Case: 1:15-cv-605 As of: 06/08/2020 11:10 AM EDT 1 of 28
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:15−cv−00605−RLY−TAB

CLOSED

VERMILLION v. PLANK Assigned to: Judge Richard L. Young Referred to: Magistrate Judge Tim A. Baker Case in other court: Indiana Northern, 3:11−cv−00280 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 04/16/2015 Date Terminated: 10/21/2019 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

JAY F. VERMILLION

represented by JAY F. VERMILLION 973683 PENDLETON − CF PENDLETON CORRECTIONAL FACILITY Inmate Mail/Parcels 4490 West Reformatory Road PENDLETON, IN 46064 PRO SE

V.
Defendant
MARK E. LEVENHAGEN Superintendent

represented by David C. Dickmeyer INDIANA ATTORNEY GENERAL Indiana Government Center South, 5th Floor 302 West Washington St. Indianapolis, IN 46204−2770 317−234−2265 Fax: 317−232−7979 Email: David.Dickmeyer@atg.in.gov ATTORNEY TO BE NOTICED
Destiny Reve Scott Wells INDIANA ATTORNEY GENERAL 302 West Washington Street Indiana Government Center South, Fifth Floor Indianapolis, IN 46204 317−234−7121 Fax: 317−232−7979 Email: destiny.wells@atg.in.gov ATTORNEY TO BE NOTICED
Jonathan Paul Nagy INDIANA ATTORNEY GENERAL 302 West Washington Street Indiana Government Center South, Fifth Floor Indianapolis, IN 46204 317−233−8296 Fax: 317−232−7979 Email: jonathan.nagy@atg.in.gov ATTORNEY TO BE NOTICED
Marley Genele Hancock INDIANA ATTORNEY GENERAL 302 West Washington Street Indiana Government Center South, Fifth

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Defendant SALLY NOWATZKE Case Counselor WCU
Defendant BRETT MIZE Director of Op IDOC
Defendant GARY BRENNAN Director of Op WCU

Floor Indianapolis, IN 46204 317−232−6287 Fax: 317−232−7979 Email: marley.hancock@atg.in.gov ATTORNEY TO BE NOTICED
Ryan J. Guillory OFFICE OF ATTORNEY GENERAL CURTIS HILL 302 West Washington Street IGCS−5th Floor Indianapolis, IN 46204 317−234−6875 Fax: 317−232−7979 Email: rguillory@mcneelylaw.com ATTORNEY TO BE NOTICED
represented by David C. Dickmeyer (See above for address) ATTORNEY TO BE NOTICED
Destiny Reve Scott Wells (See above for address) ATTORNEY TO BE NOTICED
Jonathan Paul Nagy (See above for address) ATTORNEY TO BE NOTICED
Marley Genele Hancock (See above for address) ATTORNEY TO BE NOTICED
Ryan J. Guillory (See above for address) ATTORNEY TO BE NOTICED
represented by David C. Dickmeyer (See above for address) ATTORNEY TO BE NOTICED
Destiny Reve Scott Wells (See above for address) ATTORNEY TO BE NOTICED
Jonathan Paul Nagy (See above for address) ATTORNEY TO BE NOTICED
Marley Genele Hancock (See above for address) ATTORNEY TO BE NOTICED
Ryan J. Guillory (See above for address) ATTORNEY TO BE NOTICED
represented by David C. Dickmeyer (See above for address)

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Recruited Counsel ALICE M. MORICAL Recruited Counsel for Plaintiff
Recruited Counsel CHRISTOPHER D. WAGNER Recruited Counsel for Plaintiff
Recruited Counsel MAGGIE E. FILLER Recruited Counsel for Plaintiff
Recruited Counsel LOCKE E. BOWMAN Recruited Counsel for Plaintiff

ATTORNEY TO BE NOTICED
Destiny Reve Scott Wells (See above for address) ATTORNEY TO BE NOTICED
Jonathan Paul Nagy (See above for address) ATTORNEY TO BE NOTICED
Marley Genele Hancock (See above for address) ATTORNEY TO BE NOTICED
Ryan J. Guillory (See above for address) ATTORNEY TO BE NOTICED
represented by Alice McKenzie Morical HOOVER HULL TURNER LLP 111 Monument Circle Suite 4400 P.O. Box 44989 Indianapolis, IN 46244−0989 317−822−4400 Fax: 317−822−0234 Email: amorical@hooverhullturner.com ATTORNEY TO BE NOTICED
represented by Christopher D. Wagner HOOVER HULL TURNER LLP 111 Monument Circle Suite 4400 P.O. Box 44989 Indianapolis, IN 46244−0989 317−822−4400 Fax: 317−822−0234 Email: cwagner@hooverhullturner.com ATTORNEY TO BE NOTICED
represented by Maggie E. Filler RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER 160 East Grand Avenue 6th Floor Chicago, IL 60611 312−503−0899 Email: maggie.filler@macarthurjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Locke E. Bowman NORTHWESTERN PRITZKER SCHOOL OF LAW 375 East Chicago Avenue Chicago, IL 60611 (312) 503−0844 Fax: (312) 503−1272

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Recruited Counsel MATTHEW B. UNDERWOOD
Recruited Counsel MELINDA K. JOHNSON Recruited Counsel for Plaintiff

Email: l−bowman@law.northwestern.edu PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Matthew B. Underwood WILLIAMS & CONNOLLY LLP 725 Twelfth Street Northwest Washington, DC 20005 202−434−5000 Fax: 202−434−5029 Email: munderwood@wc.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Melinda K. Johnson WILLIAMS & CONNOLLY LLP 725 Twelfth Street, Northwest Washington, DC 20005 202−434−5000 Fax: 202−434−5029 Email: mkjohnson@wc.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 07/12/2011
07/12/2011 07/12/2011 08/19/2011
08/23/2011 08/31/2011

# Docket Text
1 DOCUMENT STRICKEN BY ORDER 8 . PRO SE COMPLAINT with 28 copies of summons forms and 28 copies of USM−285 forms and with Jury Demand against Doug Barnes, Celia Bobson, Mark Brennan, Dawn Buss, Ralph Carrasco, Ernestine Cole, Debra Daugherty, Jane Doe, John Doe I, John Doe II, John Doe III, David Dombrowsky, Indiana State of, Robert Johnson, Bessie Leonard, David Leonard, Linda Leonard, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, Charles Penfold, Willard Plank, Stephanie Rothenberg, Craig Travis, D Walker, Larry Warg, Charles Whelan, filed by Jay F Vermillion. (Attachments: # 1 Exhibit − Grievance Reports)(smp) Modified on 7/14/2011 to correct file date (smp). Modified on 10/24/2011 (smp). [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/13/2011)
2 MOTION for Leave to Proceed in forma pauperis by Plaintiff Jay F Vermillion. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/13/2011)
3 MOTION to Appoint Counsel by Plaintiff Jay F Vermillion. (Attachments: # 1 Exhibits 1−6b)(smp) Modified on 7/14/2011 to correct file date (smp). [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/13/2011)
4 ORDER granting 2 Motion for Leave to Proceed in forma pauperis; orders facility having custody of Plaintiff to deduct $11.99 from his inmate trust account in payment of the initial partial filing fee; orders plaintiff to pay (and the facility having custody of him to automatically remit) to this court 20% of money he receives for each calendar month during which he receives $10.00 or more, until the $350.00 filing fee is paid in full. Signed by Judge Joseph S Van Bokkelen on 8/19/2011. (cc: Supt Westville Correctional) (kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 08/19/2011)
5 Letter from Jay Vermillion asking for something confirming that materials were received. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 08/24/2011)
6 Payment of initial partial Filing fee: $ 11.99, receipt number 3002091 (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 09/01/2011)

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09/07/2011 10/03/2011 10/21/2011
10/24/2011 11/03/2011 11/16/2011
11/16/2011 11/17/2011 02/02/2012
03/07/2012
03/07/2012 04/24/2012 05/08/2012

7 ORDER denying as premature 3 Motion to Appoint Counsel. Plaintiff may renew his motion for appointment of counsel after the Court has screened his complaint. Signed by Magistrate Judge Christopher A Nuechterlein on 9/7/11. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 09/07/2011)
Partial filing fee received: $ 8.00, receipt number INN3002295 (kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 10/05/2011)
8 OPINION AND ORDER striking 1 Pro Se Complaint,, filed by Jay F Vermillion; amended complaint to be filed by 12/9/2011. Clerk to send blank 1983 form, summons and 285 forms. Signed by Judge Joseph S Van Bokkelen on 10/21/11. (sent 1983 form, 12 summons and 12 USM−285 forms) (smp) Modified on 10/24/2011 to correct type (smp). [Transferred from Indiana Northern on 4/16/2015.] (Entered: 10/24/2011)
9 BALANCE of Filing fee: $ 330.01, receipt number 3002626 (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 10/24/2011)
10 MOTION to Alter and/or Amend Judgment by Plaintiff Jay F Vermillion. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 11/07/2011)
11 STRICKEN BY ORDER 13 . AMENDED COMPLAINT against Doug Barnes, Celia Bobson, Mark Brennan, Dawn Buss, Ralph Carrasco, Ernestine Cole, Debra Daugherty, Jane Doe, John Doe I, John Doe II, John Doe III, David Dombrowsky, Indiana State of, Robert Johnson, Bessie Leonard, David Leonard, Linda Leonard, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, Charles Penfold, Willard Plank, Stephanie Rothenberg, Craig Travis, D Walker, Larry Warg, Charles Whelan, Gary Brennan, filed by Jay F Vermillion.(smp) Modified on 2/2/2012 (smp). [Transferred from Indiana Northern on 4/16/2015.] (Entered: 11/17/2011)
RECEIPT of summons and 285 forms for defendants Gary Brennan and Dawn Walker from Jay F Vermillion. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 11/17/2011)
12 ORDER denying as moot 10 Motion to Alter Judgment. Signed by Judge Joseph S Van Bokkelen on 11/17/11. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 11/18/2011)
13 ORDER striking 11 Amended Complaint, filed by Jay F Vermillion, amended complaint containing only a single claim or related claims arising at the same facility to be filed by 3/8/2012.. Signed by Judge Joseph S Van Bokkelen on 2/2/12. (1983 form, summons and 285 forms sent)(smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 02/02/2012)
14 SECOND AMENDED COMPLAINT against Doug Barnes, Celia Bobson, Gary Brennan, Dawn Buss, Ralph Carrasco, Ernestine Cole, David Dombrowsky, Indiana State of (In Dept of Corr), Robert Johnson, Bessie Leonard, David Leonard, Linda Leonard, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, Charles Penfold, Willard Plank, Stephanie Rothenberg, Craig Travis, Dawn Walker, Larry Warg, Charles Whelan, filed by Jay F Vermillion.(smp) Modified on 3/8/2012 to add text "second" (smp). [Transferred from Indiana Northern on 4/16/2015.] (Entered: 03/08/2012)
15 Letter from Jay Vermillion stating that summons and 285 forms were sent with first amended complaint of 11/14/11. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 03/08/2012)
16 NOTICE of Related Action by Jay F Vermillion (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 04/25/2012)
17 ORDER re 14 Second Amended Complaint, filed by Jay F Vermillion, DENYING plaintiff leave to proceed against multiple defendants on unrelated claims in his Second Amended Complaint; GRANTING leave to proceed against Defendants Mark Levenhagen, Howard Morton, Gary Brennan, Bret Mize and Sally Nowatzke in their individual capacities on claim in paragraphs E and F; DISMISSING and other claims and DISMISSING Party Dawn Buss, Ralph Carrasco, Ernestine Cole, David Dombrowsky, Indiana State of, Robert Johnson, Bessie Leonard, David Leonard, Linda Leonard, Charles Penfold, Willard Plank, Stephanie Rothenberg, Craig Travis, Dawn Walker, Larry Warg, Charles Whelan, Doug Barnes and Celia Bobson. USM to

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05/09/2012 06/04/2012 06/15/2012 06/15/2012 06/15/2012 06/15/2012 06/21/2012 06/26/2012 06/26/2012 06/26/2012 06/26/2012 06/26/2012 07/03/2012 07/13/2012 09/04/2012 10/19/2012
11/05/2012

effect service. Signed by Judge Joseph S Van Bokkelen on 5/8/12. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/09/2012)
18 Summons Issued as to Gary Brennan, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/09/2012)
19 MOTION to Reconsider, Alter, and/or Amend Judgment by Plaintiff Jay F Vermillion. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/05/2012)
20 NOTICE of Appearance by Timothy Allon Renfro, Jr on behalf of Gary Brennan, Mark Levenhagen, Howard Morton, Sally Nowatzke (Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/15/2012)
21 NOTICE by Gary Brennan, Mark Levenhagen, Howard Morton, Sally Nowatzke re 14 Amended Complaint, Initial Extension of Time (Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/15/2012)
22 NOTICE of Appearance by Betsy M Isenberg on behalf of Gary Brennan, Mark Levenhagen, Howard Morton, Sally Nowatzke (Isenberg, Betsy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/15/2012)
Reset Deadlines: Answer due 7/13/12 for defendants Brennan, Levenhagen, Morton, Nowatzke (jld) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/18/2012)
23 Summons Returned Unexecuted by Jay F Vermillion as to Brett Mize. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/25/2012)
24 SUMMONS Returned Executed by Jay F Vermillion. Gary Brennan served on 5/25/2012, answer due 6/15/2012. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/27/2012)
25 SUMMONS Returned Executed by Jay F Vermillion. Howard Morton served on 5/25/2012, answer due 6/15/2012. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/27/2012)
Reset Answer Deadlines for defendants Morton and Brennan to 7/13/12 per 21 . (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/27/2012)
26 SUMMONS Returned Executed by Jay F Vermillion. Mark Levenhagen served on 5/25/2012, answer due 7/13/2012 per 12 . (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/27/2012)
27 SUMMONS Returned Executed by Jay F Vermillion. Sally Nowatzke served on 5/25/2012, answer due 7/13/2012 per 12 . (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/27/2012)
28 Letter from Jay Vermillion requesting copy of 19 . (Sent) (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/05/2012)
29 ANSWER to 14 Amended Complaint, and Statement of Defenses by Gary Brennan, Mark Levenhagen, Howard Morton, Sally Nowatzke.(Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/13/2012)
31 Letter from Jay Vermillion re: Motion for reconsideration (kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 09/06/2012)
32 ORDER vacating 30 scheduling order. The Court will reenter a scheduling order after the Court rules on the Plaintiff's motion to reconsider the screening order. Signed by Magistrate Judge Christopher A Nuechterlein on 10/19/12. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 10/19/2012)
33 ORDER granting in part and denying in part 19 MOTION to Alter Judgment filed by Jay F Vermillion., ( Plaintiff to advise the Court by 12/7/12 whether he wishes to continue on claim that officials violated his 14th amendment rights when they transferred him to WCU, or against a Defendant on other claims). Signed by Judge Joseph S Van Bokkelen on 11/5/12. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 11/06/2012)

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12/03/2012 02/27/2013 04/12/2013 04/25/2013 04/29/2013 05/09/2013 05/10/2013 05/29/2013 07/03/2013 07/03/2013 07/15/2013
07/16/2013
07/22/2013 07/23/2013 07/25/2013

34 MOTION for Reconsideration re 33 Order by Plaintiff Jay F Vermillion. (Attachments: # 1 Memorandum in Support)(jld) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 12/04/2012)
35 NOTICE of Change of Address by Jay F Vermillion from Westville Control Unit to Pendleton Correctional Facility. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 02/28/2013)
36 ORDER for clerk to forward copy of 4 Order on Motion for Leave to Proceed in forma pauperis, to the Superintendent of the Pendleton Correctional Facility. Signed by Magistrate Judge Christopher A Nuechterlein on 4/12/13. (smp) (Copy to Supt Pendleton) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 04/12/2013)
37 Letter from Jay Vermillion re order of 4/12/13 which stated that he still owed $330.01. (Attached receipt which shows payment) (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 04/29/2013)
38 MOTION to Withdraw as Attorney of record by Defendants Gary Brennan, Mark Levenhagen, Howard Morton, Sally Nowatzke. (Isenberg, Betsy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 04/29/2013)
39 ORDER advising Superintendent of the Pendleton Correctional Facility that plaintiff Jay Vermillion has paid the filing fee in this case in full. Signed by Magistrate Judge Christopher A Nuechterlein on 5/9/13. (smp)(Copy to Supt) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/09/2013)
40 ORDER granting 38 Motion to Withdraw as Attorney. Attorney Betsy M Isenberg terminated as counsel for defendants. Signed by Magistrate Judge Christopher A Nuechterlein on 5/10/13. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/10/2013)
41 ORDER TO SHOW CAUSE Response to Order to Show Cause due by 6/27/2013 to show cause why defendant Mize should not be dismissed from this case pursuant to FRCP 4(m). Signed by Magistrate Judge Christopher A Nuechterlein on 5/29/13. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/29/2013)
42 RESPONSE TO ORDER TO SHOW CAUSE by Jay F Vermillion filed by Jay F Vermillion. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/09/2013)
43 MOTION for Extension of Time to serve process on defendant Mize by Plaintiff Jay F Vermillion. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/09/2013)
44 OPINION AND ORDER denying 34 Motion for Reconsideration. Dispositive motions to be filed by 10/7/2013. All discovery is STAYED pending the filing of notice that defendants waive their opportunity to file dispositive motion, or resolution of the dispositive motion, except discovery directed at the question of exhaustion. Signed by Judge Joseph S Van Bokkelen on 7/15/13. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/16/2013)
45 ORDER granting 43 Motion for Extension of Time to provide the Court with new summons and USM−285 forms for Defendant Mize. Deficiency to be cured by 8/30/2013,. Signed by Judge Joseph S Van Bokkelen on 7/16/13. (smp) (2 summonses and 1 285 form sent) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/19/2013)
46 NOTICE OF MOTION by Jay F Vermillion (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/23/2013)
47 MOTION to Amend 14 Second Amended Complaint, by Plaintiff Jay F Vermillion. (Attachments: # 1 Amended Complaint)(smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/23/2013)
48 NOTICE of Change of Address by Jay F Vermillion from Westville Control Unit to Pendleton Correctional Facility (Indiana State Reformatory). (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/26/2013)

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08/06/2013 08/30/2013 09/04/2013 09/04/2013 10/07/2013 10/07/2013 10/07/2013 10/25/2013 12/09/2013 01/09/2014 01/15/2014
01/15/2014
02/27/2014 03/12/2014 03/19/2014

49 ORDER denying 47 Motion for leave to amend. Signed by Magistrate Judge Christopher A Nuechterlein on 8/6/13. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 08/07/2013)
50 RECEIPT of completed summons and 285 form for defendant Mize from Jay F Vermillion. (Attachments: # 1 2 proposed summons, # 2 USM−285)(smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 09/03/2013)
51 ORDER re 50 Receipt filed by Jay F Vermillion. Court directs USM to attempt service on Defendant Brett Mize at the address provided. Signed by Judge Joseph S Van Bokkelen on 9/4/13. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 09/04/2013)
52 ALIAS SUMMONS ISSUED as to Brett Mize. NOTE: The attached document should not be used to effect service of process. Only copies that bear the seal of the court should be used for service of process. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 09/04/2013)
53 MOTION for Summary Judgment by Defendants Gary Brennan, Mark E Levenhagen, Howard Morton, Sally Nowatzke. (Attachments: # 1 Exhibit A − Declaration of Jack Hendrix with attachments)(Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 10/07/2013)
54 MEMORANDUM in Support of 53 MOTION for Summary Judgment filed by Gary Brennan, Mark E Levenhagen, Howard Morton, Sally Nowatzke. (Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 10/07/2013)
55 NOTICE by Gary Brennan, Mark E Levenhagen, Howard Morton, Sally Nowatzke of Summary Judgment Motion (Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 10/07/2013)
56 Summons Returned Unexecuted by Jay F Vermillion as to Brett Mize. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 10/28/2013)
57 ORDER. Response to motion for summary judgment to be filed by 1/13/2014. Signed by Judge Joseph S Van Bokkelen on 12/9/13. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 12/09/2013)
58 MOTION to Compel service of motion for summary judgment upon plaintiff; MOTION for Extension of Time to File Response to 53 MOTION for Summary Judgment by Plaintiff Jay F Vermillion. (Attachments: # 1 envelope)(smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 01/14/2014)
59 RESPONSE to Motion re 58 MOTION to Compel MOTION for Extension of Time to File Response/Reply as to 53 MOTION for Summary Judgment filed by Gary Brennan, Mark E Levenhagen, Howard Morton, Sally Nowatzke. (Attachments: # 1 Exhibit A − Signed Receipt for Records Received from DAG Renfro)(Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 01/15/2014)
60 ORDER granting 58 Motion to Compel; granting 58 Motion for Extension of Time to File Response/Reply Reply to be filed by 3/14/2014. Response to be filed by 2/28/2014. Clerk directed to send plaintiff copy of 53 , 54 , and 55 . Signed by Judge Joseph S Van Bokkelen on 1/15/14. (smp)(copies sent) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 01/16/2014)
61 RESPONSE to Motion re 53 MOTION for Summary Judgment filed by Jay F Vermillion. (Attachments: # 1 Declaration in opposition to motion for summary judgment, # 2 Exhibits, # 3 envelope)(smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 02/28/2014)
62 REPLY to Response to Motion re 53 MOTION for Summary Judgment (Supporting) filed by Gary Brennan, Mark E Levenhagen, Howard Morton, Sally Nowatzke. (Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 03/12/2014)
63 OPINION AND ORDER granting 53 Defendants' Motion for Summary Judgment. This action is DISMISSED WITHOUT PREJUDICE pursuant to 42 USC 1997e(a). Signed by Judge Joseph S Van Bokkelen on 3/19/14. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 03/20/2014)

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03/21/2014 04/04/2014 05/05/2014 05/05/2014
05/16/2014
05/16/2014 05/19/2014 06/04/2014 06/04/2014 06/04/2014
06/13/2014 06/16/2014 06/16/2014 06/16/2014
06/18/2014 06/18/2014 06/18/2014

64 CLERK'S ENTRY OF JUDGMENT. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 03/21/2014)
65 AMENDED JUDGMENT to 64 Clerks Judgment. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 04/04/2014)
66 MOTION to Reconsider, Alter and/or Amend Judgment re 63 Order on Motion for Summary Judgment by Plaintiff Jay F Vermillion. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/06/2014)
67 MEMORANDUM in Support of 66 MOTION for Reconsideration re 63 Order on Motion for Summary Judgment filed by Jay F Vermillion. (Attachments: # 1 envelope)(smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/06/2014)
68 RESPONSE to Motion re 66 MOTION for Reconsideration re 63 Order on Motion for Summary Judgment or to Alter and/or Amend Judgment (Opposing) filed by Gary Brennan, Mark E Levenhagen, Howard Morton, Sally Nowatzke. (Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/16/2014)
69 ORDER denying 66 Motion for Reconsideration. Signed by Judge Joseph S Van Bokkelen on 5/16/14. (smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/19/2014)
70 VERIFIED MOTION to Change Venue by Plaintiff Jay F Vermillion. (Attachments: # 1 envelope)(smp) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 05/21/2014)
71 NOTICE of Appearance by Betsy M Isenberg on behalf of Gary Brennan, Mark E Levenhagen, Howard Morton, Sally Nowatzke (Isenberg, Betsy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/04/2014)
72 MOTION to Withdraw as Attorney of T. Allon Renfro by Defendants Gary Brennan, Mark E Levenhagen, Howard Morton, Sally Nowatzke. (Renfro, Timothy) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/04/2014)
73 ORDER granting 72 Motion to Withdraw as Attorney. Attorney Timothy Allon Renfro, Jr terminated. Approved by Magistrate Judge Christopher A Nuechterlein on 6/4/14. (slm) Modified on 6/4/2014 (slm). [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/04/2014)
74 ORDER denying 70 Motion to Change Venue. Signed by Judge Joseph S Van Bokkelen on 6/13/2014. (kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/16/2014)
75 NOTICE OF APPEAL as to 69 Order on Motion for Reconsideration by Jay F Vermillion. Receipt of partial Filing fee $5, receipt number 3010700. (rmc) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/18/2014)
76 Docketing Statement re: 75 Notice of Appeal filed by Jay F Vermillion. (rmc) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/18/2014)
77 MOTION for Leave to Appeal in forma pauperis (Prisoner Trust Account Ledger attached) by Plaintiff Jay F Vermillion. (Attachments: # 1 Certificate of Prisoner Account)(rmc) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/18/2014)
78 Short Record Sent to US Court of Appeals re 75 Notice of Appeal. No appeal fees paid. (Attachments: # 1 Short Record)(rmc) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/18/2014)
80 USCA Case Number 14−2327 for 75 Notice of Appeal filed by Jay F Vermillion. (kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/23/2014)
81 PLRA FEE NOTICE AND ORDER of USCA as to 75 Notice of Appeal filed by Jay F Vermillion (kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/23/2014)

Case: 1:15-cv-605 As of: 06/08/2020 11:10 AM EDT 10 of 28

06/19/2014
07/09/2014 07/28/2014 07/31/2014 07/31/2014 09/04/2014 04/06/2015
04/15/2015 04/15/2015 04/15/2015
04/16/2015 04/21/2015
04/21/2015 04/22/2015

79 ORDER granting 77 Motion for Leave to Appeal in forma pauperis. The Court WAIVES the initial partial appellate filing fee and ORDERS the plaintiff, Jay F. Vermillion, IDOC #973683, to pay (and the facility having custody of him to automatically remit) to the Clerk of this Court 20% of the money he receives for each calendar month during which he receives $10 or more, until the $505 appellate filing fee is paid in full; and DIRECTS the Clerk to ensure that a copy of this order is mailed to each facility where Plaintiff is housed until the filing fee has been paid in full. Signed by Judge Joseph S Van Bokkelen on 6/19/2014. (rmc) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 06/19/2014)
82 MOTION to Withdraw Record, or Obtain Portions of It, for Preparation of Appellant's Brief and Appendix by Plaintiff Jay F Vermillion. (rmc) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/14/2014)
83 Letter from 7th Circuit Court of Appeals requesting record on appeal. (kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/29/2014)
84 Transmitted Record on Appeal to US Court of Appeals re 75 Notice of Appeal (via email) (kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 07/31/2014)
85 NOTICE of Docketing Record on Appeal from USCA re 75 Notice of Appeal filed by Jay F Vermillion. (kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 08/04/2014)
86 ORDER denying 82 Motion to Withdraw Record. Signed by Judge Joseph S Van Bokkelen on 9/4/2014. (rmc) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 09/04/2014)
87 MANDATE of USCA as to 75 Notice of Appeal filed by Jay F Vermillion. The judgment of the District Court is VACATED insofar as it dismisses any claim against defendants and as to those defendants, the case is remanded. No record to be returned. (Attachments: # 1 certified final jgm, # 2 certified order, # 3 certified nonprecendential disposition)(kds) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 04/07/2015)
88 Consent to Receipt of Documents Through Prisoner Electronic Filing Program by Jay F Vermillion (jld) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 04/15/2015)
89 PLAINTIFF'S RENEWED VERIFIED MOTION to Change Venue by Jay F Vermillion. (jld) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 04/15/2015)
90 ORDER: Pursuant to the 4/6/15 mandate of the US Court of Appeals and 70 & 89 MOTIONS to Change Venue filed by Jay F Vermillion, this case is transferred to the Southern District of Indiana pursuant to 28 U.S.C. § 1404(a).. Signed by Judge Joseph S Van Bokkelen on 4/15/15. (jld) [Transferred from Indiana Northern on 4/16/2015.] (Entered: 04/15/2015)
91 Case transferred in from District of Indiana Northern; Case Number 3:11−cv−00280. Original file copy of transfer order and docket sheet received. (Entered: 04/16/2015)
93 CONSENT to Prisoner E−Service by JAY F. VERMILLION. Pursuant to General Order 2013−1, documents submitted by JAY F. VERMILLION to the court for filing will generate a Notice of Electronic Filing that will constitute official service upon registered users of CM/ECF. If any parties to the case are not registered CM/ECF users, the Clerk of the Court will mail the document via U.S. Postal Service on behalf of the inmate. NOTE: The E−Filing Program does not affect the obligation of other parties to serve copies of documents in accordance with the Federal Rules of Civil Procedure. (NRN) (Entered: 04/22/2015)
94 Position Statement by JAY F. VERMILLION. (NRN) (Entered: 04/22/2015)
92 ENTRY Discussing Mandate and Directing Further Proceedings − The plaintiff shall have through 5/15/15, in which to file a third amended complaint setting forth all claims, federal and state, against defendants Levenhagen, Morton, Brennan, Mize, Nowatzke, Plank, Buss, Whelan, and Carrasco. (cm). Signed by Judge Richard L. Young on 4/22/2015.(TMD) (Entered: 04/22/2015)

Case: 1:15-cv-605 As of: 06/08/2020 11:10 AM EDT 11 of 28

05/01/2015 05/08/2015
05/22/2015
05/22/2015 05/22/2015 06/08/2015 06/11/2015 06/17/2015 06/17/2015 06/17/2015 06/22/2015 07/08/2015 07/13/2015
07/20/2015
07/22/2015 07/23/2015 08/06/2015 08/06/2015

95 MOTION to Clarify the Title of This Case, filed by Plaintiff JAY F. VERMILLION. (NRN) (Entered: 05/01/2015)
96 THIRD AMENDED COMPLAINT against GARY BRENNAN, DAWN BUSS, Ralph Carrasco, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, Charles Whelan, IDOC Tort Claims Defendants, filed by JAY F. VERMILLION.(TMB) Modified on 5/8/2015 (TMB). (Entered: 05/08/2015)
97 DISMISSAL − of certain claims (SEE ENTRY). Clerk designated to issue and serve process on defendants Plank, Buss, Whelan and Carrasco. Counsel for defendants who have appeared in this action shall have through 6/17/15 to answer/respond to third amended complaint. (cm). Signed by Judge Richard L. Young on 5/22/2015.(TMD) (Entered: 05/22/2015)
ORDER granting in part and denying in part 95 Motion to Clarify the Title of This Case. Plank will be added as defendant. Signed by Judge Richard L. Young on 5/22/2015. (TMD) (Entered: 05/22/2015)
98 NOTICE of Lawsuit & Waiver Issued by Clerk to defendants Plank, Buss, Whelan and Carrasco. (TMD) (Entered: 05/22/2015)
99 MOTION to Reconsider, Alter, and/or Amend Judgment re 97 Dismissal, filed by Plaintiff JAY F. VERMILLION. (TMB) (Entered: 06/08/2015)
100 Mail Returned as undeliverable. 98 NOTICE of Lawsuit & Waiver Issued by Clerk, 97 Dismissal, 96 Amended Complaint sent to RALPH CARRASCO. (TMB) (Entered: 06/11/2015)
101 NOTICE of Appearance by Benjamin Myron Lane Jones on behalf of Defendants GARY BRENNAN, MARK E. LEVENHAGEN, HOWARD MORTON, SALLY NOWATZKE, CHARLES WHELAN. (Jones, Benjamin) (Entered: 06/17/2015)
102 ANSWER to 96 Amended Complaint , filed by GARY BRENNAN, MARK E. LEVENHAGEN, HOWARD MORTON, SALLY NOWATZKE, CHARLES WHELAN.(Jones, Benjamin) Modified on 6/18/2015 (NRN). (Entered: 06/17/2015)
103 NOTICE of Appearance by Betsy M. Isenberg on behalf of Defendant CHARLES WHELAN. (Isenberg, Betsy) (Entered: 06/17/2015)
104 MOTION to Compel Service of Process on Defendant Ralph Carrasco, filed by Plaintiff JAY F. VERMILLION. (NRN) (Entered: 06/22/2015)
105 ORDER denying plaintiff's 99 Motion for Reconsideration. Signed by Judge Richard L. Young on 7/8/2015. (TMD) (Entered: 07/08/2015)
106 ORDER granting plaintiff's 104 Motion to Compel service of process. Counsel for the defendants are directed to ascertain and file (under seal, if appropriate) the last known address for Defendants Brett Mize and Ralph Carrasco. This shall be done as soon as possible, but not later than August 10, 2015. Signed by Judge Richard L. Young on 7/13/2015. (TMD) (Entered: 07/13/2015)
107 SEALED DOCUMENT SUMBITTED AS DIRECTED BY THE COURT, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, HOWARD MORTON, SALLY NOWATZKE, CHARLES WHELAN. (Jones, Benjamin) (Entered: 07/20/2015)
108 SECOND MOTION for Reconsideration re 97 Dismissal, filed by Plaintiff JAY F. VERMILLION. (TMB) (Entered: 07/22/2015)
109 MOTION for Protective Order, filed by Defendants RALPH CARRASCO, BRETT MIZE. (Attachments: # 1 Proposed Order)(Jones, Benjamin) (Entered: 07/23/2015)
110 ORDER denying Second 108 Motion for Reconsideration. Signed by Judge Richard L. Young on 8/6/2015. (TMD) (Entered: 08/06/2015)
111 ORDER granting defendants 109 Motion for Protective Order. Signed by Judge Richard L. Young on 8/6/2015. (TMD) (Entered: 08/06/2015)

Case: 1:15-cv-605 As of: 06/08/2020 11:10 AM EDT 12 of 28

08/10/2015
08/10/2015 08/19/2015
08/21/2015 08/24/2015 08/25/2015
08/28/2015 08/28/2015 09/14/2015 09/28/2015 09/28/2015 10/19/2015 10/19/2015 10/19/2015 10/20/2015 10/21/2015
10/26/2015 10/26/2015 10/26/2015

113 ENTRY directing Clerk to issue and serve process on defendants Mize and Carrasco. Counsel for defendants are directed to ascertain and file last known address for Defendants Plank and Buss no later than 8/31/15. (cm). Signed by Judge Richard L. Young on 8/10/2015.(TMD) (Entered: 08/10/2015)
114 NOTICE of Lawsuit & Waiver Issued by Clerk as to defendants Mize and Carrasco. (TMD) (Entered: 08/10/2015)
115 Second MOTION for Protective Order , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, HOWARD MORTON, SALLY NOWATZKE, CHARLES WHELAN. (Attachments: # 1 Proposed Order)(Jones, Benjamin) (Entered: 08/19/2015)
116 Mail Returned as undeliverable. 114 NOTICE of Lawsuit & Waiver Issued by Clerk sent to BRETT MIZE. (TMB) Sealed entry due to Protective Order at docket #111. Modified on 8/31/2015 (TMB). (Entered: 08/21/2015)
117 WAIVER OF SERVICE Returned Executed, filed by RALPH CARRASCO. RALPH CARRASCO waiver sent on 8/10/2015. (Attachments: # 1 Envelope)(NRN) (Entered: 08/25/2015)
118 ORDER granting Defendants' 115 Motion for Protective Order. The Defendants shall have leave to file the last known addresses of Defendants Willard Blank and Dawn Buss ex parte. Signed by Judge Richard L. Young on 8/25/2015. (TMD) Modified on 8/26/2015 (NRN). (Entered: 08/25/2015)
120 ENTRY Directing Additional Service of Process on defendants Plank and Buss. (cm). Signed by Judge Richard L. Young on 8/28/2015.(TMD) (Entered: 08/28/2015)
121 NOTICE of Lawsuit & Waiver Issued by Clerk to Willard Plank and Dawn Buss. (TMD) (Entered: 08/28/2015)
122 WAIVER OF SERVICE Returned Executed, filed by WILLARD PLANK. WILLARD PLANK waiver sent on 8/28/2015. (Attachments: # 1 Envelope)(NRN) (Entered: 09/15/2015)
123 WAIVER OF SERVICE Returned Executed, filed by DAWN BUSS. DAWN BUSS waiver sent on 8/28/2015. (NRN) (Entered: 09/29/2015)
124 WAIVER OF SERVICE Returned Executed, filed by WILLARD PLANK. (NRN) (Entered: 09/29/2015)
125 NOTICE of Appearance by Benjamin Myron Lane Jones on behalf of Defendants DAWN BUSS, RALPH CARRASCO. (Jones, Benjamin) (Entered: 10/19/2015)
126 ANSWER to 96 Amended Complaint , filed by DAWN BUSS, RALPH CARRASCO.(Jones, Benjamin) (Entered: 10/19/2015)
127 NOTICE of Appearance by Betsy M. Isenberg on behalf of Defendants DAWN BUSS, RALPH CARRASCO. (Isenberg, Betsy) (Entered: 10/19/2015)
128 MOTION to Compel Service of Process on Defendant Brett Mize, filed by Plaintiff JAY F. VERMILLION. (TMB) (Entered: 10/20/2015)
129 ORDER granting 128 Motion to Compel. Counsel for Mize shall have through November 15, 2015, in which to notify the Court whether Mize will waive service of process in this case. If Mize will not waive service then the Marshal Service will be directed to track down Mize consistent with the Seventh Circuit's directions in Williams v. Werlinger, 795 F.3d 759 (7th Cir. 2015).. Signed by Judge Richard L. Young on 10/21/2015. (TMD) (Entered: 10/21/2015)
130 NOTICE of Appearance by Benjamin Myron Lane Jones on behalf of Defendant WILLARD PLANK. (Jones, Benjamin) (Entered: 10/26/2015)
131 ANSWER to 96 Amended Complaint , filed by WILLARD PLANK.(Jones, Benjamin) (Entered: 10/26/2015)
132 NOTICE re 109 MOTION for Protective Order, filed by Defendants RALPH CARRASCO, BRETT MIZE, filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, HOWARD MORTON, SALLY

Case: 1:15-cv-605 As of: 06/08/2020 11:10 AM EDT 13 of 28

10/26/2015 10/26/2015 11/24/2015 12/01/2015
12/01/2015 12/01/2015 01/29/2016 02/02/2016 04/06/2016 05/26/2016 05/27/2016
05/27/2016 05/27/2016 06/01/2016 08/08/2016 09/28/2016

NOWATZKE, WILLARD PLANK, CHARLES WHELAN (Jones, Benjamin) Modified on 10/27/2015 (NRN). (Entered: 10/26/2015)
133 NOTICE of Appearance by Betsy M. Isenberg on behalf of Defendant WILLARD PLANK. (Isenberg, Betsy) (Entered: 10/26/2015)
134 MOTION to Strike 131 Answer to Amended Complaint, filed by Plaintiff JAY F. VERMILLION. (TMB) (Entered: 10/27/2015)
135 Correspondence REQUESTING COPY of Case Docket Sheet, filed by Jay F. Vermillion. (copy sent to plaintiff via US Mail) (TMB) (Entered: 11/24/2015)
136 ENTRY Directing Further Proceedings − Clerk designated to issue process to be served via U.S. Marshal at the expense of the United States. The Marshal is notified that the Court and the pro se prisoner plaintiff do not know where Brett Mize can be served. Accordingly, the Marshal or his Deputy is required to use the Marshal services' available resources to track down and serve Brett Mize. The clerk is directed to release the information contained in the ex parte filing at docket 112 to the Marshal.. Signed by Judge Richard L. Young on 12/1/2015.(TMD) (Entered: 12/01/2015)
137 Summons Issued as to BRETT MIZE. (Attachments: # 1 USM 285 Form)(TMD) (Entered: 12/01/2015)
138 Documents for service by USM −, re 136 Entry, 137 Summons Issued, 96 Amended Complaint. Electronic Notice to USM.(TMD) (Entered: 12/01/2015)
139 RETURN of USM Service as to BRETT MIZE Unexecuted − Mize no longer employed by INDOC for at least 3 years per Robert Bugher, Chief Counsel. (NRN) Modified on 2/1/2016 (NRN). (Entered: 01/29/2016)
140 Third MOTION to Compel Service of Process on Defendant Brett Mize, filed by Plaintiff JAY F. VERMILLION. (NRN) (Entered: 02/02/2016)
141 MOTION to Compel Service of Process on Defendant Brett Mize, filed by Plaintiff JAY F. VERMILLION. (NRN) (Entered: 04/06/2016)
142 MOTION Requesting Docket Sheet and Account Statement, filed by Plaintiff JAY F. VERMILLION. (TMB) (Entered: 05/26/2016)
143 ENTRY Concerning Selected Matters − The motion to strike 134 is denied. Theplaintiff's motions to compel service of process on defendant Brett A. Mize 140 and 141 are granted consistent with the following. The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue process to thedefendant Brett Mize. Process shall consist of an alias summons. The Marshal for this District or his Deputy shall serve the alias summons, together with a copy of the third amended complaint, filed on May 8, 2015, 96 , and a copy of this Entry, on the defendant at the expense of the United States. The plaintiff's request for a copy of the docket sheet 142 is granted. The clerk is directed to include a copy of the docket sheet along with the plaintiff's copy of this Entry. The docket sheet reflects the payments that have been received by the court. Signed by Judge Richard L. Young on 5/27/2016. (copies via US Mail/USM Service) (NRN) (Entered: 05/27/2016)
144 Summons Issued as to BRETT MIZE. (Attachments: # 1 USM 285 Form)(NRN) (Entered: 05/27/2016)
145 Documents for service by USM re 144 Summons Issued, 143 Order on Motion to StrikeOrder on Motion to Compel, 96 Amended Complaint. Paper copies to USM.(NRN) (Entered: 05/27/2016)
146 ENTRY Setting Pretrial Schedule − This action shall now proceed in accordance with the following schedule as to all parties expect defendant Mize (See Entry). Signed by Judge Richard L. Young on 6/1/2016.(NRN) Modified on 6/1/2016 to show copy sent via US Mail (NRN). (Entered: 06/01/2016)
147 Fifth MOTION to Compel Service of Process on Defendant Brett Mize, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 08/08/2016)
148 ENTRY DIRECTING MARSHALS SERVICE TO SERVE BRETT MIZE OR FILE A REPORT − Plaintiff's motion to compel service on Defendant Brett Mize 147 is

Case: 1:15-cv-605 As of: 06/08/2020 11:10 AM EDT 14 of 28

09/28/2016 09/28/2016 10/14/2016 10/20/2016
11/02/2016 11/08/2016 11/15/2016
11/15/2016
11/16/2016
11/17/2016 11/18/2016 11/18/2016 11/28/2016
11/29/2016 11/30/2016 12/27/2016

GRANTED to the extent that Chief Deputy Buzz Brown, or his designee, is DIRECTED toeffect service of process on defendant Brett Mize. If it is unable to do so, he (or is designee) it is DIRECTED to file a report documenting the efforts undertaken in this regard. These steps shall be taken by October 18, 2016. Signed by Judge Richard L. Young on 9/28/2016. (JRB) (Entered: 09/28/2016)
149 Summons Issued as to BRETT MIZE. (Attachments: # 1 USM 285 Form)(JRB) (Entered: 09/28/2016)
150 Documents for service by USM −, re 149 Summons Issued, 148 Order on Motion, 96 Amended Complaint. Paper copies to USM.(JRB) (Main Document 150 replaced on 9/28/2016) (JRB). (Entered: 09/28/2016)
151 MOTION to Appoint Counsel, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Exhibit)(RSF) (Entered: 10/14/2016)
152 ORDER denying 151 Motion to Appoint Counsel. The Clerk is directed to include a form motion for assistance recruiting counsel along with the plaintiff's copy of this Entry. Copies sent to Plaintiff via US Mail. Signed by Judge Richard L. Young on 10/20/2016. (JRB) (Entered: 10/20/2016)
153 MOTION for Rule to Show Cause, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 11/02/2016)
154 RETURN of USM Service BRETT MIZE served on 11/9/2016. (JRB) (Entered: 11/10/2016)
155 MOTION For Leave to Depose Inmate, filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 11/15/2016)
156 ORDER granting 155 Motion Leave to Depose Inmate. Defendants are granted leave to depose Jay F. Vermillion, a prisoner at the Pendleton Correctional Facility, on or after November 30, 2016 at a time to be arranged with the facility. Signed by Judge Richard L. Young on 11/15/2016. (JRB) (Entered: 11/15/2016)
157 ORDER denying 153 Motion to Compel − The Court will resend the form motion for assistance recruiting counsel along with this Entry. If the plaintiff believes that the defendants' discovery requests have been inadequate he should attempt to resolve the issue with defendants' counsel. If no resolution can be reached he should file a motion to compel. SEE ORDER. Signed by Judge Richard L. Young on 11/16/2016. (Attachments: # 1 Motion for Recruitment of Counsel) (JRB) (Entered: 11/16/2016)
158 MOTION for Assistance with Recruiting Counsel, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 11/17/2016)
159 RETURN of USM Service BRETT MIZE served on 11/2/2016. (JRB) (Entered: 11/18/2016)
160 MOTION for Extension of Time of Discovery Deadline to 3/1/2017, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 11/18/2016)
161 NOTICE of No Objection, filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN (Jones, Benjamin) (Entered: 11/28/2016)
163 ORDER granting 160 Motion for Extension of Time to 3/1/2017 to Complete Discovery. SEE ORDER. Signed by Judge Richard L. Young on 11/30/2016. (JRB) (Entered: 11/30/2016)
162 ORDER denying 158 Motion for Assistance with Recruiting Counsel. SEE ORDER. Signed by Judge Richard L. Young on 11/29/2016. (JRB) (Entered: 11/30/2016)
164 MOTION for Clerk's Entry of Default, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 12/27/2016)

Case: 1:15-cv-605 As of: 06/08/2020 11:10 AM EDT 15 of 28

12/28/2016
12/29/2016 01/06/2017 01/06/2017 01/06/2017 01/06/2017 01/10/2017
02/08/2017
04/06/2017
04/06/2017 04/17/2017
04/19/2017
04/21/2017 04/24/2017

165 MOTION for Extension of Time to March 31, 2017 in which to 146 Scheduling OrderSet Scheduling Order Deadlines for Summary Judgment Deadline, filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) Modified on 12/28/2016 (JRB). (Entered: 12/28/2016)
166 ORDER granting 165 Motion for Extension of Time to File Any Motions Under Federal Rule of Civil Procedure 56 and Local Rule 56−1 to 3/31/2017. Signed by Judge Richard L. Young on 12/29/2016. (JRB) (Entered: 12/29/2016)
167 Letter from Brett Mize. (Attachments: # 1 Envelope) (JRB) Modified on 1/6/2017 (MAC). (Envelope restricted for address information). (Entered: 01/06/2017)
168 NOTICE of Appearance by Benjamin Myron Lane Jones on behalf of Defendant BRETT MIZE. (Jones, Benjamin) (Entered: 01/06/2017)
169 ANSWER to 96 Amended Complaint , filed by BRETT MIZE.(Jones, Benjamin) (Entered: 01/06/2017)
170 NOTICE of Appearance by Betsy M. Isenberg on behalf of Defendant BRETT MIZE. (Isenberg, Betsy) (Entered: 01/06/2017)
171 ENTRY − The motion for Clerk's Entry of Default 164 is denied. The defendant Brett Mize has appeared by counsel and has filed an answer to the complaint.Given the recent appearance of defendant Brett Mize. The parties now have through March 16, 2017, to complete discovery and through April 19, 2017, to file any dispositive motion. Signed by Judge Richard L. Young on 1/10/2017. (JRB) (Entered: 01/10/2017)
172 NOTICE of Substitution of Appearance by Kyle Charles Fletcher replacing Betsy M. Isenberg on behalf of GARY BRENNAN(Director of Op WCU), DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON(Admin Asst ISP), SALLY NOWATZKE(Case Counselor WCU), WILLARD PLANK, CHARLES WHELAN (Attachments: # 1 Text of Proposed Order) (Fletcher, Kyle) (Entered: 02/08/2017)
173 ORDER REASSIGNING CASE − Pursuant to 28 U.S.C. Section 137 and Local Rule 40−1(f), this matter has been reassigned to Magistrate Judge Tim A. Baker. Judge Denise K. LaRue is no longer assigned to the case. Please included the new case number,1:15−cv−605−RLY−TAB, on all future filings in this matter. Signed by Judge Jane Magnus−Stinson on 4/6/2017. (MAT) (Entered: 04/06/2017)
174 MOTION to Extend Pretrial Scheduling Deadlines, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 04/06/2017)
175 RESPONSE to Motion re 174 MOTION for Extension of Time to Extend Pretrial Scheduling Deadlines, filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Jones, Benjamin) (Entered: 04/17/2017)
176 MOTION for Extension of Time to 04/26/2017 , filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 04/19/2017)
177 Plaintiff's Motion to Suppress Deposition, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 04/21/2017)
178 Entry Directing Further Proceedings − The parties' motions to extend deadlines, 174 and 176 , are granted to the extent that the discovery deadline is extended through June 20, 2017, and the dispositive motion deadline is extended through July 25, 2017. This scheduling order does not automatically extend the plaintiff's time to file his response to that motion. Signed by Judge Richard L. Young on 4/24/2017.(JRB) (Entered: 04/24/2017)

Case: 1:15-cv-605 As of: 06/08/2020 11:10 AM EDT 16 of 28

05/01/2017 06/05/2017
06/15/2017 06/23/2017 07/25/2017 07/25/2017 08/24/2017
08/25/2017 09/01/2017 09/25/2017 10/19/2017 10/26/2017
10/31/2017 11/28/2017 12/07/2017 12/07/2017

179 RESPONSE in Opposition re 177 MOTION to Suppress Deposition, filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Jones, Benjamin) (Entered: 05/01/2017)
180 NOTICE of Substitution of Appearance by Christopher Andrew Farrington replacing Kyle C. Fletcher on behalf of GARY BRENNAN(Director of Op WCU), DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON(Admin Asst ISP), SALLY NOWATZKE(Case Counselor WCU), WILLARD PLANK, CHARLES WHELAN (Farrington, Christopher) (Entered: 06/05/2017)
181 Motion to authenticate Subpoena as to Mr. Benjamin M.L. Jones, Deputy, filed by Plaintiff JAY F. VERMILLION. (JRB) Modified on 7/25/2017 (TMD). (Entered: 06/15/2017)
182 MOTION to Extend Pretrial Scheduling Deadlines, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 06/23/2017)
183 ORDER denying Plaintiff's 177 Motion to Suppress Deposition. Signed by Judge Richard L. Young on 7/25/2017. (TMD) (Entered: 07/25/2017)
184 ORDER denying Plaintiff's 181 Motion to Authenticate Subpoena and granting plaintiff's 182 Motion for Extension of Time − SEE ENTRY. Signed by Judge Richard L. Young on 7/25/2017. (TMD) (Entered: 07/25/2017)
185 MOTION for Extension of Time to 09/01/2017 in which to Reply to 184 Court's Order filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) Modified on 8/24/2017 (JRB). (Entered: 08/24/2017)
186 ORDER granting 185 Motion for Extension of Time to File to 9/1/17 for Plaintiff to Listen to Audio Recording. Signed by Judge Richard L. Young on 8/25/2017. (JRB) (Entered: 08/25/2017)
187 NOTICE , filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN (Jones, Benjamin) (Entered: 09/01/2017)
188 MOTION to Extend Pretrial Scheduling Deadlines, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 09/25/2017)
189 ORDER granting 188 Motion to Extend Pretrial Scheduling Deadlines −Dispositive Motions due by 1/26/2018., Discovery due by 12/20/2017. SEE ORDER. Signed by Judge Richard L. Young on 10/19/2017.(JRB) (Entered: 10/19/2017)
190 SCHEDULING ORDER − Final Pretrial Conference set for 7/12/2018 at 09:30 AM in room #349, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Richard L. Young. Jury Trial set for 7/23/2018 at 09:00 AM in room #349, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Richard L. Young. The court has allotted four days for this trial. Signed by Judge Richard L. Young on 10/26/2017.(JRB) (Entered: 10/26/2017)
191 MOTION to Appoint Counsel, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 10/31/2017)
192 ORDER denying 191 Motion to Appoint Counsel − Given the expansive record in this case, the parties are directed to report by no later than December 21, 2017, whether they have made a jury demand in this case. SEE ORDER. Signed by Judge Richard L. Young on 11/28/2017. (JRB) (Entered: 11/28/2017)
193 Plaintiff's Objection in Response to the Court's 192 Order Denying Motion to Appoint Counsel, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 12/07/2017)
194 Witness List, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 12/07/2017)

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12/21/2017 01/26/2018 01/26/2018 01/26/2018 01/26/2018
01/29/2018 02/22/2018 03/08/2018 03/12/2018
03/29/2018 03/29/2018 04/02/2018
04/11/2018

195 NOTICE Regarding Jury Demand, filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN (Jones, Benjamin) (Entered: 12/21/2017)
196 MOTION for Summary Judgment , filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Attachments: # 1 Exhibit A − Deposition of Jay Vermillion, # 2 Exhibit B − Affidavit of Charles Whelan)(Jones, Benjamin) (Entered: 01/26/2018)
197 BRIEF/MEMORANDUM in Support re 196 MOTION for Summary Judgment , filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Jones, Benjamin) (Entered: 01/26/2018)
198 NOTICE of Filing Manually Attachement to ECF−196−2 by GARY BRENNAN(Director of Op WCU), DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON(Admin Asst ISP), SALLY NOWATZKE(Case Counselor WCU), WILLARD PLANK, CHARLES WHELAN (Jones, Benjamin) (Entered: 01/26/2018)
199 NOTICE Regarding Right to Respond to and Submit Evidence in Oppositon to Motion for Summary Judgment, filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN (Attachments: # 1 Exhibit A − Fed. R. Civ. P. 56, # 2 Exhibit B − Local Rule 56−1) (Jones, Benjamin) (Entered: 01/26/2018)
200 Receipt of Manual Filing (One CD) re 198 NOTICE of Filing Manually. (Attachments: # 1 Copy of Notice of Manual Filing) (APD) (Entered: 01/29/2018)
201 MOTION for Extension of Time to File Response to 196 MOTION for Summary Judgment , filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 02/22/2018)
202 RESPONSE in Opposition re 201 MOTION for Extension of Time to File Response re 196 MOTION for Summary Judgment , filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Jones, Benjamin) (Entered: 03/08/2018)
203 Entry Directing the Further Development of this Action − The plaintiff's motion for time to respond to the motion for summary judgment, 201 , is granted in part. In order to meet the trial date, the plaintiff's response to the motion for summary judgment is due no later than April 4, 2018. The plaintiff's objection to testimony from Charles Whelan as untimely is overruled. The clerk is directed to include a copy of docket number 194, along with the plaintiff'scopy of this Entry. The plaintiff is directed to submit a copy of his inmate trust account for the past six monthsby April 12, 2018. SEE ORDER. Signed by Judge Richard L. Young on 3/12/2018. (Attachments: # 1 Copy to Plaintiff) (JRB) (Entered: 03/12/2018)
204 MOTION for Extension of Time in which to Respond to 196 MOTION for Summary Judgment , filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 03/29/2018)
205 ORDER granting 204 Motion for Extension of Time to File a Response to 196 Motion for Summary Judgment to 4/13/18. Signed by Judge Richard L. Young on 3/29/2018. (JRB) (Entered: 03/29/2018)
206 NOTICE of Substitution of Appearance by David C. Dickmeyer replacing Christopher Andrew (Drew) Farrington on behalf of GARY BRENNAN(Director of Op WCU), DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON(Admin Asst ISP), SALLY NOWATZKE(Case Counselor WCU), WILLARD PLANK, CHARLES WHELAN (Attachments: # 1 Text of Proposed Order) (Dickmeyer, David) (Entered: 04/02/2018)
207 Designation of Evidence, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 04/11/2018)

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04/11/2018 04/11/2018 04/25/2018
04/27/2018 05/01/2018 05/04/2018 05/22/2018
05/24/2018 05/24/2018
05/25/2018 05/30/2018 05/30/2018 05/30/2018 06/08/2018

208 RESPONSE in Opposition to 196 MOTION for Summary Judgment , filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Exhibit)(JRB) (Entered: 04/11/2018)
209 BRIEF in Opposition in 196 MOTION for Summary Judgment , filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 04/11/2018)
210 MOTION for Extension of Time to File Reply to April 27, 2018 re 196 MOTION for Summary Judgment , filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 04/25/2018)
211 REPLY in Support of Motion re 196 MOTION for Summary Judgment , filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Jones, Benjamin) (Entered: 04/27/2018)
212 ORDER granting 210 Motion for Extension of Time to File Reply to 196 MOTION for Summary Judgment to 4/27/18. Signed by Judge Richard L. Young on 5/1/2018. (JRB) (Entered: 05/01/2018)
213 Surreply to Defendant's Reply of Support of 196 MOTION for Summary Judgment , filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 05/04/2018)
214 ORDER granting in part and denying in part 196 Motion for Summary Judgment − Defendants Howard Morton, Willard Plank, Dawn Buss, Charles Whelan, and RalphCarrasco are entitled to judgment as a matter of law as to all claims alleged against them. The clerk is directed to terminate these five defendants on the docket. All defendants are entitled to summary judgment on the retaliation claim. Summary Judgment is denied as to the claim that Mark Levenhagen, Sally Nowatzke, Brett Mize and Gary Brennan violated Vermillion's Eighth Amendment rights through his placement in the Westville Control Unit for 1,513 days.Summary Judgment is denied as to the claim that Mark Levenhagen and Brett Mizetransferred Vermillion from the ISP to department−wide administrative segregation at the Westville Control Unit in violation of Vermillion's due process rights. No partial final judgment shall issue at this time as to the claims resolved in this Entry. SEE ORDER. Signed by Judge Richard L. Young on 5/22/2018. (Attachments: # 1 Attachment to Entry) (JRB) (Entered: 05/22/2018)
215 MOTION Requesting Settlement Conference, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Dickmeyer, David) (Entered: 05/24/2018)
216 ORDER OF RECRUITMENT OF COUNSEL PURSUANT TO LOCAL RULE 87 FOR THE LIMITED PURPOSE OF ASSISTING WITH A SETTLEMENT CONFERENCE − The Court hereby appoints Alice Morical and Chris Wagner to represent Plaintiff Jay F. Vermillion solely for the limited purpose of assisting him in connection with a settlement conference. Signed by Judge Richard L. Young on 5/24/2018.(JRB) (Entered: 05/24/2018)
217 Submission of Proposed Order , re 215 MOTION Requesting Settlement Conference, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Dickmeyer, David) (Entered: 05/25/2018)
218 RESPONSE to 215 MOTION Requesting Settlement Conference, filed by Plaintiff JAY F. VERMILLION. (JRB) (Entered: 05/30/2018)
219 ORDER granting Defendants' 215 Motion requesting a settlement conference. The settlement conference will be scheduled by separate order. Signed by Magistrate Judge Tim A. Baker on 5/30/2018. (SWM) (Entered: 05/30/2018)
220 ORDER Referring Cause to Magistrate Judge Dinsmore for Settlement Conference ONLY. See Order. Signed by Magistrate Judge Tim A. Baker on 5/30/2018.(SWM) (Entered: 05/30/2018)
221 SCHEDULING ORDER: Settlement Conference set for 7/19/2018 01:00 PM (Eastern Time) in Telephonic before Magistrate Judge Mark J. Dinsmore. The parties shall attend the settlement conference by calling the designated telephone number, to be

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provided by the Court via email. On or before five (5) business days before the settlement conference, the parties shall submit (not file) a confidential settlement statement. See Order for additional information Signed by Magistrate Judge Mark J. Dinsmore on 6/8/2018..(SWM) (Entered: 06/11/2018)
222 ORDER to Make Inmate Available − via Telephone. Warden of Pendleton Correctional Facility ordered to make Jay F. Vermillion Available − via Telephone for court proceeding on 7/19/2018 at 1:00 PM (Eastern). Copy to Lydia Enos via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 6/8/2018.(SWM) (Entered: 06/11/2018)
223 ENTRY − This action has been set for a settlement conference with Magistrate Judge Dinsmore on July 19, 2018. Accordingly, the Final Pretrial Conference set for July 12, 2018, and the Jury Trial set for July 23, 2018, are vacated. 190 . These trial settings will be reset if necessary following the conclusion of the settlement conference. Signed by Judge Richard L. Young on 6/18/2018.(JRB) (Entered: 06/18/2018)
224 Unopposed MOTION for Plaintiff and Counsel to Participate in Person at Settlement Conference, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order)(Morical, Alice) (Entered: 06/26/2018)
225 ORDER granting Plaintiff's 224 Motion to Make Plaintiff Available in Person for Settlement Conference. The Court hereby CONVERTS the settlement conference scheduled for July 19, 2018 at 1:00 p.m. (Eastern), from telephonic to in person, in Courtroom 243, United States Courthouse, 46 E. Ohio Street, Indianapolis Indiana. All parties are ordered to appear in person. The Court will order Plaintiff Jay F. Vermillion to be produced in person by separate order. All other requirements of the Court's order scheduling the settlement conference [Dkt. 222 ] remain in effect. Signed by Magistrate Judge Mark J. Dinsmore on 6/27/2018.(SWM) (Entered: 06/28/2018)
226 ORDER to PRODUCE INMATE. Warden of Pendleton Correctional Facility ordered to produce Jay F. Vermillion for court proceeding on 7/19/2018. Copy to Lydia Enos via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 6/27/201. Paper copies to USM.(SWM) (Entered: 06/28/2018)
227 MOTION To Excuse Individual Defendant's From Settlement Conference, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion to Excuse Individual Defendant from Settlement Conference)(Dickmeyer, David) (Entered: 07/06/2018)
228 ORDER granting in part and denying in part 227 Motion to excuse individual defendants from settlement conference (See Order for details). Signed by Magistrate Judge Mark J. Dinsmore on 7/10/2018. (CBU) (Entered: 07/10/2018)
229 MOTION for Leave to Attend Settlement Conference, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 07/13/2018)
230 ORDER granting Defendants' 229 Motion for Leave to Attend Settlement Conference. Defendants are permitted to have a law clerk attend the July 19, 2018 settlement conference. Signed by Magistrate Judge Mark J. Dinsmore on 7/16/2018. (SWM) (Entered: 07/17/2018)
231 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Settlement Conference held on 7/19/2018. Settlement was not achieved. The conference concluded without further order. Signed by Magistrate Judge Mark J. Dinsmore. (BRR) (Entered: 07/20/2018)
232 MOTION to Withdraw Attorney Appearance (Limited Representation), filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order)(Morical, Alice) (Entered: 07/30/2018)
233 ORDER granting 232 Motion to Withdraw Attorney Appearance. Attorney Alice McKenzie Morical and Christopher D. Wagner withdrawn. SEE ORDER. Signed by Judge Richard L. Young on 8/7/2018. (JRB) (Entered: 08/07/2018)

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08/28/2018 08/29/2018
09/04/2018 09/04/2018 09/06/2018 09/06/2018 09/06/2018 09/24/2018 10/22/2018
11/05/2018 11/05/2018 11/05/2018

234 Order of Recruitment of Counsel: ALICE M. MORICAL and CHRISTOPHER D. WAGNER added. Signed by Judge Richard L. Young on 8/28/2018.(JRB) (Entered: 08/28/2018)
235 SCHEDULING ORDER: The court SETS this matter for a final pretrial conference on JUNE 10, 2019 at 2:00 p.m. Counsel are ordered to appear before the Honorable Richard L. Young, in room 349 of the Birch Bayh Federal Building and United States Courthouse, Indianapolis, Indiana 46204. This matter is also set for trial by jury on JUNE 24, 2019 at 9:00 a.m. in room 349. The court has allotted five (5) days for this trial. A status conference will be held SEPTEMBER 20, 2018 at 8:30 a.m. Counsel for parties are ordered to appear before the Honorable Richard L. Young, in room 349 of the Birch Bayh Federal Building and United States Courthouse, Indianapolis, Indiana. Signed by Judge Richard L. Young on 8/29/2018.(JRB) (Entered: 08/29/2018)
236 MOTION for Attorney(s) Maggie E. Filler to Appear pro hac vice (No fee paid with this filing), filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Affidavit Certification of Maggie E. Filler, # 2 Text of Proposed Order)(Morical, Alice) (Entered: 09/04/2018)
237 MOTION for Attorney(s) Locke E. Bowman to Appear pro hac vice (No fee paid with this filing), filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Affidavit Certification of Locke E. Bowman, # 2 Text of Proposed Order)(Morical, Alice) (Entered: 09/04/2018)
238 ORDER granting 236 Motion to Appear pro hac vice. Attorney Maggie E. Filler for JAY F. VERMILLION added. Applicant shall register for electronic filing, as required by Local Rule 5−3, within 7 days. Copy to Maggie E. Filler via US Mail. Signed by Magistrate Judge Tim A. Baker on 9/6/2018. (SWM) (Entered: 09/06/2018)
239 ORDER granting 237 Motion to Appear pro hac vice. Attorney Locke E. Bowman for JAY F. VERMILLION added. Applicant shall register for electronic filing, as required by Local Rule 5−3, within 7 days. Copy to Locke E. Bowman via US Mail. Signed by Magistrate Judge Tim A. Baker on 9/6/2018. (SWM) (Entered: 09/06/2018)
240 Order to Produce Inmate at Court Proceeding via Videoconference. Warden of Pendleton CF ordered to produce Jay F. Vermillion for court proceeding on 9/20/2018.. Signed by Judge Richard L. Young on 9/6/2018. Paper copies to USM.(JRB) (Entered: 09/06/2018)
241 Minute Entry for status conference held 9/20/18 before Judge Richard L. Young. Final pretrial setting is 6/10/19 and trial is scheduled for 6/24/19. Witness and exhibit list deadline is 1/18/19. Discovery deadline is 2/13/19. SEE ENTRY for other deadlines. (Court Reporter Maggie Techert.) (TMD) (Entered: 09/24/2018)
242 Entry Permitting Law School Student Participation in this Action − At the September 20, 2018, Status Conference, Plaintiff's counsel requested that law school students be permitted to assist with pretrial preparations in this case. Defense counsel raised no objection. This court does not have a student practice rule and the request was taken under advisement. This court now grants permission for Northwestern Pritzker School of Law students to render such services (including the taking of depositions) under the supervision of recruited counsel, Maggie E. Filler and Locke E. Bowman in this case. (See Entry.) Signed by Judge Richard L. Young on 10/22/2018.(RSF) (Entered: 10/22/2018)
243 Joint MOTION for Protective Order , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 11/05/2018)
244 MOTION for Extension of Time to December 3, 2018 to Respond to Discovery Requests, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 11/05/2018)
245 Amended MOTION for Extension of Time to 12/3/18 in which to 244 MOTION for Extension of Time to December 3, 2018 to Respond to Discovery Requests , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 11/05/2018)

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11/06/2018 11/07/2018
11/14/2018 11/19/2018 11/28/2018 11/28/2018 01/04/2019 01/09/2019 01/18/2019
01/29/2019 01/30/2019 01/31/2019

246 RESPONSE in Opposition re 245 Amended MOTION for Extension of Time to 12/3/18 in which to 244 MOTION for Extension of Time to December 3, 2018 to Respond to Discovery Requests , filed by Recruited Counsel MAGGIE E. FILLER. (Filler, Maggie) (Entered: 11/06/2018)
247 REPLY in Support of Motion re 245 Amended MOTION for Extension of Time to 12/3/18 in which to 244 MOTION for Extension of Time to December 3, 2018 to Respond to Discovery Requests , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Exhibit A − Plaintiff's Request for Production, # 2 Exhibit B − Plaintiff's Interrogatories)(Jones, Benjamin) (Entered: 11/07/2018)
248 MOTION for Attorney(s) Matthew B. Underwood to Appear pro hac vice (Filing fee $100, receipt number 0756−5156191), filed by Recruited Counsel MAGGIE E. FILLER. (Attachments: # 1 Exhibit Certification of Matthew B. Underwood In Support of Motion to Appear PHV, # 2 Exhibit Order Granting Motion to Appear PHV)(Filler, Maggie) (Entered: 11/14/2018)
249 ORDER granting 248 Motion to Appear pro hac vice. Attorney Matthew B. Underwood for JAY F. VERMILLION added. Signed by Magistrate Judge Tim A. Baker on 11/19/2018 (dist made) (CBU) (Entered: 11/19/2018)
250 Entry Concerning Selected Matters − The clerk is directed to modify the docket to reflect that Matthew B. Underwood is appearing as recruited counsel for plaintiff. The clerk is directed to update the docket to include Mr. Underwood's email address consistent with the distribution portion of this Entry. SEE ORDER. Signed by Judge Richard L. Young on 11/28/2018. (JRB) (Entered: 11/28/2018)
251 STIPULATED PROTECTIVE ORDER. Signed by Judge Richard L. Young on 11/28/2018.(JRB) (Entered: 11/28/2018)
252 MOTION to Strike 241 Status ConferenceSet DeadlinesSet Scheduling Order Deadlines , filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order, # 2 Exhibit 12.18.18 Discovery Response Letter)(Filler, Maggie) (Entered: 01/04/2019)
253 SCHEDULING ORDER − On motion of the Plaintiff, Jay Vermillion, and for good cause shown, the scheduling order entered on September 24, 2018 (ECF 241) shall be modified. SEE ORDER. Signed by Judge Richard L. Young on 1/9/2019.(JRB) (Entered: 01/09/2019)
254 SCHEDULING ORDER: Due to extended deadlines in the scheduling order entered 1/09/2019, the court VACATES the current final pretrial conference setting of 6/10/19 and trial setting of 6/24/19. Final Pretrial Conference RESET for 9/12/2019 at 9:00 AM (Eastern Time) in room #349, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Richard L. Young. Jury Trial RESET for 9/23/2019 at 9:00 AM (Eastern Time) in room #349, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Richard L. Young. The court has allotted five (5) days for this trial. Signed by Judge Richard L. Young on 1/18/2019 (copy mailed to plaintiff) .(LBT) Modified on 1/18/2019 to indicate copy mailed (LBT). (Entered: 01/18/2019)
255 MOTION for Attorney(s) Melinda K. Johnson to Appear pro hac vice (No fee paid with this filing), filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Exhibit Certification of Melinda K. Johnson In Support of Motion to Appear PHV, # 2 Exhibit Order Granting Motion to Appear PHV)(Filler, Maggie) (Entered: 01/29/2019)
256 ORDER granting 255 Motion to Appear pro hac vice. Attorney Melinda K. Johnson for JAY F. VERMILLION added. Signed by Magistrate Judge Tim A. Baker on 1/30/2019 (dist made) (CBU) (Entered: 01/30/2019)
257 ENTRY − The clerk is directed to modify the docket to reflect that Melinda K. Johnson is appearing as recruited counsel for plaintiff. This modification will assist the court with internal tracking of its pro bono program and will result in the plaintiff receiving a copy of future court Orders. Signed by Judge Richard L. Young on 1/31/2019.(JRB) (Entered: 01/31/2019)

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02/06/2019 02/06/2019 02/06/2019 02/15/2019
02/18/2019 02/28/2019
03/14/2019 03/17/2019 03/18/2019
03/21/2019
03/21/2019 03/25/2019 03/25/2019

258 NOTICE of Appearance by Jonathan Paul Nagy on behalf of Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Nagy, Jonathan) (Entered: 02/06/2019)
259 NOTICE of Appearance by Destiny Reve Scott Wells on behalf of Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Wells, Destiny) (Entered: 02/06/2019)
260 NOTICE of Appearance by Ryan J. Guillory on behalf of Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Guillory, Ryan) (Entered: 02/06/2019)
261 ORDER SETTING TELEPHONIC STATUS CONFERENCE −This cause is set for a telephonic status conference at 9:30 a.m. on February 21, 2019. Parties shall participate in this conference by counsel. The information needed by counsel of record to participate in this telephonic conference will be provided by separate notification. The purpose of this conference is to address a discovery dispute. Signed by Magistrate Judge Tim A. Baker on 2/15/2019.(MGG) (Entered: 02/15/2019)
262 MOTION for Telephonic Settlement Conference, filed by Defendants MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion for Telephonic Settlement Conference)(Dickmeyer, David) (Entered: 02/18/2019)
264 ORDER ON FEBRUARY 21, 2019, TELEPHONIC STATUS CONFERENCE − Parties appeared by counsel February 21, 2019, for a telephonic status conference. Discussion was held regarding discovery, settlement and related matters. Defendants' 262 Motion for telephonic settlement conference is denied. **SEE ORDER FOR FURTHER DETAILS. Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 02/28/2019)
265 Joint MOTION for Extension of Time to File Final Witness and Exhibit Lists, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 03/14/2019)
266 First MOTION To Exceed Ten Deposition Limit, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order)(Filler, Maggie) (Entered: 03/17/2019)
267 ORDER SETTING TELEPHONIC STATUS CONFERENCE − This cause is set for a telephonic status conference at 9:30 a.m. on March 19, 2019. Parties shall participate in this conference by counsel. The information needed by counsel of record to participate in this telephonic conference will be provided by separate notification. The purpose of this conference is to address a discovery dispute. Signed by Magistrate Judge Tim A. Baker on 3/18/2019.(MGG) (Entered: 03/18/2019)
269 ORDER ON MARCH 19, 2019, TELEPHONIC STATUS CONFERENCE AND ORDER SETTING SETTLEMENT CONFERENCE AND RELATED DEADLINES − Parties appeared by counsel March 19, 2019, for a telephonic status conference. The Court heard argument on Defendants objection to Plaintiff's request to conduct a second inspection of the Westville Control Unit ("WCU"). This matter is set for a settlement conference at 1:30 p.m. on June 10, 2019, room #234, United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana, before Magistrate Judge Tim A. Baker. **SEE ORDER** Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 03/21/2019)
270 ORDER to Make Inmate Available − via Telephone. Warden of PENDLETON CORRECTIONAL FACILITY ordered to make JAY F. VERMILLION Available − via Telephone for court proceeding on 6/10/2019.. Signed by Magistrate Judge Tim A. Baker on 3/21/2019.(MGG) (Entered: 03/21/2019)
271 ORDER granting 265 Motion for Extension of Time to File Final Witness and Exhibit Lists to 3/29/19. Signed by Judge Richard L. Young on 3/25/2019. (JRB) (Entered: 03/25/2019)
272 ORDER granting 266 Motion To Exceed Ten Deposition Limit. Signed by Judge Richard L. Young on 3/25/2019. (JRB) (Entered: 03/25/2019)

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03/25/2019 03/25/2019
03/25/2019 03/25/2019 03/28/2019 03/28/2019 03/29/2019 03/29/2019 03/29/2019 03/29/2019 03/29/2019 03/29/2019 04/01/2019 04/04/2019 04/05/2019
04/08/2019

273 MOTION for Leave to File Fourth Amended Complaint, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Exhibit A − Proposed 4th Amended Complaint, # 2 Text of Proposed Order)(Filler, Maggie) (Entered: 03/25/2019)
274 BRIEF/MEMORANDUM in Support re 273 MOTION for Leave to File Fourth Amended Complaint , filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Exhibit 1 − Use and Operation of Adult Offender Administrative Segregation, # 2 Exhibit 2 − Excerpt of Deposition of Douglas Barnes, # 3 Exhibit 3 − Excerpt of Deposition of Mark Levenhagen, # 4 Exhibit 4 − Excerpt of Deposition of Sally Nowatzke, # 5 Exhibit 5 − Letter of Filler to Defense Counsel, # 6 Exhibit 6 − Plaintiff's 1st Request for Production of Documents, # 7 Exhibit 7 − Plaintiff's 2d Request for Production of Documents)(Filler, Maggie) (Entered: 03/25/2019)
275 Unopposed MOTION for Leave to Depose Inmate, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 03/25/2019)
276 Unopposed MOTION for Leave to Depose Inmate, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 03/25/2019)
277 ORDER granting 275 Motion to Depose Inmate − Defendants are granted leave to depose Steven P. Cooper #112852, an inmate at the New Castle Correctional Facility, at a date to be arranged with the facility until such time as the deposition is concluded. Signed by Judge Richard L. Young on 3/28/2019. (JRB) (Entered: 03/28/2019)
278 ORDER granting 276 Motion Leave to Depose Inmate − Defendants are granted leave to depose Darius Dodson #905093, an inmate at the Pendleton Correctional Facility, at a date to be arranged with the facility until such time as the deposition is concluded. Signed by Judge Richard L. Young on 3/28/2019. (JRB) (Entered: 03/28/2019)
279 MOTION for Leave to Depose Inmate, filed by Defendants MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Defendants Leave to Depose Inmate)(Dickmeyer, David) (Entered: 03/29/2019)
280 Witness List , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Dickmeyer, David) (Entered: 03/29/2019)
281 Exhibit List , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Dickmeyer, David) (Entered: 03/29/2019)
282 Witness List , filed by Plaintiff JAY F. VERMILLION. (Filler, Maggie) (Entered: 03/29/2019)
283 Exhibit List , filed by Plaintiff JAY F. VERMILLION. (Filler, Maggie) (Entered: 03/29/2019)
284 Witness List (Amended), filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Dickmeyer, David) (Entered: 03/29/2019)
285 ORDER granting 279 Motion for Leave to Depose Inmate − SEE ORDER. Signed by Judge Richard L. Young on 4/1/2019. (JRB) (Entered: 04/01/2019)
286 MOTION to Require Defendants to Narrow Their Witness List and to Allow Plaintiff to Take Additional Depositions, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order)(Filler, Maggie) (Entered: 04/04/2019)
287 RESPONSE in Opposition re 286 MOTION to Require Defendants to Narrow Their Witness List and to Allow Plaintiff to Take Additional Depositions , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Exhibit 1 − Defendants' Initial Disclosures, # 2 Text of Proposed Order Denying Plaintiff's Motion [ECF 286])(Guillory, Ryan) (Entered: 04/05/2019)
288 RESPONSE in Opposition re 273 MOTION for Leave to File Fourth Amended Complaint , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Dickmeyer, David) (Entered: 04/08/2019)

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289 REPLY in Support of Motion re 286 MOTION to Require Defendants to Narrow Their Witness List and to Allow Plaintiff to Take Additional Depositions , filed by Plaintiff JAY F. VERMILLION. (Filler, Maggie) (Entered: 04/09/2019)
290 REPLY in Support of Motion re 273 MOTION for Leave to File Fourth Amended Complaint , filed by Plaintiff JAY F. VERMILLION. (Filler, Maggie) (Entered: 04/15/2019)
291 MOTION for Leave to File Surreply in Opposition to Motion for Leave to File Fourth Amended Complaint, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Surreply, # 2 Text of Proposed Order)(Dickmeyer, David) (Entered: 04/22/2019)
292 MOTION for Extension of Time to Serve Expert Disclosures and File Objections, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 04/23/2019)
293 RESPONSE in Opposition re 292 MOTION for Extension of Time to Serve Expert Disclosures and File Objections , filed by Plaintiff JAY F. VERMILLION. (Filler, Maggie) (Entered: 04/24/2019)
294 ORDER denying 273 Motion for Leave to File Fourth Amended Complaint − SEE ORDER. Signed by Judge Richard L. Young on 4/26/2019. (JRB) (Entered: 04/26/2019)
295 Unopposed MOTION for Plaintiff to Participate in Person at Settlement Conference, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order)(Filler, Maggie) (Entered: 04/30/2019)
296 REPLY in Support of Motion re 292 MOTION for Extension of Time to Serve Expert Disclosures and File Objections , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Dickmeyer, David) (Entered: 05/01/2019)
297 MARGINAL ENTRY denying Plaintiff's 295 Motion for Plaintiff to participate in person at the settlement conference. Given that a prior settlement conference was not successful, and that the Court typically does not conduct in−person settlement conferences with parties who are incarcerated the motion is denied. Signed by Magistrate Judge Tim A. Baker on 5/2/2019. (SWM) (Entered: 05/02/2019)
298 Entry Discussing Pending Motions − Defendants' motion for time to serve expert disclosures and to file objections to expert testimony, dkt 292 , is granted in part and denied in part. It is for this reason that the motion for time, dkt 292 , is granted to the limited extent that Defendants shall have through June 5, 2019, to serve expert disclosures directly related to the claim that Plaintiff was denied meaningful, periodic review of his prolonged isolation. Defendants shall also have through July 10, 2019, in which to object to expert testimony. Plaintiff wants the opportunity to depose the named witnesses. Plaintiff's motion, dkt 286 , is granted consistent with the following.The parties shall have through May 23, 2019, in which to file a list of trial witnesses, by name, who are actually expected to be called to testify at trial. Any unnamed individual will be stricken. The parties shall have through June 24, 2019, in which to depose any witness named on the other parties' list of trial witnesses. SEE ORDER. Signed by Judge Richard L. Young on 5/3/2019. (JRB) (Entered: 05/03/2019)
299 NOTICE of Joint Memorandum Regarding Pre−Trial Disclosures in Response to Entry Discussing Pending Motions, filed by Plaintiff JAY F. VERMILLION, re 298 Order on MotionOrder on Motion for Extension of Time to File. (Filler, Maggie) (Entered: 05/09/2019)
300 AMENDED PRETRIAL SCHEDULE − The final pre−trial conference in this action is scheduled for September 12, 2019, at 9:00 a.m. in Room 349 of the Birch Bayh Federal Building and United States Courthouse, 46 E. Ohio Street, Indianapolis, IN 46204. This action is set for a jury trial on September 23, 2019, at 9:00 a.m. in Room 349 of the Birch Bayh Federal Building and United States Courthouse, 46 E. Ohio Street, Indianapolis, IN 46204. The court has allotted five (5) days for this trial. This matter is set for a settlement conference at 1:30 p.m. on June 10, 2019, room #234,

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United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana, before Magistrate Judge Tim A. Baker. Discovery shall be reopened through April 15, 2019. SEE ORDER FOR OTHER DEADLINES. Signed by Judge Richard L. Young on 5/13/2019.(JRB) (Entered: 05/13/2019)
301 Statement of Defenses by GARY BRENNAN(Director of Op WCU), MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE(Case Counselor WCU). (Dickmeyer, David) (Entered: 05/13/2019)
302 Statement Plaintiff's Statement of Claims for Proof at Trial by JAY F. VERMILLION. (Filler, Maggie) (Entered: 05/13/2019)
303 Witness List Plaintiff's Amended Trial Witness List, filed by Plaintiff JAY F. VERMILLION. (Filler, Maggie) (Entered: 05/23/2019)
304 Witness List (Trial), filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Dickmeyer, David) (Entered: 05/23/2019)
305 Joint MOTION for Extension of Time to File Objections to Expert Testimony, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 06/05/2019)
306 ORDER − granting 305 Motion for Extension of Time to File Objections to Expert Testimony. Any party who wishes to limit or preclude expert testimony at trial shall file any such objections on or before June 14, 2019. Signed by Judge Richard L. Young on 6/7/2019. (RSF) (Entered: 06/07/2019)
307 ORDER ON JUNE 10, 2019, SETTLEMENT CONFERENCE AND ORDER SETTING TELEPHONIC STATUS CONFERENCE − Parties appeared in person and by counsel June 10, 2019, for a settlement conference. Settlement discussions held, but no settlement was reached. The deadline to object to expert witness testimony is enlarged to June 21, 2019. This cause is set for a telephonic status conference at 9 a.m. on June 18, 2019. Parties shall participate in this conference by counsel. The call−in instructions will be issued by separate order. The purpose of this conference is to discuss settlement. Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 06/11/2019)
308 AMENDED ORDER ON JUNE 10, 2019, SETTLEMENT CONFERENCE AND ORDER SETTING TELEPHONIC STATUS CONFERENCE − Parties appeared in person and by counsel June 10, 2019, for a settlement conference. Settlement discussions held, but no settlement was reached. The deadline to object to expert witness testimony is enlarged to June 21, 2019. This cause is set for a telephonic status conference at 4:30 p.m. on June 18, 2019. Parties shall participate in this conference by counsel. The call−in instructions will be issued by separate order. The purpose of this conference is to discuss settlement. Signed by Magistrate Judge Tim A. Baker on 6/11/2019.(MGG) (Entered: 06/11/2019)
310 ORDER ON JUNE 18, 2019, TELEPHONIC STATUS CONFERENCE AND ORDER SETTING TELEPHONIC STATUS CONFERENCE − Parties appeared by counsel June 18, 2019, for a telephonic status conference. Discussion was held regarding settlement and related matters. This cause is set for a telephonic status conference at 10 a.m. on July 1, 2019. Parties shall participate in this conference by counsel. The call−in instructions will be issued by separate order. The purpose of this conference is to discuss settlement. Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 06/19/2019)
311 MOTION to Exclude Expert Witness Robert Morgan from Testifying, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order)(Filler, Maggie) (Entered: 06/21/2019)
312 BRIEF/MEMORANDUM in Support re 311 MOTION to Exclude Expert Witness Robert Morgan from Testifying , filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Ex. 1−Morgan Report, # 2 Ex. 2−Robert Morgan CV, # 3 Ex. 3−Testimony, Publications, and Compensation, # 4 Ex. 4−Deposition Transcript, # 5 Ex. 5−Brazeau Opinion, # 6 Ex. 6−CCLA Lower Court Opinion, # 7 Ex. 7−CCLA

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Court of Appeals Opinion, # 8 Ex. 8−Corrections Today, # 9 Ex. 9−Correction Today Website (Speak Out Column Description), # 10 Ex. 10−Morgan Meta−Analysis, # 11 Ex. 11−Haney, # 12 Ex. 12−Specialty Guidelines for Forensic Psychology, # 13 Ex. 13−Kupers Report, # 14 Ex. 14−Heilburn, et al.,(1990) − An MMPI−based empirical model of malingering and deception, # 15 Ex. 15−Melton, et al.,, # 16 Ex. 16−BCCLA v. Canada (2018), # 17 Ex. 17−Colorado Study, # 18 Ex. 18−Smith (2011), # 19 Ex. 19−Grassian & Kupers, # 20 Ex. 20−Zinger, et al., [NEW] − (2001) The psychological effects of 60 days in Administrative Segregation, # 21 Ex. 21−Walters, # 22 Ex. 22−Ecclestone, # 23 Ex. 23−Cloyes, # 24 Ex. 24−Bonta and Gendreau, # 25 Ex. 25−Heigel)(Filler, Maggie) (Entered: 06/21/2019)
313 MOTION to Exclude the Testimony of Plaintiff's Expert Witnesses, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 06/21/2019)
314 BRIEF/MEMORANDUM in Support re 313 MOTION to Exclude the Testimony of Plaintiff's Expert Witnesses , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Exhibit A − Pacholke Rept, # 2 Exhibit B − Pacholke Dep, # 3 Exhibit C − ASCA Guidelines, # 4 Exhibit D − ACA Expected Practices, # 5 Exhibit G − Pauls Affidavit)(Dickmeyer, David) (Entered: 06/21/2019)
315 SEALED Exhibits E and F , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Exhibit E − Kupers Dep, # 2 Exhibit F − Kupers Rept)(Dickmeyer, David) Modified on 6/24/2019 (JRB). (Entered: 06/21/2019)
316 MOTION to Maintain Document Under Seal 315 SEALED MOTION , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 06/21/2019)
317 Joint MOTION for Extension of Time to File Response to July 9, 2019 re 313 MOTION to Exclude the Testimony of Plaintiff's Expert Witnesses, 311 MOTION to Exclude Expert Witness Robert Morgan from Testifying , filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order)(Filler, Maggie) (Entered: 06/26/2019)
319 NOTICE of Appearance by Marley Genele Hancock on behalf of Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Hancock, Marley) (Entered: 07/01/2019)
320 ORDER ON JULY 1, 2019, TELEPHONIC STATUS CONFERENCE − Parties appeared by counsel July 1, 2019, for a telephonic status conference. Discussion was held regarding settlement. The parties shall continue their settlement discussions and copy the Magistrate Judge on all settlement correspondence. Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 07/03/2019)
321 RESPONSE in Opposition re 313 MOTION to Exclude the Testimony of Plaintiff's Expert Witnesses Dan Pacholke and Terry Kupers, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Ex. 1 Pacholke Report, # 2 Ex. 2 Dan Pacholke CV, # 3 Ex. 3 Dan Pacholke Career Highlights, # 4 Ex. 4 Pacholke Deposition, # 5 Ex. 5 Vera Report, # 6 Ex. 6 Levenhagen Deposition, # 7 Ex. 7 Cold Storage Report, # 8 Ex. 8 Kupers Report (Filed Under Seal), # 9 Ex. 9 Terry Kupers CV, # 10 Ex. 10 Kupers Deposition)(Filler, Maggie) (Entered: 07/05/2019)
322 SEALED Ex. 8 Kupers Report, filed by Plaintiff JAY F. VERMILLION. (Filler, Maggie) (Entered: 07/05/2019)
323 MOTION to Seal Document 322 SEALED Document (Case Participants − doc) Ex. 8 Kupers Report, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Propsed Order)(Filler, Maggie) (Entered: 07/05/2019)
324 RESPONSE in Opposition re 311 MOTION to Exclude Expert Witness Robert Morgan from Testifying , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Exhibit 1

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09/09/2019 09/10/2019

− Meta−Analysis, # 2 Exhibit 2 − Colorado Study Article, # 3 Exhibit 3 − Morgan Dep, # 4 Exhibit 4 − OKeefe Article)(Dickmeyer, David) (Entered: 07/09/2019)
325 REPLY in Support of Motion re 313 MOTION to Exclude the Testimony of Plaintiff's Expert Witnesses , filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Dickmeyer, David) (Entered: 07/12/2019)
326 Entry Concerning Selected Matters − Defendants' motion to maintain the document at docket number 315 under seal, dkt 316 , is granted. Joint Motion for time, dkt 317 , is granted. The deadline to respond to the motions to exclude expert testimony was extended through July 9, 2019. Plaintiff's motion to maintain the document at docket number 322 under seal, dkt 323 , is granted. SEE ORDER. Signed by Judge Richard L. Young on 7/16/2019. (JRB) (Entered: 07/16/2019)
327 Joint MOTION for Extension of Time to August 19, 2019 for Pretrial Deadlines, filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order)(Filler, Maggie) (Entered: 07/16/2019)
328 REPLY in Support of Motion re 311 MOTION to Exclude Expert Witness Robert Morgan from Testifying , filed by Plaintiff JAY F. VERMILLION. (Attachments: # 1 Exhibit 1 − Excerpts of Dr. Morgan Deposition)(Filler, Maggie) (Entered: 07/16/2019)
329 ORDER granting 327 Motion to Extend Pretrial Deadlines − The Amended Pretrial Schedule 300 , shall be modified as follows. The date 7/22/19, appearing on page 3, is hereby stricken and replaced with the date 8/19/19. The date 8/2/19, appearing on page 4, is hereby stricken and replaced with the date 8/30/19. Signed by Judge Richard L. Young on 7/19/2019. (JRB) (Entered: 07/19/2019)
330 MOTION to Withdraw Attorney Appearance of Benjamin M.L. Jones, filed by Defendants GARY BRENNAN, DAWN BUSS, RALPH CARRASCO, MARK E. LEVENHAGEN, BRETT MIZE, HOWARD MORTON, SALLY NOWATZKE, WILLARD PLANK, CHARLES WHELAN. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 08/06/2019)
331 ORDER granting 330 Motion to Withdraw Attorney Appearance. Attorney Benjamin Myron Lane Jones withdrawn. Signed by Magistrate Judge Tim A. Baker on 8/7/2019. (SWM) (Entered: 08/07/2019)
332 Joint MOTION for Extension of Time to File Pretrial Documents, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 08/15/2019)
333 ORDER GRANTING 332 JOINT MOTION TO EXTEND PRETRIAL DEADLINES. The Amended Pretrial Schedule, Doc. No. 300 , shall be modified as follows. The date July 22, 2019, appearing on page 3, is hereby stricken and replaced with the date August 26, 2019. Signed by Judge Richard L. Young on 8/16/2019. (RSF) (Entered: 08/16/2019)
334 Joint MOTION to Vacate Pending Deadlines and Notice of Tentative Settlement, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 08/20/2019)
335 ORDER granting Parties' 334 Joint Motion to Vacate Pending Deadlines: The parties have notified the Court that a tentative settlement has been reached, and request that pending deadlines be vacated. All pending deadlines are vacated. The trial and final pretrial conference dates are also vacated. All pending motions are denied, without prejudice, as moot and any remaining matters are stayed, pending the filing of a stipulation of dismissal. Parties shall file a stipulation of dismissal within 28 days. Signed by Magistrate Judge Tim A. Baker on 8/21/2019.(SWM) (Entered: 08/21/2019)
336 Correspondence REQUESTING COPY of Case Docket Sheet, filed by Jay F. Vermillion. (Attachments: # 1 Docket Sheet) (CKM) (Entered: 09/09/2019)
337 Unopposed MOTION for Extension of Time to Finalize Settlement, filed by Defendants GARY BRENNAN, MARK E. LEVENHAGEN, BRETT MIZE, SALLY

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NOWATZKE. (Attachments: # 1 Text of Proposed Order)(Dickmeyer, David) (Entered: 09/10/2019)
338 ORDER granting Defendant's 337 Motion for Extension of Time. The parties shall file a stipulation of dismissal by October 18, 2019 Signed by Magistrate Judge Tim A. Baker on 9/12/2019. (SWM) (Entered: 09/12/2019)
339 NOTICE of Change of Attorney Information. Consistent with Local Rule 5−3, Maggie E. Filler hereby notifies the Clerk of the court of changed contact information. Change of Attorney Office Address (Filler, Maggie) (Entered: 10/18/2019)
340 STIPULATION of Dismissal (JOINT), as to Plaintiff JAY F. VERMILLION, filed by JAY F. VERMILLION. (Attachments: # 1 Text of Proposed Order)(Filler, Maggie) (Entered: 10/18/2019)
341 ORDER ON STIPULATION OF DISMISSAL − This action is dismissed with prejudice, each party to bear their own fees and costs. Signed by Judge Richard L. Young on 10/21/2019.(JRB) (Entered: 10/21/2019)

Case #: 1:15−cv−00605−RLY−TAB

 
 EXPERT REPORT OF DAN PACHOLKE
JAY F. VERMILLION, Plaintiff, v. MARK E. LEVENHAGEN, et al., Case No. 1:15-cv-605-RLY-TAB March 31, 2019
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I. Introduction
I have been retained by the MacArthur Justice Center on behalf of its client, Jay Vermillion. As an expert in penology, I was asked to tour prison facilities to assess conditions of confinement and review documents regarding the practices and policies of the Indiana Department of Correction (IDOC) and the actions of IDOC employees named as defendants as they relate to this case. I was asked to assess if the Defendants complied with generally accepted practices, principles and standards, as well as IDOC policy, with regard to the management, placement, and retention of Jay Vermillion in segregation.
As described in further detail below, it is my opinion that the Defendants’ conduct in this case deviated from accepted correctional practices and standards for the use of restricted housing. It is my further opinion that there was no legitimate penological justification for the Defendants to place Mr. Vermillion in segregation for an extended indeterminate period of time.
II. Methodology 1. Reviewed various documents relevant to Mr. Vermillion’s experience as an inmate of IDOC. (See Attachment 4: Documents Reviewed) 2. Conducted a review of materials related to the management of segregation units. 3. On November 8, 2018, I viewed the Westville Control Unit where Mr. Vermillion was housed for over three years. That same day, I also
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toured the Indiana State Prison, including the honor dorm where Mr. Vermillion had been housed prior to his placement in the WCU. In preparing this report, I have also relied upon my thirty-five (35) years of experience and related training and education in the field of adult institutional corrections. This experience includes: Correctional Officer (2.5 years); Lieutenant (3 years); Captain (6 years); Superintendent (5 years); Director of Performance Management (4 years); eight years in administration (Deputy Director Prisons, Director Prisons, Deputy Secretary, and Secretary) in the Washington State Department of Corrections (WADOC); and work performed in over 20 states and four jurisdictions outside of the continental United States. I have also been a consultant with the National Institute of Corrections, Defense Technology Corporation and New York University and have published a number of articles related to the field.
As a Correctional Sergeant and Captain, I directly managed long-term segregation units, and as a Superintendent and Deputy Director, I led efforts to reform the system-wide use of long-term segregation in WA state, which resulted in an over 50% decrease in the number of people housed in this setting while also lowering system-wide violence for eight consecutive years. I co-authored a book and field guide on prison safety, Keeping Prisons Safe, and co-designed the WADOC CORE training program and the Correctional Officer Achievement Program (See Attachment 1-3: CV). At New York University, I was co-director of Segregation Solutions, an initiative assisting correctional agencies to reduce or
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eliminate the use of segregation while also maintaining or improving safety in facilities.
III. Factual Background 1. Jay Vermillion is a 59-year-old inmate who has been in the custody of the
Indiana Department of Correction (IDOC) since 1997. He currently resides at Pendleton Correctional Facility (PCF). 2. On July 12, 2009, when Mr. Vermillion resided at the Indiana State Prison (ISP), three inmates in his housing unit escaped and were later apprehended. 3. In the course of their investigation of the escape, IDOC staff interviewed a staff member who denied being involved in the escape but admitted to trafficking tobacco and alleged that he had brought in this contraband for Mr. Vermillion. 4. On July 22, 2009, Mr. Vermillion was interviewed by IDOC Internal Affairs Investigators Willard Plank, Dawn Buss, and Charles Whelan. When asked about Mr. Bates allegation that Mr. Vermillion was involved in trafficking tobacco, Mr. Vermillion declined to continue with the interview. Mr. Vermillion was then immediately placed in segregation. 5. On July 31, 2009, IDOC Internal Affairs Investigator Ralph Carrasco wrote a conduct report charging Mr. Vermillion with trafficking. 6. On August 12, 2009, Mr. Vermillion was found guilty of trafficking by Disciplinary Hearing Board Officer Bessie Leonard, who sanctioned him to
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one year in disciplinary segregation, demoted him from Credit Earning Class (CC) I to CCII, and took 30 days of earned time credit. 7. On August 12, 2009, Mr. Vermillion was transferred from ISP to Westville Correctional Facility and placed into their maximum control (segregation) unit. 8. On September 4, 2009 and October 5, 2009, Case Manager Doug Barnes conducted Thirty Day Segregation Reviews of Mr. Vermillion which both state, “Your segregation time is still warranted and it has been determined that you should remain in segregation”. 9. On October 08, 2009, Mr. Vermillion’s appeal of his disciplinary sanction and classification, having previously been denied by Superintendent Mark Levenhagen and WCU Classification Director Larry Warg, received a final denial with a modification from Final Reviewing Authority Charles Penfold. Mr. Penfold reduced Mr. Vermillion’s sanction from one year to thirty days to comply with an Executive Directive issued on January 21, 2009 that limited disciplinary segregation sanctions to thirty days for Class A infractions. This Executive Order is reflective of the changes that many correctional systems have implemented in disciplinary segregation in the past few decades, as correctional professionals have become aware of the harmful impact and limited usefulness of extended periods of segregation. 10. On October 22, 2009, Mr. Vermillion was transferred from disciplinary segregation to department wide administrative segregation, an indefinite
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change in status but not a change in housing unit. The change came about via an email exchange among Superintendent Levenhagen, Executive Director Brett Mize and others, reacting to the Penfold decision and concluding that Mr. Vermillion would “have to [be] put … in AS [administrative segregation] somewhere.” 11. On October 22, 2009, a Classification Hearing was conducted by Case Manager Doug Barnes approving Mr. Vermillion’s placement in department wide administrative segregation “per B Mize”. In the box on the hearing report designated for the signature of offender, it states, “unable to sign”. 12. On October 22, 2009, Mr. Vermillion, after being informed of his placement on department wide administrative segregation, appealed the decision. 13. On October 28, 2009, Case Manager Doug Barnes conducted Mr. Vermillion’s first Administrative Segregation Review. It stated that “Department-Wide Administrative status shall remain in effect unless otherwise rescinded by the Executive Director.” Mr. Vermillion received these reviews approximately every thirty days throughout his time in administrative segregation. 14. On November 10, 2009, Superintendent Levenhagen denied Mr. Vermillion’s appeal of his classification. 15. On April 07, 2010, Mr. Vermillion filed a Petition for Habeas Corpus (3:10CV-119-PPS).
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16. On August 3, 2010, Final Reviewing Authority Charles Penfold remanded Mr. Vermillion’s disciplinary action for a rehearing.
17. On September 07, 2010, Hearings Officer Robert Johnson found Mr. Vermillion guilty of the same trafficking violation and sanctioned him to one year in disciplinary segregation, demoted him from Credit Earning Class (CC) I to CCII, and took 30 days of earned time credit.
18. On December 08, 2010, Mr. Vermillion’s appeal of his disciplinary sanction and classification, having previously been denied by Superintendent Mark Levenhagen and WCU Asst. Director of Operations David Leonard, received a denial from Final Reviewing Authority Charles Penfold. After resubmitting his appeal, Mr. Vermillion received another denial of his appeal from Mr. Penfold on February 23, 2011.
19. On March 23, 2011, Mr. Vermillion filed another Petition for Habeas Corpus (3:11-CV-123-TLS).
20. On May 5, 2011, Caseworker Sally Nowatzke completed Mr. Vermillion’s annual classification review on Mr. Vermillion, overriding his level 2 security score to a level 4 and adding a note “remain 1 year clear of conduct”.
21. On June 27, 2011, Mr. Penfold remanded Mr. Vermillion’s disciplinary case back to the facility for a second rehearing.
22. On July 27, 2011, Mr. Vermillion received his third hearing on the trafficking charge from 2009. At the hearing, Hearing Officers B. Spencer
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and Paula Antisdel found him guilty and sanctioned him to lose 60 days of earned credit time and receive a demotion to CCII. 23. On January 12, 2012, Mr. Vermillion, having already received a denial of his appeal from Superintendent Levenhagen, received a denial from Michael Barnes from IDOC’s Legal Services Division. 24. On March 29, 2012, Mr. Vermilion filed his third Habeas petition (3:12-CV150-PPS). 25. On February 18, 2013, Mr. Vermillion was transferred to Pendleton Correctional Facility. 26. On June 7, 2013, Mr. Vermillion was approved for release from department-wide administrative segregation and on September 19, 2013, he was placed back on general population. 27. On November 14, 2013, Mr. Robert Bugher from IDOC Legal Services Division remanded Mr. Vermillion’s disciplinary case from 2009 back to the facility for a fourth rehearing. 28. On February 13, 2014, the disciplinary charges against Mr. Vermillion were dismissed.

