Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 1 of 36

IN THE UNI~ED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

)

)

PLAINTIFF,

)

)

v.

)

)

ERIE COUNTY, NEW YORK;

)

CHRIS COLLINS, COUNTY EXECUTIVE; ) Civil No.

ANTHONY BILLITTIER, IV, MD, COUNTY )

HEALTH COMMISSIONER;

)

TIMOTHY B. HOWARD, ERIE COUNTY

)

SHERIFF; RICHARD T. DONOVAN,

)

ERIE COUNTY UNDERSHERIFF;

)

ROBERT KOCH, SDPERINTENDENT,

)

ADMINISTRATIVE SERVICES DIVISION, )

JAIL MANAGEMENT DIVISION;

)

BARBARA LEARY, FIRST DEPUTY

)

SUPERINTENDENT FOR ERIE COUNTY

)

HOLDING CENTER; DONALD LIVINGSTON, )

FIRST DEPUTY SUPERINTENDENT FOR )

ERIE COUNTY CORRECTIONAL FACILITY, )

)

DEFENDANTS.

)

COMPLAINT PLAINTIFF, THE UNITED STATES OF AMERICA ("Plaintiff"), by its undersigned attorneys, hereby alleges upon information and belief: 1. The Attorney General files this Complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. § 1997,

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-2to enjoin the named Defendants from depriving persons incarcerated at the Erie County Holding Center ("ECHC") in Buffalo, New York, and the Erie County Correctional Facility ("ECCF") in Alden, New York, of rights, privileges, or immunities secured and protected by the Constitution of the United States.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action 'under 28 U.S.C. § 1345. 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint as Attachment A and is incorporated herein. 5. Venue in the United States District Court for the Western District of New York is proper pursuant to 28 U.S.C. § 1391.
DEFENDANTS 6. Defendant ERIE COUNTY (the "County") is a governmental subdivision created under the laws of the State of New York. The Erie County Sheriff's Office is a division

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 3 of 36
- 3of the Erie County government. The County owns and operates ECHC and ECCF. This action concerns the administration of persons confined at ECHC and ECCF, which house pre-and post-trial detainees.
7. Defendant ERIE COUNTY is the entity charged by the laws of the State of New York with authority to maintain ECHC and ECCF and is responsible for the conditions of confinement and health and safety of persons incarcerated at ECHC and ECCF.
8. Defendant CHRIS COLLINS is the County Executive and serves as the chief administrator of the County government. County Executive COLLINS is sued in his official capacity.
9. Defendant ANTHONY BILLITTIER, IV, MD, is the County Health Commissioner and is responsible for the daily oversight of health care employees at ECHC and ECCF. County Health Commissioner BI1LITTIER is sued in his official capacity.
10. Defendant TIMOTHY B. HOWARD is the Sheriff of Erie County and is responsible for the day-to-day operations of ECHC and ECCF. In his official capacity as Sheriff, he has . the custody, control, and charge of ECHC and ECCF and the inmates confined within. Sheriff HOWARD is sued in his official capacity.

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11. Defendant RICHARD T. DONOVAN is the Undersheriff of Erie County and is responsible for the day-to-day operations of ECHC and ECCF. In his official capacity as Undersheriff, he has the custody, control, and charge of ECHC and ECCF and the inmates confined within. Undersheriff DONOVAN is sued in his official capacity.
12. Defendant ROBERT KOCH is the Superintendent of ECHC and ECCF and is responsible for the Administration, Security, and Programs of both facilities. In his official capacity as Superintendent, he has the custody, control, and charge of ECHC and ECCF and the inmates confined within. Superinten?ent KOCH is sued in his official capacity.
13. Defendant BARBARA LEARY is the First Deputy Superintendent of the Jail Management Division of Erie County and is responsible for the day-to-day operations of ECHC. In her official capacity as First Deputy Superintendent, she has the custody, control, and charge of ECHC and the ECHC overflow annex located at ECCF and the inmates confined within. First Deputy Superintendent LEARY is sued in her official capacity.
14. Defendant DONALD LIVINGSTON is the First Deputy Superintendent of the Jail Management Division of Erie County and is responsible for the day-to-day operations of ECCF. In his official capacity as First Deputy

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 5 of 36
- 5Superintendent, he has the custody, control, and charge of ECCF and the inmates confined within. First Deputy Superintendent LIVINGSTON is sued in his official capacity.
15. Defendants are legally responsible, in whole or in part, for the-operation and conditions of ECHC and ECCF, and for the health and safety of persons incarcerated in ECHC and ECCF.
16. At all relevant times, the Defendants or their predecessors in office have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 17. ECHC and ECCF are institutions within the meaning of 42 U.S.C. § 1997(1). 18. Persons confined to ECHC are pre-trial detainees. 19. Persons confined to ECCF are sentenced inmates, with the exception of pre-trial detainees who are held in the ECHC overflow annex located at ECCF. 20. Defendants have repeatedly and consistently disregarded known or serious risks of harm to inmates at ECHC and ECCF, as detailed in the letter issued by Acting Assistant Attorney General Loretta King on July IS, 2009, detailing the investigative findings of conditions at ECHC and EeCF ("Findings Letter"). The Findings Letter is

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 6 of 36
- 6appended to this Complaint as Attachment B and is incorporated by reference herein.
21. Defendants have repeatedly failed to take reasonable measures to prevent staff from inflicting serious harm on inmates, even in the face of the obvious and substantial risk that staff will inflict such harm and the mUltiple occasions in which ECHC and ECCF staff in fact have inflicted such harm. These failures have manifested themselves in the following respects, among others outlined in the Findings Letter:
a. inadequate protection from staff abuse, including failing to adequately investigate allegations of excessive use of force, notwithstanding multiple occasions on which staff have used excessive force on inmates; and
b. inadequate protection from harm and serious risk of harm caused by sexually abusive behavior between staff and inmates at ECHC and ECCF.
These failures continue. 22. Defendants have repeatedly failed to take
reasonable measures to protect inmates against the serious harm inflicted on them by other inmates, even in the face of

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- 7the obvious and substantial risk that inmates will inflict such harm and the multiple occasions in which ECHC and ECCF inmates have in fact inflicted such harm. These failures have manifested themselves in the following respects{ among others outlined in the Findings Letter:
a. inadequate protection from inmate-on-inmate abuse { including failing to protect vulnerable inmates from harm{ such as those who are at risk of harm from other inmates;
b. inadequate protection from harm and serious risk of harm caused by a failure to protect inmates vulnerable to sexual abuse by other inmates at ECHC and ECCF; and
c. failure to implement an inmate classification system that adequately assesses the risk factors for inmate-on-inmate violence.
These failures continue. 23. Defendants have { in the following specific
respects{ among others outlined in the Findings Letter{ repeatedly failed to provide adequate mental health and medical treatment and services to inmates with serious mental health and medical needs that are known or obvious:
a. inadequate suicide prevention (including the placement of suicidal inmates in cells that

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 8 of 36
- 8contain multiple means for committing suicide) and inadequate mental health care result'ing in multiple suicides and attempted suicides between 2007 and 2008, as well as multiple episodes of suicidal ideation 'and self-injurious behavior; b. inadequate management of medical services and treatment; c. inadequate administration of medication, including controlled substances, resulting from nursing staff being untrained in critical areas of security, accountability, and common side effects of medications; and d. inadequate infection control, including failing to test timely for Tuberculosis and/or supervise at ECHC and failing to adequately treat, contain, and manage infe~tious diseases such as Methicillinresistant Staphylococcus aureus. These failures continue. 24. Defendants have pervasively maintained a physical environment at ECHC that poses an unreasonable risk of serious harm to inmates' health and safety by failing to correct facility maintenance problems that pose a risk of

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 9 of 36
- 9harm to the safety of inmates and staff within the facility and its exterior, including those deficiencies outlined in the Findings Letter. Defendants have continued to maintain such an environment notwithstanding these known or obvious risks.
25. The factual allegations set forth in paragraphs 17 through 24 and outlined in the Findings Letter have been obvious and known to Defendants for a substantial period of time, yet Defendants have failed to adequately address the conditions described.
26. The factual allegations set forth in paragraphs 17 through 24 and outlined in the Findings Letter are supported by the findings made by several other entities tasked with reviewing ECHC and ECCF, including the New York State Commission of Correction and.the National Commission on Correctional Health Care.
VIOLATIONS ALLEGED 27. The United States incorporates by reference the allegations set forth in paragraphs 1 through 26 as fully set forth herein. 28. Through the acts and omissions alleged in paragraphs 17 through 24 and outlined in the Findings Letter, Defendants have exhibited deliberate indifference to

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 10 of 36
- 10 the health and safety of ECHC and ECCF inmates r in violation of the rights r privileges r or immunities of those inmates as secured or protected by the Constitution of the United States. U.S. Const. amend. Vlllr XIV.
29. Unless restrained by this Court r Defendants will continue to engage in the acts and omissions set forth in paragraphs 17 through 24 and outlined in the Findings Letter that deprive persons confined in ECHC and ECCF privileges or immunities secured or protected by the Constitution of the United States.
PRAYER FOR RELIEF 30. The Attorney General is authorized under 42 U.S.C. § 1997 to seek equitable and declaratory relief. WHEREFORE r the United States prays that this Court enter an order:
a. declaring that the acts r omissions r and practices o~ Defendants set forth in paragraphs 17 through 24 above and outlined .in the Findings Letter deprive inmates confined at ECHC and ECCF of rights r privileges r or immunities secured or protected by the Constitution of the United States;
b. permanently enjoining Defendants r their officers r agents r employees r subordinates r successors in

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- 11 office, and all those acting in concert or participation with them from continuing .the acts, omissions, and practices set forth in paragraphs 17 through 24 above and outlined in the Findings Letter and requiring Defendants to take such actions as will ensure lawful conditions of confinement are afforded to inmates at ECHC and ECCF; and
c. granting such other and further equitable relief as it may deem just and proper.
Respectfully submitted,
S/Eric H. Holder, Jr. IC H. HOLDER, R.
Attorney General of the United States

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 12 of 36

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S/Kath1een M. Meh1tretter
KdTHLEEN M. MEHLTRETTER United States Attorney Western District of New York 138 Delaware Avenue Buffalo, New York 14202

S/Loretta King
LORETTA KING \ \ Acting Assista~ Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Deputy Assistant Attorney General Civil Rights Division
/

S/Shanetta Y. Cutlar ~ETTA Y. CUTLAR /Chief Special Litigation Section

S/Danie1 H. Weiss
n....c
DANIEL H. WEISS Deputy Chief
.------ Special Litigation Section -
S/Zazy 1. Lopez
C~Le~dEi) "
ALYSSA C. LAREAU CHARLES W. HART Attorneys Civil Rights Division Special Litigation Section U.S. Department of Justice 950 Pennsylvania Avenue, NW SPL, 601 D Street, Rm. 5426 Washington, DC 20530 (202)305-8702

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 13 of 36
EXHIBIT A

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 14 of 36
Q))ffire of f~f 1\ttl1ruft! ~fnfral
lllfa:gqittgfutt. E. QT. 20,5'0

CERTIFICATE OF THE ATTORNEY GENERAL

I, Eric H. Holder, Jr., Attorney General of the United States, certify that with regard to the. foregoing Complaint, United States v. Erie County, I have complied with all subsections of 42 U.S.C. § 1997b(a) (1). I certify as well that I have complied with all subsections of 42 U. S. C. § 1997b (a) (2) . I further certify, pursuant to 42 U.S.C. § 1997b(a) (3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution of the United States.

In addition, I certify that I have the "reasonable cause to believe," set forth in 42 U.S.C. § 1997a, to initiate this action. Finally, I certify that all prerequisites to the initiation of this suit under 42 U.S.C. § 1997 have been met.

Pursuant to 42 U.S.C. § 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.

Signed this Washington, D.C.

28th

day of ....!S"-'e~p~t'-'=e""'m~b.l::.er=--_ _ _ _ _ _ , 2009, at

S/Eric H. Holder, Jr.
A~NR-t~~~~-r-~-~-yH~~~~~J!~" the un~tates

42 U.S.C. § 1997

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EXHIBIT B

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u.s. Department of Justice
Civil Rights Division

Office of the Assistant Attomey General

Washington, D.C. 20530

The Honorable Chris Collins County Executive
Rath Building - 16th Floor, Rm. 1600'
Buffalo, NY 14202
RE: CRIPA Investigation of the Erie County Holding Center and the Erie County Correctional Facility.
Dear Mr. Collins:
We write to report the Civil Rights Divisioti's investigative 'findings of.conditions at the Erie County Holding Center ("ECHC") and the Erie County Correctional Facility ("ECCFrr). On November 13, 2007, we·notified then Erie County Executive Joel Giambra that we had initiated an investigation of these facilities pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, which authorizes the Department of Justice to seek remedies for any pattern or practice of conduGt that violates the constitutional rights of incarcerated persons. Initially, we informed Executive Giambra that our investigation would focus on medical care, mental health care, and protection f~om harm; however, in the course of our investigation, we also became aware of environmental health and sanitation conditions that warrant~d investigation.
We note that, initially, the County of Erie (the "County") cooperated with our investigation, providing the United states with some of the requested documents from January I, 2007, through March 1, 2008. Specifically, the County provided ECHC incident -reports; some grievances; state and national corrections reports; and ECHC and ECCF policies and procedures. However, the County did not produce corresponding medical reports, which limited our ability to assess the number and severity of injuries that inmates suffered following incidents of self-injurious behavior, attempted suicides, actualized suicides, inmate-on-inmate violence, and excessive use of force by staff.

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Initially, we planned to tour ECHC and ECCF in March 2008, but we re-scheduled our tour to August 2008 at the County's request,' 'due to the appointment of a new County Attorney. In the months leading up to the scheduled August tour, the County broke off all communication with us despite our repeated outreach and offers to meet and discuss the County's concerns. On June 16, 2008, the new County Attorney notified us that the County would no longer cooperate with our investigation. The County refused, and continues to refuse, to allow us access to the facilities, staff, or inmates.
The County's unreasonable denial of our request for access is especially troubling, given that inmates committed suicide on March 31, 2008, and April 3D, 2008, well after we' placed the County ,on notice that our investigation would review allegations of deficient suicide prevention measures. If the CQunty had agreed to our proposed investigation procedures, County officials ,would have had an early opportunity to work directly with our experts and staff, in an effort to improve conditions at the facilities with the hopes of avoiding such incidents. They also would have had an opportunity to address any ,identified problems on a voluntary, proactive basis at an early stage of this investigation.
Furthermore, while we strongly disagree with the County's decision to deny us access to the facilities, the County's denial of our request for access to Erie County inmates, even during regular visiting hours, is unreasonable and devoid of any legal or penological support. Inmates have a First Amendment right to speak with government representatives about the conditions of their confinement and the County has no legitimate penological basis to deny the inmates access to, United States government representatives.
In December 2008, we informed the County of our plans to travel to the ,County to interview inmates at ECHC and ECCF. The County again denied us access to, ECHC and ECCF inmates. Despite the County's refusal to cooperate, during our December 2008 visit to the County of Erie, we were able to communicate with a number' of current and recently transferred E'CHC inmates through an arrangement with the United States Marshals Service ("USMS") and various state facilities. 1

1

We appreciate the assistance provided to us by the New

York State Department of Correctional Services and the staff at

the Attica, Orleans, and Wende facilities.

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We later learned that the County interviewed some of 'the ECaC inmates with whom we communicated. We were told that these interviews were videotaped, that the inmates were asked what we had spoken to them about, and that they were required to sign a form. 2 We stressed to the County that such interviews could be construed as retaliation, which is unlawful under CRIPA, but we were given no assurances that the County would desist from such behavior. Notably, we repeated our offer to meet with the, County, in order to explain our investigative process, in~tead of having the County attempt to secure this information from inmates in a manner the inmates might find troubling. Again, our offer was rejected.

By law, our investigation must proceed regardless of whether officials choose to cooperate. Indeed, when CRIPA was enacted, lawmakers considered the possibility that state and local , officials might not cooperate in our federal investigation. See H.R. CONF. REP. '96-897, at 12 ,(1980), reprinted in 1980 U.S.C.C.A.N. 832, 836. Such non-cooperation is a factor that may be considered adversely when drawing conclusions about a facility. See id. We now draw such an adverse conclusion. 3

\

Consistent with the statutory requirements of CRIPA, we write to advise you of the findings of our investigationr' the

facts supporting them, and the minimum remedial measures that are

necessary to address the deficiencies we have identified. As

described more fully below, we conclude that the conditions of

confinement violate the constitutional rights of inmates confined

at ECHC and ECCF. In particular, we find that, based on

constitutionally deficient practices, the Erie County Sheriff's

Off ice ("ECSO"), the Jail Management Division ("JMD") , and the

Erie County Department of Mental Health ("ECDMH"), through the

Adult Forensic Mental Health Clinic, 'fail to protect inmates from

serious harmor'the risk of serious harm.

2

We requested copies of any videotapes from these

interview sessions and any forms 'signed by the inmates, but our

request was denied by the County.

3

The County's non-cooperation constitutes only one

factor that we consider in preparing our statutory findings and

recommendations. We also have considered the'documentation

provided by the County, reports issued by the National Commission

on Correctional Health Care 'and the New York State Commission on

Corrections, news articles, and interviews with private

attorneys, inmates, and local law enforcement officers.

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I • BACKGROUND
A. Facility Description
ECHC is a pre-trial detention center located in Buffalo l New York; ECCF is a correctional facility located in Alden l New York. Both facilities are under th~ authority of Erie County Sheriff Timothy B. Howard I and are managed by the Superintendent of the County I s JMD. 4 ECHC is the second largest pre-trial detention facility in New York. ECHC was built to house 680 inmates with the combination of "pod l ll open bay \\dormll~ and traditional linear-type cells. ECCF was built to house 1 / 070 convicted prisoners I parole violators l and ECHC overflow inmates. Approximately 23 / 000 people are processed through the two facilities each year l with a daily population of approximately 1 / 600. The ECSO provides medical and dental services to both facilities l while the Erie County Department of Mental Health Services I through the Adult Forensic Mental Health Clinic l provides the mental health services for both facil-ities. 5 ECHC and ECCF inmates may also be' admitted to the Erie County Medical Centerls secure Psychiatric Service Unit I guarded by in-hospital sheriff/s deputies.
B. Legal Standards
CRIPA authorizes the Attorney General to investigate and take appropriate action to enforce the constitutional rights of jail inmates and detainees subject to a pattern. or practice of unconstitutional conduct or conditions. 42 U.S.C. § 1997.
When a jurisdiction takes a person into custody and holds him there against his willI the Constitution imposes .upon the . jurisdiction a corresponding duty to assume some responsibility for the inmate/s safety and general well-being. County of Sacramento v. Lewis I 523 U.S. 833 1 851 (1998) (citing DeShaney v. Winnebago County Dept. of Social Servs' l 489 U.S. 189 / 199-200 (1989)). GenerallYI county governments must provide persons confined in a jail with reasonably safe conditions of

4

The Superintendent of the Holding Center oversees the

Administration I SecuritYI and Programs of both facilities and

reports directly to the Undersheriff I who reports directly to the

Sheriff.

: 5

National Commission on Correctional Health Carel Health

Services 'Study: Erie County CQrrections Facilities ("NCCHC 2008

Erie Reportll)I at 2 (Jan. 10 1 2008 1 revised l Feb. III 2008).

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confinement. See Bell v. Wolfish, 441 U.S. 520 (1979).

Specifi9al ly, the Eighth and Fourteenth Amendments require that

inmates, both pre- and post-trial, ~receive adequate food,

clothing, shelter, and medical care." Farmer v. Brennan,

511 U.S. 825, 832 (1994)i Benjamin v. Fraser, 343 F.3d 35

1·

(2d. Cir. 2003).

, I

The Eighth Amendment protects prisoners from present,

continuing, and future harm. See Helling v. McKinney,

509 U.S. 25, 33 (1993). Prison officials have a duty to protect

inmates from harm caused by other inmates and from excessive

physical force by correctional staff. See Farmer, 511 U.S. at

833;. see also, Ayers v. Coughlin, 780 F. 2d 205, 209 (2d Cir:.

198q). The Eighth Amendment further requires that inmates

receive access to adequate medical and mental health care. See

Farmer, 511 U.S. at 832; Benjamin, 343 F.3d at 50. Deliberate

indifference to the serious medical needs of inmates, including

pre-trial detainees, constitutes an unnecessary and wanton

infliction of pain contrary to contemporary standards of decency

and violates the Eighth Amendment. See Estelle v. Gamble, 429

U.S. 97, 104 (1976); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.

1996) .

The Fourteenth Amendment protects pre-trial detainees from being punished or exposed to conditions or practices not reasonably related to the legitimate governmental objectives. of safety, order, and security. Bell, 441 U.S. at 535-37, 547-48; Benjamin, 343 F.3d at 50. Although the Eighth Amendment does not apply to pre-trial detainees, they ~retain at least those constitutional rights. . enjoyed by convicted prisoners [under the Eighth Amendment]." Bell, at 545; Benjamin, 343 F.3d at 50 ("under the Due Process Clause, [pre-trial detainees] may not be punished in any manner - neither cruelly and unusually nor otherwise") i Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996).

1. Protection From H~r.m

The Eighth and Fourteenth Amendments forbid excessive

physical force against inmates and pre-trial detainees. See

-l

Hudson v. McMillian, 503 U.S. 1 (1992), Farmer r 511 U.S. at 832;

!

see also, United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999)

("the right of pre-trial detainees to be free from excessive

force amounting to punishment is protected by the Due Process

Clause of the Fourteenth Amendment.") (citing Bell, 441 U.S. at

535 [citations omitted]). This is true even when the use of

force does not result in significant injury. rd. A jailor

prison official who inflicts force maliciously and sadistically

I

to cause an inmate harm violates the Eighth and Fourteenth

1-

I .

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Amendments. See Livingston v. Griffinl 2007 U.S. Dist. Lexis 36941 1 at *30 (May 211 2007) (citing Hudson I 503 U.S. at 9) i Walsh l 194 F.3d at 47-48 (applying Fourteenth Amendment protections to pre-trial detainees in criminal case against corrections officer accused of violating inmate/s constitutional rights). Courts have "applied the same Eighth Amendment standards to the deliberate indifference claims of pre-trial' detainees. II Patrick v. Amicucci l 2007 WL 840124 1 at *3 (S.D.N.Y. Mar. 19 I 2007).
In determining whether excessive force was used l courts examine a variety of factors I including:
"[TJhe need for the application of force I the relationship between that need and the amount of force usedl the threat reasonably perceived by the responsible officials l and any efforts made to temper the severity of a forceful response. 1I
Hudson I, 503 U. S. at 7-,8 '.
In determining whether conduct rises to t~e level of a constitutional violation l the second Circuit requires that the "prison official have 'knowledge that an inmate faces substantial risk of serious harm and disregard[ed] that risk by failing to take rea,sonable measures to abate the harm. I II Patrick l 2007 WL 840124 at *3 (citing Lee v. Artuz I 2000 WL 231083 1 at *5, (S.D.N.Y. Feb. 29 1 2000»1 quoting from Hayes v. N.Y. City Dep't' of Corr' l 84 F.3d 614 1 620 (2d Cir .. 1996). The Second Circuit also requires that '~an injured inmate . . . show not' only that he was exposed to a substantial risk of serious harm but also that the defendant officials acted"with deliberate indifference to his health or safety. II Patrick I 2007 WL 840124 at *3 1 (citing Farme'rl 511 U.S. at 837). Liability arises where an official knew of and disregarded "an excessive risk to inmate health or safety [and is both] aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference. II Id. Prison officials have been found liable when "they are on notice of a substantial ripk of serious harm to an inmate and fail to take reasonable steps to protect 'him [or her) . II Id.
The right to be protected from harm includes the right to be reasonably protected from constant threats of violence. See Farmerl 511 U.S. at 833. This includes protecting inmates from sexual assault from other inmates and correctional officers. See Boddie v. Schnieder l 105 F.3d 857 1 861 (2d Cir. 1997) (finding the "sexual abuse of a prisoner by a corrections officer has no

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legitimate penological purpose I and is 'simply not part of the penalty that criminal offenders pay for their offenses against society. III) (citing Farmer I 511 U.S. at 834» i Villante v. Dep/t. of Corr. 1 786 F.2d 516, 522-23 (2d Cir. 1986) (finding inmate stated a cause of action for del.iberate indifference where guards failed to protect inmate from sexual threats and abuse by other inmates); Rodriguez v. McClenning, 399 F. Supp. 2d 228 1 236-238. (S.D.N.Y. 2005) (finding officer's sexual assault of prisoner constituted'an Eighth Amendment violation); Noguera v. Hasty, 2001 WL 2435.35 1 at *2 (S.D.N.Y. Mar. 12, 2001) j. Colman v. Vasquez, 142 F.Supp. 2d 226, 237 (D. Conn. 2001).
Lastly, "a corrections officer bears an affirmative duty to intercede on behalf of an inmate when the officer witnesses other officers maliciously beating that inmate in violation of the inmate's Eighth [and Fourteenth] Amendment rights. II Jones v. Huff, 789 F. Supp. 526, 535 (N.D.N.Y. 1992) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir: 1988» j see also, Walsh, 194 F.3d at 48 (holding "Hudson analysis is applicable to excessive use of force claims brought under the Fourteenth Amendment. " ). . "The duty arises if the off icer has a reasonable opportunity to intercede." Id. (citing O'Neill, 839 F.2d at 11).
2. Medical and Mental Health Care
The Constitution requires that prison officials address inmates' serious medical and mental health needs. Estelle, 429 U.S. at 104. Officials act with deliberate indifference when an inmate needs serious medical or mental health care and the officials fail tO I or refuse to, obtain or provide that care. Id.; see also, Hathaway v. Coughlin, 37 F. 3d 63 (2d Cir. 1994)j Kaminsky v. Rosenblum, 929 F. 2d 922 (2d Cir. 1991); Chance v. Armstrong, 143 F. 3d 698 (2d Cir. 1.98.8). The "deliberate indifference to a prisoner's serious medical needs constitutes the 'unnecessary and wanton infliction of pain'" in violation of the Eighth Amendment. Estelle, at 104 (citation omitted). This includes protecting prisoners whose health problems are "'sufficiently imminent' and 'sure or very likely to cause serious illness and needless suffering in the next week or month or year. III Young v. Coughlin, 1998 U.S. DisL LEXIS 764, at *11 (S.D.N.Y. Jan. 29, 1998) (citing Helling, 509 U.S. at 33).
The constitutional responsibility to provide minimally sufficient medical care includes treatment of psychiatric or mental health illnesses. Langley v. Coughlin, 888 F.2d 252 1 254 (2d Cir. 1989). Prison officials have an obligation to protect an inmate from self-inflicted injury where the prison official

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 23 of 36

"
- 8-

knew or had reason to know "of a potential suicide risk to an

inmate..

tI Eze v. Higgins, 1996 WL 861935, at *7 (W.D.N.Y.

1996) (citing Hudson, 468 U.S. at 526-27 '(1984)). Prison

officials act with a deliberate indifference to the risk of

suicide when they fail "to discover an individual's suicidal

tendencies . . . [or] could have discovered and have been aware

of the suicidal tendenci~s, but could be deliberately indifferent

in the manner by which they respond to the recognized risk of

suicide '..

tI Kelsey v. City of New York, 2006 U.S. Dist.

LEXIS 91977, at *16 (E.D.N.Y. Dec. 18, 2006) (citing Rellergert

v. Cape Girardeau County, 924 F.2d 794, 796 (8th Cir. 1991)).

3. Sanitation

Inmates are constitutionally entitled to environmental conditions that do not pose serious risks to health and safety, including deficient sanitation, inadequate fire safety, inadequate ventilation, and pest infestation. Benjamin, 343 F.3d at 52 (affirming district court findings that "inadequate ventilation, lighting, and exposure to extremes of temperature violated the detainees' constitutional rights") i Harris v. Westchester County Dep't of Corr., 2008 U.S. Dist. LEXIS 28372, at *18 (S.D.N.Y. Apr. 2, 2008) (finding a leaking c e i l i n g an "unsafe prison condi tion~') .

In the Second Circuit, "challenges by pre-trial detainees 'to the environmental conditions of their 'confinement are properly reviewed under the Due Process Claus,e of the Fourteenth Amendment, rather than the Cruel and Unusual Punishment Clause of the Eighth. '" Harris, 2008 U.S. Dist. LEXIS at *17, citing Benjamin, 343 F.3d at 49-50. "Where a pre-trial detainee alleges 'a protracted failure to provide safe prison conditions, the deliberate indifference standard does not require the detainees to show anything more than actual or imminent substantial harm. '" Harris, 2008 U.S. Dist. LEXIS at *17, citing Benjamin, 343 F.3d at 51 (emphasis omitted). Challenges by sentenced inmates to environmental conditions of confinement, however, are protected by the Eighth Amendment, and in order for an inmate to prevail on an environmental conditions of confinement claim, an inmate must
\
meet the deliberate indifference standard. See Hathaway, 37 F.3d at 66.

II. FINDINGS

The ECSO and JMD's administration of ECHC and ECCF is woefully inadequate and has resulted in a pattern of serious harm to inmates, including death. We find that the County, ECSO, JMD,

I

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 24 of 36

- 9-
and ECDMH fail to provide adequate suicide prevention; mental health care; medical care; p'rotection from harm; and safe and sanitary environmental conditions. In making these findings, we are cognizant that the County has received similar notice regarding conditions in ECHC and ECCF from the New York State Commission on Corrections ("NYSCC") and the National Commission on Correctional Health Care ("NCCHC") on mUltiple occasions, but has yet to remedy these issues. 6
A. Inadequate Suicide Prevention
Constitutional requirements mandate the development of suicide prevention standards. These standards require: (1) an appropriate policy and procedure; (2) education and training for all staff members; (3) appropriate screening to assess suicide risk; (4) appropriate housing for those identified as at risk; (5) appropriate supervision, observation, and monitoring of those inmates so identified; (6) appropriate referrals to mental health providers and facilities; (7) appropriate .communication between correctional health care personnel and correctional personnel; (8) appropriate intervention addressing procedures of how to handle a suicide in progress; and (9) appropriate notification, reporting, and 'review if a suicide does occur.
ECHC and ECCF's current suicide prevention practices do not comport with generally accepted standards of correctional mental health care. Although the policies we reviewed appear sound, it is clear by the number of recent suicides and attempted suicides that there are serious.problems with how the policy is

6

See,~, New York State Commission on Corrections,

Minimum Standards Evaluation - Erie County Jail Management

Division ("NYSCC 2006 Evaluation") (2006); New York State

Commission on Corrections Erie County Holding Center Cycle 2

Evaluation, Apr. 30, 2007 ("NYSCC ECHC Cycle 2 Evaluation Apr.

2007"); New York State Commission on Corrections Erie County

Holding Center Cycle 2 Evaluation, Aug. 6, 2007 ("NYSCC ECHC

Cycle 2 Evaluation Aug. 2007"); New York State Commission on

Corrections ECHC phase 2 Evaluation, Apr . 2008; National

Commission on Correctional Health Care, Health Services Study:

Erie County Corrections Facilities ("NCCHC 2008 Er'ie

Report") (Jan. 10, 2008, revised, Feb. 11, 2008); and numerous letters from the NYSCC to Erie officials, cited throughout.

I'

I

I

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 25 of 36

- 10 -

implemented and followed. 7 Moreover, despite a 2008 NCCHC warning, the County continues to house suicidal inmates in unsafe cells that. allow an inmate multiple ways to facilitate committing suicide, including: using steel. beds, wall plates removed from the wall, accessible grab bars, and bars on windows. 8 ECHC . inmates have exploi·ted cell deficiencies, incorporating them into their ·suicide attempts. Since 2003, at least 23 inmates either committed, or attempted to commit, suicide, or took steps that demonstrated· suicidal ideation. Between 2007-2008 there were three suicides and at least ten attempted suicides. Below, we provide examples of the County's inability to supervise inmates, identify inmates at risk for suicide, correct deficiencies in cells that facilitate suicide attempts, and prevent likely suicide attempts.

•

ECHC inmates have committed suicide by hanging

themselves from air vents using bed sheets. In 2008

alone, two inmates died in such a manner, raising the

total to over 15. inmates who have committed, or

attempted to commit, suicide in a similar fashion since

2002.

•

In the past two years, more than five.inmates who

attempted suicide by hanging or self-strangulation were

unsuccessful only because a guard or another inmate

discovered the attempt and cut down the self-made noose

or otherwise removed the fabric from around the

inmate's neck. In one instance, ECHC deputies

discovered a distraught inmate in his cell only after

the rope broke during his attempt to hang himself.

7

For ·example, ·the Suicide Prevention Policy requires

that inmates housed in Constant Observation receive

uninterrupted, personal visual observation. Yet, inmates held in

constant observation are still finding ways to hide contraband,

such .as a bullet. Similarly, the policy requires that the

dispensation of psychotropic medication be adequately monitored,

yet one inmate attempted suicide by ingesting another inmate's

medication, while yet another inmate hoarded his medication for

weeks without notice.

I

NCCHC 2008 Erie Report, supra, n. 5, at 10 ("The cells used to house suicidal inmates were not 'suicide-proof.' There

\.
I

were multiple ways to facilitate committing suicide, including using the steel beds, wall plates that are lifted from the wall,

handicapped bars, bars on windows, etc.").

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 26 of 36

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In.December 2008, an ECHC inmate attempted suicide by hanging. This was the inmate's third suicide attempt.

o

In March 2008, an ECHC inmate committed suicide by

hanging, despite a ·warning from the inmate's family

that the inmate C9uld be suicidal ..

o

In February 2008, a 17-year-old ECHC inmate attempted

suicide by hanging. Two other inmates grabbed his legs

and successfully untied the sheets from the bars.

In November 2007, an ECHC inmate attempted suicide while under constant observation. Despite the suicide attempt, ECHC officials released the inmate into general population, where he again attempted suicide six days after his earlier attempt.

o

In May 2007,. ECHC deputies found an inmate unconscious

on the floor of his cell after he attempted suicide by

ingesting a dangerous quantity of another inmate's

quetiapine. 9 Deputies found a suicide note in his

cell, and ECHC documents do not indicate whether the

inmate ever regained consciousness.

In January 2007, an ECHC inmate committed suicide in view of deputies by diving off a 15-foot railing in the common area. Upon admission to ECHC, the inmate was reportedly evaluated by forensic staff and determined not to be a suicide risk.

In addition to suicides and attempted suicides, we found many examples of inmates who engaged in self-injurious behavior, including banging their heads against the wall, cutting themselves with metal and glass objects, and verbally expressing a desire to die. Documentation provided by the County fails to indicate that these inmates were referred for mental health assessments or further suicide screening. Furthermore, despite prior warnings from the NYSCC, the County's facilities provide
ready access to a number of environmental hazards such as screws,

9

A psychotropic medication used to treat the symptoms of

psychotic conditions such as schizophrenia and bipolar disorder.

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 27 of 36

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nuts, and bolts on chairs that could cause.injury or be removed

and used as a weapon. 10 For example:.

.

~

In October 2007, ECHC deputies found an inmate, who had

attempted suicide on a prior occasion, holding a broken

I ight bulb to his neck. 11

~

In september 2007, deputies witnessed an inmate smash

his ce~l window and cut his arm with a broken piece of

glass .12

~

In June 2007, an ECHC inmate verbally threatened

self-harm after he flooded his cell and smeared feces on himself and the .cell wall. Deputies sent the i~mate

for a medical' examination regarding injury to his eye.

There is no indication in the materials provided by the

County that the inmate received any psychiatric

evaluation.

~

In February 2007 r ECHC deputies discovered an inmate

hoarding 38 pills he was to be taking three times each

day to treat high blood pressure. Deputies did not

refer the inmate for a psychiatric evaluation because

the inmate reportedly indicated he did not wish to harm

·himself.

The availability of dangerous implements and numerous examples of self-injurious behavior amplify the County's inability to monitor and supervise inmates. The examples also illustrate the Countyrs inability or unwillingness to refer inmates for appropriate mental health treatment .. Given the number of suicides and attempted suicides at these facilities r at least five. of which occurred following the release of the NCCHC 2008 Erie Report placing the ~ounty on notice of such issues r it is evident that County officials are deliberately indifferent and have not taken these incidents or the recommendations of the
NYSCC and NCCHC seriously.

n. 10 NYSCC ECHC Cycle 2 Evaluation Aug. 2007 r supra, n. 6,

at 4i NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra,

6, at 6.

11 Subsequently, this inmate was interviewed by forensic staff, who placed the. inmate on constant observation.

12. Subsequently, this inmate was interviewed by forensic staff, who placed the inmate on constant observation.

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 28 of 36

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B. Inadequate Mental Health Care
ECDMH fails to provide inmates with adequate mental health care. ECHC and ECCF inmates require mental health'assessments and treatment to avoid the unnecessary suffering of acute and chronic episodes of mental illness. Generally accepted correctional mental health care standards require that a physician see an inmate usually before, but clearly shortly after, a prescription for psychotropic medication is written so that the physician can evaluate whether the medication should be maintained and to assess the medication order for proper dosage and effectiveness. Inmates who remain untreated, or who are treated without being seen by a physician, may suffer from a worsening of their symptoms, including suicidal and homicidal thoughts, or from the potentially lethal side effects of medication. '
An alarming example of ,deficient mental health care is the death of inmate Jimmy Roberts.13 On May 19, 2007, Mr. Roberts died of pneumopia brought on by starvation and dehydration after spending four months in ECHC. ECHC staff ignored Mr. Roberts' deteriorating behavior despite clear signs of mental illness and decompensation, such as splashing urine and spreading feces on his face. The NYSCC investigation of Mr. Roberts' death found that ECHC officials failed to identify Mr. Roberts"medical condition and take the nE:'!cessary steps to prevent self-injurious behavior. 14 Moreover, the NYSCC cited several incidents that should, have alerted the medical staff to Mr. Roberts' decompensation (~, throwing food, rolling 'in feces). NYSCC also found that despite Mr. Roberts' increas'ing psychotic behavior, the ECHC physician failed to take any action to arrange for critically needed care. 1S The NYSCC found ECRe's care of Mr. Roberts inadequate, rising to ,the level of professional misconduct. 16 The NYSCC concluded that the current medical department at the facility is "incapable of providing medical

13

The name "Jimmie Roberts" is a pseudonym'.

14 New York State Commission on Corrections, Findings in
the Matter of the Death of (Jimmie Roberts], Jan. 10, 2008 ("NYSCC [Roberts] Report")

15

Id. at 6-9.

16

Id. at 6.

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evaluation and treatment" sufficiently to treat inmates who are seriou'slY ill. ~7
C. Inadequate Protection From Harm
Corrections officials must take reasonable steps to provide "humane conditions" of confinement. Farmer, 511 U.S. at 832. Providing humane conditions requires that a cor~ections system satisfy inmates' basic needs, such' as their need for safety. Additionally, jail officials have 'a duty to take reasonable steps to protect inmates from physical ~buse.
To ensure reasonably safe conditions, officials must take measures to prevent the unnecessary and inappropriate use of force by staff. Officials must also take reasonable steps to protect inmates from violence at the hands of other inmates. ~n addition, officials must provide adequate systems to investigate incidents of harm, including staff misconduct and alleged physical abuse of inmates. Finally, a jail has an obligation to protect vulnerable inmates from harm, such as those who are at risk of suicide or at risk of harm from other inmates. For the reasons set forth below, ECHC and ECCF fail to meet constitutional standards in all of these regards.
1. Deficient Policies and Procedures
a. Overall Content and Structure of ECHC and ECCF's Policies and Procedures
Policies and procedures are the primary means by which jail management communicate their standards and expectations. Thus, policies and procedures should be current/ accessible to all correctional officers and staff/ and cQnsistent with relevant legal standards and contemporary correctional practices. Typically, correctional institutions have a uniform policy that governs the Jail Administration. The uniform policy may contain post orders, much like the ECHC Manual 'contains, that are specific to areas such as intake booking and court hold. Most importantly, however, the uniform policy would provide operational guidance oh, inter alia/ the use of force, use of restraints, use of chemical agents, suicide prevention, and the grievance process. These uniform policies would be enforced throughout both facilities and all Jail Staff would be trained on one set of operational guidelines. Failure to do so may allow for informal practices to flourish, thus making it difficult to

~7

Id. at 7.

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 30 of 36
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monitor the appropriate application of the institution's governing policies.
ECSO provided us with a copy of the Policies and Procedure Manuals (collectively, the "Manuals") for both ECHC ("ECHC Manual") and ECCF ("ECCF Manual"). The ECHC Manual is dated January 29, 2005, while the ECCF Manual is dated October 7, 2003. A review of the Manuals indicates that many sections are outdated, and many ~ave not been updated in several years. For example,. the ECCF use of force policy, Policy 04-09-00 (Physical Force/Corporal Punishment), was last updated in 1991. Similarly outdated are ECCF's suicide prevention screening guidelines, 0903-01, update.d in 1990; restraint policy, 04-09-01, updated in 1997; and grievance policy, 04-11-00, updated in 1999. ECHC policies are similarly dated (i.e., Use of Firearms/Force Report, JMD 04.03.01, updated in 2002i and Contraband Control, JMD 05-0390, updated in 2003). Notably, in 2004, the ECSO's JMD enacted JMD 02.20.00, requiring' the annual review of JMD Policy and Procedures' concerning "Classification," "Grievance," and "Suicide Prevention." We are unable to determine, based .on 'the documents that were produced by the County in.February 2008 and the County's continued refusal to cooperate with our investigation, whether the County has reviewed or updated these manuals; the date on the materials we received suggests that they have not. Accordingly, we must assume that they have not been updated.
Moreover, the organization of the Manuals is sonfusing. It is our understanding that the ECSO has custodial responsibilities over both ECHC and EeCF and that the JMD oversees the operation of the facilities. Given this arrangement, it is unclear why there are individual, and dissimilar, manuals for ECHC and ECCF. For example, while the ECCF Manual contains policies on the Use of Forte, the ECHC 'Manual does not,le and while Spanish-spe'aking inmates' at ECHC are not provided a translated Inmate Handbook, Spanish-speaking inmates at ECCF are. See infra, Section II.C.9. Similarly, it is unclear why there are. different inmate handbooks for each facility.19 The NYSCC noted this discrepancy in its April 2008 Jail Evaluation, finding deficiencies in the disciplinary sanctions of unsentenced inmates who were housed at ECCF, stating that these inmates who were "transferred to the
18 The ECHC Manual has a Use of Firearms/Force Report Policy, JMD 04.03.01; however, it is less a policy on appropriate uses of force and more a policy on reporting the use of force.
19 ECHC has an.Inmate Handbook and ECCF has an Inmate Code of Conduct. See infra, Section II.C.9.

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 31 of 36
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Holding Center for disciplinary reasons were having their disciplinary hearing at the Holding Center ,"20 subj ect to ECHC's inmate rule book and not the ECCF inmate rule book. It further found that the two rule books differed in classes of violations and sanctions. 2l The NYSCC recommended that JMD "consider developing and implementing a single inmate rule bookn for both facilities. 22
b. Deficient Use of Force Policies and Procedures
While the use of force is sometimes necessary in a correcti,onal facility, the Constitution forbids excesE?;Lve physical force against inmates. A determination of whether force is used appropriately requires an evaluation of the need for the use of force, the relationship between that need and the amount of force used, the seriousness of the threat reasonably believed to exist, arid efforts made to temper the severity of a forceful response. Hudson v. McMillian, 503 U.S. I, 7 (1992). Generally accepted correctional practices provide that appropriate uses of force in a given circumstance should include a continuum of interventions, and that the amount of force used should not be disproportionate to the threat posed by the inmate. Absent exigent circumstqnces, lesser forms of intervention, such as issuing disciplinary infractions or passive escorts, should be used or considered prior to more serious and forceful interventions. This guidance is typically found in a use of force policy. Failure to provide staff with operational guidance on when the use of force, is appropriate is a gross departure from generally accepted correctional standards.
The ECHC's Manual fails to,provide operational guidance on the use of force. , In contrast with generally accepted corrections practices, ECHC has no operating policy governing the ,application of force at ECHC, and no system in place to monitor the use of force. The ECHC Manual makes several vague references to a "Response Team," appar'ently utilized to quell emergency ipmate disturbancesj however, there is no policy governing the team's assembly. ECHC's use of force and its use of the Response Team, without any operating policies and procedures, fails to
20 New York state Commission of Correction ECHC Phase 2 Eva'luation, Apr. 2008, supra, n. 6, at 4.
2l
22

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provide inmates with sufficient protection from harm and creates a climate where the unfettered use of force is permissible because there are no operating guidelines holding anyone accountable.

While the ECHC Manual makes several vague references to the "Response Team," the Manual itself does not provide a policy describing the composition of this team, how it is assembled, its purpose and specific use, or how members of this team are trained, if at all. It is also unclear what the exact purpose of the Response Team is; however, JMD 04.03.01 provides that a use of force report must be prepared whenever the Response Team is "required to control an inmate situation wherein force may be used to quell the situation'." The policy, however, does not explain what is meant by "control" and "inmate situation," nor does it discuss the appropriate or permissible uses of force,by the Response Team. See JMD 04.03.01. Moreover, JMD 06.01.02 makes reference to a "secondary response team" tJ:.at will be assembled in the ev~nt of a riot or hostage situation; again, limited guidance is given on the composition of this "secondary response team." See JMD 06.01.02. Employing a special operations team, like the Response Team, that is to be used in emergency situations without operational guidance as to its structure and use, is a gross departure from generally accepted correctional standards ..

Our review of the ECHC Manual did not reveal a Use of Force

policy that directs Jail Staff as to when the use of force is

appropriate, and what types of force should be used. By

contrast, as discussed above, the ECCF manual provides guidance

on the use of force, albeit dated. See EC~F Manual, Physical

Force/Corporal Punishment, 04.09.00. While th~ ECHC Manual does

contain guidance on·the planned use of force, Policy JMD

06.01.03, this policy is strictly limited to planned uses of

force initiated by the Quick Entry Team ("QET"). Moreover, this

policy is located in the Emergency Preparedness section of the

ECHC Manual, further limiting its application to situational

necessity . . The ECHC. Manual also contains guidance on the

reporting of force; however, this policy fails to provide

-i

operational guidance on when the use of force 'itself is

appropriate. See ECSO Use of FirearmS/Force Report, JMD

04.03.01. The ECHC Manual should provide written operational

guidance on what are legally acceptable uses of force, in keeping

with Constitutional, federal, and state guidelines, as well as

generally accepted correctional standards. However, the ECHC

Manual does not provide any language for when the use of force,

absent an emergency situation, is permissible.

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 33 of 36

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2. Excessive Use of Force

Our investigation revealed that inmates at ECHC and ECCF are regularly subjected to inappropriate, excessive and degrading uses of physical force. The following are illustrative examples:

9

Inmates we interviewed consistently reported that ECSO

deputies would take ECHC inmates on "elevator rides,"

during which deputies would. reportedly physically

assault inmates. Inmates consistently described

incidents in which dep~ties would take handcuffed

inmates to an isolated elevator (which was not equipped

with a security camera) where th~y would be beaten and

had their h~ads slammed against the elevator walls.

In August 2008, an ECHC inmate was handcuffed, stripped, and cavity searched by a deputy who then used the same rubber gloves to search other inmates. When the inmate requested that the deputy change his .gloves, which were dirty with blood and fecal matter, the deputy struck the inmate on the head and forcibly performed the search, stating that he "did not have to do a damn thing."

8

In 2008, according to inmate interviews, ECSO deputies

. ordered other inmates to go into the cell of an inmate

who refused to shower, pull the inmate out of the cell,

strip him and wash him on the.floor of the pod common

area with rags and a bucket of water.

.

8

In January 2008, ECSO deputies reportedly targeted

inmat~s who were screaming as a result of the New Year.

Inmates told us that, in the case of one of the

inmates, the deputies punched, kicked, and reportedly

tied a sheet around the inmate's neck, threatening to

hang him. The inmate was then shackled and taken to an

isolation cell, where the deputies continued to punch

~nd kick him.

In August 2007, during the booking process, ECHC deputies struck a pregnant inmate in the face, threw her to the ground, and kneed her in the side of her stomach. When she informed deputies that she was pregnant! the deputies allegedly replied that they thought she was fat, not pregnant. The inmate lost her two front teeth as a result of the assault.

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 34 of 36

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An ECCF inmate died of a stroke in March, 2007, after suffering a brain injury when ECCF deputies smashed his head against a wall. ' The inmate requested medical help following the incident, but was ignored despite noticeable signs of injury (dragging his foot when walking and continually dropping things) .

In April 2006, an ECRC inmate (held in the facility for urinating in public) was knocked unconscious and sUptained a collapsed lung, fractures to six rib~, and' a spleen injury (resulting in removal) as a result of a beating by County deputies. The inmate alleges that the incident arose from his attempt to air out his cell from the odor of other inmates' defecation and vomit.

3. Inadequate Reporting of Use of Force

Effeqtive measures to prevent excessive and inappropriate uses, of force include the adequate reporting of information to permit the identification of potential problem cases and effective internal investigations. We find that ECRC fails to elicit adequate information about use of force incidents, making management review ineffective. Generally accepted correctional standards require written reports of uses of force. These reports should be submitted to administrative staff for revi~w. Although the County of Erie produced incident reports for ECRC, it did not produce any of the use of force forms that reportedly accompany these reports. The incident reports themselves indicate whether a use of force report was filed under the "Action Taken" sectidn of the Incident Report. While most of the incident reports where force was used indicated that a use of force form was submitted, there were several incidents where force was clearly used, but the submission of a ,use of force form was not indicated. F9r example:

•

An october 2007 report indicates that two deputies were

injured subduing an inmate who attempted to strike a

deputy. While the report indicates that the deputies

secured the inmate on the floor with handcuffs, there

is no indication what type or level of force the

deput'ies, used to achieve compliance.

II

Similarly, a September 2007 incident report describing

an incident in which two deputies were inj~red subduing

an inmate who struck a deputy, indicates only that the

deputies took the inmate to the' ground and secured him'

in handcuffs. There is no indication what type or

level of force the ,deputies used to achieve compliance.

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 35 of 36

- 20 -

•

An August 7 r 2007 report indicates that an ECHC inmate

who struck a deputy was secured by the response teamr placed in mechanical restraints r and put into an

isolation cell. However r there is no information on

the force used,to secure the inmate or the length of

time he was restrained r nor is there any indication

whether medical clearance was secured before the inmate

was placed in restraints.

JMDrs failure to ensure complete use of force reporting prevents adequate monitoring of the use of force within its facilities. As a result r the ECSD is unable to accurately gauge the amount of force used and whether such force is appropriately used.

4. Inadequate and Ineffect,ive Inmate Supervision

a. Deputy-Encouraged Violence

ECSD deputies npt only fail to protect inmates from,harm r butr as our investigation revealedr they affirmatively place

inmates in harmrs way by pitting inmates against one another in

combat. We have received reports of'ECSD deputies relying on

inmates to discipline sometimes +"eferred to

other as the

i

nm'ates deputie

wi sr

th force. "petrll re

Thes ceive

e ,

inma extra

tes

r

privileges r such as extra meals and hygiene products. AlarminglYr we have learned of ECSO deputies harassing inmates

charged with a sexual offense. We have received numerous reports

of deputies openly announcing the charges of alleged sexual

offenders r including describing inmates as "Rape-Os. 1I Deputies 'would reportedly ,announce an inmaters charge in the presence of

other inmates and then leave the roomr allowing the other inmates

an opportunity to physically ass,ault the alleged sexual offende'r.

b. Inmate-on-Inmate Violence

Insufficient inmate supervision is a serious problem at ECHC and ECCF. The County i.s,well aware of this issue. Undersheriff
Brian D. Doyle has publicly stated that ECHC does not have sufficient "security staff. 1123 Indeed r our review of the Countyr s own incident ,reports confirms 'this admission. Incident
reports revealed ,that between January lr 2007 and February 9 r 2008 r there were over 70 reported incidents of inmate-on-inmate

23

Gene Warner r Inmate Well-Being Comes Under Scrutiny;

Medical Care Limited at County Facilities r Buffalo News r

Aug. 5 r 2007.

i
I'

Case 1:09-cv-00849-WMS-JJM Document 1 Filed 09/30/09 Page 36 of 36

- 21 -.

assaults, including sexual assaults. In many of the incidents of inmate-on-inmate violence, ECSO deputies on duty were not present, giving inmates ample opportunity to fight. The following examples are illustrative:

o

On December 1, 2007, an inmate was held down by another

inmate and punched and kicked by a third inmate. The

victimized inmate indicated that he was attacked

because he was held on sodomy charges.

On April 12, 2007, an inmate was grabbed by the' throat and punched in the face by three other inmates, suffering a swollen right eye and left'cheek as a result 6f the attack. According to the County's records, the deputy on duty was taking a "bathroom break" when the assault occurred.

0,

On. March 28, 2007, deputies discovered an inmate, who

had been in a fight with another inmate, lying on the

floor, bleeding from a headwounq.

•

On February 2, 2007, an inmate was stabbed with a

broken broom handle. The deputy on duty reported that

he did not see the assault because he was moving a box

into the elevator at the time.

•

On January 24, 2008, an inmate was sexually harassed

and assaulted by three inmates who pulled his pants

down, slapped him on the buttocks, called him "honey~"

grabbed towards his genitalia in a teasing manner, and

grabbed his nipples. There is no indication from this

incident report whether any of the aggressors were

disciplined for their actions.

ECSO deputies do not appear to consistently intervene to

stop inmate violence. There have been severa.l incidents in which

deputies either watched an altercation escalate from a verbal

disagreement to ~ physica~ altercation, or allowed·other inmates

to break up a fight and detain the inmates until additional

deputies arrived. For example:

.

.

•

On November 26, 2007, a deputy witnessed an inmate

throw a chair across the law library at another inmate

because he thought the other inmate was a "snitch."

On November 19, 2007, a deputy witnessed two inmates arguing and then fighting. ,He also witnessed a third inmate join. the fight and punch and kick another inmate

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in the head. There is no indication in the report whether this deputy attempted to break up the fight or even intervened during the argument, before it escalated to a fight.
On October 30, 2007, a deputy witnessed an inmate strike another inmate who had been knocked to the ground. When the attacking inmate refused the deputy's order to stop fightingr two other' inmates interceded to restrain the attacker until additional deputies arrived on the scene.
As the incident reports demonstrate, and as our interviews consistently confirmed, inmates who are not adequately supervised have opportunities to engage in fights. The situation in the County facilities appears so volatile that minor slights appear to instigate physical altercations. We noted numerous instances in which inmates fought one another for inconsequential reasons,' such as: one inmate denied another inmate access to a newspaper, an inmate cut ahead of another inmate in the lunch liner and one inmate told another inmate that he had "smelly feet.1/ Each of these exchanges led to fights among inmates. As the above examples demonstrate, ECSO and JMD are not meeting constitutional obligations to provide for the safety and well-being of inmates.
c. Unprofessional and Provocative Attitude Towards Inmates
Establishing a professional environment in a correctional setting is critical to maintaining the safety and security of inmates and staff. In addition to reports that deputies have encouraged inmate violence, we have also learned that deputy supervisors at ECCF have permitted a culture of unprofessional and provocative attitude towards ,inmates to flourish within the facility.24
Notably, in June 2008 the NYSCC cited ECCF Jail staff for "unprofessional and provocative attitude toward the inmate populationl/25 for posting informational sheets labeled "Frequently Asked Questions" within the dormitories housing pre-trial detainees that contained such comments as "Deputies are here to tell 'you what to dOil/' "Deputies decide when you go to
24 Letter from NYSCC to Sheriff Timothy Howard, dated June 5, 2008, Cycle 3 Evaluation, at 12.
25

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exercise; ,,26 and "How do you become a Lima unit porter? Don't ask

we

will

ask

you.

2 /1 7

The NYSCC found these sheets to be

unprofessional and that ECSO should view these statements "as an

embarrassment to the corrections profession. /l2B Moreover, the

NYSCC found that the "condescending tone '" perpetuates a

negative work environment ,,,29 and the failure of "deputy sheriff

supervisors , .. to remove such posting and take further action is

unconscionable. 1130 These "informational sheets ," coupled by the

reports of deputy encouraged violence (see Section II.C.4.a,

supra) and sexual misconduct (see section II.C.6, infra) further

illustrates a culture that undervalues the safety and well-being

of inmates housed within its facility. Indeed, a condescending

att'itude towards an inmate population may lead security staff to

believe that they have an unfettered control over inmates that

allow them to engage in unconstitutional behavior, such as

encouraging inmate violence and engaging in inappropriate sexual

conduct with inmates.

d. Inadequate Division of Supervisory Responsibility

ECCF houses both pre- and-post-trial inmates. ECSO employs two separate work forces to supervise "unsentenced" and "sentenced" inmates aj: ECCF. Specifically, deputies are assigned to "unsentenced inmates," while correctional officers are assigned to "sentenced inmates. 1131 The NYSCCfound this arrangement "jeopardizes the safety and security of staff and inmates at the Correctional Facility. ,,32 According to NYSCC, .because the security staff are members of two distinct unions, based on their'work assignment, there is confusion over which union or security detail has specific control over a particular inmate. Indeed, NYSCC's staff "witnessed members of both unions

26

Id.

27

Id.

28

Id.

29

.ld.

30

Id.

31

ld.

32 Letter from NYSCC to Sheriff Timothy Howard, dated ·June 5, 2008, Cycle 3 Evaluation, at 11.

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openly debating and arguing [over] which union has authority over an inmate. ,,33 The NYSCC further noted, that each work force has different break schedules and different work hours r naffect[ing] the lock-in time of inmates during the count. 1I Moreover r while both work forc:::es are naccountable to the Chief and Superintendent of the Correctional FacilitYr ll "each union member is only accountable to the supervisors in their respective unions. 1134, Accountability and supervisory responsibility was a noted problem where r for example r "during evening r 'nigpts r and weekendsll the highest ranking employee for deputies "is a Sergeantll whereas the highest ranking corrections officer is "the' Tour Commander .1135 This confusion in supervisory responsibilities amplifies the deficiencies in inmate supervision.
5. Inadequate Classification
ECHC and ECCF have an inadequate classification systern r and it contributes to unsafe conditions at the facilities. Generally accepted correctional standards require separation of problematic inmates and those who are more vulnerable to violence and abuse from the general population. ECHC and ECCFrs failure to do so makes supervision more difficult and increases the risk of harm to both staff and inmates.
The Countyrs classification system is flawed and fails to adequately assess critical factors such as an inmaters criminal history while in custodYr escape historYr and li.kelihood of victimization. While the Countyrs classification instrumerit does identify these 'areas r the JMD fails to provide operational guidance on how to address such issues. As the NYSCC noted r this is a major concern because the classification instrument influences how inmates are classified at ECHC and ECCF; "the quality of any classification determination and subsequent housing assignment is suspectll because "classification reviews and housing assignments are substantially based on outcomes of a flawed classification system. 1136 While officials at ECHC and ECCF cannot be expected to prevent all altercations between inmates r the Constitution requires correctional officers and County officials to take reasonable steps to protect inmates

33

34

35

36

NYSCC 2006 Evaluation r supra r n. 6 r at 21, 24.

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from violence. Disturbingly, the County was made aware of the inadequacies of its classification through an April 2007 NYSCC report, followed by an August 2007 NYSCC report indicating that the issues remained unaddressed. 37

As an example of the problems that an inadequate cla'ssification system can lead to, we learned of a situation in August 2008 in which a 16 year-old boy was reportedly placed in the "bullpen" at ECHC with adults. Placed among an adult population, this vulnerable youth was reportedly attacked and sexually assaulted iIi the middle of the night.

6. Sexual Misconduct

Our review of investigative reports revealed incidents of sexual misconduct at ECHC and ECCF resulting from staff-on-inmate and inmate-on-'inmate interaction. For example:

o

On September 16, 2008, a male ECCF deputy resigned

after engaging in inappropriate sexual conduct with a

female inmate.

A male EceF deputy reportedly sexually harassed several inmates in his unit by staring at the male inmates while they were in the shower. This deputy reportedly engaged in this conduct frequently and regularly. In at least one instance, the deputy placed his hand on an inmate who attempted to leave the shower. The deputy reportedly admired the inmate's physique and told him',
"we should work out together."

•. A male ECCF deputy reportedly engaged in lewd conduct with an inmate, placing his fingers through his uniform pants zipper to simulate fellatio and asking the inmate "do ydu want to suck' it?"

•

On September 9, 2007, a female inmate accused a male

deputy of rape. The inmate was sent to the hospital

and subsequeDtly moved to a different unit within ECHC.

There is no indication of whether an investigation was

conducted following the report of rape, nor whether the

deputy was, or would be, moved from the women's ward

while the charge's were being investigated.

37 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 5; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 8.

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7. Contraband and Vandalism
Another indicator of inadequate inmate supervision is the amount of dangerous contraband recovered from the. housing units and the ease with which inmates can fabricate homemade weapons. Due to the dilapidated condition of scores of cells, shower areas, and various dayroom features, inmates have ample material for fabricating weapons,. including floor tiles, metal from light fixtures, metal from the ventilation system, glass ·from cell light bulbs, electrical wiring, and plumbing fixtures. Inmates have been found with shanks of varying size that are made of broken glass and metal rods. Inmates have also been found with handcuff keys and a syringe, and in March 2007 an inmate handed deput~es a 40-caliber hollow point bullet he found under his cellmate's bed. At the time, both inmates were assigned to a cell designateSi for "constant observation. 1I While it is virtually impossible for any correctional facility to completely deter inmates from obtaining materials for weapons, the problem at ECHC and ECCF is exacerbated by inadequate supervision.
8. Grievance System
An inmate grievance system is a fundamental element of a functional jail system, intended to provide a mechanism for allowing inmates to raise concerns and issues to the administration. If viewed as cr~dible by inmates, it can also serve as a source of intelligence to staff regarding potential security breaches as well as staff excessive force or other misconduct. The grievance system should be readily accessible to. all inmates. Inmates should be able to file their grievances in a secure and confidential manner and without the threat of reprisals. Staff responsible for answering inmate grievan~es should do it in a responsive and prompt manner. We note a number of serious deficiencies with the inmate grievance process at ECHC and ECCF.
The grievance system at ECHC and ECCF is inadequate and open to abuse. NYSCC questioned the integrity of the grievance program, finding the system informal, the policies inadequate, and jail officials unwilling to investigate allegations or quick to categorize grievances 'as disciplinary and therefore non-grievable, even when they were. 38 We note that the NYSCC has cited the County for such problems in 2007 and 2008. Because the
38 See generally NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 6; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at IOi NYSCC 2006 Evaluation, supra, n. 6, at 28-33.

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County provided us with only a very limited number of grievances for review, it is unclear whether the County has remedied these deficiencies. Therefore, we must conclude that the NYSCC findings remain unremedied. In June 2008, the NYSCC found that no grievances had been filed by pre-trial detainees housed at ECCF. 39 This clearly indicates that the grievance. system is not functional, thus depriving the JMD of a valuable source of information concerning questionable constitutional treatment.
One partial explanation for this is the bifurcated grievance system that the JMD.employs. Specifically, inmates are ins.tructed to utilize an informal grievance process that encourages inmates to raise their grievance with Jail Staff and allow Jail Staff an opportunity to informally resolve the grievance, rather than submit a formal grievance that is reviewed by the grievance officer. Although inmates are told that they may file a formal written grievance at any time, it is impossible for JMD to account for whether a request for a formal grievance is actually met. Encouraging an inmate to pursue a grievance informally can be problematic in some circumstances, especially .in those instances in which unlawful actions have occurred. Inmates who may have been subjected to unlawful conduct will, most likely, be reluctant to seek resolution from those who may have witnessed or be~n involved in the very actions that would be the basis for the grievance. The ECSO's failure to monitor the application of the grievance system makes it deliberately indifferent to serious allegations of force, harassment, and medical care to be ignored. Numerous inmates reported submitting a grievance, only to have it taken out of the mail slot and destroyed by deputies.
9. Access to Information
Generally accepted correctional standards require that newly admitted inmates receive an opportunity to learn about the facility rules and regulations, services that are available, policies and procedures that affect the inmate, and facility schedules. Each inmate should receive a facility handbOOk, containing all the relevant information, and should have an opportunity to have the information explained to him or her if the inmate cannot read. Typically, facilities have an orientation procedure .as a part of the intake prbcessing.
39 Letter from NYSCC to Sheriff Timothy Howard, dated June 5, 2008, Cycle 3 Evaluation,t at 9.

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It is our understanding that inmates are provided a copy of either the ECHC Inmate Handbook or the ECCF Code of Conduct upon arrival at the respective facility. However, these handbooks are not necessarily made available in Spanish. While ECCF offers a Spanish translation of the ECCF Code of Conduct, the translated version we received in February 2008 was last updated on November 20, 1992; the English version was revised on August 21, 2007. The County of Erie did not produce a Spanish translated version of the ECHC Inmate Handbook in response to our request. In order for inmates to avail themselves of the programs a facility offers or familiarize themselves with the rules and regulations within a given facility, to which they will be held accountable, inmates must be made aware of facility rules and protocols. Failure to do so is inconsistent with generally accepted correctional standards.
,D. Inadequate Medical Care
ECHC and ECCF officials are responsible for providing adequate medical care to inmates. A jail may not deny or intentionally interfere with medical treatment. A delay in providing medical treatment may be so significant that it amounts to a denial of treatment. Our investigation revealed that medical care provided at ECHC and ECCF falls below constitutionally required s~andards of care.
One key deficiency 'is the lack of on-site health care administrators to manage healthcare services at the facilities. Although a physician is assigned to all Erie County Detention facilities, the physician does not monitor the "appropriateness, timeliness and responsiveness of care and treatment or review[J the recommendations for treatment made by health care providers in the community,1I and " [tJhe physician is not involved in quality improvemerit reviews, training staff, or reviewing policy and procedures."'10 This level of ,oversight is critically important to ensure constitutionally adequate medical car~. For example, adequate oversight and management would identify problems in inmate medical records, provide advice on training, and assist in the development of policies that are consistent with generally accepted correctional healthcare standards. Without this oversight, it is impossible for ECSO and JMD to attest to the adequacy of medical care within their facilities. Indeed, the NCCHC could not adequately determine the quality of

'10

NCCHe 2008 Erie Report, supra, n. 5, at 8.

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-29 -

health care for its 2008 review r because the inmate health records ,were incomplete. 4l

The administration of health care services in ECHC and ECCF

is inadeguate r as there are no quality improvement programs or

monitoring procedures in place to internally assess the quality

of heath care at the facilities. 42 Moreover r ECHC and ECCF

medical policies and procedures fail to provide staff operational

guidance on quality of care. 43 The NYSCC cited both the ECHC and

ECCF in 2007 and 2008 for violating state law and employing

licensed practical,nurses44 ("LPW') without the direction or supervision of a registered nurser as required by state law. 4s

Specifically, the NYSCC cited the "incompetent assessment ll of an

LPN for returning inmate John Jackson r 46 who was suffering from

congestive heart failure r to his cell

Mr. Jackson later

41

Id. at 7.

42

Id. at 9.

43 Id. at '8. NCCHC noted that the policies were "under revision using the NCCHC Standards to revise the manual. 1I (Emphasis in the original) .

44 LPNs care for people who are sick, injured, convalescent, or disabled under the direction of physicians and registered nurses. LPNs are not to perform '''physical assessments of patients r, or make "independent clinical decisions [or] patient dispositions without direction from a registered professional nurse or licensed physician. 11 Letter from the NYSCC to Sheriff Timothy Howard, dated Mar. 29, 2007 (regarding the use of LPNs at ECCF, citing Article 139, New York State Education Law, Section 6902) .

4S Le,tter from the NYSCC to Sheriff Timothy Howard, dated May 28, 2008 (regarding the use of LPNs at ECHC) i Letter from the NYSCC to Sheriff Timothy Howard, dated Mar. 29, 2007 (regarding the use of 'LPNs at ECCF,citing Article 139, New York State Education 'Law, Section 6902); Letter from the NYSCC to Anthony J. Billittier III, M.D., Commissioner, Erie Cqunty Department of Health, dated Mar. 29, 2007 (regarding the death of inmate [John Jackson]) .

46

The name "John Jackson /' is a pseudonym.

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- 30 -
died. 47 Following an investigation into Mr. Jackson's death, the NYSCC found that the use of LPNs at ECCF, without the supervision of a registered nurse, was "commonplace. 1148 The NYSCC also' criticized ECSO's response to their letter notifying the Jail that the. "medical care that Mr. Jackson received was negligent and inadequate./ 49 The NYSCC's Medical Review Board found that ECSO's "flagrantly indifferent and dismissive attitude in response to a critical incident with a fatal outcome and to the requirements of state law and regulations are in no small part causative factors in such .outcomes. 1150 In May 2008, a little over a year after this finding, the NYSCC once again cited ECSO for similar professional misconduct. This time, ECHC was cited for employing LPNs without adequate supervision. 51
Through our review of incident reports, documents provided by the County, and recent state oversight reports, we find ECHC and ECCF document management of inmate medical records poor and often incomplete. We note that these problems have persisted for years, despite the .NYSCC placing the County on notice of such deficiencies since 2005. 52 As recently as early 2008, the' NCCHC similarly concluded that the County has not addressed this issue. 53 In addition to the 2008 NCCHC finding, we draw

47 Letter from the NYSCC to Sheriff Timothy Howard, dated Mar. 29, 2007 (finding the ECSO "summarily disregarded the facts that the medical care that Mr. [Jackson] received was negligent and inadequate ll ) i Letter from the NYSCC to Anthony J. Billittier III, M.D., Commissioner, Erie County Department of Health, dated Mar. 2 9, 2 0 07 .

48 Letter from the NYSCC to Anthony J. Billittier III, MD, Commissioner, Erie County Department of Health, dated Mar. 29, 2007.

49 Letter from the NYSCC to Sheriff Timothy Howard, dated Mar. 29, 2007.

50

Id.

51 Letter from the NYSCC to Sheriff Timothy Howard, dated May 28, 2008.

52 Letter from the NYSCC to Sheriff Timothy Howard, dated Sept. 27, 2005 (citing deficiencies in the maintenance of inmate medical records) .

53 NCCHC 2008 Erie Report, supra, n. 5, at 7, 24-25.

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additional negative inferences from the County's lack of cooperation with our investigation by failure to provide us with the requested inmate medical documents and access to the facilities.

Inmates at ECHC and ECCF suffering from serious medical conditions require continual observation and consistent treatment 'and care in. order to protect them from harm. The following examples illustrate that inmates at these facilities are not receiving adequate medical care.

•

In December 2007 and January 2008, four inmates

suffered multiple seizures. At least two of the

inmates were told to sleep on the floor, and there is

no indication that any of the inmates received

medication after being treated at the hospital. One of·

the four inmates with a seizure history was transferred

to the hospital after deputies found him lying

unresponsive on the floor. An additional inmate, with

a seizure history prior to detention, was found shaking

on the floor of h~r cell and was not immediately sent

for a medical evaluation.

•

In April 2007, ECCF was cited for providing inadequate

dental care to an inmate suffering from pain and a

sensitivity to food and liquids. 54 . The Citizens Policy

and Complaint Review Council found that ECCF took too

long to respond to the inmate's request to see a doctor

regarding his pain, finding 21 days unreasonably

long. 55

In March 2007, an ECHC nurse, while delivering prescribed medication to an'inmate, discovered that the inmate had died due to unknown causes. Earlier in the day, the inmate had refused food and requested that his cell window be opened.

I.' Inadequate Administration of Medication

It appears that ECHC and ECCF nursing staff who store and administer medication may be untrained in critical areas of security, accountability, common si~e effects of medications and

54 Letter from the NYSCC to Sheriff Timothy Howard, dated Apr. 24, 2007.
55

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documentation of administration of medicines. Alarmingly, the County was made aware of this deficiency through NYSCC evaluations in 2005 and 2006, as well as the NCCHC 2008 evaluation. 56 Further, we received consistent reports t'rom ECCF inmates that County deputies withhold inmate medication as a source of intimidation or punishment. The following examples illustrate the gravity of the situation:

a

Despite receiving .warnings from State oversight

agencies a:s recently as 2008., nursing staff fail to

ensure that inmates swallow their medication and fail

to check inmate identification p.rior to administering

medication. We reviewed'incidents from 2007 in which

an inmate attempted suicide by ingesting another

inmate's psychotropic medication; another inmate

hoarded his medicat,ion for several weeks before

deputies located it on his shelf; and a third inmate

admittedly faked a seizure in order to obtain his

prescription medication.

o

The NYSCC's review found controlled substances '''placed

in a paper bag and stored in the narcotic cabinet after

they have been discontinued or when the inmate has been

discharged ... [and that]

[~]hese controlled

substances are not counted each shift," in violat,ion of

Federal and State laws. 57

56 Letter from the NYSCC to Sheriff Timothy Howard, dated July 17, 2006 ("There is an inadequate system for the management of pharmaceuticals, including controlled substances"); Letter ,from NYSCC to Sheriff Patrick Gallivan, dated Apr. 18, 2005 (citing ECSO for not screening detainees); see also, Letter from the NYSCC to Sheriff Patrick Gallivan, dated Feb. 22, 2005 and Letter' from the NYSCC to Sheriff Timothy Howard, dated Sept. 27, 2005 (both addressing the inadequacy of ECHC's management of pharmaceuticals) .
57 Letter from the NYSCC to Sheriff Timothy Howard, dated July 17, 2006. In February 2005 ECSD was cited for leaving "two large boxes of controlled substances unattended in an unsecured area, in the medical unit," in violation of Federal and State laws that require the restriction of controlled substances "to a secure area under double lock." Letter from the NYSCC to Sheriff Patrick Gallivan, dated Feb. 22, 2005.

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The above. examples indicate that procedures for medication administration at the ECHC and ECCF are not 'consistent with generally accepted correctional standards.
2. Inadequate Infection Control
ECHC and ECCF fail to adequately treat, contain, and manage infectious disease. ECHC and ECCF's management of Tuberculosis ("TB") ,58 Methicillin-resistant Staphylococcus aureus ("MRSA"), 59 and other infectious diseases deviates from generally accepted correctional medical standards. This failure is dangerous and places inmates, staff, and the community at unnecessary risk of serious health problems.
Generally accepted correctional standards for the management of communicable diseases in correctional facilities require the development of a management plan. This plan, at a minimum, should address the screening, diagnosis, and treatment of HIVjAIDSi Sexually Transmitted Diseases; Hepatitis; MRSAi TB; and outbreaks of communicable diseases. ECHC and ECCF, however, have no written exposure control plan approved by the responsible physician. 60 The lack of a written exposure control plan has resulted in deficiencies related to the containment and treatment .of TB and MRSA. For example, the nursing staff at ECHC have confirmed that TB PPD testing is not performed on detainees at
58 TB is a life threatening respiratory ailment commonly found in correctional facilities. TB is prevalent in correctional facilities because of poor circulation or inadequate ventilation, and the close quarters of a transient population.
59 MRSA is a potentially dangerous drug-resistant bacteria that can cause serious systemic illness, permanent disfigurement, and death. A MRSA infection is sometimes confused by detainees and medical staff as a spider or insect bite, causing treatment to be delayed while the infection has time to worsen or spread. See http://www.aafp.org/fpr/20041100/10.html. MRSA is resistant to common antibiotics, such as methicillin, oxacillin, penicillin, and amoxicillin. MRSA is almost always spread by '-direct physical contact. However, spread may also occur through indirect contact by touching objects such as towels, sheets,· wound dressings, and clothes. MRSA can be difficult to treat and can progress to life-threatening blood or bone infections. See MedicineNet.com, http://www.medicinenet.com/staph_infection/page2.htm.
60 NCCHC 2008 Erie Report, supra, n. 5, at 10.

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the Holding Center, in contradiction to generally accepted correctional medical standards. 51 I~deed, we have received numerous reports from inmates housed at ECHC between 20D7 and 2008, confirming that they were not tested for TB upon arrival at the facility. Similarly deficient is ECHC's and ECCF's medical staffs' failure to identify symptoms clinically associated with a MRSA infection (~, red bumps, rashes, and the. "spider bite") . We have receive~ numerous reports from inmates held at these facilities who exhibited commonly known signs associated with MRSA and did not receive treatment.
Moreover, jail medical staff not only fail to screen inmates when they arrive at the facility and provide adequate surveillance of infectious diseases; medical staff also.do not provide discharge planning, therefore providing no monitoring for inmates with communicable or infectious diseases, understood to be a basic part of generally accepted correctional practices. 52
E. Environmental Health and· Safety Deficiencies
ECHC has severe environmental health and safety problems at numerous levels of operation. 53 Despite repeated NYSCC citations for poor sanitation and maintenance, ECSO and JMD have repeatedly failed to correct the problems. In 2007, NYSCC found maintenance and sanitation categorically inadequate throughout ECHC, exposing inmates and staff to unhealthy and unsafe conditions. State regulators cited ECSO and JMD on several occasions for overall poor sanitation, finding sanitation conditions "deplorable," with walls covered in toothpaste and cell bars covered in towels

51 Letter from NYSCC to Sheriff Timothy Howard, dated Oct. 10, 2007; Letter from NYSCC to Sheriff Patrick Gallivan, dated Apr .. 18, ·2005.

62 NCCHC 2008 Erie Report, supra, n. 5, at 10.

63

Given our· limited access to inmates held at ECCF, we

are unable to assess whether similar sanitation problems exist at

ECCF to the degree to which they exist at ECHC. We have received

reports, however, that conditions at ECCF are also unsanitary.

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and sheets. 64 NYSCC staff, for example, found a significant accumulation of Styrofoam food trays and other clutter in the cells. This is a serious problem, as it can attract insects and other vermin, as well as allow for the spread of disease. Maintenance and sanitation are categorically inadequate throughout the facility, exposing inmates and staff to unhealthy and unsafe environments as a result. We learned of one inmate who indicated he was housed, for at least one month, in an ECHC cell with four inches of standing water due to toilet flooding.
In a correctional setting where inmates and staff are dependent on maintenance staff for their water, heat, lighting, and ventilation, it is expected that these issues would be addressed in a timely' manner in order to reduce risks of illness and injury to inmates and s~aff alike. That is not the case here. NYSCC has cite~ ECSO and JMD for elect~ical hazards that. neither correctional officers nor maintenance staff seemed to be concerned about, despite the potential for harm being readily apparent . . In both April and August 2007, the NYSCC found ECHC supervisors were "not holding staff accountable for the sanitation of their assigned housing areas. 1165 Critical sanitation deficiencies included the failure of jail staff to properly secure sanitation equipment and supplies when not in use. Inmates have used sanitation equipment, like a broom, as ·a weapon. In one case, the handle was broken and used to stab another inmate.
ECSO and JMD were also cited for poor facility maintenance. The-NYSCC found the padding and cushion material on chairs in the day room were torn or removed, expos ~hat could be used to cause injury.
64 NYSCC ECHC.lCycle 2 Evaluation Aug. 2007, supra, n. 6, at 5; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 9. The covering of cell bars with towels and sheets results not only in poor sanitation but also in security risks, as correctional officers are unable to see into cells when the bars are covered with towels.
65 NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n: 6, at 9; NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 5.

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serious

Laundry services at ECHC and ECCF are similarly inadequate. As of August 2007, ~[i]nmates [were) required to either wash their facility-issued and/or personally owned undergarment in a cell sink or arrange for the pick-up and washing of these items by family or friends. ,,67 This poses a serious problem, as soiled and/or improperly washed clothing can retain bacteria and other contagion that can cause infection or sp~ead disease. Moreover, inmates are forced to dry their clothes by hanging them in. their cells, thereby obstructing a deputy's view into the cell, thus compromising security. Lastly, the NYSCC noted that no clothing exchange was provided to inmates, as required under New York law. 68
III. RECOMMENDED REMEDIAL MEASURES
In order to rectify the identified deficiencies and protect the constitutional rights of inmates confined at ECHC and ECCF, ECSO and JMD should implement, at a minimum, the following remedial measures:
A. suicide Prevention Measures
1. Provide adequate treatment for inmates with self-injurious behavior.

67 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 4. Again, this inadequacy in sanitation also represents a security risk.
68 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, .n. 6, at 4; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 7; NYSCC 2006 Evaluation, supra, n. 6, at 13.

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2. Develop policies and procedures to ensure appropriate management of suicidal inmates and the establishment of 'a suicide prevention program.

3. Ensure that all staff are educated and adequately trained on suicide recognition, intervention, and management, including pre-service and annual in-service suicide prevention training, and that, prior to assuming their duties and on a regular basis thereafter, all staff who work directly with inmates have demonstrated competence in iden~ifying and managing suicide.

4. Ensure that ECHC and ECCF have written suicide

prevent~on policies that include an operational

.

description of the reqUirements for both pre-service

and annual in-service training.

5·,: Screen all inmates upon intake, including questioning to assess current and past suicide risk.

6. Document inmate suicide attempts at ECHC and ECCF in the inmate's c9rrectional record in the classification system, in order to ensure that intake staff will be aware of past suicide attempts if an inmate with a history of suicide attempts is admitted to ECHC and ECCF again in the fut~re.

7. Ensure that intake staff are sufficiently experienced and qualified to identify inmates who pose a risk for suicide, and that such inmates are promptly referred to the appropriate mental health professionals and provided appropriate housing.

'8. Ensure that follow-up evaluations by mental health professionals of all new inmates are conducted within 14 days of intake.

9. Ensure that inmates on suicide precautions receive adequate mental status examinat~ons by a mental health clinician.

10. Ensure that suicidal inmates are housed in an area that is safe for them with appropriate supervision and observation by staff.

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11. Ensure that 15- and 30-minute checks of inmates under observation for risk of suicide are timely performed and appropr.iately documented.
12. Provide different levels of supervision of an inmate based on the presenting risk factors for suicide.
13. Ensur~ that detainees placed on suicide watch are assessed adequately I monitored appropriately to ensure their health and safetYI and released from suicide watch as their clinical condition indicates I according to professional standards of care.
14 .. Ensure that cut-down. tools are readily available to staff in all housing units. Train staff in the use of cut-down tools.
15. Ensure a component of administrative review is implemented following a suicide or a suicide· attempt·to identify what could have been done to prevent the suicide.
B. Mental Health Care
1. Timely and Appropriate Evaluation qf Inmates
a. Ensure ECHC and ECCF properly identify inmates with mental illness through adequate screening I . and that such screening is incorporated into each inmate/s medical record.
b. Ensure that inmates with potentially serious chronic mental health illness are referred for prompt mental health evaluations and examinations by a psychiatrist.
c. ' Provide adequat·e mental health assessment and treatment in accordance with generally accepted correctional standards of mental health care.
d. Ensure that adequate crisis services are available to address the psychiatric emergencies of inmates.
e. Provide staffing adequate for inmates I serious mental health needs. Provide adequate on-site psychiatry coverage. Ensure that psychiatrists see inmates. in a timely manner. Ensure that

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psychotropic medication prescriptions are reviewed by a psychiatrist on a regular, timely basis.
2. Assessment and Treatment
a. Ensure that treatment plans adequately address inmates' serious mental health needs and that the plans co~tain interventions specifically tailored to the inmates' diagnoses and problems, consistent with generally accepted correctional practices. Provide therapy services where necessary for inmates with serious mental health needs. Provide adequate opportunities for inmates and staff to have confidential communications related to mental health treatment, while maintaining appropriate security precautions.
b. Ensure that mental health evaluations done as part of the disciplinary process include recommendations based on the inmate's mental health statuE?
c. Ensure that medications are provided to inmates in a timely manner and that they are properly monitored.
d. Provide staffing adequate for inmates with serious mental health needs. Ensure that services, such as distribution of medications, are performed by nurses or other properly trained staff. .
e. Provide policies and procedures that require the appropriate assessment of inmates with mental illness.
f. Ensure adequate medical documentation and general procedures as part of the mental health assessments that account for inmates' psychiatric histories.
3. Psychotherapeutic Medication Administration
a. Ensure timely responses to orders for medication and laboratory tests, and prompt documentation thereof in inmates' charts.'
b. Ensure that adequate psychotherapeutic medication administration is provided in accordance with

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generally accepted correctional mental health care standards.
c. Ensure that changes to inmates' psychotropic medications are clinically justified. Screen inmates on psychotropic medications for movement disorders and provide treatment where appropriate.
4. Othe'r Mental Health Issues
a.' Ensure that administrative segregation and observation status are not used to punish inmates for symptoms of mental illness and behaviors that are, because of mental illness, beyond their control.
b. Ensure that ECHC and ECCF mental health records are centralized, 'complete, and accurate.
c. Ensure that ECHC and ECCF quality assurance system is adequate to identify and correct serious deficiencies with the mental health system.
d. Ensure that a psychiatrist or physician conduct~ an in-person evaluation of an inmate prior to a seclusion or restraint order, or as soon thereafter as possible. Seclusion or restraint orders should include sufficient criteria for release.
e. Ensure that all staff who directly intera,ct with inmates (including Correctional Officers) receive competency-based training on basic mental health information (~, diagnosis, specific problematic behaviors, psychiatric medication, additional areas of concern)i recognition of signs and symptoms evidencing a response to traumai and the appropriate use of force for inmates who suffer from mental illness.
c. Protection from Har.m
1. Use of Force
a. Develop and maintain comprehensive and updated policies and procedures, in accordance with generally accepted correctional standards, regarding permissible use of force.

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b. Develop and maintain comprehensive policies and procedures, consistent with generally accepted correctional standards, regarding the establishment and deployment of the Response Team and Quick Entry ~eam, including permissible uses of force, use of force reporting, and necessary training specific for membership on this team.

c. Establish effective oversight of the use of force.

d. Develop an effective and comprehensive training program in the appropriate use of force.

2. Safety and Supervision

a. Ensure that correctional officer staffing and supervision levels are appropriate to adequately supervise inmates.

b. Ensure that inmate common areas are adequately supervised whenever inmates are present.

c. Ensure frequent, irregularly timed, and documented security rounds by correctional officers inside each housing unit.

d. Ensure that staff adequately and promptly report incidents.

e. Develop' a process to track all serious incidents that captures all relevant information, including: location, any injuries, if medical care is provided, primary and secondary staff involved, reviewing supervisor, external reviews and results (if applicable), remedy taken (if appropriate)', and administrative sign-off.

f. Establish a procedure to ensure that inmates do not possess or have access to contraband. Conduct regular inspections of cells and common areas of the housing units for contraband.

g. Conduct regular inspections of cells and common

areas of the housing units to identify and prevent

rule violations by inmates.

'

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h. Review, and revise as applicable, all security policies and Standard Operating Procedures on an annual basis.
i. Provide formal training on division-specific post orders each time a .correctional officer is transferred from one division to another.
j. Develop and implement specialized training for officers assigned to special management units, which include the Special Incarceration Units, disciplinary segregationr and protective custody units. Officers assigned to these units should possess a higher. level of experience and be regularly assigned to these units for stability purposes.
k. Develop and implement appropriate training for corrections staff addressing security administration regarding;
(1) Identification, prevention, and intervention in inmate-on-inmate violence; and
(2) Professionalism and appropriate interaction between corrections staff and inmates.
1. Ensure that adequate supervisory staff is in place to prevent staff provocation and staff encouragement of inmate violence.
m. Develop and implement adequate policies and procedures to ensure appropriate investigation of staff-on-inmate violence and to ensure that appropriate corrective actions are taken.
n. Ensure the adequate division of supervisory responsibility at ECCF r including, the establishment of clear lines of authority per shift, irrespective of union affiliation.
3. Classification
a. Develop and implement policies and procedures for an objective classification system that separates inmates in housing units by classification levels ..

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b. Update facility communication practices to provide officers involved in the classification process with current information as to cell availability on each division.
c. Update the classification system to include information on each inmate's his~ory.
4. Sexual Misconduct
a. Ensure that staff is trained and/or retrained on the Prison Rape Elimination Act.
b. Establish a zero tolerance standard regarding any form of sexual harassment or sexual misconduct that involves inmates, staff or any other individual that has contact with inmates.
c. Prompt written corrective action must follow any deficiency or negative finding that is revealed in either an administrative or criminal investigation surrounding sexual misconduct or sexual harassment.
5. Inmate Grievance Procedure
a. Develop and implement policies and procedures to ensure inmates have access to an adequate grievance process. Such process should ensure that grievances are processed and legitimat~ grievances addressed and remedied in a timely manner, responses are documented and communicated to inmates, inmates need not confront staff prior to filing grievances about them, and inmates may file grievances confidentially.
b. Ensure that grievance forms are available on all units.
c. Ensure that inmate grievances are screened for allegations of staff misconduct and, if the incident or allegation meets established criteria, referred for investigation.

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6. Access to Information
a. Ensure that newly admitted inmates receive information they need to comply with facility rules and regulations r report misconduct r access medical and mental health carer and seek redress of' grievances.
b. Ensure that inmates who are not literate are afforded the opportunity to have'information on facility rules and services explained to them
or~lly.
D. Medical Care
1. Intake Screening
a. Ensure that adequate intake screening and health assessments are provided for inmates in accordance with generally accepted correctional standards of care. Develop and implement an appropriate medical intake screening instrument that identifies observable and non-observable medical needs r including infectious diseases r and ensure timely access to a physician when presenting symptoms require such care.
b. Ensure that acute and chronic health needs of inmates are identified in o'rder to provide adequate medical care.
c. Ensure that medical screening information is reviewed in a timely manner by trained and appropriate medical care providers.
d. Ensure that tuberculosis ("TBfI) screening is conducted in a timely manner. Provide adequate treatment and management of communicable diseases (~r TB and Methicillin-resistant Staphylococcus aureus ("MRSAfI)r ~IVr and Hepatitis).
2. Acute care
a. Provide timely medical appointments and follow-up medical treatment. Ensure that inmates receive treatment that adequately addresses their serious medical needs. Ensure that inmates receive acute care in a timely and appropriate manner.

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b. Provide adequate acute care for inmates with serious and life-threatening conditions.
c. Ensure that staff are adequately trained and prepared to handle emergency situations in accordance with generally accepted correctional standards.
3. Chronic care
a. Ensure that inmates receive thorough assessments for, and monitoring of, their chronic illness. Develop clinical practice guidelines for inmates with chronic and communicable diseases. Ensure that standard diagnostic tools are employed to administer the appropriate preventative care in a timely manner.
b. Adopt and implement appropriate clinical guidelines for chronic diseases such as HIV, hypertension, diabetes, asthma, and elevated blood lipids, and policies and procedures on, among other things, timeliness of access tQ medical care, continuity of medication, infection control, medicine dispensing, intoxication/detoxification, record-keeping, disease prevention, and special needs'.
c. Ensure that medical staff 'are adequately trained to identify inmates in need of immediate or chronic care, and provide timely treatment or referrals for such inmates.
d. Ensure that inmates with chronic conditions are routinely seen by a physician to evaluate the status of their health and the effectiveness of the medication administered 'for their chronic conditions.
e. Ensure adequate follow-up treatment and medication administration concerning all inmates with 'chronic conditions.

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4. Treatment and Management of Communicable Disease
a. Provide adequate treatment and management of communicable diseases, including TB and Methicillin-resistant Staphylococcus aureus.
b. Ensure that inmates with communicable diseases are appropriately screened, isolated, and treated.
c. Ensure that HVAC and negative pressure systems are properly maintained and functioning.
d. Develop and implement an adequate TB control plan in accordance with generally accepted correctional standards of care. Such should provide guidelines for identification, treatment, and containment to prevent transmission of TB to staff or inmates.
e. Develop and implement policies that adequately manage contagious skin infections. Develop a skin infection control plan to set expectations and provide a work plan for the prevention of transmission of skin infections, including drug-resistant infections to staff and other inmates.
f. Develop and implement adequate guidelines to ensure that inmates receive appropriate wound care.
5. Follow-Up Care
a. Provide adequate care and maintain appropriate records for inmates following hospitalization. Ensure that inmates who receive specialty or hospital care are evaluated upon their return to th~ facility and that, at a minimum, discharge instructions are noted and appropriately provided.
6. Record Keeping
a. Ensure that medical records are adequate to assist in providing and managing the medical care needs of inmates at ECHC and EeCF.
b. Ensure that medical records are complete, accurate, readily accessible, and systematically organized. All 'clinical encounters and reviews of

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inmates should be documented in the inmates' records.
7. Medication Administration
a. Ensure that treatment and administration of medication to inmates is implemented in accordance with generally accepted correctional standards of care.
b. Ensure that administration of medication is accurate and adequately documented. Develop policies and procedures for the accurate distribution of medication and maintenance of medication records. Provide a systematic review of the use of medication to ensure that each inmate's prescribed regimen continues to be appropriate and effective for his condition.
c.' Ensure that medicine distribution is hygienic and appropriate for the needs of inmates.
B. Staffing, Training, and Supervision
a. Provide adequate staffing, training, and supervision of medical and correctional staff necessary to ensure adequate medical care is provided.
b. Ensure that meqical staffing is, adequate for inmates' serious medical needs and that physicians adequately monitor their patients.
c. Provide adequate physician oversight 'and supervision 6f medical staff, including supervision for LPNs.
d. Ensure that there is an adequate number of correctional officers to escort inmates to medical units.
9. Quality Assurance Review
a. Ensure that ECHC and ECCF's quality assurance system is adequate to identify and correct serious deficiencies with the medical system.

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b. Ensure that ECHC and ECCF's quality assurance system is capable of assisting in managing and treating.inmate medical needs. At a minimum, such a system should be reliable and capable of tracking medically-related incidents.
E. Sanitation and Environmental Conditions
1. Sanitation and Maintenance of Facilities
a. Develop and implement policies and procedures to ensure adequate cle"aning and maintenance of the facilities with meaningful" inspection processes and documentation. Such policies should include oversight and supervision, as well as establish dailY cleaning requirements for toilets, showers, and housing units.
b. Ensure prompt and proper maintenance of shower, toilet, and sink units.
c. Ensure proper ventilation and airflow in all cells and housing units.
d. Ensure adequate lighting in all housing units and prompt "replacement and repair of malfunctioning lighting fixtures, so that officers and inmates are not exposed to the security danger that lack of visibility presents.
2. Environmental Control
a. Ensure adequate control and observation of ECHC and ECCF cells, particularly with regard to razors, fire loading materials, commissary items, and cleaning supplies.
b. Repair electrical shock hazardsi develop and implement a system for maintenance and repair of electrical outlets, devices, and exposed electrical wires.
3. Sanitary Laundry Procedures
a. Ensure that laundry delivery procedures protect inmates from exposure to contagious disease, bodily fluids, and pathogens by preventing clean

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laundry from coming into contact with dirty laundry or contaminated surfaces.
b. To limit the spread of MRSA and other infectious disease, require inmates to provide all clothing and linens for ECHC and ECCF laundering and prevent inmates f~om washing and drying laundry outside the formal procedures.
c. To limit the spread of MRSA and other infectious disease, ensure that clothing and linens returned from off-site laundry facility are clean, sanitized, qnd completely dry.
d. Provide all, inmates with properly cleaned and adequate bedding and clothing
* * *
IV. CONCLUSION
Please note that this letter is a public document and will be posted on the Civil Rights Division's website.
We invite the State to discuss with us the remedial recommendations, with the goal of remedying the identified deficiencies without resort to litigation. In the event that we
a are unable to reach resolution regarding our concerns, the
Attorney General is empowered to institute a lawsuit pursuant to CRIPA to correct deficiencies of the kind identified in this letter, 49 days after appropriate officials have been notified of them. 42 U.S.C. § 1997b(a) (1). If you have any questions regarding this letter, please call Shanetta Y. Cutlar, Chief of the Civil Rights Division's Special Litigation Section, at (202)514-0195.
Sincerely,

cc: Timothy B. Howard Erie County Sheriff

S/Loretta King

Loretta King

'J

Acting Assistant Attorney General

Case 1:09-cv-00849-WMS-JJM Document 1-2 Filed 09/30/09 Page 29 of 29
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Robert Koch Superintendent Erie County Sheriff's Department, Jail Management Division Cheryl A. Green County Attorney Erie County Kathleen Mehltretter Acting United States Attorney Western District of New York

 
 Case 1:09-cv-00849-WMS-JJM Document 42 Filed 03/06/10 Page 1 of 11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff, v.
ERIE COUNTY, NY, CHRIS COLLINS,
County Executive, ANTHONY BILLITTIER, IV, MD
County Health Commissioner, TIMOTHY B. HOWARD,
Erie County Sheriff, RICHARD T. DONOVAN,
Erie County Undersheriff, ROBERT KOCH,
Superintendent Administrative Services Division, Jail Management Division, BARBARA LEARY, First Deputy Superintendent, Erie County Holding Center, DONALD LIVINGSTON, First Deputy Superintendent, Erie County Correctional Facility,
Defendants.

DECISION AND ORDER 09-CV-849S

I. INTRODUCTION
Presently before this Court is the Justice Department’s Motion for Expedited Discovery pursuant to Rule 26(d)(1) of the Federal Rules of Civil Procedure.1 The Justice Department seeks limited, expedited discovery to determine whether changes can be made at the Erie County Holding Center (“ECHC”) that would decrease the likelihood of
1
Also pending is the Justice Department’s March 4, 2010 Motion for Leave to File a Supplemental Declaration in further support of its Motion for Expedited Discovery. (Docket No. 41.) That m otion, which includes a declaration advising this Court of the m ost recent suicide at the ECHC on March 3, 2010, will be granted. (Lopez Supplemental Declaration, Docket No. 41-2, ¶ 3.)
1

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preventable suicides and suicide attempts. Briefing on the motion concluded on March 1, 2010. (Docket Nos. 27-30, 32-34, 36-40.)
Due to the Justice Department’s demonstration of good cause and the recurring incidents of suicide and attempted suicide at the ECHC, this Court finds that the requested expedited discovery is both warranted and necessary. The request for expedited discovery will therefore be granted, and the defendants will be ordered to respond to the proffered discovery requests within 14 days of service rather than within the 30 days sought by the Justice Department. The defendants will also be ordered to permit the Justice Department access to the ECHC on March 22 and 23, 2010.
II. BACKGROUND In November 2007, the Civil Rights Division of the U.S. Department of Justice began investigating conditions at the ECHC and the Erie County Correctional Facility (collectively, “the facilities”). At the end of the two-year investigation, the Justice Department notified Erie County through a “Findings Letter” that, in its view, conditions of confinement at the facilities violated the federal constitutional rights of inmates incarcerated there. In particular, the Justice Department expressed its opinion that certain practices — including the failure to provide adequate suicide prevention, medical and mental health care, protection from harm, and safe and sanitary environmental conditions — resulted in Erie County failing to protect inmates from serious harm or the risk of serious harm. Efforts at resolving the Justice Department’s concerns short of litigation failed.
2

Case 1:09-cv-00849-WMS-JJM Document 42 Filed 03/06/10 Page 3 of 11
Consequently, on September 30, 2009, the Justice Department filed suit against Erie
County and various county officials (collectively, “the County”) pursuant to the Civil Rights of Institutionalized Persons Act of 1980 (“CRIPA”), 42 U.S.C. § 1997, et seq.2 The Justice
Department seeks an Order enjoining the County from depriving incarcerated individuals
of their constitutional rights, privileges, and immunities.
The County moved to dismiss the complaint. Briefing and oral argument on that
motion is complete. For reasons that will be fully explained in a Decision and Order to
follow forthwith, the County’s Motion to Dismiss will be denied. In short, this Court finds
that the complaint adequately states a claim under the CRIPA and that the CRIPA is not
unconstitutional as applied to the defendants.
In its complaint, the Justice Department alleges that the County repeatedly fails to
provide adequate mental health and medical treatment to inmates with known or obvious
mental health or medical needs. (Complaint, Docket No. 1, ¶ 23.) As it relates to this
2
Forty-two U.S.C. § 1997a (a) provides as follows: W henever the Attorney General has reasonable cause to believe that any State or political subdivision of a State, official, em ployee, or agent thereof, or other person acting on behalf of a State or political subdivision of a State is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, to egregious or flagrant conditions which deprive such persons of any rights, privileges, or im m unities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm , and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoym ent of such rights, privileges, or immunities, the Attorney General, for or in the name of the United States, m ay institute a civil action in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minim um corrective m easures necessary to insure the full enjoym ent of such rights, privileges, or im m unities, except that such equitable relief shall be available under this subchapter to persons residing in or confined to an institution as defined in section 1997(1)(B)(ii) of this title only insofar as such persons are subjected to conditions which deprive them of rights, privileges, or immunities secured or protected by the Constitution of the United States.
3

Case 1:09-cv-00849-WMS-JJM Document 42 Filed 03/06/10 Page 4 of 11
motion, the Justice Department alleges that the County has inadequate suicide prevention methods, which have resulted in multiple suicides and attempted suicides between 2007 and 2008. (Complaint, ¶ 23(a).) For example, the County allegedly places inmates with known or obvious mental health needs, including suicidal inmates, in cells that contain multiple means for committing suicide. (Complaint, ¶ 23(a).) These allegations are further explained in the Findings Letter attached to the Complaint. (Complaint, Exhibit B.)
In the Justice Department’s view, the ECHC’s suicide prevention policies themselves appear sound. (Findings Letter, Docket No. 1, Exhibit B, p. 9.) But the investigation found that there are “serious problems” with how those policies are implemented and followed, and it concluded that the ECHC’s suicide prevention practices do not comport with generally accepted standards of correctional mental health care. (Findings Letter, p. 9.) It also found that the cells at the ECHC are unsafe and present multiple means for inmates to commit or attempt suicide, including having steel beds, missing wall plates, accessible grab bars, and bars on the windows. (Findings Letter, p.10.) Finally, the Justice Department alleges that the County does not refer inmates who attempt suicide or demonstrate suicidal thoughts or ideation for mental health assessments or further suicide screening. (Findings Letter, p. 11.)
These conclusions are supported by episodic examples: between 2003 and 2009, at least 23 inmates either committed, or attempted to commit, suicide. (Findings Letter, p. 10.) In just one year (2007-2008), there were three suicides and at least ten attempted suicides. (Findings Letter, p. 10.) These incidents involved inmates hanging themselves with bed sheets from air vents, ingesting other inmates’ medications, and jumping from a 15-foot railing in a common area. (Findings Letter, pp. 10-11.) According to the Justice
4

Case 1:09-cv-00849-WMS-JJM Document 42 Filed 03/06/10 Page 5 of 11
Department’s expert witness, Lindsay M. Hayes, ECHC’s suicide rate is nearly five times the national average as determined by U.S. Bureau of Justice Statistics.3 (Hayes Declaration, ¶ 8.)
The Justice Department alleges that these and similar incidents occur because the County is unable to supervise inmates, identify inmates at risk for suicide, correct deficiencies in cells that facilitate suicide, and prevent likely suicide attempts. (Findings Letter, p. 10.) Supporting this conclusion are allegations that some inmates make multiple suicide attempts, that at least one individual was able to commit suicide despite his family warning the ECHC that he could be suicidal, and that suicide attempts are made by inmates who are supposed to be under constant observation.4 (Findings Letter, p. 11.)
And just three days ago, on March 3, 2010, an inmate at the ECHC hanged himself with a bed sheet. (Lopez Supplemental Declaration, Docket No. 41-2, ¶ 3.) This individual reportedly exhibited suicidal tendencies, and the staff of the ECHC was allegedly advised of his past attempts at self-harm and suicide. (Lopez Supplemental Declaration, ¶ 4.)
In the present motion, the Justice Department seeks limited, expedited discovery related to suicide prevention at the ECHC to assess whether it should apply for a preliminary injunction. Specifically, the Justice Department seeks information concerning whether changes to the ECHC’s policies, procedures, or practices would decrease the likelihood of preventable suicides and suicide attempts occurring at the ECHC. The
3
Although the defendants and the County’s attorneys disagree with the manner in which this statistic was arrived at, they have not subm itted any contrary expert testim ony.
4
In November 2007, an inmate at the ECHC allegedly attempted suicide while under constant observation. (Findings Letter, p. 11.) Yet despite this attem pt, ECHC officials allegedly released the inmate into the general population, where he again attempted suicide six days later. (Findings Letter, p. 11.)
5

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request is prompted by there having been three reported suicides by hanging at the ECHC
since oral argument on the County’s Motion to Dismiss, with the most recent occurring on
March 3, 2010, as described above. (Lopez Supplemental Declaration, ¶¶ 3, 5, 6, and
Exhibits A – D.)
As more fully explained in the Declaration of Aaron S. Fleisher (Docket No. 27), the
Justice Department seeks an Order requiring the defendants to respond within 30 days to
the following discovery requests:
(1) Interrogatories seeking information from January 2009 to present relating to suicide prevention staff, inmates who have attempted suicide or are deemed suicide risks, recent suicide policy and practice changes, suicide-safe cells, and suicide screening procedures;
(2) Document requests that seek documents related to suicide prevention policy, mental health and suicide screening, suicide prevention training, suicide and suicide attempt investigations and other categories of documents related to suicides at the ECHC;
(3) Request for Entry and Inspection pursuant to Rule 34 of the Federal Rules of Civil Procedure to allow mental health and suicide prevention consultants access to the ECHC on March 22 and 23, 2010, to (a) tour the relevant portions of the facility accompanied by ECHC staff, (b) inspect the records identified in the Document Requests, and (3) interview inmates outside the presence of ECHC staff.
The County opposes the Justice Department’s motion on the basis that it seeks
discovery and access to individuals that is not authorized by the Federal Rules of Civil
Procedure or permitted under confidentiality laws. In addition, the County argues that there
is no cause for expedited discovery and the Justice Department’s requests are over-broad
and unduly burdensome.
6

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III. DISCUSSION Parties are barred from seeking discovery in the absence of a Rule 26(f) conference, unless discovery is otherwise authorized by a federal rule, a stipulation between the parties, or a court order. See Fed. R. Civ. P. 26(d)(1); Local Rule 26(c) (“[A] party may not seek discovery, absent agreement of the parties or court order, from any source before the parties have met and conferred as required by Federal Rule of Civil Procedure 26(f).”). In this circuit, leave to conduct expedited discovery is granted upon a finding of good cause and reasonableness.5 See Stern v. Cosby, 246 F.R.D. 453, 457 (S.D.N.Y. 2007); Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 326 (S.D.N.Y. 2005). Courts generally assess “the potential prejudice which will be suffered by the defendant if discovery is permitted, and that which will be experienced by the plaintiff if denied the opportunity for discovery at this stage.” OMG Fidelity, Inc. v. Sirius TechTechs., Inc., 239 F.R.D. 300, 305 (N.D.N.Y. 2006). Within that inquiry, the burden of responding to the discovery requests and the likelihood that the proffered discovery will eventually take place must be considered. See OMG Fidelity, 239 F.R.D. at 304-05. Several courts have further found that where an expedited discovery request is made in contemplation of the filing of a motion for preliminary injunction, the denial of that request prejudices the moving party. See Standard Inv. Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., No. 07 Civ. 2014, 2007
5Defendants’ reliance on Notaro v. Koch for the proposition that the Justice Department must dem onstrate irreparable harm to obtain expedited discovery is not persuasive. 95 F.R.D. 403, 405 (S.D.N.Y. 1982). The weight of authority in this circuit rejects the Notaro analysis in favor of the reasonableness or good cause standard, which provides m ore flexibility for the court to order expedited discovery. See, e.g., Stern, 246 F.R.D. at 457; OMG Fidelity, 239 F.R.D. at 303; Ayyash, 233 F.R.D. at 326-27.
7

Case 1:09-cv-00849-WMS-JJM Document 42 Filed 03/06/10 Page 8 of 11
WL 1121734, at *1 (S.D.N.Y. Apr. 11, 2007); OMG Fidelity, 239 F.R.D. at 305. Given the circumstances of this case, this Court has little difficulty finding that the
Justice Department has demonstrated that expedited discovery is warranted. First, this Court finds that the increasing frequency of suicides and suicide attempts
at the ECHC, coupled with the historical allegations in the complaint, constitutes good cause for ordering expedited discovery.
Second, this Court finds that the Justice Department’s discovery requests are narrowly tailored and reasonable. This Court is unpersuaded by the County’s arguments that the discovery demands are over-broad or unduly burdensome. The discovery requested is directed at a limited issue — ECHC’s suicide policies, procedures, and practices — and encompasses just five categories of documents. And even then, the request is limited to only the discovery necessary for the Justice Department to determine whether it should seek a preliminary injunction to impose immediate remedial measures to decrease the number of preventable suicides. (Fleisher Declaration, ¶ 5.) Responding to these demands is not unduly burdensome and is something that the County will have to do shortly in this litigation in any event. Similarly, the Justice Department’s access to the ECHC is not unduly burdensome as County lawyers and representatives may accompany the Justice Department and will be present when County employees are questioned.
Moreover, this Court is unpersuaded by the County’s contention that complying with the Justice Department’s demands would run afoul of confidentiality laws, particularly New York Mental Hygiene Law 3313 and 3316 and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). These provisions do not preclude discovery. The
8

Case 1:09-cv-00849-WMS-JJM Document 42 Filed 03/06/10 Page 9 of 11
Justice Department’s request fits the HIPAA exception allowing third-party disclosure set forth in 45 C.F.R. § 164.512(d) and the Justice Department’s CRIPA claims preempt state confidentiality laws. See, e.g., United States v. Illinois, 148 F.R.D. 587, 591 (N.D. Ill. 1993) (state law preempted); United States v. County of Los Angeles, 635 F. Supp. 588, 594 (C.D. Cal. 1986) (similar).
Third, this Court finds that the balance of prejudice weighs in the Justice Department’s favor. The potential prejudice to the County of having to engage in expedited discovery is low. This Court’s impending denial of the County’s Motion to Dismiss makes discovery in this case certain. Undoubtedly, the proffered discovery demands would be served later in the discovery process anyway, making the County’s eventual obligation to respond to these demands unavoidable. This Court of course recognizes that responding to discovery demands on an expedited basis may require extra manpower and resources, but that is not uncommon when proceedings are expedited. To ease the burden on the defendants, the Justice Department has expressed its willingness to examine voluminous documents on site, and it will not seek materials in the course of discovery that have already been provided on an expedited basis, thereby eliminating any claimed prejudice from duplication. (Fleisher Declaration, ¶¶ 8, 9.)
On the other hand, the prejudice to the Justice Department if expedited discovery is not permitted is palpable and significant. Without this discovery, the Justice Department is unable to adequately assess whether changes can be made at the ECHC that would warrant a request for preliminary injunctive relief to implement those changes in an effort to decrease the likelihood of preventable suicides and suicide attempts. And given the results of the Justice Department’s investigation and the recent and continuing incidents
9

Case 1:09-cv-00849-WMS-JJM Document 42 Filed 03/06/10 Page 10 of 11
of suicide and attempted suicide at the ECHC, there is a good faith basis for the Justice Department’s contemplation of a motion for preliminary injunction. To deny the requested discovery at this stage would deny the Justice Department the benefit of early evidence to develop its motion for injunctive relief. This prejudice outweighs any prejudice the County may experience in having to produce the requested documents on an expedited basis.
IV. CONCLUSION For the foregoing reasons, the Justice Department’s Motion for Expedited Discovery will be granted.
V. ORDERS IT HEREBY IS ORDERED, that the Justice Department’s Motion for Expedited Discovery (Docket No. 29) is GRANTED. FURTHER, that the defendants shall respond to the First Set of Interrogatories (Docket No. 27-2) within 14 days of service. FURTHER, that the defendants shall respond to the First Request for Production of Documents (Docket No. 27-3) within 14 days of service. FURTHER, that the defendants shall respond to the First Request for Entry and Inspection (Docket No. 27-4) within 14 days of service. FURTHER, that the defendants shall permit the Justice Department’s attorneys and consultants to enter and inspect the ECHC on March 22 and 23, 2010, for the purposes stated in the First Request for Entry and Inspection (Docket No. 27-4).
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Case 1:09-cv-00849-WMS-JJM Document 42 Filed 03/06/10 Page 11 of 11

FURTHER, that the Justice Department’s Motion to File a Supplemental Declaration (Docket No. 41) is GRANTED.
SO ORDERED.

Dated:

March 6, 2010 Buffalo, New York

/s/William M. Skretny WILLIAM M. SKRETNY
Chief Judge United States District Court

11

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff, v.
ERIE COUNTY, NY, CHRIS COLLINS,
County Executive, ANTHONY BILLITTIER, IV, MD
County Health Commissioner, TIMOTHY B. HOWARD,
Erie County Sheriff, RICHARD T. DONOVAN,
Erie County Undersheriff, ROBERT KOCH,
Superintendent Administrative Services Division, Jail Management Division, BARBARA LEARY, First Deputy Superintendent, Erie County Holding Center, DONALD LIVINGSTON, First Deputy Superintendent, Erie County Correctional Facility,
Defendants.

DECISION AND ORDER 09-CV-849S

I. INTRODUCTION Presently pending are the parties’ discovery-related motions filed in response to this Court’s March 6, 2010 Decision and Order granting the Justice Department’s Motion for Expedited Discovery. The Justice Department filed a Motion to Compel Defendants’ compliance on March 11, 2010. Defendants filed a Motion for Protective Order on March 12, 2010. Both sides seek expedited treatment of their motions. Briefing concluded yesterday, March 16, 2010.

1

For the reasons that follow, expedited treatment is granted and the motions are granted in part and denied in part.
II. BACKGROUND On March 6, 2010, this Court granted the Justice Department’s request for expedited discovery concerning whether changes can be made at the Erie County Holding Center (“ECHC”) to decrease incidents of preventable suicides and suicide attempts. (Docket No. 42.) The discovery sought included information related to suicide prevention and mental health treatment, as well as entry and inspection of the ECHC to allow suicide prevention and mental health consultants to examine the facility, inspect relevant records, and interview inmates. (Fleisher Declaration; Docket No. 27, ¶ 5; United States’ First Request for Entry and Inspection, Docket No. 27-4.) In granting the Justice Department’s motion, this Court rejected Defendants’ arguments that the Justice Department lacked good cause for expedited discovery, that the requested discovery was over-broad and unduly burdensome, and that the requests ran afoul of state and federal confidentiality laws. This Court granted limited expedited discovery and directed Defendants to respond to the Justice Department’s three sets of discovery requests within 14 days of service. The approved discovery requests included Requests for Interrogatories, Requests for Production of Documents, and a Request for Entry and Inspection. (Docket Nos. 27-2, 273, 27-4.)
2

At issue is the scope of the Justice Department’s Request for Entry and Inspection. In pertinent part, the request seeks the following:
• entry and inspection of the ECHC by Justice Department attorneys and consultants;
• review of requested documents; • examination of the premises for conditions related to mental health treatment
and suicide prevention at the facility; • access to ECHC staff who are able to answer questions about the premises
and processes viewed during the facility inspection; • interviewing of inmates, outside the presence of ECHC staff or defendants’
counsel, on issues of mental health treatment and suicide prevention at the facility. (Docket No. 27-4.) Although Defendants will permit the Justice Department entry to the ECHC and are in the process of producing records, they seek a Protective Order barring any interviewing of County employees or inmates that does not comport with the Federal Rules of Civil Procedure. The Justice Department, on the other hand, seeks an order compelling Defendants to comply with this Court’s March 6, 2010 Decision and Order and the discovery requests as written.
III. DISCUSSION The Justice Department’s request to enter and inspect the ECHC is proper under Rule 34(a)(2) of the Federal Rules of Civil Procedure. Defendants argue, however, that the Justice Department’s additional requests to informally interview County employees and inmates are not authorized by Rule 34 and are barred by Rule 30, which governs depositions. Defendants also seek clarification as to several logistical concerns related to
3

the inspection of the ECHC. A. County Employees
This Court ordered that Defendants allow the Justice Department access to the ECHC on March 22 and 23, 2010, finding that “access to the ECHC is not unduly burdensome as County lawyers and representatives may accompany the Justice Department and will be present when County employees are questioned.” (Docket No. 42.) Access is necessary for the Justice Department’s consultants to examine mental health treatment and suicide prevention conditions at the ECHC, and for them to gain an understanding of related practices and policies. To this end, the Justice Department requests the opportunity to interview inmates and have access to ECHC staff who are able to provide information about the premises and processes viewed during the inspection.
Defendants maintain that informal interviewing of County employees, even with County lawyers present, violates the federal rules because County employees are essentially represented parties in this lawsuit. As such, statements from County employees may be taken only by noticed deposition, in compliance with Rule 30. Defendants also note that the Justice Department has not identified any specific individuals or categories of individuals that it would like to question, beyond the broad request for “staff who are able to answer questions about the premises and processes viewed during the facility inspection.” (Docket No. 27-4.)
Rule 34(a)(2) of the Federal Rules of Civil Procedure authorizes service of a request “to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.”
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Rule 34, like all federal discovery rules, is to be liberally construed. In this Court’s view, permitting consultants entry to the ECHC to examine the suicide and mental health protocols falls within an inspection of an “operation” on property. See Rule 34(a)(2). In Coleman v. Schwarzenegger, for example, the plaintiffs requested site inspections of ten prisons by their experts, including a request that their experts be permitted to interview prison staff. No. CIV S-90-0520, 2007 WL 3231706 (E.D.Cal. Oct. 30, 2007). The defendants objected on the same basis that Defendants do here — that only Rule 30 permits a party to take the testimony of another person. Id. at *1. The court rejected the defendants’ argument and instead held under Rule 34 that “questions by experts directed to prison employees . . . concerning those matters identified in plaintiffs’ inspection requests [which included access to medical and mental health care] are properly included as part of an inspection of “any operation” on the prison facilities to be inspected.” Id. at 2.
This Court agrees with the Coleman court’s construction of Rule 34(a)(2), particularly as it relates to the scope of inspection afforded a consultant or expert to inspect an “operation” on the property. Defendants argue that Coleman is distinguishable because the decision came in the compliance phase of that litigation. This argument is unpersuasive, however, because the phase of the litigation is not material to the court’s construction of what Rule 34 allows. Accordingly, the Justice Department’s consultants shall be permitted to interview or question ECHC and other County employees as necessary during the course of the site inspection on the issues of suicide prevention and mental health processes and procedures. Reasonable access to employees is necessary for the consultants to form an understanding and opinion about the suicide practices and
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protocols at the ECHC. Moreover, there is no danger of prejudice or element of surprise to Defendants because their attorneys are permitted to accompany the consultants and advise County employees as they see fit.
But interviews of County employees by Justice Department attorneys are different. This Court previously held that County attorneys may be present during the Justice Department’s questioning of County employees. But this Court did not consider the precise parameters of the Justice Department’s questioning. The investigative work of lawyers is different from that of consultants or experts. Because County employees are represented by the County Attorney’s office and are arguably defendants in this lawsuit, this Court agrees with Defendants that questioning of County employees by Justice Department lawyers, if any, should be governed by Rule 30 and the other discovery rules.
Consequently, the Justice Department must notice the depositions of individuals or classifications of individuals that it wishes its lawyers to speak with during the inspection period. Depositions may be taken on two days notice before, during, or up to 14 days after the inspection concludes. To eliminate any security concerns stemming from employees being pulled from their posts for depositions, Defendants shall make every effort to have the individuals who are scheduled for deposition available and not working on the date and time their deposition is noticed. Defendants shall also have appropriate accommodations and a stenographer available at the ECHC on March 22 and 23, 2010, at 9:00 a.m., unless no depositions are noticed during that time. B. Inmates
Defendants also argue that the Justice Department’s interviews of inmates should comply with the federal rules and be accomplished by deposition. But the same concern
6

that holds true for County employees does not hold true for inmates: they are not County employees nor are they represented by the County Attorney’s office. Rather, inmates are non-party witnesses, and as such, although the Justice Department could depose them under Rule 30, there is no requirement that it do so. An inmate, like any other non-party witness or potential witness, can be informally interviewed (if willing) by either party. Moreover, requiring that inmates be deposed (or interviewed) in the presence of County attorneys or employees would likely chill their willingness to speak to investigators or to speak candidly. This, of course, defeats the whole purpose of speaking to inmates in the first place.
Defendants further argue that permitting interviews of inmates presents a security concern and will deny the inmates access to their attorneys. But inmates are not entitled to counsel in this context nor are they required to speak to the Justice Department if they would prefer to have their attorneys present. Moreover, to alleviate any security concerns, Defendants are hereby ordered to make appropriate security arrangements for Justice Department personnel to tour, examine, and inspect the ECHC, as well as to interview inmates in an appropriate room with reasonable accommodations where the participants can be seen, but not heard, and without County lawyers or employees present. If additional staff and security are required on March 22 and 23 to accommodate the inspection and interview process, Defendants are ordered to provide it. C. Rule 16 Conference
Defendants request a Rule 16 conference to discuss logistical issues related to the inspection of the ECHC, such as the extent of the document production, the mechanics of the facility inspection, the sharing of information gathered during the inspection, the
7

number of people allowed into the facility during the inspection, and reasonable measures relating to inmate security and safety. The Justice Department does not oppose this request.
Given the expedited time frame, this Court strongly encourages counsel to work together to resolve any further logistical concerns without the need for a Rule 16 conference. Efforts are better spent preparing for the upcoming inspection than preparing for a conference with the Court. Counsel are therefore directed to work in good faith to reach agreement on any remaining issues. If disagreements persist, however, the parties may appear before the Honorable Jeremiah J. McCarthy, United States Magistrate Judge, on March 19, 2010, at 1:00 p.m. for a Rule 16 conference. Judge McCarthy will also be available by telephone on March 22 and 23 should any issues arise during the site inspection that require judicial intervention.
IV. CONCLUSION For the foregoing reasons, the parties’ Motions to Expedite are granted, the Justice Department’s Motion to Compel is granted in part and denied in part, and Defendants’ Motion for a Protective Order is granted in part and denied in part. Defendants are ordered to have the ECHC available for the Justice Department’s inspection beginning at 9:00 a.m. on March 22, 2010.
V. ORDERS IT HEREBY IS ORDERED, that the parties’ Motions to Expedite (Docket Nos. 45, 49) are GRANTED. FURTHER, that the Justice Department’s Motion to Compel (Docket No. 43) is
8

GRANTED in part and DENIED in part, consistent with the foregoing decision. FURTHER, that the Defendants’ Motion for Protective Order (Docket No. 46) is
GRANTED in part and DENIED in part, consistent with the foregoing decision. SO ORDERED.

Dated:

March 17, 2010 Buffalo, New York

/s/William M. Skretny WILLIAM M. SKRETNY
Chief Judge United States District Court

9

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ____________________________________

UNITED STATES OF AMERICA,

Plaintiff, v.

09-CV-849S

ERIE COUNTY, NEW YORK; CHRIS COLLINS, COUNTY EXECUTIVE; ANTHONY BILLITTIER, IV, MD, COUNTY HEALTH COMMISSIONER; TIMOTHY B. HOWARD, ERIE COUNTY SHERIFF; RICHARD T. DONOVAN, ERIE COUNTY UNDERSHERIFF; ROBERT KOCH, SUPERINTENDENT, ADMINISTRATIVE SERVICES DIVISION, JAIL MANAGEMENT DIVISION; BARBARA LEARY, FIRST DEPUTY SUPERINTENDENT FOR ERIE COUNTY HOLDING CENTER; DONALD LIVINGSTON, FIRST DEPUTY SUPERINTENDENT FOR ERIE COUNTY CORRECTIONAL FACILITY,

Defendants. ____________________________________

ORDER APPROVING STIPULATED SETTLEMENT AGREEMENT CONCERNING SUICIDE PREVENTION AND RELATED MENTAL HEALTH ISSUES

Plaintiff, the United States of America, and Defendants, Erie County, et al., have determined that entering into a Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues (“Stipulated Settlement”) (executed by the parties on or before June 18, 2010), rather than contested litigation, is the best way to resolve the United States’ claims regarding suicide prevention and related mental health care.

The Court finds that the Stipulated Settlement (Docket No. 89-2) satisfies the requirements for prospective relief under the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A).
The Court shall retain jurisdiction over this case until the substance of the terms of the Stipulated Settlement are fulfilled and the case is dismissed.
The Court shall have the power to enforce the Stipulated Settlement.
IT HEREBY IS ORDERED, that the United States’ Motion for Entry of the Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues (Docket No. 89) is GRANTED.
FURTHER, that the Stipulated Settlement (Docket 89-2) is APPROVED. FURTHER, that the Stipulated Settlement satisfies the requirements of the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A). FURTHER, that the Court shall retain jurisdiction over this case until the substance of the terms of the Stipulated Settlement are fulfilled and the case is dismissed. FURTHER, that the Court shall have the power to enforce the Stipulated Settlement through all remedies permitted by law.
Dated: June 22, 2010 Buffalo, New York
/s/William M. Skretny WILLIAM M. SKRETNY
Chief Judge United States District Court
2

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff, v.
ERIE COUNTY, NY, CHRIS COLLINS,
County Executive, ANTHONY BILLITTIER, IV, M.D.
County Health Commissioner, TIMOTHY B. HOWARD,
Erie County Sheriff, RICHARD T. DONOVAN,
Erie County Undersheriff, ROBERT KOCH,
Superintendent Administrative Services Division, Jail Management Division, BARBARA LEARY, First Deputy Superintendent, Erie County Holding Center, DONALD LIVINGSTON, First Deputy Superintendent, Erie County Correctional Facility,
Defendants.

