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Court Doubts BOP Medical Care Standards – Update for November 2, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘WE ARE STILL HUMAN’: CARSWELL MEDICAL CARE ON TRIAL IN SOUTH FLORIDA HEARING

healthbareminimum220603A woman whose 18-month federal sentence last April came with a promise by a BOP medical official that he’d personally see that she would receive the care she needed to treat her life-threatening seizure condition was back in court after only eight weeks in FMC Carswell, due to her attorney’s concern that “the BOP has proven unable to manage or prevent these life-threatening episodes.”

Suzanne Kaye suffers from severe, stress-induced seizures. She went into cardiac arrest on the floor of the courtroom last year when she was convicted of threatening to shoot FBI agents in the “f****** ass. When she was sentenced, her lawyer warned that sending her to prison could kill her.

At sentencing, the Court found that there was “no doubt” that Suzanne “does suffer from a serious health condition, in fact perhaps a number of health conditions,” that she was “medically frail,” and that “she will require much medical care.” But despite her undisputed seizure disorder and other medical ailments, the Court relied on testimony from the FMC Carswell Medical Director that the BOP could “provide Ms. Kaye with whatever medical care she needs.”

Suzanne self-surrendered in mid-July. Only two months later, her attorney told the court that Suzanne “has required emergency outside hospitalization on at least two separate occasions. Specifically, counsel has been advised that Mrs. Kaye has suffered ongoing, repeated seizures—including two major episodes—with the latest episode involving cardiac arrest. (It has also resulted in blood clots that are now not being monitored)…” The BOP’s “repeated failure is contrary to the picture painted by the government at sentencing. Counsel has also been advised fellow inmates have been forced to attempt to [provide] life-saving care during these seizures because prison officials failed to do so.”

BOPMedical221208BOP medical official Mark Holbrook told the judge in April that some inmates have medical needs beyond what the Bureau of Prisons can treat. Suzanne, he said, was not one of them. But five months later, her heart and lungs briefly stopped working on the floor of a friend’s cell. Inmates screamed at the guards to call for help. “Granny’s eyes were wide open, but you could see that the light was no longer there,” wrote Katherine Moore, one of two incarcerated women who performed CPR on Kaye until medics arrived. “She was gone.”

“That was my mistake,” Dr. Holbrook admitted to the judge last month.

The Palm Beach Post reported, “Letters from half a dozen inmates and the testimony of Carswell’s own medical director depict a standard of care unlike the one Holbrook promised. One where Kaye must depend on her fellow inmates to keep her heart beating, and doubts over the legitimacy of her seizures dampen what care she does receive.”

When vouching for Carswell, the doctor said Suzanne would have access to a neurologist to treat her seizures and a psychologist to treat the anxiety that triggers them. He also promised a combination of anti-seizure medications that would take the place of her medical marijuana. “He made several promises and several assurances. It appears none of which occurred,” Suzanne’s attorney told the judge last month. “I’m not saying he lied — maybe he meant to and he forgot — but it is inexcusable in my opinion.”

Dr. Holbrook told the judge he left a voicemail with someone he believed was Carswell’s clinical director and never heard back. Maitee Serrano-Mercado, Carswell’s clinical director, testified that she was never contacted by Holbrook, and prison staff only belatedly learned that Kaye had a history of seizures.

Still, Dr. Holbrook said he was thankful Suzanne was at Carswell because it is “the best location” for her to be provided care. “Second best” undoubtedly would be an abattoir.

DrNoBOPHealth230925The Post noted that Carswell, once dubbed by the Fort Worth Weekly as a “hospital of horrors,” is “the only federal medical facility for incarcerated women in the country. It lost its accreditation during the pandemic and has not gotten it back. Indeed, the BOP seems to have no interest in doing so.

Carswell clinical director Serrano-Mercado argued at the hearing that Suzanne’s seizures might not be real. Serrano-Mercado admitted that the staff treating Suzanne are the same who treated a woman named Gwen Rider, a Carswell inmate who committed suicide in August. Like Suzanne, Rider was sent to Carswell because she needed medical treatment for epileptic seizures. Staff accused her of faking her seizures, too.

Suzanne was hospitalized again two weeks ago. Her mother, Brenda Kaye, told The Palm Beach Post that BOP medical personnel accidentally fractured her sternum while checking to see if she exhibited a pain response.

