O]c,,}13 $20 r

10Gb NOV -. q A G: I 0
UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES, ET AL."
Plaintiffs,
V.

: CIVIL NO. 3:03CV1352 (RNC)(DFM)

WAYNE CHOINSKI, ET AL., Defendants.

NOVEMBER (,2006

ORDER

In accordance with the auditing provisions, Sec. B.18 of the Settlement Agreement effective September 26, 2005, it is hereby ordered that the State of Connecticut shall reimburse plaintiffs' counsel, care of Tyler, Cooper & Alcorn, LLP, in the amount of $20,000.00 for attorneys' fees and $1,276.27 for litigation expenses for professional services rendered during the first year of auditing this agreement.

The State of Connecticut shall pay forthwith Tyler, Cooper & Alcorn, LLP, in the amount of $21,276.27.

SO ORDERED

f1J

Dated at Hartford, Connecticut, this ~ day of

,2006.

,,/'

R~e~) N. Chatigny

1
0')

Chief United States District Judge

 
 ·_. ,I
(J

o
il t, Ii Ii

. +-----------

Z"li"J·] ,e\LmI 'c)_b- /'\ (-i: 11l

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STATE OF CONNECTICUT OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES;
JAMES MCGAUGHEY, Executive Director, Office of Protection and Advocacy for Persons with Disabilities,

Civil Action No. 3:03CV1352 (RNC)

Plaintiffs,

v.

WAYNE CHOINSKI, Warden, Northern Correctional Institution, in his official capacity;
orovANNY GOMEZ, Warden,
Garner Correctional Institution, in his official capacity; and THERESA C. LANTZ, Commissioner, Connecticut Department of Correction,
in her official capacity;

Defendants.

September).t , 2005

ORDER OF DISMISSAL

Having considered the Joint Motion For Conditional Dismissal And Approval of

j Settlement, and the parties' Settlement Agreement attached hereto as Exhibit A, jt is
ORDERED that such Motion be, and is hereby, GRANTED;

fUII~ IT IS FURTHER ORDERED that all terms and conditions of the pa ties'
Settlement Agreement are hereby INCORPORATED INTO THIS ORDER as if set
f~lfill forth herein, and are hereby APPROVED, and the defendants are DIRECTED to

the obligations undertaken in the Settlement Agreement;

I

- 4-

( '.
" j

IT IS FURTHER ORDERED that, subject to the terms and conditions of this

Order, the above entitled action is hereby DISMISSED WITH PREJUDICE; and I

IT IS FURTHER ORDERED that this Court shall RETAIN JURISDICTION over

this action for the purposes of enforcing any of the terms or conditions of the pal1ies'
,
Settlement Agreement This jurisdiction shall be limited as set forth in Sections A.131 and

B.l7 of the Settlement Agreement.

)b SO ORDERED this

day of September, 2005.

R'obert N. Chatigny

Q /

Chief United States District Judge

- 5-

 
 -------._-------------

. .-----~-- ~I

T

CO~T UNITED STATES DISTRICT

ZiJiil y,:1 -. [: [J I: III

I
DISTRICT OF CONNECTICl ~ i

OFFICE OF PROTECTION AND

,
: CIVIL NO. 3:03Cj"lr52 (~C)(DFvl)

ADVOCACY FOR PERSONS WITH

DISABILITIES, ET AL." I Plaintiffs,

V.

WAYNE CHOINSKI, ET AL., Defendants.

JANUARY

,
2f07 !

I

ORDER

I

I

I
In accordance with the auditing provisions, Sec. B.17, of hfett ement Ag reement dated effective September 26, 2005, it is hereby ordered that the State f onrt cticut sha II ,reimburse

plaintiffs auditors Carl Fulwiler, M.D. in the amount of$4,100. 0 d . Eugenevliller in the

amount of $763.49 for professional services rendered during the Ir t ye r of auditi 19 this

agreement.

.

r The State of Connecticut shall pay forthwith Carl Fulwil r, L.Di in the am, )1U1t of$4,100.00
and E. Eugene Miller in the amount of $763.49.

SO ORDERED

rt

I

Dated at Hartford, Connecticut, this ~ day of Janua ry, 200

__ rt- ~/~l
Rllbert

N.~Ch4a4f~~v !~'_

~--
_( l

i

f

United States D' st ict Jl dge

------

----,.--.It-I-.-lI-L..,,r--rj-.----.
- -----~~~- -

 
 Case 3:03-cv-01352-RNC Document 145 Filed 09/11/08 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STATE OF CONNECTICUT OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES;
JAMES MCGAUGHEY, Executive Director, Office of Protection and Advocacy for Persons with Disabilities,

Civil Action No. 3:03CV1352 (RNC)

Plaintiffs,

v.

WAYNE CHOINSKI, Warden, Northern Correctional Institution, in his official capacity;
GIOVANNY GOMEZ, Warden, Garner Correctional Institution, in his official capacity; and
THERESA C. LANTZ, Commissioner, Connecticut Department of Correction, in her official capacity;

Defendants.

September 10, 2008

AMENDMENT TO PARAGRAPH B.9. OF THE MARCH 8. 2004 SETTLEMENT AGREEMENT

Paragraph B.9. of the Settlement Agreement, entitled "Observation" shall be

amended to read as follows:

Any prisoner at NCI who remains on Observation for more than 72 hours shall be

transferred on an emergency basis to GCI; provided, however, that this limit may be

exceeded due to exigent circumstances, limited to cases where security concerns

outweigh the therapeutic benefits of transfer. This determination shall be made jOintly

by the Warden of NCI and DOC's Director of Mental Health Services. Each inmate held

beyond 72 hours shall receive such additional and meaningful services as may be

necessary to hasten the resolution of the mental health concerns that lead to placement

on Observation. Prisoners in Observation shall be treated in compliance with NCCHC

standards governing use of restraints and seclusion.