Timeline

Date

Action or Document

01/21/09 07/12/09 07/22/09 07/29/09

Executive Directive re Disciplinary Code Escape at ISP All escapees apprehended Vermillion interviewed by IA & subsequently placed in segregation pending investigation

Authorized by/Author

8

08/12/09
09/04/09 09/15/09 09/16/09 10/05/09 10/08/09 10/08/09 10/16/09
10/22/09
10/22/09 10/28/09 11/10/09 04/07/10 05/10/10 08/31/10 09/07/10 09/29/10 10/11/10
12/08/10

DHB Hearing: Guilty Sentence: 1-year disciplinary segregation, 30 days ECT, demoted to CC II
Vermillion transferred from ISP to WCU disciplinary segregation
Thirty Day Segregation Review
Classification Appeal Denied
Classification Appeal Denied
Thirty Day Segregation Review CAB Appeal Response: Modify sanction to 30 days to comply w/ Exec Directive Transfer Authority Form: WCU (D/S) to WCU (A/S) Correspondence returning affidavits V sent to ISP stating staff would not be signing per DOC Legal Classification Hearing: Placed on department-wide administrative segregation Classification Appeal Administrative Segregation Review (repeated every 7 then every 30 days) Classification Appeal Denied
Vermillion filed Habeas Petition 3:10-CV119-PPS Annual Classification Review
CAB Appeal Response: Remand for Rehearing DHB Rehearing (#1): Guilty Sanction: 1yr D/S, 30 days ETC, demote to CCII Motion re V’s Habeas petition; subsequent dismissal CAB Appeal Denied
CAB Appeal Denied

DHB Bessie Leonard
WCU Case Counselor Sally Nowatzke WCU Director of Operations Gary Brennan Case Manager Doug Barnes Supt. Mark Levenhagen WCU Classification Director Larry Warg Doug Barnes Charles Penfold
Exec Asst. Howard Morton
Doug Barnes “Per B Mize”
Vermillion Doug Barnes
Supt. Mark Levenhagen
Caseworker Patterson Charles Penfold
DBH Chairman Robert Johnson Linda Leonard
WCU Asst. Director of Operations David Leonard Charles Penfold

9

02/04/11 CAB Appeal Denied

02/23/11 03/23/11
05/05/11
05/31/11 06/27/11 07/12/11
07/15/11

CAB Appeal Denied Vermillion filed Habeas Petition 3:11-CV123-TLS Annual Classification Review, score overridden to level 4 Vermillion appeals classification CAB Appeal: Remand for Rehearing Motion re V’s Habeas petition; subsequent dismissal Classification appeal denied

07/27/11 DHB Rehearing: Guilty Sanction: 60 days ECT taken, demoted to CC II

Supt. Mark Levenhagen Charles Penfold
Caseworker Sally Nowatzke
Charles Penfold Stephanie Rothenberg Asst. Supt. Of Operations DHB Chairpersons B. Spencer & Paula Antisdel

09/28/11
01/12/12 03/29/12
02/18/13
09/19/13 11/14/13
02/13/14
02/14/14

CAB Appeal Denied
CAB Appeal Denied Vermillion filed Habeas Petition 3:12-CV150-PPS Vermillion transferred to Pendleton Correctional Facility Vermillion placed in general population CAB Appeal: Remand for Rehearing
Report of Disciplinary Hearing: Case dismissed Trafficking charge expunged in OIS, returned 60 days ECT, reversed demotion in CC

Supt. Mark Levenhagen Michael Barnes
Robert (Bob) Bugher Jennifer Rinehart Bob Bugher (via email)

IV. Restricted Housing: National Perspective Over the past two decades, efforts have steadily increased to understand and mitigate the use and negative impacts of segregation. In Washington State, our acuity around this issue was initially informed by the work of Dr. David Lovell and

10

Dr. Lorna Rhodes from the University of Washington, beginning with a study1 they published in 2000 examining who we were keeping in segregation. This focus on understanding and mitigating the impacts of segregation and reducing its use overall continued through the latter half of my career, a process I described in a U.S Department of Justice (US DOJ) policy paper, More than Emptying Beds: A Systems Approach to Segregation Reform.2 Washington State was not alone in these efforts. Across the country, many states and the federal government have initiated policies to reduce the use of segregation, building on the growing recognition that long-term isolation is harmful, counterproductive, and costly.3
Nationally, mental health professionals such as Dr. Stuart Grassian and Dr. Craig Haney started writing about the psychological impacts of segregation in the late 80’s, and soon after, organizations such as the American Civil Liberties Union (ACLU) and Human Rights Watch (HRW) began investigating what was happening in these units. IDOC in particular should have an institutional memory around these issues as it was challenged in court regarding its segregation practices not long after opening its first super-max facility. This federal class
1 Lovell, D., Cloyes, K., Allen, D., Rhodes, L. 2000. Who Lives in Super-Maximum Custody? A Washington State Study. Available at https://www.researchgate.net/publication/290958512_Who_lives_in_super2 Pacholke, D. & Mullins S. F. 2015. Bureau of Justice Assistance. More Than Emptying Beds: A Systems Approach to Segregation Reform. Available at https://www.bja.gov/publications/MorethanEmptyingBeds.pdf 3 Léon Digard, Elena Vanko, and Sara Sullivan. Rethinking Restrictive Housing: Lessons from Five U.S. Jail and Prison Systems. New York: Vera Institute of Justice (“Vera”), 2018. Pg. 5-8. Available at: https://www.vera.org/publications/rethinking-restrictive-housing
11

action, filed in 1992 by the Indiana ACLU, accused the department of unconstitutional practices including excessive use of force, use of physical restraints as a punishment, and abusive use of chemical agents. In 1994 the action was settled, but in 1997, HRW issued a report, “Cold Storage: SuperMaximum Security Confinement in Indiana,”4 which criticized the operations of both super-max facilities operated by IDOC and assessed how they failed to comply with human rights standards in the hope of “assist(ing) the people and government of Indiana evaluate their legality, wisdom, and impact.”5 This report made recommendations for segregation reform in the treatment and conditions of confinement for mentally ill inmates, lengths of stay, improvements in physical conditions at the facilities, use of “harsh and counterproductive practices,” and monitoring.6
Starting in 2005, with their creation of the Commission on Safety and Abuse in America’s Prisons, the Vera Institute of Justice (“Vera”) has convened correctional and criminal justice professionals to identify issues and reform practices in segregation. In 2010, they began working more intensively with specific jurisdictions, including Washington State, to analyze their data, policies and practices, offer recommendations, and identify promising practices to reduce the use of segregation. In a report issued by Vera in May 2018, examining lessons learned from their more than ten years of working on restricted housing
4 Human Rights Watch. Cold Storage: Super-Maximum Security Confinement in Indiana. October 1997. Available at https://www.hrw.org/legacy/reports/1997/usind/ 5 Id. pg. 3 6 Id. pg. 7-9
12

reform, these researchers found that “social isolation, sensory deprivation, and enforced idleness are a toxic combination that can result in…anxiety, depression, anger, difficulties with impulse control, paranoia, visual and auditory hallucinations, cognitive disturbances, obsessive thoughts, hypersensitivity to stimuli, post-traumatic stress disorder, self-harm, suicide, and psychosis”7 As Mr. Levenhagen noted in his deposition, the National Institute of Corrections has been offering training on the effects of restricted housing for over a decade (he recalls attending in 2006 or 2007).8
More recently, the Association of State Correctional Administrators in 2013 issued Restrictive Status Housing Policy Guidelines.9 In 2016, the US Department of Justice also issued a set of guiding principles on the use of restrictive housing.10 In 2016, the American Correctional Association (ACA) adopted new performance-based standards11 for the use of restricted housing. These standards, though not representing the most progressive or innovative national practices, do set a bar as the basic practices in which all correctional systems should be operating at minimum. The guidelines and the standards reflect what the field has accepted as best practices after several decades of research, litigation, correctional trade publication articles and discussion at
7 Digard, et al. Pg. 5-6. 8 Levenhagen deposition pg. 5 & 6. 9 Available at https://www.asca.net/pdfdocs/9.pdf 10 Available at https://www.justice.gov/archives/dag/report-and-recommendations-concerninguse-restrictive-housing 11 The full 2016 standards are available online at www.aca.org. Select “Standards & Accreditation”, then “Standards & Committees”, and then select “Restrictive Housing Committee”.
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conferences, training events, and national and regional correctional professional meetings.
V. Restricted Housing Practices: Length of Stay In 2018, the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School (Liman) published a research project,12 the fourth in a series examining nationwide data on the use of solitary confinement. Data was collected from 43 responding jurisdictions that collectively accounted for 80.6% of the U.S. prison population. Of the responding jurisdictions, 22.8% of those prisoners in restrictive housing were there for 15 days to one month; 31.6% served one to three months; 15.9% served three to 6 months; 11.1% served 6 months to a year; 9.7% served one to three years; 4.3% served three to six years; and 4.7% had been in restricted housing for six years or more. (2018 ASCA-Liman, pg. 14). In their response to the ACSA-Liman Survey, IDOC reported that during the time period surveyed, 6.6% (1,741) of its population was being held in some form of restrictive housing (pg. 12), an increase from their data in the previous report published in this series, 2016’s Aiming to Reduce Time-in-Cell,13 in which they reported that 5.9% (1,621) of their
12 Resnik, Judith and VanCleave, Anna and Bell, Kristen and Harrington, Alexandra and Conyers, Gregory and McCarthy, Catherine and Tumas, Jenny and Wang, Annie, Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell (October 10, 2018). Yale Law School, Public Law Research Paper No. 656. 13 Resnik, Judith and VanCleave, Anna and Bell, Kristen and Boykin, Olevia and Guilmette, Corey and Hudson, Tashiana and Li, Diana and Meyers, Joseph and Mirell, Hava and Albertson, Skylar and Gifford, Alison and Purcell, Jessica and Posick, Bonnie, Aiming to Reduce Time-inCell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms (November 2016). Yale Law School, Public Law Research Paper No. 597. pg. 22.
14

population was in restrictive housing. For the 2018 report, IDOC communicated that of the 1,741 inmates they held in restricted housing, 7.5% served 15 days to one month; 20% served one to three months; 16.1% served three to six months; 20.3% served six to twelve months; 22.5% served one to three years; 7% served three to six years; and 6.6% served more than six years (pg. 15). The ASCA-Liman reports are the best benchmarks the correctional industry has to understand the national practices and trends in restricted housing length of stay. As illustrated in Chart 1, IDOC’s average length of stay vary from the national trend. Specifically, IDOC has double the inmates serving 6 months to three years in restrictive housing than the national average and it uses shorter 15 day to 3 months sanctions far less than the national average. Chart 1*
*Data from ASCA-LIMAN Restrictive Housing 2018 Report
15

Restricted housing practices have been evolving for several decades. IDOC’s Executive Directive #09-07, issued on January 21, 2009, on which Mr. Penfold relied when he modified Mr. Vermillion’s initial disciplinary sanction from six months to thirty days, reflects this national shift towards shorter lengths of stay in restricted housing. Unfortunately, as the ASCA-Liman Report data reflects, changes in policy doesn’t always equate to changes in practice. Correctional staff still exercise a great deal of discretion, especially in the use of administrative segregation, which can result in abuses such as inmates remaining in segregation for extended periods with no penological purpose, despite positive changes in the formal policy.
VI. Administrative Segregation A 2016 report on the topic released by the U.S. Department of Justice National Institute of Justice defines administrative segregation as a practice “used to separate those deemed to pose a significant threat to institutional security from the general population.” It further states, “Inmates are often classified to administrative segregation or transferred to these units and facilities based on patterns of disruptive behavior, security threat group identifications, or designation as high-risk inmates.”14
14 N.A. Frost & C.E. Monteiro, U.S. Department of Justice National Institute of Justice, March 2016. Administrative Segregation in U.S. Prisons. Page 5. https://www.ncjrs.gov/pdffiles1/nij/249749.pdf
16

IDOC has two types of administrative segregation. According to their Administrative Segregation Policy # 02-01-111(V), Facility Administrative Segregation can be used for offenders “who have not been charged with a rule violation” based on “threat to self, others, property, the security and/or orderly operation of the facility presented by the offender’s continued presence in the general offender population.” The policy then provides a list of example reasons for this placement, with the caveat that administrative segregation assignment is not limited to these. The examples listed include history of escape risk, active member of a security threat group who pose a threat to the safe and orderly operation of the facility, and a documented history of behavior that causes staff to believe that that the offender’s continued presence in general population would be detrimental to the security of the facility, among others.
The policy also describes a second type of administrative segregation called Department-Wide Administrative Segregation. Appendix XVI-C of Policy # 02-01111, Criteria/Procedure for Placement in Department-Wide Administrative Segregation Unit, offers details regarding criteria for admittance. “Offenders selected for a Department-wide administration segregation unit must have exhibited extraordinary security concerns, such as seriously injuring staff or offenders, participating in a hostage situation, identified security threat group leader, heavily involved in trafficking or have a lengthy history of serious (Class A and/or Class B) conduct violations.”
17

IDOC’s administrative segregation policies were examined in a 2013 project of the Liman Public Interest Program at Yale Law School, which conducted a national review of correctional policies on administrative segregation.15 In reviewing these policies nationwide, they found that “most permit placement in segregation based on a wide range of rationales” and that “the elasticity suggests that administrative segregation may be used for goals other than incapacitation.” In their review, some commenters noted that administrative segregation had the potential for overuse if the placement decision was based on being “mad” at rather than “scared” of an inmate. In other words, officials with broad discretion might misuse administrative segregation to retaliate against an inmate rather than using it as a tool to manage inmates who pose a legitimate threat to the security of the institution. In looking at different policy examples regarding placement, their review notes IDOC Policy #02-01-111 as an example with “few enumerated factors and general authority.” Lacking clear factors necessary to make an administrative segregation placement and general authority to do so leaves a great deal of discretion to correctional administrators to use, or misuse, this classification.
When Mr. Vermillion’s initial disciplinary sanction of one year in disciplinary segregation was found to be outside of an executive directive limiting this
15 H. Metcalf, J. Morgan, S. Oliker-Friedland, J. Resnik, J. Spiegel, H. Tae, A. Work, & B. Holbrook. June 2013. Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies. Available at: https://law.yale.edu/system/files/area/center/liman/document/Liman_overview_segregation_June _25_2013_TO_POST_FINAL(1).pdf
18

sanction to 30 days, IDOC administrators decided to reclassify Mr. Vermillion to department-wide administrative segregation, as discussed in an email chain on October 8, 2009. Department-wide administrative segregation (DWAS) is an indefinite placement requiring an override of his medium custody classification score. It was Charles Penfold, who served at IDOC as the Final Reviewing Authority for Adult Disciplinary Policies and Procedures in the initial years of Mr. Vermillion’s placement in segregation, who modified Mr. Vermillion’s initial disciplinary sanction of one year to 30 days upon appeal. In deposition, when asked why he thought Mr. Vermillion had initially received a sanction outside the allowable limits on disciplinary segregation, Mr. Penfold speculated that this was due to the escape at the facility, the “hype based on the case” and “all of the inconveniences that it cost the facility”. In his words, they were trying to get “their pound of flesh.”16
In assessing IDOC’s placement of Mr. Vermillion in department-wide administrative segregation, nothing in the documents related to this case indicated to me that Mr. Vermillion exhibited extraordinary security concerns. In a charge that was later dropped and expunged from his record, he was initially found guilty of trafficking, for which he served a term in disciplinary segregation. He has only one infraction on his record, a Class C for insolence, vulgarity, or profanity. His disciplinary record does not justify placement in administrative
16 Penfold deposition pg. 95.
19

segregation at all, much less holding him there for the debilitating period of more than three years.
In the October 8, 2009 email chain, Mr. Levenhagen, the Superintendent of ISP at the time, asserts that Mr. Vermillion was the funder or “money man” who “financed the entire escape.” This assertion is not supported by the Escape Investigation Report, which documents a great deal of staff and inmate misconduct, including that of Counselor Bates, who told investigators he had trafficked in contraband (a cell phone and tobacco) with Mr. Vermillion, but does not offer concrete evidence connecting Mr. Vermillion to the escape.
When asked in deposition why he believed that Mr. Vermillion was involved in the escape, Mr. Levenhagen stated that he believes this because a large amount of cash was found in the law library where Mr. Vermillion worked and because the escapees had cash when they left the prison that it was “more than coincidence”. If this connection were strong enough to implicate Mr. Vermillion in the escape, there certainly would have been some mention of it in the investigative report. There is none. When asked if there were any other evidence that Mr. Vermillion provided cash to any of the escapees, he states that to his knowledge there is none and that he had “not heard anything more substantial than that.”17
17 Levenhagen deposition pg. 146-150. 20

When questioned regarding how the escape had affected him personally, Mr. Levenhagen admitted that the incident was a professional embarrassment and that he felt humiliated. He speculated that he may have been “treated a little bit more kindly” because the superintendent who preceded him, Ed Buss, was the IDOC Commissioner at the time of the escape so “it was actually more his administration more than mine.”18 Levenhagen stated that he “was instructed to take action” by either Commissioner Buss or the Commissioner’s Chief of Staff, Dan Ronray, which is why he forwarded the email chain to Executive Director Brett Mize and stated that they would “have to put him in AS [administrative segregation] somewhere.” In deposition, Brett Mize stated that he knew nothing about the outcome of the ISP escape investigation and the only information he had related to Levenhagen’s allegations against Vermillion was this email.19
This exchange suggests that the Defendants were using DWAS to retaliate against Mr. Vermillion for something they never charged him with and did not have sufficient evidence to support. In my experience, and in the IDOC’s written policies, administrative segregation should be used for inmates presenting a serious threat to the safety of employees, contract staff, volunteers or other inmates as demonstrated through a pattern of violent or seriously disruptive behavior, or for inmates with extreme protection needs. It is not meant to punish
18 Levenhagen deposition pg. 113-115. 19 Mize deposition pg. 152-153.
21

an inmate based on nothing more than the suspicions of embarrassed prison officials.
The dangers of misusing administrative segregation in this manner are apparent. In this case, Mr. Vermillion had no way of knowing that he was in administrative segregation for suspected involvement with the escape, because he was never notified or charged with anything related to the escape. Under those circumstances, there was no way for him to argue or prove that he was not involved in the escape. Instead, he was placed in disciplinary segregation based on a trafficking charge, for which he was found guilty and ultimately sentenced to 30 days, after his original sentence was reduced to conform with IDOC policy. Mr. Vermillion appealed, and the charges were finally expunged from his record after four rehearings, but regardless of the outcome of the appeal, there was never reason to hold him in segregation for more than 30 days. Nonetheless, after his disciplinary segregation sanction was reduced to 30 days, he was moved to administrative segregation status indefinitely. Once he was there, he had no possible way to contest his placement or work his way out. He was subject to the whims of IDOC officials, and they held him there for more than three years.
The fact pattern in this case is similar to fact patterns that I have seen throughout my career when reviewing administrative segregation cases. The facility suspected wrong doing, subsequently issued a violation, and when the
22

disciplinary sanction was complete (in Mr. Vermillion’s case after being reduced on appeal), IDOC maintained him in administrative segregation status, effectively increasing the segregation sanction without regard to the evidence in the case or due process considerations. As a result, Mr. Vermillion spent more than three years in segregation, ostensibly for a trafficking charge that was ultimately dropped.
Disciplinary segregation and administrative segregation should not be interchangeable. Administrative segregation is not intended to be a punishment for a specific infraction. It should be a hold of necessity based on an inmate’s current condition or status. Mr. Vermillion’s placement on department-wide administrative segregation appears to be based on Mr. Levenhagen and other IDOC administrator’s belief that Mr. Vermillion was involved in the escape, something for which there is no evidence and for which he was never charged. I see no evidence that Mr. Vermillion represented an actual security concern. It is the job of correctional professionals to solve safety and security problems in a manner that is legal, fair, and causes the least amount of harm. If IDOC’s security concerns related to Mr. Vermillion were about trafficking, they had far less harmful, less expensive, and more practical options rather than placing him in indefinite segregation. By moving Mr. Vermillion to a different institution or limiting his ability to work in positions where he wouldn’t be closely monitored, they could have addressed their concerns, caused less harm to Mr. Vermillion, and saved themselves a lot of time and effort.
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The escape at ISP brought to light extensive inmate and staff misconduct. The event was humiliating for Mr. Levenhagen as it surely was for Commissioner Buss. I would concur with Mr. Penfold’s opinion that IDOC administrators wanted their pound of flesh. They were mad at Mr. Vermillion rather than scared of him, and this led to his placement in administrative segregation.
VII. Reviews of Administrative Segregation Status The 2018 Vera Institute of Justice report examining lessons learned from their more than ten years of working on restricted housing reform in jurisdictions throughout the country.20 The report includes several recommendations for administrative segregation. First, they recommend systems minimize placement in administrative segregation and shorten lengths of stays. To accomplish this, they suggest using “procedural safeguards, such as frequent multidisciplinary team reviews to ensure that it is used 1) only as a last resort, when people cannot be housed in the general population because they pose a serious threat to the safety of others; and 2) only when a less-restrictive setting is not sufficient.” They also suggest frequent reviews of this placement by a multidisciplinary team with the goal of returning inmates as soon as possible to a less-restrictive setting. This echoes guidance provided by the U.S. Department of Justice’s in 2016 which stated that administrative segregation (which they call
20 Léon Digard, Elena Vanko, and Sara Sullivan. Rethinking Restrictive Housing: Lessons from Five U.S. Jail and Prison Systems. New York: Vera Institute of Justice, 2018. Available at: https://www.vera.org/publications/rethinking-restrictive-housing
24

preventative segregation) should be used only as a last resort, when “officials conclude, based on evidence, that no other form of housing will ensure the inmate’s safety and the safety of staff, other inmates, and the public.” They also state that this placement “should be guided by clearly articulated procedural protections, including the use of a multidisciplinary review team.21
IDOC Policy 02-01-111, The Use and Operation of Adult Offender Administrative Segregation, requires periodic administrative segregation placements reviews (Section VII), conducted by the Classification Committee or staff designated by the Facility Head. Unfortunately, in practice, these reviews seem to be meaningless as conducted at WCU.
Mr. Vermillion received what IDOC refers to as Thirty Day Segregation Reviews, but these were not conducted by a multidisciplinary team nor did they contain any actual meaningful review or due process. In reviewing the documentation of Mr. Vermillion’s placement reviews while he was in administrative segregation, it is clear that these reviews were perfunctory. These nearly identical one-page forms contain nothing specific regarding Mr. Vermillion other than his name, DOC number, arrival date, and cell location. This is further supported by statements made by Doug Barnes, the former Case Manager of the Westerville Control Unit and the individual that conducted the majority of Mr. Vermillion’s reviews while he was in department-wide administrative segregation. In deposition, Mr. Barnes
21 U.S. DOJ pg. 5
25

was questioned as to the substance of the review process for Mr. Vermillion and department-wide administrative segregation in general. When he was asked the purpose of the 30-day review, he stated:
“I never fully understood. Because unless something had changed externally, the review wasn’t going to change anything.”22
When asked to describe the process he used to perform the reviews he stated: “I would spend a few minutes looking at the roster of the offenders, and then I would use a computer to print out the forms that said they were to review. It was not a review that the offender participated in and there was no special review of the records.”23
Upon further questioning, Mr. Barnes stated that even though a mental health review was required every 30 days, those reviews weren’t factored into their segregation review. Likewise, Mr. Barnes stated that he “rarely saw” and only occasionally looked at the weekly behavioral logs kept by custody staff on the unit when performing a review and that these would not normally factor into what he was reviewing. Mr. Barnes also acknowledged that the thirty-day review forms were prefilled and that although he would occasionally change the form if there were changes in policy, the text did not vary for specific offenders.24Mr. Barnes was also asked if he was familiar with Indiana Statute IC 11-10-1-7, which
22 Barnes deposition pg. 157-158. 23 Id. Pg. 158-159. 24 Id. Pg. 160-163.
26

requires that IDOC conduct a review “at least once every 30 days to determine whether the reason for segregation still exists”. Though he was not familiar with the statute, when asked if he would have been effectuating the law when he did his 30-day reviews, he responded, “That appears to be the case.”25
Sally Nowatzke, Mr. Vermillion’s Caseworker when he was at WCU, was asked in deposition about the annual classification reviews required under IDOC Policy 01-04-101 “Adult Offender Classification” for every inmate, not just those in segregation. She explained how all inmates are assigned a level with 4 being the highest custody or security level and 1 being the lowest and how for any inmate in segregation, if they scored a 1 or a 2, she would apply an automatic override to a level 3 or 4, regardless of their conduct.26 Ms. Nowatzke was asked if she was ever asked to provide input or information for the segregation review required in IDOC Policy #02-01-111, to which she responded no.27 On this issue, Mr. Barnes was asked whether an inmate scoring as a Level 1 in their annual classification review would cause him to recommend that the inmate be removed from administrative segregation and he responded that he would not “because this has nothing to do with the ultimate reason why they were placed on department-wide administrative segregation.” He further states, “unless that reason changes in the mind of the director of adult facilities, they’re going to remain on department-wide segregation.”
25 Barnes deposition pg. 169-170. 26 Nowatzke deposition pg. 144-147. 27 Id. pg. 167.
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In reading the depositions of Mr. Barnes and Ms. Nowatzke, it was clear that they did not take responsibility, in either the classification or the 30-day segregation reviews, to actually assess whether the reason for segregation still existed. Both articulated that placement in department-wide administrative segregation was a decision made above their authority level and that any changes in that placement decision would usually be generated from that authority level. In deposition, Gary Brennan, who served as Unit Manager and supervised the work of Mr. Barnes, stated that he only “periodically”28 looked at the 30-day reviews but acknowledged that he knew Mr. Barnes dropped names in a boilerplate review and didn’t conduct any analysis of individual circumstances.29 He clearly did not ensure that the 30-day or the classification reviews were in done in accordance with the letter and intent of the policy. For Mr. Vermillion, and likely any inmate on DWAS, these reviews were meaningless. Mr. Vermillion’s actual classification level, which should be largely determined by security risk, was always overridden due to his placement designation. Thus, his risk, actual custody level, and conduct, was never factored into his segregation reviews. It wasn’t until 2013, after Mr. Vermillion was moved to Pendleton Correctional Facility, that he received an actual review and was recommended for removal from DWAS.
28 Brennan deposition pg. 222. 29 Id. pg. 222-224
28

Both Mr. Barnes and Ms. Nowatzke were asked if they knew why Mr. Vermillion had been placed on department-wide administrative segregation and both recalled being told that it was because he was involved in the ISP escape.30 This is yet another indicator that Mr. Vermillion was being punished with placement in segregation for an offense that he was never charged with, was unable to defend himself against, and for which he would never receive a real review.
VIII. Conditions of Confinement I toured the Indiana State Prison and saw the honor unit in which Mr. Vermillion had lived prior to his transfer to segregation. In this unit, Mr. Vermillion lived in a large cell and had the ability to earn privileges such as possessing a pet cat. It was designed for inmates whose positive behavior had earned them the right to have greater privileges. Mr. Vermillion’s placement on this unit speaks to his conduct in the facility up until he was placed in segregation for years for the violation that the IDOC ultimately expunged from his record.
I also toured the Westville Control Unit (WCU) where Mr. Vermillion spent the majority of his years in segregation. WCU functions as a super max facility. Inmates in this unit are confined to their cell 23 hours a day with an hour out-ofcell time each day for showering or recreation. WCU was dirty, somewhat in disarray, and inmates could be heard yelling from cell door to cell door on the day of our tour. Access to books, congregate programs, phone calls and other
30 Nowatzke deposition pg. 209, Barnes deposition pg. 110-111.
29

activities is minimal. I find it surprising that given IDOC’s history of being litigated against over super max conditions of confinement and the Human Rights Watch report issued more than two decades ago, that IDOC does not demonstrate more acuity around the condition and management of these units.
In the 2018 Vera report, their other recommendation for improving use of administrative segregation is to increase the availability of productive activities in these settings and to “ease their return to the general population.”31 This would include access to programs, both in-cell and congregate, increasing out-of-cell time and group interaction. Similarly, ASCA’s 2013 Guidelines suggest that systems “provide structured and progressive levels that include increased privileges as an incentive for positive behavior and/or program participation”32
Educational and other programs can help address underlying criminogenic needs, which are the factors that research has found most directly relate to an individual's likelihood to re-offend. Of these, anti-social values, anti-social personality, criminal peers, dysfunctional family, low self-control, substance abuse, and a lack of a prosocial way to occupy one’s time, such as work or school, are the criminogenic needs that if addressed, make the biggest impact on future criminal behavior. These programs provide participants with new skills in order for them to live more productively in general population or when released
31 Vera 2018. Pg. 33. 32 ASCA pg. 2.
30

and they allow an inmate to demonstrate a willingness to change. These programs are even more important in administrative segregation as it is an indefinite placement intended to be used for inmates that pose the highest safety and security risks to the institution. Absent meaningful programs, the facility or system has by default decided that merely residing in segregation for an undefined period of time will correct the deficit that got them there in the first place, in effect, abdicating its responsibility to rehabilitate, a duty made clear in the title “department of correction”.
Congregate activities give inmates a chance to interact with others, reducing isolation and helping to mitigate the negative psychological impacts of segregation. These activities are also necessary for assessing their behavior around others, e.g., do they interact appropriately with the instructors and engage in prosocial practices with their peers in the classroom? Without these opportunities, correctional professionals lack the information they need to adequately assess an inmate’s current abilities and limitations in interacting with other people. In Washington, as in other states, observations about these interactions are an important part of the segregation review process.
Current best practices include use of structured and progressive levels that include increased privileges as an incentive for positive behavior and/or program participation”33 Providing incentives for positive behavior is more effective than
33 Vera pg. 33, ASCA Guidelines, pg. 2.
31

only addressing negative behavior. It appears that the unit in which Mr. Vermillion was housed provides few incentives for positive behavior. Despite a remarkably strong behavioral record, he remained in administrative segregation and, according to Mr. Barnes who conducted his required placement reviews, his behavior was not factored into his continued placement in administrative segregation.
Step-down programming is also viewed as a best practice in segregation management.34 These typically involve a system of review with established criteria to prepare an inmate, either those who have been in segregation for an extended period of time or who cycle through frequently, for transition to the general population or to the community. Through a gradual lifting of restrictions and increased time with others, these inmates are better prepared to selfmanage in general population. These programs often involve a multidisciplinary review team that includes mental health, case management, and security practitioners. This team coordinates behavior response and sets transition goals as it assesses progress. These programs, usually located in specific housing units, are typically designed with the assumption that the transitioning inmates were in segregation due to a lack of ability to self-manage or cope in general population. IDOC’s two super-max facilities have a step-down program available to some inmates called ACT.35 For reasons I could not ascertain in the
34 Vera pg. 33, ASCA-Liman 2018, pg. 63 35 IDOC Executive Directive #09-48
32

documents provided to me and were not known to the facility staff questioned about this in deposition, Mr. Vermillion was not approved to participate in ACT despite having requested to attend and meeting the requirements for participation.
From all available documentation, Mr. Vermillion’s placement in administrative segregation was based on a belief by IDOC administrators that he was involved in the 2009 escape at ISP. His behavior while institutionalized was never violent and IDOC’s own custody tool assessed Mr. Vermillion as being appropriate for a medium security setting. The fact that IDOC administrators did not even attempt to offer him programs, increased congregant time out-of-cell, or participation in the step-down program, even if pretextual, makes clear that their intentions were never rehabilitative. Mr. Vermillion’s placement in department-wide administrative segregation was an indefinite punishment for an offense he was never charged with rather than for security purposes.
IV. Conclusion: There was no legitimate penological purpose for holding Jay Vermillion in department-wide administrative segregation for any length of time, much less three years. His disciplinary record in no way justified his placement here. If in fact IDOC administrators were concerned that Mr. Vermillion was involved in trafficking in contraband, in addition to imposing the maximum 30-day segregation period allowable under IDOC disciplinary rules, there are common
33

sense precautions they could have been taken such as moving him to another facility and restricting him from obtaining employment in areas that have low staffing levels or sensitive materials. These are follow-up actions that would have mitigated potential risks without subjecting Mr. Vermillion to years of extreme isolation.
The fact pattern in this case is not dissimilar from fact patterns that I have seen in reviewing administrative segregation cases throughout my career. The facility staff suspected wrong doing, issued a violation on Mr. Vermillion, and when the sanction was reduced, IDOC administrators maintained him in administrative segregation status, effectively administering a longer sanction without regard to the evidence of the case or due process. Even more alarming, his segregation placement appears to be a punitive response to IDOC administrators’ belief that Mr. Vermillion was guilty of assisting in an escape, an offense for which he was never charged.
After reviewing the documents in this case, I have no doubt that Mr. Vermillion’s extended placement in administrative segregation, which lacked any meaningful review or penological justification, was a way to sidestep the established disciplinary process. His three-year stay in segregation for a perceived offense for which there was no proof and for which he was not charged that was extremely excessive, especially in light of the stark conditions and lack of congregant activities or programming at WCU. From the information I have
34

reviewed, I conclude that IDOC’s placement of Mr. Vermillion in department-wide administrative segregation was an action taken to accomplish one thing- to retaliate against and to punish Mr. Vermillion.

3/31/19

_________________ __________________

Dan Pacholke

Date

35

ATTACHMENT 1

Attachment 1
DAN PACHOLKE
PROFILE
Served the Washington State Department of Corrections for 33 years, starting as a Correctional Officer and retiring as Secretary. Leader in segregation reform and violence reduction in prisons. Extensive experience in program development and implementation, facility management, and marshaling and allocating resources. Proven ability to make change. Led efforts resulting in a 30% reduction in violence and a 52% reduction in use of segregation in Washington State Prisons. Co-founder of Sustainability in Prisons Project. Champion of humanity, hope and legitimacy in corrections.
EMPLOYMENT HISTORY
Principal, Dan Pacholke Consulting, LLC. 2018 to Present Offering a full range of consulting services in the field of corrections.
New York University, Litmus at Marron Institute of Urban Management Associate Director 2016-2017
Collaborate with researchers and practitioners to develop alternatives to segregation and transform corrections management. Advance stakeholder-led research and innovation by soliciting, supporting, and disseminating the best new strategies to create safer, more rehabilitative corrections environments.
Washington State Department of Corrections Secretary 2015-2016
Governor appointee providing executive oversight of the agency with a yearly operating budget of 850 million and 8,200 full time employees. Reorganized agency to allow for greater emphasis on effective reentry. Led department through response and recovery from a crisis resulting from the discovery of a sentencing calculation error that had occurred for over 13 years.
Deputy Secretary 2014-2015 Oversight over operations divisions: Offender Change; Correctional Industries; Community Corrections (16 Work Releases and 150 field offices); Prisons (15 facilities); and Health Services. These combined operations had a yearly operating budget of 700 million and 7,166 full time employees. Emphasis on core correctional operations, violence reduction, and performance management leadership to affect positive and sustainable system wide change.
Director, Prisons Division 2011-2014 Oversight over 15 institutions and contract relationships with jails and out of state institutions incarcerating approximately 18,000 offenders. Also responsible for providing emergency response and readiness oversight to all facilities and field offices of all divisions. Advanced multi-faceted violence reduction strategy to include the development and implementation of the “Operation Ceasefire” group violence reduction strategy for application in close custody units in prisons. Expanded Sustainability in Prisons Project programs to all prison facilities. Implemented classroom-setting congregant programming in intensive management units.
Deputy Director, Prisons Division 2008-2011 Administrator over 6 major facility prisons, multi-custody level for adult male offenders
1

Attachment 1
with a biennial budget of 290 million. Provided leadership and appointing authority decision making to six facility Superintendents. Through Great Recession implemented staffing reductions, offender movement alterations and cost savings initiatives while maintaining safety and security. Represented the Department in legal issues, labor relations, media, staff discipline hearings, union relations and bargaining. Oversaw statewide operations of Emergency Preparedness and Response, Intelligence & Investigations, Intensive Management Units, Offender Grievance Program, Offender Disciplinary Program, Food Service, Sustainability and Close Custody Operations. Implemented statewide system of security advisory councils and security forums to improve staff safety.
Monroe Correctional Complex Interim Superintendent 2008
Led a 2,486-bed, multi-custody facility for adult male offenders.
Stafford Creek Corrections Center Superintendent 2007-2008
Led a 2,000-bed, multi-custody facility for adult male offenders with a biennial budget of 39 million. Implemented Sustainability in Prisons Project initiatives to include large scale composting to include zero-waste garbage sorting. Initiated first dog training programs for male offenders.
Cedar Creek Corrections Center Superintendent 2003-2007
Led a 400-bed, minimum-security adult male correctional facility, with a biennial budget of 7.3 million. Directed operational and related program activities to include security and custody programs, medical services, plant maintenance, education, and food service. Co-founded the Sustainability in Prisons Project with Nalini Nadkarni, PhD.
Monroe Correctional Complex Special Assignment Deputy Superintendent 2002
Formulated new strategic direction in order to enhance operations and security at the Complex, which consists of four separate units and houses approximately 2,300 adult male felons. Managed unit operations and security. Supervised the Intelligence Investigative Unit and Offender Grievance System. Developed and implemented capital construction initiatives at the Special Offender Unit and the Washington Reformatory Unit to enhance security of these Units.
Headquarters Performance System Administrator 1999-2002
Led the development and implementation shift from staff training department to an organizational performance system. Administered staff performance academies, supervised five regional teams, four Program Managers and provided leadership for policy development to support this department wide program. Administered the Department’s Emergency Response Plan, Emergency Operations, Officer Safety Program and Firearms Training Unit.
Headquarters Emergency Response Manager 1995-1999
Developed and implemented statewide emergency response system. Directed the development of departmental policy, emergency response team academies and response protocols. Managed emergencies and security events. Directed Critical Incident Review Teams in the post incident analysis of critical incidents department wide. Led
2

Attachment 1 development of security plans for the management of high-risk operations to include 400 offenders out of state, Y2K, and execution security.
Clallam Bay Corrections Center Correctional Captain 1989-1995
Responsible for the security management of a maximum, close, and medium custody male facility. Oversaw facility mission changes including: close custody conversion; implementation of blind feeding; facility double bunking; opening of an intensive management unit; opening of first direct supervision unit; and developed the facility’s Emergency Response Plan.
Clallam Bay Corrections Center Correctional Lieutenant 1986 -1989
Washington Corrections Center Correctional Sergeant 1985-1986
McNeil Island Corrections Center Correctional Officer 1982-1985
PUBLICATIONS Useem, Bert, Dan Pacholke, and Sandy Felkey Mullins. "Case Study–The Making of an Institutional Crisis: The Mass Release of Inmates by a Correctional Agency." Journal of Contingencies and Crisis Management (2016) Pacholke, Dan (2016, July 27). Change is relative to where you begin. Vera Institute of Justice. Think Justice Blog. https://www.vera.org/blog/addressing-the-overuse-of-segregation-in-u-sprisons-and-jails/change-is-relative-to-where-you-begin
Pacholke, Dan and Sandy Felkey Mullins. More Than Emptying Beds: A Systems Approach to Segregation Reform. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, 2016. NCJ 249858.
Pacholke, D. (2014, March). Dan Pacholke: How prisons can help inmates lead meaningful lives [Video file]. Retrieved from https://www.ted.com/talks/dan_pacholke_how_prisons_can_help_inmates_live_meaningful_lives?la nguage=en
Young, C., Dan Pacholke, Devon Schrum, and Philip Young. Keeping Prisons Safe: Transforming the Corrections Workplace. 2014.
Aubrey, D., LeRoy, C. J., Nadkarni, N., Pacholke, D. J., & Bush, K. Rearing endangered butterflies in prison: Incarcerated women as collaborating conservation partners. 2012.
AWARDS
Olympia Rotary Club, Environmental Protection Award, 2013 Governor’s Distinguished Managers Award, 2012 Secretary of State, Extra Mile Award, 2007 Governor’s Sustaining Leadership Award, 2003
CONSULTING
3

Attachment 1 Sustainability in Prisons Project, Co-Director 2004-2015 Nebraska Department of Correctional Services 2015
With Bert Useem, PhD, provided system assessment following May 2015 disturbance at Tecumseh State Correctional Institution in which two inmates were killed. Identified underlying causal factors and provided recommendations. National Institute of Corrections 1998 to 2002 Provided training and consultation services to state, territory and federal correctional systems. Responsible for delivering of training to include: Management of Security, Entry Level Supervision, Emergency Preparedness Assessment, Disturbance Management and Basic Security. Defensive Technology Corporation Senior Instructor 1995 to 1998 Provided tactical and specialty munitions training to correctional and law enforcement personnel throughout the U.S. Security Auditing & Critical Incident Reviews Lead Auditor Completed security audits and critical incident fact finding reviews in facilities throughout the Washington State Department of Corrections and two correctional jurisdictions in other states, one of which involved multi-jurisdictional entities.
EDUCATION: The Evergreen State College, BA, Olympia, Washington
4

ATTACHMENT 2

Attachment 2
PUBLICATIONS by Dan Pacholke Useem, Bert., Pacholke, Dan., Mullins, Sandy Felkey. The Making of an Institutional Crisis: The Mass Release of Inmates by a Correctional Agency. (2016) Pacholke, Dan (2016, July 27). Change is relative to where you begin. Vera Institute of Justice. Think Justice Blog. https://www.vera.org/blog/addressing-the-overuse-ofsegregation-in-u-s-prisons-and-jails/change-is-relative-to-where-you-begin Pacholke, Dan and Sandy Felkey Mullins. More Than Emptying Beds: A Systems Approach to Segregation Reform. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, 2016. NCJ 249858. Pacholke, D. (2014, March). Dan Pacholke: How prisons can help inmates lead meaningful lives. https://www.ted.com/talks/dan_pacholke_how_prisons_can_help_inmates_live_meaning ful_lives?language=en Young, C., Dan Pacholke, Devon Schrum, and Philip Young. Keeping Prisons Safe: Transforming the Corrections Workplace. 2014. Aubrey, D., LeRoy, C. J., Nadkarni, N., Pacholke, D. J., & Bush, K. Rearing endangered butterflies in prison: Incarcerated women as collaborating conservation partners. 2012.
1

ATTACHMENT 3

Attachment 3
Career Highlights
• Reduced violence in Washington State prison system by over 30% while also reducing the number of people held in long-term administrative segregation by over 50%.
• Designed and implemented congregate group programming in the intensive management units (IMU’s). The programs offered included evidence based programs and other complimentary offerings. Today all IMU’s in Washington State prisons offer congregate programming.
• Designed and implemented the first prison Ceasefire model. This deterrencebased model reduced serious violent incidents (assault against staff, use of a weapon and multi on single man fights) by 50% and continues to be utilized in Washington State close custody (Level IV) prison to reduce serious violence.
• Co-authored a protocol for in-custody Swift, Certain and Fair sanctioning. This deterrence-based model offers a strategy for the reduction of low-level in-custody violations.
• Implemented the Correctional Officer Pre-Service training model at Clallam Bay Corrections Center. This 10-week program offered half-time course work and half-time OJT in order to certify newly hired correctional officers. This program was implemented state wide as the CORE Program, a six-week standardized training required of all staff that work in prisons.
• Served as a lead design team member on the creation and implementation of the Correctional Officer Achievement Program (COACH), a yearlong, on-the-job training program accredited by the WA State Board for Technical and Community Colleges.
• Led the design and development of a comprehensive agency-wide Emergency Response Plan and complimentary learning academies: Emergency Response Instructor (40 hrs.); Emergency Response Team (40 hrs.); Special Emergency Response Team (40 hrs.); Crisis Negotiator (40 hrs.); Joint Operations (24 hrs.); and the Designated Incident Management Team (multiple ICS certifications).
• Co-Authored, Keeping Prisons Safe, Transforming the Corrections Workplace and accompanying field guide which are used in CORE and Annual In-Service Training at WA DOC.
• Co-founder and past co-director of the Sustainability In Prisons Project; this program brings nature into prison and features science education. It is recognized internationally and features programs to restore endangered species e.g., Oregon Spotted Frog, Taylor Checker spot Butterfly, Indigenous Box Turtles and over fifty different rare and endangered native prairie plants. http://sustainabilityinprisons.org.
• Offered two TEDx events in prison. These events featured inmates, staff and volunteers as TEDx speakers.

Attachment 3
• Implemented Dog retraining programs in all Washington State Prisons.

ATTACHMENT 4

Documents Reviewed Attachment 4

The following documents were reviewed in preparing this report:

Item Description

1.

Jay F. Vermillion v. Willard Plank, et al., Case No. 1:15-CV-605-RLY-

DKL. Southern District Court, Southern District of Indiana, Indianapolis

Division. Plaintiff’s Third Amended Compliant Under Title 42 U.S.C

1983

2.

Jay F. Vermillion v. Mark E. Levenhagen, Sally Nowatzke, Brett Mize,

Howard Morton, Gary Brennan, Williard Plank, Dawn Buss, Charles

Whelan, Ralph Carrasco., Case No. 1:15:cv-00605-RLY-TAB. United

States District Court, Southern District of Indiana, Indianapolis Division.

Entry Discussing Partial Motion for Summary Judgment.

3.

Jay F. Vermillion v. William Plank, et al., Case No. 1:15-CV-605-RLY-

DKL. United States District Court, Southern District of Indiana,

Indianapolis Division. Plaintiff’s Declaration in Opposition to The

Defendants Partial Motion for Summary Judgment.

4.

Jay F. Vermillion v. Mark E. Levenhagen, Superintendent, Sally

Nowatzke, Case Counselor, Brett Mize, Director of OP IDOC, Howard

Morton, Admin Asst ISP, Gary Brennan, Director of OP WCU, Williard

Plank, Dawn Buss, Charles Whelan, Ralph Carrasco. 1:15:cv-00605-

RLY-DKL. United States District Court, Southern District of Indiana,

Indianapolis Division. Defendant’s First Request for Production of

Documents to Plaintiff.

5.

Jay F. Vermillion v. Mark E. Levenhagen, Superintendent, Sally

Nowatzke, Case Counselor, Brett Mize, Director of OP IDOC, Howard

Morton, Admin Asst ISP, Gary Brennan, Director of OP WCU, Williard

Plank, Dawn Buss, Charles Whelan, Ralph Carrasco. 1:15:cv-00605-

RLY-DKL. United States District Court, Southern District of Indiana,

Indianapolis Division. Defendants’ First Set of Interrogatories to

Plaintiff.

6.

Jay F. Vermillion v. Mark E. Levenhagen. Case No. 1:15-cv-605-RLY-

TAB. United States District Court, Southern District of Indiana,

Indianapolis Division. Stipulated Protective Order.

7.

In the Matter Of: Jay F. Vermillion v. Mark E. Levenhagen,

Superintendent, ET AL. Deposition of Jay F. Vermillion. March 16,

2017.

8.

Jay F. Vermillion v. Mark E. Levenhagen. Case No. 1:15-cv-605-RLY-

TAB. United States District Court, Southern District of Indiana,

Indianapolis Division. Declaration of Charles Whelan.

9.

State of Indiana, Segregation/Confinement Report. Offender Vermillion

973683. Dated 7/29/09.

10. Incident Report. Offender Vermillion 973683. Dated 7/29/09. Offense

Trafficking.

11. Disciplinary Hearing Form. Offender Vermillion 973683. Dated 8/6/09.

Documents Reviewed Attachment 4
12. State of Indiana, Department of Corrections Executive Order # 09-07. Dated January 21, 2009.
13. Letter to Jay F. Vermillion from C.A. Penfold, Final Reviewing Authority, Operational Support Division. RE: CAB Appeal, Case # ISP09-080006. Dated October 8, 2009.
14. Report of Classification Hearing. Offender Vermillion 973683. Classification Committee: Recommendation and Basis: Placed on Department Wide Administrative Segregation Per B. Mize. Date Signed 10/22/09.
15. Letter to Jay F. Vermillion from C.A. Penfold, Final Reviewing Authority, Operational Support Division. RE: CAB Appeal, Case # ISP09-080006. Disciplinary Hearing remanded back to the facility for a rehearing. Dated August 31, 2010.
16. Letter to Jay F. Vermillion from C.A. Penfold, Final Reviewing Authority, Operational Support Division. RE: CAB Appeal, Case # ISP09-080006. Rehearing denied. Dated February 23, 2011.
17. Letter to Jay F. Vermillion from C.A. Penfold, Final Reviewing Authority, Operational Support Division. RE: CAB Appeal, Case # ISP09-080006. Disciplinary Hearing remanded back to the facility for a rehearing. Dated June 27, 2011.
18. Letter to Jay F. Vermillion from Michael Barnes, Legal Services Division. RE: Case # ISP09-08-0006. Appeal Denied. Dated January 12, 2012.
19. Letter to Jay F. Vermillion from Robert D. Bugher, Legal Services Division. RE: DHO Appeal Case # ISP09-08-0006. Matter set for rehearing. Dated November 14, 2013.
20. Report of Disciplinary Hearing. Offender Vermillion, Jay 973683. Case number ISP09-08-0006. Date of Hearing 2/13/14. Decision: Dismissed.
21. E-mail chain. From Rinehart, Jennifer to Scaife Jacqueline. Subject: Vermillion #973683.
22. Transfer Authority Form. Offender Vermillion, Jay 973683 dated 8/12/09.
23. Indiana State Prison 7 Day Administrative Hold Review. Review date 8/12/09. Inmate Vermillion Jay 973683. Decision: Continued assignment to Administrative Hold (Pre Segregation) Status.
24. Segregation Confinement Report. Offender Vermillion 973683. Dated 7/29/09
25. Report of Classification Hearing. Name: Vermillion, Jay 973683 dated 9/31/09.
26. Transfer Authority Form. Offender Vermillion, Jay 973683 dated 10/8/2009. Decision: WCU (D/S) to WCU (A/S).
27. Screen Print. Classification Designation. Dated 10/22/09. Offender Vermillion, Jay F. 973683
28. Classification Appeal. Name of Offender: Vermillion Jay F. 973683. Dated 11/6/09.
29. Executive Directive #09-48

Documents Reviewed Attachment 4
30. Indiana Department of Corrections Policy and Administrative Procedure 02-04-102 Dated 1/1/2018 Disciplinary Restrictive Status Housing
31. Indiana Department of Corrections Policy and Administrative Procedure 02-04-101 Dated 6/1/2015 The Disciplinary Code for Adult Offenders
32. Indiana Department of Corrections Policy and Administrative Procedure 02-01-111 Dated 9/1/2008 The Use and Operation of Adult Offender Administrative Segregation
33. Location and Bed History – July 1, 2009 to present 34. Deposition of Charles Penfold 35. Deposition of Jennifer Rinehart 36. Facility Packet #3 Section 4 004984-005041 37. Facility Packet #3 Section 5 005232-005361 38. Facility Packet #2 Section 6 004606-004749 39. Facility Packet #3 Section 6 005378-005433 40. Facility Packet #2 Section 5 004449-004605 41. Facility Packet #1 Excess Conduct 003908-003955 42. Facility Packet #2 Section 6 004606-004749 43. Facility Packet #3 Confidential Section 004759-004852 44. Facility Packet #2 Section 4 004373-004448 45. DHB Case File from Hearing 02-13-14 000009-000020 46. Facility Packet #2 Section 3 004323-004372 47. Conduct Summary July 1, 2009 to present 003902-003904 48. Report of Classification and Hearing Documents 49. Facility Packet #1 Excess Correspondence 003956-004117 50. Facility Packet #2 Confidential Section 004118-004290 51. Facility Packet #2 Section 1 004291-004313 52. Facility Packet #2 Section 2 004314-004322 53. Indiana State Prison 7 Day Administrative Hold Review(s) 54. Facility Packet #3 Section 1 004855-004892 55. Facility Packet #3 Section 3 004696-004983 56. Facility Packet #3 Section 2 004893-004940 57. Deposition of Andrew Berglund 58. Deposition of Douglas Barnes 59. Deposition of Sally Nowatzke 60. Deposition of Charles Penfold 61. Deposition of Doug Barnes 62. Deposition of Hubert Duncan 63. Deposition of Mark Levenhagen 64. Escape Report Case File 09-ISP-0175 65. Trafficking Case File 09-ISP-0186 66. Deposition of Brett Mize 67. Deposition of Gary Wayne Brennan

ATTACHMENT 5

Supplemental Information: Dan Pacholke
Compensation:
• $200.00 dollars an hour for research, report writing, and all associated casework. $100.00 dollars an hour for travel and $300.00 dollars an hour for courtroom testimony and depositions.
Expert Work: Required a Deposition or Courtroom Testimony.
• Gregory Strange v. The District of Columbia (Civil No. 2016 CA 001250 B. Superior Court of the District of Columbia Civil Division)--Deposition
• Deon Hampton v. Jacqueline Lashbrook, et al (Civil No. 3:17-cv-00936DRH. United States District Court for the Southern District of Illinois)— Courtroom Testimony, twice.
• Darrick Hall v. John Wetzel, et al (Civil No. 17-CV-4738 United States District Court for the Eastern District of Pennsylvania)—Courtroom Testimony
• Fransisca Flores as the Personal Representative of the Estate of Lino Flores v. Stephen Morris, et al (No. 16-02756 (D.AZ) In the United States District Court for the District of Arizona)—Deposition
• Terry White v. William Stephens, et al (Case No. A16CV059 In the United States District Court for the Western District of Texas, Austin Division) – Courtroom Testimony
• Imhotep H’Shaka v. James O’Gorman, et al (Case No. 9:17-cv-00108GTS-ATB In the United States District Court Northern District of New York) – Deposition 3/2019

 
 Case 1:15-cv-00605-RLY-TAB Document 312 Filed 06/21/19 Page 1 of 34 PageID #: 1850

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

)

JAY F. VERMILLION,

)

Plaintiff,

)

)

v.

) Civil Action No. 1:15-cv-605-RLY-TAB

)

MARK E. LEVENHAGEN,

)

Superintendent, et al.,

)

)

Defendants.

)

)

BRIEF IN SUPPORT OF PLAINTIFF’S MOTION TO EXCLUDE EXPERT WITNESS ROBERT MORGAN FROM TESTIFYING
Plaintiff Jay Vermillion is seeking justice for four years of forced, isolated confinement in the Indiana Department of Corrections. Supporting his case is planned expert testimony from two highly respected authorities on solitary confinement. These experts, Terry Kupers, M.D., and Dan Pacholke, will opine as to the mental and physical toll solitary conditions exact on prisoners and the more humane alternatives Defendants ought to have employed.
Defendants tender Robert Morgan, Ph.D., to rebut this testimony. See Morgan Report (Ex. 1). Dr. Morgan did not evaluate Mr. Vermillion. He has never stepped foot in an Indiana prison. He espouses an outlier view that minimizes the harms of solitary confinement and relies on a thoroughly discredited “meta-analysis” ignoring decades of research. His methods interpreting the meta-analysis are fatally unsound. Dr. Morgan’s testimony will serve only to mislead the jury with a false veneer of objectivity. Accordingly, Mr. Vermillion asks the court to bar the testimony in its entirety.

Case 1:15-cv-00605-RLY-TAB Document 312 Filed 06/21/19 Page 2 of 34 PageID #: 1851
I. BACKGROUND A. Dr. Morgan’s Limited Experience Studying and Assessing the Effects of
Solitary Confinement Dr. Morgan holds a doctoral degree in counseling psychology from Oklahoma State University. Morgan Dep. (Ex. 4) at 11:12–15. He is a professor at Texas Tech University and supervises students providing substance use and mental health services to probationers. Id. at 10:22–25; 36:23–17. Dr. Morgan also directs the Forensic Science Institute at Texas Tech. Id. at 121:16–19. Much of his forensic practice is evaluating the competency of criminal defendants to stand trial and assessing criminal responsibility. Id. at 41:16–42:23; Ex. 1 at 4. Dr. Morgan cites “20 years of providing correctional and forensic services to inmates and criminal defendants,” Ex. 1 at 3, but very little experience assessing the risk of solitary confinement on prisoners. The “20 years” includes a 10-year stint at the Lubbock Mental Health Retardation Center, where he developed a jail-based competency restoration program, as well as approximately 1000 forensic examinations related to criminal responsibility and competency to stand trial. Id. at 4; Ex. 4 at 42:15–43:12. It also includes work with a school district on jail reentry programs. Ex. 1 at 4. Dr. Morgan’s experience providing mental health services in segregation units is minimal and temporally remote. In the early 1990’s, he completed a ten-week internship under the supervision of a psychologist at the US Penitentiary in Leavenworth. Ex. 1 at 3; Ex. 4 at 44:1– 11. He did not serve prisoners in segregation. Ex. 4 at 44:12–15. He then worked as an unlicensed mental health professional at one maximum-security prison in Kansas for approximately 18 months. Ex. 1 at 3; Ex. 4 at 44:16–46:11. There his duties extended to a segregation unit with an average length of stay of 30–60 days for disciplinary segregation and one year for administrative segregation. Ex. 4 at 46:12–17; 49:3–17; 50:19–22. He sometimes
2

Case 1:15-cv-00605-RLY-TAB Document 312 Filed 06/21/19 Page 3 of 34 PageID #: 1852
provided back-up coverage to a segregation unit with an average length of stay of two to three years. Id. at 49:18–20; 50:19–51:4. He spent six months at a minimum-security facility, where the average length of stay in segregation was two-to-three days. Id. at 51:5–14. He completed a pre-doctoral internship at a federal prison from 1998–1999. Ex. 1 at 2; Ex. 4 at 51:15–25. Exposure to solitary confinement during his internship was limited to a four-month rotation during which he performed mental health rounds in a segregation unit one day a week. Ex. 4 at 52:1–53:13.
Dr. Morgan’s other correctional experience is his work consulting for a private company that contracts to provide mental health services to prisons, and consulting on litigation. Id. at 54:18–55:7; 57:18–58:1. He cites involvement (for the defense) on cases challenging the practice of solitary confinement in California, Canada, and Alabama. Id. at 57:18–58:1. In Alabama, Dr. Morgan toured prisons but did not assess any prisoners. Id. at 57:24. No federal court has qualified Dr. Morgan to testify as an expert witness. And as will be discussed, courts have been sharply critical of Dr. Morgan’s work.1 Despite Dr. Morgan’s involvement in the Canada litigation, a Canada Court of Appeals deemed solitary confinement unconstitutional and barred it after 15 days. Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243 (2019) (excerpts attached as Ex. 7) at ¶ 150.
Dr. Morgan’s scholarly work only recently has turned to the topic of solitary confinement. His curriculum vitae categorizes 82 publications as peer-reviewed, of which three pertain to solitary confinement. Morgan CV (Ex. 2) at 2–9; Ex. 4 at 13:13–14:2. The most
1 See Brazeau v. Attorney General (Canada), 2019 ONSC 1888 (2019) (“I do not give much weight to Dr. Morgan’s meta-analysis conclusions”) (excerpts attached as Ex. 5) ¶ 182; Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491 (2017) (excerpts attached as Ex. 6) ¶¶ 94–95 (“I do not accept Dr. Morgan’s evidence that some [prisoners] will be harmed, and a significant number will not.”; “I specifically do not accept his evidence for concluding that some inmates will experience no serious permanent negative mental health effects from prolonged administrative segregation.”).
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recent of the three, a 2018 study in Kansas prisons, was a student project that he supervised. Ex. 4 at 14:6–13; 191:19–18. Dr. Morgan is listed fourth out of the four authors on that study. Ex. 2 at 3. The second, entitled, “Questioning solitary confinement: Is administrative segregation as bad as alleged?” appeared in Corrections Today. Ex. 4 at 14:14–19; Robert D. Morgan et al., Questioning Solitary Confinement: Is Administrative Segregation As Bad As Alleged?, CORRECTIONS TODAY (September/ October 2017) (attached as Ex. 8). Corrections Today is the magazine for the American Correctional Association. Ex. 4 at 14:20–22. Although Dr. Morgan categorized this article as “peer-reviewed,” publication in Corrections Today is not decided by research psychologists and psychiatrists, but by those in the corrections industry. Ex. 4 at 14:23– 15:6. Moreover, Dr. Morgan’s article appeared in a section of the magazine called “Speak Out,” which is an opinion column. See Questioning Solitary (Ex. 8) at 1; Corrections Today, AMERICAN CORRECTIONAL ASSOCIATION (attached as Ex. 9) at 4.2
Dr. Morgan’s signature research on solitary confinement is a 2016 meta-analysis purporting to quantify the harms of solitary confinement. See Ex. 1 at 9–10; Ex. 4 at 19:11–17. The meta-analytic study includes two meta-analyses, Research Synthesis 1, directed by a Canadian researcher, and Research Synthesis 2, directed by Dr. Morgan. Ex. 4 at 156:8–23; see generally Robert D. Morgan et al., Quantitative Syntheses of the Effects of Administrative Segregation on Inmates’ Well-Being, PSYCHOL., PUB. POL’Y & L. (Aug. 2016) (attached as Ex. 10) at 4. The meta-analytic study disregarded decades of respected research in favor of a small number of studies that do not represent the body of work on this topic. The reliability of Dr. Morgan’s meta-analysis has been heavily criticized, and at least one court has rejected it. See Brazeau v. Attorney General (Canada), 2019 ONSC 1888 (2019) (excerpts attached as Ex. 5) at
2 Available at http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Publications/Corrections_Today_Magazine/ ACA_Member/Publications/CT_Magazine/CorrectionsToday_Home.aspx (last visited June 20, 2019).
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¶ 182 (“I do not give much weight to Dr. Morgan’s meta-analysis conclusions.”); Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 CRIME AND JUSTICE 365 (Jan. 2018) (attached as Ex. 11) at 398 et seq.
Dr. Morgan also cites his receipt of funding to conduct research in the field of corrections as evidence of his qualifications. Ex. 1 at 2–3. But he has received no funding to research the effects of solitary confinement. Ex. 4 at 34:7–16. In fact, the National Institute of Justice rejected his grant proposal to perform a longitudinal study of the consequences of solitary confinement after a peer-review committee identified methodological concerns with his proposed study. Id. at 34:13–36:22.
B. Dr. Morgan’s Methods in this Case The bulk of Mr. Vermillion’s 1,513 days of isolation occurred on Department-Wide Administrative Segregation status in the Westville Control Unit (WCU). Both Dr. Kupers and Mr. Pacholke toured the WCU to study its layout, operations, and atmosphere. The WCU is a stand-alone facility within the Westville Correctional Complex of 224 solitary beds divided among four separate pods. Its features breed solitude. A Human Rights Watch Report described the WCU’s solid steel, boxcar doors as “effectively cut[ting] inmates off from the world outside the cell, muffling sound and severely restricting visual stimulus.” Human Rights Watch, Cold Storage: Super-Maximum Security Confinement in Indiana at 15 (Oct. 1997). The sole area for “outdoor” recreation in the WCU is a small, walled-in enclosure with a patch of sky. Human Rights Watch described the sensation of standing within it as “akin to being at the bottom of a well.” Id. at 17. Dr. Morgan did not join the view scheduled for the Plaintiff’s experts, nor did he visit the WCU (or any Indiana facility) to inform his opinions. Ex. 4 at 81:13–19. In his deposition, Dr.
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Morgan was not even able to provide the name of the facility where Mr. Vermillion was in solitary confinement, id. at 85:15–18, much less ground his opinion in knowledge of that facility’s unique characteristics, id. at 85:20–86:23.
Nor did Dr. Morgan examine Mr. Vermillion. Id. at 83:14–15. Dr. Morgan had no explanation for why he did not examine Mr. Vermillion, other than that there was insufficient time. Id. at 83:19–20. Defense counsel never reached out to Plaintiff’s counsel to ask whether Mr. Vermillion could be made available for an in-person evaluation by Dr. Morgan. Instead, Dr. Morgan limited his investigation in this case to document review. Id. at 81:6–12.
C. Dr. Morgan’s Proposed Testimony Dr. Morgan offers three overarching opinions. First, Dr. Morgan seeks to criticize Dr. Kupers’ findings regarding the effects of solitary confinement on Mr. Vermillion. Ex. 1 at 5. Second, Dr. Morgan plans to opine that the serious risks of psychological harm from solitary confinement, as described by Dr. Kupers and Mr. Pacholke, are not universally experienced. He intends to tell the jury that on average, solitary confinement produces mild to moderate health effects as compared to the general population, with some people experiencing negative effects, some experiencing no negative effects, and some improving. Id. Third, Dr. Morgan intends to testify that Mr. Pacholke’s discussion of correctional industry standards is incorrect. Id.
II. LEGAL STANDARD Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert opinions, provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an
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opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. The district court plays the role of gatekeeper by examining: (1) the proposed expert’s qualifications; (2) the reliability of her methodology; and (3) the relevance of her testimony. Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017). Rule 702 requires the Court to ensure that expert evidence “is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). The reliability requirement serves to distinguish a well-grounded expert opinion, which is admissible, from “subjective belief,” which is not. Id. at 590. The purpose of this gatekeeping is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 157, 137 (1999). “[N]othing . . . requires a district court to admit opinion evidence” that rests solely on “the ipse dixit of the expert.” Id. at 157. The Court has “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Id. at 152. Courts consider the proposed expert’s full range of experience and training in the subject area, as well as the methodology used to arrive at a particular conclusion. Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). In addition to being reliable, expert testimony must “assist the trier of fact to understand the evidence or determine a fact at issue.” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). The burden of admission rests with the proponent of the expert testimony. Id.
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III. ARGUMENT A. Dr. Morgan Is Not An Appropriately Qualified Expert. Dr. Morgan’s published and peer-reviewed scholarship on solitary confinement consists of one meta-analytic study summarizing research performed by others, and one student project he supervised.3 Ex. 2 at 2–9; Ex. 4 at 13:13–14:2; 14:6–13; 19:11–20; 191:19–93:2. When he applied to the National Institute of Justice to fund his own research into the effects of solitary confinement, peer reviewers rejected it for methodological concerns, the specifics of which he claimed not to remember at his deposition. Ex. 4 at 34:13–36:22. His clinical experience in prison is more than 20 years old and consists primarily of two years working in segregation units with prisoners there for periods far shorter than is relevant here. Id. at 44:16–51:14. Since receiving his doctorate degree, Dr. Morgan’s principal activities as a practicing psychologist have not involved prisoners in solitary confinement. He worked for a decade at the Lubbock Regional Mental Health Mental Retardation Center, and he now supervises students working with probationers. Id. at 43:5–12; 36:23–37:17. He has a significant practice performing competency examinations in criminal justice matters, and he at times consults for a private prison contractor. Id. at 41:16–42:3; 39:13–17. He has also consulted for a private company providing psychological services for the Dallas Cowboys at the NFL Combine. Id. at 43:12–17. He has not examined Mr. Vermillion, has not toured the WCU, and has no familiarity with the

3 Dr. Morgan could not recall basic details of the 2018 Chadick study, i.e., whether it included the segregation units he worked at in the early 1990s:

Q:

And did the study evaluate prisoners in some of the same segregation

units that you yourself had worked in when you were a mental health

professional in Kansas?

A:

That I don’t know. That’s aI never thought of that. That’s aI

don’t know. I’d have to ask the lead author.

Ex. 4 at 192:22–93:2.
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Indiana Department of Corrections. Id. at 81:13–82:7. He could not even recall the name of the segregation unit where Mr. Vermillion was held. Id. at 85:15–19. He is not an expert on solitary confinement and should not be qualified as one.
B. Without Examining Mr. Vermillion, Dr. Morgan’s Opinions Regarding His Mental Health Are Fatally Unsupported.
Like any expert, mental health professionals must root their opinions in adequate knowledge of the subject as to which they will testify. See, e.g., Ancho v. Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998) (holding that a district court properly excluded an expert witness because, among other reasons, “he did not even see fit to visit the accident scene”); O’Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1107 (7th Cir. 1994) (adopting view that a medical expert should have reviewed relevant medical literature, reviewed Plaintiff’s medical records, and done a thorough work-up of the Plaintiff); but see Walker v. Soo Line R. Co., 208 F.3d 581, 591 (7th Cir. 2000) (lack of medical examination did not render expert’s testimony on effects of electrical current on the body inadmissible) (citation omitted). Moreover, expert mental health witnesses must use methodology that “adhere[s] to the same standards of intellectual rigor that are demanded in [their] professional work in order to be reliable.” State Farm Fire & Cas. Co. v. Electrolux Home Products, 980 F. Supp. 2d 1031, 1047 (N.D. Ind. 2013) (second alteration in original, citations omitted).
Dr. Morgan’s specific field is forensic psychology. Individual evaluation is the foundation of forensic psychology and its primary method. Practice guidelines for forensic psychology require that “[f]orensic practitioners . . . only provide written or oral evidence about the psychological characteristics of particular individuals when they have sufficient information or data to form an adequate foundation for those opinions or to substantiate their findings.” Specialty Guidelines for Forensic Psychology, AMERICAN PSYCHOLOGICAL ASSOCIATION
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(excerpt attached as Ex. 12) § 9.03 (Opinions Regarding Persons Not Examined).4 “When it is not possible or feasible to examine individuals about whom they are offering an opinion,” the ethical guidelines require that they “make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony.” Id.
Dr. Morgan acknowledges that in his forensic practice, he would only testify as to a criminal defendant’s competency after having evaluated them in person. Ex. 4 at 83:10–13. Under cross-examination, he agreed with the proposition that “a mental health professional has to evaluate someone to reach a conclusion as to their mental health.” Id. at 83:5–9. Yet he never sought to evaluate Mr. Vermillion. Id. at 83:14–15. When asked why he chose not to examine Mr. Vermillion, Dr. Morgan indicated that he felt he did not have the time. Id. at 83:19–20; cf. Fuesting v. Zimmer, Inc., 421 F.3d 528, 534–35 (7th Cir. 2005), vacated in part on other grounds, 448 F.3d 936 (suggesting that courts weighing an expert’s reliability consider whether “the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting”) (quoting Fed. R. Evid. 702 advisory committee’s note (2000)).
Dr. Morgan admits that, due to lack of familiarity with Mr. Vermillion, he cannot testify to Mr. Vermillion’s mental health or the effects of solitary confinement on Mr. Vermillion. Ex. 4 at 82:22–24. See Castrillon v. St. Vincent Hosp. & Health Care Ctr., Inc., 2015 WL 3448947, at *4 (S.D. Ind. May 29, 2015) (barring a psychology expert from diagnosing the defendant because, even though it would be in his expertise to do so, the expert “conceded in his deposition that he cannot make such a diagnosis, having never met [the defendant].”). Dr. Morgan therefore selects a roundabout approach, commenting on his mental health indirectly through critique of
4 Available at https://www.apa.org/practice/guidelines/forensic-psychology (last visited June 20, 2019).
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Dr. Kupers. But this limitation renders his conclusions questioning Dr. Kupers’ findings totally lacking in foundation and inadmissible, as will be explained.
1. Dr. Morgan’s Opinions Regarding the Need For Psychological Testing to Rule Out Malingering Should be Excluded.
Dr. Morgan opines that Dr. Kupers did not adequately rule out the possibility that Mr. Vermillion was malingering. Ex. 1 at 12. This opinion relies on prejudicial and offensive speculation as to Mr. Vermillion’s alleged propensity for deceit. Dr. Morgan’s opinions in this regard are unsupported and should be excluded.
As a preliminary matter, Dr. Kupers considered the possibility of malingering. He emphasized that it is “always important to rule out malingering in the course of a forensic examination.” Kupers Report (excerpts attached as Ex. 13) at 42. He concluded based on his clinical examination that Mr. Vermillion was not exaggerating his symptoms, because he exhibited a tendency to minimize symptoms, not overstate them, and because the constellation of symptoms he described made sense in light of Mr. Vermillion’s experiences. Id. In deposition, Dr. Morgan acknowledged that scholarly reports of the negative mental health consequences of solitary confinement were “not inconsistent” with Dr. Kupers’ description of Mr. Vermillion’s symptoms. Ex. 4 at 120:7–13. He agreed this consistency “could be an indication of honest reporting.” Id. at 120:20–21. Nor is psychological testing an infallible, truth-telling serum. Id. at 118:14–17. Such tests can indicate that a person is malingering when they are not, and can conclude that a person is telling the truth when they are actually malingering. Id. at 118:18– 19:1.
Nonetheless, Dr. Morgan opines that given Mr. Vermillion’s (1) “incentive to deceive (i.e., for financial gain),” and (2) “his history of exhibiting an antisocial personality disorder,” Dr. Kupers’ use of the clinical interview to rule out malingering was insufficient. Ex. 1 at 12.
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As to (1), Dr. Morgan has no basis for attributing to Mr. Vermillion a financial incentive to deceive. Under Dr. Morgan’s formulation, every person examined as part of a lawsuit operates with the incentive to lie and deceive. Ex. 4 at 120:22–21:6.
In arriving at this conclusion, Dr. Morgan cites a study by Dr. Heilbrun and others supposedly finding that “the majority of persons (67%) assessed in a forensic context distorted their presentations in response to external motivations,” Kirk Heilbrun et al., An MMPI-Based Empirical Model of Malingering and Deception, 8 BEHAVIORAL SCIENCES & THE LAW 45 (1990) (attached as Ex. 14), and asserts that financial gain is one such external motivation. Ex. 1 at 12. The subjects of the Heilbrun study, however, were patients at a forensic hospital committed as either incompetent to stand trial or not guilty by reason of insanity. Heilbrun et al. (Ex. 14) at 48. They were not civil litigants responding to purported “financial gain,” and so these results are not in any way applicable to Mr. Vermillion. See General Electric et al. v. Joiner, 522 U.S. 136, 146 (1997) (upholding exclusion of expert opinions extrapolated from far-removed studies, finding that the studies were too “dissimilar to the facts presented in this litigation” to support the experts’ conclusions). Moreover, Dr. Morgan’s recitation of the Heilbrun results is misleading. See Ex. 1 (“67% . . . distorted their presentations in response to external motivations”). The Heilbrun study assessed the usefulness of a new approach to categorizing response styles by testing inter-rater reliability. Heilbrun et al. (Ex. 14) at 45. Of 159 subjects, researchers could not categorize 33% (52 subjects) using the new approach. Id. at 51. Of the remaining 67%, they classified 22% as Reliable respondents. Id. Forty-six percent of response styles were classified as Defensive (21%), Irrelevant (16%) or Malingering (9%). Id. The authors observed that Defensive and Irrelevant response styles were far more prevalent than
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Malingering, notable due to the out-sized attention paid to the phenomenon.5 Id. Furthermore, those response-style categories categorized as other than “reliable” do not uniformly fit Dr. Morgan’s description of subjects “distorting their presentations in response to external motivations.” For example, Irrelevant refers to a response style “when one does not become engaged in the evaluation process; responses are not necessarily relevant to question content and may be random.” Id. at 45.
Additionally, Dr. Morgan’s proposed testimony that all participants in a lawsuit have a motive to lie for financial gain is unduly prejudicial against civil litigants, Fed. R. Evid. 403, and usurps the jury’s role as arbiter of credibility. See Isaacs v. Hill’s Pet Nutrition, Inc., 2008 WL 820273, at *3 (S.D. Ind. Mar. 25, 2008) (“those opinions of the doctors’ opinions that appear to be reasonably calculated to opine on Isaacs’ credibility generally, are inadmissible”).
Dr. Morgan next cites Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers, by Melton et al., as support for his assertion that “interviewbased approaches to detecting malingering are of such limited utility” (citing Melton et al.), “that tests specially designed to detect malingering should be a routine part of forensic science.” Ex. 1 at 12. Actually, the cited text espouses “a number of strategies . . . for systematically investigating response style.” Melton et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (2018) (excerpts attached as Ex. 15) at 58; Ex. 4 at 117:3–17. And it identifies the clinical interview as “the most common and venerable” among them. Melton et al. (Ex. 15) at 58; Ex. 4 at 117:13–21. The full quotation
5 The 67% figure that Dr. Morgan references does not appear on the face of the study. See Heilbrun et al. (Ex. 14). Dr. Morgan appears to have removed the 52 out of 159 (33%) subjects that could not be categorized from consideration. Following that reduction, the 35 subjects deemed Reliable account for 33% of the remaining 107 subjects, and those classified as Defensive, Irrelevant or Malingering account for the remaining 67%. But that figure only accounts for 46% of the total 159 subjects, not “the majority of persons . . . assessed.” Cf. Ex. 1 at 12.
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from which Dr. Morgan cites is consistent with Dr. Kupers’ approach of performing psychological testing only when the clinical interview suggests malingering. The Handbook reads: “Increasingly, mental health professionals have concluded that because interview-based approaches to detecting malingering are of such limited utility, employment of instruments specifically designed for this purpose should be considered the standard of practice whenever there is a basis for suspecting over-reporting of symptoms.” Melton et al. (Ex. 15) at 59 (emphasis added); Ex. 4 at 117:22–18:13. And therein lies the problem: without examining Mr. Vermillion, Dr. Morgan lacks foundation to question Dr. Kupers’ assessment that there was no basis for suspecting over-reporting.
Indeed, Dr. Morgan admits he is not qualified to opine as to the “standard of practice” for a psychiatrist (such as Dr. Kupers) performing such evaluations. When asked if conducting psychological testing for every person involved in a lawsuit was standard practice for psychiatrists, Dr. Morgan testified: “I don’t know what the standard practice or best practice is for a psychiatrist being as that I’m not a psychiatrist. I can’tI can’t opine on that.” Ex. 4 at 122:10–13. Dr. Morgan therefore lacks expertise and grounds to conclude that Dr. Kupers should have done more to rule out the possibility that Mr. Vermillion was malingering.
As to (2), Dr. Morgan cannot base his opinions on Mr. Vermillion’s unique mental health profile because he did not examine him. Yet Dr. Morgan opines that due to Mr. Vermillion’s past antisocial personality disorder diagnosis, Mr. Vermillion has the propensity to be deceitful, thereby concluding that Dr. Kupers should have suspected malingering. Ex. 1 at 12.
Dr. Morgan describes antisocial personality disorder as a “condition marked by a pervasive pattern of disregard for and violation of the rights of others . . . as indicated by at least three symptoms, including breaking the law, deceitfulness, impulsivity, disregard for others’
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safety, consistent irresponsibility, and lack of remorse.” Id. at 12–13 (emphasis in original). Although Dr. Morgan acknowledges that a patient need only identify three out of six listed symptoms to warrant this diagnosis, he underlines “deceitfulness” and extrapolates from the mere fact of Mr. Vermillion’s past diagnosis that he is a liar until proven otherwise.
Dr. Kupers rejected the antisocial personality disorder diagnosis based upon the results of his interview. Ex. 13 at 43. He noted that Mr. Vermillion had been diagnosed with antisocial personality disorder in the past. Id. But Dr. Kupers concluded that, “[w]hile that would be a relevant diagnosis for him as a much younger man, when he was abusing substances and getting in a lot of trouble, his current ability to plan ahead, work very hard and diligently on his legal pursuits, remain clean and sober and help other prisoners with their legal cases pretty much rules out the diagnosis of antisocial personality disorder.” Id. For that reason, Mr. Vermillion’s previous antisocial personality disorder had no relevance to Dr. Kupers’ assessment of the interview’s integrity.
Dr. Morgan agreed that “a mental health professional has to evaluate someone to reach a conclusion as to their mental health.” Ex. 4 at 83:5–9. Without evaluating Mr. Vermillion, Dr. Morgan cannot say whether Mr. Vermillion currently meets criteria for an antisocial personality disorder diagnosis. Testimony as to a past antisocial personality disorder diagnosis that Dr. Morgan cannot say is still accurate will prejudice the jury against Mr. Vermillion without offering any probative value. Thus, this opinion should be excluded under Federal Rules of Evidence of 402 and 403, as well as 702.
2. Dr. Morgan’s Opinions Alleging Confirmation Bias and Failure to Consider Preexisting Factors Are Inadmissible.
Dr. Morgan also criticizes Dr. Kupers for failing to rule out “confirmation bias” and “preexisting factors.” Regarding confirmation bias, Dr. Morgan insists that Dr. Kupers should
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have “demonstrate[d] efforts to minimize bias” due to his “extreme position.” Ex. 1 at 13. He does not explain what Dr. Kupers should have done to minimize perceived bias. Without any grounding in scientific expertise, this attack on Dr. Kupers improperly invades the jury’s role to weigh credibility. See United States v. Hall, 165 F.3d 1095, 1107 (7th Cir. 1999) (“[T]he credibility of eyewitness testimony is generally not an appropriate subject matter for expert testimony because it influences a critical function of the jury—determining the credibility of witnesses.”) (citation omitted).
As to preexisting factors, the critique boils down to a repackaging of his opinion that Dr. Kupers did not rule out malingering. Dr. Morgan acknowledges statements Mr. Vermillion made during his clinical interview that “attribute his current mental health functioning to the effects of segregation,” rather than preexisting, chronic concerns. Ex. 1 at 13. But he refuses to credit Mr. Vermillion’s reported statements without psychological testing to prove their veracity. Id. However, “[e]xperienced forensic clinicians” such as Dr. Kupers, “develop their own interview questions” to detect malingering. Melton et al. (Ex. 15) at 58. Dr. Morgan cannot render an opinion on the need for psychological testing in Mr. Vermillion’s case, because he did not examine him, and because he is unfamiliar with standard practice for forensic psychiatrists.
For these reasons, Dr. Morgan’s opinions criticizing Dr. Kupers’ assessment of Mr. Vermillion should be excluded and Dr. Morgan should not be permitted to testify to any aspect of Mr. Vermillion’s mental health.
B. Dr. Morgan’s Opinions Minimizing the Harms that Attend Solitary Confinement Are Based on Unreliable Methods and Data.
The Daubert framework for evaluating admissibility of expert testimony is equally applicable to the social sciences. Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996). Experts in the social sciences must derive their opinions from reliable methods and base
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their opinions on sufficient facts and data in order for those opinions to be admissible. Hale v. Gannon, 2012 WL 3867039, at *1 (S.D. Ind. Sept. 5, 2012). Courts may consider additional factors bearing on reliability, including “[w]hether a theory or technique . . . can be (and has been) tested; [w]hether it has been subjected to peer review and publication; [w]hether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique’s operation; and [w]hether the theory or technique enjoys general acceptance within a relevant scientific community.” Kumho Tire, 526 U.S. at 149–50 (internal quotation marks and citations omitted).
1. Dr. Morgan Has No Basis to Conclude that Conditions in the Segregation Units He Has Studied Are Similar to Conditions at Issue in this Case.
Dr. Morgan seeks to opine that solitary confinement produces “mild to moderate health and mental health effects comparable to the effects of incarceration as a general matter,” and that “some inmates placed in AS will experience negative effects, some will not experience negative effects, and some will experience improved functioning.” Ex. 1 at 5. For these opinions to be admissible, they must be helpful to the jury. In other words, they must connect to the facts of the case. Porter v. Whitehall Labs., Inc., 9 F.3d 607, 613 (7th Cir. 1993) (“Expert testimony which does not relate to an issue in the case is not relevant and, ergo, non-helpful.”) (quoting Daubert, 509 U.S. at 591); see also Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1184 (9th Cir. 2002) (“Whether testimony is helpful within the meaning of Rule 702 is in essence a relevancy inquiry.”); United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985) (“An additional consideration under Rule 702—and another aspect of relevancy—is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.”).
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Dr. Morgan cannot opine as to the harm of conditions at issue in this case because he has
no exposure to them. He has never been to an Indiana prison, Ex. 4 at 81:18–19, has never been
to the WCU, id., and did not familiarize himself with literature about those conditions, id. at
82:8–14. See, e.g., Ancho, 157 F.3d at 519 (holding that a district court properly excluded an
expert witness because, among other reasons, “he did not even see fit to visit the accident
scene”). His report does not address the prison conditions at issue in this case. Id. at 85:20–86:1
(“Q: And your report doesn’t describe the segregation unit at issue in this case, correct? A: No,
not beyond what was reported in Dr. Kupers’ and Mr. Pacholke’s report.”). He acknowledges
that segregation in the United States is not uniform and that variation in conditions matters a
great deal:
Q: Do you agree that the conditions in segregation vary across facilities in prison systems?
A: I do. Q: Do you agree that those conditions are important in assessing
the effects of segregation on prisoners? A: I do. Q: For example, do you agree that the degree of isolation varies
across prison segregation units? [Objection as to form.] A: I do. Q: And is it important in evaluating a segregation unit to be
aware of the degree of isolation? A: Yes.
Id. at 84:9–22.
In the other solitary confinement cases Dr. Morgan has worked on, he made the effort to
tour the facility so as to have a basis for his opinion. Id. at 57:22–25 (describing touring prisons
in Alabama, California, and Canada). Dr. Morgan said that he did not tour the WCU because he
was not asked to opine “as to Mr. Vermillion’s mental state as it pertained to the effects of
segregation.” Id. at 85:10–12. But “the effects of segregation” is the precise topic of Dr.
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Morgan’s report. See Ex. 1 at 1 (“the use of restrictive housing (such as AS) will, on average, produce mild to moderate physical and mental health effects comparable to the effects of incarceration as a general matter”). He grounds his opinions as to the effects of segregation by relying on his experience in Kansas, id. at 3, his litigation work in Alabama, California and Canada, id. at 4, and studies of systems in Colorado, Kansas, and Canada. Id. at 6–8 (citing O’Keefe 2010, Chadick 2018, and Zinger 2001, respectively). None of the sources he relies on provides a sufficient basis for understanding conditions in the WCU. Because Dr. Morgan’s opinions are not tethered to the conditions at issue in this case, they are irrelevant, will not help the jury assess the effects of segregation at the WCU, and should be excluded.
2. Dr. Morgan Relies on Inapplicable Studies and Misleading Data. Dr. Morgan’s 2016 meta-analysis shapes his view that solitary confinement produces “mild to moderate health and mental health effects on average,” comparable to the consequences of general imprisonment, and that some individuals in solitary confinement will experience negative consequences, while some will improve and others will remain unchanged. Ex. 1 at 11. A court in Canada, informed by preeminent scholars in this field of serious errors in the metaanalysis, did not “give much weight to Dr. Morgan’s meta-analysis conclusions.” Ex. 4 at 63:3– 16. Dr. Craig Haney has authored an article thoroughly exposing these errors. See Haney (Ex. 11) at 398–407. Dr. Morgan’s meta-analysis is fatally flawed, as are the ways in which he attempts to derive meaning from the results. First, Dr. Morgan’s meta-analytic study excludes most relevant data on the harms of solitary confinement. Id. at 399–400. Meta-analysis is a tool to measure the “magnitude of relationships between variables.” Id. at 398. The integrity of Dr. Morgan’s meta-analytic approach requires that there be multiple, high-quality controlled studies whose effect sizes can
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then be synthesized. But “[t]he prison setting rarely lends itself to collection of meaningful quantitative data capable of generating the kinds of effect sizes on which meta-analyses depend.” Id. That is, there are few quantitative, controlled studies of the effect of segregation on prisoners, because it is unethical to demand that prisoners endure the torture of solitary confinement solely for research. See Ex. 4 at 135:14–36:2 (“Q: And the research that’s developed on solitary confinement has not, in fact, relied on control studies because of the difficulties in conducting such studies in prison, right? A: Yes, that’s one of the primary issues.”)
For this reason, much of the research on solitary confinement is qualitative. Haney (Ex. 11) at 367. But “there is a substantial amount of it and the findings are robust.” Id. At least two U.S. Supreme Court justices have cited this research approvingly, as have multiple other members of the federal judiciary.6 See Apodaca v. Raemisch, 139 S. Ct. 5 at n.8 (2018) (Sotomayor, J., concurring); Davis v. Ayala, 135 S. Ct. 2187 (2015) (Kennedy, J., concurring) (stating that “penology and psychology experts, including scholars in the legal academy, continue to offer essential information and analysis” and observing that “research . . . confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price.”); Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019) (explaining that “[n]umerous studies reveal that prolonged detention of inmates” in solitary conditions on death row has damaging results); Grissom v. Roberts, 902 F.3d 1162, 1175–78 (10th Cir. 2018) (Lucero, J., concurring) (citing research on solitary confinement including the work of Terry Kupers, Craig Haney, and Stuart Grassian); Williams v. Sec’y Pennsylvania Dep’t of Corr., 848 F.3d 549, 566 (3d Cir. 2017) (citing “[t]he robust body of scientific research on the effects of solitary confinement” as
6 See also Ruiz v. Texas, 137 S. Ct. 1246 (2017) (Breyer, J., dissenting from denial of stay of execution) (observing that Mr. Ruiz’s “severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty” are symptoms “long associated with solitary confinement”).
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support for the conclusion that “the deprivations of protracted solitary confinement so exceed the typical deprivations of imprisonment” as to create a liberty interest in avoiding solitary).
Dr. Morgan’s meta-analyses artificially limited the universe of solitary confinement research. Haney (Ex. 11) at 399–401. Research Synthesis 1 reviewed 150 studies for potential inclusion in the meta-analysis but included just 14 (9.3%). Morgan (Ex. 10) at 4; Haney (Ex. 11) at 400. Research Synthesis 2 identified 40,589 such articles and reduced that number to 61 it deemed related to the research question. It then excluded all but 19 for meta-analysis (31.15%). Morgan et al. (Ex. 10) at 4–5; Haney (Ex. 11) at 400. Moreover, many of the included studies “have little or nothing to do with the key question of whether and when solitary confinement is psychologically harmful,” instead addressing medical outcomes, recidivism, and institutional misconduct. Haney (Ex. 11) at 400 & n.18 (finding that only six studies in Research Synthesis 1 and ten in Research Synthesis 2 address the psychological effects of solitary confinement). This unrepresentative sample is not a sound basis for a meta-analytic study purporting to provide a comprehensive synthesis of the research. Id. (“A meta-analysis that includes so little of the available relevant literature is not a synthesis of much of anything.”).
Second, Dr. Morgan’s meta-analysis uses unreliable data. See British Columbia Civil Liberties Ass’n. v. Canada (Attorney General), 2018 BCSC 62 (2018) (excerpts attached as Ex. 16) ¶¶ 253 & 254 (agreeing with criticisms of the Colorado Study and finding that “the Morgan et al. Study is unhelpful in understanding solitary confinement because of flaws in the Colorado and Zinger studies”).
The meta-analysis relies heavily on a 2010 study of prisoners in Colorado (the Colorado Study). Haney (Ex. 11) at 401–02 (explaining that because of the Colorado Study’s comparatively large sample size, the weights given to effect sizes derived from the Colorado
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Study “dwarf” others in the meta-analyses). The Colorado Study is a longitudinal study of two comparator groups of prisoners in Coloradoone group in administrative segregation and the other in general populationwith various sub-groups. See generally Maureen O’Keefe et al., “One Year Longitudinal Study of the Psychological Effects of Administrative Segregation,” Final Report to the National Institute of Justice (2010) (Ex. 17); Ex. 1 at 8; Haney (Ex. 11) at 379–80. The goal was to isolate the variable of solitary confinement to determine its effect. But because both comparison groups were exposed to the treatment variable (i.e., solitary confinement), the resulting data is not reliable and should not be admitted at trial. Haney (Ex. 11) at 380–86.
The contamination began at the very start of the Colorado Study. The study selected participants by identifying prisoners who were given disciplinary tickets and then were either sent to administrative segregation (and designated members of the treatment group) or to general population (control group). Id. at 380–81. But the disciplinary process necessarily involved exposure to solitary confinement for a significant period of time, thereby contaminating the control group at the start. Id. at 380–84. Moreover, conditions in disciplinary segregation were more severe than those in administrative segregation. Id. at 381–82. So what the Colorado researchers really studied was how prisoners rated their mental health immediately after moving from a highly restrictive form of segregation to a less restrictive form of segregation. See Peter Scharff Smith, “The Effects of Solitary Confinement: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation,” CORRECTIONS & MENTAL HEALTH (June 2011) (attached as Ex. 18) at 7 (“study participants were already damaged by solitary confinement when the study began”).
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There was also cross-contamination during the study itself. Haney (Ex. 11) at 384–86. Some members of the treatment group left segregation for unspecified periods to move to less restrictive housing, and some members of the control group were exposed to solitary during the study.7 Id. Yet the aggregated results did not exclude study participants who were subject to cross-contamination. Id. at 385; Ex. 4 at 147:16–24.
Dr. Morgan professes awareness of the critiques of the Colorado Study, but he exhibited a surprising lack of familiarity with the Study itself. He agreed that “[t]he most serious critique of the Colorado study is that there was fatal contamination of the control group,” Ex. 4 at 142:11–14, and that if there were such contamination there “could” be real questions as to the value of the data. Id. at 142:15–17. He agreed that Dr. Haney “found that half of the administrative segregation [group] of prisoners, 60about half, 62 of 127, spent an unspecified
period of time in general population or elsewhere during the study.” Id. at 143:5–9. But he didn’t recall whether or not participants were in disciplinary segregation at the start of the study, id. at 143:1–5, and was unable to describe the selection procedure for identifying participants. Id. at 143:8–12.
There are other major problems with the Colorado Study. See Haney (Ex. 11) at 386–98. The sole mechanism for collecting data on prisoners’ mental health was self-scoring pen and paper tests. Id. at 396. Dr. Haney explains:
Researchers who use many rating scales (especially ones not validated for the particular population) generally use other methods of data collection as a validity check. The most basic is a face-to-face interview to establish rapport and acquire background information. When possible, behavioral data (by records reviews or
7 See also Smith (Ex. 18) at 6 (describing contamination in the Colorado Study and concluding that “the GP control group was not really a GP control group at all since the majority of these experienced either AS or punitive segregation during their participation in the study, and in addition mostperhaps allexperienced AS immediately prior to their AS hearing, after which they went into GP”; “the Colorado study is in fact not a study comparing segregation/solitary confinement with non-segregation/solitary confinement, since most of the GP inmates experienced solitary confinement during the study”).
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behavioral rating scales completed by others) are included. These different sources of information should be reconcilable, and the interviews provide the glue that binds them. Id. While the Colorado Study researchers had access to mental health and medical records and crisis reports that could have provided a check as to the accuracy of the prisoners’ self-reporting, they ignored this data. Id. at 396–97; Stuart Grassian & Terry Kupers, “The Colorado Study vs. the Reality of Supermax Confinement” (Ex. 19) at 6–7. They eschewed face-to-face interviews altogether. Haney (Ex. 11) at 396; Smith (Ex. 18) at 2 (criticizing Colorado Study on basis that tests were administered “without in-depth interviews” and “self-reported data was not collected by a psychiatrist, a psychologist, or an experienced prison researcher”). In addition, the applicability of the Colorado Study data to solitary confinement in other systems is highly fraught because of the nature of Colorado’s administrative segregation program. Haney (Ex. 11) at 389–390. Colorado divides its administrative segregation into three levels and provides additional privileges at each level. Id. Those at Level 3 are still in administrative segregation, but they have an array of privileges including institutional work outside of their cells that are not common features of solitary. Id. at 390 and n.5. These differences led a court in California to discount the relevance of the Colorado Study to their solitary confinement regimen entirely.8 See Joiner, 522 U.S. at 146 (upholding exclusion of expert opinions derived from studies too “dissimilar to the facts presented in this litigation”).
8 See Corp. of the Canadian Civil Liberties Ass’n., 2017 ONSC 7491 (Ex. 6) ¶¶ 236–37 (“The respondent also relied on the O’Keefe study completed in Colorado in 2010. I do not accept this study is valid in Canada because the system of administrative segregation is different in Canada. Specifically, at page 11 of the study the authors describe the incentive-based Colorado program. This program has three quality-of-life levels. Each level brings with it more privileges which must be earned through appropriate behavior. At quality-of-life level 3, inmates in administrative segregation are allowed four three-hour visits per month, four 20-minute phone sessions, $25 worth of canteen per week and the opportunity to work as a porter or barber in the institution. This is not comparable to the Canadian system.”).
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The WCU does not have a similar privileges program. See Summary Judgement Opinion and Order (Doc. No. 214) at 11–12.
Moreover, “[i]t is critical under Rule 702 that there be a link between the facts or data the expert has worked with and the conclusion the expert’s testimony is intended to support.” United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003). As discussed supra, Dr. Morgan cannot assess the relevance of segregation conditions in Colorado to conditions in the WCU, because he has never been to the WCU.
Despite the Colorado Study’s problems and Dr. Morgan’s inability to connect the conditions studied in Colorado to the conditions at the WCU, he relies on the Colorado Study heavilynot only in his meta-analysis, but in his expert report. His report describes the Colorado Study as the “[g]old standard” of methodological approaches to examining the effects of solitary confinement, emphasizing the outsized weight he attributes to this unintelligible study. Ex. 1 at 8. The unreliability of Dr. Morgan’s testimony is compounded by the fact that he cannot opine as to the value of the studies relied on in his meta-analysis, because he is admittedly not an expert in design of controlled studies. Ex. 4 at 134:22–24 (“Q: Do you hold yourself out as an expert in the design and execution of controlled studies? A: No.”).
The discredited Colorado Study is not the only unreliable source that Dr. Morgan relied on for his meta-analyses. He relied on the Zinger 2001 study in the meta-analysis and in his expert report, repeating its purported finding of “no significant mental health decompensation for segregated inmates compared to their peers in the general prison population.” Ex. 1 at 6–7. But the Zinger study suffered from multiple flaws, including a major attrition problem. Over the 60day period of the study, the number of administrative segregation prisoners dropped from 83 to 23. Ivan Zinger et al., “The Psychological Effects of 60 Days in Administrative Segregation,” 43
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CANADIAN J. CRIMINOLOGY 47 (2001) (Ex. 20) at 63; Haney (Ex. 11) at 403. Of those 23, only 10 were involuntary, meaning that attrition decreased the number of involuntary segregation participants by 80%. Zinger et al. (Ex. 20) at 64; Haney (Ex. 11) at 403. The study’s authors explain that “[t]he problem with attrition is especially relevant to the evaluation of the psychological effects of segregation,” because “[s]ubjects who decide to no longer participate in the experiment may be the same individuals who would not cope well with the conditions of segregation and would be negatively affected by them.” Zinger et al. (Ex. 20) at 56.
The Zinger study also involved prisoners who volunteered for segregation; another problem with multiple studies Dr. Morgan relied on for his meta-analysis. Ex. 4 at 164:5–10 (Zinger 2001 (attached as Exhibit 20); 168:2–12 (Walters 1963 (attached as Ex. 21); 168:24– 69:10 (Ecclestone 1974 (attached as Ex. 22)). Researchers have warned against extrapolating the effects of voluntary segregation to the very-different context of forced segregation. Haney (Ex. 11) at 402–03 (“Voluntarily isolated prisoners . . . control their own fates; at least in theory, they can leave. . . . They should not be treated as if their experiences represent the effects of solitary confinement on involuntarily segregated prisoners.”). Dr. Morgan agreed that “whether a prisoner is in solitary voluntarily or involuntarily could effect that prisoner’s experience in their confinement.” Ex. 4 at 164:11–14. See Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997) (statistical study claiming that negative correlation between employees’ age and retention proved age discrimination was inadmissible under Daubert because it failed to consider or correct for obvious alternative explanatory variables).
These studies also analyzed such short periods of time that they do not provide reliable data for opinions as to the effects of solitary confinement in a case such as this one. Id. at 164:15–18 (Zinger (Ex. 20) 60 days); 168:17–20 (Walters (Ex. 21) 4 days); 169:11–13
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(Ecclestone (Ex. 22) 10 days). Such studies are not meaningfully similar to the facts of this case. See Joiner, 522 U.S. at 146 (approving exclusion of expert’s use of dissimilar scientific studies). Yet another study compared two different forms of solitary confinement and had no general population control group. Id. at 166:3–22 (Cloyes 2016 (attached as Ex. 23)).
Third, Dr. Morgan’s interpretation of the results of his meta-analysis lacks rigor and is unreliable.
The meta-analysis results purport to show small-to-moderate (0.06 to 0.55) effect sizes on measures of mental health and wellbeing for those in solitary confinement. Morgan et al. (Ex. 10) at 1. As discussed, the meta-analysis arrived at these results by synthesizing studies comparing those in solitary confinement to those in prison general population. In his expert report, Dr. Morgan then takes an illogical step forward. He compares the results from his metaanalysis to the effects of general incarceration on mental health and wellbeing. Ex. 1 at 10. He thus purports to compare the effects solitary confinement to the effects of general incarceration using the following (flawed) approach. Solitary Confinement (X) : General Population (Y) = Association between Solitary Confinement
and Mental Health Consequences General Incarceration (Y)9 : Life Outside Prison (Z)= Association between General
Incarceration and Mental Health Consequences The proper method would be to first assess the strength of the association between solitary confinement and mental health as compared to a control group of people not in prison, then test the strength of the association between general population and mental health as
9 It is not even clear from Dr. Morgan’s report that “general incarceration” excludes solitary confinement and is the equivalent of general population, as it should.
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compared to a control group of people not in prison, and then compare the two effect sizes. Thus the correct formula is as follows: Solitary Confinement (X) : Life Outside Prison (Z) = Association between Solitary Confinement
and Mental Health Consequences General Incarceration (Y) : Life Outside Prison (Z) = Association between General
Incarceration and Mental Health Consequences Dr. Morgan’s attempts to compare the effect sizes of segregation from his 2016 metaanalysis to the effect sizes of general incarceration on prisoners’ well-being have not been peer reviewed.10 Ex. 4 at 186:10–17. Cf. Tyus, 102 F.3d at 263 (holding expert opinions were admissible where expert relied on “peer-reviewed articles accepted in his profession”). His method is an apples-to-oranges comparison that proves nothing. See State Farm Fire, 980 F. Supp. 2d at 1049 (“When conducting a comparative analysis, to meet the reliability that Daubert demands, an expert must select samples that are truly comparable . . . . care must be taken to be sure that the comparison is one between ‘apples and apples’ rather than one between ‘apples and oranges.’ ”) (citations omitted). Problems with Dr. Morgan’s comparative analysis go beyond even this “fatal flaw.” Id. His comparison of the effects of solitary confinement to the effects of general incarceration is a methodological disaster. Dr. Morgan relies on the self-reported experience of a single prisoner, “Inmate A,” whom he examined at Pelican Bay State Prison, California. He cites Inmate A’s view that prisoners
10 His bar chart, reproduced infra, appeared in the correctional magazine of the American Corrections Association, Corrections Today. Ex. 8 at 20. While Dr. Morgan categorizes this publication as peer-reviewed in his curriculum vitae, he acknowledged under deposition questioning that the peer reviewers are corrections industry professionals and not research psychologists. Ex. 4 at 15:2–6. Moreover, the magazine published the piece in an opinion column, “Speak Out.” See Ex. 8; CORRECTIONS TODAY (Ex. 19) at 4 (“Corrections Today is the perfect space to share your opinions that are relevant to corrections. We invite submissions to the Speak Out column for just this opportunity.”).
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Case 1:15-cv-00605-RLY-TAB Document 312 Filed 06/21/19 Page 29 of 34 PageID #: 1878 “eventually adjust and cope adequately in the structured environment of AS” as support for his hypothesis that prisoners “adapt to their environment, whether it be a general prison population setting or AS.” Ex. 1 at 11. But out of the 130–150 prisoners Dr. Morgan interviewed, Inmate A was a major outlier. Ex. 4 at 198:1–200:8. Whereas Inmate A expressed no concerns or significant distress related to his isolation, “the majority of other inmates [Dr. Morgan] interviewed expressed distress and concern resulting from their segregation placement.” Id. at 199:19–200:8. Dr. Morgan thus ignored the experiences of all those prisoners that did not fit his theory and elevated the experience of the one prisoner that did. Dr. Morgan includes the following bar chart purporting to compare the effect size estimates for administrative segregation to the effect size estimates for general incarceration.
Ex. 1 at 10. The blackened bar showing the effect size of “General Incarceration” derives from a 1990 study by James Bonta and Paul Gendreau. See James Bonta and Paul Gendreau,
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Case 1:15-cv-00605-RLY-TAB Document 312 Filed 06/21/19 Page 30 of 34 PageID #: 1879 Reexamining the Cruel and Unusual Punishment of Prison Life, L. & HUMAN BEH. 347 (1990) (attached as Ex. 24). Contrary to Dr. Morgan’s representations in his report, the data he pulls from Bonta & Gendreau for the bar chart is not the effect size of general incarceration. Ex. 4 at 179:21–180:14. It is the effect size of overcrowding. Id. (“Q: So we’re comparing the effect sizes of the harms of segregation to the effect sizes of the harms of living in an overcrowded prison? A: That would be fair.”); see Bonta & Gendreau (Ex. 24) at 352. There is nothing to learn from this inapt comparison. Dr. Morgan’s use of it here is deeply misleading. In another solitary confinement case, Dr. Morgan submitted a bar chart (copied below) that was similar in all but one respect to the bar chart he uses here.
See Ex. 4 at 180:15–81:1. Dr. Morgan cited this bar chart as support for his conclusion that the adverse health effects of solitary confinement on health are similar to the adverse health effects of general incarceration. See id. at 180:15–182:1. Dr. Morgan acknowledged under cross-examination that the bar on that chart representing the effect size of the adverse health
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effects of general incarceration was totally wrongit was inverted. Id. at 182:2–82:19. The study he relied on for that comparison (Heigel et al. 2010 (attached as Ex. 25)) actually showed that people in general incarceration “improved in terms of their physical health functioning.” Id. at 182:16–19. This error led a Canadian court to disregard Dr. Morgan’s comparison opinions. Corporation of the Canadian Civil Liberties Association v. the Queen, 2017 ONSC 7491 (2017) (excerpts attached as Ex. 6) ¶ 95 (“Specifically, his report that administrative segregation was no more harmful than incarceration in the general prison population was based on an erroneous conclusion that there was a negative association between incarceration in the general population and health outcomes when the opposite was correct.”).
Dr. Morgan did not revisit his incorrect methodology and adjust his conclusions when offering expert testimony in this case. Instead, Dr. Morgan reports the same conclusion, but without the bar chart comparison (or any evidence on health) to support his claim: “In totality, it can be expected that the use of restrictive housing (such as AS) will produce mild to moderate health . . . effects comparable to the effects of incarceration generally.” Ex. 1 at 11. Dr. Morgan’s opinion rests on nothing but his own “ipse dixit.” Kumho Tire, 526 U.S. at 157.
Dr. Morgan’s erroneous methods produce precisely the type of opinions that Daubert and its progeny require courts to address. His proposed testimony threatens to subvert the fairness of Mr. Vermillion’s trial by persuading the jury that his charts and figures constitute objective and reliable scientific evidence.11 Cross-examination to sufficiently demonstrate the errors in his
11 Dr. Haney pinpoints the problem of Dr. Morgan’s meta-analysis in this regard: The concern is not only that meta-analyses on important prison topics almost invariably ignore or underrepresent the larger literature, but also that they privilege certain kinds of studies far beyond their actual scientific merit, and do so in a way that many readers are unlikely to appreciate. One critique rightly observed that readers “might not be motivated to look beyond the meta-analyses themselves due to confidence in the objective, straightforward nature of the tasks of conducting a meta-analysis, reporting findings, and making recommendations.” Reducing entire studies to single or multiple effect sizes almost invariably creates a false equivalency between them. Readers can be
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opinions will require educating the jury on complicated topics involving effect sizes, metaanalysis, and controlled studies that are very far from what this case is about. Mr. Vermillion should not be required to put on a mini-trial to demonstrate the unreliability of Dr. Morgan’s analysis, and the jury should not have to endure it. Instead, Dr. Morgan’s opinions should be excluded.
C. Dr. Morgan Is Not Qualified to Testify to Correctional Industry Standards Dr. Morgan is not qualified by experience or study to opine about correctional industry standards. See Ex. 4 at 194:12–20; cf. Cage v. City of Chicago, 979 F. Supp. 2d 787, 803 (N.D. Ill. 2013) (“experts may rely on their professional experience to offer opinion testimony regarding the standard of care and generally-accepted industry standards”). His experience working for a prison system is minimal, temporally remote, and limited to mental health operations. See Section I.A supra. He acknowledges he is not an expert in correctional practices. Ex. 4 at 194:18–20 (“Q: And I take it you do not hold yourself out as an expert in correctional practices? A: Correct.”). However, Dr. Morgan presumes the role of correctional expert, opining that Mr. Pacholke incorrectly states the correctional practices applicable at the time of Mr. Vermillion’s solitary confinement. See Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (explaining that the relevant question is “not whether an expert witness is qualified in general, but whether his qualifications provide a foundation for [him] to answer a specific question”) (internal quotation marks and citation omitted). He does so by pointing out that two sources Mr. Pacholke refers to
easily mesmerized by arrays of numbers that appear simply and accurately to represent highly complex and substantially different underlying realities. Haney (Ex. 11) at 399 (internal quotation marks and citation omitted). Substitute “jurors” for “readers” and Dr. Haney has explained the risk of misleading the jury with inaccurate meta-analytic data purporting to show the effects of solitary confinement.
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are dated after Mr. Vermillion’s release from solitary confinement. Ex. 1 at 15–16. Defense counsel are free to point out this issue in cross-examination, but Dr. Morgan will not add anything of substance to the jury’s understanding on this topic. “[I]f he is to give testimony to assist jury members and expand their knowledge. . . , [he] must testify to something more than what is ‘obvious to the layperson’ in order to be of any particular assistance to the jury.” Ancho, 157 F.3d at 519. Because Dr. Morgan admittedly lacks expertise on this topic, his opinion should be excluded.
III. CONCLUSION Defendants’ expert is unqualified, unfamiliar with the facts of this case, and espouses outlier opinions based on unreliable methods and data. He admits that his view of the harms of solitary confinement is “outside of the mainstream.” Ex. 4 at 98:17–99:5. Dr. Morgan should not be allowed to offer opinion testimony in this matter. In the alternative, he should be precluded from testifying as to (1) Mr. Vermillion’s mental health and Dr. Kupers’ assessment thereof; (2) the propensity of civil litigants to lie for financial gain; (3) the effects of segregation; (4) comparison of the effects of solitary confinement to the effects of general incarceration; and (5) correctional practices.
By: /s/ Maggie Filler Maggie Filler (pro hac vice) RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER 745 Atlantic Avenue, 8th Floor Boston, MA 02111 Phone: (857) 284-1455 Fax: (857) 284-8049 maggie.filler@macarthurjustice.org
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Case 1:15-cv-00605-RLY-TAB Document 312 Filed 06/21/19 Page 34 of 34 PageID #: 1883 CERTIFICATE OF SERVICE
I hereby certify that on June 21, 2019, the foregoing was filed using the Court’s CM/ECF electronic filing system. Copies of the filed documents will be electronically sent to all counsel of record in the CM/ECF system.
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 Dr. Robert Morgan 05/21/2019
·1· · · · · · · ·IN THE UNITED STATES DISTRICT COURT · · · · · · · ·FOR THE SOUTHERN DISTRICT OF INDIANA ·2
·3· ·JAY VERMILLION,· · · · ·) · · · · · · · · · · · · · · ·) ·4· · · Plaintiff,· · · · · ·) · · · · · · · · · · · · · · ·) ·5· ·VS.· · · · · · · · · · ·) Case No. 1:15-CV-0605-RLY-TAB · · · · · · · · · · · · · · ·) ·6· ·MARK LEVENHAGEN, et al, ) · · · · · · · · · · · · · · ·) ·7· · · Defendants.· · · · · )
·8· ·********************************************************
·9· · · ORAL AND VIDEOTAPED DEPOSITION OF DR. ROBERT MORGAN
10· · · · · · · · · · · · ·May 21, 2019
11· ·********************************************************
12
13
14· · · · · ORAL AND VIDEOTAPED DEPOSITION of DR. ROBERT
15· ·MORGAN, produced as a witness at the instance of the
16· ·PLAINTIFF, and duly sworn, was taken in the above-styled
17· ·and numbered cause on the 21st day of May, 2019 from
18· ·9:31 a.m. to 4:23 p.m. at the Overton Hotel and
19· ·Conference Center, 2322 Mac Davis Lane, Lubbock, Texas,
20· ·79401, before JAMIE JACKSON, CSR in and for the State of
21· ·Texas, reported by machine shorthand, pursuant to the
22· ·Federal Rules of Civil Procedure and the provisions
23· ·stated on the record or attached hereto.
24
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McCorkle Litigation Services, Inc.

1

Chicago, Illinois· (312) 263-0052 YVer1f

Dr. Robert Morgan 05/21/2019
·1· · · · · · · · · · ·A P P E A R A N C E S
·2· ·FOR THE PLAINTIFF:
·3· · · MS. MAGGIE E. FILLER · · · · Attorney at Law ·4· · · Roderick & Solange MacArthur Justice Center · · · · 745 Atlantic Avenue, 8th Floor ·5· · · Boston, MA· 02111 · · · · Phone:· (857) 284-1455 ·6· · · Email:· maggie.filler@law.northwestern.edu
·7 · · ·FOR THE DEFENDANTS: ·8 · · · · MR. DAVID C. DICKMEYER ·9· · · And · · · · MR. RYAN J. GUILLORY 10· · · Deputy Attorney General · · · · Office of the Indiana Attorney General 11· · · Indiana Government Center South, 5th Floor · · · · 302 West Washington Street 12· · · Indianapolis, Indiana· 46204-2770 · · · · Phone:· (317) 234-2265 13· · · Email:· david.dickmeyer@atg.in.gov
14 · · ·VIDEOGRAPHER: 15 · · · · Landmark Legal Support 16· · · P.O. Box 53743 · · · · Lubbock, Texas· 79453 17· · · Phone:· 806-777-1357 · · · · Email:· landmarklegal1@gmail.com 18
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Dr. Robert Morgan 05/21/2019
·1· · · · · · · · · · · · · · ·INDEX · · · · · · · · · · · · · · · · · · · · · · · · · · · ·PAGE ·2· ·Appearances....................................· · ·2
·3· ·WITNESS: · · · · DR. ROBERT MORGAN: ·4· · · · · Examination by Ms. Filler...............· · ·4 · · ·Deposition concluded...........................· ·200 ·5· ·Signature and Changes..........................· ·201 · · ·Reporter's Certificate.........................· ·203 ·6· ·******************************************************** · · · · · · · · · · · · · · ·EXHIBITS ·7· · · · · · · · · · · · · · · · · · · · · · ·IDF'D· EX.VOL. · · ·NO.· · · · DESCRIPTION· · · · · · · · · · IN DEPO· TAB ·8· ·Exhibit 1· Dr. Morgan's Report· · · · · · · · 8· · ·1 · · ·Exhibit 2· Corrections Today Article -· · · ·15· · ·2 ·9· · · · · · · "Questioning Solitary · · · · · · · · ·Confinement" 10· ·Exhibit 3· Opinion in Brazeau Matter· · · · ·60· · ·3 · · · · · · · · (Bates Vermillion 4375) 11· ·Exhibit 4· Dr. Morgan Expert Report in CCLA· 66· · ·4 · · · · · · · · versus the Queen Case 12· ·Exhibit 5· Dr. Morgan Cross-examination in· ·66· · ·5 · · · · · · · · CCLA versus the Queen Case 13· ·Exhibit 6· Exhibits in CCLA Case· · · · · · ·67· · ·6 · · · · · · · · (Bates Vermillion 3375) 14· ·Exhibit 7· COA decision in CCLA Case· · · · ·68· · ·7 · · ·Exhibit 8· Lower Court Opinion in CCLA Case· 69· · ·8 15· ·Exhibit 9· Dr. Morgan Expert Rebuttal Report 70· · ·9 · · · · · · · · in Alabama Matter 16· ·Exhibit 10 Dr. Morgan Deposition Testimony· ·71· · 10 · · · · · · · · in Alabama Matter 17· ·Exhibit 11 Dr. Morgan Declaration in Ashker· 74· · ·11 · · · · · · · · Case 18· ·Exhibit 12 Position Statement on Solitary· · 96· · ·12 · · · · · · · · Confinement from NCCHC 19· ·Exhibit 13 Indiana Protection & Advocacy· · ·106· · 13 · · · · · · · · Service Commission vs Commission 20· · · · · · · of the IDOC · · ·Exhibit 14 Melton Textbook· · · · · · · · · ·116· · 14 21· ·Exhibit 15 Kupers and Grassian Critique of· ·128· · 15 · · · · · · · · the Colorado Study 22· ·Exhibit 16 Dr. Haney Article: "Psychological 139· · 16 · · · · · · · · Effects of Solitary Confinement" 23· ·Exhibit 17 Communications between Dr. Morgan 153· · 17 · · ·_____· · · and Defense Counsel__________________________ 24· ·Exhibit 18 CONFIDENTIAL:· Dr. Kupers' Report 174· · 18 · · · · · · · · of Jay Vermillion· · · · · · · · · · · ______ 25· ·Exhibit 19 Chadick Study· · · · · · · · · · ·193· · 19

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Dr. Robert Morgan 05/21/2019
·1· · · · · · · ·VIDEOGRAPHER:· My name is Kathy Robertson, ·2· ·legal video specialist with McCorkle Litigation ·3· ·Services.· I am the videographer on May 21st, 2019 for ·4· ·the reporting of the deposition of Dr. Robert Morgan ·5· ·being taken at the Overton in Lubbock, Texas at the time ·6· ·of 9:31 a.m. in the matter of Jay Vermillion versus Mark ·7· ·Levenhagen, et al.· This is filed in the Southern ·8· ·District of Indiana, Case Number 1:15-CV-0605-RLY-TAB. ·9· ·Will counsel please introduce themself? 10· · · · · · · ·MS. FILLER:· Maggie Filler for the Plaintiff 11· ·Jay Vermillion. 12· · · · · · · ·MR. DICKMEYER:· David Dickmeyer on behalf of 13· ·the Defendants. 14· · · · · · · ·VIDEOGRAPHER:· Will the court reporter 15· ·please identify herself and swear in the witness? 16· · · · · · · ·MR. DICKMEYER:· One second before we swear 17· ·in the witness.· I also have Ryan Guillory from the 18· ·Attorney General's Office also representing the 19· ·Defendants. 20· · · · · · · ·COURT REPORTER:· I'm Jamie Jackson, the 21· ·court reporter, and will you raise your right hand? 22 23 24 25

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Dr. Robert Morgan 05/21/2019
·1· · · · · · · · · · · ·DR. ROBERT MORGAN ·2· ·Having been first duly sworn, testified as follows: ·3· · · · · · · · · · · · · EXAMINATION ·4· ·BY MS. FILLER: ·5· · · Q.· Good morning. ·6· · · A.· Good morning. ·7· · · Q.· My name is Maggie Filler.· I'm an attorney for ·8· ·the Plaintiff in this matter, Jay Vermillion.· Could you ·9· ·please state your first and last name spelling your last 10· ·name? 11· · · A.· Robert Morgan, M-o-r-g-a-n. 12· · · Q.· And have you been retained by the Defendants in 13· ·this case? 14· · · A.· I have. 15· · · Q.· Dr. Morgan, you have been deposed before, 16· ·correct? 17· · · A.· Yes, I have. 18· · · Q.· Approximately how many times? 19· · · A.· I believe this is my fifth deposition. 20· · · Q.· So then you're familiar with how a deposition 21· ·generally works, correct? 22· · · A.· Yes. 23· · · Q.· I'm just going to give you a couple points of 24· ·overview for how the deposition will go today, but I 25· ·trust that you have familiarity with the process.· Today

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Dr. Robert Morgan 05/21/2019
·1· ·I'll be asking you a bunch of questions about the ·2· ·opinions that you've reached in this matter.· The other ·3· ·lawyers here will be able to ask you questions as well, ·4· ·if they so choose.· The court reporter is taking down ·5· ·everything that's said and will prepare a transcript of ·6· ·what's been said today.· If you want to, you'll have an ·7· ·opportunity to review that transcript and make sure that ·8· ·you gave truthful and accurate testimony and correct any ·9· ·errors that you see in the transcript.· Do you 10· ·understand? 11· · · A.· I do. 12· · · Q.· Dr. Morgan, it's very important that you 13· ·understand the questions that I ask and that you give 14· ·accurate answers today.· So if at any point there's a 15· ·question that I ask that you don't understand, please 16· ·let me know, all right? 17· · · A.· I will. 18· · · Q.· And you're doing a great job so far, but just a 19· ·reminder to try and avoid unambiguous responses, such as 20· ·"um-hum" or "um," that might not come across in the 21· ·transcript. 22· · · A.· Okay. 23· · · Q.· Dr. Morgan, is there any reason why you'd be 24· ·unable to give truthful and accurate testimony today? 25· · · A.· No.