DECISION AND ORDER 09-CV-849S

I. INTRODUCTION In November 2007, the Civil Rights Division of the U.S. Department of Justice began investigating conditions at the Erie County Holding Center (“ECHC”) and Erie County Correctional Facility (“ECCF”) (collectively, “the facilities”). At the end of the two-year investigation, the Justice Department notified Erie County through a “Findings Letter” that, in its view, confinement conditions at the facilities violated the federal constitutional rights of inmates incarcerated there. In particular, the Justice

1

Department maintained that due to certain practices — including the failure to provide protection from physical and sexual abuse, failure to provide adequate medical and mental health care, and failure to provide safe and sanitary environmental conditions — Erie County was not adequately protecting inmates from serious harm or the risk of serious harm.
Pre-suit efforts to resolve these concerns failed. Consequently, on September 30, 2009, the Justice Department sued Erie County and various county officials pursuant to the Civil Rights of Institutionalized Persons Act of 1980 (“CRIPA”), 42 U.S.C. § 1997, et seq. The Justice Department seeks to enjoin Defendants from depriving incarcerated individuals of their constitutional rights, privileges, and immunities.
On October 21, 2009, Defendants moved to dismiss the Justice Department’s complaint.1 While that motion was pending, the Justice Department moved for pre-answer, expedited discovery related to suicide prevention protocols at the ECHC. This Court granted that motion on March 6, 2010, and indicated at that time that Defendants’ Motion to Dismiss would be denied in a decision to follow. The parties then engaged in substantial mediation efforts, culminating in several lengthy, in-person sessions in Buffalo, NY, during the week of May 17, 2010. Discussions continued, and on June 22, 2010, this Court approved the parties’ settlement concerning suicide prevention and related mental health issues. 2
1
Defendants filed their Motion to Dism iss on October 21, 2009. (Docket Nos. 13-15.) The Justice Departm ent responded in opposition on Novem ber 23, 2009. (Docket No. 19.) Defendants filed a reply in further support of their motion on December 7, 2009. (Docket No. 21.) This Court held oral argument on December 16, 2009, and reserved decision at that time. (Docket No. 23, 24.)
2This Court commends counsel and the mediator for their considerable efforts.
2

For the reasons stated below, this Court finds that the CRIPA is not unconstitutional as applied to Defendants and that the Justice Department’s complaint, although technically compliant with the federal rules, must be amended to clarify the allegations against each defendant. Defendants’ Motion to Dismiss is denied.

II. BACKGROUND A. CRIPA
The CRIPA authorizes the United States to seek injunctive relief against any state, political subdivision of a state, or official, employee, or agent thereof, whenever the Attorney General has reasonable cause to believe that such party is subjecting institutionalized persons to “grievous harm” caused by “egregious or flagrant conditions which deprive [them] of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,” and that the deprivation is pursuant to “a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities.” 42 U.S.C. § 1997a (a);3 Messier v. Southbury Training Sch., 916 F.Supp. 133, 137 (D.Conn.

3
Forty-two

U.S.C.

§

1997a

(a)

provides

as

follows:

W henever the Attorney General has reasonable cause to believe that any State or political subdivision of a State, official, em ployee, or agent thereof, or other person acting on behalf of a State or political subdivision of a State is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, to egregious or flagrant conditions which deprive such persons of any rights, privileges, or im m unities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm , and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities, the Attorney General, for or in the name of the United States, m ay institute a civil action in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minim um corrective m easures necessary to insure the full enjoym ent of such rights, privileges, or im m unities, except that such equitable relief shall be available under this subchapter to persons residing in or confined to an

3

1996). To remedy unlawful deprivations, the Attorney General may seek “such equitable
relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities.” Id. For persons institutionalized in “a jail, prison, or other correctional facility,” such as here, equitable relief is available to remedy only those conditions that deprive them of their rights, privileges, or immunities secured or protected by the federal Constitution. 42 U.S.C. §§ 1997 (1)(A) and (B)(ii); 42 U.S.C. § 1997a (a).
At the time a CRIPA suit is brought, the Attorney General must personally certify to the court that, at least 49 calendar days before bringing suit, he notified the Governor or other appropriate state official in writing of (1) the alleged unconstitutional conditions and pattern or practice of resistance; (2) the facts supporting those allegations, including the relevant dates or time period, the identity of all persons reasonably suspected of being involved in causing the conditions and pattern or practice; and (3) the date the Attorney General first learned of the allegations. See 42 U.S.C. § 1997b (a)(1).
The statute also requires that the Attorney General set forth his pre-litigation efforts at resolving the matter. The Attorney General must certify that he notified the Governor or other appropriate state official in writing that he intended to start an investigation of an institution and that he provided this notice seven days before beginning the investigation. See 42 U.S.C. § 1997b (a)(2).
institution as defined in section 1997(1)(B)(ii) of this title only insofar as such persons are subjected to conditions which deprive them of rights, privileges, or immunities secured or protected by the Constitution of the United States.
4

The Attorney General must also certify that
(A) the Attorney General has made a reasonable good faith effort to consult with the Governor or chief executive officer and attorney general or chief legal officer of the appropriate State or political subdivision and the director of the institution, or their designees, regarding financial, technical, or other assistance which may be available from the United States and which the Attorney General believes may assist in the correction of such conditions and pattern or practice of resistance;
(B) the Attorney General has encouraged the appropriate officials to correct the alleged conditions and pattern or practice of resistance through informal methods of conference, conciliation and persuasion, including, to the extent feasible, discussion of the possible costs and fiscal impacts of alternative minimum corrective measures, and it is the Attorney General's opinion that reasonable efforts at voluntary correction have not succeeded; and
(C) the Attorney General is satisfied that the appropriate officials have had a reasonable time to take appropriate action to correct such conditions and pattern or practice, taking into consideration the time required to remodel or make necessary changes in physical facilities or relocate residents, reasonable legal or procedural requirements, the urgency of the need to correct such conditions, and other circumstances involved in correcting such conditions[.]
42 U.S.C. § 1997b (a)(2)(A)-(C).
Finally, the Attorney General must certify that he believes that filing suit under
CRIPA “is of general public importance and will materially further the vindication of rights,
privileges, or immunities secured or protected by the Constitution or laws of the United
States.” 42 U.S.C. § 1997b (a)(3).
The Attorney General’s certification is final and not subject to judicial review. United
States v. State of New York, 690 F.Supp. 1201, 1204 (W.D.N.Y. 1988); see also McDonald
5

v. Rivera, No. 9:06-CV-410, 2008 WL 268345, at *10 (N.D.N.Y. Jan. 30, 2008). B. The Justice Department’s Complaint
The Justice Department alleges that Defendants have been deliberately indifferent to the health and safety of ECHC and ECCF inmates, in violation of the Eighth and Fourteenth Amendments, by repeatedly disregarding known or serious risks of harm both at the ECHC, which houses pre-trial detainees, and the ECCF, which houses convicted individuals. (Complaint, ¶¶ 18-20, 28.)
The allegations in the complaint are further detailed in two attachments to it — the Attorney General’s certification (described above) and the “Findings Letter” that the Justice Department sent to the County Executive of Erie County. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); Brass v. Am. Firm Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Fed. R. Civ. P. 10(c). For purposes of Defendants’ Motion to Dismiss, the factual allegations in these documents are accepted as true. See Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008).
The Justice Department alleges a number of failures in the operation of the facilities. First, it alleges that Defendants have repeatedly failed to prevent staff from inflicting serious physical and sexual abuse on inmates and that these failures continue to exist, even in the face of multiple incidents in which inmates have been assaulted. (Complaint, ¶ 21 (a) and (b).) Second, it alleges that Defendants have repeatedly failed to protect inmates from serious harm inflicted by other inmates, despite multiple instances of inmate-on-inmate assault. (Complaint, ¶ 22.) These failures include (1) failing to protect vulnerable or at-risk inmates from physical abuse; (2) failing to protect vulnerable inmates from sexual abuse
6

by other inmates; and (3) failing to implement an inmate classification system that adequately assesses the risk factors for inmate-on-inmate violence. (Complaint, ¶ 23 (a)–(c).)
Third, the Justice Department alleges that Defendants fail to provide adequate mental health and medical services to inmates with known or obvious serious mental health and medical needs. (Complaint, ¶ 23.) In particular, Defendants allegedly provide inadequate suicide prevention and mental health care, inadequate management of medical services and treatment, inadequate administration of medication, and inadequate infection control. (Complaint, ¶ 23(a)–(d).)
Finally, the Justice Department maintains that the physical environment at the ECHC poses an unreasonable risk of serious harm to inmates’ health and safety. (Complaint, ¶ 24.) It further alleges that despite known and obvious risks, Defendants have failed to correct facility maintenance problems that pose a risk of harm to the safety of inmates and staff within the facility and its exterior. (Complaint, ¶ 24.)
Each of these allegations is also detailed in the 50-page Findings Letter attached to the Complaint, which is further discussed below.
III. DISCUSSION Defendants seek dismissal of the Justice Department’s complaint on three grounds. First, they argue that the CRIPA is unconstitutional as applied. Second, they argue that the form of the complaint violates Rules 8 and 10 of the Federal Rules of Civil Procedure. Finally, they contend that the complaint fails to sufficiently state claims upon which relief
7

can be granted. This Court addresses Defendants’ arguments in turn.

A. Constitutionality of the CRIPA

Defendants argue that the CRIPA, though facially constitutional, is unconstitutional

as applied in this case. Their position, however, appears more an objection to the Justice

Department’s enforcement strategy than a pointed challenge to the constitutionality of the

CRIPA.

Defendants first argue that the Justice Department is exceeding its enforcement

authority by seeking imposition of nationalized prison practices or “best practices,” instead

of minimum corrective measures, which is the remedy the CRIPA authorizes. See 42

U.S.C. § 1997a (a). They argue that Congress never intended for the CRIPA to be used

to force state and local institutional facilities to implement the federal government’s

perceived best practices.

But the premise of this argument is faulty: the Justice Department is not seeking

imposition of “best practices.” Rather, the complaint plainly seeks, among other things, an

injunction “requiring Defendants to take such actions as will ensure lawful conditions of

confinement are afforded to inmates at ECHC and ECCF.” (Complaint, Wherefore Clause,

¶ c.) And at oral argument, counsel for the Justice Department disclaimed any notion that

it is seeking imposition of “best practices.” The following exchanges occurred:

The Court:

Where – where in the complaint is the government seeking imposition of best practices? Where? It doesn’t say that. At least my reading, I can’t find it. I mean, I know what you’re arguing.

8

Ms. Green:4
The Court: Mr. Bagenstos:5 The Court: Mr. Bagenstos:

I agree that the complaint itself absolutely does not say best practices. But, assuming arguendo that this Court were to accept the proposition by the government that they’re going to - - that the letter is incorporated into the complaint, and it becomes a sufficient pleading for that purpose, which we don’t concede, that’s where the best practice comes in.
Stay right there. Mr. Bagenstos, what are you - - you know, what - - what are you seeking here? Are you seeking imposition of best practices?
No, your Honor, of course not. What we’re seeking is an injunction to end the constitutional violations at these two facilities. We submit its not a best practice to say, you know, don’t have your guards beat people up in elevators where there is no security cameras, et cetera.
If I remember what you said earlier, you said that what I have by way of discretion to impose here is linked to the minimum corrective measures that are necessary to safeguard the constitutional rights of the imprisoned persons, right?
That’s all we seek, your Honor. What’s at the end of the findings letter is what we believe would be the remedial measures that would resolve and provide a remedy for the constitutional violations. But, of course, that’s up to this Court. We’re simply seeking to prove constitutional violations exist and that this Court needs to do something about them.

4
Ms. Green is counsel for Defendants. 5Mr. Bagenstos is counsel for the Justice Department.
9

The Court: Mr. Bagenstos:
The Court: Mr. Bagenstos:

Is that nationalized prison practices?
Only to the extent that the Eighth and Fourteenth Amendments impose nationwide standards. That’s all we’re seeking.
. . .
Yeah, we talked about that, but you do, for purposes of record, so everybody is clear, you do concede that best practices is not the relief that’s available.
That is correct.

(Transcript of December 16, 2009 Oral Argument, Docket No. 24, pp. 53-55, 57.) Although Defendants may view the remedies suggested in the Findings Letter as
a request for imposition of “best practices,” that is not the relief requested in the complaint. In any event, it is ultimately this Court, not the Justice Department, that will decide the minimum corrective measures, if any, that the Constitution requires. If corrective measures are imposed, it will be because the Justice Department proved the existence of constitutional violations that require correction. The CRIPA is therefore constitutional as applied in this case. See United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 882, 163 L.Ed.2d 650 (2006) (citing cases and noting that Congress has the power under § 5 of the Fourteenth Amendment to create remedies against the States for actual violations of the Fourteenth Amendment).
Defendants next argue that because the facilities operate under the regulatory scheme governing all New York correctional facilities, the Justice Department must sue the State of New York, not Defendants. This argument also fails. Notwithstanding the state rules and regulations that apply to confinement conditions, the CRIPA specifically
10

authorizes the Attorney General to investigate state and local institutions to determine whether federal constitutional violations exist. When the Attorney General has reasonable cause to believe that they do, the CRIPA authorizes him to sue municipalities and individual defendants for redress. See 42 U.S.C. § 1997a (a). Thus, contrary to Defendants’ argument, the Justice Department’s suit against them is plainly authorized by the CRIPA. See id. (permitting the United States to institute a civil action against “any State or political subdivision of a State, official, employee, or agent thereof, or person acting on behalf of a State or political subdivision of a State”). There is no requirement that the Justice Department sue only the State of New York.
Finally, Defendants argue that the CRIPA is unconstitutional as applied because the Justice Department has not specifically identified the policies that are unconstitutional, nor the minimum constitutional standards that apply.6 Defendants argue that by requiring the Attorney General to make several threshold determinations to reach a reasonable cause conclusion, “Congress clearly intended to require the government to articulate with specificity which policies or practices of a facility are unconstitutional, the basis for any such determination, and the minimum corrective measures necessary to cure such policies.” (Defendants’ Memorandum of Law, Docket No. 15, p. 10.) There is simply no support in the statute for this sweeping statement, nor do Defendants fully articulate how this poses a constitutional concern.
6
Interestingly, although Defendants repeatedly deny knowledge of the minimal constitutional standards, they state unequivocally that the standards in New York’s regulatory scheme “far exceed the minimum requirements of the Constitution.” (Defendants’ Memorandum of Law, Docket No. 15, p. 12.)
11

The CRIPA is a standing statute. Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 507-08, 102 S.Ct. 2557, 2563, 73 L.Ed.2d 172 (1982); United States v. Tennessee, 798 F.Supp. 483, 488 (W.D.Tenn. 1992). It permits the Attorney General to institute an action for equitable relief when he has reasonable cause to believe that inmates are being subjected to egregious and flagrant conditions that violate their constitutional rights and that the deprivation is pursuant to a pattern or practice of resistance to inmates’ constitutional rights. See 42 U.S.C. § 1997a (a). By the plain and unambiguous terms of the statute, the elements set forth in § 1997a (a) apply only to the Attorney General’s reasonable cause determination. See United States v. Pennsylvania, 902 F. Supp. 566, 578-79 (W.D.Pa. 1995) (noting that § 1997a (a) contains the elements for the Attorney General’s reasonable cause determination). They are not, as Defendants argue, elements that must be alleged or proven in a CRIPA action.
Congress left it to the Attorney General’s prosecutorial discretion to determine when an action under the CRIPA is necessary to correct constitutional violations. Here, the Attorney General has determined that there is reasonable cause to believe that Defendants are subjecting inmates to egregious and flagrant conditions that are the result of a pattern or practice of depriving inmates of their constitutional rights. Although Defendants vehemently disagree with the Attorney General’s conclusion that a CRIPA action is warranted, this Court is not authorized to look behind it — the Attorney General’s certification is unreviewable. New York, 690 F.Supp. at 1204.
Accordingly, Defendants’ request to dismiss this case on the basis that the CRIPA is unconstitutional as applied is denied.
12

B. The Sufficiency of the Justice Department’s Complaint 1. Rules 8 and 10 of the Federal Rules of Civil Procedure Defendants also argue that the complaint should be dismissed for failure to comply
with Rules 8 and 10 of the Federal Rules of Civil Procedure. Together, Rules 8 and 10 govern the form of general pleadings. Under these rules,
a complaint must contain a “short and plain statement” of jurisdiction and of the claims asserted, Fed. R. Civ. P. 8 (a)(1) and (2); allegations must be “simple, concise, and direct,” Fed. R. Civ. P. 8 (d)(1); claims must be presented in numbered paragraphs and limited, to the extent practicable, to a single set of circumstances, Fed. R. Civ. P. 10(b); and claims based on a separate transaction or occurrence must be stated in a separate count, if doing so would promote clarity, Fed. R. Civ. P. 10(b). Adherence to these rules provides fair notice and facilitates clear presentation of the matters set forth in the complaint. See O’Diah v. New York, No. 08-CV-941, 2010 WL 786271, at *9 (N.D.N.Y. Mar. 2, 2010) (citing Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) and Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005)).
Defendants argue that the complaint should be dismissed because the Findings Letter, which is incorporated into the complaint pursuant to Rule 10 (c), lacks a short and plain statement of the claims and is not separated into numbered paragraphs. It would therefore be unjust and unduly burdensome, Defendants argue, to make them answer or decipher the complaint in its present form. The Justice Department counters that Rule 10 (c) does not require that exhibits to pleadings comport to the general pleading requirements and Defendants should have no difficulty affirming or denying the allegations
13

in the complaint itself. This Court finds that the complaint and its incorporation of the Findings Letter
complies with the technical requirements of Rule 8 and 10. There is no requirement that exhibits attached to a complaint and adopted by reference under Rule 10 (c) contain numbered paragraphs or short, plain statements. And although Rule 10 (c) states that “a copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes,” a defendant is not required to admit or deny the content of an exhibit, as it must the pleading to which the exhibit is attached. See Fed. R. Civ. P. Rule 8(b) (requiring that a party admit or deny the allegations asserted against it by an opposing party in response to a pleading). Rather, this provision pertains principally to assessing the legal sufficiency of the claims in the complaint. See, e.g., Miotto v. Yonkers Public Schs., 534 F.Supp.2d 422, 425 (S.D.N.Y. 2008) (citing Rule 10 (c) and noting that “in assessing the legal sufficiency of a claim, the court may consider only the facts alleged in the complaint, and any document attached as an exhibit to the complaint or incorporated in it by reference); see also Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996).
Nonetheless, while the form of the complaint is consistent with the general pleading standards, this Court finds that it violates the spirit of the rules. Common exhibits to complaints include agency decisions, contracts, patents, correspondence, and the like. In this case, however, the Justice Department has elected to rely on the factually-rich, 50page Findings Letter in further support of its complaint. The Findings Letter contains factual allegations of the sort ordinarily found in the body of a complaint. The Justice Department admitted at oral argument that it was “a deliberate pleading tactic” to simply
14

attach the Findings Letter to the complaint, rather than file a lengthier complaint that included all of the facts contained in the Findings Letter. (Tr. at p. 37.) Although this form of pleading arguably provides adequate notice, it makes it unnecessarily difficult for Defendants to decipher the scope of the allegations underlying each claim.
The Justice Department’s proffered reason for pleading the case in this manner — to avoid limiting its proof — is not persuasive. (Tr. at p. 38.) It appears, rather, that it was simply more expedient for the Justice Department to attach the Findings Letter and accept a denial of the general allegations in the complaint as an answer. (Tr. at pp. 35-37, 40.) This, of course, is of little consolation to Defendants, who are still left to parse the Findings Letter to determine the scope of the Justice Department’s claims against them.
To strike a balance, and in keeping with the spirit of the rules that defendants receive adequate notice of the claims against them, this Court will direct the Justice Department to file an amended complaint that shall include the factual allegations it relies on from the Findings Letter. The Justice Department may again attach the Findings Letter itself, if it sees fit. Defendants’ request to dismiss the complaint as violative of Rules 8 and 10, however, is denied.
2. Sufficiency of the Complaint Rule 12(b)(6) allows dismissal of a complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12 (b)(6). Federal pleading standards are generally not stringent: Rule 8 requires only a short and plain statement of a claim. FED. R. CIV. P. 8(a)(2). But the plain statement must “possess enough heft to show that the pleader is entitled to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007).
15

When determining whether a complaint states a claim, the court must construe it liberally, accept all factual allegations as true, and draw all reasonable inferences in the plaintiff’s favor. Goldstein, 516 F.3d at 56; ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Legal conclusions, however, are not afforded the same presumption of truthfulness. See Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1945 (quoting Twombly, 550 U.S. at 570). Labels, conclusions, or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Facial plausibility exists when the facts alleged allow for a reasonable inference that the defendant is liable for the misconduct charged. Iqbal, 129 S.Ct. at 1949. The plausibility standard is not, however, a probability requirement: the pleading must show, not merely allege, that the pleader is entitled to relief. Id. at 1950; FED. R. CIV. P. 8(a)(2). Wellpleaded allegations in the complaint must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
A two-pronged approach is thus used to examine the sufficiency of a complaint, which includes “any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits.” Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). This examination is context specific and requires that the court draw on its judicial experience and common sense. Iqbal, 129 S.Ct. at 1950. First, statements that are not entitled to the presumption
16

of truth — such as conclusory allegations, labels, and legal conclusions — are identified and stripped away. See Iqbal, 129 S.Ct. at 1950. Second, well-pleaded, non-conclusory factual allegations are presumed true and examined to determine whether they “plausibly give rise to an entitlement to relief.” Id. “Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint fails to state a claim. Id.
a. Municipal and Supervisory Liability Defendants first argue that the Justice Department fails to state a claim because it has not satisfied the pleading requirements for municipal and supervisory liability. Defendants maintain that the municipal and supervisory liability standards for constitutional violations that apply in actions brought pursuant to 42 U.S.C. § 1983 and Bivens also govern suits brought under the CRIPA. See Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388, 396-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Defendants’ view, the Justice Department must allege that the supervisory defendants were personally involved and that their actions caused the alleged constitutional violations, or, for municipal liability, that an official custom or policy of the County caused the alleged constitutional violations. Because no such allegations are contained in the complaint, Defendants contend that it must be dismissed. The Justice Department counters that the § 1983 and Bivens standards cited by Defendants do not apply because this is an action for injunctive relief brought under the CRIPA, not for damages under § 1983. It argues that the CRIPA authorizes injunctive
17

relief “as may be appropriate to insure the minimum corrective measures necessary to insure full enjoyment of [constitutional rights],” which includes injunctive relief against those individuals who have control and authority to implement corrective measures. 42 U.S.C. § 1997a (a). It further argues that Congress’s specific inclusion of “[a] political subdivision of a State, official, employee, or agent thereof” as subject to suit evinces Congress’s intent that CRIPA actions not be subject to the same supervisory and municipal liability requirements as § 1983 and Bivens actions.
The Justice Department correctly argues that the CRIPA itself imposes no “policy or custom” requirement for municipal liability. The statute’s reference to the deprivation of rights being “pursuant to a pattern or practice of resistance to the full enjoyment of such rights” refers not to a municipal liability standard but to specific findings that the Attorney General must make before initiating a CRIPA action. See Pennsylvania, 902 F. Supp. at 578-79 (noting that § 1997a (a) contains the elements for the Attorney General’s reasonable cause determination).
But the Justice Department’s interpretation of other portions of the CRIPA is not correct. It argues that § 1983 liability standards should not apply because the CRIPA authorizes injunctive, not compensatory relief. Under the Justice Department’s construction of the statute, relief is available against any defendant who can effectuate the injunctive relief sought. It argues as follows:
Injunctive relief under CRIPA runs against such parties as are “appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of” the constitutional rights at issue. 42 U.S.C. § 1997a (a). In other words, relief can reach those management-level officials, such as Defendants here, who have control and authority over the subordinates whose unconstitutional conduct caused the
18

Attorney General to file suit, and who can therefore implement corrective measures. (See Justice Department’s Memorandum of Law, Docket No. 19, p. 2.) This position, however, conflicts with the plain language of the statute. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450, 122 S.Ct. 941, 950, 151 L.Ed.2d 908 (2002) (noting that statutory construction begins with the plain language itself). Under the CRIPA, the Attorney General may seek injunctive relief only against a person or entity that the Attorney General has reasonable cause to believe “is subjecting” institutionalized persons to egregious, flagrant conditions that deprive them of their constitutional rights. See 42 U.S.C. § 1997a (a) (emphasis added). Thus, like § 1983, the CRIPA authorizes suit against and relief from only those responsible for the deprivation of rights. See 42 U.S.C. § 1983 (authorizing suit against “[e]very person who . . . subjects, or causes to be subjected” individuals to the deprivation of rights); 42 U.S.C. § 1997a (a) (authorizing relief against “such party” that subjects institutionalized persons to egregious or flagrant conditions that deprive them of their constitutional rights). Nothing in the CRIPA authorizes suits against or relief from those who may simply be in a position to effectuate injunctive relief, as the Justice Department argues. Rather, the CRIPA requires that a defendant be involved in the alleged deprivation of rights. See 42 U.S.C. § 1997a (a). The Justice Department misreads the CRIPA when it represents that the phrase “such party” in the statute refers to a party against whom injunctive relief may run to insure the implementation of minimum corrective measures. (See Justice Department’s Memorandum of Law, Docket No. 19, p. 2.) The statute authorizes the Attorney General to “institute a civil action . . . against such party for such equitable relief as may be
19

appropriate to insure the minimum corrective measures necessary to insure [the full enjoyment of constitutional rights]. 42 U.S.C. § 1997a (a)(emphasis added). Thus, injunctive relief is available against a party that “is subjecting” institutionalized persons to constitutional deprivations, and it is the relief that must be appropriate to insure minimum corrective measures.
Citing § 1997a (a), the Justice Department maintains that equitable relief against only those personally involved in constitutional violations would not be equitable relief “against such party . . . as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of” constitutional rights. (See Justice Department’s Memorandum of Law, Docket No. 19, p. 13.) Use of the ellipsis in this manner is disingenuous because it eliminates the operative “for such equitable relief” language, resulting in a material change to the statutory language. Rather, the phrase “such party” in the statute refers back to “any State or political subdivision of a State, official, employee, or agent thereof, or other person acting on behalf of a State or political subdivision of a State” that is subjecting institutionalized individuals to unconstitutional conditions. 42 U.S.C. § 1997a (a). And “as may be appropriate to insure the minimum corrective measures necessary” describes the equitable relief that is authorized, not who it is authorized to run against.
The Justice Department’s misreading of the statute underlies (and undermines) its ultimate conclusion that “[v]icarious liability was therefore contemplated to be, and is, an essential element of CRIPA litigation.” (See Justice Department’s Memorandum of Law, Docket No. 19, p. 13.) Again, there is no support for this proposition in the statute or caselaw. The injunctive relief the CRIPA authorizes, by the plain terms of the statute,
20

applies only to a party that is subjecting institutionalized individuals to a violation of their constitutional rights. That party may be a state, political subdivision of a state, official, employee, or agent thereof, or any other person acting on behalf of a state or political subdivision of a state. 42 U.S.C. § 1997a (a). Contrary to the Justice Department’s arguments, the CRIPA does not impose vicarious liability or authorize the Attorney General to seek relief against defendants who are not subjecting institutionalized individuals to a deprivation of rights, but who nevertheless have the authority or ability to effectuate injunctive relief. Involvement in the constitutional deprivation on some level is required.
Defendants argue that the correct measure for supervisory and municipal liability under the CRIPA is the § 1983 Monell standard. Section 1983 imposes liability on a municipality when an official custom or policy causes an employee to violate an individual’s constitutional rights. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Like supervisory liability, municipal liability in the context of § 1983 actions cannot be premised solely on a respondeat superior theory, but must be based on constitutional deprivations caused by an officially promulgated, or de facto, governmental “custom” or “policy[.]” Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986).
The existence of municipal policy or custom can be demonstrated in several ways, including: (1) showing an officially promulgated and endorsed municipal policy, Monell, 436 U.S. at 658; (2) showing that actions taken by officials with final policymaking authority caused a constitutional violation, Pembaur, 475 U.S. at 480–81; (3) showing that municipal decisionmaking evidences “deliberate indifference” to the rights of those with whom municipal employees come in contact, including failure to remedy an otherwise
21

constitutional policy so deficient that policymakers knew or should have known with a high degree of certainty that constitutional violations could result, City of Oklahoma City v. Tuttle, 471 U.S. 808, 819, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), or failure to train employees when training is necessary to prevent the violation of federal rights, City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
In this Court’s view, this measure of municipal liability is consistent with the CRIPA’s authorization of injunctive relief against such party that “subject[s] persons” to unconstitutional conditions. Both the CRIPA and § 1983 authorize the initiation of civil actions to redress constitutional violations. Section 1983 creates a private right of action for damages against any state actor who subjects any individual, or causes him or her to be subjected, to the deprivation of constitutional rights. See 42 U.S.C. § 1983. The CRIPA creates a cause of action for the Attorney General of the United States to seek equitable relief against states, political subdivisions of states, or individuals acting on their behalf, that subject institutionalized individuals to a deprivation of rights. See 42 U.S.C. § 1997a (a).
In addition, application of the § 1983 standard for municipal liability is consistent with the purpose of CRIPA actions, which is to allow the Attorney General to remedy patterns or practices of resistance to the full enjoyment of federal constitutional rights. See 42 U.S.C. § 1997a (a). Although the text of § 1997a (a) does not require the Justice Department to prove a pattern or practice, the statute clearly contemplates that CRIPA litigation will involve systemic violations, as opposed to isolated incidents of unconstitutional conduct. Indeed, the Justice Department in this case has sued the County and supervisory officials, not the individual actors directly responsible for the incidents
22

discussed in the complaint and Findings Letter. Moreover, the Justice Department writes that “[e]ffective remedies for systemic constitutional violations require that the facilities’ management-level staff be involved in solving the problems, even when the harm is being caused by non-management employees,” further suggesting that any injunctive relief would be aimed at changing the County’s policies and procedures as it pertains to operating the facilities. (See Justice Department’s Memorandum of Law, Docket No. 19, p. 13.) It is in fact difficult to envision injunctive relief against a municipality — imposed to cure egregious and flagrant deprivations of rights occurring pursuant to a pattern or practice of resistance to the full enjoyment of rights — that would not involve the municipality’s policies or practices.
Finally, the only court to assess what standard of proof applies in a CRIPA action concluded that the § 1983 municipal liability standard applies. In U.S v. Pennsylvania, the Justice Department brought an action under the CRIPA against the Commonwealth of Pennsylvania and officers of the Commonwealth in their official capacities, alleging that they were depriving institutionalized mentally retarded persons at the Ebensburg Center of their constitutional rights, privileges, or immunities. Pennsylvania, 902 F.Supp. at 577. Noting the lack of guiding authority, the court endeavored to settle the elements that must be demonstrated at trial to secure injunctive relief, first rejecting the Commonwealth’s argument that the Justice Department must prove the elements of the Attorney General’s “reasonable cause” determination set forth in § 1997a (a). Id. at 578-79.
Instead, the court concluded that because the CRIPA was enacted to provide standing for the Attorney General to initiate civil rights actions on behalf of institutionalized persons, the elements to be proven at trial are the same as those in any other civil rights
23

action. Id. at 579. Seizing on the fact that the Justice Department sued the defendants only in their official capacities and alleged that they acted or failed to act under color of state law — both of which the Justice Department has also done in this case (Complaint, ¶¶ 8-14, 16) — the court found that, as an “official capacity” suit, it was really one against the government entity. Id. at 579-580 (citing Kentucky v. Graham, 473 U.S. 159, 165, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)). It therefore held that the Justice Department must prove that the government entity’s policy or custom was a “moving force” behind and “played a part in” the alleged deprivations. Id. at 580 (citing Graham, 473 U.S. at 166). Consistent with this finding, the court rejected one of the Justice Department’s claims because “the United States did not even attempt to establish that this [alleged violation] was the result of the Commonwealth’s ‘policy or custom’ as implemented at the Center.” Id. at 596.
Although this Court acknowledges that Pennsylvania is not binding authority, it nonetheless finds it persuasive and consistent with this Court’s reading of the plain language of the CRIPA.
For all of these reasons, it is this Court’s view that the standards for supervisory and municipal liability applicable to § 1983 actions also apply to suits brought by the Attorney General under the CRIPA.
b. Sufficiency of the Allegations in the Complaint Defendants argue that the complaint must be dismissed because it is premised only on legal conclusions and vague, conclusory allegations that do not attribute any unconstitutional conduct or practices to any of the individual defendants or the County of Erie. This argument is at least partially premised on Defendants’ contention that the
24

allegations in the Findings Letter should not be considered part of the complaint for sufficiency purposes. But because this Court is directing the filing of an amended complaint (as discussed above), it is unnecessary at this time to delve into Defendants’ sufficiency arguments. That said, this Court has closely examined both the complaint and the Findings Letter. Suffice it to say that considered together, they well support the Justice Department’s allegations in this case and plausibly give rise to an entitlement to relief. See Blue Tree Hotels, 369 F.3d at 217 (permitting review of documents incorporated or attached to the complaint to examine its sufficiency); Iqbal 129 S.Ct. at 1950. Taken together, the documents present plausible claims under the CRIPA against Defendants for failing to provide inmates protection from physical and sexual abuse, failing to provide inmates adequate medical and mental health care, and failing to provide inmates safe and sanitary environmental conditions Nonetheless, should Defendants’ concerns regarding the sufficiency of the pleading remain after the filing of the amended complaint, the rules permit them to move accordingly. At this time, however, Defendants’ request to dismiss the complaint for failure to state a claim is denied.
3. Leave to Amend District courts have broad discretion to grant a party leave to amend their pleadings and the federal rules dictate that leave to amend should be “freely given when justice so requires.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003); Fed. R. Civ. P. 15(a)(2). Because of this Court’s finding that the form of the complaint violates the spirit of Rules 8 and 10, and in light of the clarification of the proper standard for supervisory and municipal liability, this Court finds it in the interests of justice to direct the Justice
25

Department to file an amended complaint to include the factual allegations from the Findings Letter and allegations to support its supervisory and municipal liability claims.

IV. CONCLUSION For the foregoing reasons, Defendants’ Motion to Dismiss is denied. The Justice Department shall, however, file an amended complaint consistent with this decision within 14 days of the filing date of this Decision and Order.

V. ORDERS IT HEREBY IS ORDERED, that Defendants’ Motion to Dismiss (Docket No. 13) is DENIED. FURTHER, that the Justice Department shall file an amended complaint within 14 days of the filing date of this Decision and Order. FURTHER, that Defendants shall file answers to or otherwise move against the amended complaint within 14 days of its filing. SO ORDERED.

Dated:

July 9, 2010 Buffalo, New York

/s/William M. Skretny WILLIAM M. SKRETNY
Chief Judge United States District Court
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 Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

)

)

PLAINTIFF, .

)

)

v.

)

)

ERIE COUNTY, NEW YORK;

)

CHRIS COLLINS, COUNTY EXECUTIVE; ) Civil No. 09-CV-0849

ANTHONY BILLITTIER, IV, l'-1D, COUNTY )

HEALTH COMMISSIONER;

)

TIMOTHY B. HOWARD, ERIE COUNTY

)

SHERIFF; RICHARD T. DONOVAN,

)

ERIE COUNTY UNDERSHERIFF;

)

ROBERT KOCH, SUPERINTENDENT,

)

ADMINISTRATIVE SERVICES DIVISION, )

JAIL MANAGEMENT DIVISION;

)

BARBARA LEARY, FIRST DEPUTY

)

SUPERINTENDENT FOR ERIE COUNTY

)

HOLDING CENTER; DONALD LIVINGSTON, )

FIRST DEPUTY SUPERINTENDENT FOR

)

------ERTE-CUUl'ifTrCORRECTTONAL-FAC-n:,-r-TY-,-)- - - - - - - - - -----:- -- - - - - - - - - - .

)

DEFENDANTS.

)

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

AMENDED COMPLAINT

PLAINTIFF, THE UNITED STATES OF AMERICA ("Plaintiff"), by its undersigned attorneys, hereby alleges upon information and belief:

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 2 of 39

- 2-

1.

The Attorney General files this Amended

Complaint on behalf of the United States of America

pursuant to the Civil Rights of Institutionalized Persons

Act of 1980 ("CRIPA"), 42 U.S.C. § 1997, to enjoin the

named Defendants from depriving persons incarcerated at the

Erie County Holding Center ("ECHC") in Buffalo, New York,

and the Erie County Correctional Facility ("ECCF") in

Alden, New York, of rights, privileges, or immunities

secured and protected by the Constitution of the United

States.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this action under

28 U.S.C. § 1345.

3. The United States is authorized to initiate this

action pursuant to 42 U.S.C. § 1997a.

4. The Attorney General has certified that all

pre-filing requirements specified in 42 U.S.C. § 1997b have b~en met. 1 The Certificate of the Attorney General is

1

Under CRIPA, a certificate is required at the

commencement of an action: See 42 U.S.C. § 1997b(a)

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 3 of 39
- 3-
appended to this Amended Complaint as Attachment A and is incorporated herein.
5. Venue in the United States District Court for the Western District of New York is proper pursuant to 28 U.S.C. § 1391.
DEFENDANTS 6. Defendant ERIE COUNTY (the "County") is a governmental subdivision created under the laws of the State of New York. The Erie County Sheriff's Office is a division of the Erie County government. The County owns and operates ECHC and ECCF. This action concerns the administration of persons confined at ECHC and ECCF, which house pre- and post-trial detainees. 7. Defendant ERIE COUNTY is the entity charged by the laws of the State of 0ew York with authority to maintain ECHC and ECCF and is responsible for the conditions of confinement and health and safety of persons i~carcerated at ECHC and ECCF. 8. Defendant CHRIS COLLINS is the County Executi~e and serves as the chief administrator of the County

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 4 of 39
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government. County Executive COLLINS is sued in his official capacity.
9. Defendant ANTHONY BILLITTIER, IV, MD, is the County Health Commissioner and is responsible for the daily oversight of health care employees at ECHC and ECCF. County Health Commissioner BILLITTIER is sued in his official capacity.
10. Defendant TIMOTHY B. HOWARD is the Sheriff of Erie County and is responsible for the day-to-day operations of ECHC and ECCF. In his official capacity as Sheriff, he has the custody, control, and charge of ECHC and ECCF and the inmates confined within. Sheriff HOWARD is sued in his official capacity.
11. Defendant RICHARD T. DONOVAN is the Undersheriff of Erie County and is responsible for the day-to-day operations of ECHC and ECCF. In his official capacity as Undersheriff, he has the custody, control, and charge of ECHC and ECCF and the inmates confined within. Undersheriff DONOVAN is sued in his official capacity.
12. Defendant ROBERT KOCH is the Superintendent of ECHC and ECCF and is responsible for the Administration,

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 5 of 39
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Security, and Programs of both facilities. In °his official capacity as Superintendent, he has the custody, control, and charge of ECHC and ECCF and the inmates confined within. Superintendent KOCH is sued in his official capacity.
13. Defendant BARBAP~ LEARY is the First Deputy Superintendent of the Jail Management Division of Erie County and is responsible for the day-to-day operations of ECHC. In her official capacity as First Deputy Superintendent, she has the custody, control, and charge of ECHC and the ECHC overflow annex located at ECCF and the inmates confined within. oFirst Deputy Superintendent LEARY is sued in her official capacity.
14. Defendant DONALD LIVINGSTON is the First Deputy Superintendent of the Jail Management Division of Erie County and is responsible for the day-to-day operations of oECCF. In his official capacity as First Deputy Superintendent, he has the custody, control, and charge of ECCF and the inmates confined within. First Deputy Superintendent LIVINGSTON is sued in his official capacity.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 6 of 39
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15. Defendants are legally responsible, in whole or in part, for the operation and conditions of ECHC and ECCF, and for the health and safety of persons incarcerated in ECHC and ECCF.
16. At all relevant times, the Defendants or their predecessors in office have acted or failed to act, as alleged hereiri, under color of state law.
FACTUAL ALLEGATIONS 17. ECHC and ECCF are institutions within the meaning of 42 U.S.C. § 1997(1). 18. Persons confined to ECHC are pre-trial detainees. 19. Persons confined to ECCF are sentenced inmates, with the exception of pre-trial detainees who are held in the ECHC overflow annex located at ECCF. 20. Defendants are obligated to operate ECHC and ECCF in a manner that does not infringe upon the federal rights of persons confined at ECHC and ECCF, as protected by the Eig~th and Fourteenth Amendments to the Constitution of the United States. 21. Defendants have repeatedly and consistently disregarded known or serious risks of harm to inmates at

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 7 of 39
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ECHC and ECCF, as detailed in the letter issued by Acting Assistant Attorney General Loretta King on July 15, 2009, detailing the investigative findings of conditions at ECHC and ~CCF ("Findings Letter N ), attached as Exhibit B.
22. Defendants have repeatedly failed to take reasonable measures to prevent staff from inflicting serious harm on inmates, even in the face of the obvious and substantial risk that staff will inflict such harm and the multiple occasions on which ECHC and ECCF staff have in fact inflicted such harm. These failures have manifested themselves in the following respects, among others:
a. multiple occasions on which staff have used excessive force on inmates, for example: 1. Erie County Sheriff's Office ("ECSO") deputies have made a practice of taking ECHC inmates on "elevator rides," during which deputies reportedly physically assault inmates, including slamming their heads against the elevator walls;

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 8 of 39
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2. In January 2010, an ECHC inmate was punched in the face by deputies attempting to extract him from his cell for a court appearance. The inmate was diagnosed with a scratched cornea;
3. In April 2009, an inmate was pepper sprayed because he complained to guards about his treatment at the facility;
4. In August 2008, an ECHC inmate was handcuffed, stripped, and cavity searched by a deputy who then used. the same rubber gloves to search other inmates. When the inmate requested that the deputy change his gloves, which were dirty with blood and fecal . matter, the deputy struck the inmate on the head and forcibly performed the search, stating that he ~did not have to do a damn thing";
5. In January 2008, ECSO deputies targeted inmates who were screaming to celebrate

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 9 of 39
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the New Year. In the case of one of the inmates, the deputies punched, kicked, and tied a sheet around the inmate's neck, threatening to hang him. The inmate was then shackled and taken to an isolation cell, where the deputies continued to punch and kick him; 6. In August 2007, during the booking process, ECHC deputies struck a pregnant inmate in the face, threw her to the ground, and kneed her in the side of her stomach. When she informed deputies that she was pregnant, the deputies replied that they thought she was fat, not p~egnant. The inmate lost her two front teeth as a result of the
assault; 7. An ECCF inmate died of a stroke in
March 2007, after suffering a brain injury when ECCF deputies smashed his

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 10 of 39
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head against a wall. The inmate requested medical help following the incident, but was ignored despite noticeable signs of injury (stich as dragging his foot when walking and continually dropping things) ; 8. In April 2006, an ECHC inmate (held in the facility for urinating in,public) was kn.ocked unconscious and sustained a collapsed lung, fractures to six ribs, and a spleen injury (resulting in removal) as a result of a beating by County deputies; and 9. In 2005, a female inmate was severely beaten by booking deputies in an isolation room with no security camera. She suffered two fractured ribs and a punctured lung. b. inadequate protection from harm and serious risk of harm caused by sexually abuSive

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 11 of 39
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behavior between staff and inmates at ECHC and ECCF, for example: 1. On September 16, 2008, a male ECCF
deputy resigned after engaging in inappropriate sexual conduct with a female inmate; 2. On September 9, 2007, a female inmate accused a male deputy of rape. The inmate was sent to the hospital and subsequently moved toa different unit within ECHC; These failures continue. 23. Staff abuse of inmates,exemplified by the incidents in paragraph 22, has resulted from Def~ndants' failure to adopt policies necessary to prevent constitutional violations, including, but not limited to, policies providing operational guidance on staff use of force and policies governing investigations of uses of force, when such policies were necessary to prevent violations of constitutional rights.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 12 of 39
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24. Staff abuse of inmates, exemplified by the incidents in paragraph 22, has resulted from Defendants' failure to adequately train their employees and agents on use-of-force and reporting of such force, among other related areas, when training was and continues to be necessary to prevent violations of constitutional rights.
25. Staff abuse of inmates, exemplified by the incidents in paragraph 22, has resulted from Defendants' failure to adequately supervise and/or discipline their employees and agents when supervision and/or discipline was apd continues to be necessary to prevent violations of constitutional rights.
26. Defendants have repeatedly failed to take reasonable measures to protect inmates against the serious harm inflicted on them by other inmates, even in the face of the obvious and substantial risk that inmates will inflict such harm and the multiple occasions on which ECHC and ECCF inmates have in fact inflicted such harm. These failures have manifested themselves in the following respects, among others:

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 13 of 39
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a. inadequate protection from inmate-on-inmate abuse, including failing to protect vulnerable inmates from harm, such as those who are at risk of harm from other inmates, for example: 1. In April 2010; an ECHC inmate suffered a broken eye socket, jaw, and other facial fractures after being beaten by another inmate. As the inmate stood bleeding, ECHC staff refused to call an ambulance; 2. In late 2009, an ECHC inmate suffered a fractured jaw after being physically assaulted by another inmate; 3. In a period of just over one year, between January 1, 2007 and February 9, 2008, there were over 70 reported incidents of inmate-on-inmate. assaults, including sexual assaults. In many of the incidents of inmate-on-inmate violence, ECSO dep0ties on duty were
-\

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 14 of 39
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not present or were otherwise distracted, giving inmates ample opportunity to fight; 4. On December 11, 2007, an ECHC inmate punched a fellow inmate in the face f'or refusing to stop spitting in the public sink. Both inmates were under the care of the Forensic Mental Health Staff; 5. On June 22, 2007, an.ECHC inmate attacked a fellow inmate, striking him with his fists and forcing him to the floor, immediately after learning his last name, calling him a nrapist" who nkills women." Both inmates were housed on constant observation at the time of the incident; 6. On April 12, 2007, an inmate was grabbed by the throat and punched in
the face by three other inmates, suffering a swollen right eye and left cheek as a result of the attack.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 15 of 39
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According to the County's records, the deputy on duty was taking a "bathroom breakH when the assault occurred; 7. On March 28, 2007, deputies discovered an inmate, who had been in a fight with another inmate, lying on the floor, bleeding from a head wound; 8. On February 2, 2007, an inmate was stabbed with a broken broom handle. The deputy on duty reported that he did not see the assault because he was moving a box into the elevator at the time; and 9. On January 10, 2007, an ECHC inmate attacked a fellow inmate without provocation. According to the incident report, the inmate aggressor was "under
care of Forensic Mental Health, and has a history of unprovoked violent behavior./I

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 16 of 39
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b. ECSO deputies affirmatively place inmates in harm's way by relying on inmates to discipline each other, for example: 1. Deputies have made a practice of openly announcing the charges of alleged sexual offenders, including describing inmates as "Rape-Os," and then leaving the room, allowing the other inmates an opportunity to physically assault the alleged sexual offenders; 2. In 2008, ECSO deputies ordered ~ther inmates to go into the cell of an inmate who refused to s~ower, pull the inmate out of the cell,. strip him and wash him on the floor of the pod· common area with rags and a bucket of water; and 3. Inmates who file substantial grievances have been placed in the area housing gang m~mbers as retaliation.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 17 of 39
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c. inadequate protection from harm and serious risk of harm caused by a failure to protect inmates vulnerable to sexual abuse by other inmates at ECHC and ECCF, for example.: 1. In April 2009, an ECHC inmate was charged with sexually assaulting another ECHC inmate; 2. In August 2008, a 16 year-old boy was placed in the ~bullpen" at ECHC with adults. Placed among an adult population, this vulnerable youth was attacked and sexually assaulted in the middle of the night; and 3. On January 24, 2008, an inmate was sexually harassed and assaulted by three inmates who pulled his pants down, slapped him on the buttocks, called him ~honey," grabbed towards his genitalia in a teasing manner, and grabbed his nipples.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 18 of 39
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These failures continue. 27. Inmate-on-inmate abuse, exemplified by the
incidents in paragraph 26, has resulted from Defendants' failure to adopt policies necessary to prevent constitutional violations, including, but not limited to, policies governing inmate classification and inmate supervision, when such policies were necessary to prevent violations of constitutional rights.
28. Inmate-on-inmate abuse, exemplified by the incidents in paragraph 26, has resulted from Defendants' failure to adequately train their employees and agents on supervision of inmates and proper conflict intervention practices, among other related areas, when training was and continues to be necessary to prevent violations of constitutional rights.
29. Inmate-on-inmate abuse, exemplified by the incidents in paragraph 26, has resulted from Defendants' failure to adequately supervise and/or discipline their employees and agents when supervision and/or discipline was

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 19 of 39

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and continues·to be necessary to prevent violations of constitutional rights.
30. Defendants have repeatedly failed to provide adequate mental health and medical treatment and services to inmates with serious mental health and medical needs that are known or obvious in the following specific respects, among others:
a. inadequate suicide prevention (including the placement of suicidal inmates in cells that . contain multiple means for committing suicide) 2.
b. inadequate mental health care and treatment, including but not limited to failures to take necessary steps to prevent selfinjurious behavior, arrange for critica~ly needed care,and respond to clear signs of mental illness, such as:

2

The suicide prevention aspett of this case, as set

forth in paragraph 23.a. of the original complaint (Docket

No.1), was resolved through a stipulated settlement

between the parties (Docket No. 89-2), which was approved

by the Court on June 22, 2010 (Docket No. 91).

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 20 of 39
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1. Failing to establish treatment plans for inmates with histories of mental illness, including inmates suffering from self injurious behavior and suicidal ideation;
2. Failing to ~imely and accurately assess serious mental health disorders such as schizophrenia and bipol~r disorder;
3. Failing to treat inmates who have either reported a history and use of psychotropic medications and/or affirmatively sought mental health consultation; and
4. Failing to automatically schedule follow-up treatment and counseling f6r inmates suffering from mental illness, instead requiring that the inmate submit a sick call request slip for a follow-up session.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 21 of 39
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c. inadequate mental health care and treatment has resulted in potential serious physical harms, for example: 1. In February 2010, an ECHC inmate mutilated his body with a razor. 2. In January 2010, an ECHC inmate mutilated his body with razor, cutting arms, stomach, and neck. 3. In September 2009, an ECHC inmate starved himself. 4. In September 2009, an ECHC inmate swallowed a spoon while on the forensic unit and later that month swallowed a toothbrush while on constant observation. 5. In July 2009, an ECHC inmate banged his head against the wall. 6. In October 2007, ECHC deputies found an inmate·, who had attempted suicide on a prior occasion, holding a broken light bulb to his neck.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 22 of 39
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7. In September 2007, deputies witnessed an inmate smash his cell window and cut his ar~ with a broken piece of glass.
8. In June 2007, an ECHC inmate verbally threatened self-harm after he flooded his cell and smeared feces on himself and the cell wall.
9. On May 19, 2007, an inmate died of pneumonia brought on by starvation and dehydration after spending f6ur months in ECHC. ECHC staff had ignored the inmate's clear signs of mental illness, such as splashing urine, throwing food, and spreading feces on his face.
d. administration of mental health services lacks substantive quality improvement programs or monitoring procedures that internally assess the quality of health care at the facilities;
e. inmates not initially referred to mental health during intake must rely on the sick

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 23 of 39
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call system to obtain mental health treatment and services, including counseling and medication, resulting in untimely treatment, for example: 1. In February 2010, an ECHC inmate with
post .traumatic stress disorder was not seen for more than a month, despite multiple sick call request slips to mental health. 2. In January 2010, an irimate was admitted to ECMC for hypertension and cardiac arrhythmia and later admitted to the psychiatric service because of a history of depression and suicidal ideation. Despite her mental health condition, the inmate did not receive a mental health or psychiatric assessment upon her return to ECHC, nor was a treatment plan developed to address her mental health and substance abuse concerns.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 24 of 39

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3. As of March 2010, ECHC had not

developed a treatment plan for an ECHC

inmate who has been hospitalized at

ECMC six or seven times since

incarceration in November 2008 for

bipolar, schizophrenia.

f. inadequate management of medical services

and treatment, including, but not limited to

failures to take necessary steps to ensure

appropriate management of medical care, to

arrange for critically needed care, and

respond to clear signs of medical injury,

illness, or harm, for example:

,

! .

1. There are no on-site health care

administrators to manage healthcare

services;

2. There are no quality improvement

programs or monitoring procedures in

place to internally assess the quality

of health care at the facilities; and

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 25 of 39
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3. The facilities employ Licensed Practical Nurses ("LPNN) without the direction or supervision of a registered nurse. In one case, an LPN provided negligent and inadequate medical care, leading to the death of an inmate who suffered from congestive heart failure.
4. In April 2010, ECHC employees resisted calling an ambulance for an injured inmate. The inmate sustained a broken eye socket, a broken jaw and other facial fractures.
5. In March 2010 an ECCF inmate required additional surgery on his left foot aft~r medical staff ignor~d repeated requests for treatment. The inmate's foot was swollen and infected. Reportedly, the nurse on staff inf6rmed the inmate that he could withstand the pain until his release in July 2010.
1
-I

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 26 of 39
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6. In late 2009, ECHC refused to administer medication for. an inmate with a broken neck and back.
7. In July 2008, an ECHC inmate died of hypertension after medical staff failed to administer the inmate's blood pressure medication and monitor her blo6d pressure. Prior to incarceration, the inmate was taking medication that could result in serious side effects when abruptly discontinued. Despite knowledge of this fact, medical staff abruptly discontinued the inmate's medication and failed to appropriately monitor her withdrawal from medication.
8. In April 2008, an inmate was told by a nurse for 60 days that he had a spider bite, ~hich was later diagnosed as MRSA.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 27 of 39
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9. In March 2008, an inmate suffering from a ruptured achilles tendon during recreation was misdiagnosed with a sprain.
10. In November 2007, an ECCF inmate was denied treatment to for a swollen knee that was later diagnosed at another correctional facility as arthritis.
11. In April 2005, an ECHC inmate went two days without insulin despite repeated requests for assistance, resulting in a diabetic coma.
g. inadequate administration of medication, including controlled dangerous substances, resulting from nursing staff being untrained in critical areas of security, accountability, and common side effects of medications, for example: 1. ECHC has an inadequate system for the management of pharmaceuticals, and

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 28 of 39
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controlled substances are not counted at each shift; 2. In 2007, an inmate hoarded his medication for several weeks before deputies located it on his shelf, and another inmate admittedly faked a seizure in order to obtain his prescription medication; 3. . In February 2007, inmate was found to have 38 unidentified pills in a cup in his cell.' h. inadequate infection control, including failing to test timely for Tuberculosis and failing to adequately "treat, contain, and manage infectious diseases such as Methicillin-resistant Staphylococcus aureus. These failures continue. 31. Inadequate medical and mental health care, exemplified by the conditions in paragraph 30, has resulted from Defendants' failure to adopt policies necessary to prevent constitutional violations, including, but not

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 29 of 39
- 29 -
limited to, policies governing assessment and treatment, referrals, medication practices, recordkeeping, staffing levels, and quality improvement, when such policies were necessary to prevent violations of constitutional ri~hts.
32. Inadequate medical and mental health care, exemplified by the conditions in paragraph 30, has resulted from Defendants' failure to adequately tr~in their employees and agents on proper quality of care, medication practices, and recordkeeping, among other related areas, when training was and continues to be necessary to prevent violations of constitutional rights.
33. Inadequate medical and mental health care, exemplified by the conditions in paragraph 30, has resulted from Defendants' failure to adequately supervise and/or discipline their employees and agents when supervision and/or discipline was and continues to be necessary to prevent violatidns of constitutional rights.
34. Defendants have maintained a pervasive physical environment at ECHC that poses an unreasonable risk of serious harm to inmates' health and safety by failing to correct facility maintenance problems that pose a risk of
i
1 ,

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 30 of 39
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harm to the safety of inmates and staff within the facility and its exterior. Defendants have continued to maintain such an environment notwithstanding these known or obvious risks, including the following examples:
a. One inmate was forced to wear dirty cloth~s for twelve days, because ECHC lacked sufficient laundry staff.
b. Inmates have been forced to sleep on metal beds, because no mattresses were available.
c. Shower areas are covered in mold, and cells are infected with insects.
d. Inmates have been denied hygiene products, including razors, soap, toothpaste, feminine products, and toilet paper. Deputies have suggested that inmates requesting additional hygiene products use their shirts instead.
e. Electrical hazards exist that neither correctional officers nor maintenance staff seem to be concerned about, despite the potential for harm being readily apparent.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 31 of 39
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f. Jail staff fail to properly secure sanitation equipment and supplies when not in use, allowing inmates ample opportunity to employ these cleaning supplies as weapons. For example, inmates have used sanitation equipment, like a broom, as weapons. In one case, a broom handle was broken and used to stab another inmate.
g. Due to the dilapidated condition of scores of cells, shower areas, and various dayroom features, inmates have ample material for fabricating weapons, including floor tiles, metal from light fixtures, metal from the ventilation system, glass from cell light bulbs, electrical wiring, and plumbing fixtures. For example:
i. Inmates have been found with shanks of
varying size that are made of broken glass and metal rods. 2. Inmates have also been found with handcuff keys and a syringe, and in

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 32 of 39
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March 2007 an inmate handed deputies a 40-caliber hollow point bullet he found under his cellmate's bed. At the time, both inmates were assigned to a cell designated for constant observation. These failures continue. 35. Unsafe and unsanitary conditions, as exemplified in paragraph 34, have resulted from Defendants' failure to adopt policies necessary to prevent constitutional violations, including, but not limited to, policies governing health and safety, when such policies were necessary to prevent violations of constitutional rights. 36. Unsafe and unsanitary conditions, as exemplified in paragraph 34, have resulted from Defendants' failure to adequately train their employees and agents on proper health and safety practices, among other related areas, when training was and continues to be necessary to prevent violations of constitutional rights. 37. Unsafe and unsanitary conditions, as exemplified in paragraph 34, have resulted from Defendants' failure to adequately supervise and/or discipline their employees and

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 33 of 39
- 33 -
agents when supervision and/or discipline was and continues to be necessary to prevent violations of constitutional· rights.
38. The factual allegations set forth in paragraphs 17 through 37 have been obvious and known to Defendants for a substantial period of time, yet Defendants have failed to adequately address the conditions described.
39. Based upon the factual allegations set forth in paragraphs 17 through 37, Defendants knew or should have known that their policies and/or practices were, and continue to be, deficient enough to result in constitutional violations.
40. Based upon the findings made by entities tasked with reviewing ECHC and ECCF, including the New York State Commission of Correction, the National Commission on Correctional Health Care, and the United States Department of Justice in its Findings Letter in this matter, each of which put Defendants on notice of the deficiencies alleged above, Defendants knew or should have known that their policies and/or practices were, and continue to be, deficient enough to result in constitutional violations.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 34 of 39
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VIOLATIONS ALLEGED 41. The Unit~d States incorporates by reference the allegations set forth in paragraphs 1 through 40 as fully set forth herein. 42. Defendants are,. have been, or should have been, aware of the deficiencies alleged in paragraphs 17 through 37, but have failed to take effective measures to remedy such deficiencies. Such failures amount to deliberate. indifference to the health and safety of ECHC and ECCF inmates, in violation of the rights, privileges, or immunities of those inmates as.secured or protected by the Constitution of the United States. U.S. Const. amend. VIII, XIV. Such deliberate indifference was the cause of the violations of constitutional rights alleged herein. ·43. Defendants exhibit deliberate indifference by failing to adopt policies necessary to prevent constitutional violations, when such policies were and continue to be necessary to prevent the violations of constitutional rights alleged in paragraphs 17 through 37. 44. Defendants fail to adequately train their employees and agents, when training was and continues to be

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 35 of 39
- 35 -
necessary to prevent the violations of constitutional rights alleged in paragraphs 17 through 37.
45. Defendants fail to adequately supervise and/or discipline their employees and agents, when supervision and/or discipline was and continues to be necessary tQ prevent the violations of constitutional rights alleged in paragraphs 17 through 37.
46. Unless iestrained by this Court, Defendants will continue to engage in the acts and omissions set forth in paragraphs 17 through 37, among others, that deprive persons confined in ECHC and ECCF of the privileges or immunities secured or protected by the Constitution of the United States.
PRAYER FOR RELIEF 47. The Attorney General is authorized under 42 U.S.C. § 1997 to seek ~quitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order:
a. declaring that the acts, omissions, and practices of Defendants set forth in paragraphs 17 through 37 above and outlined in the Findings Letter constitute a

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 36 of 39
- 36 -
pattern or practice of conduct that deprives inmates confined at ECHC and ECCF of rights, privileges, or immunities secured or protected by the Constitution of the United States and that those acts, omissions, and practices violate the Constitution of the United States;
b. permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions, and practices set forth in paragraphs 17 through 37 above and outlined in the Findings Letter and requiring Defendants to take such actions as will ensure lawful conditions of confinement are afforded to inmates at ECHC and ECCF; and
c. granting such other and further equitable -relief as it may deem just and proper.

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 37 of 39
- 37 -
Respectfully submitted,

ER, JR. Attorney General of United States

~c:A~L~~
WILLIAM J. HOCHUL, ~R. United States Attorney Western District of New York 138 Delaware Avenue Buffalo, New York 14202

QLGS/
THOMASE. PEREZ Y
Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant
Attorney General Civil Rights Division

Acting Chief Special Litigation Section

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 38 of 39

- 38 -

~ ~CEDO

.

Acting Deputy Chief

Special Litigation Section

ALYSSA C. LAREAU CHARLES W. HART Attorneys Civil Rights Division Special Litigation Section U.S. Department of Justice 950 Pennsylvania Avenue, NW SPL, 601 D Street, Rm. 5426 Washington, DC 20530 (202)305-8702

Case 1:09-cv-00849-WMS-JJM Document 97 Filed 07/23/10 Page 39 of 39
CERTIFICATE OF SERVICE
I hereby certify that on July 23,2010, I electronically filed the foregoing with the Clerk of the District Court, Western District ofNew Yorlc, using its CMlECF system, which would then electronically notify the following CMlECF participants on this case:
Kristin Klein Wheaton Kristin.KleinWheaton@erie.gov Cheryl A. Green cheryl.green@erie.gov And, I hereby certify that I caused the foregoing to be mailed, by the United States Postal Service, first class ,mail, to the following non-CMlECF participants: NONE
Attorneys Civil Rights Division Special ,Litigation Section U.S. Department of Justice 950 PennsylvanjaAvenue, NW SPL, 601 D Street, Rm. 5426 Washington, DC 20530 (202) 305-8702

Case 1:09-cv-00849-WMS-JJM Document 97-2 Filed 07/23/10 Page 1 of 2
EXHIBIT A
i i
--I
[ I

Case 1:09-cv-00849-WMS-JJM Document 97-2 Filed 07/23/10 Page 2 of 2
<@.ffiCt of ~t Afterne!! ~en~rn{
lIifatfqittgtan,E. QT. 20.5.30

CERTIFICATE OF THE ATTORNEY GENERAL

I, Eric H. Holder, Jr., Attorney General of the United States, certify that with regard to the. foregoing Complaint, United States v. Erie County, I have c.omplied with all sUbsections of 42 U.S.C. § 1997b(a) (1). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a) (2). I further certify, pursuant to 42 U.S.C. § 1997b(a) (3), my belief that this action by the United states is of general public impor~ance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution of the United States.

In addition, I certify that I have the "reasonable cause to believe," s~t forth in 42 U.S.C. § 1997a, to initiate this
action. Finally, I certify that all prerequisites to the
ipitiation of this suit under 42 U.S.C. § 1997 have been met.

Pursuant to 42 U.S.C. § 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.

Signed this Washington, D.C.

28th

day of -1S",-,e.:J;p~t"",e""m"""b",,,er,"--_ _ _ _ _ _ , 2009, at

S/Eric H. Holder, Jr.
~-'--t-=~=~-r--~-~-y~~~~~- ~~~ un~tates

42 U.S.C. § 1997

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 1 of 51
EXHl;BIT B

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 2 of 51
u.s. Department of Justice
Civil Rights Division

Office ofthe Assistant Attorney General

Washington, D.C. 20530

The Honorable Chris Collins County Executive Rath Building - 16th Floor, Rm. 1600' Buff~lo, NY 14202
RE: CRIPA Investigation of the Erie County Holding Center and the Erie County Correctional Facility.
Dear Mr. Collins:
We write to report the Civil Rights Division's investigative 'findings of.conditions at the Erie County Holding Center ("ECHC") and the Erie County Correctional Facility ("ECCF"). On November 13, 2007, we·notified then Erie County Executive Joel Giambra that we had initiated an investigation of these facilities pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, which authorizes the Department of Justice to seek remedies for any pattern or practice of conduGt that violates the constitutional rights of incarcerated persons. Initially, we informed Executive Giambra that our investigation would focus on medical care, mental health care, and protection from harm; however, in the course of our investigation, we also became aware of environmental health and sanitation conditions that warrant~d investigation.
We note that, initially, the County of Erie (the "County") cooperated with our investigation, providing the United States with some of the requested documents from January 1, 2007, through March 1, 2008. Specifically, the County provided ECHC incident -reports; some. grievances; state and national corrections reports; and ECHC and ECCF policies and procedures. However, the County did not produce corresponding medical reports, which limited our ability to assess the number and severity of injuries that' inmates suffered following incidents of self-injurious behavior, attempted suicides, actualized suicides, inmate-on-inmate violence, and excessive use of force by staff.

r--'--"-'-.-.- - "". -------"-"-=-

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

r-- ...... -....-... . Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 3 of 51
t
- 2-
Initially, we planned to tour ECHC and ECCF in March 2008, but we re-scheduled our tour. to August 2008 at the County's request; 'due to the appointment of a new County Attorney. In the months leading up to the scheduled August tour, the County broke off all communication with us despite our repeated outreach and offers to meet and discuss the County's concerns. On June 16, 2008, the new County Attorney notified us that the County would no longer cooperate with our investigation. The County refused, and Continues to refuse, to allow us access to the facilities, staff, or inmates.
The County's unreasonable denial of' our request for access is especially troubling, given that inmates committed suicide.on March 31, 2008, and April 30, 2008, well after we' placed the County.on notice that our investigation would review allegations of deficient suicide prevention measures. If the C9unty had agreed to our proposed investigation procedures, County officials ·would have had an early opportunity to work directly with our experts and staff, in an effort to improve conditions at the facilities with the hopes of avoiding such incidents.· They also would have had an opportunity to address any.identified problems on a voluntary, proactive basis at an ea~ly stage of this investigation.
Furthermore, while we strongly disagree with the County's decision to deny us access to the· facilities, the County's denial of our request f.or access ·to Erie County inmates, even during regular visiting hours, is unreasonable and devoid of .any leg.al or penological support. Inmates have a First Amendment right to speak with gov~rnment representatives about the conditions of their confinement and the County has no legitimate penological basis tb deny the inmates access to United States government representatives.
In December 2008, we informed the County of our plans to travel to the County to interview inmates at ECHC and ECCF. The County again denied us access to. ECHC and ECCF inmates. Despite the County's refusal to cooperate, during our December 2008 visit, to the County of Erie, we were able to communicate with a number' of current and recently transferred E'CHC inmates through an arrangement with the United States Marshals Service ("USMS") and various state facilities. 1

1

We appreciate the assistance provided to us by the New

York State Department of Correctional Services and the staff at

the Attica, Orleans, and Wende facilities.

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 4 of 51

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We later learned that the County interviewed some of 'the ECBC inmates with whom we communicated. We were told that these interviews were videotaped, that the inmates were asked what we had spoken to them about, and that they were required to sign a form.2 We stressed to the County that such interviews could be construed as retaliation, which is unlawful under CRIPA, but we were given no assurances that the County would desist from such behavior. Notably, we repeated our offer to meet with the,
County, in order to explain our investigative process, instead of having the County attempt to secure this information from inmates in a manner the inmates might find troubling. Again, our offer was rejected.

By law, our investigation must proceed regardless of whether officials choose to cooperate. Indeed, when CRIPA was enacted, lawmakers considered the possibility that state and local officials might not cooperate in our federal investigation., See H.R. CONF. REP. '96-897, at 12 ,(1980), reprinted in 1980 U.S.C.C.A.N. 832, 836. Such non-cooperation is a factor that may be considered adversely when drawing conclusions about a facility. See id. We now draw such an adverse conclusion. 3

\

Consistent with the statutory requirements of CRIPA, we write to advise you of the findings of our investigation,' the

facts supporting them, and the minimum remedial measures that are

necessary to address the deficiencies we have identified. As

described more fully below, we conclude that the conditions of

confinement violate the constitutional rights of inmates confined

at ECHC and ECCF. In particular, we find that, based on

constitutionally deficient practices, the Erie County Sheriff's

Office ("ECSO"), the Jail Management Division ("JMD") , and the

Erie County Department of Mental Health ("ECDMH"), through the

Adult Forensic Mental Health Clinic, 'fail to protect inmates from

serious harm or'the risk of serious harm.

2 We requested copies of any videotapes from these interview sessions and any forms 'signed by the inmates, but our request was denied by the County.

3

The County's non-cooperation constitutes only one

factor that we consider in preparing our statutory findings and

recommendations. We also have considered the'documentation

provided by the County, reports issued by the National Commission

on Correctional Health Care 'and the New York State Commission on

Corrections, news articles, and interviews with private

attorneys, inmates, and local law enforcement officers.

(
rI .

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 5 of 51

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I. BACKGROUND
A. Facility Description
ECHC is a pre-trial detention center located in Buffalo, New York; ECCF is a correctional facility located in Alden, New York. Both facilities are under th~ authority of Erie County Sheriff Timothy B. Howard, and are managed by the Superintendent of the County's JMD. 4 ECHC is the second largest pre-trial detention facility in New York. ECHC was built to house 680 inmates with the combination of "pod, fI open bay "dorm,'~ and traditional linear-type cells. ECCF was built to house 1,070 convicted prisoners, parole violators, and ECHC overflow inmates. Approximately 23,000 people are processed through the two facilities each year, with a daily population of approximately 1,600. The ECSO provides medical and dental services to both facilities, while the Erie County Department of Mental Health Services, through the Adult Forensic Mental Health Clinic, provides the mental health services for both facil-i ties. 5 ECHC and ECCF inmates. may also be' admitted to the Erie County Medical Center's secure Psychiatric Service Unit, guarded by in-hospital sheriff's deputies .
. B. Legal Standards
CRIPA authorizes the Attorney General to investigate and take appropriate action to enforce the constitutional rights of jail inmates and detainees subject to a pattern or practice of unconstitutional conduct or conditions. 42 U.S.C. § 1997.
When a jurisdiction takes a person into custody and holds him there against his will, the Constitution imposes ,upon the jurisdiction a corresponding duty to assume some responsibility for the inmate's safety and general well-being. County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (citing DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 199-200 (1989)). Generally, county governments must provide persons confined in a jail with.reasonably safe conditions of

4

The.Superintendent of the Holding Center oversees the

Administration, Security,. and Programs of both facilities and

reports directly to the Undersheriff, who reports directly to the

Sheriff .

.' 5

National Commission on Correctional Health Care, Health

Services'Study: Erie County Corrections Facilities ("NCCHC 2008

Erie Reportfl), at 2 (Jan. 10, 2008, revised, Feb. 11, 2008).

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10

' ••••••••••••• M •••• __ M •••••_ _••• _ ••• _M ••_M ••• ••••••

._••• _ ••• _ ...... ,_

• • • ~ . . . . . _ _ _ ~. . . . _ . . . _ • • _._.~ . . . . . . . . . . _ • • • _ . . . . _ _. . . . . . _ _ . . . . . . . . . . . . . . . ._ _ " . . . . . . .

Page 6 of 51

-5-
confinement. See Bell v. Wolfish, 441 U.S. 520 (1979). Specifioally, the Eighth and Fourteenth Amendments require that inmates, both pre- and post-trial, "receive adequate food, clothing, shelter, and medical care." Farmer v. Brennan, 511 U.S. 825, 832 (1994); Benjamin v. Fraser, 343 F.3d 35 (2d. Cir. 2003).
The Eighth Amendment protects prisoners from present, continuing, and future harm. See Helling v. McKinney, 509 U.S. 25, 33 (1993). Prison officials have a duty to protect inmates from harm caused by other inmates and from excessive physical force by correctional staff. See Farmer,' 511 U. S. at 833;, see also, Ayers v.Coughlin, 780 F. 2d 205,209 (2d Cir. 1986). The Eighth Amendment further requires that inmates receive access to adequate medical and mental health care. See Farmer, 511 U.S. at 832; Benjamin, 343 F.3d at 50. Deliberate indifference to the serious medical needs of inmates, including pre-trial detainees, constitutes an unnecessary and wanton inflict'ion of pain contrary to contemporary standards' of decency and violates the Eighth Amendment. See Estelle V. Gamble, 429 U.S. 97, 104 (1976); Koehl V. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) .
The Fourteenth Amendment protects pre-trial detainees from being punished or exposed to conditions or practices not reasonably related to the legitimate governmental objectives. of safety, order, and security. Bell, 441 U.S. at 535-37, 547-48; Benjamin, 343 F.3d at 50. Although the Eighth Amendment does not apply to pre-trial detainees, they "retain at least those constitutional rights . . . enjoyed by convicted prisoners [under the Eighth Amendment]." Bell, at 545; Benjamin, 343 F.3d at 50 ("under the Due Process Clause, [pre-trial detainees] may not be punished in any manner - neither cruelly and unusually nor otherwise"); Weyant V. Okst, 101 F.3d 845 (2d Cir. 1996).
1. Protection From Harm
The Eighth and Fourteenth Amendments forbid excessive physical force against inmates and pre-trial detainees. See Hudson V. McMillian, 503 U.S. 1 (1992), Farmer, 511 U.S. at 832; see also, United States V. Walsh, 194 F.3d 37, 48 (2d Cir. 1999) ("the right of pre-trial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment.") (citing Bell, 441 U.S. at 535 [citations omitted]). This is true even when the use of force does not result in significant injury. Id. A jailor prison official who inflicts force maliciously and sadistically to cause an inmate harm violates the Eighth and Fourteenth

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 7 of 51

- 6-

Amendments. See Livingston v. Griffinr 2007 U.S. Dist. Lexis
36941 r at *30 (May 21r 2007) (citing Hudson r 503 U.S. at 9); Walsh r 194 F.3d at 47-48 (applying Fourteenth Amendment protections to pre-trial detainees in criminal case against
corrections officer accused of violating inmaters constitutional
rights). Courts have "applied the same Eighth Amendment
standards to the deliberate indifference claims of pre-trial' detainees. 1I Patrick v. Amicucci r 2007 WL 840124 r at *3 (S.D.N.Y. Mar. 19 r 2007).

In determining whether excessive force was used r courts examine a variety of factors r including:

"[T]he need for the application of forcer the

relationship between that need and the amount of force

used r the threat reasonably perceived by the

responsible officials r and any efforts made to temper

I

the severity of a forceful response. 1I

I

I !

Hudson~, 503 U.S. at 7-8.

In determining whether conduct rises to the level of a

constitutional violation, the Second Circuit requires that the

"prison official have 'knowledge that an inmate faces substantial

risk of serious harm and disregard [,ed] that risk by failing to

take rea,sonable measures to abate the harm.' II Patrick r

2007 WL 840124 at *3 (citing Lee v. Artuz r 2000 WL 231083 r at *5, (S.D.N.Y. Feb. 29, 2000», quoting from Hayes v. N.Y. City Deprt'

of Corr., 84 F.3d 614 r 620 (2d Cir. 1996) . The Second Circuit also requires that '~an injured inmate '. . . show not' only that he

was exposed to a substantial ~isk of serious harm but also that

the defendant officials acted"with deliberate indifference to his

health or safety.1I Patrick, 2007 WL 840124 at *3 r (citing Farmer r 511 U.S. at 837). Liability arises where an official

knew of and disregarded "an excessive risk to inmate health or

safety [and is both] aware of facts from which the inference

could be dra~n that a substantial risk of harm exists, and he must also draw the inference. 1I Id. Prison officials have been

I

found liable when "they are on notice of a substantial risk of

serious harm to an inmate and fail to take reasonable steps to

-I

protect him [or her]." Id.

i I

,

'

The right to be protected from harm includes the right to be

reasonably protected fr?m constant threats of violence. See

Farmer/ 511 U.S. at 833. This includes protecting inmates from

sexual assault from other inmates and correctional officers. See

Boddie v. Schniederr 105 F.3d 857/ 861 (2d Cir. 1997) (finding

the "sexual abuse of a prisoner by a corrections officer has no

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 8 of 51
· .....~ .····w·• • . .~ _.~ •..•..•.~ __..._._ •..•__ w .. ~_..._.>_ ~_. __.__ .... __._._ .__ ....._ ......... _._..... ..... .. ....... _. _......_...__.......... _.............. ___..•• _ ...................... _ ...._. ______..... .
- 7-
legitimate penological purpose, and is 'simply not part of the penalty that criminal offenders pay for their offenses against society. '") (citing Farmer, 511 U.S. at 834)) i Villante v. Dep't. of Carr., 786 F.2d 516, 522-23 (2d Cir. 1986) (finding inmate stated a cause of action for deliberate indifference where guards failed to protect inmate from sexual threats and abuse by other inmates); Rodriguez v. McClenning, 399 F. Supp. 2d 228, 236-238, (S.D.N.Y. 2005) (finding officer's sexual assault of prisoner constituted'an Eighth Amendment violation) i Noguera v. Hasty, 2001 WL 243535, at ,*2 (S.D.N.Y. Mar. 12, 2001);' Colman v. Vasquez, 142 F.Supp. 2d 226, 237, (D.Conn. 2001).
"
Lastly, "a corrections officer bears an affirmative duty to intercede on behalf of an inmate when the officer witnesses other officers maliciously beating that inmate in violation of the inmate's Eighth [and Fourteenth] Amendment rights. II Jones v. Huff, 789 F. Supp. 526, 535 (N.D.N.Y. 1992) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir: 1988)); see also, Walsh, 194 F.3d at 48 (holding "Hudson analysis is applicable to excessive use of force claims brought under the Fourteenth Amendment. ") . "The duty arises if the officer has a reasonable opportunity to intercede." rd. (citing O'Neill, 839 F.2d at 11).
2. Medical and Mental Health Care
The Constitution requires that prison officials address inmates' serious medical and mental health needs. Estelle, 429 U.S. at 104. Officials act with deliberate indifference when an inmate needs serious medical or mental health care and the officials fail to, or refuse to, obtain or provide that care. Id.; see also, Hathaway v. Coughlin, 37 F. 3d 63 (2d Cir. 1994); Kaminsky v. Rosenblum, 929 F.2d 922 (2d Cir. 1991); Chance v. Armstrong, 143 F. 3d 698 (2d Cir. 198.8). The "deliberate indifference to a prisoner's serious medical needs constitutes the 'unnecessary and wanton infliction of pain'" in violation of the Eighth Amendment. Estelle, at 104 (citation omitted). This includes protecting prisoners whose health problems are "'sufficiently imminent' and 'sure or very likely to cause serious illness and needless suffering in the next week or month or year. '11 Young v. Coughlin, 1998 U.S. Dist. LEXrS 764, at *11 (S.D.N.Y. Jan. 29, 1998) (citing Helling, 509 U.S. at 33) .
The constitutional responsibility to provide minimally sufficient medical care includes treatment of psychiatric or' mental health illnesses. Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir. 1989). Prison officials have an obligation to protect an inmate from self-inflicted injury where the, prison official

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 9 of 51

r
I
--
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knew or had reason to know "of a potential suicide risk to an

inmate..

fI Eze v. Higgins, 1996 WL 861935, at *7 (W.D.N.Y.

1996) (citing Hudson, 468 U.S. at 526-27 -(1984)). Prison

officials act with a deliberate indifference to the risk of

suicide when they fail "to discover an individual's suicidal

tendencies .

[or] could have discovered and have been aware

of the suicidal tendenci~s, but coul~ be deliberately indifferent

in the manner by which they respond to the recognized risk of

suicide.

11 Kelsey v. City of New York, 2006 U.S. Dist.

LEXIS 91977, at *16 (E.D.N.Y. Dec. 18, 2006) (citing Rellergert

v. Cape Girardeau County, 924 F.2d 794, 796 (8th Cir. 1991)).

3. Sanitation

Inmates are constitutionally entitled to environmental conditions that do not pose serious risks to health and safety, including deficient sanitation, inadequate fire safety, inadequate ventilation, and pest infestation. Benjamin, 343 F.3d at 52 (affirming district court findings that "inadequate ventilation, lighting, and exposure to extremes of temperature violated the detainees' constitutional rights") i Harris v. Westchester County Dep't of Corr., 2008 U.S. Dist. LEXIS 28372, at *18 (S.D.N.Y. Apr. 2, 2008) (finding a leaking ceiling an "unsafe prison condition~') .

In the Second Circuit, "challenges by pre-trial detainees \tothe environmental conditions of their confinement are properly reviewed under the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishment Clause of the Eighth. '" Harris, 2008 U.S. Dist. LEXIS at *17, citing Benjamin( 343 F.3d at 49-50. "Where a pre-trial detainee alleges \a protracted failure to provide safe prison conditions, the deliberate indifference standard does not require the detainees to show anything more than actual or imminent substantial harm.'" Harris, 2008 U.S. Dist. LEXIS at *17( citing Benjamin, 343 F.3d at 51 (emphasis omitted). Challenges by sentenced inmates to environmental conditions of confinement, however, are protected by the Eighth Amendment, and in order for an inmate to prevail on an environmental conditions of confinement claim, an inmate must meet the deliberate indifference standard. See Hathawky, 37 F.3d at 66.

II. FINDINGS

The ECSO and JMD's administration of ECHC and ECCF is woefully inadequate and has resulted in a pattern of serious harm to inmates, including death. We find that the County, ECSO( JMD,

_. __ _-_ _ _--_ __ _ .--.----~---...~-.C--a..-s-e-1-:-0...9..._-..c.. v...-...0.._0-_8.._-4- 9_-_W...• '.M'-'-S"--'-J-'J- -M---D-o-c_u.m... e._n---t- .9._-7_...-..3 ._F.-..i_l-e--d_._0... 7/2..3..-/1.0..... P...a. -'g._e.-...1. _..0_.....of 51 ..- ...
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and ECDMH fail to provide adequate suicide prevention; mental health care; medical care; p"rotection from harm; and safe and sanitary environmental conditions. In making these findings, we are cognizant that the County has received similar notice regarding conditions in ECHC and ECCF from the New York State Commission on Corrections ("NYSCC") and the National Commission on Correctional Health Care ("NCCHC") on multiple occasions, but has yet to remedy these issues. 6
A. Inadequate Suicide Prevention
Constitutional requirements mandate the development of suicide prevention standards. These standards require: (1) an appropriate policy and procedure; (2) education and training for all staff members; (3) appropriate screening to assess suicide risk; (4) appropriate housing for those identified as at risk; (5) appropriate supervision, observation, arid monitoring of those inmates so identified; (6) appropriate referrals to mental health providers and facilitiesi (7) appropriate communication between correctional health care personnel and correctional personnel; (8) appropria'te intervention addressing procedures of how to handle a suicide in progress; and (9) appropriate notification, reporting, and "review if a suicide does occur.
ECHC and ECCF's current suicide prevention practices do not comport with generally accepted $tandards of correctional mental health care. Although the policies we reviewed appear sound, it is clear by the number of recent suicides and attempted suicides that there are serious "problems with how the policy is

6

See,~, New York state Commission on Corrections,

Minimum Standards Evaluation - Erie County Jail Management

Division ("NYSCC 2006 Evaluation") (2006); New York State

Commission on Corrections Erie County Holding Center Cycle 2

Evaluation, Apr. 30, 2007 ("NYSCC ECHC Cycle 2 Evaluation Apr.

2007"); New York State Commission on Corrections Erie County

Holding Center Cycle 2 Evaluation, Aug. 6, 2007 ("NYSCC"ECHC

Cycle 2 Evaluation Aug. 2007"); New York State Commission on

Corrections ECHC Phase 2 Evaluation, Apr. 2008; National

Commission on Correctional Health Care, Health Services Study:

Erie County Corrections Facilities ("NCCHC 2008 Er-ie

Report") (Jan. 10, 2008/ revised/ Feb. 11/ 2008); and numerous

letters from the NYSCC to Erie officials, cited throughout.

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 11 of 51

- 10 -

implemented and followed. 7 Moreover, despite a 2008 NCCHC warning, the County continues to house suicidal inmates in unsafe cells that. allow an inmate mUltiple ways to facilitate committing suicide, including: using steel. beds, wall plates removed from the wall, accessible grab bars, and bars on windows. 8 ECHC inmates have exploited cell deficiencies, incorporating them into their 'suicide attempts. Since 2003, at least 23 inmates either committed, or attempted to commit, suicide, or took steps that demonstrated suicidal ideation. Between 2007-2008 there were three suicides and at least ten attempted suicides. Below, we provide examples of the County's inability to supervise inmates, identify inmates at risk for suicide, correct deficiencies in cells that facilitate suicide attempts, and prevent likely suicide attempts.

•

ECHC inmates have committed suicide by hanging

themselves from air vents using bed sheets. In 2008

alone, two inmates died in such a manner, raising the

total to over 15, inmates who have committed, or

attempted to commit, suicide in a similar fashion since

2002.

•

In the past two years, more than five .inmates who

attempted suicide by hanging or self-strangulation were

unsuccessful only because a guard or another inmate

discovered the attempt and cut down the self-made noose

or otherwise removed the fabric from around the

inmate's neck. In one instance, ECHC deputies

discovered a distraught inmate in his cell only after

the rope broke during his attempt to hang himself.

7

For example, the Suicide Prevention Policy requires

that inmates housed in Constant Observation receive

uninterrupted, personal visual observation. Yet, inmates held in

constant observation are still finding ways to hide contraband,

such .as a bullet. Similarly, the policy requires that the

dispensation of psychotropic medication be adequately monitored,

yet one inmate attempted suicide by ingesting another inmate's

medication, while yet another inmate hoarded his medication for

weeks without notice.

NCCHC 2008 Erie Report, supra, n. 5, at lO ("The cells

I

used to house suicidal inmates were not 'suicide-proof.' There

I.

were multiple ways to facilitate committing suicide, including

using the steel beds, wall plates that are lifted from the wall,

handicapped bars, bars on windows, etc. If).

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 12 of 51
/.
I

- 11 -

•

In December 2008, an ECHC inmate attempted suicide by

hanging. This was the inmate's third suicide attempt.

•

In March 2008, an ECHC inmate committed suicide by

hanging, despite a 'warning from the inmate's family

that the inmate could be suicidal.

•

In February 2008, a 17-year-01d ECHC inmate attempted

suicide by hanging. Two other inmates grabbed his legs

and successfully untied the sheets from the bars.

•

In November 2007, an ECHC inmate attempted suicide

while under constant observation. Despite the suicide

attempt, ECHC officials released the inmate into

general population, where he again attempted suicide

six days after his earlier attempt.

•

In May 2007,. ECHC deputies found an inmate unconscious

on the floor of his cell after he attempted suicide by

ingesting a dangerous quantity of another inmate's

quetiapine. 9 Deputies found a suicide note in his

cell, and ECHC documents do not indicate whether the

inmate ever regained consciousness.

•

In January 2007, an ECHC inmate committed suicide in

view of deputies by diving off a 15-foot railing in the

common area. Upon admission to ECHC, the inmate was

reportedly evaluated by forensic staff and determined

not to be a suicide risk.

In addition to suicides and attempted suicides, we found many examples of inmates who engaged in self-injurious behavior, including banging their heads against the wall, cutting themselves with metal and glass objects, and verbally expressing a desire to die. Documentation provided by the County fails to indicate that these inmates were referred for mental health assessments or further suicide screening. Furthermore, despite prior warnings from the NYSCC, the County's facilities provide
ready access to a number of environmental hazards such as screws,
I
--l
/

I
-l I
I. I -I

9

A psychotropic medication used to treat the symptoms of

psychotic conditions such as schizophrenia and bipolar disorder.

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 13 of 51
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- 12 -

nuts r and bolts on chairs that could cause ,injury or be removed and used as a weapon. 10 For example:

•

In October 2007 r ECHC deputies found an inmate r who had

attempted suicide on a prior occasion r holding a broken

light bulb to his neck. ll

•

In September 2007 r deputies witnessed an inmate smash

his ce~l window and cut his arm with a broken piece of

glass .12

•

In June 2007 r an ECHC inmate verbally threatened

self-harm after he flooded his cell and smeared fe,ces

on himself and the ,cell wall. Deputies sent the inmate

for a medical' examination regarding injury to his eye.

There is no indication in the materials provided by the

County that the inmate received any psychiatric

evaluation.

•

In February 2007 r ECHC deputies discovered an inmate

hoarding 38 pills he was to be taking three times each

day to treat high blood pressure. Deputies did not

refer the inmate for a psychiatric evaluation because

the inmate reportedly indicated he did not wish to harm

himself.

The availability of dangerous implements and numerous examples of self-injurious behavior amplify the Countyrs inability to monitor and supervise inmates. The examples also illustrate the Countyrs inability or unwillingness to refer inmates for appropriate mental health treatment., Given the number of suicides and attempted suicides at these facilities r at least five of which occurred following the release, of the NCCHC 2008 Erie Report placing the C,ounty on notice of such issues r it is evident that County officials are deliberately indifferent and have not taken these incidents or the recommendations of the NYSCC and NCCHC seriously.

n. 10 NYSCC ECHC Cycle 2 Evaluation Aug. 2007 r supra r n. 6 r

at 4; NYSCC ECHC Cycle 2 Evaluation Apr. 2007 r supra r

6 r ,at 6.

11 SubsequentlyI this inmate was interviewed by forensic staff r who placed the inmate on constant observation.

12, SubsequentlYr this inmate was interviewed by forensic staff r who placed the inmate on constant observation.

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 14 of 51

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B. Inadequate Mental Health Care
ECDMH fails to provide inmates with adequate mental health care. ECHC and ECCF inmates require mental health assessments and treatment to avoid the unnecessary suffering of acute and chronic episodes of mental illness. Generally accepted correctional mental health care standards require that a physician see an inmate usually before, but clearly shortly after, a prescription for psychotropic medication is written so that the physician can evaluate whether the medication should be maintained and to assess the medication order for proper dosage and effectiveness. Inmates who remain untreated, or who are treated without being seen by a physician, may suffer from a worsening of their symptoms, including suicidal and homicidal thoughts, or from the.potentially lethal side effects of medication. .
An alarming example of .deficient mental health care is the death of inmate Jimmy Roberts. 13 On May 19, 2007, Mr. Roberts died of pneumonia brought on by starvation and dehydration after spending four months in ECHC. ECHC staff ignored Mr. Roberts' deteriorating behavior despite clear signs of mental illness and decompensation, such as splashing urine and spreading feces on his face. The NYSCC investigation of Mr. Roberts' death found that ECHC officials failed to identify Mr. Roberts'·medical condition and take the n~cessary steps to prevent self-injurious behavior. 14 Moreover, the NYSCC cited several incidents that should have alerted the medical staff to Mr. Roberts' decompensation (~, throwing food, rolling ·in feces). NYSCC also· found that despite Mr. Roberts' increasing psychotic behavior, the ECHC physician failed to take any action to arrange for critically needed care. 1S The NYSCC found ECHC's care of Mr. Roberts inadequate, rising to .the level of professional misconduct. 16 The NYSCC concluded that the current medical department at the facility is "incapable of providing medical

I\ .
I I I
I

13 The name "Jimmie Roberts" is a pseudonym.

14 New York State Commission on Corrections, Findings in the Matter of the Death of [Jimmi~ Roberts], Jan. 10, 2008 ("NYSCC [Roberts] Report II ) •

lS

rd. at 6-9.

16

rd. at 6.

[-_.._. _..
I

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 15 of 51

- 14 -
evaluation and treatment" sufficiently to treat inmates who are seriou·slY ill.17
C. Inadequate Protection From Harm
Corrections officials must take reasonable steps to provide "humane conditions" of confinement. Farmer, 511 U.S. at 832. Providing humane conditions requires that a cor~ections system satisfy inmates' basic needs,such as their need for safety. Additionally, jail officials have'a duty to take reasonable steps to protect inmates from physical ~buse.
To ensure reasonably safe conditions, officials must take measures to prevent the unnecessary and inappropriate use of force by staff. Officials must also take reasonable steps to protect inmate~ from violence at the hands of other inmates. In addition, officials must provide adequate systems to investigate incidents of harm, including staff misconduct and alleged physical abuse of inmates. Finally, a jail has an obligation to protect vulnerable inmates from harm, such as those who are at risk of suicide or at risk of harm from other inmates. For the reasons set forth below, ECHC, and ECCF fail to meet constitutional ,standards in all of these regards.
1. Deficient Policies and Proc,edures
a. Overall Content and Structure of ECHC and ECCF's Policies and Procedures
Policies and procedures are the primary means by which jail management communicate their standards and expectations. Thus, policies and procedures should be current, accessible to all correctional officers and staff, and cqnsistent with relevant legal standa~.ds and contemporary correctional practices. Typically, correctional institutions have a uniform policy that governs the Jail Administration. The uniform policy may contain post orders, much like the ECHC Manual 'Contains, that are specific to areas such as intake booking and court hold. Most importantly, however, the uniform policy would provide operational guidance on, inter alia, the use of force, use of restraints, use of chemical agents, suicide prevention, and the grievance process. These uniform policies would be enforced throughout both facilities and all Jail Staff would be trained on one set of operational guidelines. Failure to do so may allow for informal practices to flourish, thus making it difficult to
17 Id. at 7.

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monitor the appropriate application of the institution's governing policies.

ECSO provided us with a copy of the Policies and Procedure Manuals (collectively, the "Manuals") for both ECHC ("ECHC Manual") and ECCF ("ECCF Manual"). The ECHC Manual is dated January 29, 2005, while the ECCF Manual is dated October 7, 2003. A review of the Manuals indicates that many sections are outdated, and many have not been updated in several years. For example" the ECCF use of force policy, Policy 04-09-00 (Physical Force/Corporal Punishment), was last updated in 1991. Similarly outdated are ECCF's suicide prevention screening guidelines, 0903-01, update,d in 1990; restraint policy, 04-09-01, updated in 1997; and grievance policy, 04-11-00, updated in 1999. ECHC policies are similarly dated (i.e., Use of Firearms/Force Report, JMD 04.03.01, updated in 2002; and Contraband Control, JMD 05-0390, updated in 2003). NotablYI in 2004, the ECSO's JMD enacted JMD 02.20.00, requiring,the annual review of JMD Policy and Procedures concerning "Classification, II "Grievance," and "Suicide Prevention." We are unable to determine, based on the doouments that were produced by the County in.February 2008 and the County's continued refusal to cooperate with our investigationl whether the County has reviewed or updated these manuals; the date on the materials we received suggests that they have not. Accordingly, we must assume that they have not been updated.

Moreover, the organization of the Manuals is ~onfusing. It

is our understanding that the ECSO has custodial responsibilities

.J

over both ECHC and ECCF and that the JMD oversees the operation

of the facilities. Given this arrangement, it is unclear why

there are individual, and dissimilar, manuals for ECHC and ECCF.

For example, while the ECCF Manual contains policies on the Use

of Force, the ECHC Manual does not,le and while Spanish-speaking

inmates' at ECHC are not provided a translated Inmate Handbook,

Spanish-speaking inmates at ECCF are. See infra, Section II.C.9.

SimilarlYI it is unclear why there are, different inmate handbooks

for each facility.19 The NYSCC noted this discrepancy in its

April 2008 Jail Evaluation, finding deficiencies in the

disciplinary sanctions of unsentenced inmates who were housed at

ECCF, stating that these inmates who were "transf,erred to the

l8 The ECHC Manual has a Use of Firearms/Force Report Policy, JMD 04.03.01; however, it is less a policy on appropriate uses of force and more a policy on reporting the use of force.
19 ECHC has an Inmate Handbook and ECCF has an Inmate Code of Conduct. See infra, Section II.C.9.

I· ..

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 17 of 51

I
I

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Holding Center for disciplinary reasons were having their

disciplinary hearing at the Holding Center ,"20 subj ect to ECHC's

inmate rule book and not the ECCF inmate rule book. It further

found that the two rule books differed in classes of violations

j.

and sanctions. 21 The NYSCC recommended that JMD "consider developing and implementing a single inmate rule book" for both

facilities. 22

b. Deficient Use of Force Policies and Procedures

While the use of force is sometimes necessary in a correcti.onal facility, the Constitution forbids excessive physical force against inmates. A determination of whether force is used appropriately requires an evaluation of the need for the use of force, the relationship between that need and the amount of force used, the seriousness of the threat reasonably believed to exist, and efforts made to temper the severity of a forceful response. Hudson v. McMillian, 503 U.S. 1, 7 (1992). Generally accepted correctional practices provide that appropriate uses of force in a given circumstance should include a continuum of interventions, and that the amount of force used should not be disproportionate to the threat posed by the inmate. Absent exigent circumst~nces, lesser forms of intervention, such as issuing disciplinary infractions or passive escorts, should be used or considered prior to more serious and forceful interventions. This guidance is typically found ina use of force policy. Failure to provide staff with operational guidance on when the use of force is appropriate is a gross departure from generally accepted correctional standards.

The ECHC's Manual fails to.provide operational guidance on the use of force. In contrast with generally accepted corrections practices, ECHC has no operating policy governing the .application of force at ECHC, and no system in place to monitor the use of force. The ECHC Manual makes several vague references to a "Response Team," apparently utilized to quell emergency inmate disturbarices; however, there is no policy governing the team's assembly. ECHC's use of force and its use of the Response Team, without any operating policies and procedures, fails to

. 20 New York state Commission of Correction ECHC Phase 2 Eva"luation, Apr. 2008, supra, n. 6, at 4.
21
22

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r···· ....- ..._.._......._...........- ................... - ....

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provide inmates with sufficient protection from harm and creates a climate where the unfettered use of force is permissible because there are no operating guidelines holding anyone accountable.

While the ECHC Manual makes several vague references to the

"Response Team," the Manual itself does not provide a policy

describing the composition of this team, how it is assembled, its

purpose and specific use, or how members of this team are

trained, if at all. It is also unclear what the exact purpose of

the Response Team iSj.however, JMD 04.03.01 provides that a use

of force report must be prepared whenever the Response Team is

"required to control an inmate situation wherein force may be

used to quell the situation·." The policy, however, does not

explain what is meant by "control" and "inmate situation," nor

does it discuss the appropriate or permissible uses of force by

the Response Team. See JMD 04.03.01. Moreover, JMD 06.01.02

makes reference to a "secondary response team" that will be

assembled in the event of a riot or hostage situationj again,

limited guidance is given on the compo~lition of this "secondary

response team." See JMD 06.01.02. Employing a special

.

operations team, like the Response Team, that is to be used in

emergency situations without operational guidance as to its

structure and use, is a gross departure from generally accepted

correctional standards ..

Our review of the ECHC Manual did not reveal a Use of Force policy that directs Jail Staff as to when the use of force is appropriate, and what types of force should be used. By contrast, as discussed above, the ECCF manual provides guidance on the use of force, albeit dated. See ECCF Manual, Physical Force/Corporal Punishment, 04.09.00. Whil·e the. ECHC Manual does contain guidance on the planned use of force, Policy JMD. 06.01.03, this policy is strictly limited to planned uses of force initiated by the Quick Entry Team ("QET"). Moreover, this policy is located in the Emergency Preparedness section of the ECHC Manual, further limiting its application to situational necessity . . The ECHC. Manual also contains guidance on the reporting of force j however,. this policy fails to provide operational guidance on when the use of force'itself is appropriate. See ECSO Use of Firearms/Force Report, JMD 04.03.01. The ECHC Manual should provide written operational guidance on what are legally acceptable uses of force, in keeping with Constitutional, federal, and state guidelines, as well as . generally accepted correctional standards. However, the ECHC Manual does not provide aRY language for when the use of force, absent an emergency situation, is permissible.

_ _._-_._ -_._ _ --_._. Case 1:09-c.•..v....-•.0.....0. _8._.4... 9-W......M......S....-...J...J...M..... ....D.....o•..c-..-u..m....e..n...t...9..7...-.3.......F...i.l.e..d....0...7../..2..3.../.1...0......P...a...g...e....1.9 of 51

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2. Excessive Use of Force

Our investigation revealed that inmates at ECHC and ECCF are regularly subjected to inappropriate, excessive and degrading uses of physical force. The following are illustrative examples:

•

Inmates we interviewed consistently reported that ECSO

deputies would take ECHC inmates on "elevator rides,"

during which deputies would. reportedly physically

assault inmates. Inmates consistently described

incidents in which deputies would take handcuffed

inmates to an isolated elevator (which was not equipped

with a security camera) where they would be beaten and

. had their h~ads slammed against the elevator walls.

•

In August 2008, an ECHC inmate was handcuffed,

stripped, and cavity searched by a deputy who then used

the same rubber gloves to search other inmates. When

the inmate requested that the deputy change his gloves,

which were dirty with blood a·nd fecal matter, the

deputy struck the inmate on the head and forcibly

performed the search, stating that he "did not have to

do a damn thing."

•

In 2008, according to inmate interviews, ECSO deputies

. ordered other inmates to go into the cell of an inmate

who refused to shower, pull the inmate out of the cell,

strip him and wash him on the.floor of the pod common

area with rags and a bucket of water.

.

•

In January 2008, ECSO deputies reportedly targeted

inmates who were screaming as a result of the New Year.

Inmates told us that, in the case of one of the

inmates, the deputies punched, kicked, and reportedly

tied a sheet around the inmate's neck, threatening to

hang him. The inmate was then shackled and taken to an

isolation cell, where the deputies continued to punch

9.-nd kick him.

•

In August 2007, during the booking process, ECHC

deputies struck a pregnant inmate in the face, threw

her to the ground, and kneed her in the side of her

!
! .

stomach. When she informed deputies that she was

pregnant, the deputies allegedly replied that they

thought she was fat, not pregnant. The inmate lost her

two front teeth as a result of the assault.

~ I r

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 20 of 51

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•

An ECCF inmate died of a stroke in March 2007, after

suffering a brain injury when ECCF deputies smashed his

head against a wall. The inmate requested medical help

following the incident, but was ignored despite

noticeable signs of injury. (dragging his foot when

walking and continually dropping things) .

•

In April 2006, an ECHC inmate (held in the facility for

urinat.ing in public) was knocked unconscious and

su~tained a collapsed lung, fractures to six ribp , and

a spleen injury (resulting in removal) as a result of a

beating by County deputies. The inmate alleges that

the incident arose from his attempt to air out his cell

from the odor of other inmates' defecation and vomit.

3. Inadequate Reporting of Use of Force

Effective measures to prevent excessive and inappropriate uses. of force include the adequate reporting of information to permit the identification of potential problem cases and effective internal investigations. We find that ECHC fails to elicit adequate information about use of force incidents,making management review ineffective. Generally accepted correctional standards require written reports of uses of force. These reports should be submitted to administrative staff for revi~w. Although the County of Erie produced incident reports for EeHC, it did not produce any of the use of force forms that reportedly accompany these reports. The incident reports themselves indicate whether a use of force report was filed under the "Action Taken" section of the Incident Report. While most of the incident reports where force was used indicated that a use of for.ce form was submitted, there were several incidents where force was clearly used, but the submission of a use of force form was not indicated. For example:

•

An October 2007 report indicates that two deputies were

injured subduing an inmate who attempted to strike a

deputy. While the report indicates that the deputies

secured the inmate on the floor with handcuffs, there

is no indication what type or level of force the

deput"ies· used to achieve compliance.

•

Similarly, a September 2007 incident report describing

an incident in which two deputies were inj~red subduing

an inmate who struck a deputy, indicates only that the

deputies took the inmate to the· ground and secured him

in handcuffs. There is no indication what type or

level of force the.deputies used to achieve compliance.

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 21 of 51

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assaults, including sexual assaults. In many of the incidents of inmate-on-inmate violence, ECSO deputies on duty were not present, giving inmates ample opportunity to fight. The following examples are illustrative:

•

On December 11 2007 1 an inmate was held down by another

inmate and punched and kicked by a third inmate. The

victimized inmate indicated that he was attacked

because he was held on sodomy charges.
I I

•

On April 121 2007 1 an inmate was grabbed by the throat

and punched in the face by three other inmates 1

suffering a swollen right eye and left cheek as a

result of the attack. According to the County/s

records 1 the deputy on duty was taking a "bathroom

breakll when the assault occurred.

•

On. March 2BI 2007 I' deputies discovered an inmate 1 who

had been in a fight with another inmate 1 lying on the

floor, bleeding from a head wound.

• On February 21 2007, an inmate was stabbed with a broken broom handle. The deputy on duty reported that he did not see the assault because he was moving a box into the elevator at the time.

•

On January 24, 2008, an inmate was se'xually harassed

and assaulted by three inmates who pulled his pants

down, slapped him on the buttocks 1 called him "honey', /I

grabbed towards his genitalia in a teasing manner 1 and

grabbed his nipples. There is no indication from this

incident report whether any of the aggressors were

disciplin~d for their actions.

ECSO deputies do not appear to consistently intervene to

stop inmate violence, There have been severa.l incidents in which

deputies either watched an altercation escalate from a verbal

disagreement to ~ physica~ altercation l or allowed other inmates to break up a fight and detain the inmates until additional

deputies arrived. For example:

.

.

•

On November 26, 2007 1 a deputy witnessed an inmate

throw a chair across the law library at another inmate

because he thought the other inmate was a "snitch,/I

•

On November 19, 2007 1 a deputy witnessed two inmates

arguing and then fighting., He also witnessed a third

inmate join the fight and punch and kick another inmate

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 22 of 51
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• An August 7, 2007 report indicates that an ECHC inmate who struck a deputy was secured by the response team, placed in mechanical restraints, and put into an isolation cell. However, there is no information on the force used ,to secure the inmate or the length of time he was restrained, nor is there any indication whether medical clearance was secured before the inmate was placed in restraints.
JMD's failure to ensure complete use of force reporting prevents adequate monitoring of the use of force within its facilities. As a result, the ECSO is unable to accurately gauge the amount of force used and whether such force is appropriately used.
4. Inadequate and Ineffective Inmate Supervision
a. Deputy-Encouraged Violence
ECSO deputies n9t only fail to protect inmates from, harm, but, as our investigation revealed, they affirmatively place inmates in harm's way by pitting inmates against one another in combat. We have received reports of ECSO deputies relying on inmates to discipline other inm'ates with force. These inmates, sometimes referred to as the deputies' "pet," receive ,extra privileges, such as extra meals and hygiene products. Alarmingly, we hav'e learned of ECSO deputies harassing inmates charged with a s,exual offense. We have received numerous reports of deputies openly announcing the charges of alleged sexual offenders, including describing inmates as "Rape-Os." Deputies would reportedly ,announce an inmate's charge in the presence of other inmates and then leave the room, allowing the other inmates an opportunity to physically ass,ault the alleged sexual offender.
b. Inmate-an-Inmate Violence
Insufficient inmate supervision is a serious problem at ECHC and ECCF. The County i.s,well aware of this issue. Undersheriff Brian D. Doyle has publicly stated that ECHC does not have sufficient "security staff."u Indeed, our review of the County's own incident -reports confirms 'this admission. Incident reports revealed ,that between January 1, 2007 and February 9, ,2008, there were over 70 reported incidents of inmate-on-inmate
23 Gene Warner, Inmate Well-Being Comes Under Scrutinv; Medical Care Limited at County Facilities, Buffalo News, Aug. 5, 2007.

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in the head. There is no indication in the report whether this deputy attempted to break up the fight or even intervened during the argument, before it escalated to a fight.

•

On October 30, 2007, a deputy witnessed an inmate

strike another inmate who had been knocked to the

ground. When the attacking inmate refused the deputy's

order to stop fighting, two other· inmates interceded to

restrain the attacker until additional deputies arrived

on tl).e scene.

As the incident reports demonstrate, and as our interviews consistently confirmed, inmates who are not adequately supervised have opportunities to engage in fights. The situation in the County facilities appears so volatile that minor slights appear to instigate physical altercations. We noted numerous instances in which inmates fought one another for inconsequential reasons ,. such as: one inmate denied another inmate access to a newspaper, an inmate cut ahead of another inmate in the lunch line, and one inmate told another inmate that he had "smelly feet." Each of these exchanges led to fights among inmates. As the above examples demonstrate, ECSO and JMD are not meeting constitutional obligations to provide for the safety and well-being of inmates.

c. Unprofessional and Provocative Attitude Towards Inmates

Establishing a professional environment in a correctional setting is critical to maintaining the safety and security of inmates and staff. In addition to reports that deputies have encouraged inmate violence, we have also learned that deputy supervisors at ECCF have permitted a culture of unprofessional and provocative attitude towards inmates to flourish within the facility.24 .

Notably, in June 2008 the NYSCC cited ECCF Jail staff for "unprofessional and provocative attitude toward the inmate population,,25 for posting informational sheets labeled "Frequently Asked Questions" within the dormitories housing pre-trial detainees that contained such comments as "Deputies are here to tell you what to dOi"· "Deputies decide when you go to

24 Letter from NYSCC to Sheriff Timothy Howard, dated June 5, 2008, Cycle 3 Evaluation, at 12.
25

r'

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 24 of 51

••• _ ••••••••••••••••- . .

..', . . . . . . . p- • -

._-

• • • • _ _ • , ' . - , •• - " " " - - - ' " . . . . . . . . ._ - - • • • • • _ - • • • _ - • • • • • • • • • • _ _ . -. . . . . . . . . . " "

- •• ,----.-.-.- •••••• _ - - - _ . _ ..........- - •••••••- •••• , •••_-._ •••••••••••••• " ' , ••••••

'"

•••• - ••••• ,' ••

- 23 -
exercise;1I26 and "How do you become a Lima unit porter? Don't ask we will ask you. 1127 The NYSCC found these sheets to be unprofessional and that ECSO should view these statements "as an embarrassment to the corrections profession. 1I28 Moreover, the NYSCC found that the "condescending tone ... perpetuates a negative work environment,"29 and the failure of "deputy sheriff supervisors '" to remove such posting and take further action is unconscionable. 1130 These" informational sheets, II coupled by the reports of deputy encouraged violence (see Section II.C.4.a, supra) and sexual misconduct (~Section II.C.6, infra) further illustrates a culture that undervalues the safety and well-being of inmates housed within its facility. Indeed, a condesc.ending att'itude towards an inmate population may lead security staff to believe that they have an unfettered control over inmates that allow them to engage in unconstitutional behavior, such as encouraging inmate violence and engaging in inappropriate sexual conduct with inmates.
d. Inadequate Division of Supervisory Responsibility
EceF houses both pre- and-post-trial inmates. ECSQ employs two separate work forces to supervise "unsentenced" and "sentencedll inmates aj:. ECCF. Specifically, deputies are assigned to "unsentenced inmates,lI while correctional officers are assigned to "sentenced inmates. 113l The NYSce found this arrangement "jeopardizes the safety and security of staff and inmates at the Correctional Facility."32 According to NYSCC, .because the security staff are members of two distinct unions, based on their' work assignment, there is confus'ion over which union or security detail has specific control over a particular inmate. Indeed, NYSCC's staff "witnessed members of both unions

26 Id.

27

Id.

28 Id.

29 .Id.

30

Id.

31

Id.

32 Letter from NYsee to Sheriff Timothy Howard, dated ·June 5, 2008, Cycle 3 Evaluation, at 11.

r--·_···__··_C_·a_·_s·_e···1··:.0..9._-.c. v_.-._0..0..8..4.. 9_.-._W....M....S...-..J..J-M. . . . Document 97-3 Filed 07/23/10 Page 25 of 51
i
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openly debating and arguing [over] which union has authority over an inmate."33 The NYSCC further noted that each work force has' different break schedules and different work hours, uaffect[ing] the lock-in time of inmates during the count." Moreover, while both work forces are uaccountable to the Chief and Superintendent of the Correctional Facility," Ueach union member is only accountable to the supervisors in t'heir respective unions. "34. Accountability and supervisory responsibility was a noted problem where, for example, Uduring evening, 'nigp,ts, and weekends" the highest ranking employee for deputies "is a Sergeant" whereas the highest ranking corrections officer is Uthe' Tour Commander ."35 This confusion in supervisory responsibilities amplifies the deficiencies in inmate supervision.
5. Inadequate Classification
ECHC and ECCF have an inadequate classification system, and it contributes to unsafe conditions at the facilities. Generally accepted correctional standards require 'separation of problematic inmates and those who are more vulnerable to violence and abuse from the general population. ECHC and ECCF's failure to do so makes supervision more difficult and increases the risk of harm to both staff and inmates.
The County's classification system is flawed and fails to adequately assess critical factors such a.s an inmate's criminal history while in custody, escape history, and likelihood of victimization. While the County's classification instrumerit does identify these 'areas, the JMD fails to provide operational guidance on how to address such issues. As the NYSCC noted, this is a major concern because the classification instrument influences how inmates are classified at ECHC and ECCF; Uthe quality of any classification determination and subsequent housing assignment is suspect" because uclassification reviews and housing assignments are substantially based on outcomes of a flawed classification system. ,,36 While officials at ECHC and ECCF cannot be expected to. prevent all altercations between inmates, the Constitution requires correctional officers and County officials to take reasonable steps to protect inmates
33
34
35
36 NYSCC 2006 Evaluation, supra, n. 6, at 2l, 24.

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from violence. Disturbingly, the County was made aware of the inadequacies of its classification through an April 2007 NYSCC report, followed by an August 2007 NYSCC report indicating that the issues remained unaddressed. 37

As an example of the problems that an inadequate classification system can lead to, we learned of a situation in August 2008 in which a 16 year-old boy was reportedly placed in the "bullpen" at ECHC with adults. Placed among an adult population, this vulnerable youth was reportedly attacked and sexually assaulted in the middle of the night.

6. Sexual Misconduct

Our review of investigative reports revealed incidents of sexual misconduct at ECHC and ECCF resulting from staff-on-inmate and inmate-on-'inmate interaction. For example:

•

On September 16, 2008, a male ECCF deputy resigned

after engaging in inappropriate sexual conduct with a

female inmate .

• •

A male ECCF deputy reportedly sexually harassed several

inmates in his unit by staring at the male inmates

while they were in the shower. This deputy reportedly

engaged in this conduct frequently and regularly. In

at least one instance, the deputy placed his hand on an

inmate who attempted to leave the shower. The deputy

reportedly admired the inmate's physique and told him,

"we should work out together."

. ' A male ECCF deputy reportedly engaged in lewd conduct with an inmate, placing his fingers through his uniform pants zipper to simulate fellatio and asking the inmate "do you want to suck it?"

•

On September 9, 2007, a female inmate accused a male

deputy of rape. The inmate was sent to the hospital

and subsequently moved to a different unit within ECHC.

There is no indication of whether an investigation was

conducted following the report of rape, nor whether the

deputy was, or would be, moved from the women's ward

while the charges were being investigated.

37 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 5; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 8.

-:

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7. Contraband and Vandalism
Another indicator of inadequate inmate supervision is the amount of dangerous contraband recovered from the, housing units and the ease with which inmates can fabricate homemade weapons. Due to the dilapidated condition of scores of cells, shower areas, and various dayroom features, inmates have ample material for fabricating weapons" including floor tiles, metal from light fixtures, metal from the ventilation system, glass from cell light bulbs, electrical wiring, and plumbing fixtures. Inmates have been found with shanks of varying size that are made of broken glass and metal rods. Inmates have also been found with handcuff keys and a syringe, and in March 2007 an inmate handed deput~es a 40-caliber hollow point bullet he found under his cellmate's bed. At the time, both inmates were assigned to a cell designate? for "constant observation." While it is virtually impossible for any correctional facility to completely deter inmates from obtaining materials for weapons, the problem at ECHC and ECCF is exacerbated by inadequate supervision.
8. Grievance System
An inmate grievance system is a fundamenta~ element of a functional jail system, intended to provide a mechanism for allowing inmates to raise concerns and issues to the administration. If viewed as cr~dible by inmates, it can also serve as a source of intelligence to staff regarding potential security,breaches as well as staff excessive force or other misconduct. The grievance system should be readily accessible to all inmates. Inmates should be able to file their grievances in a secure and confidential manner and without the threat of reprisals. Staff responsible for answering inmate grievan~es ' should do it in a responsive and prompt manner. We note a number of serious deficiencies with the inmate grievance process at ECHC and ECCF.
The grievance system at ECHC and ECCF is inadequate and open to abuse. NYSCC questioned the integrity of the grievance program, finding the system informal, the policies inadequate, and jail officials unwilling to investigate allegations or quick to categorize grievances 'as disciplinary and therefore non-grievable, even when they were. 38 We note that the NYSCC has cited the County for such problems in 2007 and 2008. Because the
38 See generally NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 6; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 10; NYSCC 2006 Evaluation, supra, n. 6, at 28-33.

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County provided us with only a very limited number of grievances for review, it is unclear whether the County has remedied these deficiencies. Therefore, we must conclude that the NYSCC findings remain unremedied. In June 2008, the NYSCC found that . no grievances had been filed by pre-trial detainees housed at ECCF. 39 This clearly indicates that the grievance, system is not functional, thus depriving the JMD of a valuable source of information concerning questionable constitutional treatment.
One partial explanation for this is the pifurcated grievance system that the JMD employs. Specifically, inmates are ins,tructed to utilize an informal grievance process that encourages inmates to raise their grievance with Jail Staff and allow Jail Staff an opportunity to informally resolve the grievance, rather than submit a formal grievance that is reviewed by the grievance officer. Although inmates are told that they may file a formal written grievance at any time, it, is impossible for JMD to account for whether a request for a formal grievance is actually met. Encouraging an inmate to pursue a grievance informally can be problematic in some circumstances, especially in those instances in which unlawful actions have occurred. Inmates who may have been subjected to unlawful conduct will, 'most likely, be reluctant to seek resolution from those who may have witnessed,or been involved in the very actions that would be the basis for the grievance. The ECSO's failure to monitor the application of the grievance system makes it deliberately indifferent to serious allegations of force, harassment, and medical care to be ignored. Numerous inmates reported submitting a grievance, only to have it taken out of the mail slot and destroyed by deputies.
9. Access to Infor.mation
Generally accepted correctional standards require that newly admitted inmates receive an opportunity to learn about the facility rules and regulations, services that are available, policies and procedures that affect the inmate, and facility schedules. Each inmate should receive a facility handbOOk, containing all the relevant information, and should have an opportunity to have the information explained to him or her if the inmate cannot read. Typically, facilities have an orientation procedure ,as a part of the intake processing.
39 Letter from NYSCC to Sheriff Timothy Howard, , dated June 5, 2008, Cycle 3 Evaluation,f at 9.

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I·"
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It is our understanding that inmates are provided a copy of either the ECHC Inmate Handbook or the ECCF Code of Conduct upon arrival at the respective facility. However, these handbooks are not necessarily made available in Spanish. While ECCF offers a Spanish translation of the ECCF Code of Conduct, the translated version we received in February 2008 was last updated on November 20, 1992; the English version was revised on August 21, 2007. The County of Erie did not produce a Spanish translated version of the ECHC Inmate Handbook in response to our request. In order for inmates to avail themselves of the programs a facility offers or familiarize themselves with the rules and regulations within a given facility, to which they will be held accountable, inmates must be made aware of facility rules and protocols. Failure to ·do so is inconsistent with generally accepted correctional standards .
.D. Inadequate Medical Care
ECHC and ECCF officials are responsible for providing adequate medical care to inmates. A jail may not deny or intentionally interfere with medical treatment. A delay in providing medical treatment may be so significant.that it amounts to a denial of treatment. Our investigation revealed that medical care provided at ECHC and ECCF falls below constitutionally required standards of care.
One key deficiency is the lack of on-site health care administrators to manage healthcare services at the facilities. Although a physician is assigned to all Erie County Detention facilities, the physician does not monitor the nappropriateness, timeliness and responsiveness of care and treatmen~ or review[] the recommendations for treatment made by health care providers in the community," and "[t]he physician is not involved in quality improvement reviews, training staff, or reviewing policy and procedures. ,,40 This level of. oversight is critically important to ensure constitutionally adequate medical care. For example, adequate oversight and management would identify problems in inmate medical records, provide advice on training, and assist in the development of policies that are consistent with generally accepted correctional healthcare standards. Without this oversight, it is impossible for ECSO and JMD to attest to the adequacy of medical care within their facilities. Indeed, the NCCHC could not adequately determine the quality of
40 NCCHC 2008 Erie Report, supra, n. 5, at 8.

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 30 of 51 r-" --........-. _.-.__. _- -_.- _....--..---. ~........- ..........._-- .._..._- '-'" ......... -.........~............". -.._......................._.... -. -........................"-'" ... ........-. -'" --- ..,.....
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health care for its 2008 review, because the inmate health records ,were incomplete. 41
The administration of health care services in ECHC and ECCF is inadequate, as there are no quality improvement programs or monitoring procedures in place to internally assess the quality of heath care at the facilities. 42 Moreover, ECHC and ECCF medical policies and procedures fail to provide staff operational guidance on quality of care. 43 The NYSCC cited both the ECHC and ECCF in 2007 and 2008 for violating state l~w and employing licensed practical,nurses44 ("LPN") without the direction or supervision of a registered 'nurse, as required by state law.4s Specifically, the NYSCC cited the "incompetent assessment" of an LPN for returning inmate John Jackson,46 who was suffering from, congestive heart failure, to his cell -- Mr. Jackson later

41 Id. at 7.

42

Id. at 9.

43 Id. at 8. NCCHC noted that the policies were "under revision using the NCCHC Standards to revise the manual." (Emphasis in the original) .

44 LPNs care for people who are sick, injured, convalescent, or disabled under the direction of physicians and registered nurses. LPNs are not to perform '''physical assessments of patients" or make "independent clinical decisions [or] patient dispositions without direction from a registered professional nurse or licensed physician." Letter from the NYSCC to Sheriff Timothy Howard, dated Mar. 29, 2007 (regarding the use of LPNs at ECCF, citing Article 139, New York State Education Law, Section
6902) .

45 Le,tter from the NYSCC to Sheriff Timothy, Howard, dated May 28, 2008 (regarding the use of LPNs at ECHC); Letter from the NYSCC to Sheriff Timothy Howard, dated Mar. 29, 2007 (regarding the use of 'LPNs at ECCF, citing Article 139, New York State Education 'Law, Section 6902); Letter from the NYSCC to Anthony J. Billittier III, M.D., Commissioner, Erie Cqunty Department of Health, dated Mar. 29, 2007 (regarding the death of inmate [John' Jackson]) .

46 The name "John Jackson" is a pseudonym.

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died. 47 Following an investigation into Mr. Jackson's death, the NYSCC found that the use of LPNs at ECCF, without the supervision .of a registered nurse, was "commonplace. ,,48 The NYSCC also criticized ECSO's response to their letter notifying the Jail that the. "medical care that Mr. Jackson received was negligent and inadequate. ,,49 The NYSCC's Medical Review Board found that ECSO's "flagrantly indifferent and dismissive attitude in response to a critical incident with a fatal outcome and to the requirements of state law and regulations are in no small part causative factors in such .outcomes.,,50 In May 2008, a little over a year after this finding, the NYSCC once again cited ECSO for similar professional misconduct. This time, ECHC was cited for employing LPNs without adequate supervision. 5l
Through our review of incident reports, documents provided by the County, and recent state oversight reports, ·we find ECHC and ECCF document management of inmate medical records poor and often incomplete. We note that these problems have persisted for years, despite the .NYSCC placing the County on notice of such deficiencies since 2005. 52 As recently as early 2008, the NCCHC similarly concluded that the County has, not addressed this issue. 53 In addition to the 2008 NCCHC finding, we draw
47 Letter from the NYSCC to Sheriff Timothy Howard, dated Mar. 29, 2007 (finding the ECSO "summarily disregarded the facts that the medical care that Mr. [Jackson] received was negligent and inadequate")i Letter from the NYSCC to Anthony J. Billittier III, M.D., Commissioner, Erie County Department of Health, dated Mar. 29, 2007.
48 Letter from the NYSCC to Anthony J. Billittier III, MD, Commissioner, Erie County Department of Health, dated Mar. 29,
2007.
49 Letter from the NYSCC to Sheriff Timothy Howard, dated· Mar. 29, 2007.
50 Id. 5l Letter from the NYSCC to Sheriff Timothy Howard, dated May 28, 2008.
52 Letter from the NYSCC to Sheriff Timothy Howard, dated Sept. 27, 2005 (citing deficiencies in the maintenance of inmate medical records) .
53 NCCHC 2008 Erie Report::, supra, n. 5, at 7, 24-25.
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additional negative inferences from the County's lack of cooperation with our investigation by failure to provide us with the requested inmate medical documents and access to the facilities.

Inmates at ECHC and ECCF suffering from serious medical conditions require continual observation and consistent treatment and care in. order to protect them from harm. The following examples illustrate that inmates at these facilities are not receiving adequate medical care.

•

In December 2007 and January 2008, four inmates

suffered multiple seizures. At least two of the

inmates were told to sleep on the floor, and there is

no indication that any of the inmates received

medication after being treated at the hospital. One of

the four inmates with a seizure history was transferred

to the hospital after deputies found him lying

unresponsive on the floor. An additional inmate,·with

a seizure history prior to detention, was found shaking

on the floor of her cell and was not immediately sent

for a medical evaluation.

•

In April 2007, ECCF was cited for providing inadequate

dental care to an inmate suffering from pain and a

sensitivity to food and liquids. 54 The Citizens Policy

and Complaint Review Council found that ECCF took too

long to respond to the inmate's request to see a doctor

regarding his pain, finding 21 days unreasonably

long .55

•

In March 2007, an ECHC nurse, while delivering

prescribed medication to an inmate, discovered that the

inmate had died due to unknown causes. Earlier in the

day, the inmate had refused food and requested that his

cell window be opened.