1

Case 3:03-cv-01352-RNC Document 145 Filed 09/11/08 Page 2 of 3

~~~~/~ B BYe ./~ 1.-.- ~~---

Tyler Cooper & Alcorn, LLP 555 Long Wharf Drive, 8th Floor P.O. Box 1936 New Haven, CT 06509-0906 Tel. No. 203.784.8200 Fax. No. 203.777.1181 E-Mail: bsolnit@tylercooper.com

Ann E. Lynch, Esq. Steven R. Strom, Esq. Assistant Attorneys General Office of the Attorney General 110 Sherman Street Hartford, CT 06105 ATTORNEYS FOR DEFENDANTS

Nancy B. Alisberg, Esq. Office of Protection & Advocacy 60-B Weston Street Hartford, CT 06120 Tel. No.: 860.297.4300
Fax. No.: 860.566.8714 E-Mail: nancy.alisberg@po.state.cl.us

Eric Balaban, Esq. ACLU National Prison Project
915 15th Street, NW, ih Floor
Washington, D.C. 20005 Tel. No.: 202.393.4930 Fax. No.: 202.393.4931 E-Mail: ebalaban@npp-aclu.org

David J. McGuire Esq.
American Civil Liberties Union Foundation of Connecticut 32 Grand Street Hartford, CT 06106 Tel. No.: 860.247.9823-Ext. 211 Fax. No.: 860.728.0287 E-Mail: dmcguire@aclucl.org ATTORNEYS FOR THE PLAINTIFF

2

Case 3:03-cv-01352-RNC Document 145 Filed 09/11/08 Page 3 of 3

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing has been mailed this 10th day of

September, 2008, to the following counsel of record:

Terrence M. O'Neill, Esq. Ann E. Lynch, Esq. Steven R. Strom, Esq. Assistant Attorneys General Office of the Attorney General 110 Sherman Street Hartford, CT 06105 Attys. for Defendants.

Nancy B. Alisberg, Esq. Office of Protection & Advocacy 60-B Weston Street Hartford, CT 06120 Tel. No.: 860.297.4300 Fax. No.: 860.566.8714 E-Mail: nancy.alisberg@po.state.cl.us Attorney for Plaintiffs.

Eric Balaban, Esq. ACLU National Prison Project 915 15th Street, NW, 7th Floor Washington, D.C. 20005 Tel. No.: 202.393.4930 Fax. No.: 202.393.4931 E-Mail: ebalaban@npp-aclu.org Attorney for Plaintiffs.

David J. McGuire Esq. American Civil Liberties Union Foundation of Connecticut 32 Grand Street Hartford, CT 06106 Tel. No.: 860.247.9823-Ex1. 211 Fax. No.: 860.728.0287 E-Mail: dmcguire@aclucl.org Attorney for Plaintiffs.

FC00003623V001.doc
3

 
 Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STATE OF CONNECTICUT OFFICE :

OF PROTECTION AND ADVOCACY

:

FOR PERSONS WITH DISABILITIES; :

JAMES MCGAUGHEY, Executive

:

Director, Office of

:

Protection and Advocacy for :

Persons with Disabilities,

:

:

Plaintiffs,

:

:

v.

:

:

WAYNE CHOINISKI, Warden,

:

Northern Correctional

:

Institution, in his official :

capacity; GIOVANNY GOMEZ,

:

Warden, Garner Correctional :

Institution, in his official :

capacity; and THERESA C.

:

LANTZ, Commissioner,

:

Connecticut Department of

:

Correction, in her official :

capacity,

:

:

Defendants.

:

CASE NO. 3:03CV1352(RNC)

RULING ON PLAINTIFFS' MOTION In August 2003, the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities ("OPA") and its executive director, James McGaughey, commenced suit pursuant to 42 U.S.C. § 1983 against the Warden of the Northern Correctional Institution ("NCI"), Wayne Choinski; the Warden of the Garner Correctional Institution ("Garner"), Giovanny Gomez; and Commissioner of the Connecticut Department of Correction ("DOC") Commissioner, Theresa Lantz, in their official capacities. The parties entered into a settlement agreement. Pending before the court is the plaintiffs'

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 2 of 17
"renewed motion for an order allowing access to prisoner health records." (Doc. #86.) The plaintiffs seek an order permitting the plaintiffs, their counsel and their consultant access to the health records of prisoners housed at NCI and Garner in order to monitor the defendants' compliance with the settlement agreement. For the reasons that follow, the motion is granted in part and denied in part. I. Background
The following background is necessary in order to place the plaintiffs' request in context.
Parties OPA was created by the Connecticut legislature to further the State of Connecticut's "special responsibility for the care, treatment, education, rehabilitation of and advocacy for its disabled citizens." Conn. Gen. Stat. § 46a-7. It is authorized to investigate suspected abuse or neglect and to pursue administrative, legal and other remedies on behalf of individuals with mental illness. Conn. Gen. Stat. § 46a-11; 42 U.S.C. § 10805. It serves as Connecticut's protection and advocacy system for purposes of the Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C. § 10801(b)(2). NCI is Connecticut's only level 5 maximum-security facility for adult male inmates. It has a highly structured three phase administrative segregation program. Phase I is the most restrictive
2

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 3 of 17
of the three phases and lasts a minimum of six months. During this time, inmates spend virtually all their time in their cell. Garner, also a state prison, is the designated mental health facility for offenders with significant mental health needs.
Claims The plaintiffs allege in their complaint that the conditions of confinement for prisoners with mental illness at NCI and Garner cause the prisoners to suffer and exacerbate their mental illness in violation of the Eighth and Fourteenth Amendments. The plaintiffs claim that mentally ill prisoners in NCI receive disciplinary charges for behavior that is symptomatic of their mental illness. Such conduct, in turn, causes these prisoners to remain in Phase I, the conditions of which likely exacerbate their mental illness. (Compl. ¶20.) As a result of NCI's oppressive conditions and inadequate mental health services, prisoners become mentally ill or their mental illness worsens. (Compl. ¶25.) The allegations regarding Garner are similar to those aimed at NCI. Like prisoners in NCI's Phase I, the plaintiffs say, inmates in certain mental health units at Garner are subject to nearly constant cell confinement and enforced idleness, conditions that exacerbate their mental illness. (Compl. ¶28.) The plaintiffs further allege that at Garner and at NCI (1) there are frequent uses of force by staff against mentally ill prisoners, including cell extractions and use of restraints and (2) mentally ill prisoners
3

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 4 of 17
often receive disciplinary charges for behavior that is caused by their mental illness. (Compl. ¶29.)
Settlement Agreement After the lawsuit was commenced, the parties engaged in settlement negotiations. On March 8, 2004, the parties entered into a comprehensive settlement agreement resolving all claims. The settlement was subject to approval by the district court and entry of a final order and judgment. According to its terms, the settlement agreement, which lasts three years, became effective when the court entered an order of dismissal incorporating the agreement. (Settlement Agreement ¶¶A.6, A.7, B.17.) The settlement agreement resulted in an overhaul in the treatment of inmates with mental illness housed at NCI and Garner. For NCI inmates, the parties agreed that, inter alia, the Connecticut Department of Mental Health and Addiction Services ("DMHAS") would provide a diagnostic assessment. (Settlement Agreement Appendix B.) Inmates identified by DMHAS's evaluation as seriously mentally ill were to be removed from NCI within ten days of DMHAS's report, absent exigent circumstances. (Settlement Agreement ¶B.3.) A prisoner being considered for transfer to NCI for placement in administrative segregation must be evaluated before transfer to determine whether the inmate is seriously mentally ill. (Settlement Agreement ¶B.4.) In the event that a pre-transfer evaluation is not conducted, an evaluation by a licensed doctor-
4

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 5 of 17
level clinician must be completed by the end of the third business day after the inmate's transfer to segregation. (Id.) If the prisoner is found to be seriously mentally ill, he will not be kept at NCI's administrative segregation program unless the inmate falls into a "dangerousness exception." (Settlement Agreement ¶B.4.) Prisoners confined in segregation at NCI must be evaluated not less than every 90 days to determine whether their mental health is being adversely affected by confinement. (Settlement Agreement ¶4.a.) Prisoners who remain in Phase 1 for more than 120 days must be evaluated by a doctor-level clinician to determine whether the inmate's progress through the phased system is being impaired by mental illness. (Settlement Agreement ¶12.)
At Garner, the parties agreed to institute certain procedures for prisoners housed in units designated for the mentally ill. The settlement agreement provides that prior to a planned use of force, a clinical intervention must be attempted by a qualified mental health provider to persuade the inmate to cease the behavior that led to the planned use of force. (Settlement Agreement ¶7.) Before a Class A disciplinary report is issued to a prisoner, a qualified mental health professional must be consulted. (Settlement Agreement ¶8.) The consultant will be asked to express an opinion (1) whether the behavior for which the disciplinary report is given is a result of the prisoner's mental illness and (2) whether disciplining the prisoner would aggravate his mental illness. If the practitioner
5

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 6 of 17
answers in the affirmative to either question, the disciplinary report will not be delivered to the prisoner and must be dismissed, unless the Warden directs otherwise in writing. (Settlement Agreement ¶8.)
The settlement agreement also provides for changes at both facilities on mental health staffing, employee training, the administration of psychoactive medication, and confidentiality of mental health services.
The parties put into place a monitoring procedure to assess the defendants' compliance. The settlement agreement provides that the plaintiffs and defendants each appoint a mental health consultant. (Settlement Agreement ¶B.17.) The two consultants were to develop an audit instrument to evaluate the defendants' compliance with the mental health sections of the settlement agreement. The consultants' sole function is to review compliance with the settlement agreement. (Settlement Agreement ¶B.17.) To discharge this function, the parties agreed to give the consultants continued access to NCI and Garner to allow them to conduct private confidential interviews with inmates and staff, and review certain documents. (Settlement Agreement ¶B.17.)
The parties could not agree on how the plaintiffs' mental health consultant would be given access to the prisoners' health
6

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 7 of 17
records.1 They included a provision in the settlement agreement that they would submit the issue to the court. (Settlement Agreement ¶B.17.)
In June 2004, after the Connecticut state legislature approved the settlement agreement, the plaintiffs sought a court order to give their consultants and attorneys access to the health records of NCI and Garner prisoners. (Doc. #37.) The defendants opposed the motion, arguing that the request violated the inmates' privacy rights and plaintiffs had to produce releases signed by inmates to obtain the medical records. (Doc. #39.) In an on-the-record conference, the court (Chatigny, C.J.) suggested that the plaintiffs begin by attempting to secure releases from inmates and conducting the audit using health records of those inmates who executed releases. (Doc. #60, tr. 4/28/05.)
Subsequently, the parties amended the settlement agreement to permit them to dismiss the case and the court to retain jurisdiction to rule, inter alia, on the issue of disclosure of inmate health records. Specifically, the parties agreed that
[w]ith respect to the one time ruling on the issue of the disclosure of inmate health records to the consultants, the plaintiffs may file such a motion only on one occasion and shall file it with the court no later than 30 days after the receipt of the mental health auditors' report issued upon the completion of the first audit. Any such motion shall be limited to requesting court-
1The issue only concerned the plaintiffs' consultant because the defendants' consultant had access to the health records. See footnote 3 infra.
7

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 8 of 17
ordered disclosure of health records. (Amendment to ¶A.13, dated September 21, 2005.)
On September 26, 2005, Chief Judge Robert N. Chatigny granted the parties' motion for conditional dismissal and approval of settlement and incorporated into the court's order the terms and conditions of the parties' settlement agreement.2 (Doc. #75.) According to the terms of the settlement agreement, this marked the effective date of the settlement agreement. (Settlement Agreement ¶A.6.)
Monitoring Compliance with the Settlement Agreement Thereafter, the plaintiffs' mental health consultant, Carl Fulwiler, M.D., Ph.D. and the defendants' mental health consultant, Cassandra Newkirk, M.D., performed the first audit. The plaintiffs' consultant, Dr. Fulwiler, was not permitted to review health records for inmates who had not executed a release authorizing disclosure of the inmate's medical records. The defendants' consultant had access to these records, although it does not appear that Dr. Newkirk reviewed them for purposes of the audit.3 The consultants' report, dated April 17, 2006, set forth their findings for the time
2The dismissal of the case terminated the plaintiffs' pending motion (doc. #37) regarding disclosure of the inmates' health records.
3The defendants maintain that their consultant, Dr. Newkirk, does not need a release to examine inmate health records because she is a "business associate" under the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq. The plaintiffs do not dispute this contention.
8

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 9 of 17
frame of September 16, 2005 through December 2005. Of the thirtythree areas reviewed in the audit, the consultants found nine areas of noncompliance and eleven areas of partial compliance.
The consultants agreed that the requirement of obtaining releases for mental health records posed significant obstacles. Not only is the plaintiffs' consultant unable to review medical records for individuals who do not sign a release but the names and other identifying information of these individuals are redacted on monthly reports and/or logs the consultants use in conducting the audit. Both consultants expressed concern that some of the most severely disturbed inmates, particularly those with paranoid symptoms, are the most likely to refuse to sign a release. Both consultants said that paranoid inmates are more likely to incur disciplinary infractions and accumulate extended sentences in segregated housing as a result of their mental illness. Initially, eleven seriously mentally ill inmates were transferred to NCI's administrative segregation program under the dangerousness exception. Of those, four refused to sign consent forms. By June 2006 (after the consultants' initial report), the number of mentally ill inmates transferred to NCI's administrative segregation program had increased to twenty. Of those, nine refused to sign releases authorizing disclosure of their medical records. (Doc. #95, Gallagher Aff. ¶3; Doc. #99, Fulwiler Decl. ¶3.)
The consultants also are charged with auditing the DOC's
9

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 10 of 17
compliance with the settlement agreement provision that inmates who remain in Phase 1 of the administrative segregation program at NCI for more than 120 days undergo a thorough mental health evaluation to determine if their progress through the phase system is impaired by mental illness. (Settlement Agreement ¶12.) For the months of April and May 2006, the latest data in the record, nine prisoners were in Phase 1 for more than 120 days. Six of the nine declined to sign releases. (Doc. #99, Fulwiler Decl. ¶4.) II. Discussion
The plaintiffs seek a court order granting the plaintiffs, their counsel and their expert consultants access to the health records of prisoners housed at NCI and Garner.4 (Doc. #86 at 3.) They contend that disclosure is necessary to effectuate the goals of the settlement agreement because without disclosure they are unable to evaluate the defendants' compliance with the settlement agreement. In support of their request, they submit declarations of plaintiffs' consultant, Dr. Fulwiler, who avers that because he cannot review the inmates' medical records, he is "unable to ascertain with a reasonable degree of medical certainty whether the audit [he] performed completely evaluated defendants' compliance with the Settlement Agreement." (Doc. #87, Fulwiler Decl. ¶10.)
The defendants agree that the requirement that individual
4The plaintiffs' request does not contemplate releases or notice to the inmates.
10

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 11 of 17
inmates sign releases authorizing disclosure of their health records is a time consuming process and, even when done, ultimately excludes certain materials from review by the plaintiffs' consultant. However, they maintain that the releases are necessary because inmates have a constitutional right to confidentiality of their medical information. The defendants contend that the disclosure of medical information would violate this right. They further assert that to the extent that disclosure includes inmates' communications with mental health treaters, such disclosure is precluded by the psychotherapist-patient privilege set forth in Jaffee v. Redmond, 518 U.S. 1 (1996).
A. Constitutional Right to Privacy The plaintiffs acknowledge that their request implicates a constitutional right to privacy but contend that the right is not absolute and under the facts and circumstances of this case, is outweighed by a countervailing need for limited disclosure. The plaintiffs emphasize that they are attempting to vindicate important federal constitutional rights of the inmates. They suggest a protective order to provide that the records would be used only for the audit and subsequently destroyed. "Although the right to privacy is one of the less easily delineated constitutional guarantees," Statharos v. New York City Taxi and Limousine Com'n, 198 F.3d 317, 322 (2d Cir. 1999), the Supreme Court held in Whalen v. Roe, 429 U.S. 589 (1977) that it
11

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 12 of 17
encompasses "the individual interest in avoiding disclosure of personal matters." Id. at 599. Pursuant to Whalen, the Second Circuit recognized a "constitutional right to privacy in personal information" and held that "the right to confidentiality includes the right to protection regarding information about the state of one's health." Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994) (Plaintiff "has a right to privacy (or confidentiality) in his HIV status, because his personal medical condition is a matter that he is normally entitled to keep private."). See, e.g., O'Connor v. Pierson, 426 F.3d 187, 201 (2d Cir. 2005) (holding that plaintiff had a protected privacy right in his medical records); Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999) ("We now hold, as the logic of Doe requires, that individuals who are transsexuals are among those who possess a constitutional right to maintain medical confidentiality.").
"Yet this confidentiality interest is not absolute, and can be overcome by a substantial government interest that outweighs the right to privacy." Nassau County Employee "L" v. County of Nassau, 345 F. Supp. 2d 293, 302 (E.D.N.Y. 2004). See O'Connor, 426 F.3d at 201 ("That [plaintiff] has a constitutionally protected privacy interest in his records does not, however, mean that he need never disclose them; it means that he need not disclose them unless the [defendant] has a sufficient interest to justify its request."); Statharos v. New York City Taxi & Limousine Commission, 198 F.3d
12

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 13 of 17
317, 323 (2d Cir. 1999) ("This confidentiality interest is not absolute, however, and can be overcome by a sufficiently weighty government purpose."); Doe v. City of New York, 15 F.3d 264, 269-70 (2d Cir. 1994) ("[T]he city's interest in disseminating information . . . must be 'substantial' and must be balanced against [plaintiff's] right to confidentiality."); Grosso v. Town of Clarkstown, No. 94 Civ. 7722, 1998 WL 566814, at *10 (S.D.N.Y. Sept. 3, 1998) ("The right to privacy in medical records or personal information is a conditional right that requires a determination of whether the state's interest in disclosing the records is sufficiently substantial to overcome the individual's interest in confidentiality."); Doe v. Marsh, 918 F. Supp. 580, 585 (N.D.N.Y. 1996) ("The government may use information covered by the right of privacy if it can show that its use would advance a substantial state interest and that the use is narrowly tailored to meet the legitimate interest.")
On the existing record, the court finds that the state interest in disclosure is substantial and outweighs the burdened privacy right. OPA, as it is statutorily authorized to do, is seeking to protect the civil rights of persons who are mentally ill in an environment in which they are particularly vulnerable. There is a strong public interest in ensuring that prisoners are receiving appropriate mental health treatment, that they are not subject to punishment as a result of their illness and that they are not living
13

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 14 of 17
under conditions - such as prolonged isolated confinement - that can cause and/or worsen mental illness without appropriate monitoring. The plaintiffs have demonstrated that the requirement of obtaining releases imposes too great an impediment upon their implementing these objectives. The consultants, who are working together as a team, need equal access to information to make the monitoring process work. Because of the inability to obtain releases, OPA cannot audit effectively the areas of fundamental concern that led to the lawsuit and settlement agreement.5 See, e.g., doc. #87, Fulwiler Decl. ¶7 (stating that the refusal rate for seriously mentally ill inmates who are transferred to NCI's administrative segregation program "preclude[d] any meaningful audit").
Disclosure of the requested information is sought by professionals whose purpose is to monitor compliance with protocols and procedures designed to provide adequate treatment for mentally ill persons. Importantly, these professional are obligated to keep the information confidential.6 See Barry v. City of New York, 712
5The court explored with the parties the alternative of using pseudonyms. According to the defendants, the burden of implementing such a system would be enormous and simply not feasible. (Tr. 2/16/07 at 56-57.)
6The settlement agreement provides that "any health records ordered to be disclosed by the court shall be used solely to evaluate compliance with th[e] agreement and all copies of health records would be destroyed upon termination of th[e] agreement." (Settlement Agreement ¶B.17.) The agreement also provides that all the consultants' reports shall remain confidential and shall not be disclosed publicly. (Id.)
14

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 15 of 17
F.2d 1554, 1561 (2d Cir. 1983) ("'[T]he degree of intrusion stemming from public exposure of the details of a person's life is exponentially greater than disclosure to government officials.'")
B. Jaffee v. Redmond The court turns to the defendants' claim that the plaintiffs' motion implicates the federal common-law privilege established by the Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996). The defendants argue that the inmates whose records the plaintiffs seek have a privilege prohibiting the disclosure of their communications with mental health treaters. (Doc. #39 at 16.) In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court considered whether statements that the defendant police officer made to a licensed social worker in course of psychotherapy, and notes taken during their counseling sessions, should be protected from compelled disclosure in a federal civil action brought by the family of the suspect whom the defendant officer shot. The court concluded that they should and recognized a privilege protecting confidential communications between psychotherapist and patient. Although declining to "delineate [the] full contours" of the psychotherapist privilege, id. at 18, the court described the privilege as protecting "the confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment . . . from compelled disclosure under Rule 501 of the Federal Rules of Evidence." Id. at 15. The court stated that
15

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 16 of 17
the psychotherapist-patient privilege is rooted in the imperative need for confidence and trust. . . . Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.
Id. at 10 (internal quotation marks and citation omitted). The court
held "that the federal privilege should also extend to confidential
communications made to licensed social workers in the course of
psychotherapy." Id. at 15. Lastly, the court determined that the
privilege is absolute. The court, in rejecting a balancing
approach, stated
Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. . . . [I]f the purpose of the privilege is to be served, the participants in the confidential conversation must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.
Id. at 17-18 (internal quotation marks and citation omitted). The
Supreme Court noted, however, that the psychotherapist-patient
privilege, like other testimonial privileges, may be waived. Id.
16

Case 3:03-cv-01352-RNC Document 115 Filed 03/30/07 Page 17 of 17
at 15 n.14. The plaintiffs argue, and the defendants do not disagree, that
records subject to the privilege do not encompass the entirety of the inmates' health records but rather, such documents comprise a discrete subsection of those records that can be segregated out from disclosure. As noted, the privilege is not subject to balancing and there has been no waiver. The defendants assert that to the extent the inmates' health records contain material that is privileged under Jaffee, such communications should not be disclosed. The court agrees. The plaintiffs' request for medical records other than Jaffee privileged material is granted. Records that fall within the Jaffee privilege shall not be disclosed. III. Conclusion
For these reasons, the plaintiffs' "renewed motion for an order allowing access to prisoner health records" (doc. #86) is granted in part and denied in part. Any disclosure shall be governed by a protective order that the records shall be kept confidential, used solely to evaluate compliance with the settlement agreement and destroyed upon termination of the settlement agreement. See footnote 6.
SO ORDERED at Hartford, Connecticut this 30th day of March, 2007.
_________/s/__________________ Donna F. Martinez United States Magistrate Judge
17

 
 Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 1 of 14

UUNNIITTEEDD SSTTAATTEESS DISTRICT COURT DDIISSTTRRIICCTT OOFF CONNECTICUT

SSTTAATTEEOOFFCCOONNNNEECCTITCIUCTUTOFOFFICFEICOEFOF : PPRROOTTEECCTTIIOONN AANNDD ADVOCACY
FFOORR PERSONSS WITH DISABILITIES; JJAAMMEESS MMCCGGAAUUGHEY, EExeecutiivvee
DDiirreeccttoorr,, OOffffiiccee ooff PPrrootteeccttiioonn aanndd AAddvvooccaacy ffoorr Persons withh DDisabilitiiees,

CCiivvililAAccttioionn NNoo.. 33::0033CV1352 ((RNC)

PPlaintiffs,

vV. .

WAYNE CHOINSKI, Warden,
Northern Correctional IInnssttiittuuttiion, inn his official capacity; GIOVANNY GOMEZ, Warden, Garner Correctional IInnssttiittuuttiioonn,, inn his official capacity; aannd THERESA C. LANTZ, Commissioner, Connecticut Deppaarrttmmeenntt ooffCCoorrrreeccttiioonn,, in her official ccaappaacciittyy;

Defendants.

:

August 5, 2008

MOTION FOR CCOONNTTEEMMPPTT

Thee ppllaintifffss respeccttffuullyly reqquueesstt thhee entryy oof aann oorrddeerrhhooldldiningg ddeefefennddaannts inin

conntteemmpptt ffoorr faaiilluurree too ppay ppllaaiinntiffss'' eexperrtt cconssuullttaanntsts. . InInssuuppppoorrtt oof fththisismmotoitoionn,,

plaintiffs sstate the ffoollloowwiinngg::

11.. The SSeettttlleemmeent AAggrreeeemmeent eenntteerred iinn tthhiiss mmaattteerrpprroovviiddeess inin SSeeccttiioonn BB1177

that tthhee ddeeffeennddaanntts ""sshhaalll rreeimimbbuurrssee eeaacchhooffpplalainintitfifsfs''ccoonnssuultlatannttssininaannaammoouunnt tnonot toto

exceed aa ggrraanndd ttootal ooff$$4400,,000000..0000ppeerryyeeaarrffoorreeaacchh oofftthheetthhrreeeeyyeeaarrsstthhisisaaggrreeeemmeennttisis iinn effectt ((a yyeeaar sshhaall bbee eeaacchh 1122mmoonnththppeeriroiodd fofolllolowwiinng tthhee eeffefeccttiivve ddaattee ooffththisis

aaggrreeeemmeenntt)).."" AA ccooppyy oofftthhisispprroovvisisioionn ooffththeeSSeetttltelemmeennttAAggrreeeemmeennttisisaattatacchheeddhheerreettoo aas EExxhhibibitit11.. OORRAALL AARRGGUUMMEENNTT IISS NNOOTTRREEQQUUEESSTTEEDD

11

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 2 of 14

22.. PPlalainintitfiffsfs hhaavvee twoo ccoonnssuultanttss:: EE.. EEuuggeennee Millleerr isis theeiirr ccuustoddyy

ccoonnssuullttaanntt aanndd CCaarrll EE.. FFuullwwiilleerr,, MM..DD,, Phh..DD.. iss tthheeiir mmeennttaall hheealtthh ccoonnssuullttaanntt..

33.. OOnn MMaarrcchh 266,, 220088,, ppllaaiinntiffss ssuubbmittteedd MMr. MMiilllleerr''ss MMaarcrchh 2211,, 20088