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Dr. Robert Morgan 05/21/2019
·1· · · Q.· What, if anything, did you do to prepare for ·2· ·today's deposition? ·3· · · A.· Exchanged emails with attorneys regarding the ·4· ·scheduling, and then I reviewed most of my file ·5· ·documents.· I believe we had one telephone call, but it ·6· ·wasn't substantive to the nature of the deposition. ·7· ·More the logistics, I believe. ·8· · · Q.· And is that your file that you brought here ·9· ·today? 10· · · A.· Yes. 11· · · Q.· Could you -- we can go over that in more detail, 12· ·but could you try and give me a catalog of what you 13· ·believe you reviewed in advance of the deposition from 14· ·that file? 15· · · A.· Yes.· I'm going to go ahead and look at the file. 16· · · Q.· Sure. 17· · · A.· I reviewed my expert report, I reviewed the 18· ·stipulated protective order document that was provided 19· ·to me, I reviewed the Plaintiff's Third Amended Prisoner 20· ·Civil Rights Complaint, the expert report of Dan 21· ·Pacholke, the expert report of Terry Kupers and the 22· ·deposition of Jay Vermillion. 23· · · Q.· Thank you. 24· · · A.· Oh, I'm sorry, if I can add one thing? 25· · · Q.· Yes, go ahead.

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Dr. Robert Morgan 05/21/2019
·1· · · A.· I looked through the list of sources that you ·2· ·submitted via an online link, a Dropbox.· I looked at ·3· ·the materials in that folder. ·4· · · Q.· Could you tell me approximately how long you ·5· ·spent looking at the materials in that folder? ·6· · · A.· Twenty minutes. ·7· · · Q.· Would you say you were familiar with most of ·8· ·them? ·9· · · A.· Yes, I did not see anything I was not familiar 10· ·with. 11· · · · · · · ·(EXPERT EXHIBIT NO. 1 MARKED.) 12· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I'm pass -- Dr. 13· ·Morgan, I'm passing you what's been marked as Expert 1. 14· ·Is this the report that you submitted in this case? 15· · · A.· Yes, it is. 16· · · Q.· And if you could turn to Attachment A to that 17· ·report, I believe that's your CV? 18· · · A.· Yes, it is. 19· · · Q.· Dr. Morgan, let's start by just going over some 20· ·of what's in your CV, okay? 21· · · A.· Yes. 22· · · Q.· Does this CV accurately describe your background 23· ·and your qualifications? 24· · · A.· Yes, it does. 25· · · Q.· And I believe that it is signed May 4th, 2019?

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Dr. Robert Morgan 05/21/2019
·1· ·The very -- page 29 of Attachment A. ·2· · · A.· Yes, that's correct. ·3· · · Q.· And so would you say that the CV then is ·4· ·up-to-date? ·5· · · A.· Yes. ·6· · · Q.· Is there anything missing that's more recent that ·7· ·is not included in the CV? ·8· · · A.· No. ·9· · · Q.· Dr. Morgan, you are a licensed psychologist in 10· ·the State of Texas; is that right? 11· · · A.· Yes. 12· · · Q.· Have you ever had your license suspended? 13· · · A.· No, I have not. 14· · · Q.· Have you ever been professionally disciplined? 15· · · A.· No, I have not. 16· · · Q.· Are there any lawsuits regarding your conduct as 17· ·a psychologist? 18· · · A.· Pending? 19· · · Q.· Have there ever been any lawsuits regarding your 20· ·conduct as a psychologist? 21· · · A.· There was a file when I was in the Kansas 22· ·Department of Corrections, an inmate had filed suit 23· ·against the Department and I was named in it.· I had 24· ·left the Department.· I was a doctoral student at 25· ·Oklahoma State University, found out after the fact that

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Dr. Robert Morgan 05/21/2019
·1· ·the State had failed to represent me, so there was a -·2· ·I don't know what it's called. ·3· · · Q.· A default judgment? ·4· · · A.· A default judgment.· So I wrote back and said, "I ·5· ·didn't know about this."· I was a member, and they took ·6· ·care of it.· And I don't -- I never heard anything else ·7· ·by way of outcome. ·8· · · Q.· Do you know anything about the substance of that ·9· ·complaint? 10· · · A.· Yes.· It was in regard to the practice of the 11· ·segregation review board in a segregation unit.· And as 12· ·the mental health professional assigned to that unit, I 13· ·was by default a member of the segregation review board. 14· ·So it named the segregation review board, plus the 15· ·warden, I believe, of the facility, and I was named with 16· ·everybody else on the review board. 17· · · Q.· Got it.· Thank you. 18· · · A.· Uh-huh. 19· · · Q.· Have you ever been named in any lawsuit other 20· ·than the case that you were just describing? 21· · · A.· No, I have not. 22· · · Q.· And Dr. Morgan, I understand that you are a 23· ·Professor of Psychology at Texas Tech here in Lubbock; 24· ·is that right? 25· · · A.· That's correct.

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Dr. Robert Morgan 05/21/2019
·1· · · Q.· And if we look at the first page of your CV, you ·2· ·have a heading for Education.· And if I understand this ·3· ·correctly, you have three degrees; is that right? ·4· · · A.· Yes. ·5· · · Q.· An undergraduate degree, a master's degree in ·6· ·Clinical Psychology, and a doctoral degree in Counseling ·7· ·Psychology, correct? ·8· · · A.· Yes, that's correct. ·9· · · Q.· Dr. Morgan, you are not a medical doctor, meaning 10· ·you didn't go through medical training, right? 11· · · A.· No, I did not. 12· · · Q.· And you received your doctoral degree in 13· ·Counseling Psychology from Oklahoma State University; is 14· ·that correct? 15· · · A.· Yes, it is. 16· · · Q.· Can you explain for me, a lay person, the 17· ·difference between Counseling Psychology and Clinical 18· ·Psychology, please? 19· · · A.· Yes.· The differences are really theoretical by 20· ·way of approach to one's work.· The outcome is by way of 21· ·what somebody will do with a clinical and counseling PhD 22· ·are essentially the same.· I've contributed to research 23· ·on that.· There's a body of literature to that.· We do 24· ·the same things, we do psychological assessments, we 25· ·provide psychotherapy, do crisis interventions,

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Dr. Robert Morgan 05/21/2019
·1· ·psychotherapy being individual and group.· We teach, we ·2· ·do research.· Essentially the practice is the same.· The ·3· ·approach is theoretically a little bit different. ·4· · · Q.· Can you explain that theoretical approach ·5· ·difference that you've described? ·6· · · A.· I can try.· It's not well articulated at the ·7· ·professional level or in the literature.· Typically, ·8· ·Clinical Psychology will take a bit more of a medical ·9· ·model, diagnose and treat the disorder, in a nutshell. 10· · · · · · · ·Counseling Psychology views itself as a 11· ·profession.· The Counseling Psychologists within the 12· ·field view ourselves as a bit more holistic in that we 13· ·want to consider the entirety of an individual's life 14· ·situation.· So things like work and family function can 15· ·also impact how one's coping or functioning with any 16· ·particular problem.· So it's not simply diagnose and 17· ·treat the problem, but more broadly treat the whole 18· ·individual. 19· · · · · · · ·Clinical Psychologists do that as well, but 20· ·historically they're more rooted in what we would call 21· ·the medical model, diagnose and treat, where we tend to 22· ·be a bit broader and more holistic. 23· · · Q.· Thank you for that description. 24· · · A.· Yes. 25· · · Q.· Dr. Morgan, turning to the Academic

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Dr. Robert Morgan 05/21/2019
·1· ·Position/Appointments section of your CV, it looks to me ·2· ·like your first academic position came after you ·3· ·received your master's degree when you were teaching at ·4· ·a Junior College in Kansas; is that correct? ·5· · · A.· Yes.· I taught one semester of Introductory ·6· ·Psychology course. ·7· · · Q.· And then after you finished your post-doc, you ·8· ·started at Texas Tech; is that right? ·9· · · A.· That's correct. 10· · · Q.· And so all of these academic positions from about 11· ·2000 forward will be here at Texas Tech? 12· · · A.· Yes, that's correct. 13· · · Q.· And then the next heading of your CV is 14· ·Publications and Presentations.· Do you see that? 15· · · A.· Yes, I do. 16· · · Q.· And that is further subdivided and begins with a 17· ·section on Refereed Journals.· Does the term "Refereed 18· ·Journals" refer to peer review journals? 19· · · A.· Yes, it does. 20· · · Q.· And does that mean that a piece is accepted for 21· ·-- when a piece is accepted for publication it has to be 22· ·subjected to peer review by others in the field? 23· · · A.· Correct. 24· · · Q.· And I've counted here you have a number of peer 25· ·review publications.· My count is 82.· Does that sound

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Dr. Robert Morgan 05/21/2019
·1· ·about right? ·2· · · A.· That sounds about right. ·3· · · Q.· And these are listed in reverse chronological ·4· ·order by publication date; is that right? ·5· · · A.· Yes. ·6· · · Q.· And if we look at the third page of your CV, I ·7· ·see one article with a lead author Chadick entitled "The ·8· ·psychological impact of solitary:· A longitudinal ·9· ·comparison of general population and long-term 10· ·administratively segregated male inmates," and that has 11· ·a 2018 publication date.· Is that one of the articles 12· ·that you've cited in your opinions in this case? 13· · · A.· Yes, I did. 14· · · Q.· And also seen on page 3, I see a 2017 piece where 15· ·you are the lead author, and it appeared in Corrections 16· ·Today, "Questioning solitary confinement:· Is 17· ·administrative segregation as bad as alleged;" is that 18· ·right? 19· · · A.· Yes. 20· · · Q.· And Dr. Morgan, is Corrections Today the magazine 21· ·of the American Corrections Association? 22· · · A.· Yes. 23· · · Q.· And so as I understand it then, the peer review 24· ·process would involve other correctional professionals; 25· ·is that right?

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Dr. Robert Morgan 05/21/2019
·1· · · A.· Yes. ·2· · · Q.· This isn't a peer review process where that ·3· ·article was subjected to peer review by other research ·4· ·psychologists, right? ·5· · · A.· No, other professionals in the field, not ·6· ·necessarily psychologists. ·7· · · Q.· And the circulation of this magazine would be ·8· ·primarily to correctional administrators and officials; ·9· ·is that right? 10· · · A.· It would include that -- that group, but other 11· ·folks might access or subscribe to the journal as well. 12· · · Q.· Are you a member of the ACA? 13· · · A.· I am not. 14· · · Q.· And this piece, as I understood it, essentially 15· ·described the results of your 2016 meta-analysis; is 16· ·that right? 17· · · A.· That was one piece -- component of it. 18· · · Q.· What were the other components? 19· · · A.· Following up on an article by Dr. Metzer to 20· ·outline best practices for mental health services in 21· ·segregation. 22· · · Q.· Is Dr. Metzer the same Dr. Metzer who was 23· ·involved in the Colorado study from 2010? 24· · · A.· Yes, he was. 25· · · · · · · ·(EXPERT EXHIBIT NO. 2 MARKED.)

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Dr. Robert Morgan 05/21/2019
·1· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I'm going to pass ·2· ·you what's been marked as Expert Exhibit 2, and could ·3· ·you please tell me if this is the article we've just ·4· ·been discussing, "Questioning solitary confinement:· Is ·5· ·administrative segregation as bad as alleged," that ·6· ·appeared in Corrections Today? ·7· · · A.· Yes, it is. ·8· · · Q.· If you could turn to page 21, and I notice here ·9· ·that you have recommendations for the use of 10· ·administrative segregation? 11· · · A.· Yes. 12· · · Q.· Is this some of what you were just describing 13· ·that you include recommendations in this piece? 14· · · A.· Yes, that's correct. 15· · · Q.· And if we look at the second recommendation 16· ·towards the bottom, "the recommendation is to provide 17· ·therapeutic and stepdown programs for inmates serving 18· ·significant time in AS."· What would "significant time" 19· ·be? 20· · · A.· I didn't conceptualize a time period when I wrote 21· ·this.· If I was to think about it now and put a time 22· ·period to it, I would certainly say a year or more, 23· ·possibly.· I would need to think it through, but 24· ·possibly as much as six months. 25· · · Q.· And you cite an example of therapeutic programs

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Dr. Robert Morgan 05/21/2019
·1· ·as including, "Stepping Up, Stepping Out, A mental ·2· ·health treatment program for inmates detained in ·3· ·restrictive housing."· Is that your program, Dr. Morgan? ·4· · · A.· That one is, yes. ·5· · · Q.· And is there a book in which you describe this ·6· ·stepdown program? ·7· · · A.· Yes, we have a treatment manual.· And to be ·8· ·clear, it's -- I'm the second author.· So there's a ·9· ·first author, so it's a team approach.· Yes, we have the 10· ·treatment manual, and that manual is being published by 11· ·a publisher. 12· · · Q.· Is that coming out this summer? 13· · · A.· I don't know when that's coming out.· It's -14· ·it's in the publisher's hands, and we've made whatever 15· ·rec -- revisions that they requested, so now it's just 16· ·waiting to go through the printing process.· I don't 17· ·know if it will be out this summer or later in the fall. 18· · · Q.· And if I'm understanding you correctly, there is 19· ·already, though, a therapeutic manual that is available 20· ·to prisons that wish to implement this stepdown 21· ·approach? 22· · · A.· Yes, absolutely. 23· · · Q.· I want to talk more about this Stepping Up, 24· ·Stepping Out as we go forward today.· But would you 25· ·agree that at least one of the purposes of including

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Dr. Robert Morgan 05/21/2019
·1· ·this Stepping Up, Stepping Out Program here in the ·2· ·Corrections Today piece is that you were hoping that ·3· ·correctional administrators would read your article and ·4· ·develop an interest in your recommendation for the ·5· ·Stepping Up, Stepping Out Program? ·6· · · A.· No, actually.· I don't think a correctional ·7· ·administrator will be inclined to pass that onto their ·8· ·mental health professionals.· There's other ways to ·9· ·advertise, if I were to advertise the program.· I simply 10· ·listed that and the other treatment program here as an 11· ·example of what we're referring to when we say "You need 12· ·to provide therapeutic services in segregated or 13· ·restricted housing units." 14· · · Q.· So the market for your Stepping Up, Stepping Out 15· ·Program is mental health professionals as opposed to 16· ·correctional administrators? 17· · · A.· Yes. 18· · · Q.· And are you marketing actively to correctional -19· ·excuse me, are you marketing actively to mental health 20· ·professionals the Stepping Up, Stepping Out Program? 21· · · A.· What do you mean by "marketing"?· I'm not sending 22· ·out fliers, I'm not emailing people.· I get contacted by 23· ·people, and then I'll distribute whatever -- whatever 24· ·they want or need, including that program.· It's never 25· ·really been my practice to market, so I -- I would say,

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Dr. Robert Morgan 05/21/2019
·1· ·no, I don't market it. ·2· · · Q.· Do you know if correctional mental health ·3· ·professionals receive the Corrections Today magazine? ·4· · · A.· I don't know if they do or don't. ·5· · · Q.· Do you? ·6· · · A.· I do not.· I look at it -- if I can elaborate? ·7· · · Q.· Yes, please. ·8· · · A.· I look at it on occasion online to look at the ·9· ·table of contents, but I don't -- I don't subscribe to 10· ·the journal. 11· · · Q.· Dr. Morgan, looking at page 4 of your CV staying 12· ·under the Peer Reviewed Publications, I see the third 13· ·listing from the top is "Quantitative synthesis of the 14· ·effects of administrative segregation on inmates while 15· ·being published in psychology, public, policy and law." 16· ·And would this be your 2016 meta-analysis study? 17· · · A.· Yes, that's correct. 18· · · Q.· Are there any other peer reviewed publications 19· ·regarding administrative segregation in your CV? 20· · · A.· No. 21· · · Q.· The next section of your CV starting on page 9 is 22· ·"Books," correct? 23· · · A.· Yes. 24· · · Q.· And I've counted here 11 books that you have 25· ·published.· The first one is listed as the "Stepping Up,

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Dr. Robert Morgan 05/21/2019
·1· ·Stepping Out, a mental health treatment program for ·2· ·inmates in restrictive housing."· Is this the book that ·3· ·we were just discussing that's currently in press? ·4· · · A.· Yes, it is. ·5· · · Q.· Can you describe the Stepping Up, Stepping Out ·6· ·Program? ·7· · · A.· Yes.· It's a modification of a comprehensive ·8· ·treatment program for individuals with serious mental ·9· ·illness that are in the justice system, changing life, 10· ·changing outcomes.· That was a treatment program that I 11· ·began developing in -- roughly around 2005, 2006 and was 12· ·published in 2018.· That was for -- again, specifically 13· ·for individuals with serious mental illness in 14· ·corrections generally. 15· · · · · · · ·And doing some -- some work with Correct 16· ·Care at the time, who was working with the Kansas 17· ·Department of Corrections, I was a consultant on some 18· ·work they were doing around the issue of segregation. 19· ·And through that work, it became clear that they needed 20· ·a treatment program, or that the field needed a 21· ·treatment program, so one of my students at the time, 22· ·who's no longer a student, now a colleague, we modified 23· ·changing lives, changing outcomes to fit for inmates in 24· ·segregation.· So we changed the content a little bit to 25· ·focus on both coping with segregation, but also changing

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·1· ·behaviors that results in ones being placed in ·2· ·segregation.· So it was both treatment and ·3· ·rehabilitation oriented. ·4· · · · · · · ·And because of the nature of segregation, we ·5· ·needed to develop a program that could be administered ·6· ·with minimal therapeutic time in face-to-face work with ·7· ·the client.· So it's largely a self-study by way of ·8· ·format, but guided by a clinician.· That's the general ·9· ·summary. 10· · · Q.· And if I understand you correctly, this is a 11· ·treatment program that is meant for prisoners to do 12· ·inside of their cells while they're in segregation? 13· · · A.· Yes, that's correct. 14· · · Q.· In other words, it's not meant to be out-of-cell 15· ·group therapy based? 16· · · A.· We didn't design it that way.· It certainly could 17· ·be structured that way, and the content most definitely 18· ·would be relevant, but we didn't structure it that way. 19· ·I wouldn't recommend against clinicians using the 20· ·program in that manner.· It's just not how we structured 21· ·it. 22· · · Q.· Do you know how many prison systems are currently 23· ·using this Stepping Up, Stepping Out Program? 24· · · A.· I know of one, for sure, and my colleague Dr. 25· ·Batastini is in discussions with others.· But I know of

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Dr. Robert Morgan 05/21/2019
·1· ·one, for sure. ·2· · · Q.· Which one is that? ·3· · · A.· Missouri Department of Corrections. ·4· · · Q.· Is your colleague Dr. Batastini the former ·5· ·student you were referring to? ·6· · · A.· Yes. ·7· · · Q.· And where does Dr. Batastini work? ·8· · · A.· She's at Southern Mississippi University. ·9· · · Q.· And how is Dr. Batastini identifying other 10· ·prisons to try and have them use your Stepping Up, 11· ·Stepping Out Program? 12· · · · · · · ·MR. DICKMEYER:· Objection.· Form.· Calls for 13· ·speculation.· You can answer. 14· · · · · · · ·THE WITNESS:· They're reaching out to her. 15· ·She lets me know when somebody's contacted her, because 16· ·I have more experience in navigating those discussions 17· ·and any consultations.· So she simply responds to 18· ·requests from agencies or individuals. 19· · · Q.· (BY MS. FILLER:)· And how do people know to 20· ·contact Dr. Batastini? 21· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 22· ·speculation.· You can answer. 23· · · · · · · ·THE WITNESS:· Word-of-mouth.· Maybe they've 24· ·seen it or seen reference to it. 25· · · Q.· (BY MS. FILLER:)· Any presentations or things

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Dr. Robert Morgan 05/21/2019
·1· ·like that that you might be giving at workshops or ·2· ·conferences? ·3· · · A.· Yes, we've given a few presentations at ·4· ·conferences.· It's listed in a couple of different ·5· ·publications. ·6· · · Q.· How many prison systems is Dr. Batastini in talks ·7· ·with as to having them use the Stepping Up, Stepping Out ·8· ·Program? ·9· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 10· ·speculation.· You can answer. 11· · · Q.· (BY MS. FILLER:)· To your knowledge? 12· · · A.· One for sure, and I believe she's talked to a few 13· ·others, but I don't know where that's at.· But one that 14· ·she's in more extended discussion with. 15· · · Q.· Returning to the book section of your CV, it 16· ·looks like there are -- five of the books listed here 17· ·are different editions of the text "Careers in 18· ·Psychology;" is that right? 19· · · A.· Yes. 20· · · Q.· Is that a book of advice for people who are 21· ·considering different psychology careers? 22· · · A.· That's a good way to say it, yes. 23· · · Q.· Are any of these other books related to the topic 24· ·of solitary confinement or segregation? 25· · · A.· Not specifically.

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Dr. Robert Morgan 05/21/2019
·1· · · Q.· Are any -- do any involve the discussion of ·2· ·segregation in prisons? ·3· · · A.· Yes. ·4· · · Q.· Which would that be? ·5· · · A.· The Encyclopedia of Criminal Psychology at the ·6· ·top of page 10. ·7· · · Q.· Any others? ·8· · · A.· No. ·9· · · Q.· And the Encyclopedia of Criminal Psychology says 10· ·it's in press; is that right? 11· · · A.· Yes. 12· · · Q.· Do you know when it will be coming out? 13· · · A.· Any day.· Any day.· I heard that it was available 14· ·online, but I haven't had a chance to check yet.· That 15· ·would have been just in the last couple of days. 16· · · Q.· Is this a encyclopedia of different chapters of 17· ·which you're the editor? 18· · · A.· Yes. 19· · · Q.· And are there specific chapters dedicated to 20· ·segregation? 21· · · A.· Yes, that's correct.· I wouldn't say chapters. I 22· ·would say entries, simply because they're less detailed 23· ·than a traditional book chapter.· But yes, there's a 24· ·number of entries and -- 540, I believe, is the number 25· ·of entries and some deal with the issue of segregation.

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Dr. Robert Morgan 05/21/2019
·1· · · Q.· Thank you for the clarification.· You mention in ·2· ·your report that Dr. Kupers is contributing to this ·3· ·Encyclopedia; is that right? ·4· · · A.· Yes, he did. ·5· · · Q.· Is his contribution at all related to the topic ·6· ·of segregation? ·7· · · A.· His contribution was about imprisonment broadly. ·8· ·I believe -- I would have to check the entry, but I ·9· ·believe he discussed briefly in there segregation. 10· · · Q.· Who are the other authors who are writing about 11· ·segregation in your Encyclopedia? 12· · · A.· You would think I would know that, but with 540 13· ·entries, I -- I would have to look. 14· · · Q.· Are there 550 separate authors -- 540? 15· · · A.· No, no.· I would estimate 350, maybe 400 authors. 16· ·I don't remember who -- that's embarrassing.· I don't 17· ·remember who wrote the segregation entries. 18· · · Q.· And then the next section of your CV under 19· ·"Publications" lists chapters and books; is that right? 20· · · A.· Yes. 21· · · Q.· And this is a listing of where you've contributed 22· ·chapters to books that other folks have edited? 23· · · A.· Yes. 24· · · Q.· And to my review, it looks like none of these 25· ·pertain to administrative segregation or solitary

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Dr. Robert Morgan 05/21/2019
·1· ·confinement, but could you please tell me if that's ·2· ·accurate? ·3· · · A.· None of them are specific to the issue of ·4· ·segregation.· A couple would discuss segregation in ·5· ·them. ·6· · · Q.· Could you just tick off the ones that would ·7· ·include a discussion? ·8· · · A.· Morgan, Bolanos, Grabowski in press on page 10. ·9· ·I believe we discussed segregation in that one.· On page 10· ·11, Morgan, Van Horn, MacLean, Hunter and Bower.· We 11· ·discussed segregation in that one.· I believe that's 12· ·all. 13· · · Q.· And both of those are in press, right? 14· · · A.· Correct. 15· · · Q.· So not available to me, right? 16· · · A.· I could send them to you. 17· · · Q.· That would be helpful.· And then the next section 18· ·is "Non-refereed Publications."· So these would be 19· ·publications that were not subjected to peer review; is 20· ·that right? 21· · · A.· Yes. 22· · · Q.· And none of these discuss administrative 23· ·segregation; is that right? 24· · · A.· Correct. 25· · · Q.· And then we move on to the "Conference

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Dr. Robert Morgan 05/21/2019
·1· ·Presentations," and there are a number of these that you ·2· ·have listed here from the past three years.· I noticed a ·3· ·presentation on page 13 from March of 2018, "Inmates' ·4· ·Mental Health Functioning in Prison and the Effects of ·5· ·Administrative Segregation."· Do you see that ·6· ·presentation?· It's the sixth entry. ·7· · · A.· Yes. ·8· · · Q.· And can you describe the topic of that ·9· ·presentation, please? 10· · · A.· Yes.· That's an assessment of inmates in 11· ·Correctional Services of Canada, pre and post 12· ·segregation placement, with mental health measures. 13· · · Q.· Was that assessment conducted as part of your 14· ·involvement in the Canada litigation regarding 15· ·segregation? 16· · · A.· No, it was not. 17· · · Q.· And is that -- are the findings from that 18· ·published anywhere? 19· · · A.· No.· We have completed a manuscript, and we 20· ·submitted it to the Correctional Services of Canada 21· ·because the lead author, Dr. Jeremy Mills, is a CSC 22· ·employee.· The work was sanctioned by CSC.· So before we 23· ·can publish it, he needs to gain approval. 24· · · Q.· And what were the findings of your research? 25· · · A.· That -- we looked at a couple of things.· That

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Dr. Robert Morgan 05/21/2019
·1· ·incarceration over time did not negatively impact one's ·2· ·behavioral functioning or mental health functioning over ·3· ·time.· And when you compare -- when we compared inmates ·4· ·who had been in segregation on mental health measures at ·5· ·time of release from the institution relative to their ·6· ·pretest, so upon entry, so we tested them when they came ·7· ·into the prison, we tested them when they left the ·8· ·prison, whether they'd been placed in segregation or not ·9· ·did not impact their mental health functioning. 10· · · Q.· Upon release from prison? 11· · · A.· Upon release. 12· · · Q.· And I didn't see this study described anywhere in 13· ·the report that you submitted in this case; is that 14· ·right? 15· · · A.· That's correct. 16· · · Q.· So are you not planning to rely on the work that 17· ·you've done in that study in this case as it wasn't in 18· ·your report? 19· · · A.· I don't have authorization to use the report, so 20· ·I am not using it. 21· · · Q.· And then on page 14 of your presentations, I 22· ·noticed one entitled, "Administrative Segregation:· Who 23· ·is in?· A poster presentation at the annual meeting of 24· ·the APA in Washington."· What was the subject of that 25· ·poster presentation?

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·1· · · A.· That's using an archive data set from the ·2· ·Department of Justice and looking at -- it's a national ·3· ·survey of inmates and looking at who gets placed in ·4· ·segregation.· It's a descriptive study. ·5· · · Q.· Describing things like demographics of the ·6· ·population? ·7· · · A.· Yes. ·8· · · Q.· And then there's another conference presentation ·9· ·from July of 2017, "Administrative Segregation: A 10· ·research synthesis and a review of who is in."· Is that 11· ·similar to the poster presentation that you gave at the 12· ·APA? 13· · · A.· That's a summary of both, that study we were just 14· ·talking about with the archival data set and the review 15· ·of the meta-analyses that we had previously completed. 16· · · Q.· The meta-analysis that was published in 2016? 17· · · A.· Yes. 18· · · Q.· And there's one more from the same summer of 19· ·2017.· Looks like you had a busy summer, Doctor. 20· ·"Administrative segregation:· Who is in and for how 21· ·long," presented at the annual meeting of the Canadian 22· ·Psychological Association.· What was the topic of that 23· ·presentation? 24· · · A.· That's again using that archival data set and 25· ·looking at descriptively who's getting sentenced to

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Dr. Robert Morgan 05/21/2019
·1· ·segregation and for how long. ·2· · · Q.· Did I miss any presentations listed in your CV ·3· ·that would relate to administrative segregation?· And ·4· ·actually, I'll note I think there is one more on page ·5· ·16. ·6· · · A.· Yes. ·7· · · Q.· Batastini, Morgan and Levulis? ·8· · · A.· Yes, there's that one.· I don't see any others in ·9· ·the last three years. 10· · · Q.· So the 2016 presentation with Batastini and 11· ·Levulis was regarding "The psychological impact of 12· ·solitary:· A longitudinal comparison of general 13· ·population and long-term administratively segregated 14· ·inmates."· Would that pertain to the meta-analyses from 15· ·2016? 16· · · A.· No, that pertains to the Chadick Paper from 2018. 17· · · Q.· Regarding the Kansas longitudinal study? 18· · · A.· Correct. 19· · · Q.· And the next section of your CV is "Workshops 20· ·Presented," and I see on page 17 of your CV the title 21· ·"Stepping Up, Stepping Out:· A Mental Health Treatment 22· ·Program for Inmates Detained in Restricted Housing." 23· ·Looks like you and Dr. Batastini gave a one-day training 24· ·workshop regarding the Stepping Up, Stepping Out 25· ·Program; is that right?

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Dr. Robert Morgan 05/21/2019
·1· · · A.· Yes. ·2· · · Q.· And it was sponsored by Corizon Health Care, ·3· ·which is a private medical contractor to prisons? ·4· · · A.· Correct. ·5· · · Q.· Who attended that training? ·6· · · A.· That was attended by mental health treatment ·7· ·providers that were providing mental health services in ·8· ·segregation units at -- I believe it was four different ·9· ·institutions within the Missouri Department of 10· ·Corrections. 11· · · Q.· So after Missouri decided to start using the 12· ·Stepping Up, Stepping Out Program, did you offer this 13· ·training for how to use the program? 14· · · A.· Yes, that's correct. 15· · · Q.· Does Corizon Health Care provide contracts with 16· ·the State of Missouri to provide mental health services? 17· · · A.· They did at that time. 18· · · Q.· Are you aware that Corizon once had a contract 19· ·with the State of Indiana to provide health services to 20· ·Indiana prisons? 21· · · A.· No. 22· · · Q.· Do you have any relationship with Wexford Health 23· ·Services? 24· · · A.· I don't believe so. 25· · · Q.· And then returning to the workshops listings, on

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·1· ·page 18 there's a workshop entitled "Escaping the Cage: ·2· ·A Mental Health Treatment Program for Inmates Detained ·3· ·in Restricted Housing" that you gave in Maine to the ·4· ·Maine Department of Corrections.· Can you describe the ·5· ·topic of that workshop, please? ·6· · · A.· That was a summary of -- that was a summary of ·7· ·effects of segregation on inmate mental health ·8· ·functioning and outlining what clinicians need to be ·9· ·considering and doing when working in a segregation 10· ·unit, and I presented the structure or the nature of our 11· ·treatment program. 12· · · Q.· Did you receive any compensation for presenting 13· ·either of these two workshops? 14· · · A.· I did not for the presentation at Corizon. I 15· ·believe I did for the presentation in Maine. 16· · · Q.· And then turning to -- well, excuse me.· Were 17· ·there any other workshops in this section that pertain 18· ·to administrative segregation or segregation? 19· · · A.· No. 20· · · Q.· And then under "Invited Addresses," I scanned 21· ·this and it didn't look to me as though there were any 22· ·addresses pertaining to segregation in prisons, but 23· ·please tell me if I'm correct? 24· · · A.· And if I can back up to one workshop? 25· · · Q.· Yes, please.

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·1· · · A.· On page 17, the second one listed, "Treating ·2· ·Justice Involved Persons with Mental Illness in Criminal ·3· ·Justice Settings," sponsored by WellPath, that was three ·4· ·days.· It was the same workshop to basically all of the ·5· ·mental health professionals employed by WellPath to ·6· ·provide mental health services in the Massachusetts -·7· ·or yeah, Massachusetts prisons.· And in that eight ·8· ·hours, I was asked to discuss, and so I think I ·9· ·discussed for an hour, maybe an hour and a half, issues 10· ·related to providing mental health services to inmates 11· ·in segregation. 12· · · Q.· Did WellPath used to have a different name? 13· · · A.· Correct Care. 14· · · Q.· Correct Care.· And so is WellPath contracting 15· ·with the State of Massachusetts to provide mental health 16· ·services to their prison population? 17· · · A.· Yes. 18· · · Q.· And were you compensated for that three-day 19· ·workshop? 20· · · A.· Yes. 21· · · Q.· I hope so.· Three days. 22· · · A.· I haven't submitted a bill yet.· With my pause, I 23· ·realize, yes, I need to.· But I will be, yes. 24· · · Q.· All right.· So any other workshops pertaining to 25· ·administrative segregation --

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Dr. Robert Morgan 05/21/2019
·1· · · A.· No. ·2· · · Q.· -- besides those three? ·3· · · · · · · ·"Invited addresses," do any of your invited ·4· ·addresses that you've listed here pertain to segregation ·5· ·in prisons? ·6· · · A.· No. ·7· · · Q.· And then if we turn to page 21 of your CV, you've ·8· ·listed research funding, right? ·9· · · A.· Correct. 10· · · Q.· Did any of these research grants pertain to 11· ·studying segregation in prison? 12· · · A.· No. 13· · · Q.· Have you ever applied for funding to perform 14· ·studies on segregation in prisons and been denied 15· ·funding? 16· · · A.· Yes. 17· · · Q.· Can you please describe that grant application to 18· ·me, please? 19· · · A.· Yeah, there's been a few.· They were all centered 20· ·around the same issue, trying to further understand and 21· ·further assess mental health effects, health effects as 22· ·well, that result from the use of segregation. 23· · · Q.· What funding sources did you apply to? 24· · · A.· National Institute of Justice. 25· · · Q.· And is that the research arm of the Department of

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·1· ·Justice? ·2· · · A.· Yes. ·3· · · Q.· Did you apply for funding from NIJ to do the ·4· ·Kansas longitudinal study that we were talking about? ·5· · · A.· The published? ·6· · · Q.· (Nodding head.) ·7· · · A.· No. ·8· · · Q.· Did you apply to NIJ to do the meta-analyses? ·9· · · A.· No. 10· · · Q.· Can you describe the research that you proposed 11· ·to NIJ in a little bit more detail?· For example, was 12· ·there a specific prison system that you planned to 13· ·study? 14· · · A.· I submitted a couple of different applications, 15· ·and it was a longitudinal study to follow people over 16· ·time.· One was proposed to be completed in Kansas. I 17· ·might have had a couple that were proposed for Kansas. 18· ·I can't remember if they were outside of Kansas or just 19· ·Kansas. 20· · · Q.· And when did you -- when was the latest decision 21· ·that you received indicating that the NIJ wouldn't be 22· ·able to fund the research? 23· · · A.· On the issue of segregation? 24· · · Q.· Yes, please. 25· · · A.· I believe my last proposal for that was 2017.

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·1· · · Q.· And were you informed of the reasons why they ·2· ·decided they couldn't fund your grant application? ·3· · · A.· Yes. ·4· · · Q.· And what were those reasons? ·5· · · A.· I would have to look at the reviews.· I submit a ·6· ·number of grants.· I don't -- I don't recall.· In a ·7· ·general sense, I know there were some methodological ·8· ·concerns.· Beyond that, I don't recall the specifics of ·9· ·concerns that were raised. 10· · · Q.· Is there a peer review process when you submit a 11· ·grant for funding from the NIJ? 12· · · A.· Yes. 13· · · Q.· And so the decision not to fund would come after 14· ·the proposal had been reviewed by a group of peers? 15· · · A.· Correct. 16· · · Q.· Were the longitudinal studies that you proposed 17· ·doing reliant on self-scoring instruments? 18· · · A.· That would have been part of it, yes. 19· · · Q.· And were they generally proposed studies to look 20· ·at control groups in prison over time to assess the 21· ·effect of segregation? 22· · · A.· Yes. 23· · · Q.· If I could draw your attention to the contract 24· ·section of your CV on page 23, it looks to me that you 25· ·have a contract with the Crosby County Community

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·1· ·Supervision and Corrections Department to provide ·2· ·substance abuse and mental health services to Crosby ·3· ·County probationers? ·4· · · A.· Yes. ·5· · · Q.· And is that a contract that you supervise your ·6· ·students in administering those services? ·7· · · A.· Yes. ·8· · · Q.· And the services are being provided to folks who ·9· ·are out in the community, correct? 10· · · A.· Two -- there's two settings.· One is a regular 11· ·probation office, so the clients are seen in the 12· ·community.· The other is a residential treatment 13· ·facility, so the services are provided while they're in 14· ·that placement. 15· · · Q.· None of the services are provided to people in 16· ·segregation in prison, right? 17· · · A.· Correct. 18· · · Q.· If we turn to "Professional Experience and 19· ·Positions" section of your CV, Dr. Morgan, beginning on 20· ·page 24.· I see here that last year, you were appointed 21· ·to the Board of Directions (sic.) for the National 22· ·Commission on Correctional Health Care Educational 23· ·Foundation.· Can you describe what the National 24· ·Commission on Correctional Health Care is? 25· · · A.· Yes.· And actually there's a typo.· That should

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Dr. Robert Morgan 05/21/2019
·1· ·say 2019.· That appointment was just in the last six ·2· ·weeks or so. ·3· · · · · · · ·The National Commission on Correctional ·4· ·Health Care provides training and resources to ·5· ·individuals involved in correctional healthcare, broadly ·6· ·speaking, to include mental health.· That's the primary ·7· ·mission. ·8· · · Q.· Would you agree that it's the preeminent ·9· ·organization for mental healthcare professionals working 10· ·in corrections? 11· · · A.· Say that one more time? 12· · · · · · · ·MS. FILLER:· Could you repeat it back? 13· · · · · · · ·COURT REPORTER:· "Would you agree that it's 14· ·the preeminent organization for mental healthcare 15· ·professionals working in corrections?" 16· · · · · · · ·THE WITNESS:· I wouldn't disagree with that. 17· · · Q.· (BY MS. FILLER:)· Is there another organization 18· ·that is also an organization of mental health 19· ·professionals working in the correction setting? 20· · · A.· Not -- not at the scale of NCCHC, but a 21· ·psychiatric -- the American Psychiatric Association, the 22· ·American Psychological Association certainly provides 23· ·resources, education, legal assistance, things of that 24· ·nature.· But that's -- that's a broader scope for those 25· ·organizations.· So if you're looking just specifically

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Dr. Robert Morgan 05/21/2019
·1· ·at individuals providing health and mental healthcare, ·2· ·again, I wouldn't disagree that NCCHC is the preeminent ·3· ·body. ·4· · · Q.· And what is the Education Foundation? ·5· · · A.· That is a foundation that is just being ·6· ·developed, and they've just appointed the board of ·7· ·directors.· Well, actually I don't know if they've ·8· ·appointed everybody.· I know they appointed me to the ·9· ·board of directors.· The president called and asked if I 10· ·would serve and appointed me.· So it's going to be a 11· ·group -- a foundation that furthers the educational 12· ·mission of NCCHC. 13· · · Q.· And I see that since 2013 you've been a 14· ·consultant for WellPath, which, as you said, is formerly 15· ·Correct Care Solutions, in Nashville, Tennessee.· Is 16· ·that the headquarters of WellPath, Nashville? 17· · · A.· Yes. 18· · · Q.· And what is the nature of your contract with 19· ·WellPath? 20· · · A.· In 2013 when it was Correct Care, I was again 21· ·assisting them, as I mentioned earlier, with reviewing 22· ·mental health services in segregation in Kansas.· Post 23· ·that, it's been mainly providing training services to 24· ·their employers -- or employees. 25· · · Q.· And which state systems have you provided those

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·1· ·services to? ·2· · · A.· Maine and Massachusetts? ·3· · · Q.· And I see you were also at one time from 2013 to ·4· ·2015 a consultant with the State of California ·5· ·Department of Justice.· Was that in relation to the ·6· ·lawsuit regarding Pelican Bay? ·7· · · A.· Yes, it was. ·8· · · · · · · ·MS. FILLER:· Let's take a five-minute break. ·9· · · · · · · ·THE WITNESS:· Okay. 10· · · · · · · ·VIDEOGRAPHER:· We're now off the record at 11· ·10:28. 12· · · · · · · ·(Break.) 13· · · · · · · ·VIDEOGRAPHER:· We're now back on record at 14· ·10:34. 15· · · · · · · ·THE WITNESS:· May I revisit one of our 16· ·previous questions -17· · · Q.· (BY MS. FILLER:)· Yes. 18· · · A.· -- regarding authors of entries regarding 19· ·segregation in the Encyclopedia? 20· · · Q.· Uh-huh. 21· · · A.· I believe one was written by Dr. Paul Chandrow 22· ·(phon.).· I believe one was written by Dr. Jeremy Mills. 23· ·I submitted one.· And I believe there were maybe one or 24· ·two other entries, but I don't recall who authored 25· ·those.

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·1· · · Q.· How about Craig Haney, did he submit anything ·2· ·regarding segregation? ·3· · · A.· No. ·4· · · · · · · ·VIDEOGRAPHER:· Do you have your mike on? ·5· · · · · · · ·MS. FILLER:· I do not. ·6· · · Q.· (BY MS. FILLER:)· I didn't have my mike on for ·7· ·that question, so I'll repeat it.· Did Dr. Craig Haney ·8· ·submit any of the entries regarding segregation to your ·9· ·Encyclopedia? 10· · · A.· No, he did not. 11· · · Q.· Did you ask him to do so? 12· · · A.· Not on segregation.· I asked him on at least one 13· ·other entry, but not on segregation. 14· · · Q.· What entry was that? 15· · · A.· Death penalty. 16· · · Q.· Thank you for that clarification.· Dr. Morgan, if 17· ·we could look at the professional experience and 18· ·position section of your CV again, staying on page 24, 19· ·you have listed here that from 2001 to the present 20· ·you've had your own practice doing Criminal Forensic 21· ·Psychology here in Lubbock, Texas; is that right? 22· · · A.· Yes. 23· · · Q.· Is that primarily competency exams for criminal 24· ·defendants? 25· · · A.· It would include competency exams, criminal

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·1· ·responsibility and criminal risk. ·2· · · Q.· All pertaining to criminal cases, correct? ·3· · · A.· Correct. ·4· · · Q.· And that work in your private practice doing ·5· ·Criminal Forensic Psychology does not include assessing ·6· ·the effects of solitary confinement or segregation, ·7· ·correct? ·8· · · A.· Well, that would include my work on the various ·9· ·cases that I've been an expert in. 10· · · Q.· So when you list your crim -- your Criminal 11· ·Forensic Psychology practice, you're listing the work 12· ·you've done on behalf of criminal defendants, as well as 13· ·the work you've done in cases such as this one? 14· · · A.· Correct. 15· · · Q.· How many hours per week do you devote to your 16· ·private forensic practice evaluating criminal 17· ·defendants? 18· · · A.· It varies, but I've reduced that aspect of my 19· ·correctional practice.· I would say now on average two 20· ·to three hours a week, but I don't have cases every 21· ·week.· So it's a matter of taking -- I'll take six to 22· ·ten cases a year.· So I would say it averages out to two 23· ·to three hours per week. 24· · · Q.· When did you begin reducing that aspect of your 25· ·practice?

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·1· · · A.· In 2012 when I left -- I left Regional Mental ·2· ·Health and Mental Retardation, now known as Starcare, ·3· ·when I left that agency, I significantly reduced my ·4· ·number of hours per week. ·5· · · Q.· And I see where that's listed here in your CV ·6· ·that from 2002 to 2012 you were the Director of Forensic ·7· ·Services and the Director of Post-doctoral Fellowship ·8· ·Program in Forensic Psychology at the Lubbock Regional ·9· ·Mental Health Mental Retardation Center. 10· · · A.· Correct. 11· · · Q.· And what was that center? 12· · · A.· That's the local community health provider. 13· · · Q.· And I can't help but notice that in 2005 you were 14· ·a consultant for the Dallas Cowboys? 15· · · A.· I was a consultant for Brain Power, which was a 16· ·private company providing services for the Dallas 17· ·Cowboys at the NFL Combine. 18· · · Q.· That's very cool. 19· · · A.· It's a -- that's a cool item to have on the 20· ·vitae. 21· · · Q.· Was that Sports Psychology, or what was the 22· ·nature of your work there? 23· · · A.· Yes.· I signed a non-disclosure agreement, but in 24· ·a general sense, it was trying to help identify good fit 25· ·for NFL prospects.

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Dr. Robert Morgan 05/21/2019
·1· · · Q.· So let's talk specifically about your work inside ·2· ·of prisons.· I understand that after you received your ·3· ·undergraduate degree you took a psychology internship at ·4· ·a federal prison in Leavenworth; is that right? ·5· · · A.· That was during my master's program.· That was ·6· ·the first summer actually of my master's program. ·7· · · Q.· Hence, your description of it as an internship? ·8· · · A.· Correct. ·9· · · Q.· And so were you working under the supervision of 10· ·a psychologist at that time? 11· · · A.· Yes. 12· · · Q.· And did your work at the federal prison in 13· ·Leavenworth, Kansas involve working with people in 14· ·segregation? 15· · · A.· No. 16· · · Q.· Then after you received your master's degree but 17· ·before receiving your doctorate, you started working as 18· ·a mental health professional in two state prisons in 19· ·Kansas; is that right? 20· · · A.· Yes. 21· · · Q.· And I notice that you referred to the position as 22· ·"Mental Health Professional" as opposed to 23· ·"Psychologist."· Is there a reason for that distinction? 24· · · A.· Yes, two.· Mental Health Professional was the 25· ·professional title that we all had.· And when I say "we

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Dr. Robert Morgan 05/21/2019
·1· ·all," I mean my colleagues who were hired to provide ·2· ·mental health services.· "Psychologist" is a protected ·3· ·term, and I wasn't licensed in the State of Kansas at ·4· ·the master's or doctoral level, so I couldn't call ·5· ·myself a psychologist.· And the professional term title ·6· ·-- the professional title was Mental Health ·7· ·Professional. ·8· · · Q.· And I understand that states sometimes give ·9· ·waivers to their licensure requirements for people who 10· ·work in prisons? 11· · · A.· Yes. 12· · · Q.· Was that -- was there a waiver for you to do the 13· ·work of a psychologist but without the licensure? 14· · · A.· That's correct.· The work of a master's level 15· ·psychologist in Kansas at the time was called RMLP, 16· ·Registered Master's Level Psychologist.· I was allowed 17· ·to work at that level without pursuing the actual 18· ·licensure. 19· · · Q.· And did you begin at El Dorado prison? 20· · · A.· Yes, El Dorado. 21· · · Q.· El Dorado? 22· · · A.· Yes. 23· · · Q.· Not an obvious pronunciation. 24· · · A.· No. 25· · · Q.· How long did you work there?

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·1· · · A.· I worked for the department for two years.· I was ·2· ·at El Dorado all total approximately one and a half ·3· ·years. ·4· · · Q.· And was that from 1992 to 1993 period? ·5· · · A.· Yes.· I was at El Dorado for about a year and ·6· ·roughly two months, and then I was transferred to ·7· ·Winfield Correctional Facility.· And prior to leaving ·8· ·for a return to school to go for my PhD, they were going ·9· ·to need to replace me at Winfield Correctional Facility, 10· ·and I asked to go back to El Dorado to finish out my 11· ·time. 12· · · Q.· Staying with El Dorado for a moment, did you work 13· ·with a prison population in segregation? 14· · · A.· Yes, I did. 15· · · Q.· And what was your role? 16· · · A.· I was the designated mental health professional 17· ·for one of the two segregation units. 18· · · Q.· At that time, were you aware of any risks to 19· ·segregation -- any risks of segregation to prisoners' 20· ·mental health? 21· · · A.· Yes. 22· · · Q.· What were the risks that you were aware of at 23· ·that time? 24· · · A.· That -- that placing an inmate in segregation 25· ·could -- could contribute to deterioration in mental

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Dr. Robert Morgan 05/21/2019
·1· ·health functioning. ·2· · · Q.· Did you serve on the segregation review board at ·3· ·El Dorado? ·4· · · A.· I did. ·5· · · Q.· You mentioned that at the earlier -- at the start ·6· ·of our deposition? ·7· · · A.· Yes. ·8· · · Q.· What was your role on the segregation review ·9· ·board? 10· · · A.· My role was to assess mental health functioning 11· ·and provide information to the review board with regard 12· ·to an inmate's mental health functioning while placed in 13· ·segregation.· The review board could then use that 14· ·information in decision-making. 15· · · Q.· Why was there a mental health perspective 16· ·included in the segregation review board's work? 17· · · A.· That was policy. 18· · · Q.· Do you agree with that policy? 19· · · A.· Yes. 20· · · Q.· And why, in your opinion, is that important? 21· · · A.· Because placing somebody in segregation presents 22· ·risk for mental health decompensation. 23· · · Q.· And so if there's evidence of mental health 24· ·decompensation, you want to be able to present that to 25· ·the segregation review board?

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Dr. Robert Morgan 05/21/2019
·1· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·2· · · Q.· (BY MS. FILLER:)· Is that fair? ·3· · · A.· Yes, that's fair. ·4· · · Q.· So that they can make a decision to transfer that ·5· ·person out of segregation or provide additional mental ·6· ·health services, whatever the need may be? ·7· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·8· · · · · · · ·THE WITNESS:· Yes, there would be -- there ·9· ·would be a -- it would be to identify what -- what 10· ·interventions would be most appropriate and helpful for 11· ·the inmate. 12· · · Q.· (BY MS. FILLER:)· Would one of those 13· ·interventions possibly be transfer out of segregation? 14· · · A.· Yes. 15· · · Q.· How often did the segregation review board meet? 16· · · A.· Every 30 days. 17· · · Q.· Was it every 30 days for -18· · · A.· I'm sorry, inmates were reviewed, I believe, 19· ·every 30 days.· The board met -- I think we met every 20· ·week. 21· · · Q.· That was precisely my followup question, so thank 22· ·you for the clarification. 23· · · A.· Yes. 24· · · Q.· And did the prisoner appear before the 25· ·segregation review board?

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Dr. Robert Morgan 05/21/2019
·1· · · A.· That was their option.· They were presented the ·2· ·opportunity.· Some came and some did not. ·3· · · Q.· What was the average stay of prisoners in ·4· ·segregation at the El Dorado facility when you were ·5· ·there? ·6· · · A.· There were two different units, one was what we ·7· ·referred to as the short-term unit, and the other was ·8· ·the long-term.· Those weren't the official designations. ·9· ·Those were -- that was our language, and the time 10· ·different at both. 11· · · Q.· Could you give me the average stay for the 12· ·short-term unit? 13· · · A.· That included both disciplinary, administrative 14· ·segregation.· The disciplinary segregation, the average 15· ·length of stay would have been relatively short, 30 to 16· ·60 days.· The longer term, the admin segregation would 17· ·have been, I'd say, an average of a year. 18· · · Q.· And how about the long-term unit? 19· · · A.· That was -- that was substantially longer. I 20· ·would estimate an average of two to three years. 21· · · Q.· Are you aware of any changes in El Dorado's use 22· ·of segregation since you were there in 1992 to 1993? 23· · · A.· Yes. 24· · · Q.· And what are those changes? 25· · · A.· They had made some changes prior to the

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Dr. Robert Morgan 05/21/2019
·1· ·consultation work I did with Correct Care in 2013.· They ·2· ·had implemented group therapy.· They were working to ·3· ·reduce the segregation population.· They had changed the ·4· ·structure of El Dorado as a facility with the priority ·5· ·or emphasis on reducing segregation.· I don't know of ·6· ·any changes in policy. ·7· · · Q.· Do you agree that the El Dorado facility and the ·8· ·Kansas Department of Corrections was attempting to limit ·9· ·their reliance on segregation? 10· · · A.· They were when I was contracting with Correct 11· ·Care in 2013. 12· · · Q.· Going back to the 1992 to 1993 period when you 13· ·were working there, what percentage of the prisoners in 14· ·the units you worked with had a serious mental illness? 15· · · A.· I would estimate 20 to 30 percent. 16· · · Q.· And how many suicides occurred in segregation 17· ·during your tenure there? 18· · · A.· None. 19· · · Q.· And did you work in the short and long-term 20· ·segregation units or just one of those? 21· · · A.· I was the primary mental health person, 22· ·professional, designated to the short-term.· I provided 23· ·backup coverage in the long-term. 24· · · Q.· How often were you actually working in the 25· ·long-term segregation unit?

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Dr. Robert Morgan 05/21/2019
·1· · · A.· Not that often.· I would say a few times a year. ·2· · · Q.· And -·3· · · A.· No, it would be a little bit more than that. I ·4· ·don't know.· I would say eight to ten times a year. ·5· · · Q.· And you mentioned that you also worked at the ·6· ·Winfield Prison in Kansas, but for roughly six months; ·7· ·is that right? ·8· · · A.· Correct. ·9· · · Q.· And did you do any work with the population in 10· ·segregation when you were at Winfield? 11· · · A.· Yes. 12· · · Q.· And what was the average length of stay for that 13· ·segregation population? 14· · · A.· Two to three days. 15· · · Q.· And I understand you also completed a predoctoral 16· ·internship in Correctional Psychology at FCI Petersburg; 17· ·is that right? 18· · · A.· Yes. 19· · · Q.· So that would have been while you were in pursuit 20· ·of your doctoral degree? 21· · · A.· Yes.· It was an academic requirement to complete 22· ·a year long full-time APA, American Psychological 23· ·Association, accredited internship. 24· · · Q.· And was that -- was it from 1998 to 1999 roughly? 25· · · A.· Yes.

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·1· · · Q.· And what was the nature of your work during that ·2· ·internship? ·3· · · A.· I served three different rotations and a one-day ·4· ·out placement.· The one-day out placement was at a ·5· ·forensic hospital, a secure forensic hospital.· So I ·6· ·would assist on competency to stand trial evaluations, ·7· ·treatment of people acquitted of -- by way of not guilty ·8· ·by reason of insanity, things of that nature. ·9· · · · · · · ·The three rotations I did inside the 10· ·institution was a general correctional mental health 11· ·rotation, a forensic rotation where we provided 12· ·competency and again criminal responsibility evaluations 13· ·for federal courts.· As part of that rotation, and that 14· ·was a four-month rotation, I also provided services to 15· ·inmates in segregation. 16· · · · · · · ·And then my third rotation was a substance 17· ·abuse treatment rotation.· And as part of that rotation, 18· ·I also provided services -- FCI Petersburg was a medium 19· ·secure facility.· They had a minimum security camp.· And 20· ·as part of the substance abuse rotation, I would provide 21· ·certain -- general mental health services out in the 22· ·minimum security camp. 23· · · Q.· Did the minimum security camp have a segregation 24· ·unit? 25· · · A.· No, it did not.

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·1· · · Q.· How long was the rotation during which you ·2· ·provided some treatment to prisoners in segregation? ·3· · · A.· Four months. ·4· · · Q.· And were you exclusively working in the ·5· ·segregation unit during those four months? ·6· · · A.· No. ·7· · · Q.· How many days per week did you spend in the ·8· ·segregation unit? ·9· · · A.· Probably one.· There would be times where it 10· ·would be more, but on average one. 11· · · Q.· And what was the nature of the work that you did 12· ·with the prisoners in segregation? 13· · · A.· Mental health rounds and crisis intervention. 14· · · · · · · ·MS. FILLER:· Let's take a quick five-minute 15· ·break. 16· · · · · · · ·THE WITNESS:· Okay. 17· · · · · · · ·VIDEOGRAPHER:· We're now off the record at 18· ·10:55. 19· · · · · · · ·(Break.) 20· · · · · · · ·VIDEOGRAPHER:· We're back on the record at 21· ·11:04. 22· · · Q.· (BY MS. FILLER:)· Dr. Morgan, right before the 23· ·break, we were talking about your time working in the 24· ·federal prison in Virginia as an intern during your 25· ·doctoral studies, right?

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Dr. Robert Morgan 05/21/2019
·1· · · A.· Yes. ·2· · · Q.· And you described as part of one of your ·3· ·rotations performing some mental health rounds in a ·4· ·segregation unit; is that right? ·5· · · A.· Yes. ·6· · · Q.· And did you perform rounds on everyone in the ·7· ·segregation unit or only those prisoners who were ·8· ·already on a mental health caseload? ·9· · · A.· No, when I did rounds, it was for everybody in 10· ·the segregation unit. 11· · · Q.· And was the goal of those rounds to identify 12· ·prisoners who were deteriorating in segregation 13· ·conditions? 14· · · A.· It was to identify inmates that might be 15· ·deteriorating, but also if they just had any general 16· ·mental health needs that were going unmet or unattended 17· ·to. 18· · · Q.· So as I understand it, your work working in 19· ·segregation units in prison was in Kansas between 1992 20· ·and 1993 and in a federal prison in Virginia for a 21· ·rotation between 1998 and 1999; is that right? 22· · · A.· That -- yes, that's correct, and then consulting 23· ·with Correct Care in 2013.· And then as part of my 24· ·practice here when I do forensic mental health 25· ·evaluations, many times they're at the jails and many

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Dr. Robert Morgan 05/21/2019
·1· ·times it's with inmates in segregation.· So I've ·2· ·evaluated a number of inmates that -- both male and ·3· ·female that were placed in what would be considered ·4· ·segregated housing.· But it was as a forensic mental ·5· ·health evaluation, not as a person responsible for their ·6· ·healthcare -- or mental healthcare. ·7· · · Q.· And when you were consulting with Correct Care, ·8· ·what was the nature of your work in the segregation ·9· ·units? 10· · · A.· I toured several segregation units and worked 11· ·with Correct Care to design or to try to improve their 12· ·mental health services within those units. 13· · · Q.· Did you assess any prisoners who were in 14· ·segregation? 15· · · A.· I met with some inmates, a handful of inmates, 16· ·and had opportunity to ask questions.· I wouldn't say -17· ·I didn't do an assessment of their functioning.· It was 18· ·more asking and assessing the nature of segregation in 19· ·that facility, their experience in segregation.· So it 20· ·was more of a broad-based assessment. 21· · · Q.· And forgive me, you've probably mentioned this, 22· ·but what facility was that? 23· · · A.· That would have been in Larned Correctional 24· ·Facility in Larned, Kansas.· We also -- I also toured 25· ·Lansing Correctional Facility in Leavenworth as part of

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Dr. Robert Morgan 05/21/2019
·1· ·that work.· That would be it. ·2· · · Q.· Is Larned a maximum security facility? ·3· · · A.· That's a psychiatric and health designated. I ·4· ·believe it was a maximum security facility.· That's ·5· ·where inmates that were having severe psychiatric ·6· ·problems or, in some cases, severe health problems would ·7· ·be transferred. ·8· · · Q.· And they would be held in segregation? ·9· · · A.· Some. 10· · · Q.· What was the average stay in segregation at 11· ·Larned? 12· · · A.· I didn't work there, and I don't recall -- I 13· ·don't recall a discussion of that nature, so I don't 14· ·know. 15· · · Q.· And when you met with people in segregation as 16· ·part of your forensic mental health evaluations, did you 17· ·say that would be in a jail setting? 18· · · A.· Oh, yes, sorry.· Yes, that would be typically 19· ·county jails. 20· · · Q.· And would you agree that the length of stay in 21· ·segregation in a jail is usually shorter than length of 22· ·stay in a prison? 23· · · A.· No, not necessarily.· No. 24· · · Q.· No?· Why not? 25· · · A.· In my experience doing these evaluations, I would

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Dr. Robert Morgan 05/21/2019
·1· ·be evaluating inmates that were awaiting trial a couple ·2· ·of years, and a significant portion, if not all of that, ·3· ·might have been in segregation.· Segregation in jail for ·4· ·a couple of years would be longer than some folks in ·5· ·prisons.· It would be comparable to some inmates in ·6· ·prisons, and it would be shorter than many inmates ·7· ·serving segregation time in prisons. ·8· · · · · · · ·Yeah, usually in my forensic mental health ·9· ·work, if an inmate was in segregation they'd been there 10· ·for a bit of time. 11· · · Q.· And did that forensic mental health evaluation 12· ·involve assessing the effect of segregation on their 13· ·mental health? 14· · · A.· They were forensic mental health evaluations for 15· ·purposes of a legal matter.· It would include an 16· ·assessment of mental health functioning, but not 17· ·specific to the issue of segregation. 18· · · Q.· And what we've just covered in terms of your work 19· ·in prison facilities, is that the prison experience that 20· ·you are relying on in giving opinions in this case? 21· · · A.· Actually no, I'm missing a couple of key 22· ·experiences.· My work on matters such as this.· So 23· ·touring and meeting with inmates in Pelican Bay State 24· ·Prison, touring facilities in Alabama, touring 25· ·facilities in Canada, also interviewing inmates in

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Dr. Robert Morgan 05/21/2019
·1· ·Canada.· Those experiences as well. ·2· · · Q.· Let's talk about some of those cases then. ·3· · · A.· Sure. ·4· · · Q.· If you turn to Attachment B of your CV, I see ·5· ·that you've listed cases where you've testified over the ·6· ·past four years? ·7· · · A.· Yes. ·8· · · Q.· And several of these appear to pertain to ·9· ·competency evaluations, such as we were discussing.· So 10· ·State of Texas versus Rudolfo Gill and State of Texas 11· ·versus Marcus Gonzales; is that right? 12· · · A.· Correct. 13· · · Q.· And I see a couple of cases here from Canada, the 14· ·first matter Christopher Brazo? 15· · · A.· Brazeau. 16· · · Q.· Brazeau.· And the third listing, Corporation of 17· ·the Canadian Civil Liberties Association.· Were those 18· ·both cases from Canada? 19· · · A.· Yes, that's correct. 20· · · Q.· So looking at the Brazeau Case, what was your 21· ·involvement in that matter? 22· · · A.· I was retained to give expert opinion on the 23· ·issue of effects of segregation in a class action. 24· ·Yeah. 25· · · Q.· Did your assignment in that case change over

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Dr. Robert Morgan 05/21/2019
·1· ·time? ·2· · · A.· Yes.· Initially, it was to provide an opinion ·3· ·with regard to the effects of segregation, and then ·4· ·subsequent, it was to provide expert opinion -- rebuttal ·5· ·expert opinion to plaintiff's experts' reports. ·6· · · Q.· What was the subject matter of the litigation? ·7· · · A.· Broadly speaking, the effects of segregation. ·8· · · Q.· Was it specific to seriously mentally ill ·9· ·prisoners? 10· · · A.· Yes, I believe so.· Yes. 11· · · Q.· And did you tour prisons as a part of your work 12· ·on that case? 13· · · A.· I did. 14· · · Q.· How many prisons? 15· · · A.· Four. 16· · · Q.· And did you evaluate prisoners as part of your 17· ·work on the Brazeau Case? 18· · · A.· I did an interview with -- with three.· I believe 19· ·it was three inmates. 20· · · Q.· Were they in segregation at the time? 21· · · A.· They were. 22· · · Q.· And what were your opinions in that case? 23· · · A.· Broad -- gees, give me a second.· Generally, that 24· ·the effects of segregation -- segregation could put 25· ·inmates at risk for mental health decompensation.· And

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Dr. Robert Morgan 05/21/2019
·1· ·it was my opinion that some inmates placed in ·2· ·segregation would experience harms as a result of that ·3· ·placement, others would not, and some inmates would ·4· ·improve based on that -- during their time in ·5· ·segregation.· That was my overall opinion. ·6· · · Q.· And what was the result of that litigation? ·7· · · A.· I was just sent a copy of that result, and I have ·8· ·not had a chance to read it in detail, but I believe the ·9· ·plaintiffs prevailed. 10· · · Q.· And didn't the court award 20 million dollars in 11· ·damages in that case? 12· · · A.· I don't know. 13· · · · · · · ·(EXPERT EXHIBIT NO. 3. MARKED.) 14· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I'll pass you 15· ·what's been marked as Expert Exhibit 3.· Does this 16· ·appear to be the -- a copy of the decision that you've 17· ·been sent in the Brazeau matter? 18· · · A.· Yes. 19· · · Q.· And if you turn to page 6 of this opinion, which 20· ·also has the Bates stamp Vermillion 4375, under subpart 21· ·H do you see where it says that the court assesses those 22· ·damages as 20 million dollars? 23· · · A.· I do. 24· · · Q.· If you could turn to page 36 of this exhibit, Dr. 25· ·Morgan, which is Bates labeled Vermillion 4405 --

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·1· · · A.· I'm there. ·2· · · Q.· -- and do you see a bullet point paragraph ·3· ·regarding you? ·4· · · A.· I do. ·5· · · Q.· And on the second page, it says -- well, end of ·6· ·page 36 beginning of 37, it indicates that, "Dr. Morgan ·7· ·was retained to opine as to the appropriateness of ·8· ·mental health services provided to six inmates and ·9· ·whether the services were commensurate with professional 10· ·standards." 11· · · A.· Yes. 12· · · Q.· Does that accurately describe your work in this 13· ·case? 14· · · A.· Yes, I recall that now. 15· · · Q.· And then it also goes onto say, "Dr. Morgan was 16· ·also a witness in other Canadian proceedings where he", 17· ·should have been, "was deposed about the effects of 18· ·solitary confinement on the mentally ill."· Is that 19· ·accurate? 20· · · A.· Yes. 21· · · Q.· Is one of those cases the Corporation of Canadian 22· ·Civil Liberties Association case that you've listed here 23· ·-24· · · A.· Yes, that's correct. 25· · · Q.· -- on your CV?

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·1· · · A.· Yes. ·2· · · Q.· Are there any other Canadian cases that you've ·3· ·been retained as an expert in? ·4· · · A.· Yes. ·5· · · Q.· And what's the name of that case, please? ·6· · · A.· I was just recently retained, so I'm working on ·7· ·it currently.· It's Conrey, C-o-n-r-e-y, Francis versus ·8· ·the Queen Majesty of Ontario. ·9· · · Q.· And what is the subject matter of that case? 10· · · A.· It's regarding the effects of segregation on 11· ·inmates' mental health functioning.· It is also a class 12· ·action suit. 13· · · Q.· And were you retained by the defendants in that 14· ·case? 15· · · A.· Yes. 16· · · Q.· And if you could turn to page 40 of this exhibit, 17· ·Bates labeled Vermillion 4409, please? 18· · · A.· I'm there. 19· · · Q.· And it's -- we're under a section entitled, "The 20· ·battle of the experts" and there's a paragraph here, 21· ·181, and it states that you were retained to give 22· ·evidence about the quality of psychiatric care and were 23· ·not actually called to give evidence about your own 24· ·research on the effects of segregation or your 25· ·meta-analysis in this case, the Brazeau Case; is that

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·1· ·right? ·2· · · A.· Correct. ·3· · · Q.· It goes onto say that, nevertheless, you were ·4· ·extensively cross-examined on this work and heavily ·5· ·critiqued by Drs. Grassian and Haney for your review ·6· ·article.· Do you recall being questioned about the ·7· ·meta-analysis as part of this case? ·8· · · A.· Yes, I do. ·9· · · Q.· And do you recall the critiques from Drs. 10· ·Grassian and Haney? 11· · · A.· Yes. 12· · · Q.· And then in the next paragraph, 182, the court 13· ·says, "Essentially, I do not give much weight to Dr. 14· ·Morgan's meta-analysis conclusions."· Were you aware of 15· ·the court's view of your meta-analysis? 16· · · A.· I was aware of that. 17· · · Q.· Do you know why the court decided not to give 18· ·much weight to your meta-analysis in this Brazeau Case? 19· · · A.· I do not. 20· · · Q.· And if you could flip ahead to page 53, which is 21· ·Bates labeled Vermillion 4422? 22· · · A.· I'm there. 23· · · Q.· Okay.· This section describes another expert for 24· ·the defense, a Dr. Glancy.· Do you -- are you familiar 25· ·with the work of Dr. Glancy?

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·1· · · A.· Where are you on here? ·2· · · Q.· Paragraph 260, for example. ·3· · · A.· Oh, yes. ·4· · · Q.· Who is Dr. Glancy? ·5· · · A.· I don't -- I don't recall what his role was.· I'd ·6· ·have to go back to my notes on that.· I recall clearly ·7· ·Dr. Haney's and Grassian's role.· I don't recall Dr. ·8· ·Glancy's role. ·9· · · Q.· Is he a psychologist? 10· · · A.· I don't -- I don't recall. 11· · · Q.· And paragraph 261 states, "Dr. Morgan also 12· ·disagreed with Dr. Glancy's suggestion that 13· ·administrative segregation can be beneficial for some 14· ·inmates."· Did the court accurately characterize your 15· ·testimony in that case? 16· · · A.· That doesn't sound right.· I would have to go 17· ·back and look at my report, but that doesn't sound 18· ·right. 19· · · Q.· So you disagree with this statement? 20· · · A.· As I'm reading it, it doesn't sound accurate to 21· ·me, but I would need to go back and check my report. 22· · · Q.· This is describing the cross-examination, which I 23· ·understand in Canadian law terms would be similar to 24· ·what we Americans call a deposition. 25· · · A.· Yes.

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·1· · · Q.· Do you recall disagreeing with Dr. Glancy's ·2· ·suggestion that administrative segregation can be ·3· ·beneficial for some inmates under deposition ·4· ·questioning? ·5· · · A.· I don't recall disagreeing with that. ·6· · · Q.· So you think that the court has misunderstood ·7· ·your deposition testimony? ·8· · · · · · · ·MR. DICKMEYER:· Objection.· Asked and ·9· ·answered.· You can answer. 10· · · · · · · ·THE WITNESS:· I would say I would need to 11· ·see the broader context, because it -- I've given the 12· ·opinion a number of times that there are some inmates 13· ·that once placed in segregation will evidence improved 14· ·mental health functioning.· So I don't recall Dr. 15· ·Glancy's opinions, but if he suggested that 16· ·administrative segregation can be beneficial for some 17· ·inmates, I -- it -- I don't know why I wouldn't have 18· ·agreed with that, so I would need to go back and look at 19· ·the greater context.· I'm not saying the court is -20· ·that they mischaracterized or had it wrong, but I would 21· ·need to look and see why would I have disagreed with 22· ·what he said, what was the context there. 23· · · Q.· (BY MS. FILLER:)· The Canadian Civil Liberties 24· ·Association Case that you've also listed at Attachment 25· ·B, could you describe your involvement in that case,

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·1· ·please? ·2· · · A.· Yes.· It was giving -- given several mandates, ·3· ·largely centered around the effects of mental health ·4· ·functioning as it pertains to segregation, the results ·5· ·of segregation.· That was the general matter.· I had ·6· ·several mandates in that -- in that case. ·7· · · · · · · ·(EXPERT EXHIBIT NO. 4 MARKED.) ·8· · · Q.· (BY MS. FILLER:)· Dr. Morgan, you've just been ·9· ·passed what's been marked as Expert Exhibit 4.· Does 10· ·this appear to be your expert report? 11· · · A.· Yes, it does. 12· · · Q.· And does it appear to be the expert report that 13· ·you submitted in connection with this case, the Canadian 14· ·Civil Liberties Association versus the Queen? 15· · · A.· Yes, it does. 16· · · Q.· Do you stand by the opinions that you've 17· ·described in this report? 18· · · A.· Yes. 19· · · · · · · ·(EXPERT EXHIBIT NO. 5 MARKED.) 20· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I just passed you 21· ·what's been marked as Expert Exhibit 5.· Does this 22· ·appear to be the cross-examination, slash, deposition 23· ·testimony that you gave in the Canadian Civil Liberties 24· ·versus the Queen Case? 25· · · A.· Yes, it does.

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·1· · · Q.· And you provided this testimony under oath; is ·2· ·that correct? ·3· · · A.· That's correct. ·4· · · Q.· And did you give true and accurate testimony in ·5· ·association with this case? ·6· · · A.· Yes. ·7· · · · · · · ·MS. FILLER:· Can we go off the record for a ·8· ·moment? ·9· · · · · · · ·VIDEOGRAPHER:· We're now off the record at 10· ·11:31. 11· · · · · · · ·(Break.) 12· · · · · · · ·VIDEOGRAPHER:· We're now back on the record 13· ·at 11:33. 14· · · · · · · ·(EXPERT EXHIBIT NO. 6 MARKED.) 15· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I'm passing you 16· ·what's been marked as Expert Exhibit 6, and does this 17· ·appear to you to be the exhibits that were associated 18· ·with the deposition you gave in the Canadian Civil 19· ·Liberties Association Case? 20· · · A.· It appears to be. 21· · · Q.· And for the record, this is Bates labeled 22· ·Vermillion 3375 forward.· And Dr. Morgan, you can put 23· ·that aside for now, but we will come back to some of the 24· ·articles in there. 25· · · A.· Okay.

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·1· · · Q.· And do you recall as part of that deposition ·2· ·going through and identifying the studies that you ·3· ·relied on in your 2016 meta-analyses? ·4· · · A.· Yes. ·5· · · Q.· And so those studies should be contained in the ·6· ·exhibit that we've just looked at, correct? ·7· · · A.· Yes. ·8· · · · · · · ·(EXPERT EXHIBIT NO. 7 MARKED.) ·9· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I just passed you 10· ·what's been marked as Expert Exhibit 7.· Does this 11· ·appear to be the Court of Appeals decision in the 12· ·Corporation of the Canadian Civil Liberties Association 13· ·matter that we've been discussing? 14· · · A.· It appears to be so, yes. 15· · · Q.· Have you reviewed this opinion? 16· · · A.· I have not. 17· · · Q.· Do you know what the result of the case was when 18· ·it went up on appeal? 19· · · A.· It was not favorable to the defendants.· That's 20· ·the extent of my -- my knowledge. 21· · · Q.· Are you aware that as a result of this decision 22· ·by the Court of Appeals for Ontario in Can -- in Ontario 23· ·that the court held that segregation for more than 15 24· ·consecutive days violated the Canadian Constitution? 25· · · A.· Yes, I was made aware of that.

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·1· · · Q.· And does that contradict your expert opinions in ·2· ·this case? ·3· · · A.· Can you read back the opinion? ·4· · · Q.· The question? ·5· · · A.· Yeah. ·6· · · · · · · ·COURT REPORTER:· "Are you aware that as a ·7· ·result of this decision by the Court of Appeals for ·8· ·Ontario in Can -- in Ontario that the court held that ·9· ·segregation for more than 15 consecutive days violated 10· ·the Canadian Constitution?" 11· · · · · · · ·THE WITNESS:· And your question was do I 12· ·disagree with that? 13· · · · · · · ·COURT REPORTER:· "And does that contradict 14· ·your expert opinions in this case?" 15· · · · · · · ·THE WITNESS:· Yes. 16· · · · · · · ·(EXPERT EXHIBIT NO. 8. MARKED.) 17· · · Q.· (BY MS. FILLER:)· Dr. Morgan, you've been passed 18· ·what's been marked as Expert Exhibit 8, which is the 19· ·lower court opinion in the same case we've been 20· ·discussing, the Corporation of the Canadian Civil 21· ·Liberties Case; is that correct? 22· · · A.· Yes. 23· · · Q.· So this is the opinion that went up on appeal, 24· ·which we were just discussing? 25· · · A.· Yes.

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·1· · · Q.· Thank you.· Returning to your Attachment B of ·2· ·your CV, you have listed here the matter Dunn versus ·3· ·Dunn.· Would that be the Alabama Case that you described ·4· ·earlier? ·5· · · A.· Yes. ·6· · · Q.· And what was your involvement in the Alabama ·7· ·Case? ·8· · · A.· Similar to the other matters.· This was again the ·9· ·issue of mental health effects resulting from 10· ·segregation. 11· · · Q.· And did you tour Alabama prisons as part of your 12· ·work on this case? 13· · · A.· Yes, I did. 14· · · Q.· And as I understand it, you didn't have the 15· ·opportunity to meet with prisoners; is that right? 16· · · A.· That's correct. 17· · · Q.· And was that because there was insufficient time? 18· · · A.· Yes. 19· · · · · · · ·(EXPERT EXHIBIT NO. 9 MARKED.) 20· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I just passed you 21· ·what's been marked as Expert Exhibit 9.· Does this 22· ·appear to be your expert rebuttal report prepared for 23· ·the Alabama matter? 24· · · A.· Yes, it does. 25· · · Q.· Do you stand by the opinions that you expressed

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·1· ·in this expert report? ·2· · · A.· I do. ·3· · · · · · · ·(EXPERT EXHIBIT NO. 10 MARKED.) ·4· · · Q.· (BY MS. FILLER:)· Dr. Morgan, you've just been ·5· ·passed what's been marked as Expert Exhibit 10.· Does ·6· ·this appear to be a transcription of the deposition ·7· ·testimony that you offered in the Alabama matter? ·8· · · A.· Yes, it does. ·9· · · Q.· And were you testifying under oath in that case? 10· · · A.· Yes, I was. 11· · · Q.· Did you provide true and accurate testimony? 12· · · A.· Yes. 13· · · Q.· And did you provide any testimony in court in the 14· ·Alabama Case? 15· · · A.· No. 16· · · Q.· Why not? 17· · · A.· I wasn't called. 18· · · Q.· Do you know -- was there a trial? 19· · · A.· Yes. 20· · · Q.· And are you aware of the reasons why you were not 21· ·called to testify? 22· · · A.· No. 23· · · Q.· Are you aware of the results of the Dunn, et al 24· ·versus Dunn, et al Case? 25· · · A.· No.

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·1· · · Q.· You can put that down. ·2· · · A.· Okay. ·3· · · Q.· And returning to Attachment B of your CV, you ·4· ·next have listed Holder versus Saunders, which was a ·5· ·Kentucky case, and I understand that that case had to do ·6· ·with a prisoner-on-prisoner assault? ·7· · · A.· Yes. ·8· · · Q.· And unlike some of these other cases we've been ·9· ·discussing, you weren't called upon to evaluate the 10· ·effect of segregation on mental health; is that right? 11· · · A.· Correct. 12· · · Q.· This was a different issue? 13· · · A.· This was a different issue. 14· · · Q.· Then the last case you have listed as Ashker 15· ·versus the Governor, and this would be the California 16· ·Case involving Pelican Bay? 17· · · A.· Correct. 18· · · Q.· And what was your involvement in that case? 19· · · A.· Assessing the conditions of confinement for class 20· ·members and providing rebuttal testimony -- or rebuttal 21· ·expert opinion to plaintiff's experts. 22· · · Q.· And who were the plaintiff's experts in that 23· ·case? 24· · · A.· Drs. Kupers and Haney. 25· · · Q.· Did that encase -- and did that case involve

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·1· ·people who had been in solitary confinement for over ten ·2· ·years? ·3· · · A.· Yes. ·4· · · Q.· And how many prisoners did you meet with during ·5· ·that case? ·6· · · A.· I met with ten -- nine class members, I believe ·7· ·it was, and about 40 additional inmates.· So ·8· ·approximately 50 inmates in total. ·9· · · Q.· And what were your findings? 10· · · A.· It was my opinion that although segregation 11· ·places inmates at risk for mental health decompensation 12· ·that that's not universally the case and that the 13· ·California Department of Corrections and Rehabilitation 14· ·had policies and guidelines in place to ensure 15· ·appropriate care and services for inmates in their care 16· ·while in segregation.· I believe that was the primary -17· ·those are the two primary opinions. 18· · · Q.· And are you aware that the case has since 19· ·settled? 20· · · A.· Yes, I was aware of that one. 21· · · Q.· Are you familiar with the basic components of the 22· ·settlement agreement? 23· · · A.· I'm aware that as a -- as a condition of that 24· ·settlement that California was significantly reducing 25· ·segregation population.· Beyond that, I don't know, but

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·1· ·I'm aware of that. ·2· · · Q.· Do you think that's a good thing, in your ·3· ·opinion? ·4· · · A.· To reduce segregation? ·5· · · Q.· (Nodding head.) ·6· · · A.· Yes, absolutely.· To reduce the use of ·7· ·segregation, yes, absolutely. ·8· · · · · · · ·(EXPERT EXHIBIT NO. 11 MARKED.) ·9· · · Q.· (BY MS. FILLER:)· Dr. Morgan, you've just been 10· ·passed what we've marked as Expert Exhibit 11.· Does 11· ·this appear to be a declaration that you submitted in 12· ·regards to the Ashker Case? 13· · · A.· Yes, it does. 14· · · Q.· And does this pertain to opposition to 15· ·Plaintiff's Motion for Class Certification?· If you look 16· ·at just the second page. 17· · · A.· Yes. 18· · · Q.· And was the class certified? 19· · · A.· Yes, it was. 20· · · Q.· And as I understand it, you produced a second 21· ·expert report; is that right? 22· · · A.· Correct. 23· · · Q.· And did that report include detailed information 24· ·about prisoners' mental health history? 25· · · A.· Yes, it did.

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·1· · · Q.· So I don't have that report because I understand ·2· ·it's under seal. ·3· · · A.· Okay. ·4· · · Q.· Have you been retained as an expert on any other ·5· ·cases involving the effects of administrative ·6· ·segregation, other than the ones we've just talked ·7· ·about? ·8· · · A.· Yes. ·9· · · Q.· And what are those cases, please? 10· · · A.· It's a case in California.· I just went blank on 11· ·the plaintiff's name.· Give me a second, Ransom (phon.). 12· ·Ransom v -- the governor at the time. 13· · · Q.· Brown? 14· · · A.· Or it might have been -- yeah, I believe it's 15· ·Brown, but, I mean, I would -16· · · Q.· Sure. 17· · · A.· -- have to check for sure, but the defendant is 18· ·Ransom. 19· · · Q.· Plaintiff is? 20· · · A.· Sorry, the Plaintiff is Ransom.· The issue again 21· ·is effects resulting from segregation placement. 22· · · Q.· How long has the plaintiff in that case been in 23· ·segregation? 24· · · A.· He was in segregation for two and a half -- two 25· ·and a half to four years, something like that, if I

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·1· ·remember correctly. ·2· · · Q.· And have you given deposition testimony in that ·3· ·case? ·4· · · A.· No. ·5· · · Q.· Have you prepared an expert report in that case? ·6· · · A.· Yes. ·7· · · Q.· And to your knowledge, is the case still pending? ·8· · · A.· It is. ·9· · · Q.· Any other cases involving the effects of 10· ·administrative segregation on mental health? 11· · · A.· No. 12· · · Q.· Have you ever been qualified to testify in 13· ·federal court as an expert? 14· · · A.· Not counting depositions, no. 15· · · Q.· Have you ever been asked to consult as an expert 16· ·and after your review of the case told the lawyers that 17· ·you would be unable to provide the opinion they desire? 18· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 19· · · · · · · ·THE WITNESS:· No.· I've consulted on cases 20· ·where I've provided contrary opinions to what the 21· ·retaining counsel wanted, but I never -- I didn't know 22· ·that until it was time to submit an opinion and I 23· ·submitted my report. 24· · · Q.· (BY MS. FILLER:)· Just so I'm understanding 25· ·correctly, what -- your response was that you have been

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·1· ·asked to consult on a case and your ultimate conclusions ·2· ·as expressed in your report was different than desired? ·3· · · A.· Yeah, was not favorable to the retaining counsel. ·4· · · Q.· How many times has that happened? ·5· · · A.· A few.· Yeah, I don't know.· A few. ·6· · · Q.· Would those cases be involving the competency of ·7· ·criminal defendants? ·8· · · A.· Yes, those would be forensic mental health ·9· ·evaluations. 10· · · Q.· When were you contacted to work on this case, 11· ·meaning the Vermillion matter? 12· · · A.· Yes.· Yes.· I received an email, I believe it was 13· ·in -- I would have to check the dates, but I believe it 14· ·was in April. 15· · · Q.· April of this year? 16· · · A.· Yes.· Sorry, April of 2019. 17· · · Q.· And who contacted you about working on this case? 18· · · A.· David did. 19· · · Q.· David Dickmeyer? 20· · · A.· Yes, sorry. 21· · · Q.· How many phone conversations have you had with 22· ·the attorneys on this matter? 23· · · A.· Three or four. 24· · · Q.· And how long were those conversations? 25· · · A.· I would say they ranged from 10 to 20 minutes.

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·1· · · Q.· 10 to 20 minutes each? ·2· · · A.· Yes. ·3· · · Q.· How did Defense Counsel come to identify you as a ·4· ·potential expert in this case, if you know? ·5· · · A.· It was a referral from another psychologist. ·6· · · Q.· And who is that psychologist, please? ·7· · · A.· Dr. Joel Dvoskin. ·8· · · Q.· Do you mind spelling that last name for -·9· · · A.· Sure. 10· · · Q.· -- me and the court reporter? 11· · · A.· D-v-o-s-k-i-n. 12· · · Q.· And what's the nature of your relationship with 13· ·Dr. Dvoskin? 14· · · A.· We're colleagues. 15· · · Q.· Where does Dr. Dvoskin work? 16· · · A.· He's in Arizona, Tucson. 17· · · Q.· Does he work for the prison system in Arizona? 18· · · A.· No, he's in independent practice, and he's 19· ·affiliated with the University of Arizona Medical 20· ·School. 21· · · Q.· Has Dr. Dvoskin ever referred any other cases to 22· ·you? 23· · · A.· He referred me to California for the Ashker Case. 24· ·I was one of several names he referred. 25· · · Q.· Do you have any relationship outside of this case

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·1· ·with the Indiana Department of Corrections? ·2· · · A.· No. ·3· · · Q.· And do you have any relationship outside of this ·4· ·case with any of the Defendants in this case? ·5· · · A.· No. ·6· · · Q.· Do you have any relationship with any of the ·7· ·attorneys for the Defendants in this case outside of ·8· ·this litigation? ·9· · · A.· No. 10· · · Q.· And you charge $285 per hour for time spent on 11· ·this case; is that right? 12· · · A.· That's correct. 13· · · Q.· Is that your standard rate? 14· · · A.· Yes, it is. 15· · · Q.· How much have you charged for your work on this 16· ·case today? 17· · · A.· I submitted a bill for, I don't know, 6 or 8 -- I 18· ·don't remember if it was 6 or $8,000. 19· · · Q.· How many hours have you charged for your work on 20· ·this case? 21· · · A.· I would have to look it up.· It was approximately 22· ·24, 25. 23· · · Q.· Did you bring your file today in response to a 24· ·subpoena? 25· · · A.· Yes.

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·1· · · Q.· And did you bring your communications with ·2· ·Counsel as well? ·3· · · A.· Yes. ·4· · · Q.· Perhaps during one of the next breaks, I could ·5· ·take a look at those. ·6· · · · · · · ·Do you have your report that I believe we ·7· ·looked at at the very start of the deposition in front ·8· ·of you there? ·9· · · A.· Yes. 10· · · Q.· So let's turn back to your report, which has been 11· ·marked as an exhibit, Expert Exhibit 1.· Does this 12· ·report contain all of your opinions in this case? 13· · · A.· Yes. 14· · · Q.· And if we look at page 5 of your report, I see 15· ·that you have listed the facts and data considered? 16· · · A.· Yes. 17· · · Q.· Is this a complete list of the facts and data 18· ·that you've considered in preparing this report? 19· · · A.· Yes. 20· · · Q.· Have you received any additional materials after 21· ·finishing this report aside from the materials that I 22· ·provided to Counsel? 23· · · A.· No. 24· · · Q.· What was your assignment in this case? 25· · · A.· To provide expert opinion regarding the matter of

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·1· ·the effects of segregation and to review the expert ·2· ·reports of Dr. Kupers and Mr. Pacholke and provide any ·3· ·expert opinions in relation to those reports. ·4· · · Q.· Did your assignment change at any point? ·5· · · A.· No, it did not. ·6· · · Q.· And what methodology did you use to come to the ·7· ·conclusions expressed in your report? ·8· · · A.· Oh, a review of the literature, a review of all ·9· ·of the documents provided to me, an analysis of those 10· ·documents, and that was pretty much it.· An analysis -11· ·let me, I guess -- an analysis of those documents in 12· ·relation to my experience as well. 13· · · Q.· And as I understand it, you didn't go to the 14· ·great State of Indiana in connection with this case? 15· · · A.· No. 16· · · Q.· You did not go to any Indiana prisons? 17· · · A.· I did not. 18· · · Q.· Have you ever been inside of an Indiana prison? 19· · · A.· I have not. 20· · · Q.· And you did not interview any Indiana 21· ·correctional staff? 22· · · A.· I did not. 23· · · Q.· Did not interview any Indiana mental health 24· ·staff? 25· · · A.· I did not.

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·1· · · Q.· And you did not interview the Defendants in this ·2· ·case, meaning Mr. Levenhagen, Mr. Brennan, Ms. Nowotski ·3· ·(phon.) or Mr. Myers (phon.)? ·4· · · A.· I did not. ·5· · · Q.· And you also did not interview the Plaintiff in ·6· ·this case, Jay Vermillion? ·7· · · A.· That's correct. ·8· · · Q.· In looking at the materials that you've listed ·9· ·here, it appears that you didn't review any literature 10· ·specific to Indiana segregation, such as Dr. Kupers' 11· ·Cold Storage Report? 12· · · A.· No. 13· · · Q.· No you did not review that literature, correct? 14· · · A.· Correct. 15· · · Q.· Sometimes there's a double negative.· I just want 16· ·to check. 17· · · · · · · ·And so as I understand your testimony and 18· ·your report, you evaluated Dr. Kupers' opinion as to the 19· ·effect of solitary confinement on the Plaintiff, Jay 20· ·Vermillion; is that right? 21· · · A.· Yes. 22· · · Q.· You did not reach your own opinion as to the 23· ·effects of segregation on the Plaintiff? 24· · · A.· Oh, that's correct, yes. 25· · · Q.· Because in order to do that, you would have

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·1· ·wanted to interview Mr. Vermillion, right? ·2· · · A.· Absolutely. ·3· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·4· · · · · · · ·THE WITNESS:· Sorry.· Absolutely. ·5· · · Q.· (BY MS. FILLER:)· Do you agree that a mental ·6· ·health professional has to evaluate someone to reach a ·7· ·conclusion as to their mental health? ·8· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·9· · · · · · · ·THE WITNESS:· Yes. 10· · · Q.· (BY MS. FILLER:)· You wouldn't be able to testify 11· ·as to a criminal defendant's competency unless you 12· ·evaluated them in person, right? 13· · · A.· Correct. 14· · · Q.· Did you ask to evaluate Jay Vermillion? 15· · · A.· No. 16· · · Q.· Was it ever the plan for you to evaluate Mr. 17· ·Vermillion? 18· · · A.· It was discussed, but it was not the plan. 19· · · Q.· Why didn't you evaluate him? 20· · · A.· Primarily, time. 21· · · Q.· I take it that part of your critique of Dr. 22· ·Kupers' opinion in this case is that he did not have any 23· ·psychological testing done to assess the possibility of 24· ·malingering; is that fair? 25· · · A.· That's fair.

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·1· · · Q.· And why didn't you yourself perform any ·2· ·psychological testing to assess malingering of Mr. ·3· ·Vermillion? ·4· · · A.· I didn't conduct any assessment of Mr. ·5· ·Vermillion. ·6· · · Q.· And I believe your response before was primarily ·7· ·time? ·8· · · A.· Yeah, I did not have opportunity. ·9· · · Q.· Do you agree that the conditions in segregation 10· ·vary across facilities in prison systems? 11· · · A.· I do. 12· · · Q.· Do you agree that those conditions are important 13· ·in assessing the effects of segregation on prisoners? 14· · · A.· I do. 15· · · Q.· For example, do you agree that the degree of 16· ·isolation varies across prison segregation units? 17· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 18· · · · · · · ·THE WITNESS:· I do. 19· · · Q.· (BY MS. FILLER:)· And is it important in 20· ·evaluating a segregation unit to be aware of the degree 21· ·of isolation? 22· · · A.· Yes. 23· · · Q.· So why is it that you did not tour the prison 24· ·where Jay spent most of his time in segregation -25· ·sorry, Jay Vermillion?

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·1· · · A.· I was not given any specific opinions with regard ·2· ·to Mr. Vermillion's mental health functioning, mental ·3· ·state or his psychological functioning. ·4· · · Q.· Would it have been helpful in formulating your ·5· ·opinions to inspect the prison where Mr. Vermillion ·6· ·spent most of his time in segregation? ·7· · · A.· Not the opinions as offered.· If I were to -·8· ·well, I'll stop. ·9· · · Q.· Please go ahead. 10· · · A.· If -- if I had been asked to give an opinion as 11· ·to Mr. Vermillion's mental state as it pertained to the 12· ·effects of segregation, then absolutely it would have 13· ·been important to tour the facility and interview and 14· ·evaluate Mr. Vermillion. 15· · · Q.· Do you know the name of the prison at issue in 16· ·this case? 17· · · A.· Not off the top of my head, but it's in the 18· ·records.· I was not famil -- familiar with that prison 19· ·prior to my involvement in this case. 20· · · Q.· And your report doesn't describe the segregation 21· ·unit at issue in this case, correct? 22· · · A.· Correct. 23· · · Q.· Do you know any of the unique characteristics of 24· ·the segregation unit where Mr. Vermillion was housed? 25· · · A.· No, not beyond what was reported in Dr. Kupers'

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·1· ·and Mr. Pacholke's report. ·2· · · Q.· And what were the characteristics that they ·3· ·identified? ·4· · · A.· The structure, the nature of the structure of the ·5· ·environment, temperature, things of that nature. ·6· · · Q.· Temperature.· What about the structure? ·7· · · A.· The nature of doors that limits communication, ·8· ·things of that nature. ·9· · · Q.· Would that be the boxcar doors? 10· · · A.· Yes. 11· · · Q.· Do you agree that some segregation units have 12· ·open steel barred doors? 13· · · A.· I have not seen that, but yes. 14· · · Q.· You're familiar with the general idea that some 15· ·segregation units have more or less isolating door 16· ·structure? 17· · · A.· Yes, I am. 18· · · Q.· Are you familiar with the unique characteristics 19· ·of the prison where Mr. Vermillion was held with regard 20· ·to access to the outdoors? 21· · · A.· Just as described by Dr. Kupers and Mr. Poche -22· · · Q.· Pacholke? 23· · · A.· Pacholke. 24· · · Q.· And how did they describe that? 25· · · A.· That they're very limited in nature.· Basically,

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·1· ·a concrete room with an open roof. ·2· · · Q.· And in your opinion, did that have an effect on ·3· ·prisoners' mental health? ·4· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·5· · · · · · · ·THE WITNESS:· It can. ·6· · · Q.· (BY MS. FILLER:)· What are the rates of suicide ·7· ·in segregation versus prison general population? ·8· · · A.· Oh, they're higher in segregation. ·9· · · Q.· Significantly higher? 10· · · A.· I would say so. 11· · · Q.· Do you agree that among mental health 12· ·professionals it is generally accepted that solitary 13· ·confinement poses a risk of harm to prisoners? 14· · · A.· I would agree with that. 15· · · Q.· And is part of the reason for that consensus 16· ·because the risk of suicide is so much higher in 17· ·segregation? 18· · · A.· That would be part of it, yes. 19· · · Q.· Is another part of the reason for that consensus 20· ·observations of prisoners who have decompensated to a 21· ·very serious degree while in segregation? 22· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 23· · · · · · · ·THE WITNESS:· That would be part of it as 24· ·well, yes. 25· · · Q.· (BY MS. FILLER:)· And another part of the reason

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·1· ·for that consensus is that for quite a long time it has ·2· ·been understood that depriving a person of human ·3· ·interaction is generally bad for mental health? ·4· · · · · · · ·MR. DICKMEYER:· Objection.· Leading. ·5· · · · · · · ·MS. FILLER:· State for the record that this ·6· ·is a cross-examination of Defendant's expert, so I don't ·7· ·think there's an issue with leading. ·8· · · Q.· (BY MS. FILLER:)· You can answer. ·9· · · · · · · ·THE WITNESS:· Would you repeat that, please? 10· · · · · · · ·COURT REPORTER:· "And another part of the 11· ·reason for that consensus is that for quite a long time 12· ·it has been understood that depriving a person of human 13· ·interaction is generally bad for mental health?" 14· · · · · · · ·THE WITNESS:· I would agree. 15· · · Q.· (BY MS. FILLER:)· Do you agree that the 16· ·literature on segregation demonstrates that some inmates 17· ·placed in segregation will suffer negative effects on 18· ·their mental health? 19· · · A.· Yes. 20· · · Q.· And does the negative effects include anger, 21· ·sleeplessness, elevated levels of hopelessness and 22· ·anxiety? 23· · · A.· It can. 24· · · Q.· Do those negative effects also include the 25· ·development of previously undetected psychiatric

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·1· ·symptoms, including suicidal thoughts and depression? ·2· · · A.· It can. ·3· · · Q.· Do you agree that as a result of the risk of harm ·4· ·to prisoners in segregation, prison staff have to take ·5· ·precautions if they use segregation as a correctional ·6· ·practice? ·7· · · A.· I do. ·8· · · Q.· Do you agree that one of those precautions is ·9· ·making sure that only people who really need to be in 10· ·segregation should be there? 11· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 12· · · · · · · ·THE WITNESS:· I would agree with that. 13· · · Q.· (BY MS. FILLER:)· And do you also agree that 14· ·prison staff should regularly review people in 15· ·segregation to make sure that they still really need to 16· ·be in segregation? 17· · · A.· I would agree with that. 18· · · Q.· Indeed, that was part of your role on the 19· ·segregation review board in Kansas, correct? 20· · · A.· Correct -- no.· No, I wasn't responsible for that 21· ·-- for the decision-making.· I was simply responsible 22· ·for providing information regarding any impacts or 23· ·negative harms that were resulting as a result of 24· ·segregation placement.· The decision-making was outside 25· ·of my control.

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·1· · · Q.· Thank you for that clarification.· Do you ·2· ·understand that the other correctional staff on the ·3· ·segregation review board were working to make sure that ·4· ·prisoners still needed to be there? ·5· · · A.· Yes. ·6· · · Q.· Dr. Morgan, in your 2016 meta-analyses, you say ·7· ·that "the results of the study are not justification for ·8· ·segregation's continued use at current levels or for an ·9· ·extreme length of time, e.g., several years;" is that 10· ·right? 11· · · A.· Yes. 12· · · Q.· You still agree with that recommendation as the 13· ·interpretation of your meta-analyses? 14· · · A.· Yes, I do. 15· · · Q.· And the studies included in your meta-analyses 16· ·studied solitary confinement the maximum of one year; is 17· ·that right? 18· · · A.· Yes. 19· · · Q.· And is the limitation on that meta-analysis part 20· ·of the reason why you don't believe it is justification 21· ·for segregation's use for an extreme length of time? 22· · · A.· That certainly would have been part of the 23· ·thinking process, but that's not the primary purpose of 24· ·that statement. 25· · · Q.· What is the primary purpose of that statement in

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·1· ·your report?· I'm sorry, "report," I'm referring to the ·2· ·2016 meta-analyses. ·3· · · A.· Yes. ·4· · · Q.· Not your report in this case. ·5· · · A.· Yes.· The primary purpose was to guard against ·6· ·the instance where somebody, an agency, for example, ·7· ·takes the results of that meta-analysis and said -- and ·8· ·basically says, "Well, these results suggest it's not ·9· ·that harmful.· We can leave them in here for long-term." 10· ·That's not consistent with -- with our recommendations 11· ·or opinions regarding correctional practice. 12· · · Q.· And it's not consistent with the consensus in the 13· ·medical community either? 14· · · A.· Correct. 15· · · Q.· In the -- your study of the -- your study on the 16· ·meta-analyses from 2016, you also described segregation 17· ·as "short-sighted and primitive."· Do you recall that? 18· · · A.· Yes. 19· · · Q.· And can you describe what you meant by that? 20· · · A.· Yes.· The idea of segregation is to remove a 21· ·dangerous inmate or an inmate that's causing problems 22· ·from the general population and put them in a more 23· ·secure environment, but it does little to change 24· ·behavior.· And the idea behind corrections is to change 25· ·behavior and that there are better ways to do it than to

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·1· ·use segregation. ·2· · · Q.· Do you still agree with that statement that you ·3· ·made in your 2016 study? ·4· · · A.· I do. ·5· · · Q.· Do you agree that there should be limits placed ·6· ·on the use of solitary confinement? ·7· · · A.· In some cases, yeah.· In some context, yes. ·8· · · Q.· What are those contexts and what would be the ·9· ·limits? 10· · · A.· I think age is certainly a consideration and 11· ·prior mental health functioning is a certain -- would 12· ·need to be a consideration.· The issue is if you place 13· ·limits, it doesn't necessarily fit for everybody. 14· ·Shorter is better, things of that nature.· But putting a 15· ·time to it and a limit to it is restrictive in a way 16· ·that doesn't necessarily fit in a particular case.· So 17· ·I'm hesitant to say yes to limits, but certainly we need 18· ·to take precautions to make sure we're protecting 19· ·populations.· Juveniles, I think, are at increased risk. 20· ·People with serious mental illness, although not in my 21· ·opinion at increased risk, there's other complications 22· ·that we need to guard against.· So those things need to 23· ·be considered.· But an absolute limit, I wouldn't go 24· ·that far. 25· · · Q.· As I understood your testimony, you agree that as

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·1· ·a general rule segregation should be used only as long ·2· ·as necessary with a goal of returning the prisoner to ·3· ·the general population? ·4· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·5· · · · · · · ·THE WITNESS:· Yes. ·6· · · Q.· (BY MS. FILLER:)· Are you aware of any ·7· ·professional organizations that have taken positions ·8· ·regarding solitary confinement and the risk to ·9· ·prisoners' health from that practice? 10· · · A.· Yes. 11· · · Q.· What are some of those professional 12· ·organizations? 13· · · A.· I believe the American Psychiatric Association. 14· ·Did you say professional organizations -- mental health 15· ·professional organizations? 16· · · Q.· Yes. 17· · · A.· American Medical Association has -- I don't 18· ·recall if AMA has taken a specific stance.· I'm not a 19· ·physician, so I don't belong to that organization, so I 20· ·can't recall if they have or not.· But certainly 21· ·American Psychiatric Association has. 22· · · Q.· How about the American Psychological Association? 23· · · A.· I would need to refresh my memory on that.· I'm 24· ·thinking through a specific document, and I don't recall 25· ·if they took an actual position against administrative

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·1· ·-- or the use of segregation or not.· I would have to ·2· ·refer back -·3· · · Q.· What's the document you're thinking of? ·4· · · A.· I'd have to look it up. ·5· · · Q.· So as you sit here today you're not thinking of a ·6· ·specific document, but you're thinking that they might ·7· ·have one; is that right? ·8· · · A.· Well, I'm thinking of a document, but I'm not ·9· ·remembering the -10· · · Q.· The name of it? 11· · · A.· -- the name and the outlet actually.· I don't 12· ·believe it was in a journal article, so it's more of a 13· ·position statement, and I would have to look at it. 14· · · Q.· Are you a member of the American Psychological 15· ·Association? 16· · · A.· I am. 17· · · Q.· How about the NCCHC, do they have a position 18· ·regarding solitary confinement? 19· · · A.· I don't recall what their specific position is. 20· · · Q.· Do you recall if they have a position? 21· · · A.· No. 22· · · Q.· What is the position of the American Psychiatric 23· ·Association? 24· · · A.· To reduce the use of segregation. 25· · · Q.· Because it is harmful for mental health?

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·1· · · A.· Yes. ·2· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·3· · · · · · · ·THE WITNESS:· Sorry. ·4· · · Q.· (BY MS. FILLER:)· And we've been talking about ·5· ·mental health professional organizations.· Are there ·6· ·other professional organizations beyond simply the ·7· ·mental health context that have taken positions ·8· ·regarding solitary confinement and the risk to mental ·9· ·health? 10· · · A.· Yes. 11· · · Q.· And what are those organizations, please? 12· · · A.· The ACLU, for example.· The United Nations has 13· ·taken a stance.· I'm trying to think of other 14· ·professional organizations, and there's a few, but 15· ·primarily I think the United Nations and the ACLU. 16· · · Q.· And what are their positions? 17· · · A.· The same, that the use of segregation should be 18· ·reduced due to cause of harm. 19· · · Q.· And the United Nations' position is that 20· ·segregation should never last longer than 15 days; is 21· ·that right? 22· · · A.· That's correct. 23· · · Q.· What about the Department of Justice, do they 24· ·have a position regarding segregation or restrictive 25· ·housing that you're aware of?

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·1· · · A.· Yes. ·2· · · Q.· What is their positions? ·3· · · A.· Again, reduce the use of segregation due to ·4· ·harms. ·5· · · Q.· What about the American Correctional Association, ·6· ·the ACA, are you aware if they have a position statement ·7· ·or take any position regarding segregation? ·8· · · A.· No. ·9· · · Q.· No, you're not aware? 10· · · A.· Yeah, I'm not -- I'm not recalling a position by 11· ·ACA. 12· · · · · · · ·(EXPERT EXHIBIT NO. 12 MARKED.) 13· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I passed you what's 14· ·been marked as Expert Exhibit 12.· Does this appear to 15· ·you to be a position statement on solitary confinement 16· ·from the National Commission on Correctional Health 17· ·Care? 18· · · A.· It does. 19· · · Q.· And would this be the same organization in which 20· ·you are recently appointed to the board of directors for 21· ·their educational foundation? 22· · · A.· Yes. 23· · · Q.· Have you ever reviewed this position statement 24· ·before, Dr. Morgan? 25· · · A.· I'm sure I have.· I don't recall specifically

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·1· ·looking at this, but I'm sure I've reviewed it. ·2· · · Q.· If I could turn your attention to the second page ·3· ·of this position statement, the very top.· "The inherent ·4· ·restriction and meaningful social interaction and ·5· ·environmental stimulation and the lack of control ·6· ·adversely impact the health and welfare of all who are ·7· ·housed in solitary confinement."· Did I read that ·8· ·correctly? ·9· · · A.· You did. 10· · · Q.· And do you agree or disagree with that statement? 11· · · A.· I would disagree. 12· · · Q.· And the basis for your disagreement? 13· · · A.· Basically, just the one piece where it says "of 14· ·all who are held." 15· · · Q.· And what are you relying on to support your 16· ·disagreement with that aspect of the statement? 17· · · A.· My understanding of the state of research and my 18· ·experience. 19· · · Q.· And the next sentence, "While there is a school 20· ·of thought that suggests that solitary confinement in 21· ·facilities that meet basic standards of humane care has 22· ·relatively little adverse effect on most individuals 23· ·mental or physical health, this is not the view of most 24· ·international organizations."· Did I read that 25· ·correctly?

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·1· · · A.· Yes. ·2· · · Q.· And would you say that you're a member of the ·3· ·school of thought that suggests that solitary ·4· ·confinement in facilities meeting basic standards has ·5· ·relatively little adverse effect? ·6· · · A.· Can you repeat that last part of that question? ·7· · · · · · · ·COURT REPORTER:· "And would you say that ·8· ·you're a member of the school of thought that suggests ·9· ·that solitary confinement in facilities meeting basic 10· ·standards has relatively little adverse effect?" 11· · · · · · · ·THE WITNESS:· I would say I'm certainly 12· ·perceived as being in that -- of that school of thought. 13· · · Q.· (BY MS. FILLER:)· Are you -- is that a false 14· ·perception in some ways? 15· · · A.· In some ways, yes, absolutely. 16· · · Q.· Can you elaborate? 17· · · A.· Yeah.· Segregation can have significant effects, 18· ·harmful effects, it's my opinion and -- that it's not 19· ·universally experienced.· And so there are some people 20· ·that will go in segregation and not experience harms. 21· ·And when you look at the totality of the population, the 22· ·harms will typically be more minor than other people 23· ·would suggest.· But that doesn't mean that segregation 24· ·can't be and isn't, in some cases, harmful, and quite 25· ·harmful at times.

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·1· · · Q.· We can put that aside.· Is your view of the harms ·2· ·of solitary confinement that you've just expressed ·3· ·outside of the mainstream? ·4· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·5· · · · · · · ·THE WITNESS:· Yes. ·6· · · Q.· (BY MS. FILLER:)· You are familiar with the ·7· ·Plaintiff's expert, Dr. Kupers, I gather? ·8· · · A.· I am. ·9· · · Q.· And you kindly mention in your report that you do 10· ·know Dr. Kupers to be a respected psychiatrist; is that 11· ·right? 12· · · A.· Yes. 13· · · Q.· And you mentioned earlier that you are including 14· ·a chapter from Dr. Kupers on imprisonment and stress in 15· ·your Encyclopedia; is that right? 16· · · A.· Yes. 17· · · Q.· And I gather that your goal as an editor of the 18· ·Encyclopedia is to collect writings from reputable 19· ·figures in the field? 20· · · A.· Most reputable. 21· · · Q.· And as an editor, you have a responsibility to 22· ·make sure that the research and views you're including 23· ·are of a high quality? 24· · · A.· Yes. 25· · · Q.· So you feel confident in the quality of Dr.

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·1· ·Kupers' work, at least with respect to his contributions ·2· ·to your Encyclopedia? ·3· · · A.· Yes. ·4· · · Q.· And in your rebuttal repor -- rebuttal report, ·5· ·you also conclude that Dr. Kupers adequately summarized ·6· ·the literature on the effects of solitary confinement; ·7· ·is that right? ·8· · · A.· That he adequately summarized? ·9· · · Q.· That he adequately -- perhaps what you meant is 10· ·adequately summarized the literature describing the 11· ·harms of solitary confinement?· This is on page 6 under 12· ·"Critique of Expert Report," Section A, first paragraph, 13· ·last sentence. 14· · · A.· Oh, thank you.· What I meant to -- what I'm 15· ·meaning there is that this body of work that is cited 16· ·here that reports on the harms of segregation, he 17· ·adequately summarized that literature. 18· · · Q.· So let's talk about some of your critiques of Dr. 19· ·Kupers' assessment of the Plaintiff.· How would you 20· ·describe Dr. Kupers' findings regarding the effects of 21· ·solitary confinement on Mr. Vermillion?· And what I'm 22· ·hoping you can respond to is can you describe the 23· ·substance of his findings? 24· · · A.· With regard to specifically the mental health 25· ·effects from segregation?

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·1· · · Q.· (Nodding head.) ·2· · · A.· That -- that it was harmful. ·3· · · Q.· That Mr. Vermillion suffered psychiatric harm ·4· ·from his experience in segregation? ·5· · · A.· Yes. ·6· · · Q.· And you say, "That in reaching these conclusions, ·7· ·Dr. Kupers failed to account for the fact that the ·8· ·records from Mr. Vermillion's medical history in the ·9· ·department didn't reflect psychiatric complaints." 10· · · A.· That was one of my criticisms, yes. 11· · · Q.· Dr. Morgan, can we agree that there have been 12· ·cases where a prisoner has committed suicide without 13· ·there being evidence in the medical record of 14· ·complaints? 15· · · A.· Yes. 16· · · Q.· And can we also agree that the records that you 17· ·reviewed that you've identified as contrary to Dr. 18· ·Kupers' assessment were records from monthly mental 19· ·health rounds? 20· · · A.· During his time in segregation, yes. 21· · · Q.· These were not sitdown comprehensive mental 22· ·health assignments, right -- mental health assessments, 23· ·correct? 24· · · A.· I did not -25· · · · · · · ·MR. DICKMEYER:· Objection.· Form.· Go ahead.