I." Inadequate Administration of Medication

It appears that ECHC and ECCF nursing staff who store and administer medication may be untrained in critical areas of security, accountability, common si~e effects of medications and

54 Letter from the NYSCC to Sheriff Timothy Howard, dated Apr. 24, 2007.
55

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documentation of administration of medicines. Alarmingly, the County was made aware of this deficiency through NYSCC evaluations in 2005 and 2006, as well as the NCCHC 2008 evaluation. 56 Further, we received consistent reports from ECCF inmates that County deputies withhold inmate medication as a source of intimidation or punishment. The following examples illustrate the gravity of the situation:
• Despite receiving warnings from State oversight agencies as recently as 2008, nursing staff fail to ensure that inmates swallow their medication and fail to check inmate identification prior to administering medication. We reviewed' incidents from 2007 in which an inmate attempted suicide by ingesting another inmate's psychotropic medication; another inmate hoarded his medication for several weeks before deputies located it on his shelf; and a third inmate admittedly faked a seizure in order to obtain his prescription medication.
• The NYSCC's review found controlled substances "placed in a paper bag and stored in the narcotic cabinet after they have been discontinued or when the inmate has been discharged ... [and that] ... [~]hese controlled substances are not counted each shift," in violat;ion of Federal and State laws. 57
56 Letter from the NYSCC to Sheriff Timothy Howard, dated July 17, 2006 ("There is an inadequate system for the management of pharmaceuticals, including controlled substances"); Letter ,from NYSCC to Sheriff Patrick Gallivan, dated Apr. 18, 2005 (citing ECSO for not screening detainees); see also, Letter from the NYSCC to Sheriff Patrick Gallivan, dated Feb. 22, 2005 and Letter', from the NYSCC to Sheriff Timothy Howard, dated Sept. 27, 2005 (both addressing the inadequacy of ECHC's management of pharmaceuticals) .
57 Letter from the NYSCC to Sheriff Timothy Howard, dated July 17, 2006. In February 2005 ECSD was cited for leaving "two large boxes of controlled substances unattended in an unsecured area, in the medical unit," in violation of Federal and State laws that require the restriction of controlled substances "to a secure area under double lock." Letter from the NYSCC to Sheriff Patrick Gallivan, dated Feb. 22, 2005.

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The above. examples indicate that procedures for medication administration at the ECHC and ECCF are not 'consistent with generally accepted correctional standards.
2. Inadequate Infection Control
ECHC and ECCF fail to adequately treat, contain, and manage infectious disease. ECHC and ECCF's management of Tuberculosis ("TB") ,58 Methicillin-resistant Staphylococcus aureus ("MRSA") ,59 and other infectious diseases deviates from generally accepted correctional medical standards. This failure is dangerous and places inmates, staff, and the community at unnecessary risk of serious health problems.
Generally accepted correctional standards for the management of communicable diseases in correctional facilities require the development of a management. plan. This plan, at a minimum, should address the screening r diagnosls r and treatment of HIV/AIDSi Sexually Transmitted Diseases; Hepatitis; MRSAi TBi and outbreaks of communicable diseases. ECHC and ECCF r however r have no written exposure control plan approved by the responsible physician. 60 The lack of a written exposure control plan has resulted in deficiencies related to the containment and treatment .of TB and MRSA. For example, the nursing staff at ECHC have confirmed that TB PPD testing is not performed on detainees at

58 TB is a life threatening respiratory ailment commonly found in correctional facilities. TB is prevalent in correctional facilities because of poor circulation or inadequate ventilation, and the close quarters of a transient population.

59 MRSA is a potentially dangerous drug-resistant bacteria

that can cause serious systemic illness, permanent disfigurement,

and death. A MRSA infection is sometimes confused by detainees

and medical staff as a spider or insect biter causing treatment

to be delayed while the infection has time to worsen or spread.

See http://www.aafp.org/fpr/20041100/10.html. MRSA is resistant

to common antibiotics r such as methicillin r oxacillin r penicillinr and amoxicillin. MRSA is almost always spread by

\direct physical contact. However r spread may also occur through

indirect contact by touching obj ects such as towels, sheets "

wound dressings, and clothes. MRSA can be difficult to treat and

can progress to life-threatening blood or bone infections. See

MedicineNet.com r

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60 NCCHC 2008 Erie Report, supra r n. 5, at 10.

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 35 of 51
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the Holding Center, in contradiction to generally accepted correctional medical standards. 61 I~deed, we have received numerous reports from inmates hou.sed at ECHC between 20D7 and 2008, confirming that they were not tested for TB upon arrival at the facility. Similarly deficient is ECHC's and BCCF's medical staffs' failure to identify symptoms clinically associated with a MRSA infection (~, red bumps, rashes, and the. "spider bite") . We have receive~ numerous reports from inmates held at these facilities who exhibited commonly known signs associated with MRSA and did not receive treatment.
Moreover, jail medical staff not only fail to screen inmates when they arrive at the facility and provide adequate surveillance of infectious diseases; medical staff also do not provide discharge planning, ·therefore providing no monitoring for inmates with communicable or infectious diseases, understood to be a basic part of generally accepted correctional practices. 62
E. Environmental Health and Safety Deficiencies
ECHC has severe. environmental health and safety problems at numerous levels of operation. 63 Despite repeated NYSCC citations for poor sanitation and maintenance, ECSO and JMD have repeatedly failed to correct the problems. In 2007, NYSCC found maintenance and sanitation categorically inadequate throughout BCHC,· exposing inmates and staff to unhealthy and unsafe conditions. State regulators cited ECSO and JMD on several occasions for overall poor sanitation, finding sanitation conditions "deplorable," with walls covered in toothpaste and cell bars covered in towels

61 Letter from NYSCC to Sheriff Timothy Howard, dated Oct. 10, 2007; Letter from NYSCC to Sheriff Patrick Gallivan, dated Apr. 18, ·2005.

62 NCCHC 2008 Brie Report, supra, n. 5, at 10.

63

Given our' limited access to inmates held at ECCF, we

are unable to assess whether similar sanitation problems exist at

ECCF to the degree to whicp they exist at ECHC. We have received

I

reports, however, that conditions at ECCF are also unsanitary.

I
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and sheets. 64 NYSCC staff, for example, found a significant accumulation of Styrofoam food trays and other clutter in the cells. This is a serious problem, as it can attract insects and other vermin, as well as allow for the spread of disease. Maintenance and sanitation are categorically inadequate throughout the facility, exposing inmates and staff to unhealthy and unsafe environments as a result. We learned of one inmate who indicated he was housed, for at least one month, in an ECHC cell with four inches of standing water due to toilet flooding.
In a correctional setting where inmates and staff are dependent on maintenance staff for their water, heat, lighting, and ventilation, it is expected that these issues would be addressed in a timely manner in order to reduce risks of illness and injury to inmates and staff alike. That is not the case here. NYSCC has cited ECSO and JMD for elect~ical hazards that. neither correctional officers nor maintenance staff seemed to be concerned about, despite the potential for harm being readily apparent . . In both April and August 2007, the NYSCC found ECHC supervisors were "not holding staff accountable for the sanitation of their assigned housing areas. ,,65 Critical sanitation deficiencies included the failure of jail staff to properly secure sanitation equipment and supplies when not in use. Inmates have used sanitation equipment, like a broom, as a weapon. In one case, the handle was broken and used to stab another inmate.
ECSO and JMD were also cited for poor facility maintenance. The-NYSCC found the padding and cushion material on chairs in the day room were torn or removed, that could be used to cause

64 NYSCC ECHC/Cycle 2 Evaluation Aug. 2007, supra, n. 6,

at 5; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 9.

I

The covering of cell bars with towels and sheets results not only

I

in poor sanitation but also in security risks, as correctional

I

officers are unable to see intb cells when the bars are covered

!

with towels.

1

I
I

65 NYSCC ECHC Cycle 2 Evaluation Apr. 2007 , supra, n. 6,

at 9; NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 5.

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serious

Laundry services at ECHC and ECCF are similarly inadequate. As of August 2007, U[iJnmates [were] required to either wash their facility-issued and/or personally owned undergarment in a cell sink or arrange for the pick-up and washing of these items by family or friends. ,,67 This poses a serious problem, as soiled and/or improperly washed clothing can retain bacteria and other contagion that can cause infection or sp~ead disease. Moreover, inmates are forced to dry their clothes by hanging them in, their cells, thereby obstructing a deputy's view into the cell, thus compromising security. Lastly, the NYSCC noted that no clothing exchange was provided to inmates, as required under New York law. 68
III. RECOMMENDED REMEDIAL MEASURES
In order to rectify the identified deficiencies and protect the constitutional rights of inmates confined at ECHC and ECCF, ECSO and JMD should implement, at a minimum, the following remedial measures:
A. Suioide Prevention Measures
1. Provide adequate treatment for inmates with self-injurious behavior.

I
\
i
67 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 4. Again, this inadequacy in sanitation also represents a security risk.
68 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, ,no 6, at 4; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 7; NYSCC 2006 Evaluation, supra, n. 6, at 13.

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2. Develop policies and procedures to ensure appropriate management of suicidal inmates and the establishment of 'a suicide prevention program.
3. Ensure that all staff are educated and adequately trained on suicide recognition, intervention, and management, including pre-service and annual in-service suicide prevention training, and that, prior to assuming their duties and on a regular basis thereafter, all staff who work directly with inmates have demonstrated competence in identifying and managing suicide.
4. Ensure that ECHC and ECCF have written suicide prevention policies that include an operational description of the requirements for both pre-service and annual in-service training.
5··~ Screen all inmates upon intake, including questioning to assess current and past suicide risk.
6. Document inmate suicide attempts at ECHC and ECCF in the inmate's correctional record in the classification system, in order to ensure that intake staff will be aware of past suicide attempts if an inmate with a history of suicide attempts is admitted to ECHC and ECCF again in the futpre.
7. Ensure that intake staff are sufficiently experienced and qualified to identify inmates who pose a risk for suicide, and that such inmates are promptly referred to the appropriate mental health professionals and provided appropriate housing.
'8. Ensure that follow-up evaluations by mental health professionals of all new inmates are conducted within 14 days of intake.
9. Ensure that inmates on suicide precautions receive adequate meJ?tal status examinations by a ment'al health clinician.
10. Ensure that suicidal inmates are housed in an area that is safe for them with appropriate supervision and observation by staff.

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11. Ensure that 15- and 30-minute checks of inmates under observation for risk of suicide are timely performed and appropriately documented.

12. Provide different levels of supervision of an inmate based on the presenting risk factors for suicide.

13. Ensure that detainees placed on suicide wat'ch are assessed adequately, monitored appropriately to ensure their health and safety, and released from suicide watch as their clinical condition indicates, according
, to professional standards of care.

14. 'Ensure that cut-down, tools are readily available to staff in all housing units. Train staff in the use of .cut-down tools.

15. Ensure a component of administrative review is implemented following a suicide or a 'suicide attempt ,to identify what could have been done to prevent the suicide.

B. Mental Health Care

1. Timely ,and Appropriate Evaluation Of Inmates

a. Ensure ECHC and ECCF properly identify inmates with mental illness through adequate screening, . and that such screening is incorporated into each inmate's medical record.

b. Ensure that inmates with potentially serious

chronic mental health illness are referred for

prompt mental health evaluations and examinations

by a psychiatrist.· .

'

c. ' Provide adequat'e mental health assessment and treatment in accordance with generally accepted correctional standards of mental health care.

d. Ensure that adequate crisis services are available to address the psychiatric emergencies of inmates.

e. Provide staffing adequate for inmates' serious mental health needs. Provide adequate on-site psychiatry coverage. Ensure that psychiatrists see inmates in a timely manner. Ensure that

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psychotropic medication prescriptions are reviewed by a psychiatrist on a regular, timely basis.
2. Assessment and Treatment
a. Ensure that treatment plans adequately address inmates' serious mental health needs and that the plans co~tain interventions specifically tailored to the inmates' diagnoses and problems, consistent with generally accepted correctional practices. Provide therapy services where necessary for inmates with serious mental health needs. Provide adequate opportunities for inmates and staff to have confidential communications related to mental health treatment, while maintaining appropriate security precautions.
b. Ensure that mental health evaluations done as part of the disciplinary process include recommendations based on the inmate's mental health status.
c. Ensure that medications are provided to inmates in a timely manner and that they are properly monitored.
d. Provide staffing adequate for inmates with serious mental health needs. Ensure that services" such as distribution of medications, are performed by nurses or other properly trained staff.
e. Provide policies and procedures that require the appropriate assessment of inmates with mental illness.
f. Ensure adequate medical documentation and general procedures as part of the mental health assessments that account for inmates' psychiatric histories.
3. Psychotherapeutic Medication Administration
a. Ensure timely responses to orders for medication and laboratory tests, and prompt documentation thereof in inmates' charts.'
b. Ensure that adequate psychotherapeutic medication administration is provided in accordance with

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generally accepted correctional mental health care standards.
c. Ensure that changes to inmates' psychotropic medications are clinically justified. Screen inmates on psychotropic medications for movement disorders and provide treatment where appropriate.
4. Other Mental Health Issues
a., Ensure that administrative segregation and observation status are not used to punish inmates for symptoms of mental illness and behaviors that are, because of mental illness, beyond their control.
b. Ensure that ECHC and ECCF mental health records are centralizedr 'complete, and accurate.
c. Ensure that ECHC and ECCF quality assurance system is adequate to identify and correct serious deficiencies with the mental health system.
d. Ensure that a psychiatrist or physician conducts an in-person evaluation of an ~nmate prior to a seclusion or restraint order, or as soon thereafter as possible. Seclusion or restraint orders should include sufficient criteria for release.
e. Ensure that all staff who directly intera,ct with inmates (including Correctional Officers) receive competency-based training on basic mental health information (~, diagnosis, specific problematic behaviors, psychiatric medication, additional areas of concern); recognition of signs and symptoms evidencing a response to trauma; and the appropriate use of force for inmates who suffer from mental illness.
c. Protection from Harm
1. Use of Force
a. Develop and maintain comprehensive and updated policies and procedures, in accordance with generally accepted correctional standards r regarding permissible use of force.
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Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 42 of 51
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b. Develop and maintain comprehensive policies and procedures, consistent with generally accepted correctional standards, regarding the establishment and deployment of the Response Team and Quick Entry Jearn, including permissible uses of force, use of force reporting, and necessary training specific for membership on this team.

c. Establish effective oversight of the use of force.

d. Develop an effective and comprehensive training , program in the appropriate use of force.

2. S"afety and Supervision

a. Ensure that correctional officer staffing and supervision levels are appropriate to adequately supervise inmates.

b. Ensure that inmate common areas are adequately supervised whenever inmates are present.

c. Ensure frequent, irregularly timed, and documented security rounds by correctional officers inside each housing unit.

d. Ensure that staff adequately and promptly report incidents.

e. Develop a process to track all serious .incidents

that captures all relevant information, including:

location, any injuries, if medical care is

provided, primary and secondary staff involved,

reviewing supervisor, external reviews and results

(if applicable), remedy taken (if appropriate)',

and administrative sign-off.

I

I'

f. Establish a procedure to ensure that inmates do not possess or have access to contraband. Conduct

regular inspections of cells and common areas of

the.housing units for contraband.

.

g. Conduct regular inspections of cells and common

areas of the housing units to identify and prevent

rule violations by inmates.

'

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h. Review, and revise as applicable, all security policies and Standard Operating Procedures on an annual basis.
i. Provide formal training on division-specific 'post orders each time a correctional officer is transferred from one division to another.
j. Develop and implement specialized training for officers assigned to special management units, which include the Special Incarceration Units, disciplinary segregation, and protective custody units. Officers assigned to these units should possess a higher. level of experience and be regularly assigned to these units for stability purposes.
k. Develop and implement appropriate training for corrections staff addressing security administration regarding:
(1) Identification, prevention, and intervention in inmate-on-inmate violence; and
(2) Professionalism and appropriate interaction between corrections staff and inmates.
Ensure that adequate supervisory staff is in place to prevent staff provocation and staff encouragement of inmate violence.
Develop and implement adequate policies and procedures to ensure appropriate investigation of staff-on-inmate violence and to ensure that appropriate corrective actions are taken.
Ensure the adequate division of supervisory responsibility at ECCF, including, the establishment of clear lines of authority per shift, irrespective of union affiliation.
3. Classification
a. Develop and implement policies and procedures for an objective classification system that separates inmates in housing units by classification levels.
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b. Update facility communication practices to provide officers involved in the classification process with current information as to cell availability on each division.
c. Update the classification system to include information on each inmate's history.
4. Sexual Misconduct
a. Ensure that staff is trained and/or retrained on the Prison Rape Elimination Act.
b. Establish a zero. tolerance standard regarding any form of sexual harassment or sexual misconduct that involves inmates/ staff or any. other individual that has contact with inmates.
c. Prompt written corrective action must follow any deficiency or negative finding that is revealed in either an administrative or criminal investigation surrounding sexual misconduct or sexual harassment.
5. Inmate Grievance Procedure
a. Develop and implement policies and procedures to ensure inmates have access to an adequate grievance process. Such process should ensure that grievances are processed and legitimate. grievances addressed and remedied in a timely manner/ responses are documented and communicated to inmatesi inmates need not confront staff prior to filing grievances about them/ and inmates may file grievances confidentially.
b. Ensure that grievance forms are available on all units.
c. Ensure that inmate grievances are screened for allegations of staff misconduct and, if the incident or allegation meets established criteria, referred for investigation.

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6. Access to Information
a. Ensure that newly admitted inmates receive information they need to comply with facility rules and regulations, report misconduct, access medical and mental health care, and seek redress of grievances.
b. Ensure that inmates who are not literate are afforded the opportunity to have" information on facility rules and services explained to them
or~lly.
D. Medical Care
1. Intake Screening
a. Ensure that adequate intake screening and health assessments are provided for inmates in accordance with generally accepted correctional standards of care. Develop and implement an appropriate medical intake screening instrument that identifies observable and non-observable medical needs, including infectious diseases, and ensure timely access to a physician when presenting symptoms require such care.
b. Ensure that acute and chronic health needs of inmates are identified in order to provide adequate medical care.
c. Ensure that medical screening information is reviewed in a timely manner by trained and appropriate medical care providers.
d. Ensure that tuberculosis ("TB") screening is conducted in a timely manner. Provide adequate treatment and management of communicable diseases (~, TB and Methicillin-resistant Staphylococcus aureus ("MRSA"), HIV, and Hepatitis) .
2 . Acute care
a. Provide timely medical appointments and follow-up medical treatment. Ensure that inmates receive treatment that adequately addresses their serious medical needs. Ensure that inmates receive acute care in a timely and appropriate manner.

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b. Provide adequate acute care for inmates with serious and life-threatening conditions.
c. Ensure that staff are adequately trained and prepared to handle emergency situations in accordance with generally accepted correctional standards.
3. Chronic care
a. Ensure that inmates receive thorough assessments for, and monitoring of, their chronic illness. Develop clinical practice guidelines for inmates with chronic and communicable diseases. Ensure that standard diagnostic tools are employed to administer the appropriate preventative care in a timely manner.
b. Adopt and implement appropriate clinical guidelines for chronic diseases such as HIV, hypertension, diabetes, asthma, and elevated blood lipids, and policies and procedures on, among other things, timeliness of access to medical care, continuity of medication, infection control, medicine dispensing, intoxication/detoxification, record-keeping, disease prevention, and special
needs~
c. Ensure that medical staff are adequately trained to identify inmates in need of immediate or chronic care, and provide timely treatment or referrals for such inmates.
d. Ensure that inmates with chronic conditions are routinely seen by a physician to evaluate the status of their health and the effectiveness of the medication administered "for their chronic conditions.
e. Ensure adequate follow-up treatment and medication administration concerning all inmates with chronic conditions.

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4. Treatment and Management of Communicable Disease
a. Provide adequate treatment and management of communicable diseases, including TB and Methicillin-resistant Staphylococcus aureus.
b. Ensure that inmates with communicable diseases are appropriately screened, isolated, and treated.
c. Ensure that HVAC and negative pressure systems are properly maintained and functioning.
d. Develop and implement an adequate TB control plan in accordance with generally accepted correctional standards of care. Such should provide guidelines for identification, treatment, and containment to prevent transmission of TB to staff or inmates.
e. Develop and implement policies that adequately manage contagious skin infections. Develop a skin infection control plan to set expectations and provide a work plan for the prevention of transmission of skin infections, including drug-resistant infections to staff and other inmates.
f. Develop and implement adequate guidelines to ensure that inmates receive appropriate wound care.
5. Follow-Up Care
a. Provide adequate care and maintain appropriate records for inmates following hospitalization. Ensure that inmates who receive specialty or hospital care are evaluated upon their return to the facility and that, at a minimum, discharge instructions are noted and appropriately provided.
6. Record Keeping
a. Ensure that medical records are adequate to assist in providing and managing the medical care needs of inmates at ECHC and ECCF.
b. Ensure that medical records are complete, accurate, readily accessible, and systematically organized. All clinical encounters and reviews of

,. _ _._. _--_._ _ '.................. .._._.C._a-s.e__.•1. :09__-..c_..v. -008.. 4..9....-..W......M......S.....-_J...J._.M.............D......o....c..._u...m.....e. n-..t....9....7....-..3..........F....i_le...d.....0...7.../..2...3.../.1...0........P. age 48 of 51

I

I

I

- 47 -

I

inmates should be documented in the inmates'

records.

7. Medication Administration

a. Ensure that treatment and administration of medication to inmates is implemented in accordance with generally accepted correctional standards of care.

b. Ensure that administration of medication is accurate and adequately documented. Develop policies and procedures for the accurate distribution of medication and maintenance of medication records. Provide asystematic review of the use of medication to ensure that each inmate's prescribed regimen continues to be appropriate and effective for his condition.

c.' Ensure that medicine distribution is hygienic and appropriate for the needs of inmates.

8. Staffing r Training r and Supervision
a. Provide adequate staffing r training, and supervision of medical and correctional staff necessary to ensure adequate medical care is provided.

b. Ensure that meqical staffing is· adequate for inmates' serious medical needs and that physicians adequately monitor their patients.

c. Provide adequate physician oversight'and supervision of medical staff, including supervision for LPNs.

d. Ensure that there is an adequate number of correctional officers to escort inmates to medical units.

9. Quality Assurance Review

a. Ensure that ECHC and ECCF's quality assurance system is adequate to identify and correct serious deficiencies with the medical system.

Case 1:09-cv-00849-WMS-JJM Document 97-3 Filed 07/23/10 Page 49 of 51 - _-- .. ~~ ...-..~.-------.~.---- .-._--_._-_._-----_._---_._ .. '-"'--'" _.. .... -.... _.. _.... - .. --_._-_._ ...- -"--'-- ...... -..._--._... ._-----_..... ,
- 48 -
b. Ensure that ECHC and ECCF's quality assurance system is capable of assisting in managing and treating inmate medical needs. At a minimum, such a system should be reliable and capable of tracking medically-related incidents.
E. Sanitation and Environmental Conditions
1. Sanitation and Maintenance o~ Facilities
a. Develop and implement policies and procedures to ensure adequate cle-aning and maintenance of the facilities with meaningful' inspection processes and documentation. Such policies should include oversight and supervision/ as well as establish daily cleaning requirements for toilets, showers, and housing units.
b. Ensure prompt and proper maintenance of shower, toilet, and sink units.
c. Ensure proper ventilation and airflow in all cells and housing units.
d. Ensure adequate lighting in all housing units and prompt replacement and repair of malfunctioning lighting fixtures, so that officers and inmates are not exposed to the security danger that lack of visibility presents.
2. Environmental Control
a. Ensure adequate control and observation of ECHC and ECCF cells, particularly with regard to razors, fire loading materials, commissary items, and cleaning supplies.
b. Repair electrical shock hazards; develop and implement a system for maintenance and repair of electrical outlets, devices, and exposed electrical wires.
3. Sanitary Laundry Procedures
a. Ensure that laundry delivery procedures protect inmates from exposure to contagious disease, bodily fluids, and pathogens by preventing clean

-_... _._._.C._._.a__s.e._.._1-_:.0.--9-_.-_c_ .v_--0_0._8-4--9-_-W._-M---S_-.J_J- -M--D_o.c_u-m-e-n-t-9_7.-3_-F-i-le-d--0-7-/2_3../_1-_0._-_.._P._a-g--e-_5.-0.--o--f_5._1..-
- 49 -
laundry from coming into contact with dirty laundry or contaminated surfaces.
b. To limit the spread of MRSA and other infectious disease, require inmates to provide all clothing and linens for ECHC and ECCF laundering and prevent inmates from washing and drying laundry outside the formal procedures.
c. To limit the spread of MRSA and other infectious disease, ensure that clothing and linens returned from off-site laundry facility are cleanr sanitized r qnd completely dry.
d. Provide all. inmates with properly cleaned and adequate bedding and clothing
* * *
IV. CONCLUSION
Please note that this letter is a public document and will be posted on the Civil Rights DivisionIs website.
We invite the State to discuss with us the remedial recommendations r with the goal of remedying the identified deficiencies without resort to litigation. In the event that we are unable to reach a resolution regarding our concerns r the Attorney General is empowered to institute a lawsuit pursuant to CRIPA to correct deficiencies of the kind identified in this letter, 49 days after appropriate officials have been notified of them. 42 U,S.C. § 1997b(a) (1). If you have any questions regarding this letter r please call Shanetta Y. Cutlar, Chief of the Civil Rights Divisionrs Special Litigation Sectionl at (202)514-0195.
SincerelYr
0~~
Acting Assistant Attorney General
cc: Timothy B. Howard Erie County Sheriff

Case 1:09-cv-00849-WMS-JJM Document 97-3 Fil_e-d 07/23/10 Page 51 of 51 __ - _ - -- ---._ .. ". ~ ............... .. -.~--~.-~- -..--.. .......... '-"-'-.-..--.-~.-.-~.--..... ....

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- 50 -
Robert Koch Superintendent Erie County Sheriff's Department, Jail Management Division
Cheryl A. Green County Attorney Erie County
Kathleen Mehltretter Acting United States Attorney Western District of New York

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

ERIE COUNTY, NEW YORK,

)

)

Defendant.

)

_____________________________________ )

09-CV-849S

ORDER ENTERING STIPULATED ORDER OF DISMISSAL

Plaintiff, the United States of America, and Defendant, Erie County, New York, have determined that entering into a Stipulated Order of Dismissal (executed by both Parties on or before August 17, 2011), rather than contested litigation, is the best way to resolve the remaining issues in this case concerning protection from harm, provision of medical and mental health treatment, and environmental health and safety.

On August 18, 2011, the parties filed a Joint Motion for Entry of a Stipulated Order of Dismissal. (Docket No. 225.) Having reviewed the parties’ submission, this Court finds that the Stipulated Order of Dismissal (Docket No. 225-1) satisfies the requirements for prospective relief under the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A), is narrowly drawn, and extends no further than is necessary and is the least intrusive means necessary to correct the violations of the federal rights at issue.

This case will therefore be dismissed and closed, but this Court shall retain jurisdiction over this matter until the substance of the terms of the Stipulated Order of Dismissal are fulfilled, and either party may move to reopen this case at any time should issues requiring this Court’s intervention arise.
This Court retains the power to enforce the Stipulated Order of Dismissal.
IT HEREBY IS ORDERED, that the Joint Motion for Entry of the Stipulated Order of Dismissal (Docket No. 225) is GRANTED.
FURTHER, that the Stipulated Order of Dismissal (Docket No. 225-1) is hereby APPROVED, ORDERED, and ENTERED.
FURTHER, that this Court finds that the Stipulated Order of Dismissal satisfies the requirements of the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A).
FURTHER, that this Court shall retain jurisdiction over this matter until the substance of the terms of the Stipulated Order of Dismissal are fulfilled, and either party may move to reopen this case at any time should issues requiring this Court’s intervention arise.
FURTHER, that this Court retains the power to enforce the Stipulated Order of Dismissal.
2

FURTHER, that the Clerk of Court is directed to CLOSE this case. SO ORDERED.

Dated:

August 25, 2011 Buffalo, New York

s/William M. Skretny WILLIAM M. SKRETNY
Chief Judge United States District Court

3

 
 13-3653 United States v. Erie County

1

UNITED STATES COURT OF APPEALS

2

3

FOR THE SECOND CIRCUIT

4

5

____________________________________

6

7

August Term, 2013

8

9

(Argued: June 18, 2014

Decided: August 18, 2014)

10

11

Docket No. 13-3653-cv

12

____________________________________

13

14

UNITED STATES OF AMERICA,

15

16

Plaintiff-Appellee,

17

18

v.

19

20

ERIE COUNTY, NEW YORK,

21

22

Defendant-Appellee,

23

24

v.

25

26

NEW YORK CIVIL LIBERTIES UNION (NYCLU),

27

28

Intervenor-Appellant.

29

30

____________________________________

31

32

Before: CALABRESI, PARKER, and LYNCH, Circuit Judges.

33

34

____________________________________

35

36

37

The United States brought an action against Erie County, alleging that two of the

38 County’s correctional facilities violated the federal constitutional rights of their inmates. The

39 action was settled. Pursuant to the stipulated order of dismissal, the parties agreed that

1

1 compliance consultants were to prepare reports measuring the County’s progress in improving 2 conditions in the correctional facilities. The reports were to be filed with the district court, which 3 retained jurisdiction over the matter. The district court (Skretny, C.J.) allowed those reports to be 4 filed under seal, and the New York Civil Liberties Union (“NYCLU”) sought to intervene in 5 order to have the reports unsealed. The district court allowed NYCLU to intervene, but denied its 6 motion to unseal the reports. We reverse this denial, and hold that the First Amendment requires 7 public access to the reports.

8

ERIN ASLAN (Mark L. Gross, on the brief), for Jocelyn

9

Samuels, Acting Assistant Attorney General, U.S.

10

Department of Justice, Washington, D.C., for Plaintiff-

11

Appellee.

12

13

MICHELLE M. PARKER, for Michael A. Siragusa, Erie

14

County Attorney, Buffalo, N.Y., for Defendant-Appellee.

15

16

ALEXIS KARTERTON (Arthur Eisenberg, Jordan Wells,

17

Christopher Dunn, on the brief), New York Civil Liberties

18

Union, New York, N.Y., for Intervenor-Appellant.

19

20

21 CALABRESI, Circuit Judge:

22

This case is about public access to judicial documents.1 The documents in this case are

23 compliance reports, filed with the district court pursuant to a settlement agreement between the

24 United States and Erie County. The reports measure Erie County’s progress in improving the

25 conditions of its prisons, which the United States alleged violated the Fourteenth and Eighth

26 Amendments of the Constitution in the suit that led to the settlement agreement. If the reports

1

1 Whether an equivalent right exists in other cases involving other government

2 institutions is not before us, and we therefore express no view on that subject.

2

1 show that Erie County is failing to fulfill the conditions outlined in the settlement’s stipulated 2 order of dismissal, the United States is empowered to bring an enforcement proceeding, and the 3 district court can provide “any relief permitted by law or equity.” Joint App’x at 219.

4

Today, we hold that the public’s fundamental right of access to judicial documents,

5 guaranteed by the First Amendment, was wrongly denied when the compliance reports in this

6 case were sealed. Accordingly, we reverse the district court’s decision, and order that the judicial

7 documents be unsealed.

8

I.

9

Following a two-year investigation into the conditions of confinement at two Erie County

10 correctional facilities, the United States brought an action in the Western District of New York

11 against Erie County and several of its officials.2 The action, filed in September of 2009, alleged

12 that the conditions at the Erie County facilities violated the federal constitutional rights of the

13 inmates housed there by failing (a) to protect them from harm, (b) to provide adequate mental

14 health care or medical care, and (c) to engage in adequate suicide prevention.

15

In June of 2010, the District Court approved a partial settlement between the parties,

16 which would resolve only the claims relating to suicide prevention. Pursuant to this agreement,

17 the parties appointed a compliance officer, who would file with the Court reports measuring the

18 extent to which Erie County was taking steps to prevent suicides.

1

2

The action was brought pursuant to the Civil Rights of Institutionalized Persons

2 Act of 1980, 42 U.S.C. § 1997a et seq.

3

1

The United States’ other claims against Erie County remained. When Erie County moved

2 to dismiss these claims, the District Court denied the motion but ordered the United States to file

3 an amended complaint. The United States did so, alleging Eighth and Fourteenth Amendment

4 violations for, inter alia, medical indifference, substandard mental health and medical care, and

5 environmental health and safety failings.

6

In August of 2011, the United States and Erie County proposed a settlement agreement to

7 resolve these remaining claims. Under the agreement, the claims against the individual

8 defendant-officials were dismissed, and while Erie County did not admit wrongdoing, it did

9 agree to implement practices and procedures to remediate what the United States had contended

10 were unconstitutional conditions of confinement.

11

To ensure that the terms of the order were fulfilled, the settlement provided for the

12 appointment of two compliance consultants. One would monitor mental health issues, and the

13 other would oversee medical issues. 3 Every six months, the compliance consultants were to

14 produce written reports—which are the focus of this litigation—outlining Erie County’s

15 progress, or lack thereof, in remedying the issues that led to the suit and settlement. The reports

16 were first to be given to the parties, who could provide comment, and were then to be filed with

17 the District Court. The compliance consultants would report to the Court whether Erie County

18 was in substantial compliance, partial compliance, or non-compliance with the settlement

19 agreement.

1

3

Since the suicide prevention settlement was incorporated in this agreement, the

2 above referenced compliance consultants would also replace the compliance officer

3 selected under the initial suicide prevention settlement.

4

1

In an order entered later that August, the District Court agreed that the parties’ proposed

2 stipulated settlement order satisfied the requirements for prospective relief under the Prison

3 Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A), inasmuch as it was narrowly drawn and

4 employed the least intrusive means to correct the alleged violations of the federal rights at issue.

5 The Court therefore approved the stipulated order dismissing the government’s suit, but it also

6 retained jurisdiction over the matter until the terms of the settlement were fulfilled.

7

Importantly, the settlement agreement allows either party to move to reopen the case at

8 any time “should issues requiring [the] Court's intervention arise.” Under such circumstances,

9 the compliance reports would form the record for any appropriate enforcement action before the

10 District Court. Should, for example, Erie County fail to abide by the settlement, the agreement

11 provides that the Court is fully empowered to order “any relief permitted by law or equity.”

12 Significantly, the agreement does not purport to preclude the District Court from providing such

13 relief sua sponte if, on the basis of the reports, it finds non-compliance.

14

After the first compliance report was produced, Erie County moved that the order be filed

15 under seal. The United States did not oppose the motion, and the District Court granted it. The

16 Court also permitted future sealing of the reports.

17

In June of 2012, the New York Civil Liberties Union (“NYCLU”) moved to intervene

18 and to unseal the compliance reports.4 The District Court granted NYCLU’s motion to intervene,

19 but denied its motion to unseal the reports. United States v. Erie County, N.Y., No. 09-cv-849S,

1

4

NYCLU clarifies here that in intervening, it only seeks to unseal the compliance

2 reports, and not Erie County’s own compliance records. See Intervenor-Appellant’s Br. at

3 15 n.2.

5

1 2013 WL 4679070 (W.D.N.Y. Aug. 30, 2013). In so deciding, the Court found that the 2 compliance reports qualified as judicial documents, since they were filed with the Court in a 3 matter over which the Court retained jurisdiction and since they were relevant to the Court’s 4 exercise of judicial authority. Id. at *8-11. It then considered whether, under the First 5 Amendment or the common law, the presumption of public access that applies to such judicial 6 documents would mandate unsealing, and concluded that it would not. Id. at *12, *14.

7

The Court first found that the reports, though judicial documents, were not within the

8 subset of such documents entitled to a First Amendment right of access. The Court construed the

9 compliance reports to be akin to settlement negotiation documents, and believing that they had

10 little bearing on its own exercise of Article III power, it held that they were not the types of

11 judicial documents that the First Amendment would require be made available to the public. Id.

12 at *11-12.

13

The Court also found that while the common law presumption of access was applicable

14 to the reports, it was a weak presumption. Id. at *13-14. Here, too, the reports were construed by

15 the Court to be similar to settlement negotiation documents and, as such, subject to the need for

16 the kind of frank discussion among the parties that might be diluted upon disclosure. On that

17 basis, the Court determined that the common law presumption of access was overcome. Id.

6

1

Accordingly, the District Court denied NYCLU’s motion to unseal the compliance

2 reports and declined to vacate its own standing order regarding the sealing of future reports. 5 Id.

3 at *15. NYCLU appeals.6

4

We review the District Court’s decision for abuse of discretion, although, since the First

5 Amendment is implicated, we give the documents and proceedings “close appellate scrutiny.”

6 Newsday LLC v. County of Nassau, 730 F.3d 156, 163 (2d Cir. 2013). Indeed, in such cases, “we

7 have traditionally undertaken an independent review of sealed documents, despite the fact that

8 such a review may raise factual rather than legal issues.” Id.

9

II.

10

The notion that the public should have access to the proceedings and documents of courts

11 is integral to our system of government. To ensure that ours is indeed a government of the

12 people, by the people, and for the people, it is essential that the people themselves have the

13 ability to learn of, monitor, and respond to the actions of their representatives and their

14 representative institutions. This principle, as it applies to courts, has a long history. Indeed, the

1

5

Although the District Court’s decision on NYCLU’s motion to unseal the reports

2 and vacate the standing order regarding the future sealing of reports is an interlocutory

3 order, we have jurisdiction to review it pursuant to the collateral order doctrine. See

4 generally United States v. Graham, 257 F.3d 143, 147 (2d Cir. 2001).

1

6

The United States has also filed a brief urging us to vacate the District Court’s

2 order. Erie County argues that, while we may consider NYCLU’s argument, the United

3 States’ brief is not properly before us since the United States did not file a notice of

4 appeal. A notice of appeal, however, only needed to be filed by NYCLU, since it was the

5 only party against whom the district court ruled. See Fed. R. App. P. 4(a). We therefore

6 consider the United States’ arguments.

7

1 common law right of public access to judicial documents is said to predate even the Constitution 2 itself. See United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“Amodeo I”).

3

As the common law right of public access has developed in this Circuit’s doctrine, our

4 approach to determining whether a document is a judicial document, and therefore one presumed

5 to be publicly accessible, has been to emphasize the role of the document in the judicial process.

6 Thus, in order to decide whether a document is a judicial document protected by the common

7 law right of access, this Court considers whether it is “relevant to the performance of the judicial

8 function and useful in the judicial process.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110,

9 119 (2d Cir. 2006) (internal quotation marks omitted).

10

If we find that a document is a judicial document and therefore that at least a common

11 law presumption of access applies, we must “determine the weight” of the presumption of

12 access. Id. The weight to be given to the presumption of access is “governed by the role of the

13 material at issue in the exercise of Article III judicial power and the resultant value of such

14 information to those monitoring the federal courts.” United States v. Amodeo, 71 F.3d 1044,

15 1049 (2d Cir. 1995) (“Amodeo II ”). “Finally, after determining the weight of the presumption of

16 access, the court must balance competing considerations against [disclosure].” Lugosch, 435

17 F.3d at 120 (internal quotation marks omitted). Only when competing interests outweigh the

18 presumption may access be denied. Id. at 119-20.

19

But, and in a sense more tellingly, our Constitution, and specifically the First

20 Amendment to the Constitution, also protects the public’s right to have access to judicial

21 documents. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004). Indeed, the

8

1 First Amendment protection has been understood to be stronger than its common law ancestor 2 and counterpart. Id. To determine whether this First Amendment right attaches in circumstances 3 such as the one before us, we look, first, to whether “experience and logic” support making the 4 document available to the public. Lugosch, 435 F.3d at 120. That is, we consider (a) whether the 5 documents “have historically been open to the press and general public” (experience) and (b) 6 whether “public access plays a significant positive role in the functioning of the particular 7 process in question” (logic). Id. (internal quotation marks omitted).

8

Once a First Amendment right of access to judicial documents is found, the documents

9 “may be sealed [only] if specific, on the record findings are made demonstrating that closure is

10 essential to preserve higher values and is narrowly tailored to serve that interest.” Id. (internal

11 quotation marks omitted). And, “[b]road and general findings by the trial court . . . are not

12 sufficient to justify closure.” Id. (internal quotation marks omitted).

13

III.

14

Under our precedents, therefore, before determining whether the common law or First

15 Amendment requires that the compliance reports be made accessible to the public, we must

16 consider whether they indeed are judicial documents. See Amodeo I, 44 F.3d at 145 (common

17 law); Hartford Courant, 380 F.3d at 91-92 (First Amendment). We hold, as did the District

18 Court, that the reports are such documents.

19

The focus of our analysis is on whether the compliance reports are “relevant to the

20 performance of the judicial function and useful in the judicial process.” Lugosch, 435 F.3d at 119

9

1 (quoting Amodeo I, 44 F.3d at 145). The conclusion that the reports fulfill this standard flows 2 easily from our holding in Amodeo I, 44 F.3d at 145-46. There, as here, the reports were filed 3 with the District Court by an expert whose duties were to oversee compliance. Id. While the 4 reports in Amodeo I were prepared by a court-appointed officer pursuant to a consent decree, and 5 the compliance consultants here were instead chosen by the parties and appointed pursuant to a 6 settlement agreement, this distinction is of little importance. What matters is that the reports are 7 filed with the District Court and become relevant to its judicial activities. That is, as in Amodeo 8 I, the compliance reports would be considered by the Court for the purpose of ruling on an 9 enforcement motion brought by either of the parties. Id. at 146.

10

Importantly, moreover, the compliance reports could form the basis for the District Court

11 reinstating the civil proceedings sua sponte if the Court believes that the substance of the

12 stipulated order of dismissal is not being fulfilled. The District Court “retains the power to

13 enforce the Stipulated Order of Dismissal.” Joint App’x at 226. As a result, while the Court may

14 be moved by one of the parties to enforce the terms of the order, its power to ensure the

15 fulfillment of the terms of the stipulated order of dismissal is not contingent on such motions by

16 the parties. See, e.g., Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 737 (2d Cir. 2000)

17 (holding that the district court has a “duty to enforce the stipulation that it has approved”);

18 Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir. 1974) (per curiam)

19 (holding that a stipulated order of settlement “was a consent to the exercise of the court’s power

20 to compel compliance”); Limbright v. Hofmeister, 566 F.3d 672, 674-75 (6th Cir. 2009) (“A

21 district court may rely on any basis of jurisdiction to summarily enforce a settlement agreement

22 that produced the dismissal of an earlier federal suit.”); Blue Cross & Blue Shield Ass'n v. Am.

10

1 Express Co., 467 F.3d 634, 638 (7th Cir. 2006) (“As long as [28 U.S.C.] § 1332 supplies 2 authority to decide, the court may act without a fresh complaint.”); cf. Kokkonen v. Guardian 3 Life Ins. Co., 511 U.S. 375, 381 (1994) (noting that if the district court “‘retain[ed] jurisdiction’ 4 over the settlement agreement” then “a breach of the agreement would be a violation of the 5 order, and ancillary jurisdiction to enforce the agreement would therefore exist”).

6

The fact that the District Court has not yet acted sua sponte or adjudicated an

7 enforcement action brought by the parties does not alter our analysis. The presumption of access

8 to judicial documents is “based on the need for federal courts . . . to have a measure of

9 accountability and for the public to have confidence in the administration of justice.” Amodeo II,

10 71 F.3d at 1048. In light of the District Court’s inherent “supervisory power over its own records

11 and files,” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978), even the District Court’s

12 inaction is subject to public accountability. The public’s ability to scrutinize such judicial

13 decision-making helps assure its confidence in the orderly administration of justice. If the reports

14 show progress in compliance, the public can be confident that the judge’s failure to intervene is

15 appropriate; if the reports show worsening conditions, legitimate questions could be raised about

16 the court’s inaction.

17

In light of the role of the compliance reports in any sua sponte action by the District

18 Court, as well as in any enforcement action brought by the parties, the compliance reports are

19 manifestly relevant to the District Court’s performance of its judicial function, and therefore are

20 judicial documents.

21

11

1

IV.

2

Having determined that the reports are judicial documents and therefore that at least a

3 common law presumption of access applies to them, we would ordinarily continue with the

4 common law analysis and determine the weight of the presumption and measure it against

5 competing considerations. See Lugosch, 435 F.3d at 119-20. This case, however, does not

6 require such an approach. Since we find that the compliance reports are subject to a First

7 Amendment right of access, which is stronger and can only be overcome under more stringent

8 circumstances than the common law presumption, see infra Part VI, we need not, and do not,

9 engage in such a common law analysis.

10

V.

11

In this case, a trio of government bodies—Erie County, the Department of Justice, and

12 the District Court for the Western District of New York—are involved in effectuating a

13 settlement agreement to improve conditions at two public correctional institutions. Erie County

14 wishes to keep the reports which measure its progress, or regress, under seal and, therefore, out

15 of public view. Yet every aspect of this litigation is public. The United States Department of

16 Justice is a public agency, which brought a claim before a public court, the District Court for the

17 Western District of New York, arguing that a public government, Erie County, failed to meet

18 constitutional requirements in operating two public institutions, the Erie County correctional

19 facilities. And, critically, although a settlement is now in place, the public court retains

20 jurisdiction over the dispute, and indeed may be moved, or move itself, to reinstitute civil

21 proceedings. In a case where every aspect and angle is public, Erie County seeks, nonetheless, to

12

1 keep the compliance reports under the darkness of a seal. But the First Amendment does not 2 countenance Erie County’s position. Neither experience nor logic supports sealing the 3 documents, and the District Court erred in concluding otherwise.

4

A.

5

In considering “experience,” we focus on whether the documents are ones that “have

6 historically been open to the press and general public.” Hartford Courant, 380 F.3d at 92

7 (internal quotation marks omitted). First, as a baseline matter, we note that the notion of public

8 access to judicial documents is a capacious one: the courts of this country have long recognized a

9 “general right to inspect and copy public records and documents, including judicial records and

10 documents” in part because the public has an interest in “keep[ing] a watchful eye on the

11 workings of public agencies.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597-98 (1978).

12

Second, NYCLU points to several instances where reports like the ones at hand have

13 been accessible to the public. It cites ongoing cases in district courts across the country where

14 the reports of monitors appointed pursuant to consent decrees and settlement agreements in

15 institutional-change litigation are publicly available. See, e.g., United States v. State of New

16 York, No. 10-cv-858 (N.D.N.Y. filed July 14, 2010) (settlement agreement appointing monitors);

17 United States v. City of New York, No. 10-cv-0060 (E.D.N.Y. filed Jan. 7, 2010) (consent

18 judgment appointing monitors); United States v. Cook County, No. 10-cv-029460 (N.D. Ill. filed

19 Dec. 3, 2013) (settlement agreement appointing monitors); Harper v. Fulton County, No. 04-cv-

20 1416 (N.D. Ga. filed Oct. 21, 2013) (consent order approving settlement and appointing

21 monitors). NYCLU also notes that the Supreme Court, in Brown v. Plata, 131 S. Ct. 1910, 1924-

13

1 25 (2011), a case about the constitutional rights of prisoners, relied on publicly available reports 2 regarding California’s compliance with consent decrees.

3

In light of these precedents making available the reports of monitors in institutional-

4 change litigation and settlements, and especially those involving settlement agreements such as

5 the one here, it is clear to us that “experience” supports unsealing the reports in this case.7

6

B.

7

We also find that logic bears out this experience, since “public access plays a significant

8 positive role in the functioning of the particular process in question.” Lugosch, 435 F.3d at 120

9 (internal quotation marks omitted). The issues involved are manifestly ones of public concern

10 and therefore ones which the public has an interest in overseeing. As the Supreme Court

11 succinctly put it, the “conditions in this Nation’s prisons are a matter that is both newsworthy

12 and of great importance.” Pell v. Procunier, 417 U.S. 817, 830 n.7 (1974). Moreover, the

1

7

Erie County argues that, since NYCLU did not raise this “argument” below, we

2 may not consider the fact that an early report pursuant to the suicide prevention

3 agreement was made available to the public. While the fact that this report was made

4 publicly available is not needed for our holding, and hence is not listed among the

5 “experience” examples in the text, we pause to note that Erie County misunderstands our

6 law in this regard. We may, and often do, decline to consider new arguments on appeal.

7 See, e.g., United States v. Lauersen, 648 F.3d 115, 115 (2d Cir. 2011) (per curiam)

8 (declining “to address the arguments” raised for the first time on appeal). But NYCLU’s

9 argument—that experience supports unsealing the reports—is not new on appeal; it was

10 powerfully made below. On appeal, NYCLU offers an additional fact in support of that

11 argument: that one such report was made available pursuant to the previous agreement.

12 This fact, readily available in the record below, is one that we could properly consider if

13 we wished.

14

Similarly, NYCLU’s reference to other cases where the reports of monitors have

15 made been available to the public is not, as Erie County again argues, a new argument

16 made on appeal. Instead, it is an appropriate citation to authority, which is germane to,

17 and part of, NYCLU’s First Amendment argument, made both here and below.

14

1 public’s interest is one that directly relates to the “functioning of governmental processes.” 2 Press-Enter. Co. v. Super. Ct. of California, 478 U.S. 1, 9 (1986). Access to the compliance 3 reports enables the public to understand, monitor, and respond to the progress made towards 4 altering what the Department of Justice, as enforcer of the nation’s laws, alleged were 5 unconstitutional conditions in Erie County correctional facilities. Access also permits the public 6 to evaluate the Court’s role in overseeing that progress. In short, access enables the public to 7 decide whether the Court and the parties—all governmental entities—are doing their jobs in 8 fulfilling the terms of the settlement agreement.

9

In this sense, allowing public access to the documents that inform judicial decisions

10 reminds judges, in the exercise of their power, of the sovereign body which authorizes that

11 power. See, e.g., Amodeo II, 71 F.3d at 1048 (“Monitoring both provides judges with critical

12 views of their work and deters arbitrary judicial behavior.”). These principles apply directly to

13 this case. The United States District Court, and indeed the United States Department of Justice,

14 will read the compliance reports and decide whether or not the terms of the stipulated order are

15 being fulfilled, and if not, what action to take. As these public bodies exercise discretion and

16 authority, it is important that they know that the public has access to the documents which form

17 the basis of their decisions.

18

We therefore hold, in light (i) of the practice of providing access to reports such as these

19 and (ii) of the logic of democratic monitoring of judicial processes, that the First Amendment

20 right of access applies to the compliance reports at issue in this case.

21

15

1

VI.

2

Recognizing that the First Amendment applies and protects the public’s right of access

3 does not end the matter, however. Our precedents hold that even this right can be overcome by

4 “specific, on-the-record findings that higher values necessitate a narrowly tailored sealing.”

5 Lugosch, 435 F.3d at 126.

6

The District Court did not find that a First Amendment right attached and hence did not

7 consider whether it could be overcome in this instance. Accordingly, we would ordinarily

8 remand this question to that Court to engage in whatever additional fact-finding was needed for

9 its resolution. See id., 435 F.3d at 126-27. And this is what the United States, in its brief,

10 recommends that we do. See United States of America Br. at 22.

11

At oral argument, however, Erie County conceded that it would have nothing to offer

12 before the District Court that it had not already proffered. In light of this concession, we take it

13 as given that we have Erie County’s full array of facts and arguments in favor of a narrowly

14 tailored sealing of the compliance reports. We are therefore able to consider the issue directly.

15 Doing so, we conclude that the County’s arguments, and the facts upon which they are premised,

16 cannot justify even a narrowly tailored sealing.

17

In attempting to keep the reports sealed despite their First Amendment protection, the

18 County posits a supervening need for frank, and hence confidential, discussions among the

19 parties. In doing so, it analogizes this case to ones involving settlement negotiations. But that

20 argument ignores the crucial fact that, in the case before us, a settlement has already been

16

1 reached. As the Department of Justice points out, unlike the documents sought in United States 2 v. Glens Falls Newspapers, Inc., 160 F.3d 853, 854 (2d Cir. 1998)—which included draft 3 settlement agreements and attorney work product produced in preparation for settlement—the 4 compliance reports are not documents made in preparation for settlement. In this case, settlement 5 has long since been achieved. And many of the privacy concerns that inhere in pre-settlement 6 negotiations simply do not apply. Thus, to mention just two, there is here no issue of attorney7 client confidentiality or of divulging strategy.

8

Significantly, Erie County, in basing its sealing argument only on the aforementioned

9 settlement contention, does not invoke “privacy interests,” In re New York Times Co., 828 F.2d

10 110, 116 (2d Cir. 1987), or safety concerns, see Lugosch, 435 F.3d at 120, or for that matter, any

11 other value that plausibly might be construed as being “higher” than the First Amendment values

12 at stake.

13

On the basis of this record, we therefore find that the First Amendment right of access

14 has not been overcome, and recognizing the “importance of immediate access where a right to

15 access is found,” id. at 126, we reverse the District Court’s decision and order that the reports be

16 unsealed forthwith. 8

17

18

1

8

In so ordering, we do not, of course, exclude the possibility that the District Court

2 may determine that some redactions may be necessary upon unsealing. See Amodeo I, 44

3 F.3d at 147. At argument, NYCLU conceded as much. For example, redacting medical

4 information identifiable to particular prisoners would be especially appropriate.

17

1

CONCLUSION

2

We REVERSE the District Court’s decision to keep the compliance reports under seal and

3 VACATE its standing order that permitted future reports to be sealed.

18

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff, v.
ERIE COUNTY, NEW YORK,
Defendant.

DECISION AND ORDER 09-CV-849S

I. INTRODUCTION This action was initially commenced by the United States against the Defendant County and several County officials pursuant to the Civil Rights of Institutionalized Persons Act of 1980 (“CRIPA”), 42 U.S.C. § 1997 et seq., following a two year investigation into conditions at the Erie County Holding Center (“ECHC”) and the Erie County Correctional Facility (“ECCF”). Presently before the Court is the motion of New York Civil Liberties Union (“NYCLU”) for an order (1) granting NYCLU leave to intervene in this case; (2) unsealing compliance reports previously filed with this Court; and (3) vacating the standing order permitting future compliance reports to also be filed under seal.
II. BACKGROUND In September 2009, the United States Department of Justice (“DOJ”) commenced the instant action alleging that confinement conditions at ECHC and ECCF violated the federal constitutional rights of inmates incarcerated there. The complaint and the attached “findings” letter detail Defendant’s alleged failures in the areas of protection from harm, environmental safety, medical care, mental health care, and suicide prevention. The DOJ
1

sought declaratory and injunctive relief against the Defendant County and the individually named Defendants in their official capacities.
The parties engaged in extensive mediation efforts, which came to partial fruition in June 2010, when the DOJ moved for entry of a partial stipulated settlement agreement which resolved the suicide prevention and related mental health care claims (the “Suicide Prevention Agreement”). (Docket No. 89.) As part of this stipulation, the parties agreed to select a “Joint Compliance Officer,” or “JCO,” with relevant experience in the field of corrections, mental health care, suicide prevention, or medical care, to “file with the Court and provide the Parties with reports describing the steps taken by the Defendants to implement this Stipulated Settlement and evaluate the extent to which the Defendants are in compliance with each substantive provision of the Stipulated Settlement.” (Suicide Prevention Agreement § IV(A-F).) These reports were to be issued every four months, after a two week comment period afforded to the parties. (Id. § IV(F).) The Court approved this stipulated partial settlement on June 22, 2010, finding that it satisfied the requirements for prospective relief pursuant to 18 U.S.C. § 3626(a)(1)(A). (Docket No. 91.) The parties subsequently stipulated to the selection of Robert L. Trestman, Ph.D., M.D., as the JCO for the Suicide Prevention Agreement. (Docket No. 112.)
Defendants’ first motion to dismiss the Complaint was denied on July 9, 2010. (Docket No. 94.) This Court held that CRIPA was not unconstitutional as applied to Defendants. It was further found, however, that despite technical compliance, the original complaint violated the spirit underlying Rules 8 and 10 of the Federal Rules of Civil Procedure and ordered Plaintiff to file an amended complaint within 14 days. Plaintiff complied. (Docket No. 97.) The amended complaint asserted allegations in the following
2

areas of concern: protection from harm (excessive force under the Eighth and Fourteenth Amendments); medical and mental health care (medical indifference under the Eighth Amendment); and environmental health and safety issues (conditions of confinement under the Eighth and Fourteenth Amendments). (Docket No. 97.)
In November 2010, Defendant served subpoenas on the Erie County Prisoners’ Rights Coalition, the Partnership for the Public Good, Inc., and the League of Women Voters of Buffalo/Niagara, Inc., seeking, among other things, correspondence between these entities and the DOJ. (Docket 214 Exs. A-C.) The present proposed intervenor, NYCLU, represented these parties by bringing a third-party motion to quash these subpoenas in July 2011. (Docket No. 214.) This motion was initially held in abeyance to allow for resolution of pending discovery issues. (Docket No. 219.)
On August 5, 2011, Defendants filed a motion to dismiss the amended complaint as against the individually named Defendants on the ground that claims against these individuals in their official capacities were redundant of claims against the Defendant County. (Docket No. 218.) Prior to resolution of this motion, however, the claims were voluntarily dismissed with prejudice as against the individual defendants pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure on August 18, 2011.1 (Docket Nos. 223-224.) On this same date, the parties jointly moved for entry of a second Stipulated Order of Dismissal (“Stipulated Order”) resolving the remaining protection from harm, provision of medical and mental health treatment, and environmental health and safety
1The stipulation dism issing the action as against the individual defendants is separate and distinct from the Stipulated Order between the DOJ and the Defendant County at issue here. Defendant is therefore correct that NYLCU erroneously included the individual Defendants in the original caption to its m otion (Def’s Mem of Law in Opp’n at 21). This error was acknowledged and rectified in NYCLU’s reply m em orandum . (NYCLU Reply Mem of Law at 11, Docket No. 249.)
3

claims as against the Defendant County. (Docket No. 225). This stipulation recognized that, without any admission of liability on its part, the County, now the only remaining Defendant, would continue developing and implementing policies, practices, and procedures to address concerns at ECHS and ECCF. (Stipulated Order at § I.)
The Stipulated Order states general goals with respect to each of the areas of concern raised, as well as more specific actions for achieving these goals, such as procedure development, additional training and staffing, and enhanced record keeping. For example, with respect to protection from harm, the Stipulated Order provides that “Defendant agrees to continue to develop and implement policies and procedures to provide prisoners with a safe and secure environment and continue to take all reasonable steps to protect them from harm.” (Stipulated Order, § III(A).) More specific actions in support of this general goal include “film[ing] all uses of force where the [Quick Entry Team] is deployed” and “maintain[ing] a log of all video footage of uses of force.” (Id. §III(A)(3)(b).)
In order to monitor compliance, the parties agreed upon two Technical Compliance Consultants (“TCCs”) to independently verify representations by Defendant regarding progress toward compliance with the stipulated goals. (Stipulated Order § VI(A),(I)(5).) The parties chose Jeffrey Metzner, M.D., as TCC for the mental health provisions of the current order as well as all responsibilities previously assigned the JCO for the Suicide Prevention Agreement. (Id. § VI(A).) To that end, the Suicide Prevention agreement was incorporated into the 2011 Stipulated Order, except to the extent the former was modified by the latter. (Id. § III(C)(1).) The parties further agreed on Ronald Shansky, M.D., as TCC for the medical provisions of the Stipulated Order. (Id.) The Stipulated Order requires the TCCS to “file with the Court and provide the Parties with reports describing the steps taken
4

by Defendant to implement this Stipulated Order and evaluate the extent to which Defendant has successfully implemented each substantive provision of the Stipulated Order” every six months, unless otherwise agreed to by the parties in writing. (Stipulated Order § (VI(I)(1).) These reports are required to be submitted to the parties at least two weeks prior to final issuance in order to allow for written comments to be made by either party, with a copy provided to the other. (Stipulated Order § VI(I)(2).)
The Stipulated Order requires that the TCC reports “will be written with due regard for the privacy interests of individual inmates and staff.” (Stipulated Order § VI(I)(2).) Further, although Defendant is not permitted to “assert physician/patient or psychotherapist/patient privileges with respect to the monitoring of the Stipulated Order by the United States and the TCC,” the parties agreed to “treat all personally identifiable information obtained pursuant to this Stipulated Order as confidential.” (Stipulated Order § VI(M).) This stipulation further provides that “[t]he TCC is not a State/County or local agency or an agent thereof, and accordingly the records maintained by the TCC will not be deemed public records subject to public inspection.” (Stipulated Order § VI(G).) Additionally, “[n]o report issued pursuant to this Stipulated Order shall be subject to disclosure nor admissible in any proceeding other than the proceeding related to the enforcement of this Stipulated Order.” (Stipulated Order § VI(H).)
In addition to the TCC’s compliance reports, Defendant is also required to: submit semiannual compliance reports to the United States and the TCC, the first of which will be filed within six (6) months of the Effective Date of this Stipulated Order. Thereafter, the semiannual reports will be filed 15 days after the termination of each six-month period until the Stipulated Order is terminated. [] Each compliance report will describe the actions Defendant has taken
5

during the reporting period to implement this Stipulated Order and will make specific reference to the Stipulated Order provisions being implemented. Such reports shall not be subject to disclosure nor admissible in any other proceeding other than a proceeding related to the enforcement of this Stipulated Order.
(Stipulated Order § V(A-B).) Defendant also agreed to “maintain sufficient records to
document that the provisions of this Stipulated Order are being properly implemented” and
timely provide copies of the same to the DOJ. (Id. § V(D).) “For example, Defendant will
maintain all records or other documents that demonstrate that the County has taken such
actions as described in its compliance reports (e.g., census summaries, policies,
procedures, protocols, training materials, investigations, and incident reports).” (Id.) The
parties agreed that:
Any document provided to a TCC or [Plaintiff] by the County (and any information contained therein) shall not be re-disclosed to any third party unless required by law or authorized by the Court. To the extent that the United States discloses any such document in response to a FOIA request, it will give the County Attorney reasonable written notice of such disclosure. The TCC and the DOJ shall protect confidential or personal privacy information, including but not limited to, protected health information, and shall adhere to all federal, state and local laws, rules or regulations precluding the disclosure of such information.
(Stipulated Order § V(H).)
In an order entered August 26, 2011, this Court determined that the Stipulated
Order satisfied the requirements for prospective relief under the Prison Litigation Reform
Act, 18 U.S.C. § 3626(a)(1)(A), inasmuch as it “is narrowly drawn, and extends no further
than is necessary and is the least intrusive means necessary to correct the violations of the
federal rights at issue.” (Docket No. 227.) The Court ordered that the case be dismissed
and closed, although jurisdiction over the matter would be retained until the substance of
the terms of the Stipulated Order of Dismissal was fulfilled, “and either party may move to
6

reopen this case at any time should issues requiring this Court’s intervention arise.” (Id.; see Stipulated Order § VII(A-B) (agreeing on this Court’s continued jurisdiction for enforcement purposes).)
At the conclusion of the first six-month period in February 2012, Defendant moved to file the first reports of the TCCs, as well as the previously unfiled Joint Compliance Reports resulting from the initial Suicide Prevention Agreement and any future TCC reports, under seal. (Docket No. 231.) Defendant relied on the provisions in both the Suicide Prevention Agreement and the Stipulated Order stating that neither a TCC nor a JCO was “a State/County or local agency or an agent thereof, and accordingly the records maintained by the TCC will not be deemed public records subject to public inspection.” (Docket No. 232 ¶¶ 16-17, 23-25.) The DOJ affirmatively stated that it was not opposing the motion to seal, following which this Court granted the motion. (Docket Nos. 234, 235.) In March 2012, Defendant moved this Court to “expand” the prior order to also allow the filing of Defendant’s semiannual compliance reports to the TCCs and the DOJ under seal. (Docket No. 237.) The DOJ again assented, and the Court granted the motion on March 29, 2012. (Docket Nos. 239, 240.)
In June 2012, proposed intervenor NYCLU filed the present motion to unseal the previously filed compliance reports and vacate the standing order permitting future sealed filings.
III. DISCUSSION A. Intervention
Before reaching the merits of the motion to unseal, the Court must first determine
7

whether NYCLU is permitted to intervene, either as of right or with this Court’s permission, pursuant to Rule 24 of the Federal Rules of Civil Procedure. Defendant opposes intervention, arguing that NYCLU’s motion inadequately identifies the basis for intervention, fails to establish that new interests will be represented by NYCLU if granted, and is untimely. (Def’s Mem of Law in Opp’n at 11-13, Docket No. 248.)
The common law right of public access to judicial documents is well established; indeed, it is said to predate the Constitution. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir.2006); United States v. Amodeo (“Amodeo I”), 44 F.3d 141, 145 (2d Cir. 1995). It is similarly well settled that “the public and the press have a qualified First Amendment right to attend judicial proceedings and to access certain judicial documents.” Lugosch, 435 F.3d at 120 (internal quotation marks omitted); Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 n. 4 (2d Cir. 2004). In order to allow for meaningful assertion of either right, however, “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 609 n. 25, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979)(Powell, J., concurring)); Application of The Hearld Co., 734 F.2d 93, 102 (2d Cir. 1984). Thus, courts have recognized that intervention pursuant to Rule 24 is the proper procedure for a third party to assert the public’s right of access to judicial documents. Diversified Group, Inc. v. Daugerdas, 217 F.R.D. 152, 157 (S.D.N.Y. 2003); see United States v. Aref, 533 F.3d 72, 81 (2d Cir. 2008); Martindell v. Inter’l Tel. & Tel. Corp., 594 F.2d 291, 292 (2d Cir. 1979); Katzman v. Victoria’s Secret Catalogue, 923 F.Supp. 580, 583 (S.D.N.Y. 1996).
8

Defendant does not dispute this, but argues that NYCLU failed to identify the basis on which it is asserting standing under Rule 24, and that NYCLU’s motion contains no assertions that would support intervention either as of right or with the permission of the Court. (Def’s Mem of Law in Opp’n at 12.)
Rule 24(a) allows intervention as of right where the proposed intervenor has an “interest relating to the property or transaction which is the subject of the action.” Fed. R. Civ. P. 24(a)(2). Alternatively, under Rule 24(b), a court may permit intervention where the proposed intervenor “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(2). As recognized by the Seventh Circuit, intervention for the purpose of asserting the public’s interest in public access “does not fit neatly within the literal language of either section.” Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000).
Nonetheless, permissive intervention pursuant to Rule 24(b)(2) has generally been found to be most appropriate for a non-party to intervene in order to assert the right to public access. See Dorsett v. County of Nassau, 289 F.R.D. 54, 71 (E.D.N.Y. 2012); Diversified Group, Inc., 217 F.R.D. at 158; In Re Application of Akron Beacon Journal, No. 94 Civ 1402 (CSH), 1995 WL 234710, *3-4 (S.D.N.Y. Apr. 20, 1995) (citing Martindell, 594 F.2d at 292); see Jessup, 227 F.3d at 998-99; Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992), cert. denied sub nom., International Ins. Co. v. Bridgestone/Firestone, Inc., 506 U.S. 868 (1992). This is because:
[W]hen a district court enters a closure order, the public's interest in open access is at issue and that interest serves as the necessary legal predicate for intervention. Similarly, from the [original p]arties' perspective, their interest in the nondisclosure of the settlement agreement is a central aspect of this litigation. Although the [p]arties take a very different view of the matter of
9

confidentiality, nevertheless, that confidentiality is – in the language of Rule 24(b)(2) – a “question of law ... in common” between the [p]arties and the [proposed intervenor]. Jessup, 227 F.3d at 998-99. Because an intervenor asserting the right of public access is not becoming a party to the underlying merits of a case, further specificity is not required. Beckman Industries, Inc., 966 F.2d at 473-74. This Court’s approval of the confidentiality provisions in the Stipulated Order and the subsequent orders to seal therefore provide the basis for intervention pursuant to Rule 24(b). The subject matter of the present litigation, conditions in the County’s correctional facilities, is a significant matter of public interest. In light of the organization’s stated mission of promoting transparency in public institutions, the Court finds that NYCLU is an appropriate representative of the press and general public in the instant case. (See Aff. of Corey Stoughton, Esq., ¶ 2, Docket No. 244.) Further, both parties agreed to the confidentiality provisions in the stipulated agreements and the DOJ acquiesced to Defendant’s subsequent motions to seal. Thus, contrary to Defendant’s further contention, NYCLU’s proffered concerns are not “merely coextensive to that of the DOJ.” (Def’s Mem of Law in Opp’n at 12-13.) Defendant’s final argument in opposition to intervention is that the motion is untimely. See Fed. R. Civ. P. 24(b) (permitting intervention “on a timely motion”). A determination of the timeliness of a motion to intervene is committed to the sound discretion of the court after consideration of the totality of the circumstances. Dorsett, 289 F.R.D. at 72. Relevant factors for a court to consider include: “(1) how long the applicant had notice of the interest before it made the motion to intervene; (2) prejudice to existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied; and
10

(4) any unusual circumstances militating for or against a finding of timeliness.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994).
Defendant highlights NYCLU’s previous appearance before this Court in the present litigation as a representative of third-party movants at the time the Stipulated Order was entered, (Def’s Mem of Law in Opp’n at 7; see Docket No. 214), which was approximately a year prior to the filing of the present motion for intervention. (Docket No. 244.) Defendant argues that, despite being on notice of the parties’ agreement regarding the confidentiality of the compliance reports, the NYCLU waited until six months after Defendant moved the Court to seal these reports to bring the present motion. Defendant asserts that this delay prejudiced it by foreclosing the opportunity to either withdraw from the Stipulated Order or amend the agreements with the DOJ to eliminate the need to file the reports with the Court.
NYCLU responds that it could not have moved to intervene prior to the parties’ filing of the Stipulated Order containing the confidentiality provisions, and that it acted promptly after pursuing Freedom of Information Law (“FOIL”) requests2 made to, and subsequently denied by, the County. (Stoughton Affirm. ¶¶ 3, 11-13, Exs. G-I.) The present motion to intervene was filed approximately a month after the County denied NYCLU’s administrative FOIL appeal. (Stoughton Affirm. Ex. I (May 18, 2012 denial on administrative appeal); NYCLU’s June 21, 2012 Motion to Intervene and Unseal, Docket No. 244.) The Court gives little weight to any delay caused by NYCLU’s pursuit of a FOIL request. There is no exhaustion requirement prior to asserting the right of public access. Further, it does not
2FOIL is the New York State statutory m echanism by which the public is able to gain access to government records and increase public accountability. See N.Y. Public Officers Law § 84 et seq.; County of Suffolk, N.Y. v. First American Real Estate Solutions, 261 F.3d 179, 185 (2d Cir. 2001).
11

appear that NYCLU completed the state process by pursuing a New York C.P.L.R. Article 78 proceeding in state court regarding the purportedly improper denial. See N.Y. Public Officers Law § 89(4)(b); Schuloff v. Fields, 950 F. Supp. 66, 67-68 (E.D.N.Y. 1997). That proceeding is the proper forum for NYCLU’s FOIL arguments.
Ultimately, however, the Court finds that, under the circumstances of this case, the motion to intervene was timely filed. “ ‘Rule 24(b)’s timeliness requirement is to prevent prejudice in the adjudication of the rights of the existing parties, a concern not present when the existing parties have settled their dispute and intervention is for a collateral purpose.’ ” Diversified Group, Inc., 217 F.R.D. at 158 n. 4 (quoting United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990), cert denied sub nom American Special Risk Ins. Co. v. Rohm & Haas Co., 498 U.S. 1073 (1991)). Thus, “ordinary principles applicable to intervention do not necessarily apply to intervention for the limited purpose of modifying a protective order to gain access to documents.” In Re Application of Akron Beacon Journal, No. 94 Civ 1402 (CSH), 1995 WL 234710, *6; see Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 786-87 (1st Cir. 1988), cert denied, 488 U.S. 1030 (1989). Further, although post judgment intervention is generally disfavored under normal circumstances, Farmland Dairies v. Com’r of N.Y. Dep’t of Agr., 847 F.2d 1038, 1044 (2d Cir. 1988), intervention for the purpose of challenging confidentiality orders is permissible even years after a case has been closed. Diversified Group, Inc., 217 F.R.D. at 157-58 (intervention permitted two years after closure); see E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1047 (D.C. Cir. 1998) (intervention permitted two years after closure); United Nuclear Corp., 905 F.2d at 1427 (intervention permitted three years after closure); see generally Gambale, 377 F.3d at 140-41 (every court retains the supervisory power over
12

its own files and the authority to modify or lift protective orders that it has entered, even
after closure of a case).
This is not to say that no weight should be given to the fact that Defendant has
already relied on the confidentiality provisions in the Stipulated Order and this Court’s
sealing orders by filing the designated documents, only that this is more appropriately
considered in connection with NYCLU’s motion to vacate the sealing orders. NYCLU’s
motion to intervene is therefore granted pursuant to Rule 24(b)(1)(B) for the limited
purpose of considering the motion to unseal.
B. Motion to Unseal Compliance Reports
NYCLU requests that this Court unseal those prior compliance reports3 already filed
and vacate the standing order permitting future sealed filings. It argues that these reports
are judicial documents to which there exists a presumption of public access under the both
common law and the First Amendment. (NYCLU’s Mem of Law at 7-8.) Further, “the
public’s significant interest in understanding these judicial proceedings surrounding an
issue of intense public concern far outweighs any conceivable reason for suppressing the
TCC Reports.” (Id.) In opposing the motion, Defendant contends that the reports at issue
3Although NYCLU consistently refers to the docum ents requested as “TCC Reports,” the docket num bers referenced in its m em orandum are for JCO reports, TCC reports, and Defendant’s own com pliance reports. (See NYCLU Mem of Law at 5; Docket Nos. 228, 238, 241-243.) Because the JCO for the Suicide Prevention Agreem ent perform ed the same function as the m ental health TCC for the Stipulated Order, the Court will jointly refer to these docum ents as the TCC reports. Further, Docket No. 103, also referenced by NYCLU, is not a compliance report, but instead is an attorney declaration in support of a DOJ motion to file docum ents containing sensitive details related to a suicide at the ECHC under seal. (See Docket No. 100.)
It should also be noted that a single report relating to the initial Suicide Prevention Agreem ent was filed by the JCC in February 2011, over a year prior to Defendant’s first motion to seal and apparently without the assistance of either counsel. (Docket No. 174.) NYCLU does not argue that this weighs in favor of unsealing, and this Court concludes that it has no effect on the conclusions reached with respect to the sealing of the subsequently filed reports.
13

are not judicial documents subject to public access, but are instead an extension of settlement negotiations that should not be made subject to disclosure. (Def’s Mem of Law in Opp’n at 13-21.)
1. Common Law and First Amendment Qualified Right of Public Access As noted above, the public has a qualified right of access, under both the common law and the First Amendment, to judicial proceedings and documents. United States v. Sattar, 471 F. Supp. 2d 380, 384 (S.D.N.Y. 2006); Lougsch, 435 F.3d at 119; Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 90 (2d Cir. 2004). “The presumption of access under the common law is based on the need for federal courts, although independent – indeed, particularly because they are independent – to have a measure of accountability and for the public to have confidence in the administration of justice.” United States v. Amodeo (“Amodeo II”), 71 F.3d 1044, 1048 (2d Cir. 1995). “[P]rofessional and public monitoring is an essential feature of democratic control. Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings.” Id. “Although there is a presumption favoring access to judicial records, the fact that a document is a judicial record does not mean that access to it cannot be restricted.” Amodeo I, 44 F.3d at 146 (citing Nixon v. Warner Comm’ns, 435 U.S. 589, 602, 98 S. Ct. 1306, 55 L.Ed.2d 570 (1978)). Indeed, the Second Circuit has recognized that an abundance of documents generated during litigation have no bearing on the exercise of judicial power, and “[u]nlimited access to every item turned up in the course of litigation would be unthinkable.” Amodeo II, 71 F.3d at 1048.
14

“In addition to the common law right of access, it is well established that the public and the press have a ‘qualified First Amendment right to attend judicial proceedings and to access certain judicial documents.’” Lugosch, 435 F.3d at 120 (quoting Hartford Courant Co., 380 F.3d at 91). This right of access extends to “written documents submitted in connection with judicial proceedings that themselves implicate the right of access” Hartford Courant Co., 380 F.3d at 93 (quoting Matter of New York Times, 828 F.2d 110, 114 (2d Cir. 1987)). It is generally understood to be a stronger right of access than that found in the common law. Lugosch, 435 F.3d at 120 (citing Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)); United States v. Strevell, No. 05-CR-477 (GLS), 2009 WL 577910, *4 (N.D.N.Y. Mar. 4, 2009); see Standard Inv. Chartered, Inc. v. Financial Indus. Reg. Auth., Ind., 347 Fed. App’x. 615, 616-617 (2d Cir. 2009). Where found to apply, a court may seal a document “if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 124 (internal quotation marks omitted) (quoting In re New York Time Co., 828 F.2d 110, 116 (2d Cir. 1987)); see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986).
2. Judicial Documents The presumption of access in civil cases, as noted, applies only to “so-called ‘judicial documents.’ ” Securities and Exchange Comm’n v. TheStreet.Com, 273 F.3d 222, 231 (2d Cir. 2001) (quoting Amodeo I, 44 F.3d at 145); Diversified Group, Inc., 217 F.R.D. at 158. Thus, “[b]efore any such common law right can attach, . . . a court must first conclude that any documents at issue are indeed ‘judicial documents.’” Lougsch, 435 F.3d at 119. “[T]he mere filing of a paper or document with the court is insufficient to render that
15

paper a judicial document subject to the right of public access.” Amodeo I, 44 F.3d at 145. Instead, “the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.” Id.
At issue on the instant motion are two types of reports required by the agreements to be kept confidential by the parties and subsequently ordered to remain under seal when filed with this Court. The first consists of the reports of the TCCs, which document the steps taken by Defendant to implement the agreements in the Stipulated Order and are required to be “file[d] with the Court and provide[d to] the Parties” every six months. (Stipulated Order § VI(I)(1); see Suicide Prevention Agreement § IV(F).) The second type is the semiannual compliance reports that Defendant itself is required to submit to the DOJ and the TCCs, but not, pursuant to the plain language of the Stipulated Order, to the Court. (Stipulated Order § V(A).)
Not surprisingly, NYCLU and Defendant4 disagree over whether these reports are ‘judicial documents’ subject to any presumption of access. NYCLU argues that the facts of the instant case are nearly identical to Amodeo I. (NYCLU Mem of Law at 8-11.) There, the Second Circuit found that reports filed by an appointed court officer, charged with investigating union-related corruption and taking appropriate remedial action thereon as part of a consent decree issued in a RICO case, constituted judicial documents. Amodeo I, 44 F.3d at 142, 146. The Court noted that, although the officer was not required to keep the district court informed of her investigation, she chose nonetheless to do so. Id. at 146. Further, the officer was vested with the powers of a Receiver, see Fed. R. Civ. P. 66, the
4The DOJ does not object to either NYCLU’s intervention or the unsealing of the reports, “except to require that confidential inform ation be redacted.” (Docket No. 247.)
16

discharge of whom is a matter within the discretion of the district court. Amodeo I, 44 F.3d at 146. Because the filed reports were part of the record that the district court would be required to review in considering either whether to exercise that discretion or to rule on an enforcement motion brought by a party to the consent decree, the Second Circuit did not “hesitate to classify [the officer’s reports], including the exhibits filed under seal, as judicial documents subject to the common law presumption of public access.” Id.
NYCLU argues that “[t]his Court’s role in the judicial process of enforcing and monitoring the settlement of this litigation is as robust as, if not more robust than, the court’s role in Amodeo I.” (NYCLU’s Mem of Law at 8.) Specifically, NYCLU argues that the reports must be judicial documents because this Court relies on them to discharge its duty to “evaluat[e] the parties’ compliance with the settlement terms, adjudicat[e] enforcement proceedings if necessary, and terminat[e] the Stipulated Order once the parties achieve compliance.” (Id. at 8.)
Defendant correctly argues that NYCLU overstates the role ascribed to the Court by the Stipulated Order. (Def’s Mem of Law in Opp’n at 5, 15-16.) For example, this Court does not have the exclusive authority to appoint, oversee, and if necessary dismiss the TCCs monitoring Defendant’s progress under the agreements. (See NYCLU Reply Mem of Law at 6 (asserting that this is an “exclusive” function of the Court.) Instead, these consultants were chosen by mutual agreement of the parties, and any replacement similarly requires that both parties consent. (Stipulated Order § VI(A-C).) The Court intervenes only upon notice that the parties cannot reach agreement. (Id. § VI(B-C).) Similarly, it is the TCCs that are tasked with monitoring Defendant’s progress toward attaining the goals set forth in the Stipulated Order, and intervention by the Court is not
17

warranted absent notice from the parties. (Id. § VI(1), VII.) Notably, no enforcement motion is permitted under the Stipulated Order unless the allegedly aggrieved party has first given the offending party notice in writing and an opportunity to cure any deficiency. (Id. § VII(B).)
Defendant asserts that the filing of the compliance reports in this case “is a ministerial function that provides a means for the parties to develop a record” in the event that either party is required to bring an enforcement action. (Def’s Mem of Law in Opp’n at 16.) Thus, because the reports are irrelevant to the current performance of any judicial function, Defendant argues that this case is more akin to United States v. Glens Falls Newspapers, Inc., 160 F.3d 853 (2d Cir. 1998). There, the Second Circuit affirmed the district court’s denial of an intervention motion by a newspaper seeking draft settlement agreements and judicial settlement conference documents involving, among other things, remediation of a landfill site under the Comprehensive Environmental Response, Compensation, & Liability Act. Id. at 858.
In doing so, however, the Second Circuit considered both the weight of the presumption of public access and the countervailing factors to be balanced against that weight. Id. at 857-58. As such, the Court implicitly found that the items at issue were judicial documents requiring further analysis. See Lugosch, 435 F.3d at 119-20 (only after it is determined that judicial documents are at issue does a court consider the weight of the presumption of access and any competing considerations). Further, although the compliance reports have not yet been considered by this Court for the purpose of ruling on an enforcement motion, the Second Circuit in Amodeo I specifically gave weight to the fact that the court officer’s report would become part of the relevant record if an
18

enforcement motion was brought. 44 F.3d at 146. Thus, the possibility that a document in a court’s possession will be useful to the performance of the judicial function is relevant in determining if the common law presumption of access attaches.
This case nonetheless presents a close question because the documents at issue are part of a negotiated settlement agreement between the parties. The terms of settlement agreements, and any related supporting exhibits, are generally not deemed judicial records because they document confidential negotiations not subject to judicial approval. See Gambale, 377 F.3d at 143 (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994); Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986); Glens Falls Newspapers, Inc., 160 F.3d at 857; Chapman-Green v. Icahn House West LLC, No. 11 Civ. 1190 (MHD), 2013 WL 474352, *2 (S.D.N.Y. Jan. 24, 2013); Geltzer v. Andersen Worldwide, S.C., No. 05 Civ 3339(GEL), 2007 WL 273526, *1 (S.D.N.Y. Jan. 30, 2007). This general rule, however, does not apply to all settlement agreements:
Written applications for a court ruling that a proposed settlement is fair and appropriate—including the settlement document, which must be submitted for the court to assess such an application—come within the rubric of adjudicative documents, thus triggering an obligation by the litigants to satisfy the demanding standards to overcome the presumption of public access. Chapman-Green, 2013 WL 474352 at *1; see Janus Films, Inc., 801 F.2d at 582; Hens v. Clientlogic Operating Corp., No. 05-CV-381S, 2010 WL 4340919, *2 (W.D.N.Y. Nov. 2, 2010)(Skretny, J.); see also Jessup, 277 F.3d at 929. Here, the compliance reports are requirements of settlement agreements that were required to be, and were in fact, reviewed and approved by this Court pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626. Nonetheless, these reports did not yet exist at that time, therefore the contents thereof cannot be said to have been relevant to the
19

Court’s performance of this assessment. Determinative under these circumstances is the fact that the compliance reports are part of the relevant record on any potential enforcement action, as in Amodeo I. The Court finds that the compliance reports that were or will be filed with this Court under seal are judicial documents entitled to the common law presumption of public access.
3. First Amendment Presumption of Access The conclusion that the compliance reports are judicial documents does not necessarily mean that they also fall within the subset of “certain judicial documents” entitled to the heightened constitutional presumption of access. Lugosch, 435 F.3d at 120 (emphasis added). The Second Circuit has “articulated two different approaches for determining whether ‘the public and the press should receive First Amendment protection in their attempts to access certain judicial documents.’” Lugosch, 435 F.3d at 120 (quoting Hartford Courant Co., 380 F.3d at 92)). Relevant here5 is the “experience and logic” test, whereby a court considers “both whether the documents ‘have historically been open to the press and general public’ and whether ‘public access plays a significant positive role in the functioning of the particular process in question.’” Lugosch, 435 F.3d at 120 (quoting Hartford Courant Co., 380 F.3d at 92). As discussed above, settlement agreements have not been historically open to the press and the general public where judicial review and approval is not required.
5“The second approach considers the extent to which the judicial docum ents are ‘derived from or [are] a necessary corollary of the capacity to attend the relevant proceedings,’” Lugosch, 435 F.3d at 120 (quoting Hartford Courant Co., 380 F.3d at 93). For exam ple, an oral argum ent transcript is a necessary corollary to one’s ability to attend the argum ent in person. Hartford Courant Co., 380 F.3d at 93. As discussed, the com pliance reports are not derived from or a necessary corollary to a judicial proceeding. Indeed, if no enforcement motion is brought by a party, the reports may never be reviewed for the purpose of m aking an adjudication on the m erits. Accordingly, only the experience and logic test is applicable.
20

Nonetheless, because the instant civil case involved a dispute over prison conditions, here the Court was required to ensure that the prospective relief provided for in the stipulation of dismissal was narrowly drawn, extended no further than was necessary, and was the least intrusive means necessary to correct the alleged violations of the federal rights at issue. See 18 U.S.C. § 3626(a)(1). This Court also retained jurisdiction over the matter “until the substance of the terms of the Stipulated Order of Dismissal are fulfilled,” with both parties retaining the right to “move to reopen this case at any time should issues requiring this Court’s intervention arise.” (Order entering Stipulated Order of Dismissal, Docket No. 227.)
However, neither the Suicide Prevention Agreement nor the Stipulated Order were filed under seal; instead both are readily available to the public. Under seal are the assessments of the TCCs and Defendant regarding Defendant’s progress toward the goals stated in the Stipulated Order. The purpose of these compliance reports is to assess Defendant’s progress from two different perspectives: the Defendant’s own reported compliance and the assessment of the neutral TCCs. The reports of the TCCs are provided to both parties two weeks prior to finalization to allow for comment by the DOJ and Defendant. (Stipulated Order §VI(I)(2).) This comment period therefore provides a mechanism to facilitate the parties’ continued discussion regarding prison conditions in the areas specified, which in turn will permit the parties – not this Court – to determine when Defendant has substantially complied with the terms of the Stipulated Order such that termination is warranted. Termination of the Stipulated Order is a matter for the Court only if the parties request intervention.
This Court therefore concludes that the compliance reports are more akin to 21

settlement negotiation documents which have not been traditionally open to the public or the press. Lugosch, 435 F.3d at 120. Although these reports were not created until after the Stipulated Order was entered, they serve the same function as settlement negotiation documents: they allow for frank discussion between the parties, with the benefit of a neutral intermediary, about the proper policies needed to remediate the areas of concern, as well as Defendant’s steps toward compliance with those policies.
With respect to the second prong of the experience and logic test, public access to these documents does not “play a significant positive role in the functioning” of this settlement process. Id. The compliance reports did not exist at the time the Court reviewed the stipulated agreements, and therefore it cannot be said that the substance of these reports had any bearing on the exercise of this Court’s Article III power. See Amodeo II, 71 F.3d at 1048. In fact, Defendant’s six-month self assessment reports, unlike the TCC reports, are not even required by the Stipulated Order to be filed with the Court. (See § V(A).) Further, “access to settlement discussions and documents has no value to those monitoring the exercise of Article III judicial power by the federal courts. The judge cannot act upon these discussions or documents until they are final, and the judge may not be privy to all of them.” Glens Falls Newspapers, Inc., 160 F.3d at 857. Indeed, “[f]ew cases would ever be settled if the press or public were in attendance at a settlement conference or privy to settlement proposals.” Id. at 858. Promising participants confidentiality in settlement negotiations and other alternative dispute resolution processes “ ‘promotes the free flow of information that may result in settlement of a disputed.’ ” In re Teligent, Inc., 640 F.3d 53, 57-58 (2d Cir. 2011) (quoting In re Grand Jury Subpoena Dated Dec. 17, 1996, 148 F.3d 487, 492 (5th Cir. 1998)); see Fields-D’Arpino v. Restaurant Assocs, Inc..
22

39 F. Supp. 2d 412, 417 (S.D.N.Y. 1999) (because of the importance of the existence and perception of mutual fairness, confidentiality in mediation and settlement negotiations is critical).
This Court therefore concludes that the compliance reports, although falling within the broader category of judicial documents, are not part of the subset of documents to which the heightened First Amendment presumption of access attaches.
4. Weight of the Presumption of Access Despite having determined that only the common law presumption of access is applicable to the compliance reports at issue, it is still necessary to determine the weight to be afforded to this presumption by comparing “the interests advanced by the parties in light of the public interest and the duty of the courts.” Amodeo I, 44 F.3d at 146 (internal quotation marks and citation omitted); Lugosch, 435 F.3d at 119. [T]he weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts. Generally, the information will fall somewhere on a continuum from matters that directly affect an adjudication to matters that come within a court’s purview solely to insure their irrelevance. Amodeo II, 71 F.3d at 1048. Where, as here, the documents at issue fall within the middle of this continuum, the determination of what weight should be afforded is similar to the experience and logic test under the qualified First Amendment right of access. Id. at 1049-50. Specifically, a court is required to consider whether “such documents are usually filed with the court and are generally available” to the public. Amodeo II, 71 F.3d at 1050; see Lugosch, 435 F.3d at 120. As concluded above, despite being the result of, as opposed to a precursor to, the
23

Stipulated Order, the compliance reports are akin to settlement negotiations and documents that are afforded a “negligible to nonexistent presumption of access.” Glens Falls Newspapers, Inc., 160 F.3d at 858.
“Once the weight of the presumption is determined, a court must balance competing considerations against it.” Amodeo II, 71 F.3d at 1050. One such countervailing factor is the possibility that release of the sealed materials will likely “impair in a material way the performance of Article III functions,” which includes fostering the settlement of any case or controversy. Glens Falls Newspapers, Inc., 160 F.3d at 857-58. In the instant case, the matters to be resolved by the parties involve numerous areas of prison condition reform, including policies related to sexual abuse prevention, medical care and autonomy, and the provision of appropriate mental health treatment. As with the extensive environmental clean-up at issue in Glens Falls Newspapers, “litigation to the ultimate end [in the instant case] is a blunt instrument for the resolution of the complex problems presented.” 160 F.3d at 856. Frank discussions with staff members regarding past or continuing inadequacies are necessary in order to maintain continued improvement toward the goals outlined in the stipulated order. To that end, the Court credits the declarations of the Director of the Intensive Adult Mental Health Service of the Erie County Department of Mental Health, the Commissioner of the Erie County Department of Mental Health, the Chief Medical Officer for the Erie County Department of Health’s Division of Correctional Health, and the Commissioner of the Erie County Department of Health that confidentiality has allowed personnel to readily communicate perceived inadequacies to the TCCs.6 This,
6NYCLU correctly notes that these declarations rely on alm ost identical language, however, m ore specific statem ents would necessitate disclosure of the very inform ation sought to be sealed.
24

in turn, has allowed the reporting, compliance and improvement process to be as productive as possible, and unsealing would have a chilling effect on progress. (Ranney Decl. ¶¶ 4-9; Endress Decl. ¶¶ 4-9; Heidelberger Decl. ¶¶ 4-9; Burstein Decl. ¶¶ 4-9.)
The issues in this case also evoke the issue of government accountability, and the Court is cognizant that “[t]he public’s interest is particularly legitimate and important where, as in this case, at least one of the parties to the action is a public entity or official.” Pansy, 23 F.3d at 786. “In a perfect world, the public would be kept abreast of all developments in the settlement discussions of lawsuits of public interest. In our world, such disclosure would . . . result in no settlement discussions and no settlements.” Glens Falls Newspapers, Inc., 160 F.3d at 856 (internal quotation marks and citation omitted). In this case, the Court gives significant weight to the fact that the detailed stipulated orders are not themselves under seal. Indeed, although Defendant admits no liability, both orders clearly delineate the prison conditions that the parties agree require remediation, and specifies the policies and procedures to be enacted to alleviate the concerns regarding these conditions. The public is therefore aware of the areas of concern, of the proposed means to alleviate those concerns, and, by virtue of the fact that the parties have not terminated the Stipulated Order, that substantial compliance has not yet been sufficiently maintained with respect to one or more agreed-upon terms. (See Stipulated Order § VIII(B) (prohibiting the parties from terminating the order for at least one year after the creation of a reception housing unit in the ECHC and until Defendant has maintained substantial compliance with the remaining terms for a period of three consecutive sixmonth monitoring periods).
Public debate over these issues is therefore not unduly hampered by this settlement 25

process. Indeed, although the compliance reports themselves are confidential, the Stipulated Order requires the Defendant to “maintain sufficient records to document that the provisions of this Stipulated Order are being properly implemented,” including “all records or other documents that demonstrate that the County has taken such actions as described in its compliance reports (e.g. census summaries, policies, procedures, protocols, training materials, investigations, and incident reports).” (Stipulated Order § V(D).) Members of the public are not precluded from seeking access to these documents to the extent that they fall within the purview of FOIL or its federal counterpart, the Freedom of Information Act ("FOIA"). As NYCLU itself points out, the Stipulated Order anticipates such requests and specifies only that the DOJ provide Defendant reasonable notice prior to disclosure under FOIA of any document provided by Defendant to a TCC or the DOJ. (Stipulated Order § V(H).) Thus, the sealing of the compliance reports, which would not exist but for the stipulated agreements, neither limits “non-party rights that would otherwise prevail” nor constitutes an overly broad application of confidentiality. United States v. Bleznak, 153 F.3d 16, 19 (2d Cir. 1998) (affirming district court order holding that intervenors had no right to audio tapes where, among other things, those tapes would not have existed but for a consent decree); see Schoeps v. Museum of Modern Art, 603 F. Supp. 2d 673, 676 (S.D.N.Y. 2009) (noting that “the broad brush of confidentiality should be applied in a more nuanced way than is typically the case”) (citing Pansy, 23 F.3d at 785-86).
Finally, Defendant relied on the Stipulated Order’s confidentiality provisions that were approved by this Court, as well as the subsequent sealing orders, in filing the compliance reports. Although this reliance would have little weight if those orders were
26

improvidently granted, this Court has determined otherwise; therefore they should not be disturbed absent extraordinary circumstances. See Palmieri v. State of N.Y., 779 F.2d 861, 864-65 (2d Cir. 1985) (citing Fed. Deposit Ins. Corp. v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982); see TheStreet.com, 273 F.3d at 230 (noting that if protective orders were easily modified, parties would be less willing to settle their disputes).

IV. CONCLUSION In light of the public interest in access at stake, the Court grants NYLCU’s motion to the extent it seeks intervention pursuant to Rule 24(b). For the reasons discussed above, the further request that this Court unseal the previously filed compliance reports (Docket Nos. 229, 238, 241-43) and vacate the standing order permitting future compliance reports to also be filed under seal is denied.

V. ORDERS

IT HEREBY IS ORDERED, that NYCLU’s motion to intervene and unseal records

(Docket No. 244) is GRANTED in part and DENIED in part;

FURTHER, because the limited matter for which intervention was granted has been

decided, NYLCU is terminated from the case.

SO ORDERED.

Dated: August 30, 2013 Buffalo, New York

/s/William M. Skretny WILLIAM M. SKRETNY
Chief Judge United States District Court

27

 
 U.S. Department of Justice Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20530

The Honorable Chris Collins County Executive Rath Building - 16th Floor, Rm. 1600 Buffalo, NY 14202
RE: CRIPA Investigation of the Erie County Holding Center and the Erie County Correctional Facility
Dear Mr. Collins:
We write to report the Civil Rights Division's investigative findings of conditions at the Erie County Holding Center ("ECHC") and the Erie County Correctional Facility ("ECCF"). On November 13, 2007, we notified then Erie County Executive Joel Giambra that we had initiated an investigation of these facilities pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, which authorizes the Department of Justice to seek remedies for any pattern or practice of conduct that violates the constitutional rights of incarcerated persons. Initially, we informed Executive Giambra that our investigation would focus on medical care, mental health care, and protection from harm; however, in the course of our investigation, we also became aware of environmental health and sanitation conditions that warranted investigation.
We note that, initially, the County of Erie (the "County") cooperated with our investigation, providing the United States with some of the requested documents from January 1, 2007, through March 1, 2008. Specifically, the County provided ECHC incident reports; some grievances; state and national corrections reports; and ECHC and ECCF policies and procedures. However, the County did not produce corresponding medical reports, which limited our ability to assess the number and severity of injuries that inmates suffered following incidents of self-injurious behavior, attempted suicides, actualized suicides, inmate-on-inmate violence, and excessive use of force by staff.

-

- - -- - - - - - - -_:_.=_.c=.::.:==--=::::c=-:_:::_~.

- --- -- - ------- - --·-

-- --- - ------- ---- ----- --- -=--=----=--==-c··-=-=-- ---

-2-
Initially, we planned to tour ECHC and ECCF in March 2008, but we re-scheduled our tour to August 2008 at the County's request, 'due to the appointment of a new County Attorney. In the months leading up to the scheduled August tour, the County broke off all communication with us despite our repeated outreach and offers to meet and discuss the County's concerns. On June 16, 2008, the new County Attorney notified us that the County would no longer cooperate with our investigation. The County refused, and continues to refuse, to allow us access to the facilities, staff, or inmates.
The County's unreasonable denial of our request for access is especially troubling, given that inmates committed suicide on March 31, 2008, and April 30, 2008, well after we· placed the County.on notice that our investigation would review allegations of deficient suicide prevention measures. If the County had agreed to our proposed investigation procedures, County officials would have had an early opportunity to work directly with our experts and staff, in an effort to improve conditions at the facilities with the hopes of avoiding such incidents. They also would have had an opportunity to address any identified problems on a voluntary, proactive basis at an early stage of this investigation.
Furthermore, while we strongly disagree with the County's decision to deny us access to the facilities, the County's denial of our request for access to Erie County inmates, even during regular visiting hours, is unreasonable and devoid of any legal or penological support. Inmates have a First Amendment right to speak with gov~rnment representatives about the conditions of their confinement and the County has no legitimate penological basis tb deny the inmates access to United States government representatives.
In December 2008, we informed the County of our plans to travel to the County to interview inmates at ECHC and ECCF. The County again denied us access to ECHC and ECCF inmates. Despite the County's refusal to cooperate, during our December 2008 visit to the County of Erie, we were able to communicate with a number' of current and recently transferred ECHC inmates through an arrangement with the United States Marshals Service ("USMS") and various state facilities. 1
We appreciate the assistance provided to us by the New York State Department of Correctional Services and the staff at the Attica, Orleans, and Wende facilities.

-3-

We later learned that the County interviewed some of the ECHC inmates with whom we communicated. We were told that these interviews were videotaped, that the inmates were asked what we had spoken to them about, and that they were required to sign a form. 2 We stressed to the County that such interviews could be construed as retaliation, which is unlawful under CRIPA, but we were given no assurances that the County would desist from such behavior. Notably, we repeated our offer to meet with the County, in order to explain our investigative process, instead of having the County attempt to secure this information from inmates in a manner the inmates might find troubling. Again, our offer
was rejected.

By law, our investigation must proceed regardless of whether officials choose to cooperate. Indeed, when CRIPA was enacted, lawmakers considered the possibility that state and local officials might not cooperate in our federal investigation. See H.R. CONF. REP. 96-897, at 12 (1980), reprinted in 1980 U.S.C.C.A.N. 832, 836. Such non-cooperation is a factor that may be considered adversely when drawing conclusions about a facility. See id. We now draw such an adverse conclusion. 3

\

Consistent with the statutory requirements of CRIPA, we write to advise you of the findings of our investigation,' the

facts supporting them, and the minimum remedial measures that are

necessary to address the deficiencies we have identified. As

described more fully below, we conclude that the conditions of

confinement violate the constitutional rights of inmates confined

at ECHC and ECCF. In particular, we find that, based on

constitutionally deficient practices, the Erie County Sheriff's

Office ("ECSO"), the Jail Management Division ("JMD"), and the

Erie County Department of Mental Health ("ECDMH"), through the

Adult Forensic Mental Health Clinic, 'fail to protect inmates from

serious harm or the risk of serious harm.

2

We requested copies of any videotapes from these

interview sessions and any forms signed by the inmates, but our

request was denied by the County.

3

The County's non-cooperation constitutes only one

factor that we consider in preparing our statutory findings and

recommendations. We also have considered the documentation

provided by the County, reports issued by the National Commission

on Correctional Health Care and the New York State Commission on

Corrections, news articles, and interviews with private

attorneys, inmates, and local law enforcement officers.

-4 -
I . BACKGROUND
A. Facility Description
ECHC is a pre-trial detention center located in Buffalo, New York; ECCF is a correctional facility located in Alden, New York. Both facilities are under the authority of Erie County Sheriff Timothy B. Howard, and are managed by the Superintendent of the County's JMD. 4 ECHC is the second largest pre-trial detention facility in New York. ECHC was built to house 680 inmates with the combination of "pod," open bay "dorm," and traditional linear-type cells. ECCF was built to house 1,070 convicted prisoners, parole violators, and ECHC overflow inmates. Approximately 23,000 people are processed through the two facilities each year, with a daily population of approximately 1,600. The ECSO provides medical and dental services to both facilities, while the Erie County Department of Mental Health Services, through the Adult Forensic Mental Health Clinic, provides the mental health services for both facilities. 5 ECHC and ECCF inmates may also be admitted to the Erie County Medical Center's secure Psychiatric Service Unit, guarded by in-hospital sheriff's deputies.
B. Legal Standards
CRIPA authorizes the Attorney General to investigate and take appropriate action to enforce the constitutional rights of jail inmates and detainees subject to a pattern or practice of unconstitutional conduct or conditions. 42 U.S.C. § 1997.
When a jurisdiction takes a person into custody and holds him there against his will, the Constitution imposes upon the jurisdiction a corresponding duty to assume some responsibility for the inmate's safety and general well-being. County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (citing DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 199-200 (1989)). Generally, county governments must provide persons confined in a jail with reasonably safe conditions of

4

The Superintendent of the Holding Center oversees the

Administration, Security, and Programs of both facilities and

reports directly to the Undersheriff, who reports directly to the

Sheriff.

5

National Commission on Correctional Health Care, Health

Services Study: Erie County Corrections Facilities ("NCCHC 2008

Erie Report"), at 2 (Jan. 10, 2008, revised, Feb. 11, 2008).

-5 -
confinement. See Bell v. Wolfish, 441 U.S. 520 (1979). Specifically, the Eighth and Fourteenth Amendments require that inmates, both pre- and post-trial, "receive adequate food, clothing, shelter, and medical care." Farmer v. Brennan, 511 U.S. 825, 832 (1994); Benjamin v. Fraser, 343 F.3d 35 (2d. Cir. 2003).
The Eighth Amendment protects prisoners from present, continuing, and future harm. See Helling v. McKinney, 509 U.S. 25, 33 (1993). Prison officials have a duty to protect inmates from harm caused by other inmates and from excessive physical force by correctional staff. See Farmer, 511 U.S. at 833; see also, Ayers v. Coughlin, 780 F. 2d 205, 209 (2d Cir. 1986) . The Eighth Amendment further requires that inmates receive access to adequate medical and mental health care. See Farmer, 511 U.S. at 832; Benjamin, 343 F.3d at 50. Deliberate indifference to the serious medical needs of inmates, including pre-trial detainees, constitutes an unnecessary and wanton infliction of pain contrary to contemporary standards of decency and violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996).
The Fourteenth Amendment protects pre-trial detainees from being punished or exposed to conditions or practices not reasonably related to the legitimate governmental objectives. of safety, order, and security. Bell, 441 U.S. at 535-37, 547-48; Benjamin, 343 F.3d at 50. Although the Eighth Amendment does not apply to pre-trial detainees, they "retain at least those constitutional rights . . enjoyed by convicted prisoners [under the Eighth Amendment]." Bell, at 545; Benjamin, 343 F.3d at 50 ("under the Due Process Clause, [pre-trial detainees] may not be punished in any manner - neither cruelly and unusually nor otherwise"); Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996).
1. Protection From Harm
The Eighth and Fourteenth Amendments forbid excessive physical force against inmates and pre-trial detainees. See Hudson v. McMillian, 503 U.S. 1 (1992), Farmer, 511 U.S. at 832; see also, United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999) ("the right of pre-trial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment.") (citing Bell, 441 U.S. at 535 [citations omitted.]). This is true even when the use of force does not result in significant injury. Id. A jail or prison official who inflicts force maliciously and sadistically to cause an inmate harm violates the Eighth and Fourteenth

- 6-
Amendments. See Livingston v. Griffin, 2007 U.S. Dist. Lexis 36941, at *30 (May 21, 2007) (citing Hudson, 503 U.S. at 9); Walsh, 194 F.3d at 47-48 (applying Fourteenth Amendment protections to pre-trial detainees in criminal case against corrections officer accused of violating inmate,s constitutional rights) . Courts have "applied the same Eighth Amendment standards to the deliberate indifference claims of pre-trial · detainees.~~ Patrick v. Amicucci, 2007 WL 840124, at *3 (S.D.N.Y. Mar. 19, 2007) .
In determining whether excessive force was used, courts examine a variety of factors, including:
"[T]he need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. 11
Hudson, 503 U.S. at 7-8.
In determining whether conduct rises to the level of a constitutional violation, the Second Circuit requires that the "prison official have 'knowledge that an inmate faces substantial risk of serious harm and disregard[ed] that risk by failing to take reasonable measures to abate the harm. 111 Patrick, 2007 WL 840124 at *3 (citing Lee v. Artuz, 2000 WL 231083, at *5 (S.D.N.Y. Feb. 29, 2000)), quoting from Hayes v. N.Y. City Dep,t of Corr., 84 F.3d 614, 620 (2d Cir. 1996). The Second Circuit also requires that "an injured inmate . . . show not only that he was exposed to a substantial risk of serious harm but also that the defendant officials acted with deliberate indifference to his health or safety. 11 Patrick, 2007 WL 840124 at *3, (citing Farmer, 511 U.S. at 837). Liability arises where an official knew of and disregarded "an excessive risk to inmate health or safety [and is both] aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference. 11 Id. Prison officials have been found liable when "they are on notice of a substantial risk of serious harm to an inmate and fail to take reasonable steps to protect him [or her] . 11 Id.
The right to be protected from harm includes the right to be reasonably protected from constant threats of violence. See
Farmer, 511 u.s. at 833. This includes protecting inmates from
sexual assault from other inmates and correctional officers. See Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (finding the "sexual abuse of a prisoner by a corrections officer has no

- 7-
legitimate penological purpose, and is 'simply not part of the penalty that criminal offenders pay for their offenses against society."') (citing Farmer, 511 U.S. at 834)) i Villante v. Dep't. of Corr., 786 F.2d 516, 522-23 (2d Cir. 1986) (finding inmate stated a cause of action for deliberate indifference where guards failed to protect inmate from sexual threats and abuse by other inmates) i Rodriguez v. McClenning, 399 F. Supp. 2d 228, 236-238. (S.D.N.Y. 2005) (finding officer's sexual assault of prisoner constituted an Eighth Amendment violation) i Noguera v. Hasty, 2001 WL 243535, at *2 (S.D.N.Y. Mar. 12, 2001) i Colman v. Vasquez, 142 F.Supp. 2d 226, 237 (D.Conn. 2001).
Lastly, "a corrections officer bears an affirmative duty to intercede on behalf of an inmate when the officer witnesses other officers maliciously beating that inmate in violation of the inmate's Eighth [and Fourteenth] Amendment rights." Jones v. HufC 789 F. Supp. 526, 535 (N.D.N.Y. 1992) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir: 1988)) i see also, Walsh, 194 F.3d at 48 (holding "Hudson analysis is applicable to excessive use of force claims brought under the Fourteenth Amendment."). "The duty arises if the officer has a reasonable opportunity to intercede." Id. (citing O'Neill, 839 F.2d at 11).
2. Medical and Mental Health Care
The Constitution requires that prison officials address inmates' serious medical and mental health needs. Estelle, 429 U.S. at 104. Officials act with deliberate indifference when an inmate needs serious medical or mental health care and the officials fail to, or refuse to, obtain or provide that care. Id.i see also, Hathaway v. Coughlin, 37 F. 3d 63 (2d Cir. 1994) i Kaminsky v. Rosenblum, 929 F. 2d. 922 (2d Cir. 1991) i Chance v. Armstrong, 143 F. 3d 698 (2d Cir. 1988). The "deliberate indifference to a prisoner's serious medical needs constitutes the 'unnecessary and wanton infliction of pain'" in violation of the Eighth Amendment. Estelle, at 104 (citation omitted). This includes protecting prisoners whose health problems are "'sufficiently imminent' and 'sure or very likely to cause serious illness and needless suffering in the next week or month or year.'" Young v. Coughlin, 1998 U.S. Dist. LEXIS 764, at *11 (S.D.N.Y. Jan. 29, 1998) (citing Helling, 509 U.S. at 33).
The constitutional responsibility to provide minimally sufficient medical care includes treatment of psychiatric or mental health illnesses. Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir. 1989). Prison officials have an obligation to protect an inmate from self-inflicted injury where the prison official

-8-

knew or had reason to know "of a potential suicide risk to an

inmate .

" Eze v. Higgins, 1996 WL 861935, at *7 (W.D.N.Y.

1996) (citing Hudson, 468 U.S. at 526-27 (1984)). Prison

officials act with a deliberate indifference to the risk of

suicide when they fail "to discover an individual's suicidal

tendencies .

[or] could have discovered and have been aware

of the suicidal tendenci~s, but could be deliberately indifferent

in the manner by which they respond to the recognized risk of

suicide .

" Kelsey v. City of New York, 2006 U.S. Dist.

LEXIS 91977, at *16 (E.D.N.Y. Dec. 18, 2006) (citing Rellergert

v. Cape Girardeau County, 924 F.2d 794, 796 (8th Cir. 1991)).

3. Sanitation

Inmates are constitutionally entitled to environmental conditions that do not pose serious risks to health and safety, including deficient sanitation, inadequate fire safety, inadequate ventilation, and pest infestation. Benjamin, 343 F.3d at 52 (affirming district court findings that "inadequate ventilation, lighting, and exposure to extremes of temperature violated the detainees' constitutional rights") i Harris v. Westchester County Dep't of Corr., 2008 U.S. Dist. LEXIS 28372, at *18 (S.D.N.Y. Apr. 2, 2008) (finding a leaking ceiling an "unsafe prison condition").

In the Second Circuit, "challenges by pre-trial detainees 'to the environmental conditions of their confinement are properly reviewed under the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishment Clause of the Eighth.'" Harris, 2008 U.S. Dist. LEXIS at *17, citing Benjamin, 343 F.3d at 49-50. "Where a pre-trial detainee alleges 'a protracted failure to provide safe prison conditions, the deliberate indifference standard does not require the detainees to show anything more than actual or imminent substantial harm.'" Harris, 2008 U.S. Dist. LEXIS at *17, citing Benjamin, 343 F.3d at 51 (emphasis omitted). Challenges by sentenced inmates to environmental conditions of confinement, however, are protected by the Eighth Amendment, and in order for an inmate to prevail on an environmental conditions of confinement claim, an inmate must meet the deliberate indifference standard. See Hathaway, 37 F.3d
at 66.

II. FINDINGS

The ECSO and JMD's administration of ECHC and ECCF is woefully inadequate and has resulted in a pattern of serious harm to inmates, including death. We find that the County, ECSO, JMD,

- 9-
and ECDMH fail to provide adequate suicide preventioni mental health care i medical care i p·rotection from harmi and safe and sanitary environmental conditions. In making these findings, we are cognizant that the County has received similar notice regarding conditions in ECHC and ECCF from the New York State Commission on Corrections ("NYSCC") and the National Commission on Correctional Health Care ("NCCHC") on multiple occasions, but has yet to remedy these issues. 6
A. Inadequate Suicide Prevention
Constitutional requirements mandate the development of suicide prevention standards. These standards require: (1) an appropriate policy and procedurei (2) education and training for all staff membersi (3) appropriate screening to assess suicide riski (4) appropriate housing for those identified as at riski (5) appropriate supervision, observation, and monitoring of those inmates so identifiedi (6) appropriate referrals to mental health providers and facilitiesi (7) appropriate communication between correctional health care personnel and correctional personneli (8) appropriate intervention addressing procedures of how to handle a suicide in progressi and (9) appropriate notification, reporting, and review if a suicide does occur.
ECHC and ECCF's current suicide prevention practices do not comport with generally accepted standards of correctional mental health care. Although the policies we reviewed appear sound, it is clear by the number of recent suicides and attempted suicides that there are serious problems with how the policy is

6

See, ~~ New York State Commission on Corrections,

Minimum Standards Evaluation - Erie County Jail Management

Division ("NYSCC 2006 Evaluation") (2006) i New York State

Commission on Corrections Erie County Holding Center Cycle 2

Evaluation, Apr. 30, 2007 ("NYSCC ECHC Cycle 2 Evaluation Apr.

2007") i New York State Commission on Corrections Erie County

Holding Center Cycle 2 Evaluation, Aug. 6, 2007 ("NYSCC ECHC

Cycle 2 Evaluation Aug. 2007"); New York State Commission on

Corrections ECHC Phase 2 Evaluation, Apr. 2008; National

Commission on Correctional Health Care, Health Services Study:

Erie County Corrections Facilities ("NCCHC 2008 Erie

Report") (Jan. 10, 2008, revised, Feb. 11, 2008) i and numerous

letters from the NYSCC to Erie officials, cited throughout.

- 10 -

implemented and followed. 7 Moreover, despite a 2008 NCCHC warning, the County continues to house suicidal inmates in unsafe cells that allow an inmate multiple ways to facilitate committing suicide, including: using steel beds, wall plates removed from the wall, accessible grab bars, and bars on windows. 8 ECHC inmates have exploited cell deficiencies, incorporating them into their suicide attempts. Since 2003, at least 23 inmates either committed, or attempted to commit, suicide, or took steps that demonstrated suicidal ideation. Between 2007-2008 there were three suicides and at least ten attempted suicides. Below, we provide examples of the County's inability to supervise inmates, identify inmates at risk for suicide, correct deficiencies in cells that facilitate suicide attempts, and prevent likely
suicide attempts.

•

ECHC inmates have committed suicide by hanging

themselves from air vents using bed sheets. In 2008

alone, two inmates died in such a manner, raising the

total to over 15 inmates who have committed, or

attempted to commit, suicide in a similar fashion since

2002.

•

In the past two years, more than five inmates who

attempted suicide by hanging or self-strangulation were

unsuccessful only because a guard or another inmate

discovered the attempt and cut down the self-made noose

or otherwise removed the fabric from around the

inmate's neck. In one instance, ECHC deputies

discovered a distraught inmate in his cell only after

the rope broke during his attempt to hang himself.

7

For example, the Suicide Prevention Policy requires

that inmates housed in Constant Observation receive

uninterrupted, personal visual observation. Yet, inmates held in

constant observation are still finding ways to hide contraband,

such .as a bullet. Similarly, the policy requires that the

dispensation of psychotropic medication be adequately monitored,

yet one inmate attempted suicide by ingesting another inmate's

medication, while yet another inmate hoarded his medication for

weeks without notice.

NCCHC 2008 Erie Report, supra, n. 5, at 10 (~The cells used to house suicidal inmates were not 'suicide-proof.' There were multiple ways to facilitate committing suicide, including using the steel beds, wall plates that are lifted from the wall, handicapped bars, bars on windows, etc.").

- 11 -

•

In December 2008, an ECHC inmate attempted suicide by

hanging. This was the inmate's third suicide attempt.

•

In March 2008, an ECHC inmate committed suicide by

hanging, despite a warning from the inmate's family

that the inmate could be suicidal.

•

In February 2008, a 17-year-old ECHC inmate attempted

suicide by hanging. Two other inmates grabbed his legs

and successfully untied the sheets from the bars.

•

In November 2007, an ECHC inmate attempted suicide

while under constant observation. Despite the suicide

attempt, ECHC officials released the inmate into

general population, where he again attempted suicide

six days after his earlier attempt.

•

In May 2007, ECHC deputies found an inmate unconscious

on the floor of his cell after he attempted suicide by

ingesting a dangerous quantity of another inmate's

quetiapine. 9 Deputies found a suicide note in his

cell, and ECHC documents do not indicate whether the

inmate ever regained consciousness.

•

In January 2007, an ECHC inmate committed suicide in

view of deputies by diving off a 15-foot railing in the

common area. Upon admission to ECHC, the inmate was

reportedly evaluated by forensic staff and determined

not to be a suicide risk.

In addition to suicides and attempted suicides, we found many examples of inmates who engaged in self-injurious behavior, including banging their heads against the wall, cutting themselves with metal and glass objects, and verbally expressing a desire to die. Documentation provided by the County fails to indicate that these inmates were referred for mental health assessments or further suicide screening. Furthermore, despite prior warnings from the NYSCC, the County's facilities provide
ready access to a number of environmental hazards such as screws,

9

A psychotropic medication used to treat the symptoms of

psychotic conditions such as schizophrenia and bipolar disorder.

- 12 -

nuts, and bolts on chairs that could cause injury or be removed
and used as a weapon. 1° For example:

•

In October 2007, ECHC deputies found an inmate, who had

attempted suicide on a prior occasion, holding a broken

light bulb to his neck. 11

•

In September 2007, deputies witnessed an inmate smash

his cell window and cut his arm with a broken piece of

glass. 12

•

In June 2007, an ECHC inmate verbally threatened

self-harm after he flooded his cell and smeared feces

on himself and the cell wall. Deputies sent the inmate

for a medical examination regarding injury to his eye.

There is no indication in the materials provided by the

County that the inmate received any psychiatric

evaluation.

•

In February 2007, ECHC deputies discovered an inmate

hoarding 38 pills he was to be taking three times each

day to treat high blood pressure. Deputies did not

refer the inmate for a psychiatric evaluation because

the inmate reportedly indicated he did not wish to harm

himself.

The availability of dangerous implements and numerous examples of self-injurious behavior amplify the County's inability to monitor and supervise inmates. The examples also illustrate the County's inability or unwillingness to refer inmates for appropriate mental health treatment. Given the number of suicides and attempted suicides at these facilities, at least five of which occurred following the release of the NCCHC 2008 Erie Report placing the County on notice of such issues, it is evident that County officials are deliberately indifferent and have not taken these incidents or the recommendations of the
NYSCC and NCCHC seriously.

10 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 4; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 6.
11 Subsequently, this inmate was interviewed by forensic staff, who placed the inmate on constant observation.
12 Subsequently, this inmate was interviewed by forensic staff, who placed the inmate on constant observation.

- 13 -
B. Inadequate Mental Health Care
ECDMH fails to provide inmates with adequate mental health care. ECHC and ECCF inmates require mental health assessments and treatment to avoid the unnecessary suffering of acute and chronic episodes of mental illness. Generally accepted correctional mental health care standards require that a physician see an inmate usually before, but clearly shortly after, a prescription for psychotropic medication is written so that the physician can evaluate whether the medication should be maintained and to assess the medication order for proper dosage and effectiveness. Inmates who remain untreated, or who are treated without being seen by a physician, may suffer from a worsening of their symptoms, including suicidal and homicidal thoughts, or from the potentially lethal side effects of medication.
An alarming example of deficient mental health care is the death of inmate Jimmy Roberts. 13 On May 19, 2007, Mr. Roberts died of pneumonia brought on by starvation and dehydration after spending four months in ECHC. ECHC staff ignored Mr. Roberts' deteriorating behavior despite clear signs of mental illness and decompensation, such as splashing urine and spreading feces on his face. The NYSCC investigation of Mr. Roberts' death found that ECHC officials failed to identify Mr. Roberts' medical condition and take the necessary steps to prevent self-injurious behavior. 14 Moreover, the NYSCC cited several incidents that should have alerted the medical staff to Mr. Roberts' decompensation (~, throwing food, rolling ·in feces) . NYSCC also found that despite Mr. Roberts' increasing psychotic behavior, the ECHC physician failed to take any action to arrange for critically needed care. 15 The NYSCC found ECHC's care of Mr. Roberts inadequate, rising to the level of professional misconduct. 16 The NYSCC concluded that the current medical department at the facility is ~incapable of providing medical

13

The name ~Jimmie Roberts" is a pseudonym.

14 New York State Commission on Corrections, Findings in the Matter of the Death of [Jimmie Roberts], Jan. 10, 2008 ( ~NYSCC [Roberts] Report")

15

Id. at 6-9.

16

Id. at 6.

- 14 -
evaluation and treatment" sufficiently to treat inmates who are seriou.sly ill. 17
C. Inadequate Protection From Harm
Corrections officials must take reasonable steps to provide ~humane conditions" of confinement. Farmer, 511 U.S. at 832. Providing humane conditions requires that a corrections system satisfy inmates' basic needs, such as their need for safety. Additionally, jail officials have a duty to take reasonable steps to protect inmates from physical abuse.
To ensure reasonably safe conditions, officials must take measures to prevent the unnecessary and inappropriate use of force by staff. Officials must also take reasonable steps to protect inmates from violence at the hands of other inmates. In addition, officials must provide adequate systems to investigate incidents of harm, including staff misconduct and alleged physical abuse of inmates. Finally, a jail has an obligation to protect vulnerable inmates from harm, such as those who are at risk of suicide or at risk of harm from other inmates. For the reasons set forth below, ECHC and ECCF fail to meet constitutional standards in all of these regards.
1. Deficient Policies and Procedures
a. Overall Content and Structure of ECHC and ECCF's Policies and Procedures
Policies and procedures are the primary means by which jail management communicate their standards and expectations. Thus, policies and procedures should be current, accessible to all correctional officers and staff, and consistent with relevant legal standards and contemporary correctional practices. Typically, correctional institutions have a uniform policy that governs the Jail Administration. The uniform policy may coritain post orders, much like the ECHC Manual contains, that are specific to areas such as intake booking and court hold. Most importantly, however, the uniform policy would provide operational guidance on, inter alia, the use of force, use of restraints, use of chemical agents, suicide prevention, and the grievance process. These uniform policies would be enforced throughout both facilities and all Jail Staff would be trained on one set of operational guidelines. Failure to do so may allow for informal practices to flourish, thus making it difficult to

17

Id. at 7.

- 15 -
monitor the appropriate application of the institution's governing policies.
ECSO provided us with a copy of the Policies and Procedure Manuals (collectively, the "Manuals") for both ECHC ("ECHC Manual") and ECCF ("ECCF Manual"). The ECHC Manual is dated January 29, 2005, while the ECCF Manual is dated October 7, 2003. A review of the Manuals indicates that many sections are outdated, and many have not been updated in several years. For example, the ECCF use of force policy, Policy 04-09-00 (Physical Force/Corporal Punishment), was last updated in 1991. Similarly outdated are ECCF's suicide prevention screening guidelines, 0903-01, updated in 1990; restraint policy, 04-09-01, updated in 1997; and grievance policy, 04-11-00, updated in 1999. ECHC policies are similarly dated (i.e., Use of Firearms/Force Report, JMD 04.03.01, updated in 2002; and Contraband Control, JMD 05-0390, updated in 2003). Notably, in 2004, the ECSO's JMD enacted JMD 02.20.00, requiring the annual review of JMD Policy and Procedures concerning "Classification," "Grievance," and "~uicide Prevention." We are unable to determine, based on the documents that were produced by the County in February 2008 and the County's continued refusal to cooperate with our investigation, whether the County has reviewed or updated these manuals; the date on the materials we received suggests that they have not. Accordingly, we must assume that they have not been updated.
Moreover, the organization of the Manuals is confusing. It is our understanding that the ECSO has custodial responsibilities over both ECHC and ECCF and that the JMD oversees the operation of the facilities. Given this arrangement, it is unclear why there are individual, and dissimilar, manuals for ECHC and ECCF. For example, while the ECCF Manual contains policies on the Use of Force, the ECHC Manual does not, 18 and while Spanish-speaking inmates at ECHC are not provided a translated Inmate Handbook, Spanish-speaking inmates at ECCF are. See infra, Section II.C.9. Similarly, it is unclear why there are different inmate handbooks for each facility. 19 The NYSCC noted this discrepancy in its April 2008 Jail Evaluation, finding deficiencies in the disciplinary sanctions of unsentenced inmates who were housed at ECCF, stating that these inmates who were "transferred to the
18 The ECHC Manual has a Use of Firearms/Force Report Policy, JMD 04.03.01; however, it is less a policy on appropriate uses of force and more a policy on reporting the use of force.
l9 ECHC has an Inmate Handbook and ECCF has an Inmate Code of Conduct. See infra, Section II.C.9.

