IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION JERMAINE DOCKERY, ET AL. VS. PLAINTIFFS CIVIL ACTION NO. 3:13CV326WHB-JCG PELICIA HALL, ET AL. DEFENDANTS TRIAL TRANSCRIPT VOLUME 40 BEFORE THE HONORABLE WILLIAM H. BARBOUR, JR. UNITED STATES DISTRICT JUDGE APRIL 9, 2018 MORNING SESSION JACKSON, MISSISSIPPI REPORTED BY: CHERIE GALLASPY BOND Registered Merit Reporter Mississippi CSR #1012 __________________________________________________________ 501 E. Court Street, Ste. 2.500 Jackson, Mississippi 39201 (601) 608-4186 *** DAILY TRANSCRIPT *** 2 1 APPEARANCES 2 COUNSEL FOR PLAINTIFFS: 3 4 5 6 7 8 9 MR. MS. MS. MR. MS. MR. MS. MR. MS. MR. MS. MS. JODY E. OWENS ANNA Q. HAN ERIN MONJU CARL TAKEI ELISSA JOHNSON ERIC GORDON BALABAN GRETCHEN ANN HOFF VARNER RAVI DOSHI REKHA ELAINE ARULANANTHAM BENJAMIN R. SALK CHELSEA K. CAVENY SARAH D. BIDINGER 10 COUNSEL FOR DEFENDANTS: 11 12 13 14 MR. MR. MS. MR. MR. MS. MR. WILLIAM T. SILER, JR. NICHOLAS F. MORISANI MOLLY MITCHELL WALKER MICHAEL J. BENTLEY J. WILLIAM MANUEL KRISSY C. NOBILE HOWARD DAVID CLARK III 15 16 17 18 19 20 21 22 23 24 25 *** DAILY TRANSCRIPT *** 3 1 TABLE OF CONTENTS 2 3 Exhibit D-178 .....................................6 4 CLOSING ARGUMENTS: 5 Closing Argument by Ms. Johnson 6 Closing Argument by Ms. Monju ........................35 7 Closing Argument by Mr. Siler ........................56 8 Closing Argument by Mr. Bentley ......................82 9 Closing Argument by Ms. Johnson .....................100 .......................8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 *** DAILY TRANSCRIPT *** 4 1 2 (Court Called to Order) THE COURT: Good morning, ladies and gentlemen. We've 3 got lots of people in the courtroom this morning. 4 spectators are going to be disappointed, but we'll see what the 5 lawyers have to say. 6 We're here today for closing arguments. I suspect I gave both 7 sides an hour and a half for those closings. 8 plaintiffs want to split your arguments into two parts, 9 retaining time for rebuttal after the defendants' argument. 10 11 12 13 I assume that the Is that what you're planning? MS. JOHNSON: Yes, Your Honor. We would ask to reserve remaining time for rebuttal. THE COURT: Who's going to argue first, and who's 14 going to finish, and who's -- and how are you going to split 15 your time? 16 MS. JOHNSON: 17 between myself and Ms. Monju. 18 collective argument initially will be about an hour and 15 19 minutes, and we would reserve the remaining time for rebuttal. 20 21 THE COURT: Your Honor, the argument will be split I will be beginning. All right. Our Do you want a warning on your time, Ms. Johnson? 22 MS. JOHNSON: 23 THE COURT: 24 MS. JOHNSON: 25 THE COURT: Do you mean -- Are you going first? Yes, Your Honor. And how much of your hour and 15 minutes *** DAILY TRANSCRIPT *** 5 1 are you going to take? 2 MS. JOHNSON: 3 about 40 minutes, Your Honor. 4 THE COURT: 5 MS. JOHNSON: 6 I anticipate that my portion will be Do you want a warning at that time? Sure, Your Honor. Actually, I can keep up with the time. 7 THE COURT: All right. Any time that you use, 8 Ms. Monju -- the two of you can use the whole hour and a half 9 to begin with, but I'm just trying to see whether you want a 10 warning. 11 call you at any time? 12 13 14 15 16 Ms. Monju, what about your time? MS. MONJU: the time. Do you want me to Your Honor, I can also follow along with Thank you. THE COURT: And then what's the -- what -- how's the defense going to do your time? MR. SILER: Our intention is that I will handle half 17 the time, 45 minutes, and Mr. Bentley will handle 45 minutes. 18 I would like a warning at 35 minutes, Your Honor. 19 THE COURT: Thirty-five? 20 MR. SILER: Yes, sir. 21 THE COURT: All right. 22 MR. BENTLEY: 23 as well, Your Honor. And -- Thirty-five minutes would be good for me Thank you. 24 THE COURT: Okay. 25 MR. SILER: Your Honor, we've got one final matter. *** DAILY TRANSCRIPT *** 6 1 Exhibit D-178 was still remaining to be ruled upon. 2 parties have gotten together and agreed upon a redacted 3 version. 4 time we formally move for the admission of Exhibit D-178. 5 6 All right. Ms. Johnson, are you in agreement with that? MS. JOHNSON: Yes, Your Honor. We have no objection to the redacted version. 9 10 We have provided it to your deputy clerk, and at this THE COURT: 7 8 The THE COURT: D-178 will be received into evidence. (Exhibit D-178 marked) 11 THE COURT: 12 MR. BALABAN: Yes, sir. Good morning, Your Honor. 13 housekeeping matter from plaintiffs as well. 14 the plaintiffs. 