INDIANA PROTECTION AND ADVOCACY SERVICES COMMISSION v. COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION
ENTRY FOLLOWING BENCH TRIAL - The Plaintiffs have prevailed as to their Eighth Amendment claim. Appropriate further proceedings will be conducted as to the relief to which the Plaintiffs are entitled and as to any ancillary matters. For now, no partial final judgment shall issue at this time as to the claim resolved in this Entry. Signed by Judge Tanya Walton Pratt on 12/31/2012.(TRG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANA PROTECTION AND ADVOCACY
SERVICES COMMISSION, on behalf of its
clients and constituents,
JOSHUA HARRISON, GREGGORY SIMS,
and JAMES PANOZZO, on their own behalf and
on behalf of a class of similarly situated persons,
DEPARTMENT OF CORRECTION,
) Case No. 1:08-cv-01317-TWP-MJD
ENTRY FOLLOWING BENCH TRIAL
A bench trial commenced in this case on July 25, 2011 and concluded on July 29, 2011.
Plaintiffs, Indiana Protection and Advocacy Services Commission (“IPAS”), Joshua Harrison,
Greggory Sims, and James Panozzo (collectively the “Plaintiffs”), filed an action against the
Commissioner of the Indiana Department of Correction (“IDOC”) claiming that the continual
confinement of seriously mentally ill prisoners in segregation violates their right to be free from
cruel and unusual punishment. The parties were present by their counsel of record. Evidence
was submitted and thereafter, the parties submitted supplemental records as part of the evidence,
and the Court, accompanied by counsel, toured portions of two of the prisons discussed during
the trial. Given the volume of evidence, 29 volumes and a five volume transcript, post-trial
briefs were then filed. This Entry shall constitute the Court’s findings of fact and conclusions of
law in accordance with Federal Rule of Civil Procedure 52.1 The Court hereby renders its final
Any finding of fact that is more properly considered a conclusion of law is adopted as such and vice versa. In
addition, the Court recognizes that there was conflicting testimony on some of the issues presented at trial and
decision regarding the matters presented at trial and finds Plaintiffs have prevailed as to their
Eighth Amendment claim.
I. FINDINGS OF FACT2
The Plaintiffs. In 1986, upon finding that “individuals with mental illness are vulnerable
to abuse and serious injury,” Congress enacted the Protection and Advocacy for Individuals with
Mental Illness Act, the Protection and Advocacy for Developmental Disabilities Act, and the
Protection and Advocacy for Individual Rights Act (collectively, the “PAIMI Act”). The purpose
of the PAIMI Act is to “ensure that the rights of individuals with mental illness are protected”
and to “assist States to establish and operate a protection and advocacy system for individuals
with mental illness which will . . . protect and advocate the rights of such individuals through
activities to ensure the enforcement of the Constitution and Federal and State statutes. . . .” 42
U.S.C. §§ 10801(a)(1), (b)(1), (b)(2)(A).
The PAIMI Act provides funding for a state on the condition that the state designates a
“protection and advocacy system” to accomplish these goals. 42 U.S.C. § 10803(2)(A). IPAS is
Indiana’s designated protection and advocacy system under the PAIMI Act. The PAIMI Act
gives a designated protection and advocacy system such as IPAS the authority to investigate
incidents of abuse and neglect of individuals with mental illness and to pursue administrative,
discussed herein. The Court has considered all of the evidence presented by the parties and the credibility of all of
the witnesses in arriving at its findings of fact.
Certain issues of fact cannot be resolved in this case without making a determination of which version of the
pivotal events was more credible. In making this and other determinations as to contested issues, the Court has
considered the customary factors associated with credibility–e.g., demeanor, detail, consistency, opportunity to
observe or perceive the events testified to. It has not relied solely on the number of witnesses who related a
particular event or on any other single factor. The Court must weigh a number of issues when making a credibility
determination of a witness, including the witness’s interest in the outcome of the case, his or her candor, and the
extent to which he or she has been supported or contradicted by other credible evidence. Courts have also weighed
such factors as a witness’s state of mind, strength of memory, and demeanor and manner on the witness stand.
Valdez v. Church’s Fried Chicken, Inc., 683 F.Supp. 596, 606 (W.D. Texas 1988) (citing Heelan v. Johns–Manville
Corp., 451 F. Supp. 1382, 1385 (D. Colo. 1978)).
legal, and other remedies on behalf of those individuals. 42 U.S.C. § 10805(a)(1). Accordingly,
IPAS proceeds here on behalf of the plaintiff class pursuant to the PAIMI Act. The Court earlier
found that the proposed class was properly certified pursuant to Rule 23(a) and Rule 23(b)(2) of
the Federal Rules of Civil Procedure. See Ind. Prot. and Advocacy Servs. Comm’n v. Comm’r,
Ind. Dept. of Corr., No. 1:08-cv-01317-RLY-JMS, 2010 WL 1737821 (S.D. Ind. Apr. 27, 2010).
The plaintiff class is defined as:
all current and future mentally ill prisoners who are committed to the Indiana
Department of Correction and who are housed in a setting in Department of
Correction institutions or in the New Castle Correctional Facility that features
extended periods of time in cells, including, but not limited to, prisoners in
disciplinary segregation, administrative segregation, or in the New Castle
IPAS is the designated entity proceeding on behalf of the class.
The Defendant. The defendant is IDOC Commissioner Bruce Lemmon who is being
sued in his official capacity only.
Overview of the IDOC
As of April 1, 2011, the IDOC housed approximately 26,800 adult offenders in a number
of facilities throughout Indiana. Medical and mental health care services are provided to IDOC
prisoners by employees of, and contractors with, a private company that has contracted with the
Until very recently, this company was known as Correctional Medical Services
(“CMS”), however, CMS merged with another entity and is now known as Corizon.
A number of the IDOC facilities have segregated housing units. Broadly speaking, there
are two types of segregation—disciplinary segregation and administrative segregation.
prisoner may be placed in disciplinary segregation for violating prison or IDOC rules.
According to The Use and Operation of Adult Disciplinary Segregation manual, prisoners may
be placed into these units for a definite time period pursuant to disciplinary segregation, as set
out in Administrative Procedure 02-01-112.
In contrast, a prisoner may be placed in
administrative segregation if the prisoner is considered a threat to the safety and security of the
facility or its operations; even though they have committed no disciplinary offense. For example,
a prisoner may be placed in administrative segregation for actions that may pose a risk of escape,
other risk, having a history of extensive misbehavior, or being affiliated with a gang. Prisoners
may be placed in these units for an indefinite time period, subject to periodic administrative
review, as set out in Administrative Procedure 02-01-111.
Housing for prisoners within IDOC facilities is either in the prison’s general population,
one of the segregation units, or another specially designated unit. The New Castle Psychiatric
Unit is included in the definition of the plaintiff class because of its similarity to conditions of
IDOC segregation units and because the New Castle Psychiatric Unit provides the highest and
most intense level of mental health care available to prisoners within the IDOC.
There are only two prisons which house adult female offenders within the IDOC, the
Indiana Women’s Prison (“IWP”) and the Rockville Correctional Facility (“Rockville”). With
respect to adult males, there are a number of facilities which house them. One facility, the New
Castle Correctional Facility, is operated by a private company, the GEO Corporation, under
contract with the State of Indiana, but the prisoners housed there are considered to be IDOC
prisoners. The following facilities are those which house adult males only:
Branchville Correctional Facility (“Branchville”)
Correctional Industrial Facility (“CIF”)
Indiana State Prison (“ISP”)
Miami Correctional Facility (“Miami”)
New Castle Correctional Facility (“New Castle”)
Pendleton Correctional Facility (“Pendleton”)
Plainfield Correctional Facility (“Plainfield”)
Putnamville Correctional Facility (“Putnamville”)
Wabash Valley Correctional Facility Custody Control Unit (“CCU”)
Wabash Valley Special Confinement Unit (“SCU”)
Westville Correctional Facility (“Westville”)
Westville Control Unit (“Westville WCU”)
Moreover, a number of the IDOC facilities have segregation units. The adult female facilities
which have segregation units are (1) IWP--25 beds (administrative and disciplinary segregation);
and (2) Rockville --24 beds (administrative and disciplinary segregation).