- 16 -
Holding Center for disciplinary reasons were having their disciplinary hearing at the Holding Center," 20 subject to ECHC's inmate rule book and not the ECCF inmate rule book. It further found that the two rule books differed in classes of violations and sanctions. 21 The NYSCC recommended that JMD "consider developing and implementing a single inmate rule book" for both facilities. 22
b. Deficient Use of Force Policies and Procedures
While the use of force is sometimes necessary in a correctional facility, the Constitution forbids excessive physical force against inmates. A determination of whether force is used appropriately requires an evaluation of the need for the use of force, the relationship between that need and the amount of force used, the seriousness of the threat reasonably believed to exist, and efforts made to temper the severity of a forceful response. Hudson v. McMillian, 503 U.S. 1, 7 (1992). Generally accepted correctional practices provide that appropriate uses of force in a given circumstance should include a continuum of interventions, and that the amount of force used should not be disproportionate to the threat posed by the inmate. Absent exigent circumstances, lesser forms of intervention, such as issuing disciplinary infractions or passive escorts, should be used or considered prior to more serious and forceful interventions. This guidance is typically found in a use of force policy. Failure to provide staff with operational guidance on when the use of force is appropriate is a gross departure from generally accepted correctional standards.
The ECHC's Manual fails to provide operational guidance on the use of force. In contrast with generally accepted corrections practices, ECHC has no operating policy governing the application of force at ECHC, and no system in place to monitor the use of force. The ECHC Manual makes several vague references to a "Response Team," apparently utilized to quell emergency inmate disturbances; however, there is no policy governing the team's assembly. ECHC's use of force and its use of the Response Team, without any operating policies and procedures, fails to
20 New York State Commission of Correction ECHC Phase 2 Evaluation, Apr. 2008, supra, n. 6, at 4.
21
22

- 17 -
provide inmates with sufficient protection from harm and creates a climate where the unfettered use of force is permissible because there are no operating guidelines holding anyone accountable.
While the ECHC Manual makes several vague references to the "Response Team," the Manual itself does not provide a policy describing the composition of this team, how it is assembled, its purpose and specific use, or how members of this team are trained, if at all. It is also unclear what the exact purpose of the Response Team is; however, JMD 04.03.01 provides that a use of force report must be prepared whenever the Response Team is "required to control an inmate situation wherein force may be used to quell the situation." The policy, however, does not explain what is meant by "control" and "inmate situation," nor does it discuss the appropriate or permissible uses of force by the Response Team. See JMD 04.03.01. Moreover, JMD 06.01.02 makes reference to a "secondary response team" that will be assembled in the event of a riot or hostage situation; again, limited guidance is given on the composition of this "secondary response team." See JMD 06.01.02. Employing a special operations team, like the Response Team, that is to be used in emergency situations without operational guidance as to its structure and use, is a gross departure from generally accepted correctional standards.
Our review of the ECHC Manual did not reveal a Use of Force policy that directs Jail Staff as to when the use of force is appropriate, and what types of force should be used. By contrast, as discussed above, the ECCF manual provides guidance on the use of force, albeit dated. See ECCF Manual, Physical Force/Corporal Punishment, 04.09.00. While the ECHC Manual does contain guidance on the planned use of force, Policy JMD 06.01.03, this policy is strictly limited to planned uses of force initiated by the Quick Entry Team ("QET"). Moreover, this policy is located in the Emergency Preparedness section of the ECHC Manual, further limiting its application to situational necessity. The ECHC Manual also contains guidance on the reporting of force; however, this policy fails to provide operational guidance on when the use of force itself is appropriate. See ECSO Use of Firearms/Force Report, JMD 04.03.01. The ECHC Manual should provide written operational guidance on what are legally acceptable uses of force, in keeping with Constitutional, federal, and state guidelines, as well as generally accepted correctional standards. However, the ECHC Manual does not provide any language for when the use of force, absent an emergency situation, is permissible.

- 18 -

2. Excessive Use of Force

Our investigation revealed that inmates at ECHC and ECCF are regularly subjected to inappropriate, excessive and degrading uses of physical force. The following are illustrative examples:

•

Inmates we interviewed consistently reported that ECSO

deputies would take ECHC inmates on "elevator rides,"

during which deputies would reportedly physically

assault inmates. Inmates consistently described

incidents in which deputies would take handcuffed

inmates to an isolated elevator (which was not equipped

with a security camera) where they would be beaten and

had their heads slammed against the elevator walls.

•

In August 2008, an ECHC inmate was handcuffed,

stripped, and cavity searched by a deputy who then used

the same rubber gloves to search other inmates. When

the inmate requested that the deputy change his gloves,

which were dirty with blood and fecal matter, the

deputy struck the inmate on the head and forcibly

performed the search, stating that he "did not have to

do a damn thing."

•

In 2008, according to inmate interviews, ECSO deputies

ordered other inmates to go into the cell of an inmate

who refused to shower, pull the inmate out of the cell,

strip him and wash him on the floor of the pod common

area with rags and a bucket of water.

·

•

In January 2008, ECSO deputies reportedly targeted

inmates who were screaming as a result of the New Year.

Inmates told us that, in the case of one of the

inmates, the deputies punched, kicked, and reportedly

tied a sheet around the inmate's neck, threatening to

hang him. The inmate was then shackled and taken to an

isolation cell, where the deputies continued to punch

and kick him.

•

In August 2007, during the booking process, ECHC

deputies struck a pregnant inmate in the face, threw

her to the ground, and kneed her in the side of her

stomach. When she informed deputies that she was

pregnant, the deputies allegedly replied that they

thought she was fat, not pregnant. The inmate lost her

two front teeth as a result of the assault.

- 19 -

• An ECCF inmate died of a stroke in March 2007, after suffering a brain injury when ECCF deputies smashed his head against a wall. The inmate requested medical help following the incident, but was ignored despite noticeable signs of injury (dragging his foot when walking and continually dropping things) .

•

In April 2006, an ECHC inmate (held in the facility for

urinating in public) was knocked unconscious and

suptained a collapsed lung, fractures to six ribs, and'

a spleen injury (resulting in removal) as a result of a

beating by County deputies. The inmate alleges that

the incident arose from his attempt to air out his cell

from the odor of other inmates' defecation and vomit.

3. Inadequate Reporting of Use of Force

Effective measures to prevent excessive and inappropriate uses of force include the adequate reporting of information to permit the identification of potential problem cases and effective internal investigations. We find that ECHC fails to elicit adequate information about use of force incidents, making management review ineffective. Generally accepted correctional standards require written reports of uses of force. These reports should be submitted to administrative staff for review. Although the County of Erie produced incident reports for ECHC, it did not produce any of the use of force forms that reportedly accompany these reports. The incident reports themselves indicate whether a use of force report was filed under the "Action Taken" section of the Incident Report. While most of the incident reports where force was used indicated that a use of force form was submitted, there were several incidents where force was clearly used, but the submission of a use of force form was not indicated. For example:

•

An October 2007 report indicates that two deputies were

injured subduing an inmate who attempted to strike a

deputy. While the report indicates that the deputies

secured the inmate on the floor with handcuffs, there

is no indication what type or level of force the

deputies used to achieve compliance.

•

Similarly, a September 2007 incident report describing

an incident in which two deputies were injured subduing

an inmate who struck a deputy, indicates only that the

deputies took the inmate to the ground and secured him

in handcuffs. There is no indication what type or

level of force the deputies used to achieve compliance.

- 21 -

assaults, including sexual assaults. In many of the incidents of inmate-on-inmate violence, ECSO deputies on duty were not present, giving inmates ample opportunity to fight. The following examples are illustrative:

•

On December 1, 2007, an inmate was held down by another

inmate and punched and kicked by a third inmate. The

victimized inmate indicated that he was attacked

because he was held on sodomy charges.

•

On April 12, 2007, an inmate was grabbed by the throat

and punched in the face by three other inmates,

suffering a swollen right eye and left cheek as a

result of the attack. According to the County's

records, the deputy on duty was taking a "bathroom

break" when the assault occurred.

•

On. March 28, 2007, deputies discovered an inmate, who

had been in a fight with another inmate, lying on the

floor, bleeding from a head wound.

•

On February 2, 2007, an inmate was stabbed with a

broken broom handle. The deputy on duty reported that

he did not see the assault because he was moving a box

into the elevator at the time.

•

On January 24, 2008, an inmate was sexually harassed

and assaulted by three inmates who pulled his pants

down, slapped him on the buttocks, called him "honey,"

grabbed towards his genitalia in a teasing manner, and

grabbed his nipples. There is no indication from this

incident report whether any of the aggressors were

disciplined for their actions.

ECSO deputies do not appear to consistently intervene to stop inmate violence. There have been several incidents in which deputies either watched an altercation escalate from a verbal disagreement to a physical altercation, or allowed other inmates to break up a fight and detain the inmates until additional
deputies arrived. For example:

•

On November 26, 2007, a deputy witnessed an inmate

throw a chair across the law library at another inmate

because he thought the other inmate was a "snitch."

•

On November 19, 2007, a deputy witnessed two inmates

arguing and then fighting. , He also witnessed a third

inmate join the fight and punch and kick another inmate

- 20 -

•

An August 7, 2007 report indicates that an ECHC inmate

who struck a deputy was secured by the response team,

placed in mechanical restraints, and put into an

isolation cell. However, there is no information on

the force used.to secure the inmate or the length of

time he was restrained, nor is there any indication

whether medical clearance was secured before the inmate

was placed in restraints.

JMD's failure to ensure complete use of force reporting prevents adequate monitoring of the use of force within its facilities. As a result, the ECSO is unable to accurately gauge the amount of force used and whether such force is appropriately used.

4. Inadequate and Ineffective Inmate Supervision

a. Deputy-Encouraged Violence

ECSO deputies npt only fail to protect inmates from· harm, but, as our investigation revealed, they affirmatively place inmates in harm's way by pitting inmates against one another in combat. We have received reports of ECSO deputies relying on inmates to discipline other inmates with force. These inmates, sometimes referred to as the deputies' "pet," receive extra privileges, such as extra meals and hygiene products. Alarmingly, we have learned of ECSO deputies harassing inmates charged with a sexual offense. We have received numerous reports of deputies openly announcing the charges of alleged sexual offenders, including describing inmates as "Rape-Os." Deputies would reportedly announce an inmate's charge in the presence of other inmates and then leave the room, allowing the other inmates an opportunity to physically assault the alleged sexual offender.

b. Inmate-on-Inmate Violence

Insufficient inmate supervision is a serious problem at ECHC and ECCF. The County is well aware of this issue. Undersheriff Brian D. Doyle has publicly stated that ECHC does not have sufficient "security staff." 23 Indeed, our review of the County's own incident reports confirms'this admission. Incident reports revealed that between January 1, 2007 and February 9, 2008, there were over 70 reported incidents of inmate-on-inmate

23 Gene Warner, Inmate Well-Being Comes Under Scrutiny; Medical Care Limited at County Facilities, Buffalo News, Aug. 5, 2007.

- 22 -

in the head. There is no indication in the report
whether this deputy attempted to break up the fight or even intervened during the argument, before it
escalated to a fight.

•

On October 30, 2007, a deputy witnessed an inmate

strike another inmate who had been knocked to the

ground. When the attacking inmate refused the deputy's

order to stop fighting, two other inmates interceded to

restrain the attacker until additional deputies arrived

on the scene.

As the incident reports demonstrate, and as our interviews consistently confirmed, inmates who are not adequately supervised have opportunities to engage in fights. The situation in the County facilities appears so volatile that minor slights appear to instigate physical altercations. We noted numerous instances in which inmates fought one another for inconsequential reasons, such as: one inmate denied another inmate access to a newspaper, an inmate cut ahead of another inmate in the lunch line, and one inmate told another inmate that he had "smelly feet." Each of these exchanges led to fights among inmates. As the above examples demonstrate, ECSO and JMD are not meeting constitutional obligations to provide for the safety and well-being of inmates.

c. Unprofessional and Provocative Attitude Towards Irunates

Establishing a professional environment in a correctional setting is critical to maintaining the safety and security of inmates and staff. In addition to reports that deputies have encouraged inmate violence, we have also learned that deputy supervisors at ECCF have permitted a culture of unprofessional and provocative attitude towards inmates to flourish within the facility. 24

Notably, in June 2008 the NYSCC cited ECCF Jail staff for "unprofessional and provocative attitude toward the inmate population" 25 for posting informational sheets labeled "Frequently Asked Questions" within the dormitories housing pre-trial detainees that contained such comments as "Deputies are here to tell you what to do;" "Deputies decide when you go to

24

Letter from NYSCC to Sheriff Timothy Howard, dated

June 5, 2008, Cycle 3 Evaluation, at 12.

25

- 23 -
exercise;" 26 and "How do you become a Lima unit porter? Don't ask we will ask you. " 27 The NYSCC found these sheets to be unprofessional and that ECSO should view these statements "as an embarrassment to the corrections profession. " 28 Moreover, the NYSCC found that the "condescending tone ... perpetuates a negative work environment ," 29 and the failure of "deputy sheriff supervisors . . . to remove such posting and take further action is unconscionable." 30 These "informational sheets," coupled by the reports of deputy encouraged violence (see Section II.C.4.a, supra) and sexual misconduct (see Section II.C.6, infra) further illustrates a culture that undervalues the safety and well-being of inmates housed within its facility. Indeed, a condescending attitude towards an inmate population may lead security staff to believe that they have an unfettered control over inmates that allow them to engage in unconstitutional behavior, such as encouraging inmate violence and engaging in inappropriate sexual conduct with inmates.
d. Inadequate Division of Supervisory
Responsibility
ECCF houses both pre- and-post-trial inmates. ECSO employs two separate work forces to supervise "unsentenced" and "sentenced" inmates at ECCF. Specifically, deputies are assigned to "unsentenced inmates," while correctional officers are assigned to "sentenced inmates." 31 The NYSCC found this arrangement "jeopardizes the safety and security of staff and inmates at the Correctional Facility. " 32 According to NYSCC, because the security staff are members of two distinct unions, based on their work assignment, there is confusion over which union or security detail has specific control over a particular inmate. Indeed, NYSCC's staff "witnessed members of both unions

26

Id.

27

Id.

28

Id.

29

.Id.

30

Id.

31

Id.

32

Letter from NYSCC to Sheriff Timothy Howard, dated

June 5, 2008, Cycle 3 Evaluation, at 11.

- 24 -
openly debating and arguing [over] which union has authority over an inmate. " 33 The NYSCC further noted that each work force has different break schedules and different work hours, "affect[ing] the lock-in time of inmates during the count." Moreover, while both work forces are "accountable to the Chief and Superintendent of the Correctional Facility," "each union member is only accountable to the supervisors in their respective unions. " 34. Accountability and supervisory responsibility was a noted problem where, for example, "during evening, ·nights, and weekends" the highest ranking employee for deputies "is a.Sergeant" whereas the highest ranking corrections officer is "the, Tour Commander. " 35 This confusion in supervisory responsibilities amplifies the deficiencies in inmate supervision.
5. Inadequate Classification
ECHC and ECCF have an inadequate classification system, and it contributes to unsafe conditions at the facilities. Generally accepted correctional standards require separation of problematic inmates and those who are more vulnerable to violence and abuse from the general population. ECHC and ECCF's failure to do so makes supervision more difficult and increases the risk of harm to both staff and inmates.
The County's classification system is flawed and fails to adequately assess critical factors such as an inmate's criminal history while in custody, escape history, and likelihood of victimization. While the County's classification instrument does identify these ·areas, the JMD fails to provide operational guidance on how to address such issues. As the NYSCC noted, this is a major concern because the classification instrument influences how inmates are classified at ECHC and ECCF; "the quality of any classification determination and subsequent housing assignment is suspect" because "classification reviews and housing assignments are substantially based on outcomes of a flawed classification system." 36 While officials at ECHC and ECCF cannot be expected to prevent all altercations between inmates, the Constitution requires correctional officers and County officials to take reasonable steps to protect inmates

33

Id.

34

Id.

35

Id.

36 NYSCC 2006 Evaluation, supra, n. 6, at 21, 24.

- 25 -

from violence. Disturbingly, the County was made aware of the inadequacies of its classification through an April 2007 NYSCC report, followed by an August 2007 NYSCC report indicating that the issues remained unaddressed. 37

As an example of the problems that an inadequate classification system can lead to, we learned of a situation in August 2008 in which a 16 year-old boy was reportedly placed in the "bullpen" at ECHC with adults. Placed among an adult population, this vulnerable youth was reportedly attacked and sexually assaulted in the middle of the night.

6. Sexual Misconduct

Our review of investigative reports revealed incidents of sexual misconduct at ECHC and ECCF resulting from staff-on-inmate and inmate-on-inmate interaction. For example:

•

On September 16, 2008, a male ECCF deputy resigned

after engaging in inappropriate sexual conduct with a

female inmate.

•

A male ECCF deputy reportedly sexually harassed several

inmates in his unit by staring at the male inmates

while they were in the shower. This deputy reportedly

engaged in this conduct frequently and regularly. In

at least one instance, the deputy placed his hand on an

inmate who attempted to leave the shower. The deputy

reportedly admired the inmate's physique and told him,

"we should work out together."

•

A male ECCF deputy reportedly engaged in lewd conduct

with an inmate, placing his fingers through his uniform

pants zipper to simulate fellatio and asking the inmate

"do you want to suck it?"

•

On September 9, 2007, a female inmate accused a male

deputy of rape. The inmate was sent to the hospital

and subsequently moved to a different unit within ECHC.

There is no indication of whether an investigation was

conducted following the report of rape, nor whether the

deputy was, or would be, moved from the women's ward

while the charges were being investigated.

37 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 5; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 8.

- 26 -
7. Contraband and Vandalism
Another indicator of inadequate inmate supervision is the amount of dangerous contraband recovered from the housing units and the ease with which inmates can fabricate homemade weapons. Due to the dilapidated condition of scores of cells 1 shower areas 1 and various dayroom features 1 inmates have ample material for fabricating weapons 1 including floor tiles 1 metal from light fixtures 1 metal from the ventilation system/ glass from cell light bulbs 1 electrical wiring 1 and plumbing fixtures. Inmates have been found with shanks of varying size that are made of broken glass and metal rods. Inmates have also been found with handcuff keys and a syringe 1 and in March 2007 an inmate handed deput~es a 40-caliber hollow point bullet he found under his cellmate 1 s bed. At the time 1 both inmates were assigned to a cell designate? for "constant observation. 11 While it is virtually impossible for any correctional facility to completely deter inmates from obtaining materials for weapons 1 the problem at ECHC and ECCF is exacerbated by inadequate supervision.
8. Grievance System
An inmate grievance system is a fundamental element of a functional jail system1 intended to provide a mechanism for allowing inmates to raise concerns and issues to the administration. If viewed as credible by inmates 1 it can also serve as a source of intelligence to staff regarding potential security breaches as well as staff excessive force or other misconduct. The grievance system should be readily accessible to all inmates. Inmates should be able to file their grievances in a secure and confidential manner and without the threat of reprisals. Staff responsible for answering inmate grievances should do it in a ·responsive and prompt manner. We note a number of serious deficiencies with the inmate grievance process at ECHC and ECCF.
The grievance system at ECHC and ECCF is inadequate and open to abuse. NYSCC questioned the integrity of the grievance program1 finding the system informal 1 the policies inadequate/ and jail officials unwilling to investigate allegations or quick to categorize grievances as disciplinary and therefore non-grievable 1 even when they were. 38 We note that the NYSCC has cited the County for such problems in 2007 and 2008. Because the
38 See generally NYSCC ECHC Cycle 2 Evaluation Aug. 2007 1 supra 1 n. 6 1 at 6i NYSCC ECHC Cycle 2 Evaluation Apr. 2007 1 supra 1 n. 6 1 at lOi NYSCC 2006 Evaluation 1 supra 1 n. 6 1 at 28-33.

- 27 -
County provided us with only a very limited number of grievances for review, it is unclear whether the County has remedied these deficiencies. Therefore, we must conclude that the NYSCC findings remain unremedied. In June 2008, the NYSCC found that no grievances had been filed by pre-trial detainees housed at ECCF. 39 This clearly indicates that the grievance system is not functional, thus depriving the JMD of a valuable source of information concerning questionable constitutional treatment.
One partial explanation for this is the bifurcated grievance system that the JMD employs. Specifically, inmates are ins.tructed to utilize an informal grievance process that encourages inmates to raise their grievance with Jail Staff and allow Jail Staff an opportunity to informally resolve the grievance, rather than submit a formal grievance that is reviewed by the grievance officer. Although inmates are told that they may file a formal written grievance at any time, it is impossible for JMD to account for whether a request for a formal grievance is actually met. Encouraging an inmate to pursue a grievance informally can be problematic in some circumstances, especially in those instances in which unlawful actions have occurred. Inmates who may have been subjected to unlawful conduct will, most likely, be reluctant to seek resolution from those who may have witnessed or been involved in the very actions that would be the basis for the grievance. The ECSO's failure to monitor the application of the grievance system makes it deliberately indifferent to serious allegations of force, harassment, and medical care to be ignored. Numerous inmates reported submitting a grievance, only to have it taken out of the mail slot and destroyed by deputies.
9. Access to Infor.mation
Generally accepted correctional standards require that newly admitted inmates receive an opportunity to learn about the facility rules and regulations, services that are available, policies and procedures that affect the inmate, and facility schedules. Each inmate should receive a facility handbook, containing all the relevant information, and should have an opportunity to have the information explained to him or her if the inmate cannot read. Typically, facilities have an orientation procedure as a part of the intake processing.
39 Letter from NYSCC to Sheriff Timothy Howard, dated June 5, 2008, Cycle 3 Evaluation, at 9.

- 28 -
It is our understanding that inmates are provided a copy of either the ECHC Inmate Handbook or the ECCF Code of Conduct upon arrival at the respective facility. However, these handbooks are not necessarily made available in Spanish. While ECCF offers a Spanish translation of the ECCF Code of Conduct, the translated version we received in February 2008 was last updated on November 20, 1992; the English version was revised on August 21, 2007. The County of Erie did not produce a Spanish translated version of the ECHC Inmate Handbook in response to our request. In order for inmates to avail themselves of the programs a facility offers or familiarize themselves with the rules and regulations within a given facility, to which they will be held accountable, inmates must be made aware of facility rules and protocols. Failure to do so is inconsistent with generally accepted correctional standards .
.D. Inadequate Medical Care
ECHC and ECCF officials are responsible for providing adequate medical care to inmates. A jail may not deny or intentionally interfere with medical treatment. A delay in providing medical treatment may be so significant that it amounts to a denial of treatment. Our investigation revealed that medical care provided at ECHC and ECCF falls below constitutionally required standards of care.
One key deficiency is the lack of on-site health care administrators to manage healthcare services at the facilities. Although a physician is assigned to all Erie County Detention facilities, the physician does not monitor the ~appropriateness, timeliness and responsiveness of care and treatment or review[] the recommendations for treatment made by health care providers in the community," and ~[t]he physician is not involved in quality improvement reviews, training staff, or reviewing policy and procedures. " 40 This level of oversight is critically important to ensure constitutionally adequate medical care. For example, adequate oversight and management would identify problems in inmate medical records, provide advice on training, and assist in the development of policies that are consistent with generally accepted correctional healthcare standards. Without this oversight, it is impossible for ECSO and JMD to attest to the adequacy of medical care within their facilities. Indeed, the NCCHC could not adequately determine the quality of
40 NCCHC 2008 Erie Report, supra, n. 5, at 8.

- 29 -
health care for its 2008 review{ because the inmate health records .were incomplete. 41
The administration of health care services in ECHC and ECCF is inadequate{ as there are no quality improvement programs or monitoring procedures in place to internally assess the quality of heath care at the facilities. 42 Moreover{ ECHC and ECCF medical policies and procedures fail to provide staff operational guidance on quality of care. 43 The NYSCC cited both the ECHC and ECCF in 2007 and 2008 for violating state law and employing licensed practical nurses44 ("LPN") without the direction or supervision of a registered nurse{ as required by state law. 45 Specifically{ the NYSCC cited the "incompetent assessment" of an LPN for returning inmate John Jackson 1 46 who was suffering from congestive heart failure{ to his cell -- Mr. Jackson later

41

Id. at 7.

42

Id. at 9.

43

Id. at 8. NCCHC noted that the policies were "under

revision using the NCCHC Standards to revise the manual."

(Emphasis in the original) .

44

LPNs care for people who are sick 1 injured 1

convalescent{ or disabled under the direction of physicians and

registered nurses. LPNs are not to perform ·"physical assessments

of patients" or make "independent clinical decisions [or] patient

dispositions without direction from a registered professional

nurse or licensed physician." Letter from the NYSCC to Sheriff

Timothy Howard{ dated Mar. 29 1 2007 (regarding the use of LPNs at

ECCF 1 citing Article 139 1 New York State Education Lawf Section

6902) .

45 Letter from the NYSCC to Sheriff Timothy Howard 1 dated May 281 2008 (regarding the use of LPNs at ECHC) i Letter from the NYSCC to Sheriff Timothy Howard{ dated Mar. 29 1 2007 (regarding the use of LPNs at ECCFI citing Article 139 1 New York State Education Law 1 Section 6902) i Letter from the NYSCC to Anthony J. Billittier III 1 M.D. 1 Commissioner{ Erie County Department of Health{ dated Mar. 29 1 2007 (regarding the death of inmate [John
Jackson]).

46 The name "John Jackson" is a pseudonym.

- 30 -
died. 47 Following an investigation into Mr. Jackson's death, the NYSCC found that the use of LPNs at ECCF, without the supervision of a registered nurse, was "commonplace. " 48 The NYSCC also criticized ECSO's response to their letter notifying the Jail that the "medical care that Mr. Jackson received was negligent and inadequate. " 49 The NYSCC' s Medical Review Board found that ECSO's "flagrantly indifferent and dismissive attitude in response to a critical incident with a fatal outcome and to the requirements of state law and regulations are in no small part causative factors in such outcomes." 50 In May 2008, a little over a year after this finding, the NYSCC once again cited ECSO for similar professional misconduct. This time, ECHC was cited for employing LPNs without adequate supervision. 51
Through our review of incident reports, documents provided by the County, and recent state oversight reports, we find ECHC and ECCF document management of inmate medical records poor and often incomplete. We note that these problems have persisted for years, despite the NYSCC placing the County on notice of such deficiencies since 2005. 52 As recently as early 2008, th~ NCCHC similarly concluded that the County has not addressed this issue. 53 In addition to the 2008 NCCHC finding, we draw

47

Letter from the NYSCC to Sheriff Timothy Howard, dated

Mar. 29, 2007 (finding the ECSO "summarily disregarded the facts

that the medical care that Mr. [Jackson] received was negligent

and inadequate"); Letter from the NYSCC to Anthony J. Billittier

III, M.D., Commissioner, Erie County Department of Health, dated

Mar . 29 , 2 007 .

48

Letter from the NYSCC to Anthony J. Billittier III, MD,

Commissioner, Erie County Department of Health, dated Mar. 29,

2007.

49

Letter from the NYSCC to Sheriff Timothy Howard, dated

Mar . 2 9 , 2 007 .

50

51

Letter from the NYSCC to Sheriff Timothy Howard, dated

May 28, 2008.

52

Letter from the NYSCC to Sheriff Timothy Howard, dated

Sept. 27, 2005 (citing deficiencies in the maintenance of inmate

medical records) .

53

NCCHC 2008 Erie Report, supra, n. 5, at 7, 24-25.

- 31 -

additional negative inferences from the County's lack of cooperation with our investigation by failure to provide us with the requested inmate medical documents and access to the facilities.

Inmates at ECHC and ECCF suffering from serious medical conditions require continual observation and consistent treatment and care in order to protect them from harm. The following examples illustrate that inmates at these facilities are not receiving adequate medical care.

•

In December 2007 and January 2008, four inmates

suffered multiple seizures. At least two of the

inmates were told to sleep on the floor, and there is

no indication that any of the inmates received

medication after being treated at the hospital. One of

the four inmates with a seizure history was transferred

to the hospital after deputies found him lying

unresponsive on the floor. An additional inmate, with

a seizure history prior to detention, was found shaking

on the floor of her cell and was not immediately sent

for a medical evaluation.

•

In April 2007, ECCF was cited for providing inadequate

dental care to an inmate suffering from pain and a

sensitivity to food and liquids. 54 The Citizens Policy

and Complaint Review Council found that ECCF took too

long to respond to the inmate's request to see a doctor

regarding his pain, finding 21 days unreasonably

long. 55

•

In March 2007, an ECHC nurse, while delivering

prescribed medication to an inmate, discovered that the

inmate had died due to unknown causes. Earlier in the

day, the inmate had refused food and requested that his

cell window be opened.

1.- Inadequate Administration of Medication

It appears that ECHC and ECCF nursing staff who store and administer medication may be untrained in critical areas of security, accountability, common side effects of medications and

54 Letter from the NYSCC to Sheriff Timothy Howard, dated Apr. 24, 2007.
55

- 32 -

documentation of administration of medicines. Alarmingly, the County was made aware of this deficiency through NYSCC evaluations in 2005 and 2006, as well as the NCCHC 2008 evaluation. 56 Further, we received consistent reports irom ECCF inmates that County deputies withhold inmate medication as a source of intimidation or punishment. The following examples illustrate the gravity of the situation:

•

Despite receiving warnings from State oversight

agencies as recently as 2008, nursing staff fail to

ensure that inmates swallow their medication and fail

to check inmate identification prior to administering

medication. We reviewed·incidents from 2007 in which

an inmate attempted suicide by ingesting another

inmate's psychotropic medication; another inmate

hoarded his medicat.ion for several weeks before

deputies located it on his shelf; and a third inmate

admittedly faked a seizure in order to obtain his

prescription medication.

•

The NYSCC's review found controlled substances "placed

in a paper bag and stored in the narcotic cabinet after

they have been discontinued or when the inmate has been

discharged ... [and that]

[t]hese controlled

substances are not counted each shift," in violation of

Federal and State laws. 57

56 Letter from the NYSCC to Sheriff Timothy Howard, dated July 17, 2006 ("There is an inadequate system for the management of pharmaceuticals, including controlled substances"); Letter from NYSCC to Sheriff Patrick Gallivan, dated Apr. 18, 2005 (citing ECSO for not screening detainees); see also, Letter from the NYSCC to Sheriff Patrick Gallivan, dated Feb. 22, 2005 and Letter from the NYSCC to Sheriff Timothy Howard, dated Sept. 27, 2005 (both addressing the inadequacy of ECHC's management of pharmaceuticals) .
57 Letter from the NYSCC to Sheriff Timothy Howard, dated July 17, 2006. In February 2005 ECSD was cited for leaving "two large boxes of controlled substances unattended in an unsecured area in the medical unit," in violation of Federal and State laws that require the restriction of controlled substances "to a secure area under double lock." Letter from the NYSCC to Sheriff Patrick Gallivan, dated Feb. 22, 2005.

- 33 -
The above. examples indicate that procedures for medication administration at the ECHC and ECCF are not ·consistent with generally accepted correctional standards.
2. Inadequate Infection Control
ECHC and ECCF fail to adequately treat, contain, and manage infectious disease. ECHC and ECCF's management of Tuberculosis ( "TB") , 58 Methicillin-resistant Staphylococcus aureus ( "MRSA") , 59 and other infectious diseases deviates from generally accepted correctional medical standards. This failure is dangerous and places inmates, staff, and the community at unnecessary risk of serious health problems.
Generally accepted correctional standards for the management of communicable diseases in correctional facilities require the development of a management plan. This plan, at a minimum, should address the screening, diagnos1s, and treatment of HIV/AIDS; Sexually Transmitted Diseases; Hepatitis; MRSA; TB; and outbreaks of communicable diseases. ECHC and ECCF, however, have no written exposure control plan approved by the responsible physician. 60 The lack of a written exposure control plan has resulted in deficiencies related to the containment and treatment of TB and MRSA. For example, the nursing staff at ECHC have confirmed that TB PPD testing is not performed on detainees at
58 TB is a life threatening respiratory ailment commonly found in correctional facilities. TB is prevalent in correctional facilities because of poor circulation or inadequate ventilation, and the close quarters of a transient population.
59 MRSA is a potentially dangerous drug-resistant bacteria that can cause serious systemic illness, permanent disfigurement, and death. A MRSA infection is sometimes confused by detainees and medical staff as a spider or insect bite, causing treatment to be delayed while the infection has time to worsen or spread. See http://www.aafp.org/fpr/20041100/lO.html. MRSA is resistant to common antibiotics, such as methicillin, oxacillin, penicillin, and amoxicillin. MRSA is almost always spread by \direct physical contact. However, spread may also occur through indirect contact by touching objects such as towels, sheets, wound dressings, and clothes. MRSA can be difficult to treat and can progress to life-threatening blood or bone infections. See MedicineNet.com, http://www.medicinenet.com/staph_infection/page2.htm.
60 NCCHC 2008 Erie Report, supra, n. 5, at 10.

- 34 -
the Holding Center, in contradiction to generally accepted correctional medical standards. 61 I~deed, we have received numerous reports from inmates housed at ECHC between 2007 and 2008, confirming that they were not tested for TB upon arrival at the facility. Similarly deficient is ECHC's and ECCF's medical staffs' failure to identify symptoms clinically associated with a MRSA infection (~, red bumps, rashes, and the. "spider bite") . We have received numerous reports from inmates held at these facilities who exhibited commonly known signs associated with MRSA and did not receive treatment.
Moreover, jail medical staff not only fail to screen inmates when they arrive at the facility and provide adequate surveillance of infectious diseases; medical staff also do not provide discharge planning, therefore providing no monitoring for inmates with communicable or infectious diseases, understood to be a basic part of generally accepted correctional practices. 62
E. Environmental Health and Safety Deficiencies
ECHC has severe environmental health and safety problems at numerous levels of operation. 63 Despite repeated NYSCC citations for poor sanitation and maintenance, ECSO and JMD have repeatedly failed to correct the problems. In 2007, NYSCC found maintenance and sanitation categorically inadequate throughout ECHC, exposing inmates and staff to unhealthy and unsafe conditions. State regulators cited ECSO and JMD on several occasions for overall poor sanitation, finding sanitation conditions "deplorable," with walls covered in toothpaste and cell bars covered in towels

61 Letter from NYSCC to Sheriff Timothy Howard, dated Oct. 10, 2007; Letter from NYSCC to Sheriff Patrick Gallivan,
dated Apr. 18, 2005.

62 NCCHC 2008 Erie Report, supra, n. 5, at 10.

63

Given our limited access to inmates held at ECCF, we

are unable to assess whether similar sanitation problems exist at

ECCF to the degree to which they exist at ECHC. We have received

reports, however, that conditions at ECCF are also unsanitary.

- 35 -
and sheets. 64 NYSCC staff, for example, found a significant accumulation of Styrofoam food trays and other clutter in the cells. This is a serious problem, as it can attract insects and other vermin, as well as allow for the spread of disease. Maintenance and sanitation are categorically inadequate throughout the facility, exposing inmates and staff to unhealthy and unsafe environments as a result. We learned of one inmate who indicated he was housed, for at least one month, in an ECHC cell with four inches of standing water due to toilet flooding.
In a correctional setting where inmates and staff are dependent on maintenance staff for their water, heat, lighting, and ventilation, it is expected that these issues would be addressed in a timely manner in order to reduce risks of illness and injury to inmates and staff alike. That is not the case here. NYSCC has cited ECSO and JMD for electrical hazards that neither correctional officers nor maintenance staff seemed to be concerned about, despite the potential for harm being readily apparent. In both April and August 2007, the NYSCC found ECHC supervisors were "not holding staff accountable for the sanitation of their assigned housing areas. " 65 Critical sanitation deficiencies included the failure of jail staff to properly secure sanitation equipment and supplies when not in use. Inmates have used sanitation equipment, like a broom, as a weapon. In one case, the handle was broken and used to stab another inmate.
ECSO and JMD were also cited for poor facility maintenance. TheNYSCC found the padding and cushion material on chairs in the day room were torn or removed, exposing screws, nuts, and bolts that could be used to cause injury.
Redacted for Public Posting - Sensitive Security Information
64 NYSCC ECHC;Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 5; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 9. The covering of cell bars with towels and sheets results not only in poor sanitation but also in security risks, as correctional officers are unable to see intb cells when the bars are covered with towels.
65 NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 9; NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 5.

- 36 -
This is a serious security risk that should be correcte 1mmediately.
Laundry services at ECHC and ECCF are similarly inadequate. As of August 2007, "[i]nmates [were] required to either wash their facility-issued and/or personally owned undergarment in a cell sink or arrange for the pick-up and washing of these items by family or friends." 67 This poses a serious problem, as soiled and/or improperly washed clothing can retain bacteria and other contagion that can cause infection or spread disease. Moreover, inmates are forced to dry their clothes by hanging them in their cells, thereby obstructing a deputy's view into the cell, thus compromising security. Lastly, the NYSCC noted that no clothing exchange was provided to inmates, as required under New York law. 68
III. RECOMMENDED REMEDIAL MEASURES
In order to rectify the identified deficiencies and protect the constitutional rights of inmates confined at ECHC and ECCF, ECSO and JMD should implement, at a minimum, the following remedial measures:
A. Suicide Prevention Measures
1. Provide adequate treatment for inmates with self-injurious behavior.
67 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 4. Again, this inadequacy in sanitation also represents a security risk.
68 NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 4; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 7; NYSCC 2006 Evaluation, supra, n. 6, at 13.

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2. Develop policies and procedures to ensure appropriate management of suicidal inmates and the establishment of a suicide prevention program.
3. Ensure that all staff are educated and adequately trained on suicide recognition, intervention, and management, including pre-service and annual in-service suicide prevention training, and that, prior to assuming their duties and on a regular basis thereafter, all staff who work directly with inmates have demonstrated competence in identifying and managing suicide.
4. Ensure that ECHC and ECCF have written suicide prevention policies that include an operational description of the requirements for both pre-service and annual in-service training.
5~ Screen all inmates upon intake, including questioning to assess current and past suicide risk.
6. Document inmate suicide attempts at ECHC and ECCF in the inmate's correctional record in the classification system, in order to ensure that intake staff will be aware of past suicide attempts if an inmate with a history of suicide attempts is admitted to ECHC and ECCF again in the future.
7. Ensure that intake staff are sufficiently experienced and qualified to identify inmates who pose a risk for suicide, and that such inmates are promptly referred to the appropriate mental health professionals and provided appropriate housing.
8. Ensure that follow-up evaluations by mental health professionals of all new inmates are conducted within 14 days of intake.
9. Ensure that inmates on suicide precautions receive adequate mental status examinations by a mental health clinician.
10. Ensure that suicidal inmates are housed in an area that is safe for them with appropriate supervision and observation by staff.

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11. Ensure that 15- and 30-minute checks of inmates under observation for risk of suicide are timely performed and appropriately documented.
12. Provide different levels of supervision of an inmate based on the presenting risk factors for suicide.
13. Ensure that detainees placed on suicide watch are assessed adequately, monitored appropriately to ensure their health and safety, and released from suicide watch as their clinical condition indicates, according to professional standards of care.
14. Ensure that cut-down.tools are readily available to staff in all housing units. Train staff in the use of cut-down tools.
15. Ensure a component of administrative review is implemented following a suicide or a suicide attempt to identify what could have been done to prevent the suicide.
B. Mental Health Care
1. Timely and Appropriate Evaluation of Inmates
a. Ensure ECHC and ECCF properly identify inmates with mental illness through adequate screening, and that such screening is incorporated into each inmate's medical record.
b. Ensure that inmates with potentially serious chronic mental health illness are referred for prompt mental health evaluations and examinations by a psychiatrist.
c. Provide adequate mental health assessment and treatment in accordance with generally accepted correctional standards of mental health care.
d. Ensure that adequate crisis services are available to address the psychiatric emergencies of inmates.
e. Provide staffing adequate for inmates' serious mental health needs. Provide adequate on-site psychiatry coverage. Ensure that psychiatrists see inmates in a timely manner. Ensure that

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psychotropic medication prescriptions are reviewed by a psychiatrist on a regular, timely basis.
2. Assessment and Treatment
a. Ensure that treatment plans adequately address inmates' serious mental health needs and that the plans contain interventions specifically tailored to the inmates' diagnoses and problems, consistent with generally accepted correctional practices. Provide therapy services where necessary for inmates with serious mental health needs. Provide adequate opportunities for inmates and staff to have confidential communications related to mental health treatment, while maintaining appropriate security precautions.
b. Ensure that mental health evaluations done as part of the disciplinary process include recommendations based on the inmate's mental health status.
c. Ensure that medications are provided to inmates in a timely manner and that they are properly monitored.
d. Provide staffing adequate for inmates with serious mental health needs. Ensure that services, such as distribution of medications, are performed by nurses or other properly trained staff.
e. Provide policies and procedures that require the appropriate assessment of inmates with mental illness.
f. Ensure adequate medical documentation and general procedures as part of the mental health assessments that account for inmates' psychiatric histories.
3. Psychotherapeutic Medication Administration
a. Ensure timely responses to orders for medication and laboratory tests, and prompt documentation thereof in inmates' charts.
b. Ensure that adequate psychotherapeutic medication administration is provided in accordance with

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generally accepted correctional mental health care standards.
c. Ensure that changes to inmates' psychotropic medications are clinically justified. Screen inmates on psychotropic medications for movement disorders and provide treatment where appropriate.
4. Other Mental Health Issues
a. Ensure that administrative segregation and observation status are not used to punish inmates for symptoms of mental illness and behaviors that are, because of mental illness, beyond their control.
b. Ensure that ECHC and ECCF mental health records are centralized, complete, and accurate.
c. Ensure that ECHC and ECCF quality assurance system is adequate to identify and correct serious deficiencies with the mental health system.
d. Ensure that a psychiatrist or physician conduct; an in-person evaluation of an inmate prior to a seclusion or restraint order, or as soon thereafter as possible. Seclusion or restraint orders should include sufficient criteria for release.
e. Ensure that all staff who directly interact with inmates (including Correctional Officers) receive competency-based training on basic mental health information (~, diagnosis, specific problematic behaviors, psychiatric medication, additional areas of concern) i recognition of signs and symptoms evidencing a response to traumai and the appropriate use of force for inmates who suffer from mental illness.
C. Protection from Harm
1. Use of Force
a. Develop and maintain comprehensive and updated policies and procedures, in accordance with generally accepted correctional standards, regarding permissible use of force.

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b. Develop and maintain comprehensive policies and procedures, consistent with generally accepted correctional standards, regarding the establishment and deployment of the Response Team and Quick Entry Team, including permissible uses of force, use of force reporting, and necessary training specific for membership on this team.
c. Establish effective oversight of the use of force.
d. Develop an effective and comprehensive training program in the appropriate use of force.
2. Safety and Supervision
a. Ensure that correctional officer staffing and supervision levels are appropriate to adequately supervise inmates.
b. Ensure that inmate common areas are adequately supervised whenever inmates are present.
c. Ensure frequent, irregularly timed, and documented security rounds by correctional officers inside each housing unit.
d. Ensure that staff adequately and promptly report incidents.
e. Develop a process to track all serious incidents that captures all relevant information, including: location, any injuries, if medical care is provided, primary and secondary staff involved, reviewing supervisor, external reviews and results (if applicable), remedy taken (if appropriate)·, and administrative sign-off.
f. Establish a procedure to ensure that inmates do not possess or have access to contraband. Conduct regular inspections of cells and common areas of the housing units for contraband.
g. Conduct regular inspections of cells and common areas of the housing units to identify and prevent rule violations by inmates.

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h. Review, and revise as applicable, all security policies and Standard Operating Procedures on an annual basis.
i. Provide formal training on division-specific post orders each time a correctional officer is transferred from one division to another.
j. Develop and implement specialized training for officers assigned to special management units, which include the Special Incarceration Units, disciplinary segregation, and protective custody units. Officers assigned to these units should possess a higher level of experience and be regularly assigned to these units for stability purposes.
k. Develop and implement appropriate training for corrections staff addressing security administration regarding:
(1) Identification, prevention, and intervention in inmate-on-inmate violence; and
(2) Professionalism and appropriate interaction between corrections staff and inmates.
1. Ensure that adequate supervisory staff is in place to prevent staff provocation and staff encouragement of inmate violence.
m. Develop and implement adequate policies and procedures to ensure appropriate investigation of staff-on-inmate violence and to ensure that appropriate corrective actions are taken.
n. Ensure the adequate division of supervisory responsibility at ECCF, including, the establishment of clear lines of authority per shift, irrespective of union affiliation.
3. Classification
a. Develop and implement policies and procedures for an objective classification system that separates inmates in housing units by classification levels.

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b. Update facility communication practices to provide officers involved in the classification process with current information as to cell availability on each division.
c. Update the classification system to include information on each inmate's history.
4. Sexual Misconduct
a. Ensure that staff is trained and/or retrained on the Prison Rape Elimination Act.
b. Establish a zero tolerance standard regarding any form of sexual harassment or sexual misconduct that involves inmates, staff or any other individual that has contact with inmates.
c. Prompt written corrective action must follow any deficiency or negative finding that is revealed in either an administrative or criminal investigation surrounding sexual misconduct or sexual harassment.
5. Inmate Grievance Procedure
a. Develop and implement policies and procedures to ensure inmates have access to an adequate grievance process. Such process should ensure that grievances are processed and legitimate grievances addressed and remedied in a timely manner, responses are documented and communicated to inmates,, inmates need not confront staff prior to filing grievances about them, and inmates may file grievances confidentially.
b. Ensure that grievance forms are available on all units.
c. Ensure that inmate grievances are screened for allegations of staff misconduct and, if the incident or allegation meets established criteria, referred for investigation.

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6. Access to Information
a. Ensure that newly admitted inmates receive information they need to comply with facility rules and regulations, report misconduct, access medical and mental health care, and seek redress of grievances.
b. Ensure that inmates who are not literate are afforded the opportunity to have information on facility rules and services explained to them orally.
D. Medical Care
1. Intake Screening
a. Ensure that adequate intake screening and health assessments are provided for inmates in accordance with generally accepted correctional standards of care. Develop and implement an appropriate medical intake screening instrument that identifies observable and non-observable medical needs, including infectious diseases, and ensure timely access to a physician when presenting symptoms require such care.
b. Ensure that acute and chronic health needs of inmates are identified in order to provide adequate medical care.
c. Ensure that medical screening information is reviewed in a timely manner by trained and appropriate medical care providers.
d. Ensure that tuberculosis ("TB") screenihg is conducted in a timely manner. Provide adequate treatment and management of communicable diseases (~, TB and Methicillin-resistant Staphylococcus aureus ("MRSA"), HIV, and Hepatitis).
2. Acute care
a. Provide timely medical appointments and follow-up medical treatment. Ensure that inmates receive treatment that adequately addresses their serious medical needs. Ensure that inmates receive acute care in a timely and appropriate manner.

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b. Provide adequate acute care for inmates with serious and life-threatening conditions.
c. Ensure that staff are adequately trained and prepared to handle emergency situations in accordance with generally accepted correctional standards.
3. Chronic care
a. Ensure that inmates receive thorough assessments for, and monitoring of, their chronic illness. Develop clinical practice guidelines for inmates with chronic and communicable diseases. Ensure that standard diagnostic tools are employed to administer the appropriate preventative care in a timely manner.
b. Adopt and implement appropriate clinical guidelines for chronic diseases such as HIV, hypertension, diabetes, asthma, and elevated blood lipids, and policies and procedures on, among other things, timeliness of access to medical care, continuity of medication, infection control, medicine dispensing, intoxication/detoxification, record-keeping, disease prevention, and special needs.
c. Ensure that medical staff are adequately trained to identify inmates in need of immediate or chronic care, and provide timely treatment or referrals for such inmates.
d. Ensure that inmates with chronic conditions are routinely seen by a physician to evaluate the status of their health and the effectiveness of the medication administered for their chronic conditions.
e. Ensure adequate follow-up treatment and medication administration concerning all inmates with chronic conditions.

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4. Treatment and Management of Communicable Disease
a. Provide adequate treatment and management of communicable diseases, including TB and Methicillin-resistant Staphylococcus aureus.
b. Ensure that inmates with communicable diseases are appropriately screened, isolated, and treated.
c. Ensure that HVAC and negative pressure systems are properly maintained and functioning.
d. Develop and implement an adequate TB control plan in accordance with generally accepted correctional standards of care. Such should provide guidelines for identification, treatment, and containment to prevent transmission of TB to staff or inmates.
e. Develop and implement policies that adequately manage contagious skin infections. Develop a skin infection control plan to set expectations and provide a work plan for the prevention of transmission of skin infections, including drug-resistant infections to staff and other inmates.
f. Develop and implement adequate guidelines to ensure that inmates receive appropriate wound care.
5. Follow-Up Care
a. Provide adequate care and maintain appropriate records for inmates following hospitalization. Ensure that inmates who receive specialty or hospital care are evaluated upon their return to the facility and that, at a minimum, discharge instructions are noted and appropriately provided.
6. Record Keeping
a. Ensure that medical records are adequate to assist in providing and managing the medical care needs of inmates at ECHC and ECCF.
b. Ensure that medical records are complete, accurate, readily accessible, and systematically organized. All clinical encounters and reviews of

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inmates should be documented in the inmates' records.
7. Medication Administration
a. Ensure that treatment and administration of medication to inmates is implemented in accordance with generally accepted correctional standards of care.
b. Ensure that administration of medication is accurate and adequately documented. Develop policies and procedures for the accurate distribution of medication and maintenance of medication records. Provide a systematic review of the use of medication to ensure that each inmate's prescribed regimen continues to be appropriate and effective for his condition.
c. Ensure that medicine distribution is hygienic and appropriate for the needs of inmates.
8. Staffing, Training, and Supervision
a. Provide adequate staffing, training, and supervision of medical and correctional staff necessary to ensure adequate medical care is provided.
b. Ensure that medical staffing is adequate for inmates' serious medical needs and that physicians adequately monitor their patients.
c. Provide adequate physician oversight and supervision of medical staff, including supervision for LPNs.
d. Ensure that there is an adequate number of correctional officers to escort inmates to medical units.
9. Quality Assurance Review
a. Ensure that ECHC and ECCF's quality assurance system is adequate to identify and correct serious deficiencies with the medical system.

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b. Ensure that ECHC and ECCF's quality assurance system is capable of assisting in managing and treating inmate medical needs. At a minimum, such a system should be reliable and capable of tracking medically-related incidents.
E. Sanitation and Environmental Conditions
1. Sanitation and Maintenance of Facilities
a. Develop and implement policies and procedures to ensure adequate cleaning and maintenance of the facilities with meaningful· inspection processes and documentation. Such policies should include oversight and supervision, as well as establish daily cleaning requirements for toilets, showers, and housing units.
b. Ensure prompt and proper maintenance of shower, toilet, and sink units.
c. Ensure proper ventilation and airflow in all cells and housing units.
d. Ensure adequate lighting in all housing units and prompt replacement and repair of malfunctioning lighting fixtures, so that officers and inmates are not exposed to the security danger that lack of visibility presents.
2. Environmental Control
a. Ensure adequate control and observation of ECHC and ECCF cells, particularly with regard to razors, fire loading materials, commissary items, and cleaning supplies.
b. Repair electrical shock hazards; develop and implement a system for maintenance and repair of electrical outlets, devices, and exposed electrical wires.
3. Sanitary Laundry Procedures
a. Ensure that laundry delivery procedures protect inmates from exposure to contagious disease, bodily fluids, and pathogens by preventing clean

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laundry from coming into contact with dirty laundry or contaminated surfaces.
b. To limit the spread of MRSA and other infectious disease, require inmates to provide all clothing and linens for ECHC and ECCF laundering and prevent inmates from washing and drying laundry outside the formal procedures.
c. To limit the spread of MRSA and other infectious disease, ensure that clothing and linens returned from off-site laundry facility are clean, sanitized, qnd completely dry.
d. Provide all inmates with properly cleaned and adequate bedding and clothing
* * *
IV. CONCLUSION
Please note that this letter is a public document and will be posted on the Civil Rights Division's website.
We invite the State to discuss with us the remedial recommendations, with the goal of remedying the identified deficiencies without resort to litigation. In the event that we are unable to reach a resolution regarding our concerns, the Attorney General is empowered to institute a lawsuit pursuant to CRIPA to correct deficiencies of the kind identified in this letter, 49 days after appropriate officials have been notified of them. 42 U.S.C. § 1997b(a) (1). If you have any questions regarding this letter, please call Shanetta Y. Cutlar, Chief of the Civil Rights Division's Special Litigation Section, at (202)514-0195.
Sincerely,
~~
Acting Assistant Attorney General
cc: Timothy B. Howard Erie County Sheriff

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Robert Koch Superintendent Erie County Sheriff's Department, Jail Management Division
Cheryl A. Green County Attorney Erie County
Kathleen Mehltretter Acting United States Attorney Western District of New York

 
 Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 1 of 25

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ____________________________________
UNITED STATES OF AMERICA,
Plaintiff, v.
ERIE COUNTY, NEW YORK; CHRIS COLLINS, COUNTY EXECUTIVE; ANTHONY BILLITTIER, IV, MD, COUNTY HEALTH COMMISSIONER; TIMOTHY B. HOWARD, ERIE COUNTY SHERIFF; RICHARD T. DONOVAN, ERIE COUNTY UNDERSHERIFF; ROBERT KOCH, SUPERINTENDENT, ADMINISTRATIVE SERVICES DIVISION, JAIL MANAGEMENT DIVISION; BARBARA LEARY, FIRST DEPUTY SUPERINTENDENT FOR ERIE COUNTY HOLDING CENTER; DONALD LIVINGSTON, FIRST DEPUTY SUPERINTENDENT FOR ERIE COUNTY CORRECTIONAL FACILITY,
Defendants. ____________________________________

09-CV-0849

STIPULATED SETTLEMENT AGREEMENT AND ORDER CONCERNING SUICIDE PREVENTION AND RELATED MENTAL
HEALTH ISSUES
I. INTRODUCTION
A. The plaintiff in this action is the United States of America (“United States”).
B. The Defendants in this action are the Erie County, New York (“the County”); Chris Collins, County Executive; Anthony Billittier, IV, MD, County Health Commissioner; Timothy B. Howard, Erie County Sheriff; Richard T. Donovan, Erie County Undersheriff; Robert Koch, Superintendent Administrative Services Division, Jail Management Division; Barbara Leary, First Deputy Superintendent for Erie County Holding Center; and Donald

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Livingston, First Deputy Superintendent for Erie County Correctional Facility (collectively, “Defendants” or “the County”).
C. On November 13, 2007, the United States Department of Justice notified the County of its intention to investigate conditions of confinement at the Erie County Holding Center (“ECHC”) and the Erie County Correctional Facility (“ECCF”) (collectively, the “Facilities), pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997.
D. On July 15, 2009, the United States issued a findings letter pursuant to 42 U.S.C. § 1997 alleging that certain conditions at ECHC and ECCF violate the constitutional rights of individuals confined in those facilities.
E. On September 30, 2009, the United States filed a complaint pursuant to 42 U.S.C. § 1997 alleging deprivation of rights, privileges, or immunities secured and protected by the Constitution of the United States.
F. The Parties enter into this Stipulated Settlement and Order (“Stipulated Settlement”) and desire to compromise, settle, satisfy and resolve fully and finally all differences or disputes between them in connection with suicide prevention and related mental health issues and to avoid the further expense, disruption and uncertainty of litigation, without admitting any liability, on the terms and conditions set forth in this document, and consistent with the mediation between the parties. This Stipulated Settlement settles only the limited issues of suicide prevention and related mental health treatment. All other claims in the complaint filed by the United States remain on the Court’s active docket and are in litigation.
G. The County asserts that it is currently implementing certain provisions of the Stipulated Settlement. The United States asserts that the County’s implementation is subject to review by the Joint Compliance Officer.
H. The Defendants agree that this Stipulated Settlement complies in all respects with the requirements for prospective relief under the Prison Litigation Reform Act, 18 USC § 3626 (a).
I. The Parties stipulate and agree that all of the prospective relief in this Stipulated Settlement is narrowly drawn and extends no further than necessary to correct the violation of the federal right. The Defendants do not agree or admit that the Eighth or Fourteenth Amendments require any of the specific remedies in this Stipulated Settlement.
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J. The issue of liability has not been litigated. The Parties ask the Court to approve this Stipulated Settlement without a full hearing on the merits, on the basis of the above stipulations.
K. By entering into this Stipulated Settlement the Defendants do not waive the right to contest the Findings Letter and any of the conclusions therein.
L. The County and the Defendants agree to implement all requirements under this Stipulated Settlement. The implementation of this Stipulated Settlement will begin immediately upon the effective date.
M. This Stipulated Settlement may not be used as evidence of liability in any other legal proceeding. The issue of liability with respect to suicide prevention and related mental health treatment has not been litigated.
N. No person or entity is intended to be a third-party beneficiary of the provisions of this Stipulated Settlement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Stipulated Settlement. This Stipulated Settlement is not intended to impair or expand the right of any person or organization to seek relief against the County or their officials, employees, or agents for their conduct. This Stipulated Settlement does not alter legal standards governing any such claims, including those standards established by New York State law.
II. DEFINITIONS
A. “DOJ” shall refer to the United States Department of Justice, which represents the United States in this matter.
B. “Effective date” shall be the date the Order is entered by the Court.
C. “Generally accepted correctional standards of care” shall mean a decision by a qualified professional that is substantially aligned with contemporary, accepted professional judgment, practice, or standards and demonstrates that the person responsible based the decision on such accepted professional judgment.
D. “Timely” shall mean the provision of medical or mental health care consistent with generally accepted correctional standards of care, depending on the nature of the situation, such as emergency, urgent, or routine.
E. “Include” or “including” shall mean “include, but not be limited to” or “including, but not limited to.”
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F. “ECHC” and “ECCF” or “the facilities” or “the jail” shall refer to the Erie County Holding Center, the Erie County Correctional Facility, or the facilities jointly, as well as any facility that is built, leased, or otherwise used, to replace or supplement either or both facilities.
G. “Inmate” or “inmates” shall be construed broadly to refer to one or more individuals detained at, or otherwise housed, held, in the custody of, or confined at ECHC and/or ECCF.
H. “Corrections staff” means all ECCF/ECHC employees and contractors, irrespective of job title, whose regular duties include the supervision of inmates at ECHC and/or ECCF.
I. “Quality Improvement” means a multidisciplinary quality improvement committee that meets as required, but no less than quarterly, designs quality improvement monitoring activities, discusses the results, and implements corrective action relative to suicide prevention and related mental health care.
J. “Suicide Precautions” means any level of watch, observation, or measures to prevent self-harm, including where an inmate self-reports suicidal ideations or suicide risk or is identified by a corrections staff, qualified health professional or qualified mental health professional.
K. “Train” means to instruct in the skills addressed to a level that the trainee has the demonstrated proficiency to implement those skills. “Trained” means to have achieved such proficiency.
L. “Qualified health professional” means a physician, physician assistant, nurse practitioner, a registered nurse, or a practical nurse who is currently licensed by the State of New York and provides medical care and services to inmates at ECHC and/or ECCF.
M. “Qualified mental health professional” means an individual with a minimum of masters-level education and training in psychiatry, psychology, counseling, social work or psychiatric nursing, who is currently licensed by the State of New York to evaluate and care for the mental health needs of inmates at ECHC and/or ECCF.
N. “Joint Compliance Officer,” (“JCO”) means the individual jointly selected to oversee and evaluate the County’s implementation of and compliance with this Stipulated Settlement.
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O. Throughout this Stipulated Settlement, the following terms are used when discussing compliance: substantial compliance, partial compliance, and noncompliance. “Substantial compliance” indicates that the facilities have achieved compliance with most components of the relevant provision of the Stipulated Settlement. “Partial compliance” indicates that compliance has been achieved on some of the components of the relevant provision of the Order, but significant work remains. “Non-compliance” indicates that most or all of the components of the Stipulated Settlement provision have not yet been met. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
III. SUBSTANTIVE PROVISIONS
A. Jail Suicide Prevention Program
The County agrees that inmates will be protected from conditions that place inmates at significant risk of harm from suicide or self-injurious behavior. To meet this requirement, the County agrees to take the following specific steps:
1. Screening and Assessment
a. The County is utilizing corrections staff and/or a registered nurse to conduct suicide screenings and health screenings upon admission to the ECHC to identify the inmate’s risk for suicide or self-injurious behavior. The County agrees to implement its program to utilize a registered nurse to administer suicide and/or health screenings for inmates admitted to ECHC. In the event that a registered nurse is not available to conduct the initial screen due to staff shortages, unforeseen absences by employees, lack of coverage, or emergency, Corrections Staff may be utilized to conduct the initial screen. The suicide screen will be conducted upon admission to ECHC and upon re-entry of inmates to ECHC after sentencing. The County agrees to continue utilizing the New York State Commission of Corrections (“COC”) screening form, as modified, to include the following screening factors:
i. past suicidal ideation and/or attempts; ii. current suicidal ideation, threat, or plan; iii. prior mental health treatment or hospitalization;
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iv. recent significant loss such as the death of a family member or close friend;
v. history of suicidal behavior by family members and/or close friends;
vi. suicide risk during any prior confinement; vii. any observations of the transporting officer, court,
transferring agency, or similar individuals regarding the inmate’s potential suicidal risk; viii. substance/s or medications used; ix. amount; x. time of last use; xi. history of use; xii. any physical observation, such as shaking, seizing, hallucinating; xiii. history of drug withdrawal symptoms, such as agitation, tremors, seizures, hallucinations, and D.T. (delirium tremens).
b. The County agrees to identify inmates who are potentially suicidal and suicidal. The County agrees to place all potentially suicidal and suicidal inmates onto constant observation, and a qualified mental health professional will perform a timely mental health assessment, based on the inmate’s classification, within 48 hours or sooner, as medically necessary.
c. Mental health assessments triggered by a screening shall include, at a minimum, the following assessment factors:
i. the suicide risk screening indicates that the inmate is suicidal or potentially suicidal;
ii. any suicide attempt in the past; iii. any suicidal ideations, with intent/plan within the past 30
days, iv. any command hallucinations to harm self within the last
30 days; v. any combination of the following:
a) suicidal ideations within the past year with or without intent/plan, b) suicidal gestures (current and/or within past year), c) one or more of the following diagnoses: bipolar disorder, depressed, major depression with or without psychotic features, schizophrenia, schizoaffective disorder, any diagnosis within the
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pervasive developmental disorder spectrum, and any other factor(s) determined by the interdisciplinary team (IDT) as contributing to suicide risk (e.g. recent loss, family history of suicide, etc.); and vi. any history of self injurious behavior resulting in injury requiring medical attention within the past year.
All assessments shall be completed by a qualified mental health professional, pursuant to generally accepted correctional standards of care.
d. The County agrees to have a qualified mental health professional perform a mental health assessment following any of these triggering events: suicide attempt, any suicidal ideation, with or without a plan, or any aggression to self resulting in major injury. Additionally, the County agrees to have a health assessment by a qualified health professional performed following any of these triggering events: any incident of an individual testing positive for illicit substance (street drug) use, use of benzodiazepines (continuous for more than 60 days) in an individual with a past history of substance use disorder, suicide attempt, any suicidal ideation, with or without a plan, or any aggression to self resulting in major injury.
e. The County agrees to provide inmates with reasonable privacy in medical and mental health care, including screenings and assessments, and maintain the confidentiality of inmates’ medical and mental health status, subject to legitimate security concerns and emergency situations. Screenings will continue to occur at the booking windows with a reasonable expectation of privacy.
f. The County agrees that the nursing staff will complete assessments of inmates in acute detoxification every eight hours with observations and vital signs, not limited to blood pressure.
g. The County agrees that all inmates discharged from suicide precautions receive a follow-up assessment in accordance with a treatment plan developed by a qualified mental health professional.
2. Suicide Prevention Training Program
a. By November 1, 2010, the County will review and revise its suicide prevention training program, as necessary to effectuate this Stipulated Settlement.
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b. An initial eight-hour suicide prevention training will be completed by all corrections staff. The suicide prevention training program and curriculum will include the following topics if not already included in other annual training: i. suicide prevention policy (as revised consistent with this Stipulated Settlement); ii. analysis of facility environments and why they may contribute to suicidal behavior; iii. potential predisposing factors to suicide; iv. high risk suicide periods; v. warning signs and symptoms of suicidal behavior; vi. relevant case studies of suicides and serious suicide attempts; vii. mock emergency response drill related to a suicide attempt; and viii. the proper use of emergency equipment.
c. The suicide prevention training program will train corrections staff on the suicide risk assessment tool and the medical intake tool.
d. The suicide prevention training program will train corrections staff in observing inmates on suicide watch and step-down unit status.
e. The County agrees that all corrections staff will be certified in cardiopulmonary resuscitation.
f. The County will provide a first aid kit, including a CPR mask, accessible to all housing units, and will continue to maintain emergency rescue tools on corrections staff assigned to housing units.
g. The County will document Suicide Prevention Training of corrections staff, qualified health professionals, and qualified mental health professionals.
3. Detoxification Training Program
a. The County agrees to implement a detoxification training program. The detoxification training program will include the following:
i. Qualified mental health professionals will be trained annually on alcohol withdrawal and withdrawal from other substances, including benzodiazepines.
ii. The chief medical officer and his or her delegate will train qualified health professional staff annually on alcohol withdrawal and withdrawal from other substances, including benzodiazepines. Also, qualified health professionals will be trained on the use and treatment of benzodiazepines.
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b. The detoxification training program will include an initial training of corrections staff by qualified health professionals and qualified mental health professionals on the policies and practices of the detoxification unit and on suicide assessment, suicide prevention, and drug and alcohol withdrawal. The detoxification training program will include annual training for corrections staff on the policies and procedures of the detoxification unit.
c. The detoxification training program will include that qualified mental health professionals be trained in providing inmates with timely referral to a qualified psychologist or psychiatrist, as appropriate.
d. The detoxification training program will include cardiopulmonary resuscitation training, if not included in other annual training.
e. The detoxification training program will include training for corrections staff on how to recognize medical emergencies, how to conduct cardiopulmonary resuscitation, and how to use first aid equipment, including the cardiopulmonary resuscitation mask, if not included in other annual training.
f. The detoxification training program will include training for qualified health professionals on proper medication administration practices, including appropriately labeling containers and contemporaneously recording medication administration.
h. The County will document detoxification training of corrections staff, qualified health professionals, and qualified mental health professionals.
4. Annual Refresher Training
The County agrees that it will provide two hours of refresher training including the topics of suicide prevention and detoxification on an annual basis. Said training of corrections staff, qualified health professionals, and qualified mental health professionals will be documented by the County.
5. Communication and Records System
a. The County agrees that corrections staff, qualified health professionals and qualified mental health professionals, as applicable, will continue to document the initiation of suicide
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Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 10 of 25
precautions including level of observation, housing location, and conditions of the precautions.
b. By March 1, 2011, the County agrees that medical and mental health records will be merged into one uniform record or file to improve coordination and continuity of care.
c. The County agrees to maintain, for each inmate confidential and organized records of all medical and/or mental health screening, assessments, and/or treatments received within the ECHC or ECCF. Such records shall include, where practicable, information regarding symptoms, the results of physical evaluations, and medical and mental health staff progress notes so that qualified health professionals and qualified mental health professionals will have such information available when treating inmates.
d. The County will maintain complete information and medical documentation on each inmate.
e. The County agrees that administrative segregation and observation status are used solely for the safety and security of the inmate.
6. Housing
a. The County represents that it has already awarded the contract to place suicide-resistant plexiglass over the bars in the podular units in ECHC using suicide-resistant bolts and/or brackets, so there are no protrusions, and agrees to complete the performance of such work by September 1, 2010.
b. The County represents that it has already awarded the contract to replace the existing air ventilation grates in the podular units in ECHC with grates having holes that are 1/8” to 3/16” wide (16-mesh per square inch), so there are no protrusions, and agrees to complete the performance of such work by December 1, 2010.
c. The County agrees to modify all bunk holes to be made suicideresistant in all podular units in ECHC by June 1, 2011.
d. The County agrees that a qualified mental health professional or a qualified health professional will set forth the conditions of the observation, including but not limited to, allowable clothing, property, and utensils, and orders addressing continuation of privileges, such as showers, telephone, visiting, recreation, etc., commensurate with the inmate’s security level. The conditions of
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observation will be for safety and security only and shall allow an inmate with suicide precautions similar access to property and recreation as the general population, unless a qualified mental health professional deems such access would contribute to selfinjurious behavior.
e. The County will avoid the use of any “smock” or restraints (e.g. leg irons, handcuffs, or chair), whenever possible, and use only as a last resort when the inmate is engaging in self-injurious behavior. A qualified mental health professional or, in his or her absence, a qualified health professional, will decide when these options may be used.
B. Risk Management Program
The Defendants will formalize a risk management program to protect inmates from conditions that place inmates at significant risk of harm from suicide or self-injurious behavior and to review the efficacy of Defendants’ suicide prevention program.
1. The Risk Management Program will include, but not be limited to, the following processes: incident reporting, data collection, and data aggregation to capture sufficient information to formulate a reliable risk assessment at the individual and system levels; identification of at-risk inmates in need of clinical or interdisciplinary review or treatment; identification of situations involving at-risk inmates that require review by an interdisciplinary team and/or systemic review by administrative and professional committees; a hierarchy of interventions that corresponds to levels of risk; mechanisms to notify interdisciplinary teams and the risk management system of the efficacy of interventions; identification and analysis of trends in high risk situations, utilizing triggers as set forth in Appendix A.
2. The Risk Management Program shall set forth the criteria and categories in the screening and assessment factors, as included in III (A)(1)(a) and triggers and thresholds as included in Appendix A to assess inmates’ risk of harm. The JCO may modify the criteria and categories set forth herein, if the modification is agreed to by the Parties.
3. The Risk Management Program will include the following hierarchy of interventions: first level – screening; second level– interdisciplinary team which develops a treatment plan; third level– quality improvement program; and mortality/morbidity committee.
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Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 12 of 25
a. First Level– Screening: Screening of inmates will be conducted in accordance with section III(A)(1)(a) of this Stipulated Settlement.
b. Second Level – Interdisciplinary Team: The interdisciplinary team will include qualified health professionals and qualified mental health professionals. The interdisciplinary team will review all individuals assessed in accordance with section III(A)(1)(c). The County agrees that qualified mental health professionals will assess for risk of suicide or self injurious behavior based on the level of risk identified in the screening at section III (A)(1)(a). The County will continue to develop and implement timely treatment plans that adequately address inmates’ serious mental health needs and that contain interventions specifically tailored to the inmates’ diagnoses. The County agrees to timely refer and treat inmates for specialty care and to provide regularly scheduled visits with qualified mental health professionals, crisis services, and/or provide in-patient psychiatric care where assessments reveal serious mental illness and/or suicidal ideation when clinically appropriate.
c. Third Level – the Quality Improvement Program- The Defendants will develop and implement a written quality improvement program to identify deficiencies in inmate suicide prevention, detoxification, and related mental health care, and to regularly assess and ensure compliance with the terms of this Stipulated Settlement.
i. The quality improvement program will be led by a multidisciplinary team that meets regularly, but no less than quarterly, to review data elements reflective of practice standards established pursuant to policies and procedures. Each workgroup within the program will also meet regularly, but no less than quarterly.
ii. As part of the quality improvement program, the suicide prevention workgroup will include, but is not limited to, the Chief Medical Officer or designee, Director of Correctional Health, Director of Intensive Mental Health Services, Senior Psychiatric Consultant and representative(s) from the Jail Management Division. The suicide prevention workgroup will:
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Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 13 of 25
1. develop and implement a written quality improvement plan to identify deficiencies in inmate suicide prevention, detoxification, and mental health care, and
2. regularly assess and ensure compliance with the terms of this Stipulated Settlement.
iii. The program will do the following:
1. monitor the risk management activities of the ECHC and ECCF;
2. review and analyze aggregate risk management data;
3. identify individual and systemic risk management trends;
4. make recommendations for further investigation of identified trends and for corrective action, including system changes; and
5. monitor implementation of recommendations and corrective actions.
iv. As part of the quality improvement program, there will also be a detox workgroup and mental health care workgroup. Each of the identified workgroups will:
1. assess current processes; 2. identify barriers and deficiencies; 3. develop ways to address, identify and collect the
critical data elements; 4. review the data and outcomes; 5. formalize standards of practice; 6. make policy and practice recommendations based
upon the outcomes; and 7. develop procedures to implement review of data into
regular supervision/management, as relevant to the specified work group.
v. The quality improvement program will review cases of individuals, who meet the thresholds in Appendix A, to identify patterns or trends.
vi. The quality improvement program related to suicide prevention will include the annual performance assessment, as related to suicide prevention and related
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Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 14 of 25
mental health care, of: screening during booking for suicide risks; inmate assessments and dispositions by qualified health professionals; timely and clinically appropriate access to medical and mental health care by inmates; and the evaluation and treatment of inmates for withdrawal by qualified health professionals.
vii. For individuals reviewed for detoxification, the quality improvement program will provide recommendations to the interdisciplinary team; require that medical assessments are performed and medical and nursing interventions are developed and implemented, where indicated; and analyze individual in aggregate medical data and identify trends that present a risk of harm.
4. The Morbidity/Mortality Committee
a. The morbidity and mortality review committee shall include, at a minimum, the Superintendent or designee, Chief Medical Officer, Director of Intensive Adult Services, Director of Correctional Health and qualified medical professionals and qualified mental health professionals.
b. The morbidity and mortality review committee shall conduct written interdisciplinary reviews of all suicides and serious suicide attempts (e.g., those incidents requiring hospitalization for medical treatment).
c. Reviews by the morbidity and mortality review committee will examine:
i. circumstances surrounding the incident; ii. facility procedures relevant to the incident; iii. all relevant training received by involved staff; iv. pertinent medical and mental health services/reports
involving the victim; v. possible precipitating factors leading to the suicide; and vi. recommendations, if any, for changes to policy, training,
physical plant, medical or mental health services, and operational procedures; and vii. when appropriate, the review team shall develop a written plan (and timetable) to address areas that require corrective action.
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Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 15 of 25
d. The morbidity and mortality review committee will convene within 30 days of each suicide or serious suicide attempt (e.g., those incidents requiring hospitalization for medical treatment).
e. The morbidity and mortality review committee shall ensure a corrective action plan is developed after each mortality review.
f. The morbidity and mortality review committee shall ensure a follow-up mortality review is conducted within 30 days after the pathological examinations are complete.
IV. JOINT COMPLIANCE OFFICER AND REPORTING REQUIREMENTS
A. As part of the initial selection process or if the JCO position becomes vacant, the Parties agree to jointly select the Joint Compliance Officer (“JCO”) within 60 days of the effective date of this Stipulated Settlement. The Parties agree to choose no more than three JCO candidates and will conduct joint interviews of these candidates. The Parties agree to work in good faith during the selection process of the JCO. Should the parties not agree on the selection of the JCO, the Parties will submit the names of the three candidates to the Court, and the Court will select the JCO from the list of candidates. Neither party, nor any employee or agent of either party, shall have any supervisory authority over the JCO’s activities, reports, findings, or recommendations. The reasonable cost for the JCO’s staff, fees, and expenses shall be borne by the Defendants. The selection of the JCO shall be conducted solely pursuant to the procedures set forth in this Stipulated Settlement and will not be governed by any formal or legal procurement requirements. The JCO may be terminated only for good cause, unrelated to the JCO’s findings or recommendations, and only with prior notice to, and approval of, both Parties or by Court order.
B. The JCO shall have relevant experience and education or training in the field of corrections, mental health care, suicide prevention, or medical care. The JCO may also have education, training, or experience in systems of accountability or quality improvement.
C. The JCO shall have full and complete access to the facilities, all facility records, inmate records, staff, and inmates upon notice to the Defendants’ Stipulated Settlement Coordinator or his/her designee. The Defendants shall direct all employees to cooperate fully with the JCO.
D. The JCO shall be permitted to initiate and receive ex parte communications with all Parties.
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E. Except as required or authorized by the terms of this Stipulated Settlement or the Parties acting together, the JCO shall not: 1) make any public statements (at a conference or otherwise); or 2) issue findings with regard to any alleged act, error or omission of the Defendants or its agents, representatives or employees; or 3) disclose nonpublic information provided to the JCO pursuant to this Stipulated Settlement. Any press statement made by the JCO regarding his or her employment herein must first be approved in writing by all Parties. The JCO shall not testify in any other litigation or proceeding with regard to any alleged act, error or omission of the County or any of its agents, representatives, or employees related to this Stipulated Settlement, nor testify in any other matter regarding any matter or subject that he or she may have learned about as a result of his or her performance under this Stipulated Settlement. Reports issued by the JCO shall not be admissible against the Defendants in any proceeding other than a proceeding related to the enforcement of this Stipulated Settlement. Unless such conflict is waived by the Parties, the JCO shall not accept employment or provide consulting services that would present a conflict of interest with the JCO’s responsibilities under this Stipulated Settlement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in connection with a claim or suit against the Defendants, its departments, officers, deputies, agents or employees. The JCO is not a State/County or local agency or an agent thereof, and accordingly the records maintained by the JCO shall not be deemed public records subject to public inspection. Neither the JCO nor any person or entity hired or otherwise retained by the JCO to assist in furthering any provision of this Stipulated Settlement shall be liable for any claim, lawsuit or demand arising out of the JCO’s performance pursuant to this Stipulated Settlement. This paragraph does not apply to any proceeding before a court related to performance of contracts or subcontracts for compliance evaluation of this Stipulated Settlement.
F. The JCO shall file with the Court and provide the Parties with reports describing the steps taken by the Defendants to implement this Stipulated Settlement and evaluate the extent to which the Defendants are in compliance with each substantive provision of the Stipulated Settlement. The JCO shall issue such reports every four months, unless both Parties otherwise agree in writing. The reports shall be provided to the Parties in draft form at least two weeks prior to its final issuance. The Parties may provide written comments, if necessary, and copy the opposing party. These reports shall be written with due regard for the privacy interests of individual inmates and staff. In each report, the JCO shall evaluate the status of compliance for each provision of the Stipulated Settlement using the following standards: (1) substantial compliance; (2) partial compliance; and
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Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 17 of 25
(3) non-compliance. In order to assess compliance, the JCO shall: review a sufficient number of relevant documents to accurately assess current conditions; interview all relevant staff; and interview a sufficient number of inmates to accurately assess current conditions. The JCO shall be responsible for independently verifying representations from the Defendants regarding progress toward compliance and examining supporting documentation where applicable. Each JCO’s report shall describe the steps taken to analyze conditions and assess compliance, including documents reviewed and individuals interviewed, and the factual basis for each of the JCO’s findings.
G. Defendants shall provide the JCO with a reasonable budget sufficient to allow the JCO to carry out the responsibilities described in this Stipulated Settlement. The JCO may hire or consult with additional individuals as necessary to fulfill the duties required by the Stipulated Settlement.
H. The JCO shall provide the Defendants with technical assistance as requested by the Defendants.
I. During the term of this Stipulated Settlement, the Defendants shall provide the United States reasonable access upon reasonable notice to confirm the implementation of this Stipulated Settlement as determined by the JCO.
J. Defendants, and their agents, agree that they shall not retaliate against any person because that person has filed or may file a complaint, provided information or assistance, or participated in any other manner in an investigation or proceeding relating to this Stipulated Settlement.
K. As part of this Stipulated Settlement, the County will agree to create an additional First Deputy Superintendent position, job group 15, in the Sheriff’s Office, Jail Management Division, to facilitate, coordinate, and implement each and every provision of this Stipulated Settlement and any future stipulated settlements entered into between the Defendants and the United States as they may occur in these proceedings who will act as a Stipulated Settlement Coordinator to serve as a point of contact for the United States and the JCO.
L. Defendants shall not assert physician/patient or psychotherapist/patient privileges with respect to the monitoring of this Stipulated Settlement by the United States and the JCO. The Parties and the JCO will treat all personally identifiable information as confidential.
VII. CONSTRUCTION, IMPLEMENTATION, AND TERMINATION
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A. The Defendants shall implement all reforms necessary to effectuate this Stipulated Settlement. The implementation of this Stipulated Settlement will begin immediately upon its effective date.
B. Defendants agree to review and revise policies, procedures, protocols, training curricula, and practices to ensure that they are consistent with, incorporate, address, and implement all provisions of this Stipulated Settlement. Defendants agree to revise and/or develop as necessary other written documents such as screening tools, logs, handbooks, manuals, and forms, to effectuate the provisions of this Stipulated Settlement. Defendants agree to send newly-drafted and revised policies and procedures to the United States and the JCO for review and approval as they are promulgated. Such approval is not to be unreasonably withheld. In the event that the Defendants believe the United States has unreasonably withheld approval, the Defendants may seek judicial intervention. As set forth in section III., A. 2., 3., and 4. Defendants will provide initial and refresher training to all facility staff with respect to newly implemented or revised policies and procedures and document employee review and training in policies and procedures.
C. Except where otherwise specifically provided, Defendants shall complete implementation of all provisions of this Stipulated Settlement within 180 days of its effective date.
D. The Parties expect that the County will attain substantial compliance with all areas of the Order within two years. Substantial compliance in this paragraph includes a period of no less than eighteen (18) months of sustained substantial compliance with all provisions of the Stipulated Settlement. The burden shall be on the Defendants to demonstrate that they have maintained substantial compliance with each of the provisions of the Stipulated Settlement. If Defendants are in compliance with all of the substantive provisions set out in this Stipulated Settlement earlier than two (2) years from the effective date of the Stipulated Settlement and maintain compliance for at least eighteen (18) months, the parties may then seek to terminate this Stipulated Settlement. In the event that the United States does not agree that the Defendants are in substantial compliance with all provisions in the Stipulated Settlement and that Defendants have been in substantial compliance for eighteen months, the burden will be on Defendants to demonstrate such compliance. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
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E. If the United States believes that the Defendants have failed to comply with any obligation under this Stipulated Settlement, the United States will, prior to seeking judicial action to enforce the terms of this Stipulated Settlement, give written notice of the failure to Defendants. The Parties shall engage in good-faith negotiations to attempt to resolve the dispute. These negotiations will last for a maximum of 30 days from the date of the United States’ written notice. The United States commits to work in good faith with Defendants to avoid enforcement actions. However, in the case of an emergency posing an immediate threat to the health and safety of inmates, the United States may seek enforcement action without regard to the notice and negotiation requirements herein.
F. Failure by either party to enforce this entire Stipulated Settlement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines or provisions of this Stipulated Settlement.
G. If any unforeseen circumstance occurs that causes a failure to timely carryout any requirements of this Stipulated Settlement, Defendants shall notify the United States in writing within twenty (20) calendar days after Defendants become aware of the unforeseen circumstance and its impact on Defendants’ ability to perform under the Stipulated Settlement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. Defendants shall implement all reasonable measures to avoid or minimize any such failure.
H. This Stipulated Settlement shall constitute the entire integrated agreement of the Parties. No prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein, in litigation, or in any other proceeding.
I. The Stipulated Settlement shall be applicable to, and binding upon, all Parties, their officers, deputies, agents, employees, assigns, and their successors in office. Defendants shall ensure that all current and future relevant County employees understand the terms of this Stipulated Settlement (to the extent necessary to carry out their job duties and responsibilities) and implement the terms of this Stipulated Settlement.
J. Each party shall bear the cost of its fees and expenses incurred in connection with implementing this Stipulated Settlement.
K. In the event that any provision of this Stipulated Settlement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Stipulated Settlement.
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L. As part of the Stipulated Settlement, if either party received a request under the Freedom of Information Act or Freedom of Information Law, the parties agree to provide opposing counsel with ten (10) days advance notice prior to responding to any such request.

Dated:

June 18, 2010

ATTORNEYS FOR PLAINTIFF

s/Thomas E. Perez Thomas E. Perez Assistant Attorney General U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530

s/William J. Hochul, Jr. William J. Hochul, Jr. United States Attorney Western District of New York 138 Delaware Avenue Buffalo, NY 14202

s/Samuel Bagenstos Samuel Bagenstos Principal Deputy Assistant Attorney General U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington , DC 20530

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Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 21 of 25

s/Judy Preston Judy Preston Acting Chief, Special Litigation Section U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530

s/Mary E. Fleming Mary E. Fleming Assistant United States Attorney Civil Chief Western District of New York 138 Delaware Avenue Buffalo, NY 14202

s/Luis E. Saucedo Luis E. Saucedo Acting Deputy Chief, Special Litigation Section U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530

s/Zazy I. Lopez Zazy I. Lopez Aaron Saul Fleisher Alyssa Connell Lareau Charles W. Hart , Jr. Regina Jansen Trial Attorneys, Special Litigation Section U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530

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Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 22 of 25 ATTORNEYS FOR DEFENDANTS
s/Cheryl A. Green Cheryl A. Green Erie County Attorney 95 Franklin Street 16th Floor Buffalo, NY 14202
s/Kristin Klein Wheaton Kristin Klein Wheaton First Assistant County Attorney 95 Franklin Street Room 1634 Buffalo, NY 14202
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DEFENDANTS
s/Chris Collins Chris Collins County Executive County of Erie 95 Franklin Street Buffalo, NY 14202
s/Anthony Billittier, IV, MD. Anthony Billittier, IV, MD. County Health Commissioner County of Erie 95 Franklin Street Buffalo, NY 14202
s/Timothy B. Howard Timothy B. Howard Erie County Sheriff 95 Franklin Street Buffalo, NY 14202
s/Richard T. Donovan Richard T. Donovan Erie County Undersheriff 95 Franklin Street Buffalo, NY 14202
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Case 1:09-cv-00849-WMS-JJM Document 89-2 Filed 06/18/2010 Page 24 of 25
s/Robert Koch Robert Koch Superintendent Administrative Services Division Jail Management Division County of Erie 95 Franklin Street Buffalo, NY 14202
s/Barbara Leary Barbara Leary First Deputy Superintendent Erie County Holding Center 95 Franklin Street Buffalo, NY 14202
s/Donald Livingston Donald Livingston First Deputy Superintendent Erie County Correctional Facility 95 Franklin Street Buffalo, NY 14202
SO ORDERED: The Honorable William M. Skretny
Date:
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APPENDIX A Screening and Assessment Factors, Triggers, and Thresholds

Trigger Events Occurring in ECHC and ECCF
History, Ideation and Observation

Thresholds Reached in ECHC and ECCF

1. Any suicide attempt 2. Any suicide ideation, with or without
a plan 3. Any aggression to self resulting in
major injury

1. Any suicide 2. Any suicide attempt resulting in
outside medical treatment 3. Two or more suicide attempts within
14 consecutive days 4. Four or more suicide attempts
within 30 consecutive days 5. Four or more episodes of suicidal
ideation within 14 consecutive days 6. Six or more episodes of suicidal
ideation within 30 consecutive days

Detoxification and Use of Illicit Substances

1. Any incident of an individual testing positive for illicit substance (street drug) use
2. Use of benzodiazepines (continuous for more than 60 days) in an individual with past history of substance use disorder
3. Any suicide attempt 4. Any suicidal ideation, with or without
a plan 5. Any aggression to self resulting in
major injury

1. Two or more incidents of illicit use in 7 consecutive days
2. Four or more incidents of illicit use in 30 consecutive days

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 Case 1:09-cv-00849-WMS -JJM Document 225-1 Filed 08/18/11 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT 
 FOR THE WESTERN DISTRICT OF NEW YORK 


UNITED STATES OF AMERICA,

) 


)

PLAINTIFF,

)

)

v.

)

)

ERIE COUNTY, NEW YORK,

)

)

DEFENDANT.

)

)


)


_________________________________________)


 
 

Civil No. 09-cv-0849



STIPULATED ORDER OF DISMISSAL I. GENERAL PROVISIONS

A. The Plaintiff in this action is the United States of America (“United States”).
B. The Defendant in this action is Erie County, New York (“the County”). The parties enter into this Stipulated Order of Dismissal to: (1) Recognize the County’s ongoing efforts to enhance the delivery of services at the Facilities; (2) Avoid the cost and burden of continued litigation; and (3) Fully and finally resolve all disputes related to the subject matter of this action.
C. The Parties enter into this Stipulated Order of Dismissal (“Stipulated Order”) and desire to compromise, satisfy and resolve fully and finally all differences or disputes between them in and to avoid the further expense, disruption and uncertainty of litigation, without admitting any liability, on the terms and conditions set forth in this document. The County does not agree or admit that the Eighth or Fourteenth Amendments require any of the specific remedies in this Stipulated Order.
D. No person or entity is intended to be a third-party beneficiary of the provisions of this Stipulated Order of Dismissal for purposes of any civil, criminal, or administrative action or proceeding. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class member under this Stipulated Order of Dismissal. This Stipulated Order of Dismissal is not intended to expand the right of any person or entity

Case 1:09-cv-00849-WMS -JJM Document 225-1 Filed 08/18/11 Page 2 of 40
who seeks relief against the County or its officials or employees. This Stipulated Order of Dismissal may not be used as evidence of liability in any other proceeding.
E. The County enters into this Stipulated Order of Dismissal because it is committed to providing constitutionally and legally compliant conditions in the Facilities, by effectuating its duties under the Constitution and other applicable laws.
F. Nothing in this Order shall be construed to alter the legal standards governing the Facilities under New York law or the United States Constitution.
G. On July 15, 2009, the United States issued a findings letter pursuant to 42 U.S.C. § 1997 alleging that certain conditions at the Erie County Holding Center and the Erie County Correctional Facility (the “Facilities”) violate the constitutional rights of individuals confined in the Facilities. On September 30, 2009, the United States filed a complaint alleging deprivation of constitutional rights. On June 18, 2010, the parties entered into a Stipulated Settlement and Order to resolve issues of suicide prevention in the Facilities, and now seek to resolve the remaining issues in dispute.
H. The County has taken steps to address concerns at the Facilities. At the time of the signing of this Stipulated Order, the County has in place certain policies, practices, and procedures, and has plans to adopt certain other policies, practices, and procedures, with respect to the Facilities. This Stipulated Order of Dismissal is based on these policies, practices, and procedures, and contemplates that the dispute between the Parties will be resolved by the continued implementation of these measures. Initiatives undertaken by the County include: a commitment to reductions in intakes at the jail by accepting male prisoners from the City of Buffalo only after arraignment; the creation of a reception housing unit in the Erie County Holding Center, subject to the approval by the New York State Commission of Corrections (“NYCOC”); undertaking staffing changes where appropriate; the continued promulgation and implementation of new and enhanced policies; and the enhancement of systems to track critical events that will serve as indicators of concerns and that will provide tools to assist leadership in operation of the Facilities. Use of the phrase “continue to” throughout this Stipulated Order is based on implementation or planned implementation of certain measures included in this Order.
I. The issue of liability with respect to protection from harm, medical care, mental health care, and environmental health and safety has not been litigated. The Parties ask the Court to approve this Stipulated Order of Dismissal without a full hearing on the merits, on the basis of the United States’ Complaint and this Stipulated Order.
J. The Parties enter into this Stipulated Order pursuant to Fed. R. Civ. P. 41(a)(2) and desire to resolve fully and finally all differences or disputes between them in connection with the remaining areas of the above captioned litigation: protection from harm, medical care, mental health care, and environmental health and safety, to avoid the further expense, disruption and uncertainty of litigation.
2 


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II. DEFINITIONS

A. “Access to care” means that, in a timely manner, a patient can (1) be seen by an appropriate clinician; (2) be given a professional clinical judgment; and (3) receive care that is ordered.
B. “Advanced Level Practitioner” (or “ALP”) means a nurse practitioner or a Physician Assistant who is currently licensed by the State of New York and provides medical care and services to prisoners at ECHC and/or ECCF.
C. A “body cavity search” is a search of an individual's anus or vagina that involves touching or probing with hands or an instrument.
D. “Corrections staff” means all ECCF/ECHC employees and contractors, irrespective of job title, whose regular duties include the supervision of inmates at ECHC and/or ECCF.

E. “Custody staff” includes correctional officers as well as correctional administration.
F. “DOJ” refers to the United States Department of Justice, which represents the United States in this matter.

G. “ECHC,” “ECCF” and “ECMCC” refers to the Erie County Holding Center, the Erie County Correctional Facility, and the Ninth Floor, Zone 2 at the Erie County Medical Center, respectively. “The Facilities” or “the Jail” shall refer to the facilities jointly, as well as any facility that is built, leased, or otherwise used, to replace or supplement either or both ECHC and ECCF.

H. “Effective date” shall be the date the Stipulated Order of Dismissal is entered by the Court.

I. “Emergency care” refers to medical, mental health, and dental care for an acute illness or unexpected health need that cannot be deferred until the next scheduled sick call or clinic.

J.

“Generally accepted correctional standards of care” means a decision by a qualified

professional that is substantially aligned with contemporary, accepted professional

judgment, practice, or standards and demonstrates that the person responsible based the

decision on such accepted professional judgment.

K. “Health care” is the sum of all actions, preventive and therapeutic, taken for the physical and mental well-being of a population. Health care includes medical, dental, mental health, nutrition, and other related services.
L. “Include” or “including” means “include, but not be limited to” or “including, but not limited to.”

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M. “Indecent exposure” by ECHC or ECCF corrections, mental health, or medical staff means the display by a staff member, contractor, or volunteer of his or her uncovered genitalia, buttocks, or breast in the presence of an inmate.

N. “J-28” means the form submitted by a responding supervisor to report unusual incidents at the Facilities (e.g., uses of force, inmate-on-inmate violent occurrences, attempted suicides, attempted escapes, possession of contraband, and use of the restraint chair). The form includes the following information: names of inmates involved, addresses, primary charge, age, bail, brief description of the incident, including time and date of the incident, officers involved, actions taken, narrative describing the incident, preliminary investigation findings, medical report if appropriate, signatures of officers involved, signature of supervisor involved, name and statements of witnesses, officers assigned to the area if appropriate, inmate statements, any releases, waivers of liability, pictures taken of the incident showing injuries or the lack thereof, and pictures of damage to property.

O. “JMD” means the Jail Management Division of the Erie County Sheriff’s Office.

P.

“Medical staff” means health professionals who, by virtue of education, credentials,

and experience, are permitted by law to evaluate and/or care for patients within the

scope of his or her professional practice, including, but not limited to Physicians,

Physician Assistants, Nurse Practitioners, Registered Nurses, and Licensed Practical

Nurses.

Q. “Mental health staff” means qualified mental health professionals who have received instruction and supervision in identifying and interacting with individuals in need of mental health services.

R. “Police Services” shall mean the division of the Erie County Sheriff’s Office that provides 24 hour police patrol and investigatory services ensuring enforcement of federal and state, civil and criminal laws.

S. A “policy” is a facility’s official position on a particular issue related to an organization’s operations.
T. “Prisoner” or “prisoners” shall be construed broadly to refer to one or more individuals detained at, or otherwise housed, held, in the custody of, or confined at ECHC, ECCF, and/or the Ninth Floor, Zone 2 at ECMCC.

U. A “procedure” describes in detail how a policy is to be implemented or carried out.
V. “PSD” means the Professional Standards Division of the Erie County Sheriff’s Office, or any successor organization(s).

W. “Psychotropic medication” means any substance used in the treatment of mental health problems or mental illness.

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X. “QET” means the Quick Entry Team as defined by current JMD policy, or any team that is formulated to replace or supplement the current QET.
Y. “Qualified health professional” means a physician, physician assistant, nurse practitioner, a registered nurse, or a practical nurse who is currently licensed by the State of New York and provides medical care and services to prisoners at ECHC and/or ECCF.
Z. “Qualified mental health professional” means an individual with a minimum of masterslevel education and training in psychiatry, psychology, counseling, social work or psychiatric nursing, who is currently licensed by the State of New York and provides mental health care and services to prisoners at ECHC and/or ECCF.
AA. “Qualified Nursing Staff” means registered nurses and licensed practical nurses currently licensed by the State of New York to deliver those health services they have undertaken to provide.
BB. “Responsible physician” is a designated MD or DO who has the final authority at a given facility regarding clinical issues.
CC. “RT” means the Response Team as defined by current JMD policy, or any team that is formulated to replace or supplement the current RT.
DD. “Restraints” means the use of handcuffs, leg irons, security belts or waist chains, and lead chains, other than when used for routine movements, as well as the restraint chair.
EE. “Serious injury” means any injury that causes (1) physical injury that creates a substantial risk of death; (2) death; (3) serious and protracted disfigurement; (4) protracted impairment of health; or (5) protracted loss or impairment of the function of any bodily organ.
FF. “Serious mental illness” refers to “serious and persistent mental illness” as currently defined by the New York State Office of Mental Health (and appended hereto as Attachment A).
GG. “Serious suicide attempt” means a suicide attempt that is considered to be either potentially life threatening or that requires hospitalization for medical treatment.
HH. “Sexual abuse” means (1) Sexual abuse by another inmate, detainee, or resident; and (2) Sexual abuse of an inmate by ECHC or ECCF corrections, mental health, or medical staff.
1. Sexual abuse by another inmate, detainee, or resident includes any of the following acts, if the victim does not consent, is coerced into such act by overt or implied threats of violence, or is unable to consent or refuse:
a. Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;
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b. Contact between the mouth and the penis, vulva, or anus;
c. Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument; and
d. Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of any person, excluding incidents in which the intent of the sexual contact is solely to harm or debilitate rather than to sexually exploit.
2. Sexual abuse by ECHC or ECCF corrections, mental health, or medical staff includes:
a. Sexual touching by staff;
b. Any attempted, threatened, or requested sexual touching by staff;
c. Indecent exposure by staff; and
d. Voyeurism by staff.
II. “Sexual touching” by ECHC or ECCF corrections, mental health, or medical staff includes any of the following acts, with or without consent and other than for purposes of medical evaluation and/or treatment:
1. Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;
2. Contact between the mouth and the penis, vulva, or anus;
3. Deliberate penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument; and
4. Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of any person, with the intent to abuse, arouse or gratify sexual desire.
JJ. “Sexual harassment” includes
1. Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate, detainee, or resident directed toward another; and
2. Repeated verbal comments or gestures of a sexual nature to an inmate, detainee, or resident by ECHC or ECCF corrections, mental health, or medical staff, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.
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KK. “Special Management Units” mean those housing units of the Facilities designated for prisoners in administrative or disciplinary segregation, in protective custody, or on suicide precautions.
LL. “Special Needs Units” mean those housing units of the Facilities designated for prisoners requiring a residential or crisis level of mental health care.
MM. “Specialty care” means specialist-provided health care (e.g., nephrology, surgery, dermatology, and orthopedics).
NN. “Stipulated Suicide Prevention Settlement” refers to the Stipulated Settlement Agreement and Order concerning Suicide Prevention and Related Mental Health Issues (Dkt. 89-2).
OO. “Strip search” means a search that requires a person to remove or arrange some or all clothing so as to permit a visual inspection of the person’s breasts, buttocks, or genitalia.
PP. “Suicide Precautions” means any level of watch, observation, or measures to prevent self-harm, including where an inmate self-reports suicidal ideations or suicide risk or is identified by correctional officers, a qualified health professional or a qualified mental health professional.
QQ. “Suspected mental illness” refers to bizarre, unusual, or uncharacteristic behavior by an individual that may indicate mental illness. Specific behavioral and emotional signs and symptoms that may constitute bizarre, unusual or uncharacteristic behavior include: disorganized speech; catatonic; hallucinatory; delusions; unable to care for self; suicidal and/or self-injurious; smearing feces; vulnerable; aggression or belligerent; manic speech; invincible; grandiose; sleep disturbance; slowing; apathy; loss of appetite; fatigue; depressed; withdrawal; lack of concentration; loss of memory; restless; and mood swings. Further explanation of these signs and symptoms will be listed in the document to be approved by the Technical Compliance Consultant (“TCC”).
RR. “TCC” means Technical Compliance Consultant, which is discussed further in Section VI below.
SS. “Timely” means the provisions of medical or mental health care consistent with generally accepted correctional standards of care, depending on the nature of the situation, such as emergency, urgent, or routine.
TT. “Train” means to instruct in the skills addressed to a level that the trainee has the demonstrated proficiency to implement those skills. “Trained” means to have achieved such proficiency.
UU. “Unified Health Record” means the records of all health care provided to the inmate while in the County’s custody.
VV. “Use of force” means the application of physical, mechanical, or chemical measures to compel compliance by an unwilling subject. “Use of force” will not include un-resisted
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handcuffing or un-resisted shackling of prisoners during movement if no other force is used.
WW. “Voyeurism” by ECHC or ECCF corrections, mental health, or medical staff means an invasion of an inmate’s privacy by staff for reasons unrelated to official duties, such as peering at an inmate who is using a toilet in his or her cell to perform bodily functions; requiring an inmate to expose his or her buttocks, genitals or breasts; or taking images of all or part of an inmate’s naked body or of an inmate performing bodily functions, and distributing or publishing them.
III. SUBSTANTIVE PROVISIONS
Defendant agrees to continue taking all actions necessary to implement the substantive provisions of this Stipulated Order listed below.
A. PROTECTION FROM HARM
Defendant agrees to continue to develop and implement policies and procedures to provide prisoners with a safe and secure environment and continue to take all reasonable steps to protect them from harm.
1. Classification
i. The County agrees to continue using its existing classification tool that it developed in concert with the New York State Commission of Corrections, as edited by the Parties.
ii. The County plans to stop receiving pre-arraigned male prisoners from the City of Buffalo on or about October 2011, and that it will continue to receive prearraigned female prisoners from the City of Buffalo only on an interim basis. The County will continue its current plan to develop and implement policies and procedures to create a reception housing unit in ECHC, subject to the approval by the New York State Commission of Corrections, consisting of a dorm unit, linear units with enhanced 15 minute supervision, and a medical/mental health screening area. The reception center policies and procedures shall address the housing of unclassified prisoners in accordance with risk assessment.
iii. The County will develop and implement a policy to address the housing of unclassified prisoners in accordance with risk assessment.
2. Security Staffing: The County agrees to create a written staffing plan for the Facilities to assist administration in operating the Facilities. This plan will memorialize staffing efforts already underway by the County.
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3. Safety and Supervision
a. Correctional officers will continue to conduct security rounds at least once every half hour, at irregular intervals, which view the inmate inside of each cell, including pre-classification and linear units. These rounds will continue to be documented in an activity log or other written or electronic form. Video surveillance may be used to supplement, but must not be used to replace, rounds by correctional officers.
b. The County agrees to continue using video cameras to film all uses of force where the QET is deployed. The County will maintain a log of all video footage of uses of force.
c. The County will continue to monitor video surveillance cameras in the following areas: intake processing/activity areas at ECHC, administrative or disciplinary segregation (i.e., Gulf East), constant observation units, and ECHC elevators. Video footage will be preserved for a period of ninety (90) days. In the event that the County receives notice of or identifies allegations of misconduct and/or force resulting in serious injury to staff or inmates, such footage will be preserved for three (3) years.
d. Correctional officers assigned to special needs units on a consistent basis will participate in the treatment planning process set forth in section C(4)(c)(ii).
e. The County will continue to make all reasonable efforts to maintain consistency in the assignment of corrections staff to special needs units and will conduct periodic reviews of the appropriateness of the assignments.
4. Access to Information
a. The County will ensure that all newly admitted prisoners receive information, through an inmate handbook and, at the discretion of the County, an orientation video, regarding the following: facility rules and regulations, how to report misconduct, how to report sexual abuse or assault, the process for accessing medical and mental health care, emergency procedures, rules for sending and receiving mail, the visitation process, the disciplinary process, and how to access the grievance process.
b. The County will develop a language access policy that includes: a language access coordinator on each shift, use of interpreters or a working language line, and a roster of bilingual employees. The language access policy will also include:
i. Policies and procedures for ensuring appropriate signs through the Facilities in English and Spanish, and that interpreters are reasonably proficient;
ii. Translation of materials on facility rules and services, including any orientation video, if any, into Spanish;
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iii. Policies to assist other limited and non-English speakers and prisoners with low literacy on understanding the Facilities rules and policies.
c. The County will continue to ensure that grievance forms are available on all units. If a prisoner complaint is resolved informally prior to the filing of a grievance, this informal resolution will be documented. The County will assist prisoners who are limited or non-English speakers, prisoners with low literacy, and prisoners who have physical or cognitive disabilities in accessing the grievance system.
5. Sexual Abuse
a. The County will develop and implement a policy on prevention, detection, reporting, and investigation of sexual abuse, including prisoner-on-prisoner and staff-on-prisoner sexual abuse. This written policy will include all of the elements set forth in Section A(5), as well as clearly delineated steps that JMD and PSD staff must take to investigate reports of sexual abuse.
b. The County will designate a senior-level staff person to be sexual abuse prevention coordinator. The coordinator will oversee the County’s development and implementation of policies on sexual abuse at the Facilities.
c. The County will continue to prohibit cross-gender strip searches or cross-gender visual body cavity searches of the vagina or anus except in case of emergency within the Facilities. Body cavity searches will only be performed, if at all, by a qualified physician or ALP in a clinical setting. All cross-gender strip searches and cross gender visual body cavity searches will be documented and any violation of these policies must be documented in a written report.
d. The County will continue to prevent porters or trustees from having access to physical locations where there are opposite-sex prisoners unless they are within sight and sound of corrections staff at all times. Inmate porters and trustees will never access opposite-sex housing units or holding areas.
e. The County will continue to offer all victims of sexual abuse alleged to have occurred in the Facilities access to forensic medical exams performed by Medical staff, whether onsite or at an outside facility, without financial cost. Informed acceptance or refusal of a forensic medical exam must be documented in writing.
f. The County will ensure appropriate counseling services are made available to victims of sexual abuse, provided by a qualified staff member or a victim advocate from a community-based organization that provides services to sexual abuse victims.
g. The County will continue to require all Facility employees to report immediately: (1) any knowledge or information regarding an incident or alleged incident of
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sexual abuse that occurred in the Facilities, transport vehicles, and off-site lock­ ups under the immediate control and supervision of ECSO and JMD staff; (2) retaliation against prisoners or staff who reported abuse.
h. The County will provide prisoners and staff with multiple ways for privately reporting possible abuse and/or retaliation, including sexual abuse and/or harassment, and retaliation by other prisoners or staff for reporting sexual abuse and sexual harassment. This includes accepting reports made verbally, in writing, confidentially, or anonymously, and from third parties including other prisoners, Facility employees, contractors, volunteers, and the prisoner’s family or legal representation.
i. All reports of sexual abuse shall be forwarded immediately to the sexual abuse prevention coordinator and PSD. PSD and Police services will investigate, as appropriate, and document any resulting investigations.
j. The County will ensure prompt corrective action following any finding or recommendation resulting from either an administrative or criminal investigation surrounding sexual abuse or sexual harassment. This will include, but not be limited to:
i. Documented sanctions commensurate with the nature and circumstances of the acts committed, the staff member’s disciplinary history, and the sanctions imposed for comparable offenses by other staff with similar histories;
ii. Removal from post where sexual abuse or harassment occurred; and
iii. Documented review of County practices following verified occurrence of sexual abuse or sexual harassment and changes to policy and/or practice, if warranted.
k. The County will train all employees who have contact with prisoners, including medical and mental health care staff, and those contractors who provide medical and mental health care services to inmates in the ECHC and ECCF, on:
i. The County’s policies and procedures for the prevention, detection, reporting, and investigation of sexual abuse and sexual harassment;
ii. Anti-retaliation protection for prisoners and staff who report sexual abuse and sexual harassment;
iii. Dynamics of sexual abuse in confinement; iv. Common reactions of sexual abuse victims; v. How to detect and respond to signs of threatened and actual sexual abuse; vi. Duty to report sexual abuse and sexual harassment; vii. How to avoid inappropriate relationships with prisoners; viii. How to communicate effectively and professionally with prisoners.
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l. The County will ensure that all full- and part-time qualified health and qualified mental health professionals who work regularly in ECHC and ECCF and have contact with prisoners have been trained in: i. How to detect and assess signs of sexual abuse; ii. How to preserve physical evidence of sexual abuse; iii. How to respond effectively and professionally to victims of sexual abuse; iv. How and to whom to report allegations or suspicions of sexual abuse.
m. The County will ensure that PSD and other staff assigned to investigate allegations of sexual abuse or harassment occurring within the Facilities receive training, in addition to the training outlined in K. (i)-(iv), on conducting sexual abuse investigations in confinement settings. This training will include: i. Techniques for interviewing sexual abuse victims; ii. Proper use of Miranda and Garrity warnings; iii. Sexual abuse evidence collection in confinement settings; and iv. The criteria and evidence required to substantiate a case for administrative action or prosecution referral.
6. Use of Force
a. The County will continue to review its policies and amend them where appropriate to ensure that they include comprehensive use of force policies, procedures, and annual training to ensure that prisoners are not subjected to excessive use of force. These policies and procedures will:
i. define permissible and impermissible uses of force; ii. require a detailed statement from each officer involved in or a witness to
each use of force describing the type and level of force used; iii. include the use of de-escalation tactics in order to prevent unnecessary
uses of force; and iv. require a medical examination following uses of force where appropriate;
and v. govern the use of the RT.
b. The County will continue to require that an ECHC or ECCF lieutenant, captain, chief, first deputy superintendent, or superintendent conducts a documented review of all J-28 reports within 72 hours of each incident for completeness and appropriateness of the use of force. Any possible use of excessive force identified by the reviewer will be referred to PSD for investigation.
c. The County will continue to maintain policies and procedures on the appropriate use of chemical spray on prisoners, and will continue to train correctional officers on this policy and procedure.
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7. Review of Incidents
a. The County will develop a written policy to reflect its current practice of tracking of trends in use of force and prisoner-on-prisoner assault incidents, including location of incident, prisoners and/or staff involved in the incident, brief description of incident, and whether prisoner(s) involved have an identified or suspected mental illness. The policy will include a Chief of Operations or higher level JMD administrative personnel and, if appropriate, the Director of Intensive Adult Mental Health Services, or his designee, will be involved in reviewing trends and developing and implementing corrective action recommendations as appropriate.
b. Review of trends and formulation of corrective action will include review of staff personnel files, prisoner grievances, J-28 reports, use of force reports, and any previous PSD investigations, and prisoner and staff disciplinary reports as appropriate.
B. MEDICAL CARE
1. Policies and Procedures: The County will continue to review its policies and amend them as appropriate to ensure that they reflect current practice and address all substantive provisions of this Stipulated Order pertaining to Medical Care. The County will ensure that each policy and procedure is reviewed at least annually, and revised as necessary under the direction of the responsible physician. Each policy and procedure will bear the date of the most recent review or revision and the signature of the responsible physician, verifying approval of each review or revision.
2. Medical Autonomy: The County will continue to ensure that clinical decisions and actions regarding health care provided to inmates are the sole responsibility of qualified health professionals, and that, subject to legitimate security concerns, custody staff do not interfere with an inmate’s access to care as determined by the clinical decisions of Medical staff.
3. The County will continue to ensure prisoners’ medical privacy and confidentiality through the following:
a. The County will implement a revised version of Policy JMD-M 5.00.00, to prohibit any non-medical staff from receiving a patient’s refusal of medication, and to provide that such notice of refusal is given only to qualified health professionals, except as may be required by NYCOC.
b. The County will continue to ensure that discussion of patient information and clinical encounters are conducted with reasonable privacy, subject to legitimate security concerns and emergency situations, and in a manner that does not discourage the patient’s subsequent use of health services. The County will ensure that custody staff is present in the room during clinical encounters only if
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the patient poses a probable risk to the safety of the health care professionals or others.
c. The County will continue to ensure that custody staff and interpreters who observe or hear clinical encounters receive documented training on how to maintain patient confidentiality.
d. The County will continue to ensure that (1) health records are maintained under secure conditions separate from correctional records; and (2) health records are transported in such a fashion to prevent review of records by non-health staff.
4. Training of Custody Staff: The County will continue to ensure that all custody staff receive training on recognizing and responding to medical urgencies and emergencies; identification, timely referral, and proper supervision of inmates with serious medical needs; and identifying the signs and symptoms of drug and alcohol withdrawal. The County will continue to document and track training and attendance by required staff. Prior training in these areas is sufficient to satisfy this provision for management-level staff.
5. Management of Health Records: The County will continue to ensure that one unified health record is maintained for each prisoner that includes complete records for both physical and mental health and a complete list of medications the prisoner is taking. The County will also ensure that such unified health records are available to all Medical staff who are necessary to facilitate continuity of care, early and correct diagnosis based on review of prior symptoms and findings, and coordination of treatment by multiple clinicians.
a. The County will ensure that the unified health records are available at the time of treatment (except during intake medical and/or mental health screenings) to clinical staff at the Facilities where a prisoner receives treatment, and that clinical notes and documentation are placed in the unified health record by staff within 72 hours of creation by facility medical staff or receipt from outside providers.
b. Transfer of Health Records/Information:
i. Whenever a prisoner is transferred to an off-site facility for care, Medical staff at the sending facility will ensure that all relevant medical information is provided to that facility as permitted by law. Upon return, the County will take all reasonable steps to obtain documentation or records of prisoner care received off-site within 72 hours of intake and will follow up as appropriate.
ii. Whenever a prisoner is transferred between ECHC and ECCF, medical and/or mental health staff at the sending facility will continue to ensure that all relevant information is provided to the other facility. Medical
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and/or Mental Health staff at the receiving institution will review the health record of incoming prisoners within twenty-four (24) hours of their arrival. Medical and/or Mental Health staff will also take whatever steps are necessary to reestablish the prisoner on medications and treatment programs and to ensure that the prisoner keeps any health care appointments, rescheduling as necessary.
c. The County will continue to develop and implement a policy and procedure to notify the responsible physician or his/her designee in writing whenever a prisoner is scheduled to be transferred from the County’s custody to another facility as soon as such information is available prior to the prisoner’s transfer. Upon such notification, the responsible physician will prepare and send with the prisoner a transfer summary listing the prisoner’s major health problems and current medications and dosages.
d. The County will continue to develop and implement a policy and procedure to provide prisoners written instructions, including a fax number, where future medical providers can request a summary of the prisoner’s medical treatment, including a listing the prisoner’s major health problems and current medications and dosages.
6. Medication Administration: The County will develop and implement policies and procedures to ensure that all medications are appropriately prescribed, stored, controlled, dispensed, and administered in accordance with all applicable laws and through the following:
a. The County will continue to ensure that all Medical staff who administer medications to prisoners are permitted to do so by state law and in accordance with the scope of his or her license.
b. The County will continue to ensure that initial doses of prescribed medications are delivered to the patient within 48 hours of the prescription, unless it is clinically required to deliver the medication sooner.
c. The County will continue to ensure that prisoners entering the Facilities continue to receive previously prescribed medications or acceptable alternate medications, within 48 hours of entry, unless the facility physician makes an alternative clinical judgment.
d. The County will continue to ensure that Medical staff who administer medications to prisoners document in the prisoner’s Medical Administration Record (1) each date and time medication is administered, and (2) the date and time for any refusal of medication, and will ensure that the prisoner’s unified health record is updated within one (1) week of the end of each month to include a copy of the prisoner’s Medical Administration Record for that month. All documentation will include the name and dosage of each dispensed
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medication. The County will develop a policy and procedure regarding medication non-compliance.
e. The County will continue to supply sufficient medication for the period of transit for prisoners who are being transferred to another correctional facility or other institution. If the prisoner’s reported medication is discontinued or changed, a qualified health professional must document the reason for the change in the health record.
f. Upon request, the County will provide discharged prisoners who have been in the County’s custody for thirty (30) consecutive days with access to a seven-day supply of prescription medications, unless a different amount is clinically appropriate, to serve as a bridge until prisoners can arrange for continuity of care in the community. Every prisoner will receive a written notice of how to request medication.
7. Access to Care: The County will ensure that all prisoners have access to care to meet their serious medical needs through the following:
a. The County will continue to ensure that the medical, dental, and mental health request (“sick call request”) process for prisoners provides prisoners with access to care. The sick call request process will include:
i. written or electronic medical/mental health care request (i.e., “sick call slips”) are available in English and Spanish;
ii. a confidential collection method in which the request slips are collected by Medical staff seven (7) days per week;
iii. the opportunity for illiterate inmates and inmates who have physical or cognitive disabilities to access medical and mental health care; and
iv. the opportunity for all inmates, irrespective of primary language, to access medical and mental health care.
b. Sick call requests will continue to be screened by an RN or Advanced Level Practitioner within twenty-four (24) hours of daily collection, and qualified health professionals will respond to the sick call request within 48 hours, or sooner if clinically indicated. Prisoners will be scheduled to be seen, if clinically indicated, by a qualified health professional consistent with the degree of urgency indicated by the sick call request. Qualified health professionals will completely and clearly respond to each complaint in a sick call request in a professional manner. Evaluation and treatment of prisoners in response to a sick call request will continue to occur in a clinically appropriate setting.
c. The County will continue to develop and enhance its system for documenting and tracking sick call requests. Medical staff will document the date collected and a brief summary of each sick call request, the date that the prisoner was seen in response to the request, the disposition of the medical visit (e.g., referral;
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whether inmate scheduled for acute care visit), and, if follow-up care is necessary, the date and time of the prisoner’s next appointment. The County will continue to document the reason for and disposition of the medical or mental health care request in the prisoner’s unified health record.
8. Emergency Care: The County will continue to ensure that all prisoners with emergency medical needs receive timely and clinically appropriate care, including prompt referrals and transports for outside care when medically necessary.
9. Follow-Up Care:
a. Prisoners who receive an emergency department visit or who are admitted to a hospital will be evaluated upon their return to the Facilities by a qualified health professional. A Qualified Health Professional will review the records of Prisoners who receive any other offsite health care and follow up as appropriate. The Facilities will make reasonable efforts to obtain the off-site provider’s discharge instructions or other documentation. A Qualified Health Professional will review and include the off-site provider’s documentation in the prisoner’s unified health record, upon receipt by the Facility, and will document the follow-up care provided.
b. The County will continue to ensure that prisoners who have been referred for additional off-site specialty care are scheduled for timely off-site care appointments and transported to their appointments. Prisoners awaiting off-site care will be seen by a Qualified Health Professional as medically necessary, to evaluate the current urgency of the problem and respond as medically appropriate.
10. Chronic Disease Care: The County will ensure that prisoners with identified chronic diseases are enrolled in a chronic disease program to decrease the frequency and severity of the symptoms, prevent disease progression and complication, and foster improved function. The chronic disease program will include the following:
a. The Responsible Physician will adopt and implement appropriate written clinical practice guidelines for chronic and communicable diseases, such as HIV, hypertension, diabetes, asthma, and elevated blood lipids, which are consistent with generally accepted guidelines.
b. The Responsible Physician will maintain a current registry of prisoners with chronic illnesses to ensure that these prisoners receive necessary diagnosis, monitoring, and treatment.
11. Dental Care: The County will ensure that each prisoner receives medically necessary dental care for a serious medical need under the direction and supervision of a dentist licensed in New York State, including care and follow-up to address pain and interference with normal activities, rather than extractions only. Access to care will be
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ensured by incorporating access to dental care into the sick call request process set forth required by Section 7, supra.
12. Care for Pregnant Prisoners: The County will continue to ensure that pregnant prisoners receive timely and clinically appropriate prenatal care, specialized obstetrical services when clinically indicated, and postpartum care through the following:
a. providing pregnant prisoners with regularly scheduled medical examinations for which custodial staff make reasonable accommodations in security procedures to permit pregnant prisoners’ attendance;
b. providing laboratory and diagnostic tests, including HIV testing and prophylaxis when clinically indicated;
c. compliance with NY Correction Law § 611, including the restraint provisions of § 611.
d. maintaining an agreement with an outside health care facility for delivery;
e. documenting in the prisoner’s unified health record all postpartum care; and
f. coordinating with, and providing referrals, if necessary, to mental health staff in the treatment of postpartum depression.
13. Dietary Allowances and Food Service:
a. Medical Diets: The County will continue to ensure that clinically necessary medical diets are provided to prisoners with health conditions that require such diets.
i. Orders for medical diets will include the type of diet, the duration for which it is to be provided, and any special instructions.
ii. Head cooks responsible for preparing medical diets will receive documented training on preparing medical diets, including appropriate substitutions and portions.
b. The County will continue to ensure that all pregnant prisoners receive a clinically appropriate pregnancy diet and vitamin supplements.
c. When requested by a prisoner, the County will ensure that special diets are provided when prisoners’ religious beliefs require adherence to religious dietary laws.
14. Health Screening of Food Service Workers: The County will continue to ensure that all prisoners involved in the preparation of the food service receive are cleared by a
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physician or ALP, prior to initial assignment, or after any illness, to ensure freedom from diarrhea, skin infections, and other illnesses transmissible by food or utensils.
15. Treatment and Management of Communicable Disease: The County will further develop and implement an infectious disease control program, including testing, monitoring, and treatment programs for management of communicable diseases, including: all inmates will be screened upon arrival for TB; all inmates will be cultured for symptomatic diseases as clinically indicated; and all culture results will be screened for epidemiologically linked outbreaks. The County will adequately maintain statistical information necessary to treat and control communicable diseases.
16. Sexual Abuse: The County will continue to ensure that any prisoner who is victimized by sexual abuse receives immediate medical care, including evaluation for injury, sexually-transmitted infection or adverse emotional response, and gathering/preservation of potential evidence.
17. Quality Management: The County will enhance existing Quality Improvement activities to ensure that the provisions of this Stipulated Order are adequately implemented and reviewed for quality assurance and improvement.
a. Medical Review Committee: The Facilities will have a Health Review Committee, for which there will be a Medical Review Sub-Committee, comprised of at least the Responsible Physician and Head Nurse for each Facility, which will:
i. oversee the implementation of medical policies and procedures as set forth by this Stipulated Order;
ii. perform quarterly quality management reviews of the access to care/sick call process
iii. review and analyze individual and aggregate medical data, including data on prisoners who have diabetes, have had seizures, have been taken to the hospital for urgent or emergent care, pregnant prisoners, prisoners who have had an adverse reaction to medications, and prisoners with complaints of denial of access to care; and
iv. track performance and implement remedies for identified deficiencies.
b. Review of Clinical Care by the Responsible Physician: The Responsible Physician of each Facility or his/her designee will conduct documented quarterly audits of a sampling of prisoners’ unified health records and other medical documentation to ensure that Medical staff are providing appropriate clinical care and maintaining health record documentation in accordance with the provisions of this Stipulated Order.
C. MENTAL HEALTH CARE
The County will provide mental health care in accordance with the following provisions:
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1. Incorporation of Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues
a. Except as modified by any terms set forth below, the Stipulated Suicide Prevention Settlement (Dkt. 89-2) is incorporated into and made part of this Stipulated Order.
b. To the extent that any provisions of this Stipulated Order and the Stipulated Suicide Prevention Settlement are in conflict, this Stipulated Order will govern.
2. Screening and Assessment
a. The County will continue to utilize the New York State Commission on Corrections (“NYSCOC”) screening form, as modified, consistent with the Stipulated Suicide Prevention Settlement, section III(A)(1)(a).
b. The County will continue to administer the screening and identification process in a manner consistent with the parties’ Stipulated Suicide Prevention Settlement, sections III(A)(1)(b)-(f), as modified by the provisions below.
c. The County will continue to develop and implement its plan to provide Qualified Mental Health Professional coverage in the reception center seven (7) days a week during peak hours (“peak coverage”), and will designate an on-call psychiatrist for the reception center at all times. During times when there is no in-person QMHP coverage in the reception center (“off-peak coverage”), the County will designate an on-call QMHP.
d. If the initial mental health screening is “positive,” meaning that mental health care concerns are identified as will be determined by policy, then:
i. During peak hour coverage, the individual will be seen by a QMHP for mental health assessment within four (4) hours, or sooner, if clinically indicated.
ii. During off-peak coverage, the nurse will notify the on-call QMHP, who will do one of the following, based on clinical determination: (a) come in and perform an in-person assessment within four (4) hours; (b) place the individual on constant observation, and an in-person assessment by a QMHP will be completed no later than the beginning of the next shift of peak coverage; (c) make a non-emergent referral to the Forensic Mental Health Service (“FMHS”); or (d) refer to ECMCC for assessment. Emergent Referrals made through options (a) and (b) in this provision will include a phone consultation with a psychiatrist, doctoral level mental health clinician, until the Qualified Mental Health Professional is not required to consult with these clinicians as determined by the process described in section 3(c)(i),
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infra, and consistent with the crisis care admission procedures set forth in Section 4(d)(iii)(3), infra.
e. The County will ensure:
i. That all mental health staff performing mental health assessments receive comprehensive training concerning the policies, procedures, and practices for the mental health screening, assessment and referral processes. This training policy will include an assessment of each attendee’s comprehension of the policies, procedures, and practices for the mental health screening, assessment and referral processes. A record will be kept of each person’s attendance at the training, and passage of the assessment.
ii. That all nurses performing health screenings receive comprehensive training concerning the policies, procedures, and practices for the mental health screening and referral process. This training policy will include an assessment of each attendee’s comprehension of the policies, procedures, and practices for the mental health screening and referral process. A record will be kept of each person’s attendance at the training, and passages of the assessment.
f. The County will ensure that all prisoners housed in the Facilities receive a mental health screening as part of the medical intake screening within 3 days of admission. The County agrees to augment its screening form to include appropriate questions to identify mental health concerns and/or needs, in consultation with the TCC, and to conduct training on administering these questions for the practitioners performing the medical intake screening. If appropriate, the prisoner will be referred to the FMHS by the practitioner performing the screening. The screening will be documented in each prisoner’s unified health record.
3. Referral Process and Access to Care
a. The County will continue to develop and implement written policies and procedures governing referrals to FMHS, including but not limited to procedures for referral, levels of referral based on acuteness of need and medication management, and timelines within which a prisoner referred to the FMHS must be seen by a Qualified Mental Health Professional, psychiatrist, psychologist or psychiatric nurse practitioner, as set forth below.
i. Levels of referral based on acuteness of need must include, at minimum, “Emergent Referral,” “Urgent Referral,” and “Routine Referral.”
ii. “Emergent Referral” will include prisoners who present an increased risk of harming themselves or others, as well as prisoners determined to be severely decompensated, or at imminent risk of severe decompensation.
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b. Referrals to the FMHS may be made at the time of initial screening, medical intake screening, or at any time by prisoner self-referral, or by staff referral (including custody staff, mental health staff, and medical staff). Response times for all referrals will meet the timelines outlined in this section.
c. Qualified Mental Health Professionals, excluding psychiatrists and doctoral level licensed mental health clinicians, will participate in a credentialing process for referrals and crisis care admissions. The credentialing process will include completion of all of the following over a time period of at least three months: 30 satisfactory reviews by a credentialing psychiatrist of assessment forms completed by a QMHP; 10 satisfactory case presentations by a QMHP to a credentialing psychiatrist; and satisfactory concurrent review by a credentialing psychiatrist of at least 15 non-Emergent Referrals.
i. Until a QMHP is credentialed through this process, the QMHP will consult with a psychiatrist or a doctoral level licensed mental health clinician on Emergent and Urgent Referrals, and will not be designated as on-call for off-peak coverage unless a psychiatrist indicates in writing that such consultations are no longer necessary.
d. Prisoners designated “Emergent Referral” to the FMHS will be seen by a Qualified Mental Health Professional within 4 hours. If clinically indicated, the prisoner will be seen by a psychiatrist within 24 hours (or the next business day), or sooner, if clinically indicated. Emergent Referrals must be placed on constant observation at least until seen by a Qualified Mental Health Professional.
e. Prisoners designated “Urgent Referral” to the FMHS will be seen by a Qualified Mental Health Professional within 24 hours, and a psychiatrist, when clinically indicated.
f. Prisoners designated “Routine Referral” to the FMHS will be seen by a Qualified Mental Health Professional within 5 business days, and a psychiatrist, when clinically indicated (e.g., for medication and/or diagnosis assessment). The written policies and procedures governing referrals will include criteria for determining if a referral is not subject to this timeline requirement (e.g., a face to face contact is not clinically indicated).
4. Provision of Mental Health Treatment
a. The County will continue to develop and implement policies and procedures that ensure adequate access to mental health treatment for prisoners housed at ECHC and ECCF.
b. Each prisoner on the forensic mental health caseload will receive a written initial treatment plan at the time of evaluation. The treatment plan will be kept in the prisoner’s unified health record.
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c. Each prisoner on the forensic mental health caseload who remains in the facility for 10 days following evaluation will receive a written comprehensive treatment plan. The treatment plan will be kept in the prisoner’s health record.
i. A written comprehensive treatment plan for prisoners at the outpatient level of care will be completed within 30 days of completion of the initial treatment plan. It will target medication management and discharge planning, and will include determination of the need for frequency of QMHP interaction. The treatment planning process for the outpatient level of care will include at least a forensic mental health counselor and psychiatrist or doctoral level licensed mental health clinician, and will be reviewed annually, or sooner, if clinically indicated.
ii. The comprehensive treatment plan for prisoners at the residential level of care or higher will be completed within 14 days of admission to the residential treatment program. It will be developed by the interdisciplinary treatment team, which will include the forensic mental health counselor, the treating psychiatrist, and custody staff. The prisoner will be encouraged to participate in the treatment planning process. Nursing staff will be encouraged to participate when clinically appropriate.
iii. The interdisciplinary treatment team for residential or higher level of care will meet to discuss and review the prisoner’s treatment no less than once every 30 days for the first three months of care, and once every 90 days thereafter.
iv. Whenever there is a change to a prisoner’s level of care, the treatment plan will be reviewed by the appropriate treatment team.
d. Prisoners diagnosed with mental illness will be classified according to the level of mental health care required to appropriately treat them. Level of care classifications will include outpatient care; residential care; crisis care; crisisstabilization care; and inpatient care.
i. Prisoners classified as requiring outpatient level of care will receive access to: 1. Psychotropic medication, as clinically appropriate; 2. Individual counseling and behavioral therapy with a forensic mental health counselor with a frequency as determined in the treatment plan; and 3. Evaluation and assessment by a psychiatrist, when clinically indicated, at a frequency of no less than once every 30 days if prescribed psychotropic medication, until stabilized on medication, and every 90 days thereafter.
ii. Prisoners classified as requiring residential level of care will receive access to: 1. Psychotropic medication, as clinically appropriate;
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2. Individual counseling and behavioral therapy with a forensic mental health counselor at a frequency of no less than once per week;
3. Evaluation and assessment by a psychiatrist at a frequency of no less than once every thirty days;
4. Access to at least one group therapy session per week.
iii. Prisoners classified as requiring crisis level of care will:
1. Be placed on immediate constant observation or suicide precautions;
2. During peak hours, a prisoner placed at the crisis level of care will be seen by a Qualified Mental Health Professional within 4 hours, and a psychiatrist the same day.
3. During non- peak hours, a prisoner placed at the crisis level of care will be admitted by a QMHP, credentialed pursuant to the process described in Section 3(c), supra, and the QMHP will facilitate a phone consultation with a psychiatrist within 4 hours of admission. If the psychiatrist determines that the prisoner requires acute medication management, the psychiatrist will either come into the Facility to see the prisoner in person, or the prisoner will be sent to ECMCC for assessment. If an in-person assessment by a QMHP is not completed at the time of admission, it will be completed no later than the beginning of the next period of on-site coverage.
4. After admission, all prisoners at the crisis level of care will be seen by a Qualified Mental Health Professional daily, 7 days per week, and by a psychiatrist or psychiatric nurse practitioner daily during the 5 days of the week for which there is psychiatric coverage.
5. Treatment plans for prisoners discharged from crisis level of care will be developed and reviewed by the interdisciplinary treatment team.
6. Prisoners discharged from the crisis level of care will receive a follow-up assessment and, at minimum, clinical contact with a Qualified Mental Health Professional on a weekly basis for two weeks. Subsequent mental health treatment (including a description of planned clinical contacts and basis for frequency) shall be documented in the treatment plan and via progress notes.
7. Receive other care in a manner consistent with the Stipulated Suicide Prevention Settlement.
iv. The County agrees to continue its arrangement with Erie County Medical Center Corporation (“ECMCC”) to provide a crisis-stabilization level of care to prisoners, and agrees to increase the number of crisis stabilization beds at ECMCC to at least 4 beds, exclusive of the beds used for CPEP
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(Comprehensive Psychiatric Emergency Program), subject to any required approvals by New York Office of Mental Health and New York Department of Corrections. Prisoners classified as requiring crisis-stabilization care will be transferred within 72 hours to the custodial unit at ECMCC.
1. Constant observation and/or suicide precautions may be temporarily used while waiting to transfer a prisoner to an inpatient bed at ECMCC, but for no longer than 72 hours.
2. No prisoner will be released from ECMCC back to ECHC or ECCF who continues to need a crisis-stabilization level of care.
3. The County will maintain a waiting list of prisoners referred to a crisis-stabilization level of care if no beds are available, and will track wait times and lengths of stay for crisis-stabilization beds.
4. The County will review its utilization of crisis-stabilization beds at ECMCC on an annual basis, and complete a written assessment of whether additional beds are needed. If additional beds are needed, the County will make good faith efforts to arrange for additional beds at ECMCC, or elsewhere, sufficient to meet the above requirements.
5. Prisoners discharged from the custodial unit at ECMCC and transferred back to ECHC or ECCF will be seen by a Qualified Mental Health Professional within the same day. The current treatment plan will be reviewed and modified as clinically appropriate at that time.
v. The Technical Compliance Coordinator will work with the County to assess the need for inpatient beds, and develop a plan within six months of the Effective Date for the delivery of services to prisoners in need of inpatient mental health care.
vi. Qualified Mental Health Professionals will complete rounds of all administrative or disciplinary segregation units outside the Delta unit, or other units where prisoners are locked down, on a weekly basis. These rounds will be logged.
5. Staffing
a. The County agrees to increase its psychiatric staff to 2.75 Full-Time Equivalents (“FTEs”), with significantly decreased court-ordered evaluation caseload. The County recently increased its licensed QMHPs by 5 FTEs; it agrees to maintain this level of service.
b. No later than July 1, 2012, the County, with the assistance of the TCC, will complete an analysis of current and necessary staffing levels for mental health staff. The County agrees to make good faith efforts to add additional staff, if necessary, to meet the staffing need identified by the assessment.
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c. The County’s mental health staffing will include a Board certified, licensed supervising or lead psychiatrist, whose work includes supervision of other treating psychiatrists.
d. The County will continue to ensure that all persons providing mental health treatment meet applicable state licensure and/or certification requirements, and practice only within the scope of their training and licensure.
e. The County will continue to develop and implement written training protocols for mental health staff, including an introductory training provided to new hires and an annual refresher training on relevant topics, which will include policies and procedures for assessment and referrals of prisoners with mental illness, identification and care of prisoners with mental illness, role in approval and review of disciplinary procedures and uses of restraints or force, and suicide prevention. The County will document and track training and attendance by staff, who must attend the initial and annual training provided for in this provision in order to continue their employment.
f. The County will continue to develop and implement written training protocols in the area of mental health for custody staff, including an introductory training provided to new hires and an annual refresher training on relevant topics, which will include training on basic mental health information (e.g., recognizing mental illness, specific problematic behaviors, additional areas of concern); identification, timely referral, and proper supervision of prisoners with serious mental health needs; appropriate responses to behavior symptomatic of mental illness; and suicide prevention. The training will be conducted by a qualified mental health professional. The County will document and track training and attendance by staff, who must attend the training provided for in this provision in order to continue their employment.
g. The County will draft written policies and procedures that reflect its practice of appropriate and regular communication between mental health staff and custody staff regarding prisoners with mental illness, including communication about concerning behavior and signs of distress. The County agrees to continue its current practice of meetings at least twice per day between mental health and custody staff.
6. Confidentiality
a. The County will develop and implement written policies and procedures regarding confidentiality of mental health information. These policies should recognize that sharing of information between mental health staff and custody staff is crucial for effectively treating and managing inmates with mental illness, and address the responsibility of both mental health staff and custody staff to keep patient information confidential.
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b. The County will ensure that custody staff understand policies and procedures regarding confidentiality of mental health information. Custody officers assigned to the residential and crisis care mental health units will participate in interdisciplinary treatment team meetings, and the County will make reasonable efforts to ensure that assignments to these posts will be at least six months in duration.
7. Documentation and Record-keeping
The County will ensure that unified health records are adequate to assist in providing and managing the medical and mental health needs of prisoners at the County Facilities, as set forth in the Medical Care Section of this Agreement.
8. Medication Management
a. The County will further develop and implement policies and procedures to ensure the accurate administration of medication and maintenance of medication records, as set forth in the Medical Care Section of this Agreement.
b. The County will continue to develop and implement a medication continuity system so that incoming prisoners receive psychotropic medications for serious mental health needs in a timely manner, as medically appropriate.
i. The County will develop a written policy and procedure for medication continuity that includes a list of critical psychotropic medications, and a psychotropic medication verification process;
ii. Upon entry to the Facilities, if a prisoner’s reported medication is verified, a prescribing clinician should be contacted to determine whether a bridge order is indicated. If such a medication is ordered, the prisoner will receive the first dose of medication within 24 hours of medication verification, in the case of a critical psychotropic medication, or 48 hours, in the case of a non-critical medication. If a bridge order is not ordered, the reason for such a decision will be documented in a prisoner’s unified health record;
iii. If a prisoner reports currently receiving a critical psychotropic medication, that prisoner will be designated an Emergent/Urgent (depending on the prisoner’s clinical presentation) Referral to the FMHS.
iv. If the incoming prisoner’s reported non-critical medication is not verified within 24 hours, that prisoner will be referred to the FMHS at the referral level corresponding to the reported psychotropic medication and reported and/or observed symptoms, as identified in the County’s referral policy and procedure. Bridge psychotropic medication orders may be issued in consultation with mental health staff.
c. Whenever a psychotropic medication is discontinued, added, or changed (excluding dosage changes), the County will ensure that the psychiatrist or other
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prescriber making such changes documents the reason for such change in the prisoner’s unified health record.
d. The County will amend its psychotropic medication review form to require that the prescribing psychiatrist document informed assent by prisoners. Whenever a psychotropic medication is discontinued, added, or changed (excluding dosage changes and bridging medications prescribed upon admission to the ECHC), the psychiatrist or other prescriber must explain to the prisoner the reason for such change, effects (including potential side-effects) of such psychotropic medication, document that this explanation has been provided, and attempt to obtain the prisoner’s signature as evidence that the prisoner has received this information.
e. The County will create a Pharmacy and Therapeutics Committee, to assist in creating and implementing guidelines for the prescription of certain types of psychotropic medications. The Committee will meet at least quarterly.
f. The County will continue to develop and implement a policy and procedure regarding psychotropic medication non-compliance that meets the standard of care.
9. Review of Disciplinary Measures
a. The County will continue to develop and implement written policies regarding the use of disciplinary measures with regard to prisoners with serious mental illness or suspected mental illness. These policies will include written procedures to ensure review of proposed disciplinary measures to be taken against prisoners with identified or suspected mental illness by a Qualified Mental Health Professional (other than the treating clinician), and input by the QMHP regarding the extent to which the prisoner’s mental illness and/or the provision of mental health treatment should be a mitigating factor with respect to any discipline.
b. Supervisory custody staff who review incident reports and disciplinary reports will be trained on the policies and procedures regarding the referral of prisoners with suspected mental illness to the FMHS, and the policies regarding the use of disciplinary measures with regard to prisoners with mental illness or suspected mental illness.
c. The hearing officer will be trained on the policies regarding the use of disciplinary measures with regard to prisoners with mental illness or suspected mental illness and will document consideration of the QMHP’s recommendations, including treatment alternatives considered in the disciplinary process.
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d. Disciplinary measures taken against prisoners with identified or suspected mental illness will be reviewed by the Mental Health Review Committee, as set forth in Section 12, infra.
10. Use of Restraints on Prisoners with Mental Illness
a. The County will develop and implement written policies and procedures for the use of restraints on prisoners with serious mental illness or suspected mental illness.
b. These policies and procedures will conform with New York state law regarding use of the restraint chair, and will conform with APA guidelines regarding the use of other restraints for mental health purposes.
11. Use of Chemical Spray or Other Force on Prisoners with Mental Illness
a. Chemical spray will not be used on prisoners known to the corrections officer to have serious mental illness, or displaying symptoms of suspected mental illness, except in circumstances where the failure to use chemical spray could result in imminent physical injury or death.
b. Good faith efforts not to use chemical spray on prisoners described in (a) will be made and documented. All uses of chemical spray or other force on prisoners under this section will be reviewed by the Mental Health Review Committee.
12. Quality Management
a. The County agrees to expand the Quality Improvement Program instituted as part of the Stipulated Suicide Prevention Settlement to the entire mental health treatment program. This expansion includes the establishment of a Health Review Committee, which will include a Mental Health Review Sub-Committee (in addition to the Suicide Prevention Sub-Committee established under the Stipulated Suicide Prevention Settlement).
b. The Mental Health Review Sub-Committee will include, at minimum, the Director of Intensive Adult Mental Health Services, supervising or lead psychiatrist, senior level forensic mental health specialist, and a senior level custody representative, or the designees of the above individuals. The attending psychiatrist of the forensic inpatient program at ECMCC, or his designee will be encouraged to attend. When appropriate, representatives from nursing, pharmacy, and medical staff will also participate.
c. The Mental Health Review Sub-Committee will:
i. Provide oversight of the implementation of mental health policies and procedures as set forth by this Stipulated Order;
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ii. Review and analyze individual and aggregate mental health data and identify trends that present risk of harm, including referrals and admissions from general population or outpatient level of care to crisis level of care, lengths of stay in crisis and crisis-stabilization levels of care, and wait times for crisis-stabilization levels of care;
iii. Perform a periodic quality management review of the screening and assessment process and document corrective action or training for any staff performing screening and assessment contrary to the provisions of this Stipulated Order and generally accepted correctional health care standards. ;
iv. Perform a periodic quality management review of the referral process and document corrective action or training for any staff performing contrary to the provisions of this Stipulated Order and generally accepted correctional health care standards;
v. Perform a periodic quality management review of disciplinary measures and uses of force taken against prisoners with identified or suspected mental illness. A representative from custody will always be present during review in these areas;
vi. Review or direct review of the use of psychotropic medication to ensure appropriate and effective use of medications in the provision of mental health treatment;
vii. Amend or provide additional written policies and training as necessary to effectuate the provisions of this Stipulated Order;
viii. Direct participation of the mental health staff in periodic modified peer 
 review activities; 

