, um, data collection and

6 monitoring is very important for the period.

7

THE COURT: But I think the cases that were

8 cited in the joint submission indicate that monitoring

9 is not relief, monitoring is a way of getting

10 information to determine, for the parties, whether

11 they're going to seek relief and for the Court to

12 determine later whether relief's appropriate. Do I

13 understand that argument correctly?

14

MR. SALTZMAN: Yes. In fact, all of the data

15 collection that's attached as an appendix to the

16 agreement is specifically related to provisions of the

17 agreement and calculated to show the plaintiffs whether

18 or not defendants are doing what they're supposed to be

19 doing in the agreement. Ideally we will provide this

20 information and it will show the plaintiff that we are

21 doing what we are supposed to be doing, that there's no

22 issue, there's no need to negotiate or to come back to

23 court. The worst case scenario, it will require that we

24 sit down and attempt to resolve it before we come back

25 to court.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 23 of 44
23

1

THE COURT: And what would you say is the

2 source of my authority -- well, let me ask you this.

3 The same question.

4

Am I ordering or entering any relief if I approve

5 this settlement within the meaning of the PLRA?

6

MR. SALTZMAN: No. In my view you'd be

7 looking at the settlement as a road map and a process

8 and saying "This is sound." At this point the parties

9 can administer this settlement as a private contract.

10 You have the authority to close the case

11 administratively. The PLRA doesn't impact the authority

12 of a federal judge to manage a docket. It seems to mesh

13 nicely with the particular circumstances of the

14 settlement where no one is asking for orders up front,

15 no one believes this is really a consent decree. In

16 fact, looking at how others have grappled with

17 settlement issues under the PLRA, I think we have

18 proposed a model that may be helpful to other attorneys

19 in other jurisdictions trying to resolve institutional

20 cases of constitutional significance.

21

THE COURT: And what is -- well, what do you

22 say is the source of my authority to approve the

23 settlement and, as part of that, approve the attorneys

24 fees?

25

MR. SALTZMAN: If you look at the substantive

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 24 of 44
24

1 provisions as really falling on the side of a private

2 settlement agreement, um, in the first instance isn't it

3 up to the parties to negotiate that? And we've done

4 that.

5

THE COURT: Well, you can negotiate what you

6 want with regard to your resources, but, for example,

7 ordinarily parties cannot confer jurisdiction on the

8 Court by agreement. You know, if the District of

9 Massachusetts doesn't have jurisdiction, the fact that

10 all the parties want to litigate here doesn't mean that

11 I would have the power to do it. So I don't think, at

12 the moment, the contract enough is sufficient. But the

13 idea that I treat this as the functional equivalent of a

14 dismissal and I can condition it, you know, try to make

15 sure that there was no collusion here, for example, um,

16 that engages me. Um, but I don't know, I mean, is there

17 more you'd like to say on that?

18

I mean, and the other thing is that it may be -- I

19 think something else has to be the source of the

20 authority, but the fact that in this long and hotly-

21 contested litigation, you know, the parties have made

22 that a condition counts for something, if I have the

23 authority.

24

What's the importance of approval from the

25 defendants' perspective?

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 25 of 44
25

1

MR. SALTZMAN: From the defendants? I think

2 it's the same from the plaintiffs' perspective, um,

3 having the judicial imprimatur on this contract that has

4 great public importance is a good thing. It shows that

5 this is a matter of great importance. We are

6 acknowledging it. The plaintiffs acknowledge it. It

7 raises it above and beyond a mere contract, a mere

8 settlement. It gives it appropriate stature. And what

9 we're asking for is for the Court to look at the process

10 and say that the Court is satisfied that the parties can

11 manage it under these terms.

12

THE COURT: All right. So let's, you know,

13 for present purposes, assume -- well, let me ask you

14 this. And as you wrote the joint submission, did you

15 come to the -- and you answered the question -- you

16 know, you answered my questions from last time about the

17 consent decree first in the memo. But did you come to

18 the view that this is most appropriately regarded as a

19 private settlement agreement with retained jurisdiction

20 or do you think it's better viewed as a consent decree

21 but not one that's subject to Paragraph (a)?

22

MR. FLEISCHNER: We -- I think we said to you

23 the last time we were here that -- and, in fact, we said

24 it in our initial submission, that this was not a

25 private settlement agreement. The -- I think that your

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 26 of 44
26

1 questions helped to focus our thinking about this, um,

2 and the more that we thought about what a private

3 settlement agreement is, um, the more it became clear

4 that even though we had -- that there were parts of the

5 usual private settlement agreement process that we

6 wanted to avoid, particularly enforcement in the state

7 court through specific performance, we had, in fact,

8 negotiated something that looks like a private

9 settlement agreement.

10

THE COURT: And that's about -- is that the

11 defendants' view at the moment, too?

12

MR. SALTZMAN: Well, our thinking has evolved

13 together on this, your Honor.

14

THE COURT: Because -- I mean, one of the

15 things I think none of us focused on before is, you

16 know, the idea that retaining jurisdiction and even some

17 monitoring is not relief and, um -- and, you know, as I 18 pointed out, under Aronov, they say, for the purposes of

19 fees, ordinarily, um, you know, approval -- you know, a

20 private settlement agreement doesn't require approval.

21 But that doesn't communicate to me that it never can.

22 And there are some other cases that -- also fee cases

23 that may weigh -- you know, could complicate this if you

24 just took the language and mechanically applied it.

25

But I think you've got a private settlement, that

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 27 of 44
27

1 it's analogous to a motion to dismiss, but because of

2 the public interest that's implicated, I can require

3 that that be conditional. I ought to look at Rule 41.

4 I really haven't, but -- and it makes sense because it

5 is analogous to a class action, there's an institutional

6 representative. But I should satisfy myself that, you

7 know, I'm doing this hypothetically and hyperbolically,

8 you know, that you haven't agreed on the settlement so

9 you could get some attorneys fees and abandon the poor

10 prisoners.

11

Okay. So, you know, assume you've persuaded me --

12 although until I write it down, I don't think this is

13 going to be an order, um, but that this is a private

14 settlement, I have the authority to approve it, I should

15 exercise that authority to consider the merits,

16 including reasonable attorneys fees, so why is it fair,

17 reasonable and not unlawful?

18

MR. FLEISCHNER: On the attorneys fees, your

19 Honor?

20

THE COURT: No, on the whole thing.

21

MR. FLEISCHNER: Oh, on the whole thing.

22

THE COURT: Remind me.

23

MR. FLEISCHNER: Why is it fair and

24 reasonable?

25

THE COURT: So, yeah, I've read all of this

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 28 of 44
28

1 closely at different times and today I've sort of

2 focused on the legal issues. So now we're going to get

3 more global.

4

MR. FLEISCHNER: Okay. We believe that the

5 agreement -- and I think the defendants share this

6 belief, is fair and reasonable for a number of reasons.

7 The first is that it settles and resolves the issues

8 raised in the complaint. And this case is five years

9 old this month, I believe. So those issues, the

10 constitutional and statutory issues are resolved by this

11 settlement.

12

The resolution itself is reasonable.

13

THE COURT: I don't know that it resolves the

14 constitutional and statutory issues, but it moots them

15 for the moment.

16

MR. FLEISCHNER: It resolves the litigation

17 for the moment. And it's reasonable because it

18 establishes, through processes that the Department, as

19 Mr. Saltzman has already described, has either begun,

20 has in process, or is beginning, um, to provide

21 alternatives to long-term segregation for individuals

22 with serious mental illness in the Department of

23 Correction in a manner that will provide them with

24 treatment, that will increase the chances of they're

25 being able to exist in the penal system without

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 29 of 44
29

1 difficulties caused by their mental illness, and will

2 protect the public by increasing the likelihood that

3 when they're released they will be more able to conform

4 to what's expected within society.

5

It is narrowly drawn because it meets, um -- it at

6 least addresses the issues raised in the complaint

7 through the establishment of units -- of specialized

8 treatment units that are highly secure so they meet the

9 needs of the Department of Correction and of the

10 prisoners and provide a needed security and yet provide

11 a therapeutic environment which will work with their

12 mental illness and help them improve their conditions

13 and improve their conditions in the Department.

14

It is reasonable because it is, um, within the

15 context of a prison setting. These kinds of units are

16 now recognized in many jurisdictions and in some cases

17 as viable, workable alternatives to long-term

18 segregation. It's reasonable and fair because it allows

19 the prisoners to not be in their cells -- these

20 particular prisoners not to be in their cells 23 hours a

21 day, um, but they have less time in their cell and more

22 time in counseling programs in a way that does not

23 extend or overburden the Department of Correction and

24 does not involve the Court in the administration of the

25 programs that have been established.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 30 of 44
30

1

THE COURT: And why are the fees reasonable?

2 At the moment are they a matter of public record? Maybe

3 not.

4

MR. FLEISCHNER: It is public record that

5 there is an agreement on fees because that's in the

6 motion that we filed originally in the support of the

7 agreement. The figure is only in the agreement itself,

8 which is still under seal. So the figure of $1.25

9 million is not in the public domain.

10

THE COURT: It is now.

11

MR. FLEISCHNER: I guess it is.

12

(Laughter.)

13

THE COURT: Why is that reasonable? And I

14 would like it to be. You know I had concerns about

15 sealing the settlement agreement even though you talked

16 a lot about it, um, in your public submission and then I

17 kept it under seal because I had these legal questions

18 about whether I would approve the settlement, as much as

19 I commend it, whether the law, you know, how the law

20 operated here, so.

21

MR. FLEISCHNER: The fees, we believe, are

22 reasonable. Within the case law in this circuit, um,

23 they're very reasonable. The -- for a number of

24 reasons. The lodestar figure, which we gave to the

25 Department in the course of negotiation, was

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 31 of 44
31

1 considerably higher than the actual fee we agreed on.

2 The lodestar was arrived at through careful review of

3 contemporaneous time records, including reductions for,

4 um, duplication, including reductions for travel time,

5 including the elimination of time for a number of

6 attorneys who worked on the case for the plaintiffs and

7 some support people and paralegals at the private

8 firms.

9

The hourly rate charged by or asked for by the

10 private firms was less than -- less than their usual 11 hourly rate as an indication -- in the case called Rosey 12 D vs. Patrick, that there isn't necessarily what's known

13 as a "white-hat discount" for public interests or for

14 private lawyers doing this kind of work, but the private

15 firms have, in fact, taken away that discount. And even

16 with that, um, we negotiated a fee agreement was

17 considerably under our lodestar.

18

In addition, since the agreement, as the Court

19 knows, there's been a considerable amount of time in

20 filing the -- in responding to the legitimate and

21 necessary questions of the Court and the fee for it does

22 not reflect that time at all and we -- we won't be

23 seeking that.

24

THE COURT: Okay.

25

MR. FLEISCHNER: And so far there's no fees

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 32 of 44
32

1 for monitoring.

2

THE COURT: So far there's no what?

3

MR. FLEISCHNER: We also -- the plaintiff is

4 also paying the monitor, so the fees will be used in

5 part to pay the cost of our designated expert who will

6 be monitoring the case over the next three years. It's

7 not unusual in these kinds of settlements for the

8 defendants to pay the cost of the monitoring, but we'll

9 be applying those fees to them.

10

Also, as the Court knows, three of the

11 organizations here are public interest organizations,

12 the fees will be -- these fees do not accrue to the

13 individual attorneys, but rather to the organizations

14 and will be used to further the mission of the

15 Disability Law Center, the Center for Public

16 Representation, and Prisoners' Legal Services.

17

THE COURT: And there's a process by which

18 these fees -- just to clarify it again, one, the fees

19 were not negotiated until the other elements of the

20 settlement agreement were --

21

MR. FLEISCHNER: That's correct.

22

THE COURT: And, two, it appeared from the

23 submission that there was some real negotiation with the

24 defendants about the amount of the fees. Is that

25 right?

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 33 of 44
33

1

MR. FLEISCHNER: There was. This entire --

2

THE COURT: Didn't you agree to less than you

3 originally asked for?

4

MR. FLEISCHNER: We agreed to considerably

5 less than we asked for. Significantly less. But we

6 think the figure is fair and we're anxious to settle

7 this case.

8

THE COURT: All right. And how about the

9 Commonwealth's perspective, the defendants' perspective,

10 why is this agreement reasonable, fair and not

11 unlawful?

12

MR. SALTZMAN: Well, we agree with everything

13 that Mr. Fleischner said about the content of the

14 agreement and the nature of the agreement, but what I

15 would add to it is that both sides have had the

16 opportunity to see these initiatives in effect, see

17 people who are very sick getting well, um, and actually

18 test out what we're doing, and we continue to do this.

19 And we are very, very proud of these initiatives and the

20 impact they're having on individuals with very serious

21 mental illness. We're very pleased with the impact it's

22 having on the security within the facilities, um, the

23 daily lives of the people who work there. So that has

24 to go into the mix here, your Honor.

25

THE COURT: Let me -- okay, go ahead. Go

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 34 of 44
34

1 ahead.

2

MR. SALTZMAN: I was going to add a couple of

3 things about the fees.

4

THE COURT: Please do.

5

MR. SALTZMAN: We also think we reached a fair

6 and reasonable fee agreement. You know, we recognize

7 that the case has been going on for several years.

8 There were two private law firms and three public

9 nonprofit organizations and people have spent a lot of

10 time on this. And, you know, taking that all into

11 account, um, plus what we know they have expended on

12 their experts, um, we think it's reasonable.

13

We did go through with counsel, as we are obliged

14 to do, line by line, looked at the billing records, um,

15 and they've done our offer.

16

We are very pleased with the fact that both

17 parties will pick up their expert fees going forward.

18 We think this is a benefit to the Commonwealth having

19 examined, um, what ongoing costs have been incurred in

20 settlements in other jurisdictions. So all together we

21 think, given the nature and breathe of this case, the

22 fees are very responsible from the Commonwealth's

23 perspective.

24

THE COURT: And let me ask you this. I'd like

25 to understand it better. And this is a matter of

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 35 of 44
35

1 legitimate public interest.

2

You said you're already seeing benefits from

3 having implemented these reforms that are now embedded

4 in the contract, right?

5

MR. SALTZMAN: Yes, your Honor.

6

THE COURT: So -- in fact, I'll stop.

7 Ms. White can talk to you, if she wants. You can tell

8 him what you want to tell him.

9

(Pause.)

10

MR. SALTZMAN: Okay. I did want to mention

11 that, um, we've seen the level of assaultiveness go

12 down, among this population, the industrial accidents of

13 officers, and the improvements in the population have

14 been presented by health services staff and clinicians

15 at national conferences. So the proof is in the

16 pudding, your Honor.

17

THE COURT: And how long have you been doing

18 this?

19

MR. SALTZMAN: Um, things have been

20 implemented over the period of the litigation. The

21 secured treatment program at Souza-Baranowski has been

22 in effect since -- well, at least three years. The

23 behavior management unit for over a year. The maximum

24 security residential treatment unit, um, probably over

25 two years.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 36 of 44
36

1

And it was necessary to do this, um,

2 sequentially. It is not possible to do everything at

3 once. And as you do things, it determines what you need

4 to do next. When we started this, and at the time we

5 had first broached settlement with the other side, um,

6 nobody was thinking about mental health classification,

7 which is one of our initiatives, nobody was thinking

8 about the conversion of an entire correctional facility

9 to become a mental health prison. Um, that's not part

10 of the agreement, but it certainly impacts it. And when

11 we looked at it, we're looking at improvement of mental

12 health overall and when you do that it certainly reduces

13 -- it certainly has an impact on the issues in this

14 case, which are segregation.

15

We didn't litigate this in a vacuum, we didn't,

16 um, narrowly improve our system, we did quite a bit,

17 your Honor, and we're very proud to say that we did it

18 with diminishing budgetary resources. And we're proud

19 that we did it with the full support of the

20 administration, the Executive Office of Safety and

21 Security, the Governor's Office, um, and the Executive

22 Office of Administrative & Finance. So we've come a

23 long way and we're very proud of it.

24

MR. FLEISCHNER: Your Honor, may I make just

25 one more point on the fees, which I neglected to make?

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 37 of 44
37

1 And that is on the reasonableness. The agreement on the

2 fees also includes our costs. So not all of that number

3 is going to the attorneys or the organizations. We had

4 three experts in this case, we did 45 days of tours, we

5 paid for dozens of depositions, um, we have travel

6 costs, all of which, if this had gone to trial and we

7 had been the prevailing party, we would have been

8 entitled to have reimbursed even the experts fees under

9 the ADA.

10

THE COURT: Well, let me say the following. I

11 regard this case as very important. And you made your

12 filings last Friday and I rearranged my schedule so I

13 can see you today, um, and I hoped I was going to write

14 something quite quickly, including over the weekend,

15 because I'm going to Washington on Monday on judicial

16 business and I'm going out of the country a week from

17 tomorrow on judicial business for a while. My law

18 clerk, who has helped me a lot on this, is away on a

19 family emergency, so I don't know when I'll see her

20 again.

21

Is there anything that you would do under the

22 agreement that's being delayed because you don't have

23 final approval from me, other than the payment of the

24 attorneys fees?

25

(Pause.)

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 38 of 44
38

1

MR. SALTZMAN: We need to post some new

2 positions, we need funding for the positions, the

3 funding is certainly contingent upon being able to

4 settle the case. Um, we need to move forward and having

5 the settlement approved would make it easier for us,

6 your Honor.

7

THE COURT: Because --

8

MR. FLEISCHNER: Your Honor, I have a

9 suggestion and this might be helpful. If this were a

10 class action, when the settlement was filed, the Court

11 would have to make a determination of whether to give

12 preliminary approval to the class action settlement and

13 then would approve it afterwards, perhaps a preliminary

14 approval. And I don't if that would be enough for the

15 Department. But it might be something that you can do

16 to --

17

THE COURT: No, I think -- I mean, I intend to

18 give this high priority and I actually had hoped to have

19 it done by the end of next week. I -- you know, as

20 Mr. Saltzman said, the way you've described it, I hope

21 what you've done will become a national monument. You

22 know, it's just -- you know, the way you've described

23 this process, and I've observed it or I did observe it

24 for a period of time before it went to the magistrate

25 judge when the original efforts to settle, arduous

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 39 of 44
39

1 efforts to settle fell short, um, you know, have been

2 impressive. They've manifested a shared concern about a

3 very serious problem, problems that are, in some

4 respects, issues of life and death.

5

It does have its legal complications and I'd like

6 to write something -- I would like to write something

7 that makes clear what the legal framework for doing this

8 is.

9

(Pause.)

10

THE COURT: I guess I'd say the following, if

11 it's of any help to you. And this is not final. I'll

12 have to write it and make sure it all connects and I'll

13 have to issue a written order.

14

But my present intention is to regard this as a

15 private settlement agreement in which the Court retains

16 jurisdiction. Recognize that the remedy will be the

17 reopening of the case, which contributes to the

18 conclusion that it is a private settlement agreement.

19 Note that I'm not -- I have not been asked to find and

20 I'm not finding that there has been any violation of a

21 federal right nor am I ordering any prospective relief,

22 and by approving the settlement, in my present

23 conception, I'm not entering any relief at all. I'm

24 essentially staying the litigation so the parties can

25 perform their agreement and reopen it, the litigation,

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 40 of 44
40

1 if there's an alleged breach by the defendants.

2

Since I'm not granting or approving any

3 prospective relief, the requirements of Section

4 3626(a)(1) do not apply. Therefore it's not necessary

5 or appropriate for me to find that the relief being

6 granted is narrowly tailored to only cure the violation

7 of a federal right. As I said, I haven't been asked to

8 make any such finding and I haven't made one.

9

The parties have clarified, in the last several

10 proceedings, in their submissions and again today, that

11 if this matter is reopened, in order to grant

12 prospective relief the Court will have to find not only

13 a violation of the agreement, but one that violates --

14 is sufficiently substantial to also violate a federal

15 right. So I view this, as I think I just said, as a

16 contract that in effect -- a settlement agreement that

17 in effect calls for a stay, an administrative closing of

18 the case and retention of jurisdiction, which the 19 Supreme Court in Kokkonen, among other courts, has

20 recognized is appropriate.

21

Other arrangements with some features

22 substantially similar to this have not been regarded as 23 consent decrees for PLRA purposes, Stickman, Bryant and 24 Davis, I think, are three such cases. You've heard me

25 question my authority to approve the settlement of which

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 41 of 44
41

1 the attorneys fees are an element, but my present 2 understanding is that, as Kokkonen explained, if I were

3 being asked to dismiss this case essentially subject to

4 retaining jurisdiction to reopen it if the settlement

5 agreement were allegedly violated, um, I could do that

6 on the terms and conditions I deem proper. This is the

7 functional equivalent of dismissing the case. And I

8 think it is proper before I decide to permit this

9 private settlement agreement and retain jurisdiction --

10 if I wasn't being asked to retain jurisdiction, then I

11 think the parties could do whatever they want, but

12 because I'm being asked to retain jurisdiction, I think

13 I have the authority and, under the circumstances of

14 this case, the obligation to decide whether this is a

15 fair resolution and a lawful resolution. And it's my

16 view on that -- and it's only the legal questions I have

17 a question about, but I believe this is fair,

18 reasonable, and lawful, but certainly fair and

19 reasonable.

20

This is a settlement that emerged from arm's-

21 length negotiations over many years, um, between

22 experienced, capable counsel, committed on both sides,

23 but not -- but sharing actually some common interests

24 and common interests in the welfare of inmates who are

25 seriously mentally ill. And this case could have

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 42 of 44
42

1 been -- but the plaintiffs' counsel, as I said, are

2 experienced, they've been industrious, they've had very

3 substantial discovery, so they're in a position to make

4 informed decisions, and they negotiated very hard and

5 well, particularly in the current fiscal climate, um, to

6 advance and protect the interests of the inmates they

7 represent. Certainly the Department of Corrections, um,

8 energetically and ably represented the interests of the

9 Commonwealth. Neither side sold out. But they did, as

10 I say, share a common concern for mentally ill people

11 who were in prison and, um, for the safety of those that

12 disturbed people in prison threaten, and it seems to me

13 that they've come up with a very reasonable result.

14

It does provide for the payment of -- well, what

15 to any layman or the general public might seem like very

16 substantial attorneys fees, over a million dollars, but

17 they're less than the plaintiffs would have been awarded

18 evidently if they won this case and charged the going

19 rate for their services. It's even a discount from a

20 very conservative calculation of what those fees would

21 be. And the settlement means that the possible exposure

22 of the Commonwealth to paying much higher attorneys fees

23 is ended. Now the money can go to taking care of the

24 inmates and paying for the experts who will monitor

25 this.

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 43 of 44
43

1

In the circumstances, the settlement is fair and

2 reasonable and at the moment I believe it's also lawful,

3 and the fees as an element of the settlement are lawful.

4

So it's my intention to write something that both

5 tests the legal analysis I just did, and memorialize it

6 and refine it, and enter an order consistent with it.

7 I'll get it done as soon as I can. It will be my goal

8 to have that entered, I would say, before April 1st. I

9 don't always meet my goals, but then I'll get my law

10 clerk back and be able to do it.

11

Is there anything further in this -- is there

12 anything further we ought to discuss?