With respect to adult males, the following facilities have segregation units as specified in
the table below:
CCU (Wabash Valley)
SCU (Wabash Valley)
NATURE OF SEGREGATION UNIT
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
Administrative and Disciplinary
NUMBER OF BEDS
Thus, there are a total of 1,554 segregation beds for males and 49 for females.
The special confinement unit (“SCU”) at Wabash Valley is not part of the claims here. A
private settlement agreement filed on January 30, 2007, in Mast v. Donahue, No. 2:05-cv-37
(S.D. Ind.), provides that prisoners with Axis I mental diagnoses not be placed in the SCU at
Wabash Valley. Because of this settlement, this litigation does not concern prisoners confined in
the Wabash Valley SCU.
Conditions in Segregation Units
Subject to variations at the individual facilities, the conditions in each segregation unit
within IDOC facilities are basically the same:
All segregation prisoners spend the great majority of their day locked in their cells, up
to 22 hours and 45 minutes per day and, for some prisoners, all day.
All segregation units feature individual cells. The one exception to this is the
overflow segregation area at Plainfield, which contains 14 additional cells with
double-bunks that are used for administrative segregation purposes when the other
beds are full.
The cells all contain a bed and a sink/toilet unit. The bed may be concrete or metal
and is attached to either the floor or the wall. Some cells also have a metal table or
desk attached to the wall. Some have a metal stool secured to the cell floor. Some
have a shelf.
The cells are small. As an example, a segregation cell at the WCU is approximately
13’ by 6’. The cells at the CCU and in the segregation units at Pendleton are
approximately 8’ by 10’.
The cells generally have a small window to the outside world. Some institutions have
cells without windows, but the outside of the cells face a wall with windows. This
latter configuration predominates at Pendleton, whereas the former configuration
predominates at New Castle.
The doors on the cells vary. Most of the segregation units have solid doors with a
small window in the door and a cuff-port that opens up for the purpose of serving
meals or securing a prisoner’s arms before he or she is removed. The segregation
units at CIF, IWP, Miami, New Castle, Rockville, WCU, and CCU all have solid
doors. The cell doors at ISP have bars, although five of them have a permanent lexan
covering on them. The cell doors within the segregation units at Pendleton are onehalf mesh, with a slot for food trays. At Plainfield, the majority of doors have bars,
although some have solid doors. At Putnamville, one-half of the cell doors are solid,
while the others are barred.
Prisoners in segregation receive meals in their cells.
IDOC policy provides that prisoners in administrative segregation are offered one
hour of recreation five days a week. Prisoners who are in disciplinary segregation are
offered recreation seven days a week, although on two of the days the recreation
offered will be for only 30 minutes.
Every segregation unit has outdoor and indoor recreation areas where prisoners can
recreate by themselves. The exception to this is at ISP, which does not provide
outdoor recreation to prisoners located in disciplinary segregation (“IDU”).
Additionally, there is no indoor recreation at Pendleton. ISP allows prisoners to
recreate together as does Plainfield, although most prisoners at Plainfield recreate by
themselves. Even though prisoners, with the exception of those at ISP or possibly
Plainfield, recreate by themselves, in a number of facilities the outdoor recreation
takes place in cages that are contiguous to each other so that more than one prisoner
can be out, though separated, at the same time. These outdoor recreation cages are
used at CIF, Miami, New Castle, Pendleton, and the CCU at Wabash Valley. Other
facilities, such as Putnamville, Rockville and the WCU have solitary recreation pads
for individual prisoners. The outdoor recreation area may have a basketball goal,
although some have none. The indoor recreation takes place in small rooms which,
depending on the facility, may have nothing in them or may have a telephone to make
calls, a chin-up bar or an exercise bicycle.
Prisoners are not required to go to recreation and prisoners frequently refuse to leave
their cells for a number of reasons including, but not limited to, the early hours that
recreation is offered, the fact that prisoners may be asleep and not hear the
correctional officer offering recreation, and the fact that prisoners do not want to be
chained up to be led to a recreation area.
At times, recreation may be suspended for long periods of time for institutional
Showers are offered at least three times a week for 10-15 minutes. Prisoners are
locked into the showers and remain there for long periods of time if correctional staff
does not remove them. The showers are quite small and it can be distressing to be
locked in them for long periods of time.
When prisoners are released from their cells, even within the unit, to go to recreation
or to the showers, the prisoners are secured. Depending on the facility, the prisoners
are placed in at least hand restraints and may be placed in leg restraints as well. They
are escorted by one or two officers.
Hand restraints are secured when the prisoner, locked in his or her cell, puts his or her
hands through the cuff-port to be secured. The cell is then opened and leg restraints,
if used, are placed on the prisoner. The prisoner may be cuffed behind his or her back
or may be cuffed in the front with a “black box,” which is a security cover placed
over the handcuffs.
Subject to losing the privilege because of disciplinary infractions, generally prisoners
in administrative and disciplinary segregation may purchase radios. In some facilities
prisoners in administrative segregation may immediately purchase a television and
those in disciplinary segregation may purchase televisions after 90 days of clear
conduct (six months at PCF). However, in many segregation units, including the
following, there are no televisions available: CIF (except for one cell), IWP, New
Castle, Plainfield, Putnamville, Rockville, and Wabash Valley CCU.
Although the IDOC recognizes a distinction between long-term and short-term
segregation for male prisoners, many of the “short-term” units house prisoners longer
than six months. Therefore, at ISP prisoners may be housed in disciplinary
segregation (IDU) for up to one year and prisoners may be in administrative
segregation for up to four years. At Miami, prisoners may be confined up to one year
before being transferred to one of the long-term segregation units. It is possible for
segregation prisoners to stay for more than six months at New Castle, although the
average stay is less than three months. At Pendleton, which contains both short-term
and long-term segregation prisoners, there are prisoners who are still formally
classified as short-term prisoners who are being held for longer than six months in
both administrative and disciplinary segregation. Although the average length of stay
is less than six months, there are some prisoners in segregation at Plainfield who are
there for up to a year. There are some prisoners in the CCU at Wabash Valley who
may be there for more than one year. In March 2011, there were some prisoners who
had been there for two years. Transfers had been submitted to move these prisoners
to long-term segregation, but the transfers had not been processed or had been
There are no separate long-term and short-term segregation units for female prisoners
in the IDOC. Some prisoners in segregation at IWP have been confined for more
than one year. At Rockville, disciplinary segregation prisoners do not normally stay
for more than two months and the maximum stay on administrative segregation is
approximately six months.
The average length of stay in long-term administrative segregation at WCU is
approximately three years. For long-term disciplinary segregation, it is between one
and two years.
Some of the segregation units are air conditioned. However, some, including those at
Pendleton, ISP, and CCU, are not.
Additionally, the following correctional staffing patterns prevail on the segregation units
at the various prisons. Correctional officers work 12 hour shifts.
Indiana State Prison – Three officers are assigned to D-East on each shift and three
officers are assigned to IDU on each shift. There is a day shift and night shift. There
is a sergeant and lieutenant assigned to each day shift (although the lieutenant on DEast is only present Sunday through Thursday).
Indiana Women’s Prison – There are two officers on each shift. Additionally, there is
a lieutenant assigned to the unit for an 8-hour shift on weekdays. There is a sergeant
who is responsible for this unit as well as others.
Miami Correctional Facility – There are six officers and a sergeant on the day shift
and four officers and one sergeant on the night shift. One lieutenant is assigned on
New Castle Correctional Facility – There are four officers and one sergeant on the
day shift and three officers and a sergeant on the night shift. There is a lieutenant
who has responsibility for this area, as well as others, on both shifts.
Pendleton Correctional Facility – There are 5-7 officers and a sergeant and lieutenant
during the day shift in the segregation units, with the exception of protective custody.
During the evening the lieutenant is not there. There are three officers in protective
Plainfield Correctional Facility – When staffing is not full, there are two officers
assigned to the segregation unit as well as a sergeant.
Putnamville Correctional Facility – There are three officers assigned to the Maximum
Security Unit (MSU) each shift as well as a sergeant and a lieutenant who are
assigned to this and another unit five days a week.
Rockville Correctional Facility – When fully staffed there are three officers assigned
to the segregation unit on each shift and a lieutenant is assigned to this unit, and the
other housing units, on each shift.