In an email to The Post, Suzanne called the treatment of herself and other women at the prison “nothing short of torture.” “People come in here walking and leave in wheelchairs. People die here,” she wrote. “I don’t want to be one of them.”

medical told you I was sick221017After publishing this report in my newsletter last weekend, I received an email from a prisoner at Carswell. She had been present when Suzanne and two other prisoners suffered seizures:

I had run to get an officer for the first one (which was Suzanne) and she wouldn’t call it on the radio, a medical emergency so I had to run to inside [the Recreation area] and get the officers there. They came running, Once they made it over there another girl went down in a bad grand mal seizure, then another one went down, also a really bad one that seemed like it was never-ending. The rec officers did their best, then other officers showed up but medical never showed up. The officers on the scene had to put the ladies on the back of their easy-go car and drive them up to the hospital area one at a time.

The time they had broken Suzanne’s collar bone I believe [they were] trying to get her heart to beat again. Just thought I would share an experience I had firsthand to put more information out there! Medical here does not care about us. They are desensitized and should all for the most part be replaced. We are still human and do not deserve to be treated like this. 

Palm Beach Post, ‘Inexcusable’: Attorney blasts federal prison officials over Boca woman’s medical care (October 27, 2023)

Motion for Hearing (ECF 200), United States v. Kaye, Case No 9:21-cr-80039 (SD Fla., September 12, 2023)

– Thomas L. Root

The Law’s Still Majestic… – Update for July 26, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

“THE LAW, IN ITS MAJESTIC EQUALITY…

… forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread,” so goes a famous 19th quotation. If you recall it, you have either read The Red Lily (which is unlikely) or remember that I’ve used the quotation before.

quackdoc210707It’s just that the observation is so apt, especially where prisoners try to bring Federal Tort Claim Act cases alleging medical malpractice by the quackery that is BOP healthcare.

In an effort to cut down on worthless medical malpractice (“med-mal”) claims, most state procedural rules require that such a claim be accompanied by an expert’s affidavit attesting that the plaintiff’s cause of action has some merit. If you’re the average man or woman on the street, and you watch mid-day game shows, you have already lined up a lawyer who will take your case for a 40% cut of the winnings. So it’s no problem: your lawyer has a compliant expert who will provide an affidavit swearing that some imbecile medical provider cut off your right leg and attached it to your ear.

But if you happen to be in prison, you’ve got a couple of hurdles to jump. First, finding a personal injury lawyer who wants to devote her time and money (yeah, PI lawyers front the expenses of the trial, which may hit six figures in some instances) is tough. As hard as it is to believe, juries do not have a lot of sympathy for federal prisoners who say they were hurt by lousy doctoring. Second, the biggest components of damages are lost earnings and medical costs. Inmates have no medical costs (except for the occasional $2.00 health service co-pay) or any lost earnings.

Because damages are what fire up a jury to award big bucks, the personal injury bar does not see inmate cases as being worth much.

pay210708‘No lawyer’ means that inmates have to pony up $5,000 right from jump to hire an expert, in order to get the affidavit they need to avoid having their FTCA claims thrown out.

Seems fair, right? After all, the requirement applies to all med-mal plaintiffs, rich and poor alike. The guy left in a wheelchair by a negligent truck driver, being represented by some megafirm needs an expert. So does an inmate making 25¢ an hour, Equality realized!

A couple of years ago, the 6th and 7th Circuits ruled that the Federal Rules do not require such affidavits, and thus are inconsistent with state rules. The Supremacy Clause of the Constitution holds that federal rules displace inconsistent state rules, and the FTCA expressly holds that federal rules govern its application.

notapply210726Last week, the 4th Circuit followed the 6th and 7th, holding that a West Virginia law requiring medical certifications before filing med-mal suits does not apply to FTCA actions. “About half of all states similarly demand that medical malpractice plaintiffs secure some sort of early support from a qualifying expert,” the Circuit said. “But there is now a growing consensus that certificate requirements like West Virginia’s do not govern actions in federal court, because they conflict with and are thus supplanted by the Federal Rules of Civil Procedure… We agree, and hold that failure to comply with West Virginia’s MPLA is not grounds for dismissal of Pledger’s federal-court FTCA action.”

Pledger v. Lynch, Case No 18-2213, 2021 U.S. App. LEXIS 21587 (4th Cir, July 21, 2021)

– Thomas L. Root

You Can’t Get Whatever You Need at Aliceville’s Health Services – Update for July 7, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

REASON MAGAZINE MAULS FCI ALICEVILLE HEALTHCARE

Reason.com, a libertarian magazine and website, published a lengthy investigative piece last month shredding the quality of healthcare the Federal Bureau of Prisons provides female inmates at FCI Aliceville.

prisonhealth200313The article is detailed and deeply researched. At one point, it cites the compassionate release of inmate Angela Beck last year. U.S. District Judge Catherine Eagles (Middle District of North Carolina) found that the BOP made Angela wait two months for imaging after she first found lumps in her left breast. Then she had to wait eight months for a biopsy, which confirmed the cancer, and two more months for surgery. By that time, the cancer had spread to her lymph nodes, requiring a radical mastectomy. Five more months passed before Beck’s first appointment with an oncologist, who determined that it was too late to begin chemotherapy at that point.

