Case 1:12-cv-01570 Document 1 Filed 06/18/12 USDC Colorado Page 1 of 108
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No.
MICHAEL BACOTE, HAROLD CUNNINGHAM, JOHN W. NARDUCCI, JR., JEREMY PINSON, and ERNEST NORMAN SHAIFER, Each individually and on behalf ofall others similarly situated, Plaintiffs, vs. FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR. NEWTON E. KENDIG, PAUL M. LAIRD, BLAKE R. DAVIS, and DAVID A. BERKABILE, Defendants.
COMPLAINT
Plaintiffs Michael Bacote, Harold Cunningham, John W. Narducci, Jr., Jeremy Pinson, and Ernest Norman Shaifer (collectively, "Plaintiffs"), each individually and on behalf of all others similarly situated, respectfully complain as follows against defendants the Federal Bureau of Prisons, Charles E. Samuels, Jr., Newton E. Kendig, Paul M. Laird, Blake R. Davis, and David A. Berkabile (collectively, "Defendants").

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TABLE OF CONTENTS

Page

I.

NATURE OF THE ACTION ............................................................................................. 4

II. JURISDICTION ................................................................................................................. 7

III. VENUE ............................................................................................................................... 8

IV. PARTIES ............................................................................................................................ 8

V. GENERAL ALLEGATIONS ............................................................................................. 9

A. Background and Operation ofADX ....................................................................... 9
B. Extended Confinement in Isolation Can and Often Does Have a Devastating Effect on Prisoners' Mental Health....................................................................... 17

C. The BOP Violates Its Own Written Policies Concerning Evaluating, Housing and Treating Mentally TIl Prisoners at ADX......................................................... 19

D. ADX Houses Seriously Mentally TIl Prisoners Who Are Dangerous to Themselves and Others......................................................................................... 23

E. Mental Health Care Treatment at ADX is Woefully and Constitutionally Inadequate............................................................................................................. 29

F. Defendants Have Displayed Sustained Deliberate Indifference to The Plight and Needs ofMentally III Prisoners at ADX........................................................ 35

(I) The illnesses of Plaintiffs and their peers are obvious.........................................35

(2) At least fourteen separate pro se lawsuits filed by ADX prisoners in the past uine years have put Defendants on notice of the catastrophic deficiencies in the ADX mental health care system. .................................................................... 35

(3) A series of suicides by mentally ill prisoners have demonstrated in tragic and permanent terms the deficiencies in the ADX mental health system............38

G. Defendants Have Retaliated Against and Interfered With Plaintiffs and Other ADX Prisoners Who Have Tried to Assert Their Constitutional and Other Legal Rights to Mental Health Treatment. ........................................................... 41
(1) ADX staff have interfered with Legal Mail and confiscation of AttorneyClient Privileged Materials...................................................................................42

(2) ADX staff have interfered with the attorney-client relationship and retaliated against prisoners by threatening, antagonizing, and punishing prisoners who communicate with counseL.........................................................44

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VI. ALLEGATIONS RELATING SPECIFICALLY TO PLAINTIFFS ............................... 46 A. Michael Bacote ..................................................................................................... 46 B. Harold Cunningham.............................................................................................. 50 C. Ernest Nonnan Shaifer.......................................................................................... 55 D. Jeremy Pinson ....................................................................................................... 59 E. John W. Narducci, Jr............................................................................................. 62
VII. ALLEGATIONS RELATING SPECIFICALLY TO THE INTERESTED INDIVIDUALS................................................................................................................. 66 A. John Jay Powers .................................................................................................... 69 B. Marcellus Washington .......................................................................................... 74 C. William Concepcion Sablan ................................................................................. 78 D. Jaison Leggett ....................................................................................................... 83 E. David Shelby......................................................................................................... 87 F. Herbert Isaac Perkins ............................................................................................ 93
VIII. CLASS ACTION ALLEGATIONS ................................................................................. 97 A. Prisoner Class........................................................................................................ 98 B. Serious Mental Illness Subclass .......................................................................... 100
IX. CLAIMS FOR RELIEF .................................................................................................. 102
x. PRAYER FOR RELIEF ................................................................................................. 103
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I. NATURE OF THE ACTION 1. This class action lawsuit concerns the treatment of prisoners at the United States Penitentiary Administrative Maximum facility in Florence, Colorado ("ADX") who suffer from serious mental illness. It seeks declaratory and injunctive relief requiring the Federal Bureau of Prisons ("BOP") to comply with its existing policies regarding the treatment of mentally ill prisoners, and with the requirements ofthe Eighth Amendment regarding medical treatment for United States citizens and others who have been committed to its custody. Currently, the BOP turns a blind eye to the needs of the mentally ill at ADX and to deplorable conditions of confinement that are inhumane to these prisoners. No civilized society treats its mentally ill citizens with such deliberate indifference to their plight. 2. ADX is the most secure federal penitentiary in the United States. It currently houses approximately 450 men. Staff at ADX often refer to it as the "AJcatraz of the Rockies." ADX was built to house prisoners whom the BOP believes present the greatest threats to the correctional staff or to other prisoners. Prisoners spend at least 20 and as many as 24 hours per day locked alone in isolated cells, and are subject to a harsh and unforgiving disciplinary regimen. Such isolation and brutal discipline are inappropriate for prisoners who are seriously mentally ill. 3. According to the BOP's own policies, prisoners with serious mental illnesses should not be assigned to ADX. Upon information and belief, those policies reflect the BOP's recognition that extended confinement in isolation and the institution's disciplinary practices pose substantial risks to prisoners' mental health, and can be particularly harmful for prisoners who had mental health problems before being confined in such conditions.
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4. Despite its policies, the BOP regularly assigns prisoners with serious mental illnesses to ADX. That fact results from the BOP's routine disregard of its own prior mental health evaluations ofprisoners it wishes to send to ADX and its woefully inadequate mental health screening evaluations when prisoners are transferred to ADX. The BOP also fails to monitor ADX prisoners for mental health problems that arise after they arrive at the facility and fails to provide mentally ill prisoners at ADX with adequate mental health care. The conditions of confinement at ADX and Defendants' failure to properly diagnose and treat mental illness combine to worsen the conditions ofprisoners who were mentally ill when they arrived at ADX, and cause some other prisoners to develop serious mental illness.
5. The BOP's deliberate indifference to the proper diagnosis and treatment ofADX prisoners with serious mental illnesses has resulted in horrible consequences. Many prisoners at ADX interminably wail, scream, and bang on the walls of their cells. Some mutilate their bodies with razors, shards of glass, sharpened chicken bones, writing utensils, and whatever other objects they can obtain. A number swallow razor blades, nail clippers, parts of radios and televisions, broken glass, and other dangerous objects. Others carry on delusional conversations with voices they hear in their heads, oblivious to reality and to the danger that such behavior might pose to themselves and anyone who interacts with them. Still others spread feces and other human waste and body fluids throughout their cells, throw it at the correctional staff and otherwise create health hazards at ADX. Suicide attempts are common; many have been successful.
6. The Eighth Amendment to the United States Constitution guarantees to every person imprisoned at ADX adequate medical care, including care for mental illnesses. That
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guarantee includes access to an adequate process for assessing the need for mental health care, and access to necessary care itself. Ifthe BOP chooses, despite its policies, to assign or house at ADX prisoners with serious mental illness, it must provide adequate mental health screening and treatment, taking into account the isolated conditions ofconfinement and harsh disciplinary regime of ADX. The BOP falls woefully short of providing this constitutionally-guaranteed level of care.
7. Plaintiffs are five seriously mentally ill men currently incarcerated at ADX, This Complaint also names as "Interested Individnals" six other current ADX prisoners with serious mental illnesses: Jaison Leggett, Herbert Perkins, John Jay Powers, William Concepcion Sablan and Marcellus Washington.! Many of these men also suffer severe functional impairment of their ability to attend to their own personal needs or even to exist in a world with other people. Several of them are mentally retarded, and at least one is functionally illiterate. The brutality and deliberate indifference to human rights that the BOP exhibits toward Plaintiffs and the Interested Individuals also exists with respect to many of the other prisoners held at ADX, including the members of the class and subclass that Plaintiffs represent in this case.
8. Defendants are the BOP and several of its senior officials. Defendants are responsible for operating ADX and for ensuring that Plaintiffs' constitutional and other legal rights are respected. Defendants have failed to meet those obligations to Plaintiffs, the Interested Individuals, and the members ofthe class and subclass.
! For reasons discussed in section VII below, counsel has not yet been able to ascertain the status of the Interested Individuals' efforts to exhaust administrative remedies. Once exhaustion is confirmed, they will be added as plaintiffs.
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9. Defendants' constitutional violations have repercussions beyond the harm caused to Plaintiffs, Interested Individuals, the class, and the subclass. Many ADX prisoners who suffer from untreated or poorly treated mental illness pose a constant and sometimes deadly threat to BOP personnel. Although ADX programs are designed to isolate prisoners from other prisoners, they cannot isolate prisoners from BOP staff charged with providing basic services on a daily basis and conducting security checks required in all correctional settings. The extreme isolation and the lack of adequate mental health treatment only serve to increase the risk of assaults to the staff assigned these duties.
10. Although some ADX prisoners will never be released from prison, many, including several of the Plaintiffs and a number of other ADX prisoners, will be released into the community when their sentences expire in the next few years. After years of confinement in isolation without proper treatment for serious mental illness, these men will have a very, very difficnlt time reentering society safely and successfully.
11. This class action lawsuit seeks to remedy the deficient mental health system at ADX by means of a permanent injunction, requiring the BOP to honor its own policies and the constitutional rights of ADX prisoners by providing mental health diagnostic and treatment ServIces.
II. JURISDICTION 12. This Court's subject matter jurisdiction over the allegations in this Complaint is based on 28 U.S.C. § 1331, in that the claims for injunctive relief arise under the United States Constitution and federal statutes. The request for declaratory relief is based upon 28 U.S.C.
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§ 220 I, in that an actual controversy exists between Defendants and each Plaintiff over the denial of services that are guaranteed by the United States Constitution.
III. VENUE 13. Venue is proper in the District of Colorado under 28 U.S.C. § 1391(b), because a substantial part of the acts or omissions that give rise to Plaintiffs' claims occurred or will occur in the District of Colorado.
IV. PARTIES 14. Plaintiffs Michael Bacote, Harold Cunningham, Jeremy Pinson, John Narducci, Jr., and Ernest Norman Shaifer are currently housed at ADX. Each Plaintiff suffers from a serious mental illness. The care that each Plaintiff has received and continues to receive at ADX for his mental illness is constitutionally deficient and otherwise fails to satisfy Defendants' legal obligations to Plaintiffs. Plaintiff-specific facts are set forth in Section VI of this Complaint, below. 15. Defendant BOP is a federa11aw enforcement agency subdivision ofthe United States Department of Justice, and is responsible for the administration of federal prisons, including ADX. The BOP maintains physical custody of Plaintiffs and class members. The BOP is charged with establishing policies and regulations that are safe, humane, and secure for all federal penitentiaries and other prison facilities. 16. Defendant Charles E. Samuels, Jr. is the Director of the BOP. He is sued herein in his official capacity. 17. Defendant Newton E. Kendig is the Medical Director and Assistant Director of the Health Services Division of the BOP. He is sued herein in his official capacity.
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18. Defendant Paul M. Laird is the Regional Director of the North Central Region of the BOP, which includes this District. He is sued herein in his official capacity.
19. Defendant Blake R. Davis is the Assistant Director of the Correctional Programs Division ofthe BOP. He is sued herein in his official capacity.
20. Defendant David A. Berkabile is the current Warden at ADX. He is sued herein in his official capacity.
v. GENERAL ALLEGATIONS
A. Background and Operation of ADX 21. At any given time, between 400 and 500 prisoners are housed at ADX in nine
different maximum-security housing units, which are divided into six security levels: the Control Unit (or "Bravo" Unit); the disciplinary Special Housing Unit (also called "Zulu" Unit, the "SHU," or the "Hole"); so-called "Range 13," an ultra secure and isolated four-cell wing of Zulu Unit in which the BOP houses prisoners it thinks require confinement with virtually no
human contact·, four so-called "General Population" Units ("Delta," "Echo," "Fox," and "Golf'
Units), the Special Security Unit (also called the "SAMs" Unit or "H Unit"); and two units ("Joker" Unit and "Kilo" Unit) that in recent years have been used as transitional housing units for prisoners who have entered the so-called "Step-Down Program," in which they can earn their way out ofADX and into a lower security classification. Photographs of the prison's exterior are attached hereto as Exhibit 1.
22. Depending on which unit they are in, prisoners spend at least 20, and as much as 24, hours per day locked alone in their cells. The cells measure approximately 12 feet by 7 feet, and have solid walls that prevent prisoners from viewing the interiors of other cells or having
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direct contact with prisoners in adjacent cells. All ADX cells have solid doors with a small closable slot. Cells in all units other than H, J, and K units also have an interior barred wall with a sliding door, which together with the exterior door forms a sally port in each cell. Each cell is furnished with a concrete bed, desk, and stool, and a stainless steel combination sink and toilet. Cells in all units other than H, J, and K units include a shower with an automatic shut-off valve. The beds are usually dressed with a thin mattress and blankets over the concrete. Each cell contains a single window, approximately 42 inches tall and 4 inches wide, which allows entry of some natural light but which is designed to ensure that prisoners cannot see anything outside of their cells other than the building and sky. Many cells, except those in the SHU, are equipped with a radio and black and white television that offers religious and educational programming, along with some general interest and recreational programming. Televisions often are withheld from prisoners as punishment. Meals are delivered three times a day. With few exceptions, prisoners in most ADX units are allowed out of their cells only for limited social or legal visits, some forms of medical treatment, visits to the "law library" (essentially a cell with a specialized computer terminal that provides access to a limited range of federal legal materials) and a few hours a week of indoor or outdoor recreation. Otherwise they remain locked in their cells. Photos of a standard ADX cell are collected in Exhibit 2 hereto.
23. The Control Unit is the most secure and isolated unit currently in use at ADX. Prisoners in the Control Unit are isolated from the other prisoners at all times, even during recreation, for extended terms often lasting six years or more. Their only meaningful contact with other humans is with ADX staff members. The compliance ofControl Unit prisoners with institutional rules is assessed monthly; a prisoner is given "credit" for serving a month ofhis
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Control Unit time only ifhe maintains clear conduct for the entire month. As detailed below, Defendants provide no mental health care or psychotropic medication to Control Unit prisoners. Given their complete lack of access to mental health care, seriously mentally ill prisoners confined in the Control Unit frequently have behavioral issues caused by their mental illness. Such conduct often results in the loss of credit for Control Unit time served, thus extending the prisoner's time in the extreme isolation ofthe Control Unit, sometimes for years. For example, Interested Individual John Powers entered the ADX Control Unit in 2001 with a 60-month sentence, but as a result of disciplinary incidents (including a number of instances of extreme self-mutilation) was not released into the ADX General Population until March 2011, after more than 120 months in the Control Unit. During that time he received no meaningful mental health careatADX.
24. Prisoners confined to the SHU live in similar isolation. They are continuously segregated from other prisoners, even during recreation. Unlike other ADX prisoners, those in the SHU generally are denied access to televisions and radios, and sometimes are confined with nothing in their cells but a mattress and minimal clothing (for example, a t-shirt and boxer shorts). ADX prisoners are housed in the SHU in several circumstances. Most ADX prisoners spend at least a few days in the SHU upon their arrival at the institution. Others are moved to the SHU pending investigation of incidents such as fights that occur from time to time elsewhere in the institution. Prisoners who receive disciplinary incident reports (or "shots" in the ADX vernacular), and who as a result are sentenced to a term ofpunitive segregation, serve that time in the SHU. Like Control Unit prisoners, many prisoners confined to the SHU are serving a specified term of disciplinary detention, but that time may be extended by further shots. As in
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the Control Unit, seriously mentally ill prisoners held in the extreme isolation and sensory deprivation of the SHU frequently receive additional shots. As a result, many seriously mentally ill prisoners have lived in the ADX SHU for many months, and some have lived there for years.
25. In the four "General Population" units, prisoners also are isolated from one another, spending at least 22 hours per day alone in their cells. A few days a week, they may be able to see and speak with a limited number of other prisoners during shared recreation periods lasting two hours, but only while all are confined in separate outdoor cages of the kind depicted in Exhibit 3. A photograph of individual outdoor recreation enclosures ofthe sort used by Control Unit and SHU inmates is attached as Exhibit 4. A few days a week, prisoners in most ADX units also have a few hours of access, one at a time, to individual inside recreation rooms of the sort depicted in Exhibit 5.
26. The ADX step-down program is a series of three transitional housing units in which prisoners are afforded direct, although still extremely limited, contact with other prisoners. The step-down units represent a type of halfway house on the path to being allowed to leave ADX for another prison. Still, prisoners who reside in the step-down units are confined to their cells for all but a few hours a day. Because of the erratic way that the ADX step-down program operates, the step-down units are particularly dangerous for prisoners with mental illnesses who are trying to "earn" their way to a lower security classification.
27. Every prisoner intent on earning his way out of ADX is required to pass through Joker Unit, the first stage in the step-down program, which is designed to house up to 64 prisoners. Prisoners are eligible for transfer to Joker Unit only after completing an extended period of clear conduct. Prisoners who avoid trouble in Joker Unit are eligible to move, after a
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time, to the second phase of step-down, where they have more freedom. If they succeed there they move to the final step-down phase, which provides even more freedom and a pathway to a transfer to a regular maximum security federal penitentiary. Successful completion ofthe stepdown program can take years, even if a prisoner behaves perfectly. But any transgression, however minor, can and often does result in the prisoner's removal from the program, placement back in the ADX SHU, and a restarting of the good-conduct clock. Many ADX prisoners have made it partway through the step-down program several times, only to be returned to the SHU or general population based on a small, or imaginary, transgression.
28. Unlike other ADX cells, the individual cells in the step-down units at ADX have no interior bars. Accordingly, only one sliding solid steel door separates prisoners from the open day room at the center of the unit. Joker Unit prisoners are part of a "Recreation Group" ofup to seven other prisoners housed on the same tier. Each Recreation Group is released at once into the day room or outside recreation yard, where they have unrestrained access to one another. Exhibit 6 includes several photographs of Joker and Kilo Units, which in recent years have had a nearly identical configuration.
29. For most ADX prisoners, being transferred into Joker Unit is a disorienting and dangerous experience. After years of isolation, with no direct, unrestrained contact with other human beings, many prisoners experience a fundamental loss of even basic social skills and adaptive behaviors, and predictably find themselves paranoid about the motives and intentions of others. Once placed into unrestrained contact with other, similarly impaired and paranoid men, the stress on prisoners -- even those with no mental illness -- can be extreme. Assaults and stabbings are common. In 2005, two ADX prisoners in Kilo Unit slowly beat and stomped a
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third prisoner to death over a period ofmany minutes in full view ofADX staffmembers, who made no effort to intervene until the victim was lying still, either dead or near death, in a pool of blood.
30. Recreation Groups are formed, in part, by the need to separate prisoners who are not supposed to be housed together or allowed contact with one another. For example, members of rival gangs would not be placed in the same Recreation Group. Similar "separations" can result from past conflicts between particular prisoners, or situations in which one prisoner has testified against another prisoner.
31. When members of one Joker Unit Recreation Group are out of their cells, the other Recreation Groups in the unit are supposed to be securely locked in their cells. However, that objective is not always met at ADX. In addition, because cells in Joker Unit lack an internal barred wall, prisoners housed in Joker Unit who have separations often are separated from their separatees only by a single steel door.
32. That fact creates extreme danger and stress for Joker Unit prisoners, because ADX staff members frequently open the doors of Joker Unit cells unexpectedly, giving prisoners direct and potentially lethal access to one another. For prisoners with personal protection concerns arising from health problems, age, or past cooperation with law enforcement officials, the potential that his cell door will open suddenly and unexpectedly turns every moment that another Recreation Group spends in the Joker Unit day room into a life or death moment. In November 2011, two Caucasian Joker Unit prisoners stabbed and severely injured an African American prisoner in Joker Unit. Several days later, a mentally ill class member was awakened early in the morning when ADX staff "accidentally" opened his cell door with no warning and
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for no reason. In his doorway stood a raving Caucasian prisoner. Fortunately, the "accident" did not result in a physical confrontation. But it did result in the mentally ill prisoner's transfer to the SHU and removal from the step-down program even though he had no role in the "mistaken" opening of his cell door and even though he did nothing wrong.
33. The dangers of Joker Unit, and in particular the risk of physical confrontation because ofa staff member's "mistake," are widely known to ADX prisoners, increasing the stress they experience upon entry into the step-down program. When combined with the ravages of untreated or inadequately treated mental illness, those stresses make it virtually impossible for most severely mentally ill prisoners to earn their way out ofADX by completing the step-down program. Thus, even in the uulikely event that a severely mentally ill prisoner -- despite inadequate mental health care -- can maintain clear conduct long enough to qualify for the stepdown program, very few can hold it together long enough to complete that program. Instead, they frequently succumb to the behavior caused by their illness, are removed from step-down and transferred back to the SHU and then "general population," all the while being denied the mental health care they need to have any realistic chance to get better, succeed in conforming their behavior to institutional norms, and qualify for transfer to less secure prisons. At!, a result, upon information and belief, the percentage of the prisoner population at ADX with serious mental illness has risen steadily in recent years, and will continue doing so until the BOP reforms the mental health care system at ADX.
34. In all units at ADX Defendants make a determined and calculated effort to dominate prisoners through the use ofpunitive techniques that include the use of extended periods ofisolated confinement in the Control Unit or SHU and threats ofother punitive
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measures such as the withholding ofprivileges (such as access to a television set, access to the in-house "commissary" where prisoners can purchase food and other items, access to the telephone, and prompt delivery of inbound mail). ADX programs are designed based upon a punishment philosophy rather than a control philosophy. The behavior ofmentally ill prisoners, in particular, deteriorates very rapidly when they are placed into programs designed to punish rather than to control unacceptable behaviors.
35. Consistent with ADX's punishment-focused correctional model, certaio members of the correctional staffat ADX routinely use physical abuse ofunruly or merely assertive prisoners to create fear and to demonstrate the dominance of the correctional staff. The harsh and unforgiving disciplinary philosophy employed at ADX is inappropriate for seriously mentally ill prisoners, particularly those who are not only mentally ill but whose minds also are dulled by confinement in sustained isolation. For example, certain prisoners are required to stand with their backs to the door and hands on the wall when their meals are delivered. If a prisoner fails instantly to comply, officers often depart without leaving a food tray. As a result, psychotic or deeply depressed prisoners, including those whose conditions are exacerbated by Defendants' failure to provide required medications and other mental health care, frequently go without food on the ostensible basis that they defied an officer's order, when in fact the prisoner's only failing was a failure to understand the order or instantaneously clear his mind of fog induced by untreated mental illness and sustained isolation.
36. Plaintiffs do not dispute the need for security at ADX, and acknowledge that unruly or violent prisoners may sometimes require physical restraint. But as applied to seriously mentally ill prisoners, the brutal disciplinary model employed by the staff at ADX is often an
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instrument ofterror and abuse, deployed by staffmembers who sometimes provoke the very conduct they punish, and many of whom lack the training and skills necessary to manage mentally ill prisoners safely and effectively.
B. Extended Confinement in Isolation Can and Often Does Have a Devastating Effect on Prisoners' Mental Health. 37. Correctional officials and mental health professionals have known for more than
200 years that extended periods of confinement in isolation can be psychologically damaging, and can be particularly harmful to individuals with pre-existing mental illness. Beginning in 1790, when sixteen isolation cells were constructed at Philadelphia's Walnut Street Jail, correctional officials and mental health professionals have regularly studied and acknowledged the dangers ofprolonged confinement in isolation. It is well understood that extreme isolation for even a few weeks can result in psychosis, social withdrawal, insomnia, depression, hallucinations, rage, aggression, self-mutilation, and contemplation of suicide.
38. In early America, confinement in isolation was viewed as a more humane alternative to corporal punislnnent; its proponents thought it would inspire ''peuitence'' through self-reflection. In 1829, Eastern State Peuitentiary in Philadelphia opened, employing the "Pennsylvania model" of almost complete isolation: it sought to prohibit all contact between prisoners, utilizing cells with individual exercise yards and solid doors that were primitive versions of those now inhabited at ADX.
39. The detrimental effects of extreme isolation under the Pennsylvania model soon became apparent. Following his 1842 visit to Eastern State Peuitentiary, for example, Charles Dickens expressed concern about the facility and the extreme isolation of its prisoners, noting
that ''this slow and daily tampering with the mysteries of the brain [was1immeasurably worse
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than any torture of the body." America's first experiment with extended confinement in isolation was declared by contemporary observers such as Alexander de Tocqueville as "fatal" for most prisoners because "[i]t devours the victim incessantly and unmercifully," did not successfully reform prisoners, and caused "[t]he unfortunate creatures submitted to this experiment [to] wastrel away."
40. Because of its adverse effects on prisoners, the Pennsylvania model was quickly abandoned by many states during the nineteenth century. In 1890, one hundred years after the first isolation cells were constructed at the Walnut Street Jail, the Supreme Court concluded:
[E]xperience demonstrated that there were serious objections to [extended confinement in isolation]. A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community. It became evident that some changes must be made in the system.
In re Medley, 134 U.S. 160, 168 (1890).
41. In 1913, Eastern State Penitentiary at long last abandoned its system of complete isolation and allowed prisoners at least some regular human interaction. Shortly thereafter, in
Commonwealth ex reI. Elliott v. Francies, 58 Pa. Super. 270 (Pa. Super. Ct. 1914), a
Pennsylvania court ordered that individuals who had been incarcerated at Eastern State Penitentiary in error were to be "absolutely" rather than "conditionally" discharged before the end oftheir sentences, due to the severity of the punishment and based upon ':iust and humane principles." In 1933, the warden at Eastern State Penitentiary called for the facility's closure,
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noting that the system utilized at Eastern State could not effectively reform the prisoners incarcerated there.
42. The anecdotal observations of the past have been confirmed by modern science. For example, as early as the 1960s electroencephalography (EEG) examinations demonstrated the slowing of brain waves ofprisoners confined in isolation for longer than a week. A landmark study in the 1970s showed that subjects in solitary confinement often experienced impaired functioning of the brain waves associated with the ability to control emotions and key cognitive functions. Similarly, a 2011 study demonstrated that after only a week of solitary confinement, prisoners showed decreased EEG activity, indicative of increased stress, anxiety, and depression.
43. Despite the mountains of anecdotal and empirical data confirming the impact on mental health of extended isolated confinement, the BOP regularly assigns to ADX prisoners who suffer from serious mental illnesses, and fails to maintain an adequate program to diagnose and treat the serious mental illnesses created and exacerbated by the conditions of confinement there.
C. The BOP Violates Its Own Written Policies Concerning Evaluating, Housing and
Treating Mentally m Prisoners at ADX.
44. The BOP's written procedures for transferring prisoners to ADX state that prisoners "currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at ... ADX." BOP Program Statement 5100.08, ''Prisoner Security Designation and Custody Clarification," Chapter 7, p.18. This prohibition is widely ignored by Defendants. The BOP regularly assigns prisoners to ADX even though they have welldocumented histories of serious mental illnesses, and in many cases histories showing that their mental illnesses can be controlled with proper treatment.
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45. BOP policies also require that all prisoners are to be given psychiatric screening upon arrival at ADX. For example, BOP policies require the prison staff to "ensure that assessment and treatment planning procedures exist to identify all prisoners entering the institution with either a recent history or current symptoms of significant mental illnesses and/or risk of suicide." BOP Program Statement 5310.13, "Institution Management of Mentally III Prisoners," p.4. During the intake screening, prisoners with any of the following must be referred immediately to the Mental Health Program Coordinator for a more thorough assessment:
• Recent history or current symptoms of significant mental illness; • Signs or symptoms consistent with a possible mental disorder; • Use of medication for treatment of a mental illness or disorder; • Documented mental health designation; • Risk of suicide. ld.; BOP Program Statement 6340.04, "Psychiatric Services," § 9(a). 46. In reality, incoming prisoners at ADX generally are given only perfunctory interviews that are wholly inadequate as a form of screening or diagnosis. The mental health "screening" provided by the facility typically consists of a few questions asked in a minute or two, often at a time when the prisoner has just completed a lengthy cross-country trip while tightly chained, and is apprehensive about his arrival at ADX. Follow-up monitoring and screening is virtually nonexistent. Even when the BOP does carry out the psychological or psychiatric screening of a new arrival, it often ignores key factors indicating mental illness, such as, for example, the fact that the prisoner was taking medication for a serious mental illness immediately before arriving at ADX.
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47. Even where prisoners at ADX are properly identified as having a serious mental illness, many are not given appropriate treatment, including either counseling or medication. If a prisoner is referred to the mental health Program Coordinator, BOP policies require adherence to the BOP's minimum criteria for follow up assessment and treatment planning. BOP Program Statement 5310.13, "Institution Management of Mentally TIl Prisoners," pA. The Program Coordinator is required to complete a screening report on all referred prisoners, and to forward the prisoner's mental health information to relevant members ofthe prison staff. ld. at 5. If the prisoner has extensive treatment needs, the Program Coordinator must schedule additional sessions and establish a treatment plan. ld. Defendants routinely ignore these requirements by, among other things, rarely establishing meaningful treatment plans even for prisoners who are chrouically and obviously seriously mentally ill, and failing even to establish at ADX a mechauism for delivering elementary mental health services, such as private counseling, which would be a necessary element of any meauingful treatment plan for most of the seriously mentally ill prisoners at ADX.
48. Because of the particularly severe conditions of confinement in the ADX Control Unit, federal regulations require the BOP to adhere to an especially detailed set of mental health standards, including:
The Warden may not refer an inmate for placement in a control uuit ... [ilfthe inmate shows evidence of significant mental disorder or major physical disabilities as documented in a mental health evaluation or a physical examination. 28 CFR §541.4l(c)(1). Mental health services. During the first 30-day period in a control unit, staff shall schedule the control uuit prisoner for a psychological evaluation conducted by a psychologist. Additional individual evaluations shall occur every 30 days. The psychologist shall perform and/or supervise needed psychological services. Psychiatric
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services will be provided when necessary. Prisoners requiring prescribed psychotropic medication are not ordinarily housed in a control unit. 28 C.F.R. §541.46(i) (Emphasis added.) 49. Defendants regularly violate every major requirement of these regulations. As detailed below, several of the Plaintiffs are currently or have been assigned to the ADX Control Unit in violation of section 541.41(c)(1). Moreover, it is common for the BOP to place an incoming prisoner with an existing prescription for psychotropic medication in the Control Unit, where the BOP refuses to administer such medication in violation of section 541.46(i). The BOP justifies this in Orwellian fashion: it discontinues the prisoner's medication, thereby making the now non-medicated prisoner "eligible" for placement in the Control Unit. Then, when this newly "eligible" prisoner requests medication needed to treat his serious mental illness, he is told that BOP policy prohibits the administration ofpsychotropic medication to him so he should develop "coping skills" as a substitute for the medication being withheld. Instructing a prisoner confined in long-term segregation and who has Schizophrenia or Bipolar illness to self-treat his disease with coping skills is like demanding that a diabetic prisoner learn to "cope" without insulin. Likewise, the required 30 day "individual evaluations" are in actuality rarely performed on inmates in the Control Unit. Indeed, and as an example, upon information and belief, one obviously and seriously mentally ill inmate in the ADX Control Unit who habitually resides in a cell reserved for the seriously mentally ill which is fitted with, among other things, Plexiglas sheets over the internal barred grill, was not out of his cell at any point between November 2011 and May 2012 and during that time had no substantive communications whatsoever with any BOP mental health professional.
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50. BOP policies require that mentally ill prisoners be monitored on an ongoing basis to assess treatment compliance. BOP Program Statement 5310.13, "Institution Management of
Mentally mPrisoners," at 5. For certain prisoners, including those receiving psychotropic
medication and those segregated for mental health reasons, mental health staff must, at a minimum, conduct a monthly interview to assess the prisoner's treatment strategy. Id. As with other applicable policies, ADX staffroutinely ignore this written monitoring requirement. Some prisoners never leave their cells or speak with staff for months. Many such prisoners live for extended periods in squalor, in cells caked with their own feces and bodily fluids, without bathing, and in some cases without even getting out ofbed. Any meaningful "monitoring" would identify and trigger intervention for such prisoners, but rarely, ifever, does ADX staff seek to remedy the fetid and unsafe living conditions ofmany ofthe mentally ill people in their custody.
D. ADX Houses Seriously Mentally m Prisoners Who Are Dangerous to Themselves
and Others. 51. Plaintiffs, together with other class members, suffer from various forms of serious mental illness, including Major Depression, Schizophrenia, Bipolar lllness, Schizoaffective Disorder, various personality disorders with significant functional impairments, Post-Traumatic Stress Disorder, mental retardation, and other chronic and serious mental conditions. These mental conditions are described and defined more completely in the Diagnostic and Statistical Manual ofMental Disorders, Fourth Edition ("DSM-IV"). 52. Prisoners with serious mental illnesses are sometimes confined at ADX for months or years without adequate mental health treatment, with predictably devastating results. These conditions exacerbate their mental illness, making them increasingly dangerous to
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themselves and others. Their inadequately treated illnesses often lead to aggressive and violent behavior which is in tum used by the correctional staffas justification (if not pretext) for further acts of extreme isolation and violence directed at the prisoner, thereby establishing a vicious cycle in which anger begets a violent response that begets more anger.
53. Many of those prisoners housed in the SHU, particularly on A Range in the SHU, suffer from serious, chronic mental illness. Some ofthem have been housed in the SHU for years. Some routinely smear themselves and their cells with their own feces. Some howl or shriek continuously, or bang their metal showers at all hours ofthe day or night. Some speak to themselves continuously. One carries on conversations with himselfvirtua1ly every day, using multiple voices. Another, who recently arrived at ADX and spent weeks in the SHU before being moved to a General Population Unit, laid for weeks in his cell, caked with feces. He was rarely fed, and the ADX staff responsible for his care tormented him by yelling at him and antagonizing him as ifhe were a reviled animal.
54. Two Plaintiffs, Messrs. Shaifer and Cunningham, and one Interested Individual, Mr. Washington, are currently assigned to the Control Unit despite histories of serious mental illness requiring medication and treatment, which are being denied to them. Another Interested Individual, Jack Powers, spent nearly ten years in the Control Unit before he was moved to the ADX general population in early 2011. During his time in the Control Unit, Mr. Powers slowly descended into madness, horribly mutilating himself as a result ofhis serious mental illness, repeatedly ramming his head into a metal door frame, amputating two fingers, a testicle, and his scrotum, tattooing his entire body with a razor blade and carbon paper dust, trying to inject bacteria into his own brain, and slashing his wrist severely enough that he lost consciousness.
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All of this occurred after the BOP itself diagnosed Mr. Powers with a serious mental illness and all of it happened while he was being ''monitored'' by Defendants and their agents. Although he was referred for treatment three times at a BOP medical facility while confined in the Control Unit, and received prescribed medication for his serious mental illness during two of those visits, each time he was returned to ADX his treatment ceased, and his symptoms and mutilations escalated.
55. Seriously mentally ill prisoners also are housed throughout ADX's General Population Units, and inhabit most ofthe 12 housing ranges that comprise those units. Such prisoners range from recluses who literally have not left their cells in months or years, to more boisterous prisoners who bang on their cell bars, or their showers, day and night, talk to themselves, wail and scream, and otherwise express their indeterminate suffering to the great disruption and discomfort ofother nearby prisoners.
56. The prison's "General Population" Units currently are home to at least two prisoners who are so chronically mentally ill that the Department of Justice itself has repeatedly gone to court to have each ofthem involuntarily committed or forcibly medicated. Both have been diagnosed by the BOP as suffering from Schizophrenia, both have repeatedly been treated by the BOP for that illness and both exhibit chronic and obvious psychosis. And yet both currently reside at ADX and, upon information and belief, currently are receiving no mental health care whatsoever.
57. The first ofthese prisoners is 40 years old and was initially transferred to ADX at some point before 2002. The BOP has diagnosed him on multiple occasions as suffering from Schizophrenia, Paranoid Type, Psychotic Disorder Not Otherwise Specified (''NOS'') and/or
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Antisocial Personality Disorder. In 2002, this prisoner was transferred from ADX to the u.s.
Medical Center for Federal Prisoners in Springfield, Missouri ("MCFP Springfield"), where a BOP psychologist diagnosed him with Schizophrenia, Paranoid Type and noted that "[h]e endorses bizarre delusional beliefs" and suffered from auditory hallucinations. Although suffering from these illnesses, the inmate refused psychiatric treatment. In 2003, pursuant to 18 U.S.C. § 4245, the BOP involuntarily committed this inmate for treatment. In 2004, the BOP involuntarily medicated him with anti-psychotic medication. Thereafter, a BOP clinician inexplicably determined that the prisoner was feigning mental illness despite his significant, documented psychiatric history and the prior involuntary commitment initiated by the very same federal agency that now decided he was pretending to be mentally ilL He was eventually transferred back to ADX. The following year in 2005, the BOP again reversed course, transferring the prisoner back to MCFP Springfield, where he was again involuntarily medicated after a BOP psychiatrist noted that "[p]sychotropic medication is the treatment of choice for [his] mental illness." In 2006, he was returned to ADX, where, upon information and belief, he has remained since. He is scheduled for release in October 2012, and, upon information and belief, will have had no mental health treatment in more than six years when he is released directly from ADX to the community.
58. The second such prisoner is 46 years old and has been diagnosed by the BOP as suffering from Paranoid Schizophrenia and Antisocial Personality Disorder. The BOP sought to have him involuntarily committed on three separate occasions between 1998 and 2007. The first involuntary commitment petition, filed in 1998, resulted in a psychiatric evaluation noting "[w]hile awaiting a decision from the court, [the prisoner's] condition worsened .... [and]
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escalated to the point that he was difficult to manage." In 2001, the BOP filed a second involuntary commitment petition, arguing that "there is reasonable cause to believe that [the prisoner] is presently suffering from a mental disease or defect (paranoid Schizophrenia and Antisocial personality disorder), for which he requires care and treatment in a suitable facility." At a hearing on the 200 I petition, the prisoner opposed commitment, arguing that he could adequately cope in the general prison population and involuntary commitment was not warranted. Nonetheless, at the BOP's urging, the court found that the prisoner "suffers from a mental disease or defect, and is in need of care and treatment in a suitable facility" and granted the BOP's petition. Most recently, in 2007, the BOP filed another petition regarding this prisoner, which the prisoner again objected to, and the court again granted, involuntarily committing the prisoner for a third time for mental health care and treatment. Yet, upon information and belief, he continues today to reside at ADX, with no psychiatric care whatsoever.
59. Upon information and belief, certain ADX staff members use mentally ill prisoners as weapons against other, particularly disfavored prisoners. For example, prisoners at ADX periodically rotate cells, ostensibly for security reasons. For most prisoners, a cell rotation means moving into the next cell on the same range. When a prisoner is ''behind'' a mentally ill prisoner in the cell rotation pattern, at each cell rotation he may find himself forced to move into a cell that is coated with dried human waste, semen, urine and sometimes blood. Because many ADX prisoners suffer from contagious blood-borne diseases, such as hepatitis C, exposure in this manner to another prisoner's waste carries with it an immediate and dire risk ofinfection with a serious and sometimes fatal illness. Nevertheless, ADX prisoners are routinely forced into
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waste-caked cells left behind by an obviously mentally ill fellow prisoner. The new inhabitant must then clean the cell himself -- often with few if any cleaning supplies -- and then await the next rotation, when the process will be repeated. Upon information and belief, certain ADX staff members deliberately place disfavored prisoners behind unsanitary mentally ill prisoners in the cell rotation pattern for the intended purpose of exposing the unfortunates to the constant noise and harassment supplied by a mentally ill neighbor and to ensure that after every cell rotation the disfavored prisoner will have to clean another filthy cell.
60. Likewise, in 2010 a severely and chronically depressed prisoner who had attempted to kill himself a few months earlier was escorted to the ADX SHU after throwing milk at a corrections officer. He was placed in a cell from which the BOP had just removed another chronically and notoriously mentally ill prisoner who had smeared the cell's floors, walls, bed and mattress with feces. The prisoner arriving was given no cleaning supplies, and was not issued a blanket, towel, or sheet. He used the roll of toilet paper in the cell to try to wipe the feces off of a spot on the bare concrete floor that was large enough to enable him to lie down. For two days, he remained lying on that single "clean" space. When he had not been issued cleaning supplies, a towel, sheet or blanket after two days, he covered the Plexiglas wall in his cell with newspapers to block the view from the hallway and then prepared to hang himself with his shoelaces. Before he succeeded in doing so an "emergency response team" assembled because of the newspaper on his cell windows, forcibly entered the cell, restrained the inmate, and moved him to another cell where he was handcuffed hand and foot to a concrete pedestal for another day, during which he was unable to reach the food left for him on the desk in the cell.
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61. The BOP maintains separate facilities in other locations for dealing with prisoners who are severely mentally ill, including MCFP Springfield, the Federal Medical Center in Butner, North Carolina (''FMC Butner"), the Federal Medical Center in Rochester, Minnesota ("FMC Rochester"), and the Federal Medical Center in Devens, Massachusetts ("FMC Devens"). MCFP Springfield is an administrative facility that provides medical, mental health, and dental services to male offenders of all security levels, including prisoners classified for confinement at ADX. FMC Butner is an administrative facility that houses male prisoners of all security levels, including prisoners classified for confinement at ADX. FMC Rochester and FMC Devens are administrative facilities providing specialized medical and mental health services to male offenders.
62. Plaintiffs and all other ADX prisoners with serious mental illnesses could be safely and securely housed at MCFP Springfield or FMC Butner for treatment of their mental illnesses. In fact, many of Plaintiffs and a large number of other ADX prisoners have been hospitalized at MCFP Springfield and/or FMC Butner while designated for confinement at ADX. Upon information and belief, certain ADX prisoners could safely and securely be housed at FMC Rochester or FMC Devens for treatment oftheir mental illnesses.
E. Mental Health Care Treatment at ADX is Woefully and Constitutionally Inadequate. 63. The BOP does not provide adequate mental health staffing at ADX. Upon
information and belief, only two mental health professionals -- both psychologists -- are responsible for the mental health of the approximately 450 prisoners housed at ADX, many of whom have serious chronic mental illnesses or other mental health issues, and many others of whom experience periodic acute mental health crises. These health care professionals are
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assisted by a psychiatrist who spends only approximately one-halfday per week at ADX, a period that is grossly inadequate given the substantial number ofprisoners at ADX who require psychotropic medications. As a result ofinadequate staffing by mental health professionals, ADX prisoners, including Plaintiffs and class members, do not have timely access to mental health professionals, particularly in times ofcrisis. This leads to prisoners becoming involved in escalating conflicts and violence that would be avoided if adequate mental health staffing were provided at the facility. The consequences of inadequate mental health staffing include a risk of physical harm to Plaintiffs, class members, and other prisoners, and a risk of harm to staff.
64. ADX provides psychotropic medication to some, but not all, of the seriously mentally ill prisoners housed at the facility. Furthermore, although the efficacy of many psychotropic drugs may be affected by the time of administration and by such considerations as proximity ofthe administration to a meal, ADX staff distributes medications on an irregular schedule that is often inconsistent with the instructions for consumption of the medication. Staff members responsible for distributing medications also frequently make mistakes by distributing the incorrect medication to prisoners, or incorrect dosages ofthe correct medication. The haphazard and sometimes reckless distribution of medications substantially interferes with the benefits the medications provide to those ADX prisoners lucky enough to be authorized to receive needed psychotropic medications.
65. Many prisoners at ADX receive their psychotropic medication through a ''pill line" procedure in which the medication is crushed and given to them at their cell door in a cup. Many of the seriously mentally ill prisoners at ADX are severely paranoid as a result oftheir illness, and generally believe that the staffproviding medication is either providing the wrong
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medication or, in some cases, affirmatively attempting to poison them. In such circumstances, prisoners sometimes ask to receive whole pills that they can recognize (based on extended histories oftaking the same medication), or for staffto show them the pills they are being given before grinding them up. Staffmembers routinely refuse these requests, leaving severely mentally ill and in some cases psychotic prisoners to choose between declining needed medication or consuming a substance they genuinely (even if erroneously) believe will harm or kill them.
66. ADX provides no meaningful mental health counseling to prisoners. Rather, ''psychology programming" consists of distributing to prisoners books with such titles as "Anger Management for Dummies," " Choose Forgiveness - Your Journey to Freedom," and "Why Zebras Don't Get mcers." Staff award certificates to prisoners diligent and literate enough to self-treat their serious mental illnesses by completing elementary workbooks. Illiterate prisoners, including PlaintiffMichael Bacote, have no meaningful access to the negligible therapeutic information distributed by ADX in written form.
67. Some repetitive and elementary psychology programming is also available to the segment ofthe ADX prisoner population with access to a television. The information provided in this manner is oflittle if any use to severely mentally ill or psychotic inmates. Moreover, many ofADX's most chronically and devastatingly mentally ill prisoners are housed for months or years in the SHU, where prisoners are denied access to all television programming, including even the meager televised mental health programming provided to other prisoners.
68. Members of ADX mental health staff occasionally talk to prisoners, but even those occasional "counseling" sessions are almost invariably conducted through the bars ofthe
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prisoner's cell, in the immediate presence of a correctional offer and within earshot of other prisoners housed on the same range. This process turns psychological counseling into a farce. Few people, in or out ofprison, are comfortable discussing intensely personal matters in a highly public environment that renders them subject to ridicule. The same is true for ADX prisoners, who also are forced by ADX's approach to mental health "counseling" to choose between forgoing that counseling or exposing themselves to violent assault or death based on events or concerns that they would discuss with a mental health professional and are forced to discuss within easy earshot of other prisoners. Although a safe, secure and private room for psychology counseling is available within steps of virtually every cell at ADX, staffmembers routinely ignore prisoner requests to discuss psychological problems in private.
69. Suicide and mental health crisis services at ADX also are systematically deficient. Mentally ill prisoners threatening suicide are often goaded by ADX staff members to kill themselves. Prisoners who take steps to slash their wrists or hang themselves generally receive only minimal medical treatment for acute injuries. And instead of receiving mental health intervention, they are punished: they receive a disciplinary incident report that sometimes results in a trip to the SHU and loss ofprivileges. An ADX prisoner who recently attempted to hang himself in the SHU was violently removed from the room where he tried to commit suicide by a team of correctional officers in riot gear. Incredibly, an ADX psychologist in full riot gear participated in the violent extraction. After a short stay in a "strip cell," a nearly empty cell in which the prisoner is clothed what is essentially a paper robe, he was returned to the disciplinary segregation cell that precipitated his despair and suicide attempt only days earlier.
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70. Upon information and belief, the BOP provides grossly inadequate training to the staffat ADX, including in particular the corrections staff, regarding mental illnesses and the safe and humane management ofmentally ill prisoners. As a result, staffmembers routinely resort to unnecessary violence and disciplinary actions when an inadequately treated mentally ill prisoner acts out. Thus, mentally ill prisoners, including those in the throes ofa psychotic episode, frequently are subjected to barbaric treatment more suited to the dungeons of medieval Europe than to a modern American prison. For example, mentally ill prisoners are routinely "four pointed" -- chained by the wrists and ankles in either a prone or supine position on top ofa concrete platform -- often for extended periods. While chained, mentally ill prisoners sometimes are left to urinate and defecate on themselves, and sometimes are denied basic nutrition.
71. In some cases, ADX staff turn the simple (although cruel and unconstitutional) refusal to feed a prisoner into a deceptive hoax. ADX prisoners, including those in four point restraints, sometimes are put on a disciplinary "sack lunch" nutrition program in which they are fed not standard prison trays but a paper bag containing a sandwich or two and a piece of fruit. Many mentally ill prisoners at ADX who are placed on sack lunch restriction have received their sack (suitably videotaped) being delivered to their cells. But when they open the bags (off camera) they sometimes are empty. Through this ruse ADX staff produce false video evidence of feeding, raise (ifonly for a minute) the prisoner's hope for basic nutrition, then smash the often-chained and always hungry prisoner's hopes with a bag of air. Severely mentally ill prisoners at ADX often live near the edge oftheir emotional endurance, and the empty sack lunch is one of many cruel ploys that, upon information and belief, are used by certain ADX staff
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members to torture and provoke such prisoners into outbursts that then are used to justify even harsher discipline.
72. As a result of this type of abuse, other prisoners in nearby cells and ranges are often subject to the shrieking and suffering ofprisoners undergoing such abuse. Upon information and belief, such abuses are caused and/or exacerbated by inadequate staff treatment and a general failure of supervision.
73. Upon information and belief, the BOP requires or encourages members of the mental health staff at ADX to perform correctional functions. Upon information and belief, such staffmembers have: performed prisoner escort duty within the prison while anned with weapons, openly brandishing those weapons in the presence ofprisoners; worked shifts in the prison's gun towers; appeared at the doorways ofprisoners brandishing clubs in an aggressive fashion; and participated in violent acts toward prisoners, including on at least one instance, participating in a violent cell extraction while wearing riot police protective gear. The performance of correctional functions by mental health professionals in the presence of or with the knowledge ofprisoners blurs the line between the mental health profession and the correctional profession, and destroys whatever trust might otherwise develop among prisoners and the mental health professionals who are their only source of treatment for their mental illnesses. In the absence of some measure of trust, no mental health clinician can effectively treat a prisoner's mental illness.
74. As described above and, with respect to Plaintiffs and Interested Individuals below, Defendants' failure to diagnose and treat serious mental illness has devastating consequences. With utter disdain for human dignity and decency and disregard for the
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requirements ofthe Eighth Amendment, Defendants repeatedly have violated the constitutional rights ofPlaintiffs, Interested Individuals, the class, and the subclass.
F. Defendants Have Displayed Sustained Deliberate Indifference to The Plight and Needs of Mentally III Prisoners at ADX. 75. Defendants are, and have been for years, on actual notice of the unmet mental
health needs at ADX, but have demonstrated sustained and deliberate indifference to those needs. Defendants' actual knowledge ofthe unmet mental health needs of ADX prisoners has come from a variety of sources, including without limitation medical records ofPlaintiffs and other prisoners, direct observation ofPlaintiffs and other obviously mentally ill prisoners, administrative remedy requests filed by Plaintiffs and other prisoners, past litigation challenging the ADX mental health system, and suicides ofmentally ill prisoners.
(1) The illnesses of Plaintiffs and their peers are obvious. 76. As described in this Complaint, many ofthe seriously mentally ill prisoners at ADX do not and cannot hide their conditions. They scream, howl, mutilate themselves, smear their waste, and beg for help. Many have long, documented histories of serious mental illness. Many have filed dozens ofwritten requests for mental health intervention, to little or no avail.
(2) At least fourteen separate pro se lawsuits nIed by ADX prisoners in the past nine years have put Defendants on notice of the catastrophic deficiencies in the ADX mental health care system.
77. In the past nine years, prisoners at ADX have filed at least fourteen separate lawsuits against various BOP officials that sought, in whole or part, treatment for serious mental illnesses. For example, current ADX prisoner Dawane Mallett has alleged in at least four separate lawsuits that he is mentally ill and that mentally ill prisoners housed at ADX are deprived of proper treatment. See Mallett v. Davis, No. 11-01567 (D. Colo. 2011) (dismissed for
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lack ofprosecution); Mallett v. Davis, No. 10-00085 (D. Colo. 2010) (two claims were dismissed as repetitive of 09-03013, and the remaining claim was dismissed as an improper claim under § 2241 and for lack of standing); Mallett v. Davis, No. 09-03013 (D. Colo. 2009) (dismissed for failure to exhaust BOP administrative-remedy procedure); Mallett v. Davis, No. 09-01823 (D. Colo. 2009) (dismissed for failure to cure deficiencies, in particular to submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915).
78. Former ADX prisoner Peter Georgacarakos filed three separate lawsuits raising similar issues, including a claim that ADX's Control Unit conditions violate the Eighth Amendment because the facility houses prisoners without regard for their psychological health. See Georgacarakos v. Wiley, No. 05-02207 (D. Colo. 2005) (dismissed for failure to pay filing fee); Georgacarakos v. Watts, et al., No. 09-01648 (D. Colo. 2009) (dismissed for failure to file an amended pleading on the Court's Prisoner Complaint form); see also Georgacarakos v. Wiley, et al., No. 07-01712 (D. Colo. 2007) (claiming that ADX prisoners in isolation are denied the prescription and administration of psychotropic drugs, and that isolation causes such mental illness).
79. In Thirkield v. No Defendants Named, No. 10-02193 (D. Colo. 2010), ADX prisoner DeAndre Thirkield's allegations included apparent delusions that he is being subjected to psychological torture of the brain by electronic sources. Upon information and belief, Mr. Thirkield is actively and chronically psychotic and his medical condition is or should be obvious to anyone who spends more than a few minutes with him.
80. Likewise, in Baxter v. Manspeaker, et al., No. 10-01086 (D. Colo. 2010), current ADX prisoner David Baxter (whose legal name is Richie Hill) noted several times that he is
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mentally ill. He also alleged that he was refused a mental health evaluation and repeatedly attempted suicide and self-mutilated. Like Mr. Thirkield, Mr. Baxter is, upon information and belief, severely mentally ill. He has resided in the ADX SHU for years, and has engaged in horrific self-harm, including slashing himself with sharp objects, swallowing razor blades and sharp pieces of metal, and carving a large circular design covering most of the left side of his face, apparently using a staple or other sharp object to gouge out pieces of skin.
81. Current ADX Control Unit resident Raheem Davis filed at least three lawsuits pleading for help with his untreated serious mental illness. See Davis v. Warden Daniel, et al., 10-cv-00395 (D. Colo., filed Feb. 23, 2010); Davis v. United States ofAmerica, ll-cv-00429 (D. Colo., filed Feb. 17,2011); and Davis v. No Defendant Named, II-cv-02249-LTB (D. Colo., filed Sept. 21, 2011). Upon information and belief, Mr. Davis is obviously psychotic. He has been housed in the ADX Control Unit for several years. Although BOP policies mandate that Control Unit prisoners meet monthly with a team ofinstitution staff personnel, including a member ofthe psychology department, upon information and belief, between October 2011 and May 2012 Mr. Davis never left his cell. During that time he did, however, rant, rave, bang on his cell walls, and generally live in squalor.
82. Current ADX prisoner Mikeal Stine sued a member ofthe ADX staffin 2009 for, among other things, denying him mental health treatment. See Stine v. Blanke, 09-cv-01527 (D. Colo., filed June 30, 2009).
83. In 2003, current ADX Control Unit Resident and Plaintiff Emest Shaifer sued the BOP and a number of its employees, including members of the medical staff at ADX, for failing to treat his Bipolar Illness. See Brown v. Federal Bureau ofPrisons,03-ES-1648 (D. Colo., filed
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October 17, 2003). On July 20,2005, the complaint was dismissed for failure to exhaust administrative remedies. All alleged below, Mr. Shaifer has since exhausted his administrative remedies several times, and yet he still sits in the ADX Control Unit waiting to receive the medication necessary to treat his serious mental illness.
84. Even though the foregoing fourteen lawsuits and, upon information and belief, a number of others, alleged persistent deficiencies in the ADX mental health system, no meaningful changes have been made to that system. Instead, each time the BOP was sued, it merely set out only to defeat the prisoners' legal claims, generally on procedural grounds. The BOP failed to address and remedy the substantive issues raised by the lawsuits or to respond to the cries for help from its population ofmentally ill charges, whose conditions continued to deteriorate as the BOP focused on ways to dismiss their complaints.
(3) A series of suicides by mentally ill prisoners have demonstrated in tragic and permanent terms the deficiencies in the ADX mental health system.
85. Since ADX opened in 1994, at least six ADX prisoners have committed suicide there:
(a) On June 17, 1999, Kevin Wilson hanged himself in his cell with a bedsheet;
(b) On December 9, 1999, Gregory Britt hanged himself in a recreation cage; (c) On November 18, 2002, Lawrence KIaker hanged himself in his cell with shoelaces; (d) On April 17, 2006, Lance Vanderstappen hanged himself in his cell with a bedsheet;
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(e) On May 27, 2008, John Frierson hanged himself in his cell with a braided bedsheet; and
(f) On May 1, 2010, Jose Martin Vega hanged himself in his cell with a bedsheet.
86. Upon information and belief, most if not all of these prisoners were suffering from a mental illness at the time they took their own lives.
87. The death ofMr. Vega is perhaps the best illustration, among these suicides, of Defendants' utter and persistent failure to address the proliferation of serious mental illness at ADX. As described below, ADX's mental health system failed to screen, monitor, or treat Mr. Vega's mental illnesses, first diagnosed by the BOP in 2004. Instead, Defendants placed Mr. Vega in ADX's Control Unit, deprived him ofnecessary psychiatric medications, and otherwise abused and tortured him over a period of years. These actions had devastating consequences.
88. In 1995, at the age of20, Mr. Vega was sentenced to life in prison and committed to the custody of the BOP. Mr. Vega was confined at two facilities before he was transferred to ADX.
89. Upon his arrival at ADX on AprilS, 2004, Mr. Vega was placed in the Control Unit. Although the details of Mr. Vega's health care screening upon his arrival at ADX are presently unknown, the screening, such that it was, apparently failed to reveal that he had a serious mental illness. However, upon information and belief, in December 2004, approximately eight months after Mr. Vega arrived at ADX, BOP psychologist Marie Bailey diagnosed Mr. Vega with Paranoid Schizophrenia.
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90. In March 2005, Mr. Vega was referred to MCFP Springfield for a mental health evaluation, which revealed that Mr. Vega had "a history ofdepression and antisocial personality disorder." Mr. Vega remained at MCFP Springfield for approximately one year. Upon information and belief, the BOP only allows prisoners with Mr. Vega's security classification to remain at MCFP Springfield for as long as a year of mental health treatment only in cases of severe mental illness.
91. In 2006, the BOP transferred Mr. Vega back to ADX, in violation of the BOP's written procedures which clearly state that "prisoners currently diagnosed as suffering from serious psychiatric illnesses shonld not be referred for placement at ... ADX." BOP Program Statement 5100.08, "Prisoner Security Designation and Custody Clarification," Chapter 7, p.18.
92. Upon information and belief, Defendants did not send Mr. Vega to the Mental Health Program Coordinator for a thorough assessment ofhis mental health, as required under BOP regulations. BOP Program Statement 6340.04, "Psychiatric Services," § 9(a). Such a review would have shown that Mr. Vega needed mental health treatment.
93. Instead, upon Mr. Vega's return to ADX, Defendants placed Mr. Vega back in the Control Unit, and prevented him from receiving medication or other treatment for his serious mental illness.
94. Upon information and belief, ADX staffmembers repeatedly chained Mr. Vega unnecessarily, sometimes for periods often days or more, to control behavior provoked by Mr. Vega's untreated mental illness.
95. Upon information and belief, Mr. Vega told other prisoners that he believed the ADX correctional officers were poisoning his food and spraying things into his vents. Upon
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information and belief, certain ADX correctional officers frequently taunted and provoked Mr. Vega, and then punished him when he responded.
96. On May 1, 2010, Mr. Vega was found dead in his cell in the Control Unit at ADX. The coroner's report summarizing Mr. Vega's autopsy reports that Mr. Vega died as a result ofhanging. It also states that information received from the ADX health administrator indicated that Mr. Vega ''had a long psychiatric history."
97. Upon information and belief, ADX staff failed to prevent the abuse of Mr. Vega by certain ADX staffmembers, failed to ensure that Mr. Vega was adequate fed and safely housed, failed to implement adequate snicide prevention programs at ADX, and otherwise failed to address Mr. Vega's serious, chronic and growing mental illness. As a result, Mr. Vega's mental deterioration continued, and ultimately resulted in his death.
98. As illustrated by facts set forth in this Complaint, and others to be proven at trial, Defendants have long been aware of the systematic failures in the ADX mental health system, but have done little or nothing to correct those failures. Defendants have shown deliberate indifference to the needs of ADX prisoners who have serious mental illnesses.
G. Defendants Have Retaliated Against and Interfered With Plaintiffs and Other ADX Prisoners Who Have Tried to Assert Their Constitutional and Other Legal Rights to Mental Health Treatment. 99. Counsel for Plaintiffs began communicating with ADX prisoners in the summer
of2011. After ADX prisoners began meeting with counsel, ADX staff began a campaign of interference and retaliation against those prisoners.
100. The interference and retaliation has included a range ofbehaviors, including procedural and legal improprieties, verbal abuse, actual physical harm, and overt threats of future
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retaliation. ADX staff members have directed these improper actions not only against Plaintiffs, but also against the dozens of other prisoners at ADX who regularly communicate with counsel about the subject matter ofthis lawsuit, conditions at ADX, and the BOP's treatment of mentally ill prisoners at ADX.
101. Upon information and belief, the actions by certain ADX staff members are designed to obstruct the access of Plaintiffs and class members to a judicial forum for the resolution ofthe constitutional claims asserted in this case by discouraging prisoners from talking with counsel, intimidating prisoners into withdrawing from participation in this lawsuit, and retaliating against prisoners for their efforts to work with counsel to improve mental health care conditions at ADX through this lawsuit.
(1) ADX staff have interfered with Legal Mail and confiscation of Attorney-Client Privileged Materials.
102. Pursuant to BOP regulations, legal mail is special mail that must only be opened in the presence of prisoners. See Program Statement 5265.14 (April 5, 2011) § 540.18(a). Additionally, prisoners have a constitutional right to counsel and confidential communications with their attorneys, and the United States Supreme Court has repeatedly recognized and upheld the importance of the attorney-client privilege. See, e.g., U.S. Const. Art. VI; Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Trammel v. United States, 445 U.S. 40, 51 (1980); Fisher v. United States, 425 U.S. 391,403 (1976). This attorney-client privilege is equally important and guaranteed between prisoners and their attorneys. See, e.g., Gomez v. Vernon, 255 F.3d 1118, 1135 (9th Cir. 2001), cert. denied, 70 U.S.L.W. 3291 (December 10,2001) (affirming monetary sanctions imposed on assistant attorneys general who acquired and read privileged communications from prisoners' attorneys).
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103. Since the investigation for this lawsuit began, ADX staff members have routinely opened legal mail outside the presence of prisoners, in violation of BOP policies and the attorney-client privilege. By opening the legal mail outside the presence ofprisoners and in violation of BOP procedures, ADX staffmembers improperly gain access to privileged attorneyclient communications regarding this lawsuit and other matters that are confidential.
104. Upon information and belief, by opeuing the legal mail outside the presence of prisoners, ADX staff also intends to send a ''message'' to the prisoners: ADX staff members know the nature of the confidential commuuications and will actively interfere with the prisoner's rights. At the same time, ADX staff conveys the message that, even in this constitutionally protected area, prisoners shall be denied privacy and confidentiality.
105. ADX staff members also have confiscated the legal mail of prisoners who have corresponded with counsel, in an attempt to interfere with the prisoners' ability to share information with counsel and assist in the investigation and development of this lawsuit.
106. When searching prisoners' cells for proscribed items, ADX staffmembers have purposely "lost" or destroyed legal mail and legal documents, rendering it impossible for the prisoners to replace certain documents.
107. Confiscated letters have included sealed envelopes addressed to counsel and properly labeled as legal mail. In one instance, a seuior corrections official and an SIS staff member searched a the cell of a mentally ill prisoner, opened properly labeled legal mail he was prepared to send out, and confiscated over 100 written requests ("Cop-Outs") that the prisoner had written to the psychology department, together with extensive notes the prisoner had made on staffmisconduct. The confiscated records are not contraband and were properly included in
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the prisoner's legal materials. In another instance, ADX staff opened a prisoner's sealed legal mail to Plaintiffs' counsel, which contained, among other things, medical records reflecting the prisoner's medical treatment following a suicide attempt, which the prisoner had properly received from ADX staff a few days earlier. ADX staff confiscated some of the medical records, including in particular records containing information that will be embarrassing to the BOP when it surfaces in this lawsuit. The records were not contraband and were confiscated without any legal cause or justification.
108. Other prisoners have had their correspondence and legal materials confiscated after communicating with counsel. One ADX staff member told a prisoner that the prisoner would never get his documents back and that this ''was just the beginning."
109. Certain ADX staffmembers also have confiscated the pens, paper, envelopes, and stamps of some prisoners to prevent them from documenting abuses and corresponding with counsel.
110. Moreover, certain ADX staff members purposefully delay or refuse entirely to pick up and process prisoner legal mail, hindering or preventing prisoner correspondence with counsel.
III. Other legal mail, after being picked up for processing by ADX staff, has been improperly opened and then returned, unsent, to the prisoner.
(2) ADX staff have interfered with the attorney-client relationship and retaliated against prisoners by threatening, antagonizing, and punishing prisoners who communicate with counsel.
112. ADX staff members have threatened prisoners who communicate with counsel.
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113. After meeting or corresponding with counsel, prisoners have been told by ADX staffthat the prisoner's efforts would make things harder on the prisoner and that the BOP will never change ADX.
114. An ADX staff member told a prisoner that, unless he stops communicating with counsel, he will be relocated to cells near other prisoners so as to compromise protective custody order measures. As an ADX staffmember told one prisoner, ''You make it hard, we make it hard."
115. An ADX staff member told a prisoner who is in communication with Plaintiffs' counsel, "Ifyou don't drop this lawsuit they will fuck you over, trust me on this."
116. ADX staff members have threatened prisoners in communication with counsel with a suspension oftheir privileges or write-ups for minor or nonexistent violations of rules. ADX staffhas threatened, and followed up on threats, to send prisoners to the SHU in such instances.
117. Prisoners who have been moved to the SHU under these circumstances have returned to the regular cells to find that their legal mail and personal property has been confiscated.
118. ADX staff members have told prisoners that, if they continued to be involved with this investigation, they would be sent to SHU again and their property would again be "lost."
119. ADX staffpurposefully antagonizes prisoners by calling prisoners by abusive and insulting names, including racial slurs and vulgar terms. By antagonizing prisoners, ADX staff members induce prisoners into behavior that then nominally provides a basis for punishing the prisoners by placement in the SHU or by suspending privileges.
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120. When one prisoner complamed to an ADX staff member that the staffwas taking actions that would get him killed, the staff member replied that the prisoner "should have considered that before inviting all those lawyers up here."
121. ADX staff members have accused prisoners involved in this lawsuit of being an "instigator" and of''rocking the boat."
122. Upon information and belief, ADX staff"members have attempted to dissuade prisoners from communicating with counsel by spreading false rumors that undersigned counsel is working with the government in an attempt to gam incriminating information about various pnsoners.
VI. ALLEGATIONS RELATING SPECIFICALLY TO PLAINTIFFS 123. Plaintiffs are currently incarcerated at ADX and each suffers from a serious mental illness. Several also suffer from severe functional impairments connected to their mental illnesses, which severely limits their ability to attend to their personal needs. ADX's failure to implement adequate programs ofmental health screening and treatment has violated their constitutional rights, exacerbated their serious mental illnesses, and subjected them to harm and injury, and serious risk of future harm. 124. Plaintiffs have exhausted all required conditions precedent to the commencement of this lawsuit, including their available administrative remedies pursuant to the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). A. Michael Bacote 125. Michael Bacote (pronounced "Bay-coat") is 37 years old, and grew up in Washington, D.C. He is currently serving a 28-year sentence at ADX, with a scheduled release
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date of September 7, 2034. Mr. Bacote suffers from severe Major Depressive Disorder with Psychotic Features and also exhibits some symptoms ofPTSD. He is also mentally retarded, functionally illiterate, and may be suffering the long-term effects of a serious closed head injury. A photograph of Mr. Bacote is attached as Exhibit 7.
126. Mr. Bacote has suffered serious mental disabilities throughout his life. While in primary school, he repeated kindergarten and the first grade twice, and repeated the second grade three times. Tests conducted while Mr. Bacote was in the second grade found his reading levels to be at a pre-kindergarten level. At age twelve, he was still in the fourth grade. He stopped going to school when he was thirteen.
127. Psychiatric and mental tests performed on Mr. Bacote as a teenager confirmed that he is a non-reader, and he tested far below his age group in every tested subject. As a twelve year old, Mr. Bacote scored a language age equivalent of7 years, 3 months on the Utah Tested Language Development exam. In the Wide Range Achievement Test - Revised (WRAT-R), also at age twelve, he scored in the first percentile in spelling, the 0.1 percentile in reading, and the 0.04 percentile in arithmetic.
128. Mr. Bacote was prescribed medication for psychiatric problems at an early age, including the antipsychotic Mellaril; he began taking Adderall for attention deficit disorder at age 12.
129. In connection with his prosecution for his role in a murder that occurred at USP Beaumont, psychologist Dr. Ray Coxe conducted an evaluation of Mr. Bacote's mental functioning. Dr. Coxe's tests found that Mr. Bacote had a Full Scale IQ in the mildly impaired range of 61, and Verbal and Performance IQs in the first percentile. Mr. Bacote tested at the
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second grade level for reading and spelling, and at the third grade level for arithmetic. Based on these results, his personal interaction with Mr. Bacote, and prior examination results from earlier in Mr. Bacote's life, Dr. Coxe diagnosed Mr. Bacote as suffering from mild mental retardation.
130. In 2003 or thereafter, Mr. Bacote was diagnosed by BOP psychiatrists as having recurrent Major Depressive Disorder. Since that time, Mr. Bacote has been prescribed medication to treat this condition.
131. Mr. Bacote also has been observed by BOP psychiatrists as displaying severe Paranoid Ideation. At USP Beaumont, Mr. Bacote was prescribed the antipsychotic Risperdal to treat his paranoid behavior. At ADX, Mr. Bacote has been observed by BOP staff as displaying Paranoid Ideation since at least August 2008. In particular, Mr. Bacote has repeatedly alleged that there is a staff conspiracy to kill him.
132. At USP Beaumont, Mr. Bacote repeatedly alleged that the staffwas planning to hang him in recreational cell #6, claiming that he had already informed his family and attomey of his impending murder, and advising his BOP psychiatrist to skip their next scheduled session so that the psychiatrist would not "get caught up" in the legal troubles surrounding Mr. Bacote's murder.
133. At various times, Mr. Bacote has alleged that he has a list ofthe addresses of BOP staffmembers who seek to kill him, and that staffmembers have passed him "street knives" hidden in his food.
134. Mr. Bacote has accused staff psychiatrists of diagnosing him with bipolar disorder as an attempt to make his eventual murder appear to be a suicide.
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135. One of Mr. Bacote's most persistent delusions is that the BOP is trying to kill him by tampering with his food or with his medication. As a result, he eats very little food, and the food he eats consists mostly of items purchased from the prison commissary.
136. Mr. Bacote's paranoia also strongly affects his willingness to take medication. In the past, Mr. Bacote has alleged that the pills he is prescribed change in shape and color every day. He sees this as evidence that the medication is being tampered with in an attempt to kill him. He has claimed that certain pills he has received make him feel "intoxicated."
137. Defendants are aware that Mr. Bacote suffers from Major Depressive Disorder and Paranoid Ideation; Mr. Bacote received these diagnoses from BOP psychiatrists. Defendants also are aware that Mr. Bacote suffers from mild mental retardation, because he has shown Dr. Coxe's report, which diagnoses him with mild mental retardation, to Dr. Clemmer at ADX. However, Defendants have refused Mr. Bacote's repeated requests for mental health assistance.
138. In Augnst 2009, Mr. Bacote requested treatment for his mental illness and mental retardation and to be transferred from ADX. That request was denied; Defendants stated that "a review of your file does not indicate you are mentally ill or mentally retarded."
139. In April 2011, Mr. Bacote requested treatment for his mental retardation, and transfer to another facility. That request was denied. Defendants claimed that Mr. Bacote did not meet their criteria for a diagnosis ofmental retardation.
140. On or around July 26,2011, July 31,2011, August 7, 2011, and August 8, 2011, Mr. Bacote filed Cop-Outs to ADX prison officials, requesting treatment for his mental illness and mental retardation. These requests were denied. Mr. Bacote is illiterate. However, he
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managed to complete this paperwork with the assistance ofother prisoners, who wrote out the words for Mr. Bacote, who then copied them on the required forms.
141. A BOP physician has prescribed psychotropic medication for Mr. Bacote's serious mental illness. Mr. Bacote wants and needs that medication. However, Mr. Bacote is extremely paranoid and fearful that the physician assistant responsible for delivering his medication will intentionally or accidentally give him the incorrect medication. The BOP currently insists that Mr. Bacote receive his medication crushed up in a cup. Mr. Bacote has repeatedly asked to receive his medication, which he recognizes, in solid pill form, or alternatively that he be allowed to see the mediation in whole pill form before it is crushed. The BOP has refused both requests. As a result, Mr. Bacote has been forced to chose between foregoing needed medication or consuming an unknown crushed substance he genuinely (rightly or wrongly) believes will make him sick or kill him. As ofthe time ofthis complaint, he was electing the former course and thus is struggling to cope with his severe depression and paranoia without his medication.
B. Harold Cunningham 142. Harold Cunningham is 41 years old. Before his incarceration, he lived in the
Washington, D.C. area. Mr. Cunningham has been housed in the Control Unit at ADX since 2001 and is serving a life sentence plus 380 years. Mr. Cunningham suffers from a serious mental illness that has been variously diagnosed as Paranoid Schizophrenia, Psychotic Disorder NOS and Personality Disorder NOS. A photograph of Mr. Cunningham is attached hereto as Exhibit 8.
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143. Mr. Cunningham has been incarcerated on and off since he was II years old. He was admitted to a juvenile facility in Washington, D.C. at age 16 for assault with a dangerous weapon. Within five months, he attempted suicide. Thereafter, he was transferred to St. Elizabeth's Hospital in Washington, D.C., a public psychiatric hospital for residents of Washington, D.C. At the time, Dr. James Smith diagnosed Mr. Cunningham with Conduct Disorder, Under Socialized Aggressive Needs, and Major Depression.
144. In 1988, Mr. Cunningham, then 17 years old, was arrested for cocaine possession, sentenced to five years, and sent to Maryland's high security prison in Baltimore. At the time, he refused all psychological and psychiatric treatment because he was told by other prisoners that if he received any mental health treatment or accepted any psychotropic medication, the Department of Corrections could keep him past his release date.
145. Mr. Cunningham was released in 1993. Within months, he and two other men (including one with a serious mental illness who is also currently housed at ADX) committed a series of crimes in Washington, D.C. and Maryland. At his trial, Mr. Cunningham chose to represent himself. On July IS, 1996, Mr. Cunningham attacked and stabbed a witness with a homemade knife as she was leaving the witness stand and while in full view of the judge and jury. After the judge denied a mistrial, Mr. Cunningham was convicted and sentenced to a term of life in prison plus 380 years.
146. Mr. Cunningham subsequently was indicted for attempted murder based on the courtroom stabbing. He asserted an insanity defense and was examined by Dr. Carol Kleinman, who was board-certified in psychiatry and a member ofthe American Board ofPsychiatry and Neurology, in connection with that defense. Dr. Kleinman diagnosed Mr. Cunningham with the
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following psychiatric disorders: Paranoid Schizophrenia, Antisocial Personality Disorder, Borderline Intellectual Functioning, History of Attention Deficit Disorder with Hyperactivity, along with various fonns of drug and alcohol abuse. She opined that Mr. Cunningham was not competent to stand trial and recommended that he be placed on appropriate psychotropic medications.
147. In early 1999, a hearing was conducted to determine whether Mr. Cunningham was competent to stand trial. Dr. Kleinman, however, revised her diagnosis at the hearing, and the Court found that Mr. Cunningham was competent to stand trial. A few months later, the govemment dismissed all charges against Mr. Cunningham without explanation. He was sent to the USP Marion, Illinois, and placed in long-term isolation.
148. At USP Marion, Dr. Ray Anderson conducted a mental status examination of Mr. Cunningham and concluded that he suffered from Psychotic Disorder NOS and the effects of hallucinogen abuse. Mr. Cunningham was given antidepressants and antipsychotic drug therapy. He claimed he heard voices and saw things that were not there.
149. While imprisoned at USP Marion, Mr. Cunningham was examined about once a month to coordinate psychological counseling with psychiatric treatment. A consulting psychiatrist met with Mr. Cunningham to monitor his medications and to identify potential issues that might aggravate or modify the severity of his symptoms.
150. In May 1999, as part ofthis process, Dr. James E. Adams conducted a mental status examination of Mr. Cunningham. Dr. Adams diagnosed Mr. Cunningham as suffering from Psychotic Disorder NOS, in full remission, and Personality Disorder NOS. He prescribed the antipsychotic medication Risperdal and antidepressant Prozac for Mr. Cunningham.
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151. On June 2, 2000, Mr. Cunningham was examined by Dr. Richard Urbanik, chief psychologist at Marion. Dr. Urbanik found that "Cunningham's current mental status, emotional expression, and behavior suggest significant mental health problems." Dr. Urbanik noted that, based on Mr. Cunningham's history, existing conditions, and other information available at the time ofreview, the current potential for Mr. Cunningham to harm others was high. Dr. Urbanik further noted that Mr. Cunningham was refusing all psychotropic medication.
152. In fact, Mr. Cunningham told the staff that he could not digest the medication when it was in liquid form, because it made him sick. Additionally, Mr. Cunningham was concerned that the cups of liquid had materials floating on the surface, for which no explanation was given to him.
153. Dr. Urbanik conducted another examination of Mr. Cunningham on June 30, 2000. Again, Dr. Urbanik concluded that Mr. Cunningham's current mental status, emotional expression, and behavior suggested significant mental problems, and Mr. Cunningham's potential to harm others was high. Dr. Urbanik further noted that Mr. Cunningham complained about the form ofhis medication (liquid), and was noncompliant.
154. Mr. Cunningham was transferred to ADX in December 2001. His initial psychological assessment at ADX stated that he was a ''very antisocial individual who is probably prone to misinterpret the actions and motivations of staffmembers ...." The staff psychologists (Dr. Watterson and Dr. Morrison) concluded that "mental illness ... can certainly not be conclusively ruled out at this point." Nevertheless, Dr. Morrison suggested that Mr. Cunningham try to go without his medication (Risperdal and Prozac), and promised that if he did so and experienced any problems Dr. Morrison would put him back on better psychotropic
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medication. Upon infonnation and belief, Dr. Morrison intentionally tricked Mr. Cunningham into giving up his medication so that Mr. Cunningham could be placed in the ADX Control Unit, where such medication cannot be administered. After accomplishing that goal Dr. Morrison abandoned Mr. Cunningham, who since December 2001 has been denied any form ofpsychiatric medication for his mental illness.
ISS. Without his medications, Mr. Cunningham's behavior predictably worsened over the next several years. Mr. Cunningham was cited for, among other things, refusing to leave his cell, refusing to submit to restraints, possession of weapons, and assault on corrections officers. Mr. Cunningham was held in an isolation cell in the Control Unit from 2002 to 2007. During this time, he was assaulted by corrections officers and frequently shackled to his bed, sometimes for days or weeks at a time.
156. Mr. Cunningham has received no mental health treatment at ADX, even though he has repeatedly requested it. In fact, during his time at ADX, Mr. Cunningham has formally requested mental health treatment no less than eight times.
157. On March 23,2004, Cunningham filed a Central Office Administrative Remedy Appeal for a request for psychiatric treatment. On April 30, 2004, the Central Office responded that an examination via "telepsychiatry" (a video conference between a prisoner in one location and a remote psychiatrist) indicated no mental illness. For this putative psychiatric evaluation, Mr. Cunningham was placed in a room, handcuffed from behind with shackles on his legs, and surrounded by correction officers. A psychiatrist from MCFP Springfield, viewing him through a make-shift video screen, asked Mr. Cunningham questions about his mental health issues, as if the answers received in such an environment were open and adequate to gauge a psychological
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or psychiatric problem. On June 15,2004, Mr. Cunningham filed a Central Office Administrative Remedy Appeal for, among other things, denial of psychiatric treatment. His appeal was denied.
158. On August 10, 2004, Mr. Cunningham filed another Central Office Administrative Remedy Appeal for being denied mental health medication. Mr. Cunningham specifically requested an investigation into why he was taken off Risperdal and Prozac. In his appeal, Cunningham wrote "I am in pain everyday that makes me act out in uncontrollable [sic] ways .... Records show that when I'm taking my medication 1can function without pain or suffering or incident." In response, the BOP argued, among other things, that "[i]t is evident you have received prompt, professional medical care consistent with reasonable community standards and Bureau of Prisons' policy." Mr. Cunningham's appeal was denied yet again.
159. The extent ofMr. Cunningham's treatment for his mental illness during his II years at ADX has consisted oftherapy classes on an educational channel on television, and two workbooks: "Breaking Barriers" and "Cage Your Rage."
C. Ernest Norman Shaifer 160. Ernest Norman Shaifer, sometimes known as Ernest Norman Brown, is 49 years
old. Before his incarceration, Mr. Shaifer was a resident of Washington, D.C. He has a release date of July 6, 2014. Mr. Shaifer suffers from a serious mental illness, Bipolar Disorder. He has not been provided with proper medication or treatment for this illness. A photograph of Mr. Shaifer is attached hereto as Exhibit 9.
161. Mr. Shaifer was brought up by a mother who was, herself, severely mentally ill. Marion Shaifer was diagnosed with Schizophrenia two years before Mr. Shaifer's birth. Almost
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all of Mr. Shaifer's seven siblings - and several of his siblings' children - have been diagnosed with and treated for mental illness, including Schizophrenia, Bipolar Disorder and Anxiety Disorder. Several of Mr. Shaifer's siblings have been prescribed medication to treat their mental illness. Mr. Shaifer's sister Valera has attempted suicide. In 1996, Mr. Shaifer's brother Terry discontinued his medication and committed suicide after murdering his wife and her lover in front oftheir children's elementary schooL
162. Mr. Shaifer has been in and out ofthe prison system since the early 1980s. He has been incarcerated by the BOP continuously since 1995 and served time at a number of BOP facilities prior until his transfer to USP Florence in June 1999.
163. The BOP has failed to provide psychiatric counseling and medication for Mr. Shaifer's mental condition while at ADX, despite his repeated requests that they do so. Mr. Shaifer continued to suffer severe problems ofbehavior controL
164. In January 2002, encouraged by a phone call with his father, Mr. Shaifer attempted to enroll in a BOP anger management program. In response, the BOP informed him that the anger management program emollment was full and that it could not provide him with assistance. A few days later, Mr. Shaifer assaulted a BOP chaplain.
165. Mr. Shaifer was transferred to FCI Englewood for trial on the assault charge. While at FCI Englewood, BOP officials continued to disregard Mr. Shaifer's requests for psychiatric treatment. Despite his many complaints and behavioral issues predating his assault charge, a BOP psychologist concluded that Mr. Shaifer was merely attempting to "fabricate symptoms."
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166. Mr. Shaifer's defense counsel sought an independent evaluation of Mr. Shaifer's mental condition. In July 2002, Dr. William D. Hansen rendered a tentative diagnosis that Mr. Shaifer suffered from Bipolar Disorder. Dr. Hansen recommended a mood-stabilizing medication, noting that without such treatment, there was no clinical way to verify his diagnosis or whether Mr. Shaifer's behavioral problems were treatable.
167. In December 2002, Dr. Doris C. Gundersen, a private psychiatrist hired by Mr. Shaifer's counsel, also evaluated Mr. Shaifer. Dr. Gundersen saw Mr. Shaifer on three separate occasions between December 2002 and February 2003. In March 2003, Dr. Gundersen wrote to Dr. Richard Rewey, a BOP official, with her diagnosis that Mr. Shaifer suffered from a bipolar spectrum disorder. Dr. Gundersen "strongly recommend[ed] that Mr. Shaifer be provided a trial of a mood stabilizer" and warned of her "concern[] that without a mood stabilizer, Mr. Shaifer's behavior will continue to deteriorate." In March 2003, Dr. Gundersen also stated in her report to Mr. Shaifer's counsel that there was "compelling evidence to support the existence of a serious untreated mental illoess, namely Bipolar Disorder."
168. In May 2003, following Mr. Shaifer's guilty plea on the assault charge, Mr. Shaifer's counsel moved for a reduction in his sentence, i.e., a "downward departure" from the Federal Sentencing Guidelines, based on Mr. Shaifer's mental condition. The evaluations by Drs. Hansen and Gundersen were included as support for the motion. Dr. Gundersen also testified regarding her evaluation and conclusions. The Court acknowledged that Mr. Shaifer's Bipolar Disorder had "more likely than not" contributed to the assault, but it denied the motion and sentenced Mr. Shaifer to 96 months for the assault. Mr. Shaifer was transferred back to ADX.
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169. Defendants are aware of Mr. Shaifer's severely troubled family history of mental illness. For example, the letter written by Dr. Guodersen to Dr. Rewey in March 2003 disclosed the hospitalization of Mr. Shaifer's mother for Schizoaffective Disorder. In July 2003, BOP clinical psychologist Robert L. Krick wrote in Mr. Shaifer's medical records that his maternal grandmother suffered from mental illness. Dr. Guodersen's report for Mr. Shaifer's sentencing appeal made clear that several of Mr. Shaifer's siblings have been treated for major mental illness. In October 2003, a BOP psychologist took note ofthe suicide of Mr. Shaifer's brother, but assigned it no siguificance other than possibly an impetus for Mr. Shaifer to fabricate symptoms.
170. After he was returned to ADX Florence in late 2003, Mr. Shaifer filed a lawsuit against the BOP and several ofits officials for their continued failure to provide him with adequate mental health treatment. Rather than responding to his suit on the merits, the BOP moved to dismiss the suit for failure to exhaust administrative remedies against each of the named defendants. Ultimately, the court dismissed Mr. Shaifer's clairos without prejudice on the grouod that he was asserting a mixture of exhausted and non-exhausted clairos.
171. In January 2004, the ADX Florence Discipline Hearing Officer directed that Mr. Shaifer be moved into the Control Unit. In September 2010, the Control Unit Executive Panel ignored pleas by Mr. Shaifer for mental health care and decided to keep hiro in the Control Unit, where such care is not provided to prisoners. Due to ADX's policy prohibiting prisoners in the Control Unit from receiving psychotropic medication and the isolated conditions of confinement in the unit, Mr. Shaifer's mental illness will remain uotreated and it is likely that his behavior, as a result, will continue to deteriorate. As of September 2010, when the Control Unit
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Executive Panel detennined that Mr. Shaifer would remain in the Control Unit, he had ouly received credit for 44 ofthe 78 months that he had been in that unit, and was still required to spend 56 more months there. In other words, Mr. Shaifer will remain in the Control Unit until he completes his current prison sentence in July 2014.
172. Mr. Shaifer continues to request assistance for his mental illness. On or about October 13, 2011, Mr. Shaifer requested medication for his mental illness from Dr. Severn, a BOP staffpsychologist. That request was denied -- again because ''those prisoners housed in the Control Unit are not allowed to be on psychotropic medication per Bureau Policy." Mr. Shaifer again renewed his request in December 2011. Despite Mr. Shaifer's prior requests for treatment, which included a federal court lawsuit against the BOP seeking mental health care, the BOP's response falsely asserted that Mr. Shaifer "ha[d] never requested any psychology attention about [his] issues."
173. In early 2012, a few months after Mr. Shaifer began meeting with his undersigned counsel, Mr. Shaifer eventually was evaluated by two BOP psychologists. But rather than receive a proper evaluation in an appropriate setting, Mr. Shaifer was evaluated in his cell with the cell door open, allowing other prisoners in the vicinity to overhear the discussion. Shortly after the session began, the head BOP psychologist at ADX announced that Mr. Shaifer appeared to have developed "good coping skills" and dismissed Mr. Shaifer's protestations that he suffered from a serious mental illness.
D. Jeremy Pinson 174. Jeremy Pinson is 26 years old. Before his incarceration, he lived in Oklahoma
City, Oklahoma. Mr. Pinson is serving a 22-year sentence for letters he sent threatening the
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President ofthe United States, a federal judge, a Secret Service Agent, and a juror. His projected release date is October 3, 2025. Mr. Pinson has a serious mental illness that has at various points been diagnosed as Bipolar Disorder, Schizophrenia, and Severe and Chronic PTSD. He also has Epilepsy and experiences frequent seizures. A photograph of Mr. Pinson is attached as Exhibit 10.
175. Several members of Mr. Pinson's close family have long suffered from mental illness. Both of his maternal grandparents were diagnosed with Schizophrenia, and his maternal grandmother committed snicide after a long struggle with Depression. His mother has been diagnosed with and medicated for Depression throughout most ofher adult life.
176. Mr. Pinson's childhood was marked by psychotic episodes. He began hearing voices and having visual hallucinations around the age of 7. He began receiving psychological treatment by age 8 and received his first inpatient psychiatric treatment by age 10. When he was 13, he sent threatening letters to both his mother and to the President of the United States, he stabbed a classmate with a pen, and threatened to blow up his school. He received inpatient treatment for suicide attempts and psychotic symptoms at the ages of 12, 15 and 16.
177. In 2005, prior to his trial on charges of threatening the President of the United States, Mr. Pinson underwent a court-ordered psychological evaluation to assess his competency. While being held for the evaluation, Mr. Pinson tried several times to kill himself. According to the forensic report, "Mr. Pinson had not experienced any significant period of effective psychological functioning since early childhood [and 0 Jnly with long-term psychiatric and psychotherapeutic intervention [would heJ have any hope ofdeveloping into a mature and
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psychologically healthy individual." Nevertheless, the report found him competent to stand trial; he was convicted.
178. On April 2, 2007, Mr. Pinson was sentenced to 240 months imprisonment. The Court recommended that he serve his sentence at FMC Butner, which includes the BOP's largest psychological treatment complex. The BOP rejected that recommendation, and instead sent Mr. Pinson to USP Victorville and then to FDC Houston.
179. While at FDC Houston, Mr. Pinson wrote another letter, this time threatening to kill a Secret Service Agent who testified at his sentencing. This letter resulted in another conviction.
180. At his sentencing for this conviction, the sentencing judge "strongly recommended" that the BOP conduct a "full-blown" evaluation of Mr. Pinson's ''mental and physical needs and the drugs required to deal with both" at a capable facility, identifying the MCFP Springfield and the FMC Butner as appropriate facilities. Again rejecting the Court's recommendation, the BOP placed Mr. Pinson at USP Coleman II, where his mental health problems continued.
181. Since then, Mr. Pinson has attempted suicide multiple times, including an attempted drug overdose and two incidents where he tried to hang himself. He continues to suffer from severe depression and suicidal ideation, and has sought treatment for both. The BOP has conducted more than 12 suicide risk assessments on Mr. Pinson and placed him on suicide watch at least 9 times.
182. The BOP is well aware that Mr. Pinson is mentally ill and in need of intense counseling and therapy. A January 2011 BOP Progress Report notes that Mr. Pinson has a
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history of mental health diagnoses prior to incarceration, that he has been hospitalized for mental disorders and attempted suicide, that he suffers from Schizophrenia and other Psychotic Disorders, and that he needs further mental health treatment. While in the BOP's custody, Mr. Pinson has been prescribed a litany of psychotropic medications, including the antipsychotics Olanzapine, Quietapine, Risperidone, Fluphenazine, Haldo1 and Perphenazine, antidepressants Amitriptyline, Bupropion, Mirtazapine and Sertraline, antimanic Depakote, and the anti-anxiety medication Buspirone.
183. Nonetheless, in February 2011, the BOP transferred Mr. Pinson to ADX, where he was placed in the SHU. Mr. Pinson challenged this transfer on a variety of grounds, including that his PTSD, Bipolar Disorder, and Epilepsy made him an inappropriate candidate for placement at ADX. Mr. Pinson complained that at ADX he could not receive proper mental health treatment, including the ability to participate in mental health programs. In a July 2011 response, the BOP informed Mr. Pinson that ADX was "providing [mental health] programs consistent with [his] security needs." In or around June 2011, Mr. Pinson was transferred to an ADX General Population unit.
184. In December 2011, Mr. Pinson asked Dr. Severn, an ADX staff psychiatrist, for a referral to the BOP's Habilitation Treatment Program. Mr. Pinson has received no such referral.
E. John W. Narducci, Jr. 185. John W. Narducci, Jr. is 43 years old and grew up in Connecticut. Mr. Narducci
is serving a 211 month sentence at ADX. He has been in federal custody since 1999 and has a release date of February 15, 2015. Mr. Narducci suffers from a serious mental illness, including a Mood Disorder as well as a Mixed Personality Disorder with Antisocial and Borderline
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Features. He also exhibits symptoms of complex PTSD. Mr. Narducci exhibits signs and symptoms ofa Gender Identity Disorder in that he frequently wears his long hair in a feminine style, shaves his body, and wears makeup that he makes using colored pencils. Mr. Narducci's gender identity and sexual orientation, while comfortable to him, exacerbate difficulties that he experiences dealing with other prisoners in violent, high security environments, particularly given his severe and chronic mental illness. A photograph of Mr. Narducci is attached as Exhibit II.
186. When Mr. Narducci was 4 years old, his father was shot while Mr. Narducci was present in the family home; his father subsequently died from the wound. His mother later remarried, but when Mr. Narducci was II, his mother suffered a heart attack and died suddenly in his sole presence. After the death of his mother, Mr. Narducci lived with his stepfather and siblings. When Mr. Narducci was 16, he discovered that his stepfather had molested his younger brother. Days later, Mr. Narducci's stepfather committed suicide.
187. Mr. Narducci was first treated for mental illness as a teenager. At age 16, he was admitted to a hospital for inpatient treatment because "the failure ofout-patient therapy and John's increasingly aggressive behavior indicated the need for inpatient evaluation and treatment." At that time, the psychiatric staff at the hospital stated that "continued psychotherapy within a structured milieu is essential for John's well-being."
188. From the late 1980s through December 1998, Mr. Narducci was in and out of the state prison system in Connecticut and Oklahoma. During a IO-year period of incarceration, Mr. Narducci spent much of his time in extended isolation, though he did receive mental health treatment for multiple disorders, including Major Depression and a Personality Disorder. As part
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of his treatment, Mr. Narducci was prescribed psychotropic medications including Depakote, Thorazine, Zoloft, Wellbutrin, and Atavan.
189. Prior to his release from state custody, Mr. Narducci requested that he be enrolled in a mental health follow-on care program that would continue to provide him essential mental health services. This request was not granted, and on December 3, 1998, Mr. Narducci was released from the Connecticut state "supermax" facility in Somers, Connecticut, directly to the street, with no transitional services or provision made for any psychiatric or other mental health services. Within months, he was back in custody. In April 1999, while Mr. Narducci was in the custody of the Connecticut Department of Correction pending sentencing, the mental health staff identified him as suffering from multiple mental health disorders and prescribed treatment and medication. In November 1999, he pled guilty to four counts ofbank robbery.
190. On November 15, 1999, the court ordered that Mr. Narducci undergo psychological evaluation and testing prior to sentencing in light ofhis mental health history. Mr. Narducci was sent to USP Atlanta where BOP staff conducted the evaluation. The BOP evaluation found that Mr. Narducci suffered from several mental disorders, but also concluded that he was malingering and that psychotherapy was contraindicated.
191. A private psychiatric evaluation conducted following the BOP report concluded that "[t]he evaluation done at USP Atlanta of John Narducci [was] not a valid assessment of his mental condition."
192. The sentencing court reviewed Mr. Narducci's mental health history, the BOP evaluation, and the private evaluation. At the sentencing hearing, the court stated ''it is my conclusion that Mr. Narducci does suffer from serious psychological and emotional
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problems...." On October 26,2000, the court entered its judgment in Mr. Narducci's case, ordering a term of imprisonment of ISO months and recommending to the BOP "(I) that the defendant be designated to a facility which has programs sufficient to deal with his mental, emotional, and psychological problems, and (2) that the defendant receive intensive psychological testing and treatment throughout his term ofincarceration."
193. Following sentencing, Mr. Narducci remained at USP Atlanta. Contrary to the recommendation ofthe sentencing court, the BOP did not provide adequate treatment for Mr. Narducci's mental illness. In or around November 2000, the BOP transferred Mr. Narducci to FCI Otisville, and again failed to provide adequate treatment for Mr. Narducci's mental illness as had been recommended by the sentencing court. On October I, 2003, Mr. Narducci assaulted and seriously injured another prisoner.
194. In or around March 2004, the BOP transferred Mr. Narducci to USP Allenwood, but again the BOP failed to provide adequate mental health care as recommended by the sentencing court. On August 10, 2005, Mr. Narducci assaulted a BOP corrections officer at USP Allenwood.
195. In or around July 2007, the BOP transferred Mr. Narducci to ADX. Since his incarceration at ADX, Mr. Narducci has been punished for multiple acts ofviolence. Mr. Narducci has requested mental health treatment from BOP staff at ADX on numerous occasions. The BOP has failed to provide Mr. Narducci with appropriate mental health care consistent with the recommendations ofthe sentencing court more than ten years ago.
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196. Mr. Narducci is scheduled to be released into the community in 2015. Without adequate mental health care, when his sentence expires Mr. Narducci will have a very, very difficult time returning to society safely and successfully.
VII. ALLEGATIONS RELATING SPECIFICALLY TO THE INTERESTED INDIVIDUALS
197. Interested Individuals Jaison Leggett, Herbert Perkins, John J. "Jack" Powers, William Sablan, David Shelby and Marcellus Washington are currently incarcerated at ADX. Each suffers from a serious mental illness. Several also suffer from severe functional impairments connected to their mental illnesses, which severely limits their ability to attend to their personal needs. ADX's failure to implement adequate programs ofmental health screening and treatment has violated their constitutional rights, exacerbated their serious mental illnesses, and subjected them to harm and injury, and serious risk of future harm.
198. Each Interested Individual has requested, in various ways, mental health care at ADX. Counsel have been unable to ascertain whether the Interested Individuals have taken every action necessary to exhaust administrative remedies to the extent required by the PLRA. Once counsel confirms that exhaustion is complete, each will be added as a Plaintiff.
199. Counsel's inability to ascertain the Interested Individual's exhaustion status stems from several factors. First, each Interested Individual is mentally ill, and at least one is mentally retarded. Those limitations impair their ability to recall and report every effort they may have made to exhaust administrative remedies. Some also require assistance of counsel in completing the exhaustion process.
200. Second, although counsel have submitted to the BOP almost 60 Freedom of Information Act ("FOlA") requests for BOP files relating to ADX prisoners, the BOP has yet to
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produce a single file relating to any current ADX prisoner. Counsel submitted proper FOIA requests for Mr. Sablan's file on August 3, 2011, Mr. Leggett's on September 7,2011, Mr. Powers' on November 10,2011, and Mr. Washington's and Mr. Perkins' on January 5, 2011. None has been provided. As a result of those failures and the BOP's refusal to produce dozens of other files, on June 11,2011, counsel for Plaintiffs sued the BOP in the United States District Court for the District of Columbia to enforce the BOP's obligations under FOIA. Once the BOP complies with its FOIA obligations, counsel will be better able to assess the extent ofthe Interested Individual's exhaustion efforts.
201. Third, and most importantly, the BOP's mismanagement of the care and custody of seriously mentally ill prisoners at ADX is exacerbated by the absence of any effective mechanism for those prisoners to address concerns or complaints they have about inadequate medical treatment or staff misconduct towards mentally ill prisoners and others. Although the BOP ostensibly maintains an "administrative remedy" process that allows prisoners to complain about various issues, the administrative remedy process is itself a kangaroo court that throws bureaucratic roadblocks at prisoners' feet and that is wholly inadequate as a means of addressing serious concerns, including complaints about constitutionally inadequate mental health care services at ADX.
202. Upon information and belief, and by way of illustration only, ADX staff members deny prisoners access to forms that the BOP requires prisoners to use to submit complaints, "lose" administrative remedy paperwork or delay its submission so that prisoner appeals are deemed "untimely," fail to adequately investigate prisoner complaints, and fail to remedy
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obvious problems brought to the BOP's attention by means of those prisoner complaints that do evade the impediments imposed by the BOP itself.
203. In addition, prisoners have no effective access to a ''watchdog'' to investigate and address misconduct by correctional staff. Specifically, all corrections functions at ADX are the responsibility of Captain Russell Krist, a veteran BOP correctional officer. Like most other BOP facilities, ADX also employs a Special Investigative Agent ("SIA") whose responsibilities include investigating allegations of misconduct by ADX staff. Accordingly, at least in theory, the SIA's presence at ADX gives prisoners on-site access to a BOP official with the power to investigate and initiate remedies for staffmistreatment of prisoners, including the mentally ill. At ADX, that theoretical access is a cruel hoax.
204. Specifically, the BOP has destroyed any semblance of an effective watchdog function at ADX by assigning the SIA role to Dianna Krist, who is the wife of Captain Russell Krist. Thus, at ADX, the watchdog is married to the person whose staffthe watchdog is responsible for investigating.
205. The BOP's own written policy specifically prohibits its employees from involvement in "situations where their official actions affect or appear to affect their private interests, financial or non-financial." BOP Program Statement OCG 3420.09 § 20. The same policy prohibits BOP employees from "taking official action on matters that affect the financial interests of the employee [or] a spouse." BOP's employment of Mrs. Krist as ADX's SIA violates the letter and spirit of Program Statement OCG 3420-09 and fatally compromises the ADX process for resolving the staff misconduct alleged in this lawsuit.
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206. Particularly when considered in combination with the wholly ineffective administrative remedy process described above, the patent conflict of interest created by the duties and relationship of Russell Krist and Dianna Krist contributes substantially to an atmosphere in which ADX staff can and do abuse and neglect mentally ill ADX prisoners, including the Interested Individuals, without any effective oversight or prisoner recourse.
207. As detailed above, for years ADX prisoners have been begging for adequate mental health treatment, through administrative filings and lawsuits, among other means. That the ADX mental health system remain in shambles is plain evidence that no real remedy is available through further administrative filings.
A. John Jay Powers 208. John Jay ("Jack") Powers is 50 years old. He grew up in upstate New York and
lived in Florida immediately before his incarceration. Mr. Powers is serviog a sentence for bank robbery and a prison escape, with a release date of May 2, 2030. Mr. Powers currently resides in the "General Population" Unit at ADX after being held in the Control Uuit for nearly ten years. A photograph of Mr. Powers is attached as Exhibit 12.
209. Mr. Powers suffers from serious mental illness, including severe Complex PTSD and a Personality Disorder with Narcissistic, Borderline and Antisocial Features. While in the custody of the BOP, Mr. Powers has engaged in severe self-mutilation over the past 10 years, amputating his own fingers, testicle, scrotum and earlobes, cutting his Achilles tendon, and trying to kill himself on several occasions. He has not been provided with proper medication or treatment for his serious mental illnesses despite the obvious physical harm Mr. Powers has inflicted upon himself.
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210. Mr. Powers entered the custody of the BOP in 1990. At that time, he had never exhibited or been treated for serious mental illness.
211. On July 21,1994, Mr. Powers witnessed the murder of Eddie Wong, another prisoner at USP Atlanta. Three prisoners, whom Mr. Powers believed were members ofa prison gang known as the Aryan Brotherhood, stabbed the victim thirteen times. After the attackers left the victim's cell, Mr. Powers sought to assist him, carrying him down a flight of stairs to the ground floor of the prison. The victim was taken to the hospital but died as the result of his injuries. Following this murder, Mr. Powers was moved to USP Atlanta's segregation unit because, as a witness to the attack, prison officials determined that his safety was compromised. While in segregation, Mr. Powers was threatened by a prisoner he believed to be a senior Aryan Brotherhood member.
212. Mr. Powers subsequently agreed to testify against the three men who had been charged with killing Mr. Wong. He testified twice (the first trial resulted in a hung jury), and the prisoners were convicted. Mr. Powers was transferred to FCI Allenwood, where he was threatened periodically by members ofthe Aryan Brotherhood as a result of his testimony. Because of the threats, Mr. Powers was placed in protective custody to segregate him from those threatening to kill him. At around the same time, he began to experience symptoms ofPTSD, a severe anxiety disorder that can develop after exposure to an event that results in psychological trauma. Mr. Power's initial symptoms included insomnia and anxiety attacks.
213. In 1997, a BOP psychologist determined that Mr. Powers was suffering from PTSD. Thereafter, in January 1999, Mr. Powers was transferred to a medium security prison, where he remained in protective custody. Shortly after his transfer to that facility, Mr. Powers
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learned that the BOP planned to move him from segregated housing to a general population unit where he was more likely to encounter prisoners who would seek to harm him as a result ofhis
1995 testimony. He also learned that the u.s. Attorney's Office would not seek to obtain the
sentence reduction as promised in exchange for his testimony. In May 1999, fearful for his own life and safety and suffering increasingly from PTSD, Mr. Powers escaped. After two days he was apprehended and returned to prison. In June 2001, Mr. Powers was tried and convicted of escaping and sentenced to additional imprisonment.
214. In October 2001, Mr. Powers was transferred to ADX and placed in the Control Unit, where he had been ordered to serve a 60-month term as a result of the escape. Upon entering the ADX Control Unit, Mr. Powers was immediately threatened by individuals he believes to be members of the Aryan Brotherhood, many of whom are housed at ADX. Those threats, and the continuing effects ofhis untreated PTSD, caused Mr. Powers to slowly descend into madness and horrific self-harm.
215. In July 2002, seven months after arriving at ADX, Mr. Powers rammed his head into the metal door jamb ofhis cell. Two weeks later, he was transferred to MCFP Springfield for a psychiatric evaluation. BOP records relating to that transfer confirm the belief by clinicians at ADX that while at ADX Mr. Powers ''has experienced a great deal of verbal abuse and threats from inmates in adjacent cells due to their belief that he is an informant." Mr. Powers spent a month at MCFP Springfield, during which time his PTSD diagnosis was reaffirmed, and he was treated with medication. However, upon his return to the ADX Control Unit in August 2002, his medication was suddenly discontinued. Almost immediately, his self-harm and mutilation
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began, resulting in disciplinary incident reports for self-mutilation in October 2002, October 2004, and February 2005.
216. On October 13, 2005, he was again transferred to MCFP Springfield after severely lacerating his scrotum with a piece of sharp plastic. His PTSD diagnosis was again confirmed by BOP doctors, and he was again stabilized with medication. But in December 2005 the BOP again returned him to the ADX Control Unit and again abruptly discontinued his medication.
217. In April 2006, following a meeting with a BOP psychologist, Mr. Powers returned to his cell to discover that his possessions had been moved to a new cell located on a different range. The new range housed Aryan Brotherhood members, who immediately began to threaten Mr. Powers. Mr. Powers broke the glass on his television set, which he used to cut himself. Defendant's ''response team" intervened and placed Mr. Powers in leg irons, handcuffs and a belly chain, which he wore in his cell for several days.
218. On July 18, 2006, Mr. Powers amputated his testicle. 219. In or around 2006, Mr. Powers attempted to commit suicide by ingesting a large quantity of aspirin. 220. On September 6, 2007, Mr. Powers bit offhis finger. 221. On April!, 2008, Mr. Powers inserted a staple into his forehead. 222. In December 2008 he amputated one of his fingers, tore out the stitches used to close the wound, and then swallowed a toothbrush. 223. On February 2,2009, Mr. Powers cut a triangular flap of skin out of his face and inserted several staples into it.
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224. On July 6, 2009, Mr. Powers cut his wrist, bled all over his cell, and was found unconscious and unresponsive by ADX staff members. Several weeks after the suicide attempt, in July 2009, the BOP again transferred Mr. Powers to MCFP Springfield. This time, however, he was not medicated. Rather, despite the BOP's own multiple prior diagnoses of serious mental illness and the manifest physical evidence ofprofound mental illness reflected in Mr. Power's disfigured body, a BOP psychologist determined:
"Inmate is not in need of custody for care or treatment. He does not have an active mental disorder. He does not require any further evaluation in an inpatient psychiatric facility. Considerations that he has some form of psychosis, thought disorder, or mental illness are unfounded." 225. Accordingly, in August 2009 Mr. Powers was again returned to ADX and again placed in the Control Unit with no mental health treatment. 226. Four months later, on December 3, 2009, Mr. Powers bit offhis pinkie. 227. In 2009 and 2010 Mr. Powers covered most of his body with tattoos that he calls "Avatar Stripes," which are visible in the photograph attached as Exhibit 7. He created his tattoos by slicing thousands oftiny slits into his skin with a razor blade and rubbing carbon paper dust into the slits. 228. On December 20, 2010, Mr. Powers amputated his scrotum and attempted to suture the wound himself. 229. In March 2011, Mr. Powers completed his term in the Control Unit. Although his original 60-month Control Unit term would have expired in 2006 had he earned credit for each month he served there, because of his serious mental illness he was unable to comply with the strict reqnirements governing earning credit for time served in the Control Unit. In many instances, he was denied credit for time served because he had mutilated himself. Thus, the
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ravages of his untreated serious mental illness both caused his permanent disfigurement and extended his term in the Control Unit, where he was housed among and tormented by members of the gang he testified against, pursuant to the directive ofthe same Department of Justice for which he provided that testimony.
230. Following his transfer from the Control Unit into the ADX general population, Mr. Powers continued to receive no mental health care in the ADX general population and continued to suffer the grotesque symptoms of his mental illness.
231. On January 12, 2012, Mr. Powers sliced off his earlobes, using pencils as tourniquets.
232. On March 21,2012, Mr. Powers sawed through his Achilles tendon with a sharp piece of metal, nearly severing it. The injury was surgically repaired and covered with a hard cast. Mr. Powers soon removed the cast and began supporting the injured ankle with a splint he made from a sock.
233. In May 2012, after Mr. Powers had again mutilated his genitals, and only a few weeks after the BOP became aware that he was being evaluated by a psychiatrist retained by his counsel, the BOP began treating him with the powerful antipsychotic medication Haldol. However, he still has no access to psychological counseling or other mental health care, and still remains at ADX, rarely leaving his cell, thinking of suicide daily, and often slashing or cutting himself.
B. Marcellus Washington 234. Marcellus Washington is 39 years old. He spent most of his youth in New Jersey.
He is serving a life sentence at ADX and is currently housed in the Control Unit. Mr.
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Washington suffers from a serious mental illness, including a severe Mood Disorder and a Mixed Personality Disorder with Borderline and Antisocial Features. He also exhibits signs and symptoms ofPTSD and is mentally retarded and functionally illiterate. A photograph of Mr. Washington is attached as Exhibit l3.
235. Since childhood, Mr. Washington has been treated on multiple occasions for mental illness. During the late 1970s and/or early 1980s, Mr. Washington was treated with Thorazine and MeHaril, two powerful antipsychotic medications. Early psychiatric and psychological evaluations showed that Mr. Washington had mood swings which stemmed, at least in part, from mental retardation and massive parental deprivation. Mr. Washington was placed in his first group home when he was seven years old, because his severely mentally ill mother could not care for him. He subsequently lived in, and ran away from, various foster homes, group homes, and residential facilities. In 1982, when he was ten, Mr. Washington was returned briefly to the care of his mother, who soon abandoned him with his siblings on a New York City park bench. Between 1977 and 1985, various child study teams affiliated with the New Jersey Board of Education and its school districts found deficiencies in Mr. Washington's emotional, social, and academic functioning. Specifically, these teams found that Mr. Washington has a neurological impairment, suffers from environmental deprivation, and exhibits mood swings that ranged from a manic hyperactivity to a depressed lethargic mood. Prior to the age of l3, Mr. Washington spent time at the Jersey City Medical Center Community Mental Health Clinic and the Arthur Brisbane Child Treatment Clinic, a public psychiatric hospital for children.
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236. In 1996, during his trial for armed robbery and caIjacking, Mr. Washington was housed in the Office of Interstate Services in New Jersey and was treated with high dosages of the antidepressant Sinequan. Upon his conviction, Mr. Washington was transferred to USP Lompoc and, in October 2001, to USP Pollock. Based on his intake processing at USP Pollock, the BOP recognized that Mr. Washington experienced symptoms of depression and had suicidal tendencies. In 2001 and 2002, Mr. Washington received psychotherapy sessions for his depression.
237. On April 8, 2002, Mr. Washington visited the psychology uuit at USP Pollock and requested care urgently. He met with Dr. Gallagher, a BOP staffpsychologist, and requested treatment for mental illness based primarily on his stress levels and his contemplation of suicide. Mr. Washington showed Dr. Gallagher five or six superficial cuts around his wrist and informed Dr. Gallagher that he did not think he was capable ofkilling himself, but he was considering provoking someone else to kill him. Dr. Gallagher did not conduct a full suicide assessment or psychological workup, but merely scheduled an appointment with Mr. Washington for the following week. Dr. Gallagher also failed to place Mr. Washington on suicide watch or refer him for a more complete psychiatric evaluation. Two days later, Mr. Washington assaulted a BOP administrator.
238. In November 2002, in connection with his trial for the assault, Mr. Washington was evaluated by Drs. Kevin J. McBride and Anthony A. Jimenez at FMC Butner. This evaluation concluded that Mr. Washington suffers from severe Antisocial Personality Disorder, is mentally retarded, and has moderate congenital brain impairment. The report noted that Mr. Washington's prior records reveal that he has trouble adapting to the prison environment, is
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functionally illiterate, suffers from emotional, social, and academic deficits, and had been treated with various antipsychotic medications and antidepressants prior to his incarceration with the BOP. A second evaluation was conducted in June 2003 by Dr. Thomas Fain at USP Pollock, during which Dr. Fain conducted various mental assessments of Mr. Washington. In the spelling and reading subscales of the Wide Range Achievement Test-3, Mr. Washington performed in the 0.02 percentile. The Wechsler Adult Intelligence Scale-III indicated that Mr. Washington was mentally retarded, and various other tests indicated the presence ofa congenital brain impairment.
239. Since at least 2002, Mr. Washington has been observed engaging in selfharm, often by cutting himself. Prior to his transfer to ADX, Mr. Washington attempted to commit suicide by trying to hang himselfin the USP Pollack SHU. The BOP staff took him to an observation cell, where he was visited by Dr. Gallagher. Upon obtaining a promise from Mr. Washington that he would not attempt to kill himself, Dr. Gallagher had Mr. Washington returned to the SHU without further treatment. Following his transfer to ADX, an ADX employee reported observing that Mr. Washington twice cut his wrist with a razor blade. The Operations Lieutenant was notified of Mr. Washington's behavior, and Mr. Washington was punished for his suicide attempt with a seven-day loss of his television and radio privileges. He did not receive any treatment for mental illness.
240. In November 2011, Mr. Washington filed a Request for an Administrative Remedy, complaiuing that the BOP ignored evidence of his mental illness, his history of depression and his suicidal tendencies when it referred him for placement in the Control Unit.
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He also complained that he has never received adequate treatment for these conditions. His request was denied, as were his appeals from that denial.
C. William Concepcion Sablan 241. William Concepcion Sablan is 47 years old. He is originally from Saipan, in the
United States Commonwealth of the Northern Mariana Islands. He is currently serving a sentence oflife without the possibility ofparole at ADX. Mr. Sablan suffers from a serious mental illness that has been diagnosed at various points as Psychotic Disorder NOS, Major Depressive Disorder, PTSD, Cognitive Disorder NOS, Posttraumatic Brain Injury, and severe Personality Disorder. A photograph of Mr. Sablan is attached as Exhibit 14.
242. Mr. Sablan was the thirteenth of fifteen children. As a child, Mr. Sablan and his siblings were subject to harsh and frequent beatings from their father. They were kicked, slammed into walls, beaten with fan belts, and choked. Mr. Sablan manifested anti-social behavior while in middle school, including excessive absenteeism, failing school work, and suspensions. Mr. Sablan never completed the eighth grade, dropping out of school in 1979, when he was fifteen. At a young age, he began abusing drugs, including methamphetamine, marijuana, and alcohol.
243. Mr. Sablan has been in and out of prisons since 1984. Between 1984 and 1997, Mr. Sablan pleaded guilty or was convicted of six felonies and was arrested at least fifteen other times.
244. Two incidents in 1995 precipitated the serious deterioration of Mr. Sablan's mental health. His daughter Mae was killed in a hit and run accident and the perpetrator was never caught. Mr. Sablan, traumatized by her death, became intensely paranoid and obsessed
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with finding the driver. He disappeared into the jungle for days at a time, claiming to be looking for her killer. Mr. Sablan claimed to see his dead daughter walking around his house. In public, he became extremely aggressive when he saw adults being mean to children.
245. In September 1995 Mr. Sablan suffered serious head trauma after being attacked by several men, one of whom hit Mr. Sablan in the head with a machete. He received a five centimeter laceration ofthe posterior scalp that shaved offa three centimeter disc ofthe external table of his skull, and another five centimeter laceration on his right anterior scalp. After the machete attack, Mr. Sablan's demeanor and mood changed. He began to misunderstand events and lose track of conversations, but would become furious if anyone asked him about his changed behavior. Mr. Sablan began harboring delusions that the someone was after him and would burst into flight when he thought someone was pursuing him. He would climb coconut trees and stare into the jungle all night, looking for his imaginary pursuers.
246. While in custody in 1997, prison medical officials prescribed Mr. Sablan the antimanic agent Depakote and the powerful antipsychotic medication Haldol. He also received a mental health screening on these occasions from Dr. Marc Herbst. Though Mr. Sablan denied any history ofpsychotic symptoms, Dr. Herbst diagnosed him with PTSD and post-traumatic brain injury, possibly temporal lobe epilepsy.
247. While incarcerated in 1999, Mr. Sablan and others participated in a prison riot and escape. For his role in these actions, Mr. Sablan was sentenced to 252 months imprisonment and transferred to prison in the continental United States.
248. Despite his psychiatric diagnoses and history ofmedication, as well as transfer paperwork that suggested a detailed psychiatric examination be conducted upon arrival,
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Mr. Sablan was only given a perfunctory screening when he arrived at USP Florence. The entire examination consisted ofthe physician's assistant merely asking Mr. Sablan ifhe had any mental issues. The BOP also failed to review his psychotropic medication upon his arrival, despite a written BOP file entry directing such a review. Mr. Sablan then was placed in a two person cell with his distant cousin Rudy Sablan and a third prisoner, Joey Estrella. Under the BOP's own rules, the mental health staff at ADX should have followed up his initial processing with an evaluation within 24 hours of Mr. Sablan's arrival. The staff at USP Florence failed to do so. The staff also failed to provide Mr. Sablan with his psychotropic medication.
249. On October 10, 1999, only three days after arriving at ADX, Mr. Sablan and his cousin killed Mr. Estrella. Mr. Sablan was charged with murder and his defense counsel sought to have him found incompetent to stand trial due to his psychiatric illnesses. The BOP claimed, however, that Mr. Sablan was not mentally ill and was merely malingering.
250. In July 2001, Dr. Laura Post examined Mr. Sablan, and diagnosed him with PTSD and a Psychotic Disorder Due to Manic Episode. She prescribed him the potent antipsychotic Haldol. Also in July 2001, Dr. Rose Manguso conducted a neuropsychological evaluation of Mr. Sablan. She concluded that he suffered from neuropsychological deficits which stemmed from the brain damage caused by prior head trauma and prior emotional or psychological disturbances. She concluded that these neuropsychological deficits could easily exacerbate the symptoms of Mr. Sablan's PTSD and his Mood Disorder with Psychotic Features.
251. In September 2001, Drs. James Jacobson and Todd Robert Poch evaluated Mr. Sablan for over twenty-five hours, and concluded that he suffered from an Anxiety and Mood Disorder with Psychotic Features. They suggested that Mr. Sablan receive the antimanic
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drug Tegretol and the antipsychotic drug Risperdal. Dr. Poch noted Mr. Sablan's fanciful delusions, including claims that he was the chief of the Chamorros (his indigenous tribe on Saipan), that had the psychic ability to detennine the outcome ofhis own trial, and that he knew the location ofAmelia Earhart's plane. Dr. Poch also reported that Mr. Sablan had received a Full Scale IQ of77 on the intelligence test he had been administered.
252. In September 2003, psychiatrist Dr. Frank G. Fortunati examined Mr. Sablan. Dr. Fortunati observed Mr. Sablan experiencing auditory hallucinations of three different people talking to each other, that Mr. Sablan claimed he could hear via a satellite connection and a computer located in his brain. Mr. Sablan also claimed that the government could hear all the thoughts of everyone in the world through the use of satellite connections. Dr. Fortunati concluded that Mr. Sablan was in a floridly psychotic state.
253. In May 2004, Dr. Ruben Gur conducted a Quantitative Functional Brain Imaging Consultation based on MRI images of Mr. Sablan's brain. Dr. Gur indicated that the abnormalities in low grey matter were consistent with parenchymal loss caused by head injury, and that the behavioral consequences of such abnormalities could be severe, potentially causing intensified aggressive urges and an impaired ability to control emotional output.
254. Based on these findings, on June 10, 2004, Judge Wiley Y. Daniel found that Mr. Sablan was suffering from a mental disease or defect rendering him mentally incompetent to assist properly in his defense. Judge Daniel ordered that Mr. Sablan be hospitalized and treated for up to four months to determine whether he could attain the capacity for the trial to proceed. Mr. Sablan was transferred to FMC Burner.
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255. While at FMC Butner, Mr. Sablan was floridly delusional. He made a series of claims about Amelia Earhart and her plane, including that he found her plane 20 years ago and that Earhart's spirit had been pursuing him ever since, trying to get him to solve the mystery. He relayed his claim in a letter to the Amelia Earhart Foundation. Mr. Sablan also spoke frequently about brain interference from satellites and his continuing frustration that his daughter's killer had never been caught. BOP physicians Drs. Byron Herbel and Robert Cochrane expressed doubt that Mr. Sablan's condition was the result of malingering, and hypothesized that he could be suffering from Delusional Disorder or Late Onset Schizophrenia. They prescribed him a cocktail ofdrugs consisting ofantimanic drug Depakene, antipsychotic drug Risperdal and antidepressant Remeron.
256. BOP officials were unable to render Mr. Sablan competent for trial within the four month time limit ordered by Judge Daniel. Upon the BOP's request, Judge Daniel ordered an additional 120 days of attempts to render Mr. Sablan competent.
257. In January 2005, after many months of this extensive regimen ofpsychotropic drugs and constant psychiatric treatment and therapy, the evaluators at FMC Butner concluded that Mr. Sablan was competent to stand trial. Nonetheless, Mr. Sablan continued to endorse the same delusions, only slightly diminished, and with a sense of embarrassment. In April 2005, Mr. Sablan was still claiming that he had found Amelia Earhart's plane, but admitted that the plane he found would require verification to prove its origin. He also admitted that he was still receiving interference from the satellites, but said that watching television helped him ignore it.
258. Dr. Herbel's final report at FMC Butner diagnosed Mr. Sablan with Psychotic Disorder NOS; Major Depressive Disorder, Single Episode, Moderate; Cognitive Disorder NOS;
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Antisocial Personality Disorder; and addictions to various illicit drugs. Dr. Herbel also noted that Mr. Sablan's increased depression was a common outcome after patients with Schizophrenia become medicated and become aware that their beliefs are merely delusions.
259. In Apri12005, Judge Daniel found that Mr. Sablan had recovered sufficiently to stand trial. At trial, the issue of Mr. Sablan's mental competence was extensively litigated. Dr. Gur testified that scans of Mr. Sablan's brain showed that even the least damaged areas were abnormal. Dr. David Lovejoy, a neuropsychologist, testified that Mr. Sablan suffered from Traumatic Brain Injury, Psychotic Disorder, and PTSD.
260. The jury found Mr. Sablan guilty ofmurder. Judge Daniel thereafter sentenced Mr. Sablan to life imprisonment without the possibility of parole. Judge Daniel also recommended that "the Bureau ofPrisons continue, on an uninterrupted basis, with a regimen of medicines (previously referred to as psychotropic medications) and other therapeutic treatment (including art supplies) currently in place to provide the defendant with the maximum ability to serve his life sentence with minimal disruptions to himself or others."
261. Mr. Sablan was thereafter returned to ADX. Since Mr. Sablan's arrival at ADX, the BOP has completely ignored Judge Daniel's recommendations concerning Mr. Sablan's mental health care. Although Mr. Sablan receives psychotropic medication, the BOP refuses to give Mr. Sablan any psychological or other therapeutic treatment in accordance with Judge Daniel's sentencing order.
D. Jaison Leggett 262. Jaison E. Leggett is 41 years old. He grew up in Washington D.C. Mr. Leggett is
currently serving a life sentence at ADX. Mr. Leggett suffers from a serious mental illness that
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has been variously diagnosed as Schizophrenia, Bipolar lllness, Major Depression and Borderline Personality Disorder. A photograph of Mr. Leggett is attached as Exhibit 15.
263. Starting when he was still a teenager, Mr. Leggett was admitted six times to St. Elizabeth's Hospital. Many ofthese admissions followed a suicide attempt. During his stays at St. Elizabeth's, psychiatrists' records repeatedly noted that Mr. Leggett may suffer from Schizophrenia, Antisocial Personality Disorder, Borderline Personality Disorder, and Major Depression. Psychiatrists noted that Mr. Leggett mutilates himself and exhibits suicidal ideation. During one of his stays at St. Elizabeth's he attempted suicide and started a fire. His records also indicate that outside of the hospital his behavior included setting fires, animal cruelty, and drug abuse.
264. Mr. Leggett has been in custody since August 1996, and has been confined at ADX since August 22, 2002, following a transfer from USP Leavenworth.
265. At ADX Mr. Leggett has complained of pain in his right leg that he attributed to a 1991 gunshot wound. Mr. Leggett regularly sought treatment, and even requested that BOP medical stafforder his leg to be amputated. The BOP staff acknowledged that Mr. Leggett suffered from osteomyelitis in his leg, but refused to approve the amputation. In response to intense pain, on August 15,2003, Mr. Leggett cut himselfwith a razor blade and then swallowed the razor blade.
266. In November 2003, Mr. Leggett again used a razor blade to cut an artery in his leg, in an effort to cut out the infection himself. When BOP staff attempted to stop him from cutting his leg any further, Mr. Leggett swallowed the razor blade. He was subsequently
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transferred to the MCFP Springfield, where his leg was amputated. BOP psychology staffthen placed Mr. Leggett on suicide watch.
267. After BOP medical staff amputated Mr. Leggett's leg, he was fitted with a prosthetic. Shortly after receiving his prosthetic, Mr. Leggett began complaining to the BOP that the prosthetic did not fit properly and was causing him pain. He repeatedly requested medical attention from the BOP related to this pain.
268. Mr. Leggett's pain was so severe while using the prosthetic, that he was unable and unwilling to use it. In a desperate attempt to receive medical attention for the pain he was experiencing, on July 30, 2005 Mr. Leggett again used a razor blade to cut his leg. He did so once again on November 29,2006, and after he cut his leg he swallowed the razor blade. In addition, Mr. Leggett swallowed a razor blade and finger nail clippers on both September 8, 2007 and January 24,2009.
269. Several years ago, out of frostration with his lack of medical treatment and because ofcontinuing pain caused by the improperly fitted prosthetic, Mr. Leggett damaged his prosthetic leg and swallowed some ofits metal parts. The BOP has refused to replace Mr. Leggett's prosthetic leg, instead forcing him to crawl around on the floor ofhis cell. Indeed, on or about September 23, 2009 correctional officers at ADX forced Mr. Leggett to hop on one leg up the stairs in his unit. On or around September 30, 2009, officers forced him to hop on one leg to get from one cell to another on A Range in the ADX SHU. On or about August 28, 2010 officers forced Mr. Leggett to crawl up and down unit stairs to get to recreation, then forced him to sit on the ground in the recreation yard. On or about July 8, 2011, officers simply dragged him out of his cell because his wheelchair did not fit into the range.
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270. On or about November II, 2011, BOP staff witnessed Mr. Leggett consuming a plastic bag ofIbuprofen and Aspirin.
271. Despite repeated complaints filed by Mr. Leggett, for years the BOP failed to provide adequate safety bars to accommodate Mr. Leggett's disability while in the shower. As a result, Mr. Leggett was forced to sit on the floor ofthe shower while bathing, for fear of falling.
272. For years, the BOP refused to provide Mr. Leggett with a prosthetic leg until he paid for it at a cost of $4,250.77. He is indigent, but over several years his family was able to payoff a small portion ofthat cost. Until Mr. Leggett began communicating with his undersigned counsel the BOP continued to insist that he or his family would have to pay the entire cost ofthe prosthetic leg before one would be provided. Only in January 2012, after Mr. Leggett engaged his undersigned counsel, did the BOP finally change course and approve his transfer to MCFP for fitting of a new prosthetic. In the five months since, however, he has remained at ADX with no prosthetic leg and no word about when he will receive one. The BOP has also stated that once he receives his new prosthetic he is scheduled to be returned to ADX.
273. The pain, frustration and humiliation associated with being housed at ADX without a prosthetic, cane, or crutches, and forced to crawl around his cell and recreation enclosure like an animal has substantially aggravated Mr. Leggett's preexisting serious mental illness, which the BOP has likewise failed and refused to adequately treat.
274. As early as February 9, 2003, according to Mr. Leggett's medical records, a BOP physician acknowledged that Mr. Leggett suffers from a mental disorder. During his time at ADX, Mr. Leggett repeatedly has attempted suicide. On or about November 21,2002, BOP staff found Mr. Leggett non-responsive in his cell with bags of medicine near him. On August 14,
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2003, BOP medical staffnoted that Mr. Leggett threatened suicide. BOP medical staff indicated that BOP psychology staff had been notified.
275. Upon information and belief, Mr. Leggett has not been on any psychotropic medication since 2005. Before 2005, Mr. Leggett was treated with Thorazine, Haldol, and antidepressants.
276. Upon information and belief, Mr. Leggett filed a written request sometime before October 31, 2007, requesting psychotropic medication, but changed his mind on October 31, 2007 because the side effects of his medication caused him to be increasingly violent or alternatively caused him to sleep all day.
277. Mr. Leggett fears taking any medication as he believes that BOP staff will attempt to poison him with that medication. This fear has been exacerbated by BOP staff's continued mistreatment related to Mr. Leggett's physical disability.
E. David Shelby 278. David Shane Shelby is 47 years old. He was born in Benton, Kentucky, and
raised in Indiana. Inunediately before his incarceration he lived in Utah. Mr. Shelby suffers from a serious mental illness, Bipolar Disorder. A photograph of Mr. Shelby is attached as Exhibit 16.
279. Mr. Shelby has been housed at ADX since October 2000. He currently is serving a 24-year sentence for a 1996 conviction for making threats against the President, in addition to other felonies, and a consecutive 80-month sentence resulting from his 1997 attempted "suicide by officer."
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280. Mr. Shelby was raised in a family wracked by extreme poverty and mental illness. He was raised by his mother, who suffered from serious mental illness. When Mr. Shelby was 16 years old, he attempted suicide through an overdose of sleeping pills and whiskey.
281. In 1989, Mr. Shelby was sentenced to imprisonment at the Westville Correctional Center in Indiana. During his incarceration, Mr. Shelby attempted to burn another prisoner with a torch constructed from a mop stick. Mr. Shelby claimed that God had directed him to make the torch and burn the other prisoner.
282. As a result of the incident, a mental status examination was performed in September 1989, during which Mr. Shelby stated that ''he did not exactly hear voices; but more like -- heard feelings." The mental health examiner concluded that Mr. Shelby may have suffered an acute psychotic episode -- Schizophreniform Disorder in remission.
283. Mr. Shelby was released on parole in 1992. In December 1994, Mr. Shelby mailed threatening letters to the President of the United States as part of a plan by Mr. Shelby to secure the release of Charles Manson from prison. A few weeks later, in January 1995, he was arrested in Ogden, Utah, while attempting to mail several packages. One of the packages was addressed to the President of the United States and contained a modified light bulb that had been filled with smokeless gunpowder, a pocket knife, and a note reading, "I think you are doing a good job and 1 am sending you the pocket knife as a gift and a light bulb so that you won't strain your eyes." A second package, addressed to Charles Manson, contained a revolver with a fork affixed to its end to be used as a bayonet, a straight razor, and two explosive devices.
284. Mr. Shelby was charged with making threats against the President of the United States, illegal possession of firearms/destructive devices, and possession of a firearm. In a
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mental health evaluation conducted while at the Salt Lake County Jail, Mr. Shelby described how ''voices'' had instructed him to "Help Charlie [Manson]" and that "if Charlie was President, he could set me free."
285. In connection with his prosecution and court-ordered mental health evaluation, Mr. Shelby was sent to MCFP Springfield, where he underwent a psychiatric evaluation for a period of approximately three months. While at MCFP Springfield, Mr. Shelby attempted to commit suicide by ingesting a mouthful of Lysol and later by ingesting a mouthful ofBon Ami cleanser. He stated that he attempted suicide because he "began to be concerned he might actually be mentally ill" and also reportedly stated that he "did not want to die, but if God wants me to do it, it's like a commandment." According to the subsequent forensic report, Mr. Shelby was treated with an antipsychotic medication and was diagnosed with alcohol abuse and Schizotypal Personality Disorder that is "not regarded as a mental disease or defect by most authorities."
286. After Mr. Shelby returned to Salt Lake County Jail in August 1995, he voluntarily surrendered a knife constructed ofwire and wrapped with a leather shoelace and reported to jail personnel that he had impulses to murder another prisoner. He reportedly told a mental health worker that "they tell me I'm not crazy ... then the voice ofGod I hear, telling me to kill all the
baby rapers, must be real. God told me to kill Ryan because he is the lowest of them all."
287. In January 1996, Mr. Shelby was ordered to undergo a second mental health evaluation. The second evaluation concurred with the prior diagnosis of Schizotypal Personality Disorder, noting that much of Mr. Shelby'S psychotic illness "appears to be controlled with the medication."
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288. Mr. Shelby pled guilty to charges relating to his January 1995 arrest, and was sentenced to 288 months in the custody of the BOP. At his sentencing hearing, Mr. Shelby reportedly stated, "For quite some time in my life, I have been listening to voices in my head that I thought came from God. . .. The terrible crimes I have committed were because I believed they were commandments of God."
289. Mr. Shelby spent approximately one year of his sentence as an prisoner at USP Florence, Colorado. In June 1996, Mr. Shelby requested discontinuation ofhis medication, which at the time included the antipsychotic Navane and Cogentin, which helps reduce certain side effects ofNavane. After his medication was discontinued, Mr. Shelby was given no other psychiatric or mental health treatment.
290. In early 1997, Mr. Shelby was transferred to USP Atlanta. A few months after his arrival, Mr. Shelby took a staff member hostage in the institution's kitchen with a homemade knife, in an effort to provoke the prison staff to kill him -- a scenario known as "suicide by officer." Mr. Shelby was not killed in the incident, but rather was subdued and charged with assault ofa U.S. penitentiary employee with a dangerous weapon. In a statement about the incident, Mr. Shelby reported:
On July 23, 1997, while I was a prisoner at the United States Penitentiary in Atlanta, I held Ms. Ross, a prison staffperson, hostage with a knife. It was never my intention to harm anyone. This was a snicide attempt. I did this in hopes that the staff would shoot me. I have problems with depression and I was not receiving the proper medication at the time ofthis incident. 291. In May 1998, during his prosecution for assault of a U.S. penitentiary employee, the Court ordered a psychiatric evaluation ofMr. Shelby at USP Talladega in Alabama. Upon information and belief, at the time ofhis evaluation, Mr. Shelby continued to suffer from severe,
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chronic and untreated Bipolar Disorder. In the BOP evaluation, Mr. Shelby was diagnosed with the major Depressive Disorder, currently in remission; Alcohol Dependence in sustained, full remission in controlled environment; history of hallucinogen abuse; Personality Disorder NOS (schizotypal and antisocial traits); and history ofhead injury. Mr. Shelby was found competent to stand trial.
292. Mr. Shelby also later again was evaluated at MCFP Springfield. At MCFP Springfield, Mr. Shelby was diagnosed with Major Depression, in full remission; Alcohol Dependence; Personality Disorder NOS (schizotypal and antisocial traits); and post mild closed head injury. Thereafter, Mr. Shelby pled guilty to charges stemming from his attempted "suicide by officer" and was sentenced to 80 months ofconfinement in BOP custody, to run consecutive to his original federal sentence. As part of the sentence, the court recommended that Mr. Shelby participate in a mental health treatment program during his incarceration.
293. Mr. Shelby was transferred to ADX in 2000 and placed in the ADX general population. Since his arrival at ADX, Mr. Shelby has suffered from continuing symptoms of bipolar illness, as a result of which he is engaged in a pattern of bizarre, erratic, and harmful behavior.
294. In or about 2009, Mr. Shelby attempted suicide. Upon information and belief, at the time ofthis suicide attempt, Mr. Shelby was in the throes of psychosis caused by his as-yet untreated Bipolar Disorder. Mr. Shelby heard the Bob Dylan song "Knocking On Heaven's Door" playing on the radio and understood the song to be a message "calling him home." He responded by sitting down in a shower and severely cutting both arms, both legs, and his belly using glass from a broken television. Sometime later, ADX staffdiscovered him bleeding and in
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a semi-coherent state. His wounds were bandaged at the ADX medical facility and he was returned to a standard ADX cell.
295. After his suicide attempt, a BOP psychologist diagnosed Mr. Shelby as suffering from Bipolar Disorder. He was thereafter prescribed the anti-manic medication Depakote and the antidepressant Zoloft. Although the medications have helped Mr. Shelby cope with his serious mental illness, they have not resolved his periodic psychotic episodes and his hallucinations.
296. For example, later in 2009, Mr. Shelby heard a voice, which he took to be God's voice, commanding him to eat his finger. In response, Mr. Shelby amputated his left pinky finger approximately 112 inch from where the pinky joined his hand, and cut the finger into small pieces, which he added to a bowl of ramen soup and ate. ADX staff discovered him bleeding in his cell, and one ADX staff member asked him how his finger tasted.
297. In early 2010, Mr. Shelby was transferred to the ADX step-down program. He maintained clear conduct during stays in the Joker Unit and Kilo Unit, and was transferred to the fina1 stage ofthe step-down program, which is located at the USP Florence. In September 2011, while looking at a friend largely confined to a wheelchair, Mr. Shelby inexplicably saw what he believed to be "devil horns" on his friend's forehead. Mr. Shelby began choking his friend, and was subdued, restrained, and returned to ADX. After spending several months in disciplinary segregation in the SHU, Mr. Shelby returned to the General Population Unit, where he resides today.
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F. Herbert Isaac Perkins 298. Herbert Isaac Perkins, also known as "Pee Wee" or "Hokie," is 36 years old.
Before his incarceration he lived in Albuquerque, New Mexico. Mr. Perkins is serving a life sentence for anned robbery. Mr. Perkins suffers from serious mental illness, including severe Major Depression and Antisocial Personality Disorder. He also exhibits signs and symptoms of PTSD and may be suffering from the long term effects of serious closed head injuries. During his incarceration at ADX, Mr. Perkins has twice attempted to kill himself. A photograph of Mr. Perkins is attached as Exhibit 17.
299. Mr. Perkins grew up in Albuquerque, New Mexico, in a poor Latino neighborhood known locally as ''the War Zone." He was recruited into a gang at the age of nine. His mother abused drugs, and shared cocaine with him repeatedly from the time he was twelve years old. When he was fourteen or fifteen years old, his father committed suicide by shooting himself in the head while on the telephone with Mr. Perkins. As a teenager, Mr. Perkins was frequently in juvenile detention, and he did not finish high school. It was during this period that he first was treated for mental illness.
300. When properly treated, Mr. Perkins' Major Depression is controllable and relatively benign. While in federal custody before his 2008 arrival at ADX, Mr. Perkins received regular psychotropic medication. He was largely asymptomatic during this period.
301. Mr. Perkins' transfer to ADX triggered his mental illness. He was unable to receive any treatment for his mental illness. Although he had been medicated for depression and anxiety prior to the transfer, and asked to be continued on his medication when he arrived at ADX, he was told there was no prescription on file. He informed BOP officials at ADX that he
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was suffering from depression and asked to see a psychologist or psychiatrist. Upon information and belief, an ADX corrections officer also reported his depressed state and sought psychology intervention. BOP officials, however, refused to take action.
302. Upon information and belief, in August 2008, about a month after Mr. Perkins arrived at ADX, an ADX correctional officer noted his extreme depression and sought intervention by a psychologist, but was ignored. A day or two later, Mr. Perkins used the razor provided by ADX officials with other grooming supplies to slice open a blood vessel in his neck. He was taken to Parkview Hospital in Pueblo, Colorado, where medical personnel performed an emergency surgery to stop the bleeding and repair the blood vessel in his neck.
303. When the BOP returned Mr. Perkins from the hospital to ADX, he was weak and disoriented from blood loss and the stress of surgery. Upon his arrival at the prison, a BOP psychologist told him that he was being placed back in the same cell in which he had just attempted to kill himself. Mr. Perkins responded that he would not be there long, because he was going to kill himself. Rather than placing him on suicide watch or transferring him to a BOP medical center, ADX officials retorned Mr. Perkins to his normal cell, which was still awash with his own blood from the suicide attempt; the razor he had used to slash his throat was still sitting on his sink. While most of the inmates on the tier (a "range," in ADX parlance) objected loudly that Mr. Perkins should be sent to MCFP Springfield, ADX staff expressed amusement at Mr. Perkins' suicide attempt, brought him a pail ofplain water to clean up the blood in his cell, and later removed the razor. The following day, Mr. Perkins made good on what he told a BOP psychologist upon his return the previous day from the hospital. Specifically, he smashed the television in his cell, swallowed some of the broken glass, slashed his wrist, and attempted to
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tear open the earlier wound on his neck. Again, his bodily wounds were dressed, and again he was returned to his cell.
304. Belatedly, Mr. Perkins was treated with Zoloft; ADX personnel later withdrew these medications without explanation. After that, Mr. Perkins received no meaningful mental health care at ADX until late 2011 or early 2012, when BOP officials finally prescribed Prozac and Sinequan for Mr. Perkins' depression. At no time has Mr. Perkins been provided with regular psychiatric visits or other counseling for depression. Although his mood and physical health have improved somewhat since he finally began receiving medication, he remains clinically depressed and at risk of suicide.
305. Since he began communicating with his undersigned counsel, Mr. Perkins has been subjected to a pattern of harassment and retaliation by BOP officials. In late 2011, shortly after his first meeting with lawyers from Arnold & Porter, an ADX staff member made disparaging remarks to Mr. Perkins about his decision to become involved in the case. A few weeks later, an ADX staff member falsely accused Mr. Perkins of spitting on another prisoner in the recreation yard. The BOP's investigation of this allegations was cursory and inadequate, and Mr. Perkins was not afforded a hearing for this incident. Instead, he was transferred to the SHU and held there for over a month.
306. While in the SHU, Mr. Perkins was informed that his clothes, shoes, family photographs, and other belongings had been "lost." Only some of his legal paperwork was located; some more legal paperwork and his family photographs were later returned to him. An ADX staff member told Mr. Perkins that ifhe continued to be involved in the investigation of
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problems with the ADX mental health care system, he should expect to be returned to the SHU and have his property "lost" again.
307. Since his first meeting with Arnold & Porter, Mr. Perkins' mail has frequently been delayed, lost, or otherwise misdirected. He writes regularly to his nieces and sister, but many of the letters he has sent them over the last several months have never arrived, and others have been delayed for a week or more.
308. On several occasions, Mr. Perkins' outgoing legal mail has also gone missing. Three of these letters were sent by Certified Mail to his lawyers at Arnold & Porter months ago, but those letters have not been received.
309. ADX staff members have insinuated to Mr. Perkins that they have taken or will take revenge on him for his involvement in the instant litigation by, for example, contaminating his food trays, spreading rumors among other prisoners that he is a "rat," and otherwise compromising his well-being. As a result ofthese veiled threats and the BOP's prior disregard for his safety, Mr. Perkins fears for his life.
310. ADX staff members recently opened sealed and clearly marked legal mail that Mr. Perkins had addressed and planned to send to his undersigned counseL Staffconfiscated medical records relating to Mr. Perkins's 2008 suicide attempt, which Mr. Perkins had properly requested from ADX staff and received a few days earlier. The confiscated records were not contraband. Upon information and belief, they were confiscated merely because they contain information that will embarrass the BOP when it surfaces in this lawsuit.
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VllI. CLASS ACTION ALLEGATIONS 311. Plaintiffs Bacote, Cunningham, Narducci, Pinson, and Shaifer bring the causes of action identified below on behalf of themselves and all other persons similarly situated pursuant to Federal Rule of Civil Procedure 23. For those causes of action, Plaintiffs seek injunctive and declaratory relief applicable to members of the Class and Subclass, as defined below. 312. Plaintiffs bring this action on behalf of the following class and subclass: Prisoner Class
All persons who are now, or will be in the future, confined to the custody of the United States Bureau of Prisons at the United States Penitentiary Administrative Maximum in Florence, Colorado. Serious Mental Illness Subclass All persons who are now, or will be in the future, confined to the custody of the United States Bureau of Prisons in the United States Penitentiary Administrative Maximum in Florence, Colorado and have been diagnosed by the United States Bureau of Prisons or its representative personnel with one or more ofthe following forms of "Serious Mental Illness": (a) Prisoners determined by the BOP or its mental health vendor as having a diagnosis or a significant history ofany of the following disorders, as defined in the most current version ofthe Diagnostic and Statistical Manual of Mental Disorders ("DSM"):
(1) Schizophrenia (all sub-types) (2) Delusional Disorder (3) Schizophreniform Disorder
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(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 Disorder (all types) (9) Bipolar Disorder I and II; (b) Prisoners diagnosed by the BOP or its mental health vendor with PostTraumatic Stress Disorder or another Anxiety Disorder that results in a significant functional impairment; (c) Prisoners diagnosed by the BOP or its medical or mental health vendor with a development disability, a dementia, or other cognitive disorders that results 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; or (d) Prisoners diagnosed by the BOP or its mental health vendor with a severe personality disorder that is manifested by episodes ofpsychosis 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. A. Prisoner Class 313. Class action status for the Prisoner Class in this litigation is proper because: (a) The Prisoner Class is so numerous that joinder of all members is impractical. Upon information and belief, the total number of class members is more than four
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hundred men currently confined at ADX and an unknowable number of current and future BOP prisoners who are designated for confinement at ADX;
(b) There are questions oflaw and fact common to the class, including without limitation: whether class members are subject to harm as a result of Defendants' practices that fail to provide initial and periodic mental health evaluations at ADX; whether Defendants violate their own written policies and procedures by refusing to provide initial and periodic mental health evaluations to class members at ADX; whether Defendants' failure to maintain an adequate prograro for initial and periodic mental health evaluations at ADX leads to a failure to properly diagnose prisoners who suffer from serious mental illness, and whether Defendants' failure to maintain an adequate program for initial and periodic mental health evaluations at ADX leads to a failure to provide constitutionally adequate mental health treatment to seriously mentally ill prisoners;
(c) Plaintiffs' claims are typical of the claims of the class, in that each Plaintiff is incarcerated at ADX, did not receive a prompt mental health evaluation upon transfer to ADX, has not received continued periodic mental health evaluations during the time they have been incarcerated at ADX, and currently has claims that, like the claims of the class, arise from the same policies, practices, and procedures implemented by Defendants at ADX;
(d) Plaintiffs and all members ofthe class have been similarly affected by Defendants' common course ofconduct;
(e) Plaintiffs will fairly and adequately protect the interests of the class as there is no conflict between Named Plaintiffs and the other class members; and
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(f) Plaintiffs can adequately represent the interests of the class members and have retained counsel experienced in class action litigation.
314. Defendants have acted and/or refused to act on grounds generally applicable to the class, thereby making final declaratory and injunctive relief appropriate with respect to the class as a whole under Federal Rule of Civil Procedure 23(b)(2).
B. Serious Mental Illness Subclass 315. Class action status for the Serious Mental Illness Subclass in this litigation is proper because:
(a) The Serious Mental mness Subclass is so numerous that joinder of all members is impractical. Due to the nature of the facility at issue and the mental health afilictions known to Plaintiffs and their counsel, upon information and belief, the total number of subclass members is dozens, ifnot more than one hundred men;
(b) There are questions oflaw and fact common to the subclass, including without limitation: whether Defendants' failure to maintain an adequate program for appropriate mental health evaluations at ADX leads to a failure to provide constitutionally adequate mental health treatment to seriously mentally ill prisoners; whether Defendants violate their own written policies and procedures by a practice ofplacing seriously mentally ill prisoners at ADX, and within the Control Unit and SHU at ADX; whether Defendants violate their own written policies and procedures by failing to adequately instruct unit officers and detail supervisors in recognizing and reporting symptoms of mental illness; whether Defendants violate their own written policies by a practice oftaking inappropriate disciplinary actions against seriously mentally ill prisoners; whether Defendants violate their own written policies by failing to
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maintain an adequate program to diagnose seriously mentally ill prisoners at ADX; whether subclass members are subject to harm as a result of Defendants' practices that fail to provide adequate treatment for serious mental illness; and whether Defendants' repeated violations of numerous mental health policies has placed members ofthe subclass at risk for increased psychological and/or physical harm;
(c) Plaintiffs' claims are typical of the claims of the subclass, in that each Named Plaintiff suffers from at least one serious mental illness for which he has not received appropriate treatment, and Plaintiffs' claims and the claims ofthe subclass arise from the same policies, practices, and procedures implemented by Defendants at ADX;
(d) Plaintiffs and all members ofthe subclass have been similarly affected by Defendants' common course ofconduct;
(e) Plaintiffs will fairly and adequately protect the interests of the subclass as there is no conflict between Plaintiffs and the other subclass members; and
(f) Plaintiffs can adequately represent the interests of the subclass members and have retained counsel experienced in class action litigation.
316. Defendants have acted and/or refused to act on grounds generally applicable to the subclass, thereby making final declaratory and injunctive relief appropriate with respect to the class as a whole under Federal Rule of Civil Procedure 23(b)(2).
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IX. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Violation of the Eight Amendment to the United States Constitution - Failure to Diagnose (Asserted by PlaintitTPrisoner Class Against All Defendants) 317. Plaintiffs incorporate by reference the foregoing paragraphs ofthis Complaint as though fully set forth herein. 318. As described herein, by their policies and practices, Defendants subject Plaintiffs and class members to a substantial risk of serious harm and injury by failing to establish and maintain a program and/or practices to adequately screen and diagnose prisoners at ADX for serious mental illnesses, both during their initial assignment to ADX and periodically thereafter. Defendants have been deliberately indifferent to this substantial risk of serious harm to Plaintiffs and class members. 319. Defendants have been and are aware of all the deprivations complained of herein, and have condoned or been deliberately indifferent to such conduct, and to Plaintiffs' and class members' serious medical needs. 320. Defendants' policies and practices are the proximate cause ofthe Plaintiffs' and class members' deprivation of rights under the Eighth Amendment. SECOND CLAIM FOR RELIEF Violation of the Eighth Amendment of the United States Constitution - Failure to Treat (Asserted by Plaintiff Serious Mental Illness Subclass Against All Defendants) 321. Plaintiffs incorporate by reference the foregoing paragraphs ofthis Complaint as though fully set forth herein. 322. As described herein, by their policies and practices, Defendants subject Plaintiffs and subclass members to a substantial risk of serious harm and injury by failing to establish and
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maintain a program to provide adequate mental health treatment to Plaintiffs and subclass members.
323. Defendants have been and are aware of all the deprivations complained of herein, and have condoned or been deliberately indifferent to such conduct, and continue to exhibit deliberate indifference to Plaintiffs' and subclass members' serious medical needs.
324. Defendants' policies and practices are the proximate cause ofthe Plaintiffs' and subclass members' ongoing deprivation of rights under the Eighth Amendment.
X. PRAYER FOR RELIEF Plaintiffs therefore respectfully request that this Court grant the following relief: 1. Certify the proposed class and subclass; 2. Enter an injunction directing that Defendants implement a program of mental health screening and diagnosis for the benefit of all Prisoner Class members. This program shall include the staffing of mental health professionals at ADX to provide the screening and diagnosis services required hereby. The program shall provide, at a minimum, the following:
(a) a mental health examination prior to transfer to ADX or immediately upon arrival at ADX, to determine the presence or absence of a Serious Mental lllness, as defined in this Complaint;
(b) an annual mental health examination, and regular mental health rounds by a mental health professional, to facilitate early detection and treatment ofa Serious Mental Illness as defined in this Complaint;
(c) a program of training ADX staff members on detection of symptoms of Serious Mental Illness; and
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(d) a procedure for plaintiff class members who dispute the diagnosis by the BOP or its representative personnel for review of that diagnosis by a mental health provider independent of the BOP.
3. Enter an injunction directing that Defendants implement a program of treatment for each Serious Mental Illness for the benefit of members of the Serious Mental Illness Subclass. That program shall contain a level of care appropriate for a confined individual for each Serious Mental Illness, and shall include, at a minimum, the following:
(a) staffing of mental health professionals at ADX to administer the program of mental health treatment;
(b) bi-weekly access to out-of-cell private psychotherapy; (c) monthly access to confidential psychiatry sessions; (d) access to at least 5-10 hours per week of out-of-cell therapeutic activity; (e) access to at least 10 hours per week of out-of-cell recreational activity that allows for socialization with other prisoners; (f) regular and scheduled receipt of all prescribed medication; (g) not housing prisoners who are prescribed medication in Control Units, or in any unit in which medications are not provided; and (h) treatment planning team meetings three times annually. 4. Enter an injunction directing that Defendants implement a program of suicide and self-harm prevention, including at a minimum, regular and reliable access for Serious Mental Illness Subclass members to suicide prevention and mental health crisis intervention services with trained professionals.
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S. Enter an injunction directing that Defendants implement a program of placement of Serious Mental Illness Subclass members at ADX including, at a minimum, making available to all Serious Mental Illness Subclass members the option of housing in a unit dedicated to prisoners with serious mental illnesses that is segregated from other prisoners, staffed by medical and correctional officers specially trained to deal with mental health issues, and operated so that prisoners with serious mental illnesses may receive consistent and accurate doses ofprescribed psychotropic medication together with other psychiatric and psychological care;
6. Enter an injunction directing that Defendants adopt and comply with written policies on the safe and humane treatment of Serious Mental Illness Subclass members who become disruptive.
7. Declare that the diagnosis and treatment of seriously mentally ill prisoners at ADX violates the standards set by the federal government and the BOP in their own regulations, as well as the Eighth Amendment and to the United States Constitution;
8. Grant an award of attorneys' fees; and 9. Grant such other relief as this Court deems just and proper.
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Dated: June 18,2012