Wabash Valley Correctional Facility – Five correctional officers are present on the
day shift and four on the night shift. There is a sergeant present as well.
Westville Control Unit – There are three officers assigned to each pod for each
twelve-hour shift. There are supervisors on each shift as well.
In addition to correctional officers, the units have one or more correctional counselors
and case managers. Correctional counselors serve as the liaison between the
prisoners and other departments, and process transfers and bed moves and address
other prisoner day-to-day needs; whereas the case manager is involved in planning for
the prisoners’ re-entry.
The following correctional programming is available for segregation prisoners:
Although prisoners in segregation may leave their cells for recreation, showers, visits
and medical and mental health appointments, they are generally otherwise confined in
their single cells.
There is generally no correctional programming available for segregation prisoners,
even in their cells, although prisoners may receive chaplain visits and library
materials in their cells.
There are two correctional programs at the Westville Correctional Unit. Neither are
mental health programs. One is the ACT program (for Actions, Consequences, and
Treatment). This is a program developed by the non-mental health staff person in
charge of the WCU and features videos and workbooks that prisoners watch and
complete in their cells. The workbooks are reviewed by a correctional counselor.
The ACT program features four phases, each lasting at least three months. If the
prisoner completes Phase 4 he will be recommended for discharge from segregation
and placed at ISP, Pendleton, or Wabash Valley. This allows the prisoner to leave
segregation sooner. Additionally, as the prisoner moves through the phases he will
receive more commissary opportunities.
The plaintiffs produced evidence from two expert witnesses, Kathryn A. Burns, M.D.,
M.P.A. (“Dr. Burns”) and Robert Walsh, Ph.D. (“Dr. Walsh”). The Commissioner did not offer
evidence from an expert. Dr. Burns, a psychiatrist, testified that a mental illness is a biologically
based brain disorder that has a behavioral manifestation, some functional manifestation, and
some psychological manifestations. Courts have used the term “mental disorder” to characterize
“organic functional psychoses, neuroses, personality disorders, alcoholism, drug dependence,
behavior disorders, and mental retardation.” Ruiz v. Estelle, 503 F. Supp. 1265, 1332 n.140
(S.D. Tex. 1980), aff’d in part & rev’d in part, 679 F.2d 1115 (5th Cir. 1982). This definition is
consistent with the evidence in this case and is adopted in this decision.
The Diagnostic and Statistical Manual, 4th edition (“DSM-IV”) is published by the
American Psychiatric Association and is an attempt to establish standard criteria for the
classification of mental disorders. The DSM-IV organizes each mental health diagnosis into five
dimensions as follows:
clinical disorders, including the major mental disorders (such as
schizophrenia, bipolar, depression and anxiety disorders)
personality disorders and intellectual disabilities
physical disorders which may or may not impact on psychological
psychosocial and environmental factors that contribute to the
disorder or impact on functioning
the global assessment of functioning or GAF score
To annotate on this in a limited fashion, Axis II includes a variety of personality disorders which
are mental disorders that can cause severe personal and social disruption. The GAF is a numeric
score from 0-100 that mental health professionals use as a measure of the patient’s symptom
severity and level of social, occupational and psychological functioning, with 0 being the lowest
and 100 being the highest.
A mental illness is properly characterized as “serious” based on two features of the
diagnosis—one being the duration that the person has the illness and the second being the degree
of disability or functional impairment that it causes. In the context of this case, the term
“seriously mentally ill” includes prisoners with a current diagnosis or recent significant history
of a DSM-IV Axis I diagnosis of: schizophrenia, delusional disorder, psychotic disorder,
schizoaffective disorder, schizophreniform disorder, major depression, bipolar disorder who are
actively suicidal. And, the term includes prisoners who have engaged in a recent serious suicide
attempt, regardless of diagnosis, who because of their mental illness have a recent history of
hallucinations, or who have organic brain syndrome, mental retardation, or severe anxiety
disorder, leading to significant functional impairment or self-harm behaviors or who have
personality disorders manifesting in frequent episodes of psychosis or depression. A psychosis is
a break with reality.
Mental Health Units
There are two mental health units within the IDOC. These units are the New Castle
Psychiatric Facility and the Special Needs Unit (“SNU”) at Wabash Valley. The Court will
address each of these units in turn:
New Castle Psychiatric Facility. The New Castle Psychiatric Facility, located at the New
Castle Correctional Facility, has 128 beds and is a unit that is designed to provide specialized
mental health services. The New Castle Psychiatric Facility is a unit that is admittedly for those
seriously mentally ill prisoners who need the most intensive treatment. It is not classified as a
segregation unit by the IDOC. Prisoners placed into the New Castle Psychiatric Facility are
those who the mental health staffs at New Castle and the sending institution, in conjunction with
Dr. Wiles, the Regional Mental Health Director for CMS, determine cannot function in a
standard prison environment. The following highlights features of the New Castle Psychiatric
Facility for purposes of this litigation:
The facility has eight ranges, 100-800, with 16 beds on each range.
Included within the ranges are Stabilization and Assessment Unit (“SAU”), a
Behavioral Adjustment Unit (“BAU”), and a Chronic Care Unit (“CCU”).
The 800 range is primarily the SAU. Prisoners are housed there for a short period of
time, generally a week. They are then generally moved into either the CCU or BAU.
On rare occasions the prisoners are stabilized and are returned to their sending prison.
The 200, 400, and 600 ranges, and part of the 100 range are the CCU, which houses
primarily prisoners with Axis I diagnoses.
The 300, 500, and 700 ranges are for Axis II prisoners.
The expectation is that prisoners within the New Castle Psychiatric Unit will be
discharged to the SNU at Wabash, which is a step-down or less restrictive unit.
Prisoners within the New Castle Psychiatric Unit are housed in single cells with a
solid door containing a small window and a cuff-port that is used as a food slot.
There are three phases of programming –
Prisoners in Phase 1 are not allowed a television and have daily recreation in
indoor or outdoor individual recreation cages.
Prisoners in Phase 2, if they are not considered to be a danger to themselves, may
have a television. They also have recreation in indoor or outdoor individual
Phase 1 and 2 prisoners are cuffed behind their back and escorted when they are
out of their cells.
Phase 3 prisoners may recreate with others.
All prisoners eat by themselves in their cells, although prisoners who have progressed
through the program and are ready to leave are able to eat outside of their cells.
All prisoners are supposed to have at least one group therapy meeting a week. These
are conducted in a room and the prisoners in Phase 1 and 2 are cuffed.
The groups are primarily based on Dialectical Behavior Therapy (“DBT”), a form of
therapy designed for persons with personality disorders. At the WCU, there is also
an effort for psychotherapy treatment to be based on Cognitive Behavioral Therapy
In addition to at least one group session a week, prisoners are to have individual
therapy as well. This takes place in the same room that group therapy takes place or
with the prisoner in a caged area in the day room that is in each unit.
Individual prisoners may not be offered group every week and individual therapy may
be as infrequent as two times, or less, a month.
All medical records within the IDOC are electronic and all therapeutic and other
important events are to be recorded.
The mental health staff at the New Castle Psychiatric Facility consists of two
psychologists, two master’s level mental health professionals, and two psychiatric
technicians with bachelor degrees. Additionally, there is a psychiatrist who is there
for 8-10 hours each week and who is responsible for medication management.
Twice a day, a mental health staff person conducts rounds. These are typically very
cursory, involving walking by the cell front, looking into the cell and moving on.
They may not involve any conversation with the prisoner.
Phase 3 prisoners may be allowed out of their cells into the day room on each range
for an hour of “free time.” However, all other prisoners are generally confined to
their cells other than for therapy, showers, recreation, or visits, except for 3-4
prisoners who are in an educational program where they are placed in recreation
cages inside a gymnasium and meet with teachers. Additionally, some prisoners are
brought out and put into the cages to attend religious services. Six prisoners are
allowed to attend religious services in the day room.
The New Castle Psychiatric Unit, although not classified as a segregation unit, features
similar isolation due to the great deal of time prisoners spend in their cells during Phases 1 and 2
and the infrequency of treatment. The correctional staffs at the New Castle Psychiatric Unit
work in two daily shifts, a day shift and night shift. During the day shift there are 17 officers,
plus a sergeant and a lieutenant on duty. During the evening shift, from 5:00 p.m. to 5:00 a.m.,
there are 8 officers, plus a sergeant on duty.