15 There was one Eric Balaban for Your Honor, there was -- on April 5th the court 16 ordered that -- sustained the objection of defendants regarding 17 the rebuttal case and allowed the plaintiffs to produce offers 18 of proof from the experts who would have testified. 19 given those to Ms. Lewis to be entered into the record, and 20 we've provided a copy to the defendants. 21 they be entered into the record in this case. 22 23 THE COURT: All right. We've We simply ask that They may be offered into the record. 24 MR. BALABAN: Thank you, Your Honor. 25 MS. JOHNSON: Your Honor, the only other outstanding *** DAILY TRANSCRIPT *** 7 1 matter are deposition designations. 2 all of those to defendants, and defendant has reviewed most of 3 them. 4 ask the court if we could submit those to the court later this 5 week. 6 deadline. We're still waiting on some of those, and we would just And Mr. Morisani will be able to speak to maybe a 7 THE COURT: 8 MR. MORISANI: 9 this week. 10 possibly. 11 Plaintiffs have tendered Yes, sir. Yes, sir. We can submit it to them We can try to submit it to them this afternoon THE COURT: All right. I probably am not going to be 12 here midweek. 13 I'm going to take a little break. 14 We can keep the record open to accommodate that. 15 I have probably had enough of you people, and MS. JOHNSON: But we can figure that out. If it's acceptable to Your Honor, I'm 16 happy to give -- to bring Ms. Lewis hard copies of those 17 designations once they are complete. 18 THE COURT: 19 arguments at this time now? 20 All right. MS. JOHNSON: Are we ready for closing Your Honor, I have a hard copy of the 21 presentation that plaintiffs intend to use during closing. 22 Could I hand it to Your Honor? 23 24 25 THE COURT: Yes, ma'am. (Document Tendered to the Court) MS. JOHNSON: And can we turn on the gallery monitors? *** DAILY TRANSCRIPT *** 8 1 THE COURT: 2 Yes. Ms. Johnson, you may proceed. CLOSING ARGUMENT FOR THE PLAINTIFFS 3 MS. JOHNSON: Good morning, Your Honor. May it please 4 the court. 5 because MDOC has failed to provide basic care to the 1200 men 6 who are incarcerated at the East Mississippi Correctional 7 Facility. 8 those who are seriously mentally ill, at EMCF, then contracted 9 the daily operations to for-profit companies and abandoned its Your Honor, plaintiffs have brought this action MDOC chose to house its most vulnerable prisoners, 10 responsibility to ensure minimal constitutional requirements 11 are met. 12 violations to stand. 13 This court cannot allow these constitutional Throughout this trial, the court has heard testimony 14 from 19 prisoners, some of who have been at EMCF for years. 15 They have been housed at different pods -- on different pods at 16 different times, but their experience has been the same: 17 are not safe, the environmental conditions are dangerous, they 18 do not receive adequate medical and mental health care. 19 inaction puts them at substantial risk of serious harm. 20 They MDOC's As the Fifth Circuit noted in Gates v. Cook, the 21 constitution does not mandate comfortable prisons but neither 22 does it permit inhumane ones. 23 humane conditions of confinement. 24 receive adequate food, clothing, shelter, and medical care and 25 must take reasonable measures to ensure the safety of the Prison officials must provide They must ensure inmates *** DAILY TRANSCRIPT *** 9 1 inmates. 2 Before we proceed to discuss the evidence related to 3 each of plaintiffs' claims in this matter, Your Honor, I would 4 first like to discuss the applicable legal standard. 5 standard in this case is governed by the Supreme Court decision 6 Farmer v. Brennan, 511 U.S. 825. The 7 First, there is an objective component. 8 it, plaintiffs must show that prison officials' actions or 9 omissions have resulted in a substantial risk of serious harm. To satisfy 10 The relevant inquiry under Farmer is not actual harm, Your 11 Honor. 12 It is the risk of harm. Prisoners are entitled to release when a substantial 13 risk of harm is known and ignored by officials. 14 U.S. Supreme Court, Gates held that an Eighth Amendment 15 violation can be established by a combination of conditions of 16 confinement as long as they have a mutually enforcing effect 17 that produces a depravation of a single identifiable human need 18 such as safety. 19 In citing the Your Honor, the second component under Farmer is a 20 subjective component. 21 officials' state of mind in displayed deliberate indifference. 