Respectfully submitted,
ARNOLD & PORTER LLP
By /s/ Edwin P. Aro EdwinP.Aro James E. Scarboro 370 Seventeenth Street Suite 4400 Denver, CO 80202-1370 Telephone: +1 303.863.1000 ed.aro@aporter.com james.scarboro@aporter.com
Maurice A. Leiter 777 S. Figueroa Street 44th Floor Los Angeles, CA 90017 Telephone: +1 213.243.4000 maury.leiter@aporter.com
Robert P. Taylor Jerome B. Falk, Jr. Three Embarcadero Center 7th Floor San Francisco, CA 94111 Telephone: +1415.471.3100 robert.taylor@aporter.com jerome.faik@aporter.com
Veronica E. Rendon Keri L. Arnold 399 Park Avenue New York, NY 10022 Telephone: +1 212.715.1000 veronica.rendon@aporter.com keri.arnold@aporter.com
Nancy L. Perkins 555 Twelfth Street, NW Washington, D.C. 20004 Telephone: +1 202.942.5000 nancy.perkins@aporter.com
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WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS
By Is! Deborah Golden Deborah Golden Philip Fornaci 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036 Telephone: +1202.319.1000 deborah--,!olden@washlaw.org philipjornaci@washlaw.org
Attorneys for Plaintiffs Plaintiffs' Address: United States Penitentiary Administrative Maximum-ADX P. O. Box 8500 Florence, CO 81226
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Index of Photographic Exhibits to Plaintiffs' Complaint,
Bacote, et al. v. United States Bureau of Prisons, et. al.
1. ADX exterior 2. ADX general population cell 3. ADX outdoor recreation cages (general populations units) 4. ADX individual outdoor recreation enclosure (Control Unit or SHU) 5. ADX individual indoor recreation enclosure 6. ADX Kilo and Joker Units 7. Michael Bacote 8. Harold Cunningham 9. Ernest Shaifer 10. Jeremy Pinson II. John "Keli" Narducci 12. John "Jack" Powers 13. Marcellus Washington 14. William Sablan 15. Jaison Leggett 16. David Shelby 17. Herbert Perkins

Case 1:12-cv-01570 Document 1-1 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 1

Case 1:12-cv-01570 Document 1-1 Filed 06/18112 USDC Colorado Page 2 of 2
Exhibit 1
ADX Exterior

Case 1:12-cv-01570 Document 1-2 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 2

Case 1:12-cv-01570 Document 1-2 Filed 06/18/12 USDC Colorado Page 2 of 2
Exhibit 2
ADX General Population Cell

Case 1:12-cv-01570 Document 1-3 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 3

Case 1:12-cv-01570 Document 1-3 Filed 06/18/12 USDC Colorado Page 2 of 2
Exhibit 3
ADX Outdoor Recreation Cages (General Population)

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Exhibit 4

Case 1:12-cv-01570 Document 1-4 Filed 06/18/12 USDC Colorado Page 2 of 2
Exhibit 4
ADX Outdoor Individual Recreation Enclosure (Control Unit or SHU)

Case 1:12-cv-01570 Document 1-5 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 5

Case 1:12-cv-01570 Document 1-5 Filed 06/18/12 USDC Colorado Page 2 of 2
Exhibit 5
ADX Indoor Individual Recreation Enclosure

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Exhibit 6

Case 1:12-cv-01S70 Document 1-6 Filed 06/18/12 USDC Colorado Page 2 of 3
Exhibit 6
ADX Kilo Unit Interior (Historically, same configuration as Joker Unit)

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Exhibit 6 (Continued)
ADX Joker Unit

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Exhibit 7

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Exhibit 7
Michael Bacote

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Exhibit 8

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Exhibit 8
Harold Cunningham

Case 1:12-cv-01570 Document 1-9 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 9

Case 1:12-cv-01570 Document 1-9 Filed 06/18/12 USDC Colorado Page 2 of 2
Exhibit 9
Ernest Shaifer

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Exhibit 10

case 1:12-cv-01S70 Document 1-10 Filed 06118112 USDC Colorado Page 2 of 2
Exhibit 10
Jeremy Pinson

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Exhibit 11

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Exhibit 11
Keli Narducci

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Exhibit 12

Case 1:12-cv-01S70 Document 1-12 Filed 06/18/12 USDC Colorado Page 2 of 2
Exhibit 12
Jack Powers

Case 1:12-cv-01570 Document 1-13 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 13

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Exhibit 13

i

I••:

\

/

Marcellus Washington

Case 1:12-cv-01570 Document 1-14 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 14

Case 1:12-cv-01570 Document 1-14 Filed 06/18112 USDC Colorado Page 2 of 2
Exhibit 14
William Sablan, with his daughter April

Case 1:12-cv-01570 Document 1-15 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 15

Case 1:12-cv-01570 Document 1-15 Filed 06/18/12 USDC Colorado Page 2 of 2
Exhibit 15
Jaison Leggett

Case 1:12-cv-01570 Document 1-16 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 16

eu. l:12-cv-Ol570 Docurn.nt 1-UI Fhd 0lIl18112 usee Colorado P 9 2 of 2
Exhibit 16
David Shelby

Case 1:12-cv-01570 Document 1-17 Filed 06/18/12 USDC Colorado Page 1 of 2
Exhibit 17

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Exhibit 17
Herbert Perkins, Jr.

 
 Case 1:12-cv-01570-RPM-MEH Document 274 Filed 06/15/15 USDC Colorado Page 1 of 201
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01570-RPM HAROLD CUNNINGHAM, PERCY BARRON, ALPHONSO BLAKE, JABBAR CURRENCE, CARLTON DUNBAR, SCOTT FOUNTAIN, SEAN GILLESPIE, CHARLES HIPPS RONNIE HOUSTON, JOHN LAMB, HERBERT PERKINS, JOHN J. POWERS, ARNELL SHELTON, and MARCELLUS WASHINGTON, each individually and on behalf of all others similarly situated, and CENTER FOR LEGAL ADVOCACY, D.B.A. DISABILITY LAW COLORADO
Plaintiffs, vs. FEDERAL BUREAU OF PRISONS, Defendant.
SECOND AMENDED COMPLAINT
Plaintiffs Harold Cunningham, Percy Barron, Alphonso Blake, Jabbar Currence, Carlton Dunbar, Scott Fountain, Sean Gillespie, Charles Hipps, Ronnie Houston, John Lamb, Herbert