Dr. Burns’ description of her site-visit to the New Castle Psychiatric Unit is informative
and offers her insight into the adequacy of mental health care being provided there:
Inmates in all phases of treatment displayed remarkably high levels of psychiatric
symptoms; some were frankly psychotic with disorganized and delusional
thinking; some displayed mood symptoms—manic as well as depressive
symptoms. This degree of pathology was not unexpected given that the MHU is
identified as the place providing the highest or most intensive level of care.
However, what was surprising was the lack of intensive treatment provided:
treatment plans are not adjusted or revised to address on-going or worsening
symptoms; medication adjustments are infrequent and some inmates who had
inappropriately been taken off of medications by one psychiatrist hadn’t yet been
seen by the new doctor even though they had been identified as priority cases;
some inmates were receiving no treatment whatsoever; some were held in the
program with no improvement or access to property, recreation or out-of-cell time
for extended periods of time (years in some instances) without treatment.
The psychiatric shortfalls noted by Dr. Burns are significant in their impact on mentally ill
prisoners at the New Castle Psychiatric Unit, although it is not known whether her description
represented a chronic or simply an acute condition of that Unit.
SNU at Wabash Valley. The SNU at Wabash Valley can house up to 134 prisoners and
is a step-down unit for mentally ill prisoners to progress through and into general population. It
also is not classified as a segregation unit by the IDOC. The SNU, like the New Castle
Psychiatric Unit, houses prisoners who are unable to function in the general population because
of their mental illness. The majority of the prisoners at the SNU have Axis I diagnoses, meaning
a major mental disorder such as schizophrenia, bipolar disorder, depression or anxiety disorders.
The following features of the SNU at Wabash Valley are relevant for purposes of this litigation:
Most prisoners enter the SNU from the New Castle Psychiatric Unit. When a
prisoner enters the SNU, he is placed into a brief assessment and orientation phase.
This may only last 24 hours.
The prisoner is then placed into a transitional phase that could last more than a month,
although ideally it should be two weeks or less.
After that, the prisoner is moved into Phase 3, which corresponds to the Phase 3 at
New Castle Psychiatric Facility.
The program is designed for the prisoner to progress through Phases 3, 4, and 5 and
then into general population.
Prisoners in the transitional phase are individually celled but are released for an hour
of recreation each day and are released for meals that are taken in a common area.
Prisoners in the transitional phase and in Phases 3, 4 and 5 receive a group session
once a week that is a DBT-informed, skills training group. Prisoners in Phase 5
receive an additional transition group meeting each week.
Every prisoner receives at least one individual therapy session a month. The
individual therapy lasts for 20-60 minutes and takes place in the common area if there
is a perceived need for greater security and, if not, in an office with the door open.
During the transitional phase prisoners are held in cells on the right side of the unit.
Once transition is over they are moved to the left side in double cells, although some
prisoners continue to be housed individually.
Once the prisoners are in Phase 3, they receive more recreation, including recreation
in a gymnasium and in the common area at night.
Prisoners in the transitional phase cannot have televisions. Those in the other phases
may have a television.
In Phase 4, prisoners are allowed to go to the main chow hall for meals as a group and
are able to attend programming in the Offender Services Building, such as chapel and
educational services. They can travel to the law library and institution library without
an escort. Phase 5 prisoners have recreation and eat with a specific general
If prisoners in the SNU break rules they may be placed in “phase modification,”
which means they are restricted to their cells for up to 45 days at a time. During this
time period they receive individual therapy and recreation by themselves. They do
not participate in group therapy.
During both shifts there are generally three correctional officers on the unit and a
Mentally Ill Prisoners in Segregation
A survey done by the IDOC in early January 2010 disclosed that of the 26,753 IDOC
prisoners at that time, 5,458 had an Axis I diagnosis, 1,758 had an Axis II diagnosis, and there
were 1,349 prisoners who had both an Axis I and II diagnosis. This means that 5,867 prisoners
were diagnosed as mentally ill, which is 22% of the total IDOC prisoner population. Dr. Burns
found the prevalence of persons with Axis I and Axis II disorders in segregation to be around
33%. Thus, there is a disproportionately high number of mentally ill prisoners within the
segregation units within the IDOC.
The tally of mentally ill prisoners in segregation is listed in the chart below:
SEGREGATION MENTAL HEALTH ROSTERS TALLIES
WITH AXIS I
WITH AXIS II
(including those ONLY
with Axis II as
INDIANA WOMEN’S 4
AXIS I & II
The IDOC, through Corizon, has mental health staff in IDOC institutions. IDOC policies
are set forth in the Health Care Service Directives (“HCSD”). Each policy has a title and a
corresponding numerical designation, i.e.:
Mental Health Services Plan, HCSD 4.03
Health Evaluation of Offenders in Segregation, HCSD 2.25
The mental health evaluation sequence is as follows:
If a prisoner with a mental health diagnosis is assigned to a segregation unit a health
record review is to be completed within 24 hours. This is to include a suicide risk
screening and observation by nursing staff.
If the prisoner has a mental health diagnosis or if there are reasons to believe he has
mental health needs, the lead psychologist or his or her designee will review the
records to determine if there are reasons that the prisoner should not be admitted.
Thereafter, the psychologist will review the chart of the prisoner and meet with him
or her within a short period of time.
A treatment plan will be drawn up for the prisoner.
In practice, however, mental health treatment is principally limited to issuance of medication,
prisoner conversations with the mental health staff, and mental health staff’s response to
incidents of actual and attempted self-harm. There is no group therapy for mentally ill prisoners
There is a difference, however, between monitoring—referred to within the CCU, for
example, as a “mental status check”—and treatment. The pervasive function of mental health
staff within the IDOC has become a mixture of responding to crises and responding to prisoner
requests to be seen. The 30-day reviews are ineffectual because of insufficient mental health
staff and because of the circumstances on the unit, meaning the inability of custody staff to
regularly place the prisoner in a setting where reasonable privacy in communication can be
attained. Although the loss of privacy is a condition of imprisonment, the loss of privacy in
communication with medical staff restricts the prisoners ability to be candid when providing
information. Information in a prison is, as Dr. Walsh explained, a commodity. The obtainment
of Information within a prison can be used to make a mentally ill prisoner more vulnerable in
their relations with both custody staff and other inmates.
The mental health staff available in the segregation units, with the exception of
psychiatrists, is as follows:
At Branchville, there is a mental health professional that spends 1-4 hours a week
on the segregation unit.
At the CIF, there is a master’s level mental health professional that spends
approximately 2.5 hours a week in the segregation unit.
At ISP, there is a psychologist and three master’s level clinicians who provide
services for the segregation units. One clinician is assigned to the IDU and one is
assigned to the D unit.
At ISP, there is no specific staff assigned to the segregation unit, although a
psychologist and a master’s level mental health professional will provide services
At Miami, mental health staffs are on the segregation unit approximately 25 hours
The segregation unit at New Castle is serviced, as needed, by a psychologist and a
master’s level clinician.
In the segregation units at Pendleton, services are provided primarily by three
mental health practitioners. Two of them spend two afternoons a week in the
units and one is there full-time. There is only one psychologist in the institution
and his contact with the segregation unit is limited to crisis management.
At Plainfield, the psychologist is in the segregation unit for 1-2 hours every
Monday, Wednesday and Friday and a master’s level mental health professional is
on the unit 1-2 hours each Tuesday and Thursday.
At Putnamville, a psychologist is on the unit 10 hours a week as is a mental health
professional. A mental health staff member is also on call for the unit, as needed.
At Rockville, mental health reviews are completed between 8:00 a.m.-12:00 p.m.
on Wednesdays and 12:00 p.m.-4:30 p.m. on Fridays.
At Westville, there is one master’s level practitioner in the segregation unit and a
psychologist present 2-3 days a week.
At the CCU at Wabash Valley, one psychologist is present part-time two days a
week and a second psychologist is present part-time two days a week. There are
also times when there is a master’s level mental health professional as well.