iinnvvooicicee iinn tthhee amount of $787.50 to defense ccoouunsel. AA ccooppyy of thee billl and cover letter

iiss aattttaacchheedd hereto ass Exhibit 2.

44.. AAfftteerr seveerraall remindeerrss by plaintiffs to ddoo ssoo,, ddeeffeennsseeccoouunnsseellssuubbmmititteedd

tthhiiss bbiilll ttoo tthhiiss CCoouurrtt oonn MMaayy 2222,, 22000088 ffoorr tthhee eennttrryy ooff aann oorrddeerr tthhaatt iitt bbee ppaaidid.. TThhaattoordrdeerr

iissssuueedd oonn MMaayy 2288,, 22000088.. A ccoopy ooff this order is attached hheereetoo as EExhibit 3.

55.. DDeessppitiete reeppeeaatteedd inqquuiirryy by ppllaaiinntiffs, ddeeffeennddaants hhaavvee nneegglelecctteedd aanndd

refuusseedd to comply with this oorrddeerr aannd ttoo ppaayy tthhiiss bbilill..

6.. OOnn Junee 110, 220008, ppllaaiinntiffs ssuubbmittedd tto ddeeffeennse ccoouunnsel tthhee JJuunnee 22,,

2000088 billl of DDr. FFuullwwiilleer inin ththee aammoouunntt ooff$$55,2,28800..0000. Dessppiittee repeateedd rreequests bbyy

plaiinnttiifffss,, deeffeennddaannttss hhaavvee ffaailieledd ttoo subbmmiitt thhiiss billl to the CCoourt ffoor eennttrry ooffaann oorrddeerrooff

payment. A copy ooff this bbiilll wwiitth ccoovveerrlelettteerrisisaattatacchheeddhheereretotoaassEExxhhibibitit44. .

7.

Plaintiffs hhaave raised the nnon-paymenntt of these bbills iinn aaJJuunnee 1188,,22000088

eemmaaiill,, aa July 10, 22008 vvooicemail, aa JJuullyy 2222, 22000088 vvooiciceemmaaiill,, aannddaaJJuulyly2244,,22000088eemmaaili.l.

Defendants hhaave nnoott rreessppoonnddeedd ttooaannyyooffththeesseeininqquuiririeiess..

8. Accordinnggllyy,, plaintiffss respectfuullllyy requesstt that tthis CCoouurrtt eenntteerraannoordrdeerr

holding defendants iin ccoonntteemmpt aanndd ddiirreeccttiinngg tthheemm totoimimmmeeddiaiatetelyly issue aa ccheck iinn tthhee

aamouunntt of $$77887.500 mmade ppaayyabllee tto EE.. EEuuggeennee MMiilllleerr,, aa cchecckk iin tthhee aammoouunnt ooff

$$5,280.00 mmade ppaayyable ttoo CCaarrll EE..FFuulwlwilielerr,,MM.D.D.,.,PPhh.D.D.,.,papyayfuftuutruerecocnosnuslutaltnatnst'sb' ibllsills

wwithhiinn tteen ddaayyss oof fsusbumbmisisssioionn, aannddpapayyplpalianintitfiffsfs aa rereaassoonnaabbllee aattornneeyyss' ' fee inin

ccoonnnneeccttiioonn wwiitthh tthhee bbrriinnggiinngg oofftthhiissmmoottioionnininaannaammoouunntttotobbeesseettbbyyththeeCCoouurrt.t.

22

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 3 of 14

0

0

THE PLAINTIFFFFSS STATE OF CONNECTICUT OFFICE OF PROOTTEECCTTIIOONN && AADDVVOOCCAACCYY,,eettaal.l.
BBY Ya:o~ Benn A.. Solnit - CT0000229922 Tyler Cooper && Alcorn, LLLLPP 555 Long WhaarrffDDrriivvee,, 88thth Floor P.O. Box 1936 New HHaavveen, CT 0066550099--0099006 Tel.. No.. 220033..778844..88200 Fax.. No. 203.777.1181 E-Mail: bbssoolnlniitt@@ttyylleerrccooooppeerr..ccoomm

Nancy BB. AAllisberg-ct213211 Office of Protection && AAddvvooccaaccyy 60-B WWeesstton SSttrreeeett Haarrttffoorrdd,,CCTT 0066112200 Tel.. No.:: 886600..229977..44330000 Faxx.. Noo..:: 886600..556666..8877114 E-Mail:: nnaannccyy..aalliissbbeerrgg@po.state.ct.us
Eric Balaban ACLU National Prison PPrroojjeecctt 91511551thhSStrtreeeet,t, NNWW,, 7th Floooorr Waasshhiinnggttoonn,,DD.C.C. . 220000005 Tel.. No..:: 220022..339933..44993300 Faxx.. No.:: 220022..339933..44931 E-Maill:: eebbaallaabbaann@npp-aclu.org
Davidd JJ.. McGuuiirree -- cctt2277503 American CCiivil LLiibbeerrttiieess UUnniioonn Foundation of Connecticcuutt 32 Grand Street Haarrttffoorrdd,, CCTT 0066110066 Tel.. No.:: 886600..224477..99882233--EExxtt.. 22111 Faxx.. Noo..:: 886600..772288..0287 E-Mail:: ddmmccgguuiire@acluct.org ATTORNEYS FOR PLAINTIFFS

3

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 4 of 14
0

ORDER

Havingg failedd to comply with this CCoourt's MMaayy 2288, 22000088 oorrddeerraannddhhaavviningg ffaaiilleedd ttoo

respoonndd to plaintiffs' repeated iinnqquuiirriieess rreeggaarrddiinngg tthheeppaayymmeennttoof fccoonnssuultlatannt tfefeeessaaggrereedd

to between the parties in the SSeettttlleemmeenntt AAggrreeeemmeenntt entered aas ann order ooff tthhiiss CCoouurrt,

this Court hereby hhoolds ddeeffeennddaannttss iinn ccoonntteemmpptt.. Saidd contempt may be purged bby the

following:

1.. Defendants' iimmmmeeddiiaattee issuance of a cchheck mmaade ppaayyaable ttoo EE.. EEuuggeennee

Miller in the amount of $$778877..5500 aanndd ddeelliivveerreeddbbyyoovveerrnnigighhttccoouurireierrtotoccoouunnsseel lfofor rpplalainintitfiff;f;

2..

Defendaannttss'' iimmmmeeddiiaattee issuance of aa cchheecckk mmaaddee ppaayyaable ttoo CCaarrll EE..

Fulwiler, M.DD..,, Ph..DD.. in the aammount ooff $$55,,22880.00 aannd ddeelliivveered bbyy oovveerrnniigghhtt ccoouurriieerr ttoo

plaintiffs' ccoouunnsseell;;

3.. DDeeffeennddaanntst's'ppaayymmenetntoof f ffuuttuurere ccoonnssuultlatanntst's'bbilillsls wwiitthhinin teenn ddaayss ooff

submission; aand

4.

TThhee imimmeeddiaiatete ppaayymmeennt t ooff $$_ _ __ to plaintiffs' counsel as

reasonable attorneys' fees incurred iin bbrriinnggiinngg tthhiiss mmoottioionn..

It is so ORDERED.

Dated at Hartford, CCoonnnneeccttiiccuutt _ _ _ _ _,220008.

Robert N. Chatigny Chief United States District Judggee

4

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 5 of 14

0

0

CERTIFICCAATTEE OOFF SSEERRVVIICCEE

Thhiiss is to ccertifyy thatt a ccoopy ooff tthhee ffoorreegoingg has bbeenn maileedd thiiss 5th dayy off

August, 2008, to the ffoolllloowwiinngg ccoouunnsseellooffrreeccoorrdd::

Terrence M.. O'Neill, EEsq. Ann E. Lynch, Esq. Steven R. Strom, Esq. Assistant Attorneys Geeneral Office off the Attorney General 110 Sherman Street Harrttffoorrdd,,CCTT 006611005 Attys. for Deffeennddaants.

Nancy B. Alisberg, EEssq. Office off Protection && Advocacy 60-B Weston SSttrreeeett Harrttffoorrdd,,CCTT 006611220 Tel.. No..:: 886600..229977..4433000 Faxx.. NNoo..:: 886600..55666.8714 E-Maiill:: nnaannccyy..aalliissbbeerrgg@@ppo.state.ct.us Attornney for Plaintiffs.

Eric Balaban, EEsq. ACLU National Prison Project
915 1155`thh Street, NW, 7i`hh Floor
Washhiinnggttoonn,,DD.C.C.. 220000005 Tel. No..:: 220022..339933..44993300 Fax. No.: 220022..339933..449931 E-Mail: eebbaallaabbaann@@nnpppp--aacclluu..oorrgg
Attorney for Plaintiffs.

David J. McGuire Esq. American Civil Liberties Union Foundation off Connecticutt 32 Grand Street Harrttffoorrdd,,CCTT 0061006 Tel. No.: 886600.2.24477.9.9882233--EExxtt..221111 Fax.. Noo..:: 886600..772288..00228877 E-Maiill:: ddmmccgguuiirree@@acluct.org Attorney forr Plaintiffs..

(1.-~
Benn AA.. Soollnniitt -- CCTO0O02922

5

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 6 of 14
•

UNIITTEEDD SSTTAATTEESS DDISTR[ICT COURT DISSTTRRIICCTT OOFF CCOONNNNEECCTICUT

STAATTEE OOFFCCOONNNNEECCTTIICCUUTTOOFFFFICICEEOOFF : PROTECTION AND ADVOCACY FOR PERSONS WWITH DDIISSAABBIILITIES;
JAMES MCGAUGHEY, Executive Directorr,, Office ooffPPrrootteccttioonn aannd Advocacy forr Perrssons with Disabilities,
Plaintiffs,
vV..
WAYNE CHOINSKI, Warden, Northern Corrrectional IInnssttiittution, in his official ccaapacity;
GIOVANNY GOMEZ, Warden, Garrnerr CCorrrreeccttiional Institution, in his officiiaal ccaappacitty; aand
THERESA C. LANTZ, Commissioonneerr, Connecticcuutt DDeeppaarrttmmeenntt ooffCCoorrrreeccttioonn,, in her official ccaappaacciittyy;;
Defendants.

Civil Action No. 33:0:033CCVV13522 ((RRNNCC)) MARCH 8, 2004

SETTLLEE~MIEENNT AGREEMENT
A. GENERAL PROVISIONS
1. This settlemenntt agrreeeemmeennttiiss eenntteerreedd iinnttoo bbyy thhee parrttiieess too resolve all off tthhe claims mmaade iinn tthhiiss aaccttiioonn,, wwhheerrein the plaintiffs, Office off Protection and Advocacy ffoor Perrssoonnss wwiitth DDiissaabbiilliittiieess("("OOPPAA"n )) and JJaammes MMccGGaauugghheeyy,, brriinngg aa nnuummbbeerr off ccllaaiimms relattiinngg to the coonnddittioonnss ooffccoonnffinineemmeenntt off innmmaatteess housed at the NNoorrtthheerrnn CCoorrrreeccttiioonnaall Institution and Garmnerr CCoorrrreeccttiioonnaall Ilnstitution.
2. In entering this aaggrreement, the parties aagree aand rreepprreesent tthhaatt tthhiiss aaggrreeeemmeenntt is ffair,, reasonable and adequate to pprotectt the interests of all parties aand, wwiitthh rreessppeecctt ttoo thee ppopulattiioonn seerrvveedd by the pplainttiifffss,, thhaatt in tthhe ooppiinnion ooff OOPPAA, eenntteerriinngg ininttoo ththisis agreement is in tthe bbeestt iinntteerreests ooffpprisoners and ddeettainees with mmeennttaall iilllnneessss,, wwhhoommaayy develop mmental illness, oorr wwhho aarre aat rriisk ooffddeevveellooppiinngg mmeennttal iillllnneessss,, wwhhooaarreeccoonnffinineedd
EXHIBIT 1

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 7 of 14
aannyy commmmuunniiccaattiioonnss wwiitthh thee Court without tthhee eexxpprreessss aaggrreeeemmeennt ooffaalllppaarrtiteiess.. No ccoonnssuultlatnatntsshhaallll eennggaaggee iinn aany eexx papratretecocmommmuunniiccaationnss wwith aannyy ccoouurrtt hhaavviinngg jurisdiction to enforce the terms of this agreement. Upon suubbmmisissioionn oof aan aappppropprriiaatete iinnvvooiiccee fforr sseerrvices aannd eexxppeennses, CDOCe sshhall rreeiimmbbuurrsseeeeaacchh oof thhee plainnttiiffffss'' cconnsuulttaannttss inn an amounntt nott to exceedd aa ggrraand total off $40,000 per yearr ffoorr eeaacchh of the thrreeee yearrss this agrreeemmeenntt iss in effect ((aa yyeeaarr shall be eachh 12 month pperriioodd following the effecttivvee ddaate oofftthhiiss aaggrreement). IInnththeeeevveenntttthhaatt aa neuttrraall eexperrtt is requuirreedd ttoo arrbbiittrraatteeddiissppuutteess between the ccoonnssuullttaannts aass sseettffoorrtthh iinnththiiss paarraaggrraapphhaannddaass set forthh in ppaarragraapphh A.8.,, CDDOOCC shall rreeimburse eeach ssuucch nneeuuttral expert in an amount not to exceeeedd $15,000.00 per year. 188.. Attorneys' Fees and Costs The defendaannttss shalll pay to the ppllaainnttifffs tthheessuummooff$$117777,8,85500.0.000foforraattotorrnneeyyss''ffeeeessaanndd $13,,113311..1166 ffoorr ccoossttss inccuurrrreedd iinn thiiss case to ddaate. Any future aawards ooffaattttoorrnneeys' ffeees shall be calculated in accordance with the hourlyy rraattes eessttablished pursuant tto tthhe Prison Litigation Reform Act and limited to $200,,000000 aayyeeaarraasssseettffoorrtthhininPPaarraaggrraapphhAA1122aabboovvee for attorney's ffees aand $5,00000 aa yyeeaarr for pllaaiinntitfiff'fssmmoonnitiotorirninggaannddeennfoforcrceemmeenntteexxppeennsseess.. 19. Approval of LLegislaature Required Prior to submission off this agreement to tthhee CCoouurrtt ffoorr aapppprroovvaall,, tthheeppaarrttiieessaacckknnoowwlleeddge that the defendants' authority to enter iinnttoo tthhiiss SSeetttlleemmeenntt AAggrreeeemmeenntt iiss ccoonnttiinnggeenntt uuppoon thee Geneerraall Assemmbbllyy''ss apprroovvaall of this aaggrreeement pursuant to CCoonn. GGen. SSttaat. §§33-125a. The defenddaannttss haavvee noott obtainedd the GGeeneral AAssembly's aapppprroval aatt tthhee ttiimmee they and their attorneys signed this agreement, and will nnoott hhaavvee tthhee GGeenneerral AAsssseemmbbllyy's's apppprroovvaall unnttiill suucchh time aas ththeeGGeenneerraall AAssseemmbbllyyhhaassapapprorovveeddththisisagargereemmeenntt bbyy resolutionn,, or the thirty day ppeeriod ffoorr tthheeGGeenneerraallAAssseemmbblylytotoccoonnssidideerrththisisagagrereemmeenntt has elapsed, as described in Conn. Gen. Stat. §§ 33--11225a.
1199

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 8 of 14
•

PLAINTIFFS,. Office of Prrotection && Advocacy
~",'b.(t~ JaeSM'ij.JfcGaughe~~ Executive Director
NNaanncc~AAlliisberg ,c Office ooffPPrrootteecctts! && Advocacy Federal Bar No. ct2132211 60-B Weston Street Haarrttffoorrdd,,CCTT 0066120 Tel. (860) 297-4300 Fax (860) 566-8714 E-Mail:: nnaannccyy..aalliissbbeerrgg(@c po.staatee.cctt..uuss
I", f cy3 o. Ben A. Solnit Tyler, Cooper & Alcorn, LLP Federal Bar No. ct00292 205 Church Street New Haven, CT 0066550099--119910 Tel. (203) 784-8200 Fax. ((220033)) 777777--11181 E-Maaiill:: ssoollnniitt@@ttyylleerrccooooppeerr..ccoomm
David C. Fathi Federaall Bar No. ct22477 ACLU National Prrison Projectt
.~ 3~"3'3 -:m:t 15'thh Street, NW, SSuuiittee662200<<.t. i'\^.)^tA:'t\))
Washington, DC 220000005 Tel. (202) 393-4930 Fax. ((220022)) 339933--44931 E-Mail: dfathi@R&j)--aacclluu.o.orragc 'r-o\'\1>';E')^~\
c-
Erin Boggs Federal Baarr No. ct22 Interim Legal Directorr Connecticut Civil Libeerrttiieess UUnniioonn FFoouunnddaattiioonn 32 Grand Street Harttffoorrdd,, CCTT 006611006 Tel. (860) 247-9823 xx221I1I FFaaxx ((886600)) 772288--00228877 E-MMaaiill:: eboggs(@accccluu.oorg

DEFENDANTS, Wayne Choinski, eett aal1..

.~~ theeresa C. Lantz

3Q

Commissioonneerr ooffCCoorrrection

RICHARD BLUU1MvfEENNTTHHAALL

ATTIOORRNEY GENERAL

P. ~t--f BY: ":ev&ref
Terrefhicce MM.. OO''Neill

Q riJt'<!(j,L(lf:J--

Assistant Attorney General

Federal Bar No. ct10835

I110 Shernmnan Street

Hartforrdd,, CCT 006611005

Tel. (860) 808-5450 Fax ((886600)) 880088--55559911

E-Mail: tteerrrernecnec.oen.eoinll(ea·)lp.sot.sattaete..cctt.uss

. Lynch

Assistant Atto y eneral

FeeddeerraallBBaarrNNol ct 326

110 Sherman SS
Hartford, cCTr 00661105

Tel. (860) 808-5450 Fax (860) 808-5591

E-Mail: annnn..1lynncchh@(ppoo..sttate.ct.us

L/l,~

St en Re. S~ trom~

7

Assistant Attorney General

Federal BarrNo. 01211

110 Sherman Street
Hartforrdd,, cCrT 00661105

Tel. (860) 808-5450 Fax (860) 880088-5591

E-Maill:: sstteevveenn..ssttrroomm(@aipo.state.ct.us

2?0

Case 3:03-cv-01352-RNC Document 133

•Filed 08/05/08 Page 9 of 14 •

/

Marchh 26,, 2008

Benn AA. SSoiInit Coo--CChhaaiirr,, ULitiggatioon GGrroouupp Tyler CCooooppeerr &&AAllccoorrnn, LLLLPP 55555 LLoonngg WWhhaarrffDDrrivivee,,88thth FFlloooorr
P.. O0.. BBooxx 119936 Neeww HHaavveenn,, CT 0~ 6509-0906
Phhoonnee:: 2033..7844..820055 Faxx: 220033.7.m77..1111881
bssoollniti@t@ttyylelercrcoooopperr..ccomrn wwwwww..ttyyllerrcooper.com

Terrence M. OO''NNeeiillll, EEssqquuiire Assisttant Atttoorrnney Genneerraall Office of the Attorney Generraall 110 Sherrman SSttrreeeett Hartffoorrdd,, CCoonnnneeccttiiccuutt 06105
Re: State ooff CCoonnnneeccttiiccuutt OOffffiicee ooffPPrrootteeccttiioon && AAddvvooccaaccyy,. eettaall
~ V.
Warrdenn WWaayynneeCChhooiinnsskki,. eett aall. Civv.. Noo.. 3:03 CV 11335522 ((RRNNCC))
Deaarr TTeerrrryy::
In accccoorrddaannccee wwitihth SSeeccttioionn BB..1177 of tthhee SSeetttltelemmeennt AAggrreemenntt,, II enclloossee thhe March 221, 22000088ininvvooiicceeooffoouurrccuussttooddyy eexxppeerrt, EE.. EEuuggeenneeMMililleerr,, foorr paymmeenntt byy youurr clliieennt.t. PPleleaassee lelettmmeekknnoowwififyyoouuhhaavveeaannyyqquueesstitoionnss abouutt itt.. IfIfnnoott,,ppleleaasseerereqquueessttccoouurrttaapppprroovvaall ooff ppaayymmeenntt ooff $787.50 tto MMrr. Miller. Thanks.
Best regards.
Veerryy ttrruly yyours,

BAS:frc Enclosures

!
Ben A. SSoollnniit

EXHIBIT 2

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 10 of 14
•

,INVOICE

March 21, 2008

fro:

Ben A. SSolnnit, EEssqq..

Tyleer Coooppeerr&& AAlcorn, LULP

55 Long Whaarrf Drive

Neew Haven, Connecticcuutt 0066509

Foorr:

Professionaal services rendered as the designated eexxppeerrt

on custody issues for DO.P. &&A. iin thee ccaassee oft

G0..PP.. & A. vv. CChhooiinnsskkii,, aettaalI..

Specihfication of Seerrvviicceess::0022112211i0'08
03J/0033/I08 0331/141/008 031/117108
0331/191/008 00331201//08

2.00 hours RReevvieiewwooffddrraaffttaauuddiitt bbyy DDOOCC;; rreeppoorrtt prep.; phonnee conference writh DOC;
.25 hour Review of casee mmaatteerriiaalls; .25 hour Review of case mmaatteerriiaals;
2.000 hhoouurrss RReeviveiewwoof fddraraftftaauudditittetexxtt;;rreeppoorrttpprreepp;; phone conference with DDOOCC;;
.25 hour Phone conference wwiith counseel; .50 hour Reeview of finalizzed reportt;; rreeviieew of case
maateerial.

5.25 hours

Billlaabllee Houurs:

5.25

Rate:

$150..0000 ppeerr hhoouurr

FFeeee::

$787.50

EExxppeennsseess::

NNoone

AMOUUNNTTDDUl£E.:

$787.50

Please RReemmiittTToo.:

E. EEuuggeennee MMiilllleerr
SUuite 309 250011 Q Streeett,, NW Washinggttoonn DDCC 22C0'0JX0J77

Thank you.

E. EuuggeenneeMMiilller

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 11 of 14 Case 3:03-cv-O01 -RNC Documeenntt 113311 Filed 05 /2008 Page 11 ooff11

UNITED STATES DISTRICT COURT

DISTRIlCT OF CONNECCTTIICCUUTT

OFFICE OF PPRROOTTEECCTTIIOONN AANNDD ADVOCCAACCYYFFOORRPPEERRSSOONNSSW~ITTHH DISABILITIES, ET AL.,",
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: CIVIL NO.. 3:03CV1352 (RNC)(DFM)

WAYNE CHOINSKI, ETT AL.,, Defendants.

MMAAYY , 2,2000088

ORDEER

In accordance with the auditingg pprroovviissiioonnss,, SSeecc. BB..1177,, oofftthhee SSeettttlleemmeennttAAggrreeeemmeenntteeffffeeccttiivvee September 26,,2005, iitt iiss hheerreebbyy oorrddeerreeddtthhaatttthheeSSttaatteeooffCCoonnnneeccttiiccuuttsshhaalllrreeiimmbbuurrsseepplalainintitfifffss auditor E. Eugene MMiilllleerriinntthheeaammoouunnttooff$778877..5500ffoorrpprrooffeessssiioonnaallsseerrvviciceessrerennddeerreedddduurrininggththee third year off auditing this aagreement.
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SO ORDERED
U Dated at Hartford, Connecticcuutt,, tthhiiss L_f__ dadyayofoMf Mayay, ,22000088.

iii11 RRoobbeerrttN. Chaattiggnny,, USODJ

Roobteernt N.. Chatig-ny

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Chieeff United States Diissttrrict Judge

EXHIBIT 3

• Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 12 of 14

June 10, 2008

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Terrence M. OO''NNeeiillll, EEssqquuiirre Assisttant AAttttoorrnneeyy General Office of the Attorney Genneerraall 110 Sherrman SSttrreeeett Hartffoorrdd,, CCoonnnneeccttiiccuutt 06105
Re: State off Coonnnneeccttiicut Office off Prrotection & Advocacy., eett aall vV.. Warden WWaayynneeCChhooiinnsski., eett aal!. Civ.. No. 3:03 CCVV 11335522 ((RRNNCC))

Dear Terry:

In accccoorrddaanncceewwitihth SSeecctitoionnBB.1.177 off tthhe SSeettttlleemmentt AAgreemmeenntt,, II enclosse the June 2, 22000088ininvvooiiccee ooff oouurr mental heaalltth exxpert, CCaarrll EE.. FFuullwwiiller, M.D., PPhhD, ffoorr ppaayymmennt bby yyour clliieenntt.. PPlleeaasseelelettmmeekknnoowwififyyoouuhhaavveeaannyy qquueessttioionnssaabboouut titi.t. IfIfnnoot,t,plpeleaasseererqequueessttcocouurrttaapppprroovvaall ooffppaayymmeenntt ooff $5,280.00 to DDr. FFuutlwiler. Thanks.

Best regards.

BAAS:frc Enncllosurrees

Very truly yours,
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Ben A. Solnitt

EXHIBIT 4

Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 13 of 14

CAARRLL EE.. FFULWWIILLEERR, ,MMDD,, PPhhDD
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PPSSYYCHHIIAATTRRYY

INVOICE

June 2, 2008
Atttnn:: Attttoorrnneeyy NNaannccyy B. Alliissbbeerrg Office off Protection anndd Advocacy Statte off Connecticuutt 600B8 WWeessttoonn SSttrreeett Hartford, CT 0066112200--115551
Re: OPA vv. Choinski. Civ. Act. NNoo.: 33::0033CCVV1352 (RNC)
Services ffoorr iinnvvooiicceeppeerriiooddFFeebbrruuaarry tthhrough May 22000088
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Total due:

$5,280 $5,280

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Carl B8.. Fulwiler, MD, PhD
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0 0 Case 3:03-cv-01352-RNC Document 133 Filed 08/05/08 Page 14 of 14

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 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STATE OF CONNECTICUT OFFICE OF :

PROTECTION AND ADVOCACY

:

FOR PERSONS WITH DISABILITIES; :

JAMES MCGAUGHEY, Executive

:

Director, Office of Protection and

:

Advocacy for Persons with Disabilities, :

:

Plaintiffs,

:

:

v.

:

:

WAYNE CHOINSKI, Warden,

:

Northern Correctional Institution,

:

in his official capacity;

:

GIOVANNY GOMEZ, Warden,

:

Garner Correctional Institution,

:

in his official capacity; and

:

THERESA C. LANTZ, Commissioner, :

Connecticut Department of Correction, :

in her official capacity;

:

:

Defendants.

:

Civil Action No. AUGUST 6, 2003

COMPLAINT
1. This action is brought pursuant to 42 U.S.C. §1983, seeking declaratory and injunctive relief on behalf of prisoners and detainees with mental illness who are confined at Northern Correctional Institution (NCI) in Somers, Connecticut, and Garner Correctional Institution (GCI) in Newtown, Connecticut. Plaintiffs allege that, by knowingly confining these prisoners and detainees under conditions which are certain to cause great suffering and exacerbation of their mental illness, defendants are inflicting cruel and unusual punishment on
1

these prisoners, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and subjecting these detainees to punishment, in violation of the Fourteenth Amendment to the United States Constitution.
JURISDICTION 2. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. 1331 because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. §1343(a)(3) because this action seeks to redress the deprivation, under color of state law, of civil rights. 3. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Fed. R. Civ. P. 57. 4. This Court has jurisdiction to grant injunctive relief pursuant to Fed. R. Civ. P. 65.
VENUE 5. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391(b) because defendants reside in this district, and because a substantial part of the events and omissions giving rise to plaintiffs’ claims occurred in this district.
PARTIES 6. Plaintiff State of Connecticut Office of Protection and Advocacy for Persons with Disabilities (OPA) is responsible for providing protection and advocacy services to individuals with disabilities pursuant to Conn. Gen. Stat. § 46a-7 to 11. It is also allotted federal funds pursuant to the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), and is thereby obligated to similarly provide protection and advocacy services for
2

persons with mental illness pursuant to 42 U.S.C. §§ 10801 – 108027. Under PAIMI, OPA is also authorized to investigate suspected incidents of abuse and neglect and to pursue administrative, legal and other remedies on behalf of individuals with mental illness wherever programs for such individuals are operated within the State of Connecticut or within the state’s control. 42 U.S.C. § 10805.
7. The interests OPA seeks to vindicate by bringing this lawsuit – the protection of the rights of mentally ill persons – are central to OPA’s purpose. Plaintiff OPA is charged with the statutory responsibility to represent the interests of persons with mental illness in state institutions, who also have standing to sue in their own right.
8. Plaintiff James McGaughey is the Executive Director of OPA. He is authorized to investigate and bring suit on behalf of persons with disabilities pursuant to Conn. Gen. Stat. § 46a-11.
9. Defendant Wayne Choinski is the Warden of Northern Correctional Institution. As such, he is the legal custodian of all prisoners housed at NCI, and is responsible for the safe, secure, and humane housing of those prisoners. At all times relevant hereto, he has acted under color of state law. Defendant Choinski is sued in his official capacity.
10. Defendant Giovanny Gomez is the Warden of Garner Correctional Institution. As such, he is the legal custodian of all prisoners housed at GCI, and is responsible for the safe, secure, and humane housing of those prisoners. At all times relevant hereto, he has acted under color of state law. Defendant Gomez is sued in his official capacity.
11. Defendant Theresa C. Lantz is Commissioner of the Connecticut Department of Correction (CDOC). As such, she is the legal custodian of all prisoners housed in CDOC
3

facilities, and is responsible for the safe, secure, and humane housing of those prisoners. At all times relevant hereto, she has acted under color of state law. Defendant Lantz is sued in her official capacity.
STATEMENT OF FACTS
12. The State of Connecticut operates a “unitary” correctional system, meaning that there is no separate jail system to house pretrial detainees. Thus, CDOC facilities house both convicted prisoners and pretrial detainees. Pretrial detainees are presumed to be innocent and are protected by the Due Process Clause of the Fourteenth Amendment against any conditions that constitute punishment.
13. Northern Correctional Institution (NCI), located in Somers, Connecticut, is the highest-security prison operated by the CDOC. It houses approximately 475 male prisoners, both pretrial detainees and convicted prisoners. Almost all of the prisoners at NCI are subject to a three-level “phase” program. A prisoner must progress sequentially through all three phases in order to be sent to a less restrictive institution. If a prisoner in Phase II or III receives a disciplinary charge, or is deemed by prison staff to have a “poor attitude” or to “lack motivation,” he can be returned to Phase I, where he must begin the process over again.
14. Garner Correctional Institution (GCI), located in Newtown, Connecticut, houses approximately 800 male prisoners, both pretrial detainees and convicted prisoners. Approximately 300 of its beds are designated for prisoners with moderate to severe mental illness, including an 18-bed acute unit (IPM) and a 22-bed Intensive Mental Health Unit (IMHU) for disruptive prisoners with mental illness. NORTHERN CORRECTIONAL INSTITUTION (NCI)
4

Conditions of confinement 15. Prisoners in Phase I at NCI are subjected to social isolation and sensory
deprivation that approach the limits of human endurance. They are entombed in windowless concrete cells virtually 24 hours a day, seven days a week.
16. The cell doors at NCI are solid steel; the only opening is a small food port below waist level. One small wall slit provides limited outside light into the cell. Prisoners in Phase I are allowed out of their cells only to shower and for recreation. For many of these prisoners, “recreation” has involved being placed in full body restraints for the entire time the prisoner is in the recreation area. These conditions make any kind of recreation or exercise impossible, and have led many prisoners to choose to forego recreation, and simply remain locked in their cells 24 hours a day.
17. Phase I prisoners are deprived of virtually all social contact and environmental stimulation. They are allowed no congregate activity and very few possessions. There are no educational or other programs. Visiting is non-contact and is severely restricted. Because of illiteracy or mental illness, many prisoners are unable even to read or write. Thus, they spend months, or even years, in a state of almost total idleness. Effect on the mentally ill
18. Mental illness is prevalent at NCI. Previously healthy prisoners become mentally ill as a result of confinement under these conditions. With regard to prisoners who are already mentally ill upon their arrival, conditions at NCI cause serious and sometimes catastrophic deterioration in their mental health. As a result, numerous prisoners at NCI hear voices and are obsessed with suicidal thoughts; others swallow razors and other objects,
5

smash their heads into the wall, compulsively cut their flesh, attempt suicide by drug overdose, attempt to hang themselves, and otherwise attempt to harm or kill themselves.
19. Most prisoners at NCI are housed with a cellmate in a cell measuring approximately seven by twelve feet. For mentally ill prisoners, the constant presence, in extremely close quarters, of a cellmate they have not chosen is extremely stressful, and may exacerbate the prisoner’s paranoia, anxiety, or other symptoms of mental illness. Because prisoners with mental illness are perceived by other prisoners as weak, they are at increased risk of victimization by their cellmates. Many mentally ill prisoners at NCI are terrified of their cellmates; some have been physically attacked or sexually assaulted by their cellmates.
20. Many mentally ill prisoners receive disciplinary charges for behavior that is a symptom of their mental illness. Therefore, they are retained in Phase I for months or even years at a time. The more severe a prisoner’s mental illness, the more likely he is to become stuck in Phase I, where the harsh conditions will exacerbate his mental illness still further. Mental health care
21. Despite the overwhelming need, mental health services at NCI are systemically inadequate. There is insufficient staffing to meet the needs of mentally ill prisoners. As a result, both monitoring and treatment of mentally ill prisoners are inadequate. Although many mentally ill prisoners are prescribed powerful psychotropic medications with potentially dangerous side effects, they are rarely, if ever, seen by a psychiatrist. When mental health staff do speak with prisoners, it is frequently done at cell-front, within earshot of other prisoners and staff. Many prisoners refuse to speak with mental health staff under these conditions because they fear harassment and victimization if other prisoners learn that
6

they are suicidal or suffering from other mental health problems. Thus, these cell-front interviews are worse than useless; because of the complete lack of confidentiality, a prisoner may tell mental health staff that he is fine, when he is in fact paranoid, hallucinating, or contemplating suicide.
22. Serious mental illness often goes undiagnosed at NCI. In many cases, a prisoner who has been diagnosed as seriously mentally ill before coming to prison, has received years of treatment in the community for that mental illness, has been admitted to a psychiatric hospital, and has been placed on powerful psychotropic drugs is nevertheless deemed by prison mental health staff to be merely “malingering” or “manipulating.” As a result, these prisoners do not receive the treatment they need for their mental illness. Punishment of the mentally ill