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Perkins, John J. Powers, Arnell Shelton, and Marcellus Washington (collectively, “Class Plaintiffs”), each individually and on behalf of all others similarly situated, and Plaintiff Center for Legal Advocacy (“CLA”), respectfully complain as follows against Defendant the Federal Bureau of Prisons (“BOP”). Where appropriate, Class Plaintiffs and CLA are collectively referred to herein as “Plaintiffs.”
TABLE OF CONTENTS Page
I. NATURE OF THE ACTION ............................................................................................. 5 II. OBJECTIVES OF THIS LITIGATION ........................................................................... 12 III. JURISDICTION ............................................................................................................... 21 IV. VENUE ............................................................................................................................. 21 V. PARTIES .......................................................................................................................... 21 VI. GENERAL ALLEGATIONS ........................................................................................... 22
A. Background and Operation of ADX ..................................................................... 22 B. Extended Confinement in Isolation Can and Often Does Have a
Devastating Effect on Prisoners’ Mental Health .................................................. 31 C. BOP Has a Documented History of Violating Its Own Written Policies
Concerning Evaluating, Housing, and Treating Prisoners With Mental Illness at ADX....................................................................................................... 33 D. ADX Continues to House Prisoners With Serious Mental Illness Who Are Dangerous to Themselves and Others................................................................... 37 E. Mental Health Care Treatment at ADX Was and Remains Woefully and Constitutionally Inadequate .................................................................................. 41 F. Defendant Has Displayed Sustained Deliberate Indifference to the Plight and Needs of Prisoners With Mental Illness at ADX ........................................... 49 (1) The Illnesses of Plaintiffs and Their Peers are Obvious ........................... 49
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(2) A Series of Suicides by Prisoners with Mental Illness Have Demonstrated in Tragic and Permanent Terms the Past and Continued Deficiencies in the ADX Mental Health System ...................................... 53
(3) At least 14 Separate Pro Se Lawsuits Filed by ADX Prisoners in the Nine Years Prior to this Lawsuit Put Defendant on Notice of the Catastrophic Deficiencies in the ADX Mental Health Care System ........ 60
G. Defendant’s Actions to Date Relating to Claims Raised in This Lawsuit Are Insufficient to Fully Address Plaintiffs’ Claims of Constitutionally Inadequate Mental Health Care ............................................................................ 63 (1) Defendant Has Instituted Three New Policies Relating to Some of Plaintiffs’ Claims ...................................................................................... 64 (2) Defendant’s New Policies Are Insufficient On Their Own to Provide Constitutionally Adequate Mental Health Care to Plaintiffs .................... 65 (3) Defendant Has a Documented History of Ignoring and Violating Its Own Policies Relating to Treatment of Prisoners With Mental Illness and Has Begun to Repeat This Pattern with Its New Policies .................. 66 (4) Defendant’s Decision to Exclude Prisoners With Serious Mental Illness from ADX Does Not Absolve Defendant of the Responsibility to Provide Those Prisoners With Constitutionally Adequate Mental Health Care ............................................................................................... 68
VII. ALLEGATIONS RELATING SPECIFICALLY TO PLAINTIFFS ............................... 69 A. Harold Cunningham.............................................................................................. 69 B. Percy Barron ......................................................................................................... 75 C. Alphonso Blake..................................................................................................... 81 D. Jabbar Currence .................................................................................................... 86 E. Carlton Dunbar...................................................................................................... 95 F. Scott Fountain ..................................................................................................... 100 G. Sean Gillespie ..................................................................................................... 106 H. Charles Hipps...................................................................................................... 111 I. Ronnie Houston .................................................................................................. 118
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J. John Lamb........................................................................................................... 122 K. Herbert Isaac Perkins .......................................................................................... 128 L. John Jay Powers .................................................................................................. 134 M. Arnell Shelton ..................................................................................................... 142 N. Marcellus Washington ........................................................................................ 148 VIII. ALLEGATIONS RELATING SPECIFICALLY TO THE INTERESTED INDIVIDUAL................................................................................................................. 152 IX. ALLEGATIONS RELATING TO THE CENTER FOR LEGAL ADVOCACY.......... 161 X. ALLEGATIONS RELATING TO SOME OF CLA’s CONSTITUENTS..................... 167 A. James Cole .......................................................................................................... 167 B. Jonathan Francisco.............................................................................................. 168 C. William Harris .................................................................................................... 170 D. David Hearne ...................................................................................................... 172 E. William Concepcion Sablan ............................................................................... 179 F. James Van Noy ................................................................................................... 185 XI. CLASS ACTION ALLEGATIONS ............................................................................... 187 A. Prisoner Class...................................................................................................... 190 B. Mental Illness Subclass....................................................................................... 191 XII. CLAIMS FOR RELIEF .................................................................................................. 193 XIII. PRAYER FOR RELIEF ................................................................................................. 194
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I. NATURE OF THE ACTION 1. This class action lawsuit concerns the treatment of prisoners at the United States Penitentiary Administrative Maximum facility in Florence, Colorado (“ADX”) who have mental illness. It seeks declaratory and injunctive relief requiring the BOP to comply with its policies regarding the treatment of prisoners with mental illness, and to provide mental health diagnosis and treatment consistent with the requirements of the Eighth Amendment for people who have been committed to its custody. 2. ADX is the most secure federal penitentiary in the United States. It currently houses approximately 425 men. Staff at ADX often refer to it as the “Alcatraz of the Rockies.” ADX was built to house prisoners whom the BOP believes present the greatest threats to the correctional staff or to other prisoners. Prisoners spend at least 20 and as many as 24 hours per day locked alone in isolated cells, and are subject to a harsh and unforgiving disciplinary regimen. Such isolation and brutal discipline are inappropriate for prisoners who have mental illness. 3. Even before the filing of this lawsuit, the BOP’s own policies stated that men with serious mental illnesses should not be assigned to ADX. Upon information and belief, those policies reflect the BOP’s recognition that extended confinement in isolation and the institution’s disciplinary practices pose substantial risks to prisoners’ mental health, and can be particularly harmful for men who had mental health problems before being confined in such conditions. The severe and isolating conditions at ADX also pose a substantial risk to the mental health of prisoners housed at ADX who have a mental illness that has not yet developed into what is classified under the law as a serious mental illness.
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4. Despite its policies, before the filing of this lawsuit the BOP housed dozens of men with mental illness, often serious mental illness, at ADX. That fact resulted from the BOP’s routine disregard of its own prior mental health evaluations of prisoners it decided to send to ADX, the BOP’s manipulation of evaluations to justify placement or continued placement of prisoners with mental illness at ADX, and the BOP’s constitutionally inadequate mental health screening evaluations before prisoners are transferred to ADX. The BOP also failed to adequately monitor ADX prisoners for mental health problems that arose after they arrived at the facility, and failed to provide prisoners with mental illness at ADX with adequate mental health care. The conditions of confinement at ADX and the BOP’s failure to properly diagnose and treat mental illness combined to worsen the conditions of prisoners who had mental illness when they arrived at ADX, and caused some other prisoners to develop mental illness.
5. The BOP’s deliberate indifference to the proper diagnosis and treatment of ADX prisoners with mental illness resulted in horrible consequences. Many prisoners at ADX interminably wailed, screamed, and banged on the walls of their cells. Some mutilated their bodies with razors, shards of glass, sharpened chicken bones, writing utensils, and whatever other objects they could obtain. A number swallowed razor blades, nail clippers, parts of radios and televisions, broken glass, and other dangerous objects. Others carried on delusional conversations with voices they heard in their heads, oblivious to reality and to the danger that such behavior might pose to themselves and anyone who interacts with them. Still others spread feces and other human waste and body fluids throughout their cells, threw it at the correctional staff, and otherwise created health hazards at ADX. Suicide attempts were common; many have been successful.
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6. In short, the BOP turned a blind eye to the needs of prisoners with mentally illness at ADX, and to deplorable conditions of confinement that are inhumane to these prisoners. No civilized society treats its citizens who have mental illness with such deliberate indifference to their plight.
7. This lawsuit was originally filed on June 18, 2012. See Dkt 1. An Amended Complaint was filed on May 24, 2013. See Dkt 67. Since Plaintiffs filed their original complaint, the BOP has taken some steps to address the rampant constitutional violations in mental health care at ADX. Those steps have included:
(a) Screening prisoners at ADX and identifying dozens of prisoners with a serious mental illness or a mental illness requiring treatment;
(b) Enacting a revised policy for the care and treatment of prisoners with mental illness, which like the BOP’s prior policies explicitly excludes from ADX prisoners diagnosed with a serious mental illness;
(c) Enacting a policy of treatment “care levels,” providing for treatment of prisoners diagnosed with a mental illness or serious mental illness;
(d) Creating new secure facilities for treatment of prisoners with serious mental illness, and transferring some ADX prisoners with serious mental illness to those facilities;
(e) Enacting a new suicide prevention policy at ADX; and (f) Revising certain policies at ADX that fundamentally interfered with delivery of mental health treatment, such as a policy previously interpreted by the BOP to
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prohibit the administration of psychotropic medications to prisoners housed in the ADX Control Unit.
8. These enhanced policies and actions have been steps in the right direction, and they confirm that the BOP can create policies and programs to provide classwide relief to ADX prisoners having mental illness, including serious mental illness. But they have failed to resolve BOP’s constitutional violations. For example:
(a) The BOP has failed to follow in all cases its recently enacted mental health-related policies. In particular, but not by way of limitation, having enacted a revised policy that (like prior policies) excludes prisoners with serious mental illness from ADX, and having diagnosed certain ADX prisoners with serious mental illness that requires their transfer to a suitable residential mental health facility, the BOP has failed to complete mandatory transfers in a timely manner, manipulated diagnoses to avoid the exclusionary consequences of an initial, correct diagnosis, and otherwise undermined the implementation of and compliance with the very policies that the BOP enacted in response to the serious constitutional violations that originally precipitated the filing of this lawsuit;
(b) Those prisoners diagnosed by the BOP with serious mental illness who remain housed at ADX still do not receive constitutionally adequate mental health care;
(c) ADX prisoners with serious mental illness who were transferred to the newly-created mental health treatment units, created specifically to treat them, still do not receive constitutionally adequate mental health care at those facilities, because of the BOP’s continuing deliberate indifference to their treatment needs; and
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(d) The BOP has failed to adequately address the mental health needs of those prisoners at ADX who have been diagnosed by the BOP with a mental illness requiring treatment (but not a serious mental illness requiring exclusion from ADX), and has not enacted and implemented programs to ensure that these prisoners receive constitutionally-adequate treatment, and to reduce the risks that their mental illness will further deteriorate into a more serious mental illness.
9. Defendant BOP is responsible for operating ADX and for ensuring that Plaintiffs’ constitutional and other legal rights are respected. Defendant has failed to meet those obligations to Class Plaintiffs, the Interested Individual, and the members of the class and subclass. To the extent the BOP has enacted new policies, and temporarily improved in some areas, it still has not resolved its constitutional violations. Nor may BOP evade its responsibility to provide adequate mental health care to ADX prisoners by transferring them out of ADX but then failing to provide such adequate mental health care at another institution. Moreover, the BOP’s history of ignoring its own policies concerning mental health care prior to the filing of this lawsuit highlights the risk that the BOP can regress as easily, if not more easily, than this case has forced it to progress. Even those constitutional violations that the BOP can argue have been ameliorated are not moot, both under the doctrine of voluntary cessation and because they are capable of repetition and run the risk of evading judicial review in the absence of the relief sought in this case.
10. The Eighth Amendment to the United States Constitution guarantees to every person imprisoned at ADX adequate medical care, including care for mental illness. That guarantee includes access to an adequate process for assessing the need for mental health care, and access to necessary care itself. Notwithstanding the changes made since this action was
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initiated, the BOP falls woefully short of providing this constitutionally-guaranteed level of care. It still fails to provide constitutionally-adequate mental health treatment to individuals it has diagnosed with a serious mental illness. It denies that individuals it has diagnosed with other mental illnesses, and who under BOP’s own policies must receive treatment, are entitled to treatment under the Constitution. If the BOP chooses to assign or house at ADX prisoners with mental illness, it must provide constitutionally adequate mental health screening and treatment, taking into account the isolated conditions of confinement and harsh disciplinary regime of ADX.
11. Class Plaintiffs are all men with mental illness incarcerated at ADX either when the case was filed or at present and who are all currently in the custody of the BOP. This Second Amended Complaint also names as an “Interested Individual” one other prisoner with serious mental illness who was housed at ADX at the time the lawsuit was filed and remains incarcerated by the BOP. Many of these men also have severe functional impairment of their ability to attend to their own personal needs or even to exist in a world with other people. Several of them are cognitively disabled. Plaintiff CLA operates Colorado’s “Protection and Advocacy System,” working to ensure the safety, well-being, and dignity of people with disabilities in, among other places, jail or prison. In this case CLA is advocating on behalf of all ADX prisoners with mental illness, including those who cannot, because of mental illness and/or mental disability, advocate for themselves.
12. The brutality and deliberate indifference to human rights that the BOP exhibits toward Plaintiffs and the Interested Individual also exists with respect to many of the other
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prisoners held at ADX, including the members of the class and subclass that Plaintiffs represent in this case.
13. Defendant’s constitutional violations have repercussions beyond the harm caused to Class Plaintiffs, the Interested Individual, the class, and the subclass. Many ADX prisoners who have untreated or poorly treated mental illness pose a constant and sometimes deadly threat to BOP personnel. Although ADX programs are designed to isolate prisoners from other prisoners, they cannot isolate prisoners from BOP staff charged with providing basic services on a daily basis and conducting security checks required in all correctional settings. The extreme isolation and the lack of adequate mental health treatment only serve to increase the risk of assaults to the staff assigned these duties.
14. Although some ADX prisoners will never be released from prison, many of them, including several of the Class Plaintiffs, will be released into the community when their sentences expire in the next few years. After years of confinement in isolation without proper treatment for mental illness, these men will have a difficult time reentering society safely and successfully. In one regrettable example of the predictable consequences of the BOP’s deliberate indifference to the needs to prisoners with serious mental illness, a former Plaintiff released from custody in July 2014 currently is in state custody in Florida, charged with a violent assault.
15. This lawsuit seeks to remedy the deficient mental health system at ADX by means of a permanent injunction, consistent with the requirements of the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, requiring the BOP to honor its own policies and the constitutional rights of ADX prisoners by providing mental health diagnostic and treatment services.
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II. OBJECTIVES OF THIS LITIGATION 16. As detailed below, when this lawsuit was filed, the ADX delivered almost no mental health diagnostic or treatment services to prisoners held there. In response to the lawsuit, the BOP has taken some preliminary steps to improve the mental health services available to ADX prisoners, as discussed below. Although Plaintiffs support these steps and BOP’s preliminary efforts to improve mental health treatment at ADX since the initiation of this lawsuit, the handful of new policies recently enacted by BOP are insufficient on their own to remedy the constitutionally inadequate mental health treatment of class members and the BOP’s deliberate indifference to these violations. Many of the constitutional violations in this case arise from the BOP’s failure to comply with regulations and protocols that already were in place before the lawsuit was filed, so the BOP’s implementation of new regulations and protocols cannot, by itself, be trusted to cure the pervasive constitutional violations detailed below. In addition, although the preliminary changes are a step in the right direction, even after they were implemented, the mental health services available to ADX prisoners remain constitutionally deficient, and there remain troubling instances suggesting efforts to evade the newlyimplemented policies within months after those policies went into effect. In addition, there is no constitutionally adequate mental health system in place for ADX prisoners. Rather, even the “improved” version of mental health care at ADX is a still a small Band-Aid on a gaping wound. 17. To satisfy the requirements of the Eighth Amendment, an institutional mental health system in a facility such as ADX must provide care consistent with contemporary community standards and evolving standards of decency. Whether in the community or in a prison, any comprehensive system of mental health services provides care in different treatment
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settings, or levels of care: outpatient treatment services, crisis intervention services, a residential program, and a psychiatric inpatient program, all as follows:
(a) Crisis Level of Care: Suicide attempts and other acts of self-harm are far more common in segregation facilities such as ADX than in any other type of facility operated by the BOP. Given the risk of suicide, self-harm, and other mental health crises resulting from the extreme isolation imposed by ADX, the Constitution requires the timely provision of mental health services to ADX prisoners who are suicidal or otherwise are experiencing an acute mental health crisis. Such services may need to be provided in an infirmary setting for short-term stabilization and/or diagnostic treatment purposes, and generally involve a length of stay less than ten days. As detailed below, crisis care at ADX has been and remains woefully inadequate. For example, almost a year after this lawsuit was filed, a prisoner with chronic and severe mental illness ADX prisoner named Percy Barron -- who at the time was being medicated by the BOP for severe depression and who is now named as a plaintiff in this Second Amended Complaint -sought emergency psychology services precisely as mandated by BOP policy, and precisely as encouraged by a July 20, 2012, memorandum signed by BOP Director Charles Samuels and circulated to all ADX prisoners a few weeks after this lawsuit was filed. Entitled “Suicide Prevention,” Director Samuels’ memorandum explains his understanding that “[a]t times, you may feel hopeless about your future and your thoughts may turn to suicide.” He goes on to tell prisoners that “Bureau staff are a key resource available to you,” and promises that “[a]nytime you want to speak with a psychologist, let staff know and they will contact Psychology Services to make the necessary arrangements.” “Help,” he continued, “is available.” Despite these assurances from Director Samuels, after requesting emergency psychology services Mr. Barron
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was ignored for hours, attempted suicide, was belatedly discovered in the act, and later was issued a disciplinary incident report for attempting to kill himself after his pleas for assistance were ignored. Upon information and belief, BOP conducted no investigation into the staff failures and policy violations that resulted in Mr. Barron’s suicide attempt, and has taken no actions in response to those failures aside from dismissing the incident report at the request of Plaintiffs’ Counsel.
(b) Inpatient Level of Care: The Constitution requires that ADX prisoners having mental illness so severe that it requires inpatient mental health treatment be timely provided such treatment, either at the ADX or at another suitable facility. Given the attributes of ADX, including its physical design and operational priorities, it may well be impossible for the BOP to provide such treatment within the confines of ADX to prisoners who require it. Indeed, the BOP typically provides inpatient care at a BOP medical facility. In any case, the Constitution requires that BOP either provide such treatment at ADX when medically necessary or ensure that ADX prisoners requiring inpatient mental health care are timely identified, transferred to a suitable facility and given such care. The BOP’s May 1, 2014 Program Statement entitled “Treatment and Care of Inmates with Mental Illness” (“Program Statement”) acknowledges the need for inpatient care, which it designates as treatment under level CARE4-MH, and generally requires exclusion of prisoners designated as CARE4-MH from ADX. However, as detailed below, some such prisoners remain at ADX despite their obvious need for inpatient mental health care, as evidenced by horrendous self-mutilation, chronic wailing, wallowing in one’s own body waste, and/or a complete loss of communication, orientation as to time and space, and the ability to maintain even basic levels of hygiene and self-control.
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(c) Residential Level of Care: The Constitution requires that ADX prisoners having mental illness so severe that it requires treatment in a residential mental health treatment unit be provided such treatment, either at the ADX or at another suitable facility. Prisoners appropriate for these units generally have had, and may always have, significant difficulty functioning in a general population environment due to symptoms related to their serious mental disorders. Correctional residential mental health programs are designed to provide supportive housing and a psychosocial rehabilitative treatment approach. Successful implementation of a residential treatment level of care will reduce the need for inpatient psychiatric beds and the number of admissions to a crisis bed level of care. The May 2014 Program Statement addresses the need for residential care of prisoners meeting the BOP’s level CARE3-MH criteria and outlines policies for providing it. Nonetheless, subclass members still do not receive the residential level mental health care mandated by the Program Statement or the Constitution.
(d) Outpatient Level of Care: The Constitution requires that ADX prisoners having mental illness that requires outpatient treatment be provided such treatment, either at the ADX or at another suitable facility. Objective community-based standards establish that patients requiring outpatient mental health care have access to, among other things: appropriate ongoing diagnostic and assessment services, to ensure that services and medications are adjusted in accordance with changes in the prisoner’s mental health; medically indicated psychotropic medications administered as and when medically appropriate; medically necessary scheduled and unscheduled confidential mental health counseling; structured and unstructured out of cell recreation opportunities; and constitutionally adequate mental health crisis intervention. Despite some positive changes in the outpatient mental health care provided to ADX prisoners, including
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the BOP’s recognition in the May 1, 2014 Program Statement that prisoners designated levels CARE2-MH and CARE3-MH require varying degrees of outpatient mental health treatment, services that are fundamental to a constitutionally adequate outpatient level of care remain chronically deficient, in that medically necessary medications are still commonly withheld or improperly administered, counseling is frequently delayed or unavailable, and established diagnoses continue to be ignored for “security” reasons, among other things.
18. In addition, because an accurate diagnosis is essential to the delivery of constitutionally adequate mental health care, and also because of the unique dangers to mental health that are posed by the conditions of confinement at ADX, the Eighth Amendment requires that prisoners designated for confinement at ADX receive a thorough psychological evaluation either before their transfer to ADX or immediately after their arrival there, and that prisoners receive periodic psychological evaluations after their arrival at ADX to identify signs and symptoms of developing or worsening mental illness and facilitate appropriate treatment. This evaluation process, too, must meet the contemporary community standards utilized by mental health professionals evaluating and diagnosing patients with mental illnesses. In conjunction with its May 1, 2014 Program Statement, in the summer of 2014 the BOP undertook to screen for mental illness all prisoners at the ADX. This initial step identified dozens of men having mental illnesses, despite Defendant’s sworn assurance to Congress, after the initiation of this lawsuit, that its policies would preclude housing of prisoners with mental illness at ADX. However, since that screening, upon information and belief, additional men have been transferred to the ADX without a mental health screening, and no further update screening has been undertaken or planned for the rest of the facility. A reasonable and constitutionally
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adequate screening program will need to continue for all new prisoners and must be scheduled to periodically re-occur for current prisoners.
19. Certain operational procedures and practices at ADX disproportionately and unconstitutionally impact prisoners with mental illness. In particular, as detailed below the most common (and for many prisoners the only) way to leave the ADX is to complete a “Step-Down” program in which prisoners work their way through a series of successively lower security levels and thereby have the ability, by maintaining perfect conduct for several years, to earn their way to a placement at a lower security prison (often a maximum security United States Penitentiary, albeit one offering much more freedom than ADX). It is unrealistic to expect many prisoners with chronic mental illness to avoid any disciplinary infraction for several years. Accordingly, many such prisoners are extremely unlikely to complete the Step-Down Program, because the manifestations of their mental illness, even if non-violent, frequently violate some BOP discipline standard. For example, a single instance of being observed masturbating in one’s cell can and frequently does result in the expulsion of a prisoner from the Step-Down program. As a result, prisoners with chronic mental illness end up in a seemingly endless cycle, doing their best to maintain clear conduct for months or years, then getting returned to the starting line for a transgression. The Constitution and other applicable laws require the modification of policies or procedures to provide prisoners with mental illness a reasonable opportunity to program their way out of the ADX, lest they be sentenced de facto to life imprisonment there by reason of their mental illness only.
20. The BOP enacted an institutional supplement for USP Florence on November 10, 2014, entitled “Secure Steps Towards Awareness Growth and Emotional Strength (STAGES)
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Program,” which begins to address some of the difficulties inherent in the standard ADX StepDown Program. Even with this revised policy, the Step-Down Program continues to disproportionately and unconstitutionally affect the ability of prisoners with mental illness to maintain appropriate access to mental health care while working their way out of the ADX.
21. In addition to the foregoing diagnostic and treatment imperatives, given the extreme isolation and sensory deprivation inflicted on prisoners confined at ADX, the Constitution requires the implementation of a preventative mental health program. To meet this constitutional standard, the BOP must implement primary and secondary efforts to mitigate the effects of confinement in isolation on both prisoners who have or who develop diagnosed mental illness, and prisoners who do not have a diagnosed mental illness but who are exposed to the risk of, or experience, signs and symptoms of mental disturbance associated with confinement in isolation, such as anxiety, memory loss, loss of the ability to concentrate, situational depression, and chronic insomnia, among others. A constitutionally adequate program of preventative care includes, among other things enhanced training for correctional staff assigned to segregation units, enhanced training for medical and mental health staff members working in such facilities, modification of operational and physical attributes of such units to reduce the risk they pose to mental health without impacting security, and educational or other programming for prisoners, to help them understand and address the risks to their mental health arising from confinement in isolation. In addition, meaningful mental health rounds, by an appropriately trained clinician, should occur at least weekly for purposes of identifying prisoners in need of mental health intervention and to facilitate timely mental health interventions as clinically indicated.
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22. Prevention and treatment efforts also must include excluding prisoners with serious mental illness from being housed in the ADX if the current conditions of confinement at the ADX are not significantly changed, or, if an “exclusion policy /order” is not implemented and complied with, changing the conditions of confinement for ADX prisoners with mental illness, to include adequate out of cell structured therapeutic activity and adequate out of cell outdoor unstructured recreational time. Out of cell individual counseling offered in a confidential setting a on a regular basis as clinically indicated should also be available. These prevention interventions will decrease the risk that a prisoner with mental illness will have the symptoms of his mental illness exacerbated by the conditions of confinement and should also help to improve his clinical condition. Upon information and belief these prevention interventions will also increase security at the ADX and decrease both operating costs and the risk of injury to staff and prisoners.
23. The BOP’s voluntary decision to exclude certain prisoners, including certain class representatives, from confinement at ADX following the initiation of this litigation does not render the claims of those prisoners moot and does not limit the requirement that the BOP provide these individuals with constitutionally adequate mental health treatment. Plaintiffs seek, through this lawsuit, to ensure that all prisoners with mental illness detained at ADX for any period of time receive constitutionally adequate mental health diagnosis and treatment. The BOP’s decisions on the day-to-day locations of Plaintiffs in their custody do not alter BOP’s constitutionally-mandated responsibilities, nor do they defeat the court’s authority here.
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24. This lawsuit does not seek a declaration that the conditions of confinement at ADX are unconstitutional for all prisoners. Rather, this lawsuit seeks a court order that will fundamentally and irrevocably reform the provision of mental health care at ADX by:
(a) requiring the BOP to provide prisoners designated to ADX with the diagnostic services and four levels of mental health care appropriate to the seriousness of their mental illness, as identified above;
(b) requiring the BOP to provide all such diagnostic and treatment services either on-site at the ADX or at another facility, and requiring that if the BOP elects to provide some such services outside the ADX, it ensures that all Plaintiffs, Interested Persons, class, and subclass members receive such diagnostic and treatment services at such facilities;
(c) requiring the modification of ADX’s operating policies to ensure prisoners with mental illness have a reasonable opportunity to complete a transitional program and earn a transfer out of ADX despite the periodic manifestation of their mental illness in a manner that violated BOP conduct standards;
(d) requiring the implementation of constitutionally adequate programming for the prevention of mental illness and mental impairments caused or contributed to by the extremely isolated conditions of confinement imposed on all ADX prisoners; and
(e) providing for Court-supervised monitoring of compliance with the order for long enough to ensure that Plaintiffs, Interested Parties, class, and subclass members receive adequate mental health treatment services at whatever location the BOP chooses to house them, and that operational and programming changes mandated by the Court are sufficiently
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institutionalized to ensure that the BOP will not, for want of will or oversight, allow conditions to deteriorate and revert to the situation that existed when this case was filed.
III. JURISDICTION 25. This Court’s subject matter jurisdiction over the allegations in this Second Amended Complaint is based on 28 U.S.C. § 1331, in that the claims for injunctive relief arise under the United States Constitution and federal statutes. The request for declaratory relief is based upon 28 U.S.C. § 2201, in that an actual controversy exists between Defendant and each Plaintiff over the denial of services that are guaranteed by the United States Constitution.
IV. VENUE 26. Venue is proper in the District of Colorado under 28 U.S.C. § 1391(b), because a substantial part of the acts or omissions that give rise to Plaintiffs’ claims occurred or will occur in the District of Colorado.
V. PARTIES 27. Class Plaintiffs Harold Cunningham, Percy Barron, Alphonso Blake, Jabbar Currence, Carlton Dunbar, Scott Fountain, Sean Gillespie, Charles Hipps, Ronnie Houston, John Lamb, Herbert Perkins, Arnell Shelton, John J. Powers, and Marcellus Washington are either currently housed at ADX or were housed at ADX at the time the Complaint and Amended Complaint were filed. Each Plaintiff has a mental illness, and in many cases a serious mental illness. The care that each Class Plaintiff received or is receiving at ADX for his mental illness is constitutionally deficient and otherwise fails to satisfy Defendant’s legal obligations to Plaintiffs. Specific facts relating to each Class Plaintiff are set forth in Section VII of this Second Amended Complaint, below.
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28. Plaintiff CLA operates Colorado’s “Protection and Advocacy System,” seeking to ensure the safety, well-being, and dignity of people with disabilities in group homes, people with disabilities in jail or prison, people confined in mental health facilities, and elderly people in long-term care. As detailed in Section IX, below, CLA has a federal statutory mandate to advocate on behalf of people with disabilities, including ADX prisoners with mental illness.
29. Defendant BOP is a federal law enforcement agency subdivision of the United States Department of Justice (“DOJ”), and is responsible for the administration of federal prisons, including ADX. The BOP maintains physical custody of Plaintiffs and class members. The BOP is charged with establishing policies and regulations that are safe, humane, and secure for all federal penitentiaries and other prison facilities.
VI. GENERAL ALLEGATIONS A. Background and Operation of ADX
30. At any given time, between 400 and 500 prisoners are housed at ADX in nine different maximum-security housing units, which are divided into six security levels: the Control Unit (or “Bravo” Unit); the disciplinary Special Housing Unit (also called “Charlie” Unit, “Zulu” Unit, the “SHU,” or the “Hole”); so-called “Range 13,” an ultra secure and isolated four-cell wing of Charlie Unit in which the BOP houses prisoners it thinks require confinement with virtually no human contact; four so-called “General Population” Units (“Delta,” “Echo,” “Fox,” and “Golf” Units), the Special Security Unit (also called the “SAMs” Unit or “Hotel” Unit); and two units (“Joker” Unit and “Kilo” Unit) that in recent years have been used as transitional housing units for prisoners who have entered the so-called “Step-Down Program,” in which they can earn their way out of ADX and into a lower security classification. Photographs of the
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prison’s exterior are attached hereto as Exhibit 1. At some point one side of Joker Unit was converted into an extension of ADX’s Special Security Unit for prisoners under Special Administrative Measures (“SAMs”). Accordingly, as of the time of this filing, only one side of Joker Unit, comprising 32 cells, houses prisoners in the first stage of the Step-Down Program.
31. Depending on which unit they are in, prisoners spend at least 20, and as much as 24, hours per day locked alone in their cells. The cells measure approximately 12 feet by 7 feet, and have solid walls that prevent prisoners from viewing the interiors of other cells or having direct contact with prisoners in adjacent cells. All ADX cells have solid doors with a small closable slot. Cells in all units other than Hotel, Joker, and Kilo Units also have an interior barred wall with a sliding door, which together with the exterior door forms a sally port in each cell. Each cell is furnished with a concrete bed, desk, and stool, and a stainless steel combination sink and toilet. Cells in all units other than Hotel, Joker, and Kilo Units include a shower with an automatic shut-off valve. The beds are usually dressed with a thin mattress and blankets over the concrete. Each cell contains a single window, approximately 42 inches tall and four inches wide, which allows entry of some natural light but which is designed to ensure that prisoners cannot see anything outside of their cells other than the building and sky. Many cells, except those in the SHU, are equipped with a radio and black and white television that offers religious and educational programming, along with some general interest and recreational programming. Televisions often are withheld from prisoners as punishment. Meals are delivered three times a day. With few exceptions, prisoners in most ADX units are allowed out of their cells only for limited social or legal visits, some forms of medical treatment, visits to the “law library” (essentially a cell with a specialized computer terminal that provides access to a limited range of
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federal legal materials), and a few hours a week of indoor or outdoor recreation. Otherwise they remain locked in their cells. Photos of a standard ADX cell are collected in Exhibit 2 hereto.
32. The Control Unit is among the most secure and isolated units currently in use at ADX. Prisoners in the Control Unit are isolated from the other prisoners at all times, even during recreation, for extended terms often lasting six years or more. Their only meaningful contact with other humans is with ADX staff members. The compliance of Control Unit prisoners with institutional rules is assessed monthly; a prisoner is given “credit” for serving a month of his Control Unit time only if he maintains clear conduct for the entire month. As detailed below, Defendant historically provided no mental health care or psychotropic medication to Control Unit prisoners, and upon information and belief, continues those practices with respect to some prisoners, despite Defendant’s revised policies that require these services be provided to prisoners housed in the Control Unit. Given their complete lack of access to mental health care, prisoners with serious mental illness confined in the Control Unit frequently have behavioral issues caused by their mental illness. Such conduct often results in the loss of credit for Control Unit time served, thus extending the prisoner’s time in the extreme isolation of the Control Unit, sometimes for years. For example, Plaintiff John Powers entered the ADX Control Unit in 2001 with a 60-month sentence, but as a result of disciplinary incidents (including a number of instances of extreme self-mutilation) was not released into the ADX General Population until March 2011, after more than 120 months in the Control Unit. During that time he received no meaningful mental health care at ADX.
33. Prisoners confined to the SHU live in similar isolation. They are continuously segregated from other prisoners, even during recreation. Unlike other ADX prisoners, those in
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the SHU are frequently denied access to televisions and radios, and sometimes are confined with nothing in their cells but a mattress and minimal clothing (for example, a t-shirt and boxer shorts). ADX prisoners are housed in the SHU in several circumstances. Most ADX prisoners spend at least a few days in the SHU upon their arrival at the institution. Others are moved to the SHU pending investigation of incidents such as fights that occur from time to time elsewhere in the institution. Prisoners who receive disciplinary incident reports (or “shots” in the ADX vernacular), and who, as a result, are sentenced to a term of punitive segregation, serve that time in the SHU. Like Control Unit prisoners, many prisoners confined to the SHU are serving a specified term of disciplinary detention, but that time may be extended by further shots. As in the Control Unit, prisoners with mental illness held in the extreme isolation and sensory deprivation of the SHU frequently receive additional shots. As a result, many prisoners with serious mental illness have lived in the ADX SHU for many months, and some have lived there for years.
34. In the four “General Population” units, prisoners also are isolated from one another, spending at least 22 hours per day alone in their cells. One or two days a week they are allowed outside recreation time, during which they may able to see and speak with a limited number of other prisoners while all are confined in separate outdoor cages of the kind depicted in Exhibit 3. A photograph of individual outdoor recreation enclosures of the sort used by Control Unit and SHU prisoners is attached as Exhibit 4. One or two days a week, prisoners in most ADX units also have a few hours of access, one at a time, to individual indoor recreation rooms of the sort depicted in Exhibit 5.
35. The ADX Step-Down Program is a series of three transitional housing units in which prisoners are afforded direct, although still extremely limited, contact with other prisoners.
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The step-down units represent a type of halfway house on the path to being allowed to leave ADX for another prison. Still, prisoners who reside in the step-down units are confined to their cells for all but a few hours a day. Because of the erratic way that the ADX Step-Down Program operates, the step-down units are particularly dangerous for prisoners with mental illnesses who are trying to “earn” their way to a lower security classification.
36. Every prisoner intent on earning his way out of ADX is required to pass through Joker Unit, one side of which, comprising 32 cells, houses the first stage in the Step-Down Program. Prisoners are eligible for transfer to Joker Unit only after completing an extended period of clear conduct. Prisoners who avoid trouble in Joker Unit are eligible to move, after a time, to the second phase of step-down, where they have more freedom. The second phase is housed at USP Florence, which lies directly across the street from ADX. Prisoners who successfully complete the second step-down phase are eligible to move to the final step-down phase (also housed at USP Florence), which provides even more freedom and a pathway to a transfer to a regular maximum security federal penitentiary. Successful completion of the StepDown Program can take years, even if a prisoner behaves perfectly. But any transgression, however minor, can and often does result in the prisoner’s removal from the program, placement back in the ADX SHU, and a restarting of the good-conduct clock. Many ADX prisoners have made it partway through the Step-Down Program several times, only to be returned to the SHU or general population based on a small, or fabricated, transgression.
37. Unlike other ADX cells, the individual cells in the step-down units at ADX have no interior bars. Accordingly, only one sliding solid steel door separates prisoners from the open day room at the center of the unit. Joker Unit prisoners are part of a “Recreation Group” of up to
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seven other prisoners housed on the same tier. Each Recreation Group is released at once into the day room or outside recreation yard, where they have unrestrained access to one another. Exhibit 6 includes several photographs of Joker and Kilo Units, which in recent years have had a nearly identical configuration, as well as a Kilo Unit cell showing the door and the absence of an internal grill.
38. For most ADX prisoners, being transferred into Joker Unit is a disorienting and dangerous experience. After years of isolation, with no direct, unrestrained contact with other human beings, many prisoners experience a fundamental loss of even basic social skills and adaptive behaviors, and predictably find themselves paranoid about the motives and intentions of other prisoners, as well as staff members. Once placed into unrestrained contact with other, similarly impaired and paranoid men, the stress on prisoners -- even those with no mental illness -- can be extreme. Assaults and stabbings are common. In 2005, two ADX prisoners in Kilo Unit slowly beat and stomped a third prisoner to death over a period of many minutes in full view of ADX staff members, who made no effort to intervene until the victim was lying still, either dead or near death, in a pool of blood. Two serious stabbings occurred in Joker Unit between November 2011 and September 2012. More recently, on April 4, 2013, plaintiff Carlton Dunbar was attacked in Joker Unit and stabbed in the head by another prisoner. The staff took no action and, as a result, Mr. Dunbar was injured, both by the stabbing and by exposure to the feces and blood of the other prisoner, who has Hepatitis C. In addition, after leaving the unarmed Mr. Dunbar to defend himself against an armed attacker for almost 15 minutes, the ADX staff finally intervened, and when they did they aggressively pinned Mr. Dunbar to the ground, injuring his calf. They then applied hand and leg restraints so tightly that Mr. Dunbar lost feeling in his hand
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and ankles. Although Dunbar, who has a serious mental illness, survived the attack, the attack on him, and other attacks on prisoners in Joker and Kilo Units, clearly illustrate the systemic failure of the ADX Step-Down Program, particularly for prisoners with mental illness.
39. Recreation Groups are formed, in part, by the need to separate prisoners who are not supposed to be housed together or allowed contact with one another. For example, members of rival gangs would not be placed in the same Recreation Group. Similar “separations” can result from past conflicts between particular prisoners, or situations in which one prisoner has testified against another prisoner.
40. When members of one Joker Unit Recreation Group are out of their cells, the other Recreation Groups in the unit are supposed to be securely locked in their cells. However, that objective is not always met at ADX. In addition, because cells in Joker Unit lack an internal barred wall, prisoners housed in Joker Unit who have separations often are separated from their separatees only by a single steel door.
41. That fact creates extreme danger and stress for Joker Unit prisoners, because ADX staff members frequently open the doors of Joker Unit cells unexpectedly, giving prisoners direct and potentially lethal access to one another. For prisoners with personal protection concerns arising from health problems, age, or past cooperation with law enforcement officials, the potential that his cell door will open suddenly and unexpectedly turns every moment that another Recreation Group spends in the Joker Unit day room into a life or death moment.
42. The dangers of Joker Unit, and in particular the risk of physical confrontation because of a staff member’s actions, are widely known to ADX prisoners, increasing the stress they experience upon entry into the Step-Down Program. When combined with the ravages of
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untreated or inadequately treated mental illness, those stresses make it virtually impossible for many prisoners with mental illness to earn their way out of ADX by completing the Step-Down Program. Thus, even in the unlikely event that a prisoner with mental illness -- despite inadequate mental health care -- can maintain clear conduct long enough to qualify for the StepDown Program, very few can hold themselves together long enough to complete that program. Instead, they frequently succumb to the behavior caused by their illness, are removed from stepdown and transferred back to the SHU and then “general population,” all the while being denied the mental health care they need to have any realistic chance to get better, succeed in conforming their behavior to institutional norms, and qualify for transfer to less secure prisons. In part because of this cycle, the number of prisoners at ADX with mental illness, including serious mental illness, has risen steadily in recent years, and will continue doing so until the BOP reforms the mental health care system at ADX and addresses the patent deficiencies in the ADX Step-Down Program.
43. In all units at ADX, Defendant makes a determined and calculated effort to dominate prisoners through the use of punitive techniques that include the use of extended periods of isolated confinement in the Control Unit or SHU and threats of other punitive measures such as the withholding of privileges (such as access to a television set, access to the in-house “commissary” where prisoners can purchase food and other items, access to the telephone, and prompt delivery of inbound mail). ADX programs are designed based upon a punishment philosophy rather than a control philosophy. The behavior of prisoners with mental illness, in particular, deteriorates very rapidly when they are placed into programs designed to punish rather than to control unacceptable behaviors.
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44. Consistent with ADX’s punishment-focused correctional model, certain members of the correctional staff at ADX routinely use physical abuse of unruly or merely assertive prisoners to create fear and to demonstrate the dominance of the correctional staff. The harsh and rigid disciplinary philosophy employed at ADX is inappropriate for prisoners with serious mental illness, particularly those who not only have mental illness but whose minds also are dulled by confinement in sustained isolation. For example, certain prisoners are required to stand with their backs to the door and hands on the wall when their meals are delivered. If a prisoner fails to instantly comply, officers often depart without leaving a food tray. As a result, prisoners with psychosis or deep depression, including those whose conditions are exacerbated by Defendant’s failure to provide required medications and other mental health care, frequently go without food on the ostensible basis that they defied an officer’s order, when in fact the prisoner’s only failing was a failure to understand the order or instantaneously clear his mind of fog induced by untreated mental illness and sustained isolation.
45. Plaintiffs do not dispute the need for security at ADX, and acknowledge that unruly or violent prisoners may sometimes require physical restraint. But as applied to prisoners with mental illness, the brutal disciplinary model employed by the staff at ADX is often an instrument of terror and abuse, deployed by staff members, many of whom lack the training and skills necessary to manage prisoners with mental illness safely and effectively, and some of whom provoke and aggravate the very conduct they punish.
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B. Extended Confinement in Isolation Can and Often Does Have a Devastating Effect on Prisoners’ Mental Health 46. As early as the 1960s, electroencephalography (“EEG”) examinations
demonstrated the slowing of brain waves of prisoners confined in isolation for longer than a week.
47. A landmark study in the 1970s showed that subjects in solitary confinement often experienced impaired functioning of the brain waves associated with the ability to control emotions and key cognitive functions.
48. Similarly, a 2011 study demonstrated that after only a week of solitary confinement, prisoners showed decreased EEG activity, indicative of increased stress, anxiety, and depression.
49. The BOP has known since at least 1999 that extended periods of confinement in isolation can be psychologically damaging to any prisoner and can be particularly harmful to individuals with pre-existing mental illness. Specifically, a 1999 study conducted under the auspices of the DOJ and the National Institute of Corrections concluded:
Insofar as possible, mentally ill inmates should be excluded from extended control facilities. Each inmate being considered for such a facility should have a mental health evaluation. Although some mentally ill offenders are assaultive and require control measures, much of the regime common to extended control facilities may be unnecessary, and even counterproductive, for this population. 50. In May 2013, the same month that Plaintiffs filed their Amended Complaint, the United States Government Accountability Office (“GAO”) issued a detailed report entitled “Bureau Of Prisons: Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing.” That report includes many troubling findings concerning the BOP’s operation of ADX, including one making clear that the BOP’s publication of policies
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does not even begin to address the problems at which the policies are aimed, because the BOP
does not monitor compliance with its policies at ADX:
While BOP has a mechanism to centrally monitor many of its segregated housing unit policies, BOP does not centrally monitor the policies specific to its most restrictive segregated prison, the ADX facility. As a result, BOP has less assurance that ADX staff consistently follows ADX-specific policies to the same degree that these requirements are followed for [Special Housing Units] and [Special Management Units]. 51. The GAO also found:
While most BOP officials told us there was little or no clear evidence of mental health impacts from long-term segregation, BOP’s Psychology Services Manual explicitly acknowledges the potential mental health risks of inmates placed in long-term segregation. Specifically, it states that BOP “recognizes that extended periods of confinement in Administrative Detention or Disciplinary Segregation Status may have an adverse effect on the overall mental status of some individuals.” 52. Following a June 2012 oversight hearing in the United States Senate during which
the Director of the BOP admitted that the BOP has never evaluated the impact of solitary
confinement on prisoners, the BOP commissioned an independent study on that issue. The study
culminated with a 242 page report issued in December 2014. Among many other BOP failings,
that report detailed, as follows, the mismanagement of mental illness in segregation units such as
ADX:
(a) A large number of prisoners in solitary confinement need mental health treatment, but are not receiving it;
(b) No protocol exists to identify prisoners with mental illness who should be kept out of solitary confinement;
(c) Inmates often receive a mental health diagnosis by medical students or interns who are not trained in psychiatry, and once diagnosed, they rarely receive follow-up reassessments or proper medication;
(d) No reentry programs or means of tracking for prisoners coming out of segregation exist.
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53. Despite the foregoing and mountains of anecdotal and empirical data confirming the impact on mental health of extended isolated confinement, and even though this case has been pending for three years, the BOP still assigns to ADX prisoners who have mental illness, including serious mental illness, still fails to maintain an adequate program to diagnose and treat the mental illnesses created and exacerbated by the conditions of confinement there, and still fails to prepare prisoners with mental illness from release to society or to less restrictive housing units. C. BOP Has a Documented History of Violating Its Own Written Policies Concerning
Evaluating, Housing, and Treating Prisoners With Mental Illness at ADX 54. The BOP’s written procedures for transferring prisoners to ADX state that prisoners “currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at … ADX.” BOP Program Statement 5100.08, “Prisoner Security Designation and Custody Clarification,” Chapter 7, p.18. The BOP has widely ignored this prohibition, both before and since this lawsuit was filed. The BOP regularly assigns prisoners to ADX even though they have well-documented histories of mental illness, and in many cases, histories showing that their mental illnesses can be controlled with proper treatment. 55. BOP policies also have consistently required that all prisoners are given a psychiatric screening upon arrival at ADX. For example, the BOP’s pre-lawsuit policies require the prison staff to “ensure that assessment and treatment planning procedures exist to identify all prisoners entering the institution with either a recent history or current symptoms of significant mental illnesses and/or risk of suicide.” BOP Program Statement 5310.13, “Institution Management of Mentally Ill Prisoners,” p.4. The May 1, 2014 Program Statement supplements these policies and provides from more explicit levels of screening for mental illness, including
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pre-designation screening, initial care level assignment, and psychology intake screening. During the facility intake screening, prisoners with any of the following must be referred immediately to the Mental Health Program Coordinator for a more thorough assessment:
x Recent history or current symptoms of significant mental illness; x Signs or symptoms consistent with a possible mental disorder; x Use of medication for treatment of a mental illness or disorder; x Documented mental health designation; x Risk of suicide. Id.; BOP Program Statement 6340.04, “Psychiatric Services,” § 9(a). 56. In reality, incoming prisoners at ADX generally have been given only perfunctory interviews that are wholly inadequate as a form of screening or diagnosis. The mental health “screening” provided by the facility typically consisted of a few questions asked in a minute or two, often at a time when the prisoner had just completed a lengthy cross-country trip while tightly chained and shackled, and was apprehensive about his arrival at ADX. Follow-up monitoring and screening was and is virtually nonexistent. Even when the BOP did carry out the psychological or psychiatric screening of a new arrival, it often ignored key factors indicating mental illness, such as, for example, the fact that the prisoner was taking medication for a serious mental illness immediately before arriving at ADX. Plaintiffs allege, on information and belief, that despite the new policies in the May 1, 2014 Program Statement, the BOP still does not provide all incoming ADX prisoners with the evaluations required by policy and the Constitution.
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57. Even when the BOP correctly identifies prisoners at ADX who have a mental illness, many are not given appropriate treatment, including either counseling or medication. Despite the BOP’s updated policies concerning the development of treatment plans and delivery of mental health services, the BOP still regularly is failing to develop meaningful treatment plans even for prisoners who have chronic and obvious mental illness, and failing even to establish at ADX a reliable mechanism for delivering elementary mental health services, such as timely access to psychiatry services for prisoners who have been prescribed psychotropic medications, timely access to crisis counseling, and counseling in both individual and group settings that is delivered in a consistent fashion and includes plans for continuity of care from one provider to another when staffing changes occur.
58. Because of the particularly severe conditions of confinement in the ADX Control Unit, federal regulations require the BOP to adhere to an especially detailed set of mental health standards, including:
The Warden may not refer an inmate for placement in a control unit … [i]f the inmate shows evidence of significant mental disorder or major physical disabilities as documented in a mental health evaluation or a physical examination. 28 C.F.R. §541.41(c)(1). Mental health services. During the first 30-day period in a control unit, staff shall schedule the control unit inmate for a psychological evaluation conducted by a psychologist. Additional individual evaluations shall occur every 30 days. The psychologist shall perform and/or supervise needed psychological services. Psychiatric services will be provided when necessary. Inmates requiring prescribed psychotropic medication are not ordinarily housed in a control unit. 28 C.F.R. §541.46(i) (Emphasis added.) 59. Both before and since this lawsuit was filed, BOP has repeatedly violated every major requirement of these regulations. As detailed below, several of the Plaintiffs are currently
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are or during the relevant period have been assigned to the ADX Control Unit in violation of section 541.41(c)(1). Moreover, at various relevant times the BOP has placed incoming prisoners with an existing prescription for psychotropic medication in the Control Unit, where the BOP refuses to administer such medication in violation of section 541.46(i). The BOP has justified this in Orwellian fashion: it discontinued the prisoner’s medication, thereby making the now non-medicated prisoner “eligible” for placement in the Control Unit. Then, when this newly “eligible” prisoner requested medication needed to treat his serious mental illness, he was told that BOP policy prohibits the administration of psychotropic medication to him so he should develop “coping skills” as a substitute for the medication being withheld. Instructing a prisoner confined in long-term segregation and who has Schizophrenia or Bipolar Disorder to self-treat his disease with coping skills is like demanding that a diabetic prisoner learn to “cope” without insulin. Likewise, the required 30 day “individual evaluations” are in actuality rarely performed on prisoners in the Control Unit.
60. Both the former and as-revised BOP policies require that prisoners with mental illness be monitored on an ongoing basis to assess treatment compliance. BOP Program Statement 5310.13, “Institution Management of Mentally Ill Prisoners,” at 5; May 1, 2014 Program Statement at 10-11. Under the BOP’s former policies, for certain prisoners, including those receiving psychotropic medication and those segregated for mental health reasons, mental health staff must, at a minimum, conduct a monthly interview to assess the prisoner’s treatment strategy. Program Statement 5310.13 at 5. Under the BOP’s revised May 1, 2014 Program Statement psychosocial interventions are required on an even more regular basis: monthly for prisoners designated CARE2-MH and weekly for prisoners designated CARE3-MH and CARE
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4-MH. Program Statement 5310.16 at 10-11. As with other applicable policies, ADX staff routinely ignore this written monitoring requirement. Some prisoners never leave their cells or speak with staff for months. Some lived for extended periods in squalor, in cells caked with their own feces and bodily fluids, without bathing, and in some cases without even getting out of bed. Any meaningful “monitoring” would identify and trigger intervention for such prisoners, but rarely, if ever, does ADX staff seek to remedy the fetid and unsafe living conditions of many of the people in their custody who have mental illness. D. ADX Continues to House Prisoners With Serious Mental Illness Who Are
Dangerous to Themselves and Others 61. Plaintiffs, together with other class members, have various forms of mental illness, including Major Depression, Schizophrenia, Bipolar Illness, Schizoaffective Disorder, various personality disorders with significant functional impairments, Post-Traumatic Stress Disorder, severe developmental or other mental disabilities, and other chronic and serious mental conditions. These mental conditions are described and defined more completely in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”). 62. Prisoners with mental illness, including “serious” mental illnesses, are sometimes confined at ADX for months or years without adequate mental health treatment, with predictably devastating results. These conditions exacerbate their mental illness, making them increasingly dangerous to themselves and others. Their inadequately treated illnesses often lead to aggressive and violent behavior which is in turn used by the correctional staff as justification (if not pretext) for further acts of extreme isolation and violence directed at the prisoner, thereby establishing a vicious cycle in which anger begets a violent response that begets more anger.
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63. During the relevant time period, many prisoners housed in the SHU have chronic mental illness. Some of them have been housed in the SHU more or less continuously for years. Some routinely smeared themselves and their cells with their own feces. Some howled or shrieked continuously, or banged their metal showers at all hours of the day or night. Some spoke to themselves continuously. One longtime SHU resident carried on conversations with himself virtually every day, using multiple voices. Another, Jonathan Francisco, did not speak an intelligible word to anyone in the roughly two years between his arrival at the prison in late 2011 and his eventual transfer to a BOP medical facility, in 2013, following Plaintiffs’ filing of an emergency motion in this case, which the BOP did not contest. During his time at ADX he spent most of his time staring blankly at a wall in his cell and was frequently caked with his own feces. Members of the ADX staff responsible for his care intermittently tormented him by yelling at him and antagonizing him as if he was a reviled animal.
64. Plaintiffs Sean Gillespie and Ronnie Houston currently are assigned to the ADX Control Unit despite histories of serious mental illness requiring medication and treatment, which are being denied to them. Plaintiff Marcellus Washington spent more than eight years in the Control Unit before his release to the ADX general population in mid-2012, where he remains, and where he receives no meaningful treatment. Yet another plaintiff, Jack Powers, spent nearly ten years in the Control Unit before he was moved to the ADX general population in early 2011. During his time in the Control Unit, Mr. Powers slowly descended into madness, horribly mutilating himself as a result of his serious mental illness, repeatedly ramming his head into a metal door frame, amputating two fingers, a testicle, and his scrotum, tattooing his entire body with a razor blade and carbon paper dust, trying to inject bacteria into his own brain, and
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slashing his wrist severely enough that he lost consciousness. All of this occurred after the BOP itself diagnosed Mr. Powers with a serious mental illness and all of it happened while he was being “monitored” by Defendant and its agents. Although he was referred for treatment three times at a BOP medical facility while confined in the Control Unit, and received prescribed medication for his serious mental illness during two of those visits, each time he was returned to ADX his treatment ceased, and his symptoms and mutilations escalated.
65. Prisoners with mental illness, including those with serious mental illnesses, also are housed throughout ADX’s General Population Units, and inhabit most of the 12 housing ranges that comprise those units. Such prisoners range from recluses who literally have not left their cells in months or years, to more boisterous prisoners who bang on their cell bars, or their showers, day and night, talk to themselves, wail and scream, and otherwise express their indeterminate suffering to the great disruption and discomfort of other nearby prisoners.
66. During the relevant period the prison’s “General Population” Units and SHU were home to a significant number of prisoners with such chronic and obvious mental illness that the DOJ itself has gone to court to have them involuntarily committed to treatment programs or forcibly medicated. These prisoners have mostly been diagnosed with Schizophrenia, and many have repeatedly been treated by the BOP for that illness and both exhibit chronic and obvious psychosis. And yet they all were longtime residents of ADX and, upon information and belief, during their time at ADX received no meaningful mental health care whatsoever.
67. Upon information and belief, certain ADX staff members have sometimes used prisoners with mental illness as weapons against other, particularly disfavored prisoners. For example, prisoners at ADX periodically rotate cells, ostensibly for security reasons. For most
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prisoners, a cell rotation means moving into the next cell on the same range. When a prisoner is “behind” a prisoner with serious mental illness in the cell rotation pattern, at each cell rotation he may find himself forced to move into a cell that is coated with dried human waste, semen, urine, and sometimes blood. Because many ADX prisoners have contagious blood-borne diseases, such as hepatitis C, exposure in this manner to another prisoner’s waste carries with it an immediate and dire risk of infection with a serious and sometimes fatal illness. Nevertheless, ADX prisoners are routinely forced into waste-caked cells left behind by a fellow prisoner with obvious mental illness. Prisoners who refuse to enter contaminated cells are punished, taken to the SHU and denied privileges. Anyone who accepts assignment to a filthy cell left behind by a prisoner with mental illness must then clean the cell himself -- often with few if any cleaning supplies -- and then await the next rotation, when the process will be repeated. Upon information and belief, certain ADX staff members deliberately place disfavored prisoners behind unsanitary prisoners with mental illness in the cell rotation pattern for the intended purpose of exposing the unfortunates to the constant noise and harassment supplied by a neighbor with mental illness and to ensure that after every cell rotation the disfavored prisoner will have to clean another filthy cell.
68. The BOP maintains separate facilities in other locations for dealing with prisoners who have mental illness, including severe mental illness, including the Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP Springfield”), the Federal Medical Center in Butner, North Carolina (“FMC Butner”), the Federal Medical Center in Rochester, Minnesota (“FMC Rochester”), the Federal Medical Center in Devens, Massachusetts (“FMC Devens”), the High Security Mental Health Step-Down Unit at USP Atlanta, and the High Security STAGES
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Program at USP Florence. MCFP Springfield is an administrative facility that provides medical, mental health, and dental services to male offenders of all security levels, including prisoners classified for confinement at ADX. It now houses many former ADX prisoners transferred from ADX as a result of this lawsuit. FMC Butner is an administrative facility that houses male prisoners of all security levels, including prisoners classified for confinement at ADX. FMC Rochester and FMC Devens are administrative facilities providing specialized medical and mental health services to male offenders. The High Security Mental Health Step-Down Unit at USP Atlanta and the High Security STAGES Program at USP Florence were created in specific response to this lawsuit, for the purpose of housing prisoners with mental illness transferred from ADX due to this lawsuit.
69. Plaintiffs and all other ADX prisoners with mental illness including serious mental illness could be safely and securely housed at any of the facilities referred to in the preceding paragraph for treatment of their mental illnesses. In fact, many of Plaintiffs and a large number of other ADX prisoners have been hospitalized at MCFP Springfield and/or FMC Butner while designated for confinement at ADX. E. Mental Health Care Treatment at ADX Was and Remains Woefully and
Constitutionally Inadequate 70. The BOP does not provide adequate mental health staffing at ADX. At the time this action was filed, only two mental health professionals -- both psychologists -- were responsible for the mental health of the approximately 420 prisoners housed at ADX, many of whom have chronic mental illnesses or other mental health issues, and many others of whom experience periodic acute mental health crises. As of June 2012 these health care professionals were assisted by a psychiatrist who spent only approximately one day per week at ADX, a period
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that was grossly inadequate given the substantial number of prisoners at ADX who require psychotropic medications.
71. Since this action was filed, and upon information and belief, because this action was filed, the BOP has increased from two to four the number of full time psychologists serving prisoners at ADX, and has also added to the ADX mental health staff a part time psychiatric nurse and a psychology technician. However, turnover among the psychologists is rampant, resulting in extended periods during which one or more of the four authorized positions remains vacant, as well as serious problems with continuity of care, which the BOP has done little if anything to address.
72. The FCC Florence psychiatrist who served ADX prisoners as of June 2012 resigned in mid-2012, and has not been replaced. Although a contract psychiatrist was on staff for a few months in 2014 and various other psychiatrists have occasionally provided in-person services at ADX in the past few years, since the summer of 2012 ADX prisoners have been forced to rely primarily on “telepsychiatry” services provided by videoconference. During their habitually short (15 minutes) telepsychiatry sessions, prisoners often remain chained hand and foot, and have at various relevant times been surrounded by corrections officers wielding batons. Under such circumstances, few prisoners are able to communicate effectively with the telepsychiatrist, and almost none receive effective psychiatry help. Moreover, it frequently takes months for prisoners to see a psychiatrist either in person or by telepsychiatry.
73. Even though the BOP has taken some steps to address the gross mental health staffing shortage that existed when this action was filed, the mental health staff remains grossly inadequate to serve the needs of the large number of ADX prisoners who require mental health
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services to address chronic mental illness, acute mental health crises, and the damaging longterm impact that confinement in isolation has even on relatively healthy minds. As a result of inadequate staffing by mental health professionals, ADX prisoners, including Plaintiffs and class members, do not have timely access to mental health professionals, particularly in times of crisis. This leads to prisoners becoming involved in escalating conflicts and violence that would be avoided if adequate mental health staffing were provided at the facility. The consequences of inadequate mental health staffing include a risk of physical harm to Plaintiffs, class members, and other prisoners, and a risk of harm to staff.
74. The BOP provides psychotropic medication to some, but not all, of the prisoners with mental illness who are housed at ADX. Furthermore, although the efficacy of many psychotropic drugs may be affected by the time of administration and by such considerations as proximity of the administration to a meal, ADX staff distributes medications on an irregular schedule that is often inconsistent with the instructions for consumption of the medication. Staff members responsible for distributing medications also frequently make mistakes by distributing the incorrect medication to prisoners, or incorrect dosages of the correct medication. Other medications that are supposed to be taken with food are delivered when no food is available. And the time of day when medications are available to prisoners varies significantly from day to day, which causes problematic and sometimes dangerous fluctuations in prisoners’ medication regimens. In addition, medications formulated to be administered as a solid tablet are frequently delivered in crushed form, which negatively impacts their effectiveness. The haphazard and sometimes reckless distribution of medications substantially interferes with the benefits the
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medications provide to those ADX prisoners lucky enough to be authorized to receive needed psychotropic medications.
75. Many prisoners at ADX receive their psychotropic medication through a “pill line” procedure in which the medication is crushed and given to them at their cell door in a cup. Many of the prisoners at ADX with serious mental illness are severely paranoid as a result of their illness, and generally believe that the staff providing medication is either providing the wrong medication or, in some cases, affirmatively attempting to poison them. In such circumstances, prisoners sometimes ask to receive whole pills that they can recognize (based on extended histories of taking the same medication), or for staff to show them the pills they are being given before grinding them up. Staff members have routinely refused these requests, leaving prisoners with severe mental illness and in some cases psychosis to choose between declining needed medication or consuming a substance they genuinely (even if erroneously) believe will harm or kill them.
76. ADX provides inadequate mental health counseling to prisoners. At various relevant times, most of the “psychology programming” consists of distributing to prisoners books with such titles as “Anger Management for Dummies,” “Choose Forgiveness - Your Journey to Freedom,” and “Why Zebras Don’t Get Ulcers.” Staff award certificates to prisoners diligent and literate enough to self-treat their serious mental illnesses by completing elementary workbooks. Illiterate prisoners have no meaningful access to the negligible therapeutic information distributed by ADX in written form.
77. Some repetitive and elementary psychology programming is also available to the segment of the ADX prisoner population with access to a television. The information provided in
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this manner is of little if any use to many prisoners with mental illness or psychosis. Moreover, many of ADX’s prisoners with the most chronic and devastating mental illnesses have been housed for months or years in the SHU, where many prisoners are denied access to all television programming, including even the meager televised mental health programming provided to other prisoners.
78. Members of ADX mental health staff occasionally talk to prisoners. At various relevant times, those occasional “counseling” sessions were almost invariably conducted through the bars of the prisoner’s cell, in the immediate presence of a correctional officer and within earshot of other prisoners housed on the same range. That process turned psychological counseling into a farce. Few people, in or out of prison, are comfortable discussing intensely personal matters in a highly public environment that renders them subject to ridicule, discrimination, or even violence. The same is true for ADX prisoners, who before this lawsuit was filed were forced by ADX’s approach to mental health “counseling” to choose between forgoing that counseling or exposing themselves to violent assault or death based on events or concerns that they would discuss with a mental health professional and were forced to discuss within easy earshot of other prisoners. Since this lawsuit was filed, the BOP has established a private space in most if not all of ADX’s housing units that is suitable for safe, secure, and private psychology counseling sessions. However, because of the large population at ADX with serious mental illness and the small number of staff members and counseling facilities, “talk therapy” at ADX remains grossly inadequate.
79. Suicide and mental health crisis services at ADX also are systematically deficient. Prisoners with mental illness who threaten suicide have often been goaded by ADX staff
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members to kill themselves. Prisoners who take steps to slash their wrists or hang themselves generally receive only minimal medical treatment for acute injuries. And instead of receiving mental health intervention, they are punished: they receive a disciplinary incident report that sometimes results in a trip to the SHU and loss of privileges. In 2012 an ADX prisoner who attempted to hang himself in a recreation enclosure in the SHU was violently removed from the enclosure by a team of correctional officers in riot gear. Incredibly, an ADX psychologist participated in the violent extraction. After a short stay in a “strip cell,” a nearly empty cell in which the prisoner is clothed in what is essentially a paper robe, he was returned to the disciplinary segregation cell that precipitated his despair and suicide attempt only days earlier.
80. Similarly, in February 2013, nine months after this lawsuit was filed and thus after the BOP was sued for wrongfully disciplining suicidal prisoners, Plaintiff Percy Barron received a disciplinary incident report for trying to kill himself.
81. Upon information and belief, at various relevant times the BOP provided only grossly inadequate training to the staff at ADX, including in particular the corrections staff, regarding mental illnesses and the safe and humane management of prisoners with mental illness. As a result, staff members have routinely resorted to unnecessary violence and disciplinary actions when an inadequately treated prisoner with mental illness acts out. Thus, prisoners who have mental illness, including those in the throes of a psychotic episode, frequently were subjected to barbaric treatment more suited to the dungeons of medieval Europe than to a modern American prison. For example, prisoners with mental illness were routinely “four pointed” -- chained by the wrists and ankles in either a prone or supine position on top of a concrete platform -- often for extended periods. A photograph of an ADX cell with a concrete
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platform bed fitted with rings for four-pointing is attached as Exhibit 7. While chained, prisoners with mental illness sometimes were left to urinate and defecate on themselves, and sometimes were denied basic nutrition.
82. In some cases during relevant periods, ADX staff have turned the simple (although cruel and unconstitutional) refusal to feed a prisoner into a deceptive hoax. ADX prisoners, including those in four point restraints, sometimes have been put on a disciplinary “sack lunch” nutrition program in which they are fed not standard prison trays but a paper bag containing a sandwich or two and a piece of fruit. Many prisoners with mental illness at ADX who are placed on sack lunch restriction have received their sack (suitably videotaped) being delivered to their cells. But when they open the bags (off camera) they sometimes have been empty. Through this ruse ADX staff have produced false video evidence of feeding, raising (if only for a minute) the prisoner’s hope for basic nutrition, then smashing the often-chained and always hungry prisoner’s hopes with a bag of air. Prisoners at ADX who have mental illness often live near the edge of their emotional endurance, and the empty sack lunch is one of many cruel ploys that, upon information and belief, have been used by certain ADX staff members to torture and provoke such prisoners into outbursts that then are used to justify even harsher discipline.
83. Upon information and belief, as a result of this lawsuit, in early 2013 ADX for the first time included in its annual staff training program a module relating to mental illness. That training may be a suitable first step, though Plaintiffs been provided with little information concerning the module. Even after receiving the training some ADX staff members continue to
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neglect, abuse, and torment prisoners with serious mental illness in many if not all of the respects identified in this Second Amended Complaint.
84. As a result of this type of abuse, other prisoners in nearby cells and ranges have been subject to the shrieking and suffering of prisoners undergoing such abuse. Upon information and belief, such abuses were caused and/or exacerbated by inadequate staff treatment and a general failure of supervision.
85. Upon information and belief, the BOP requires or encourages members of the mental health staff at ADX to perform correctional functions. In fact, BOP policy requires psychologists to serve as corrections officers first, and only secondarily as healthcare providers. In this respect psychologists are distinguished in a critical way from chaplains and physicians, who are exempt under BOP policy from performing correctional functions. As a result of this BOP policy, and upon information and belief, at various relevant times ADX psychologists have: performed prisoner escort duty within the prison while armed with weapons, openly brandishing those weapons in the presence of prisoners; worked shifts in the prison’s gun towers; appeared at the doorways of prisoners brandishing clubs in an aggressive fashion; and participated in violent acts toward prisoners, including on at least one instance, participating in a violent cell extraction. The performance of correctional functions by mental health professionals in the presence of or with the knowledge of prisoners blurs the line between the mental health profession and the correctional profession, and destroys whatever trust might otherwise develop among prisoners and the mental health professionals who are the only source of treatment for their mental illnesses. In the absence of some measure of trust, no mental health clinician can effectively treat a prisoner’s mental illness.
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86. As described above and, with respect to Plaintiffs and the Interested Individual below, Defendant’s failure to diagnose and treat serious mental illness has devastating consequences. With utter disdain for human dignity and decency and disregard for the requirements of the Eighth Amendment, Defendant repeatedly has violated the constitutional rights of Plaintiffs, Interested Individuals, the class, and the subclass. F. Defendant Has Displayed Sustained Deliberate Indifference to the Plight and Needs
of Prisoners With Mental Illness at ADX 87. Defendant is, and has been for years, on actual notice of the unmet mental health needs at ADX, but has demonstrated sustained and deliberate indifference to those needs. Defendant’s actual knowledge of the unmet mental health needs of ADX prisoners has come from a variety of sources, including without limitation medical records of Plaintiffs and other prisoners, direct observation of Plaintiffs and other prisoners with obvious mental illness, administrative remedy requests filed by Plaintiffs and other prisoners, past litigation challenging the ADX mental health system, and suicides of prisoners with mental illness.
(1) The Illnesses of Plaintiffs and Their Peers are Obvious 88. As described in this Second Amended Complaint, many of the prisoners at ADX with mental illness do not and cannot hide their conditions. They have screamed, howled, mutilated themselves, smeared their waste, and begged for help. Many have long, documented histories of serious mental illness. Many have filed dozens of written requests for mental health intervention, to little or no avail. 89. Even after this lawsuit was filed, and even in cases of prisoners having obvious catastrophic mental illness and related physical illnesses, BOP staff members, including psychologists, have displayed shocking indifference to prisoners’ needs. For example, a prisoner
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named Richie Hill was held at ADX in isolation for many years, including an unbroken period of over six years before he was evacuated on an emergency basis from ADX to MCFP Springfield on November 28, 2012. For years, Mr. Hill exhibited obvious symptoms of severe mental illness that were ignored by ADX staff. He swallowed objects including rocks, Styrofoam, and radio parts, and was frequently observed eating balls of his own feces. He attempted suicide approximately ten times while at ADX, including once by placing pencil lead, rocks, and pencil particles up his penis. He mutilated his forehead and face by carving pitchforks and “cannibal marks” into it, and also cut his lips open with staples and put flies into the wounds. He also attempted to gouge out his own left eyeball “about six times,” often by pushing rocks into it.
90. While at the ADX, Mr. Hill repeatedly begged the staff for help with his mental issues, and repeatedly asked to be transferred to a mental hospital. In response, in one instance the head psychologist at the ADX, who remains employed by BOP to this day, bribed him to withdraw his transfer request by giving him a radio, which Hill later smashed and ate. In other instances, the BOP responded to his pleas with bureaucratic gobbledygook about his supposed failure to attempt informal resolution of his issues, his violation of a technicality requiring prisoners to confine their administrative remedy forms to a single issue, and his supposedly untimely submission of his requests. His allegedly inadequate paperwork practices generally coincided with periods during which he was acutely psychotic and sitting in his feces-smeared cell without a pencil, complaint form, or any other means to communicate in writing that the BOP was slowly killing him.
91. Mr. Hill’s illness was obvious. Any BOP observer could have seen, and in fact BOP psychology staff did see, Hill smearing feces on the wall and on himself, as well as eating
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his feces. Likewise, the BOP staff would have been easily able to see blood smeared on Mr. Hill’s walls and body. And yet the BOP did nothing until he was very nearly dead.
92. In 2012, Mr. Hill’s legs became infected after he was overcome with a persistent delusion that diamond rings were embedded inside his legs. In an effort to remove the rings, he began digging holes in them with his fingers. The wounds became severely infected and fetid; at one point, a worm emerged from one of Mr. Hill’s wounds. Although Mr. Hill repeatedly asked for medical assistance for his legs, little was done. One member of the medical staff who was aware of his swollen legs told Hill that the swelling would eventually subside. Other staff members stopped by his cell and remarked about his swollen legs, but did nothing.
93. At the same time he was developing what turned out to be a life-threatening staph infection in his legs, Mr. Hill also developed what the BOP’s own clinicians ultimately determined to be “severe malnutrition.” As a result of the ADX staff’s refusal to feed him, he lost 50 pounds in six months and experienced starvation so severe that he resorted to eating rocks. BOP records from the time document staff members refusing to feed him. Mr. Hill also filed at least two administrative remedy requests asking for supplemental food, because he knew he was slowly starving to death. In one of those requests Mr. Hill also again asked for mental health treatment, including psychotropic medication.
94. The BOP’s rejection of Mr. Hill’s request for desperately needed food and mental health care is straight out of Kafka, citing five bureaucratic reasons for refusing to give food and medicine to a man who was obviously starving and experiencing psychosis:
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95. In October 2012 ADX staff members finally determined that Mr. Hill required an “emergency” medical evacuation to MCFP Springfield, because his legs were completely swollen and he was reduced to crawling around his cell, naked, in a pool of his waste, and rolling up and eating balls of his own feces. Despite recognizing that Mr. Hill required “emergency” treatment in a medical center, it took BOP a month to move him, by which point he was all but dead. Upon his arrival at MCFP Springfield a BOP physician observed that Mr. Hill had severe multiple systemic infections, appeared to be chronically and acutely septic, and had multiple draining deep sores. The physician informed Mr. Hill that his legs might require amputation, and, in fact, that the infection was so severe that his life was in danger. He ultimately was diagnosed with a severe staph infection, in addition to active psychosis.
96. It took BOP medical personnel and outside doctors more than three months to restore Mr. Hill to some semblance of stability. He later was transferred to a residential BOP
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mental health unit. That the foregoing events occurred at any time in any BOP facility reflects callous institutional indifference to prisoners with mental illness. That it happened at ADX, which houses fewer than 500 of the most closely monitored prisoners on the planet, reflects the depth and breadth of the mental health catastrophe that precipitated this lawsuit. The fact that it happened during the pendency of this case reflects a deliberate disregard of the rights, health, and safety of Plaintiffs and the other members of the class and subclass that demand the remedies sought in this case. And the fact that most of the BOP staff members who neglected Mr. Hill are still employed by the BOP and none has have suffered any ramifications as a result of the deliberate indifference to Mr. Hill’s obvious serious medical needs confirms that the BOP is either disinterested in or incapable of fully addressing the systemic problems at ADX without close and continuing court supervision.
(2) A Series of Suicides by Prisoners with Mental Illness Have Demonstrated in Tragic and Permanent Terms the Past and Continued Deficiencies in the ADX Mental Health System
97. Since ADX opened in 1994, at least seven ADX prisoners have committed suicide there:
(a) On June 17, 1999, Kevin Wilson hanged himself in his cell with a bedsheet;
(b) On December 9, 1999, Gregory Britt hanged himself in a recreation cage; (c) On November 18, 2002, Lawrence Klaker hanged himself in his cell with shoelaces; (d) On April 17, 2006, Lance Vanderstappen hanged himself in his cell with a bedsheet;
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(e) On May 27, 2008, John Frierson hanged himself in his cell with a braided bedsheet;
(f) On May 1, 2010, Jose Martin Vega hanged himself in his cell with a bedsheet; and
(g) On September 7, 2013 -- several months after this lawsuit was filed -Robert Knott hanged himself in his cell with a bedsheet.
98. Upon information and belief, most if not all of these prisoners had a mental illness at the time they took their own lives.
99. The deaths of Mr. Vega and Mr. Knott are perhaps the best illustrations, among these suicides, of Defendant’s utter and persistent failure to address the proliferation of serious mental illness at ADX. As described below, ADX’s mental health system failed to screen, monitor, or treat Mr. Vega’s mental illnesses, first diagnosed by the BOP in 2004. Instead, Defendant placed Mr. Vega in ADX’s Control Unit, deprived him of necessary psychiatric medications, and otherwise abused and tortured him over a period of years. These actions had devastating consequences.
100. In 1995, at the age of 20, Mr. Vega was sentenced to life in prison and committed to the custody of the BOP. Mr. Vega was confined at two facilities before he was transferred to ADX.
101. Upon his arrival at ADX on April 5, 2004, Mr. Vega was placed in the Control Unit. Although the details of Mr. Vega’s health care screening upon his arrival at ADX are presently unknown, the screening, such that it was, apparently failed to reveal that he had a serious mental illness. However, upon information and belief, in December 2004, approximately
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eight months after Mr. Vega arrived at ADX, BOP psychologist Marie Bailey diagnosed Mr. Vega with Paranoid Schizophrenia.
102. In March 2005, Mr. Vega was referred to MCFP Springfield for a mental health evaluation, which revealed that Mr. Vega had “a history of depression and antisocial personality disorder.” Mr. Vega remained at MCFP Springfield for approximately one year. Upon information and belief, the BOP only allows prisoners with Mr. Vega’s security classification to remain at MCFP Springfield for as long as a year of mental health treatment in cases of severe mental illness.
103. In 2006, the BOP transferred Mr. Vega back to ADX, in violation of the BOP’s written procedures, which clearly state that “prisoners currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at … ADX.” BOP Program Statement 5100.08, “Prisoner Security Designation and Custody Clarification,” Chapter 7, p.18.
104. Upon information and belief, Defendant did not send Mr. Vega to the Mental Health Program Coordinator for a thorough assessment of his mental health, as required under BOP regulations. BOP Program Statement 6340.04, “Psychiatric Services,” § 9(a). Such a review would have shown that Mr. Vega needed mental health treatment.
105. Instead, upon Mr. Vega’s return to ADX, Defendant placed Mr. Vega back in the Control Unit, and prevented him from receiving medication or other treatment for his serious mental illness.
106. Upon information and belief, ADX staff members repeatedly chained Mr. Vega unnecessarily, sometimes for periods of ten days or more, to control behavior provoked by Mr. Vega’s untreated mental illness.
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107. Upon information and belief, Mr. Vega told other prisoners that he believed the ADX correctional officers were poisoning his food and spraying things into his vents. Upon information and belief, certain ADX correctional officers frequently taunted and provoked Mr. Vega, and then punished him when he responded.
108. On May 1, 2010, Mr. Vega was found dead in his cell in the Control Unit at ADX. The coroner’s report summarizing Mr. Vega’s autopsy reports that Mr. Vega died as a result of hanging. It also states that information received from the ADX health administrator indicated that Mr. Vega “had a long psychiatric history.”
109. Upon information and belief, Defendant failed to prevent the abuse of Mr. Vega by certain ADX staff members, failed to ensure that Mr. Vega was adequate fed and safely housed, failed to implement adequate suicide prevention programs at ADX, and otherwise failed to address Mr. Vega’s serious, chronic and growing mental illness. As a result, Mr. Vega’s mental deterioration continued, and ultimately resulted in his death.
110. Robert Knott hanged himself at ADX on September 7, 2013. At the time of his death he was 48 years old.
111. Like most of the other ADX prisoners who committed suicide, Mr. Knott had been diagnosed and treated by the BOP for severe mental illness, and therefore should never have been at ADX in the first place.
112. Specifically, public records make clear that at the time of his 1988 conviction for kidnapping, and subsequent life sentence, Mr. Knott had been diagnosed with Schizophrenia. See United States v. Knott, 894 F.2d 1119, 1121 (9th Cir. 1990) (“The parties agree that [Knott’s] schizophrenia is a serious mental disease that satisfies the first prong of [the statutory test for the
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insanity defense.]”). Schizophrenia is a major mental illness that is characterized by serious thought disruptions and often by hallucinations, delusions, and severe paranoia. Schizophrenia patients also often exhibit bizarre behavior.
113. It is clear that the DOJ did not dispute Mr. Knott’s Schizophrenia diagnosis in 1988, and the limited records now available to Plaintiffs suggest that at no time since Mr. Knott entered BOP custody in 1988 has anyone seriously denied the nature or severity of his mental illness. Indeed, an April 19, 2002 psychological report filed in court by the DOJ stated, “Throughout his incarceration in the Federal Bureau of Prisons, Mr. Knott has been diagnosed with schizophrenia and antisocial personality disorder”. Nevertheless, in April 1995 the BOP transferred him to the ADX.
114. Thereafter, excepting only the periods of time when he was hospitalized for mental illness at MCFP Springfield, it appears that Mr. Knott remained at the ADX for the entirety of the 18 1/2 years between his first arrival there in April 1995 and his death in September 2013.
115. The circumstances of Mr. Knott’s symptoms and treatment are detailed in two mental health evaluations filed in the U.S. District Court for the Western District of Missouri in 2002, in connection with a petition by the DOJ to have him civilly committed so he could be involuntarily medicated. In the evaluation submitted with the government’s petition, a BOP doctor noted:
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116. Later, after discussing Knott’s background, including his six prior hospitalizations at Springfield, his history of bizarre, psychotic behavior (particularly his obsessive refusal to wear clothing), and his up and down cycles of psychological functioning as he moved back and forth between prisons and BOP medical facilities, the BOP psychologist concluded in the following terms that Mr. Knott had a “severe psychotic disorder” that at that time “preclude[ed] his ability to function adequately in a regular Bureau of Prisons facility”:
117. After the DOJ sought to civilly commit him, Mr. Knott was appointed counsel, who secured a second opinion from another psychologist. That opinion noted that Mr. Knott had refused to participate in an evaluation, making it impossible for the psychologist to render an independent diagnostic opinion. But the report also describes in detail the then-existing BOP records relating to Mr. Knott, which include references to a pre-incarceration mental health
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hospitalization for symptoms of severe depression and “command hallucinations,” and recount a series of bizarre or otherwise worrisome incidents involving Mr. Knott while in BOP custody:
x In 1992, staff members at USP Marion found him hanging from his cell bars in an effort to protect his body from “white bugs;”
x In 1995 he was transferred from Marion to Springfield following a suicidal gesture; x In August 1996 he was sent from ADX to Springfield after cutting himself; x In 1998 he was again transferred from ADX to Springfield because he was
uncommunicative and refusing medication. A later report by Springfield staff is summarized as saying that upon his arrival at Springfield, he was “withdrawn, evasive, and impulsive.” In the following months, he “refused to maintain proper nutrition, was labile, frequently covered the window in his cell, and engaged in yelling and screaming.” x In 1999 he was again transferred from ADX to Springfield “after command hallucinations to kill himself.” 118. Even after the 2002 Springfield admission during which Mr. Knott was civilly committed and involuntarily medicated (his seventh trip to Springfield for mental problems), the BOP again violated its own policies by sending him back to the ADX. Plaintiffs presently have little information about his condition from that point until early September 2013. But Plaintiffs’ recent interviews of prisoners who lived near Mr. Knott during the last week or so of his life confirm that shortly before his suicide Mr. Knott again went off his medications, again decompensated, again started yelling and screaming, again became incoherent, wrote “Heaven” on the wall of his cell, and finally, during the evening of Saturday, September 7, hanged himself from a sheet attached to his cell bars. 119. In short, Mr. Knott had severe mental illness, never belonged at ADX, and died when and as he did because of the BOP’s patent, inexcusable disregard of his serious medical needs. His illness was obvious to anyone who looked. That he was sent back to the ADX over
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and over and spent years there was in and of itself a violation of BOP policy. And that he died as he did, with the signs and symptoms of psychosis everywhere, can mean only one of two things: either (1) the BOP simply doesn’t care that it has an Eighth Amendment duty to care for ADX prisoners with mental illness; or (2) the BOP is incapable at a fundamental level of diagnosing and treating mental illness in men assigned to ADX. In either case, Knott’s life and death reveal in searing detail the fundamental constitutional problems that this lawsuit aims to correct. That would have been true whenever Knott died. That he died 15 months after this lawsuit was filed, and six months after the Court denied the BOP’s Motion to Dismiss, when the BOP knew that Plaintiffs and the Court were watching, puts an exclamation point on the urgency of the persistent problems at ADX and on the reality that the half-measures instituted by the BOP since the lawsuit was filed are not nearly enough.
(3) At least 14 Separate Pro Se Lawsuits Filed by ADX Prisoners in the Nine Years Prior to this Lawsuit Put Defendant on Notice of the Catastrophic Deficiencies in the ADX Mental Health Care System
120. Since 2003, prisoners at ADX have filed at least 14 separate lawsuits against various BOP officials that sought, in whole or part, treatment for serious mental illnesses. For example, current ADX prisoner Dawane Mallett has alleged in at least four separate lawsuits that he has mental illness and that prisoners with mental illness housed at ADX are deprived of proper treatment. See Mallett v. Davis, No. 11-01567 (D. Colo. 2011) (dismissed for lack of prosecution); Mallett v. Davis, No. 10-00085 (D. Colo. 2010) (two claims were dismissed as repetitive of 09-03013, and the remaining claim was dismissed as an improper claim under § 2241 and for lack of standing); Mallett v. Davis, No. 09-03013 (D. Colo. 2009) (dismissed for failure to exhaust BOP administrative-remedy procedure); Mallett v. Davis, No. 09-01823 (D.
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Colo. 2009) (dismissed for failure to cure deficiencies, in particular to submit a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915).
121. Former ADX prisoner Peter Georgacarakos filed three separate lawsuits raising similar issues, including a claim that ADX’s Control Unit conditions violate the Eighth Amendment because the facility houses prisoners without regard for their psychological health. See Georgacarakos v. Wiley, No. 05-02207 (D. Colo. 2005) (dismissed for failure to pay filing fee); Georgacarakos v. Watts, et al., No. 09-01648 (D. Colo. 2009) (dismissed for failure to file an amended pleading on the Court’s Prisoner Complaint form); see also Georgacarakos v. Wiley, et al., No. 07-01712 (D. Colo. 2007) (claiming that ADX prisoners in isolation are denied the prescription and administration of psychotropic drugs, and that isolation causes such mental illness).
122. In Thirkield v. No Defendants Named, No. 10-02193 (D. Colo. 2010), former ADX prisoner DeAndre Thirkield’s allegations included apparent delusions that he is being subjected to psychological torture of the brain by electronic sources. Upon information and belief, Mr. Thirkield is actively and chronically psychotic and his medical condition is or should be obvious to anyone who spends more than a few minutes with him. Sometime after the initiation of this lawsuit, the BOP transferred Mr. Thirkield to MCFP Springfield.
123. Likewise, in Baxter v. Manspeaker, et al., No. 10-01086 (D. Colo. 2010), ADX prisoner David Baxter (whose legal name is Richie Hill) noted several times that he has mental illness. He also alleged that he was refused a mental health evaluation and repeatedly attempted suicide and self-mutilated. Like Mr. Thirkield, Mr. Baxter, upon information and belief, has severe mental illness. He resided in the ADX SHU for years, and has engaged in horrific self-
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harm, including slashing himself with sharp objects, swallowing razor blades and sharp pieces of metal, and carving a large circular design covering most of the left side of his face, apparently using a staple or other sharp object to gouge out pieces of skin. The BOP moved Mr. Hill to MCFP Springfield in late 2012, and later to the High Security Mental Health Step-Down Unit at USP Atlanta, where for the first time in years he is receiving some mental health care. Whether he will remain in the Mental Health Step-Down Unit at USP Atlanta or be returned to ADX remains to be seen.
124. Former ADX Control Unit resident Raheem Davis filed at least three lawsuits pleading for help with his untreated serious mental illness. See Davis v. Warden Daniel, et al., 10-cv-00395 (D. Colo., filed Feb. 23, 2010); Davis v. United States of America, 11-cv-00429 (D. Colo., filed Feb. 17, 2011); and Davis v. No Defendant Named, 11-cv-02249-LTB (D. Colo., filed Sept. 21, 2011). Mr. Davis has, and for years obviously has had, psychosis. He was housed in the ADX Control Unit for several years. Although BOP policies mandate that Control Unit prisoners meet monthly with a team of institution staff personnel, including a member of the psychology department, upon information and belief, between October 2011 and May 2012 Mr. Davis never left his cell. During that time he did, however, rant, rave, bang on his cell walls, and generally live in squalor. He has since been moved to a BOP residential mental health care unit at which, upon information and belief, he continues to receive constitutionally inadequate care.
125. Current ADX prisoner Mikeal Stine sued a member of the ADX staff in 2009 for, among other things, denying him mental health treatment. See Stine v. Blanke, 09-cv-01527 (D. Colo., filed June 30, 2009).
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126. In 2003, former ADX Control Unit resident Ernest Shaifer sued the BOP and a number of its employees, including members of the medical staff at ADX, for failing to treat his Bipolar Illness. See Brown v. Federal Bureau of Prisons, 03-ES-1648 (D. Colo., filed October 17, 2003). On July 20, 2005, the complaint was dismissed for failure to exhaust administrative remedies.
127. Even though the foregoing 14 lawsuits and, upon information and belief, a number of others, alleged persistent deficiencies in the ADX mental health system, no meaningful changes were made to that system. Instead, each time the BOP was sued, it set out only to defeat the prisoners’ legal claims, generally on procedural grounds. The BOP failed to address and remedy the substantive issues raised by the lawsuits or to respond to the cries for help from its population of charges with mental illness, whose conditions continued to deteriorate as the BOP focused on ways to dismiss their complaints. G. Defendant’s Actions to Date Relating to Claims Raised in This Lawsuit Are
Insufficient to Fully Address Plaintiffs’ Claims of Constitutionally Inadequate Mental Health Care 128. As illustrated by facts set forth in this Second Amended Complaint, and others to be proven at trial, Defendant has long been aware of the systematic failures in the ADX mental health system. Prior to this lawsuit the BOP had done little or nothing to correct those failures. Defendant has shown deliberate indifference to the needs of ADX prisoners who have serious mental illnesses. 129. Since the filing of this lawsuit the BOP has taken some steps to ameliorate its deficient policies and practices concerning mental health treatment of prisoners at ADX. To the extent these new policies are followed more consistently than the BOP’s prior policies, they
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represent positive steps in addressing the constitutional inadequacies documented in this Second Amended Complaint. However, upon information and belief, like the BOP’s old policies, these new policies are not followed consistently and in good faith, making them largely ineffective for the majority of Plaintiffs and class members. Moreover, Defendant has failed to implement, or even draft, all of the necessary policies to ensure that Plaintiffs and subclass members receive constitutionally adequate mental health care. Defendant’s failure to implement all of the necessary policies regarding treatment of mental illness at ADX and ensure that all of its current policies are being followed and carried out in good faith, especially in light of the evidence established through this litigation, contributes to the continued deliberate indifference to the ongoing constitutional violations identified in this case.
(1) Defendant Has Instituted Three New Policies Relating to Some of Plaintiffs’ Claims
130. On May 1, 2014, Defendant issued Program Statement 5310.16, entitled “Treatment of Inmates with Mental Illness” (“Program Statement”). The May 2014 Program Statement describes the “policy, procedures, standards, and guidelines for the delivery of mental health services to prisoners with mental illness” in all BOP facilities, including ADX. The policy outlines procedures for screening and diagnosis of mental illness, enacts a set of treatment “care levels” to harmonize some of the treatment of prisoners diagnosed with mental illness or serious mental illness, excludes from placement at ADX most prisoners diagnosed with a serious mental illness, and revises certain former policies that fundamentally interfered with the delivery of mental health treatment.
131. On October 31, 2014, Defendant issued ADX Institution Supplement FLM 5324.08A, entitled “Suicide Prevention Program.” The Suicide Prevention Program is drafted
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specifically for implementation at ADX and provides policies for assessing the risk of, and preventing, suicide, and self-harm. This institution-specific policy is intended to accompany the BOP’s general “Suicide Prevention Program,” dated March 15, 2007.
132. On November 10, 2014, Defendant issued USP Florence Institution Supplement FLP 5330.11(1), entitled “Secure Steps Towards Awareness Growth and Emotional Strength (STAGES) Program.” The High Security STAGES Program is currently in effect at USP Florence and is expected to provide mental health services and treatment to enrolled prisoners, many of whom were previously housed at ADX.
(2) Defendant’s New Policies Are Insufficient On Their Own to Provide Constitutionally Adequate Mental Health Care to Plaintiffs
133. Without additional policies and guarantees that the policies will be followed, the BOP’s enactment of three new policies and opening of new high security facilities for treatment of prisoners diagnosed with serious mental illness are insufficient to resolve the constitutional violations at issue in this litigation. The BOP also must enact policies relating to the mental health of prisoners at ADX and must be monitored to ensure that, unlike in the past, it actually follows these new policies.
134. The May 2014 Program Statement is a starting point for addressing some of the systemic problems surrounding the BOP’s diagnosis and treatment of mental illness, but ADX is unique and requires additional policies and procedures adapted specifically to the challenges of that facility. The BOP must draft and enact an appropriate institution supplement for ADX that specifically addresses the treatment and care of prisoners with mental illness at ADX. Such a policy would recognize the unique needs of prisoners with mental illness at ADX, and would require, among other things, additional mental health preventative care measures and additional
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mental health programming, including incentive programs, for implementation at ADX to counteract the ill effects of solitary confinement. An ADX-specific policy would also lay out guidelines on appropriate use of force, especially in the context of prisoners with a history of mental illness.
135. Importantly, even a complete set of perfect policies would be insufficient at this juncture to conclude that the BOP is taking seriously the mental health needs of prisoners at ADX. The BOP has a documented history of ignoring its own policies as well as federal regulations relating to screening, diagnosis, and treatment of prisoners in its custody who have mental illness, especially at the ADX. Moreover, the BOP already has failed to fully comply with its newly revised policies in the few months since those policies were implemented.
(3) Defendant Has a Documented History of Ignoring and Violating Its Own Policies Relating to Treatment of Prisoners With Mental Illness and Has Begun to Repeat This Pattern with Its New Policies
136. The BOP has repeatedly violated its own policies relating to mental health treatment in the past, as described in more detail in Section VI.C above. For instance, the psychiatric screening required upon arrival at ADX became a perfunctory checklist task rather than a true screening for mental health issues. Similarly, Defendant routinely ignored its policies that prisoners with mental illness were not to be housed in the Control Unit at ADX. Ongoing management of mental health treatment and monitoring of prisoners with mental illness has also been ignored and is not meaningful at ADX. Finally, until only recently, the BOP repeatedly denied that any prisoners with mental illness were being held at ADX, despite wide recognition of the falsity of such a statement and the mental health treatment concerns plaguing prisoners at ADX.
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137. The BOP also has violated its newly enacted policies and is not consistently and in good faith following those policies. For example, the BOP’s new policies require transferring all but a select few prisoners with serious mental illness from ADX to appropriate inpatient treatment facilities, such as the High Security Mental Health Step-Down Unit at USP Atlanta. To date, the BOP has not transferred all eligible prisoners with serious mental illness out of ADX, despite being aware for months of their diagnoses by BOP personnel of serious mental illness. Moreover, on information and belief, the BOP has undertaken a covert effort to revise and downgrade the diagnosis of certain subclass members to avoid transferring those prisoners out of the ADX. The failure to transfer all eligible prisoners with serious mental illness is a clear violation of the BOP’s own exclusion policy and the attempt to adjust the diagnosis of certain prisoners to avoid transferring them exhibits the BOP’s failure to implement these new policies in good faith.
138. Nor is the BOP following in good faith its new policy regarding treatment of prisoners with serious mental illness. As described above, some eligible prisoners with serious mental illness have not been transferred to different facilities, and Plaintiffs are unable to determine at this time whether such individuals are receiving constitutionally adequate mental health treatment at ADX. Many prisoners have been transferred to other facilities in accordance with the BOP’s new exclusion policy, but upon transfer to the new facility, those prisoners have not received constitutionally adequate treatment for their serious mental illnesses. Finally, on information and belief, the BOP is attempting to evade this lawsuit by simply transferring prisoners with serious mental illness to facilities other than ADX, but is refusing to provide constitutionally adequate mental health treatment at these facilities.
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(4) Defendant’s Decision to Exclude Prisoners With Serious Mental Illness from ADX Does Not Absolve Defendant of the Responsibility to Provide Those Prisoners With Constitutionally Adequate Mental Health Care
139. The BOP’s voluntarily revision of its exclusion policy is intended to result in exclusion from ADX for all but a handful of prisoners if they are diagnosed by the BOP with a serious mental illness. The BOP chose to exclude those prisoners from ADX and transfer them to other BOP facilities, rather than provide constitutionally-adequate mental health treatment to them at ADX.
140. In September 2013, Defendant opened the High Security Mental Health StepDown Unit at USP Atlanta that it intends to utilize to provide mental health treatment in a secure atmosphere. This unit was opened following the initiation of this lawsuit as a facility to which the BOP can send prisoners with serious mental illness who have been housed at ADX. The unit currently houses 20 prisoners, 18 of whom were transferred directly from ADX. Defendant has publically stated that it intends to open a similar mental health treatment facility at USP Lewisburg.
141. The High Security Mental Health Step-Down Unit at USP Atlanta and the planned high security mental health unit at USP Lewisburg were created at least in part to house prisoners with serious mental illness who would have otherwise been confined at ADX but for the policies enacted by the BOP in responses to this lawsuit.
142. Despite its revised policies and creation of these facilities, the BOP has not transferred all prisoners designated for exclusion from ADX. Moreover, those who have been transferred have not all received the constitutionally adequate mental health treatment called for in the policies the BOP created in response to this lawsuit.
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143. The BOP’s exclusionary policy only is an effective and constitutionally adequate method of treating prisoners with serious mental illness if that policy provides for appropriate mental health treatment at the facility to which those prisoners with serious mental illness are transferred. Transferring prisoners with serious mental illness out of ADX and not providing proper treatment at the transferee facility does not resolve the constitutional violations at issue in this litigation and does not absolve the BOP of its Eighth Amendment responsibilities. The BOP must be required to adequately treat Plaintiffs and subclass members regardless of where it elects to place them.
VII. ALLEGATIONS RELATING SPECIFICALLY TO PLAINTIFFS 144. Plaintiffs are currently, or have previously been, incarcerated at ADX and each has a mental illness. Several also have severe functional impairments connected to their mental illnesses, which severely limits their ability to attend to their personal needs. Defendant’s failure to implement adequate programs of mental health screening and treatment has violated their constitutional rights, exacerbated their mental illnesses, and subjected them to harm and injury, and serious risk of future harm. A. Harold Cunningham 145. Harold Cunningham is 45 years old. Before his incarceration, he lived in the Washington, D.C. area. Mr. Cunningham is serving a life sentence plus 380 years and was housed in the Control Unit at ADX from 2001 through 2014. Mr. Cunningham has a serious mental illness that has been variously diagnosed as Paranoid Schizophrenia, Psychotic Disorder Not Otherwise Specified (“NOS”) and Personality Disorder NOS. As detailed below, the BOP
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has demonstrated deliberate indifference to his mental health needs. A photograph of Mr. Cunningham is attached hereto as Exhibit 8.
146. Mr. Cunningham has been incarcerated on and off since he was 11 years old. He was admitted to a juvenile facility at age 16 for assault with a dangerous weapon. Within five months, he attempted suicide. Thereafter, he was transferred to St. Elizabeth’s Hospital, a public psychiatric hospital. At the time, Dr. James Smith diagnosed Mr. Cunningham with Conduct Disorder, Under Socialized Aggressive Needs, and Major Depression.
147. In 1988, Mr. Cunningham, then 17 years old, was arrested for cocaine possession, sentenced to five years, and sent to Maryland’s high security prison in Baltimore. At the time, he refused all psychological and psychiatric treatment because he was told by other prisoners that if he received any mental health treatment or accepted any psychotropic medication, the Department of Corrections could keep him past his release date.
148. Mr. Cunningham was released in 1993. Within months, he and two other men (including one with a serious mental illness who also has been housed at ADX) committed a series of crimes in Washington, D.C. and Maryland. At his trial, Mr. Cunningham chose to represent himself. On July 15, 1996, Mr. Cunningham attacked and stabbed a witness with a homemade knife as she was leaving the witness stand and while in full view of the judge and jury. After the judge denied a mistrial, Mr. Cunningham was convicted and sentenced to a term of life in prison plus 380 years.
149. Mr. Cunningham subsequently was indicted for attempted murder based on the courtroom stabbing. He asserted an insanity defense and was examined by Dr. Carol Kleinman, who was board-certified in psychiatry and a member of the American Board of Psychiatry and
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Neurology. Dr. Kleinman diagnosed Mr. Cunningham with the following psychiatric disorders: Paranoid Schizophrenia, Antisocial Personality Disorder, Borderline Intellectual Functioning, History of Attention Deficit Disorder with Hyperactivity (“ADHD”), along with various forms of drug and alcohol abuse. She opined that Mr. Cunningham was not competent to stand trial and recommended that he be placed on appropriate psychotropic medications.
150. In early 1999, a hearing was conducted to determine whether Mr. Cunningham was competent to stand trial. Dr. Kleinman, however, revised her diagnosis at the hearing, and the Court found that Mr. Cunningham was competent to stand trial. A few months later, the government dismissed all charges against Mr. Cunningham without explanation. He was sent to the USP Marion and placed in long-term isolation.
151. At USP Marion, Dr. Ray Anderson conducted a mental status examination of Mr. Cunningham and concluded that he had Psychotic Disorder NOS and the effects of hallucinogen abuse. Mr. Cunningham was given antidepressants and antipsychotic drug therapy. He claimed he heard voices and saw things that were not there.
152. While imprisoned at USP Marion, Mr. Cunningham was examined about once a month to coordinate psychological counseling with psychiatric treatment. A consulting psychiatrist met with Mr. Cunningham to monitor his medications and to identify potential issues that might aggravate or modify the severity of his symptoms.
153. In May 1999, as part of this process, Dr. James E. Adams conducted a mental status examination of Mr. Cunningham. Dr. Adams diagnosed Mr. Cunningham as having Psychotic Disorder NOS, in full remission, and Personality Disorder NOS. He prescribed the
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antipsychotic medication Risperdal (Rispiridone) and the antidepressant Prozac for Mr. Cunningham.
154. On June 2, 2000, Mr. Cunningham was examined by Dr. Richard Urbanik, chief psychologist at USP Marion. Dr. Urbanik found that “Cunningham’s current mental status, emotional expression, and behavior suggest significant mental health problems.” Dr. Urbanik noted that, based on Mr. Cunningham’s history, existing conditions, and other information available at the time of review, the current potential for Mr. Cunningham to harm others was high. Dr. Urbanik further noted that Mr. Cunningham was refusing all psychotropic medication.
155. In fact, Mr. Cunningham told the staff that he could not digest the medication when it was in liquid form, because it made him sick. Additionally, Mr. Cunningham was concerned that the cups of liquid had materials floating on the surface, for which no explanation was given to him.
156. Dr. Urbanik conducted another examination of Mr. Cunningham on June 30, 2000. Again, Dr. Urbanik concluded that Mr. Cunningham’s current mental status, emotional expression, and behavior suggested significant mental problems, and Mr. Cunningham’s potential to harm others was high. Dr. Urbanik further noted that Mr. Cunningham complained about the form of his medication (liquid), and was noncompliant.
157. Mr. Cunningham was transferred to ADX in December 2001. While at ADX, Mr. Cunningham had multiple unproductive contacts with the mental health staff. His initial psychological assessment at ADX stated that he was a “very antisocial individual who is probably prone to misinterpret the actions and motivations of staff members . . . .” The staff psychologists (Dr. Watterson and Dr. Morrison) concluded that “mental illness . . . can certainly
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not be conclusively ruled out at this point.” Nevertheless, Dr. Morrison suggested that Mr. Cunningham try to go without his medication (Risperdal and Prozac), and promised that if he did so and experienced any problems Dr. Morrison would put him back on better psychotropic medication. Upon information and belief, Dr. Morrison intentionally tricked Mr. Cunningham into giving up his medication so that Mr. Cunningham could be placed in the ADX Control Unit, where policy prohibited administering such medication. After accomplishing that goal Dr. Morrison abandoned Mr. Cunningham, who from December 2001 until at least 2013 was denied any form of psychiatric medication for his mental illness.
158. Without his medications, Mr. Cunningham’s behavior predictably worsened over the next several years. Mr. Cunningham was cited for, among other things, refusing to leave his cell, refusing to submit to restraints, possession of weapons, and assault on corrections officers. Mr. Cunningham was held in an isolation cell in the Control Unit from 2002 to 2007. During this time, he was assaulted by corrections officers and frequently shackled to his bed, sometimes for days or weeks at a time.
159. Mr. Cunningham received no significant mental health treatment at ADX, even though he requested such treatment at least eight times.
160. On March 23, 2004, Mr. Cunningham filed a Central Office Administrative Remedy Appeal for a request for psychiatric treatment. On April 30, 2004, the Central Office responded that an examination via telepsychiatry indicated no mental illness. For this putative psychiatric evaluation, Mr. Cunningham was placed in a room, handcuffed from behind with shackles on his legs, and surrounded by corrections officers. A psychiatrist from MCFP Springfield, viewing him through a make-shift video screen, asked Mr. Cunningham questions
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about his mental health issues, as if the answers received in such an environment were open and adequate to gauge a psychological or psychiatric problem. On June 15, 2004, Mr. Cunningham filed a Central Office Administrative Remedy Appeal for, among other things, denial of psychiatric treatment. His appeal was denied.
161. On August 10, 2004, Mr. Cunningham filed another Central Office Administrative Remedy Appeal for being denied mental health medication. Mr. Cunningham specifically requested an investigation into why he was taken off Risperdal and Prozac. In his appeal, Cunningham wrote “I am in pain everyday that makes me act out in uncontrollable [sic] ways . . . . Records show that when I’m taking my medication I can function without pain or suffering or incident.” In response, the BOP argued, among other things, that “[i]t is evident you have received prompt, professional medical care consistent with reasonable community standards and Bureau of Prisons’ policy.” Mr. Cunningham’s appeal was denied yet again.
162. The extent of Mr. Cunningham’s treatment for his mental illness during his first 11 years at ADX consisted of therapy classes on an educational channel on television, and two workbooks: “Breaking Barriers” and “Cage Your Rage.” In 2013 and 2014, he received minimal mental health interventions, and a prescription for psychotropic medication. Even then, his mental health care remained constitutionally deficient.
163. He remained at ADX until the spring of 2014, when BOP transferred him to the “Challenge Program” at USP Hazleton in West Virginia. Since that time, he has not been given access to a psychiatrist, has not received a psychological evaluation, and his mental health care has consisted of involvement in approximately four group therapy sessions that, while helpful, were wholly inadequate to meet his needs or constitutional standards. He has requested
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additional psychological services repeatedly, but those requests have been denied. As a result, he continues to have serious mental illness, and remains essentially untreated. B. Percy Barron
164. Percy Barron is 46 years old. He has been housed at ADX since 2003 and is serving a life sentence. Before his incarceration he was a resident of Washington, D.C. A photograph of Mr. Barron is attached hereto as Exhibit 9.
165. Mr. Barron has mental illness and may have serious mental illness. At various times, he has been diagnosed with Major Depression, Depressive Disorder Not Otherwise Specified, Adjustment Disorder, Anti-Social Personality Disorder, Alcohol Use Disorder, Cannabis Use Disorder, and Phencyclidine Use Disorder. He also has a history of self-injury and has attempted suicide at least four times. At least one psychiatrist who evaluated him in 2014 concluded that he meets all criteria for a Major Depression diagnosis and is at risk for suicide. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs.
166. In August 2014, the BOP diagnosed him with recurrent Adjustment Disorder with Depressed Mood and assigned him care level CARE2-MH. Accordingly, the BOP, at that time, determined that Mr. Barron requires routine outpatient mental health treatment and/or brief, crisis-oriented mental health treatment of significant intensity, e.g. placement on suicide watch or behavioral observation status.
167. Mr. Barron began to use alcohol, marijuana, cocaine, and phencyclidine (“PCP”) as a teenager. As a result of his cocaine and PCP use, he developed severe paranoia. He later participated in a 60 day residential drug treatment program, though he relapsed on PCP shortly after being discharged. He was first jailed at age 16 for possession of PCP.
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168. In 1993, Mr. Barron was arrested for participating in a series of violent robberies. While jailed pending trial, he attempted suicide by hanging, and set his cell on fire. He reported experiencing disturbing auditory hallucinations and depression while withdrawing from PCP. Mr. Barron was subsequently transferred from the jail to St. Elizabeth’s Hospital, a public psychiatric facility. While at St. Elizabeth’s, Mr. Barron was prescribed a regimen of antipsychotic and antidepressant medication for a presumed psychotic depression. His psychotropic medications were continued for some time following his return to jail.
169. The criminal case against Mr. Barron went to trial in 1996. Prior to his trial, one evaluator determined that Mr. Barron was incompetent to stand trial, but a second found him competent to proceed. In July 1996, Mr. Barron was convicted of various offenses, including armed robbery, felony murder, and assault with intent to murder. In February 1997, he was sentenced to life in prison and incarcerated at USP Terre Haute.
170. In 2000, Mr. Barron was transferred to USP Leavenworth. During his incarceration there, he was diagnosed with Keratoconus (i.e., an abnormally shaped cornea that causes visual distortions) of his left eye. He received a corneal transplant in 2002 at MCFP Springfield.
171. In 2003, Mr. Barron was accused of assaulting a corrections officer at USP Leavenworth and was transferred to ADX. After arriving at ADX, he attempted to hang himself in his cell, but was cut down before losing consciousness and placed on suicide watch.
172. During his incarceration at ADX, Mr. Barron has experienced a number of ongoing health concerns that have contributed to and exacerbated his psychological distress. Most significantly, complications following Mr. Barron’s eye surgery left him with chronic pain
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in his left eye from retained sutures. Mr. Barron’s medical records detail numerous written requests to staff, administrative remedy documents, and advocacy letters from attorneys and the American Civil Liberties Union written over several years, all addressing his eye pain. One year after his corneal transplant, two loose sutures were removed from Mr. Barron’s eye. On March 24, 2004, eleven additional sutures were removed from his eye. In December 2004, a contract ophthalmologist examined Mr. Barron and recommended that the three remaining sutures be removed because he remained in pain. The sutures were not removed as recommended, however, and Mr. Barron continued to request medical assistance for significant pain. His pain was not addressed other than a recommendation for taking nonsteroidal anti-inflammatory drugs, despite Mr. Barron’s documented renal failure. In 2006, distressed about his lack of treatment from Health Services, Mr. Barron made another hanging attempt in front of staff. He was prescribed the antidepressant Celexa.
173. Mr. Barron’s interactions with mental health staff at ADX have been unsatisfactory. In January 2010, while entering into his eighth year of experiencing “stabbing pain” in his left eye, Mr. Barron was seen by a staff psychologist for “mental distress and physical suffering.” The psychologist “yielded the decision that there was no need (for Mr. Barron) to see a psychiatrist since his stress was situational in nature and he did not have symptoms warranting medication.” In 2011, Mr. Barron’s Celexa was abruptly discontinued because he failed to sign an “informed consent” document to continue the antidepressant while housed in the SHU.
174. Despite contending with multiple medical problems and associated psychological distress, Mr. Barron maintained clear conduct for an extended period and was approved for
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placement in the ADX Step-Down Program in 2008, the first of his three step-down placements to date. His first step-down placement ended after about a week when, after a fight between other prisoners, the BOP removed Mr. Barron from the program. In approximately 2011, he returned to the Step-Down Program where he maintained clear conduct for several years. During this period, however, Mr. Barron continued to struggle with chronic mental illness.
175. After submitting multiple requests for mental health assistance, Mr. Barron was psychiatrically evaluated on January 11, 2012. He reported that he had been symptomatic since August 2011 and that his medical concerns, inability to have contact with his family members, and commissary restrictions were causing him to be depressed. He disclosed that he had been prescribed Sinequan (Doxepin) at the Washington, D.C. jail. The evaluating psychiatrist perceived Mr. Barron to have “low frustration tolerance and many situational stressors.” He reported that Mr. Barron “does not appear to have a major depression” and prescribed a low dose of Zoloft.
176. Later that month, Mr. Barron engaged in hunger strikes in protest of his removal from the Step-Down Program. On March 28, 2012, he was seen briefly by a psychiatrist to continue his Zoloft at the same dosage. On April 4, 2012, it was noted that Mr. Barron continued to contend with multiple issues related to his incarceration “and surroundings that cause him to be depressed.” That same day, Mr. Barron wrote a letter to Congresswoman Diane DeGette, asking her to help him get needed medical care. Mr. Barron finally received the surgical correction he required for his left eye on October 30, 2012, ten years after his initial transplant surgery.
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177. On November 13, 2012, Mr. Barron requested to speak with a psychiatrist. BOP records noted that because “his concerns are not in any way emergent and as there is no psychiatrist present for (the Federal Correctional Center) this may take a considerable time period.”
178. In January 2013, while participating in the third and final phase of the Step-Down Program, Mr. Barron learned from the prison Chaplain that his mother had passed away. According to Mr. Barron, because he had already lost his grandmother and father, this news was “so hard on me. I ached inside. I got more depressed.” A few days later, Mr. Barron was observed in his cell masturbating. As a result, he received an incident report and was again removed from the Step-Down Program. He described this as “the biggest blow. I was almost through the program.”
179. On February 10, 2013, he was placed in the SHU. On February 22, 2013, Mr. Barron became acutely suicidal. At approximately 4:00 PM, he alerted a corrections officer that he was suicidal, but was ignored. After waiting for at least three hours for mental health assistance, Mr. Barron described feeling hopeless and ingested all of the medication in his possession, including approximately 100 tablets of Zoloft, medication for hypertension and high cholesterol, and other over-the-counter tablets. Mr. Barron was then transported to a local emergency room. He later was discharged after several hours of monitoring and intravenous fluids delivery, with paperwork that instructed him to “Please avoid this type of behavior in the future.”
180. Following his return to ADX, Mr. Barron was placed in a dry cell (i.e., a cell without a toilet or other plumbing). During a Suicide Risk Assessment, he continued to express
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suicidal ideation, which he indicated had increased following his mother’s death. He was despondent over the fact that some of his property, including photographs of his mother, had not been returned to him. The evaluator assessed Mr. Barron at “medium” risk for suicide and noted that he had engaged in a “potentially lethal suicide attempt with no obvious secondary gain.” Because he also had recently swallowed a razor, “the diagnosis of Depressive Disorder Not Otherwise Specified was offered as a rule out diagnosis.”
181. On February 27, 2013, Mr. Barron was issued a disciplinary incident report for his suicide attempt. This report was eventually expunged after his attorney contacted the Warden.
182. In March 2013, Mr. Barron engaged in another hunger strike because he had not received information from a nephrology consultation. He also swallowed another razor blade. On March 30, 2013, he was seen by a psychologist. The psychologist described Mr. Barron’s mental status as normal, even though he was observed to be loud and anxious, reporting stress, insomnia, anguish, sadness, and a continuing preoccupation with suicide. The psychologist determined these symptoms were related to situational stressors and documented that Mr. Barron did not meet criteria for Major Depression or Depressive Disorder.
183. On May 10, 2013, October 29, 2013, and again in April 2014, Mr. Barron requested telepsychiatry evaluations. No telepsychiatry appointment was scheduled.
184. On August 17, 2014, Drs. Melissa Klein and Sally Johnson, experts designated by the BOP, evaluated Mr. Barron. Mr. Barron remained on Zoloft but had not seen a psychiatrist for over one year. During his evaluation, Mr. Barron described the antidepressant as partially helpful, but reported continuing feelings of depression. Drs. Klein and Johnson diagnosed Mr. Barron with an Adjustment Disorder with Depressed Mood, Recurrent, which “has occurred
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multiple times.” They opined that Mr. Barron’s condition did not rise to the level of serious mental illness and assigned him care level CARE2-MH, which could be provided within the confines of ADX. This diagnosis ignores the applicable diagnostic criteria and is an apparent effort to minimize Mr. Barron’s chronic Major Depression.
185. By October 2014, Health Services declared that Mr. Barron’s psychiatric problems had “resolved.” Nevertheless, his symptoms of depression persist, as does the BOP’s neglect of his mental health care needs. In particular, despite his continuing prescription for antidepressants, he rarely is able to consult with a psychiatrist.
186. Mr. Barron has mental illness and may have serious mental illness. The conditions of his confinement at ADX have caused or contributed to a wide range of psychiatric conditions that, unless treated, will lead to further deterioration, and may result in suicide. Although the BOP has provided him with some mental health services as a result of this lawsuit, his care remains constitutionally deficient, and his condition is, as a result, deteriorating. The BOP’s continued neglect of Mr. Barron’s mental health needs violates BOP policy and the Eighth Amendment. C. Alphonso Blake
187. Alphonso Blake is 37 years old. He has been housed at ADX since February 2011. Before his incarceration, he was a resident of Washington, D.C. His current BOP release date is February 21, 2029. A photograph of Mr. Blake is attached hereto as Exhibit 10.
188. Mr. Blake has mental illness and may have serious mental illness. At various times, Mr. Blake has been diagnosed with various mental disorders, including Mood Disorder, Antisocial Personality Disorder, Anxiety Disorder, and Adult Antisocial Behavior. He has
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engaged in self-injury and has been actively homicidal and suicidal, both before and after arriving at ADX. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs.
189. After Mr. Blake’s parents divorced, he lived with his mother and began to “act out.” He was also severely beaten by a close relative on three separate occasions, and dropped out of school in the 11th grade.
190. In December 2000, Mr. Blake was found guilty of second-degree murder, and was sentenced to 30 years in prison. Mr. Blake began his sentence at USP Pollock and attempted suicide by hanging while confined there. On November 6, 2002, while housed in the SHU at USP Pollock, Mr. Blake requested to be restarted on the antidepressant Sinequan, which had helped him in the past, and a BOP clinician agreed.
191. In October 2002, Mr. Blake was transferred from USP Pollock to USP Beaumont, which at the time was widely known as “Bloody Beaumont” because of frequent inmate assaults and murders. On December 28, 2002, Mr. Blake ingested a large quantity of Sinequan and had a Generalized Tonic-Clonic Seizure. Thereafter, he was diagnosed with Anxiety Disorder.
192. At various times between August 4, 2003 and July 2006, while incarcerated at USP Beaumont, Mr. Blake reported experiencing anxiety, depression, paranoia, insomnia, suicidal thoughts and auditory hallucinations. He was diagnosed with Generalized Anxiety and Anxiety Disorder. Mr. Blake was treated with either Sinequan, Risperdal, or both, except for a period beginning in August 2004 when, inexplicably, he was determined to have no “Axis I” disorder (i.e. a principal disorder that needs immediate attention), and his treatment plan was terminated. By October 2004, Mr. Blake was again receiving Sinequan but not Risperdal.
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193. During his incarceration at Beaumont, Mr. Blake was placed on suicide watch on several occasions. In addition to the incident previously described, he attempted to commit suicide by hanging twice in the month of April 2004.
194. Mr. Blake was transferred to USP Florence at the end of July 2006. On July 21, 2006, while at the Oklahoma Federal Transfer Center, Mr. Blake’s “long history of mood disorder with previous suicide attempt” was noted. He reported auditory hallucinations and feeling depressed, and was placed on suicide watch. Mr. Blake was then diagnosed with Mood Disorder NOS, and further evaluation was suggested to confirm or rule out a diagnosis of Schizoaffective Disorder, Depressive Type. A few days later, his request to see a psychologist was rejected. Thereafter, he made superficial cuts on his arm with a razor and threatened to slash his cellmate.
195. When Mr. Blake arrived at USP Florence, he was screened and deemed appropriate for the general population with no mental health treatment. Two months later, he was placed in the SHU. In February 2007, Mr. Blake was placed on suicide watch after he reported that he “didn’t feel right and wanted to hurt himself.” Following the suicide watch, he was placed on a razor restriction, and later that month, was diagnosed with malingering and Personality Disorder NOS.
196. Mr. Blake was transferred to USP Hazelton at the end of October 2007. While incarcerated there, he continued to report depression, insomnia, poor appetite and auditory hallucinations, and was reported as having suicidal thoughts on several occasions. In January 2008, despite these symptoms, an evaluator noted that “he shows no psychotic signs whatsoever” and in May 2008 was described as having “made a reasonable adjustment to being in lockdown.”
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197. On November 4, 2008, Mr. Blake was transferred to USP Lee. He continued to complain of depression, loss of appetite, inability to sleep, tension, and frustration. During his incarceration at USP Lee, Mr. Blake was told that unless his medication was discontinued he would have to be transferred again, because certain issues could not be treated at USP Lee. A subsequent plan was made to discontinue his medication “based on inmate’s self-report of no psychosis and no observed psychosis.” However, on November 10, 2008, his BOP clinician prescribed Wellbutrin in an “effort to manage his stress and anxiety, and with the goal of reducing” self-injury.
198. On Wellbutrin alone, Mr. Blake reported sleeping better but staff noted that he started destroying property and accruing fines for his behavior. Later in 2008, Mr. Blake was charged with assault with intent to commit a felony and possessing contraband in prison. The indictment was later dismissed. On December 23, 2008, Mr. Blake voiced suspicion about a change in the color of his Wellbutrin tablets, which he refused to take. His Wellbutrin was then discontinued.
199. In April 2009, Mr. Blake was transferred to the Special Management Unit at USP Lewisburg. In May 2009, when he was psychiatrically evaluated, the evaluator wrote, “he malingers mental illness and makes suicidal gestures of low lethality for secondary gain.” Mr. Blake was diagnosed with Antisocial Personality Disorder but viewed as a low risk for suicide. In December 2009, Mr. Blake requested medication again for depression. He again reported poor appetite and experiencing auditory hallucinations. On January 14, 2010, he was seen by a doctor via telepsychiatry. The doctor noted that Mr. Blake had “neurovegetative” symptoms commonly associated with Major Depression.
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200. On April 7, 2010, Kim Turner, PhD, at USP Lewisburg, conducted a psychological evaluation on Mr. Blake to determine whether or not he was a candidate for placement in the ADX Control Unit. She noted that he had received 175 incident reports for various prison infractions including fighting, refusing to obey an order, interfering with staff, being possession of a dangerous weapon, destroying property, and insolence. She also noted that Mr. Blake had had 14 suicide risk assessments and numerous suicide watches for cutting, overdosing, and making hanging attempts, all of which she described as “a social strategy to garner a perceived advantage.” She diagnosed Adult Antisocial Behavior and found “nothing to preclude his Control Unit Placement.”
201. In January 31, 2011, while Mr. Blake was on holdover at FTC Oklahoma and on route to ADX, his mental health was again evaluated. While Mr. Blake reported feeling “stressed, depressed, hopeless, and with auditory hallucinations,” and requested Risperdal, his mental status was described as normal.
202. During his intake screening interview at ADX in February 2012, Mr. Blake was diagnosed to have an “unspecified mood disorder.” Mr. Blake’s limited mental health treatment at ADX has not been effective in addressing his mental illness.
203. Mr. Blake filed an administrative remedy complaint against an ADX psychologist, whom he said he did not trust because she shared confidential information about him with another prisoner and “tries to play me against other prisoners.” Since filing that complaint, he has been denied further treatment. In August 2014, Mr. Blake attempted to hang himself in the ADX SHU after his request to speak with a psychologist was refused.
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204. Between October 2013 and November 2014, Mr. Blake reports having been on suicide watch at least ten times. Mr. Blake is currently prescribed Risperdal.
205. On August 17, 2014, Mr. Blake was evaluated by two BOP evaluators. During the evaluation, he stated that he felt homicidal toward ADX staff because they put him on a suicide watch in an unsanitary cell. The BOP diagnosed Mr. Blake with Antisocial Personality Disorder and assigned him care level CARE2-MH, determining that Mr. Blake requires outpatient care for mental health concerns. BOP also suggested that Mr. Blake would benefit from psychiatry consultation regarding his medication concerns. Despite that recommendation he has not received any outpatient care in the more than nine months since this evaluation.
206. In sum, Mr. Blake has mental illness and may have serious mental illness. The conditions of his confinement at ADX have caused or contributed to a wide range of psychiatric conditions that, unless treated, will lead to further deterioration and may lead to suicide. BOP’s continued neglect of Mr. Blake’s mental health needs violates BOP policy and the Eighth Amendment. D. Jabbar Currence
207. Jabbar Currence is 34 years old. He has been housed at ADX since January 2008. Before his incarceration he was a resident of Richmond, Virginia. His current BOP release date is December 25, 2018. A photograph of Mr. Currence is attached hereto as Exhibit 11. 1
208. Mr. Currence has mental illness and may have serious mental illness. At various times, he has been diagnosed with Borderline Personality Disorder, Post-Traumatic Stress
1 Mr. Currence’s preferred spelling of his first name is used herein. BOP records may spell it “Jabar”.
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Disorder, and Antisocial Personality Disorder. At least one psychiatrist who evaluated him in 2014 suggested further analysis to confirm or rule out a diagnosis of Bipolar Disorder. He also has a history of suicidal gestures and self-mutilation. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs.
209. In August 2014, the BOP diagnosed him with Antisocial Personality Disorder and Borderline Personality Disorder and assigned him care level CARE2-MH. Accordingly, the BOP, at that time, determined that Mr. Currence requires routine outpatient mental health care and/or brief, crisis-oriented mental health care of significant intensity, e.g. placement on suicide watch or behavioral observation status.
210. Mr. Currence was born in Gastonia, North Carolina. He spent his early childhood in an environment of drug use, prostitution, and routine violence. At the age of six years, his parents lost custody of their children due to neglect.
211. When Mr. Currence was seven years old, he and his brother were adopted by a distant cousin who lived in Richmond, Virginia. His adoptive family was dysfunctional in every way. Harsh discipline was routine, including frequent corporal punishments. Within a year of his adoption and for several years thereafter, Mr. Currence was severely abused by several of his adoptive relatives, who later repeatedly threatened to kill him.
212. Mr. Currence began acting out at the age of eight or nine and was first arrested at age ten. He was later sent to a psychiatric treatment center for children for eight months.
213. Mr. Currence was diagnosed with and treated for ADHD in childhood. He was later court-ordered to receive treatment at the Virginia Treatment Center for Children (“VTCC”). At that time, he was estimated to have a “low average intelligence” and possibly some “mild,
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organic” (i.e. brain injury/affliction) problems. He received Ritalin for ADHD and was also diagnosed with Dysthymia and Oppositional Defiant Disorder. While Mr. Currence did not evidence psychosis at this treatment center, he was characterized as having a “repressed affect” and as “a very serious and chronically emotionally disturbed child.” Mr. Currence also was diagnosed with depression as a child and made his first suicide attempt at age 13. Prior to incarceration, he was prescribed Haldol and Prozac in adolescence.
214. After being discharged from VTCC, Mr. Currence was referred to outpatient treatment. He remained in treatment until 1993 when he encountered additional legal problems and was again admitted to VTCC. While there, he was diagnosed with “mild depression associated with being abandoned by his natural parents.” He reportedly was combative and uncooperative, and his coping was described as “avoidance” and “denial of feelings.” He was diagnosed with ADHD and a Conduct Disorder.
215. Mr. Currence was hospitalized again in 1996 at the Norfolk Psychiatric Institute in Virginia. He was then hospitalized in 1997 at the Cumberland Hospital for Children due to aggressive behavior. He was admitted to a residential treatment program in 1997 at the Charter Westbrook Hospital, but later discharged due to aggressive behavior.
216. Mr. Currence’s incarceration began in 2000, at age 19, after a conviction for conspiracy to possess crack cocaine with intent to distribute. He was sentenced to 13 years in federal prison. Mr. Currence began his sentence in a medium security facility, but in July 2002 was transferred to USP Beaumont.
217. In 2003, Mr. Currence was sent to MCFP Springfield, a BOP medical facility, and was treated with anti-anxiety medications. In February 2003, he bit a correctional officer on the
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shoulder while being escorted to his cell. During his ensuing prosecution for assaulting a federal employee, his mental competence was questioned, but a BOP psychiatric evaluation deemed him competent to stand trial. He pled guilty and received a five year and three month sentence to run consecutively with his previous sentence.
218. On March 22, 2007 while housed in the SHU at USP Atlanta, Mr. Currence reported suicidal ideation. His history of previous suicide attempts was noted as was his history of psychiatric treatment. Mr. Currence was prescribed Depakote and Risperdal with a provisional diagnosis of Bipolar Disorder. A week later, when Mr. Currence was evaluated for injuries sustained in a fight with his cellmate, he was prescribed the same medication for a presumed diagnosis of Schizoaffective Disorder.
219. On January 4, 2008, Mr. Currence was a holdover in the FTC Oklahoma City on his way to ADX. A suicide risk assessment was requested during the holdover due to a prior overdose. During that evaluation, his extensive history of disruptive behavior and self harm was noted, as was his medication: Carbamazipine. This medication was discontinued prior to his ADX transfer with no documented rationale.
220. On January 24, 2008, Mr. Currence had an intake screening at ADX. The screening noted his psychiatric commitments and diagnoses during childhood, as well as his prior prescriptions for Haldol and Risperdal.
221. Since arriving at the ADX, Mr. Currence has had multiple unproductive contacts with the mental health staff. In February 2008, shortly after his transfer to ADX, Mr. Currence requested psychological programming materials and assistance with anger management. He was provided the book, “Cage Your Rage.” In September 2008, Mr. Currence displayed symptoms of
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poor concentration, poor attention, anxiety, and insomnia and requested a psychiatric evaluation for depression. The evaluator concluded that he did not meet criteria for Major Depression and encouraged Mr. Currence to use other coping skills to manage his symptoms. On December 24, 2010, Mr. Currence requested to see a mental health professional and also asked for reading material (“self help handouts”) to address his inability to relax. Two days later, he was evaluated by a psychologist for suicide risk and was found with a noose.
222. The BOP has repeatedly disciplined Mr. Currence for conduct that is a manifestation of his mental illness, aggravated by long periods of solitary confinement. For example, on January 8, 2011, Mr. Currence attempted to hang himself. The following day he continued to express suicidal ideation and on January 10, 2011 he placed a noose around his neck. He was subsequently placed in four-point restraints.
223. On September 19, 2012, Mr. Currence was placed on suicide watch after a hanging attempt. He said “I’m at a breaking point” and requested Cognitive Behavioral Therapy (“CBT”). On September 24, 2012 he was visited by a female psychologist while in indoor recreation. The psychologist focused her discussion on his history of acting out, after which Mr. Currence made a lewd remark toward her. He was again placed on suicide watch on October 26, 2012 when he was in possession of a razor and threatening to cut himself. After being placed in a dirty cell the next day, he again expressed suicidal ideation. In November 2012, he requested CBT again and on November 15, 2012, he was again assessed for suicide after expressing dangerous ideation and complaining about the smell and noise emanating from other prisoners nearby. He was intermittently evaluated for suicide risk for the remainder of November 2012 and ultimately diagnosed with both Borderline and Antisocial Personality Disorder traits.
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224. On January 4, 2013 Mr. Currence met with an ADX psychologist who reviewed a dated psychological evaluation of him. The evaluation provisionally diagnosed him with Post Traumatic Stress Disorder (“PTSD”) and Major Depression, with Anxiety Disorder, Malingering, and Intermittent Explosive Disorder listed as diagnoses to be ruled out after further testing.
225. In March 2013, Mr. Currence broke a sprinkler, made a noose out of sheets, and threatened suicide. This occurred at a time he had not heard from his family and his requests for therapy to specifically address his problems were denied: he was told that he would need to master better coping skills before delving into his past. A few days after this conversation, he threatened to “slice” his jugular vein and then swallowed a razor. An evaluating psychologist noted, “His behavior has worsened over time” and planned to create a formal behavior management plan for Mr. Currence.
226. On April 5, 2013 he had a lengthy individual therapy session. In a telepsychiatry interview on April 17, 2013, Mr. Currence shared that he had experienced insomnia for one year, was having mood swings, and had been prescribed Haldol in the past. The psychiatrist prescribed Prozac for a depressive disorder. On April 25, 2013, Mr. Currence was presented with the Behavioral Management Plan that had been developed for him. He rejected it and expressed anger that the only diagnosis mentioned on the plan was Antisocial Personality Disorder. A few days later, a note by psychology staff acknowledged that his threats of suicide had increased in the last year.
227. In May 2013 Mr. Currence was depressed, irritable, making vague threats to commit suicide after having had no recent contact with family members, and sensed that the
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“walls are closing in on him.” That same month he ingested ten aspirin tablets. He was then provided with some drawing materials in his cell to help him cope.
228. On June 6, 2013, Mr. Currence received a one hour counseling session during which he expressed a need for treatment for his behavioral issues. However, the psychologist meeting with him thought his request was for secondary gain and discontinued his treatment altogether alleging that he was “unwilling and unmotivated” for treatment, recommending that his behavioral management be custodial (i.e., the use of progressive restraints and chemical munitions would address his issues). He continued to request specialized therapy, and expressed frustration with his lack of contact with mental health professionals.
229. In July 2013 Mr. Currence received 15 credit hours for completing “Functional Thinking – Taking Charge of Your Life” reading material.
230. In September 2013, Mr. Currence was housed in the cell next to Robert Knott, a prisoner with Schizophrenia who hanged himself. Mr. Currence was profoundly affected by the suicide resulting from Mr. Knott’s mental illness.
231. In October 2013, Kristin Moody, PsyD interviewed Mr. Currence on three occasions and reviewed his BEMR2 and PDS3 records. She concluded that he met criteria for Antisocial Personality Disorder and Borderline Personality Disorder. She also recommended instruction in interpersonal boundaries, stress tolerance, CBT, and group therapy. However when the recommendations were presented to Mr. Currence he complained that the plan was “too superficial” and became disruptive and threatening, leading to the termination of his individual
2 An acronym for “Bureau Electronic Medical Record.” 3 An acronym for “Psychology Data Services.”
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therapy, which was then assessed to be “contraindicated.” He continued to engage in parasuicidal and disruptive behavior in the months of October and November 2013. He reported “stress” and “depression” and made several suicide gestures. Mr. Currence filed a grievance alleging that the ADX staff were “playing games with me. I have serious mental issues that need to be worked on.” He received at least three incident reports during this time.
232. In December 2013 Mr. Currence threw feces and threatened to hang himself. He requested to have his Prozac changed to a different medication to “keep a cap” on his emotions. He continued on Risperdal. He was diagnosed with Depressive Disorder, NOS.
233. In January 2014, Mr. Currence was upset that the timing of his Risperdal medication changed. He also received a Buspar trial at that time for his complaints of anxiety. In February 2014 Mr. Currence refused his Risperdal because of the dosing schedule. In March 2014 he requested to have Risperdal restarted because he was depressed and anxious and reported to experience command auditory hallucinations to kill himself or others.
234. Mr. Currence was in and out of the SHU in spring 2014, and force, including oleoresin capsicum gas (pepper spray), was used to subdue him into the SHU. With ongoing suicidal and parasuicidal behavior, Mr. Currence was frequently placed in a dry cell rather than rigid restraints for behavioral management purposes, where he had no access to property such as reading materials or television.
235. On April 2, 2014 Mr. Currence was again assigned the diagnosis Depressive Disorder NOS. He reported severe anxiety and “erratic” mood and low energy to the evaluator. His suicide threats continued.
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236. In June 4, 2014 Mr. Currence was evaluated by a psychiatrist new to ADX, Kate Erwin, MD. She diagnosed him with Anxiety Disorder, NOS and Antisocial Personality Disorder. She prescribed the anti-anxiety drug Buspar.
237. In July 2014 Mr. Currence continued to exhibit poor distress tolerance as evidenced by frequent threats of suicide, breaking property, and swallowing objects. He was provided with a written anger management instructional module. The psychology staff observed that in recent years, the number of Suicide Risk Assessments for Mr. Currence had increased considerably (in excess of 70 events, 45 at ADX alone), but interpreted this behavior as manipulative with the goal of controlling the conditions of his environment.
238. Dr. Hanna Ong, an expert designated by the BOP, evaluated Mr. Currence on August 21, 2014 with two additional BOP designated experts observing. Mr. Currence provided his psychosocial history and expressed concern about being released from prison without having been treated for his disorder. He also told Dr. Ong that he struggled with anger management and poor impulse control, experienced both depressed and (short-lived) euphoric moods, and chronic suicidal and sometimes homicidal ideation. He told Dr. Ong that his depression “gets severe enough at times that if he had a gun he would kill himself” and that his illness had gotten “worse in the SHU.” Dr. Ong opined that he met criteria for both Antisocial Personality Disorder and Borderline Personality Disorder, conditions that she opined did not rise to the level of serious mental illness. She recommended care level CARE2-MH, which could be provided within the confines of ADX.
239. Mr. Currence has mental illness and may have serious mental illness. The conditions of his confinement at ADX have caused or contributed to a wide range of psychiatric
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conditions that, unless treated, will lead to further deterioration, and the potential for suicide. The BOP’s continued neglect of Mr. Currence’s mental health needs violates BOP policy and the Eighth Amendment. E. Carlton Dunbar
240. Carlton Dunbar is 31 years old. Before his incarceration, he lived in Arlington, Virginia. He was imprisoned at ADX for more than five years and is currently imprisoned at USP Florence, serving a sentence of over 18 years for various offenses. His current BOP release date is July 21, 2021. Mr. Dunbar currently has a serious mental illness, which has been variously diagnosed as Schizophrenia, Bipolar Disorder, and Major Depressive Disorder, Recurrent with Paranoid Features. A photograph of Mr. Dunbar is attached hereto as Exhibit 12. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs.
241. Mr. Dunbar was born in Arlington, Virginia. His childhood was marked with depression and mental illness. At the age of four, Mr. Dunbar received his first outpatient mental health treatment for depression and hyperactivity. In April 1996, Mr. Dunbar was committed to a mental hospital in Virginia. His records reflect, as follows, the reason for the commitment:
Carlton is a 12-year-old male admitted for his first psychiatric hospitalization for acute suicidal ideation with plan and gestures. He is depressed and wants to die. He has threatened to kill himself several times over the past three weeks. He tried to jump out of a window at school two times, he put a plastic bag over his head in the school nurse’s office, and he put a plastic strap around his neck. He has been asking his grandmother if he died would he go to heaven. He has been particularly depressed over the past three months. At school, he put a boy’s belt around his neck. During his hospitalization he told the doctors he heard voices arguing in his head. The attending psychiatrist diagnosed Mr. Dunbar with Major Depression. Sometime after his discharge, he was
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removed from public school and placed in an alternative therapeutic school for seriously disturbed children.
242. Depression and mental instability carried over into his adulthood. In 2003, Mr. Dunbar was detained in Virginia pending prosecution in Washington D.C. He spent much of his pretrial incarceration in a locked psychiatric unit. While there, a doctor with the Virginia Department of Corrections diagnosed Mr. Dunbar with Major Depression and gave him a treatment plan that included counseling and a heavy regimen of psychotropic drugs that included Depakote, Risperdal, Paxil, Haldol, Ativan, Trazodone, and Buspar. In addition to Major Depression, Mr. Dunbar also complained of auditory hallucinations and sleeplessness.
243. In 2005, Mr. Dunbar pled guilty to voluntary manslaughter and carrying a pistol without a license. During pretrial, the court placed Mr. Dunbar in a halfway house, Hope Village, in Southeast Washington D.C. On November 25, 2004, Thanksgiving Day, Mr. Dunbar left the facility without permission and checked himself into a hospital in Arlington, Virginia. At the hospital, Mr. Dunbar complained of severe depression. Because he was suicidal, the hospital admitted him for inpatient psychiatric treatment. He was hospitalized for one week, during which time he was prescribed Wellbutrin, Risperdal, and Trazodone. His attending doctor diagnosed him with Major Depressive Disorder, Recurrent with Paranoid Features. On the day the hospital discharged him, Mr. Dunbar turned himself in to authorities at the D.C. Jail. As a result of his leaving the halfway house, Mr. Dunbar received an additional charge of, and pled guilty, to escape.
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244. The resulting presentence report highlighted Mr. Dunbar’s struggles with depression and mental instability, and recommended that he receive mental health counseling. The court sentenced Mr. Dunbar to ten and a half years imprisonment.
245. The BOP is very familiar with Mr. Dunbar’s serious mental health issues. Before he was transferred to ADX, BOP psychologists and psychiatrists met with Mr. Dunbar numerous times. During these visits, Mr. Dunbar repeatedly complained that he heard voices and that a foul odor emanated from his face. He told one psychologist that he had not slept for years, that his mind just races and that his mental condition was getting to him. He also repeatedly spoke of staff “playing mind games” with him and trying to contaminate his food and medications.
246. Mr. Dunbar also made numerous threats against staff, and also repeatedly threatened to take his own life. In 2006, for instance, he complained that he worried about death “all day long.” That same year, he attempted suicide by ingesting over 30 aspirin tablets.
247. BOP records describe Mr. Dunbar as exhibiting “significant mental health problems,” displaying psychotic symptoms, and experiencing paranoia, depression, and panic attacks. BOP psychiatrists and psychologists offered a litany of working diagnoses for Mr. Dunbar, including Schizoaffective Disorder, Bipolar Disorder, Psychotic Disorder NOS, Major Depressive Disorder With Psychotic Features, and Anxiety Disorder NOS.
248. Having untreated depression, psychosis, paranoia, and anxiety, Mr. Dunbar has engaged in numerous violent acts while in BOP custody. In January 2007, Mr. Dunbar assaulted another prisoner, and then the following month he assaulted a corrections officer. Both incidents occurred at USP Big Sandy. Rather than treat Mr. Dunbar’s underlying mental health issues, the BOP chose to transfer him to USP Allenwood. In October 2007, he assaulted his new cellmate.