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·1· · · · · · · ·THE WITNESS:· I did not see evidence of ·2· ·that. ·3· · · Q.· (BY MS. FILLER:)· And what Dr. Kupers did was sit ·4· ·down with Mr. Vermillion and perform a comprehensive ·5· ·clinical interview, correct? ·6· · · A.· Yes. ·7· · · Q.· And Dr. Kupers' interview of Mr. Vermillion then ·8· ·was substantively very different than the monthly mental ·9· ·health contact -- contacts that are described in the 10· ·mental health record, correct? 11· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 12· ·speculation.· You can answer. 13· · · · · · · ·THE WITNESS:· I would agree, yes. 14· · · Q.· (BY MS. FILLER:)· Do you know how long Dr. Kupers 15· ·evaluated Mr. Vermillion for? 16· · · A.· I believe the face-to-face interview was about 17· ·three and a half hours, and he had two subsequent 18· ·telephone conversations with the Plaintiff, one was for 19· ·30 minutes and the other was, I think, 20 minutes. 20· · · Q.· Do you agree that Dr. Kupers' evaluation of Mr. 21· ·Vermillion face-to-face and over the phone is the most 22· ·comprehensive evaluation of Mr. Vermillion's mental 23· ·health that was completed during his incarceration -24· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 25· ·speculation.

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·1· · · Q.· (BY MS. FILLER:)· -- based on your review? ·2· · · A.· Based on my review, yes. ·3· · · · · · · ·MS. FILLER:· Let's take a break and change ·4· ·the tape. ·5· · · · · · · ·VIDEOGRAPHER:· We're now off the record at ·6· ·12:31. ·7· · · · · · · ·(Break.) ·8· · · · · · · ·VIDEOGRAPHER:· We're now back on the record ·9· ·at 1:19. 10· · · Q.· (BY MS. FILLER:)· Dr. Morgan, before we broke for 11· ·lunch, we were discussing your critique of Dr. Kupers' 12· ·assessment of Mr. Vermillion and the mental health 13· ·rounds and the records from those rounds that were in 14· ·the evidence you reviewed.· Does that refresh your 15· ·recollection as to where we left off? 16· · · A.· Yes. 17· · · Q.· Do you know how long the mental health staff 18· ·spent at Mr. Vermillion's cell door when doing their 19· ·monthly rounds while he was in segregation? 20· · · A.· No. 21· · · Q.· Do you know whether it was difficult for them to 22· ·communicate through the cell door? 23· · · A.· No. 24· · · Q.· Are you aware that Dr. Kupers toured the facility 25· ·where Mr. Vermillion was in segregation?

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·1· · · A.· Yes. ·2· · · Q.· And are you aware that he actually was able to ·3· ·observe a member of the mental health staff performing ·4· ·rounds at that facility? ·5· · · A.· Yes. ·6· · · Q.· Would you agree then that Dr. Kupers, who ·7· ·actually had the opportunity to observe a mental health ·8· ·staff professional performing rounds at the same ·9· ·facility where Mr. Vermillion was held, is in a better 10· ·position to opine as to the quality of mental health 11· ·rounds -12· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 13· · · Q.· (BY MS. FILLER:)· -- at that facility? 14· · · A.· Yes. 15· · · Q.· Have you ever offered any opinions as to the 16· ·proper standard of care in performing mental health 17· ·rounds in segregation? 18· · · A.· Yes. 19· · · Q.· And what have you said is the appropriate 20· ·frequency in which those rounds should be conducted? 21· · · A.· A minimum of once a week. 22· · · Q.· Are you aware that the mental health rounds at 23· ·issue in this case were monthly? 24· · · A.· That was my observation based on the record. 25· · · Q.· And so based on your opinion, that would not be

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·1· ·sufficient to mitigate the harm of segregation? ·2· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·3· · · · · · · ·THE WITNESS:· I would agree. ·4· · · Q.· (BY MS. FILLER:)· And do you agree that some ·5· ·prisoners do not want to be seen as mentally ill because ·6· ·it makes them appear weak in front of their peers in ·7· ·prison? ·8· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·9· · · · · · · ·THE WITNESS:· Yes. 10· · · Q.· (BY MS. FILLER:)· And do you agree that 11· ·prisoners' tendency to minimize or underreport mental 12· ·health symptoms is important to consider when evaluating 13· ·the effect of solitary confinement? 14· · · A.· Yes. 15· · · Q.· As I understood your report, you think it's 16· ·possible that Mr. Vermillion would avoid raising mental 17· ·health complaints with mental health staff during cell 18· ·side rounds; is that right? 19· · · A.· Yes, that's possible. 20· · · Q.· But your opinion is that Mr. Vermillion would 21· ·have asked for an out-of-cell meeting if he was actually 22· ·suffering; is that right? 23· · · A.· It's my opinion that he most likely could have. 24· · · Q.· And what is the basis for your opinion that Jay 25· ·could have received out-of-cell meetings with mental

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·1· ·health staff had he just asked? ·2· · · A.· It's my opinion that he could have asked. I ·3· ·can't testify or state an opinion as to whether if he ·4· ·would have received an out-of-cell consultation, but ·5· ·general practice would suggest that he would. ·6· · · Q.· You don't have any specific information as to the ·7· ·availability of out-of-cell mental health treatment in ·8· ·the segregation unit where Mr. Vermillion was held ·9· ·during the time he was held there? 10· · · A.· That's correct, I do not. 11· · · Q.· Are you aware of a lawsuit that was filed against 12· ·the Indiana Department of Corrections on behalf of 13· ·seriously mentally ill prisoners who had been held in 14· ·segregation?· This was a class action. 15· · · A.· No.· Mr. Pacholke's report referred to some prior 16· ·litigation, but I don't know the specifics of that and 17· ·if that's what you're referring to. 18· · · Q.· So I take it then that you are not aware and did 19· ·not consider in formulating your opinions in this case 20· ·that the judge in that case on behalf of seriously 21· ·mentally ill prisoners found that the Indiana Department 22· ·of Corrections was not providing adequate out-of-cell 23· ·mental health assessments for prisoners in segregation? 24· · · A.· No. 25· · · · · · · ·(EXPERT EXHIBIT NO. 13 MARKED.)

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·1· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I've just passed ·2· ·you what's been marked as Expert Exhibit 13.· This is ·3· ·the case Indiana Protection and Advocacy Service ·4· ·Commission versus the Commission of the Indiana ·5· ·Department of Corrections, and you'll see that it's an ·6· ·entry following bench trial and that the district court ·7· ·judge was Judge Pratt.· Do you see that on the first ·8· ·page? ·9· · · A.· Yes. 10· · · Q.· And if you could please turn to page 11 of this 11· ·entry and opinion, which has the Bates stamp Vermillion 12· ·1643, and I want to draw your attention to the last 13· ·paragraph on that page.· It says starting at the second 14· ·sentence, and I'm reading directly from the entry and 15· ·opinion here, "The pervasive function of mental health 16· ·staff within the IDOC has become a mixture of responding 17· ·to crises and responding to prisoner requests to be 18· ·seen.· The 30-day reviews are ineffectual because of 19· ·insufficient mental health staff and because of the 20· ·circumstances on the unit, meaning the inability of 21· ·custody staff to regularly place the prisoner in a 22· ·setting where reasonable privacy and communication can 23· ·be attained.· Although the loss of privacy is a 24· ·condition of imprisonment, the loss of privacy and 25· ·communication with medical staff restricts the

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·1· ·prisoners' ability to be candid when providing ·2· ·information," end quote.· Dr. Morgan, were you aware of ·3· ·that finding at the time that you authored your report ·4· ·in this case? ·5· · · A.· No. ·6· · · Q.· Does that change your opinion as to the ·7· ·availability of out-of-cell mental health care for Mr. ·8· ·Vermillion if he had a concern about confidentiality? ·9· · · A.· It certainly raises questions if he could have 10· ·received an out-of-cell contact. 11· · · Q.· If you could turn to page 16, Vermillion 1644, 12· ·which is the next page -- or the page that we left off 13· ·on rather.· If we could look at the very bottom 14· ·paragraph of -- it says page 12 of the entry and 15· ·opinion, Vermillion 1644. 16· · · A.· Okay.· I'm there. 17· · · Q.· It's the paragraph starting, "A number of 18· ·facilities." 19· · · A.· Yes. 20· · · Q.· It says, "A number of facilities, including 21· ·Pendleton, Putnamville and the WCU, do not interview 22· ·prisoners with Axis II diagnoses outside of their cells. 23· ·Prisoners, even those with Axis I diagnoses, frequently 24· ·are not removed for an out-of-cell evaluation every 25· ·30 days but have them at their cell fronts, even though

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·1· ·the prisoner has not refused to leave his or her cell. ·2· ·At times, prisoners are not removed for the out-of-cell ·3· ·evaluation because there are insufficient correctional ·4· ·staff to move the prisoners or because of other ·5· ·scheduling difficulties that are no fault of the ·6· ·prisoner." ·7· · · · · · · ·And continuing this next paragraph describes ·8· ·how, "conversation with the therapist even in private ·9· ·may be only a few minutes, prisoner believes it's not 10· ·useful and not worth the shackling."· And then in the 11· ·middle of that paragraph goes onto find, "That the 12· ·evaluations when they occur are generally very cursory." 13· · · · · · · ·Would these findings -- strike that.· Were 14· ·you aware of these particular findings from Judge Pratt 15· ·at the time that you authored your opinion in this case, 16· ·the Vermillion Case? 17· · · A.· No. 18· · · Q.· And does Judge Pratt's findings as to the 19· ·adequacy of mental healthcare and the availability of 20· ·out-of-cell mental health evaluations cause you to 21· ·perhaps reconsider your opinion that Mr. Vermillion 22· ·would have been asking for out-of-cell mental health 23· ·evaluations if he was experiencing psychiatric distress? 24· · · · · · · ·MR. DICKMEYER:· Objection.· Form.· You can 25· ·answer.

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·1· · · · · · · ·THE WITNESS:· It certainly raises questions ·2· ·with regard to, as I noted, the potential to request ·3· ·out-of-cell consultations.· In terms of changing my ·4· ·opinions, no. ·5· · · Q.· (BY MS. FILLER:)· And why is that that -- what ·6· ·we've just reviewed doesn't change your opinion? ·7· · · A.· Well, because I haven't given any opinions with ·8· ·regard to Mr. Vermillion's mental health functioning and ·9· ·why he did or didn't receive mental health services.· If 10· ·I were to do such an evaluation, this would certainly be 11· ·part of the consideration there. 12· · · Q.· Well, let me just understand then so that we're 13· ·on the same page.· As I read your report, you criticized 14· ·Dr. Kupers for accepting Mr. Vermillion's 15· ·representations even though those representations were 16· ·inconsistent with the monthly mental health segregation 17· ·rounds; is that right? 18· · · A.· Yes. 19· · · Q.· And Dr. Kupers said that in his view, the monthly 20· ·segregation rounds were not very probative because Mr. 21· ·Vermillion had concerns about the confidentiality of 22· ·those mental health rounds, right? 23· · · A.· Yes. 24· · · Q.· And what we've just reviewed from Judge Pratt 25· ·indicates that in fact there wasn't really another

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·1· ·option for prisoners in segregation at that time; is ·2· ·that right? ·3· · · A.· That's what Judge Pratt is indicating here, yes. ·4· · · Q.· So doesn't it stand to reason then that Mr. ·5· ·Vermillion might have had, as Dr. Kupers found, ·6· ·significant distress during segregation, but felt that ·7· ·asking for out-of-cell mental health services was not ·8· ·going to be successful? ·9· · · · · · · ·MR. DICKMEYER:· Objection.· Form.· Calls for 10· ·speculation.· You can answer. 11· · · · · · · ·THE WITNESS:· That certainly might have been 12· ·the case. 13· · · Q.· (BY MS. FILLER:)· Based on what we've just 14· ·reviewed here, the findings from Judge Pratt? 15· · · A.· Yes, that might have been the case. 16· · · Q.· And based on the findings from Judge Pratt then, 17· ·Dr. Kupers' conclusion that Jay's explanation for why 18· ·those mental health segregation rounds did not evidence 19· ·significant distress is, in fact, entirely reasonable? 20· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 21· · · · · · · ·THE WITNESS:· It could be, yes. 22· · · Q.· (BY MS. FILLER:)· I mean, isn't it a reasonable 23· ·conclusion for Mr. Vermillion to say, "I'm not going to 24· ·ask for out-of-cell mental health services because I'm 25· ·not going to get them"?

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·1· · · · · · · ·MR. DICKMEYER:· Objection.· Asked and ·2· ·answered.· Form.· You can answer. ·3· · · · · · · ·THE WITNESS:· I would agree that's ·4· ·reasonable. ·5· · · Q.· (BY MS. FILLER:)· You also criticized Dr. Kupers, ·6· ·and I think this is a related critique, but that he's ·7· ·not adequately considered the possibility that Mr. ·8· ·Vermillion was malingering during his evaluations, ·9· ·correct? 10· · · A.· Yes. 11· · · Q.· And I want to be really clear about what you're 12· ·saying here.· I think that what I've read in your report 13· ·is that you agree that Dr. Kupers did, in fact, consider 14· ·the possibility that Jay might be exaggerating? 15· · · A.· Yes. 16· · · Q.· But you critique Dr. Kupers because in your view 17· ·he didn't take adequate steps to assess whether Jay 18· ·Vermillion was malingering when he met with him? 19· · · A.· That's a fair summary, yes. 20· · · Q.· Dr. Kupers is a psychiatrist, right? 21· · · A.· Yes. 22· · · Q.· And you are not a psychiatrist? 23· · · A.· Correct. 24· · · Q.· And although there are areas where the practices 25· ·of psychiatry and psychology overlap, they're not the

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·1· ·same, right? ·2· · · A.· Correct. ·3· · · Q.· And one area where it's different is that ·4· ·psychologists, such as yourself, don't prescribe ·5· ·psychiatric medication, right, as a general rule? ·6· · · A.· As a general rule, yes. ·7· · · Q.· And so if a psychologist thinks that psychiatric ·8· ·medication is indicated for a patient, he'll typically ·9· ·refer the patient to a psychiatrist, right? 10· · · A.· Typically, yes. 11· · · Q.· But only if they think that there's a need or a 12· ·potential need for the medication, right? 13· · · A.· Yes. 14· · · Q.· Otherwise, there'd be no need for a referral to 15· ·the psychiatrist, correct? 16· · · A.· Correct. 17· · · Q.· Another of the areas where there's a difference 18· ·in practice is that psychiatrists don't administer 19· ·psychological tests, right? 20· · · A.· In general -- as a general rule of practice, 21· ·correct. 22· · · Q.· Otherwise, they're taking your job, right? 23· · · A.· There would be that potential, yes. 24· · · Q.· And is it your position that Dr. Kupers, even 25· ·though he's a psychiatrist, should have administered a

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·1· ·psychological test to rule out malingering? ·2· · · A.· Yes. ·3· · · Q.· But he wouldn't do that himself, would he? ·4· · · A.· It would be my opinion that anybody conducting ·5· ·forensic examination seeks the appropriate training to ·6· ·administer whatever method is needed to answer the ·7· ·questions.· There are psychiatrists that can administer ·8· ·malingering tests.· You just simply have to get the ·9· ·appropriate training. 10· · · Q.· Or he could -11· · · A.· Or refer it out. 12· · · Q.· -- refer it to a psychologist who -13· · · A.· Yes. 14· · · Q.· -- does that kind of evaluation for a living, 15· ·right? 16· · · A.· Sure, that would be another option, yes. 17· · · Q.· But Dr. Kupers would only need to order 18· ·psychological testing if there's an indication, right, 19· ·an indication that psychological testing was needed? 20· · · A.· Yes. 21· · · Q.· Just like a psychologist referring a patient to a 22· ·psychiatrist for medication, you do the referral only if 23· ·there's an indication that it's needed? 24· · · A.· Yes. 25· · · Q.· Or like an ER doctor, right, you're not going to

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·1· ·just ask for a CAT scan unless there's an indication of ·2· ·the CAT scan's necessity, correct? ·3· · · A.· Yes. ·4· · · Q.· And here, Dr. Kupers understood that as with any ·5· ·time you evaluate someone they might be malingering, ·6· ·right? ·7· · · A.· I assume he did. ·8· · · Q.· But he found no clinical evidence of that, and so ·9· ·he didn't order psychological testing, right? 10· · · A.· That's my understanding, yes. 11· · · Q.· And there's nothing generally wrong with that 12· ·approach, right? 13· · · A.· In a non-forensic context?· No. 14· · · Q.· So your opinion then is that anytime there's a 15· ·legal case involved, there must be psychological 16· ·testing? 17· · · A.· No, absolutely not. 18· · · Q.· So why don't you tell me the difference, because 19· ·you just said in a forensic setting? 20· · · A.· Sure.· When there's a case of disability or harm 21· ·and a person is indicating harm because of the -- not 22· ·only potential, but the benefit for feigning disability 23· ·or harm, malingering should be a standard practice. 24· · · Q.· And -25· · · A.· And not rely on our clinical judgment.

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·1· · · Q.· Okay.· So if I understand you correctly, whenever ·2· ·there is a legal case where the person at issue stands ·3· ·to benefit, has some interest in the outcome of the ·4· ·case, then clinical judgment isn't enough? ·5· · · A.· Yeah.· Generally speaking, yes, I would agree ·6· ·with that.· When it's a forensic context, yes. ·7· · · Q.· You -- your report relies on a discussion of this ·8· ·issue, and we can pull it up in the report.· I believe ·9· ·it's page 12.· You discuss the importance of ruling out 10· ·malingering, and it's a text by the lead author Melton? 11· · · A.· Yes. 12· · · Q.· Are you familiar -13· · · A.· That's a textbook, yes. 14· · · Q.· Okay.· And let's look at your report.· So on page 15· ·12, the last paragraph, fourth line, "In fact, it is 16· ·increasingly recognizing that interview -- it is 17· ·increasingly recognized that interview-based approaches 18· ·to detecting malingering are of such limited utility 19· ·that tests specially designed to detect malingering 20· ·should be a routine part of forensic practice," and you 21· ·cite the Melton textbook; is that right? 22· · · A.· Yes. 23· · · · · · · ·(EXPERT EXHIBIT NO. 14 MARKED.) 24· · · Q.· (BY MS. FILLER:)· Dr. Morgan, you've just been 25· ·passed what's been marked as Expert Exhibit 14.· Would

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·1· ·this be the textbook that you're citing? ·2· · · A.· Yes. ·3· · · Q.· And I want to draw your attention to the Bates ·4· ·stamp as Vermillion 5139, subsection A, "General ·5· ·strategies for detecting feigning of symptoms."· Do you ·6· ·see that there? ·7· · · A.· Yes. ·8· · · Q.· So this would be a section on general strategies ·9· ·for detectoring -- detecting malingering, right? 10· · · A.· Correct. 11· · · Q.· And it says, "A number of strategies are 12· ·available for systematically investigating response 13· ·style.· The most common and venerable method is the 14· ·clinical interview, usually consisting of a mental 15· ·status examination or other relatively unstructured 16· ·interview procedure."· Did I read that correctly? 17· · · A.· Yes. 18· · · Q.· And do you agree then that the most common and 19· ·venerable method of detecting malingering is the 20· ·clinical interview? 21· · · A.· Yes. 22· · · Q.· If you turn to the next page, this is Vermillion 23· ·5140, and it says -- middle of -- let's see, so the 24· ·second paragraph on the left hand column, the last 25· ·sentence, and I believe this is what you're referencing

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·1· ·in your report, quote, "Increasingly, mental health ·2· ·professionals have concluded that because ·3· ·interview-based approaches to detecting malingering are ·4· ·of such limited utility, employment of instruments ·5· ·specifically designed for this purpose should be ·6· ·considered the standard of practice whenever there is a ·7· ·basis for suspecting over-reporting of symptoms," end ·8· ·quote.· Did I read that correctly? ·9· · · A.· Yes. 10· · · Q.· And so you agree then that the psychological 11· ·testing is necessary when there's a basis for suspecting 12· ·over-reporting? 13· · · A.· Yes. 14· · · Q.· Is psychological testing an infallible measure of 15· ·malingering? 16· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 17· · · · · · · ·THE WITNESS:· No. 18· · · Q.· (BY MS. FILLER:)· In fact, psychological tests 19· ·might indicate that a person is malingering when they 20· ·aren't, right? 21· · · A.· That can happen. 22· · · Q.· And a person could also game a psychological test 23· ·and it not come up that they were in fact malingering, 24· ·right? 25· · · · · · · ·MR. DICKMEYER:· Objection.· Form.

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·1· · · · · · · ·THE WITNESS:· That can happen, yes. ·2· · · Q.· (BY MS. FILLER:)· And Dr. Kupers has reported ·3· ·that in his clinical interview, in his experience, Mr. ·4· ·Vermillion was honestly reporting his symptoms, right? ·5· · · A.· Yes. ·6· · · Q.· And, for example, Dr. Kupers found that Mr. ·7· ·Vermillion didn't provide exaggerated descriptions of ·8· ·the symptoms that he suffered, right? ·9· · · A.· I don't recall him being that specific, but he 10· ·concluded that Mr. Vermillion was honestly responding. 11· · · Q.· Did Mr. Vermillion -- strike that.· When a 12· ·interview subject is providing very exaggerated 13· ·descriptions of psychiatric distress, that might be a 14· ·cue that they're malingering, right? 15· · · A.· That might be. 16· · · Q.· But Mr. Vermillion didn't, for example, report 17· ·that he was hearing voices indicating him -- indicating 18· ·that he should hurt himself, right? 19· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 20· ·speculation.· You can answer. 21· · · · · · · ·THE WITNESS:· Not -- not based on what was 22· ·presented in Dr. Kupers' report. 23· · · Q.· (BY MS. FILLER:)· He didn't tell Dr. Kupers that 24· ·he was seeing things like little green aliens, right? 25· · · · · · · ·MR. DICKMEYER:· Same objection.

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·1· · · · · · · ·THE WITNESS:· Dr. Kupers didn't report that, ·2· ·correct. ·3· · · Q.· (BY MS. FILLER:)· That kind of really stark ·4· ·description of psychiatric illness might have been a cue ·5· ·that Mr. Vermillion was over-reporting, right? ·6· · · A.· It could be, yes. ·7· · · Q.· And in fact, the constellation of symptoms that ·8· ·Mr. Vermillion described is quite consistent with the ·9· ·literatures, reports of the negative mental health 10· ·consequences of solitary confinement? 11· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 12· · · · · · · ·THE WITNESS:· Yeah, as described by Dr. 13· ·Kupers.· It's not inconsistent.· I would agree. 14· · · Q.· (BY MS. FILLER:)· And that would also indicate 15· ·that Mr. Vermillion was being truthful? 16· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 17· · · Q.· (BY MS. FILLER:)· In other words, he described 18· ·symptoms that make sense given the segregation context 19· ·and what we know about segregation? 20· · · A.· That could be an indication of honest responding, 21· ·yes. 22· · · Q.· And you have no reason to believe that Mr. 23· ·Vermillion was malingering, other than the fact that 24· ·everyone who's -- has a lawsuit has some incentive to 25· ·win their case, correct?

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·1· · · A.· Yeah, generally speaking, I would agree with ·2· ·that. ·3· · · Q.· I just want to make sure there's no extra reason ·4· ·that you think that you've identified why Mr. Vermillion ·5· ·would have been malingering? ·6· · · A.· Yeah.· No, that's an accurate summation. ·7· · · Q.· There's no requirement that in order to be -·8· ·strike that.· There's no requirement that in order to ·9· ·have their findings accepted in a court of law that 10· ·psychiatrists who perform evaluations in a legal context 11· ·obtain psychological testing of every person who they 12· ·evaluate, is there? 13· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 14· ·speculation and calls for a legal conclusion.· Form. 15· ·You can answer. 16· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I understand you're 17· ·the director of forensics here at -- Director of 18· ·Forensic Psychology, right? 19· · · A.· I'm Director of the Forensic Science Institute 20· ·and I teach in the area of Forensic Psychology. 21· · · Q.· And are you aware of the general legal context in 22· ·which mental health opinions are admitted in court? 23· · · A.· I am. 24· · · Q.· Okay.· I'll restate the question.· There is no 25· ·requirement that in order to have their opinions

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·1· ·admitted into a court of law psychiatrists who perform ·2· ·evaluations as part of a lawsuit obtain psychological ·3· ·testing of every person who they evaluate, is there? ·4· · · A.· There is no such requirement. ·5· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·6· · · · · · · ·THE WITNESS:· Sorry, David. ·7· · · Q.· (BY MS. FILLER:)· And in fact, that's not the ·8· ·standard practice for psychiatrists either, right? ·9· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 10· · · · · · · ·THE WITNESS:· Actually, I don't know what 11· ·the standard practice or best practice is for a 12· ·psychiatrist being as that I'm not a psychiatrist. I 13· ·can't -- I can't opine on that. 14· · · Q.· (BY MS. FILLER:)· Fair enough.· And Dr. Morgan, 15· ·your other criticism of Dr. Kupers is that his 16· ·literature review is incomplete; is that right? 17· · · A.· Yes. 18· · · Q.· And as a result, in your view, Dr. Kupers has 19· ·overstated the risk of harm from solitary confinement, 20· ·right?· If that's not correct, please -21· · · A.· I would just change it a little bit, overstated 22· ·the potential risk of harm. 23· · · Q.· And is that going back to the universality of the 24· ·harm? 25· · · A.· Yes.

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·1· · · Q.· So let's break that down.· Dr. Kupers does ·2· ·describe at length in his report a significant body of ·3· ·literature documenting harms from solitary confinement, ·4· ·right? ·5· · · A.· He does. ·6· · · Q.· And the literature that he's described shows that ·7· ·solitary confinement can be psychiatrically toxic? ·8· · · A.· I would agree. ·9· · · Q.· And the body of research that he's described 10· ·stretches back for many decades, right? 11· · · A.· Yes. 12· · · Q.· And it's also been done across countries, 13· ·correct? 14· · · A.· Yes. 15· · · Q.· It's not just limited to a particular subset of 16· ·prisoners?· There have been studies done around the 17· ·world? 18· · · A.· Correct. 19· · · Q.· And there have also been studies done in 20· ·different context that lend support to that research? 21· ·For example, studies of people who have been subjected 22· ·to extreme isolation in a context other than prison? 23· · · A.· Yes.· He relies on that literature as well, yes. 24· · · Q.· And that literature is supported by a coherent 25· ·theory, right?

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·1· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·2· · · · · · · ·THE WITNESS:· Yes, I would agree. ·3· · · Q.· (BY MS. FILLER:)· And can you describe what that ·4· ·theory is for why isolation is harmful? ·5· · · A.· Yeah.· Basically, depriving someone of basic ·6· ·human contact, as social beings, we -- we need social ·7· ·contact to function.· And depriving somebody of that ·8· ·basic need results in harm. ·9· · · Q.· And do you agree with that basic theory that 10· ·you've just outlined? 11· · · A.· I do. 12· · · Q.· And I take it that you would agree with me that 13· ·experts testifying in court are to work off of reliable 14· ·information? 15· · · A.· I would agree. 16· · · Q.· And that it's really important that we ensure 17· ·that only reliable opinions derived from reliable 18· ·sources are admitted into evidence when we have a trial, 19· ·right? 20· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for a 21· ·legal conclusion.· Form. 22· · · · · · · ·THE WITNESS:· Yeah, I would agree. 23· · · Q.· (BY MS. FILLER:)· So if an expert is unable to 24· ·vouch for the reliability of certain studies or data, 25· ·it's not appropriate for them to rely on it, right?

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·1· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·2· · · · · · · ·THE WITNESS:· Say that -- can you read that ·3· ·back? ·4· · · · · · · ·COURT REPORTER:· "So if an expert is unable ·5· ·to vouch for the reliability of certain studies or data ·6· ·it's not appropriate for them to rely on it, right?" ·7· · · · · · · ·THE WITNESS:· Yeah, generally speaking, I ·8· ·would agree.· I'm not sure what you mean by "vouch for ·9· ·it," but in general, I would agree. 10· · · Q.· (BY MS. FILLER:)· An expert has to rely on data 11· ·and information that they believe in their expert 12· ·opinion is reliable? 13· · · A.· I would agree. 14· · · Q.· When you write your expert reports, you're 15· ·describing the evidence that you relied upon in reaching 16· ·your conclusions, correct? 17· · · A.· Yes. 18· · · Q.· And if you don't rely on particular studies or 19· ·data, you aren't obliged to put that in your report, 20· ·right? 21· · · A.· I would agree. 22· · · Q.· And your critique of Dr. Kupers is that he 23· ·doesn't cite the Colorado study or your 2016 24· ·meta-analyses, right? 25· · · A.· Those are two that were omitted, yes.

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·1· · · Q.· What are the others, please? ·2· · · A.· Chadick, et al and Walters in 2018. ·3· · · Q.· And Chadick is the study that we've described ·4· ·earlier in Kansas? ·5· · · A.· Yes. ·6· · · Q.· In which you were also an author? ·7· · · A.· Yes. ·8· · · Q.· And which is the Walter study, please? ·9· · · A.· Yes. 10· · · Q.· Sorry, what is the Walter study? 11· · · A.· Oh, I'm sorry.· That was published in 2018 in 12· ·Criminal Justice Behavior. 13· · · Q.· And was that a longitudinal study? 14· · · A.· Yes.· It was re-analyzing data from the Colorado 15· ·study. 16· · · Q.· So no new data? 17· · · A.· Correct. 18· · · Q.· If Dr. Kupers didn't find those sources that you 19· ·just listed to be reliable sources of information, it 20· ·would be an unfair criticism to criticize Dr. Kupers for 21· ·not including them?· Do you agree? 22· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 23· · · · · · · ·THE WITNESS:· No. 24· · · Q.· (BY MS. FILLER:)· Why? 25· · · A.· Because it's our responsibility to paint a

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·1· ·complete picture for the factfinder, and that includes a ·2· ·review of the entirety of the literature.· When ·3· ·providing a review of the literature in a forensic ·4· ·report, I would report all of the literature.· I would ·5· ·highlight problems or concerns with specific bodies of ·6· ·work, but I wouldn't exclude it, particularly if it was ·7· ·contrary to my opinion. ·8· · · Q.· It sounds like you're describing two different ·9· ·things, if I may, a literature review, in which the job 10· ·is to describe all of the literature that's out there on 11· ·a given subject and draw conclusions from that versus a 12· ·opinion as to what the literature shows as to the harms 13· ·of solitary confinement. 14· · · A.· I still would stand by the position that as an 15· ·objective examiner, it's our job to -- to paint the 16· ·totality of that picture, that clinical picture, and 17· ·that includes all of the literature review. 18· · · Q.· Even if Dr. Kupers, in his opinion, believes that 19· ·certain sources of data are not reliable sources of 20· ·information? 21· · · · · · · ·MR. DICKMEYER:· Objection.· Form.· Asked and 22· ·answered.· You can answer. 23· · · Q.· (BY MS. FILLER:)· Let me ask a different 24· ·question.· Do you know if Dr. Kupers has expressed an 25· ·opinion as to the reliability of the 2010 Colorado

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·1· ·study? ·2· · · A.· Yes, he has. ·3· · · Q.· And he's, in fact, said that the findings from ·4· ·that study are unintelligible, right? ·5· · · A.· Yes, he has. ·6· · · Q.· In fact, he wrote an entire article, along with ·7· ·Dr. Stuart Grassian, to expose what he views as grave ·8· ·flaws in the Colorado study that render those findings ·9· ·not usable or helpful in any way? 10· · · A.· That's correct. 11· · · Q.· And you're familiar with his critique of the 12· ·Colorado study, right? 13· · · A.· Yes. 14· · · · · · · ·(EXPERT EXHIBIT NO. 15 MARKED.) 15· · · Q.· (BY MS. FILLER:)· You've just been passed what's 16· ·been marked as Expert Exhibit 15.· Dr. Morgan, would you 17· ·agree that this is the Kupers and Grassian critique of 18· ·the Colorado study? 19· · · A.· Yes. 20· · · Q.· In formulating his opinions, it's reasonable for 21· ·Dr. Kupers to choose not to rely on a study after he's 22· ·reviewed that study and found it to be unintelligible, 23· ·right? 24· · · A.· Again, I disagree.· It's not my opinion. 25· · · Q.· Listen to my question, though, because I think

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·1· ·we're close to being on the same page, but not quite. I ·2· ·understand you're saying that it's important to if ·3· ·you're describing all of the literature to describe that ·4· ·literature, right? ·5· · · A.· Yes. ·6· · · Q.· If Dr. Kupers' job, though, is to review the ·7· ·literature and issue an opinion reliant on reliable ·8· ·sources, then he needs to just rely on those sources ·9· ·that in his expert opinion are, in fact, reliable? 10· · · · · · · ·MR. DICKMEYER:· Objection.· Asked and 11· ·answered. 12· · · · · · · ·THE WITNESS:· I'm with you, yes. 13· · · Q.· (BY MS. FILLER:)· Okay.· You might -- I 14· ·understand that you disagree with Dr. Kupers about the 15· ·Colorado study, and we'll get to that, right? 16· · · A.· Yes. 17· · · Q.· But I just want to be fair in our criticism, 18· ·okay?· In his opinion, he knows about the Colorado 19· ·study, right? 20· · · A.· Yes. 21· · · Q.· It's not like this is -- he's missed it.· He 22· ·knows it happened, right? 23· · · A.· Correct. 24· · · Q.· He just doesn't think that it's a reliable source 25· ·on which he should be basing his opinions?

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·1· · · A.· That's my understanding, yes. ·2· · · Q.· Okay.· And do you know if Dr. Kupers has ·3· ·expressed an opinion as to the reliability of the ·4· ·meta-analyses that you published along with Paul ·5· ·Gendreau in 2016? ·6· · · A.· I believe he has, yes. ·7· · · Q.· And what would be that opinion? ·8· · · A.· That it is fatally flawed. ·9· · · Q.· So again, in your view, Dr. Kupers would need to 10· ·describe those meta-analyses if he's giving a literature 11· ·overview, right? 12· · · · · · · ·MR. DICKMEYER:· Objection.· Form.· Asked and 13· ·answered. 14· · · · · · · ·THE WITNESS:· Correct. 15· · · Q.· (BY MS. FILLER:)· But if Dr. Kupers is describing 16· ·the sources of reliable data on which he's relying to 17· ·form an opinion, then he wouldn't include the 18· ·meta-analyses because he doesn't find them reliable, 19· ·right? 20· · · A.· Again, to me, he's describing the literature in 21· ·his report.· I can see where, as you were saying 22· ·earlier, he didn't rely on that in his ultimate opinion, 23· ·but I stand by the criticism that that should have been 24· ·included. 25· · · Q.· I understand it's your meta-analyses, you have a

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·1· ·-- you have put a lot of work into those studies, I ·2· ·believe, right? ·3· · · A.· Oh, it was a lot of work. ·4· · · Q.· And in your opinion, they are a critical ·5· ·contribution to the scholarship on solitary, right? ·6· · · A.· All of the studies that he omitted, I would say, ·7· ·were important information to inform -- to inform the ·8· ·issues. ·9· · · Q.· And we've just said that the Walters is at least 10· ·working off the same data as the Colorado study, right? 11· · · A.· Correct. 12· · · Q.· So the only one that I want to just flag as 13· ·potentially new information that he omitted would be the 14· ·Chadick Kansas study? 15· · · A.· Correct. 16· · · Q.· And I take it that you understand that Dr. Kupers 17· ·is aware of those studies? 18· · · A.· I know he's aware of the Colorado study and the 19· ·meta-analysis.· I assume he's aware of the Chadick 20· ·article.· I don't know if he's aware of the Walters 21· ·study. 22· · · Q.· So you're -- you're not concerned that Dr. Kupers 23· ·might not know about all of these studies, right? 24· · · A.· Correct. 25· · · Q.· Your concern is more that what he's written in

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·1· ·his report in this case is just incomplete and missing ·2· ·some of that? ·3· · · A.· Yes. ·4· · · Q.· What is a controlled study? ·5· · · A.· A controlled study would be one where you ·6· ·systematically manage as best you can the situations ·7· ·around the experiment that you're conducting in a ·8· ·pre-post design, so you would assess individuals before ·9· ·whatever the issue at hand is.· Usually in my line of 10· ·work, that would be an intervention of some sort, like 11· ·segregation, and you would assess post and have a 12· ·control group to compare responses from the treatment 13· ·group to the control group. 14· · · Q.· It's a method of research that's designed to 15· ·measure the effect of a variable, right? 16· · · A.· Well said. 17· · · Q.· Variable or, in your term, intervention? 18· · · A.· Yes. 19· · · Q.· And the importance of having a control group is 20· ·that it's not exposed to the variable and that way you 21· ·can determine the effect of that variable, right? 22· · · A.· That's the idea with the controlled study, yes. 23· · · Q.· Is there a particular treatise or text that you 24· ·would say is the most well accepted source for how to 25· ·effectively design a controlled study?

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·1· · · A.· No, not that I'm aware of. ·2· · · Q.· Have you personally performed controlled studies? ·3· · · A.· Yes. ·4· · · Q.· And which studies are those? ·5· · · A.· I'll refer back to my curriculum vitae.· It would ·6· ·be the studies looking at individuals with and without ·7· ·mental illness that are justice involved.· There's a ·8· ·series of studies and five or six publications.· It's ·9· ·looking at comparing inmates in prison with mental 10· ·illness to individuals and inmates without mental 11· ·illness and individuals in community mental health 12· ·settings, both that are and are not justice involved, 13· ·for purposes of comparing who's going in and what's 14· ·happening in terms of mental illness with justice 15· ·involvement and what we need to do on the treatment end. 16· ·So I can point you to those studies.· It's a series of 17· ·studies. 18· · · Q.· Thank you.· Yeah, if you could just tick them off 19· ·and give us a page number? 20· · · A.· Okay.· On page 4 of 29, second from the bottom, 21· ·Gross and Morgan, 2013.· Top of the next page 22· ·Bartholomew, et al. 23· · · Q.· Sorry, I don't see -- oh, you were going 24· ·backwards. 25· · · A.· Oh, sorry, on the page, I think I did go

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·1· ·backwards and I apologize. ·2· · · Q.· That's okay. ·3· · · A.· So then to page 5 the Wolff, Morgan and Shi, ·4· ·2013.· On page 6, Wolff, Morgan, Shi, Fisher and ·5· ·Huening, 2011.· And then Morgan and Fisher, et al also ·6· ·on page 6, 2010.· So those were controlled studies, but ·7· ·not of an intervention.· If -- for controlled studies of ·8· ·an intervention, it would be McDonald, Morgan and Metz, ·9· ·2016. 10· · · Q.· Can you give me a page number? 11· · · A.· On page 4.· McDonald and Morgan, 2013 on page 5. 12· ·And that's -- the last one would be on page 9, Morgan, 13· ·Winterowd and Fuqua in 1999. 14· · · Q.· And so you've given us two categories of 15· ·controlled studies, right, ones involving an 16· ·intervention and ones without? 17· · · A.· Yes. 18· · · Q.· And the difference with an intervention, that the 19· ·point is to be able to distill the specific effects of 20· ·that intervention, right? 21· · · A.· Yes. 22· · · Q.· Do you hold yourself out as an expert in the 23· ·design and execution of controlled studies? 24· · · A.· No. 25· · · Q.· Do you agree, though, that it's important that

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·1· ·controlled studies are, in fact, controlled? ·2· · · A.· Yes. ·3· · · Q.· And that it's important in performing controlled ·4· ·studies to avoid contaminating the groups you're ·5· ·studying? ·6· · · A.· That's the ideal, yes. ·7· · · Q.· And by "contamination," I'm referring to exposing ·8· ·the control group to the intervention that you're ·9· ·attempting to measure? 10· · · A.· Correct. 11· · · Q.· And would you agree that contamination can 12· ·invalidate a study's results? 13· · · A.· It can. 14· · · Q.· Do you agree that it's difficult to perform 15· ·controlled studies in prison? 16· · · A.· It certainly can be, yes. 17· · · Q.· For example, you, as a researcher, cannot keep a 18· ·prisoner in segregation if the prison says that prisoner 19· ·doesn't need to be in segregation? 20· · · A.· Correct. 21· · · Q.· That would be unethical? 22· · · A.· Yes, it would. 23· · · Q.· And the research that's developed on solitary 24· ·confinement has not, in fact, relied on control studies 25· ·because of the difficulties in conducting such studies

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·1· ·in prison, right? ·2· · · A.· Yes, that's one of the primary issues. ·3· · · Q.· So let's talk about the Colorado study.· You've ·4· ·described it as the gold standard, right? ·5· · · A.· Yes. ·6· · · Q.· The Colorado study studied prisoners in the ·7· ·Colorado State Prison System, right? ·8· · · A.· Yes. ·9· · · Q.· There was no -- as the name suggests, no 10· ·examination of prisoners outside of Colorado, right? 11· · · A.· Correct. 12· · · Q.· And the -- it was a longitudinal study, I 13· ·understand? 14· · · A.· Yes. 15· · · Q.· And so the study lasted for about one year; is 16· ·that right? 17· · · A.· Yes. 18· · · Q.· And the study did not involve clinical 19· ·interviews, correct? 20· · · A.· Correct. 21· · · Q.· And there was no part of the study that looked at 22· ·the medical records of the prisoners, right? 23· · · A.· I believe they looked at the medical records but 24· ·did not report that in the results. 25· · · Q.· So the results of the Colorado study did not

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·1· ·include review of medical records? ·2· · · A.· Correct. ·3· · · Q.· The results of the Colorado study were solely ·4· ·based on self-scoring from prisoners? ·5· · · A.· Self-reporting. ·6· · · Q.· Self-reporting on a written score card, ·7· ·essentially? ·8· · · A.· On a paper pencil test, yes. ·9· · · Q.· And we talked earlier about peer review, 10· ·remember? 11· · · A.· Yes. 12· · · Q.· Feels like days ago.· And a peer review is one 13· ·way to ensure that studies and research is of a 14· ·reasonably high quality, right? 15· · · A.· Yes. 16· · · Q.· The Colorado study has not been published in a 17· ·peer review journal, right? 18· · · A.· Well, they published a smaller version.· Not the 19· ·full report that they submitted to NIJ, but they 20· ·published a more succinct version. 21· · · Q.· This was Maureen O'Keefe's article? 22· · · A.· Yes. 23· · · Q.· But the actual study was published just as part 24· ·of the grant that they had, right? 25· · · A.· The 2010 document was part of the reporting

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·1· ·requirements for the grant. ·2· · · Q.· And I believe if you refer to -- I think it was ·3· ·Expert Exhibit 6, that big folder that you have there, ·4· ·Dr. Morgan.· If you could just identify that the first ·5· ·tab there is the 2010 report on the Colorado study? ·6· · · A.· Yes. ·7· · · Q.· I won't ask you to look anymore at it.· You can ·8· ·put it to the side.· Just want to make sure we're ·9· ·talking about the same thing. 10· · · A.· Yes. 11· · · Q.· Since the time the Colorado study came out, it 12· ·has been subjected to heavy criticism; is that fair? 13· · · A.· Yes. 14· · · Q.· Can you describe the criticisms of the Colorado 15· ·study, please? 16· · · A.· Yeah, it's been criticized in terms of relying on 17· ·self-report, contamination of the groups, inappropriate 18· ·data collection via the individual collecting the data. 19· ·There's a few others, but those are the big ones. 20· · · Q.· Are you familiar with Dr. Craig Haney? 21· · · A.· I am. 22· · · Q.· I think we discussed earlier that you two have 23· ·been on -- found yourselves on opposite sides before? 24· · · A.· Yes. 25· · · Q.· Would you agree, though, that Dr. Haney is one of

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·1· ·the prominent researchers on the effects of solitary ·2· ·confinement? ·3· · · A.· Yes, he's recognized as such. ·4· · · Q.· And he is a vocal critic of the Colorado study, ·5· ·correct? ·6· · · A.· Yes, he is. ·7· · · Q.· Are you familiar with Dr. Haney's 2018 article ·8· ·entitled "The Psychological Effects of Solitary ·9· ·Confinement"? 10· · · A.· I am. 11· · · · · · · ·(EXPERT EXHIBIT NO. 16 MARKED.) 12· · · Q.· (BY MS. FILLER:)· And I've just passed you what's 13· ·been marked as Expert Exhibit 16.· Is this Dr. Haney's 14· ·2018 article that we were just referencing? 15· · · A.· Yes. 16· · · · · · · ·MS. FILLER:· And let's take a break so they 17· ·can change the tape. 18· · · · · · · ·THE WITNESS:· All right. 19· · · · · · · ·VIDEOGRAPHER:· We're now off the record at 20· ·2:15. 21· · · · · · · ·(Break.) 22· · · · · · · ·VIDEOGRAPHER:· We're now back on the record 23· ·at 2:17. 24· · · Q.· (BY MS. FILLER:)· Dr. Morgan, are you familiar 25· ·with the critiques that Dr. Haney raises about the

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·1· ·Colorado study in this 2018 piece? ·2· · · A.· Yes. ·3· · · Q.· And you've listed a few of them.· You mentioned ·4· ·the concerns about the research assistant, correct? ·5· · · A.· Yes. ·6· · · Q.· And according to Dr. Haney's understanding of the ·7· ·Colorado study, they had an inexperienced research ·8· ·assistant who conducted all of the testing, correct? ·9· · · A.· That's the criticism, yes. 10· · · Q.· And that this research assistant did so with very 11· ·little to no direct supervision? 12· · · A.· That's the criticism, yes. 13· · · Q.· Is that a fair criticism, the criticism 14· ·surrounding the inexperienced research assistant? 15· · · A.· It's my understanding that the research assistant 16· ·was a trained research assistant, so trained in the 17· ·methodologies of the study. 18· · · Q.· So you don't have any concerns about the research 19· ·assistant being inexperienced and the effects that that 20· ·might have had on the integrity of the results? 21· · · A.· No. 22· · · Q.· Another criticism is that the study was 23· ·commissioned by a pro segregation prison warden.· Are 24· ·you familiar with that critique? 25· · · A.· I'm sorry, say that again.

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·1· · · Q.· Another criticism is that the Colorado study was ·2· ·commissioned by a prison warden who had an interest in ·3· ·continuing use of segregation? ·4· · · A.· Yes. ·5· · · Q.· Have you heard that critique? ·6· · · A.· Yes. ·7· · · Q.· Is that a fair criticism? ·8· · · A.· Certainly I think that's a fair criticism to ·9· ·weigh when considering the potential impacts on a study. 10· · · Q.· And regarding the research assistant, I take it 11· ·that you believe that the research assistant was, in 12· ·fact, adequately trained in conducting the study; is 13· ·that fair? 14· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 15· · · · · · · ·THE WITNESS:· There was nothing in the 2010 16· ·or subsequent 2000 -- I think it was '12 article that 17· ·suggests the research assistant wasn't properly trained. 18· · · Q.· (BY MS. FILLER:)· So you're relying on the 19· ·expressed descriptions of the Colorado study from the 20· ·authors of that study? 21· · · A.· Yes. 22· · · Q.· As contained in the 2010 report that we just 23· ·looked at, right? 24· · · A.· And the 2012.· But the 2012 is really a summary 25· ·of the 2010.

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·1· · · Q.· And are you aware that some of the people who ·2· ·were involved in performing that study have since said ·3· ·that it's been taken out of context? ·4· · · A.· Yes. ·5· · · Q.· Can you describe that -- their views on that ·6· ·subject? ·7· · · A.· Yeah, that some of the authors are concerned that ·8· ·their study is being viewed as a validation of the use ·9· ·of segregation, and that was not the intent, nor their 10· ·conclusions. 11· · · Q.· The most serious critique of the Colorado study 12· ·is that there was fatal contamination of the control 13· ·group, right? 14· · · A.· I would agree. 15· · · Q.· Because if that were true, there would be real 16· ·questions as to whether the data had any value, right? 17· · · A.· It certainly could, yes. 18· · · Q.· And Dr. Haney in his 2018 article has said that 19· ·every prisoner in the 2010 Colorado study had been 20· ·exposed to a severe form of segregation right at the 21· ·start immediately before the study began, right? 22· · · A.· I don't remember exactly how he phrased it or 23· ·what he said, but I know the contamination was a 24· ·criticism. 25· · · Q.· Are you familiar with how the control group and

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·1· ·the intervention group were identified? ·2· · · A.· Yeah, I mean, generally speaking. ·3· · · Q.· Can you describe for us the basic approach to the ·4· ·study? ·5· · · A.· They pulled participants from general population, ·6· ·psychiatric care unit and segregation to participate in ·7· ·the study. ·8· · · Q.· But are you aware of how they identified those ·9· ·groups?· In other words, it wasn't random, right? 10· · · A.· Right.· Right.· I'm -- I think I need to look at 11· ·it to refresh my memory on the actual selection 12· ·procedure.· But yeah, I reviewed it. 13· · · Q.· So as I understand it, they looked at prisoners 14· ·who were in the disciplinary process, and those 15· ·prisoners would be held in a form of segregation, either 16· ·awaiting the disciplinary hearing or after.· And then 17· ·some prisoners would come out of those disciplinary 18· ·hearings and go to general population, some prisoners 19· ·would come out of that process and go to administrative 20· ·segregation, and that's how they identified the groups. 21· ·Does that sound right? 22· · · A.· That -- that sounds right. 23· · · Q.· So Dr. Haney's point in his 2018 article is that 24· ·both of those groups would have been in segregation 25· ·right before the study started then?

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·1· · · A.· Yes. ·2· · · Q.· That's contaminating the samples? ·3· · · A.· That's -- that would be his argument, yes. ·4· · · Q.· And is that a fair criticism, in your view? ·5· · · A.· I don't believe so. ·6· · · Q.· Why not? ·7· · · A.· Because, one, we're talking about pretty ·8· ·short-term segregation potentially there, and the ·9· ·authors, they looked at the issue of contamination, they 10· ·compared the groups, and there was no difference in 11· ·terms of folks that were contaminated versus those folks 12· ·that were not contaminated.· I mean, they speak to that. 13· ·They analyzed that data.· I understand what Dr. Haney is 14· ·saying in terms of at the front end they're already 15· ·contaminated. 16· · · · · · · ·If -- if to look at it in that sense, every 17· ·inmate coming into prison would essentially be 18· ·contaminated, because at some point during the booking 19· ·process they're isolated.· You can't take just every 20· ·instance of isolation and say they're contaminated. 21· ·Oftentimes, those periods of detention for disciplinary 22· ·matters, it's brief. 23· · · Q.· What would you describe as brief? 24· · · A.· A couple days. 25· · · Q.· If we look at page 383 of Dr. Haney's 2018

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·1· ·article, do you see that in this section, generally he's ·2· ·describing this issue of the initial contamination ·3· ·problem? ·4· · · A.· Yes, I see it. ·5· · · Q.· And on 382 in the second to last paragraph, he ·6· ·says, quote, "It is impossible to know whether or how ·7· ·control group prisoners were damaged by the time spent ·8· ·in punitive segregation and whether those effects ·9· ·continued throughout the study," end quote.· Do you 10· ·agree with that? 11· · · A.· I don't agree with the basic premise.· Do I agree 12· ·that -- that Dr. Haney could make the argument that that 13· ·invalidates the study?· Sure.· But I don't agree that it 14· ·does.· I don't believe that that contaminates the 15· ·samples and the groups when looking at the conditions of 16· ·long-term administrative segregation.· The psychiatric 17· ·population, I don't know that we know they had the same 18· ·level of contamination.· I'll have to -- I have to look 19· ·at it. 20· · · · · · · ·Again, they were choosing inmates from the 21· ·psychiatric unit that had behavioral problems, but I 22· ·don't know that they were in disciplinary segregation. 23· ·I would have to review. 24· · · Q.· So -25· · · A.· And if not --

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·1· · · Q.· So you're not familiar with whether in fact they ·2· ·weren't in disciplinary segregation at the start of the ·3· ·study? ·4· · · A.· I don't recall that, yeah.· I'd have to review ·5· ·the report and see. ·6· · · Q.· And if you look at page 384 of Dr. Haney's ·7· ·article, the bottom of that first paragraph. ·8· · · A.· 384? ·9· · · Q.· 384.· He says, "A key table in the National 10· ·Institute of Justice Report indicated that at the time 11· ·of their first test interval participants had spent 12· ·considerable average times in av -- other sec.· GPMI 13· ·prisoners, 12.4 days.· GPNMI, 39.8 days.· ASMI, 88.9 14· ·days.· ASNMI, 90.3 days."· Would you agree that those 15· ·periods of time are not brief? 16· · · A.· I would agree with that. 17· · · Q.· And Dr. Haney's critique as to contamination was 18· ·also that there was contamination during the one year 19· ·period as well, right? 20· · · A.· Correct. 21· · · Q.· And that his criticism is that it's clear that 22· ·prisoners in fact moved back and forth to segregation, 23· ·general population and other types of housing? 24· · · A.· Correct. 25· · · Q.· In fact, he found that 52 of 76 general

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·1· ·population control group participants spent time in ·2· ·segregation or other non-general population setting ·3· ·during the study, roughly two-thirds of the group? ·4· · · A.· Correct. ·5· · · Q.· And he found that half of the administrative ·6· ·segregation of prisoners, 60 -- about half, 62 of 127, ·7· ·spent an unspecified period of time in general ·8· ·population or elsewhere during the study? ·9· · · A.· Yes, that was his finding. 10· · · Q.· And the data that was aggregated by the Colorado 11· ·researchers did not take into account the contamination? 12· · · A.· They analyzed that data. 13· · · Q.· How so? 14· · · A.· See if I can find it.· It will take me a second 15· ·to find it in the document. 16· · · Q.· Sure.· Maybe I can restate the question, and if 17· ·you'd like to look at it, that's just fine too.· But my 18· ·understanding is that the data from the participants was 19· ·aggregated whether or not there had been contamination. 20· ·In other words, they didn't exclude the people who had 21· ·cross-contamination -22· · · A.· Correct. 23· · · Q.· -- from the aggregate data results? 24· · · A.· Correct, they did not exclude. 25· · · Q.· Another problem with the Colorado data is that

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·1· ·the Colorado system, the administrative segregation, had ·2· ·at the time of the study three different quality of life ·3· ·levels; is that right? ·4· · · A.· Yes. ·5· · · Q.· And at each quality of life level, there were ·6· ·different privileges afforded prisoners, right? ·7· · · A.· Yes. ·8· · · Q.· And at level 3, prisoners in segregation could ·9· ·have jobs? 10· · · A.· Yes, that was my understanding. 11· · · Q.· And would you agree that the ability to have a 12· ·job outside of your cell is a substantive difference 13· ·than the conditions of confinement? 14· · · A.· Relative to not having a job and being confined 15· ·to your cell?· Yes. 16· · · Q.· And the -- we've talked this morning about some 17· ·of the Canada cases regarding segregation, correct? 18· · · A.· Yes. 19· · · Q.· Are you aware that the case involving the 20· ·Canadian Corporation of Canada Civil Liberties, CCLA 21· ·Case -22· · · A.· CCLA. 23· · · Q.· I'll say that back.· That the CCLA Case in fact 24· ·rejected the Colorado study because of the quality of 25· ·life levels issue?

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·1· · · A.· No, I hadn't read that in the -- in the judgment. ·2· · · Q.· And when you included the Colorado study in your ·3· ·meta-analyses in 2016, were you aware of these critiques ·4· ·or did they post-date your work? ·5· · · A.· Some of it post-dated, but some of it I was aware ·6· ·of. ·7· · · Q.· Were you specifically aware of the contamination ·8· ·concerns? ·9· · · A.· Yes, more so of the cross-contamination during 10· ·the study than the critiques in his 2018 article 11· ·regarding the pre-contamination. 12· · · Q.· Are you aware that the Colorado Department of 13· ·Corrections has since limited the use of segregation to 14· ·15 days? 15· · · A.· Yes. 16· · · Q.· And do you agree that this indicates that the 17· ·Colorado Department of Corrections, at least, doesn't 18· ·take the findings of this study to mean that they should 19· ·continue to hold people in segregation for years at a 20· ·time? 21· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 22· ·speculation. 23· · · · · · · ·THE WITNESS:· Yeah, I would agree with that. 24· · · Q.· (BY MS. FILLER:)· In fact, are you familiar with 25· ·the name Rick Ramish (phon.)?

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·1· · · A.· I am.· I don't think I've read anything, but I'm ·2· ·familiar with the name. ·3· · · Q.· He's the long time Director of the Colorado ·4· ·Department of Corrections, right? ·5· · · A.· Okay. ·6· · · Q.· Are you aware that he's one of the foremost ·7· ·critiques of solitary confinement now? ·8· · · A.· No. ·9· · · · · · · ·MS. FILLER:· Now would be a good time to 10· ·look at the response to the subpoena.· We can take a 11· ·quick break and go off the record. 12· · · · · · · ·VIDEOGRAPHER:· We're off the record at 2:34. 13· · · · · · · ·(Break.) 14· · · · · · · ·VIDEOGRAPHER:· We're now back on the record 15· ·at 2:42. 16· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I want to just take 17· ·a minute and talk about the subpoena that you responded 18· ·to.· I understand you brought some documents here today? 19· · · A.· Yes. 20· · · Q.· Can you tell me what you have there (indicating)? 21· · · A.· In my paper file? 22· · · Q.· Yeah. 23· · · A.· I have a copy of my report, the stipulated 24· ·protective order, Plaintiff's Third Amended Prisoner's 25· ·Civil Rights Complaint under Title 42 U.S.C 1983, expert

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·1· ·report of Dan Pacholke, expert report of Terry Kupers, ·2· ·State of Indiana Presentence Investigation Face Sheet, ·3· ·Professional Services Contract and deposition of Jay ·4· ·Vermillion. ·5· · · Q.· And Dr. Morgan, I took a look at one of the ·6· ·breaks and flagged those pieces of your paper report ·7· ·that I found had handwriting on them.· Do you see that ·8· ·there? ·9· · · A.· Yes, three documents. 10· · · Q.· Okay.· Can you -- do you mind identifying the 11· ·three documents that I flagged? 12· · · A.· Dr. Kupers' expert report, State of Indiana 13· ·Presentence Investigative Report and the Professional 14· ·Service Contract. 15· · · Q.· And will you undertake to provide a scanned copy 16· ·of those handwritten -- the versions of those documents 17· ·with your handwritten notes to Counsel for the 18· ·Defendants so that they can provide them to me? 19· · · A.· Yes, I'll have that done by Friday. 20· · · Q.· Friday's just fine.· Please don't rush.· Thank 21· ·you.· And you also have a thumbdrive, I understand? 22· · · A.· Yes.· And on the thumbdrive is a copy of all the 23· ·documents that I received, which were referenced in the 24· ·report, a copy of my report, and my billing statement. 25· · · Q.· And --

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·1· · · A.· So the only thing on here that's not in here ·2· ·(indicating), I think, is the billing statement. ·3· · · Q.· And is it possible for me to have that ·4· ·thumbdrive?· Is that -·5· · · A.· Yes, but I realized I took this from the ·6· ·department today as I was running out, so it's actually ·7· ·Texas Tech property.· Can you download it? ·8· · · Q.· Yes, we'll work that out. ·9· · · A.· Only because it's state property. 10· · · Q.· I understand.· Those aren't cheap. 11· · · A.· I know how it sounds, but I would have to figure 12· ·out how to reimburse the department -13· · · Q.· Okay. 14· · · A.· -- or the university. 15· · · Q.· Well, we'll work that out, but I appreciate that. 16· ·Thank you.· And then I have here what I understand are 17· ·your communications with Defense Counsel in this case; 18· ·is that right? 19· · · A.· Yes. 20· · · Q.· Is this the total of your written communications 21· ·with Defense Counsel, understanding that there were a 22· ·few text messages just setting up logistical things? 23· · · A.· Yes, that's the totality. 24· · · · · · · ·MS. FILLER:· Okay.· And let's mark this as 25· ·Expert Exhibit 17.

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·1· · · · · · · ·(EXPERT EXHIBIT NO. 17 MARKED.) ·2· · · Q.· (BY MS. FILLER:)· Dr. Morgan, as I understand it, ·3· ·your opinions in this case rely significantly on the ·4· ·2016 meta-analyses that you conducted and described ·5· ·today, right? ·6· · · A.· That's certainly included in my opinion regarding ·7· ·the criticisms of the literature review provided by Dr. ·8· ·Kupers and Mr. Pacholke.· Less so to the two opinions ·9· ·with regard to their expert reports of Mr. Pacholke and 10· ·the nature of the evaluation by Dr. Kupers. 11· · · Q.· Are you offering an opinion in this case as to 12· ·the effects of segregation? 13· · · A.· As a global matter beyond Mr. Vermillion?· It 14· ·would be my opinion that the effects of segregation on 15· ·inmate mental -- mental health functioning -- let me say 16· ·that differently.· Inmates placed in segregation are at 17· ·risk for mental health decompensation.· Some will 18· ·experience that decompensation, some won't, some will 19· ·get better.· And as a universal measure or a universal 20· ·issue, on average inmates in segregation will experience 21· ·some decompensation relative to pre-segregation status. 22· · · Q.· Thank you for that clarification.· And your 23· ·opinions that you've just described, do those rely on 24· ·conclusions reached in your meta-analyses? 25· · · A.· It was informed by the meta-analyses, for sure.

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·1· · · Q.· Are you planning to testify as to the results of ·2· ·your meta-analyses? ·3· · · A.· Only if asked.· It informed my opinion, so ·4· ·certainly it potentially could be relevant.· But no, I ·5· ·don't have a plan to testify specifically about the ·6· ·meta-analyses, because that's not the only basis or ·7· ·source of information that informs that opinion ·8· ·regarding the effects of segregation on mental health ·9· ·functioning. 10· · · Q.· And those other sources are? 11· · · A.· The additional research and my clinical 12· ·experience. 13· · · Q.· Your clinical experience, we've talked about. 14· ·The additional research would be the Colorado study? 15· · · A.· That would be one. 16· · · Q.· The Chadick study, the Walter study? 17· · · A.· Yes, as well as others like the Zinger, et al 18· ·study. 19· · · Q.· The Zinger 2001? 20· · · A.· Yes. 21· · · Q.· That's in your meta-analyses? 22· · · A.· Yes, it is.· I would say the body of work that 23· ·informed the meta-analyses. 24· · · Q.· Okay.· Fair enough.· And if you look at tab 4 of 25· ·Expert Exhibit 6, this is the compendium of the studies

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·1· ·and exhibits that you were asked about in your CCLA ·2· ·deposition.· Is that your meta-analyses? ·3· · · · · · · ·MR. DICKMEYER:· What is the Bates number of ·4· ·that? ·5· · · · · · · ·MS. FILLER:· It's Vermillion 3585.· And I ·6· ·have a paper copy, if that would be better. ·7· · · · · · · ·MR. DICKMEYER:· That's okay. ·8· · · · · · · ·THE WITNESS:· Yes, that's my -·9· · · Q.· (BY MS. FILLER:)· Have you located it? 10· · · A.· Yes, that's my meta-analyses 11· · · Q.· As I understand it, a meta-analyses is an 12· ·analysis of the research that is out there on a given 13· ·topic.· Is that broadly correct? 14· · · A.· Yes, an empirical analysis of that body of 15· ·research. 16· · · Q.· Using statistical analysis techniques? 17· · · A.· Yes. 18· · · Q.· And using these statistical analysis techniques, 19· ·a large body of research can be analyzed to determine 20· ·the effect of a particular variable? 21· · · A.· Correct. 22· · · Q.· And your meta-analyses purport to do this for the 23· ·effects of segregation? 24· · · A.· Yes. 25· · · Q.· And the goal of the meta-analyses was to

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·1· ·determine the effect of segregation on prisoners' ·2· ·health? ·3· · · A.· Yes, and with a particular interest in the ·4· ·magnitude of that effect. ·5· · · Q.· Would you agree that the accuracy of your ·6· ·meta-analysis is only as good as the studies analyzed? ·7· · · A.· I would agree. ·8· · · Q.· As I understand it, there were two meta-analyses ·9· ·included in this 2016 piece, correct? 10· · · A.· That is correct. 11· · · Q.· There was Research Synthesis 1 and Research 12· ·Synthesis 2? 13· · · A.· Correct. 14· · · Q.· And is yours RS-2? 15· · · A.· That's right. 16· · · Q.· And Paul Gendreau's is RS-1? 17· · · A.· Yes. 18· · · Q.· And Paul Gendreau is a Canadian researcher; is 19· ·that right? 20· · · A.· Yes, he is. 21· · · Q.· And he's also worked for the Canadian Prison 22· ·System, correct? 23· · · A.· He did for a period of time, yes. 24· · · Q.· And both of your meta-analyses ruled out the vast 25· ·majority of the research on solitary confinement and did

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·1· ·not include those in your study? ·2· · · A.· I wouldn't agree with that. ·3· · · Q.· Well, RS-1 started out with 150 studies and ruled ·4· ·out all but 14, right? ·5· · · A.· I just want to get my numbers right.· They ·6· ·started with 150 documents, not necessarily studies. ·7· · · Q.· Okay.· And got down to 14? ·8· · · A.· Correct. ·9· · · Q.· And RS-2 started out with over 40,000 and cut 10· ·that down to 19? 11· · · A.· Documents, yes. 12· · · Q.· And when you say "document," are we talking about 13· ·a -- what would you say is the best way to describe what 14· ·was contained in a document? 15· · · A.· The goal was to make sure we included all 16· ·relevant works.· So if there was a document that we 17· ·could access that discussed the issue of administrative 18· ·segregation or disciplinary segregation, but the use of 19· ·segregation in corrections, we pulled it and that 20· ·counted in the 40,000, then we narrowed it down to the 21· ·research studies, and then the research studies that 22· ·actually could meet the criteria for meta-analytic 23· ·review. 24· · · Q.· And the criteria were what? 25· · · A.· It had to be -- we had to be able to develop an

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·1· ·effect size.· We had to be able to read the article, so ·2· ·it had to be in English.· It had to actually study the ·3· ·issue of segregation and the mental health -- mental ·4· ·health effects.· We were looking at adult institutions. ·5· ·Let me see if I covered them all.· Those were the ·6· ·basics.· I can look and see if I -·7· · · Q.· And so RS-1 looked at 14 studies and RS-2 looked ·8· ·at 19 studies.· How much overlap was there between the ·9· ·two? 10· · · A.· If I remember right, and I can doublecheck for 11· ·sure, but I believe -- obviously we had five that they 12· ·didn't, and I believe there was two other articles that 13· ·were different.· I'd have to doublecheck, but it's 14· ·something like that? 15· · · Q.· So out of all of the research that's been done in 16· ·solitary, would you agree that the meta-analyses is 17· ·looking at a relatively small subset of what's out 18· ·there? 19· · · · · · · ·THE WITNESS:· Can you repeat that? 20· · · · · · · ·COURT REPORTER:· "So out of all of the 21· ·research that's been done in solitary, would you agree 22· ·that the meta-analyses is looking at a relatively small 23· ·subset of what's out there?" 24· · · · · · · ·THE WITNESS:· I would say it's looking at a 25· ·majority of the empirical studies that are out there,

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·1· ·but it is a small subset of all that's been produced on ·2· ·the issue of segregation. ·3· · · Q.· (BY MS. FILLER:)· And you and your team had to go ·4· ·about determining effect sizes for each study, correct? ·5· · · A.· Correct. ·6· · · Q.· And how did you determine the weight to give ·7· ·certain effects? ·8· · · A.· Based on the data that was provided, we computed ·9· ·effect sizes based on either if the information was 10· ·provided, in which case we would just extract the effect 11· ·size, or if it wasn't provided, then we would compute it 12· ·based on available data. 13· · · Q.· Did certain studies receive greater weight due to 14· ·the sample size? 15· · · A.· We took into account weightings.· For example, 16· ·what's oftentimes done is -- I'll use the Colorado study 17· ·because that's a good example, where they looked at 18· ·depression and maybe had three measures on depression, 19· ·and they looked at anxiety, and so they had three 20· ·measures on anxiety.· That could be six different effect 21· ·sizes going in. 22· · · · · · · ·What a lot of studies will do is simply 23· ·average those effect sizes for depression and average 24· ·the effect sizes for anxiety and put that in, and that's 25· ·not accounting for variance and interdependence of

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·1· ·measures and things like that.· So what we did was we ·2· ·went one step further and used a multi-variate procedure ·3· ·to be able to account for the variance in things so that ·4· ·it would provide a more precise effect size estimate ·5· ·going into the total analysis so that we weren't simply ·6· ·overweighting a study, such like -- such as the Colorado ·7· ·study.· Because we took their effect size and put it in. ·8· ·Then it's really just a summary of the Colorado study. ·9· ·We didn't want to do that, so we used the multi-variate 10· ·meta-analytic approach such that effect sizes got 11· ·weighted appropriately to allow for a more precise 12· ·measure of the variable of interest.· So depression, 13· ·when we're looking at depression, anxiety when we're 14· ·looking at anxiety. 15· · · Q.· Does the weighting take into account the size of 16· ·the sample in a particular study?· So is a study with a 17· ·larger sample size going to get more weight? 18· · · A.· It would consider the sample size.· It also would 19· ·consider the interdependence of measures within the 20· ·outcome of interest, error variance, things of that 21· ·nature. 22· · · Q.· And the Colorado study would have the larger 23· ·sample size, right? 24· · · A.· Yes. 25· · · Q.· And we were looking earlier at Dr. Haney's 2018

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·1· ·article.· Do you recall that? ·2· · · A.· Yes. ·3· · · Q.· And he had criticisms of the Colorado study, ·4· ·which we've discussed.· One of his -- he's also ·5· ·criticized the 2016 meta-analyses and that piece, ·6· ·correct? ·7· · · A.· Yes. ·8· · · Q.· And one of his criticisms is that your ·9· ·meta-analyses rely heavily on the Colorado study, 10· ·correct? 11· · · A.· That is his criticism, yes. 12· · · Q.· So that in his view, it's essentially a 13· ·repackaging of the Colorado study? 14· · · A.· That's his opinion, yes. 15· · · Q.· And you're familiar with his critique? 16· · · A.· Yes. 17· · · Q.· Dr. Haney found that in RS-1, 24 of the 50 18· ·relevant effect sizes on psychological outcomes came out 19· ·of the Colorado study? 20· · · A.· Yes. 21· · · Q.· Is that correct? 22· · · A.· Yes. 23· · · Q.· And that for RS-2, 140 of the 210 relevant effect 24· ·sizes on psychological outcomes came from the Colorado 25· ·study?

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·1· · · A.· Correct. ·2· · · Q.· And was Dr. Haney right about that? ·3· · · A.· Yeah.· I never doublechecked those numbers, but I ·4· ·don't doubt those numbers. ·5· · · Q.· Seems about right? ·6· · · A.· Yes. ·7· · · Q.· And the meta-analyses also include a study known ·8· ·as the Zinger study from 2001 that we were talking about ·9· ·earlier? 10· · · A.· Correct. 11· · · Q.· And that's included in both RS-1 and RS-2, right? 12· · · A.· Yes. 13· · · Q.· And Dr. Haney points out that RS-1 gave the 14· ·Zinger 2001 study an incorrect weight? 15· · · A.· I don't recall that criticism. 16· · · Q.· We can look at the -- your meta-analyses 17· ·directly, would perhaps be better. 18· · · A.· Sure.· I'm going to reach back and just grab my 19· ·reading glasses. 20· · · Q.· It is small print. 21· · · A.· Yes. 22· · · · · · · ·MS. FILLER:· I'm sorry, we're looking at the 23· ·report of Dr. Zinger right now. 24· · · · · · · ·MR. DICKMEYER:· I have it. 25· · · Q.· (BY MS. FILLER:)· Dr. Morgan, if we look at

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·1· ·Vermillion 3596, this is table 2 of the meta-analyses. ·2· ·If you see -- let's just take, for example, the ·3· ·psychological outcome of anger, do you see the Zinger ·4· ·study is listed there? ·5· · · A.· Yes. ·6· · · Q.· Okay.· And do you see the sample size is reported ·7· ·as 136? ·8· · · A.· Yes. ·9· · · Q.· And if we look at table 4, which is -- we can 10· ·look at -- hold on.· Look at table 4, for example, on 11· ·Vermillion 33600, and this table N is the sample size? 12· · · A.· Yes. 13· · · Q.· And do you see under Zinger, you have listed 60 14· ·for the sample size? 15· · · A.· Yes. 16· · · Q.· So 60 and 136 is different? 17· · · A.· Yes.· So what we did was because we were looking 18· ·at pre-post, we could only look at the folks that began 19· ·but also ended, and that was 60 of the 136.· And what 20· ·Paul and his colleagues did, I believe, were looking at 21· ·the post, and so that included -- well, I'm not sure. 22· ·I'd have to doublecheck our research -23· · · Q.· How could there be more in post than pre? 24· · · A.· Yeah, I'm not sure on the 136.· I would have to 25· ·go back and see what they did on their analyses.

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·1· · · Q.· So if there's an error in terms of the sample ·2· ·size, then that would effect the weight, which would ·3· ·effect the meta-analyses, right? ·4· · · A.· If there was an error, yes. ·5· · · Q.· And there's another criticism of the Zinger ·6· ·study, right? ·7· · · A.· Yeah, there's been in a couple. ·8· · · Q.· Is one of them that the Zinger study includes ·9· ·people who are in segregation voluntarily? 10· · · A.· Yes. 11· · · Q.· Do you agree that whether a prisoner is in 12· ·solitary voluntarily or involuntarily could effect that 13· ·prisoner's experience in their confinement? 14· · · A.· It certainly could. 15· · · Q.· And by the end of the Zinger study, which lasted 16· ·60 days, only ten people were involuntarily in 17· ·segregation, correct? 18· · · A.· That sounds right. 19· · · Q.· And so approximately 80 percent of the prisoners 20· ·in the segregation group had left by the end of 60 days? 21· · · A.· Yes.· Again, that sounds correct. 22· · · Q.· Meaning that the experience of the prisoners who 23· ·had left segregation were not included in the Zinger 24· ·analysis? 25· · · A.· I'm sorry, say that again?

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·1· · · Q.· Meaning that the prisoners who had -- were not a ·2· ·part of the study at the end of 60 days, their ·3· ·experiences weren't captured in the results of that ·4· ·study? ·5· · · A.· Correct. ·6· · · Q.· And there -- prisoners who have a particularly ·7· ·difficult time in segregation might be required to leave ·8· ·segregation, right? ·9· · · A.· They might be. 10· · · Q.· And that isn't accounted for in the Zinger data, 11· ·the attrition rate? 12· · · A.· Possibly not.· Well, the attrition rate, no.· But 13· ·the reasons for the attrition, possibly not. 14· · · Q.· We don't know? 15· · · A.· Right. 16· · · Q.· And another criticism is that many of the 17· ·prisoners in the Zinger study had been in segregation 18· ·before the 60 day period, right? 19· · · A.· Correct. 20· · · Q.· So again, we have this contamination issue? 21· · · A.· Yes. 22· · · · · · · ·MS. FILLER:· Let's take a very quick break. 23· · · · · · · ·VIDEOGRAPHER:· We're now off the record at 24· ·3:05. 25· · · · · · · ·(Break.)

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·1· · · · · · · ·VIDEOGRAPHER:· We're now back on the record ·2· ·at 3:10. ·3· · · Q.· (BY MS. FILLER:)· Dr. Morgan, another of Dr. ·4· ·Haney's criticism of the meta-analyses is that some of ·5· ·the studies included aren't very probative one way or ·6· ·the other, right? ·7· · · A.· Right. ·8· · · Q.· And he noted that the Cloyes, is it, 2006 study ·9· ·-10· · · A.· Yes. 11· · · Q.· -- are you familiar with that study? 12· · · A.· Yes. 13· · · Q.· That it did not actually compare segregation 14· ·populations with general population prisoners? 15· · · A.· Right. 16· · · Q.· Is Dr. Haney correct about that? 17· · · A.· Can I pull up the Cloyes? 18· · · Q.· Yeah, it was -- so -19· · · A.· I believe it's right here. 20· · · Q.· You've got a tab there.· Yeah, it's 3651, 21· ·Vermillion 3651.· And if you look at the page describing 22· ·the method, it's Vermillion 3655.· And it says that the 23· ·participants included inmates housed in three SMUs at 24· ·the time of the study.· And an SMU, of course, is a 25· ·special or secure management unit, right?

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·1· · · A.· Right.· I'm sorry, I just have to review that. I ·2· ·don't remember if I quoted the article or not, so that's ·3· ·why I'm reviewing it.· Yeah, this was a study of super ·4· ·maximum secure facilities, which is essentially a unit ·5· ·utilizing segregation practices.· So these inmates were ·6· ·segregated.· Just not necessarily -- it's just not ·7· ·described as administrative segregation, but they were ·8· ·in a restricted housing unit. ·9· · · Q.· I agree. 10· · · A.· So what was the question, I'm sorry? 11· · · Q.· My question is there's no control group of 12· ·general population?· That's not what the study -- what 13· ·the Cloyes study is? 14· · · A.· Oh, right.· Right.· It was just a -- it only 15· ·assessed the inmates in the super max facility. 16· · · Q.· Right. 17· · · A.· Right. 18· · · Q.· So unlike the other studies that you included 19· ·based on your selection criteria, there's not a control 20· ·-- it's not a controlled study of general population 21· ·versus segregation? 22· · · A.· Correct.· This one did not have a control group. 23· ·Yes, I'm sorry, I was -24· · · Q.· It was probably a poor question. 25· · · A.· -- probably misunderstood the question.

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·1· · · Q.· That's all right.· We're on the same page now. ·2· ·And then I wanted to ask as well about the Walters 1963 ·3· ·study, which you've included.· This is at Vermillion ·4· ·3888 or tab 15.· This study included all volunteers, ·5· ·right, the prisoners volunteered to participate in the ·6· ·study? ·7· · · A.· That does sound right, but let me just ·8· ·doublecheck. ·9· · · Q.· I can point you to -- it's Vermillion 3888, under 10· ·"Method, 40 long-term prisoners volunteered for a 11· ·study." 12· · · A.· Yes, correct. 13· · · Q.· And we've already discussed that the nature of 14· ·participation as voluntary could have an effect on 15· ·prisoners' experience of those conditions? 16· · · A.· It could. 17· · · Q.· And this study also only studied the effects of 18· ·solitary confinement over a period of four days, 19· ·correct? 20· · · A.· Correct. 21· · · Q.· Would you agree that that's very different than 22· ·solitary confinement for a period of four years? 23· · · A.· I would agree. 24· · · Q.· And if I could direct your attention to the 25· ·Ecclestone 1974 study, which is Vermillion 3955?

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·1· · · A.· Yes. ·2· · · Q.· Are you familiar with this study as well? ·3· · · A.· Yes. ·4· · · Q.· And this study, as I understand it, was also all ·5· ·volunteers?· If I could point you to -·6· · · A.· Potential volunteers. ·7· · · Q.· Yeah. ·8· · · A.· Yes. ·9· · · Q.· "Methods."· All volunteers, right? 10· · · A.· Correct. 11· · · Q.· And the maximum stay in segregation that was 12· ·looked at in this study was ten days? 13· · · A.· I don't doubt that.· I don't recall that, but I 14· ·don't doubt it. 15· · · Q.· And again, we would expect to see different 16· ·effects of ten days of solitary confinement versus four 17· ·years of solitary confinement? 18· · · A.· We could. 19· · · Q.· In your report, you opine that -- and this is 20· ·your words, "the use of restrictive housing, such as AS, 21· ·will, on average, produce mild to moderate health and 22· ·mental health effects comparable to the effects of 23· ·incarceration as a general matter," end quote.· Is that 24· ·correct? 25· · · A.· That's correct.

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·1· · · Q.· And you've described that the harms that solitary ·2· ·confinement can cause include anxiety, depression, ·3· ·posttraumatic stress and somatoform complaints; is that ·4· ·right? ·5· · · A.· Yes.· So that's examples of some of the symptoms ·6· ·that can occur. ·7· · · Q.· There are more? ·8· · · A.· Oh, yes. ·9· · · Q.· Is mild to moderate health effects an average? 10· · · A.· Can you phrase that differently?· I'm not sure 11· ·I'm understanding. 12· · · Q.· Sure.· So you've said that in your opinion use of 13· ·restrictive housing will, on average, produce mild to 14· ·moderate health and mental health effects.· So when you 15· ·say "average," I'm just asking some people have much 16· ·worse than mild to moderate and some people have less 17· ·than mild to moderate health effects; is that right? 18· · · A.· Yes.· Yeah, that would be kind of the average 19· ·that you can expect across the population. 20· · · Q.· And, in fact, we assume that there are going to 21· ·be more and less severe cases when we're looking at an 22· ·average? 23· · · A.· Statistically, that's what would happen, yes. 24· · · Q.· So in your opinion, on average, prisoners in 25· ·solitary suffer mild to moderate harm, but some can be

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·1· ·harmed less than the average and some more than the ·2· ·average? ·3· · · A.· Correct. ·4· · · Q.· And regarding Mr. Vermillion, you have no basis ·5· ·to make conclusions about where he falls in that ·6· ·potential for harm? ·7· · · A.· That's correct. ·8· · · Q.· What do you consider mild to moderate mental ·9· ·health effects?· And let me specify, I'm wondering if 10· ·you're describing symptoms as to mild to moderate 11· ·intensity or if you're referring to the effect sizes? 12· · · A.· No, I'm referring to symptoms. 13· · · Q.· Okay. 14· · · A.· Yeah. 15· · · Q.· And so how would you describe mild to moderate 16· ·symptoms? 17· · · A.· Mild to moderate would be if an individual was 18· ·functioning well in general population and having no 19· ·adverse reaction or symptoms, place them in segregation, 20· ·if their mood was negatively impacted, became more 21· ·lethargic, for example, and socially withdrew, that 22· ·would be depending on the severity of those symptoms 23· ·mild to moderate.· It could be severe.· So it depends on 24· ·the severity and the impairment of function. 25· · · Q.· And so that's what I'm trying to parse, that

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·1· ·severity question.· So let's talk about lethargy.· What ·2· ·is mild lethargy, moderate lethargy and severe? ·3· · · A.· Severe would be, "I can't get out of bed.· I just ·4· ·stay in bed all day and spend 23, 20" -- or sorry, "20, ·5· ·21 hours a day in bed because I don't have the energy to ·6· ·get up.· Even if I want to get up, I don't have the ·7· ·energy."· That would be severe.· Mild would be, "Yeah, ·8· ·I'm not doing as well as I was yesterday.· I went to ·9· ·rec, but instead of running around, I just kind of 10· ·walked around.· I just wasn't feeling as good."· And 11· ·moderate would be somewhere in between. 12· · · Q.· And so then as I understand it, you agree that 13· ·there are negative mental health symptoms associated 14· ·with spending time in segregation?· Your point is just 15· ·that there's a range of severity? 16· · · A.· That's one of them, yes.· Yeah, on average, your 17· ·average inmate is going to have some negative 18· ·experiences while -- when placed in segregation.· It's 19· ·an issue of severity.· So to that point, yes. 20· · · Q.· And how would you distinguish mild, moderate or 21· ·severe feelings of suicidality? 22· · · A.· Clinically, I would be looking at -- there's 23· ·indicators of suicide.· Is there a plan?· Is there an 24· ·intent?· Is there access to -- to whatever the plan 25· ·would be?· Is there a history?· The more indicators, the

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·1· ·more severe the risk.· The fewer the indicators, "I wish ·2· ·I were dead, but I don't have a plan to kill myself," ·3· ·that's lower risk.· Then somebody who, "I want to die, ·4· ·here's how I would do it, so I have a plan," and they ·5· ·could actually carry the plan out in their current ·6· ·situation, that's higher risk. ·7· · · Q.· So let me -- I think we're -- I probably got us ·8· ·off track, because now we're talking about risk of ·9· ·actually committing suicide.· And I think it would be 10· ·maybe more probative to talk about depression or 11· ·hopelessness. 12· · · A.· Okay. 13· · · Q.· And so how do we establish if depression is mild, 14· ·moderate or severe? 15· · · A.· You can assess via clinical interview, you can 16· ·assess through behavioral observations, you can assess 17· ·with a measure.· There's different ways to get at it. 18· ·Collateral information can enlighten the clinical 19· ·interpretation.· There's a number of ways to get at 20· ·that. 21· · · Q.· And so if a prisoner reported that he wanted to 22· ·die, would that be mild, moderate or severe depression? 23· · · A.· No one indicator, no one symptom is going to 24· ·determine how we would classify a risk level or a 25· ·severity.· It's looking at a cluster of symptoms.· So

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·1· ·when looking at depression, for example, I'm looking at ·2· ·is there suicidal ideation, but I'm also looking at that ·3· ·energy level, level of lethargy, lethargic sort of ·4· ·behaviors that we're talking about, engagement in social ·5· ·activities or social withdrawal, engaging in activities ·6· ·that they usually find pleasurable.· So reading, are ·7· ·they still reading if they like to read, things like ·8· ·that.· It's looking at the cluster of symptoms that go ·9· ·to a construct like depression.· And the more that are 10· ·endorsed and the more severely they're endorsed, the 11· ·more severe the diagnosis. 12· · · Q.· And you reviewed Dr. Kupers' report regarding Mr. 13· ·Vermillion, right? 14· · · A.· I did. 15· · · Q.· And the description that he gives of Jay 16· ·Vermillion, would those effects be mild, moderate or 17· ·severe, in your opinion? 18· · · A.· I didn't think of it that way, so I'll need to 19· ·look at.· Can you give me a minute, and I'll look at the 20· ·report and see what I think? 21· · · Q.· Yeah, let's do that. 22· · · A.· So I'm using my report that I brought. 23· · · Q.· You know what?· Thank you.· I hadn't entered it 24· ·into evidence as an exhibit, but let's do that. 25· · · · · · · ·(EXPERT EXHIBIT NO. 18 MARKED.)

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·1· · · · · · · ·MS. FILLER:· And I'll note for the record ·2· ·that this is confidential under the protective order, so ·3· ·we'll maintain the confidential designation. ·4· · · · · · · ·MR. DICKMEYER:· What was the exhibit number? ·5· · · · · · · ·MS. FILLER:· 18. ·6· · · Q.· (BY MS. FILLER:)· And just as a precursor ·7· ·question, Dr. Morgan, I take it that from what you've ·8· ·just said in your work on this case, you didn't perform ·9· ·an assessment as to whether the symptoms that Dr. Kupers 10· ·identified as Mr. Vermillion having experienced whether 11· ·those were low, mild, moderate or severe effects? 12· · · A.· No, I did not. 13· · · Q.· Okay.· And so you've just been passed Expert 14· ·Exhibit 18.· If you look at page 28, there's a section 15· ·"Psychological and Physiological Response to Solitary 16· ·Confinement" that might be helpful.· I can just point 17· ·out that he describes having heart palpitations, being 18· ·nervous and anxious the entire time he was in solitary, 19· ·that he felt very strong anxiety and depression, that he 20· ·considered suicide quite a lot and tried to hang himself 21· ·with a towel, but decided against it because of his 22· ·Christianity.· That he would get enraged and start 23· ·kicking his door.· That he would then collapse, feel 24· ·anxious and worried. 25· · · A.· Yeah.· Based on what I'm reading there -- again,

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·1· ·to truly give an opinion as to Mr. Vermillion's mental ·2· ·state, I would have to do my own assessment.· But based ·3· ·on what Dr. Kupers is reporting, I'd say moderate to ·4· ·maybe severe. ·5· · · Q.· And he also describes, "quite a lot of obsessive ·6· ·thinking and compulsive activity beginning only after he ·7· ·entered solitary in 2009.· Shaving his eyebrows and ·8· ·plucking his eye lashes, changing his appearance.· That ·9· ·he was compulsive about ants and bugs on the floor, and 10· ·as he explains this to me, he physically gets down on 11· ·the floor and looks around for signs of vermin.· He 12· ·became quite compulsive about everything in his 13· ·environment being in its right place." 14· · · · · · · ·And he also goes onto describe how "he is 15· ·since leaving segregation much more withdrawn, doesn't 16· ·go to chow hall, would prefer to eat alone."· Does that 17· ·-- does that sound like the kind of functional 18· ·impairment that you were mentioning earlier? 19· · · A.· Yeah, it could be, yeah.· That's the kind of 20· ·thing I would be looking for, yes. 21· · · Q.· And so understanding that I'm not asking about 22· ·your own evaluation of Mr. Vermillion because you didn't 23· ·do one in this case, but based on what Dr. Kupers is 24· ·reporting, would you agree that these are moderate to 25· ·severe effects of solitary?

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·1· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·2· · · Q.· (BY MS. FILLER:)· I believe that's what you ·3· ·testified to a moment ago.· I'm just trying to make sure ·4· ·I understand. ·5· · · A.· Yeah, with the caveat that if the data is valid ·6· ·that Mr. Vermillion would be suffering psychological ·7· ·symptoms in the moderate to severe range, I would agree ·8· ·with that.· Whether it's attributable to segregation, I ·9· ·don't know. 10· · · Q.· And again, these are the kinds of symptoms that 11· ·have been reported as the kinds of symptoms you see from 12· ·people who have been in segregation for a long time? 13· · · A.· Yes. 14· · · Q.· And so going back to this opinion that you've 15· ·offered, "That the use of restrictive housing will on 16· ·average produce mild to moderate health and mental 17· ·health effects comparable to the effects of 18· ·incarceration as a general matter," the point there is 19· ·that you're establishing a comparison to just being in 20· ·prison? 21· · · A.· Correct. 22· · · Q.· And what are the sources that you're relying on 23· ·for that aspect of your opinion? 24· · · A.· My knowledge of the research and clinical 25· ·experience.

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·1· · · Q.· And so in your report, you have a bar graph which ·2· ·purports to show that this is the case, correct? ·3· · · A.· It provides data to support that, yes. ·4· · · Q.· And so if you could look at page 10 of your ·5· ·report for a moment? ·6· · · A.· Yes. ·7· · · Q.· You have a "Figure 1, Administrative Segregation ·8· ·versus General Incarceration Effect Size Estimates." ·9· ·The lightly shaded bars are effect sizes from the 10· ·meta-analyses that we were talking about earlier, 11· ·correct? 12· · · A.· Specifically my Research Synthesis 2. 13· · · Q.· That was my next question, so thank you.· And 14· ·then the dark bar is from the -- a Bonta and Gendreau 15· ·study from 1990; is that right? 16· · · A.· Correct. 17· · · Q.· And the point here, as I understand it, is that 18· ·the general incarceration -- effect of general 19· ·incarceration on psychological well-being is about .44? 20· · · A.· Correct. 21· · · Q.· And that would be a moderate effect size, right? 22· · · A.· Yes. 23· · · Q.· Is .5 generally considered moderate? 24· · · A.· Yeah, with the type of effects as we had here, 25· ·yes.

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·1· · · Q.· And so your point is that that is not so ·2· ·different from the effect sizes that you've identified ·3· ·in your RS-2 study? ·4· · · A.· Correct. ·5· · · Q.· So for example, mood and emotion in RS-2 had an ·6· ·effect size of .55? ·7· · · A.· Right. ·8· · · Q.· Which is a moderate effect? ·9· · · A.· Right. 10· · · Q.· Which would indicate that people in segregation 11· ·had negative effects on their mood or emotion? 12· · · A.· Correct. 13· · · Q.· And then your -- and that is itself derived from 14· ·comparing populations in segregation to populations in 15· ·general population? 16· · · A.· Correct. 17· · · Q.· And then you're comparing that to a study from 18· ·Bonta and Gendreau, a totally different study that 19· ·wasn't included in your meta-analyses? 20· · · A.· Right. 21· · · Q.· The Bonta and Gendreau study, that study was a 22· ·study of the effects of overcrowded prisons on 23· ·prisoners' psychological well-being, right? 24· · · A.· That was one aspect of it, yes.· They looked at a 25· ·few variables, but the effect size I pulled there was

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·1· ·from the overcrowding data. ·2· · · Q.· So what their goal was in establishing this ·3· ·effect size was to isolate a variable, right? ·4· · · A.· Yes. ·5· · · Q.· And the variable in that study was overcrowded ·6· ·prisons? ·7· · · A.· Correct. ·8· · · Q.· Which some prisons are overcrowded, but not all ·9· ·prisons are overcrowded? 10· · · A.· Right. 11· · · Q.· So we're comparing the effect sizes of the harms 12· ·of segregation to the effect sizes of the harms of 13· ·living in an overcrowded prison? 14· · · A.· That would be fair. 15· · · Q.· And I noticed when I was reviewing your report in 16· ·the CCLA Case that you included a similar bar graph in 17· ·that case report? 18· · · A.· Yes. 19· · · Q.· Do you recall submitting that report? 20· · · A.· Yes. 21· · · Q.· And that bar graph had another bar from a 22· ·different study for physical health? 23· · · A.· Right. 24· · · Q.· And that bar was referencing the Heigel study, 25· ·correct?

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·1· · · A.· Correct. ·2· · · Q.· And that is at tab 3 of the big compendium here, ·3· ·Expert Exhibit 5 -- no, Expert Exhibit 6.· Should be the ·4· ·third tab there (indicating). ·5· · · A.· Oh, there we go. ·6· · · Q.· Can you read the Bates number there for us? ·7· · · A.· The number at the bottom?· Vermillion? ·8· · · Q.· Uh-huh. ·9· · · A.· 003571. 10· · · Q.· Thank you.· And do you mind also referring back 11· ·to the report that you prepared for the CCLA Case?· It 12· ·was Expert Exhibit 4.· I know I told you to not worry 13· ·about the order, but -- there you go. 14· · · A.· There (indicating). 15· · · Q.· Thank you.· So the bar chart that you submitted 16· ·in that case is at Vermillion 4130.· Do you have it 17· ·there? 18· · · A.· Yes, I have it. 19· · · Q.· And so here you have your RS-1 effect sizes, the 20· ·Bonta and Gendreau effect size regarding overcrowding, 21· ·and then you had the Heigel 2010 study, which showed 22· ·.18, right? 23· · · A.· Right. 24· · · Q.· And the Heigel bar was representing physical 25· ·health, correct?

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·1· · · A.· Correct. ·2· · · Q.· And did you later learn that there was an error ·3· ·in the inclusion of this bar? ·4· · · A.· Yes, had a computational error. ·5· · · Q.· Okay.· Can you describe that computational error? ·6· · · A.· I had inverted -- I forget the exact data point ·7· ·or what, but I had it inverted. ·8· · · Q.· So as I understand, and you can tell me if this ·9· ·sounds right, but in this case you had looked at the 10· ·Heigel study, which measured physical health and given 11· ·it a negative effect size of .18 -- or negative is maybe 12· ·not the correct term, but negative health outcomes were 13· ·associated with general incarceration at a .18 effect 14· ·size? 15· · · A.· Right.· Right. 16· · · Q.· And that actually, that was a mistake and it 17· ·should have been negative .18? 18· · · A.· Yes, they improved in terms of their physical 19· ·health functioning. 20· · · Q.· And so when we compare that study's effect size 21· ·to, for example, your chart here of physical health, 22· ·which is .37 effect size from your study, that would 23· ·tend to show that there was a major difference in the 24· ·physical health of prisoners in segregation as opposed 25· ·to the physical health of prisoners in general

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·1· ·population? ·2· · · A.· Yeah, except this was prisoners in jail, inmates ·3· ·in jail, so it was a different setting.· But yes. ·4· · · Q.· Well, I mean, you included it here because you ·5· ·thought that there -·6· · · A.· Yeah, of course. ·7· · · Q.· -- was value in comparing them? ·8· · · A.· Yeah, of course. ·9· · · Q.· And so I'm curious as to why you didn't include 10· ·this in your report in our case? 11· · · A.· Because I didn't want to have to deal with the 12· ·issue of a computational error for one, and it seemed 13· ·less relevant at that point. 14· · · Q.· Well, I assume that you would have fixed the 15· ·error in this case once you realized it.· And so my 16· ·question is, why not show in your report that, you know, 17· ·actually for physical health your study and your 18· ·comparison would show that prisoners on average are 19· ·effected in terms of their physical health by 20· ·segregation? 21· · · A.· Sure. 22· · · · · · · ·MR. DICKMEYER:· Objection.· Asked and 23· ·answered.· You can answer it. 24· · · · · · · ·THE WITNESS:· So there was the issue of the 25· ·computational error.· In working on a manuscript, and

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·1· ·we've published a similar -- or we're publishing a ·2· ·similar graph, it was pointed out that the jail doesn't ·3· ·necessarily offer a good comparison.· I don't know if I ·4· ·necessarily agree with that, but that was the feedback, ·5· ·so I took it out, and I've not used it since. ·6· · · Q.· (BY MS. FILLER:)· I appreciate the explanation. ·7· ·But earlier, you were describing how the segregation in ·8· ·jail is -- can actually be comparable to that. ·9· · · A.· And I think it can be.· But it in the review 10· ·process raised an issue, so I quit using it. 11· · · Q.· And this comparison that you've shown us in this 12· ·bar graph and -- that's not in the 2016 meta-analyses, 13· ·correct? 14· · · A.· No. 15· · · Q.· The meta-analyses didn't endeavor to compare the 16· ·effect sizes found regarding segregation with the effect 17· ·sizes of general incarceration, right? 18· · · A.· I'm sorry, say that again? 19· · · · · · · ·MS. FILLER:· Can you read it back? 20· · · · · · · ·COURT REPORTER:· "The meta-analyses didn't 21· ·endeavor to compare the effect sizes found regarding 22· ·segregation with the effect sizes of general 23· ·incarceration?" 24· · · · · · · ·THE WITNESS:· No, the meta-analyses is a 25· ·comparison of what happens in terms of mental health

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·1· ·functioning in segregation relative to where folks were ·2· ·at in terms of mental health functioning in general pop, ·3· ·not to directly compare effect sizes from ad seg to ·4· ·effect sizes in general pop. ·5· · · Q.· (BY MS. FILLER:)· Right.· And so this is why, to ·6· ·me, this bar graph seems duplicative in a way.· The ·7· ·meta-analyses, the goal, is to compare segregation in ·8· ·general population to isolate the effect of segregation ·9· ·on those prisoners as compared to general population, 10· ·right? 11· · · A.· Right. 12· · · Q.· So comparing that to a wholly different study 13· ·that purports to show the effect sizes of general 14· ·incarceration on mental health, we just did that. 15· · · A.· Okay.· I'll try to explain.· It's my opinion that 16· ·when you take somebody from general population and put 17· ·them in segregation, there's going to be a negative 18· ·effect on average, and that's what our meta-analyses 19· ·shows in the mild to moderate range. 20· · · · · · · ·It's also my opinion that the effect that 21· ·you experience or observe in that analysis will be the 22· ·same when you take somebody from outside of prison and 23· ·put them in prison.· There will be a negative reaction 24· ·to being incarcerated.· And that negative reaction to 25· ·being incarcerated in terms of magnitude of effect is

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·1· ·about the same is what you're going to get when you take ·2· ·an inmate from general population and put them in ·3· ·segregation. ·4· · · Q.· Are the populations that you're comparing, using ·5· ·for your comparison, the general population here at the ·6· ·Bonta and Gendreau, generally, are you accounting for ·7· ·the fact that those folks might be in segregation at ·8· ·some point? ·9· · · A.· No. 10· · · Q.· Have you published in a peer review journal your 11· ·work to compare the effect sizes of segregation that you 12· ·found in your 2016 meta-analyses with the effect sizes 13· ·of general incarceration on prisoners' well-being? 14· · · A.· If I did, it would be in that Corrections Today 15· ·article.· And I don't remember, I think we published a 16· ·figure, but I don't remember if I had the general pop 17· ·figure.· I'd have to look at it.· I think it's in here. 18· · · Q.· It's okay.· That would be the only one that 19· ·you can think of? 20· · · A.· That would be the only one, yes. 21· · · Q.· Okay.· Your 2016 meta-analyses study posits that 22· ·"It could be that prisoners who suffer the most in 23· ·segregation do so because of a culture of harm."· Do you 24· ·recall that? 25· · · A.· Yes.

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·1· · · Q.· And you define the term "culture of harm" as a ·2· ·situation in which correctional staff, quote, "NAS ·3· ·denigrate, harass and treat inmates capriciously, and ·4· ·induce uncertainty as to how long they will remain in AS ·5· ·while providing little in the way of treatment and ·6· ·related services," end quote.· Do you recall that aspect ·7· ·of your study? ·8· · · A.· Yes. ·9· · · Q.· Do you agree that such a culture is likely to 10· ·cause mental suffering? 11· · · A.· It certainly could, and it would be -- it would 12· ·increase the risk, for sure. 13· · · Q.· Do you agree that when prisoners have no idea 14· ·when or if they'll be able to leave administrative 15· ·segregation that lack of certainty is likely to cause 16· ·psychological distress -17· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 18· ·speculation. 19· · · Q.· (BY MS. FILLER:)· -- based on your study?· You're 20· ·the expert. 21· · · A.· Yeah, I would say that, again, it certainly 22· ·increases the risk, but it's not necessarily a universal 23· ·fact that indeterminate sentencing in segregation is 24· ·going to cause harm.· But that's one of the factors that 25· ·-- that I discuss as something that we can change to

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·1· ·reduce risk. ·2· · · Q.· Certainty of the steps that a prisoner needs to ·3· ·take to get themselves back to general population could ·4· ·help? ·5· · · A.· Yes.· I talk about that in the Corrections Today ·6· ·article. ·7· · · Q.· That's part of your thesis of the Stepping Up, ·8· ·Stepping Out is that prisoners should have a pathway out ·9· ·of segregation, right? 10· · · A.· Yes.· We don't have that woven into that program 11· ·because it's a treatment program, but stepdown process 12· ·to go from segregation to general population is good 13· ·practice. 14· · · Q.· And it's good for prisoners' mental well-being? 15· · · A.· I believe it can enhance inmates' well-being, 16· ·yes. 17· · · Q.· You also state in your report, and I believe you 18· ·said this in other cases as well, that, quote, "At the 19· ·individual level, some inmates placed in AS will 20· ·experience negative effects, some will not experience 21· ·negative effects, and some will experience improved 22· ·functioning," end quote.· And I won't belabor the point, 23· ·but I take it that you're relying on your clinical 24· ·experience and your study of the sources that we talked 25· ·about today?

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·1· · · A.· Yeah, I would say the body of literature, which ·2· ·would include -- yeah, the studies we've talked about ·3· ·today, yes. ·4· · · Q.· What do you rely on for your opinion that some ·5· ·prisoners will improve their functioning due to the ·6· ·segregation? ·7· · · A.· Well, that -- and one would go to my clinical ·8· ·experience.· I observed that.· I would include in there ·9· ·inmates that have asked to be in segregation.· But also 10· ·if you look at the meta-analyses and some of the other 11· ·studies, statistically it suggests that you're looking 12· ·at averages.· If the average is in the mild to moderate 13· ·range on whatever variable and whatever study, that 14· ·would suggest that some people are going to be higher 15· ·but then some people are going to be lower.· So 16· ·statistically, it makes sense as well, and I think 17· ·that's supported, at least in part, by the meta-analyses 18· ·and some of the other research. 19· · · Q.· Well, if I understand averages, if you're going 20· ·to find a mild to moderate, as we said, some will have 21· ·the larger effect, some will have a less serious effect. 22· ·That doesn't necessarily mean that some are going to get 23· ·so much better than they were before, does it? 24· · · A.· Not nec -25· · · · · · · ·MR. DICKMEYER:· Objection.· Form.

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·1· · · · · · · ·THE WITNESS:· Sorry.· Not necessarily. ·2· · · Q.· (BY MS. FILLER:)· So that's not an inevitable ·3· ·conclusion from -- from that body of research? ·4· · · A.· No, I would say that's not an inevitable ·5· ·conclusion from any of the research. ·6· · · Q.· And you've said that in your experience some ·7· ·prisoners experience improved functioning while in ·8· ·segregation, and you've said that that is true ·9· ·especially for people who are there voluntarily, right 10· ·-- or may not especially, but one category is people who 11· ·are there voluntarily? 12· · · A.· Yeah, I wasn't putting those two issues together, 13· ·but it seems to reason and my experience in interviewing 14· ·inmates for various reasons, if they're asking to be in 15· ·segregation it's because they feel like that's a better 16· ·place for them where they will do better.· So that's one 17· ·consideration. 18· · · · · · · ·Separate from that, my clinical experience 19· ·in working with inmates in segregation, I observed 20· ·inmates that improved in terms of functioning. 21· · · Q.· I agree, and I just want to take them separately 22· ·for a moment, if I could. 23· · · A.· Sure. 24· · · Q.· So in terms of prisoners who asked to be in 25· ·segregation, that's called protective custody, right?

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·1· ·They're asking to be in segregation because there's a ·2· ·threat to them in general population, and they need to ·3· ·be in segregation for safety? ·4· · · A.· Sometimes.· Not always, but sometimes. ·5· · · Q.· So for those prisoners, they might improve in ·6· ·functioning because they're not at immediate risk of ·7· ·being killed? ·8· · · A.· Or harmed.· For those prisoners, that certainly ·9· ·could be the case. 10· · · Q.· And then with regards to your clinical 11· ·experience, are you describing a time in Kansas?· What 12· ·clinical experience have you had where you've witnessed 13· ·a prisoner who has improved their mental health 14· ·functioning while they were in segregation? 15· · · A.· Most specifically, my time in Kansas. 16· · · Q.· And that was the period we talked about in the 17· ·early '90s? 18· · · A.· Yes. 19· · · Q.· You -- we've referred to this at various times 20· ·today, but your report cites a recent Kansas study with 21· ·the lead author Chadick.· It was -- it came out in 2018, 22· ·right? 23· · · A.· Yes. 24· · · Q.· And that study relied entirely on self-scoring, 25· ·correct?

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·1· · · A.· Yes. ·2· · · Q.· Did not include clinical evaluations? ·3· · · A.· Correct. ·4· · · Q.· The prisoners completed a psychological ·5· ·instrument called the MCMI-3? ·6· · · A.· Yes. ·7· · · Q.· And as I understand it, that's a 175 question ·8· ·true/false psychological instrument? ·9· · · A.· That's correct. 10· · · Q.· And in the Chadick study, you had a relatively 11· ·small sample size of 50; is that right? 12· · · A.· I think it was 40.· Maybe it was 50.· It was 40 13· ·or 50. 14· · · Q.· Fair enough. 15· · · A.· It was small. 16· · · Q.· And the study noted that the -- it was a small 17· ·sample size because there wasn't enough funding? 18· · · A.· Yeah, it was a student project. 19· · · Q.· Did you or the study authors ever apply for 20· ·funding for that study? 21· · · A.· No. 22· · · Q.· And did the study evaluate prisoners in some of 23· ·the same segregation units that you yourself had worked 24· ·in when you were a mental health professional in Kansas? 25· · · A.· That I don't know.· That's a -- I never thought

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·1· ·of that.· That's a -- I don't know.· I would have to ask ·2· ·the lead author. ·3· · · Q.· And the study did find that "AS was associated ·4· ·with higher scores, which would indicate more severe ·5· ·symptomatology, on every scale as compared to general ·6· ·population, including anxiety, somatoform disorder, ·7· ·dysnea, PTSD and major depression"? ·8· · · A.· Let me look.· Is that -·9· · · Q.· Do you have the Chadick? 10· · · A.· I don't know if that's an exhibit. 11· · · · · · · ·(EXPERT EXHIBIT NO. 19 MARKED.) 12· · · Q.· (BY MS. FILLER:)· Dr. Morgan you've just been 13· ·passed Exhibit 19.· Is this the Chadick study that we've 14· ·been discussing? 15· · · A.· Yes. 16· · · Q.· And if I could draw your attention to Vermillion 17· ·4533, please? 18· · · A.· Yes. 19· · · Q.· And under "Results," do you see where there was a 20· ·significant effect on housing location on the scores for 21· ·the measures that I've just indicated? 22· · · A.· Yes. 23· · · Q.· And this article, the Chadick piece, also 24· ·recommends a series of interventions or best practices, 25· ·correct?

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·1· · · A.· Yes, we did. ·2· · · Q.· And one of them is the Stepping Up, Stepping Out ·3· ·Program that you yourself developed? ·4· · · A.· Yes, we included that simply as an example of ·5· ·something that somebody might use in intervening. ·6· · · Q.· I want to make sure that I understand your ·7· ·criticism of Mr. Pacholke's report, if I could? ·8· · · A.· Yes. ·9· · · Q.· Mr. Pacholke, you understand that he's a longtime 10· ·corrections professional, right? 11· · · A.· Yes. 12· · · Q.· And your work in corrections has always been in 13· ·the mental health sector, right? 14· · · A.· That's correct. 15· · · Q.· You have not worked as a prison administrator or 16· ·a prison official, correct? 17· · · A.· Correct. 18· · · Q.· And I take it you do not hold yourself out as an 19· ·expert in correctional practices? 20· · · A.· Correct. 21· · · Q.· And your criticism of Mr. Pacholke is that he 22· ·says prison administrators should have let Mr. 23· ·Vermillion participate in a stepdown program.· Because 24· ·you say it's an unfair criticism, stepdown programs 25· ·weren't best practices at the relevant period?