23. Because many prisoners with serious mental illness are believed to be merely “malingering,” manifestations of their mental illness are interpreted by prison staff as willful misconduct and are punished accordingly. Some prisoners have received disciplinary charges for suicide attempts or self-mutilation that is a symptom of their mental illness; others have received disciplinary charges for merely reporting to staff that they feel suicidal.
24. In other cases, prisoners who report feeling suicidal are stripped naked and tied down in four-point restraints. This harsh and degrading treatment makes the prisoner even more prone to suicide, and reduces the chance that he will report his suicidal feelings in the future.
25. Due to the oppressive conditions of confinement and inadequate mental health services at NCI, prisoners become mentally ill, or their mental illness worsens. Excessive
7

force is a common occurrence at NCI, and exacerbates the condition of mentally ill prisoners. Custodial staff are not properly trained in the identification and management of mentally ill prisoners. Thus, when prisoners manifest their illness by self-harm or other behaviors, NCI staff often respond with force rather than with appropriate mental health interventions.
26. Mentally ill prisoners are placed in “in-cell restraints” for many hours at a time. Mentally ill prisoners are often subjected to violent “cell extractions,” sometimes including the use of immobilizing gas. The use of such force on mentally ill prisoners exacerbates their mental illness and makes them more prone to self-harm or suicide. GARNER CORRECTIONAL INSTITUTION (GCI)
27. Mentally ill prisoners are sometimes transferred from NCI to GCI, where mental health staffing is richer and conditions of confinement are sometimes less oppressive. However, such transfers are haphazard; there is no system to ensure that prisoners are in fact transferred from NCI to GCI when their mental illness requires it. In addition, a mentally ill prisoner may be transferred from NCI to GCI, where his condition stabilizes, only to be transferred back to NCI, where the harsh conditions cause him to deteriorate further.
28. Moreover, conditions at GCI, particularly for prisoners confined in the acute unit (IPM) or the Intensive Mental Health Unit (IMHU), are in many respects similar or identical to those at NCI. Indeed, defendants deliberately take steps to ensure that conditions in these two units are approximately as harsh as those at NCI. Prisoners in the IMHU are subjected to a three-level “phase” program that is substantially identical to that at NCI. In the IMHU, as at NCI, prisoners in Phase I are subjected to nearly constant cell confinement and enforced idleness, with visiting, recreation, and telephone privileges severely limited. On the
8

rare occasions when these prisoners are allowed to leave their cells, they are required to be in full restraints at all times. Although the IMHU purports to be a mental health unit, these harsh and punitive conditions only exacerbate the illness of mentally ill prisoners.
29. At GCI, as at NCI, there are frequent uses of force by staff against mentally ill prisoners, including violent “cell extractions” and improper use of restraints. Mentally ill prisoners often receive disciplinary charges for behavior that is the result of their mental illness.
30. At GCI, as at NCI, mental health “treatment” often consists of non-confidential cell-front interviews. Mental health staff frequently label prisoners who are seriously mentally ill as “manipulating” or “malingering,” with the result that those prisoners do not receive the treatment they need for their serious mental illness.
31. These harsh conditions at GCI are especially harmful to prisoners in the IPM and the IMHU. Prisoners in these units are, by definition, among the most acutely and seriously mentally ill prisoners in the Connecticut Department of Correction. To punish them with near-total cell confinement, enforced idleness, and punishment and use of force, just when their mental illness is most debilitating, results in great suffering and exacerbation of mental illness. General factual allegations
32. The conditions described in this Complaint result in gratuitous pain and suffering, and pose an imminent danger of serious illness, injury, or death to prisoners with mental illness.
33. In imposing the conditions described in this Complaint, defendants have acted
9

with deliberate indifference to the serious health, safety, and mental health needs of prisoners with mental illness, and to the risk that these prisoners will suffer serious illness, injury, or death. Defendants have repeatedly been made aware of these conditions by litigation, prisoner grievances, and other means, but have failed to take reasonable corrective action.
34. The conditions described in this Complaint are likely to persist unless enjoined by this Court. Plaintiffs have no adequate remedy at law.
CAUSES OF ACTION 35. By subjecting convicted prisoners with mental illness to the conditions of confinement described herein, with full knowledge of those conditions and of their devastating effects on these prisoners, defendants have acted, and continue to act, with deliberate indifference to these prisoners’ serious health, safety, and mental health needs, and have subjected these prisoners to cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, as enforceable through 42 U.S.C. § 1983. 36. By subjecting pretrial detainees with mental illness, who are presumed to be innocent, to the conditions of confinement described herein, with full knowledge of those conditions and of their devastating effects on these prisoners, defendants have acted, and continue to act, with deliberate indifference to these prisoners’ serious health, safety, and mental health needs, and have subjected these prisoners to punishment, in violation of the Fourteenth Amendment to the United States Constitution, as enforceable through 42 U.S.C. § 1983.
10

PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that the Court: 1. Issue a judgment declaring that the actions of defendants described herein are unlawful and constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and punishment in violation of the Fourteenth Amendment to the United States Constitution; 2. Permanently enjoin defendants, their subordinates, agents, employees, and all others acting in concert with them, from subjecting prisoners with mental illness to the conditions described in this Complaint; 3. Grant plaintiffs their reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988 and other applicable law; and 3. Grant such other relief as the Court considers just and proper.
Respectfully Submitted,
______________________________ Philip D. Tegeler (ct05515) Connecticut Civil Liberties
Union Foundation 32 Grand Street Hartford, CT 06106 860-247-9823 x211 860-728-0287 (fax) ptegeler@cclu.org
11

_____________________________ Ben A. Solnit (ct00292) Tyler Cooper & Alcorn, L.L.P. 205 Church Street P.O. Box 1936 New Haven, CT 06509-1910 (203) 784-8200 (203) 777-1181 (fax) solnit@tylercooper.com
_____________________________ Nancy Alisberg (ct 21321) Paulette Annon (ct 21556) State of Connecticut Office of Protection & Advocacy for Persons with Disabilities 60-B Weston Street Hartford, CT 06120 860-297-4300 860-566-8714 (fax) nancy.alisberg@po.state.ct.us paulette.anon@po.state.ct.us
David C. Fathi ACLU National Prison Project 733 15th Street, NW, Suite 620 Washington, DC 20005 202-393-4930 202-393-4931 (fax) dfathi@npp-aclu.org Practice limited to federal courts Admission pro hac vice pending
Attorneys for Plaintiffs
12

 
 ,

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STATE OF CONNECTiCUT OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES;
JAMES MCGAUGHEY, Executive Director, OffIce ofProtection and Advocacy for Persons with Disabilities,

Civil Action No. 3:03CV1352 (RNC)

PI ainti ffs,

I

v.

WAYNE CHOINSKI, Warden, Northern Correctional Institution, in hi s official capac ity;
GIOVANNY GOMEZ, Warden, Gamer Correctional Institution, in his official capacity; and
THERESA C. LANTZ, Commissioner, Connecti eu t Departm ent of Correction, in her official capacity;

MARCH 8, 2004

Defendants.

SETTLEMENT AGREEMENT
A. GENERAL PROVISIONS
I. This settlement agreement is entered into by the parties to resolve all of the claims made in this action, wherein the plaintiffs, Office of Protection and Advocacy for Persons with Disabilities ("OPA") and James McGaughey, bring a number of claims relating to the conditions of confinement of inmates housed at the Northern Correctional Institution and Gamer Correctional Institution.
2. In entering this agreement, the parties agree and represent that this agreement is fair, reasonable and adequate to protect the interests of all parties and, with respect to the population served by the plaintiffs, that in the opinion of OPA, entering into this agreement is in the best interests ofprisoners and detainees with mental illness, who may develop mental illness, or who are at risk of developing mental illness, who are confined

at Northern CI and Gamer CI. The parties further agree and represent that the temlS and conditions of this agreement do not constitute "prospective relier' within the meaning of 18 U.S.C. § 3626.
3. This settlement agreement is not to be constmed as a Consent Judgment or as an adjudication on the merits of this litigation. TIle defendants deny the allegations in this lawsuit and do not admit liability. By entering into this settlement agreement, the defendants do not concede that their past policies and practices violate any slate or federal laws, deprive any inmates of their state or federal constitutional rights, or were otherwise inadequate. Moreover, the parties acknowledge that the policies and procedures outlined herein do not define clearly established constitutional rights of imnates or create any private right of action against the State of Connecticut, its agents, employees and/or representatives.
4. By entering into this agreement, the defendants do not waive, and are not authorized to waive, the sovereign immunity of the State of Connecticut or the State's immunity from suit guaranteed by the Eleventh Amendment.
5. This settlement agreement is binding upon the plaintiffs, the plaintiffs' successors in office, employees and agents, the defendants named in this lawsuit, and on the defendants' successors in office, employees and agents.
6. Except where otherwise provided, the Defendants shall be obligated to perform their obligations under this settlement agreement upon the date of the filing of the Court's Order of Dismissal of this matter. The date of the filing of the Court's Order of Dismissal shaH hereafter be referred to as the "effective date" of the agreement.
7. The parties shaH request that the Court, in its Order of Dismissal, incorporate the terms of this Agreement, thereby making "the parties' obligation to comply with the terms of the Settlement Agreement ... part of the order" consistent with the holding in Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381 (1994). The parties agree that, after the Court issues such an order, it shall have jurisdiction and authority to enforce this Agreement only as set forth in paragraph A.B, and subject to the termination provisions in paragraph B. 17. See rd.; Scelsa v. City University of New York, 76 F. 3d 37, 40 (2d Cir. 1996).
8. Prior to the filing of any motion challenging the adequacy of the defendants' compliance with the terms and conditions of this agreement, the plaintiffs shall first notify the Commissioner of the Department of Correction, defendants' counsel and the appropriate consultants described in paragraph B.17 in writing, detailing the nature of the breach and the proposed remedy, with specific reference to the enumerated paragraphs in this agreement that are alleged to have been breached. The consultants shall meet and confer as soon as possible regarding the claim of noncompliance and shall convey their recommended resolution ofthe claim 10 the parties within 30 days of receipt of the claim. If the consultants are unable to agree upon a recommended resolution, they shall select, by mutual agreement and within 15 days, a neutral expert to arbitrate the claim as set
2

I
forth in paragraph B.17 and shall convey the resulting recommended resolution of the claim to the parties within 30 days of said neutral expert's receipt of the claim. If the parties do not agree with the consultants' recommended resolution, they shall meet and confer within 10 days of the date of the consultants' recommendation.
9. In the evenl the defendants do not comply with or are unable to comply with the consultant's recommended resolution within 10 days of the parties' meeting and conference described in paragraph A.S., the parties shall contact the appropriate magistrate judge and meet with the court in an effort to resolve any dispute with respect to the defendants' compliance with this agreement. No motion or other proceeding seeking enforcement of this agreement shall be filed or otherwise initiated until the parties have exhausted their discussions with the magistrate judge.
10. The plaintiffs may bring an action to enforce this agreement solely upon a pattern of noncompliance. Individual, isolated instances of noncompliance shaH not be sufficient grounds for an enforcement action.
II. If, after exhausting the mandatory, informal resolution process outlined above in paragraphs A.S. and A.9., the plaintiffs file a motion seeking an order to enforce any portion of this agreement, the plaintiffs' request for relief must be limited to specific perfonnance. No money damages may be sought. The plaintiffs shall not seek an order of contempt unless and until (1) the plaintiffs have sought to enforce this agreement by filing an appropriate motion with the court and (2) the court has issued a clear and unambiguous order of specific performance to the defendants. Before an order of contempt is issued, the court shall find by clear and convincing evidence that the defendants did not diligently attempt in a reasonable manner to substantially comply with the court's clear and unambiguous order.
12. Plaintiffs' entitlement to allorneys' fees for monitoring and enforcement of this agreement shaH be limited to the three year effective term of this agreement, and shall be limited to the hourly rates permitted under the Prison Litigation Reform Act. In no event shall plaintiffs' entitlement to attorneys' fees for monitoring and enforcement exceed $20,000 in any calendar year for attorney's fees and $5,000 a year for plaintiffs monitoring and enforcement expenses.
13. After the Court adopts this settlement agreement, the Court's jurisdiction over the matters set forth in this litigation shall be limited, and specifically, the Court shall retain jurisdiction solely to ensure that the defendants have fulfiHed the obligations undertaken in this settlement agreement. If the plaintiffs have reasonable cause to believe that the defendants have failed to substantially perform any obligation undertaken in this settlement agreement, they may follow the procedures for seeking enforcement as set forth in paragraphs A.S. - A.I1. herein. At any hearing regarding the issue of the defendants' compliance with the terms of this agreement, plaintiffs shall have the burden of proving that the defendants have a pattern of failing to substantially comply with one or more of the tenns of this agreement. If, after hearing, the Court finds that the defendants have failed to substantially comply, the sole remedy shall be an order
3

r

I

directing specific performance of the agreement herein. The Court shall apply Connedicut state contract law in deciding any motion seeking specific performance. For purposes of this agreement, "substantially comply" and "substantia! compliance" mean that the defendants are in compliance with the terms of this agreement in all material respects.
14. Only the plaintiffs named in this agreement or lames McGaughey's successors in office shaH have standing to file a motion seeking enforcement of any of the terms and conditions of this agreement. This agreement does not confer, and is not intended to confer, any rights upon any olher party. The parties to this agreement expressly acknowledge that there shall be no third party beneficiaries to this agreement. Further, any consultants appointed by the parties to audit compliance with this agreement shall have no authority to initiate any proceedings with the court. Only the partie.s are authorized to initiate proceedings with the court.
15. This agreement in no way waives or otherwise affects, limits or modiftes the obligations of inmates to comply with the exhaustion requirements of the Prison Litigation Reform Act, the administrative directives of the Department of Correction or any current or future state or federal law governing the rights and obligations of incarceraled persons.
16. Nothing in this agreement shall require or permit the defendants to violate the laws of the State of Connecticut or the United States of America, nor violate any terms or conditions of any col!ective bargaining agreements to which the State of Connecticut is or becomes a party. "Laws ofthe State of Connecticut or the United States of America" are state and federal constitutional provisions, statutes, judicial decisions. Rules of Court and regulations of administrative agencies.
17. TIle defendants agree that at the present time they are not aware of any conflict between this Agreement and the Laws of the State of Connecticut or any presently existing collective bargaining agreements to which the State is a party. The C(}mmissioner and other policy-making officials of the Department of Correction further agree that they will not seek any new Laws or the execution of new collective bargaining agreements, or any changes or amendments to existing Laws or coHective bargaining agreements, that would undermine the obligations undertaken in this Agreement. Nothing in this section shaH affect the Department of Correction's ability to defend litigation brought against it, to pursue all litigation options and to exhaust all appeal rights. If, in the future, there arises a conflict between the defendants' obligations under this Agreement and any Laws of the State of Connecticut or collective bargaining agreement, the defendants may foHow the laws of the State of Connecticut or collective bargaining agreement, and they shaH promptly notify counsel for the plaintiffs of the perceived conflict. In the event that the defendants, due to such a claimed conflict, cease compliance with any provision of this Agreement, the plaintiffs may seek to enforce this Agreement or may seek reformation of the Agreement to address such cessation of compliance. Compliance with any law or collective bargaining provision that is detennined by the court to conflict with defendants' ohligations under this Agreement
4

shaH be a complete defense to a claim of noncompliance with this Agreement. Prior to instituting any such enforcement or reformation action, the plaintiffs shaH notify the defendants, and the parties shaH meet with the Court. The provisions of A.8. - A.! 1. do not apply in these circumstances. The defendants shall continue in full compliance with all provisions of this Agreement that are not affected by the purportedly conflicting Law or collective bargaining agreement.
18. Nothing in this agreement shall be construed to limit, in any way, the authority of the Commissioner of the CDOC to transfer inmates to other state or federal jurisdictions and/or to a private prison.
B. SPECIFlC PROVISIONS
I. Definitions
"CDOC" means the Connecticut Department of Correction, UConn Correctional Managed Health Care, and their employees, contractors, and agents.
"Congregate programming" means programming in which the prisoner interacts with other prisoners.
"Consultants" means the consultants provided for in paragraph 8.17.
"DMHAS" means the Connecticut Department of Mental Health and Addiction Services.
"Designated housing unit for the mentally ill" means the iPM, IMHU, F Block, G Block, and H Block at Garner Correctional Institution, the observation cells at NCI, as well as any housing unit that may hereafter be established at GCI or NCr where prisoners are housed due to mental illness or impairment.
"Doctoral-level clinician" means a licensed psychiatrist, or a licensed psychologist with a Ph.D., Psy.D., or Ed.D. degree.
"Exigent circumstances" means circumstance" under which the doing of an act othenvise required by this Agreement would create an unacceptable risk to the safety of any person. Whenever an act othenvise required by this Agreement is excused on account of"exigent circumstances," defendants shall attempt to resolve the "exigent circwnstances" as soon as possible, and the act shaH be performed as soon as possible after the "exigent circum stances" cease to exi st.
"GCl" means Gamer Correctional Institution.
"IMHU" means the Intensive Mental Health Unit at Gamer Correctional Institution.
"iPM" means the Inpatient Mental Health unit at Gamer Correctional Institution.
5

"NCI" means Northem Correctional In sti tu ti on.
"Observation" means that an inmate has been removed from a housing unit at NCl and admitted to an observation cell in the NCI medical unit because of mental health concerns.
"Prisoner housed in a designated housing unit for the mentally ill" does not include a prisoner whom a doctoral-level clinician has certified in writing is housed in such a unit for reasons unrelated to that prisoner's mental health.
"Programming" means therapeutic, educational, recreational, work, or other activities.
"Qualified Mental Health Professional" and "Practitioner" mean psychiatrists, psychologists, psychiatric social workers, psychiatric nurses, and others who by virtue of their education, credentials, and experience are permitted by law to evaluate and care for the mental health needs of patients. (Taken from NCCHC Standard J-E-05 Re: Mental Health Screening and Evaluation).
"Serious assault" means intentionally striking, attacking or attempting to strike or attack a Department of Correction employee, another inmate or any other person, with or without the use of an object or substance (Taken from DOC Code of Penal Discipline, A.D. 95.12 C &D).
"Seriously mentally ill" has the meaning set forth in Appendix A hereto.
2. Scope of Agreement
Except as specified in paragraph B.4. below, this Agreement applies only to prisoners housed at GCI and NCl.
3. Removal ofthe Seriously Mentally III from NCI
Persons who are subject to the DMHAS evaluation process set forth in Appendix B hereto and meet the definition of "Seriously Mentally Ill", as defmed in Appendix A hereto, shall be removed from NCI within ten business days of receipt of DMHAS' report, absent exigent circumstances. If the removal of a prisoner is delayed because of "exigent circumstances," defendants shall attempt to resolve the "exigent circumstances" as soon as possible, and the prisoner shall be removed as soon as possible after the "exigent circumstances" cease to exist.
4. Exclusion of the Seriouslv Mentally III from NCI's Administrative Segregation Program
Any prisoner being considered for transfer to NCl for placement in the administrative segregation program shall be evaluated by a licensed doctoral-level clinician, or by a qualified mental health professional if a licensed doctoral-level clinician is not available,
6

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to detennine whether tbe prisoner is seriously mentally ill. Absent exigent circumstances or tbe unavailability of a qualified mental health professional, the evaluation will take place prior to the transfer of the inmate to NCI's administrative segregation program. In the event there was no pre-transfer evaluation, or if the prisoner was not evaluated by a licensed doctoral-level clinician prior to transfer, then an evaluation by a licensed doctoral-level clinician shaH be completed by the end of the third business day after the inmate's transfer to NCI's administrative segregation program. The evaluation shall include, at a minimum, review of the prisoner's medical and mental health files, and custody data, and a face-to-face interview with the prisoner, conducted in a private, confidential setting. For any prisoner being considered for transfer to NCI's administrative segregation program or transferred to NCI's administrative segregation program under this paragraph, defendants shall make a good faith effort to obtain records from any pre-incarceration psychiatric hospitalization, and any such records, if obtained, shall be reviewed by the doctoral-level clinician as part of the evaluation. If the prisoner is found to be seriously mentaHy ill, he shall not be transferred to or kept at NCI's administrative segregation program, except as set forth below:

L Absent exigent circumstances, no seriously mentally ill prisoner shall be transferred to the administrative segregation program at NCI without prior notice to plaintiffs. If defendants wish to transfer a seriously mentally ill prisoner to the admi ni strative segregation program at NCI, they sha II give plaintiffs at Ieast ten days' advance notice of the proposed transfer, unless exigent circumstances make such notice impracticable.

2. No seriously mental1y ill prisoner sha!! be housed in the administrative segregation program at Ncr unless defendants have produced a report to plaintiffs tbat

a. provides documentation of the prisoner's dangerousness; b. describes all potential aitemative placements, both in Connecticut and
outside the state, tbat defendants have considered for tbe prisoner, and explains why none 0 f them is workab Ie; and c. identifies the additional services that will be provided to the prisoner if he is transferred to NCI, to help him witb his serious mental i11ness and to mitigate the effect the conditions at NCI have on that il1ness.

If a prisoner housed at NCl in the administrative segregation program is found to be

seriously mentaUy ill, that prisoner shall be removed from NCr within 10 days of that

finding unless exigent circumstances warrant otherwise. If the removal of a prisoner is

delayed because of "exigent circumstances," defendants shall attempt to resolve the

"exigent circumstances" as soon as possible, and the prisoner sball be removed as soon as

possible after tbe "exigent circumstances" cease to exist.
A prisoner who has been deemed unsuitable for transfer to NCI and placement in the administrative segregation program because he is seriously mentally ill, or has been

•I

removed from NCI's administrative segregation program because he is seriously mentally

7

ill, shall not thereafter be transferred to NCI and placed in the administrative segregation program unless (a) the dangerousness exception set forth in point 2. above applies or (b) unless more than four months have passed since the prisoner was found to be seriously mentally ill; a UCONN doctoral-level clinician has determined, after appropriate evaluation, that the prisoner is not currently seriously mentally ill and is not likely to become seriously mentally ill if transferred to NCI; and these findings are confirmed by an independent evaluation perfomled by a doctoral-level clinician from DMHAS selected by the parties. In the event the UCONN doctoral level clinician and the DMHAS doctoral level clinician disagree, the Commissioner of the DOC ("Commissioner') may transfer the prisoner to NCI and place him in the administrative segregation program if the Commissioner explains in writing why he/she disagrees with the conclusion of the independent DMHAS evaluation and agrees with the rmding by the UCONN clinician that the inmate is not seriously mentally ill and is not likely to become seriously mentally ill if transferred to NCI and placed in the administrative segregation program. Conversely, if the Commissioner agrees with the evaluation done by the DMHAS clinician, the prisoner shall not be transferred to NCI and placed in the administrative segregation program. A copy of the written explanation will be sent to plaintiffs and to the consultants. A prisoner who is subject to this review process may be transferred to NCI and placed in the administrative segregation program pending the outcome ofthe review process; provided that in such cases, the initial determination shall take place within five days of that transfer, the independent evaluation shall take place within 10 days of the initial determination, and the Commissioner's review shall take place within five days of the independent evaluation. If the result of the review process is to transfer the prisoner back out of NCI's administrative segregation program, that transfer shall take place within five days of the completion of the review process. Defendants shall promptly notify plaintiffs and the consultants whenever a prisoner who has previously been found to be seriously mentally ill is transferred to NCI and placed in the adminis trat ive segregation program.
4.a. Period ic Evalu alions
Prisoners housed at NCI and in the administrative segregation progranJ shall be evaluated not less than every 90 days by a doctoral-level clinician to determine whether their mental health is being adversely affected by confinement at NCI's administrative segregation program. This evaluation shall include, at a minimum, review of the prisoner's medical, mental health, and custody files, and a face-to-face interview with the prisoner, conducted in a private, confidential setting.