13

MR. FLEISCHNER: I don't think so, your

14 Honor.

15

Also, I would just like to say that I think a

16 written opinion on this will be extraordinarily helpful

17 given the confusion in the body of law.

18

THE COURT: Yeah, I think so.

19

One thing would help is -- and you did it last

20 time. Will you order the transcript again, please?

21

MR. SALTZMAN: Yes, your Honor.

22

THE COURT: Okay. And I'm going to ask the

23 able stenographer to prepare the transcript as quickly

24 as possible. It's going to be about 40 pages. Ideally

25 before next Wednesday. But he and I will talk about

Case 1:07-cv-10463-MLW Document 259 Filed 03/12/12 Page 44 of 44
44

1 that. He's doing 7 weeks of DiMasi still, I think. 7

2 weeks and several months before that.

3

All right. The Court is in recess.

4

(Ends, 3:00 p.m.)

5

6

C E R T I F I C A T E

7

8

I, RICHARD H. ROMANOW, OFFICIAL COURT REPORTER,

9 do hereby certify that the foregoing record is a true

10 and accurate transcription of my stenographic notes,

11 before Chief Judge Mark L. Wolf, on Friday, March 9,

12 2012, to the best of my skill and ability.

13

14

15 /s/ Richard H. Romanow 03-12-12 __________________________
16 RICHARD H. ROMANOW Date

17

18

19

20

21

22

23

24

25

 
 Case 1:07-cv-10463-MLW Document 265 Filed 05/20/15 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DISABILITY LAW CENTER, INC., Plaintiff,
v.
MASSACHUSETTS DEPARTMENT OF CORRECTION, et. al.,
Defendants.

)

)

)

)

) ) )

CIVIL ACTION NO. 07-10463 (MLW)

)

)

)

)

)

)

)

)

)

STIPULATION OF DISMISSAL The parties, by their respective counsel, submit this Stipulation of Dismissal pursuant to Fed.R.Civ.P. 41(a)(ii). The parties state the following: On April 12, 2012, the Court issued a Memorandum and Order (Docket No. 260) allowing the parties’ Joint Motion to Approve the Settlement Agreement (Docket No. 248), staying this action, retaining jurisdiction, and providing for the dismissal of this action three years after the date of its Order. On the same date, the Court ordered this action administratively closed (Docket No. 261). Section VIII(B) of the Settlement Agreement provides for termination of the Court’s jurisdiction at the end of the three year settlement period with respect to any provision or provisions for which there has been no outstanding determination that the Department of Correction is not in substantial compliance. As such determination has

Case 1:07-cv-10463-MLW Document 265 Filed 05/20/15 Page 2 of 4 2
been neither requested nor entered, the three year term of the Settlement Agreement and the jurisdiction of the Court terminated on April 13, 2015.
Dated: May 20, 2015
Respectfully submitted,

The Disability Law Center, By Its Attorneys,

The Defendants, By Their Attorneys,

/s/ Richard M. Glassman Richard M. Glassman BBO #544381 DISABILITY LAW CENTER, INC. 11 Beacon Street, Suite 925 Boston, Massachusetts 02108 (617) 723-8455 rglassman@dlc-ma.org
/s/ Nancy Jane Murphy Nancy Jane Murphy BBO #663749 nmurphy@dlc-ma.org DISABILITY LAW CENTER, INC. 11 Beacon Street, Suite 925 Boston, Massachusetts 02108 (617) 723-8455 nmurphy@dlc-ma.org
/s/ Carol E. Head Carol E. Head BBO #652170 MORGAN LEWIS One Federal Street Boston, Massachusetts 02110-1726 (617) 951-8000 carol.head@morgan.lewis.com

Nancy Ankers White Special Assistant Attorney General
/s/ William D. Saltzman William D. Saltzman BBO # 439749 Massachusetts Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 1154 william.saltzman@massmail.state.ma.us
/s/ Charles W. Anderson, Jr. Charles W. Anderson Jr. BBO # 635016 Massachusetts Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 1161 charles.anderson@massmail.state.ma.us
/s/ Sheryl F. Grant Sheryl F. Grant BBO # 647071 Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, Massachusetts 02110 (617) 727-3300, Ext. 1140 sheryl.grant@massmail.state.ma.us

Case 1:07-cv-10463-MLW Document 265 Filed 05/20/15 Page 3 of 4
3
/s/ James Pingeon James Pingeon BBO #541852 PRISONERS’ LEGAL SERVICES, INC. 10 Winthrop Square Boston, Massachusetts 02110 (617) 482-2773 jpingeon@plsma.org
/s/ Leslie Walker Leslie Walker BBO #546627 PRISONERS’ LEGAL SERVICES, INC. 10 Winthrop Square Boston, Massachusetts 02110 (617) 482-2773 lwalker@plsma.org
/s/ Bonita Tenneriello Bonita Tenneriello BBO #662132 PRISONERS’ LEGAL SERVICES, INC. 10 Winthrop Square Boston, Massachusetts 02110 (617) 482-2773 btenneriello@plsma.org
/s/ Robert Fleischner Robert Fleischner BBO #171320 CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, Massachusetts 01060 (413) 587-6265 rfleischner@cpr-ma.org

Case 1:07-cv-10463-MLW Document 265 Filed 05/20/15 Page 4 of 4
4
/s/ James S. Rollins James S. Rollins admitted pro hac vice NELSON, MULLINS, RILEY & SCARBOROUGH LLP One Post Office Square, 30th Floor Boston, Massachusetts 02109-2127 (617) 573-4722 james.rollins@nelsonmullins.com

CERTIFICATE OF SERVICE

I, William D. Saltzman, counsel for the Defendants, hereby certify that I did serve this document through the Court’s electronic filing system (ECF) upon all persons so registered.

Dated: May 20, 2015

/s/ William D. Saltzman William D. Saltzman

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DISABILITY LAW CENTER, Plaintiff,

v.
MASSACHUSETTS DEPARTMENT OF CORRECTION, ET AL.,
Defendants.

C.A. No. 07-10463-MLW

MEMORANDUM AND ORDER

WOLF, D.J.

March 17, 2017

On May 20, 2015, plaintiff Disability Law Center (the "DLC"), and defendants, Massachusetts Department of Correction and certain DOC officials (together, the "DOC"), stipulated to the dismissal of this action under Federal Rule of Civil Procedure 41 (a) (1) (A) (ii), pursuant to a settlement agreement approved by the court on April 12, 2012. See Docket No. 265; Disability Law Center v. Massachusetts Department of Correction, 960 F. Supp. 2d 271, 286 (D. Mass. April 12, 2012). On June 28, 2016, Robert Aldrich, a prisoner at the Massachusetts Correctional Institution at Shirley, acting pro se, filed motions to reopen the case and to intervene. As grounds, Aldrich argues that the defendants "violated the settlement agreement, and continue[] to violate the agreement by forcing mentally ill prisoners into solitary confinement, in violation of the 8th Amendment to the United States [Constitution]." Docket No. 266. He states that he has standing as

a "class party plaintiff" to enforce that agreement. Id. He subsequently filed related motions for an evidentiary hearing, for a writ of Habeas Corpus to allow him to at tend the requested hearing, to amend his complaint with a statement alleging that the court has federal question jurisdiction over his claim, for a procedural order setting deadlines, for discovery, and to appoint counsel to represent him.
For the reasons explained below, Aldrich's motions are being denied. In essence, as this case was not a class action, Aldrich was not a party to it. Moreover, as requested by the parties, this case was dismissed in 2015. Therefore, the court lacks jurisdiction to grant the requested relief even to a party.
The DLC is a non-profit Massachusetts association that brought suit pursuant to its authority, under federal law, to "pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment" in Massachusetts, including Massachusetts prisoners. See 42 U.S.C. §§10802, 10805; Docket No. 1 at ~1. DLC sued the DOC and several DOC officials on behalf of mentally ill prisoners in the state, alleging that the DOC •s practices for placing mentally ill prisoners in segregated confinement violated the United States Constitution. The complaint referenced a series of prisoners identified by their initials. However, unlike in a class action brought under Federal Rule of
2

Civil Procedure Rule 23, the individual prisoners were not made parties to the action. Accordingly, the DLC had no authority to waive any individual prisoner's claims against the DOC or its officials, see Docket No. 32 at 4-5, and the settlement agreement only bound the DLC and the DOC, see Docket No. 252-1 at 19. Therefore, the agreement did not preclude prisoners from pursuing any their own claims in a separate action.
On April 12, 2012, the court approved the settlement agreement under which the DOC agreed to implement a series of procedures designed to integrate mental health screening and services into the prison disciplinary process and, when appropriate, to provide alternatives to segregated confinement for inmates with serious mental illnesses. See Disability Law Center, 960 F. Supp. 2d at 277. While a court does not ordinarily review and approve settlement agreements between private parties, the court found that review in this case was appropriate because DLC represented members of the public, in particular individuals with serious mental illnesses, who were not parties to the case. Id. at 274.
In approving the agreement, the court did not issue any prospective relief. Id. at 274-75, 282-83. Rather, it established a process to resolve any disputes concerning the DOC's compliance with the settlement agreement and stayed the case. Id. at 277, 285. The court ordered that the case would be dismissed three years from April 12, 2012 unless otherwise ordered. Id. at 286; see also
3

Fed. R. Civ. P. 41{a) {2) {authorizing the court to dismiss an action at the plaintiff's request "on terms the court considers proper"). Pursuant to the April 12, 2012 Order, the court's jurisdiction terminated on April 13, 2015. The parties subsequently stipulated to this case's dismissal under Rule 41(a) (1) (A) (ii), which authorizes the voluntary dismissal of a lawsuit through the filing of "a stipulation of dismissal signed by all parties who have appeared in the action." See Docket No. 265.
More than a year later, on June 28, 2016, Aldrich filed his motion to intervene and reopen the case. On July 14 and 15, 2016, he filed a series of related motions. Federal Rule of Civil Procedure 24 (a) states that "upon timely motion," a party may intervene as a matter of right when, among other things, "the disposition of the action may as a practical matter impair or impede the applicant's ability to protect an interest relating to the property or transaction involved in the case." When a party has no right to intervene, the court may, as an exercise of discretion, permit him to do so when his "claim or defense and the main action have a question of law or fact in common." Fed. R. Civ. P. 24(b).
Aldrich's motion to intervene, however, was not timely. First, the court no longer has jurisdiction to grant the relief Aldrich seeks. After dismissing a case pursuant to a settlement agreement, the court may retain supplemental jurisdiction for a
4

period of time to monitor or enforce the agreement. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 381-82 (1994). However, to retain such jurisdiction, the court must do so explicitly and with the parties' mutual assent. See Municipality of San Juan v. Rullan, 318 F. 3d 26, 30-31 (1st Cir. 2003); Lipman v. Dye, 294 F. 3d 17, 20 (1st Cir. 2002). Here, the parties agreed that pursuant to the April 12, 2012 Order, "the jurisdiction of the Court terminated on April 13, 2015," and stipulated to dismissal, under Rule 41(a) (1) (A) (ii), on May 20, 2015. Docket No. 265 at 2. The court did not extend jurisdiction beyond either of those dates. Therefore, the court now lacks jurisdiction to enforce the settlement agreement. Accordingly, Aldrich's motions must be denied. See Mutual Produce, Inc. v. Penn. Central Trans. Co., 119 F. R. D. 619, 621 (D. Mass. 1988).
Moreover, Aldrich lacks standing to seek to reopen the case because he was not a party to it. More specifically, "one who was not a party" or its legal representative "lacks standing to make the motion [for relief from a judgment under Federal Rule of Civil Procedure 60 (b)]." 11 Charles Alan Wright, et al., Fed. Prac. & Proc. Civ. §2865 (3d ed.); see also National Acceptance Co. of America Inc. v. Frigidmeats, Inc., 627 F. 2d 764, 766 (7th Cir. 1980).
Because this case was dismissed, the court did not retain jurisdiction to enforce the settlement agreement, and the original
5

parties have not moved to reopen the case, "there is no action in which [Aldrich may] intervene." Mutual Produce, 119 F. R. D. at 621. To the extent that Aldrich seeks to raise personal claims alleging that the DOC or its officials violated the Eighth Amendment by placing him in solitary confinement, he must present them in a separate action. Because this case was not a class action, the April 12, 2012 Order and the subsequent stipulation of dismissal do not preclude him from doing so. See Docket Nos. 266, 274.
As the court lacks jurisdiction and Aldrich lacks standing, his motions for an evidentiary hearing, for a writ of Habeas Corpus, for leave to file an amended complaint, to issue a new procedural order, for discovery, and to appoint counsel must also be denied.
Therefore, in view of the foregoing, it is hereby ORDERED that:
1. Aldrich's Motion to Reopen Case (Docket No. 266} is DENIED.
2. The Motion to Intervene (Docket No. 267) is DENIED. 3. The Motion for Hearing (Docket No. 272} is DENIED. 4. The Motion for a Writ of Habeas Corpus ad Testificandum is DENIED. 5. The Motion for Leave to File an Amended Complaint (Docket No. 274) is DENIED.
6

6. The Motion for a New Procedural Order (Docket No. 275} is DENIED.
7. The Motion Requesting Court Order for Both Parties to Provide Discovery (Docket No. 276} is DENIED.
8. The Motion to Appoint Counsel (Docket No. 277} is DENIED.
~UNTATED·~TAOTES~DISTR< ICT ~ JUDGE~~
7

 
 	  
Disability	  Law	  Center,	  Inc.	  vs	  Massachusetts	  Department	  of	  Correction,	  et	  al.	   Civil	  Action	  No.	  07-­‐10463	  (MLW)	   	   Fifth	  Report	  of	  Designated	  Expert	  Kathryn	  A.	  Burns,	  MD,	  MPH	   	   Dates	  of	  Site	  Visit:	  	  November	  3-­‐4,	  2014	   Date	  of	  Report:	  	  December	  2,	  2014	   	   Sites	  visited:	   MCI-­‐Cedar	  Junction	  (MCI-­‐CJ)	  
• Departmental	  Disciplinary	  Unit	  (DDU)	   • Special	  Management	  Unit	  –	  10	  Block	  (SMU)	  
Additional	  Information	  reviewed:	  
• Data	  submission	  required	  in	  Settlement	  Agreement	   • Medical	  Records	  of	  selected	  inmates	   • Response	  to	  4th	  report	   • Supplemental	  reviews	  	  
Concerns	  were	  raised	  and	  recommendations	  offered	  on	  site	  during	  the	  exit	  interview.	  	  Additional	   summary	  detail	  is	  provided	  here.	  	  A	  synopsis	  of	  the	  inmate	  interviews	  is	  attached.	  
	   MCI-­‐Cedar	  Junction	   	   MCI-­‐Cedar	  Junction	  was	  toured	  on	  November	  3-­‐4,	  2014.	  	  As	  in	  past	  visits,	  interviews	  with	  individual	   inmates	  were	  held	  with	  prisoners	  in	  DDU	  and	  SMU.	  	  The	  BMU	  was	  not	  visited	  this	  tour.	  	   	   In	   the	   interim	   between	   site	   visits,	   MPCH	   conducted	   an	   analysis	   of	   the	   location	   in	   which	   mental	   health	   contacts	   occur	   (i.e.,	   cell	   front	   vs.	   out	   of	   cell)	   in	   the	   DDU	   and	   plan	   to	   continue	   to	   monitor	   it	   regularly.	  	   Additionally,	   inmates	   were	   given	   a	   survey	   asking	   them	   about	   the	   reasons	   they	   refuse	   out	   of	   cell	   contacts.	   	   MPCH	   should	   also	   analyze	   why	   clinicians	   are	   not	   complying	   with	   the	   provision	   of	   the	   settlement	   agreement	   requiring	   documentation	   in	   a	   progress	   note	   of	   all	   attempts	   made	   to	   engage	   the	   inmate	  in	  a	  private	  interview.
MPCH	  also	  reported	  reinforcing	  the	  importance	  of	  rounds	  in	  segregation	  and	  implemented	  a	  procedure	   in	  which	  rounds	  are	  observed	  by	  the	  Mental	  Health	  Director,	  or	  designee,	  on	  a	  monthly	  basis	  to	   enhancing	  clinical	  supervision	  and	  provide	  feedback	  to	  the	  rounding	  clinicians.	  	  Both	  of	  these	  actions	  are	   important	  quality	  improvement	  activities	  and	  should	  yield	  important	  clinical	  information	  upon	  which	   more	  reliable/accurate	  assessments	  of	  inmates’	  functional	  capacities	  can	  be	  made	  as	  well	  as	  improve	   inmate	  engagement	  in	  treatment	  activities.	  	  It	  will	  take	  some	  time	  however,	  for	  these	  important	  steps	  to	   actually	  bear	  the	  intended	  positive	  results.	   	   Extensive	  clinical	  reviews	  were	  conducted	  on	  a	  number	  of	  inmates	  identified	  as	  potentially	  seriously	   mentally	  ill	  during	  the	  last	  site	  visit	  by	  MHM	  Clinical	  Operations,	  primarily,	  Dr.	  John	  Wilson.	  	  In	  addition	   to	  Dr.	  Wilson’s	  review	  and	  examination,	  Dr.	  Mays	  conducted	  some	  supplemental	  telepsychiatry	  
1	   DLC	  v	  DOC	  Settlement	  Agreement	  
Designated	  Expert	  Report	  #5	   	  

	  

interviews.	  	  Thereafter,	  there	  was	  documentation	  in	  many	  of	  the	  inmate	  charts	  that	  a	  large	  case	  

conference	  meeting	  was	  held	  between	  Clinical	  Operations	  and	  on-­‐site	  clinicians	  to	  discuss	  the	  case	  and	  

findings.	  	  Since	  these	  activities	  were	  completed	  relatively	  recently,	  it	  was	  not	  yet	  apparent	  how	  or	  

whether	  the	  results	  of	  the	  extensive	  reviews	  will	  be	  incorporated	  into	  the	  subsequent	  treatment	  and	  

treatment	  plans	  of	  all	  of	  the	  reviewed	  inmates.	  	  (See	  for	  example,	  

	  &	  

)	  	  

In	  other	  cases,	  recommendations	  for	  psychological	  testing	  had	  been	  acted	  upon	  and	  referrals	  made.	  

	  

Unfortunately,	  inmate	  

	  committed	  suicide	  9/4/14.	  	  A	  comprehensive	  review	  of	  this	  death	  

is	  not	  possible	  because	  the	  chart	  was	  not	  available	  to	  me.	  	  However,	  MPCH	  reviewed	  the	  case	  as	  did	  

MHM	  Clinical	  Operations.	  	  There	  are	  some	  discrepancies	  between	  those	  reviews,	  which	  I	  will	  not	  detail	  

as	  beyond	  the	  scope	  of	  this	  report.	  	  Briefly,	  though	  a	  number	  of	  previously	  identified	  concerns	  are	  

apparent:	  	  Mr.	   	  was	  not	  seen	  outside	  of	  his	  cell	  in	  the	  period	  of	  time	  between	  medication	  

discontinuation	  and	  his	  suicide;	  medications	  were	  discontinued	  without	  face-­‐to-­‐face	  contact	  by	  the	  

prescriber;	  all	  outside	  treatment	  records	  were	  not	  received/reviewed	  (unknown	  as	  to	  whether	  they	  

were	  requested);	  and	   ’s	  treatment	  and	  diagnostic	  history	  within	  MDOC	  and	  the	  House	  of	  Correction	  

were	  re-­‐interpreted	  as	  related	  to	  substance	  abuse	  and	  not	  SMI	  with	  virtually	  no	  additional	  data	  points	  

except	  brief	  cell	  front	  contacts	  upon	  which	  to	  make	  this	  sweeping	  diagnostic	  reclassification.	  	  

	  

	  

Assessment:	  

	  

I	  continue	  to	  believe	  that	  a	  number	  of	  problems	  exist	  which	  are	  not	  simply	  matters	  of	  differing	  clinical	  

judgment:	  

	  

1. Lack	  of	  out	  of	  cell	  contact.	  	  All	  parties	  agree	  that	  cell	  front	  visits	  are	  not	  treatment	  and	  steps	   have	  been	  taken	  to	  monitor	  and	  potentially	  address	  this	  issue.	  	  Nevertheless,	  the	  issue	  persists	   and	  the	  data	  being	  gleaned	  from	  these	  types	  of	  contacts	  is	  being	  used	  as	  the	  basis	  upon	  which	   to	  arrive	  at	  diagnoses	  and	  re-­‐interpret	  past	  diagnoses.	  	  	  There	  were	  instances	  in	  the	  records	  in	   which	  the	  monthly	  contact	  was	  at	  the	  cell	  front	  and	  lasted	  two	  minutes	  though	  the	  progress	   note	  detailed	  findings	  about	  orientation,	  thought	  form	  and	  organization,	  affect	  range	  and	   reactivity	  and	  other	  components	  of	  a	  mental	  status	  examination.	  	  Brief	  cell	  front	  contacts	  simply	   do	  not	  permit	  appropriately	  detailed	  and	  accurate	  functional	  assessment.	  	  	  To	  use	  them	  as	  the	   sole	  basis	  upon	  which	  to	  reinterpret	  past	  internal	  and	  external	  diagnoses	  is	  reckless.	  	  

	  

2. Request	  and	  then	  review	  of	  outside	  treatment	  records	  is	  not	  clearly	  documented.	  	  The	  

information	  is	  important	  to	  gain	  a	  longitudinal	  view	  of	  the	  inmate	  patient’s	  illness	  and	  course.	  	  