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·1· · · A.· That rehabilitation as a practice for altering ·2· ·inmate behavior in ways that would help them stay out of ·3· ·segregation wasn't commonly recognized as a -- as a ·4· ·practice within segregation. ·5· · · Q.· But you agree -·6· · · A.· At that time, yeah. ·7· · · Q.· But you agree that prisoners in segregation ·8· ·should be given incentives to improve their behavior and ·9· ·leave segregation? 10· · · A.· I do. 11· · · Q.· And you agree that there should be a clear 12· ·pathway for them to work their way out of segregation? 13· · · A.· I do. 14· · · Q.· So your problem with Mr. Pacholke's conclusions 15· ·is that you don't agree it was the best practice or the 16· ·common practice as of 2009 to 2013 when Mr. Vermillion 17· ·was himself in segregation? 18· · · A.· Correct. 19· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 20· · · Q.· (BY MS. FILLER:)· Are you familiar with the Act 21· ·Program in the Indiana Department of Corrections? 22· · · A.· No. 23· · · Q.· I'll represent to you that Gary Brennan, who is a 24· ·Defendant in this case, testified that he developed the 25· ·Act Program as a way for prisoners in segregation to

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·1· ·stepdown from segregation.· Did you have that ·2· ·information when you expressed your criticism of Mr. ·3· ·Pacholke's conclusion? ·4· · · A.· No. ·5· · · Q.· And were you aware that Mr. Brennan developed the ·6· ·Act Program for Indiana after he had observed a similar ·7· ·program in Colorado? ·8· · · A.· No. ·9· · · Q.· And I don't know what the program was 10· ·specifically that he observed in Colorado, but seems 11· ·like it's possible it's that quality of life privileges 12· ·model that we discussed earlier, because we know that 13· ·Colorado did, in fact, have some kind of incentive-based 14· ·program at the time of the Colorado study, right? 15· · · A.· Yes, they did in Colorado. 16· · · Q.· And the Colorado study came out in 2010, right? 17· · · A.· Right. 18· · · Q.· So at least if you -- if you accept for a moment 19· ·my representation regarding what Mr. Brennan testified 20· ·to, then you'd agree that Indiana and Colorado, at 21· ·least, had stepdown incentive-based programs at the 22· ·relevant period? 23· · · A.· Yeah, based on what you're telling me, yes. 24· · · · · · · ·MS. FILLER:· I think we're just about done. 25· ·Let's take a couple of minutes so I can review and see

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·1· ·if there's anything I've missed. ·2· · · · · · · ·THE WITNESS:· Okay. ·3· · · · · · · ·VIDEOGRAPHER:· We're now off the record at ·4· ·4:0 -- 4:01. ·5· · · · · · · ·(Break.) ·6· · · · · · · ·VIDEOGRAPHER:· We're now back on the record ·7· ·at 4:17. ·8· · · Q.· (BY MS. FILLER:)· Just a few more questions, Dr. ·9· ·Morgan. 10· · · A.· Okay. 11· · · Q.· Do you -12· · · · · · · ·VIDEOGRAPHER:· Can you put your mike on? 13· · · · · · · ·MS. FILLER:· Nope.· Thank you. 14· · · Q.· (BY MS. FILLER:)· You criticized Dr. Kupers for 15· ·referring to SHU Post-Release Syndrome; is that right? 16· · · A.· Yes. 17· · · Q.· And as I understand it, your criticism is that 18· ·this isn't a official diagnosis in the DSM, right? 19· · · A.· Well, that it's not an official diagnosis and not 20· ·a scientifically accepted syndrome. 21· · · Q.· Do you agree that the symptoms that he describes 22· ·are, in fact, symptoms that have been associated with 23· ·people after they've been released from long-term 24· ·solitary? 25· · · A.· I do.

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·1· · · Q.· And you've described in your report an anonymous ·2· ·prisoner.· You call him, I think, Prisoner A? ·3· · · A.· Yes. ·4· · · Q.· And I've reviewed a few of your reports in other ·5· ·cases now, and I feel like I've seen that description ·6· ·also attributed to a prisoner named Jonathan? ·7· · · A.· Yes. ·8· · · Q.· And is that just the same person but a different ·9· ·way of anonymizing the prisoner for purposes of 10· ·confidentiality? 11· · · A.· That's correct. 12· · · Q.· And I read in one of the depositions, I believe, 13· ·that Jonathan, or Prisoner A, was a real prisoner who 14· ·you evaluated in Pelican Bay? 15· · · A.· Correct. 16· · · Q.· And how many prisoners did you evaluate in 17· ·Pelican Bay again? 18· · · A.· Somewhere between 40 and 50. 19· · · Q.· And was Jonathan the only prisoner who -- well, 20· ·strike that.· Some prisoners, I assume, from that sample 21· ·described negative mental health effects from 22· ·segregation? 23· · · A.· Correct. 24· · · Q.· And some of those negative mental health effects 25· ·were severe, some were moderate, and Jonathan would have

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·1· ·been in the low end? ·2· · · A.· Yes. ·3· · · Q.· Was Jonathan the prisoner who had the least ·4· ·negative effects from segregation? ·5· · · A.· I don't recall specifically.· He was not one of ·6· ·the class members named.· And relative to them, yes. ·7· ·Relative to the others, I would need to go back and look ·8· ·at my -- my notes on that. ·9· · · Q.· One moment.· I see you've already got it? 10· · · A.· Yes. 11· · · Q.· Expert Exhibit 5, which is the deposition, or as 12· ·the Canadians call it, cross-examination transcripts, 13· ·from the Canadian Civil Liberties Association, the CCLA 14· ·Case? 15· · · A.· Yes. 16· · · Q.· And if I could draw your attention to Vermillion 17· ·4341, which is page -18· · · A.· I'm there. 19· · · Q.· Okay.· And you were asked at line 13, quote, "Dr. 20· ·Morgan, how does Jonathan, the Jonathan example, relate 21· ·to the other 150 you interviewed?"· Answer, "And just to 22· ·be clear, it was approximately 150.· I don't recall the 23· ·exact number, somewhere around 130 to 150.· Jonathan 24· ·reported less concerns."· And then goes on to say on the 25· ·next page that essentially, "He expressed no concerns

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·1· ·and no significant distress, whereas the majority of ·2· ·other inmates I interviewed expressed distress and ·3· ·concern resulting from their segregation placement." ·4· ·Does that refresh your recollection some? ·5· · · A.· Yes, it does.· Yeah. ·6· · · Q.· And is this deposition testimony that you gave in ·7· ·the CCLA Case regarding Jonathan accurate? ·8· · · A.· Yes, it's accurate. ·9· · · · · · · ·MS. FILLER:· No further questions at this 10· ·time.· Thank you. 11· · · · · · · ·THE WITNESS:· Thank you. 12· · · · · · · ·MR. DICKMEYER:· I don't have any questions 13· ·at this time.· So we're off the record. 14· · · · · · · ·VIDEOGRAPHER:· We're off the record at 4:23. 15· · · · · · · ·(End of video part of depo.) 16· · · · · · · ·MR. DICKMEYER:· Would you like an 17· ·opportunity to read and sign the transcript or waive? 18· · · · · · · ·THE WITNESS:· Whichever.· I mean, I don't 19· ·know.· I don't think I've ever been asked that. 20· · · · · · · ·MR. DICKMEYER:· We'll take the signature. 21· ·You can send it to our office, and I'll get it over to 22· ·Dr. Morgan. 23· · · · · · · ·(Deposition concluded.) 24· · · · · · · ·(Signature of witness required.) 25

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·1· · · · · · · · · ·CHANGES AND SIGNATURE ·2· ·WITNESS NAME:· DR. ROBERT MORGAN ·3· ·DATE OF DEPOSITION:· May 21, 2019 ·4· ·PAGE LINE· · · CHANGE· · · · · ·REASON ·5· ·________________________________________________________ ·6· ·________________________________________________________ ·7· ·________________________________________________________ ·8· ·________________________________________________________ ·9· ·________________________________________________________ 10· ·________________________________________________________ 11· ·________________________________________________________ 12· ·________________________________________________________ 13· ·________________________________________________________ 14· ·________________________________________________________ 15· ·________________________________________________________ 16· ·________________________________________________________ 17· ·________________________________________________________ 18· ·________________________________________________________ 19· ·________________________________________________________ 20· ·________________________________________________________ 21· ·________________________________________________________ 22· ·________________________________________________________ 23· ·________________________________________________________ 24· ·________________________________________________________ 25· ·________________________________________________________

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·1· · · · · I, DR. ROBERT MORGAN, have read the foregoing ·2· ·deposition and hereby affix my signature that same is ·3· ·true and correct, except as noted above. ·4 ·5· · · · · · · · · · · · · · _______________________ · · · · · · · · · · · · · · · DR. ROBERT MORGAN ·6 ·7 ·8· ·THE STATE OF __________) ·9· ·COUNTY OF _____________) 10· · · Before me, ___________________________, on this day 11· ·personally appeared DR. ROBERT MORGAN known to me (or 12· ·proved to me under oath or through ________________) 13· ·(description of identity card or other document) to be 14· ·the person whose name is subscribed to the foregoing 15· ·instrument and acknowledged to me that they executed the 16· ·same for the purposes and consideration therein 17· ·expressed. 18· · · Given under my hand and seal of office this 19· ·__________ day of ___________________, __________. 20 21 22· · · · · · · · · · · · __________________________________ · · · · · · · · · · · · · NOTARY PUBLIC IN AND FOR 23· · · · · · · · · · · · THE STATE OF _____________________ · · · · · · · · · · · · · COMMISSION EXPIRES:· _____________ 24 25

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·1· · · · · · · IN THE UNITED STATES DISTRICT COURT · · · · · · · ·FOR THE SOUTHERN DISTRICT OF INDIANA ·2
·3· ·JAY VERMILLION,· · · · ·) · · · · · · · · · · · · · · ·) ·4· · · Plaintiff,· · · · · ·) · · · · · · · · · · · · · · ·) ·5· ·VS.· · · · · · · · · · ·) Case No. 1:15-CV-0605-RLY-TAB · · · · · · · · · · · · · · ·) ·6· ·MARK LEVENHAGEN, et al, ) · · · · · · · · · · · · · · ·) ·7· · · Defendants.· · · · · )
·8 · · ·******************************************************** ·9· · · · · · · · · ·REPORTER'S CERTIFICATION · · · ·ORAL AND VIDEOTAPED DEPOSITION OF DR. ROBERT MORGAN 10· · · · · · · · · · · · ·May 21, 2019
11· · · · · I, Jamie Jackson, Certified Shorthand Reporter in
12· ·and for the State of Texas, hereby certify to the
13· ·following:
14· · · · · That the witness, DR. ROBERT MORGAN, was duly
15· ·sworn by the officer and that the transcript of the oral
16· ·deposition is a true record of the testimony given by
17· ·the witness;
18· · · · · That pursuant to the applicable rules, the
19· ·deposition was submitted on ___________, 2019 to the
20· ·witness or to the attorney for the witness for
21· ·examination, signature and return to me by ___________,
22· ·2019;
23· · · · · That the amount of time used by each party at the
24· ·deposition is as follows:
25· · · · · MS. MAGGIE E. FILLER:· 05 HOURS: 16 MINUTES

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·1· · · · · MR. DAVID C. DICKMEYER:· 00 HOURS: 00 MINUTES ·2· · · · · · · ·That pursuant to information given to the ·3· ·deposition officer at the time said testimony was taken, ·4· ·the following includes counsel for all parties of ·5· ·record: ·6· · · · · MS. MAGGIE E. FILLER, Attorney for Plaintiff ·7· · · · · MR. DAVID C. DICKMEYER, Attorney for Defendants; ·8· · · · · That $__________ is the deposition officer's ·9· ·charges to the Plaintiff for preparing the original 10· ·deposition transcript and any copies of exhibits. 11· · · · · I further certify that I am neither counsel for, 12· ·related to, nor employed by any of the parties or 13· ·attorneys in the action in which this proceeding was 14· ·taken, and further that I am not financially or 15· ·otherwise interested in the outcome of the action. 16· · · · · Certified to by me this ___ day of May, 2019. 17 18 · · · · · · · · · · · · · ______________________________ 19· · · · · · · · · · · · JAMIE JACKSON, CSR, Texas CSR #2583 · · · · · · · · · · · · · Expiration:· 04/30/21 20· · · · · · · · · · · · McCorkle Litigation Services, Inc. · · · · · · · · · · · · · 200 N. LaSalle Street, Ste 2900 21· · · · · · · · · · · · Chicago, IL· 60601 · · · · · · · · · · · · · Phone:· (312) 263-0052 22 23 24 25

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$
$285 79:10
$8,000 79:18
0
003571 181:9
02111 2:5
1
1 3:8 8:11,13 80:11 156:11 178:7
10 3:16 24:6 26:8 71:3, 5 77:25 78:1 178:4
106 3:19
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10:34 40:14
10:55 53:18
11 3:17 19:24 26:10 74:8,10 107:10
116 3:20
11:04 53:21
11:31 67:10
11:33 67:13
12 3:18 96:12,14 108:14 116:9,15 141:16
12.4 146:13
127 147:6
128 3:21
12:31 103:6
13 3:19 27:3 106:25 107:2 199:19
130 199:23
136 163:7,16,19,24
139 3:22
14 3:20 28:21 116:23, 25 157:4,7 158:7
140 161:23
15 3:8,21 68:23 69:9 95:20 128:14,16 149:14 168:4
150 157:3,6 199:21,22, 23
153 3:23
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1643 107:12
1644 108:11,15
17 3:23 30:20 33:1 152:25 153:1
174 3:24
175 192:7
18 3:24 32:1 174:25 175:5,14 181:22 182:11,13,17
181 62:21
182 63:12
19 3:25 157:10 158:8 193:11,13
193 3:25
1963 168:2
1974 168:25
1983 150:25
1990 178:15
1992 46:4 49:22 50:12 54:19
1993 46:4 49:22 50:12 54:20
1998 51:24 54:21
1999 51:24 54:21 134:13
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4:8 1:19
103:9
2
2 3:2,8 15:25 16:2 156:12 163:1 178:12
20 50:15 60:10,22 77:25 78:1 102:19 172:4
200 3:4
2000 13:11 141:16
2001 41:19 154:19 162:8, 14
2002 43:6
2005 20:11 43:13
2006 20:11 166:8
2009 176:7 195:16
201 3:5
2010 15:23 127:25 134:6 137:25 138:5 141:15,22,25 142:19 181:21 196:16

2011 134:5
2012 43:1,6 141:24
2013 39:13,20 40:3 50:1, 11 54:23 133:21 134:4,11 195:16
2015 40:4
2016 15:15 19:16 29:16 30:10,15 68:3 90:6 91:2,16 92:3 125:23 130:5 134:9 149:3 153:4 156:9 161:5 184:12 186:12,21
2017 14:14 29:9,19 35:25
2018 14:11 20:12 27:3 30:16 126:2,11 139:7,14 140:1 142:18 143:23 144:25 149:10 160:25 191:21
2019 4:3 8:25 38:1 77:16
203 3:5
21 16:8 34:7 172:5
210 161:23
21st 4:3
23 36:24 172:4
24 37:20 41:18 79:22 161:17
25 79:22
260 64:2
261 64:11
28 175:14
29 9:1 133:20
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3 3:10 14:14 60:13,15 148:8 181:2
30 48:16,17,19 49:15 50:15 102:19 108:25
30-day 107:18
317 234-2265 2:12
33600 163:11
3375 3:13 67:22
350 25:15
3585 155:5

3596 163:1
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3651 166:20,21
3655 166:22
37 61:6 182:22
382 145:5
383 144:25
384 146:6,8,9
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40 62:16 73:7 168:10 192:12 198:18
40,000 157:9,20
400 25:15
4130 181:16
42 150:25
4341 199:17
4375 3:10 60:20
44 178:19
4405 60:25
4409 62:17
4422 63:21
4533 193:17
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50 73:8 161:17 192:11,

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90.3 146:14
90s 191:17
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a.m. 4:6
ability 108:1 148:11
absolute 92:23
absolutely 17:22 74:6,7 83:2,4 85:12 98:15 115:17
abuse 37:2 52:17,20
ACA 15:12 96:6,11
academic 12:25 13:2,10 51:21
accept 196:18
accepted 13:20,21 87:12 121:9 132:24 197:20
accepting 110:14
access 15:11 86:20 157:17 172:24
account 101:7 147:11 159:15 160:3,15
accounted 165:10
accounting 159:25 186:6
accredited 51:23
accuracy 156:5
accurate 6:8,14,24 26:2 61:19 64:20 67:4 71:11 121:6 200:7,8
accurately 8:22 61:12 64:14
ACLU 95:12,15
acquitted 52:7
Act 195:20,25 196:6
action 58:23 62:12 106:14
actively 18:18,19
activities 174:5
activity 176:6
actual 45:17 93:25 137:23 143:11
ad 185:3
add 7:24
additional 48:5 73:7 80:20 154:11,14
addresses 32:20,22 34:3,4

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adequacy 109:19
adequate 106:22 112:17
adequately 100:5,8,9,10,17 112:7 141:12
admin 49:16
administer 113:18 114:6,7
administered 21:5 113:25
administering 37:6
administrative 14:17 16:5,10 19:14, 19 25:25 26:22 27:5 28:22 29:9,20 30:3 32:18 33:25 49:13 64:13 65:2,16 75:5 76:10 93:25 143:19 145:16 147:5 148:1 157:17 167:7 178:7 187:14
administratively 14:10 30:13
administrator 18:7 194:15
administrators 15:8 18:3,16 194:22
admitted 121:22 122:1 124:18
adult 158:4
advance 7:13
adverse 97:22 98:5,10 171:19
adversely 97:6
advertise 18:9
advice 23:20
Advocacy 3:19 107:3
affiliated 78:19
afforded 148:6
age 92:10
agencies 22:18
agency 43:3 91:6
aggregate 147:23
aggregated 147:10,19
agree 17:25 38:8,13 47:18 50:7 56:20 83:5 84:9,12,15 86:11 87:11,14 88:14,15 89:3,8,12,13,17 90:12 92:2,5,25 97:10 101:11,16 102:13,20 104:6 105:3,4,10 112:3,13 116:5 117:18 118:10 120:13 121:1 123:8 124:2,9,12,15,22 125:8,9,13,21 126:21 128:17 134:25 135:11,14 138:25 142:14 145:10,11,13 146:14,16 148:11

149:16,23 156:5,7 157:2 158:16,21 164:11 167:9 168:21,23 172:12 176:24 177:7 184:4 187:9,13 190:21 195:5,7,11,15 196:20 197:21 agreed 65:18 agreement 43:23 73:22 ahead 7:15,25 63:20 85:9 101:25 Alabama 3:15,16 57:24 70:3, 6,11,23 71:7,14 aliens 119:24 alleged 14:17 16:5 allowed 45:16 altering 195:1 AMA 93:18 Amended 7:19 150:24 American 14:21 38:21,22 51:22 93:13,17,21, 22 94:14,22 96:5 Americans 64:24 analyses 163:25 analysis 81:9,10,11 155:12, 14,16,18 160:5 164:24 185:21 analyzed 144:13 147:12 155:19 156:6 anger 88:20 163:3 annual 28:23 29:21 anonymizing 198:9 anonymous 198:1 answers 6:14 ants 176:9 anxiety 88:22 159:19,20,24 160:13,14 170:2 175:19 193:6 anxious 175:18,24 anymore 138:7 anytime 115:14 APA 28:24 29:12 51:22 apologize 134:1 appeal 68:18 69:23 Appeals 68:11,22 69:7 appearance 176:8 Appearances 3:2

appeared 14:15 16:6
appears 67:20 68:14 82:9
application 34:17 36:2
applications 35:14
applied 34:13
apply 34:23 35:3,8 192:19
appointed 37:20 39:6,8,10 96:20
appointment 38:1
approach 11:20 12:3,4 17:9,21 115:12 143:3 160:10
approaches 116:17 118:3
appropriately 160:11
appropriateness 61:7
approval 27:23
approximately 5:18 8:4 46:2 73:8 79:21 164:19 199:22
April 77:14,15,16
archival 29:14,24
archive 29:1
area 113:3 121:20
areas 112:24 113:17
argument 144:3 145:12
Arizona 78:16,17,19
arm 34:25
article 3:8,22 14:7 15:3,19 16:3 18:3 63:6 94:12 128:6 131:20 137:21 139:7,14 141:16 142:18 143:23 145:1 146:7 149:10 158:1 161:1 167:2 186:15 188:6 193:23
articles 14:11 67:24 158:12
articulated 12:6
Ashker 3:17 72:14 74:12 78:23
ASMI 146:13
ASNMI 146:14
aspect 42:18,24 97:16 177:23 179:24 187:6
assault 72:6
assess 34:21 36:20 47:10 55:13 83:23 84:2 112:17 132:8,11 173:15,16
assessed 167:15

assesses 60:21
assessing 42:5 55:18 57:12 72:19 84:13
assessment 27:10,13 55:17,20 57:16 84:4 100:19 101:18 103:12 175:9 176:2
assessments 11:24 101:22 106:23
assigned 10:12
assignment 58:25 80:24 81:4
assignments 101:22
assist 52:6
assistance 38:23
assistant 140:4,8,10,14,15,16, 19 141:10,11,17
assisting 39:21
association 14:21 29:22 38:21, 22 51:23 58:17 61:22 65:24 66:14 67:5,19 68:12 93:13, 17,21,22 94:15,23 96:5 199:13
assume 115:7 131:19 170:20 183:14 198:20
Atlantic 2:4
Attachment 8:16 9:1 58:4 65:24 70:1 72:3
attained 107:23
attempting 50:8 135:9
attended 31:5,6
attention 36:23 97:2 107:12 117:3 168:24 193:16 199:16
attorney 2:3,10 4:18 5:7
attorneys 7:3 77:22 79:7
attributable 177:8
attributed 198:6
attrition 165:11,12,13
author 14:7,15 17:8,9 27:21 116:10 126:6 191:21 193:2
authored 40:24 108:3 109:15
authorization 28:19
authors 25:10,14,15 40:18 141:20 142:7 144:9 192:19
av 146:12
availability 106:7 108:7 109:19
Avenue 2:4

average 42:19 49:3,11,14,17, 20 51:12 53:10 56:10 146:12 153:20 159:23 169:21 170:9,13,15,18,22, 24 171:1,2 172:16, 17 177:16 183:18 185:18 189:12
averages 42:22 189:12,19
avoid 6:19 105:16 135:4
awaiting 57:1 143:16
award 60:10
aware 31:18 46:18,22 49:21 63:14,16 68:21,25 69:6 71:20, 23 73:18,20,23 74:1 84:20 93:6 95:25 96:6,9 103:24 104:2, 22 106:11,18 108:2 109:14 121:21 131:17,18,19,20 133:1 142:1 143:8 148:19 149:3,5,7,12 150:6 196:5
Axis 108:22,23
B
back 10:4 32:24 38:12 40:13 46:10 50:12 53:20 64:6,17,21 65:18 67:12,23 69:3 80:10 94:2 103:8 122:23 123:10 125:3 133:5 139:22 146:22 148:23 150:14 162:18 163:25 166:1 177:14 181:10 184:19 188:3 197:6 199:7
background 8:22
backup 50:23
backwards 133:24 134:1
bad 14:17 16:5 88:3,13
bar 178:1,14 180:16,21, 24 181:15,24 182:3 184:12 185:6
barred 86:12
bars 178:9
Bartholomew 133:22
based 21:15 60:4 103:1,2 104:24,25 111:13,16 119:21 137:4 159:8, 9,12 167:19 175:25 176:2,23 187:19 196:23
basic 73:21 97:21 98:4,9 124:5,8,9 143:3 145:11
basically 33:4 86:25 91:8 97:13 124:5

basics 158:6
basing 129:25
basis 97:12 105:24 118:7, 11 154:6 171:4
Batastini 21:25 22:4,7,9,20 23:6 30:7,10,23
bates 3:10,13 60:20,25 62:17 63:21 67:21 107:11 117:3 155:3 181:6
battle 62:20
Bay 40:6 57:23 72:16 198:14,17
bed 172:3,4,5
began 20:11 142:21 163:18
begin 42:24 45:19
beginning 37:19 61:6 176:6
begins 13:16
behalf 4:12 42:12 106:12, 20
behavior 91:24,25 126:12 195:2,8
behavioral 28:2 145:21 173:16
behaviors 21:1 174:4
beings 124:6
belabor 188:22
believes 109:9 127:18
belong 93:19
bench 107:6
beneficial 64:13 65:3,16
benefit 115:22 116:3
big 138:3,19 181:2
bill 33:22 79:17
billing 151:24 152:2
bit 12:3,8,12,22 20:24 35:11 51:3 57:10 122:21
blank 75:10
board 10:11,13,14,16 37:21 39:6,9 47:2,9, 11,13,25 48:15,19, 25 89:19 90:3 96:20
board's 47:16
bodies 127:5
body 11:23 39:3 100:15 123:2,9 154:22 155:14,19 189:1 190:3

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Bolanos 26:8
Bonta 178:14 179:18,21 181:20 186:6
book 17:5 20:2 23:15,20 24:23
booking 144:18
books 19:22,24 23:16,23 25:19,22
Boston 2:5
bottom 16:16 108:13 133:20 146:7 181:7
Bower 26:10
Box 2:16
boxcar 86:9
Brain 43:15
Brazeau 3:10 58:15,16,20 59:17 60:17 62:25 63:18
Brazo 58:14
break 40:8,12 53:15,19,23 67:11 103:3,7 123:1 139:16,21 150:11,13 165:22,25 197:5
breaks 80:4 151:6
Brennan 82:2 195:23 196:5, 19
briefly 25:9
bring 79:23 80:1
Broad 59:23
broad-based 55:20
broader 12:22 38:24 65:11
broadly 12:17 25:7 38:5 59:7 155:13
broke 103:10
brought 7:8 150:18 174:22
Brown 75:13,15
bugs 176:9
bullet 61:2
bunch 6:1
busy 29:19
C
C-O-N-R-E-Y 62:7
Cage 32:1
California 40:4 72:15 73:13,24 75:10 78:23

call 7:5 12:20 45:4 64:24 198:2 199:12
called 10:2 39:9 45:15 62:23 71:17,21 72:9 190:25 192:5
calls 22:12,21 23:9 102:11,24 111:9 119:19 121:13,14 124:20 149:21 187:17
camp 52:19,22,23
Canada 27:11,14,20 57:25 58:1,13,18 148:17, 20
Canadian 29:21 58:17 61:16, 21 62:2 64:23 65:23 66:13,23 67:18 68:12,24 69:10,20 148:20 156:18,21 199:13
Canadians 199:12
candid 108:1
capriciously 187:3
captured 165:3
card 137:6
care 10:6 20:16 31:2,15 33:13,14 37:22,24 38:4 39:15,20 50:1, 11 54:23 55:7,11 62:22 73:15 96:17 97:21 104:16 108:7 143:6
careers 23:17,21
carry 173:5
case 3:11,12,13,14,17 4:8 5:13 8:14 10:20 14:12 28:13,17 57:20 58:20,25 59:12,17,22 60:11 61:13,22 62:5,9,14, 25 63:7,18 64:15 65:24,25 66:6,13,24 67:5,19 68:17 69:2, 14,19,21 70:3,7,12 71:9,14,24 72:5,14, 16,18,23,25 73:5,12, 18 74:12 75:10,22 76:3,5,7,16 77:1,10, 17 78:4,23,25 79:4, 7,11,16,20 80:12,24 81:14 82:2,6 83:22 85:16,19,21 91:4 92:16 104:23 106:19,20 107:3 108:4 109:15,16 111:12,15 115:15,20 116:2,4 120:25 132:1 148:19,21,23 152:17 153:3,11 159:10 175:8 176:23 178:2 180:16,17 181:11,16 182:9 183:10,15 191:9 195:24 199:14 200:7
caseload 54:8

cases 42:2,9,13,20,22 56:6 58:2,5,13,18 61:21 62:2 72:8 75:5,9 76:9,19 77:6 78:21 92:7 98:24 101:12 148:17 170:21 188:18 198:5
CAT 115:1,2
catalog 7:12
categories 134:14
category 190:10
causing 91:21
caveat 177:5
CCLA 3:11,12,13,14 148:20,22,23 155:1 180:16 181:11 199:13 200:7
cell 103:18,22 105:17 108:25 109:1 148:12,15
cells 21:12 108:22
center 2:4,11 43:9,11
centered 34:19 66:3
certainty 187:15 188:2
Certificate 3:5
Certification 74:15
certified 74:18
Chadick 3:25 14:7 30:16 126:2,3 131:14,19 154:16 191:21 192:10 193:9,13,23
chance 24:14 60:8
Chandrow 40:21
change 58:25 81:4 91:23,24 103:3 108:6 110:6 122:21 139:17 187:25
changed 20:24 50:3
changing 20:9,10,23,25 110:3 176:8
chapter 24:23 99:14
chapters 24:16,19,21 25:19, 22
characteristics 85:23 86:2,18
characterize 64:14
charge 79:10
charged 79:15,19
chart 181:15 182:21
cheap 152:10
check 24:14 25:8 64:21

75:17 77:13 82:16 choose
6:4 128:21 choosing
145:20 chow
176:16 Christianity
175:22 Christopher
58:14 chronological
14:3 circulation
15:7 circumstances
107:20 cite
16:25 116:21 125:23 cited
14:12 100:15 cites
191:20 citing
117:1 Civil
7:20 58:17 61:22 65:23 66:14,23 67:18 68:12 69:20 148:20 150:25 199:13 clarification 25:1 41:16 48:22 90:1 153:22 class 58:23 62:11 72:19 73:6 74:15,18 106:14 199:6 classify 173:24 clear 17:8 20:19 112:11 146:21 195:11 199:22 client 21:7 clients 37:11 clinical 11:6,17,21 12:8,19 102:5 115:8,25 116:4 117:14,20 119:3 127:16 136:18 154:11,13 173:15,18 177:24 188:23 189:7 190:18 191:10,12 192:2 Clinically 172:22 clinician 21:8 clinicians 21:19 32:8 close 129:1 Cloyes 166:8,17 167:13 cluster 173:25 174:8 COA 3:14 coherent 123:24 Cold 82:11 collapse 175:23 Collateral 173:18

colleague 20:22 21:24 22:4
colleagues 45:1 78:14 163:20
collect 99:18
collecting 138:18
collection 138:18
College 13:4
Colorado 3:21 15:23 125:23 126:14 127:25 128:8,12,18 129:15, 18 131:10,18 136:3, 6,7,10,25 137:3,16 138:5,11,14 139:4 140:1,7 141:1,19 142:11,19 147:10,25 148:1,24 149:2,12, 17 150:3 154:14 159:16 160:6,8,22 161:3,9,13,19,24 196:7,10,13,14,15, 16,20
column 117:24
Combine 43:17
commensurate 61:9
Commission 3:19 37:22,24 38:3 96:16 107:4
commissioned 140:23 141:2
committed 101:12
committing 173:9
common 117:13,18 195:16
commonly 195:3
communicate 103:22
communication 86:7 107:22,25
communications 3:23 80:1 152:17,20
community 36:25 37:9,12 43:12 91:13 133:11
company 43:16
comparable 57:5 169:22 177:17 184:8
compare 28:3 132:12 166:13 182:20 184:15,21 185:3,7 186:11
compared 28:3 144:10 185:9 193:5
comparing 133:9,13 179:14,17 180:11 183:7 185:12 186:4
comparison 14:9 30:12 177:19 183:18 184:3,11,25 186:5
compendium 154:25 181:2
compensated 33:18
compensation 32:12

competency 41:23,25 52:6,12 58:9 77:6 83:11
complaint 7:20 10:9 150:25
complaints 101:9,14 105:17 170:3
complete 51:21 80:17 127:1
completed 27:19 29:15 35:16 51:15 102:23 192:4
complications 92:21
component 15:17
components 15:18 73:21
comprehensive 20:7 101:21 102:4, 22
compulsive 176:6,9,12
computational 182:4,5 183:12,25
compute 159:11
computed 159:8
conceptualize 16:20
concern 108:8 131:25 200:3
concerned 131:22 142:7
concerns 36:8,9 110:21 127:5 140:4,18 149:8 199:24,25
conclude 100:5
concluded 3:4 118:2 119:10 200:23
conclusion 83:7 111:17,23 121:14 124:21 190:3,5 196:3
conclusions 63:14 77:1 81:7 101:6 125:16 127:11 142:10 153:24 171:5 195:14
concrete 87:1
condition 73:23 107:24
conditions 54:13 72:19 84:9,12 145:15 148:13 168:15
conduct 9:16,20 84:4
conducted 27:13 104:20 140:8 153:4
conducting 114:4 132:7 135:25 141:12
conference 26:25 29:8
conferences 23:2,4
confident 99:25
confidential 3:24 175:2,3
confidentiality 108:8 110:21 198:10

McCorkle Litigation Services, Inc.

3

Chicago, Illinois· (312) 263-0052

Dr. Robert Morgan 05/21/2019

confined 148:14
confinement 3:9,18,22 14:16 16:4 23:24 26:1 42:6 61:18 72:19 73:1 82:19 87:13 90:16 92:6 93:8 94:18 95:8 96:15 97:7,20 98:4,9 99:2 100:6,11,21 105:13 120:10 122:19 123:3,7 127:13 135:24 139:2,9 148:13 150:7 156:25 164:13 168:18,22 169:16,17 170:2 175:16
connection 66:13 81:14
Conrey 62:7
consecutive 68:24 69:9
consensus 87:15,19 88:1,11 91:12
consequences 120:10
considerable 146:12
consideration 92:10,12 110:11 190:17
considered 55:3 80:15,18 92:23 112:7 118:6 175:20 178:23
consistent 91:10,12 120:8
consisting 117:14
constellation 120:7
Constitution 68:24 69:10
construct 174:9
consult 76:15 77:1
consultant 20:17 39:14 40:4 43:14,15
consultation 50:1 106:4
consultations 22:17 110:3
consulted 76:19
consulting 54:22 55:7
contact 22:20 102:9 108:10 124:6,7
contacted 18:22 22:15 77:10, 17
contacts 102:9
contained 68:5 141:22 157:14
contaminated 144:11,12,15,18,20
contaminates 145:14
contaminating 135:4 144:2
contamination 135:7,11 138:17 142:12,23 144:9 145:2,18 146:17,18 147:11,19 149:7

165:20 content
20:24 21:17 contents
19:9 context
65:11,19,22 92:7 95:7 115:13 116:6 120:18 121:10,21 123:20,22 142:3 contexts 92:8 continue 149:19 continued 90:8 145:9 continuing 109:7 141:3 contract 31:18 36:23,25 37:5 39:18 151:3,14 contracting 33:14 50:10 contractor 31:3 contracts 31:15 contradict 69:1,13 contrary 76:20 101:17 127:7 contribute 46:25 contributed 11:22 25:21 contributing 25:2 contribution 25:5,7 131:5 contributions 100:1 control 36:20 89:25 97:5 132:12,13,19 135:8, 24 142:12,25 145:7 147:1 167:11,19,22 controlled 132:4,5,22,25 133:2 134:6,7,15,23 135:1, 3,15 167:20 conversation 109:8 conversations 77:21,24 102:18 cool 43:18,19 coping 12:15 20:25 copy 60:7,16 150:23 151:15,22,24 155:6 Corizon 31:2,15,18 32:14 Corporation 58:16 61:21 68:12 69:20 148:20 correct 5:16,21 6:8 9:2 10:25 11:7,8,14 13:4,9,12,23 16:14 19:17,22 20:15 21:13 24:21 26:14, 24 28:15 30:18 31:4, 14 32:23 33:13,14 34:9 36:15 37:9,17 39:15,20 42:2,3,7,14 43:10 44:8 45:14 50:1,10 51:8 54:22, 23 55:7,11 58:12,19 61:24 63:2 67:2,3 68:6 69:21 70:16

72:11,17 74:22 79:12 82:7,13,14,24 83:13 85:21,22 89:19,20 91:14 95:22 101:23 102:5, 10 106:10 112:9,23 113:2,15,16,21 115:2 117:10 120:2, 25 122:20 123:13,18 125:16 126:17 128:10 129:23 130:14 131:11,15,24 135:10,20 136:11, 19,20 137:2 139:5 140:4,8 146:20,24 147:4,22,24 148:17 155:13,21 156:9,10, 13,22 157:8 159:4,5 161:6,10,21 162:1, 10 164:17,21 165:5, 19 166:16 167:22 168:12,19,20 169:10,24,25 171:3, 7 177:21 178:2,11, 16,20 179:4,12,16 180:7,25 181:1,25 182:1,12 184:13 191:25 192:3,9 193:25 194:14,16, 17,20 195:18 198:11,15,23 correction 38:19 correctional 14:24 15:8 18:3,6, 16,18 19:2 27:11,20 37:22,24 38:3,5 42:19 46:7,9 51:16 52:10 55:23,25 81:21 89:5 90:2 91:11 96:5,16 109:3 187:2 194:19 corrections 3:8 9:22 14:15,20,21 16:6 18:2 19:3 20:14,17 22:3 31:10 32:4 37:1 38:10,15 50:8 73:13 79:1 91:24 106:12,22 107:5 149:13,17 150:4 157:19 186:14 188:5 194:10,12 195:21 correctly 11:3 17:18 21:10 76:1,25 97:8,25 116:1 117:16 118:8 counsel 3:23 4:9 76:21 77:3 78:3 80:2,22 151:17 152:17,21 counseling 11:6,13,17,21 12:10, 11 count 13:25 counted 13:24 19:24 157:20 counting 76:14 countries 123:12 county 36:25 37:3 56:19 couple 5:23 23:4 24:15 26:4 27:25 35:14,17 57:1, 4,21 58:13 144:24 164:7 196:25 court 3:14 4:14,20,21 6:4 38:13 60:10,21

63:12,17 64:14 65:6, 19 68:11,22,23 69:6, 7,8,13,19 71:13 76:13 78:10 88:10 98:7 107:6 121:9,22 122:1 124:13 125:4 158:20 184:20 court's 63:15 courts 52:13 coverage 50:23 covered 57:18 158:5 Cowboys 43:14,17 Craig 41:1,7 138:20 crim 42:10 criminal 24:5,9 33:2 41:20, 23,25 42:1,2,5,10, 12,16 52:12 77:7 83:11 126:12 crises 107:17 crisis 11:25 53:13 criteria 157:22,24 167:19 critic 139:4 critical 131:4 criticism 122:15 126:20 129:17 130:23 138:12 140:9,12,13, 22 141:1,7,8 142:24 144:4 146:21 161:11 162:15 164:5 165:16 166:4 194:7,21,24 196:2 197:17 criticisms 101:10 138:14 153:7 161:3,8 criticize 126:20 criticized 110:13 112:5 138:16 161:5 197:14 critique 3:21 83:21 100:12 103:11 112:6,16 125:22 128:11,17 140:24 141:5 142:11 146:17 161:15 critiqued 63:5 critiques 63:9 100:18 139:25 149:3,10 150:7 Crosby 36:25 37:2 crosscontamination 147:21 149:9 cross-examination 3:12 64:22 66:22 88:6 199:12 cross-examined 63:4 CSC 27:21,22 cue 119:14 120:4 culture 186:23 187:1,9

curious 183:9
current 90:8 173:5
curriculum 133:5
cursory 109:12
custody 107:21 190:25
cut 157:9
CV 8:17,20,22 9:3,7 11:1 13:1,13 14:6 19:11,19,21 23:15 25:18 30:2,19,20 34:7 36:24 37:19 41:18 43:5 58:4 61:25 70:2 72:3
D
D-V-O-S-K-I-N 78:11
Dallas 43:14,16
damaged 145:7
damages 60:11,22
Dan 7:20 151:1
dangerous 91:21
dark 178:14
data 29:1,14,24 80:15,17 124:24 125:5,10,19 126:14,16 127:19 130:16 131:10 138:18 142:16 144:13 147:10,12, 18,23,25 159:8,12 165:10 177:5 178:3 180:1 182:6
date 14:4,11
dates 77:13
David 2:8 4:12 77:18,19 122:6
david.dickmeyer@ atg.in.gov
2:13 day
24:13 165:18 172:4, 5 days 24:15 33:4,21 48:16, 17,19 49:16 51:14 53:7 68:24 69:9 95:20 108:25 137:12 144:24 146:13,14 149:14 164:16,20 165:2 168:18 169:12,16 dead 173:2 deal 24:25 183:11 Death 41:15 decades 123:10 decided 31:11 36:2 63:17 175:21

decision 3:14 35:20 36:13 48:4 60:16 68:11,21 69:7
decision-making 47:14 89:21,24
declaration 3:17 74:11
decompensated 87:20
decompensation 47:22,24 59:25 73:11 153:17,18,21
dedicated 24:19
default 10:3,4,13
defendant 75:17 195:24
defendant's 83:11 88:6
defendants 2:7 4:13,19 5:12 41:24 42:12,17 62:13 68:19 77:7 79:4,7 82:1 151:18
defense 3:23 63:24 78:3 152:17,21
define 187:1
degree 11:5,6,12 13:3 44:3, 16 51:20 84:15,20 87:21
degrees 11:3
demographics 29:5
demonstrates 88:16
denied 34:14
denigrate 187:3
department 9:22,23,24 20:17 22:3 29:2 31:9 32:4 34:25 37:1 40:5 46:1 50:8 73:13 79:1 95:23 101:9 106:12, 21 107:5 149:12,17 150:4 152:6,12 195:21
depending 171:22
depends 171:23
depo 3:7 200:15
deposed 5:15 61:17
deposition 3:4,16 4:4 5:19,20, 24 7:2,6,13,22 47:6 64:24 65:3,7 66:22 67:18 68:1 71:6 76:2 80:7 151:3 155:2 199:11 200:6,23
depositions 76:14 198:12
depression 89:1 159:18,23 160:12,13 170:2 173:10,13,22 174:1, 9 175:19 193:7
depriving 88:2,12 124:5,7
Deputy 2:10

McCorkle Litigation Services, Inc.

4

Chicago, Illinois· (312) 263-0052

Dr. Robert Morgan 05/21/2019

derived 124:17 179:13
describe 8:22 17:5 20:5 27:8 32:4 34:17 35:10 37:23 61:12 65:25 85:20 86:24 91:19 100:20,22 123:2 124:3 127:10 129:3 130:10 138:14 142:5 143:3 144:23 157:13 171:15 176:14 182:5
describes 63:23 109:7 175:17 176:5 197:21
describing 10:20 16:12 29:5 64:22 100:10 125:15 127:8 129:3 130:15, 20 145:2 166:21 171:10 184:7 191:11
description 3:7 12:23 44:7 120:4 174:15 198:5
descriptions 119:7,13 141:19
descriptive 29:4
descriptively 29:25
design 21:16 55:11 132:8, 25 134:23
designated 46:16 50:22 56:3
designation 175:3
designations 49:8
designed 116:19 118:5 132:14
desire 76:17
desired 77:2
detail 7:11 35:11 60:8
detailed 24:22 74:23
detained 17:2 30:22 32:2
detect 116:19
detecting 116:18 117:5,9,19 118:3
detectoring 117:9
detention 144:21
deteriorating 54:12,15
deterioration 46:25
determine 132:21 155:19 156:1 159:6 173:24
determining 159:4
develop 18:4 21:5 157:25
developed 39:6 135:23 194:3 195:24 196:5
developing 20:11
development 88:25
devote 42:15

diagnose 12:9,16,21
diagnoses 108:22,23
diagnosis 174:11 197:18,19
Dickmeyer 2:8 4:12,16 22:12,21 23:9 48:1,7 65:8 76:18 77:19 83:3,8 84:17 87:4,22 88:4 89:11 93:4 95:2 99:4 101:25 102:11,24 104:12 105:2,8 109:24 111:9,20 112:1 118:16,25 119:19,25 120:11,16 121:13 122:5,9 124:1,20 125:1 126:22 127:21 129:10 130:12 141:14 149:21 155:3,7 162:24 175:4 177:1 183:22 187:17 189:25 195:19 200:12,16,20
die 173:3,22
difference 11:17 12:5 113:17 115:18 134:18 144:10 148:12 182:23
differences 11:19
differently 153:16 170:10
difficult 103:21 135:14 165:7
difficulties 109:5 135:25
direct 140:11 168:24
Directions 37:21
directly 107:14 162:17 185:3
director 43:6,7 121:17,19 150:3
directors 39:7,9 96:20
disability 115:20,22
disagree 38:16 39:2 64:19 69:12 97:10,11 128:24 129:14
disagreed 64:12 65:21
disagreeing 65:1,5
disagreement 97:12,16
disciplinary 49:13,14 143:14,16, 17 144:21 145:22 146:2 157:18
disciplined 9:14
discuss 26:4,22 33:8 116:9 187:25
discussed 25:9 26:9,11 33:9 83:18 138:22 157:17 161:4 168:13 196:12
discussing 16:4 20:3 58:9 68:13 69:20,24 72:9 103:11 193:14

discussion 23:14 24:1 26:7 56:13 116:7
discussions 21:25 22:16
disorder 12:9 193:6
distill 134:19
distinction 44:23
distinguish 172:20
distress 109:23 111:6,19 119:13 187:16 200:1,2
distribute 18:23
district 4:8 107:6
doctor 11:9 29:19 114:25
doctoral 9:24 11:6,12 45:4 51:20 53:25
doctorate 44:17
document 7:18 93:24 94:3,6,8 137:25 147:15 157:12,14,16
documenting 123:3
documents 7:5 81:9,10,11 150:18 151:9,11,16, 23 157:6,11
dollars 60:10,22
door 86:15 103:18,22 175:23
doors 86:7,9,12
Dorado 45:19,20,21 46:2,5, 10,12 47:3 49:4 50:4,7
Dorado's 49:21
double 82:15
doublecheck 158:10,13 163:22 168:8
doublechecked 162:3
doubt 162:4 169:13,14
download 152:7
draw 36:23 107:12 117:3 127:11 193:16 199:16
Dropbox 8:2
Drs 63:5,9 72:24
DSM 197:18
due 95:18 96:3 159:13 189:5
duly 5:2
Dunn 70:2,3 71:23,24

duplicative 185:6
Dvoskin 78:7,13,15,21
dysnea 193:7
E
e.g. 90:9
earlier 39:21 47:5 70:4 99:13 126:4 130:22 137:9 138:22 160:25 162:9 176:18 178:10 184:7 196:12
early 191:17
eat 176:16
Ecclestone 168:25
edited 25:22
editions 23:17
editor 24:17 99:17,21
education 11:2 38:23 39:4
educational 37:22 39:11 96:21
effect 36:21 57:12 72:10 82:19 87:2 97:22 98:5,10 105:13 132:15,21 155:20 156:1,4 158:1 159:4, 9,10,20,23,24 160:4, 7,10 161:18,23 164:2,3,12 168:14 171:11 178:8,9,18, 21 179:2,6,8,25 180:3,11,12 181:19, 20 182:11,13,20,22 184:16,21,22 185:3, 4,8,13,18,20,25 186:11,12 189:21 193:20
effected 183:19
effectively 132:25
effects 3:22 19:14 27:4 32:7 34:21 42:6 58:23 59:3,7,24 61:17 62:10,24 66:3 70:9 75:5,21 76:9 81:1 82:23 84:13 85:12 88:17,20,24 98:17, 18 100:6,20,25 134:19 139:1,8 140:19 145:8 153:12,14 154:8 155:23 158:4 159:7 168:17 169:16,22 170:9,14,17 171:9 174:16 175:11 176:25 177:17 178:24 179:11,22 188:20,21 198:21,24 199:4
El 45:19,20,21 46:2,5, 10,12 47:3 49:4,21 50:4,7
elaborate 19:6 98:16

elevated 88:21
email 2:6,13,17 77:12
emailing 18:22
emails 7:3
embarrassing 25:16
emotion 179:5,11
emphasis 50:5
empirical 155:14 158:25
employed 33:5
employee 27:22
employees 39:24
employers 39:24
employment 118:4
encase 72:25
encyclopedia 24:5,9,16 25:3,11 40:19 41:9 99:15,18 100:2
end 61:5 108:2 118:7 133:15 144:14 145:9 164:15,20 165:2 169:23 187:6 188:22 199:1 200:15
endeavor 184:15,21
ended 163:19
endorsed 174:10
energy 172:5,7 174:3
engagement 174:4
engaging 174:5
English 158:2
enhance 188:15
enlighten 173:18
enraged 175:22
ensure 73:14 124:16 137:13
entered 174:23 176:7
entire 128:6 175:18
entirety 12:13 127:2
entitled 14:7 28:22 32:1 62:19 139:8
entries 24:22,24,25 25:13, 17 40:18,24 41:8
entry 25:8 27:6 28:6 41:13,14 107:6,11, 14 108:14
environment 86:5 91:23 176:13
environmental 97:5

ER 114:25
error 160:20 164:1,4 182:2,4,5 183:12,15, 25
errors 6:9
Escaping 32:1
essentially 11:22 12:2 15:14 63:13 137:7 144:17 161:12 167:4 199:25
establish 173:13
establishing 177:19 180:2
estimate 25:15 49:20 50:15 160:4
Estimates 178:8
et al 4:7 71:23,24 126:2 133:22 134:5 154:17
evaluate 59:16 72:9 83:6,14, 16,19 85:14 115:5 121:12 122:3 192:22 198:16
evaluated 55:2 82:18 83:12 102:15 198:14
evaluating 42:16 57:1 84:20 105:12
evaluation 55:5 57:11 102:20, 22 108:24 109:3 110:10 114:14 153:10 176:22
evaluations 52:6,12 54:25 56:16, 25 57:14 58:9 77:9 109:12,20,23 112:8 121:10 122:2 192:2
evidence 47:23 62:22,23 65:13 101:13 102:1 103:14 111:18 115:8 124:18 125:15 174:24
EX.VOL. 3:7
exact 182:6 199:23
exaggerated 119:7,12
exaggerating 112:14
examination 3:4 5:3 114:5 117:15 136:10
examiner 127:15
examples 170:5
exams 41:23,25
Exchanged 7:3
exclude 127:6 147:20,24
exclusively 53:4
excuse 18:19 32:16
execution 134:23

McCorkle Litigation Services, Inc.

5

Chicago, Illinois· (312) 263-0052

Dr. Robert Morgan 05/21/2019

exhibit 3:8,10,11,12,13,14, 15,16,17,18,19,20, 21,22,23,24,25 8:11 15:25 16:2 60:13,15, 24 62:16 66:7,9,19, 21 67:14,16 68:6,8, 10 69:16,18 70:19, 21 71:3,5 74:8,10 80:11 96:12,14 106:25 107:2 116:23,25 128:14,16 138:3 139:11,13 152:25 153:1 154:25 174:24,25 175:4,14 181:3,12 193:10,11, 13 199:11
exhibits 3:6,13 67:17 155:1
expect 169:15 170:19
experience 22:16 37:18 41:17 55:19 56:25 57:19 60:2 81:12 97:18 98:20 101:4 119:3 153:18,20 154:12,13 164:13,22 168:15 177:25 185:21 188:20,21,24 189:8 190:6,7,13,18 191:11,12
experienced 98:19 175:10
experiences 57:22 58:1 165:3 172:18
experiencing 109:23
experiment 132:7
expert 3:11,15 7:17,20,21 8:11,13 15:25 16:2 42:9 58:22 59:4,5 60:13,15 62:3 63:23 66:7,9,10,12,19,21 67:14,16 68:8,10 69:1,14,16,18 70:19, 21,22 71:1,3,5 72:21 74:8,10,21 75:4 76:5,13,15 78:4 80:11,25 81:1,3 88:6 96:12,14 99:7 100:12 106:25 107:2 116:23,25 124:23 125:4,10,11,14 128:14,16 129:9 134:22 138:3 139:11,13 150:25 151:1,12 152:25 153:1,9 154:25 174:25 175:13 181:3,12 187:20 193:11 194:19 199:11
experts 62:20 72:21,22 124:13
experts' 59:5
explain 11:16 12:4 185:15
explains 176:10
explanation 111:17 184:6
expose 128:7
exposed 132:20 142:20

exposing 135:7
expressed 70:25 77:2 81:7 99:2 127:24 130:3 141:19 196:2 199:25 200:2
extended 23:14
extensively 63:4
extent 68:20
extra 121:3
extract 159:10
extreme 90:9,21 123:22
eye 176:8
eyebrows 176:7
F
Face 151:2
face-to-face 21:6 102:16,21
facilities 57:19,24,25 84:10 97:21 98:4,9 108:18, 20 167:4
facility 10:15 37:13 46:7,9 49:4 50:4,7 52:19 55:19,22,24,25 56:2, 4 85:13 103:24 104:4,9,13 167:15
fact 9:25 101:7 110:25 111:19 112:13 116:15 118:18,23 120:7,23 122:7 128:3,6 129:9 135:1, 24 141:12 146:1,22, 25 148:23 149:24 170:20 186:7 187:23 196:13 197:22
factfinder 127:1
factors 187:24
facts 80:15,17
failed 10:1 101:7
fair 48:2,3 83:24,25 112:19 122:14 129:17 138:12 140:13 141:7,8,13 144:4 154:24 180:14 192:14
fall 17:17
falls 171:5
false 98:13
famil 85:18
familiar 5:20 8:7,9 63:24 73:21 85:18 86:14, 18 99:6 116:12 128:11 138:20 139:7,24 140:24 142:25 146:1 149:24 150:2 161:15 166:11 169:2 195:20

familiarity 5:25
family 12:14
fatal 142:12
fatally 130:8
fault 109:5
favorable 68:19 77:3
FCI 51:16 52:18
federal 44:4,12 52:13 53:24 54:20 76:13
feedback 184:4
feel 99:25 175:23 190:15 198:5
feeling 172:10
feelings 172:21
Feels 137:12
feigning 115:22 117:5
Fellowship 43:7
felt 111:6 175:19
female 55:3
fewer 173:1
field 12:12 13:22 15:5 20:20 99:19
figure 152:11 178:7 186:16,17
figures 99:19
file 7:4,8,14,15 9:21 79:23 150:21
filed 4:7 9:22 106:11
Filler 2:3 3:4 4:10 5:4,7 8:12 16:1 22:19,25 23:11 38:12,17 40:8, 17 41:5,6 48:2,12 53:14,22 60:14 65:23 66:8,20 67:7, 15 68:9 69:17 70:20 71:4 74:9 76:24 83:5,10 84:19 87:6, 25 88:5,8,15 89:13 93:6 95:4 96:13 98:13 99:6 102:3,14 103:1,3,10 104:13 105:4,10 107:1 110:5 111:13,22 112:5 116:24 118:18 119:2,23 120:3,14, 17 121:16 122:7,14 124:3,23 125:10 126:24 127:23 128:15 129:13 130:15 139:12,16,24 141:18 149:24 150:9,16 152:24 153:2 155:5,9 159:3 162:22,25 165:22 166:3 175:1,5,6 177:2 184:6,19 185:5 187:19 190:2

193:12 195:20 196:24 197:8,13,14 200:9 find 109:11 126:18 130:18 147:14,15 174:6 189:20 193:3 finding 108:3 147:9 findings 27:17,24 73:9 100:20,23 109:13, 14,18 111:14,16 121:9 128:3,8 149:18 fine 147:17 151:20 finish 46:10 finished 13:7 finishing 80:21 Fisher 134:4,5 fit 20:23 43:24 92:13, 16 five-minute 40:8 53:14 fixed 183:14 flag 131:12 flagged 151:6,11 flawed 130:8 flaws 128:8 fliers 18:22 flip 63:20 floor 2:4,11 176:9,11 focus 20:25 folder 8:3,5 138:3 folks 15:11 25:22 37:8 57:4 144:11 163:18 185:1 186:7 follow 35:15 followup 48:21 foremost 150:6 forensic 41:20 42:5,11,16 43:6,8 52:5,11 54:24 55:4 56:16 57:8,11, 14 77:8 114:5 115:19 116:6,20 121:18,19,20 127:3 forensics 121:17 forget 182:6 forgive 55:21 form 22:12 48:1,7 76:18 83:3,8 84:17 87:4,22 89:11 93:4 95:2 99:4 101:25 104:12 105:2,8 109:24 111:9,20 112:2 118:16,25 120:11,16

121:14 122:5,9 124:1,21 125:1 126:22 127:21 130:12,17 141:14 142:20 143:15 177:1 189:25 195:19 format 21:8 formulating 85:4 106:19 128:20 forward 13:11 17:24 67:22 found 9:25 106:21 111:5 115:8 119:6 128:22 138:23 146:25 147:5 151:7 161:17 184:16,21 186:12 foundation 37:23 39:4,5,11 96:21 four-month 52:14 fourth 116:15 Francis 62:7 frequency 104:20 frequently 108:23 Friday 151:19 Friday's 151:20 front 80:7 105:6 144:14 fronts 108:25 full 137:19 full-time 51:22 function 12:14 107:15 124:7 171:24 functional 176:17 functioning 12:15 27:4 28:2,9 32:8 47:1,10,12 55:17 57:16 62:11 65:14 66:4 85:2,3 92:11 110:8 153:15 154:9 171:18 182:19 185:1,2 188:22 189:5 190:7,20 191:6,14 fund 35:22 36:2,13 funding 34:8,13,15,23 35:3 36:11 192:17,20 Fuqua 134:13 furthers 39:11
G
gain 27:23
game 118:22
Gary 195:23
gather 99:7,17
gave 6:8 29:11 30:23 32:3 66:23 67:18 162:13

200:6 gees
59:23 Gendreau
130:5 156:18 178:14 179:18,21 181:20 186:6 Gendreau's 156:16 general 2:10 14:9 21:8 30:12 36:7 43:24 52:10,21 54:15 66:5 86:14 87:7 91:22 93:1,3 106:5 113:5,6,20 117:4,8 121:21 125:9 143:5,18 146:23,25 147:7 166:14 167:12,20 169:23 171:18 177:18 178:8,18 179:15 182:13,25 184:17,22 185:2,4,8, 9,13,16 186:2,5,13, 16 188:3,12 191:2 193:5 General's 4:18 generally 5:21 20:14 36:19 59:23 87:12 88:3,13 109:12 115:11 116:5 121:1 125:7 143:2 145:1 178:23 186:6 Gill 58:10 give 5:23 6:13,24 7:12 45:8 49:11 58:22 59:23 62:21,23 63:13,17 67:4 75:11 85:10 133:19 134:10 159:6 174:19 176:1 giving 23:1 57:20 66:2 130:10 Glancy 63:24,25 64:4 Glancy's 64:8,12 65:1,15 glasses 162:19 global 153:13 goal 54:11 93:2 99:17 155:25 157:15 180:2 185:7 gold 136:4 Gonzales 58:11 good 5:5,6 23:22 43:24 74:2 150:9 156:6 159:17 172:10 184:3 188:12,14 Government 2:11 governor 72:15 75:12 GPMI 146:12 GPNMI 146:13 grab 162:18 Grabowski 26:8 grant 34:17 36:2,11

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137:24 138:1 grants
34:10 36:6 graph
178:1 180:16,21 184:2,12 185:6 Grassian 3:21 63:5,10 128:7, 17 Grassian's 64:7 grave 128:7 great 6:18 81:14 greater 65:19 159:13 green 119:24 Gross 133:21 group 12:1 15:10 21:15 36:14 39:11 50:2 132:12,13,19 135:8 142:13,25 143:1 145:7 147:1,3 164:20 167:11,22 groups 36:20 135:4 138:17 143:9,20,24 144:10 145:15 guard 91:5 92:22 guess 81:11 guided 21:8 guidelines 73:14 Guillory 2:9 4:17 guilty 52:7
H
half 33:9 46:2 75:24,25 102:17 147:5,6
hall 176:16
hand 4:21 117:24 132:9
handful 55:15
hands 17:14
handwriting 151:7
handwritten 151:16,17
Haney 3:22 41:1,7 63:5,10 72:24 138:20,25 139:25 142:18 144:13 145:12 161:17 162:2,13 166:16
Haney's 64:7 139:7,13 140:6 143:23 144:25 146:6,17 160:25 166:4
hang 175:20
happen 118:21 119:1 170:23
happened 77:4 129:22

happening 133:14
harass 187:3
harm 87:13 89:3 95:18 101:3 105:1 115:20, 21,23 122:19,22,24 124:8 170:25 171:6 186:23 187:1,24
harmed 171:1 191:8
harmful 91:9 94:25 98:18,24, 25 101:2 124:4
harms 60:2 89:23 96:4 98:20,22 99:1 100:11,16 123:3 127:12 170:1 180:11,12
he'll 113:8
head 35:6 74:5 85:17 101:1
heading 11:2 13:13
headquarters 39:16
health 10:12 15:20 17:2 18:8,15,19 19:2 20:1 27:4,12 28:2,4,9 30:21 31:2,6,7,15, 16,19,22 32:2,7 33:5,6,10,15 34:21 37:2,22,24 38:4,6,18 39:1,22 43:2,9,12 44:18,22,24 45:2,6 46:16,20 47:1,10,12, 15,22,23 48:6 50:21 52:10,21 53:13 54:3, 8,16,24 55:5,12 56:3,6,16 57:8,11, 13,14,16 59:25 61:8 62:11 65:14 66:3 70:9 72:10 73:11 74:24 76:10 77:8 81:23 83:6,7 85:2 87:3,11 88:3,13,18 92:11 93:9,14 94:25 95:5,7,9 96:16 97:6, 23 100:24 101:19,22 102:9,10,23 103:12, 17 104:3,7,10,16,22 105:12,17 106:1,7, 23 107:15,19 108:7 109:20,22 110:8,9, 16,22 111:7,18,24 118:1 120:9 121:22 133:11 153:15,17 154:8 156:2 158:3,4 169:21,22 170:9,14, 17 171:9 172:13 177:16,17 180:22 181:25 182:10,12, 19,21,24,25 183:17, 19 184:25 185:2,14 191:13 192:24 194:13 198:21,24
healthcare 38:5,9,14 39:1 55:6 109:19
heard 10:6 24:13 141:5
hearing 119:17 143:16
hearings 143:18
heart 175:17

heavily 63:4 161:9
heavy 138:12
Heigel 180:24 181:21,24 182:10
held 56:8 68:23 69:8 86:19 97:14 104:9 106:8,9,13 143:15
helpful 26:17 48:10 85:4 128:9 175:16
hesitant 92:17
high 99:23 137:14
higher 87:8,9,16 173:6 189:14 193:4
highlight 127:5
hired 45:1
historically 12:20
history 74:24 101:8 172:25
hold 134:22 149:19 163:10 194:18
Holder 72:4
holistic 12:12,22
honest 120:20
honestly 119:4,10
hope 33:21
hopelessness 88:21 173:11
hoping 18:2 100:22
Horn 26:10
hospital 52:5
hour 33:9 79:10
hours 33:8 42:15,20,23 43:4 79:19 102:17 172:5
housed 85:24 97:7 166:23
housing 17:3 18:13 20:2 30:22 32:3 55:4 95:25 146:23 167:8 169:20 170:13 177:15 193:20
Huening 134:5
human 88:2,12 124:6
humane 97:21
Hunter 26:10
hurt 119:18
I
idea 86:14 91:20,24 132:22 187:13

ideal 135:6
ideation 174:2
identified 86:3 101:17 121:4 143:1,8,20 175:10 179:2
identify 4:15 43:24 48:9 54:11,14 78:3 138:4
identifying 22:9 68:2 151:10
IDF'D 3:7
IDOC 3:20 107:16
II 108:22
ill 59:8 61:18 105:5 106:13,21
illness 20:9,13 33:2 50:14 92:20 120:4 133:7, 10,11,14
immediately 142:21
impact 12:15 14:8 28:1,9 30:11 97:6
impacted 171:20
impacts 89:22 141:9
impairment 171:24 176:18
implement 17:20
implemented 50:2
importance 116:9 132:19
important 6:12 47:20 84:12,19 85:13 105:12 124:16 129:2 131:7 134:25 135:3
impossible 145:6
imprisonment 25:7 99:14 107:24
improve 55:11 60:4 189:5 191:5 195:8
improved 65:13 182:18 188:21 190:7,20 191:13
inability 107:20
inappropriate 138:17
incarcerated 185:24,25
incarceration 28:1 102:23 169:23 177:18 178:8,18,19 182:13 184:17,23 185:14 186:13
incentive 120:24
incentive-based 196:13,21
incentives 195:8
inclined 18:7
include 15:10 16:13 26:7 38:6 41:25 42:5,8 57:15 74:23 88:20,

24 130:17 137:1 157:1 162:7 170:2 183:9 189:2,8 192:2 included 9:7 47:16 49:13 90:15 130:24 149:2 153:6 156:9 157:15 162:11 163:21 164:23 166:5,23 167:18 168:3,4 179:19 180:16 183:4 194:4 includes 127:1,17 164:8 including 17:1,25 18:24 89:1 99:13,22 108:20 126:21 193:6 inclusion 182:3 incomplete 122:16 132:1 inconsistent 110:16 120:13 incorrect 162:14 increase 187:12 increased 92:19,21 increases 187:22 increasingly 116:16,17 118:1 independent 78:18 indeterminate 187:23 INDEX 3:1 Indiana 2:10,11,12 3:19 4:8 31:19,20 79:1 81:14, 16,18,20,23 82:10 106:12,21 107:3,4 151:2,12 195:21 196:6,20 Indianapolis 2:12 indicating 35:21 111:3 115:21 119:17 150:20 152:2 181:4,14 indication 114:18,19,23 115:1 120:20 indicator 173:23 indicators 172:23,25 173:1 individual 12:1,18 138:18 171:17 188:19 individual's 12:13 individuals 20:8,13 22:18 38:5 39:1 97:22 132:8 133:6,10,11 induce 187:4 ineffectual 107:18 inevitable 190:2,4 inexperienced 140:7,14,19 infallible 118:14 inform 131:7

information 47:11,14 74:23 89:22 106:6 108:2 124:14 125:11 126:19 127:20 131:7,13 154:7 159:9 173:18 196:2
informed 36:1 153:25 154:3, 23
informs 154:7
inherent 97:3
initial 145:2
Initially 59:2
inmate 9:22 32:7 46:24 48:11 57:9 91:21 144:17 153:15 172:17 186:2 195:2
inmate's 47:12
inmates 14:10 16:17 17:2 19:14 20:2,23 27:10 28:3 29:3 30:14,22 32:2 33:10 48:18 52:15 54:14 55:1,2, 15 56:5 57:1,5,6,23, 25 59:19,25 60:1,3 61:8 64:14 65:3,12, 17 73:7,8,11,15 88:16 133:9,10 145:20 153:16,20 166:23 167:5,15 183:2 187:3 188:19 189:9 190:14,19,20 200:2
inmates' 27:3 62:11 188:15
insanity 52:8
inside 21:12 44:1 52:9 81:18
inspect 85:5
instance 91:6 144:20
Institute 34:24 121:19 146:10
institution 28:5 52:10
institutions 31:9 158:4
instrument 192:5,8
instruments 36:17 118:4
insufficient 70:17 107:19 109:3
integrity 140:20
intensity 171:11
intent 142:9 172:24
interaction 88:3,13 97:4
interdependence 159:25 160:19
interest 18:4 116:3 141:2 156:3 160:12,20
intern 53:24
international 97:24

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internship 44:3,7 51:16,23 52:2
interpretation 90:13 173:19
interval 146:11
intervening 194:5
intervention 53:13 132:10,17 134:7,8,16,18,20 135:8 143:1
interventions 11:25 48:10,13 193:24
interview 59:18 81:20,23 82:1, 5 83:1 85:13 102:5, 7,16 108:21 116:16 117:14,16,20 119:3, 12 173:15
interview-based 116:17 118:3
interviewed 199:21 200:2
interviewing 57:25 190:13
interviews 136:19
introduce 4:9
Introductory 13:5
invalidate 135:12
invalidates 145:13
inverted 182:6,7
investigating 117:12
Investigation 151:2
Investigative 151:13
invited 32:20 34:3
involuntarily 164:12,16
involve 14:24 24:1 44:13 57:12 72:25 136:18
involved 15:23 33:2 38:5 115:15 133:7,12 142:2
involvement 27:14 58:21 65:25 70:6 72:18 85:19 133:15
involving 72:16 75:5 76:9 77:6 134:15 148:19
isolate 180:3 185:8
isolated 144:19
isolating 86:15
isolation 84:16,21 123:22 124:4 144:20
issue 20:18 24:25 26:3 34:20 35:23 57:17 58:23 70:9 72:12,13 75:20 85:15,21 88:7 92:12 104:23 116:2, 8 129:7 132:9 144:9 145:2 148:25 153:20 157:17 158:3 159:2

165:20 172:19 183:12,24 184:10 issues 33:9 131:8 136:2 190:12 item 43:19
J
Jackson 4:20
jail 56:17,21 57:3 183:2, 3 184:2,8
jails 54:25 56:19
Jamie 4:20
Jay 3:24 4:6,11 5:8 7:22 82:6,19 83:14 84:24, 25 105:24 112:14,17 151:3 174:15
Jay's 111:17
Jeremy 27:21 40:22
job 6:18 113:22 127:9, 15 129:6 148:12,14
jobs 148:9
Joel 78:7
Jonathan 198:6,13,19,25 199:3,20,23 200:7
journal 15:11 19:10 94:12 137:17 186:10
journals 13:17,18
judge 106:20 107:7 109:14,18 110:24 111:3,14,16
judgment 10:3,4 115:25 116:4 149:1
July 29:9
Junior 13:4
justice 2:4 20:9 29:2 33:2,3 34:24 35:1 40:5 95:23 126:12 133:7, 12,14 146:10
justification 90:7,20
Juveniles 92:19
K
Kansas 9:21 13:4 20:16 30:17 35:4,16,17,18, 19 39:22 44:13,19 45:3,15 50:8 51:6 54:19 55:24 89:19 126:4 131:14 191:11,15,20 192:24
Kathy 4:1
Kentucky 72:5
key 57:21 146:9

kicking 175:23
kill 173:2
killed 191:7
kind 114:14 120:3 170:18 172:9 176:17,19 196:13
kindly 99:9
kinds 177:10,11
knowledge 23:11 68:20 76:7 177:24
Kupers 3:21 7:21 25:2 72:24 81:2 86:21 99:7,10, 14 100:5 101:7 102:3,14 103:24 104:6 110:14,19 111:5 112:5,13,16, 20 113:24 114:17 115:4 119:2,6,23 120:1,13 122:15,18 123:1 125:22 126:18,20 127:18,24 128:17,21 129:14 130:2,9,15 131:16, 22 151:1 153:8,10 175:9 176:3,23 197:14
Kupers' 3:24 82:10,18 83:22 85:25 100:1,19,20 101:18 102:7,20 103:11 111:17 119:22 129:6 151:12 174:12
L
labeled 60:25 62:17 63:21 67:21
lack 97:5 187:15
Landmark 2:15
landmarklegal1@ gmail.com
2:17 language
49:9 Lansing
55:25 large
155:19 largely
21:7 66:3 larger
160:17,22 189:21 Larned
55:23,24 56:2,11 lashes
176:8 lasted
136:15 164:15 latest
35:20 law
2:3 19:15 64:23 121:9 122:1 lawsuit 10:19 40:6 106:11 120:24 122:2 lawsuits 9:16,19

lawyers 6:3 76:16
lay 11:16
lead 14:7,15 27:21 116:10 191:21 193:2
leading 88:4,7
learn 182:2
leave 91:9 109:1 165:7 187:14 195:9
Leavenworth 44:4,13 55:25
leaving 46:7 176:15
left 9:24 28:7 43:1,3 103:15 108:12 117:24 164:20,23
legal 2:15 4:2 38:23 57:15 115:15 116:2 121:10,14,21 124:21
lend 123:20
length 49:15 51:12 56:20, 21 90:9,21 123:2
lethargic 171:21 174:3
lethargy 172:1,2 174:3
lets 22:15
level 12:7 45:4,14,16,17 145:18 148:5,8 173:24 174:3 188:19
levels 88:21 90:8 148:3,25
Levenhagen 4:7 82:2
Levulis 30:7,11
Liberties 58:17 61:22 65:23 66:14,23 67:19 68:12 69:21 148:20 199:13
license 9:12
licensed 9:9 45:3
licensure 45:9,13,18
life 12:13 20:9 148:2,5, 25 196:11
lightly 178:9
limit 50:8 92:15,23
limitation 90:19
limited 86:25 116:18 118:4 123:15 149:13
limits 86:7 92:5,9,13,17
link 8:2
list 8:1 42:10 80:17
listed 14:3 18:10 19:25 23:4,16 27:2 30:2 33:1 34:4,8 41:19 43:5 58:5 61:22

65:24 70:2 72:4,14 80:15 82:8 126:19 140:3 163:4,13 Listen 128:25 listing 19:13 25:21 42:11 58:16 listings 31:25 lists 25:19 literature 11:23 12:7 81:8 82:9,13 88:16 100:6, 10,17 122:16 123:3, 6,23,24 127:2,3,4,9, 10,12,17 129:3,4,7 130:10,20 153:7 189:1 literatures 120:9 litigation 4:2 27:14 59:6 60:6 79:8 106:16 lives 20:23 living 114:14 180:13 local 43:12 located 155:9 location 193:20 logistical 152:22 logistics 7:7 long 8:4 29:21 30:1 45:25 51:22 53:1 75:22 77:24 88:1,11 93:1 102:14 103:17 150:3 177:12 187:4 long-term 14:9 30:13 49:8,18 50:19,23,25 91:9 145:16 168:10 197:23 longer 20:22 49:16,19 57:4 95:20 longitudinal 14:8 30:12,17 35:4, 15 36:16 126:13 136:12 longtime 194:9 looked 8:1,2 27:25 68:6 80:7 136:21,23 141:23 143:13 144:9 158:7 159:17,19 169:12 179:24 182:9 loss 107:23,24 lot 131:1,3 159:22 175:20 176:5 low 175:11 199:1 lower 3:14 69:19 173:3 189:15 Lubbock 2:16 4:5 10:23 41:21 43:8 lunch 103:11

M
M-O-R-G-A-N 5:11
MA 2:5
Macarthur 2:4
Maclean 26:10
made 17:14 49:25 68:25 92:3
magazine 14:20 15:7 19:3
Maggie 2:3 4:10 5:7
maggie.filler@law. northwestern.edu
2:6 magnitude
156:4 185:25 Maine
32:3,4,15 40:2 mainstream
99:3 maintain
175:3 Majesty
62:8 major
182:23 193:7 majority
156:25 158:25 200:1 make
6:7 48:4 89:15 90:3 92:18 99:22 120:18 121:3 138:8 145:12 157:15 171:5 177:3 194:6 makes 105:6 189:16 making 89:9 male 14:10 55:2 malingering 83:24 84:2 112:8,18 114:1,8 115:5,23 116:10,18,19 117:9, 19 118:3,15,19,23 119:14 120:23 121:5 manage 132:6 management 166:25 mandates 66:2,6 manner 21:20 manual 17:7,10,19 manuscript 27:19 183:25 March 27:3 Marcus 58:11 mark 4:6 152:24 marked 8:11,13 15:25 16:2 60:13,15 66:7,9,19, 21 67:14,16 68:8,10 69:16,18 70:19,21 71:3,5 74:8,10 80:11 96:12,14 106:25 107:2 116:23,25 128:14,16 139:11,13

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153:1 174:25 193:11 market
18:14,25 19:1 marketing
18:18,19,21 Massachusetts
33:6,7,15 40:2 master's
11:5 13:3 44:5,6,16 45:4,14,16 materials 8:3,5 80:20,21 82:8 matter 3:10,15,16 4:6 5:8 6:2 42:21 57:15 58:14,21 59:6 60:17 62:9 66:5 68:13 70:2,23 71:7 77:11, 22 80:25 153:13 169:23 177:18 matters 57:22 70:8 144:22 Maureen 137:21 max 167:15 maximum 56:2,4 90:16 167:4 169:11 Mccorkle 4:2 Mcdonald 134:8,11 MCMI-3 192:5 meaning 11:9 77:11 82:2 100:15 107:20 164:22 165:1 meaningful 97:4 meant 21:11,14 91:19 100:9,14 measure 118:14 132:15 135:9 153:19 160:12 173:17 measured 182:10 measures 27:12 28:4 159:18, 20 160:1,19 193:21 medical 11:9,10 12:8,21 31:3 78:19 91:13 93:17 101:8,13 107:25 136:22,23 137:1 medication 113:5,8,12 114:22 medium 52:18 meet 48:15 70:15 73:4 97:21 157:22 meeting 28:23 29:21 57:23 98:4,9 105:21 meetings 105:25 Melton 3:20 116:10,21 member 10:5,13 15:12 94:14 98:2,8 104:3 members 72:20 73:6 199:6 memory 93:23 143:11 mental 10:12 15:20 17:1

18:8,15,19 19:2 20:1,8,13 27:4,12 28:2,4,9 30:21 31:6, 7,16 32:2,7 33:2,5,6, 10,15 34:21 37:2 38:6,9,14,18 39:1,22 43:1,2,9 44:18,22,24 45:2,6 46:16,20,25 47:10,12,15,22,23 48:5 50:14,21 52:10, 21 53:13 54:3,8,16, 24 55:4,6,12 56:16 57:8,11,13,14,16 59:25 61:8 62:11 65:14 66:3 70:9 72:10 73:11 74:24 76:10 77:8 81:23 83:5,7 85:2,11 87:3, 11 88:3,13,18 92:11, 20 93:14 94:25 95:5, 7,8 97:23 100:24 101:18,21,22 102:8, 10,22 103:12,17 104:3,7,10,16,22 105:11,16,17,25 106:7,23 107:15,19 108:7 109:19,20,22 110:8,9,16,22 111:7, 18,24 117:14 118:1 120:9 121:22 133:7, 9,10,11,14 153:15, 17 154:8 158:3 169:22 170:14 171:8 172:13 176:1 177:16 184:25 185:2,14 187:10 188:14 191:13 192:24 194:13 198:21,24 mentally 59:8 61:18 105:5 106:13,21 mention 25:1 99:9 mentioned 39:21 47:5 51:5 55:21 99:13 140:3 mentioning 176:18 messages 152:22 met 48:19 55:15 56:15 73:6 112:18 meta-analyses 29:15 30:14 35:8 68:3 90:6,13,15 91:2,16 125:24 130:4,10,18,25 149:3 153:4,24,25 154:2,6,21,23 155:2, 10,11,22,25 156:8, 24 158:16,22 161:5, 9 162:7,16 163:1 164:3 166:4 178:10 179:19 184:12,15, 20,24 185:7,18 186:12,21 189:10,17 meta-analysis 15:15 19:16 29:16 62:25 63:7,14,15,18 90:19 91:7 131:19 156:6 meta-analytic 157:22 160:10 method 114:6 117:13,19 132:14 166:22 168:10 methodological 36:7 methodologies 140:17

methodology 81:6
Methods 169:9
Metz 134:8
Metzer 15:19,22
middle 109:11 117:23
mike 41:4,6 197:12
mild 169:21 170:9,13,16, 17,25 171:8,10,15, 17,23 172:2,7,20 173:13,22 174:16 175:11 177:16 185:19 189:12,20
million 60:10,22
Mills 27:21 40:22
mind 78:8 151:10 181:10
minimal 21:6
minimize 105:11
minimum 52:19,22,23 104:21
minor 98:22
minute 150:17 174:19
minutes 8:6 77:25 78:1 102:19 109:9 196:25
mischaracterized 65:20
missed 129:21 197:1
missing 9:6 57:21 132:1
mission 38:7 39:12
Mississippi 22:8
Missouri 22:3 31:9,11,16
mistake 182:16
misunderstood 65:6 167:25
mitigate 105:1
mixture 107:16
model 12:9,21 196:12
moderate 169:21 170:9,14,16, 17,25 171:8,10,15, 17,23 172:2,11,20 173:14,22 174:16 175:11 176:3,24 177:7,16 178:21,23 179:8 185:19 189:12,20 198:25
modification 20:7
modified 20:22
moment 46:12 67:8 177:3 178:5 190:22 196:18 199:9
monthly 101:18 102:8 103:19 104:23 110:16,19

months 16:24 46:6 51:6 53:3,5
mood 171:20 179:5,11
Morgan 3:3,11,12,15,16,17, 23 4:4 5:1,11,15 6:12,23 8:12,13,19 9:9 10:22 11:9 12:25 14:20 16:1 17:3 19:11 26:8,10 30:7 37:19 41:16 53:22 60:14,25 61:6,15 64:11 66:8,20 67:15, 22 68:9 69:17 70:20 71:4 74:9 90:6 96:13,24 101:11 103:10 107:1 108:2 116:24 121:16 122:14 128:16 133:21 134:3,4,5,8, 11,12 138:4 139:24 150:16 151:5 153:2 162:25 166:3 175:7 193:12 197:9 199:20 200:22
Morgan's 3:8 63:14
morning 5:5,6 148:16
Motion 74:15
move 26:25 109:4
moved 146:22
multi-variate 160:2,9
Myers 82:3
N
named 9:23 10:14,15,19 198:6 199:6
names 78:24
narrowed 157:20
NAS 187:2
Nashville 39:15,16
national 29:2 34:24 37:21,23 38:3 96:16 146:9
Nations 95:12,15
Nations' 95:19
nature 7:6 21:4 32:10 38:24 39:18 43:22 52:1,8 53:11 55:8,18 56:13 78:12 86:4,5,7,8,25 92:14 153:10 160:21 168:13
navigating 22:16
NCCHC 3:18 38:20 39:2,12 94:17
nec 189:24
necessarily 15:6 56:23 92:13,16 157:6 167:6 184:3,4 187:22 189:22 190:1

necessity 115:2
needed 20:19,20 21:5 90:4 114:6,19,23
negative 82:15 88:17,20,24 89:23 120:9 172:13, 17 179:11 182:11, 12,17 185:17,23,24 188:20,21 198:21,24 199:4
negatively 28:1 171:20
nervous 175:18
NFL 43:17,25
NIJ 35:3,8,11,21 36:11 137:19
nodding 35:6 74:5 101:1
non-disclosure 43:23
non-forensic 115:13
non-general 147:2
Non-refereed 26:18
note 30:4 175:1
noted 110:2 166:8 192:16
notes 64:6 151:17 199:8
notice 16:8 43:13 44:21
noticed 27:2 28:22 180:15
Nowotski 82:2
number 4:8 13:24 24:24 27:1 36:6 43:4 55:2 65:12 108:17,20 117:11 133:19 134:10 155:3 173:19 175:4 181:6, 7 199:23
numbers 157:5 162:3,4
nutshell 12:9
O
O'Keefe's 137:21
oath 67:1 71:9
objection 22:12,21 23:9 48:1,7 65:8 76:18 83:3,8 84:17 87:4,22 88:4 89:11 93:4 95:2 99:4 101:25 102:11,24 104:12 105:2,8 109:24 111:9,20 112:1 118:16,25 119:19,25 120:11,16 121:13 122:5,9 124:1,20 125:1 126:22 127:21 129:10 130:12 141:14 149:21 177:1 183:22 187:17 189:25 195:19
objective 127:15

obliged 125:19
observation 104:24
observations 87:20 173:16
observe 104:3,7 185:21
observed 189:8 190:19 196:6, 10
obsessive 176:5
obtain 121:11 122:2
obvious 45:23
occasion 19:8
occur 109:12 170:6
occurred 50:16
offer 31:12 184:3
offered 71:7 85:7 104:15 177:15
offering 153:11
office 2:10 4:18 37:11 200:21
official 49:8 194:16 197:18, 19
officials 15:8
oftentimes 144:21 159:16
Oklahoma 9:25 11:13
omitted 125:25 131:6,13
one's 11:20 12:15 28:1
one-day 30:23 52:3,4
online 8:2 19:8 24:14
Ontario 62:8 68:22 69:8
open 86:12 87:1
opine 61:7 104:10 122:13 169:19
opinion 3:10,14 47:20 58:22 59:2,4,5 60:1,5,19 65:12 68:15 69:3,19, 23 72:21 73:10 74:3 76:17,22 80:25 82:18,22 83:22 85:10 87:2 92:21 98:18 104:25 105:20,23,24 106:2, 3 107:11,15 108:6, 15 109:15,21 110:6 114:4 115:14 125:12 127:7,12,18,25 128:24 129:7,9,18 130:3,7,17,22 131:4 153:6,11,14 154:3,7 161:14 170:12,24 174:17 176:1 177:14,23 185:15,20 189:4
opinions 6:2 14:12 57:20 59:22 65:15 66:16

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69:1,14 70:25 73:17 76:20 80:12 81:3 85:1,5,7 91:11 104:15 106:19 110:4,7 121:22,25 124:17 128:20 129:25 153:3,8,23 opportunity 6:7 49:2 55:16 70:15 84:8 104:7 200:17 opposed 18:15 44:22 182:24 opposite 138:23 opposition 74:14 option 49:1 111:1 114:16 order 7:18 14:4 82:25 114:17 115:9 121:7, 8,25 150:24 175:2 181:13 organization 38:9,14,17,18 93:19 96:19 organizations 38:25 93:7,12,14,15 95:5,6,11,14 97:24 oriented 21:3 out-of-cell 21:14 105:21,25 106:4,7,22 108:7,10, 24 109:2,20,22 110:3 111:7,24 outcome 10:7 11:20 116:3 160:20 163:3 outcomes 20:10,23 161:18,24 182:12 outdoors 86:20 outlet 94:11 outline 15:20 outlined 124:10 outlining 32:8 over-reporting 118:7,12 120:5 overcrowded 179:22 180:5,8,9,13 overcrowding 180:1 181:20 overlap 112:25 158:8 overstated 122:19,21 Overton 4:5 overview 5:24 130:11 overweighting 160:6
P
P.O. 2:16
Pacholke 7:21 81:2 86:22,23 151:1 153:8,9 194:9, 21
Pacholke's 86:1 106:15 194:7 195:14 196:3

paint 126:25 127:15
palpitations 175:17
paper 30:16 137:8 150:21 151:6 155:6
paragraph 61:2 62:20 63:12 64:2,11 100:12 107:13 108:14,17 109:7,11 116:15 117:24 145:5 146:7
parse 171:25
part 27:13 36:18 52:13, 17,20 54:2,23 55:25 56:16 59:11,16 63:7 68:1 70:11 83:21 87:15,18,19,23,25 88:10 89:18 90:19, 22 98:6 110:11 116:20 122:2 136:21 137:23,25 165:2 188:7 189:17 200:15
participants 143:5 146:11 147:1, 18 166:23
participate 143:6 168:5 194:23
participation 168:14
pass 8:12 16:1 18:7 60:14
passed 66:9,20 68:9 69:17 70:20 71:5 74:10 96:13 107:1 116:25 128:15 139:12 175:13 193:13
passing 8:13 67:15
past 27:2 58:6
pathway 188:8 195:12
patient 113:8,9 114:21
Paul 40:21 130:4 156:16, 18 163:20
pause 33:22
peer 13:18,22,24 14:23 15:2,3 19:12,18 26:19 36:10 137:9, 12,17 186:10
peers 36:14 105:6
Pelican 40:6 57:23 72:16 198:14,17
penalty 41:15
pencil 137:8
pending 9:18 76:7
Pendleton 108:21
people 18:22,23 22:19 23:20 35:15 37:15 44:13 45:9 52:7 56:15 73:1 89:9,14 92:20 98:19,22 123:21 142:1 147:20 149:19 164:9,16 170:15,16 177:12

179:10 189:14,15 190:9,10 197:23 perceived 98:12 percent 50:15 164:19 percentage 50:13 perception 98:14 perform 34:13 54:6 84:1 102:4 121:10 122:1 135:14 175:8 performed 133:2 performing 54:3 104:3,8,16 135:3 142:2 period 16:20,22 46:4 50:12 146:19 147:7 156:23 165:18 168:18,22 191:16 194:25 196:22 periods 144:21 146:15 person 11:16 48:5 50:21 55:5 83:12 88:2,12 115:21 116:2 118:19,22 121:11 122:3 198:8 personally 133:2 Persons 33:2 perspective 47:15 pertain 25:25 30:14 32:17 34:4,10 58:8 74:14 pertained 85:11 pertaining 32:22 33:24 42:2 pertains 30:16 66:4 pervasive 107:15 Petersburg 51:16 52:18 Phd 11:21 46:8 phon 40:22 75:11 82:3 149:25 phone 2:5,12,17 77:21 102:21 phrase 170:10 phrased 142:22 physical 97:23 180:22 181:24 182:10,18,21,24,25 183:17,19 physically 176:10 physician 93:19 Physiological 175:15 picture 127:1,16 piece 13:20,21 14:14 15:14,17 16:13 18:2 97:13 140:1 156:9 161:5 193:23

pieces 151:6
place 73:14 92:12 107:21 171:19 176:13 190:16
placement 27:12 37:14 52:4 60:3 75:21 89:24 200:3
places 73:11
placing 46:24 47:21
plaintiff 2:2 4:10 5:8 75:19, 20,22 82:5,19,23 100:19 102:18
plaintiff's 7:19 59:5 72:21,22 74:15 75:11 99:7 150:24
plaintiffs 60:9
plan 83:16,18 154:5 172:23,24 173:2,4,5
planned 35:12
planning 28:16 154:1
pleasurable 174:6
plucking 176:8
Poche 86:21
point 6:14 61:2 81:4 133:16 134:19 143:23 144:18 168:9 169:5 172:14,19 175:16 177:18 178:17 179:1 182:6 183:13 186:8 188:22
pointed 184:2
points 5:23 162:13
policies 73:14
policy 19:15 47:17,18 50:6
poor 167:24
pop 185:2,4 186:16
population 14:9 29:6 30:13 33:16 46:13 50:3 51:9,13 73:25 87:7 91:22 93:3 98:21 143:5,18 145:17 146:23 147:1,2,8 166:14 167:12,20 170:19 171:18 179:15 183:1 185:8, 9,16 186:2,5 188:3, 12 191:2 193:6
populations 92:19 166:14 179:14 186:4
portion 57:2
poses 87:13
position 3:18 13:2 41:18 44:21 93:25 94:13, 17,19,20,22 95:19, 24 96:6,7,10,15,23

97:3 104:10 113:24 127:14 Position/ appointments 13:1 positions 13:10 37:19 93:7 95:7,16 96:2 posits 186:21 possibility 83:23 112:7,14 possibly 16:23,24 48:13 165:12,13 post 27:11 39:22 132:11 163:21,23 post-date 149:4 post-dated 149:5 post-doc 13:7 Post-doctoral 43:7 Post-release 197:15 poster 28:23,25 29:11 posttraumatic 170:3 potential 78:4 110:2 113:12, 23 115:22 122:22 141:9 169:6 171:6 potentially 131:13 144:8 154:4 Power 43:15 practice 10:10 12:2 18:25 41:20 42:4,11,16,19, 25 54:24 78:18 89:6 91:11 93:9 106:5 113:18,20 115:23 116:20 118:6 122:8, 11 188:13 195:1,4, 15,16 practices 15:20 112:24 167:5 193:24 194:19,25 Pratt 107:7 109:14 110:24 111:3,14,16 Pratt's 109:18 pre 27:11 163:23 pre-contamination 149:11 pre-post 132:8 163:18 pre-segregation 153:21 precautions 89:5,8 92:18 precise 160:4,11 precisely 48:21 precursor 175:6 predoctoral 51:15 preeminent 38:8,14 39:2 prefer 176:16

premise 145:11
prepare 6:5 7:1
prepared 70:22 76:5 181:11
preparing 80:18
prescribe 113:4
present 41:19 47:24
presentation 27:3,6,9 28:23,25 29:8,11,23 30:10 32:14,15
presentations 13:14 22:25 23:3 27:1 28:21 30:2
presented 29:21 30:20 32:10 49:1 119:22
Presentence 151:2,13
presenting 32:12
presents 47:21
president 39:9
press 20:3 24:10 26:8,13
pretest 28:6
pretty 81:10 144:7
prevailed 60:9
previous 40:16
previously 29:15 88:25
primarily 15:8 41:23 83:20 84:6 95:15
primary 38:6 50:21 73:16,17 90:23,25 91:5 136:2
primitive 91:17
print 162:20
printing 17:16
prior 46:7 49:25 85:19 92:11 106:15
priority 50:4
prison 21:22 23:6 27:4 28:7,8,10 33:16 34:11 35:12 36:20 37:16 44:4,12 45:19 46:13 51:6 53:24 54:19,20 56:22 57:19,24 78:17 81:18 84:10,16,23 85:5,15,18 86:19 87:7 89:4,14 105:7 123:22 133:9 135:15,18 136:1,7 140:23 141:2 144:17 156:21 177:20 180:13 185:22,23 194:15,16,22
prisoner 7:19 48:24 93:2 101:12 107:17,21 109:1,6,9 135:18 142:19 164:11

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173:21 188:2 191:13 198:2,6,9,13,19 199:3 prisoner's 150:24 164:13 prisoner-onprisoner 72:6 prisoners 21:11 49:3 50:13 53:2,12 54:7,12 55:13 59:9,16 70:15 73:4 84:13 87:13,20 89:4 90:4 105:5 106:13,21,23 108:22,23 109:2,4 111:1 123:16 136:6, 10,22 137:4 143:13, 15,17,18 145:7 146:13,22 147:6 148:6,8 164:19,22 165:1,6,17 166:14 168:5,10 170:24 182:24,25 183:2,18 185:9 186:22 187:13 188:8 189:5 190:7, 24 191:5,8 192:4,22 195:7,25 198:16,20 prisoners' 46:19 74:24 87:3 93:9 105:11 108:1 156:1 168:15 179:23 186:13 188:14 prisons 17:20 22:10 24:2 31:3,20 32:22 33:7 34:5,14 44:2,18 45:10 57:5,6,7 59:11,14 70:11 81:16 179:22 180:6, 8,9 privacy 107:22,23,24 private 31:3 42:4,16 43:16 109:8 privileges 148:6 196:11 pro 140:23 probation 37:11 probationers 37:3 probative 110:20 166:5 173:10 problem 12:16,17 145:3 147:25 195:14 problems 56:6 91:21 127:5 145:21 procedure 117:16 143:12 160:2 proceedings 61:16 process 5:25 14:24 15:2 17:16 36:10 90:23 143:14,19 144:19 184:10 188:11 produce 169:21 170:13 177:16 produced 74:20 159:1 profession 12:11 professional 10:12 12:7 37:18 41:17 44:18,22,24,

25 45:5,6,7 46:16 50:22 61:9 83:6 93:7,11,14,15 95:5, 6,14 104:8 151:3,13 192:24 194:10 professionally 9:14 professionals 14:24 15:5 18:8,15, 20 19:3 33:5 38:9, 15,19 87:12 118:2 Professor 10:23 program 17:2,3,6 18:1,5,9,10, 15,20,24 20:1,6,8, 10,20,21 21:5,11,20, 23 22:11 23:8 30:22, 25 31:12,13 32:2,11 43:8 44:5,6 188:10, 11 194:3,23 195:21, 25 196:6,7,9,14 programs 16:17,25 194:24 196:21 project 192:18 prominent 139:1 pronunciation 45:23 proper 104:16 properly 141:17 property 152:7,9 proposal 35:25 36:14 proposed 35:10,16,17 36:16, 19 prospects 43:25 protected 45:2 protecting 92:18 Protection 3:19 107:3 protective 7:18 150:24 175:2 190:25 provide 11:25 16:16 18:12 31:15,16,19 33:6,15 37:1 45:1 47:11 48:5 52:20 59:2,4 71:11, 13 76:17 80:25 81:2 119:7 151:15,18 160:4 provided 7:18 37:8,13,15 39:25 50:22 52:11, 14,18 53:2 61:8 67:1 76:20 80:22 81:9 153:7 159:8,10,11 provider 43:12 providers 31:7 providing 31:7 33:10 39:1,23 43:16 72:20 89:22 106:22 108:1 119:12 127:3 187:5 psychiatric 38:21 56:3,5 62:22 88:25 93:13,21 94:22 101:3,9 109:23 113:5,7

119:13 120:4 143:6 145:16,21 psychiatrically 123:7 psychiatrist 99:10 112:20,22 113:9,15,25 114:22 122:12 psychiatrists 113:18 114:7 121:10 122:1,8 psychiatry 112:25 psychological 3:22 11:24 14:8 29:22 30:11 38:22 51:22 83:23 84:2 85:3 93:22 94:14 113:19 114:1,18,19 115:9,15 118:10,14, 18,22 121:11 122:2 139:8 161:18,24 163:3 175:15 177:6 178:19 179:23 187:16 192:4,8 psychologist 9:9,17,20 44:10,23 45:2,5,13,15,16 64:9 78:5,6 113:7 114:12, 21 psychologists 12:11,19 15:4,6 113:4 psychology 10:23 11:6,7,13,17, 18 12:8,10 13:6 19:15 23:18,21 24:5, 9 41:21 42:5,11 43:8,21 44:3 51:16 112:25 121:18,20 psychotherapy 11:25 12:1 PTSD 193:7 public 19:15 publication 13:21 14:4,11 publications 13:14,25 19:12,18 23:5 25:19 26:18,19 133:8 publish 27:23 published 17:10 19:15,25 20:12 27:18 29:16 35:5 126:11 130:4 137:16,18,20,23 184:1 186:10,15 publisher 17:11 publisher's 17:14 publishing 184:1 pull 116:8 166:17 pulled 143:5 157:19 179:25 punitive 145:8 purport 155:22 purports 178:2 185:13 purpose 90:23,25 91:5 118:5 purposes 17:25 57:15 133:13 198:9

pursuing 45:17
pursuit 51:19
put 16:21 59:24 67:22 72:1 91:22 99:1 125:19 131:1 138:8 159:24 160:7 185:16,23 186:2 197:12
Putnamville 108:21
putting 92:14 190:12
Q
qualifications 8:23
qualified 76:12
quality 62:22 99:23,25 104:10 137:14 148:2,5,24 196:11
Quantitative 19:13
Queen 3:11,12 62:8 66:14, 24
question 6:15 41:7 48:21 69:4,11 98:6 121:24 127:24 128:25 147:16 167:10,11, 24,25 172:1 175:7 178:13 183:16 192:7
questioned 63:6
questioning 3:9 14:16 16:4 65:4
questions 6:1,3,13 40:16 55:16 108:9 110:1 114:7 142:16 197:8 200:9, 12
quick 53:14 150:11 165:22
quit 184:10
quote 108:2 118:1,8 145:6, 9 169:23 187:2,6 188:18,22 199:19
quoted 167:2
R
raise 4:21
raised 36:9 184:10
raises 108:9 110:1 139:25
raising 105:16
Ramish 149:25
random 143:9
range 172:15 177:7 185:19 189:13
ranged 77:25
Ransom 75:11,12,18,20

rate 79:13 165:11,12
rates 87:6
re-analyzing 126:14
reach 82:22 83:6 162:18
reached 6:2 153:24
reaching 22:14 101:6 125:15
reaction 171:19 185:23,24
read 18:3 60:8 69:3 97:7, 24 110:13 112:12 117:16 118:8 125:2 149:1 150:1 158:1 174:7 181:6 184:19 198:12 200:17
reading 64:20 107:14 162:19 174:6,7 175:25
real 142:15 198:13
realize 33:23
realized 152:5 183:15
reason 6:23 44:23 52:8 87:15,19,25 88:11 90:20 111:4 120:22 121:3 190:13
reasonable 107:22 111:19,22 112:4 128:20
reasons 36:1,4 71:20 165:13 190:14
rebuttal 3:15 59:4 70:22 72:20 100:4
rec 17:15 172:9
recall 36:6,8 40:24 56:12, 13 61:14 63:6,9 64:5,6,7,10 65:1,5, 14 68:1 91:17 93:18, 20,24 94:19,20 96:25 119:9 146:4 161:1 162:15 169:13 180:19 186:24 187:6 199:5,22
recalling 96:10
receive 19:3 32:12 110:9 159:13
received 11:12 13:3 35:21 44:2,16 77:12 80:20 105:25 106:4 108:10 151:23
receiving 44:17
recent 9:6 191:20
recently 62:6 96:20
recognized 116:17 139:3 195:3
recognizing 116:16
recollection 103:15 200:4
recommend 21:19

recommendation 16:15,16 18:4 90:12
recommendations 16:9,13 91:10
recommends 193:24
reconsider 109:21
record 40:10,13 53:17,20 67:7,9,12,21 88:5 101:13 102:10 103:5,8 104:24 139:19,22 150:11, 12,14 165:23 166:1 175:1 197:3,6 200:13,14
records 85:18 101:8,16,18 103:13 136:22,23 137:1
reduce 50:3 74:4,6 94:24 96:3 188:1
reduced 42:18 43:3 95:18
reducing 42:24 50:5 73:24
refer 13:18 94:2 113:9 114:11,12 133:5 138:2
Refereed 13:17
reference 22:24
referenced 151:23
referencing 117:25 139:14 180:24
referral 78:5 113:14 114:22
referred 44:21 49:7 78:21,23, 24 106:15 191:19
referring 18:11 22:5 91:1 106:17 114:21 135:7 171:11,12 181:10 197:15
reflect 101:9
refresh 93:23 103:14 143:11 200:4
refused 109:1
regard 10:10 47:11 59:3 85:1 86:19 100:24 110:2,8 153:9
Regional 43:1,8
Registered 45:16
regular 37:10
regularly 89:14 107:21
rehabilitation 21:3 73:13 195:1
reimburse 152:12
rejected 148:24
relate 30:3 199:20
related 23:23 25:5 33:10 112:6 187:6

McCorkle Litigation Services, Inc.