5. !'tIental Health Staffing
CDOC shall employ at least I FIE psychiatrist, or the equivalent of 1 FIE psychiatrist, for each ISO prisoners who are prescribed psychotropic medications at GCI and NCr. Prisoners prescribed psychotropic medication by a M.D. for a reason other than for treating a mental health condition, shall not be included in this "150 prisoners" figure for staffing purposes provided however, that such prescriptions shall be subject to audit by the consultants as described below. For purposes of this section and section 8.S.A.,
8

I
psychotropic medication to treat dyssomnia, or sleep disorders shaH be considered to be prescribed for treating a mental health condition. By "equivalent" in the first sentence is meant that some of the hours of psychiatric time can be replaced by hours of an APRN's time; hut at least 60% of the required psychiatrist time must be filled by a psychiatrist; and when APRN hours are substituted for psychiatrist hours, there must be 1.2 hours of an APRN's lime for every substituted hour of a psychiatrist's time. Thus, for example, if the equivalent of I FTE psychiatrist is required in an institution where 150 prisoners are prescribed psychotropic medications, this requirement can be met by having a psychiatrist 60% of full time and having an APRN 1.2 X 40% time, in other words, (if full-time is considered to be 40 hours per week), 24 hours of a psychiatrist's time and 1.2 X 16 or 19.2 hours of an APRN's time. In terms of other staffing levels, the CDOC will comply with the National Commission on Correctional Health Care 2003 Standard #MC-07, to wit:
"A written staffing plan assures that a sufficient number of health staffof varying types is available to provide adequate and timely evaluation and treatment consistent with contemporary standards of care."
"Compliance Indicators: (1) All aspects of the standard are addressed by written policy and defined procedures. (2) The responsible health authority approves the staffing plan. (3) The adequacy and effectiveness of the staffing plan are assessed by the facility's ability to meet the health needs ofthe inmate population."
In accordance with the NCCHe 2003 standard #P-A-06, "A continuous quality improvement (CQ!) program in all facilities monitors and improves upon health care delivered in the facility," a quality assurance/peer review mechanism will be developed to monitor the adequacy and effectiveness of the staffing plan, and changes to that plan will be made accordingly.
The usual and customary practice will be to provide the staffing required to implement this agreement. However, short-term deviations shall be permitted in instances of absence beyond the power of the defendants to correct by means of providing overtime assigrunent or by any other means reasonably available to defendants. Defendants shall give written notice of any such deviations to plaintiffs and to the consultants.
Sa. Psycho actiYe M ed icaIion
University of Connecticut Health Center, Correctional Managed Health Care, Policy and Procedures Number G 51.05 (Revised 12120/01, 6118103) will be followed, with these additions and changes:
No prisoner shall have a prescription for psychotropic medication initiated, changed or discontinued without a prior, private, face-to-face interview with a psychiatrist, or APRN under a psychiatrist's supervision, unless exigent circumstances exist or an inmate refuses to participate in a private face-to-face interview. In cases where a prisoner is admitted to NCI or GCl already receiving prescribed psychotropic medications, the medications can
9

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I

be prescribed prior to a visit with a psychiatrist or APRN, but with an order by a

psychiatrist or APRN, pending a face-to-face visit within three days. Any prisoner who

is prescribed psychotropic medication shall be evaluated in a private face-to-face

interview with a psychiatrist or APRN at least every two months, or more often if

clinically indicated. If the prisoner refuses to exit his cen to meet with the psychiatrist or

APRN in an office for the purpose of an initial assessment for medications or a follow-up

evaluation, the clinician will go to see the prisoner at his cell, assess the clinical situation,

devise and institute an appropriate intervention for the individual prisoner under the

circumstances, and record the encounter and the intervention in the medical chart within

96 hours of tbe refusal. In the case of routine changes or prisoner-initiated

discontinuation of prescribed medications, the prescribing psychiatrist or APRN win

attempt to schedule a meeting with the prisoner within 7 days of the refusal, to discuss the prisoner's condition and medications, or, if he refuses to come to the office, wi!! visit

I

the prisoner at his ce!l within 96 hours of the refusal, and wi!! devise and carry out an

appropriate treatment plan and record it in the prisoner's chart.

The foregoing paragraph does not apply to psychotropic medications prescribed by an M.D. for a reason other than for treating a mental health condition. The consultants shal! address such prescriptions in the audit instrument described in Section B.l7. and shaH review the issuance of such prescriptions as part oftheir audits.

According to Policy #G 51.05, "The CMHC psychiatrist, or CMHC APRt"l" with psychiatric certification, shall sign telephone orders within 72 hours of the order." At NCr and GCI, if a telephone order is given, the psychiatrist or APRN wi!! try to see the prisoner within 24 hours if practical, but in any event shall see the prisoner within 72 hours. The meeting wil! occur in a private, confidential setting unless exigent circumstances or the prisoner's refusal make this impracticable.

6. Confidentiality of Mental Health Services

Prisoners shaH have the opportunity to request mental health services 7 days a week through a confidential written request system. These requests shall be co!1ected 7 days a week, and shaH be triaged by mental health staff within 24 hours of collection. These requests, and any responses to them, shal! be filed in the prisoner's mental health file. Except in emergencies or in instances where an inmate refuses to come out of his cell for a private interview, mental health evaluation andJor treatment shall not be provided at cell-front, but shal! be delivered in a setting that provides audio privacy from other prisoners and from non-health care staff. If the prisoner refuses to exit his cel!, a licensed doctoral level clinician or APRN will go to see the prisoner at his cell within 96 hours of the refusal, assess the clinical situation, devise and institute an appropriate intervention for the individual prisoner under the circumstances, and record the encounter and the intervention in the prisoner's health record.
Whenever eDOe policy or this agreement require that a prisoner be "evaluated," seen,"
"examined," "interviewed," "assessed," or "screened" (or any other similar term) for mental health purposes (including the 30 and 90 day mental health reviews required by A.D. 9.4, "Restrictive Status," para. 14.D.), a "cell fron!" inter.'iew sha!1 not satisfy this

10

requirement Rather, the prisoner shaH be interviewed in a setting that provides audio privacy from other prisoners and from non-health care staff. This provision shaH not apply in instances where an inmate refuses to come out of his cell for a private interview. If the prisoner refuses to exit his ceil, a licensed doctoral level clinician or APRN wil! go to see the prisoner at his cell within 96 hours of the refusal, assess the clinical situation, devise and institute an appropriate inten'ention for the individual prisoner under the circumstances, and record the encounter and the intervention in the prisoner's health record.
7. Use of Force on the Mentallv III
Prior to a planned use of force on a prisoner housed in a designated housing unit for the mentally iI!, clinical intervention shall be attempted by a qualified mental health provider, acting in consultation, if possible, with a doctoral-level clinician. The provider shall attempt to verbally counsel the prisoner and attempt to persuade him to cease the behavior that has led to the planned use of force. The provider shan document this process in the prisoner's health record.
If the clinical intervention described in the previous paragraph does not, in the opinion of the shift supervisor, resolve the situation requiring use of force, the shift supervisor shall issue a verbal warning to the prisoner, and shall provide the prisoner with a reasonable amounl of time to cease the offending behavior before initiating the use of force. The shift supervisor shall document this warning in an incident report.
Prior to a planned use of chemical agents on a prisoner housed in a designated housing unit for the mentally ill, and absent exigent circumstances, the prisoner's health record shall be consulted by a qualified member of health services staff to detenmine whether the use of chemical agents on the prisoner is medically contraindicated. The substance of this consultation shall be documented on a medical incident report or the prisoner's health record.
Nothing in this section shall preclude a shift supervisor from authorizing use of force in an emergency to prevent significant injury to the inmate in question, or another person, or damage to property that raises safety concerns.
8. Discipline
Before a Class A disciplinary report as defined in A.D. 9.5 is delivered to a prisoner
housed in a designated housing unil for the mentally iH, a qualified mental health
professional shall be consulted and asked to express an opinion as to (1) Whether the behavior for which the disciplinary report is given is a resul! of the prisoner's mental illness, and (2) Whether disciplining the prisoner would aggravate his mental illness. This consultation shall be documented in an incident report, a disciplinary investigator's report or the inmate's health record. If the practitioner answers in the affinmative to either of Questions (I) or (2) above, the disciplinary report shall not be delivered 10 the prisoner and shall be dismissed, unless the Warden directs in writing otherwise. In any
11

I
case in which a prisoner is given a disciplinary report despite the practitioner's affirmative answer to Questions (I) and/or (2), the form on which the practitioner's opinion is noted shall be given to the hearing officer prior to the disciplinary hearing and/or the imposition ofany sanction.
In no event shall a prisoner receive disciplinary sanctions for verba!ly reporting to appropriate CDOC staff feelings or intentions regarding self-harm or suicide.
9. Observation
Any prisoner at NCl who remains on Observation for more than 72 hours shall be transferred on an emergency basis to GCl. Prisoners in Observation shall be treated in compliance with NCCHC standards governing use ofrestraints and seclusion.
10. Restraint Policy
No prisoner shall be required to wear restraints during recreati on, except th at:
I. Upon transfer to Phase 1 of the administrative segregation program at NCr, a prisoner who has committed a serious assault or other serious incident that significantly impacts the operation of a housing unit or facility within the past 90 days may be required to wear restraints during recreation for not more than a 7 day period, unless a facility classification review demonstrates in writing a legitimate reason for continuing restraints.
2. A prisoner who, while housed at NCr, commits a major misconduct involving serious assault or other serious incident that significantly impacts the operation of a housing unit or facility may be required to wear restraints during recreation for not more than a 21 day period, unless a facility classification review demonstrates in writing a legitimate reason for continuing restraints.
3. Use of restraints during recreation for prisoners housed in a designated housing unit for the mentally ill shall be governed by paragraph B. 16 and not by this section.
4. A monthly report shall be generated and given to plaintiffs and the consultants listing every prisoner who has been required to wear restraints during recreation for 21 or more days and for each such prisoner, the dates he has been required to wear restraints during recreation.
No prisoner sha11 be required to wear hand or wrist restraints during non-contact visiting, except that:
I. Upon transfer to Phase I of the administrative segregation program at NCI, a prisoner who has committed a major misconduct involving serious assault or other serious incident that significantly impacts the operation of a housing unit or
12

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facility within the past 90 days may be required to wear hand or wrist restraints during non-contact visiting for not more than a 7 day period, unless a facility classification review demonstrates in writing a legitimate reason for continuing restrai nts.
2. A prisoner who, while housed al NCI, commits a major misconduct involving serious assault or other serious incident that signi ficantly impacts the operation of a housing unit or facility may be required to wear hand or wrist restraints during non-contact visiting for not more than a 21 day period, unless a facility classification review demonstrates in writing a legitimate reason for continuing restraints.
3. A monthly report shall be generated and given to plaintiffs and the consultants listing each prisoner who has been required to wear hand or wrist restraints during visiting for 21 or more days and for each sucb prisoner, the dates he has been required to wear restraints during visiting.
A prisoner for whom a major misconduct has been dismissed, or of which the prisoner has been found not guilty, shall not be deemed to have "committed" that misconduct for purposes of this section.
For prisoners housed in a designated housing unit for the mentally ill, four point restraints shall be applied and maintained only in accordance with A-D. 65, Use of Force (revised 2128/03) section 9 on use of therapeutic restraints, a copy of which is attached as AppendixC.
11. Programming in Phase 1
Programming ,vill be available to a1l prisoners in all three phases of the NCI administrative segregation program. Prisoners may have the opportunity to complete assignments while in their cells, but not all programming wil! be conducted exclusively in-cell. Programming will be available in English and Spanish. Sign language interpreter services shall be made available to deaf or hard of hearing prisoners, and any written material shall be made available in either Braille or large print format to any prisoner who is blind or has a visual impairment. Prisoners who are unable to read or write or otherwise unable to complete written assignments because of learning disabilities or other disabilities that preclude them from being able to concentrate (such as ADD or ADHD) shall be excused from all written assignments.
The prisoner's demonstrated willingness to participate in the programming will be a factor that may be considered by the classification committee in deciding whether the prisoner will progress to the next phase of the NCI administrative segregation program; but specific answers given or not given in the course of thaI participation shall not be a factor that may be considered by the classification committee unless they demonstrate an unwillingness to participate or are threatening.
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12. Length of Phase 1
The minimum duration of NCl's administrative segregation Phase I shall be 120 days. After 180 days on Phase I, a prisoner shall be promoted to Phase 2 unless a facility classification review demonstrates in writing a legitimate reason for the inmate to remain in Phase L
If a prisoner remains on Phase I for more than 120 days, he shall be evaluated by a doctoral-level clinician to determine whether his progress through the phase system is being impaired by mental illness. This evaluation shall include, at a minimum, review of the prisoner's medical, mental health, and custody data, and a face-to-face interview with the prisoner, conducted in a private, confidential setting. The practitioner shall document this evaluation, and the practitioner's findings, in the inmate's health record. If the practitioner finds that the prisoner's progress through the phase system is being impaired by mental i!Iness, the practitioner shall report this finding to the classification committee, '1Ihich shall consider promotion of the prisoner to Phase 2, or other accommodation for the prisoner's mental illness. If the prisoner is not promoted to Phase 2, the evaluations required by this paragraph shall thereafter occur every 30 days while the prisoner remains in Phase L
A monthly report shall be generated and given to plaintiffs and the consultants listing every prisoner who has remained in Phase I for more than 120 days and for each such prisoner, the length of his stay at Phase I and the reason(s) for his continued stay in Phase L
13. Conditions of Confinement
Defendants shall install, and maintain in good working order, calendar clocks that are in or visible from all cells at GCI and NCI's administrative segregation program.
Prisoners in Phases I, 2, and 3 of the NCI administrative segregation program shan be allowed to purchase commissary-approved audio devices at their own expense.
Prisoners in Phase I of NCI's administrative segregation program shaH be allowed at least five hours out-of-cell outdoor recreation time per week.
After thirty days, prisoners in Phase 2 of NCI's administrative segregation program shall be allowed at least seven and one-half hours out-of-cell time per week, of which at least five hours shall be outdoor recreation time, and at least two and one-half hours shall be congregate programm ing.
Prisoners in Phase 3 of NCI's administrative segregation program shall be allowed at least fourteen hours out-of-cell time per week, of which at least five hours shall be outdoor recreation time, and at least two and one-half hours shal1 be congregate programmmg.
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14. Familv

Visiting, commissary or telephone calls may be reduced or eliminated as a penalty for

misconduct by a prisoner. However, an inmate found guilty of a disciplinary report shall

not lose both visiting and telephone privileges at the same time. Although there is no

limit on the amount of time for which an inmate can lose visiting or telephone privileges

if he continues amassing disciplinary reports, the maximum amount of time that may be

served at anyone time is 45 consecutive days. By way of example, if an inmate amasses

several disciplinary reports and loses 135 days of visiting privileges and 135 of telephone

privileges, the sanctions shall be served as follows: 45 days loss of phone privileges,

with no loss of visiting privileges during this 45 day period. Then the phone privileges

are temporarily restored for 45 days, while the inmate is on loss of visiting for 45 days, then visiting privileges are restored temporarily for 45 days, while the inmate is on loss of

i

phone privileges for 45 days. The sanctions shall be served in this staggered marmer until

an inmate has served day for day each penalty imposed. In no event shall mail, legal

visiting or legal telephone calls be reduced, eliminated, or otherwise affected as a

sanction for misconduct, except that mail may be restricted for mail related misconduct.

15. StaCC Train in g

All security staff at NCI and GCI shall receive at least eight hours of training per year on mental health issues. This training shall cover, at a minimum, the following topics:

prevention of suicide and self-harm recognizi ng signs 0 f men tal illness communication skills for interacting with prisoners with mental illness alternatives to discipline and use of force when dealing with prisoners with mental illness.

This training shall include both live instruction and distribution oC written materials, and shall be provided by instructors at an ACA accredited training academy.

16. Garner Correctional Institution

In the IPM and IMHU units and other designated housing units for the mentally ill at GCI, there will be 3 hours a day, 5 days a week of out-of-cell therapeutic, educational, rehabilitative and recreational programs offered to all prisoners who are capable of safely participating. These programs will include but are not limited to individual and group psychotherapy, milieu therapy, case management, social work intervention, a variety of psychiatric rehabilitation programs, substance abuse programs, recreational activities and supervised free time out of cell. Prisoners who are capable of safely doing so will participate in out-of-cell therapeutic, educational, rehabilitative and recreational activities at least 3 hours per day, 5 days a week. The aim is to progress every prisoner to participate in at least 5 hours per day of out-of-cell programming as soon as possible or when clinically indicated. If, because of a prisoner's assaultiveness, recent disciplinary reports, mental status, or olber exigent circumstances, this much out-of-cell activity is

15

deemed inappropriate by mental health and correctional staff, or if limits on the manner of out-of-cell activity, including the use of restraints during recreation, is deemed necessary by correctional staff, then an individualized treatment plan will be devised and put into effect with one of its aims being the rapid preparation of the prisoner for participation in the therapeutic milieu and the therapeutic programs that are available on the unit for at least 5 hours per day, 5 days a week, and the end of any limits on the manner of out-of-cell activities, including the use of restraints during recreation. Each inmate in the GCl treatment program will have an individualized treatment plan developed by the inmate's treatment team. The inmate's programming will be provided in accordance with the individualized treatment plan.
Defendants shall provide a monthly report prepared by the supervising psychologist to the plaintiffs, to the consultants, to the Facility Warden, Health Services Administrator, and to the CMHC Director of Mental Health Services, listing all prisoners whose out-ofcell activities have been restricted to less than 5 hours per day or whose manner of out-ofcell activities has been limited, including wearing of restraints during recreation, for more than seven consecutive days under the provisions of the previous paragraph and describing the rationale for the restrictions.
Upon admission to GCI, an inmate housed in a designated housing unit for the mentally ill may spend up to his first seven days in a "diagnostic and evaluation" program that may limit his out-of-cell time to the extent found appropriate by mental health and custody staff.
Where disciplinary problems arise, they will be managed according to this agreement, and in every instance possible, by having mental health staff collaborate with correctional staff in devising an intervention strategy that both maintains security and the smooth operation of Ihe institution and promotes the aims of prisoners' mental health treatment.
17. Enforcement and Compliance Assessment
This agreement shall remain in effect only for a period of three years from the effective date. The agreement, and all rights and obligations arising thereunder, shall terminate and shaH no longer be enforceable three years from the effective date. Upon termination, without the need for any further order of any state or federal court, all jurisdiction of any court, as well as the right of the plaintiffs to seek specific performance of this agreement, shall end, and no court shall have the power or jurisdiction to enforce this agreement. The parties agree that nothing in this agreement may be construed to authorize the court to extend this agreement beyond the termination date referred to in this paragraph, and the plaintiffs expressly agree that they will not seek, and are barred from seeking, an extension of this agreement. As of the third anniversary of the effective date of the agreement, all rights and obligations shaH terminate and any pending action for relief would be moot. In the event any motions or proceedings are pending on the third anniversary of the effective date of Ihis agreement, the court shall be bound to dismiss any such motions or proceedings as the court's jurisdiction shall terminate with the exception of any attorneys' fees motions not yet acted upon by the Court.
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The parties agree not to unilaterally seek to modify, extend, add to, tenninate, or othenvise challenge this agreement, under the Prison Legal Refonn Act or othenvise, for the duration of the three-year enforcement period. The parties further agree that this agreement may be modified or tenninated at any lime by mutual, written agreement.
To assess the defendants' compliance with this agreement, the plaintiffs shall appoint a mental health consultant and a custody consultant and the defendants shall appoint a mental health consultant and a custody consultant, for a total of two consultants each, and a grand total of four consultants. The consultants shall he given continued access to GCI and NCI to monitor compliance with this agreement. As part of their assessment function the consultants shall have full access to the two facilities and all documents not covered by the attorney-client or work product privileges in the defendants' possession or control that pertain to NCr or GCI, except documents maintained by eDOC that relate to facility security operations, including but not limited to blueprints, chapter seven of the administrative directives, chapter seven of the unit directives, post orders, emergency plans, internal photographs, staff home phone numbers or home addresses, personnel files, or similar documents. The consultants shall also be pennitted to conduct private, confidential interviews, ou a voluntary basis, as to matters listed on the audit instrument, with both (l) GCI and NCI irunates and (2) any CDOC staff whose responsibilities pertain to NCr or GCL eDOC wi!! encourage CDOC staff members to talk to the consultants. However, it is understood by all parties that if a particular inmate has pending litigation against the CDOe or its employees, the CDOC staff members may be advised to contact their attorney first, before discussing said inmate with the consultants.
The parties will submit to the court the issue of ordering the disclosure of prisoner health records to the consultants. The parties and their cOllSultants stipulate that any health records ordered to be disclosed by the Court shall be used solely to evaluate compliance with this agreement and all copies of health records shaH be destroyed upon tennination of this agreement.
The Court shall not, sua sponte or othenvise, expand or alter the provisions of Ihis agreement. The court may, however, act on a motion to refonn this agreement as set forth in Paragraph A.17.
The consultants shall not disclose to any irunate infonnation which they obtained under this agreement without prior notification to the parties and their allorneys. Defendants shall have the right to object to the consultants' disclosure of information which, if disclosed to an inmate, could jeopardize the safety and security of staff, other inmates or the general public.
Each mental health consultant shall be a qualified menta! health professional, and each party shall submit the name and credentials 10 the opposing party prior to the date this agreement becomes effective.
17

The consultants' sole function shall be to review compliance with this agreement. The consultants shall not review or become involved in matters which are not directly provided for in this agreement and they shall perform this function in accordance with their respective audit instruments. The consultants have no authority to add to or to alter the pro visions of tltis agreemen t.
Prior to the effective date of this agreement, the mental health consultants shall meet with appropriate eDOe personnel and develop an audit instrument for the purpose of evaluating compliance with the mental health sections oflhis Agreement and the custody consultants shall meet with appropriate eDOe personnel and develop an audit instrument for the purpose of evaluating compliance with the custody sections of this Agreement. The audit instruments shall be developed solely to assess whether eDOe is in compliance with the express terms and conditions of this agreement, and may not be modified by the consultants during the three years this agreement is in effect except if, by mutual agreement oflhe two consultants who developed the audit instrument, they fmd it reasonably necessary in order to perform their duties. Once approved by the parties, the audit instruments shall form the basis of all consultant evaluations, and at no time may either consultant assess any aspect of eDoe operations that is not specifically identified in the audit instruments.
The audits shall be completed according to the following schedule, with reports submitted to counsel for the plaintiffs and the defendants:
Six months after the effective date of the agreement One year after the effective date ofthe agreement Eighteen months after the effective date of the agreement Twenty-four months after the effective date of the agreement Thirty months after the effective date of the agreement
All consultants' reports shall remain confidential, and shall not be disclosed publicly by the consultants during the effective tenn of this agreement, except for the purpose of pursuing or defending any action to enforce this agreement, and except if disclosure is ordered by a court of competent jurisdiction. If either party to litis agreement is made aware of a request for the entry of such a court order, that party shaH notify the other parti es to the agreement.
The consultants shall work collaboratively and in an effort to reach consensus on their audit items. In the event the consultants are unable to agree on the audit instrument or on whether tbe defendants are in compliance with one or more terms of tltis agreement, then the consultants shall select, by mutual agreement, a neutral expert to arbitrate these issues. The neutral expert shall be entitled to the same level of access to facilities, records, staff and inmates as the consultants.
It is expressly understood and agreed that any consultants appointed by the parties, and anyone selected to arbitrate disputes among the parties' consultants, are not court monitors or special masters, and that the consultants will not submit their reports or have
18

any communications with the Court without the express agreement of all parties. No consultant shall engage in any ex parte communications with any court having jurisdiction to enforce the terms of this agreement. Upon submission of an appropriate invoice for services and expenses, CDOC shaH reimburse each of the plaintiffs' consultants in an amount not to exceed a grand total of 540,000 per year for each of the three years this agreement is in effect (a year shaH be each 12 month period foHowing the effective date of this agreement). In the event that a neutral expert is required to arbitrate disputes between the consultants as set forth in this paragraph and as set forth in paragraph A.S., CDOC shaH reimburse each such neutral expert in an amount not to exceed $15,000.00 per year. 18. Attorneys' Fees and Costs The defendants shall pay to the plaintiffs the sum of$177,850.00 for attorneys' fees and $13,131.16 for costs incurred in this case to date. Any futnre awards of attorneys' fees shaH be calculated in accordance with the hourly rates established pursuant to the Prison Litigation Reform Act and limited to 520,000 a year as set forth in Paragraph Al2 above for attorney's fees and $5,000 a year for plaintiff's monitoring and enforcement expenses. 19. Approval of Legislature Required Prior to submission of this agreement to the Court for approval, the parties acknowledge that the defendants' authority to enter into this Settlement Agreement is contingent upon the General Assembly's approval of this agreement pursuant to Conn. Gen. Stat. § 3125a. The defendants have not obtained the General Assembly's approval at the time they and their attorneys signed this agreement, and will not have the General Assembly'S approval until such time as the General Assembly has approved this agreement by resolution, or the thirty day period for the General Assembly to consider this agreement has el apsed, as described in Conn. Gen. Stat. § 3-125a.
19

PLATh'TIFFS, Office of Protection & Advocacy
Nancf>AI isberg
Office of Protech & Advocacy Federal Bar No. ct21321 60-B Weston Street
Hartford, cr 06120
Tel. (860) 297-4300 Fax (860) 566-8714 E·Mail: nancy.31isberg@po.sta!e.ctus
Ben A. Solni! Tyler, Cooper & Alcorn, LLP FederaI Bar N(). ct00292 205 Church Street New Haven, CT 06509-1910 Tel. (203) 784-8200 Fax. (203) 777-1181 E-Mail: SDlnit@tvlercooper.com
David C. Fathi Federal Bar No. ct22477
!,,, '\ ACLU National Prison Project
-:., 3."3 ~ IS"' Street, NW, Suite 620 <.. '" Washington, DC 20005 Tel. (202) 393-4930 Fax. (202l 393-4931 E-Mail: dfathi@i!8S-ac1u.org <. ,"0 ;V.\
Erin Boggs FederaI Bar No. c Interim Legal Director Connecticut Civil Liberties Union Foundation 32 Grand Street Hartford, CT 06106 Tel. (860) 247-9823 x211 Fax (860) 728-0287 E-Mail: eboggs@cclu.org

DEFENDANTS, Wayne Choinski, et al.

~eresa' c.LantI z U~
Commissioner of Correction

RICHARD BLlTh-IENTHAL ATTORNEY GENERAL

r;if-.f? 0 BY: ;f;t/"tCcce /.-/
V Terrehce M. O'Neill

ytIC/!!, ~

Ass; stant Attorney General

Federal Bar No. ctlO835

110 Sherman Street

Hartford, CT 06105

Tel. (860) 808-5450 Fax (860) 808-5591

E-Mail: terrence.one·I ... o.state.ct.us

n . Lyncl1

Assistant Atto

Federal Bar N

110 Sherman S

Hartford, CT 06105

Tel. (860) 808-5450 Fax (860) 808-5591

E-Mail: ann.lvnch@oo.state.ct.us

~/l.~

Ste('en R. Strom

7

Ass istant Attorney Genera I

Federal Bar No. 01211

II 0 Sherman Street

Hartford, CT 06105

Tel. (86(}) 808-5450 Fax (860) 808-5591

E-Mail: steven.strom@oo.state.cl.us

20

CERTIFICATION I hereby certify that a copy of the foregoing was mailed to the following this 8th day of March 2004:
21

APPENDIX A

L Evaluation of Selected Prisoners at Northern Correctional Institution

CDOC agrees to evaluate certain prisoners at Northern Correctional Institution for serious mental illness, and to remove from NCI those found to be suffering from serious mental illness.

Population to be Evaluated All prisoners housed at NCI who:

I

I. Are dassified as Administrati ve Segregation Phase r 2. Are d assi fi ed as Administrative Segregation Phases II or III, or SRG r, II, or III

I

and have a mental health score of 3 or above

3. Are in any phase of Administrative Segregation or SRG and have a history of

psychiatric hospitalization based upon each inmate's most recent NCr Mental Health

IntakeFonn

4. Have been prescribed psychotropic medication within the last 6 months

5. Have been assigned an "S" classification score

6. Have a history of Self-mutilation or suicidal gestures within the last 12 months

Prisoners will be evaluated in the fol!owing order:

I. Everyone who has been in Observation in the last month 2. Everyone who has been in Observation twice or more times in the last year 3. Everyone who is prescribed anti-psychotic and/or mood stabilizing medications 4. Everyone who has been in Phase I of the Administrative Segregation program for over 9 months 5. Everyone who is prescribed any psychiatric medication or has been prescribed such medications in the last six months. 6. All others in the categories designated in the settlement agreement.

II. Definition of Serious Mental Illness

L For the purpose of the one-time evaluation process ofselected inmates currently housed in the CT DOC Northern Correctional Instilute al the request of the State of Connecljcut Office of Protection and Advocacy:

a. Inmates with a current diagnosis, that takes past psychiatric history into account, ofthe foHowing disorders that meet DSM-N criteria, even if there are no current symptoms, and inmates who are currently under treatment for one of these disorders:

!) Schi zopheenia 2) Delusional Disorder 3) Schizopheeniform Disorder 4) Schizoaffective Disorder 5) Bipolar Disorder, all types 6) Major Depressive Disorder, Current or Recurrent 7) Mental Retardation 8) Organic I\-lental Disorder (including organic sequelae due to dosed head injuries, Dementia, Delirium, Amnestic Disorder, as uncovered by a neuropsychological screening instrument and con:finmed by Neuropsychological Testing that lead the individual to significant functional impainment.) 9) Other Psychotic Disorder (including Psychosis NOS) or serious mental illness that is frequently characterized by breaks with reality that lead the individual to significant functional irnpainnent. 10) Severe Personality Disorder that is manifested by frequent episodes of psychosis, results in significant functional impainment, or results in significant or chronic self-injury.
b. Patients with a diagnosis of the following disorders that meet DSM-IV criteria and are currently in the active, symptomatic phase of the disorder, or are under treatment for the following disorders: 1) BriefPsychotic Disorder 2) Substance Induced Psychotic Disorder (excluding intoxication and withdrawal) 3) Psychotic Disorder due to a General Medical Condition
c. Patients who are detenmined, on the basis of a clinical evaluation, to be actively suicidal or at high risk of suicide in the foreseeable future.
d. Patients who have attempted suicide using lethal means and intending 10 die, i.e., have engaged in behavior that evidences serious suicidal risk, considering recency, lethality, and intent.
e. Patients who have had active suicidal intent on an ongoing and unremitting basis.
f. Other patients with severe and debilitating symptoms related to the following diagnoses, 10 include but not limited to: anxiety disorders, including post traumatic stress disorder; dysthymic disorder; cyclothymic disorder; mood disorder secondary to a general medical condition or snbstance use; and inmates with significant or chronic self injury within the past year, including bona :fide suicide attempts. These cases will be reviewed before disposition on a case by case basis by the Director of Mental Health Services.
g. Other exceptional cases approved by the Director of Mental Health Services.
h. Inmates with serious mental illness, as described above, who discontinue psychiatric or mental health treatment against medical advice and remain symptomatic or dysfunctional.
2

ill. For the purpose of ongoing screening by the Connecticut Department of Corrections of all inmates prior to placement at the Northern Correctional Institute: a. through h. in ll. above is the same.
3

Evaluating clinicians

APPENDIXB

Evaluations wil! be perfOImed by clinicians employed by the Connecticut Department of Mental Health and Addiction Services ("DMHAS") in accordance with the attached DMHAS written proposal. A written report will be generated by the evaluating clinician on each prisoner evaluated. Reports will be generated on a rolling basis as soon as possible but no later than 10 business days after the evaluating clinicians complete each evaluation and will be provided to the parties as they are generated.

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APPENDIXC
A.D. 6.5, Use of Force - REVISED - 2!28f03 Prepared for signature 3/3/03 - effective 315103
****
9. Therapeutic Restraints. Restraints shaH be used only in situations that are directly proportionate to the presence of imminent physical danger to the inmate, others or the environment.
A. No On-Site Health Services Staff. Placement of an inmate in full stationary res traints shall be in accordance with this Directive. Soft restraints sha II be used. The placement shall require an order from the on-call psychiatrist or physician within one (1) hour.
B. On-Site Health Services Staff.
L Criteria. An order to restrain shall be subsequent to an evaluation by a physician. If a physician is not on-site, an assessment shall be made by a Registered Nurse with a telephone order obtained within one (1) hour from a physician and so documented. The physician may discontinue restraints subsequent to a direct evaluation. In the absence of a physician, a Registered Nurse may discontinue restraints with a telephone order from a physician.
2. EQuiomenL Restraint equipment shall be approved by the Director of Health, Mental Health and Addiction Services and shaH be maintained in accordance with Administrative Directive 7.2, Armories.
3. Cell Condition. Wherever possible, the authorized restraint bed shall be placed in the middle of the room away from the walls to prevent injury of staff and inmates during placement. The cell shall also be free of obstruction to allow for clear observation of the inmate.
4. Procedure. This process shall be video recorded in accordance with Section 16 of this Directive. A video recording shall be designated to each inmate while on full restraint status and the video recording shall be utilized at least during placement, each (2) hour check, during any notable change in behavior and removal of restraints.
This procedure shall be implemented in collaboration with supervising custody staff. The inmate shall be placed on a mattress, which is positioned on top of a bed frame and the inmate shall be positioned face up. Arms and legs shall be restrained such th at di scomfort to the inmate is minimized.

•

A post incident medical evaluation shall be conducted upon placement and at the indicated intervals: (a) circulation - every 15 minutes; (b) respiration - every 15 minutes; (c) pulse - every 30 minutes; (d) blood pressure - every 60 minutes; and (e) temperature - every 120 minutes.

Tbese checks shall be executed and documented by Health Services staff in the inmate health record. At least every two (2) hours the restraints must be totally removed or serially removed and each limb of the inmate moved to full range of motion and assessed for trauma, blood circulation, and!or dimini shed nerve sensation.

The inmate shall be allowed to attend to bodily functions every two hours. Restrained inmates shall receive normally scheduled meals. Meals shall

i

be bite-sized and served on paper plates, unless a physician has ordered

alternate dietary arrangements. If feasible, the inmate may have one (1)

arm released to use for feeding. Fluids shall be offered every two (2)

hours. Food and fluid intake/output and refusal shall be documented.

Immediate removal of restraints shaH be initiated where a decompensating

physical condition of a restrained inmate contraindicates restraints. In

such circumstances, the physician shall be notified immediately.

2

 
 Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 1 of 14
CLOSED, DFM, MOTREF, REFCNF
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:03−cv−01352−RNC

Connecticut, et al v. Northern Corr Inst, et al Assigned to: Judge Robert N. Chatigny Referred to: Judge Donna F. Martinez Demand: $0 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
State of Connecticut Ofc of Protection &Advocacy for Persons with Disabilities

Date Filed: 08/06/2003 Date Terminated: 09/26/2005 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Annette M. Lamoreaux Connecticut Civil Liberties Union Foundation 32 Grand St. Hartford, CT 06106 860−247−9823 x211 Fax: 860−728−0287 TERMINATED: 11/02/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin A. Solnit Connecticut Legal Services−Wtby 85 Central Avenue Waterbury, CT 06702 203−756−8074 Fax: 203−754−0504 Email: bsolnit@connlegalservices.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C. Fathi National Prison Project of the ACLUF 915 15th St NW 7th Fl. Washington, DC 20005 202−393−4930 Fax: 202−393−4931 TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. McGuire American Civil Liberties Union − CT 2074 Park Street Hartford, CT 06106 860−523−9146 Ext. 212 Fax: 860−586−8900 Email: dmcguire@acluct.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Balaban American Civil Liberties Union, Inc.−DC 915 15th St., NW, Seventh Floor Washington, DC 20005 202−393−4930 Fax: 202−393−4931 Email: ebalaban@npp−aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 2 of 14

Plaintiff
James McGaughey Executive Dir, Ofc of Protection &Advocacy for Persons with Disabilities

Erin Boggs Connecticut Fair Housing Center 221 Main Street Hartford, CT 06106 860−247−4400 Fax: 860−247−4236 Email: eboggs@ctfairhousing.org TERMINATED: 11/01/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy B. Alisberg State Of Connecticut Office Of Prot. &Adv. For Handicapped 60B Weston St. Hartford, CT 06120 800−842−7303 Fax: 860−566−8714 Email: nancy.alisberg@po.state.ct.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip D. Tegeler Poverty &Race Research Action Council 1015 15th St. NW #400 Washington, CT 20005 202−360−3906 Email: ptegeler@prrac.org TERMINATED: 04/02/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Renee Colette Redman New Haven Legal Assistance, Inc 426 State St. New Haven, CT 06510−2018 203−946−4811 x−138 Fax: 203−498−9271 Email: rredman@nhlegal.org TERMINATED: 01/28/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Annette M. Lamoreaux (See above for address) TERMINATED: 11/02/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin A. Solnit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C. Fathi (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. McGuire (See above for address)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 3 of 14
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Balaban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Boggs (See above for address) TERMINATED: 11/01/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy B. Alisberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip D. Tegeler (See above for address) TERMINATED: 04/02/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Renee Colette Redman (See above for address) TERMINATED: 01/28/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Northern Corr Inst Wayne Choinski, Warden, /O

represented by Ann E. Lynch Attorney General's Office 110 Sherman St. Hartford, CT 06105 860−808−5450 Fax: 860−808−5591 Email: ann.lynch@po.state.ct.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven R. Strom Attorney General's Office Public Safety &Special Revenue MacKenzie Hall, 110 Sherman St. Hartford, CT 06105 860−808−5450 Fax: 860−808−5591 Email: steven.strom@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence M. O'Neill Attorney General's Office 110 Sherman St. Hartford, CT 06105 860−808−5450 Fax: 860−808−5591 Email: terrence.oneill@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 4 of 14

Defendant Garner Corr Inst Giovanny Gomez, Warden, /O
Defendant Dept of Corrections Theresa C. Lantz, Comm, /O
Movant Charles Rodriquez Batts

represented by Ann E. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven R. Strom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence M. O'Neill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann E. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven R. Strom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence M. O'Neill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/06/2003 08/06/2003 08/06/2003
08/06/2003 08/07/2003
08/18/2003 09/04/2003
09/17/2003

# Docket Text
1 COMPLAINT Filing Fee $ 150.00 Receipt # H010084 (Ferguson, L.) (Entered: 08/07/2003)
SUMMONS(ES) issued for Northern Corr Inst, Garner Corr Inst, Dept of Corrections (Ferguson, L.) (Entered: 08/07/2003)
2 ORDER on Pretrial Deadlines handed to counsel Discovery cutoff 2/5/04 ; Amended Pleadings due 10/6/03 Motions to Dismiss due 11/6/03 (Ferguson, L.) (Entered: 08/07/2003)
3 MOTION by State of Connecticut, James McGaughey for David C. Fathi to Appear Pro Hac Vice (Ferguson, L.) (Entered: 08/07/2003)
ENDORSEMENT [3−1] motion for David C. Fathi to Appear Pro Hac Vice ordered accordingly David C. Fathi ( signed by Clerk ) (Ferguson, L.) (Entered: 08/07/2003)
4 APPEARANCE of Attorney for State of Connecticut, James McGaughey −− David C. Fathi (Blue,A.) (Entered: 08/18/2003)
5 APPEARANCE of Attorney for Northern Corr Inst, Garner Corr Inst, Dept of Corrections −− Terrance M. O'Neill, Ann E. Lynch, Steven R. Strom (Blue,A.) (Entered: 09/04/2003)
6 ORDER of referral to Mag. Judge Donna F. Martinez for settlement conference (signed by Chief Judge Robert N. Chatigny ) (Blue,A.) (Entered: 09/17/2003)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 5 of 14

09/17/2003 10/02/2003 10/03/2003 10/09/2003 10/20/2003 10/22/2003 10/22/2003 11/07/2003 11/13/2003 11/13/2003 12/03/2003 12/15/2003 12/18/2003
12/22/2003 01/06/2004 01/07/2004 01/13/2004 01/27/2004 02/09/2004 02/09/2004

7 ORDER TO SUBMIT JOINT MEDIATION REPORT ( signed by Mag. Judge Donna F. Martinez ) (Blue,A.) (Entered: 09/18/2003)
8 MOTION by State of Connecticut, James McGaughey, Northern Corr Inst, Garner Corr Inst, Dept of Corrections to Extend Time for 30 days to file 26(f) report (Blue,A.) (Entered: 10/02/2003)
ENDORSEMENT granting [8−1] motion to Extend Time for 30 days to file 26(f) report ( signed by Chief Judge Robert N. Chatigny ) (Blue,A.) (Entered: 10/06/2003)
Deadline updated; 26(f) Report of Conference Due 11/3/03 − see endorsement to [doc. 8] (Kunofsky, L.) (Entered: 10/09/2003)
9 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Status Conference held on 10/20/2003. (Wood, R.) (Entered: 10/21/2003)
10 CALENDAR AND SETTLEMENT CONFERENCE ORDER . Signed by Judge Donna F. Martinez on 10/22/03. (Blue, A.) (Entered: 10/23/2003)
Settlement Conference set for 12/3/2003 10:00 AM in Chambers Room 262 before Donna F. Martinez. (Kunofsky, L.) (Entered: 10/30/2003)
11 MOTION for Extension of Time of 30 days to file 26(f) report &60 days to file amended complaint by State of Connecticut, Dept of Corrections, Garner Corr Inst, James McGaughey, Northern Corr Inst. (Blue, A.) (Entered: 11/10/2003)
12 ENDORSEMENT ORDER granting 11 Motion for Extension of Time Signed by Judge Robert N. Chatigny on 11/13/03. (Blue, A.) (Entered: 11/14/2003)
Set Deadlines: Amended Pleadings due by 2/14/2004. Rule 26 Meeting Report due by 12/15/2003. Any motion to dismiss by defendants no later than 3/1/04. (Blue, A.) (Entered: 11/14/2003)
13 Minute Entry for proceedings held before Judge Donna F. Martinez : Settlement Conference held on 12/3/2003. Case did not settle. (Wood, R.) (Entered: 12/04/2003)
14 MOTION for Extension of Time of 30 days to file 26(f) report by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 12/16/2003)
15 ENDORSEMENT ORDER granting 14 Motion for Extension of Time to file 26(f) report, counsel are reminded that motions for extensions must be filed 5 days prior to dealine in question, Signed by Judge Robert N. Chatigny on 12/16/03. (Blue, A.) (Entered: 12/19/2003)
16 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 12/22/2003. (Wood, R.) (Entered: 12/23/2003)
17 MOTION for Extension of Time for 30 days to file 26(f) report by State of Connecticut, Dept of Corrections, Garner Corr Inst, James McGaughey, Northern Corr Inst. (Blue, A.) (Entered: 01/06/2004)
18 ENDORSEMENT ORDER granting 17 Motion for Extension of Time for 30 dyas to file 26(f) report, Signed by Judge Robert N. Chatigny on 1/7/04. (Blue, A.) (Entered: 01/08/2004)
19 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonnic Settlement Conference held on 1/13/2004. (Wood, R.) (Entered: 01/13/2004)
20 Minute Entry for proceedings held before Judge Donna F. Martinez,U.S.M.J. : Settlement Conference held on 1/27/2004. (Wood, R.) (Entered: 01/28/2004)
21 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 2/9/2004. (Wood, R.) Modified on 4/15/2004 (Wood, R.). (Entered: 02/10/2004)
22 JOINT MOTION for Extension of Time by 30 days to file 26(f) Report by State of Connecticut, Dept of Corrections, Garner Corr Inst, James McGaughey, Northern Corr Inst. (Montgomery, A.) (Entered: 02/10/2004)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 6 of 14

02/09/2004 02/11/2004 02/23/2004 03/10/2004 03/10/2004 03/11/2004 03/11/2004 03/26/2004 04/02/2004 04/05/2004 04/07/2004 04/08/2004 04/08/2004 05/10/2004 05/13/2004 05/17/2004 05/26/2004 06/09/2004 06/09/2004
06/30/2004

Docket Correction to show correct date re 21 Settlement Conference. (Wood, R.) (Entered: 04/15/2004)
23 ENDORSEMENT ORDER granting 22 Motion for Extension of Time for 30 days to file 26(f) report, Signed by Judge Robert N. Chatigny on 2/11/04. (Blue, A.) (Entered: 02/12/2004)
31 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 2/23/2004. (Wood, R.) (Entered: 04/15/2004)
24 MOTION for Extension of Time of 30 days to file a 26(f) report &to amend complaint by State of Connecticut, Dept of Corrections, Garner Corr Inst, James McGaughey, Northern Corr Inst. (Blue, A.) (Entered: 03/10/2004)
25 NOTICE of Appearance by Erin Boggs on behalf of State of Connecticut, James McGaughey (Blue, A.) (Entered: 03/10/2004)
26 ENDORSEMENT ORDER granting 24 Motion for Extension of Time for 30 days to file 26(f) report and to amend complaint, Signed by Judge Robert N. Chatigny on 3/11/04. (Blue, A.) (Entered: 03/15/2004)
Set Deadlines/Hearings: Amended Pleadings due by 4/13/2004. Rule 26 Meeting Report due by 4/15/2004. (Blue, A.) (Entered: 03/16/2004)
27 MOTION for Philip D. Tegeler to Withdraw as Attorney by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 03/30/2004)
28 ENDORSEMENT ORDER granting 27 Motion to Withdraw as Attorney. Attorney Philip D. Tegeler terminated , Signed by Judge Robert N. Chatigny on 3/31/04. (Blue, A.) (Entered: 04/02/2004)
32 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 4/5/2004. (Wood, R.) (Entered: 04/15/2004)
29 MOTION for Extension of Time to file 26(f) report, to amend complaint &to move to dismiss complaint by State of Connecticut, Dept of Corrections, Garner Corr Inst, James McGaughey, Northern Corr Inst. (Blue, A.) (Entered: 04/07/2004)
30 ENDORSEMENT ORDER granting 29 Motion for Extension of Time , Signed by Judge Robert N. Chatigny on 4/8/04. (Blue, A.) (Entered: 04/08/2004)
Set Deadlines/Hearings: Amended Pleadings due by 5/13/2004. Rule 26 Meeting Report due by 5/15/2004. (Blue, A.) (Entered: 04/08/2004)
33 NOTICE of Appearance by Annette M. Lamoreaux on behalf of State of Connecticut, James McGaughey (Blue, A.) (Entered: 05/12/2004)
34 JOINT MOTION for Enlargement of Time to Extend Deadlines by State of Connecticut, Dept of Corrections, Garner Corr Inst, James McGaughey, Northern Corr Inst. (Glynn, T.) (Entered: 05/14/2004)
35 ENDORSEMENT ORDER granting 34 Motion for Extension of Time to extend deadlines, Signed by Judge Robert N. Chatigny on 5/17/04. (Blue, A.) (Entered: 05/18/2004)
36 Minute Entry for proceedings held before Judge Robert N. Chatigny : Telephone Status Conference held on 5/26/2004. (Blue, A.) (Entered: 05/27/2004)
37 MOTION for an Order Allowing access to prisoner health records by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 06/09/2004)
38 Memorandum in Support re 37 MOTION for an Order Allowing access to prisoner health records filed by State of Connecticut, James McGaughey. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 Continuance of main document)(Blue, A.) (Entered: 06/09/2004)
39 Memorandum in Opposition re 37 MOTION for Order Allowing access to prisoner health records filed by Dept of Corrections, Garner Corr Inst, Northern Corr Inst. (Attachments: # 1 Notice of manual Filing)(Blue, A.) (Entered: 07/01/2004)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 7 of 14

07/09/2004 07/15/2004
07/27/2004 07/30/2004 10/15/2004 10/25/2004
10/25/2004 10/27/2004 11/01/2004 11/08/2004 11/15/2004 12/15/2004
12/15/2004 01/11/2005 02/07/2005 02/09/2005
02/10/2005

40 MOTION for Extension of Time to 7/30/04 to File Reply Brief as to 37 MOTION for and Order Allowing access to prisoner health records Order by State of Connecticut, James McGaughey. (Ferguson, L.) (Entered: 07/13/2004)
41 ENDORSEMENT ORDER granting 40 Motion for Extension of Time to File Reply re 37 MOTION for Order Allowing access to prisoner health records Responses due by 7/30/2004, Signed by Judge Robert N. Chatigny on 7/15/04. (Blue, A.) (Entered: 07/15/2004)
42 REPLY to Response to 37 MOTION for Allowing access to prisoner health records Order filed by State of Connecticut, James McGaughey. (Attachments: # 1 Exhibits)(Blue, A.) (Entered: 07/27/2004)
43 AFFIDAVIT re 42 Reply to Response to Motion Signed By Terry A. Kupers filed by James McGaughey. (Blue, A.) (Entered: 08/04/2004)
44 E−FILED CALENDAR. Judge Martinez shall conduct a telephonic status conference in this matter on Monday, October 25 at 2:30 p.m. Attorney Terry O'Neill shall initiate the call. (Constantine, A.) (Entered: 10/15/2004)
45 The court held a telephonic conference on 10/25/04 to discuss effectuation of settlement. The court shall hold another such conference on 11/8/04 at noon. At that conference, counsel shall be prepared to discuss outstanding issues regarding settlement. In particular, counsel for the defendants shall be prepared to report the progress of the state defendants on naming their mental health consultant. SO ORDERED. Signed by Judge Donna F. Martinez on 10/25/04. (Martinez, Donna) (Entered: 10/25/2004)
46 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 10/25/2004. (Wood, R.) (Entered: 10/25/2004)
47 MOTION for Erin M. Boggs to Withdraw as Attorney by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 10/27/2004)
48 ENDORSEMENT ORDER granting 47 Motion to Withdraw as Attorney. Attorney Erin Boggs terminated , Signed by Judge Robert N. Chatigny on 10/28/04. (Blue, A.) (Entered: 11/01/2004)
51 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 11/8/2004. (Wood, R.) (Entered: 12/22/2004)
50 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 11/15/2004. (Wood, R.) (Entered: 12/22/2004)
49 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. A Telephonic Status Conference is scheduled for January 11, 2005 at 2:00 p.m. before Judge Donna F. Martinez. Atty. T. O'Neill will initiate the conference call to chambers. (Wood, R.) (Entered: 12/15/2004)
Set Deadlines/Hearings: Telephonic Status Conference set for 1/11/2005 02:00 PM in Chambers Room 262 before Judge Donna F. Martinez. (Wood, R.) (Entered: 12/15/2004)
56 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 1/11/2005. (Wood, R.) (Entered: 02/11/2005)
52 Telephone conference held regarding settlement. Another telephone conference regarding settlement shall be held on February 9, 2005 at 1:00 pm. Signed by Judge Donna F. Martinez on 2/7/05. (Martinez, Donna) (Entered: 02/07/2005)