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The BOP responded again by transferring Mr. Dunbar to another penitentiary, this time to USP Lewisburg.
249. Predictably, given the BOP’s decision to designate Mr. Dunbar to a mainline prison rather than a facility that could provide him with needed mental health treatment, trouble continued to find Mr. Dunbar. Most notably, in March 2008 he was involved in an incident that added yet more time to his sentence and resulted in his transfer to ADX. On March 19, 2008, he was walking with a Lieutenant at USP Lewisburg to the Lieutenant’s office. When he asked the Lieutenant to stop disrespecting him by cursing at him, the Lieutenant intensified his cursing and was soon joined by another officer. When the two officers advanced in a manner that Mr. Dunbar felt was threatening, he punched the Lieutenant in the head, knocking him unconscious. When the other officer intervened, Mr. Dunbar punched him as well. Eventually Mr. Dunbar was subdued, restrained, and taken to the Lieutenant’s office, where out of view of surveillance cameras staff members viciously beat him while he was still wearing restraints. He was later charged with assaulting the Lieutenant. He was convicted and sentenced to an additional 96 months. Thereafter, the BOP referred him for placement at ADX.
250. In July 2008, in the course of the process for determining whether to transfer Mr. Dunbar to ADX, he was examined by a BOP psychiatrist. Mr. Dunbar related the same symptoms he had experienced most of his life: severe depression, auditory hallucinations, paranoia, anxiety, and sleep disturbance. Even though he had experienced and complained of these symptoms since adolescence and had been treated for them while in BOP custody, the psychiatrist questioned the authenticity of the reported symptoms because Mr. Dunbar’s
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presentation was “immature.” The psychiatrist thus concluded that Mr. Dunbar did not have a mental disorder that would preclude his referral to ADX.
251. On January 7, 2009, the BOP held a hearing on whether to transfer Mr. Dunbar to ADX. The hearing officer asked Mr. Dunbar if he considered himself dangerous. He responded that he was not but that he had “psychological problems.” Disregarding his nearly lifelong history of serious mental illness -- which had been repeatedly diagnosed and treated by the BOP -- the BOP transferred Mr. Dunbar to ADX on February 25, 2009.
252. Since then, Mr. Dunbar’s mental health has deteriorated due to both the lack of adequate treatment and the conditions of confinement at ADX. He has filed multiple Central Office Administrative Remedies appealing his placement at ADX and the BOP’s failure to provide him adequate mental health treatment.
253. As alleged above, in early April 2013 a knife wielding prisoner attacked Mr. Dunbar in Joker Unit at the ADX. Mr. Dunbar defended himself, in the process nearly beating the other prisoner to death with his hands. For months, he sat in the SHU, facing administrative sanctions and possible prosecution for defending himself against an attack that the ADX staff knew about in advance, failed to prevent, and then prolonged for nearly 15 minutes by standing behind bars watching as Mr. Dunbar literally fought for his life against a larger man armed with a knife. As is true for all SHU residents, he spent his time sitting in an empty cell with nothing to occupy his time, smelling the feces other prisoners had smeared on their walls. He also is haunted by his chronic and severe mental illness, and by the dark, persistent trauma of being subjected to an unprovoked and potentially fatal attack, and by being forced to nearly kill another man with his bare hands merely to save his own life.
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254. In 2014 and 2015, Mr. Dunbar has moved back and forth between ADX and USP Florence, but throughout that time has been in the ADX Step-Down Program. He continues to have a serious mental illness. The conditions of his confinement at ADX and in the Step-Down Program have caused or contributed to a wide range of psychiatric conditions that, unless treated, will lead to further deterioration, and the potential for suicide. F. Scott Fountain
255. Scott Fountain is 55 years old. He was imprisoned at ADX for nearly 19 years and in early 2014 was transferred to the Secure Mental Health Step-Down Program (SMH-SDP) at USP Atlanta. Before his incarceration he was a member of the United States Navy. He is serving a life sentence. A photograph of Mr. Fountain is attached hereto as Exhibit 13.
256. Mr. Fountain has serious mental illness. At various times, he has been diagnosed with Schizophrenia, Schizoaffective Disorder, Major Depressive Disorder with Psychotic Features, Antisocial Personality Disorder, Anxiety Disorder NOS, Personality Disorder NOS, and several Substance Abuse Disorders. He has also attempted suicide at least three times.
257. In May 2014, BOP diagnosed him with Major Depressive Disorder, Moderate with Psychotic Features. He was also diagnosed as having Antisocial Personality Disorder and several mild Substance Abuse Disorders (Alcohol, Marijuana, Cocaine, and Amphetamines) in sustained remission, in a controlled environment. Shortly before Mr. Fountain’s transfer to SMH-SDP from ADX, he was assigned care level CARE3-MH. This assignment was confirmed during his May 2014 evaluation. Accordingly, the BOP, at that time, determined that Mr. Fountain requires enhanced outpatient mental health treatment and/or residential mental health treatment, e.g. weekly mental health interventions or placement in a residential treatment
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program. As detailed below, BOP has demonstrated deliberate indifference to his mental health needs.
258. Mr. Fountain’s parents divorced when he was two years old, and his mother subsequently married three additional times. Mr. Fountain’s first stepfather committed suicide shortly after his marriage to Mr. Fountain’s mother. Mr. Fountain was subject to frequent physical abuse by his mother and his second stepfather throughout the duration of their marriage. As a teenager, Mr. Fountain was also abused by several adults he resided with and near, and he attempted suicide on at least two occasions.
259. Mr. Fountain also has a family history of suicide. His mother had a severe mental illness and as a result was volatile and violent. She committed suicide when Mr. Fountain was 22.
260. Mr. Fountain’s extensive history of substance abuse dates back to his teenage years. He started using marijuana at age 12 and alcohol at age 13, in an attempt to self-medicate the effects of his unstable home life. He eventually progressed to daily use of marijuana and alcohol, and later began using amphetamines and unknown pills, cocaine, PCP, LSD, and heroin. He dropped out of high school before his junior year due to his alcohol and drug use, and he developed severe paranoia as a result of his PCP use.
261. Mr. Fountain first began experiencing symptoms of and receiving treatment for mental illness at a young age. He experienced visual and auditory hallucinations throughout his adolescence. He began “hearing songs” in his head at the age of nine, and continues to hear songs on a regular basis. While in juvenile detention, he was prescribed psychotropic medications for the first time, with which he has intermittently been treated throughout his life.
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262. In 1979, Mr. Fountain joined the United States Navy. That same year, he reported seeing a UFO near a military base, which he believed was evidence of the government working with aliens. In 1981, after Mr. Fountain was discovered “crawling around like a cow making cow noises with food on his face,” he was hospitalized for psychiatric evaluation and treatment. He was diagnosed with Paranoid Schizophrenia. Around this time, Mr. Fountain attempted suicide for a third time.
263. By 1981, Mr. Fountain’s Navy career began to unravel as a result of his mental illness. For a time, he was incarcerated in a naval brig, charged for being AWOL, committing four assaults, and a lewd act. He ultimately was sentenced to four years of hard labor. He experienced disciplinary issues while in naval prison, and he was subsequently transferred into federal custody to serve the remainder of his sentence. He was initially committed to FCI El Reno, and later received a disciplinary transfer to FCI Oxford.
264. In January 1984, approximately six months before his scheduled release date, Mr. Fountain was involved in the murder of a correctional officer at FCI Oxford. In August 1986, he was convicted by a jury of first-degree murder and conspiracy to commit murder. He was sentenced to life, plus 150 years.
265. Following his sentencing, Mr. Fountain was transferred to USP Marion, which at that time was the most secure facility operated by the BOP. On February 13, 1987, he was reassigned to the Control Unit, where he remained in solitary confinement for over four and a half years. During this time he received 26 incident reports. On August 12, 1991, Mr. Fountain was transferred to USP Lewisburg. In 1992, Mr. Fountain received a disciplinary transfer back to USP Marion.
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266. In 1994, Mr. Fountain had a “breakdown” following the death of his sister, persistent legal problems, and other circumstances. He experienced auditory hallucinations, was unable to sleep, and described his “personality [breaking] up into different parts.” He was sent to MCFP Springfield for psychiatric treatment and evaluation, where he remained for several months. He was diagnosed with Paranoid Schizophrenia and prescribed psychotropic medication for the first time since entering federal custody. Mr. Fountain was transferred back to USP Marion, where his paranoia intensified and he ceased taking his medication for fear that if heavily medicated he would be unable to defend himself if attacked.
267. ADX opened in November 1994. Less than six months later, on March 15, 1995, and barely a year after the BOP diagnosed him with Schizophrenia, Mr. Fountain arrived at ADX. BOP policy classifies Schizophrenia as serious mental illness, so this diagnosis should have precluded the BOP from housing him at ADX. Mr. Fountain was not taking psychotropic medications at that time.
268. Throughout Mr. Fountain’s incarceration at ADX, he was diagnosed with various mental illnesses and prescribed a variety of psychotropic medications. After his arrival, he was diagnosed with Psychotic Depression and prescribed Risperdal.
269. In 2004, Mr. Fountain filed a series of administrative remedy requests, claiming that the step-down program discriminated against those with mental illness and challenging the adequacy of mental health treatment at ADX. Two of these requests were fully exhausted on June 15, 2004, and February 10, 2005, respectively. However, the BOP did nothing to address Mr. Fountain’s mental health needs.
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270. In 2008, he was prescribed the antidepressant Wellbutrin. However, the drug exacerbated Mr. Fountain’s psychotic symptoms, and he discontinued taking it in February 2009.
271. At various times throughout 2011 and 2012, Mr. Fountain was diagnosed with a Mood Disorder, Unspecified Psychosis, Anxiety Disorder, Antisocial Personality Disorder, and Borderline Personality Disorder, and prescribed Zyprexa, Geodon, Effexor, and Buspar.
272. On May 16, 2012, Mr. Fountain was placed on suicide watch after emailing staff that he was experiencing recurrent suicidal thoughts and nearing a psychotic break. An ADX staff psychologist assessed his suicide risk as low and scheduled a psychiatric evaluation.
273. On July 2, 2012, Mr. Fountain was again placed on suicide watch after repeatedly informing staff that he would kill himself if they did not remove him from his cell. He was then strip searched and placed in an observation cell with nothing but a paper smock open at the back. Lacking a mattress or pillow, he slept on a bare concrete platform.
274. Mr. Fountain’s severe paranoia inhibited his ability to maintain his physical and mental health throughout his placement at ADX. On multiple occasions, Mr. Fountain reported discontinuing his medications or requesting a lower dosage because “I’m so afraid someone will kill me and I’ll be too doped up to try to protect myself.” These fears were understandably exacerbated in late 2011, when a staff member accidentally opened the inner and outer doors of Mr. Fountain and another inmate’s cells at the same time. Mr. Fountain also frequently refused to leave his cell for recreation time or accept cleaning supplies, which would have required allowing staff members to open his cell doors. In May 2012, he discontinued his Geodon pills in favor of monthly Haldol injections so that he could avoid the pill line. He feared that “someone could get to him” if ADX staff left both cell doors open again.
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275. As a result of this lawsuit, BOP established the SMH-SDP at USP Atlanta, which began receiving prisoners in late 2013. On January 8, 2014, Mr. Fountain was transferred to the SMH-SDP. In May 2014, he was evaluated by SMH-SDP staff psychologists, the results of which were reported on November 7, 2014. During this evaluation, Mr. Fountain reported continued feelings of paranoia and the persistent belief that others are trying to harm him. He reported many symptoms of depression, including depressed mood for most of the day, tearfulness, sleep disturbance, feelings of worthlessness, suicidal ideation, fatigue, and loss of pleasure in activities. He also described being “‘Haldoled’ to the point where I’m steady and can go long periods without having to say anything to someone.” The evaluators diagnosed Mr. Fountain with Major Depressive Disorder, Moderate with Psychotic Features, Antisocial Personality Disorder, and several mild Substance Abuse Disorders (Alcohol, Marijuana, Cocaine, and Amphetamines), in sustained remission, in a controlled environment. The evaluators confirmed Mr. Fountain’s classification as a CARE3-MH inmate and recommended individual and group cognitive-behavioral psychotherapy, with primary focuses on mood management, fostering hope and a sense of purpose, and developing social skills.
276. While Mr. Fountain’s condition has improved since his transfer out of ADX, his care was constitutionally deficient at ADX and remains so at the SMH-SDP. In particular, he remains in profound isolation despite years of acceptable conduct, remains subject to unnecessary and psychologically damaging security procedures, does not have adequate access to programming or psychiatric consultation, and continues to receive inadequate care for his medical issues, which exacerbate the symptoms of his mental illness. He also remains at risk of
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sudden cessation of the treatment his is receiving, should BOP decide, in its discretion, to terminate the SMH-SDP, or transfer him to another facility. G. Sean Gillespie
277. Sean Gillespie is 31 years old. He has been housed at ADX since August 7, 2008. Before his incarceration, he was a resident of Spokane, Washington. His current BOP release date is April 26, 2039. A photograph of Mr. Gillespie is attached hereto as Exhibit 14.
278. Mr. Gillespie has mental illness and may have serious mental illness. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs. At various times, Mr. Gillespie has been diagnosed with various mental disorders, including ADHD, Bipolar Disorder, Mood Disorder, Antisocial Personality Disorder, and Depressive Disorder NOS. He engaged in self-injury and made several suicide attempts before his arrival at ADX.
279. Mr. Gillespie was abused as a child and hated his father for not preventing the abuse. His mother was in and out of his life. She was addicted to methamphetamine for a time and made a living from internet pornography.
280. Mr. Gillespie started getting into trouble at the age of ten. He fought with others at psychiatric hospitals, escaped juvenile detention, and spent months living in the woods. At 15, he began using drugs, such as heroin and methamphetamine. While living on the streets, he became associated with local skinheads. In his mid teens, Mr. Gillespie spent time at an Aryan Nations compound in Idaho. He identified himself as a member of the Aryan Nations by the time he was 17, and thereafter was an adherent of the Christian identity movement. Mr. Gillespie twice attended Army basic training, at the ages of 18 and 19, but was dismissed each time due to behavioral problems.
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281. Mr. Gillespie has a lengthy juvenile record. At the age of ten, he was charged multiple times with assault. When he was 17, he was arrested for shouting racial slurs at a Martin Luther King Jr. Parade.
282. Mr. Gillespie was placed in various mental facilities and juvenile detention facilities beginning at age nine. From ages nine through 21, Mr. Gillespie was prescribed many psychotropic medications for depression and mood disorder, including Wellbutrin, Zoloft, Paxil, and Tegretol. He has received diagnoses of ADHD, Bipolar Disorder, and other mood disorders from at least ten different mental health professionals.
283. On April 1, 2004, Mr. Gillespie used a Molotov cocktail to firebomb the Temple B’nai Israel in Oklahoma City, Oklahoma. Mr. Gillespie committed the arson only after he could not locate his original intended target, a person he thought was Jewish based on a name he randomly selected from a phone book.
284. Despite causing little damage to the synagogue, Mr. Gillespie was convicted of using a firearm (the Molotov cocktail) in connection with a violent crime, maliciously attempting to do damage by fire or explosive to a building involved in interstate commerce, and possessing an unregistered firearm.
285. On August 30, 2005, Mr. Gillespie was sentenced to 468 months (39 years) imprisonment. In its Judgment, the sentencing court wrote:
The Court finds this case presents unusual features that merit specific findings. Sean Gillespie’s past behavior indicates he may have sustained organic brain injury as a result of his exposure to and use of alcohol and illicit substances. The Court finds there is evidence indicating that Mr. Gillespie may have a cognitive and/or behavioral disorder that places him at extreme risk of exploitation if confined in a general population facility. The Court strongly recommends Mr. Gillespie be designated to an appropriate facility
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capable of evaluating, diagnosing, and providing treatment to Mr. Gillespie. The Court recommends the submission of this case to the Medical Designator for determination of an appropriate facility. The Court recommends designation to the Federal Medical Center in Rochester, Minnesota. The sentencing court also recommended that Mr. Gillespie participate in a Residential Drug Abuse Program, and while incarcerated, mental health counseling. 286. The BOP ignored the sentencing Court’s strong recommendation, designating Mr. Gillespie to serve his sentence at USP Florence, a general population, maximum security facility located in the same four-prison complex as ADX. Mr. Gillespie was housed at USP Florence from October 2005 through October 2007. 287. In 2005, Mr. Gillespie was prescribed Risperdal and Zyprexa for depression and mood control. Both of these were later discontinued because he attempted suicide by overdosing. 288. On November 7, 2007, Mr. Gillespie was transferred to USP Coleman I after he stabbed another inmate. While confined at USP Coleman I, Mr. Gillespie mutilated himself by cutting. 289. Mr. Gillespie was sent to ADX on August 7, 2008 to serve an extended sentence in the Control Unit for the problems that he caused at USP Coleman I, including attempting to slash a guard through the food slot. 290. Since arriving at ADX, Mr. Gillespie has renounced his past involvement in racist organizations and activities by, among other things, publishing antidiscrimination and antiracism narratives and reconciling with the leadership of the synagogue he firebombed. With a supporting recommendation of a BOP psychiatrist, he also sought removal of his prominent
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racist tattoos. To date, the BOP has refused to assist him with the tattoo removal. That refusal has contributed to the pronounced deterioration of his mental health during his incarceration at ADX.
291. In recent years, certain other ADX prisoners have frequently threatened and ostracized Mr. Gillespie due to, among other things, his open renunciation of his past involvement in racist activities. At times he is threatened every day. He rarely leaves his cell because of the abuse and threats he receives, and at times has been driven to the brink of suicide.
292. On September 30, 2013, Mr. Gillespie requested an administrative remedy claiming he did not receive proper psychiatric treatment. His request was fully exhausted with the BOP Central Office.
293. On December 6, 2013, Mr. Gillespie was placed in an observation cell after he put a plastic garbage bag over his face until he passed out.
294. On March 27, 2014, Mr. Gillespie inserted the tip of a pen into his left forearm and removed an oval shape of abrasion (approximately 15cm x 8cm) of the top layer of his skin, in an effort to remove a tattoo. In May 2015, he made a further attempt to remove the racist tattoos on his hand and thigh by cutting. Staff acknowledged the resulting wounds but Mr. Gillespie received no treatment for them.
295. On August 20, 2014, the BOP evaluated Mr. Gillespie and described him as depressive, angry, impulsive, and agitated, and also reporting insomnia. The BOP diagnosed him with Depressive Disorder NOS, Antisocial Personality Disorder, aspects of Borderline Personality Disorder, and suggested additional assessment to confirm or rule out Persuasive Depressive Disorder. He was designated care level CARE2-MH, meaning that the BOP determined Mr. Gillespie requires outpatient mental health care and/or brief, crisis-oriented
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mental health care of significant intensity, e.g., placement on suicide watch or behavioral observation status.
296. On November 5, 2014, while Mr. Gillespie was in the SHU, he attempted suicide by placing a noose around his neck . He later reported that he had wanted to die because he was not receiving treatment for his mental illness. Two days later, he tried to break a meal tray on the ceiling of his cell, injuring his thumb and breaking a sprinkler. He reported that a razor blade fell out of the sprinkler, which he then swallowed, along with several pieces of the broken sprinkler head. Although he was given ibuprofen for his pain, his mental illness was not addressed. Staff refused to summon medical help when he began to bleed from his rectum from swallowing these sharp metal objects. He also received an incident report for throwing urine on a correctional officer who had taunted him about his suicide attempt.
297. Mr. Gillespie’s August 2014 diagnosis was largely confirmed during another ADX Diagnostic Interview on March 19, 2015, during which the BOP diagnosed Mr. Gillespie with Antisocial Personality Disorder and Borderline Personality Disorder, and again assigned him care level CARE2-MH. At that time, the BOP withdrew his previous diagnosis of Depressive Disorder despite his frequent suicidal thoughts and self-harm.
298. In sum, Mr. Gillespie has mental illness and may have serious mental illness. The conditions of his confinement at ADX have caused or contributed to a wide range of psychiatric conditions that, unless treated, will lead to further deterioration, and may lead to suicide. Although the BOP has provided him with some mental health services as a result of this lawsuit, his care remains constitutionally deficient, and his condition is, as a result, deteriorating. That deterioration has been magnified by the BOP’s insistence that he remain in the extremely
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isolated and austere conditions in the ADX Control Unit, for which prisoners with mental illness are particularly ill-suited. BOP’s continued neglect of Mr. Gillespie’s mental health needs violates BOP policy and the Eighth Amendment. H. Charles Hipps
299. Charles Hipps is 41 years old. He has been housed at ADX since January 2008. Before his incarceration he was a resident of Murphysboro, Illinois. His current BOP release date is October 22, 2039.
300. Mr. Hipps has mental illness and may have serious mental illness. At various times, he has been diagnosed with Major Depressive Disorder, Bipolar Disorder, Antisocial Personality Disorder, Anxiety Disorder, and Alcohol Use Disorder. At least one psychiatrist who evaluated him in 2014 suggested further analysis to confirm or rule out a diagnosis of Bipolar Disorder. He also has a history of suicidal ideation and has attempted suicide at least twice.
301. In August 2014, the BOP diagnosed him with Major Depressive Disorder, in partial remission, and Alcohol Use Disorder. BOP policy recognizes Major Depression as a serious mental illness that precludes BOP from housing Mr. Hipps at ADX. Nonetheless, BOP assigned him to care level CARE2-MH. Accordingly, the BOP determined that Mr. Hipps requires routine outpatient mental health care and/or brief, crisis-oriented mental health care of significant intensity, e.g. placement on suicide watch or behavioral observation status. As detailed below, BOP has demonstrated deliberate indifference to his mental health needs.
302. During childhood, Mr. Hipps experienced significant neglect by his mother and physical and verbal abuse by several adult relatives. He was hyperactive and began to
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experiment with alcohol and marijuana at age nine. At age 12, he was hospitalized and treated for Bipolar Disorder with the powerful antipsychotic medications Thorazine and Mellaril.
303. Mr. Hipps was first incarcerated in Arkansas in 1994 for theft and breaking and entering. While incarcerated, Mr. Hipps attempted suicide and received psychiatric care on at least four occasions. Mr. Hipps attempted suicide again five years later while having marital problems.
304. After his release from Arkansas state prison, Mr. Hipps’s mental health continued to deteriorate. He experienced severe insomnia, paranoia, and visual hallucinations, and sometimes went two to three days without sleeping. In January 2000, Mr. Hipps participated in a residential substance abuse treatment program, where he was diagnosed as having symptoms of Bipolar Disorder. Seven months later, he entered a different treatment program and was again diagnosed with Bipolar Disorder.
305. In January 2001, Mr. Hipps was hospitalized in a state facility after threatening to kill his girlfriend and himself. He was once more diagnosed with Bipolar Disorder, as well as Cyclothymia and Antisocial Personality Disorder. He was treated with Lithium, Zyprexa, and Sinequan.
306. On February 6, 2001, Mr. Hipps was discharged. Around that time, he underwent an additional psychiatric evaluation, which revealed diagnoses of Major Depression (with agitation) and Bipolar Affective Disorder. At a follow-up psychiatric evaluation conducted in May 2002, he was diagnosed with Bipolar Disorder and Antisocial Personality Disorder.
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307. In 2003, he was charged and found guilty of drug crimes. He was sentenced to a term of 130 months and incarcerated at FCI Oxford. Subsequently, he was transferred to USP Terre Haute in 2005 and then to USP Atwater in 2006.
308. While in an intoxicated state on October 31, 2007, Mr. Hipps and another inmate took an officer hostage at USP Atwater in an attempt to be transferred to another institution. As a result, Mr. Hipps received an additional 360 months to run consecutively to his previous sentence. The Presentence Investigation Report prepared following his conviction detailed Mr. Hipps’s extensive history of psychological problems, including at least six diagnoses of Bipolar Disorder over a period of 16 years and a variety of treatments with psychotropic medications, which should have precluded the BOP from housing him at ADX. Nonetheless, he was transferred to ADX in early 2008, and the portion of his Presentence Investigation Report documenting his serious mental illness was retained by ADX staff psychologists.
309. On January 18, 2008, Mr. Hipps was placed in the SHU and remained there for the next 18 months. BOP records reflect that Mr. Hipps was evaluated every 30 days at cell front, but these evaluations consisted of an ADX staff psychologist walking through the housing unit and speaking only to those prisoners who spoke to him first. Thus, it is unsurprising that Mr. Hipps’s evaluations describe him as declining psychology services and not appearing distressed.
310. On December 27, 2009, Mr. Hipps was accused of spitting on a staff member and placed in the SHU again, where he remained for several months.
311. On December 1, 2012, Mr. Hipps was returned to the SHU for making jailhouse liquor in his cell. Due to his desire to stay sober, he requested individual counseling and met with a counselor on December 18, 2012. Mr. Hipps recounted his lengthy history of alcohol problems
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and discussed his struggle to remain sober. He “posited the possibility of being bipolar,” but the counselor concluded that the history provided by Mr. Hipps was more consistent with unipolar depression. The counselor also noted that a plan to address Mr. Hipps’s Alcohol Use Disorder would be formulated. As of November 2014, this had not yet occurred.
312. While meeting with an ADX psychologist on February 14, 2013, Mr. Hipps expressed his desire to get out of the SHU. BOP records reflect that Psychology Services “brainstormed programs with inmate in order to develop a treatment plan to more assertively address his alcohol dependence.”
313. On February 26, 2013, Mr. Hipps received a disciplinary incident report and was returned to the SHU. Three weeks later, on March 18, 2013, he was evaluated at cell front by an ADX psychologist. Mr. Hipps, who had recently threatened suicide, expressed frustration about his living environment and said he felt like he was reaching his “breaking point.” The psychologist conducted a suicide risk assessment, opined that his acute risk for suicide was low, and assigned Mr. Hipps a rule out diagnosis of Depressive Disorder, with a planned telepsychiatry appointment.
314. Mr. Hipps attended his requested telepsychiatry appointment on March 20, 2013. He discussed his prior psychiatric hospitalizations and reported previously being prescribed Lithium, Zyprexa, Sinequan, and Prozac. Finally, he reported that his depression had worsened and that he had problems sleeping. The psychiatrist prescribed him a trial of Zoloft for a depressive disorder.
315. In early April 2013, Mr. Hipps was transferred to a regular ADX housing unit.
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316. On May 10, 2013, he met with another staff psychologist. Mr. Hipps expressed a desire to try new medication because the Zoloft made him feel manic. The Zoloft was discontinued when he met with a telepsychiatrist on June 12, 2013, and he was then prescribed Celexa. While Mr. Hipps reported “some improvement” at that time, he also complained of sleep problems.
317. On August 27, 2013, he met with staff psychologist for an individual session. Mr. Hipps expressed distress that his father, with whom he had recently become close, had had a stroke. He reported that the Celexa was not addressing all of his symptoms, and his dosage was increased.
318. On December 11, 2013, Mr. Hipps was prescribed Abilify, an antipsychotic, to augment his existing antidepressant. The Abilify was also intended to reduce his reported paranoia, anxiety, and poor sleep.
319. Mr. Hipps was seen emergently on December 30, 2013. In a note to a staff psychologist he wrote, “Please come see me [as soon as possible.] I am feeling some crazy stuff and having suicidal thoughts that are hard to ignore, plus I can hardly sleep at night. Please don’t talk to me in my cell. . . . Please come and call me out.” He reported that since starting the Abilify he had developed suicidal thoughts and could not sleep. In addition to insomnia and suicidal ideation, he reported night sweats, visual hallucinations, and that he had considered overdosing on Tylenol. He was tearful in this exchange and requested to discontinue the Abilify. The psychologist diagnosed Mr. Hipps with Depressive Disorder and Anxiety Disorder, Not Otherwise Specified, requested a new mediation evaluation, and recommended that he be allowed to move to the upper tier where he had friends with whom he could exercise.
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320. Throughout January 2014, Mr. Hipps expressed frustration and agitation over not being moved. On February 10, 2014, he was sent the book “Draw Real People” from the psychology self-help library. In June 2014, he reported increased appetite and weight, paranoia, exhaustion, excessive sleep, lack of motivation, and “not feeling right.”
321. Following another psychological evaluation, it was recommended that Mr. Hipps discontinue Celexa and begin taking Effexor XR. While Mr. Hipps reported that he was diagnosed with Bipolar Disorder in 2007, the evaluator noted, “His symptoms do not appear to fit that diagnosis without any episodes even approaching mania.” Noting that he was chronically suicidal, the evaluator diagnosed Mr. Hipps with a depressive disorder and anxiety disorder. She reported his Alcohol Use Disorder to be in remission.
322. Drs. Meredith Cary and Jessica Virzi, experts designated by the BOP, evaluated Mr. Hipps on August 19, 2014. During this evaluation, Mr. Hipps reported being stabilized on Effexor XR , but also told Drs. Cary and Virzi that he struggled with depression, hopelessness, a lack of motivation, and sleep and appetite issues. He noted that he “[thought] about dying rather than doing the time.” Drs. Cary and Virzi opined that he met criteria for both Major Depressive Disorder, in partial remission, and Alcohol Use Disorder, conditions which they opined did not rise to the level of serious mental illness. They assigned him to care level CARE2-MH, which could be provided within the confines of ADX, even though his primary diagnosis of Major Depression precludes the BOP from housing him at ADX.
323. Mr. Hipps’s symptoms of depression persist, as does the BOP’s neglect of his mental health needs. On December 31, 2014, and again on January 7, 2015, Mr. Hipps reported that his medication was no longer effective. He described his mental state as “much worse” and
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complained of decreased energy, increased need for sleep, agitation, irritability, poor concentration, and loss of interest in activities. On January 12, 2015, he attended a telepsychiatry appointment and was prescribed Wellbutrin, another antidepressant. He requested an increased dosage one month later, as he continued to feel irritable and hopeless, and was having trouble sleeping.
324. On March 24, 2015, Mr. Hipps underwent a suicide risk assessment after emailing staff, “I have reocurrent [sic] suicidal thoughts with extreme paranoia” and expressing a need for mental health treatment. He later explained to the evaluator that he was not having active suicidal thoughts, but was experiencing suicidal thoughts more often. The evaluator determined that suicide watch was not warranted.
325. On April 24, 2015, Mr. Hipps was seen by ADX staff psychologist Kristen Moody for a Restrictive Housing Mental Health Evaluation, during which she determined that a diagnostic reconciliation was needed. However, Mr. Hipps’s records do not reflect a discrepancy in his diagnoses, and Dr. Moody herself reported on December 1, 2014 that there was “no discrepancy between this writer’s clinical opinion, psychology documentation in [Mr. Hipps’s records,] and the [August 2014 evaluation.]” Nonetheless, Dr. Moody dismissed Mr. Hipps’s August 2014 diagnosis of Major Depressive Disorder, and opined that Mr. Hipps instead has Persistent Depressive Disorder. She concluded that this diagnosis was more appropriate because his depressive symptoms, which were noted as worsening significantly since his placement in restrictive housing, were present more days than not and persisting for at least two years. Unlike Major Depressive Disorder, Persistent Depressive Disorder is not classified as a serious mental illness under BOP policy. Dr. Moody also diagnosed Mr. Hipps with Antisocial Personality
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Disorder, a disorder which the BOP considers to be untreatable. Notwithstanding her rejection of Mr. Hipps’s previous diagnoses, Dr. Moody confirmed that Mr. Hipps requires at least care level CARE2-MH, meaning that he requires routine outpatient or crisis-oriented mental health care.
326. Upon information and belief, Mr. Hipps’s April 2015 evaluation was intended to minimize the appearance of his mental illness by eliminating his diagnosis with a disorder that, under BOP policy, precludes him from being housed at ADX.
327. Mr. Hipps has mental illness and may have serious mental illness. The conditions of his confinement at ADX have caused or contributed to a wide range of psychiatric conditions that, unless treated, will lead to further deterioration, and may result in suicide. Although the BOP has provided him with some mental health services as a result of this lawsuit, his care remains constitutionally deficient, and his condition is, as a result, deteriorating. BOP’s continued neglect of Mr. Hipps’s mental health needs violates BOP policy and the Eighth Amendment. I. Ronnie Houston
328. Ronnie Houston is 44 years old. He was first sent to ADX in 2008, and was returned there in 2013 after being transferred to California to stand trial on assault charges. Before his federal incarceration he was a resident of Grand Saline, Texas. His current BOP release date is June 3, 2032. A photograph of Mr. Houston is attached hereto as Exhibit 15.
329. Mr. Houston has serious mental illness. In August 2014, the BOP diagnosed Mr. Houston as having Bipolar Disorder Type 1, as well as Antisocial Personality Disorder and Mild Neurocognitive Disorder due to Traumatic Brain Injury, and assigned him care level CARE3MH. Accordingly, the BOP determined that Mr. Houston requires enhanced outpatient mental
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health care (i.e., weekly mental health interventions); or residential mental health care (i.e., placement in a Residential Treatment Program). As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs.
330. Mr. Houston was born in Norwalk, California. As a child, he was physically abused by his parents. For example, at age four, he suffered third degree burns after scalding water was thrown on him, and at age five or six, his father broke his nose. Both parents had problems with alcohol, and after his parents divorced, Mr. Houston’s father was largely absent during his childhood. At age 11, Mr. Houston became a ward of the state due to neglect. Mr. Houston stopped attending school altogether by eighth grade.
331. Mr. Houston has a history of substance abuse beginning at age 12. By age 13, he had used methamphetamines, which he began injecting at age 14. He was a heavy methamphetamine user during much of the time he was not incarcerated.
332. In 1989, at age 18, Mr. Houston was arrested on state burglary charges in Texas. He was convicted and sentenced to a ten-year prison term.
333. After release from state prison, Mr. Houston was arrested on federal charges for possession of unregistered firearms. Mr. Houston pled guilty and received a ten-year sentence. After unsuccessfully attempting to withdraw his guilty plea, Mr. Houston appealed his conviction and lost.
334. While serving his federal prison term at USP Victorville, Mr. Houston was involved in assaults on two prisoners in the SHU recreation cages in December 2007 and February 2008, resulting in further criminal charges. As a result of the assaults, he was transferred to ADX, where he was housed in a general population unit.
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335. Mr. Houston maintained clear conduct at ADX until 2010, when he was transferred back to California to stand trial on the assault charges. A jury acquitted Mr. Houston of assault with intent to kill, but convicted him on all other charges. The court sentenced Mr. Houston to a total of 276 months in prison, and the sentencing judge recommended that he be sent to MCFP Springfield to receive psychological and/or psychiatric evaluation, treatment, and counseling.
336. Mr. Houston has had mental health issues since the age of nine. As a child, he was treated for ADHD and depression. He also had psychotic episodes and attempted to commit suicide by shooting himself. In 1990, while in state prison, Mr. Houston again attempted to commit suicide using a sheet.
337. Mr. Houston has been hospitalized multiple times for mental health treatment, and has been treated at various times with Ritalin, Elavil, Haldol, Lithium, Depakote, Celexa, and Trazodone for depression and anxiety, among other things.
338. Mr. Houston also has a history of head trauma. In 1989, he was in a car accident during which his head went through a windshield; in 1994, he was knocked out in bull riding incident; and in 2004, a fellow inmate at FCI Beaumont hit him in the head with a brick and knocked him unconscious. Mr. Houston experiences forgetfulness, and the BOP has identified him as having Mild Neurocognitive Disorder due to Traumatic Brain Injury and recommended that he could benefit from neuropsychological testing to assess for cognitive disorders.
339. Mr. Houston has a history of cutting himself, beginning with his time in juvenile detention. He has been hospitalized at least three times for cutting and drug abuse. Mr. Houston has engaged in other forms of self-harm as well, including inserting AA batteries into his urethra.
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340. In April 2012, Mr. Houston was sent to USP Florence. In June 2012, while in the SHU at that facility, Mr. Houston was involuntarily taken off of Elavil, an anti-depressant he had been taking. He subsequently destroyed his cell and engaged in other destructive behavior, including smearing himself with feces and setting his cell on fire. He was returned to ADX in April 2013 and placed in the Control Unit.
341. On November 20, 2013, Mr. Houston’s mother, who had a history of depression and psychotic episodes, committed suicide. After her suicide, Mr. Houston underwent a suicide risk assessment due to noose found in his cell.
342. Dr. Hannah Ong, an expert designated by the BOP, evaluated Mr. Houston on August 18, 2014, with two additional BOP-designated experts observing. During this evaluation, Mr. Houston provided his psychosocial history described above. He reported that he experiences frequent recurrent depressive episodes accompanied by suicidal thoughts and described multiple incidents of destroying his cell due to anxiety. Dr. Ong opined that Mr. Houston meets criteria for a diagnosis of Bipolar Disorder and recommended that he be assigned care level CARE3MH, specifically, residential care for chronic serious mental illness.
343. Under the BOP’s revised policies, the BOP’s diagnosis of Mr. Houston with a serious mental illness and assignment of him to care level CARE3-MH precludes the BOP from housing Mr. Houston at ADX. Nevertheless, he remains at ADX, in the Control Unit, receiving some psychotropic medication but otherwise remaining largely untreated.
344. Mr. Houston has serious mental illness. The conditions of his confinement at ADX have caused or contributed to a wide range of psychiatric conditions that, unless treated, will lead to further deterioration, and may result in suicide. Although the BOP has provided him
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with some mental health services as a result of this lawsuit, his care remains constitutionally deficient, and his condition is, as a result, deteriorating. His continued assignment to ADX and neglect of his mental health needs violates BOP policy and the Eighth Amendment. J. John Lamb
345. John Lamb is 50 years old. He has been housed at ADX since February 2011. Before his incarceration he was a resident of Camas, Washington. His current BOP release date is July 4, 2046. A photograph of Mr. Lamb is attached hereto as Exhibit 16.
346. Mr. Lamb has mental illness and may have serious mental illness. At various times, he has been diagnosed with Depression, Persistent Depressive Disorder, and Antisocial Personality Disorder. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs.
347. In August 2014, the BOP diagnosed Mr. Lamb with Mild Persistent Depressive Disorder and Antisocial Personality Disorder. He was assigned care level CARE2-MH. Accordingly, the BOP, at that time, determined that Mr. Lamb requires routine outpatient mental health treatment and/or brief, crisis-oriented mental health treatment of significant intensity, e.g. placement on suicide watch or behavioral observation status.
348. Mr. Lamb was born in Escondido, California. He has one brother, who is currently incarcerated in a prison mental health facility in Soledad, California and receiving treatment for Bipolar Disorder.
349. Mr. Lamb was not in trouble with the law until his late 20s, when he developed an addiction to methamphetamine. That addiction led to burglaries, including one during which he
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murdered the resident of a home that he had broken into. In December 1995 Mr. Lamb pled guilty to first-degree murder. He was sentenced to 50 years in prison.
350. Mr. Lamb attempted to escape from the Washington State Penitentiary in July 1996. The following year, he succeeded in escaping from the Washington State Penitentiary’s Intensive Management Unit, a “supermax prison,” although he was recaptured within a few hours. Thereafter, he was transferred into federal custody. In September 1999, he arrived at USP Marion. In August 2006, after several years of clear conduct, Mr. Lamb was transferred to USP Victorville.
351. In 2007, Mr. Lamb was diagnosed with depression. He began receiving the antidepressants Prozac and Zoloft. When those medications failed to alleviate his symptoms, he was prescribed Wellbutrin, another antidepressant. Mr. Lamb reported experiencing immediate relief as a result of this medication.
352. In 2008, Mr. Lamb developed a contracture on his right ring finger. A contracture is the permanent contraction, or shortening, of a muscle or tendon, which causes the affected tissue to remain in a persistent state of tension. In Mr. Lamb’s case, the contracture causes the ring finger of his dominant (right) hand to remain bent towards his palm at a 45 degree angle. It is painful and significantly interferes with his daily activities, including exercise. Since Mr. Lamb developed the contracture, at least two doctors have recommended surgical treatment, and Mr. Lamb has filed at least nine administrative remedy requests between December 2009 and June 2014 challenging the BOP’s failure to treat his finger. Two of these requests were fully exhausted on July 27, 2010 and November 13, 2014, respectively. Additionally, During Mr. Lamb’s mental health evaluation by the BOP in August 2014, the evaluators concluded that
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“medical attention to [Mr. Lamb’s] contracted finger would likely help both his anger and depressive symptoms.” Nonetheless, as of May 2015, his contracted finger remains untreated.
353. In March 2009, Mr. Lamb was involved in a riot on the exercise yard at USP Victorville. He was subsequently transferred to the Special Management Unit at USP Lewisburg, where he remained until February 2011. Mr. Lamb’s Wellbutrin dosage was increased while at Lewisburg, which allowed him to be in a “steady mood all day.”
354. In early 2010, the medical staff at USP Lewisburg changed its practice for administering psychotropic medication, and began crushing the pills given to Mr. Lamb, who previously had received his medication in whole form. Because the crushed medication caused Mr. Lamb to gag when he tried to swallow it, he began wrapping the powder in a ball of toilet paper every morning, in front of the officer, and then swallowing the toilet paper ball while the staff member was still standing there watching him. Every day for at least three months, Mr. Lamb took his medication the same way, with no problems or disciplinary issues.
355. In June 2010, Mr. Lamb was involved in an altercation with another prisoner, which precipitated his transfer to ADX. Sometime after that, he began receiving Interferon for his Hepatitis C. Every day, the staff brought him several large Interferon capsules, which he was supposed to swallow whole. At the same time, he received his crushed Wellbutrin, which he wrapped in toilet paper and swallowed.
356. On July 9, 2010, Mr. Lamb was evaluated for Control Unit placement at ADX by a staff psychologist at USP Lewisburg. Mr. Lamb reportedly was unaware of the purpose of the evaluation and, because he suspected the evaluator of attempting to elicit incriminating information from him, refused to speak to the evaluator. The evaluator noted Mr. Lamb’s
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prescription for psychotropic medication and his diagnosis of Depressive Disorder, NOS. Nonetheless, the evaluator “did not identify mental health concerns that would preclude [Mr.] Lamb’s placement in a Control Unit setting.” On November 2, 2010, the BOP requested an “updated mental status . . . as part of [Mr. Lamb’s] ADX referral,” during which Mr. Lamb’s Wellbutrin prescription was again noted.
357. On January 14, 2011, a substitute physician’s assistant broke Mr. Lamb’s Interferon capsules open and mixed the medicine with his Wellbutrin. The two argued when Mr. Lamb protested that the medication was not supposed to be taken that way. Soon afterwards, Mr. Lamb was given a disciplinary incident report for wrapping his Wellbutrin in toilet paper, and the medication was abruptly discontinued. The recommended practice for discontinuing Wellbutrin is to taper off usage because abrupt discontinuation can result in both withdrawal symptoms and a relapse of depression.
358. BOP policy prevents prisoners who receive psychotropic medications from being housed in the Control Unit. Upon information and belief, Mr. Lamb’s potential placement at ADX was a factor in the BOP’s decision to discontinue his Wellbutrin approximately one month prior to his ADX transfer.
359. On February 11, 2011, Mr. Lamb arrived at ADX. During his intake screening, Mr. Lamb was not asked a single mental health question. He was housed in the SHU for approximately two and a half weeks, and did not receive a psychological evaluation during that time.
360. Mr. Lamb was subsequently placed in the ADX Control Unit, after which he requested mental health care. In response, an ADX staff psychologist told Mr. Lamb that
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psychotropic medications were not available to prisoners housed in the Control Unit, but offered him a book on depression. His subsequent contacts with the mental health staff at ADX have been similarly unproductive. Between early 2011 and late 2013, Mr. Lamb made written requests for Wellbutrin on at least six occasions. In May 2013, after one such request, an ADX staff psychologist opined that Mr. Lamb might benefit from psychotropic medication treatment and subsequently referred him to a psychiatrist. On June 6, 2013, the psychiatrist concurred that Mr. Lamb appeared depressed. During a follow-up evaluation, the referring psychologist noted that Mr. Lamb was still not receiving any type of medication, was reporting a continued depressed mood, and had a blunted affect. She contacted the psychiatrist to “again [emphasize] her clinical opinion that [Mr. Lamb’s] depressive symptoms may be benefited by medication intervention.” On August 7, 2013, the psychiatrist spoke with Mr. Lamb for less than 30 minutes. Based on this encounter and a review of Mr. Lamb’s records, he refused to prescribe psychotropic medication, noting, “I seriously doubt inmate’s subjective symptoms.” Following this encounter, Mr. Lamb continued to report symptoms of depression and submit requests for treatment.
361. In September 2013, after he was contacted by an attorney regarding this lawsuit, Mr. Lamb’s Wellbutrin was restored for the first time since his arrival at ADX. He was evaluated by a telepsychiatrist for approximately ten minutes and prescribed Wellbutrin.
362. On August 17, 2014, Drs. Hannah Ong and Jay St. Amant, experts designated by the BOP, evaluated Mr. Lamb. Mr. Lamb remained on Wellbutrin but had not seen a psychiatrist for nearly one year. During his evaluation, Mr. Lamb described the antidepressant as partially helpful, but reported continuing feelings of depression and anger. He requested an increased dose of his Wellbutrin and complained about his contracted finger remaining untreated. Drs. Ong and
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St. Amant diagnosed Mr. Lamb with mild Persistent Depressive Disorder and Antisocial Personality Disorder (“ASPD”). Despite his reports of continuing problems and recognition of his “anger and depressive symptoms,” they concluded: “Mr. Lamb’s symptoms of Persistent Depressive Disorder are stable on current antidepressant and are not impairing his functioning.” They opined that Mr. Lamb’s condition did not rise to the level of serious mental illness and assigned him to care level CARE2-MH, meaning that they believed his mental health needs could be met within the confines of ADX. Mr. Lamb’s symptoms of depression persist, as does the BOP’s neglect of his mental health care needs. In particular, despite his continuing prescription for antidepressants, he rarely is able to consult with a psychiatrist.
363. On April 28, 2015, Mr. Lamb was evaluated for the ostensible purpose of reconciling his prior diagnoses. Mr. Lamb refused to participate in this evaluation, as he had refused a psychological evaluation on at least three occasions in the preceding months. His records reflect that Psychology Services had been unable to conduct a mental status examination—a critical component of proper psychological assessment—since February 4, 2015. The evaluator proceeded based on Mr. Lamb’s BOP records alone, and dismissed Mr. Lamb’s August 2014 diagnosis of Persistent Depressive Disorder, noting that “since August 2013 providers have noted no evidence of depressive symptoms, and [Mr. Lamb’s] only reported symptoms are ‘sleep issues.’” The evaluator then diagnosed Mr. Lamb with Cannabis Use Disorder, Stimulant Related Disorders (Amphetamines), and ASPD. One of the criteria for an ASPD diagnosis is evidence of a conduct disorder before the age of 15, but no such evidence exists in Mr. Lamb’s records. Importantly, the BOP considers ASPD to be untreatable, and generally does not provide meaningful treatment to prisoners whose primary, or only, diagnosis
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is ASPD. The evaluator downgraded Mr. Lamb’s care level to CARE1-MH, meaning that Mr. Lamb requires no significant mental health care and has consistently demonstrated appropriate help-seeking behavior in response to any reemergence of symptoms of mental illness. This determination is plainly unreasonable, especially in light of Mr. Lamb’s maintenance on psychotropic medication and his refusal to interact with psychology staff.
364. Upon information and belief, Mr. Lamb’s April 2015 evaluation was ordered not to reconcile a discrepancy between proposed diagnoses, but to minimize Mr. Lamb’s mental illness and assign him a diagnosis with a disorder the BOP considers to be non-treatable.
365. Mr. Lamb has mental illness and may have serious mental illness. The conditions of his confinement at ADX have caused or contributed to a wide range of psychiatric conditions that, unless treated, will lead to further deterioration. Although the BOP has provided him with some mental health services as a result of this lawsuit, his care remains constitutionally deficient, and his condition is, as a result, deteriorating. BOP’s continued neglect of Mr. Lamb’s mental health needs violates BOP policy and the Eighth Amendment. K. Herbert Isaac Perkins
366. Herbert Isaac Perkins, also known as “Pee Wee,” is 39 years old. Before his incarceration, he lived in Albuquerque, New Mexico. Mr. Perkins is serving a life sentence for armed robbery. Mr. Perkins has serious mental illness, which has at various times been diagnosed as Major Depression, Anxiety Disorder, and Antisocial Personality Disorder. He also exhibits signs and symptoms of PTSD and may be experiencing the long term effects of serious closed head injuries. During his incarceration at ADX, Mr. Perkins twice attempted suicide. As
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detailed below, the BOP has demonstrated deliberate indifference to his mental health needs. A photograph of Mr. Perkins is attached hereto as Exhibit 17.
367. Mr. Perkins grew up in Albuquerque, New Mexico, in a poor Latino neighborhood known as “the War Zone,” so named because of the area’s conditions of abject poverty, drug accessibility, and perpetual violence. He was recruited into a gang at the age of nine. His mother abused drugs, and shared cocaine with him repeatedly from the time he was 12 years old.
368. When Mr. Perkins was 14 or 15 years old, his father committed suicide by shooting himself in the head while on the telephone with Mr. Perkins. As a teenager, Mr. Perkins was frequently in juvenile detention and he did not finish high school. It was during this period that he first was treated for mental illness.
369. When properly treated, Mr. Perkins’ Major Depression is controllable and relatively benign. At the time of his sentencing and for several months thereafter, Mr. Perkins was housed at a federal detention center in Albuquerque, New Mexico. During that period, he had uninterrupted access to proper medication and was largely asymptomatic. On July 17, 2008, however, he was moved to the Federal Transfer Center in Oklahoma City. Unbeknownst to him, he was en route to ADX. While at Oklahoma City his medication was abruptly discontinued. When he asked that it be restored, he was told that the BOP had no record of a prescription for him for psychotropic mediation.
370. Mr. Perkins arrived at ADX on July 25, 2008. At that time he was enduring the effects of the sudden discontinuation of his medication. He was also going through withdrawal from heroin, to which he was addicted and which he had been able to obtain while in federal
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detention during his trial and sentencing proceedings, but not while at ADX. In addition, within a few weeks after his arrival at ADX, his wife left him and cut off communication between Mr. Perkins and his young children.
371. Shortly after his arrival at ADX Mr. Perkins informed BOP officials that he was experiencing depression and asked to see a psychologist or psychiatrist. He also asked for his medication to be restored. Upon information and belief, an ADX correctional officer also reported his depressed state and sought psychological intervention. BOP officials, however, refused to take action. Mr. Perkins’s interactions with the correctional and mental health staff at ADX have not adequately addressed his mental illness.
372. Upon information and belief, in August 2008, about a month after Mr. Perkins arrived at ADX, an ADX correctional officer noted his extreme depression and sought intervention by a psychologist, but was ignored. A few days later, on August 17, 2008, Mr. Perkins used a razor to slice open a blood vessel in his neck. He was taken to Parkview Hospital in Pueblo, Colorado, where he underwent emergency surgery.
373. When he returned from the hospital to ADX, Mr. Perkins was weak and disoriented from blood loss and the stress of surgery. Upon his arrival at ADX, a BOP psychologist told him that he was being placed back in the same cell, in which he had just attempted to kill himself. Mr. Perkins responded that he would not be there long, because he was again going to try to kill himself. Rather than placing him on suicide watch or transferring him to a BOP medical center, ADX officials returned Mr. Perkins to the same cell, which was still awash with his own blood from the suicide attempt; the razor he had used to slash his throat was still sitting on his sink. While most of the prisoners on the tier objected loudly that Mr. Perkins
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should be sent to MCFP Springfield, ADX staff expressed amusement at Mr. Perkins’ first suicide attempt, brought him a pail of plain water to clean up the blood in his cell, and later removed the razor. The following day, Mr. Perkins made good on what he told a BOP psychologist upon his return the previous day from the hospital. Specifically, he smashed the television in his cell, swallowed some of the broken glass, slashed his wrist, and attempted to tear open the earlier wound on his neck. Again, his bodily wounds were dressed, and again, he was returned to his cell.
374. Belatedly, Mr. Perkins was treated with Zoloft; which ADX personnel later withdrew without explanation. After that, Mr. Perkins received no meaningful mental health care at ADX until late 2011 or early 2012, after he began to communicate with Plaintiffs’ counsel. Only then did BOP officials finally prescribed Prozac and Sinequan for Mr. Perkins’ depression. However, Mr. Perkins still was not provided with regular access to mental health services. As a result, while his condition improved somewhat due to the belatedly prescribed medication, in 2012 and 2013 he remained chronically depressed and at risk of suicide.
375. Upon information and belief, following his introduction to Plaintiffs’ counsel, Mr. Perkins was subjected to a pattern of harassment and retaliation by BOP officials. Such harassment has included, among other things, the supposed “loss” of his personal belongings including family photographs, frequent loss, delay, or misdirection of legal and personal mail, improper interception and opening of legal mail, and false accusations of misconduct against Mr. Perkins by staff with resulting disciplinary sanctions. Staff also confiscated medical records relating to Mr. Perkins’s 2008 suicide attempt, which, upon information and belief, were
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confiscated merely because they contain information that will embarrass the BOP when it surfaces in this lawsuit.
376. ADX staff members also have insinuated to Mr. Perkins that they have taken or will take revenge on him for his involvement in this litigation by, for example, contaminating his food trays, spreading false rumors among other prisoners that he is a “rat,” and otherwise compromising his well-being. As a result of these veiled threats and the BOP’s prior disregard for his safety, Mr. Perkins has increased anxiety, insomnia, and hyper vigilance.
377. On January 29, 2013, Mr. Perkins requested an administrative remedy claiming he was experiencing depression and suicidal ideation and that he did not get proper treatment. His request was fully exhausted with the BOP Central Office.
378. On October 30, 2013, Mr. Perkins was transferred to USP Atlanta from ADX to participate in the Secure Mental Health Step-Down Program, which was developed to treat male prisoner with serious mental illness (now designated as CARE3-MH). Mr. Perkins’ access to therapists and certain programming improved somewhat following this transfer, but remained constitutionally deficient. In particular, despite BOP policy promising access to stepped-down security for prisoners who like Mr. Perkins followed the rules and participated in the offered programming, he remained in solitary confinement throughout his time in Atlanta, and was afforded neither the necessary care for his mental illness nor even the care that the BOP itself recommended. He also was placed on “suicide watch” for disciplinary reasons, at a time when he was not suicidal and did not need or request observation. He also for a period was assigned to a cell with no heat.
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379. In February 2014, while Mr. Perkins was incarcerated in Atlanta, the BOP diagnosed him with Borderline Personality Disorder, Conduct Disorder, Antisocial Personality Disorder, and Sedative Use Disorder, Mild. The BOP ignored his history of chronic depression, however, and also failed to recognize that his acknowledged history of exposure to violence, along with his acknowledged symptoms, also easily meet the diagnostic criteria for PTSD.
380. As a result of the serious programming and other deficiencies at Atlanta, Mr. Perkins began to deteriorate. He lost at least 27 pounds during his time at USP Atlanta, and his depression deepened.
381. On March 19, 2015, the BOP transferred Mr. Perkins to USP Florence to participate the Secure STAGES Program, which like the Atlanta program was created in direct response to this lawsuit and which was designed for prisoners who have been assigned CARE3MH. It is unclear, at this time, whether Mr. Perkins will have access to constitutionally adequate treatment in the Secure STAGES Program, which opened in late 2014. However, upon information and belief that program is plagued by serious unresolved problems, as a result of which at least one participant has withdrawn his consent to participate in the program, and which may result in the program’s unraveling before its potential is evaluated or realized.
382. In sum, Mr. Perkins has serious mental illness. The conditions of his confinement at ADX caused or contributed to a wide range of psychiatric symptoms. Although he has been assigned to several other programs since leaving ADX, those programs did not provide constitutionally adequate access to mental health treatment.
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L. John Jay Powers 383. John Jay (“Jack”) Powers is 53 years old. He grew up in upstate New York and
lived in Florida immediately before his incarceration. Mr. Powers is serving a sentence for bank robbery and a prison escape, with a release date of July 16, 2030. Mr. Powers resided in the “General Population” Unit at ADX after being held in the Control Unit for nearly ten years. A photograph of Mr. Powers is attached hereto as Exhibit 18.
384. Mr. Powers has serious mental illness, including severe Complex PTSD and a Personality Disorder with Narcissistic, Borderline, and Antisocial Features. While in the custody of the BOP, Mr. Powers has engaged in severe self-mutilation over the past ten years, amputating his own fingers, testicle, scrotum, and earlobes, cutting his Achilles tendon, and trying to kill himself on several occasions. He has not been provided with proper medication or treatment for his serious mental illnesses despite the obvious physical harm Mr. Powers has inflicted upon himself. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs.
385. Mr. Powers entered the custody of the BOP in 1990. At that time, he had never exhibited, nor been treated for serious mental illness.
386. On July 21, 1994, Mr. Powers witnessed the murder of Eddie Wong, another prisoner at USP Atlanta. Three prisoners, whom Mr. Powers believed were members of a prison gang known as the Aryan Brotherhood, stabbed the victim thirteen times. After the attackers left the victim’s cell, Mr. Powers sought to assist him, carrying him down a flight of stairs to the ground floor of the prison. The victim was taken to the hospital but died as the result of his injuries. Following this murder, Mr. Powers was moved to USP Atlanta’s segregation unit
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because, as a witness to the attack, prison officials determined that his safety was compromised. While in segregation, Mr. Powers was threatened by a prisoner he believed to be a senior Aryan Brotherhood member.
387. Mr. Powers subsequently agreed to testify against the three men who had been charged with killing Mr. Wong. He testified twice (the first trial resulted in a hung jury), and the prisoners were convicted. Mr. Powers was transferred to FCI Allenwood, where he was threatened periodically by members of the Aryan Brotherhood as a result of his testimony. Because of the threats, Mr. Powers was placed in protective custody to segregate him from those threatening to kill him. At around the same time, he began to experience symptoms of PTSD, a severe anxiety disorder that can develop after exposure to an event that results in psychological trauma. Mr. Power’s initial symptoms included insomnia and anxiety attacks.
388. In 1997, a BOP psychologist determined that Mr. Powers had PTSD. Thereafter, in January 1999, Mr. Powers was transferred to a medium security prison, where he remained in protective custody. Shortly after his transfer to that facility, Mr. Powers learned that the BOP planned to move him from segregated housing to a general population unit where he was more likely to encounter prisoners who would seek to harm him as a result of his 1995 testimony. He also learned that the U.S. Attorney’s Office would not seek to obtain the sentence reduction as promised in exchange for his testimony. In May 1999, fearful for his own life and safety and suffering increasingly from PTSD, Mr. Powers escaped. After two days he was apprehended and returned to prison. In June 2001, Mr. Powers was tried and convicted of escaping and sentenced to additional imprisonment.
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389. In October 2001, Mr. Powers was transferred to ADX and placed in the Control Unit, where he had been ordered to serve a 60-month term as a result of the escape. Upon entering the ADX Control Unit, Mr. Powers was immediately threatened by individuals he believes to be members of the Aryan Brotherhood, many of whom are housed at ADX. Those threats, and the continuing effects of his untreated PTSD, caused Mr. Powers to slowly descend into madness and horrific self-harm.
390. In July 2002, seven months after arriving at ADX, Mr. Powers rammed his head into the metal door jamb of his cell. Two weeks later, he was transferred to MCFP Springfield for a psychiatric evaluation. BOP records relating to that transfer confirm the belief by clinicians at ADX that while at ADX Mr. Powers “has experienced a great deal of verbal abuse and threats from prisoners in adjacent cells due to their belief that he is an informant.” Mr. Powers spent a month at MCFP Springfield, during which time his PTSD diagnosis was reaffirmed, and he was treated with medication. However, upon his return to the ADX Control Unit in August 2002, his medication was suddenly discontinued. Almost immediately, his self-harm and mutilation began, resulting in disciplinary incident reports for self-mutilation in October 2002, October 2004, and February 2005.
391. On October 13, 2005, he was again transferred to MCFP Springfield after severely lacerating his scrotum with a piece of sharp plastic. His PTSD diagnosis was again confirmed by BOP doctors, and he was again stabilized with medication. But in December 2005 the BOP again returned him to the ADX Control Unit and again abruptly discontinued his medication.
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392. In April 2006, following a meeting with a BOP psychologist, Mr. Powers returned to his cell to discover that his possessions had been moved to a new cell located on a different range. The new range housed Aryan Brotherhood members, who immediately began to threaten Mr. Powers. Mr. Powers broke the glass on his television set, which he used to cut himself. Defendant’s “response team” intervened and placed Mr. Powers in leg irons, handcuffs and a belly chain, which he wore in his cell for several days.
393. On July 18, 2006, Mr. Powers amputated his testicle. 394. In or around 2006, Mr. Powers attempted to commit suicide by ingesting a large quantity of aspirin. 395. On September 6, 2007, Mr. Powers bit off his finger. 396. On April 1, 2008, Mr. Powers inserted a staple into his forehead. 397. In December 2008 he amputated one of his fingers, tore out the stitches used to close the wound, and then swallowed a toothbrush. 398. On February 2, 2009, Mr. Powers cut a triangular flap of skin out of his face and inserted several staples into it. 399. On July 6, 2009, Mr. Powers cut his wrist, bled all over his cell, and was found unconscious and unresponsive by ADX staff members. Several weeks after the suicide attempt, in July 2009, the BOP again transferred Mr. Powers to MCFP Springfield. This time, however, he was not medicated. Rather, despite the BOP’s own multiple prior diagnoses of serious mental illness and the manifest physical evidence of profound mental illness reflected in Mr. Power’s disfigured body, a BOP psychologist determined: “Inmate is not in need of custody for care or treatment. He does not have an active mental disorder. He does not require any further evaluation in an inpatient psychiatric facility.
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Considerations that he has some form of psychosis, thought disorder, or mental illness are unfounded.” 400. Accordingly, in August 2009 Mr. Powers was again returned to ADX and again placed in the Control Unit with no mental health treatment. 401. Four months later, on December 3, 2009, Mr. Powers bit off his pinkie. 402. In 2009 and 2010 Mr. Powers covered most of his body with tattoos that he calls “Avatar Stripes,” which are visible in the photograph attached as Exhibit 18. He created his tattoos by slicing thousands of tiny slits into his skin with a razor blade and rubbing carbon paper dust into the slits. 403. On December 20, 2010, Mr. Powers amputated his scrotum and attempted to suture the wound himself. 404. In March 2011, Mr. Powers completed his term in the Control Unit. Although his original 60-month Control Unit term would have expired in 2006 had he earned credit for each month he served there, because of his serious mental illness he was unable to comply with the strict requirements governing earning credit for time served in the Control Unit. In many instances, he was denied credit for time served because he had mutilated himself. Thus, the ravages of his untreated serious mental illness both caused his permanent disfigurement and extended his term in the Control Unit, where he was housed among and tormented by members of the gang he testified against, pursuant to the directive of the same DOJ for which he provided that testimony. 405. Following his transfer from the Control Unit into the ADX general population, Mr. Powers continued to receive no meaningful mental health care and continued to endure the grotesque symptoms of his mental illness.
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406. On January 12, 2012, Mr. Powers sliced off his earlobes, using pencils as tourniquets.
407. On March 21, 2012, Mr. Powers sawed through his Achilles tendon with a sharp piece of metal, nearly severing it. The injury was surgically repaired and covered with a hard cast. Mr. Powers soon removed the cast and began supporting the injured ankle with a splint he made from a sock.
408. In May 2012, after Mr. Powers had again mutilated his genitals, and only a few weeks after the BOP became aware that he was being evaluated by a psychiatrist retained by his counsel, the BOP began treating him with the powerful antipsychotic medication Haldol. However, he still has no access to psychological counseling or other mental health care, and still remains at ADX, rarely leaving his cell, thinking of suicide daily, and often slashing or cutting himself.
409. In early 2013, Mr. Powers further mutilated his face. 410. As of May 2013 Mr. Powers was being held at MCFP Springfield for evaluation. He remained there until October or November, 2013, when the BOP transferred him to USP Tucson. This transfer appears to have been well intentioned, and many BOP staff members attempted to help Mr. Powers following his arrival. However, the BOP underestimated the ravages of Mr. Powers’ mental illness and decade in solitary confinement, with quite unfortunate consequences. 411. Upon his arrival at USP Tucson, Mr. Powers was assigned, with no transition, to an open housing unit, where prisoners are given significant freedom of movement during the
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day. Having spent 15 years in solitary confinement, he found it very difficult to be around other prisoners, and spent most of his time alone in his cell.
412. In December 2013 he had a verbal disagreement with a staff member. A number of other staff members immediately surrounded him, which caused a fight or flight reaction that resulted in his striking a staff member with his hand. He was subdued and placed back in solitary confinement, where his mental health rapidly disintegrated.
413. Around the same time, his prescription for psychotropic medication was abruptly discontinued. The medication he was taking, Neurontin, is an anti-seizure medication that should never be discontinued abruptly, because of a risk of serious complications including the inducement of seizures. BOP personnel did not heed that risk, and thus exposed Mr. Powers to a serious risk of harm.
414. After a few months more of solitary confinement, Mr. Powers again began to injure himself. In the spring of 2014, he drilled a hole in his scalp with a hollowed out battery, exposing his brain. He was evacuated back to MCFP Springfield on an emergency airlift, and stabilized, although he refused restorative surgery. In the following months, he inserted shards of metal into the hole in his skull, such that they became lodged in his brain.
415. He remained at MCFP Springfield until early 2015, when he was transferred to the newly created Secure STAGES program at USP Florence, although in May 2015 he withdrew his consent to continued treatment in the program due to problems with the delivery of mental health care there.
416. Mr. Powers was making some progress in the Secure STAGES program. That abruptly ended in the early morning hours of June 5, 2015, when representatives of the United
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States Marshals Service removed him from USP Florence and transported him to a private prison in Florence, Arizona that is operated by Corrections Corporation of America (“CCA”). Mr. Powers was then placed in a holding cell in which he believed he was not safe. Mr. Powers asked a staff member to place him in another cell. When the staff member refused, Mr. Powers panicked and was able to escape from the holding cell. He was subdued with chemical munitions, and placed in another cell. CCA staff members then discontinued his psychotropic medication, including gabapentin, an anticonvulsive agent prescribed for his severe neuropathic pain and for his PTSD. Gabapentin should never be discontinued abruptly because of a wellknown risk of inducing seizures. Mr. Powers is aware of that risk because of previous episodes in which BOP personnel have abruptly discontinued the medication. Given this history, the discontinuation of Mr. Powers’ gabapentin, combined with the trauma of being placed in a cell with prisoners whom he reasonably believed posed a serious risk to his safety, put Mr. Powers into a state of severe psychological distress. As a result, when left alone in a cell Mr. Powers secured several pieces of metal and pushed one deep into his brain (through the hole in his skull referred to above) and at least two others into his abdomen. His condition was unknown at the time this pleading was filed.
417. The DOJ, of which both the BOP and the Marshals Service are a part, exhibited nearly total disregard of Mr. Powers’ serious medical needs by removing him without warning from a residential mental health treatment program, allowing his placement in a holding cell in which he did not believe himself to be safe, failing to inform its agents at CCA of Mr. Powers’ tortured history and care needs, and failing to ensure his continued access to necessary psychotropic medication.
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418. The BOP has made some efforts to treat Mr. Powers’ profound mental illness. However, those efforts do not meet constitutional standards, particularly when coupled with the BOP’s continued insistence on housing Mr. Powers in near-total isolation, which exacerbates his symptoms and interferes with meaningful treatment. M. Arnell Shelton
419. Arnell Shelton is 33 years old. He has been housed at ADX since August 2006. Before his incarceration, he was a resident of Washington, D.C. His current BOP release date is September 6, 2018. A photograph of Mr. Shelton is attached hereto as Exhibit 19.
420. Mr. Shelton has mental illness and may have serious mental illness. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs. At various times, Mr. Shelton has been diagnosed with various mental disorders, including Histrionic and Antisocial Personality Disorders, Exhibitionism, Adjustment Disorder, and Major Depressive Disorder. He has engaged in self-injury and has a history of suicide attempts preceding his ADX placement.
421. At the age of five or six, Mr. Shelton sustained a closed head injury when he was hit by a car. He lost consciousness as a result and was hospitalized for three days.
422. Mr. Shelton has a family history of alcoholism and drug abuse in several relatives, including an uncle who was hospitalized for a psychiatric disorder. Beginning at age eight, Mr. Shelton started using alcohol and marijuana. He subsequently dropped out of the seventh grade and supported himself by selling crack cocaine. Mr. Shelton was first evaluated for mental health issues as a juvenile when he was detained in a juvenile detention center.
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423. At the age of 17, his then 22-year-old girlfriend became pregnant. After his daughter was born, he worked as an electrical assistant to support his family. His spouse and daughter reside in Maryland. The last visit he had with his daughter was in 2004.
424. In January 2001, Mr. Shelton was tried in Washington, D.C. for charges related to a drive-by shooting. While in pre-trial detention, he attempted to hang himself. His first trial resulted in a hung jury, but after a second trial, Mr. Shelton was convicted on all counts: assault with intent to kill while armed, aggravated assault while armed, two counts of possession of a firearm during a crime of violence, carrying a pistol without a license, and malicious destruction of property.
425. Mr. Shelton began his sentence at FCI Cumberland in 2001, and was then transferred to USP Beaumont.
426. In March 2005, while incarcerated at USP Beaumont, Mr. Shelton threw urine and feces on a correctional officer. He pled guilty to charges of forcibly assaulting and/or impeding a correctional officer in the performance of his duties. He was sentenced to 36 months and transferred to USP Marion, where he was confined with a number of prisoners with a history of severe mental illness.
427. In August 2006, the BOP repurposed USP Marion and transferred approximately 70 prisoners, including Mr. Shelton, to ADX. Many of the transferred prisoners had a mental illness, in violation of the BOP’s written policy prohibiting housing of prisoners with mental illness at ADX. Like many other prisoners with mental illness, Mr. Shelton’s multiple interactions with the mental health staff at ADX have not addressed his mental illness effectively.
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428. In May 2009, Mr. Shelton reported increased irritability, depressive symptoms, anhedonia, and irregular sleep. The following month, he was diagnosed with Depressive Disorder NOS and prescribed Prozac. Due to side effects, this medication was subsequently changed to Zoloft.
429. In July 2009, Mr. Shelton was placed on suicide watch after ingesting 35 tablets of Zoloft. While on suicide watch, Mr. Shelton told staff that “there will be no reason for going on living” unless he were transferred to a facility closer to his spouse and young daughter.
430. In August 2009, Mr. Shelton filed a Motion for Writ of Mandamus, alleging a Fifth Amendment Due Process violation and a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment for being housed at ADX while he experienced severe depression. Mr. Shelton’s motion was dismissed without prejudice for failure to cure pleading deficiencies and failure to prosecute.
431. In a September 2009 court filing, Mr. Shelton complained of severe depression, for which he was being medicated. He claimed that he had attempted suicide on multiple occasions, both before and after arriving at ADX, and that he had received prescriptions for antidepressants while at ADX, but was often reluctant to ask for medication because he was afraid of later overdosing deliberately.
432. In April 2010, Mr. Shelton, who had attempted to kill himself a few months earlier, was placed in the SHU after exposing himself and throwing milk at a corrections officer. Officers assigned Mr. Shelton to a cell that had just been vacated by another prisoner notorious for having chronic mental illness who had smeared feces on the floors, walls, bed, and mattress of the cell. Mr. Shelton was given no cleaning supplies, and was not issued a blanket, towel, or
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sheet. He used the roll of toilet paper in the cell to try to wipe the feces off of a spot on the bare concrete floor that was large enough for him to lie down. He remained lying on that single “clean” space for two days. He then covered the Plexiglas wall in his cell with newspapers to block the view from the hallway and prepared to hang himself with his shoelaces. Before he succeeded in doing so, an “emergency response team,” assembled, forcibly entered the cell, restrained him, and moved him to another cell. There, he was placed in four point restraints for 24 hours, during which time he was unable to reach the food left for him on the desk.
433. Mr. Shelton was placed on suicide watch on May 5 and May 11, 2010, after letters to his family and others revealing plans for suicide were intercepted. Following the first suicide watch, Mr. Shelton’s public defender filed an Emergency Motion for a Reduction of Sentence based on Mr. Shelton’s mental state. After Mr. Shelton’s sentencing judge contacted the BOP and learned that Mr. Shelton’s working diagnoses at ADX were Exhibitionism and Antisocial Personality Disorder, the motion was denied. At the time of his second suicide watch, various mental health professionals described him as expressing hopelessness, being irritable and despondent with a flat affect and reiterating his intent to die. However, Mr. Shelton was not transferred to a medical center because, according to Dr. Zohn, “he has no evidence of a psychotic disorder to major mood disorder.” His suicide watch was continued.
434. On May 16, 2011, Mr. Shelton asked to speak with a psychologist because despite one year of good conduct, he was denied the opportunity to transfer to the step-down unit because of “poor rapport” with the staff.
435. In November 2012, a week after his father passed away, Mr. Shelton swallowed a razor and hoped it would “cut him on the way down his throat.” As a result, Mr. Shelton was
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placed in the SHU and then in a dry cell. During that period, he began a hunger strike and refused to take his prescribed antidepressant.
436. Mr. Shelton remained despondent over the fact that he had not been allowed to transfer to the step-down unit. In early 2013, the BOP diagnosed Mr. Shelton with Depressive Disorder NOS with “lower moods and increased disillusionment.” In February 2013, Mr. Shelton remained “frustrated, angry and stressed” leading to a suicide risk assessment. He was also characterized as having “mild paranoia.”
437. In April 2013, Mr. Shelton continued to exhibit suicidal behavior and initiated another hunger strike. His documented diagnosis was Depressive Disorder NOS and Personality Disorder NOS with antisocial features. In May 2013, after he ingested several tubes of toothpaste, he was placed in the SHU with property restrictions, where he complained of difficulty sleeping due to the odor of urine around him.
438. At the end of June 2013, he was provided with Dialectical Behavior Therapy material that he worked on and he agreed to participate in group therapy, but withdrew a few months later.
439. On April 4, 2014, Mr. Shelton ingested an undetermined number of pills and was found unresponsive. When he was evaluated in the emergency room, it was discovered that he had ingested up to 100 tablets of Zoloft. Mr. Shelton received an incident report for this suicide attempt. On the same day, BOP records documented that he was diagnosed with Major Depression, Chronic, a serious mental illness that under BOP policy precludes housing him at ADX.
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440. On May 19, 2014, Mr. Shelton swallowed a razor and was placed on suicide watch in a dry cell. When staff refused to give him a vessel in which to relieve himself, he urinated on the floor. Some of the urine ran under the door, which staff members attempted to block with a jumpsuit. Mr. Shelton pulled the jumpsuit into his cell and fashioned a noose. The BOP responded by forcibly subduing Mr. Shelton.
441. On May 20, 2014, Mr. Shelton complained of hearing voices and wanted to cut holes in his veins. He was assessed the next morning and disclosed that being alone with his thoughts, and a fear of failing his family, along with the conditions at ADX, were factors contributing to his suicidality.
442. In July 2014, Mr. Shelton was mostly confined in the SHU. As part of his CARE2-MH status, he was evaluated on July 9, 2014. He appeared with an “agitated mood and restricted affect,” and was reported to have poor insight and judgment but no suicidal ideation. That same day, he was evaluated for threatening to kill himself. Mr. Shelton again reported suicidal ideation later that month. He was diagnosed with Adjustment Disorder and Antisocial and Histrionic Personality Disorders
443. In August 2014, Mr. Shelton was among more than 130 ADX prisoners selected, based on indicia of mental illness, for evaluation by the BOP. Mr. Shelton was diagnosed with Antisocial Personality Disorder and assigned care level CARE2-MH. At that time, BOP determined that Mr. Shelton requires outpatient care for mental health concerns. BOP also suggested that Mr. Shelton would benefit from a behaviorally-focused program, which is designed for personality dysfunction rising to the level of serious mental illness.
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444. In October 2014, Mr. Shelton went on an extended hunger strike, missing a total of 35 meals. He was placed on suicide watch at least twice that month. In January 2015, Mr. Shelton went on another hunger strike and missed a total of 16 meals. Prison staff initiated a calculated use of force and exposed him to a chemical munition before he surrendered to restraints.
445. Mr. Shelton was seen in Health Services on February 6, 2015, and was described to have an erratic mood with moderate anxiety. He reported weight loss, appeared agitated and distressed, paranoid, guarded, and suspicious. He repeatedly requested to be transferred out of ADX. A psychiatric evaluation that month again diagnosed him with an Adjustment Disorder and Histrionic Personality Disorder.
446. In sum, Mr. Shelton has mental illness and may have serious mental illness. The conditions of his confinement at ADX have caused or contributed to a wide range of psychiatric conditions that, unless treated, will lead to further deterioration, and may lead to suicide. Mr. Shelton continues to receive constitutionally inadequate mental health treatment. BOP’s continued neglect of Mr. Shelton’s mental health needs violates BOP policy and the Eighth Amendment. N. Marcellus Washington
447. Marcellus Washington is 43 years old. He spent most of his youth in New Jersey. He is serving a life sentence at ADX and is currently housed in the Control Unit. Mr. Washington has a serious mental illness, including a severe Mood Disorder and a Mixed Personality Disorder with Borderline and Antisocial Features. He also exhibits signs and symptoms of PTSD and is mentally disabled and functionally illiterate. As detailed below, BOP
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has demonstrated deliberate indifference to his mental health needs. A photograph of Mr. Washington is attached as Exhibit 20.
448. Since childhood, Mr. Washington has been treated on multiple occasions for mental illness. During the late 1970s and/or early 1980s, Mr. Washington was treated with Thorazine and Mellaril, two powerful antipsychotic medications. Early psychiatric and psychological evaluations showed that Mr. Washington had mood swings which stemmed, at least in part, from mental disability and massive parental deprivation. Mr. Washington was placed in his first group home when he was seven years old, because his mother, who had severe mental illness, could not care for him. He subsequently lived in, and ran away from, various foster homes, group homes, and residential facilities. In 1982, when he was ten, Mr. Washington was returned briefly to the care of his mother, who soon abandoned him with his siblings on a New York City park bench. Between 1977 and 1985, various child study teams affiliated with the New Jersey Board of Education and its school districts found deficiencies in Mr. Washington’s emotional, social, and academic functioning. Specifically, these teams found that Mr. Washington has a neurological impairment, suffered the effects of environmental deprivation, and exhibited mood swings that ranged from a manic hyperactivity to a depressed lethargic mood. Prior to the age of 13, Mr. Washington spent time at the Jersey City Medical Center Community Mental Health Clinic and the Arthur Brisbane Child Treatment Clinic, a public psychiatric hospital for children.
449. In 1996, during his trial for armed robbery and carjacking, Mr. Washington was housed in the Office of Interstate Services in New Jersey and was treated with high dosages of the antidepressant Sinequan. Upon his conviction, Mr. Washington was transferred to USP
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Lompoc and, in October 2001, to USP Pollock. Based on his intake processing at USP Pollock, the BOP recognized that Mr. Washington experienced symptoms of depression and had suicidal tendencies. In 2001 and 2002, Mr. Washington received psychotherapy sessions for his depression.
450. On April 8, 2002, Mr. Washington visited the psychology unit at USP Pollock and requested care urgently. He met with Dr. Gallagher, a BOP staff psychologist, and requested treatment for mental illness based primarily on his stress levels and his contemplation of suicide. Mr. Washington showed Dr. Gallagher five or six superficial cuts around his wrist and informed Dr. Gallagher that he did not think he was capable of killing himself, but he was considering provoking someone else to kill him. Dr. Gallagher did not conduct a full suicide assessment or psychological workup, but merely scheduled an appointment with Mr. Washington for the following week. Dr. Gallagher also failed to place Mr. Washington on suicide watch or refer him for a more complete psychiatric evaluation. Two days later, Mr. Washington assaulted a BOP administrator.
451. In November 2002, in connection with his trial for the assault, Mr. Washington was evaluated by Drs. Kevin J. McBride and Anthony A. Jimenez at FMC Butner. This evaluation concluded that Mr. Washington had severe Antisocial Personality Disorder, has a mental disability, and has moderate congenital brain impairment. The report noted that Mr. Washington’s prior records reveal that he has trouble adapting to the prison environment, is functionally illiterate, exhibits emotional, social, and academic deficits, and had been treated with various antipsychotic medications and antidepressants prior to his incarceration with the BOP. A second evaluation was conducted in June 2003 by Dr. Thomas Fain at USP Pollock,
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during which Dr. Fain conducted various mental assessments of Mr. Washington. In the spelling and reading subscales of the Wide Range Achievement Test-3, Mr. Washington performed in the 0.02 percentile. The Wechsler Adult Intelligence Scale-III indicated that Mr. Washington was mentally disabled, and various other tests indicated the presence of a congenital brain impairment.
452. Since at least 2002, Mr. Washington has been observed engaging in self-harm, often by cutting himself. Prior to his transfer to ADX, Mr. Washington attempted to commit suicide by trying to hang himself in the USP Pollock SHU. The BOP staff took him to an observation cell, where he was visited by Dr. Gallagher. Upon obtaining a promise from Mr. Washington that he would not attempt to kill himself, Dr. Gallagher had Mr. Washington returned to the SHU without further treatment. Following his transfer to ADX, an ADX employee reported observing that Mr. Washington twice cut his wrist with a razor blade. The Operations Lieutenant was notified of Mr. Washington’s behavior, and Mr. Washington was punished for his suicide attempt with a seven day loss of his television and radio privileges. He did not receive any treatment for mental illness.
453. In November 2011, Mr. Washington filed a Request for an Administrative Remedy, complaining that the BOP ignored evidence of his mental illness, his history of depression, and his suicidal tendencies when it referred him for placement in the Control Unit. He also complained that he has never received adequate treatment for these conditions. His request was denied, as were his appeals from that denial.
454. In August 2014 Mr. Washington was evaluated by a psychiatrist and psychologist selected by the BOP. They assigned him a care level CARE2-MH, a diagnosis of Antisocial
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Personality Disorder, and suggested further analysis to confirm or rule out a diagnosis of Borderline Intellectual Functioning. They also noted that Mr. Washington “needs [an] individualized plan to address the above noted concerns.” The BOP thus acknowledges that Mr. Washington has mental illness that requires care. Yet as of May 2015 he continues to be denied meaningful access to even basic mental health services in violation of BOP policies and the Eighth Amendment.
VIII. ALLEGATIONS RELATING SPECIFICALLY TO THE INTERESTED INDIVIDUAL
455. At relevant times, Interested Individual David Shelby was incarcerated at ADX. He has a serious mental illness. ADX’s failure to implement adequate programs of mental health screening and treatment has violated his constitutional rights, exacerbated his serious mental illnesses, and subjected him to harm and injury.
456. Mr. Shelby requested, in various ways, mental health care at ADX. Because of his impairment, however, it is not clear whether he was able to complete every action necessary to exhaust administrative remedies to the extent required by the PLRA.
457. Counsel’s inability to ascertain the Interested Individual’s exhaustion status stems from several factors. First, Mr. Shelby has mental illness, and that illness impairs his ability to recall and report every effort he may have made to exhaust administrative remedies.
458. Second, the BOP’s mismanagement of the care and custody of prisoners at ADX with serious mental illness is exacerbated by the absence of any effective mechanism for those prisoners to address concerns or complaints they have about inadequate medical treatment or staff misconduct towards prisoners with mental illness and others. Although the BOP ostensibly maintains an “administrative remedy” process that allows prisoners to complain about various
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issues, the administrative remedy process is itself a kangaroo court that throws bureaucratic roadblocks at prisoners’ feet and that is wholly inadequate as a means of addressing serious concerns, including complaints about constitutionally inadequate mental health care services at ADX.
459. Upon information and belief, and by way of illustration only, ADX staff members deny prisoners access to forms that the BOP requires prisoners to use to submit complaints, “lose” administrative remedy paperwork or delay its submission so that prisoner appeals are deemed “untimely,” fail to adequately investigate prisoner complaints, and fail to remedy obvious problems brought to the BOP’s attention by means of those prisoner complaints that do evade the impediments imposed by the BOP itself.
460. In addition, prisoners have no effective access to a “watchdog” to investigate and address misconduct by correctional staff. Specifically, at the time this action was filed all corrections functions at ADX were the responsibility of Captain Russell Krist, a veteran BOP correctional officer. Like most other BOP facilities, ADX also employs a Special Investigative Agent (“SIA”) whose responsibilities include investigating allegations of misconduct by ADX staff. Accordingly, at least in theory, the SIA’s presence at ADX gives prisoners on-site access to a BOP official with the power to investigate and initiate remedies for staff mistreatment of prisoners, including those with mental illness. As of the time this action was filed, that theoretical access was, for ADX prisoners, a cruel hoax.
461. Specifically, the BOP destroyed any semblance of an effective watchdog function at ADX by assigning the SIA role to Dianna Krist, who is the wife of Captain Russell Krist.
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Thus, at ADX, the watchdog was married to the person whose staff the watchdog is responsible for investigating.
462. The BOP’s own written policy specifically prohibits its employees from involvement in “situations where their official actions affect or appear to affect their private interests, financial or non-financial.” BOP Program Statement OCG 3420.09 § 20. The same policy prohibits BOP employees from “taking official action on matters that affect the financial interests of the employee [or] a spouse.” BOP’s employment of Mrs. Krist as ADX’s SIA violated the letter and spirit of Program Statement OCG 3420-09 and fatally compromised the ADX process for resolving the staff misconduct alleged in this lawsuit.
463. In December 2012, approximately seven months after this lawsuit was filed, Capt. Krist and Mrs. Krist were both removed from their positions at ADX. Upon information and belief, their removal resulted from the exposure of the conflict of interest identified in the Complaint. Although the Krists have both been replaced, intervening events make clear that their removal has not restored any effective watchdog function to the ADX. And, more importantly, the corrupt legacy of their tenure has significantly impaired the ability of Class Plaintiffs and other ADX prisoners to utilize the SIA’s watchdog process to remedy staff misconduct.
464. Particularly when considered in combination with the wholly ineffective administrative remedy process described above, the ineffective SIA function at ADX contributes substantially to an atmosphere in which ADX staff can and do abuse and neglect ADX prisoners with mental illness, including the Interested Individual, without any effective oversight or prisoner recourse.
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465. As detailed above, for years ADX prisoners have been begging for adequate mental health treatment, through administrative filings and lawsuits, among other means. That the ADX mental health system remains in shambles is plain evidence that no real remedy is available through further administrative filings.
466. A third reason that Plaintiffs’ counsel has been unable to ascertain the exhaustion status of Mr. Shelby is that despite counsel’s best efforts to assist him to exhaust available remedies, the conduct of certain ADX staff members has made it virtually if not actually impossible for him to complete the process. For example, Mr. Shelby was talked into signing some sort of agreement (he is not sure what it was) that allegedly resolves his administrative remedy request. It remains unclear what he signed or who talked him into signing it, but the circumstances strongly suggest the imposition of undue influence on a profoundly damaged person, and in any event Mr. Shelby apparently has not yet completed the administrative remedy process.
467. Whether or not he fully exhausted available remedies, Mr. Shelby will remain involved in this case in some capacity, either as a Plaintiff or as a witness.
468. David Shane Shelby is 50 years old. His current BOP release date is January 5, 2022. Immediately before his incarceration he lived in Utah. Mr. Shelby has a serious mental illness, Bipolar Disorder. A photograph of Mr. Shelby is attached hereto as Exhibit 21. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs.
469. Mr. Shelby was housed at ADX from October 2000 until early 2014. He currently is serving a 24-year sentence for a 1996 conviction for making threats against the President, in
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addition to other felonies, and a consecutive 80-month sentence resulting from his 1997 attempted “suicide by officer.”
470. Mr. Shelby was raised in a family wracked by extreme poverty and mental illness. He was raised by his mother, who had a serious mental illness. When Mr. Shelby was 16 years old, he attempted suicide through an overdose of sleeping pills and whiskey.
471. In 1989, Mr. Shelby was sentenced to imprisonment at the Westville Correctional Center in Indiana. During his incarceration, Mr. Shelby attempted to burn another prisoner with a torch constructed from a mop stick. Mr. Shelby claimed that God had directed him to make the torch and burn the other prisoner.
472. As a result of the incident, a mental status examination was performed in September 1989, during which Mr. Shelby stated that “he did not exactly hear voices; but more like -- heard feelings.” The mental health examiner concluded that Mr. Shelby may have experienced an acute psychotic episode -- Schizophreniform Disorder in remission.
473. Mr. Shelby was released on parole in 1992. In December 1994, Mr. Shelby mailed threatening letters to the President of the United States as part of a plan by Mr. Shelby to secure the release of Charles Manson from prison. A few weeks later, in January 1995, he was arrested in Ogden, Utah, while attempting to mail several packages. One of the packages was addressed to the President of the United States and contained a modified light bulb that had been filled with smokeless gunpowder, a pocket knife, and a note reading, “I think you are doing a good job and I am sending you the pocket knife as a gift and a light bulb so that you won’t strain your eyes.” A second package, addressed to Charles Manson, contained a revolver with a fork affixed to its end to be used as a bayonet, a straight razor, and two explosive devices.
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474. Mr. Shelby was charged with making threats against the President of the United States, illegal possession of firearms/destructive devices, and possession of a firearm. In a mental health evaluation conducted while at the Salt Lake County Jail, Mr. Shelby described how “voices” had instructed him to “Help Charlie [Manson]” and that “if Charlie was President, he could set me free.”
475. In connection with his prosecution and court-ordered mental health evaluation, Mr. Shelby was sent to MCFP Springfield, where he underwent a psychiatric evaluation for a period of approximately three months. While at MCFP Springfield, Mr. Shelby attempted to commit suicide by ingesting a mouthful of Lysol and later by ingesting a mouthful of Bon Ami cleanser. He stated that he attempted suicide because he “began to be concerned he might actually be mentally ill” and also reportedly stated that he “did not want to die, but if God wants me to do it, it’s like a commandment.” According to the subsequent forensic report, Mr. Shelby was treated with an antipsychotic medication and was diagnosed with alcohol abuse and Schizotypal Personality Disorder that is “not regarded as a mental disease or defect by most authorities.”
476. After Mr. Shelby returned to Salt Lake County Jail in August 1995, he voluntarily surrendered a knife constructed of wire and wrapped with a leather shoelace and reported to jail personnel that he had impulses to murder another prisoner. He reportedly told a mental health worker that “they tell me I’m not crazy . . . then the voice of God I hear, telling me to kill all the baby rapers, must be real. God told me to kill Ryan because he is the lowest of them all.”
477. In January 1996, Mr. Shelby was ordered to undergo a second mental health evaluation. The second evaluation concurred with the prior diagnosis of Schizotypal Personality
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Disorder, noting that much of Mr. Shelby’s psychotic illness “appears to be controlled with the medication.”
478. Mr. Shelby pled guilty to charges relating to his January 1995 arrest, and was sentenced to 288 months in the custody of the BOP. At his sentencing hearing, Mr. Shelby reportedly stated, “For quite some time in my life, I have been listening to voices in my head that I thought came from God . . . . The terrible crimes I have committed were because I believed they were commandments of God.”
479. Mr. Shelby spent approximately one year of his sentence as a prisoner at USP Florence. In June 1996, Mr. Shelby requested discontinuation of his medication, which at the time included the antipsychotic Navane and Cogentin, which helps reduce certain side effects of Navane. After his medication was discontinued, Mr. Shelby was given no other psychiatric or mental health treatment.
480. In early 1997, Mr. Shelby was transferred to USP Atlanta. A few months after his arrival, Mr. Shelby took a staff member hostage in the institution’s kitchen with a homemade knife, in an effort to provoke the prison staff to kill him -- a scenario known as “suicide by officer.” Mr. Shelby was not killed in the incident, but rather was subdued and charged with assault of a U.S. penitentiary employee with a dangerous weapon. In a statement about the incident, Mr. Shelby reported:
On July 23, 1997, while I was a prisoner at the United States Penitentiary in Atlanta, I held Ms. Ross, a prison staff person, hostage with a knife. It was never my intention to harm anyone. This was a suicide attempt. I did this in hopes that the staff would shoot me. I have problems with depression and I was not receiving the proper medication at the time of this incident.
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481. In May 1998, during his prosecution for assault of a U.S. penitentiary employee, the Court ordered a psychiatric evaluation of Mr. Shelby at USP Talladega. Upon information and belief, at the time of his evaluation, Mr. Shelby continued to have severe, chronic and untreated Bipolar Disorder. In the BOP evaluation, Mr. Shelby was diagnosed with Major Depressive Disorder, currently in remission; Alcohol Dependence in sustained, full remission in controlled environment; history of hallucinogen abuse; Personality Disorder NOS (schizotypal and antisocial traits); and history of head injury. Mr. Shelby was found competent to stand trial.
482. Mr. Shelby also later again was evaluated at MCFP Springfield. At MCFP Springfield, Mr. Shelby was diagnosed with Major Depression, in full remission; Alcohol Dependence; Personality Disorder NOS (schizotypal and antisocial traits); and post mild closed head injury. Thereafter, Mr. Shelby pled guilty to charges stemming from his attempted “suicide by officer” and was sentenced to 80 months of confinement in BOP custody, to run consecutive to his original federal sentence. As part of the sentence, the court recommended that Mr. Shelby participate in a mental health treatment program during his incarceration.
483. Mr. Shelby was transferred to ADX in 2000 and placed in the ADX general population. During his time at ADX, Mr. Shelby experienced continuing symptoms of Bipolar Disorder, as a result of which he engaged in a pattern of bizarre, erratic, and harmful behavior.
484. In or about 2009, Mr. Shelby attempted suicide. Upon information and belief, at the time of this suicide attempt, Mr. Shelby was in the throes of psychosis caused by his as-yet untreated Bipolar Disorder. Mr. Shelby heard the Bob Dylan song “Knocking On Heaven’s Door” playing on the radio and understood the song to be a message “calling him home.” He responded by sitting down in a shower and severely cutting both arms, both legs, and his belly
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using glass from a broken television. Sometime later, ADX staff discovered him bleeding and in a semi-coherent state. His wounds were bandaged at the ADX medical facility and he was returned to a standard ADX cell.
485. After his suicide attempt, a BOP psychologist diagnosed Mr. Shelby as having Bipolar Disorder. He was thereafter prescribed the anti-manic medication Depakote and the antidepressant Zoloft. Although the medications have helped Mr. Shelby cope with his serious mental illness, they have not resolved his periodic psychotic episodes and his hallucinations.
486. For example, later in 2009, Mr. Shelby heard a voice, which he took to be God’s voice, commanding him to eat his finger. In response, Mr. Shelby amputated his left pinky finger approximately 1/2 inch from where the pinky joined his hand, and cut the finger into small pieces, which he added to a bowl of ramen soup and ate. ADX staff discovered him bleeding in his cell, and one ADX staff member asked him how his finger tasted.
487. In early 2010, Mr. Shelby was transferred to the ADX Step-Down Program. He maintained clear conduct during stays in the Joker Unit and Kilo Unit, and was transferred to the final stage of the Step-Down Program, which is located at the USP Florence. In September 2011, while looking at a friend largely confined to a wheelchair, Mr. Shelby inexplicably saw what he believed to be “devil horns” on his friend’s forehead. Mr. Shelby began choking his friend, and was subdued, restrained, and returned to ADX. After spending several months in disciplinary segregation in the SHU, Mr. Shelby returned to the General Population Unit, where he remained until his transfer to MCFP Springfield and then to FCI Butner, a special needs unit in North Carolina.
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488. Mr. Shelby has benefitted from treatment and kindness of many BOP staff members in Springfield and Butner. His medication regimen has been stabilized, his conduct is excellent, he has a job and great rapport with staff, and for the first time during his BOP incarceration he is receiving constitutionally adequate mental health care. Indeed, he is a perfect example of the reality that even dangerous prisoners can be safely treated by the BOP, where the will to provide such treatment exists.
IX. ALLEGATIONS RELATING TO THE CENTER FOR LEGAL ADVOCACY 489. The Center for Legal Advocacy d.b.a. Disability Law Colorado (“CLA”), is a
non-profit corporation headquartered in Denver, Colorado. Plaintiff was designated in 1977 by Governor Richard Lamm as Colorado’s protection and advocacy system (P&A System) to protect and advocate for the rights of persons with developmental disabilities under subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. §§ 15041 et seq. Since 1986, CLA has received federal allotments-grants on an annual basis, and has established and administered a P &A System in Colorado for individuals with mental illness pursuant to 42 U.S.C. §§ 10803 and 10805 of the Protection and Advocacy for Individuals with Mental Illness Act, (PAIMI Act). Since 1986, CLA has been and is currently the eligible P&A System for individuals with mental illness in Colorado as defined at 42 U.S.C. § 10802(2).
490. CLA has associational standing to bring this lawsuit. CLA is the functional equivalent of a voluntary membership organization that was created by Congress to protect and advocate for its Colorado Constituents, which include ADX prisoners with significant mental illness or emotional impairment who are being abused, neglected and subject to civil rights violations by being denied Constitutionally guaranteed necessary and appropriate mental health
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treatment. CLA’s Colorado Constituents possess many indicia of membership, to include influencing what issues CLA takes on in the performance of its federal mandate, some of which are alleged in the following paragraphs.
491. CLA publishes the annual PAIMI Program Priorities and Objectives on its website inviting Constituents to comment on their relative importance to CLA’s statutory charge to protect and advocate for individuals with mental illness.
492. CLA has a governing board of directors, which is composed of members who broadly represent and who are knowledgeable about the needs of individuals with mental illness. CLA’s board of directors includes members who have received or are receiving mental health services or family members of directors who have received or are receiving mental health services.
493. CLA has established a PAIMI Advisory Council which advises the P&A System on the policies, priorities and objectives designed to protect and advocate for the rights of CLA’s Constituents - individuals with a significant mental illness or emotional impairment.
494. The PAIMI Advisory Council includes attorneys, mental health professionals, members of the public who are knowledgeable about mental illness, a provider of mental health services, and individuals who have received or are receiving mental health services or who have family members who have received or are receiving mental health services. Over sixty percent (60%) of CLA’s PAIMI Advisory Council consists of members who have received or are receiving mental health services or who have family members who have received or are receiving mental health services.
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495. CLA’s PAIMI Advisory Council is chaired by an individual who themselves or a family member has received or is receiving mental health services. CLA’s PAIMI Advisory Council chairperson and one council member are also members of CLA’s governing board of directors. Together, CLA’s board of directors and CLA’s PAIMI Advisory Council with assistance of PAIMI Program staff develop the annual priorities and objectives of the P&A System.
496. CLA’s PAIMI Advisory Council meets six times per year. At these meetings, the Advisory Council discusses issues that concern abuse, neglect and rights violations, as well as the delivery of mental health treatment, to CLA’s Constituents throughout Colorado. These meetings are attended by members of the public who are interested in mental health issues, CLA’s PAIMI program staff, its Legal Director and Executive Director. At these meetings PAIMI program staff report on priority casework and recent developments concerning abuse, neglect and rights violations involving CLA’s Constituents.
497. Prior to the April 2013 PAIMI Advisory Council meeting, a meeting reminder notice was sent to interested members of the public and all council members that included links to the “SuperMax ADX” litigation. Everyone who received the notice was encouraged to read the information provided at these websites to facilitate discussions at the Council meeting.
498. At the April 2013, PAIMI Advisory Council meeting PAIMI staff reported on the lack of mental health treatment for prisoners at the U.S. Bureau of Prison’s ADX facility in Florence, Colorado. It was reported to attendees and the PAIMI Advisory Council that the denial of necessary mental health treatment to a federal prisoner, diagnosed with a significant mental illness or emotional impairment can be a violation of the Eighth Amendment’s cruel and unusual
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punishment clause, a serious matter that CLA needed to address. The council members and attendees were also informed by PAIMI staff that reports had been received about prisoners with mental illness who had committed suicide, engaged in self-harming behaviors, were catatonic in their cell, were smearing feces about themselves and their cells and some were screaming out at all hours of the day and night. The PAIMI Advisory Council was shocked by these revelations and thought that something should be done to remedy the situation.
499. Following the April PAIMI Council meeting a new PAIMI Program Priority was circulated to and adopted by both the PAIMI Advisory Council and CLA’s governing board. Program Priority 4 directs CLA to investigate and monitor complaints and reports of abuse, neglect and rights violations from PAIMI eligible individuals confined in the ADX facility. Program Priority 4 further directs CLA to take appropriate action, including litigation, to correct any abuse, neglect, or rights violations involving ADX prisoners.
500. As of June 15, 2015, CLA has received requests for representation from or on behalf of six current or former ADX prisoners. Five of those prisoners, James Cole, William Harris, David Hearne, William Sablan, and James Van Noy have personally requested DLC’s assistance. The mother of prisoner Jonathan Francisco requested assistance on his behalf, as his attorney in fact.
501. Each request for representation indicates that the Constituent has a significant mental illness or emotional impairment and calls upon CLA to take action to ensure these prisoners receive necessary and appropriate mental health treatment.
502. CLA has established a grievance procedure for Constituents and prospective Constituents, which allows individuals with mental illness and family members of such
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individuals to assure themselves that CLA and the PAIMI Program are operating in compliance with the provisions of the PAIMI Act. The Legal Services Committee of CLA’s governing board makes the final decision on Constituent grievances.
503. CLA is sufficiently identified with its Constituents and subject to their influence, which is demonstrated by CLA’s actions, after receiving reports of abuse, neglect, and rights violations at ADX. CLA adopted a new PAIMI Program Priority by joint action of the PAIMI Advisory Council and governing board to address the reports of abuse, neglect, and rights violations occurring at ADX. CLA has allocated its limited resources, both personnel and financial-using only nonfederal funds, to investigate and file this lawsuit to stop the abuse, neglect, and rights violations experienced by all PAIMI eligible ADX prisoners. CLA staff traveled from Denver to Florence, Colorado, spending two days interviewing Constituents at the ADX. CLA staff have also spent numerous hours reviewing the pleadings in the Cunningham and Vega cases; attending partner conferences where prisoner complaints and case strategy are discussed; attending numerous settlement conferences negotiating policy changes and settlement terms; reviewing prisoner letters reporting or complaining about ongoing abuse, neglect, and rights violations at ADX; reviewing media reports about ADX’s treatment of prisoners with significant mental illness or emotional impairment; conducting legal research; and drafting portions of the First and Second Amended Complaints.
504. When CLA’s Constituents are abused, neglected, and their Constitutional right to receive necessary and appropriate mental health treatment is violated, CLA has the authority to pursue administrative, legal, and other appropriate remedies to ensure the protection of these vulnerable individuals. This lawsuit seeks to remedy the abuse, neglect, and rights violations
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inflicted on CLA’s Constituents at the ADX facility and elsewhere by agents of the U.S. Bureau of Prisons. Specifically CLA’s authority to sue the U.S. Bureau of Prisons for the relief sought is conferred by federal law. See 42 U.S.C. §10804(c); 42 U.S.C. §10805(a)(1)(A) & (B); and 42 U.S.C. §10807.
505. CLA is not required to exhaust the Bureau of Prisons “Administrative Remedies Program” (ARP) under the PLRA, 42 U.S.C. §1997e(a). CLA has met its exhaustion burden concerning administrative remedies, under 42 U.S.C. §10807, based on the following facts: (1) Administrative remedies are not appropriate in this case, because there are no administrative remedies available. The U.S. Bureau of Prison’s “Administrative Remedies Program” prohibits anyone from submitting a request or appeal on a prisoners’ behalf, see 28 C.F.R § 542.16; (2) CLA is exempt from the exhaustion requirement because this legal action is intended to prevent or eliminate imminent serious harm to ADX prisoners with mental illness; and (3) Requiring CLA to seek administrative remedies at this time (three years after the initial complaint was filed), is not appropriate and would most likely be a futile exercise. The abuse, neglect, and rights violations inflicted on ADX prisoners with mental illness has not abated since the filing of the Cunningham and Vega complaints, some three years ago. Given the fact that the filing of a lawsuit has not caused Defendant to correct all deficient practices at ADX, no administrative action by CLA is likely to change this picture. Also, the current posture of the Cunningham case leads CLA to believe there will be lengthy pretrial delays while class certification, settlement talks, and discovery proceed. Thus CLA has determined this lawsuit will not be resolved within a reasonable time, when the reasonableness of delay is measured by the ongoing suffering of ADX prisoners with mental illness. Requiring CLA to make an administrative remedies request prior
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to filing this lawsuit would unnecessarily delay the ultimate disposition of this case causing ADX prisoners with mental illness to endure more suffering.
506. CLA has the authority and standing to represent all inmates at ADX with significant mental illness or emotional impairment, even those who have not requested representation by CLA, since CLA is not using its federal allotment to provide representation to any ADX constituents, in accordance with 42 U.S.C. §10804(c); 42 U.S.C. §10805(a)(1)(A) & (B); and 42 U.S.C. §10807.
X. ALLEGATIONS RELATING TO SOME OF CLA’s CONSTITUENTS. A. James Cole
507. James Cole is 36 years old. He has a seventh grade education. Before Mr. Cole’s incarceration, he lived in Mississippi. Currently, Mr. Cole is serving a sentence for assaulting a staff member at the USP Pollock. He was at ADX from August 2011 through 2013 and has a scheduled release date of January 11, 2047. Mr. Cole has a severe mental illness that has been diagnosed as Schizophrenia. He also has significant cognitive impairments and may be mentally disabled. As detailed below, BOP has demonstrated deliberate indifference to his mental health needs. A photograph of Mr. Cole is attached hereto as Exhibit 22.
508. Mr. Cole has been treated for severe mental illness since he was a child. Among other mental health facilities, he has resided at East Mississippi State Hospital, a state mental hospital in Meridian, Mississippi, a mental health unit at the East Mississippi Correctional Center, and (twice) at MCFP Springfield.
509. The signs and symptoms of Mr. Cole’s mental illness and developmental disabilities are profound and obvious. He freely expresses wild delusions about people he knows
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and places he has been. During normal conversation, he frequently (and completely unconsciously) begins speaking in tongues, and then just as abruptly returns to normal speech. He has great difficulty understanding and following simple instructions. Not even a cursory mental health examination would fail to detect his mental illness.
510. The BOP has treated Mr. Cole’s Schizophrenia with periodic injections of a powerful antipsychotic medication, but otherwise has not provided him with any meaningful mental health treatment.
511. Mr. Cole lacks the mental capacity to even attempt to advocate for himself through the ADX administrative remedy process, and as a result was largely ignored by the ADX medical and mental health staff during his time at ADX.
512. In 2013 Mr. Cole was transferred to the High Security Mental Health Step-Down Program at USP Atlanta, where he has somewhat better access to mental health care, but where his care remains constitutionally inadequate, particularly with respect to his continued housing in nearly continuous solitary confinement. B. Jonathan Francisco
513. Jonathan Francisco is 31 years old. Before Mr. Francisco’s incarceration he lived in Tennessee. He is currently serving extended sentences for unlawful weapons possession and murdering a fellow prisoner at USP Pollock. He has a release date of September 10, 2040. Mr. Francisco has a serious mental illness. Because of the circumstances described below, his current diagnosis is unknown to Plaintiffs’ counsel. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs. A photograph of Mr. Francisco is attached hereto as Exhibit 23.
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514. Mr. Francisco arrived at ADX in late 2011. Shortly after his arrival, other prisoners in the ADX SHU began to notice his bizarre behavior. Among other things, he did not speak a word to anyone in the approximately two years he was housed at ADX; rather, he spent all day, every day, staring at the wall of his cell. He frequently defecated on the floor of his cell or on a food tray, and smeared his feces on himself, his cell, or his other surroundings. He ignored other prisoners’ attempts to help him, did not communicate with staff, and made no effort to maintain his health or hygiene. As a result, he lived in squalor, rarely ate, and showered only when ADX staff members forced him into a shower enclosure.
515. Plaintiffs’ counsel learned about Mr. Francisco from other prisoners in late 2011, and began investigating his background. A review of court filings revealed a letter that his mother sent to his original sentencing judge in 2010 noting that when she visited Mr. Francisco on March 7, 2010, his hair was matted, he was “very underweight,” he appeared to be “over medicated,” he “couldn’t talk,” his balance was “unstable,” and he “appeared unable to recognize [his mother] and his little sister [S]halina.” When contacted by Plaintiffs’ counsel, Mr. Francisco’s mother provided a power of attorney signed by Mr. Francisco before his incarceration, and pursuant to that power of attorney signed an engagement letter with Plaintiffs’ counsel’s firm and a Privacy Act waiver authorizing counsel to request a copy of Mr. Francisco’s BOP file pursuant to the Freedom of Information Act (“FOIA”). Counsel repeatedly requested that file, but the BOP initially refused to acknowledge Mr. Francisco’s power of attorney and has so far produced only limited information from his files.
516. Mr. Francisco has also failed to respond to counsel’s requests for an interview, upon information and belief because he no longer comprehends even simple correspondence.
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517. Under the circumstances, although the overwhelming evidence suggests that Mr. Francisco is in profound and obvious psychiatric distress that is being completely ignored by the BOP and ADX staff, Plaintiffs’ counsel has not, as yet, secured access to the records necessary to assist him, other than to put the BOP on notice of his obvious distress.
518. Upon information and belief, Mr. Francisco lacks the mental capacity to even attempt to advocate for himself through the ADX administrative remedy process. He was transferred to MCFP Springfield in October 2013, where he has somewhat better access to mental health care, but where his care remains constitutionally inadequate, particularly with respect to his continued housing in nearly continuous solitary confinement. C. William Harris
519. William J. “Billy” Harris is 39 years old. Before his incarceration he lived in the Phoenix, Arizona area. He is a member of Salt River Pima-Maricopa Indian Community, a Native American sovereign tribe located in the metropolitan Phoenix area. He is currently serving extended sentences for assaulting a federal officer and Assault Resulting in Serious Bodily Injury. His BOP release date is January 21, 2021. A photograph of Mr. Harris is attached hereto as Exhibit 24.
520. Mr. Harris was at ADX from 2011 through late 2013. He currently has a serious mental illness, which has been diagnosed as Schizophrenia. He also has significant cognitive impairments, including brain damage caused by years of substance abuse, including huffing paint. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs.
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521. Mr. Harris reports experiencing significant psychiatric and cognitive symptoms since at least early in his teenage years. The records of his prosecution for a 2004 homicide provide significant indicia of his profound mental illness. Specifically, in 2005 and 2006 he was evaluated and treated at least twice at FMC Butner. A March 16, 2006 filing by his attorney reflects that before that date he had been evaluated and treated at FMC Butner and found incompetent to stand trial. His BOP treating physician requested four months to attempt to restore him to competency, as the treating physician’s efforts to that time had been unsuccessful.
522. Thereafter, and apparently before competency was restored, Mr. Harris was transported back to Arizona, where he was held in a private prison in Florence, Arizona, operated by the Corrections Corporation of America (“CCA Florence”). Before arriving at CCA Florence, Mr. Harris was receiving daily doses of the potent antipsychotic medication Risperdal, but during his return trip to Arizona he received only one or two doses of his medication, and after he arrived at CCA Florence he was given an entirely different antipsychotic, Thorazine. As a result, the court filing describes him as “incompetent and psychotic.” His lawyer also noted that one clear physical manifestation of Mr. Harris’ mental illness and brain damage -- habitual rocking back and forth -- was worse than before his initial transport to FMC Butner.
523. Mr. Harris was later returned to FMC Butner and after extended treatment was restored to competency. He then pled guilty to assault and was sentenced to 108 months. The BOP them promptly shipped him to ADX, where he was only periodically lucid, persistently rocking back and forth, and deteriorating due to the extreme isolation in which he existed. Although he received daily psychotropic medication at the ADX, he received no other
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meaningful mental health care. Because of his mental illness and cognitive issues, he is incapable of advocating for himself generally, or of requesting the care his condition requires.
524. In late 2013 Mr. Harris was transferred to the High Security Mental Health StepDown program at USP Atlanta, where he has somewhat better access to mental health care, but where his care remains constitutionally inadequate, particularly with respect to his continued housing in nearly continuous solitary confinement. D. David Hearne
525. David Hearne is 36 years old. He has a seventh grade education. Before Mr. Hearne’s incarceration, he was a resident of Washington, D.C. Currently, Mr. Hearne is serving a fifteen year sentence for assaulting two corrections officers. He has a release date of October 26, 2025. Mr. Hearne has a serious mental illness that has been diagnosed at various points as Bipolar Disorder, Conduct Disorder, Manic Episodes, Depression, Anti-Social Personality Disorder, and Borderline Intellectual Functioning. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs. A photograph of Mr. Hearne is attached hereto as Exhibit 25.
526. Mental illness runs in Mr. Hearne’s family. When Mr. Hearne was six months old, his father, a paranoid schizophrenic, killed his wife (not Mr. Hearne’s mother) by stabbing her 16 times. Subsequently, Mr. Hearne’s father was institutionalized at St. Elizabeth’s Hospital, a public psychiatric facility. After his release from St. Elizabeth’s, Mr. Hearne’s father stabbed a man in a wheelchair. He was then sent back to St. Elizabeth’s.
527. As a child, Mr. Hearne was extraordinarily aggressive and physically abused his mother. At age six, Mr. Hearne began exhibiting symptoms of Paranoid Schizophrenia. Since
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1992, from approximately age 13, Mr. Hearne has resided almost continuously in restrictive mental hospitals or correctional facilities.
528. In 1992, Mr. Hearne was institutionalized at St. Elizabeth’s, the same facility where his father had been institutionalized. At St. Elizabeth’s, Mr. Hearne was diagnosed with Major Depressive Episode With Psychotic Features, Brief Reactive Psychosis, Bipolar Disorder, And Attention Deficit/Hyperactivity Disorder. Mr. Hearne spent approximately one year at St. Elizabeth’s Hospital before he jumped out of a window and escaped. In 1993, Mr. Hearne was again hospitalized at St. Elizabeth’s where he was, at that time, diagnosed with Bipolar Disorder. In December of 1994, after his mother passed away, Mr. Hearne was seen at Greensville Emporia Counseling Services in Virginia and diagnosed with Conduct Disorder.
529. Due to aggressive behavior, most of Mr. Hearne’s teenage years were spent at Beaumont Learning Center. Mr. Hearne was also hospitalized at Popular Spring Hospital and Central State Hospital and diagnosed with Bipolar Disorder at both facilities. While at Popular Spring Hospital in February 1995, Mr. Hearne underwent intelligence testing and achieved a full-scale I.Q. score of 66, placing him in the mentally disabled range. Subsequently, Mr. Hearne was hospitalized in 1996 and again in 1997 at Central State Hospital after being involved in detention center assaults. During his hospitalizations at Central State Hospital, Mr. Hearne was diagnosed each time with Bipolar Disorder. Later, in March of 2000, Mr. Hearne underwent intelligence testing through the Marion Correctional Treatment Center in Marion, Virginia, and received a full-scale I.Q. score of 72, placing him in the “borderline” range.
530. After being released from a Washington, D.C. detention center in January 2003, Mr. Hearne became affiliated with Green Door, a community agency providing regular
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psychiatric examinations and medications. By February of 2004, however, Mr. Hearne started refusing medications and had a verbal altercation with a staff member. Mr. Hearne was then asked to leave the facility.
531. On February 8, 2004, Mr. Hearne was arrested on federal firearms charges after boarding a city bus in Washington, D.C. with a gun. Believing that people were following and trying to kill him, Mr. Hearne fired the gun out of the moving bus. He did not hit anyone.
532. After Mr. Hearne’s arrest, Dr. Janet Fay-Dumaine, a clinical psychologist, evaluated Mr. Hearne while he was incarcerated at FCI Butner awaiting trial and concluded that “mental health factors substantially impair Mr. Hearnes’ [sic] factual and rational understanding of the proceedings against him . . . .” Dr. Fay-Dumaine recommended that Mr. Hearne be “transferred to a mental hospital for further examination and treatment.”
533. Shortly thereafter, in May of 2004, Mr. Hearne was remanded to a Washington, D.C. jail. There, Dr. Lawrence Oliver, another clinical psychologist, examined Mr. Hearne and noted that Mr. Hearne’s condition was “deteriorating from what it was when he left” FCI Butner, where Mr. Hearne had been diagnosed with “Bipolar Disorder, Manic without Psychotic Features, Cannabis Abuse, Anti-Social Personality Disorder, Borderline Intellectual Functioning, and Borderline Hypertension.” Dr. Oliver made the following observation: “Although it was recommended by the staff at Butner FCI that Mr. Hearne[] continue on his medication regimen to assure continued competency, according to Mr. Hearne[], this apparently did not happened [sic]. This may be the reason why his condition has deteriorated since his return to the District.” Dr. Oliver concluded that Mr. Hearne was “not mentally competent to understand the
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proceedings against him or to assist in the preparation of his defense. Mr. Hearne[] should be transferred to a mental hospital for further examination and treatment.”
534. Notwithstanding the conclusions of two separate clinical psychologists that Mr. Hearne was incapable of understanding the proceedings against him, Mr. Hearne was permitted to enter a guilty plea to the federal firearms charges only three months later on August 3, 2004. The Court sentenced Mr. Hearne to 100 months (over eight years) incarceration on one count and five years’ incarceration on the second count, to be served concurrently. After sentencing Mr. Hearne, the Court ordered that he “be transported forthwith to the Correction Treatment Facility and . . . receive the psychotropic medications he was prescribed by [sic] treatment team at the D.C. Department of Mental Health.”
535. After his conviction on federal firearms charges, Mr. Hearne displayed agitation, hyperactivity, pressure of speech, and bizarre and assaultive behavior while housed in a penitentiary in Coleman, Florida. In October of 2005, Mr. Hearne was transferred to a medical center, where he was diagnosed with Bipolar Disorder and treated with antipsychotic medications (Seroquel, Haldol, and Cogentin). In April 2006, Mr. Hearne was discharged and reportedly doing well on a locked unit. Later, however, while at USP Victorville, Mr. Hearne was again referred to a medical center and admitted to in-patient treatment in January and May of 2007. In July 2007, Mr. Hearne was discharged from treatment and thereafter received outpatient treatment at USP Big Sandy and later at USP Terre Haute. During this time, Mr. Hearne was periodically non-compliant with his medication.
536. Despite Mr. Hearne’s well-documented and extended history of mental illness, the chief psychologist at USP Terre Haute concluded that Mr. Hearne was “not considered to have
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problems that require chronic care.” Nevertheless, Mr. Hearne was put on “psych alert” at USP Terre Haute, which is a designation made to put psychologists on guard for disruptive behavior.
537. On November 7, 2008, while at USP Terre Haute, Mr. Hearne assaulted two correctional officers. At the time of these assaults, Mr. Hearne was not being provided his proper medications. As a result of this incident, Mr. Hearne was charged with two counts of assaulting a federal officer.
538. In April 2009, Mr. Hearne’s attorney filed a motion to determine Mr. Hearne’s mental competency after he began manifesting symptoms of severe psychosis. The Court granted the motion and later found that Mr. Hearne was “suffering from a mental disease or defect rendering him mentally incompetent” to stand trial. The Court ordered that Mr. Hearne be hospitalized for treatment.
539. In January 2010, doctors at MCFP Springfield performed a psychiatric evaluation of Mr. Hearne, after which they prescribed him psychotropic medications including Haldol Deconate, Haloperidol Lactate, Trazodone, and Trihexphenidyl. After receiving the prescribed treatment, Mr. Hearne’s condition improved dramatically. Doctors at MCFP Springfield reported that Mr. Hearne was alert and fully oriented, able to stay on topic and provide appropriate responses, and had thoughts that were clear, rational, and organized. Reports from MCFP Springfield also indicated that Mr. Hearne’s previous manic behavior seemed resolved, he did not present with pressured speech, no delusional ideation was evident, he denied suicidal and homicidal ideation or intent, and he was not judged to be at risk for imminent self-harm.
540. In March 2010, after Mr. Hearne had received the prescribed medication, the Court found Mr. Hearne mentally competent to stand trial, and in June of 2010, Mr. Hearne pled
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guilty to charges arising from his assault of two correctional officers at USP Terre Haute. The court sentenced Mr. Hearne to 15 years imprisonment, but recommended that Mr. Hearne “be designated to a medical facility.”
541. Despite the sentencing Court’s recommendation that Mr. Hearne be designated to a medical facility, Mr. Hearne was transferred to ADX sometime in 2010. On March 14, 2011, Mr. Hearne filed a handwritten document entitled “Suggestion Of Death Upon The Record Under Rule 25(a)(1)” and dated December 10, 2010, in the court where he pled guilty to the federal assault charges. In the document, Mr. Hearne stated that he would commit suicide by January 1, 2011 “in a private location outside the view of ‘normal vision’ only in the eyes of (GOD) [sic] I shall be set free with all liberties restored.”
542. Despite his extended history of mental illness, Mr. Hearne, upon arriving at ADX, received palpably inadequate and perfunctory mental health screening. When Mr. Hearne arrived at ADX, he ran into a staff psychologist and staff psychiatrist in the hallway. They asked Mr. Hearne if he took any over the counter medications, but failed to ask whether Mr. Hearne took any other medications. Mr. Hearne was then placed in a suicide cell with no mattress. From approximately March 2011 to January 2012, Mr. Hearne did not receive any medication at ADX. He has experienced 10-11 month periods at ADX where doctors did not visit him.
543. On or around January 6, 2011, Mr. Hearne filed a written request to ADX prison officials stating that he was being held at ADX without a hearing or psychiatric meeting (the form he submitted actually says: “Why am I over here at the ADX with out a hearing or psy meat ton”). The BOP’s response asserted that Mr. Hearne had made “no specific request for relief.”
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544. On or around February 16, 2011, during an ADX General Population Hearing, Mr. Hearne told the hearing administrator that he was “not getting the medical care and medication I want.” The hearing administrator responded by stating that the hearing “was not the appropriate avenue for [Mr. Hearne] to address this subject and [Mr. Hearne] should contact his Unit Team or Medical Services.”
545. On or around July 19, 2012, Mr. Hearne again submitted a written request to ADX prison officials requesting treatment for his mental illness. The BOP did not provide treatment.
546. Subsequently, on or around August 16, 2012, Mr. Hearne submitted a Request For Administrative Remedy to ADX prison officials requesting treatment for his mental illness. The BOP’s response (which, curiously, refers to an Administrative Remedy dated September 25, 2012) stated that “there is no evidence to support [Mr. Hearne’s] contention that [he] ha[s] a serious mental illness.”
547. Mr. Hearne submitted a Regional Administrative Remedy Appeal to ADX prison officials on or around December 4, 2012, again requesting treatment for his mental illness. The BOP did not provide treatment.
548. On or around March 5, 2013, Mr. Hearne submitted a Central Office Administrative Remedy Appeal to the BOP’s central office in Washington, D.C., requesting treatment for his mental illness. The BOP rejected Mr. Hearne’s appeal.
549. Mr. Hearne’s sister died unexpectedly in early 2013. Since her death, Mr. Hearn’s condition has rapidly deteriorated, as has his conduct. After an extended period of good conduct in 2012, he spent most of spring 2013 in the SHU and descended rapidly into florid psychosis,
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and yet was largely ignored by the BOP’s medical and mental health staff. In the absence of prompt and effective treatment, upon information and belief he was at high risk for self-harm or possibly suicide.
550. Mr. Hearne is a current client of Arnold & Porter LLP, which requested CLA’s assistance on his behalf on May 16, 2013, after the ADX staff denied counsel’s request to visit Mr. Hearne because he was in psychiatric crisis and had been approved for emergency transport to MCFP Springfield, where he spent several months.
551. In 2014 Mr. Hearne was transferred to the High Security Mental Health StepDown program at USP Atlanta, at which he has somewhat better access to mental health care, but where his care remains constitutionally inadequate, particularly with respect to his continued hosing in nearly continuous solitary confinement. E. William Concepcion Sablan
552. William Concepcion Sablan is 50 years old. He is originally from Saipan, in the United States Commonwealth of the Northern Mariana Islands. He is currently serving a sentence of life without the possibility of parole. Mr. Sablan has a serious mental illness that has been diagnosed at various points as Psychotic Disorder NOS, Major Depressive Disorder, PTSD, Cognitive Disorder NOS, Posttraumatic Brain Injury, and severe Personality Disorder. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs. A photograph of Mr. Sablan is attached hereto as Exhibit 26.
553. Mr. Sablan was the thirteenth of 15 children. As a child, Mr. Sablan and his siblings were subject to harsh and frequent beatings from their father. They were kicked, slammed into walls, beaten with fan belts, and choked. Mr. Sablan manifested anti-social
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behavior while in middle school, including excessive absenteeism, failing school work, and suspensions. Mr. Sablan never completed the eighth grade, dropping out of school in 1979, when he was 15. At a young age, he began abusing drugs, including methamphetamine, marijuana, and alcohol.
554. Mr. Sablan has been in and out of prisons since 1984. Between 1984 and 1997, Mr. Sablan pled guilty or was convicted of six felonies and was arrested at least 15 other times.
555. Two incidents in 1995 precipitated the serious deterioration of Mr. Sablan’s mental health. His daughter Mae was killed in a hit and run accident and the perpetrator was never caught. Mr. Sablan, traumatized by her death, became intensely paranoid and obsessed with finding the driver. He disappeared into the jungle for days at a time, claiming to be looking for her killer. Mr. Sablan claimed to see his dead daughter walking around his house. In public, he became extremely aggressive when he saw adults being mean to children.
556. In September 1995 Mr. Sablan sustained serious head trauma when he was attacked by several men, one of whom hit Mr. Sablan in the head with a machete. He received a five centimeter laceration of the posterior scalp that shaved off a three centimeter disc of the external table of his skull, and another five centimeter laceration on his right anterior scalp. After the machete attack, Mr. Sablan’s demeanor and mood changed. He began to misunderstand events and lose track of conversations, but would become furious if anyone asked him about his changed behavior. Mr. Sablan began harboring delusions that the someone was after him and would burst into flight when he thought someone was pursuing him. He would climb coconut trees and stare into the jungle all night, looking for his imaginary pursuers.
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557. While in custody in 1997, prison medical officials prescribed Mr. Sablan the antimanic agent Depakote and the powerful antipsychotic medication Haldol. He also received a mental health screening on these occasions from Dr. Marc Herbst. Though Mr. Sablan denied any history of psychotic symptoms, Dr. Herbst diagnosed him with PTSD and Post-Traumatic Brain Injury, possibly temporal lobe Epilepsy.
558. While incarcerated in 1999, Mr. Sablan and others participated in a prison riot and escape. For his role in these actions, Mr. Sablan was sentenced to 252 months imprisonment and transferred to prison in the continental United States.
559. Despite his psychiatric diagnoses and history of medication, as well as transfer paperwork that suggested a detailed psychiatric examination be conducted upon arrival, Mr. Sablan was only given a perfunctory screening when he arrived at USP Florence. The entire examination consisted of the physician’s assistant merely asking Mr. Sablan if he had any mental issues. The BOP also failed to review his psychotropic medication upon his arrival, despite a written BOP file entry directing such a review. Mr. Sablan then was placed in a two person cell with his distant cousin Rudy Sablan and a third prisoner, Joey Estrella. Under the BOP’s own rules, the mental health staff at ADX should have followed up his initial processing with an evaluation within 24 hours of Mr. Sablan’s arrival. The staff at USP Florence failed to do so. The staff also failed to provide Mr. Sablan with his psychotropic medication.
560. On October 10, 1999, only three days after arriving at ADX, Mr. Sablan and his cousin killed Mr. Estrella. Mr. Sablan was charged with murder and his defense counsel sought to have him found incompetent to stand trial due to his psychiatric illnesses. The BOP claimed, however, that Mr. Sablan did not have mental illness and was merely malingering.
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561. In July 2001, Dr. Laura Post examined Mr. Sablan, and diagnosed him with PTSD and a Psychotic Disorder Due to Manic Episode. She prescribed him the potent antipsychotic Haldol. Also in July 2001, Dr. Rose Manguso conducted a neuropsychological evaluation of Mr. Sablan. She concluded that he exhibited neuropsychological deficits which stemmed from the brain damage caused by prior head trauma and prior emotional or psychological disturbances. She concluded that these neuropsychological deficits could easily exacerbate the symptoms of Mr. Sablan’s PTSD and his Mood Disorder with Psychotic Features.
562. In September 2001, Drs. James Jacobson and Todd Robert Poch evaluated Mr. Sablan for over 25 hours, and concluded that he had an Anxiety and Mood Disorder with Psychotic Features. They suggested that Mr. Sablan receive the antimanic drug Tegretol and the antipsychotic drug Risperdal. Dr. Poch noted Mr. Sablan’s fanciful delusions, including claims that he was the chief of the Chamorros (his indigenous tribe on Saipan), that had the psychic ability to determine the outcome of his own trial, and that he knew the location of Amelia Earhart’s plane. Dr. Poch also reported that Mr. Sablan had received a Full Scale IQ of 77 on the intelligence test he had been administered.
563. In September 2003, psychiatrist Dr. Frank G. Fortunati examined Mr. Sablan. Dr. Fortunati observed Mr. Sablan experiencing auditory hallucinations of three different people talking to each other, that Mr. Sablan claimed he could hear via a satellite connection and a computer located in his brain. Mr. Sablan also claimed that the government could hear all the thoughts of everyone in the world through the use of satellite connections. Dr. Fortunati concluded that Mr. Sablan was in a floridly psychotic state.
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564. In May 2004, Dr. Ruben Gur conducted a Quantitative Functional Brain Imaging Consultation based on MRI images of Mr. Sablan’s brain. Dr. Gur indicated that the abnormalities in low grey matter were consistent with parenchymal loss caused by head injury, and that the behavioral consequences of such abnormalities could be severe, potentially causing intensified aggressive urges and an impaired ability to control emotional output.
565. Based on these findings, on June 10, 2004, Judge Wiley Y. Daniel found that Mr. Sablan had a mental disease or defect rendering him mentally incompetent to assist properly in his defense. Judge Daniel ordered that Mr. Sablan be hospitalized and treated for up to four months to determine whether he could attain the capacity for the trial to proceed. Mr. Sablan was transferred to FMC Butner.
566. While at FMC Butner, Mr. Sablan was floridly delusional. He made a series of claims about Amelia Earhart and her plane, including that he found her plane 20 years ago and that Earhart’s spirit had been pursuing him ever since, trying to get him to solve the mystery. He relayed his claim in a letter to the Amelia Earhart Foundation. Mr. Sablan also spoke frequently about brain interference from satellites and his continuing frustration that his daughter’s killer had never been caught. BOP physicians Drs. Byron Herbel and Robert Cochrane expressed doubt that Mr. Sablan’s condition was the result of malingering, and hypothesized that he could have Delusional Disorder or Late Onset Schizophrenia. They prescribed him a cocktail of drugs consisting of antimanic drug Depakene, antipsychotic drug Risperdal and antidepressant Remeron.
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567. BOP officials were unable to render Mr. Sablan competent for trial within the four month time limit ordered by Judge Daniel. Upon the BOP’s request, Judge Daniel ordered an additional 120 days of attempts to render Mr. Sablan competent.
568. In January 2005, after many months of this extensive regimen of psychotropic drugs and constant psychiatric treatment and therapy, the evaluators at FMC Butner concluded that Mr. Sablan was competent to stand trial. Nonetheless, Mr. Sablan continued to endorse the same delusions, only slightly diminished, and with a sense of embarrassment. In April 2005, Mr. Sablan was still claiming that he had found Amelia Earhart’s plane, but admitted that the plane he found would require verification to prove its origin. He also admitted that he was still receiving interference from the satellites, but said that watching television helped him ignore it.
569. Dr. Herbel’s final report at FMC Butner diagnosed Mr. Sablan with Psychotic Disorder NOS; Major Depressive Disorder, Single Episode, Moderate; Cognitive Disorder NOS; Antisocial Personality Disorder; and addictions to various illicit drugs. Dr. Herbel also noted that Mr. Sablan’s increased depression was a common outcome after patients with Schizophrenia become medicated and become aware that their beliefs are merely delusions.
570. In April 2005, Judge Daniel found that Mr. Sablan had recovered sufficiently to stand trial. At trial, the issue of Mr. Sablan’s mental competence was extensively litigated. Dr. Gur testified that scans of Mr. Sablan’s brain showed that even the least damaged areas were abnormal. Dr. David Lovejoy, a neuropsychologist, testified that Mr. Sablan had a Traumatic Brain Injury, Psychotic Disorder, and PTSD.
571. The jury found Mr. Sablan guilty of murder. Judge Daniel thereafter sentenced Mr. Sablan to life imprisonment without the possibility of parole. Judge Daniel also
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recommended that “the Bureau of Prisons continue, on an uninterrupted basis, with a regimen of medicines (previously referred to as psychotropic medications) and other therapeutic treatment (including art supplies) currently in place to provide the defendant with the maximum ability to serve his life sentence with minimal disruptions to himself or others.”
572. Mr. Sablan was thereafter returned to ADX. From the time Mr. Sablan arrived at ADX, the BOP completely ignored Judge Daniel’s recommendations concerning Mr. Sablan’s mental health care. Although Mr. Sablan received psychotropic medication, the BOP refused to give Mr. Sablan any psychological or other therapeutic treatment in accordance with Judge Daniel’s sentencing order.
573. Mr. Sablan attempted to exhaust administrative remedies concerning his access to mental health care at ADX, but despite the active involvement of counsel in that process was unable to complete the process due to his severe mental illness and cognitive issues. No administrative remedy is, therefore, available to him.
574. In 2014 Mr. Sablan was transferred to the High Security Mental Health StepDown program at USP Atlanta, at which he has somewhat better access to mental health care, but where his care remains constitutionally inadequate, particularly with respect to his continued housing in nearly continuous solitary confinement. F. James Van Noy
575. James Van Noy is 52 years old. Before his incarceration he lived in Alabama. He has been incarcerated continuously since 1985. He is currently serving a 63 month sentence for making threats against the President of the United States while incarcerated in Alabama, and a consecutive 51 month sentence for biting a BOP correctional officer. His BOP release date is
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December 31, 2015. He currently has a serious mental illness, for which he has received a variety of diagnoses. He is currently being treated with anti-depressant medication. He also exhibits obvious signs and symptoms of serious and debilitating cognitive problems. As detailed below, the BOP has demonstrated deliberate indifference to his mental health needs. A photograph of Mr. Van Noy is attached as Exhibit 27.
576. Mr. Van Noy has a fourth grade education. The records of his two prosecutions for federal offenses provide significant indicia of his profound mental illness.
577. In September 2004, while Mr. Van Noy was incarcerated in a state facility in Alabama, he wrote a letter threatening then-President George W. Bush, for which he was prosecuted. Information developed during the course of that prosecution revealed that in approximately 1975, at the age of ten, Mr. Van Noy was committed to the Searcy State Mental Hospital, an Alabama residential state mental health facility. He remained there until approximately 1986, when he was 22 or 23 years old. Since then, he has been confined in jails and prisons almost continuously. A forensic psychologist who examined Mr. Van Noy in the course of his prosecution for threatening the President concluded that he had a serious mental illness that is manifested by severe impairments in impulse control, attention problems, mood variability, and periods of psychosis. Based on those findings, the court determined that before it could complete a competency determination more intensive examination and evaluation was required. After a series of examinations by various government doctors, Mr. Van Noy was found to have mental illness but deemed competent to stand trial. Shortly thereafter, he pled guilty to both counts of his indictment. On January 17, 2007, he was sentenced to 63 months in federal custody. In sentencing Mr. Van Noy, the court recommended to the BOP that Mr. Van Noy be
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placed “in a facility where [he] can receive appropriate mental health treatment and therapy.” The BOP ignored this recommendation, instead assigning Mr. Van Noy to a Federal Correctional Institute and then, following a series of incidents between Mr. Van Noy and other prisoners, to a succession of mainline United States Penitentiaries.
578. Two and a half years later, in September 2009, Mr. Van Noy was confined in the SHU of a United States Penitentiary. A corrections officer noticed an object in Mr. Van Noy’s hand and attempted to retrieve it, resulting in a scuffle during which Mr. Van Noy bit the officer’s arm. He was indicted for assaulting the officer. Again, his competency was assessed. Again, he was found to have mental illness but also found competent to be tried. Again, he pled guilty, this time receiving a sentence of 51 months, to run consecutively to his earlier federal sentence. Again, his order of judgment and commitment reflects his mental illness, this time requiring him to complete a mental health treatment program following his release from prison. And again, rather than sending Mr. Van Noy to a facility that designed and operated to accommodate those with serious mental illness , the BOP designated him to a facility -- this time ADX -- that lacks the capacity to do so.
579. Mr. Van Noy remains at ADX today. He receives antidepressant medication but is given no other mental health care.
XI. CLASS ACTION ALLEGATIONS 580. Class Plaintiffs bring the causes of action identified below on behalf of themselves and all other persons similarly situated pursuant to Federal Rule of Civil Procedure 23. For those causes of action, Plaintiffs seek injunctive and declaratory relief applicable to members of the Class and Subclass, as defined below.
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581. Plaintiffs bring this action on behalf of the following class and subclass: Prisoner Class
All persons who were, as of the filing date of the original complaint in this case, or are now, or will be in the future, confined to the custody of the United States Bureau of Prisons at the United States Penitentiary Administrative Maximum in Florence, Colorado. Mental Illness Subclass All persons who were, as of the filing date of the original complaint in this case, or are now, or will be in the future, confined to the custody of the United States Bureau of Prisons in the United States Penitentiary Administrative Maximum in Florence, Colorado and have been diagnosed by the United States Bureau of Prisons or its representative personnel with a “Serious Mental Illness” or a “Mental Illness,” requiring treatment under one or more of the BOP’s CARE levels as set forth in Program Statement 5310.16, dated May 1, 2014. (a) “Serious Mental Illness” is a group of diagnoses that exist on a continuum of the broader category of mental illness. The BOP, in its Program Statement, defines certain diagnoses as Serious Mental Illness, and others as Mental Illness. An individual’s diagnosis and treatment needs may vary over time. While the BOP has determined that individuals with a Serious Mental Illness should be excluded from ADX, and individuals with Mental Illness may be housed at ADX, its policies acknowledge that individuals diagnosed with a either a Serious Mental Illness or Mental Illness require treatment. For purposes of this class definition,
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“Serious Mental Illness” means a diagnosis of one of the disorders listed in said Program Statement as those “generally classified as serious mental illness,” i.e., Schizophrenia Spectrum and Other Psychotic Disorders, Major Depressive Disorder (all types), or Bipolar and Related Disorders, or a diagnosis of those disorders listed in said Program Statement as “often classified as serious mental illness,” that result in significant functional impairment, i.e., Anxiety Disorders, Obsessive-Compulsive and Related Disorders, Trauma and Stressor-Related Disorders, Intellectual Disabilities and Autism Spectrum Disorders, Major Neurocognitive Disorders, and Personality Disorders, regardless of the CARE level assigned to that individual for treatment purposes; (b) “Mental Illness” are other illnesses recognized by BOP in its Program Statement as existing in the continuum of diagnosed conditions requiring mental health treatment. For purposes of this class definition, “Mental Illness” means a diagnosis of a mental disorder defined in the Program Statement as “a syndrome characterized by clinical significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning [and is] usually associated with significant distress or disability in social, occupational, or other important activities” that requires mental health services pursuant to CARE levels CARE2-MH, CARE3-MH or CARE4-MH, as set forth in said Program Statement.
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(c) “CARE levels” means the mental health care levels used by the BOP to classify prisoners based on their need for mental health services; levels CARE1MH through CARE4-MH are described in detail in the May 1, 2014 Program Statement. A. Prisoner Class 582. Class action status for the Prisoner Class in this litigation is proper because: (a) The Prisoner Class is so numerous that joinder of all members is impractical. Upon information and belief, the total number of class members is more than four hundred men currently confined at ADX and an unknowable number of current and future BOP prisoners who are designated for confinement at ADX; (b) There are questions of law and fact common to the class, including without limitation: whether class members are subject to harm as a result of Defendant’s practices that fail to provide constitutionally-adequate initial and periodic mental health evaluations at ADX; whether Defendant violates its own written policies and procedures by refusing to provide initial and periodic mental health evaluations to class members at ADX; whether Defendant’s failure to maintain an adequate program for initial and periodic mental health evaluations at ADX leads to a failure to properly diagnose prisoners who have mental illness; and whether Defendant’s failure to maintain an adequate program for initial and periodic mental health evaluations at ADX leads to a failure to provide constitutionally adequate mental health treatment to prisoners with mental illness; (c) Plaintiffs’ claims are typical of the claims of the class, in that each Plaintiff is incarcerated at ADX, did not receive a prompt mental health evaluation upon transfer
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to ADX, has not received continued periodic mental health evaluations during the time they have been incarcerated at ADX, and currently has claims that, like the claims of the class, arise from the same policies, practices, and procedures implemented by Defendant at ADX;
(d) Plaintiffs and all members of the class have been similarly affected by Defendant’s common course of conduct;
(e) Plaintiffs will fairly and adequately protect the interests of the class as there is no conflict between Named Plaintiffs and the other class members; and
(f) Plaintiffs can adequately represent the interests of the class members and have retained counsel experienced in class action litigation.
583. Defendant has acted and/or refused to act on grounds generally applicable to the class, thereby making final declaratory and injunctive relief appropriate with respect to the class as a whole under Federal Rule of Civil Procedure 23(b)(2). B. Mental Illness Subclass
584. Class action status for the Mental Illness Subclass (“Subclass”) in this litigation is proper because:
(a) The Subclass is so numerous that joinder of all members is impractical. Due to the nature of the facility at issue and the mental health afflictions known to Plaintiffs and their counsel, upon information and belief, the total number of subclass members is dozens, if not more than one hundred men;
(b) There are questions of law and fact common to the Subclass, including without limitation: whether Defendant’s failure to maintain an adequate program for appropriate mental health evaluations at ADX leads to a failure to provide constitutionally adequate mental
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health treatment to prisoners with mental illness; whether Defendant violates its own written policies and procedures by a practice of placing s prisoners with serious mental illness at ADX, and within the Control Unit and SHU at ADX; whether Defendant violates its own written policies and procedures by failing to adequately instruct unit officers and detail supervisors in recognizing and reporting symptoms of mental illness; whether Defendant violates its own written policies by a practice of taking inappropriate disciplinary actions against prisoners with mental illness; whether Defendant violates its own written policies by failing to maintain an adequate program to diagnose prisoners with mental illness at ADX; whether Subclass members are subject to harm as a result of Defendant’s practices that fail to provide adequate treatment for prisoners diagnosed with a mental illness, including a serious mental illness; and whether Defendant’s repeated violations of numerous mental health policies have placed members of the Subclass at risk for increased psychological and/or physical harm;
(c) Plaintiffs’ claims are typical of the claims of the Subclass, in that each Named Plaintiff has at least one mental illness, often a serious mental illness, for which he has not received appropriate treatment, and Plaintiffs’ claims and the claims of the Subclass arise from the same policies, practices, and procedures implemented by Defendant at ADX;
(d) Plaintiffs and all members of the Subclass have been similarly affected by Defendant’s common course of conduct;
(e) Plaintiffs will fairly and adequately protect the interests of the Subclass as there is no conflict between Plaintiffs and the other Subclass members; and
(f) Plaintiffs can adequately represent the interests of the Subclass members and have retained counsel experienced in class action litigation.
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585. Defendant has acted and/or refused to act on grounds generally applicable to the Subclass, thereby making final declaratory and injunctive relief appropriate with respect to the class as a whole under Federal Rule of Civil Procedure 23(b)(2).
XII. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Violation of the Eight Amendment to the United States Constitution - Failure to Diagnose (Asserted by Plaintiff Prisoner Class and CLA) 586. Plaintiffs incorporate by reference the foregoing paragraphs of this Second Amended Complaint as though fully set forth herein. 587. As described herein, by its policies and practices, Defendant subjects Plaintiffs and class members to a substantial risk of serious harm and injury by failing to establish and maintain a program and/or practices to adequately screen and diagnose prisoners at ADX for mental illnesses, both during their initial assignment to ADX and periodically thereafter. Defendant has been deliberately indifferent to this substantial risk of serious harm to Plaintiffs and class members. 588. Defendant has been and is aware of all the deprivations complained of herein, and has condoned or been deliberately indifferent to such conduct, and to Plaintiffs’ and class members’ serious medical needs. 589. Defendant’s policies and practices are the proximate cause of the Plaintiffs’ and class members’ deprivation of rights under the Eighth Amendment.
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SECOND CLAIM FOR RELIEF Violation of the Eighth Amendment of the United States Constitution - Failure to Treat
(Asserted by Plaintiff Subclass and CLA) 590. Plaintiffs incorporate by reference the foregoing paragraphs of this Second Amended Complaint as though fully set forth herein. 591. As described herein, by its policies and practices, Defendant subjects Plaintiffs and Subclass members to a substantial risk of serious harm and injury by failing to establish and maintain a program to provide adequate mental health treatment to Plaintiffs and Subclass members. 592. Defendant has been and is aware of all the deprivations complained of herein, and has condoned or been deliberately indifferent to such conduct, and continues to exhibit deliberate indifference to Plaintiffs’ and Subclass members’ serious medical needs. 593. Defendant’s policies and practices are the proximate cause of the Plaintiffs’ and Subclass members’ ongoing deprivation of rights under the Eighth Amendment.
XIII. PRAYER FOR RELIEF Plaintiffs therefore respectfully request that this Court grant the following relief: 1. Certify the proposed Prisoner Class and Subclass; 2. Enter an injunction directing that Defendant implements a program of mental health screening and diagnosis for the benefit of all Prisoner Class members. This program shall include the staffing of mental health professionals at ADX to provide the screening and diagnosis services required hereby. The program shall provide, at a minimum, the following:
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(a) a mental health examination prior to transfer to ADX or immediately upon arrival at ADX, to determine the presence or absence of a Mental Illness or Serious Mental Illness, as defined in this Second Amended Complaint;
(b) an annual mental health examination, and regular mental health rounds by a mental health professional, to facilitate early detection and treatment of a Mental Illness or Serious Mental Illness as defined in this Second Amended Complaint;
(c) a program of training ADX staff members on detection of symptoms of Mental Illness and Serious Mental Illness; and
(d) a procedure for plaintiff class members who dispute the diagnosis by the BOP or its representative personnel for review of that diagnosis by a mental health provider independent of the BOP.
3. Enter an injunction directing that Defendant implements a program of treatment for each Mental Illness and Serious Mental Illness for the benefit of members of the Subclass. That program shall provide treatment at the various treatment settings, or levels of care, described in Paragraph 17, above, and shall require that, to the extent a level of care cannot be provided at ADX, a Subclass member requiring such a level of care be timely transferred to a facility where such care can be provided. The program of treatment also shall include, at a minimum, the following:
(a) staffing of mental health professionals at ADX in sufficient numbers to administer the program of mental health treatment;
(b) bi-weekly access to out-of-cell private psychotherapy; (c) monthly access to confidential psychiatry sessions;
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(d) access to at least 5-10 hours per week of out-of-cell therapeutic activity; (e) access to at least 10 hours per week of out-of-cell recreational activity that allows for socialization with other prisoners; (f) regular and scheduled receipt of all prescribed medication; (g) not housing prisoners who are prescribed medication in Control Units, or in any unit in which medications are not provided; (h) treatment planning team meetings three times annually; and (i) implementation of policies and procedures to provide Subclass members a reasonable opportunity to program their way out of the ADX. 4. Enter an injunction directing that Defendant implements a program of suicide and self-harm prevention, including at a minimum, regular and reliable access for Subclass members to suicide prevention and mental health crisis intervention services with trained professionals. 5. Enter an injunction directing that Defendant implements a program of placement of Subclass members at ADX including, at a minimum, making available to all Subclass members the option of housing in a unit dedicated to prisoners with Mental Illness or Serious Mental Illness that is segregated from other prisoners, staffed by medical and correctional officers specially trained to deal with mental health issues, and operated so that prisoners with a Mental Illness or Serious Mental Illness may receive consistent and accurate doses of prescribed psychotropic medication together with other psychiatric and psychological care; 6. Enter an injunction directing that Defendant adopts and complies with written policies on the safe and humane treatment of Subclass members who become disruptive.
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7. Enter an injunction directing the implementation of a program of preventative care to prevent the development of mental illness as a result of housing prisoners in the unique conditions at ADX, including the elements set forth in Paragraphs 21-22, above, and ensure that signs and symptoms of mental illness that do develop are timely identified and addressed.
8. Enter an injunction directing Defendant to grant to a court-ordered monitor regular access to ADX and its records for the monitoring of Defendant’s compliance with any injunctions entered herein.
9. Enter an injunction directing Defendant to grant to a court-ordered monitor regular access to any facilities to which Subclass members have been transferred and those facilities’ records to ensure Defendant’s compliance with the requirements of the Eighth Amendment in providing mental health treatment to the members of the Subclass.
10. Declare that the diagnosis and treatment of prisoners at ADX who have mental illness violates the standards set by the federal government and the BOP in their own regulations, as well as the Eighth Amendment to the United States Constitution;
11. Grant an award of attorneys’ fees; and 12. Grant such other relief as this Court deems just and proper.
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Dated: June 15, 2015