Judge Eagles wrote that the neglect Angela suffered “likely reached the level of a constitutional violation,” and that if she remained in BOP custody, she would continue to face “a substantial likelihood of substandard medical care for her life-threatening disease.”

The government, of course, opposed release, arguing that Angela’s “medical issues,” that is, the appalling negligence, “d[id] not qualify as a terminal medical condition or debilitated medical condition.” Judge Eagles thought otherwise, and released Angela so she could get some decent care at home.

Reason noted that although its article focused on Aliceville, “this story could have been written about any number of prisons or jails. Medical neglect of incarcerated people is a problem across the country on federal, state, and local levels. It’s a national disgrace—the kind people prefer to ignore. Prison officials downplay or hide the scope of it, there is a high bar for inmates trying to bring Eighth Amendment lawsuits challenging prison conditions, and the public by and large pays little attention to what happens behind prison walls.”

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The magazine received a message about an inmate being taken to Health Services with chest pains. “My friend told me that that lady today in medical kept saying, ‘I am going to die, I am going to die’,” the message continued. “And she did … but did she have to?”

The article said, “That’s a question Reason has been asking for the last year, and a question the BOP appears to have no interest in answering.”

Reason, These Women Received a Death Sentence for Being Sick In Prison (June 30, 2020)

United States v.  Beck, 425 F. Supp. 3d 573 (MDNC, 2019)

– Thomas L. Root

Preparing for the Prison Pandemic – Update for March 13, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CORONAVIRUS AND THE BOP

As of last night, the coronavirus (COVID-19) has sickened over 135,000 people worldwide. More than 4,900 people have died. Confirmed cases in the US exceed 1,700, with 31 deaths. 

corona200313Yesterday, Rep. Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, wrote to Attorney General William Barr, demanding answers to 14 questions about BOP preparedness for the inevitable spread of COVID-19 to federal facilities. Nadler said he was “especially concerned because the incarcerated and justice-involved populations contain a number of groups that may be particularly vulnerable to COVID-19. In particular, health conditions that make respiratory diseases more dangerous are far more common in the incarcerated population than in the general U.S. population.”

The New York Daily News reported on Monday that the Federal Defenders – an organization of public defense attorneys who represent indigent defendants (the vast majority of criminal defendants in the federal system) – presented “a five-step plan they want the federal Bureau of Prisons to implement to handle coronavirus, including a comprehensive testing protocol and requesting that no new inmates be housed at the jails without being tested for the virus first.”  The Defenders were focused on the troubled Metropolitan Correctional Center in Manhattan and the Metropolitan Detention Center in Brooklyn, which together hold about 2,300 inmates and pretrial detainees. The defense attorneys say there is a “lack of information and planning” relating to the disease in the facilities.

WXIN-TV, Indianapolis, reported yesterday that COVID-19 has spread to a central Indiana county jail correctional officer. Last week, ABC News reported that “Coronavirus suddenly exploded in China’s prisons last week, with reports of more than 500 cases spreading across five facilities in three provinces. Earlier this week in Iran, 54,000 inmates were temporarily released back into the country amid virus fears.” The Marshall Project has reported that it is only a matter of time before the virus reaches BOP facilities.

To minimize spread, the Centers for Disease Control and Prevention suggests avoiding close contact with people who are sick, covering your mouth with a tissue when you cough or sneeze, disinfecting frequently-used surfaces and washing your hands or using alcohol-based hand sanitizer. But these recommendations run up against the reality of prison life. Access to toilet paper or tissues is limited, there is no alcohol-based sanitizer, and you live on top of hundreds of people, meaning a virus like COVID-19 will spread like a prairie fire.

prisonhealth200313“COVID-19 will remind us of a central hypocrisy in our approach to health behind bars,” The Hill reported last week. “We’ve built the world’s largest collection of jails and prisons, and kept the health services in these places remarkably separate from the rest of our national health systems. The CDC, state departments of health, the Joint Commission and other bodies that promote evidence-based care in our hospitals, ambulatory care clinics and nursing homes are largely absent in these settings. As a result, management of this pandemic will be harder and less effective for incarcerated people, their families and staff in these institutions.”