ix. Prepare written annual performance assessments regarding the timely and appropriate access to mental health care by prisoners; and
x. Maintain a comprehensive record of all activity.
d. The appropriate frequency of the quality management activities listed above will be determined in consultation with the Technical Compliance Coordinator.
e. Minutes of the Mental Health Review Sub-Committee and all subcommittees thereof will be maintained, including a record of attendance, a summary of the matters discussed, a record of any decisions made, and identification of any documents reviewed or persons consulted. Minutes of the Mental Health Review Sub-Committee will be provided to the United States upon request.
f. Supervisors of forensic mental health counselors and psychiatrists will review mental health charts on a periodic basis to be determined by the TCC for the purpose of providing feedback to mental health staff.
g. The Director of Intensive Adult Mental Health Services and the supervising psychiatrist or their designees will attend meetings of the Health Review Committee.
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D. ENVIRONMENTAL HEALTH AND SAFETY
1. The County will continue its policies and procedures of providing prisoners who are indigent or are otherwise unable to procure such a supply with access to an adequate supply of underwear.
2. The County will continue to implement policies and procedures to inspect and disinfect mattresses prior to each assignment to a new inmate. Mattresses that are worn or torn such that repair and disinfection is not possible or practical will be replaced and not used for prisoner housing. Mattresses will also be inspected for contraband.
3. Each kitchen will continue to be inspected by the Erie County Department of Health Food Sanitation Program, on a basis consistent with the State Sanitation Code (New York Codes, Rules and Regulations Title 10, Part 14, Subpart 14-1), and the County will ensure that dishes and utensils, food preparation and storage areas, and vehicles and containers used to transport food are appropriately cleaned and sanitized.
IV. COMPLIANCE
A. The County agrees to provide copies of any documents provided to the TCC to the United States.
B. Within 120 days of the Effective Date of this Stipulated Order, Defendant will provide to the TCC and the United States all policies, procedures, and protocols that are contemplated by this Stipulated Order. The United States will provide any comments to the TCC within 90 days thereafter, and the TCC will review the policies, procedures, and protocols for approval. The TCC will approve all policies before they are implemented.
C. Defendant will revise and/or develop as necessary other written documents such as screening tools, logs, handbooks, manuals, and forms, to effectuate the provisions of this Stipulated Order, and will send all such materials to the TCC and the United States as they are promulgated. All policies will be reviewed at least annually. The United States will provide any comments to the TCC within 30 days thereafter, and the TCC will review the materials for approval. The TCC will approve all materials before they are implemented. Changes to policies and procedures will be submitted for review and approval on an ongoing basis in accordance with this process until this Order is terminated.
D. Upon approval from the TCC, Defendant will implement policies, procedures, and protocols within 14 days.
E. Within 90 days after the approval of all policies, procedures, and protocols contemplated by this Stipulated Order, Defendant will submit to the TCC for review and approval all proposed curricula for training contemplated by this Stipulated Order.
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F. Within 180 days of the TCC’s approval of Defendant’s training curricula set forth in Section V.C., supra, Defendant will provide this training to all staff required to be trained. Defendant will maintain records of each person’s attendance at training.
V. REPORTING REQUIREMENTS AND RIGHT OF ACCESS
A. Defendant will submit semiannual compliance reports to the United States and the TCC, the first of which will be filed within six (6) months of the Effective Date of this Stipulated Order. Thereafter, the semiannual reports will be filed 15 days after the termination of each six-month period until the Stipulated Order is terminated.
B. Each compliance report will describe the actions Defendant has taken during the reporting period to implement this Stipulated Order and will make specific reference to the Stipulated Order provisions being implemented. Such reports shall not be subject to disclosure nor admissible in any other proceeding other than a proceeding related to the enforcement of this Stipulated Order.
C. Defendant will promptly (within 48 hours) notify the TCC and the United States upon the death of any prisoner or any serious suicide attempt. Defendant will forward to the TCC and the United States any completed incident reports related to deaths, autopsies, and/or death summaries of prisoners as well as all final reports that involve prisoners, including, but not limited to PSD reports.
D. Defendant will maintain sufficient records to document that the provisions of this Stipulated Order are being properly implemented and will make good faith efforts to provide such records to the United States within five (5) business days of the United States’ request for inspection and copying (at Plaintiff’s cost). For example, Defendant will maintain all records or other documents that demonstrate that the County has taken such actions as described in its compliance reports (e.g., census summaries, policies, procedures, protocols, training materials, investigations, and incident reports).
E. The United States and its attorneys, consultants, and agents will have reasonable access to the Facilities, prisoners, staff, and documents once each six (6) month reporting period, or under exceptional circumstances as agreed by the parties or determined by the Court.
G. Within 30 days of receipt of reasonable written questions from the United States concerning Defendant’s implementation of this Stipulated Order, Defendant will provide the United States with written answers.
H. Any document provided to a TCC or the DOJ by the County (and any information contained therein) shall not be re-disclosed to any third party unless required by law or authorized by the Court. To the extent that the United States discloses any such document in response to a FOIA request, it will give the County Attorney reasonable written notice of such disclosure. The TCC and the DOJ shall protect confidential or personal privacy information, including but not limited to, protected health
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information, and shall adhere to all federal, state and local laws, rules or 
 regulations precluding the disclosure of such information. 

VI. TECHNICAL COMPLIANCE CONSULTANT
A. The Parties agree that two (2) Technical Compliance Consultants (“TCCs”) will serve under this Stipulated Order. The Parties agree that the TCC for the mental health provisions of this Stipulated Order is Jeffrey Metzner, MD, and that the TCC for the medical provisions of this Stipulated Order is Ronald Shansky, MD. The Parties agree that Dr. Metzner will also assume all responsibilities previously assigned to the Joint Compliance Officer under the Stipulated Suicide Prevention Settlement.
B. In the event that a TCC is unable to or unwilling to continue in such role, the parties must consent to a replacement. Absent such agreement, the replacement will be selected by the Honorable William M. Skretny, or a neutral to be agreed upon by the parties.
C. Neither Party, nor any employee or agent of either Party, will have any supervisory authority over the TCC’s activities, reports, findings, or recommendations. The reasonable cost for the TCC’s staff, fees, and expenses will be borne by Defendant in an amount to be mutually agreed upon by and between the TCCs and County. The selection of the TCC will be conducted solely pursuant to the procedures set forth in this Stipulated Order and will not be governed by any formal or legal procurement requirements. The TCC may be terminated only for good cause, unrelated to the TCC’s findings or recommendations, and only with prior notice to, and approval of, both Parties, or by Court order.
D. Immediately after the Effective Date of this Stipulated Order, the TCC may conduct onsite inspections to evaluate implementation of the provisions of this Stipulated Order. The TCC will have full and complete access to the Facilities, all Facility records, prisoner records, staff, and inmates upon notice to Defendant’s Stipulated Order Coordinator or his/her designee. Defendant will direct all employees to cooperate fully with the TCC in their evaluation activities. The United States will have the right to be present during TCC on-site inspections of the Facilities, and Defendant will also provide to the United States any documents provided to the TCC.
E. Subject to the County’s approval, the TCC may hire or consult with such additional qualified staff as necessary to fulfill the duties required by the Stipulated Order (“TCC Teams”). Approval will not be unreasonably withheld. Such qualified staff will have relevant experience and education or training in the field of corrections, mental health care, and/or medical care. The TCC is ultimately responsible for the findings regarding compliance. The TCC Teams will be subject to all of the same access rights and confidentiality limitations, listed below, as the TCC. The Parties reserve the right to object for good cause to members of the TCC Teams, at which point the Parties will meet and confer regarding the objections. If the Parties are unable to resolve the objections, each will propose an alternative candidate, and the TCC will choose from among those proposed candidates after consultation with the Parties.
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Case 1:09-cv-00849-WMS -JJM Document 225-1 Filed 08/18/11 Page 34 of 40
F. The TCC and his/her team members will be permitted to initiate and receive ex parte communications with all Parties.
G. Except as required or authorized by the terms of this Stipulated Order or the Parties acting together, the TCC will not: (1) make any public statements (at a conference or otherwise); or (2) issue findings with regard to any alleged act, error, or omission of Defendant or its agents, representatives or employees; or (3) disclose nonpublic information provided to the TCC pursuant to this Stipulated Order. Any press statement made by the TCC regarding his or her employment herein must first be approved in writing by all Parties. Unless such conflict is waived by the Parties, the TCC will not accept employment or provide consulting services that could present a conflict of interest with the TCC’s responsibilities under this Stipulated Order. The TCC is not a State/County or local agency or an agent thereof, and accordingly the records maintained by the TCC will not be deemed public records subject to public inspection. Neither the TCC nor any person or entity hired or otherwise retained by the TCC to assist in furthering any provision of this Stipulated Order will be liable for any claim, lawsuit, or demand arising out of the TCC’s performance pursuant to this Stipulated Order. This paragraph does not apply to any proceeding before a court related to performance of contracts or subcontracts for compliance evaluation of this Stipulated Order.
H. The TCCs shall not testify in any other proceeding with regard to any alleged act, error or omission of the County or any of its agents, representatives, or employees. Nor may the TCCs testify in any other proceeding regarding anything that the TCCs may have discovered as a result of his or her performance under this Stipulated Order. No report issued pursuant to this Stipulated Order shall be subject to disclosure nor admissible in any proceeding other than a proceeding related to the enforcement of this Stipulated Order.
I. The TCCs will file with the Court and provide the Parties with reports describing the steps taken by Defendant to implement this Stipulated Order and evaluate the extent to which Defendant has successfully implemented each substantive provision of the Stipulated Order.
1. The TCC will issue such reports every six (6) months, unless both Parties otherwise agree in writing.
2. The reports will be provided to the Parties in draft form at least two (2) weeks prior to final issuance. The Parties may provide written comments, if necessary, copying the opposing Party. These reports will be written with due regard for the privacy interests of individual inmates and staff.
3. In each report, the TCC will evaluate the status of compliance for each provision of the Stipulated Order using the following standards:
a. substantial compliance; b. partial compliance; and
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Case 1:09-cv-00849-WMS -JJM Document 225-1 Filed 08/18/11 Page 35 of 40
c. non-compliance.
4. In order to assess compliance, the TCC will: review a sufficient number of relevant documents to accurately assess current conditions; interview all relevant staff; and interview a sufficient number of inmates to accurately assess current conditions.
5. The TCC will be responsible for independently verifying representations from Defendant regarding progress toward compliance and for examining supporting documentation.
6. Each TCC report will describe the steps taken to analyze conditions and assess compliance, including documents reviewed and individuals interviewed, and the factual basis for each of the TCC’s findings.
J. The TCC will provide the County with a reasonable budget to be agreed upon by and between the County and TCC.
K. The TCC will provide Defendant with technical assistance as requested by Defendant. Technical assistance should be reasonable and should not interfere with the TCC’s ability to assess implementation.
L. Defendant and its agents agree that they will not retaliate against any person because that person has or may file a complaint, has or may provide information or assistance, or has or may participate in any other manner in an investigation or proceeding relating to this Stipulated Order.
M. Defendant will not assert physician/patient or psychotherapist/patient privileges with respect to the monitoring of this Stipulated Order by the United States and the TCC. The Parties and the TCC will treat all personally identifiable information obtained pursuant to this Stipulated Order as confidential.
VII. ENFORCEMENT
A. The United States District Court for the Western District of New York will retain jurisdiction over this matter for the purposes of enforcing this Stipulated Order.
B. During the period that this Stipulated Order is in force, prior to initiating any enforcement proceedings in Court for an alleged failure to fulfill an obligation under this Stipulated Order in Court, the aggrieved party will notify the other party in writing of the facts supporting the aggrieved party’s belief that the other party is not in compliance. The responding party will investigate the allegations and respond in writing within 30 days. If the aggrieved party is not satisfied with the other party’s response, the parties will conduct negotiations to resolve the issue(s). If the Parties are unable to resolve the issue(s) satisfactorily within 30 days of the other party’s written response, the aggrieved party may move the Court for any relief permitted by law or equity.
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Case 1:09-cv-00849-WMS -JJM Document 225-1 Filed 08/18/11 Page 36 of 40
VIII. CONSTRUCTION, IMPLEMENTATION, AND TERMINATION
A. Upon entry of this Stipulated Order by the Court, the parties will take all reasonable steps to begin and/or continue implementing the provisions of this Order.
B. This Stipulated Order shall not terminate for at least one year after the establishment of the reception center nor before Defendant has achieved substantial compliance with each provision of the Stipulated Order and has maintained substantial compliance with the Stipulated Order for a period of three consecutive six (6) month monitoring periods. With respect to the Protection From Harm and Environmental Health and Safety provisions of this Stipulated Order, this Order will terminate earlier if the parties agree that the Defendant has been in substantial compliance for three consecutive six (6) month self-reporting periods. The burden will be on Defendant to demonstrate that it has maintained substantial compliance with each of the provisions of the Stipulated Order. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance will not constitute substantial compliance.
C. Failure by any Party to enforce this entire Stipulated Order or any provision thereof with respect to any deadline or any other provision herein will not be construed as a waiver of its right to enforce other deadlines or provisions of this Stipulated Order.
D. If any unforeseen circumstance occurs that causes a failure to timely carry out any of the provisions of this Stipulated Order, Defendant will notify the United States in writing within 20 calendar days after Defendant becomes aware of the unforeseen circumstance and its impact on Defendant’s ability to perform under the Stipulated Order. The notice will describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. Defendant will implement all reasonable measures to avoid or minimize any such failure.
E. This Stipulated Order and any attachments or exhibits appended hereto will constitute the entire integrated Stipulated Order of the Parties. No prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein, in litigation, or in any other proceeding, with the exception of the Stipulated Settlement Agreement and Order concerning Suicide Prevention and Related Mental Health Issues (Dkt. 89-2).
F. The Stipulated Order will be applicable to, and binding upon, all Parties, their officers, agents, employees, assigns, and their successors in office. Defendant will ensure that all current and future relevant County employees, agents, assigns, and their successors in office, are trained on the terms of the Stipulated Order (to the extent necessary to carry out their job duties and responsibilities) and implement the terms of the Stipulated Order.
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Case 1:09-cv-00849-WMS -JJM Document 225-1 Filed 08/18/11 Page 37 of 40 G. Each Party will bear the cost of its fees and expenses incurred in connection with this
cause. H. If any provision of this Stipulated Order is declared invalid for any reason by a court of
competent jurisdiction, said finding will not affect the remaining provisions of this Stipulated Order.
IX. STIPULATION PURSUANT TO THE PRISON LITIGATION REFORM ACT, 18 U.S.C. § 3626
A. The Parties agree that this Stipulated Order of Dismissal complies in all respects with the requirements for prospective relief under the Prison Litigation Reform Act, 18 U.S.C. § 3626 (a).
B. The Parties stipulate and agree that all of the prospective relief in this Stipulated Order is narrowly drawn and extends no further than would be necessary to correct any violation of federal rights.
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Case 1:09-cv-00849-WMS -JJM Document 225-1 Filed 08/18/11 Page 38 of 40

FOR THE UNITED STATES:
S/William J. Hochul, Jr. WILLIAM J. HOCHUL, JR. United States Attorney Western District of New York

S/Thomas E. Perez THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

S/Mary E. Fleming MARY E. FLEMING Assistant United States Attorney Civil Chief, Western District of New York
DATED: August 17, 2011

S/Jonathan Smith JONATHAN SMITH Chief, Special Litigation Section Civil Rights Division
S/Laura L. Coon LAURA L. COON Special Counsel, Special Litigation Section Civil Rights Division
S/Zazy I. Lopez ZAZY I. LÓPEZ ALYSSA C. LAREAU MARLYSHA MYRTHIL LORI RIFKIN Trial Attorneys, Special Litigation Section Civil Rights Division

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Case 1:09-cv-00849-WMS -JJM Document 225-1 Filed 08/18/11 Page 39 of 40 FOR ERIE COUNTY: S/Jeremy A. Colby JEREMY A. COLBY Erie County Attorney DATED: 8/17/11
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Case 1:09-cv-00849-WMS -JJM Document 225-1 Filed 08/18/11 Page 40 of 40 SO ORDERED this _____ day of _______, 2011
________________________________________ THE HONORABLE WILLIAM M. SKRETNY UNITED STATES DISTRICT JUDGE Western District of New York
40 


 
 U.S. v. Erie County, N.Y., 763 F.3d 235 (2014)

763 F.3d 235 United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Plaintiff–Appellee, v.
ERIE COUNTY, NEW YORK, Defendant–Appellee, v.
New York Civil Liberties Union (N.Y.CLU), Intervenor–Appellant.
Docket No. 13–3653–cv. |
Argued: June 18, 2014. |
Decided: Aug. 18, 2014.
Synopsis Background: United States Department of Justice (DOJ) brought action against county pursuant to Civil Rights of Institutionalized Persons Act (CRIPA) alleging that county’s correctional facility deprived inmates of their constitutional right to provide safe and sanitary conditions of confinement. After parties entered into settlement agreement, the United States District Court for the Western District of New York, Skretny, Chief Judge, 2013 WL 4679070, granted civil rights organization’s motion to intervene, but denied its motion to unseal compliance reports prepared pursuant to settlement agreement. Organization appealed.
Holdings: The Court of Appeals, Calabresi, Circuit Judge, held that:
reports were “judicial documents,” and
public had First Amendment right to access to reports.
Reversed.
Attorneys and Law Firms
*236 Erin Aslan (Mark L. Gross, on the brief), for Jocelyn Samuels, Acting Assistant Attorney General, U.S. Department of Justice, Washington, D.C., for
1

Plaintiff–Appellee.
Michelle M. Parker, for Michael A. Siragusa, Erie County Attorney, Buffalo, NY, for Defendant–Appellee.
Alexis Karterton (Arthur Eisenberg, Jordan Wells, Christopher Dunn, on the brief), New York Civil Liberties Union, New York, NY, for Intervenor–Appellant.
Before: CALABRESI, PARKER, and LYNCH, Circuit Judges.
Opinion
CALABRESI, Circuit Judge:
This case is about public access to judicial documents.1 The documents in this case are compliance reports, filed with the district court pursuant to a settlement agreement between the United States and Erie County. The reports measure Erie County’s progress in improving the conditions of its prisons, which the United States alleged violated the Fourteenth and Eighth Amendments of the Constitution in the suit that led to the settlement agreement. If the reports show that Erie County is failing to fulfill the conditions outlined in the settlement’s stipulated order of dismissal, the United States is empowered to bring an enforcement proceeding, and the district court can provide “any relief permitted by law or equity.” Joint App’x at 219.
Today, we hold that the public’s fundamental right of access to judicial documents, guaranteed by the First Amendment, was wrongly denied when the compliance reports in this case were sealed. Accordingly, we reverse the district court’s decision, and order that the judicial documents be unsealed.
I.
Following a two-year investigation into the conditions of confinement at two Erie County correctional facilities, the United States brought an action in the Western District of New York against Erie County and several of its officials.2 The action, filed in September of 2009, alleged that the conditions at the Erie County facilities violated the federal constitutional rights of the inmates housed

U.S. v. Erie County, N.Y., 763 F.3d 235 (2014)
there by failing (a) to protect them from harm, (b) to provide adequate mental health care or medical care, and (c) to engage in adequate suicide prevention.
*237 In June of 2010, the District Court approved a partial settlement between the parties, which would resolve only the claims relating to suicide prevention. Pursuant to this agreement, the parties appointed a compliance officer, who would file with the Court reports measuring the extent to which Erie County was taking steps to prevent suicides.
The United States’ other claims against Erie County remained. When Erie County moved to dismiss these claims, the District Court denied the motion but ordered the United States to file an amended complaint. The United States did so, alleging Eighth and Fourteenth Amendment violations for, inter alia, medical indifference, substandard mental health and medical care, and environmental health and safety failings.
In August of 2011, the United States and Erie County proposed a settlement agreement to resolve these remaining claims. Under the agreement, the claims against the individual defendant-officials were dismissed, and while Erie County did not admit wrongdoing, it did agree to implement practices and procedures to remediate what the United States had contended were unconstitutional conditions of confinement.
To ensure that the terms of the order were fulfilled, the settlement provided for the appointment of two compliance consultants. One would monitor mental health issues, and the other would oversee medical issues.3 Every six months, the compliance consultants were to produce written reports—which are the focus of this litigation—outlining Erie County’s progress, or lack thereof, in remedying the issues that led to the suit and settlement. The reports were first to be given to the parties, who could provide comment, and were then to be filed with the District Court. The compliance consultants would report to the Court whether Erie County was in substantial compliance, partial compliance, or non-compliance with the settlement agreement.
In an order entered later that August, the District Court agreed that the parties’ proposed stipulated settlement order satisfied the requirements for prospective relief under the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A), inasmuch as it was narrowly drawn and employed the least intrusive means to correct the alleged violations of the federal rights at issue. The Court therefore approved the stipulated order dismissing the government’s suit, but it also retained jurisdiction over
2

the matter until the terms of the settlement were fulfilled.
Importantly, the settlement agreement allows either party to move to reopen the case at any time “should issues requiring [the] Court’s intervention arise.” Under such circumstances, the compliance reports would form the record for any appropriate enforcement action before the District Court. Should, for example, Erie County fail to abide by the settlement, the agreement provides that the Court is fully empowered to order “any relief permitted by law or equity.” Significantly, the agreement does not purport to preclude the District Court from providing such relief sua sponte if, on the basis of the reports, it finds non-compliance.
After the first compliance report was produced, Erie County moved that the order be filed under seal. The United States did not oppose the motion, and the District *238 Court granted it. The Court also permitted future sealing of the reports.
In June of 2012, the New York Civil Liberties Union (“NYCLU”) moved to intervene and to unseal the compliance reports.4 The District Court granted NYCLU’s motion to intervene, but denied its motion to unseal the reports. United States v. Erie County, N.Y., No. 09–cv–849S, 2013 WL 4679070 (W.D.N.Y. Aug. 30, 2013). In so deciding, the Court found that the compliance reports qualified as judicial documents, since they were filed with the Court in a matter over which the Court retained jurisdiction and since they were relevant to the Court’s exercise of judicial authority. Id. at *8–11. It then considered whether, under the First Amendment or the common law, the presumption of public access that applies to such judicial documents would mandate unsealing, and concluded that it would not. Id. at *12, *14.
The Court first found that the reports, though judicial documents, were not within the subset of such documents entitled to a First Amendment right of access. The Court construed the compliance reports to be akin to settlement negotiation documents, and believing that they had little bearing on its own exercise of Article III power, it held that they were not the types of judicial documents that the First Amendment would require be made available to the public. Id. at *11–12.
The Court also found that while the common law presumption of access was applicable to the reports, it was a weak presumption. Id. at *13–14. Here, too, the reports were construed by the Court to be similar to settlement negotiation documents and, as such, subject to the need for the kind of frank discussion among the

U.S. v. Erie County, N.Y., 763 F.3d 235 (2014)
parties that might be diluted upon disclosure. On that basis, the Court determined that the common law presumption of access was overcome. Id.
Accordingly, the District Court denied NYCLU’s motion to unseal the compliance reports and declined to vacate its own standing order regarding the sealing of future reports.5 Id. at *15. NYCLU appeals.6
We review the District Court’s decision for abuse of discretion, although, since the First Amendment is implicated, we give the documents and proceedings “close appellate scrutiny.” Newsday LLC v. County of Nassau, 730 F.3d 156, 163 (2d Cir.2013). Indeed, in such cases, “we have traditionally undertaken an independent review of sealed documents, despite the fact that such a review may raise factual rather than legal issues.” Id.
II.
The notion that the public should have access to the proceedings and documents *239 of courts is integral to our system of government. To ensure that ours is indeed a government of the people, by the people, and for the people, it is essential that the people themselves have the ability to learn of, monitor, and respond to the actions of their representatives and their representative institutions. This principle, as it applies to courts, has a long history. Indeed, the common law right of public access to judicial documents is said to predate even the Constitution itself. See United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995) (“Amodeo I ”).
As the common law right of public access has developed in this Circuit’s doctrine, our approach to determining whether a document is a judicial document, and therefore one presumed to be publicly accessible, has been to emphasize the role of the document in the judicial process. Thus, in order to decide whether a document is a judicial document protected by the common law right of access, this Court considers whether it is “relevant to the performance of the judicial function and useful in the judicial process.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir.2006) (internal quotation marks omitted).
If we find that a document is a judicial document and therefore that at least a common law presumption of access applies, we must “determine the weight” of the
3

presumption of access. Id. The weight to be given to the presumption of access is “governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir.1995) (“Amodeo II ”). “Finally, after determining the weight of the presumption of access, the court must balance competing considerations against [disclosure].” Lugosch, 435 F.3d at 120 (internal quotation marks omitted). Only when competing interests outweigh the presumption may access be denied. Id. at 119–20.
But, and in a sense more tellingly, our Constitution, and specifically the First Amendment to the Constitution, also protects the public’s right to have access to judicial documents. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir.2004). Indeed, the First Amendment protection has been understood to be stronger than its common law ancestor and counterpart. Id. To determine whether this First Amendment right attaches in circumstances such as the one before us, we look, first, to whether “experience and logic” support making the document available to the public. Lugosch, 435 F.3d at 120. That is, we consider (a) whether the documents “have historically been open to the press and general public” (experience) and (b) whether “public access plays a significant positive role in the functioning of the particular process in question” (logic). Id. (internal quotation marks omitted).
Once a First Amendment right of access to judicial documents is found, the documents “may be sealed [only] if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. (internal quotation marks omitted). And, “[b]road and general findings by the trial court ... are not sufficient to justify closure.” Id. (internal quotation marks omitted).
III.
Under our precedents, therefore, before determining whether the common law or First Amendment requires that the compliance reports be made accessible to the public, we must consider whether they *240 indeed are judicial documents. See Amodeo I, 44 F.3d at 145 (common law); Hartford Courant, 380 F.3d at 91–92 (First Amendment). We hold, as did the District Court,

U.S. v. Erie County, N.Y., 763 F.3d 235 (2014)
that the reports are such documents.
The focus of our analysis is on whether the compliance reports are “relevant to the performance of the judicial function and useful in the judicial process.” Lugosch, 435 F.3d at 119 (quoting Amodeo I, 44 F.3d at 145). The conclusion that the reports fulfill this standard flows easily from our holding in Amodeo I, 44 F.3d at 145–46. There, as here, the reports were filed with the District Court by an expert whose duties were to oversee compliance. Id. While the reports in Amodeo I were prepared by a court-appointed officer pursuant to a consent decree, and the compliance consultants here were instead chosen by the parties and appointed pursuant to a settlement agreement, this distinction is of little importance. What matters is that the reports are filed with the District Court and become relevant to its judicial activities. That is, as in Amodeo I, the compliance reports would be considered by the Court for the purpose of ruling on an enforcement motion brought by either of the parties. Id. at 146.
Importantly, moreover, the compliance reports could form the basis for the District Court reinstating the civil proceedings sua sponte if the Court believes that the substance of the stipulated order of dismissal is not being fulfilled. The District Court “retains the power to enforce the Stipulated Order of Dismissal.” Joint App’x at 226. As a result, while the Court may be moved by one of the parties to enforce the terms of the order, its power to ensure the fulfillment of the terms of the stipulated order of dismissal is not contingent on such motions by the parties. See, e.g., Geller v. Branic Int’l Realty Corp., 212 F.3d 734, 737 (2d Cir.2000) (holding that the district court has a “duty to enforce the stipulation that it has approved”); Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir.1974) (per curiam) (holding that a stipulated order of settlement “was a consent to the exercise of the court’s power to compel compliance”); Limbright v. Hofmeister, 566 F.3d 672, 674–75 (6th Cir.2009) (“A district court may rely on any basis of jurisdiction to summarily enforce a settlement agreement that produced the dismissal of an earlier federal suit.”); Blue Cross & Blue Shield Ass’n v. Am. Express Co., 467 F.3d 634, 638 (7th Cir.2006) (“As long as [28 U.S.C.] § 1332 supplies authority to decide, the court may act without a fresh complaint.”); cf. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (noting that if the district court “ ‘retain[ed] jurisdiction’ over the settlement agreement” then “a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist”).
4

The fact that the District Court has not yet acted sua sponte or adjudicated an enforcement action brought by the parties does not alter our analysis. The presumption of access to judicial documents is “based on the need for federal courts ... to have a measure of accountability and for the public to have confidence in the administration of justice.” Amodeo II, 71 F.3d at 1048. In light of the District Court’s inherent “supervisory power over its own records and files,” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), even the District Court’s inaction is subject to public accountability. The public’s ability to scrutinize such judicial decision-making helps assure its confidence in the orderly administration of justice. If the reports show progress in compliance, the public *241 can be confident that the judge’s failure to intervene is appropriate; if the reports show worsening conditions, legitimate questions could be raised about the court’s inaction.
In light of the role of the compliance reports in any sua sponte action by the District Court, as well as in any enforcement action brought by the parties, the compliance reports are manifestly relevant to the District Court’s performance of its judicial function, and therefore are judicial documents.
IV.
Having determined that the reports are judicial documents and therefore that at least a common law presumption of access applies to them, we would ordinarily continue with the common law analysis and determine the weight of the presumption and measure it against competing considerations. See Lugosch, 435 F.3d at 119–20. This case, however, does not require such an approach. Since we find that the compliance reports are subject to a First Amendment right of access, which is stronger and can only be overcome under more stringent circumstances than the common law presumption, see infra Part VI, we need not, and do not, engage in such a common law analysis.
V.
In this case, a trio of government bodies—Erie County,

U.S. v. Erie County, N.Y., 763 F.3d 235 (2014)
the Department of Justice, and the District Court for the Western District of New York—are involved in effectuating a settlement agreement to improve conditions at two public correctional institutions. Erie County wishes to keep the reports which measure its progress, or regress, under seal and, therefore, out of public view. Yet every aspect of this litigation is public. The United States Department of Justice is a public agency, which brought a claim before a public court, the District Court for the Western District of New York, arguing that a public government, Erie County, failed to meet constitutional requirements in operating two public institutions, the Erie County correctional facilities. And, critically, although a settlement is now in place, the public court retains jurisdiction over the dispute, and indeed may be moved, or move itself, to reinstitute civil proceedings. In a case where every aspect and angle is public, Erie County seeks, nonetheless, to keep the compliance reports under the darkness of a seal. But the First Amendment does not countenance Erie County’s position. Neither experience nor logic supports sealing the documents, and the District Court erred in concluding otherwise.
A.
In considering “experience,” we focus on whether the documents are ones that “have historically been open to the press and general public.” Hartford Courant, 380 F.3d at 92 (internal quotation marks omitted). First, as a baseline matter, we note that the notion of public access to judicial documents is a capacious one: the courts of this country have long recognized a “general right to inspect and copy public records and documents, including judicial records and documents” in part because the public has an interest in “keep[ing] a watchful eye on the workings of public agencies.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597–98, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978).
Second, NYCLU points to several instances where reports like the ones at hand have been accessible to the public. It cites ongoing cases in district courts across the country where the reports of monitors appointed pursuant to consent *242 decrees and settlement agreements in institutional-change litigation are publicly available. See, e.g., United States v. State of New York, No. 10–cv–858 (N.D.N.Y. filed July 14, 2010) (settlement agreement appointing monitors); United States v. City of New York, No. 10–cv–0060 (E.D.N.Y. filed Jan. 7, 2010) (consent judgment appointing monitors); United States v. Cook
5

County, No. 10–cv–029460 (N.D. Ill. filed Dec. 3, 2013) (settlement agreement appointing monitors); Harper v. Fulton County, No. 04–cv1416 (N.D.Ga. filed Oct. 21, 2013) (consent order approving settlement and appointing monitors). NYCLU also notes that the Supreme Court, in Brown v. Plata, ––– U.S. ––––, 131 S.Ct. 1910, 1924–25, 179 L.Ed.2d 969 (2011), a case about the constitutional rights of prisoners, relied on publicly available reports regarding California’s compliance with consent decrees.
In light of these precedents making available the reports of monitors in institutional-change litigation and settlements, and especially those involving settlement agreements such as the one here, it is clear to us that “experience” supports unsealing the reports in this case.7
B.
We also find that logic bears out this experience, since “public access plays a significant positive role in the functioning of the particular process in question.” Lugosch, 435 F.3d at 120 (internal quotation marks omitted). The issues involved are manifestly ones of public concern and therefore ones which the public has an interest in overseeing. As the Supreme Court succinctly put it, the “conditions in this Nation’s prisons are a matter that is both newsworthy and of great importance.” Pell v. Procunier, 417 U.S. 817, 830 n. 7, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Moreover, the public’s interest is one that directly relates to the “functioning of governmental processes.” Press–Enter. Co. v. Super. Ct. of California, 478 U.S. 1, 9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). Access to the compliance reports enables the public to understand, monitor, and respond to the progress made towards altering what the Department of Justice, as enforcer of the nation’s laws, alleged were unconstitutional conditions in Erie County correctional facilities. Access also permits the public to evaluate the Court’s role in overseeing that progress. In short, access enables the public to decide whether the Court and the parties—all governmental entities—are doing their jobs in fulfilling the terms of the settlement agreement.
In this sense, allowing public access to the documents that inform judicial decisions *243 reminds judges, in the exercise of their power, of the sovereign body which authorizes that power. See, e.g., Amodeo II, 71 F.3d at 1048 (“Monitoring both provides judges with critical views of their work and deters arbitrary judicial

U.S. v. Erie County, N.Y., 763 F.3d 235 (2014)
behavior.”). These principles apply directly to this case. The United States District Court, and indeed the United States Department of Justice, will read the compliance reports and decide whether or not the terms of the stipulated order are being fulfilled, and if not, what action to take. As these public bodies exercise discretion and authority, it is important that they know that the public has access to the documents which form the basis of their decisions.
We therefore hold, in light (i) of the practice of providing access to reports such as these and (ii) of the logic of democratic monitoring of judicial processes, that the First Amendment right of access applies to the compliance reports at issue in this case.
VI.
Recognizing that the First Amendment applies and protects the public’s right of access does not end the matter, however. Our precedents hold that even this right can be overcome by “specific, on-the-record findings that higher values necessitate a narrowly tailored sealing.” Lugosch, 435 F.3d at 126.
The District Court did not find that a First Amendment right attached and hence did not consider whether it could be overcome in this instance. Accordingly, we would ordinarily remand this question to that Court to engage in whatever additional fact-finding was needed for its resolution. See id., 435 F.3d at 126–27. And this is what the United States, in its brief, recommends that we do. See United States of America Br. at 22.
At oral argument, however, Erie County conceded that it would have nothing to offer before the District Court that it had not already proffered. In light of this concession, we take it as given that we have Erie County’s full array of facts and arguments in favor of a narrowly tailored sealing of the compliance reports. We are therefore able to consider the issue directly. Doing so, we conclude that the County’s arguments, and the facts upon which they are premised, cannot justify even a narrowly tailored sealing.
In attempting to keep the reports sealed despite their First
Footnotes
6

Amendment protection, the County posits a supervening need for frank, and hence confidential, discussions among the parties. In doing so, it analogizes this case to ones involving settlement negotiations. But that argument ignores the crucial fact that, in the case before us, a settlement has already been reached. As the Department of Justice points out, unlike the documents sought in United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 854 (2d Cir.1998)—which included draft settlement agreements and attorney work product produced in preparation for settlement—the compliance reports are not documents made in preparation for settlement. In this case, settlement has long since been achieved. And many of the privacy concerns that inhere in pre-settlement negotiations simply do not apply. Thus, to mention just two, there is here no issue of attorney-client confidentiality or of divulging strategy.
Significantly, Erie County, in basing its sealing argument only on the aforementioned settlement contention, does not invoke “privacy interests,” In re New York Times Co., 828 F.2d 110, 116 (2d Cir.1987), or safety concerns, see Lugosch, 435 F.3d at 120, or for that matter, any other value *244 that plausibly might be construed as being “higher” than the First Amendment values at stake.
On the basis of this record, we therefore find that the First Amendment right of access has not been overcome, and recognizing the “importance of immediate access where a right to access is found,” id. at 126, we reverse the District Court’s decision and order that the reports be unsealed forthwith.8
CONCLUSION
We REVERSE the District Court’s decision to keep the compliance reports under seal and VACATE its standing order that permitted future reports to be sealed.
All Citations
763 F.3d 235

U.S. v. Erie County, N.Y., 763 F.3d 235 (2014)

1

Whether an equivalent right exists in other cases involving other government institutions is not before us, and we therefore

express no view on that subject.

2

The action was brought pursuant to the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. § 1997a et seq.

3

Since the suicide prevention settlement was incorporated in this agreement, the above referenced compliance consultants would

also replace the compliance officer selected under the initial suicide prevention settlement.

4

NYCLU clarifies here that in intervening, it only seeks to unseal the compliance reports, and not Erie County’s own compliance

records. See Intervenor–Appellant’s Br. at 15 n. 2.

5

Although the District Court’s decision on NYCLU’s motion to unseal the reports and vacate the standing order regarding the

future sealing of reports is an interlocutory order, we have jurisdiction to review it pursuant to the collateral order doctrine. See

generally United States v. Graham, 257 F.3d 143, 147 (2d Cir.2001).

6

The United States has also filed a brief urging us to vacate the District Court’s order. Erie County argues that, while we may

consider NYCLU’s argument, the United States’ brief is not properly before us since the United States did not file a notice of

appeal. A notice of appeal, however, only needed to be filed by NYCLU, since it was the only party against whom the district court

ruled. See Fed. R.App. P. 4(a). We therefore consider the United States’ arguments.

7

Erie County argues that, since NYCLU did not raise this “argument” below, we may not consider the fact that an early report

pursuant to the suicide prevention agreement was made available to the public. While the fact that this report was made publicly

available is not needed for our holding, and hence is not listed among the “experience” examples in the text, we pause to note

that Erie County misunderstands our law in this regard. We may, and often do, decline to consider new arguments on appeal.

See, e.g., United States v. Lauersen, 648 F.3d 115, 115 (2d Cir.2011) (per curiam) (declining “to address the arguments” raised for

the first time on appeal). But NYCLU’s argument—that experience supports unsealing the reports—is not new on appeal; it was

powerfully made below. On appeal, NYCLU offers an additional fact in support of that argument: that one such report was made

available pursuant to the previous agreement. This fact, readily available in the record below, is one that we could properly

consider if we wished.

Similarly, NYCLU’s reference to other cases where the reports of monitors have made been available to the public is not, as

Erie County again argues, a new argument made on appeal. Instead, it is an appropriate citation to authority, which is germane

to, and part of, NYCLU’s First Amendment argument, made both here and below.

8

In so ordering, we do not, of course, exclude the possibility that the District Court may determine that some redactions may be

necessary upon unsealing. See Amodeo I, 44 F.3d at 147. At argument, NYCLU conceded as much. For example, redacting medical

information identifiable to particular prisoners would be especially appropriate.

End of Document

7

 
 Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 1 of 13
First Monitoring Report US Department of Justice v. Erie County
This report reviews the status of medical program conditions at the time of the first monitoring visit, which took place November 1-3, 2011.
The format for this report will follow the provisions of the Agreement within the medical care section of the Agreement. Each area will be described in terms of compliance status, findings and recommendations. Because this is the first monitoring report and therefore the County will have had no experience in appreciating the methodology utilized, this Monitor views this report as a baseline description of the status. What will become important is the extent to which each subsequent monitoring visit is able to demonstrate improvements in the areas identified as needing improvement. Compliance status will be assessed as: substantial compliance, meaning the program has achieved the intent of the agreement; partial compliance, which means the program has accomplished one or more aspects of the intent but not the full intent, noncompliance, meaning that we have not been able to observe any progress in the delineated area or non-ratable meaning insufficient data was available to assess compliance. We would expect that the recommendations would assist the jurisdiction in identifying major areas of focus. We would also expect that over time the number of areas being noncompliant will become substantially reduced and the number of areas becoming substantially compliant will be significantly increased. We remain available for consultative input during this entire process and would encourage the jurisdiction, where indicated, to avail themselves of this resource. We are also allowing the jurisdiction to submit any additional policies, procedures or other relevant documents to the Monitor before the end of January 2012. This data will be used to craft the final version of this first monitoring report, to be submitted to the court by the end of February 2012.
B. Medical Care
1. Policies and Procedures
Compliance Status: Partial compliance.
Findings I have reviewed over 40 policies and procedures along with associated forms and although there are modifications that are needed, it is very clear that the County has invested a substantial amount of work into developing an organized and coherent policy and procedure set to guide their staff.
Recommendation

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 2 of 13
1. Continue to work on the policies and procedures and use my letter as a basis for many of the changes.
2. Medical Autonomy
Compliance Status: Substantial compliance.
Findings We came across no situations in which there was custody or administrative intervention overriding a clinical decision. In our discussion with the Erie County stakeholders, it seemed clear that the County was committed to the philosophy of medical autonomy. We have reviewed policy 01.01.00 and it is consistent with the intent of paragraph 2.
Recommendation: None.
3. Privacy
Compliance Status: Noncompliance.
Findings Not only were we unable to observe all the clinical areas where assessments were performed, but also there is no discreet policy that addresses privacy issues, especially in clinical areas. Although there is an effort to insure confidentiality is afforded during clinical assessments, we were not able to thoroughly review the matter of patient refusals of medication. In fact, during the observed medication rounds, if people on medications did not show up for their medications it was treated as a refusal without any verbal or written confirmation.
B. We were not able during this visit to observe the variety of areas where clinical assessments occur. Thus, we could not confirm that the County was compliant in insuring confidentiality during assessments.
C. We also were not able to observe that appropriate documented training on how to maintain patient confidentiality is provided for all those non-healthcare staff who facilitate healthcare through performing the interpreter role.
D. We did observe that healthcare records are maintained separate from correctional records and are transported in a secure fashion.
Recommendations
2

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1. Modify the medication administration procedure so that patients are forced to either refuse or accept medication. Not being present is an unacceptable alternative.
2. Be prepared to demonstrate training regarding confidentiality given to custody staff or others who perform the interpreter role.
3. Develop a policy that addresses privacy, in particular for all of the clinical areas.
4. Training of Custody Staff
Compliance Status: Substantial compliance.
Findings The County was able to demonstrate documentation of training provided to custody on responding to medical urgencies and emergencies as well as supervision of inmates with serious medical needs.
Recommendation 1. Continue to maintain records of appropriate training provided to officers with regard to these healthcare areas.
5. Management of Health Records
Compliance Status: Partial compliance.
Findings Although the County is attempting to insure that all healthcare data are kept in a single file, the current file lacks both medication lists as well as updated problem lists, thus inhibiting the efficient use of these files. We are aware that the County plans to transition to an electronic record and this may ultimately resolve many of these issues.
A. We reviewed policies 03.00.00 through 03.03.00. These policies are consistent with the intent of the Agreement.
B. We did identify records in which documentation was missing greater than 72 hours after its creation. This suggests that there is a problem with timeliness of filing and thus ultimately completeness of medical records.
C. We were not able to verify that health record documentation is sent offsite timely and that upon return necessary information is available in a timely manner. On the other hand, we did identify that in most instances records were transported from ECHC to ECCF and vice versa in a timely manner.
3

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D. We were unable to verify that the lead physician is being notified of transfers from the County’s custody staff to another facility and therefore that critical health information is prepared and sent with the prisoner at the time of transfer.
E. We were informed that there currently is not a procedure to provide prisoners with written instructions including a fax number where future medical providers can request a summary which includes the prisoner’s major health problems and current medications and dosages.
Recommendations 1. Implement a procedure to insure that both an updated problem list and a medication list is available in each record which includes both medical, mental health and dental documentation. 2. Implement a timely process for medical record filing, preferably faster than 72 hours, so that critical information is virtually always available at the time that services need to be provided. 3. Implement a procedure that insures that as soon as the patient returns from the offsite service, efforts are made to retrieve the documentation of the service, have that documentation reviewed by a clinician and acted upon, including follow up with the primary care clinician. 4. Insure that custody notifies medical leadership timely so that appropriate documents can be prepared for transfer when patients are sent or transferred to offsite facilities. 5. Implement a policy and procedure to provide prisoners with written instructions including a fax number where future medical providers can request a summary of the prisoner’s medical treatment.
6. Medication Administration
Compliance Status: Partial compliance.
Findings We have reviewed policies 0.6.03.00 through 0.6.04.00. We did review the medication administration process on Echo Northeast and Southwest as well as letter B linear. From our observation, medical staff who administer medications were all nurses, either licensed practical nurses or registered nurses, who were working within the scope of their license. We were unable to verify that greater than 90% of medications were received by the patient within 48 hours of the order. Due to the underestimation of time required to complete the monitoring review, we were not able to perform a study which would have allowed us to reach a conclusion regarding the timeliness of receipt of medications. This was true both for patients who had been in the
4

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 5 of 13
facility as well as new arrivals. We did observe that medical staff who administer the medications document on the medication administration record the date and time medication is administered. However, there were two major problems with the medication administration process. First, patients who did not show up were treated as refusals, which may not always be the case. There must be a more concerted effort to identify the reasons for patients not receiving their medications. In addition, although there was good coordination with custody staff during the medication administration process, in general there was no mouth check after the medication was ingested.
We were unable to review the process to provide medications during transit nor were we able to review the process for providing access to medications upon release for those in house 30 days.
Recommendations 1. Perform a study looking at the timeliness between medication order and patient receipt of medication. 2. Perform a study looking at timeliness of receipt of medications identified as necessary during the intake process. 3. Implement a procedure so that medication refusals are in fact documented on the basis of patient description as opposed to patients not showing up. 4. Implement a procedure so that ingestion of the medication is witnessed after mouth inspection by the correctional officer. 5. Perform a study of patients being transferred to other facilities and look at whether medications are transferred with them. 6. Perform a study looking at patients who have been in the facility 30 days and are released and whether or not they receive a seven-day supply of medications. Both of these studies will require excellent cooperation with custody.
7. Access to Care
Compliance Status: Partial compliance.
Findings We reviewed policies 0.8.00.00 through 0.8.09.00. We do know that the process includes slips being available seven days per week and picked up daily by medical staff. We are also aware that the process is to include an immediate screening by an RN or advanced level practitioner within 24 hours of collection. Patients with symptoms are to be seen in no more than 48 hours or sooner when indicated. In a brief review of the sick call process we found some instances of patients being seen timely but others in which we could not locate a documented note within the medical record.
5

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 6 of 13
Recommendations 1. Conduct a study in which the timeliness of both initial triage and face-to-face visit are tracked by housing area to insure that each housing area is in compliance with this agreement. 2. Conduct a study reviewing the nursing professional performance with regard to nursing assessments for sick call symptoms. This study should be part of an ongoing process of professional performance enhancement such that nursing skills are continually refurbished.
8. Emergency Care
Compliance Status: Partial compliance.
Findings We reviewed policy 11.01.00. We had several recommendations which are included in the attached letter. In the letter is a restatement of the need to create both an emergency medical care policy and an urgent care policy. We are strongly recommending that each be developed. Emergency care most commonly refers to man down situations and may result in offsite referrals. We did review several records in which emergency care services were provided. That documentation is consistent with at least a partial compliance status.
Recommendations 1. A logbook should be maintained which has the date, the time of the emergency, the patient name, the presenting complaint and the disposition. 2. Similarly for urgent matters such as a patient telling an officer they have developed a severe abdominal pain, a similar log book maintained in the nursing station should track urgent complaints, most of which will not result in an offsite referral but must result in a nursing assessment. The same fields should, however, be tracked. On a regular basis, at least once per month, a study should be done looking at selected emergency send offs as well as urgent symptoms treated onsite. In both studies, appropriateness and timeliness of response is critical as well as follow up after the fact.
9. Follow Up Care
Compliance Status: Partial compliance.
Findings We reviewed policy 07.01.00, which addresses offsite diagnostic and treatment services, including their follow up, after our site visit. Without the policy and procedures at the time of the
6

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 7 of 13
visit, we did not look carefully at patients who underwent offsite referrals. However, what is important is that the sendoff is performed timely and the follow up on return begins with an assessment when the patient returns to the facility and is completed when the necessary paperwork is available and the patient is seen in follow up by the primary care clinician who documents a discussion with the patient regarding findings and plan. This is true for emergency department visits offsite, hospitalizations offsite, outpatient specialty procedures as well as consultations. The same elements must be in place for all of these services to be adequately followed up.
Recommendation 1. Implement a policy and procedure conjointly with custody that insures that when patients return from offsite services there is a medical person who reviews the material and if critical information is unavailable makes sure that the offsite documents are available and where indicated, acted upon. In addition, a follow up visit with the primary care clinician must take place.
10. Chronic Disease
Compliance Status: Partial compliance.
Findings We have reviewed the chronic disease policy 08.03.00. We know that patients are being followed regularly for certain chronic diseases, but we did not have an opportunity to review a significant sample of records. We strongly encourage the Medical Director to selectively review records of those patients who are the most poorly controlled or the sickest. This review should occur on a regular, monthly basis so that feedback can be provided to the primary care clinicians that may help improve their responses.
Recommendations 1. Add a general medicine clinic for less common chronic diseases so that diseases such as hypothyroidism and rheumatoid arthritis may be followed in such a clinic. 2. Begin reviewing a sample of records, if possible, of patients who are least well controlled. If there is any question on how to do this we would be happy to help. 3. The program must insure that all patients with chronic diseases have these diseases listed on the problem list in the medical record.
11. Dental Care
Compliance Status: Partial compliance.
7

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 8 of 13
Findings We have reviewed policy 08.06.00 on dental care. For purposes of this Agreement, our concerns focus on the following areas:
1. Treatment decisions are based on clinical factors only and not overarching policies. 2. There is a system in place to insure that patients are able to receive timely temporary
relief from pain through accessing a nurse who uses a protocol before being assessed by the dentist. 3. The dental program must have a viable infection control component, including sterilization, monitoring of biologicals, etc.
Recommendation 1. Begin also monitoring the ratio of restorations to extractions as part of your quality improvement program.
12. Care for Pregnant Prisoners
Compliance Status: Partial compliance.
Findings We have reviewed policy 08.04.00. We do know that a County obstetric service is made available. Our expectation is that practice is consistent with the American College of Obstetrics and Gynecology guidelines, including prenatal monitoring, testing, etc. Offsite documented encounters must be available in the ECHC medical record.
Recommendation 1. Insure that documented offsite obstetric encounters are part of the Erie County medical program’s medical record.
13. Dietary Allowances and Food Service
Compliance Status: Partial compliance.
Findings We have reviewed policy 06.09.00 and this policy is generally acceptable. We did not have a chance to review this area in any detail. However, we believe the medical care section is only responsible for insuring medical diets’ appropriateness and availability. Religious diets are best reviewed by another area.
Recommendations
8

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 9 of 13
1. Perform a study of the timeliness of the availability of medical diets, from the time of the medical order to the time the patient receives the diet.
14. Health Screening of Food Service Workers
Compliance Status: Partial compliance.
Findings We have reviewed policy 02.11.00 and find it to be acceptable. All food service experts now believe that the best way to prevent food borne illnesses is a daily screening by the food service supervisor looking for open lesions on hands and arms and a history of any recent diarrhea. This screening should be done by dietary supervisors and not by healthcare staff. Healthcare staff may in fact clear people to work in the area in the sense that they are physically and mentally capable. Beyond that the responsibility rests with food service supervisors.
Recommendation: None.
15. Treatment and Management of Communicable Diseases
Compliance Status: Partial compliance.
Findings This is a County program managed by the Department of Health. We have reviewed policies 08.08.00 through policy 08.09.00. These policies are comprehensive. Implementation should be monitored as an aspect of your quality improvement program.
Recommendation 1. Begin monitoring appropriate elements of the communicable disease program as part of your quality improvement program.
16. Sexual Abuse
Compliance Status: Partial compliance.
Findings The County is obligated to report and protect individuals who are at risk for sexual abuse. We have reviewed policy 02.02.00 and it appears to address MOA issues.
Recommendation 1. Develop a log so that allegations of sexual abuse are trackable and records can be reviewed on the basis of log data. 9

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 10 of 13
2. Send any studies, meeting minutes or other documentation that is consistent with a systematic effort to identify problems and mitigate them.
17. Quality Management
Compliance Status: Partial compliance.
Findings We have reviewed policies 12.00.00 through 12.02.00. These policies, in general, contain the elements one would expect to see in a correctional quality improvement program. If the County chooses, this Monitor would be happy to do a training program for the staff with regard to a corrections quality management committee program. Because this is a baseline visit, we certainly have not anticipated that this area would have gone beyond noncompliance.
Recommendation 1. Begin implementation of your quality improvement program.
18. Review of Clinical Care by Responsible Physician
Compliance Status: Partial compliance.
Findings We have reviewed the policy on peer review, 12.02.00. It provides for a systematic review of clinical work by the supervising physician. We are unaware of a systematic review by the responsible physician. We will work closely with the responsible physician so that he will develop an efficient methodology to sample records in order to help improve the care.
Recommendation 1. Develop a systematic process for review of clinical care, focusing on care of those whose disease process is least well controlled.
Summary
In many areas, we have now reviewed policies which have been drafted and approved. In an accompanying letter we are going to suggest some changes. However, we wish to commend the staff of the Erie County Department of Health for developing this substantial number of policies and procedures. We look forward to monitoring the implementation of many of these policies and procedures. We would like to see a schedule for training and implementation of as many of these policies as possible. We look forward to being able to monitor and find successful implementation in many of these areas at the time of our June visit.
10

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 11 of 13

RS/kh

Respectfully submitted, R. Shansky, MD

11

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 12 of 13
APPENDIX (compliance indicators)
5. Management of Health Records
Compliance indicators: a. Amount of loose filing available at the time of visit as a reflection of timeliness of filing of documents. b. A form provided to inmates, including a fax number where future medication providers can request a summary.
6. Medication Administration
Compliance indicators: a. Documentation of training for officers which includes inspection of mouths after ingestion. b. Documentation of a procedure which instructs nurses to only document refusals when the patient is present to refuse.
7. Access to Care
Compliance indicators: a. Use of a log that tracks receipt by health care staff of request slips documenting patient’s name and number as well as date of receipt, nature of complaint and timeframe for patient to be seen by a nurse. b. Using this log, studies that document timeliness of both initial triage and face-to-face visits.
8. Emergency Care
Compliance indicators: a. Presence of a logbook for emergency services as well as one for urgent services that allows studies of both timeliness and appropriateness to be performed.
9. Follow Up Care
Compliance indicators: a. Policies and procedures which insure that when patients return from either scheduled or unscheduled offsite services, they are brought to the medical area for review of offsite documentation including efforts to obtain such if not available. b. The scheduling of follow up visits with an advanced level clinician so that the findings and plan can be discussed with the patient. Studies of timeliness of access, both for urgent and routine care, are documented.
11. Dental Care
Compliance indicators: 12

Case 1:09-cv-00849-WMS-JJM Document 266 Filed 02/19/15 Page 13 of 13
a. Studies from the sick call log of nursing responses to toothaches for both timeliness and appropriateness. b. Documentation of the ratio of extractions to restorations are maintained on a monthly basis. 15. Treatment and Management of Communicable Diseases Compliance indicators: a. The presence of an infection control nurse. b. The tracking of the incidence of MRSA infections, TB infections as well as active disease and the tracking and incidence of sexually transmitted diseases. 16. Sexual Abuse Compliance indicators: a. A logbook that documents names and identifiers for patients who have made these allegations. 17. Quality Management Compliance indicators: a. Policies and procedures. b. Minutes of quality improvement committee meetings. c. Quality improvement studies looking at particular areas in systematic ways with an eye towards identifying problems and mitigating them.
13

 
 Case 1:09-cv-00849-WMS-JJM Document 267 Filed 02/19/15 Page 1 of 15
Second Monitoring Report US Department of Justice v. Erie County New York
This report reviews the status of medical program conditions at the time of the second monitoring visit, which took place June 4-8, 2012.
B. Medical Care
1. Policies and Procedures
Compliance Status: Substantial compliance-drafting of policies; Partial complianceimplementation of policies.
Findings With the addition of the policy on privacy, the set of over 40 policies and procedures and forms that I have reviewed addresses all of the areas concerned and in most of them, implementation has begun. In many of them, as would be anticipated with early implementation of policies and procedures, conformance to the policy and procedure requirements warrants improvement. However, what has been accomplished since our last visit, in the eyes of the Monitor, is quite impressive.
Recommendation 1. When it occurs that in the judgment of the leadership team a policy needs to be significantly modified, please send the draft modification for my review before approval and implementation.
2. Medical Autonomy
Compliance Status: Substantial compliance.
Findings We had a very constructive discussion with the Medical Director and the custody leadership of the jail regarding the use of controlled substances. We were impressed with the desire of both health care leadership and custody leadership to accommodate each others’ needs and concerns in a way that allowed for the availability of necessary medications but under very controlled requirements.
Recommendation: None.
3. Privacy
Compliance Status: Partial compliance.

Case 1:09-cv-00849-WMS-JJM Document 267 Filed 02/19/15 Page 2 of 15
Findings The main privacy problem identified was that in order to screen unarraigned patients the screening takes place in an open area where other individuals may overhear the querying and responses. Since mid-May, however, the unarraigned males are no longer coming to Erie County Holding Center and thus a comprehensive screening for unarraigned males will no longer be needed. This will allow for the screening of the arraigned males which is currently done in a much more confidential area, to be the mechanism used not only for the arraigned males but also, we are told, for unarraigned and arraigned females. We are hoping that this change in procedure can occur as rapidly as possible but certainly before our next visit. We also identified concerns about the placement of the nurse, the patient and the officer in the exam room where the arraigned are receiving their screen. It is our perception that if the room is reconfigured slightly and the position of the three individuals is modified it will be much easier to insure auditory confidentiality. We also discussed the need for staff to be trained in how to conduct a very quiet interview in a way that gives the patient confidence that a nearby officer is unable to hear the details of the interchange. We did observe documentation which demonstrates that officers have received the required training regarding confidentiality as have medical staff. All of the interactions with the use of the exam space in the new building pods could be conducted confidentially; however, these rooms are not commonly used. The same is also true for the exam spaces in the old building. The clinic area can afford confidentiality; however, there is a concern that one clinical exam space is used by health care staff as a thruway between two different areas. Although these are health care staff it would be advantageous if the use of the space as a thruway could be diminished. Finally, the maintenance of the health records continues to be separate from the custody records and, from our observation, are transported securely. If the changes described above occur in the booking area, it is entirely possible that this area could move to substantial compliance at our next visit.
Recommendations 1. Health care leadership should train their clinical staff in how to conduct muted, confidential interviews with patients so that a nearby correctional officer would be unable to discern the details. 2. Implement the new procedure in the booking area so that the only screening rooms used by health care staff are afforded reasonable confidentiality. 3. Reconfigure the locations of the patient, the nurse and the custody officer in a manner that allows confidentiality while assuring safety.
4. Training of Custody Staff
Compliance Status: Substantial compliance.
Findings
2

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We reviewed the database which includes all of the required training listed in this Agreement, with the training supervisor for custody. We were able to identify that well over 90% of the officers have received the required training regarding responding to medical urgencies and emergencies, supervision of inmates with serious medical needs, identifying the signs and symptoms of drug and alcohol withdrawal, suicide prevention, sexual abuse, confidentiality as well as CPR and First Aid. The system used by the custody staff is a model for both insuring that training occurs timely as well as tracking when annual training is due.
Recommendation None.
5. Management of Health Records
Compliance Status: Partial compliance.
Findings Although the medical program has, in a general sense, described a desire to convert to an electronic record, there really has been no progress in this area since our last visit. This Agreement does not require an electronic record although having one would eliminate many of the existing problems that remain to be resolved for compliance with this Agreement. The one thing we emphasized with medical and mental health leadership, whether the final decision is for a paper record or an electronic record, is that the Agreement anticipates a unified record and in order to achieve substantial compliance the record must be unified.
With regard to our review of the records, we learned that on weekends there is no access to old inactive records. If this were also true for active records the assessment could be noncompliance, but since it is only true for inactive records the assessment is partial compliance. This problem must be resolved as soon as possible, certainly well before the implementation of an electronic record. We also learned that there is what we perceive as a counterproductive turf problem between medical and mental health staff, in that medical clerks do not pull records for mental health clinicians. All of the staff are County employees and the turf problems can only lead to avoidable delays in the availability of a record. This should be resolved prior to our return. We learned that although loose filing is tracked for the active records it has not been addressed as conscientiously for the archived records. Thus, one could retrieve an archived record and not realize that there was loose filing that was not in the record. We did observe that in the last few weeks a problem list has been utilized in the medical records; however, in most of the records we reviewed, of course, there was no problem list. The implementation of a problem list requires very specific training for clinicians with regard to who can enter problems and what problems should be entered on the problem list. There should be a list of rules for problem list use. In one of the problem lists we observed that a patient who had been in and out had his chronic problem, hypertension, listed twice even though the purpose of a problem list containing chronic problems is to avoid the repetition since these medical problems tend to occur usually for life. We also did not see a
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medication list or profile in any of the records; although this is available electronically, it would have to be printed out for use by the clinician. At a minimum, this should be available for chronic care encounters. We were impressed with the studies done addressing the timeliness of availability of records at ECCF when patients are transferred there from ECHC. The rate of availability in less than one day was well over 80-85%. We strongly encourage studying the outliers in order to improve the timeliness of availability. We also suggest studying the much less frequent transfers from ECCF to ECHC to insure that much more infrequent process is accomplished timely.
Recommendations 1. Insure that there is an updated problem list in each medical record. 2. Track loose filing, both for active and archived records. 3. Correct the access problems for archived records on the weekends. 4. Implement a strategy to insure that there is a medical list or profile available at a minimum for chronic disease visits. 5. Department of Health and Department of Mental Health should jointly pursue a strategy to insure a unified medical record, including the possibility of an electronic record. 6. Perform studies looking at the outlier records which are not available at ECCF within 24 hours of transfer. 7. Perform a study looking at the timeliness of availability at ECHC of records of patients transferred from ECCF to ECHC.
6. Medication Administration
Compliance Status: Partial compliance.
Findings There has been significant improvement in that it is much less common that patients who may be in the housing unit but do not show up to the nurse cart are documented as refusals without any effort to contact them. We observed both a morning and an evening medication pass; in each timeframe we observed medications administered in both the old facility and the new facility. In general, there was improvement in contacting patients and in performing mouth checks. Documentation by the nurses was observed to occur timely. About 10% of those who received medications did not undergo a mouth check. We might add parenthetically the inmates appeared to be quite cooperative when requested to undergo a mouth check. We did observe on one medication pass that although the officer did call in a loud voice that the nurse was present and then at the end of the med pass the officer called for a last call, an inmate who had been somewhere in the housing unit showed up just as the nurse was ready to leave the unit. We discussed with nursing leadership the importance of the medication nurses having a procedure that allowed them to know which of the patients for whom medications should have been administered did not show up in the medication line. This would allow the nurse to request the officer
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to specifically contact this patient and, if there was a refusal, obtain that refusal between the patient and the nurse.
We also observed medication records in which there were at least three doses in a row with a documented refusal but no referral to the prescribing clinician. We found other records in which there were multiple blank spaces. We have explained to nursing leadership how to calculate a medication error rate comparing the number of blank spaces to the number of doses that should have been offered in a given period of time, usually a month. We encouraged reviewing this by analyzing a sample of MARs of patients who are on more than two medications, each month for each nurse that performs a medication administration service.
We also reviewed timeliness studies that were presented to the medical review committee from time of order to time of receipt. Those studies demonstrated that for new orders for patients entering booking, time to receipt at the holding center was 26 hours whereas time to receive at the correctional facility was 18 hours. For medication continuity, the average time at the holding center was 19 hours on reorders and 27 hours at the correctional facility. All of these times are satisfactory with regard to the performance of the medication administration program.
We learned that patients in Erie County who are released by the court do not return to a correctional facility automatically, even to retrieve their property. In our experience this is unusual. This poses a greater challenge for the program to insure reentry medications are available. We looked at a log of patients who had been released and the log documented whether or not they had called the facility regarding their release medications. The rate of calls was extremely low. Thus, medication continuity on reentry is extremely low. There is national data that demonstrates a link between absence of reentry healthcare continuity and an increased rate of recidivism. Thus, not only is the patient affected, but also ultimately the County is affected by this problem. We would strongly encourage you to be creative in designing strategies that would facilitate reentry health care continuity.
Finally, we did discuss the desire in any correctional facility for clinicians to minimize the use of medications that have to be administered more than twice per day and also the desire to minimize the number of medications ordered on an as needed basis.
Recommendations 1. Perform medication error studies each month, calculating the error rate using the methodology previously described and attempt to achieve an error rate of less than 1%. 2. Perform studies on compliance with the policy regarding repetitive refusals. This phenomenon is much increased for patients on psychotropic medications. 3. Repeat the timeliness studies, particularly with regard to patients who enter the holding center and whose medications are verified.
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4. Implement your plan for a poster to be available outside the property window which has information describing how patients can access medications on reentry.
7. Access to Care
Compliance Status: Partial compliance, near substantial compliance.
Findings The Erie County Holding Center and Correctional Facility have implemented procedures that utilize a paper health service request form filled out by the inmate at the time there is a request for a non-urgent symptom to be addressed. These are collected daily and initially paper triaged by an RN. The paper triage is to determine whether the slip describes symptoms that are either urgent or emergent that should be addressed immediately. The slips are then at the Holding Center, given to a nurse practitioner who schedules visits for most of them with a nurse practitioner within the next two days or, for some that appear to be less complex, for a registered nurse. At the Correctional Facility, all patients are scheduled to be seen the next day and when they arrive the head nurse triages them to either a nurse practitioner or a registered nurse. Studies at both facilities demonstrate that well over 80% do have a face-to-face encounter within the required two days. In general, the notes documenting the nursing assessment were appropriate. One of the requirements for the sick call process is that the registered nurse or nurse practitioner insure that the symptom described on their request is addressed. It is not uncommon for both the patient and the clinician to become distracted if some new symptom has developed and the end result is, although the new symptom may be adequately addressed, there is no documentation of any discussion regarding the symptom described on the request form. For the sick call process to achieve substantial compliance, it must be timely, which it appears to be, although it would be extremely useful to review the outliers to determine what is the timeframe in which they get seen and what are the causes for the delays. In addition, the professional performance has to be regularly assessed. The Medical Director is looking at professional performance and we discussed how this can be most effectively done, including reviewing to make sure that the symptom on the request slip has in fact been addressed.
Recommendations 1. Analyze timeliness outliers both to determine how long the delays are and also to implement procedure changes to mitigate the number of outliers. 2. In performing the professional performance review, insure that the clinicians are addressing the symptom described on the request.
8. Emergency Care
Compliance Status: Partial compliance.
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The County has both an emergency care and an urgent care policy. During this visit, the emergency care approach at the time of the emergency and including transport to the offsite service is clinically appropriate and timely. We did find that on return to the facility, there were instances where there was no documentation of the patient’s return through nursing in the booking area and also there was no timely clinician follow up visit to insure that the patient’s health status was appropriate and that the patient understood the findings and plan.
With regard to the urgent care policy, there is a telephone log that has been implemented to document and track the urgent care responses. However, the implementation of this log has created some confusion in that it is not only used for officer calls subsequent to patient expression of urgent symptoms but also used as a vehicle for mental health staff to refer to medical clinicians. If it is necessary to use this for both purposes, it is important that the documentation as well as staff understanding make it clear what the differences are between the two uses of the log. In addition, we identified a few circumstances in which a nurse did not perform a face-to-face assessment as a result of the officer phone call. The policy requires that upon receiving the expression of an urgent symptom from a detainee, the officer is required to contact the medical staff. Similarly, the medical staff is required to perform a face-to-face assessment. When a nurse tells an officer to tell the patient to sign up for sick call instead of complying with the policy and assessing the patient directly, this can be construed by the officer as an appropriate response for him the next time an urgent symptom request is conveyed to him and thus conclude there is no need to call. Serious negative outcomes may ensue. There must be a certain degree of rigidity, both for officers and for nursing staff, in order for this procedure to minimize risk to the patient and reduce liability for the County. We must add that most nurses responded timely with an appropriate assessment. However, in this particular area, most is not good enough.
Recommendations 1. Monitor for nursing notes documenting both send out and return for emergency related trips. 2. Monitor follow up visits by advanced level providers after emergency send outs with documentation of current health status as well as the offsite services, findings and plan having been discussed with the patient. 3. Clarify the utilization of the telephone log with all staff. 4. Monitor adherence to the telephone log documentation rules. 5. Monitor the urgent symptom phone calls for a timely assessment by a nurse in all instances.
9. Follow Up Care
Compliance Status: Partial compliance.
Findings
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This item requires the facilities to implement procedures that insure a process is in place that guarantees timely assessment and follow up, both for unscheduled as well as scheduled offsite services. At both facilities, we reviewed a small sample of unscheduled offsite services provided as well as a mixture of both procedures and consultations within the scheduled offsite service category. We found that implementation of the policies in this area is not yet fully compliant with policy requirements. With regard to the unscheduled offsite services, there should be a nursing note for the send out as well as the return, although in some instances an advanced level clinician note at the time of send out may substitute for the registered nurse note. At the time of return, the nursing note should include whether or not the required documentation of the offsite service is available as well as the patient’s current health status and a description of any new orders that may be recommended. Where there are new orders the nurse is required to contact an advanced level clinician to receive those orders verbally and then to schedule a follow up visit with a clinician and the patient. At the follow up visit by the advanced level clinician, there must be documentation of a discussion with the patient regarding his health status and any offsite findings and recommendations.
With regard to the scheduled offsite services, we again found that there was frequently an absence of nursing notes on return as well as an absence of timely follow up visits with the advanced level provider. The nursing note on return should document what specific service was received and the fact that the patient is being scheduled for a follow up visit and the offsite service report is being retrieved. The clinician visit for follow up to a scheduled offsite service must include a description of the patient’s status, the findings of the offsite service and any future plans. It was quite infrequent that we found records where all of the required assessments and documentation were present. However, we did find in differing records that each of the required assessments were documented. This should explain the assessment as partial compliance.
Recommendations 1. For unscheduled offsite services, monitor for presence and appropriateness of registered nurse notes both at the time of send out and upon return. 2. Monitor for the presence of offsite service records which have been initialed. 3. Monitor for the timeliness and appropriateness of follow up visits with the advanced level clinician. 4. With regard to scheduled offsite services, monitor for the presence of nursing notes on return that contain the information described above. 5. Monitor for the appropriateness and timeliness of advanced level clinician follow up visits containing the required elements listed above.
10. Chronic Disease
Compliance Status: Partial compliance.
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Findings A chronic disease program has been implemented at both facilities. There is a chronic disease registry that lists the names of patients with each chronic disease. However, the current method of creating the chronic disease registry requires a clinician to fill out an encounter form listing the diagnosis, which is then forwarded to a clerk who enters it into a jerry-rigged space in the scheduling software. The data entry by the clerical staff is greatly backlogged so that the list does not contain names of patients recently added to the program and may not be up to date with those who have been released. This is of course an area where an electronic record should solve this problem. We looked at a small sample of records of patients with chronic diseases at each facility and identified opportunities for improvement which were reviewed with the Medical Director. The performance by the advanced level clinicians was consistent with what one would expect to find in a newly implemented program where the staff are becoming used to the guideline requirements. If the Medical Director is able to continue to review records and provide feedback to each clinician, we are confident performance will improve.
Recommendations 1. Work on improving the completeness of the chronic disease registry. 2. During the individual clinical performance reviews, identify patterns of deficiencies which could be used in group training. 3. Consider a procedure that requires the advanced level clinicians to refer any patient whose disease is poorly controlled and does not improve at the follow up visit to the Medical Director. This should enable the Medical Director to be involved with the sickest patients.
11. Dental Care
Compliance Status: Partial compliance.
Findings In reviewing the dental program, our focus is on timeliness of access, particularly with regard to pain, as well as based on the quality of the dentition and the utilization of other procedures than exclusively extractions. We learned at this visit that at the Holding Center, the dentist is onsite two days per week and on one of those days there is no dental assistant available. We also learned that at the Holding Center restorations are not performed. There have been instances where patients are sent offsite to obtain restorations. It is unlikely that the number of restorations performed, if appropriate assistance and equipment were available onsite, would not exceed the number of restorations sent offsite. The standard in the community requires a dental assistant hour for each dentist hour and the use of restorations as an alternative to extractions when the dentition is well maintained. That is the standard that we look for. We also learned that when nurses are addressing dental pain they contact the dentist for orders. We do think that it is important to review the timeliness and appropriateness of the nursing response to dental pain.
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Recommendation 1. Provide a dental assistant hour for each onsite hour of dentist. 2. Implement the requested equipment in order to facilitate onsite restorations. 3. Monitor the timeliness and appropriateness of nursing response to dental pain. 4. Report to the quality improvement committee on a quarterly basis the monthly ratio of restorations to extractions. 5. Monitor and report to the QI committee the rate of post extraction infections.
12. Care for Pregnant Prisoners
Compliance Status: Partial compliance.
Findings Although in the few records we reviewed pregnant women were receiving prenatal vitamins and special diets, we could not review the care because the Women’s and Children’s Hospital was not sending copies of their encounter forms. Rather, they sent a one line note indicating the condition was fine. This is not adequate, either for the Monitor nor for the Medical Director to know the details of what was found at specific prenatal visits. Since the Women and Children’s Hospital utilizes a program which has been certified by the American College of Obstetrics and Gynecology, I am of the belief that the documentation to be received will be fully compliant with those guidelines. However, that documentation must be available within the Erie County medical records. This should explain the basis for the assessment as partial compliance.
Recommendation 1. Insure copies of prenatal visit encounters are present in a timely manner in the Erie County Correctional Institution records.
13. Dietary Allowances and Food Service
Compliance Status: Substantial compliance.
Findings The dietary program at both ECHC and ECCF do provide for special medical diets. In fact, a study was done by the quality improvement program which showed that at both facilities, the timeliness of diet implementation from the time of order was generally within 48 hours. Both facilities have reasonable programs to insure a minimalization of food borne illnesses. With regard to food service workers, the Erie County policy requires that a history and physical be performed within 30 days prior to an inmate being assigned to dietary service. At ECHC inmates are not involved in food preparation, whereas they are involved in food preparation at ECCF. The method for screening, therefore, is to insure that inmates have been cleared by the medical program. This clearance is primarily to insure that the inmate is physically and mentally capable of working in the assigned area. Once assigned to the ECCF
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food service assignment, the inmates are observed and queried at the beginning of the shift by the food service supervisors. This is the appropriate strategy to minimize the likelihood of food borne illness being spread from workers. At ECHC, on the other hand, the escort officer queries the inmates and observes them at the time he collects them in the housing units. This allows him to substitute people if he finds open lesions or if there is a history of gastrointestinal or other disease. Although the methodology at the correctional facility is preferred, given the fact that the inmates at the holding center only work in serving lines, the alternative strategy is satisfactory.
In both areas there has been training on the preparation of special diets. When we reviewed the diet lists there was a large number of what appeared to be dietary preferences, that is, “I cannot eat beans,” or “I cannot eat tomatoes.” These are not special diets. The person who requests such should be counseled to avoid those foods when they are on the menu. There are diets for diabetes and hypertension and low fat, all of which could be eliminated if the master menu was heart healthy. We would encourage investigating the possibility of utilizing a heart healthy diet. We would also encourage the Medical Director working conjointly with custody leadership to implement a plan to educate the inmates on what type of diets are appropriate to be requested and for the Medical Director to instruct the clinicians also as to what type of diets are medically indicated.
With regard to food allergies, the highest degree of sensitivity has been found with peanuts and shellfish and a few other less common items; patients with allergies should avoid those they are allergic to. On the other hand, food sensitivities indicate that a food should be avoided but food with that item on a plate doesn’t result in an allergic reaction. Pregnant women do receive the appropriate vitamin supplements and additional food. Although there could be significant improvement in the education of inmates regarding medical diets and in the education of advanced level clinicians regarding ordering them, the process is timely and is meeting the needs of the patients and that it why there is a finding of substantial compliance.
Recommendations 1. Consider investigating the possibility of a heart healthy master menu. 2. Provide education for inmates and advanced level clinicians regarding the indications for a medical diet.
14. Health Screening of Food Service Workers
Compliance Status: Substantial compliance.
Findings As described in the findings under number 13, all inmates are in essence required to be medically cleared by the health care program no more than 30 days prior to assignment. In addition, at the beginning of each shift that workers work, they are queried regarding any acute illnesses, including
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gastrointestinal, and their arms and hands are observed for open skin lesions. This is consistent with recommended strategies to reduce the probability of spread of food borne illnesses.
Recommendation: None.
15. Treatment and Management of Communicable Diseases
Compliance Status: Partial compliance.
Findings Although the Erie County program has specific procedures with regard to TB prevention as well as the treatment of skin infections and the handling of blood borne illnesses, I have not had a chance to meet with the communicable disease or infection control nurse. This program is a crucial one given the proportion of high risk patients entering your facilities and the focus of the program should be TB control, tracking, monitoring and preventing skin infections, identifying and treating sexually transmitted diseases, monitoring dental sterilization process and post-operative infections and insuring that any reportable diseases are appropriately reported.
Recommendations 1. Draft a position description for the communicable disease/infection control nurse and send it to me for my review. 2. Although the infection control nurse should collect data monthly, she should summarize it on a quarterly basis for the quality improvement committee. Particular areas to be reported on include TB control and prevention, the tracking of skin infections including both presumptive and culture confirmed MRSA, the incidence of sexually transmitted diseases and the occurrence of reportable diseases along with a sterilization report.
16. Sexual Abuse
Compliance Status: Partial compliance.
Findings The County has developed a policy including training regarding the issues of sexual abuse. Quite recently, guidelines have been published by the federal government pursuant to the Prison Rape Elimination Act that describe what should be done in a facility to accomplish the goals of the Act. The training developed by the Department of Corrections and the policy appear to comply with these goals. In addition, we have reviewed the training records and better than 90% of officers have received this training. On the other hand, since medical staff have not yet been trained and they may play a key role in identifying and responding to cases, the assessment is partial compliance.
Recommendation 12

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1. Provide the training to all medical staff with regard to the sexual abuse policy that we have reviewed.
2. Maintain a log so that when cases arise, their handling can be tracked for compliance with the substance abuse policy requirements.
17. Quality Management
Compliance Status: Partial compliance.
Findings Remarkably, despite the absence of a Director of Nursing and a Director of Correctional Health Services, there has been a substantial amount accomplished between our visit six months ago and the current visit. A medical review committee has been created along with a structure of other committees, which were developed in order to achieve compliance with the description in the Agreement. However, in order to simplify the institutional quality management structure, we would suggest that at the top of the structure, as currently exists, there is a correctional oversight committee. Underneath that should be the quality improvement committee which should have a person reporting to it from both DOH and DMH whose responsibility is to track compliance and progress with compliance with the Settlement Agreement. In addition, the quality improvement committee should receive reports containing minutes from the mental health subcommittee as well as the pharmacy and therapeutics subcommittees and training subcommittee. Although the mental health subcommittee should probably report monthly, the other two subcommittees and the infection control nurse should also report quarterly. The mental health subcommittee will be reviewing both the quality of the mental health program from booking to chronic disease treatment as well as compliance with the requirements of the suicide prevention program. Both the Director of Nursing and the Director of Mental Health and the Medical Director should report professional performance enhancement activities on a regular but less frequent basis. Professional performance enhancement review is review of the clinical performance of one clinician by a peer. We are using the language “professional performance enhancement review” as opposed to the phrase “peer review” only because in hospitals the term peer review has been unfortunately associated with possible discipline and its use has been emphasized in relationship to investigations surrounding negative outcomes. Our use of the professional performance enhancement review program is to facilitate professional skill development and thus mitigate the possibility of requiring any type of professional sanction. For all disciplines, professional performance enhancement review should occur more frequently with each clinician at the outset until such time as their performance is deemed to be at appropriate thresholds and after that regular review should occur on a less frequent basis. The Medical Director has begun to review advanced level clinician professional performance and provide feedback. During this visit we discussed documentation requirements for a variety of patient encounters, including offsite service follow-ups as well as chronic disease follow up visits. After training has been provided to the staff, they should expect to be reviewed against the criteria. Among the quality improvement studies already performed, include timeliness of receipt of transfer records,
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completeness of nursing assessments with regard to withdrawal protocol requirements, completeness of placing and reading the TB skin tests on intake, timeliness of visits for sick call, appropriateness of unscheduled send out visits, ratio of extractions to restorations, compliance with chronic care assessments, timeliness of filing loose documents in the medical records and peer review or professional enhancement review by the Medical Director. The program is to be commended for all of its efforts in this area. It is off to an excellent start. With the addition of a Director of Nursing and a Director of Correctional Health Care Services, we are very optimistic about the expansion of this program.
Recommendations 1. Consider restructuring the program so that underneath the correctional oversight committee is the quality improvement committee which reviews data from both medical and mental health. Underneath the quality improvement committee will be subcommittees including mental health, pharmacy and therapeutics, training as well as reporting from dental, infection control and detoxification. This structure would reduce some of the frequency of meetings. 2. Consider initiating patient satisfaction surveys which are targeted to very specific issues, such as sick call program or chronic disease services for either medical or mental health. 3. Begin analyzing and reporting on grievance data, both timeliness and appropriateness of response along with frequency with which the grievant is interviewed by a health care staff member. 4. Include in the quality improvement program mortality reviews as well as sentinel event reviews. 5. During specific areas of this report we have suggested specific items to be studied regarding several of the services. It is expected that those reviews will be part of the data presented at the quality improvement committee meeting.
18. Review of Clinical Care by Responsible Physician
Compliance Status: Partial compliance.
Findings The Medical Director has begun reviewing the work of the advanced level clinicians. When they begin employment he has them work alongside him and he ultimately certifies their privileges. Similar oversight of nursing clinical activities has not yet begun. We would hope that both programs begin to be more completely implemented before our next visit.
Recommendation 1. After the Director of Nursing begins employment the nursing professional performance review program should be initiated.
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2. This program should include review and feedback for all nursing clinical activities including intake screening, sick call, urgent care and medication administration.
3. The Medical Director reviews should include intake health assessments, chronic disease visits, sick call assessments, urgent care assessments and returns from scheduled and unscheduled offsite services.
Respectfully submitted,

RS/kh

R. Shansky, MD Medical Monitor

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 Case 1:09-cv-00849-WMS-JJM Document 268 Filed 02/19/15 Page 1 of 15
Third Monitoring Report US Department of Justice v. Erie County New York
This report reviews the status of medical program conditions at the time of the Third Monitoring visit, which took place November 26-November 30, 2012.
B. Medical Care
1. Policies and Procedures
Compliance Status: Substantial compliance-drafting of policies; Partial complianceimplementation of policies.
Findings As indicated previously, the program has a fairly comprehensive set of policies and procedures which have been reviewed and approved by the Monitor. With regard to implementation, especially the reconstruction of the nursing staff but also changeover in the primary care clinician staff has resulted in significant inconsistencies in compliance with the policies and procedures. In our review of records, we identified problems in the areas of access to care, chronic disease, emergency services and follow up on scheduled and unscheduled offsite services. These inconsistencies with policy and procedure are not surprising given the turnover in staff, due partly to an effort to develop a committed in-house staffing complement. With the addition of the new Director of Nursing who begins in the month of December, we anticipate substantial improvements in implementation of policies at the time of our next visit.
Recommendation 1. Staff should receive training on the policies and procedures, area by area and then the QI program should monitor compliance.
2. Medical Autonomy
Compliance Status: Substantial compliance.
Findings This area remains in substantial compliance as a result of the excellent working relationship between the Medical Director and custody leadership of the jail. As issues develop, the leaders of their respective teams work collegially to address each of their concerns and ultimately, satisfactory resolution does occur.
Recommendation: None.

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3. Privacy
Compliance Status: Substantial compliance.
Findings With the change in the intake processing and the absence of receipt of pre-arraignment males, the current procedure in the booking area is that the medical screen begins in a private area which is appropriate for a confidential service to be provided. There are two available rooms, both of which may be used during high volume periods and each affords appropriate privacy. We observed the intake process and confirmed that privacy is protected. Additionally, we again looked at the medical assessment rooms on the pods in the newer part of the jail. These rooms also are appropriately designed and equipped, and do afford reasonable privacy. They are currently not utilized by nursing staff but are utilized by clinician staff. With regard to the old section of the jail, there are interview rooms which do afford privacy but are not equipped for a clinician or a nurse to perform a health care assessment. These rooms may be utilized for a nursing face-to-face triage as part of the sick call process. If these rooms can be appropriately equipped they could be utilized for health care assessments.
Recommendation 1. Determine whether the interview rooms in the older section of the jail can be equipped so that they can accommodate health care assessments or whether, if this is not possible, they can be utilized for a nursing face-to-face triage.
4. Training of Custody Staff
Compliance Status: Substantial compliance.
Findings We again reviewed the database utilized to track the required training with regard to medical issues, mental health issues including suicide prevention, sexual abuse training, supervision of inmates with serious medical needs, identifying signs and symptoms of drug and alcohol withdrawal, confidentiality as well as CPR and first aid. The sexual abuse training had been performed approximately 12 months earlier and was in the process of being completed in this annual cycle. All other training had been completed. Clearly well over 90% of the officers have received all of the required training.
Recommendation None.
5. Management of Health Records
Compliance Status: Partial compliance.
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There has been significant progress with regard to the management of health records. The problem of lack of access to inactive files, especially on weekends, has been resolved, with staff now available to retrieve records seven days a week. In addition, there has been an effort to improve the timeliness of filing both for active and inactive records. We did not have the opportunity to go through the active and inactive files to determine the effectiveness of this effort. In addition, we are told that clerical staff are now servicing clinicians independent of their particular health care field. We also observed that a majority of the records we reviewed contained both a problem list and on the same document a listing of medications. This is a significant advance and reflects both training and effort on the part of the staff. However, the problem lists contained only medical problems; thus, the mental health program was not participating in the utilization of the problem list and the medication list. Although the problem list form does include a place for mental health diagnoses and psychiatric history, in the records we reviewed of patients with mental illnesses, these sections were not utilized. This is not consistent with the goal of the program or of this Agreement that there be a unified medical record. Thus, the status despite progress remains in partial compliance. There has been some activity working toward the implementation of an electronic record and several of these problems clearly could be resolved with the implementation of an electronic record.
Since October 15 the Medical Director has instructed the clinicians to utilize a specific documentation pneumonic to insure that each encounter includes the required information. This mnemonic is O for outcomes of visit, F for follow up, I for any infection referrals, R for any registrations and M for medical management. This has improved the quality of the documentation. We also discussed setting up processes that enable clinicians to better utilize available information; that is, when chronic care encounters occur there should be available a copy of the active medication administration record, both for medical and mental health, as well as copies of monitoring data, such as fingersticks or blood pressures, that would enable the clinician to use that data to better assess the health status of the patient.
Recommendations 1. Work on implementing the problem list and medication list in the mental health section so that the record becomes more unified. 2. Continue efforts to pursue an electronic medical record that should help resolve several of the outstanding issues. 3. Make available for medical and mental health chronic care visits a copy of the active MAR and any monitoring data.
6. Medication Administration
Compliance Status: Partial compliance.
Findings
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We observed both a morning and evening medication administration process at the holding center. In each medication pass, both morning and evening, we reviewed the administration as it occurred in both the old jail housing units and the newer jail housing units. Although it is our perception that improvement has occurred, we still identified some problems and discussed these with a member of the nursing leadership team. Most importantly, when the nurses perform the medication administration service there are a sequence of steps that they must perform for each patient. What we observed was that intermittently they might skip one or more of these required steps, including the documentation of the administration. We suggested development of a card for each nurse performing medication administration services that would list the sequence of steps so that they would ultimately develop a rhythm that insured that they perform all steps for each patient. We also observed, in some housing units, that rather than the nurse determining at the end of the medication administration service that there were some medication administration records which had not yet been utilized and the patient had not come forward to the nurse, officers in the housing unit would instead announce “last call” like you might hear in a tavern. Right now only the nurse should know if there are any medication administration records that have yet to be addressed. We discussed with custody that in many facilities the pharmacy each day provides for each housing unit for both the nurse and custody a list of patients in that housing unit on medications. This would allow both the nurse and the officer to know who had presented themselves and who had not, because as they presented themselves the name would be checked off the list. In any event, it is the responsibility of the nurse to know who has not presented themselves and to request of the officer that the patient be contacted so that they are able to either receive the ordered medication or refuse it. In the pod housing units, we observed that at the end of the medication administration there were still several medication administration records that had not been utilized. We learned that this was due to the fact that several of the patients who should have received medications were out to recreation. We discussed with custody the need to coordinate the timing of the medication administration so that there is no conflict with recreation. Currently, when there is such a conflict, the nurse has to return to the housing unit after the recreation has been completed in order to complete the medication administration. This is clearly very inefficient.
We learned that for patients leaving the jail, instead of posting a flyer outside the window where they receive their property, a handout had been developed which not only has information about where to obtain the discharge medications but also information regarding patients who were receiving detoxification treatment, as well as information regarding medical record requests and tuberculosis testing. Unfortunately, when we first came to the window and requested the information record we were told that it did not exist. This was corrected ultimately and is based on an inexplicable decision by staff working at the window. Presumably this will be intermittently monitored.
Another problem we identified was that nurses are not referring patients to clinicians when they refuse medications consistently. The policy requires that when three medications are refused sequentially, or a significant number in a week, the patient is to be given an appointment with the clinician. We
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observed a patient who was receiving medication for his diabetes, but had been refusing his evening dose. He indicated that because the order to perform finger sticks had been discontinued he was anxious that without a finger stick his sugar might be too low for him to be taking the medication, which would only drive the sugar lower. He had refused consistently over the month and there was no referral. He also indicated that he had requested on two occasions through a paper request to see the clinician, but nothing had happened. This is a very good example of why it is important for patients who are refusing medications consistently to be referred to the clinician automatically.
We reviewed the data with regard to medication errors and observed that most recently the error rate was about 3.5%. We indicated that the initial target should be a rate of less than 1%. This error rate is mostly a reflection of failure to document either administration or refusal for given doses for given patients. This is a reflection of the fact that nurses are probably forgetting the documentation step when they are administering the medications.
Recommendations 1. Develop a list of the steps that the nurse must perform for each patient medication administration and make this available so that the sequence can be observed by nursing supervisors. 2. The nurse must determine at the end of each medication administration which patients have not stepped forward and need to be contacted by the officer. 3. The timing of the medication administration for each housing unit should be coordinated with custody so that all of the patients, with the exception of those out to court for whom a separate arrangement is made, are available for the medication administration. 4. Intermittently monitor the availability of the discharge medical information sheet to be given to patients upon release. 5. Continue to monitor medication errors by reviewing MARs of patients on multiple medications. 6. Also monitor for whether consistent refusal results in a referral to the clinician to discuss the treatment plan. 7. Perform studies on the timeliness of receipt of medications from time of order at intake. 8. Perform studies of the timeliness from order of medications not at intake to receipt by the patient.
7. Access to Care
Compliance Status: Partial compliance.
Findings Both at the Erie County Holding Center and Erie County Correctional Facility studies have been performed which document that about 80% of requests are seen within two days of receipt. At the
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holding center the triaging nurse refers patients usually to the clinician, but where the case seems to be non-complicated they may go directly to a registered nurse. At the correctional facility, each morning the clinician and the nurse discuss which patients should be seen by which discipline, either an advanced level provider or a registered nurse. Sick call slips are collected daily at both facilities and paper triage also by an RN at each facility. One of the problems we identified which results in a compliance status of partial compliance is that both clinicians and nurses sometimes fail to address the complaints documented on the paper request. This is not unusual. Clinicians if taking an urgent care center approach, may say something like, “What is your problem today?” The patient therefore may respond by whatever symptom has been most recent. All encounters by both clinicians and nurses must begin with the assessor questioning the symptoms documented on the health service request. Once those are addressed, any other issues may be also addressed. It is unacceptable to begin the encounter in a completely open-ended fashion when in fact in the record there is a description of one or more specific symptoms. To use the open-ended approach merely manufactures liability for both the patient and the County. We also did identify that of the roughly 20% of patients who were not seen within two days, there may be problems in that some of them do not appear to be seen at all. It would be important to review the timelines for the outliers, insuring that the studies document whether the patients are remaining in the facilities. We of course found variability in the quality also of the professional performance with regard to the assessments. This should ultimately be addressed by the Medical Director, reviewing and providing feedback to the clinicians and the new Nursing Director reviewing and providing feedback to the registered nurses.
Recommendations 1. Review the timeliness and circumstances surrounding the 20% of requests that are not addressed within two days. 2. Insure that the professional performance review monitors whether all symptoms described on the paper request have in fact been addressed during the encounter.
8. Emergency Care
Compliance Status: Partial compliance.
Findings The emergency response (man down) tends to be handled quite well. Assessments seem to be both timely and appropriate and where indicated patients are sent out timely. The policy with regard to urgent care services requires a log be maintained at each facility that documents the patient name, date and time and presenting complaint and ultimately the disposition. This log ceased to be maintained a few months ago at the holding center. This is a requirement of the policy and it is critically useful for supervisory staff to review selected records and provide feedback to clinicians. Additionally, for all unscheduled send outs, there should be a nursing note that briefly describes the clinical circumstances and the discussion with the authorizing clinician who ordered the send out. In our record review this
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did not always occur. Additionally, patients are to be seen by a nurse at the time of return and in that encounter the nurse also determines whether the required paperwork from the offsite service is available. If it is not available it is the obligation of that nurse to take steps to retrieve it. The patient is then supposed to be seen by the primary care clinician within 24 hours. That latter step is usually occurring, although not always. The nursing note on return is occurring even less frequently. This is an area that clearly requires addressing. Both training for the nurses and then monitoring by the quality improvement program will facilitate compliance with these items.
Recommendations 1. Insure that an urgent care log is in fact conscientiously maintained at each facility. 2. This urgent care log should be reviewed on a regular basis by both the Medical Director and Director of Nursing in order to provide feedback to clinicians and nurses with regard to professional performance. 3. Training should be provided to the nursing staff with regard to their obligations regarding documentation both on send out of unscheduled services and on return. 4. The QI program should also monitor the nursing performance with regard to these services. 5. The QI program must also monitor the clinician performance with regard to initial assessments and follow up visits after unscheduled services are provided.
9. Follow Up Care
Compliance Status: Partial compliance.
Findings This item refers to follow up visits for both unscheduled and scheduled offsite services. However, we discussed follow up on unscheduled services with regard to number eight. So on this item we will focus on scheduled offsite services. With regard to this process, when patients are sent offsite for either consultations or procedures any documentation should be returned to nursing staff. It is important that nursing staff are aware of what offsite services have been provided and whether when the patient is returned the patient is accompanied by a report of the services. Ultimately, either a nurse or the scheduler must insure that the reports are available and insure that there is a follow up visit with the primary care clinician within a week of the retrieval of the report. It was common in the records we reviewed for these follow up visits not to be located. The process has to insure that not only are the visits scheduled timely but also that the paperwork is then retrieved timely and there is a timely follow up encounter with a primary care clinician in which there is documentation of a discussion of both the findings and plan. A program that consistently accomplishes this substantially reduces liability, both to the patient and to the County.
Recommendations
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1. Institute a process that insures that scheduled offsite service reports are retrieved and reviewed by the clinician timely.
2. Institute a process whereby the patient is seen within two weeks of the offsite service and the findings and plan are documented as having been discussed.
3. Monitor this process through your QI program.
10. Chronic Disease
Compliance Status: Partial compliance.
Findings Although there is a chronic disease program at both facilities, performance by the clinicians is not consistent with either local policy or national guidelines. One problem we identified was despite a policy requirement that any patient on chronic medications must have a history and physical within three to five days of entry, this was commonly not occurring. Secondly, patients who entered with a chronic disease were not having their initial baseline chronic disease visit scheduled within the first 30 days. Instead, some patients were scheduled to have their first chronic disease visit more than 90 days after entry. Thirdly, follow up visits were not consistently scheduled based on how well controlled the patient’s diseases were. The standard requires that follow up visits of patients in poor control occur more rapidly than patients in good control. In addition, clinicians were not insuring that baseline lab data was available for the initial chronic disease visit. This is also a policy requirement which enables the clinician to appropriately assess the degree of control. The current process of creating the database for tracking patients with chronic diseases is backlogged by at least three to four days, thus precluding an up-to-ate registry of all the patients who have chronic diseases. We did identify a patient who, despite entering the system in June and despite having been seen on several occasions as a result of sick call requests, had still not had a baseline visit addressing her hypertension or diabetes as of November. Clearly, this system can and will be tightened up substantially. Part of the problem we ascribed to the turnover of clinician staff and some of the clinicians are quite new to the program. This clearly is a challenge for the Medical Director. We also found treatment regimens which utilized medications that resulted in multiple times per day dosing, which creates extra resource demands in a correctional setting. Simplifying regimens, particularly with hypertension where there are so many options, should be part of the treatment planning. We would expect, assuming that the clinician staff is stable, substantial progress will be made in this area by the time of our next visit.
Recommendations 1. Work on improving the completeness of the chronic disease registry. 2. During the individual clinical performance reviews, identify patterns of deficiencies which could be used in group training.
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3. Consider a procedure that requires the advanced level clinicians to refer any patient whose disease is poorly controlled and does not improve at the follow up visit to the Medical Director. This should enable the Medical Director to be involved with the sickest patients.
4. Insure that the first database visit occurs no later than Day 30 after intake for patients who are well controlled and significantly earlier for patients who are less well controlled.
11. Dental Care
Compliance Status: Partial compliance.
Findings The dental program has been handicapped by the fact that since the dentists have been scheduled to be at the holding center and at the correctional facility on Tuesdays and Thursdays, the one dental assistant is only able to assist one dentist at a time. We are told that there are plans to change the dental schedule so that at each site there will be three days of dentist, two of which will include a dental assistant. Our understanding is on Mondays the holding center will have a dentist and dental assistant. On Tuesdays, the correctional facility will have a dentist plus a dental assistant and the holding center will just have a dentist. On Wednesdays there will a dentist and dental assistant at the correctional facility and on Thursdays there will be a dentist and dental assistant at the holding center but just a dentist at the correctional facility. Finally, every other Friday there will be a dentist with an assistant at the holding center and every other Saturday there will be a dentist with an assistant at the correctional facility. We are pleased to report that the dentists have recently begun to perform restorations. We have indicated that the ratio of restorations to extractions should be monitored on a monthly basis. The standard of practice in the community is that when the dentition is in relatively good shape, a restoration is the appropriate plan rather than an extraction. Historically, the Erie County dental program almost exclusively provided extractions independent of the maintenance of the dentition. Fortunately this is changing. We are encouraging the monitoring of these ratios on a regular basis.
Recommendations 1. Monitor the timeliness and appropriateness of nursing response to dental pain with the new schedule, nursing may be less involved in responding to dental pain as dentists will be onsite more frequently. 2. Continue to monitor the ratio of restorations to extractions. 3. The QI committee should monitor the rate of post-extraction infections. 4. The dental program should report to the infection control coordinator on a quarterly basis sterilization monitoring data.
12. Care for Pregnant Prisoners
Compliance Status: Substantial compliance.
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Findings Most of the pregnant females are housed at the correctional facility. We reviewed records there and found that patients are being seen regularly by OB/GYN programs and are being monitored in a manner consistent with American College of Obstetrics and Gynecology guidelines. The full record of each encounter is now present in the Erie County record and any recommendations from the OB/GYN program are carried out timely. The County is to be commended for improving this area.
Recommendation None.
13. Dietary Allowances and Food Service
Compliance Status: Partial compliance.
Findings This area has slipped back to partial compliance because we were unaware of the lack of availability of a dietary consultant to advise the chief cook at each facility. The issue came up when we came across a type 1 diabetic and although there were some behavioral issues with this patient, nonetheless this is the type of fragile patient for whom such consultation needs to be available so that appropriate substitutions can be made. It is our understanding that current efforts are underway to acquire a dietitian consultant who could serve both facilities. Once this is in place this area could return to substantial compliance. We also learned that although there has been a reduction in what we characterize as food preference diets, some of these are still being ordered. This is being monitored by the Medical Director and hopefully these will be eliminated before our next visit. We continue to recommend the consideration of a heart healthy diet which we feel would greatly reduce the requirement for special diets. We understand that the dietician consultant could be of immense help in providing guidance for specifications on such a diet.
Recommendations 1. Acquire the services of a dietician consultant. 2. Consider adopting a heart healthy master menu.
14. Health Screening of Food Service Workers
Compliance Status: Substantial compliance.
Findings As indicated previously, food services workers at the holding center are not involved in food preparation. They are only involved in serving and cleaning. At the correctional facility, food service workers are involved in food preparation. In both facilities, there is a daily effort to screen out individuals who could potentially spread food borne illnesses. This effort consists of insuring that workers are not suffering from any gastrointestinal disease and have no open lesions on their arms or
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hands. In both facilities there is a prior medical clearance that is performed to insure that eligible workers are physically and mentally capable of working in the assigned area. The current methods for screening are satisfactory.
Recommendation None.
15. Treatment and Management of Communicable Diseases
Compliance Status: Partial compliance.
Findings Although there is monitoring of TB control and especially the rate at which eligible and available new entries to the jail are screened, the communicable disease program needs to be much broader. We are encouraged that the new Director of Nursing has superb credentials with regard to infection control and in fact has run such programs at hospitals during her career. Any correctional communicable disease program, as indicated earlier, must focus not only on TB control but also tracking, monitoring and preventing skin infections, identifying and treating sexually transmitted diseases, monitoring dental sterilization processes and post-operative infections and insuring that any reportable diseases are appropriately reported. Additionally, alertness for outbreaks such as food borne illnesses or other communicable diseases must be addressed. Working through the health department is a huge advantage for this program.
Recommendations 1. Draft a position description for the communicable disease/infection control nurse and send it to me for my review. 2. Although the infection control nurse should collect data monthly, she should summarize it on a quarterly basis for the quality improvement committee. Particular areas to be reported on include TB control and prevention, the tracking of skin infections including both presumptive and culture confirmed MRSA, the incidence of sexually transmitted diseases and the occurrence of reportable diseases along with a sterilization report.
16. Sexual Abuse
Compliance Status: Substantial compliance except for the training of medical staff.
Findings We have reviewed investigative reports regarding allegations of sexual abuse since our last visit and one of these in fact was initially reported to a member of the health care staff. In each instance the required procedures were followed and the program appears to have handled the issue well. All of the correctional staff are in the process of being retrained and the mental health staff have also been trained. Because of the turnover in the medical staff, the sexual abuse training has not been completed
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for a significant number of staff and on that basis there cannot be full substantial compliance until health care staff have been trained.
Recommendation 1. Provide the training to all medical staff with regard to the sexual abuse policy that we have reviewed.
17. Quality Management
Compliance Status: Partial compliance.
Findings Despite the turnover of staff and the absence of a Quality Improvement Coordinator, there has been as reviewed by the Monitor a substantial amount of data collected regarding the performance of the program. This data includes timeliness to be seen in sick call after receipt of health service requests, both at the holding center and at Alden, data on the occurrence of booking, a study of the timeliness of filing within the medical record, a study of completion of detoxification monitoring and studies done on timeliness of initial physical exam as well as TB skin testing. The program is to be commended for these efforts in the face of competing demands as the program is reconstructed. It is our understanding that there is a proposal by the Director of Correctional Health Services for a Quality Improvement Coordinator position. This Monitor is comfortable stating that without that resource the probability of achieving substantial compliance on all items and most especially items 17 and 18 is greatly reduced. This is a critical resource that will help provide the final piece of the infrastructure that has yet to be put in place. As you have read this report, in many of the sections the recommendations entail quality improvement monitoring in order to identify opportunities for improvement. Let me be clear: monitoring alone without data analysis including understanding the underlying contributing factors to performance that is not adequate and then from that understanding targeting improvement strategies to address those factors is what the quality management program anticipates and requires. This takes energy not just from the leadership team but also from as many line staff as is possible. In this report we have identified several areas where there are opportunities for improvement either with regard to professional performance or with regard to process improvement. Those improvements will not occur without a viable and robust quality management program. It is apparent to this Monitor that the County is assembling a very talented leadership team that is quite capable of achieving the goals of this Agreement. However, unless the quality management program is actualized, achieving substantial compliance is not very likely. Throughout this report the recommendations include activities to be performed through the quality management program. I will not relist those items but they should form the basis for some initial activities to be performed through the quality management program.
Recommendations
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1. Bring on board a quality management coordinator to facilitate the development of this critical program.
18. Review of Clinical Care by Responsible Physician
Compliance Status: Partial compliance.
Findings We have reviewed the reviews performed by the Medical Director of each of the clinician staff. He is reviewing five records per provider per quarter randomly selected. We discussed the advisability of rather than randomly selecting records, an effort should be made to identify records of higher risk patients. This can be done through chronic disease lists, particularly patients with multiple chronic diseases, including patients who are elderly as well as patients sent offsite for either scheduled or unscheduled services. The more complex the patient is the more material for review with the staff and more opportunities for educating the staff. Clearly there is so much for the Medical Director to do with his staff, including the chronic care program, sick call performance, urgent care performance, follow up of offsite services and responses to emergencies. Particularly given the staff turnover, this is going to take some time. We also understand that the Medical Director himself has clinical obligations which in part are impacted by the availability of a full staffing compliment and we do understand that clinical mandates supersede mentoring mandates. On the other hand, we have seen the Medical Director interact with his staff and we have found his approach to be extremely constructive and collegial, even in the face of chagrin at the observed level of performance. With the required positions filled we are confident that this can become a high performing group.
Recommendations 1. Make an effort to select cases for review with each clinician that are by design more complex or high risk.
III. Protection from Harm
E. Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Substantial compliance.
Findings Both the policy and the training are consistent with an assessment of substantial compliance.
Recommendation None.
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I. Training of Medical and Mental Health Staff
Compliance Status: Partial compliance.
Findings Although the mental health staff have completed their training, the medical staff due to turnover have not yet completed their training.
Recommendation 1. Complete the training with regard to sexual abuse policy for all medical staff.
J. Suicide Prevention Program e. Privacy
Compliance Status: Substantial compliance.
Findings See number 3 under Medical Care section.
Recommendation None.
f. Assessment of Inmates in Detoxification
Compliance Status: Partial compliance.
Findings When CIWA screens are started in the booking area, compliance tends to be quite good. However, when the detox screening is not started in the booking area nurses have not been initiating detoxification screening the leadership of nursing is aware of this and this will be addressed, thus the partial compliance.
D. Training of Officer Staff with Regard to Suicide Prevention Training
Compliance Status: Substantial compliance.
Findings See number 4 under Medical Care section.
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3. Detoxification Training Program
Compliance Status: Partial compliance.
Findings A significant number of the medical staff due to turnover have not had this training.
Recommendation 1. Where they are in partial compliance in each instance provide the training.
Respectfully submitted,

RS/kh

R. Shansky, MD Medical Monitor

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Fourth Monitoring Report US Department of Justice v. Erie County New York
This report reviews the status of medical program conditions at the time of the Fourth Monitoring visit, which took place June 9-14, 2013.
B. Medical Care
1. Policies and Procedures Compliance Status: Substantial compliance drafting of policies; partial compliance, implementation of policies.
Findings The department of Health leadership at the Erie County Detention Facility medical programs continues to annually review and update policies. Most recently, we had the opportunity to briefly review the new TB control policy. The Department of Health is fortunate in that the Medical Director of their jail medical program is also the Department’s chief tuberculosis control officer. Centers for Disease Control recommendations with regard to TB services in correctional facilities recommends that the local jail health program comply with local health department recommendations. Having the same person responsible for both areas guarantees that this will always be the case.
With regard to implementation, however, this is still a work in progress. In reviewing records at both the correctional facility and the holding center, we identified problems with implementation with regard to the sick call process, the chronic care program, the unscheduled offsite service program and the scheduled offsite service program. This is understandable in that there are many newly trained staff, especially at the holding center. In fact, with the new leadership team focusing primarily at the holding center, our review demonstrated that compliance with policies in these areas was better at the holding center than at the correctional facility. Prior to our review, the Health Service Administrator had already decided to station himself a majority of the time at the correctional facility. Clearly, through the program’s own self-monitoring, they were aware that process performance at the correctional facility was problematic. We have been quite impressed with the excellence of the new leadership team. We have long admired the work of the Medical Director; however, we believe that both the new Health Service Administrator and the new Director of Nursing have greatly contributed to the creation of a strong leadership team. With their ability to work closely with what is also perceived as a strong custody leadership team, we anticipate relatively rapid progress which will be measureable at the time of our next visit.