Respectfully submitted,
ARNOLD & PORTER LLP
By /s/ Edwin P. Aro Edwin P. Aro James E. Scarboro 370 Seventeenth Street Suite 4400 Denver, CO 80202-1370 Telephone: +1 303.863.1000 ed.aro@aporter.com james.scarboro@aporter.com
Maurice A. Leiter 777 S. Figueroa Street 44th Floor Los Angeles, CA 90017 Telephone: +1 213.243.4000 maury.leiter@aporter.com
Veronica E. Rendon Keri L. Arnold 399 Park Avenue New York, NY 10022 Telephone: +1 212.715.1000 veronica.rendon@aporter.com keri.arnold@aporter.com
Nancy L. Perkins 555 Twelfth Street, NW Washington, D.C. 20004 Telephone: +1 202.942.5000 nancy.perkins@aporter.com

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WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS By /s/ Deborah Golden
Deborah Golden 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036 Telephone: +1 202.319.1000 deborah_golden@washlaw.org Attorneys for Plaintiffs
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Addresses of Prisoner Plaintiffs:
Percy Barron, Reg. #04710-000; Alphonso Blake, Reg# 08083-007; Jabbar Currence, Reg# 36530-083; Sean Gillespie, Reg# 23278-009; Charles Hipps, Reg# 06181-025; Ronnie Houston, Reg# 04012-063; John Lamb, Reg# 99917-011; Arnell Shelton, Reg# 31513-007; Marcellus Washington, Reg# 19015-050 U.S. Penitentiary - ADX P. O. Box 8500 Florence, CO 81226 Carlton Dunbar, Reg# 32660-007; Herbert Perkins, Reg# 40172-051; John J. Powers, Reg# 03220-028 U.S. Penitentiary Florence - High P.O. Box 7000 Florence, CA 81226 Harold Cunningham, Reg# 04685-000 U.S. Penitentiary Hazelton P.O. Box 2000 Bruceton Mills, WV 26525 Scott Fountain, Reg# 02158-090 U.S. Penitentiary Atlanta P.O. Box 150160 Atlanta, GA 30315
Address of Plaintiff The Center for Legal Advocacy, dba Disability Law Colorado: 455 Sherman Street Denver, CO 80203
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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 15th day of June, 2015, the foregoing SECOND AMENDED COMPLAINT was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all counsel of record as follows: Amy L. Padden U.S. Attorney’s Office - Denver 1225 Seventeenth Street, Suite 700 Denver, CO 80202 amy.padden@usdoj.gov Marcy E. Cook U.S. Attorney’s Office - Denver 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Marcy.cook@usdoj.gov
/s/ Linda J. Teater
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01570-RPM
HAROLD CUNNINGHAM, CARLTON DUNBAR, JOHN W. NARDUCCI, JR., JEREMY PINSON, JOHN J. POWERS, ERNEST NORMAN SHAIFER, and MARCELLUS WASHINGTON, each individually and on behalf of all others similarly situated, and CENTER FOR LEGAL ADVOCACY, D.B.A. THE LEGAL CENTER FOR PEOPLE WITH DISABILITIES AND OLDER PEOPLE, COLORADO’S PROTECTION AND ADVOCACY SYSTEM,
Plaintiffs, v.
FEDERAL BUREAU OF PRISONS,
Defendant. _____________________________________________________________________
ORDER ON CLA STANDING _____________________________________________________________________
The Center for Legal Advocacy, d.b.a The Legal Center for People with
Disabilities and Older People (“CLA”) is one of the plaintiffs in the Second Amended
Complaint, filed on June 15, 2015 (Doc. 274). It sues as an association on behalf of
prisoners with mental illness housed in the United States Penitentiary Administrative
Maximum facility in Florence, Colorado, (“ADX”) operated by the defendant Bureau of
Prisons (“BOP”). The defendant has challenged CLA’s standing to pursue the claims
for declaratory and injunctive relief sought by it and the individual plaintiffs. That
challenge has been briefed and argued as a motion for partial summary judgment.

The CLA is a non-profit corporation designated by the State of Colorado to receive allotments pursuant to the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”). The relevant allegations of the Second Amended Complaint are set out in the attached Appendix.
The purposes of the PAMII are set out in 42 U.S.C. § 10801(b) as follows: (1) to ensure that the rights of individuals with mental illness are protected; and (2) to assist States to establish and operate a protection and advocacy system for individuals with mental illness which will–
(A) protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes; and (B) investigate incidents of abuse and neglect of mentally ill individuals if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred. The allegations about the creation, structure, operations and actions of the CLA relevant to its joinder in this lawsuit are not disputed. Prisons are included in the definition of “facilities” in § 10802(3), as one rendering care or treatment of mentally ill persons subject to the protections of the statute. The CLA meets the eligible system requirements in § 10805 and therefore has authority to pursue legal remedies “to ensure the protection of individuals with mental illness who are receiving care or treatment in the State,” § 10805(1)(B). The Eighth Amendment to the United States Constitution protects inmates at ADX from injury caused by deliberate indifference to the need for treatment of their mental health needs. This civil action seeks to ensure that protection.
2

The BOP asserts that the CLA does not have Article III standing for a case or controversy because it has not shown that its litigating position is supported by the inmates it seeks to represent, and it does not show that it has its own injury in fact. The defendant also claims that there is no associational standing because the CLA may not represent inmates who have not requested representation as required by § 10804(c).
The Ninth Circuit Court of Appeals has definitively decided that a PAMII organization has both Constitutional and prudential standing to seek declaratory and injunctive relief for mentally incapacitated persons being held without treatment in county jails. The opinion deciding that appeal is adopted as decisional for this case. Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003).
The BOP rejects its applicability to this action against a federal facility because of the language in § 10804(c). That is a subsection of § 10804, which is entitled “Use of Allotments.” Read in context, the requirement of a request for representation is only a restriction on the use of allotted federal funds. Because the CLA is not using federal funds to support this litigation, this subsection is not a limitation on its capacity to represent all inmates with mental illness at the ADX affected by the alleged unconstitutional practices of the BOP.1
The defendant claims that in this case the requested equitable relief requires the participation of individual inmates, contrary to the third prong of Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 334 (1977). The Ninth Circuit rejected that
1The fact that no federally allotted funds have been or are being used is attested by the Declaration of CLA’s Director of Administrative Services, William J. McBride. He declared that CLA receives non-Federal funds including charitable contributions, workshop and training income, client fees and court awards. (Doc. 108-1).
3

argument for the same reason it must be rejected here. The CLA and the individual plaintiffs are claiming systemic violations of the Eighth Amendment. Proof of those claims may make some testimony from individual inmates necessary but it does not require the participation of all inmates affected by those practices.
The CLA has established standing to pursue claims for declaratory and injunctive relief for prisoners with mental illness housed at ADX.
It is SO ORDERED. DATED: November 3rd, 2015.
BY THE COURT: s/Richard P. Matsch ________________________________ Richard P. Matsch, Senior District Judge
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APPENDIX
IX. ALLEGATIONS RELATING TO THE CENTER FOR LEGAL ADVOCACY 489. The Center for Legal Advocacy d.b.a. Disability Law Colorado (“CLA”), is a
non-profit corporation headquartered in Denver, Colorado. Plaintiff was designated in 1977 by Governor Richard Lamm as Colorado’s protection and advocacy system (P&A System) to protect and advocate for the rights of persons with developmental disabilities under subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. §§ 15041 et seq. Since 1986, CLA has received federal allotmentsgrants on an annual basis, and has established and administered a P &A System in Colorado for individuals with mental illness pursuant to 42 U.S.C. §§ 10803 and 10805 of the Protection and Advocacy for Individuals with Mental Illness Act, (PAIMI Act). Since 1986, CLA has been and is currently the eligible P&A System for individuals with mental illness in Colorado as defined at 42 U.S.C. § 10802(2).
490. CLA has associational standing to bring this lawsuit. CLA is the functional equivalent of a voluntary membership organization that was created by Congress to protect and advocate for its Colorado Constituents, which include ADX prisoners with significant mental illness or emotional impairment who are being abused, neglected and subject to civil rights violations by being denied Constitutionally guaranteed necessary and appropriate mental health treatment. CLA’s Colorado Constituents possess many indicia of membership, to include influencing what issues CLA takes on in the performance of its federal mandate, some of which are alleged in the following paragraphs.
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491. CLA publishes the annual PAIMI Program Priorities and Objectives on its website inviting Constituents to comment on their relative importance to CLA’s statutory charge to protect and advocate for individuals with mental illness.
492. CLA has a governing board of directors, which is composed of members who broadly represent and who are knowledgeable about the needs of individuals with mental illness. CLA’s board of directors includes members who have received or are receiving mental health services or family members of directors who have received or are receiving mental health services.
493. CLA has established a PAIMI Advisory Council which advises the P&A System on the policies, priorities and objectives designed to protect and advocate for the rights of CLA’s Constituents - individuals with a significant mental illness or emotional impairment.
494. The PAIMI Advisory Council includes attorneys, mental health professionals, members of the public who are knowledgeable about mental illness, a provider of mental health services, and individuals who have received or are receiving mental health services or who have family members who have received or are receiving mental health services. Over sixty percent (60%) of CLA’s PAIMI Advisory Council consists of members who have received or are receiving mental health services or who have family members who have received or are receiving mental health services.
495. CLA’s PAIMI Advisory Council is chaired by an individual who themselves or a family member has received or is receiving mental health services. CLA’s PAIMI Advisory Council chairperson and one council member are also members of CLA’s governing board of directors. Together, CLA’s board of directors and CLA’s PAIMI
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Advisory Council with assistance of PAIMI Program staff develop the annual priorities and objectives of the P&A System.
496. CLA’s PAIMI Advisory Council meets six times per year. At these meetings, the Advisory Council discusses issues that concern abuse, neglect and rights violations, as well as the delivery of mental health treatment, to CLA’s Constituents throughout Colorado. These meetings are attended by members of the public who are interested in mental health issues, CLA’s PAIMI program staff, its Legal Director and Executive Director. At these meetings PAIMI program staff report on priority casework and recent developments concerning abuse, neglect and rights violations involving CLA’s Constituents.
497. Prior to the April 2013 PAIMI Advisory Council meeting, a meeting reminder notice was sent to interested members of the public and all council members that included links to the “SuperMax ADX” litigation. Everyone who received the notice was encouraged to read the information provided at these websites to facilitate discussions at the Council meeting.
498. At the April 2013, PAIMI Advisory Council meeting PAIMI staff reported on the lack of mental health treatment for prisoners at the U.S. Bureau of Prison’s ADX facility in Florence, Colorado. It was reported to attendees and the PAIMI Advisory Council that the denial of necessary mental health treatment to a federal prisoner, diagnosed with a significant mental illness or emotional impairment can be a violation of the Eighth Amendment’s cruel and unusual punishment clause, a serious matter that CLA needed to address. The council members and attendees were also informed by PAIMI staff that reports had been received about prisoners with mental illness who had
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committed suicide, engaged in self-harming behaviors, were catatonic in their cell, were smearing feces about themselves and their cells and some were screaming out at all hours of the day and night. The PAIMI Advisory Council was shocked by these revelations and thought that something should be done to remedy the situation.
499. Following the April PAIMI Council meeting a new PAIMI Program Priority was circulated to and adopted by both the PAIMI Advisory Council and CLA’s governing board. Program Priority 4 directs CLA to investigate and monitor complaints and reports of abuse, neglect and rights violations from PAIMI eligible individuals confined in the ADX facility. Program Priority 4 further directs CLA to take appropriate action, including litigation, to correct any abuse, neglect, or rights violations involving ADX prisoners.
500. As of June 15, 2015, CLA has received requests for representation from or on behalf of six current or former ADX prisoners. Five of those prisoners, James Cole, William Harris, David Hearne, William Sablan, and James Van Noy have personally requested DLC’s assistance. The mother of prisoner Jonathan Francisco requested assistance on his behalf, as his attorney in fact.
501. Each request for representation indicates that the Constituent has a significant mental illness or emotional impairment and calls upon CLA to take action to ensure these prisoners receive necessary and appropriate mental health treatment.
502. CLA has established a grievance procedure for Constituents and prospective Constituents, which allows individuals with mental illness and family members of such individuals to assure themselves that CLA and the PAIMI Program are operating in compliance with the provisions of the PAIMI Act. The Legal Services
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Committee of CLA’s governing board makes the final decision on Constituent grievances.
503. CLA is sufficiently identified with its Constituents and subject to their influence, which is demonstrated by CLA’s actions, after receiving reports of abuse, neglect, and rights violations at ADX. CLA adopted a new PAIMI Program Priority by joint action of the PAIMI Advisory Council and governing board to address the reports of abuse, neglect, and rights violations occurring at ADX. CLA has allocated its limited resources, both personnel and financial-using only nonfederal funds, to investigate and file this lawsuit to stop the abuse, neglect, and rights violations experienced by all PAIMI eligible ADX prisoners. CLA staff traveled from Denver to Florence, Colorado, spending two days interviewing Constituents at the ADX. CLA staff have also spent numerous hours reviewing the pleadings in the Cunningham and Vega cases; attending partner conferences where prisoner complaints and case strategy are discussed; attending numerous settlement conferences negotiating policy changes and settlement terms; reviewing prisoner letters reporting or complaining about ongoing abuse, neglect, and rights violations at ADX; reviewing media reports about ADX’s treatment of prisoners with significant mental illness or emotional impairment; conducting legal research; and drafting portions of the First and Second Amended Complaints.
504. When CLA’s Constituents are abused, neglected, and their Constitutional right to receive necessary and appropriate mental health treatment is violated, CLA has the authority to pursue administrative, legal, and other appropriate remedies to ensure the protection of these vulnerable individuals. This lawsuit seeks to remedy the abuse, neglect, and rights violations inflicted on CLA’s Constituents at the ADX facility and
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elsewhere by agents of the U.S. Bureau of Prisons. Specifically CLA’s authority to sue the U.S. Bureau of Prisons for the relief sought is conferred by federal law. See 42 U.S.C. §10804(c); 42 U.S.C. §10805(a)(1)(A) & (B); and 42 U.S.C. §10807.
505. CLA is not required to exhaust the Bureau of Prisons “Administrative Remedies Program” (ARP) under the PLRA, 42 U.S.C. §1997e(a). CLA has met its exhaustion burden concerning administrative remedies, under 42 U.S.C. §10807, based on the following facts: (1) Administrative remedies are not appropriate in this case, because there are no administrative remedies available. The U.S. Bureau of Prison’s “Administrative Remedies Program” prohibits anyone from submitting a request or appeal on a prisoners’ behalf, see 28 C.F.R § 542.16; (2) CLA is exempt from the exhaustion requirement because this legal action is intended to prevent or eliminate imminent serious harm to ADX prisoners with mental illness; and (3) Requiring CLA to seek administrative remedies at this time (three years after the initial complaint was filed), is not appropriate and would most likely be a futile exercise. The abuse, neglect, and rights violations inflicted on ADX prisoners with mental illness has not abated since the filing of the Cunningham and Vega complaints, some three years ago. Given the fact that the filing of a lawsuit has not caused Defendant to correct all deficient practices at ADX, no administrative action by CLA is likely to change this picture. Also, the current posture of the Cunningham case leads CLA to believe there will be lengthy pretrial delays while class certification, settlement talks, and discovery proceed. Thus CLA has determined this lawsuit will not be resolved within a reasonable time, when the reasonableness of delay is measured by the ongoing suffering of ADX prisoners with mental illness. Requiring CLA to make an administrative remedies request prior to filing
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this lawsuit would unnecessarily delay the ultimate disposition of this case causing ADX prisoners with mental illness to endure more suffering.
506. CLA has the authority and standing to represent all inmates at ADX with significant mental illness or emotional impairment, even those who have not requested representation by CLA, since CLA is not using its federal allotment to provide representation to any ADX constituents, in accordance with 42 U.S.C. §10804(c); 42 U.S.C. §10805(a)(1)(A) & (B); and 42 U.S.C. §10807.
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 Case 1:12-cv-01570-RPM-MEH Document 382 Filed 11/16/16 USDC Colorado Page 1 of 42
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01570-RPM
HAROLD CUNNINGHAM, PERCY BARRON, ALPHONSO BLAKE, JABBAR CURRENCE, CARLTON DUNBAR, SCOTT FOUNTAIN, SEAN GILLESPIE, CHARLES HIPPS RONNIE HOUSTON, JOHN LAMB, HERBERT PERKINS, JOHN J. POWERS, ARNELL SHELTON, and MARCELLUS WASHINGTON,
each individually and on behalf of all others similarly situated,
and
CENTER FOR LEGAL ADVOCACY, D.B.A. DISABILITY LAW COLORADO
Plaintiffs,
vs.
FEDERAL BUREAU OF PRISONS,
Defendant. ___________________________________________________________________________
PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT TERMS AND PROPOSED NOTICE TO THE CLASS
___________________________________________________________________________
Plaintiffs respectfully move for entry of the accompanying order granting preliminary
approval of the proposed terms described below, and the form of the notice to be delivered to the
Plaintiffs and class members. In support of their motion, Plaintiffs incorporate the following
facts and legal authorities. As previously discussed with the Court, Plaintiffs also intend to