Additionally, a mental health professional provides services to the eight prisoners
in CCU who are under 18 years old.
In addition, each segregation unit receives part-time services from a psychiatrist or, at
New Castle, a nurse practitioner. These services are primarily limited to the prescription and
management of medications designed to control mental health symptoms. A large majority of
the prisoners with mental illnesses in segregation in the IDOC receive such medication. IDOC’s
mental health services plan provides that:
All offenders in segregation, even if no mental illness is present, must be
evaluated by a qualified MHP (mental health professional) after no more than 30
days in segregation and every 30 days thereafter…. Mental health evaluations of
offenders with a(n) identified mental health need(s) must be done in a location
which affords the offender confidentiality; the evaluation may not be done at the
offender’s cell front.
Although a lack of privacy is the default in a prison setting, it is nonetheless
essential that the mental health practitioner meet privately with the prisoner in a
setting where other prisoners and correctional staff are not present. Otherwise, an
accurate mental health assessment cannot occur.
A number of facilities, including Pendleton, Putnamville, and the WCU, do not interview
prisoners with Axis II diagnoses outside of their cells. Prisoners, even those with Axis I
diagnoses, frequently are not removed for an out-of-cell evaluation every 30 days but have them
at their cell-fronts even though the prisoner has not refused to leave his or her cell. At times,
prisoners are not removed for the out-of-cell evaluation because there are insufficient
correctional staff to move the prisoners or because of other scheduling difficulties that are no
fault of the prisoner.
And, prisoners often refuse to leave their cells. This occurs because the conversation
with the therapist, even in private, may be only a few minutes and the prisoner believes it is not
useful and it is not worth the shackling. Also, given the infrequency of potential contact with the
mental health staff, the prisoner may refuse because he justifiably does not perceive it as useful.
Further, an evaluation every 30 days is not frequent enough to disclose mental health problems,
symptoms or deterioration. The evaluations, when they occur, are generally very cursory. The
electronic medical records contain a template that allows the therapist to note objective
symptoms as well as subjective ones. Frequently, this template is completed in a manner such
that the objective symptoms do not match the subjective ones, indicating that the records have
been completed with little individual attention. The template allows the mental health staff
person to check one box marked “normal” and then all the objective symptoms are completed as
Treatment plans are completed for each segregation prisoner with a mental health
diagnosis and are to be reviewed periodically. These are also generated through a template in the
electronic medical records, are usually very general, and are completed without input from the
prisoner. Prisoners are able to request individual visits from mental health professionals in
addition to the periodic reviews and may be seen more frequently without such a request.
However, in the segregation units, with some exceptions, prisoners who are not on a suicide or
self-harm watch are generally seen only monthly by the mental health professionals, not
including psychiatrist visits.
Mentally ill prisoners who are on psychiatric medications are seen by a psychiatrist (or
nurse practitioner at New Castle) at least every 90 days to review medication. The role of the
psychiatrist with regard to the care of mentally ill prisoners in segregation is to deal with
medication issues. Additionally, HCSD 2.25 requires that a member of the nursing staff, either
an RN or LPN, make rounds on each segregation unit once a day. This may include the time
when medication is given to the prisoner in his or her cell. If no medication is delivered, the
nurse is to look into the cell and attempt to ascertain if the prisoner’s condition is satisfactory.
However, this may just be a visual check without any conversation with the prisoner. The
prisoner may not even know that the check is being done, either because the prisoner is asleep or
not otherwise attentive to the presence of the nurse.
The goal of mental health care in the correctional setting is to prevent harm from
occurring to prisoners and to prevent prisoners from causing harm as a consequence of a mental
condition that significantly influences their behavior. The consensus of opinion in a professional
body of literature on the subject presented in this case is that segregation is detrimental for
people with serious mental illness because it makes their symptoms worse or because, at best,
they do not get any better.
Segregation Harms Mentally Ill Prisoners
Based on the extensive evidence presented in this case the Court finds that there are three
ways in which segregation is harmful to prisoners with serious mental illness. The first is the
lack of social interaction, such that the isolation itself creates problems. The second is that the
isolation involves significant sensory deprivation. The third is the enforced idleness, permitting
no activities or distractions. These factors can exacerbate the prisoners’ symptoms of serious
mental illness. This condition is known as decompensation, an exacerbation or worsening of
symptoms and illness.
Decompensation can be manifested by a prisoner experiencing auditory or visual
hallucinations, sleep disturbance, memory problems, anxiety, paranoia, depression, eating
problems, or engaging in self-injury or suicide. These symptoms can produce behavior which
constitutes a threat to the safety of staff or to that of the prisoner himself. It can also produce
behavior which makes the assessment process more difficult, such as when a prisoner’s paranoia
induces him to refuse to leave his cell. Decompensation will not invariably occur when a
seriously mentally ill prisoner is placed and kept in segregation, but may commence as soon as
10 days to two weeks after such placement.
Moreover, these pernicious effects of segregation on prisoners with serious mental illness
are known to the IDOC. In a Mental Health Services Plan dated July 1, 2008, the IDOC stated
that the primary goal of the mental health professional in one of the units at the New Castle
Correctional Facility “is to prevent decompensation secondary to confinement in segregation
housing.” These effects are also known by the mental health providers who see, assess, and treat
prisoners in segregation.
Additionally, these effects are known by the IDOC through the private settlement
agreement to an earlier lawsuit, Mast v. Donahue, No. 2:05-cv-37 (S.D. Ind.), wherein the IDOC
agreed that prisoners with Axis I diagnoses would not be placed in the Special Confinement Unit
and to which the Commissioner of the IDOC stated:
These offenders may have been diagnosed with a mental disorder that is worsened
by confinement in a Secure Confinement Unit [SCU]. In these cases, it is in the
best interests of the Department to attempt to obtain mental health treatment for
these offenders rather than simply placing them in a long-term disciplinary
segregation or Department-wide administrative segregation unit.
IDOC policy also recognizes that it is important that non-seriously mentally ill prisoners
who are now confined in the Special Confinement Unit at Wabash Valley Correctional Facility
be seen by a licensed mental health professional at least weekly and that the visits “take place in
a setting where an accurate evaluation of the offender’s mental health status can occur.” Thus,
the IDOC is aware that some mentally ill prisoners have mental disorders that are worsened by
segregated confinement and that segregation can cause or accelerate and intensify
decompensation. The deterioration and injury caused to mentally ill prisoners by segregation is
documented by the IDOC in prisoner medical records, suicide and self-harm reports, and reports
of use of force incidents. As Dr. Walsh’s report explains:
The fact is that mentally ill people often have difficulty conforming to prison
rules and regulations, and are more likely than other prisoners to be cited for
disciplinary infractions. In the isolation of these segregation units, there is a very
high risk that mentally ill prisoners will decompensate and become more
dysfunctional and harder to manage.
The evidence in this trial overwhelmingly shows that decompensation is psychologically
painful to a mentally ill prisoner. “Psychological pain” includes pain and suffering associated
with feeling depressed, anxious, having nightmares, memory problems, worries, and anxieties.
This pain is also experienced as feelings of confusion, of being lost, and of being misunderstood.
This pain produces suffering, and a delay in treating the condition complicates the condition, can
accelerate or intensify decompensation, and can reduce the chances of a mentally ill prisoner
achieving or re-establishing an optimal level of functioning. Decompensation is influenced by
environmental circumstances, particularly isolation. The psychological pain associated with
decompensation can produce in a mentally ill prisoner the desire to commit self-harm. This
could occur through what is termed a “command hallucination.” It can also occur because the
prisoner seeks to relieve tension, to get attention, or to replace the psychological pain with
Decompensation lengthens the time needed for a mentally ill prisoner’s cognitive and
psychological functioning to be restored and in some instances there will be no full restoration.
Indeed, in some instances life hangs in the balance.
Tragically, a disproportionately high
percentage of suicides are committed by prisoners in segregation compared with those in the
general population of a prison system. This is true both within the IDOC and in correctional
settings across the country. Within the IDOC, since the beginning of 2007, 11 of 23 suicides
were committed by mentally ill offenders in a segregated setting. Thus, nearly one-half of the
prisoner suicides during this period of time were committed by 22% of the total IDOC prisoner
population. Stated otherwise, the rate of prisoner suicides in segregation was nearly three times
that of prisoner suicides in other housing units.