(See	   	  above	  and	  

)	  

	  

3. Inmates	  with	  “minor”	  diagnoses	  sometimes	  require	  two	  or	  more	  medications	  in	  the	  same	  class	   for	  treatment-­‐resistant	  symptoms.	  	  It	  is	  not	  illogical	  or	  irrational	  to	  conclude	  that	  the	  illness	  is	   more	  severe	  than	  labeled	  since	  augmentation	  or	  supplementation	  is	  generally	  not	  pursued	   unless	  there	  is	  a	  clinical	  reason	  to	  do	  so.	  	  This	  should	  continue	  to	  be	  a	  “red	  flag”	  to	  MPCH:	  	   Either	  the	  doctors	  are	  not	  prescribing	  according	  to	  currently	  accepted	  clinical	  practice	  guidelines	  

2	   DLC	  v	  DOC	  Settlement	  Agreement	  
Designated	  Expert	  Report	  #5	   	  

	   which	  is	  a	  problem;	  OR	  the	  inmates	  are	  very	  sick	  but	  it	  is	  not	  being	  acknowledged	  diagnostically	   –	  either	  categorically	  or	  via	  an	  accurate	  and	  thorough	  functional	  assessment.	  	  Other	  medication	   practices	  are	  also	  concerning:	  	  Continued	  use	  of	  low	  dose	  (or	  larger	  doses)	  of	  antipsychotic	   medications	  without	  clinical	  justification.	  	  Psychotropic	  medications	  discontinued	  WITHOUT	  a	   face	  to	  face	  examination	  of	  the	  inmate;	  no	  medication	  counseling	  or	  education;	  no	  compliance	   monitoring;	  no	  discussion	  of	  considering	  seeking	  involuntary	  treatment	  order.	  
	   Finally,	  I	  feel	  compelled	  to	  address	  the	  Mr.	  Saltzman’s	  allegation	  that	  my	  suggestion	  to	  review	   discontinuation	  of	  treatment	  and	  subsequent	  behavioral	  issues	  was	  in	  any	  way	  implying	  that	  a	  “criminal	   responsibility”	  concept	  be	  injected	  into	  the	  prison	  disciplinary	  process.	  	  Frankly,	  this	  is	  the	  type	  of	   hyperbolic	  thinking	  that	  has	  permeated	  MDOC’s	  responses	  to	  site	  visit	  findings	  and	  sabotaged	  attempts	   to	  approach	  issues	  in	  a	  consultative	  and	  collegial	  fashion.	  	  There	  has	  never	  been	  the	  scintilla	  of	   suggestion	  advocating	  insertion	  of	  a	  criminal	  responsibility	  concept	  into	  the	  MDOC	  disciplinary	  process.	  	  	   However,	  several	  cases	  have	  been	  identified	  in	  which	  mental	  health	  treatment	  was	  discontinued,	   perhaps	  with	  the	  best	  of	  intentions	  and	  then,	  nevertheless,	  inappropriate	  behaviors	  emerged	  and	  the	   inmate	  faced	  segregation	  and	  potential	  DDU	  placement.	  	  This	  certainly	  has	  implications	  for	  CLINICAL	   policy	  makers	  and	  continuous	  quality	  improvement	  activities	  and	  offered	  in	  that	  vein.	  	  	  	   	   	  	  	   	  
3	   DLC	  v	  DOC	  Settlement	  Agreement	  
Designated	  Expert	  Report	  #5	   	  

 
  
  
 Disability	  Law	  Center,	  Inc.	  vs	  Massachusetts	  Department	  of	  Correction,	  et	  al.	   Civil	  Action	  No.	  07-­‐10463	  (MLW)	   	   Second	  Report	  of	  Designated	  Expert	  Kathryn	  A.	  Burns,	  MD,	  MPH	   	   Dates	  of	  Site	  Visit:	  	  February	  21-­‐22,	  2013	   Date	  of	  Report:	  	  April	  3,	  2013	   	   Sites	  visited:	   MCI-­‐Cedar	  Junction	  (MCI-­‐CJ)	  
• Departmental	  Disciplinary	  Unit	  (DDU)	   • Special	  Management	  Unit	  –	  10	  Block,	  segregation	   • Behavioral	  Management	  Unit	  (BMU)	  
Old	  Colony	  Correctional	  Center	  (OCCC)	  
• Residential	  Treatment	  Unit	   • Segregation	  
MCI-­‐Cedar	  Junction	   MCI-­‐Cedar	  Junction	  was	  visited	  on	  February	  21,	  2013.	  	  Interviews	  with	  individual	  inmates	  were	   conducted	  with	  prisoners	  housed	  in	  the	  DDU,	  Special	  Management	  Unit	  (SMU)	  and	  Behavioral	   Management	  Unit	  (BMU.)	  	  Medical	  records	  of	  the	  DDU	  inmates	  were	  reviewed.	   	   One	  inmate	  awaiting	  out-­‐of-­‐state	  transfer	  has	  been	  maintained	  in	  SMU	  at	  MCI-­‐CJ	  for	  440	  days.	  	  He	  is	   classified	  as	  MH-­‐3	  A,B,D	  and	  designated	  as	  SMI.	  	  Some	  accommodation	  has	  been	  made	  for	  him.	  	  For	   example,	  he	  has	  been	  permitted	  use	  of	  a	  television	  in	  his	  cell.	  	  He	  is	  seen	  weekly	  out-­‐of-­‐cell	  by	  his	   clinician.	  	  He	  cannot	  go	  to	  outdoor	  recreation	  due	  to	  an	  eye/vision	  condition.	  	  Indoor	  recreation	  is	  not	   available	  in	  SMU.	  	  	  (The	  inmate	  also	  reported	  that	  the	  psychiatrist	  prays	  with	  him	  during	  his	  medication	   management	  appointments.)	  	  He	  reported	  transient	  thoughts	  of	  suicide	  at	  times,	  a	  return	  of	  some	   auditory	  hallucinations	  that	  it	  was	  “getting	  really	  tough	  to	  be	  in	  that	  cell	  all	  day	  and	  night.”	  	  Although	   this	  inmate	  is	  not	  classified	  as	  MH-­‐4,	  he	  is	  designated	  as	  SMI	  and	  in	  prolonged	  and	  indefinite	  segregation	   pending	  out-­‐of-­‐state	  transfer.	  	  	  A	  recommendation	  was	  made	  on	  site	  for	  the	  prison	  administrators	  and	   mental	  health	  staff	  to	  consider	  additional	  accommodation	  for	  more	  out-­‐of-­‐cell	  time,	  including	  access	  to	   some	  form	  of	  indoor	  recreation.	  	  (Additionally,	  assurances	  were	  provided	  that	  the	  issue	  of	  the	  praying	   psychiatrist	  is	  being	  addressed	  by	  MHM.)	   	   Programming	  in	  the	  BMU	  as	  documented	  in	  the	  medical	  records	  and	  reported	  by	  the	  inmates	  does	  not	   support	  that	  current	  programming	  is	  based	  on	  evidence-­‐based	  practices	  or	  best	  clinical	  practice	  models.	  	   While	  it	  is	  understood	  that	  such	  practices	  are	  not	  strictly	  “required”	  by	  the	  terms	  of	  the	  Settlement	   Agreement,	  use	  of	  EBP	  in	  the	  community	  has	  increasingly	  become	  the	  standard	  of	  care	  and	  could	  assist	   in	  measuring	  clinically	  specific	  and	  relevant	  outcomes	  in	  addition	  to	  the	  current	  metrics	  measured	  (use	   of	  force,	  assaults,	  suicide	  precautions,	  psychiatric	  hospitalization	  and	  disciplinary	  reports.)	  	  This	   recommendation	  was	  also	  discussed	  at	  the	  exit	  interview.	   	   The	  inmate	  rosters	  provided	  reflect	  a	  very	  high	  prevalence	  of	  the	  use	  of	  the	  “Not	  Otherwise	  Specified”	   (NOS)	  diagnostic	  designation.	  	  Documentation	  to	  explain	  or	  support	  the	  use	  of	  the	  NOS	  specifier	  was	  not	  
1	   DLC	  v	  DOC	  Settlement	  Agreement	  
Designated	  Expert	  Report	  #2	   	  

apparent	  in	  the	  files	  reviewed.∗	  Diagnostic	  specificity	  is	  important	  for	  mental	  health	  classification,	  SMI	   designation	  and	  treatment	  interventions.	  	  The	  very	  high	  prevalence	  (37.5-­‐62%)	  is	  atypical	  and	  perhaps	   best	  addressed	  through	  a	  robust	  quality	  improvement/psychiatric	  peer	  review	  process.	  	  (MHM	  reported	   that	  currently,	  psychiatric	  peer	  review	  is	  conducted	  only	  once	  annually.)	  	  	  It	  is	  again	  understood	  that	  the	   Settlement	  Agreement	  is	  silent	  on	  the	  topic	  of	  peer	  review,	  but	  diagnostic	  accuracy	  has	  direct	  bearing	   on	  the	  terms	  and	  conditions	  of	  the	  agreement.	  	  	   	   One	  additional	  caution	  regarding	  the	  use	  of	  psychological	  tests	  for	  diagnostic	  clarification	  that	  are	   culturally,	  linguistically	  and	  educationally	  appropriate	  for	  the	  population	  tested	  was	  also	  discussed	  at	   the	  exit	  interview.	   	   Old	  Colony	  Correctional	  Center	  (OCCC)	   OCCC	  was	  visited	  on	  February	  22,	  2013.	  	  We	  were	  provided	  a	  brief	  tour	  of	  the	  institution	  including	  the	   Residential	  Treatment	  Unit.	  	  Individual	  interviews	  with	  inmates	  housed	  in	  the	  segregation	  unit	  were	   conducted.	  	  In	  addition,	  medical	  records	  were	  reviewed	  for	  some	  of	  the	  inmates	  interviewed.	   	   The	  same	  observations	  regarding	  the	  very	  high	  prevalence	  of	  NOS	  diagnoses	  without	  supporting	   documentation	  of	  the	  rationale	  were	  made	  of	  the	  inmates	  interviewed	  and	  listed	  on	  the	  segregation	   roster.	   	   Assessment:	  	  With	  the	  exception	  of	  the	  inmate	  held	  for	  440	  days,	  the	  Department’s	  documentation	   demonstrates	  compliance	  with	  the	  terms	  of	  the	  Settlement	  Agreement	  with	  respect	  to	  screening;	   providing	  out-­‐of-­‐cell	  treatment	  opportunities	  to	  inmates,	  both	  individual	  and	  group	  activities;	  and	   providing	  supplemental	  mental	  health	  services	  for	  inmates	  confined	  to	  segregation.	   	   Recommendations	  were	  offered	  on	  site	  during	  the	  exit	  interview	  and	  have	  been	  summarized	  in	  this	   document.	  	  A	  synopsis	  of	  the	  inmate	  interviews	  is	  attached.	   	   	   	  
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
∗	  DSM-­‐IV	  specifies	  four	  situations	  in	  which	  an	  NOS	  diagnosis	  may	  be	  appropriate:	  the	  symptomatic	  picture	  does	  not	  
meet	  criteria	  for	  any	  specific	  disorder,	  the	  symptom	  pattern	  is	  not	  currently	  recognized	  as	  a	  specific	  disorder,	  
uncertainty	  about	  etiology	  or	  insufficient	  opportunity	  to	  complete	  data	  collection.	  	  	  
2	   DLC	  v	  DOC	  Settlement	  Agreement	  
Designated	  Expert	  Report	  #2	   	  

 
 Disability	  Law	  Center,	  Inc.	  vs	  Massachusetts	  Department	  of	  Correction,	  et	  al.	   Civil	  Action	  No.	  07-­‐10463	  (MLW)	   	   Fourth	  Report	  of	  Designated	  Expert	  Kathryn	  A.	  Burns,	  MD,	  MPH	   	   Dates	  of	  Site	  Visit:	  	  June	  9-­‐10,	  2014	   Date	  of	  Report:	  	  July	  11,	  2014	   	   Sites	  visited:	   MCI-­‐Cedar	  Junction	  (MCI-­‐CJ)	  
• Departmental	  Disciplinary	  Unit	  (DDU)	   • Special	  Management	  Unit	  –	  10	  Block	   • Behavioral	  Management	  Unit	  (BMU)	  
Souza	  Baranowski	  Correctional	  Center	  (SBCC)	  
• Special	  Management	  Unit	   • Secure	  Treatment	  Program	  (STP)	  
Additional	  Information	  reviewed:	  
• Data	  submission	  required	  in	  Settlement	  Agreement	   • Medical	  Records	  of	  selected	  inmates	  
Concerns	  were	  raised	  and	  recommendations	  offered	  on	  site	  during	  the	  exit	  interview.	  	  Additional	   summary	  detail	  is	  provided	  here.	  	  A	  synopsis	  of	  the	  inmate	  interviews	  is	  attached.	  
	   MCI-­‐Cedar	  Junction	   	   MCI-­‐Cedar	  Junction	  was	  toured	  on	  June	  9,	  2014.	  	  As	  in	  past	  visits,	  interviews	  with	  individual	  inmates	   were	  held	  with	  prisoners	  in	  DDU	  and	  SMU.	  	  BMU	  inmates	  were	  interviewed	  in	  a	  group	  setting	  but	  one	   prisoner	  was	  in	  a	  holding	  cell	  alone	  and	  another	  was	  spoken	  to	  briefly	  at	  cell	  front	  in	  the	   “accountability”	  cell.	  	   	   The	  previously	  identified	  concern	  regarding	  the	  failure	  to	  identify	  inmates	  as	  SMI	  persists.	  	  This	  impacts	   access	  to	  care.	  	  There	  also	  appeared	  to	  be	  an	  increase	  in	  the	  number	  of	  cell	  front	  visits	  for	  mental	  health	   contacts	  in	  the	  DDU	  than	  on	  prior	  occasions.	  	  A	  recommendation	  was	  made	  to	  conduct	  a	  quality	   improvement	  study	  regarding	  the	  location	  of	  mental	  health	  contacts	  in	  the	  DDU	  to	  determine	  whether	   or	  not	  the	  observation	  is	  substantiated	  by	  data.	  	  This	  will	  also	  permit	  the	  institution	  to	  monitor	  the	  issue	   and	  identify	  any	  trends	  or	  patterns	  that	  can	  be	  addressed/corrected.	  	  (Cell	  front	  visits	  are	  not	  regarded	   as	  appropriate	  treatment	  because	  they	  are	  not	  confidential.)	  	  	   	   Mental	  health	  rounds	  were	  observed	  during	  the	  site	  visit	  and	  were	  quite	  cursory	  and	  could	  serve	  no	  sort	   of	  surveillance	  function	  when	  conducted	  in	  this	  fashion.	  	  Perhaps	  the	  observed	  rounds	  were	  atypical	  but	   they	  certainly	  matched	  inmate	  descriptions	  of	  them	  as	  “drive-­‐by”	  in	  nature.	  	  In	  any	  event,	  because	  
1	   DLC	  v	  DOC	  Settlement	  Agreement	  
Designated	  Expert	  Report	  #4	   	  

MPCH	  considers	  rounds	  to	  be	  such	  a	  key	  element	  in	  identifying	  signs	  of	  SMI	  deterioration	  in	  segregation,	  

an	  additional	  recommendation	  for	  some	  clinical	  supervision	  of	  this	  important	  activity	  is	  offered	  here.	  

	  

Souza	  Baranowski	  Correctional	  Center	  (SBCC)	  

	  

SBCC	  was	  visited	  on	  June	  10,	  2014.	  	  Group	  interviews	  were	  conducted	  with	  inmates	  in	  the	  STP	  and	  

individual	  interviews	  were	  conducted	  with	  three	  SMU	  inmates.	  	  Time	  did	  not	  permit	  a	  thorough	  review	  

of	  the	  medical	  records.	  

	  

The	  STP	  (and	  to	  a	  lesser	  extent	  BMU)	  group	  treatment	  interventions	  pose	  significant	  challenges	  to	  

mental	  health	  staff	  due	  to	  the	  “mixed”	  nature	  of	  the	  populations	  –	  relatively	  “new”	  admissions	  mixed	  in	  

with	  patients	  that	  have	  been	  in	  the	  unit(s)	  for	  multiple	  years.	  	  Finding	  a	  treatment	  curriculum	  that	  is	  

applicable	  to	  this	  disparate	  population	  mix	  is	  quite	  difficult.	  	  Some	  inmates	  have	  literally	  been	  through	  

every	  sort	  of	  treatment	  curriculum	  offered,	  often	  more	  than	  once,	  while	  others	  are	  new	  to	  it.	  	  	  

	  

In	  addition	  to	  the	  challenge	  of	  appropriate	  treatment	  curriculum,	  I	  have	  a	  concern	  that	  the	  length	  of	  

stay	  in	  BMU	  and	  STP	  are	  proportional	  to	  the	  length	  of	  original	  DDU	  sanction	  rather	  than	  being	  based	  

solely	  on	  clinical	  improvement.	  	  (

	  at	  STP	  and	   	  at	  BMU	  are	  illustrative	  cases.)	  	  The	  system	  

would	  benefit	  from	  some	  true	  utilization	  review/utilization	  management	  to	  address	  this	  issue.	  	  Hospitals	  

and	  insurance	  companies	  use	  independent	  clinician	  reviewers	  to	  objectively	  review	  records	  to	  

determine	  whether	  or	  not	  the	  patient	  continues	  to	  meet	  the	  criteria	  for	  an	  inpatient	  (or	  in	  this	  case,	  

residential)	  stay.	  	  STP	  and	  BMU	  bed	  space	  is	  already	  quite	  limited	  given	  the	  size	  of	  the	  MDOC	  

population,	  but	  it	  is	  further	  compromised	  by	  holding	  on	  to	  inmates	  year	  after	  year,	  even	  though	  they	  

have	  achieved	  whatever	  treatment	  goals	  have	  been	  set	  or	  attained	  the	  highest	  level	  of	  privilege	  in	  the	   units.1	  	  	  	  	  

	  

Further,	  although	  defendants	  have	  denied	  it	  when	  raised	  in	  the	  past,	  we	  again	  found	  inmates	  that	  were	  

slated	  to	  wrap	  up	  their	  prison	  sentence	  being	  released	  in	  short	  order	  to	  the	  street	  directly	  from	  the	  

BMU.	  	  Failure	  to	  provide	  any	  transitional	  phase	  treatment	  or	  adequate	  preparation	  for	  release	  into	  the	  

community	  is	  not	  only	  clinically	  inappropriate	  but	  irresponsible	  to	  the	  general	  public.	  

	  

	  

Opinion:	  

	  

I	  have	  very	  grave	  concerns	  regarding	  the	  screening	  and	  evaluation	  process	  and	  a	  system	  that	  continues	  

to	  minimize	  diagnoses	  which	  denies	  eligibility	  for	  treatment.	  	  There	  is	  a	  dis-­‐connect	  between	  the	  types	  

and	  numbers	  of	  psychotropic	  medications	  prescribed	  and	  trivializing/minimizing	  diagnoses	  even	  while	  

prescribing	  powerful	  antipsychotic	  medications	  and/or	  multiple	  antidepressant	  medications.	  Cases	  of	  

undesignated	  SMI	  inmates	  have	  been	  identified	  on	  every	  site	  visit.	  The	  “process”	  developed	  by	  

defendants	  to	  address	  the	  concerns	  that	  have	  been	  raised	  appears	  to	  crystalize	  improper	  diagnoses	  and	  

practices	  rather	  than	  leading	  to	  any	  true	  quality	  improvement	  or	  enhanced	  clinical	  practice.	  	  	  

	  

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1	  Lack	  of	  bed	  space	  creates	  access	  problems	  and,	  over	  time,	  may	  also	  contribute	  to	  the	  failure	  to	  accurately	  classify	  inmates	  as	  
SMI.	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  

	  
2	   DLC	  v	  DOC	  Settlement	  Agreement	  
Designated	  Expert	  Report	  #4	   	  

I	  fear	  that	  the	  pattern	  of	  underdiagnosis	  has	  undermined	  the	  intent	  to	  protect	  inmates	  with	  SMI	  from	   the	  psychological	  harm	  associated	  with	  segregation.	  	  	  Here	  are	  just	  a	  few	  examples	  that	  demonstrate	   the	  severity	  of	  problems:	  

• The	  system	  rejects	  its	  own	  previous	  diagnoses,	  treatment	  records	  and	  outside	  hospital	  records	  

in	  favor	  of	  accepting	  a	  local	  jail’s	  diagnosis	  and	  downgrading	  an	  offender’s	  diagnosis	  from	  SMI	  to	  

substance	  abuse.	  ( )	  

• The	  system	  has	  evolved	  to	  endorse	  treatment	  of	  substance	  abuse	  with	  antipsychotic,	  

antidepressant	  and	  mood-­‐stabilizing	  medications,	  which	  are	  not	  recognized	  treatments	  for	  

substance	  abuse.	  	  They	  are	  recognized	  as	  treatment	  for	  mental	  illness.	  	  

• The	  system	  doesn’t	  identify	  an	  offender	  who	  was	  previously	  and	  specifically	  removed	  from	  DDU	  

because	  of	  SMI	  or	  prevent	  his	  return	  to	  the	  very	  same	  noxious	  environment	  from	  which	  he	  was	  

removed.	  	  Only	  this	  time,	  with	  no	  treatment,	  the	  offender	  is	  rather	  miraculously	  not	  only	  not	  

SMI,	  he’s	  not	  even	  on	  the	  mental	  health	  caseload!	  (

)	  	  	  	  

• It	  has	  become	  a	  system	  in	  which	  SMI	  classification	  can	  be	  removed,	  all	  psychotropic	  medications	  

discontinued	  with	  re-­‐emergent	  but	  untreated	  symptoms	  that	  contribute	  to	  behaviors	  that	  

endanger	  staff	  but	  still,	  the	  offender	  is	  without	  treatment	  and	  housed	  in	  the	  SMU	  facing	  very	  

serious	  charges.	  ( )	  

• It	  is	  a	  system	  in	  which	  an	  inmate	  with	  a	  Roger’s	  treatment	  order	  at	  admission	  permits	  the	  order	  

to	  expire,	  changes	  medications	  and	  then	  fails	  to	  adequately	  monitor	  the	  medication	  change	  or	  

inmate’s	  response,	  or	  obtain	  serum	  blood	  levels	  timely	  to	  adjust	  the	  dose	  for	  months	  at	  a	  time.	  	  

Consequently,	  when	  the	  manic	  condition	  breaks	  through	  and	  the	  inmate	  is	  confined	  to	  

segregation	  for	  behaviors	  related	  to	  his	  poorly	  and	  under-­‐treated	  SMI,	  he	  is	  not	  identified,	  

diverted,	  offered	  extra	  services	  or	  even	  provided	  an	  adequate	  dose	  of	  medication.	  (

)	  

In	  my	  judgment	  the	  screening	  and	  evaluation	  process	  required	  by	  the	  Agreement	  to	  identify	  inmates	   with	  SMI	  is	  not	  working	  to	  exclude	  inmates	  with	  SMI	  from	  the	  DDU.	  	  	  Systemic	  problems	  with	   identification	  and	  access	  to	  a	  higher	  level	  of	  mental	  health	  care	  persist.	   	   	   	   	   	  