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submit an Appendix of additional supporting materials, including declarations from experts and counsel in further support of this motion. Those materials are still being developed, and will be provided before the fairness hearing scheduled for December 15 and 16, 2016. 1
I. PROCEDURAL BACKGROUND This putative class action involves the diagnosis and treatment of inmates with mental illness who are confined at ADX Florence, the federal “supermax” prison situated in Florence, Colorado. Plaintiffs contend that Defendant has not provided the level of mental health diagnosis and treatment required by the Eighth Amendment to the United States Constitution. Plaintiffs filed their original Complaint on June 18, 2012. See DKT 1. On April 23, 2013, the Court denied Defendant’s Motion to Dismiss. See DKT 58. Thereafter, Plaintiffs twice amended their Complaint, first on May 23, 2013, see DKT 67, and then again on June 15, 2015, see DKT 274. Plaintiffs’ Second Amended Complaint seeks sweeping injunctive relief concerning the diagnosis and treatment of mental illness among ADX inmates. See DKT 272. Plaintiff seek that relief on two distinct legal bases. First, a group of fourteen current and former ADX inmates request certification of a class and subclass under Fed. R. Civ. P. 23(b)(2) and 23 (c)(5). The proposed class consists of all inmates who were, as of the filing date of the original Complaint in this case, or are, or will be in the future, confined at ADX, see Second Amended Complaint, DKT 274, at ¶ 581, and seeks implementation of a constitutionally adequate program of mental health diagnosis and treatment, see id. at 194, §XIII, ¶ 2. The proposed subclass consists of all
1 The Defendant has authorized the undersigned to represent that Defendant does not oppose Plaintiffs’ request for entry of an order preliminarily approving the settlement agreement and proposed class member notice, or Plaintiffs’ motion for final approval of the proposed settlement, including the payment of attorney’s fees and costs. However, the Defendant does not adopt, join, or necessarily agree with the other statements set forth herein.
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ADX inmates diagnosed by Defendant with mental illness or serious mental illness, as those terms are further detailed in ¶ 581 of the Second Amended Complaint. On behalf of the subclass, the Second Amended Complaint seeks implementation of a program of treatment for mental illness and serious mental illness, as detailed in § XIII, paragraph 3 of the Second Amended Complaint. See Amended Complaint, DKT 274, at 195.
Second, and independently, Plaintiff Center for Legal Advocacy d/b/a Disability Law Colorado (“DLC”) asserts associational standing on behalf of the proposed class and subclass members to pursue claims for the same relief for the class and subclass members as has been requested by the putative class Plaintiffs. This standing arises from DLC’s designation by the State of Colorado and its subsequent receipt of allotments pursuant to the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI Act”), 42 U.S. Code §§ 10801, et seq. By order dated November 3, 2015, the Court held that DLC has standing to pursue claims for declaratory and injunctive relief for prisoners with mental illness housed at ADX. DKT 324, at 4.
Plaintiffs are pleased to report that after more than three years of negotiations with Defendant, and with the extensive assistance of United States Magistrate Judge Michael Hegarty, the parties have reached a negotiated resolution of all issues before the Court. As a result, Plaintiffs now request that the Court grant preliminary approval of the proposed settlement and approve a procedure for notice to the class and the content of that notice, in anticipation of the previously scheduled December 15, 2016, hearing concerning final approval of the proposed settlement, including the provisions for payment of attorneys’ fees and costs. The terms of the proposed settlement are reflected in the documents attached hereto as Exhibits 1, 2, 3, 4, 5, 6, 7 and 8. Versions of the proposed notice in English and Spanish are attached as
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Exhibits 10 and 11. This motion collectively refers to these ten documents as the “Settlement Documents.”
II. PRELIMINARY APPROVAL OF THE SETTLEMENT AGREEMENT IS NOW APPROPRIATE.
Under Fed. R. Civ. P. 23(e), a class action may not be dismissed or compromised without the approval of the court. A court considering dismissal or compromise of a class action “must direct notice in a reasonable manner” to members of the class who would be bound by the proposed settlement. Fed. R. Civ. P. 23(e)(1). Plaintiffs ultimately seek the Court’s determination that, under the standards set forth in Fed. R. Civ. P. 23(e)(2), the proposed settlement is “fair, reasonable, and adequate.”
As steps in that process, Plaintiffs now seek preliminary approval of the proposed settlement terms and approval of a form and method of notice to the class regarding the agreement. Although Fed. R. Civ. P. 23(e) does not specifically require that a court give preliminary approval to a proposed compromise or dismissal before providing for notice to the class, courts generally do so at the time that they order that notice be given to the class. See Federal Judicial Center, Manual for Complex Litigation (Fourth) §§ 21.632, 21.633 (2004); DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935, 939 (10th Cir. 2005).
As in other jurisdictions, preliminary consideration and, where appropriate, preliminary approval of proposed settlement agreements, have been widely used within the Tenth Circuit. See, e.g., Lucas v. Kmart Corp., 234 F.R.D. 688, 693 (D. Colo. 2006) (preliminarily approving a settlement agreement and scheduling a fairness hearing for a later date).
Plaintiffs respectfully submit that preliminary approval of the Settlement Documents is appropriate at this time. As detailed below, the Settlement Documents consist of a series of
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policies implemented, or to be implemented, by Defendant, together with an “Addendum” that details the settlement terms, including terms providing for the certification of a class and subclass for settlement purposes, the appointment and compensation of two psychiatric experts to monitor Defendant’s compliance with the settlement terms, the implementation of dispute resolution and enforcement provisions, and an award of attorneys’ fees and costs. The Addendum also provides for conditional dismissal of this case pursuant to Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379-382 (1994), and reflects the parties’ stipulation that the settlement agreement complies with the provisions for prospective relief set forth in the Prison Litigation Reform Act, 18 U.S.C. § 3626(a) (“PLRA”). For the reasons discussed below, Plaintiffs’ undersigned counsel respectfully submit that the Addendum and associated policies provide for a fair, reasonable, and adequate settlement of this matter.
A. The Proposed Class and Subclass Satisfy the Requirements of Fed. R. Civ. P. 23(a) and 23(b)(2).
Fed. R. Civ. P. 23(a) permits certification of a class only where the plaintiffs establish that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact that are common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. In this case, the proposed class Plaintiffs seek certification of the class and subclass under Rule 23(b)(2), on the basis that Defendant has acted and refused to act on grounds that apply generally to the class and subclass, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class and subclass as a whole.
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In Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), the United States Supreme Court observed as follows in evaluating whether and how a class may be certified in order to achieve settlement:
Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial. But other specifications of the Rule -- those designed to protect absentees by blocking unwarranted or overbroad class definitions -- demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold. See Rule 23(c), (d). Id. at 620. The Court also noted that “proposed settlement classes sometimes warrant more, not less, caution on the question of certification,” Id. n.16, and found that the purposes of Rule 23 mandate compliance with its terms, even for purposes of settlement: “Subdivisions (a) and (b) focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. That dominant concern persists when settlement, rather than trial, is proposed.” Id. at 621. Plaintiffs submit that even under these demanding standards, the Court may and should certify the proposed Plaintiff class and subclass for settlement purposes. As detailed in the Second Amended Complaint, the diagnostic and treatment failures that led to this lawsuit were widespread and affected most, if not all, of the inmates sent to ADX. Defendants routinely failed to properly diagnose and treat mental illness, and frequently disregarded or failed to comply with related responsibilities concerning such matters as suicide prevention and inmate discipline. Although the experiences of inmates at ADX vary to some extent based on factors such as their mental health, the duration of their confinement at ADX, and other individualized factors, the failures alleged in the Second Amended Complaint are common, the claims of the class Plaintiffs are typical of those of other members of the class and subclass, and the legal and
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factual issues underlying all class members’ claims are similar, and rooted in the same policies and practices.
Given the systemic failures that gave rise to this case and the nature of the impact of those failures on members of the class and subclass, the central inquiry here, under Rule 23(a) and 23(b)(2), is whether the proposed settlement fairly, reasonably, and adequately remedies those failures.
B. The Settlement Appropriately Redresses the Legal Claims of the Class. In broad terms, Plaintiffs’ claims relate to deficiencies in at least five major areas: (1) BOP’s failure to properly define the category of inmates whose mental illnesses could not be constitutionally treated at ADX and who therefore required exclusion from the institution; ( 2) BOP’s failure to adequately diagnose mental illness among inmates before their placement at ADX, and failure to identify and diagnose mental illness that developed following inmates’ placement at the facility; (3) BOP’s failure to provide ADX inmates with constitutionally compliant medication, psychotherapy, and other mental health resources and services; (4) BOP’s failure to manage discipline, suicide prevention, and other programs in a manner that protects the rights of inmates with mental illness; and (5) BOP’s failure to train ADX staff members concerning mental illness. As set forth below, the Settlement Documents provide comprehensive relief to the class and subclass with respect to these failures, and also address a wide variety of other matters that impact the mental health of members of the class and subclass. Before detailing many of the constitutional failures that precipitated this lawsuit, and describing how the proposed settlement seeks to resolve those failures, Plaintiffs believe that it is appropriate to acknowledge the strides that BOP has made to correct the conditions that existed at ADX at the outset of this dispute. By any measure, ADX is a different place than it
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was in 2011. Nearly 100 mentally ill men have been transferred to other facilities. BOP has activated three new high security mental health treatment units in other facilities, which now house and care for many people with mental illness who spent years at ADX. On its own initiative, BOP is also exploring new programs for inmates who remain at ADX, including one designed to prepare inmates for release into the community and another designed to more humanely house long-term ADX inmates who have no recent history of institutional violence. Many staff members at ADX and elsewhere within the BOP now understand mental illness better, and deal more humanely with inmates who struggle with mental health problems. And many of the staff members at ADX are more open to ideas and information about inmates with mental illness than they used to be.
In particular Plaintiff’s undersigned counsel wish to specifically and gratefully acknowledge in particular Chris Synsvoll and Kaitlin Turner of the BOP legal department at ADX, Amy Padden at the United States Attorneys’ Office, and BOP General Counsel Kathy Kenney. As BOP gained an understanding of the issues this case set out to correct, these four individuals have, along with certain of their colleagues, responded to countless suggestions, requests, demands, concerns and complaints in a professional, receptive and humane fashion. Likewise, while certain abhorrent behavior by BOP personnel is referred to below to illustrate the necessity and efficacy of specific settlement terms, Plaintiffs’ counsel also acknowledge that many of the correctional officers and other staff members who work at ADX do an excellent job in a challenging and dangerous environment.
Unfortunately, some problems remain. An inmate named Boyd Higginbotham, who had serious mental illness therefore should have been removed from ADX, was instead neglected by BOP mental health professionals and committed suicide at ADX on Christmas Eve 2015. Some
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staff members – including at least one current ADX psychologist – remain resistant to the changes required by the proposed settlement, and appear likely to run afoul of the Monitors and enforcement processes. And other diagnostic and treatment problems continue to emerge. Plaintiffs believe that the monitoring and enforcement terms included in the Settlement Documents will improve conditions further. Despite the work that remain, Plaintiffs do not mean, by what follows, to discount the substantial effort that BOP has made, the many positive results that BOP has achieved, or the professionalism and decency of the many BOP representatives who have demonstrated a personal commitment to honoring the rights and dignity of inmates confined at ADX.
1. The settlement establishes exclusionary criteria and mental health care levels to facilitate the identification of inmates who, because of serious mental illness, cannot properly be treated at ADX and must therefore be excluded from the facility.
ADX is a purpose-built facility that is designed to house, and control, inmates considered by the BOP to be violent, dangerous, or otherwise in need of the highest level of security available in any BOP facility. The physical layout of the facility makes providing intensive mental health treatment difficult. In addition, most inmates at ADX live in extremely isolating conditions that are hard on even the most robust inmates, and can be psychologically devastating for inmates with mental illness. For these reasons, among others, BOP policy has for many years precluded the placement at ADX of inmates with serious mental illness.
However, previous BOP policies have not set forth clear standards for determining what constitutes “serious mental illness” for these purposes. BOP policies also failed to provide sufficient guidance concerning the specifics of the treatment to be afforded to inmates with varying degrees of psychological impairment. The policies included in the Settlement Documents address these shortcomings with specific exclusionary criteria and definitions of
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mental health care levels and correlated treatment requirements. Plaintiffs believe that if BOP complies in good faith with those provisions of its revised policies, the goal of eliminating serious mental illness from ADX inmate population will be substantially achieved.2
2. Ensuring constitutionally adequate diagnosis before and after inmates arrive at ADX and providing a mechanism for the ongoing review of inmates’ mental health.
BOP policy has long required that inmates being considered for placement at ADX receive a mental health evaluation and related “due process hearing” before being designated to ADX, and that inmates be screened for mental health problems after arriving and on a periodic basis thereafter. But in practice, when Plaintiffs’ counsel began investigating in 2011, ADX was brimming with inmates who had mental illness, many of whose mental illness was serious by any reasonable interpretation. Some inmates never got a meaningful pre-transfer mental evaluation, and others received their “pre-transfer” evaluation months or in some cases years after arriving at ADX. Prevailing conditions at that time and continuing into 2012 and 2013 are detailed throughout the Second Amended Complaint and even more clearly in Plaintiff DLC’s September 30, 2013, emergency motion for a preliminary injunction ordering Defendant to transfer ADX prisoner, Jonathan Francisco, for a medical evaluation, and treatment, DKT 99. In explaining why the transfer of Francisco was necessary, Plaintiffs’ motion described in horrible detail the neglect of another inmate named Richie Hill, whom BOP has since admitted suffers from a severe and debilitating mental illness, but who was nevertheless allowed to languish at ADX for six years, much of which he spent encrusted in his own body waste and shuffling around his cell (or lying on its floor) in obvious and devastating psychological distress. All the 2 Given the unique mission of ADX and the fact that it houses some inmates who are legitimately deemed to be extremely dangerous, the Settlement Documents do contemplate that an inmate may need to be housed at ADX despite serious mental illness, if his security needs cannot be managed anywhere else in the BOP. But in such circumstances the policies provide for the delivery of constitutionally adequate mental health care.
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while, BOP personnel persistently failed to recognize his mental illness for what it was. He ultimately was transferred to a BOP medical facility only when he was literally near death, wracked by severe malnutrition and systemic staph infections that nearly resulted in the amputation of his legs. Unfortunately, the neglect of Mr. Hill as ADX was not an isolated incident; many other inmates with similarly obvious problems were similarly ignored, neglected and in many cases abused.
The proposed settlement addresses past screening and diagnostic failures by requiring, in detailed terms, mental health evaluations before an inmate may be placed at ADX, an evaluation following arrival, and ongoing review of inmate mental health in a fashion calculated to identify and facilitate the proper diagnosis of mental illness.
3. Ensuring constitutionally adequate mental health treatment. Like BOP’s systemic diagnostic failures, its treatment failures are detailed at length in the Second Amended Complaint. For example, longstanding BOP policy prohibited the placement of an inmate taking psychotropic medication in ADX Control Unit, the facility’s most restricted and isolating housing unit. In practice, as of 2011 BOP personnel interpreted that wellintentioned policy to prohibit the administration of psychotropic medication to Control Unit inmates, whether or not they needed it. Consequently, inmates’ prescribed medications were frequently discontinued in order to render them “eligible” for a Control Unit placement. The record is literally saturated with details of like failures in virtually every aspect of ADX mental health treatment program. Inmates had no opportunity to speak privately with clinicians, and therefore frequently were unable to seek meaningful help for the debilitating effects of such traumas as childhood sexual abuse, which no one would be comfortable discussing where everyone within earshot could hear. Psychologists dressed in riot gear
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sometimes participated as correctional officers in violent, calculated efforts to subdue inmates, a practice that eliminated any possibility of developing the trust needed between a clinician and a mentally ill patient. Medications were changed or discontinued on a whim, sometimes for disciplinary reasons, or were mixed up or not delivered at all. Desperate calls for help from suicidal inmates were never responded to. And at least 14 separate pro se lawsuits by ADX inmates seeking care for mental illness were ignored by the BOP and dismissed on technical grounds without ever receiving a serious examination, or precipitating an investigation by BOP into why so many ADX inmates were suing for the very same thing, year after year.
The proposed settlement addresses these and other known failures in a comprehensive fashion. The prohibition of psychotropic medication in the Control Unit has been eliminated. New polices regulate the administration of medication, prohibit clinicians from participating in calculated uses of force absent emergency circumstances, and impose specific timelines for responding to requests for mental health services. BOP has constructed and is using confidential spaces for secure, safe mental health consultations, as well as secure facilities for group mental health therapy. And the ADX mental health staff has more than doubled in size. Virtually every aspect of ADX mental health system and related processes – such as discipline for inmates with mental illness – has been reviewed, revised, and made more specific.
4. Improving ADX discipline, suicide prevention, recordkeeping, staff training, and other programs that protect the rights of inmates with mental illness.
Not long ago, ADX inmates who harmed themselves because of mental illness, or who attempted suicide, were often punished with the suspension of the scant privileges available to them, such as the opportunity to make two fifteen minute phone calls per month to friends and family members. One inmate who nearly killed himself by slashing his throat with a razor was stitched up and returned to the same cell, still fouled with his blood and with the razor still
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sitting on the sink, from which the inmate retrieved it and again attempted to end his life. Another inmate literally ate his finger while in a fit of psychosis, and was asked by an ADX staff member what the finger tasted like. Yet another nearly died after he followed a BOP directive requiring that he report suicidal thoughts, was ignored, and then swallowed hundreds of pills. And BOP’s oversight of inmates with mental illness was so deficient even after this case was filed that former ADX inmate Richie Hill was reduced to slithering naked on the floor of his cell, wallowing in his own body waste and suffering from malnutrition so severe that he had lost more than 50 pounds in six months and was reduced to eating pebbles and his own feces. At the very same time, he developed nearly lethal staph infections in both legs because he was delusionally trying to dig “diamonds” out of his flesh with filthy hands. He was finally evacuated on an emergency basis to a BOP hospital, where records reflect that he nearly died. Yet shortly before his evacuation, a BOP record authored by the then-chief psychologist at ADX noted nothing out of the ordinary and states that Hill “appeared alert and relaxed” and would “continue to be monitored during unit rounds.”
These and the many other failures described in the record in this case resulted from a confluence of closely related problems with the institution’s policies and staff. Staff members were not trained to recognize and properly address mental illness. They were conditioned to believe that inmates who acted out were faking mental illness for so-called “secondary gain.” They administered ADX inmate discipline and suicide prevention policies – among other institutional protocols – without regard to the reality that, by 2011, at least a quarter of ADX population exhibited serious signs and symptoms of mental illness. And they were accountable to no one: they ran the prison they proudly called “the Alcatraz of the Rockies,” housed the supposed worst of the worst, had terminated virtually all press access to the facility following
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the 9/11 attacks, and were convinced that they had all the answers and needed not answer to anyone about anything.
The proposed settlement addresses these related problems in several ways. It requires the involvement of mental health professionals in disciplinary processes involving inmates with known or suspected mental health issues. The suicide prevention program has been substantially revised, as has been protocol for responding to urgent inmate requests for mental health counseling. The settlement requires specific staff training, and includes ongoing monitoring – described in greater detail below – by experts in correctional mental health who were involved in negotiating and drafting the policies they will be monitoring. And the fact and outcome of the litigation itself has informed the staff in unmistakable terms that people are watching, that mental illness does in fact occur in ADX inmate population, and that they will be held accountable when they fail to do what BOP policy and the Eighth Amendment require.
C. The Settlement Agreement Establishes Effective and Efficient Mechanisms to Implement Reform.
The parties spent substantial time developing effective mechanisms to produce the changes that both parties desire. First, perhaps the most critical characteristic of the proposed settlement is that, if adopted by the Court, it will be fully-enforceable by court order, because it complies with the requirements of the PLRA set forth in 18 U.S.C. § 3626(a)(1)(A). This ensures that the parties have the appropriate incentives and tools to achieve and sustain compliance in the minimum amount of time.
Court-enforceability, by itself, is not enough to produce compliance. In addition, the proposed settlement establishes a comprehensive enforcement structure that guides the litigation toward termination by establishing mechanisms to assist the BOP in achieving compliance with the terms of the settlement. One of the most important of these mechanisms is the designation of
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two Monitors with professional training and experience in evaluation and supervision of correctional mental health programs in the areas covered by the proposed settlement. The proposed settlement also provides for a tiered dispute resolution process that is designed to allow compliance concerns to be quickly addressed in an efficient fashion, to involve Judge Hegarty as necessary to help mediate disputes that are not quickly resolved, and to bring to this Court any remaining compliance issues for timely and effective enforcement proceedings.
Both of the Monitors designated by the proposed settlement have outstanding credentials. Jeff Metzner and Sally Johnson are both psychiatrists. Each has decades of experience in correctional mental health, as reflected in the CVs attached as Exhibits 11 and 12, respectively.
Dr. Metzner both maintains a private psychiatry practice and serves on the faculty of the University of Colorado Medical School. He has practiced psychiatry for more than 35 years. Early in his career he was the Chief of Psychiatry at both the Colorado State Penitentiary and the Division of Forensic Psychiatry at the Colorado State Hospital. Since that time he has become one of the nation’s most respected experts in correctional mental health. Among other professional engagements, he has served as an expert witness and/or consultant in a number of important jail and prison reform cases, consulted with various correctional systems on mental health management issues, advised judges as a court-appointed independent advisor in such matters as the seminal Madrid v. Gomez case, which involved mental health and other issues at California’s Pelican Bay supermax facility, and has years of experience as a court appointed monitor in institutional reform cases, including one involving one of the largest jails in the United States. He has also been a Certified Correctional Health Professional for more than 20 years, was an Accreditation Surveyor for National Commission on Correctional Health Care
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from 1995 to 2006, played a pivotal roles in formulating the formal position of the American Psychiatric Association on housing inmates with mental illness in solitary confinement, and has authored many scholarly publications on that and related issues.
Dr. Johnson is currently a Professor in the Department of Psychiatry at the University of North Carolina at Chapel Hill, where she helped develop the recently launched Forensic Psychiatry Program and Clinic. She conducts forensic evaluations in criminal and civil cases and consults regarding issues at the interface of psychiatry and law. Dr. Johnson also teaches within the psychiatry training programs at both UNC and Duke, and also has appointments the law schools of both UNC and Duke University, where she a Senior Lecturer in Law and teaches seminars in Psychiatry and Law. Dr. Johnson completed career service as a Captain in the United States Public Health Service, where she served as a psychiatrist and administrator for the BOP. During her tenure there she developed BOP’s forensic evaluation and training program and served as associate warden for health services, administrating inpatient and outpatient medical and mental health programs. She has extensive experience conducting forensic evaluations and serving as an expert witness for the federal courts and has consulted with federal and state agencies and programs about psychiatric care and mental health needs of incarcerated individuals.
Importantly, Drs. Metzner and Johnson are already intimately familiar with this case and the issues that gave rise to it. Plaintiffs engaged Dr. Metzner in the summer of 2011 to advise on mental health and related correctional issues, and Dr. Johnson has served as the BOP’s mental health expert in this case since at least 2013, if not earlier. Both were intimately involved in developing the Settlement Documents, attended multiple settlement meetings, and played key
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roles in drafting the policies they are now being proposed to monitor. Both also played active roles in completing mental health evaluations of more than 130 ADX inmates in August 2014.
In short, the proposed Monitors are probably the two people on the planet best suited to monitor the proposed settlement. They also have the confidence of the parties, and enjoy a strong professional working relationship forged in this and other matters.
The Settlement Documents empower the proposed Monitors to fulfill their obligations. Both proposed Monitors were directly involved in the terms of the proposed settlement that provide them with guaranteed access to the records and other information they say they need to monitor compliance. They will also conduct on-site inspections no less frequently than three times per year during the first two years, meet with representatives of both parties following each such inspection, and issue written compliance reports, which will be available in the event of a compliance dispute.
The Settlement Documents are also structured to not only produce evidence related to compliance, but also to promptly and effectively resolve any disputes about compliance. In particular, the proposed settlement creates a specific, time-limited structure for raising and escalating any compliance issues, culminating with the involvement of Judge Hegarty and, if necessary, this Court, which will remain vested with the full power to enforce the settlement terms.
The Settlement Documents also provide for additional monitoring by DLC of inmate complaints regarding the implementation of the Addendum. DLC will draft a notice letter and Defendant will distribute the letter advising current ADX inmates and new inmates that arrive during the compliance period of its existence and availability to receive complaints regarding the implementation of the Addendum. DLC is also empowered to resolve any complaints that it
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receives in accordance with the provisions of the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. §10801, et seq. and the dispute resolution section of the Addendum.
Finally, the proposed settlement is designed to not only ensure compliance at ADX, but also to protect the rights of ADX inmates with mental illness who are or will be transferred to three high security mental health programs that BOP has created in response to this case. Those units, located at the United States Penitentiaries in Florence, Colorado, Atlanta, Georgia, and Allenwood, Pennsylvania, collectively house about 80 inmates, many of whom are or were members of the class and subclass defined in the Second Amended Complaint. Although participants in these programs no longer are housed at ADX and likely never will return there, Plaintiffs’ counsel insisted that the settlement provide in some meaningful way for the continuing well-being former class members while housed in the new programs.
The proposed settlement addresses that priority in two ways. First, the Settlement Documents provide that the proposed Monitors will monitor policy compliance not only at ADX but also at the specialized high security mental health program at USP Florence, which is known as the Secure STAGES Program. The Secure STAGES Program focuses on inmates who have been diagnosed with borderline personality disorder and have a history of self-harm. Under the proposed settlement, the program will be monitored by the proposed Monitors subject to the same terms, conditions and enforcement protocols that apply to ADX.
The other new programs, at USP Atlanta and USP Allenwood, are subject to a different oversight process. They will not be monitored, but instead are subject to the Agreement attached as Exhibit 9. The parties do not seek formal Court approval of that Agreement, because it is not formally among the Settlement Documents and is not subject to enforcement in the same way as
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the other Settlement Documents. 3 But the fact that the settlement negotiations yielded the Agreement is nevertheless material as a further indicator that the settlement is fair and reasonable to the inmates involved in this case, even if they no longer reside at ADX.
In summary, the proposed settlement promises to comprehensively remedy the many violations of the rights of the class and subclass regarding mental health care at ADX, and to do so as quickly and efficiently as possible, while providing Defendant with expertise to assist in these tasks, and ensuring expert assistance to the Court in evaluating the parties’ claims of compliance and non-compliance. As such, it is a model of a “fair, reasonable, and adequate” settlement of the claims of the class.
D. Other Relevant Factors Support Approval of the Settlement Agreement. In addition to considering the relief afforded the class and subclass in comparison to their legal claims, courts consider factors related to the circumstances of the parties’ negotiations in evaluating whether a class settlement should be approved. In particular, courts examine whether there is any probability that the settlement is collusive. 7B Charles Alan Wright et al., Federal Practice and Procedure § 1797.1 (3d ed. 2005). A court may take into account class counsel’s recommendation regarding the proposed settlement, but must be vigilant to assure that class counsel is truly acting in the interest of the class. Id. Thus, this court should examine the adequacy of the representation of the class and similar matters that, aside from the merits of the proposed settlement, shed light on the probability that the settlement is in the interest of the class. 3 During this litigation, BOP objected to this Court’s the exercise of jurisdiction over inmates that BOP chose to move to facilities outside Colorado. In response, Plaintiffs noted, among other things, that the Court has jurisdiction over BOP, and thus has the power to direct the BOP to take action, including action concerning inmates who were in Colorado when the case was pending but whom the BOP moved elsewhere. The Agreement does not resolve this dispute; rather, it preserves all parties’ positions if the issue needs to be litigated in the future. See Exhibit 9, at ¶¶ 5 and 6(b).
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This analysis includes how well informed class counsel were when they negotiated the settlement and whether counsel engaged in arm’s-length negotiations. See Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273, 284-90 (D. Colo. 1997) (approving a settlement agreement after considering factors related to assessing whether the settlement was reached as a result of good-faith bargaining without collusion and with a full exploration of the merits of the claim by Plaintiffs’ counsel who possessed sufficient experience to evaluate the claim accurately, as well as an objective assessment of additional factors that bear on the determination that the settlement is in the interest of the class). The specific factors that must be considered by the court in assessing whether the settlement is fair and reasonable under Rule 23 include: “(1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties and their counsel that the settlement is fair and reasonable.” Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 324 (10th Cir. 1984). The record in this case supports a conclusion that the proposed settlement is appropriate in light of these four factors.
1. The settlement was fairly and honestly negotiated. This settlement resulted from hard-fought negotiations over more than three years, pursued by counsel with undivided loyalty to the class. The agreement was negotiated only after Plaintiffs’ counsel had engaged in an extensive investigation of conditions at ADX, reflected in substantial evidence of constitutional violations summarized in the Second Amended Complaint DKT 274, Plaintiffs’ Motion for Class Certification, and the Declarations supporting that Motion DK 148, and Plaintiff DLC’s Emergency Motion for a Preliminary Injunction
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concerning Jonathan Francisco DKT 99. Before completing the negotiations, Plaintiffs received

substantial informal discovery from Defendant, including access to medical and psychology

records of class members and former class members. Class counsel also conducted hundreds of

inmate interviews, received thousands of letters from current and former ADX inmates, and

received tens of thousands of pages of records from inmates and under FOIA.

Plaintiffs were also advised in connection with the settlement by a highly qualified panel

of experts and consultants, including, over time, the following:

x

Jeff Metzner, MD, whose qualifications are summarized above and in Exhibit 12.

x

Doris Gundersen, MD, a noted forensic psychiatrist who, at Plaintiffs’ expense,

conducted more than 30 forensic evaluations of ADX inmates and participated

actively in the settlement negotiations.

x

Craig Haney, PhD, a psychologist who has devoted his 40-plus year career to

correctional mental health, generally, and to studying solitary confinement and its

impact on inmates, in particular.

x

Phil Wise, a former Assistant Director of the BOP who during his long tenure

with the BOP oversaw the agency’s psychology program, served as Warden of a

BOP medical facility, and played a key role in developing and executing BOP

policy as a member of the agency’s executive staff.

x

Mark Bezy, a retired BOP Warden who served in many correctional roles at high

security BOP facilities, including USP Marion, which preceded ADX as the

BOP’s highest security institution, and USP Terre Haute, which houses the

federal death row and, as such, is responsible for the secure housing of some of

BOP’s more dangerous inmates.

x

Steve Cambra, a longtime corrections official and expert who spent his career in

high-security corrections in California, including serving as the Warden of the

Pelican Bay supermax facility charged with implementing the court orders in the Madrid v. Gomez case,4 and as Acting Director of the California Department of

Corrections.

Plaintiffs also conferred extensively with nationally recognized experts in prison reform,

including in particular David Fathi, head of the National Prison Project of the American Civil

4 889 F. Supp. 1146 (N.D. Cal. 1995) 21

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Liberties Union and one of the most experienced prison reform litigators in the world; John Boston, who literally wrote the book on the Prison Litigation Reform Act and related legal issues impacting prison litigation; and Margo Schlanger, a University of Michigan law professor who is a leading authority on civil rights issues and civil and criminal detention, and a former lawyer in the Civil Rights Division of the United States Department of Justice who, in that capacity, was involved in litigating prison civil rights cases brought by DOJ against state and local correctional systems. She also has served as the Officer for Civil Rights and Civil Liberties at the U.S. Department of Homeland Security, and is currently the court-appointed settlement Monitor for Adams v. Kentucky Department of Corrections, a statewide civil rights lawsuit dealing with conditions of confinement for Kentucky's deaf prisoners. While the form and content of the Settlement Documents are the responsibility of Plaintiffs’ counsel, the foregoing resources significantly informed the course and proposed resolution of this case, and provide further assurance that the outcome is fair, reasonable, and informed.
The negotiations were also meticulous, and at times contentious. Formal mediation sessions lasted at least 200 hours over dozens of sessions. The parties’ representatives also had many additional hours of less formal negotiations between mediation sessions. Both sides produced multiple edited drafts of the settlement agreement and related policies, as well as various communications responding to inquiries from Magistrate Judge Hegarty. At times, it was unclear whether, even with Judge Hegarty’s help, the parties could find a path forward to agreement. Indeed, as the Court is aware, the parties broke off negotiations for nearly a year, from 2015 until early 2016.
Moreover, in order to separate fee considerations in every way possible from negotiations of the substantive provisions of the settlement, Plaintiffs’ counsel refused to
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negotiate fees until after reaching agreement on the merits. A review of the provisions for partial

payment of the attorneys’ fees and expenses of Plaintiffs’ counsel demonstrates that the

circumstances do not suggest self-dealing by Plaintiffs’ counsel. The one area in which

Plaintiffs’ counsel were forced to make significant compromises with Defendants was in the

provisions for attorneys’ fees, in which Plaintiffs’ counsel settled for a sum far below their

actual claim. See § III, infra. Moreover, all fees paid to Plaintiffs’ principal counsel at Arnold &

Porter are being donated to charitable causes. Accordingly, the first factor supports preliminary

approval.

2.

Serious questions of law and fact exist, placing the ultimate outcome of the

litigation in doubt.

This is a complex case, both legally and factually. Chief among the legal complications

is the PLRA, which severely restricts the remedies available in a case like this, and limits the

Court’s enforcement powers. Another potential legal hurdle lies in the concepts of voluntary

cessation and mootness. It is undisputed that since 2011 BOP has changed many things at ADX.

Although strong arguments against mootness exist, there is no assurance that this court or the

Tenth Circuit Court of Appeals would conclude that none of Plaintiffs’ claims are moot. Yet

another challenge for Plaintiffs arises from the Shook decisions, with which the Court is

intimately familiar. While Plaintiffs believe that class certification is appropriate for the reasons

set forth in the class certification motion they filed, there is no assurance that this Court – or the

Tenth Circuit – would concur. Likewise, DLC’s involvement in the case – and in particularly its

associational standing claim – raise novel legal issues on which there is scant decisional

authority. Plaintiffs contend that this Court correctly resolved those issues in Plaintiffs’ favor,

but again there is no assurance that an appellate court would reach the same conclusion. Finally,

in this as in all prison conditions cases, proving Eight Amendment violations and substantiating

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the need for related remedies can be challenging, given the applicable “deliberate indifference” standard. For these and myriad other reasons, the legal landscape of this case is littered with uncertainty and potential pitfalls and appellate issues.
The factual background here is also complicated, because it involves almost countless individual medical judgments and diagnostic determinations concerning very complex people who live in a surreal setting. Many of the Plaintiffs have multiple psychological problems, and a number also have medical or neurological issues that affect both the symptoms they present and the proper overall program of care for their various conditions. They all live in one of the most isolating places in civilization, a fact that itself impacts how they feel and act. Many also have engaged in violence even in high security environments, which complicates how clinicians interact with them and thus are able to diagnose and treat their conditions. Some have a propensity for exaggeration or outright manipulation, and many experience volatile moods that interrupt their ability and inclination to interact with Plaintiffs’ counsel. Others see, hear, and believe things that are rooted in paranoia that may result from a mental health problem, but also may result from a quite real fear of potential harm. And even without the complications created by ADX and the individual Plaintiffs’ correctional histories, by definition many of the inmates involved in this case have mental illness and therefore present unique and sometimes serious challenges with respect to how they perceive, recall, and report events. Those realities obviously would affect the content and quality of their testimony in any trial, which in turn may impact how their claims are understood and resolved.
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3. The value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation.
The third adequacy factor, involving the anticipated duration and expense of additional litigation and what might result from continuing the lawsuit, strongly weighs in favor of approval of the proposed settlement. While Plaintiffs have developed strong evidence of multiple violations of the Eighth Amendment, further litigation would involve substantial additional discovery and completion of class certification briefing and argument. A trial that would be lengthy, factually complex, and probably unprecedented from the perspective of security logistics, given the nature of the class members. As well, any trial of all the claims that are resolved by the proposed settlement would involve substantial expenditures relating to testimony by a number of experts on each side, as well as the eventual attorneys’ fees that such a trial would be likely to entail. As demonstrated in the previous subsections of this motion, the relief obtained on each substantive issue is essentially co-extensive with the relief that could have been obtained after litigation, so that litigation would not have gained a mandate for more extensive relief. Thus, the value of immediate recovery supports approval of the proposed settlement.
4. Most of the Plaintiffs, and all of their lawyers, believe that the settlement is fair and reasonable.
This fourth factor, involving the parties’ judgement, weighs in favor of approval of the proposed settlement. As the Court is aware and as will be evident at the fairness hearing, not all of the Plaintiffs fully support the proposed settlement, and one, Harold Cunningham adamantly opposes it. However, as noted above, Plaintiffs’ lawyers consulted with independent experts in the course of negotiating the settlement, so that counsel’s negotiations were consistently pursued with a full understanding of the range of litigation options available to the class. In addition to Plaintiffs’ attorneys’ consultations with experts, Plaintiffs’ counsel interviewed the plaintiffs and
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many other class members to ensure that they also had a voice in determining the priorities of Plaintiffs’ counsel in negotiating a settlement. While it obviously is too early to assess whether other class members will express opposition to the proposed agreement after they receive notice, this factor is simply not relevant to a Court’s consideration of whether preliminary approval of a proposed settlement should be granted, and Plaintiffs’ counsel submit that in the end their judgment about the virtues of the proposed settlement is supported by all available evidence. See Lucas, 234 F.R.D. at 695 ( “[c]ounsels’ judgment as to the fairness of the agreement is entitled to considerable weight.”) Counsel have devoted more than five years of backbreaking effort to protecting some of the most damaged and vulnerable people in our society, and have taken great care to consider all relevant information in formulating and negotiating the proposed settlement. Counsel respectfully submit that those efforts, and the absence of any economic or other personal motive on their part, justify placing great weight on their collective conviction that the proposed settlement is fair, reasonable, and adequate.
III. THE PROPOSED AWARD OF ATTORNEYS’ FEES AND COSTS IS REASONABLE
Pursuant to Fed. R. Civ. P. 23(h) and 54(d)(2), at the fairness hearing Plaintiffs will request that the Court approve the award of attorneys’ fees and costs included in the proposed settlement. The requested award is authorized by Rule 23(h), which provides that “[i]n a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.”5
The proposed settlement awards Plaintiffs’ counsel a total of $916,221 in costs and $2,933,779 in fees, in full satisfaction of their claim for attorney fees and costs for work that led 5 Other out-of-pocket expenses incurred during federal civil rights litigation may be awarded as attorneys’ fees if: “(1) the expenses are not absorbed as part of law firm overhead but are normally billed to a private client, and (2) the expenses are reasonable.” Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1995).
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to the proposed settlement. Plaintiffs’ forthcoming Appendix of further materials in support of the proposed settlement will include detailed information concerning the request for fees and costs, including supporting declarations from independent experts. Those materials will show that Plaintiffs’ counsel has thus far invested more than $17 million in attorney time, and more than $1 million in out-of-pocket costs, in the course of this matter. Given the massive investment of time and effort that was needed to bring this matter to a successful conclusion, the proposed award, which totals roughly 17% of the fees incurred and all of the out of pocket costs, is eminently reasonable and should be approved.
1. In a case such as this, which involves a negotiated fee award, the Court should apply the lodestar method to assess whether the fee and cost award negotiated by the parties is fair and reasonable to the class members.
“[T]here are two generally accepted means for awarding attorneys’ fees in class action suits, the so called lodestar method—determining fees based on the hours worked and a reasonable hourly fee—and the percentage-of-the-fund method—awarding fees based on a reasonable percentage of the overall award.” Ramah Navajo Chapter v. Babbitt, 50 F. Supp. 2d 1091, 1095 (D.N.M. 1999). The Supreme Court has noted that “the lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorneys' fee.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010) (internal quotation marks omitted).
Under the lodestar method: To determine a reasonable attorneys fee, the district court must arrive at a ‘lodestar’ figure by multiplying the hours plaintiffs’ counsel reasonably spent on the litigation by a reasonable hourly rate. The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” As to services provided by non-lawyers, if “law clerk and paralegal services are ... not reflected in the [attorney’s fee], the court may award them separately as part of the fee for legal services. The court should scrutinize the reported hours and the suggested rates in the same manner it scrutinizes lawyer time and rates.” Thus,
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under the rubric of 42 U.S.C. § 1988 “attorney’s fees,” the fees for attorneys, law clerks, and legal assistants are all determined in the same fashion: multiplying reasonable hours by reasonable rates to reach a “lodestar” amount. Case v. Unified School District No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998) (citations omitted). The Court’s determination of whether the fees provision is fair and reasonable, in light of the lodestar method, should be informed by a number of factors that support deferring to the parties’ agreement here. First, it is well settled that district courts have considerable discretion in awarding attorneys’ fees. See Brown v. Phillips Petroleum Co., 838 F.2d 451, 453 (10th Cir. 1988) (citing United States v. Anglin & Stevenson, 145 F.2d 622, 630 (10th Cir. 1944), cert. denied, 324 U.S. 844 (1945)). Because there has been no objection to the attorney fee agreement and because both Plaintiffs’ and Defendant’s counsel handled the case with “responsibility, thoroughness, and diligence,” the parties’ agreement as to attorneys’ fees should be approved. In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 636 (D. Colo. 1976). The Court’s duty in such a situation is to be “fair to class members . . . and the attorneys whose efforts and professional abilities have produced the recovery.” Id. at 636. In addition, the potential award of a much larger attorneys’ fee; the comprehensive relief afforded by the proposed settlement agreement; the experience of Plaintiffs’ counsel; and the years of hard-fought litigation prior to the settlement all point to the reasonableness of the negotiated fee. See id. at 629. In sum, the Court’s task is not to independently determine how much to award, but rather to assess whether the negotiated amount is fair and reasonable in the overall context of the case, and settlement terms: [T]he court’s task in reviewing negotiated fees is different from the court’s task in fashioning fee awards from scratch. The court is simply to determine whether the negotiated fee is facially fair and reasonable. This task requires the court to review the settlement agreement as a whole, including the fee award, to ensure
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that it was fairly and honestly negotiated, is not collusive, and adequately protects the interests of the parties. Stratton v. Glacier Ins. Admin'rs, Inc., No. 1:02-CV-06213 OWW DLB, 2007 WL 274423, at *17 (E.D. Cal. Jan. 29, 2007) (citing Robbins v. Alibrandi, 25 Cal. Rptr. 3d 387, 397 (Cal. App. 2005)).6 Under the unique circumstances of this case, the agreed-upon fee and cost amounts are more than fair, and eminently reasonable. 2. For purposes of the lodestar analysis the hourly rate for professionals’ time
must be calculated under the Equal Access to Justice Act. In this and any other case seeking injunctive relief against the federal government, the hourly rates used in the lodestar calculation are set by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. As pertinent here, the EAJA provides: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). Both pre-litigation and litigation conduct may form the basis of a fee award. For the purposes of the EAJA, “the position of the United States” refers to both the “position taken by the United States in the civil action, [and] the action or failure to act by the agency upon which the civil action is based.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (authorizing fees based, in part, on an Administrative Law Judge misrepresenting expert testimony in the social security benefit decision that was the basis of the action). Fees “should be
6 See also Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003) (“Attorneys’ fees provisions included in proposed class action settlement agreements are, like every other aspect of such agreements, subject to the determination whether the settlement is fundamentally fair, adequate, and reasonable.”) (internal citations omitted).
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awarded where the government’s underlying action was unreasonable even if the government advanced a reasonable litigation position.” Id. at 1174 (internal quotation marks omitted).
Without litigating or agreeing on the existence, substantial or otherwise, of a justification of the BOP’s conduct, the parties have agreed that a fee award is appropriate. That agreement is reasonable for several independent reasons, each of which independently reflects the absence of substantial justification for the government’s pre-litigation decisions and actions, and certain aspects of its conduct during the litigation.
First, Plaintiffs’ counsel approached the government concerning a potential resolution both very early in Plaintiffs’ investigation and shortly after the original Complaint was filed, but was unable to interest the government in settlement discussions until after the case had been pending for more than a year and had necessitated intensive effort by Plaintiffs’ counsel. Second, the record makes clear that many of the failures that led to this case and propelled it forward cannot in any way, shape, or form be deemed substantially justified. Rather, the BOP officials responsible for ADX were willfully blind, for years, to a human tragedy that was plainly evident in an inmate population that is one of the most closely monitored groups of human beings in the world. Third, before this case was commenced, BOP had been sued at least 14 times for the same basic issues by pro se ADX inmates. In every case, the BOP sought and was granted a procedural dismissal, and then did nothing to investigate the underlying merits of any of the cases. Fourth, for years ADX inmates literally flooded the in-boxes of BOP officials at ADX, the BOP’s regional office and the BOP’s central office with hundreds, if not thousands, of administrative remedy requests that literally begged for mental health treatment. Few, if any, of those requests received any meaningful review or response. Instead, BOP characteristically
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sought to reject them on such technical grounds as they raised too many issues, or attached too

many supporting pages.

For these and other reasons, the conduct of BOP that precipitated this case was not

substantially justified. A fee award is therefore authorized under EAJA.

The EAJA requires that hourly fee rates be based on prevailing market rates, subject to

the limitation that:

attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A).

Cost of living enhancements are routinely applied, as the EAJA rate has not been

updated since 1996. Cost of living enhancements are calculated at the rate for the years during

which the service was rendered. Pettyjohn v. Chater, 888 F. Supp. 1065, 1069 (D. Colo. 1995).

Courts determine adjustments “by using the 1996 annual CPI index as the base factor (or

divisor/denominator) and the annual CPI index for the year in which services were rendered as

the comparison factor (or numerator) and using that quotient as a multiplier of $125 to produce

an adjusted hourly rate.” Hayden v. Astrue, No. 01–cv–01861–WDM–PAC, 2009 WL 4563120,

at *5 (D. Colo. Dec. 3, 2009).

The annual CPI indices are available at Bureau of Labor Statistics–Consumer Price

Index: All Urban Customers 1996-2014, http://www.bls.gov/cpi/cpid1609.pdf (last visited

November 14, 2016). The annual CPI index in 1996 was $156.90. Using the above formula with

yearly CPI indices, hourly rates for this case would be calculated as such:

Annual CPI Index7

Adjusted Hourly Rate

7 Note that these rates represent the national CPI; rates are also available for individual metropolitan areas.

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2010 2011 2012 2013 2014 2015
2016

$ 218.056 $ 224.939 $ 229.594 $ 232.957 $ 236.736 $ 237.017 $ 238.778 (first half)

$173.72 $179.20 $182.91 $185.59 $188.01 $188.83
$190.23

Id.

Section § 2412(d)(2)(A) allows fees to be enhanced when there is “limited availability of

qualified attorneys for the proceedings involved.” A fee enhancement under this exception

requires an attorney to have “some distinctive knowledge or specialized skill needful for the

litigation in question—as opposed to an extraordinary level of the general lawyerly knowledge

and ability useful in all litigation.” Pierce v. Underwood, 487 U.S. 552, 572 (1988).

Enhancements may be appropriate if an attorney has “an identifiable practice specialty such as

patent law, or knowledge of foreign law or language.” Id.

As noted below, it is not necessary to determine whether the law justifies an EAJA

enhancement in order to approve the negotiated fee award. That said, Plaintiffs’ counsel

respectfully submits that given the nature of the class members, the ADX, the Defendant, and

the challenges presented by the governing law, among other factors, there might not be more

than a couple of law firms in the country that both would have considered taking this case on

and have the resources and skill to have litigated it to a successful conclusion. On that basis, an

EAJA enhancement might indeed be warranted here, were one necessary to justify the

negotiated fee award.

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3. The negotiated fee award reflects a reasonable expenditure of time, given the nature of this case.
The forthcoming Appendix will reflect that more than 30,000 hours of attorney time and other professionals’ time hours have been devoted to this case. Multiplying that number by the 2010 EAJA hourly rate of $173.72, without continued CPI adjustments or a “specialized skill” adjustment, yields an appropriate award of no less than $5,211,600, far in excess of the proposed fee award of $2,933,779. The Appendix will also provide ample evidence that each of Plaintiffs’ counsel have customary rates significantly in excess of the EAJA authorized rate as described here. As such, the proposed fee award is a significant downward departure from what counsel would customarily bill for comparable work.
In assessing the nature of the matter to determine reasonableness, the lodestar approach takes into account the twelve factors discussed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974), which have been endorsed by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 430 (1983) and the Tenth Circuit in Gottlieb v. Barry, 43 F.3d 474, 483 (10th Cir. 1994). These factors are:
(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill requisite to perform legal services properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee or rates; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount in controversy and results obtained; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) nature and length of the professional relationship with the client; and (12) awards in similar cases. See Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003, 1008 (D. Colo. 2014) (citation omitted). The Johnson factors support the requested fee award. 1. Time and labor required. For the reasons outlined above, representing a fluid class of hundreds of inmates in a case involving mental health care at the most secure prison in the United States has required thousands of hours of time and labor over the course of more than
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five years. Many class members are mistrustful and/or volatile, requiring the investment of countless hours to build rapport and trust, and overcome setbacks in the relationship between counsel and their clients. The security practices at ADX often result in substantial delays in bringing inmates out to meet with counsel. Defendant has vigorously defended this case with able and committed counsel. And the settlement process has necessarily been long, detailed, and time consuming, involving as it does hundreds of issues and both legal and clinical complexities. These and other factors necessitated the investment of the thousands of hours that counsel has spent on this case.
2. Novelty and difficulty of the issues. As detailed above, this is a legally and factually challenging case, involving complicated people, countless factual details, and careful analysis of many complicated legal issues. It also involves a number of novel issues, including the law applicable to the DLC’s associational standing and the class certification challenges posed by the Shook line of cases.
3. Skill requisite to perform legal services properly. Both class actions and prison and jail conditions litigation are recognized as complex and specialized areas of the law in which counsel must have considerable skill in order to competently represent their clients.
4. Preclusion of employment. Undertaking a massive class action like this case necessarily imposes significant limitations on the other cases an attorney is able to take on. In particular, it has consumed more than half of the working time of Plaintiffs’ lead counsel for more than 5 years, and the travel involved in meeting with the individual plaintiffs and other class members have been intensive and highly disruptive.
5. Customary fee or rates. As discussed above, the EAJA caps hourly rates at a level far below the market rates for plaintiffs’ counsel in this case.
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6. Whether the fee is fixed or contingent. This factor is immaterial here given the reality that most of the fees in question will be donated to charity and Arnold & Porter never intended to retain any portion of the fee award, as a matter of firm practice.
7. Time limitations imposed by the client or circumstances. This factor has little application to this case, except the urgency associated with addressing extreme and deteriorating conditions at ADX at the beginning of this case.
8. Amount in controversy and results obtained. At stake in this case are the health, safety, and human dignity of hundreds of persons who are or were incarcerated at ADX. As discussed in detail supra, counsel have obtained excellent results for the Plaintiff class and subclass.
9. Experience, reputation, and ability of attorneys. As the Court is personally familiar with the lawyers most directly involved in litigating this case, Plaintiffs add only that Arnold & Porter is one of the leading litigation firms in the country, the Washington Lawyers Committee is a pre-eminent prisoners’ rights advocacy organization, and DLC has extensive experience advocating for the constitutional rights of inmates with mental illness, as Colorado’s federally mandated protection and advocacy system.
10. Undesirability of the case. Many lawyers consider representing prisoners to be undesirable because of the unpopularity and impecuniousness of the clients and the many restrictions imposed by the EAJA, among other factors. The people involved in this case present an even greater challenge than the “ordinary” prison case, given the conditions in which they live, the personal characteristics and criminal pasts of many of them, the exposure of counsel to quite real threats of violence and other associated risks, the brutal and often tragic facts to which counsel have been exposed, and the quite real risk that sometime during the case one or more of
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counsels’ clients would give up and commit suicide, precisely because of mental illness and perhaps because of the problems the case was brought to address. Sadly, that risk has been realized repeatedly during the course of this case, including twice in the last year.
11. Nature and length of the professional relationship with the client. Plaintiffs’ counsel have represented the class in this case for more than five years, and in that time have formed strong and necessary professional relationships with many putative class members.
12. Awards in similar cases. In many respects, this case is unparalleled. Nevertheless, the forthcoming Appendix of supporting materials will include a Declaration from the Director of the ACLU’s National Prison Project that will attempt to place this case in a relative context for purpose of evaluating the proposed fee award.
For all of these reasons, and as will be further detailed in the forthcoming Appendix, application of the lodestar here supports an award far in excess of that provided for in the proposed settlement.
4. The negotiated fee award should be made directly to counsel, as outlined in the settlement.
Courts routinely recognize that the attorney-client relationship, the fee/retainer agreement, and the purpose and nature of EAJA can give rise to an express or implied obligation for the client to pay his or her attorney any court ordered EAJA fee award. See Turner v. Comm'r of Soc. Sec., 680 F.3d 721, 725 (6th Cir. 2012) (holding that “litigants ‘incur’ fees under the EAJA when they have an express or implied legal obligation to pay over such an award to their legal representatives, regardless of whether the court subsequently voids the assignment
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provision under the [Anti-Assignment Act]”).8 That reality is rooted in the nature of reform
litigation such as this case:
“[A]llowing fee awards to pro bono counsel under the EAJA ‘serves to insure that legal services groups, and other pro bono counsel, have a strong incentive to represent indigent . . . claimants.’ If attorneys’ fees to pro bono organizations are not allowed in litigation against the federal government, it would more than likely discourage involvement by these organizations in such cases, effectively reducing access to the judiciary for indigent individuals. Such a result surely does not further the goals of the EAJA.” Cornella v. Schweiker, 728 F.2d 978, 986–87 (8th Cir. 1984).9 For these reasons, the Court
should approve the settlement provisions requiring payment of fees directly to counsel. Briggs
v. United States, No. C 07-05760 WHA, 2010 WL 1759457, at *6-8 (N.D. Cal. Apr. 30, 2010)
(awarding $500,000 in EAJA fees to attorneys who settled a class action after determining the
settled award was fair, adequate, and reasonable).
5. The Court should approve the negotiated award of costs.
The Appendix will reflect that counsel have paid, out of pocket, approximately $1
million during the five year course of this case. Most of that sum went to pay for physicians,
psychologists, and other professional consultants who evaluated dozens of inmates, reviewed
8 Accord Ed. A. Wilson, Inc. v. GSA, 126 F.3d 1406, 1409 (11th Cir. 1997) (affirming that an EAJA fee award is appropriate where there is an express or implied agreement that any fee award will be paid to the legal representative); Phillips v. GSA, 924 F.2d 1577, 1583 (Fed. Cir. 1991) (“we hold that to be “incurred” within the meaning of a fee shifting statute, there must also be an express or implied agreement that the fee award will be paid over to the legal representative.”); see also Arredondo v. Holder, No. 08-73835, slip op. at 17 (9th Cir. Nov. 30, 2012) (finding litigant’s and attorneys’ declarations sufficient to establish an implied agreement to pay the fee award directly to counsel). 9 See also Moreno-Gutierrez v. Napolitano, No. 10-CV-00605-WJM-MEH, 2013 WL 3233574, at *6 (D. Colo. June 26, 2013) (“circuits have similarly awarded EAJA fees to attorneys or organizations that have taken on a representation pro bono.”); FDL Techs., Inc. v. United States, 967 F.2d 1578, 1580 n.1 (Fed. Cir. 1992) (“Cases from other courts where attorney fee awards, under various statutes, have been paid directly to counsel. . . . [a]ll involve pro bono counsel where the award was paid directly to counsel in order to avoid giving the prevailing parties, usually prisoners or indigents, a windfall.”)
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tens of thousands of records, and provided critically important professional input into the formulation of the policies negotiated as part of the settlement. The balance was spent on necessary travel, the recovery of medical and other records, duplication costs, and other expenses necessarily incurred in prosecuting this case.
The settlement reimburses Plaintiffs’ counsel for all of those out-of-pocket expenses, which are recoverable under the EAJA. See 28 U.S.C. § 2412(d)(2)(A) (expenses include “the reasonable expenses of expert witnesses” and “the reasonable cost of any study, analysis, engineering report, test, or project.”) The examples set forth in 28 U.S.C. § 2412(d)(2)(A) are not, however, an exclusive listing. See Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987). “Congress enlarged, rather than contracted, the category of expenditures that are reimbursable under the EAJA. . . . The limitation on the amount and nature of such expenses is that they must be necessary to the preparation of the [prevailing] party’s case.” Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988), aff'd sub nom. Comm'r, I.N.S. v. Jean, 496 U.S. 154 (1990) (rejecting the government’s argument that telephone, travel, postage, and research expenses are not compensable under the EAJA) (internal citation omitted).10
IV. THE COURT SHOULD PROVIDE THE CLASS WITH NOTICE Fed. R. Civ. P. 23(e)(1) provides that “[t]he court must direct notice in a reasonable manner to all class members who would be bound by the proposal.” Versions of the proposed notice to class members, in English and Spanish, are attached as Exhibits 10 and 11. The notice explains the basic nature of the proposed settlement, including the attorneys’ fees, how to obtain a copy of the agreement, how to contact Plaintiffs’ counsel, and how to comment in support of,
10 See also Int’l Woodworkers of Am. v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985) (expenses routinely billed to a client—telephone, air courier, attorney travel—are recoverable under the EAJA); Aston v. Secretary of Health and Human Servs., 808 F.2d 9, 12 (2d Cir. 1986) (affirming award of telephone, postage, travel and photocopying expenses under EAJA).
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or in opposition to, approval of the settlement. Plaintiffs propose that this notice be as specified in Section 14 of the Addendum, Exhibit 1 hereto.
Plaintiffs’ proposed method for providing notice is consistent with the letter and spirit of Rule 23:
[T]here is no single way in which the notice must be transmitted. Of course, notice by mail to all of the identified class members informing them of the proposed action and indicating that they have a right to participate and voice their objections will suffice. But other approaches including the use of television, radio, the internet, and various print publications also may be utilized. In some cases, such as in prisoner litigation, when the class members are all in one location, posting or other publication may be deemed sufficient. 7B Charles Alan Wright, et al., Federal Practice and Procedure, § 1797.6 (2005). The proposed notice is also reasonable in light of the circumstances, and consistent with what has been approved in other cases. See, e.g. Cody v. Hillard, 88 F. Supp. 2d 1049, 1051-52 (D.S.D. 2000) (involving a settlement at the South Dakota State Penitentiary); Ruiz v. McKaskle, 724 F.2d 1149, 1152-53 (5th Cir. 1984) (publishing notice and summary of settlement in prison newspaper and posting notices in prison housing units of the availability of the settlement was sufficient to give notice in 23(b)(2) case); Ahrens v. Thomas, 570 F.2d 286, 288 (8th Cir. 1978) (posted notice in jail sufficient in 23(b)(2) case); Gaddis v. Campbell, 301 F. Supp. 2d 1310, 1312 (M.D. Ala. 2004) (approving notice to prison class placed on community bulletin boards and other places to which prisoners had access, with individual notice to prisoners in segregation).
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CONCLUSION For the above reasons, Plaintiffs request that the Court grant preliminary approval to the Settlement Documents, including the parties’ agreement as to fees and costs, and order notice to the class in the form and manner requested herein. Dated: November 16, 2016.
Respectfully submitted, ARNOLD & PORTER LLP By /s/ Edwin P. Aro
Edwin P. Aro Robert Reeves Anderson 370 Seventeenth Street Suite 4400 Denver, CO 80202 Telephone: +1 303.863.1000 ed.aro@aporter.com reeves.anderson@aporter.com
Kelly A. Welchans Jerome B. Falk, Jr. Three Embarcadero Center 10th Floor San Francisco, CA 94111 Telephone: +1 415.471.3000 kelly.welchans@aporter.com Jerome.falk@aporter.com
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Wilson D. Mudge Danielle M. Garten James Alexander Kaiser 601 Massachusetts Avenue, N.W. Washington, DC 20001-3743 Telephone: +1 202.942.5000 wilson.mudge@aporter.com danielle.garten@aporter.com james.kaiser@aporter.com Attorneys for all Plaintiffs other than Herbert Perkins WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS Deborah Golden 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036 Telephone: +1 202.319.1000 deborah_golden@washlaw.org Attorneys for all Plaintiffs
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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 16th day of November, 2016, the foregoing PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT TERMS AND PROPOSED NOTICE TO THE CLASS was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all counsel of record as follows:
Amy L. Padden U.S. Attorney’s Office - Denver 1225 Seventeenth Street, Suite 700 Denver, CO 80202 amy.padden@usdoj.gov
/s/ Portia Pullen
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EXHIBIT 1

Case 1:12-cv-01570-RPM-MEH Document 382-1 Filed 11/16/16 USDC Colorado Page 2 of 43

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01570-RPM
HAROLD CUNNINGHAM, PERCY BARRON, ALPHONSO BLAKE, JABBAR CURRENCE, CARLTON DUNBAR, SCOTT FOUNTAIN, SEAN GILLESPIE, CHARLES HIPPS, JOHN LAMB, HERBERT PERKINS, JOHN J. POWERS, ARNELL SHELTON, and MARCELLUS WASHINGTON,
Each individually and on behalf of all others similarly situated,
and
DISABILITY LAW COLORADO, COLORADO’S PROTECTION AND ADVOCACY SYSTEM,
Plaintiffs,
vs.
FEDERAL BUREAU OF PRISONS,
Defendant.

ADDENDUM TO JOINT MOTION TO APPROVE SETTLEMENT

I.

INTRODUCTION

1. On June 15, 2015, Plaintiffs Harold Cunningham, Percy Barron, Alphonso Blake,

Jabbar Currence, Carlton Dunbar, Scott Fountain, Sean Gillespie, Charles Hipps, Ronnie

Houston, John Lamb, Herbert Perkins John J. Powers, Arnell Shelton and Marcellus

Case 1:12-cv-01570-RPM-MEH Document 382-1 Filed 11/16/16 USDC Colorado Page 3 of 43
Washington, each individually and on behalf of others similarly situated, and Disability Law Colorado (collectively “Plaintiffs”) filed a Second Amended Complaint (“Complaint”) alleging that the treatment of inmates with mental illness by the Federal Bureau of Prisons (hereafter “Defendant” or “Bureau”) at the United States Penitentiary, Administrative Maximum, located in Florence, Colorado (“ADX”), has failed to meet the minimum level of care necessary to satisfy the Eighth Amendment to the U.S. Constitution. Since June 2012, Plaintiffs and Defendant (collectively “the Parties”), through their respective counsel identified on the signature page below, have exchanged information and conducted discovery, both under the Freedom of Information Act (“FOIA”) and by way of voluntary and informal disclosures of information.
2. Plaintiffs define in their Complaint two different classes of inmates for whom this lawsuit was brought. Plaintiffs first define a class regarding screening as “[a]ll persons who are now, or will be in the future, confined to the custody of the Federal Bureau of Prisons at [ADX].” Plaintiffs next define a subclass regarding treatment as “[a]ll persons who are now, or will be in the future, confined to the custody of the Bureau [at the ADX] and have been diagnosed by the [Bureau] or its representative personnel [or contractors] with [a mental illness].”
3. Defendant denies the allegations in the Second Amended Complaint. The issue of liability has not been litigated. Defendant, prior to and since the initiation of this litigation, commenced significant initiatives to enhance the delivery of mental health services to inmates housed in the ADX and that process has been ongoing throughout this litigation. Defendant represented the interests of the Bureau of Prisons, which include decisions regarding its constitutional duty to provide care for mentally ill inmates and to protect their safety, along with
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the safety of its staff and the public. Defendant does not concede that the policies and initiatives

contained within this Addendum are required by the Constitution.

4. This Addendum is also the result of nearly four years of collaborative, arm’s

length settlement negotiations by energetic and experienced counsel for the Parties and their

respective consultants and experts, aided by an experienced United States Magistrate Judge, to

resolve the claims raised by this action. The Parties, without conceding any infirmity in their

claims or defenses, engaged in extensive arm’s length settlement negotiations to implement

changes related to the constitutional violations alleged in the Second Amended Complaint.

Plaintiffs’ counsel received sufficient formal and informal discovery prior to and during

settlement negotiations to enable them to make informed decisions. The Parties also benefited

from the informed advice of two psychiatrists, Jeffrey Metzner, M.D., and Sally Johnson, M.D.,

with correctional experience, who have significant experience as expert witnesses and monitors

in corrections mental health litigation, as well as other outside and Bureau experts. This

collaborative attitude allowed Defendant to address the issues raised in association with the

alleged constitutional violations with practical creativity.

5. Defendant’s voluntary, significant initiatives, and the Parties’ collaborative work

resulted in the following:

a. The creation, revision, and implementation of the following Program

Statements and Institutional Supplements (the “Policies”), which contain negotiated

substantive provisions regarding, among other matters, screening and diagnosis of mental

illness, provision of mental health care, suicide prevention, and conditions of

confinement to reduce the risk of development or exacerbation of mental illness:

i.

Program Statement 5310.16, Treatment and Care of Inmates with

Mental Illness.

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ii.

Institutional Supplement FLM 5310.16, Treatment and Care of

Inmates with Mental Illness.

iii.

Institutional Supplement FLM 5324.08, Suicide Prevention

Program.

iv.

Institutional Supplement FLP 53310.11A, Secure Steps Toward

Awareness Growth and Emotional Strength (STAGES) Program.

v.

Institutional Supplement FLM 5212.07J, Control Unit Programs.

vi.

Institutional Supplement FLM 5321.07(1)B, General Population

and Step-Down Unit Operations.

vii.

Institutional Supplement FLM 5321.07(4)A, High Security Adult

Alternative Housing Program.

b. The development and activation of the following units for mental health treatment:

i.

A secure mental health unit at the United States Penitentiary in

Atlanta, Georgia.

ii.

A second secure mental health unit at the United States

Penitentiary in Allenwood, Pennsylvania.

iii.

A Secure Steps Toward Awareness Growth and Emotional

Strength (STAGES) Program at the United States Penitentiary,

High Security, in Florence, Colorado.

c. The undertaking of the following significant initiatives:

i.

The development and implementation of privilege incentive

programs for inmates housed at ADX.

ii.

The continued use and enhancement of an at-risk recreation

program to identify inmates who are not participating in any

recreation programs, attempting to educate them on wellness, and

encouraging their participation in a structured recreation program.

iii.

Constructing, maintaining, and employing facilities for group

therapy at ADX.

iv.

Constructing, maintaining, and employing areas for private

psychological and psychiatric counselling sessions in all housing

units at ADX.

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v.

Changes to the manner in which telepsychiatry is conducted at

ADX to allow those sessions to take place in private without the

presence of correctional officers.

vi.

The screening of all inmates housed at ADX as of August 2014, to

determine, among other things, whether the inmates have a mental

illness. This included a screening record review of all inmates and

in-depth clinical interviews of approximately 130 inmates by

outside psychiatrists and non-ADX Bureau psychologists.

vii.

Clarifying that psychotropic medications will be available to any

inmate for whom such medication is prescribed, regardless of the

inmate’s housing assignment (i.e., Control Unit)

viii.

Taking steps to ensure that inmates receiving psychiatric

medications at the ADX are seen by a psychiatrist, physician, or

psychiatric nurse every ninety (90) days, or more often as

clinically indicated for, at a minimum, the first year.

ix.

Taking steps to ensure that the screening and classification of

inmates prior to, and when, they arrive at ADX, to ensure those

inmates with mental illness are identified, provided accurate

diagnosis, and assessed to determine the severity of any mental

illness and any suicide risk.

x.

The development and implementation of procedures to ensure that

Health Services notifies the psychiatrist, psychiatric mid-level

provider, psychiatric nurse, or physician and Psychology Services

of inmates who refuse or consistently miss doses of their

prescribed psychotropic medications.

xi.

Health Services staff taking steps to ensure that psychotropic

medications are prescribed so that they are distributed on pill line.

xii.

The periodic assessment of all inmates at ADX to determine

whether mental illness has developed since the last screening.

xiii.

The use of mental health care levels as defined in Program

Statement 5310.16, Treatment and Care of Inmates with Mental

Illness, dated May 1, 2014, for classification of inmates housed at

ADX.

xiv.

The exclusion of certain inmates with a Serious Mental Illness, as

defined in the Bureau’s Program Statement 5310.16, Treatment

and Care of Inmates with Mental Illness, from ADX, except when

extraordinary security needs exist; when extraordinary security

needs exist, ensuring those inmates are provided treatment and care

commensurate with their mental health needs, which includes the

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xv. xvi. xvii.
xviii. xix.
xx. xxi. xxii.

development of an individualized treatment plan in accordance with the Policies.
Taking steps to ensure the prompt identification of inmates who develop signs or symptoms of possible mental illness while incarcerated at ADX, to permit timely and proper diagnosis, care, and treatment.
Taking steps to ensure the reasonable access to clinically appropriate mental health treatment for all inmates with mental illness at ADX.
Considering a commitment order under 18 U.S.C. § 4245, or other applicable statute or regulation, for inmates who have a need for, but who do not agree to participate in, a Secure Mental Health Unit or for a treatment program at a Medical Referral Center. An inmate’s refusal to be designated to a Secure Residential Mental Health Unit or Medical Referral Center, or a court’s denial of a commitment order, is not grounds or justification to house an inmate with a Serious Mental Illness at ADX. However, if a court denies commitment or determines that an inmate does not have a Serious Mental Illness, permitting that inmate to be placed at ADX if needed for security and safety reasons and providing treatment commensurate with his mental health care level.
Housing certain inmates in need of inpatient psychiatric care (CARE4-MH) at a Medical Referral Center.
If an inmate with Serious Mental Illness who continues to be housed at ADX due to extraordinary security needs declines treatment consistent with his mental health care level, taking steps to develop and implement a treatment plan that includes regular assessment of the inmate’s mental status, rapport-building activities, and other efforts to encourage engagement in a treatment process, and, at a minimum, a weekly attempt to engage the inmate.
Offering inmates with Serious Mental Illness who continue to be housed at ADX due to extraordinary security needs between 10 and 20 hours of out-of-cell therapeutic and recreational time per week consistent with their individualized treatment plan.
Taking steps to support inmates with mental illness through creation of wellness programs and recreational activities, specialized training of staff, and care coordination teams.
The development of procedures for heightened review of requests and referrals for mental health services.
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xxiii. xxiv. xxv. xxvi. xxvii. xxviii. xxix.
xxx.
xxxi.

Ensuring that any calculated use of force or use of restraints involving an inmate at ADX with a mental illness is applied appropriately to an inmate with such conditions, as set forth in the Policies.
The exclusion of mental health clinicians from participation as a use of force team member in a calculated use of force situation, other than for confrontation avoidance.
The merging of the Bureau’s Electronic Medical Record (BEMR) and Psychology Data System (PDS).
The staffing and hiring of 3 additional full-time psychologists, one psychiatric nurse, and one psychology technician. One of the 3 additional full-time psychologist positions is to facilitate traumainformed psychological programming (Resolve Treatment (Trauma) Coordinator).
The ADX Care Coordination and Reentry (CCARE) Team meeting monthly, pursuant to the applicable section ADX Institutional Supplement regarding Treatment and Care of Inmates with Mental Illness.
Taking steps to ensure the completion of a Mental Health Transfer Summary in BEMR/PDS every time an inmate with mental illness (CARE2-MH, CARE3-MH, and CARE4-MH) transfers out of ADX, pursuant to the ADX Institutional Supplement regarding Treatment and Care of Inmates with Mental Illness.
Taking steps to ensure the collaboration of Psychology and Health Services staff, beginning no later than 12 months before an inmate’s anticipated release with Community Treatment Specialist (CTS) regarding ADX inmates CARE2-MH or higher releasing to an residential re-entry center or home detention, pursuant to the applicable section of the ADX Institutional Supplement regarding Treatment and Care of Inmates with Mental Illness.
Hiring a full-time Social Worker for FCC Florence, whose priority is those inmates housed at ADX and who provides Reentry Planning Services within 1 year of an inmate’s projected release date, as appropriate, and pursuant to the applicable section of the ADX Institutional Supplement regarding Treatment and Care of Inmates with Mental Illness.
Taking steps to ensure that discipline is applied appropriately to inmates with Serious Mental Illnesses or Mental Illness, as set forth in the Policies.
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xxxii.

Enhancing mental health training provided to Bureau staff.

6. The Parties believe the Addendum is fair, reasonable, and adequate to protect the

interests of all parties.

7. Nothing in this Addendum requires Defendant to compel an inmate to accept

treatment (including medication) for a mental illness over the inmate’s objections; provided that

this paragraph shall not limit or otherwise affect the rights or obligations of Defendant or any

inmate under 18 U.S.C. § 4245.

8. Nothing in this Addendum prevents the Defendant from modifying the above

referenced Policies. Defendant maintains its right to amend the Policies without approval of

Plaintiffs. However, during the Compliance Period (as defined in paragraph 36, below), the

Defendant agrees that any modifications to these Policies will not diminish the standards for

screening or standards for services and treatment specified in the Policies. Defendant further

agrees to inform Plaintiffs’ counsel and the Monitor in writing in advance of any changes to the

Policies during the Compliance Period. Compliance with any revised policy or procedure that is

consistent with the preceding sentences in this paragraph shall not be deemed a breach of this

Addendum. Any dispute concerning whether services, standards, or treatment provided to

inmates have been diminished shall be resolved pursuant to the paragraphs set forth in sections

IX (DISPUTE RESOLUTION) and X (ENFORCEMENT) of this Addendum.

9. The Parties acknowledge that certain documents in this case were produced

subject to the Protective Orders entered by the Court, Docket Nos. 73, 85, 167, 213 (collectively,

“the Protective Orders”). The Parties agree that the Protective Orders will remain in effect

throughout the term of this Addendum. The Parties further agree that any inmate-specific

medical or psychology records previously produced or that are produced in connection with the

implementation of this Addendum will be considered “Confidential”—whether or not they are so 8

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marked—and subject to the Protective Orders. At the conclusion of the Compliance Period, the procedures in Paragraph 18 of Docket No. 85 will apply to all documents covered by the protective order.
II. PRISON LITIGATION REFORM ACT (PLRA), 18 U.S.C. § 3626 10. The Parties agree that this Addendum will be submitted to the Court for approval as provided below, and that it will not be effective until approved by the Court, following a hearing and a finding that it is fair, reasonable, and adequate pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. 11. The Parties agree that a finding by the Court that the Addendum is fair, reasonable, and adequate does not mean this Addendum is a “consent decree” under 18 U.S.C. § 3626(c)(1).
III. CLASS CERTIFICATION 12. Class Certification. For the purposes of this Addendum only, the Parties agree to the certification by the Court of a Plaintiff class regarding screening and a Plaintiff subclass regarding treatment of inmates with a Covered Mental Illness (as defined below), pursuant to Federal Rule of Civil Procedure 23(b)(2). 13. Preliminary approval. Following the execution of this Addendum, Plaintiffs will file an unopposed motion with this Addendum, requesting that the Court preliminarily approve this Addendum, and further requesting that upon such preliminary approval the Court will schedule a hearing pursuant to Rule 23(e) of the Federal Rules of Civil Procedure (hereinafter referred to as the “Fairness Hearing”), after which the Court will determine whether to grant its final approval of the Addendum. That motion will include an unopposed request that the Court modify the order of reference in this case pursuant to 28 U.S.C. § 636 to permit Magistrate Judge
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Hegarty (or his successor) to perform the duties set forth in paragraphs 50-51 and 85-86 of this Addendum. At the same time, Plaintiffs will move for certification of the Class and Subclass defined above, with such Certification being for the purposes of this Addendum only and being conditional upon final approval of this Addendum.
14. Notice of Proposed Class Action Settlement and Fairness Hearing. Within thirty (30) days after the date on which the Court preliminarily approves this Addendum, the Bureau will hand-deliver a Notice of Proposed Class Action Settlement and Fairness Hearing (a copy of which is attached as Ex. A) to each inmate then-housed at ADX and to named Plaintiffs not at that time housed at the ADX, and will also provide a copy of the Notice to any inmate who arrives at ADX after the Notice is initially provided but prior to the time the Addendum is approved by the Court. The language of the Notice has been agreed to by the Parties. The Notice contains a brief description of the claims advanced by Plaintiffs and the Bureau’s denial of liability for such claims, a summary of the terms of this Addendum, and information regarding the upcoming Fairness Hearing. The Bureau shall bear the cost of distributing the Notice as required by this section.
15. Class and Subclass. The Screening Class and the Treatment Subclass are each defined in section V, DEFINITIONS.
16. Upon certification of the Screening Class and Treatment Subclass, all the Screening Class and Treatment Subclass members will be bound by the terms of this Addendum subject to the limitations on the preclusive effect of this Addendum specified in paragraphs 73, below.
17. The relief provided in this Addendum is for the benefit of all Screening Class and Treatment Subclass members.
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IV. CLA – ACKNOWLEDGEMENT & ROLE 18. The District Court in this case has held that the CLA has standing to pursue claims for declaratory and injunctive relief for inmates with mental illness housed at ADX. (Doc. 324.) For the purposes of this Addendum only, Defendant does not object to the CLA’s standing to pursue claims for declaratory and injunctive relief for inmates with mental illness housed at ADX 19. Defendant shall distribute to all inmates at ADX, within thirty days from the Effective Date, a letter drafted by CLA, and approved by the Parties. Generally, the letter will advise inmates that CLA is available, at the inmate’s request, to represent inmates in connection with complaints concerning the implementation of this Addendum, and will provide CLA’s contact information. Defendant will provide CLA with the names and registration numbers of all inmates who arrive at ADX after the Effective Date and during the Compliance Period, to permit CLA to contact them and advise them of CLA’s availability. Such information shall be provided at the earliest practicable date, but in all events no more than 30 days after each such inmate arrives at ADX. 20. CLA shall take reasonable steps to resolve any complaints it receives from inmates concerning the implementation of this Addendum in accordance with the provisions of the Protection and Advocacy for Individuals With Mental Illness Act, 42 U.S.C. §§ 10801, et seq., and the paragraphs set forth in section IX, DISPUTE RESOLUTION, and section X, ENFORCEMENT. 21. Except as specifically set forth in paragraph 73, below, this Addendum does not restrict the CLA’s ability to seek remedies outside of this litigation on behalf of inmates with
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mental illness or compromise the authority of CLA to pursue such remedies through other litigation, legal action, or other forms of advocacy.
V. DEFINITIONS 22. The term “ADX” means the United States Penitentiary, Administrative Maximum, Florence, Colorado. 23. The term “USP Florence” means the United States Penitentiary, High Security, Florence, Colorado. 24. The term “FCC Florence” means the Federal Correctional Complex, Florence, Colorado. 25. The term “Covered Mental Illness” means a mental disorder as defined in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders that results in classification of the inmate as a CARE2-MH or higher. 26. The term “Serious Mental Illness” is defined as in the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness. 27. The Mental Health Care Levels are defined in the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness. 28. The term “Serious Suicide Attempt” means an incident of serious self-harm coupled with suicidal intent that requires medical treatment. 29. The term “Screening Class” means all persons who are confined at ADX at any time between the Effective Date and the last day of the Compliance Period. 30. The term “Treatment Subclass” means all persons who are confined at ADX at any time between the Effective Date and the last day of the Compliance Period and have been
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diagnosed by the Bureau or its representative personnel or contractors with a Covered Mental Illness, as defined in paragraph 25 above.
31. “Secure Mental Health Unit,” or “Secure Mental Health Program” means a residential psychology treatment program that provides mental health treatment for male inmates who (1) have a Serious Mental Illness, diagnosed by the Bureau; (2) do not require inpatient treatment, but have been classified as a CARE3-MH or as a CARE2-MH with SMI and in need of enhanced mental health treatment, and require intensive, specialized psychiatric services or psychological interventions in a residential setting; and (3) have a history of violent behavior resulting in a referral, or consideration for referral, to ADX Florence or a Special Management Unit (SMU).
32. The term “Secure STAGES” means a residential, unit-based Psychology Treatment Program for inmates with Borderline Personality Disorder or Other Specified Personality Disorders, as diagnosed by the Bureau, who have a chronic history of self-injurious behavior or do not function effectively in a prison setting.
33. The term “Legally Privileged Information” means information that is classified or implicates national security concerns or that is protected by one or more of the following privileges or doctrines: the attorney-client privilege, the attorney work product doctrine, the law enforcement privilege, or the deliberative process privilege.
34. The term “Effective Date” shall mean the date that the United States District Court for the District of Colorado (herein, the “Court”) enters an Order pursuant to Federal Rules of Civil Procedure 23(e), finding the Addendum is fair, reasonable, and adequate, and thereby approves this Addendum.
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35. The term “Expiration Date” means the date upon which the parties’ obligations and the Court’s jurisdiction under this Addendum terminates as set forth in section VIII below.
36. The term “Compliance Period” means the period of time starting on the Effective Date and ending on the Expiration Date.
37. The term “Site Visit” shall mean a visit by the Monitor(s) to FCC Florence to visit either the ADX, the Secure STAGES Program at USP Florence, or both.
38. The term “Monitored Initiatives” means all provisions of the policies and procedures, which are applicable to ADX and the Secure STAGES Program at USP Florence only, with respect to which the Monitor(s) will assess compliance pursuant to sections 43, 44 and 45, below.
VI. MONITORING & REPORTING 39. The parties agree that Sally Johnson, M.D., and Jeffrey Metzner, M.D. will serve as co-Monitors in this action, to assess Defendant’s compliance with the Monitored Initiatives. If Dr. Johnson or Dr. Metzner becomes unavailable to monitor Defendant’s obligations under the Monitored Initiatives, the Parties shall, within 30 days, jointly decide whether to proceed with one monitor, or if both Dr. Johnson and Dr. Metzner become unavailable, the parties will jointly select one or two other Monitors. If the Parties are unable to agree upon a replacement Monitor, the Court will appoint one after receiving one suggestion from each of the Parties and remaining Monitor, if any. 40. The Monitor(s) shall not be liable for any claim, lawsuit or demand arising out of a Monitor’s performance pursuant to this Addendum. 41. Defendant agrees to pay all reasonable fees and costs incurred by the Monitors, subject to the Monitors complying with the appropriate payment procedures, up to a maximum
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of 330 hours of work a year for Dr. Johnson (or any replacement expert who resides outside of

the state of Colorado), and 290 hours of work a year for Dr. Metzner (or any replacement expert

who resides within the state of Colorado). The Monitor(s) will be paid an hourly rate of no more

than $450. In the event that the Monitor(s) reasonably believe that time in excess of the

foregoing limitations will be necessary to complete the work contemplated by this Addendum,

they shall notify the Parties, who will confer concerning the matter. If the Parties are unable to

agree on a modification of the foregoing limitations, Plaintiffs may file an appropriate motion

with the Court, which may be granted for good cause shown.

42. Except as may be provided in a separate Agreement signed by the Parties, the

Monitor(s) shall only have access to, and shall only monitor Defendant’s policy compliance with

respect to, the ADX and the Secure STAGES Program at USP Florence. Defendant intends to

continue to house the Secure STAGES Program at USP Florence during the Compliance Period.

Defendant will provide Plaintiffs’ counsel with advance notice if Defendant decides that it needs

to move the program to a different institution.

43. Monitoring:

a. Monitoring at ADX: The Monitor(s) will assess and report on Defendant’s compliance with all of the following Monitored Initiatives at the ADX during the first two Site Visits and will assess and report on Defendant’s compliance with any or all (as they deem appropriate) of the following Monitored Initiatives at the ADX during subsequent Site Visits:

i.

Application of the definition of Serious Mental Illness to mental

disorders diagnosed by Defendant. Pursuant to paragraph 26,

above, Serious Mental Illness is defined as in the Bureau’s current

Program Statement regarding the Treatment and Care of Inmates

with Mental Illness, which at the Effective Date of this Addendum

is located in section 1 of the Program Statement and section IV(F)

of the ADX Institutional Supplement regarding the Treatment and

Care of Inmates with Mental Illness.

ii.

Screening

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1. The screening of inmates pursuant to Mental Health Care Levels, Psychology Intake Screening, Assignment and Change of Mental Health Care Level Assignment, ADX Referral Review Procedures, and Extended Restrictive Housing Reviews sections of the Bureau’s Program Statement regarding the Treatment and Care of Inmates with Mental Illness, which at the Effective Date of this Addendum are sections 5, 6(c)-(e), 8(b)(2), 8(d), respectively.

2. The requirements concerning the screening of inmates pursuant to Procedures for Assessment, Identification, and Referral section of the ADX Institutional Supplement regarding the Treatment and Care of Inmates with Mental Illness, which at the Effective Date of this Addendum is section IX.

iii.

Exclusion

1. The requirement that inmates diagnosed with Serious Mental Illness, as determined by Defendant, are only designated to the ADX if the inmates have extraordinary security needs, as determined by Defendant, pursuant to the SMU/ADX Exclusionary Criteria of the Bureau’s Program Statement regarding Treatment and Care of Inmates with Mental Illness, which at the time of this Addendum is section 8(c).

2. The requirement that inmates diagnosed with a Serious Mental Illness while housed at the ADX, as determined by Defendant, only remain at the ADX if the inmates have extraordinary security needs, as determined by Defendant, pursuant to the ADX exclusion criteria and ADX removal process sections of the Bureau Program Statement and ADX Institutional Supplement regarding Treatment and Care of Inmates with Mental Illness, which at the effective date of this Addendum are sections 8(e), and VII and X, respectively.

3. The requirement that inmates classified as CARE4-MH are not placed at, or are removed from, the ADX as provided in section X of the ADX Institutional Supplement regarding Treatment and Care of Inmates with Mental Illness.

4. The requirement that ADX inmates who, while housed at ADX, are diagnosed by Defendant as suffering from a Serious Mental Illness, and who do not have extraordinary

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security issues as determined by Defendant, are referred to an alternative, appropriate placement outside ADX, pursuant to section X(E) of the ADX Institutional Supplement regarding the Treatment and Care of Inmates with Mental Illness.

iv.

Treatment

1. The requirement that inmates diagnosed with a Serious Mental Illness by Defendant and who must remain at the ADX due to extraordinary security needs are housed and treated in accordance with the Treatment and Care for Inmates with Serious Mental Illnesses Remaining at ADX Due to Extraordinary Security Concerns section of the ADX Institutional Supplement regarding Treatment and Care of Inmates with Mental Illness, which at the Effective Date of this Addendum is section XI(F).

2. The following sections of ADX Institutional Supplement regarding the Treatment and Care of Inmates with Mental Illness: Responsibilities; Mental Health Staffing; Team Approach to Care; Individual Counseling/Therapy; Group Treatment; Psychiatric Services; Turning Point Protocol; Adjunctive In-Cell Therapeutic Activities; and Achievement Awards & Incentives, which at the effective date of this Addendum are sections V-VI, VIII, XI(A)-(E), and XV.

3. The following sections of Bureau Program Statement regarding the Treatment and Care of Inmates with Mental Illness as they are implemented at the ADX: RecoveryOriented Program Model; Evidence-Based Practices; Team Approach to Care; Services for Inmates in Restrictive Housing; Mental Health Treatment Achievement Awards; and Continuity of Care Between Institutions, which at the Effective Date of this Addendum are sections 3, 4, 7, 8(a), 12, and 13(b).

4. Defendant’s maintenance and use of suitable facilities for group therapy at ADX.

5. Defendant’s maintenance and use of suitable private areas for psychiatric and psychological consultation sessions in all units at ADX.

6. The Between Bureau Institutions section of ADX Institutional Supplement regarding the Treatment and Care

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of Inmates with Mental Illness, which at the effective date of this Addendum is section XVI(C).

7. The Behavioral Health Committee Meeting (BHCM) section of ADX Institutional Supplement regarding the Treatment and Care of Inmates with Mental Illness, which at the effective date of this Addendum is section XVI(B).

8. The Calculated Use of Force section of ADX Institutional Supplement regarding the Treatment and Care of Inmates with Mental Illness, which at the effective date of this Addendum is section XIV.

v.

Reentry Planning Services

1. The following applicable sections of the Bureau Program Statement regarding Treatment and Care of Inmates with Mental Illness that pertain to Reentry, which at the effective date of this Addendum are sections 14(a)-(e).

2. The following sections of the ADX Institutional Supplement regarding Treatment and Care of Inmates with Mental Illness: Community Treatment Services; and Reentry Planning Services, which at the effective date of this Addendum are sections XVI(D)-(E).

vi.

Discipline: The inmate discipline section of the ADX Institutional

Supplement regarding the Treatment and Care of Inmates with

Mental Illness, which at the effective date of this Addendum is

section XIII, Inmate Discipline.

vii.

Suicide Prevention

1. The following sections of the Bureau’s Program Statement regarding the Suicide Prevention Program: 7, 8(a), 14(a), 14(d), and 15.

2. The ADX Institutional Supplement regarding Suicide Prevention Program.

3. The following sections of ADX Institutional Supplement regarding the Treatment and Care of Inmates with Mental Illness: Inmates Who Are Known to Require Special Precautions and Suicide Prevention, which at the effective date of this Addendum are sections XVI(A), and (F).

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viii.

Training: The Mental Health Training section of ADX

Institutional Supplement regarding the Treatment and Care of

Inmates with Mental Illness, which at the effective date of this

Addendum is section XII.

ix.

Quality Improvement: The Quality Improvement section of

ADX Institutional Supplement regarding the Treatment and Care

of Inmates with Mental Illness, which at the effective date of this

Addendum is section XVI(G).

b. Monitoring at Secure STAGES: The Monitor(s) will assess and report on Defendant’s compliance with all of the following Monitored Initiatives at the Secure STAGES program during the first two Site Visits and will assess and report on Defendant’s compliance with any or all (as they deem appropriate) of the following Monitored Initiatives at the Secure STAGES program during subsequent Site Visits:

i.

The following sections of USP Florence’s Institutional Supplement

regarding the Secure Steps Toward Awareness Growth and

Emotional Strength (STAGES) Program: Program Overview and

Program Responsibilities, which at the effective date of this

Addendum are sections IV and V.

ii.

The requirement of USP Florence’s Institutional Supplement

regarding the Secure Steps Toward Awareness Growth and

Emotional Strength (STAGES) Program that only inmates

affiliated with Secure STAGES program are allowed to live in the

Program Unit, which at the effective date of this Addendum is the

first sentence of subsection B(1) of section VI.

iii.

The requirement of USP Florence’s Institutional Supplement

regarding the Secure Steps Toward Awareness Growth and

Emotional Strength (STAGES) Program concerning community

meetings, which at the effective date of this Addendum is

subsection B(2) of section VI.

iv.

The provisions of USP Florence’s Institutional Supplement

regarding the Secure Steps Toward Awareness Growth and

Emotional Strength (STAGES) Program concerning Admission

and Orientation, which at the effective date of this Addendum is

subsection C of section VI.

v.

The following subsections of the Conditions of Confinement

section of USP Florence’s Institutional Supplement regarding the

Secure Steps Toward Awareness Growth and Emotional Strength

(STAGES) Program: Residential Program Unit, Recreation, and

Mental Health Care, which at the effective date of this

Addendum are subsections A, K, and T of section VI.

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vi.

The Treatment Assessment Procedures section of USP

Florence’s Institutional Supplement regarding the Secure Steps

Toward Awareness Growth and Emotional Strength (STAGES)

Program, which at the effective date of this Addendum is section

VIII.

vii.

The Treatment Phases, Program Completion, Program

Withdrawals, Program Incompletes, and Program Expulsions

sections of USP Florence’s Institutional Supplement regarding the

Secure Steps Toward Awareness Growth and Emotional Strength

(STAGES) Program, which at the effective date of this Addendum

are sections IX, XII-XV.

viii.

The Security Levels section of USP Florence’s Institutional

Supplement regarding the Secure Steps Toward Awareness Growth

and Emotional Strength (STAGES) Program, which at the effective

date of this Addendum is section X.

ix.

The Psychology Treatment Program Achievement Awards

section of USP Florence’s Institutional Supplement regarding the

Secure Steps Toward Awareness Growth and Emotional Strength

(STAGES) Program, which at the effective date of this agreement

is section XI.

x.

Subsections C, E, and F of the Secure STAGES Companions

section of USP Florence’s Institutional Supplement regarding the

Secure Steps Toward Awareness Growth and Emotional Strength

(STAGES) Program, which at the effective date of this Addendum

is section XVI.

xi.

The Discipline Procedures section of USP Florence’s Institutional

Supplement regarding the Secure Steps Toward Awareness Growth

and Emotional Strength (STAGES) Program, which at the effective

date of this Addendum is section XVIII.

xii.

The Bureau’s Program Statement regarding the Suicide Prevention

Program, except that because sections 7(a), 7(b), 7(c) and 14(b) of

that Program Statement do not apply to the Secure STAGES

Program, they will not be monitored.

xiii.

The Program Participant Appeal Rights section of USP

Florence’s Institutional Supplement regarding the Secure Steps

Toward Awareness Growth and Emotional Strength (STAGES)

Program, which at the effective date of this Addendum is section

XIX.

xiv.

The Staff Training section of USP Florence’s Institutional

Supplement regarding the Secure Steps Toward Awareness Growth

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and Emotional Strength (STAGES) Program, which at the effective date of this Addendum is section XX.

xv.

The Inmate Monitoring Form section of USP Florence’s

Institutional Supplement regarding the Secure Steps Toward

Awareness Growth and Emotional Strength (STAGES) Program,

which at the effective date of this Addendum is section XXI.

xvi.

The Reentry section of the Bureau’s Program Statement regarding

the Treatment and Care of Inmates with Mental Illness, which at

the effective date is section 14.

44. With respect to both the ADX and the Secure STAGES Program, the Monitor(s)

may access, review, and utilize other sections within the following Bureau Program Statements

and Institutional Supplements to inform their assessment of the Defendant’s compliance, where,

when, and if applicable, with the initiatives identified in paragraph 43, above:

a. Bureau Program Statement regarding Psychiatric Services.

b. Bureau Program Statement regarding Psychiatric Evaluation and Treatment.

c. USP Florence Institutional Supplement regarding Secure Steps Toward

Awareness Growth and Emotional Strength (STAGES) Program.