Further, decompensation multiplies and complicates symptoms of a mentally ill prisoner
and is likely to require more intense intervention by mental health providers and custody staff
alike. There have been instances in which decompensation of a mentally ill prisoner in
segregation has resulted in his transfer from segregation to the New Castle Psychiatric Facility.
When a prisoner is known to have threatened or attempted to commit suicide, he may be
removed from segregation and placed on suicide watch in a cell with fewer amenities where he
can be observed more closely by staff. The result, in the short term, is an environment where the
prisoner experiences greater deprivations and less privacy. This also results, in the short term, in
a decreased risk of repeated efforts of self-harm. The prisoner’s symptoms, however, will likely
intensify unless this is accompanied by appropriate therapy. Unfortunately, it is not.
To reiterate, the severe conditions in the segregation units cause a predictable
deterioration of the mental health of seriously mentally ill prisoners and the IDOC has explicitly
observed, diagnosed and noted patient decompensation. Records from a prisoner who recently
committed suicide disclose that there was only one correctional staff member for the entire area
and the staff person was unable to visually supervise the prisoner. Records of another prisoner
who committed suicide in late 2010 note that on one occasion shortly before his death he could
not be brought to a mental health appointment because “custody unable to escort.” He was not
seen for a week. He was scheduled to be seen again shortly before his suicide, but his medical
records note that he “did not appear” for the appointment. He committed suicide within days of
the missed appointment.
As indicated above, lack of correctional staff prevents prisoners from having private
conversations with mental health staff which is immediately harmful to the prisoners by delaying
and/or preventing treatment which is necessary. Accordingly, there is a difference between
mental health monitoring and mental health treatment. The IDOC is performing the former in its
segregation units, but very little of the latter. The Plaintiffs’ thesis that the effect of segregation
on mentally ill prisoners in Indiana is toxic to their welfare is supported by a preponderance of
Without appropriate treatment and appropriate relief, the toxic effects of
segregation will continue to cause serious injury to mentally ill prisoners.
II. CONCLUSIONS OF LAW
Based on the foregoing findings of fact, the Court makes the following conclusions of
Class Action Relief
As a threshold matter, the Court must determine whether this action may proceed as a
class action. As a result of the Commissioner’s failure to respond to the Plaintiffs’ motion for
class certification, the motion was granted subject to a thorough summary ruling. As mentioned
earlier, the Court found that this action qualifies for class-action treatment because all of the
prerequisites of Federal Rule of Civil Procedure 23(a) and the requirements of 23(b)(2) are
satisfied (See Dkt. 109). Although the Commissioner does not specifically ask the Court to
decertify the class, in his post-trial brief he argues that “no class-wide relief is possible in this
The Commissioner relies on the Supreme Court’s decision in Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541 (2011), in seeking decertification of the class. Insofar as is pertinent
here, it was held in Wal-Mart that class certification of a putative class of 1.5 million current and
former female employees of Wal-Mart Stores, Inc., was inappropriate because (1) the plaintiffs
had failed to show that there was a common question of law or fact as Rule 23(a) requires and
(2) the plaintiffs’ claims for back pay could not be properly certified under Rule 23(b)(2). Id. at
2556–57, 2561. The Commissioner asserts that commonality is missing in this case. The Court
is not persuaded. The mentally ill prisoners here, have demonstrated through a wealth of
evidence, that the class is united by the common question of whether the lack of treatment and
isolated living conditions in IDOC facilities violate the Eighth Amendment.
Although Rule 23 permits the court to modify a ruling concerning a previously certified
class: “An order that grants or denies class certification may be altered or amended before final
judgment.” Fed. R. Civ. P. 23(c)(1)(C). After a certification order is entered, “the judge remains
free to modify it in the light of subsequent developments in the litigation.” Gen. Tel. Co. of SW
v. Falcon, 457 U.S. 147, 160 (1982). That includes the ability to decertify a class should
circumstances so dictate. Eggleston v. Chic. Journeymen Plumbers’ Local Union No. 130, 657
F.2d 890, 896 (7th Cir. 1981). In this case however, the Court found that the proposed class fit
within Rule 23(b)(2) in that “the party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). Because this action
seeks injunctive relief to prevent future allegedly illegal deprivations of civil rights, it is a ‘prime
example[ ]’ of a proper class under Rule 23(b)(2).” Ind. Prot. & Advocacy Servs. Comm’n ,
2010 WL 1737821, at *2.
The only manner in which the class certification should be changed at this point is to
expand the basis on which certification is warranted to include Rule 23(b)(3). Jacks v. DirectSat
USA, LLC, No. 10 CV 1707, 2012 WL 2374444 (S.D. Ill. June 19, 2012) (citing McReynolds v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 490 (7th Cir. 2012)); Olson v.
Brown, 284 F.R.D. 398 (N.D. Ind. July 25, 2012). In Wal-Mart Stores, Inc., the Supreme Court
specifically noted that it did not consider whether the class could properly be certified under
Rule 23(b)(3) as opposed to Rule 23(b)(2). 131 S. Ct. at 2548–49 n.2. Nothing in Wal-Mart
itself makes the Rule 23(b)(2) class certified in this case improper.
That said, even if the Court concluded otherwise, IPAS itself is, as the designated entity
pursuant to the PAIMI Act, entitled to proceed on behalf of the plaintiff class members. The
Commissioner’s request that the plaintiff class be decertified based on Wal-Mart is DENIED.
42 U.S.C. § 1983
The action is brought pursuant to 42 U.S.C. § 1983, “the ubiquitous tort remedy for
deprivations of rights secured by federal law (primarily the Fourteenth Amendment) by persons
acting under color of state law.” Jackson v. City of Joliet, 715 F.2d 1200, 1201 (7th Cir. 1983),
cert. denied, 465 U.S. 1049 (1984). To state a claim for relief under Section 1983, a plaintiff
must allege that: (1) he was deprived of a right secured by the Constitution or laws of the United
States; and (2) the deprivation was visited upon him by a person or persons acting under color of
state law. Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004). To sue
under Section 1983, a plaintiff must first allege a violation of a federal statutory or constitutional
right – not merely a violation of a federal law. See Blessing v Freestone, 520 U.S. 329, 340
(1997). “The purpose of § 1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to victims if such
deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
This Court has jurisdiction over both the subject matter and the parties to this action. 28
U.S.C. § 1331. Because Section 1983 is a method for vindicating federal rights, not a source of
substantive rights itself, the first step in an action under Section 1983 is to identify the specific
constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
For convicted prisoners, the “constitutional source of a deliberate indifference claim is
the Eighth Amendment’s ban on cruel and unusual punishment.” Cotts v. Osafo, 692 F.3d 564,
567 (7th Cir. 2012); see Helling v. McKinney, 509 U.S. 25, 31 (1993) ("It is undisputed that the
treatment a prisoner receives in prison and the conditions under which he is confined are subject
to scrutiny under the Eighth Amendment"). To incarcerate, society takes from prisoners the
means to provide for their own needs. Prisoners are dependent on the State for food, clothing,
and necessary medical care. A prison’s failure to provide sustenance for inmates “may actually
produce physical ‘torture or a lingering death.’” Estelle v. Gamble, 429 U.S. 97, 103 (1976)
(quoting In re Kemmler, 136 U.S. 436, 447 (1890)).
That said, the Eighth Amendment applies to states through the Due Process Clause of the
Fourteenth Amendment. Gillis v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006) (citing Robinson v.
California, 370 U.S. 660 (1962)). The Eighth Amendment “must draw its meaning from the
evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356
U.S. 86, 101 (1958). “Prisoners retain the essence of human dignity inherent in all persons.
Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual
punishment. The basic concept underlying the Eighth Amendment is nothing less than the
dignity of man.” Brown v. Plata, 131 S. Ct. 1910, 1928 (2011) (citations omitted); see Estelle,
429 U.S. at 102 (concluding that the Eighth Amendment “embodies broad and idealistic concepts
of dignity, civilized standards, humanity, and decency . . . against which we must evaluate penal
measures” (citations omitted)).