3	   DLC	  v	  DOC	  Settlement	  Agreement	  
Designated	  Expert	  Report	  #4	   	  

 
 Disability Law Center, Inc. vs Massachusetts Department of Correction, et al. Civil Action No. 07-10463 (MLW)
First Report of Designated Expert Kathryn A. Burns, MD, MPH
Date(s) of Site Visit: September 10-12, 2012 Date of Report: October 22, 2012
Sites toured: Souza Baranowski Correctional Center (SBCC)
• Special Management Unit (segregation) • Secure Treatment Program (STP) MCI-Cedar Junction (MCI-CJ) • Special Management Unit (10 Block, segregation) • Behavioral Management Unit (BMU) • Departmental Disciplinary Unit (DDU)
This first site visit consisted of touring segregation and high security treatment units at SBCC and MCI-CJ; rounding in some of the Special Management Units (SMU); meeting with select inmates housed in segregation units individually and group meetings with inmates in the high security treatment units. Inmates confined in Special Management Units were selected for interview based upon their being on a waitlist for STP or BMU and in segregation for 30-days or longer; inmates with an MH3 classification and/or prescribed antipsychotic medication or more than three psychotropic medications though not considered SMI by the DOC and its vendor, MHM.
Superintendents, prison administrative staff, institutional custody and mental health staff in addition to representatives from the central office and the legal office were very helpful and accommodating to these visits.
Souza-Baranowski Correctional Center (SBCC)
Special Management Unit (SMU)
The SBCC SMU, visited on September 10, was orderly, quiet and clean. During our rounds on the South SMU (J wing), all inmates affirmed that mental health staff conduct rounds regularly. Inmates also identified other ways to get mental health care including calling an emergency situation (“Medic 5”) or submitting a written request.
Five inmates were interviewed individually. Four of them had been identified as SMI and in segregation for 30-days or longer; one had been on the STP waitlist for eight months and one was on a watch in the HSU and was to be transferred to the BMU at the end of the month. Transfer to the STP for the waitlisted inmate had been delayed to accommodate STP admissions for inmates believed more acutely in need of transfer. Those inmates identified as SMI and in segregation for more than 30 days reported being offered the opportunity for a weekly 1:1 out-of-cell counseling opportunity; most
1 DLC v MDOC Settlement Agreement Designated Expert Report #1

take advantage of it. One inmate appeared psychotic but was not prescribed any antipsychotic medication at the time of the site visit although he was identified as SMI and had seen the psychiatrist. This case was brought to the attention of institutional staff for assessment/follow-up.
Secure Treatment Program (STP)
The STP was fully operational. The census on the day of the site visit was 19 although two inmates were at Bridgewater State Hospital and one was out-to-court. The housing unit was clean and quiet. A significant amount of retrofitting of the housing unit was completed allowing two areas of secure group treatment space (one with desks and another with treatment modules) in addition to the open dayroom equipped with metal tables permitting inmates to interact and socialize with one another during unstructured out-of-cell time.
Two groups of inmate program participants were interviewed. For the most part, all of them (10 inmates) related positive treatment experiences in the STP and expressed regard for treatment staff and appreciation for having been provided the opportunity for participation in the program. They raised three areas of constructive criticism that are worthy of further consideration:
1. Accountability cells - With a change in the management staff in the STP, the function of the accountability cells had also recently been modified to serve as an immediate consequence for an accusation of a disciplinary infraction in addition to placement for safety reasons and/or after a finding of guilt for an infraction. Prior to this change, involvement in behavior that could lead to a disciplinary infraction was assessed on a case-by-case basis and incorporated into the individual’s overall treatment plan. Not every infraction resulted in a return to Phase 1. Current utilization amounts to punishment (drop of privilege level, restriction of property) without a finding of guilt. The inmates objected to the lack of due process and to the perceived lack of proportionality in accountability cell confinement. (Similar complaints about accountability cells voiced in the BMU are described below.) Staff affirmed the change in use of the accountability cells as an immediate consequence to some behavior.
2. Discharge planning – No mechanism for graduation/discharge from the program based on improved and stable clinical condition. Discharge is based solely on completion of the time required to be served as a result of a DDU sanction. (Although there is a mechanism to receive some reductions in the DDU sanction for good behavior, some inmates are in the STP for years and years in spite of improvement and clinical stability. This is going to represent a challenge not only for the inmates but also for the treatment staff to provide on-going, new and additional types of treatment interventions to this group of inmates and simultaneously address the treatment needs of inmates newly admitted. Additionally, this appears to be an inappropriate use of valuable and quite limited treatment space for those who no longer require such an intensive level of care.)
2 DLC v MDOC Settlement Agreement Designated Expert Report #1

Further, even when inmates are “discharged” at the expiration of DDU sanction, they are generally released, with little preparation, to a maximum security and chaotic environment that is the same or similar to that which led to the behaviors and DDU sanction initially. By contrast, in the past some inmates were discharged from the STP to medium security. In addition, some transitional housing/programming or step-down planning occurred in the past permitting some inmates to go to an RTU, even temporarily, to assist in the discharge process.
3. Second shift custody staff - Virtually all STP inmates reported problematic officers on the second shift, particularly relief officers, without adequate supervision. Problems reported included verbal disrespect by the officers up to and including perceived harassment and provocation in addition to failure to call a mental health emergency on an inmate’s behalf.
MCI-Cedar Junction
Special Management Unit (SMU) - 10 Block
The SMU has the capacity to house 60 inmates. The census was 33 at the time of the site visit. The unit appeared to be functioning in an orderly manner. It was clean and the inmates were quiet; some were out in the recreation yards, some sleeping and one mental health worker was seeing caseload inmates outside of their cells for individual counseling sessions. During our rounds of the unit, inmates affirmed seeing mental health staff routinely conduct rounds twice weekly.
Six inmates were interviewed privately in an interview room located just off the housing unit. They were selected for interview from the roster provided by the institution: four inmates were identified as SMI, two of them having been in segregation more than 30 days; and another was identified as prescribed haloperidol but was not on the mental health caseload. This process revealed that there were some transcription errors on the institutional rosters in terms of accurate labeling as SMI and current medication prescriptions. SMI inmates in segregation were being provided a weekly out-of-cell individual contact with their mental health counselor. Institutional staff reported that one inmate on the roster and interviewed was mistakenly reported as SMI, his diagnosis was some sort of affective disorder Not Otherwise Specified (NOS). However, there were significant indications of bipolar disorder (and hence, SMI) during the interview and this inmate requires reconsideration following a comprehensive mental health assessment. Another SMI inmate on the unit longer than 30 days was on the waitlist for STP admission. Out-of-state placement was being pursued in another case of an SMI inmate in SMU for more than 30 days. One SMI inmate that arrived in the unit recently had a profound hearing impairment that seriously compromised meaningful spoken communication – and may have contributed to the behavior which led to his being charged with staff assault.
3 DLC v MDOC Settlement Agreement Designated Expert Report #1

Behavioral Management Unit (BMU)
The BMU has a capacity of 10 and had a full census at the time of the site visit. The unit appeared clean and quiet; most of the inmates were at outdoor recreation when we arrived although a few had declined. Inmates are housed in single cells on the first floor of the unit. Group treatment rooms, one containing secure desks and the other with therapeutic modules, are also on the first floor. The “accountability cells” are located on the second story of the housing unit.
Nine of the ten inmates assigned to the BMU were interviewed in group settings. (One group contained four inmates and the other group, five.) Some inmates had been in the program virtually since the opening of the unit; five inmates had been there for a year or longer; three had been there for longer than six months but less than a year; and two inmates were relatively recent admissions having been there for one to three months. (One of the more recently admitted inmates had been in the unit on a prior occasion.) One inmate had been transferred from the STP to BMU presumably as a result of a physical altercation with a correctional officer in STP.
Although specific data was not shared with us, institutional and mental health staff reported that the BMU outcomes measured across a variety of metrics were quite positive. Some of these measures included a decreased need for use of force, fewer rule violations/disciplinary infractions, dramatic reductions in inmate-self injury and crisis care and a very low re-admission rate. It was therefore, particularly disconcerting to observe the degree of anger, hostility and frustration expressed by the inmates during our group meetings with them. Additionally, in spite of the use of groups to provide virtually all programming in the unit, the inmates themselves had developed no group skills whatsoever, yelling and talking over one another, cutting one another off, failing to listen to one another, etc. (This is in stark contrast to the group meetings and inmate behaviors in the STP. The contrast is not just a reflection of psychopathology inasmuch as both units contain SMI inmates with significant Axis II co-morbidities.)
In terms of content, inmates reported that the BMU programming was not helpful to them; they found it punitive rather than therapeutic and expressed grave concerns about the perceived lack of confidentiality. They pointed to the use of the “accountability cells” for many purposes as an example of the punitive nature of the BMU. The inmates reported that these cells are being used as an immediate consequence to accusations of rule violations (without any finding of guilt), as punishment after a finding of guilt for a rule violation, as crisis watch/suicide prevention cells and, most recently, as a threatened consequence to refusing program participation. Regardless of the reason for placement in the accountability cells, the consequences and conditions are the same: loss of level/privileges and property; removal of clothing and undergarments with issue of safety smock; no soap or toothpaste; no access to shower; and all meals are finger foods. (These complaints are similar to ones voiced by STP inmates, although in the STP inmates are apparently given basic hygiene items.)
4 DLC v MDOC Settlement Agreement Designated Expert Report #1

As another example of the punitive nature of the BMU, inmates also complained of multiple, repeated strip searching in spite of the numbers and locations of multiple cameras (including views into each cell.) In yet another example, there is only one potential inmate job assignment in the BMU. It is that of an inmate runner and the position is filled by one of the BMU residents. However, he is made to perform his job duties (cleaning showers, mopping, etc.) with one hand cuffed and attached to a belly chain. (Both the fact of there being only one potential job assignment and the manner in which the inmate is restrained while completing his duties were offered as evidence of the punitive rather than therapeutic nature of the BMU.) There was also a great deal of frustration and boredom expressed concerning group activities, particularly among inmates who had been housed in the BMU for years – the curriculum has not varied or programming kept pace to prevent boredom given the duration of time some inmates are confined in BMU. (The group activity that was interrupted by our usurping the time on the day of the visit was to watch a DVD of a television show about modern day prospecting for gold in Alaska. The relevance of such an activity and/or therapeutic value was not clear.) It is not surprising that the MHM monthly reports indicate that the group attendance rate in the BMU dropped from 84% in April to 44% in July.
Inmate groups expressed similar concerns to those of STP inmate regarding no “graduation” from BMU regardless of improvement or attainment of treatment plan goals. Inmates are only released at the expiration of their DDU sanction. (One inmate reported that he had been returned to BMU even though he had no DDU sanction. He said he didn’t receive an explanation as to why nor was he given a BMU release date.)
DDU
The environment itself and “tone” of the unit was much improved over prior visits. The unit appeared to be running orderly and smoothly without the noise, chaos and inmate agitation levels observed during other site visits. The institutional staff acknowledged as much and attributed the improvements to the transfers of some of the DDU population into the BMU and STP units.
According to the DDU roster (both initial and updated), there are no SMI inmates housed in DDU. It appears that the pre-placement screenings are completed but only a small sample of records was reviewed. However, in the recently admitted cases reviewed, there appears to be an over-reliance on pre-existing diagnoses made while inmates are in DOC custody, regardless of diagnostic accuracy or adequacy rather than an actual screening or evaluation of current condition. (For example, although the use of “rule out” diagnoses has been addressed, the “Not Otherwise Specified” (NOS) modifier is over-represented. It does not appear that a NOS diagnosis is re-visited to determine its veracity and there is no documentation to explain just what makes the case “NOS” or “atypical” or why the condition doesn’t meet the usual diagnostic criteria. The use of certain NOS diagnoses, such as mood disorder NOS, may have a profound impact on whether an inmate is consider SMI or not and must be addressed.)
5 DLC v MDOC Settlement Agreement Designated Expert Report #1

Inmates were chosen for an individual out-of-cell interview based upon information contained on the roster; that is, having an MH3 classification, prescription of antipsychotic medication or prescription of three or more psychotropic medications regardless of type. Eight inmates were interviewed. There were indications that at least three of them required a more comprehensive mental health assessment and precise diagnostic clarification (one with an NOS diagnosis, one diagnosed with primary insomnia in prison though outside treatment records and current presentation consistent with psychotic disorder; another diagnosed in prison with Mood Disorder NOS but outside providers, history and current medication consistent with Bipolar Disorder.) One inmate was mistakenly listed as taking an antipsychotic medication though it had been discontinued many months prior and there were no indications of psychosis. One inmate had been offered BMU participation but declined due to serious past issues with other inmates on the unit.
All inmates acknowledged seeing mental health staff on rounds and caseload inmates were offered individual out-of-cell counseling sessions about once a month. There were issues with respect to the frequency, duration and location of appointments with psychiatry. (One recently arriving inmate had his medication dose cut substantially without ever having met the psychiatrist or being told of the dose reduction. This precipitated some behavioral problems and placement on a crisis watch. The dose reduction, absence of a psychiatric assessment and crisis as reported by the inmate were all verified by documentation in the medical record.)
Assessment
Because this was only the very first site visit, only two institutions were visited, and other data on which to base a conclusion is limited at this early stage, I am refraining from articulating an opinion with regard to the Department’s compliance with the terms of the Settlement Agreement at this time. However, it is clear that to date, the Department has put forth good faith efforts in many respects including but not necessarily limited to: retrofitting high security environments to permit out-of-cell individual and group contacts; revising security policy to permit congregate activity; developing the software mechanisms and processes to ensure the collection of vast amounts of data not previously collected; and facilitating ready access to inmates and information cooperatively and efficiently during this first site visit. I am putting forth a number of recommendations that are intended to be offered in the same cooperative and collegial spirit as that demonstrated by the Department in preparing for and participating with the actual site visit.
Recommendations
1. Ensure that information contained in the housing unit rosters is up to date and accurate. Clearly, it is difficult if not impossible to track movement, monitor trends and patterns and ensure compliance with proposed treatment interventions if the most basic of information is not reliable. (This
6 DLC v MDOC Settlement Agreement Designated Expert Report #1

recommendation is being offered with the understanding that the roster inaccuracies were truly unintentional and undiscovered until the actual site visit. Staff were apologetic and worked diligently to correct the information while we were on site. They recognized the need to establish processes to ensure and verify the accuracy of the rosters.)
2. Ensure that inmates awaiting placement in an STU are labeled as MH-4 and are provided the requisite amount of structured out-of-cell individual or group activities, out of cell leisure activity and clinical sessions as provided in the agreement. There appeared to be some confusion about the mental health classification of inmates on the waiting list for an STU with regard to whether they can be designated as MH-4, with staff inadvertently failing to reclassify inmates to MH-4, and consequently not increasing out-of-cell time accordingly.
3. Review STP admission waitlist management. Acuity is certainly a factor but the duration of time spent in segregation while on the waitlist should also be given some consideration.
4. Review mission/use of accountability cells in both STP and BMU. There appears to have been some mission creep evidenced by the use of the cells for multiple and mixed purposes: sanction for unproven behavior, safety/suicide prevention, punishment or threat for non-participation in programming.
5. Review STP length of stay and discharge planning. Length of stay should be related to achieving treatment goals in addition to DDU sanction time so as not to retain individuals at a higher/more expensive and highly limited level of care than required for their condition and the safety of the institution. It was my understanding that the STP was designed so that inmates could graduate from the program before completing the DDU sentence, with the balance of the DDU sentence held in abeyance, but this no longer appears to be the case. Consideration should also be given to returning to better transitional/step down placement and planning when discharged from the STP, whether as a result of completing DDU time or as a step in clinical care.
6. Encourage further investigation of STP second shift custody staff and supervision.
7. Consider implementing a weekly STP inmates and staff unit meeting during which concerns and suggestions can be addressed informally and a sense of community fostered.
8. Review BMU admission criteria and programming. The recent re-admission of an inmate with no DDU sanction and the transfer of an inmate with a serious Axis I disorder from STP to BMU suggest that there has been significant drift away from the unit’s initially planned mission and target population. Programming/curriculum are also likely due for review/revision in light of mission creep and the duration of time some of the inmates have been in BMU to
7 DLC v MDOC Settlement Agreement Designated Expert Report #1

address repeating treatment modules multiple times and the resulting boredom that ensues. 9. BMU evaluation metrics: A number of variables are currently measured and are reported to demonstrate good results. Nevertheless, given the duration of time that some of the inmates have been in BMU and the overall level of expressed dissatisfaction, unrest and anger, consider exploring some additional ways to define success, measure outcomes. Without access to knowing the variables currently being measured, it is difficult to offer accurate or meaningful suggestions as to what these could or should be but a comparison of postrelease functioning of inmates released from BMU, STP and DDU may be illustrative if not already done in addition to some objective measures of improvement and sustained stability in clinical condition during BMU treatment and after release may provide additional useful information that could be incorporated into programming. 10. Comprehensive diagnostic assessments are recommended for a number of inmates in the DDU and SMUs. Brief interviews suggested pathology in excess of that reflected in the diagnosis listed on the rosters and chart reviews did not provide documented rationale for assigned diagnoses. Unjustified use of the NOS modifier may directly impact the conclusion of whether or not an inmate is SMI and entitled to the additional programs and services agreed upon in the Settlement Agreement.
8 DLC v MDOC Settlement Agreement Designated Expert Report #1

 
 Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 1 of 33
CLOSED,MOTREF
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:07−cv−10463−MLW

Disability Law Center, Inc. v. Massachusetts Department of Correction et al Assigned to: Judge Mark L. Wolf Cause: 42:1218(2) Americans with Disabilities Act
Plaintiff

Date Filed: 03/08/2007 Date Terminated: 04/12/2012 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Disability Law Center, Inc.

represented by James S. Rollins Bingham McCutchen LLP 150 Federal Street Boston, MA 02110 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hickey Silveira Seyfarth Shaw, LLP World Trade Center East Two Seaport Lane Suite 300 Boston, MA 02210 617−946−4808 Email: asilveira@seyfarth.com ATTORNEY TO BE NOTICED

Bonita P. Tenneriello Prisoners' Legal Services 10 Winthrop Square, 3rd Flr. Boston, MA 02110 617−482−2773 ext 106 Fax: 617−451−6383 Email: btenneriello@plsma.org ATTORNEY TO BE NOTICED

Carol E. Head Attorney General's Office 18th Floor One Ashburton Place Boston, MA 02108 617−963−2690 Email: carol.head@state.ma.us ATTORNEY TO BE NOTICED

Cynthia M. Guizzetti Nutter, McClennen & Fish, LLP Seaport West 155 Seaport Boulevard Boston, MA 02210−2604 617−439−2491 Fax: 617−310−9491 Email: cynthia.guizzetti@gmail.com TERMINATED: 10/30/2008 ATTORNEY TO BE NOTICED

David Yamin Bingham McCutchen LLP One Federal Street Boston, MA 02110−1726

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 2 of 33
617−951−8000 Fax: 617−951−8736 Email: david.yamin@bingham.com ATTORNEY TO BE NOTICED
James R. Pingeon Prisoners Legal Services Inc. 10 Winthrop Sq. Boston, MA 02110 617−482−2773 Fax: 617−451−6383 Email: jpingeon@plsma.org ATTORNEY TO BE NOTICED
Karen O. Talley Disability Law Center Suite 925 11 Beacon Street Boston, MA 02108 617−723−8455 Fax: 617−723−9125 ATTORNEY TO BE NOTICED
Nancy J. Murphy Disability Law Center 32 Industrial Park East Northampton, MA 01060 413−584−6337 Fax: 413−584−2976 Email: nmurphy@dlc−ma.org ATTORNEY TO BE NOTICED
Richard M. Glassman Disability Law Center 11 Beacon Street, Suite 925 Boston, MA 02108 617−723−8455 Fax: 617−723−9125 Email: rglassman@dlc−ma.org ATTORNEY TO BE NOTICED
Robert B. Baker Securities and Exchange Commission − MA 33 Arch Street 23rd Floor Boston, MA 02110−1424 617−573−8918 Fax: 617−573−4590 Email: bakerr@sec.gov TERMINATED: 09/06/2007 ATTORNEY TO BE NOTICED
Robert D. Fleischner Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5211 Email: rfleischner@cpr−ma.org ATTORNEY TO BE NOTICED
V.

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 3 of 33

Defendant
Massachusetts Department of Correction

represented by William D. Saltzman Commonwealth of Massachusetts, Department of Correction 70 Franklin Street Suite 600 Boston, MA 02110 617−727−3300 Ext. 154 Fax: 617−727−4703 Email: wdsaltzman@doc.state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles W. Anderson , Jr. Department of Correction Legal Division, Suite 600 70 Franklin Street Boston, MA 02110 617−727−3300 Fax: 617−727−7403 Email: Charles.Anderson@massmail.state.ma.us ATTORNEY TO BE NOTICED

Cynthia M. Guizzetti (See above for address) TERMINATED: 10/30/2008 ATTORNEY TO BE NOTICED

James A. Bello Morrison, Mahoney LLP 250 Summer Street Boston, MA 02210 617−737−8803 Fax: 617−342−4968 Email: jbello@morrisonmahoney.com ATTORNEY TO BE NOTICED

Sheryl F. Grant Commonwealth of Massachusetts, Department of Correction 70 Franklin Street Suite 600 Boston, MA 02110 617−727−3300 ext. 140 Fax: 617−727−7403 Email: Sheryl.Grant@Massmail.state.ma.us ATTORNEY TO BE NOTICED

Defendant
Commissioner Kathleen Dennehy in her official capacity TERMINATED: 03/21/2008

represented by William D. Saltzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles W. Anderson , Jr. (See above for address) ATTORNEY TO BE NOTICED

Cynthia M. Guizzetti (See above for address) TERMINATED: 10/30/2008 ATTORNEY TO BE NOTICED

Sheryl F. Grant

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 4 of 33

(See above for address) ATTORNEY TO BE NOTICED

Defendant
Deputy Commissioner James Bender in his official capacity

represented by William D. Saltzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles W. Anderson , Jr. (See above for address) ATTORNEY TO BE NOTICED

Cynthia M. Guizzetti (See above for address) TERMINATED: 10/30/2008 ATTORNEY TO BE NOTICED

Sheryl F. Grant (See above for address) ATTORNEY TO BE NOTICED

Defendant
Assoc. Commissioner Veronica Madden in her official capactiy

represented by William D. Saltzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles W. Anderson , Jr. (See above for address) ATTORNEY TO BE NOTICED

Cynthia M. Guizzetti (See above for address) TERMINATED: 10/30/2008 ATTORNEY TO BE NOTICED

Sheryl F. Grant (See above for address) ATTORNEY TO BE NOTICED

Defendant
Asst. Dep. Comm&#039 John Jr. Marshall in his official capacity

represented by William D. Saltzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles W. Anderson , Jr. (See above for address) ATTORNEY TO BE NOTICED

Cynthia M. Guizzetti (See above for address) TERMINATED: 10/30/2008 ATTORNEY TO BE NOTICED

Sheryl F. Grant (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 5 of 33

Asst. Dep. Comm&#039 Timothy Hall in his official capacity

William D. Saltzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles W. Anderson , Jr. (See above for address) ATTORNEY TO BE NOTICED

Cynthia M. Guizzetti (See above for address) TERMINATED: 10/30/2008 ATTORNEY TO BE NOTICED

Sheryl F. Grant (See above for address) ATTORNEY TO BE NOTICED

Defendant Harold W. Clarke

represented by Charles W. Anderson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Ankers White Commonwealth of Massachusetts, Department of Correction 70 Franklin Street Suite 600 Boston, MA 02110 617−727−3300 Fax: 617−727−7403 Email: legaldivision@doc.state.ma.us (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheryl F. Grant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William D. Saltzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
University of Massachusetts Correctional Health Program

represented by Anthony E. Abeln Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 617−737−8885 Fax: 617−342−4802 Email: aabeln@morrisonmahoney.com TERMINATED: 08/19/2010 ATTORNEY TO BE NOTICED

Christopher Quinn Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 617−439−7551 ATTORNEY TO BE NOTICED

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 6 of 33

Movant Daniel LaPlante TERMINATED: 09/05/2007
Interested Party MHM Services, Inc.
Interested Party Andrew W. Kilburn

James A. Bello (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel LaPlante SBCC P.O. Box 8000 Shirley, MA 01464−8000 PRO SE
Cynthia M. Guizzetti (See above for address) TERMINATED: 10/30/2008 ATTORNEY TO BE NOTICED
represented by Stephen E. Hughes Bonner, Kiernan, Trebach & Crociata, LLP 40 Court Street, 3rd Floor Boston, MA 02108 617−426−3900 Fax: 617−426−0380 Email: shughes@bonnerkiernan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew W. Kilburn Souza Baranowski Correctional Center 1 Harvard Road P.O. Box 8000 Shirley, MA 01464 PRO SE

V. Intervenor Robert Aldrich
Intervenor Demond Hicks TERMINATED: 09/20/2017

represented by Robert Aldrich W−95614 MCI − Shirley PO Box 1218 Shirley, MA 01464 PRO SE
represented by Demond Hicks W−107908 S.B.C.C. (Max) PO Box 8000 Shirley, MA 01464 PRO SE