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relation 40:5 81:3,12
relationship 31:22 78:12,25 79:3, 6
relative 28:5 148:14 153:21 185:1 199:6,7
release 28:5,10,11
released 197:23
relevant 21:18 154:4 157:16 161:18,23 183:13 194:25 196:22
reliability 124:24 125:5 127:25 130:3
reliable 124:13,17 125:12 126:19 127:19 129:7,9,24 130:16, 18
reliance 50:9
reliant 36:17 129:7
relied 68:3 125:15 135:24 191:24
relies 116:7 123:23
rely 28:16 115:25 124:25 125:6,10,18 128:21 129:8 130:22 153:3, 23 161:9 189:4
relying 57:20 97:15 130:16 138:16 141:18 177:22 188:23
remain 187:4
remember 25:16,17 35:18 76:1 79:18 137:10 142:22 158:10 167:2 186:15,16
remembering 94:9
reminder 6:19
remove 91:20
removed 108:24 109:2
render 128:8
repackaging 161:13
repeat 38:12 41:7 88:9 98:6 158:19
replace 46:9
repor 100:4
report 3:8,11,15,24 7:17, 20,21 8:14,17 25:2 28:13,18,19 64:17, 21 66:10,12,17 70:22 71:1 74:21,23 75:1 76:5,23 77:2 80:6,10,12,14,18,21 81:7 82:11,18 85:20 86:1 91:1,4 99:9 100:4,12 105:15 106:15 108:3 110:13 112:12 116:7,8,14

118:1 119:16,22 120:1 123:2 125:19 127:4 130:21 132:1 136:24 137:19 138:5 141:22 146:5,10 150:23 151:1,6,12, 13,24 162:23 169:19 174:12,20,22 178:1, 5 180:15,17,19 181:11 183:10,16 188:17 191:20 194:7 198:1 reported 85:25 119:2 163:6 173:21 177:11 199:24 reporter 4:14,20,21 6:4 38:13 69:6,13 78:10 88:10 98:7 125:4 158:20 184:20 Reporter's 3:5 reporting 4:4 119:4 137:25 176:3,24 reports 59:5 81:2,3 100:16 120:9 125:14 153:9 198:4 represent 10:1 195:23 representation 196:19 representations 110:15 representing 4:18 181:24 reputable 99:18,20 request 110:2 requested 17:15 requests 22:18 107:17 required 165:7 200:24 requirement 51:21 121:7,8,25 122:4 requirements 45:9 138:1 research 11:22 12:2 15:3 27:24 29:10 34:8,10, 25 35:10,22 62:24 97:17 99:22 123:9, 20 132:14 135:23 137:13 140:4,7,10, 14,15,16,18 141:10, 11,17 154:11,14 155:12,15,19 156:11,25 157:21 158:15,21 163:22 177:24 178:12 189:18 190:3,5 researcher 135:17 156:18 researchers 139:1 147:11 residential 37:12 resources 38:4,23 respect 100:1 respected 99:10 respond 100:22

responded 150:17
responding 107:16,17 119:10 120:20
responds 22:17
response 76:25 79:23 84:6 117:12 150:10 175:15
responses 6:19 132:12
responsibility 42:1 52:12 99:21 126:25
responsible 55:5 89:20,21
restate 121:24 147:16
restricted 18:13 30:22 32:3 167:8
restriction 97:4
restrictive 17:3 20:2 92:15 95:24 169:20 170:13 177:15
restricts 107:25
result 34:22 60:2,6,7 68:17,21 69:7 89:3, 23 122:18
resulting 70:9 75:21 89:23 200:3
results 15:15 21:1 66:4 71:23 90:7 91:7,8 124:8 135:12 136:24,25 137:3 140:20 147:23 154:1 165:3 193:19
retained 5:12 58:22 61:7 62:3,6,13,21 75:4
retaining 76:21 77:3
Retardation 43:2,9
return 46:8
returning 23:15 31:25 70:1 72:3 93:2
reverse 14:3
review 6:7 10:11,13,14,16 13:18,22,25 14:23 15:2,3 25:24 26:19 29:10,14 36:10 47:2, 8,11,13,16,25 48:15, 25 63:5 76:16 81:1,8 82:9,13 89:14,19 90:3 103:1,2 122:16 127:2,3,9,17 129:6 137:1,9,12,17 145:23 146:4 153:7 157:23 167:1 184:9 186:10 196:25
reviewed 7:4,13,17,19 19:12, 18 36:14 48:18 68:15 96:23 97:1 101:17 103:14 110:6,24 111:14 128:22 143:12 174:12 198:4

reviewing 39:21 167:3 180:15
reviews 36:5 107:18
revisions 17:15
revisit 40:15
Rick 149:25
Rights 7:20 150:25
risk 42:1 47:22 59:25 73:11 87:13,16 89:3 92:19,21 93:8 95:8 122:19,22 153:17 173:1,3,6,8,24 187:12,22 188:1 191:6
risks 46:18,19,22
RMLP 45:15
Robert 3:3 4:4 5:1,11
Robertson 4:1
Roderick 2:4
role 46:15 47:8,10 64:5, 7,8 89:18
roof 87:1
room 87:1
rooted 12:20
rotation 52:11,13,14,16,17, 20 53:1 54:21
rotations 52:3,9 54:3
roughly 20:11 46:6 51:6,24 147:3
rounds 53:13 54:3,6,9,11 101:19 103:13,19 104:4,8,11,17,20,22 105:18 110:17,20,22 111:18
routine 116:20
RS-1 156:16 157:3 158:7 161:17 162:11,13 181:19
RS-2 156:14 157:9 158:7 161:23 162:11 179:3,5
Rudolfo 58:10
rule 93:1 113:5,6,20 114:1
ruled 156:24 157:3
ruling 116:9
running 152:6 172:9
rush 151:20
Ryan 2:9 4:17

S
safety 191:3
sample 159:14 160:16,17, 18,23 163:6,11,14 164:1 192:11,17 198:20
samples 144:2 145:15
sanctioned 27:22
Saunders 72:4
scale 38:20 193:5
scan 115:1
scan's 115:2
scanned 32:20 151:15
scheduling 7:4 109:5
scholarship 131:5
school 46:8 78:20 97:19 98:3,8,12
Science 121:19
scientifically 197:20
scope 38:24
score 137:6
scores 193:4,20
seal 75:2
sec 146:12
section 13:1,17 19:21 23:15 25:18 26:17 30:19 32:17 36:24 37:19 41:18 62:19 63:23 100:12 117:8 145:1 175:14
sector 194:13
secure 52:5,19 91:23 166:25 167:4
security 52:19,22,23 56:2,4
seeks 114:5
seg 185:3
segregated 14:10 18:12 30:13 55:4 167:6
segregation 10:11,13,14 14:17 15:21 16:5,10 19:14, 19 20:18,24,25 21:2, 4,12 23:24 24:2,20, 25 25:6,9,11,17,25 26:4,9,11,23 27:5, 12,15 28:4,8,22 29:4,9,20 30:1,3 31:8 32:7,9,18,22 33:11,25 34:4,11,14, 22 35:23 36:21 37:16 39:22 40:19 41:2,8,12,13 42:6 44:14 46:13,17,19,

24 47:2,8,13,16,21, 25 48:5,13,15,25 49:4,14,16,22 50:3, 5,9,16,20,25 51:10, 13 52:15,23 53:2,5, 8,12 54:4,7,10,12,19 55:1,8,10,14,18,19 56:8,10,15,21 57:3, 7,9,12,17 58:23 59:3,7,20,24 60:2,5 62:10,24 64:13 65:2, 13,16 66:4,5 68:23 69:9 70:10 72:10 73:10,16,25 74:4,7 75:6,21,23,24 76:10 81:1 82:10,23 84:9, 13,16,20,24 85:6,12, 20,24 86:11,15 87:7, 8,17,21 88:16,17 89:4,5,10,15,16,19, 24 90:3 91:16,20 92:1 93:1 94:1,24 95:17,20,24 96:3,7 98:17,20,23 100:16, 25 101:4,20 103:19, 25 104:17 105:1 106:8,14,23 110:16, 20 111:1,6,18 120:18,19 132:11 135:18,19 140:23 141:3 142:9,20 143:6,15,20,24 144:8 145:8,16,22 146:2,22 147:2,6 148:1,8,17 149:13, 19 153:12,14,16,20 154:8 155:23 156:1 157:18,19 158:3 159:2 164:9,17,20, 23 165:7,8,17 166:13 167:5,7,21 169:11 171:19 172:14,18 176:15 177:8,12 178:7 179:10,14 180:12 182:24 183:20 184:7,16,22 185:1,7, 8,17 186:3,7,11,23 187:15,23 188:9,12 189:6,9 190:8,15,19, 25 191:1,3,14 192:23 195:3,4,7,9, 12,17,25 196:1 198:22 199:4 200:3 segregation's 90:8,21 selection 143:11 167:19 self-report 138:17 Self-reporting 137:5,6 self-scoring 36:17 137:4 191:24 self-study 21:7 semester 13:5 send 26:16 200:21 sending 18:21 sense 36:7 43:24 120:18 144:16 189:16 sentence 97:19 100:13 107:14 117:25 sentenced 29:25 sentencing 187:23

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separate 25:14 190:18
separately 190:21
series 133:8,16 193:24
serve 39:10 47:2
served 52:3
Service 3:19 107:3 151:14
services 4:3 15:20 18:12 27:11,20 31:7,16,19, 23 33:6,10,16 37:2, 6,8,13,15 39:22,23 40:1 43:7,16 45:2 48:6 52:14,18,21 55:12 61:8,9 73:15 110:9 111:7,24 151:3 187:6
serving 16:17 57:7
set 29:1,14,24
setting 38:19 56:17 107:22 115:19 147:2 152:22 183:3
settings 33:3 37:10 133:12
settled 73:19
settlement 73:22,24
severe 56:5,6 142:20 170:21 171:23 172:2,3,7,21 173:1, 14,22 174:11,17 175:11 176:4,25 177:7 193:4 198:25
severely 174:10
severity 171:22,24 172:1,15, 19 173:25
shackling 109:10
shaded 178:9
Shaving 176:7
Sheet 151:2
Shi 134:3,4
short 49:15 50:19
short-sighted 91:17
short-term 49:7,12 50:22 144:8
shorter 56:21 57:6 92:14
show 178:2 182:23 183:16,18 185:13
showed 181:21
shown 184:11
shows 123:6 127:12 185:19
SHU 197:15
sic 37:21

side 105:18 138:8
sides 138:23
sign 200:17
signature 3:5 200:20,24
signed 8:25 43:23
significant 16:18 57:2 98:17 111:6,19 123:2 193:20 200:1
significantly 43:3 73:24 87:9 153:3
signs 176:11
similar 29:11 64:23 70:8 180:16 184:1,2 196:6
simply 12:16 18:9 22:17 24:22 89:21 95:6 114:8 159:22 160:5 194:4
sit 94:5 102:3
sitdown 101:21
situation 12:14 173:6 187:2
situations 132:6
sixth 27:6
size 158:1 159:11,14 160:4,7,15,17,18,23 163:6,11,14 164:2 178:8,21 179:6,25 180:3 181:20 182:11,14,20,22 192:11,17
sizes 159:4,9,21,23,24 160:10 161:18,24 171:11 178:9 179:2 180:11,12 181:19 184:16,17,21,22 185:3,4,13 186:11, 12
slash 66:22
sleeplessness 88:21
small 158:17,22 159:1 162:20 192:11,15,16
smaller 137:18
SMU 166:24
SMUS 166:23
social 97:4 124:6 174:4,5
socially 171:21
Solange 2:4
solely 137:3
solitary 3:9,18,22 14:8,16 16:4 23:24 25:25 30:12 42:6 61:18 73:1 82:19 87:12 90:16 92:6 93:8

94:18 95:8 96:15 97:7,20 98:3,9 99:2 100:6,11,21 105:13 120:10 122:19 123:3,7 127:13 131:5 135:23 139:1, 8 150:7 156:25 158:16,21 164:12 168:18,22 169:16,17 170:1,25 175:15,18 176:7,25 197:24 Solutions 39:15 somatoform 170:3 193:6 somebody's 22:15 sort 132:10 174:3 sound 13:25 64:16,17,20 143:21 168:7 176:17 sounds 14:2 127:8 143:22 152:11 164:18,21 182:9 source 129:24 132:24 154:7 sources 8:1 34:23 124:18 126:18,19 127:19 129:8 130:16 154:10 177:22 188:24 South 2:11 Southern 4:7 22:8 speak 144:12 speaking 38:6 59:7 116:5 121:1 125:7 143:2 special 166:25 specialist 4:2 specially 116:19 specific 24:19 26:3 35:12 57:17 59:8 82:10 85:1 93:18,24 94:6, 19 106:6 119:9 127:5 134:19 specifically 20:12 23:25 38:25 44:1 96:25 100:24 118:5 149:7 154:5 178:12 191:15 196:10 199:5 specifics 36:8 106:16 speculation 22:13,22 23:10 102:12,25 111:10 119:20 121:14 149:22 187:18 spelling 5:9 78:8 spend 53:7 172:4 spending 172:14 spent 8:5 79:10 84:24 85:6 103:18 145:7 146:11 147:1,7 sponsored 31:2 33:3 Sports 43:21

staff 81:21,24 89:4,14 90:2 103:17 104:3,8 105:17 106:1 107:16,19,21,25 109:4 187:2
stamp 60:20 107:11 117:4
stance 93:18 95:13
stand 52:6 66:16 70:25 111:4 127:14 130:23
standard 79:13 104:16 115:23 118:6 122:8,11 136:4
standards 61:10 97:21 98:4,10
stands 116:2
Starcare 43:2
stark 120:3
start 8:19 31:11 47:5 80:7 142:21 146:2 175:22
started 13:8 44:17 143:25 157:3,6,9
starting 19:21 107:13 108:17
state 5:9 9:10,25 10:1 11:13 31:16,19 33:15 39:25 40:4 44:18 45:3 57:23 58:10 81:14 85:3,11 88:5 97:17 106:3 136:7 151:2,12 152:9 176:2 188:17
statement 3:18 64:19 90:24,25 92:2 94:13 96:6,15, 23 97:3,10,16 151:24 152:2
states 45:8 62:21 64:11
statistical 155:16,18
statistically 170:23 189:11,16
status 117:15 153:21
stay 49:3,11,15 51:12 56:10,20,22 169:11 172:4 195:2
staying 19:11 41:18 46:12
steel 86:12
step 160:2
stepdown 16:17 17:6,20 188:11 194:23,24 196:1,21
Stepping 17:1,23,24 18:1,5, 14,20 19:25 20:1,5 21:23 22:10,11 23:7 30:21,24 31:12 188:7,8 194:2
steps 112:17 188:2
stimulation 97:5
stipulated 7:18 150:23

stop 85:8
Storage 82:11
strategies 117:5,8,11
Street 2:11
stress 99:14 170:3
stretches 123:10
strike 109:13 119:11 121:8 198:20
strong 175:19
structure 21:18 32:10 50:4 86:4,6,16
structured 21:17,20
Stuart 128:7
student 9:24 20:22 22:5 192:18
students 20:21 37:6
studied 90:16 136:6 168:17
studies 34:14 36:16,19 53:25 68:2,5 90:15 123:16,19,21 124:24 125:5,18 131:1,6,17, 23 133:2,4,6,8,16,17 134:6,7,15,23 135:1, 4,15,24,25 137:13 154:25 156:6 157:3, 6,21 158:7,8,25 159:13,22 166:5 167:18 189:2,11
study 3:21,25 15:23 19:16 28:12,17 29:4,13 30:17 35:4,13,15 90:7 91:15 92:3 125:23 126:3,8,10, 13,15 128:1,4,8,12, 18,21,22 129:15,19 131:10,14,18,21 132:4,5,22,25 136:3, 6,12,15,18,21,25 137:3,16,23 138:5, 11,15 139:4 140:1,7, 17,22 141:1,9,12,19, 20 142:2,8,11,19,21 143:4,7,25 145:9,13 146:3 147:3,8 148:2, 24 149:2,10,18 154:14,16,18 157:1 158:2 159:4,16 160:6,7,8,16,22 161:3,9,13,19,25 162:7,8,14 163:4 164:6,8,15 165:2,4, 17 166:8,11,24 167:3,12,13,20 168:3,4,6,11,17,25 169:2,4,12 178:15 179:3,17,18,21,22 180:5,22,24 181:21 182:10,22 183:17 185:12 186:21 187:7,19 188:24 189:13 191:20,24 192:10,16,19,20,22 193:3,13 196:14,16
study's 135:12 182:20

studying 34:11 135:5
style 117:13
subdivided 13:16
subject 28:24 59:6 62:9 119:12 127:11 142:6
subjected 13:22 15:3 26:19 123:21 138:12
submit 36:5,10 41:1,8 76:22
submitted 8:2,14 27:20 28:13 33:22 35:14 40:23 66:13 74:11 76:23 79:17 137:19 181:15
submitting 180:19
subpart 60:20
subpoena 79:24 150:10,17
subscribe 15:11 19:9
subsection 117:4
subsequent 59:4 102:17 141:16
subset 123:15 158:17,23 159:1
substance 10:8 37:2 52:16,20 100:23
substantially 49:19
substantive 7:6 148:12
substantively 102:8
successful 111:8
succinct 137:20
suffer 88:17 170:25 186:22
suffered 101:3 119:8
suffering 105:22 177:6 187:10
sufficient 105:1
suggest 91:8 98:23 106:5 189:14
suggested 65:15
suggestion 64:12 65:2
suggests 97:20 98:3,8 136:9 141:17 189:11
suicidal 89:1 174:2
suicidality 172:21
suicide 87:6,16 101:12 172:23 173:9 175:20
suicides 50:16
suit 9:22 62:12
summarized 100:5,8,10,17
summary 21:9 29:13 32:6

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112:19 141:24 160:8 summation
121:6 summer
17:12,17 29:18,19 44:6 super 167:3,15 supervise 37:5 supervision 37:1 44:9 140:11 support 2:15 97:15 123:20 178:3 supported 123:24 189:17 surrounding 140:14 survey 29:3 suspecting 118:7,11 suspended 9:12 swear 4:15,16 sworn 5:2 symptom 173:23 symptomatology 193:5 symptoms 89:1 105:12 117:5 118:7 119:4,8 120:7, 18 170:5 171:10,12, 16,19,22 172:13 173:25 174:8 175:9 177:7,10,11 197:21, 22 syndrome 197:15,20 synthesis 19:13 29:10 156:11, 12 178:12 system 20:9 35:12 78:17 136:7 148:1 156:22 systematically 117:12 132:6 systems 21:22 23:6 39:25 84:10
T
tab 3:7 138:5 154:24 166:20 168:4 181:2, 4
table 19:9 146:9 163:1,9, 10,11
takes 91:7
taking 6:4 42:21 113:22
talk 17:23 44:1 58:2 100:18 136:3 150:17 172:1 173:10 188:5
talked 23:12 75:6 137:9 148:16 154:13 188:24 189:2 191:16
talking 29:14 35:4 53:23 95:4 138:9 144:7 157:12 162:8 173:8 174:4 178:10

talks 23:6
tape 103:4 139:17
taught 13:5
teach 12:1 121:20
teaching 13:3
team 17:9 159:3
Tech 10:23 13:8,11 152:7
techniques 155:16,18
telephone 7:5 102:18
telling 196:23
temperature 86:5,6
ten 42:22 51:4 73:1,6 164:16 169:12,16
tend 12:21 182:23
tendency 105:11
Tennessee 39:15
tenure 50:17
term 13:17 45:3,5 49:16 132:17 182:12 187:1
terms 57:18 64:23 110:3 133:14 138:16 144:11,14 164:1 182:18 183:19 184:25 185:2,25 190:20,24
Terry 7:21 151:1
test 114:1 118:22 137:8 146:11
tested 28:6,7
testified 5:2 58:5 177:3 195:24 196:19
testify 71:21 76:12 83:10 106:3 154:1,5
testifying 71:9 124:13
testimony 3:16 6:8,24 64:15 65:7 66:23 67:1,4 71:7,11,13 72:20 76:2 82:17 92:25 200:6
testing 83:23 84:2 114:18, 19 115:9,16 118:11, 14 121:11 122:3 140:8
tests 113:19 114:8 116:19 118:18
Texas 2:16 4:5 9:10 10:23 13:8,11 41:21 58:10 152:7
text 23:17 116:10 132:23 152:22
textbook 3:20 116:13,21

117:1 themself
4:9 theoretical
11:19 12:4 theoretically
12:3 theory
123:25 124:4,9 therapeutic
16:17,25 17:19 18:12 21:6 therapist 109:8 therapy 21:15 50:2 there'd 113:14 thesis 188:7 thing 7:24 74:2 138:9 152:1 176:20 things 11:24 12:14 22:25 27:25 29:5 38:23 52:8 86:5,8 92:14,22 119:24 127:9 152:22 160:1,3,20 174:7 thinking 90:23 93:24 94:3,5, 6,8 176:6 thinks 113:7 thought 97:20 98:3,8,12 183:5 192:25 thoughts 89:1 threat 191:2 three-day 33:18 thumbdrive 151:21,22 152:4 tick 26:6 133:18 time 4:5 16:18,20,21 20:16,21 21:6 28:1, 3,5 31:17 35:16 36:20 38:11 40:3 44:10 45:15 46:11, 18,23 49:9 53:23 57:7,10 59:1,20 60:4 70:17 75:12 76:22 79:10 83:20 84:7,24 85:6 88:1,11 90:9,21 92:15 101:20 106:9 108:3 109:15 111:1 115:5 138:11 145:7 146:10,15 147:1,7 148:2 149:20 150:3, 9 156:23 165:7 166:24 172:14 175:18 177:12 191:11,15 195:6 196:14 200:10,13 times 5:18 51:1,4 53:9 54:25 55:1 65:12 77:4 98:25 109:2 146:12 191:19 title 30:20 44:25 45:5,6 150:25 today 3:8 5:24,25 6:6,14, 24 7:9 14:16,20 16:6 17:24 18:2 19:3 79:16,23 94:5

150:18 152:6 153:5 186:14 188:5,25 189:3 191:20 today's 7:2 told 76:16 181:12 top 19:13 24:6 85:17 97:3 133:21 topic 23:23 25:5 27:8 29:22 32:5 155:13 total 46:2 73:8 152:20 160:5 totality 98:21 127:16 152:23 totally 179:18 tour 59:11 70:11 84:23 85:13 toured 55:10,24 103:24 touring 57:23,24 towel 175:21 toxic 123:7 track 173:8 traditional 24:23 trained 140:16 141:12,17 training 11:10 30:23 31:5,13 38:4 39:23 114:5,9 transcript 6:5,7,9,21 200:17 transcription 71:6 transcripts 199:12 transfer 48:4,13 transferred 46:6 56:7 treat 12:9,17,21 187:3 Treating 33:1 treatise 132:23 treatment 17:2,7,10 18:10 20:1,8,10,20,21 21:2,11 30:21 31:6 32:2,11 37:12 52:7, 17 53:2 106:7 132:12 133:15 187:5 188:11 trial 52:6 57:1 71:18 107:6 124:18 true 67:4 71:11 142:15 190:8 true/false 192:8 trust 5:25 truthful 6:8,24 120:15 Tucson 78:16 turn 8:16 16:8 34:7 37:18

58:4 60:19,24 62:16 80:10 97:2 107:10 108:11 117:22 turning 12:25 32:16 Twenty 8:6 two-thirds 147:3 type 178:24 types 146:23 typically 12:7 56:18 98:22 113:8,10 typo 37:25
U
U.s.c 150:25
Uh-huh 10:18 40:20 181:8
ultimate 77:1 130:22
um-hum 6:20
unable 6:24 76:17 124:23 125:4
unambiguous 6:19
unattended 54:16
uncertainty 187:4
undergraduate 11:5 44:3
underreport 105:11
understand 6:10,13,15 10:22 11:2 14:23 21:10 34:20 44:2 45:8 51:15 54:18 64:23 70:14 72:5 74:20 75:1 81:13 82:17 90:2 110:12 116:1 121:16 129:2,14 130:25 131:16 136:13 143:13 144:13 150:18 151:21 152:10,16 153:2 155:11 156:8 169:4 172:12 177:4 178:17 182:8 189:19 192:7 194:6,9 197:17
understanding 17:18 76:24 97:17 115:10 130:1 140:6, 15 147:18 148:10 152:21 170:11 176:21
understood 15:14 88:2,12 92:25 105:15 115:4
undertake 151:15
undetected 88:25
unethical 135:21
unfair 126:20 194:24
unintelligible 128:4,22
unique 85:23 86:18

unit 10:11,12 32:10 49:7, 12,18 50:25 52:24 53:5,8 54:4,7,10 84:20 85:21,24 106:8 107:20 143:6 145:21 166:25 167:4,8
United 95:12,15,19
units 18:13 31:8 46:17 49:6 50:14,20 54:19 55:9,10,12 84:16 86:11,15 192:23
universal 153:19 187:22
universality 122:23
universally 73:12 98:19
university 9:25 11:13 22:8 78:19 152:14
unlike 72:8 167:18
unmet 54:16
unspecified 147:7
unstructured 117:15
up-to-date 9:4
usable 128:9
utility 116:18 118:4
utilizing 167:5
V
valid 177:5
validation 142:8
Van 26:10
variable 132:15,17,20,21 155:20 160:12 180:3,5 189:13
variables 179:25
variance 159:25 160:3,20
varies 42:18 84:16
vary 84:10
vast 156:24
venerable 117:13,19
Vermillion 3:10,13,24 4:6,11 5:8 7:22 60:20,25 62:17 63:21 67:22 77:11 82:6,20 83:1, 14,17 84:3,5,25 85:5,14,24 86:19 100:21 101:3 102:4, 7,15,21 103:12,25 104:9 105:16,20 106:8 107:11 108:8, 11,15 109:16,21 110:21 111:5,23 112:8,18 117:4,22 119:4,7,10,11,16 120:5,8,15,23 121:4

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151:4 153:13 155:5 163:1,11 166:21,22 168:3,9,25 171:4 174:13,16 175:10 176:22 177:6 181:7, 16 193:16 194:23 195:16 199:16 Vermillion's 85:2,11 101:8 102:22 103:18 110:8,14 176:1 vermin 176:11 version 137:18,20 versions 151:16 versus 3:11,12 4:6 58:10,11 62:7 66:14,24 70:2 71:24 72:4,15 87:7 107:4 127:11 144:11 167:21 169:16 178:8 video 4:2 200:15 view 12:12 63:15 97:23 99:1 110:19 112:16 122:18 130:9 144:4 161:12 viewed 142:8 views 12:10 99:22 128:7 142:5 violated 68:24 69:9 Virginia 53:24 54:20 vitae 43:20 133:5 vocal 139:4 voices 119:17 voluntarily 164:9,12 190:9,11 voluntary 168:14 volunteered 168:5,10 volunteers 168:4 169:5,6,9 vouch 124:24 125:5,8
W
waiting 17:16
waive 200:17
waiver 45:12
waivers 45:9
walked 172:10
Walter 126:8,10 154:16
Walters 126:2 131:9,20 168:2
wanted 76:21 83:1 168:2 173:21
warden 10:15 140:23 141:2
Washington 2:11 28:24

ways 18:8 91:25 98:14,15 173:17,19 195:2
WCU 108:21
weak 105:6
week 42:15,20,21,23 43:4 48:20 53:7 104:21
weeks 38:2
weigh 141:9
weight 63:13,18 159:6,13 160:17 162:14 164:2
weighted 160:11
weighting 160:15
weightings 159:15
welfare 97:6
well-being 178:19 179:23 186:13 188:14,15
Wellpath 33:3,5,12,14 39:14, 16,19
West 2:11
Wexford 31:22
Whichever 200:18
wholly 185:12
win 120:25
Winfield 46:7,9 51:6,10
Winterowd 134:13
withdrawal 174:5
withdrawn 176:15
withdrew 171:21
witnessed 191:12
Wolff 134:3,4
wondering 171:9
Word-of-mouth 22:23
words 21:14 120:17 143:9 147:20 169:20
work 11:20 12:14 20:15, 18,19 21:6 22:7 27:22 28:16 42:4,8, 11,13 43:22 44:1,12 45:10,13,14,17,25 46:12 47:16 50:1,19 51:9 52:1 53:11 54:18 55:8 56:1,12 57:9,18,22 59:11,17 61:12 63:4,25 70:12 77:10 78:15,17 79:15,19 100:1,15 124:13 127:6 131:1, 3 132:10 149:4 152:8,15 154:22 175:8 186:11 194:12 195:12

worked 46:1 50:14 51:5 55:10 156:21 192:23 194:15
working 20:16 32:9 38:9,15, 19 44:9,13,17 50:2, 13,24 53:4,23 54:18 62:6 77:17 90:3 131:10 183:25 190:19
works 5:21 157:16
workshop 30:24 32:1,5,24 33:4,19
workshops 23:1 30:19 31:25 32:13,17 33:24
world 123:17
worried 175:24
worry 181:12
worse 170:16
worth 109:10
woven 188:10
write 125:14
writing 25:10
writings 99:18
written 40:21,22 131:25 137:6 152:20
wrong 65:20 115:11
wrote 10:4 16:20 25:17 128:6
Y
year 16:22 37:20 42:22 46:5 49:17 51:1,4,22 77:15 90:16 136:15 146:18
years 27:2 30:9 46:1,3 49:20 57:2,4 58:6 73:2 75:25 90:9 149:19 168:22 169:17
yesterday 172:8
Z
Zinger 154:17,19 162:8,14, 23 163:3,13 164:5,8, 15,23 165:10,17

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 Case 1:15-cv-00605-RLY-TAB Document 87-3 Filed 04/06/15 Page 1 of 6 PageID #: 430

Case: 14-2327 DoNcOumNePnRt:E0C0E7D12E5N0T36IA18L DISPOFSilIeTdI:O0N4/06/2015 To be cited only in accordance with Fed. R. App. P. 32.1

Pages: 6

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604

Submitted February 23, 2015* Decided March 5, 2015

Before

DIANE P. WOOD, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 14-2327
JAY F. VERMILLION, Plaintiff-Appellant,

Appeal from the United States District Court for the Northern District of Indiana, Indianapolis Division.

v.

No. 3:11-CV-280 JVB

MARK E. LEVENHAGEN, et al., Defendants-Appellees.

Joseph S. Van Bokkelen, Judge.

O R D E R
Jay Vermillion, an Indiana prisoner, sued more than 20 Department of Correction employees under 42 U.S.C. § 1983 claiming that each of them retaliated for his invocation of the right to remain silent when questioned about the escape of fellow prisoners. At screening, see 28 U.S.C. § 1915A, the district court allowed Vermillion to
* After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P. 34(a)(2)(C).

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proceed only on a claim that his transfer to a “supermax” facility after the aborted interview violated his right to due process. The district court then granted summary judgment for the defendants on the ground that Vermillion had failed to exhaust his administrative remedies on that claim. On appeal Vermillion challenges this ruling as well as the district court’s dismissal of most of his claims at screening. We conclude that the defendants failed to establish their affirmative defense of failure to exhaust and that the district court should have allowed Vermillion to at least proceed with his additional claims arising from the same factual basis as the due-process claim.
In his second amended complaint, Vermillion alleges that on July 29, 2009, he was interviewed by Internal Affairs investigators after several fellow inmates had escaped from the Indiana State Prison (“ISP”). The interviewers accused him of being involved in the escape and threatened to pursue criminal charges, prompting Vermillion to stop answering their questions. Following this encounter, according to Vermillion, the three interviewers along with another investigator from Internal Affairs and five administrators from ISP, Westville Correctional Facility, and DOC headquarters retaliated for his silence by immediately placing him in punitive segregation at ISP and then on August 12, 2009, transferring him to Westville, where he was housed in the Maximum Control Segregation Unit. This transfer, Vermillion alleges, occurred after two of the administrators falsified documents to exaggerate his security classification. All nine of these employees are named defendants.
Vermillion claims that for more than three years after the transfer, he was confined in his segregation cell at Westville for at least 23 hours per day without personal interaction with other inmates, and during those years, five of the same nine employees—joined by many others—continued retaliating against him for invoking his right to remain silent. This retaliation, Vermillion alleges, ranged from intercepting his mail to mishandling the administrative hearings concerning a disciplinary ticket for trafficking contraband.
Vermillion’s operative complaint followed two earlier versions that the district court had rejected on the ground that he was trying to join unrelated claims against unrelated defendants. See FED. R. CIV. P. 18, 20(a)(2), 21; George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). After Vermillion’s third attempt, the district court dismissed the majority of his claims and defendants on the same ground, allowing him to proceed solely on a due-process claim against the five administrators allegedly involved in his transfer to Westville. See Wilkinson v. Austin, 545 U.S. 209, 223–25 (2005) (holding that transfer to “supermax” facility may implicate federally protected liberty interest if

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conditions there impose an “atypical and significant hardship”); Westefer v. Neal, 682 F.3d 679, 684–86 (7th Cir. 2012) (“Inmates transferred to a supermax prison are entitled to informal, nonadversarial due process.”). In this claim Vermillion alleges that he was transferred without “any notice, reason, or opportunity for rebuttal.” He protested the district court’s screening decision, arguing that his other claims are properly joined with this one. All of the claims, Vermillion insisted, arose from a broad conspiracy among the defendants to retaliate for his assertion of his Fifth Amendment right to remain silent.
The defendants remaining after the district court’s screening decision moved for summary judgment on the ground that Vermillion had not exhausted his administrative remedies on the due-process claim as required by the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a). The defendants asserted that an inmate who wants to challenge a transfer decision must submit a “classification appeal” on Form 9260 within ten days of receiving notice that he was being transferred, and Vermillion did not file a Form 9260 complaining about his transfer to Westville. Vermillion responded that prison regulations require a written appeal within ten days of receiving a “Classification Analyst’s decision,” not merely “notice” of transfer. And it is undisputed that Vermillion had never received a Classification Analyst’s decision either before or after being moved to Westville. Moreover, Vermillion added, even though he never received such a decision, he submitted a Form 9260 to administrators at Westville or DOC headquarters—not once but five times—and never received a response. The defendants replied that they had not found any of these forms in the prison records and insisted that Vermillion, by his own account, had sent them to the wrong staff members if he sent them at all.
The district court concluded that Vermillion failed to exhaust because he should have, but admittedly did not, submit a Form 9260 to the proper authorities within ten days of the transfer. The transfer itself, the court determined, gave Vermillion “notice” of the decision to reclassify and transfer him.
On appeal Vermillion first challenges the district court’s conclusion that he failed to exhaust administrative remedies, a decision we review de novo. See Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). He maintains that he did not receive a Classification Analyst’s decision to transfer him, and so his obligation to appeal under DOC regulations was never triggered. Under the PLRA, a prisoner must exhaust all available administrative remedies and follow administrative procedures—including time limits—before filing suit. See 42 U.S.C.

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1997e(a); Woodford v. Ngo, 548 U.S. 81, 85 (2006); Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005); Pozo v. McCaughtry, 286 F.3d 1022, 1024–25 (7th Cir. 2002). Failure to exhaust is an affirmative defense, so it was the defendants’ burden to establish the absence of disputed issues of material facts concerning whether Vermillion had an available administrative remedy that he failed to pursue. See Maddox, 655 F.3d at 720; Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011).
The DOC policy at issue does not require that an inmate file a “classification appeal” within ten days of transfer or receipt of notice of a transfer. Instead, the policy directs inmates to challenge a transfer by “[s]ubmitting a written appeal within ten (10) working days from the date that the offender received the Classification Analyst’s decision.” IDOC MANUAL OF POLICIES AND PROCEDURES, No. 01-04-101 (“Classification Appeals Policy”) § IV(J)(2)(b)(1) (emphasis added). The defendants do not dispute Vermillion’s declaration that he never received a decision from a Classification Analyst, nor did they produce evidence of such a decision. And neither did the defendants produce evidence—or even assert—that Vermillion had reason to know that the written policy does not mean what it says and that the ten-day appeal clock starts to run when the inmate is moved, with or without a Classification Analyst’s decision to appeal from. Cf. Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2005) (concluding that prisoner had exhausted available remedies by following unofficially modified procedures).
In short, the defendants have never contested Vermillion’s assertion that the DOC did not provide him with any decision that its regulations directed him to appeal—or that he could appeal—before filing this lawsuit. As Vermillion notes in his brief to this court, without a decision to review, he would have “no idea what the decision was, wh[ose] decision it was, or what an appeal could possibly be based upon.” Vermillion was required to exhaust only those remedies that were available to him, and “when prison officials prevent inmates from using the administrative process … , the process that exists on paper becomes unavailable in reality.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). The defendants cannot fault Vermillion for not doing more or proceeding differently than DOC procedures require. See Hurst v. Hantke, 634 F.3d 409, 411 (7th Cir. 2011); Dole, 438 F.3d at 811; Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). The defendants did not carry their burden of showing that no genuine issue of material fact exists concerning their defense of failure to exhaust. To the contrary, their inability to make that showing seems clear. Summary judgment on this ground was inappropriate.

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Vermillion next challenges the district court’s decision to dismiss all but the due-process claim from his second amended complaint. His operative complaint attributes everything that happened to him while in segregation at Westville to a broad conspiracy to retaliate for invoking the Fifth Amendment. The district court rejected as implausible Vermillion’s suspicion that so many DOC employees from two different facilities were out to get him. With that conclusion we readily agree. But even without a widespread conspiracy that would encompass all of Vermillion’s disparate claims against more than 20 defendants, some of his other claims can go forward. Other defendants are properly joined with the five administrators if the claims against the additional defendants arise from the same transaction or occurrence as Vermillion’s due-process claim against the administrators. See FED. R. CIV. P. 20(a)(2)(A).
Vermillion argues that his transfer violated his right to due process but also was initiated for the purpose of retaliating for his refusal to answer questions about the escaped prisoners. The Fifth Amendment gives a person the right “not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). This right applies in the prison disciplinary context, and prison officials may violate a prisoner’s right against self-incrimination if a prisoner’s silence alone results in punishment of the kind capable of compelling waiver of the right. See Minnesota v. Murphy, 465 U.S. 420, 434 (1984); Baxter v. Palmigiano, 425 U.S. 308, 317 (1976); LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995). Although not all of his claims can be linked to his assertion of this right, Vermillion plausibly alleges that more than just the five administrators were involved in retaliating against him for his refusal to talk to the Internal Affairs investigators. Vermillion claims that his placement in punitive segregation at ISP, his transfer to the Maximum Control Segregation Unit at Westville, and the alleged falsification of documents to exaggerate his security classification and keep him confined in segregation were punishments aimed at retaliating against him because he asserted his right to silence. Because this claim points to joint conduct by the five administrators and four Internal Affairs investigators and would invariably rely on some of the same facts as his due-process claim relating to the transfer, Vermillion properly joined the defendants allegedly responsible.
Once Vermillion properly joined parties under Federal Rule of Civil Procedure 20, Rule 18 allows him to join all claims he has against each defendant. See Intercon Research Assocs., Ltd. v. Dresser Indus., Inc., 696 F.2d 53, 57 (7th Cir. 1982) (noting that “joinder of claims under Rule 18 becomes relevant only after the requirements of

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Rule 20 relating to joinder of parties has been met with respect to the party against whom the claim is sought to be asserted”); 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1585 (3d ed. 2010) (“Once parties are properly joined … as to a particular claim, additional claims, whether they are related or unrelated or they are by or against all or less than all of the parties may be joined under Rule 18(a).”). Defendants Levenhagen, Morton, Brennan, Mize, and Nowatzke remained in the case after screening because Vermillion’s due-process claim was asserted against them. The addition of his self-incrimination retaliation claim adds defendants Plank, Buss, Whelan, and Carrasco. Vermillion therefore properly joined all claims he had against these defendants. We note, however, that even though these claims are properly joined, they do not necessarily have to proceed together. Under Rule 21 the district court has the discretion to sever any claims that are “discrete and separate” in the interest of judicial economy and to avoid prejudice. See Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 442 (7th Cir. 2006); Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016 (7th Cir. 2000); Otis Clapp & Son, Inc. v. Filmore Vitamin Co., 754 F.2d 738, 743 (7th Cir. 1985). We leave these considerations for the district court to address in the first instance.
Vermillion also argues that the district court erred in dismissing his state-law claims. Because the district court allowed only the due-process claim to proceed, the court did not separately analyze Vermillion’s supplemental claims. Our decision here reinstates all claims, federal and state, against the nine defendants who are properly joined in Vermillion’s lawsuit, and on remand the district court will have the opportunity to decide whether to exercise supplemental jurisdiction over the state-law claims against these defendants.
Vermillion finally argues that his request to transfer his case to the Southern District of Indiana should have been granted. As Vermillion is now imprisoned in that district, on remand the district court may, in its discretion, decide to grant the request. See 28 U.S.C. § 1404; Research Automation, Inc. v. Schrader–Bridgeport Int’l, Inc., 626 F.3d 973, 978–79 (7th Cir. 2010).
We have reviewed Vermillion’s remaining arguments and conclude that none has merit. Accordingly, the district court’s judgment is VACATED insofar as it dismisses any claim against defendants Levenhagen, Morton, Brennan, Mize, Nowatzke, Plank, Buss, Whelan, and Carrasco, and as to those defendants, the case is REMANDED for further proceedings consistent with this decision. In all other respects, the judgment is AFFIRMED.

 
  
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

JAY F. VERMILLION,
Plaintiff,
v.
WILLARD PLANK, CHARLES WHELAN, DAWN BUSS, RALPH CARRASCO, DAWN WALKER, BESSIE LEONARD, MARK LEVENHAGEN, MARK BRENNAN, SALLY NOWATZKE, LARRY WARG, CHARLES PENFOLD, BRETT MIZE, HOWARD MORTON, CRAIG TRAVIS, ERNESTINE COLE, CELIA BOBSON, LINDA LEONARD, DAVID DOMBROWSKY, DOUG BARNES, ROBERT JOHNSON, DAVID LEONARD, STEPHANIE ROTHENBERG, INDIANA DEPARTMENT OF CORRECTIONS, and GARY BRENNAN,
Defendants.

Case No. 3:11-CV-280 JVB

ORDER Jay Vermillion, a prisoner confined at the Westville Control Unit (“WCU”) proceeding pro se, is now on his Second Amended Complaint under 42 U.S.C. § 1983, which alleges violations of his federally protected rights by the Indiana Department of Corrections (“IDOC”), two deputy attorneys general and twenty-one officials employed at the IDOC central office, WCU, and Indiana State Prison (“ISP”). The Court struck his previous two attempts but gave leave “to file an amended complaint containing only a single claim or related claims.” (E.g., DE 8 at 3.) Pursuant to 28 U.S.C. § 1915A, this Court must review the merits of a prisoner complaint against governmental entities or officials and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) requires a district court to “question”
and “reject” any complaint that contains unrelated claims against separate defendants:
A buckshot complaint that would be rejected if filed by a free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions—should be rejected if filed by a prisoner. George did not make any effort to show that the 24 defendants he named had participated in the same transaction or series of transactions or that a question of fact is “common to all defendants”.
George v. Smith, 507 F.3d at 607.
The district court did not question George’s decision to join 24 defendants, and approximately 50 distinct claims, in a single suit. It should have done so. The controlling principle appears in Fed. R. Civ. P. 18(a): “A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.” Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass that this 50-claim, 24-defendant suit produced but also to ensure that prisoners pay the required filing fees . . . .
Id. at 607.
More recently, the Seventh Circuit criticized a district court for disregarding George and
reemphasized its concerns regarding “multi-claim, multi-defendants suits” and their potential as
an end-run around filing fees under the Prison Litigation Reform Act. Owens v. Hinsley, 635
F.3d 950, 952 (7th Cir. 2011) (internal quotation marks omitted). The court held that
“[c]omplaints like this one . . . should be rejected, George, 507 F.3d at 607, either by severing
the action into separate lawsuits or by dismissing improperly joined defendants.” Id.
The Second Amended Complaint, like its predecessors, would create a multi-claim,
multi-defendant suit involving events that occurred at two different facilities over a period of
years. Plaintiff seeks to justify its scope by stating that “as a result of [his] having engaged in the
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constitutionally protected activity of terminating . . . questioning . . . , the herein-named defendants retaliated against [him], and conspired with one another to retaliate against [him], by implementing the continuous and ongoing chronological series of inextricably related transactions and occurrences . . . .” (DE 14 at 3.)
Rhetorical paragraph A of the Second Amended Complaint asserts that when Willard Plank, Dawn Buss, and Charles Whelan questioned Plaintiff on July 29, 2009, about an escape by other inmates at the ISP, Plaintiff “exercised [his] constitutionally protected right to terminate their questioning.” (DE 14 at 3.) He contends that all of the Defendants conspired to retaliate against from him from July 29, 2009, to the present, for exercising his right to remain silent on this occasion. (DE 14.)
Plaintiff asserts his conspiracy claim under Section 1985(3), which deals with racially motivated conspiracies to interfere with civil rights. To prevail on this claim, he needs “(1) an express or implied agreement among defendants to deprive [him] of his . . . constitutional rights and (2) actual deprivations of those rights in the form of overt acts in furtherance of the agreement.” Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988).(“To state a cause of action under § 1985(3), a plaintiff must allege (1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws or equal privileges and immunities under the law; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff’s person or property, or a deprivation of a right or privilege of a citizen of the United States.” Traggis v. St. Barbara’s Greek Orthodox Church, 851 F.2d 584, 586-87 (2d Cir. 1988).)
In § 1985 cases, vague and conclusory allegations of a conspiracy cannot survive. Amundsen v. Chi. Park Dist., 218 F.3d 712, 718 (7th Cir. 2000); Sampson v. Yellow Cab Co., 55 F. Supp. 2d 867, 869 (N.D.Ill. 1999). Where a complaint asserts that the defendants conspired to
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deny the plaintiff his constitutional rights, that claim must be “supported by some factual allegations suggesting a ‘meeting of the minds.’” Amundsen, 218 F.3d at 718 (quoting Kunick v. Racine County, Wisc., 946 F.2d 1574, 1580 (7th Cir. 1991)). Thus, a § 1985 plaintiff:
must satisfy the following: (1) allege the existence of an agreement; (2) if the agreement is not overt, “the alleged acts must be sufficient to raise the inference of mutual understanding” (i.e., the acts performed by the members of a conspiracy “are unlikely to have been undertaken without an agreement”); and (3) “a whiff of the alleged conspirators’ assent . . . must be apparent in the complaint.” Id. (quoting Kunick, 946 F.2d 1574, 1580 ). Plaintiff does not allege a class-based purpose on the part of the defendants, which is an element of a § 1985 claim. See Traggis, 851 F.2d at 586. Moreover, his conspiracy allegations are, at best, conclusory. Plaintiff alleges that two deputy attorneys general and more than twenty IDOC officials at two separate facilities and the central office conspired to retaliate against him over a period of three years for exercising his right to remain silent on one occasion in an ISP internal investigation that apparently never resulted in a criminal prosecution. The alleged acts in furtherance of the conspiracy “must be sufficient to raise the inference of mutual understanding” (i.e., the acts performed by the members of a conspiracy “are unlikely to have been undertaken without an agreement”). Amundsen, 218 F.3d at 718. Nothing in the Second Amended Complaint suggests a plausible “whiff of the alleged conspirators’ assent,” and nothing in Plaintiff’s submissions suggest that Defendants’ actions were unlikely to have been undertaken in the absence of an agreement. The few facts stated in the Second Amended Complaint also do not show a class-based animus. Even giving Plaintiff the benefit of the inferences to which he is entitled at the pleadings stage, he has not met the pleading requirements for a § 1985(3) complaint. Moreover, Plaintiff’s conspiracy and retaliation claims are simply not plausible. The
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“plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotation marks, alteration, and citation omitted).
This Court concludes that it is not plausible that two deputy attorneys general and twenty-one officials at the IDOC central office and two separate facilities conspired to retaliate against Plaintiff over a period of years for invoking his Fifth Amendment right to refuse to answer questions on a single occasion that did not even result in a criminal prosecution. Accordingly, Plaintiff may not use this alleged conspiracy to justify avoiding George’s prescription against bringing multiple unrelated claims against separate defendants.
A prisoner’s multi-claim, multi-defendant complaint “should be rejected, either by severing the action into separate lawsuits or by dismissing improperly joined defendants.” Owens v. Hinsley, 635 F.3d at 952 (citation omitted). Severing Vermillion’s multiple claims into several separate lawsuits, some of which would state no claim upon which relief could granted, would obligate him to pay many filing fees. Instead, the Court will allow Vermillion to proceed on one claim in this action, and will dismiss the improperly joined defendants and claims, giving him the option to file additional complaints if he wishes.
The centerpiece of the Second Amended Complaint appears to be the claim, found in rhetorical paragraph E, where he alleges that on August 12, 2009, “without providing [him] with any notice, reason, or opportunity for rebuttal, the defendants transferred [Plaintiff] to the
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W.C.U. Super Max facility” in violation of Plaintiff’s rights to due process. (DE 14 at 4–5.) In rhetorical paragraph F, Plaintiff alleges that at about the same time, Defendants Brennan and Nowatzke improperly increased Plaintiff’s security classification so that he could be sent to the WCU. (Id. at 5.)
Vermillion alleges that the WCU is a “supermax” facility with harsh and restrictive conditions of confinement. “Supermax facilities are maximum-security prisons with highly restrictive conditions, designed to segregate the most dangerous prisoners from the general prison population.” Wilkinson v. Austin, 545 U.S. 209, 213 (2005). “The Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S. at 221–22 (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). But where the conditions of special confinement are restrictive enough in relation to those of ordinary prison life, the circumstances may constitute a state policy or regulation that gives rise to a constitutionally protected liberty interest in avoiding transfer. Id. at 223–24.
In Wilkinson, the Supreme Court considered whether placement in an Ohio supermax facility, the Ohio State Penitentiary (“OSP”), with many of the same harsh conditions as Vermillion alleges exist at the WCU, implicated the due-process clause. The Supreme Court concluded that the conditions at the OSP constituted an atypical or significant hardship on inmates in relation to the ordinary incidents of prison life, requiring that prisoners be afforded due process before being transferred there. Id. at 224. On the other hand, in some instances, the process afforded to inmates before placement in a supermax facility need not be adversarial and may be informal. Id. at 228–29.
If placement in the WCU constitutes an “atypical and significant hardship,” then Vermillion possesses a liberty interest in not being placed in the WCU without due process. With
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the benefit of the inferences to which Plaintiff is entitled at the pleadings stage, his allegations that Defendants transferred him to the WCU without providing due process are a plausible Fourteenth Amendment due-process claim under the standards set forth in Wilkinson v. Austin.
On April 24, 2012, Plaintiff filed a Notice of Related Action. (DE 16.) In it, Plaintiff argues the Local Rules mandate transfer of this case to Chief Judge Philip Simon because this case, Plaintiff says, is related to a habeas petition that was before Judge Simon in cause number 3:10-CV-119. Regardless of whether the two cases “grow[] out of the same transaction or occurrence,” so as to qualify as related under Local Rule 40.1(d), subparagraph (e) calls for transfer only where the earlier case remains pending. Judge Simon’s case is no longer pending. On March 16, 2011, Judge Simon dismissed the habeas petition and the Clerk entered judgment the following day. Therefore, this case will not be transferred to Judge Simon at this time.
For the foregoing reasons, pursuant to 28 U.S.C. § 1915A(b), the Court: (1) DENIES Plaintiff leave to proceed against multiple defendants on unrelated claims in his Second Amended Complaint; (2) GRANTS Plaintiff leave to proceed against Defendants Mark Levenhagen, Howard Morton, Gary Brennan, Bret Mize, and Sally Nowatzke in their individual capacities for damages on his Fourteenth Amendment claim in paragraphs E and F of his Second Amended Complaint that they transferred him from the ISP to the WCU without affording him due process; and (3) DISMISSES all other claims and DISMISSES Defendants Willard Plank, Charles Whalen, Dawn Buss, Ralph Carrasco, Dawn Walker, Bessie Leonard, Larry Warg, Charles Penfold, Craig Travis, Ernestine Cole, Celia Bobson, Linda Leonard, David Dombrowsky, Doug
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Barnes, Robert Johnson, David Leonard, Stephanie Rothenberg, and the IDOC, pursuant to 28 U.S.C. § 1915A. This dismissal is without prejudice to Plaintiff’s right to bring those claims in other actions.
(4) The Court further ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Defendants Levenhagen, Morton, Brennan, Mize and Nowatzke respond to the Second Amended Complaint, as provided under the Federal Rules of Civil Procedure; and
(5) DIRECTS the Marshals Service to effect service of process on Defendants Levenhagen, Morton, Brennan, Mize, and Nowatzke on Plaintiff’s behalf, and DIRECTS the Clerk’s Office to ensure that a copy of this Order is served on them along with the summons and Second Amended Complaint.
SO ORDERED on May 8, 2012. s/ Joseph S. Van Bokkelen JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

JAY F. VERMILLION,
Plaintiff,
v.
WILLARD PLANK, CHARLES WHELAN, DAWN BUSS, RALPH CARRASCO, DAWN WALKER, BESSIE LEONARD, MARK LEVENHAGEN, MARK BRENNAN, SALLY NOWATZKE, LARRY WARG, CHARLES PENFOLD, BRETT MIZE, HOWARD MORTON, CRAIG TRAVIS, ERNESTINE COLE, CELIA BOBSON, LINDA LEONARD, DAVID DOMBROWSKY, DOUG BARNES, ROBERT JOHNSON, DAVID LEONARD, STEPHANIE ROTHENBERG, INDIANA DEPARTMENT OF CORRECTIONS, and GARY BRENNAN,
Defendants.

Civil Action No. 3:11-CV-280 JVB

ORDER Jay Vermillion, a prisoner confined at the Westville Control Unit (“WCU”), sued under 42 U.S.C. § 1983 on a variety of claims that many Indiana Department of Correction (“IDOC”) officials violated his federally protected rights in numerous respects. The Court struck the first complaint and allowed Plaintiff “to file an amended complaint containing only a single claim or related claims.” (DE 8 at 3.) Plaintiff did file an amended complaint, but again sought to proceed against numerous defendants on unrelated claims. The Court then struck the amended complaint, and ordered Vermillion to file a second amended complaint “containing only a single claim or related claims arising at the same facility.” (DE 13 at 3.) Plaintiff’s Second Amended Complaint names as defendants the IDOC, two deputy

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attorneys general and twenty-one officials employed at the IDOC central office, at the WCU, and at the Indiana State Prison (“ISP”). Like its predecessors, the Second Amended Complaint attempts to initiate a multi-claim, multi-defendant suit, involving events that occurred at two different facilities over a period of years. Rhetorical paragraph A asserts that when Investigators Willard Plank, Dawn Buss, and Charles Whelan questioned Vermillion on July 29, 2009, about an escape by other inmates at the ISP, he “exercised [his] constitutionally protected right to terminate their questioning of [him] in their investigation of [the] escape.” (DE 14 at 3.) Vermillion contends that all of the Defendants conspired to retaliate against from him from July 29, 2009, to the present, for exercising his Fifth Amendment right to remain silent on this occasion. (Id.)
The Court reviewed the Second Amended Complaint. Relying on George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) and Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011), the Court granted leave to proceed for damages only against Defendants Mark Levenhagen, Howard Morton, Mark Brennan, Bret Mize, and Sally Nowatzke in their individual capacities on Plaintiff’s Fourteenth Amendment due process claim alleged in paragraphs E and F. That claim is that the Defendants transferred him from the ISP to the WCU without affording him due process. The Court dismissed all other claims Plaintiff attempted in the Second Amended Complaint, without prejudice to his right to replead them in other complaints. This case is now before the Court on Plaintiff’s Motion to Reconsider, Alter and/or Amend Judgment, in which Plaintiff asks the Court to let him proceed on all of his claims against all of the Defendants named in the Second Amended Complaint.
The Second Amended Complaint alleges that all its disparate claims are related because
2

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all the Defendants conspired to retaliate against Plaintiff. On pages 2 through 7 of the Motion to Reconsider, Plaintiff attempts to distinguish his complaint from the one in George. He concedes that his Second Amended Complaint named multiple defendants on multiple claims, but reasserts that his allegations were tied together by the theory that all Defendants conspired to retaliate against him. This would be a concerted effort by nearly two dozen state officials at different facilities, the IDOC Central Office, and the Indiana Attorney General’s office, all inspired by Plaintiff’s invocation of his Fifth Amendment right to refuse to answer questions during a disciplinary investigation in July 2009.
Plaintiff alleged in the Second Amended Complaint that this violated 42 U.S.C. 1985(2) and (3), but the Court screened out these claims for improper pleading. (DE 17 at 3–4.) The instant Motion to Reconsider concedes that Plaintiff stated no claim under §§ 1985 and 1986, and specifically withdraws those claims. (DE 19 at 8.) Now, however, Plaintiff says he wants to assert a general conspiracy claim under § 1983. (DE 19 at 9.)
And while the court did state, as noted above, that nothing in my Second Amended Complaint suggests a plausible whiff of the alleged conspirators’ assent, and that nothing in my submissions suggest that the defendants’ actions were unlikely to have been undertaken in the absence of an agreement, at this juncture I can only assume that this of the court’s assessments was exclusive to these secondary allegations of conspiracy under Sec. 1985, and for that reason, additional “screening” is necessary. (Id.) Plaintiff’s assumption is wrong. It is as true of the § 1983 claim as it is of the claim under § 1985 that nothing in the Second Amended Complaint suggested a plausible whiff of an agreement, or that the Defendants’ actions were unlikely to have been undertaken without an agreement. Even before Twombly and Iqbal, “mere conclusory allegations of a conspiracy [were] insufficient to survive a motion to dismiss.” Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998).
3

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Plaintiff emphasizes in his Motion to Reconsider that when screening a prisoner complaint, “a judge must accept as true all of the factual allegations contained in the complaint” (DE 19 at 4.) He posits that because he alleged in his complaint that all of the actions by all of the nearly two dozen individual Defendants were “the result of a continuous and ongoing series of inextricably related transactions and occurrences,” (id.) the Court was required to accept his conspiracy claims. The Court fulfilled its obligation to give Plaintiff the benefit of the inferences to which he was entitled on his individual factual claims as to what the individual defendants did.
But Plaintiff has not raised plausible inferences of assent or agreement, whether overt or tacit. See Amundsen v. Chi. Park Dist., 218 F.3d 712, 718 (7th Cir. 2000) (explaining requirements). As this Court ruled in its screening order, nothing in the Second Amended Complaint suggests a plausible “whiff of the alleged conspirators’ assent,” and nothing in Plaintiff’s submissions suggests Defendants’ actions were unlikely to have been undertaken in the absence of an agreement. Even giving Plaintiff the benefit of the inferences to which he is entitled at the pleadings stage, his Second Amended Complaint does not meet the requirements for a § 1983 conspiracy claim. The conspiracy and retaliation claims are simply implausible; the “plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Id. at 555.
Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has
4

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alleged – but it has not shown – that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (quotation marks, alteration, and citations omitted).
“[I]t is not plausible that two deputy attorneys general and twenty-one officials at the IDOC central office and two separate facilities conspired to retaliate against Vermillion over a period of years for invoking his Fifth Amendment right to refuse to answer questions on a single occasion that did not even result in a criminal prosecution.” (DE 17 at 5.) Plaintiff argues this finding “has no factual basis and it amounts to nothing more than an articulation of the court’s arbitrary refusal to acknowledge and/or accept the fact that IDOC officials have conducted themselves in the manner in which I have alleged.” (DE 19 at 12.)
The Court has indeed accepted, for present purposes, the factual allegations of what the Defendants did, however whether a grand conspiracy was their motivation is another matter that the Court need not, and does not accept, without more particularity. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense.” Id.
It is implausible that so many state actors in so many locations over such a length of time conspired to retaliate against Plaintiff for such a small act as invoking the Fifth Amendment during an internal investigation. This is the conclusion compelled by the Court’s experience and common sense. Accordingly, the Court will not reinstate Vermillion’s claim that all of the Defendants conspired to retaliate against him for exercising his Fifth Amendment right to remain
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silent on July 29, 2009. The screening order did allow Plaintiff to proceed on one individual claim — that some
of the Defendants violated his Fourteenth Amendment due process rights when they transferred him from the ISP to the WCU, a super-max facility. In his Motion to Reconsider, Plaintiff appears to suggest that this Court selected the wrong individual claim on which to allow him to proceed. (DE 19 at 18.) While it will not grant the Plaintiff’s request in his Motion to Reconsider that he be allowed to proceed on all of the claims in his Second Amended Complaint, the Court will let Plaintiff select another claim to proceed on in this case, if he wishes, subject to all other requirements of law. The Court cautions Plaintiff that he may select only a single claim or related claims arising at the same facility, and that the claim or claims must be plausible.
For the foregoing reasons, the Court: (1) GRANTS Plaintiff’s Motion to Reconsider, Alter and/or Amend Judgment (DE 19) in part and DENIES it in part; (2) DENIES Plaintiff’s request to reinstate his claim that all Defendants conspired to retaliate against him for invoking the Fifth Amendment during an ISP internal investigation in July 2009, and his request to proceed on all of his individual claims against all of the Defendants named in his Second Amended Complaint; (3) GRANTS Plaintiff leave to select another individual claim or related claims and Defendant or set of Defendants upon which to proceed in this case if he wishes; and (4) AFFORDS Plaintiff until December 7, 2012, to advise the Court whether he wishes to continue to proceed in this case on his claim that some IDOC officials violated his Fourteenth Amendment due process rights when they transferred him from the ISP to the WCU, or whether
6

Case 1:15-cv-00605-RLY-TAB Document 33 Filed 11/05/12 Page 7 of 7 PageID #: 167 he wishes to proceed against a Defendant or set of Defendants on one of the other claims presented in the Second Amended Complaint. If Plaintiff does not respond by December 7, 2012, the action will proceed only upon the claim regarding the alleged violation of Plaintiff’s Fourteenth Amendment due process rights through his transfer from the ISP to the WCU. SO ORDERED on November 5, 2012. s/ Joseph S. Van Bokkelen JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
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 Case 1:15-cv-00605-RLY-TAB Document 63 Filed 03/19/14 Page 1 of 4 PageID #: 337

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

JAY F. VERMILLION,

Plaintiff, v.

Civil Action No. 3:11-CV-280 JVB

WILLARD PLANK et al.,

Defendants.

OPINION AND ORDER

Jay F. Vermillion, a prisoner, is proceeding pro se on a claim that he was transferred to a

different correctional facility in violation of his due process rights. (DE 17.) Defendants move

for summary judgment on the ground that Vermillion did not exhaust his administrative remedies

before filing suit. (DE 53.)

Summary judgment must be granted when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

issue of material fact exists when “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes

over facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Id. To determine whether a genuine issue of material

fact exists, the court must construe all facts in the light most favorable to the non-moving party

and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt, 606 F.3d 355, 358

(7th Cir. 2010). Nevertheless, a party opposing a properly supported summary judgment motion

may not rely merely on allegations or denials in his or her own pleading, but rather must

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“marshal and present the court with the evidence she contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
Under the Prison Litigation Reform Act (“PLRA”), prisoners are prohibited from bringing an action in federal court with respect to prison conditions until “such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (observing that under § 1997e(a) an “inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues”). The Seventh Circuit Court of Appeals has taken a “strict compliance approach to exhaustion.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Thus, “[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). “[U]nless the prisoner completes the administrative process by following the rules the state has established for that process, exhaustion has not occurred.” Id. at 1023. Failure to exhaust is an affirmative defense on which the defendant bears the burden of proof. Dole, 438 F.3d at 809.
Here, Vermillion was granted leave to proceed on a claim that he was transferred from Indiana State Prison (“ISP”) to the Westville Control Unit (“WCU”), a state “supermax” facility, without adequate due process protections. See Wilkinson v. Austin, 545 U.S. 209, 220 (2005) (“inmates have a protected liberty interest in avoiding assignment” at state supermax facility); Westefer v. Neal, 682 F.3d 679, 684 (7th Cir. 2012) (“Inmates transferred to a supermax prison are entitled to informal, nonadversarial due process.”). The record reflects that Vermillion was transferred on August 12, 2009. (DE 17 at 5–6; DE 61 at 9.) As of that date, the Indiana Department of Correction (“IDOC”) had an administrative review process in place whereby an
2

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inmate could challenge a transfer from one correctional facility to another. (DE 53-1, Hendrix Decl. ¶ 9; DE 53-1, IDOC Manual of Policies and Procedures, No. 01-04-101 (“Classification Appeals Policy”) § IV(J)(2).) Under that process, an inmate must file a classification appeal within ten days of receiving notice of the transfer. (DE 53-1, Hendrix Decl. ¶ 10.) A record is kept of all classification appeals, and those records show that Vermillion did not file a classification appeal challenging his transfer from ISP to WCU. (Id. ¶¶ 15-16.) Relying on this omission, Defendants argue that Vermillion did not properly exhaust his available administrative remedies before filing suit. (DE 54.)
In his response, Vermillion does not dispute that an administrative process was in place that allowed him to appeal a facility transfer. (See DE 61 at 9.) He also does not dispute that he did not file an appeal of his transfer to WCU. (Id.) Instead, he argues that he was not given proper written notice of his transfer, and thus his obligation to file an appeal was never “triggered.” (Id. at 8–9.) This argument is unavailing. Even if Vermillion did not get written notice of his transfer, and even if such notice was required by IDOC rules, he was obviously aware of the transfer as of the date he was actually transferred. He could requested administrative review of the transfer decision within ten days of that date, but failed to avail himself of that remedy.
Vermillion also points to appeals he filed after he was assigned to Department Wide Administrative Segregation (“DWAS”), or long-term administrative segregation, in October 2009, while he was housed at WCU. (See DE 61-2.) However, his assignment to long-term administrative segregation in October 2009 is a separate issue from his transfer to WCU two months earlier, and the transfer is the event he is challenging in this lawsuit. Documents he filed
3

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in November and December 2009 were not timely under the prison policy for challenging a

transfer that occurred in August 2009. (DE 53-1, Classification Appeal Policy § IV(J)(2); DE 53-

1, Hendrix Decl. ¶ 10.) Furthermore, the process for appealing a placement in DWAS is different

from the process for appealing a facility transfer; among other things, they involve different

decision-makers. (See DE 53-1, Classification Appeal Policy § IV(J)(2); DE 53-1, Hendrix Decl.

¶ 19.) A request for review of a facility transfer must be submitted to the IDOC Director of

Classification (DE 53-1, Hendrix Decl. ¶ 11), whereas Vermillion sent the appeal of his

placement in DWAS to the IDOC Deputy Commissioner of Operations. (See DE 61-2 at 3.) This

did not comply with prison administrative requirements for appealing a facility transfer. See

Pozo, 286 F.3d at 1025 (explaining that, to properly exhaust, a prisoner must file documents “in

the place, and at the time, the prison’s administrative rules require”). Accordingly, Vermillion

did not exhaust all available administrative remedies before filing suit.

This action is therefore subject to dismissal. See 42 U.S.C. § 1997e(a). It is not clear that

Vermillion has the ability to exhaust at this point, but because the state could allow him to cure

his omission, the dismissal will be without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th

Cir. 2004) (“[A]ll dismissals under § 1997e(a) should be without prejudice.”).

For these reasons, Defendants’ motion (DE 53) is GRANTED, and this action is

DISMISSED WITHOUT PREJUDICE pursuant to 42 U.S.C. § 1997e(a).

SO ORDERED on March 19, 2014.

s/ Joseph S. Van Bokkelen JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE

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 Case 1:15-cv-00605-RLY-TAB Document 96 Filed 05/08/15 Page 1 of 44 PageID #: 473
FILED
5:13 pm, May 07, 2015 U.S. DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Laura A. Briggs, Clerk

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 Case 1:15-cv-00605-RLY-TAB Document 214 Filed 05/22/18 Page 1 of 28 PageID #: 1367

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAY F. VERMILLION,
Plaintiff,
v.
MARK E. LEVENHAGEN, SALLY NOWATZKE, BRETT MIZE, HOWARD MORTON, GARY BRENNAN, WILLARD PLANK, DAWN BUSS, CHARLES WHELAN, RALPH CARRASCO,
Defendants.

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No. 1:15-cv-00605-RLY-TAB

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Entry Discussing Partial Motion for Summary Judgment
For the reasons explained below, the defendants’ motion for partial summary judgment,
dkt [196], is granted in part and denied in part.
I. Introduction
This action was transferred from the Northern District of Indiana to this district following
the Seventh Circuit’s Mandate issued April 6, 2015. The Mandate summarized Vermillion’s claims
as follows.
Vermillion alleges that on July 29, 2009, he was interviewed by Internal Affairs investigators after several fellow inmates had escaped from the Indiana State Prison (“ISP”). The interviewers accused him of being involved in the escape and threatened to pursue criminal charges, prompting Vermillion to stop answering their questions. Following this encounter, according to Vermillion, the three interviewers along with another investigator from Internal Affairs and five administrators from ISP, Westville Correctional Facility, and DOC headquarters retaliated for his silence by immediately placing him in punitive segregation at ISP and then on August 12, 2009, transferring him to Westville, where he was

Case 1:15-cv-00605-RLY-TAB Document 214 Filed 05/22/18 Page 2 of 28 PageID #: 1368
housed in the Maximum Control Segregation Unit. This transfer, Vermillion alleges, occurred after two of the administrators falsified documents to exaggerate his security classification. All nine of these employees are named defendants.
Vermillion claims that for more than three years[1] after the transfer, he was confined in his segregation cell at Westville for at least 23 hours per day without personal interaction with other inmates, and during those years, five of the same nine employees—joined by many others—continued retaliating against him for invoking his right to remain silent. This retaliation, Vermillion alleges, ranged from intercepting his mail to mishandling the administrative hearings concerning a disciplinary ticket for trafficking contraband.
Mandate at p. 2
Vermillion argues that his transfer violated his right to due process but also was initiated for the purpose of retaliating for his refusal to answer questions about the escaped prisoners. The Fifth Amendment gives a person the right “not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). This right applies in the prison disciplinary context, and prison officials may violate a prisoner’s right against self-incrimination if a prisoner’s silence alone results in punishment of the kind capable of compelling waiver of the right. See Minnesota v. Murphy, 465 U.S. 420, 434 (1984); Baxter v. Palmigiano, 425 U.S. 308, 317 (1976); LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995). Although not all of his claims can be linked to his assertion of this right, Vermillion plausibly alleges that more than just the five administrators were involved in retaliating against him for his refusal to talk to the Internal Affairs investigators. Vermillion claims that his placement in punitive segregation at ISP, his transfer to the Maximum Control Segregation Unit at Westville, and the alleged falsification of documents to exaggerate his security classification and keep him confined in segregation were punishments aimed at retaliating against him because he asserted his right to silence. Because this claim points to joint conduct by the five administrators and four Internal Affairs investigators and would invariably rely on some of the same facts as his due-process claim relating to the transfer, Vermillion properly joined the defendants allegedly responsible.
Case No. 14-2327, Mandate at dkt. 87-3 at p. 5.
1 The summary judgment record reflects that Vermillion was in solitary confinement for 1,513 days or more than four years.
2

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Following the transfer of this action to this district, Vermillion was instructed to file a Third
Amended Complaint. That pleading was screened and the following claims were permitted to
proceed consistent with the Mandate. See dkt. 97.
Claim 1. Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, and Gary Brennan placed Vermillion in punitive segregation at ISP, transferred him to the Maximum Control Segregation Unit (the “Westville Control Unit” or “WCU”) at Westville, and confined him in segregation in retaliation for his assertion of his right to silence during an interview by internal affairs investigators.
Claim 2. Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, and Garry Brennan placed Vermillion in the Westville Control Unit for 1,513 days in violation of his right to be free of cruel and unusual punishment.
Claim 3. Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, Mark Levenhagen, and Brett Mize transferred Vermillion from the ISP to department-wide administrative segregation at the Westville Control Unit in violation of his due process rights.
Claim 4. Howard Morton confiscated Vermillion’s certified legal mail in violation of his due process and First Amendment rights.
The defendants seek summary judgment as a matter of law on all but the claim against Levehagen
and Mize related to Vermillion’s transfer from the ISP to department-wide administrative
segregation at Westville in violation of his due process rights. See claim 3. The defendants argue
that they are entitled to judgment as a matter of law as to all other claims.
Given the age of the case and the number of claims and defendants the evidentiary record
is relatively sparse. In support of summary judgment, the defendants present Vermillion’s
deposition (including 30 pages of exhibits), a two page declaration from Charles Whelan, and an
audio recording of Vermillion’s July 29, 2009, interview with internal affairs officers. Vermillion
opposes summary judgment. In addition to his Third Amended Complaint, which was signed under
3

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penalty of perjury, he presents fourteen exhibits which all appear to be IDOC records.2 The defendants replied and Vermillion submitted a surreply. The motion for summary judgment is now fully briefed.
II. Summary Judgment Standard A motion for summary judgment asks the court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion can result in the movant’s fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e). In deciding a motion for summary judgment, the court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the
2 The Seventh Circuit has held that a complaint “is the equivalent of an affidavit for summary judgment purposes” when it is verified under penalty of perjury and based on personal knowledge. Locke v. Haessig, 788 F.3d 662, 665 (7th Cir. 2015) (citing Devbrow v. Gallegos, 735 F.3d 584, 587 (7th Cir. 2013).
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suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, a party must show the court what evidence it has that would convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not required to “scour every inch of the record” for evidence that is potentially relevant to the summary judgment motion before them. Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th Cir. 2017). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
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III. Material Facts A. Parties
1. Willard Plank was, at all times relevant to the allegations made against him in the Third Amended Complaint, an employee of the Indiana Department of Correction (“IDOC”), Division of Internal Affairs as Chief Investigator. Other than his participation in the July 29, 2009, interview, Vermillion has no information regarding Plank’s involvement in the circumstances at issue in this case.
2. Dawn Buss was, at all times relevant to the allegations made against her in the Third Amended Complaint, an IDOC employee, Division of Internal Affairs as Deputy Chief. Other than her participation in the July 29, 2009, interview, Vermillion has no information regarding Dawn Buss’s involvement in the circumstances at issue in this case.
3. Charles Whelan was, at all times relevant to the allegations made against him in the Third Amended Complaint, employed by the IDOC in the Division of Internal Affairs at the ISP as Internal Affairs Officer 3. Vermillion had no interaction with Charles Whelan other than the interview.
4. Ralph Carrasco was, at all times relevant to the allegations made against him in the Third Amended Complaint, an employee of IDOC, Division of Internal Affairs at ISP as Internal Affairs Officer 4. Vermillion’s only support for a claim against Carrasco is that he prepared a conduct report charging Vermillion with a trafficking offense.
5. Mark Levenhagen was at all times relevant to the Third Amended Complaint employed by IDOC as the Superintendent of Westville Correctional Facility.
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6. Brett Mize was, at all times relevant to the allegations made against him in the Third Amended Complaint, employed by IDOC as Director of Operations. Vermillion was told that he was placed in department-wide administrative segregation by Mize. Mize was “the one who decided whether or not you were going to be placed in this administrative segregation status.” (Vermillion Dep. 42:24-43:1.)
7. Howard Morton at all relevant times to the Third Amended Complaint was employed by the IDOC at ISP as an Administrative Assistant.
8. Sally Nowatzke at all relevant times to the Third Amended Complaint was employed by the IDOC at Westville as a Counselor. She served as a case manager who worked in the WCU.
9. Gary Brennan at all relevant times to the Third Amended Complaint was employed by the IDOC at Westville as an Administrative Assistant. Brennan was one of the officials who oversaw the WCU. B. Investigation and transfer
1. On July 12, 2009, Offenders Lance Battreal, Charles Smith, and Mark Booher escaped from ISP, which is located in Michigan City, Indiana.
2. During the course of the investigation into the escape, information was received from an offender that Unit Team Counselor Don Bates and Vermillion were trafficking tobacco into ISP and that the proceeds were being stored in the law library. During a subsequent interview into the allegations of trafficking with offenders, Bates confessed to trafficking tobacco with Vermillion.
3. Based on this information, investigators decided to interview Vermillion.
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4. On July 29, 2009, Vermillion was taken from his cell at ISP to the Internal Affairs Office, where he was interviewed by IDOC Internal Affairs Investigators Charles Whelan, Dawn Buss, and Willard Plank. The audio recording reviewed by the court reflects that the Officers wanted Vermillion to assist with their investigation and they suggest that if he cooperated he might be permitted to keep his cat in “lock up.” Dkt. 200, manual filing, audio recording at 4:48. Vermillion then asks “why would I go to lock up?” Id. at 5:18. He is told for trafficking. Id. at 5:32. One of the officers goes on to say that they spoke with Bates yesterday and that “he doesn’t work here any longer.” Id. at 5:40. Vermillion asks what that has to do with him. Id. at 5:41. The answer cannot be discerned from the audio, but the Officer goes on to state that they would like Vermillion to assist them because he has “a wealth of information you could help us with. That pertains to escape, to trafficking with Bates, cell phones, tobacco three or four times a week. We have a general idea of what’s going on but we just want you to play ball with us, that’s all.” Id. at 6:04-6:24. Vermillion then told Plank “I don’t think we have anything else to talk about.” Id. at 6:44; Ver. Dep. 10:22-23. In response, Plank said “okay lock him up.” Audio at 6:47.
5. Plank then explained that Vermillion would be placed in segregation pending the investigation and the outcome would probably be a charge of trafficking with a staff member. Audio at 6:52. In addition, if as a result of the investigation it was determined that he was involved with the escape he would be charged with aiding and abetting the escape. Audio at 7:11.
6. Plank then asked “you got any questions?” Vermillion said “no.” Audio at 7:22. 7. Vermillion was handcuffed and taken from the interview to the disciplinary segregation unit (“IDU”).
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8. On July 31, 2009, Internal Affairs Investigator Ralph Carrasco prepared a conduct report charging Vermillion with trafficking with Indiana State Prison Counselor Don Bates. The conduct report provides in relevant part:
9. A few days later, a screening officer met with Vermillion and provided him with a screening report indicating that he was under investigation for trafficking with staff. Vermillion was also provided a Segregation/Confinement Report which informed him that he was being placed in segregation pending investigation for trafficking with staff. Dkt. 208-1.3
10. Prior to his confinement in segregation, Vermillion worked in the law library. Following the internal affairs interview, a search of the law library uncovered $12,000 in cash and four pounds of tobacco.
3 The defendants note that Mr. Bates pled guilty to trafficking as a Class C Felony under Indiana Code § 35-44-3-9. State of Indiana v. Donald Bates, 46D02-1004-FC-000022, docket sheet available online at mycase.in.gov. The docket sheet reflects that Mr. Bates’ sentence was suspended and served as probation. After probation was successfully completed, the charge was converted to a Class A Misdemeanor.
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11. Trafficking in money and tobacco is a security risk to the orderly operation of a prison facility. Segregating an offender involved in trafficking is a means of disrupting a trafficking network.
12. Whelan testified that Vermillion was placed in segregation pending the outcome of the investigation into trafficking, and not because he refused to answer questions during his interview. Any offender involved in trafficking would be placed in segregation and Vermillion was not treated any differently.
13. Vermillion was confined in the IDU from July 29 to August 12, 2009. 14. On August 12, 2009, Vermillion was found guilty of trafficking and transferred from ISP to the Westville Control Unit or WCU. He was sentenced to one year in disciplinary segregation, lost 30 days of earned good time credit and was demoted from Credit Earning Class I to Credit Earning Class II. Dkt 209 at 5. Vermillion’s trafficking conviction was vacated for rehearing three times.4 The Seventh Circuit’s Order which remanded Vermillion’s petition for a writ of habeas corpus in Vermillion v. Superintendent, 3:12-cv-150-PPS, was decided years after this civil rights action was initiated. That Order discusses the fact that Vermillion was not given notice of the charge alleged against him. See Vermillion v. Mark E. Levenhagen, Case No. 12-2436 (7th Cir. March 26, 2013) (nonprecedential disposition) (attached to this Entry). On February 13, 2014, however, instead of conducting a fourth hearing of the trafficking charge, Vermillion’s
4 See Vermillion v. Superintendent, Cause No. 3:10-cv-119-PPS (N.D. Ind. March 16, 2011), Vermillion v. Superintendent 3:11-cv-123-TLS (N.D. Ind. October 24, 2011), Vermillion v. Superintendent 3:12-cv-150-PPS (N.D. Ind. 2012). All filed in the Northern District of Indiana and attacking Vermillion’s trafficking conviction.
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trafficking charge of July 29, 2009, was dismissed and the entire matter was expunged from his record. Dkt. 208 at ¶ 58.
15. Vermillion repeatedly argues that he should never have been found guilty of trafficking because on July 29, 2009, he was being interviewed by internal affairs and not available for trafficking. There is no doubt the conduct report was flawed. The conduct reports lists, for the date of offense, the date when the prison counselor confessed that he and Vermillion trafficked. The Seventh Circuit noted that “The only incident date appearing in this record is July 29, and the prison does not contend that it ever believed that this date was correct.” Vermillion, No. 12-2436 at p. 4. The conduct report does not reflect that on that date and time Vermillion was actively involved in trafficking. Dkt. 208-1 at p. 2. It is for this reason that the anticipated testimony of ISP Officers Sabinski, McCormack and Walker and ISP Disciplinary Hearing Board Chairman Bessie Leonard is insufficient to create a material fact in dispute. These individuals were expected to testify that it was not possible for Vermillion to have been trafficking with staff in I-Cellhouse at the exact date and time he was being interrogated by Internal Affairs Investigators. There is no dispute that Vermillion was not trafficking on July 29, 2009.
16. On or about August 12, 2009, WCU case counselor Sally Nowatzke and WCU Director of Operations Gary Brennan falsified information and documentation to increase Vermillion’s security classification designation so that he could be housed at the super max facility.
17. Vermillion testified that from August 12, 2009, he was placed in C-Pod where psychotic, out-of-control, and unmanageable inmates are housed. For the next three and a half years he was subjected to the following conditions. Dkt. 208 at p. 7.
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a. complete isolation in a solid concrete cell with a solid steel door for 23-24 hours a day; b. no direct contact or interaction with others; c. extreme cold; d. constant strobe-lighting; e. cell-flooding; f. mace fumes; g. people threatening to and actually committing suicide; h. no actual recreation; i. no telephone use (for two and a half years); j. no work, income, or educational opportunities; k. no religious services; l. no hot water; m. cold meals; n. regular cell ransacking; and o. humiliating strip-searches. 18. In October of 2009, Vermillion met with Doug Barnes who informed him that he was being placed on department-wide administrative segregation per Brett Mize.5 19. Howard Morton’s only involvement in this lawsuit was with regard to Vermillion’s legal mail. Vermillion wrote letters and hand-drafted affidavits for Sergeant Sabinski, Officer Springfield, and Officer Day. Vermillion wanted the Sergeant and Officers to sign affidavits in
5 There is no indication that this classification changed Vermillion’s physical placement or the conditions of his confinement listed above at paragraph number 17.
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Case 1:15-cv-00605-RLY-TAB Document 214 Filed 05/22/18 Page 13 of 28 PageID #: 1379 support of his appeal from his prison disciplinary conviction for trafficking. Howard Morton sent Vermillion two letters informing Vermillion that he received the letters and that IDOC staff would not be signing affidavits for Vermillion. Sergeant Sabinski, Officer Springfield, and Officer Day were not Vermillion’s attorneys, but were employees of the Indiana Department of Correction. The letters reflect the following:
Dkt. 196-1 at 136.
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This letter was located in Vermillion v. Superintendent, 3:10-cv-119-PPS, at dkt 1-1. 20. Vermillion is now back in general population. (Ver. Dep. 50:16-19.) 21. Spending 1,513 days on an ergonomically incorrect mat, in a painfully cold cell,
and without access to a chair caused Vermillion spinal problems. In addition, being placed in solitary confinement under harsh conditions without due process and based on a conduct report that was ultimately expunged caused him mental, emotional and psychological injury.
IV. Discussion A. Retaliation
Vermillion’s first claim is that Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, and Gary Brennan placed Vermillion in punitive segregation at ISP, transferred him to the Maximum Control
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Segregation Unit (the “WCU”) at Westville, and confined him in segregation in retaliation for his assertion of his right to silence during an interview by internal affairs investigators. Dkt. 97, p. 2. For the reasons explained below, the defendants are entitled to summary judgment on this claim.
As a preliminary matter, Vermillion argues that the Seventh Circuit’s “decree of March 5, 2015,” decided that the evidence was sufficient to support his claim of retaliation and that this ruling is binding in all subsequent proceedings, including the instant summary judgment proceedings. Dkt. 209 at p. 5. Vermillion is mistaken. The standard for surviving a motion to dismiss is different from the summary judgment standard set forth above. The fact that plausible claims were identified based solely on accepting the allegations in the complaint as true, is not the same as a finding that there is evidence to support those claims for purpose of summary judgment. Thus the Seventh Circuit’s opinion is not evidence that can be used for the purposes of defeating summary judgment, just as this court’s entry cannot be used as evidence to support either party at a future trial.
To prevail on his First Amendment retaliation claim, a plaintiff must show that “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was ‘at least a motivating factor’ in the Defendants’ decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009); see Mays v. Springborn, 719 F.3d 631, 635 (7th Cir. 2013); Devbrow v. Gallegos, 735 F.3d 584, 588 (7th Cir. 2013) (“Retaliation requires a showing that the plaintiff’s conduct was a motivating factor in defendant’s conduct.”).
There is no dispute that Vermillion engaged in protected activity when he refused to provide information to assist internal affairs with the investigation into trafficking and other
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prisoners’ escapes. The Fifth Amendment gives a person the right “not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). This right applies in the prison disciplinary context, and prison officials may violate a prisoner’s right against self-incrimination if a prisoner’s silence alone results in punishment of the kind capable of compelling waiver of the right. See Minnesota v. Murphy, 465 U.S. 420, 434 (1984); Baxter v. Palmigiano, 425 U.S. 308, 317 (1976); LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995).
There is also no dispute that Vermillion suffered deprivations that would likely deter First Amendment activity in the future. For example, he was placed in punitive segregation at ISP; he was transferred to WCU, and he was kept in solitary confinement for more than four years.
Retaliation also requires a showing that the plaintiff’s conduct was a motivating factor in the defendants’ conduct. Mere speculation is insufficient to meet this burden. Devbrow v. Gallegos, 735 F.3d 584, 588 (7th Cir. 2013). A defendant can prevail if he shows that the offending action would have happened even if there had been no retaliatory motive, i.e., the alleged harm would have occurred anyway. Mays v. Springborn, 719 F.3d 631, 634-35 (7th Cir. 2013). If defendants meet this burden, Vermillion must then show that the defendants’ proffered reason is pretextual, that is, a lie. Thayer v. Chiczewski, 705 F.3d 237, 250 (7th Cir. 2012).
The defendants are entitled to summary judgment as to all of Vermillion’s retaliation claims because no reasonable fact finder could conclude that Vermillion’s refusal to answer questions about other prisoner’s escapes on July 29, 2009, was a motivating factor in any defendant’s decision to take retaliatory action.
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The audio recording of the interview with internal affairs reflects that Vermillion was told that he was going to lock up for trafficking before he was asked to “play ball” and assist with the investigation. Vermillion then told Plank “I don’t think we have anything else to talk about,” and Plank then said “okay lock him up.” Audio at 6:44. Plank then explained that Vermillion would be placed in segregation pending the investigation and the outcome would probably be a charge of trafficking with a staff member. Audio at 6:52. In addition, if as a result of the investigation it was determined that Vermillion was involved with the escape he would be charged with aiding and abetting the escape. Audio at 7:11.
The adverse actions taken against Vermillion were all based on the investigation into trafficking. Internal Affairs Officer Whelan testified that another offender reported to internal affairs that then Unit Team Counselor Don Bates and Vermillion were trafficking tobacco into ISP and that the proceeds from the trafficking were being stored in the law library. Bates also confessed to trafficking tobacco with Vermillion. Searches were conducted at ISP that uncovered approximately $12,000 in cash hidden in the law library and four pounds of tobacco. Vermillion was treated like any other offender believed to be involved with trafficking in that he was placed in segregation.
Vermillion disagrees with this conclusion arguing that he has alleged a chronology of events from which retaliation may plausibly be inferred. In particular, Vermillion argues that immediately after he asserted his right to terminate the internal affair’s interview he was placed in solitary confinement in the facility’s punitive segregation unit. He argues that the conduct report was issued as a pretext to justify his segregation.
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As explained above, however, the decision to send Vermillion to “lock up” was made prior to Vermillion stating that he was done talking to the internal affairs officers. In addition, his placement in segregation was a result of the trafficking investigation. Vermillion goes on to claim that he was charged with an offense that could not have occurred; that is, trafficking with Counselor Don Bates in I-Cellhouse at 9:30 a.m. on July 29, 2009, which is the exact date and time he was being interrogated by defendants Plank, Buss, and Whelan. Vermillion is correct that the conduct report was poorly written and ambiguous, but that does not negate the fact that internal affairs conducted an investigation into Vermillion trafficking tobacco with Bates and that internal affairs concluded after locating thousands of dollars in the law library that trafficking had occurred. Accepting the record in the light most favorable to Vermillion, it is possible that he was not involved in trafficking, but the undisputed evidence is that the internal affairs officers believed he was. In addition, the undisputed facts show that Vermillion was segregated as a result of an investigation showing evidence of ongoing trafficking, and not because he was believed to be trafficking in the Internal Affairs office on July 29, 2009 at 9:30 a.m. Under these circumstances the deficient conduct report does not establish that the explanation for his segregation was a pretext.
Finally, there is no evidence to support the assertion that defendants were motivated to deny Vermillion due process during the disciplinary proceedings because he refused to assist the internal affairs investigation. Vermillion argues that a number of IDOC employees would testify that they were instructed to take actions with respect to Vermillion in retaliation for his invocation, or they “understood” he was placed in the WCU in retaliation for refusing to answer questions concerning the July 12, 2009, escape of three men from ISP. See dkt. 194. But this testimony, even
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if accepted as true for purposes of summary judgment, it is insufficient to create a material fact in dispute because the testimony does not include any reference to the individual defendants or how the individual defendants were involved in retaliating against Vermillion. Instead, this anticipated testimony appears to show that certain non-parties were aware of or participating in retaliation. Hearsay statements are insufficient to survive summary judgment.
The IDOC’s due process failures and Vermillion’s extended placement in solitary confinement are problematic for the reasons discussed below, but there is no evidence that retaliation was a motivating factor.
No reasonable trier of fact could conclude that that the adverse actions Vermillion faced were the result of the defendants’ retaliating against him for exercising his Fifth Amendment rights. Accordingly, the defendants are entitled to judgment as a matter of law on the retaliation claim. B. Conditions of Confinement at Westville Control Unit
Vermillion next claims that Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, and Gary Brennan placed Vermillion in the Westville Control Unit for 1,513 days in violation of his Eighth Amendment right to be free of cruel and unusual punishment. See dkt. 97, pp. 2-3. For the reasons explained below, Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, and Howard Morton are entitled to summary judgment because they lack personal involvement in the conditions of confinement Vermillion faced in the WCU. Meanwhile, the Eighth Amendment claim shall proceed as to Mark Levenhagen, Brett Mize, Sally Nowatzke and Gary Brennan.
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In Isby v. Brown, 856 F.3d 508 (7th Cir. 2017), the Seventh Circuit explained that in order
to prevail on a conditions of confinement claim,
two elements are required to establish a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment: first, an objective showing that the conditions are sufficiently serious—i.e., that they deny the inmate “the minimal civilized measure of life’s necessities,” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), creating an excessive risk to the inmate’s health and safety—and second, a subjective showing of a defendant’s culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). We have held that “prolonged confinement in administrative segregation may constitute a violation of the Eighth Amendment ... depending on the duration and nature of the segregation and whether there were feasible alternatives to that confinement.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 666 (7th Cir. 2012) (citing Walker v. Shansky, 28 F.3d 666, 673 (7th Cir. 1994)); see also Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987).
Id. at 521.
The defendants do not provide any evidence as to the conditions of confinement
Vermillion faced in the WCU. Instead, they argue that Vermillion has failed to articulate a
singular, legally cognizable human need of which he has been deprived. The defendants point out
that the Seventh Circuit has held that “[i]nactivity, lack of companionship and a low level of
intellectual stimulation do not constitute cruel and unusual punishment even if they continue for
an indefinite period of time.” Isby v. Brown, 856 F.3d 508, 522 (2017) (quoting Bono v. Saxbe,
620 F.2d 609, 612 - 614 (7th Cir. 1980)). They further argue that given the “extensive case law
rejecting Eighth Amendment claims based upon” conditions of confinement like those found
at the Westville Control Unit, “[w]ithout some egregious deprivation … complaints about the
conditions of confinement fall short.” Isby, 856 F.3d 508, 522 (7th Cir. 2017) (holding that the
district court did not err in rejecting an Eighth Amendment challenge to the conditions of
confinement in the Special Confinement Unit at the Wabash Valley Correctional Facility). 20

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Vermillion testified that for more than four years he was subjected to complete isolation in a solid concrete cell with a solid steel door for 23-24 hours a day with no direct contact or interaction with others. While in his cell he was exposed to extreme cold, constant strobe-lighting, cell-flooding, mace fumes, people threatening to and actually committing suicide, no actual recreation, no telephone use (for two and a half years), no work, income, or educational opportunities, no religious services, no hot water, cold meals, regular cell ransacking, and humiliating strip-searches. Unlike the plaintiff in Isby there is no suggestion that Vermillion’s failure to cooperate was the reason he remained in the WCU. In addition, unlike the plaintiff in Isby, there is no basis in the record to conclude that Vermillion was a security threat beyond the fact that he had been investigated for trafficking with an officer. Vermillion attached Executive Directive #09-07 dated January 21, 2009 (effective date February 15, 2009). This directive and the disciplinary appeal for case number ISP 09-08-0006 reflect that the disciplinary segregation time associated with the trafficking conviction (which was later expunged) was limited to 30 days on October 8, 2009. Dkt. 208-1 at 6. These facts suggest that “there were feasible alternatives to that confinement.” Isby, 856 F.3d at 521.
Under these circumstances, the defendants request to find that there was no sufficiently serious deprivation must be denied. Similarly, the claim that Vermillion has not alleged an injury sufficient to survive summary judgment is rejected. He testified that the cold caused him pain, the deprivation of human contact associated with solitary confinement caused him psychological injury, and that the accommodations injured his back. Dkt. 209 at p. 27. See Hutto v. Finney, 437 U.S. 678, 686-87 (1978) (“[T]he length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards.”); Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring) (discussing “[t]he human toll wrought by extended terms of isolation”
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Id. at 2209) (citing Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U.J.L. & Pol’y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors)).
Next, the defendants argue that several defendants lack the requisite personal involvement such that there is no evidence that suggests they had the necessary culpable state of mind. Plank, Buss, and Whelan were involved in Vermillion’s interview and the investigation into trafficking, but there is no evidence that they were involved in any of the events that transpired after he was initially placed in segregation after leaving the Internal Affairs office. As for Carrasco, he drafted the conduct report, but Vermillion has no information about what Carrasco did after that or any information showing that he was involved in any of the events that would transpire after he left the Indiana State Prison.
A defendant can be held liable under Section 1983 only for deprivations that he or she personally caused, either by direct action or by approval of the conduct of others – vicarious liability cannot support a Section 1983 claim. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). Moore v. State of Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993) (liability under Section 1983 must be based on personal responsibility, not respondeat superior). In order to be held responsible for the violation of a federally secured right pursuant to 42 U.S.C. § 1983, an individual must have personally participated in the alleged constitutional violation. Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000) (citing Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir.1996)). Accordingly, Plank, Buss, Whelan, Carrasco and Morton are entitled to judgment as a matter of law on the Eighth Amendment claim based on the conditions of confinement Vermillion faced in WCU.
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As to the remaining defendants, Superintendent Levenhagen, Sally Nowatzke, Brett Mize and Gary Brennan, the claims against them shall proceed as submitted. Vermillion argues that these defendants had to have known of the risks inherent to long-term solitary confinement but deliberately subjected Vermillion to those conditions for more than three years such that a jury could conclude they possessed the sufficiently culpable state of mind. Dkt. 209 at p. 28. In the absence of any evidence from the defendants to contradict this claim, Vermillion’s argument is accepted. Each of these defendants knew or should have known that Vermillion had been placed in solitary confinement for over four years under conditions readily apparent.
In particular, Vermillion testified that Nowatzke and Brennan were responsible for changing/falsifying Vermillion’s security classification so that he would remain in the WCU. Brennan was also responsible for confiscating of Vermillion’s television and the destruction of Vermillion’s personnel effects which impacted the conditions of Vermillion’s confinement and is conduct consistent with deliberate indifference. In addition, given the nature of the undisputed conditions in the WCU, Superintendent Levenhagen and Brett Mize, the officer who placed Vermillion on department-wide administrative segregation status in the WCU as the IDOC Director of Operations, should have known of the conditions Vermillion faced and were the individuals in the best position to correct the problems. “A defendant will be deemed to have sufficient personal responsibility if he directed the conduct causing the constitutional violation, or if it occurred with his knowledge or consent.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
Summary judgment on the Eighth Amendment conditions of confinement claim based on Vermillion’s placement in solitary confinement for 1,513 days in the WCU is denied as to
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Defendants Brennan, Nowatzke, Levenhagen and Mize.
C. Transfer to Department-Wide Administrative Segregation Vermillion alleges that Plank, Buss, Whelan, Carrasco, Levenhagen, and Mize, transferred
him from the Indiana State Prison to department-wide administrative segregation at WCU in violation of his due process rights. There is no dispute that Vermillion did not have a liberty interest in avoiding a transfer to Westville. However, inmates transferred to a “supermax” prison are entitled to informal, non-adversarial due process. Wilkinson v. Austin, 545 U.S. 209, 229-29 (2005) (describing supermax facilities “as maximum-security prisons with highly restrictive conditions, designed to segregate the most dangerous prisoners from the general prison population.” Id. at 213). This informal due process requires “‘some notice’ of the reasons for the inmate’s placement . . . and enough time to ‘prepare adequately’ for the administrative review.” Westefer v. Neal, 682 F.3d 679, 684 (7th Cir. 2012). This informal review procedure need only take place within a ‘reasonable time’ of the inmate’s transfer to the supermax facility. Id. The Supreme Court has held that when an inmate is transferred to administrative segregation, he must have:
an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied. Hewitt v. Helms, 459 U.S. 460, 476 (1983) (quoted by Westefer, 682 F.3d at 685). No written decision describing the reasons for an inmate’s placement or appeal procedure is required. However, a periodic review of the placement determination is required. Id. See also Littler v.
24

Case 1:15-cv-00605-RLY-TAB Document 214 Filed 05/22/18 Page 25 of 28 PageID #: 1391
Indiana Dep't of Corr. Com'r, No. 3:11-CV-218 CAN, 2013 WL 4551072, at *1 (N.D. Ind. Aug. 28, 2013) (discussing available damages when IDOC agreed constitutionally required due process hearing was denied prior to placement in department-wide administrative segregation unit).
Vermillion argues that because the defendants have not argued or offered any evidence that they complied with the requirements of Wilkerson and Westefer and Vermillion has testified that he was not given due process, a reasonable factfinder could conclude that the defendants violated his due process rights. In particular, defendants Levehagen and Mize do not seek summary judgment as to this claim. These defendants are allegedly responsible for Vermillion’s transfer from the ISP to department-wide administrative segregation in the WCU at Westville in violation of his due process rights. The due process claim against defendants Levehagen and Mize shall proceed.
Willard Plank, Dawn Buss, Charles Whelan, and Ralph Carrasco do seek summary judgment on this claim. These defendants were involved in Vermillion’s original placement in segregation, but there is no evidence they were involved in Vermillion’s placement in departmentwide administrative segregation which was a decision made by Mize and approved by Levenhagen. Accordingly, they are entitled to summary judgment on the due process claim. D. Certified Mail Seeking Affidavits
Vermillion’s final claim for relief is that defendant Morton confiscated three pieces of certified legal mail in violation of Vermillion’s due process and First Amendment rights. Vermillion explains that the mail included a cover letter, proposed affidavit of staff witnesses and a self-addressed stamped envelope. Morton intercepted this mail and in a letter dated October 16, 2009, advised Vermillion that, after consulting with IDOC’s legal staff, no employees would be signing affidavits for him.
25

Case 1:15-cv-00605-RLY-TAB Document 214 Filed 05/22/18 Page 26 of 28 PageID #: 1392
The letters were directed toward Vermillion’s administrative appeal of his prison disciplinary sanction. The letters requested that three staff members sign affidavits. Sgt. Sabinski was asked to testify to the fact that on Wednesday, July 29, 2009, at 8:40 a.m., he escorted Vermillion to the Internal Affairs office and that Vermillion never returned to I-Cellhouse. Sgt. Springfield was asked to testify that on Wednesday, July 29, 2009, at 8:40 a.m. he witnessed Sgt. Sabinski escort Vermillion to the Internal Affairs office and that Vermillion did not return to ICellhouse. Dkt. 196-1 at 125. Sgt. Day was asked to testify to the fact that Vermillion’s August 12, 2009, disciplinary hearing was conducted by only one hearing officer. Dkt. 196-1 at 127.
These letters including the affidavits were not entitled to any special protection. “Inmates have a First Amendment right both to send and receive mail, but that right does not preclude prison officials from examining mail to ensure that it does not contain contraband.” Kaufman v. McCaughtry, 419 F.3d 678, 685 (7th Cir. 2005). Vermillion’s rights were not violated when Howard Morton reviewed mail sent by Vermillion to employees of the Department of Correction who were not his attorneys and responded that IDOC staff would not sign his affidavits. In addition, Vermillion was not injured by the confiscation of these letters. The content reflects that he intended to use them to challenge his trafficking conviction. That conviction was ultimately expunged. Under these circumstances, Vermillion was not injured by Morton’s confiscation of the letters nor was he denied access to court. Had the disciplinary hearing process worked properly (it did not), the proper manner for Vermillion to receive the testimony he sought was by requesting witnesses statements.
Morton is entitled to summary judgment on this claim.
26

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V. Conclusion The defendants’ motion for summary judgment, dkt [196], is granted in part and denied in part. Defendants Howard Morton, Willard Plank, Dawn Buss, Charles Whelan, and Ralph Carrasco are entitled to judgment as a matter of law as to all claims alleged against them. The clerk is directed to terminate these five defendants on the docket. All defendants are entitled to summary judgment on the retaliation claim. Summary Judgment is denied as to the claim that Mark Levenhagen, Sally Nowatzke, Brett Mize and Gary Brennan violated Vermillion’s Eighth Amendment rights through his placement in the Westville Control Unit for 1,513 days. Summary Judgment is denied as to the claim that Mark Levenhagen and Brett Mize transferred Vermillion from the ISP to department-wide administrative segregation at the Westville Control Unit in violation of Vermillion’s due process rights. No partial final judgment shall issue at this time as to the claims resolved in this Entry. IT IS SO ORDERED.
5/22/2018
27

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Distribution: JAY F. VERMILLION 973683 PENDLETON - CF PENDLETON CORRECTIONAL FACILITY Electronic Service Participant – Court Only David C. Dickmeyer INDIANA ATTORNEY GENERAL David.Dickmeyer@atg.in.gov Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL benjamin.jones@atg.in.gov
28

 
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 Case 1:15-cv-00605-RLY-TAB Document 313 Filed 06/21/19 Page 1 of 2 PageID #: 2476

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAY F. VERMILLION, Plaintiff,
v. MARK E. LEVENHAGEN, et al.,
Defendants.

) ) ) ) ) CASE NO. 1:15-cv-605-RLY-TAB ) ) ) )

DEFENDANTS’ MOTION TO EXCLUDE THE TESTIMONY OF PLAINTIFF’S EXPERT WITNESSES

Defendants Mark E. Levenhagen, Sally Nowatzke, Brett Mize, and Gary Brennan, by counsel, respectfully move this Court to exclude the testimony of Plaintiff’s purported experts, Dr. Terry Kupers and Dan Pacholke. A brief in support of this motion is being filed and is incorporated herein.
WHEREFORE Defendants urge the Court to exclude the testimony of Plaintiff’s purported experts, Dr. Terry Kupers and Dan Pacholke, and grant all other appropriate relief.

Respectfully submitted,
CURTIS T. HILL, JR. Indiana Attorney General Atty. No. 13999-20
By: David C. Dickmeyer Deputy Attorney General Atty. No. 31947-49

Case 1:15-cv-00605-RLY-TAB Document 313 Filed 06/21/19 Page 2 of 2 PageID #: 2477

CERTIFICATE OF SERVICE I hereby certify that on June 21, 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent notice electronically to all counsel of record.

David C. Dickmeyer Deputy Attorney General

OFFICE OF THE ATTORNEY GENERAL

Indiana Government Center South – 5th Floor

302 W. Washington Street

Indianapolis, IN 46204-2770

Telephone: (317) 234-2265

Fax:

(317) 232-7979

 
 Case 1:15-cv-00605-RLY-TAB Document 294 Filed 04/26/19 Page 1 of 4 PageID #: 1794

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAY F. VERMILLION,
Plaintiff,
v.
MARK E. LEVENHAGEN, SALLY NOWATZKE, BRETT MIZE, GARY BRENNAN,
Defendants.

)

)

)

)

)

No. 1:15-cv-00605-RLY-TAB

)

)

)

)

)

)

)

Entry Denying Motion for Leave to File Fourth Amended Complaint Now before the court is Plaintiff’s motion for leave to file a Fourth Amended Complaint. Dkt [273]. The proposed Amended Complaint seeks to do two things: 1) add claims against Douglas Barnes; and 2) amend or clarify the scope of the due process claims. Defendants’ motion for leave to file a surreply, dkt [291], is granted. The motion to amend is now fully briefed. The motion to amend is necessarily brought under Rule 15(a)(2) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 15(a)(2). “It instructs courts to ‘freely give leave when justice so requires,’ and thus district courts should not deny leave absent a ‘good reason’—such as futility, undue delay, prejudice, or bad faith.” Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 417 (7th Cir. 2019). The motion to amend is denied because it is untimely and unduly prejudicial to Defendants. The deadline to file the Third Amended Complaint in this action was May 15, 2015. See dkt. 92. On June 1, 2016, the parties were instructed that further amendments to the complaint were not anticipated. Dkt. 146. Plaintiff argues, however, that the amendments are timely because counsel

Case 1:15-cv-00605-RLY-TAB Document 294 Filed 04/26/19 Page 2 of 4 PageID #: 1795

was recently appointed to assist the otherwise indigent, pro se, prisoner plaintiff. This court agrees

that court-recruited counsel has acted with diligence and that it is difficult to litigate pro se.

However, the appointment of counsel does not negate the fact that this action was originally filed

on July 12, 2011, and that the Defendants have actively litigated the claims raised in the Third

Amended complaint. Defendants’ motion for summary judgment was granted in part and denied

in part on May 22, 2018. Following summary judgment there are only two claims remaining for

resolution in this nearly 8-year-old case:

Whether Mark Levenhagen, Sally Nowatzke, Brett Mize and Gary Brennan violated Vermillion’s Eighth Amendment rights through his placement in the Westville Control Unit for 1,513 days.

Whether Mark Levenhagen and Brett Mize transferred Vermillion from the ISP to department-wide administrative segregation at the Westville Control Unit in violation of Vermillion’s due process rights.

Dkt. 214 at 27.

I.

Proposed Addition of Defendant Barnes

Plaintiff seeks to add claims against Douglas Barnes. These claims would necessarily be

brought against him in his individual capacity. This action was transferred to this Court following

the Seventh Circuit’s Mandate entered on April 6, 2016. That Mandate specifically vacated the

Northern District of Indiana’s Judgment insofar as it dismisses any claim against defendants

Levenhagen, Morton, Brennan, Mize, Nowatzke, Plank, Buss, Whelan, and Carrasco. Mr. Barnes

was not named in the Mandate and to attempt to bring him into this case more than three years

after the Mandate would be prejudicial and cause undue delay.

II. Proposed Addition of Due Process Claims

The Motion to Amend the Complaint to include a claim against Defendants Brennan and

Nowatzke for their ongoing failure to afford Plaintiff the periodic reviews of his placement in

Case 1:15-cv-00605-RLY-TAB Document 294 Filed 04/26/19 Page 3 of 4 PageID #: 1796
department-wide administrative segregation is denied. The addition of due process claims against Brennan and Nowatzke shall not be permitted because it is unduly prejudicial to these Defendants. The court’s screening order reflects that the court did not understand the Third Amended Complaint, dkts [96] and [97], to include an independent claim based on the failure to provide periodic reviews of Plaintiff’s placement against Defendants Nowatzke and Brennan. Nor were these claims developed prior to the resolution of summary judgment. That said, this ruling should not be read to suggest that the purported denial of periodic reviews by Brennan and Nowatzke is irrelevant to the Eighth Amendment claim proceeding against them. Evidence of the denial of meaningful reviews could support the claim that these Defendants were deliberately indifferent to Plaintiff’s conditions or confinement.
The Court understands the due process claim proceeding in this case against Defendants Levenhagen and Mize to encompass the claim that Plaintiff was denied meaningful, periodic review of his prolonged isolation. Accordingly, no amendment as to these two Defendants is necessary.
III. Conclusion The motion to amend, dkt [273], is denied. This ruling reflects the court’s need to continue
to narrow the issues first raised in the Northern District of Indiana on July 12, 2011, and streamlined in the Seventh Circuit’s Mandate. Given the substantial passage of time, Plaintiff must live with the litigation decisions he made years ago prior to the recruitment of counsel. The due process claims proceeding in this case against Defendants Levenhagen and Mize are understood to encompass the claim that Plaintiff was denied meaningful, periodic review of his prolonged isolation following his transfer to department-wide administrative segregation.
IT IS SO ORDERED.
Date: 4/26/2019

Case 1:15-cv-00605-RLY-TAB Document 294 Filed 04/26/19 Page 4 of 4 PageID #: 1797
Distribution:
JAY F. VERMILLION 973683 PENDLETON - CF PENDLETON CORRECTIONAL FACILITY Electronic Service Participant – Court Only
Locke E. Bowman NORTHWESTERN PRITZKER SCHOOL OF LAW l-bowman@law.northwestern.edu
David C. Dickmeyer INDIANA ATTORNEY GENERAL David.Dickmeyer@atg.in.gov
Maggie E. Filler RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER maggie.filler@macarthurjustice.org
Ryan J. Guillory OFFICE OF ATTORNEY GENERAL CURTIS HILL ryan.guillory@atg.in.gov
Melinda K. Johnson WILLIAMS & CONNOLLY LLP mkjohnson@wc.com
Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL benjamin.jones@atg.in.gov
Alice McKenzie Morical HOOVER HULL TURNER LLP amorical@hooverhullturner.com
Jonathan Paul Nagy INDIANA ATTORNEY GENERAL jonathan.nagy@atg.in.gov
Matthew B. Underwood WILLIAMS & CONNOLLY LLP munderwood@wc.com
Christopher D. Wagner HOOVER HULL TURNER LLP cwagner@hooverhullturner.com
Destiny Reve Scott Wells INDIANA ATTORNEY GENERAL destiny.wells@atg.in.gov

 
 Case 1:15-cv-00605-RLY-TAB Document 340 Filed 10/18/19 Page 1 of 2 PageID #: 3283

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAY F. VERMILLION, Plaintiff,
v. MARK E. LEVENHAGEN, et al.,
Defendants.

) ) ) ) ) CASE NO. 1:15-cv-605-RLY-TAB ) ) ) )

JOINT STIPULATION OF DISMISSAL WITH PREJUDICE

Plaintiff, by counsel, and Defendants, by counsel, having reached a settlement agreement

in this matter, hereby stipulate to the dismissal of this cause of action, with prejudice, each party

to bear its own fees and costs.

Respectfully submitted,
CURTIS T. HILL, JR. Indiana Attorney General Atty. No. 13999-20
By: /s David C. Dickmeyer David C. Dickmeyer Deputy Attorney General Atty. No. 31947-49 IGCS – 5th Floor 302 W. Washington Street Indianapolis, IN 46204-2770 T: (317) 234-2265 F: (317) 232-7979 David.Dickmeyer@atg.in.gov
Counsel for Defendants

Respectfully submitted,
JAY VERMILLION
/s Maggie E. Filler* Maggie E. Filler Roderick & Solange MacArthur Justice Center 160 East Grand Ave., 6th Floor Chicago, IL 60611 (312) 503-0899
Counsel for Plaintiff
* Admitted pro hac vice

Case 1:15-cv-00605-RLY-TAB Document 340 Filed 10/18/19 Page 2 of 2 PageID #: 3284
CERTIFICATE OF SERVICE I hereby certify that on October 18, 2019, the foregoing was filed using the Court’s CM/ECF electronic filing system. Copies of the filed documents will be electronically sent to all counsel of record in the CM/ECF system.
/s/ Maggie Filler Maggie Filler (pro hac vice) Roderick & Solange MacArthur Justice Center 160 East Grand Ave., 6th Floor Chicago, IL 60611 (312) 503-0899

 
 List of Exhibits Ex. 1-Morgan Report Ex. 2-Robert Morgan CV Ex. 3-Testimony, Publications, and Compensation Ex. 4-Desposition Transcript Ex. 5-Brazeau Opinion Ex. 6-CCLA Lower Court Opinion Ex. 7-CCLA Court of Appeals Opinion Ex. 8-Corrections Today Ex. 9-Correction Today Website (Speak Out Column Description) Ex. 10-Morgan Meta-Analysis

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EXHIBIT 1 Dr. Morgan Report

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Case 1:15-cv-00605-RLY-TAB Document 312-2 Filed 06/21/19 Page 1 of 30 PageID #: 1903
EXHIBIT 2 Dr. Morgan Curriculum Vitae

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EXHIBIT 3 Dr. Morgan Report
Addendum

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Case 1:15-cv-00605-RLY-TAB Document 312-4 Filed 06/21/19 Page 1 of 70 PageID #: 1947
EXHIBIT 4 Dr. Morgan Deposition
Excerpts

Case 1:15-cv-00605-RLY-TAB Document 312-4 Filed 06/2D1r/1.9 RoPbaegret2Moofr7g0anPa0g5e/ID21#/:21091498
·1· · · · · · · ·IN THE UNITED STATES DISTRICT COURT · · · · · · · ·FOR THE SOUTHERN DISTRICT OF INDIANA ·2
·3· ·JAY VERMILLION,· · · · ·) · · · · · · · · · · · · · · ·) ·4· · · Plaintiff,· · · · · ·) · · · · · · · · · · · · · · ·) ·5· ·VS.· · · · · · · · · · ·) Case No. 1:15-CV-0605-RLY-TAB · · · · · · · · · · · · · · ·) ·6· ·MARK LEVENHAGEN, et al, ) · · · · · · · · · · · · · · ·) ·7· · · Defendants.· · · · · )
·8· ·********************************************************
·9· · · ORAL AND VIDEOTAPED DEPOSITION OF DR. ROBERT MORGAN
10· · · · · · · · · · · · ·May 21, 2019
11· ·********************************************************
12
13
14· · · · · ORAL AND VIDEOTAPED DEPOSITION of DR. ROBERT
15· ·MORGAN, produced as a witness at the instance of the
16· ·PLAINTIFF, and duly sworn, was taken in the above-styled
17· ·and numbered cause on the 21st day of May, 2019 from
18· ·9:31 a.m. to 4:23 p.m. at the Overton Hotel and
19· ·Conference Center, 2322 Mac Davis Lane, Lubbock, Texas,
20· ·79401, before JAMIE JACKSON, CSR in and for the State of
21· ·Texas, reported by machine shorthand, pursuant to the
22· ·Federal Rules of Civil Procedure and the provisions
23· ·stated on the record or attached hereto.
24
25

McCorkle Litigation Services, Inc.

1

Chicago, Illinois· (312) 263-0052 YVer1f

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·1· ·the State had failed to represent me, so there was a -·2· ·I don't know what it's called. ·3· · · Q.· A default judgment? ·4· · · A.· A default judgment.· So I wrote back and said, "I ·5· ·didn't know about this."· I was a member, and they took ·6· ·care of it.· And I don't -- I never heard anything else ·7· ·by way of outcome. ·8· · · Q.· Do you know anything about the substance of that ·9· ·complaint? 10· · · A.· Yes.· It was in regard to the practice of the 11· ·segregation review board in a segregation unit. · And as 12· ·the mental health professional assigned to that unit, I 13· ·was by default a member of the segregation review board. 14· ·So it named the segregation review board, plus the 15· ·warden, I believe, of the facility, and I was named with 16· ·everybody else on the review board. 17· · · Q.· Got it.· Thank you. 18· · · A.· Uh-huh. 19· · · Q.· Have you ever been named in any lawsuit other 20· ·than the case that you were just describing? 21· · · A.· No, I have not. 22· · · Q.· And Dr. Morgan, I understand that you are a 23· ·Professor of Psychology at Texas Tech here in Lubbock; 24· ·is that right? 25· · · A.· That's correct.

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·1· · · Q.· And if we look at the first page of your CV, you ·2· ·have a heading for Education.· And if I understand this ·3· ·correctly, you have three degrees; is that right? ·4· · · A.· Yes. ·5· · · Q.· An undergraduate degree, a master's degree in ·6· ·Clinical Psychology, and a doctoral degree in Counseling ·7· ·Psychology, correct? ·8· · · A.· Yes, that's correct. ·9· · · Q.· Dr. Morgan, you are not a medical doctor, meaning 10· ·you didn't go through medical training, right? 11· · · A.· No, I did not. 12· · · Q.· And you received your doctoral degree in 13· ·Counseling Psychology from Oklahoma State University; is 14· ·that correct? 15· · · A.· Yes, it is. 16· · · Q.· Can you explain for me, a lay person, the 17· ·difference between Counseling Psychology and Clinical 18· ·Psychology, please? 19· · · A.· Yes.· The differences are really theoretical by 20· ·way of approach to one's work.· The outcome is by way of 21· ·what somebody will do with a clinical and counseling PhD 22· ·are essentially the same.· I've contributed to research 23· ·on that.· There's a body of literature to that.· We do 24· ·the same things, we do psychological assessments, we 25· ·provide psychotherapy, do crisis interventions,

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·1· ·Position/Appointments section of your CV, it looks to me ·2· ·like your first academic position came after you ·3· ·received your master's degree when you were teaching at ·4· ·a Junior College in Kansas; is that correct? ·5· · · A.· Yes.· I taught one semester of Introductory ·6· ·Psychology course. ·7· · · Q.· And then after you finished your post-doc, you ·8· ·started at Texas Tech; is that right? ·9· · · A.· That's correct. 10· · · Q.· And so all of these academic positions from about 11· ·2000 forward will be here at Texas Tech? 12· · · A.· Yes, that's correct. 13· · · Q.· And then the next heading of your CV is 14· ·Publications and Presentations.· Do you see that? 15· · · A.· Yes, I do. 16· · · Q.· And that is further subdivided and begins with a 17· ·section on Refereed Journals.· Does the term "Refereed 18· ·Journals" refer to peer review journals? 19· · · A.· Yes, it does. 20· · · Q.· And does that mean that a piece is accepted for 21· ·-- when a piece is accepted for publication it has to be 22· ·subjected to peer review by others in the field? 23· · · A.· Correct. 24· · · Q.· And I've counted here you have a number of peer 25· ·review publications.· My count is 82.· Does that sound

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·1· ·about right? ·2· · · A.· That sounds about right. ·3· · · Q.· And these are listed in reverse chronological ·4· ·order by publication date; is that right? ·5· · · A.· Yes. ·6· · · Q.· And if we look at the third page of your CV, I ·7· ·see one article with a lead author Chadick entitled "The ·8· ·psychological impact of solitary:· A longitudinal ·9· ·comparison of general population and long-term 10· ·administratively segregated male inmates," and that has 11· ·a 2018 publication date.· Is that one of the articles 12· ·that you've cited in your opinions in this case? 13· · · A.· Yes, I did. 14· · · Q.· And also seen on page 3, I see a 2017 piece where 15· ·you are the lead author, and it appeared in Corrections 16· ·Today, "Questioning solitary confinement:· Is 17· ·administrative segregation as bad as alleged;" is that 18· ·right? 19· · · A.· Yes. 20· · · Q.· And Dr. Morgan, is Corrections Today the magazine 21· ·of the American Corrections Association? 22· · · A.· Yes. 23· · · Q.· And so as I understand it then, the peer review 24· ·process would involve other correctional professionals; 25· ·is that right?

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·1· · · A.· Yes. ·2· · · Q.· This isn't a peer review process where that ·3· ·article was subjected to peer review by other research ·4· ·psychologists, right? ·5· · · A.· No, other professionals in the field, not ·6· ·necessarily psychologists. ·7· · · Q.· And the circulation of this magazine would be ·8· ·primarily to correctional administrators and officials; ·9· ·is that right? 10· · · A.· It would include that -- that group, but other 11· ·folks might access or subscribe to the journal as well. 12· · · Q.· Are you a member of the ACA? 13· · · A.· I am not. 14· · · Q.· And this piece, as I understood it, essentially 15· ·described the results of your 2016 meta-analysis; is 16· ·that right? 17· · · A.· That was one piece -- component of it. 18· · · Q.· What were the other components? 19· · · A.· Following up on an article by Dr. Metzer to 20· ·outline best practices for mental health services in 21· ·segregation. 22· · · Q.· Is Dr. Metzer the same Dr. Metzer who was 23· ·involved in the Colorado study from 2010? 24· · · A.· Yes, he was. 25· · · · · · · ·(EXPERT EXHIBIT NO. 2 MARKED.)