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Recommendation 1. Continue to train staff at both facilities with regard to these operational policies and procedures and continue to monitor performance with regard to these processes through your quality improvement program.
2. Medical Autonomy Compliance Status: Substantial compliance.
Findings This area remains in substantial compliance because of the excellent working relationship between health care leadership and custody leadership at both facilities. All respond professionally to conflicts and resolutions of the conflicts are achieved relatively quickly.
Recommendation: None.
3. Privacy Compliance Status: Substantial compliance.
Findings We reviewed the new space for the intake process and find it well designed to provide both privacy and efficiency. We also revisited the rooms that are used for assessments in the pods and although the privacy was quite adequate, we did find the use of examination tables without the use of examination table paper on the tables and also without the use of any sanitizing fluid between patients. This of course is not a privacy matter but it clearly is a sanitation and hygiene matter and the leadership agreed that this had to be corrected immediately. The analogous rooms in the old jail are not yet equipped for assessments but they do afford some privacy for patient interviews. Only if these rooms are appropriately equipped should they be utilized for nursing or clinician assessments.
Recommendation 1. When the program begins to utilize the new intake space, observe the processes for adequacy of the protection of privacy; sometimes even if the space is adequate, staff needs to be trained with regard to how they provide services so that it is done in a manner that protects privacy.
4. Training of Custody Staff Compliance Status: Substantial compliance.
Findings
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The training coordinator of the custody staff continues to maintain meticulous records documenting the receipt of training in the required topics. As we understand it, training regarding recognition of medical problems is only done for new officers. On the other hand, training with regard to alcohol and substance abuse and withdrawal symptoms along with suicide issues and CPR are redone annually. All officers completed the training in 2012 and this will be repeated later this fall. We did identify that an important topic for which they have not received training deals with the problem of MRSA. The Medical Director and Director of Nursing indicated that they would provide training to the officers so that they have a realistic understanding of how to respond to patients with MRSA.
Recommendation 1. Provide the training to officers with regard to MRSA.
5. Management of Health Records Compliance Status: Partial compliance.
Findings Although there has been some improvement with regard to the organization of the health records, problems persist with regard to timely filing of important documents as well as maintenance of the problem lists. There is timely accessibility to old records and we visited a converted room that has well-organized, easily accessible filing cabinets as is found in a typical free world health care program. We were told that next week the use of the filing area outside of the jail would no longer be needed as within a five-day period records will be moved from that site to the new space described above. This is a substantial step forward and continues to demonstrate the County’s good faith in meeting the obligations of the settlement agreement. With the old records onsite within the medical program space, access should never again present a problem. Additionally, plans for a new electronic record system are in the works and we look forward to when that process begins implementation. At this point there is a request for a proposal for which proposals will be submitted and a vendor selected. We look forward to working with the leadership team on implementation.
Medical staff continue to utilize the O for outcomes, F for follow up, I for infection control issues, R for any registrations and M for medical management methodology, insuring that content for each area is addressed when appropriate. In addition, the Medical Director has created some disease specific order sheets for cardiovascular diseases, viral diseases, hypertension, hyperlipidemia, asthma and neurologic problems. These are helpful in prompting the clinicians to write orders based on specific chronic disease guidelines.
Recommendations
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1. Work on implementing the problem list and medication list in the mental health section so that the record becomes more unified.
2. Continue efforts to pursue an electronic medical record that should help resolve several of the outstanding issues.
3. Make available for medical and mental health chronic care visits a copy of the active MAR and any monitoring data.
6. Medication Administration Compliance Status: Substantial compliance.
Findings We observed both a morning and evening medication administration process at the holding center. For both the morning and evening passes, we observed the pass performed in both the old and the new jail housing units. There was a substantial improvement with regard to the four nurses whose work we reviewed. They were well organized, they accomplished the sequence of steps required in the medication administration process so that the correct patient receives the correct medication in the correct dose and is observed ingesting it and that this is documented timely. The nurses utilized a process with the loose leaf binder such that at the beginning of the medication administration process the medication administration records were on the left side of the binder; as the meds were administered they were moved to the center of the binder and this enabled the nurses to determine whether all the patients who should have presented themselves for the medication administration were in fact presenting themselves. In some of the housing units the nurse was able to request that the officer contact a patient who had not shown up so that they could either receive the medication or refuse face-to-face with a nurse. This was a well-run medication administration process. The nurses also were conscientious in inspecting the mouths of patients post-ingestion.
We also checked at the window outside where patients receive their property and the appropriate form was available. This form provided a phone number to a pharmacy which would enable the patients to access a prescription in the community. This form also contains information regarding detoxification treatment as well as medical record requests and tuberculosis testing. At this visit, we did not review records in which we observed three refusals in a row. We will clearly review this the next time. It is also important that the quality improvement program monitor compliance with this requirement.
Recommendations 1. The nursing QI program should continue to intermittently monitor the performance of nursing during the medication administration process. 2. Continue to monitor referral of patients after their three consecutive refusals. This is particularly important in the mental health housing units. These referrals must go to the
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prescribing clinician, who must see the patient and determine whether the dosage schedule should be changed, the medication discontinued or some other strategy be implemented. 3. Continue to monitor medication errors by reviewing MARs of patients on multiple medications. 4. Continue to monitor the timeliness of availability of medications, both prescribed during the intake process and at other times during an inmate’s stay.
7. Access to Care Compliance Status: Partial compliance.
Findings Quality improvement data continues to support the view that 80% of requests are seen within two days of receipt. In the record reviews we performed, the most common breakdown, which was worse at the correctional facility than at the holding center, was with regard to the referral to clinicians. We found several instances, again more commonly at the correctional facility than at the holding center, where a documented referral was not followed by a documented encounter in the records we reviewed. The reasons for this must be investigated. When the QI program performs a study and finds records where this is what was observed, it behooves them to, at that time, attempt to identify the causes. It is only by identifying the causes that your QI program can develop a targeted improvement strategy that will mitigate the cause and improve the outcome. It is also important for the professional performance part of the QI program and in this instance discipline-specific leadership, that is Medical Director for review of clinician performance and Nursing Director for review of nursing performance, to insure that the encounter addressed the issues raised on the Health Service Request form in a manner that results in adequate subjective data, adequate objective data and appropriate assessment/diagnosis and an appropriate plan. This must be done on an ongoing basis until such time as the professional performance has reached a satisfactory level. After that, these reviews should be intermittent, such as quarterly. Given the turnover of both advanced level provider staff as well as nursing staff, these types of professional performance issues are not at all surprising. As the nurses consistently receive feedback with regard to their performance, I am quite optimistic that they will achieve the threshold that the program expects.
Recommendations 1. Review the timeliness and circumstances surrounding the 20% of requests that are not addressed within two days. 2. Insure that the professional performance review monitors whether all symptoms described on the paper request have in fact been addressed during the encounter.
8. Emergency Care
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Compliance Status: Partial compliance.
Findings The emergency response (man down) continues to be handled well. However, there are sometimes process issues with regard to insuring that a nursing note accompanies each send out offsite. There is now an urgent care log maintained at each facility that documents patient name, date and time. It needs to continue to document the presenting complaint but in addition it must include the ultimate disposition for the patient. These dispositions could be “returned to housing unit,” or “send out to emergency room” or sometimes “maintain in clinic for observation.” It is also important that patients are seen by a nurse at the time of return, where that nurse documents the presence of required paperwork from the offsite service or, if that paperwork is not available, takes steps to retrieve it. More often than not, the patient was seen by a primary care clinician timely. However, we did not find this 100% of the time. As you continue to monitor both the process and professional performance through your quality improvement program, we anticipate compliance with the policies.
Recommendations 1. Insure that the urgent care log at both facilities contains a field for presenting complaint and a field for disposition. You may want to add other fields that you would find helpful. 2. The urgent care log should be reviewed on a regular basis by both the Medical Director and Director of Nursing in order to provide feedback to clinicians and nurses with regard to professional performance. 3. Nursing staff should be retrained with regard to their obligations regarding documentation, both at the time of send out of unscheduled services and at the time of return. 4. The QI program should monitor nursing performance with regard to the services. 5. The QI program should also monitor clinician performance with regard to both initial assessments and follow up visits after unscheduled services are provided.
9. Follow Up Care Compliance Status: Partial compliance.
Findings We will continue for this item to refer to the follow-up care after scheduled offsite services. This includes both specialty consults as well as procedures. Our review of records included samples from both the correctional facility as well as the holding center. Critical to this service is an adequate justification by the clinician for the need for this service. Recently, the Medical Director implemented a prior review and approval before such services are scheduled. What is critical for the Medical Director is if his assessment reveals that the recommended service is not best for the patient, he should recommend an alternative plan of care. He should not view this as
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purely approving or denying, since denying does not address the patient’s ongoing problem. Once the service is approved or there is an alternative plan of care, the patient must be notified and then the service scheduled or the alternative plan implemented in a timely manner. When the offsite service is approved, the return of the patient should require that custody bring the patient to a nurse. This was happening at the holding center; however, it was not always happening at the correctional facility. When the patient is seen by the receiving nurse, the nurse should determine if the appropriate paperwork has accompanied the patient and if not, arrange for the report to be retrieved. For consultations, almost invariably the paperwork accompanies the patient. For procedures which require a dictation and a transcription after the service is reviewed, it is possible there may be a two-to-four day delay. Either the nurse or more commonly the scheduler should be aware of the expected timeframe for return of the report and contact the service when that timeframe has elapsed. Once the report is available, the patient should be scheduled for a follow-up visit with the primary care clinician, who should document a discussion with the patient regarding the findings and plan and the patient’s understanding thereof. There were problems at both facilities with this service in the records we reviewed; however, the frequency of the problems was greater at the correctional facility.
Recommendations 1. Insure that, especially at the correctional facility, patients returning from all offsite services that are scheduled or unscheduled return through a nurse. 2. The Medical Director should insure that where a recommended service is not approved, there is a recommended alternative plan of care which gets implemented. 3. Both facilities must have a process in place to insure that after reports have returned, there is a follow-up visit with the primary care clinician in which they document a discussion with the patient regarding the findings and plan and the patient’s understanding.
10. Chronic Disease Compliance Status: Partial compliance.
Findings There has been some progress with the chronic disease program, including the implementation of some disease specific order sheets along with the introduction of a disease specific follow-up visit form that can be used for patients with multiple chronic diseases. The form is modeled after the National Commission on Correctional Health Care follow-up form and does contain the content that is required in that form. Currently, there is no form used for the initial visits and, as a result, several of the initial visit encounters we reviewed lacked some of the required disease specific history that should be collected on patients with those specific diseases. The Medical Director indicated that he would be implementing a variation of the NCCHC initial visit form which I have reviewed. He is also training his clinicians to utilize the framework of disease
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control as the basis for the program, with the philosophy that it is the clinician’s responsibility to work with the patient to bring the disease or diseases into good control as expeditiously as is clinically appropriate. Many of these changes are very recent and we look forward to reviewing records on the next visit when we should see improved performance. Although the chronic disease list was generally appropriate, we did find at least one inconsistency with the list that we received.
Recommendations 1. Continue to work on validating the completeness of the chronic disease registry. 2. Continue to review the professional performance, particularly with the utilization of the chronic disease order forms and the chronic disease initial visit and follow-up visit encounter forms. If, despite the aid of these forms, performance does not improve, which is unlikely, it suggests that continuation working for the jail health service may not be appropriate. 3. Consider a procedure that requires the advanced level clinicians to refer any patient whose disease is poorly controlled and does not improve at the follow-up visit to the Medical Director. This should enable the Medical Director to be involved with the sickest patients. 4. Insure that the first database visit occurs no later than Day 30 after intake for patients who are well controlled and significantly earlier for patients who are less well controlled.
11. Dental Care Compliance Status: Substantial compliance.
Findings The dental program which has been handicapped by the availability of resources is now more appropriately staffed. In our review of the dental program at the holding center, it did appear that restorations as well as extractions and assessments are being provided and generally they are being provided timely. There is still one day a week when there is no dental assistant, but that day is utilized to conduct assessments. It appears that there are now adequate resources to insure timely services.
Recommendations 1. Given the new dental schedule, continue to monitor the timeliness of access to analgesia for patients who request assistance with dental pain. 2. Continue to monitor the ratio of restorations to extractions. 3. The QI committee, including its infection control nurse, should monitor the rate of postextraction infections. 4. The dental program should continue to report to the infection control coordinator sterilization monitoring data on a quarterly basis.
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12. Care for Pregnant Prisoners Compliance Status: Substantial compliance.
Findings Since the care provided by the Erie County Medical Center OB/GYN program is consistent with American College of Obstetrics and Gynecology Guidelines and since the records of these encounters are now available in the Erie County records, this program is now in substantial compliance.
Recommendation None.
13. Dietary Allowances and Food Service Compliance Status: Partial compliance.
Findings There is still no access to a dietitian or nutritionist services. It is unclear to me why in Erie County with a population of several hundred thousand it is impossible to develop a small parttime contract with an available dietitian. Problems do arise with patients with special needs and those problems should have the input from a dietitian. Neither of the food service managers is credentialed in the nutritionist field and therefore they cannot be expected to know how to respond to such demands. I am aware that the department is again looking into the possibility of moving to a heart-healthy diet and I would strongly encourage that because it dramatically reduces the work required to maintain a substantial number of special diets that are disease based. We are aware that the Medical Director has continued to reduce the number of previously ordered preference diets.
Recommendations 1. Acquire the services of a part-time dietician consultant. 2. Consider adopting a heart-healthy master menu.
14. Health Screening of Food Service Workers Compliance Status: Substantial compliance.
Findings As indicated previously, food service workers at the holding center are not involved in food preparation. They are only involved in serving and cleaning. At the correctional facility, food service workers are involved in food preparation. In both facilities, there is a daily effort to screen out individuals who could potentially spread foodborne illness. This effort consists of insuring that workers are not suffering from any gastrointestinal disease and have no open lesions on their arms or hands. In both facilities, there is a prior clearance that is performed that
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insures that all eligible workers are physically and mentally capable of working in the assigned area. The current methods for screening are satisfactory.
Recommendation None.
15. Treatment and Management of Communicable Diseases Compliance Status: Partial compliance.
Findings There is a new Infection Control Coordinator and she is well experienced, having had the same responsibilities in hospitals. However, at the time of this visit, she has not yet organized the program to be able to present data to the quality improvement committee or to me. Due to the absence of data with regard to TB control, MRSA, reportable diseases, sexually transmitted diseases and any outbreaks, this area remains in partial compliance. I would expect that this finding should change at the time of our next visit.
Recommendations 1. Although the infection control nurse should collect data monthly, she should summarize it on a quarterly basis for the quality improvement committee. Particular areas to be reported on include TB control and prevention, the tracking and trending of skin infections including both presumptive and culture confirmed MRSA, the incidence of sexually transmitted diseases, the occurrence of reportable diseases along with dental post-op infections and a dental sterilization monitoring report.
16. Sexual Abuse Compliance Status: Substantial compliance.
Findings The program has insured that both medical and custody staff are trained in this area and in addition, in the one record we reviewed, the patient was sent offsite for an assessment by a credentialed sexual abuse nurse examiner. There was no documentation that the patient was afforded a rape crisis counselor. This service should also be offered. It is now required that all sexual abuse in correctional facilities must be officially reported. It is important that inmates be aware of this requirement; they can be made aware through a notice in the inmate handbook as well as signage in the institution, most especially in the medical clinic area. We also encouraged the Health Service Administrator to meet with the Erie County Medical Center leadership team in order to make them aware of the requirements under law with regard to not only an examination by a sexual abuse nurse examiner or forensic examiner but also the provision of a sexual abuse crisis counselor. Recommendation
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1. The Health Service Administrator should meet with the ECMC leadership to inform that of the requirements under federal legislation with regard to services required through the Prison Rape Elimination Act.
17. Quality Management Compliance Status: Partial compliance.
Findings There continues to be significant amount of work in this area. In fact, the program is now providing two quality improvement meetings per month; the first meeting is one in which data collected is reviewed and commented on and the second meeting is supposed to include a review of infection control data and any analysis of the prior data reviewed and any proposed changes to policy or procedure. The activities that formed much of the work by the quality improvement committee in the last six months included a review of professional performance with regard to the approach to diabetes, a review of the sick call process emphasizing timeliness and this included an analysis of outliers, a review of the medication administration process, looking especially at professional performance and in fact, this in all likelihood contributed to the improvement as documented in my assessment, going from partial to substantial compliance. There continue to be a review of the timeliness of receipt of medications compared to the time of order. There was also a review of the completeness of the intake process as well as the timeliness of the intake process and there continues to be a review and analysis of medication errors. As I have indicated previously, in this report there are several areas that I have recommended quality improvement monitoring, including sick call or access to care, emergency care, follow-up care, chronic care and the medical record program as well as the dental program. This review, analysis and implementation of changes should facilitate the development of substantial compliance in all areas.
Recommendations 1. Review the earlier sections of this report and insure that some activities are implemented as part of the QI program between now and the next report.
18. Review of Clinical Care by Responsible Physician Compliance Status: Substantial compliance.
Findings I have reviewed not only the forms but also the specific content of reviews with counseling by the Medical Director of his clinicians and am impressed with his efforts to use the process in a constructive manner. I am also impressed with the fact that when the performance is below threshold, he repeats the review more frequently so as to facilitate more timely improvement. This puts this section into substantial compliance. He is also assuring me that he is, when
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reviewing performance, selecting records that tend to be of patients who are more complex or high risk or more poorly controlled. Recommendations None.
III. Protection from Harm
E. Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Substantial compliance. Findings Both the policy and the training are consistent with an assessment of substantial compliance.
Recommendation None.
I. Training of Medical and Mental Health Staff
Compliance Status: Substantial compliance.
Findings Both the medical and mental health staff have completed their training with regard to the handling of sexual abuse. Recommendation None.
J. Suicide Prevention Program
e. Privacy
Compliance Status: Substantial compliance. Findings See number 3 under Medical Care section.
Recommendation None. f. Assessment of Inmates in Detoxification Compliance Status: Substantial compliance.
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Findings The problem of initiating CIWA screens in the detox area seems to have been resolved. With the move into the new housing unit this, of course, will facilitate improved compliance.
Recommendation 1. Monitor the detoxification program by the quality improvement program.
D. Training of Officer Staff with Regard to Suicide Prevention Training
Compliance Status: Substantial compliance.
Findings See number 4 under Medical Care section.
3. Detoxification Training Program
Compliance Status: Substantial compliance.
Findings All of the required medical staff have had this training.
Recommendation None.

RS/kh

Respectfully submitted,
R. Shansky, MD Medical Monitor

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Fifth Monitoring Report US Department of Justice v. Erie County New York
This report reviews the status of medical program conditions at the time of the Fifth Monitoring visit, which took place from November 18 through November 22, 2013.
B. Medical Care
1. Policies and Procedures Compliance Status: Substantial compliance drafting of policies; substantial compliance implementation of policies.
Findings Although the implementation of some policies requires improvement, in general the implementation is far enough along such that it is important to recognize these advances. With the departure of the Medical Director who has been with the program since the beginning of this litigation, we are concerned that the progress thus far achieved be sustained. There is a very strong leadership team remaining in the medical program, including the Director of Health Services as well as the Director of Nursing Services. What they are unable to provide, however, is the clinical oversight of the remaining clinicians. We are aware that the County has contracted with a vendor to be able to present candidates to be hired for the Medical Director position. We hope that this is accomplished expeditiously.
The main areas for improvement in implementation will be detailed later in this report. However, they include the chronic care program and the scheduled offsite service program predominantly.
Recommendation 1. Continue to provide feedback to the clinicians with respect to their performance in both the chronic disease area and the scheduled offsite service area.
2. Medical Autonomy Compliance Status: Substantial compliance.
Findings This area remains in substantial compliance, because for the period reviewed we were well aware that custody and health care leadership worked well together. This does not mean that there were not differences, but it does mean that the differences were resolved in a professional and timely manner. Again, we are concerned that the new Medical Director will have to establish a working relationship with custody leadership. This of course will take time. We have been

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impressed with the professionalism of the custody leadership and expect that this will be accomplished in a reasonable period of time.
Recommendation: None.
3. Privacy Compliance Status: Substantial compliance.
Findings The new space for the intake process is now fully utilized. It is well designed for both privacy and efficiency of processing. We reviewed the additional exam room to be created at the Erie County Correctional Facility and although it is not yet furnished and does not yet have privacy curtains, we appreciate the potential and the plans to create a professional setting which affords patient privacy. We did not, on this visit, review the exam rooms in the holding center; however, we do expect to visit them in our next visit and hope we will observe appropriate professional sanitation procedures.
Recommendation 1. Insure privacy is afforded patients when the new exam room is utilized within the Erie County Correctional Facility.
4. Training of Custody Staff This area has been in compliance for 18 months.
5. Management of Health Records Compliance Status: Partial Compliance.
Findings There continues to be improvement in this area in several ways. First of all, the backlog for filing for the active records was within the target timeline of no more than 48 hours. In general, when we reviewed records, we found that not only were the necessary documents available but also they were generally filed in the appropriate sequence and in the appropriate section. On the other hand, we did find that the inactive files were not up to date. In fact, documents in the “to be filed” area went back almost to the beginning of October. We were informed that a new position will be filled and the person’s duties will include filing documents in the inactive records. We would expect that when we return in May this problem of a filing backlog for documents to be filed in inactive records will have been resolved. Finally, we must commend the County for its creation of a large, professionally designed storage area for the inactive records. There is a modern set of rolling files which enable the clerical staff accessing records to access the space between the numbers to be selected from the shelving in an efficient manner. Ultimately, the
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plans for an electronic record will greatly facilitate the accessibility of both active and inactive records. We understand that the RFP process has progressed to such an extent that there are now two companies which are finalists for providing the electronic record software. We also understand that there will be site visits to each of these potential vendors within the next month and then a selection shortly thereafter. We remain ready to assist in the implementation in any way possible.
The medical staff continue to utilize the O for outcomes, F for follow-up, I for infection control issues, R for registrations and M for medical management methodology. This approach is designed to facilitate continuity of care. We would also note that a progress note form has been designed that can also serve as a chronic care follow-up form. We have never seen this done in any other facility and hope it works out well. We have reviewed the chronic disease initial visit form and in reviewing records can report that although the forms are utilized, our review of the professional performance demonstrated that there remain opportunities for improvement.
Recommendations 1. Fill the clerical position, which should facilitate eliminating the backlog in filing documents for inactive records. 2. Sustain the progress with regard to selecting, contracting, training of staff and implementing an electronic record. 3. Continue to make available for medical and mental health chronic care visits a copy of the active medication administration record and any monitoring (blood pressure, fingerstick) data.
6. Medication Administration Compliance Status: Substantial compliance.
Findings In both the morning and evening medication administration that we observed, we attended medications passed in both linear units and in podular units. We continued to find that the nurses consistently performed both professionally and efficiently. Their interaction with the inmates was also appropriate. They continued to utilize a process with the loose-leaf binders such that at the beginning of the medication administration process, the medical administration records were on the left side of the binder and as the meds were administered they were moved to the center of the binder, and this enabled the nurses to determine whether all the patients who should have presented themselves for the medication administration were in fact presenting themselves. We did identify two concerns. One was with regard to the consistency of the nurse referring patients to the ordering clinician when patients refused three days in a row. We found a few cases where we could not, in reviewing the records, identify a progress note through which counseling by the clinician was documented. Additionally, we identified a concern with regard to the manner in
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which nurses were documenting patient refusals. Most of the nurses documented refusals by initialing the appropriate space and circling their initials. One nurse wrote in, “REF.” It is our understanding that the latter nurse is incorrect and not performing in a manner consistent with nursing requirements. There was also some confusion with regard to whether a nurse is required to record a refusal when patients ask not to receive an as needed medication. This area also needs to be clarified.
Finally, we also checked at the window outside where patients receive their property and found that the appropriate form was available. This form provides a phone number to a pharmacy, which would enable the patients to access a prescription in the community. This form also contains information regarding detoxification treatment as well as medical record requests and tuberculosis testing.
Recommendations 1. The nursing QI program should continue to monitor the performance of nurses during the medication process, specifically looking at patients who refuse their medications three days in a row and whether or not a referral and counseling has taken place as documented in the medical record. 2. Nursing should clarify the correct manner of documenting refusals on the medication administration records. 3. Nursing program should clarify what is the appropriate method of documenting an as needed medicine not being needed as described by the patient. 4. The method of MAR selection for these reviews should include patients on multiple medications, and when selecting records to identify refusals, it is most useful to select medication administration records of patients on psychotropic medications.
7. Access to Care Compliance Status: Partial compliance.
Findings We were chagrined to find that a system used to insure that every sick call box is opened daily had been abandoned at the holding center. Our understanding is that the person who performed that task left the program but no one else continued to do it. This is not a personal duty; it is a process duty in order to insure that every location has daily access to sick call. I was informed that there will be a replacement procedure implemented shortly. It is our view that if staff understood why this was being done it would not have been discontinued unless an alternative procedure that accomplished the same result was implemented in its place. We also learned that patients’ slips that address so called administrative issues as opposed to symptom requests are all handled together. It is our view that since the policy requires a face-to-face assessment with regard to symptom requests exclusively, it would be valuable to separate these two types of
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requests in order to determine that the timeliness targets for symptoms assessments by nurses are in fact being achieved. The data to be monitored is the percent of symptom kites that are seen by a nurse for a face-to-face assessment in an appropriate space within 48 hours of having received the symptom request. The goal is at least 80% of those requests are seen within 48 hours. For those that are not seen within 48 hours, the QI program should study the causes for the delay. The goal is to improve potentially to 90% seen within two days. The other goal is to make sure that those not seen within 48 hours are seen within one day after 48 hours. This is the challenge. In addition, we reviewed nursing professional performance at both sites and there continue to be opportunities for improvement. This is common in most facilities. We know that the more review and feedback directly with the nurses occurs, the more the performance improves.
Recommendations 1. Separate the symptom kites from the administrative kites and monitor the timeliness of face-to-face assessment from the time of receipt of the symptom kites. 2. For those symptom kites not seen within 48 hours, determine the contributing factors in order to target improvement strategies that could mitigate these factors. 3. If possible, designate a nurse as a nurse educator and have her review the performance of nurses, both during sick call and urgent care, and provide feedback to the nurses in a constructive manner. This should be done at both facilities. All these recommendations are directed to the quality improvement program.
8. Emergency Care Compliance Status: Substantial compliance.
Findings We reviewed a series of records at both institutions in order to determine whether the immediate response was appropriate, whether the assessment and disposition were appropriate and whether, where continuity of care was required, that was appropriate. In fact, we found that consistently at both facilities, the assessment was appropriate; where indicated, patients were sent out timely and when patients returned, the necessary paperwork was available; and patients were seen by their primary care clinician, usually within the next day. The clinician adequately addressed the reason for the send out and facilitated follow-up care where indicated. This is the basis for the move to substantial compliance. Our only concern was that there was not always assiduousness demonstrated to us when we reviewed the urgent care log. In discussing the urgent care system, we also learned that there was not yet a way for the medical program to insure that when a call was made to the medical area by custody staff, a consistent nurse was responding over the phone. We were informed that, especially at the holding center, nurses sometimes get pulled away from the phone that custody accesses. Our suggestion is a wireless system that enables a nurse to move about but retain the phone number provided to custody. That person should always also
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maintain the log so that she can document the name of the patient and presenting complaint right after the call has been made.
Recommendations 1. Instruct the nursing staff on the importance of assiduously maintaining the urgent care log, which must include patient identifiers, date and time of call, presenting complaint and disposition. 2. Develop a system that insures that on each shift custody needs to access only a single number and will always reach the appropriate nurse who will also have the responsibility of maintaining the urgent care log. 3. The QI program should once a quarter monitor both the process aspects of urgent care services as well as the professional performance aspects, which includes both nursing and clinician performance.
9. Follow-Up Care Compliance Status: Partial compliance.
Findings We continue, for this item, to refer to follow-up care after scheduled offsite services. This includes both specialty consults as well as procedures. Our reviews at both facilities demonstrated that specialty services were consistently accessible timely. For routine services, this means within 30 days. However, especially at the correctional facility, we found a tendency for nursing to refer to the advanced level clinicians for a record review of patients who had returned to the facility. At the ECCF holding center, in none of the cases we reviewed did this result in a face-to-face encounter when this happened. Less frequently at the holding center this also occurred. When a clinician reviews a record post-encounter the record review may edify the clinician; it is generally of minimal benefit to the patient. The patient gets to understand what was found and what the plan is only when the clinician meets with the patient and discusses these items. This needs to happen consistently without exception. In general, we did find that patients at the correctional facility as well as at the holding center did return through a nurse. It was only the clinician follow-up that was problematic. Thus, there has been some progress.
Recommendations 1. For consultations and procedures, the exceptions being physical therapy or some other ongoing treatment, follow up by a clinician with a face-to-face encounter must be documented. 2. That encounter must indicate that the findings and the plan were discussed with the patient. This process should be reviewed by the QI program at least twice before our next visit.
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10. Chronic Disease Compliance Status: Partial compliance.
Findings There has been some progress since our last review. There is now an initial chronic disease encounter form which was implemented within the last few months. Although the use of this form is a step forward, we have identified some performance issues with regard to the utilization of the form. Specifically, we identified records with only a partial history taken. We also identified records where despite the patient having multiple problems, only some of those problems were addressed. We also found that assessment of degree of control was not always consistent with the defined definitions taught by Erie County to its clinicians. And finally, we found some cases where the frequency of the follow up was not consistent with what the degree of control would have indicated. We are not surprised that immediately post implementation of new forms there are some problems in performance. However, if there is consistent constructive feedback to the clinicians, we have every reason to believe that the performance will improve. However, we reiterate our concern about the loss of the Medical Director and the ability to provide this type of feedback. We understand there is an interim plan that is being put in place but we have no sense as to whether the physician service contracted will effectively review and provide feedback to the clinicians. The problem of delayed initial chronic care visit has been somewhat mitigated by the strategy to utilize the initial chronic care visit form in lieu of the history and physical form. This insures that an initial chronic care visit occurs at least two weeks prior to the former 30-day initial visit.
Recommendations 1. Fill the Medical Director position as quickly as possible. 2. Find a clinician with the appropriate skills to provide constructive feedback to the clinicians with regard to their performance. 3. Find a clinician in the interim to whom more complex chronic disease patients, particularly those in repeated poor control, can be referred.
11. Dental Care Compliance Status: Substantial compliance.
Findings The dental program, whose resources were increased prior to our last visit, continues to provide timely access to services. Patients are generally seen within a few days of submitting their request for services. However, we have concerns with regard to clinician performance. Two of the three dentists demonstrated performance where the ratios of restorations to extractions were almost 1:1. For both of them they were slightly under that. However, for one of the dentists, the ratio of restorations to extractions was 1:8. This is difficult to reconcile. We believe the
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administrator should discuss with his dentists the fact that these ratios are being monitored and that the expectation is that adequate dentition requires an effort at restoration rather than immediate extraction.
Recommendations 1. Continue to monitor and report to the QI committee the ratio of restorations to extractions. 2. The QI committee, including its infection control nurse, should monitor the rate of postextraction infections, thus requiring clinicians to report to the infection control nurse all post-extraction infections. 3. The dental program should continue to report to the infection control coordinator sterilization monitoring data on a quarterly basis.
12. Care for Pregnant Prisoners Compliance Status: conditional substantial compliance.*
Findings There were only four records for us to review, but in one of the four records, the patient arrived the first week of October and the first prenatal visit was unacceptably delayed. Since then, Erie County has adopted a policy that requires the initial history and physical on pregnant females to be performed within the first seven days of arrival. The policy also requires the first prenatal visit to occur within the first 14 days. In addition, we found that with the switch to a new obstetric service, namely Women and Children’s Hospital, the success achieved in receiving the necessary prenatal encounter progress notes from ECMC has not been sustained. However, since the monitoring visit, the leadership of the health care program reached an agreement with Women and Children’s Hospital, which will provide critical prenatal data to the jail program for each prenatal visit. What is required are the necessary prenatal progress notes which provide such important data as blood pressure, weight, fetal heart tones, abdominal circumference measurements, urinalysis data as well as complete blood count data. Since this area was in substantial compliance previously and there appears to be a good faith commitment to rectifying these problems, we have created the conditional compliance status as described earlier.
Recommendation 1. Insure that for all pregnant females the history and physical occurs no later than by day 7 and the initial obstetric prenatal exam occurs no later than day 14. 2. The QI program should track and report on the timeliness of both the services for pregnant females.
* If during the Sixth monitoring visit the commitments to initial prenatal visits within the first few weeks, as well as prenatal visit data are verified, the assessment stands as is. If either commitment is not verified, the compliance status for both the Fifth and Sixth visits will be partial compliance.
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3. The QI program should also track the availability of progress notes from the prenatal obstetrician.
13. Dietary Allowances and Food Service Compliance Status: Partial compliance.
Findings We are encouraged that a dietician is about to be hired on a part-time basis on contract. We understand her responsibilities include analyzing the nutritional content of the current master menu as well as proposing a heart healthy master menu along with a cost analysis. As we understand, these tasks are to be accomplished by April so that they should be available by the time of our next visit.
Recommendations 1. Proceed with the dietician contract and make available to us by the time of our next visit the work product.
14. Health Screening of Food Service Workers This area has been in compliance for 18 months.
15. Treatment and Management of Communicable Diseases Compliance Status: Partial compliance.
We discussed with the infection control nurse the duties of that role. As part of that discussion, we indicated the need to implement a procedure where all clinicians who identified and treated a case of presumptive MRSA are required to immediately notify the infection control nurse. But culture proven and presumptively treated MRSA cases must be tracked monthly.
Recommendations 1. Establish a procedure to facilitate tracking these categories of MRSA monthly.
16. Sexual Abuse Compliance Status: Substantial compliance.
Findings It is our impression that this County was making every effort to have its leadership well educated on this issue. We were able to review three records of individuals who had alleged sexual abuse since our last review. In all three instances, the patients were handled appropriately. In one of the three, although paperwork was returned by the medical center to the jail, it did not include all of the required elements, most specifically the documentation of the physical exam assessment by
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the clinician. The leadership of the health care program must meet with the leadership of ECMC to make it clear what data and what documents are required to be returned to the jail.
Recommendation 1. This item should be monitored by the QI program for all alleged sexual abuse incidents.
17. Quality Management Compliance Status: Partial compliance.
Findings We identified that the minutes were created by a clerical staff person not well versed in quality improvement. Therefore, the minutes contained anecdotal summary statements as opposed to data. We were able to explain some of the basic requirements of QI minutes and most importantly that QI minutes be designed in a way that educated staff who are unable to attend the QI meeting on both what was learned and why any changes in processes or procedures are being designed. The design is to mitigate causes of subthreshold performance. We did appreciate that the QI program was looking at multiple major service areas, such as medication administration, sick call, urgent/emergent care, consultations, chronic care, dietary and infection control. However, as a person who did not attend the meeting, I did not learn much from these minutes. It is clearly important that the quality improvement program be utilized to facilitate the achievement of substantial compliance in the remaining areas. This would suggest some key areas be reviewed at least twice before our next visit.
Recommendations 1. The QI program should focus activities on chronic disease, scheduled offsite services and sick call, with each area reviewed at least twice prior to our next visit. 2. Other areas in this report in which we recommend quality improvement activities should also be addressed at least once prior to our next visit. 3. The person assigned to create the minutes must be knowledgeable in quality improvement philosophy and methodology and therefore be capable of creating minutes which will be educational for the line staff who are not able to attend the QI meetings.
18. Review of Clinical Care by Responsible Physician Compliance Status: Substantial compliance.
Findings Again, I have been provided with the actual quality of care review forms for each of the clinicians and have been impressed with the accuracy and candor of the Medical Director in identifying and providing instruction for the clinicians with regard to their deficiencies. However, I am concerned that with the departure of the Medical Director this process will be
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continued. I am especially concerned that the interim strategy, which includes at most a day and a half per week onsite by two clinicians who share the day and a half, will be adequate to provide this review, particularly with regard to one clinician whose performance has been identified as more problematic and whose work will have to be reviewed at least monthly if not more frequently.
Recommendations 1. The transitional Medical Director contracted services should include at least quarterly reviews of the clinical performance of clinicians so as to facilitate performance improvement.
III. Protection from Harm
E. Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Substantial compliance.
Findings Both the policy and the training are consistent with an assessment of substantial compliance.
Recommendation None.
I. Training of Medical and Mental Health Staff
Compliance Status: Substantial compliance.
Findings Both the medical and mental health staff have completed their training with regard to the handling of sexual abuse. The percent trained is well above 90%.
Recommendation None.
J. Suicide Prevention Program
e. Privacy Compliance Status: Substantial compliance.
Findings See number 3 under Medical Care section.
Recommendation None. 11

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f. Assessment of Inmates in Detoxification Compliance Status: Substantial compliance.
Findings The detoxification unit is now in a brand new, well-designed infirmary housing and the ability of the nursing staff to perform their assessment screens has been enhanced.
Recommendation 1. The QI program should continue to monitor the compliance of the nursing staff in performing the CIWA assessments.
D. Training of Officer Staff with Regard to Suicide Prevention Training
Compliance Status: Substantial compliance.
Findings This area remains in substantial compliance. All who require training have received it.
3. Detoxification Training Program Compliance Status: Substantial compliance.
Findings All of the required medical staff have had this training.
Recommendation None.

RS/kh

Respectfully submitted,
R. Shansky, MD Medical Monitor

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 Case 1:09-cv-00849-WMS-JJM Document 271 Filed 02/19/15 Page 1 of 13
Sixth Monitoring Report US Department of Justice v. Erie County New York
This report reviews the status of medical program conditions at the time of the Sixth Monitoring visit, which took place from May 13-17, 2014.
B. Medical Care
1. Policies and Procedures Compliance Status: Substantial compliance drafting of policies; substantial compliance implementation of policies.
Findings Under the leadership of the Director of Health Care Services and the Director of Nursing, policies remain in compliance and in most areas, implementation improved. There is no question that the absence of a Medical Director has had a negative impact on the program. This is particularly true with regard to professional performance improvement of the advanced level clinicians. We were encouraged to hear that a successor Medical Director has been identified and is able to begin employment in that role in early September 2014. We also learned that this candidate is interested in working on a fee-for-service basis before then by involving himself in the professional performance improvement program with the advanced level clinicians.
Recommendations 1. Please forward the curriculum vitae of the newly selected Medical Director to the medical monitor. 2. Develop a format for systematic and consistent review of professional performance of the advanced level clinicians by the Medical Director. The medical monitor would be happy to assist in the development of this performance review.
2. Medical Autonomy Compliance Status: Substantial compliance.
Findings Although there has been a vacuum in the clinical leadership of the medical program, the medical monitor has developed a degree of confidence in the professionalism of the custody leadership such that it is my belief that custody leadership will not exploit this vacuum by intervening in necessary medical decisions. It will be up to the new Medical Director to again establish credibility with custody leadership and it is our belief that this certainly is achievable.

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Recommendation: None.
3. Privacy Compliance Status: Substantial compliance.
Findings Besides the improved privacy provided by the new intake space, we learned that at the Alden Erie County Correctional Facility the room in the hallway will not be utilized. Rather, an additional exam room has been created in the clinic area. We are also aware that in the pod housing units there is an appropriately equipped examination room which affords the required privacy. Although there is no such room in the linear designed housing units, we are aware that patients are brought instead to the main clinic area where such privacy can be afforded.
Recommendation 1. Continue to provide appropriate privacy for any and all clinical assessments. This precludes any assessments being conducted cell-side.
4. Training of Custody Staff This area has been in compliance for 18 months.
5. Management of Health Records Compliance Status: Partial Compliance.
Findings Although the backlog in inactive records has been eliminated, the effort to integrate all medical and mental health documents into the same record has resulted in increased filing needed to be performed for the active records. At the time of this visit, the loose filing area contained between seven and eight inches of unfiled documents that extended as far back as mid-April. These documents were mostly mental health initiated documents. It is expected that the electronic health record will go live as early as September of this year and certainly before our next visit in November. This should eliminate any of the active record filing as well as inactive record filing within six months of the implementation of the electronic record. The medical monitor is familiar with the particular software chosen and has experience with it, finding it quite user friendly. Another positive aspect of this software is that it is easily customizable with regard to the data entry screens which can be customized by local staff or a consultant to the program. We look forward to this section coming into substantial compliance.
Recommendation
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1. Work closely with the IT integration vendor in order to design encounter forms that allow tracking and reporting on important data fields and also to insure that the transition from paper to an electronic record goes as smoothly as possible.
6. Medication Administration Compliance Status: Substantial compliance.
Findings Once again, we observed both morning and evening medication administration in both the linear housing units and in the pods. We were pleased to find that the nurses continue to perform both appropriately and professionally. We found that there was helpful participation by the correctional officers. We also found that there had been retraining of nurses such that there was consistency with regard to how they documented inmate refusals of specific medications. We also learned that there has been retraining with regard to the manner of documentation when as needed medications are felt by the patient not to be needed. Finally, we were particularly pleased with the nursing staff compliance with the policy requirement that when a patient refuses a medication for three consecutive medication passes they are referred to the ordering clinician. We observed several medication administration records were there were consecutive refusals and the patients had been referred to the clinicians. This was especially common with regard to the forensic clinicians. We were quite disappointed, however, with the response of the forensic clinicians who neither documented counseling nor made any effort to modify or revise the existing regimen. The purpose of the referral is for any clinician to explain the risks and/or benefits and to work out with the patient a regimen that is much less likely to be refused. There was no documentation that we saw that achieved these goals. We also believe that blank spaces that occur on medication administration records where the medicine is ordered at least daily should be treated as medication errors.
Recommendation 1. The quality improvement program should select MARs that reflect the work of a variety of nurses, especially for patients who are on multiple medications, multiple times per day. In reviewing these medication administration records, a calculation should be performed of the error rate, meaning the rate of blank spaces versus the total number of expected doses administered. This error rate should not only be used to improve performance, but it also should be reported in the quality improvement minutes at least quarterly.
7. Access to Care Compliance Status: Partial compliance.
Findings
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We were pleased to observe that the logging of medical sick call requests is occurring and these requests have been separated into symptom describing requests and other so-called administrative or informational requests. However, the manner in which they were recorded does not easily allow for a simple observation of the timeframe between request received and face-toface assessment having occurred. We believe it will be more useful to have a logbook that lists patient identifiers, date received, nature of the complaint, date of assessment and disposition. This would allow to visually determine the average timeframe in which these assessments occur simply by glancing at the two columns, date received and date of assessment,. Finally, with regard to the disposition, we attempted to do a study looking at the records of patients in which the disposition described referral to an advanced level provider. The first five such records we pulled contained zero notes by an advanced level clinician. We learned that a policy had been implemented in which, when the nurses refer the patients to the advanced level clinicians, these advanced level clinicians had a choice of reviewing the record alone or also seeing the patient. In none of the records we reviewed was the patient seen face-to-face for an assessment by an advanced level clinician. Therefore, we are strongly recommending that the policy with regard to referral be changed. The discretion by an advanced level clinician of only reviewing the record should be eliminated. We have never heard of an instance where a patient learned anything when their record had been reviewed by any clinician. The choices the nurses should have is to either discuss the case with the clinician at the time the patient is there or refer the patient to the clinician for a mandatory face-to-face assessment by the clinician. We also discussed with the Director of Health Services that it is very important that no clinicians are allowed to conserve personal energy by manipulating the list of patients they are to see in such a way that their workload is reduced.
Recommendations 1. Set up a logbook that allows visual tracking of symptom complaints for time of receipt, presenting complaint, time of nurse assessment as well as disposition. 2. The QI program should present data from these logbooks with regard to average timeframe between receipt and nurse assessment. 3. Eliminate the advanced level provider review and make all referrals to an advanced level provider mandatory, face-to-face assessments where they can help understand the patient’s problems and educate their patient. 4. The QI program should monitor the average timeframe for advanced level clinician faceto-face assessment after nurse referral, with a threshold of no more than five business days.
8. Emergency Care Compliance Status: Substantial compliance.
Findings
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We reviewed seven records of patients who were sent offsite on an emergency basis. In general, these patients were assessed timely prior to send out, an advanced level clinician was notified and recommended the patient be sent out, and when the patient returned the appropriate offsite documents were available and the patients were seen by a nurse upon return and by an advanced level clinician within a few days after return. In most of those follow-up visits, the findings and plan were discussed. However, we did find an occasional record where there was no documentation of contact with an advanced level provider as well as an occasional record where the offsite service document was missing. We also found an occasional record where the nurse note on return was absent and an occasional record where the follow-up visit with the advanced level clinician either did not occur or did not include documentation of a discussion with the patient regarding the findings and plan. Because we did not identify a pattern to any of these individual errors, we still assessed this area as substantial compliance.
Recommendations 1. The QI program should be monitoring a set of emergency offsite visits and insuring that there is documentation of a discussion with an advanced level clinician prior to send out and that there is a nurse note upon return, as well as both the available documents from the offsite service and a timely follow up by an advanced level clinician at which there is documentation of a discussion regarding the findings and plan.
9. Follow-Up Care Compliance Status: Partial compliance.
Findings We looked at scheduled offsite services, that is consultations and procedures, both at Alden and at the holding center. In both facilities, we identified multiple records where there was a breakdown in either availability of offsite service documents or in a timely follow up by the clinician in which there was documentation of a discussion with the patient regarding findings and plan. There were records at both sites in which all of the required elements were present. However, between the two sites the rate of records where all of the elements in the offsite service process were successfully completed was less than 50%. Therefore, the assessment of partial compliance.
Recommendation 1. The QI program should monitor at each site a sample of patients sent offsite for scheduled offsite services. The monitoring should include the timeliness of the appointment, the presence of the offsite service report upon return and the follow-up visit with an advanced level clinician in which they document the findings and plan having been discussed with the patient. When there is breakdown in any of these steps, the QI
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program should assess the contributing factors and develop improvement strategies to mitigate the occurrence of these factors.
10. Chronic Disease Compliance Status: Partial compliance.
Findings In our last report we voiced concerns regarding the loss of the Medical Director and the ability of the program to therefore improve clinical performance. At this visit, with regard to chronic diseases, our concerns were realized. During this visit, we looked particularly at diabetes care and HIV care in order to determine whether problems we had identified in our prior visit had in fact been mitigated. In general, with some exceptions, we found that many of the prior stated performance issues have not been mitigated. The following is a list of those concerns.
We found patients for whom for the first visit, the initial baseline form was not utilized and as a result there was insufficient disease specific history. We also found records where only one of the chronic diseases was addressed and therefore the other chronic diseases appeared to have been ignored. We also found records where there was no assessment of degree of control, which ultimately determines the management approach. In the case of HIV disease, we found patients seen where at the initial visit there was no order for the viral load, although there was an order for the CD 4 count. The viral load is critical in order to determine viral activity. The CD 4 count may be within normal range, but if the viral load is significantly elevated, this may mean either that if the patient is on medications, resistance is possibly developing or in a patient not on medications, it is likely to indicate the need for initiating medications. With the absence of the viral load at the time the patient is sent to the HIV specialist, this may delay the ability of the HIV specialist to determine when treatment needs to be initiated. These types of problems hopefully will be easily addressed by the new Medical Director. If the program is able to develop a contract with the proposed Medical Director in the interim before he is to start as Medical Director, this could allow improvement in ALP performance over the next few months.
Recommendations 1. Send to the medical monitor the curriculum vitae of the proposed Medical Director, 2. Proceed with the administrative steps necessary to bring the proposed Medical Director on board in the interim to perform professional performance enhancement reviews. 3. The Director of Correctional Health Services should contact the medical monitor about designing a form to be utilized by the proposed Medical Director in performing the professional performance reviews.
11. Dental Care Compliance Status: Substantial compliance.
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Findings We were not able to interview the dentist during this visit and therefore we were not able to review the program as thoroughly as during our prior visits. However, when we reviewed the data on performance of restorations versus extractions, we observed that the prior problem of one dentist overwhelmingly performing extractions has been eliminated. We were informed that that dentist has been terminated. We believe that it is important for the quality improvement program to track date of receipt of symptomatic requests that reflect tooth pain and date of face-to-face encounter either with a nurse or with dental staff during which analgesia is provided. We also believe that tracking of dental pain in relationship to assessment by a dentist should also be tracked.
Recommendations 1. The QI program should track symptomatic requests that discuss tooth pain and date of initiation of analgesia. 2. The QI program should also track date of request received describing dental pain along with date of assessment by the dentist. These studies should be reported monthly and reviewed at the QI meeting quarterly.
12. Care for Pregnant Prisoners Compliance Status: Partial compliance.
Findings During our last monitoring visit, we assessed the compliance status as conditionally substantial compliance. We have downgraded the assessment to partial compliance because two of the five records reviewed lacked the necessary offsite service documents to allow for appropriate continuity of care onsite. We understand that there has been contact with the Women and Children’s Hospital administration regarding providing the necessary documents. However, the staff at ECHC and ECCF must persist in obtaining these critical documents. It may be that in addition to another meeting with the leadership of these offsite services that a letter from the Department of Health or Correctional Health Services be brought by an officer to the offsite service provider which indicates the officer must return with the required documentation in an envelope in order to facilitate continuity of care onsite and in order for the service to be completed, thus allowing for timely compensation.
Recommendations 1. Develop an administrative strategy that facilitates timely retrieval of the critical offsite service documents. 2. The QI program should continue to track timeliness of initial ALP assessment after determination of pregnancy as well as timeliness of offsite service obstetric visit from time of diagnosis.
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13. Dietary Allowances and Food Service Compliance Status: Partial compliance.
Findings We were impressed with the dietitian who has been hired on a part-time basis to guide the food services operations. We had an opportunity to talk with her and learned that she has been assessing whether there could be a transition to a heart-healthy diet. We were informed that at the ECCF there was a well-designed and equipped kitchen and therefore they could convert to such a diet. On the other hand, at the holding center, the kitchen, which was built with the building several decades ago, was only designed for potential population of 200 detainees. Therefore, the size of the kitchen does not currently allow for the type of food preparation for a heart-ealthy diet and rather requires the utilization of a significant amount of processed foods. This creates a challenge, particularly with regard to the salt content of the master menu diet at the holding center. It would be problematic to have one master menu at one facility and a significantly different master menu at the other facility. We also found that the number of detainees for whom both a diabetic diet and a cardiac diet were ordered was substantially less than what one would project for the holding center. This suggests that there is continued need to attempt to move to a heart-healthy master menu because accomplishing that goal would eliminate the need for special diets for diabetes and hypertension and thus increase the likelihood that detainees with these problems would receive an appropriate dietary regimen.
Recommendations 1. Bring in an appropriate consultant to determine whether the existing holding center kitchen can be expanded and equipped sufficiently to allow for a heart-healthy diet. 2. Provide the medical monitor with an analysis of the existing food served both at the ECCF and at ECHC so that the dietitian can determine how big a change moving to a heart health diet would cause.
14. Health Screening of Food Service Workers This area has been in compliance for 18 months.
15. Treatment and Management of Communicable Diseases Compliance Status: Partial compliance.
Findings The Director of Nursing, who has excellent prior experience, is currently functioning as the infection control nurse for both facilities. We discussed with her the infection control program in general and discussed in detail the TB surveillance program as well as the MRSA surveillance program. We also discussed data collection with regard to hepatitis A, B and C as well as HIV
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disease. We would like to review the TB control policy which we had reviewed several years previously. We also learned that the ability to track skin infections presumptively treated for MRSA has not yet been implemented. The implementation of the electronic medical record should facilitate notification by clinicians to the infection control coordinator when such presumptive treatment occurs. This can be done internally through the EMR flagging system (internal e-mail).
Recommendations 1. Establish a system to monitor both culture proven and presumptively treated MRSA cases on a monthly basis. 2. Report both categories of MRSA cases at the QI meeting on a quarterly basis.
16. Sexual Abuse Compliance Status: Partial compliance.
Findings When we reviewed the records of patients who had historically alleged sexual abuse, we found that the documentation from the offsite services did not even mention the performance of a forensic exam nor the provision of rape crisis counseling services. We understood that discussions between the leadership of correctional health services and the leadership of ECMC have occurred and yet line staff from the offsite services are still not always providing the necessary documentation. We strongly urge a letter be drafted coming from the Department of Health to ECMC staff that describes the federal requirement that documentation of such services, including prophylactic treatment for sexually transmitted diseases and counseling regarding pregnancy, be included in the offsite service documentation. This letter should be brought by an officer for each and every patient who is to be assessed at the hospital via a forensic exam.
Recommendation 1. The Department of Health should develop a letter to the ECMC staff that documents the requirement of correctional facilities to be able to demonstrate documentation of the occurrence of both a forensic exam and rape crisis counseling along with the provision of sexually transmitted disease treatment and pregnancy counseling where indicated. 2. The QI program should track the receipt of this documentation for each and every allegation.
17. Quality Management Compliance Status: Partial compliance.
Findings
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In the absence of a Quality Improvement Coordinator, the Director of Nursing services is also attempting to perform these duties. We believe this is hindering the development of this program. Additionally, the Director of Nursing, in the absence of an assistant Director of Nursing for the ECCF, is also providing direct oversight to both facilities. Clearly, an Assistant Director of Nursing for the ECCF is also required. We reviewed the minutes of the quality improvement committee meetings and identified that the minutes read more like staff meeting minutes than QI meeting minutes in which data is presented and analyzed and, where indicated, improvement strategies are developed. We could not find these activities in the quality improvement committee minutes. On the other hand, we were shown some important studies performed.
1. A study of the timeliness of receipt by the patient of critical forensic medications. We found that 40 of 48 forensic medications labeled as critical were received within the forensic mental health definition of timeliness, that is within 24 hours. Eight patients received their medication later than 24 hours.
2. We also found a study of the timeliness of receipt of routine medications utilizing a definition of 48 hours. Thirty-seven of 44 patients received their medical medications within 48 hours. Seven patients had their medications delayed greater than 48 hours. Ten patients refused their medications at the time of receipt and all of these were referred to the advanced level provider.
3. There was also a completeness study of the elements during the intake process, such as the medical screen, patient consent, vital signs and detox referral where indicated along with medical classification, alerts and suicide screen.
These studies are important and helpful. However, in the recommendation section of this report we have also listed studies for the quality improvement program to perform dealing with care of the pregnant patients, sexual abuse cases, chronic disease cases, dental services, scheduled offsite services, unscheduled offsite services, and others. We believe it is not possible to perform all of these reviews without the addition of a Quality Management Coordinator.
Recommendations 1. Add both a Quality Management Coordinator and the Assistant Director of Nursing positions as soon as possible. 2. Work with the IT consultant regarding the ability to track critical elements through the EMR by re-customizing encounter forms where indicated. 3. Perform the studies referred to under the recommendations section consistent with the recommendations we have made. 4. Revisit the definitions for timeframe of receipt for critical medications for both medical medications and forensic medications. For medical medications that are critical, such as anticoagulants, anti-seizure meds and HIV medications, the goal is prevent dose discontinuity by insuring that the dose is received in a timeframe that mitigates the
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probability of dose discontinuity. That is almost invariably in a timeframe significantly less than 24 hours. For routine medical medications, the goal should be receipt within 24 hours. Forensic medications may have a different timeframe and different targets. This should be worked out with the leadership of forensic medical services.
18. Review of Clinical Care by Responsible Physician Compliance Status: Non-compliance.
Findings Since the departure of the Medical Director there has been no review of clinical care by a responsible physician. Thus the assessment of non-compliance. We are hopeful that the Director of Correctional Health Services can work with the medical monitor to design a system for professional review. We are also hopeful that between receipt of this report and the beginning of September this review can be initiated.
Recommendations 1. The Director of Clinical Services should initiated communication with the medical monitor in order to develop a systematic review of professional performance. 2. The Director of Correctional Health Services should contact a physician to perform this service.
III. Protection from Harm
E. Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Substantial compliance.
Findings Both the policy and the training are consistent with an assessment of substantial compliance.
Recommendation None.
I. Training of Medical and Mental Health Staff
Compliance Status: Substantial compliance.
Findings Both the medical and mental health staff have completed their training with regard to the handling of sexual abuse. The percent trained is well above 90%.
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Recommendation None.
J. Suicide Prevention Program
e. Privacy Compliance Status: Substantial compliance.
Findings See number 3 under Medical Care section.
Recommendation None.
f. Assessment of Inmates in Detoxification Compliance Status: Substantial compliance.
Findings The detoxification unit continues to function as a well-designed program.
Recommendation 1. The QI program should continue to monitor the compliance of the nursing staff in performing the CIWA assessments.
D. Training of Officer Staff with Regard to Suicide Prevention Training Compliance Status: Substantial compliance.
Findings This area remains in substantial compliance and has achieved sustained compliance.
3. Detoxification Training Program Compliance Status: Sustained substantial compliance.
Findings All of the required medical staff have had this training.
Recommendation None.
Summary of Findings
Although when one reviews the section headings and the compliance status assessed one sees, if anything, in a few categories there have been some setbacks. However, within the partial compliance category we have observed improvement in some sections, particularly scheduled offsite services and chronic diseases as well as access to care and the quality improvement
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program among others. The method of assessment, choosing one of three statuses, does not allow for the description of the progress other than in the findings section. We continue to be impressed by the efforts by both the Department of Health and the Department of Corrections to do what is necessary in order to achieve substantial compliance. We are particularly impressed with the work by the Director of Correctional Health Services and the Director of Nursing, without whose work the progress that we observed would not have been observed. This was accomplished despite the loss of the Medical Director. We would hope that with the hiring of a new Medical Director as well as the implementation of an electronic record that we will see significant improvements at the time of our next visit. We continue to encourage the leadership of the medical program to utilize our services whenever they deem appropriate. We look forward to substantial progress at the time of our next visit.

RS/kh

Respectfully submitted,
R. Shansky, MD Medical Monitor

13

 
 Case 1:09-cv-00849-WMS-JJM Document 272 Filed 02/19/15 Page 1 of 12
Seventh Monitoring Report US Department of Justice v. Erie County New York
This report reviews the status of medical program conditions at the time of the Seventh Monitoring visit, which took place from November 17-21, 2014. This particular review was affected by a major snowstorm which fell heavily on southern Buffalo and prevented the team from accessing the Erie County Correctional Facility. Additionally, the storm created such disruptions to traffic flow that both correctional officers and health care staff found it difficult if not impossible to get to the facilities. Downtown Buffalo, which is where the Erie County Holding Center is located, did not have nearly as much snow, probably an accumulation of about 6-8 inches during the week. We were able to review all of the elements of the program at the Holding Center (except for medication administration) despite not being able to go to the Correctional Facility. The County staff were remarkably accommodating in assisting us through the process despite the multiple emergencies to which they had to respond. We are greatly appreciative of the efforts made by the Erie County custody and health care staff.
The major area affected by the weather in terms of my review was medication administration, which because of staff shortages due to the weather resulted in only emergency and critical medications being administered. The section related to medication administration will be described at that time.
B. Medical Care
1. Policies and Procedures Compliance Status: Provisionally substantial compliance pending receipt and acceptance of modified policies.
Findings The Director of Health Care Services informed me that there have been revisions to some of the policies and procedures within the past six months. These revisions are to be signed by the Commissioner of Health and the custody leadership. I was not able to be provided access to these changed policies and procedures; however, I will assess the compliance status as provisionally substantial compliance pending receipt of the modified policies and procedures.
The Chief Medical Officer or Medical Director should also participate in the promulgation and/or review of policies. Because this position has remained vacant there is no real opportunity for such participation. However, we will review the changes to the existing policies when we receive them.

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Recommendations 1. Please forward the modified policies and procedures to the medical monitor when they are available. 2. Begin to implement per our discussion nursing professional performance enhancement reviews to expand on what you have already initiated.
2. Medical Autonomy Compliance Status: Unable to assess.
Findings Although the assessment was substantial compliance at our last visit despite the fact that the CMO position had been vacant for six months, I was modifying the method I used to make the assessment. Ordinarily I utilize discussions with both custody leadership and the CMO as well as the Nursing Director and any record reviews that raise questions in order to assess medical autonomy. Since medical autonomy had been in substantial compliance based on a very constructive working relationship between the clinical leadership and the custody leadership, I had reason to believe that this principle would not be violated. However, in the face of vacant clinical leadership for 12 months I am not able to fully assess medical autonomy. Custody cannot develop a relationship when there is a vacancy in the key clinical leadership position. I am not assessing partial compliance because I have no data that supports moving the compliance status backward. I have been apprised of the recruitment efforts made by the Department of Health over the last year. Those efforts have been significant. There may be a variety of reasons why the position has remained vacant for 12 months. The one apparent reason is that the compensation package has not been perceived as acceptable to the selected candidates. This suggests to the monitor that the Department of Health must use more creative strategies than sticking with the civil service system or a fee for service dollar figure that equals salary plus benefits. In this monitor’s experience, correctional health programs can become fragile and deteriorate rapidly in the absence of dependable, constructive clinical leadership. This problem must be successfully addressed soon.
Recommendations 1. Fill the Medical Director position.
3. Privacy Compliance Status: Substantial compliance.
Findings Although we did not tour the areas where assessments are performed, we were assured that all assessments at both facilities are performed in an appropriate clinical space, both in the housing
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units and in the clinic areas. I have also been assured that this program does not perform cell-side assessments.
Recommendations 1. Continue to emphasize with staff the obligation to insure that all assessments are performed in a manner that affords appropriate privacy.
4. Training of Custody Staff This area has been in compliance for 18 months.
5. Management of Health Records Compliance Status: Partial Compliance.
Findings As a result of bureaucratic delays, the implementation of the electronic record has yet to begin. We do know that a contract has been signed and the vendor has been onsite and also remotely working with the correctional health staff in preparation for the implementation. These are encouraging signs. We also visited the record area and found the filing in both locations not excessively backlogged. During our record review, we did identify records, especially for people with multiple problems and incarcerated longer periods of time, to be somewhat disorganized, both with regard to the sections in which documents were filed and within a section with regard to correct chronologic order. We know these problems will be eliminated by the introduction of the electronic record. However, there remains a current obligation to maintain the records in such a way that they facilitate use by clinicians and thus facilitate better patient outcomes.
Recommendations 1. Have medical records staff focus on insuring appropriate record management, including filing, in those records which are thicker. 2. Continue the groundwork being laid with the selected vendor so that implementation goes as smoothly as possible.
6. Medication Administration Compliance Status: Unable to assess.
Findings As a result of the massive snowstorm resulting in up to eight feet of snow in some parts of south Buffalo, it became impossible to insure that both custody staff numbers and health care staff numbers were adequate for the medication administration. In light of this, critical medications were identified and these were administered, as far as we understand, on each and every day. However, without adequate staffing it became impossible to meet with routine medication
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administration demand. Additionally, we discussed the issue of both the nursing and the health care staff response to repeated missed or refused medications. The policy requires the nurses to notify the clinicians regarding three doses refused or missed in a row. This notification should include scheduling the patient with the clinician. At that visit, the clinician is obligated to query the patient as to why this is happening and based on the response, either develop a plan that is likely to facilitate adherence or decide that this particular medication is no longer indicated. In our last review, when clinicians were informed of the sequence of refusals or missed meds, nothing was changed. An internal study was performed by the Office of Health Services and a separate study was performed by forensic mental health. Both studies showed some improvement but the problem had not yet been resolved.
Recommendations 1. Continue working with both nursing staff and clinician staff about their responsibility to respond to a sequence of missed or refused medications. 2. The quality improvement program should select MARs that reflect the work of a variety of nurses, selecting MARs for patients who are on multiple medications multiple times per day. In reviewing these medication administration records a calculation should be performed of the error rate, meaning the rate of blank spaces versus the total number of expected doses administered. This error rate should not only be used to improve performance but it should also be reported in the quality improvement minutes at least quarterly.
7. Access to Care Compliance Status: Partial compliance.
Findings We have good news in that in our review of records of patients who have submitted sick call requests, they were almost always seen within one day. However, the infrastructure to monitor timeliness has still not been developed because the logbook that would allow visual tracking from fields that list date of receipt versus date of face-to-face assessment has not yet been set up. As indicated previously, this allows very rapid review of a substantial amount of data without a great deal of effort. We strongly encourage setting up this methodology. Additionally, we found the professional performance by the nurses inconsistent. Some performed well and others performed not as well. The problems we identified included inadequate history taking, inadequate assessment and inadequate plan. The types of inadequate history included not querying regarding all of the symptoms listed on the sick call slip but also not querying sufficiently with regard to specific types of symptoms. The problem of not reviewing with the patient the specific symptoms listed on the request stems from an urgent care type of approach in which the patient is seen without any records. Sick call is not an urgent care encounter because
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there is a written request from at least one day earlier and that request has to be addressed. This should be reviewed with all nurses who perform sick call.
Recommendations 1. Set up a log book that allows visual tracking of symptom complaints for date of receipt, presenting complaint, date of nurse assessment as well as disposition (referral to ALP or not). 2. The QI program should present data from these logbooks with regard to average timeframe between receipt of request and nurse face-to-face assessment. 3. The QI program should monitor the average timeframe from nurse referral to advanced level clinician with a timeframe target of no more than five business days for the referral to be accomplished.
8. Emergency Care Compliance Status: Substantial compliance.
Findings We again reviewed seven records of patients seen urgently and all except one were sent offsite on an emergency basis. Overall, these patients were assessed timely prior to send out. An advanced level provider was notified and recommended the patient be sent out. When the patient returned, the appropriate offsite documents were available and the patients were seen by a nurse and subsequently by an advanced level clinician within a few days after return. In most of these follow-up visits there was documentation of a discussion regarding the findings and plan. However, we continued to find a record in which there was no emergency room report, another record in which there was a missing nursing note upon return and one or two records in which either the follow-up visit did not occur or what should have been a follow-up visit that included a discussion of the findings and plan lacked that discussion. Because we did not find a pattern of any of these deficiencies, we continue to rate the service as being in substantial compliance. We continue to believe that the quality improvement program could identify explanations for why these things are happening and from that analysis could lead to improvement strategies which would eliminate the problems.
Recommendations 1. The QI program should be monitoring emergency offsite visits and insuring that the offsite service reports are retrieved timely, reviewed by the clinician and then discussed with the patient at a visit shortly after the emergency room trip.
9. Follow-Up Care Compliance Status: Partial compliance.
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Findings We reviewed eight records of scheduled offsite services, including a mixture of both consultations with specialists as well as procedures. We continued to find a mixture of quite common deficiencies; in fact, a majority of the eight records contained one or more of the following deficiencies. Those deficiencies included the absence on return of a note by a nurse, the absence of a follow-up discussion between an advanced level provider and the patient and in a few instances, the absence of the offsite service report. This area continues to be a problem and merits special attention by the QI program. We did not review records from the correctional facility which, in our previous visit, contained even a higher percentage of deficient records. We are concerned that not only has this service not progressed but in fact it may have taken a step backward.
Recommendations 1. The quality improvement program should monitor at each site a sample of patients sent offsite for scheduled offsite services. The monitoring should include the timeliness of the appointment, the presence of the offsite service report upon return and the follow-up visit with an advanced level clinician in which they document a discussion of the findings and plan with the patient. When there is a breakdown in any of these steps, the QI program should assess the contributing factors and develop improvement strategies to mitigate the occurrence of these factors.
10. Chronic Disease Compliance Status: Partial compliance.
Findings It is not surprising with a vacant Medical Director position for the last 12 months that we are not seeing substantial progress in the area of chronic disease management. This is an area that requires the Medical Director to review and work with the advanced level clinicians in order that their performance be improved. During this visit we looked at a variety of diseases, focusing as we had before on diabetes as well as HIV, asthma and seizure disorder. We also reviewed a record of a patient receiving anticoagulation. Of the 11 records we reviewed, four were of patients with diabetes. Among the records reviewed were patients with both type 1 and type 2 diabetes; however, it was common for the problem list and the notes not to reflect the type of diabetes that the clinician was addressing. Given the difference in physiology between the two types of diabetes, not appreciating this difference is likely to lead to care problems. We found that in the initial chronic disease history there was no effort to identify the age of onset of the disease, which is very important in determining whether the patient has type 1 or type 2 diabetes. We also found that patients with asthma did not have a peak flow measurement whether they were being assessed during an acute attack or whether they were being assessed when they were stable during a chronic clinic visit. In fact, one patient who by history was having 2-3 nighttime
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awakenings per week and was on inhaled steroids did not have his degree of control assessed nor was the patient given a follow-up visit sooner than three months. With regard to HIV disease, it is not clear why at the first chronic clinic visit, although a CD4 count was ordered, no viral load was obtained. When the patient was sent to the offsite clinic, the clinic recommended to have the patient return with a viral load. Also, it was not clear that the primary care chronic clinic clinician was querying the patient regarding side effects of the treatment regimen. On the positive side, when we reviewed significantly diminished serum Dilantin levels, each patient was seen by a clinician after the lab test was reviewed and discussions regarding adherence and/or changing doses were documented. It is critical to fill the Medical Director position so that the advanced level clinicians can improve their clinical performance. In the absence of feedback and discussion, it is guaranteed that performance will not improve.
Recommendations 1. Have the lab send a list of individuals who have had a hemoglobin A1c within the prior month along with the name of the patient, the specific results and the date that the lab test was performed. 2. Have the consulting Medical Director review the records of patients whose hemoglobin A1cs are above 9.0, indicating poor control. 3. Reinforce with the nursing staff and the clinicians the importance of assessing asthma by use of the peak flow meter.
11. Dental Care Compliance Status: Provisional substantial compliance.
Findings We learned that the x-ray equipment at the correctional facility is broken and needs to be repaired. As a result, certain procedures such as extractions cannot be performed, since it is a standard of practice to have an x-ray prior to any extraction. We discussed with the dentist and the Director of Correctional Health the possibility of utilizing the x-ray unit at the holding center on a weekend day and bringing 10 patients a week from the correctional facility to the holding center to obtain these x-rays. Custody indicated they would be fully supportive of this strategy to be used on an interim basis until the x-ray equipment at the correctional facility is in fact repaired. The provisional substantial compliance is based on implementing this strategy and in addition, repairing the equipment so that it is ultimately functional.
Recommendations 1. Get the x-ray equipment repaired. 2. Implement a system to have x-rays performed on correctional facility patients at the holding center on weekends until those services are no longer needed because the x-ray equipment at the correctional facility has been repaired.
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12. Care for Pregnant Prisoners Compliance Status: Substantial compliance.
Findings We reviewed the two records of pregnant patients currently housed at the holding center. In both cases, the pregnancy was identified during intake, the patient was seen by an advanced level provider onsite and then followed up at Women and Children’s Hospital in the prenatal clinic. In addition, in both cases the relevant documents from the prenatal clinic were available and reviewed by the onsite clinicians. One patient, during the course of her stay, delivered a baby and the records reflect both the prenatal and post-delivery care.
Recommendations 1. The quality improvement program should continue to track the timeliness of initial advanced level provider assessment after determination of pregnancy as well as timeliness of offsite service obstetric visits from time of diagnosis.
13. Dietary Allowances and Food Service Compliance Status: Substantial compliance.
Findings We toured the kitchen at the holding center and interviewed the Director of Food Services. We were unable to go to the correctional facility and also unable to interview the dietitian. We hope to interview the dietician during our next visit. In looking at the special diets currently assigned, we queried the Food Service Director as to which items from the standard menu would have to be substituted for, as an example, a diet for diabetics. He appeared knowledgeable and answered our questions both timely and correctly. Although we would have liked to have discussed this with the dietician, we will await that interaction for our next visit. The Director of Food Services appeared knowledgeable enough to appropriately make the special diet substitutions.
Recommendation None.
14. Health Screening of Food Service Workers This area is in sustained compliance.
15. Treatment and Management of Communicable Diseases Compliance Status: Partial compliance.
Findings We were informed by the Director of Correctional Services that there has been approval of a nurse to be hired with responsibilities to both direct the quality improvement program and
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function as the infection control nurse. We are encouraged by this since there are several functions which need to be better organized. The infection control nurse should collect data presented at a quarterly quality improvement meeting with regard to both the TB surveillance program as well as the skin infection program. In addition, there is a requirement to summarize the data on reportable cases also. Finally, the areas in which assessments are performed need to be monitored at least monthly and assurance be provided that effective sanitary procedures have been implemented. We look forward to the hiring of this nurse, both for the infection control program and for the quality improvement program.
Recommendations 1. Hire the person who will be responsible for both infection control and quality improvement leadership. 2. Establish a system to monitor both culture proven and presumptively treated MRSA cases on a monthly basis. 3. Report both categories of MRSA cases at the QI meeting on a quarterly basis.
16. Sexual Abuse Compliance Status: Partial compliance.
Findings We were provided with the sexual abuse allegation log and attempted to identify cases which were sent offsite and for which a SANE exam was provided. It was extremely difficult to read the log and it would have helped if the log contained a field for “sent to the hospital” and a second field for “SANE exam completed.” The sexual abuse coordinator indicated he would modify the log in the future. We reviewed two records of patients sent offsite for which a SANE exam was performed. It is not clear whether others may have been performed but we were unable to discern them. The sexual abuse coordinator believes that is the case. Of the two cases we reviewed, it was clear that a SANE exam had been performed; what was not clear was any direction given to both the medical and mental health staff with regard to follow up. The PREA standards specifically require follow up based on the nature of the assault and gender of the victim with regard to sexually transmitted disease treatment as well as pregnancy counseling. When you receive a report from a hospital that only indicates “exam performed,” you have no guidance as to what their recommendations are. In addition, we had no documentation that rape crisis counseling was provided and whether more mental health services were recommended. Because of the absence of guidance from the hospital this area remains in partial compliance. We discussed with the Director of Correctional Health Services his need along with relevant custody staff to meet with the leadership at the hospital so that the communication back to the holding center does provide the necessary guidance.
Recommendations
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1. Modify the sexual abuse assault log to add fields for both sent out to hospital and SANE exam done.
2. Meet with the leadership of the hospital and convey to them the need for follow-up guidance to be provided as a result of the SANE exam and/or the rape crisis counseling. This guidance should be part of the paperwork that returns to the facility.
17. Quality Management Compliance Status: Partial compliance.
Findings Although there is no Quality Improvement Coordinator, we have been assured by the Director of Correctional Health Services that a position has been approved and he intends to hire after the first of the year. Not surprisingly, the quality improvement program is substantially underdeveloped. There have been studies which we have reviewed with regard to medication errors, medical incidents, completeness of nursing documentation, CIWA assessment performance and missed medications. The studies that I reviewed were incomplete in that they contain data but no analysis against a standard, no determination of whether the performance was satisfactory and if the performance was not satisfactory, no development of an improvement strategy. These are all the requirements of an adequate quality improvement program. I will be happy to spend time with the Director of Correctional Health Services, the Director of Nursing and the new Quality Improvement Coordinator indicating my expectations with regard to the requirements of the quality improvement program as it addresses the areas in this Memorandum of Agreement. I look forward to working with the leadership team and expect that progress will be made soon.
Recommendations 1. Fill the Quality Improvement Coordinator position and the Assistant Director of Nursing position as soon as possible. 2. Work with the IT consultant regarding the ability to track critical elements through the electronic medical record by recustomizing encounter forms where indicated. 3. Perform the studies referred to under the recommendation section consistent with the recommendations we have made. If necessary, please feel free to contact the medical monitor.
18. Review of Clinical Care by Responsible Physician Compliance Status: Non-compliance.
Findings The 12 month vacuum in this position creates potential insecurity for the advanced level clinicians as well as lack of oversight of significant clinical decision making. This position needs
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to be filled as soon as possible with the appropriately credentialed clinician. The County must become creative in designing an attractive package for any applicants.
Recommendations
III. Protection from Harm
E. Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Sustained substantial compliance.
Findings Both the policy and the training are consistent with the continuation of substantial compliance.
Recommendation None.
I. Training of Medical and Mental Health Staff
Compliance Status: Substantial compliance.
Findings Both the medical and mental health staff have completed their training with regard to the handling of sexual abuse. The percent trained is well above 90%.
Recommendation None.
J. Suicide Prevention Program
e. Privacy Compliance Status: Sustained substantial compliance.
Findings See number 3 under Medical Care section.
Recommendation None.
f. Assessment of Inmates in Detoxification Compliance Status: Substantial compliance.
Findings The detoxification unit continues to function as a well-designed program.
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Recommendation 1. The QI program should continue to monitor the compliance of the nursing staff in performing the CIWA assessments.
D. Training of Officer Staff with Regard to Suicide Prevention Training Compliance Status: Sustained substantial compliance.
Findings This area remains in substantial compliance and has achieved sustained compliance.
3. Detoxification Training Program Compliance Status: Sustained substantial compliance.
Findings All of the required medical staff have had this training.
Recommendation None.
Summary of Findings
This monitoring visit was clearly affected by the challenging weather conditions. We were impressed with the ability of the custody staff and their leadership team to respond to the challenges with which they were presented. We appreciated the accommodations in their schedules in order to facilitate our review. Although this monitor was unable to review the program at the correctional facility and also unable to review medication administration under normal conditions, nonetheless the rest of our monitoring visit was completed within the expected timeline. We cannot emphasize enough the need to fill the Medical Director position and use some flexibility and/or creativity in developing a compensation package that is satisfactory. We also want to emphasize the importance of filling the Infection Control/Quality Improvement Coordinator position as well as the Assistant Director of Nursing. Although only two areas moved from partial compliance to substantial compliance, we were encouraged that in the absence of clinical leadership, greater deterioration had not occurred. We look forward to working with the team including the new leadership when these key positions are filled and also witnessing the implemented electronic record system.
Respectfully submitted,

RS/kh

R. Shansky, MD Medical Monitor
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 Case 1:09-cv-00849-WMS-JJM Document 289 Filed 09/09/15 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

)

)

PLAINTIFF,

)

)

v.

)

)

ERIE COUNTY, NEW YORK,

)

)

DEFENDANT.

)

)

)

_________________________________________ )

Civil No. 09-cv-0849

Eighth Monitoring Report US Department of Justice v. Erie County New York
Report of Technical Compliance Consultant Ronald Shansky, M.D. June 2015
Filed pursuant to Judge Skretny’s Order dated 8/26/2015 (Dkt. 287)

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Eighth Monitoring Report US Department of Justice v. Erie County New York
This report reviews the status of the medical program conditions at the time of the eighth monitoring visit which took place from June 1 through June 5, 2015. This review occurred shortly after the departure of the prior Director of Correctional Health Services and the occurrence of his replacement through the promotion of the Director of Nursing. Thus, at the time of this visit, the Director of Correctional Health also wore the hat of the Director of Nursing. The Chief Medical Officer position remains vacant now exceeding 18 months. Despite the prolonged vacuum of clinical leadership for the medical program, several staff led by the current Director of Correctional Health/Director of Nursing have invested substantial energy in an effort to maintain services as they have been.
This has been a challenge due to the vacancy of some of the primary care clinician positions as well as use of leave time against a backdrop of a staffing matrix that may not be sufficient to provide a timely service response based on service needs. As indicated later in this report, critical scheduled visits are at times cancelled due to inadequate clinician resource availability. In addition, in my tours of the facilities and my discussion with staff, it was extremely frequent that the staff member I interacted with had been brought in from an agency. One of my recommendations will be to provide me a staffing analysis that is based on a methodology that calculates the volume of service demands and takes into account the time it takes to perform the required tasks and also accounts for scheduled and unscheduled leave time including call-in time.
We met with the person responsible for recruitment of the Chief Medical Officer position who is employed by Catholic Medical Partners. He appeared knowledgeable and experienced in his field and committed to successfully accomplishing his task. We had a good discussion that included many of the challenges and obstacles to successful recruitment. The monitor has offered to help in any way and a suggestion was made that the monitor appear for a recruiting session during which he could present the reasons that a prospective physician could find this assignment quite rewarding. Nonetheless, it was clear to everybody that until the Chief Medical Officer position has been filled with the right candidate the likelihood of significant progress toward achieving substantial compliance is substantially reduced.
Recently, two additional positions were approved by the legislature. One was for a Quality Improvement Coordinator and the other for an Assistant Director of Nursing. The compensation attached to each position appears woefully inadequate. However, the monitor understands the need to comply with the personnel regulations with regard to posting and attempting to fill these positions. If, as is likely the case, adequate candidates do not present themselves for this compensation package, alternative strategies including contracting through an external entity
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such as Catholic Health should be considered. With these additional positions the correctional health leadership team should be centralized in an office space closer to the jail. I understand that such space has been identified in a building on Eagle Street. The Commissioner of Health and the County’s Department of Public Works – Building & Grounds should facilitate this relocation as soon as possible. It is very important that the team develop not only close working relationships but also spend much time in the Holding Center.
B. Medical Care
1. Policies and Procedures Compliance Status: Partial compliance.
Findings The new Director of Correctional Health Services provided a set of policies which had been promulgated about 13 years ago, before the jail’s medical service was placed under the supervision of the Department of Health. These policies needed substantial revision. Subsequently, the Director of Correctional Health provided a later set of policies which were developed under the leadership of the former Chief Medical Officer. Many of these policies appeared much closer to what the monitor was seeking. The state has indicated that the policies should better reflect the collaboration between the medical leadership, the mental health leadership and leadership of the Sheriff’s department. Although this monitor has witnessed the three programs work remarkably well together, a task force reflecting leadership from each area should be created to review and sign off on each of the health care policies. The challenge will be to accomplish this despite the vacancy in the CMO position.
Recommendations 1. Create a task force consisting of leadership from the medical program, the mental health program and the sheriff’s department to review and approve all policies that address sections of this agreement, such as medical autonomy, privacy, management of health records, training of custody staff, medication administration, access to care, etc. These policies should address all sections of the agreement. The monitor remains available for technical assistance. 2. By September 15, 2015, provide a staffing analysis in anticipation of our next visit that uses a methodology that takes into account the documented volume of service demands in relationship to the amount of time it takes to accomplish the required tasks. This staffing analysis must provide for scheduled leave time as well as account for the issue of unscheduled leave time. The staffing matrix should include the minimum numbers per shift at each facility by credential, such as RNs, LPNs, nurse practitioners and clerical staff. 3. Continue to aggressively pursue the efforts to fill the Chief Medical Officer position.
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4. Pursue the efforts to fill the Quality Improvement Coordinator position and the Assistant Director of Nursing position with an eye towards using creative strategies if the compensation does not attract adequate candidates.
5. The Commissioner of Health should relocate the correctional health leadership team so they can all be in a single space closer to the ECHC.
2. Medical Autonomy Compliance Status: Unable to assess.
Findings This particular section addresses the interaction of the Chief Medical Officer and the Sheriff’s jail leadership. The fact that the Chief Medical Officer position has remained vacant for more than 18 months precludes an assessment of the status. I was not able to interview practitioners with regard to their perceptions of their ability to perform their clinical responsibilities. However, the vacuum in the CMO position also creates conflicts with the Sheriff’s Office, as there is no clinician that they can interact with to make final determinations. Therefore, I remain unable to assess this area until the CMO position is filled.
Recommendations 1. Fill the Chief Medical Officer position.
3. Privacy Compliance Status: Substantial compliance.
Findings The areas in which health care is provided do afford appropriate privacy for the clinical interaction. We identified two new rooms on the second floor of the correctional facility which may be utilized by nursing staff for their sick call triage. The rooms do afford adequate privacy; however, neither room contains an exam table. The Director of Correctional Health Services as well as the Head Nurse at the Correctional Facility will have to monitor the types of symptoms addressed in these rooms to insure that where an exam is required the patient is moved to a more clinically appropriate professional setting in order for the exam to be completed. It is very important that nurses not compromise their professional skills in order to perceive that they are accommodating the available space.
Recommendations 1. When using the second floor rooms for nurse triage, the head nurse should review a sample of the problems addressed in that space in order to provide feedback to the nurses when cases are identified that should have been examined in an appropriate clinical exam room.
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4. Training of Custody Staff This area has been in compliance for more than 18 months.
5. Management of Health Records Compliance Status: Partial compliance.
Findings We had a good meeting with the IT company that is responsible for installing the electronic record software. They have utilized the Erie County forms to customize the software so that it accommodates the entry forms required by Erie County. We became aware that the Sheriff’s Office needed the EMR software to communicate alerts with regard to statuses necessary to protect certain inmate needs. This is being investigated by the IT company in communication with Black Creek. It is possible that the electronic record may be implemented either prior to or just after our next visit. We also toured the record area at the Holding Center and found that the loose filing of active records was quite up-to-date and the loose filing of records of inmates released from custody had been decreased since our last visit.
Recommendations 1. Move forward with the conversion to the electronic record, including procedures to insure that relevant documents are scanned into the electronic record timely after they have been reviewed and initialed and dated by the clinicians. 2. Continue the work with the selected vendor in order to facilitate the implementation of the electronic record.
6. Medication Administration Compliance Status: Substantial compliance.
Findings We observed the medication administration process, both in the morning and the evening. In the morning we observed the medication pass on Echo South and Bravo and in the evening we observed the medication pass on F North and A Long. In all four areas the nurse administering the medication performed in a manner that was consistent with the policies and procedures. These nurses made certain that all inmates who were to receive medications were contacted. In addition, they performed the process to correctly identify the patients. They removed the medications into the small pill cups and provided the medications to the inmates, who immediately ingested the medications and cooperated with making their mouths observable to insure ingestion had occurred. They then documented the ingestion on the medication administration records. The performance was appropriate. Given that the current arrangements with the local pharmacy insure that medicines are delivered to the facilities twice daily, there should be an expectation that these deliveries occur within the first 24 hours after the order is
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initiated and the medication should also be available to the patients generally within 24 hours of the initiation of the order. It is important to perform a study that looks at both medications ordered as a result of the intake process as well as medications ordered at the time chronic disease medications are needing renewal as well as medications newly ordered during one’s stay in the facilities. The studies should measure from the time of the order to the time of the receipt of the medications by the patient. We do not expect precise times to be recorded at the time of the order by the clinicians but that it is clear when those orders are received and the timeframe in which the patient receives the medication. We discussed utilizing a Pyxis-type machine, especially in the booking area, in order to insure availability of medications without maintaining a large stock inventory. This should over time prove cost efficient. The issue was raised as to whether the state allows controlled substances, including psychotropics, to be maintained in Pyxis-type machines. The monitor has never heard of a state being concerned about the security of Pyxis machines since in some ways they are more secure than other forms of medication storage.
Recommendations 1. Perform a study looking at intake medications, chronic disease continuity medications and newly initiated medications to determine whether the time of order to the time of the receipt of the medications by the patient occurs within 24 hours and when this level of timeliness is not achieved, what is the timeframe for receipt of medications. Indicate the percentages of successful accomplishment of 24 and 48 hours. 2. Determine whether there is in fact some state issue with utilizing Pyxis-type machines for “controlled” medications. Communicate with the monitor as to the finding.
7. Access to Care Compliance Status: Partial compliance.
Findings We have continued to see that patients who have submitted sick call requests were usually seen in a face-to-face assessment within one day. The professional performance, however, remains a work in progress. Examples include patients with complaints related to specific organ systems did not have those organ systems assessed during a physical assessment and also the subjective data collected was insufficient to accurately determine the nature of the probable cause for the symptom. These types of performance issues are likely to be exacerbated with frequent use of agency nurses who may not have received feedback on their performance. The program has begun to provide feedback to nursing staff and for this they are to be commended. This process is likely to be a slow one and will take time to improve the performance. However, the strategy utilized is encouraging.
Recommendations
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1. Continue to provide organized review and feedback to the nurses performing the sick call task.
2. It may be useful to organize the types of opportunities for improvement identified such as in the subjective area, the objective area, the assessment and the plan and provide a group training session in which examples of each category of types of performance issues are summarized.
3. Continue to monitor the timeliness of sick call assessments from the time of receipt to the time of assessment.
4. Even if the nurses performing sick call believe that the requested issues are so complex as to require an advanced level practitioner referral, they should still perform the sick call face-to-face assessment. The reason for this is that given the current shortage of advanced level providers, there is no way to insure the timeliness of the advanced level provider assessment occurring within the expected timeframe of the nurse assessment, that is within 48 hours of receipt of the request. Thus, there should be no instances of a nurse skipping the nurse assessment because of an anticipated need for an advanced level provider assessment.
8. Emergency Care Compliance Status: Substantial compliance.
Findings We again reviewed seven records and found that the timeliness and appropriateness of the initial assessments was satisfactory. In addition, when patients were sent to the hospital, the emergency room reports were available in the record and the patients were seen for a follow-up assessment in which the status of the patient as well as the findings and plan from the offsite service document were discussed.
Recommendations 1. The QI program should continue to monitor these unscheduled offsite service encounters, both those that do not result in sending the patient offsite and those that do result in an emergency room trip. This review should include both the initial response as well as any follow up.
9. Follow-Up Care Compliance Status: Partial compliance.
Findings We were quite chagrined to learn that the scheduled offsite service provider ECMCC has since our last visit implemented a new procedure. Under this new procedure, the jail is not able to call ECMCC and receive an appointment. Instead, after receiving a communication from the jail, the
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ECMCC scheduler notifies jail staff of an appointment scheduled for usually around 90 days in the future. This is completely unacceptable and if not resolved before our next visit will result in a compliance status assessment of noncompliance. This clear delaying strategy is based on the presumption that a high percentage of patients from the jail will be released before 90 days and therefore the services will not have to be provided. This appears to be a method on the part of ECMCC to avoid providing necessary services. This must be immediately rectified.
Recommendations 1. Resolve and correct the current ECMCC strategy designed to create the illusion of appointments and if that proves impossible, find an alternative offsite service provider. The current arrangements are consistent with an assessment of noncompliance. 2. The QI program should continue to track the timeliness of receipt of appointments, the timeliness of availability of offsite service documents and the timeliness of follow-up visits with an advanced level provider in which the findings and plan are discussed with the patient.
10. Chronic Disease Compliance Status: Partial compliance.
Findings Not surprisingly in the absence of a Medical Director, the performance with regard to chronic disease professional performance demonstrated significant need for performance improvement. Among the problems identified were delays in initiating the chronic disease program as well as inappropriate responses to poorly controlled diseases. Finally, in some instances the response to poorly controlled disease lacked the urgency that the absence of good control warranted. Additionally, some patients with chronic diseases never had their laboratory work performed even though they were housed in the system for a sufficient period of time to have received those laboratory studies. Additionally, the clinicians continue to fail to query diabetics regarding their age of onset of the disease in order to be able to differentiate between type 1 and type 2 pathology. We also reviewed the record of a patient who appeared to have type 1 disease in which the clinician checked that the physical exam should be performed urgently but then circled that the exam could be performed within one week. Another patient whose blood pressure was 180/120 was referred for her physical exam within the timeframe of a patient who was well controlled. Although the patient was given medication that could have more quickly reduced the blood pressure, there was no recheck to determine the effectiveness of this intervention. This should always be done.
Recommendations 1. Patients whose blood pressure or finger stick is consistent with poor control should be monitored and treated aggressively in order to achieve good control as expeditiously as is
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clinically appropriate. Their history and physical and first chronic disease visit should be performed within 24 hours. The second visit should be performed within one week or less. Patients in fair control should have their second visit within two weeks or less and only patients who were in good control at the time of the intake exam conducted within the first week should have their second visit within the first 30 days of incarceration. After the second visit the follow-up visits should be based on disease control also. Good control may be followed up within 90 days, fair control may be followed up within 60 days and poor control may be followed up within 30 days. 2. The timeliness of these responses should be monitored by the QI program. 3. Whenever blood sugar or blood pressure is urgently treated nurses should be trained to follow up within an hour of the intervention in order to determine the effectiveness of the intervention.
11. Dental Care Compliance Status: Substantial compliance.
Findings Data from the month of May for each facility reflects a rate of patients scheduled who had been seen at greater than 90%. In addition, although in some months at the ECCF the data demonstrates a ratio of restorations to extractions of one to one, there is great variation from month to month. In most months the number of extractions significantly exceeds the number of restorations. In the worst month the number of extractions was 20 and the number of restorations was two. Fortunately this was atypical. Both facilities should provide monthly reports not only on the percentage of scheduled patients seen but also on the ratio of restorations to extractions. The target should be at least a ratio of one to one restorations to extractions.
Recommendations 1. Provide a monthly report of both percentage of scheduled patients seen as well as the ratio of restorations to extractions.
12. Care for Pregnant Prisoners Compliance Status: Substantial compliance.
Findings The program performed some studies looking at whether pregnant inmates were tested on intake, whether pregnant inmates received appropriate vitamins and diet orders, whether they received a timely advanced level provider assessment and finally whether they received an offsite OB service in a timely manner and whether the documentation was available in the record. The performance in these areas was good and was validated by our own review. Their study, which we confirmed, showed opportunities for improvement with regard to the timeliness of a follow-
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up visit upon return from the obstetrician’s office. This did occur timely two-thirds of the time but not in one-third of the cases. The QI program is to be commended for not only initiating these studies but also for correctly performing them.
The night before the last day of our visit, a patient delivered a baby in the jail, having been seen by the obstetrician within the prior week. The patient made no contact with health services regarding contractions and the timeframe for contacting medical and the delivery of the baby was so short that the ambulance had not yet arrived. Nonetheless, the staff, including the Director of Correctional Health, are to be commended for the appropriateness and professionalism which they demonstrated under trying circumstances. At last report, both baby and mother were doing well.
Recommendations 1. Continue the QI program monitoring of these services.
13. Dietary Allowances and Food Service Compliance Status: Substantial compliance.
Findings We did not have time to talk with the Dietician on this visit, but since this area has been in substantial compliance for the last three visits we assessed substantial compliance. We still would like to be able to discuss a few items with the dietician and hope to have that discussion at our next visit.
Recommendations None.
14. Health Screening of Food Service Workers This area remains in sustained compliance.
15. Treatment and Management of Communicable Diseases Compliance Status: Partial compliance.
Findings Although we were notified during this visit that the legislature has approved a Quality Improvement Nurse who will also be responsible for the coordination of the infection control program, we were chagrined to learn that the position was approved with a grossly inadequate compensation program. Thus it is unlikely that a person with appropriate experience and skill will be attracted. We are aware that the process requires posting internally and then externally in an effort to find suitable candidates and only once this strategy has been utilized can an entity within the County look to more creative strategies that may be more likely to achieve success.
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Once these strategies have been exhausted the County must consider utilizing an outside of the box strategy, such as contracting for these services with an outside entity.
Recommendations 1. Despite the inadequate compensation, go through the process required by the County to fill the position. 2. When this strategy proves unsuccessful, consider outside of the box approaches. 3. Insure that there is sufficient administrative support for the Director of Clinical Health for not only the quality improvement program and the infection control program but correctional health services in general.
16. Sexual Abuse Compliance Status: Substantial compliance.
Findings We again had a discussion with the Sexual Abuse Prevention Coordinator who has begun tracking both the receipt of the SANE exam as well as the provision of crisis services and the recommended follow up where indicated. Since the program is now monitoring these elements actively, in our view they have achieved substantial compliance. All instances of sexual abuse allegation are being investigated and for this the institution deserves credit. The Sexual Abuse Prevention Coordinator for the jail appears quite conscientious and has developed a well-run program.
Recommendations None.
17. Quality Management Compliance Status: Partial compliance.
Findings There has been a significant increase in the quality improvement activity and for this, even without a Quality Improvement Nurse, the program is to be commended. Some of the areas for which I have seen studies or data include the timeliness of the nurse intake screen as assessed from booking time to completion of the nurse screen. In the slowest month, the average time was three hours and 14 minutes. This is excellent performance for which both custody and the nursing staff are to be commended. Additionally, the performance on the pregnancy audit tool was generally quite good. The section on pregnancy reviews the types of data assessed. There was also a study with regard to nurse sick call in which the sick call process was reviewed, beginning with symptomatic complaints being seen face-to-face and whether the nursing note correlates with the patient complaint written on the slip. When the patient was referred for a nurse face-to-face assessment was there a documented note in the chart and was that note
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adequate. These studies with feedback to the staff become the hallmark of an adequate QI program. There was also an emergency care audit in which the performance was generally good, with the exception of the timeliness of follow-up visits after return from the hospital. There was also a study of the completeness of the CIWA monitoring and we discussed strategies to improve the data summary. There was also a study of the intake process and whether required elements were completed and also completed correctly. Unfortunately, we did not have the time to replicate some of these later studies in order to validate the results. Finally, there was a medication administration study which we would also like to have been able to review. All this activity in the absence of a QI Nurse and the absence of a CMO demonstrates to us that the leadership team, especially the head nurses and the Director of Correctional Health Services, are putting forth a maximum effort to improve the program. With the addition of the Quality Improvement Nurse who will also perform infection control responsibilities as well as the Assistant Director of Nursing and the filling of the Director of Nursing position along with, of course, the Chief Medical Officer position, this program has the potential to become an excellent program. We will do whatever we can to provide technical assistance and any other support in order to facilitate that outcome.
Recommendations 1. Do what is necessary to attract excellent candidates for both the Quality Improvement Nurse position and the Assistant Director of Nursing position. Hopefully these will be filled before our return visit so that we can begin working with them. 2. To the extent that we can be provided a summary of the QI activities we can plan our visit in an effort to validate many of these studies.
18. Review of Clinical Care by Responsible Physician Compliance Status: Noncompliance.
Findings All agree that the 18-month clinical leadership vacuum has compromised the County’s ability to achieve substantial compliance. We will not see improvements in custody’s ability to work with the clinical leadership, in the performance of the clinicians, in the appropriateness of responses of the nurses, especially to critical vital sign abnormalities, until this leadership is in place. No program can adequately meet the needs of the patients while a prolonged clinical leadership vacuum exists.
Recommendations 1. Fill the CMO position.
III. Protection from Harm
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E. Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Sustained substantial compliance.
Findings Both the policy and the training are consistent with the continuation of substantial compliance.
Recommendations None.
I. Training of Medical and Mental Health Staff
Compliance Status: Sustained Substantial compliance.
J. Suicide Prevention Program
e. Privacy Compliance Status: Sustained substantial compliance.
f. Assessment of Inmates in Detoxification Compliance Status: Sustained substantial compliance.
D. Training of Officer Staff with Regard to Suicide Prevention Training Compliance Status: Sustained substantial compliance.
3. Detoxification Training Program Compliance Status: Sustained substantial compliance.
Summary of Findings
This visit, the absence of clinical leadership in the form of a Chief Medical Officer persisted despite efforts by the County, most recently working with Catholic Health, to recruit and fill the position. There is no question that the vacuum in this position creates a disability which is impossible to overcome. However, despite that fact, the new Director of Correctional Health has performed yeoman work in pulling the team together and initiating the quality improvement program without the benefit of a Quality Improvement Nurse or for that matter an Assistant Director of Nursing. These critical vacancies need to be filled. Although the legislature has created the positions, our sense is they are fatally undercompensated and thus County procedures must be exhausted before serious efforts can be made to fill these positions. We were extremely disturbed to see a newly implemented strategy by ECMCC in which, in their responsibility to provide scheduled offsite services, they have and are trying to avoid that responsibility by scheduling visits at a 90-day increment, hoping for the services not to be provided because the patient has already been released. This problem must be corrected as soon as possible, either by
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ECMCC or by establishing a relationship with an alternative source. The CMO position does need to be filled, the Director of Nursing position does need to be filled, the Assistant DON position does need to be filled and the Quality Improvement Nurse position does need to be filled, and also the three nurse practitioner positions need to be filled. With all of these elements in place this program and its leadership team will enhance the performance so that substantial compliance is in fact achieved. The implementation of the electronic record once fully implemented will facilitate that accomplishment.
Respectfully submitted,

RS/kh

R. Shansky, MD Medical Monitor

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 Case 1:09-cv-00849-WMS-JJM Document 302 Filed 01/11/17 Page 1 of 11
Eleventh Monitoring Report US Department of Justice v. Erie County New York
This report will review the status of the medical program conditions at the time of this Eleventh Monitoring Visit, which took place from October 17 through October 21, 2016. In my view the program is making progress despite several of its serious challenges. Among those challenges, the greatest challenge stems from the staffing configuration. The County performed a staffing analysis which indicated that there is a fairly consistent predictability to the leave time utilized by employees. It has made the decision not to increase the number of positions. As an alternative it could increase the fee for service contracts or do other things which other jurisdictions have implemented to reduce the number of hours of leave time taken by its staff. It also utilizes an agency to fill in for staff who are utilizing leave time. The problem is that working in a correctional health environment and utilizing an electronic record takes a significant amount of preparation and as a result of the inadequate preparation agency nurses are able to experience, the quality of the services provided are impacted negatively. It is not clear to me that with the persistent use of agency nurses rather than fee for service or an increase in civil servant positions or a decrease in leave time taken, that on many of the care issues the program is likely to achieve substantial compliance. This structural staffing challenge is the major obstacle from our review. Studies have been conducted that demonstrate that there is far more increase in turnover of agency staffing than employee staffing and there is also poorer professional performance by agency staff than by employees. These findings are somewhat to be expected and the County is responsible for implementing one of the strategies that is available to them, including reducing the amount of leave time taken, increasing the number of fee for service positions, increasing the number of authorized positions, or implementing some other strategy that results in greater stability and consistency of the nursing staff.
Finally, when the County addresses the staffing structural problems, I believe the program is much more likely to achieve substantial compliance in the clinical areas. Currently there are nine items in the medical area which have achieved substantial or sustained substantial compliance but also nine areas that remain in partial compliance. Unless the structural issues are addressed, I am not optimistic about the remaining nine areas moving into substantial compliance.
On the other hand, things that are under the control of the correctional health program have demonstrated progress. One of the areas is regular multidisciplinary meetings which are occurring twice daily, seven days a week between medical staff and mental health staff. This is designed to facilitate communication and impact in a positive way the quality of both medical and mental health services. This is a significant step forward.

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Also, the implementation of the electronic record is almost completed with the exception of the e-prescribing mandated by the state of New York. We talked with the vendor and these remaining elements should be implemented by early December. It appears that the staff find the software relatively user friendly and it does support improved quality of the documentation and of services.
The transfer of responsibility from the Department of Health to the Office of the Sheriff has been completed. We queried staff about that and it appears to the staff to have been seamless. On the other hand, the leadership people feel they have far more support in their efforts to improve services under the new arrangements. In particular, they now control their own budget and the Office of the Sheriff has allowed them to utilize the monies more efficiently.
B. Medical Care
1. Policies and Procedures Compliance Status: Partial compliance.
Findings During this visit I have reviewed a large number of documents. Those documents include policy 6-06-00, Discharge Medications, 11-00-00, Medication Management, 15-00-00, Infection Control, and 18-00-00, Quality Improvement. In addition to those policies reviewed, we also reviewed medical records, the policy on refusal on forensic mental health services, staffing analyses from 2015 and 2016, the policy and procedure on the grievance process, the registered dietician monitoring reports, and quality improvement minutes from June, July, August and September. We reviewed minutes of the pharmacy and therapeutics committee meeting. We reviewed quality improvement forms, quality improvement studies, a study on nurse screening, a study on pregnancy, a study on detoxification and patients sent to the hospital, a study on unscheduled off sites, a study on hospital admissions, a study on chronic care. We also reviewed reviews of nursing performance as well as clinician performance, reviewed documentation from the dental program, we reviewed clinician productivity data and finally, we reviewed a summary of scheduled offsite services.
With regard to the policy and procedures, we had some suggested changes which we discussed with the leadership team. We were very impressed with the efforts being made to improve the program. It is clear in this reviewer’s experience that originally beginning in the discovery phase of this litigation, this was one of the most underdeveloped programs I have reviewed in recent years.
Recommendations 1. Complete the changes to the policies and procedures which we discussed.
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2. Make sure the staff understands the purpose of each policy and the critical elements housed within each policy.
2. Medical Autonomy Compliance Status: Substantial compliance (moving towards sustained).
Findings The Chief Medical Officer has been in his position for about a year. He is working quite closely with custody and indicates that whenever he notifies custody about a required offsite service need custody quickly accommodates that need. I emphasized with him that unless he articulates the need to custody leadership they cannot be expected to facilitate access.
Recommendations None.
3. Privacy Compliance Status: Substantial compliance.
Findings We reviewed and visited the rooms used for exams at the correctional facility. These rooms are upstairs from the housing units but do not require leaving the housing unit in order to utilize them. Thus, the custody needs for resources are reduced. The exam rooms are completely equipped and are being utilized by the nurses. I also discussed with the clinicians the need to utilize these exam rooms.
Recommendations: 1. Continue to emphasize the need for patient privacy as well as professionalism and treating patients with dignity.
4. Training of Custody Staff Compliance Status: Sustained compliance. This area has been in compliance for more than 18 months.
5. Management of Health Records Compliance Status: Partial compliance (near substantial).
Findings The major element yet to be implemented is the e-prescribing with the mandate by the state to use Sure Scripts so that verification can be achieved with each controlled substance prescription. I queried the clinicians and they found the software relatively user friendly. In addition, I observed medication administration and there were no Wi-Fi breakdowns as had occurred
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before. Thus the installation and implementation of Wi-Fi in the housing units, both at the correctional facility and at the holding center, appears to be remarkably successful.
Recommendations 1. Complete the implementation of the e-prescribing, including the verification process required by the state. 2. Continue to work with the IT consultant both in modifying encounter forms and in developing reports. 3. Identify a staff member whose interests are consistent with computer technology such that the staff member may become facile with queries and reports. 4. Also implement version 12.2 of Centricity.
6. Medication Administration Compliance Status: Substantial compliance (next visit will achieve sustained).
Findings We visited and observed medication administration and it was conducted quite efficiently and without any technologic problems. The utilization of the electronic record including the electronic medication administration record appears to be a success. The next phase appears to be utilizing barcodes on both the inmate wristbands and the medications. The inmate wristbands are about 75% completed with regard to the introduction of the barcodes. There is discussion with the vendor about barcoding the medication. This system is designed to reduce human error. The patients in each of the housing units were seen efficiently and the patients were completely cooperative with regard to bringing liquid to the ingestion and participating in the post-ingestion mouth inspection. I remain concerned about the wording of the policy on release medications, in that the medical program is only, according to policy, responding to an inmate’s request to be provided with medications at the time of release. I will be interested to see how successful this policy is in insuring that a significant percentage of the detainees are provided with medications at the time of release. As I had indicated previously, they may also be provided with a prescription for a pharmacy from which they can receive previously phoned in prescriptions.
Recommendations 1. Perform a study looking at patients on chronic medications and the extent to which they are calling for their medications. 2. In that study, also identify the extent to which they are picking up the medications. 3. Continue to perform timeliness studies between order for medications and receipt by the patients, both those who are newly entering the jail as well as those who have been in the jail for some time.
7. Access to Care
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Compliance Status: Partial compliance.
Findings We reviewed several records with the staff. We again found some problems with regard to adequacy of either subjective data collected or adequacy of objective data collected as well as absent or problematic assessments. We had a lengthy discussion with the nursing supervisory group regarding the expectations of nurses today in the community. From that discussion the Director of Correctional Health Services indicated that she would draft a nursing physical assessment form that required nurses to document consistent with current nursing standards. We were impressed with the self-monitoring of the nursing performance, both at the holding center and the correctional facility. However, reviewing the work of nurses filling in from the agency becomes a special challenge for the supervisors. Under the current structural impediments, unless more positions are added or fee for service positions are created or there is a reduction in leave time utilized, we believe that it will be very difficult to get consistent quality performance from the nursing staff whose work is reviewed. The responsibility of the supervisors is to review the performance of those on site providing services, even if that number of nurses to be reviewed is far larger than it should be.
Recommendations 1. The Director of Correctional Health is to develop with the IT consultants a nursing physical assessment form that contains each of the organ systems to be assessed. 2. If nursing wishes to abandon nursing diagnoses as they exist in the encounter form currently then they must submit to me for my approval the alternative for documentation during sick call assessments.
8. Emergency Care Compliance Status: Sustained substantial compliance.
Findings We reviewed a record of a patient sent out on an emergency basis and the documentation was available from the offsite service and the patient was followed up appropriately.
Recommendations 1. The QI program should continue to monitor these unscheduled offsite service encounters for completeness of documentation and follow up. 2. In addition, the Chief Medical Officer and Director of Nursing should monitor the onsite responses that did not result in send outs to insure that decisions are being made appropriately.
9. Follow-Up Care
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Compliance Status: Partial compliance.
Findings One of the records we reviewed for a service provided in June did not receive the report until August 10th. There was no documentation of efforts to acquire the report. All documentation must be available timely for utilization for a follow-up visit by the clinician. The clinician must use the report to discuss whatever findings were documented as well as a plan. The quality improvement program must take responsibility for insuring that this service works timely and well.
Recommendations 1. The QI program should monitor the follow up of scheduled offsite services and insure that 100% of the time appropriate follow up occurs timely. 2. Continue to monitor the timeliness of the scheduling of appointments in relationship to the orders. 3. Consider the strategy of utilizing the clinicians to suggest a consultation or procedure but the actual order does not get initiated until sanctioned by the Medical Director.
10. Chronic Disease Compliance Status: Partial compliance.
Findings There has been some turnover in the clinician staffing and some of the problems we found were an absence of timely follow up, inadequate objective data, inadequate subjective data and failure to assess degree of control. Partly this was attributable to lack of appropriate completion of the electronic forms. Clearly, the Chief Medical Officer has some work to do and it will help if there is some stability to the staffing, which we hope becomes the norm.
Recommendations 1. Continue the professional performance enhancement review program of at least four or five records per clinician per month until performance is acceptable and then it can be reduced to once per quarter. 2. Insure that patients with unusual or problem prone diseases are referred to the Medical Director as well as patients with end stage disease, patients whose disease is difficult to control and patients with more than three chronic diseases.
11. Dental Care Compliance Status: Partial compliance.
Findings
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We found that there was significant variability from month to month between the number of restorations performed versus extractions. If there are dentists who are not performing restorations even though the dentition otherwise is good, they must be replaced with dentists who perform at least at the level of a community standard. In our experience, the dentists in correctional facilities need to have their work reviewed and strongly encouraged to perform restorations. A practice of exclusively performing extractions is counter to the community standard.
Recommendations 1. Continue to provide a monthly report of both percentages of scheduled patients seen as well as the ratio of restorations to extractions.
12. Care for Pregnant Prisoners Compliance Status: Sustained substantial compliance.
Findings We reviewed the record of one pregnant female who developed withdrawal signs and symptoms during her first week in the jail. She was sent out immediately to ECMCC Hospital and was released from there three days later. This was a potential problematic case that was well handled by the medical staff. As a result, a serious negative outcome was avoided.
Recommendations 1. Implement a policy such that there can be no pregnant patient refusals of visits with the primary care clinician unless the patient is brought to the clinician and refuses face-toface despite the clinician’s counseling.
13. Dietary Allowances and Food Service Compliance Status: Substantial compliance.
Findings We reviewed the reports from earlier this year where the dietician came on site to observe the meal process. Her reports indicate that there is consistency between the master menu and the substitutions that are consistent with various special diets. She also has observed that the plating is consistent with her recommendations.
Recommendations 1. The dietician should continue to monitor the congruence between the actual plated special diets and her recommendations for diet substitutions whenever she visits.
14. Health Screening of Food Service Workers
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Compliance Status: Sustained compliance.
Recommendations None.
15. Treatment and Management of Communicable Diseases Compliance Status: Partial compliance.
Findings The quality assurance/infection control nurse understands what data we are looking for. She has not yet assembled the data for our use. That data has to include the TB control process as well as documentation of skin infections, both presumptively treated as well as culture proven. We expect that at our next visit the data will be forthcoming.
Recommendations 1. Please contact me with any questions regarding the implementation of the communicable disease program.
16. Sexual Abuse Compliance Status: Sustained substantial compliance.
Findings We reviewed a few cases from the Sexual Abuse Prevention Coordinator log and found that the records supported the findings in the log. We perceive strong leadership in the area of compliance with the sexual abuse prevention requirements.
Recommendations None.
17. Quality Management Compliance Status: Partial compliance.
Findings We were impressed with the number of findings generated in the past six months. Clearly there has been a lot of work done. What we would like to see is more discussion of the data at the quality improvement committee meetings and an analysis of the causes of performance that is less than acceptable with regard to potential causes. We would also like to see documentation at these meetings of the relationship between improvement strategies and the results of the analysis of causes for substandard performance. The focus of the quality improvement program should continue to be the intake program, sick call, chronic care, pregnant patients, urgent/emergent care, scheduled offsite services, medication management as well as dental services and communicable disease services. Within medication management, compliance with the three
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refusals by patients generating a counseling with the clinician must be performed. I am encouraged that studies are being generated. The next step is discussion, analysis and, where performance is not acceptable, the relationship between the analysis and the improvement strategy that is implemented must be clear.
Recommendations 1. Continue performing studies with regard to the above-mentioned services which then become discussed in the quality improvement committee meetings.
17.(b) Review of Clinical Care by Responsible Physician Compliance Status: Partial compliance.
Findings There has been some turnover of the staff and therefore the Chief Medical Officer has to start over with the new employees. It is important that he be available onsite and involved in formulary creation and the development of other clinician policies and procedures. My sense is that he could be and must be more assertive with the clinicians so that their practices more easily conform to his expectations. I cannot emphasize enough that his review of their work must be perceived by them as educational.
Recommendations 1. The Chief Medical Officer should contact me monthly regarding progress he is making with the clinicians.
III. Protection from Harm
III.A.5.k Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Sustained substantial compliance.
Findings
Recommendations
III.5.l Training of Medical and Mental Health Staff
Compliance Status: Sustained Substantial compliance.
III.A.1 Suicide Prevention Program
III.A.1.e Privacy
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Case 1:09-cv-00849-WMS-JJM Document 302 Filed 01/11/17 Page 10 of 11 Compliance Status: Sustained substantial compliance. III.A.1.f Assessment of Inmates in Detoxification Compliance Status: Sustained substantial compliance. III.A.2 Training of Officer Staff with Regard to Suicide Prevention Training Compliance Status: Sustained substantial compliance. III.A.3 Detoxification Training Program Compliance Status: Sustained substantial compliance.
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Summary of Findings
When the structural staffing problems are effectively addressed it is likely that the remaining items will reach substantial compliance. Until that happens, I remain concerned. However, I am pleased with the progress in the quality improvement area.
Respectfully submitted,

RS/kh

R. Shansky, MD Medical Monitor

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medication management, including pharmaceutical services, emergency preparedness, infectious disease prevention, quality improvement program and chronic disease management. I had a few comments for several of those policies and I was informed by the Director of Correctional Health that she will integrate my comments into the final copy that is then reviewed and signed off by the Sheriff. We were also informed that for all staff the policies and procedures are both available on the SharePoint document review strategy as well as a hard copy binder that will be available at each facility. The staff can read on SharePoint but certainly not make any changes. Once the changes have been completed, especially for such policies as emergency response and any that require the knowledge of the officers, they will be read at roll call on 10 consecutive days for each custody shift.
Recommendations 1. Complete the few changes to the policies and procedures which we discussed. 2. Insure that the health care staff understands not only the purpose of each policy but the critical elements housed within each policy.
2. Medical Autonomy Compliance Status: Sustained substantial compliance.
Findings Although the Medical Director position has changed very recently, I believe that custody leadership will insure that he is integrated quite closely into the program. I had been extremely impressed with the coordination let alone cooperation between custody and the health care program. In this area, this program is a model of integration of health care services with custody.
Recommendations None.
3. Privacy Compliance Status: Substantial compliance.
Findings We again reviewed and visited the rooms used for exams at the correctional facility. These rooms provide the required privacy and are adequately equipped. They are also beginning to be utilized by the clinicians and this diminishes the use of custody resources.
Recommendations 1. Continue to emphasize the need for patient privacy as well as professionalism and treating patients with dignity.
4. Training of Custody Staff
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Compliance Status: Sustained compliance. This area has been in compliance for more than 18 months.
5. Management of Health Records Compliance Status: Partial compliance (near substantial).
Findings Although the electronic controlled substances record has been implemented, it has been reported to me that there are problems yet remaining. I talked both with the Director of Correctional Health as well as the IT company. It is not clear whether the remaining hitch, which creates more work for the practitioners, is an IT problem or a registration problem related to the lack of effective registration with the system. This clearly needs to be resolved as soon as possible. Whether it is an IT issue or a correctional health program practitioner registration issue, it needs to be determined as quickly as possible and the strategy to mitigate the problem must be implemented. It was also made clear that the IT company that supports the software expects at each major jurisdiction to be working with an IT person locally who knows the software and how to utilize it, so that when a problem arises the local IT person may communicate with the Fusion support to resolve issues. My understanding is the County is investigating the need for a local resource, whether that be through a contract or as an employee.
Recommendations 1. Resolve the E-prescribing, which creates an extra step for the practitioners. 2. Before my next visit the correctional health program should identify what kind of local IT resource they need in order to work with the Fusion IT company.
6. Medication Administration Compliance Status: Substantial compliance.
Findings We again visited and observed medication administration and the process was both efficient and without any significant problems. The implementation of the electronic medication administration record not only is efficient to utilize but it is also efficient for the practitioner who was looking up the patient adherence records. The inmate wristbands are 100% completed with the introduction of the barcodes. The barcoding and wanding system has not been fully implemented but this can and will be accomplished in the relatively near future.
Recommendations 1. Implement the barcoding as a strategy to diminish the probability of staff errors.
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2. The Director of Correctional Health should meet with the pharmacies so that she receives adequate data in order to determine how effective not only the reentry program is but also the effectiveness of her clinicians in educating the patients with regard to health care maintenance on the outside.
3. Perform a study looking at patients on chronic medications and the extent to which they are calling for their medications.
4. In that study, also identify the extent to which they are picking up the medications and therefore correctional health is being billed.
5. Continue to perform timeliness studies between order for medications and receipt by the patients, both for those who are newly entering the jail as well as those who have been at the jail for some time.
7. Access to Care Compliance Status: Partial compliance, near substantial compliance.
Findings The access process continues without change. Inmate requests are collected nightly, both from general population units and from lockdown units. Before the slips are scanned into the medical record software, a registered nurse triages the slips. Every night there is a shift summary report that includes the number of slips collected and described as asymptomatic versus symptomatic. Of the medical slips collected, 10-15% are non-symptomatic and 85% are symptomatic. As far as can be ascertained, there are no substantial problems of access to care within the lockdown units. When we reviewed records, one of the records we reviewed demonstrated both medical problems as well as a tendency to somatize the symptoms. The patient was both followed by medical and by mental health and yet there were no discussions of a multidisciplinary nature regarding his problems. We believe this patient would have benefitted from a multidisciplinary approach. Most of the records demonstrated an adequate collection of subjective as well as objective data. However, there was one patient who complained of a new knot in his knee but there was no description of any tenderness or soreness with regard to the physical examination.
Overall, there has been nursing care improvement observed with most records. Also, we found in some records the nurse described referral to an advanced level provider and yet despite the patient remaining in the jail, there was no order reflecting this nor was there any documentation. The Director of Correctional Health requested modification for the nurse sick call screen and this was agreed to by the monitor; however, the monitor understood that this would apply to the sick call physical assessment form. Instead, both the subjective and objective documentation were modified based on a system created by the military. Although the system appears less logically formatted, the monitor has agreed to it, since this is the system taught in nursing schools. Although in the monitor’s experience nurses have performed well in other jurisdictions during the 1980s and 1990s using the prior format, if this is the approved nursing school format it is
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accepted by the monitor. The performance was near substantial compliance. Overall, the access was consistently timely as patients were seen within 48 hours of receipt of the request.
Recommendations 1. The ADON and DON must provide feedback on a regular basis to the nurses performing sick call. 2. This must be done via a face-to-face discussion of records having been reviewed, with an emphasis on strategies to improve performance.
8. Emergency Care Compliance Status: Sustained substantial compliance.
Findings Records we reviewed consistently contained the offsite service report and follow up was appropriate.
Recommendations 1. The QI program should continue to monitor these unscheduled offsite service encounters for completeness of documentation and follow up. 2. In addition, the Medical Director and Director of Nursing and ADON should monitor the onsite responses that did not result in send outs to ensure that decisions are being made appropriately.
9. Follow-Up Care Compliance Status: Partial compliance.
Findings We reviewed eight records and found a few with problems of either scheduling delays or delay in the timeliness of follow up. One example discussed in some detail was from an order that was written in October 2016 to the urologist and this was not scheduled until February 15, 2017. There was also no documentation regarding efforts to move the appointment to an earlier time. We also reviewed a second case in which an MD requested an MRI on December 9 but the MRI was not scheduled until mid-February, more than two months later. These delays fortunately were not typical but were not recognized by the staff, at least insofar as there is any documentation to suggest that staff appreciated the delay and urged an earlier appointment.
Recommendations 1. The QI program should continue to monitor the timeliness of the scheduling of appointments using routine requests as acceptable if the appointment occurs within 30
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days. If not, the Medical Director should be notified and document whether or not an effort was made to arrange an earlier appointment. 2. Consider the strategy of utilizing the clinicians to suggest a consultation or procedure but the actual order does not get initiated until sanctioned by the Medical Director. 3. Measure the timeframe between clinicians ordering and the Medical Director approval. 4. The QI program should monitor the follow up of scheduled offsite services and insure that 100% of the time appropriate follow up occurs timely.
10. Chronic Disease Compliance Status: Partial compliance.
Findings We are aware that at some point since our last visit there were three vacant nurse practitioner positions. Clearly, this is likely to result in delays with regard to timeliness of follow up of chronic problems. In addition, in records we identified, the practitioners were not always either documenting the disease control nor accurately assessing the disease control based on published definitions. Also, a patient was identified whose clinical findings put him in the highest risk category and yet he did not have an initial practitioner assessment until three weeks after he entered the facility. This patient should have been assessed within 24 hours and should have been monitored because of his high-risk status until he was assessed. A second patient who was not as high risk but entered with a history of hypertension and his disease control was fair control, did not have his practitioner initial assessment until one month later. The challenge for the new Medical Director remains working with the nurse practitioners so that they share his sense of urgency when it is clinically indicated and their performance is consistent with his training for them.
Recommendations 1. The Medical Director should provide a review of the common chronic diseases and, where indicated, provide guidance as to the types of responses needed for particular blood pressure or blood sugar elevations as well as high risk blood pressure and finger stick reductions that create risk to the patient. 2. Continue the professional performance enhancement review program of at least four or five records per clinician per month until performance is consistently acceptable and then it may be reduced to once per quarter. 3. Insure that patients with unusual or problem prone diseases are referred to the Medical Director as well as patients with end stage disease, patients whose disease is difficult to control and patients with more than three chronic diseases.
11. Dental Care Compliance Status: Partial compliance.
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Findings The monthly data that documents the rate of extractions to restorations continues to be extremely disappointing. During most months, few if any restorations were performed, even though the average age of inmates is relatively young and they are more likely to have adequate dentition to support the provision of restoration services. We are aware that the County has created both a dental and dental assistant position and there is an effort underway to fill those positions. The dental staff should be aware that we will be tracking the ratio of extractions to restorations and that we expect to see data that reflects not the same as would occur in a private practice but at least at some point a frequency of restorations that compares to the frequency of extractions.
Recommendations 1. Continue efforts to fill the newly created positions, which will be shared by both facilities. 2. Continue to provide a monthly report of both percentages of scheduled patients seen as well as the ratio of extractions to restorations.
12. Care for Pregnant Prisoners Compliance Status: Sustained substantial compliance.
Findings The QI program must continue to monitor, with guidance from the Medical Director, the care of pregnant prisoners.
Recommendations 1. The QI program is to continue to monitor the care of pregnant prisoners.
13. Dietary Allowances and Food Service Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations 1. The QI program should continue to monitor via the dietician the congruence between the actual plated special diets and the dietician’s recommendations for diet substitutions.
14. Health Screening of Food Service Workers Compliance Status: Sustained substantial compliance.
Recommendations None.
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15. Treatment and Management of Communicable Diseases Compliance Status: Partial compliance.
Findings The communicable disease nurse seems to be clearly invested in her responsibilities.
Recommendations 1. As we look for her monthly reports, she must track the number of individuals identified for whom TB screening is necessary each month and, for those patients, she must indicate what was done as part of the TB screening and what could and should have been done if the screening is incomplete. 2. With regard to skin infections, the Medical Director must instruct the nurse practitioners to send the communicable disease nurse a flag with the record attached at the note in which they are addressing skin infections and especially those where presumptive treatment for MRSA occurs. She must report both the presumptively treated cases each month as well as they culture proven MRSA cases each month. The data shows that she has recently led a program to insure that patients who are high risk for TB that have been in the facility are also screened for TB. She plans to also identify patients with hepatitis C and arrange for TB screening of them also. 3. Report the numbers of high risk people each month who are screened for TB and identify where screening should have been done and could have been done as well as reasons for the screening not being completed. 4. Report each month the number of presumptively treated skin infections for MRSA and also culture proven MRSA.
16. Sexual Abuse Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations None.
17. (a) Quality Management Compliance Status: Partial compliance.
Findings We continue to be impressed with the efforts by the quality management nurse who was also responsible for infection control. She has performed several studies in each of the recommended service areas that are covered by this agreement. I have discussed with her in detail how these
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studies could be improved. I continue to request studies for access to care, emergency care, follow up of scheduled offsite services, chronic care, as well as intake with regard to both the adequacy of the performance of the nurse screen as well as the adequacy of the performance of the nurse practitioners during the initial practitioner assessment. For each service, both the timeliness as well as the professional performance must be reviewed. In the cases that we reviewed, although the nurse intake screen was timely, there were frequent records where the initial practitioner assessment was delayed. With the hiring of three new nurse practitioners, the data with regard to timeliness of practitioner initial assessments should dramatically improve. Both the Medical Director as well as the Director of Nursing and the Assistant Director of Nursing should review their respective areas with regard to professional performance improvement.
Recommendations 1. Formal training should be provided to the Quality Improvement Coordinator. 2. Studies must continue to be performed as described in the findings section.
17.(b) Review of Clinical Care by Responsible Physician Compliance Status: Partial compliance.
Findings The new CMO, even though he started less than a week before my visit, has reviewed three records from each practitioner. I discussed those reviews with him and I will not describe those discussions.
Recommendations 1. Before the next visit, he should review the performance of the nurse practitioners with regard to access to care, chronic disease performance, unscheduled service performance, and follow up from scheduled offsite services as well as intake (practitioner initial assessment).
III. Protection from Harm
III.A.5.k Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Sustained substantial compliance.
III.5.l Training of Medical and Mental Health Staff
Compliance Status: Sustained Substantial compliance.
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III.A.1 Suicide Prevention Program
III.A.1.e Privacy Compliance Status: Sustained substantial compliance. III.A.1.f Assessment of Inmates in Detoxification Compliance Status: Sustained substantial compliance. III.A.2 Training of Officer Staff with Regard to Suicide Prevention Training Compliance Status: Sustained substantial compliance. III.A.3 Detoxification Training Program Compliance Status: Sustained substantial compliance.
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Summary of Findings
Although the pace of improvement has been less than anticipated, partly due to turnover and vacancies, I remain quite optimistic, especially with the additions and changes in the leadership team, including nursing and Medical Director. I am looking forward to a substantial breakthrough at the time of my next visit. Clearly, the leadership team has the commitment to provide not just adequate care but excellent care. I will do whatever I can to facilitate their accomplishing their goals.
Respectfully submitted,

RS/kh

R. Shansky, MD Medical Monitor

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Thirteenth Monitoring Report US Department of Justice v. Erie County New York
This report will review the status of the medical program conditions at the time of this thirteenth monitoring visit, which took place from September 25 through September 29, 2017. The medical program is beginning to make more rapid progress as the key positions of leadership are filled and people become comfortable with their responsibilities. I had the opportunity to spend a significant portion of this visit with the recently added Medical Director and he provides not only the knowledge base that is requisite for the responsibilities but also the leadership skills necessary to influence the clinicians and the other staff in a very positive direction. He has accepted the clinical challenges with substantial enthusiasm but has also worked very well with members of the team. One clinician who had been historically problematic has improved substantially just since the time that the new Medical Director has been in the leadership role. This is clearly a reflection of his efforts in this area. Not only does he work well with the other members of the health care team, he works very closely with custody and is cognizant of the need to engage custody when issues, especially of access, arise.
The staffing issues with regard to the medical program have pretty much been resolved, with the County personnel department working closely with the Sheriff’s office to accomplish strategies that allow positions to be filled. At the time of our visit, there were no vacancy issues that we needed to discuss.
There are issues that remain on the table but the leadership team is working together to resolve many of these issues. Some of them have to do with technology problems, meaning the information technology area, such as the inability of the pharmaceutical vendor to interface with the medical records software, particularly with regard to controlled substance prescriptions. However, all are aware of this and one strategy being discussed is hiring a part-time IT trained person to coordinate with the medical record vendor as well as the pharmacy vendor. The medical record vendor is to draft a list of qualifications that such an IT person should possess. This will facilitate the search for this part-time person.
A reflection of the progress that has been made is the fact that four key sections have advanced from partial compliance to substantial compliance since the last visit. This is the result of the leadership team insuring that staff are hired who understand what the responsibilities are.