Central to the present dispute, the Eighth Amendment’s prohibition against cruel and
unusual punishment imposes upon jail officials the duty to “provide humane conditions of
confinement” for prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). This duty includes
the obligation to “ensure that inmates receive adequate food, clothing, shelter, protection, and
medical care.” “[W]hile ‘the Eighth Amendment forbids cruel and unusual punishments; it does
not require the most intelligent, progressive, humane, or efficacious prison administration.’”
Thomas v. Ramos, 130 F.3d 754, 763 (7th Cir. 1997) (quoting Anderson v. Romero, 72 F.3d 518,
524 (7th Cir. 1995)); see Farmer, 511 U.S. at 832. “After incarceration, only the unnecessary
and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the
Eighth Amendment.” Johnson v. Phelan, 69 F.3d 144, 147 (7th Cir. 1995) (quoting Whitley v.
Albers, 475 U.S. 312, 319 (1986), cert. denied sub. nom., Johnson v. Sheahan, 117 S. Ct. 506
In the context of medical care, the constitutional standard is:
Deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment.
This is true whether the indifference is manifested by . . . prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.
Estelle, 429 U.S. at 104–05. “The Eighth Amendment safeguards the prisoner against a lack of
medical care that may result in pain and suffering which no one suggests would serve any
penological purpose and prison officials violate the Constitution if they are deliberately
indifferent to prisoners’ serious medical needs.” Kress v. CCA of Tenn., LLC., 694 F.3d 890, 892
(7th Cir. 2012) (internal quotation and citations omitted). Another phrasing of the proper
standard is a useful reminder:
There is more to a subhuman-conditions case than subhuman conditions.
“Punishment,” for purposes of determining tort liability under 42 U.S.C. § 1983
for violation of the Eighth Amendment’s prohibition against the infliction of cruel
and unusual punishments, has both an objective and a subjective component. The
objective component is the nature of the acts or practices alleged to constitute
cruel and unusual punishment. Are they such acts or practices as would be
deemed cruel and unusual if prescribed in a state or federal statute as the lawful
punishment for a particular offense?
The subjective component of unconstitutional “punishment” is the intent with
which the acts or practices constituting the alleged punishment are inflicted. The
minimum intent required is “actual knowledge of impending harm easily
preventable.” Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985)
(emphasis added); see Wilson v. Seiter, 501 U.S. 294, 111 S. Ct. 2321, 115
L.Ed.2d 271 (1991); McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991). A
failure of prison officials to act in such circumstances suggests that the officials
actually want the prisoner to suffer the harm. If the harm is remote rather than
immediate, or the officials don’t know about it or can’t do anything about it, the
subjective component is not established and the suit fails. See e.g., Wilson v.
Seiter, supra, 111 S. Ct. at 2326.
Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).
These factors notwithstanding, one who makes a claim under the cruel and unusual
punishments clause must show that the state has created risk or inflicted pain pointlessly. “A
medical need is considered sufficiently serious if the inmate’s condition has been diagnosed by a
physician as mandating treatment or is so obvious that even a lay person would perceive the need
for a doctor’s attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (internal quotation
marks and punctuation omitted). The medical condition need not be life-threatening; “it could be
a condition that would result in further significant injury or unnecessary and wanton infliction of
pain if not treated.” Id. (quoting Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)).
Similarly, the fact that a prisoner received some treatment does not foreclose his deliberate
indifference claim; deliberate indifference to a serious medical need may be manifested by
“woefully inadequate action” as well as no action at all. Reed v. McBride, 178 F.3d 849, 854
(7th Cir. 1999).
Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and “either acts or fails to act in disregard of that risk.”
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). Delaying treatment may constitute
deliberate indifference if such delay “exacerbated the injury or unnecessarily prolonged an
inmate’s pain.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (citing Estelle, 429 U.S.
at 104–05). “Even a few days’ delay in addressing a severely painful but readily treatable
condition suffices to state a claim of deliberate indifference.” Smith v. Knox Cnty. Jail, 666 F.3d
1037, 1040 (7th Cir. 2012). Mere disagreements between providers are not proof of deliberate
indifference to serious medical needs. White v. Napoleon, 897 F.2d 103, 110 (8th Cir. 1990).
Deliberate indifference requires a showing of more than mere or gross negligence, but less than
purposeful infliction of harm. Matos v. O’Sullivan, 335 F.3d 553, 557 (7th Cir. 2003). See, e.g.,
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009) (prisoner
complaining of severe pain from his IV was not treated for four days); Edwards v. Snyder, 478
F.3d 827, 830 (7th Cir. 2007) (prisoner who dislocated his finger was not treated for two days);
Cooper v. Casey, 97 F.3d 914, 916–17 (7th Cir. 1996) (prisoners beaten and maced by prison
guards were not treated until the following day).
Likewise, a claim of denial of psychiatric care can, under certain circumstances, amount
to deliberate indifference. Woodall v. Foti, 648 F.2d 268 (5th Cir. 1981). This is one important
path which has emerged in Eighth Amendment jurisprudence in recent years. See, e.g.,
O’Connor v. Donaldson, 422 U.S. 563, 573 (1975) (court stated that there was “no reason now to
decide whether mentally ill persons dangerous to themselves or to others have a right to
treatment upon compulsory confinement by the State”); Sanville v. McCaughtry, 266 F.3d 724,
734 (7th Cir. 2001) (recognizing that “the need for a mental illness to be treated could certainly
be considered a serious medical need”). The awareness of a serious mental illness triggers a duty
to provide adequate care. See Cavalieri v. Shepard, 321 F.3d 616, 621–22 (7th Cir. 2003); Hall
v. Ryan, 957 F.2d 402, 405–06 (7th Cir. 1992). Moreover, the Seventh Circuit has recently
recognized that not all cruel and unusual punishments in a prison setting involve the exertion of
force against the body. Thomas v. Illinois, 697 F.3d 612, 615 (7th Cir. 2012) (citing Washington
v. Hively, 695 F.3d 641, 643–44 (7th Cir. 2012)). Psychological pain exists. It is real and it
results from many of the symptoms which are associated with the mentally ill.
depression is not the blues. It is a mental illness; and health professionals, in particular
psychiatrists, not lawyers or judges, are the experts on it.” Wilder v. Chater, 64 F.3d 335, 337
(7th Cir. 1995) (emphasis in original).
Bridging into the realm where prisoner suicide has occurred or is attempted, the Seventh
Circuit has held that “prison officials violate the Eighth Amendment if they are cognizant of the
significant likelihood that an inmate may imminently seek to take his own life and then fail to
take reasonable steps to prevent the inmate from performing this act.” Sanville, 266 F.3d at 737
(internal quotation marks omitted).
From a practical standpoint, deliberate indifference is “proven by demonstrating that a
prison official knows of a substantial risk of harm to an inmate and ‘either acts or fails to act in
disregard of that risk.’” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal quotation
omitted). Gomez, a case in which there are parallels to both the evidence and the legal standards
to be employed here, contains the following analysis:
Here, the record demonstrates that the conditions of extreme social isolation and
reduced environmental stimulation found in the Pelican Bay SHU will likely
inflict some degree of psychological trauma upon most inmates confined there for
more than brief periods. Clearly, this impact is not to be trivialized; however, for
many inmates, it does not appear that the degree of mental injury suffered
significantly exceeds the kind of generalized psychological pain that courts have
found compatible with Eighth Amendment standards. While a risk of a more
serious injury is not non-existent, we are not persuaded, on the present record and
given all the circumstances, that the risk of developing an injury to mental health
of sufficiently serious magnitude due to current conditions in the SHU is high
enough for the SHU population as a whole, to find that current conditions in the
SHU are per se violative of the Eighth Amendment with respect to all potential
We can not, however, say the same for certain categories of inmates: those who
the record demonstrates are at a particularly high risk for suffering very serious or
severe injury to their mental health, including overt paranoia, psychotic breaks
with reality, or massive exacerbations of existing mental illness as a result of the
conditions in the SHU. Such inmates consist of the already mentally ill, as well
as persons with borderline personality disorders, brain damage or mental
retardation, impulse-ridden personalities, or a history of prior psychiatric
problems or chronic depression. For these inmates, placing them in the SHU is
the mental equivalent of putting an asthmatic in a place with little air to breathe.