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·1· ·no, I don't market it. ·2· · · Q.· Do you know if correctional mental health ·3· ·professionals receive the Corrections Today magazine? ·4· · · A.· I don't know if they do or don't. ·5· · · Q.· Do you? ·6· · · A.· I do not.· I look at it -- if I can elaborate? ·7· · · Q.· Yes, please. ·8· · · A.· I look at it on occasion online to look at the ·9· ·table of contents, but I don't -- I don't subscribe to 10· ·the journal. 11· · · Q.· Dr. Morgan, looking at page 4 of your CV staying 12· ·under the Peer Reviewed Publications, I see the third 13· ·listing from the top is "Quantitative synthesis of the 14· ·effects of administrative segregation on inmates while 15· ·being published in psychology, public, policy and law." 16· ·And would this be your 2016 meta-analysis study? 17· · · A.· Yes, that's correct. 18· · · Q.· Are there any other peer reviewed publications 19· ·regarding administrative segregation in your CV? 20· · · A.· No. 21· · · Q.· The next section of your CV starting on page 9 is 22· ·"Books," correct? 23· · · A.· Yes. 24· · · Q.· And I've counted here 11 books that you have 25· ·published.· The first one is listed as the "Stepping Up,

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·1· · · A.· No. ·2· · · Q.· -- besides those three? ·3· · · · · · · ·"Invited addresses," do any of your invited ·4· ·addresses that you've listed here pertain to segregation ·5· ·in prisons? ·6· · · A.· No. ·7· · · Q.· And then if we turn to page 21 of your CV, you've ·8· ·listed research funding, right? ·9· · · A.· Correct. 10· · · Q.· Did any of these research grants pertain to 11· ·studying segregation in prison? 12· · · A.· No. 13· · · Q.· Have you ever applied for funding to perform 14· ·studies on segregation in prisons and been denied 15· ·funding? 16· · · A.· Yes. 17· · · Q.· Can you please describe that grant application to 18· ·me, please? 19· · · A.· Yeah, there's been a few.· They were all centered 20· ·around the same issue, trying to further understand and 21· ·further assess mental health effects, health effects as 22· ·well, that result from the use of segregation. 23· · · Q.· What funding sources did you apply to? 24· · · A.· National Institute of Justice. 25· · · Q.· And is that the research arm of the Department of

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·1· ·Justice? ·2· · · A.· Yes. ·3· · · Q.· Did you apply for funding from NIJ to do the ·4· ·Kansas longitudinal study that we were talking about? ·5· · · A.· The published? ·6· · · Q.· (Nodding head.) ·7· · · A.· No. ·8· · · Q.· Did you apply to NIJ to do the meta-analyses? ·9· · · A.· No. 10· · · Q.· Can you describe the research that you proposed 11· ·to NIJ in a little bit more detail? · For example, was 12· ·there a specific prison system that you planned to 13· ·study? 14· · · A.· I submitted a couple of different applications, 15· ·and it was a longitudinal study to follow people over 16· ·time.· One was proposed to be completed in Kansas. I 17· ·might have had a couple that were proposed for Kansas. 18· ·I can't remember if they were outside of Kansas or just 19· ·Kansas. 20· · · Q.· And when did you -- when was the latest decision 21· ·that you received indicating that the NIJ wouldn't be 22· ·able to fund the research? 23· · · A.· On the issue of segregation? 24· · · Q.· Yes, please. 25· · · A.· I believe my last proposal for that was 2017.

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Filed 06D/r2.1/1R9obePratgeM1o1rgoafn700P5/a2g1e/ID20#1:9

·1· · · Q.· And were you informed of the reasons why they ·2· ·decided they couldn't fund your grant application? ·3· · · A.· Yes. ·4· · · Q.· And what were those reasons? ·5· · · A.· I would have to look at the reviews.· I submit a ·6· ·number of grants.· I don't -- I don't recall.· In a ·7· ·general sense, I know there were some methodological ·8· ·concerns.· Beyond that, I don't recall the specifics of ·9· ·concerns that were raised. 10· · · Q.· Is there a peer review process when you submit a 11· ·grant for funding from the NIJ? 12· · · A.· Yes. 13· · · Q.· And so the decision not to fund would come after 14· ·the proposal had been reviewed by a group of peers? 15· · · A.· Correct. 16· · · Q.· Were the longitudinal studies that you proposed 17· ·doing reliant on self-scoring instruments? 18· · · A.· That would have been part of it, yes. 19· · · Q.· And were they generally proposed studies to look 20· ·at control groups in prison over time to assess the 21· ·effect of segregation? 22· · · A.· Yes. 23· · · Q.· If I could draw your attention to the contract 24· ·section of your CV on page 23, it looks to me that you 25· ·have a contract with the Crosby County Community

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Case 1:15-cv-00605-RLY-TAB Document 312-4 Filed 06D/r2.1/1R9obePratgeM1o2rgoaf n700P5a/2g1e/ID20#1:9 1958
·1· ·Supervision and Corrections Department to provide ·2· ·substance abuse and mental health services to Crosby ·3· ·County probationers? ·4· · · A.· Yes. ·5· · · Q.· And is that a contract that you supervise your ·6· ·students in administering those services? ·7· · · A.· Yes. ·8· · · Q.· And the services are being provided to folks who ·9· ·are out in the community, correct? 10· · · A.· Two -- there's two settings.· One is a regular 11· ·probation office, so the clients are seen in the 12· ·community.· The other is a residential treatment 13· ·facility, so the services are provided while they're in 14· ·that placement. 15· · · Q.· None of the services are provided to people in 16· ·segregation in prison, right? 17· · · A.· Correct. 18· · · Q.· If we turn to "Professional Experience and 19· ·Positions" section of your CV, Dr. Morgan, beginning on 20· ·page 24.· I see here that last year, you were appointed 21· ·to the Board of Directions (sic.) for the National 22· ·Commission on Correctional Health Care Educational 23· ·Foundation.· Can you describe what the National 24· ·Commission on Correctional Health Care is? 25· · · A.· Yes.· And actually there's a typo.· That should

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Case 1:15-cv-00605-RLY-TAB Document 312-4 Filed 06D/r2.1/1R9obePratgeM1o3rgoaf n700P5a/2g1e/ID20#1:9 1959
·1· ·say 2019.· That appointment was just in the last six ·2· ·weeks or so. ·3· · · · · · · ·The National Commission on Correctional ·4· ·Health Care provides training and resources to ·5· ·individuals involved in correctional healthcare, broadly ·6· ·speaking, to include mental health. · That's the primary ·7· ·mission. ·8· · · Q.· Would you agree that it's the preeminent ·9· ·organization for mental healthcare professionals working 10· ·in corrections? 11· · · A.· Say that one more time? 12· · · · · · · ·MS. FILLER:· Could you repeat it back? 13· · · · · · · ·COURT REPORTER:· "Would you agree that it's 14· ·the preeminent organization for mental healthcare 15· ·professionals working in corrections?" 16· · · · · · · ·THE WITNESS:· I wouldn't disagree with that. 17· · · Q.· (BY MS. FILLER:)· Is there another organization 18· ·that is also an organization of mental health 19· ·professionals working in the correction setting? 20· · · A.· Not -- not at the scale of NCCHC, but a 21· ·psychiatric -- the American Psychiatric Association, the 22· ·American Psychological Association certainly provides 23· ·resources, education, legal assistance, things of that 24· ·nature.· But that's -- that's a broader scope for those 25· ·organizations.· So if you're looking just specifically

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·1· ·at individuals providing health and mental healthcare, ·2· ·again, I wouldn't disagree that NCCHC is the preeminent ·3· ·body. ·4· · · Q.· And what is the Education Foundation? ·5· · · A.· That is a foundation that is just being ·6· ·developed, and they've just appointed the board of ·7· ·directors.· Well, actually I don't know if they've ·8· ·appointed everybody.· I know they appointed me to the ·9· ·board of directors.· The president called and asked if I 10· ·would serve and appointed me.· So it's going to be a 11· ·group -- a foundation that furthers the educational 12· ·mission of NCCHC. 13· · · Q.· And I see that since 2013 you've been a 14· ·consultant for WellPath, which, as you said, is formerly 15· ·Correct Care Solutions, in Nashville, Tennessee. · Is 16· ·that the headquarters of WellPath, Nashville? 17· · · A.· Yes. 18· · · Q.· And what is the nature of your contract with 19· ·WellPath? 20· · · A.· In 2013 when it was Correct Care, I was again 21· ·assisting them, as I mentioned earlier, with reviewing 22· ·mental health services in segregation in Kansas. · Post 23· ·that, it's been mainly providing training services to 24· ·their employers -- or employees. 25· · · Q.· And which state systems have you provided those

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·1· ·services to? ·2· · · A.· Maine and Massachusetts? ·3· · · Q.· And I see you were also at one time from 2013 to ·4· ·2015 a consultant with the State of California ·5· ·Department of Justice.· Was that in relation to the ·6· ·lawsuit regarding Pelican Bay? ·7· · · A.· Yes, it was. ·8· · · · · · · ·MS. FILLER:· Let's take a five-minute break. ·9· · · · · · · ·THE WITNESS:· Okay. 10· · · · · · · ·VIDEOGRAPHER:· We're now off the record at 11· ·10:28. 12· · · · · · · ·(Break.) 13· · · · · · · ·VIDEOGRAPHER:· We're now back on record at 14· ·10:34. 15· · · · · · · ·THE WITNESS:· May I revisit one of our 16· ·previous questions -17· · · Q.· (BY MS. FILLER:)· Yes. 18· · · A.· -- regarding authors of entries regarding 19· ·segregation in the Encyclopedia? 20· · · Q.· Uh-huh. 21· · · A.· I believe one was written by Dr. Paul Chandrow 22· ·(phon.).· I believe one was written by Dr. Jeremy Mills. 23· ·I submitted one.· And I believe there were maybe one or 24· ·two other entries, but I don't recall who authored 25· ·those.

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·1· · · Q.· How about Craig Haney, did he submit anything ·2· ·regarding segregation? ·3· · · A.· No. ·4· · · · · · · ·VIDEOGRAPHER:· Do you have your mike on? ·5· · · · · · · ·MS. FILLER:· I do not. ·6· · · Q.· (BY MS. FILLER:)· I didn't have my mike on for ·7· ·that question, so I'll repeat it.· Did Dr. Craig Haney ·8· ·submit any of the entries regarding segregation to your ·9· ·Encyclopedia? 10· · · A.· No, he did not. 11· · · Q.· Did you ask him to do so? 12· · · A.· Not on segregation.· I asked him on at least one 13· ·other entry, but not on segregation. 14· · · Q.· What entry was that? 15· · · A.· Death penalty. 16· · · Q.· Thank you for that clarification.· Dr. Morgan, if 17· ·we could look at the professional experience and 18· ·position section of your CV again, staying on page 24, 19· ·you have listed here that from 2001 to the present 20· ·you've had your own practice doing Criminal Forensic 21· ·Psychology here in Lubbock, Texas; is that right? 22· · · A.· Yes. 23· · · Q.· Is that primarily competency exams for criminal 24· ·defendants? 25· · · A.· It would include competency exams, criminal

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·1· ·responsibility and criminal risk. ·2· · · Q.· All pertaining to criminal cases, correct? ·3· · · A.· Correct. ·4· · · Q.· And that work in your private practice doing ·5· ·Criminal Forensic Psychology does not include assessing ·6· ·the effects of solitary confinement or segregation, ·7· ·correct? ·8· · · A.· Well, that would include my work on the various ·9· ·cases that I've been an expert in. 10· · · Q.· So when you list your crim -- your Criminal 11· ·Forensic Psychology practice, you're listing the work 12· ·you've done on behalf of criminal defendants, as well as 13· ·the work you've done in cases such as this one? 14· · · A.· Correct. 15· · · Q.· How many hours per week do you devote to your 16· ·private forensic practice evaluating criminal 17· ·defendants? 18· · · A.· It varies, but I've reduced that aspect of my 19· ·correctional practice.· I would say now on average two 20· ·to three hours a week, but I don't have cases every 21· ·week.· So it's a matter of taking -- I'll take six to 22· ·ten cases a year.· So I would say it averages out to two 23· ·to three hours per week. 24· · · Q.· When did you begin reducing that aspect of your 25· ·practice?

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·1· · · A.· In 2012 when I left -- I left Regional Mental ·2· ·Health and Mental Retardation, now known as Starcare, ·3· ·when I left that agency, I significantly reduced my ·4· ·number of hours per week. ·5· · · Q.· And I see where that's listed here in your CV ·6· ·that from 2002 to 2012 you were the Director of Forensic ·7· ·Services and the Director of Post-doctoral Fellowship ·8· ·Program in Forensic Psychology at the Lubbock Regional ·9· ·Mental Health Mental Retardation Center. 10· · · A.· Correct. 11· · · Q.· And what was that center? 12· · · A.· That's the local community health provider. 13· · · Q.· And I can't help but notice that in 2005 you were 14· ·a consultant for the Dallas Cowboys? 15· · · A.· I was a consultant for Brain Power, which was a 16· ·private company providing services for the Dallas 17· ·Cowboys at the NFL Combine. 18· · · Q.· That's very cool. 19· · · A.· It's a -- that's a cool item to have on the 20· ·vitae. 21· · · Q.· Was that Sports Psychology, or what was the 22· ·nature of your work there? 23· · · A.· Yes.· I signed a non-disclosure agreement, but in 24· ·a general sense, it was trying to help identify good fit 25· ·for NFL prospects.

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·1· · · Q.· So let's talk specifically about your work inside ·2· ·of prisons.· I understand that after you received your ·3· ·undergraduate degree you took a psychology internship at ·4· ·a federal prison in Leavenworth; is that right? ·5· · · A.· That was during my master's program.· That was ·6· ·the first summer actually of my master's program. ·7· · · Q.· Hence, your description of it as an internship? ·8· · · A.· Correct. ·9· · · Q.· And so were you working under the supervision of 10· ·a psychologist at that time? 11· · · A.· Yes. 12· · · Q.· And did your work at the federal prison in 13· ·Leavenworth, Kansas involve working with people in 14· ·segregation? 15· · · A.· No. 16· · · Q.· Then after you received your master's degree but 17· ·before receiving your doctorate, you started working as 18· ·a mental health professional in two state prisons in 19· ·Kansas; is that right? 20· · · A.· Yes. 21· · · Q.· And I notice that you referred to the position as 22· ·"Mental Health Professional" as opposed to 23· ·"Psychologist."· Is there a reason for that distinction? 24· · · A.· Yes, two.· Mental Health Professional was the 25· ·professional title that we all had.· And when I say "we

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·1· ·all," I mean my colleagues who were hired to provide ·2· ·mental health services.· "Psychologist" is a protected ·3· ·term, and I wasn't licensed in the State of Kansas at ·4· ·the master's or doctoral level, so I couldn't call ·5· ·myself a psychologist.· And the professional term title ·6· ·-- the professional title was Mental Health ·7· ·Professional. ·8· · · Q.· And I understand that states sometimes give ·9· ·waivers to their licensure requirements for people who 10· ·work in prisons? 11· · · A.· Yes. 12· · · Q.· Was that -- was there a waiver for you to do the 13· ·work of a psychologist but without the licensure? 14· · · A.· That's correct.· The work of a master's level 15· ·psychologist in Kansas at the time was called RMLP, 16· ·Registered Master's Level Psychologist. · I was allowed 17· ·to work at that level without pursuing the actual 18· ·licensure. 19· · · Q.· And did you begin at El Dorado prison? 20· · · A.· Yes, El Dorado. 21· · · Q.· El Dorado? 22· · · A.· Yes. 23· · · Q.· Not an obvious pronunciation. 24· · · A.· No. 25· · · Q.· How long did you work there?

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Case 1:15-cv-00605-RLY-TAB Document 312-4 Filed 06D/r2.1/1R9obePratgeM2o1rgoaf n700P5a/2g1e/ID20#1:9 1967
·1· · · A.· I worked for the department for two years. · I was ·2· ·at El Dorado all total approximately one and a half ·3· ·years. ·4· · · Q.· And was that from 1992 to 1993 period? ·5· · · A.· Yes.· I was at El Dorado for about a year and ·6· ·roughly two months, and then I was transferred to ·7· ·Winfield Correctional Facility.· And prior to leaving ·8· ·for a return to school to go for my PhD, they were going ·9· ·to need to replace me at Winfield Correctional Facility, 10· ·and I asked to go back to El Dorado to finish out my 11· ·time. 12· · · Q.· Staying with El Dorado for a moment, did you work 13· ·with a prison population in segregation? 14· · · A.· Yes, I did. 15· · · Q.· And what was your role? 16· · · A.· I was the designated mental health professional 17· ·for one of the two segregation units. 18· · · Q.· At that time, were you aware of any risks to 19· ·segregation -- any risks of segregation to prisoners' 20· ·mental health? 21· · · A.· Yes. 22· · · Q.· What were the risks that you were aware of at 23· ·that time? 24· · · A.· That -- that placing an inmate in segregation 25· ·could -- could contribute to deterioration in mental

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Case 1:15-cv-00605-RLY-TAB Document 312-4 Filed 06D/r2.1/1R9obePratgeM2o2rgoaf n700P5a/2g1e/ID20#1:9 1968
·1· ·health functioning. ·2· · · Q.· Did you serve on the segregation review board at ·3· ·El Dorado? ·4· · · A.· I did. ·5· · · Q.· You mentioned that at the earlier -- at the start ·6· ·of our deposition? ·7· · · A.· Yes. ·8· · · Q.· What was your role on the segregation review ·9· ·board? 10· · · A.· My role was to assess mental health functioning 11· ·and provide information to the review board with regard 12· ·to an inmate's mental health functioning while placed in 13· ·segregation.· The review board could then use that 14· ·information in decision-making. 15· · · Q.· Why was there a mental health perspective 16· ·included in the segregation review board's work? 17· · · A.· That was policy. 18· · · Q.· Do you agree with that policy? 19· · · A.· Yes. 20· · · Q.· And why, in your opinion, is that important? 21· · · A.· Because placing somebody in segregation presents 22· ·risk for mental health decompensation. 23· · · Q.· And so if there's evidence of mental health 24· ·decompensation, you want to be able to present that to 25· ·the segregation review board?

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Case 1:15-cv-00605-RLY-TAB Document 312-4 Filed 06D/r2.1/1R9obePratgeM2o3rgoaf n700P5a/2g1e/ID20#1:9 1969
·1· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·2· · · Q.· (BY MS. FILLER:)· Is that fair? ·3· · · A.· Yes, that's fair. ·4· · · Q.· So that they can make a decision to transfer that ·5· ·person out of segregation or provide additional mental ·6· ·health services, whatever the need may be? ·7· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·8· · · · · · · ·THE WITNESS:· Yes, there would be -- there ·9· ·would be a -- it would be to identify what -- what 10· ·interventions would be most appropriate and helpful for 11· ·the inmate. 12· · · Q.· (BY MS. FILLER:)· Would one of those 13· ·interventions possibly be transfer out of segregation? 14· · · A.· Yes. 15· · · Q.· How often did the segregation review board meet? 16· · · A.· Every 30 days. 17· · · Q.· Was it every 30 days for -18· · · A.· I'm sorry, inmates were reviewed, I believe, 19· ·every 30 days.· The board met -- I think we met every 20· ·week. 21· · · Q.· That was precisely my followup question, so thank 22· ·you for the clarification. 23· · · A.· Yes. 24· · · Q.· And did the prisoner appear before the 25· ·segregation review board?

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Document 312-4 1970

Filed 06D/r2.1/1R9obePratgeM2o4rgoafn700P5/a2g1e/ID20#1:9

·1· · · A.· That was their option.· They were presented the ·2· ·opportunity.· Some came and some did not. ·3· · · Q.· What was the average stay of prisoners in ·4· ·segregation at the El Dorado facility when you were ·5· ·there? ·6· · · A.· There were two different units, one was what we ·7· ·referred to as the short-term unit, and the other was ·8· ·the long-term.· Those weren't the official designations. ·9· ·Those were -- that was our language, and the time 10· ·different at both. 11· · · Q.· Could you give me the average stay for the 12· ·short-term unit? 13· · · A.· That included both disciplinary, administrative 14· ·segregation.· The disciplinary segregation, the average 15· ·length of stay would have been relatively short, 30 to 16· ·60 days.· The longer term, the admin segregation would 17· ·have been, I'd say, an average of a year. 18· · · Q.· And how about the long-term unit? 19· · · A.· That was -- that was substantially longer. I 20· ·would estimate an average of two to three years. 21· · · Q.· Are you aware of any changes in El Dorado's use 22· ·of segregation since you were there in 1992 to 1993? 23· · · A.· Yes. 24· · · Q.· And what are those changes? 25· · · A.· They had made some changes prior to the

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Document 312-4 1971

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·1· ·consultation work I did with Correct Care in 2013. · They ·2· ·had implemented group therapy.· They were working to ·3· ·reduce the segregation population.· They had changed the ·4· ·structure of El Dorado as a facility with the priority ·5· ·or emphasis on reducing segregation.· I don't know of ·6· ·any changes in policy. ·7· · · Q.· Do you agree that the El Dorado facility and the ·8· ·Kansas Department of Corrections was attempting to limit ·9· ·their reliance on segregation? 10· · · A.· They were when I was contracting with Correct 11· ·Care in 2013. 12· · · Q.· Going back to the 1992 to 1993 period when you 13· ·were working there, what percentage of the prisoners in 14· ·the units you worked with had a serious mental illness? 15· · · A.· I would estimate 20 to 30 percent. 16· · · Q.· And how many suicides occurred in segregation 17· ·during your tenure there? 18· · · A.· None. 19· · · Q.· And did you work in the short and long-term 20· ·segregation units or just one of those? 21· · · A.· I was the primary mental health person, 22· ·professional, designated to the short-term. · I provided 23· ·backup coverage in the long-term. 24· · · Q.· How often were you actually working in the 25· ·long-term segregation unit?

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Document 312-4 1972

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·1· · · A.· Not that often.· I would say a few times a year. ·2· · · Q.· And -·3· · · A.· No, it would be a little bit more than that. I ·4· ·don't know.· I would say eight to ten times a year. ·5· · · Q.· And you mentioned that you also worked at the ·6· ·Winfield Prison in Kansas, but for roughly six months; ·7· ·is that right? ·8· · · A.· Correct. ·9· · · Q.· And did you do any work with the population in 10· ·segregation when you were at Winfield? 11· · · A.· Yes. 12· · · Q.· And what was the average length of stay for that 13· ·segregation population? 14· · · A.· Two to three days. 15· · · Q.· And I understand you also completed a predoctoral 16· ·internship in Correctional Psychology at FCI Petersburg; 17· ·is that right? 18· · · A.· Yes. 19· · · Q.· So that would have been while you were in pursuit 20· ·of your doctoral degree? 21· · · A.· Yes.· It was an academic requirement to complete 22· ·a year long full-time APA, American Psychological 23· ·Association, accredited internship. 24· · · Q.· And was that -- was it from 1998 to 1999 roughly? 25· · · A.· Yes.

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Document 312-4 1973

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·1· · · Q.· And what was the nature of your work during that ·2· ·internship? ·3· · · A.· I served three different rotations and a one-day ·4· ·out placement.· The one-day out placement was at a ·5· ·forensic hospital, a secure forensic hospital. · So I ·6· ·would assist on competency to stand trial evaluations, ·7· ·treatment of people acquitted of -- by way of not guilty ·8· ·by reason of insanity, things of that nature. ·9· · · · · · · ·The three rotations I did inside the 10· ·institution was a general correctional mental health 11· ·rotation, a forensic rotation where we provided 12· ·competency and again criminal responsibility evaluations 13· ·for federal courts.· As part of that rotation, and that 14· ·was a four-month rotation, I also provided services to 15· ·inmates in segregation. 16· · · · · · · ·And then my third rotation was a substance 17· ·abuse treatment rotation.· And as part of that rotation, 18· ·I also provided services -- FCI Petersburg was a medium 19· ·secure facility.· They had a minimum security camp.· And 20· ·as part of the substance abuse rotation, I would provide 21· ·certain -- general mental health services out in the 22· ·minimum security camp. 23· · · Q.· Did the minimum security camp have a segregation 24· ·unit? 25· · · A.· No, it did not.

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Case 1:15-cv-00605-RLY-TAB Document 312-4 Filed 06D/r2.1/1R9obePratgeM2o8rgoaf n700P5a/2g1e/ID20#1:9 1974
·1· · · Q.· How long was the rotation during which you ·2· ·provided some treatment to prisoners in segregation? ·3· · · A.· Four months. ·4· · · Q.· And were you exclusively working in the ·5· ·segregation unit during those four months? ·6· · · A.· No. ·7· · · Q.· How many days per week did you spend in the ·8· ·segregation unit? ·9· · · A.· Probably one.· There would be times where it 10· ·would be more, but on average one. 11· · · Q.· And what was the nature of the work that you did 12· ·with the prisoners in segregation? 13· · · A.· Mental health rounds and crisis intervention. 14· · · · · · · ·MS. FILLER:· Let's take a quick five-minute 15· ·break. 16· · · · · · · ·THE WITNESS:· Okay. 17· · · · · · · ·VIDEOGRAPHER:· We're now off the record at 18· ·10:55. 19· · · · · · · ·(Break.) 20· · · · · · · ·VIDEOGRAPHER:· We're back on the record at 21· ·11:04. 22· · · Q.· (BY MS. FILLER:)· Dr. Morgan, right before the 23· ·break, we were talking about your time working in the 24· ·federal prison in Virginia as an intern during your 25· ·doctoral studies, right?

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Document 312-4 1975

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·1· · · A.· Yes. ·2· · · Q.· And you described as part of one of your ·3· ·rotations performing some mental health rounds in a ·4· ·segregation unit; is that right? ·5· · · A.· Yes. ·6· · · Q.· And did you perform rounds on everyone in the ·7· ·segregation unit or only those prisoners who were ·8· ·already on a mental health caseload? ·9· · · A.· No, when I did rounds, it was for everybody in 10· ·the segregation unit. 11· · · Q.· And was the goal of those rounds to identify 12· ·prisoners who were deteriorating in segregation 13· ·conditions? 14· · · A.· It was to identify inmates that might be 15· ·deteriorating, but also if they just had any general 16· ·mental health needs that were going unmet or unattended 17· ·to. 18· · · Q.· So as I understand it, your work working in 19· ·segregation units in prison was in Kansas between 1992 20· ·and 1993 and in a federal prison in Virginia for a 21· ·rotation between 1998 and 1999; is that right? 22· · · A.· That -- yes, that's correct, and then consulting 23· ·with Correct Care in 2013.· And then as part of my 24· ·practice here when I do forensic mental health 25· ·evaluations, many times they're at the jails and many

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Document 312-4 1976

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·1· ·be evaluating inmates that were awaiting trial a couple ·2· ·of years, and a significant portion, if not all of that, ·3· ·might have been in segregation.· Segregation in jail for ·4· ·a couple of years would be longer than some folks in ·5· ·prisons.· It would be comparable to some inmates in ·6· ·prisons, and it would be shorter than many inmates ·7· ·serving segregation time in prisons. ·8· · · · · · · ·Yeah, usually in my forensic mental health ·9· ·work, if an inmate was in segregation they'd been there 10· ·for a bit of time. 11· · · Q.· And did that forensic mental health evaluation 12· ·involve assessing the effect of segregation on their 13· ·mental health? 14· · · A.· They were forensic mental health evaluations for 15· ·purposes of a legal matter.· It would include an 16· ·assessment of mental health functioning, but not 17· ·specific to the issue of segregation. 18· · · Q.· And what we've just covered in terms of your work 19· ·in prison facilities, is that the prison experience that 20· ·you are relying on in giving opinions in this case? 21· · · A.· Actually no, I'm missing a couple of key 22· ·experiences.· My work on matters such as this.· So 23· ·touring and meeting with inmates in Pelican Bay State 24· ·Prison, touring facilities in Alabama, touring 25· ·facilities in Canada, also interviewing inmates in

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Case 1:15-cv-00605-RLY-TAB Document 312-4 Filed 06D/r2.1/1R9obePratgeM3o1rgoaf n700P5a/2g1e/ID20#1:9 1977
·1· ·Canada.· Those experiences as well. ·2· · · Q.· Let's talk about some of those cases then. ·3· · · A.· Sure. ·4· · · Q.· If you turn to Attachment B of your CV, I see ·5· ·that you've listed cases where you've testified over the ·6· ·past four years? ·7· · · A.· Yes. ·8· · · Q.· And several of these appear to pertain to ·9· ·competency evaluations, such as we were discussing. · So 10· ·State of Texas versus Rudolfo Gill and State of Texas 11· ·versus Marcus Gonzales; is that right? 12· · · A.· Correct. 13· · · Q.· And I see a couple of cases here from Canada, the 14· ·first matter Christopher Brazo? 15· · · A.· Brazeau. 16· · · Q.· Brazeau.· And the third listing, Corporation of 17· ·the Canadian Civil Liberties Association. · Were those 18· ·both cases from Canada? 19· · · A.· Yes, that's correct. 20· · · Q.· So looking at the Brazeau Case, what was your 21· ·involvement in that matter? 22· · · A.· I was retained to give expert opinion on the 23· ·issue of effects of segregation in a class action. 24· ·Yeah. 25· · · Q.· Did your assignment in that case change over

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Document 312-4 1978

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·1· ·right? ·2· · · A.· Correct. ·3· · · Q.· It goes onto say that, nevertheless, you were ·4· ·extensively cross-examined on this work and heavily ·5· ·critiqued by Drs. Grassian and Haney for your review ·6· ·article.· Do you recall being questioned about the ·7· ·meta-analysis as part of this case? ·8· · · A.· Yes, I do. ·9· · · Q.· And do you recall the critiques from Drs. 10· ·Grassian and Haney? 11· · · A.· Yes. 12· · · Q.· And then in the next paragraph, 182, the court 13· ·says, "Essentially, I do not give much weight to Dr. 14· ·Morgan's meta-analysis conclusions."· Were you aware of 15· ·the court's view of your meta-analysis? 16· · · A.· I was aware of that. 17· · · Q.· Do you know why the court decided not to give 18· ·much weight to your meta-analysis in this Brazeau Case? 19· · · A.· I do not. 20· · · Q.· And if you could flip ahead to page 53, which is 21· ·Bates labeled Vermillion 4422? 22· · · A.· I'm there. 23· · · Q.· Okay.· This section describes another expert for 24· ·the defense, a Dr. Glancy.· Do you -- are you familiar 25· ·with the work of Dr. Glancy?

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Document 312-4 1979

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·1· ·the effects of segregation and to review the expert ·2· ·reports of Dr. Kupers and Mr. Pacholke and provide any ·3· ·expert opinions in relation to those reports. ·4· · · Q.· Did your assignment change at any point? ·5· · · A.· No, it did not. ·6· · · Q.· And what methodology did you use to come to the ·7· ·conclusions expressed in your report? ·8· · · A.· Oh, a review of the literature, a review of all ·9· ·of the documents provided to me, an analysis of those 10· ·documents, and that was pretty much it.· An analysis -11· ·let me, I guess -- an analysis of those documents in 12· ·relation to my experience as well. 13· · · Q.· And as I understand it, you didn't go to the 14· ·great State of Indiana in connection with this case? 15· · · A.· No. 16· · · Q.· You did not go to any Indiana prisons? 17· · · A.· I did not. 18· · · Q.· Have you ever been inside of an Indiana prison? 19· · · A.· I have not. 20· · · Q.· And you did not interview any Indiana 21· ·correctional staff? 22· · · A.· I did not. 23· · · Q.· Did not interview any Indiana mental health 24· ·staff? 25· · · A.· I did not.

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Document 312-4 1980

Filed 06D/r2.1/1R9obePratgeM3o4rgoafn700P5/a2g1e/ID20#1:9

·1· · · Q.· And you did not interview the Defendants in this ·2· ·case, meaning Mr. Levenhagen, Mr. Brennan, Ms. Nowotski ·3· ·(phon.) or Mr. Myers (phon.)? ·4· · · A.· I did not. ·5· · · Q.· And you also did not interview the Plaintiff in ·6· ·this case, Jay Vermillion? ·7· · · A.· That's correct. ·8· · · Q.· In looking at the materials that you've listed ·9· ·here, it appears that you didn't review any literature 10· ·specific to Indiana segregation, such as Dr. Kupers' 11· ·Cold Storage Report? 12· · · A.· No. 13· · · Q.· No you did not review that literature, correct? 14· · · A.· Correct. 15· · · Q.· Sometimes there's a double negative.· I just want 16· ·to check. 17· · · · · · · ·And so as I understand your testimony and 18· ·your report, you evaluated Dr. Kupers' opinion as to the 19· ·effect of solitary confinement on the Plaintiff, Jay 20· ·Vermillion; is that right? 21· · · A.· Yes. 22· · · Q.· You did not reach your own opinion as to the 23· ·effects of segregation on the Plaintiff? 24· · · A.· Oh, that's correct, yes. 25· · · Q.· Because in order to do that, you would have

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Document 312-4 1981

Filed 06D/r2.1/1R9obePratgeM3o5rgoafn700P5/a2g1e/ID20#1:9

·1· ·wanted to interview Mr. Vermillion, right? ·2· · · A.· Absolutely. ·3· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·4· · · · · · · ·THE WITNESS:· Sorry.· Absolutely. ·5· · · Q.· (BY MS. FILLER:)· Do you agree that a mental ·6· ·health professional has to evaluate someone to reach a ·7· ·conclusion as to their mental health? ·8· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·9· · · · · · · ·THE WITNESS:· Yes. 10· · · Q.· (BY MS. FILLER:)· You wouldn't be able to testify 11· ·as to a criminal defendant's competency unless you 12· ·evaluated them in person, right? 13· · · A.· Correct. 14· · · Q.· Did you ask to evaluate Jay Vermillion? 15· · · A.· No. 16· · · Q.· Was it ever the plan for you to evaluate Mr. 17· ·Vermillion? 18· · · A.· It was discussed, but it was not the plan. 19· · · Q.· Why didn't you evaluate him? 20· · · A.· Primarily, time. 21· · · Q.· I take it that part of your critique of Dr. 22· ·Kupers' opinion in this case is that he did not have any 23· ·psychological testing done to assess the possibility of 24· ·malingering; is that fair? 25· · · A.· That's fair.

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·1· · · Q.· And why didn't you yourself perform any ·2· ·psychological testing to assess malingering of Mr. ·3· ·Vermillion? ·4· · · A.· I didn't conduct any assessment of Mr. ·5· ·Vermillion. ·6· · · Q.· And I believe your response before was primarily ·7· ·time? ·8· · · A.· Yeah, I did not have opportunity. ·9· · · Q.· Do you agree that the conditions in segregation 10· ·vary across facilities in prison systems? 11· · · A.· I do. 12· · · Q.· Do you agree that those conditions are important 13· ·in assessing the effects of segregation on prisoners? 14· · · A.· I do. 15· · · Q.· For example, do you agree that the degree of 16· ·isolation varies across prison segregation units? 17· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 18· · · · · · · ·THE WITNESS:· I do. 19· · · Q.· (BY MS. FILLER:)· And is it important in 20· ·evaluating a segregation unit to be aware of the degree 21· ·of isolation? 22· · · A.· Yes. 23· · · Q.· So why is it that you did not tour the prison 24· ·where Jay spent most of his time in segregation -25· ·sorry, Jay Vermillion?

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Document 312-4 1983

Filed 06D/r2.1/1R9obePratgeM3o7rgoafn700P5/a2g1e/ID20#1:9

·1· · · A.· I was not given any specific opinions with regard ·2· ·to Mr. Vermillion's mental health functioning, mental ·3· ·state or his psychological functioning. ·4· · · Q.· Would it have been helpful in formulating your ·5· ·opinions to inspect the prison where Mr. Vermillion ·6· ·spent most of his time in segregation? ·7· · · A.· Not the opinions as offered.· If I were to -·8· ·well, I'll stop. ·9· · · Q.· Please go ahead. 10· · · A.· If -- if I had been asked to give an opinion as 11· ·to Mr. Vermillion's mental state as it pertained to the 12· ·effects of segregation, then absolutely it would have 13· ·been important to tour the facility and interview and 14· ·evaluate Mr. Vermillion. 15· · · Q.· Do you know the name of the prison at issue in 16· ·this case? 17· · · A.· Not off the top of my head, but it's in the 18· ·records.· I was not famil -- familiar with that prison 19· ·prior to my involvement in this case. 20· · · Q.· And your report doesn't describe the segregation 21· ·unit at issue in this case, correct? 22· · · A.· Correct. 23· · · Q.· Do you know any of the unique characteristics of 24· ·the segregation unit where Mr. Vermillion was housed? 25· · · A.· No, not beyond what was reported in Dr. Kupers'

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Document 312-4 1984

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·1· ·and Mr. Pacholke's report. ·2· · · Q.· And what were the characteristics that they ·3· ·identified? ·4· · · A.· The structure, the nature of the structure of the ·5· ·environment, temperature, things of that nature. ·6· · · Q.· Temperature.· What about the structure? ·7· · · A.· The nature of doors that limits communication, ·8· ·things of that nature. ·9· · · Q.· Would that be the boxcar doors? 10· · · A.· Yes. 11· · · Q.· Do you agree that some segregation units have 12· ·open steel barred doors? 13· · · A.· I have not seen that, but yes. 14· · · Q.· You're familiar with the general idea that some 15· ·segregation units have more or less isolating door 16· ·structure? 17· · · A.· Yes, I am. 18· · · Q.· Are you familiar with the unique characteristics 19· ·of the prison where Mr. Vermillion was held with regard 20· ·to access to the outdoors? 21· · · A.· Just as described by Dr. Kupers and Mr. Poche -22· · · Q.· Pacholke? 23· · · A.· Pacholke. 24· · · Q.· And how did they describe that? 25· · · A.· That they're very limited in nature.· Basically,

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·1· · · A.· Yes. ·2· · · Q.· And would you say that you're a member of the ·3· ·school of thought that suggests that solitary ·4· ·confinement in facilities meeting basic standards has ·5· ·relatively little adverse effect? ·6· · · A.· Can you repeat that last part of that question? ·7· · · · · · · ·COURT REPORTER:· "And would you say that ·8· ·you're a member of the school of thought that suggests ·9· ·that solitary confinement in facilities meeting basic 10· ·standards has relatively little adverse effect?" 11· · · · · · · ·THE WITNESS:· I would say I'm certainly 12· ·perceived as being in that -- of that school of thought. 13· · · Q.· (BY MS. FILLER:)· Are you -- is that a false 14· ·perception in some ways? 15· · · A.· In some ways, yes, absolutely. 16· · · Q.· Can you elaborate? 17· · · A.· Yeah.· Segregation can have significant effects, 18· ·harmful effects, it's my opinion and -- that it's not 19· ·universally experienced.· And so there are some people 20· ·that will go in segregation and not experience harms. 21· ·And when you look at the totality of the population, the 22· ·harms will typically be more minor than other people 23· ·would suggest.· But that doesn't mean that segregation 24· ·can't be and isn't, in some cases, harmful, and quite 25· ·harmful at times.

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·1· · · Q.· We can put that aside.· Is your view of the harms ·2· ·of solitary confinement that you've just expressed ·3· ·outside of the mainstream? ·4· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·5· · · · · · · ·THE WITNESS:· Yes. ·6· · · Q.· (BY MS. FILLER:)· You are familiar with the ·7· ·Plaintiff's expert, Dr. Kupers, I gather? ·8· · · A.· I am. ·9· · · Q.· And you kindly mention in your report that you do 10· ·know Dr. Kupers to be a respected psychiatrist; is that 11· ·right? 12· · · A.· Yes. 13· · · Q.· And you mentioned earlier that you are including 14· ·a chapter from Dr. Kupers on imprisonment and stress in 15· ·your Encyclopedia; is that right? 16· · · A.· Yes. 17· · · Q.· And I gather that your goal as an editor of the 18· ·Encyclopedia is to collect writings from reputable 19· ·figures in the field? 20· · · A.· Most reputable. 21· · · Q.· And as an editor, you have a responsibility to 22· ·make sure that the research and views you're including 23· ·are of a high quality? 24· · · A.· Yes. 25· · · Q.· So you feel confident in the quality of Dr.

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·1· ·this be the textbook that you're citing? ·2· · · A.· Yes. ·3· · · Q.· And I want to draw your attention to the Bates ·4· ·stamp as Vermillion 5139, subsection A, "General ·5· ·strategies for detecting feigning of symptoms."· Do you ·6· ·see that there? ·7· · · A.· Yes. ·8· · · Q.· So this would be a section on general strategies ·9· ·for detectoring -- detecting malingering, right? 10· · · A.· Correct. 11· · · Q.· And it says, "A number of strategies are 12· ·available for systematically investigating response 13· ·style.· The most common and venerable method is the 14· ·clinical interview, usually consisting of a mental 15· ·status examination or other relatively unstructured 16· ·interview procedure."· Did I read that correctly? 17· · · A.· Yes. 18· · · Q.· And do you agree then that the most common and 19· ·venerable method of detecting malingering is the 20· ·clinical interview? 21· · · A.· Yes. 22· · · Q.· If you turn to the next page, this is Vermillion 23· ·5140, and it says -- middle of -- let's see, so the 24· ·second paragraph on the left hand column, the last 25· ·sentence, and I believe this is what you're referencing

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Document 312-4 1988

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·1· ·in your report, quote, "Increasingly, mental health ·2· ·professionals have concluded that because ·3· ·interview-based approaches to detecting malingering are ·4· ·of such limited utility, employment of instruments ·5· ·specifically designed for this purpose should be ·6· ·considered the standard of practice whenever there is a ·7· ·basis for suspecting over-reporting of symptoms," end ·8· ·quote.· Did I read that correctly? ·9· · · A.· Yes. 10· · · Q.· And so you agree then that the psychological 11· ·testing is necessary when there's a basis for suspecting 12· ·over-reporting? 13· · · A.· Yes. 14· · · Q.· Is psychological testing an infallible measure of 15· ·malingering? 16· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 17· · · · · · · ·THE WITNESS:· No. 18· · · Q.· (BY MS. FILLER:)· In fact, psychological tests 19· ·might indicate that a person is malingering when they 20· ·aren't, right? 21· · · A.· That can happen. 22· · · Q.· And a person could also game a psychological test 23· ·and it not come up that they were in fact malingering, 24· ·right? 25· · · · · · · ·MR. DICKMEYER:· Objection.· Form.

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·1· · · · · · · ·THE WITNESS:· That can happen, yes. ·2· · · Q.· (BY MS. FILLER:)· And Dr. Kupers has reported ·3· ·that in his clinical interview, in his experience, Mr. ·4· ·Vermillion was honestly reporting his symptoms, right? ·5· · · A.· Yes. ·6· · · Q.· And, for example, Dr. Kupers found that Mr. ·7· ·Vermillion didn't provide exaggerated descriptions of ·8· ·the symptoms that he suffered, right? ·9· · · A.· I don't recall him being that specific, but he 10· ·concluded that Mr. Vermillion was honestly responding. 11· · · Q.· Did Mr. Vermillion -- strike that. · When a 12· ·interview subject is providing very exaggerated 13· ·descriptions of psychiatric distress, that might be a 14· ·cue that they're malingering, right? 15· · · A.· That might be. 16· · · Q.· But Mr. Vermillion didn't, for example, report 17· ·that he was hearing voices indicating him -- indicating 18· ·that he should hurt himself, right? 19· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 20· ·speculation.· You can answer. 21· · · · · · · ·THE WITNESS:· Not -- not based on what was 22· ·presented in Dr. Kupers' report. 23· · · Q.· (BY MS. FILLER:)· He didn't tell Dr. Kupers that 24· ·he was seeing things like little green aliens, right? 25· · · · · · · ·MR. DICKMEYER:· Same objection.

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·1· · · · · · · ·THE WITNESS:· Dr. Kupers didn't report that, ·2· ·correct. ·3· · · Q.· (BY MS. FILLER:)· That kind of really stark ·4· ·description of psychiatric illness might have been a cue ·5· ·that Mr. Vermillion was over-reporting, right? ·6· · · A.· It could be, yes. ·7· · · Q.· And in fact, the constellation of symptoms that ·8· ·Mr. Vermillion described is quite consistent with the ·9· ·literatures, reports of the negative mental health 10· ·consequences of solitary confinement? 11· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 12· · · · · · · ·THE WITNESS:· Yeah, as described by Dr. 13· ·Kupers.· It's not inconsistent.· I would agree. 14· · · Q.· (BY MS. FILLER:)· And that would also indicate 15· ·that Mr. Vermillion was being truthful? 16· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 17· · · Q.· (BY MS. FILLER:)· In other words, he described 18· ·symptoms that make sense given the segregation context 19· ·and what we know about segregation? 20· · · A.· That could be an indication of honest responding, 21· ·yes. 22· · · Q.· And you have no reason to believe that Mr. 23· ·Vermillion was malingering, other than the fact that 24· ·everyone who's -- has a lawsuit has some incentive to 25· ·win their case, correct?

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Document 312-4 1991

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·1· · · A.· Yeah, generally speaking, I would agree with ·2· ·that. ·3· · · Q.· I just want to make sure there's no extra reason ·4· ·that you think that you've identified why Mr. Vermillion ·5· ·would have been malingering? ·6· · · A.· Yeah.· No, that's an accurate summation. ·7· · · Q.· There's no requirement that in order to be -·8· ·strike that.· There's no requirement that in order to ·9· ·have their findings accepted in a court of law that 10· ·psychiatrists who perform evaluations in a legal context 11· ·obtain psychological testing of every person who they 12· ·evaluate, is there? 13· · · · · · · ·MR. DICKMEYER:· Objection.· Calls for 14· ·speculation and calls for a legal conclusion. · Form. 15· ·You can answer. 16· · · Q.· (BY MS. FILLER:)· Dr. Morgan, I understand you're 17· ·the director of forensics here at -- Director of 18· ·Forensic Psychology, right? 19· · · A.· I'm Director of the Forensic Science Institute 20· ·and I teach in the area of Forensic Psychology. 21· · · Q.· And are you aware of the general legal context in 22· ·which mental health opinions are admitted in court? 23· · · A.· I am. 24· · · Q.· Okay.· I'll restate the question.· There is no 25· ·requirement that in order to have their opinions

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·1· ·admitted into a court of law psychiatrists who perform ·2· ·evaluations as part of a lawsuit obtain psychological ·3· ·testing of every person who they evaluate, is there? ·4· · · A.· There is no such requirement. ·5· · · · · · · ·MR. DICKMEYER:· Objection.· Form. ·6· · · · · · · ·THE WITNESS:· Sorry, David. ·7· · · Q.· (BY MS. FILLER:)· And in fact, that's not the ·8· ·standard practice for psychiatrists either, right? ·9· · · · · · · ·MR. DICKMEYER:· Objection.· Form. 10· · · · · · · ·THE WITNESS:· Actually, I don't know what 11· ·the standard practice or best practice is for a 12· ·psychiatrist being as that I'm not a psychiatrist. I 13· ·can't -- I can't opine on that. 14· · · Q.· (BY MS. FILLER:)· Fair enough.· And Dr. Morgan, 15· ·your other criticism of Dr. Kupers is that his 16· ·literature review is incomplete; is that right? 17· · · A.· Yes. 18· · · Q.· And as a result, in your view, Dr. Kupers has 19· ·overstated the risk of harm from solitary confinement, 20· ·right?· If that's not correct, please -21· · · A.· I would just change it a little bit, overstated 22· ·the potential risk of harm. 23· · · Q.· And is that going back to the universality of the 24· ·harm? 25· · · A.· Yes.

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·1· ·backwards and I apologize. ·2· · · Q.· That's okay. ·3· · · A.· So then to page 5 the Wolff, Morgan and Shi, ·4· ·2013.· On page 6, Wolff, Morgan, Shi, Fisher and ·5· ·Huening, 2011.· And then Morgan and Fisher, et al also ·6· ·on page 6, 2010.· So those were controlled studies, but ·7· ·not of an intervention.· If -- for controlled studies of ·8· ·an intervention, it would be McDonald, Morgan and Metz, ·9· ·2016. 10· · · Q.· Can you give me a page number? 11· · · A.· On page 4.· McDonald and Morgan, 2013 on page 5. 12· ·And that's -- the last one would be on page 9, Morgan, 13· ·Winterowd and Fuqua in 1999. 14· · · Q.· And so you've given us two categories of 15· ·controlled studies, right, ones involving an 16· ·intervention and ones without? 17· · · A.· Yes. 18· · · Q.· And the difference with an intervention, that the 19· ·point is to be able to distill the specific effects of 20· ·that intervention, right? 21· · · A.· Yes. 22· · · Q.· Do you hold yourself out as an expert in the 23· ·design and execution of controlled studies? 24· · · A.· No. 25· · · Q.· Do you agree, though, that it's important that

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·1· ·controlled studies are, in fact, controlled? ·2· · · A.· Yes. ·3· · · Q.· And that it's important in performing controlled ·4· ·studies to avoid contaminating the groups you're ·5· ·studying? ·6· · · A.· That's the ideal, yes. ·7· · · Q.· And by "contamination," I'm referring to exposing ·8· ·the control group to the intervention that you're ·9· ·attempting to measure? 10· · · A.· Correct. 11· · · Q.· And would you agree that contamination can 12· ·invalidate a study's results? 13· · · A.· It can. 14· · · Q.· Do you agree that it's difficult to perform 15· ·controlled studies in prison? 16· · · A.· It certainly can be, yes. 17· · · Q.· For example, you, as a researcher, cannot keep a 18· ·prisoner in segregation if the prison says that prisoner 19· ·doesn't need to be in segregation? 20· · · A.· Correct. 21· · · Q.· That would be unethical? 22· · · A.· Yes, it would. 23· · · Q.· And the research that's developed on solitary 24· ·confinement has not, in fact, relied on control studies 25· ·because of the difficulties in conducting such studies

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·1· ·in prison, right? ·2· · · A.· Yes, that's one of the primary issues. ·3· · · Q.· So let's talk about the Colorado study. · You've ·4· ·described it as the gold standard, right? ·5· · · A.· Yes. ·6· · · Q.· The Colorado study studied prisoners in the ·7· ·Colorado State Prison System, right? ·8· · · A.· Yes. ·9· · · Q.· There was no -- as the name suggests, no 10· ·examination of prisoners outside of Colorado, right? 11· · · A.· Correct. 12· · · Q.· And the -- it was a longitudinal study, I 13· ·understand? 14· · · A.· Yes. 15· · · Q.· And so the study lasted for about one year; is 16· ·that right? 17· · · A.· Yes. 18· · · Q.· And the study did not involve clinical 19· ·interviews, correct? 20· · · A.· Correct. 21· · · Q.· And there was no part of the study that looked at 22· ·the medical records of the prisoners, right? 23· · · A.· I believe they looked at the medical records but 24· ·did not report that in the results. 25· · · Q.· So the results of the Colorado study did not

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·1· · · Q.· And are you aware that some of the people who ·2· ·were involved in performing that study have since said ·3· ·that it's been taken out of context? ·4· · · A.· Yes. ·5· · · Q.· Can you describe that -- their views on that ·6· ·subject? ·7· · · A.· Yeah, that some of the authors are concerned that ·8· ·their study is being viewed as a validation of the use ·9· ·of segregation, and that was not the intent, nor their 10· ·conclusions. 11· · · Q.· The most serious critique of the Colorado study 12· ·is that there was fatal contamination of the control 13· ·group, right? 14· · · A.· I would agree. 15· · · Q.· Because if that were true, there would be real 16· ·questions as to whether the data had any value, right? 17· · · A.· It certainly could, yes. 18· · · Q.· And Dr. Haney in his 2018 article has said that 19· ·every prisoner in the 2010 Colorado study had been 20· ·exposed to a severe form of segregation right at the 21· ·start immediately before the study began, right? 22· · · A.· I don't remember exactly how he phrased it or 23· ·what he said, but I know the contamination was a 24· ·criticism. 25· · · Q.· Are you familiar with how the control group and

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·1· ·the intervention group were identified? ·2· · · A.· Yeah, I mean, generally speaking. ·3· · · Q.· Can you describe for us the basic approach to the ·4· ·study? ·5· · · A.· They pulled participants from general population, ·6· ·psychiatric care unit and segregation to participate in ·7· ·the study. ·8· · · Q.· But are you aware of how they identified those ·9· ·groups?· In other words, it wasn't random, right? 10· · · A.· Right.· Right.· I'm -- I think I need to look at 11· ·it to refresh my memory on the actual selection 12· ·procedure.· But yeah, I reviewed it. 13· · · Q.· So as I understand it, they looked at prisoners 14· ·who were in the disciplinary process, and those 15· ·prisoners would be held in a form of segregation, either 16· ·awaiting the disciplinary hearing or after. · And then 17· ·some prisoners would come out of those disciplinary 18· ·hearings and go to general population, some prisoners 19· ·would come out of that process and go to administrative 20· ·segregation, and that's how they identified the groups. 21· ·Does that sound right? 22· · · A.· That -- that sounds right. 23· · · Q.· So Dr. Haney's point in his 2018 article is that 24· ·both of those groups would have been in segregation 25· ·right before the study started then?

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·1· ·article, do you see that in this section, generally he's ·2· ·describing this issue of the initial contamination ·3· ·problem? ·4· · · A.· Yes, I see it. ·5· · · Q.· And on 382 in the second to last paragraph, he ·6· ·says, quote, "It is impossible to know whether or how ·7· ·control group prisoners were damaged by the time spent ·8· ·in punitive segregation and whether those effects ·9· ·continued throughout the study," end quote. · Do you 10· ·agree with that? 11· · · A.· I don't agree with the basic premise. · Do I agree 12· ·that -- that Dr. Haney could make the argument that that 13· ·invalidates the study?· Sure.· But I don't agree that it 14· ·does.· I don't believe that that contaminates the 15· ·samples and the groups when looking at the conditions of 16· ·long-term administrative segregation. · The psychiatric 17· ·population, I don't know that we know they had the same 18· ·level of contamination.· I'll have to -- I have to look 19· ·at it. 20· · · · · · · ·Again, they were choosing inmates from the 21· ·psychiatric unit that had behavioral problems, but I 22· ·don't know that they were in disciplinary segregation. 23· ·I would have to review. 24· · · Q.· So -25· · · A.· And if not --

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Document 312-4 1999

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·1· ·population control group participants spent time in ·2· ·segregation or other non-general population setting ·3· ·during the study, roughly two-thirds of the group? ·4· · · A.· Correct. ·5· · · Q.· And he found that half of the administrative ·6· ·segregation of prisoners, 60 -- about half, 62 of 127, ·7· ·spent an unspecified period of time in general ·8· ·population or elsewhere during the study? ·9· · · A.· Yes, that was his finding. 10· · · Q.· And the data that was aggregated by the Colorado 11· ·researchers did not take into account the contamination? 12· · · A.· They analyzed that data. 13· · · Q.· How so? 14· · · A.· See if I can find it.· It will take me a second 15· ·to find it in the document. 16· · · Q.· Sure.· Maybe I can restate the question, and if 17· ·you'd like to look at it, that's just fine too.· But my 18· ·understanding is that the data from the participants was 19· ·aggregated whether or not there had been contamination. 20· ·In other words, they didn't exclude the people who had 21· ·cross-contamination -22· · · A.· Correct. 23· · · Q.· -- from the aggregate data results? 24· · · A.· Correct, they did not exclude. 25· · · Q.· Another problem with the Colorado data is that

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·1· ·determine the effect of segregation on prisoners' ·2· ·health? ·3· · · A.· Yes, and with a particular interest in the ·4· ·magnitude of that effect. ·5· · · Q.· Would you agree that the accuracy of your ·6· ·meta-analysis is only as good as the studies analyzed? ·7· · · A.· I would agree. ·8· · · Q.· As I understand it, there were two meta-analyses ·9· ·included in this 2016 piece, correct? 10· · · A.· That is correct. 11· · · Q.· There was Research Synthesis 1 and Research 12· ·Synthesis 2? 13· · · A.· Correct. 14· · · Q.· And is yours RS-2? 15· · · A.· That's right. 16· · · Q.· And Paul Gendreau's is RS-1? 17· · · A.· Yes. 18· · · Q.· And Paul Gendreau is a Canadian researcher; is 19· ·that right? 20· · · A.· Yes, he is. 21· · · Q.· And he's also worked for the Canadian Prison 22· ·System, correct? 23· · · A.· He did for a period of time, yes. 24· · · Q.· And both of your meta-analyses ruled out the vast 25· ·majority of the research on solitary confinement and did

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·1· · · Q.· So if there's an error in terms of the sample ·2· ·size, then that would effect the weight, which would ·3· ·effect the meta-analyses, right? ·4· · · A.· If there was an error, yes. ·5· · · Q.· And there's another criticism of the Zinger ·6· ·study, right? ·7· · · A.· Yeah, there's been in a couple. ·8· · · Q.· Is one of them that the Zinger study includes ·9· ·people who are in segregation voluntarily? 10· · · A.· Yes. 11· · · Q.· Do you agree that whether a prisoner is in 12· ·solitary voluntarily or involuntarily could effect that 13· ·prisoner's experience in their confinement? 14· · · A.· It certainly could. 15· · · Q.· And by the end of the Zinger study, which lasted 16· ·60 days, only ten people were involuntarily in 17· ·segregation, correct? 18· · · A.· That sounds right. 19· · · Q.· And so approximately 80 percent of the prisoners 20· ·in the segregation group had left by the end of 60 days? 21· · · A.· Yes.· Again, that sounds correct. 22· · · Q.· Meaning that the experience of the prisoners who 23· ·had left segregation were not included in the Zinger 24· ·analysis? 25· · · A.· I'm sorry, say that again?

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·1· · · · · · · ·VIDEOGRAPHER:· We're now back on the record ·2· ·at 3:10. ·3· · · Q.· (BY MS. FILLER:)· Dr. Morgan, another of Dr. ·4· ·Haney's criticism of the meta-analyses is that some of ·5· ·the studies included aren't very probative one way or ·6· ·the other, right? ·7· · · A.· Right. ·8· · · Q.· And he noted that the Cloyes, is it, 2006 study ·9· ·-10· · · A.· Yes. 11· · · Q.· -- are you familiar with that study? 12· · · A.· Yes. 13· · · Q.· That it did not actually compare segregation 14· ·populations with general population prisoners? 15· · · A.· Right. 16· · · Q.· Is Dr. Haney correct about that? 17· · · A.· Can I pull up the Cloyes? 18· · · Q.· Yeah, it was -- so -19· · · A.· I believe it's right here. 20· · · Q.· You've got a tab there.· Yeah, it's 3651, 21· ·Vermillion 3651.· And if you look at the page describing 22· ·the method, it's Vermillion 3655.· And it says that the 23· ·participants included inmates housed in three SMUs at 24· ·the time of the study.· And an SMU, of course, is a 25· ·special or secure management unit, right?

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·1· · · Q.· That's all right.· We're on the same page now. ·2· ·And then I wanted to ask as well about the Walters 1963 ·3· ·study, which you've included.· This is at Vermillion ·4· ·3888 or tab 15.· This study included all volunteers, ·5· ·right, the prisoners volunteered to participate in the ·6· ·study? ·7· · · A.· That does sound right, but let me just ·8· ·doublecheck. ·9· · · Q.· I can point you to -- it's Vermillion 3888, under 10· ·"Method, 40 long-term prisoners volunteered for a 11· ·study." 12· · · A.· Yes, correct. 13· · · Q.· And we've already discussed that the nature of 14· ·participation as voluntary could have an effect on 15· ·prisoners' experience of those conditions? 16· · · A.· It could. 17· · · Q.· And this study also only studied the effects of 18· ·solitary confinement over a period of four days, 19· ·correct? 20· · · A.· Correct. 21· · · Q.· Would you agree that that's very different than 22· ·solitary confinement for a period of four years? 23· · · A.· I would agree. 24· · · Q.· And if I could direct your attention to the 25· ·Ecclestone 1974 study, which is Vermillion 3955?

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·1· · · A.· Yes. ·2· · · Q.· Are you familiar with this study as well? ·3· · · A.· Yes. ·4· · · Q.· And this study, as I understand it, was also all ·5· ·volunteers?· If I could point you to -·6· · · A.· Potential volunteers. ·7· · · Q.· Yeah. ·8· · · A.· Yes. ·9· · · Q.· "Methods."· All volunteers, right? 10· · · A.· Correct. 11· · · Q.· And the maximum stay in segregation that was 12· ·looked at in this study was ten days? 13· · · A.· I don't doubt that.· I don't recall that, but I 14· ·don't doubt it. 15· · · Q.· And again, we would expect to see different 16· ·effects of ten days of solitary confinement versus four 17· ·years of solitary confinement? 18· · · A.· We could. 19· · · Q.· In your report, you opine that -- and this is 20· ·your words, "the use of restrictive housing, such as AS, 21· ·will, on average, produce mild to moderate health and 22· ·mental health effects comparable to the effects of 23· ·incarceration as a general matter," end quote.· Is that 24· ·correct? 25· · · A.· That's correct.

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·1· · · Q.· And so your point is that that is not so ·2· ·different from the effect sizes that you've identified ·3· ·in your RS-2 study? ·4· · · A.· Correct. ·5· · · Q.· So for example, mood and emotion in RS-2 had an ·6· ·effect size of .55? ·7· · · A.· Right. ·8· · · Q.· Which is a moderate effect? ·9· · · A.· Right. 10· · · Q.· Which would indicate that people in segregation 11· ·had negative effects on their mood or emotion? 12· · · A.· Correct. 13· · · Q.· And then your -- and that is itself derived from 14· ·comparing populations in segregation to populations in 15· ·general population? 16· · · A.· Correct. 17· · · Q.· And then you're comparing that to a study from 18· ·Bonta and Gendreau, a totally different study that 19· ·wasn't included in your meta-analyses? 20· · · A.· Right. 21· · · Q.· The Bonta and Gendreau study, that study was a 22· ·study of the effects of overcrowded prisons on 23· ·prisoners' psychological well-being, right? 24· · · A.· That was one aspect of it, yes.· They looked at a 25· ·few variables, but the effect size I pulled there was

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·1· ·from the overcrowding data. ·2· · · Q.· So what their goal was in establishing this ·3· ·effect size was to isolate a variable, right? ·4· · · A.· Yes. ·5· · · Q.· And the variable in that study was overcrowded ·6· ·prisons? ·7· · · A.· Correct. ·8· · · Q.· Which some prisons are overcrowded, but not all ·9· ·prisons are overcrowded? 10· · · A.· Right. 11· · · Q.· So we're comparing the effect sizes of the harms 12· ·of segregation to the effect sizes of the harms of 13· ·living in an overcrowded prison? 14· · · A.· That would be fair. 15· · · Q.· And I noticed when I was reviewing your report in 16· ·the CCLA Case that you included a similar bar graph in 17· ·that case report? 18· · · A.· Yes. 19· · · Q.· Do you recall submitting that report? 20· · · A.· Yes. 21· · · Q.· And that bar graph had another bar from a 22· ·different study for physical health? 23· · · A.· Right. 24· · · Q.· And that bar was referencing the Heigel study, 25· ·correct?

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·1· · · A.· Correct. ·2· · · Q.· And that is at tab 3 of the big compendium here, ·3· ·Expert Exhibit 5 -- no, Expert Exhibit 6. · Should be the ·4· ·third tab there (indicating). ·5· · · A.· Oh, there we go. ·6· · · Q.· Can you read the Bates number there for us? ·7· · · A.· The number at the bottom?· Vermillion? ·8· · · Q.· Uh-huh. ·9· · · A.· 003571. 10· · · Q.· Thank you.· And do you mind also referring back 11· ·to the report that you prepared for the CCLA Case? · It 12· ·was Expert Exhibit 4.· I know I told you to not worry 13· ·about the order, but -- there you go. 14· · · A.· There (indicating). 15· · · Q.· Thank you.· So the bar chart that you submitted 16· ·in that case is at Vermillion 4130. · Do you have it 17· ·there? 18· · · A.· Yes, I have it. 19· · · Q.· And so here you have your RS-1 effect sizes, the 20· ·Bonta and Gendreau effect size regarding overcrowding, 21· ·and then you had the Heigel 2010 study, which showed 22· ·.18, right? 23· · · A.· Right. 24· · · Q.· And the Heigel bar was representing physical 25· ·health, correct?

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·1· · · A.· Correct. ·2· · · Q.· And did you later learn that there was an error ·3· ·in the inclusion of this bar? ·4· · · A.· Yes, had a computational error. ·5· · · Q.· Okay.· Can you describe that computational error? ·6· · · A.· I had inverted -- I forget the exact data point ·7· ·or what, but I had it inverted. ·8· · · Q.· So as I understand, and you can tell me if this ·9· ·sounds right, but in this case you had looked at the 10· ·Heigel study, which measured physical health and given 11· ·it a negative effect size of .18 -- or negative is maybe 12· ·not the correct term, but negative health outcomes were 13· ·associated with general incarceration at a .18 effect 14· ·size? 15· · · A.· Right.· Right. 16· · · Q.· And that actually, that was a mistake and it 17· ·should have been negative .18? 18· · · A.· Yes, they improved in terms of their physical 19· ·health functioning. 20· · · Q.· And so when we compare that study's effect size 21· ·to, for example, your chart here of physical health, 22· ·which is .37 effect size from your study, that would 23· ·tend to show that there was a major difference in the 24· ·physical health of prisoners in segregation as opposed 25· ·to the physical health of prisoners in general

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·1· ·about the same is what you're going to get when you take ·2· ·an inmate from general population and put them in ·3· ·segregation. ·4· · · Q.· Are the populations that you're comparing, using ·5· ·for your comparison, the general population here at the ·6· ·Bonta and Gendreau, generally, are you accounting for ·7· ·the fact that those folks might be in segregation at ·8· ·some point? ·9· · · A.· No. 10· · · Q.· Have you published in a peer review journal your 11· ·work to compare the effect sizes of segregation that you 12· ·found in your 2016 meta-analyses with the effect sizes 13· ·of general incarceration on prisoners' well-being? 14· · · A.· If I did, it would be in that Corrections Today 15· ·article.· And I don't remember, I think we published a 16· ·figure, but I don't remember if I had the general pop 17· ·figure.· I'd have to look at it.· I think it's in here. 18· · · Q.· It's okay.· That would be the only one that 19· ·you can think of? 20· · · A.· That would be the only one, yes. 21· · · Q.· Okay.· Your 2016 meta-analyses study posits that 22· ·"It could be that prisoners who suffer the most in 23· ·segregation do so because of a culture of harm."· Do you 24· ·recall that? 25· · · A.· Yes.

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·1· ·They're asking to be in segregation because there's a ·2· ·threat to them in general population, and they need to ·3· ·be in segregation for safety? ·4· · · A.· Sometimes.· Not always, but sometimes. ·5· · · Q.· So for those prisoners, they might improve in ·6· ·functioning because they're not at immediate risk of ·7· ·being killed? ·8· · · A.· Or harmed.· For those prisoners, that certainly ·9· ·could be the case. 10· · · Q.· And then with regards to your clinical 11· ·experience, are you describing a time in Kansas?· What 12· ·clinical experience have you had where you've witnessed 13· ·a prisoner who has improved their mental health 14· ·functioning while they were in segregation? 15· · · A.· Most specifically, my time in Kansas. 16· · · Q.· And that was the period we talked about in the 17· ·early '90s? 18· · · A.· Yes. 19· · · Q.· You -- we've referred to this at various times 20· ·today, but your report cites a recent Kansas study with 21· ·the lead author Chadick.· It was -- it came out in 2018, 22· ·right? 23· · · A.· Yes. 24· · · Q.· And that study relied entirely on self-scoring, 25· ·correct?

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·1· · · A.· Yes. ·2· · · Q.· Did not include clinical evaluations? ·3· · · A.· Correct. ·4· · · Q.· The prisoners completed a psychological ·5· ·instrument called the MCMI-3? ·6· · · A.· Yes. ·7· · · Q.· And as I understand it, that's a 175 question ·8· ·true/false psychological instrument? ·9· · · A.· That's correct. 10· · · Q.· And in the Chadick study, you had a relatively 11· ·small sample size of 50; is that right? 12· · · A.· I think it was 40.· Maybe it was 50.· It was 40 13· ·or 50. 14· · · Q.· Fair enough. 15· · · A.· It was small. 16· · · Q.· And the study noted that the -- it was a small 17· ·sample size because there wasn't enough funding? 18· · · A.· Yeah, it was a student project. 19· · · Q.· Did you or the study authors ever apply for 20· ·funding for that study? 21· · · A.· No. 22· · · Q.· And did the study evaluate prisoners in some of 23· ·the same segregation units that you yourself had worked 24· ·in when you were a mental health professional in Kansas? 25· · · A.· That I don't know.· That's a -- I never thought

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·1· ·of that.· That's a -- I don't know.· I would have to ask ·2· ·the lead author. ·3· · · Q.· And the study did find that "AS was associated ·4· ·with higher scores, which would indicate more severe ·5· ·symptomatology, on every scale as compared to general ·6· ·population, including anxiety, somatoform disorder, ·7· ·dysnea, PTSD and major depression"? ·8· · · A.· Let me look.· Is that -·9· · · Q.· Do you have the Chadick? 10· · · A.· I don't know if that's an exhibit. 11· · · · · · · ·(EXPERT EXHIBIT NO. 19 MARKED.) 12· · · Q.· (BY MS. FILLER:)· Dr. Morgan you've just been 13· ·passed Exhibit 19.· Is this the Chadick study that we've 14· ·been discussing? 15· · · A.· Yes. 16· · · Q.· And if I could draw your attention to Vermillion 17· ·4533, please? 18· · · A.· Yes. 19· · · Q.· And under "Results," do you see where there was a 20· ·significant effect on housing location on the scores for 21· ·the measures that I've just indicated? 22· · · A.· Yes. 23· · · Q.· And this article, the Chadick piece, also 24· ·recommends a series of interventions or best practices, 25· ·correct?

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·1· · · A.· Yes, we did. ·2· · · Q.· And one of them is the Stepping Up, Stepping Out ·3· ·Program that you yourself developed? ·4· · · A.· Yes, we included that simply as an example of ·5· ·something that somebody might use in intervening. ·6· · · Q.· I want to make sure that I understand your ·7· ·criticism of Mr. Pacholke's report, if I could? ·8· · · A.· Yes. ·9· · · Q.· Mr. Pacholke, you understand that he's a longtime 10· ·corrections professional, right? 11· · · A.· Yes. 12· · · Q.· And your work in corrections has always been in 13· ·the mental health sector, right? 14· · · A.· That's correct. 15· · · Q.· You have not worked as a prison administrator or 16· ·a prison official, correct? 17· · · A.· Correct. 18· · · Q.· And I take it you do not hold yourself out as an 19· ·expert in correctional practices? 20· · · A.· Correct. 21· · · Q.· And your criticism of Mr. Pacholke is that he 22· ·says prison administrators should have let Mr. 23· ·Vermillion participate in a stepdown program.· Because 24· ·you say it's an unfair criticism, stepdown programs 25· ·weren't best practices at the relevant period?

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·1· · · Q.· And you've described in your report an anonymous ·2· ·prisoner.· You call him, I think, Prisoner A? ·3· · · A.· Yes. ·4· · · Q.· And I've reviewed a few of your reports in other ·5· ·cases now, and I feel like I've seen that description ·6· ·also attributed to a prisoner named Jonathan? ·7· · · A.· Yes. ·8· · · Q.· And is that just the same person but a different ·9· ·way of anonymizing the prisoner for purposes of 10· ·confidentiality? 11· · · A.· That's correct. 12· · · Q.· And I read in one of the depositions, I believe, 13· ·that Jonathan, or Prisoner A, was a real prisoner who 14· ·you evaluated in Pelican Bay? 15· · · A.· Correct. 16· · · Q.· And how many prisoners did you evaluate in 17· ·Pelican Bay again? 18· · · A.· Somewhere between 40 and 50. 19· · · Q.· And was Jonathan the only prisoner who -- well, 20· ·strike that.· Some prisoners, I assume, from that sample 21· ·described negative mental health effects from 22· ·segregation? 23· · · A.· Correct. 24· · · Q.· And some of those negative mental health effects 25· ·were severe, some were moderate, and Jonathan would have

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·1· ·been in the low end? ·2· · · A.· Yes. ·3· · · Q.· Was Jonathan the prisoner who had the least ·4· ·negative effects from segregation? ·5· · · A.· I don't recall specifically.· He was not one of ·6· ·the class members named.· And relative to them, yes. ·7· ·Relative to the others, I would need to go back and look ·8· ·at my -- my notes on that. ·9· · · Q.· One moment.· I see you've already got it? 10· · · A.· Yes. 11· · · Q.· Expert Exhibit 5, which is the deposition, or as 12· ·the Canadians call it, cross-examination transcripts, 13· ·from the Canadian Civil Liberties Association, the CCLA 14· ·Case? 15· · · A.· Yes. 16· · · Q.· And if I could draw your attention to Vermillion 17· ·4341, which is page -18· · · A.· I'm there. 19· · · Q.· Okay.· And you were asked at line 13, quote, "Dr. 20· ·Morgan, how does Jonathan, the Jonathan example, relate 21· ·to the other 150 you interviewed?" · Answer, "And just to 22· ·be clear, it was approximately 150. · I don't recall the 23· ·exact number, somewhere around 130 to 150. · Jonathan 24· ·reported less concerns."· And then goes on to say on the 25· ·next page that essentially, "He expressed no concerns

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·1· ·and no significant distress, whereas the majority of ·2· ·other inmates I interviewed expressed distress and ·3· ·concern resulting from their segregation placement." ·4· ·Does that refresh your recollection some? ·5· · · A.· Yes, it does.· Yeah. ·6· · · Q.· And is this deposition testimony that you gave in ·7· ·the CCLA Case regarding Jonathan accurate? ·8· · · A.· Yes, it's accurate. ·9· · · · · · · ·MS. FILLER:· No further questions at this 10· ·time.· Thank you. 11· · · · · · · ·THE WITNESS:· Thank you. 12· · · · · · · ·MR. DICKMEYER:· I don't have any questions 13· ·at this time.· So we're off the record. 14· · · · · · · ·VIDEOGRAPHER:· We're off the record at 4:23. 15· · · · · · · ·(End of video part of depo.) 16· · · · · · · ·MR. DICKMEYER:· Would you like an 17· ·opportunity to read and sign the transcript or waive? 18· · · · · · · ·THE WITNESS:· Whichever.· I mean, I don't 19· ·know.· I don't think I've ever been asked that. 20· · · · · · · ·MR. DICKMEYER:· We'll take the signature. 21· ·You can send it to our office, and I'll get it over to 22· ·Dr. Morgan. 23· · · · · · · ·(Deposition concluded.) 24· · · · · · · ·(Signature of witness required.) 25

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EXHIBIT 5 Brazeau v. Canada (2019)
excerpts

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EXHIBIT 6 CCLA v. The Queen (Superior Court, 2017)
excerpts

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EXHIBIT 7 CCLA v. The Queen (Court of
Appeals) (2019) excerpts

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EXHIBIT 8 "Questioning Solitary Confinement"
in Corrections Today

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EXHIBIT 9 Corrections Today web page

6/20/201C9ase 1:15-cv-00605-RLY-TAB Document 312-C9orreFctiiloensdTo0d6ay/21/19 Page 2 of 3 PageID #: 2050
Celebrating More Than 149 Years of Global Excellence
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EXHIBIT 10
Morgan et al., "Quantitative Syntheses of the Effects of Administrative Segregation on Inmates' Well-Being"

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 List of Exhibits Ex. 11-Haney Ex. 12-Specialty Guidelines for Forensic Psychology Ex. 13-Kupers Report Ex. 14-Heilburn, et al., (1990) – An MMPI-based empirical model of malingering a Ex. 15-Melton, et al., Ex. 16-BCCLA v. Canada (2018) Ex. 17-Colorado Study Ex. 18-Smith (2011) Ex. 19-Grassian & Kupers Ex. 20-Zinger, et al., [NEW] – (2001) The psychological effects of 60 days in A

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EXHIBIT 11 Craig Haney, "The Psychological Effects of Solitary Confinement"

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EXHIBIT 12
Specialty Guidelines
for Forensic Psychology
(excerpts)

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Specialty Guidelines for Forensic Psychology
American Psychological Association

In the past 50 years forensic psychological practice has expanded dramatically. The American Psychological Association (APA) has a division devoted to matters of law and psychology (APA Division 41, the American Psychology–Law Society), a number of scientiﬁc journals devoted to interactions between psychology and the law exist (e.g., Law and Human Behavior; Psychology, Public Policy, and Law; Behavioral Sciences & the Law), and a number of key texts have been published and undergone multiple revisions (e.g., Grisso, 1986, 2003; Melton, Petrila, Poythress, & Slobogin, 1987, 1997, 2007; Rogers, 1988, 1997, 2008). In addition, training in forensic psychology is available in predoctoral, internship, and postdoctoral settings, and APA recognized forensic psychology as a specialty in 2001, with subsequent recertiﬁcation in 2008.
Because the practice of forensic psychology differs in important ways from more traditional practice areas (Monahan, 1980) the “Specialty Guidelines for Forensic Psychologists” were developed and published in 1991 (Committee on Ethical Guidelines for Forensic Psychologists, 1991). Because of continued developments in the ﬁeld in the ensuing 20 years, forensic practitioners’ ongoing need for guidance, and policy requirements of APA, the 1991 “Specialty Guidelines for Forensic Psychologists” were revised, with the intent of beneﬁting forensic practitioners and recipients of their services alike.
The goals of these Specialty Guidelines for Forensic Psychology (“the Guidelines”) are to improve the quality of forensic psychological services; enhance the practice and facilitate the systematic development of forensic psychology; encourage a high level of quality in professional practice; and encourage forensic practitioners to acknowledge and respect the rights of those they serve. These Guidelines are intended for use by psychologists when engaged in the practice of forensic psychology as described below and may also provide guidance on professional conduct to the legal system and other organizations and professions.
For the purposes of these Guidelines, forensic psychology refers to professional practice by any psychologist working within any subdiscipline of psychology (e.g., clinical, developmental, social, cognitive) when applying the scientiﬁc, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, and administrative matters. Application of the Guidelines does not depend on the practitioner’s typical areas of practice or expertise, but rather, on the service provided in the case at hand. These Guidelines apply in all matters in which psychologists provide expertise to judicial, administrative, and

educational systems including, but not limited to, examining or treating persons in anticipation of or subsequent to legal, contractual, or administrative proceedings; offering expert opinion about psychological issues in the form of amicus briefs or testimony to judicial, legislative, or administrative bodies; acting in an adjudicative capacity; serving as a trial consultant or otherwise offering expertise to attorneys, the courts, or others; conducting research in connection with, or in the anticipation of, litigation; or involvement in educational activities of a forensic nature.
Psychological practice is not considered forensic solely because the conduct takes place in, or the product is presented in, a tribunal or other judicial, legislative, or administrative forum. For example, when a party (such as a civilly or criminally detained individual) or another individual (such as a child whose parents are involved in divorce proceedings) is ordered into treatment with a practitioner, that treatment is not necessarily the practice of forensic psychology. In addition, psychological testimony that is solely based on the provision of psychotherapy and does not include psycholegal opinions is not ordinarily considered forensic practice.
For the purposes of these Guidelines, forensic practitioner refers to a psychologist when engaged in the practice of forensic psychology as described above. Such professional conduct is considered forensic from the time the practitioner reasonably expects to, agrees to, or is legally mandated to provide expertise on an explicitly psycholegal issue.
The provision of forensic services may include a wide variety of psycholegal roles and functions. For example, as
This article was published Online First October 1, 2012. These Specialty Guidelines for Forensic Psychology were developed
by the American Psychology–Law Society (Division 41 of the American Psychological Association [APA]) and the American Academy of Forensic Psychology. They were adopted by the APA Council of Representatives on August 3, 2011.
The previous version of the Guidelines (“Specialty Guidelines for Forensic Psychologists”; Committee on Ethical Guidelines for Forensic Psychologists, 1991) was approved by the American Psychology–Law Society (Division 41 of APA) and the American Academy of Forensic Psychology in 1991. The current revision, now called the “Specialty Guidelines for Forensic Psychology” (referred to as “the Guidelines” throughout this document), replaces the 1991 “Specialty Guidelines for Forensic Psychologists.”
These guidelines are scheduled to expire August 3, 2021. After this date, users are encouraged to contact the American Psychological Association Practice Directorate to conﬁrm that this document remains in effect.
Correspondence concerning these guidelines should be addressed to the Practice Directorate, American Psychological Association, 750 First Street, NE, Washington, DC 20002-4242.

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© 2012 American Psychological Association 0003-066X/12/$12.00 Vol. 68, No. 1, 7–19 DOI: 10.1037/a0029889

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maintain integrity by examining the issue or problem at hand from all reasonable perspectives and seek information that will differentially test plausible rival hypotheses.
Guideline 9.02: Use of Multiple Sources of Information
Forensic practitioners ordinarily avoid relying solely on one source of data, and corroborate important data whenever feasible (AERA, APA, & NCME, in press). When relying upon data that have not been corroborated, forensic practitioners seek to make known the uncorroborated status of the data, any associated strengths and limitations, and the reasons for relying upon the data.
Guideline 9.03: Opinions Regarding Persons Not Examined
Forensic practitioners recognize their obligations to only provide written or oral evidence about the psychological characteristics of particular individuals when they have sufﬁcient information or data to form an adequate foundation for those opinions or to substantiate their ﬁndings (EPPCC Standard 9.01). Forensic practitioners seek to make reasonable efforts to obtain such information or data, and they document their efforts to obtain it. When it is not possible or feasible to examine individuals about whom they are offering an opinion, forensic practitioners strive to make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony.
When conducting a record review or providing consultation or supervision that does not warrant an individual examination, forensic practitioners seek to identify the sources of information on which they are basing their opinions and recommendations, including any substantial limitations to their opinions and recommendations.
10. Assessment
Guideline 10.01: Focus on Legally Relevant Factors
Forensic examiners seek to assist the trier of fact to understand evidence or determine a fact in issue, and they provide information that is most relevant to the psycholegal issue. In reports and testimony, forensic practitioners typically provide information about examinees’ functional abilities, capacities, knowledge, and beliefs, and address their opinions and recommendations to the identiﬁed psycholegal issues (American Bar Association & American Psychological Assocation, 2008; Grisso, 1986, 2003; Heilbrun, Marczyk, DeMatteo, & Mack-Allen, 2007).
Forensic practitioners are encouraged to consider the problems that may arise by using a clinical diagnosis in some forensic contexts, and consider and qualify their opinions and testimony appropriately.
Guideline 10.02: Selection and Use of Assessment Procedures
Forensic practitioners use assessment procedures in the manner and for the purposes that are appropriate in light of

the research on or evidence of their usefulness and proper application (EPPCC Standard 9.02; AERA, APA, & NCME, in press). This includes assessment techniques, interviews, tests, instruments, and other procedures and their administration, adaptation, scoring, and interpretation, including computerized scoring and interpretation systems.
Forensic practitioners use assessment instruments whose validity and reliability have been established for use with members of the population assessed. When such validity and reliability have not been established, forensic practitioners consider and describe the strengths and limitations of their ﬁndings. Forensic practitioners use assessment methods that are appropriate to an examinee’s language preference and competence, unless the use of an alternative language is relevant to the assessment issues (EPPCC Standard 9.02).
Assessment in forensic contexts differs from assessment in therapeutic contexts in important ways that forensic practitioners strive to take into account when conducting forensic examinations. Forensic practitioners seek to consider the strengths and limitations of employing traditional assessment procedures in forensic examinations (AERA, APA, & NCME, in press). Given the stakes involved in forensic contexts, forensic practitioners strive to ensure the integrity and security of test materials and results (AERA, APA, & NCME, in press).
When the validity of an assessment technique has not been established in the forensic context or setting in which it is being used, the forensic practitioner seeks to describe the strengths and limitations of any test results and explain the extrapolation of these data to the forensic context. Because of the many differences between forensic and therapeutic contexts, forensic practitioners consider and seek to make known that some examination results may warrant substantially different interpretation when administered in forensic contexts (AERA, APA, & NCME, in press).
Forensic practitioners consider and seek to make known that forensic examination results can be affected by factors unique to, or differentially present in, forensic contexts including response style, voluntariness of participation, and situational stress associated with involvement in forensic or legal matters (AERA, APA, & NCME, in press).
Guideline 10.03: Appreciation of Individual Differences
When interpreting assessment results, forensic practitioners consider the purpose of the assessment as well as the various test factors, test-taking abilities, and other characteristics of the person being assessed, such as situational, personal, linguistic, and cultural differences that might affect their judgments or reduce the accuracy of their interpretations (EPPCC Standard 9.06). Forensic practitioners strive to identify any signiﬁcant strengths and limitations of their procedures and interpretations.
Forensic practitioners are encouraged to consider how the assessment process may be impacted by any disability an examinee is experiencing, make accommodations as

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EXHIBIT 13 Dr. Kupers Report
(excerpts)

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EXHIBIT 14 Heilbrun et al., "An MMPI-Based Empirical Model of Malingering and
Deception"

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Behavioral Sciences and the Law, Vol. 8,45-53 (1990)
An MMPI-Based Empirical Model of Malingering and Deception
Kirk Heilbrun, Ph.D., William S . Bennett, M.A., Adam J. White, M.A. and Jennifer Kelly, Ph.D.
The empirically-basedmodelofmalingeringanddeception described by Rogers (1984b) was operationalized using
MMPI and clinical interview data. Subjects (N= 159) were
patients committed to an inpatient forensic hospital as ‘Incompetent to Stand Trial’ or ‘Not Guilty by Reason of Insanity’. Inter-rater reliability was acceptable for the 11 criteria used to define response styles. Each subject was categorized into one of five response style groups: ‘Reliable’, ‘Malingering’, ‘Defensive’, ‘Irrelevant’, or ‘Unclassifiable’. Factor analysis of the rating criteria yielded four factors, three of which are comparableto the assigned groups, providing some validation for the constructs underlyingthese groups.
The assessment of patients’ response style is important whenever there may be motivation to respond in a deceptive fashion. Rogers (1984b; 1988) has described four patterns of responding to clinical evaluation. These include: (1) malingering, a conscious fabrication or gross exaggeration of physical and/or psychological symptoms, distinguished from factitious disorder in that the motivation for malingering goes beyond the desire to assume the patient role and is understandable in light of the individual’s circumstances; (2) defensiveness, a conscious denial or gross minimization of physical and/or psychological symptoms, distinguished from ego defenses, which involveintrapsychicprocessesthat distort perception; ( 3 ) irrelevance, when one does not become engaged in the evaluation process; responses are not necessarily relevant to question content and may be random; and (4) reliability/ honesty, when a sincere attempt is made to be accurate in responding, with factual inaccuracies attributable to poor understanding or misperception. A fifth pattern, hybrid responding, has also been noted (Rogers,. 1984a; 1988) as refemng to a combination of these response styles.
One of the most frequently employed instruments for assessing response style is the Minnesota Multiphasic Personality Inventory (Ziskin, 1981). The various MMPI scalesand indexes that have been applied to assessingmalingering and defen-
Kirk Heilbrun, Ph.D., is Chief Psychologist at the Forensic Service, Florida State Hospital. William S. Bennett, M.A., is a staff psychologist at the Forensic Service, Florida State Hospital, and a doctoral candidate in the Department of Psychology at Florida State University. Adam J. White, M.S., is a predoctoral intern at the Miami VA Medical Center and a doctoral candidate in the Department of Psychology at Florida State University. Jennifer Kelly, Ph.D., is Assistant Professor at the University of Texas Health Science Center at Houston. Please address correspondence and reprint requests to Dr Heilbrun at the ForensicService,Florida State Hospital, Chattahoochee,Florida 32324,USA.
0735-3936/90/010045-O9$05.00 0 1990by John Wiley & Sons,Ltd.

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46 K. Heilbrun er al.
siveness have been described by Greene (1988). For malingering, these indices include the Wiener and Harmon Obvious and Subtle Scales (Wiener, 1948), the Dissimulation Scale (Gough, 1954), the Lachar and Wrobel critical items (Lachar & Wrobel, 1979), the F scale (Dahlstrom et al., 1972), and the Gough F-K Dissimulation Index (Gough, 1950). Approaches to assessing defensiveness include the Obvious and Subtle scales, the Positive Malingering (Mp) Scale (Cofer et al., 1949), the critical items, the L and K scales, and the F-K index.
The MMPI contains three specificapproaches to detecting irrelevant responding. The F scale is one of the most reliable indicators of a random profile (Dahlstrom et al., 1972; Rogers et al., 1983). When a profile is random, a clinician should expect approximately half of the 64 F scale items to be endorsed. The other two
indicators are the TR index (Buechley and Ball, 1952; Dahlstrom et al., 1972; Greene, 1979) and the Carelessness (CLS)scale (Greene, 1978). The TR index
is a measure of the number of the 16 repeated items that have been endorsed inconsistently. It has been shown to be a sensitive measure of irrelevant responding, since (in contrast to the F scale) it is relatively unaffected by psychopathology (Greene, 1988). The CLS consists of 12 pairs of items judged to be ‘psychologicallyopposite’ in content, and is a measure of the number of these pairs endorsed in the same direction. Like TRYCLS appears sensitive to irrelevant responding independent of psychopathology. Specific cut-off scores (such as greater than four for marginal, greater than five for clearly irrelevant) have been employed for both TR and CLS,
and a combined cut-off (TR + CLS greater than eight for marginal, greater than
nine for clearly irrelevant) has also been used (Greene, 1988). The MMPI offers a variety of measures of malingering, defensiveness, and irrele-
vance in responding. It is also one of the most heavily researched instruments with respect to malingeringand defensiveness (Ziskin, 1981). It therefore seems appropriate to include the MMPI in any empirical approach to measuring response style.
However, there are certain methodological problems with the previously-described MMPI studies which make it difficult to apply this research in a straightforward fashion. Much of the MMPI response style research has involved comparing the performance of individuals instructed to take the MMPI under ‘fake good’ or ‘fake bad’ conditions with that of individuals taking it under standard conditions. The problem with this approach is that there are likelyto be significantdifferencesbetween normal populations responding under deviant set instructions, and real defendants Tfor example) facing criminal charges. Some studies have compared experimental samples to clinical ones (for example Gough 1954; Grow et al., 1980; Heaton et al., 1978), but only a few have specifically examined MMPI validity scale patterns in forensic populations (for example Audubon & Kirwin, 1982; Lanyon & Lutz, 1984). Most previous MMPI research has also failed to controlfor such demographic differences as age, race, and sex (Butcher & Tellegen, 1978; Carlson, 1971).
Some MMPI research has used inmates or patients responding under circumstances that would suggest motivation to distort their presentation in a particular direction. In one study, three groups of maximum security federal inmates thought to be motivated to exaggerate psychopathology, deny it, or report it accurately, were administered the MMPI (Walters, 1988). The ‘Exaggerating’ group (N = 35, requesting single cell placement on the basis of psychopathology) scored significantly higher on F, F-K, D-0, Hy-0, Pd-0, Pa-0, Ma-0, the Dissimulation Scale, the total number of Obvious Items, and the Obvious to Subtle ratio, and significantly

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MMPI-Based Empirical Model 47
lower on scales K, Hy-S, Ma-S, and the total number of Subtle items, when compared with inmates in ‘Neutral’ condition (N = 30, entering group therapy) and
‘Denial’ condition (N= 32, undergoing parole evaluation). Differences between
Neutral and Denial groups were relatively small, with only D-0, Hy-0, and DS producing statistically significant results. These results support the use of the MMPI in this population in assessingresponse style, particularly exaggeration.
In another study (Wasyliw et al., 1988), the MMPI was administered to two groups of forensic patients: those being evaluated for competency to stand trial andor sanity at the time of the offense (N = 35), and those who had already been acquitted by reason of insanity ( N =39). The investigators reasoned that the first group would stand to gain from the exaggeration of psychopathology, and thus predicted a higher incidence of malingeringin this group. Their findingswere consistent with this prediction. On four MMPI measures sensitive to malingering (F scale, Ds scale, Obvious and Subtle subscales, and F-K index), the ‘evaluated’ group was significantlyhigher on malingeringthan the ‘acquitted’group.
The methodological difficulty with this approach, as Wasyliw et al. (1988) point out, is that such subject groups are by no means homogeneous with respect to response style. Some patients being evaluated for competency to stand trial may malinger, others may be defensive, others irrelevant, and yet others may respond reliably. A finding of a higher incidence of malingering in a sample with externallyinduced motivation to exaggerate or fake psychopathology can provide one form of validation for the malingering measure, yet the sensitivity of the measure is adversely affected by the mixture of response styles in the group. An alternative methodology might involve obtaining more homogeneous groups of subjects using each response style and examining the differences between groups on a number of other variablesrelevant to response style.
What would be most useful in the classification of response style is a model composed of a number of empirical correlates rather than one (or several) scale(s) or index(es). Such a model has been proposed. Rogers (1984b), in a comprehensive review of the literature on response styles, described two models: ( a ) an ‘heuristic’ model, composed of clinical indicators of deception, and (b) an ‘empirical’ model, composed of factors obtained from a review of the research findings from psychological testing, case studies, and social psychology. The two share a number of elements, including severity of symptoms, consistency of self-report, rare symptoms, sequence of symptoms,obviousversus subtle symptoms, appearanceof symptoms, and random pattern of responses. One other element is very similar: self-report inconsistent with clinical observation (heuristic model) versus symptoms inconsistent with clinical observation (empirical model). Each model also has some unique elements. The heuristic model includes the following elements that are not in the empirical model: endorsement of contradictory symptoms; memory of past psychological problems; potentially ‘self-damaging’ statements; and endorsement of highly specified symptoms. Elements in the empirical model not contained in the heuristic model include admission of common foibles; endorsement of idealistic self-attributes; improbable failure rate; latency of response; responses that are nearly correct; vagueness of responses; fidgetiness; willingnessto discuss symptoms; and endorsement of ‘stereotypes of neurosis’.
We have attempted to operationalizethis empirical model of response style, using the MMPI and clinical interview data. To the extent that this can be accomplished,

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48 K. Heilbrun et al.
the results will have clear implications for practice: both the clinical interview and the MMPI are routinely performed in psychological assessments.
In developing an MMPI-based classification approach, it is useful to consider the question posed by Megargee and Bohn (1979) regarding any MMPI-based model. Relevant questions include:
(1) Do the MMPI profiles fall into distinct groups or clusters? (2) Is it possible for a clinician to sort individual MMPI profiles into such groups
reliably? (3) Is it possible to define such groups operationally so that other clinicians,
or even a computer, can sort individual MMPI profiles validly?
These questions will be addressed in the course of this study. In addition, the factor structure of the rating criteria will be examined to determinewhether it suggests internally consistent constructs underlying the respective response styles.
METHOD
Subjects
The records of 159 patients were examined as part of this research. These patients had been randomly selected upon admission as a part of a larger project designed to collect clinical data for newly-admitted forensic patients at the Forensic Service, Florida State Hospital. The Forensic Service is a 460-bed forensic hospital located in Chattahoochee, which is a small town in northwest Florida. Patients are committed by the criminal courts as either ‘Incompetent to Stand Trial’ or ‘Not Guilty by Reason of Insanity’. Also located on the hospital grounds are units for civilly-commitred patients, a specialized treatment facility for mentally ill correctional inmates, and a minimum-security prison.
The sample consisted of male patients with a mean age of 30.8 years (SD = 9.3), with a range from 17 to 71. Racial composition was 57.2% White and 42.8% Black. Diagnosis was assessed through structured interviews: (a) the Schedule for Affective Disorders and Schizophrenia (Endicott and Spitzer, 1978) from September 1984 to October 1985;and (b)the Structured Clinical Interviewfor DSM-I11(Spitzer and Williams, 1985) from October 1985 to June 1988. A total of 53% of patients were diagnosed as schizophrenic, with another 18.5% diagnosed as having affective disorder with psychotic features. Non-psychotic primary diagnoses were assigned to 23.9% of the sample. Secondary diagnoses of substance abuse (83.3%) were frequent.
Most subjects were committed as Incompetent to Stand Trial (78.6%) or Not Guilty by Reason of Insanity (18.2%). Arrest charges ranged from homicide to misdemeanor property offenses. Patients had a mean of 4.5 (SD = 4.9) prior hospitalizations in state psychiatric facilities.
Procedure
Two sources of information were used in rating response style. The MMPI, administered within three to five weeks of admission, was examined. Psychiatric evaluations conducted within 48 hours of admission were also reviewed.

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MMPI-Based Empirical Model 49
The MMPI-Based Empirical Model of Response Style (MERS) was developed by using 11 of the 17 criteria described in Rogers’s (1984b) empirical model of dissimulation. The criteria employed were severity of symptoms, consistency of selfreport, rare symptoms, sequence of symptoms, obvious versus subtle symptoms, appearance of symptoms, admission of common foibles, endorsement of idealistic self-attributes, random responding, reported symptoms inconsistent with clinical observation, and willingness to discuss symptoms. These criteria were selected because seven of them were also included in Rogers’s (1984b) heuristic model, and because these 11 factors appeared most likely to discriminate between reliable, malingering, defensive, and irrelevant responders.
Each criterion was operationalized by using information from the MMPI or the psychiatric evaluation. The MMPI was used to define consistency of self-report (TRYCLS Scales); obvious versus subtle symptoms (Obvious and Subtle Scales); admission of common foibles (L scale); endorsement of idealistic self-attributes (L scale, K scale, and the 0-H Scale developedby Megargee et d. [1967]), and random responding (TR and CLS Scales and F scale). The psychiatric evaluation was used to rate symptom severity, rare symptoms, sequence of symptoms consistent with diagnosis, sudden onset of symptoms, reported symptoms inconsistent with clinical observation, and willing to discuss symptoms. Decision rules were established for each criterion to help determine whether the criterion should be rated as definitely present, possible, or definitelyabsent (seeAppendixA).
Two of us (A.W and S.B.) served as raters. Using the 11 criteria, the raters scored each profile by adding the number of criteria which were met for each response style. Each subject thus received four scores, one each for Reliable, Malingering, Defensive, and Irrelevant. Raters then classified each subject into one of these four categories of response style, or as Unclassifiable.’
RESULTS
The first question concerned the inter-rater reliability in classifyingsubjects. Agreement between raters appeared good ( I = 0.76) in their scoring of each of the 11 criteria. Raters were also in substantial agreement (r = 0.82) with respect to the Reliable, Malingering, Defensive, and Irrelevant scores computed for each subject.
The next step was to examine &e factor structure of the 11 criteria to see whether constructs similar to our response style categories would emerge. A principlecomponents analysis to oblique rotation (see Table 1) yielded four factors, which might be best described as Reliable, Malingering, General Deception, and Severity of Psychopathology.A total of 64.8% of variance was accounted for by these factors. The Reliable factor included two criteria seen in reliable responding: ‘consistency of self report’, and (negative to) ‘random responding’. The second factor, Malingering, included a negative loading for the ‘endorsement of idealistic self-attributes’ and also included the tendency to respond to far more obvious than subtle items and to admit to common foibles. The third factor, General Deception, contained two items usually associated with malingering: ‘rare symptoms’ and ‘sudden onset
I A full description of the MERS classification process, including cut-off scores, is available from the first author.

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50 K. Heilbrun et al.

Table 1. Principle-Components Analysis of Items used in MMPI-Based Empirical Response Style (MERS) Procedure.

Factor 1 (Reliable)

Factor 2 (Malingering)

Factor 3 (Deception)

Factor 4 (Severity of disturbance)

Consistency of self-report Random responding Idealistic self-attributes Admits common foibles
Obvious > subtle
Reported symptoms inconsistent with ciinical observations
Rare symptoms Willingnessto discuss symptoms
Sudden onset of symptoms Consistently severe symptoms
reported Sequence of symptoms consistent
with diagnosis

0.97 -0.96
0.03 0.19 -0.27
-0.06 0.17 0.04
-0.23
-0.06
- 0.02

0.02 0.05 -0.91 0.86 0.64
0.09 0.06 0.13 -0.13
0.1 1
-0.12

-0.03 0.03
-0.05 0.00
-0.1 1
0.71 0.64 -0.62 0.37
0.12
-0.28

-0.05 0.04 0.04
-0.06 0.02
-0.27 0.44
-0.01 -0.10
0.77
0.75

Factor 1 2 3 4

Eigen-value 2.44 1.95 1.41 1.33

Percentage of variance 22.1 17.7 12.8 12.1

Cumulative percentage 22.1 39.9 52.7 64.8

of symptoms’. It also included one criterion that could be applied to either Malingering or Defensive responding - ‘inconsistency of reported symptoms with clinical observation’, and another specific to Defensiveness - (negative on) ‘willingness to discuss symptoms’. This factor was thus labelled ‘general deception’, as it contained aspects of deceptive responding in both directions. The final factor appeared
to reflect severity of disturbance, relatively independent of response style.

DISCUSSION
The MERS procedure is a different approach to the assessment of response style in a forensic population. We have attempted, with some success, to operationalize the empirical model for the assessment of malingering and deception described by Rogers (1984b). Inter-rater reliability in rating the operational criteria is good, and the underlying factor structure is consistent with the existence of constructs underlying two of the response styles, and partially supportive of a third. Employing only MMPI and clinical interview data, the MERS may yield a more efficient use of such routinely collected clinical information.
It is noteworthy that the ‘hybrid’ groups described by Rogers (1984b, 1988), as observed clinically but not investigated empirically, are clearly part of the response styles seen in this study. The Reliable, Malingering, Defensive, and Irrelevantgroups defined in this article are by no means ‘pure’. There appear to be several reasons for this. A number of the criteria used in rating response style could be scored in the same direction for differentgroups, reflectingthe clinical and empiricalrealities that these groups are similar in some ways. Also, response style is probably a dynamic variable, fluctuating according to situation (for example a male patient who exagger-

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MMPI-Based Empirical Model 5 1
ates psychopathology when he is Incompetent to Stand Trial but under-reports it following his acquittal by reason of insanity) and even between topics within the same evaluation (reliably reporting thoughts and feelings in most areas, for example, but defensively minimizing sexual impulses toward children). The Malingeringand Defensive groups in this study both had prominent elements of Reliable responding. This raises an interesting question: on what dimensions will these four groups differ? One eventual goal of research categorizingresponse style in this fashion is to provide ‘templates’for each response style, allowing the evaluator to make a ‘best fit’ judgment between the empiricallyderived templates and the immediatepattern of clinical data.
The overall distribution of the groups is enlightening. The MERS procedure could not classify 52 (33%) of 159 subjects, and another 35 (22O/0) were classified as Reliable. That means that 46% of the sample were assignedto categoriesthat should carry a warning label: ‘Caution. What you see is not what you get!’. The consequent need for third-party information to help balance distortions created by inaccurate responding is particularly compelling. While third-party information has always been a recommended part of forensic assessment (Heilbrun, 1988; Melton et ul., 1987), the present results should serve to strongly underscore this need; as Greene (1988) points out, inaccurate responding means that little can be inferred about the nature of the psychopathology present. It is also worth noting that Defensive (21%) and Irrelevant (16%) response styles occurred more frequently than Malingering (9%), which has received far more attention in both the professional literature and popular press.
Research on the MERS process is just beginning. The next major step is external validation: do the response style groups differ significantlyon non-MMPI variables, such as life-style, socialhistory, behavior, and patterns of thinking?The classification procedure itself will need to be further investigated and refined. Nearly one-third of our present sample could not be classified. Further MERS research should reduce
this percentage to a more acceptable level (such as 1% - the figure reported by Megargee and Bohn, 1979), and possibly lead to differential weighting of criteria.
The procedures must be cross-validated as well. The question of generalizability to other populations should be addressed in samples of different age and sex, in out-patient settings as well as inpatient, and in jail and prison settings where the base rate of psychotic disorders is much lower. Finally, the interview might be more relevant to response style if it were designed specifically for that purpose. The use of such an interview, either structured (Rogers, 1986) or unstructured (Resnick, 1987), as a supplement to the standard clinical interview used in this study, might yield even more promising results.
ACKNOWLEDGEMENTS
The authors would like to express their appreciationto Richard Rogers for a thorough critique of an earlier version of this manuscript, and to Stewart Parsons and the staff of the Forensic Service, Florida State Hospital, for the support they have provided throughout the course of the larger project of which these data are a part.

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5 2 K. Heilbmn et al.

REFERENCES

Audubon, J. J. & Kirwin, B. R. (1982). Defensiveness in the criminally insane. 30urnal of Personality Assessment, 46,304-3 1 1.
Buechley, R. & Ball, H. (1952). A new test of ‘test validity’ for the group MMPI. Journal of Consulting Psychology, 16,299-301.
Butcher, J. N. & Tellegen, A. (1978). Common methodological problems in MMPI research. Journal of Consultingand Clinical Psychologv, 46,620-628.
Carlson, R. (1971).Where is the person in personality research?PsychologicalBulletin, 75,203-219. Cofer, C. N., Chance, J. & Judson, A. J. (1949). A study of malingering on the MMPI. Journal of
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Gough, H. G. (1950).The F minus K dissimulationindex for the MMPI. Journal of Consulting Psychobgy,
14,408-413.
Gough, H. G. (1 954).Some commonmisconceptions about neuroticism.Journalof ConsultingPsychology, 18,287-292.
Greene, R. L. (1978). An empirically derived MMPI carelessness scale. Journal ofClinica1 Psychology,
34,407-410. Greene, R.L. (1 979).Responseconsistencyon the MMPI: The T R index.JourndofPersonalityAssessment,
43,69-7 1. Greene, R. L. (1988).Assessment of malingering and defensivenessby objective personality inventories.
In R. Rogers(Ed.), ClanicalAssessrnenrofMalingeringandDeception(pp. 123-1 58). New York Guilford. Grow, R., McVaugh, W. & Eno, T. D. (1980). Faking and the MMPI. J o u d of Clinical Psychology,
36,910-917.
Heaton, R. K.,Smith, H. H., Lehman, R. A. W. & Voyt, A. C. (1978).Prospects for faking believable
deficitson neuropsychologicaltesting. Journal of Consultingand ClinicalPsychology, 46,892-900. Heilbmn, K. (1988,March). Third party information in forensic assessment: Much needed, sometimes
collected, poorly guided. Paper presented at the Mid-Winter Meetingof the AmericanPsychology-Law SocietyKXvision41,Miami, Florida. Lachar, D. & Wrobel, T.A. (1979).Validatingclinicians’hunches: Construction of a new MMPI critical item set.Journal of Consultingand Clinical Psychology, 47,277-284.
Lanyon, R. L.& Lutz, R. W. (1984). MMPI discrimination of defensive and nondefensive felony sex
offenders.Journal of Consultingand ClinicalPsychology, 52,841-843. Megargee, E.I. & Bohn, M. J. (1979).ClassafinngCriminal Offenders:A New Sy~temBased on the MMPI.
Beverly Hills: Sage. Megargee, E. I., Cook, P. E. & Mendelsohn, G. A. (1967). Development and validation of an MMPI
scaleof assaultivenessin overcontrolledindividuals.Journal ofAbnormal Psychology, 72,519-528. Melton, G. B., Petrila, J., Poythress, N. G. & Slobogin, C. (1987).Psychologicalevaluationsfor the courts:
A handbookfor mental kealthprofessionah and lawyers. New York Guilford.
Resnick, P. (1987,October). The detection of malingered mental illness. Workshop presented at the
American Academyof Psychiatryand Law, Ottawa, Canada. Rogers, R. (1984a).Rogers Criminal ResponsibilityAssessment Scales (RCRAS) and Test Manual. Odessa,
Florida: PsychologicalAssessmentResources, Inc. Rogers, R. (1984b). Towards an empirical model of malingering and deception. Behavioral Sciences
&the Law, 2,93-111. Rogers, R. (1986). Structured Intem‘ew of Reported Symproms (SIRS). Clarke Institute of Psychiatry:
Toronto, Unpublished scale. Rogers, R. (1 988). Introduction. In R. Rogers (Ed.), Clinical Assessment of Malingering and Deception
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protocols.Journal of PersonalityAssessment, 47,364-368. Spitzer, R. & Williams, J. (1985).Structured clinical interviewfor DSM-III. New York: New York State
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security,male inmates.Journal of PersonalityAssessment, 52,465-474. Wasyliw, 0.E., Grossman, L. S., Haywood T. W. & Cavanaugh, J. L. (1988). The detection of
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Wiener, D. N. (1948). Subtle and obvious keys for the MMPI. Journal of Consulting Psychology, 12, 164-170.

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MMPI-Based Empirical Model 53
Ziskin, J. (1981). Coping with Psychiatric und Psychologicd Tesrimony (3rd edition). Venice, California: Law & PsychologyPress.

APPENDIX A

Criteria for MERS Rating

1 = definitely no.

2 = uncertain.

3 = definitely yes.

Indicators

Source

Score

1. Symptoms consistently severe. (Is there a range of severity or is every symptom reported as severe?)
2. Consistency of self-report across time. (TR or CLS 2 5 = 1, TR or CLS 5 4 = 3.)
3. Rare symptoms. 4. Sequence of symptoms
consistent with diagnosis. 5 . Far more obvious than
subtle symptoms. (4 scales
with T score differences
1-10 = 1,ll-19 = 2,20+ = 3.) 6. Sudden onset of symptoms
(Not due to substance abuse.) 7. Admits to common foibles.
(T scorefor Scale L 70 + = 1,
60-69 = 2,40-59 = 3.) 8. Endorsement of idealistic
self-attributes. (T scores
for Scales L, K are 70 + = 1,
60-69 = 2,40-59 = 1.) 9. Random pattern of responses
on MMPI. (TR or CLS 2 5 = 3, TRandCLS 1 4 = 1.) 10. Reported symptoms inconsistent with clinical observations. 11. Willin-gness to discuss s-ym-utoms.

Psych
MMPI Psych Psych
MMPI Psych
MMPI
MMPI
MMPI Psych Psych

Note: ‘Psych’refers to psychiatric evaluations,TR to the MMPI test-retest index, and C I S to the MMPI CarelessnessScale.