Date Filed 03/08/2007

# Docket Text
1 COMPLAINT against all defendants Filing fee: $ 350, receipt number 1436766, filed by Disability Law Center, Inc.. (Attachments: # 1 Civil Cover Sheet Cover Sheet + Attachments (Guizzetti, Cynthia) Modified on 3/8/2007 (Patch, Christine). (Entered: 03/08/2007)

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03/08/2007 03/08/2007
03/08/2007
03/08/2007 03/08/2007 03/08/2007 03/09/2007 03/15/2007
03/16/2007
03/20/2007 03/20/2007 03/20/2007 03/21/2007 03/27/2007
03/28/2007
04/09/2007 04/12/2007 05/04/2007 05/07/2007
07/24/2007 07/30/2007

2 CORPORATE DISCLOSURE STATEMENT by Disability Law Center, Inc.. (Patch, Christine) (Entered: 03/08/2007)
ELECTRONIC NOTICE of Case Assignment. Judge Mark L. Wolf assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Alexander (Patch, Christine) (Entered: 03/08/2007)
Summons Issued as to Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall. (Patch, Christine) (Entered: 03/08/2007)
3 NOTICE of Appearance by Robert B. Baker on behalf of Disability Law Center, Inc. (Baker, Robert) (Entered: 03/08/2007)
4 NOTICE of Appearance by Richard M. Glassman on behalf of Disability Law Center, Inc. (Glassman, Richard) (Entered: 03/08/2007)
5 NOTICE of Appearance by Nancy J. Svirida on behalf of Disability Law Center, Inc. (Svirida, Nancy) (Entered: 03/08/2007)
6 NOTICE of Appearance by Robert D. Fleischner on behalf of Disability Law Center, Inc. (Fleischner, Robert) (Entered: 03/09/2007)
7 NOTICE of Appearance by Sheryl F. Grant on behalf of Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall (Grant, Sheryl) (Entered: 03/15/2007)
8 NOTICE of Appearance by William D. Saltzman on behalf of Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall (Saltzman, William) (Entered: 03/16/2007)
9 WAIVER OF SERVICE Returned Executed Veronica Madden waiver sent on 3/8/2007, answer due 5/7/2007. (Guizzetti, Cynthia) (Entered: 03/20/2007)
10 WAIVER OF SERVICE Returned Executed Timothy Hall waiver sent on 3/8/2007, answer due 5/7/2007. (Guizzetti, Cynthia) (Entered: 03/20/2007)
11 WAIVER OF SERVICE Returned Executed John Jr. Marshall waiver sent on 3/8/2007, answer due 5/7/2007. (Guizzetti, Cynthia) (Entered: 03/20/2007)
12 WAIVER OF SERVICE Returned Executed Kathleen Dennehy waiver sent on 3/8/2007, answer due 5/7/2007. (Guizzetti, Cynthia) (Entered: 03/21/2007)
13 STIPULATION For Entry of a Protective Order For The Protection of Confidential Information by Disability Law Center, Inc.. (Attachments: # 1 Text of Proposed Order)(Baker, Robert) (Entered: 03/27/2007)
14 NOTICE of Appearance by Charles W. Anderson, Jr on behalf of Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall (Anderson, Charles) (Entered: 03/28/2007)
15 Judge Mark L. Wolf : PROTECTIVE ORDER entered. (O'Leary, Dennis) (Entered: 04/09/2007)
16 NOTICE of Appearance by Karen O. Talley on behalf of Disability Law Center, Inc. (Talley, Karen) (Entered: 04/12/2007)
17 NOTICE of Appearance by Alison E. Hickey on behalf of Disability Law Center, Inc. (Hickey, Alison) (Entered: 05/04/2007)
18 ANSWER to Complaint by Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall.(Saltzman, William) (Entered: 05/07/2007)
19 Letter/request (non−motion) from Disability Law Center, Inc. for Scheduling Conference. (Guizzetti, Cynthia) (Entered: 07/24/2007)
20 NOTICE of Scheduling ConferenceScheduling Conference set for 9/5/2007 04:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered:

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08/13/2007 08/13/2007 08/13/2007 08/16/2007 08/24/2007 08/30/2007 08/30/2007 09/04/2007 09/04/2007
09/05/2007 09/05/2007 09/05/2007 09/05/2007 09/05/2007
09/07/2007
09/07/2007 09/11/2007

07/30/2007)
21 MOTION to Intervene by Daniel LaPlante, FILED.(Boyce, Kathy) (Entered: 08/16/2007)
22 MEMORANDUM in Support re 21 MOTION to Intervene filed by Daniel LaPlante, FILED. (Boyce, Kathy) (Entered: 08/16/2007)
24 CERTIFICATE OF SERVICE by Daniel LaPlante re 23 Affidavit in Support of Motion, 22 Memorandum in Support of Motion, 21 MOTION to Intervene. (Boyce, Kathy) (Entered: 08/16/2007)
23 AFFIDAVIT of Daniel LaPlante in Support re 21 MOTION to Intervene filed by Daniel LaPlante. (Attachments: # 1 Letter to Martha Coakley)(Boyce, Kathy) (Entered: 08/16/2007)
25 MEMORANDUM in Opposition re 21 MOTION to Intervene of Daniel LaPlante filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit A − Unpublished Decision# 2 Affidavit of Bradley Brockmann)(Guizzetti, Cynthia) (Entered: 08/24/2007)
26 Sealed Document. (O'Leary, Dennis) (Entered: 08/30/2007)
27 Sealed Document. (O'Leary, Dennis) (Entered: 08/30/2007)
28 JOINT STATEMENT re scheduling conference and Proposed Pretrial Schedule. (Guizzetti, Cynthia) (Entered: 09/04/2007)
29 MOTION for Leave to Appear Pro Hac Vice for admission of James S. Rollins Filing fee $ 50, receipt number 1652224. by Disability Law Center, Inc.. (Attachments: # 1 Exhibit Declaration of James S. Rollins In Support of Motion for Admission Pro Hac Vice)(Guizzetti, Cynthia) (Entered: 09/04/2007)
Judge Mark L. Wolf : Electronic ORDER entered granting 29 Motion for Leave to Appear Pro Hac Vice Added James S. Rollins for Disability Law Center, Inc. (O'Leary, Dennis) (Entered: 09/05/2007)
30 RESPONSE to Motion re 21 MOTION to Intervene filed by Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall. (Saltzman, William) (Entered: 09/05/2007)
31 NOTICE of Withdrawal of Appearance by Robert B. Baker (Baker, Robert) (Entered: 09/05/2007)
32 Judge Mark L. Wolf : ORDER entered denying 21 Motion to Intervene. For the reasons stated above, LaPlante's Motion to Intervene(Docket No. 21) is DENIED. (O'Leary, Dennis) (Entered: 09/06/2007)
Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf : Scheduling Conference held on 9/5/2007. Attys Rollins, Glassman, Pingeon and Guzzetti for the plaintiff. Attys Saltzman, Grant and Anderson for the defendants. Court goes over the case with the parties. Court raises issue of possible conflict with one of its law clerks. court informs the parties that the law clerk will no longer assist on the case. Court sets schedule for the remainder of the case. Scheduling order to issue. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 09/07/2007)
33 Judge Mark L. Wolf : ORDER entered. SCHEDULING ORDER:Final Pretrial Conference set for 12/18/2008 04:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf.,Status Conference set for 11/13/2008 03:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf.,Amended Pleadings due by 12/7/2007.,Discovery to be completed by 9/30/2008.,,Jury Trial set for 1/5/2009 09:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf.(O'Leary, Dennis) Additional attachment(s) added on 10/30/2007 (O'Leary, Dennis). (Entered: 09/07/2007)
35 MOTION to Withdraw Motion to Intervene, by Daniel LaPlante, FILED, c/s.(Boyce, Kathy) (Entered: 09/12/2007)
34 Certification Pursuant to Rule 16.1 of Certificate of Compliance with Local Rule 16.1 (D)(3). (Guizzetti, Cynthia) Text Modified on 9/20/2007 as incorrect event type selected when document was e−filed (Boyce, Kathy). (Entered: 09/11/2007)

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09/13/2007 09/20/2007 09/20/2007 11/23/2007 12/13/2007 01/23/2008 02/21/2008 02/26/2008
02/28/2008 03/04/2008 03/10/2008
03/13/2008 03/13/2008 03/19/2008

Judge Mark L. Wolf : Electronic ORDER entered finding as moot 35 Motion to Withdraw as the court has already denied the motion to intervene see Order on Motion to Intervene (docket no. 320. (O'Leary, Dennis) (Entered: 09/13/2007)
Notice of correction to docket made by Court staff. Correction: Document No. 34, Certification pursuant to Rule 16.1 corrected: as incorrect event type was selected when e−filed (Boyce, Kathy) (Entered: 09/20/2007)
36 CERTIFICATION pursuant to Local Rule 16.1 by Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall.(Saltzman, William) (Entered: 09/20/2007)
37 Sealed Document. (Boyce, Kathy) (Entered: 11/30/2007)
Judge Mark L. Wolf : ELECTRONIC ENDORSEMENT re 37 Sealed Document. The parties shall, by January 18, 2008 report further concerning settlement. (O'Leary, Dennis) (Entered: 12/14/2007)
38 Sealed Document. (Attachments: # 1 Attachment A)(Boyce, Kathy) (Entered: 01/23/2008)
39 MOTION for Order to Schedule Status Conference by Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall. (Attachments: # 1 Exhibit Plaintiff's Request for Production)(Saltzman, William) (Entered: 02/21/2008)
40 RESPONSE to Motion re 39 MOTION for Order to Schedule Status Conference filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit Exhibit A to Plaintiff's Response to Defendant's Motion for Status Conference, # 2 Exhibit Exhibit B to Plaintiff's Response to Defendant's Motion for Status Conference, # 3 Exhibit Exhibit C to Plaintiff's Response to Defendants' Motion for a Status Conference)(Hickey, Alison) (Entered: 02/26/2008)
41 NOTICE of Appearance by David Yamin on behalf of Disability Law Center, Inc. (Yamin, David) (Entered: 02/28/2008)
42 MOTION for Protective Order by Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall.(Saltzman, William) (Entered: 03/04/2008)
43 Chief Judge Mark L. Wolf: ORDER entered. The court has considered Defendant's Motion for a Status Conference (the "Motion") and Plaintiff Disability Law Center, Inc.'s Partial Assent and Response to it. It is hereby ORDERED that: 1. The Motion (Docket No. 39) is ALLOWED. 2. A status and settlement conference shall be held on March21, 2008, at 11:00 a.m. Members of the executive staff of the Department of Corrections (the "DOC") may be present. The court will decide at the conference whether they should be excluded from any or all of the discussion. 3. The parties shall, by March 19, 2008, jointly submit an agenda for the conference, with a short statement of their respective positions on disputed issues.4. The court understands that no party intends to request the court's recusal based upon its effort to mediate a mutually acceptable settlement of this case. The parties shall in the March 19, 2009 submission confirm, correct, or clarify the court's understanding on this issue. 5. The DOC shall, by March 19, 2008, state whether Harold W. Clarke is now the Commissioner of the DOC and should, therefore, be substituted for any other party pursuant to Federal Rule of CivilProcedure 25(d). (O'Leary, Dennis) (Entered: 03/10/2008)
44 Opposition re 42 MOTION for Protective Order filed by Disability Law Center, Inc.. (Hickey, Alison) (Entered: 03/13/2008)
45 MOTION for Extension of Time to July 1, 2008 to designate expert witnesses and exchange expert reports by Disability Law Center, Inc..(Hickey, Alison) (Entered: 03/13/2008)
46 RESPONSE to Motion re 45 MOTION for Extension of Time to July 1, 2008 to designate expert witnesses and exchange expert reports filed by Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall. (Saltzman, William) (Entered: 03/19/2008)

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03/19/2008 03/19/2008 03/20/2008 03/20/2008 03/21/2008 03/21/2008
03/31/2008 04/04/2008 04/07/2008 04/16/2008 04/22/2008
04/28/2008
04/29/2008 05/16/2008 05/22/2008 06/18/2008

47 Joint MOTION to Seal Statement of Disputed Issues by Disability Law Center, Inc., Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Daniel LaPlante, Timothy Hall.(Guizzetti, Cynthia) (Entered: 03/19/2008)
48 JOINT STATEMENT of counsel In Accordance With The Court's March 10, 2008 Order. (Guizzetti, Cynthia) (Entered: 03/19/2008)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 47 Motion to Seal (O'Leary, Dennis) (Entered: 03/20/2008)
49 Sealed Document. (Boyce, Kathy) (Entered: 03/21/2008)
50 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Settlement Conference held on 3/21/2008. (Court Reporter: romanow.) (O'Leary, Dennis) (Entered: 03/21/2008)
51 Chief Judge Mark L. Wolf: ORDER entered. As stated at the conference on March 21, 2008, it is herebyORDERED that: 1. By April 4, 2008, the parties shall confer and jointlyreport regarding:... 2. If they have requested an April 22, 2008 conference with the court, the parties shall, by April 16, 2008, file a furtherreport on issues relating to settlement and discovery, including aproposed agenda for the conference. 3. Discovery is generally stayed... 4. Pursuant to Federal Rule of Civil Procedure 25(d), Harold W. Clarke, the new Commissioner of the DOC, is substituted for Kathleen Dennehy as a party to this action, and the caption will be amended to reflect this substitution.(O'Leary, Dennis) (Entered: 03/21/2008)
52 NOTICE of Appearance by James R. Pingeon on behalf of Disability Law Center, Inc. (Pingeon, James) (Entered: 03/31/2008)
53 JOINT STATEMENT of counsel In Accordance With The Court's March 21, 2008 Order. (Hickey, Alison) (Entered: 04/04/2008)
54 JOINT STATEMENT of counsel In Accordance With The Court's March 21, 2008 Order − CORRECTED. (Hickey, Alison) (Entered: 04/07/2008)
55 JOINT STATEMENT of counsel In Accordance With Court's March 21, 2008 Order. (Attachments: # 1 Exhibit DLC Short Term Document Requests)(Hickey, Alison) (Entered: 04/16/2008)
Electronic Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Status Conference held on 4/22/2008. Parties discuss ongoing settlement discussions, outstanding issues regarding the production and copying of documents. Defendants agree to produce those documents that they have located that are responsive to plaintiff's requests by 4/25/08. Parties agree to continue settlement discussions pursuant to the scheduled outlined in their 4/4/08 report. Parties to submit proposed schedule for discovery and trial by 4/29/08. (Attorneys present: James Rollins, Cynthia Guizzetti, James Pingeon, David Yamin, Richard Glassman, Sheryl Grant, William Saltzman, Nancy Akers White) (O'Leary, Dennis) (Entered: 04/28/2008)
56 Chief Judge Mark L. Wolf: ORDER entered. As stated at the conference on April 22, 2008, it is herebyORDERED that, by April 29, 2008, counsel for the parties shallconfer and submit, jointly if possible but individually ifnecessary, a proposed schedule for preparing this case for trialwhich addresses each relevant part of the attached, blankscheduling order and which will replace the September 7, 2007Order. (Attachments: # 1 Blank Schedulign Order)(O'Leary, Dennis) (Entered: 04/28/2008)
57 Joint MOTION to Modify Scheduling Order by Disability Law Center, Inc..(Guizzetti, Cynthia) (Entered: 04/29/2008)
58 NOTICE of Appearance by Bonita P. Tenneriello on behalf of Disability Law Center, Inc. (Tenneriello, Bonita) (Entered: 05/16/2008)
59 NOTICE of Change of Address or Firm Name by Cynthia M. Guizzetti (Guizzetti, Cynthia) (Entered: 05/22/2008)
60 JOINT STATEMENT of counsel and PLAINTIFF'S REQUEST to AMEND SCHEDULING ORDER. (Fleischner, Robert) (Entered: 06/18/2008)

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07/31/2008 07/31/2008 07/31/2008
08/06/2008
08/06/2008 08/07/2008
08/08/2008 08/20/2008 08/20/2008 08/25/2008 09/02/2008 09/02/2008 09/09/2008 09/15/2008
09/15/2008
09/15/2008 09/26/2008 09/29/2008 09/29/2008

61 MOTION to Compel Production of Documents by University of Massachusetts Correctional Health Program Pursuant to a Subpoena by Disability Law Center, Inc..(Hickey, Alison) (Entered: 07/31/2008)
62 MEMORANDUM in Support re 61 MOTION to Compel Production of Documents by University of Massachusetts Correctional Health Program Pursuant to a Subpoena filed by Disability Law Center, Inc.. (Hickey, Alison) (Entered: 07/31/2008)
63 AFFIDAVIT in Support re 61 MOTION to Compel Production of Documents by University of Massachusetts Correctional Health Program Pursuant to a Subpoena filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Hickey, Alison) (Entered: 07/31/2008)
64 MOTION for Extension of Time to 09/01/2008 to 09/01/2008, MOTION for Extension of Time to 09/01/2008 to Complete Discovery ( Responses due by 8/20/2008) by Massachusetts Department of Correction.(Bello, James) (Entered: 08/06/2008)
65 MOTION for Extension of Time to 09/01/2008 to Complete Discovery by University of Massachusetts Correctional Health Program.(Bello, James) (Entered: 08/06/2008)
66 RESPONSE to Motion re 65 MOTION for Extension of Time to 09/01/2008 to Complete Discovery, 64 MOTION for Extension of Time to 09/01/2008 to 09/01/2008 MOTION for Extension of Time to 09/01/2008 to Complete Discovery Notice of Assent to Motion filed by Disability Law Center, Inc.. (Hickey, Alison) (Entered: 08/07/2008)
67 NOTICE of Appearance by Anthony E. Abeln on behalf of University of Massachusetts Correctional Health Program (Abeln, Anthony) (Entered: 08/08/2008)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 64 Motion for Extension of Time; granting 64 Motion for Extension of Time to Complete Discovery (O'Leary, Dennis) (Entered: 08/20/2008)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 65 Motion for Extension of Time to Complete Discovery (O'Leary, Dennis) (Entered: 08/20/2008)
68 JOINT STATEMENT of counsel for an Order Amending Scheduling Order. (Guizzetti, Cynthia) (Entered: 08/25/2008)
69 Joint MOTION for Extension of Time to 09/15/2008 to Complete Discovery on Plaintiff's Motion to Compel Production of Documents by University of Massachusetts Correctional Health Program.(Bello, James) (Entered: 09/02/2008)
70 JOINT STATEMENT of counsel. (Hickey, Alison) (Entered: 09/02/2008)
71 JOINT STATEMENT of counsel. (Hickey, Alison) (Entered: 09/09/2008)
72 Opposition re 61 MOTION to Compel Production of Documents by University of Massachusetts Correctional Health Program Pursuant to a Subpoena filed by University of Massachusetts Correctional Health Program. (Attachments: # 1 Exhibit A)(Bello, James) (Entered: 09/15/2008)
73 MEMORANDUM in Opposition re 61 MOTION to Compel Production of Documents by University of Massachusetts Correctional Health Program Pursuant to a Subpoena filed by University of Massachusetts Correctional Health Program. (Bello, James) (Entered: 09/15/2008)
74 MOTION to Stay Discovery by University of Massachusetts Correctional Health Program.(Bello, James) (Entered: 09/15/2008)
75 JOINT STATEMENT of counsel. (Hickey, Alison) (Entered: 09/26/2008)
76 Opposition re 74 MOTION to Stay Discovery and limited assent thereto filed by Disability Law Center, Inc.. (Hickey, Alison) (Entered: 09/29/2008)
77 AFFIDAVIT in Opposition re 74 MOTION to Stay Discovery of Alison E. Hickey, Esq. filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit Letter from Charles W. Anderson, Jr., Esq. to Nancy Svirida, Esq. dated September 9, 2008, # 2

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09/30/2008
10/01/2008
10/01/2008 10/30/2008 10/30/2008
10/31/2008 11/03/2008 11/06/2008 11/07/2008
12/01/2008 01/06/2009 02/17/2009 03/04/2009 03/19/2009 03/22/2009
05/01/2009 05/15/2009 05/18/2009

Exhibit Letter from Charles W. Anderson, Jr., Esq. to Alison E. Hickey, Esq. dated September 12, 2008)(Hickey, Alison) (Entered: 09/29/2008)
78 Assented to MOTION for Leave to File Reply to Non−Party University of Massachusetts Correctional Health Program's Memorandum in Support of its Opposition to Plaintiff's Motion to Compel, docket no. 73 by Disability Law Center, Inc..(Hickey, Alison) (Entered: 09/30/2008)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 78 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (O'Leary, Dennis) (Entered: 10/01/2008)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 45 Motion for Extension of Time Expert Witness due by 7/1/2008 nunc pro tunc. (O'Leary, Dennis) (Entered: 10/01/2008)
79 NOTICE of Withdrawal of Appearance by Cynthia M. Guizzetti (Guizzetti, Cynthia) (Entered: 10/30/2008)
80 REPLY to Response to 61 MOTION to Compel Production of Documents by University of Massachusetts Correctional Health Program Pursuant to a Subpoena (Leave to file Reply granted on October 1, 2008) filed by Disability Law Center, Inc.. (Hickey, Alison) (Entered: 10/30/2008)
81 JOINT STATEMENT of counsel. (Hickey, Alison) (Entered: 10/31/2008)
82 Letter/request (non−motion) from Robert Saunders requesting a copy of the complaint (Boyce, Kathy) (Entered: 11/05/2008)
83 Response by Disability Law Center, Inc. to Letter/Request (Non−Motion) of Robert Saunders. (Glassman, Richard) (Entered: 11/06/2008)
ELECTRONIC NOTICE Canceling Hearing. The Status Conference previously scheduled for 11/13/2008 has been canceled. If necessary it will be rescheduled after the court receives the parties further status report concerning settlement to be filed by 12/1/2008. (O'Leary, Dennis) (Entered: 11/07/2008)
84 JOINT STATEMENT of counsel. (Hickey, Alison) (Entered: 12/01/2008)
85 JOINT STATEMENT of counsel. (Hickey, Alison) (Entered: 01/06/2009)
86 JOINT STATEMENT of counsel. (Glassman, Richard) (Entered: 02/17/2009)
Judge Chief Judge Mark L. Wolf: ELECTRONIC ENDORSEMENT re 86 Joint statement of counsel. As requested, the parties shall report further by March 19, 2009. The case is otherwise STAYED. (O'Leary, Dennis) (Entered: 03/04/2009)
87 JOINT STATEMENT of counsel. (Hickey, Alison) (Entered: 03/19/2009)
88 Chief Judge Mark L. Wolf: ORDER entered. Therefore, it is hereby ORDERED that: 1. The Joint Motion to Modify Court's Pre−Trial Scheduling Order (Docket No. 57), and Plaintiff's Motion to Compel Production of Documents (Docket No. 61) are DENIED without prejudice. 2. Defendant's Motion for a Protective Order (Docket No. 42),and the University of Massachusetts Correctional Health Program's Motion to Stay Discovery (Docket No. 74) are ALLOWED without prejudice to reconsideration if requested. 3. The Joint Motion to Extend Time (Docket No. 69) is MOOT.4. The parties shall continue their discussions and, by May 1, 2009, report whether they have agreed to the terms of a settlement. 5. This case continues to be otherwise STAYED. (O'Leary, Dennis) (Entered: 03/24/2009)
89 JOINT STATEMENT of counsel. (Hickey, Alison) (Entered: 05/01/2009)
90 JOINT STATEMENT of counsel. (Hickey, Alison) (Entered: 05/15/2009)
Chief Judge Mark L. Wolf: ELECTRONIC ENDORSEMENT re 90 Joint statement of counsel. ALLOWED and SO ORDERED. All filings shall be made June 3, 2009. The conference will be held on June 10, 2009 at 2:00 PM. (O'Leary, Dennis) (Entered:

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05/18/2009 05/26/2009 05/28/2009
06/01/2009
06/02/2009 06/02/2009 06/09/2009
06/10/2009 06/10/2009 06/10/2009 06/10/2009 06/10/2009 06/10/2009 06/10/2009 06/19/2009
06/19/2009

05/18/2009)
ELECTRONIC NOTICE of Hearing : Settlement Conference set for 6/10/2009 02:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered: 05/18/2009)
91 Joint MOTION to Continue Settlement Conference to June 18, 2009 by Disability Law Center, Inc..(Hickey, Alison) (Entered: 05/26/2009)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting in part 91 Motion to Continue. The motion is hereby ALLOWED, the Settlement Conference, however, is now set for 6/17/2009 10:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. Please mark your calendars accordingly. (O'Leary, Dennis) (Entered: 05/28/2009)
92 Joint MOTION for Extension of Time to 6−10−07 to File Documents for the June 27, 2007 Settlement Conference by Harold W. Clarke, Disability Law Center, Inc., Massachusetts Department of Correction, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall.(Saltzman, William) (Entered: 06/01/2009)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 92 Motion for Extension of Time Status Report due by 6/10/2009. (O'Leary, Dennis) (Entered: 06/02/2009)
93 MOTION for Order to Allow Plaintiff's Expert to Attend and Participate in the Settlement Conference by Disability Law Center, Inc..(Hickey, Alison) (Entered: 06/02/2009)
94 Opposition re 93 MOTION for Order to Allow Plaintiff's Expert to Attend and Participate in the Settlement Conference filed by Harold W. Clarke, Massachusetts Department of Correction, Kathleen Dennehy, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall. (Saltzman, William) (Entered: 06/09/2009)
95 MOTION to Seal Document by Harold W. Clarke, Massachusetts Department of Correction, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall.(Saltzman, William) (Entered: 06/10/2009)
ELECTRONIC NOTICE Resetting Settlement Conference: Settlement Conference has been rescheduled to 6/19/09 @ 10:00 a.m. (Boyce, Kathy) (Entered: 06/10/2009)
96 Sealed Document. (Boyce, Kathy) (Entered: 06/10/2009)
97 Sealed Document. (Boyce, Kathy) (Entered: 06/10/2009)
98 SEALED MOTION (Boyce, Kathy) (Entered: 06/10/2009)
99 Sealed Document. (Boyce, Kathy) (Entered: 06/10/2009)
100 Sealed Document. (Boyce, Kathy) (Entered: 06/10/2009)
Electronic Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Settlement Conference held on 6/19/2009. Court conducts a settlement conference with the parties. Court seals the proceeding. Court orders the parties to confer and report under seal regarding settlement by 7/31/2009. Further conference set for 8/13/2009 at 3:00 PM. (Court Reporter: Romanow.)(Attorneys present: Robert Flieschner, Richard Glassman, James Pingeon, Jim Rollins,Karen Talley, David Yamin, Nancy White, William Saltzman, Cheryl Grant, Charles Anderson) (O'Leary, Dennis) (Entered: 06/19/2009)
102 Chief Judge Mark L. Wolf: ORDER entered. As stated at the conference on June 19, 2009, it is herebyORDERED that: 1. Defendant's Motion to File Their Confidential SettlementMemorandum Under Seal (Docket No. 95), and the Joint Motion to FileStatement of Disputed Issues Under Seal (Docket No. 98) are ALLOWED.2. Plaintiff's Motion for Permission for One of its Experts to attend and Participate in the Settlement Conference (Docket No. 93) is MOOT.3. By July 31, 2009, the parties shall confer and report regarding the outstanding issues discussed at the June 19, 2009 conference. Because it relates to settlement, the report shall be filed under seal. 4. A conference will he held on August 13, 2009, at 3:00 p.m. The parties or counsel with full settlement authority shall attend.(O'Leary, Dennis) (Entered: 06/19/2009)

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07/31/2009 07/31/2009 08/07/2009 08/12/2009 08/12/2009 08/12/2009 08/27/2009 09/11/2009
09/11/2009
09/28/2009 09/28/2009 11/06/2009 11/06/2009 12/29/2009
01/15/2010 01/15/2010

103 Sealed Document. (Boyce, Kathy) (Entered: 07/31/2009)
104 Sealed Document. (Boyce, Kathy) (Entered: 08/03/2009)
105 SEALED MOTION (Attachments: # 1 Exhibit A)(Boyce, Kathy) (Entered: 08/11/2009)
106 SEALED MOTION by Harold W. Clarke, University of Massachusetts Correctional Health Program, Massachusetts Department of Correction, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall.(Boyce, Kathy) (Entered: 08/12/2009)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 106 Sealed Motion. ALLOWED. The settlement conference scheduled for 8/13/2009 at 3:00 pm is hereby continued. The court will issue a notice once it has on a new date for the settlement conference. (O'Leary, Dennis) (Entered: 08/12/2009)
107 Sealed Document. (Boyce, Kathy) (Entered: 08/13/2009)
ELECTRONIC NOTICE of Hearing : Settlement Conference set for 9/11/2009 02:15 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered: 08/27/2009)
Electronic Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Settlement Conference held on 9/11/2009. Parties' experts Dr. Metzner and Dr. Burn participate by telephone. Court summarizes the latest status report with the parties. Court hears from the parties regarding the current status of their talks and engages them in settlement talks. Court gives the parties four options to mull over while it reconvenes in another case. Court resumes with counsel and the experts via telephone. Parties give their respective positions regarding the four options. Court gives the parties to 11/6/2009 to submit a further status report. (Attorneys present: Fleischner, Glassman, Pingeon, Rollins, Murphy, Talley, White, Saltzman, Anderson, Grant) (O'Leary, Dennis) (Entered: 09/11/2009)
108 Chief Judge Mark L. Wolf: ORDER entered. As stated at the conference on September 11, 2009, it ishereby ORDERED that, by November 6, 2009: 1. The parties shall confer and report whether they request that the stay in this case continue for the purpose of continued settlement negotiations. 2. If the parties do not request that the stay continue, they shall file, jointly if possible but separately if necessary,a proposed Scheduling Order in the attached form.( Status Report due by 11/6/2009.) (Attachments: # 1 Blank Scheduling Order)(O'Leary, Dennis) (Entered: 09/11/2009)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 95 Motion to Seal Document (O'Leary, Dennis) (Entered: 09/28/2009)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 105 Sealed Motion (O'Leary, Dennis) (Entered: 09/28/2009)
109 Recommendations for Scheduling Order by Defendants. (Anderson, Charles) (Entered: 11/06/2009)
110 Recommendations for Scheduling Order − Plaintiff's Request to Lift the Stay of Discovery and Proposed Amended Scheduling Order. (Attachments: # 1 Text of Proposed Order)(Hickey, Alison) (Entered: 11/06/2009)
111 Chief Judge Mark L. Wolf: ORDER entered. It is hereby ORDERED that: 1. The parties shall, by January 15, 2010, file brief statements in support of their respective proposed schedules, which, among other things, identify foreseeable discovery and other issues. 2. A hearing will be held on January 25, 2010, at 3:00 p.m. The court expects that the stay concerning discovery will be lifted after the hearing.(Hearing set for 1/25/2010 03:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf.)(Boyce, Kathy) (Entered: 12/29/2009)
112 MOTION to Seal Document Memorandum in Support of Defendants' Proposed Amended Scheduling Order (Under Seal) by Harold W. Clarke, Massachusetts Department of Correction, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall.(Grant, Sheryl) (Entered: 01/15/2010)
113 STATEMENT OF COUNSEL re 111 Order, Set Hearings,,,, Plaintiff's Brief Statement in Support of Request to Lift the Stay of Discovery and Proposed Amended Scheduling

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01/15/2010 01/19/2010 01/25/2010 01/25/2010 01/26/2010 02/08/2010 02/09/2010 02/10/2010
02/11/2010 03/15/2010
03/15/2010 04/26/2010
04/27/2010

Order by Disability Law Center, Inc.. (Attachments: # 1 Text of Proposed Order)(Hickey, Alison) (Entered: 01/15/2010)
114 Sealed Document. (Boyce, Kathy) (Entered: 01/20/2010)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 112 Motion to Seal Document (O'Leary, Dennis) (Entered: 01/19/2010)
115 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Scheduling Conference held on 1/25/2010. (Court Reporter: Romanow.) (O'Leary, Dennis) (Entered: 01/26/2010)
116 Chief Judge Mark L. Wolf: ORDER entered. ( Status Report due by 2/8/2010., Scheduling Conference set for 2/18/2010 04:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf.)(O'Leary, Dennis) (Entered: 01/26/2010)
117 MEMORANDUM in Support of 109 Defendants' Proposed Amended Scheduling Order (Under Seal) Redacted Version filed by Harold W. Clarke, Massachusetts Department of Correction, James Bender, Veronica Madden, John Jr. Marshall, Timothy Hall. (Anderson, Charles) Docket text Modified on 1/27/2010 to correct the link to Document No. 109 (Boyce, Kathy). (Entered: 01/26/2010)
118 Recommendations for Scheduling Order Submitted Jointly by the Parties. (Attachments: # 1 Text of Proposed Order)(Hickey, Alison) (Entered: 02/08/2010)
Chief Judge Mark L. Wolf: ELECTRONIC ENDORSEMENT re 118 Recommendations for Scheduling Order. The stay of this case is hereby LIFTED and the parties' proposed Amended Scheduling Order shall enter. The scheduling conference previously scheduled for February 18, 2010 at 4:00 PM is hereby CANCELED. (O'Leary, Dennis) (Entered: 02/10/2010)
119 Chief Judge Mark L. Wolf: ORDER entered. SCHEDULING ORDER: Final Pretrial Conference set for 5/2/2011 03:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. Status Conference set for 3/28/2011 03:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. Amended Pleadings due by 5/7/2010. Discovery to be completed by 3/11/2011. Jury Trial set for 6/6/2011 09:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. Status Report due by 3/25/2011.(O'Leary, Dennis) (Additional attachment(s) added on 2/11/2010: # 1 Scheduling Order w/electronic signature) (O'Leary, Dennis). (Entered: 02/10/2010)
Notice of correction to docket made by Court staff. Correction: Docket Entry no. 119 corrected because: Added pdf which contains the electronic signature (O'Leary, Dennis) (Entered: 02/11/2010)
121 Transcript of Status Conference held on January 25, 2010, before Judge Wolf. Court Reporter: Richard H. Romanow at bulldog@richromanow.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 4/5/2010. Redacted Transcript Deadline set for 4/15/2010. Release of Transcript Restriction set for 6/14/2010. (Scalfani, Deborah) (Entered: 03/15/2010)
122 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 03/15/2010)
123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents by Disability Law Center, Inc.. (Attachments: # 1 Exhibit Plaintiff's Renewed Motion to Compel Production of Documents, # 2 Exhibit Plaintiff's Memorandum of Law in Support of its Renewed Motion to Compel Production of Documents, # 3 Exhibit Affidavit of Alison Hickey Silveira In Support of Plaintiffs Renewed Motion to Compel Production of Documents)(Hickey, Alison) (Entered: 04/26/2010)
ELECTRONIC NOTICE issued requesting courtesy copy for 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel

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05/10/2010
07/19/2010 07/21/2010 07/23/2010 07/27/2010
07/28/2010 07/28/2010 08/02/2010
08/06/2010 08/06/2010 08/06/2010 08/11/2010

Production of Documents. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 5/3/2010. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (O'Leary, Dennis) (Entered: 04/27/2010)
124 MEMORANDUM in Opposition re 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents filed by University of Massachusetts Correctional Health Program. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bello, James) (Entered: 05/10/2010)
ELECTRONIC NOTICE Setting Hearing on Motion 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents : Motion Hearing set for 8/11/2010 03:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered: 07/19/2010)
125 NOTICE of Appearance by Carol E. Head on behalf of Disability Law Center, Inc. (Head, Carol) (Entered: 07/21/2010)
126 Joint MOTION for Protective Order Regarding Production of Certain Documents by Disability Law Center, Inc.. (Attachments: # 1 Proposed Protective Order)(Head, Carol) (Entered: 07/23/2010)
127 Chief Judge Mark L. Wolf: ORDER entered granting 126 Motion for Protective Order...By August 3, 2010: 1. The parties shall file supplemental memoranda addressing how this protective order affects the currently pending Plaintiff's Motion to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter its Renewed Motion to Compel Production of Documents (Docket No. 123), particularly with regard to the requirements of the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of the psychotherapist−patient privilege. 2. The plaintiff shall clarify the scope of the discovery it seeks from the University of Massachusetts Correctional Health Program. (Boyce, Kathy) (Entered: 07/27/2010)
128 Assented to MOTION for Extension of Time to August 6, 2010 to File Supplemental Memoranda by Disability Law Center, Inc..(Head, Carol) (Entered: 07/28/2010)
Chief Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 128 Motion for Extension of Time (O'Leary, Dennis) (Entered: 07/28/2010)
ELECTRONIC NOTICE Resetting (as to time only) Hearing on Motion 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents :The Motion Hearing is now set for 8/11/2010 02:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered: 08/02/2010)
129 MEMORANDUM OF LAW by University of Massachusetts Correctional Health Program to 124 Memorandum in Opposition to Motion,. (Bello, James) (Entered: 08/06/2010)
130 MEMORANDUM in Support re 126 Joint MOTION for Protective Order Regarding Production of Certain Documents Made in Response to the Court's Order of July 27, 2010 filed by James Bender, Harold W. Clarke, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Anderson, Charles) (Entered: 08/06/2010)
131 Supplemental MEMORANDUM in Support re 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents filed by Disability Law Center, Inc.. (Attachments: # 1 Tab A, # 2 Tab B, # 3 Tab C)(Head, Carol) (Entered: 08/06/2010)
132 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Motion Hearing held on 8/11/2010 re 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 17 of 33

08/12/2010 08/12/2010
08/16/2010
08/16/2010 08/18/2010 08/26/2010 08/27/2010 08/27/2010 08/27/2010 08/30/2010 09/03/2010 09/10/2010
09/20/2010

Plaintiffs' Renewed Motion to Compel Production of Documents filed by Disability Law Center, Inc.. (Court Reporter: Richard Romanow at bulldog@richromanow.com.) (O'Leary, Dennis) (Entered: 08/12/2010)
133 Chief Judge Mark L. Wolf: PROTECTIVE ORDER, ENTERED. (Attachments: # 1 Agreement to be Bound by Stipulated Protective Order) (Boyce, Kathy) (Entered: 08/12/2010)
134 Chief Judge Mark L. Wolf: ORDER entered granting 123 Motion for Order. The Plaintiff's Motion to Lift the Stay of Discovery Between Plaintiff and University of of Massachusetts Correctional Health Program and Enter Its Renewed Motion to Compel Production of Documents (Docket No. 123) is ALLOWED to the extent that the stay of discovery between DLC and UMCHP is LIFTED... (Boyce, Kathy) (Entered: 08/12/2010)
135 Transcript of Motion Hearing held on August 11, 2010, before Chief Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 9/7/2010. Redacted Transcript Deadline set for 9/16/2010. Release of Transcript Restriction set for 11/15/2010. (Scalfani, Deborah) (Entered: 08/16/2010)
136 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 08/16/2010)
137 NOTICE of Withdrawal of Appearance by Anthony E. Abeln (Abeln, Anthony) (Entered: 08/18/2010)
138 AFFIDAVIT of William D. Saltzman by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Saltzman, William) (Entered: 08/26/2010)
139 MEMORANDUM in Opposition re 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents (Non−Party) filed by University of Massachusetts Correctional Health Program. (Bello, James) (Entered: 08/27/2010)
140 Document disclosure by University of Massachusetts Correctional Health Program.(Bello, James) (Entered: 08/27/2010)
141 AFFIDAVIT in Support re 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents (Dyana Nickl) filed by University of Massachusetts Correctional Health Program. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bello, James) (Entered: 08/27/2010)
Un−Redacted and Redacted boxes of Non−Party University of Massachusetts Correctional Health Program inmate mental health records, received. (Boyce, Kathy) (Entered: 08/30/2010)
142 REPLY to Response to 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents filed by Disability Law Center, Inc.. (Head, Carol) (Entered: 09/03/2010)
143 REPLY to Response to 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents filed by University of Massachusetts Correctional Health Program. (Quinn, Christopher) (Main Document 143 replaced on 9/24/2010) (Boyce, Kathy). Modified on 9/24/2010 to replace document with the document e−signed by filer (Boyce, Kathy). (Entered: 09/10/2010)
144 STATUS REPORT of Disability Law Center and University of Massachusetts Correctional Health Program by Disability Law Center, Inc.. (Head, Carol) (Entered: 09/20/2010)

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 18 of 33

09/24/2010 10/01/2010 11/11/2010 11/11/2010 11/11/2010 11/17/2010 11/17/2010 11/18/2010
11/18/2010 11/23/2010 11/23/2010
11/24/2010 12/01/2010 12/01/2010 12/15/2010

145 NOTICE of Appearance by Christopher Quinn on behalf of University of Massachusetts Correctional Health Program (Quinn, Christopher) (Entered: 09/24/2010)
146 Chief Judge Mark L. Wolf: ORDER entered. REFERRING CASE to Magistrate Judge Jennifer C. Boal Referred for: DISCOVERY ONLY (O'Leary, Dennis) (Entered: 10/01/2010)
147 MOTION for Protective Order and for Costs to Comply with Plaintiff's Subpoena by MHM Services, Inc..(Hughes, Stephen) (Entered: 11/11/2010)
148 MEMORANDUM in Support re 147 MOTION for Protective Order and for Costs to Comply with Plaintiff's Subpoena filed by MHM Services, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Hughes, Stephen) (Entered: 11/11/2010)
149 EXHIBIT re 148 Memorandum in Support of Motion, List of Exhibits by MHM Services, Inc.. (Hughes, Stephen) (Entered: 11/11/2010)
150 SEALED DOCUMENT. (Boyce, Kathy) (Entered: 11/17/2010)
151 Emergency MOTION to Compel Discovery Pursuant to FRCP 34 to Enter Land by Disability Law Center, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Head, Carol) (Entered: 11/17/2010)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered reserving ruling on 151 Motion to Compel. The Court strongly suggests that the parties attempt to resolve the scheduling issues. If the parties are able to resolve this dispute, they shall file a joint report to that effect by Monday, November 22, 2010 at 12:00 p.m. If the parties are unable to resolve the issues raised by the motion to compel, Defendant Massachusetts Department of Correction shall file its opposition to the motion to compel by Monday, November 22, 2010 at 12:00 p.m. and the Court shall hear oral argument on Tuesday, November 23, 2010 at 1:00 p.m. (LaRoche, Donald) (Entered: 11/18/2010)
ELECTRONIC NOTICE Setting Hearing on Motion 151 Emergency MOTION to Compel Discovery Pursuant to FRCP 34 to Enter Land : Motion Hearing set for 11/23/2010 01:00 PM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 11/18/2010)
152 JOINT STATEMENT of counsel Regarding Emergency Motion to Compel Discovery Pursuant to Fed. R. Civ. P. 34 to Enter Upon Land. (Head, Carol) (Entered: 11/23/2010)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered re: 151 Emergency Motion to Compel. Based on the Parties Joint Report (Docket No. 152), the Court DENIES the Emergency Motion to Compel Discovery as moot. Specifically, the parties have reported that they have been able to resolve the issues raised by the subject motion. (LaRoche, Donald) (Entered: 11/26/2010)
153 MOTION for Extension of Time to December 1, 2010 to File Response/Reply as to 147 MOTION for Protective Order and for Costs to Comply with Plaintiff's Subpoena, 148 Memorandum in Support of Motion, by Disability Law Center, Inc..(Hickey, Alison) (Entered: 11/24/2010)
154 Opposition re 147 MOTION for Protective Order and for Costs to Comply with Plaintiff's Subpoena filed by Disability Law Center, Inc.. (Hickey, Alison) (Entered: 12/01/2010)
155 AFFIDAVIT in Opposition re 147 MOTION for Protective Order and for Costs to Comply with Plaintiff's Subpoena [Affidavit of Carol E. Head] filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Hickey, Alison) (Entered: 12/01/2010)
ELECTRONIC NOTICE Setting Status conference/Hearing on Motion 147 MOTION for Protective Order and for Costs to Comply with Plaintiff's Subpoena : Status Conference/Motion Hearing set for 1/5/2011 10:00 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. Counsels should also be prepared to discuss any outstanding issues with respect to the third party discovery of the University of

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 19 of 33

12/29/2010 12/29/2010 12/30/2010
12/30/2010 01/04/2011 01/04/2011 01/04/2011 01/05/2011
01/05/2011
01/05/2011 01/05/2011
01/07/2011 01/11/2011 01/12/2011 01/14/2011

Massachusetts Correctional Health Program.(LaRoche, Donald) (Entered: 12/15/2010)
158 Cover Letter from Andrew W. Kilburn enclosing Status Report from S.B.C.C. (Boyce, Kathy) (Entered: 12/30/2010)
159 STATUS REPORT by Andrew W. Kilburn, FILED. (Boyce, Kathy) (Entered: 12/30/2010)
156 Transcript of Lobby Conference held on September 5, 2007, before Chief Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 1/20/2011. Redacted Transcript Deadline set for 1/31/2011. Release of Transcript Restriction set for 3/30/2011. (Scalfani, Deborah) (Entered: 12/30/2010)
157 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 12/30/2010)
160 MOTION for Protective Order by Disability Law Center, Inc..(Hickey, Alison) (Entered: 01/04/2011)
161 AFFIDAVIT of Alison Hickey Silveira in Support re 160 MOTION for Protective Order filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hickey, Alison) (Entered: 01/04/2011)
162 MEMORANDUM in Support re 160 MOTION for Protective Order filed by Disability Law Center, Inc.. (Hickey, Alison) (Entered: 01/04/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Motion Hearing held on 1/5/2011 re 147 MOTION for Protective Order and for Costs to Comply with Plaintiff's Subpoena filed by MHM Services, Inc. The court heard arguments from the parties and took the matter under advisement. (Court Reporter: Digital Recording.)(Attorneys present: Head,Hickey,and Fleischner for the plaintiff and Bello, Saltzman, Hughes, and Grant for the defts) (LaRoche, Donald) (Entered: 01/05/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered, reserving ruling on re: 147 Motion for Protective Order and for Costs to Comply with Subpoena. As discussed at the hearing today, the Court encourages the parties to attempt to resolve the dispute as to the cost of producing the documents in MHMs possession. The parties are to contact Donald LaRoche (617−748−9238) on or before January 12, 2011 to report whether they were able to come to a resolution of this matter. (LaRoche, Donald) (Entered: 01/05/2011)
ELECTRONIC NOTICE Setting Hearing on Motion 160 MOTION for Protective Order : Motion Hearing set for 2/1/2011 11:30 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 01/05/2011)
163 Magistrate Judge Jennifer C. Boal: ORDER entered. re 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents filed by Disability Law Center, Inc. (LaRoche, Donald) (Entered: 01/05/2011)
164 MOTION for Extension of Time to Jan 12, 2011 to File /Comply with Jan. 5, 2011 Court Order by Disability Law Center, Inc..(Head, Carol) (Entered: 01/07/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 164 Motion for Extension of Time to File/Comply with January 5, 2011 Court Order to 1/12/11. (LaRoche, Donald) (Entered: 01/11/2011)
165 STATUS REPORT on production of certain documents by UMCHP by Disability Law Center, Inc.. (Head, Carol) (Entered: 01/12/2011)
166 Magistrate Judge Jennifer C. Boal: ORDER entered granting in part and denying in part 147 Motion for Protective Order. (1) MHM shall produce all documents responsive to the subpoena and a privilege log for any withheld documents on that