The risk is high enough, and the consequences serious enough, that we have no
hesitancy in finding that the risk is plainly “unreasonable.” Helling, 509 U.S. at
37, 113 S. Ct. at 2481. Such inmates are not required to endure the horrific
suffering of a serious mental illness or major exacerbation of an existing mental
illness before obtaining relief. Id. at –––– – ––––, 113 S. Ct. at 2480–81.
We are acutely aware that defendants are entitled to substantial deference with
respect to their management of the SHU. However, subjecting individuals to
conditions that are “very likely” to render them psychotic or otherwise inflict a
serious mental illness or seriously exacerbate an existing mental illness can not be
squared with evolving standards of humanity or decency, especially when certain
aspects of those conditions appear to bear little relation to security concerns. A
risk this grave—this shocking and indecent—simply has no place in civilized
society. It is surely not one “today’s society [would] choose[ ] to tolerate.” Id. at
––––, 113 S. Ct. at 2482. Indeed, it is inconceivable that any representative
portion of our society would put its imprimatur on a plan to subject the mentally
ill and other inmates described above to the SHU, knowing that severe
psychological consequences will most probably befall those inmates. Thus, with
respect to this limited population of the inmate class, plaintiffs have established
that continued confinement in the SHU, as it is currently constituted, deprives
inmates of a minimal civilized level of one of life’s necessities.
Madrid v. Gomez, 889 F. Supp. 1146, 1265–66 (N.D. Cal. 1995) (footnote omitted).
Applying the standard just described, the Court finds that mentally ill prisoners within the
IDOC segregation units are not receiving minimally adequate mental health care in terms of
scope, intensity, and duration and the IDOC has been deliberately indifferent. Based on the facts
and law set forth in this Entry, therefore, it is the Court’s conclusion that the treatment of
mentally ill prisoners housed in IDOC segregation units and the New Castle Psychiatric Unit,
and the failure to provide adequate treatment for such prisoners, violates the Eighth
Amendment’s proscription against the imposition of cruel and unusual punishment.
Plaintiffs have met their burden in that respect and are entitled to prevail.
Once a constitutional violation is found, a federal court is required to tailor “the scope of
the remedy” to fit “the nature and extent of the constitutional violation.” Dayton Bd. of Educ. v.
Brinkman, 433 U.S. 406, 420 (1977). A prison that deprives prisoners of basic sustenance,
including adequate medical care, is incompatible with the concept of human dignity and has no
place in civilized society. Brown v. Plata, 131 S. Ct. 1910, 1928 (2011).
If government fails to fulfill this obligation, the courts have a responsibility to
remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U.S.
678, 687, n. 9, 98 S. Ct. 2565, 57 L.Ed.2d 522 (1978). Courts must be sensitive to
the State’s interest in punishment, deterrence, and rehabilitation, as well as the
need for deference to experienced and expert prison administrators faced with the
difficult and dangerous task of housing large numbers of convicted criminals. See
Bell v. Wolfish, 441 U.S. 520, 547–548, 99 S. Ct. 1861, 60 L.Ed.2d 447 (1979).
Courts nevertheless must not shrink from their obligation to “enforce the
constitutional rights of all ‘persons,’ including prisoners.” Cruz v. Beto, 405 U.S.
319, 321, 92 S. Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam). Courts may not
allow constitutional violations to continue simply because a remedy would
involve intrusion into the realm of prison administration.
Id. at 1928–29.
Having determined that a constitutional violation exists, the Court must now turn to the
remedy it should impose. The Plaintiffs seek equitable relief. The standards for a permanent
injunction are essentially the same as for a preliminary injunction, except that the plaintiff must
show actual success on the merits, not a likelihood of success, to obtain a permanent injunction.
See Univ. of Tex. v. Camenisch, 451 U.S. 390, 392 (1981). A party seeking a permanent
injunction must satisfy the following four factors before the district court may grant a permanent
injunction: 1) The existence of irreparable injury (including a continuing and imminent threat of
harm); 2) remedies at law are inadequate to compensate for that threat of harm; 3) whether the
balance of hardships between plaintiff and defendant tips in favor of a remedy in equity; and 4)
the public interest would not be disserved by a permanent injunction. Monsanto Co. v. Geertson
Seed Farms, 130 S. Ct. 2743, 2748 (2010) (citing eBay Inc. v. MercExchanges, L.L.C., 547 U.S.
388, 391 (2006)).
The relief to which the Plaintiffs are entitled is the delivery of mental health care which is
within the bounds of the Eighth Amendment. The remedy may be as complex as the evidence of
the violation, and Plata is again instructive, just as it was in addressing the merits of the Eighth
Amendment claim. The overlay of the Prison Litigation Reform Act (“PLRA”) on possible
remedial measures was addressed by Judge McKinney of this Court in Kress v. CCA of
Tennessee, No. 1:08-cv-00431-LJM-DML, 2011 WL 3154804, *2 (S.D. Ind. July 26, 2011),
aff’d., 694 F.3d 890 (7th Cir. 2012):
In Plata, it was undisputed that constitutional violations still existed in the prisons
at issue even though some remedial measures had been taken. 131 S. Ct. at 1935–
36. In addition, the Plata trial court took into account “current prison conditions”
in issuing its injunction requiring the State of California to remedy the
overcrowding, and the Supreme Court approved of this approach. Id. at 1935
(“The . . . court properly admitted evidence of current conditions as relevant to the
issues before it.”); see also id. at 1936 (“[T]he record and opinion make clear that
the decision . . . was based on current evidence pertaining to ongoing
constitutional violations.”). Contrary to Plaintiffs’ assertion, Plata does not stand
for the proposition that courts only may take into account conditions existing at
the time a lawsuit is filed in determining whether injunctive relief is appropriate.
Indeed, Plata confirms the PLRA’s requirement that injunctive relief be instituted
only as “necessary to correct a current and ongoing violation.” Id. at 1930–31
(citing 18 U.S.C. § 3626).
A federal court possesses broad powers to remedy constitutional violations, but these
powers are not boundless. The federal court must find that a constitutional violation exists. “[I]t
is important to remember that judicial powers may be exercised only on the basis of a
constitutional violation.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971).
When there is no continuing violation of federal law, injunctive relief is not part of a federal
court’s remedial powers. See Green v. Mansour, 474 U.S. 64, 71 (1985).
Accordingly, within 45 days, the Court will schedule a conference with counsel for the
parties to discuss and establish the appropriate development of a remedy. The parties may
consult Westhefer v. Snyder, Nos. 00-162-GPM, 00-708-GPM, 2012 WL 4904522 (S.D. Ill. Oct.
15, 2012), and the antecedent decisions in that case for ideas in formulating a remedial plan.
“Running a prison is an inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are peculiarly within the province of the
legislative and executive branches of government.” Turner v. Safley, 482 U.S. 78, 84–85 (1987).
Nonetheless, “prison walls do not form a barrier separating prison inmates from the protections
of the Constitution.” Id. at 84.
In the midst of a complex and tumultuous environment such as a prison, “[f]ederal courts
must take cognizance of the valid constitutional claims of prison inmates.” Babcock v. White,
102 F.3d 267, 275 (7th Cir. 1996) (quoting Turner, 482 U.S. at 84). That is precisely what the
Plaintiffs established at trial because “[a] prison that deprives prisoners of . . . adequate medical
care . . . is incompatible with the concept of human dignity . . . .” Brown v. Plata, 131 S. Ct.
1910, 1928 (2011) (internal quotation marks omitted). The Plaintiffs have prevailed as to their
Eighth Amendment claim. Appropriate further proceedings will be conducted as to the relief to
which the Plaintiffs are entitled and as to any ancillary matters.
For now, no partial final judgment shall issue at this time as to the claim resolved in this
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
David Ross Smith
INDIANA PROTECTION & ADVOCACY SERVICES
Gavin Minor Rose
ACLU OF INDIANA
Kenneth J. Falk
ACLU OF INDIANA
Thomas E. Crishon
INDIANA PROTECTION & ADVOCACY SERVICES
David A. Arthur
INDIANA OFFICE OF THE ATTORNEY GENERAL
Thomas D. Quigley
INDIANA OFFICE OF THE ATTORNEY GENERAL
Wade J. Hornbacher
INDIANA OFFICE OF THE ATTORNEY GENERAL
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?