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B. Medical Care
1. Policies and Procedures Compliance Status: Substantial compliance.
Findings There were 21 policies that were provided to me for my review and approval. Virtually all were approved; however, some clarification was needed from the Medical Director regarding the chronic disease management policy. The aspect that needed clarification was to provide guidance for the nursing staff with regard to what patients were stable and how was that defined. The policies I reviewed were: onsite and offsite services (ambulance services), defibrillator and monitor services, EKG monitor services, health eLink services, manual of administration-nurse coverage plan, provider on call, personnel reporting of FMLA time, chronic disease management, management of hyperlipidemia, management of chest pain, treatment of asthma and chronic obstructive pulmonary disease, chronic disease management-cardiovascular disorders, chronic disease management protocols, hypertension, medication management, controlled substance disposal, management of MRSA/VRE, management of lice and scabies, management of tuberculosis, post-exposure prophylaxis blood/body fluids, and reporting personnel absence. All of those policies were approved, with some clarification requested with regard to the chronic disease management.
Recommendations 1. Complete the clarification with regard to the chronic disease management and forward that to me. 2. Insure that the health care staff understands not only the purpose of each policy but the critical elements housed within each policy.
2. Medical Autonomy Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations None.
3. Privacy Compliance Status: Substantial compliance. This moves into I believe sustained compliance at the next visit.
Findings None.
Recommendations 2

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1. Continue to emphasize the need for patient privacy as well as professionalism in treating patients with dignity.
4. Training of Custody Staff Compliance Status: Sustained compliance. This area has been in compliance for more than 18 months.
Findings None.
Recommendations None.
5. Management of Health Records Compliance Status: Substantial compliance.
Findings Although the Medical Director, who prescribes all controlled substances for the medical program, has to perform a two-step process, he indicates that he has become efficient at it and has no problems with it. He initially orders the medication through Centricity and then orders the medication a second time through the pharmaceutical vendor’s equivalent of Sure Scrips. Maybe the interface between Centricity and the pharmaceutical vendor can be created; however, given the ability to perform controlled substance ordering, I find this is consistent with substantial compliance. Thus, the compliance status of substantial compliance.
Recommendations 1. Before my next visit the correctional health program should identify what kind of local IT resource they need in order to work with the Fusion IT company.
6. Medication Administration Compliance Status: Substantial compliance.
Findings The nursing staff reports that the system is working quite adequately. With regard to the discharge medications, the system used is that inmates are counseled to call a number when they wish to receive discharge medication. Then the prescription is written, forwarded to the provider for authorization and the medication is available at either a Rite-Aid in Alden or a Walgreens for the holding center. There was also a discharge planner added. It appears that only two patients picked up their medications. The QI program should perform a study looking at the number of patients on chronic medications who are released (who have been in 30 days) who call in. It is possible that the counseling may be deficient for the inmates. Then, of those who call in, how many actually pick up the medications? It would be useful if when patients call in, they are
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informed of when the medications are likely to be ready. The QI program must perform a study looking at how many patients were released after 30 days in the system who were released while taking chronic care medications. That is the beginning denominator. Then the number of patients who called in must be captured along with the number of patients who picked up their medications. Each step in the process must be done well in order to achieve a higher adherence rate.
Recommendations 1. Collect the data necessary for release meds based on patients housed greater than 30 days on chronic care meds each month. 2. Also collect the number who call in for their meds and the number who pick up their meds.
7. Access to Care Compliance Status: Substantial compliance.
Findings Progress continues to be made with regard to the sick call system. Slips are picked up daily and they are triaged daily. Patients who present with symptoms are seen almost invariably within 48 hours. The quality of the nursing performance has improved. These are the result of feedback from the nursing leadership team and the improvement reflects the beginnings of an effective quality improvement program. The rate of timeliness was always greater than 95%.
Recommendations 1. The DON and ADON must continue to provide feedback on a regular basis to the nurses performing sick call. 2. This must be done via a face-to-face discussion of records having been reviewed, with an emphasis on strategies to improve performance.
8. Emergency Care Compliance Status: Sustained substantial compliance.
Findings We reviewed several records of patients sent to the hospital. The offsite encounters were present timely and the follow up was timely and appropriate.
Recommendations 1. The QI program should continue to monitor these unscheduled offsite service encounters for completeness of documentation and appropriateness of follow up.
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2. In addition, the Medical Director and Director of Nursing and ADON should monitor the onsite responses that did not result in sendouts to insure that decisions are being made appropriately.
9. Follow-Up Care Compliance Status: Substantial compliance.
Findings We reviewed several records and found that each appointment was achieved within a reasonable timeframe, a visit took place, the documentation was available timely and the follow up was both timely and appropriate.
Recommendations 1. The QI program should continue to monitor the timeliness of the scheduling of appointments using routine requests as acceptable if the appointment occurs within 30 days. If not, the Medical Director should be notified and document whether or not an effort was made to arrange an earlier appointment. 2. The QI program should monitor the follow up of scheduled offsite services and insure that 100% of the time appropriate follow up occurs timely.
10. Chronic Disease Compliance Status: Partial compliance.
Findings We reviewed several records both from intake and chronic disease records. We found that there was some confusion as to when to perform the initial chronic care visit. This visit can be accomplished at the time of the practitioner initial assessment, and we reviewed with the clinicians how that should be done, with both forms being utilized and the duplicative aspects of the forms filled out for the practitioner initial assessment in a manner that refers to the initial chronic care form. We still found a few delays in initial chronic care visits as well as an occasional lack of assessment of degree of control. This was also reviewed with the clinicians and it is my belief that they came away with a better understanding of how to document this with regard to patients they have seen. The Medical Director has reviewed their care and clearly some of the improvement must be attributable to his efforts.
Recommendations 1. The Medical Director should provide a review of the common chronic diseases and where indicated, provide guidance as to the types of responses needed for particular blood pressure and blood sugar elevations as well as high risk blood pressure and fingerstick results that create risk to the patient.
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2. Continue the professional performance enhancement review program of at least four or five records per clinician per month until performance is completely acceptable and then it may be reduced to once per quarter.
11. Dental Care Compliance Status: Partial compliance.
Findings Although there was an improvement in the number of restorations performed at each site, the ratio of extractions to restorations could be improved. A full-time dental assistant has been hired; however, there are still two part-time dentists in place, one who works three days a week at the correctional facility and one who works two days a week at the holding center. We have seen improvements across the country as dentists become more comfortable performing restorations on mouths that have reasonably good dentition.
Recommendations 1. Continue to fill the dentist position with one full-time person. 2. Continue to provide a monthly report of both percentages of scheduled patients seen as well as the ratio of extractions to restorations.
12. Care for Pregnant Prisoners Compliance Status: Sustained substantial compliance.
Findings The QI program continues to monitor, with guidance from the Medical Director, the care of pregnant prisoners.
Recommendations 1. The QI program is to continue to monitor the care of pregnant prisoners.
13. Dietary Allowances and Food Service Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations 1. The QI program should continue to monitor, via the dietician, the congruence between the actual plated special diets and the dietician’s recommendations for diet substitutions.
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14. Health Screening of Food Service Workers Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations None. 15. Treatment and Management of Communicable Diseases Compliance Status: Substantial compliance.
Findings The communicable disease nurse reported on data regarding both tuberculosis and skin infections.
Skin Infections In the four months since the last visit, 82 presumptive cases of MRSA skin infections were treated and six culture-proven cases were treated. Most of these both presumptively treated and culture proven cases came through the intake process. There was only one difficult case which required additional antibiotics. They are continuing to monitor skin infections on a monthly basis.
TB Control They screen people who fit the high-risk category for TB and tested 54 in June, 46 in July, 68 in August and 63 in September. When there is a positive skin test they get a chest x-ray. They have had no evidence of x-ray changes consistent with tuberculosis. They had one new positive skin test and that patient had a negative chest x-ray but was not provided counseling by a clinician. That should have happened with regard to his options.
HIV Testing They have about 100 patients per month who request HIV tests. When patients come in who are known positive and under treatment, they are seen within five days and their degree of control is documented. The degree of control is based on viral load and CD4 count.
Overall, the communicable disease program seems to be much better organized and it is a strong component of the QI program.
Recommendations 1. Continue to investigate any potential outbreaks or changes in longstanding data.
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16. Sexual Abuse Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations None.
17. (a) Quality Management Compliance Status: Partial compliance.
Findings We reviewed the minutes of several meetings. The minutes read like anecdotal information. There is not any structure to them such as new issues, old issues, studies performed, etc. I discussed with the QI coordinator the need to provide more structured meeting minutes so that staff can read and learn from them. Also, the emphasis should be on the use of data. Data drives analysis and therefore improvement strategies. They did studies regarding the following services:
1. An Intake Study They found 3% of nursing levels were under-acuitized, meaning they were categorized as a 3 rather than a 2 or a 2 rather than a 1. This has clinical implications but the nurse was counseled and a repeat study will be performed in a few months. They did find, which we confirmed, that transfers to the correctional facility are not seen timely with regard to intake parameters. The nurses at the correctional facility feel that the clock is reset after they receive them. That is definitely not true. The intake occurs at the holding center and they are held to the timeframes for the holding center.
2. Sick Call I reviewed 15 sick call slips that were submitted in September with regard to the timeliness of visits. Because the transfer to ECCF usually occurs early in the morning, patients who are scheduled to be seen at the holding center can be seen the same day at the correctional facility. This needs to be put in place. On the other hand, when patients are not transferred and they submit a slip in house, 98.2% are seen within 24 hours of receipt. There was a slight dip in the number seen; it became 97.98% in August, but it was over 98% in September. This indicates improvement. The number of unscheduled sendouts has been substantially reduced over the last few months. On the other hand, all who do get sent out are seen by a primary care clinician within 48 hours. There has not been a study of scheduled offsites, but that will be done before the next visit. There also has been no study of grievances.
3. Medications
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With regard to the timeliness of receipt of chronic care medications from ordering to receipt, 36 out of 45 patients received the medication within 24 hours. Six were within 48 hours and three were either released or the medication was discontinued. There was also a study performed to determine if there is a delay in transferring medications to ECCF and why. That study revealed that the E kit was not being used. The practitioners need to talk with their patients to explain that for many medications the medications will start the following day. This also helps with the EMAR because the day of order suggests that the medication is beginning the same day as ordered even though the medication does not arrive until the following day. The date of initiation of medications should be changed to the following day so that the order of the first of the month should read, “Patient to begin medication following day.” The nurses also use the EMAR to review overdue meds and make sure that those meds which are chronic are reordered.
4. Pregnant Patients There was also a study on the pregnancy care to determine whether care was consistent with ACOG guidelines. All patients were ordered prenatal vitamins within a few days. Six had obstetric appointments within one week, nine had an OB appointment within two weeks. One patient had an OB visit just prior to being incarcerated and one patient was greater than two weeks but less than one month. Sixteen patients had initial provider visits within five days.
5. Chronic Care They also looked at chronic care. There were 77 patients with asthma but only 36 on medication. This may reflect the impact of childhood asthma and Dr. Barsoom will review the list and the records and repeat a review of the chronic care list. In the viral clinic were 67 patients with either HIV or hepatitis C. Fifty-six of the 67 had a PPD placed; two refused, one inmate was uncooperative. One had a positive PPD but a negative chest x-ray and was asymptomatic. There were 29 patients with elevated cholesterol; one was forwarded to the Medical Director. Of the hypertension patients, there were 104, although one was not on any medications but his blood pressure was controlled. Eighty-one were seen within five days and seven were diagnosed after intake. Many of those who were seen late had been transferred to the correctional facility. Overall, there was dramatic improvement in both the comprehensiveness and the use of data to analyze issues. The program appears to be in good hands and must continue to review both process issues as well as professional performance.
Recommendations 1. Perform intake studies looking at the appropriateness of the leveling as well as the timeliness of the practitioner initial and the initial chronic care visit. Also perform intake studies looking at the time of receipt of medication for patients assessed as needing medications during intake. 2. Continue to review the timeliness as well as the professional performance with regard to the sick call assessments.
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3. Continue to revise the chronic care list, particularly with regard to asthma. A study needs to be performed with regard to medication discontinuity for patients in the chronic care program. Also, a study should be done using the computerized record with regard to the percent of patients in for greater than a month who are in good control by disease.
4. Continue to review the care of pregnant patients with regard to the timeliness of the initial assessment by both OB and primary care providers as well as consistency with ACOG guidelines.
5. With regard to medications, review the discharge medications with regard to people in for greater than 30 days who are released on chronic care medications, what percent call in, what percent actually pick up their medications. Also review the issue of three refusals in a row and the timeliness of contact with a clinician. Continue to review the unscheduled offsites with regard to the timeliness and appropriateness of the initial assessment and the follow up. With regard to scheduled offsites, review the timeliness of the initial appointment and the timeliness of the follow up and the appropriateness of the follow up. With regard to grievances, review the timeliness of response, the percent of grievants who are in fact afforded a face-to-face interview and what percent are resolved at the time of the face-to-face interview.
17.(b) Review of Clinical Care by Responsible Physician Compliance Status: Partial compliance.
Findings The recently hired CMO has begun the review of the care provided by the clinicians with an eye to improving their performance. He has worked well with them and I have provided him some comments with regard to how he might improve what he does with them in terms of providing more specifics on the form. Overall, I am very optimistic about the program.
Recommendations 1. The Medical Director should provide more specific improvement strategies on the forms he utilizes.
III. Protection from Harm
III.A.5.k Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Sustained substantial compliance.
III.5.l Training of Medical and Mental Health Staff
Compliance Status: Sustained Substantial compliance.
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III.A.1 Suicide Prevention Program
III.A.1.e Privacy Compliance Status: Sustained substantial compliance. III.A.1.f Assessment of Inmates in Detoxification Compliance Status: Sustained substantial compliance. III.A.2 Training of Officer Staff with Regard to Suicide Prevention Training Compliance Status: Sustained substantial compliance. III.A.3 Detoxification Training Program Compliance Status: Sustained substantial compliance.
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Summary of Findings
It was clear to me that this program has the right leadership team in place. Therefore, they have developed a momentum that, barring any critical losses, should propel them much closer to substantial compliance at our next visit.
Respectfully submitted,

RS/kh

R. Shansky, MD Medical Monitor

12

 
 Case 1:09-cv-00849-WMS-JJM Document 315 Filed 06/27/18 Page 1 of 10
Fourteenth Monitoring Report US Department of Justice v. Erie County New York
This monitoring visit took place from April 10 through the exit conference on April 13, 2018. Although I have been impressed with the work of the current Chief Medical Officer to review and educate, I was disappointed to learn that within the next quarter the current Chief Medical Officer will be moving on. I did have the opportunity to meet his successor and although we did not have an in-depth discussion, I feel that he does bring a relevant background and interest in correctional health. We did not go into details about his expectations, but I do feel that he will bring a commitment to the tasks he becomes responsible for. I am hoping that the turnover of Chief Medical Officer does not result in a setback for the monitoring. However, if that is what I find, so be it.
The staffing issues consist of the Legislature having agreed to award the correctional health program with 10 part-time RN positions who can work a maximum of 19 hours per week each. They also awarded four part-time LPN positions who also can work no more than 19 hours per week each. There are five nurse practitioner positions, one of whom has already started and one of which is vacant. All the other correctional health positions continue to be filled.
I had the opportunity to review a request for proposal for an IT consultant and it seems to have the appropriate requirements. This position is meant to work not only with the correctional health and forensic mental health staff but also with the Fusion IT consulting company. This person will be responsible for developing new screens/encounter forms and reports for both medical as well as mental health. This is the last element yet to be put into place to support the electronic medical record.
To summarize the monitoring improvements, both dental care as well as quality management (including part “b” re: review of clinical care) have achieved, for the first time, substantial compliance. In addition, management of health records, access to care, and treatment and management of communicable diseases have achieved substantial compliance twice. There was a regression on the section of follow up care, which went from substantial compliance back to partial compliance. This was related to an incorrect review of records which resulted in two unnecessary services, one invasive. Additionally, the chronic disease care and review of clinical care by a responsible physician sections remains at partial compliance. Thus, there are only three sections at partial compliance: follow up care and chronic disease care and review of clinical care by a responsible physician. Policies and procedures, medical privacy, and medication administration achieved sustained substantial compliance during this visit. Medical autonomy has been in sustained substantial compliance; it will continue to be evaluated under the new Chief Medical Officer. Emergency care as well as care for pregnant females, dietary

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allowance and food service, health screening of food service workers, along with sexual abuse, remain in sustained substantial compliance.
B. Medical Care
1. Policies and Procedures Compliance Status: Sustained substantial compliance.
Findings The policies and procedures are in sustained substantial compliance, which is to say that there is a basic, solid infrastructure of policies and procedures which may, on occasion, need some updating. The policies and procedures have also been organized to coordinate with the National Commission on Correctional Health Care Standards and this will be of major help in achieving accreditation. The benefit of the process at Erie County is that all policies have been promulgated with involvement of custody staff so that there is ongoing input from custody.
Recommendations 1. Ensure that the health care staff understands not only the purpose of each policy but also the critical elements housed within each policy. 2. Continue to monitor and update policies as need arises.
2. Medical Autonomy Compliance Status: Sustained substantial compliance.
Findings Although the current Medical Director is about to depart, we will review this section because of the turnover of Medical Directors and the new Medical Director will have to develop relationships with custody. He has already worked with the sheriff’s department, so I do not anticipate any issues in this area.
Recommendations None.
3. Privacy Compliance Status: Sustained substantial compliance.
Findings We did observe sick call by an RN in ECCF one morning and the environment did afford the patient with adequate privacy.
Recommendations
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1. Continue to emphasize the need for patient privacy as well as professionalism in treating patients with dignity.
4. Training of Custody Staff Compliance Status: Sustained compliance. This area continues to be in sustained compliance.
Findings None.
Recommendations None.
5. Management of Health Records Compliance Status: Substantial compliance.
Findings As I indicated in the introduction, the correctional health director has developed an RFP for an IT consultant using specifications that are designed to meet the needs to work with the electronic medical record. With this last piece in place, ultimately the program should be on solid footing for the foreseeable future.
Recommendations 1. Select a suitable candidate to work with the correctional health staff and with the Fusion IT consultant.
6. Medication Administration Compliance Status: Substantial compliance for the third time; this demonstrates sustained compliance.
Findings With regard to the discharge medications, the system used is that inmates are counseled to call a number when they wish to receive discharge medications. Then the prescription is written, forwarded to the pharmacy provider for authorization and the medication is available at either a Rite-Aid in Walden or a Walgreens for the holding center. The number of patients who have received medications has increased and I have encouraged the quality improvement coordinator to focus on performing a study of who gets released while on chronic medications, how many are counseled prior to their release about calling in, and then how many are actually picking up the medications. This is an important component of reentry success and therefore it may reduce, to some extent, recidivism.
Recommendations
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1. Collect the data necessary for release medications based on patients housed greater than 30 days on chronic care medications each month.
2. Also collect the number who call in for their medications and the number who pick up their medications.

7. Access to Care Compliance Status: Substantial compliance.

Findings We reviewed 10 records and all of the patients were seen timely and the professional performance seemed appropriate as needed. An appropriate number of patients were referred to a higher-level provider, thus ensuring that the nurse sick call does not result in a blockage to a higher level of care.

Recommendations 1. The QI program should involve several nurses in reviewing sick call performance and timeliness should be reviewed by the QI coordinator.

8. Emergency Care Compliance Status: Sustained substantial compliance.

Findings Although this was in sustained substantial compliance, we reviewed a few records to insure that the emergency services provided patients an appropriate service. The records demonstrated timely and appropriate responses and follow up.

Recommendations: None.

9. Follow-Up Care Compliance Status: Partial compliance.

Findings

Patient #

was scheduled for a renal ultrasound in November 2017. He had complained of

back pain and the ultrasound was ordered. Through the use of HEALTHeLINK, the normal

ultrasound was performed on 11/22/17. Although he had a chronic care follow up visit on

12/13/17, three weeks after the procedure, there is no comment on the results of the ultrasound.

Thus, there was no post-procedure face-to-face assessment. Also problematic was a patient, ,

who was scheduled to have a cystoscopy with stent removal on 1/3/18. On 1/16/18, the

cystoscopy was actually performed. In reviewing the HEALTHeLINK records, what we found

was a document from the hospital that indicated the stent had been removed at a hospital

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procedure. On the cystoscopy on 1/16, no stent was found. On a non-contrast CT scan performed on 1/30/18, no stent was found. There was an earlier abdominal x-ray which clearly demonstrated an absence of a radiopaque foreign body. This is particularly troubling because the patient was subjected to two different procedures when those could have been avoided if during the clinician’s review of HEALTHeLINK she had observed the exam date that was recorded in the hospital. The stent was removed on 10/27/17. There was a KUB listed as 11/2/17 also that showed no radiopaque foreign body. These two cases result in a movement back to partial compliance.
Recommendations 1. Train the staff such that they always look for procedure reports which have the exam date clearly written.
10. Chronic Disease Compliance Status: Partial compliance.
Findings We reviewed several records of patients with chronic problems; most had some issues. The most problematic patient was ., a 48-year-old female who arrived on 1/4/18. She had diabetes type 2 and used a C-PAP machine. She was receiving both Lantus insulin and iron pills, although the iron was on a subtherapeutic dose. She also had hypertension and asthma. She refused some of her finger sticks and the patient, who had a hemoglobin of 7.8, was put on Depo-Provera for menorrhagia, but it was not clear that she in fact had excessive bleeding. This is a difficult case because of so many chronic problems, but also because this patient needs to have a close relationship with her provider. Even though the first visit resulted in an assessment of fair control, the patient was given an appointment in three months.
In the other records, we found problems with an intake finger stick being close to 600, yet no involvement of the Chief Medical Officer. Also, hypertension assessed as fair control despite a normal blood pressure, and finally a patient with a history of cardiac stents in 2015 along with a history of hypertension and there was no blood pressure monitoring ordered, which we would find as an inappropriate response to a patient who might have serious heart issues.
Recommendations 1. The Chief Medical Officer should review with the practitioners their care, particularly of complex patients. 2. Review with all of the clinicians the assessment of degree of control and the linkage of the degree of control to the urgency of the follow up visit.
11. Dental Care
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Compliance Status: Substantial compliance.
Findings The access issues have resolved, and, in addition, the dentist is performing an increasing number of restitutions as opposed to selectively performing extractions. These issues support an assessment of substantial compliance.
Recommendations 1. Continue to report to the QI program monthly totals from each facility regarding extractions versus restitutions.
12. Care for Pregnant Prisoners Compliance Status: Sustained substantial compliance.
Findings Despite the compliance status, we reviewed three records and we found the care consistent with national guidelines and appropriate to each patient’s needs.
Recommendations None.
13. Dietary Allowances and Food Service Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations None.
14. Health Screening of Food Service Workers Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations None.
15. Treatment and Management of Communicable Diseases Compliance Status: Substantial compliance.
Findings The QI coordinator reviewed with me a report on skin infections which indicates the problem is stable and not excessively frequent. She also reviewed the 16 flu cases that occurred from
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January through March and indicated that to reduce symptoms Tamiflu was used. There are two sexually transmitted diseases monitored, both gonorrhea and chlamydia. We discussed HIV testing, and finally, she mentioned the TB testing on entry, all of which were consistent with expectations.
Recommendations 1. Continue to, although maintaining data monthly, perform an infection control report to the QI committee on a quarterly basis.
16. Sexual Abuse Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations None.
17. (a) Quality Management Compliance Status: Substantial compliance.
Findings I was extremely impressed with the activities under the QI program. She indicated that she had performed studies in several of the areas of the agreement. However, she did not perform a study of the intake process.
1. Sick Call I suggested that she perform a study of timeliness and professional performance of sick call for the last nine months. This will assist the program in achieving accreditation. Also, with regard to sick call, she indicated that a total number of 1569 slips were collected, and they broke out the symptomatic and non-symptomatic numbers. However, they used as their denominator, instead of the total number of symptomatic requests, the total number of requests. Since the only requirement is for symptomatic requests to be assessed face to face within 48 hours, the correct denominator for timeliness is only the symptomatic requests.
2. Medical Management She performed a study of timeliness from order to receipt and most patients overwhelmingly were receiving their medications within 24 hours. She indicated there was also a pharmacy audit of the medication room by an outside pharmacist and this was done at both sites. There was a separate review of mental health medications. She did find a problem for injections not scheduled for the day of the injection and that the problem was the order appears to require the same day injection even though the date of the order is probably a day or two prior to the
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injection needing to be provided. She also did a study of release medications and I indicated that she should take the number of patients each month housed for at least 30 days and released while on chronic medications, then take the number each month who were released on chronic medications who called the pharmacy. Finally, determine the number each month on chronic medications released who called the pharmacy and picked up their medications.
3. Dental There were 102 extractions in the last five months at ECCF and a lesser number of restorations at ECCF. There were 65 restorations for ECHC and a larger number of extractions at ECHC. These figures are for the last five months.
4. Pregnancy There were 29 pregnancies since September 2017. The average age was 27, 10 of whom were sent to ECMC for detoxification, so they had been on various substances. There were a few weekenders and those accounted for the patients who did not receive prenatal vitamins. The number of patients seeing their obstetric consultant in the first week were five, in the second week six patients, and in the third week, four patients. Some of the others were released. Most see the nurse practitioner within one or two days.
5. Chronic Care a. Asthma: Studies were done with regard to asthma, but I am encouraging her to perform a study of the nebulization treatments and whether or not there is a pre and post treatment peak flow documented. b. Diabetes: For diabetes there were 44 enrolled and the study looked at assessed control. They have loosened up the guidelines to less than an A1C of 7.5 is consistent with good control. I indicated that that may be satisfactory but 7.5 to 9.0 should be the cutoff for fair control and anything greater than 9.0 with an A1C should be poor control. I suggested that she perform a study looking at the relationship of urgency of follow up to the degree of control. All too often, independent of how well controlled they are, they get 90 day follow ups. c. Hyperlipidemia: There was a study of patients on treatment. Nineteen of 31 that are on treatment had a total cholesterol of less than 209. That is 61%. d. Seizure Disorder: In a study of 17 patients in the seizure clinic, three did not meet criteria for medications. Thus, 14 patients all received medications and they received those medications within 24 hours. e. HIV: Fifty-eight patients currently are known to be HIV positive; four are outliers. One had a TB test that was not read, one refused, and one was released. Forty-six of 50 were placed and read and this is 92%. f. Cardiac: One hundred and six of the patients were seen within five days of intake for the chronic care assessment. This is 92% when you use a denominator of 111.
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The QI committee meets weekly. The minutes need to be more educational for staff who were not able to attend the meeting. I am suggesting that she do a detox study looking at whether monitoring is performed for the entire time and if any monitoring is missed. She needs to do a follow up care study to determine whether the clinicians are accurately identifying the exam date so as to prevent avoidable liability. Also, I indicated that she needs to perform an intake study looking at the completeness and timeliness of intake as well as the professional performance, including the appropriateness of the acuity status as well as the timeliness of the follow up by the practitioner. I was impressed that she has a form that allows staff to suggest areas for study, i.e., potential problem areas.
Recommendations 1. Perform a study of completeness and timeliness of nursing intake as well as professional performance of the acuity scale. 2. Look at the time of the practitioner intake and compare with the acuity scale for appropriate timeliness. 3. Perform other studies recommended in the body of the QI section.
17.(b) Review of Clinical Care by Responsible Physician Compliance Status: Substantial compliance.
Findings I reviewed Chief Medical Officer Dr. Barsoom’s reviews of the clinicians and overwhelmingly he was making educational comments and suggestions to the clinicians. Even in a record that he thought was well-documented, he often suggested different strategies. Both the Chief Medical Officer and his successor need to understand that these reviews are exclusively educational. If a supervising physician reviews a record and merely comments along the lines of “good record,” my impression will be that the clinician did not learn anything from the supervising physician’s review. The review should ensure that care is done well and make suggestions. Only if repeated counseling and educational efforts go unheeded and unimplemented is there the possibility of disciplinary activities.
Recommendations 1. Continue to utilize an educational approach to the clinician review. 2. Identify where patients are having problems adhering to the recommendations and those patients need to be seen more frequently, sometimes as much as weekly.
III. Protection from Harm
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III.A.5.k Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Sustained substantial compliance.
III.5.l Training of Medical and Mental Health Staff
Compliance Status: Sustained Substantial compliance.
III.A.1 Suicide Prevention Program
III.A.1.e Privacy Compliance Status: Sustained substantial compliance.
III.A.1.f Assessment of Inmates in Detoxification Compliance Status: Sustained substantial compliance.
III.A.2 Training of Officer Staff with Regard to Suicide Prevention Training Compliance Status: Sustained substantial compliance.
III.A.3 Detoxification Training Program Compliance Status: Sustained substantial compliance.
Respectfully submitted,

RS/kh

R. Shansky, MD Medical Monitor

10

 
 Case 1:09-cv-00849-WMS-JJM Document 318 Filed 11/29/18 Page 1 of 8
Fifteenth Monitoring Report US Department of Justice v. Erie County New York
This monitoring visit occurred on October 2-5, 2018. I will take this opportunity to review some of the major areas discussed during this visit.
First of all, with regard to staffing, as I reported in my previous report the legislature had approved 10 part-time positions for RNs and four part-time positions for LPNs. A problem was identified in attempting to fill some of these part-time positions. The problem identified was that because the part-time positions were offered to health care staff who have many alternative options to working in a jail facility, the timeframe that the personnel machinery worked in was too slow for the potential hires and therefore several hires were lost even though they were found suitable. We met with Chief John Greenan, Chief of Administration for the Erie County Sheriff’s Office. He indicated to me that a day earlier he had met with the person responsible for hiring activities and indicated that the delays were not tolerable. Fortunately, we had sent the list of current applicants back to this personnel overseer and she provided a hire date within a matter of hours. We will be monitoring this very closely so that the positions get filled expeditiously and potential employees are not lost to alternative work options.
The second concern addressed was IT issues. The leadership team had become frustrated with the response of Fusion, the IT consultants on Centricity, for lack of responsiveness. I had talked to the president of Fusion for quite some time about assigning a responsible person to Erie County to facilitate improvements to the system. Fortunately, Fusion finally did assign a person and things have been working quite well ever since. He has a constructive relationship with the Centricity liaison working for the Sheriff’s Department. The current outstanding issues relate to the following items:
1. The scanning of barcodes and medications has not been implemented. We called Fusion and I indicated that I want this problem “fixed.”
2. Additionally, there are some changes to encounter forms which the staff identified as needing to be implemented and also a few that I identified, including the presence of a pain scale on the nurse intake form and it should be part of the vital signs form.
3. With regard to the chronic care forms, the practitioners should not have to open the provider initial chronic care form in order to access the provider follow-up form. That must be a separate identifiable provider follow-up form in the catalogue of forms that must be available to all practitioners.
4. There are minor changes to a few of the practitioner or other encounter forms that Erie County staff have communicated to the assigned member of the Fusion team.

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I also was encouraged by the creation of a “CMO review note” to be used for cases in which the CMO wants to summarize issues with the clinician on a particular patient.
Erie County is one of the jails that began a Vivitrol program in 2017. Since then, 21 patients received Vivitrol and four currently are potential candidates. These patients are housed in one unit and there are several that are awaiting counseling. This is a program that aims to impact the opioid epidemic in the community. We hope that it is successful.
I continue to be impressed with the quality improvement program and the CMO involvement in review and feedback to the clinicians.
B. Medical Care
1. Policies and Procedures Compliance Status: Sustained compliance.
Findings Sustained compliance on policies and procedures does not mean that there aren’t some new policies and procedures that will be created or will be necessary. In addition, there may be changes needed to existing policies and procedures. However, there is a fundamental set of policies and procedures which, if complied with, forms the basis of a good medical program.
Recommendations 1. Continue to review existing policies and procedures for needed changes or alterations.
2. Medical Autonomy Compliance Status: Sustained compliance.
Findings None.
Recommendations None.
3. Privacy Compliance Status: Sustained compliance.
Findings None.
Recommendations 2

Case 1:09-cv-00849-WMS-JJM Document 318 Filed 11/29/18 Page 3 of 8
None.
4. Training of Custody Staff Compliance Status: Sustained compliance.
Findings None.
Recommendations None.
5. Management of Health Records Compliance Status: Sustained compliance.
Findings See the introductory comments for relevant sections.
Recommendations None.
6. Medication Administration Compliance Status: Sustained compliance.
Findings See introductory comments with regard to relevant sections.
Recommendations None.
7. Access to Care Compliance Status: Sustained compliance.
Findings The QI program reviewed data on access to care and the data showed that 843 records of patients requesting assessment for symptoms were reviewed. Eight hundred forty were reviewed in a face-to-face assessment within 24 hours. There were three outliers. This is a compliance rate of 99.3%. Thus, in the study, timeliness was not a factor. On the other hand, we reviewed five records for professional performance and in each of them the performance by the nursing staff was good to excellent with regard to both conscientiousness and with regard to follow up.
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Recommendations None.
8. Emergency Care Compliance Status: Sustained compliance.
Findings We reviewed several records of patients experiencing emergency send outs. In all of the records there was appropriate timeliness of access to services, appropriate professional performance, appropriate timeliness of send out, and appropriate follow up when they returned, including the presence of offsite service records.
Recommendations None.
9. Follow-Up Care Compliance Status: Substantial compliance.
Findings This is an area which regressed at the last visit because of patient safety issues. We were pleased to find that all the records we reviewed contained the appropriate decision making, access to off site service documents in a timely fashion, and appropriate follow-up care. Thus, the clock is being reset on substantial compliance.
Recommendations None.
10. Chronic Disease Compliance Status: Provisional substantial compliance.
Findings Unfortunately, there were some records in which the degree of control was not assessed and yet the care was responded to appropriately. I met with the practitioners and discussed chronic disease assessment as well as chronic disease follow up. I explained the deficiencies I used to see in records throughout the country, on the basis of clinicians treating or approaching chronic care in the same way that they approached acute care. I emphasized that part of chronic care management is enlisting the patients to do what is in their best health interest. I am assigning provisional status for this because I have confidence in both the quality improvement program and the CMO review of clinician care. I believe that the problem will be addressed between this
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visit and the next and that the outcome I will see will be consistent with that outcome. However, if I do not find that, the program will suffer the consequences.
Recommendations 1. Continue to review practitioners’ professional performance of the assessments and the plan of care, and provide feedback to the clinicians where indicated.
11. Dental Care Compliance Status: Provisional substantial compliance.
Findings I met with the new dentist who started a few days before our inspection. She appeared to be conscientious and concerned about her patients’ dentition. I indicated to her that I will be looking at monthly reports of restoration to extraction ratios and that I expected at some point they would reach the 1:1 level. I am giving this provisional substantial compliance in part because a change in personnel is not a reason to downgrade and I can monitor the progress that is being made.
Recommendations 1. Continue to report to the QI program monthly totals from each facility regarding extractions versus restitutions.
12. Care for Pregnant Prisoners Compliance Status: Sustained compliance.
Findings None.
Recommendations None.
13. Dietary Allowances and Food Service Compliance Status: Sustained compliance.
Findings None.
Recommendations None.
14. Health Screening of Food Service Workers
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Compliance Status: Sustained substantial compliance.
Findings None.
Recommendations None.
15. Treatment and Management of Communicable Diseases Compliance Status: Substantial compliance.
Findings I have been favorably impressed with the person who is assigned to the quality improvement activities and is also the infection control nurse. She is particularly productive. She performed a five month study from May through September with regard to all patients in relevant categories for whom TB screening was required. There were, in those five months, 527 patients who were tested and were found to be negative. Six were tested and found to be positive. All of the positives had appropriate chest x-rays, all of which were negative. We are aware that the Centers for Disease Control categorizes the homeless as a high risk population and they recommend that identified homeless patients should be screened for TB. The communicable disease nurse indicated that it is difficult to determine homeless as a status. I would recommend working with custody to make that determination so that the homeless could be included in patients to be tested.
Recommendations 1. Work with custody in order to appropriately identify patients who fit into the category of homeless.
16. Sexual Abuse Compliance Status: Sustained compliance.
Findings None.
Recommendations None.
17. (a) Quality Management Compliance Status: Substantial compliance.
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Findings I was especially impressed with the breadth of the quality management program. I have already referred to the sick call study and the TB study. A third area was medication management. The QM program reviewed medication availability for chronic medications on intake and found that 3% of the 87 records reviewed did not receive chronic medication within 48 hours. The first 24 hours is spent verifying the legitimate existence of a prescription and the second 24 is based on the order from the pharmacy and the dispensing by the pharmacy and the receipt by the patient. Of 195 records reviewed, 87 were for chronic care medications. In the area of medication management, there was also a study on discharge medications. Of the study, which was performed on 35 patients released on chronic care meds, only three patients called the pharmacy on release and all three picked up their meds. I encouraged her to perform a new study that looks at how many patients are counseled regarding the necessity for patient follow up on chronic medications in the community.
There were nursing professional performance reviews of sick call and nursing professional performance reviews during medication administration.
There is also very good tracking of pregnancies and timeliness of access to services, and where the service did not meet the definition of timely, whether there was a legitimate explanation for the delay.
Finally, there were several chronic care studies that looked at diabetes care, seizure care, hypertension care, and HIV care. For diabetes care, 13% incorrectly assigned the degree of control for their diabetes. In all of these cases the care was considered appropriate. A look at seizures and asthma revealed probably most of the patients should not be enrolled in the clinic because they do not have a seizure disorder which is chronically impactful.
She also looked at the send outs from both ECHC and ECCF and a consistent pattern was noted for each facility.
The timeliness of access to documents that were necessary in order to follow up was also reviewed.
Recommendations 1. Perform a study regarding documentation of counseling the patients with regard to the importance of chronic care medications in the community and relate that study to the study of who called and who picked up medications.
18. CMO Review of Practitioner Service (17.b)
7

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Compliance Status: Provisional substantial compliance.
Findings We reviewed with the new CMO his involvement in the review of the practitioner care. I was impressed by the breadth of the services and suggested a few things to him. I suggested that he infiltrates in his comments to clinicians not only the potential opportunities for improvement that he found but also those things that were done very well that need to be reinforced. I am satisfied with the QI program as well as the CMO review of practitioner care, such that I am willing to assign provisional substantial compliance because I believe that the program has the right foundation to achieve substantial compliance in all aspects. The question is, has the program had sufficient time to impact in positive ways.
III. Protection from Harm
III.A.5.k Training of Officers with Regard to Sexual Abuse and Policy on Handling Sexual Abuse
Compliance Status: Sustained substantial compliance.
III.5.l Training of Medical and Mental Health Staff
Compliance Status: Sustained Substantial compliance.
III.A.1 Suicide Prevention Program
III.A.1.e Privacy Compliance Status: Sustained substantial compliance.
III.A.1.f Assessment of Inmates in Detoxification Compliance Status: Sustained substantial compliance.
III.A.2 Training of Officer Staff with Regard to Suicide Prevention Training Compliance Status: Sustained substantial compliance.
III.A.3 Detoxification Training Program Compliance Status: Sustained substantial compliance.
Respectfully submitted,
R. Shansky, MD Medical Monitor
8

 
 Case 1:09-cv-00849-WMS-JJM Document 303 Filed 01/11/17 Page 1 of 14
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
November 20, 2016
To: Michelle Parker, Esq. First Assistant County Attorney Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. Trial Attorney, Special Litigation Section U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. (PHB) Washington, D.C. 20530
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, I site visited the Erie County Holding Center (ECHC) and the Erie County Correctional Facility (ECCF) during October 20, 2016. Ronald Schoelerman, LMSW (Director of Intensive Adult Mental Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this draft report included review of the following documents:
1. the Summary of Levels of Care Qualitative Review report (see Attachment A), 2. minutes of the suicide prevention leadership group meeting and health/mental health
review subcommittee meetings from April-August 2016, 3. minutes of the pharmacy and therapeutic committee meetings, 4. agendas and minutes from April 2016-August 2016 of the Correctional Oversight
Committee, 5. Constant Observation Database Information from May 2016-August 2016, 6. Crisis Bed/Constant Observation Trending Reports from July-August 2016, 7. data re: crisis stabilization and transitional unit bed usage at ECMC, 8. a NYS Commission of Correction report re: the 2012 death of Mr. RM, and 9. other relevant QI audits/studies.
During the site visit, I had the opportunity to meet with the following persons:

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1. Michael Reardon (First Deputy Superintendent/Compliance), 2. John Rodriguez (First Deputy Superintendent), 3. Ronald, Schoelerman, LCSW (Director of Intensive Adult Mental Health Services), 4. Christa Cutrona, R.N., M.S.N. (Director of Correctional Health Division), 5. Crystal Quinn, R.N., B.S.N. (Assistant Director of Nursing), 6. Daniel Antonius, Ph.D. (Director, Division of Forensic Psychiatry, University at
Buffalo), 7. Evelyn Coggins, M.D. (Chief Psychiatrist, ECFMH), 8. Shawntel Davis, LMSW, 9. Danielle Crowley, LCSW, and 10. Wanda Garcia, LMSW.

Overview

Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).

Relevant statistics included the following:

April-01-2016 through September-30-2016

Month

ECHC

April

517

May

522

June

526

July

529

August 533

September 573

ECHC MFC 638 638 638 638 638 638

ECHC MFC 81.03% 81.81% 82.44% 82.91% 83.54% 89.81%

% ECCF
681 690 686 698 700 720

ECCF MFC 794 794 794 794 794 794

ECCF MFC % 85.76% 86.90% 86.39% 87.90% 88.16% 90.68%

TOTALS
1198 1212 1212 1227 1233 1293

Month

ECHC Male INS

ECHC Female INS

-

ECCF Male INS

-

ECCF Female INS

TOTAL

April

1130

199

1336

308

2973

May

1158

188

1449

273

3068

June

1142

198

1378

301

3019

July

1150

188

1347

284

2969

August 1122

204

1367

309

3002

September 1157

196

1394

349

3096

ALL RELEASES
1322 1292 1344 1361 1493 1328

Info

ECHC ECHC ECHC Total ECCF ECCF ECCF Total

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Total Days AVG Daily Pop Daily Intake AVG Stay Total Intake Median Stay

Male 83692 457 33 13 6075 5

Female 13947 76 8 9 1468 5

97639 533 41 22 7543 5

Male Female 111525 15869

609

86

20

3

30

22

3692 719

10

6

127394 696 24 28 4411 9

Median Stay

ECHC Male
3037 = 5

ECHC Female
734 = 5

ECHC Total 3772 = 5

ECCF Male 1846 = 10

ECCF Female
360 = 6

ECCF Total 2206 = 9

Appendix I provides relevant staffing information for ECHC and ECCF.

The Stipulated Order of Dismissal

The most significant progress re: the provisions of the Stipulated Order of Dismissal since the April 2016 site visit have included the achievement of sustained compliance in one additional provision ((7) Documentation and Record-keeping) and one provision that is newly found to be in substantial compliance. Appendix IX lists the 48 provisions that are now in sustained compliance. The provision newly found to be in sustained compliance is bolded in Appendix IX.

All of the provisions of the Stipulated Order of Dismissal that were assessed to be in substantial compliance during the previous site visit have remained in substantial compliance except for the previously referenced provision that is now in sustained compliance. Appendix VIII lists these provisions. A total of four (4) provisions are now in substantial compliance. The following provision is newly found to be in substantial compliance:

8.f. The County will continue to develop and implement a policy and procedure regarding psychotropic medication non-compliance that meets the standard of care.

Appendix III lists the three (3) provisions of this Stipulated Order that remain in partial compliance.

My previous report included the following:

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Funding to significantly expand the ECCF mental health office space via a renovation project was approved by the Legislature on September 11, 2015. This space is needed in order to more adequately provide needed mental health services to inmates at ECCF. The County reports that the DPW is in the process of drafting a contract for an A/E consultant to come on board. Preliminary drawings were completed in 2014, so the design phase should be completed relatively quickly. The County anticipates a March/April 2016 start to this project, with an expected duration of 5-6 weeks.
Construction was anticipated to begin in about six months. I discussed with staff specific design issues such the need for an alarm system in each office, large windows in the office doors and construction of a large multipurpose room.
The electronic medical record implementation process continues improve but remains a work in progress.
The leadership exhibited by Mr. Schoelerman, Dr. Antonius, and Dr. Coggins remains impressive. The relationship between the Department of Mental Health and the University of Buffalo's Department of Psychiatry continues to be crucial in improving the mental health services.
Appendices
The following appendices are attached to this report:
 Appendix I provides a summary of mental health staffing allocations.  Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III lists the provisions that remain in partial compliance.  Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse.  Appendix VIII lists the Stipulated Order provisions that have been found to be in
substantial compliance but for less than 18 consecutive months.  Appendix IX lists the Stipulated Order provisions that have been found to be in
substantial compliance for at least 18 months.  Appendix X is the document request for the next site visit.  Attachment A is the Summary of Levels of Care Qualitative Review report  Attachments B is a summary of crisis bed usage at ECMC since the last site assessment.  Attachment C provides information relevant to detainees psychiatrically hospitalized via
the 730, 943 and 508 processes in an OMH facility.
Please note that the formatting in some of these appendices may not correspond to the original Agreements due to cutting and pasting from the original agreements. However, the language (i.e., content of the provisions) is unchanged.

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My next site visit will be from May 4-5, 2017. Appendix X provides a summary of my requests for pre-site information. Please do not hesitate to contact me if I can answer any further questions.* Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

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Appendix I

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Appendix II

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Appendix III

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Appendix VII

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Appendix VIII

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Appendix IX

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Attachment A

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Attachment B

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Attachment C

 
 Case 1:09-cv-00849-WMS-JJM Document 274 Filed 04/10/15 Page 1 of 12
.JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
January 12, 2012
To: Michelle Parker, Esq. Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. U.S. Department of Justice P.O. Box 66400 Washington, DC 20035-6400
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, from December 5-9, 2011, I site visited the Erie County Holding Center (ECHC). During the morning of December 8, 2011, I also site visited the Erie County Correctional Facility (ECCF). I toured the Erie County Medical Center's Secure Psychiatric Service Unit during the afternoon of December 8, 2011. First Deputy Superintendent/Compliance Michael Reardon and Michael Ranney (Director of Forensic Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this report included review of the following documents:
1. the July 2009 Department of Justice’s Findings Letter, 2. the June 18, 2010 Stipulated Settlement Agreement and Order concerning Suicide
Prevention and Related Mental Health Issues, 3. pertinent Forensic Mental Health Services’ policies and procedures and program
descriptions, 4. the Joint Compliance Officer’s November 2010, March 2011 and July 2011 Reports, 5. the August 2011 Stipulated Order of Dismissal, 6. draft policies regarding the following areas:
a. comprehensive suicide risk assessment form, b. constant observation follow-up, c. SOP mental health assessment and admission (intake), d. SOP community meeting,

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e. SOP progress notes, f. as of the treatment plan, and g. quality management, 7. minutes of the ECHC leadership team, 8. minutes of the suicide prevention workgroup, 9. minutes of the detox workgroup, 10. the ECHC quarterly performance review (10/24/2011), 11. the FMH-constant observation review report (third quarter 2011), 12. mortality and morbidity reports, and 13. the healthcare records of 25 inmates.
During the site visits, I had the opportunity to meet with the following persons:
1. First Deputy Superintendent/Compliance Michael Reardon, 2. Philip Endress, LCSW (Commissioner, DMH), 3. Michael Ranney, M.S., CRC (Director of Forensic Health Services), 4. John Rodriguez, (Chief of Operations), 5. Tom Diina (Superintendent, ECCF), 6. Ed Heidelberger, M.D. (Medical Director), 7. Robert Sobon (Director of Correctional Health Services), 8. Michael Cummings, M.D., 9. Heidi Milch (Community Corrections of New York), 10. Corrine Posluszny, R.N. (Head Nurse, ECCF), 11. Ildiko (Nicky) Fera MS, CRC, LMHC, 12. Bonnie L McLaughlin, MS, LMHC, 13. Ronald Schoelerman, LMSW, 14. Evelyn Coggins, M.D. (Chief Forensic Psychiatrist), 15. Daniel Antonius, Ph.D., 16. nursing staff in the reception (intake) unit, 17. correctional officers in various housing units, and 1. most of the line mental health staff.
Overview
The ECHC is a pre-trial detention center located in Buffalo, New York. The Eric County Correctional Center (ECCF) is a correctional facility located in Alden, New York. Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).
Approximately 23,000 people are processed through the two facilities each year. The Erie County Department of Health has been providing medical and dental services to both facilities for about the past four years, while the Erie County Department of Mental Health Services, through the Adult Forensic Mental Health Clinic, has provided the mental health services for both facilities for many years. ECHC and ECCF inmates may also be admitted to the Erie

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County Medical Center's Secure Psychiatric Service Unit, which has security staffing by inhospital sheriff's deputies.

During the December 8, 2011 visit, 196 of the 496 inmates at ECHC (which included 15 female inmates) were on the mental health caseload and 226 of the 800 inmates (which included 102 female inmates) at ECCF were receiving some form of mental health treatment. The total ECHC and ECCF average daily populations during 2010 was reported to be 1350 inmates.

During December 8, 2011 there were 14 inmates on constant observation status at ECHC. The census in the Delta North and Delta East units was 24 inmates.

The numbers of inmates receiving mental health treatment during 2010 and part of 2011 were as follows:

2010 January February March April May June July August September October November December

ECHC 194 183 206 203 206 195 218 205 209 235 227 189

ECCF 129 125 131 128 136 134 137 142 148 153 173 202

2011

September

218

200

October

213

243

November

221

210

Staffing
Appendix I provides relevant staffing information for ECHC and ECCF. ECHC has 15.0 FTE mental health clinicians and 2.25 FTE psychiatrists or a nurse practitioner. During the site visit, ~12.0 FTE mental health clinicians were assigned to provide services at ECHC in addition to a 1.0 FTE discharge planner. There was no clerical staff within ECHC assigned to the mental health services, which has been problematic.

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Erie County Holding Center (ECHC)
ECHC is the second largest pre-trial detention facility in New York. ECHC was built to house 680 inmates with a design combination of pods, open bay dorms, and traditional linear-type cells. ECHC’s average daily census generally has been around 500 inmates with an average length of stay for arraigned male inmates being 11.4 days and arraigned female inmates being 3.21 days. The linear housing units were built during the 1920s and the newer pod units opened during 1986.
ECHC houses inmates who have not yet been arraigned, classified as maximum security and/or have a serious mental illness. There is also a 30 bed capacity housing unit for inmates requiring detoxification that is staffed for medical purposes by the Department of Health.
The Intake Healthcare Screening Process
In the booking area, the first three pages of the Correctional Medical Intake Screening form (see Appendix II) are completed by a registered nurse ("Nurse A") for all inmates initially booked into the ECHC. In addition, the nurse will complete Form 330 (the Suicide Prevention Screening Guidelines form-see Appendix III). The transporting officers, for some of these inmates, may bring a completed Suicide Prevention Screening Guidelines form from the sending facility and/or share relevant health care information with the ECHC booking officer. Nurse A also attempts to verify reported medications. If medications are verified at that time, a 14 day medication order is generally obtained from a covering non-psychiatrist physician or nurse practioner.
Following the initial healthcare screening and classification processes, the inmate will be sent to a housing unit separate from the housing units for inmates who have been arraigned except for inmates determined to be a significant suicide risk based on results of the Suicide Prevention Screening Guidelines assessment. Such inmates during peak hours (11 AM - 7 PM) will be seen promptly by a forensic mental health specialist, who determines whether close observation status or other special housing is required. This relatively new process has significantly reduced the number of inmates placed on close observation status due to waiting for an assessment by a QMHP. The average number of such inmates or close observation status has been reduced from about 17 inmates per day to usually 12 inmates per day.
In general, inmates are arraigned within 24 hours of booking. Upon return from the arraignment process, they are again screened by nursing staff (i.e. the so-called "Nurse B" assessment), which involves completion of the Correctional Medical Intake Screening form and re-administration of the Suicide Prevention Screening Guidelines form. Attempts to verify medications occur, when clinically indicated, during this screening process and mental health referrals are initiated as indicated. The Suicide Prevention Screening Guidelines form is again administered to all inmates returning from court after being sentenced via this "Nurse B" screening process.
Related to a change in a contract with the City of Buffalo that will be effective reportedly around April 2012, the number of daily intakes will be decreased by at least 50% beginning in April.

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Currently, daily intakes ranged for 60 to 70 inmates per day, with most of them occurring between 7 a.m. - 6 p.m. After April 2012, the QMHP staff within the reception area can be reduced and re-directed to the outpatient and residential level of mental health care services as will be described elsewhere in this report. The anticipated infrequent booking that will occur after 6 p.m. will receive suicide risk assessments in a process that will be soon described by policy and procedure that will be consistent with the Stipulated Order of Dismissal.
The Mental Health Housing Units
I visited the pod units for male inmates with mental illness, which had a capacity of 14 single cells in Delta North and 11 single cells in Delta East. All of these cells had been made suicide resistant as per the Stipulated Suicide Prevention Agreement. Each of these units had a cell (i.e., the bubble room) used for constant observation purposes. There was also a television set in a reasonably sized dayroom. Near these housing units were four rooms used for interviewing purposes and a room that used as a workspace for the mental health staff. One deputy was assigned to the control booth, which had a clear view of Delta North and Delta East and another officer essentially served as a housing unit rover for these two pod units.
I also toured the male housing units that had a linear single cell design that ranged from 11 (i.e., the short side) to 14 (i.e., the long side) cells per tier. These housing units did not have a dayroom but did have a long but narrow "hallway" immediately in front of the barred cell fronts with a another narrow celled hallway immediately adjacent. There was a smaller sized version called the "seg block" that consisted of four barred cells. This name was a misnomer because it was not used for segregation purposes.
There was a constant observation unit that was designed as a dormitory, which consisted of four beds in one large room.
There were a total of five cells, in a linear design, for female inmates with mental illness within the Delta housing units. A wall separated a block of three cells from a smaller block of two cells. Alpha unit is a dormitory for women requiring constant observation.
I also toured the keeplock unit in the Gulf East housing unit and briefly talked with most of the inmates in this unit at their cellfront.
Inmates housed in the Delta units are not transferred to ECCF, except under unusual circumstances that generally involve a clinical indication for such a transfer. Inmates who are waiting for a cell in Delta housing units to become available have a "do not transfer to ECCF alert" placed in the ITAG (i.e., the jail management information system).
Medication Administration
Prescribed medications are distributed by the Kinney Pharmaceuticals Services.

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Medications are predominantly distributed via a blister pack process.
In general, inmates within the mental health housing units reported minimal continuity of medication issues. Information obtained from mental health staff was consistent with the inmates' reports.
Inmate Interviews
I interviewed most of the inmates in one of the mental health housing units (Delta North) via a group setting and a group of inmates receiving an outpatient level of mental healthcare in Delta Long.
Inmates in the Delta housing units reported seeing either the psychiatrist or psychiatric nurse practitioner on at least a monthly basis in a private office setting. The frequency of one-to-one sessions with their other mental health clinicians (i.e., licensed social workers or licensed mental health counselors) was reported to range from biweekly to monthly. Inmates provided positive descriptions of the general milieu on this unit although they were clear in wanting access to increased programming.
Inmates in the Delta Long housing units were very vocal in wanting better access to mental health services, especially groups and/or individual counseling. Medication continuity issues did not appear to be a significant problem.
Staff Interviews
The line mental health staff at ECHC reported that medication continuity problems were uncommon.
The mental health caseloads assigned to each of the mental health clinicians at ECHC will be about 25 inmates per clinician in the near future.
The mental health staff perceived that that the sick call process was working well. In general, staff reported being able to offer inmates clinical contacts in an office setting with adequate sound privacy.
Erie County Correctional Facility (ECCF)
ECCF was built to house 1,070 convicted prisoners, parole violators, and ECHC overflow inmates. The average daily census was reported to be 780 inmates with an average length of stay for male inmates being 28.51 days and 19.26 days for female inmates. Male inmates in the Yankee housing unit have an average length of stay of 18.76 days.
During the morning of December 8, 2011, I site visited the Erie County Correctional Facility (ECCF). I had the opportunity to meet with the following staff:

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1. Superintendent Thomas Diina, 2. Michael R. Ranney, MS, CRC, LMHC, 3. Amanda Leone, LMHC, 4. Bonnie L McLaughlin, MS, LMHC, MS, 5. Penny Drag, LMSW, and 6. Corrine Posluszny, R.N. (Head Nurse).
This medium security correctional facility has a capacity of 884 prisoners with a usual count of 760. Approximately 30% of the prisoners are sentenced inmates in contrast to being pretrial detainees. The keep locked unit has a capacity of 20 inmates with lengths of stay that usually range from 7-10 days. The mental health caseload was reported to range from 240-300 inmates. Caseloads per clinicians ranged from 60 to 90 inmates per clinician.
The current mental health staffing consists of one full-time Forensic Mental Health Specialist II and two part-time Forensic Mental Health Specialists I who work three days per week at the facility (7 to 8 hours per day). Beginning the week of December 11, 2011, the psychiatric coverage will include a Tuesday psychiatrist clinic (8:30 AM-2:30 PM) and a Thursday psychiatric nurse practitioner clinic (8 AM-2:30 PM), which will represent an increase of 4.5 hours of coverage as compared to the present day coverage.
Information obtained from staff indicated that there had been significant problems in receiving healthcare records from ECHC relevant to prisoners being transferred to ECCF although significant improvement during the past several weeks was described. An additional problem was that even when records are obtained, they may be incomplete due to apparent medical record filing issues at ECHC. Several compensatory mechanisms were described by both nursing and mental health staff in the context of this problem, which included nursing staff completing a history and physical examination form, notifying both correctional and health care staff at ECHC regarding the need to send the missing record to ECCF that same day and mental health staff checking electronically whether newly admitted inmates at ECCF were on the mental health caseload at ECHC. None of the above problems have been quantified or audited.
Medication management issues described by mental health staff included verified medications not being prescribed in a timely manner at ECHC and unverified medications being prescribed at ECHC by the nurse practitioners. Periodically medications were reported to be prescribed by a nurse practitioner at ECHC for 365 days. I reviewed an example of such a practice that had also been reported to Dr. Heidelberger by the ECCF mental healthcare staff.
Staff indicated that issues were present regarding adequate office space in order to see mental health caseload inmates in a manner that allowed for adequate sound privacy. This problem was being remedied by construction/renovation of space that should be completed within the next several months.
There been no suicides at ECCF for at least the past year and only one serious suicide attempt during the same period of time. Restraints for mental health purposes have not been used for

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over two years. About 1-2 mental health caseload inmates per month are transferred from ECCF to ECHC due to an inability to adequately adjust in the housing units at ECHC. Most of the inmates requiring close observation status will be transferred to ECHC due to cost effectiveness issues.
Mental health staff indicated that individual sessions are generally initiated via the self-referral process due to staff allocation issues. Group therapies are not provided due to similar reasons in addition to physical plant limitations.
The superintendent of this facility is a member of the suicide prevention workgroup (see Stipulated Suicide Prevention Agreement).
The healthcare records of 5 inmates were reviewed (see Appendix IV).
Assessment: Significant mental health system issues were present at ECCF, which included, but were not limited to, the following:
1. Intake screening problems related to not receiving records at ECCF in a timely manner and/or receiving incomplete healthcare records due to apparent medical records filing issues at ECHC. However, this problem has significantly improved in the past month related to new system processes put in place by both medical and custody staffs.
2. I discussed in detail with both the head nurse and mental health staff the types of data that needs to be tracked relevant to the Stipulated Agreements, which should include the following information: a. The average number of monthly intakes at ECCF. b. The percentages and absolute numbers of monthly intakes at the ECCF who are referred for mental health assessment/treatment. c. The average number of mental health referrals at ECCF broken down as follows: i. percentage and absolute numbers generated from the ECCF intake process ii. percentage and absolute numbers generated from a non-ECCF intake process iii. the percentage of ii that resulted from review of the I-Tag system iv. the percentage of ii that resulted from de novo (i.e., not currently on the mental health caseload) referrals. d. The percentage and absolute numbers on a monthly basis of intakes arriving at ECCF who do not arrive with healthcare records or arrive with healthcare records that do not have the most recent suicide prevention screening guidelines and or healthcare screening form completed. It was my understanding that these SPSG forms are available to clinicians at ECCF electronically via internet access. e. For prisoners arriving at ECCF without adequate healthcare records, data

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relevant to how long it takes to actually receive the records in addition to data relevant to the nature of the intake screening performed ECCF prior to housing decisions being made.
I explained to staff the rationale for the need for such data, with particular reference to the required staffing analysis as per the Stipulated Order of Dismissal.
The Stipulated Agreements
Appendix V provides a summary of my findings re: the Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues. Appendix VI provides a summary of my findings re: the Stipulated Order of Dismissal.
Executive Summary
The Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues
As compared to Dr. Trestman’s July 2011 report, all of the provisions previous assessed to be in substantial compliance have remained in substantial compliance except for A.1.e. (which has to do with privacy issues during healthcare screening.
Five provisions previously assessed to not being compliant are now assessed as being in partial compliance. All the rest of the provisions previously determined to be in partial compliance have remained in partial compliance although many of these provisions are now significantly closer to being in substantial compliance.
One provision C.4.a. remains not ratable at this time.
By agreement of the parties and with approval from Ronald Shansky, M.D., all provisions of this Agreement directly referencing detox services will be monitored in future by Ronald Shansky, M.D. because it will be a more efficient and effective process in the context of his other TCC responsibilities.
In sum, significant progress continues to be made in terms of achieving substantial compliance regarding the provisions of this Stipulated Settlement Agreement. Many of these provisions have been revised in the context of the Stipulated Remedial Order and will be monitored via the Stipulated Remedial Order although specific provisions in the Stipulated Settlement Agreement and Order concerning Suicide Prevention will still apply.
The Stipulated Order of Dismissal
For obvious reasons, the compliance rate with provisions of the Stipulated Order of Dismissal is not close to the compliance rate with the Stipulated Settlement Agreement and Order concerning

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Suicide Prevention. Most of the provisions of the Stipulated Order of Dismissal require development of written policies and procedures that reflect the specific requirements in the various provisions of this Stipulated Order. The parties anticipated that development of these policies and procedures would not be completed at the time of the initial monitoring assessment as evidenced by the following provision of Stipulated Order:
Within 120 days of the Effective Date of this Stipulated Order, Defendant will provide to the TCC and the United States all policies, procedures, and protocols that are contemplated by this Stipulated Order. The United States will provide any comments to the TCC within 90 days thereafter, and the TCC will review the policies, procedures, and protocols for approval. The TCC will approve all policies before they are implemented.
It is my understanding that December 23, 2011 will represent the ending of the 120 days timeframe.
It is encouraging that the mental health services at the Jail have begun implementation of various provisions of this Stipulated Order as resources permit even when policies and procedures have not yet been finalized. For example, five additional mental health specialists have been hired as per the Stipulated Order, which has allowed beginning implementation of the mental health referral process following a positive suicide prevention screening guidelines assessment as required by the Stipulated Order.
In certain other areas the current practice is consistent with the requirements of the Stipulated Order but substantial compliance was not present due to the lack of the required policy and procedure.
Several areas were found to be in substantial compliance which included the hiring of a chief psychiatrist and the provisions relevant the use of chemical spray or other force on prisoners with mental illness.
One of the requirements of the Stipulated Order that is essential to eventually achieving substantial compliance with many of the provisions of this Order has to do with the quality improvement processes. It is very encouraging that DMH has contracted with the Community Connections of New York (CNNY) in addition to hiring Daniel Antonius, Ph.D., because this organization and Dr. Antonius are both skilled in developing an infrastructure for the QI process in addition to actually implementing the QI process.
It is also very encouraging that DMH has continued to develop their relationship with the University of Buffalo's Department of Psychiatry, which has facilitated recruitment of psychiatrists that will eventually contribute to achieving substantial compliance with the Stipulated Order.
The leadership demonstrated by Michael Ranney (Director of Forensic Health Services) along

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with the guidance and support from Philip Endress, LCSW (Commissioner, DMH) have been instrumental in the progress demonstrated by the mental health services. In addition, the leadership and corroborative actions demonstrated by First Deputy Superintendent/Compliance Michael Reardon have also been essential in this process.
Attachment A provides a summary of provisions of the Stipulated Settlement Agreement and Order concerning Suicide Prevention and Related Mental Health Issues by compliance rating. A similar attachment will be provided in the future for the Stipulated Order when more provisions have achieved Substantial Compliance.
The Stipulated Order includes the following provisions:
III. SUBSTANTIVE PROVISIONS
Defendant agrees to continue taking all actions necessary to implement the substantive provisions of this Stipulated Order listed below.
A. PROTECTION FROM HARM
1. Sexual Abuse
e. The County will continue to offer all victims of sexual abuse alleged to have occurred in the Facilities access to forensic medical exams performed by Medical staff, whether onsite or at an outside facility, without financial cost. Informed acceptance or refusal of a forensic medical exam must be documented in writing.
f. The County will ensure appropriate counseling services are made available to victims of sexual abuse, provided by a qualified staff member or a victim advocate from a community-based organization that provides services to sexual abuse victims.
l. The County will ensure that all full- and part-time qualified health and qualified mental health professionals who work regularly in ECHC and ECCF and have contact with prisoners have been trained in:
i. How to detect and assess signs of sexual abuse; ii. How to preserve physical evidence of sexual abuse; iii. How to respond effectively and professionally to victims of sexual
abuse; iv. How and to whom to report allegations or suspicions of sexual
abuse.
Both parties, at the request of Mr. Manuel Romero, requested assistance from the medical and mental health TCC's in monitoring the above provisions. I have agreed to review 1.f. I will ask Dr. Shansky to review 1.e. and the monitor whether the training provisions of provision l have occurred.

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I received comments from the DOJ re: my December draft report. No comments were received from Erie County. The DOJ suggested that the final report provides additional detail regarding thresholds for substantial compliance to be achieved and indicators that will be reviewed. The indicators will essentially be driven by the policies and procedures that are currently being developed to implement the various provisions of the Stipulated Order. In general, a compliance rate of 90% will be required to achieve substantial compliance.
My next site visit will be from June 4-7, 2012. Appendix VII provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

 
 Case 1:09-cv-00849-WMS-JJM Document 275 Filed 04/10/15 Page 1 of 6
.JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
July 3, 2012
To: Michelle Parker, Esq. Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. U.S. Department of Justice P.O. Box 66400 Washington, DC 20035-6400
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, from June 4-7, 2012 I site visited the Erie County Holding Center (ECHC). During the morning of June 6, 2012, I also site visited the Erie County Correctional Facility (ECCF). Michael Ranney (Director of Forensic Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this report included review of the following documents:
1. the 2/9/12 ECHC quarterly performance review (CCNY), 2. the 2011 Constant Observation Annual Report, 3. the Forensic Mental Health Constant Observation Review (first quarter 2012) Report, 4. the New York Commission on Correction’s position and staffing analysis re: ECHC
and ECCF, 5. the “Overview of FMH Overall Mental Health Charts (March –April 2012)” report, 6. updated policies and procedures (drafts and final approved policies and procedures), 7. minutes and agendas of the suicide prevention leadership group meetings 8. minutes of the mental health workgroup, and 9. minutes of the medical review committee.
During the site visits, I had the opportunity to meet with the following persons:
1. Michael Reardon (First Deputy Superintendent/Compliance),

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2. Philip Endress, LCSW (Commissioner, DMH), 3. Michael Ranney, M.S., CRC (Director of Forensic Health Services), 4. Tom Diina (Superintendent, ECCF), 5. Ed Heidelberger, M.D. (Medical Director), 6. Mick Kubick, 7. Michael Cummings, M.D., 8. Heidi Milch and other staff from the Community Corrections of New York, 9. Evelyn Coggins, M.D. (Chief Forensic Psychiatrist), 10. Daniel Antonius, Ph.D., 11. nursing staff in the reception (intake) unit, 12. correctional officers in various housing units, and 1. most of the line mental health staff.

Overview

Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).

During June 5, 2012 the inmate count at ECHC was 560 inmates and the inmate count at ECCF was 842 inmates.

During June 6, 2012, there were 13 inmates on constant observation status at ECHC. The census in the Delta North and Delta East units was 25 inmates. There were 56 inmates in the other mental health housing units.

The number of inmates receiving mental health treatment during 2012 was as follows:

2012 January February March April May

ECHC 176 230 258 302 274

ECCF 243 242 244 238 257

The average caseload per QMHP at ECHC was 24 inmates and at the average caseload per QMHP at ECCF was 65 inmates.

Staffing

Appendix I provides relevant staffing information for ECHC and ECCF. ECHC has 15.0 FTE mental health clinicians and 2.75 FTE psychiatrists or nurse practitioners. During the site visit, ~10.0 FTE mental health clinicians were assigned to provide services at ECHC in addition to a

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1.0 FTE discharge planner. There was no clerical staff within ECHC assigned to the mental health services, which continues to be very problematic. As a result, the QMHPs’ duties included a significant amount of clerical functions.
The Intake Healthcare Screening Process
My January 2012 report included the following:
Related to a change in a contract with the City of Buffalo that will be effective reportedly around April 2012, the number of daily intakes will be decreased by at least 50% beginning in April. Currently, daily intakes ranged for 60 to 70 inmates per day, with most of them occurring between 7 a.m. - 6 p.m. After April 2012, the QMHP staff within the reception area can be reduced and re-directed to the outpatient and residential level of mental health care services as will be described elsewhere in this report. The anticipated infrequent booking that will occur after 6 p.m. will receive suicide risk assessments in a process that will be soon described by policy and procedure that will be consistent with the Stipulated Order of Dismissal.
The above referenced change in the contract took place in May 2012. Although the number of daily intakes has significantly decreased, the percentage of referrals to mental health as a result of the intake screening process has increased, which means that the workload for mental health services has not decreased related to the decrease in daily intakes. The reason for the increase in mental health referrals was unclear but likely related to the use of registry nurses for healthcare screening purposes.
Related to the change in a contract with the City of Buffalo, the intake health care screening process will be changed to eliminate the Nurse A screening process for male detainees.
The Stipulated Agreements
The following appendices are attached to this report:
 Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III provides a summary of my findings re: the Stipulated Settlement Agreement
and Order Concerning Suicide Prevention and Related Mental Health Issues (i.e., the Suicide Prevention Stipulation).  Appendix IV summarizes my findings re: provisions of the Suicide Prevention Stipulation that were previously found to be in substantial compliance.  Appendix V lists duplicative provisions of the Suicide Prevention Stipulation or provisions superceded by the Stipulated Order of Dismissal.  Appendix VI lists the provisions of the Suicide Prevention Stipulation to be monitored by Ronald Shansky, M.D.  Appendix VII reference an excerpt of the Stipulated Agreement re: Sexual Abuse

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 Appendix VIII is the document request for the next site visit.  Appendix A is the ECHC Quarterly Performance Review (2/9/12).  Appendix B is the Stipulated Order of Dismissal provision by level of compliance.  Appendix C is the Forensic Mental Health: Overall Chart Review findings.
Executive Summary
The Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues
As compared to my January 2012 assessment, all of the provisions previous assessed to be in substantial compliance have remained in substantial compliance except for one provision that was not assessed during this site assessment. Two additional provisions have been found to be in substantial compliance.
All but one of the rest of the provisions previously determined to be in partial compliance have remained in partial compliance although many of these provisions are now significantly closer to being in substantial compliance. One provision is now in noncompliance.
By agreement of the parties and with approval from Ronald Shansky, M.D., all provisions of this Agreement directly referencing detox services are now monitored by Ronald Shansky, M.D. because it will be a more efficient and effective process in the context of his other TCC responsibilities.
Many of the provisions of the Suicide Prevention Stipulation are now monitored via the Stipulated Order of Dismissal, although specific provisions of the former still apply.
The Stipulated Order of Dismissal
The most significant progress re: the provisions of the Stipulated Order of Dismissal has been in the development of written policies and procedures that reflect the specific requirements in the various provisions of this Stipulated Order.
Four of the five provisions of the Stipulated Order of Dismissal that were assessed to be in substantial compliance during the previous site visit have all remained in substantial compliance. One of these provisions was not assessed during this site visit. An additional 12 provisions have been found to be in compliance during this site assessment. One provision is now in noncompliance.
The lack of medical record availability during weekends related to staffing issues is very problematic and should be remedied prior to the long-term fix summarized in Appendix II.
My January 2012 report included the following:

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One of the requirements of the Stipulated Order that is essential to eventually achieving substantial compliance with many of the provisions of this Order has to do with the quality improvement processes. It is very encouraging that DMH has contracted with the Community Connections of New York (CNNY) in addition to hiring Daniel Antonius, Ph.D., because this organization and Dr. Antonius are both skilled in developing an infrastructure for the QI process in addition to actually implementing the QI process.
It is also very encouraging that DMH has continued to develop their relationship with the University of Buffalo's Department of Psychiatry, which has facilitated recruitment of psychiatrists that will eventually contribute to achieving substantial compliance with the Stipulated Order.
The leadership demonstrated by Michael Ranney (Director of Forensic Health Services) along with the guidance and support from Philip Endress, LCSW (Commissioner, DMH) have been instrumental in the progress demonstrated by the mental health services. In addition, the leadership and corroborative actions demonstrated by First Deputy Superintendent/Compliance Michael Reardon have also been essential in this process.
My opinions re: the above have remained the same and have been reinforced by this site assessment.
The FMH services has been working with Community Connections of New York to develop a database for management and QI purposes as well as a web based electronic medical record (EMR). I attended a demonstration of the potential of this database/EMR, which was impressive. It is recommended that further information be obtained from a system or systems that are currently using the technology for similar purposes.
It is clear that the database that the FMH services want to develop is essential for implementing many provisions of the Stipulated Agreements, especially the quality management provisions.
Dr. Shansky and I met with the commissioners of DMH and DOH, Mick Kubick, Mr. Ranney and Dr. Heidelberger to express our concerns re: the apparent divergent course being undertaken by these two departments in the context of the EMR.
The Stipulated Order of Dismissal includes the following provision:
The reports will be provided to the Parties in draft form at least two (2) weeks prior to final issuance. The Parties may provide written comments, if necessary, copying the opposing Party. These reports will be written with due regard for the privacy interests of individual inmates and staff.

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This final report reflects some changes from my draft report that are based on comments received from both parties. My next site visit will be from November 26-30, 2012. Appendix VIII provides a summary of my requests for pre-site information. Please do not hesitate to contact me if I can answer any further questions.* Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

 
 Case 1:09-cv-00849-WMS-JJM Document 276 Filed 04/10/15 Page 1 of 5
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
January 5, 2013
To: Michelle Parker, Esq. Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. U.S. Department of Justice P.O. Box 66400 Washington, DC 20035-6400
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, from November 26-30, 2012 I site visited the Erie County Holding Center (ECHC). During the morning of November 28, 2012, I also site visited the Erie County Correctional Facility (ECCF). Michael Ranney (Director of Forensic Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this report included review of the following documents:
1. the Forensic Mental Health Constant Observation audits (2nd and 3rd quarters), 2. the 2012 Constant Observation Annual Report, 3. the “Overview of FMH Overall Mental Health Charts (July-September 2012)” report, 4. minutes and agendas of the suicide prevention leadership group meetings, 5. minutes of the mental health review committee, 6. minutes of the correctional health review committee, and 7. review of 30 healthcare records of mental health caseload inmates.
During the site visits, I had the opportunity to meet with the following persons:
1. Michael Reardon (First Deputy Superintendent/Compliance), 2. Ellery Reaves (Commissioner, DMH), 3. Michael Ranney, M.S., CRC (Director of Forensic Health Services), 4. David Marciniak, R.N. (Director of Correctional Health Services),

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5. Michael Cummings, M.D., 6. Heidi Milch and other staff from the Community Connections of New York, 7. Evelyn Coggins, M.D. (Chief Forensic Psychiatrist), 8. Daniel Antonius, Ph.D., 9. correctional officers in various housing units, and 10. most of the line mental health staff in two group settings.

Overview

Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).

During November 28, 2012 the inmate count at ECHC was 530 inmates (which included 12 keep-lock status inmates) and the inmate count at ECCF was 773 inmates (which included 33 keep-lock status inmates).

During November 28, 2012, there were 9 inmates (which included 5 females) on constant observation status at ECHC. The census in the Delta housing units was 84 inmates. There were 12 male inmates in the Gulf East housing unit.

The number of inmates receiving mental health treatment since June 2012 was as follows:

2012 Jun Jul Aug Sep Oct

ECHC 225 230 237 240 239

ECCF 221 226 230 233 211

The average caseload per QMHP at ECHC was 30 inmates and the caseload per QMHP at ECCF ranged from 48 to 79 inmates per QMHP.

Staffing

Appendix I provides relevant staffing information for ECHC and ECCF. ECHC and ECCF have a total of 14.0 FTE mental health clinicians, with one QMHP vacancy,and will have another 2.0 FTE positions in 2013. The 2.75 FTE psychiatrists and nurse practitioners positions will increase to 3.8 FTE positions in 2013. During the site visit, ~10.0 FTE mental health clinicians were assigned to provide services at ECHC in addition to a 1.0 FTE discharge planner. There was a 1.0 FTE clerical staff within ECHC assigned to the mental health services, which currently is vacant. As a result, the QMHPs’ duties included a significant amount of clerical functions. ECCF currently has 3.0 FTE mental health clinicians.

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The Intake Healthcare Screening Process
My January 2012 report included the following:
Related to a change in a contract with the City of Buffalo that will be effective reportedly around April 2012, the number of daily intakes will be decreased by at least 50% beginning in April. Currently, daily intakes ranged for 60 to 70 inmates per day, with most of them occurring between 7 a.m. - 6 p.m. After April 2012, the QMHP staff within the reception area can be reduced and re-directed to the outpatient and residential level of mental health care services as will be described elsewhere in this report. The anticipated infrequent booking that will occur after 6 p.m. will receive suicide risk assessments in a process that will be soon described by policy and procedure that will be consistent with the Stipulated Order of Dismissal.
November 2012 update: Related to the change in a contract with the City of Buffalo, the intake health care screening process has been changed to eliminate the Nurse A screening process for male detainees. From June 1 – October 31, 2012, ECHC has averaged 51 bookings /day and ECCF has averaged 22 bookings/day.
Attachment E summarizes the number of mental health referrals originating from the intake process and the number of positive “hits” from a mental health perspective.
The Stipulated Agreements - Executive Summary
The Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues
As compared to my June 2012 assessment, all of the provisions previous assessed to be in substantial compliance have remained in substantial compliance. Two additional provisions have been found to be in substantial compliance (see Appendix III). At the present time, all provisions of this Agreement that are being monitored by me within this Agreement are now in substantial compliance. Appendix IV provides a summary of the relevant findings and dates that substantial compliance was found.
By previous agreement of the parties and with approval from Ronald Shansky, M.D., all provisions of this Agreement directly referencing detox services are monitored by Ronald Shansky, M.D. because it will be a more efficient and effective process in the context of his other TCC responsibilities. These provisions are summarized in Appendix VI.
Other provisions of the Suicide Prevention Stipulation continue to be monitored via the Stipulated Order of Dismissal, although specific provisions of the former still apply.
The Stipulated Order of Dismissal

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The most significant progress re: the provisions of the Stipulated Order of Dismissal since the June 2012 site visit has been the progression of the credentialing process for the mental health clinicians, especially at ECHC. The impact of this process includes more comprehensive and clinically meaningful assessments and treatment plans.
Seventeen of the eighteen provisions of the Stipulated Order of Dismissal that were assessed to be in substantial compliance during previous site visits have remained in substantial compliance. An additional 5 provisions have been found to be in compliance during this site assessment. Appendix X lists these provisions. All other provisions of this Stipulated Order are in partial compliance.
I remain encouraged by the leadership exhibited by Mr. Ranney, Dr. Antonius, Dr. Cummings and Dr. Coggins and the evolving QI process. The relationship between DMH and the University of Buffalo's Department of Psychiatry has been crucial in improving the mental health services. As in the past, the leadership and corroborative actions demonstrated by First Deputy Superintendent/Compliance Michael Reardon have also been essential in this process.
Appendices
The following appendices are attached to this report:
 Appendix I provides a summary of mental health staffing allocations  Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III provides a summary of my findings re: the Stipulated Settlement Agreement
and Order Concerning Suicide Prevention and Related Mental Health Issues (i.e., the Suicide Prevention Stipulation).  Appendix IV summarizes my findings re: provisions of the Suicide Prevention Stipulation that were previously found to be in substantial compliance.  Appendix V lists duplicative provisions of the Suicide Prevention Stipulation or provisions superceded by the Stipulated Order of Dismissal.  Appendix VI lists the provisions of the Suicide Prevention Stipulation to be monitored by Ronald Shansky, M.D.  Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse. Note that provision A.1.f. is now in substantial compliance.  Appendix VIII is a record review summary  Appendix IX is record review summary spreadsheet  Appendix X is the document request for the next site visit.  Attachment A is the MH overall fall 2012 audit  Attachment B is a screenshot of the mental health intake assessment screen  Attachment C is a summary of credentialing reviews  Attachment D is the June 2012 staffing analysis  Attachment E summarizes the number of mental health referrals originating from the intake process

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This final report reflects several revisions to my draft report that were made in response to comments received from the involved parties, with the substantive revisions in terms of the compliance ratings being in response to the comments from the DOJ attorneys.
The changes are reflected in the body of this report and in Appendices II & X. I am sending redlined and clean copies of Appendices II & X in order to facilitate your reading of these revisions.
My next site visit will be from June 10- 14, 2013. Appendix XI provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

 
 Case 1:09-cv-00849-WMS-JJM Document 277 Filed 04/10/15 Page 1 of 5
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
June 17, 2013
To: Michelle Parker, Esq. Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. U.S. Department of Justice P.O. Box 66400 Washington, DC 20035-6400
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, I site visited the Erie County Holding Center (ECHC) from June 10-14, 2013. During the morning of June 12, 2013, I also site visited the Erie County Correctional Facility (ECCF). Michael Ranney (Director of Forensic Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this draft report included review of the following documents:
1. QI studies, which included the following:
a. Paper chart review, general findings, b. Forensic Mental Health: Overall SOP Implementation Study (October-
December 2012), c. Forensic Mental Health: Constant Observation (First Quarter 2013), d. COBS Database Information November 2012-March 2013, e. Staffing Allocations and Vacancies, f. Forensic Mental Health: Critical Medications, g. Forensic Mental Health: Referrals, h. Forensic Mental Health: Referrals – Timelines, i. the 2012 Constant Observation Annual Report, 2. minutes and agendas of the suicide prevention leadership group meetings, 3. minutes of the mental health review committee,

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4. minutes of the correctional health review committee, and 5. a focused review of ~ 28 healthcare records of mental health caseload inmates.

During the site visit, I had the opportunity to meet with the following persons:

1. Michael Reardon (First Deputy Superintendent/Compliance), 2. Michael Ranney, M.S., CRC (Director of Forensic Health Services), 3. David Marciniak, R.N. (Director of Correctional Health Services), 4. Michael Cummings, M.D., 5. Amy Manning (Community Connections of New York), 6. Evelyn Coggins, M.D. (Chief Forensic Psychiatrist), 7. Daniel Antonius, Ph.D., 8. correctional officers in various housing units, and 9. most of the line mental health staff in two group settings.

Overview

Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).

Average facility counts during 2013 were reported as follows:

January February March April May

ECHC 500 487 524 543 537

ECCF 732 737 741 740 740

YANK 13 18 27 36 36

ECMC 5 3 6 4 4

TOTAL 1250 1245 1275 1317 1317

Other pertinent statistics included the following:

ECHC

ECCF/YANK

Average daily intake Average daily population Average length of stay Mean intake Total intake

Male 37.60 460 12.14 38 5678

Female 12.76 58 4.49 13 1927

Total 50.36 518 10.20 7605 7605

Male 18.93 671 35.07 19 2859

Female 3.19 88 26.95 3 483

Total 22.13 759 33.88 22 3342

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Male Female Combined

Median stay 6 2

7

Male Female Combined

50 12

40

The number of inmates receiving mental health treatment since December 2012 was as follows:

Dec. 2012-May 2013

ECHC

Dec

188

Jan

177

Feb

173

Mar

183

Apr

169

May

157

ECCF 205 191 189 185 182 188

Staffing
Appendix I provides relevant staffing information for ECHC and ECCF. The hiring process within the county continues to hamper filing of the staffing vacancies.
During the site visit, I toured the space being renovated for the new reception intake area, detoxification housing and the medical records department. It was well designed and will make a significant difference when opened later this summer.
The Stipulated Agreements - Executive Summary
The Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues
At the present time, all provisions of this Agreement that are being monitored by me within this Agreement continue to be in substantial compliance. Appendix III provides a summary of the relevant findings and dates that substantial compliance was found. Appendix IV lists the 22 Suicide Prevention Stipulation provisions that have been in substantial compliance for at least 18 months. The remaining three provisions have not yet met the 18 month duration criterion.
By previous agreement of the parties and with approval from Ronald Shansky, M.D., all provisions of this Agreement directly referencing detox services continue to be monitored by Ronald Shansky, M.D. because it is be a more efficient and effective process in the context of his other TCC responsibilities. These provisions are summarized in Appendix VI.
Other provisions of the Suicide Prevention Stipulation continue to be monitored via the Stipulated Order of Dismissal, although specific provisions of the former still apply.

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Psychiatric Assessment Re: ECHC and ECCF Page 4 of 5
The Stipulated Order of Dismissal The most significant progress re: the provisions of the Stipulated Order of Dismissal since the November 2012 site visit has been the continued implementation and evolution of the Residential Treatment Unit
The credentialing process for the mental health clinicians has proven to be a very successful endeavor based on interviews with the mental health staff. The impact of this process continues to include more comprehensive and clinically meaningful assessments and treatment plans.
The computerized mental health forms and database developed via CCNY is now being gradually rolled out. Full implementation will be a major step in improving clinical services as well as the quality improvement process. The eventual implementation of an electronic record will be greatly facilitated by this process as well.
All of the provisions of the Stipulated Order of Dismissal that were assessed to be in substantial compliance during the previous site visit have remained in substantial compliance. An additional 7 provisions have been found to be in substantial compliance during this site assessment. Appendix VIII lists these provisions (in bold). Seven (7) provisions have now been in substantial compliance for at least 18 months (see Appendix IX). All other provisions of this Stipulated Order are in partial compliance.
I remain encouraged by the leadership exhibited by Mr. Ranney, Dr. Antonius, Dr. Cummings and Dr. Coggins and the evolving QI process. The relationship between DMH and the University of Buffalo's Department of Psychiatry has been crucial in improving the mental health services. As in the past, the leadership and corroborative actions demonstrated by First Deputy Superintendent/Compliance Michael Reardon have also been essential in this process. The leadership provided by David Marciniak, R.N. (Director of Correctional Health Services), Christa Catrona, R.N. (DON) and Dr. Heidelberger has also been impressive.
Appendices
The following appendices are attached to this report:
 Appendix I provides a summary of mental health staffing allocations  Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III lists the provisions of the Stipulated Settlement Agreement and Order
Concerning Suicide Prevention and Related Mental Health Issues (i.e., the Suicide Prevention Stipulation) that are not yet in substantial compliance for at least 18 consecutive months.  Appendix IV lists Suicide Prevention Stipulation provisions in substantial compliance for at least 18 months  Appendix V lists duplicative provisions of the Suicide Prevention Stipulation or provisions superceded by the Stipulated Order of Dismissal.

Case 1:09-cv-00849-WMS-JJM Document 277 Filed 04/10/15 Page 5 of 5 Psychiatric Assessment Re: ECHC and ECCF Page 5 of 5
 Appendix VI lists the provisions of the Suicide Prevention Stipulation to be monitored by Ronald Shansky, M.D.
 Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse.  Appendix VIII lists the Stipulated Order provisions that have been found to be in
substantial compliance but for less than 18 consecutive months.  Appendix IX lists the Stipulated Order provisions that have been found to be in
substantial compliance for at least 18 months.  Appendix X is the document request for the next site visit.
Please note that the formatting in some of these appendices may not correspond to the original Agreements due to cutting and pasting from the original agreements. However, the language (i.e., content of the provisions) is unchanged.
Please provide any comments to this draft report by July 15, 2013.
My next site visit will be from November 18-22, 2013. Appendix X provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

 
 Case 1:09-cv-00849-WMS-JJM Document 278 Filed 04/10/15 Page 1 of 5
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
December 20, 2013
To: Michelle Parker, Esq. Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. U.S. Department of Justice P.O. Box 66400 Washington, DC 20035-6400
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, I site visited the Erie County Holding Center (ECHC) from November 18-22, 2013. During the morning of November 20, 2013, I also site visited the Erie County Correctional Facility (ECCF). Michael Ranney (Director of Forensic Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this draft report included review of the following documents:
1. QI studies, which included the following: a. Forensic Mental Health: Critical Medications, b. a November 15, 2013 report entitled “Erie County Department of Mental Health Forensic Mental Health Quality Management Report” that included the following: i. 2nd Qtr 2013 Qualitative Chart Review ii. 3rdQtr 2013 Qualitative Chart Review iii. Patients with Multiple Placements on COBS iv. Crisis Bed/Constant Observation Trending 2nd and 3rd Qtr. 2013 v. Comprehensive Treatment Planning Report vi. COBS Database Report vii. FMH Referrals at ECCF Report viii. Delta Force System Implementation Report
2. minutes and agendas of the suicide prevention leadership group meetings,

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Psychiatric Assessment Re: ECHC and ECCF Page 2 of 5

3. minutes of the correctional health QA & QI minutes, 4. minutes of the mental health review committee, 5. agendas and minutes of the correctional health review committee, and 6. a November 3, 2013 draft document entitled “Constant Observation Treatment Team
in Crisis Bed and Treatment Protocol, and 7. focused review of 43 healthcare records.

During the site visit, I had the opportunity to meet with the following persons:

1. Michael Reardon (First Deputy Superintendent/Compliance), 2. Michael Ranney, M.S., CRC (Director of Forensic Health Services), 3. David Marciniak, R.N. (Director of Correctional Health Services), 4. Christa Cutrona, R.N. (Director of Nursing), 5. Michael Cummings, M.D., 6. Amy Manning (Community Connections of New York), 7. Evelyn Coggins, M.D. (Chief Forensic Psychiatrist), 8. correctional officers in various housing units, and 9. most of the line mental health staff in two group settings.

Overview

Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).

Average facility counts during June-October 2013 were reported as follows:

June July August September October

ECHC 509 522 520 530 500

ECCF 759 768 770 768 752

YANK 34 51 66 58 44

ECMC 4 4 4 1 4

TOTAL 1306 1345 1360 1357 1300

Other pertinent statistics included the following:

ECHC

ECCF/YANK

Average daily intake Average daily population Average length of stay

Male 39.07 455.70 11.68

Female 13.70 60.51 4.36

Total 52.77 516.21 9.76

Male 20.54 718.37 35.09

Female 4.01 95.57 23.81

Total 24.55 813.94 33.24

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Psychiatric Assessment Re: ECHC and ECCF Page 3 of 5

Mean intake Total intake

39

14

53

5978 2097 8075

21

4

3143 615

25 3758

Male Female Combined

Median stay 6 2

7

Male Female Combined

50 12

40

The number of inmates receiving mental health treatment since June 2013 was as follows:

June 2013-October 2013

ECCF June 197 July 230 August 234 Sept. 232 Oct. 208

ECHC June 215 July 204 August 243 Sept. 199 Oct. 225

Staffing

Appendix I provides relevant staffing information for ECHC and ECCF.

During the site visit, I toured the newly renovated space for the reception intake area, detoxification housing and the medical records department. It was well designed and was now operational.

The Stipulated Agreements - Executive Summary

The Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues

At the present time, all provisions of this Agreement that are being monitored by me within this Agreement continue to be in substantial compliance. Appendix III provides a summary of the 3 remaining provisions that are in substantial compliance but not yet for 18 consecutive months. Appendix IV lists the 22 Suicide Prevention Stipulation provisions that have been in substantial compliance for at least 18 months.

By previous agreement of the parties and with approval from Ronald Shansky, M.D., all provisions of this Agreement directly referencing detox services continue to be monitored by Ronald Shansky, M.D. because it is be a more efficient and effective process in the context of his other TCC responsibilities. These provisions are summarized in Appendix VI.

Other provisions of the Suicide Prevention Stipulation continue to be monitored via the Stipulated Order of Dismissal, although specific provisions of the former still apply.

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Psychiatric Assessment Re: ECHC and ECCF Page 4 of 5
The Stipulated Order of Dismissal
The most significant progress re: the provisions of the Stipulated Order of Dismissal since the June 2013 site visit have included the following:
1. successful implementation and continued evolution of the Residential Treatment Unit, 2. completion of the renovated space for the reception intake area, detoxification
housing and the medical records department, 3. beginning roll out of the Delta Force System, and 4. further steps towards the purchase of an electronic medical record.
The credentialing process for the mental health clinicians continues to be a very successful endeavor based on interviews with the mental health staff.
All of the provisions of the Stipulated Order of Dismissal that were assessed to be in substantial compliance during the previous site visit have remained in substantial compliance. An additional 8 provisions have been found to be in substantial compliance during this site assessment. Appendix VIII lists these provisions (in bold). Ten (10) provisions are now newly in substantial compliance for at least 18 months (see Appendix IX), which results in a total of 17 such provisions. All other provisions of this Stipulated Order are in partial compliance.
The leadership exhibited by Mr. Ranney, Dr. Antonius, Dr. Cummings and Dr. Coggins and the evolving QI process remains impressive. The relationship between DMH and the University of Buffalo's Department of Psychiatry continues to be crucial in improving the mental health services. As in the past, the leadership and collaborative actions demonstrated by First Deputy Superintendent/Compliance Michael Reardon have also been essential in this process. The leadership provided by David Marciniak, R.N. (Director of Correctional Health Services), Christa Cutrona, R.N. (DON) and Edwin Heidelberger, M.D. (Chief Medical Officer) has also been impressive.
Appendices
The following appendices are attached to this report:
 Appendix I provides a summary of mental health staffing allocations  Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III lists the provisions of the Stipulated Settlement Agreement and Order
Concerning Suicide Prevention and Related Mental Health Issues (i.e., the Suicide Prevention Stipulation) that are not yet in substantial compliance for at least 18 consecutive months.  Appendix IV lists Suicide Prevention Stipulation provisions in substantial compliance for at least 18 months

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 Appendix V lists duplicative provisions of the Suicide Prevention Stipulation or provisions superceded by the Stipulated Order of Dismissal.
 Appendix VI lists the provisions of the Suicide Prevention Stipulation to be monitored by Ronald Shansky, M.D.
 Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse.  Appendix VIII lists the Stipulated Order provisions that have been found to be in
substantial compliance but for less than 18 consecutive months.  Appendix IX lists the Stipulated Order provisions that have been found to be in
substantial compliance for at least 18 months.  Appendix X is the document request for the next site visit.  Attachment A is a November 15, 2013 report entitled “Erie County Department of
Mental Health Forensic Mental Health Quality Management Report.  Attachment B is a summary relevant to the ECMC bed expansion meeting.
Please note that the formatting in some of these appendices may not correspond to the original Agreements due to cutting and pasting from the original agreements. However, the language (i.e., content of the provisions) is unchanged.
I have reviewed the comments submitted to me by both parties and have made appropriate revisions to my draft report. I am submitting redlined and clean copy versions of Appendix II, which contain these revisions. All other appendices are unchanged from those previously sent to you.
My next site visit will be from May 12-16, 2013. Appendix X provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

 
 Case 1:09-cv-00849-WMS-JJM Document 279 Filed 04/10/15 Page 1 of 5
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
June 14, 2014
To: Michelle Parker, Esq. Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. Trial Attorney, Special Litigation Section U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. (PHB) Washington, D.C. 20530
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, I site visited the Erie County Holding Center (ECHC) from May 12-16, 2014. During the morning of May 14, 2014, I also site visited the Erie County Correctional Facility (ECCF). Michael Ranney (Director of Forensic Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this draft report included review of the following documents:
1. DOH QI studies, which included the following: a. Forensic Mental Health: Medication audit b. Forensic Mental Health: Nurse Medical Record review
2. a May 2014 report entitled “Erie County Department of Mental Health Forensic Mental Health Quality Management Report “(see Attachment A), which covered the following topics:
i. Residential Treatment Unit ii. Crisis Beds iii. Comprehensive Treatment Planning iv. COBS Database Report 3. minutes and agendas of the suicide prevention leadership group meetings, 4. minutes of the correctional health QA & QI minutes, 5. minutes of the mental health review committee,

Case 1:09-cv-00849-WMS-JJM Document 279 Filed 04/10/15 Page 2 of 5
Psychiatric Assessment Re: ECHC and ECCF Page 2 of 5

6. agendas and minutes of the correctional health review committee, and 7. focused review of 16 healthcare records.
During the site visit, I had the opportunity to meet with the following persons:
1. Michael Reardon (First Deputy Superintendent/Compliance), 2. Michael Ranney, M.S., CRC (Director of Forensic Health Services), 3. David Marciniak, R.N. (Director of Correctional Health Services), 4. Christa Cutrona, R.N. (Director of Nursing), 5. Daniel Antonius, Ph.D., 6. Amy Manning (Community Connections of New York), 7. Evelyn Coggins, M.D. (Chief Forensic Psychiatrist), and 8. most of the line mental health staff in two group settings.
Overview
Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).
Relevant statistics included the following:

Average Facility Counts: 11/01/2013-05/04/2014

Month

ECCF

ECHC

Total

November 825

494

1319

December 757

448

1205

January

758

457

1216

February

771

470

1242

March

742

479

1221

April

725

478

1203

May

736

451

1187

Total Facility In Count: 11/01/2013-05/04/2014

Month

ECCF

ECCF

ECHC

Male Ins Female Ins Male Ins

November 1812

408

1307

December 1586

335

1102

January

1746

351

1248

February

1604

714

2550

March

1360

586

2832

ECHC Female Ins 269 231 239 564 580

Total
3796 3254 3584 5432 5358

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Psychiatric Assessment Re: ECHC and ECCF Page 3 of 5

April May TOTALS

1378 729 10215

570 120 3084

2846 522 12407

Facility Specific: 11/01/2013-05/04/2014

568 47 2498

5362 1418 28204

56408

Info
Total Days AVG Daily
Pop Daily Intake AVG Stay Total Intake Median Stay

ECCF Male 123616
668
32 20 6074 2

ECCF Female 17444
94
8 10 1591 1

ECCF Total 141060
762
41 18 7665 2

ECHC Male
78854 426 32 13 5961 4

ECHC Female
8246
44
7 5 1430 2

ECHC Total 87100
470
39 11 7391 3

Staffing

Appendix B provides relevant staffing information for ECHC and ECCF. Attachment C summarizes the annual staffing needs analysis.

During the site visit, I toured the newly renovated space for the reception intake area, detoxification housing and the medical records department. It was well designed and was now operational.

The Stipulated Agreements - Executive Summary

The Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues

Appendix III provides a summary of the last 3 provisions of this specific stipulation, which are monitored by this consultant, to have been found to be in sustained compliance.

Appendix IV lists the 22 Suicide Prevention Stipulation provisions that have been previously assessed to be in substantial compliance for at least 18 months.

By previous agreement of the parties and with approval from Ronald Shansky, M.D., all provisions of this Agreement directly referencing detox services continue to be monitored by Ronald Shansky, M.D. These provisions are summarized in Appendix VI.

Other provisions of the Suicide Prevention Stipulation continue to be monitored via the Stipulated Order of Dismissal, although specific provisions of the former still apply.

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Psychiatric Assessment Re: ECHC and ECCF Page 4 of 5
The Stipulated Order of Dismissal
The most significant progress re: the provisions of the Stipulated Order of Dismissal since the November 2013 site visit have included the following:
1. successful implementation of the treatment team concept in the closed observation bed (COBS) units,
2. achieving substantial compliance re: several medication management provisions, 3. selection of an electronic medical record for implementation in the near future.
Other areas that continue to improve and/or maintained include the following:
1. the credentialing process for the mental health clinicians, 2. the treatment program in the RTU, 3. the treatment program in the COBS bed units, 4. the quality improvement process, 5. the working relationships between medical, mental health and correctional services, 6. the effectiveness of the mental health input into the disciplinary process, and 7. the competency of the line mental health staff clinicians.
All of the provisions of the Stipulated Order of Dismissal that were assessed to be in substantial compliance during the previous site visit have remained in substantial compliance. An additional six (6) provisions have been found to be in substantial compliance during this site assessment. Appendix VIII lists these provisions (in bold). Seven (7) provisions are now newly in sustained compliance for at least 18 months (see Appendix IX), which results in a total of 24 such provisions. Nine (9) provisions of this Stipulated Order remain in partial compliance.
The leadership exhibited by Mr. Ranney, Dr. Antonius, and Dr. Coggins and the evolving QI process remains impressive. The relationship between DMH and the University of Buffalo's Department of Psychiatry continues to be crucial in improving the mental health services. As in the past, the leadership and collaborative actions demonstrated by First Deputy Superintendent/Compliance Michael Reardon have also been essential in this process. The leadership provided by David Marciniak, R.N. (Director of Correctional Health Services) and Christa Cutrona, R.N. (DON) remains impressive.
Appendices
The following appendices are attached to this report:
 Appendix I provides a summary of mental health staffing allocations  Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III lists the provisions of the Stipulated Settlement Agreement and Order
Concerning Suicide Prevention and Related Mental Health Issues (i.e., the Suicide

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Psychiatric Assessment Re: ECHC and ECCF Page 5 of 5
Prevention Stipulation) that have newly been assessed to be in compliance for at least 18 consecutive months.  Appendix IV lists Suicide Prevention Stipulation provisions previously assessed to be in substantial compliance for at least 18 months  Appendix V lists duplicative provisions of the Suicide Prevention Stipulation or provisions superceded by the Stipulated Order of Dismissal.  Appendix VI lists the provisions of the Suicide Prevention Stipulation to be monitored by Ronald Shansky, M.D.  Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse.  Appendix VIII lists the Stipulated Order provisions that have been found to be in substantial compliance but for less than 18 consecutive months.  Appendix IX lists the Stipulated Order provisions that have been found to be in substantial compliance for at least 18 months.  Appendix X is the document request for the next site visit.  Attachment A is a May 2014 report entitled “Erie County Department of Mental Health Forensic Mental Health Quality Management Report.  Attachment B is the 2014 staffing needs analysis.
Please note that the formatting in some of these appendices may not correspond to the original Agreements due to cutting and pasting from the original agreements. However, the language (i.e., content of the provisions) is unchanged.
My next site visit will be from November 17-21, 2014. Appendix X provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

 
 Case 1:09-cv-00849-WMS-JJM Document 280 Filed 04/10/15 Page 1 of 5
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
December 19, 2014
To: Michelle Parker, Esq. Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Zazy Lopez, Esq. Trial Attorney, Special Litigation Section U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. (PHB) Washington, D.C. 20530
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, I site visited the Erie County Holding Center (ECHC) from November 17-21, 2014. Due to the blizzard, I was unable to site visit the Erie County Correctional Facility (ECCF) although I met with the ECCF mental health supervisor and reviewed relevant QI studies. Michael Ranney (Director of Forensic Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this draft report included review of the following documents:
1. DOH QI studies, which included the following: a. Forensic Mental Health: Medication audit b. Forensic Mental Health: Nurse Medical Record review
2. the November 13, 2014 Erie County Department of Mental Health Forensic Mental Health Quality Management Report, which covered the following topics: i. Outpatient Level of Care Review ii. Residential Treatment Unit iii. Crisis Beds iv. Comprehensive Treatment Planning v. COBS Database Report vi. Psychiatric Medications Useless Review vii. Young Men’s Unit Referral Report

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Psychiatric Assessment Re: ECHC and ECCF Page 2 of 5

3. minutes and agendas of the suicide prevention leadership group meetings, 4. minutes of the correctional health QA & QI minutes, 5. minutes of the mental health review committee, 6. agendas and minutes of the correctional health review committee, and 7. focused review of 10 healthcare records.
During the site visit, I had the opportunity to meet with the following persons:
1. Michael Reardon (First Deputy Superintendent/Compliance), 2. Michael Ranney, M.S., CRC (Director of Forensic Health Services), 3. David Marciniak, R.N. (Director of Correctional Health Services), 4. Christa Cutrona, R.N. (Director of Nursing), 5. Daniel Antonius, Ph.D. (Chief of Forensic Mental Health Division, ECMC), 6. Brian Pagkos (Community Connections of New York), 7. Michelle Boehm (Community Connections of New York), 8. Evelyn Coggins, M.D. (Chief Forensic Psychiatrist), 9. Deborah Goldman (Interim DMH Commissioner), and 10. Michael Cummings, M.D. (Executive Director for Behavioral Health, ECMC).
Overview
Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).
Relevant statistics included the following:

MONTH May June July
August September
October November

ECCF 742 744 748 744 753 758 758

ECHC 474 501 522 508 544 530 531

Total 1217 1246 1271 1252 1298 1289 1289

MONTH May June July

ECCF Male Ins 1375 1371 1436

ECCF Female Ins 300 656 354

ECHC Male Ins 1402 2846 1550

ECHC Female Ins 303 648 363

Total 3380 5521 3703

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Psychiatric Assessment Re: ECHC and ECCF Page 3 of 5

August

1367

313

1420

331

3431

September

1373

608

2964

602

5547

October

1411

316

1526

345

3598

November

907

187

792

172

2058

STATS
Total Days AVG Daily
Pop Daily Intake
AVG Stay Total Intake Median Stay

ECCF Male
126767
646
26 24 5213 4

ECCF Female
20133
102
7 13 1478 1

ECCF Total
146900
749
34 21 6691 3

ECHC Male
88980
453
35 12 7040 5

ECHC Female 11893
60
9 6 1806 3

Staffing
Appendix I provides relevant staffing information for ECHC and ECCF.
The Stipulated Agreements - Executive Summary
The Stipulated Settlement Agreement and Order Concerning Suicide Prevention and Related Mental Health Issues
By previous agreement of the parties and with approval from Ronald Shansky, M.D., all provisions of this Agreement directly referencing detox services continue to be monitored by Ronald Shansky, M.D. These provisions are summarized in Appendix VI.
The Stipulated Order of Dismissal
The most significant progress re: the provisions of the Stipulated Order of Dismissal since the May 2014 site visit have included the achievement of sustained in compliance re: the following provisions:
1. the credentialing process, 2. initial treatment plans, 3. mental health subcommittee process, and 4. quality management activities schedule.
Areas that continue to improve and/or maintained include the following:
1. the treatment program in the RTU,

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Psychiatric Assessment Re: ECHC and ECCF Page 4 of 5
2. the treatment program in the COBS bed units, 3. the quality improvement process, 4. the working relationships between medical, mental health and correctional services, 5. the effectiveness of the mental health input into the disciplinary process, and 6. the competency of the line mental health staff clinicians.
The electronic medical record has not yet been implemented.
All of the provisions of the Stipulated Order of Dismissal that were assessed to be in substantial compliance during the previous site visit have remained in substantial compliance except for provision 8.e, which includes the following:
The County will create a Pharmacy and Therapeutics Committee, to assist in creating and implementing guidelines for the prescription of certain types of psychotropic medications. The Committee will meet at least quarterly.
The above provision is now in partial compliance due to lack of quarterly meetings.
An additional three (3) provisions have been found to be in substantial compliance during this site assessment. Appendix VIII lists these provisions (in bold). Another four (4) provisions are now newly in sustained compliance for at least 18 months (see Appendix IX), which results in a total of 27 such provisions. Appendix III lists the seven (7) provisions of this Stipulated Order that remain in partial compliance.
The leadership exhibited by Mr. Ranney, Dr. Antonius, and Dr. Coggins and the QI process remains impressive. The relationship between DMH and the University of Buffalo's Department of Psychiatry continues to be crucial in improving the mental health services. As in the past, the leadership and collaborative actions demonstrated by First Deputy Superintendent/Compliance Michael Reardon and Superintendent Tom Diina have also been essential in this process.
Appendices
The following appendices are attached to this report:
 Appendix I provides a summary of mental health staffing allocations.  Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III lists the provisions that remain in partial compliance.  Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse.  Appendix VIII lists the Stipulated Order provisions that have been found to be in
substantial compliance but for less than 18 consecutive months.  Appendix IX lists the Stipulated Order provisions that have been found to be in
substantial compliance for at least 18 months.  Appendix X is the document request for the next site visit.

Case 1:09-cv-00849-WMS-JJM Document 280 Filed 04/10/15 Page 5 of 5 Psychiatric Assessment Re: ECHC and ECCF Page 5 of 5
 Attachment A is the November 13, 2014 Erie County Department of Mental Health Forensic Mental Health Quality Management Report.
Please note that the formatting in some of these appendices may not correspond to the original Agreements due to cutting and pasting from the original agreements. However, the language (i.e., content of the provisions) is unchanged.
My next site visit will be from June 2-5, 2015. Appendix X provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

 
 Case 1:09-cv-00849-WMS-JJM Document 308 Filed 08/11/17 Page 1 of 15
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
May 23, 2017
To: Michelle Parker, Esq. First Assistant County Attorney Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. Trial Attorney, Special Litigation Section U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. (PHB) Washington, D.C. 20530
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, I site visited the Erie County Holding Center (ECHC) and the Erie County Correctional Facility (ECCF) during May 4-5, 2017. Ronald Schoelerman, LCSW (Director of Intensive Adult Mental Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this draft report included review of the following documents:
1. the Summary of Levels of Care Qualitative Review report (see Attachment A), 2. minutes of the suicide prevention leadership group meeting and health/mental health
review subcommittee meetings from November 2016-February 2017, 3. minutes of the pharmacy and therapeutic committee meetings, 4. agendas and minutes from November 2016-March 2017 of the Correctional Oversight
Committee, 5. Constant Observation Database Information from September 2016-March 2017, 6. Crisis Bed/Constant Observation Trending Reports from September 2016-March
2017, 7. data re: crisis stabilization and transitional unit bed usage at ECMC, and 8. other relevant QI audits/studies.
During the site visit, I had the opportunity to meet with the following persons:

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Psychiatric Assessment Re: ECHC and ECCF Page 2 of 15

1. Michael Reardon (First Deputy Superintendent/Compliance), 2. Ronald Schoelerman, LCSW (Director of Intensive Adult Mental Health Services), 3. Christa Cutrona, R.N., M.S.N. (Director of Correctional Health Division), 4. Crystal Quinn, R.N., B.S.N. (Quality Improvement Nurse), 5. Daniel Antonius, Ph.D. (Director, Division of Forensic Psychiatry, University at
Buffalo), 6. Evelyn Coggins, M.D. (Chief Psychiatrist, ECFMH), 7. Shawntel Davis, LMSW, 8. Danielle Crowley, LCSW, 9. Chrissy Scott, LMSW, and 10. Jill LoBocchiaro, LMHC.
Overview
Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).
Update to the January 2012 site assessment: The Division of Correctional Health provides medical and dental services to both facilities. This had been under the jurisdiction of the County of Erie Department of Health. This is Division now transferred to the jurisdiction of the Erie County Sheriff’s Office. The Intensive Adult Mental Health Services remains under the jurisdiction of the County of Erie Department of Mental Health.
Relevant statistics included the following:

NOV-01-2016 through MAR-31-2017

Month November December
January February March
Month
November December January

ECHC
542 503 512 521 508

ECHC MFC 638 638 638 638 638

ECHC % MFC 85% 79% 80% 82% 80%

ECCF
717 692 692 694 679

ECHC Male INS
1071 1059 1112

ECHC Female INS
173 165 182

ECCF - Male INS
1297 1222 1282

ECCF Female
INS 233
247
260

ECCF MFC 794 794 794 794 794

ECCF MFC %
90% 87% 87% 87% 86%

TOTAL ALL RELEASES

2774 2693 2836

1104 1097 1091

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Psychiatric Assessment Re: ECHC and ECCF Page 3 of 15

February March
Info
Total Days AVG Daily
Pop Daily Intake AVG Stay Total Intake Median Stay

1045 1107
ECHC Male 69363
459
30 15 4576 5

157 184
ECHC Female
8795
58
6 8 1040 4

1206 1266
ECHC Total 78158 517 37 13 5616 5

226 278
ECCF Male 93334
618
19 32 2872 13

2634 2835

993 1156

ECCF Female 11640
77
3 21 548 7

ECCF Total
104974
695
22 30 3420 11

Appendix I provides relevant staffing information for ECHC and ECCF.
The Stipulated Order of Dismissal
The most significant progress re: the provisions of the Stipulated Order of Dismissal since the October 2016 site visit have included the achievement of two additional provisions (4.d. iv & v-- ECMC and inpatient bed provisions) being in substantial compliance for 18 months (i.e., sustained compliance). In addition, I now consider provision C.1 (a & b) to have been in compliance for over 18 months. Appendix IX lists the 50 provisions that have been in sustained compliance for at least 18 months. The provisions newly found to be in sustained compliance are bolded in Appendix IX.
Two provisions of the Stipulated Order of Dismissal that were assessed to be in sustained compliance during the previous site visit are now in partial compliance (3 e & f---response times to urgent and routine referrals), which appears to be due to staffing vacancies and a high staff turnover rate. Both of these issues are likely due to non-competitive salaries, which if not remedied will lead to continued partial compliance. It is unknown at this time whether staffing allocation issues are contributing to the partial compliance.
Appendix III lists the four (4) provisions of this Stipulated Order that remain in partial compliance.
My past two reports included the following:
Funding to significantly expand the ECCF mental health office space via a renovation project was approved by the Legislature on September 11, 2015. This space is needed in order to more adequately provide needed mental health services to inmates at ECCF. The County reports that the DPW is in the process of drafting a contract for an A/E consultant to come on board. Preliminary drawings were completed in 2014, so the design phase should be completed

Case 1:09-cv-00849-WMS-JJM Document 308 Filed 08/11/17 Page 4 of 15
Psychiatric Assessment Re: ECHC and ECCF Page 4 of 15
relatively quickly. The County anticipates a March/April 2016 start to this project, with an expected duration of 5-6 weeks.
It is my current understanding that a contract was recently approved for construction of this project.
The electronic medical record implementation process continues to improve but remains a work in progress due to poor IT support from the vendor. The leadership exhibited by Mr. Schoelerman, Dr. Antonius, and Dr. Coggins remains impressive. The relationship between the Department of Mental Health and the University of Buffalo's Department of Psychiatry continues to be crucial in improving the mental health services.
Appendices
The following appendices are attached to this report:
 Appendix I provides a summary of mental health staffing allocations.  Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III lists the provisions that remain in partial compliance.  Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse.  Appendix VIII lists the Stipulated Order provisions that have been found to be in
substantial compliance but for less than 18 consecutive months.  Appendix IX lists the Stipulated Order provisions that have been found to be in
substantial compliance for at least 18 months.  Appendix X is the document request for the next site visit.  Attachment A is the Summary of Levels of Care Qualitative Review report  Attachments B is a summary of crisis stabilization  Attachment C is the critical psychotropic medication list
Please note that the formatting in some of these appendices may not correspond to the original Agreements due to cutting and pasting from the original agreements. However, the language (i.e., content of the provisions) is unchanged.
My next site visit will be from September 28-29, 2017. Appendix X provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,

Case 1:09-cv-00849-WMS-JJM Document 308 Filed 08/11/17 Page 5 of 15 Psychiatric Assessment Re: ECHC and ECCF Page 5 of 15
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

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Appendix I

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Appendix II

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Appendix III

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Appendix VII

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Appendix VIII

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Appendix IX

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Appendix X

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Attachment A

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Attachment B

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Attachment C

 
 Case 1:09-cv-00849-WMS-JJM Document 311 Filed 11/17/17 Page 1 of 12
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
October 20, 2017
To: Michelle Parker, Esq. First Assistant County Attorney Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. Trial Attorney, Special Litigation Section U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. (PHB) Washington, D.C. 20530
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, I site visited the Erie County Holding Center (ECHC) and the Erie County Correctional Facility (ECCF) during September 28-29, 2017. Ronald Schoelerman, LCSW (Director of Intensive Adult Mental Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this draft report included review of the following documents:
1. the Qualitative Review and Overall ECFMH Summary report (April-August 2017), 2. minutes of the suicide prevention leadership group meeting and health/mental health
review subcommittee meetings from April 2017-August 2017, 3. minutes of the pharmacy and therapeutic committee meetings, 4. agendas and minutes from (April-August 2017) of the Correctional Oversight
Committee, 5. Constant Observation Database Information from (April-August 2017), 6. Crisis Bed/Constant Observation Trending Reports from (April-August 2017), 7. data re: crisis stabilization and transitional unit bed usage at ECMC, and 8. other relevant QI audits/studies.
During the site visit, I had the opportunity to meet with the following persons:

Case 1:09-cv-00849-WMS-JJM Document 311 Filed 11/17/17 Page 2 of 12
Psychiatric Assessment Re: ECHC and ECCF Page 2 of 12

1. Michael Reardon (First Deputy Superintendent/Compliance), 2. Ronald Schoelerman, LCSW (Director of Intensive Adult Mental Health Services), 3. Christa Cutrona, R.N., M.S.N. (Director of Correctional Health Division), 4. Crystal Quinn, R.N., B.S.N. (Quality Improvement Nurse), 5. Daniel Antonius, Ph.D. (Director, Division of Forensic Psychiatry, University at
Buffalo), and 6. Evelyn Coggins, M.D. (Chief Psychiatrist, ECFMH),

Overview

Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).

The Division of Correctional Health provides medical and dental services to both facilities. This had been under the jurisdiction of the County of Erie Department of Health. This is Division now transferred to the jurisdiction of the Erie County Sheriff’s Office. The Intensive Adult Mental Health Services remains under the jurisdiction of the County of Erie Department of Mental Health.

Relevant statistics included the following:

MAY-01-2017 through AUG-31-2017

AVG H/C May June July August

ECHC 451 457 448 447

ECHC MFC 638 638 638 638

ECHC % MFC 70% 72% 70% 70%

ECCF 648 645 644 664

ECCF MFC 794 794 794 794

ECCF MFC % 82% 81% 81% 84%

TOTALS 1099 1102 1092 1111

INS /OUTS May June July August

ECHC - Male INS 1268 1158 1243 1293

ECHC - Female INS 267 238 281 298

ECCF - Male INS 1094 1040 1065 1137

ECCF - Female INS 175 173 175 194

TOTAL 2804 2609 2764 2922

ALL RELEASES 1187 1185 972 1220

STATS Total Days AVG Daily Pop Daily Intake AVG Stay Total Intake Median Stay

ECHC Male 47715 387 31 12 4962 4

ECHC Female 7764 63 7 8 1084 4

ECHC Total 55479 451 39 11 6046 4

ECCF Male 70547 573 21 27 4336 10

ECCF Female 9464 76 3 19 717 6

ECCF Total 80011 650 24 26 5053 9

Appendices I and IA provide relevant staffing information for ECHC and ECCF.

The Stipulated Order of Dismissal

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Psychiatric Assessment Re: ECHC and ECCF Page 3 of 12
Four provisions of the Stipulated Order of Dismissal remain in partial compliance since the last site visit, with at least two of the provisions (response times to urgent and routine referrals) being partially compliant due to staffing vacancies and a high staff turnover rate. Both these issues are likely due to non-competitive salaries, which if not remedied will lead to continued partial compliance. Appendix III lists the four (4) provisions of this Stipulated Order that remain in partial compliance.
One provision (8.f. The County will continue to develop and implement a policy and procedure regarding psychotropic medication non-compliance that meets the standard of care) is newly found to be sustained compliance (see Appendix IX).
My past three reports included the following:
Funding to significantly expand the ECCF mental health office space via a renovation project was approved by the Legislature on September 11, 2015. This space is needed in order to more adequately provide needed mental health services to inmates at ECCF. The County reports that the DPW is in the process of drafting a contract for an A/E consultant to come on board. Preliminary drawings were completed in 2014, so the design phase should be completed relatively quickly. The County anticipates a March/April 2016 start to this project, with an expected duration of 5-6 weeks.
It is my current understanding that a construction has started but is not yet completed.
As stated in prior reports, the leadership exhibited by Mr. Schoelerman, Dr. Antonius, and Dr. Coggins remains impressive. The relationship between the Department of Mental Health and the University of Buffalo's Department of Psychiatry continues to be crucial in improving the mental health services.
Appendices
The following appendices are attached to this report:
 Appendix I provides a summary of mental health staffing allocations.  Appendix IA provides a summary of staffing issues.  Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III lists the provisions that remain in partial compliance.  Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse.  Appendix VIII lists the Stipulated Order provisions that have been found to be in
substantial compliance but for less than 18 consecutive months.  Appendix IX lists the Stipulated Order provisions that have been found to be in
substantial compliance for at least 18 months.  Appendix X is the document request for the next site visit.

Case 1:09-cv-00849-WMS-JJM Document 311 Filed 11/17/17 Page 4 of 12 Psychiatric Assessment Re: ECHC and ECCF Page 4 of 12
Please note that the formatting in some of these appendices may not correspond to the original Agreements due to cutting and pasting from the original agreements. However, the language (i.e., content of the provisions) is unchanged.
My next site visit will be from April 12-13, 2018. Appendix X provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

Case 1:09-cv-00849-WMS-JJM Document 311 Filed 11/17/17 Page 5 of 12 Psychiatric Assessment Re: ECHC and ECCF Page 5 of 12
Appendix I

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Appendix IA

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Appendix II

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Appendix III

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Appendix VII

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Appendix VIII

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Appendix IX

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Appendix X

 
 Case 1:09-cv-00849-WMS-JJM Document 316 Filed 06/27/18 Page 1 of 12
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206 _____ TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155 TAX ID #84-0848664
May 4, 2018
To: Michelle Parker, Esq. First Assistant County Attorney Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. Trial Attorney, Special Litigation Section U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. (PHB) Washington, D.C. 20530
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et al.
As you are aware, I site visited the Erie County Holding Center (ECHC) and the Erie County Correctional Facility (ECCF) during April 10, 2018. Ronald Schoelerman, LCSW (Director of Intensive Adult Mental Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this draft report included review of the following documents:
1. the Qualitative Review and Overall ECFMH Summary report (September 2017February 2018),
2. minutes of the suicide prevention leadership group meeting (October & November 2017 and January - February 2018),
3. minutes of the pharmacy and therapeutic committee meetings, 4. agendas and minutes from (October & November 2017 and January 2018) of the
Correctional Oversight Committee, 5. Constant Observation Database Information from (September 2017-February 2018), 6. Crisis Bed/Constant Observation Trending Reports from (September 2017-February
2018), 7. data re: crisis stabilization and transitional unit bed usage at ECMC, and 8. other relevant QI audits/studies.