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 20 of 33

01/21/2011
01/21/2011 01/28/2011 01/28/2011
01/29/2011 02/01/2011
02/04/2011
02/07/2011 02/18/2011 02/25/2011 02/28/2011 02/28/2011

basis within two weeks of the date of this order; (2) DLC shall reimburse MHM for the reasonable costs of copying the documents responsive to the subpoena at the rate of ten cents per page; and (3) MHM shall produce a Rule 30(b)(6) corporate representative for a deposition pursuant to the subpoena on a date mutually agreeable to the parties no more than one month after MHM produces documents pursuant to this order. (LaRoche, Donald) (Entered: 01/14/2011)
167 Magistrate Judge Jennifer C. Boal: ORDER entered. re 123 MOTION for Order to Lift the Stay of Discovery Between Plaintiff and University of Massachusetts Correctional Health Program and Enter Plaintiffs' Renewed Motion to Compel Production of Documents filed by Disability Law Center, Inc. Within one week of the date of this decision: (1) UMCHP shall produce an unredacted copy of the Records of the inmate for which DLC has provided a next of kin release; and (2) UMCHP shall produce a copy of the remaining redacted Records.(LaRoche, Donald) (Entered: 01/21/2011)
168 MEMORANDUM in Opposition re 160 MOTION for Protective Order filed by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Attachments: # 1 Exhibit DLC Response to Interrogatories)(Saltzman, William) (Entered: 01/21/2011)
169 MOTION for Leave to File a Reply in Support of Plaintiff Disability Law Center, Inc.'s Motion for a Protective Order by Disability Law Center, Inc.. (Attachments: # 1 Proposed Reply)(Head, Carol) (Entered: 01/28/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 169 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (LaRoche, Donald) (Entered: 01/28/2011)
170 REPLY to Response to 160 MOTION for Protective Order filed by Disability Law Center, Inc.. (Head, Carol) (Entered: 01/29/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Motion Hearing held on 2/1/2011 re 160 MOTION for Protective Order filed by Disability Law Center, Inc. The court heard arguments from the parties and took the matter under advisement. (Court Reporter: Digital Recording.)(Attorneys present: Head, Pingeon, and Glassman for the plaintiffs and Saltzman, Anderson, and Grant for the defendants) (LaRoche, Donald) (Entered: 02/01/2011)
171 Magistrate Judge Jennifer C. Boal: ORDER entered granting 160 Motion for Protective Order. The Court ALLOWS DLCs motion for a protective order without prejudice to Defendants right to seek the information through contention interrogatories or expert discovery. DLC will not be required to produce any Rule 30(b)(6) witness in response to the Defendants notice of deposition. (LaRoche, Donald) (Entered: 02/04/2011)
172 MOTION for Extension of Time to Make Expert Disclosures and for a Scheduling Conference by Disability Law Center, Inc..(Hickey, Alison) (Entered: 02/07/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 172 Motion for Scheduling Conference. Scheduling Conference set for 3/2/2011 02:00 PM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (Rynne, Michelle) (Entered: 02/18/2011)
173 Assented to MOTION for Order to Concerning Production of Documents in Response to Plaintiff's Subpoena by MHM Services, Inc.. (Attachments: # 1 Exhibit Assented to Motion for Court Order)(Hughes, Stephen) (Entered: 02/25/2011)
174 Emergency MOTION to Compel Production of Prisoner Records by Disability Law Center, Inc..(Hickey, Alison) (Entered: 02/28/2011)
175 MEMORANDUM in Support re 174 Emergency MOTION to Compel Production of Prisoner Records filed by Disability Law Center, Inc.. (Hickey, Alison) (Entered: 02/28/2011)

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 21 of 33

02/28/2011 02/28/2011 02/28/2011 02/28/2011 03/01/2011 03/01/2011 03/02/2011
03/11/2011 03/11/2011 03/14/2011 03/15/2011

176 AFFIDAVIT of Alison Hickey Silveira in Support re 174 Emergency MOTION to Compel Production of Prisoner Records filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Hickey, Alison) (Entered: 02/28/2011)
177 EXHIBIT re 176 Affidavit in Support of Motion, (additional exhibits − E, F, G−1) by Disability Law Center, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Hickey, Alison) (Entered: 02/28/2011)
178 EXHIBIT re 176 Affidavit in Support of Motion, (additional exhibits − G−2) by Disability Law Center, Inc.. (Hickey, Alison) (Entered: 02/28/2011)
179 EXHIBIT re 176 Affidavit in Support of Motion, (additional exhibits − G−3, H, I, J, K, L, M) by Disability Law Center, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Hickey, Alison) (Entered: 02/28/2011)
ELECTRONIC NOTICE issued requesting courtesy copy for 176 Affidavit in Support of Motion, 179 Exhibit, 177 Exhibit, 178 Exhibit. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 3/1/2011. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (LaRoche, Donald) (Entered: 03/01/2011)
180 STATUS REPORT of the Parties by Disability Law Center, Inc.. (Head, Carol) (Entered: 03/01/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Scheduling Conference held on 3/2/2011. The Court heard oral arguments regarding DLCs motion to extend the deadline for expert disclosures (Docket No. 172) and MHMs motion for an order concerning production of documents in response to plaintiffs subpoena to MHM Services, Inc. (Docket No. 174). The parties will continue to work cooperatively on outstanding discovery issues. By March 15, 2011, the parties will file a joint status report regarding all outstanding discovery matters. The Court will hold oral argument on DLCs motion to compel documents (Docket No. 174) on March 17, 2011 at 10:00 a.m. DOCs response to DLCs motion to compel shall be filed on or before March 14, 2011 and DLCs reply, if any, shall be filed on or before noon on March 16, 2011. (Status Conference set for 3/17/2011 10:00 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal.). (Court Reporter: Digital Recording.)(Attorneys present: Head, Hickey, and Rollins for the plaintiffs and Saltzman, Anderson, and Grant, Hughes for the defendants) (LaRoche, Donald) (Entered: 03/02/2011)
181 MOTION for Leave to File an Opposition in Excess of Twenty Pages by James Bender, Harold W. Clarke, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction.(Anderson, Charles) (Entered: 03/11/2011)
182 Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 181 Motion for Leave to File Document in excess of 20 pages. Motion allowed only to the extent that the document shall not exceed 30 pages. (Rynne, Michelle) Docket Text Modified on 3/17/2011 for the docket to reflect that the order was electronic with no document attached but was inadvertently given a document number of 182 (Boyce, Kathy). (Entered: 03/11/2011)
183 Opposition re 174 Emergency MOTION to Compel Production of Prisoner Records filed by James Bender, Harold W. Clarke, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Attachments: # 1 Exhibit Exhibits A−F, # 2 Exhibit Exhibits G−N, # 3 Exhibit Exhibits O−Q, # 4 Exhibit Exhibits R−U, # 5 Exhibit Exhibit V, # 6 Exhibit Exhibit W)(Anderson, Charles) (Entered: 03/14/2011)
ELECTRONIC NOTICE issued requesting courtesy copy for 183 Opposition to Motion to Compel Production of Prisoner Records filed by James Bender, Harold W. Clarke, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by the CLOSE OF BUSINESS TODAY, MARCH 15, 2011. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (LaRoche, Donald) (Entered: 03/15/2011)

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 22 of 33

03/15/2011 03/16/2011 03/16/2011 03/17/2011 03/17/2011
03/18/2011
03/23/2011 03/24/2011 03/25/2011 03/25/2011 03/29/2011 03/29/2011 03/31/2011 04/05/2011 04/05/2011 04/05/2011

184 STATUS REPORT of the Parties by Disability Law Center, Inc.. (Head, Carol) (Entered: 03/15/2011)
185 REPLY to Response to 174 Emergency MOTION to Compel Production of Prisoner Records filed by Disability Law Center, Inc.. (Silveira, Alison) (Entered: 03/16/2011)
186 Supplemental AFFIDAVIT in Support re 174 Emergency MOTION to Compel Production of Prisoner Records filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit)(Silveira, Alison) (Entered: 03/16/2011)
Notice of correction to docket made by Court staff. Correction: Endorsed Order entered on 3/11/11 granting Doc No. 181 modified for the docket to reflect that the order was electronic but inadvertently given a document No., 182 (Boyce, Kathy) (Entered: 03/17/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Status Conference held on 3/17/2011. The court heard arguments from the parties. (Court Reporter: Digital Recording.)(Attorneys present: Head, Hickey−Silveira, and Fleischner for the plaintiffs and Saltzman, Anderson, and Grant, Hughes for the defendants) (LaRoche, Donald) (Entered: 03/22/2011)
187 Magistrate Judge Jennifer C. Boal: ORDER entered granting in part and denying in part 174 Motion to Compel. DOC shall produce all individual prisoner records responsive to Request No. 3 of the Rule 34 Request (for whom releases have been submitted to DOC in accordance with the parties prior agreements) on a rolling basis. Production of these records must be completed by April 15, 2011. DLC shall reimburse DOC for the costs of copying the documents at the rate of 20 cents per page. With each production, DOC shall provide DLC with an invoice reflecting copying charges for that production at the rate of 20 cents per page. DLC shall pay each invoice within one week of the receipt of the production and corresponding invoice. (LaRoche, Donald) (Entered: 03/18/2011)
188 Status Report and Order (LaRoche, Donald) Modified on 3/29/2011 for the docket to reflect that the document is a scheduling order (Boyce, Kathy). (Entered: 03/23/2011)
189 Joint MOTION to Amend Protective Order Dated August 12, 2010 by Plaintiff Disability Law Center and by MHM Services, Inc.. (Attachments: # 1 Exhibit Protective Order, # 2 Exhibit Protective Order)(Hughes, Stephen) (Entered: 03/24/2011)
ELECTRONIC NOTICE Canceling a Hearing. Hearing canceled: Status conference (See Docket No. 119) previously set for 3/28/2011 03:00 PM is canceled. (Hohler, Daniel) (Entered: 03/25/2011)
190 STATUS REPORT of the Parties by Disability Law Center, Inc.. (Head, Carol) (Entered: 03/25/2011)
Set Scheduling Order Deadlines: Discovery to be completed by 6/6/2011 (Boyce, Kathy) (Entered: 03/29/2011)
Set Deadline Expert Witness List Discovery due by 8/6/2011. (Boyce, Kathy) (Entered: 03/29/2011)
191 MOTION for Extension of Time to April 5, 2011 to File Its Motion to Compel Production of Documents from Third Party MHM Services Inc. Pursuant to a Subpoena by Disability Law Center, Inc..(Head, Carol) (Entered: 03/31/2011)
192 MOTION to Compel Production of Documents From Third Party MHM Services, Inc. Pursuant to a Subpoena by Disability Law Center, Inc..(Head, Carol) (Entered: 04/05/2011)
193 MEMORANDUM in Support re 192 MOTION to Compel Production of Documents From Third Party MHM Services, Inc. Pursuant to a Subpoena filed by Disability Law Center, Inc.. (Head, Carol) (Entered: 04/05/2011)
194 DECLARATION re 192 MOTION to Compel Production of Documents From Third Party MHM Services, Inc. Pursuant to a Subpoena by Disability Law Center, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Head, Carol) (Entered: 04/05/2011)

Case: 1:07-cv-10463 As of: 03/23/2018 02:47 PM EDT 23 of 33

04/06/2011 04/19/2011 04/19/2011 04/20/2011 05/05/2011 05/05/2011
05/06/2011 05/06/2011 05/06/2011 05/11/2011
05/12/2011
05/16/2011 05/17/2011

Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting nunc pro tunc 191 Motion for Extension of Time to April 5, 2011 to File Its Motion to Compel Production of Documents from Third Party MHM Services Inc. Pursuant to a Subpoena by Disability Law Center, Inc.(Head, Carol) (LaRoche, Donald) (Entered: 04/06/2011)
195 Opposition re 192 MOTION to Compel Production of Documents From Third Party MHM Services, Inc. Pursuant to a Subpoena filed by MHM Services, Inc.. (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Deposition Sheet)(Hughes, Stephen) (Entered: 04/19/2011)
ELECTRONIC NOTICE Setting Hearing on Motion 192 MOTION to Compel Production of Documents From Third Party MHM Services, Inc. Pursuant to a Subpoena : Motion Hearing set for 5/5/2011 11:15 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 04/19/2011)
ELECTRONIC NOTICE Canceling a Hearing. The Pretrial conference scheduled for 5/2/2011 and Jury trial scheduled for 6/6/2011 have been canceled. No new dates have been set. (Hohler, Daniel) (Entered: 04/20/2011)
196 STATUS REPORT by Disability Law Center, Inc.. (Silveira, Alison) (Entered: 05/05/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Motion Hearing held on 5/5/2011 re 192 MOTION to Compel Production of Documents From Third Party MHM Services, Inc. Pursuant to a Subpoena filed by Disability Law Center, Inc. The court heard arguments from the parties and took the matter under advisement. (Court Reporter: Digital Recording.)(Attorneys present: Head,Silveira, and Fleischner for the plaintiffs and Hughes and Saltzman for the defendants) (LaRoche, Donald) (Entered: 05/05/2011)
197 MOTION to Compel Production of Documents by Disability Law Center, Inc..(Silveira, Alison) (Entered: 05/06/2011)
198 MEMORANDUM in Support re 197 MOTION to Compel Production of Documents filed by Disability Law Center, Inc.. (Silveira, Alison) (Entered: 05/06/2011)
199 AFFIDAVIT in Support re 197 MOTION to Compel Production of Documents. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K)(Silveira, Alison) (Entered: 05/06/2011)
ELECTRONIC NOTICE issued requesting courtesy copy for 199 Affidavit in Support re 197 MOTION to Compel Production of Documents. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K). Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by close of business on 5−12−2011. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (LaRoche, Donald) (Entered: 05/11/2011)
ELECTRONIC NOTICE Setting Hearing on Motion 197 MOTION to Compel Production of Documents : Motion Hearing set for 5/17/2011 11:15 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. The Court recognizes that defendants have not yet filed a response to DLCs motion to compel and that the time for doing so expires on Friday, May 20, 2011. Defendants may file a written response prior to the hearing if they so wish but they are not required to do so. (LaRoche, Donald) (Entered: 05/12/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting nunc pro tunc 153 Motion for Extension of Time to File Response/Reply (LaRoche, Donald) (Entered: 05/16/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Motion Hearing held on 5/17/2011 re 197 MOTION to Compel Production of Documents filed by Disability Law Center, Inc. Counsel for defendants was not

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05/19/2011 05/19/2011 05/19/2011
05/25/2011
05/27/2011 05/27/2011
05/27/2011 05/27/2011 06/14/2011 06/14/2011 06/16/2011

prepared to discuss the merits of plaintiffs' motion and requested an adjournment. Accordingly, the hearing will be held on Wednesday, May 25 at 11:00 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (Court Reporter: Digital Recording.)(Attorneys present: Head and Silveira for the plaintiffs and Saltzman for the defendants) (LaRoche, Donald) (Entered: 05/17/2011)
200 MOTION for Extension of Time to Complete Discovery by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction.(Saltzman, William) Modified on 6/29/2011: hearing is on for 6/30/11 (LaRoche, Donald). (Entered: 05/19/2011)
201 RESPONSE to Motion re 200 MOTION for Extension of Time to Complete Discovery filed by Disability Law Center, Inc.. (Silveira, Alison) (Entered: 05/19/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered. re 200 MOTION for Extension of Time to Complete Discovery filed by Harold W. Clarke, Kathleen Dennehy, Veronica Madden, Timothy Hall, John Jr. Marshall, Massachusetts Department of Correction, James Bender. The scheduled conference on Wednesday, May 25, 2011 at 11:00 a.m. will go forward and at that time the parties should be prepared to discuss the issues raised by defendants motion for an extension of time to complete discovery. Defendants motion is granted only at this time with respect to the time by which defendants must file their opposition to DLCs motion to compel (Docket No. 197). Defendants need not file a response by this Friday, May 20, 2011 and a response date will be set at the conference. (LaRoche, Donald) (Entered: 05/19/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Motion Hearing held on 5/25/2011 re 197 MOTION to Compel Production of Documents filed by Disability Law Center, Inc. The parties reported the status of the case. The court heard arguments from the parties on the Motion for Extension of Time to Complete Discovery and took the matter under advisement. (Court Reporter: Digital Recording.)(Attorneys present: Head, Silveira, and Rollins for the plaintiffs and Saltzman for the defendants) (LaRoche, Donald) Modified on 5/26/2011 to correct the motion heard. (LaRoche, Donald). (Entered: 05/26/2011)
202 Magistrate Judge Jennifer C. Boal: ORDER entered granting 192 Motion to Compel. MHM shall produce all documents subject to DLCs motion to compel without redactions based on relevance or the self−critical examination privilege within three weeks of the date of this order. (LaRoche, Donald) (Entered: 05/27/2011)
203 Magistrate Judge Jennifer C. Boal: ORDER entered. re 200 MOTION for Extension of Time to Complete Discovery filed by Harold W. Clarke, Kathleen Dennehy, Veronica Madden, Timothy Hall, John Jr. Marshall, Massachusetts Department of Correction, James Bender. The defendants shall file their opposition to DLCs motion to compel production of documents no later than June 17, 2011. DLC shall file its reply brief, if any, no later than June 24, 2011. The Court will hear oral argument on DLCs motion to compel on June 30, 2011 at 11:30 a.m. SEE ATTACHED ORDER. (LaRoche, Donald) (Entered: 05/27/2011)
ELECTRONIC NOTICE Setting Hearing on Motion 200 MOTION for Extension of Time to Complete Discovery : Motion Hearing set for 6/30/2011 11:30 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 05/27/2011)
204 STATUS REPORT by Magistrate Judge Jennifer C. Boal (LaRoche, Donald) (Entered: 05/27/2011)
Reset Scheduling Order Deadlines: Fact Discovery to be completed by 7/21/2011; Expert discovery deadline; 9/20/11 (Boyce, Kathy) (Entered: 06/14/2011)
Reset Deadline as to 197 MOTION to Compel Production of Documents.( Response due by 7/5/2011), (Boyce, Kathy) Docket entry Modified on 6/16/2011 for the docket to reflect that this deadline was set in error and the correct deadlines have been set. (Boyce, Kathy). (Entered: 06/14/2011)
Set/Reset Deadlines as to 197 MOTION to Compel Production of Documents Response due by 6/17/2011; Reply brief due by 6/24/2011. (Boyce, Kathy) (Entered:

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06/17/2011 06/24/2011 06/27/2011 06/29/2011 06/30/2011
07/01/2011 07/07/2011 07/13/2011 07/13/2011 07/14/2011
07/19/2011 07/26/2011 07/27/2011

06/16/2011)
205 Opposition re 197 MOTION to Compel Production of Documents filed by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Attachments: # 1 Exhibit E−Mail 2−8−10, # 2 Exhibit Letter 7−8−10, # 3 Exhibit Letter 6−6−11)(Saltzman, William) (Entered: 06/17/2011)
206 REPLY to Response to 197 MOTION to Compel Production of Documents filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Errata)(Silveira, Alison) (Entered: 06/24/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting in part and denying in part 200 Motion for Extension of Time to Complete Discovery. See Docket No. 203 and docket entries dated 6/14/2011 and 6/16/2011. (LaRoche, Donald) (Entered: 06/29/2011)
ELECTRONIC NOTICE Resetting Hearing on Motion 200 MOTION for Extension of Time to Complete Discovery : Motion Hearing set for 6/30/2011 11:30 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 06/29/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Motion Hearing held on 6/30/2011 re 200 MOTION for Extension of Time to Complete Discovery filed by Harold W. Clarke, Kathleen Dennehy, Veronica Madden, Timothy Hall, John Jr. Marshall, Massachusetts Department of Correction, James Bender. The court heard arguments from the parties and took the matter under advisement. (Court Reporter: Digital Recording.)(Attorneys present: Head, Silveira, and Rollins for the plaintiffs and Saltzman for the defendants) (LaRoche, Donald) (Entered: 07/05/2011)
207 Magistrate Judge Jennifer C. Boal: ORDER entered. re 205 Opposition to Motion, filed by Harold W. Clarke, Kathleen Dennehy, Veronica Madden, Timothy Hall, John Jr. Marshall, Massachusetts Department of Correction, James Bender, 197 MOTION to Compel Production of Documents filed by Disability Law Center, Inc. SEE ATTACHED ORDER. (LaRoche, Donald) (Entered: 07/01/2011)
ELECTRONIC NOTICE Resetting Hearing on Motion 197 MOTION to Compel Production of Documents : Continued Motion Hearing set for 7/14/2011 02:00 PM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 07/07/2011)
208 STATUS REPORT by Disability Law Center, Inc.. (Silveira, Alison) (Entered: 07/13/2011)
209 JOINT STATEMENT of counsel. (Attachments: # 1 Exhibit, # 2 Exhibit)(Silveira, Alison) (Entered: 07/13/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Motion Hearing held on 7/14/2011 re 197 MOTION to Compel Production of Documents filed by Disability Law Center, Inc. The court heard arguments from the parties and will enter an order. (Status Conference set for 7/28/2011 11:00 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal). (Court Reporter: Digital Recording.)(Attorneys present: Head, Rollins, and Silveira − plaintiffs; Saltzman − defendants) (LaRoche, Donald) (Entered: 07/19/2011)
210 Magistrate Judge Jennifer C. Boal: ORDER entered granting in part, denying in part as moot, and reserving ruling on DLC's motion to compel docket 197 Motion to Compel. SEE ATTACHED ORDER. (LaRoche, Donald) (Entered: 07/19/2011)
211 AFFIDAVIT of William D. Saltzman by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Saltzman, William) (Entered: 07/26/2011)
212 STATUS REPORT by Disability Law Center, Inc.. (Attachments: # 1 Exhibit)(Silveira, Alison) (Entered: 07/27/2011)

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07/27/2011 07/27/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/29/2011 08/01/2011
08/01/2011 08/09/2011
08/09/2011
08/09/2011 08/10/2011