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EXHIBIT 15 Melton, et al., Psychological Evaluations for the
Courts

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Between: And

British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62

Date: 20180117 Docket: S150415 Registry: Vancouver

British Columbia Civil Liberties Association and the John Howard Society of Canada
Attorney General of Canada

Plaintiffs Defendant

And
West Coast Women’s Legal Education and Action Fund and Criminal Defence Advocacy Society

Before: The Honourable Mr. Justice Leask

Intervenors

Reasons for Judgment

Counsel for the Plaintiffs:

J. Arvay, Q.C. A. Latimer C. DiPuma

Counsel for the Defendant:

M.R. Taylor, Q.C. S. Currie E. Burnet
M.J. Huculak G.J. Stark F. Paradis
V. Wynn-Williams M.L. French
M. Iyengar, Articled Student A. Azevedo, Articled Student
A. Kirby, Articled Student

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British Columbia Civil Liberties Associa2t1io5n5v. Canada (Attorney General)

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Counsel for the Intervenor, West Coast Women’s Legal Education and Action Fund: Counsel for the Intervenor, Criminal Defence Advocacy Society: Place and Dates of Hearing:
Place and Date of Judgment:

J. Winteringham R. Mangat
S. Arrandale
T. Arbogast A. Ballantyne
Vancouver, B.C. July 4-7, 10-14, 17-19, 24-28, 31, August 1-4, 9-11, 14, 16-18, 21, 24,
28-31, and September 1, 2017
Vancouver, B.C. January 17, 2018

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Table of Contents
I. INTRODUCTION ................................................................................................ 6 A. The Parties...................................................................................................... 7 B. Nature Of The Evidence.................................................................................. 7 C. The Office of the Correctional Investigator’s Reports ...................................... 8
II. HISTORY OF SOLITARY CONFINEMENT........................................................ 8 A. History ............................................................................................................. 8 B. International Law ........................................................................................... 19
III. ADMINISTRATIVE SEGREGATION ............................................................ 21 A. Correctional Service of Canada: Organization and Statistics ........................ 21 B. The Statute, Regulations, and Commissioner’s Directives ............................ 25 C. Placement in Administrative Segregation...................................................... 28 D. Alternatives to Administrative Segregation .................................................... 32 E. Conditions of Confinement ............................................................................ 34 1. Physical Conditions ................................................................................... 34 2. Cell Effects ................................................................................................ 36 3. Human Contact.......................................................................................... 37 4. Programming ............................................................................................. 42 (a) General................................................................................................... 42 (b) Aboriginal Programming ......................................................................... 43 5. Duration of Placements ............................................................................. 45 F. Effects of Segregation on Mental Health ....................................................... 47 1. Plaintiffs’ Experts ....................................................................................... 48 (a) Dr. Stuart Grassian................................................................................. 48 (i) Qualifications ...................................................................................... 48 (ii) Opinion ............................................................................................... 48 (b) Dr. Craig Haney...................................................................................... 53 (i) Qualifications ...................................................................................... 53 (ii) Opinion ............................................................................................... 53 2. Government Experts.................................................................................. 58 (a) Dr. Jeremy Mills...................................................................................... 58 (i) Qualifications ...................................................................................... 58 (ii) Opinion ............................................................................................... 59 (b) Dr. Paul Gendreau.................................................................................. 64

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(i) Qualifications ...................................................................................... 64 (ii) Opinion ............................................................................................... 65 3. Discussion ................................................................................................. 67 4. Conclusion ................................................................................................. 74 IV. SECTION 7 ................................................................................................... 76 A. Interests ........................................................................................................ 77 1. Life............................................................................................................. 77 2. Security of the Person ............................................................................... 80 (a) Segregation Causes Serious Psychological Suffering ............................ 80 (b) Mental Health Monitoring........................................................................ 83 (c) Segregation Causes Physical Harm ....................................................... 88 B. Principles of Fundamental Justice................................................................. 88 1. Legislative Objective.................................................................................. 89 2. Arbitrariness and Overbreadth................................................................... 90 3. Gross Disproportionality ............................................................................ 95 C. Procedural Fairness ...................................................................................... 96 1. The Law..................................................................................................... 96 2. Positions of the Parties .............................................................................. 97 3. Discussion ................................................................................................. 97 D. External Oversight....................................................................................... 100 1. Background ............................................................................................. 100 2. Discussion ............................................................................................... 108 E. Right to Counsel.......................................................................................... 115 V. SECTION 10................................................................................................... 117 VI. SECTION 15 ............................................................................................... 121 A. Positions of the Parties................................................................................ 121 B. Law.............................................................................................................. 123 C. Analysis....................................................................................................... 125 1. Women .................................................................................................... 125 2. Aboriginal Inmates ................................................................................... 127 3. Inmates with Mental Illness...................................................................... 134 4. Intersecting Characteristics ..................................................................... 141 VII. SECTION 12 ............................................................................................... 141 VIII. SECTION 9 ................................................................................................. 143 IX. SECTION 1 ................................................................................................. 145

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A. Governing Legal Principles ......................................................................... 146 B. Proportionality – Prolonged, Indeterminate Segregation ............................. 147
1. Rational Connection ................................................................................ 147 2. Minimal Impairment ................................................................................. 148
(a) Time Limits ........................................................................................... 148 (b) Voluntary Dissociation .......................................................................... 151 (c) Other Subpopulations ........................................................................... 153 (d) Treatment Approach ............................................................................. 157 3. Proportionality of Effects .......................................................................... 158 C. Proportionality: Lack of Independent Review and Right to Counsel ............ 159 X. REMEDIES ..................................................................................................... 159 XI. COSTS........................................................................................................ 162 XII. END NOTE.................................................................................................. 162

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I. INTRODUCTION
[1] Segregation has been described as “the most onerous and depriving experience that the state can legally administer in Canada”: Annual Report of the Office of the Correctional Investigator 2014-2015 at p. 31 [2014-2015 Annual Report]. The British Columbia Civil Liberties Association and the John Howard Society of Canada ask the Court to end administrative segregation as it is presently practised in federal penitentiaries in Canada.
[2] The plaintiffs contend that ss. 31-33 and 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “CCRA”), authorizing administrative segregation are contrary to ss. 7, 9, 10, 12 and 15 of the Canadian Charter of Rights and Freedoms. They say that the impugned provisions permit indeterminate and prolonged solitary confinement, as that term is understood in international law and accepted worldwide by virtually every organization or professional group conversant with the issue. Segregation, especially when endured for extended periods, has significant adverse effects on the physical, psychological, and social health of inmates; there is no independent oversight of placements in what has been described by the Supreme Court of Canada as a “prison within a prison”: Martineau v. Matsqui Disciplinary Bd., [1980] 1 S.C.R. 602 at 622. The plaintiffs further allege that the impugned provisions have a disproportionate impact on Aboriginal inmates and those with mental illness.
[3] The Attorney General of Canada (the “Government”) responds that administrative segregation as it is practised in federal correctional facilities is not solitary confinement since inmates have daily opportunity for meaningful human contact. Moreover, the psychological effects of segregation on inmates remain the subject of ongoing and vigorous scientific debate. The Government submits that maintaining institutional security and inmate and staff safety is a complicated task, and that administrative segregation is a necessary tool when no other reasonable alternatives exist. The length of placements is not indeterminate as alleged but, rather, determined by the time required to eliminate the safety or security issue that triggered its use. Accordingly, the Government contends that the plaintiffs have

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failed to establish that the impugned provisions are unconstitutional on their face or in their application, and that their claims must therefore be dismissed.
A. The Parties [4] The British Columbia Civil Liberties Association is a non-profit advocacy group whose objects include the promotion and defence of civil liberties in British Columbia and Canada. The Association has had long-standing interest in inmates’ rights and policy.
[5] The John Howard Society of Canada is a non-profit organization with a strong history of commitment to and involvement in matters of criminal justice, especially as they pertain to penal policy and corrections.
[6] The Government does not dispute that the plaintiffs are entitled to public interest standing in this case. However, it contends that the lack of an individual plaintiff has implications for the available remedies.
[7] Two intervenors also participated in these proceedings. West Coast LEAF’s submissions focussed on what it says is the disproportionate impact of administrative segregation on individuals with intersecting characteristics of disadvantage, namely, Aboriginal women with mental illness. The Criminal Defence Advocacy Society (“CDAS”) primarily challenged the lack of access to counsel during the segregation review process.
B. Nature Of The Evidence [8] Although the parties were required to operate under very tight timelines, they nevertheless assembled a substantial evidentiary record.
[9] Twenty-eight witnesses were cross-examined on their affidavits before the Court. The plaintiffs’ witnesses comprised 10 experts on a range of subject matters relating to the practice and effects of administrative segregation, and eight lay witnesses. These latter individuals were primarily former Correctional Service of Canada (“CSC”) employees and inmates who had experienced placements in administrative segregation.

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[10] The Government tendered the evidence of two experts with respect to the psychological effects of administrative segregation, and 10 lay witnesses who were all current or former CSC employees.
[11] Because of the volume of evidence, I will not refer to every affidavit or witness in these Reasons. However, I have reviewed the entire record, and my conclusions are based on all of the evidence before me.
C. The Office of the Correctional Investigator’s Reports [12] The Office of the Correctional Investigator (“OCI”) serves as ombudsman for federally sentenced inmates. Among its statutory responsibilities are the investigation of individual or systemic concerns relating to corrections, and the preparation of annual and special reports. To enable performance of these duties, the OCI has full access to all of CSC’s facilities, records and staff.
[13] The plaintiffs seek the admissibility of numerous OCI reports pursuant to either the public records exception to the rule against hearsay or the principled approach. The Government objects to their admissibility on both grounds.
[14] I refer to OCI reports throughout these Reasons. For the most part, the particular facts or statistics I cite were put to the Government’s witnesses in crossexamination and accepted by them as accurate. Where this was not the case, I am satisfied the reports are nonetheless admissible pursuant to the principled approach to hearsay. They are necessary because the Correctional Investigator is not a competent or compellable witness pursuant to s. 189 of the CCRA. They are also reliable because they are compiled by the OCI in the discharge of a public duty on the basis of data maintained by CSC.
II. HISTORY OF SOLITARY CONFINEMENT A. History [15] The following history derives primarily from the expert reports of Dr. Stuart Grassian, whose qualifications are discussed later, and Michael Jackson, Q.C. Professor Jackson is Emeritus Professor of Law at the University of British

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[252] I accept that the early history of solitary confinement in the United States and more particularly in Germany, demonstrates that these harmful effects have been recognized since the late 19th and early 20th centuries.
[253] Dr. Mills and Dr. Gendreau base their opinions to a significant extent on the Morgan et al. Study which, in turn, relies for its results on the Colorado Study and the Zinger Study of Canadian inmates. I agree with Dr. Grassian and Dr. Haney’s criticisms of the Colorado Study and Dr. Haney’s criticisms of the Zinger Study. In particular, the distinction that Dr. Haney draws between voluntary and involuntary confinement in administrative segregation will be discussed later in these Reasons.
[254] None of my above findings should be read as a criticism of meta-analysis as a method of scientific research. I agree with Dr. Gendreau that it can be a valuable tool for understanding complex problems. The Morgan et al. Study is unhelpful in understanding solitary confinement because of flaws in the Colorado and Zinger studies.
[255] I now turn to the legal significance of the facts that I have found.
IV. SECTION 7 [256] Section 7 of the Charter guarantees everyone “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
[257] To establish a breach of s. 7, the plaintiffs must show that (a) the impugned laws interfere with, or deprive them of, their life, liberty or security of the person; and (b) that the deprivation in question is not in accordance with the principles of fundamental justice.
[258] The inquiry under s. 7 is not a quantitative one – for instance, how many people are negatively impacted – but qualitative. Accordingly, an arbitrary, overbroad or grossly disproportionate impact on one person suffices to establish a breach of s. 7: Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 127.

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2. The impugned laws are invalid pursuant to s. 15 of the Charter: a) to the extent that the impugned laws authorize and effect any period of administrative segregation for the mentally ill and/or disabled; and b) also to the extent that the impugned laws authorize and effect a procedure that results in discrimination against Aboriginal inmates.
[610] I am prepared to grant a 12 month suspension of my declaration of invalidity on the basis of the first two reasons enumerated in Schachter v. Canada, [1992] 2 S.C.R. 679, that is that an immediate declaration would pose a potential danger to the public or threaten the rule of law.
XI. COSTS [611] I am satisfied that this is a proper case to award the plaintiffs’ special costs and am pleased that counsel have worked out a mechanism to accomplish this.
XII. END NOTE [612] I want to express my appreciation for the hard work and legal abilities of all counsel who have been involved in this matter. The issues were complex, the time pressures formidable, yet the professionalism of counsel substantially lightened the burden on the Court.
“Leask J.”

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EXHIBIT 17 The Colorado Study

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EXHIBIT 18 Smith,
"The Effects of Solitary Confinement"

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The effects of solitary confinement: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation
By Peter Scharff Smith
Abstract
Solitary confinement is a common practice in many prisons, but it has sparked debates and research on its effects on prisoners. This article examines a recent study on administrative segregation in Colorado in the context of relevant European research on the effects of solitary confinement Key words: administrative segregation, solitary confinement
The use of large scale solitary confinement became common with the rise of the modern penitentiary during the first half of the 19th century and has remained a feature of Western prison systems. A debate about the effects of solitary confinement was largely settled early in the 20th century, when both experts and practitioners tended to agree that solitary confinement was harmful. Discussions on the effects of solitary confinement resurfaced in the 1950s and the following two decades when sensory deprivation studies were carried out in reaction to, among other things, stories of the brainwashing of U.S. prisoners of war during the Korean War. During the 1980s, solitary confinement regained topicality in the wake of the creation of supermax prisons in the United States. But solitary confinement has also been used, debated, and researched extensively elsewhere, As one example, solitary confinement has been an integral part of Scandinavian pre-trial prison practice for many years (Smith 2006). In 2010, the Colorado Department of Corrections and the Department of Psychology at the University of Colorado issued a new study on solitary confinement. In this article, I will discuss research on the effects of solitary confinement and make some comments on the Colorado study. (Editor’s note: All references to, or quotes from, the Colorado study are from O’Keefe et al., 2010.)

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Colorado Study
The Colorado study is longitudinal and mainly based on self-reported data. The battery of tests used in this study looks impressive and covers the various symptoms and health issues described in the earlier solitary confinement literature, such as anxiety, depression, and suicidal thinking. However, it is clearly important that all these tests were used without in-depth interviews being conducted, and that the selfreported data was not collected by a psychiatrist, a psychologist, or an experienced prison researcher. The main conclusion in the Colorado study was that the results “were largely inconsistent with (…) the bulk of literature that indicates AS is extremely detrimental to inmates.” and that “there was initial improvement in psychological well-being across all study groups, with the bulk of the improvements occurring between the first and second testing periods.” However “all of the study groups, with the exception of the GP NMI (general population, non-mentally ill) group, showed symptoms that were associated with the SHU (special housing unit) syndrome” (i.e. high degrees of psychological disturbance). In this article, I will discuss a number of issues that will help explain the apparent discrepancy between the Colorado study conclusions and the results gathered in other available research.
Why not use the available research?
The Colorado report begins with the claims that the debate on the use of long-term administrative segregation “has suffered from a lack of empirical research” and that “the scant empirical research conducted to date suffers from research bias and serious methodological flaws.” This is a seriously misleading statement. The problem is not that relevant and rigorous empirical research does not exist, but that the authors of the Colorado report haven’t used it. Much of this research is European, but it has been presented and reviewed in international journals, including U.S.-based journals (Smith, 2006 and Haney, 2009).
European studies on the effects of solitary confinement
A growing body of American research is clearly relevant to a discussion of solitary confinement and segregation regimes (see, for example, Lovell, 2008; Cloyes, Lovell, Allen, and Rhodes, 2006; Rhodes, 2004; and Haney, 2008). In the following, I will briefly review some of the European research, which seems to be less known to American readers. This research has not been carried out in supermax prisons in the U.S. (for European supermax research, see King, 2005 and Shalev, 2009) but it is, in fact, research on how prisoners react to being subjected to 22-23 hours of solitary confinement in their cell each day, so it is most certainly relevant. According to the Colorado study, the “defining feature” of administrative segregation in Colorado is single-cell confinement for 23 hours per day.
For various reasons, the use of pre-trial solitary confinement has historically been extensive in Sweden, Norway, and Denmark and has sparked intense debates and also research on the effects of solitary confinement, especially in Denmark and Norway (Smith 2006). In Norway, a 1993 longitudinal study of 63 isolated remand prisoners found widespread health problems after four weeks of solitary confinement, including depression, anxiety, stomach and muscle pains, and an inability to concentrate. The study excluded inmates with obvious withdrawal symptoms and those deemed at risk of suffering from a psychosis (Gamman 2001). A longitudinal follow-up in 1995 with a sample of 54 remand prisoners
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included a control group and reported significantly more physical and psychological suffering, including sleeplessness, concentration problems, anxiety, and depression, among the prisoners in solitary confinement, who were also given much more medication than the control group (Gamman, 1995, 2001). The author of this study found that several of the isolated prisoners developed symptoms of a hallucinatory nature, that there were “important differences” between the health of those isolated and those not, and concluded that “the isolated had more symptoms of both psychological and somatic nature” (Gamman, 1995, p. 2245).
In terms of the prevalence of symptoms, 94 percent of those in pre-trial solitary confinement suffered from adverse symptoms after four weeks. More than half suffered from serious symptoms like depression and anxiety, and 13 percent had mutilated themselves (Gamman, 2001). In a third Norwegian study on disciplinary segregation, more than 43 percent of the isolated prisoners suffered adverse symptoms after only an average of 39.7 hours in solitary confinement (Stang et al., 2003).
In Denmark during the 1980’s and 90’s, extensive research on the effects of solitary confinement was carried out in the form of a number of interview-based studies as well as a so-called “isolation-study,” which was a large-scale longitudinal study consisting of a comprehensive psychiatric and psychological study (1994) and a follow-up study (1997), both with control groups. The Colorado report authors are not aware of some of the most important articles and results from these studies (Sestoft et al., 1998; Andersen, 2004; see also Smith, 2006), and furthermore do not fully incorporate the findings of the two related studies they actually list in their references. The Danish 1994 study involved 367 remand prisoners and reported a significantly higher rate of psychiatric problems among prisoners in isolation. A higher incidence of psychiatric morbidity – mainly adjustment disorders - was found among those in solitary confinement (28 percent) compared to those not in isolation (15 percent). The rate of psychiatric morbidity was highest (43 percent) among a third group of remand prisoners who had been in solitary confinement for more than two months (Andersen et al., 1994). A number of standardized instruments were used to measure health quantitatively. The scores for those in solitary (as a group) were unchanged throughout the isolation period, while those not in isolation “had a gradual improvement on most quantitative mental health scores during this early phase of imprisonment (Andersen, 2004, p. 39)” Those in solitary confinement experienced an improvement in health scores when the solitary confinement conditions were relieved (Andersen 2004). The researchers concluded that the differences between the isolated remand prisoners and the control group were caused “mainly by different conditions of SC and non-SC” (Andersen 2004, p. 39), and that pre-trial detention in isolation compared with pre-trial detention without isolation involved strain and risk of damaging the mental health of the imprisoned individuals (Andersen et al. 1994, 2000).
The 1994 study was longitudinal, incorporated both quantitative and qualitative elements, used standardized instruments to measure health, incorporated in-depth interviews, used highly-skilled researchers, included control groups and a very large number of prisoners in solitary confinement, produced statistically significant results, and verified their results through other objective data regarding the hospitalization of remand prisoners.
Still, the thoroughness of the study caused the research itself to constitute a significant intrusion into the lives of the study’s participants (Andersen, 2004). During the first three weeks of imprisonment those in solitary confinement were typically subjected to four or five days of intense interviews and testing (2–4
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hours each day, not counting filling out questionnaires, having blood samples taken etc.). These remand prisoners were, in other words, effectively not in solitary confinement during those four or five days. This constituted around 20 to 25 percent of the period between the first test and the end of the second test round after approximately three weeks. This must have downgraded the measured differences between the isolated prisoners and the control group significantly, especially since the interviews constituted meaningful social contact in which the well-being and innermost thoughts of the imprisoned individual was in focus (Smith, 2006).
Given this issue, it is not surprising that the second part of the 1994 study - a survey of hospitalization among remand prisoners – gave even more clear-cut results. A sample of 124 remand prisoners who had been transferred to prison hospital revealed that, if “a person remained in SC [solitary confinement] for four weeks the likelihood of being admitted to the prison hospital for a psychiatric reason was about twenty times as high as for a person remanded in NSC [non-solitary confinement] for the same period of time” (Sestoft et al., 1998, p. 103).
A 1997 follow-up study was based on reports (questionnaires) from former participants in the original study, and illustrated how former remand prisoners in solitary confinement found their incarceration significantly more straining than did remand prisoners not in isolation. Thirty-eight percent of those in solitary confinement and 36 percent of those in long-term solitary found their remand imprisonment extraordinarily straining, as opposed to 12 percent of those not in solitary (Andersen et al., 1997). Furthermore, 23 percent of those in solitary confinement and 27 percent of those in long-term solitary reported that they experienced severe psychological reactions after their remand imprisonment, as opposed to nine percent of those not in solitary (Andersen et al.,1997). The authors concluded that from a medical and psychological perspective the practice of pre-trial solitary confinement should be abandoned (Andersen et al., 1997).
A Swiss study on the effects of solitary confinement documented a similar problem surrounding hospitalization of inmates in solitary confinement. The study sample consisted of 203 male patients in a psychiatric clinic in Zurich, of whom 102 were committed from a prison (76 percent of these came directly from solitary confinement). The study concluded that remand prisoners in solitary confinement were much more often hospitalized for psychiatric reasons than were prisoners who came from communal prison conditions (Volkart, Rothenfluth, et al., 1983).
Volkart and colleges also compared 30 prisoners in solitary confinement with a control group of 28 prisoners in communal imprisonment. The study was cross-sectional and incorporated no longitudinal data. Isolated inmates had spent an average of ninety-one days in solitary confinement while the control group had spent on average 326 days imprisoned. All participants had normal intelligence and their health and personalities were assessed through psychiatric questionnaires. The group of isolated inmates “showed considerably more psychopathological symptoms than the control group [and these] effects were mainly caused by solitary confinement; age, schooling, duration of detention and personality turned out to be of subordinate importance.” (Volkart, Dittrich, et al. 1983, p. 44)
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Social contact and contamination across groups
The available research, including the above-mentioned studies, demonstrates that solitary confinement “causes serious health problems for a significant number of inmates. The central harmful feature is that it reduces meaningful social contact to an absolute minimum: a level of social and psychological stimulus that many individuals will experience as insufficient to remain reasonably healthy and relatively wellfunctioning.” (Smith, 2006, p.503)
This should be a starting point for further research on solitary confinement. Previous research does not show, for example, that the availability of television, radio, or newspapers, or even good material conditions of confinement, will offset the negative impact of solitary confinement on many prisoners, although access to such items and conditions can ameliorate any prison experience to a certain extent. But as the Colorado report concludes, the availability of modern technology, such as videoconferencing, is not always positive for the prisoners since “it also increases the degree of isolation experienced by inmates.”
Therefore, it is unfortunate that the Colorado study does not explore this issue convincingly, i.e., measuring the relative level of psychologically meaningful social contact in administrative segregation (AS), punitive segregation, and general population (GP). If we look closer at the Colorado study it describes basic AS conditions as single-cell confinement for around 23 hours per day. In AS, prisoners are given five 1-hour recreation spells each week, as well as three 15-minute showers (although apparently inmates use less time for showers). Prisoners are escorted to recreation in “full-restraints.” Depending on custody level, inmates are allowed either two 2-hour noncontact visits per month (Level 2) or four 3-hour visits per month (Level 3). Phone calls for those in the Colorado State Penitentiary apparently amounted to only a few minutes daily. If we look at both recreation, visits, and showers, an inmate on level 2 will apparently (assuming he receives visitors) stay at least around 23 hours in his cell on a daily basis, while those on level 3 get two more hours out of their cell on a weekly basis (once again assuming that they receive visits) – i.e. less than 20 minutes less cell time on a daily basis.
In addition to the above, there is some contact with mental health clinicians who do monthly rounds and occasional “mental health sessions” for one to two hours per week. Furthermore inmates in AS go through a “Quality of Life Program,” which includes cognitive classes, but as far as I can see this does not result in increased social contact since these classes, along with some recreational activities, take place over the television.
Punitive segregation, where many inmates stayed prior to AS, is single-cell confinement for 23-24 hours per day, during which inmates only come out for recreation and showers in the living unit. So most inmates stay inside the segregation unit during their entire stay and are “placed in full-restraints” if escorted out of the cell. Inmates in punitive segregation are not allowed to work or participate in any programs or education, and do not have a television.
Descriptions of these conditions indicate that the amount of psychologically meaningful social contact is extremely scarce in both AS and punitive segregation, with the latter regime apparently allowing even less out-of-cell time and social contact. There is, however, one unclear factor. According to the Colorado
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report, the inmates in AS can communicate with sign language and they can also yell to each other. Exactly how much and what kind of contact this results in is not described. Furthermore, GP conditions are not described along with the amount of social contact allowed under that regime.
Basically, it is somewhat unclear in the Colorado study how much meaningful social contact inmates in AS had access to during the study. AS conditions suggest that they had very limited access to such contact, although it is not entirely clear what level of communication was allowed through yelling and sign language, where especially the former might potentially yield some level of meaningful contact. Furthermore, it is unclear how much staff contact inmates have, although it is seemingly not a lot.
To confuse matters even more, there was “contamination across groups” meaning that “all offenders in AS were not confined in segregation for their entire period of participation in the study” and inmates in GP may “at some time during their study participation [have] been placed in punitive segregation or even AS.” In fact, when looking at “pure cases” of continuous AS, there were only 26 among the mentally ill and 39 among the non mentally ill, and even more alarming, there were only 13 “pure cases” of continuous GP prison time among the mentally ill GP control group (GP-MI) and 11 “pure cases” of continuous GP prison time among the non mentally ill GP control group (GP-NMI). This means that out of the 33 GP-MI and 43 GP-NMI who participated in the study (some of which later dropped out) only 13 GP-MI and 11 GP-NMI spent their entire study time in GP conditions. So the GP control group was not really a GP control group at all since the majority of these experienced either AS or punitive segregation during their participation in the study, and in addition most – perhaps all – experienced AS immediately prior to their AS hearing, after which they went into GP.
The Colorado researchers looked at their “pure cases” and found no major differences between these and other GP inmates. Then, they disregarded the problem, although such a finding questions the validity of their self-reported data and the setup of the entire study. Under all circumstances, the Colorado study is in fact not a study comparing segregation/solitary confinement with non-segregation/solitary confinement, since most of the GP inmates experienced solitary confinement during the study.
Equally important are uncertainties surrounding the levels of meaningful contact the study participants had prior to the start of the study. It is unclear how many participants came from solitary confinement when they entered AS or how much time they spent under such conditions before their initial tests. If some came directly from GP conditions to AS, then it is a problem that we do not know what that means in terms of a change in the level of available, meaningful social contact. We do know that some inmates – although not how many - came directly from punitive segregation and given the way these conditions are described in the Colorado study it seems likely that these inmates experienced better conditions with more meaningful contact when they entered AS. In that case, it is hardly surprising that the study found positive developments between the first and second testing of the inmates.
Were the study participants harmed by solitary confinement prior to the study?
The mental health of the Colorado inmates when they entered AS is very important, as are the conditions they arrived from prior to the start of the study. Needless to say, it puts the Colorado study in different light if many participants were actually in segregation prior to the start of the study. Unfortunately, the Colorado study is somewhat unclear about this.
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The Colorado report states that “all study participants classified to AS were waitlisted for and placed in CSP,” which as far as I understand means that they were living in AS conditions when waiting for their AS hearing. The introduction to the report says something slightly different, however, when it states that “in the time leading up to and during their AS hearing, inmates have typically been in segregation.” So some prisoners were apparently not in segregation? The Colorado authors “recognized that significant changes could occur while inmates were held in segregation at their originating facility.” Therefore, they collected a pre-baseline measure “as close to the AS hearing as possible.”
In order to use the study to discuss the effects of solitary confinement, we need to know exactly how many were in segregation prior to the study and, even more importantly, we need to know for how long those subjected to a pre-baseline measure had been in segregation before they were subjected to the pre-baseline measure. This information is crucial and seems lacking in the report. All we are told is that pre-baseline measures were collected “as close to the AS hearing as possible.” But what does this mean in practice? The question, of course, involves the extent to which participants were possibly affected by solitary confinement prior to the start of the study. This is important since we know from other research that reactions to solitary confinement vary from one individual to another, but they “often set in very quickly.” (Thelle & Traeholt, 2003, p.769)
The Colorado report concludes that “all of the study groups, with the exception of the GP-NMI group, showed symptoms that were associated with the SHU syndrome. These elevations were present from the start and were more serious for the mentally ill than non-mentally ill.” So if many study participants had been subjected to segregation prior to the study that would likely explain their symptoms. In other words, the study participants were already damaged by solitary confinement when the study began, and the Colorado study shows us that these prisoners continued to show “symptoms that were associated with the SHU syndrome” during their time in AS.
Furthermore, positive developments between the first and second test could be explained by the transfer from punitive segregation conditions to apparently better AS conditions, which include a more meaningful form of social contact (visits). Seen in this light, the results of the Colorado study are in line with previous research. The AS inmates in Colorado got slightly better when they had access to slightly more meaningful social contact, but they remained in a very bad condition, and continued to show symptoms, as they stayed in solitary confinement.
How was the self-reported data obtained?
According to the Colorado study, all the self-reported data were collected by one field researcher who was a female university employee with CDOC training and badge that allowed her unescorted access to the prison facilities. The field researcher had an undergraduate degree and is not the responsible author. This is a very big difference in contrast to Danish and Norwegian studies, where the actual researchers who designed the studies and wrote the reports were trained psychiatrists and psychologists and also operated as field researchers. They accessed the health of the study participants themselves and did the in-depth interviews. In my opinion, this is the only serious and professional way to design and conduct a study about health in prison, which includes obtaining data directly from prisoners. Sending a “researcher” who is neither a health practitioner nor a PhD-level researcher with experience doing prison research, into a prison in order to access the health of prisoners by collecting self-reported data simply means that the
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data are likely to be unreliable. That the field researcher had to report to an employee of the prison system studied (the leading author of the report) is also problematic.
The Colorado report itself describes instances in which the self-reported data appeared questionable. When this occurred, the field researcher apparently asked prisoners to retake the test if they admitted to “not being truthful.” If study participants said they were being honest and the researcher still did not believe them, she “marked the test as questionable.” This validation process seems outright naive. On what grounds did the university’s inexperienced field researcher assess whether or not the prisoners were “being truthful” about their psychological problems and mental health? This obviously requires education, experience, and psychological or medical knowledge. Seen in this light, it is interesting to note that when the Colorado study authors removed persons “with questionable or inconsistent responses” it “did not change the overall effects and results” so they used all the responses in their analysis. This raises serious questions about the field researcher's capacity to assess whether or not the prisoners were 'truthful' and, once again, raises questions about the reliability of all of the self-reported data.
Professional researchers report that it can be difficult to learn about symptoms suffered by isolated inmates since many (male prisoners in particular) try to hide their condition (Smith, 2006). Researchers also explain that it is often extremely difficult, traumatic, and painful for formerly isolated individuals to talk about their experience of solitary confinement: “A few studies seem to explain the fact that some inmates do not complain and seem to adapt more or less peacefully to solitary confinement as a sign of a healthy coping strategy, while others explain this as an unhealthy sign of social withdrawal typically accompanied by severe psychological problems. Such problems often will be discovered only by personal in-depth interviews in a positive (therapeutic) atmosphere.” (Smith, 2006, p. 474; see also Koch, 1982; Toch, 1992; Jackson, 1983)
King, who has interviewed many supermax prisoners, observes that a significant number of these prisoners “found it extremely difficult to bring themselves to talk about their experience” and only after “considerable persistence some prisoners came to regard a researcher from another culture, who treated them with respect and clearly wanted to learn, as an acceptable proxy and began to open up.” (King, 2005, p.130)
Furthermore, the study authors made a mistake by advising inmates that “the purpose of the study was to learn about their adjustment to prison.” It is well known that within a prison community it is important for prisoners to seem capable of adjusting to prison, and those who do not manage to do this are typically placed at the bottom of the prison hierarchy. Approaching study participants with an overall question regarding “their adjustment to prison” in other words makes it likely that they will try to hide possible weaknesses and try to convey the impression that they cope and adjust relatively well. In a prison context, it is not an “open” but a “leading” question.
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Crisis events, hospitalization, and objective data
The Colorado researchers describe initial attempts to include “crisis events” such as self-mutilation or suicide attempts recorded by prison clinicians in their study, but they decided not to, because the number of participants who experienced these events allegedly was too small and because crisis events could occur without staff’s knowledge. The authors conclude that the available data “raise more questions than they provide answers.” If we look carefully at these data, however, they certainly raise some questions.
If we compare the number of crisis events among the mentally ill in GP and in AS, we find that throughout the study two persons had two crisis events in the former group, while 10 persons had 26 crisis events in the latter group (one suicide attempt, 14 cases of suicidal/self harm ideation, and 11 cases of self harming behavior). This seems a significant difference with respect to important behaviors that have been identified in past research as among the adverse effects of solitary confinement. The numbers are small, but, still, five times as many prisoners in the AS-MI group had crisis events compared to the GP-MI group, and 13 times as many crisis events occurred in the AS-MI group compared to the GP-MI group. Furthermore, 11 crisis events in the AS-MI group were associated with psychotic symptoms compared to one such crisis event in the GP-MI group.
These data are important in two ways. They suggest that solitary confinement had a negative impact on the health of the mentally ill, but also, even more importantly, they seriously question the reliability of the study’s self-reported data. These crisis event data raise questions about why the difference among the AS-MI and GP-MI groups was not found through the self-reported data. After all, a significant number of participants in the AS-MI group had crisis events and the prevalence of these events were much higher than in the GP-MI group. Furthermore, such crisis events would normally be considered “the tip of the iceberg.” A likely hypothesis would be that a prison environment producing significantly more self-harm and suicidal thoughts than other prison regimes would also reveal many more “lesser” psychological problems. One cannot help asking how and why the Colorado researchers chose to ignore this data, which in fact questions the entire setup of their study?
Conclusion
The Colorado study suffers from several major problems. First, some of the most relevant research available was not used and it was wrongfully claimed that previous research was biased and flawed. Secondly, the way the self-reported data was collected very likely made these data unreliable. Thirdly, the study authors ignored that their crisis data seriously questioned the validity of their self-reported data and in fact suggested that AS might have serious ill effects. Fourth, the majority of the study participants apparently came directly from segregation, and were thus likely to be harmed from solitary confinement before the study started. Finally, the Colorado study in fact did not compare segregation/solitary confinement with non-segregation/solitary confinement since most of the GP participants also went into solitary confinement during the study. Imagine a similar situation with, for example, medical research on the effects of a new type of medicine where it turns out that most of the control group participants also received the new medicine being tested both during the study and prior to study start. It does not make sense. It is therefore extremely difficult to gain any valuable information about the effects of AS and solitary confinement from the Colorado Study.
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Author note: Peter Scharff Smith, Ph.D., has studied the history, practice, and effects of solitary confinement for more than a decade, Currently a Senior Research Fellow at the Danish Institute of Human Rights, his published articles on solitary confinement have appeared in, for example, Crime and Justice, Criminal Justice & Behavior, Torture, and Punishment & Society. Email: pss@humanrights.dk.
References
Andersen, H.S. 2004. “Mental Health in Prison Populations: A Review – with Special Emphasis on a Study of Danish Prisoners on Remand.” Acta Psychiatrica Scandinavica Supplementum 110(424):5-59.
Andersen, Henrik Steen, Dorte Sestoft, Tommy Lillebæk, Gorm Gabrielsen, and R. Hemmingsen. 2003. “A Longitudinal Study of Prisoners on Remand: Repeated Measures of Psychopathology in the Initial Phase of Solitary versus Nonsolitary Confinement.” International Journal of Law and Psychiatry, 26, 165–77.
Andersen, Henrik Steen, Dorte Sestoft, Tommy Lillebæk, Gorm Gabrielsen, R. Hemmingsen, and P. Kramp. 2000. “A Longitudinal Study of Prisoners on Remand: Psychiatric Prevalence, Incidence and Psychopathology in Solitary versus Non-solitary Confinement.” Acta Psychiatrica Scandinavica, 102(1):19–25.
Andersen, Henrik Steen, Tommy Lillebæk, and Dorte Sestoft. 1997. Efterundersøgelsen - en opfølgningsundersøgelse af danske varetoegtsarrestanter. Copenhagen: Schultz.
Andersen, Henrik Steen, Tommy Lillebæk, Dorte Sestoft, and Gorm Gabrielsen. 1994. Isolationsundersøgelsen: Varetoegtsfængsling og psykisk helbred. Vols. 1–2. Copenhagen: Schultz.
Cloyes, K., Lovell, D., Allen, D., and Rhodes, L. 2006. “Assessment of Psychosocial Impairment in a Supermaximum Security Unit Sample.” Criminal Justice and Behavior, 33, 760.
Gamman, Tor. 2001. ”Om bruk av isolasjon under varetektsfengsling.” Nordisk Tidsskrift for Kriminalvidenskab 88:42–50.
Gamman, Tor. 1995. ”Uheldige helsemessige effekter av isolasjon. En klinisk studie av to grupper av varetektsinnsatte.” Tidsskrift for den norske Loegeforening, 115:2243–46.
Haney, C.. 2009. “The Social Psychology of Isolation: Why Solitary Confinement is Psychologically Harmful.” Prison Service Journal, 181, 12-20.
Haney, C.. 2008. “A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons.” Criminal Justice and Behavior, 35, 956-984.
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Jackson, Michael. 1983. Prisoners of Isolation: Solitary Confinement in Canada. Toronto: University of Toronto Press.
King, Roy D. 2005. “The Effects of Supermax Custody.” In Liebling and Maruna, eds. The Effects of Imprisonment. Portland, OR: Willan Publishing.
Koch, Ida E. 1982. “Isolationens psykiske og sociale følgevirkninger.” Månedsskrift for Praktisk Lægegerning 60(June):369–32.
Lovell, David. 2008. “Patterns of Disturbed Behavior in a Supermax Population.” Criminal Justice and Behavior, 35, 985.
O’Keefe, M.L., K.J. Klebe, A. Stucker, K. Strum, and W. Leggett. 2010. One Year Longitudinal Study of the Psychological Effects of Administrative Segregation. Colorado Springs, CO: Colorado Department of Corrections.
Sestoft, Dorte Maria, Henrik Steen Andersen, Tommy Lillebæk, and Gorm Gabrielsen 1998. “Impact of Solitary Confinement on Hospitalization among Danish Prisoners in Custody.” International Journal of Law and Psychiatry 21:99-108.
Shalev, Sharon. 2009. Supermax: Controlling Risk through Solitary Confinement, Portland, OR: Willan Publishing.
Smith, Peter S. 2006. “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature.” In Michael Tonry, ed. Crime and Justice, 34, 441-528.
Stang, Jan, Jens Moe, Inge Arne Teigset, Bjørn Østberg, and Tron Anders Moger. 2003. “Fanger i sikkerhetscelle - en utfordring.” Tidsskrift for Den norske Lægeforening. 123(13–14):1844–46.
Thelle, Hatla, and Anne-Marie Traeholt. 2003. “Protection of Suspects’ Rights versus Investigation Needs: The Use of Solitary Confinement in Denmark.” In How to Eradicate Torture: A SinoDanish Joint Research on the Prevention of Torture, edited by Morten Kjærum, Xia Yong, Hatla Thelle, and Bixiaoqing. Beijing: Social Sciences Documentation Publishing House.
Toch, Hans. 1992. Mosaic of Despair: Human Breakdowns in Prison. Princeton, NJ: Princeton University Press.
Volkart, Reto, A. Dittrich, T. Rothenfluth, and W. Paul. 1983. “Eine kontrollierte Untersuchung über psychopathologische Effekte der Einzelhaft.” Schweizerische Zeitschrift fu¨ r Psychologie und ihre Anwendungen, 42:25–46.
Volkart, Reto, Thomas Rothenfluth, Erner Kobelt, Adolf Dittrich, and Klaus Ernst. 1983. “Einzelhaft als Risikofaktor für psychiatrische Hospitalisierung.” Psychiatrica Clinica, 16:365–77.

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Effects of Solitary Confinement 11

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EXHIBIT 19 Grassian & Kupers, "The Colorado Study vs. The Reality of the
Supermax"

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EXHIBIT 20 Zinger et al., "The Psychological Effects of 60 Days in Administrative Segregation"

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SEGREGATION

SEGREGATION

The psychological effects of 60 days in administrative segregation

Ivan Zinger CorrectionalService of Canadaand Carleton University Ottawa, Ontario Cherami Wichmann Carleton University Ottawa, Ontario and D.A. Andrews Carleton University Ottawa, Ontario

Les participantsdans cette 6tude sont 60 d~tenus canadiens des p~nitenciersde Kingston, de Collins Bay et de Millhaven qui (a) avaient &6 places en s~grgation&leur propredemande ou involontairementet y avaientpasses 60jours, ou (b) avaient&6 choisis au hasarddans la population carccraleg~n~rale et y 6taientdemeurcs pour au moins 60 jours. Les participantsont dfd completerdes tests psychologiqueset tre interviewcs pour determiner leur sant6 mentale et leurfonctionnement
psychologique. Ce processus d' valuation a 6ti r~pt6 aprs30jours et apris 60jours. Les dftenus en s~gr~gationavaient les m~mes niveaux acadcmiques,les mimes histoirescriminelleset les momes besoins que les d~tenus de la population carc~rale g~n~rale. Les d~tenus en s~gr~gation,toutefois, avaient des personnalitsdiffrentes et 6taient considr s plus dangereux que les dtenus de la population carccrale g~nrale. Defagon gn~rale,ils ont une sant6 mentaleplus dct~rior~eet
ilsfonctionnaientmoins bien. Parailleurs,il n'y avaitpas d'indicationet
l'effet que la p~riodeen s~gr~gationavait d~trior6defa(on marquante
leur sante mentale ou leurfonctionnementpsychologique.

Participantsin this longitudinal study included 60 Canadianinmates from Kingston, Collins Bay, and Millhaven Penitentiarieswho hadeither been (a) voluntarilyor involuntarilyplaced in administrativesegregation and remained in segregationfor 60 days, or (b) randomly selectedfrom the general inmate population and remained in the general inmate populationfor 60 days. Participantsinitially completed written

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psychological tests and took part in a structured interview that assessed their overall mental health and psychological functioning. The same procedure was undertaken 30 days later, and again 60 days later. Segregatedprisonershad similareducation levels, offence historiesand criminogenicneeds than non-segregatedprisoners. Segregatedprisoners had distinctpersonalities,however,and were higher risk cases than nonsegregatedprisoners. Overall, segregatedprisoners had poorermental health and psychologicalfunctioning. There was no evidence, however, that, over a period of 60 days, the mental health and psychological functioning of segregatedprisonerssignificantly deteriorated.
In Canada, the percentage of segregated prisoners has more than doubled in the last ten years, now representing approximately 5.5% of federally sentenced prisoners (Pierson 1988; Kane 1997). However, little research has been conducted on these prisoners. Moreover, many scholars have assessed the literature on penal segregation as sparse, conflicting, rife with speculations, and based upon far-fetched extrapolations and generalizations (Barak-Glantz 1983; Brodsky and Scogin 1988; Suedfeld, Ramirez, Deaton, and Baker-Brown 1982; Wormith, Tellier, and Gendreau 1988).
Notwithstanding the inadequacy of the existing research, two conflicting perspectives on the effects of segregation on prisoners have emerged. Some researchers describe segregation as "cruel and unusual punishment" and psychologically damaging (Benjamin and Lux 1975; 1977; Grassian 1983; Immarigeon 1992; Jackson 1983; Korn 1988; Luise 1989; Martel 1999), whereas others provide evidence that segregation has little, if any, negative psychological effect on prisoners (Bonta and Gendreau 1995; Ecclestone, Gendreau, and Knox 1974; Gendreau, Freedman, Wilde, and Scott 1972; Gendreau and Bonta 1984; Suedfeld et al. 1982).
Resolving the question of the impact of segregation carries important policy implications for areas such as: (a) the level and frequency of monitoring and assessment required for prisoners in segregation (mandatory vs. upon request); (b) programming to reduce mental health deterioration (need for, and type of, intervention programs); and (c) the adequacy of current assessment strategies (what aspects of psychosocial functioning are important to assess, and which are less affected by segregation).

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This article contains two sections. First, a review of methodological issues highlights the current unsatisfactory state of the literature on the effects of segregation. This review shows that supporters of one view often fail to appreciate the findings of the opposing view, as well as to recognize the limitations of their own findings when drawing their conclusions. The ability to generalize the results of these studies is affected to varying degrees by improper attention to methodological shortcomings of the research conducted. Second, the findings of a research project which addressed the shortcomings of the existing literature is presented.
Part I: Evaluation of existing research on segregation: A review of methodological
shortcomings
1. Reliance on qualitative data (casual observations, interviews and anecdotes)
Many authors use anecdotal evidence to support their claims (Benjamin and Lux 1975, 1977; Brodsky and Scogin 1988; Grassian 1983; Jackson 1983; Korn 1988; Martel 1999). These authors often take selected but powerful excerpts from interviews of segregated prisoners or mental health professionals with experience with segregated prisoners to provide general evidence of the harmful effects of segregation. Some authors rely on testimony on the use of isolation in the 19th century to produce corroborative evidence of the harmful effects of segregation in today's correctional context (Grassian 1983; Immarigeon 1992; Luise 1989). Others cite human rights violation litigation to depict the general conditions of confinement and treatment of segregated prisoners, as well as the psychological and physical harm that ensues (Benjamin and Lux 1977; Birkinshaw 1981; Jackson 1983; Luise 1989).
The evidence of the damaging effects of segregation on prisoners adduced by these authors is very disturbing, and cannot be ignored. Because of the nature of the methodology, it is often unclear whether the pathologies displayed by some segregated prisoners were directly attributable to the conditions of confinement in segregation or whether these prisoners

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displayed similar pathologies in the general prisoner population or in the community, prior to being segregated (Gendreau and Bonta 1984).
In addition, Suedfeld et al. (1982) found that some authors inappropriately use findings from case studies of persons who experienced severe abuse and sensory deprivation to illustrate the damaging effects of segregation. Testimony of tortured political and war prisoners who were denied food, clothing, medical assistance and procedural fairness are at times relied upon to establish the damaging effects of segregation in contemporary North American correctional settings (Benjamin and Lux 1975; Korn 1988). The generalization of the findings of these case studies has been questioned (Gendreau and Bonta 1984; Suedfeld et al. 1982). Isolation in a political or war camp is not comparable to the highly regulated and formalized procedures for imposing segregation on prisoners in North American penitentiaries. Conditions of confinement, procedural safeguards, and the level of safety and security provided to the prisoners differ to such an extent that a comparison may well be inappropriate (Gendreau and Bonta 1984; Suedfeld et al. 1982).
2. Conditions of confinement
One of the problems with segregation research stems from difficulties in defining the constructs being evaluated. Many terms, such as administrative segregation, dissociation, isolation, seclusion, protective custody, and solitary confinement are used, often interchangeably, to describe various restrictive environments. These terms encompass a wide range of conditions of confinement in which the number of restrictions on freedom of association and freedom of movement may vary, and in which levels of perceptual deprivation, sensory deprivation, and social isolation may also vary. There is such a diversity in the nature of conditions of confinement used in segregation research that aggregating all studies under the same "solitary confinement" label has been described by some as inappropriate (Suedfeld et al. 1982).
Many authors recognize the importance of the environment with respect to its impact upon the segregation experience and the difficulty associated with generalizing results (Grassian 1983). Conditions of confinement and daily routine vary so greatly

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among correctional institutions (Kane 1997; Vantour 1975) that results derived from one institutional setting may not be applicable to others. For example, the frequency and quality of interactions with staff or other prisoners, the physical layout of segregation cells (e.g., solid doors, cell size, etc.), the size of the exercise yard, the availability of recreational equipment and hobby items, and the access to personal effects, programs, and services, may all affect the segregation experience. As a result, the majority of studies describe, at great length, the conditions of confinement and the daily routine of segregated prisoners being studied.
Many authors have reviewed the proliferation of control units in the United States and abroad in an attempt to determine their effects on prisoners' mental and physical health (Birkinshaw 1981; Coyle 1987; Dowker and Good 1993; Korn 1988: Immarigeon 1992). The establishment of control units in the United States originated in 1963 when a penitentiary in Marion (Illinois) was built to replace Alcatraz (Coyle 1987). Since then, more than 33 States have comparable Marion-like facilities (Immarigeon 1992). Control units provide a good illustration of the difficulty in defining the constructs being evaluated. Although control units are not formally recognized by correctional authorities as segregation units, and although they sometimes impose fewer restrictions on prisoners than in traditional segregation units, they often impose many similar conditions of confinement (Coyle 1987; Dowker and Good 1993; Immarigeon 1992; Korn 1988). For example, Dowker and Good (1993) describe some of the defining features of these institutions. Prisoners are confined in small cells for 22 or 23 hours per day. The cells are often equipped with solid steel doors, which prevent any communication between prisoners. Further, these institutions are often equipped with remote electronic sliding doors, which minimize, if not eliminate, most contact with correctional staff. There are no communal dining, exercise, or religious services, and few, if any, work opportunities.
3. Relevance of field and laboratory experiments on sensory deprivation
Most of the experimental studies on the effects of segregation come from the field of sensory deprivation. Gendreau and his

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colleagues have generated and evaluated many theories and hypotheses on sensory deprivation in the correctional context. For example, Gendreau and colleagues examined whether: isolated prisoners show higher arousal potential because of a lower arousal level induced by solitary confinement (Gendreau et at. 1972); segregation enhances learning (Gendreau, McLean, Parsons, Drake, and Ecclestone 1970); isolated subjects desire a lower level of stimulation (visual and auditory sensory input) after a deprivation experience (Gendreau, Freedman, Wilde, and Scott 1968); and stress levels, as indicated by adrenocortical activity, can detect whether solitary confinement is harmful (Ecclestone et al. 1974).
Others have commented upon or tested theories and hypotheses of sensory deprivation in the correctional context as well. For example, Benjamin and Lux (1977) argue that segregation is harmful because it dramatically reduces levels of needed stimulation. Dowker and Good (1993) believe that prisoners who are segregated for long periods of time may be deprived of necessary meaningful human contacts, and, as a result, these prisoners have difficulties in coping with normal social situations again.
Suedfeld et al. (1982) argue that the comparison between field or laboratory experiments on isolation and stimulus reduction and today's typical North American segregation environment is inappropriate. They contend that it is highly questionable whether the typical segregation unit in fact imposes much reduction in stimulus input. They state that most segregated prisoners can communicate with guards and other prisoners and have access to reading material, mail, lawyers, other visitors, and frequently possess radios and television sets. Gendreau and Bonta (1984) argue that the conditions of confinement in many of the sensory deprivation and isolation experiments are more severe than those found in today's segregation units. They argue that, since these field and laboratory experiments show little support for the position that sensory deprivation and isolation are psychologically damaging, the conclusions drawn from these studies are especially informative and relevant.

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4. Selection of subjects
4.1 Use of Volunteers. Experimental studies on segregation rely primarily on volunteers who agree to be segregated for a fixed period of time. Some authors have been reluctant to accept results of studies which have relied on volunteers (Arbour 1996; Jackson 1983; Vantour 1975). Walters, Callagan, and Newman (1963) believe that the problem with using volunteers is that they are apparently not too frightened by the prospect of facing a few days of isolation, and they may have personality characteristics and past experiences which enable them to cope with, and remain unaffected by, segregation.
In Canada, approximately half of all prisoners placed in segregation are confined against their will (Kane 1997). In addition, it is questionable whether "voluntary" segregation is truly voluntary. Arguably, most prisoners would prefer to remain in the general prisoner population if the threat to their personal safety was to be removed. Nonetheless, some authors claim that, based on their "clinical experience", prisoners who initially strongly object to being placed in segregation appear to adapt as well as prisoners who voluntarily request isolation (Ecclestone et at. 1974; Gendreau et al. 1972).
In addition to the issue of using volunteers, the use of alternative populations may also lead to limited generalization of findings. For example, the use of university students who, in general, exhibit good adjustment, stable personality, and higher levels of intelligence, education, and socioeconomic status may not lead to accurate comparisons with the segregated prisoner population. Suedfeld et al. (1982) argue that attempting to use findings from these sources as an indication of what one can expect from prisoners in segregation is inappropriate because it is not relevant to the phenomenon being evaluated. The high prevalence of severe mental disorders among segregated prisoners (Hodgins and Cote 1991) makes any comparison with university student samples somewhat questionable.
4.2 Use of prisoners involved in human rights violation litigation. Some studies on the negative effects of segregation have relied on segregated prisoners who were involved in lawsuits alleging violations of their constitutional rights (Brodsky and

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Scogin 1988; Grassian 1983). Subjects involved in human rights violation litigation may have a special interest in demonstrating that their conditions of confinement have negative psychological and physiological effects. Therefore, the results of studies which rely on such prisoners will always remain questionable. Further, Suedfeld et al. (1982) suggest that prisoners engaged in litigation are perhaps not representative of average prisoners; their reactions to segregation may not be the norm. Similarly, Gendreau and Bonta (1984) question the reliability of information of case studies performed by Jackson (1983). They suggest that many of Jackson's interviewed prisoners were notorious, far from representative, and had filed an inordinately large number of grievances, legitimate or otherwise, against the prison system.
4.3 Screening out subjects with psychiatric history. A significant proportion of segregated prisoners have a psychiatric history (Hodgins and Cote 1991; Motiuk and Blanchette 1997). Some studies purporting to examine the impact of segregation have screened-out such subjects (Ecclestone et al. 1974; Gendreau et al. 1972). As a result, findings from these studies may be difficult to apply to the population of segregated prisoners.
Hodgins and Cote (1991) report that, in their sample of 32 long term segregated prisoners, 31% suffered from some kind of severe lifetime mental disorder (25% schizophrenia, 3. 1% major depression, and 3.1% bipolar disorder). The rate of schizophrenia among this sample was more than three times the rate of the disorder among non-segregated prisoners. The rate of major depression in their sample was lower than the rate in the general prisoner population. This suggests that non-disruptive mentallyill prisoners may remain in the general prisoner population, whereas prisoners who are "disturbed and disruptive" are isolated from the general prisoner population.
Wormith et al. (1988) evaluated the attributes of prisoners in protective custody (PC) in a provincial institution. PC prisoners typically can associate among themselves but do not have access to the same level of programs, services, and privileges offered to the general prisoner population. They found that PC prisoners were more likely to have a history of psychiatric problems. They suggest that PC prisoners' psychological weaknesses and idiosyncratic behaviours may not be well tolerated by the general

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prisoner population, and it appears that inappropriate behaviours are often punished regardless of the underlying basis for the conduct (Carriere 1989; Gendreau, Tellier, and Wormith 1985; Rold 1992). Consequently, numerous prisoners with mental disorders are segregated (Gendreau et at. 1985; Rold 1992).
Little research has focused on the effects of segregation on prisoners with psychiatric conditions. Many authors argue that segregation can exacerbate some existing psychiatric conditions (Haney 1993; Hodgins and Cote 1991; Wadeson and Carpenter 1976). For example, Wadeson and Carpenter (1976) concluded that segregation stimulates hallucinatory activity and provokes paranoia among some mental health patients.
The existence of psychiatric problems may very well be a defining characteristic of the population of segregated prisoners. Moreover, findings from the studies reviewed above underline the importance of not restricting research samples to those without a history of psychiatric disorders.
5. Reasons for segregation
Prisoners may voluntarily request segregation or be involuntarily segregated for a multitude of reasons (Kane 1997; Gendreau et al. 1985; Wormith et al. 1988). The most common reasons given by prisoners for seeking various forms of PC and segregation include: conflicts in the general population (e.g., gambling and drug debts); the nature of the prisoner's offense; whether the prisoner is suspected of being an informant; the existence of personality problems; the presence of phobias (including fear of gays); being the target of sexual aggression; and escaping the crowded and often violent atmosphere of maximum security (Gendreau et al. 1985).
As noted above, approximately 50% of segregation placements are involuntary in nature (Kane 1997). Research on segregation thus far has failed to assess the effects of long term segregation on these prisoners. Such an omission has rendered generalization of findings even more difficult. For example, the underlying reasons for segregating prisoners may influence their abilities to cope with the experience (Weinberg 1967). Whether they view their placement in segregation as a result of their own behaviour

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or as the result of being an innocent victim of circumstances beyond their control may influence their ability to cope with the more restrictive regime of segregation.
6. Attrition
Some segregation studies reported attrition among subjects participating in the experimental condition (i.e., segregation), and provided little, if any, explanations (Ecclestone et al. 1974; Walters et al. 1963; Weinberg 1967; Zubek, Bayer, and Shephard 1969). For example, Ecclestone et al. (1974) reported a 32% attrition rate, and Weinberg (1967) reported a 68% attrition rate. Even when more than adequate monetary incentives are provided, attrition has been reported (Bexton, Heron, and Scott 1954; Zubek et al. 1969).
Attrition is a major drawback to psychological research in general. The problem with attrition is especially relevant to the evaluation of the psychological effects of segregation. Subjects who decide no longer to participate in the experiment may be the same individuals who would not cope well with the conditions of segregation and would be negatively affected by them.
7. Reliance on cross-sectional research
Cross-sectional research is inadequate for evaluating the effects of segregation. The results of cross-sectional segregation research are limited to the identification of differences between groups (segregated and non-segregated). The results of this type of research do not permit inferences concerning the causes of these differences (Suedfeld et al. 1982). Nevertheless, after conducting a cross-sectional study and observing poorer mental and physical health among segregated prisoners than among nonsegregated prisoners, some authors have attributed the cause of such poorer health to segregation (Brodsky and Scogin 1988; Miller and Young 1997). The possibility that segregated prisoners already were of poorer mental and physical health prior to their segregation must at least be considered as an alternative explanation in cross-sectional studies.
8. Duration and indeterminate nature of stay
Another problem with current experimental studies on segregation surrounds the issue of the length and indeterminate

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nature of the stay (Jackson 1983; Suedfeld et al. 1982). In previous experimental research, the length of stay is limited to ten days or less (e.g., 2 days: Gendreau et al. 1970; 4 days: Walters et al. 1963; 5 days: Weinberg 1967; 7 days: Gendreau et al. 1972; Gendreau et al. 1968; Gendreau, Horton, Hooper, Freedman, and Scott 1968; Zubek et al. 1969; 10 days: Ecclestone et al. 1974). Moreover, volunteers for these studies know exactly when the experiment will end, and that they can end their participation at will.
The reality of segregation is that the length of stay is always unknown, and more than 80% of prisoners spend more than 10 days in segregation at any one time (Kane 1997). Suedfeld et al. (1982) argue that making general statements on the effects of segregation without qualifying the length of stay is inappropriate. Bonta and Gendreau (1995) specifically state that their conclusion that segregation is not detrimental only applies to periods of segregation of 10 days or less. As these studies confirm, generalizing the results of experimental studies beyond 10 days is questionable.
9. Lack of comparison group
Some studies utilizing structured and non-structured interviews with segregated prisoners have failed to include a comparison group of non-segregated prisoners (Brodsky and Scogin 1988; Grassian 1983; Martel 1999). Brodsky and Scogin (1988) interviewed 45 segregated prisoners about their confinement in solitary confinement but did not include a control group. Although they reported disturbing negative psychological and physiological effects, since no comparison group was included, the results are of little value because it remains undetermined whether prisoners in the general prisoner population would have reported similar effects about their confinement in the general prisoner population.
10. Prisoner/staff interaction and the punitive reality of segregation
Several authors have suggested that the relationship between staff and prisoners is an important factor which may affect how prisoners cope with segregation (Benjamin and Lux 1977: Bonta

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and Gendreau 1995; Carriere 1989; Gendreau and Bonta 1984; Korn 1988; Suedfeld et at. 1982; Vantour 1975; Wormith et al. 1988). Prisoners may be more affected by the way they are treated by correctional staff than by the conditions of confinement typically found in North American segregation units (Bonta and Gendreau 1995; Gendreau and Bonta 1984; Vantour 1975).
Bonta and Gendreau (1995) argue that there is some evidence that, when prisoners are treated capriciously by management or correctional staff, psychological stress can result even in the most humane of prison environments. Harassment, physical violence, enforcement and non-enforcement of rules, and unpredictable withholding of privileges may play a greater role than complaints about physical conditions, the social isolation and the sensory deprivation associated with segregation (Suedfeld et al. 1982).
Many authors have found that contrary to legislative and policy provisions, the management of administrative segregation is based on a punitive philosophy, and that segregated prisoners have fewer rights, privileges, and access to programs and services than prisoners in the general prisoner population (Arbour 1996; Carriere 1989; Gendreau et al. 1985; Kane 1997; Tellier, Wormith, and Gendreau 1989; Vantour 1975). For example, Arbour (1996: xiii) concluded that the Correctional Service of Canada's management of administrative segregation was not in accordance with the law and its policies, and demonstrated a systemic "prison culture which did not value individual rights".
Wormith, Tellier, and Gendreau (1988) reported that correctional employees often have negative views towards, and discriminate against, segregated prisoners. They found that PC prisoners complained about the attitudes of correctional staff towards them and the adverse psychological effects of being in PC, whereas prisoners in the general population were more likely to complain about institutional living conditions, rules and regulations. Similarly, Carriere (1989) states that PC prisoners are often treated in a demeaning manner by correctional staff. Further, he contends that segregated prisoners are treated as maximum security prisoners regardless of the security risk they pose.

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For generalization purposes, the evaluation of the effects of segregation must include real interactions between staff and prisoners, and should not be limited to courteous interactions typically found in laboratory experiments.
11. Personality
The prisoners' personality or temperament may play a role in how they will be affected by segregation. Some personality characteristics may reduce tolerance for segregation, while other characteristics may enhance it (Suedfeld et al. 1982; Walters et al. 1963). Little, if any, research on the effects of segregation has focused on personality. Assessment of personality must be included in segregation research in order to identify prisoners' abilities and predispositions to cope with segregation.
12. Other factors
Segregation may have a detrimental impact on prisoners' chances of parole, reduce their chances of being admitted to a half-way house, and affect their security classification (Carriere 1989; Gendreau et al. 1985; Tellier, Wormith, and Gendreau 1989). Knowledge of these consequences may negatively affect how prisoners adapt to segregation. Further, a prisoner who was housed in a single cell prior to segregation may be reassigned to a "double-bunked" cell after a placement in segregation. This future loss of privacy may also affect how prisoners cope with the experience of segregation.
Complaints about other issues such as cold food and delayed response to requests for assistance (e.g., medication, telephone calls, counselors, reading material, etc.) may also influence the segregation experience (Suedfeld et al. 1982). In the segregation environment, these complaints cannot be viewed as trivial because they are often the only distractions available to break the monotony of the segregation experience.

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Part I1: Longitudinal study on the psychological effects of 60 days
in administrative segregation
Method
Design and procedures
Participants
Participants included prisoners from Kingston, Collins Bay, and Millhaven Penitentiaries who had either been (a) placed in administrative segregation and remained in segregation for 60 days (quasi-experimental group), or (b) randomly selected from the general prisoner population and remained in the general prisoner population for 60 days (comparison group). Data were collected over an eight month period beginning in October 1997.
Testing and procedures
Senior psychologists at the selected institutions supervised the data collection. The psychologists selected and trained/ oriented three research assistants (RA's) concerning institutional security protocols and the use of the psychological testing instruments. The RA's were graduates or students of psychology (one 4th year student, one M.A. candidate, and one M.A.).
Prisoners who were just placed (voluntarily and involuntarily) in administrative segregation and provided their informed consent were asked to complete written psychological tests and take part in a structured interview. After each session, participants were debriefed. The same procedure was undertaken 30 days later and again 60 days later if the prisoners remained segregated. Non-segregated prisoners were selected at random and underwent the same testing procedures at the same intervals.
Measures
The initial testing session (session one) lasted approximately two hours. In addition to the battery of tests which were utilized at each session, the initial session included a general measure of intelligence and a short personality inventory. Because

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performance on these additional instruments was not expected to fluctuate over 60 days, these measures were administered only once. The follow-up assessments conducted at 30 days (session two) and 60 days (session three) were therefore shorter, each lasting approximately one hour. The comparison group underwent the same testing procedure as the segregated group.
The measures which were selected for use in this study were chosen based on several criteria. Measures were selected which possessed acceptable psychometric properties, had a short administration time, and had been previously used with prisoner samples. Consideration was also given to measures which had been used in previous segregation research. Table 1 illustrates the list of measures which were selected for use in this study and their respective alphas (reliability estimates which measure internal consistency).
Additional data collection.
Physical conditions. Research assistants gathered information on the physical layout of the segregation units.
Prisoner intake assessment. All prisoners sentenced to penitentiaries (i.e., for prison terms exceeding two years) must complete the Offender Intake Assessment (OIA) prior to their penitentiary placement. In most instances, the OIA lasts eight weeks, and allows Correctional Service Canada (CSC) to render informed decisions with respect to placement, classification, and programming. During the OIA, information on prisoners is collected and stored on the computerized Offender Management System (OMS).
OIA information was retrieved on prisoners' current and past criminal history and the seven need domains (Employment, Marital/Family, Associates, Substance Abuse, Community Functioning, Personal /Emotional, and Attitude). Prisoners' scores on the Statistical Information on Recidivism (Nuffield 1982; SIR Scale) were also retrieved. The SIR score provides an estimate of the probability that an individual will re-offend within three years after release. Each prisoner's total score on the SIR Scale can range from -30 (very poor risk) to + 27 (very good risk).

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Table I Measures used and respective Alphas
Measures (initial assessment only)
Interview assessment NEO Personality Inventory (short form)
Neuroticism Extraversion Openness Agreeableness Conscientiousness Shipley
Measures (all three sessions)
Aggression questionnaire Balanced Inventory of Desirable Responding (short form) Beck Depression (abbreviated) Brief Symptom Inventory
Somatization Obsessive-compulsive Interpersonal Depression Anxiety Hostility Phobic anxiety Paranoid ideation Psychoticism Holden Psychological Screening Inventory Hopelessness scale Interview assessment State-trait Anxiety Inventory (State-short form) WAIS Sub-test: Digit Span WAIS Sub-test: Digit Symbol

Alpha*
n/a
.84 .70 .61 .71 .80 n/a
Alpha*
.89 .69** .89
.86 .83 .79 .84 .83 .85 .80 .80 .66 .84 .89 n/a .83 n/a n/a

Note: * Reliability estimates which measure internal consistency; ** Items 4, 7 and 9 were removed to improve psychometric properties.

Results
Descriptive findings
Conditions of confinement
Information on the conditions of confinement of segregation units at Collins Bay, Kingston, and Millhaven penitentiaries was collected. Table 2 describes the physical conditions at each

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penitentiary. Conditions of confinement at Kingston Penitentiary are divided into two sections because one of the segregation units is noticeably different from the others.

Table 2 Conditions of confinement in segregation at Collins Bay,
Kingston, and Millhaven Penitentiaries

Characteristic

Collins Bay

Institutions Millhaven K.P. 1

K.P. 2

Cell size (sq.ft) Ceiling height (ft./in.) Number of cells per range Solid door Yard size (sq.ft.) Concrete wall around yard Yard covered overhead with wired fence

80.6 7'10" 19 Yes 750 Yes
Yes

57.2 11'8" 16 Yes 1200 Yes
Yes

56 9' 20 Yes 1500 Yes
Yes

46 11'5" 37 No 1500 Yes
Yes

Participation and attrition
The refusal rate for participating in this study was 44% for segregated and 40% for non-segregated prisoners. Table 3 illustrates the number of completed sessions broken down by Group (i.e., segregated vs. non-segregated) and institutions. It shows that 83 segregated prisoners and 53 non-segregated prisoners participated in this study. Complete data for all three sessions (60 days) were only available for 23 segregated and 37 non-segregated prisoners.
The loss of participants from the segregated group was primarily due to releases to the general prisoner population or transitional units (i.e., protective custody), or transfers to other institutions. True attrition, the refusal to participate in a subsequent session, occurred in nine cases (10.8%). It should be noted that true attrition included cases in which prisoners expressed their intent to participate in the study but their conduct jeopardized the personal safety of the RA's (e.g., threats, and one incident in which a prisoner attempted to grab an RA). The average elapsed time after placement in segregation for session one, two and three was 3.6, 29.8 and 57.8 days respectively.

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For non-segregated prisoners, the loss of participants was mainly due to transfers to other institutions and placement in segregation. True attrition occurred in only two cases (3.8%).

Table 3 Number of completed sessions (S. 1, S.2, and S.3) broken down
by group and institutions

Segregated (n=83)

Non-Segregated (n=53)

Institution

S.1

S.2

S.3

S.1

S.2

S.3

Collins Bay

31

8

Kingston

19

12

Millhaven

33

12

7

19

11

20

5

14

16

16

17

14

13

7

Total

83

32

23

53

46

37

Initially (i.e., upon placement), 39% (n = 32) of segregated prisoners were voluntary cases whereas 61% (n = 51) were involuntary cases. Moreover, voluntary cases were all seeking protection, whereas the majority of involuntary cases (71%, n = 36) were legally placed in administrative segregation for jeopardizing the safety of other prisoners, staff, or the security of the institution. After 60 days the percentage of voluntary cases increased to 57% (n = 13) and the percentage of involuntary cases decreased to 43% (n = 10).
Demographics
Age. Using t-tests, segregated prisoners were found to be younger (M = 28.9) than non-segregated prisoners (M = 32.20, t (134) = 2.66, p < .01). The age of segregated and non-segregated prisoners ranged from 20 to 54 years old. Bivariate correlation analyses showed that Age was not significantly correlated with any measure (i.e., dependent variable).
Race. The Offender Intake Assessment (OIA) was used to provide background information on the prisoners. OIA information on race was available on 119 prisoners: 66% of prisoners were Caucasian, 25% black, 7% aboriginal, and 3% from other visible minority groups. Among segregated prisoners (n = 73), the percentage of Caucasians, blacks, aboriginal, and other visible minority groups was 64%, 27%, 7%, and 1% respectively.

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The effects of administrativesegregation
Education. OIA information was used to assess the educational background of prisoners. Using chi-square analyses, segregated and non-segregated offenders did not significantly differ in educational background.
Criminal history. OIA data also provided criminal history information for 131 prisoners. No significant difference between segregated and non-segregated prisoners on past and current offence history was found. Similar non-significant findings were obtained on history of disciplinary infractions (X2 (1, N = 84) = 1.93, p = 0.17), escape/UAL (X2 (1, N= 91) = 0.95, p = 0.33), and failure on conditional releases (X2 (1, N = 91) = 0.95, p = 0.39).
With respect to session one segregated prisoners (n = 83), nine were serving life sentences (11%). The average sentence length (excluding life sentences; n = 74) imposed by the courts for their index offence was 6.97 years.
Of the 53 session one non-segregated prisoners, 13 prisoners were serving life sentences (25%). The average sentence length (excluding life sentences; n = 40) imposed by the courts for their index offence was 5.98 years.
Case needs. Segregated and non-segregated prisoners did not significantly differ on any of the OIA need domains (Employment, Marital/Family, Associates, Substance Abuse, Community Functioning, Personal/Emotional, and Attitude).
SIR Scale. Using t-tests, segregated prisoners were found to be higher risk of recidivism (M = -8.26) than non-segregated prisoners (M = -1.07, t (110) = 4.70, p < .00 1).
I.Q. Estimates of I.Q. from the Shipley Institute of Living ScaleRevised (Shipley 1940) were compared for segregated and nonsegregated prisoners. Non-segregated prisoners (M = 97.25) possessed higher estimates of I.Q. than segregated prisoners (M = 89.70, t (131) = 2.93, p < .01).
Personality. Table 4 shows the differences between segregated and non-segregated prisoners on the "big five" personality constructs as assessed by the NEO Personality Inventory (NEOFFI; Costa and McCrae 1992). Segregated prisoners scored higher

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on Neuroticism (t (125) = 3.73, p < .001), and lower on Extraversion (t (129) = 2.26, p < .05), Openness (t (127) = 3.09, p <.01), Agreeableness (t(121) = 2.99, p< .01) and Conscientiousness (t (127) = 3.54, p < .001) than non-segregated prisoners.

Table 4 NEO-FFI sub-scores for segregated and non-segregated prisoners

Seg. (n=83)

Non-seg. (n=53)

t (dJ)

Factors (T-Scores)

M

M

Neuroticism***

54.9

48.4

3.73 (125)

Extraversion*

45.9

50.0

2.26 (129)

Openness**

49.0

53.5

3.09 (127)

Agreeableness**

41.6

47.4

2.99 (121)

Conscientiousness***

45.2

51.2

3.54 (127)

Note. *p <.05, ** p < .01, *** p < .001

Social desirability. A between/within-subject repeated measures univariate analysis was performed on the sample of 60 prisoners who completed all three sessions (segregated (n = 23) and non-segregated prisoners (n = 37)) using the Balanced Inventory of Desirable Responding (BIDR, short form; Paulhus 1984) as a dependent variable (DV). Non-segregated prisoners showed significant higher scores of impression management and self-deception than segregated prisoners (F(1, 58) = 11.36, p < .001, .2 = .16).

Segregated and non-segregated prisoners displayed

significantly increased scores on impression management and

self-deception across

time (F12,

116)

=

3.68,

p

<

.05,

2 _q

=

.06).

The ANOVA, however, revealed no significant Time (i.e., session

1, 2 & 3) by Group interaction.

Mental health and psychological functioning: Prisoners who completed three sessions

Between/within- subject repeated measures univariate analyses were performed on the sample of 60 prisoners who completed all three sessions (segregated (n = 23) and non-

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segregated prisoners (n = 37)) using the eight measures as dependent variables (DV's). Table 5 presents the means and respective standard deviations for each of the eight measures for
all three sessions.

Table 5
Session means of measures for segregated (n = 23) and non-segregated
(n =37) prisoners who completed all three sessions (S. 1, S.2, and S.3)

Means (SD)

DV
Aggression Questionnaire
Beck Depression
Brief Symptom Inventory
HPSI
Hopelessness Scale
State-trait Anxiety Inventory
WAIS Digit Span'
WAIS Digit Symbol'

Group
Seg. Non-seg.
Seg. Non-seg.
Seg. Non-seg.
Seg. Non-seg.
Seg. Non-seg.
Seg. Non-seg.
Seg. Non-seg.
Seg. Non-seg.

S.1
77.6 (14.2) 68.2 (14.2)
8.8 (7.3) 5.5 (5.6)
0.92 (0.18) 0.58 (0.46)
52.4 (15.6) 40.9 (12.1)
5.3 (4.6) 4.3 (4.3)
13.4 (4.4) 12.0 (3.4)
8.7 (2.9) 9.6 (2.5)
7.8 (2.4) 8.7 (2.3)

S.2
71.5 (17.7) 66.9 (18.6)
6.3 (6.0) 4.6 (5.8)
0.62 (0.39) 0.44 (0.42)
46.7 (11.6) 39.2 (10.5)
3.6 (3.6) 3.1 (4.4)
12.1 (4.0) 9.8 (3.5)
9.5 (2.8) 9.5 (2.6)
9.0 (3.1) 9.9 (3.0)

S.3
72.1 (21.2) 65.5 (20.0)
6.6 (5.5) 3.9 (5.0)
0.62 (0.44) 0.38 (0.40)
49.3 (11.2) 37.8 (12.6)
4.3 (4.3) 2.8 (4.3)
13.1 (4.5) 9.6 (3.3)
9.5 (3.1) 10.1 (2.3)
9.4 (3.3) 10.5 (2.9)

Note. 1 Indicates scaled scores.

Aggression Questionnaire (AQ). The Analysis of Variance (ANOVA) on the AQ (Buss and Perry 1992) revealed no significant main effect or interaction.
Beck Depression Inventory - Short Form (BDI). Both segregated and non-segregated prisoners reported significantly fewer depressive symptoms across time (F(2,1 16) = 8.3, p < .00 1,

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,q2 = .13) on the BDI (Beck and Beck 1972). The ANOVA revealed no significant interaction (Time by Group).

Brief Symptom Inventory (BSI). Segregated prisoners reported significantly more depressive symptoms than non-segregated prisoners (F(1,58) = 5.67, p < .05, 2 = .09) on the BSI (Derogatis 1992). In addition, both segregated and non-segregated prisoners reported significantly fewer depressive symptoms across time (F(2,116) = 19.57, p < .001, q2 = .25). The ANOVA revealed no significant interaction.

Holden Psychological Screening Inventory (HPSI). Segregated

prisoners reported significantly more problems in psychosocial

adjustment than non-segregated prisoners (F11,58) = 11.40, p <

.001,

2 _q

=

.16)

on the HPSI

(Holden, Mendonca,

Mazmanian,

and

Reddon 1992). As well, segregated and non-segregated prisoners

reported significantly fewer problems in psychosocial adjustment

across time (F(2,116) = 6.27, p < .01, -q2 = .10). The ANOVA

revealed no significant interaction.

Hopelessness Scale (HS). Segregated and non-segregated prisoners did not significantly differ on the HS (Beck and Steer 1988). Segregated and non-segregated prisoners indicated significantly less hopelessness across time (F2, 116) = 10.19, p < .001, _q2 = .15). The ANOVA revealed no significant interaction.

State-Trait Anxiety Inventory (STAI). Segregated prisoner

displayed significantly more state anxiety than non-segregated

prisoners

(F(1,58) =

8.09,

p

<

.01,

2 _q

=

.12)

on the

STAI

(Spielberger 1983). Further, segregated and non-segregated

prisoners displayed significantly less state anxiety across time

(1R2,116) = 7.63, p < .001, q2 = .11). The ANOVA revealed no

significant interaction.

WAIS Digit Span and Digit Symbol. Performance on the Digit Symbol improved significantly across time (M2,116)= 5.44, p < .01, 02 = .09). The ANOVA revealed no significant interaction. Performance on the Digit Symbol improved significantly across time (F(2,116) = 22.56, p < .001, _q2 = .28). The ANOVA revealed no significant interaction.

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The effects of administrativesegregation
Segregated prisoners who completed three sessions versus segregated prisoners who completed one or two sessions
It was hypothesized that prisoners who remain in segregation for longer periods of time would display more mental health and psychological functioning problems than those who are more quickly reintegrated into the general prisoner population. Therefore, using the eight measures as DV's, t-tests were performed to evaluate whether prisoners who stayed in segregation for all three sessions (n = 23) differed from segregated prisoners who were released or transferred after session one or two (n = 51). True attrition cases (n = 9) were removed from the analyses because they could have been part of the group of prisoners who stayed in segregation for all three sessions.
No significant difference was found between prisoners who stayed in segregation for all three sessions (n = 23) and segregated prisoners who were released or transferred after session one or two (n = 51).
Voluntary versus involuntary cases. Using the eight measures as DV's, t-tests were completed to evaluate whether voluntary (n = 32) and involuntary (n = 51) cases differed in mental health and psychological functioning. Again, no significant difference was found between voluntary and involuntary cases.
Interview assessment
Suicide ideation. Prisoners were asked questions on suicide ideation. Prisoners who completed all three sessions (n = 60) were asked if they ever thoughtof committing suicide. At session one, 40% (n = 9) of segregated and 33% (n = 12) of non-segregated prisoners responded "yes". When asked if they had ever attempted suicide, 22% (n = 5) of segregated and 29% (n = 11) of nonsegregated prisoners said "yes".
At each session, prisoners were asked if they had thought of committing suicide within the last week: 17% (n = 4) of segregated prisoners answered "yes" at session one, 4% (n = 1) at session two, and 4% (n = 1) at session three. As for non-segregated prisoners, 14% (n = 5), 11% (n = 4) and 3% (n = 1) answered "yes" respectively.

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Segregation experience. Prisoners who completed all three sessions (n = 60) were asked if they have ever been placed in segregation in the past. The vast majority of segregated (96%, n = 22) and non-segregated prisoners (87%, n = 32) reported having being in segregation before. When asked how many times they have been placed in segregation, segregated prisoners (M = 11.5) reported almost twice as many times than non-segregated prisoners (M = 6.3).
Discussion
Generalization issues
This study represents the most comprehensive empirical review of the psychological effects of administrative segregation in today's Canadian federal correctional context. To begin with, this study applied the rigour of an experimental longitudinal design to a "real" segregation environment. Participants were actual inmates and not volunteers who agreed to be segregated for a fixed period of time. As such, the sample included actual inmates (some with existing psychiatric conditions and others who feared for their personal safety) who were voluntarily or involuntarily placed for periods up to 60 days in administrative segregation pursuant to the current Canadian federal administrative segregation process. They were segregated under "real" conditions of confinement, which included partial isolation and sensory deprivation. In addition, the participants were confronted with all of the uncertainties surrounding their segregation, such as (a) when the segregation period would end, (b) whether they would be transferred to another institution or returned to the general inmate population, and (c) whether their stay in segregation would affect their security classification, chances for parole, or cell assignment. As well, some prisoners may have been confronted with correctional employees who may have had a punitive approach to managing segregated inmates. All these factors potentially affect the experience of segregation and were not considered by studies using students or inmates who voluntarily agreed to be segregated for a fixed period of time. This study, therefore, examined the psychological effects of today's administrative segregation in Canadian federal corrections, and its results cannot be construed as unrealistic extrapolations of scenarios which are too remote from the "real" experience.

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The effects of administrativesegregation
Surprisingly, although various forms of administrative segregation have been used for decades (if not centuries), there has been only one longitudinal study previously conducted using an approximation of the empirical approach used in this study. Weinberg (1967) assessed the effects of segregation on 20 inmates who were involuntary placed in administrative segregation. The study was, however, limited to a segregation period of only five days, and reported a 68% attrition rate among the experimental group. Again, no other longitudinal study has been completed using prisoners in a "real" segregation context.
The fact that the current longitudinal study was conducted with prisoners who were subjected to "real" segregation conditions of confinement clearly enhance its ability to be generalized. Other factors should also be considered when assessing the issue of generalization of findings. First, this study was conducted at several sites, thereby enhancing the degree of external validity.
Second, the penitentiaries selected have historically been perceived as some of the toughest in Canada. These institutions have some of the largest segregation units and heavily rely on administrative segregation to manage their inmate populations. It was therefore expected that segregated prisoners in those penitentiaries would be more likely to be affected by the harsher realities of some of Canada's toughest penitentiaries.
Third, the participation rate in this study was comparable to studies that employed inmates for subjects and which do not offer any incentive for participation (e.g., money). The true attrition rate among the segregated group was also relatively low (10.8%) for a longitudinal study. It is important to note that none of the attrition was attributable to prisoners being incapable of participating in the study because of episodes of delusion or hallucination or suicide attempts. Although always a concern, the rate and nature of the attrition in this study does not significantly undermine its ability to be generalized.
Fourth, this study relied on multiple assessments of mental health and psychological functioning of prisoners (i.e., externalizing/ aggression, internalizing/ interpersonal distress, psychiatric symtomatology, and cognitive ability). This approach provided a more comprehensive assessment of potential

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psychological effects of administrative segregation, and is consistent with preferred contemporary psychological and psychiatric assessment practices (DSM-IV 1994).
Finally, non-segregated prisoners scored significantly higher on a measure of impression management than segregated prisoners. Arguably, since segregated prisoners did not show significant signs of mental health and psychological deterioration and were more accurate in their responses than non-segregated prisoners, the results of this study are more convincing.
The above factors enhance the level of confidence in the results of this research. There are, however, clear limitations to this study which may reduce the generalizability of the findings. First, a large number of prisoners in both segregated (96%) and non-segregated (87%) groups had previously experienced segregation. Arguably, a previous stay in segregation may have already negatively affected the mental health and psychological functioning of the prisoners in the comparison group. General inmate population prisoners who have never been segregated before in the three selected penitentiaries are rare. Moreover, these prisoners may arguably possess special coping abilities and attributes and be atypical of the general inmate population, making them a poor choice for comparison purposes. Second, the findings are limited to 60 days in administrative segregation, and any extrapolation to lengthier stays would be inappropriate. It is important to note, however, that statistical data collected by the Correctional Service of Canada (Laplante 1998) indicate that during the period of June 1997 to May 1998, 93% of involuntary cases and 69% of voluntary cases were released prior to the 60 day regional review. This fact suggests that a majority of prisoners are segregated for periods of less than 60 days; therefore, the findings of this study are very relevant to the Canadian federal context.
Third, as stated above, the three penitentiaries selected in this study are among the toughest medium and maximumsecurity institutions in the country. These penitentiaries rely heavily on administrative segregation to control their inmate populations, which are composed of high-risk and high-need federally sentenced prisoners. The applicability of the results from this study should be limited to such inmate populations.

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The effects of administrativesegregation
Further, the findings of this study may be less applicable to other jurisdictions, such as the United States, in which segregated prisoners typically remain in administrative or disciplinary segregation for much longer periods of time, and often under harsher conditions of confinement (Coyle 1987; Dowker and Good 1993; Immarigeon 1992; Korn 1988). Finally, it would also be inappropriate to extend the findings of this study to aboriginal (Bertrand 1996) and women prisoners (Korn 1988; Martel 1999). The realities and experiences of women and aboriginal prisoners may affect their ability to adapt and cope with segregation.
Personality
It was expected that certain personality types would react to the segregation experience differently. Although no deterioration was found, differences in personality between segregated and non-segregated prisoners were found. These differences have been suggested in the PC and segregation literature, but have seldom been assessed using standardized measures, such as the NEO Personality Inventory (Gendreau et al. 1985; Hodgins and Cote 1991; Rold 1992).
The NEO was developed to operationalize the five-factor model of personality, a representation of the structure of traits developed over the last forty years (Digman 1990). Costa and McRae (1990) found that since 1985, research using the NEO has demonstrated that the five factors can account for the major dimensions in personality questionnaires designed to measure, inter alia, the DSM-III-R personality disorders. Segregated prisoners were found to score higher on Neuroticism (N) than non-segregated prisoners. Costa and McCrae (1992: 14) explained that "the general tendency to experience negative affects such as fear, sadness, embarrassment, anger, guilt, and disgust is the core of the N domain". They also suggest that neurotic individuals tend to cope more poorly with stress than others. Although segregated prisoners were found to score higher on Neuroticism and may, therefore, be ill equipped to cope with the stress associated with segregation, the findings of this study suggest that they nonetheless adapted and coped well with the segregation experience.
Segregated prisoners scored significantly lower on Extraversion (i.e., less sociable, likely to prefer large groups,

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assertive, active, and less talkative), Openness (i.e., less active imagination, sensitivity, attentiveness to inner feelings, intellectual curiosity, and independence of judgment), Agreeableness (i.e., less altruistic and sympathetic to others and eager to help them, and more egocentric, skeptical of others' intentions, and competitive rather than cooperative), and Conscientiousness (i.e., less strong-willed and determined) than non-segregated prisoners. Arguably, these trait patterns depict individuals which have personalities that may bring them at odds with non-segregated prisoners as well as correctional staff. The general inmate population may not tolerate prisoners with such personality patterns. Due to their lack of assertiveness, general tendency to experience negative affects, and overall poorer mental health and psychological functioning, segregated prisoners may be more easily victimized or less apt at adapting and coping with prison life.
Psychological effects
Overall, both segregated and non-segregated prisoners reported better mental health and psychological functioning over time. This finding is common in studies which rely on repeatedmeasures designs and has been primarily attributed to practice effects (Pedhazur 1982). Participants lose interest in answering repeatedly to identical questions and tend to report less problems overtime.
It was hypothesized that as a group, segregated prisoners overall would report greater mental health and psychological functioning problems than non-segregated prisoners. This hypothesis was supported by the fact that segregated prisoners indicated significantly more internalized problems, interpersonal distress and psychiatric symptoms than non-segregated prisoners. Segregated prisoners also displayed significantly more depressive symptoms, problems in psychosocial adjustment, and transient anxiety than non-segregated prisoners. These results are consistent with many cross-sectional and qualitative studies (Brodsky and Scogin 1988; Grassian 1983; Hodgins and Cote 1991; Wormith et al. 1988; Rold 1992). It is important to reaffirm that these between group differences may not be attributed to placement in administrative segregation.

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The effects of administrativesegregation
The most important questions raised in this study were whether the poor mental heath of segregated prisoners was attributable to segregation or whether segregated inmates already were of poorer mental heath prior to their segregation. The hypothesis that the mental health and psychological functioning of segregated inmates would deteriorate over a period of 60 days in segregation was not supported. The ANOVA's performed on each of the eight measures did not reveal any deterioration. These results can be interpreted in two ways: (a) segregated prisoners generally adapted and coped well with the conditions of today's Canadian federal administrative segregation; or (b) the segregated inmates did not perceive the conditions of their confinement as threatening or stressful and therefore were not affected by them.
On one hand, there is no shortage of researchers, ourselves included, who have observed or reacted strongly to the difficult conditions of confinement placed upon segregated prisoners (e.g., 23 out of 24 hours of cell confinement, small yard size, lack of programs and services, constant state of idleness, etc.). On the other hand, other researchers have commented on all the distractions, programs, and services that are available in segregation units in Canadian penitentiaries (e.g., TV, radios, books, computers, exercise period often with the company of other prisoners; Suedfeld et al. 1982). Moreover, the Task Force Reviewing Administrative Segregation (Kane 1997) was confronted with many correctional staff who thought segregation units were "too comfortable" for prisoners. They often suggested, contrary to current legal and policy provisions, that the conditions of confinement should be made more harsh in order to discourage prisoners from requesting segregation and to provide an "incentive" for segregated inmates to reintegrate into the general inmate population.
Another explanation to account for these results could be that the environment that prisoners were in before segregation was such that it was viewed more negatively than the conditions of confinement in segregation. If that is the case, it suggests that the correctional authorities must take further steps to ensure that the general inmate population is safe and secure.
Nonetheless, regardless of the possible explanations to account for the lack of deterioration, this study is somewhat

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encouraging because it provides evidence that segregation for 60 days as currently administered in Canadian penitentiaries does not negatively affect prisoners' mental health and psychological functioning.
Policy issues
It was anticipated that this research would have important policy implications in areas such as: (a) the level and frequency of monitoring and assessment required for inmates in segregation (mandatory vs. upon request); (b) programming to reduce mental health deterioration (the need for, and type of, intervention programs); and (c) the adequacy of current assessment strategies (whataspects of psychosocial functioning are important to assess, and which are less affected by segregation). Since detrimental effects were not found, the policy implications are somewhat less significant than anticipated.
First, with regard to monitoring and assessment of Canadian federally sentenced segregated prisoners, psychologists are required by policy to assess segregated prisoners every 30 days, and health care workers and wardens are required by law to make daily visits to segregation units. Although this study revealed no evidence of detrimental effects, the 30-day requirement should be preserved, as well as the daily visits by health care workers and wardens. Arguably, reducing the few contacts segregated prisoners currently enjoy could have negative consequences. It could be that regular contact itself is an important factor reducing the likelihood of deterioration. Moreover, this research only suggests that the possibility of negative effects is likely to be an exception rather than the norm. Since the findings of this study do not preclude in any way the possibility that some prisoners may in fact be negatively affected by segregation, close monitoring should continue.
Due to their overall poorer mental health and psychological functioning, it may be appropriate as a "best practice" for psychologists to meet with all prisoners upon their placement in segregation. This could serve to establish a baseline for subsequent evaluations of mental health and psychological deterioration and to provide support for segregated inmates at times of crisis. In addition, since segregated prisoners were found

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to have poorer mental health and psychological functioning, employees working with segregated prisoners may benefit from special training on mental health issues.
Second, it was expected that this research would provide specific areas of mental health and psychological functioning which needed particular attention when conducting assessment and monitoring of segregated prisoners. But again, since this study did not detect detrimental effects, little can be said in the way of policy on what aspects of mental health and psychological functioning should be carefully scrutinized. Some general comments can be made regarding psychological assessments, however.
Currently, psychologists utilize a standard form which highlights general mental health issues (e.g., risk of suicide or self-injury, depression, anxiety, aggression, psychosis, mania) when completing their 30-day assessments. How to assess each component is left to the psychologist's discretion. Typically, psychologists conduct a brief semi-structured interview with the segregated prisoner. It may be appropriate as a "best practice" to conduct more elaborate assessment procedures to ensure that minor or perhaps less obvious deterioration can be detected and documented.
Finally, the findings of this study have programming implications for segregated prisoners. Since segregated prisoners were found to be higher risk cases than non-segregated prisoners, programs delivered to segregated prisoners should be intensive to maximize success (Andrews, Zinger, Hoge, Bonta, Gendreau, and Cullen 1990). Although the primary concern with providing programs to segregated prisoners is to facilitate their reintegration into the general inmate population, if such reintegration cannot occur quickly, intensive treatment programs that target variables that are known to be linked to criminal conduct should be introduced (Andrews and Bonta 1994). The distinct personality patterns of segregated prisoners may be important to consider and assess when delivering treatment programs to them (Andrews et al. 1990).
It is obvious that research evaluating the effects of segregation beyond 60 days is needed. Once again, it would be ill advised to

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,January2001

attempt to extrapolate the findings of this study (a) beyond 60 days of administrative segregation, and (2) to other jurisdictions. For example, the findings of this study are somewhat irrelevant to current segregation practices in the United States where prisoners can sometimes be segregated for years for disciplinary infractions with virtually no distractions, human contacts, services, or programs.
The difference between the personality of segregated and nonsegregated prisoners is an important finding. Although many have suggested that segregated prisoners' psychological weaknesses and idiosyncratic behaviours were not well tolerated by the general inmate population (Carriere 1989; Gendreau et al. 1985; Rold 1992; Wormith et al. 1988), the personality of segregated prisoners had seldom been assessed. Whether a distinct personality profile may increase a prisoner's risk of being placed in administrative segregation should be further examined using more comprehensive measures of personality.
Although this research revealed no evidence that administrative segregation for periods of up to 60 days was damaging, the findings of this study should not be used to legitimize the practice of administrative segregation. Administrative segregation remains a management tool which is grossly overused in Canadian penitentiaries. Regardless of whether prisoners adapt and cope well with the segregation experience, it is not healthy for anyone to idle aimlessly in a cell for 23 out of 24 hours a day; it simply is not a constructive way of serving a sentence: and, it is likely to impede attempts to rehabilitate and safely reintegrate prisoners into society.
Although it will always remain a legitimate management tool to deal effectively with problematic situations and individuals, its current use is perhaps symptomatic of correctional authorities' inability to reduce tensions and resolve conflicts in the prison context. Administrative segregation has clearly become the number one way of managing inmates and "doing business". For example, the Correctional Service of Canada (1999) reported that during fiscal year 1998/99, out of an inmate population that averaged 13,131 federally sentenced prisoners, 7,942 placements in administrative segregation took place. Such high reliance on the use of segregation needs to be carefully examined. Moreover,

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the costs associated with processing these prisoners in accordance with due process requirement are extraordinary (i.e., paperwork, enhanced security and staffing, and reviews by wardens, Segregation Review Boards and Regional Headquarters, etc.). Clearly, it is time to rethink conflict resolution in Canada's penitentiaries.
Implementing alternative/appropriate dispute resolution processes on a large scale is the most promising initiative to reduce the disproportionate number of segregation cells and units in Canada's federal correctional system. Providing the tools to resolve conflicts and fostering a correctional environment respectful of human rights is the only way to break down this over-reliance on administrative segregation for managing prisoners.
References
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Holden, R. R., J.D. Mendonca, D. Mazmanian, and J.R. Reddon 1992 Clinical construct validity of the Holden Psychological Screening Inventory (HPSI). Journal of Clinical Psychology 48: 627-633.
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 List of Exhibits Ex. 21-Walters Ex. 22-Ecclestone Ex. 23-Cloyes Ex. 24-Bonta and Gendreau Ex. 25-Heigel

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EXHIBIT 21 Walters et al, "Effect of Solitary Confinemnt on Prisoners"

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EXHIBIT 22 Ecclestone et al, "Solitary Confinement of
Prisoners"

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EXHIBIT 23 Cloyes et al., "Assessment of Psychosocial Impairment in a Supermaximum Security Unit Sample"

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EXHIBIT 24 James Bonta & Paul
Gendreau, "Reexamining the Cruel and Unusual Punishment of
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EXHIBIT 25 Heigel et al., "Self-Reported Physical Health of Inmates"

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VERMILLION 003578

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VERMILLION 003579

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VERMILLION 003580

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VERMILLION 003581

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VERMILLION 003582

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VERMILLION 003583

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VERMILLION 003584

 
 Case 1:15-cv-00605-RLY-TAB Document 8 Filed 10/21/11 Page 1 of 3 PageID #: 59

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

JAY F. VERMILLION,

)

)

Plaintiff,

)

)

v.

)

)

WILLARD PLANK, CHARLES

)

WHELAN, DAWN BUSS, RALPH

)

CARRASCO, D. WALKER, BESSIE

)

LEONARD, MARK LEVENHAGEN,

)

MARK BRENNAN, SALLY

)

NOWATKZKE, LARRY WARG,

)

CHARLES PENFOLD, BRETT MIZE,

)

JANE DOE, HOWARD MORTON, CRAIG )

TRAVIS, ERNESTINE COLE, CELIA

)

BOBSON, JOHN DOE I, JOHN DOE II, )

JOHN DOE III, LINDA LEONARD,

)

DEBRA DAUGHERTY, DAVID

)

DOMBROWSKY, DOUG BARNES,

)

ROBERT JOHNSON, DAVID LEONARD, )

STEPHANIE ROTHENBERG, and the

)

INDIANA DEPARTMENT OF

)

CORRECTIONS,

)

)

Defendants.

)

Case No. 3:11-CV-280 JVB

OPINION AND ORDER

Plaintiff Jay Vermillion, a prisoner confined at the Westville Control Unit (“WCU”), filed the

Complaint in this case under Title 42, United States Code, Section 1983, bringing a variety of claims

and alleging that Indiana Department of Correction (“IDOC”) officials violated his federally protected

rights. He names as Defendants the IDOC and twenty-seven individual IDOC officials.

Under Section 1915A of Title 28 of the United States Code, the Court must review the merits

of a prisoner complaint against governmental entities or officials and dismiss it if the action is

frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief against a defendant who is immune from such relief. Guided by Federal Rule of Civil Procedure

Case 1:15-cv-00605-RLY-TAB Document 8 Filed 10/21/11 Page 2 of 3 PageID #: 60
18(a), a district court must “question” and “reject” any complaint that contains unrelated claims against separate defendants. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Like free persons, prisoners cannot file unrelated claims against different defendants in the same suit. Id. Prisoners in particular may try to do so as a strategy to avoid filing fees they owe under the Prison Litigation Reform Act after three frivolous suits or appeals. See id. (highlighting the problem).
In Owens v. Hinsley, the Seventh Circuit reemphasized “that unrelated claims against different defendants belong in separate lawsuits, not only to prevent the sort of morass produced by multi-claim, multi-defendants suits like this one, but also to ensure that prisoners pay all fees required under the Prison Litigation Reform Act.” Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011) (internal quotation marks omitted). The court explained such complaints “should be rejected, George, 507 F.3d at 607, either by severing the action into separate lawsuits or by dismissing improperly joined defendants.” Id.
The Complaint here is similar to the one in George in that Plaintiff is attempting to bring a single lawsuit on unrelated claims against separate defendants involving events that occurred at two separate IDOC facilities. These include claims arising from an investigation and subsequent disciplinary proceeding against Plaintiff at the Westville Correctional Facility (“WCF”) (DE 1 paras. 1-28, 55, 59-63, 67, 99-110, 116, 118-20, 131); his “improper” transfer from the WCF to the WCU, which is a “supermax” facility (DE 1 paras. 29-33); the physical conditions of confinement he was subjected to, in violation of the Eighth Amendment, at the WCU (DE 1 paras. 33-51); the interception or destruction of his mail in violation of the First Amendment (DE 1 paras. 52-53); the denial of his application to participate in the A.C.T program (DE 1 paras. 56-58, 80-82); the confiscation and subsequent loss of his personal property (DE 1 paras. 68-70, 75-77, 83-86); the refusal of his request
2

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for a return to general population from administrative segregation (DE 1 paras. 66, 71-74, 79-80); the confiscation of his television (DE 1 paras. 87-89, 93); the “ransacking” of his cell and destruction of personal belongings on January 30, 2010 (DE 1 paras. 52-3, 90-91); and the impeding and hindering of his efforts to prosecute a habeas corpus petition challenging the loss of earned credit time (DE 1 at 27-28 para. 11).
As instructed by George and Owens, this Court will dismiss Plaintiff’s multi-claim Complaint with leave to file a separate complaint or complaints incorporating only related claims. Any subsequent complaint should show the relationship between multiple claims if it contains more than one. Plaintiff may bring only properly related claims in his amended complaint in this case. Unrelated claims must be brought in separate cases.
For the foregoing reasons, the Court: (1) STRIKES the Complaint (DE 1); (2) DIRECTS the clerk to send Plaintiff, along with his copy of this order, a blank Prisoner Complaint 42 U.S.C. § 1983 form with this cause number printed on it, summonses, and USM-285 forms; (3) GRANTS Plaintiff until December 9, 2011, to file an amended complaint containing only a single claim or related claims, and providing the materials necessary to serve the Defendants; and (4) CAUTIONS him that if he does not respond by that deadline, this case will be closed without further notice. SO ORDERED on October 21, 2011.
s/ Joseph S. Van Bokkelen Joseph S. Van Bokkelen United States District Judge
3

 
 Case 1:15-cv-00605-RLY-TAB Document 13 Filed 02/02/12 Page 1 of 3 PageID #: 85

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

JAY F. VERMILLION,

Plaintiff,

v.

Case No. 3:11-CV-280 JVB

WILLARD PLANK, et al.,

Defendants.

OPINION AND ORDER Pursuant to 28 U.S.C. § 1915A, the Court screens this prisoner plaintiff’s Amended Complaint and will strike it, with leave to amend, because the claims it asserts against various defendants are insufficiently related to each other. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (explaining the need and proper approach for § 1915A screening of prisoner complaints that contain unrelated claims). Plaintiff is confined at the Westville Control Unit (“WCU”) and proceeding pro se. His first complaint, which, like the Amended Complaint, arose under 42 U.S.C. § 1983, asserted a variety of claims that Indiana Department of Correction (“IDOC”) officials violated his federally protected rights in myriad respects. The Court screened and struck that complaint, as well, but left Plaintiff time “within which to file an amended complaint containing only a single claim or related claims, and providing the materials necessary to serve the defendants.” (DE 8 at 3.) In response, Plaintiff filed the Amended Complaint naming as Defendants the IDOC and twentytwo individual IDOC officials, some of whom are employed at the WCU and some of whom are employed at the Indiana State Prison (“ISP”). So we are now back for the next round of obligatory screening by the Court. Under

Case 1:15-cv-00605-RLY-TAB Document 13 Filed 02/02/12 Page 2 of 3 PageID #: 86
§ 1915A, the Court must review the merits of a prisoner complaint against governmental entities or officials and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. A district court must question and “reject” any complaint that contains unrelated claims against separate defendants. George, 507 F.3d at 607.
As noted in this Court’s previous screening order (DE 8 at 2), the Seventh Circuit has criticized a district court for disregarding the George case, and reemphasized “that unrelated claims against different defendants belong in separate lawsuits, not only to prevent the sort of morass produced by multi-claim, multi-defendants suits like this one, but also to ensure that prisoners pay all fees required under the Prison Litigation Reform Act.” Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011) (internal quotation marks omitted). The court explained such complaints “should be rejected, George, 507 F.3d at 607, either by severing the action into separate lawsuits or by dismissing improperly joined defendants.” Owens, 635 F.3d at 952.
Plaintiff’s Amended Complaint, like the first complaint, is similar to the one rejected in George in that it seeks to make a single case from unrelated claims involving events that occurred at two separate IDOC facilities. Most of Plaintiff’s claims arose at the ISP, but he also alleges that his transfer from the ISP to the WCU, which is a “supermax” facility, violated his due-process rights (DE 11 para. 7) and that the physical conditions of confinement he has been subjected to at the WCU violate the Eighth Amendment’s prohibition against cruel and unusual punishments (id. para. 9).
The Amended Complaint drops several of the claims presented in his original complaint, but still asserts ones involving events that occurred at two different facilities, the ISP and the
2

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WCU, and still names officials at both facilities as defendants. As instructed by George and Owens, this Court will therefore strike Plaintiff’s multi-claim Amended Complaint with leave to the Plaintiff to file a separate complaint or complaints incorporating only related claims. He may bring only properly related claims in his next amended complaint in this case. Unrelated claims must be brought in separate cases. For example, if Plaintiff brings his claims related to the WCU in this case, he would bring the claim that ISP officials violated his rights in another complaint.
For the foregoing reasons, the Court: (1) STRIKES the amended complaint (DE 11); (2) DIRECTS the clerk to send Plaintiff, along with his copy of this Order, a blank Prisoner Complaint 42 U.S.C. § 1983 form with this cause number already printed on it, summonses, and USM-285 forms; (3) GRANTS Plaintiff up to and including March 8, 2012, within which to file an amended complaint containing only a single claim or related claims arising at the same facility, and providing the materials necessary to serve the defendants; and (4) CAUTIONS Plaintiff that if he does not respond by that deadline, this case may closed without further notice. SO ORDERED on February 2, 2012.
s/ Joseph S. Van Bokkelen JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
3

 
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 Case 1:15-cv-00605-RLY-TAB Document 96 Filed 05/08/15 Page 1 of 44 PageID #: 473
FILED
5:13 pm, May 07, 2015 U.S. DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Laura A. Briggs, Clerk

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 Case 1:15-cv-00605-RLY-TAB Document 97 Filed 05/22/15 Page 1 of 5 PageID #: 517

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAY F. VERMILLION,

)

)

Plaintiff,

)

)

vs.

)

)

MARK E. LEVENHAGEN Superintendent, )

SALLY NOWATZKE Case Counselor WCU, )

BRETT MIZE Director of Op IDOC,

)

HOWARD MORTON Admin Asst ISP,

)

GARY BRENNAN Director of Op WCU,

)

)

Defendants.

)

Case No. 1:15-cv-00605-RLY-DKL

Entry Discussing Third Amended Complaint and Directing Further Proceedings The third amended complaint is subject to the screening requirement of 28 U.S.C.
§ 1915A(b). Pursuant to this statute, “[a] complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show that plaintiff is not entitled to relief.” Jones v. Bock, 549 U.S. 199, 215 (2007). In determining whether the complaint states a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal under federal pleading standards,
[the] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a “plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has

Case 1:15-cv-00605-RLY-TAB Document 97 Filed 05/22/15 Page 2 of 5 PageID #: 518
happened to [him] that might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).
The third amended complaint names defendants Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, Gary Brennan and the Indiana Department of Correction as defendants. The clerk is directed to add Willard Plank, Dawn Buss, Charles Whelan, and Ralph Carrasco as defendants on the docket. The other defendants have already appeared by counsel in this action.1
I. Claims Which Shall Proceed The following claims shall proceed as submitted: 1. Vermillion claims that Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, and Gary Brennan retaliated against him for refusing to answer questions about escaped prisoners. Specifically, Mr. Vermillion claims that his placement in punitive segregation at Indiana State Prison (“ISP”), his transfer to the Maximum Control Segregation Unit at Westville Correctional Facility, and his confinement in segregation were punishments aimed at retaliating against him because he asserted his right to silence. 2. Vermillion claims that Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, Mark Levenhagen, Brett Mize, Howard Morton, Sally Nowatzke, and Gary Brennan violated his Eighth Amendment right to be free of cruel and unusual punishment by placing him
1 The plaintiff’s motion to amend the title of this case is granted to the extent that Willard Plank will be added as a defendant on the docket. The motion is denied to the extent that the plaintiff requests that this action always be referred to as Jay F. Vermillion v. Willard Plank, et al. The reason for this ruling is that when this case was transferred Mark E. Levenhagen was listed as the first named defendant. The plaintiff’s suggestion that Willard Plank’s name should be first listed because he is the “ringleader” is not persuasive. The order in which the defendants are listed in the caption does not reflect culpability or level or responsibility.

Case 1:15-cv-00605-RLY-TAB Document 97 Filed 05/22/15 Page 3 of 5 PageID #: 519
at the Westville Control Unit Super Max Facility and leaving him in solitary confinement for 1,513 days.
3. Vermillion claims that Willard Plank, Dawn Buss, Charles Whelan, Ralph Carrasco, Mark Levenhagen, and Brett Mize transferred him from the Indiana State Prison (“ISP”) to department-wide administrative segregation at the Westville Correctional Facility (“Westville”) in violation of his due process rights.
4. Vermillion claims that Howard Morton confiscated Vermillion’s certified legal correspondence in violation of his due process and First Amendment rights.
II. Dismissal of Certain Claims The following claims shall be dismissed. 1. The plaintiff lists as a separate claim that these same defendants conspired to retaliate against him. This claim, however, adds nothing and is dismissed because all of the defendants “are state actors, and thus amenable to suit under 42 U.S.C. § 1983, by virtue of their offices.” Logan v. Wilkins, 644 F.3d 577, 583 (7th Cir. 2011) (citing Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003). The Seventh Circuit has explained: We need not conduct a separate analysis of the conspiracy claim outside of our treatment of Turley’s Eighth Amendment claims. As we noted in Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009), the function of a conspiracy claim under 42 U.S.C. § 1985(3) is to “permit recovery from a private actor who has conspired with state actors.” When, as here, the defendants are all state actors, “a § 1985(3) claim does not add anything except needless complexity.” Id. Turley v. Rednour, 2013 WL 3336713, 7 at fn. 2 (7th Cir. 2013). 2. Vermillion’s claim that Sally Nowatzke, and Gary Brennan falsified information and documentation to increase Vermillion’s security classification designation in violation of his due process rights is dismissed. The reason for this ruling is that Vermillion’s classification does not in and of itself implicate either a liberty or property interest. See Lucien v. DeTella, 141 F.3d

Case 1:15-cv-00605-RLY-TAB Document 97 Filed 05/22/15 Page 4 of 5 PageID #: 520
773, 774 (7th Cir. 1998) (“Classifications of inmates implicate neither liberty nor property interests. . . .”) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). As a practical matter, the claims that Nowatzke and Brennan retaliated against Vermillion and subjected him to unconstitutional conditions of confinement based on their actions (including their alleged falsification of information) are proceeding such that nothing could be gained by including this due process claim against them.
3. The Indiana Department of Corrections has been sued under the Indiana Tort Claims Act. These state law claims are dismissed for lack of jurisdiction for the following reasons. First, there are no federal claims alleged against the IDOC which could be the basis for this court’s supplemental jurisdiction. Second, Eleventh Amendment immunity bars suits in federal court against states and their agencies regardless of the relief sought, whether damages or injunctive relief. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 102 (1984).
III. Further Proceedings The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue and serve process on the defendants Willard Plank, Dawn Buss, Charles Whelan, and Ralph Carrasco in the manner specified by Fed. R. Civ. P. 4(d)(1). Process shall consist of the third amended complaint, applicable forms and this Entry. Counsel for defendants who have appeared in this action shall have through June 17, 2015, in which to answer or otherwise respond to the third amended complaint. IT IS SO ORDERED.
Date: ___5_/_20_25_//2_1_09_1/2_50_1_5_____

Case 1:15-cv-00605-RLY-TAB Document 97 Filed 05/22/15 Page 5 of 5 PageID #: 521
Distribution:
Willard Plank Indiana Department of Correction E-334, 302 West Washington Street Indianapolis, IN 46204
Dawn Buss Indiana Department of Correction E-334, 302 West Washington Street Indianapolis, IN 46204
Charles Whelan ISP IA Investigator 5501 S. 1100 W. Westville, IN 46391
Ralph Carrasco ISP IA Investigator One Park Row Michigan City, IN 46360
JAY F. VERMILLION DOC # 973683 Pendleton Correctional Facility Electronic Service Participant -- Court Only
All Electronically Registered Counsel

 
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