Case 1:09-cv-00849-WMS-JJM Document 316 Filed 06/27/18 Page 2 of 12 Psychiatric Assessment Re: ECHC and ECCF Page 2 of 12
During the site visit, I had the opportunity to meet with the following persons:
1. Michael Reardon (First Deputy Superintendent/Compliance), 2. Ronald Schoelerman, LCSW (Director of Intensive Adult Mental Health Services), 3. Christa Cutrona, R.N., M.S.N. (Director of Correctional Health Division), 4. Crystal Quinn, R.N., B.S.N. (Quality Improvement Nurse), 5. Daniel Antonius, Ph.D. (Director, Division of Forensic Psychiatry, University at
Buffalo), and 6. Evelyn Coggins, M.D. (Chief Psychiatrist, ECFMH),
Overview
Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).
The Division of Correctional Health provides medical and dental services to both facilities. This had been under the jurisdiction of the County of Erie Department of Health. This is Division now transferred to the jurisdiction of the Erie County Sheriff’s Office. The Intensive Adult Mental Health Services remains under the jurisdiction of the County of Erie Department of Mental Health.
Rest of Page Intentionally Left Blank

Case 1:09-cv-00849-WMS-JJM Document 316 Filed 06/27/18 Page 3 of 12
Psychiatric Assessment Re: ECHC and ECCF Page 3 of 12

Relevant statistics included the following:

OCT-01-2017 through MAR-15-2018

Month October November December January February March*

ECHC 464 447 409 413 432 444

ECHC MFC 638 638 638 638 638 638

ECHC % MFC 72.72% 70.06% 64.10% 64.73% 67.71% 69.59%

ECCF 630 622 613 618 603 617

ECCF MFC 794 794 794 794 794 794

ECCF MFC % 79.34% 78.33% 77.20% 77.83% 75.94% 77.70%

Month
October November December
January February March*

ECHC Male INS
1206 1087 1019 1108 1092 537

ECHC Female INS
235 212 172 235 187 112

ECCF - Male INS
1060 988 916 984 949 530

ECCF Female
INS 150 139 114 166 140 74

TOTAL
2651 2426 2221 2493 2368 1253

ALL RELEASES
1117 997 846 1093 968 537

Info ECHC Male

Total Days AVG Daily
Pop Daily Intake AVG Stay Total Intake Median Stay

63818 384
27 14 4495
5

ECHC Female
8285 49
5 8 983
4

ECHC Total 72103 433
32 13 5478
5

ECCF Male 92898 559
16 33 2777
12

ECCF Female 9682
58

ECCF Total 102580
617

3

19

18

31

520

3297

6

11

TOTALS 1094 1069 1022 1031 1035 1061

Case 1:09-cv-00849-WMS-JJM Document 316 Filed 06/27/18 Page 4 of 12
Psychiatric Assessment Re: ECHC and ECCF Page 4 of 12
Appendix I provides relevant staffing information for ECHC and ECCF.
The Stipulated Order of Dismissal
Only one provision of the Stipulated Order of Dismissal remains in partial compliance since the last site visit, with two of the elements of this provision (response times to urgent and routine referrals) being partially compliant due to staffing vacancies and a high staff turnover rate. Both these issues are likely due to non-competitive salaries, which if not remedied will lead to continued partial compliance. Appendix III lists the one (1) provision of this Stipulated Order that remains in partial compliance.
Two provisions (4c re: treatment plans) and 4d (re: close observation placement)), which were in partial compliance during the last site assessment, are now in compliance. Appendix VIII lists these two provisions.
Appendix II provides an update re: the above referenced three provisions.
My past three reports included the following:
Funding to significantly expand the ECCF mental health office space via a renovation project was approved by the Legislature on September 11, 2015. This space is needed in order to more adequately provide needed mental health services to inmates at ECCF. The County reports that the DPW is in the process of drafting a contract for an A/E consultant to come on board. Preliminary drawings were completed in 2014, so the design phase should be completed relatively quickly. The County anticipates a March/April 2016 start to this project, with an expected duration of 5-6 weeks.
It is my current understanding that construction is almost completed.
As stated in prior reports, the leadership exhibited by Mr. Schoelerman, Dr. Antonius, and Dr. Coggins remains impressive. The relationship between the Department of Mental Health and the University of Buffalo's Department of Psychiatry continues to be crucial in improving the mental health services.
Appendices
The following appendices are attached to this report:
 Appendix I provides a summary of mental health staffing allocations.  Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal.  Appendix III lists the provisions that remain in partial compliance.  Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse.

Case 1:09-cv-00849-WMS-JJM Document 316 Filed 06/27/18 Page 5 of 12 Psychiatric Assessment Re: ECHC and ECCF Page 5 of 12
 Appendix VIII lists the Stipulated Order provisions that have been found to be in substantial compliance but for less than 18 consecutive months.
 Appendix IX lists the Stipulated Order provisions that have been found to be in substantial compliance for at least 18 months.
 Appendix X is the document request for the next site visit.
Please note that the formatting in some of these appendices may not correspond to the original Agreements due to cutting and pasting from the original agreements. However, the language (i.e., content of the provisions) is unchanged.
My next site visit will be from October 4-5, 2018. Appendix X provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

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Appendix I

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Appendix II

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Appendix III

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Appendix VII

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Appendix VIII

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Appendix IX

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Appendix X

 
 Case 1:09-cv-00849-WMS-JJM Document 319 Filed 11/29/18 Page 1 of 12
JEFFREY L. METZNER, M.D., P.C. 3300 EAST FIRST AVENUE SUITE 590 DENVER, COLORADO 80206
TELEPHONE (303) 355-6842 FACSIMILE (303) 322-2155
TAX ID #84-0848664
October 25, 2018
To: Michelle Parker, Esq. First Assistant County Attorney Erie County Department of Law 95 Franklin St., Room 1634 Buffalo, NY 14202
Marlysha Myrthil, Esq. Trial Attorney, Special Litigation Section U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. (PHB) Washington, D.C. 20530
From: Jeffrey L. Metzner, M.D.
Re: USA v Erie County et a/.
As you are aware, I site visited the Erie County Holding Center (ECHC) and the Erie County Correctional Facility (ECCF) during October 4-5, 2018. Ronald Schoelerman, LCSW (Director oflntensive Adult Mental Health Services) accompanied me throughout this site visit.
Sources of information utilized in compiling this draft report included review of the following documents:
1. the Qualitative Review and Overall ECFMH Summary report (March 2018-August 2018),
2. minutes of the suicide prevention leadership group meeting (May 2018-August 2018), 3. minutes from (May 2018-August 2018) of the Correctional Oversight Committee, 4. Constant 9bservation Database Information from (April2018-August 2018), 5. Crisis Bed/Constant Observation Trending Reports from (April2018-August 2018), 6. data re: crisis stabilization and transitional unit bed usage at ECMC, and 7. other relevant QI audits/studies, including a FMH medication audit (October 2~18).
During the site visit, I had the opportunity to meet with the following persons:
1. Thomas Diina (Jail Management Superintendent), 2. John Rodriguez (First Deputy Superintendent- ECHC),

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3. Paul Evans (First Deputy Superintendent- ECCF), 4. Michael Reardon (First Deputy Superintendent/Compliance), 5. Ronald Schoelerman, LCSW (Director of Intensive Adult Mental Health Services), 6. Christa Cutrona, R.N., M.S.N. (Director of Correctional Health Division), 7. Crystal Quinn, R.N., B.S.N. (Quality Improvement Nurse), 8. Daniel Antonius, Ph.D. (Director, Division of Forensic Psychiatry, University at
Buffalo), and 9. Evelyn Coggins, M.D. (ChiefPsychiatrist, ECFMH),
Overview
Please refer to my January 2012 site assessment report for an overview of the Eric County Correctional Center (ECCF) and the Erie County Holding Center (ECHC). Both facilities are under the authority of Erie County Sheriff and are managed by the Superintendent of the County's Jail Management Division (JMD).
The Division of Correctional Health provides medical and dental services to both facilities. This had been under the jurisdiction of the County of Erie Department of Health. This Division is now transferred to the jurisdiction of the Erie County Sheriffs Office. The Intensive Adult Mental Health Services remains under the jurisdiction of the County of Erie Department of Mental Health.
Relevant census statistics included the following:

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Psychiatric Assessment Re: ECHC and ECCF Page 3 of 12

MAR 16 2018 through AUG 31 2018

Month March*
April May June July August

ECHC 408 404 417 438 427 435

ECHCMFC 638 638 638 638 638 638

ECHC% MFC 63 .95% 63.32% 65 .36% 68.65% 66 .93 % 68 .18 %

ECCF 602 589 544 525 515 505

ECCF MFC 794 794 794 794 794 794

ECCFMFC% 75.82% 74 .18% 68 .51 % 6 6 .13% 64 .86% 63.60%

TOTALS 1046 1042 1055 1076 1065 1073

Month March*
April May June July August

ECHC - Male INS 573 1006 1070 1116 1097 1079

ECHC- Female INS 132 221 242 207 203 213

ECCF- Male INS 334 775 732 704 737 718

ECCF- Female INS 46 114 117 115 104 97

TOTAL 1085 2116 2161 2142 2141 2107

ALL RELEASES 597 969 1071 1131 1018 982

Info Total Days AVG Daily Pop Daily Intake AVG Stay Total Intake Median Stay

ECHCMale 62766 371 25 14 4298 5

ECHC Female 8976 53 5 9 991 5

ECHCTotal 71742 424 31 13 5289 5

ECCFMale 81751 483 11 42 1943 28

ECCF Female 9899 58 2 28 345 14

ECCFTotal 91650 542 13 40 2288 25

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Psychiatric Assessment Re: ECHC and ECCF Page 4 of 12
Appendix I provides relevant staffing information for ECHC and ECCF.
The Stipulated Order of Dismissal
Only one provision (C.3.e.f.: [referral timelin~s]) ofthe Stipulated Order of Dismissal remains ·in partial compliance since the last site visit, with two of the elements of this provision (response times to urgent and routine referrals) being partially compliant due to staffing vacancies and a recent past history of a high staff turnover rate. Both these issues were likely due to noncompetitive salaries, which has now been remedied. There are currently no staffing vacancies except for a psychiatric nurse practitioner. It is anticipated that this provision will soon be in compliance. Appendix III lists this one (1) provision of this Stipulated Order that remains in .partial compliance.
Two provisions (4c re: treatment plans) and 4d (re: close observation placement)), which were in substantial compliance during the last site assessment continue to remain in compliance. It is expected that they will be substantial compliance for 18 consecutive months prior to the next site assessment. Appendix VIII lists these two provisions.
Appendix II provides an update re: the above referenced three provisions.
My past four reports included the following:
Funding to significantly expand the ECCF mental health office space via a renovation project was approved by the Legislature on September 11, 2015. This space is needed in order to more adequately provide needed mental health services to inmates at ECCF. The County reports that the DPW is in the process of drafting a contract for an AlE consultant to come on board. Preliminary drawings were completed in 2014, so the design phase should be completed relatively quickly. The County anticipates a March/April 2016 start to this project, with an expected duration of 5-6 weeks.
This project is now completed and staff have been using this space since the last site visit. I visited the new space, which is a significant improvement from the office space previously used by the mental health staff at ECCF.
As stated in prior reports, the leadership exhibited by Mr. Schoelerman, Dr. Antonius, and Dr. Coggins remains impressive. The relationship between the Department of Mental Health and the University of Buffalo's Department of Psychiatry continues to be crucial in improving the mental health services.
Appendices
The following appendices are attached to this report:

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Psychiatric Assessment Re: ECHC and ECCF Page 5 of 12
• Appendix I provides a summary of mental health staffing allocations. • Appendix II provides a summary of my findings re: the Stipulated Order of Dismissal. • Appendix III lists the provisions that remain in partial compliance. • Appendix VII references an excerpt of the Stipulated Agreement re: Sexual Abuse. • Appendix VIII lists the Stipulated Order provisions that have been found to be m
substantial compliance but for less than 18 consecutive months. • Appendix IX lists the Stipulated Order provisions that have been found to be m
substantial compliance for at least 18 months. • Appendix X is a slightly revised document request for the next site visit.
Please note that the formatting in some of these appendices may not correspond to the original Agreements due to cutting and pasting from the original agreements. However, the language (i.e., content of the provisions) is unchanged.
My next site visit will be from May 2-3, 2019. Appendix X provides a summary of my requests for pre-site information.
Please do not hesitate to contact me if I can answer any further questions.*
Sincerely,
~sJkirm
Jeffrey L Metzner, M.D. Clinical Professor of Psychiatry University of Colorado School of Medicine
*This report was transcribed via the use of voice software, which may explain any typographical errors still present.

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Appendix I

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Appendix II

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Appendix III

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Appendix VII

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Appendix VIII

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Appendix IX

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Appendix X

 
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CASREF,CLOSED_2011,MEDIATION
U.S. DISTRICT COURT U.S. District Court, Western District of New York (Buffalo) CIVIL DOCKET FOR CASE #: 1:09−cv−00849−WMS−JJM

United States of America v. Erie County, New York Assigned to: Hon. William M. Skretny Referred to: Hon. Jeremiah J. McCarthy Related Case: 1:11−cv−00492−WMS−LGF Cause: 28:1335 Interpleader Action
Plaintiff

Date Filed: 09/30/2009 Date Terminated: 08/29/2011 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

United States of America

represented by Aaron Saul Fleisher U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−307−6457 Fax: 202−514−6903 Email: aaron.fleisher@usdoj.gov TERMINATED: 05/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alyssa Connell Lareau U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−514−6255 Fax: 202−514−0212 Email: alyssa.lareau@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles W. Hart , Jr. U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530−5998 202−305−3192 Fax: 202−514−0212 Email: charles.hart@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luis E. Saucedo U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530−5998 202−353−0299 Fax: 202−514−4883 Email: luis.e.saucedo@usdoj.gov TERMINATED: 12/01/2010 LEAD ATTORNEY

Mary Pat Fleming U.S. Attorney's Office Federal Centre 138 Delaware Avenue Buffalo, NY 14202 716−843−5867

Case: 1:09-cv-849 As of: 03/26/2019 05:12 PM EDT 2 of 36
Fax: 716−551−3196 Email: mary.pat.fleming@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R. Bagenstos U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 202−353−9065 Email: samuel.bagenstos@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zazy Ivonne Lopez U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−305−8702 Fax: 202−514−4883 Email: zazy.lopez@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel H. Weiss U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−616−6594 Fax: 202−514−0212 Email: daniel.weiss@usdoj.gov TERMINATED: 05/12/2010
Kathleen M. Mehltretter U.S. Attorney's Office Federal Centre 138 Delaware Avenue Buffalo, NY 14202 716−843−5817 Fax: 716−551−3051 TERMINATED: 03/19/2010
Laura L. Coon U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530−5998 202−514−6255 Fax: 202−514−6903 Email: laura.coon@usdoj.gov ATTORNEY TO BE NOTICED
Marlysha Myrthil U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 202−305−3454 Fax: 202−514−4883 Email: marlysha.myrthil@usdoj.gov ATTORNEY TO BE NOTICED

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V. Defendant Erie County, New York

represented by Michelle M. Parker Erie County Department of Law 95 Franklin Street 16th Floor Buffalo, NY 14202 716−858−2209 Email: parkerm3@erie.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian R. Liebenow Erie County Department of Law 95 Franklin Street 16th Floor Buffalo, NY 14202 716−858−2200 Fax: 716−858−2281 Email: Brian.Liebenow@erie.gov TERMINATED: 03/19/2012
Cheryl A. Green Lippes Mathias Wexler Friedman LLP 50 Fountain Plaza Suite 1700 Buffalo, NY 14202 716−853−5100 Fax: 716−853−5199 Email: cgreen@hamistergroup.com TERMINATED: 10/22/2010
David J. Sleight Erie County Department of Law 95 Franklin Street 16th Floor Buffalo, NY 14202 716−852−6274 Fax: 716−853−8571 Email: david.sleight@ag.ny.gov TERMINATED: 11/10/2011
Jeremy A. Colby Webster Szanyi, LLP 424 Main Street Suite 1400 Buffalo, NY 14202 (716) 842−2800 Fax: (716) 845−6709 Email: jcolby@websterszanyi.com TERMINATED: 03/19/2012
Kristin Klein Wheaton Goldberg Segalla LLP 665 Main Street Suite 400 Buffalo, NY 14203 (716) 566−5497 Fax: (716) 566−5401 Email: kleinwheaton@ecc.edu TERMINATED: 11/15/2010

Case: 1:09-cv-849 As of: 03/26/2019 05:12 PM EDT 4 of 36

Thomas F. Kirkpatrick , Jr. Erie County Department of Law 95 Franklin Street Room 1634 Buffalo, NY 14202 Email: kirkpatt@erie.gov TERMINATED: 03/19/2012

Defendant
Chris Collins County Executive TERMINATED: 08/26/2011

represented by Brian R. Liebenow (See above for address) TERMINATED: 03/19/2012

Cheryl A. Green (See above for address) TERMINATED: 10/22/2010

David J. Sleight (See above for address) TERMINATED: 11/10/2011

Jeremy A. Colby (See above for address) TERMINATED: 03/19/2012

Kristin Klein Wheaton (See above for address) TERMINATED: 11/15/2010

Thomas F. Kirkpatrick , Jr. (See above for address) TERMINATED: 03/19/2012

Defendant
Anthony Billittier IV, MD, County Health Commissioner TERMINATED: 08/26/2011

represented by Jeremy A. Colby (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Thomas F. Kirkpatrick , Jr. (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Brian R. Liebenow (See above for address) TERMINATED: 03/19/2012

Cheryl A. Green (See above for address) TERMINATED: 10/22/2010

David J. Sleight (See above for address) TERMINATED: 11/10/2011

Kristin Klein Wheaton (See above for address) TERMINATED: 11/15/2010

Defendant
Timothy B. Howard Erie Counn ty Sheriff

represented by Brian R. Liebenow (See above for address)

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TERMINATED: 08/26/2011

TERMINATED: 03/19/2012

Cheryl A. Green (See above for address) TERMINATED: 10/22/2010

David J. Sleight (See above for address) TERMINATED: 11/10/2011

Jeremy A. Colby (See above for address) TERMINATED: 03/19/2012

Kristin Klein Wheaton (See above for address) TERMINATED: 11/15/2010

Thomas F. Kirkpatrick , Jr. (See above for address) TERMINATED: 03/19/2012

Defendant
Richard T. Donovan Erie County Undersheriff TERMINATED: 08/26/2011

represented by Jeremy A. Colby (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Thomas F. Kirkpatrick , Jr. (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Brian R. Liebenow (See above for address) TERMINATED: 03/19/2012

Cheryl A. Green (See above for address) TERMINATED: 10/22/2010

David J. Sleight (See above for address) TERMINATED: 11/10/2011

Kristin Klein Wheaton (See above for address) TERMINATED: 11/15/2010

Defendant
Robert Koch Superintendent Administrative Services Division, Jail Management Division TERMINATED: 08/26/2011

represented by Jeremy A. Colby (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Thomas F. Kirkpatrick , Jr. (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Brian R. Liebenow (See above for address) TERMINATED: 03/19/2012

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Cheryl A. Green (See above for address) TERMINATED: 10/22/2010

David J. Sleight (See above for address) TERMINATED: 11/10/2011

Kristin Klein Wheaton (See above for address) TERMINATED: 11/15/2010

Defendant
Barbara Leary First Deputy Superintendent for Erie County Holding Center TERMINATED: 08/26/2011

represented by Jeremy A. Colby (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Thomas F. Kirkpatrick , Jr. (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Brian R. Liebenow (See above for address) TERMINATED: 03/19/2012

Cheryl A. Green (See above for address) TERMINATED: 10/22/2010

David J. Sleight (See above for address) TERMINATED: 11/10/2011

Kristin Klein Wheaton (See above for address) TERMINATED: 11/15/2010

Defendant
Donald Livingston First Deputy Superintendent for Erie County Correctional Facility TERMINATED: 08/26/2011

represented by Jeremy A. Colby (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Thomas F. Kirkpatrick , Jr. (See above for address) TERMINATED: 03/19/2012 LEAD ATTORNEY

Brian R. Liebenow (See above for address) TERMINATED: 03/19/2012

Cheryl A. Green (See above for address) TERMINATED: 10/22/2010

David J. Sleight (See above for address) TERMINATED: 11/10/2011

Kristin Klein Wheaton (See above for address)

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TERMINATED: 11/15/2010

Intervenor
New York Civil Liberties Union (NYCLU) 125 Broad St 19th Floor New York, NY 10004 212 607−3300 TERMINATED: 09/03/2013

represented by Corey Stoughton New York Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−344−3005 x266 Fax: 212−344−3318 Email: cstoughton@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Movant League of Women Voters
Movant Erie County Prisoner Rights Coalition
Movant Partnership for the Public Good

represented by Arthur N. Eisenberg New York Civil Liberties Union 125 Broad Street 19th Floor New York, NY 10004 (212) 607−3324 Fax: (212) 607−3318 Email: arteisenberg@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher T. Dunn NY Civil Liberties Union 125 Broad Street 17th Floor New York, NY 10004 212−344−3005 Fax: 212−344−3329 Email: cdunn@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur N. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher T. Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

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Arthur N. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher T. Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/30/2009
09/30/2009 09/30/2009 09/30/2009 10/19/2009
10/19/2009 10/19/2009
10/19/2009 10/19/2009 10/19/2009 10/19/2009
10/19/2009

# Docket Text
1 COMPLAINT against Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier, filed by United States of America. (Attachments: #(1) Continuance of Exhibits.) (DLC) (Entered: 09/30/2009)
2 AUTOMATIC REFERRAL to Mediation. (DLC) (Entered: 09/30/2009)
Summons Issued as to Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (DLC) (Entered: 09/30/2009)
3 NOTICE of Appearance by Mary Pat Fleming on behalf of United States of America (Fleming, Mary) (Entered: 09/30/2009)
4 AFFIDAVIT of Service for Summons & Complaint served on Barbara Leary, First Deputy Superintendent Erie County Holding Center on October 1, 2009, filed by United States of America. (Attachments: # 1 Exhibit A&B)(Fleming, Mary) (Entered: 10/19/2009)
5 AFFIDAVIT of Service for Summons & Complaint served on Timothy B. Howard, Erie County Sheriff on October 1, 2009, filed by United States of America. (Attachments: # 1 Exhibit A&B)(Fleming, Mary) (Entered: 10/19/2009)
6 AFFIDAVIT of Service for Summons & Complaint served on Donald Livingston, First Deputy Superintendent, Erie County Correctional Facility on October 1, 2009, filed by United States of America. (Attachments: # 1 Exhibit A&B)(Fleming, Mary) (Entered: 10/19/2009)
7 AFFIDAVIT of Service for Summons & Complaint served on The Honorable Christopher Collins, Erie County Executive on October 1, 2009, filed by United States of America. (Attachments: # 1 Exhibit A&B)(Fleming, Mary) (Entered: 10/19/2009)
8 AFFIDAVIT of Service for Summons & Complaint served on Erie County, New York c/o Christopher Collins on October 1, 2009, filed by United States of America. (Attachments: # 1 Exhibit A&B)(Fleming, Mary) (Entered: 10/19/2009)
9 AFFIDAVIT of Service for Summons & Complaint served on Anthony Billittier IV, M.D., Erie County Health Commissioner on October 1, 2009, filed by United States of America. (Attachments: # 1 Exhibit A&B)(Fleming, Mary) (Entered: 10/19/2009)
10 AFFIDAVIT of Service for Summons & Complaint served on Robert Koch, Superintendent, Administrative Services Division, Jail Management Division on October 1, 2009, filed by United States of America. (Attachments: # 1 Exhibit A&B)(Fleming, Mary) (Entered: 10/19/2009)
11 AFFIDAVIT of Service for Summons & Complaint served on Richard T. Donovan, Undersheriff on October 1, 2009, filed by United States of America. (Attachments: # 1 Exhibit A&B)(Fleming, Mary) (Entered: 10/19/2009)

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10/21/2009 10/21/2009 10/21/2009
10/21/2009
10/23/2009 11/01/2009 11/03/2009 11/19/2009 11/23/2009 12/04/2009 12/07/2009 12/08/2009 12/16/2009
01/21/2010
02/04/2010

12 ORDER GRANTING Defendants' request to extend the page limit to 40 pages. Signed by William M. Skretny U.S.D.J. on 10/21/2009. (MEAL) (Entered: 10/21/2009)
13 MOTION to Dismiss the Complaint by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier.(Wheaton, Kristin) (Entered: 10/21/2009)
14 DECLARATION signed by Cheryl A. Green re 13 MOTION to Dismiss the Complaint filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Attachments: # 1 Exhibit A − August 2009 letters, # 2 Exhibit B − 091009 response letter, # 3 Exhibit C − COC lawsuit Ex A−U, # 4 Exhibit C − contd− COC lawsuit Ex V−TT)(Wheaton, Kristin) (Entered: 10/21/2009)
15 MEMORANDUM IN SUPPORT re 14 Declaration, 13 MOTION to Dismiss the Complaint byTimothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Attachments: # 1 Exhibit A − City of Columbus case)(Wheaton, Kristin) (Entered: 10/21/2009)
16 NOTICE of Appearance by Cheryl A. Green on behalf of Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (DLC) (Entered: 10/27/2009)
17 TEXT SCHEDULING ORDER on Defendants' 13 Motion to Dismiss. Response due by 11/23/2009. Reply due by 12/7/2009. Oral Argument is scheduled for 12/16/2009 at 2:00 p.m. SO ORDERED. Issued by William M. Skretny U.S.D.J. on 10/29/2009. (MEAL) (Entered: 11/01/2009)
CALENDAR ENTRY: Oral Argument on Defendants' 13 Motion to Dismiss is scheduled for 12/16/2009 at 2:00 p.m. before William M. Skretny U.S.D.J. (MEAL) (Entered: 11/03/2009)
18 ORDER GRANTING the Plaintiff's request for a page extension. Signed by William M. Skretny U.S.D.J. on 11/18/2009. (MEAL) (Entered: 11/19/2009)
19 RESPONSE in Opposition re 13 MOTION to Dismiss the Complaint filed by United States of America. (Attachments: # 1 Supplement Declaration of United States Attorney)(Lopez, Zazy) (Entered: 11/23/2009)
20 NOTICE by United States of America of Appearance by Samuel R. Bagenstos (Hart, Charles) (Entered: 12/04/2009)
21 REPLY/RESPONSE to re 19 Response in Opposition to Motion filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Wheaton, Kristin) (Entered: 12/07/2009)
22 ORDER GRANTING page extension request. Signed by William M. Skretny U.S.D.J. on 12/7/2009. (MEAL) (Entered: 12/08/2009)
23 Minute Entry for proceedings held before William M. Skretny U.S.D.J.: Oral Argument held on 12/16/2009 on Defendants' 13 Motion to Dismiss the Complaint. Court reserves decision. For the pltf. − Samuel R. Bagenstos, Mary Roach, Zazy Ivonne Lopez. For the defts. − Cheryl Green, Kristin Klein Wheaton. (Court Reporter Michelle McLaughlin.) (MEAL) (Entered: 12/20/2009)
24 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on December 16, 2009, before Judge William M. Skretny. Court Reporter/Transcriber Michelle L. McLaughlin, Telephone number 716−332−3560. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 2/11/2010. Redacted Transcript Deadline set for 2/22/2010. Release of Transcript Restriction set for 4/21/2010. (DLC) (Entered: 01/21/2010)
25 MOTION to Expedite Discovery by United States of America.(Lareau, Alyssa) (Entered: 02/04/2010)

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02/04/2010 02/04/2010 02/04/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/17/2010 02/17/2010 02/23/2010
02/23/2010
02/24/2010
02/26/2010

26 MOTION to Expedite Discovery, Memorandum in Support by United States of America.(Lareau, Alyssa) (Entered: 02/04/2010)
27 MOTION to Expedite Discovery, Declaration of Aaron Fleisher by United States of America. (Attachments: # 1 Exhibit Proposed Interrogatories, # 2 Exhibit Proposed Document Requests, # 3 Exhibit Proposed Request for Entry and Inspection)(Lareau, Alyssa) (Entered: 02/04/2010)
28 MOTION to Expedite Discovery, Declaration of Lindsay M. Hayes by United States of America. (Attachments: # 1 Exhibit Curriculum Vitae of Lindsay M. Hayes, # 2 Exhibit List of Documents Reviewed)(Lareau, Alyssa) (Entered: 02/04/2010)
E−Filing Notification: Username and signature do not match (refer to Administrative Procedures Guide Section 1−3c). Action required: re−file document using same signature and password and file updated proof of service. Re: 25 MOTION to Expedite, and 26 MOTION to Expedite Discovery, Memorandum in Support. (DOT) (Entered: 02/05/2010)
E−Filing Notification: Document filed improperly as a motion. Court terminated motions and modified docket text to correctly reflect filing event as Declarations. No action required. Re: 27 Declaration of Aaron Fleisher, and 28 Declaration of Lindsay M. Hayes. (DLC) (Entered: 02/05/2010)
29 MOTION to Expedite Discovery by United States of America.(Lareau, Alyssa) (Entered: 02/05/2010)
30 Memorandum in Support to expedite by United States of America.(Lareau, Alyssa) Modified on 2/17/2010 (DLC). (Entered: 02/05/2010)
31 TEXT SCHEDULING ORDER on Plaintiff's 29 Motion to Expedite Discovery. Response due by 2/23/2010. Reply due by 2/26/2010. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 2/16/2010. (MEAL) (Entered: 02/17/2010)
E−Filing Notification: Document filed improperly as a motion. Court terminated motion and modified docket text to correctly reflect filing event. No action required. ***Motions terminated: 30 MOTION to Expedite Discovery, Memorandum in Support filed by United States of America. (DLC) (Entered: 02/17/2010)
32 DECLARATION signed by Robert A. Koch, Jr. re 29 MOTION to Expedite Discovery, 25 MOTION to Expedite Discovery filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier in opposition to the DOJ's motion to expedite discovery filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Attachments: # 1 Exhibit A − Suicide Screening Policy, # 2 Exhibit B − Training materials, # 3 Exhibit C − Constant Observation policy, # 4 Exhibit D − Technical Assistance Report, # 5 Exhibit E − NCCHC standards on suicide prevention)(Wheaton, Kristin) (Entered: 02/23/2010)
33 DECLARATION signed by Cheryl A. Green re 29 MOTION to Expedite Discovery, 25 MOTION to Expedite Discovery filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier in opposition to the DOJ's motion to expedite discovery filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Wheaton, Kristin) (Entered: 02/24/2010)
34 MEMORANDUM in Opposition re 29 MOTION to Expedite Discovery, 30 MOTION to Expedite Discovery, Memorandum in Support, 25 MOTION to Expedite Discovery, 28 MOTION to Expedite Discovery, Declaration of Lindsay M. Hayes, 26 MOTION to Expedite Discovery, Memorandum in Support, 27 MOTION to Expedite Discovery, Declaration of Aaron Fleisher filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Wheaton, Kristin) (Entered: 02/24/2010)
35 ORDER GRANTING Plaintiff's page extension request. Signed by William M. Skretny, Chief Judge U.S.D.C. on 2/25/2010. (MEAL) (Entered: 02/26/2010)

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02/26/2010 02/26/2010 02/26/2010 02/26/2010 03/01/2010
03/01/2010 03/04/2010 03/06/2010
03/11/2010 03/11/2010 03/11/2010 03/12/2010 03/12/2010
03/12/2010

36 REPLY to Response to Motion re 29 MOTION to Expedite Discovery filed by United States of America. (Hart, Charles) (Entered: 02/26/2010)
37 DECLARATION signed by Zazy I. Lopez re 36 Reply to Response to Motion filed by United States of America filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hart, Charles) (Entered: 02/26/2010)
38 DECLARATION signed by Lindsay M. Hayes re 36 Reply to Response to Motion filed by United States of America filed by United States of America. (Hart, Charles) (Entered: 02/26/2010)
39 DECLARATION signed by James E. Lawrence re 36 Reply to Response to Motion filed by United States of America filed by United States of America. (Attachments: # 1 Exhibit 1)(Hart, Charles) (Entered: 02/26/2010)
E−Filing Notification: Username and signature do not match (refer to Administrative Procedures Guide Section 1−3c). Action required: re−file document using same signature and password and file updated proof of service. Re: 36 REPLY to Response to Motion re 29 MOTION to Expedite Discovery filed by United States of America. (Hart, Charles.) (DLC) (Entered: 03/01/2010)
40 REPLY to Response to Motion re 29 MOTION to Expedite Discovery filed by United States of America. (Lopez, Zazy) (Entered: 03/01/2010)
41 MOTION for Leave to File Supplemental Declaration by United States of America. (Attachments: # 1 Proposed Declaration of Zazy I. Lopez)(Lopez, Zazy) (Entered: 03/04/2010)
42 DECISION AND ORDER GRANTING the Justice Department's 29 Motion for Expedited Discovery; DIRECTING the defendants to respond to the [27−2] First Set of Interrogatories within 14 days of service; DIRECTING the defendants to respond to the [27−3] First Request for Production of Documents within 14 days of service; DIRECTING the defendants to respond to the [27−4] First Request for Entry and Inspection within 14 days of service; DIRECTING the defendants to permit the Justice Department's attorneys and consultants to enter and inspect the ECHC on March 22 and 23, 2010, for the purposes stated in the [27−4] First Request for Entry and Inspection; GRANTING the Justice Department's 41 Motion to File a Supplemental Declaration. Signed by William M. Skretny, Chief Judge U.S.D.C. on 3/6/2010. (MEAL) (Entered: 03/06/2010)
43 MOTION to Compel Defendants' Compliance with the Court's March 6, 2010 Decision and Order by United States of America. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Lopez, Zazy) (Entered: 03/11/2010)
44 DECLARATION signed by Zazy I. Lopez re 43 MOTION to Compel Defendants' Compliance with the Court's March 6, 2010 Decision and Order filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lopez, Zazy) (Entered: 03/11/2010)
45 MOTION to Expedite Hearing of Motion to Compel (Docket No. 43) by United States of America.(Lopez, Zazy) (Entered: 03/11/2010)
46 MOTION for Protective Order and for a FRCP 16 conference by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier.(Wheaton, Kristin) (Entered: 03/12/2010)
47 AFFIDAVIT re 46 MOTION for Protective Order and for a FRCP 16 conference by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Attachments: # 1 Exhibit A − County Response to FRCP 34 Noticeo of Entry and Inspection, # 2 Exhibit B − Consent Decree from Carey case)(Wheaton, Kristin) (Entered: 03/12/2010)
48 MEMORANDUM IN SUPPORT re 47 Affidavit, 46 MOTION for Protective Order and for a FRCP 16 conference byTimothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Wheaton, Kristin) (Entered: 03/12/2010)

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03/12/2010 03/15/2010 03/15/2010 03/16/2010 03/16/2010 03/17/2010 03/17/2010
03/18/2010 03/18/2010 03/18/2010

49 MOTION to Expedite Hearing under Local Rule 7.1(d) on Motion for Protective Order and for FRCP 16 conference by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier.(Wheaton, Kristin) (Entered: 03/12/2010)
50 RESPONSE to Motion re 46 MOTION for Protective Order and for a FRCP 16 conference filed by United States of America. (Lopez, Zazy) (Entered: 03/15/2010)
51 DECLARATION signed by Zazy I. Lopez re 43 MOTION to Compel Defendants' Compliance with the Court's March 6, 2010 Decision and Order filed by United States of America (Supplemental). (Attachments: # 1 Text of Proposed Order)(Lopez, Zazy) (Entered: 03/15/2010)
52 DECLARATION signed by Cheryl A. Green re 51 Declaration, 50 Response to Motion filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier in further support of the defendants motion for a protective order filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Attachments: # 1 Exhibit A − Newspaper article)(Wheaton, Kristin) (Entered: 03/16/2010)
53 REPLY/RESPONSE to re 51 Declaration, 50 Response to Motion reply memorandum of law on behalf of the defendants filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Wheaton, Kristin) (Entered: 03/16/2010)
54 DECISION AND ORDER GRANTING the parties' 45 49 Motions to Expedite; GRANTING in part and DENYING in part the Justice Department's 43 Motion to Compel; GRANTING in part and DENYING in part the Defendants' 46 Motion for Protective Order. Signed by William M. Skretny, Chief Judge U.S.D.C. on 3/17/2010. (MEAL) (Entered: 03/17/2010)
55 TEXT REFERRAL ORDER − Hon. Jeremiah J. McCarthy, United States Magistrate Judge, is hereby designated to act in this case as follows: Pursuant to 28 U.S.C. § 636(b)(1)(A), all pre−trial matters in this case are referred to the above−named United States Magistrate Judge, including but not limited to: (1) conduct of a scheduling conference and entry of a scheduling order pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all non−dispositive motions or applications, (3) supervision of discovery, and (4) supervision of all procedural matters involving the aforementioned or involving the preparation of the case or any matter therein for consideration by the District Judge. The Magistrate Judge shall not hear and report upon dispositive motions for the consideration of the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), unless further ordered by this Court. All motions or applications shall be filed with the Clerk and made returnable before the Magistrate Judge. The parties are encouraged to consider the provisions of 28 U.S.C. § 636(c) governing consent to either partial or complete disposition of the case, including trial if necessary, by the Magistrate Judge. Consent forms are available from the office of the Magistrate Judge or the office of the Clerk of Court. IT IS SO ORDERED. Issued by Judge William M. Skretny on 3/17/2010. (JCD) (Entered: 03/17/2010)
56 MOTION to Stay re 42 Order on Motion to Expedite,, Order on Motion for Leave to File,,,,,,,,, 54 Order, Terminate Motions, Set Hearings,,, Partial Stay by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier.(Wheaton, Kristin) (Entered: 03/18/2010)
57 AFFIDAVIT re 56 MOTION to Stay re 42 Order on Motion to Expedite,, Order on Motion for Leave to File,,,,,,,,, 54 Order, Terminate Motions, Set Hearings,,, Partial Stay MOTION to Stay re 42 Order on Motion to Expedite,, Order on Motion for Leave to File,,,,,,,,, 54 Order, Terminate Motions, Set Hearings,,, Partial Stay by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Wheaton, Kristin) (Entered: 03/18/2010)
58 MEMORANDUM IN SUPPORT re 56 MOTION to Stay re 42 Order on Motion to Expedite,, Order on Motion for Leave to File,,,,,,,,, 54 Order, Terminate Motions, Set Hearings,,, Partial Stay MOTION to Stay re 42 Order on Motion to Expedite,, Order

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03/18/2010 03/18/2010
03/19/2010
03/19/2010 03/19/2010
03/22/2010 03/22/2010 03/25/2010
03/26/2010 03/30/2010 03/30/2010 04/01/2010 04/01/2010

on Motion for Leave to File,,,,,,,,, 54 Order, Terminate Motions, Set Hearings,,, Partial Stay byTimothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Wheaton, Kristin) (Entered: 03/18/2010)
59 MOTION to Expedite Hearing on Motion for Partial Stay by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier.(Wheaton, Kristin) (Entered: 03/18/2010)
60 TEXT ORDER. IT HEREBY IS ORDERED THAT Defendants' 59 Motion to Expedite its 56 Motion to Stay is GRANTED. Plaintiff shall file its response to Defendants' 56 Motion to Stay by 10:00 a.m. on March 19, 2010, at which time the motion will be taken under advisement. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 3/18/2010. (MEAL) (Entered: 03/18/2010)
61 MEMORANDUM in Opposition re 56 MOTION to Stay re 42 Order on Motion to Expedite,, Order on Motion for Leave to File,,,,,,,,, 54 Order, Terminate Motions, Set Hearings,,, Partial Stay MOTION to Stay re 42 Order on Motion to Expedite,, Order on Motion for Leave to File,,,,,,,,, 54 Order, Terminate Motions, Set Hearings,,, Partial Stay filed by United States of America. (Lopez, Zazy) (Entered: 03/19/2010)
62 DECISION AND ORDER DENYING Defendants' 56 Motion to Stay. Signed by William M. Skretny, Chief Judge U.S.D.C. on 3/19/2010. (MEAL) (Entered: 03/19/2010)
63 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Rule 16 Conference re: facility inspections and interviews held on 3/19/2010. Participants: Mary Pat Fleming/Mary Roach for Plaintiff; Aaron Saul Fleisher, Zazy Ivonne Lopez, Daniel H. Weiss (via telephone) for Plaintiff; Cheryl Green/Kristin Klein Wheaton for Defendants. (DAZ) (Entered: 03/19/2010)
E−Filing Notification: Document missing attorneys electronic signature. Action required: re−file document with proper signature and new proof of service. Re: 61 MEMORANDUM in Opposition filed by United States of America. (Lopez, Zazy) (DLC) (Entered: 03/22/2010)
64 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference re dispute held on 3/22/2010. Participants: Mary Pat Fleming, Daniel H. Weiss for Plaintiff; Cheryl A. Green, Kristin Klein Wheaton for Defendants. (DAZ) (Entered: 03/22/2010)
65 MEMORANDUM in Opposition re 56 MOTION to Stay re 42 Order on Motion to Expedite,, Order on Motion for Leave to File,,,,,,,,, 54 Order, Terminate Motions, Set Hearings,,, Partial Stay MOTION to Stay re 42 Order on Motion to Expedite,, Order on Motion for Leave to File,,,,,,,,, 54 Order, Terminate Motions, Set Hearings,,, Partial Stay filed by United States of America. (Lopez, Zazy) (Entered: 03/25/2010)
66 ORDER OF PRELIMINARY PRETRIAL CONFERENCE set for 4/23/2010 at 02:30 PM before Hon. Jeremiah J. McCarthy. Signed by Hon. Jeremiah J. McCarthy on 3/26/10. (DAZ) (Entered: 03/29/2010)
67 Joint motion to extend the deposition and notice deadlines of Judge Skretny's March 17, 2010 Decision and Order (Zazy I. Lopez) (Filed at the request of Hon. Jeremiah J. McCarthy). (DAZ) (Entered: 03/30/2010)
68 ORDER granting 67 Joint Motion to extend the deposition and notice deadlines of Judge Skretny's March 17, 2010 Decision and Order. Signed by Hon. Jeremiah J. McCarthy on 3/30/10. (DAZ) (Entered: 03/30/2010)
69 Parties' joint motion to adjourn the Preliminary Pretrial Conference (Zazy I. Lopez)(Filed at the request of Hon. Jeremiah J. McCarthy). (DAZ) (Entered: 04/01/2010)
70 TEXT ORDER : The parties' motion to adjourn the preliminary pretrial conference 69 is GRANTED. The April 23, 2010 preliminary pretrial conference is converted to a status conference. The parties may still participate via telephone by providing the court with telephone numbers where they can be contacted. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/1/10. (DAZ) (Entered:

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04/19/2010 04/23/2010 04/26/2010 04/30/2010
04/30/2010
05/04/2010 05/04/2010
05/11/2010 05/27/2010 06/01/2010 06/01/2010

04/01/2010)
71 NOTICE by United States of America of Appearance by Luis E. Saucedo (Hart, Charles) (Entered: 04/19/2010)
72 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference re discovery issues held on 4/23/2010. Participants: Mary Pat Fleming, Luis Saucedo and Zazy Lopez for Plaintiff; Cheryl Green and Kristin Klein Wheaton for Defendants. (DAZ) (Entered: 04/23/2010)
73 TEXT ORDER : A further status conference will be held on May 4, 2010 at 11:00 am. The parties may participate by telephone upon prior notice to chambers. By May 3, 2010, the parties will submit a joint or separate proposals for mediation, including the scope of the mediation and suggestions as to the mediator. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/26/10. (DAZ) (Entered: 04/26/2010)
74 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on March 19, 2010, before Judge Jeremiah McCarthy. Court Reporter/Transcriber Debra L. Potocki, Telephone number 843−723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/21/2010. Redacted Transcript Deadline set for 5/31/2010. Release of Transcript Restriction set for 7/29/2010. (DLC) (Entered: 04/30/2010)
75 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on April 23, 2010, before Judge Jeremiah McCarthy. Court Reporter/Transcriber Debra L. Potocki, Telephone number 843−723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/21/2010. Redacted Transcript Deadline set for 5/31/2010. Release of Transcript Restriction set for 7/29/2010. (DLC) (Entered: 04/30/2010)
76 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference re mediation issues held on 5/4/2010. Participants: Mary Pat Fleming (in person), Zazy Ivonne Lopez and Luis E. Saucedo (via telephone) for plaintiff; Cheryl A. Green and Kristin Klein Wheaton for Defendants. (DAZ) (Entered: 05/04/2010)
77 TEXT ORDER : In accordance with today's proceeding, this case is referred for expedited mediation on the issue of suicide prevention, as well as mental health treatment to the extent it relates to suicide prevention. This referral is without prejudice to the other issues in the case being mediated at a later time. The parties agree that: 1) by May 7, 2010 at 12:00 p.m. they shall advise the court of a mutually agreeable mediator, or if they are unable to reach agreement, they shall submit their proposed mediators (including their availability), and the court will thereafter designate a mediator; 2) by May 14, 2010 at 5:00 p.m. they shall submit their initial mediation statements to the mediator; 3) subject to the mediator's availability, the initial mediation session will occur on May 18−19, 2010; 4) to the extent the Second Circuit has addressed the deliberate indifference standard applicable to this case, such authority will control for purposes of the mediation; 5) the mediation process will conclude by May 28, 2010 at 5:00 p.m.; and 6) a further status conference is set for June 1, 2010 at 1:30 p.m. before Hon. Jeremiah J. McCarthy. Out of town counsel may participate by telephone. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 5/4/10. (DAZ) (Entered: 05/04/2010)
78 ORDER DESIGNATING MEDIATOR. Amy Glass, Esq. is designated as Mediator in this case. Mediation schedule as specified. Signed by William M. Skretny, Chief Judge U.S.D.C. on 5/11/2010. (MEAL) (Entered: 05/11/2010)
79 TEXT ORDER : The June 1, 2010 status conference before Hon. Jeremiah J. McCarthy is rescheduled from 1:30 p.m. to 4:30 p.m. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 5/27/10. (DAZ) (Entered: 05/27/2010)
80 Mediation Certification by Amy Glass(JMS) (Entered: 06/01/2010)
81 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference re discovery issues held on 6/1/2010. Mediation unsuccessful. Parties to

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06/02/2010
06/11/2010 06/11/2010
06/11/2010 06/14/2010 06/15/2010 06/17/2010
06/18/2010 06/18/2010 06/18/2010

submit joint or separate proposed case management deadlines by 6/9/10. Status/Scheduling Conference set for 6/16/2010 at 02:00 PM before Hon. Jeremiah J. McCarthy. Participants: Mary Pat Fleming, Zazy Ivonne Lopez, Regina Jansen (via telephone) for plaintiff and Cheryl A. Green for defendant. (DAZ) (Entered: 06/02/2010)
82 TEXT ORDER: The parties shall confer pursuant to Fed. R. Civ. P. 26(f) and submit a joint or separate proposed case management orders by June 9, 2010. The preliminary pretrial conference is set for June 16, 2010 at 2:00 p.m. before Hon. Jeremiah J. McCarthy. The parties may participate via telephone by providing the court with telephone numbers where they can be contacted. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/2/10. (DAZ) (Entered: 06/02/2010)
83 MOTION to Expedite Discovery in the issue of suicide prevention and related mental health treatment by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier.(Wheaton, Kristin) (Entered: 06/11/2010)
84 DECLARATION signed by Kristin Klein Wheaton re 83 MOTION to Expedite Discovery in the issue of suicide prevention and related mental health treatment filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Attachments: # 1 Exhibit A − May 28 adn June 4 interrogatories, # 2 Exhibit B − May 28 and June 24 Document demands, # 3 Exhibit C − May 28 and June 4 Demand for Expert disclosure, # 4 Exhibit D − May 28 and June 4 notices for deposition of experts)(Wheaton, Kristin) (Entered: 06/11/2010)
85 MEMORANDUM IN SUPPORT re 84 Declaration,, 83 MOTION to Expedite Discovery in the issue of suicide prevention and related mental health treatment byTimothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Wheaton, Kristin) (Entered: 06/11/2010)
86 ORDER GRANTING Plaintiff's request for an extension of the page limitation. Signed by William M. Skretny, Chief Judge U.S.D.C. on 6/14/2010. (MEAL) (Entered: 06/14/2010)
87 TEXT ORDER : At the parties' request, tomorrow's preliminary pretrial conference 82 is rescheduled to June 18, 2010 at 2:00 p.m. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/14/10. (DAZ) (Entered: 06/15/2010)
88 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on June 1, 2010, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi A. Macri, Telephone number 585−613−4310. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/8/2010. Redacted Transcript Deadline set for 7/19/2010. Release of Transcript Restriction set for 9/15/2010. (DLC) (Entered: 06/17/2010)
89 MOTION for Settlement on Suicide Prevention and Related Mental Health Care by United States of America. (Attachments: # 1 Stipulated Settlement Agreement)(Lopez, Zazy) (Entered: 06/18/2010)
90 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference re CMO deadlines held on 6/18/2010. Participants: Mary Pat Fleming (in person), Charles W. Hart, Jr., Zazy Ivonne Lopez and Luis E. Saucedo (via telephone) for plaintiff; Kristin Klein Wheaton and Cheryl A. Green for Defendants. (DAZ) (Entered: 06/18/2010)
93 Minute Entry for proceedings held before William M. Skretny, Chief Judge: Status Conference held on 6/18/2010 on order approving settlement. Counsel to submit a 3rd order with compromise language. For the pltf. − Charles Hart, Luis Saucedo −− by telephone, Mary Pat Fleming. For the defts. − Cheryl Green, Kristin Klein Wheaton. (Court Reporter Michelle McLaughlin.) (MEAL) (Entered: 06/22/2010)

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06/21/2010
06/22/2010 07/09/2010
07/12/2010
07/21/2010 07/22/2010 07/23/2010 08/04/2010 08/04/2010 08/04/2010 08/05/2010 08/05/2010 08/06/2010
08/06/2010

92 CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Discovery completed by 10/5/11, Dispositive motions due by 12/7/11, Pretrial Statements due by 12/21/11, Final Pretrial Conference set for 1/25/12 at 09:00 a.m. before Hon. William M. Skretny, U.S.D.J., Jury Selection set for 3/27/12 at 9:30 a.m. with Jury Trial thereafter set for 09:00 a.m. before Hon. William M. Skretny, U.S.D.J. Status Conference set for 7/21/2010 at 2:00 p.m. before Hon. Jeremiah J. McCarthy. Signed by Hon. Jeremiah J. McCarthy on 6/21/10. (DAZ) (Entered: 06/22/2010)
91 ORDER APPROVING STIPULATED SETTLEMENT AGREEMENT CONCERNING SUICIDE PREVENTION AND RELATED MENTAL HEALTH ISSUES. Signed by William M. Skretny, Chief Judge U.S.D.C. on 6/22/2010. (MEAL) (Entered: 06/22/2010)
94 DECISION AND ORDER DENYING Defendants' 13 Motion to Dismiss; DIRECTING the Justice Department to file an amended complaint within 14 days of the filing date of this Decision and Order; DIRECTING the Defendants to file answers to or otherwise move against the amended complaint within 14 days of its filing. Signed by William M. Skretny, Chief Judge U.S.D.C. on 7/9/2010. (MEAL) (Entered: 07/09/2010)
95 TEXT ORDER. IT HEREBY IS ORDERED THAT, in light of the parties' 89 91 settlement concerning suicide and related mental health issues, Defendants' 83 Motion for Expedited Discovery on those issues is DENIED as moot. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 7/9/2010. (MEAL) (Entered: 07/12/2010)
96 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 7/21/2010. Participants: Mary Pat Fleming (in person), Zazy Lopez, Aaron Saul Fleisher, Charles W. Hart, Jr. (via telephone) for Plaintiff; Cheryl Green and Kristin Klein Wheaton for Defendants. (DAZ) (Entered: 07/22/2010)
CALENDAR EVENT: Status Conference set for 8/25/2010 at 03:00 PM before Hon. Jeremiah J. McCarthy. The parties may participate via telephone by providing the court with telephone numbers where they can be contacted. The court will initiate the call. (DAZ) (Entered: 07/22/2010)
97 AMENDED COMPLAINT against all defendants, filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lopez, Zazy) (Entered: 07/23/2010)
98 MOTION Access to Documents Pursuant to Stipulated Settlement by United States of America. (Attachments: # 1 Memorandum in Support of Motion for Access Pursuant to Stipulated Settlement)(Lareau, Alyssa) (Entered: 08/04/2010)
99 MOTION to Expedite Hearing by United States of America.(Lareau, Alyssa) (Entered: 08/04/2010)
100 MOTION to Seal Document by United States of America. (Attachments: # 1 Text of Proposed Order)(Lareau, Alyssa) (Entered: 08/04/2010)
101 TEXT ORDER. IT HEREBY IS ORDERED THAT the Plaintiff's 100 Motion to Seal is GRANTED. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 8/5/2010. (MEAL) (Entered: 08/05/2010)
103 Sealed Document (SG) (Entered: 08/06/2010)
102 TEXT ORDER : A conference concerning plaintiff's motions [98 and 99] is set for August 6, 2010 at 1:30 p.m. before Hon. Jeremiah J. McCarthy. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 8/6/10. (DAZ) (Entered: 08/06/2010)
104 DECLARATION signed by Charles W. Hart, Jr. re 98 MOTION Access to Documents Pursuant to Stipulated Settlement filed by United States of America. (Attachments: # 1 Exhibit Article, # 2 Exhibit Letter)(Hart, Charles) (Entered: 08/06/2010)

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08/06/2010 08/06/2010
08/10/2010
08/11/2010 08/12/2010
08/12/2010 08/19/2010 08/20/2010 08/23/2010 08/24/2010 08/25/2010 08/25/2010

105 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference re [98, 99] held on 8/6/2010. Participants: Mary Pat Fleming, Zazy Ivonne Lopez, Luis E. Saucedo for Plaintiff; Cheryl A. Green and Kristin Klein Wheaton for Defendants. (DAZ) (Entered: 08/06/2010)
106 TEXT ORDER : As agreed between counsel at today's proceeding: 1) the deadline for defendants' response to plaintiff's discovery demands which are currently due today is extended to August 20, 2010; 2) defendants' response to plaintiff's pending motions for expedited relief [98, 99] shall be filed by August 13, 2010; 3) plaintiff's reply to defendants' response shall be filed by August 18, 2010. Whether to hold oral argument of the motions (as requested by the parties) will be up to Judge Skretny. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 8/6/10. (DAZ) (Entered: 08/06/2010)
107 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference Proceedings held on August 6, 2010, before Judge Jeremiah McCarthy. Court Reporter/Transcriber Debra L. Potocki, Telephone number 843−723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 8/31/2010. Redacted Transcript Deadline set for 9/10/2010. Release of Transcript Restriction set for 11/8/2010. (DLC) (Entered: 08/11/2010)
108 ANSWER to 97 Amended Complaint by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier.(Wheaton, Kristin) (Entered: 08/11/2010)
109 DECLARATION signed by Cheryl A. Green re 104 Declaration, 99 MOTION to Expedite Hearing, 98 MOTION Access to Documents Pursuant to Stipulated Settlement filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier in opposition to the United States' motion for relief under the settlement agreement filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Attachments: # 1 Exhibit A − 080210 ltr from usa to cty, # 2 Exhibit B − Email string, # 3 Exhibit C − 080410 ltr from cty to usa, # 4 Exhibit D − transcript of 080610 proceedings, # 5 Exhibit E − 081010 ltr from usa to cty, # 6 Exhibit F − 081210 ltr from cty to usa)(Wheaton, Kristin) (Entered: 08/12/2010)
110 MEMORANDUM in Opposition re 99 MOTION to Expedite Hearing, 98 MOTION Access to Documents Pursuant to Stipulated Settlement filed by Timothy B. Howard, Richard T. Donovan, Robert Koch, Barbara Leary, Donald Livingston, Erie County, New York, Chris Collins, Anthony Billittier. (Wheaton, Kristin) (Entered: 08/12/2010)
111 MOTION to Withdraw 98 MOTION Access to Documents Pursuant to Stipulated Settlement by United States of America.(Lopez, Zazy) (Entered: 08/19/2010)
112 STIPULATION Regarding Selection of Joint Compliance Officer by United States of America. (Lopez, Zazy) (Entered: 08/20/2010)
113 NOTICE of Appearance by Brian R. Liebenow on behalf of all defendants (Liebenow, Brian) (Entered: 08/23/2010)
114 TEXT ORDER. That the 111 Motion to Withdraw the 98 MOTION to Access Documents Pursuant to Stipulated Settlement Agreement and Order is SO ORDERED. Issued by William M. Skretny, Chief Judge, U.S.D.C. on 8/23/10. (SG) (Entered: 08/24/2010)
115 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference re discovery issues held on 8/25/2010. Participants: Mary Pat Fleming (present), Zazy Ivonne Lopez and Charles W. Hart, Jr. (via telephone) for Plaintiff; Cheryl A. Green and Kristen Klein Wheaton for Defendant. (DAZ) (Entered: 08/26/2010)
116 TEXT ORDER : A further status conference will be held on September 3, 2010 at 2:00 pm to discuss the possibility of a reasonably short extension of defendants' deadline for filing mandatory disclosures. Counsel may participate by telephone upon advance notice to chambers. In the interim, the parties shall confer as to this and any other

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08/31/2010 09/01/2010
09/17/2010 09/24/2010
09/27/2010 10/28/2010 10/28/2010 11/04/2010 11/04/2010 11/04/2010 11/05/2010
11/08/2010 11/08/2010

timing−related issues, and shall advise the court of their positions in writing no later than September 2, 2010.SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 8/25/10. (DAZ) (Entered: 08/26/2010)
CALENDAR EVENT: Status Conference previously set for 9/3/10 at 2:00 p.m. is reset for 9/3/10 at 09:30 a.m. before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 08/31/2010)
117 TEXT ORDER : The court having been advised that the parties have agreed to extend the mandatory disclosures deadline, the September 3, 2010 conference is cancelled. The deadline for exchange of mandatory disclosures is extended to October 1, 2010. All other deadlines of the Case Management Order 92 shall remain in effect. A status conference is set for September 24, 2010 at 4:00 p.m. before Hon. Jeremiah J. McCarthy. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call.SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 9/1/10. (DAZ) (Entered: 09/01/2010)
118 USCA ORDER that petitioner through counsel, has filed a petition for writ of mandamus. Upon due consideration, it is ORDERED that the mandamus petition is Denied as moot. Signed by Catherine O'Haga Wolfe, Clerk on 9/16/2010. (DLC) (Entered: 09/20/2010)
119 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference (to monitor discovery) held on 9/24/2010, ( Further Status Conference set for 11/17/2010 03:00 PM before Hon. Jeremiah J. McCarthy.). Text Order to follow. For Pltf, AUSA Mary Pat Fleming, Zazy Lopez and Alyssa Lareau. For Deft, Kristin Wheaton, Brian Liebenow and Thomas Kirkpatrick. NOTE: Court notes Atty Kirkpatrick is not listed on the docket. Atty Kirkpatrick indicates he will make arrangements to be added to the docket. (Court Reporter FTR Gold.) (LL) (Entered: 09/24/2010)
120 TEXT ORDER : A further status conference will be held on November 17, 2010 at 3:00 pm. Counsel may participate by telephone upon advance notice to chambers.SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 9/27/10. (DAZ) (Entered: 09/27/2010)
121 NOTICE of Appearance by Thomas F. Kirkpatrick, Jr on behalf of Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston (Kirkpatrick, Thomas) (Entered: 10/28/2010)
122 NOTICE of Appearance by David J. Sleight on behalf of All Defendants (Sleight, David) (Entered: 10/28/2010)
123 MOTION Enforcement of Stipulated Settlement by United States of America. (Attachments: # 1 Memorandum in Support)(Hart, Charles) (Entered: 11/04/2010)
124 DECLARATION re 123 MOTION Enforcement of Stipulated Settlement filed by United States of America. (Hart, Charles) (Entered: 11/04/2010)
125 MOTION to Expedite Motion for Enforcement of Stipluated Settlement 123 by United States of America.(Hart, Charles) (Entered: 11/04/2010)
126 ORDER GRANTING Plaintiff's 125 Motion to Expedite; SETTING a response date of 11/8/2010, 5:00 p.m.; SETTING a reply date of 11/9/2010, noon. SCHEDULING a Status Conference for 11/10/2010 at 10:30 AM before William M. Skretny, Chief Judge. Signed by William M. Skretny, Chief Judge U.S.D.C. on 11/5/2010. (MEAL) (Entered: 11/05/2010)
127 NOTICE by United States of America of Appearance by Laura L. Coon (Hart, Charles) (Entered: 11/08/2010)
128 DECLARATION in Opposition re 123 MOTION Enforcement of Stipulated Settlement filed by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Kirkpatrick, Thomas) Modified on 11/9/2010 (DLC). (Entered: 11/08/2010)

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129 MEMORANDUM in Opposition re 123 MOTION Enforcement of Stipulated Settlement filed by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Kirkpatrick, Thomas) (Entered: 11/08/2010)
E−Filing Notification: Incorrect event used to electronically file document. For future reference, use (Declaration) event. No action required. Title of document changed to describe the correct title re 128 AFFIDAVIT in Opposition re 123 MOTION Enforcement of Stipulated Settlement filed by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Kirkpatrick, Thomas) (DLC) (Entered: 11/09/2010)
E−Filing Notification: No proof of service. Action required: File proof of service RE 129 MEMORANDUM in Opposition re 123 MOTION Enforcement of Stipulated Settlement filed by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Kirkpatrick, Thomas) (DLC) (Entered: 11/09/2010)
E−Filing Notification: Username and signature do not match (refer to Administrative Procedures Guide Section 1−3c). Action required: re−file document using same signature and password and file updated proof of service. RE 127 NOTICE by United States of America of Appearance by Laura L. Coon (Hart, Charles) (DLC) (Entered: 11/09/2010)
130 MEMORANDUM in Opposition re 123 MOTION Enforcement of Stipulated Settlement filed by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Kirkpatrick, Thomas) (Entered: 11/09/2010)
131 REPLY to Response to Motion re 123 MOTION Enforcement of Stipulated Settlement filed by United States of America. (Hart, Charles) (Entered: 11/09/2010)
E−Filing Notification: For future reference, attorney signature must be in proper format (full signature block, i.e s/attorney name typed, firm and firm address and attorney email address). No action required. 130 MEMORANDUM in Opposition re 123 MOTION Enforcement of Stipulated Settlement filed by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Kirkpatrick, Thomas) (DLC) (Entered: 11/10/2010)
132 NOTICE of Appearance by Laura L. Coon on behalf of United States of America. (DLC) (Entered: 11/10/2010)
133 Minute entry for proceedings held before William M. Skretny U.S.D.J.: Motion Hearing held on 11/9/2010 re 123 Motion on Enforcement of Stipulated Settlement. The Court denies the motion. For the pltf. − Charles Hart, Mary Pat Fleming, Laura Coon, Zazy Lopez. For the defts. − Thomas Kirkpatrick, Brian Liebenow, David Sleight. (Court Reporter Michelle McLaughlin.)(EAK) (Entered: 11/17/2010)
134 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 11/17/2010. Participants: Mary Pat Fleming (in person), Zazy Ivonne Lopez and Alyssa Connel Lareau (via telephone) for Plaintiff; Thomas F. Kirkpatrick, Jr. and Brian Liebenow (in person)for Defendants. A further status conference to be scheduled. (DAZ) (Entered: 11/17/2010)
135 TEXT ORDER : A further status conference will be held on December 17, 2010 at 2:00 pm. Counsel may participate by telephone upon advance notice to chambers.SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 11/17/10. (DAZ) (Entered: 11/17/2010)
136 MOTION to Modify the Case Management Order to Extend the Deadline to Amend the Complaint by United States of America.(Fleming, Mary) (Entered: 12/01/2010)
137 MEMORANDUM in Support re 136 MOTION to Modify the Case Management Order to Extend the Deadline to Amend the Complaint filed by United States of America. (Fleming, Mary) (Entered: 12/01/2010)

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138 DECLARATION re 136 MOTION to Modify the Case Management Order to Extend the Deadline to Amend the Complaint filed by United States of America. (Fleming, Mary) (Entered: 12/01/2010)
E−Filing Notification: Username and signature do not match (refer to Administrative Procedures Guide Section 1−3c). Action required: re−file document using same signature and password and file updated proof of service. Re: 136 MOTION to Modify the Case Management Order to Extend the Deadline to Amend the Complaint, and 137 MEMORANDUM in Support re 136 MOTION to Modify the Case Management Order to Extend the Deadline to Amend the Complaint filed by United States of America. (filed by Fleming, Mary.) (DLC) (Entered: 12/02/2010)
139 MOTION To modify the case management order to extend the deadline to amend the complaint by United States of America.(Fleming, Mary) (Entered: 12/02/2010)
140 MEMORANDUM in Support re 139 MOTION To modify the case management order to extend the deadline to amend the complaint filed by United States of America. (Fleming, Mary) (Entered: 12/02/2010)
141 DECLARATION filed by United States of America. (Fleming, Mary) (Entered: 12/02/2010)
142 TEXT ORDER: Defendants' response to plaintiff's motion to extend the deadline to amend the complaint 139 shall be served and filed on or before December 9, 2010; plaintiff's reply, if any, shall be served and filed on or before December 13, 2010, after which time the motion will be taken under advisement without oral argument unless requested by one of the parties or deemed necessary by the court. Issuyed by Hon. Jeremiah J. McCarthy on 12/2/10. (LL) (Entered: 12/02/2010)
143 DECLARATION signed by Thomas F. Kirkpatrick, Jr. re 139 MOTION To modify the case management order to extend the deadline to amend the complaint filed by Richard T. Donovan, Erie County, New York, Anthony Billittier, Robert Koch, Donald Livingston, Chris Collins, Timothy B. Howard, Barbara Leary filed by Richard T. Donovan, Erie County, New York, Anthony Billittier, Robert Koch, Donald Livingston, Chris Collins, Timothy B. Howard, Barbara Leary. (Kirkpatrick, Thomas) (Entered: 12/09/2010)
144 MEMORANDUM in Opposition re 139 MOTION To modify the case management order to extend the deadline to amend the complaint filed by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Kirkpatrick, Thomas) (Entered: 12/09/2010)
145 MOTION to Withdraw 139 MOTION To modify the case management order to extend the deadline to amend the complaint by United States of America.(Lareau, Alyssa) (Entered: 12/13/2010)
146 ORDER withdrawing 139 Motion to Extend and granting 145 Motion to Withdraw. Signed by Hon. Jeremiah J. McCarthy on 12/13/10. (DAZ) (Entered: 12/14/2010)
147 Stipulation−Selection of Mediator by United States of America (Attachments: # 1 Certificate of Service)(Hart, Charles) (Entered: 12/15/2010)
148 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference to report on discovery issues, appointment of mediator and upcoming inspection) held on 12/17/2010. A further status conference is set for 1/19/11 at 2:00 p.m. before Hon. Jeremiah J. McCarthy. For Pltf, AUSA Mary Pat Fleming, Zazy Lopez and Alyssa Lareau (via telephone). For Defts Thomas F. Kirkpatrick, Jr. and David J. Sleight. (Court Reporter FTR Gold.) (DAZ) (Entered: 12/17/2010)
149 TEXT ORDER : In accordance with today's status conference, either party may file a motion seeking to amend the Case Management Order 92 deadlines by January 12, 2011, and a response, if any, shall be filed by January 17, 2011. A status conference is set for January 19, 2011 at 2:00 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. In advance of this conference, and all future monthly status conferences, the parties shall submit (either jointly or individually) letters identifying any issues they wish to address at the conference. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 12/17/10.

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(DAZ) (Entered: 12/17/2010)
*** MOTION TERMINATED*** 136 Motion Withdrawn. (DAZ) (Entered: 12/17/2010)
150 NOTICE of Appearance by Marlysha Myrthil on behalf of United States of America (Myrthil, Marlysha) (Entered: 12/23/2010)
151 MOTION for Protective Order Notice of Motion by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston.(Kirkpatrick, Thomas) (Entered: 01/03/2011)
152 Declaration of Thomas F. Kirkpatrick, Jr. by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kirkpatrick, Thomas) Modified on 1/4/2011 (DLC). (Entered: 01/03/2011)
153 Memorandum of Law by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston.(Kirkpatrick, Thomas) Modified on 1/4/2011 (DLC). (Entered: 01/03/2011)
154 TEXT ORDER : A status conference concerning defendants' motion for a protective order 151 is set for January 5, 2011 at 3:00 p.m. before Hon. Jeremiah J. McCarthy. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 1/4/11. (DAZ) (Entered: 01/04/2011)
E−Filing Notification: Incorrect event used to electronically file document. For future reference, use (Declaration) event. No action required. Document retitled on system and motion terminated Re 152 MOTION for Protective Order Declaration of Thomas F. Kirkpatrick, Jr. (DLC) (Entered: 01/04/2011)
E−Filing Notification: Incorrect event used to electronically file document. For future reference, use (Memorandum/Brief) event. No action required. Document retitled on system and motion terminated Re 153 MOTION for Protective Order Memorandum of Law. (DLC) (Entered: 01/04/2011)
155 TEXT ORDER : At plaintiff's request and with defendants' consent, tomorrow's conference is rescheduled to 2:00 p.m. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 9−849. (DAZ) (Entered: 01/04/2011)
156 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 1/5/2011. Discussion re: defense mtn filed 1−3−11 (#151), Pltf letter response received today. Court not treating today's proceeding as formal oral argument on the mtn, court recognizes the time sensitivity, service of the notice and filing of mtn timetable. Court further notes discussions were ongoing until last week, etc. Court notes from 12−17−10 reference made there might be a dispute to further inspections. Court query −− why is inspection time sensitive followed by responses from attys and colloquy re: modification of the Case Management Order −− court reqs details from experts what they hope to accomplish by inspections and why needed in addition to what was previously produced. Court proposes options: let inspections go forward next week as scheduled and reqs parties to work together −− if county deems inspections burdensome/unreasonable they can reqs allocation of costs later in case OR (court's preference) adjmt until court is more familiar with what/why it is needed to facilitate court's decision. Court not inclined to rule no inspection can take place under any circumstances nor not necessarily going to decide inspection can take place without restriction/ possibility of some cost being assessment in the future, etc. Court reiterates its lack of knowledge of the details, preference to do brief adjournment of inspection to focus on issue more and adjust the CMO if necessary. Both parties have no objection. Defense advises forensic mental health portion of the inspection is going forward next week (no dispute to conduct) −− staff ready to handle −− as to the balance of the issues re: inspection of medical and sanitation defense has no objection to adjmt −− defense notes Gov't did not articulate reqs as stated on the record −− notes Gov't did see significant amt of charts, treating facility, uncertain what else is being requested to view −− prepared to go foward w/mental health inspection Monday. Plaintiff agree to adjmt and extension of CMO −− Pltf has been communicating w/defense −− reqs clarification of inspection reqs −− was limited to one day at

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01/06/2011
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correctional center, etc. Court notes it is willing to adjust CMO. Pltf advise court names of expert(s) and willing to go forward on a partial basis. COURT ADVISES ATTYS MTN WILL REMAIN PENDING, FORENSIC MENTAL HEALTH EXAM SCHEDULED FOR NEXT WILL GO FORWARD, OTHER INSPECTIONS WILL BE DEFERRED PENDING FURTHER CONSIDERATION OF THE MTN −− COURT DEFERS re: TIME PERIOD FOR EXTENSION OF CMO (deadlines will be adjusted appropriately). Court sets timetable for Pltf formal response to mtn, in conjjnction court reqs details from experts why they need add'l discovery and why they feel not given the last time, parties to continue discussions (hopefully reach resolution) −− otherwise court will decide mtn before re−scheduled inspection commences. Parties agree. Pltf query −− helpful to have signed declarations from experts re: what they intend to see and do? Court responds in the affirmative and reqs experts state why. TEXT ORDER TO FOLLOW. Court advises parties it is available next week re: inspection if issues arise. For Pltf, Z. Lopez and A. Lareau (via phone). For Deft, T. Kirkpatrick (via phone). (Court Reporter FTR Gold.) (LL) (Entered: 01/05/2011)
157 TEXT ORDER : In accordance with yesterday's conference, the previously scheduled January 10, 2010 forensic mental health inspection will proceed as scheduled. All other inspections will be deferred pending resolution of defendants' motion for a protective order 151 and the applicable Case Management Order 92 deadlines will be adjusted accordingly. Plaintiff's response to defendants' motion for a protective order 151 shall be served and filed on or before January 14, 2011. It shall include declarations from plaintiff's experts explaining why further inspections are necessary and why this discovery was not obtained during the initial inspections. Plaintiff's response shall also include its request to amend the Case Management Order. Defendants' reply shall be served and filed on or before January 18, 2011. Oral argument of these issues is set for January 19, 2011 at 2:00 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 1/6/11. (DAZ) (Entered: 01/06/2011)
158 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on December 17, 2010, before Judge Honorable Jeremiah J. McCarthy. Court Reporter/Transcriber Michelle L. McLaughlin, Telephone number 716−332−3560. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 1/31/2011. Redacted Transcript Deadline set for 2/8/2011. Release of Transcript Restriction set for 4/8/2011. (DR) (Entered: 01/11/2011)
159 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 25, 2010, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Michelle L. McLaughlin, Telephone number 716−332−3560. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 1/31/2011. Redacted Transcript Deadline set for 2/10/2011. Release of Transcript Restriction set for 4/11/2011. (DLC) (Entered: 01/13/2011)
160 RESPONSE in Opposition re 151 MOTION for Protective Order Notice of Motion filed by United States of America. (Attachments: # 1 Exhibit)(Hart, Charles) (Entered: 01/14/2011)
161 DECLARATION signed by Robert Greifinger re 160 Response in Opposition to Motion filed by United States of America filed by United States of America. (Hart, Charles) (Entered: 01/14/2011)
162 DECLARATION signed by Harry Grenawitzke re 160 Response in Opposition to Motion filed by United States of America filed by United States of America. (Hart, Charles) (Entered: 01/14/2011)
163 DECLARATION signed by Zazy Lopez re 160 Response in Opposition to Motion filed by United States of America filed by United States of America. (Hart, Charles) (Entered: 01/14/2011)

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164 DECLARATION signed by Lori Rifkin re 160 Response in Opposition to Motion filed by United States of America filed by United States of America. (Hart, Charles) (Entered: 01/14/2011)
165 CALENDAR EVENT: Oral Argument set for 1/19/2011 at 02:00 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 01/18/2011)
166 REPLY to Response to Motion re 151 MOTION for Protective Order Notice of Motion filed by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Kirkpatrick, Thomas) (Entered: 01/18/2011)
167 DECLARATION re 151 MOTION for Protective Order Notice of Motion filed by Richard T. Donovan, Erie County, New York, Anthony Billittier, Robert Koch, Donald Livingston, Chris Collins, Timothy B. Howard, Barbara Leary filed by Richard T. Donovan, Erie County, New York, Anthony Billittier, Robert Koch, Donald Livingston, Chris Collins, Timothy B. Howard, Barbara Leary. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kirkpatrick, Thomas) (Entered: 01/18/2011)
168 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Oral Argument held on 1/19/11 regarding defendants' motion for a protective order 151 and the applicable Case Management Order 92 deadlines. Court will issue a revised Case Management Order with the deadlines discussed and a text order directing that the motion for protective order is granted in part and denied in part. A further status conference is set for 2/24/11 at 3:30 p.m. Participants: Mary Pat Fleming, Zazy Ivonne Lopez, Lori Rifkin and Laura L. Coon for Plaintiff. Thomas F. Kirkpatrick, Jr., Brian R. Liebenow and David J. Sleight for Defendants. (DAZ) (Entered: 01/19/2011)
169 TEXT ORDER : For the reasons stated at today's proceeding, defendants' motion for a protective order 151 is denied to the extent it seeks to bar any further inspections related to plaintiff's medical care and environmental safety claims, but granted to the extent that the additional inspections by plaintiff's medical care and environmental safety consultants will not exceed 2 days for each inspection. The inspections may occur separately or concurrently. To the extent possible, the parties shall coordinate the production of documents in advance of these inspections. A further status conference is set for February 24, 2011 at 3:30 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 1/19/11. (DAZ) (Entered: 01/19/2011)
170 AMENDED CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Discovery completed by 11/11/11, Dispositive motions due by 1/20/12, Pretrial Statements due by 2/3/12, Final Pretrial Conference set for 3/5/12 at 09:00 AM before Hon. William M. Skretny, U.S.D.J., Jury Selection set for 5/8/12 at 9:30 AM with Jury Trial to commence thereafter before Hon. William M. Skretny, U.S.D.J. Signed by Hon. Jeremiah J. McCarthy on 1/20/11. (DAZ) (Entered: 01/20/2011)
171 TEXT ORDER : A discovery conference concerning plaintiff's January 25, 2011 letter to the court is set for February 4, 2011 at 2:30 p.m. Counsel may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 1/28/11. (DAZ) (Entered: 01/28/2011)
172 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Discovery Hearing concerning plaintiff's January 25, 2011 letter to the court held on 2/4/2011. Text order to follow. Participants: Zazy Ivonne Lopez, Laura L. Coon, Marlysha Myrthil, Lori Rifkin, Aaron Saul Fleischer (all parties via telephone) for Plaintiff; Thomas F. Kirkpatrick, Jr., Brian R. Liebenow, David J. Sleight for Defendant. (DAZ) (Entered: 02/04/2011)
173 TEXT ORDER : In accordance with today's proceeding, defendants shall promptly identify to plaintiff in writing which discovery referenced in plaintiff's January 25, 2011 letter to the court will be produced and when these productions will occur. If there is any requested discovery defendants do not intend to produce, they shall

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explain why it is not being produced. The parties shall continue to confer in an attempt to further narrow these issues, including production of electronic communications. The parties shall submit letters to the court by February 22, 2010 identifying those areas, if any, that remain in dispute and their respective positions. If necessary, these issues will be addressed at the previously scheduled February 24, 2011 conference. The deadline for the plaintiff's mediation submission is extended from February 23, 2011 to February 28, 2011. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 2/4/11. (DAZ) (Entered: 02/04/2011)
174 JOINT COMPLIANCE OFFICER FIRST REPORT (Attachments: #(1) Continuance, #(2) Continuance, #(3) Continuance.) (DLC) (Entered: 02/15/2011)
175 MANDATE denying petition for a writ of mandamus. (DLC) (Entered: 02/15/2011)
176 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference to discuss issues in plaintiff's letter to the court dated 2/22/11 held on 2/24/2011. Text order to follow. Appearances: Zazy Ivonne Lopez, Alyssa Connell Lareau, Aaron Saul Fleisher (all participating via telephone); Thomas F. Kirkpatrick, Jr., David J. Sleight for Defendants. (DAZ) (Entered: 02/25/2011)
177 TEXT ORDER : In accordance with yesterday's proceeding, defendants shall advise plaintiff (and the Court) by February 28, 2011 of their proposed timetable for production of the outstanding shift summary reports and annual reports. Defendants shall provide plaintiff with a privilege log detailing the witness statements being withheld by March 10, 2011. Plaintiff's motion to compel production of the witness statements, if any, shall be served and filed by March 21, 2011. A further status conference is set for March 21, 2011 at 4:00 p.m. At that time, defendants shall be prepared to propose a timetable for production of the responsive e−mails and a briefing schedule on plaintiff's motion to compel the witness statements will be set, if necessary. If the parties have any additional discovery issues that they wish to address, they shall advise the court of these issues sufficiently in advance of the March 21, 2011 conference. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 2/25/11. (DAZ) (Entered: 02/25/2011)
178 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held to discuss document production on 3/21/2011. Appearances: Mary Pat Fleming, Zazy Lopez, Lori Rifkin, Marlysha Myrthil (all via telephone) for Plaintiff; Thomas F. Kirkpatrick, Jr. and Brian R. Liebenow for Defendants. (DAZ) (Entered: 03/22/2011)
179 TEXT ORDER : In accordance with yesterday's proceeding, defendants have agreed to produce a complete copy of Erie County's forensic mental health procedures by April 4, 2011. A further conference is set for March 29, 2011 at 4:30 p.m. The parties may participate via telephone upon advance notice to chambers. In the interim, the parties shall confer in an attempt to reach consensus on a clawback agreement for defendants' e−mail production, and defendants shall be prepared to advise the court of a date certain for this production (whether or not a clawback agreement is in place). Plaintiff may also submit case authority in support of its arguments directed at the sufficiency of defendants' privilege log. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 3/22/11. (DAZ) (Entered: 03/22/2011)
180 TEXT ORDER : At the parties' request, the March 29, 2011 conference 179 is rescheduled to March 30, 2011 at 4:00 p.m. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 3/25/11. (DAZ) (Entered: 03/25/2011)
181 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 19, 2011, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi A. Macri, Telephone number 585−613−4310. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 4/20/2011. Redacted Transcript Deadline set for 5/2/2011. Release of Transcript Restriction set for 6/28/2011. (DLC) (Entered: 03/30/2011)
182 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 3/30/2011. Update on progress relating to possible clawback agreement for defendants' e−mail production. No date certain provided. Court sets date

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03/31/2011 03/31/2011 04/14/2011
04/14/2011
04/21/2011 04/26/2011 04/26/2011
05/02/2011 05/10/2011 05/11/2011

certain. Text order to follow. Appearances: Mary Pat Fleming, Zazy Lopez, Lori Rifkin, Marlysha Myrthil (all via telephone) for Plaintiff; Thomas F. Kirkpatrick, Jr., Jeremy Colby and David J. Sleight for Defendants. (DAZ) (Entered: 03/31/2011)
CALENDAR EVENT: Status Conference set for 4/26/2011 at 03:00 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 03/31/2011)
183 TEXT ORDER : In accordance with yesterday's conference, defendants' e−mail production shall be completed in its entirety by May 23, 2011. A further status conference is set for April 26, 2011 at 3:00 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 3/31/11. (DAZ) (Entered: 03/31/2011)
184 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/21/11, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi A. Macri, Telephone number (585) 613−4310. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/5/2011. Redacted Transcript Deadline set for 5/16/2011. Release of Transcript Restriction set for 7/13/2011. (DZ) (Entered: 04/14/2011)
185 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/30/11, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi A. Macri, Telephone number (585) 613−4310. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/5/2011. Redacted Transcript Deadline set for 5/16/2011. Release of Transcript Restriction set for 7/13/2011. (DZ) (Entered: 04/14/2011)
186 NOTICE of Appearance by Jeremy A. Colby on behalf of All Defendants (Colby, Jeremy) (Entered: 04/21/2011)
187 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 4/26/2011 to discuss progress on discovery issues. Further Status Conference set for 5/16/2011 at 02:00 PM before Hon. Jeremiah J. McCarthy. Appearances: Pltf − Mary Pat Fleming; (Via Telephone) Zazy Ivonne Lopez, Lori Rifkin and Marlysha Myrthil. Deft : Jeremy A. Colby and Thomas F. Kirkpatrick, Jr. (DAZ) (Entered: 04/26/2011)
188 TEXT ORDER : In accordance with today's conference, defendants' mental health records production shall be completed (or formal objections served) by May 12, 2011. A further status conference is set for May 16, 2011 at 2:00 p.m. concerning amending the deposition, interrogatory and document request limitations, as well as the fact discovery cutoff. The parties shall confer and submit (jointly or individually) letter proposals by May 12, 2011. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/26/11. (DAZ) (Entered: 04/26/2011)
189 TEXT ORDER : A discovery conference concerning plaintiff's April 29, 2011 correspondence to the court is set for May 10, 2011 at 4:00 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. Defendants shall submit a letter response in advance of the conference. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 5/2/11. (DAZ) (Entered: 05/02/2011)
190 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference re discovery issues held on 5/10/2011. Appearances: Mary Pat Fleming (in person), Marlysha Myrthil, Laura Coon, Alyssa Connell Lareau (all via telephone) for Plaintiff; Thomas F. Kirkpatrick, Jr. and Brian R. Liebenow for Defendants. (DAZ) (Entered: 05/11/2011)
191 TEXT ORDER : In accordance with yesterday's proceeding, defendants shall produce the protection from harm materials identified on page 2 of defendants' May 10, 2011 letter to the court (items 1−3) and power point presentations referenced during Dr. Heidelberger's deposition, if any, by May 17, 2011. The parties shall confer regarding the methodology for producing the housing head count sheets. SO ORDERED. Issued

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05/16/2011 05/17/2011
05/25/2011 05/25/2011 06/02/2011 06/02/2011
06/06/2011 06/09/2011 06/21/2011 06/22/2011

by Hon. Jeremiah J. McCarthy on 5/11/11. (DAZ) (Entered: 05/11/2011)
192 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 5/16/2011 for discovery update. A further status conference set for 6/2/2011 at 03:30 PM before Hon. Jeremiah J. McCarthy. Appearances: Pltf − Mary Pat Fleming (in person), Zazy Lopez, Marlysha Myrthil, Alyssa Lareau (all via telephone); Defts − Jeremy A. Colby and Brian R. Liebenow. (DAZ) (Entered: 05/16/2011)
193 TEXT ORDER : In accordance with yesterday's conference, a further status conference is set for June 2, 2011 at 3:30 p.m. In advance of the June 2, 2011 conference the parties shall supplement their letter submissions concerning amendment of the deposition, interrogatory and document request limitations, as well as the remaining discovery deadlines. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call.SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 5/17/11. (DAZ) (Entered: 05/17/2011)
194 MOTION to Withdraw as Attorney by United States of America.(Fleisher, Aaron) (Entered: 05/25/2011)
195 ORDER granting 194 Motion to Withdraw as Attorney. Attorney Aaron Saul Fleisher terminated. Signed by Hon. Jeremiah J. McCarthy on 5/25/11. (DAZ) (Entered: 05/26/2011)
196 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 6/2/2011 re update on discovery issues and proposed amended CMO. Appearances: Pltf − Mary Pat Fleming (in person), Zazy Ivonne Lopez, Laura L. Coon, Marlysha Myrthil (all parties via telephone); Defts − Thomas F. Kirkpatrick, Jr. and Jeremy Colby. (DAZ) (Entered: 06/02/2011)
197 TEXT ORDER : At today's conference defendants advised that they recently learned that they inadvertently disclosed privileged material to plaintiff as part of their e−mail production. A conference concerning this issue is set for June 6, 2011 at 2:00 p.m. The parties shall submit letters addressing this issue, including the obligations of the parties in the absence of a clawback agreement, in advance of the conference. In the interim, plaintiff shall refrain from inspecting the e−mails supplied by defendants. A further conference to discuss the other discovery issues raised at today's proceeding is set for June 21, 2011 at 2:00 p.m. The parties may participate in both conferences via telephone upon advance notice to chambers. The court will initiate the calls. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/2/11. (DAZ) (Entered: 06/02/2011)
198 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 6/6/2011 to discuss issue of disclosed privileged materials. Court advised issue has been resolved. Appearances: Mary Pat Fleming (in person), Zazy Ivonne Lopez, Marlysha Myrthil (both via telephone) for Plaintiff; Jeremy A. Colby for Defendant. (DAZ) (Entered: 06/06/2011)
199 Stipulation−Selection of Mediator by Quandrell IveyAssociated Cases: 1:10−cv−00961−HKS, 1:09−cv−00849−WMS −JJM(Johnson, Philip) (Entered: 06/09/2011)
200 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 6/21/2011 re update on discovery issues. A further status conference is set for 6/30/11 at 4:00 p.m. Appearances: Pltf − Mary Pat Fleming; Zazy Ivonne Lopez, Laura L. Coon and Marlysha Myrthil (via telephone); Dfts − Thomas F. Kirkpatrick, Jr. Brian Liebenow. (DAZ) (Entered: 06/21/2011)
201 TEXT ORDER : In accordance with yesterday's proceeding, letter submissions concerning plaintiff's objections to defendants' interrogatories, amendment of the case management order deadlines and any other pending discovery disputes, shall be made by close of the business on June 29, 2011. A further conference is set for June 30, 2011 at 4:00 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/22/11. (DAZ) (Entered: 06/22/2011)

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06/30/2011 06/30/2011
07/06/2011 07/06/2011 07/06/2011 07/06/2011
07/08/2011 07/11/2011 07/22/2011 07/22/2011

202 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 6/30/2011 to discuss letter submissions and amendment of the case management order deadlines. Appearances: Mary Pat Fleming for Plaintiff; Zazy Ivonne Lopez, Marlysa Myrthil, Alyssa Connell Lareau (parties via telephone) from US Department of Justice for plaintiff; Brian R. Liebenow and Jeremy A. Colby for Defendants. (DAZ) (Entered: 06/30/2011)
203 TEXT ORDER : In accordance with today's conference, defendants shall serve and file their motion, if any, to compel interrogatory responses, which will address all issues other than plaintiff's privilege objections, by July 7, 2011; plaintiff's response shall be served and filed by July 18, 2011; defendants' reply, if any, shall be served and file by July 22, 2011; and oral argument is set for July 29, 2011 at 3:00 p.m. Plaintiff's privilege objections to defendants' interrogatories will be addressed, if necessary, in a subsequent motion. All deadlines of the Amended Case Management Order 170 are stayed pending resolution of the current discovery disputes. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/30/11. (DAZ) (Entered: 06/30/2011)
204 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on June 6, 2011, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi Macri, Telephone number 585−613−4310. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/27/2011. Redacted Transcript Deadline set for 8/8/2011. Release of Transcript Restriction set for 10/4/2011. (DLC) (Entered: 07/06/2011)
205 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on June 21, 2011, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi Macri, Telephone number 585−613−4310. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/27/2011. Redacted Transcript Deadline set for 8/8/2011. Release of Transcript Restriction set for 10/4/2011. (DLC) (Entered: 07/06/2011)
206 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on June 30, 2011, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi Macri, Telephone number 585−613−4310. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/27/2011. Redacted Transcript Deadline set for 8/8/2011. Release of Transcript Restriction set for 10/4/2011. (DLC) (Entered: 07/06/2011)
207 AMENDED TEXT ORDER : In accordance with the proceedings held on June 30, 2011, defendants shall serve and file their motion, if any, to compel interrogatory responses, which will address all issues other than plaintiff's privilege objections, by July 8, 2011; plaintiff's response shall be served and filed by July 18, 2011; defendants' reply, if any, shall be served and file by July 22, 2011; and oral argument is set for July 29, 2011 at 3:00 p.m. Plaintiff's privilege objections to defendants' interrogatories will be addressed, if necessary, in a subsequent motion. All deadlines of the Amended Case Management Order 170 are stayed pending resolution of the current discovery disputes. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 7/6/11. (DAZ) (Entered: 07/06/2011)
208 ORDER granting request for extension of briefing schedule pursuant to Dkt. 207. Signed by Hon. Jeremiah J. McCarthy on 7/8/11. (DAZ) Modified on 7/8/2011 to correct language (DAZ). (Entered: 07/08/2011)
209 CALENDAR EVENT: Oral argument previously set for July 29, 2011 at 3:00 p.m. is rescheduled for August 12, 2011 at 03:00 PM before Hon. Jeremiah J. McCarthy. (Entered: 07/11/2011)
210 First MOTION to Compel Interrogatory Responses by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston.(Liebenow, Brian) (Entered: 07/22/2011)
211 DECLARATION signed by Brian R. Liebenow re 210 First MOTION to Compel Interrogatory Responses filed by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary,

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07/22/2011 07/26/2011 07/27/2011 07/28/2011 08/03/2011 08/04/2011 08/05/2011 08/08/2011 08/10/2011 08/10/2011

Donald Livingston. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Liebenow, Brian) (Entered: 07/22/2011)
212 MEMORANDUM IN SUPPORT re 210 First MOTION to Compel Interrogatory Responses byAnthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Liebenow, Brian) (Entered: 07/22/2011)
213 TEXT ORDER : At the parties' request, the briefing schedule 208 on defendants' motion to compel interrogatory responses 210 is amended as follows: plaintiff's response to defendants' motion 208 shall be served and filed by August 15, 2011; defendants' reply, if any, shall be served and filed by August 19, 2011, and oral argument is set for August 25, 2011 at 3:00 p.m. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 7/26/11. (DAZ) (Entered: 07/26/2011)
214 Third Party MOTION to Quash Non−Party Subpoenas by League of Women Voters, Erie County Prisoner Rights Coalition, Partnership for the Public Good. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Attorney Corey Stoughton, # 3 Affidavit of Sam Magavern, # 4 Affidavit of Karima Amin, # 5 Affidavit of Therese Warden)(Stoughton, Corey) (Entered: 07/27/2011)
215 TEXT ORDER : Responses to the non−parties' motion to quash 214 shall be served and filed by August 17, 2011; the non−parties' reply, if any, shall be served and filed by August 24, 2011, and oral argument is set for September 7, 2011 at 2:00 p.m. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 7/28/11. (DAZ) (Entered: 07/28/2011)
216 DECLARATION re 214 Third Party MOTION to Quash Non−Party Subpoenas filed by Richard T. Donovan, Erie County, New York, Anthony Billittier, Robert Koch, Donald Livingston, Chris Collins, Timothy B. Howard, Barbara Leary filed by Richard T. Donovan, Erie County, New York, Anthony Billittier, Robert Koch, Donald Livingston, Chris Collins, Timothy B. Howard, Barbara Leary. (Attachments: # 1 Exhibit)(Colby, Jeremy) (Entered: 08/03/2011)
217 RESPONSE in Support re 214 Third Party MOTION to Quash Non−Party Subpoenas filed by Erie County Prisoner Rights Coalition, League of Women Voters, Partnership for the Public Good. (Stoughton, Corey) (Entered: 08/04/2011)
218 MOTION to Dismiss by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Attachments: # 1 Memorandum of Law in Support of Motion to Dismiss)(Colby, Jeremy) (Entered: 08/05/2011)
219 TEXT ORDER : The court having considered the parties' submissions [216, 217], will hold the non−parties' motion to quash 214 in abeyance pending resolution of defendants' motion to compel 210 and the issues identified in their July 22, 2011 letter to plaintiff ( 216 , Ex. A). SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 8/8/11. (DAZ) (Entered: 08/08/2011)
220 TEXT ORDER : At the parties' request, the briefing schedule 213 on defendants' motion to compel interrogatory responses 210 is amended as follows: plaintiff's response to defendants' motion 210 shall be served and filed by August 29, 2011; defendants' reply, if any, shall be served and filed by September 2, 2011, and oral argument is set for September 12, 2011 at 10:00 a.m. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 8/10/11. (DAZ) (Entered: 08/10/2011)
221 TEXT REFERRAL ORDER (DISPOSITIVE) − Hon. Jeremiah J. McCarthy, United States Magistrate Judge, is hereby designated to act in this case as follows: Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), all pre−trial matters in this case are referred to the above−named United States Magistrate Judge, including but not limited to: (1) conduct of a scheduling conference and entry of a scheduling order pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all non−dispositive motions or applications, (3) supervision of discovery, and (4) supervision of all procedural matters involving the aforementioned or involving the preparation of the case or any matter therein for consideration by the District Judge. The Magistrate Judge shall also hear and report upon dispositive motions for the consideration of the District Judge pursuant to 28

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08/11/2011
08/18/2011 08/18/2011 08/18/2011 08/26/2011
08/26/2011
11/01/2011 02/05/2012 02/06/2012 02/27/2012 02/27/2012 02/28/2012 03/02/2012 03/07/2012

U.S.C. § 636(b)(1)(B) and (C). All motions or applications shall be filed with the Clerk and made returnable before the Magistrate Judge. The parties are encouraged to consider the provisions of 28 U.S.C. § 636(c) governing consent to either partial or complete disposition of the case, including trial if necessary, by the Magistrate Judge. Consent forms are available from the office of the Magistrate Judge or the office of the Clerk of Court. IT IS SO ORDERED. Issued by William M. Skretny, Chief Judge on 8/10/2011. (MEAL) (Entered: 08/10/2011)
222 TEXT ORDER : Plaintiff's response to defendants' motion for partial dismissal 218 shall be served and filed by September 1, 2011; defendants' reply, if any, shall be served and filed by September 8, 2011, after which time the motion 218 will be taken under advisement without oral argument unless requested by one of the parties or deemed necessary by the court. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 8/11/11. (DAZ) (Entered: 08/11/2011)
223 STIPULATION of Dismissal by Anthony Billittier, Chris Collins, Richard T. Donovan, Erie County, New York, Timothy B. Howard, Robert Koch, Barbara Leary, Donald Livingston. (Colby, Jeremy) (Entered: 08/18/2011)
224 STIPULATION of Dismissal by United States of America. (Lopez, Zazy) (Entered: 08/18/2011)
225 Joint MOTION Entry of Stipulated Order of Dismissal by United States of America. (Attachments: # 1 Stipulated Order of Dismissal)(Lopez, Zazy) (Entered: 08/18/2011)
226 TEXT ORDER. IT HEREBY IS ORDERED THAT, in light of the parties' 223 224 Stipulations of Dismissal, the Clerk of Court is DIRECTED to terminate the individual Defendants in this case and amend the caption to United States of America v. Erie County, New York. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 8/25/2011. (CMD) (Entered: 08/26/2011)
227 ORDER ENTERING STIPULATED ORDER OF DISMISSAL. The 225 Joint Motion for Entry of the Stipulated Order of Dismissal is GRANTED and the [225−1] Stipulated Order of Dismissal is APPROVED, ORDERED and ENTERED. FURTHER, this Court shall retain jurisdiction over this matter until the terms are fulfilled and retains the power to enforce the Stipulated Order of Dismissal. FURTHER, the Clerk of the Court is DIRECTED to close this case. Signed by William M. Skretny, Chief Judge U.S.D.C. on 8/25/2011. (CMD) (Entered: 08/26/2011)
E−Filing Notification: Name of Sealed Document added to entry 228 Sealed Document − Final Joint Compliance Officer Report. (CMD) (CMD) (Entered: 11/01/2011)
229 NOTICE of Appearance by Michelle M. Parker on behalf of Erie County, New York (Parker, Michelle) (Entered: 02/05/2012)
230 CERTIFICATE OF SERVICE by Erie County, New York re 229 Notice of Appearance (Parker, Michelle) (Entered: 02/06/2012)
231 First MOTION to Seal Case TCCs Compliance Reports by Erie County, New York.(Parker, Michelle) (Entered: 02/27/2012)
232 DECLARATION to Seal Case by Erie County, New York.(Parker, Michelle) Modified on 2/28/2012 (DLC). (Entered: 02/27/2012)
E−Filing Notification: Incorrect event used to electronically file document. For future reference, use (Declaration) event. No action required. Re 232 First MOTION to Seal Case Declaration. (DLC) (Entered: 02/28/2012)
233 SCHEDULING NOTICE as to Defendant, Erie County's 231 Motion to Seal. Responses due by 3/9/2012. Replies is due by 3/14/2012. (CMD) (Entered: 03/02/2012)
234 RESPONSE to Motion re 231 First MOTION to Seal Case TCCs Compliance Reports, 232 First MOTION to Seal Case Declaration filed by United States of America. (Myrthil, Marlysha) (Entered: 03/07/2012)

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03/15/2012 03/18/2012 03/20/2012 03/27/2012 03/29/2012 06/21/2012
06/22/2012 06/22/2012 06/26/2012
07/03/2012 07/09/2012
07/19/2012 08/30/2013

235 TEXT ORDER. IT HEREBY IS ORDERED THAT, there being no objection thereto, Defendant's 231 Motion to Seal is GRANTED. Defendant shall file the reports at issue by March 23, 2012. Subsequent compliance reports shall also be filed under seal pursuant to this Order. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 3/14/2012. (CMD) (Entered: 03/15/2012)
236 NOTICE by Erie County, New York Amended Notice of Substitution of Counsel (Attachments: # 1 Certificate of Service)(Parker, Michelle) (Entered: 03/18/2012)
237 Second MOTION to Seal Defendant's Semiannual Compliance Reports by Erie County, New York. (Attachments: # 1 Affidavit Declaration in support of motion and Certificate of Service)(Parker, Michelle) (Entered: 03/20/2012)
239 REPLY/RESPONSE to re 237 Second MOTION to Seal Defendant's Semiannual Compliance Reports filed by United States of America. (Myrthil, Marlysha) (Entered: 03/27/2012)
240 TEXT ORDER. IT HEREBY IS ORDERED THAT, there being no objection thereto, Defendant's 237 Motion to Seal is GRANTED. Defendant shall file its semiannual compliance reports under seal pursuant to this order. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 3/28/2012. (MEAL) (Entered: 03/29/2012)
244 MOTION to Unseal Document, MOTION for Leave to Intervene and to Unseal Records by New York Civil Liberties Union (NYCLU). (Attachments: # 1 Memorandum in Support of Motion to Intervene to Unseal Records, # 2 Affidavit of Corey Stoughton, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit I, # 10 Exhibit G, # 11 Exhibit H)(Stoughton, Corey) (Entered: 06/21/2012)
E−Filing Notification: No proof of service. Action required: File proof of service re 244 MOTION to Unseal Document MOTION for Leave to Intervene and to Unseal Records. (DLC) (Entered: 06/22/2012)
245 AFFIRMATION re 244 MOTION to Unseal Document MOTION for Leave to Intervene and to Unseal Records filed by New York Civil Liberties Union (NYCLU) Proof of Service. (Stoughton, Corey) (Entered: 06/22/2012)
246 SCHEDULING NOTICE on the NYCLU's 244 Motion for leave to intervene; unsealing compliance reports that have already been filed in this case with this Court; and vacating the standing order permitting future compliance reports to be filed under seal. Both the Plaintiff and Defendant's responses are due on or before 7/9/2012. The NYCLU's reply is due 7/19/2012. The Court will then deem the motion submitted. (MEAL) (Entered: 06/26/2012)
247 RESPONSE to Motion re 244 MOTION to Unseal Document MOTION for Leave to Intervene and to Unseal Records filed by United States of America. (Myrthil, Marlysha) (Entered: 07/03/2012)
248 MEMORANDUM in Opposition re 244 MOTION to Unseal Document MOTION for Leave to Intervene and to Unseal Records Opposition to proposed intervener's motion filed by Erie County, New York. (Attachments: # 1 Affidavit First Assistant County Attorney declaration in opposition to proposed intervener's motion with certificate of service, # 2 Affidavit Director of Intensive Adult Mental Health Services declaration in opposition to proposed intervener's motion with certificate of service, # 3 Affidavit Commissioner of the Dep't of Mental Health declaration in opposition to proposed intervener's motion with certificate of service, # 4 Affidavit Correctional Health − Chief Medical Officer declaration in opposition to proposed intervener's motion with certificate of service, # 5 Affidavit Commissioner of the Dep't of Health declaration in opposition to proposed intervener's motion with certificate of service)(Parker, Michelle) (Entered: 07/09/2012)
249 REPLY to Response to Motion re 244 MOTION to Unseal Document MOTION for Leave to Intervene and to Unseal Records filed by New York Civil Liberties Union (NYCLU). (Stoughton, Corey) (Entered: 07/19/2012)
250 This Order is Vacated in Part, see USCA Mandate... DECISION AND ORDER GRANTING in part and DENYING in part NYCLU's 244 Motion to Intervene and

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09/26/2013 09/27/2013 02/05/2014 10/15/2014
10/30/2014 10/31/2014 11/07/2014 11/13/2014 11/17/2014 11/26/2014 12/16/2014
12/18/2014 01/16/2015 01/21/2015 02/12/2015

Unseal Records; DIRECTING the Clerk of the Court to terminate NYLCU from the case. Signed by William M. Skretny, Chief Judge U.S.D.C. on 8/30/2013. (MEAL) Modified on 10/15/2014 (DLC). (Entered: 08/30/2013)

251 NOTICE OF INTERLOCUTORY APPEAL as to 250 Order on Motion to Unseal Document, Order on Motion for Miscellaneous Relief,, by New York Civil Liberties Union (NYCLU). Filing fee $455, receipt number 0209−1888833. (Dunn, Christopher) Modified on 9/27/2013 (DLC). (Entered: 09/26/2013)

Remark − Pursuant to Local Rule 12.1 of the US Court of Appeals for the Second Circuit, Forms C and D must be completed within 14 days after the filing of a Notice of Appeal. Forms C and D can be obtained on the Second Circuit website at www.ca2.uscouorts.gov. (DLC) (Entered: 09/27/2013)

252 Certified and Transmitted Index to Record on Appeal to US Court of Appeals re 251 Notice of Appeal. (DLC) (Entered: 02/05/2014)

253 MANDATE of USCA as to 251 Notice of Appeal, filed by New York Civil Liberties Union (NYCLU). IT IS HEREBY ORDERED that the district courtsdecision to keep the compliance reports under seal is REVERSED and the standing order that permitted future reports to be sealed is VACATED. (Attachments: #(1) supporting Document.) (DLC) (Entered: 10/15/2014)

254 ORDER that the Mandate reverses the District Court Decision to keep the compliance reports under seal and vacates the standing order that permitted future reports to be sealed. Signed by Hon. William M. Skretny on 10/24/14. (SG) (Entered: 10/30/2014)

255 ORDER making the 253 USCA Mandate the Judgment of this Court. Signed by Hon. William M. Skretny on 10/31/14. (SG) (Entered: 10/31/2014)

256 SCHEDULING NOTICE. A Status Conference is scheduled for 11/21/2014 at 10:30 AM before William M. Skretny, Chief Judge. (MEAL) (Entered: 11/07/2014)

257 First MOTION to Adjourn Status Conference of 11/21/2014 by Erie County, New York. (Attachments: # 1 Affidavit Attorney Declaration in Support, # 2 Certificate of Service)(Parker, Michelle) (Entered: 11/13/2014)

258 TEXT ORDER. IT HEREBY IS ORDERED THAT the 257 Motion to Adjourn is GRANTED. The Status Conference scheduled for 11/21/2014 before William M. Skretny, Chief Judge will now take place at 11:30 AM. SO ORDERED. Issued by William M. Skretny, Chief Judge on 11/17/2014. (MEAL) (Entered: 11/17/2014)

259 SCHEDULING NOTICE. The Status Conference scheduled for 11/21/2014 at 9:30 AM before William M. Skretny, Chief Judge was adjourned generally due to extreme adverse weather that made it impossible to conduct. The Status Conference is now rescheduled to 12/16/2014 at 2:00 PM. (MEAL) (Entered: 11/26/2014)

260 Minute Entry for proceedings held before William M. Skretny, Chief Judge: Status Conference held on 12/16/2014. Proposed Order resolving outstanding issue re: remand provided to the Court. For the pltf. − Zazy Lopez, Marlysha Myrthil (by telephone), Mary Pat Fleming. For the deft. − Michelle Parker. For intervenor − Corey Stroughton. (Court Reporter Michelle McLaughlin.) (MEAL) (Entered: 12/17/2014)

261 ORDER DIRECTING information be redacted from all TCC Compliance Reports prior to filing with the Court, as specified. Signed by William M. Skretny, Chief Judge U.S.D.C. on 12/17/2014. (CMD) (Entered: 12/18/2014)

262 MOTION for Extension of Time to File /Submit Redacted TCC Reports to Chambers by United States of America. (Attachments: # 1 Affidavit in Support of Motion to Extend Time)(Myrthil, Marlysha) (Entered: 01/16/2015)

263 TEXT ORDER. IT HEREBY IS ORDERED THAT, Plaintiff's 262 Motion for Extension of Time to Submit Redacted TCC Reports to Chambers is GRANTED. Reports are now due by 1/22/2015. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 1/21/2015. (CMD) (Entered: 01/21/2015)

264

TEXT ORDER

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This Court has reviewed the reports submitted in accordance with December 17, 2014 order governing redaction. Defendant is directed to file the Technical Compliance Reports of Ronald M. Shansky, M.D. (November 2011−November 2014), for which no redactions are requested, within one week of the date of this order. Plaintiff and Defendant are further ordered to appear for a status conference on Tuesday, February 17, 2015 at 10:30 a.m. to discuss the proposed redactions to the Technical Compliance Reports of Jeffrey Metzner, M.D. (December 2011−November 2014). Out−of−state counsel may appear by telephone upon advance notice to chambers.

SO ORDERED.

02/17/2015
02/19/2015 02/19/2015 02/19/2015 02/19/2015 02/19/2015 02/19/2015 02/19/2015 03/31/2015
04/10/2015 04/10/2015 04/10/2015

Issued by William M. Skretny, Chief Judge U.S.D.C. on 2/10/2015. (CMD) (Entered: 02/12/2015)
265 Minute Entry for proceedings held before William M. Skretny, Chief Judge: Status Conference held on 2/17/2015. Compliance redactions discussed. Parties are given until 3/19/2015 to proffer updated compliance redactions. For the pltf. − Marlysh Myrthil (by telephone), Mary Pat Fleming. For the deft. − Michelle Parker. (Court Reporter Michelle McLaughlin.) (MEAL) (Entered: 02/18/2015)
266 STATUS REPORT Ronald Shansky, MD − November 2011 by Erie County, New York. (Parker, Michelle) (Entered: 02/19/2015)
267 STATUS REPORT Ronald Shansky, MD − June 2012 by Erie County, New York. (Parker, Michelle) (Entered: 02/19/2015)
268 STATUS REPORT Ronald Shansky, MD − November 2012 by Erie County, New York. (Parker, Michelle) (Entered: 02/19/2015)
269 STATUS REPORT Ronald Shansky, MD − June 2013 by Erie County, New York. (Parker, Michelle) (Entered: 02/19/2015)
270 STATUS REPORT Ronald Shansky, MD − November 2013 by Erie County, New York. (Parker, Michelle) (Entered: 02/19/2015)
271 STATUS REPORT Ronald Shansky, MD − May 2014 by Erie County, New York. (Parker, Michelle) (Entered: 02/19/2015)
272 STATUS REPORT Ronald Shansky, MD − November 2014 by Erie County, New York. (Parker, Michelle) (Entered: 02/19/2015)
273 TEXT ORDER. This Court has reviewed the reports submitted as directed at the February 17, 2015 status conference and approves the revised redactions. Defendant is reminded that, as done in Appendix 2 for each report, the "County of Erie Update" subheadings must also be unredacted in those appendices which were not resubmitted for review. Defendant is directed to file the redacted Technical Compliance Reports of Jeffrey Metzner, M.D., on or before April 10, 2015. On or before this same date, Defendant is further directed to file under seal unredacted copies of those reports not previously filed with this Court. SO ORDERED. Issued by William M. Skretny, Senior United States District Judge on 3/31/2015. (CMD) (Entered: 03/31/2015)
274 STATUS REPORT of TCC Dr. Metzner by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix IV, # 5 Appendix V, # 6 Appendix VI, # 7 Appendix VII, # 8 Exhibit A)(Parker, Michelle) (Entered: 04/10/2015)
275 STATUS REPORT TCC Dr. Metzner by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix IV, # 5 Appendix V, # 6 Appendix VI, # 7 Appendix VII, # 8 Appendix VIII, # 9 Exhibit A, # 10 Exhibit B, # 11 Exhibit C)(Parker, Michelle) (Entered: 04/10/2015)
276 STATUS REPORT TCC Dr. Metzner by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix IV, # 5 Appendix V, # 6 Appendix VI, # 7 Appendix VII, # 8 Appendix VIII, # 9 Appendix IX, # 10 Appendix X, # 11 Appendix XI, # 12 Exhibit A, # 13 Exhibit B, # 14 Exhibit C)(Parker, Michelle) (Entered: 04/10/2015)

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04/10/2015 04/10/2015 04/10/2015 04/10/2015 04/13/2015
04/29/2015 04/29/2015 08/06/2015
08/06/2015 08/12/2015
08/26/2015

277 STATUS REPORT TCC Dr. Metzner by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix IV, # 5 Appendix V, # 6 Appendix VI, # 7 Appendix VII, # 8 Appendix VIII, # 9 Appendix IX, # 10 Appendix X, # 11 Exhibit A, # 12 Exhibit B, # 13 Exhibit C, # 14 Exhibit D, # 15 Exhibit E)(Parker, Michelle) (Entered: 04/10/2015)

278 STATUS REPORT TCC Dr. Metzner by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix IV, # 5 Appendix V, # 6 Appendix VI, # 7 Appendix VII, # 8 Appendix VIII, # 9 Appendix IX, # 10 Appendix X, # 11 Exhibit A, # 12 Exhibit B)(Parker, Michelle) (Entered: 04/10/2015)

279 STATUS REPORT TCC Dr. Metzner by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix IV, # 5 Appendix V, # 6 Appendix VI, # 7 Appendix VII, # 8 Appendix VIII, # 9 Appendix IX, # 10 Appendix X, # 11 Exhibit A, # 12 Exhibit B)(Parker, Michelle) (Entered: 04/10/2015)

280 STATUS REPORT TCC Dr. Metzner by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix VII, # 5 Appendix VIII, # 6 Appendix IX, # 7 Appendix X, # 8 Exhibit A, # 9 Exhibit B)(Parker, Michelle) (Entered: 04/10/2015)

281 Sealed Document pursuant to 273 Order. (Attachments: #(1) 12/2011 Appendix IV, #(2) 6/2012 Appendix A, #(3) 6/2012 Appendix II, #(4) 6/2012 Appendix III, #(5) 6/2012 Appendix IV, #(6) 6/2013 Appendix II, #(7) 6/2013 Appendix IV, #(8) 6/2013 Attachment A, #(9) 5/2014 Appendix II, #(10) 5/2014 Appendix IV, #(11) 5/2014 Attachment A, #(12) 11/2012 Appendix II, #(13) 11/2012 Appendix IV, #(14) 11/2012 Attachment C, #(15) 11/2013 Appendix II, #(16) 11/2013 Appendix IV, #(17) 11/2013 Attachment A, #(18) 11/2014 Appendix A, #(19) 11/2014 Appendix II, #(20) 11/2014 Attachment B). (DLC) (Entered: 04/13/2015)

282 Letter from Erie County, dated April 13, 2015, to Hon. William M. Skretny. (CMD) (Entered: 04/29/2015)

283 TEXT ORDER. The additional redactions made to Docket No. 275 Exhibit 9, referenced in the County's April 13, 2015 letter, are approved. Counsel is reminded to request approval of future redactions prior to filing. SO ORDERED. Issued by William M. Skretny, Senior United States District Judge on 4/27/2015. (CMD) (Entered: 04/29/2015)

284 TEXT ORDER. This Court has reviewed the June 2015 TCC report of Jeffrey Metzner, M.D., and approves the parties' requested redactions. Defendant is directed to file the redacted version of this report on the docket within one week of the date of this order. The unredacted version submitted to chambers will be filed under seal. SO ORDERED. Issued by William M. Skretny, United States District Judge on 8/5/2015. (CLERK TO FOLLOW UP). (CMD) (Entered: 08/06/2015)

285 Sealed Document. (Attachments: # 1 ) (CMD) (Entered: 08/06/2015)

286 STATUS REPORT TCC Dr Metzner June 2015 by Erie County, New York. (Attachments: # 1 Appendix Appendix I, # 2 Appendix Appendix IA, # 3 Appendix Appendix II, # 4 Appendix Appendix III, # 5 Appendix Appendix VII, # 6 Appendix Appendix VIII, # 7 Appendix Appendix IX, # 8 Appendix Appendix X, # 9 Appendix Attachment A, # 10 Appendix Attachment B, # 11 Appendix Attachment C)(Parker, Michelle) (Entered: 08/12/2015)

287

TEXT ORDER

This Court has reviewed the June 2015 medical monitoring report of Ronald Shansky, M.D., and notes that no redactions are requested. Defendant is directed to file this report on the docket on or before September 8, 2015.

SO ORDERED.

09/08/2015

Issued by William M. Skretny, United States District Judge on 8/25/2015. (MEAL) (Entered: 08/26/2015)
288 STATUS REPORT Ronald Shansky, MD − June 2015 by Erie County, New York. (Parker, Michelle) (Entered: 09/08/2015)

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09/09/2015
09/09/2015 12/11/2015

E−Filing Notification: Missing case caption and case number. Action required: re−file document in proper format and/or cover sheet and with new proof of service re 288 STATUS REPORT Ronald Shansky, MD − June 2015 by Erie County, New York. (Parker, Michelle) (DLC) (Entered: 09/09/2015)

289 STATUS REPORT Ronald Shansky, MD − June 2015 by Erie County, New York. (Parker, Michelle) (Entered: 09/09/2015)

290

TEXT ORDER

Presently before this Court for review are the compliance reports resulting from the October 2015 site visits of Ronald Shansky, M.D., and Jeffrey Metzner, M.D. No redactions have been requested with respect to Dr. Shansky's report. This Court has reviewed Dr. Metzner's report and approves the parties' requested redactions to Appendix II and Attachment C. Defendant is directed to file Dr. Shanksy's report and the redacted version of Dr. Metzner's report on the docket within one week of the date of this order. The unredacted version of Dr. Metzner's report submitted to chambers will be filed under seal.

Issued by William M. Skretny, United States District Judge on 12/11/2015. (MEAL)

12/14/2015 12/14/2015 12/18/2015
06/17/2016

− CLERK TO FOLLOW UP − (Entered: 12/11/2015)

291 REPORT OF TCC Ronald Shanski, M.D. by Erie County, New York. (DLC) (Entered: 12/14/2015)

292 Sealed Document (Unredacted version of Dr. Metzner's Report.) (DLC) (Entered: 12/14/2015)

293 STATUS REPORT TCC Jeffrey Metzner, M.D. November 2015 by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix IA, # 3 Appendix II, # 4 Appendix III, # 5 Appendix VII, # 6 Appendix VIII, # 7 Appendix IX, # 8 Appendix X, # 9 Exhibit Attachment A, # 10 Exhibit Attachment B, # 11 Exhibit Attachment C)(Parker, Michelle) (Entered: 12/18/2015)

294

TEXT ORDER

Presently before this Court for review are the compliance reports resulting from the April 2016 site visits by Ronald Shansky, M.D., and Jeffrey Metzner, M.D. No redactions have been requested with respect to Dr. Shansky's report. This Court has reviewed Dr. Metzner's report and approves the parties' requested redactions to Appendix II and Attachments A, B1, and B. Defendant is directed to file Dr. Shanksy's report and the redacted version of Dr. Metzner's report on the docket within one week of the date of this order. The unredacted version of Dr. Metzner's report submitted to chambers will be filed under seal.

SO ORDERED.

Issued by William M. Skretny, United States District Judge on 6/17/2016. (MEAL)

06/20/2016 06/20/2016 06/20/2016 06/24/2016 06/24/2016

− CLERK TO FOLLOW UP − (Entered: 06/17/2016)
295 Sealed Document − Unredacted Version of Dr. Metzner's Report 1 of 3. (KLH) (Entered: 06/20/2016)
296 Sealed Document − Unredacted Version of Dr. Metzner's Report 2 of 3. (KLH) (Entered: 06/20/2016)
297 Sealed Document − Unredacted Version of Dr. Metzner's Report 3 of 3. (KLH) (Entered: 06/20/2016)
298 STATUS REPORT of Ronald Shansky MD by Erie County, New York. (Parker, Michelle) (Entered: 06/24/2016)
299 STATUS REPORT Jeffrey Metzner, MD by Erie County, New York. (Attachments: # 1 Appendix App I, # 2 Appendix App IA, # 3 Appendix App II, # 4 Appendix App III, # 5 Appendix App VII, # 6 Appendix App VIII, # 7 Appendix App IX, # 8 Appendix App X, # 9 Exhibit Attmt A, # 10 Exhibit Attmt B, # 11 Exhibit Attmt B1, # 12

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Exhibit Attmt C)(Parker, Michelle) (Entered: 06/24/2016)

01/05/2017 300

TEXT ORDER

Presently before this Court for review are the compliance reports resulting from the October 2016 site visits by Ronald Shansky, M.D., and Jeffrey Metzner, M.D. No redactions have been requested with respect to Dr. Shansky's report. This Court has reviewed Dr. Metzner's report and approves the parties' requested redactions to Appendix II and Attachments B and C. Defendant is directed to file Dr. Shanksy's report and the redacted version of Dr. Metzner's report on the docket within one week of the date of this order. The unredacted version of Dr. Metzner's report submitted to chambers will be filed under seal.

SO ORDERED.

Issued by William M. Skretny, United States District Judge on 1/4/2017. (MEAL)

01/05/2017 01/11/2017 01/11/2017
01/12/2017 08/09/2017

− CLERK TO FOLLOW UP − (Entered: 01/05/2017)

301 Sealed Document − Unredacted version of Dr. Metzner's Report. (KLH) (Entered: 01/06/2017)

302 STATUS REPORT Ronald Shansky, MD − October 2016 by Erie County, New York. (Parker, Michelle) (Entered: 01/11/2017)

303 STATUS REPORT Jeffrey Metzner, M.D. − November 2016 by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix VII, # 5 Appendix VIII, # 6 Appendix IX, # 7 Appendix X, # 8 Supplement Attachment A, # 9 Supplement Attachment B, # 10 Supplement Attachment C)(Parker, Michelle) (Entered: 01/11/2017)

304 STATUS REPORT Letter to the Clerk by Erie County, New York. (Attachments: # 1 Supplement Attachment C)(Parker, Michelle) (Entered: 01/12/2017)

305

TEXT ORDER

Presently before this Court for review are the compliance reports resulting from the May 2017 site visits by Ronald Shansky, M.D., and Jeffrey Metzner, M.D. This Court has reviewed the reports and approves the parties' requested redactions to Dr. Shansky's report and to Appendix II of Dr. Metzner's report. Defendant is directed to file redacted versions of the two reports on the docket within one week of the entry date of this order. The unredacted versions of Dr. Shansky's report and Appendix II of Dr. Metzner's report that were submitted to chambers will be filed under seal.

SO ORDERED.

Issued by William M. Skretny, United States Ditrict Judge on 8/9/2017. (MEAL)

08/10/2017 08/10/2017 08/11/2017
08/11/2017 11/13/2017

− CLERK TO FOLLOW UP − (Entered: 08/09/2017)
306 Sealed Document − Dr. Shansky's Report. (KLH) (Entered: 08/10/2017)
307 Sealed Document − Appendix II of Dr. Metzner's Report. (KLH) (Entered: 08/10/2017)
308 STATUS REPORT TCC Jeffrey Metzner MD May 2017 by Erie County, New York. (Attachments: # 1 Appendix Appendix I, # 2 Appendix Appendix II, # 3 Appendix Appendix III, # 4 Appendix Appendix VII, # 5 Appendix Appendix VIII, # 6 Appendix Appendix IX, # 7 Appendix Appendix X, # 8 Exhibit Attachment A, # 9 Exhibit Attachment B, # 10 Exhibit Attachment C)(Parker, Michelle) (Entered: 08/11/2017)
309 STATUS REPORT TCC Ronald Shansky MD − May 2017 by Erie County, New York. (Parker, Michelle) (Entered: 08/11/2017)
310 STATUS REPORT re: no proposed redactions by Erie County, New York. (Parker, Michelle) (Entered: 11/13/2017)

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11/17/2017
11/17/2017 06/21/2018

311 STATUS REPORT TCC Jeffrey Metzner MD re September 2017 by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix IA, # 3 Appendix II, # 4 Appendix III, # 5 Appendix VII, # 6 Appendix VIII, # 7 Appendix IX, # 8 Appendix X)(Parker, Michelle) (Entered: 11/17/2017)
312 STATUS REPORT TCC Ronald Shansky MD − September 2017 by Erie County, New York. (Parker, Michelle) (Entered: 11/17/2017)
313 TEXT ORDER. Presently before this Court for review are the compliance reports resulting from the April 2018 site visits by Ronald Shansky, M.D., and Jeffrey Metzner, M.D. This Court has reviewed the reports and approves the parties' requested redactions to Dr. Shansky's report. There are no proposed redactions to Dr. Metzner's report. Defendant is directed to file Dr. Metzner's report and a redacted version of Dr. Shansky's report on the docket within one week of the entry date of this order. The unredacted version of Dr. Shansky's report that was submitted to chambers will be filed under seal. Issued by United States District Judge William M. Skretny on 6/21/2018. (JCM)

06/22/2018 06/27/2018 06/27/2018
11/26/2018
11/29/2018 11/29/2018

−CLERK TO FOLLOW UP− (Entered: 06/21/2018)
314 Sealed Document − Dr. Shansky's Report. (KLH) (Entered: 06/22/2018)
315 STATUS REPORT TCC Ronald Shansky, M.D. − May 2018 by Erie County, New York. (Parker, Michelle) (Entered: 06/27/2018)
316 STATUS REPORT TCC Jeffrey Metzner, M.D. May 2018 by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix VII, # 5 Appendix VIII, # 6 Appendix IX, # 7 Appendix X)(Parker, Michelle) (Entered: 06/27/2018)
317 Letter filed by Erie County, New York as to Richard T. Donovan, Erie County, New York, Anthony Billittier, Robert Koch, Donald Livingston, Chris Collins, Timothy B. Howard, Barbara Leary no redactions required for TCC reports. (Parker, Michelle) (Entered: 11/26/2018)
318 STATUS REPORT Ronald Shansky, MD − October 2018 by Erie County, New York. (Parker, Michelle) (Entered: 11/29/2018)
319 STATUS REPORT Jeffrey Metzner, M.D. − October 2018 by Erie County, New York. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix VII, # 5 Appendix VIII, # 6 Appendix IX, # 7 Appendix X)(Parker, Michelle) (Entered: 11/29/2018)