45. In monitoring the Secure STAGES Program, the Monitor(s) shall not monitor and

report on compliance with the conditions of confinement provisions in section VI(D), (F)-(J),

and (L)-(S) of USP Florence’s Institutional Supplement regarding the Secure Steps Toward

Awareness Growth and Emotional Strength (STAGES) Program, unless (1) Plaintiffs’ counsel or

the CLA has alleged that Defendant has substantially failed to comply with one of more of these

sections, or (2) a Class or Subclass Member has raised, during a Site Visit, an issue that

Defendant has substantially failed to comply with one of more of these sections. In such

circumstances, if the Monitor(s) agree that the alleged failures materially interfered with the

effective delivery of mental health services to participants in the Secure STAGES Program, the

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Monitor(s) may request access to records that the Monitor(s) reasonably determine are relevant to this issue, with the exception of Legal Privileged Information, which may be redacted.
46. In the event that the Bureau modifies any Program Statement or Institution Supplement that sets forth any Monitored Initiative in a manner that affects section or paragraph references, the Monitor(s) will monitor the applicable provisions of revised document subject to the same monitoring subject matters and subject matter limitations set forth in paragraphs 43, 44 and 45, above. For clarity, and as an example, if the Bureau revises its Program Statement regarding the Treatment and Care of Inmates with Mental Illness such that SMU referrals are addressed in a paragraph other than 8(b)(1), then the Monitor(s) shall not monitor the SMU referral section of the revised program statement, wherever it appears. Likewise, if the revised Program Statement addresses the investigation of inmate suicides in section 8(b)(1) of the revised Program Statement, then the Monitor(s) will monitor the revised section 8(b)(1), notwithstanding the specific paragraph references in this Addendum.
47. The Monitor(s) shall have access to the ADX as provided herein. While inside the ADX, the Monitor(s) will be escorted by staff pursuant to the institution’s standard security procedures. While inside the ADX, the Monitor(s) may, upon request, be escorted into each housing unit other than the Special Security Unit and Units/Ranges exclusively housing inmates in the Special Security Unit Program, except as authorized in paragraphs 50 and 51, below. While inside the ADX, the Monitor(s) may also request to inspect Health Services, Psychology Services, the group therapy area, the tele-psychiatry area, the visiting room, and receiving and discharge. While inside the ADX, the Monitor(s) may request and will have the ability to speak confidentially to any inmate who is not housed in the Special Security Unit or Units/Ranges exclusively housing inmates in the Special Security Unit Program; provided that if Defendant
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reasonably believes that an inmate with whom the Monitor(s) wishes to communicate confidentially poses a serious risk of harm to Bureau staff members or the Monitor(s) that cannot be managed using procedures and facilities ordinarily used for confidential mental health consultations, then Defendant may employ security measures reasonably necessary to safeguard staff members and the Monitor(s), and in so doing the confidentiality of the communication shall be maintained to the greatest extent possible. These visits will take place either in the confidential rooms in which therapy takes place, or, if not available in a particular unit, the visiting room.
48. The Monitor(s) shall have access to USP Florence as specified in this paragraph. While inside USP Florence, the Monitor(s) may, upon request, be escorted into the unit that houses the Secure STAGES Program, Health Services, the visiting room, receiving and discharge and any other area at USP Florence that the Monitor(s) reasonably determine he, she or they need to visit to carry out their duties concerning the Secure STAGES Program. While inside the Secure STAGES housing unit at USP Florence, the Monitor(s) will be escorted by staff pursuant to the institution’s standard security procedures. While in the Secure STAGES housing unit at USP Florence, the Monitor(s) may request and will have the ability to speak confidentially to inmates; provided that if Defendant reasonably believes that an inmate with whom the Monitors wishes to communicate confidentially poses a serious risk of harm to Bureau staff members or the Monitors that cannot be managed using procedures and facilities ordinarily used for confidential mental health consultations, then Defendant may employ security measures reasonably necessary to safeguard staff members and the Monitor(s), and in so doing the confidentiality of the communication shall be maintained to the greatest extent possible.
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49. There shall be no more than three Site Visits to FCC Florence per year. On one such visit each year, only the FCC Complex Warden and the Supervisory Attorney, currently Jack Fox and Christopher B. Synsvoll, respectively, shall have prior knowledge of the date and time of the visit. The Monitor(s) will coordinate the hours of the visits with Warden Fox and Mr. Synsvoll. Each visit may last for up to four consecutive business days, if necessary.
50. Procedures applicable to the Special Security Unit and Any Unit/Range Housing Special Security Unit Program Inmates. For any Site Visit, if requested by the Monitor(s), the Monitor(s) will be brought into the “bubble area” of the Special Security Unit and will be permitted to look down the ranges, but not to communicate with any inmate at that time. Magistrate Judge Hegarty (or his successor) may accompany the Monitor(s) on such a visit, and the Magistrate Judge will be permitted to enter the range on the Special Security Unit and to speak with any of the inmates there, unless such communication is prohibited by a Special Administrative Measure or an applicable court order.
51. Procedures applicable to inmates subject to Special Administrative Measures (SAMs), court-imposed communication restrictions, or who are subject to Bureau special security measures. Magistrate Judge Hegarty (or his successor) will also be permitted to conduct inmate interview(s) of inmates subject to Special Administrative Measures (SAMs), court-imposed communication restrictions, or who are subject to Bureau special security measures, unless prohibited by law or regulation. Magistrate Judge Hegarty may seek input from the Monitor(s) before and after the interview. These visits will be conducted in the visiting room area and will be subject to the monitoring terms of the SAMs. The inmates selected for such interviews have the right to decline to consent to the interviews.
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52. The Monitor(s) will conduct a close-out meeting with Christopher Synsvoll and/or the Complex Warden, or their designees, and one or more representatives designated by Plaintiffs after each visit, which Plaintiffs’ designees may attend in person if they are available, and otherwise by telephone.
53. The Monitor(s) will be permitted to conduct a baseline visit within 120 days of their appointment. This baseline visit may last for up to four business days. The hours of the visit will be coordinate with Warden Fox and Mr. Synsvoll. Defendant shall provide the Monitor(s) with an orientation to the ADX, and the Monitors may request additional information concerning background matters reasonably related to the Monitored Initiatives. The Monitor(s) shall have access to all records during the baseline visit as set forth below. The Monitor(s) may, upon request, meet one-on-one with inmates during the baseline visit. The inmates selected for such meetings have the right to decline to consent to the meetings. Upon the request of the Monitor(s) or any inmate, any such meeting shall be conducted confidentially; provided that if Defendant reasonably believes that an inmate with whom the Monitor(s) wishes to communicate confidentially poses a serious risk of harm to Bureau staff members or the Monitor(s) that cannot be managed using procedures and facilities ordinarily used for confidential mental health consultations, then Defendant may employ security measures necessary to safeguard staff members and the Monitor(s) but shall maintain the confidentiality of the communication to the greatest extent possible.
54. Defendant will direct all employees to cooperate fully with the Monitor(s), subject to any restrictions set forth herein.
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55. Prior to any Site Visit during the Compliance Period, Defendant will provide the Monitor(s) data and documents collected by Defendant to track compliance with the Monitored Initiatives.
56. During the Compliance Period, the Monitor(s) shall also have reasonable access to the medical (BEMR) and psychology (PDS) records for Class and Subclass members housed at ADX or Secure STAGES at USP Florence and to additional records that the Monitor(s) reasonably determine are relevant to the Monitored Initiatives (such as disciplinary records, recreation logs, medication compliance records, and relevant information from inmates’ Central Files), with the exception of Legal Privileged Information, which may be redacted, and documents relating to inmates assigned to the Special Security Unit Program. The Monitor(s) may also make reasonable requests for additional reports and documents to be compiled from existing data.
57. If documents are requested in conjunction with a Site Visit and the Monitor(s) requests the documents at least thirty (30) days prior to the visit, Defendant will provide these documents to the extent feasible within ten (10) business days prior to the visit.
58. The Monitor(s) will be provided with and sign an acknowledgement form for the confidentiality and Privacy Act Protective Orders entered by the Court. The Monitor(s) will keep the information he or she learns during the course of monitoring confidential as provided by those Orders, regardless of whether the information provided is specifically designated as confidential. Excepting only in connection with proceedings to enforce the terms of this Addendum, the Monitor(s) shall not testify in any other litigation or proceeding with regard to any act or omission of Defendant or any of its agents, representatives, or employees related to
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this Addendum, nor testify regarding any matter or subject that he or she may have learned as a result of his or her performance under this Addendum.
59. Following each visit, the Monitor(s) will provide to the Parties with a joint written report concerning the Defendant’s compliance with the Monitored Initiatives, which may be organized by those subject matter headings (e.g., Screening, Exclusion, Treatment, Reentry Services Planning, Discipline, Suicide Prevention, Training, Quality Improvement, and Secure STAGES). Each report may also include additional advice, suggestions or proposals in the nature of quality assurance or quality improvement as the Monitor(s) deem appropriate. The Monitor(s) will provide each report to the Parties in draft form for comment before finalizing the report, and will allow the Parties two weeks to comment. These reports shall be written with due regard for the privacy interests of individual inmates and staff.
60. To assess the current conditions, the Monitor(s) may review pertinent documents; interview necessary staff; and interview a sufficient number of inmates, all as determined by the Monitor(s) in his, her, or their reasonable discretion. The Monitor(s) may independently verify representations from Defendant and examine supporting documentation, where applicable. The Monitor’s(s’) Report may describe the steps taken to analyze conditions and implementation of the Monitored Initiatives, including documents reviewed and individuals interviewed, and the factual basis for each of the Monitor’s(s’) findings. If the Monitor(s) reports that Defendant is not in compliance with any Monitored Initiative, the Monitor(s) shall make recommendations as to actions the Monitor(s) believes necessary to meet the terms of the provision or provisions.
61. The report issued by the Monitor(s) shall not be admissible against Defendant or any current or former employee or contractor of Defendant in any other proceeding other than a proceeding related to the enforcement of this Addendum.
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62. Although Defendant will give full consideration to advice, suggestions, and proposals offered by the Monitor, all decisions concerning the specific diagnosis or assignment of mental health care-levels will be made by the Bureau’s mental health providers in accordance with this applicable Bureau policies, including the Monitored Initiatives, and any applicable legal requirements.
63. In the event that a suicide attempt or incident of self harm is determined by ADX to be serious, the event will be reported to the Monitor(s) within three (3) business days after it occurs. At the time of the report, the Bureau shall provide the Monitor(s) with the Suicide Risk Assessment or other relevant medical record. Upon request, the Bureau shall provide the Monitor(s) with additional information about the incident , with the exception of any Legally Privileged Information. After consulting with the Defendant, the Monitor(s) may in his or her reasonable discretion provide copies of the documents to Plaintiffs’ counsel. Such documents will be considered “Confidential”—whether or not they are so marked—and subject to the Protective Orders previously entered by the Court.
64. Any suicide will be reported to the Monitor(s) within three business days and will be investigated in accordance with Bureau policy. The identity of the inmate will not be disclosed until the next of kin has been contacted or until seven days have elapsed since the death and reasonable efforts to locate the next of kin have failed. All medical and psychological records about the inmate during the time he was housed at ADX shall be made available promptly to the Monitors. In addition, Defendant shall provide to the Monitors all after-action, incident, and other internal reports, investigations or conclusions concerning the suicide, with the exception of any Legally Privileged Information, within three business days after such materials are completed. After consulting with the Defendant, the Monitor(s) may in his or her reasonable
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discretion provide copies of the documents to Plaintiffs’ counsel. Such documents will be considered “Confidential”—whether or not they are so marked—and subject to the Protective Orders previously entered by the Court.
65. In the event that the Monitor(s) believe(s) that this Addendum unreasonably restricts his or her ability to monitor Defendant’s implementation of the Monitored Initiatives , or to otherwise adequately perform the obligations imposed by this Addendum on the Monitor(s), the Parties agree to negotiate in good faith in an effort to remedy the Monitor’s(’s) concerns. Any such issues not resolved following such good-faith negotiations shall be resolved as specified by section IX, Enforcement, below.
VII. CONSTRUCTION AND IMPLEMENTATION 66. Underlying Efforts and Collaboration. This Addendum reflects the substantial, voluntary efforts by Defendant to enhance the mental health services available to the members of the Class and Subclass, and the initiatives developed in collaboration with Plaintiffs’ counsel and experts. 67. Initial Substantial Compliance. Except where otherwise specifically indicated, Defendant shall achieve substantial compliance with all Monitored Initiatives by the time of the Baseline Visit. 68. Communication to Bureau Staff. Within 30 days following the Effective Date, Defendant shall communicate to Bureau employees, and any contractors involved in providing mental health treatment to inmates at the ADX or in the Secure Stages Program at USP Florence, the requirements set forth in this Addendum that are applicable to their respective jobs. 69. Application to Transferred Inmates. Nothing in this Addendum shall be deemed to limit any existing authority of Defendant to transfer inmates to other state or federal
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jurisdictions. If Defendant transfers any inmate who is a member the Screening Class or Treatment subclass and who is diagnosed with a Serious Mental Illness to a facility outside the District of Colorado, the Parties each reserve all of their respective rights and claims concerning the jurisdiction and powers of the United States District Court for the District of Colorado with respect to such inmate and specifically whether any failure to comply with the Policies during the time that inmate was housed at ADX or Secure STAGES constitutes a violation of this Addendum.
70. Admission, Waiver, and Sovereign Immunity. Neither this Addendum, nor any policies or procedures established thereunder, shall define any federal constitutional rights, be deemed an admission, or a waiver of sovereign immunity.
71. Governing Law. This Addendum shall be governed by federal law as enunciated or applicable in the Tenth Circuit, and to the extent that state law applies to any issue arising under, by the laws of the State of Colorado.
72. No Third Party Beneficiaries. No person or entity is intended to be a third-party beneficiary of this Addendum for purposes of any civil, criminal, or administrative action. This Addendum is not intended to impair or expand the right of any person or entity to seek relief against Defendant or its officials, employees or agents for their conduct, except as specifically provided in this Addendum. Moreover, the Parties will not contend that any of the provisions, policies, and procedures stated herein define clearly established constitutional rights of inmates. This Addendum is not intended to alter legal standards governing any such claims. Accordingly, this Addendum is not intended to have any preclusive effect except between Plaintiffs, Screening Class Members and Treatment Subclass Members on the one hand, and Defendant on the other
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hand, with respect to the relief provided for in this Addendum, other than as provided in paragraph 73, below.
73. Legal Release. Plaintiffs, the members of Screening Class and Treatment Subclass, and their heirs, administrators, representatives, successors, and assigns, and each of them hereby release, waive, acquit, and forever discharge the United States, the Federal Bureau of Prisons, and its employees in their official capacities from, and are hereby forever barred and precluded from prosecuting, any and all claims, causes of action, or requests for any injunctive or declaratory relief, including costs, attorneys’ fees, expenses, and/or interest, whether presently known or unknown, that have been asserted in this litigation, or that pertain to the treatment of ADX inmates’ mental health; provided that in no event shall this Release be deemed to release or otherwise affect in any way: (1) any claim for money damages; (2) any claim by any inmate for a judicial determination concerning the inmate’s personal mental health diagnosis; or (3) any claim based in whole or substantial part on events occurring during the Compliance Period and that does not concern one of the Monitored Initiatives.
74. Inmates Must Comply With Policies and Procedures. This Addendum in no way waives or otherwise affects, limits or modifies the obligations of inmates to comply with Bureau regulations, Program Statements, and Institutional Supplements; or any current or future federal law governing the rights and obligations of incarcerated persons.
75. Possible Conflict with Legal Obligations or Collective Bargaining Agreements. Nothing in this Addendum shall be deemed to require or permit Defendant to violate the laws of the United States, or to violate any terms or conditions of any collective bargaining agreement to which Defendant is a party. Defendant is not aware of any conflict between any of the
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provisions of this Addendum and any such law or collective bargaining agreement referred to in this section.
76. Entire Agreement. This Addendum shall constitute the entire integrated agreement of the parties; provided that the parties may enter into one or more separate agreements concerning any subject, which shall be enforceable according to their terms. No prior contemporaneous communications, oral or written, or prior drafts shall be relevant or admissible for any purpose in this litigation or in any other proceeding.
77. Successors and Assigns. This Addendum shall be applicable to, and binding upon, all Parties, their officers, agents, employees, assigns, and their successors in office.
78. Partial Invalidity. If any provision of this Addendum is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Addendum.
79. Use of Addendum in Other Proceedings. Neither the fact of this Addendum nor any statements contained herein may be used in any way, including in any other case or administrative proceeding, by any person, whether or not a party to this action, except that Defendant and its employees reserve the right to use this Addendum and the language herein to assert issue preclusion, res judicata, satisfaction, and release in other litigation matters seeking class or systemic relief regarding mental health services at ADX.
VIII. DURATION 80. Defendant shall not move to terminate the parties’ obligations and/or the Court’s jurisdiction under this Addendum before the second anniversary of the Effective Date. 81. Defendant shall not move to terminate the parties’ obligations and the Court’s jurisdiction under this Addendum at any time on or after the second anniversary and before the
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third anniversary of the Effective Date, unless Plaintiffs consent, in advance, in writing. A motion filed pursuant to this paragraph may seek to terminate all or portions of the obligations under this Addendum. Defendant may request that the Parties meet and confer about termination or partial termination at any time. Plaintiffs will consider in good faith any request by Defendant to terminate made under this paragraph, will not unreasonably withhold their consent to such a request, and if they do withhold consent will provide Defendant with the reason(s) consent was withheld, stated in reasonable detail. In the event the parties are unable to reach agreement on a request or partial request to terminate under the paragraph, either party may invoke the dispute resolution procedures in section IX below.
82. In the event that there is no motion filed and granted pursuant to the prior paragraph, the Parties’ obligations under this Addendum and the Court’s jurisdiction shall terminate on the third anniversary of the Effective Date; provided, however, that the Court may order a one-time, one-year extension of the Term of the Addendum (i.e., to a total term of four years from the Effective Date) for a specific obligation(s), upon a motion by Plaintiffs filed prior to the end of the three-year presumptive term. Such a motion may only be filed if the District Court has previously determined, based on a motion filed pursuant to paragraphs 92 or 93, below, that Defendant was not in substantial compliance during the first three years of the agreement, or if there is a pending appeal by Plaintiffs challenging the denial of such a motion. The parties will meet and confer prior to the filing of any such motion. In the event the parties are unable to reach agreement Plaintiffs’ proposed motion, either party may invoke the dispute resolution procedures in section IX below. If the motion is granted by the Court, the one-year, one-time extension shall apply only to the specific obligation(s) that was/were the subject of the motion to enforce compliance. Under no circumstances will the term of any
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provision of this Addendum, the parties’ obligations thereunder, or the Court’s jurisdiction extend beyond four years.
IX. DISPUTE RESOLUTION 83. If Plaintiffs’ counsel believes Defendant is not in substantial compliance with any Monitored Initiative and/or provision of this Addendum as it relates to a Class or Subclass member, Plaintiffs’ counsel shall contact Christopher Synsvoll or successor, or his designee, by email or telephone in an effort to resolve the matter informally. 84. If the foregoing informal effort does not resolve Plaintiffs’ counsel’s concerns within five (5) days, then Plaintiffs’ counsel shall notify Defendant in writing of the specific reasons why they believe Defendant is not in substantial compliance, including a reference to any finding of the Monitor(s) if Plaintiffs are relying on those findings or opinions. Defendant shall investigate and respond in writing within thirty (30) calendar days; provided that if Plaintiffs’ counsel reasonably believe that an issue presents a substantial risk of death or serious injury, then Defendant shall investigate and provide a preliminary verbal response as soon as practicable and in all events within five (5) business days, and shall provide a written response as soon thereafter as is practicable. Defendant’s response shall contain a description of the steps it took to investigate the issues addressed in the notification, the results of the investigation and whether or not Defendant proposes corrective action (and if so, a specific plan for addressing the issues). 85. If Plaintiffs’ counsel contend that Defendant’s response does not adequately resolve the issue, they shall request a prompt meet and confer with Defendant, unless the Parties have already met and conferred on such issue prior to Defendant’s written response. Either Party may request at any time that Magistrate Judge Hegarty, or his successor, participate in a meet
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and confer, or in a meeting subsequent to a meet and confer, in order to facilitate informal resolution of the issue.
86. If the Parties are unable to resolve informally a claim that Defendant is not in substantial compliance with one or more of the Monitored Initiatives or provisions of the Addendum, either side may seek mediation by Magistrate Judge Hegarty, or his successor, or by a private mediator, to mediate the dispute; or alternatively, may invoke the procedures in the “Enforcement” section, above.
87. If the Court enters an order pursuant to paragraph 92 and Plaintiffs contend that Defendant has not complied with that order, the procedures in paragraphs 83-86, above, will apply.
X. ENFORCEMENT 88. The parties stipulate and agree that this Addendum complies in all respects with the requirements for prospective relief under the Prison Litigation Reform Act, 18 U.S.C. § 3626(a), and that Act shall govern the terms of this Addendum. Except to enforce, modify, or terminate this Addendum, this Addendum, and any findings made to effectuate this Addendum, will not be admissible against the Bureau or its current or former employees in any court for any purpose. Moreover, this Addendum is not an admission of any liability on the part of United States and/or its employees, agents, and former employees and agents, or any other persons, and will not constitute evidence of any pattern or practice of wrongdoing. 89. This Addendum will be filed in the United States District Court as part of an unopposed motion by Plaintiffs pursuant to Federal Rule of Civil Procedure 23(e) and 41(a)(2) to approve this Addendum and to dismiss the Complaint subject to the parties’ compliance with the terms of this Addendum, as contemplated by Kokkonen v. Guardian Life Insurance Co. of
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America, 511 U.S. 375 (1994). This case will remain on the Court’s inactive docket for the Compliance Period. The Court will retain jurisdiction only to enforce the terms of this Addendum.
90. The Court shall be the sole forum for enforcement of this Addendum. The Parties agree to continue to work collaboratively and in good faith to avoid enforcement actions. The Bureau agrees that Christopher Synsvoll, Supervisory Attorney at the Federal Correctional Complex, Florence, Colorado, will remain the principal point of contact for any enforcementrelated issues, regardless of whether he later holds a different position within the Bureau. If Mr. Synsvoll is no longer employed as an attorney by the Bureau, the successor Supervisory Attorney at the Federal Correctional Complex in Florence will undertake this role.
91. The Parties agree that temporary or isolated incidents of non-compliance shall not constitute substantial non-compliance. The Parties also agree that Defendant is in substantial compliance unless there is evidence of something more than failure to comply with technicalities. However, the Parties agree that intermittent compliance during a period of sustained non-compliance shall not constitute substantial compliance.
92. If the Parties are unable to resolve informally a claim by Plaintiffs that Defendant is not in substantial compliance with one or more Monitored Initiatives or provisions of this Addendum pursuant to the procedures in the “Informal Resolution” section above, Plaintiffs, and only through counsel, may petition the Court to effect substantial compliance with such Monitored Initiatives or provision of this Addendum, but not through a petition for contempt, and only on the provision or provisions in which Plaintiffs claim Defendant is in substantial noncompliance through the dispute resolution process. Any relevant report of the Monitor(s) may be filed with the Court in connection with such a petition. The only issue before the Court will be
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whether Defendant is or is not in substantial compliance with a specific provision or provisions of the Monitored Initiatives or this Addendum. No petition may raise any claim for money damages or any claim by any inmate for a judicial determination concerning the inmate’s personal mental health diagnosis. If the Court determines that Defendant is not in substantial compliance, the Court may enter an order within the Court’s equitable or inherent authority to remedy the substantial non-compliance, but Plaintiffs may not seek an order of contempt.
93. If the Court enters an order pursuant to the preceding paragraph and Plaintiffs contend that Defendant has not complied with that order, they may, after reasonable notice to Defendant and an opportunity to cure, seek further relief from the Court. Reasonable notice shall include written notice providing specific facts and at least a 14-day time period to cure. Such further relief may include further equitable orders. Nothing in this paragraph purports to (i) limit the remedies or orders available to the Court in enforcing an order entered pursuant to the preceding paragraph; or (ii) waive the sovereign immunity of the United States.
XI. MODIFICATION 94. If, at any time, any party to this Addendum desires to modify this Addendum for any reason, that party will notify the other party in writing of the proposed modification and the reasons for it thirty (30) days before filing any motion seeking a modification. No modification will occur unless there is written agreement by the parties and unless the Court approves the modification under Fed. R. Civ. P. 23.
XII. ATTORNEYS’ FEES AND COSTS 95. The Parties do not agree as to the prevailing party in this matter. Defendant maintains its position was substantially justified. 96. Nevertheless, upon the Effective Date of this Addendum, Defendant will:
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a. pay the Washington Lawyers Committee for Civil Rights and Urban Affairs the sum of $30,424 to reimburse it for out-of-pocket expenses incurred and paid by that organization in connection with the Lawsuit, and make a separate lump sum payment of $73,704 to the Washington Lawyers Committee for Civil Rights and Urban Affairs to defray the attorneys’ fees incurred by that organization in connection with the case; and
b. pay Disability Law Colorado the sum of $5,500 to reimburse it for out-ofpocket expenses incurred and paid by that organization in connection with the Lawsuit, and make a separate lump sum payment of $48,217 to Disability Law Colorado to defray the attorneys’ fees incurred by that organization in connection with the case; and
c. pay Arnold & Porter LLP the sum of $3,692,155, which includes $880,297 to reimburse it for expert witness fees and other out-of-pocket expenses incurred and paid by that firm in connection with the Lawsuit. Of this total amount, Arnold & Porter will request the Court to approve a transfer of a lump sum payment of $2,811,858 to the Arnold & Porter LLP Foundation, which funds various public interest legal services efforts using money recovered from its work on pro bono matters.
97. Plaintiffs and their counsel agree not to seek further fees and costs with respect to work incurred prior to the Effective Date of this Addendum.
98. The parties shall bear their own costs and attorney’s fees for any subsequent proceedings following the Effective Date, other than Plaintiffs reserve their rights to seek fees and costs in only two circumstances: (1) if Defendant files a motion to terminate this Addendum prior to the second anniversary of the Effective Date, or (2) Plaintiff files and prevails on a motion to enforce based on substantial non-compliance.
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IT IS SO STIPULATED AND AGREED. For Plaintiffs: DATED: II - IL '(:)• 6

Edwin P. Aro Partner Arnold & Porter LLP

DATED:

Deborah Golden Project Director, D.C. Prisoners' Project Washington Committee for Civil Rights and
Urban Affairs

DATED:

Mark Ivandick Managing Attorney / Program Coordinator Disability Law Colorado

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IT IS SO STIPULATED AND AGREED. For Plaintiffs: DATED: _____________________
11 / 11 / 2016 DATED: _____________________

_________________________ Edwin P. Aro Partner Arnold & Porter LLP
,____P___'y__,__._(_d__(__)_,_-,_-_____--,
Deborah Golden Project Director, D.C. Prisoners’ Project Washington Committee for Civil Rights and
Urban Affairs

DATED: _____________________

_______________________ Mark Ivandick Managing Attorney / Program Coordinator Disability Law Colorado

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Case 1:12-cv-01570-RPM-MEH Document 382-1 Filed 11/16/16 USDC Colorado Page 43 of 43

For Defendants:
DATED: I 1 11016
DATED: it/ q //4

Kathleen M. Kenney Assistant Director / General Counsel Office of the General Counsel Federal Bureau of Prisons
cl# idee.0"*--' Amy L. Pa den Acting Executive Assistant U.S. Attorney Deputy Chief, Civil Division U.S. Attorney's Office, District of Colorado

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EXHIBIT 2

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U.S. Department of Justice Federal Bureau of Prisons

PROGRAM STATEMENT

OPI:

RSD/PSB

NUMBER: 5310.16

DATE:

May 1, 2014

Treatment and Care of Inmates With Mental Illness

/s/ Approved: Charles E. Samuels, Jr. Director, Federal Bureau of Prisons
1. PURPOSE AND SCOPE
This Program Statement provides policy, procedures, standards, and guidelines for the delivery of mental health services to inmates with mental illness in all Federal Bureau of Prisons (Bureau) correctional facilities.
For the purpose of this Program Statement, mental illness is defined as in the most current Diagnostic and Statistical Manual of Mental Disorders:
“A mental disorder is a syndrome characterized by clinical significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities.”
Classification of an inmate as seriously mentally ill requires consideration of his/her diagnoses; the severity and duration of his/her symptoms; the degree of functional impairment associated with the illness; and his/her treatment history and current treatment needs. Mental illnesses not listed below may be classified as seriously mentally ill on a case-by-case basis if they result in significant functional impairment.
The following diagnoses are generally classified as serious mental illnesses:
■ Schizophrenia Spectrum and Other Psychotic Disorders.

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■ Bipolar and Related Disorders. ■ Major Depressive Disorder.
In addition, the following diagnoses are often classified as serious mental illnesses, especially if the condition is sufficiently severe, persistent, and disabling:
■ Anxiety Disorders. ■ Obsessive-Compulsive and Related Disorders. ■ Trauma and Stressor-Related Disorders. ■ Intellectual Disabilities and Autism Spectrum Disorders. ■ Major Neurocognitive Disorders. ■ Personality Disorders.
The primary purpose of this Program Statement is to ensure that inmates with mental illness are identified and receive treatment to assist their progress toward recovery, while reducing or eliminating the frequency and severity of symptoms and associated negative outcomes of mental illness, such as exacerbation of acute symptoms, placement in restrictive housing, need for psychiatric hospitalization, suicide attempts, and death by suicide.
The secondary purpose of this Program Statement is to address dynamic risk factors associated with recidivism in inmates with mental illness to increase pro-social and adaptive living skills and the likelihood of successful reentry to the community.
a. Summary of Changes
Policy Rescinded P5310.13 Institution Management of Mentally Ill Inmates (3/31/95)
This reissuance incorporates the following modifications:
■ Evidence-Based Practices for the treatment and care of mentally ill inmates are detailed and Priority Practices are established.
■ The mental health care level system is operationalized. Mental health care level definitions are provided, which include diagnostic, impairment, and intervention-based criteria. In addition, care level-based treatment and documentation requirements are noted.
■ A team approach to mental health care is established, including introduction of an institution Care Coordination and Reentry (CCARE) Team with joint Psychology Services and Health Services membership.
■ Enhanced procedures for screening, evaluation, and intervention with inmates in restrictive housing settings are detailed.

P5310.16 5/1/2014

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■ Procedures for providing mental health training for staff are outlined, including basic training for all staff as well as specialty training for interested staff.
■ A mental health companion program is established to provide peer assistance and support to inmates with mental illnesses.
■ Achievement awards for inmate participation in mental health programming are introduced. ■ Designation, transfer, and release procedures for mentally ill inmates are updated and
refined, with an emphasis on continuity of care – both across institutions and to the community.
b. Program Objectives
■ To identify inmates with mental illness through screening and classification upon their entry into the Bureau and again upon their arrival at an institution to achieve an accurate diagnosis and determine the severity of mental illness and suicide risk.
■ To ensure Psychology Treatment Programs and mental health interventions prescribed in treatment plans ordinarily rely on evidence-based practices for the treatment of inmates with mental illness and rehabilitation needs.
■ To extend support for inmates with mental illness beyond traditional professional services through creation of specific supportive communities, specialized staff training, inmate peer support programs, care coordination teams, and institutions with specialized mental health missions.
■ To enhance continuity of care through a network of accessible, interrelated interventions and communication among care providers when inmates transfer between institutions, to a Residential Reentry Center (RRC), to home confinement, or to the community.
■ To reduce the proportion of inmates with mental illness in restrictive housing settings through informed disciplinary processes, initial screening procedures, enhanced treatment in these settings, and strategies for successful reintegration into the general population.
■ To increase rates of successful reentry among inmates with mental illness through accurate identification of at-risk inmates, effective skill building in prison, and comprehensive release plans.
2. RESPONSIBILITIES
a. Psychology Services Branch and Health Services Division. The Psychology Services Branch (Branch), Reentry Services Division, and Health Services Division (HSD) provide oversight and consultation regarding institution treatment and care of inmates with mental illness through remote reviews of the Psychology Data System (PDS) in the Bureau Electronic Medical Record (BEMR) and other BEMR documentation; remote reviews of inmates in restrictive housing; recommendations regarding transfers and designations of mentally ill inmates; and

P5310.16 5/1/2014

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direct consultation with Chief Psychologists, Psychiatrists, other Health Services staff, and Executive Staff.
The Branch is responsible for developing Annual Refresher Training lesson plans that provide staff with information about working with mentally ill inmates. They also develop and disseminate supplemental staff training materials for use by the Mental Health Treatment Coordinator during staff recalls, lunch and learn events, department head meetings, etc. The Branch also identifies and disseminates evidence-based practices, described below.
b. Warden. Each Warden is responsible for the appropriate management of mentally ill inmates in his/her institution. He/she must provide the Mental Health Treatment Coordinator with adequate time to educate staff about the need to detect and report any unusual inmate behaviors that might suggest mental illness. For example, this education should occur at department head meetings, staff recalls, lieutenants’ meetings, and annual training.
c. Chief Psychologist. Each Chief Psychologist ensures the provisions of this Program Statement are implemented, including designation of a psychologist to serve as Mental Health Treatment Coordinator, and informing institution staff of the designation. The Chief Psychologist is also responsible for ensuring information about the availability of mental health services is disseminated to inmates during Admission and Orientation. Specifically, the Chief Psychologist ensures the Admission and Orientation lesson plan developed by the Psychology Services Branch is utilized to convey this information. In addition, the Chief Psychologist is responsible for ensuring basic psychological services (e.g., mental health screening, brief counseling), as detailed in the Program Statement Psychology Services Manual, are made available to inmates.
d. Mental Health Treatment Coordinator. The Mental Health Treatment Coordinator is a licensed doctoral-level psychologist who manages the treatment and care of inmates with mental illness and ensures that all provisions of this Program Statement are implemented. A licensed doctoral-level psychologist has satisfactorily completed all the requirements for a doctoral degree directly related to full professional work in psychology (i.e., a Ph.D. or Psy.D. in Clinical or Counseling Psychology), and has obtained a license to practice as a psychologist.
e. Social Worker. The institution Social Worker is a licensed professional who may provide individual or group counseling in support of this policy. Additionally, the institution Social Worker or Regional Social Worker may develop comprehensive release plans to ensure continuity of care for inmates with mental illness who transition to the community without the benefit of Residential Reentry or Home Confinement placement. In this capacity, Social Workers coordinate with United States Probation Officers, Courts, community mental health professionals, and families to identify appropriate placements and to address reentry needs.

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f. Psychiatrist/Psychiatric Nurse Practitioner. Health Services organizes, conducts, and administers psychiatric services. The Psychiatrist/Psychiatric Nurse Practitioner accepts referrals through BEMR for cases believed to be in need of psychiatric medication evaluations. Regular interdisciplinary communication is maintained between the Mental Health Treatment Coordinator and Health Services staff, including contract psychiatrists, to optimize treatment efficacy.
g. Health Services Administrator. In facilities that use contract psychiatric services, the Health Services Administrator is responsible for contract development and oversight with input from the Mental Health Treatment Coordinator.
h. Clinical Director. The Clinical Director will ensure that the general medical needs of each inmate are addressed and that HSD staff rounding in the units and conducting sick call and clinics have received the necessary training to recognize signs and symptoms of mental illness.
i. Community Treatment Services (CTS). CTS is responsible for the establishment and oversight of community-based mental health, substance abuse, and sex offender treatment services.
j. Residential Reentry Management Branch (RRMB). RRMB is responsible for coordinating with the Psychology Services Branch, in particular CTS staff, to ensure mentally ill inmates releasing through Residential Reentry Centers and Home Confinement are placed appropriately.
j. Care Coordination and Reentry (CCARE) Team. The CCARE Team is a multidisciplinary team that uses a holistic approach to ensure that critical aspects of care for inmates with mental illness are considered and integrated. The CCARE Team is responsible for identifying potential concerns affecting inmates with mental illness in a correctional environment.
j. All Staff. Any staff member who observes unusual behavior in an inmate that may indicate mental illness should report these observations to the Chief Psychologist or Mental Health Treatment Coordinator.
3. RECOVERY-ORIENTED PROGRAM MODEL
Consistent with the recommendations of the President’s New Freedom Commission on Mental Health, the Bureau has identified recovery as a guiding principle in the treatment and care of inmates with mental illness. Mental health recovery refers to the process by which people are able to live, work, learn, and participate fully in their communities. For some individuals,

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recovery is the ability to live a fulfilling and productive life despite a disability. For others, recovery implies the reduction or complete remission of symptoms.
According to the National Consensus Statement on Mental Health Recovery, there are ten fundamental components of recovery. The Bureau strives to integrate these components into its Psychology Treatment Programs (PTPs), mental health interventions, and treatment plans for inmates with mental illness. The components of recovery are: self-direction, individualized and person-centered care, empowerment, holistic treatment, non-linear progression, strengths-based focus, peer support, respect, responsibility, and hope.
4. EVIDENCE-BASED PRACTICES (EBPs)
Psychology Treatment Programs, mental health interventions, and individualized treatment plans for inmates with mental illness rely on evidence-based clinical practices that have been demonstrated to reduce the symptoms of mental illness. EBPs are quickly evolving and cannot be fully listed in the present policy. Therefore, the Bureau maintains a database of EBPs on Sallyport, which is updated as indicated by professional literature. The Psychology Services Branch facilitates implementation of EBPs with materials, education, training, and consultation.
Holistic, recovery-oriented care for inmates with mental illness involves assessing their need for both mental health treatment and rehabilitation programs that reduce the risk of recidivism; services are provided in each of these areas as appropriate. EBPs are selected based on their adherence to this model. Consistent with evidence-based practice, the delivery of mental health services is prioritized for inmates classified as CARE2-MH, CARE3-MH, and CARE4-MH.
a. Cognitive Behavioral Therapy (CBT). The Bureau’s treatment programs and mental health services are unified clinical activities organized to treat inmates’ complex psychological and behavioral problems throughout the course of incarceration. The Bureau has chosen CBT as a theoretical model because of its proven effectiveness with inmate populations. This guiding model creates theoretical continuity, ensuring that learning and practice are built upon similar principles regardless of the institution, treatment provider, or treatment program in which they occur.
CBT emphasizes the learning and practice of skills associated with improved mental health and adaptive, pro-social behavior. Therefore, inmates who participate in CBT and related interventions (e.g., Dialectical Behavior Therapy [DBT]) are better able to achieve goals the Bureau has for all inmates, including responsibility, self-awareness, and independence.
b. Group Treatment. Group treatment has proven to be both clinically effective and an efficient use of resources in the treatment of mental illness. Group treatments have the benefit of modeling by the facilitator and other participants, building social support, and allowing the

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immediate practice of new skills. A number of EBPs supported by the Bureau were designed specifically for or can be adapted to a group format. Mental health clinicians are encouraged to provide treatment using a therapeutic group format.
For the purposes of mental health care in the general population, therapeutic groups may be open or closed, are evidence-based, and ordinarily:
■ Use an established Bureau protocol. ■ Are facilitated by a mental health clinician (i.e., psychologist, psychiatrist, social worker,
mental health treatment specialist, psychology intern). ■ Meet at least every other week. ■ Have a continuity in membership, no greater than 12 participants. ■ Provide a therapeutic intervention (not just to “check in” with the therapist). ■ Hold rapport building and mutual concern among members as a primary goal.
Following participation in therapeutic groups, it may be appropriate to place an inmate in a maintenance group. Maintenance groups have the same characteristics as therapeutic groups, except that their goal is to maintain progress on therapeutic goals and they may meet less frequently (but at least monthly).
c. Priority Practices. The Psychology Services Branch designates certain EBPs as Priority Practices – EBPs delivered in group format that address core needs of the inmate population. They prioritize services for inmates with the most severe forms of mental illness and give consideration to a balanced offering of groups that address mental illness and criminal thinking. They may differ across institutions, based on security level, care level, and mission. The Psychology Services Branch places information regarding Priority Practices for each type of institution on Sallyport.
Ordinarily, Psychology Services departments are actively engaged in the provision of Priority Practices as a vital function. Priority Practices are offered before other types of groups. At a minimum, Psychology Services departments offer at least one Priority Practice therapeutic group each quarter, in addition to groups offered in PTPs. For complexes, each institution is considered independently. Satellite facilities are excluded, unless a full-time clinical staff member is assigned.
d. Skills Training. The Bureau emphasizes the learning and practice of skills as an important component of treatment for inmates with mental illness. Treatments that emphasize developing new skills (e.g., CBT, DBT, Illness Management and Recovery, Anger Management) encourage responsibility, empowerment, and independence upon reentry.

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e. Criminal Thinking and Risk. For most inmates with mental illness, the treatment of mental health symptoms is necessary but not sufficient to reduce the risk of recidivism. Holistic treatment considers which empirically validated dynamic risk factors associated with recidivism must be included in the treatment plan (e.g., criminal thinking errors, substance use, antisocial associates, lack of leisure and recreation activities, school or work functioning).
f. Peer Support. Peer support is an EBP and core component of the Mental Health Recovery Model; it functions as an adjunct to professional interventions by extending the mental health system. Inmates who underuse professional services may actively engage in peer support activities that benefit their mental health and that of their peers.
5. MENTAL HEALTH CARE LEVELS
Mental health care levels are used to classify inmates based on their need for mental health services. The contact frequencies described below refer to contacts where psychosocial interventions are provided.
a. Definitions
(1) CARE1-MH: No Significant Mental Health Care. An individual is considered to meet CARE1-MH criteria if he/she:
■ Shows no significant level of functional impairment associated with a mental illness and demonstrates no need for regular mental health interventions; and
■ Has no history of serious functional impairment due to mental illness or if a history of mental illness is present, the inmate has consistently demonstrated appropriate help-seeking behavior in response to any reemergence of symptoms.
(2) CARE2-MH: Routine Outpatient Mental Health Care or Crisis-Oriented Mental Health Care. An individual is considered to meet CARE2-MH criteria if he/she has a mental illness requiring:
■ Routine outpatient mental health care on an ongoing basis; and/or ■ Brief, crisis-oriented mental health care of significant intensity; e.g., placement on suicide
watch or behavioral observation status.
(3) CARE3-MH: Enhanced Outpatient Mental Health Care or Residential Mental Health Care. An individual is considered to meet the criteria for CARE3-MH if he/she has a mental illness requiring:
■ Enhanced outpatient mental health care (i.e., weekly mental health interventions); or

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■ Residential mental health care (i.e., placement in a residential Psychology Treatment Program).
(4) CARE4-MH: Inpatient Psychiatric Care. A mentally ill inmate may meet the criteria for CARE4-MH and require acute care in a psychiatric hospital if the inmate is gravely disabled and cannot function in general population in a CARE3-MH environment.
b. Determination of Mental Health Care Levels. All current mental health illnesses should be diagnosed in a Diagnostic and Care Level Formulation note in PDS, including personality disorders and intellectual disabilities. The cumulative impact of the disorders on functioning is taken into account when assigning a mental health care level.
To assign a care level, staff consider the inmate’s current, recent, and historical need for services. However, this is not the only indicator, as it must be balanced with the inmate’s diagnosis and anticipated need for future services. For example:
■ Inmates diagnosed with major mental illnesses and/or currently taking antipsychotic medications are not ordinarily classified as CARE1-MH due to their risk of relapse and the lack of resources to address such a relapse at a CARE1-MH facility.
■ Inmates releasing from Medical Referral Centers (MRCs) where they received treatment for acute mental health problems are ordinarily classified as CARE3-MH, due to the resources required to assist them in adjusting to a mainline institution.
Discrepancies in the Record. Occasionally there are diagnostic discrepancies between providers. When this occurs, the Mental Health Treatment Coordinator or treating psychologist attempts to reconcile these differences. The Mental Health Treatment Coordinator or treating psychologist reviews the record, consults with other treatment providers (including Health Services staff), performs a clinical interview, and observes symptoms and behaviors. The Coordinator or psychologist then integrates the data, noting alternate conceptualizations; attempts to reach consensus between care providers; enters a diagnosis in the Diagnostic and Care Level Formulation note in PDS; and provides a rationale for the decision. If the discrepancy cannot be resolved at this level, the Chief Psychologist and Chief Psychiatrist, if applicable, will review the case, resolve the discrepancy, and document their findings.
A supplemental Mental Health Care Level Training Guide is available on Sallyport. The guide is also disseminated during Psychologist Familiarization Training and annual mental health training events. This guide is designed to assist psychologists in determining appropriate mental health care levels.

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c. Treatment Requirements for Mental Health Care Levels. The required treatment detailed below is not necessarily provided exclusively by the Mental Health Treatment Coordinator; for example, another psychologist may provide this care.
(1) Mental Health Care Level One. Inmates classified as CARE1-MH are not required to receive any regular mental health services or to have a treatment plan. When mental health services are provided to these inmates, they are documented in PDS.
(2) Mental Health Care Level Two. Required services include, but are not limited to:
■ A diagnosis and mental health care level for each inmate will be documented in a Diagnostic and Care Level Formulation note in PDS.
■ A rationale for the diagnosis and assigned care level will also be documented in the Diagnostic and Care Level Formulation note in PDS.
■ A collaborative, individualized treatment plan that describes the inmate’s problems and goals, and the interventions planned to assist with goal attainment will be developed, reviewed, and updated at least every 12 months.
■ Evidence-based psychosocial interventions on at least a monthly basis (if group treatment is offered, it should occur at least every other week, to provide continuity of care).
(3) Mental Health Care Level Three. Required services include, but are not limited to:
■ A diagnosis and mental health care level for each inmate will be documented in a Diagnostic and Care Level Formulation note in PDS.
■ A rationale for the diagnosis and assigned care level will also be documented in the Diagnostic and Care Level Formulation note in PDS.
■ A collaborative, individualized treatment plan that describes the inmate’s problems and goals, and the interventions planned to assist with goal attainment, will be developed, reviewed, and updated at least every 6 months.
■ Evidence-based psychosocial interventions on at least a weekly basis are provided via enhanced outpatient care or on a scheduled basis consistent with a residential Psychology Treatment Program.
(4) Mental Health Care Level Four. This treatment takes place only in a Medical Referral Center. Required services include, but are not limited to:
■ A diagnosis and mental health care level for each inmate will be documented in the Diagnostic and Care Level Formulation note in PDS.
■ A rationale for the diagnosis and assigned care level will also be documented in the Diagnostic and Care Level Formulation note in PDS.

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■ A collaborative, individualized treatment plan that describes the inmate’s problems and goals, and the interventions planned to assist with goal attainment will be developed, reviewed, and updated at least every 90 days.
■ Evidence-based psychosocial interventions and/or individual mental health contacts will occur on at least a weekly basis.
At CARE4-MH sites, for inmates too cognitively impaired to engage in traditional psychosocial interventions (i.e., severe neurocognitive disorders), supportive contacts from a broad variety of providers may be the most appropriate care plan. Frequency and type of care will be determined on an individual basis for these cases.
d. Treatment Refusal. If an inmate declines treatment consistent with his/her mental health care level, a treatment plan is developed and implemented to frequently assess the inmate’s mental status, build rapport, and encourage engagement in a treatment process. Ordinarily, the treatment plan will include a monthly attempt to engage the inmate. Rapport building strategies may include: group leisure activities; visits to the inmate’s unit or work site; and “drop-in” group for informal socialization with peers.
An inmate who refuses mental health treatment consistent with his/her mental health care level may be considered for involuntary commitment.
6. IDENTIFICATION AND PLACEMENT OF MENTALLY ILL INMATES
All Bureau facilities employ psychologists skilled in the screening, diagnosis, and treatment of mental disorders. Although the Bureau concentrates mental health resources at some institutions, all institutions, regardless of care level, are expected to provide services for inmates with mental illness.
Psychology Services and Health Services departments within each institution ensure every inmate with a clinically identified need for psychological treatment has access to mental health care. They ensure inmates undergo appropriate screening, assessment, and referral to identify and address their mental health, substance abuse, and other behavioral health needs. Psychology Services departments offer a variety of services and programs for inmates – psycho-educational groups, brief counseling, individual and group psychotherapy, crisis intervention, suicide prevention, and residential treatment programs. Health Services departments provide inmates with access to appropriate psychiatric medications to address identified mental health conditions.
a. Pre-Designation Screening. Newly designated inmates are screened by Designation and Sentence Computation Center (DSCC) staff based on information in their Pre-Sentence Report (PSR). This screening matches the inmate’s estimated need for mental health services with an institution’s resources at the time of initial designation.

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b. Initial Care Level Assignment. Mental health screen assignments (SCRNX-MH) are part of the designation process. The assignments are generated by DSCC staff using the medical calculator and are based on review of the PSR, information received from outside sources, a review of other records, etc.
c. Medical Staff Screening. Medical staff provide an initial screening for physical and mental health concerns, including suicide ideation, symptoms of mental illness, and sexual victimization. They document their findings in BEMR and advise Psychology Services of any concerns.
d. Psychology Intake Screening. Psychology Intake Screening occurs within the timeframes specified in the Program Statement Psychology Services Manual and is documented in PDS. At this time the mental health screen assignment is replaced with the mental health care level assignment in SENTRY, and the mental health care level is documented in Psychology Intake Screening, along with a rationale. If the care level is CARE2-MH, CARE3-MH, or CARE4MH, a Diagnostic and Care Level Formulation note is entered into PDS. In addition, Psychology Services staff notify Health Services staff of any relevant concerns; e.g., a recommendation for a psychiatric medication consultation.
e. Assignment and Change of Mental Health Care Level Assignment. Bureau psychologists, psychiatrists, and qualified mid-level practitioners (i.e., a physician assistant or nurse practitioner who is licensed in his/her field of medicine and has specialized training in mental health care) can determine a mental health care level following a review of records and a face-to-face clinical interview. Therefore, assigned mental health care levels represent clinical information about an inmate and are not changed for administrative, designation, or transfer purposes. If there is not agreement regarding an inmate’s mental health care level assignment, refer to Section 5b of this policy to resolve any discrepancies.
Mental health care levels are to be entered into SENTRY by Bureau psychologists. As applicable, information provided by Bureau psychiatrists will inform decisions regarding mental health care level assignments. To assign or change a mental health care level a psychologist, psychiatrist, and qualified mid-level practitioner must:
■ Review the clinical record. ■ Conduct a clinical interview. ■ Establish a diagnosis or indicate the absence of a diagnosis. ■ Indicate and explain the type and frequency of mental health care contacts required. ■ Document this information in the Diagnostic and Care Level Formulation note.

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Mental health care level assignments, and changes to these assignments, are not required for inmates housed in non-Bureau facilities; i.e., private correctional institutions, Residential Reentry Centers, and other contract facilities. In addition, these assignments are not required for inmates in transit. If it becomes clear that a mental health care level assignment needs to be updated to accurately represent the inmate’s needs upon return to a Bureau facility, Psychology Services Branch staff update the code and enter a note in PDS describing what is known about the situation and the inmate’s mental health needs.
f. Facilities with Pretrial Inmates. Psychology Services staff are not required to enter mental health care level assignments for all pretrial inmates. However, they must enter assignments for the following pretrial inmates:
■ Inmates who undergo a Psychology Intake Screening on the basis of their endorsements on the Psychology Services Inmate Questionnaire (PSIQ).
■ Inmates who self-refer or are referred to Psychology Services due to mental health symptoms.
■ Inmates who have a recently completed forensic evaluation by a Bureau psychologist or psychiatrist.
■ Inmates who require a Suicide Risk Assessment.
If a pretrial inmate does have a care level assignment, it is expected that he/she will receive mental health services consistent with the frequency requirements of that care level. The creation of a treatment plan is clinically appropriate for inmates for whom a long stay is anticipated. However, due to the rapid and unpredictable turnover associated with pretrial facilities, treatment plans are not required.
If the DSCC receives a request for an initial designation and a pretrial facility has already classified a mental health care level for the inmate, the DSCC does not modify this assignment or change it back to a screen code.
7. TEAM APPROACH TO CARE
Due to their potential vulnerability in a correctional setting, inmates with mental illness may require special accommodation in areas such as housing, discipline, work, education, designations, transfers, and reentry to ensure their optimal functioning. The Bureau uses a team approach to ensure the needs of inmates with mental illness are identified and addressed.
The institution Care Coordination and Reentry (CCARE) Team is a multidisciplinary team that uses a holistic approach to ensure critical aspects of care for inmates with mental illness are considered and integrated. It is a required component at all CARE2-MH, CARE3-MH, and CARE4-MH institutions. It is not required at pretrial facilities or Federal Transfer Centers.

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The CCARE Team identifies potential concerns affecting inmates with mental illness in a correctional environment, such as:
■ Mental health symptoms that are unreported or unidentified by the inmate. ■ Housing problems or cellmate conflicts. ■ Work and/or leisure time deficits. ■ Criminal thinking and behavior. ■ Bullying or abuse by other inmates. ■ Escalating patterns of destructive or dangerous behavior.
The CCARE Team also identifies strategies and supports to mitigate potentially negative interactions between inmates with mental illness and the correctional environment, such as:
■ Positive reinforcers for behavior consistent with treatment goals. ■ Social supports (cellmates, positive staff relationships, spiritual community, mental health
companion program). ■ Housing accommodations. ■ Meaningful ways to spend time (work, supported employment, recreation, drop-in group).
The CCARE team considers how these strategies and supports might be applied to improve functioning and enhance opportunities for recovery. Meetings are ordinarily held no less than once a month and may be held in conjunction with the SHU Meeting.
Every CARE4-MH inmate is reviewed by the team at least quarterly. Every CARE3-MH inmate is reviewed by the team as needed and at least semi-annually. CARE2-MH inmates are reviewed by the team as needed and at least annually. If an inmate participates in a residential PTP, his/her case may be staffed in that setting at the discretion of the Mental Health Treatment Coordinator.
At a minimum the CCARE Team includes:
■ Mental Health Treatment Coordinator (CCARE Team co-leader). ■ Provider of psychiatric services (CCARE Team co-leader). ■ Treating psychologist. ■ Institution Social Worker (if applicable). ■ Pharmacist.
In addition, the Mental Health Treatment Coordinator invites the following staff, and others as deemed appropriate, to attend CCARE Team meetings:

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■ Clinical Director. Clinical Directors are strongly encouraged to attend, particularly at CARE4-MH facilities.
■ Supervisor of Recreation. ■ Applicable unit managers. ■ Correctional Services Supervisor. ■ Supervisory Chaplain.
The following staff serve on the CCARE Team in special circumstances, as detailed below:
■ Regional Social Workers and Community Treatment Services (CTS) staff are required to attend only when reentry needs are being discussed. They may attend via video or teleconference.
■ The Disciplinary Hearing Officer (DHO) may attend if a mentally ill inmate is facing serious disciplinary action.
■ Depending on the focus of the meeting, other staff may be invited, such as work supervisors or teachers.
In Psychiatric Referral Centers team composition may vary. However, the team model is used.
8. RESTRICTIVE HOUSING
The Bureau strives to avoid prolonged placement of inmates with serious mental illness in settings such as Special Housing Units (SHU) and the Special Management Unit (SMU). However, sometimes such placement of inmates is required due to safety and security needs. If, due to safety and/or security needs, an inmate with a serious mental illness needs to be placed in restrictive housing, he/she will continue to receive mental health care commensurate with his/her treatment needs.
a. Services for Inmates in Restrictive Housing. Ordinarily, all critical contacts, regardless of an inmate’s mental health care level, will, to the extent possible, be conducted in a private area. These include:
■ Diagnostic assessments. ■ Suicide risk assessments. ■ Crisis intervention contacts. ■ Protective custody reviews. ■ Sexual assault prevention intervention. ■ Mental health treatment contacts as indicated by the treatment plan. ■ Any other service that addresses potentially sensitive issues or high-risk behaviors.
Additionally, all inmates with mental illness in restrictive housing units (e.g., SHU, SMU, ADX) will receive, at a minimum, face-to-face mental health contacts consistent with the type and

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frequency indicated by their care level, to the extent feasible. These contacts take place in a manner that protects an inmate’s privacy to the extent that safety and security of staff are not compromised. Contacts should be consistent with the goals of the treatment plan, and are in addition to any critical contacts or contacts required by policy (e.g., SHU Review).
Exceptions to private critical contacts and mental health treatment contacts should be made in cases where the inmate is behaving in an aggressive manner or when institutional safety and security considerations are determined to require an exception. Contacts should be suspended if an inmate becomes aggressive, such that the staff member is concerned about his/her safety. The contact is reinitiated once additional security is in place or when the inmate has regained control of his/her behavior. Exceptions are not made due to logistical issues concerning moving the inmate out of his/her cell or difficulty locating a private space.
The Bureau recognizes that an inmate’s mental health may deteriorate during a restrictive housing placement. Potential issues are mitigated through a variety of strategies that are applied collaboratively by staff across disciplines:
■ During rounds, all staff will make themselves available for brief conversations that demonstrate concern and their availability to provide assistance.
■ Except in unique circumstances, mental health clinicians will not participate as a team member in a calculated use of force situation.
■ Inmates are removed from their cells for private or extended interviews with Psychology and Psychiatry Services staff as a standard procedure.
■ In-cell activities (e.g., books, puzzles, games, audio/video entertainment and programming [if applicable]) will be provided by the corresponding departments.
■ Close attention will be paid to the importance of out of cell, unstructured recreation time specific to inmates’ needs and encouraging inmates to take advantage of out of cell activities.
If restrictive housing appears to have a negative impact on the inmate’s mental health, the Mental Health Treatment Coordinator actively works with the CCARE Team to mitigate the negative impact or identify an appropriately secure alternative placement.
b. Extended Restrictive Housing Placement Reviews. Inmates referred for extended placement in restrictive housing (i.e., SMU, ADX) must be reviewed by Psychology Services staff to determine if mental health issues exist that preclude placement in this setting. Psychiatry Services staff may be consulted in making this determination. In addition, inmates housed in restrictive housing for an extended period of time receive an enhanced mental health review, detailed below. The Psychology Services Branch provides oversight of mentally ill inmates in restrictive housing through the procedures and reviews described below.

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(1) SMU Referral Review Procedures. The following SMU referrals are reviewed by the Psychology Services Branch in collaboration with the Chief Psychiatrist, Health Services Division, as applicable, prior to placement:
■ Inmates classified as CARE2-MH, CARE3-MH, and CARE4-MH in SENTRY. ■ Inmates classified as PSY ALERT in SENTRY. ■ Inmates noted to be receiving psychiatric medications. ■ Any inmate for whom the institution Chief Psychologist requests a review based on mental
health or cognitive limitation concerns. ■ Any inmate for whom the DSCC requests a review based on mental health or cognitive
limitation concerns.
In conducting this review, the Branch applies the exclusionary criteria noted below (SMU/ADX Exclusionary Criteria) to identify any inmates precluded from SMU placement.
(2) ADX Referral Review Procedures. A mental health evaluation is a required component of all referral packets for the ADX Florence Control Unit and ADX Florence General Population (per the Program Statements Control Unit Programs and Inmate Security Designation and Custody Classification, respectively).
The mental health evaluation is conducted by a licensed doctoral level psychologist. An interview of the inmate and psychological testing (the current version of the Personality Assessment Inventory) are required components. In addition, screening for intellectual disability is required (the current version of the Kaufman Brief Intelligence Test) and, if indicated, further testing (the current version of the Wechsler Adult Intelligence Scale). Before the interview, a notice of psychological evaluation must be provided. Notification forms are BP-A1055, Notice of Psychological Evaluation – ADX Control Unit, and BP-A1056, Notice of Psychological Evaluation – ADX General Population. If the inmate refuses to cooperate with the interview or psychological testing, the evaluation proceeds. This refusal is noted in the report.
The required format for the mental health evaluation report is outlined below:
ADX Mental Health Evaluation
■ Identifying Data. Identifying data includes: inmate name and register number, gender, race, ethnicity, languages spoken, date of birth and age, current sentence, and projected release date. In addition, the identifying data section indicates the date and place of the evaluation and the name of the evaluator.
■ Notice of Psychological Evaluation. Confirms the inmate was provided with the Notice of Psychological Evaluation. If he/she refused to sign, the information is noted in this section.

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■ Assessment Procedures. Lists the assessment procedures used, including: Notice of Psychological Evaluation, clinical interview, PSR and Central File review, collateral information and observations by other staff, and psychological testing (specify tests administered; e.g., PAI, WAIS-IV, KBIT-2). Note: An attempt to interview the inmate and conduct psychological testing must occur in all cases. If the inmate refuses to cooperate, his/her refusal is noted in this section and in the psychological testing section.
■ Psychosocial History. Briefly addresses the inmate’s psychosocial history, as relevant to this report, noting not only significant deficits or limitations, but also areas of specific strength. Topics that may be addressed include:
¾ Family History. Describes family of origin; any noteworthy criminal, psychiatric, or medical history of relatives; any history of abuse or trauma in the family; and marital history if applicable.
¾ Educational History. Briefly notes the inmate’s educational history, with emphasis on noted intellectual disabilities, cognitive impairments, and results of intelligence testing.
¾ Employment History. Briefly describes the inmate’s employment history, including any prior military experience.
■ Medical History. Briefly notes significant medical conditions, such as chronic illnesses or disabilities.
■ Mental Health History. Typically contains a greater level of detail and includes the following (if applicable): historical information related to psychiatric hospitalizations, past mental health diagnoses, use of psychiatric medication, history of suicidal behavior/gestures, mental health treatment history prior to and within the Bureau, and history of mental health deterioration during confinement in a restrictive housing setting. Note: PSR and PDS/BEMR review are mandatory in the preparation of this section.
■ Substance Abuse History. Briefly describes any substance abuse issues. ■ Psychosexual History. Briefly describes any deviant sexual interests, history of sexually
abusive behavior or victimization, and history of sexual crimes. ■ Criminal History. Describes the inmate’s criminal history, including juvenile and adult
crimes, escape attempts, and incident reports. Special attention is given to crimes, escape attempts, and incident reports contributing to the ADX referral. In addition, this section addresses the inmate’s view of his/her criminal activity, including the incident(s) associated with the referral. Note: It is not necessary to list every arrest, conviction, and incident report in this section. The evaluator may summarize information. For example, “Inmate Smith has received 37 incident reports in the past 3 years, the majority of which involve insolence and possession of intoxicants.” ■ Interview/Mental Status Examination. Summarizes findings from the clinical interview and mental status examination. If the inmate refuses to participate in the clinical interview

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and mental status examination, his/her refusal is noted in this section and all pertinent observations are recorded. ■ PAI Results. Summarizes PAI results. If the inmate refuses to complete the PAI, his/her refusal is noted in this section. ■ Case Formulation. Contains an analysis and synthesis of the data, which integrates psychological testing results with history, mental status, and clinical observations. Diagnostic impressions should be fully supported. If prior documentation of a mental illness exists, but is no longer valid, or if the evaluator believes it was never valid, this should be noted and supported by the evaluator. The case formulation also includes the evaluator’s conclusion whether any psychological factors would preclude the inmate’s placement at the ADX. ■ Diagnostic and Care Level Formulation. Lists any diagnoses and notes the inmate’s mental health care level.
The completed mental health evaluation report is entered in the PDS in the “Evaluations” section; the document is titled “ADX Referral Mental Health Evaluation.” The report is entered directly into PDS; it is not entered as a Word attachment. Psychological testing data are scanned into PDS as an attachment linked to the evaluation note. Once the report is entered into PDS, an email notification is sent to the Psychology Services Branch at BOP-RSD/Psychology SVCS~. The inmate’s name and register number are included in the subject line. The Psychology Services Branch reviews the report, psychological testing results, and the PDS records. Any concerns are discussed with the Chief Psychologist or Clinical Director at the inmate’s facility. If no concerns are noted, a concurrence email is sent to the Chief Psychologist and the Warden for inclusion in the referral packet.
c. SMU/ADX Exclusionary Criteria. Ordinarily, seriously mentally ill inmates (classified as CARE3-MH) are diverted from SMU or ADX placement and CARE4-MH inmates are not placed in these facilities. Inmates who are identified as seriously mentally ill will not be designated to or housed at the ADX or SMUs, except as noted below. Placement of a seriously mentally ill inmate in the ADX or a SMU will only occur if extraordinary security needs are identified that cannot be managed elsewhere. In such circumstances, an individualized mental health treatment plan will be developed commensurate with the inmate’s treatment needs. The decision to exclude a seriously mentally ill inmate from the ADX or a SMU is not contingent on his/her willingness to participate in a mental health treatment program. In addition, the Psychology Services Branch, in collaboration with the Chief Psychiatrist, Health Services Division, will generally recommend against SMU or ADX placement in the following instances:
■ A review of documentation suggests SMU or ADX placement would interfere with the inmate’s participation in necessary mental health treatment interventions.

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■ A review of documentation suggests the inmate’s mental health disorder or cognitive limitations make it unlikely he/she could successfully progress through the phases of the SMU or ADX.
■ A review of documentation suggests SMU or ADX placement is likely to exacerbate an inmate’s mental health condition.
Inmates identified as in need of inpatient psychiatric care (CARE4-MH) are not referred for placement in a SMU or the ADX. The appropriate placement for these inmates is a Psychiatric Referral Center.
If a seriously mentally ill inmate is determined to be unable to function in a less restrictive setting due to special safety and security needs, he/she will continue to receive mental health services commensurate with his treatment needs while in restrictive housing.
d. Extended Restrictive Housing Reviews. Inmates in restrictive housing placements for an extended period will receive regular mental health evaluations. These evaluations occur when the inmate is continuously housed:
■ In SHU for 6 months. ■ In the ADX for 12 months. ■ In a SMU for 18 months.
The mental health evaluation is completed by an institution psychologist and includes a review of the records, behavioral observations, clinical interview, and psychological testing if clinically indicated.
If the inmate refuses to cooperate with the interview or psychological testing, the evaluation proceeds and this refusal is noted in the report. The required protocols for the mental health evaluation reports are found in BP-A1057, Restrictive Housing Mental Health Evaluation – Initial Review, and BP-A1058, Restrictive Housing Mental Health Evaluation – Follow-Up Review; the results of these reports are documented in the Diagnostic and Care Level Formulation in PDS.
Updates are conducted for subsequent anniversaries; for example, an inmate continuously housed in SHU for 18 months would receive an evaluation when he/she has been housed in SHU for 6 months, with updates at 12 and 18 months.
The documentation associated with this review is entered in PDS under the note type “Restrictive Housing Mental Health Evaluation” and the results documented in PDS as an update of the

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Diagnostic and Care Level Formulation note. This information is entered in PDS within 14 days of the applicable due date.
Based on the findings of this evaluation, the Chief Psychologist, in collaboration with the CCARE Team (if applicable) may immediately initiate local actions to address identified mental health concerns.
On a monthly basis, the Psychology Services Branch reviews Restrictive Housing Mental Health Evaluations to determine if mental health concerns are appropriately addressed. In conjunction with these reviews, Branch staff consult as necessary with institution staff and with the Bureau’s Chief Psychiatrist. Branch staff also document concurrence with the evaluation findings or additional recommendations in PDS.
e. SHU/SMU/ADX Removal Criteria. If an inmate’s mental health appears to have deteriorated during restrictive housing placement, the Mental Health Treatment Coordinator actively works with the CCARE Team (if applicable) and the Psychology Services Branch (if applicable) to mitigate the impact or identify an alternative placement. As necessary, the Psychology Services Branch will consult with the Bureau’s Chief Psychiatrist. This deterioration may be identified through the mental health evaluation described above, or through more emergent factors; e.g., acute mental illness leading to the need for an emergency psychiatric transfer.
In addition, the Psychology Services Branch, in collaboration with the Chief Psychiatrist, Health Services Division, reviews inmates for possible removal from a SMU or the ADX in the following circumstances:
■ Any inmate who is transferred from a SMU or the ADX to an MRC on an emergency psychiatric transfer.
■ Any inmate who, upon arrival to a SMU or the ADX, is judged by the Chief Psychologist or Psychiatrist to have significant mental health issues or cognitive limitations that may make him/her inappropriate for this placement.
■ Any inmate who begins to experience symptoms of a serious mental illness following placement in a SMU or the ADX.
f. Discipline. An inmate’s mental health symptoms may contribute to institution rule infractions that could result in disciplinary sanctions, including SHU placement or the extension of SHU placement. In these cases it is the responsibility of the Mental Health Treatment Coordinator to provide consultation to the DHO to ensure the disciplinary process is applied appropriately to inmates with mental illness.

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The DHO refers the following incident reports to a psychologist for determination of competence and responsibility:
■ Any incident report received by a CARE3-MH or CARE4-MH inmate. ■ Any incident report received by a CARE2-MH inmate where there appears to be a mental
health concern. ■ Any incident reports for Code 228 involving self-harm. ■ Any incident report for Code 302, Misuse of Authorized Medication.
The Mental Health Treatment Coordinator indicates whether the inmate is competent or responsible and whether some types of sanctions are inappropriate based on his/her mental health needs. Sanctions that limit social support (e.g., SHU placement, loss of visits, or loss of phone calls) should be considered on a case-by-case basis and may not be appropriate for inmates with mental illness who use these supports as a component of their treatment or recovery.
9. MENTAL HEALTH TRAINING
Mental health training for all staff is included in Introduction to Correctional Techniques I and II and Annual Training. Mental health training is also provided on a quarterly basis to SHU officers.
Additional Mental Health Specialty Training will be made available in select CARE2-MH, CARE3-MH, CARE4-MH, and administrative institutions. To support this specialized training, adequate Psychology Services staffing must be in place. With adequate Psychology Services staffing and sufficient staff interest, this training is offered annually. This program supports the development of an optimal environment for effective treatment and care of offenders with mental illness, in which mental health professionals and other staff work collaboratively to support treatment. The training promotes early identification of mental health problems and more effective de-escalation and support when problems arise. While this training is not required to work a post on a mental health unit, it will be especially beneficial for staff who work these posts.
Staff may apply to take advantage of this additional Mental Health Specialty Training by submitting an application to the Human Resource Manager following the announcement of this training opportunity.
This additional Mental Health Specialty Training will include 24 hours of specialized mental health training, including suicide prevention, understanding mental illness, cultural diversity and sensitivity, psychiatric medications, behavior management principles, confidentiality, communication skills, de-escalation skills, and building collaborative relationships.

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10. MENTAL HEALTH COMPANION PROGRAM
Mental Health Companions are trained inmates who provide assistance and support to inmates with mental illness under the direction of the Psychology Services Department. Mental Health Companion Programs are initiated at the discretion of the Warden. They may take a variety of forms, including a cadre residing on a mental health treatment unit, supporting a drop-in center, or participating in individual pairings with inmates who need additional support.
The Mental Health Treatment Coordinator is responsible for the selection, training, assignment, and removal of individual companions. Inmates selected as companions are considered to be on an institution work assignment when they are on their scheduled shift and receive performance pay for time spent providing support to inmates with mental illness.
a. Selection of Inmate Mental Health Companions. Because of the sensitive nature of such assignments, the selection of Mental Health Companions requires considerable attention. They must be able to provide companionship and assistance to mentally ill inmates, protect their privacy, and report significant safety concerns and suicide warning signs to staff. In the Mental Health Treatment Coordinator’s judgment, they must be reliable individuals who have credibility with both staff and inmates and are able to perform their duties with minimal need for direct supervision. In addition, any inmate who is selected as a Mental Health Companion must not:
■ Have committed a 100-level prohibited act within the last three years. ■ Be in Financial Responsibility Program (FRP), GED, or Drug Ed Refuse status. ■ Have a history of sex offense against an adult.
As part of the selection process, the Mental Health Treatment Coordinator takes the following steps and documents the findings in PDS:
■ Interview the inmate. ■ Review the inmate’s disciplinary history. ■ Review the inmate’s PSR. ■ Review the inmate’s PDS documentation. ■ Consult with the Special Investigative Supervisor (SIS). ■ Consult with the inmate’s current work supervisor. ■ Consult with the Unit Team.
b. Training Mental Health Companions. Each companion receives at least four hours of initial suicide prevention training and an additional four hours of initial Mental Health Companion training before assuming Mental Health Companion duties. Each Companion also

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receives at least four hours of refresher training every six months. Each training session reviews policy requirements and instructs the inmates on their duties and responsibilities as a Mental Health Companion, including:
■ Basic information about mental illness. ■ Modeling and supporting recovery from mental illness. ■ Reducing stigma. ■ Communication skills. ■ Warning signs for suicide and other mental health problems that should be reported to staff
immediately.
An inmate may serve as both a Mental Health Companion and a Suicide Watch Companion. However, these are separate work assignments with different tasks and challenges. Therefore, some portions of training may be combined and others must be individualized. Mental Health Companions may participate in the initial Suicide Watch Inmate Companion training provided by the Suicide Prevention Coordinator to complete the suicide prevention portion of their initial training. In semi-annual training, the components common to both Suicide Watch Companions and Mental Health Companions may be covered in a combined two-hour training, if two additional hours of specialized training are provided to each group.
c. Meetings with Mental Health Treatment Coordinator. Mental Health Companions with an active work assignment meet at least weekly with the Mental Health Treatment Coordinator or designee to debrief their work, review procedures, discuss issues, and supplement training. This meeting may occur in a group setting.
d. Records. The Mental Health Treatment Coordinator maintains a record in PDS containing:
■ An agreement of understanding and expectations signed by each Companion. ■ Documentation of attendance and topics discussed at semi-annual trainings and weekly
meetings.
Verification of pay for those who have an assignment is also maintained.
e. Supervision of Inmate Mental Health Companions. Although Mental Health Companions are selected on the basis of their emotional stability and level of personal responsibility, they still require staff supervision while performing their duties. This supervision is provided by the Mental Health Treatment Coordinator during meetings. In support of the program, the Mental Health Treatment Coordinator provides staff with a roster of Companions (e.g., via TRUSCOPE, memorandum, or Sallyport).

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f. Removal. The Mental Health Treatment Coordinator or designee may remove any Inmate Mental Health Companion from the program at his/her discretion. Removal of a companion is documented in the PDS records.
11. PTP ACHIEVEMENT AWARDS
Mental Health PTPs offer achievement awards for inmates who participate in them, as defined in the Program Statement Psychology Treatment Programs. Achievement awards are offered to participants who demonstrate behaviors that reflect a commitment to treatment, conformity with program norms, progress on treatment plan goals, and behaviors that are expected in the general society.
a. Earning Achievement Awards. Inmates enrolled in PTPs must:
■ Be on time for all treatment activities. ■ Have no unexcused absences. ■ Not leave treatment activities without approval from the facilitator. ■ Dress appropriately. ■ Be an active participant in treatment activities. ■ Put forth positive efforts in accomplishing treatment plan goals, as determined by the
treatment provider. ■ Comply with education and FRP obligations. ■ Not receive a sanction for a sustained incident report.
b. Specific Achievement Awards
■ Limited financial awards. An inmate may earn a financial award to offset time lost from work. The amount is $50 for each phase of treatment, as defined in the Program Statement Psychology Treatment Programs. A financial award may be reduced by the treatment team based upon the inmate’s unsatisfactory participation and progress. However, a financial award is never to exceed $50.
■ Nearer release transfer. Formal consideration may be given for a nearer release transfer following successful program completion.
■ Local incentives. Institutions may offer incentives such as preferred living quarters, “early chow,” washer/dryer or exercise equipment on unit, etc.
■ Tangible incentives. With the Warden’s approval, tangible incentives may be given (e.g., books, t-shirts, notebooks, pencil pouches, mugs with program logo, food and hygiene items that are not sold in commissary).
■ Token economy. Mental Health PTPs may choose to run a token economy in which inmates are able to earn tangible incentives based on their participation.

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■ Transition ceremony/ritual. For the completion of a Mental Health PTP, institutions may offer a structured transition ceremony for the inmates.
12. MENTAL HEALTH TREATMENT ACHIEVEMENT AWARDS
Achievement awards are available to CARE3-MH inmates in all settings and CARE2MH/CARE3-MH inmates at the ADX. Achievement awards are offered to participants who demonstrate behaviors that reflect sustained efforts toward recovery, progress on treatment goals, and pro-social attitudes and behaviors.
a. Earning Achievement Awards. Inmates must:
■ Attend treatment activities on time. ■ Make positive efforts in accomplishing treatment plan goals, as determined by the treatment
provider. ■ Comply with education and FRP obligations. ■ Not receive a sanction for a sustained incident report.
b. Specific Achievement Awards
■ Local incentives. Institutions may offer incentives such as preferred living quarters, “early chow,” washer/dryer or exercise equipment on a unit where CARE3-MH inmates live, etc.
■ Tangible incentives. With the Warden’s approval, tangible incentives may be given, (e.g., books, t-shirts, notebooks, pencil pouches, mugs with program logo, food and hygiene items that are not sold in commissary).
■ Token economy. CARE3-Mental Health sites may choose to run a token economy in which inmates are able to earn tangible incentives based on their participation in treatment.
13. REDESIGNATIONS OF INMATES WITH MENTAL ILLNESS
Inmates with mental illness are transferred using specialized procedures to ensure they are housed in institutions that have resources to meet their needs.
a. CARE3-MH Inmates. Ordinarily, designations of CARE3-MH inmates are processed at the DSCC and reviewed by Psychology Services staff, who recommend a placement or placements that have appropriate resources to meet the inmate’s mental health needs.
CARE3-MH inmates are, on occasion, transferred via program completion transfers (325) in order to manage the CARE3-MH populations at sites with PTPs for the mentally ill, such as the Mental Health Step Down Program and STAGES Program.

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If a CARE3-MH inmate needs a transfer to a psychiatric referral center to manage acute psychiatric symptoms, the BP-A0770 (Medical/Surgical and Psychiatric Referral Request) is submitted to the Office of Medical Designations and Transfers (OMDT), Health Services Division. The mental health care level code is not changed to CARE4-MH by the sending institution.
Inmates classified as CARE3 in regard to both physical and mental health are referred for transfer and designation through OMDT.
b. Continuity of Care Between Bureau Institutions. To promote continuity of care for inmates with mental illness as they transfer, a Mental Health Transfer Summary must be completed in PDS every time a mentally ill (CARE2-MH, CARE3-MH, and CARE4-MH) inmate transfers within the Bureau – to an RRC, home confinement, or directly to the community. Pretrial facilities are exempt from this requirement if the inmate has been at the facility for less than six months.
■ Transfers between mainline institutions. A Mental Health Transfer Summary must be entered into PDS by the Mental Health Treatment Coordinator, or treating psychologist, for all CARE2-MH, CARE3-MH, and CARE4-MH inmates before submission to the DSCC for transfer.
■ Psychiatric transfers to MRCs. If an inmate is accepted for Emergency or Routine Psychiatric Transfer, the BP-A0770 is submitted to OMDT and entered into PDS; the Mental Health Transfer Summary is not required.
■ Psychiatric transfers from MRCs. When psychiatric treatment at an MRC is complete, Psychology staff complete a treatment summary and update the Diagnostic and Care Level Formulation in PDS.
14. REENTRY
The Bureau is committed to helping inmates prepare for reintegration into their communities by transferring inmates with mental illness through RRCs or home confinement placements. However, each inmate should first be reviewed for suitability for community placement and continuity of care needs.
Each Warden is strongly encouraged to approve inmates who successfully complete Mental Health PTPs for RRC/Home Confinement placement, consistent with the recommendations of PTP staff.
a. Assessment of Psychological Suitability. The CCARE team considers community placement for all inmates with mental illness on an individual basis. However, some inmates may not be suitable for community placements. Others may be suitable, but may not benefit from community placements due to their mental health conditions, or may need special

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consideration given to the type of community placement. The following conditions indicate an inmate is potentially unsuitable for RRC or home confinement placement:
■ Ongoing inpatient psychiatric treatment. ■ Uncontrolled mental health symptoms (e.g., psychosis with no insight, non-adherent with
medication). ■ Acute suicidal ideation with accompanying plans or recent attempts of moderate to high
lethality. ■ Inability to perform routine activities of daily living (bathing, dressing, eating, toileting,
general hygiene, and mobility).
Continuity of care is also a primary consideration in placement decisions. For inmates who are particularly vulnerable to environmental changes or stressors, the following situations indicate caution should be taken regarding the inmate’s placement and the inmate’s needs, strengths, and weaknesses should be considered as part of the CCARE team planning process:
■ There is no RRC in the inmate’s community, causing him/her to have to relocate for RRC placement and again to return to his/her community.
■ The inmate has a history of struggling to adapt to new environments. ■ Community supports or mental health services are limited in the area to which the inmate is
transferring.
At a minimum, the institution’s CCARE Team assesses all CARE2-MH, CARE3-MH, and CARE4-MH inmates for suitability at the time of the RRC Referral Process and when the Mental Health Transfer Summary is prepared (30 to 60 days before RRC placement). If there are any concerns regarding the inmate’s ability to be successful in a community placement, the team consults with CTS and Residential Reentry Management Branch staff.
Clinically manageable in the community is defined as having mental health symptoms that can be treated on an outpatient basis through pre-arranged linkages to family/community support, counseling, and psychiatric medications as needed.
When the CCARE Team determines the disposition for an inmate having one or more of the above-listed conditions, the team takes the actions below consistent with their decision:
■ Clinically manageable. If an inmate’s mental health needs are determined to be manageable in the community, the institution CCARE Team continues to monitor his/her status at intervals set by the team. If no complications arise, RRC or home confinement referral proceeds as planned by the Unit Team. If symptoms increase significantly, a reassessment occurs.
■ Clinically unmanageable. If an inmate’s mental health needs are determined to be unmanageable in the community, the Unit Manager will submit a request to Residential Reentry Management Branch staff to revoke or retard the RRC date. Clinically

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unmanageable in the community is defined as not having the requisite family/social network, health care facility, clinical or specialty services, or access to prescribed medications to maintain or improve an inmate’s mental health status as assessed at the time of release to RRC or home confinement placement. The institution CCARE Team continues to monitor the inmate’s mental health at intervals set by the team and changes his/her status if his/her mental health improves such that he/she has clinically manageable needs.
If the inmate is releasing to supervision under the United States Probation Office (USPO) or Court Services Offender Supervision Agency (CSOSA), and his/her mental health needs remain unmanageable in the community up to the point of release from custody, the treating psychologist must ensure contact is made with USPO or CSOSA. The treating psychologist ensures they are informed of the inmate’s status and provides the Mental Health Transfer Summary as documented in PDS. The treating psychologist then makes a referral to the social worker, who will develop a comprehensive release plan, as detailed below. If the inmate is releasing directly to the community with no supervision requirement, a Bureau social worker takes responsibility for coordinating a release plan, as detailed below.
If an inmate with mental illness is releasing from a CARE1-MH institution with no CCARE team, the Mental Health Treatment Coordinator coordinates with staff from other disciplines, as needed, and ensures continuity of care during the inmate’s release is consistent with the practices described in this policy.
b. Community Treatment Services. CTS staff determine which inmates with moderate, serious, or acute mental health needs releasing to community placements are appropriate for community treatment services by consulting with institution CCARE teams and running rosters of CARE2-MH, CARE3-MH, and CARE4-MH and Psychology Alert assignments. CTS staff review inmate PDS files, including the Mental Health Transfer Summary, which recommend follow-up treatment in the community. They arrange appropriate services to support inmates with mental illness who are placed in RRCs or in home confinement.
c. Social Workers. Social workers, in collaboration with the inmate and the institution CCARE Team, create comprehensive release plans for inmates who are releasing from Bureau custody with no community placement. The release plan identifies community treatment providers in the areas of psychiatry, mental health treatment, family counseling, substance abuse, and sex offender treatment, as recommended by the treating psychologist and as available in the community. Some institutions have locally based social workers; those that do not rely on Regional Social Workers. Social workers may consult with CTS staff regarding resources available in the community to which the inmate is releasing.
d. Continuity of Care to Community Placements. Procedures for transfer to community placements are detailed below.

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■ Transfers to RRCs and Home Confinement. When CARE2-MH, CARE3-MH, and CARE4-MH inmates are between 30 and 60 days from an RRC date, the Mental Health Transfer Summary is completed by the treating psychologist and entered in PDS. If CTS staff determine this form is not present in PDS 30 days prior to the RRC date, they notify the Chief Psychologist of the discrepancy. The Chief Psychologist ensures the summary is completed before the inmate’s transfer. If there is sufficient concern regarding the inmate’s mental health condition, CTS staff also consult with the Residential Reentry Manager (RRM), who may retard the RRC date until adequate information is available to ensure continuity of care.
■ Release to the Community with Supervision. When a CARE2-MH, CARE3-MH, or CARE4-MH inmate releases directly to the community under the supervision of the USPO or CSOSA, the treating psychologist completes the Mental Health Transfer Summary in PDS and ensures the supervising USPO or CSOSA receives a copy. The treating psychologist completes this summary 30-60 days before the inmate’s release. If the inmate requires mental health aftercare services, the treating psychologist will make a referral to the institution Social Worker or Regional Social Worker, who will assist with reentry planning.
■ Release to the Community without Supervision. When a CARE2-MH, CARE3-MH, or CARE4-MH inmate releases directly to the community with no supervision requirement, the treating psychologist completes the Mental Health Transfer Summary in PDS 30-60 days before the inmate’s release. If the inmate requests, the treating psychologist forwards it to a community treatment provider, following completion of the release of information. Such a request can also be made by the inmate following his/her release. If the inmate is on psychiatric medication and needs linkage to community resources, the psychologist should make a referral to the institution Social Worker or Regional Social Worker to enhance continuity of care.
e. Return to Custody Due to Mental Illness. Sometimes inmates experience mental health crises or behavioral problems in an RRC setting and are no longer able to be managed in the community. When this occurs:
■ The RRM staff must immediately notify and consult with CTS regarding any CARE2-MH, CARE3-MH, or CARE4-MH inmate or any CARE1-MH inmate exhibiting symptoms of mental illness, for whom the RRC placement or home confinement may be terminated.
■ CTS staff in turn consult with Psychology Services Branch mental health staff and document the consultation in PDS.
■ Psychology Services Branch mental health staff adjust the care level assignment, if necessary, by entering a mental health assignment that better approximates the inmate’s need for services.
■ Psychology Services Branch mental health staff make a recommendation regarding whether the inmate should be transferred to an MRC for treatment of acute mental illness, returned to

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a mainline institution, continued in the current placement with additional supports, or housed in a contract facility until the end of his/her sentence. ■ The RRM staff work with the OMDT or the DSCC to identify and return the inmate to the parent institution or, if necessary, identify an alternate institution. If the inmate needs emergency psychiatric care at a Psychiatric Referral Center, RRM staff prepare the BPA0770 in consultation with CTS and the Psychology Services Branch.
If the inmate is returned to an institution, release planning begins again immediately upon his/her arrival.
15. AGENCY ACA ACCREDITATION PROVISIONS
■ American Correctional Association Standards for Adult Correctional Institutions, 4th Edition: 4-4142, 4-4143, 4-4144, 4-4305, 4-4368, 4-4370, 4-4371, 4-4372, 4-4373, 4-4374, 4-4399, 4-4429, 4-4429-1.
■ American Correctional Association Performance Based Standards for Adult Local Detention Facilities, 4th Edition: 4-ALDF-2A-32, 4-ALDF-4C-8, 4-ALDF-4C-19, 4-ALDF-4C-27, 4ALDF-4C-28, 4-ALDF-4C-29, 4-ALDF-4C-30, 4-ALDF-4C-31, 4-ALDF-4C-32, 4-ALDF4C-34, 4-ALDF-4C-40, 4-ALDF-6B-05, 4-ALDF-6B-06, 4-ALDF-6B-07, 4-ALDF-6B-08.
■ American Correctional Association Standards for Administration of Correctional Agencies, 2nd Edition: 2-CO-4B-04.
REFERENCES
Program Statements P5070.12 Forensic and Other Mental Health Evaluations (4/16/08) P5100.08 Inmate Security Designation and Custody Classification (9/12/06) P5212.07 Control Unit Programs (2/20/01) P5270.09 Inmate Discipline Program (7/8/11) P5270.10 Special Housing Units (7/29/11) P5290.14 Admission and Orientation Program (4/3/03) P5310.12 Psychology Services Manual (8/13/93) P5324.08 Suicide Prevention Program (3/15/07) P5330.11 Psychology Treatment Programs (3/16/09) P5370.11 Inmate Recreation Programs (6/25/08) P6031.03 Patient Care (8/23/12) P6340.04 Psychiatric Services (1/15/05)
Other References President’s New Freedom Commission on Mental Health, 2003 National Consensus Statement on Mental Health, 2004 Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition, 2013

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BOP Forms BP-A0770 BP-A1055 BP-A1056 BP-A1057 BP-A1058

Medical/Surgical and Psychiatric Referral Request Notice of Psychological Evaluation – ADX Control Unit Notice of Psychological Evaluation – ADX General Population Restrictive Housing Mental Health Evaluation – Initial Review Restrictive Housing Mental Health Evaluation – Follow-Up Review

Records Retention Requirements Requirements and retention guidance for records and information applicable to this program are available in the Records and Information Disposition Schedule (RIDS) on Sallyport.

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EXHIBIT 3

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U.S. Department of Justice Federal Bureau of Prisons United States Penitentiary, Administrative Maximum Florence, Colorado

INSTITUTION SUPPLEMENT

OPI:

Psychology Services/Health Services

NUMBER: FLM 5310.16A

DATE:

July __, 2016

Treatment and Care of Inmates with Mental Illness

Approved:

/s/ J. Fox, Complex Warden FCC Florence

I. PURPOSE AND SCOPE

This Institution Supplement provides institutional guidelines for the treatment and care of inmates with mental illness at the United States Penitentiary, Administrative Maximum (ADX), Florence, Colorado, consistent with the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness.

Adhering to the guidelines within this Institution Supplement ensures that the inmates with mental illness housed at the ADX are identified and receive treatment, with the goal of reducing or eliminating the frequency and severity of symptoms and associated negative outcomes of mental illness.

II. PROGRAM OBJECTIVES

■ To screen and classify inmates when they arrive at the ADX to identify those with mental illness, provide accurate diagnoses, determine the severity of mental illness, and assess suicide risk.
■ To exclude inmates with serious mental illness, as defined in the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness, from the ADX, except when the inmate has extraordinary security needs that cannot be managed elsewhere, and when extraordinary security needs exist, to provide treatment and care commensurate with their mental health needs.

FLM 5310.16A

Treatment and Care of Inmates with Mental Illness

Page 1

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■ To provide reasonable access to mental health assessment for all inmates at the ADX.
■ To promptly identify any inmate who develops signs or symptoms of possible mental illness while incarcerated at the ADX, and to permit timely and proper diagnosis, care, and treatment.
■ To provide reasonable access to clinically appropriate mental health treatment for all inmates at ADX.
■ To support inmates with mental illness through creation of wellness programs and recreational activities, specialized staff training, and care coordination teams.
III. REFERENCES
A. Program Statements
P4200.10, Facilities Operations Manual (1/24/06) P5070.12, Forensic and Other Mental Health Evaluations (4/16/08) P5100.08, Inmate Security Designation and Custody Classification
(9/12/06) P5270.09, Inmate Discipline Program (7/8/11) P5290.14, Admission and Orientation Program (4/3/03) P5310.12, Psychology Services Manual (8/13/93) P5310.16, Treatment and Care of Inmates with Mental Illness (5/1/14) P5324.08, Suicide Prevention Program (3/15/07) P5330.11, Psychology Treatment Programs (3/16/09) P5370.11, Inmate Recreation Programs (6/25/08) P5566.06, Use of Force and Application of Restraints (11/30/05) P6031.04, Patient Care (6/3/14) P6340.04, Psychiatric Services (1/15/05)
B. Institutional Supplements
FLM 5324.08, Suicide Prevention Program (10/31/14)
C. Bureau Forms
BP-A0770, Medical/Surgical and Psychiatric Referral Request BP-A1057, Restrictive Housing Mental Health Evaluation – Initial Review BP-A1058, Restrictive Housing Mental Health Evaluation – Follow-Up
Review
D. Agency ACA Accreditation Provisions
American Correctional Association Standards for Adult Correctional Institutions, 4th Edition: 4-4142, 4-4143, 4-4144, 4-4305, 4-4368, 4-4370, 4-4371, 4-4372, 4-4373, 4-4374, 4-4399, 4-4429, 4-4429-1.

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American Correctional Association Performance Based Standards for Adult Local Detention Facilities, 4th Edition: 4-ALDF-2A-32, 4-ALDF-4C8, 4-ALDF-4C-19, 4-ALDF-4C-27, 4-ALDF-4C-28, 4-ALDF-4C-29, 4ALDF-4C-30, 4-ALDF-4C-31, 4-ALDF-4C-32, 4-ALDF-4C-34, 4-ALDF-4C40, 4-ALDF-6B-05, 4-ALDF-6B-06, 4-ALDF-6B-07, 4-ALDF-6B-08.

American Correctional Association Standards for Administration of Correctional Agencies, 2nd Edition: 2-CO-4B-04.

IV. DEFINITIONS

A. The term “Bureau” means the Federal Bureau of Prisons.

B. The term “ADX” means the United States Penitentiary, Administrative Maximum, Florence, Colorado.

C. The term “USP Florence” means the United States Penitentiary, High Security, Florence, Colorado.

D. The term “FCC Florence” means the Federal Correctional Complex, Florence, Colorado.

E. The term “mental illness” is defined in the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness.

F. The term “serious mental illness” is defined in the Bureau’s current Program Statement regarding Treatment and Care of Inmates with Mental Illness. Consistent with the Program Statement, serious mental illness generally falls into one of two categories:

1.

The inmate’s diagnosis is automatically considered a

SMI, regardless of assigned care level, when a Bureau

clinician currently diagnoses the inmate with a schizophrenia

spectrum or other psychotic disorder, or with bipolar or

related disorder. If the inmate has a current diagnosis of

major depressive disorder by a Bureau clinician that is

categorized severe, that is non-responsive to treatment, or

that results in the inmate being classified as CARE3-MH, the

inmate will also automatically be considered to have a SMI..

2.

The inmate’s current diagnosis, when combined with

the effect the illness has on the inmate’s functioning, may

rise to the level of SMI. A current diagnosis of the following

may qualify as a serious mental illness when the illness is

severe, persistent, and disabling to the inmate: an anxiety

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disorder, obsessive-compulsive and related disorders, trauma and stressor-related disorders, intellectual disabilities and autism spectrum disorders, major neurocognitive disorders, or personality disorders. An inmate who is assigned a care level of CARE3-MH will generally be considered to have a SMI.
G. The Mental Health Care Levels are defined in the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness. These levels apply to inmates at the ADX.
H. “Secure STAGES” means a residential, unit-based Psychology Treatment Program for inmates with Borderline Personality Disorder or Other Specified Personality Disorders, as diagnosed by the Bureau, who have a chronic history of self-injurious behavior or do not function effectively in a prison setting, which is currently operating at USP Florence.
V. RESPONSIBILITIES
A. Warden. The Warden is responsible for ensuring relevant mental health program statements and procedures are implemented at the ADX.
B. Chief Psychologist. The Chief Psychologist implements this Institution Supplement and the duties outlined in the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness.
C. Mental Health Treatment Coordinator. As outlined in the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness, the Chief Psychologist may designate a Mental Health Treatment Coordinator, who is a licensed, doctoral-level ADX Psychologist, to oversee the management, treatment, and care of inmates with mental illness and to ensure all provisions of this Institution Supplement and the national Program Statement are implemented. Regular interdisciplinary communication is maintained between the Mental Health Treatment Coordinator and Health Services staff, including staff and contract psychiatrists and psychiatric mid-level providers, to optimize treatment efficacy. The Chief Psychologist may choose to serve as the Mental Health Treatment Coordinator rather than designating another psychologist to serve in this role.
D. Psychiatrist/Psychiatric Mid-Level Provider/Psychiatric Nurse. Health Services organizes, conducts, and administers psychiatric

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services. The Psychiatrist/Psychiatric Mid-Level Provider/Psychiatric Nurse accepts referrals through the Bureau Electronic Medical Record/Psychology Data System (BEMR/PDS) for inmates in need of psychiatric assessments and/or services, including medication prescription and management. When inperson psychiatric services are not available at ADX, psychiatric services may be provided to the ADX inmates by telepsychiatry – i.e., by video conferencing. Telepsychiatry services will be made available to the ADX inmates as needed during any period when inperson psychiatry services are unavailable at the ADX. Telepsychiatry will be provided in accordance with the Bureau’s telepsychiatry guidelines, and the telepsychiatrist, to the extent possible, will participate in the Care Coordination and Reentry (CCARE) team. Attention will be paid to ensuring continuity of telepsychiatry care providers and a telepsychiatrist will conduct intermittent on-site visits to the ADX to see inmates in person.[A1] E. Health Services Administrator. If contract psychiatric services are used, the Health Services Administrator is responsible for contract development and oversight with input from the Mental Health Treatment Coordinator.
F. Clinical Director. The Clinical Director will ensure the general medical needs of each inmate are addressed and that Health Services staff conducting rounds, sick call, and clinics has received the necessary training to recognize signs and symptoms of mental illness and understand the referral process to ensure that mental health needs are promptly addressed.
G. Care Coordination and Reentry (CCARE) Team. The CCARE Team is a multidisciplinary team that uses a holistic approach to ensure that critical aspects of care for inmates with mental illness are considered and integrated. The CCARE Team is responsible for identifying potential concerns affecting inmates with mental illness.
H. All Staff. All staff members are responsible for detecting and reporting the signs or symptoms of an inmate’s possible mental illness. If a staff member suspects an inmate’s behavior indicates active symptoms of psychological distress, the staff member will promptly contact one of the following for assistance in obtaining a mental health evaluation of the inmate: the Chief Psychologist; any ADX Psychologist, Psychiatrist, contract Psychiatrist, Psychiatric Mid-Level Provider; or a Correctional Services Supervisor. If the Correctional Services Supervisor is the initial contact, he or she will promptly contact the Chief Psychologist or on-call mental health care provider.

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VI. MENTAL HEALTH STAFFING: Psychology Services at the ADX ordinarily includes at least four full-time, doctoral-level psychologists and a psychology technician, who are supervised by the Chief Psychologist and who are assigned specifically to the ADX on a full-time basis. Health Services staffing for the complex also includes a full-time staff, consultant, or contract psychiatrist and a social worker, and may include a psychiatric mid-level provider, such as a nurse practitioner or psychiatric nurse. Adequate Health Services staff will be available to meet the mental health mission. Emergency mental health services will be provided by an on-call psychologist or psychiatrist assigned to FCC Florence when the ADX psychologists and psychiatrist are not on duty. Staffing will be reviewed annually by Central Office psychology and health services administrators, and will include an analysis of data concerning current mental health service demands and demands for the past year.
VII. ADX EXCLUSION CRITERIA
A. Consistent with the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness, and this supplement, ordinarily, inmates diagnosed with a serious mental illness are to be diverted or removed from the ADX. Placement or continued housing of an inmate with serious mental illness at the ADX will only occur if extraordinary security needs are identified that cannot be managed elsewhere.
B. Consistent with the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness, and this supplement, inmates classified as CARE4-MH are not to be placed at and will be removed from the ADX as provided in Section X, below.
VIII. TEAM APPROACH TO CARE: Consistent with the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness, the ADX’s multidisciplinary CCARE Team uses a holistic approach to ensure that all critical aspects of care for inmates with mental illness are considered. The ADX CCARE team will:
A. Meet weekly to review cases and identify strategies to mitigate the potentially negative impact of the correctional environment on inmates with mental illness. Every inmate at the ADX will be reviewed at least once a month. The CCARE team will also review all inmates with a serious mental illness awaiting transfer to determine what care the inmate needs while awaiting transfer.
B. Review and update inmates’ individual treatment plans. All inmate

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plans are reviewed by the treatment team at the six-month or annual treatment plan review. In conjunction with the review, the treating clinician will interview the inmate and present the case to the team. The CCARE team, in collaboration with the treating clinician, will identify any proposed changes to the treatment plan and the treating clinician will discuss this with the inmate.
C. Review and resolve discrepancies between Health Services and Psychology Services; update diagnoses as necessary; discuss and review medications to ensure they are consistent with diagnoses.
D. Ordinarily consists of the following staff:
■ Chief Psychologist ■ Provider(s) of Psychiatric Services, Assistant Health
Services Administrator/Supervisory Nurse, and/or Psychiatric Nurse ■ ADX Psychologists ■ Chief Pharmacist/Clinical Pharmacist ■ Social Worker ■ ADX Unit Managers ■ Correctional Services Supervisor
In addition, the Mental Health Treatment Coordinator may invite the following staff, and others as deemed appropriate, to attend CCARE Team meetings:
■ Warden ■ Associate Wardens ■ Attorney Advisor ■ Clinical Director ■ Supervisor of Recreation ■ Supervisory Chaplain ■ Staff members involved in pre-release planning for the ADX
inmates with mental illness who are scheduled for release within the following 12 months.
Community Treatment Services (CTS) staff, Discipline Hearing Officers (DHO), department heads, and teachers may be included under special circumstances, as explained in the Bureau’s current Program Statement concerning the Treatment and Care of Inmates with Mental Illness.
E. Prior to this meeting, the Assistant Health Services Administrator (AHSA)/Supervisory Nurse will ensure proper documentation of medical observations is placed in BEMR by medical staff. The AHSA/Supervisory Nurse will provide updates to the Mental Health

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Treatment Coordinator on future medical appointments and medical concerns. The pharmacist will provide information regarding medication compliance and any medication concerns.