“Time is of the essence to avert a public health catastrophe in the United States’ prisons and jails,” Nazgol Ghandnoosh, senior research analyst for The Sentencing Project told Newsweek on Tuesday. “Protecting incarcerated people during a contagious health
crisis by expediting releases would reduce the burden on prison staff of caring for the very ill and reduce demand for limited hospital resources which are shared with the broader public.”

Newsweek, Coronavirus Could Cause ‘Public Health Catastrophe’ in Overcrowded Jails Warns Prison Reform Group The Sentencing Project (Mar. 11)

New York Daily News, NYC’s federal jails not prepared for coronavirus, says defense attorney group (Mar. 9)

The Marshall Project: When Purell is Contraband, How Do You Contain It? (Mar. 6)

The Hill, 4 ways to protect our jails and prisons from coronavirus (Feb. 29)

– Thomas L. Root

BOP’s Horrible, No Good, Very Bad Week – Update for November 29, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP WALKS INTO BAD PRESS BUZZSAW

baddayA181130BOP Acting Director Hugh J. Hurwitz probably felt more like the dinner than the diner by the time Thanksgiving rolled around a week ago, after the beating his agency took in the media in the preceding days.

First, the New York Times published a long story detailing the sexual harassment suffered by female BOP staff. “For women who work in federal prisons, where they are vastly outnumbered by male colleagues and male inmates,” the Times wrote, “concealing every trace of their femininity is both necessary and, ultimately, futile… Some inmates… stare… grope, threaten and expose themselves. But what is worse, according to testimony, court documents, and interviews with female prison workers, male colleagues can and do encourage such behavior, undermining the authority of female officers and jeopardizing their safety. Other male employees join in the harassment themselves.”

The Times found that women who reported harassment “face retaliation, professional sabotage and even termination,” while the careers of many male BOP harassers and those who protect them flourish. The Times named names.

But The Gray Lady wasn’t done with the BOP. Two days later, the paper ran a detailed piece questioning how Whitey Bulger ended up at Hazleton general population, where he was promptly murdered. The Times reported, “Several prison workers questioned why so many people at Coleman and in the Texas office would have approved a transfer of Mr. Bulger to Hazelton, a facility that houses some inmates tied to organized crime and that has a reputation for being dangerous for snitches. The workers also questioned why staff members at Hazelton would have approved placing Mr. Bulger in the prison’s general population. Mr. Bulger was the third inmate to be killed at Hazelton this year.”

The paper quoted one unnamed worker who said, “That was a monumental failure and a death sentence for Whitey.”

The Times said the BOP issued a statement saying that Bulger’s transfer to Hazelton was made in accordance with its policy, including a review of whether inmates there were known to be a threat to him.

mental181130Meanwhile, The Marshall Project suggested that the BOP’s 2014 policy that promised better care and oversight for inmates with mental-health issues was a fraud. “Data obtained through a Freedom of Information Act request shows that instead of expanding treatment, the bureau has lowered the number of inmates designated for higher care levels by more than 35 percent.” TMP says prison staff are determining that prisoners—some with long histories of psychiatric problems—don’t require any routine care at all. As of last February, the BOP classified just 3% of inmates as having a mental illness serious enough to require regular treatment. By comparison, more than 30% of California state prisoners receive care for a “serious mental disorder.” In New York, its 21%, and In Texas, it’s about 20%.

TMP says that when BOP changed its rules, “officials did not add the resources needed to implement them, creating an incentive for employees to downgrade inmates to lower care levels.”

The New York Times, Hazing, Humiliation, Terror: Working While Female in Federal Prison (Nov. 17, 2018)

The New York Times, The Whitey Bulger Murder Mystery: Two Assailants and a Prison Full of Suspects (Nov. 19, 2018)

The Marshall Project, Treatment Denied: The Mental Health Crisis in Federal Prisons (Nov. 20, 2018)

– Thomas L. Root

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7th Circuit Trusts BOP Healthcare… and 190,000 prisoners laugh – Update for March 27, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
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L-O-L

Jeff Rothbard’s case made us laugh, and not in a good way.

Jeff has an unfortunate knack for fraud. He’s not likely to change his ways, given that he’s “an older man with serious health problems.”

costlydrug170327His district court sentenced him to 24 months, even though the Presentence Report suggested a home confinement and halfway house, due to Jeff’s particularly virulent form of leukemia. Jeff has stayed alive this long because he takes nilotinib, a one-of-a-kind drug that holds the cancer in check. He needs the drug every day: if the nilotinib is discontinued even for briefly, the leukemia will come roaring back.

There’s a catch. The drug costs about $125,000 a year.

On appeal, Jeff complained that incarceration could well kill him, because the BOP was unlikely to give him such an expensive drug. The BOP maintains a “formulary” (a listing) of drugs that its physicians are permitted to prescribe. Nilotinib is not on the list.