53 THIS ELECTRONIC ORDER IS THE ONLY NOTICE THE COURT WILL ISSUE. The court will hold a telephonic status conference regarding settlement on March 10, 2005 at 10 am. Signed by Judge Donna F. Martinez on 2/9/05. (Martinez, Donna) (Entered: 02/09/2005)
54 MOTION for Order to Request Ruling on Motion document #37 by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 02/10/2005)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 8 of 14

02/11/2005
02/22/2005 02/23/2005 03/10/2005
05/09/2005 05/16/2005 06/06/2005 06/06/2005 06/28/2005 07/08/2005
07/13/2005 07/14/2005
07/14/2005 08/09/2005 08/11/2005 08/15/2005

55 NOTICE OF E−FILED ORDER: THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. If the parties are unable to resolve issues regarding expert reports, counsel and the parties' experts, Drs. Fulweiler and Newkirk, shall attend a meeting in the east jury room on March 21, 2005 at 10:30 a.m. Signed by Judge Donna F. Martinez on 2/11/05. (Constantine, A.) (Entered: 02/11/2005)
57 RESPONSE re 54 MOTION for Request for Ruling on Motion document #37 Order filed by Northern Corr Inst, Garner Corr Inst, Dept of Corrections. (Blue, A.) (Entered: 02/22/2005)
58 MOTION to Intervene by Charles Rodriquez Batts.Responses due by 3/16/2005 (Blue, A.) (Entered: 02/24/2005)
59 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 3/10/2005. Parties have agreed to final version of audit instruments. Settlement agreement to be filed. (Martinez, Donna) (Entered: 03/10/2005)
Minute Entry for proceedings held before Judge Robert N. Chatigny : Telephone Conference held on 5/9/2005. (Court Reporter D. Warner.) (Kunofsky, L.) (Entered: 05/09/2005)
Minute Entry for proceedings held before Judge Robert N. Chatigny : Telephone Conference held on 5/16/2005. (Court Reporter D. Warner.) (Kunofsky, L.) (Entered: 05/17/2005)
60 TRANSCRIPT of Proceedings held on 4/28/05 before Judge Robert N. Chatigny. Court Reporter: Darlene A. Warner. (Blue, A.) (Entered: 06/06/2005)
61 TRANSCRIPT of Proceedings held on 5/16/05 before Judge Robert N. Chatigny. Court Reporter: Darlene A. Warner. (Blue, A.) (Entered: 06/06/2005)
62 Minute Entry for proceedings held before Judge Robert N. Chatigny : Telephone Status Conference held on 6/28/2005. (Court Reporter Darlene Warner.) (Walker, J.) (Entered: 06/28/2005)
63 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. A Telephonic Status Conference is scheduled for July 13, 2005 at 10:15 a.m. before Judge Donna F. Martinez. Atty. Steve Strom will initiate the conference call to chambers at (860)240−3605 with counsel for all the parties on the line. (Wood, R.) (Entered: 07/08/2005)
Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 7/13/2005. (Wood, R.) (Entered: 07/14/2005)
64 NOTICE OF E−FILED ORDER: THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. The case is scheduled for a settlement conference on August 9, 2005 at 1:00 p.m. at her chambers at 450 Main Street, Room 262, Hartford, Connecticut. COUNSEL ARE DIRECTED TO THE ATTACHED ORDER FOR FURTHER INSTRUCTIONS. Signed by Judge Donna F. Martinez on 7/14/05. (Wood, R.) (Entered: 07/14/2005)
Set Deadlines/Hearings: Settlement Conference set for 8/9/2005 at 1:00 PM in Chambers Room 262, 450 Main St., Hartford, CT before Judge Donna F. Martinez. (Wood, R.) (Entered: 07/14/2005)
Minute Entry for proceedings held before Judge Donna F. Martinez : Settlement Conference held on 8/9/2005. (Wood, R.) (Entered: 08/16/2005)
65 TRANSCRIPT of Proceedings held on 6/28/05 before Judge Robert N. Chatigny. Court Reporter: Darlene A. Warner. (Blue, A.) (Entered: 08/11/2005)
66 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. A Telephonic Settlement Conference is scheduled for August 17, 2005 at 3:30 p.m. before Judge Donna F. Martinez. Atty. Terrance O'Neill will initiate the conference call to chambers at (860) 240−3605 with all counsel on the line. (Wood, R.) (Entered: 08/15/2005)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 9 of 14

08/17/2005 08/17/2005 08/17/2005 08/19/2005 08/19/2005 08/22/2005 08/22/2005 08/26/2005 09/21/2005
09/21/2005 09/22/2005
09/26/2005 10/11/2005
10/28/2005 10/31/2005 11/01/2005 11/02/2005

67 ORDER regarding settlement. The court shall hold a telephonic settlement conference on 8/19/05 at 1:30 pm. Signed by Judge Donna F. Martinez on 8/17/05. (Martinez, Donna) (Entered: 08/17/2005)
68 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 8/17/2005. (Martinez, Donna) (Entered: 08/17/2005)
Set Deadlines/Hearings: Telephonic Settlement Conference set for 8/19/2005 01:30 PM in Chambers, 450 Main St., Hartford, CT before Judge Donna F. Martinez. (Blue, A.) (Entered: 08/18/2005)
69 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 8/19/2005. (Martinez, Donna) (Entered: 08/19/2005)
70 ORDER regarding settlement. The court shall hold another telephonic settlement conference on August 22, 2005 at 3:45 pm. Signed by Judge Donna F. Martinez on 8/19/05. (Martinez, Donna) (Entered: 08/19/2005)
71 ORDER regarding settlement. The court shall hold a settlement conference in chambers on 8/26/05. Signed by Judge Donna F. Martinez on 8/22/05. (Martinez, Donna) (Entered: 08/22/2005)
72 Minute Entry for proceedings held before Judge Donna F. Martinez : Telephonic Settlement Conference held on 8/22/2005. (Martinez, Donna) (Entered: 08/22/2005)
Minute Entry for proceedings held before Judge Donna F. Martinez : Settlement Conference held on 8/26/2005. (Wood, R.) (Entered: 08/26/2005)
73 ORDER regarding settlement. By no later than 9/26/05, the parties shall submit to the chambers of the undersigned a report on the status of their efforts to resolve the case. Signed by Judge Donna F. Martinez on 9/21/05. (Martinez, Donna) (Entered: 09/21/2005)
Set Deadlines/Hearings: Status Report on settlement efforts due by 9/26/2005. (Montgomery, A.) (Entered: 09/22/2005)
74 MOTION to Dismiss and Approval of Settlement by State of Connecticut, James McGaughey, Northern Corr Inst, Garner Corr Inst, Dept of Corrections.Responses due by 10/13/2005 (Attachments: # 1 Notice of manual filing)(Blue, A.) (Entered: 09/23/2005)
75 ORDER of dismissal granting 74 Motion to Dismiss and Approval of Settlement, Signed by Judge Robert N. Chatigny on 9/26/05. (Blue, A.) (Entered: 09/26/2005)
76 MOTION for Cost and Fees by State of Connecticut, James McGaughey.Responses due by 11/1/2005 (Attachments: # 1 Memsup Part 1# 2 Memsup Part b# 3 Aff/Alisberg# 4 Aff/Lamoreaux# 5 Aff/Solnit Part 1# 6 Aff/Solnit Part 2# 7 Aff/Tegeler# 8 Aff/Ponvert# 9 Aff/Alexander# 10 Aff/Fathi Part 1# 11 Aff/Fathi Part 2) Exhibits A−D and 1−12 in Paper form.(Montgomery, A.) (Entered: 10/13/2005)
77 MOTION for Extension of Time to File Response as to 76 MOTION for Cost and Fees until 12/1/05 by Northern Corr Inst, Garner Corr Inst, Dept of Corrections. (Blue, A.) (Entered: 10/28/2005)
78 ENDORSEMENT ORDER granting 77 Motion for Extension of Time to File Response re 76 MOTION for Cost and Fees Responses due by 12/1/2005, Signed by Judge Robert N. Chatigny on 10/31/05. (Blue, A.) (Entered: 10/31/2005)
79 MOTION for Annette M. Lamoreaux to Withdraw as Attorney by State of Connecticut, James McGaughey. (Ferguson, L.) (Entered: 11/01/2005)
80 ENDORSEMENT ORDER granting 79 Motion to Withdraw as Attorney. Attorney Annette M. Lamoreaux terminated, Signed by Judge Robert N. Chatigny on 11/1/05. (Blue, A.) (Entered: 11/02/2005)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 10 of 14

11/16/2005 12/01/2005 12/15/2005 12/15/2005 02/09/2006 05/17/2006 05/17/2006 05/17/2006 05/17/2006 05/17/2006 05/22/2006
05/23/2006 06/07/2006 06/09/2006
06/09/2006 06/23/2006 06/27/2006 06/28/2006

81 ORDER REFERRING MOTION: 76 MOTION for Cost and Fees filed by State of Connecticut, James McGaughey to Mag. Judge Donna F. Martinez, Signed by Judge Robert N. Chatigny on 11/16/05. (Blue, A.) (Entered: 11/16/2005)
82 Memorandum in Opposition re 76 MOTION for Cost and Fees filed by Northern Corr Inst, Garner Corr Inst, Dept of Corrections. (Attachments: # 1 # 2 # 3 Notice of manual filing &Affidavits)(Blue, A.) (Entered: 12/02/2005)
83 REPLY to Response to 76 MOTION for Cost and Fees filed by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 12/15/2005)
84 AFFIDAVIT re 83 Reply to Response to Motion Signed By Ben A. Solnit filed by State of Connecticut, James McGaughey. (Attachments: # 1 Exhibits 1−4)(Blue, A.) (Entered: 12/15/2005)
85 NOTICE of Appearance by Renee Colette Redman on behalf of State of Connecticut, James McGaughey (Blue, A.) (Entered: 02/09/2006)
86 RENEWED MOTION for Order allowing access to prisoner health records by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 05/18/2006)
87 Memorandum in Support re 86 RENEWED MOTION for Allowing acess to prisoner health records filed by State of Connecticut, James McGaughey. (Attachments: # 1 Exhibit)(Blue, A.) (Entered: 05/18/2006)
88 Redacted AFFIDAVIT re 86 RENEWED MOTION for Allowing acess to prisoner health records Signed By Ben A. Solnit filed by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 05/18/2006)
89 MOTION to Seal Declaration by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 05/18/2006)
90 Sealed Document by State of Connecticut, James McGaughey re 86 RENEWED MOTION for Order Allowing acess to prisoner health records. (Blue, A.) (Entered: 05/18/2006)
91 ORDER REFERRING MOTION: to Mag. Judge Donna F. Martinez 86 RENEWED MOTION for Allowing acess to prisoner health records Order filed by State of Connecticut, James McGaughey, Signed by Judge Robert N. Chatigny on 5/22/06. (Blue, A.) (Entered: 05/23/2006)
92 ORDER REFERRING MOTION: to Mag. Judge Donna F. Martinez 89 MOTION to Seal Declaration filed by State of Connecticut, James McGaughey, Signed by Judge Robert N. Chatigny on 5/23/06. (Blue, A.) (Entered: 05/23/2006)
93 MOTION for Extension of Time to File Response as to 86 ?RENEWED MOTION for Allowing acess to prisoner health records Order until 6/22/06 by Northern Corr Inst, Garner Corr Inst, Dept of Corrections. (Blue, A.) (Entered: 06/07/2006)
94 The defendants' motion for enlargement of time (doc. # 93 ) is granted absent objection. The defendants' response to the plaintiff's renewed motion for disclosure of prisoner health records (doc. #86) shall be filed by due June 22, 2006. Signed by Judge Donna F. Martinez on 6/9/06. (Constantine, A.) (Entered: 06/09/2006)
Set/Reset Deadlines as to 86 RENEWED MOTION for Allowing acess to prisoner health records Order. Responses due by 6/22/2006 (Blue, A.) (Entered: 06/12/2006)
95 Memorandum in Opposition re 86 Renewed MOTION for Allowing acess to prisoner health records filed by Northern Corr Inst, Garner Corr Inst, Dept of Corrections. (Attachments: # 1 Affidavit)(Blue, A.) (Entered: 06/23/2006)
96 SUPPLEMENTAL REPLY to Response to 86 RENEWED MOTION for Allowing acess to prisoner health records filed by Northern Corr Inst, Garner Corr Inst, Dept of Corrections. (Blue, A.) (Entered: 06/27/2006)
97 MOTION for Extension of Time to File Reply as to 86 RENEWED MOTION for Allowing acess to prisoner health records until 7/14/06 by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 06/28/2006)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 11 of 14

07/05/2006
07/05/2006 07/14/2006
08/02/2006
08/15/2006
08/15/2006 08/17/2006 09/01/2006
09/05/2006 09/13/2006 10/04/2006
10/05/2006 10/06/2006
11/08/2006 01/08/2007 01/23/2007

98 ORDER granting 97 the plaintiff's motion for extension of time to file a reply brief to their renewed motion for access to prisoner health records (docket no. 86 ). The plaintiff's reply brief shall be filed by 7/14/2006. Signed by Judge Donna F. Martinez on 7/5/06. (Constantine, A.) (Entered: 07/05/2006)
Set/Reset Deadlines as to 86 RENEWED MOTION for Allowing acess to prisoner health records. Responses due by 7/14/2006 (Blue, A.) (Entered: 07/05/2006)
99 REPLY to Response to 86 MOTION for Allowing acess to prisoner health records Order filed by State of Connecticut, James McGaughey. (Attachments: # 1 Exhibit 1, part 1# 2 Exhibit 1, part 2# 3 Exhibit 1, part 3# 4 Exhibit 2)(D'Onofrio, B.) (Entered: 07/14/2006)
100 ORDER Setting Hearing on Motion: Oral argument on Plaintiff's motion for Cost and Fees (doc. # 76 ) is scheduled for 8/15/2006 at 9:30 a.m. in the East Courtroom, 450 Main St., Hartford, CT before Judge Donna F. Martinez. (Constantine, A.) (Entered: 08/02/2006)
101 Minute Entry for proceedings held before Judge Donna F. Martinez : Motion Hearing held on 8/15/2006 re 76 MOTION for Cost and Fees filed by State of Connecticut,, James McGaughey,. Total Time: 1 hour and 15 minutes(Court Reporter S. Bowles.) (Blue, A.) (Entered: 08/16/2006)
Motions Taken Under Advisement: 76 MOTION for Cost and Fees (Blue, A.) (Entered: 08/16/2006)
102 ORDER, Signed by Judge Robert N. Chatigny on 8/7/06. (Blue, A.) (Entered: 08/17/2006)
103 Recommended ruling. The undersigned recommends that the plaintiffs' motion for attorney's fees and costs (doc. # 76 ) be denied. 17 pages. Objections due by 9/19/2006. Signed by Judge Donna F. Martinez on 9/1/06. (Constantine, A.) (Entered: 09/01/2006)
104 TRANSCRIPT of Proceedings held on August 15, 2006 before Judge Donna F. Martinez. Court Reporter: Stephen C. Bowles. (Wood, R.) (Entered: 09/05/2006)
105 OBJECTION to 103 Recommended Ruling filed by State of Connecticut, James McGaughey. (Attachments: # 1 # 2 Exhibit part 1 &2)(Blue, A.) (Entered: 09/13/2006)
106 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE RE: denying 76 Motion for Cost and Fees, Approving 103 Recommended Ruling. After Review and over objection, The Magidtrate Judge's recommended ruling is hereby approved and adopted. So ordered. Signed by Judge Robert N. Chatigny on 10/2/06. (Blue, A.) (Entered: 10/04/2006)
107 MOTION for Extension of Time until 10/11/06 to file an opposition to 105 Objection to Recommended Ruling by Northern Corr Inst, Garner Corr Inst, Dept of Corrections. (Blue, A.) (Entered: 10/05/2006)
108 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE RE: 107 MOTION for Extension of Time until 10/11/06 to file an opposition 105 Objection to Recommended Ruling. Denied as moot. So ordered. Signed by Judge Robert N. Chatigny on 10/6/06. (Blue, A.) (Entered: 10/06/2006)
109 ORDER, Signed by Judge Robert N. Chatigny on 11/8/06. (Blue, A.) (Entered: 11/09/2006)
110 ORDER re: Settlement Agreement, Signed by Judge Robert N. Chatigny on 1/8/07. (Blue, A.) (Entered: 01/08/2007)
111 ORDER &NOTICE: Oral argument on the plaintiffs' motion for an order allowing access to prisoner health records (doc. #86) is scheduled for 2/16/07 at 1:00 p.m. before Judge Martinez in the East Courtroom, U.S. District Court, 450 Main Street, Hartford, Connecticut. (Constantine, A.) (Entered: 01/23/2007)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 12 of 14

01/23/2007 02/09/2007 02/16/2007
02/16/2007 03/28/2007 03/30/2007 03/30/2007 06/29/2007 09/17/2007 09/20/2007 09/20/2007 10/05/2007 10/09/2007
11/26/2007 11/26/2007 01/11/2008 01/17/2008 01/24/2008 01/28/2008
02/19/2008

Set Deadlines/Hearings: Oral Argument set for 2/16/2007 01:00 PM in East Courtroom, 450 Main St., Hartford, CT before Judge Donna F. Martinez. (Constantine, A.) (Entered: 01/23/2007)
112 ORDER, Signed by Judge Robert N. Chatigny on 2/8/07. (Blue, A.) (Entered: 02/09/2007)
113 Minute Entry for proceedings held before Judge Donna F. Martinez : Motion Hearing held on 2/16/2007 re 86 MOTION for Allowing acess to prisoner health records Order filed by State of Connecticut, James McGaughey. Total Time: 1 hour and 18 minutes(Court Reporter S. Bowles.) (Wood, R.) (Entered: 02/16/2007)
Motions Taken Under Advisement: 86 MOTION for Allowing acess to prisoner health records Order (Wood, R.) (Entered: 02/16/2007)
114 TRANSCRIPT of Proceedings held on 2/16/07 before Judge Donna F. Martinez. Court Reporter: Bowles Reporting Service. (Blue, A.) (Entered: 03/28/2007)
115 ORDER granting in part and denying in part (doc. # 86 ) plaintiffs' motion for order. See attached ruling. Signed by Judge Donna F. Martinez on 3/30/07. (Constantine, A.) (Entered: 03/30/2007)
116 ORDER granting (doc. # 89 ) plaintiffs' motion to seal. Signed by Judge Donna F. Martinez on 3/30/07. (Constantine, A.) (Entered: 03/30/2007)
117 ORDER re Settlement Agreement, Signed by Judge Robert N. Chatigny on 6/19/07. (Blue, A.) (Entered: 06/29/2007)
118 ORDER re Settlement Agreement, Signed by Judge Robert N. Chatigny on 9/17/07. (Blue, A.) (Entered: 09/17/2007)
119 MOTION for Leave to Appear pro hac vice Attorney Eric Balaban Filing Fee $25.00 Receipt Number H023618, by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 09/20/2007)
120 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE RE: granting 119 Motion to Appear pro hac vice Attorney Eric Balaban, Signed by Clerk on 9/20/07. (Blue, A.) (Entered: 09/20/2007)
121 MOTION for David C. Fathi to Withdraw as Attorney by State of Connecticut, James McGaughey. (Solnit, Benjamin) (Entered: 10/05/2007)
122 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE RE: 121 Motion to Withdraw as Attorney. Attorney David C. Fathi terminated. Granted. So ordered. Signed by Judge Robert N. Chatigny on 10/9/07. (Blue, A.) (Entered: 10/10/2007)
123 ORDER re 75 Order on Settlement Agreement, Signed by Judge Robert N. Chatigny on 11/26/07. (Blue, A.) (Entered: 11/27/2007)
124 ORDER re 75 Order on Settlement Agreement, Signed by Judge Robert N. Chatigny on 11/26/07. (Blue, A.) (Entered: 11/27/2007)
125 ORDER re: Settlement Agreement, Signed by Judge Robert N. Chatigny on 1/10/08. (Blue, A.) (Entered: 01/11/2008)
126 NOTICE of Appearance by David J. McGuire on behalf of State of Connecticut, James McGaughey McGuire, David (McGuire, David) (Entered: 01/17/2008)
127 MOTION for Renee C. Redman to Withdraw as Attorney by State of Connecticut, James McGaughey. (Redman, Renee) (Entered: 01/24/2008)
128 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE RE: 127 Motion to Withdraw as Attorney. Attorney Renee Colette Redman terminated. Granted. So ordered. Signed by Judge Robert N. Chatigny on 1/28/08. (Blue, A.) (Entered: 01/29/2008)
129 ORDER re: Settlement Agreement, Signed by Judge Robert N. Chatigny on 2/19/08. (Blue, A.) (Entered: 02/20/2008)

Case: 3:03-cv-01352-RNC As of: 08/28/2012 10:43 AM EDT 13 of 14

02/20/2008 05/29/2008 08/05/2008 08/05/2008 08/05/2008 08/08/2008
08/13/2008
08/13/2008 08/19/2008
08/19/2008 08/21/2008 08/22/2008 08/25/2008 08/27/2008 08/28/2008 08/28/2008 09/09/2008 09/11/2008 09/23/2008

130 ORDER re Settlement Agreement, Signed by Judge Robert N. Chatigny on 2/20/08. (Blue, A.) (Entered: 02/20/2008)
131 ORDER re Settlement Agreement, Signed by Judge Robert N. Chatigny on 5/28/08. (Blue, A.) (Entered: 05/29/2008)
132 "DOCKETED IN ERROR" MOTION for Status Conference (Immediate) by State of Connecticut, James McGaughey. (Solnit, Benjamin) Modified on 8/5/2008 (Blue, A.). (Entered: 08/05/2008)
133 MOTION for Contempt by State of Connecticut, James McGaughey.Responses due by 8/26/2008 (Blue, A.) (Entered: 08/07/2008)
134 MOTION for Immediate Status Conference by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 08/07/2008)
135 ORDER REFERRING CASE to Magistrate Judge Donna F. Martinez for ruling on pending motions including 133 MOTION for Contempt, 134 MOTION for Immediate Status Conference, Signed by Judge Robert N. Chatigny on 8/8/08. Motions referred to Donna F. Martinez(Blue, A.) (Entered: 08/12/2008)
136 ORDER: A telephonic status conference is scheduled for Friday, 8/22/08 at 1:00 p.m. before Judge Martinez regarding doc. #134. Plaintiff's counsel shall initiate the conference call and shall have opposing counsel on the line when calling chambers at (860) 240−3605. Signed by Judge Donna F. Martinez on 8/13/08. (Constantine, A.) (Entered: 08/13/2008)
Set/Reset Deadlines as to 134 MOTION for Immediate Status Conference. Telephone Status Conference set for 8/22/2008 01:00 PM before Judge Donna F. Martinez (Pesta, J.) (Entered: 08/14/2008)
137 ORDER : The plaintiff's motion for immediate status conference (doc. # 134 ) is granted. A telephonic status conference is scheduled for 8/22/08 at 1:00 p.m. Plaintiffs' counsel shall initiate the conference call and shall have opposing counsel on the line when calling chambers at (860) 240−3605. Signed by Judge Donna F. Martinez on 8/19/08. (Constantine, A.) (Entered: 08/19/2008)
Set Deadlines/Hearings: Telephone Status Conference set for 8/22/2008 01:00 PM before Judge Donna F. Martinez (Pesta, J.) (Entered: 08/20/2008)
138 RESPONSE re 134 MOTION for Immediate Status Conference filed by Northern Corr Inst, Garner Corr Inst, Dept of Corrections. (Blue, A.) (Entered: 08/21/2008)
139 Minute Entry for proceedings held before Judge Donna F. Martinez: Telephone Status Conference held on 8/22/2008; 15 minutes (Pesta, J.) (Entered: 08/22/2008)
140 ORDER re Settlement Agreement, Signed by Judge Robert N. Chatigny on 8/21/08. (Blue, A.) (Entered: 08/25/2008)
141 MOTION to Withdraw 133 MOTION for Contempt by State of Connecticut, James McGaughey. (Blue, A.) (Entered: 08/27/2008)
142 ORDER granting 141 plaintiffs' motion to withdraw the motion for contempt. Signed by Judge Donna F. Martinez on 8/28/08. (Constantine, A.) (Entered: 08/28/2008)
143 ORDER: The plaintiffs' motion for contempt (doc. # 133 ) is withdrawn at the request of the moving party. See doc. #141, 142. Signed by Judge Donna F. Martinez on 8/28/08. (Constantine, A.) (Entered: 08/28/2008)
144 ORDER re Settlement Agreement, Signed by Judge Robert N. Chatigny on 9/8/08. (Blue, A.) (Entered: 09/09/2008)
145 AMENDMENT re Settlement Agreement by State of Connecticut, James McGaughey, Northern Corr Inst, Garner Corr Inst, Dept of Corrections (Blue, A.) (Entered: 09/11/2008)
146 ORDER re Settlement Agreement, Signed by Judge Robert N. Chatigny on 9/23/08. (Blue, A.) (Entered: 09/23/2008)

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09/30/2008 10/03/2008

147 ORDER re Settlement Agreement, Signed by Judge Robert N. Chatigny on 9/30/08. (Blue, A.) (Entered: 09/30/2008)
148 CORRECTED ORDER re Settlement Agreement, Signed by Judge Robert N. Chatigny on 10/3/08. (Blue, A.) (Entered: 10/03/2008)

 
 RESOLUTION APPROVING THE SETTLEMENT AGREEMENT IN STATE OF CON... Page 1 of 3

General Assembly
February Session, 2004

File No. 641
House Resolution No. 24

House of Representatives, April 21, 2004

The House Committee on Judiciary reported through REP. LAWLOR of the 99th Dist., Chairperson of the Committee on the part of the House, that the resolution ought to be adopted.
RESOLUTION APPROVING THE SETTLEMENT AGREEMENT IN STATE OF CONNECTICUT OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES V. CHOINSKI, ET AL.
Resolved by this House:
That the provisions of the settlement agreement in the action State of Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Choinski, et al., United States District Court, District of Connecticut, Civil Action No. 3:03CV1352 (RNC), dated March 8, 2004, requiring expenditure from the General Fund budget in excess of two million five hundred thousand dollars and submitted by the Attorney General to this Assembly for approval in accordance with section 3-125a of the general statutes, are approved.

JUD

House Favorable

The following fiscal impact statement and bill analysis are prepared for the benefit of members of the General Assembly, solely for the purpose of information, summarization, and explanation, and do not represent the intent of the General Assembly or either House thereof for any purpose:
OFA Fiscal Note
State Impact:

Agency Affected
Correction, Dept.; Comptroller Misc. Accounts (Fringe Benefits)
Protection & Advocacy, Off.;

Fund-Effect GF - Cost
GF - None

FY 05 $

FY 06 $

See Below See Below

None

None

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Mental Health & Addiction Serv., Dept.; Attorney General

Note: GF=General Fund
Municipal Impact: None
Explanation
The state of Connecticut reached a three-year settlement agreement in the case of the Office of Protection and Advocacy v. Choinski in order to address a claim of cruel and unusual punishment regarding the operation of Northern Correctional Institution (NCI) and its impact on inmates with mental illnesses. The NCI is the state’s sole maximumsecurity prison that currently houses about 400 inmates. Furthermore, there was an additional claim that mental health care at Garner Correctional Institution was inadequate. The 3-year settlement involves the following:

PROVISION

FY 05 costs

FY 06 costs

FY 07 costs

Evaluate NCI population to determine necessary transfers to Garner

$1,000,000

None

None

Increase staffing at Garner for mental health services and supervision

$1,400,000 (DOC)

$1,400,000 (DOC)

$1,400,000 (DOC)

$283,220 (fringe) $641,480 (fringe) $641,480 (fringe)

Change restraint of prisoners and prisoner discipline policy at NCI and Garner

None

None

None

Plaintiff attorney $190,000 + Up to Up to $25,000

fees

$25,000

Up to $25,000

Plaintiffs’ monitor compliance plus mediation costs, if necessary

$40,000 +

$40,000 +

Up to $15,000 Up to $15,000

$40,000 + Up to $15,000

State monitor agreement

None

None

None

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compliance (DOC & DMHAS)
The Revised FY 05 Appropriations Act, as recently reported by the Appropriations Committee, includes funding to cover FY 05 costs associated with the settlement agreement.1 Under the agreement, the plaintiffs will also be able to recover certain costs of up to $80,000 annually in FY 06 and FY 07 for attorney fees and monitor compliance. These costs are not specifically provided for in the bill or otherwise, however, funding could be made through the Office of Policy and Management’s Litigation/Settlement account or the Adjudicated Claims account within the Office of the State Comptroller. Finally, it is expected that the additional staff required under the agreement will remain in place after the agreement expires and therefore, permanently increase the budget base of the General Fund as pertaining to the Department of Correction.2

OLR Bill Analysis HR-24

RESOLUTION APPROVING THE SETTLEMENT AGREEMENT IN STATE OF CONNECTICUT OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES V. CHOINSKI, ET AL.
SUMMARY:
The Office of Legislative Research does not analyze Resolutions.

COMMITTEE ACTION Judiciary Committee House Favorable Report

Yea 33 TOP

Nay 0

1 Section 43 of sHB 5033, the Revised FY 05 Appropriations Act, carries forward $1,250,000 in Personal Services funding and transfers it to the Other Expenses account to pay for the cost of mental health assessments and plaintiff attorney fees.

2 This funding ($1.4 million and fringes) is intended to support 28 additional staff including 16 nurses, 11 clinical therapists and a psychologist.

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 JUD Committee Hearing Transcript for 04/13/2004

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April 13, 2004
gmh JUDICIARY COMMITTEE 2:30 P.M.
PRESIDING CHAIRMAN: Senator McDonald
MEMBERS PRESENT:
SENATORS: Murphy, Kissel, Coleman, Daily,
Roraback
REPRESENTATIVES: Lawlor, Stone, Farr, Abrams,
Boukus, Conway, Fritz, Giegler,
Godfrey, Graziani, Hamm, Hovey,
Klarides, Labriola, McMahon,
Michele, O'Neill, Peters,
Powers, Rowe, Serra, Spallone,
Winkler
SENATOR MCDONALD: Would the committee please come to order. We have a public hearing first today followed by the committee meeting immediately thereafter.
We have two items on our public hearing agenda today. The first is dual resolutions, S.R. 21 and H.R. 24, RESOLUTIONS APPROVING THE SETTLEMENT AGREEMENT IN STATE OF CONNECTICUT OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES VERSUS CHOINSKI, ET AL.
I believe we have with us this afternoon two individuals, Deputy Attorney General Carolyn Querijero and Brian Murphy from the Department of Corrections.
Good afternoon.
CAROLYN QUERIJERO: Good afternoon. Senator McDonald, Representative Lawlor and members of the committee, my name is Carolyn Querijero. I'm the Deputy Attorney General and I'm here to recommend approval of H.R. 24 and S.R. 21, which is the case of PNA vs. Choinski.
Basically, this is a case that was brought claiming that the

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Department of Correction is violating the 8th Amendment rights of inmates with serious mental illness or either in causing the mental illness at Northern or in exacerbating mental illness that exists in inmates who already are mentally ill when they are admitted and also it is also claiming that the facilities for treatment of mentally ill inmates at Garner is constitutionally inadequate.
I should say that lawsuits of this type have been filed around the country, making similar allegations and in almost every case, the State has lost when it has gone to trial and has suffered major judgments against it.
Because of that, we entered into negotiations with the plaintiffs early in the process of the case to see if we could come to some resolution that would be in conjunction with the goals of the Department of Corrections and also satisfy the claims brought by the plaintiffs.
And I'm happy to say that we worked out an agreement that we believe does do both. The Deputy Commissioner of Corrections is here today and I believe he will say -- he will support me in saying that this is something that the Commissioner, Commissioner Lantz is very interested in. She has been looking into the issue of the provision of services to mentally ill inmates since she took office and she supports this settlement. In fact, she was already moving in the direction of the settlement before the suit was brought.