IX. PROCEDURES FOR ASSESSMENT, IDENTIFICATION, & REFERRAL: Psychology Services and Health Services ensure every ADX inmate with a clinically identified need for psychological treatment has access to mental health care. The inmates at the ADX will undergo appropriate screening, assessment, and referral to identify and address their mental health, substance abuse, and other behavioral health needs as follows:

A. Intake Mental Health Assessment/Evaluation. Mental health assessment for inmates at the ADX will consist of the following:

1. Health Services Mental Health Intake Assessment. Upon arrival, Health Services clinical staff will conduct an initial screening for physical and mental health concerns.

a. The mental health intake screening/assessment seeks to identify mental health care problems and needs which include, but is not limited to presence of psychosis, hallucinations, suicidality, history of selfinjury, mood disturbance, sexual victimization, and psychotropic medication use.

b. The Health Services staff member who conducts the intake screening/assessment will review the inmate’s BEMR record to determine whether the inmate has a current prescription for psychotropic medication and, if so, will promptly take all steps necessary to ensure the inmate receives all necessary medication on a timely basis following arrival, at least until the inmate is seen by a Psychiatrist/Psychiatric Mid-Level Provider/Psychiatric Nurse.

c. In addition to the questions the Health Services staff member who conducts the intake screening/assessment must ask, the Health Services staff member will ask the following questions:

i.

Have you ever taken any psychiatric

medications?

ii.

Have you ever been diagnosed with a mental

illness?

iii.

Have you ever been in a psychiatric hospital?

iv.

Have you ever received mental health

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services?

v.

Have you ever received mental health

treatment from a psychiatrist, psychologist, or

other mental health provider?

vi.

Do you hear voices no one else can hear?

vii.

Have you ever tried to harm or kill yourself?

viii.

Are you thinking about hurting yourself now?

The Health Services staff member will document the responses to the questions in BEMR and immediately advise Psychology Services, AHSA/Supervisory Nurse, and the Psychiatrist/Psychiatric Mid-Level Provider/Psychiatric Nurse of any concerns.

d. The Health Services staff member who conducts the health services intake screening/assessment will document their findings in BEMR/PDS and immediately advise Psychology Services, AHSA/Supervisory Nurse, and the Psychiatrist/Psychiatric Mid-Level Provider/Psychiatric Nurse of any concerns.

e. Health Services staff will also complete a written and verbal referral to the Chief Psychologist or designee and to the complex Psychiatrist/Psychiatric Mid-Level Provider/Psychiatric Nurse as necessary.

2. Intake Psychological Evaluation. An Intake Psychological Evaluation occurs for all inmates arriving at ADX Florence and is documented in BEMR/PDS, as follows.

a. An intake psychological evaluation of each inmate will occur within seven business days of his arrival at the facility.

b. The psychologist completing the clinical interview of the inmate is responsible for reviewing the inmate’s completed Psychological Services Intake Questionnaire (PSIQ), all psychological evaluations conducted in connection with the ADX referral process, the inmate’s BEMR/PDS records, SENTRY data, and Pre-Sentence Reports (PSR).

c. The psychologist will conduct a clinical interview in a private setting. Based on information gathered through this process, the evaluating psychologist will

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validate the accuracy of the inmate’s assigned mental health care level.
d. If the care level is CARE2-MH, CARE3-MH, or CARE4-MH, a Diagnostic and Care Level Formulation note will be entered into PDS, and the case will be reviewed with the Chief Psychologist and the ADX psychiatrist or psychiatric services provider to determine if a transfer is indicated. (See transfer procedures noted below).
If the care level is CARE4-MH, the inmate will be immediately evaluated for a transfer to a medical center. I[A2] e. In addition, Psychology Services staff will promptly
notify Health Services staff of any relevant concerns, e.g., a recommendation for psychiatric consultation and/or medication consultation.
f. If the inmate has a current prescription for psychotropic medication, the psychologist will ensure Health Services staff are aware of the current prescription to ensure the inmate receives all such medication until a psychiatric consultation occurs.
B. Assignment and Change of Mental Health Care Level. As outlined in the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness, ADX Psychologists and Psychiatrists can determine and assign a current mental health care level following a review of records and a face-toface clinical interview.
1. If the inmate does not consent to a face-to-face interview, the clinician may proceed based on observations and a thorough record review.
2. All current mental illness diagnoses, including personality disorders and intellectual disabilities, and any past significant diagnoses will be identified in a Diagnostic and Care Level Formulation note in BEMR/PDS.
3. The cumulative impact of an inmate’s diagnosed disorders on current functioning is taken into account when assigning a mental health care level.
4. Mental health care levels are entered into SENTRY by

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Psychology Services. If a psychiatrist assigns a current mental health care level, the psychiatrist will promptly notify the Mental Health Treatment Coordinator so it is entered into SENTRY. The Assistant Health Services Administrator (AHSA)/Supervisory Nurse will ensure proper documentation of this determination in BEMR.
5. If a psychologist and/or psychiatrist determine that a reduction in the mental health care level for an inmate is warranted, the determination will be reviewed by the Chief Psychologist or Deputy Chief Psychologist, and the Psychology Services Branch before the reduction is finalized. The Chief Psychologist or Deputy Chief Psychologist will enter a consultation note in BEMR/PDS to document that consultation with the Psychology Services Branch occurred[A3].
C. ADX Mental Health Rounds.
1. Psychology Rounds
a. A psychologist will make weekly rounds in each of the ADX housing units to identify and address mental health and behavioral concerns as follows.
b. Rounds will routinely be conducted during daytime or evening hours when inmates are most likely to be awake, and attempts will be made to conduct them on a regular schedule.
c. For inmates assigned a CARE2-MH or CARE3-MH levels, inmates who have been referred for mental health services, or inmates who demonstrate changes in functioning, in the absence of unique, documented security concerns, such rounds will consist of face-toface interaction with the outer cell door opened and a correctional staff member with a baton present, if required.
d. During rounds, the psychologist will look in every cell, speak with all inmates who indicate a desire to talk, and accept requests/referrals for mental health services.
e. A written log will be maintained of all rounds, identifying the provider who conducted the rounds,

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when the rounds were completed, and how long the provider spent in the unit and on each range.

2. Health Services Rounds. Health Services providers will be sensitive to identifying mental health symptoms and concerns during their daily rounds. Pertinent clinical information will be identified in a clinical care note in BEMR/PDS and shared verbally with psychology and psychiatry, as clinically indicated.

D. ADX 30-Day Mental Health Reviews.

1. A psychologist will complete a psychological review for each ADX inmate at 30-day intervals, which will be documented in BEMR/PDS.

2. For inmates assigned CARE2-MH and CARE3-MH levels, inmates who have been referred for mental health services, or inmates who demonstrate changes in functioning, in the absence of unique, documented security concerns, this faceto-face interaction will take place with the outer cell door opened and a correctional staff member with a baton present, if required. If clinically indicated, the inmate will be removed from the cell to be interviewed in a private interview space.

3. The BEMR/PDS entries will be individualized and based on face-to-face interaction with each inmate. The entries will include a description of:

a.

The inmate’s functioning since the last review;

b.

Mental health services received since the last review;

c.

The inmate’s cell sanitation;

d.

The inmate’s personal hygiene;

e.

The inmate’s participation in regular recreation and

exercise during the last month;

f.

The inmate’s medical issues during the last month to

the extent they impact mental health;

g.

The inmate’s discipline record and participation in

programming during the past month; and

h.

Review of the inmate’s current mental health care

level.

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4. For example, if the inmate has been assessed for risk of suicide, has engaged in disruptive behaviors, or has engaged in a hunger strike since the last review, this will be discussed in the 30-day review.
5. The Assistant Health Services Administrator (AHSA)/Supervisory Nurse will ensure proper documentation of medical observations is placed in BEMR by medical staff. The AHSA/Supervisory Nurse will provide updates to the Mental Health Treatment Coordinator on future medical appointments and medical concerns. The pharmacist will provide information regarding medication compliance and any medication concerns.
E. Extended Restrictive Housing Reviews. As outlined in Program Statement 5310.16, Treatment and Care of Inmates with Mental Illness, inmates will receive regular mental health evaluation when they have been continuously housed:
1. In the SHU at the ADX for 6 months, or
2. In the ADX for 12 months.
Updates will be conducted for subsequent anniversaries. For example: An inmate has been continuously housed in the ADX for 48 months, having arrived at the ADX on 1/1/2001. During those 48 months, he was continuously housed in the SHU at the ADX for 18 months (2/1/2001 – 8/1/2002). The inmate would receive the evaluation associated with him being continuously housed in SHU for 6 months (8/1/2001), with an update at 12 months (2/1/2002) and 18 months (8/1/2002). The inmate would also receive the evaluation associated with him being continuously housed in the ADX for 12 months (1/1/2002), with updates at 24 months (1/1/2003), 36 months (1/1/2004), and 48 months (1/1/2005).
F. Referrals for Treatment. Inmates will be encouraged to make self-referrals and referrals on behalf of other inmates to staff, if an inmate believes he or another inmate is in need of mental health services. Referrals may be made verbally or in writing. All inmates will have reasonable access to “Inmate Request to a Staff Member” forms for such requests/referrals, although requests for mental health services will be accepted in any format. However, inmates will be encouraged to make non-emergent requests for mental health services in writing and emergent requests verbally. Any ADX staff member may also make a referral for mental health services for an inmate by communicating the request to Psychology

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Services. Referrals may also be made by an inmate’s family members, friends or attorneys.[A4]
I
G. Procedures for Heightened Review of Requests and Referrals for Mental Health Services. The following procedures are designed to enhance the review of requests and referrals for mental health services and should be read in conjunction with the paragraphs above and applicable Bureau Program Statements and ADX Institutional Supplements concerning the treatment and care of inmates with mental illness:
1. When any request or referral for mental health services relating to an ADX inmate is received by the Psychology Services Department, the staff in Psychology will evaluate the referral, or request, the day it is received and classify it as emergent, urgent, or routine.
2. Emergent requests will be responded to as soon as possible and no more than 4 hours, unless an operational emergency precludes a timely response. [A5]
3. Urgent requests will be responded to as soon as possible and no more than 24 hours, unless an operational emergency precludes a timely response.
4. Routine requests will ordinarily be processed within 3 business days, but no more than 10 business days, after a request or referral is received by the Psychology Services Department.
5. The Chief Psychologist, Deputy Chief Psychologist, or designee will review the request or referral and assign it to the appropriate Psychologist or another qualified member of the Psychology staff for timely resolution. Once achieved, the result will be documented in PDS/BEMR.
6. Upon receipt, each written request or referral will be datestamped to reflect the date received by the Psychology Services Department. Requests and referrals received electronically will be printed and handled in the same manner as other requests and referrals.
7. Each request/referral will be scanned into PDS/BEMR under the appropriate tab and identified as needing review by the Chief Psychologist, Deputy Chief Psychologist, or designee.

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8. If the request or referral raises medication issues or a medical issue, the correspondence will also be identified as needing review by the Assistant Health Services Administrator, Clinical Director, Psychiatrist, Mid-Level Provider, or Pharmacist.
9. The Psychology Services Department will generate quarterly and annual reports for review by the Warden, Chief Psychologist, Psychiatrist, Mid-Level Provider, and Psychology Services Administrator. The reports will be reviewed at least twice per year to facilitate the quality improvement process.
X. ADX REMOVAL CRITERIA.
A. The Chief Psychologist or ADX psychiatric services provider will promptly contact the Psychology Services Branch and the Bureau’s Chief Psychiatrist to discuss:
1. Any inmate who is identified to be in need of transfer from the ADX to a medical referral center (“MRC”) as an emergency psychiatric transfer.
2. [A6]Any inmate who, upon arrival to the ADX, is judged by the 1 Chief Psychologist or psychiatric services provider to have serious mental illness or significant cognitive limitations that make placement at the ADX inappropriate.
3. Any inmate who develops onset or re-emergence of symptoms of serious mental illness while at the ADX.
B. The inmate’s deterioration may be identified through any routine mental health evaluation described above or may become evident through identification of symptoms of serious mental illness indicating the need for an emergency psychiatric transfer.
C. If an inmate’s mental health appears to have deteriorated during placement at the ADX such that the inmate is a CARE4-MH, or the CCARE team determines the inmate needs inpatient hospitalization, the Mental Health Treatment Coordinator will work actively with the CCARE Team, the Psychology Services Branch, and the Bureau’s Chief Psychiatrist to identify an alternative, appropriate placement. The BP-A0770 (Medical/Surgical and Psychiatric Referral Request) will be submitted to the Office of Medical Designations and Transfers (OMDT), Health Services Division. If an inmate who is approved for an emergency transfer to a MRC has not been

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transferred within 72 hours of the approval, the Warden will be notified to expedite the transfer. If the inmate has not been transferred within 7 days of the approval, the Assistant Director of the Health Services Division and the North Central Regional Director will be notified to take appropriate action.

D. If, while housed at the ADX, an inmate is diagnosed with serious mental illness (as defined above) and it is determined the inmate does not need inpatient hospitalization, the Mental Health Treatment Coordinator will convene a multi-discipline committee to review the inmate to determine whether extraordinary security needs exist that cannot be managed elsewhere, requiring the inmate to remain at the ADX, as follows:

1. The composition of the committee will ordinarily consist of the Warden, Associate Wardens, Captain, Special Investigative Agent, Case Management Coordinator, Unit Manager, Psychology, provider(s) of Psychiatric Services, Assistant Health Services Administrator/Supervisory Nurse, Psychiatric Nurse, and Supervisory Attorney.

2. The determinations will be made on a case-by-case basis.

3. The review by the committee is not a hearing. The inmate is not entitled to notice, to be present, to have counsel, to present evidence, or to call witnesses.

4. The final determination regarding extraordinary security needs is made by the Warden.

5. Notification

a.

Each inmate will receive written notification of the

decision from the appropriate Associate Warden.

b.

If it is determined the inmate has extraordinary

security needs that cannot be managed elsewhere,

the Associate Warden’s written notification will include

the following:

i.

The reason(s) for the determination, unless it is

determined the release of this information

could pose a threat to individual safety or

institutional security, in which case that limited

information may be withheld.

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ii.

An explanation that the inmate will receive

mental health services consistent with his

mental health care level, and that his security

needs do not impact his diagnosis, mental

health care level, or the provision of care-level

appropriate services.

iii.

Notice that the inmate may appeal the decision

through the Federal Bureau of Prisons’

Administrative Remedy Program.

c.

If it is determined the release of the information could

pose a threat to individual safety or institutional

security, the determination will be documented in a

memorandum placed in the FOI exempt section of the

inmate’s Central File specifying the Warden’s reasons

that the inmate cannot, despite his serious mental

illness, be removed from the ADX due to

extraordinary security needs.

d.

If it is determined the inmate has extraordinary

security needs that cannot be managed elsewhere, a

copy of the notification will be forwarded to the

Regional Director, North Central Region, and if the

inmate is in the Control Unit, to the Assistant Director,

Correctional Programs Division.

e.

On an annual basis, the Warden will notify the

Regional Director, North Central Region, and if

applicable, the Assistant Director, Correctional

Programs Division, of the inmates with serious mental

illness who continue to be housed at the ADX due to

extraordinary security needs that cannot be managed

elsewhere.

f.

The determination that an inmate has extraordinary

security needs that cannot be managed elsewhere

does not preclude the Warden from exercising his/her

discretion to reach a different conclusion at a future

review.

g.

The inmate will be reviewed at least every six months

to determine if the extraordinary security needs that

cannot be managed elsewhere still exist. The Chief

Psychologist is responsible for convening the

committee to review these determinations.

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E. The inmates who are newly identified as suffering from a serious mental illness and who do not have extraordinary security needs will be referred to an appropriate treatment program or other setting outside the ADX. The Mental Health Treatment Coordinator will work actively with the CCARE Team, the Psychology Services Branch, and the Bureau’s Chief Psychiatrist to identify an alternative, appropriate placement. The Mental Health Treatment Coordinator, in collaboration with the Chief Psychologist or Midlevel Psychiatric Provider, will initiate the following transfer procedures:
1. An ADX transfer is submitted to the Psychology Services Branch and the Designations and Sentence Computation Center.
2. Efforts will be made to transfer the inmate within 30 days of the determination of a need for transfer.
3. The Warden will monitor the transfer process, and if transfer has not been accomplished within 30 days, the Warden will make efforts as to expedite the process, which will include notifying the Assistant Director, Reentry Services Division; Assistant Director Health Services Division; and Regional Director, North Central Region, to take appropriate action.
While awaiting transfer, care that is consistent with the inmate’s identified care level and needs will be provided by the ADX staff.
XI. MENTAL HEALTH SERVICES: An inmate’s current housing status does not impact his diagnosis, mental health care level, or the provision of carelevel appropriate services. Mental health services may include, but is not limited to, any of the following:
A. Individual Counseling/Therapy. Individual counseling/therapy is provided in a confidential setting by a qualified mental health provider as clinically indicated or outlined in a treatment plan, as follows.
1. Inmates may submit a request to Psychology Services for individual counseling/therapy, or Psychology Services may recommend individual counseling/therapy to an inmate. Upon mutual agreement to begin individual counseling/therapy, the inmate’s treating clinician will schedule the inmate for treatment sessions according to the inmate’s treatment plan.

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2. Adequate escort staff will be assigned to provide timely and secure escorts for such purposes, and Psychology Services and Health Services will coordinate with Correctional Services regarding the scheduling of escorts.
3. Correctional Services staff will provide escort services within the housing units, upon request, to permit Psychology Services and Health Services staff to meet with the inmate in a confidential setting.
B. Group Treatment. Therapeutic groups are preferably evidencebased, and use an established Bureau protocol when available, as follows:
1. They are facilitated by a doctoral-level psychologist or another designated mental health services provider (such an art therapist, recreation therapist, vocational rehabilitation specialist, drug treatment specialist, or health services social worker).
2. To ensure the safety of staff and inmates, group treatment is offered in settings appropriate to the participants’ security needs. Recommendations for group treatment will be noted in the inmate’s treatment plan.
3. Psychology Services staff will schedule groups in a manner that ensures inmates timely access to group programming that is clinically indicated and in compliance with applicable Program Statements.
4. Examples of groups include, but are not limited to, Criminal Thinking, Emotional Self-Regulation, Seeking Safety, Anger Management, Basic Cognitive Skills, and Non-Residential Drug Abuse Program (NRDAP).
5. Correctional Services will provide escort coverage to allow inmates to participate in group treatment.
6. Psychology Services will notify and coordinate with the Captain of the need for escorts in advance of the group meeting time. Escort staff will be assigned to provide timely escorts to and from group sessions.
7. The Priority Practices for the delivery of group treatment will be in accordance with the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness.

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8. Consistent with the Bureau’s current Program Statement regarding the Treatment and Care of Inmates with Mental Illness, a minimum of one Priority Practice therapeutic group will be offered each quarter.
9. Priority for the use of the group treatment modules will be given to Psychology Services, Education, and Recreation.

C. Psychiatric Services. Inmates at ADX Florence are entitled to the full range of psychiatric services and medications available to inmates at other Bureau facilities and will be provided, if clinically indicated, the following services:
1. Psychiatric consultations will be conducted in a private setting unless extraordinary security issues exist. [A7].
2. All inmate requests for psychiatric services will be handled as requests for other mental health services.
3. Psychiatric assessment, treatment, and consultation generally will be provided by the institution psychiatrist, contract psychiatrist, or psychiatric mid-level provider. Other qualified providers with appropriate privileges/practice agreements (e.g., physicians or mid-level providers) may initiate, monitor, and assist in continuing psychiatric care and medications as appropriate. When a provider prescribes psychiatric medication, the inmate will a copy of the consent form, which will disclose the potential side effects and medical risks associated with the prescribed medication.

4. Psychotropic medication will be available to any inmate for whom medication is prescribed regardless of the inmate’s housing assignment or unit (i.e., there will be no exceptions for the Control Unit).
5. At a minimum, inmates receiving psychiatric medications will be seen by a psychiatrist, psychiatric mid-level provider, or other qualified provider every 90 days, or more often as clinically indicated for, at a minimum, the first year. Unstable inmates or inmates who require continued adjustment of their medication regimen will continue to be seen at least every 90 days. Long-term clinically stable inmates (as determined by the psychiatrist), will be reviewed no less than every 6 months, following the initial first year of treatment with psychiatric medication.

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6. [A8][A9]Health Services will notify the psychiatrist, psychiatric mid-level provider, or prescribing clinician and Psychology Services of inmates who refuse or consistently miss their prescribed psychotropic medication for:

a. 3 consecutive doses;
b. 50% of doses within one week; or
c. a clinically significant pattern of doses.
7. Health Services staff will ensure that newly prescribed medications are dispensed to the inmate within 48 hours (or as soon as possible the next work day) of entry of the prescription order into BEMR, or more quickly if specified by the prescriber.
8. Emergency medication will be administered consistent with Bureau policy.
9. Where medication should be administered with food, Health Services will arrange to administer medication at mealtime, provide sufficient food with the medication, or ensure the inmate has food in his cell to consume with the medication.
10. Medication may be administered in crushed form consistent with national policy. [A10]
I
D. Turning Point Protocol. The Turning Point Protocol is a pretreatment service offered to all ADX inmates by Psychology Services. Turning Point is designed to: (1) build rapport by creating a context for cooperative interaction between inmates and psychologists; and (2) prepare inmates for Bureau programs before the inmate is returned to an open compound facility. Turning Point handouts offer practical skills that may help the inmate adjust to restrictive housing. When an inmate completes the Turning Point handouts, Psychology Services may award a certificate of completion to the inmate, Release Preparation Program credit, or special incentive items. Special incentive items may include oil pastels, 3-D paint pens, coloring books, Sudoku books, stress balls, origami materials, erasers, craft materials, etc., as approved by the warden. To receive incentives, the inmate must apply the concepts and skills addressed in the handouts and must engage in positive, meaningful interactions with his psychologist and other institution staff. Completion of the Turning Point Protocol is not required before enrollment in other group or individual services.

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E. Adjunctive In-Cell Therapeutic Activities. Inmates will ordinarily have access to in-cell therapeutic activities, including access to programming through closed-circuit television (e.g., Psychology Services programs), hobby craft provided by Recreational Services or available through a Special Purchase Order, puzzles provided by Recreational Services or Psychology Services, and leisure reading materials. Inmates will also be encouraged to engage in yoga, relaxation techniques, meditation, deep breathing exercises, mindfulness exercises, and grounding techniques. A variety of educational and religious in-cell programming will also be made available to inmates.
F. Treatment and Care for Inmates with Serious Mental Illness Remaining at the ADX Due to Extraordinary Security Concerns. An inmate who is diagnosed with serious mental illness and not needing inpatient hospitalization may remain at the ADX if extraordinary security needs are identified that cannot be managed elsewhere. All inmates at the ADX receive mental health services consistent with their diagnosis and mental health care level, as outlined in Program Statement 5310.16, Treatment and Care of Inmates with Mental Illness. Mental health services provided for inmates with serious mental illness will include the services identified above, if clinically indicated, provided at the frequency and intensity required by the mental health care level assigned, or more frequently as clinically indicated. In addition, the following procedures will apply to every inmate diagnosed with serious mental illness:
1. Every inmate with serious mental illness will have an individualized treatment plan entered in BEMR/PDS within 30 days of his diagnosis of serious mental illness. The treatment plan will:
a. Be developed with input from the inmate.
b. Describe the inmate’s problems and goals, and the interventions planned to achieve these goals.
c. Be reviewed and updated at least once every 12 months for CARE2-MH inmates and every 6 months for CARE3-MH inmates, or more often if clinically indicated.
2. A copy of his treatment plan and any revisions thereto will be offered to the inmate.

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3. Every inmate with a serious mental illness will be assigned a treating psychologist.
4. An internal on-call and coverage system will be maintained to ensure continuity of care and emergency response.
5. If there is a change of therapist, the inmate will be clinically teamed by the departing therapist and oncoming therapist and the results of this team will be documented as an administrative note in the inmate’s BEMR/PDS record.
6. Unless otherwise clinically indicated or specific security or separation issues preclude group access, every inmate with serious mental illness will be offered both individual and group treatment services.
7. Every inmate with serious mental illness will receive supplemental services to include, but not limited to, additional out-of-cell and in-cell recreational activities, in-cell therapeutic activities, and self-help materials from the psychology self-help library.
8. Special attention will be paid to encouraging involvement in out-of-cell activities, including recreation and structured mental health programming.
9. Seriously mentally ill inmates will be offered out-of-cell recreation as determined by the particular housing unit they are currently assigned.[A11] Additional out-of-cell time will also be offered and may include, but is not limited to, education programming, reentry services programming,delivery of health services, religious services programing, visitation, and therapy in accordance with their individually developed treatment plan.
10. If an inmate with serious mental illness declines treatment consistent with his mental health care level, a treatment plan will be developed and implemented which includes regular assessment of the inmate’s mental status, rapport-building activities, and other efforts to encourage engagement in a treatment process. Ordinarily, the treatment plan will include, at a minimum, a weekly attempt to engage the inmate.
11. An inmate with serious mental illness who refuses mental health treatment consistent with his mental health care level

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will be considered for involuntary commitment at a Medical Referral Center or other suitable treatment facility.
12. Efforts will be made to address any deterioration of an inmate’s mental health that may occur during the time the inmate is housed at the ADX. Examples of these efforts may include, but are not limited to:
a. Increased observations of the inmate and visits with the inmate by Psychology Services and Unit Staff.
b. Referral to the At-Risk Recreation Program implemented by the ADX Recreation Department.
c. Referral to Religious Services for Prison Visitation Support (PVS) visits or other services.
d. Development and ongoing review of an individualized safety plan with the inmate.
e. Recommendation that the inmate be offered work activities, such as after-hours orderly work, that could provide him with additional out-of-cell time.
XII. MENTAL HEALTH TRAINING
A. Mental health training is provided to all Bureau employees through Introduction to Correctional Techniques and Annual Training. Annual Training at the ADX will include at least 7 hours of training provided by Psychology Services, which all ADX personnel will be required to attend. The Annual Refresher Training will include identifying and proper reporting of the signs and symptoms of mental illness and the safe and secure management of misconduct, including violence, by inmates with mental illness.
B. Mental Health Specialty Training is also made available at the ADX. At a minimum, this specialty training is offered twice annually. Mental Health Specialty Training will include 4 hours of specialized mental health training, focused on understanding mental illness, cultural diversity and sensitivity, psychiatric medications, behavior management principles, confidentiality, communication skills, de-escalation skills, and building collaborative relationships. This training may be offered to all ADX staff on a voluntary basis. This training is in addition to yearly training on suicide prevention, which includes mock suicide drills, as explained in FLM 5324.08, Suicide Prevention Program.

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XIII. INMATE DISCIPLINE
A. An inmate’s diagnosed mental illness may contribute to inmate code violations that could result in disciplinary sanctions, including SHU placement or the extension of SHU placement. In these cases, it is the responsibility of the Chief Psychologist or his or her designee to consult with the DHO or UDC to ensure the disciplinary process is applied appropriately to inmates with mental illness. Pursuant to Program Statement 5310.16, Treatment and Care of Inmates with Mental Illness, the following incident reports will be referred to the Chief Psychologist who will identify an appropriate clinician to provide input as to the inmate’s competence to participate in the disciplinary hearing, any impact the inmate’s mental illness may have had on his responsibility for his behavior at the time of the charge, or information on any known mitigating factors in regard to his behavior, when clinically indicated:
1. Any incident report received by a CARE3-MH or CARE4-MH inmate.
2. Any incident report received by a CARE2-MH inmate where there appears to be a mental health concern.
3. Any incident report for Code 228 involving self-harm.
4. Any incident report for Code 302, Misuse of Authorized Medication.
B. The Unit Discipline Committee (UDC) and Discipline Hearing Officer (DHO) will consider the input from Psychology Services prior to adjudicating the charges. For the purposes of this review, the standards for evaluation are outlined in Program Statement 5270.09, Inmate Discipline Program.
C. The UDC and DHO will consult with the treating clinician as to whether sanctions that limit social support (e.g., SHU placement, loss of visits, or loss of phone calls) may not be appropriate for the inmate with mental illness who uses these supports as a component of his treatment or recovery.
D. Psychotropic medication will not be withheld from any inmate solely for disciplinary reasons. If an inmate has diverted a psychotropic medication, the psychiatric care provider will make the determination as to whether discontinuation of the medication is clinically warranted.

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XIV. CALCULATED USE OF FORCE: Mental health clinicians will not participate as a use of force of team member in a calculated use of force situation, but may be utilized as a member of a calculated use of force team for confrontational avoidance. Specifically, the ADX mental health professionals may participate in confrontation avoidance procedures pursuant to Program Statement 5566.06, Use of Force and Application of Restraints.
XV. ACHIEVEMENT AWARDS & INCENTIVES
A. Mental Health achievement awards are available to all inmates at ADX Florence. Achievement awards are offered to participants who demonstrate behaviors that reflect sustained efforts toward recovery, progress on treatment goals, and pro-social attitudes and behaviors.
B. When an inmate completes a psychology program, Psychology Services issues certificates and program credit to inmates who complete psychology programming.
C. The ADX may offer incentives such as additional phone calls, extra commissary shopping opportunities, or permission to place a special purchase order.
D. With the Warden’s approval, tangible incentives may be given, (e.g., books, t-shirts, notebooks, pencil pouches, mugs with positive affirmations, food and hygiene items not sold in commissary).
XVI. COMMUNICATION AND CONTINUITY OF CARE
A. Inmates Who are Known to Require Special Precautions. Consistent with Institutional Supplement FLM 5324.08A, Suicide Prevention Program, on a monthly basis, the Mental Health Treatment Coordinator will provide each housing unit a list of known inmates with mental health conditions who should be monitored when placed in the SHU for signs that they may become dangerous, self-destructive, suicidal, or who have a history of suicide attempts. This list will be reviewed by the Mental Health Treatment Coordinator at least quarterly, updated as needed, and distributed via email to Correctional Services, Health Services, and Unit Team staff. This list will be made available to all staff through the BOPWARE Special Housing Unit Application. When an inmate on this list is placed in the SHU, a Correctional Services Supervisor will notify Psychology Services immediately. Staff will continue to observe all inmates in SHU for any change in mental health status and report any observations to Psychology Services.

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B. Behavioral Health Committee Meeting (BHCM). The BHCM will be held monthly. Attendees will include the Assistant Health Services Administrator/Supervisory Nurse, psychiatrist, psychiatric mid-level provider, Clinical Director, and the ADX psychologists. This committee will promote coordination of mental health care for all the ADX inmates through discussing treatment goals and engaging in problem-solving for inmates suffering from mental illness. The Committee will also attempt to reconcile any differences in diagnoses between Health Services and Psychology Services. The Committee will ensure the ADX inmates receive appropriate medication and follow-up care. This meeting may be combined or integrated with the CCARE meeting.
C. Between Bureau Institutions. To promote continuity of care for inmates with mental illness as they transfer, a Mental Health Transfer Summary must be completed in BEMR/PDS every time an inmate with mental illness (CARE2-MH, CARE3-MH, and CARE4MH) transfers out of the ADX. The ADX Psychologist assigned to the case is responsible for completion of this summary in collaboration with the Psychiatric Service Provider, Psychiatric MidLevel Provider, and/or Psychiatric Nurse.
D. Community Treatment Services (CTS). Beginning no later than 9 months before an inmate’s anticipated release, Psychology and Health Services staff will collaborate with CTS regarding the ADX inmates assigned a CARE2-MH or higher releasing to a residential re-entry center or home detention. When a releasing inmate is appropriate for CTS mental health services, psychology staff will enter a Mental Health Treatment Summary in BEMR/PDS and forward a copy to CTS.
E. Reentry Planning Services. A full-time, master’s level, licensed clinical social worker, who is a member of the Health Services Department and mentored by the North Central Regional Social Worker, will provide reentry planning services, in conjunction with the treatment team and consistent with best practices, as follows:
1. Reentry services consistent with best practices will be provided to all inmates pending release directly to the community, home detention, or Residential Reentry Center (RRC), listed in order of priority for services:
a. The ADX inmates and inmates transferred from the ADX to another facility within 3 months of their

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2. 3.
4. FLM 5310.16A

release, regardless of medical/mental health classification.
b. Inmates in the SECURE Stages Program at the United States Penitentiary, High Security, Florence, Colorado.
c. Inmates housed in other facilities at FCC Florence, Colorado, who are assigned a CARE3-MH.
d. Inmates housed in other facilities at FCC Florence, Colorado, who are assigned a CARE3-Medical.
e. Inmates housed in other facilities at FCC Florence who are assigned CARE2-MH.
f. Inmates housed in other facilities at FCC Florence who are assigned CARE2-Medical.
Beginning at a minimum of 12 months prior to release and continuing up to release, inmates in the targeted population are provided, as appropriate and consistent with best practices: (a) personal interview/counseling; (b) group reentry counseling; and (c) individual tele-social work.
Beginning no later than 12 months before the inmate’s expected release, the social worker will engage with critical stakeholders involved in the inmate’s release planning, including but not limited to, the inmate’s correctional case manager, treating clinicians, and drug treatment specialists. The social worker and critical stakeholders assess and evaluate the inmate’s: (a) psychosocial issues; (b) individualized treatment plan for mental/medical needs including medications, counseling services, and subspecialty care as indicated; (c) addiction intervention needs; (d) disability identification; (e) financial needs; (f) housing concerns; (g) employment opportunities; (h) life skills; (i) family integration; and (j) child support obligations.
Beginning no later than 12 months before the inmate’s expected release, the social worker will begin to provide the following services: (a) an individual written release plan approved by the treatment team and documented in the inmate’s medical record; (b) assistance with obtaining government-issued personal identification, a social security card, and a birth certificate; (c) linkage to probation/reentry court as appropriate; (d) scheduling appointments for follow-

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up medical/mental health and needed psychosocial services in community; (e) ensuring a supply of prescription medications; (f) provision of necessary medical equipment and ancillary health services as warranted; (g) referral to drug treatment program for chronic addiction as appropriate; (h) education and enrollment into Social Security, Disability, Medicare, Medicaid, Veterans Benefits, and Affordable Health Care Act Exchanges as appropriate; (i) assistance with housing arrangements; (j) assistance with integration into Health and Human Services-funded community-based transitions programs for released offenders as available; (k) guidance/support toward securing education, training, and employment opportunities; and (l) guidance/support toward healthy family and community reintegration.
F. Suicide Prevention. The ADX staff will comply with Institution Supplement FLM 5324.08, Suicide Prevention Program. Without limiting or modifying that Institution Supplement, every observation cell at the ADX used to house inmates for suicide prevention purposes will be cleaned and sanitized before each use and will be maintained at the temperature required by Program Statement 4200.10, Facilities Operations Manual. During nighttime hours, to permit the inmate to sleep, the lighting in such cells may be adjusted to the lowest level consistent with the need to maintain the inmate under appropriate observation.
G. Quality Improvement (QI). Mental health care (i.e., assessment, referral, and treatment services) will be reviewed under the Bureau’s existing protocols, to include the Health Services Improving Organizational Performance Plan (IOP) protocol, perpetual audits of Program Review Guidelines, Health Services and Psychology Services Peer Reviews, Operational Reviews, and Program Reviews. Examples of appropriate QI activities include reviewing promptness and appropriateness of medication renewals, review of suicide attempts and follow-up, review of clinical use of restraints, and determining the adequacy of sick call procedures. As appropriate, Correctional Services will participate in QI activities with Psychology and Health Services staff.

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EXHIBIT 4

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FINAL CLIENT REVIEW DRAFT - 8/3/2016

U.S. Department of Justice Federal Bureau of Prisons
United States Penitentiary Florence, Colorado 81226

INSTITUTION SUPPLEMENT

OPI:

Psychology Services

NUMBER: 5330.11(__)__

DATE:

July __, 2016

SECURE STEPS TOWARD AWARENESS GROWTH AND EMOTIONAL STRENGTH (STAGES) PROGRAM

/s/ Approved: Jack Fox, Complex Warden

I.

Purpose: To implement local guidelines and procedures for the implementation of the

Secure Steps Toward Awareness Growth and Emotional Strength (STAGES)

Program, a residential psychology treatment program at the United States Penitentiary,

Florence, Colorado.

II.

Directives Affected:

A. Directives Rescinded:
Institution Supplement FLP 5330.11(2), Secure Steps Toward Awareness Growth and Emotional Strength (STAGES) Program, dated July 21, 2015.
B. Directives Referenced:

PS 5330.11, Psychology Treatment Programs; PS 5310.12, Psychology Services Manual; PS 5310.16, Treatment and Care of Inmates with Mental Illness.

III.

Standards Referenced:

American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4-ALDF-4C-13, 4-ALDF-6B-03 and 4-ALDF-6B-02.

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IV.

Program Overview: The Secure STAGES Program is a residential psychology

treatment program which targets male inmates from Maximum custody and/or High

security Federal Bureau of Prisons (Bureau) institutions with a Personality Disorder

diagnosis, who have a chronic history of self-injurious behavior or do not function

effectively in a prison setting. The Program employs a comprehensive model that

includes an emphasis on a modified therapeutic community, cognitive-behavioral

therapy/dialectical behavior therapy, and peer support. The treatment materials used

are evidence-based practices. Interventions and skills taught to inmates are based on

Dialectical Behavior Therapy theory, Rational Self Analysis, Supported Employment,

Seeking Safety, and cognitive-behavioral therapy.

The goals of the Program are to (1) evaluate and diagnose mental health disorders; (2) promote stabilization; (3) rekindle hope through psychotherapeutic methods and rehabilitation; (4) design and implement a multi-dimensional treatment plan grounded in evidence-based interventions; (5) educate inmates about their mental illness, treatment options, and relapse prevention strategies; (6) assist inmates with making a successful transition to less restrictive environments (where such a transition is appropriate given the inmate’s security needs, mental health needs, and progress in the Program), or the community, (7) establish pro-social skills and lifestyles; and (8) train staff to support inmates in their recovery process. The primary objective of the Program is to provide psychological treatment that improves quality of life and decreases the risk of suicide for inmates who use self-harm as a means to manage emotional distress, and have displayed poor functioning in prison as a result of characterological problems. Thus, the Program is designed to increase the time between, and diminish the severity of, emotionally disruptive behaviors, foster living skills that support adaption into the General Population or community setting, and increase pro-social skills. The Program prepares inmates for transition to less secure prison settings and for successful reentry into society at the conclusion of their term of incarceration.

The Program’s treatment philosophy is based on the biopsychosocial and rehabilitative model. Staff will help the Program participants look at all aspects of their lives: biological, psychological, and social. Staff will emphasize a participant’s strengths in these areas, as well as problem behaviors that prevent them from achieving their stated goals. The Secure Program Treatment Team will discuss its recommendations with the participant in regular Treatment Team meetings, and the primary clinician will follow up on Treatment Team recommendations with the participant.

In addition to mental health treatment and peer support interactions, the participants will be encouraged to participate in an array of pro-social, healthy leisure activities. The participants will regularly participate in community-building activities throughout the course of treatment. The ability to structure free time is considered paramount for successful management of mental health treatment needs and decreasing risk of violence against self and others, as well as building skills for successful re-entry into less restrictive environments. These activities, such as regular community meetings and group therapy, are modified as appropriate for the security needs of the participants. As the participants demonstrate the ability to manage symptoms of mental

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illness and maintain the safety of self and others, these self-directed activities may take place socially, with other program participants, and in a progressively less restrictive environment or security level. A participant’s treatment phase and security level will be used as an indicator of how he may engage in these activities.

All inmates living in the Residential Program Unit, along with the staff affiliated with the Program, work to promote the goals of the Program. The Program, when fully staffed, has a capacity of 18 (10 in the “secured cell area” and 8 in the “unsecured cell area”) participants. The participants may be assigned one to two companions who will assist the participant with implementation of dialectical behavior therapy skills. The policies and procedures in the Program may differ from other General Population units and will be designed to influence improved functioning of the Program community members. The Program staff will work closely with other disciplines to enhance programing opportunities and to ensure programing activities do not violate any safety or security regulations.

Program participation will vary in length depending on the treatment needs of the participant. Participants who have successfully completed the Program may be transferred to other facilities. Some participants may be allowed to remain in the Program Unit after completing the Program; if so, they will continue to actively engage in the Program.

V.

Program Responsibilities:

A. Chief Psychologist: The Chief Psychologist at FCC Florence has primary responsibility for the implementation of the Program. The Chief Psychologist may designate another doctoral-level psychologist as the Secure STAGES Program Coordinator.

B. Secure STAGES Program Coordinator (Program Coordinator): The Program Coordinator is a Specialty Treatment Program Coordinator, who, in conjunction with the Chief Psychologist and the Federal Bureau of Prisons (Bureau) Psychology Services Branch, is responsible for assessing the suitability of inmates referred to the Program. The Program Coordinator will ensure that treatment plans are developed by a Secure STAGES Program Psychologist for each participant, and will facilitate and supervise program services, monitor participant progress in the program, recommend discharge, and plan aftercare. The Program Coordinator will complete a “Secure STAGES Monthly Status Report,” Attachment A, and assist the Chief Psychologist in ensuring that contacts with participants are documented appropriately. Ordinarily, the Program Coordinator does not carry a caseload.

C. Secure STAGES Program Psychologist (Psychologist): The Psychologist is responsible for providing group and individual therapy to the participants in the Secure STAGES Program. The Psychologist completes psychosocial interviews, prepares relevant reports and documentation, develops treatment plans,

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participates in clinical team meetings, and reports relevant information to the Program Coordinator. In addition, the Psychologist completes any clinically relevant psychological testing on program participants. The caseload for a Psychologist is a maximum of 6 participants.
D. Psychiatric Care Provider: The Psychiatric Care Provider (e.g., a psychiatrist or psychiatric mid-level provider) is responsible for providing psychiatric treatment, assisting with medication compliance, and ensuring that psychiatric contacts with inmates are documented appropriately.
E. Social Worker: The Social Worker for the Federal Correctional Complex assists in providing re-entry initiatives and ensuring continuity of care for participants who are either transferring to another institution or being released to the community.
F. Secure STAGES Program Lieutenant (Lieutenant): The Lieutenant is responsible for ensuring staff follow the safety and security policies on the Program Housing Unit. The Lieutenant oversees the Unit Officers on the Program Unit, ensuring enough staff are available for programming and recreation moves on the unit. In addition, the Lieutenant works with program unit staff to support the therapeutic environment by monitoring participants’ completion of daily activities and communicating regularly with the Treatment Team.
G. Unit Team Staff: The Unit Team includes a Unit Manager, Case Manager, and Correctional Counselor, who maintain all housing unit and unit management responsibilities; to include the establishment of measurable goals to coincide with the individualized treatment plan developed by the Treatment Team and the review of a participant’s progress during his regularly scheduled reviews. The Unit Manager and Program Coordinator work together to coordinate inmate movement into and out of the Program.
H. Secure STAGES Program Treatment Team (Treatment Team): The Treatment Team consists of the Program Coordinator, up to three Psychologists, and the Psychiatric Care Provider. Together, they create a team approach to the treatment and care of participants in the Program. They collaborate with one another in creating/revising treatment plans and clinical interventions. They oversee a participant’s treatment and gauge his progress in treatment. The Treatment Team determines when an inmate is moved forward or regressed in treatment. The Treatment Team communicates regularly with the Lieutenant and the Unit Team.
I. Secure STAGES Program Monthly Briefings: The Program Coordinator or designee will meet monthly with institution Executive Staff to discuss current participants’ security levels, status, and treatment progress; pending referrals; companion concerns or issues; and other relevant issues that affect the Program.
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The Chief Psychologist, Deputy Chief Psychologist, Unit Manager, Program Unit Lieutenant, and Attorney Advisor are included.

VI.

Conditions of Confinement

A. Residential Program Unit (Program Unit): The Program will be housed in Delta-B. Eleven cells (“secured cell area”) in Delta-B have been separated from the remaining cells in the housing unit (“unsecured cell area”). A small indoor recreation area and group treatment enclosures have been created in the common area of the unit. Delta-B has a designated outdoor recreation area separate from the recreation areas designated for General Population inmates. The outdoor recreation area consists of two separated recreation enclosures and a larger group recreation area.

B. Treatment Community: The Program Unit will have rules and daily procedures designed to maximize treatment success and promote pro-social community involvement. The following procedures will apply to the Program Unit:

1. Only inmates affiliated with the Program will be allowed to live in the Program Unit. Listed below are the SENTRY assignments for those inmates who are suitable for living in the Program Unit. These assignments will be reflected in SENTRY and updated as indicated:

a. STAGES SECURE PROG WAITING (STA WAIT S) b. STAGES SECURE PROG PARTICIPANT (STA PART S) c. STAGES SECURE PROG CADRE (STA CADRES) d. STAGES SECURE PROG COMPLETED (STA COMP S)

2. Community meetings will occur every work day to discuss activities of the day, report news and upcoming events, recognize the achievements of participants, and to discuss relevant STAGES community issues. Participants and companions who are in the unit at the time of the meeting will be required to attend and participate. Participant attendance will be consistent with the identified security level for each participant.

C. Admission and Orientation: Companions and participants will receive a USP Florence A&O Handbook, as well as a Secure STAGES Participant Handbook, which will serve as a guide to the expectations, procedures, and rules and regulations of the Program Unit. All companions and participants will participate in an Institution and Program Unit A&O Program as outlined by Program Statement 5290.14, Admission and Orientation Program, instructed by all applicable staff members. Instructions for participating in the Institution A&O Program are provided to companions and participants at intake screening and during Program Unit A&O.

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D. Environment/Sanitation: All participants and companions will be accountable for maintaining acceptable levels of sanitation in common living areas, treatment areas, and cells of the Program Unit. Environment and sanitation standards are outlined in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook. Unit sanitation will be monitored by Treatment Team, Unit Team, and the Program Unit Officers on a regular basis. The participants and companions are expected to work together to keep the housing unit and treatment area clean.
E. Cell Assignments: All participants will be celled as outlined in the Security Levels section, below. Participants in secure cell assignments will be rotated every 90 days. Participants and companions in the unsecured cells will rotate in accordance with the institution cell rotation plan.
F. Bedding/Clothing: All participants and companions will be issued a laundry bag with an adequate supply of clothing, towels, and linens. A list of institution-issued clothing, towels, and linens can be found in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook. Specific procedures for linen exchange and laundry are also outlined in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook. Participants and companions who alter or damage institution-issued items will be subject to disciplinary action.
G. Personal Hygiene: All participants and companions have access to a wash basin and toilet in their cell. Participants in Security Levels 1 and 2 will be provided with a minimum of three showers per week. All other participants and the companions will have access to showers when they are out of their cell. Hygiene items will be issued to participants and companions on a regular basis, and additional items may be purchased through commissary. Procedures for the issuance of hygiene items are outlined in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
H. Meals: All participants and companions will receive three meals per day, either through satellite feeding in their cell or on the Program Unit, or by attending mainline. Feeding procedures are outlined in the applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
I. Work Assignments: Companions will be assigned a “Secure STAGES Companion” work assignment. Participants will have work assignments commensurate with their treatment phase and security level, such as unit or recreation orderlies. Unit Team will be responsible for work assignments and will collaborate with the Treatment Team, Lieutenant, and Program Unit Officers with regard to appropriate work assignments for participants and companions.
J. Education: Participants and companions will have access to the Education department and library services on the Program Unit. Security Level 4
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participants and companions will also have access to the Education department and library services in General Population. Information regarding access to the Education department is available in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
K. Recreation: All participants will be offered a minimum of 13 hours of unstructured out-of-cell recreation per week, including a minimum of 5 hours of recreation occurring outdoors. Access to recreation will be determined by the participant’s security level. Security Level 4 participants and the companions will have access to the Program Unit recreation area, as well as the recreation areas designated for General Population inmates. Additional programming opportunities may be offered by the Recreation department. Information regarding recreation procedures is available in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
L. Personal Property: Provided there are no property restrictions in place, participants will be allowed personal property based on their individual security level. To the extent consistent with the treatment goals of the Program, companions will ordinarily be allowed the same personal property afforded to General Population inmates. Information regarding authorized personal property is outlined in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
M. Commissary: Provided there are no commissary restrictions in place, participants will be allowed commissary based on their individual security level. To the extent consistent with the treatment goals of the Program, companions will ordinarily be allowed the same commissary afforded to General Population inmates. Information regarding approved commissary lists is outlined in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
N. Visits: Provided there are no visiting restrictions, all inmates may receive social visits. Ordinarily, companions and Security Level 4 participants will receive contact social visits; all other inmates will receive non-contact social visits. The Warden may permit Security Level 3 participants a contact social visit if, following consultation with the Treatment Team, it is appropriate given the goals of the Program and the participant’s treatment plan, treatment phase, and level of functioning, Such a determination will be made on an individual, case-by-case basis. Information regarding visiting procedures is available in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
O. Correspondence, Telephone Use, and TRULINCS Access: Social correspondence will be permitted, subject to any correspondence restrictions. Ordinarily, if a participant is not on telephone restrictions, regardless of Security Level, he will be allowed 300 minutes per month. Ordinarily, companions will
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also be allowed 300 minutes per month. Provided there are no TRULINCS restrictions in place, participants and companions will have access to TRULINCS. Procedures for correspondence and use of the Inmate Telephone System and TRULINCS are provided in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
P. Legal Activities: Participants and companions will be provided legal telephone calls and visitation in accordance with national policy. Participants and companions will also have access to the Electronic Law Library in the housing unit and will be allowed to assist one another as permitted by national policy. Participants and companions will be permitted to maintain one cubic foot of legal materials in their cells. In limited circumstances, Security Level 1, 2, and 3 participants may request that copies be made of legal documents; Security Level 4 participants and companions will have access to a photocopier in Education. Specific information regarding inmate legal activities is located in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
Q. Religious Activities: All participants and companions may pursue religious beliefs and practice in accordance with national policy. Specific information regarding inmate religious practices is available in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
R. Library Services: Library services will be available to participants and companions. Specific information regarding access to library services is available in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
S. Medical Care: Security Level 4 participants and companions will access medical services in accordance with General Population procedures. A health care provider will make daily rounds to conduct sick call and pill line for Security Level 1, 2, and 3 participants. More specific information regarding medical services is outlined in applicable Institution Supplements, A&O Handbook, and Secure STAGES Participant Handbook.
T. Mental Health Care: Participants in the Program will have access to Psychology Services through the Program. Additional optional Psychology services may be available. Participants will be offered a minimum of 5 hours of out-of-cell structured therapeutic programming per week, which may include group therapy, individual therapy, community meetings, art therapy, recreational therapy, or other structured recreational time. Emergency mental health care will be available via the on-call psychologist.
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VII.

Program Referrals:

A. Male inmates from high and maximum custody Bureau facilities will be considered for the Program.

B. A prospective participant must consent to enter the Program and be no less than 18 months from release, to allow sufficient time to compete the Program. In general, referrals to the Program will be submitted to the designated Mental Health Treatment Coordinator in the Psychology Services Branch of Central Office by the referring institution’s treating psychologist or psychiatric care provider. Once the Mental Health Treatment Coordinator reviews the case, he/she will submit the referral to the Program Coordinator for review. The Program Coordinator reviews the case in consultation with institution Executive Staff and Psychologists. If the prospective participant is determined to be an appropriate referral, the referring psychologist is notified and encouraged to begin Pre-STAGES Treatment. At this time, the referring psychologist will also ensure an updated Diagnostic and Care Level formulation has been entered into PDS/BEMR. As bed space becomes available, an interview will be scheduled by the Program Coordinator with the prospective participant. The Program Coordinator is responsible for documenting the interview in PDS/BEMR. Although an inmate may be appropriate to participate in the Program, he may be placed on the waitlist pending bed space and/or resolution of safety and security issues.

C. Documentation will be sent to the referring psychologist or psychiatric care provider regarding acceptance or denial into the Program. Once inmates from other Bureau facilities are accepted into the Program, the referring psychologist will coordinate the inmate’s designation with the inmate’s Unit Team.

D. The referring psychologist or psychiatric care provider is responsible for obtaining the prospective participant’s consent to participate in the Program (form BPA094), uploading the consent to PDS/BEMR, and submitting it to the Program Coordinator. If an inmate who is recommended for the Program does not consent to participate in the Program, staff will utilize motivational interviewing strategies on an ongoing basis in attempt to obtain the prospective participant's consent. In addition, care consistent with the prospective participant's mental health care level will be offered to the prospective participant in his current setting, to include dialectical behavior therapy interventions, if the prospective participant is amenable. Psychology Services Branch staff will also explore involuntary treatment options, which may be available to the inmate at an alternate facility.

VIII.

Treatment Assessment Procedures: Upon arrival to the Program, the Psychologist

will conduct a comprehensive psychosocial assessment (including a thorough records

review), contact previous treatment providers, and complete a thorough diagnostic and

care level formulation in PDS/BEMR of each new participant. The Psychiatric Care

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Provider will also assess the participant and review any psychotropic medications. These evaluations will assist in formulating an individualized treatment plan for each participant.

Once in the Program, each participant will receive 60-day progress reviews by the Psychologist, which will serve as a way to assess the participant’s progress. The 60-day progress review will be reviewed with the participant and will outline treatment plan accomplishments, areas of improvement, areas of difficulty, recommendations for continued improvement, etc.

IX.

Treatment Phases: The Program does not use a cohort model; rather, participants are

admitted to the Program as space becomes available and will advance through the

Program according to their observed behavioral mastery of the skills. When the

Treatment Team determines that a participant is ready to advance to the next treatment

phase, a transition ceremony will be held within the community to recognize the

participant’s accomplishments. If a participant displays a pattern of behavior

inconsistent with the treatment phase to which he was advanced, he may be returned to

an earlier treatment phase in order to ensure mastery of more basic skills. The

Program is comprised of three treatment phases, which follow a Pre-STAGES

component. All participants will be in an identified treatment stage. The treatment

phases determine the attributes of the participant’s treatment environment that best

match the participant’s current functioning with regard to the participant’s ability to keep

himself and others safe, engage in appropriate social contact, follow institutional and

program rules, manage emotional expression, and manage activities of daily living. A

description of the Pre-STAGES component, each of the treatment phases, and the

participants’ movement through the treatment phases is as follows:

A. Pre-STAGES Component: Inmates identified as meeting diagnostic criteria for the Program will participate in Pre-STAGES programming prior to entering the Program. The goal during Pre-STAGES is to assess a prospective participant’s readiness and commitment to the Program and to provide psychoeducation and clinical interventions to prepare the inmate to transfer to the Program. The PreSTAGES programming will occur at the referral institution. During this period, the prospective participant will be provided with the Secure STAGES Participant Handbook, and his treating psychologist will review and discuss the Program’s expectations with him. A written individualized treatment plan will also be developed by the treating psychologist with the treatment goals that the prospective participant must work toward prior to his transfer to the Program. The prospective participant will be assessed by the treating psychiatrist or psychiatric mid-level provider to determine any medication needs or adjustments. The prospective participant may be required to participate in additional psychological testing to aid in assessing appropriateness. Areas of assessment may include the prospective participant’s current ability and willingness to address his mental health treatment needs, risk for violence, social skills, independent living skills, and any other skills needed for transition to the Program. Evidence-based treatment interventions that may be provided during

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this phase include Dialectical Behavior Therapy, social skills trainings, and examining criminal thinking errors. When the Program Coordinator determines the prospective participant has made satisfactory progress on his individualized treatment plan, he will be interviewed by the Program Coordinator to further discuss the Program and assess the prospective participant’s readiness to begin the Program.
B. Treatment Phases
1. Phase 1 - Orientation Phase: Upon arrival to the Program Unit, the participant will be placed in Treatment Phase 1 - Orientation Phase. The goals of this phase include building rapport with staff and motivating the participant to engage in treatment in a modified treatment community. The primary focus is on stabilizing and orientating the participant and assisting him in achieving behavioral control.
During the Orientation Phase, the participant will participate in a Psychosocial Interview and an evaluation by a psychiatrist or mid-level psychiatric provider. The Treatment Team will develop a treatment plan in collaboration with the participant within the first 30 days of the participant’s arrival to the Program. The participant is expected to demonstrate willingness to conform to the norms of the Program, participate fully in treatment sessions, demonstrate a positive attitude, complete a statement that outlines his readiness for treatment, and learn to accept feedback from staff, companions, and peers. The participant will be encouraged to participate in community meetings and group treatment on the unit, but may begin with in-cell treatment assignments if clinically necessary (i.e., participant is still acclimating to the treatment environment). The participant will also engage in individual therapy sessions; become familiar with staff, companions, and peers; begin adjusting to the unit; identify personal goals; and learn and practice adherence to program rules.
The behavioral targets in the Orientation Phase include: decreasing lifethreatening behaviors (e.g., self-harm acts, including suicide attempts, high risk suicidal ideation, plans, and threats), decreasing therapyinterfering behaviors (e.g., missing sessions, physical disruption of sessions, encouraging negative interactions), decreasing quality-of-life interfering behaviors, reducing behavioral patterns serious enough to substantially interfere with any chance of a reasonable quality of life (e.g., depression, anxiety, time in the Special Housing Unit), and increasing behavioral skills (e.g., skills in emotional regulation, interpersonal effectiveness, distress tolerance, mindfulness, and self-management). The participant’s willingness and capability to interact with staff, companions, and peers in a safe and cooperative manner will also be assessed.
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During the Orientation Phase, the participant participates in weekly individual sessions with a Psychologist, which may occasionally include his companion(s). All interactions will be conducted in a therapeutic setting appropriate for the participant’s security level, including secure treatment enclosures in the common area of the unit or a private, secure treatment room. The participants progressing through Orientation Phase will have the ability to attend and participate in group. The Orientation Phase will last a minimum of three months.
2. Phase 2 - Core Treatment Phase: Once a participant emotionally and behaviorally adjusts to the treatment environment, displays appropriate behavior in individual and group treatment, and begins to grasp treatment concepts, he is moved into Treatment Phase 2 - Core Treatment Phase. During this phase, he will be required to participate in community meetings and group treatment on the unit.
The participant will develop knowledge related to the four core Dialectical Behavior Therapy (DBT) skills (Core Mindfulness, Emotional Regulation, Interpersonal Effectiveness, and Distress Tolerance) through repeated exposure in Skills Group. The participant is expected to begin building positive relationships in group, on the treatment unit, with institution staff, and with community friends and family. The participant is also expected to develop thought processes and pro-social coping skills required to improve his quality of life in both prison and the community. In addition, the participant is expected to appropriately accept feedback from peers, companions, and staff, while continuing to identify strengths and work on weaknesses. Furthermore, the participant is expected to routinely display alternative coping skills and refrain from engaging in self-harm as a means to cope with negative emotions or control his environment. The participant will begin to develop realistic expectations for exiting the Program. The Core Treatment phase will last a minimum of six months.
3. Phase 3 - Transition Phase: The primary focus of Treatment Phase 3 Transition Phase is on improving the quality of life of the participant within the treatment setting, as well as in the General Population outside of the Program Unit, with the ultimate goal being successful transition to the community. This is accomplished by the participant achieving mastery related to DBT Skills with decreased need for therapeutic and coaching interventions. The participant will continue to participate in group therapy and community meetings and will take a more active leadership role. The participant will practice the skills acquired both during treatment programming and during his daily interactions with peers and staff within the prison setting.
Participants in the Transition Phase are expected to be helpful to, and serve as positive role models for, newer participants. Also, participants
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will be able to teach the skills acquired during treatment to individuals in the Program. The primary focus is on reinforcing independent practice of DBT skills. In addition, the participant will work with the Social Worker to solidify an appropriate release or transfer plan to ensure support is available after the Program. Transition phase will last a minimum of three months.
C. Movement through the Treatment Phases: The Treatment Team determines changes in a participant’s treatment phases.
1. During daily interactions with Program Unit Officers, Unit Team, and other appropriate staff, and regular Treatment Team meetings, a participant’s program treatment phase will be evaluated to ensure the participant is in the appropriate treatment phase.
2. The Secure STAGES Participant Handbook provides participants with an outline that clearly links treatment phases to behavioral benchmarks, including benchmarks to progress to and remain in a treatment phase.
3. When the Treatment Team observes a participant’s consistent increase in functioning, the participant may progress to the next treatment phase. Increase in functioning is typically evidenced by the participant’s ability to keep himself and others safe, engage in appropriate social contact, follow institutional and program rules, manage emotional expression, and to independently coordinate activities of daily living.
4. When the Treatment Team observes a participant’s consistent decrease in functioning, he may be returned to a previous treatment phase. Decrease in functioning is typically evidenced by a participant’s inability to keep himself and others safe, lack of appropriate social contact, not following institutional and Program rules, inability to manage emotional expression, and inability to independently coordinate activities of daily living.
5. When a participant’s treatment phase is changed, the Treatment Team will document the reason for the change in treatment phase within the inmate’s PDS/BEMR record, and verbally notify the participant of his change in treatment phase.
X. Security Levels: The security levels are used for participants to ensure the safety and security of the participant, peers, companions, staff, and the institution. The security levels allow for a participant to step-down to less restrictive housing and acclimate to a less restrictive setting. Prior to arrival to the Program, a participant’s security needs will be assessed during the Secure STAGES Committee meeting, and he will be assigned a Program security level. It is anticipated that as the participant progresses through the treatment phases, the need for enhanced security measures will diminish. All participants will have an institution work assignment commensurate with his security level.
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A. Levels: The security levels range from Security Level 1 (most restrictive) to Security Level 4 (least restrictive). A description of each of the levels is as follows:
1. Security Level 1:
a. As a Security Level 1, the participant will reside in a single cell on the secured-cell range of the Program Unit.
b. The participant will have single occupancy recreation through the use of a recreation enclosure.
c. He will participate in both group and individual treatment through the use of treatment enclosures or other appropriate non-contact measures.
d. All other services, such as meals and telephone calls, will be provided in-cell or at cell-front.
e. Security Level 1 participants may have a television in their cell.
f. While being escorted within the Program Unit and its designated recreation area, the participant’s hands will be restrained behind his back, using appropriate, double-locked hand restraints. If a participant is escorted outside of the Program Unit, he will be restrained in the front with a martin chain and appropriate, double-locked hand restraints.
g. Anytime a Security Level 1 participant is removed from his cell, he is expected to back out of his cell and to be patsearched. A minimum of two staff will conduct all escorts. A rapid rotation baton is required when escorting a Security Level 1 participant.
2. Security Level 2:
a. As a Security Level 2, the participant will reside in a single cell on the secured-cell range of the Program Unit.
b. At the discretion of the participant and Program Unit Officers, the participant may engage in double occupancy recreation with one other Security Level 2 participant.
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c. He will engage in individual and group treatment through the use of treatment enclosures or other appropriate non-contact security measures.
d. All other services, such as meals and telephone calls, will be provided in-cell or at cell-front.
e. Participants may have a television in their cell.
f. Security Level 2 participants are offered up to 2 hours per day of out-of-cell “leisure time” in a treatment enclosure, while other inmates are in the common area of the unit. During this time, a participant can watch television, play games, socialize, or engage in other pro-social activities with other Security Level 2 participants and their assigned companions.
g. While being escorted within the Program Unit and its designated recreation area, the Security Level 2 participant’s hands will be restrained behind his back, using appropriate, double locked hand restraints. If a Security Level 2 participant is escorted outside of the Program Unit, he will be restrained in the front with a martin chain and appropriate, double-locked hand restraints. Anytime a Security Level 2 participant is removed from his cell, he is expected to back out of his cell and to be pat-searched. A minimum of two staff will conduct all escorts.
3. Security Level 2.5:
a. In an effort to ease a participant into a less restrictive environment, he may be placed on a Security Level 2.5. This level is an intermediate step within Security Level 2, allowing for some treatment to take place without the use of treatment enclosures. The Program Coordinator or designee, in consultation with the Lieutenant, determines when a Security Level 2.5 participant can participate in treatment on the unsecured cell area of the unit or without the use of restraints.
b. A Security Level 2.5 participant continues to reside in a single cell on the secured cell area, however, he may participate in recreation with other Security Level 2.5 participants and their assigned companion(s) in the group area of Delta-B recreation.
c. All other services, such as meals and telephone calls, will be provided in-cell or at cell-front.
d. Participants may have a television in their cell.
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e. Security Level 2.5 participants continue to be offered up to 2 hours of “leisure time” in a treatment enclosure, while other inmates are in the common area of the unit. During this time, a participant can watch television, play games, socialize, or engage in other prosocial activities with other Security Level 2.5 participants and their assigned companions.
f. While being escorted on the secured-cell range of Program Unit, the participant’s hands will be restrained behind his back, using appropriate hand restraints. A Security Level 2.5 participant may enter the Program Unit’s recreation area and unsecured cell area without restraints. If a participant is escorted outside of the Program Unit, he will be restrained in the front with a martin chain and appropriate, double-locked hand restraints.
g. Anytime a Security Level 2.5 participant is removed from his cell, he is expected to back out of his cell and to be pat-searched. A minimum of two staff will conduct all escorts.
4. Security Level 3:
a. As a Security Level 3, the participant will reside on the unsecured cell area of the Program Unit.
b. The participant may have a cellmate if the Treatment Team determines it is appropriate based on his treatment needs.
c. The participant will participate in recreation with other Security Level 3 and Secure STAGES Companions in the group area of Delta-B recreation.
d. The participant will participate in individual and group treatment without the use of treatment enclosures or restraints.
e. The participant will be provided services, such as meals and phone calls, within the common area of the housing unit.
f. A Security Level 3 participant will not have a television in his cell.
g. Movement throughout the housing unit or institution will not require the use of restraints; however, movement throughout the institution requires a staff escort.
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5. Security Level 4:
a. As a Security Level 4, the participant will reside on the unsecured cell area of the Program Unit Program Unit.
b. Typically, the participant will be celled with one of his assigned companions, in preparation for transition to a regular mainline institution.
c. The participant is expected to attend recreation with General Population inmates; although he may also attend recreation in the group area of Delta-B recreation.
d. The participant will participate in all components of the Secure STAGES Program without the use of restraints or treatment enclosures.
e. The participant will access institution services in the same manner as companions, including attending mainline for meals.
f. The participant will not have a television in his cell.
g. Security procedures will be consistent with General Population inmates at the institution.
B. Referral & Eligibility for Security Level Advancement: The Program Coordinator will review each participant to determine eligibility for consideration for advancement to a less-restrictive security level in the Program. A participant may present issues concerning his security level during his 60-day treatment reviews with STAGES Psychology staff. A participant may also present issues concerning his security level during his 6-month Program Reviews with his Unit Team. Each of these reviews gives staff and inmates the opportunity to discuss issues in an open forum. Ordinarily, a participant must actively participate in and complete all programs recommended by the Treatment Team to be eligible for consideration for advancement to a less-restrictive security level in the Program. The participants who the Program Coordinator determines are eligible for consideration for advancement for a less-restrictive security level will be referred to the Committee for consideration.
C. Review Procedure:
1. A multi-disciplinary Secure STAGES Committee (Committee) will review each participant, at a minimum, every 90 days to determine whether the participant can safely function in a less-restrictive security level without posing a risk to institutional security and good order; posing a risk to the safety and security of staff, inmates, or others, including the participant
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himself; and/or posing a risk to public safety (see Attachment B, “Secure STAGES Security Level Evaluation Form”).
2. The Committee will, at a minimum, consist of the Warden, Associate Warden (Programs), Captain, Deputy Chief Psychologist, Program Coordinator, Unit Manager, Lieutenant, and Attorney Advisor.
3. Consideration for a different security level by the Committee is not a hearing, and the participant is not entitled to be present, to have counsel, to call witnesses, or to present evidence.
4. The determinations made by the Committee are made on a case-by-case basis.
5. Eligibility for consideration does not equate to appropriateness for advancement to a less-restrictive security level.
6. The factors the Committee may consider include, but are not limited to:
a. The participant’s conduct while housed at his previous institution and his current institution;
b. The participant’s behavior and conduct towards, and interaction with, staff and other inmates while at the previous institution and while in the Program;
c. The reason(s) the participant was designated to the prior institution; d. The participant’s criminal history; e. The participant’s involvement with criminal organizations, if any,
and the potential safety and security threat implicated by such involvement; f. The participant’s overall adjustment during his history of confinement; g. The institution’s safety and security needs, including the safety and security of staff; h. The safety and security needs of the participant; i. The safety and security needs of other participants and companions; j. The safety and security needs of the public; k. Progress toward treatment goals; l. Demonstration of skills learned in the Program; m. Responsiveness to treatment; and n. Any other relevant factor(s).
7. During the review, the Committee will ordinarily place an emphasis on a participant’s most recent conduct.
8. The final decision regarding a participant’s security level advancement is
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made by the Warden.
9. When the Committee decides whether to recommend that a participant’s security level change, written documentation will be completed outlining the rationale for that decision and will be placed in the participant’s treatment file. Each participant will receive verbal and written notification of the decision from the Program Coordinator (or designee). If the participant is denied advancement to a less restrictive security level, the written notification will include the following:
a. The reason(s) for denial, unless it is determined the release of this information could pose a threat to individual safety or institutional security, in which case that limited information will be withheld.
b. A notification that the inmate may appeal the decision through the Bureau’s Administrative Remedy Program.
10. The Program Coordinator (or designee) will also document the decision and discussion within the participant’s electronic PDS/BEMR record.
11. The Program Coordinator (or designee) will document the decision and discussion within the inmate’s electronic PDS/BEMR record and verbally notify the inmate of the Committee’s decision.
12. The denial of an inmate for security level advancement does not preclude the Committee for exercising their discretion to reach a different conclusion at a future review.
13. Provided the participant who was denied advancement continues to meet the eligibility requirements for security level advancement, the participant will continue to be reviewed at a minimum every 90 days.
D. Security Level Regression:
1. Participants may be moved to a more restrictive security level for the following reasons:
a. If the participant displays a pattern of behavior inconsistent with his security level demonstrating can no longer safely function in a less-restrictive security level without posing a risk to institutional security and good order; posing a risk to the safety and security of staff, inmates or others, including the inmate himself; and/or posing a risk to public safety.
b. If the participant is found guilty of committing prohibited act(s) by the UDC or DHO.
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2. The circumstances warranting consideration for regression may require the inmate to be immediately moved to a more restrictive security level.

3. The final decision regarding the regression of a participant to a more restrictive security level is made by the Associate Warden (Programs) in consultation with the Program Coordinator.

4. If a participant’s security level is regressed, a recommendation will be made to the Associate Warden (Programs) by the Program Coordinator, in consultation with Program Unit Lieutenant, as to which security level the participant will be regressed. The determination will be made on a case-by-case basis.

5. When the Associate Warden (Programs) decides a participant’s security level will be regressed, written documentation will be completed outlining the rationale for that decision and will be placed in the participant’s treatment file.

6. The inmate will receive verbal and written notice from the Program Coordinator (or designee). The written notice will include the reason(s) for the regression, unless it is determined the release of this information could pose a threat to individual safety or institutional security, in which case that limited information may be withheld. The notice will also notify the participant that he may appeal the decision through the Bureau’s Administrative Remedy Program.

7. The Program Coordinator (or designee) will document the decision and discussion within the inmate’s electronic PDS/BEMR record and verbally notify the inmate of his change of security level.

XI.

Psychology Treatment Program Achievement Awards:

A. In accordance with Program Statement 5310.16, Treatment and Care of Inmates with Mental Illness, the Program employs a token economy system. Program participants earn points by participating in mental health treatment, participating in recreation, completing activities of daily living, maintaining safety of self and others, encouraging others in a prosocial manner, etc. The Treatment Team, Unit Team, Lieutenant, and other Program Unit staff work together to award points on a daily tracking sheet posted on each participant’s door. If the participant engages in rule-breaking behavior, refuses to program, or otherwise becomes disruptive to the Program, the participant’s point sheet may be removed for the day at staff’s discretion and no points will be awarded for that day. Points are tallied each day and the participant is notified each week of how many points

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he has earned. Typically, the participants have an opportunity to spend points to purchase incentive award items weekly (e.g., additional food items, hygiene items, art supplies, games, etc). The Secure STAGES Participant Handbook provides a detailed description of how to earn incentive points, incentives available for purchase, and the cost of each incentive item.

B. The Privilege Incentive Program (PIP) is offered to all the participants who have commissary, phone, and/or visitation restrictions, provides incentives for inmates who are on prolonged disciplinary restrictions to participate in available programs and maintain clear conduct, furthering the mission of the Program. As inmates participate in the PIP, it is possible for inmates to earn some privileges that were suspended through the discipline process, although privileges cannot be restored completely. A goal of the PIP is to assist inmates by enhancing and promoting the Bureau’s reentry initiative which encourages them to build better community ties. The specifics of the PIP is as follows:

1. The PIP is four steps. All inmates start at Step 1. The types of available incentives are determined by the step.

2. Every participant enrolled in the Program who is on prolonged disciplinary telephone, visiting, and/or commissary restriction has the opportunity to demonstrate he may be afforded these privileges.

3. Participants demonstrating positive programming may be awarded the following incentives:

Step 1
2

Time Period 30 days meeting requirements
Incentives are for the next 30 days, or expiration of sanctions 60 days meeting requirements
Incentives are for the next 60 days, or expiration of sanctions

Incentive One (1) 15-minute phone call per month or $40 commissary purchase per month or One (1) social visit per month
Two (2) 15-minute phone calls per month or $80 commissary purchase per month or Two (2) social visits per month

90 days meeting requirements
3 Incentives are for the next 90 days, or expiration of sanctions

Three (3) 15-minute phone calls per month or $120 commissary purchase per month or Three (3) social visits per month

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120 days meeting requirements
4 Incentives continue as long as inmate meets eligibility criteria, or expiration of sanctions

Four (4) 15-minute phone calls per month or $160 commissary purchase per month or Four (4) social visits per month

4. Participants must demonstrate positive programming by meeting the following requirements:

a. Paying disciplinary fines; b. Maintaining clear disciplinary conduct; c. Participating in the Inmate Financial Responsibility Program, and/or
Encumbrance (50/50) Program; d. Maintaining a job with satisfactory work performance, if applicable; e. Active participation in and satisfactory completion of all programs
recommended by Unit Team and the Treatment Team; f. Completion of all ABE/GED, or satisfactory progress towards
obtaining a GED as determined by Education staff, or be exempt from the Literacy Program; g. Positive overall institution adjustment to include, but not limited to, personal hygiene, cell sanitation with established standards; h. Positive behavior and respectful conduct towards staff and other inmates; i. Attendance at all Treatment Teams; j. Active participation in group and individual treatment, as well as good progress towards treatment goals.

5. Participants will be reviewed by Secure STAGES Program staff and Unit Team every 30 days to determine their appropriateness to receive an incentive; with final approval being made by the Warden.

6. Participants who fail to meet the eligibility criteria at the review will return to Step 1. An inmate's failure to maintain clear conduct between 30 day reviews will result in the inmate returning to, or remaining at, Step 1.

7. Participants demonstrating positive programming, prosocial behavior, and no misconduct for 30 consecutive days may also be considered for an exception to their disciplinary sanction(s).
C. Pursuant to Program Statement 5330.11, Psychology Treatment Programs, the Warden or designee may approve other certain tangible incentives. The other individual and community incentives may be offered to recognize, reward, and encourage individual progress and to encourage a high morale for the larger treatment community. Additional program incentives may include, but are not limited to, any of the following:

1. Monetary Achievement Award

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2. Structured Program Activities

3. STAGES Resource Library

4.

- Tangible Incentives (e.g., books, notebooks, pencil pouches, mugs with
program logo, food and hygiene items that are not sold in commissary as

approved by the Warden)

5. Recommendation for transfer to an institution closer to permanent

residence (upon successful completion of the program) or an institution

that provides an additional beneficial treatment program.

XII.

Program Completion:

A. The completion of all three treatment phases is required before a participant will be considered for Program completion. The minimum time period to complete the Program is 12 months. However, there is no maximum time period for completion of the Program. Each participant’s individual needs determine the length of time, beyond the 12-month minimum, that he will remain in the Program.

B. Upon completion of the Program, the participants will be considered for an appropriate placement option where the individual can continue to practice skills and techniques learned throughout the Program and the setting from which they would most benefit. This placement could include, but is not limited to: transfer to a lower security STAGES Program; transfer to another appropriate institution, transfer to General Population at the current institution; or remaining on the Program Unit and becoming a Mental Health Companion. The consideration for transfer to another appropriate institution will be based on the specific treatment and security needs of the participant. While the ultimate objective of the Program is for the participant to complete the Program and transition to another institution, or release to a Residential Re-entry Center (RRC), there are some cases that may require continued placement in the Program Unit upon completion of the Program. For example, if it is determined that removal from the therapeutic environment may affect the participant adversely, the participant may continue to live in the Program Unit after completion.

C. If the participant is determined to be eligible for program completion and/or institutional transfer, the participant’s primary Psychologist prepares a Treatment Summary indicating the participant’s course of treatment, his therapeutic gains, conditions that increase his likelihood for success, and recommendations for future mental health providers, probation officers, and/or community resources, as applicable.

D. If the participant is determined to be ineligible for completion of the Program and there is time remaining on his sentence, he and his primary Psychologist will revise his treatment plan to address barriers to the completion of the Program. The participant will be encouraged to complete treatment activities that target these barriers. If the participant acquires skills to address these barriers, he will

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again be reviewed for completion of the Program and/or institutional transfer eligibility.

E. In the event a participant releases directly from the Program to an RRC, special accommodations for an escorted furlough may be warranted. Considerations for such accommodations will be reviewed on a case-by-case basis and are subject to the approval of the Unit Team and Executive Staff.

XIII.

Program Withdrawals: A participant may withdraw voluntarily from the Program and

receive a SENTRY code reflecting his withdrawal status.

A. The participant must submit a written request to the Program Coordinator to withdraw from the Program.

B. In response to a request to withdraw, the following will occur:

1. The Program Coordinator will provide a clinical intervention by meeting individually with the participant to discuss his concerns and the implications for withdrawal.

2. The Treatment Team will then meet to discuss the withdrawal request and assign two additional clinical interventions over a 7-day period to assist in motivating the inmate for treatment

3. The Treatment Team will properly document the meetings and assigned treatment interventions in PDS/BEMR.

C. If the participant maintains his withdrawal request, a memorandum will be forwarded to the Warden, with a copy sent to Unit Team (see Attachment D, “Change in Secure STAGES Program Status Memo”).

D. The Consolidated Legal Center for the Federal Correctional Complex and the Bureau’s Psychology Services Branch will be notified.

E. Upon completing the process of withdrawing from the Program, the inmate may be removed from the Program Unit.

F. Participants who were transferred from other institutions, and are unwilling to complete the Program, may be returned to the referring institution.

G. The inmate may reapply and receive reconsideration, based on clinical rationale, to return to the Program. The inmate may be placed on a wait list based on his clinical needs and availability of bed space in the Program.

XIV.

Program Incompletes: A participant may be moved to Incomplete status for various

reasons. Examples include, but are not limited to:

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A. Placement in Special Housing Unit (SHU) B. Removed from the institution on a WRIT C. Unforeseen redesignation
The reason for the incomplete will be documented in PDS/BEMR and does not mean the participant is a program failure.

XV.

Program Expulsion: Participants may be removed from the Program by the Program

Coordinator because of behavior disruptive to the degree that treatment is no longer

possible, such as assaulting staff or engaging in behavior that severely compromises

the treatment environment.

A. In response to such behavior, treatment staff will:

1. Meet with the participant to discuss his behavior or lack of progress. 2. Assign a clinical intervention, chosen to reduce or eliminate the behavior,
or to improve progress. 3. Inform the participant of the consequences of failure to alter his behavior 4. Properly document the meeting and assigned clinical interventions in
PDS/BEMR. 5. If clinically necessary, update the participant’s treatment plan to include
the new treatment intervention(s). 6. When appropriate, require the participant to discuss his targeted behavior
in the community.

B. Ordinarily, a minimum of three clinical interventions are employed to reduce or eliminate the treatment/community interfering behavior. If the disruptive behavior(s) or lack of progress continue, the Treatment Team, in collaboration with the Chief Psychologist, will decide if the participant may continue in the Program. If a participant cannot continue in the Program, the Program Coordinator will consult with the Bureau’s Psychology Services Branch regarding alternative treatment settings that can meet the needs of the participant. The Program Coordinator will also complete a Treatment Summary and make recommendations for a setting that can address the participant’s mental health needs.

C. If a participant disagrees with the decision to remove him from the Program, he has the right to appeal the decision through the Bureau’s Administrative Remedy Program.

D. The expulsion from the Program will not result in an automatic reduction of the inmate’s mental health care level.

E. An inmate may request Psychology Services at any time in the future, even if he has been expelled or voluntarily withdrew from treatment.

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XVI.

Secure STAGES Companions: A select group of high security inmates will be offered

an opportunity to reside in the unit and serve as Mental Health Companions

(companions) to the participants, as follows:

A. The primary objective of a companion is to enhance the “Community as Method” concept by providing supportive encouragement to participants and by demonstrating basic life skills in their own lives.

B. Ordinarily, one or two companions will be assigned to work with one participant. The decision on whether to assign a companion to work with a participant will be made on a case-by-case basis by the Treatment Team. The assignment of a companion will be based on the individual clinical need of the participant.

C. While the Program Coordinator is responsible for the selection, training, assignment, and removal of individual companions, the Program Coordinator will consult with the Deputy Chief Psychologist, Unit Team, Special Investigative Services, and institution Executive Staff.

D. The responsibilities of a companion are to:

1. Offer informal guidance and support the participants. 2. Provide basic assistance with Dialectical Behavior, social skills
assignments, criminal thinking errors, etc. 3. Demonstrate sound decision-making in their daily lives. 4. Interact with other inmates and staff in a pro-social manner. 5. Serve as a positive role model for participants.

E. The companions will be selected and trained consistent with Program Statement 5310.16, Treatment and Care of Inmates with Mental Illness, by the Program Coordinator. Inmates who demonstrate personal maturity and have made good institutional adjustment will be considered for this role. It is essential that companions have good communication, demonstrate good decision-making skills, and live within the rules of the program and the institution. The companions must demonstrate a positive attitude, be willing to assist program staff, and engage in productive activities in their own lives. The companions are not to demonstrate attitudes typical in the “prison culture” or engage in any behavior that undermines program objectives or participant progress. The role of the companion is supportive and not authoritarian or power oriented. The exploitation of any participant by a companion will not be tolerated.

F. The companions will receive weekly training and supervision from the Treatment Team on their role in the Program. Furthermore, companions may attend community meetings and other programming with their assigned participant to learn the appropriate skills with which to assist their participant as needed.

G. The companions will be housed in the unsecured cell area of the Program Unit.

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The companions will primarily be single-celled, but will be expected to cell with their assigned participant when the participant reaches Security Level 4. When on-duty as a companion, he will be expected to primarily attend recreation in the group area of the Program Unit recreation yard and interact with his participant in a manner consistent with the participant’s Security Level (i.e., through cell door, treatment enclosures, or in the common area of the housing unit). The companions access institution services in the same manner as General Population inmates.

H. Consistent with Program Statement 5310.16, the Program Coordinator may remove any companion from their role at the Program Coordinator’s discretion. The companions will be removed from their role and the Program Unit for failure to comply with Program rules. Companions will be considered for immediate removal when they have committed a prohibited act or violated confidentiality, but may also be removed from the role of a companion when the Program Coordinator determines that their continued placement in the Program Unit is counterproductive to the treatment community. If the companion disagrees with a decision to remove him, he has the right to appeal through the BOP’s Administrative Remedy Program.

XVII.

Program SENTRY Codes: The following Psychology Treatment Program (PTP) SENTRY Codes will be used to document participation in the Program:

CAT PTP PTP PTP PTP PTP PTP PTP PTP

AUTH BOP BOP BOP BOP BOP BOP BOP BOP

ASN STA WAIT S STA PART S STA COMP S STA INCP S STA FAILWS STA FAILES STA CADRES STA UNQU S

DISP DESC UWS STAGES SECURE PROG WAITING UPS STAGES SECURE PROG PARTICIPANT UCS STAGES SECURE PROG COMPLETED UIS STAGES SECURE PROG INCOMPLETE UFS STAGES SECURE PROG FAIL-WITHDR UFS STAGES SECURE PROG FAIL-EXPELL U1S STAGES SECURE PROG CADRE UUS STAGES SECURE PROG UNQUALIFIED

XVIII.

Discipline Procedures: Generally, inmate disciplinary action will be performed in accordance with the Program Statement 5270.09, Inmate Discipline Program, and Program Statement 5310.16, Treatment and Care of Inmates with Mental Illness.

A. Ordinarily, if a participant receives a 100- or 200- series incident report, the following may occur:

1. Participant will be placed in Administrative Detention status. 2. Participant may be regressed back to a Security Level 1. 3. Property allowance may be consistent with Administrative Detention
property restrictions for Special Housing Unit inmates. 4. Participant’s television may be removed until the DHO adjudicates the
incident report or until the television restriction sanction is removed.

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5. Participant may be placed on in-cell treatment if deemed necessary by the Treatment Team.
6. Participant may continue earning incentive points for appropriate behavior, but participation in the incentive award purchasing is at the discretion of the Program Coordinator.

If a participant is sanctioned to Disciplinary Segregation time, the Treatment Team will determine whether the participant’s involvement in out-of-cell programming should be modified. The participant ordinarily will not earn incentive points, participate in incentive award purchasing, or earn programming pay until the sanction is complete. When a participant is serving Disciplinary Segregation time, whether in SHU or in the Program Unit, he will continue to receive mental health care in accordance with his Mental Health Care Level.

XIX.

Program Participant Appeal Rights: An inmate may appeal any aspect of his

confinement or programming in the Program through the Bureau’s Administrative

Remedy Program as outlined in Title 28, C.F.R. Part 542 and Program Statement

1330.18, Administrative Remedy Program.

XX.

Staff Training: The Captain and Program Coordinator, or their designees, will provide

at least four hours of quarterly training to correctional and non-correctional staff

assigned to the Program Unit. Training will be based on a standardized curriculum

developed through the Psychology Services Branch.

XXI.

Inmate Monitoring Form: All participants’ activities, meals, and showers will be

recorded by the Officer In Charge (OIC) using the “Inmate Monitoring Form,”

Attachment C, as follows.

A. This form will be recorded every shift, of every day, from Sunday until Saturday. On Sundays, the OIC will print new forms for the upcoming week. The completed form will be forwarded to the Lieutenant, who will copy the Program Coordinator and the Unit Team for filing.

B. The following information will be filled out:

1. Date 2. Shift 3. Meals consumed (Breakfast, Dinner, Supper) 4. Showers (A minimum of 3 times per week) 5. Exercise (All exercise Inside (I) or Outside (O) will be documented, to
include the time frames (ex. 9:00 a.m. – 10:00 a.m. (O).) 6. Treatment/Group Time (All Treatment and Group Times will be
documented, to include the timeframes.) 7. Other hours out of cell time (ELL, Education, etc.) 8. Total hours out of cell time (This will consist of the total hours the
STAGES participants spent out of their cells.)

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9. Officer In Charge (OIC) Signature 10. Additional Comments, if applicable. DISTRIBUTION: FLX Supplements Directory Sallyport
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SECURE STAGES MONTHLY STATUS REPORT

Current Participants: Accepted (waiting for interview): Interviewed (waiting for transfer): Failed: Completed:

DATE: Current Mentors: Unassigned Mentors:

CURRENT PARTICIPANTS and COMPANIONS

Participant/ Reg. No. (Companion)

Entered STAGES/PRD

Comments

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Inmate Name/Reg. No.

STAGES COMPLETE UPDATES
Completion Date/Location

Comments

Mentor Name/Reg. No.

UNASSIGNED MENTORS
Last Day as Active Mentor

Comments

INMATES RECENTLY REMOVED FROM THE PROGRAM

Inmate Name/Reg. No.

Removal Date/Reason

Comments

INMATES APPROVED FOR SECURE STAGES PROGRAM

Inmate Name/Reg. No.

Status/Location

Comments

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PRE-STAGES INMATES PENDING INTERVIEW

Inmate Name/Reg. No.

Status/Location

Comments

INMATES INTERVIEWED AND NOT ACCEPTED

Inmate Name/Reg. No.

Status/Location

Comments

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FINAL CLIENT REVIEW DRAFT - 8/3/2016 SECURE STAGES SECURITY LEVEL EVALUATION FORM

Inmate Name __________________________ Current Security Level: 1 2 3 4 New Admission Factors considered: Conduct at Previous Institution and Current Institution
Reason Designated to Prior Institution
Criminal History
Involvement With Crime Organizations and Current Safety/Security Threat

Overall Adjustment During History of Confinement

Institutions Safety/Security Needs Safety/Security Needs of Inmates Safety/Security Needs of Other Inmates Safety and Security of the Public

Progress Toward Treatment Goals

Demonstration of Skills Learned in STAGES Program

Responsiveness to Treatment

Other Relevant Factors Security Level Decision

Level

Register Number __________________

123

4

STAGES Coordinator__________________________________ Captain ____________________________________________ Warden ____________________________________________

Date ________________ Date ________________ Date ________________

FLP 5330.11(2)B Steps Toward Awareness Growth and Emotional Strength (STAGES) Program Attachment B

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FCC FLORENCE
USP Florence, Colorado

Inmate Monitoring Form
SECURE STAGES

INMATE NAME:

REG. NO.:

TEAM/CASEWORKER:
DATE REC’D:
DATE REL:

TIME REC’D:
TIME REL:

UNIT:

CELL:

DATE

SHIFT

MEALS BDS

SHOWER

SUNDAY mm-dd-2014

MORNING DAY EVENING

MONDAY mm-dd-2014

MORNING DAY EVENING

TUESDAY mm-dd-2014

MORNING DAY EVENING

WEDNESDAY mm-dd-2014

MORNING DAY EVENING

THURSDAY mm-dd-2014

MORNING DAY EVENING

FRIDAY mm-dd-2014

MORNING DAY EVENING

SATURDAY mm-dd-2014

MORNING DAY EVENING

EXERCISE IN/OUT

TREATMENTGROUP TIME

OTHER HOURS OUT OF CELL

“TOTAL” HOURS OUT OF CELL

OIC SIGNATURE

EXPLANATORY NOTES:
Meals - Yes (Y); No (N); Refused (R) Ex: Exercise: Enter actual time period and inside or outside (i.e., 9:30/10:00 IN) (2:00/2:30 OUT) Treatment/Group Time: Enter actual time period in Group/Treatment (i.e., 8:00 to 11:00 GROUP) Other hours out of cell (ELL, Education, etc.) Document comments: i.e., Conduct, attitude, etc. Additional comments on reverse side must include date, signature, and title. OIC Signature: OIC must sign all record sheets each shift. (OIC - Unit Officer)

FLP 5330.11(2)B Steps Toward Awareness Growth and Emotional Strength (STAGES) Program

Attachment C Page 1 of 2

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FCC FLORENCE
USP Florence, Colorado

Inmate Monitoring Form
SECURE STAGES

INMATE NAME:
TEAM/CASEWORKER: DATE REC’D: DATE REL:
ADDITIONAL COMMENTS

TIME REC’D:
TIME REL:

DATE

REG. NO.: UNIT:

CELL:

SIGNATURE

TITLE

FLP 5330.11(2)B Steps Toward Awareness Growth and Emotional Strength (STAGES) Program

Attachment C Page 2 of 2

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U.S. Department of Justice Federal Bureau of Prisons
Federal Correctional Complex  Administrative Maximum Security Institution ; High Security Institution  Medium Security Institution  Minimum Security Institution
Florence, CO 81226
Date

MEMORANDUM FOR: WARDEN

THRU:

Associate Warden (Programs)

FROM:

Secure STAGES Coordinator

SUBJECT:

Change in Secure STAGES Program Status

Inmate NAME, Reg. No. 12345-678 arrived at USP Florence on Month Day, Year, for the purpose of voluntarily participating in the Secure STAGES Program. He had previously signed the BP-A0940 Agreement to Participate in Psychology Treatment Programs form on Month Day, Year. He also signed the Secure STAGES Participant Handbook on Month Day Year, acknowledging he understood his responsibilities as a program participant and committing to abide by the rules and procedures of the Secure STAGES Program as set forth in the Handbook.
On Month Day, Year, inmate NAME’s program status was changed to:
____ WITHDRAW
Reason:
_____ Inmate submitted a written request to withdraw from the Secure STAGES Program and, despite at least three clinical interventions by the mental health treatment team, refused to engage in treatment and continued to want to withdraw from the program.
_____ Other:

FLP 5330.11(2)B Steps Toward Awareness Growth and Emotional Strength (STAGES) Program

Attachment D Page 1 of 2

Case 1:12-cv-01570-RPM-MEH Document 382-4 Filed 11/16/16 USDC Colorado Page 38 of 38
FINAL CLIENT REVIEW DRAFT - 8/3/2016

____ UNQUALIFIED Reason: _____ Inmate does not meet criteria for the program. Specify:
____ EXPELLED Reason: _____ Inmate has committed an egregious institutional rule violation. Specify:

_____ The inmate’s presence is not conducive to the treatment community and/or repeatedly disrupts programming for other program participants. He has received at least three interventions from the mental health treatment team members to curb this type of behavior to no avail.

I have discussed this with the inmate and have made appropriate SENTRY changes. The inmate has been notified that if he has withdrawn or been expelled, he may apply for readmission and be reviewed for readmission, based on clinical rationale. He may be placed on a wait list based on his clinical needs and availability to bed space in the Program.

_______________________________ Inmate Name (Printed)/Signature

_______________________________________ STAGES Staff Member Name (Printed)/Signature

________________________________ Inmate Register Number

________________________________________ STAGES Staff Member Title

________________________________ Date

________________________________________ Date