But the BOP told the district court that if one of its doctors believes that a patient needs a non-formulary drug, the doctor may prescribe it by following certain procedures. The BOP said a new inmate could continue on non-formulary drugs for four days after arrival, during which time he would be assessed. The BOP assured the court it could approve non-formulary drugs in a matter of hours, if need be. In fact, the BOP said it had received 10 requests by its doctors for nilotinib in the last six years, and all had been approved.

Last week, the 7th Circuit upheld the sentence, concluding it was reasonable. While the Circuit admitted that the BOP had “an incentive to be sparing with its orders for particularly expensive non-formulary drugs, such as nilotinib, there is no evidence… that it has done so… The record shows that BOP has ordered nilotinib itself on ten other occasions, evidently in recognition of the fact that it might be essential (as it apparently is for Rothbard).”

Of course, what the Circuit overlooked was that nilotinib was approved the ten times a BOP doctor actually requested it. That stat overlooks how many time a prisoner needed the drug but the doctor at the institution refused to make the request to the Central Office.

BOPdocs170327In this case, the 7th admitted the decision was a close one because the “BOP is not willing or able to pre-commit to nilotinib for Rothbard, before he has gone through the intake examination at the prison medical center. Although it might be sensible in cases such as this one for BOP to have some way of examining people before they report, that is not its practice and we are not persuaded that the lack of a pre-report examination is independently actionable. In addition, we cannot find fault with BOP’s reservation of the right to conduct its own medical examination.”

What made us laugh was the Court’s warning to the BOP. It said that if Jeff “shows up at a BOP facility and discovers that the responsible people are dragging their feet in a way that deprives him for any significant time of his nilotinib, or if the BOP evaluator (contrary to all of the evidence we have seen) takes the position that a medically suitable alternative from the formulary exists, Rothbard is free to use the BOP’s grievance procedures to complain about any such problem.”

Now there’s a threat to make the BOP director quake in his boots. If Jeff is denied the drug he cannot live without, he can file his BP-8. BP-9, BP-10 and BP-11. Then after the 230+ days it takes to complete the largely futile BOP grievance procedures, if Jeff has still not gotten the drug, he can file a habeas corpus action (provided he’s still alive).

remedy170327In a sharp dissent, Judge Richard Posner showed no confidence in the BOP: “Essentially the prosecution, the district court, and now my colleagues, ask that the Bureau of Prisons be trusted to give the defendant, in a federal prison, the medical treatment that he needs for his ailments. Yet it is apparent from the extensive literature on the medical staff and procedures of the Bureau of Prisons (a literature ignored by my colleagues) that the Bureau cannot be trusted to provide adequate care to the defendant.”

This decision ought to read by anyone who has a medical issue with the BOP.

United States v. Rothbard, Case No. 16-3996 (7th Cir., March 17, 2017)

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THE LESS SAID, THE BETTER

Ryrica Custis, a Virginia prisoner, had lost his toes in a pre-prison accident. The prison assigned him to an upper bunk anyway, and of course he fell off the ladder trying to climb in. He filed an inmate complaint in the grievance system, but the prison grievance manual listed the wrong address to which to send it. By the time Ry remailed it to the right place, the prison said he was too late.

Ry sued in federal court for injuries he had suffered. Under the Prison Litigation Reform Act, inmates may file federal suits about prison conditions only if they first exhaust administrative remedies in the prison grievance system. In Jones v. Bock, a 2007 case, the Supreme Court held that failure to exhaust remedies is no more than an affirmative defense. In other words, if the prison fails to raise it in its answer, the failure to exhaust is waived and the suit may proceed.

Exhaustion170327After Jones, the 4th Circuit held in Moore v. Bennette that if the inmate did not plead in the complaint that he had exhausted remedies, the court could dismiss it “so long as the inmate is first given an opportunity to address the issue.” Some district courts, like the one Ry had sued in, started acting on their own to dismiss inmate suits where the courts deemed that the inmate had not exhausted remedies.

Last week, the 4th Circuit put a stop to that practice. It explained that in Moore, the district court did not raise exhaustion sua sponte (on its own motion). Instead, the prison administration raised it as an affirmative defense. The Circuit held that Jones means that (1) an inmate does not have to say anything about exhaustion in his complaint, and (2) unless the inmate actually admits in his complaint that he did not exhaust remedies, district courts may not dismiss the case on its own. To the extent that 4th Circuit decisions have said otherwise, they were overruled.

Custis v. Davis, Case No. 15-7533 (4th Cir., Mar. 23, 2017)

– Thomas L. Root

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