Basically, the settlement agreement provides that services for seriously mentally ill will be consolidated at Garner Correctional Institution in Newtown. The advantage of that and this is something that the Commissioner had already begun doing, is to provide better services to the inmates, but also a more efficient and cost effective way by consolidating and having specialized staff in one location.
To accomplish this right now with the inmates who are at Northern currently who maybe in need of being transferred, an evaluation of the prison population at Northern will be conducted to assess whether any inmates are seriously ill, mentally ill within the definitions contained in the agreement and if so, those inmates will be transferred to Garner.
So there is an initial evaluation of current inmates at Northern. And that one time evaluation, by the way, that will be conducted by members of the UConn Health Center Psychiatric staff.

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SEN. MCDONALD: Excuse me one second. There's a lot of other conversations going on in the room and I'm actually having a difficult time hearing. If you do have conversations that need to be held, please do so outside of the committee room and I apologize for interrupting.
CAROLYN QUERIJERO: Thank you. The cost of that evaluation is estimated at $1 million, one time, and that has been included in the budget in Section 4 of the budget document, as I understand it.
That and the amount will also include the attorney's fees which are scheduled at $190,000, plus -- well, I'll continue with this and then I'll give you more information on that.
The cost of increased staffing and services at Garner are estimated at $1.4 million annually and that has been included within DOC budget and as I was saying, they had already been moving in that direction to consolidate staff at Garner anyway and they were planning to do that anyway.
This agreement will be entered as an agreement with the court and it is structured so that it will last for three years and then it will end. We have language in the agreement that the jurisdiction of the court -- first of all, there will not be continuing jurisdiction by the Federal Court. That's always a concern in these types of cases. We've structured it so that there will not be continuing jurisdiction of the court other than to rule on a motion that could be filed for non-compliance with the agreement. Other than that, there's no continuing oversight by the court.
There will be consultants for both the plaintiffs and the Department of Corrections who will review the process of this, the three year agreement, but these consultants are not monitors appointed by the court or reporting to the court. They will only be reporting to the parties.
And if the plaintiffs believe that the defendants are in violation of the agreement, their only recourse is to file a motion with the court for substantial non-compliance and this is all spelled out. It would have to be substantial and a pattern, not just one incident, etcetera and the only remedy would be an order of specific performance.
The financial impact of this has also been spelled out clearly in the agreement so that the cost of the consultants is no more than $40,000 per year for three years, plus the possibility of an additional $15,000 a year if mediation is needed.

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And the court, at the end of the three years, will lose all jurisdiction, even if there are motions pending at that time, the court will not be able to act on them.
As I've said, we reviewed other cases throughout the country that have raised these types of claims in these situations and the costs and the orders have been much more, the costs have been much greater and the intrusiveness into the State operations have been much, much deeper. So we feel that this is a good outcome for the State of Connecticut, both in the treatment of its mentally ill inmates and in the proper operation of the prisons in the system.
And so we recommend approval of these two measures.
SEN. MCDONALD: Thank you very much. Are there questions from members of the committee? Representative Lawlor.
REP. LAWLOR: Thank you, Mr. Chairman. First of all, since this is a relatively recent phenomena, I think it's important that the committee understand that our role here is simply to render either a favorable or an unfavorable report on this particular agreement. So it was only a few years ago that the Legislature began to review these stipulated agreements. I forget what the threshold is. Two million dollars or something like that?
CAROLYN QUERIJERO: Two point five.
REP. LAWLOR: Two point five million is the threshold, but the only relevant action the Legislature could take is if it deemed that this should be rejected, a three-fifths vote in both Houses would, in fact, reject this agreement. Otherwise, it stands.
And so we're obligated to take a vote here in the committee either favorable or unfavorable. Other than that, the only way it can be denied is a three-fifths vote in both Houses.
But I want to say on the merits of the proposal, you know, it sounds very good, but I think sometimes we lose sight of the fact that sort of in the bigger picture, this is not where we should be providing mental health services and for a variety of reasons, this population has ended up in the Department of Correction and I think from the point of view of the Department, it's more prudent to provide these along one location than it would have been elsewhere, but I think the ideal solution to the problem, which we shouldn't lose track of, is to minimize the number of mentally ill persons or persons with mental illness in the system and many of them, I believe at Garner, correct me if I'm wrong, -- I see the Deputy Commissioner is here -- many of

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them are pretrial inmates. Many in on relatively minor charges, whose main issue is mental illness not sort of criminal behavior.
And so I think our ongoing goal should be to relieve the Department of Corrections of this particular burden because I think it can be more cost effectively done in other state agencies and by community providers.
So, this is a good solution to a very specific problem, but it's not a long term solution to a very big problem, but nonetheless, I think it's a good idea and an appropriate settlement.
I just want to congratulate you because I know this began as a very sensitive negotiation and there was an attempt not to politicize this and I think everybody participated in that in good faith and I think it's a good outcome.
So, congratulations.
CAROLYN QUERIJERO: Thank you.
SEN. MCDONALD: Thank you. Representative Farr.
REP. FARR: Yes, I wanted to join in on Representative Lawlor's comments about congratulating you and recognizing how difficult this was.
But I do think there's a balance that we have to have here and the balance is to recognize that in many cases, while Representative Lawlor said there's a lot of people in our facilities that have mental illness for non-serious criminal acts, there are also a lot of people in our facilities that have mental illness, who have done very serious criminal acts. And, of course, when you're talking about people at Northern, those are people who usually have very severe behavior problems. That's why they're in Northern in the first place.
And I think the balance that we have to reach is to recognize that it's easy to talk about the fact that somebody shouldn't be restrained or shouldn't be in isolation because that contributes to his mental illness. We have to balance that off at the fact that if that person isn't in isolation, or isn't restrained, it increases the risk to other inmates, as well as to the members of the -- the guards and the employees of the facility.
So I think that's the balance and the balance you try to strike here.

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I guess I have a series of questions, though, on the agreement. The first one is on page seven, on Section 1 where you said, "absent exigent circumstances, no seriously mentally ill prisoner shall be transferred to administrative segregation without prior notice to the plaintiffs."
I guess my concern here is that prisoners are usually put into segregation because they're having a behavior problem with them. And this would seem to say that -- I believe it also says you give the plaintiff at least days advance notice of transfers. And I'm concerned here about the fact that this may reduce your ability to get proper behavior in the facilities and put people at risk.
I wonder if maybe somebody from the facility can comment on that language.
BRIAN MURPHY: Good afternoon, Representative Farr, committee members. I'd like to address that.
First of all, the Commissioner of Police supports this agreement. Over the last seven months, negotiations between the Attorney General's Office, the Department of Corrections and OPA, I think someone said it, maybe Representative Lawlor, were very intense and were attended by myself and Warden Choinski. And one of the balances we wanted to make sure that we struck is that we were not closed -- it was not closed ended and that we could deal with the type of situations that Representative Farr just alluded to.
He's very correct in that you have some very dangerous individuals who do have mental illness. This agreement allows us to handle those individuals with the appropriate checks and balances and the example you've just given, should someone seriously assault an inmate or a staff member at a facility, what we're saying here is the ascending facility has to have them evaluated for mental illness in the definition that was derived by the experts. If that is not done there, we still have the ability to send that individual to Northern and within three business days, a mental health professional should have evaluated that individual to see if they meet the definition of severe mental illness.
So, Representative Farr, I fully understand. I'm kind of smiling because I advocated for the same position, not to close ourselves off to be able to manage certain individuals at Northern. With appropriate programming, special programming, if necessary, if they deserve that type of environment.

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REP. FARR: I'm going to have to rely a lot upon, obviously, your department in representing that this is an agreement which will allow you to keep the proper control without jeopardizing the safety of the inmates or our staff because that's a grave concern to me. I mean, I understand we're not -- I think this agreement, a lot of the thrust it to recognize that people with mental illness, if you put them into isolation or put them in restraints, you may make things worse for them, but we have to balance that with the safety issue and we can never forget that that's a very serious problem that you're dealing with on a dayto-day basis in your facilities.
And there was another language in here -- well there's, I guess, two questions. One is on page 14, it talks about "that defendants shall install, and maintain in good working order, calendar clocks that are visible in the cells." Exactly what are calendar clocks? I assume that that's just a clock with a day on it? Is that --
BRIAN MURPHY: Yes it is, sir. The experts testified basically that places like Northern deprive sensory deprivation and there's -- they believe there are cases where people have lost track of the time and date. So as a solution to this, an agreement was made to put those clocks where the inmates could see them so they know what time it is, number one, and they know the day.
REP. FARR: And then this agreement was going to apply, as I understand it, only to prisoners at Northern or at -- what's the other one?
CAROLYN QUERIJERO: Garner.
BRIAN MURPHY: Garner CI.
REP. FARR: Garner. And paragraph 5a talks about "no prisoner shall have a prescription changed or discontinued without prior notice." Was that intended to be just prisoners at those two facilities?
BRIAN MURPHY: Yes.
REP. FARR: And the same with paragraph six. It says, "prisoners shall have the opportunity to request mental health services seven days a week through a confidential written request system." Was that in the entire facility or intended to be those two facilities?
BRIAN MURPHY: Those are those two facilities, but if I may add,

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it's part of our strategic plan. When offenders and part of the mental health consolidation, if you will, when offenders come into the Department of Corrections, they come into basically the primary jails, Hartford, Bridgeport, and New Haven, CorriganRadgowski. We also, as part of this process and part of our strategic plan, will have a certain time period when individuals, once they're assessed, have to be moved to Garner CI because of their mental health condition. If they meet the definition, there should be a time period no longer than 72 hours that they do go to that facility.
REP. FARR: So you envision everybody will, that has a mental problem, end up in those two facilities, but these benefits or these procedures will be followed in those facilities, but don't have to be followed in every facility that you operate?
BRIAN MURPHY: Well, you're part right and you're part wrong, sir. We don't want to put people who are identified with severe mental illness at Northern. We're basically agreeing to that. We are agreeing, I think, that Garner will be our mental health facility for the Department of Corrections for individuals with mental health issues.
I think what I'm trying to say is we're trying to incorporate the matters that make good correctional sense for the Department of Corrections and I will go back to the example I just used of the new intake coming in off the street at a facility whose identified with severe mental illness. Once that person's identified, we want to move them to the appropriate facility which will be Garner to address their mental health issues.
REP. FARR: Where are people held now when they've been sentenced to death?
BRIAN MURPHY: Northern, sir.
REP. FARR: And would those people, if anybody whose on death row has a severe mental illness, would they then be moved to Garner?
BRIAN MURPHY: That is a possibility. However, there are clauses in this agreement where exigent circumstances, the Commissioner cannot do that, as long as we set up the appropriate programs for mental health for that individual.
That is one of the issues, sir, that basically the correctional experts and the UConn experts will get together and if necessary, devise a plan for that individual at Northern.
REP. FARR: Okay, thank you very much.

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SEN. MCDONALD: Thank you. Representative Stone.
REP. STONE: Thank you. Thank you, Mr. Chairman. And this is perhaps to the Attorney General or the Assistant Attorney General, Deputy Attorney General. Thank you.
You indicated that the court is not retaining jurisdiction in the case, but would have jurisdiction to hear motions for contempt, I assume, in the event that any provisions of this agreement are violated.
CAROLYN QUERIJERO: That's correct.
REP. STONE: Is that --
CAROLYN QUERIJERO: It --
REP. STONE: I don't know how the court cannot retain jurisdiction, but also entertain --
CAROLYN QUERIJERO: He's retaining jurisdiction only for that purpose. Generally in these consent decrees, the judge retains jurisdiction throughout the case. He has a monitor reporting to him. He can open it. He can issue orders. He reviews the monitor's report. He can sua sponte, do things here. No, we've been very careful to say that all jurisdiction ends with the exception if the plaintiffs were to file a motion.
REP. STONE: Someone else has to do something in order for that -
CAROLYN QUERIJERO: Correct.
REP. STONE: Okay. And when was the case first filed, do you recall?
CAROLYN QUERIJERO: It was first filed last -- was it September?
BRIAN MURPHY: I want to say May, but -- it was filed in August.
REP. STONE: August of 2003?
CAROLYN QUERIJERO: 2003.
REP. STONE: 2003. And you reviewed -- there's some cost associated with this, attorney's fees, etcetera. You've been able to review those and those are all related to events that occurred since August to now?

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CAROLYN QUERIJERO: Yes and we actually went through the costs that they presented and we knocked it down a fair amount. I don't recall the exact figures, but almost by half that we reduced what they had put in. So we were very diligent in making sure --
REP. STONE: Okay, it's not part of here, that's why -- it's not part of my package.
And then are there -- there will be a judgment entered?
CAROLYN QUERIJERO: There will be a judgment entered, yes.
REP. STONE: A judgment in accordance with this agreement?
CAROLYN QUERIJERO: Yes.
REP. STONE: Are there any other individual cases pending upon which an individual plaintiff can rely upon these representations or the obligations of the State under this agreement in pursuing their claim on those individual cases?
CAROLYN QUERIJERO: It's just to clarify, it's a judgment of dismissal. That's where I say the court doesn't retain jurisdiction on an ongoing basis. It's just -- so it's actually going to be dismissed with the court retaining just the right to hear motions.
REP. STONE: And this will be filed with the court?
CAROLYN QUERIJERO: This will be filed with the court, but are there any cases that you're aware of that are pending right now? I'm referring to two of our attorneys who worked on it, that would be effected by this?
No.
REP. STONE: Okay, so there's no individual cases out there claiming damages for the State not doing some of the things that they're now maybe required to do?
CAROLYN QUERIJERO: No, not that we're aware of.
REP. STONE: Alright, thank you. Thank you, Mr. Chairman.
SEN. MCDONALD: Thank you. Are there any other members of the committee who have questions? If not, thank you very much for your time, both of you.

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CAROLYN QUERIJERO: Thank you.
SEN. MCDONALD: The other item on the public hearing agenda is the nomination of the Honorable William Holden of Bridgeport to be a Judge of the Superior Court.
Good afternoon, Your Honor. Would you please rise your right hand. Please raise your right hand.
Do you swear that the testimony you're about to give is the truth, the whole truth, and nothing but the truth?
JUDGE WILLIAM HOLDEN: I do.
SEN. MCDONALD: Please be seated. And welcome.
JUDGE WILLIAM HOLDEN: Thank you.
SEN. MCDONALD: Obviously, it's a pleasure to have you here and normally what we do on judicial nominations is to afford the nominee an opportunity to make an opening statement to the committee and tell us a little bit about yourself and what you've been doing on the Bench for the last eight years and then we open it up to members for questions.
So, welcome.
JUDGE WILLIAM HOLDEN: Welcome. I thank you for allowing me this opportunity to appear before you and scheduling this nomination, my nomination in this public hearing.
I thank the Governor for submitting my nomination and I apologize to this august body for any delay due to me in presenting the papers necessary to complete this process. Thank you again for scheduling this nomination.
Now I have been a Judge for the past seven years. I've had the privilege, thanks to this body --
SEN. MCDONALD: Excuse me. I'm sorry, Your Honor. Is your microphone on? It seems just --
JUDGE WILLIAM HOLDEN: I've said all that and it wasn't recorded. I have to start again?
SEN. MCDONALD: There you go.
JUDGE WILLIAM HOLDEN: Alright.

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SEN. MCDONALD: I apologize.
JUDGE WILLIAM HOLDEN: Let me begin by thanking you again for scheduling my nomination to this public hearing. I want to thank the Governor for affording me this opportunity by way of nomination and I apologize for any delay caused this body in my delay in submitting the materials needed for this process.
I've had the privilege of serving this great state for the past seven years as a Judge in the Superior Court. And you, of course, have afforded me that opportunity to serve the people as a Judge for the last seven years.
My, how time flies. I've had the privilege during that period of time of serving as a trial judge in a variety of matters. My primary assignments have been criminal. I've been a trial judge in matters ranging from petty larcenies to serving as a trial judge in matters involving capital felony cases.
I've also had the privilege of serving in a civil and family, and a juvenile capacity. I presently serve as a Judge assigned to criminal matters in the Waterbury JD.
I have tried, throughout my seven years, to conduct my court in a manner befitting judges, as well as the State of Connecticut in a manner with respect and dignity for all who appear before me. And my goal is, no matter the outcome, that each person appearing before this judge can leave feeling that at least they have been heard fairly and they leave with a sense of abiding justice.
Of course, I have been faithful to the Constitution of the United States and the Constitution of this great State, as well as to our laws and statutes.
I thank the Governor again for the opportunity at least to continue to serve in this capacity and I'm humbled by the nomination and I would -- my desire would be to continue to serve in this capacity for the next eight years.
And with that, thank you. Any questions I might answer?
SEN. MCDONALD: I appreciate that, Judge. Are there any members with questions? Representative Stone.
REP. STONE: Thank you, Mr. Chairman. Good afternoon, Your Honor.
JUDGE WILLIAM HOLDEN: Good afternoon.

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REP. STONE: You indicated in your opening statement that you apologize for submitting the information late. Was there a reason why the information was submitted late or the application was submitted late?
JUDGE WILLIAM HOLDEN: The reason would be there were some materials that I did not diligently pursue on my part in a timely fashion to complete the process.
REP. STONE: What materials would that be?
JUDGE WILLIAM HOLDEN: What materials was that, sir? It would be taxes. I filed electronically and for some reason, I didn't have a hard copy and --
REP. STONE: It was this application?
JUDGE WILLIAM HOLDEN: Yes.
REP. STONE: Now, also as part of the application, just there are some (INAUDIBLE-MICRPHONE NOT ON)
JUDGE WILLIAM HOLDEN: I am, sir.
REP. STONE: (INAUDIBLE-MICROPHONE NOT ON)
JUDGE WILLIAM HOLDEN: On that one?
REP. STONE: (INAUDIBLE-MICROPHONE NOT ON) -- any of the other members have that form, as well, but on my form it indicates that question number 23 is "have you been arrested?" and there's no response to that.
SEN. MCDONALD: No, it is true that item number 23 is left blank on the summary questionnaire that was provided to the committee.
JUDGE WILLIAM HOLDEN: Oh, I'm sorry --
REP. STONE: You may have answered it in some other form, but --
JUDGE WILLIAM HOLDEN: I have.
REP. STONE: But I'll ask you again. Have you ever been arrested?
JUDGE WILLIAM HOLDEN: No, sir.
REP. STONE: Okay. Thank you, Judge. And there's also, under item number 26, a requirement that as a sitting judge, submit five memoranda of decisions. I don't have them in my packet, but can

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I assume, Mr. Chairman, that those have been filed, as well?
SEN. MCDONALD: Give me one second. I have to apologize. I did not look at the extended materials that were provided.
REP. STONE: I can look at those, if you'd like.
SEN. MCDONALD: Yes, we do have the memoranda.
REP. STONE: Okay. And again, I just want to make sure the application's complete.
JUDGE WILLIAM HOLDEN: Yes.
REP. STONE: And that everything is in as it is required to be. And I appreciate your candor in terms of why it was late. I think there was at least some concern, at least on my part. You're part of an earlier group or was proposed to be, planned to be part of an earlier group that had come before us, but there was that delay and I just wanted to make sure that you had the opportunity to respond substantively as to why that delay took place.
Thank you very much for your testimony. You're not still in Meriden, are you, Judge?
JUDGE WILLIAM HOLDEN: Waterbury now, sir.
REP. STONE: Waterbury now?
JUDGE WILLIAM HOLDEN: Yes.
REP. STONE: Okay. And prior to -- how long have you been in Waterbury?
JUDGE WILLIAM HOLDEN: Since this term in September.
REP. STONE: Okay. And prior to that was it Meriden?
JUDGE WILLIAM HOLDEN: I was in Meriden about two years ago. I was in Milford just prior to my reassignment to Meriden.
REP. STONE: Okay and handling mostly criminal matters?
JUDGE WILLIAM HOLDEN: Meriden, mostly criminal matters, yes, sir.
REP. STONE: And how about now in Waterbury?

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JUDGE WILLIAM HOLDEN: Now it's all criminal. Meriden, it was a block assignment and sometimes we had to assist in matters of domestic relations.
REP. STONE: Okay. And as between the two, the criminal side and the civil side, you obviously have a background on the criminal side, but tell me about your experience on the civil side and the family side. Do you look forward to getting back into that or do you prefer to --
JUDGE WILLIAM HOLDEN: You try to prepare yourself for every assignment, but my preference would be the criminal side.
REP. STONE: The criminal side. Okay.
JUDGE WILLIAM HOLDEN: Although the judicial branch has a tremendous assistance for judges and colleagues who need assistance. There's always a willingness to assist in every area, every issue that should arise. So it's not a concern, not a problem, but my preference would be, if that's your question, Representative Stone, it would be for criminal.
REP. STONE: Okay. And then one of the -- and I've had the pleasure of appearing before you. One of the things that your, at least in my recollection from two or some odd years ago in Meriden was that you expect counsel to be on time and prepared as they go forward. Is that a fair statement? And rightfully so, by the way.
JUDGE WILLIAM HOLDEN: It's a fair statement and you expect that because we believe that the public expects that and it breeds confidence in the entire judicial process.
REP. STONE: And there maybe and I'm sure you're aware of some circumstances that maybe emergency in nature, exigent in nature, where either counsel or others may not be in court right on time and I'm sure you'd be understanding as we go forward in addressing those situations as they come before you just as the committee, I'm sure, will be understanding in your particular situation of having to delay the formal application until now. Would that be a fair statement?
JUDGE WILLIAM HOLDEN: It's fair to say and I try to tell the lawyers information. As long as I have the information, I can make decisions. If you tell me you're not going to be there and contact the court, it's not a problem.
REP. STONE: Understood and I appreciate that consideration.

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Thank you very much, Judge.
SEN. MCDONALD: Are there other members of the committee? Representative Labriola.
REP. LABRIOLA: Thank you, Mr. Chairman. Just a comment. I also have had the pleasure of appearing before Judge Holden on dozens and dozens of occasions and as Representative Stone alluded to, he is in complete command of his courtroom. I know him to be knowledgeable and thorough and I just wanted to thank you, Judge, for your service to the people of Connecticut.
JUDGE WILLIAM HOLDEN: Thank you.
SEN. MCDONALD: Thank you, Representative. Any other questions from members of the committee?
If not, I just have one, Your Honor. In looking at the questionnaire, it indicates that during your term, I guess nine complaints have been filed with the Judicial Review Council, all of which look like they were dismissed.
Were they all dismissed by the Council itself?
JUDGE WILLIAM HOLDEN: They were. I don't know the reason for that and I talked to my colleagues and in particular, Judge Parker, whose here, Deputy Court Administrator, regarding what prompts those. No judge likes to have those, but they were.
SEN. MCDONALD: It's probably just the fact of being on the Bench, but my question really was, since the last one was apparently dismissed in May of 2003, are there any outstanding complaints of which you are aware?
JUDGE WILLIAM HOLDEN: There's none. Now in regard to whether they were dismissed by -- they all were dismissed by the panel. One, quite frankly, required an appearance, only one.
SEN. MCDONALD: Okay.
JUDGE WILLIAM HOLDEN: And although I say there's none pending, as I got my mail yesterday, there was a Judicial Review certified letter attempted to be delivered and it came after I got home. So I have to go and pick it up.
SEN. MCDONALD: Well, if that's notification of the existence of a complaint, if you would let us know, I'd appreciate it.
JUDGE WILLIAM HOLDEN: I sure will.

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SEN. MCDONALD: Thank you very much.
If there are no other questions from members of the committee, I want to thank you for your time, Your Honor.
JUDGE WILLIAM HOLDEN: Thank you.
SEN. MCDONALD: Are there any members of the public who have signed up to testify at the public hearing of the Judiciary Committee? If not, I will close the public hearing and we will immediately convene the Judiciary Committee meeting.
(Whereupon, the public hearing was adjourned.)

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