213 MOTION to Compel Production of Documents from 3d Party MHM Services, Inc. by Disability Law Center, Inc..(Head, Carol) (Entered: 07/27/2011)
214 AFFIDAVIT of Carol E. Head in Support re 213 MOTION to Compel Production of Documents from 3d Party MHM Services, Inc. filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Head, Carol) (Entered: 07/27/2011)
ELECTRONIC NOTICE of Hearing : Status Conference set for 8/11/2011 11:30 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 07/28/2011)
Set/Reset Hearings: Status Conference set for 7/28/2011 11:00 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. Status Conference set for 8/11/2011 11:30 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. Status Conference set for 8/25/2011 03:00 PM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 07/28/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Status Conference held on 7/28/2011. The court heard from the parties regarding the progress of discovery. The court will issue an order. (Court Reporter: Digital Recording.)(Attorneys present: Head, Rollins, and Silveira − plaintiffs; Saltzman, Anderson and Grant − defendants) (LaRoche, Donald) (Entered: 07/29/2011)
215 Magistrate Judge Jennifer C. Boal: ORDER after hearing on 7/28/2011 entered. (LaRoche, Donald) (Entered: 07/29/2011)
ELECTRONIC NOTICE Setting Hearing on Motion 213 MOTION to Compel Production of Documents from 3d Party MHM Services, Inc. : Motion Hearing set for 8/25/2011 03:00 PM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 07/29/2011)
216 Transcript of Hearing held on July 14, 2011, before Magistrate Judge Jennifer C. Boal. The Transcript may be purchased through Maryann Young at 508−384−2003, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: None. Digital Recording transcribed by Maryann Young. Redaction Request due 8/22/2011. Redacted Transcript Deadline set for 9/1/2011. Release of Transcript Restriction set for 10/31/2011. (Scalfani, Deborah) (Entered: 08/01/2011)
217 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 08/01/2011)
218 Transcript of Settlement Conference held on March 21, 2008, before Chief Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 8/30/2011. Redacted Transcript Deadline set for 9/9/2011. Release of Transcript Restriction set for 11/7/2011. (Scalfani, Deborah) (Entered: 08/09/2011)
219 Transcript of Settlement Conference held on June 19, 2009, before Chief Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 8/30/2011. Redacted Transcript Deadline set for 9/9/2011. Release of Transcript Restriction set for 11/7/2011. (Scalfani, Deborah) (Entered: 08/09/2011)
220 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 08/09/2011)
221 AFFIDAVIT of William D. Saltzman by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Attachments: # 1 Exhibit)(Saltzman, William) (Entered:

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08/10/2011 08/10/2011 08/10/2011 08/11/2011
08/12/2011 08/15/2011 08/15/2011 08/17/2011
08/17/2011 08/19/2011 08/24/2011 08/25/2011
08/25/2011 08/25/2011

08/10/2011)
222 JOINT STATEMENT of counsel. (Anderson, Charles) (Entered: 08/10/2011)
223 STATUS REPORT by Disability Law Center, Inc.. (Attachments: # 1 Exhibit)(Silveira, Alison) (Entered: 08/10/2011)
224 BRIEF by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction Defendants' Proposal Regarding Relevance Redactions. (Grant, Sheryl) (Entered: 08/10/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Status Conference held on 8/11/2011. The court heard from the parties regarding discovery. Order to issue. (Court Reporter: Digital Recording.)(Attorneys present: Silveira, Rollins, and Pingeon − plaintiffs; Saltzman and Anderson − defendants) (LaRoche, Donald) (Entered: 08/15/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered denying 213 Motion to Compel Production of Documents as moot. At the August 11, 2011 status conference, DLC orally withdrew the motion. Accordingly, the motion is denied as moot. (LaRoche, Donald) (Entered: 08/15/2011)
Chief Judge Mark L. Wolf: ELECTRONIC ORDER entered. REFERRING MOTION 189 Joint MOTION to Amend Protective Order Dated August 12, 2010 by Plaintiff Disability Law Center and filed by MHM Services, Inc. to Magistrate Judge Boal(Hohler, Daniel) Motions referred to Jennifer C. Boal. (Entered: 08/15/2011)
225 Magistrate Judge Jennifer C. Boal: ORDER entered. PLEASE SEE ATTACHED ORDER. (LaRoche, Donald) (Entered: 08/16/2011)
226 Transcript of Hearing held on February 1, 2011, before Magistrate Judge Jennifer C. Boal. The Transcript may be purchased through Maryann Young, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: None. Digital Recording transcribed by Maryann Young 508−384−2003 Redaction Request due 9/7/2011. Redacted Transcript Deadline set for 9/19/2011. Release of Transcript Restriction set for 11/15/2011. (Scalfani, Deborah) (Entered: 08/17/2011)
227 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 08/17/2011)
228 STATUS REPORT by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Saltzman, William) (Entered: 08/19/2011)
229 JOINT STATEMENT of counsel. (Silveira, Alison) (Entered: 08/24/2011)
230 Transcript of Hearing held on June 30, 2011, before Magistrate Judge Jennifer C. Boal. The Transcript may be purchased through Maryann Young 508−384−2003, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: None. Digital Recording transcribed by Maryann Young. Redaction Request due 9/15/2011. Redacted Transcript Deadline set for 9/26/2011. Release of Transcript Restriction set for 11/23/2011. (Scalfani, Deborah) (Entered: 08/25/2011)
231 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 08/25/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Status Conference held on 8/25/2011. The court heard from the parties regarding discovery status. (Status Conference set for 9/12/2011 12:00 PM in Courtroom 14 before Magistrate Judge Jennifer C. Boal.). (Court Reporter: Digital Recording.)(Attorneys present: Head, Rollins, and Silveira − plaintiffs; Saltzman −

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08/29/2011 09/02/2011
09/02/2011
09/02/2011 09/08/2011 09/09/2011 09/12/2011 09/12/2011
09/12/2011
09/13/2011 09/13/2011 09/13/2011 09/16/2011 09/19/2011

defendants) (LaRoche, Donald) (Entered: 08/30/2011)
232 Magistrate Judge Jennifer C. Boal: ORDER entered. SEE ATTACHED ORDER. (LaRoche, Donald) (Entered: 08/30/2011)
233 Transcript of Hearing held on March 2, 2011, before Magistrate Judge Jennifer C. Boal. The Transcript may be purchased through Maryann Young at 508−384−2003, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name: None. Digital Recording transcribed by Maryann Young. Redaction Request due 9/23/2011. Redacted Transcript Deadline set for 10/3/2011. Release of Transcript Restriction set for 12/1/2011. (Scalfani, Deborah) (Entered: 09/02/2011)
234 Transcript of Hearing held on July 28, 2011, before Magistrate Judge Jennifer C. Boal. The Transcript may be purchased through Maryann Young at 508−384−2003, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name: None. Digital Recording transcribed by Maryann Young. Redaction Request due 9/23/2011. Redacted Transcript Deadline set for 10/3/2011. Release of Transcript Restriction set for 12/1/2011. (Scalfani, Deborah) (Entered: 09/02/2011)
235 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 09/02/2011)
236 Supplemental MOTION to Amend the Protective Order dated August 12, 2010 [Assented−to] by Disability Law Center, Inc.. (Attachments: # 1 Exhibit 1)(Head, Carol)(LaRoche, Donald). (Entered: 09/08/2011)
237 STATUS REPORT of All Parties by Disability Law Center, Inc.. (Head, Carol) (Entered: 09/09/2011)
Chief Judge Mark L. Wolf: ELECTRONIC ORDER entered. REFERRING MOTION 173 Assented to MOTION for Order to Concerning Production of Documents in Response to Plaintiff's Subpoena filed by MHM Services, Inc. to Magistrate Judge Boal(Hohler, Daniel) Motions referred to Jennifer C. Boal. (Entered: 09/12/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Status Conference held on 9/12/2011. The court heard from the parties regarding discovery status. Court order to issue. (Court Reporter: Digital Recording.)(Attorneys present: Head, Rollins, and Silveira − plaintiffs; Saltzman, and Grant − defendants) (LaRoche, Donald) (Entered: 09/12/2011)
238 Magistrate Judge Jennifer C. Boal: ORDER AFTER HEARING entered. SEE ATTACHED ORDER. ( Status Conference set for 10/5/2011 02:00 PM in Courtroom 14 before Magistrate Judge Jennifer C. Boal., Status Conference set for 10/26/2011 11:30 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal., Status Conference set for 11/9/2011 11:30 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal., Status Conference set for 11/30/2011 11:30 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal.)(LaRoche, Donald) (Entered: 09/12/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting in part and denying in part 200 Motion for Extension of Time to Complete Discovery. See Docket No. 203 and electronic order dated June 14, 2011. (LaRoche, Donald) (Entered: 09/13/2011)
239 Magistrate Judge Jennifer C. Boal: ORDER entered. PROTECTIVE ORDER(LaRoche, Donald) (Entered: 09/14/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 236 Motion to Amend. SEE PROTECTIVE ORDER Docket 239 . (LaRoche, Donald) (Entered: 09/14/2011)
240 Assented to MOTION to Withdraw Order Concerning Production of Documents in Response to Plaintiff's Subpoena by MHM Services, Inc..(Hughes, Stephen) (Entered: 09/16/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered denying as moot 173 Assented to MOTION for Order to Concerning Production of Documents in

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09/20/2011 09/22/2011 09/30/2011 10/03/2011 10/03/2011 10/12/2011
10/12/2011
10/12/2011 10/21/2011 10/25/2011
11/17/2011 11/18/2011
12/12/2011 12/12/2011

Response to Plaintiff's Subpoena by MHM Services, Inc. Denying as moot in light of MHM Services, Inc.s withdrawal of the motion at Docket No. 240 . (LaRoche, Donald) (Entered: 09/19/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered terminating as non−motion 240 Motion to Withdraw (LaRoche, Donald) (Entered: 09/20/2011)
241 STATUS REPORT by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Saltzman, William) (Entered: 09/22/2011)
242 Joint MOTION for Order to Cancel October 5, 2011 Status Conference by Disability Law Center, Inc..(Silveira, Alison) (Entered: 09/30/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 242 Joint MOTION for Order to Cancel October 5, 2011 Status Conference. (LaRoche, Donald) (Entered: 10/03/2011)
ELECTRONIC NOTICE Canceling Hearing − October 5, 2011 Status Conference cancelled. (LaRoche, Donald) (Entered: 10/03/2011)
243 Transcript of Hearing held on May 5, 2011, before Magistrate Judge Jennifer C. Boal. The Transcript may be purchased through Maryann Young at 508−384−2003, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: None. Digital Recording transcribed by Maryann Young. Redaction Request due 11/2/2011. Redacted Transcript Deadline set for 11/14/2011. Release of Transcript Restriction set for 1/10/2012. (Scalfani, Deborah) (Entered: 10/12/2011)
244 Transcript of Hearing held on August 11, 2011, before Magistrate Judge Jennifer C. Boal. The Transcript may be purchased through Maryann Young at 508−384−2003, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: None. Digital Recording transcribed by Maryann Young. Redaction Request due 11/2/2011. Redacted Transcript Deadline set for 11/14/2011. Release of Transcript Restriction set for 1/10/2012. (Scalfani, Deborah) (Entered: 10/12/2011)
245 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 10/12/2011)
246 Joint MOTION for Order to Cancel Upcoming Status Conferences by Disability Law Center, Inc..(Silveira, Alison) (Entered: 10/21/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 246 Joint MOTION for Order to Cancel Upcoming Status Conferences by Disability Law Center, Inc. The parties shall file a joint status report within thirty days unless they file a joint motion to approve a settlement agreement before the status report is due. (LaRoche, Donald) (Entered: 10/25/2011)
247 STATUS REPORT (Joint Status Report) by James Bender, Harold W. Clarke, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Anderson, Charles) (Entered: 11/17/2011)
Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered. re 247 Status Report filed by Harold W. Clarke, Veronica Madden, Timothy Hall, John Jr. Marshall, Massachusetts Department of Correction, James Bender. The parties shall file a joint status report within thirty days unless they file a joint motion to approve the settlement agreement prior to that date. (LaRoche, Donald) (Entered: 11/18/2011)
248 Joint MOTION for Order to Approving Settlement Agreement by Disability Law Center, Inc..(Silveira, Alison) (Entered: 12/12/2011)
249 Joint MEMORANDUM in Support re 248 Joint MOTION for Order to Approving Settlement Agreement filed by Disability Law Center, Inc.. (Silveira, Alison) (Entered: 12/12/2011)

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12/12/2011 12/12/2011 12/13/2011 01/06/2012
01/06/2012 01/26/2012 01/31/2012
01/31/2012
02/02/2012
02/02/2012 02/06/2012 02/07/2012

250 Joint MOTION to Seal Document by Disability Law Center, Inc..(Silveira, Alison) (Entered: 12/12/2011)
251 Letter/request (non−motion) from Alison Hickey Silveira. (MacDonald, Gail (Entered: 12/13/2011)
252 SEALED DOCUMENT. (Attachments: # 1 SEALED Settlement Agreement, # 2 Appendix)(MacDonald, Gail) Unsealed by docket 260 Modified on 4/13/2012 (Hohler, Daniel). (Entered: 12/13/2011)
253 Chief Judge Mark L. Wolf: ORDER entered. Accordingly, it is hereby ORDERED that: 1. The parties shall, by January 26, 2012, jointly if possible, but separately to any extent necessary, supplement their submissions to address the foregoing issues, and any others that will facilitate an informed and expeditious decision on whether the Motion to Approve Settlement Agreement should be allowed and the settlement should be implemented through a court order. 2. A hearing on the Motion will be held on February 2, 2012, at 2:30 p.m.(Hohler, Daniel) (Entered: 01/06/2012)
ELECTRONIC NOTICE of Hearing.Hearing set for 2/2/2012 02:30 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 01/06/2012)
254 Joint MEMORANDUM in Support re 248 Joint MOTION for Order to Approving Settlement Agreement (Joint Supplemental Memorandum) filed by Disability Law Center, Inc.. (Attachments: # 1 A, # 2 B, # 3 C, # 4 D, # 5 E, # 6 F, # 7 G, # 8 H, # 9 I, # 10 J, # 11 K, # 12 L, # 13 M, # 14 N, # 15 O, # 16 P)(Silveira, Alison) (Entered: 01/26/2012)
ELECTRONIC NOTICE OF RESCHEDULING ***** AS TO LOCATION ONLY *****NOTICE TO COUNSEL re: Cameras in the Courtroom Project. The parties having orally reported their consent to the video recording in this case are hereby notified that this scheduled proceeding is eligible for video recording. Counsel are directed to the district court web site at http://www.mad.uscourts.gov/general/cameras.html to memorialize their consent to video recording. Hearing is now set for 2/1/2012 02:30 PM in Courtroom 2 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 01/31/2012)
ELECTRONIC NOTICE OF RESCHEDULING ***** AS TO LOCATION ONLY *****NOTICE TO COUNSEL re: Cameras in the Courtroom Project. The parties having orally reported their consent to the video recording in this case are hereby notified that this scheduled proceeding is eligible for video recording. Counsel are directed to the district court web site at http://www.mad.uscourts.gov/general/cameras.html to memorialize their consent to video recording. Hearing is now set for 2/1/2012 02:30 PM in Courtroom 2 before Chief Judge Mark L. Wolf.Hearing set for 2/2/2012 02:30 PM in Courtroom 2 before Chief Judge Mark L. Wolf. There is no hearing scheduled for 2/1. Please disregard the previous notice.(Hohler, Daniel) (Entered: 01/31/2012)
255 Chief Judge Mark L. Wolf: ORDER entered. With regard to the question whether the court's approval of the proposed Settlement Agreement and retention of jurisdiction would constitute a "consent decree" providing "prospective relief" subject to the requirements of the Prison Litigation Reform Act, see 18 U.S.C. §3626, it is the intention of the court to discuss at the February 2, 2012 hearing the following cases, in addition to those relied upon by the parties: Rowe v. Jones, 483 F.3d 791 (11th Cir. 2007); Gilmore v. California, 220 F.3d 987 (9th Cir. 2000); Hazen ex reI. LeGear v. Reagen, 208 F.3d 697 (8th Cir. 2000); Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999); and Clark v. California, 739 F. Supp. 2d 1168 (N.D. Cal. 2010).(Hohler, Daniel) (Entered: 02/02/2012)
ELECTRONIC Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Motion Hearing held on 2/2/2012 re 248 Joint MOTION for Order to Approving Settlement Agreement filed by Disability Law Center, Inc.. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: various) (Hohler, Daniel) (Entered: 02/03/2012)
256 Chief Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 02/06/2012)
257 Transcript of Approval of Settlement held on February 2, 2012, before Chief Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed

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04/12/2012

at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 2/28/2012. Redacted Transcript Deadline set for 3/9/2012. Release of Transcript Restriction set for 5/7/2012. (Scalfani, Deborah) (Entered: 02/07/2012)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/07/2012)
ELECTRONIC NOTICE of Hearing. NOTICE TO COUNSEL re: Cameras in the Courtroom Project. The parties in this case are hereby notified that this scheduled proceeding is eligible for video recording. Counsel are directed to the district court web site at http://www.mad.uscourts.gov/general/cameras.html to determine if they wish to consent to video recording. Responses are due by 3/5/2012.Hearing set for 3/9/2012 01:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 03/02/2012)
258 Joint MEMORANDUM in Support re 248 Joint MOTION for Order to Approving Settlement Agreement (Second Joint Supplemental Memorandum) filed by Disability Law Center, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Head, Carol) (Entered: 03/02/2012)
ELECTRONIC NOTICE OF RESCHEDULING Hearing set for 3/9/2012 01:00 PM RESCHEDULED AS TO LOCATION ONLY. Hearing now set in Courtroom 2 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 03/05/2012)
ELECTRONIC NOTICE OF RESCHEDULING AS TO TIME ONLYToday's hearing is now RESCHEDULED AS TO TIME ONLY and set for 3/9/2012 01:30 PM in Courtroom 2 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 03/09/2012)
Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Hearing held on 3/9/2012. Court in session. Court hears argument on settlement. Court in recess. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: various) (Hohler, Daniel) (Entered: 04/25/2012)
259 Transcript of Approval of Settlement Hearing held on March 9, 2012, before Chief Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 4/2/2012. Redacted Transcript Deadline set for 4/12/2012. Release of Transcript Restriction set for 6/11/2012. (Scalfani, Deborah) (Entered: 03/12/2012)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/12/2012)
260 Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER In view of the foregoing, the court finds that: it has the inherent authority to stay this case, and to condition the requested stay of this case upon a finding that the Agreement is fair, reasonable, and adequate; that such a finding is justified; and that because the court is not now ordering any prospective relief, the requirements of §3626(a)(1)(A) are not now implicated. Accordingly, it is hereby ORDERED that: 1. The Joint Motion to Approve the Settlement Agreement (Docket No. 248) is ALLOWED. 2. This case is STAYED and the court, therefore, retains jurisdiction. 3. Unless otherwise ordered, this case will be dismissed three years after the date of this Order. 4. The Settlement Agreement (Docket No. 252) is UNSEALED(Hohler, Daniel) (Entered: 04/12/2012)
261 Chief Judge Mark L. Wolf: ORDER OF ADMINISTRATIVE CLOSING entered. (Hohler, Daniel) (Entered: 04/12/2012)

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Civil Case Terminated. (Hohler, Daniel) (Entered: 04/12/2012)
Case no longer referred to Magistrate Judge Jennifer C. Boal. (LaRoche, Donald) (Entered: 04/18/2012)
265 STIPULATION of Dismissal by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Saltzman, William) (Entered: 05/20/2015)
266 MOTION to Reopen Case by Robert Aldrich. (Attachments: # 1 Cover Letter)(Franklin, Yvonne) (Entered: 06/28/2016)
267 MOTION to Intervene by Robert Aldrich.(Franklin, Yvonne) (Entered: 06/28/2016)
268 INTERVENOR'S NOTICE To US District Court of Defendants' Violation of Settlement Agreement by Robert Aldrich re 260 Memorandum & ORDER,,, (Franklin, Yvonne) (Entered: 06/28/2016)
269 DOCKET SHEET and copy of complaint sent to Robert Aldrich to return address by U.S. Postal Service. (Franklin, Yvonne) (Entered: 06/28/2016)
270 Opposition re 267 MOTION to Intervene, 266 MOTION to Reopen Case filed by Disability Law Center, Inc.. (Glassman, Richard) (Entered: 07/05/2016)
271 Opposition re 267 MOTION to Intervene, 266 MOTION to Reopen Case filed by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Saltzman, William) (Entered: 07/05/2016)
272 INTERVENOR−PLAINTIFF MOTION for Hearing on Motion to reopen case and to intervene as plaintiff 266 MOTION to Reopen Case by Robert Aldrich.(Franklin, Yvonne) (Entered: 07/14/2016)
273 MOTION for Writ of Habeas Corpus ad testificandum by Robert Aldrich. (Attachments: # 1 Cover Letter)(Franklin, Yvonne) (Entered: 07/14/2016)
274 MOTION for Leave to File Amended Complaint by Robert Aldrich.(Franklin, Yvonne) (Entered: 07/18/2016)
275 MOTION for Order to issue new Procedural Order by Robert Aldrich.(Franklin, Yvonne) (Entered: 07/18/2016)
276 MOTION Requesting Court Order for both parties to provide him with Discovery by Robert Aldrich.(Franklin, Yvonne) (Entered: 07/18/2016)
277 MOTION to Appoint Counsel by Robert Aldrich. (Attachments: # 1 Cover Letter)(Franklin, Yvonne) (Entered: 07/18/2016)
278 DOCKET SHEET sent to Robert Aldrich. (Franklin, Yvonne) (Entered: 07/18/2016)
279 Opposition re 274 MOTION for Leave to File, 276 MOTION for Discovery, 275 MOTION for Order to to issue new Procedural Order filed by Disability Law Center, Inc.. (Fleischner, Robert) (Entered: 07/19/2016)
280 Opposition re 274 MOTION for Leave to File, 276 MOTION for Discovery, 275 MOTION for Order to to issue new Procedural Order, 277 MOTION to Appoint Counsel filed by James Bender, Harold W. Clarke, Kathleen Dennehy, Timothy Hall, Veronica Madden, John Jr. Marshall, Massachusetts Department of Correction. (Saltzman, William) (Entered: 07/25/2016)
281 Letter(non−motion) request for status on pending motions from Robert Aldrich. (Franklin, Yvonne) (Entered: 10/31/2016)
282 DOCKET SHEET sent to Robert Aldrich. (Franklin, Yvonne) (Entered: 10/31/2016)
283 Judge Mark L. Wolf: MEMORANDUM AND ORDER entered denying 266 Motion to Reopen Case; denying 267 Motion to Intervene; denying 272 Motion for Hearing; denying 273 Motion for Writ of Habeas Corpus ad testificandum; denying 274 Motion for Leave to File Document ; denying 275 Motion for Order; denying 276 Motion for Discovery; denying 277 Motion to Appoint Counsel (Bono, Christine) (Entered:

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03/17/2017)
284 MOTION to Intervene by Demond Hicks. (Attachments: # 1 Affidavit)(Franklin, Yvonne) (Entered: 04/14/2017)
285 NOTICE of Change of Address by Demond Hicks. (Franklin, Yvonne) (Entered: 05/01/2017)
286 Judge Mark L. Wolf: ORDER entered denying 284 Motion to Intervene. (Bono, Christine) (Entered: 09/21/2017)