22 Your Honor, as you consider whether MDOC had the requisite 23 knowledge of the substantial risk of harm, it is a question of 24 fact that can be proven by inference through circumstantial 25 evidence. This component inquires into the prison For instance, the court can infer MDOC's knowledge *** DAILY TRANSCRIPT *** 10 1 of these conditions based on the documented number of assaults. 2 In addition, in deciding deliberate indifference, the court can 3 conclude that prison officials knew of the substantial risk of 4 harm because the very risk was obvious. 5 During the past five weeks, Your Honor has heard 6 substantial evidence from plaintiffs' experts as well as from 7 prison witnesses. 8 plaintiffs' witnesses. 9 agents and employees include admissions of MDOC's knowledge of The court does not need to solely rely on The testimony by defendant and its 10 deliberate indifference to the substantial risk of serious 11 harm. 12 MDOC believed that it should be absolved of 13 responsibility to the extent that these issues are created by 14 prisoners. 15 Lynaugh, 842 F.2d 759, that is not the applicable standard. 16 Defendant will tell you that these problems happen everywhere, 17 but at EMCF, over the course of several years, these problems 18 have remained and even worsened with no intervention from MDOC. 19 Throughout this case, defendant has criticized However, the Fifth Circuit noted in Beck v. 20 plaintiffs for what it has called a scattershot approach to 21 this case because of the multiple claims. 22 nothing that prohibits plaintiffs from bringing multiple claims 23 in a single suit. 24 unconstitutional conditions that exists at EMCF affect the 25 safety and well-being of the entire EMCF class. However, there is In here, the pervasive and systemic *** DAILY TRANSCRIPT *** 11 1 This court certified the class in 2015 and then denied 2 defendants' motion to decertify because this is the very type 3 of case for which classwide injunctive relief is appropriate. 4 Your Honor, during the past few weeks, plaintiffs have 5 addressed nearly every aspect of prison operations, and it has 6 been necessary to give the court an accurate picture of the 7 depth of the failures and dysfunction at EMCF that create the 8 risk to the class. 9 prison operations go directly to plaintiffs' seven claims. 10 Those details and components of day-to-day Your Honor, I'd like to move to discuss the individual 11 claims at issue related to the safety and security and the 12 evidence that plaintiffs have presented. 13 Ms. Monju will discuss the medical and mental health claims. 14 Following that, Plaintiffs claims in this case are: The protection 15 from harm, the excessive use of force, nutrition, environmental 16 and sanitation conditions, isolation, medical, and mental 17 health. 18 Your Honor, I'll begin by discussing protection from 19 harm. 20 created this visual to depict each of plaintiffs' claims and 21 help the court understand the underlying conditions that relate 22 to them. 23 support a systemic constitutional violation. 24 not need to find a constitutional violation of each of these 25 conditions individually to conclude plaintiffs have met their As Your Honor sees on the screen, plaintiffs have These conditions, taken alone or in combination, *** DAILY TRANSCRIPT *** The court does 12 1 burden on each claim. 2 Every prisoner at EMCF is subject to a substantial 3 risk of harm because of MDOC's failure to protect them. 4 is dangerous as evidenced by the daily realities: 5 gang members who control daily operations, weapons, officers 6 who fail to perform their basic job functions, and inadequate 7 staffing levels. 8 9 EMCF Assaults, Your Honor, at EMCF, the rate of assault is extremely high. They occur every day on every unit in hallways and 10 common areas. 11 and 2017 related to the rate of assaults at EMCF. 12 on the assaults data that Your Honor heard from defendants' 13 expert Mr. McGinnis, which was incomplete, the rate of assaults 14 at EMCF in 2016 was ten times higher than the rate of assaults 15 that plaintiffs' corrections experts saw in his system. 16 Shaw and defendants' experts agreed that you cannot detect all 17 assaults. 18 assaulted at EMCF is higher than these numbers. 19 Here Your Honor can see the statistics from 2016 Even relying Warden So the actual number of prisoners and staff who are More than the risk of harm, Your Honor, at EMCF, 20 MDOC's failure to protect has resulted in actual harm. 21 of prisoners have been stabbed, brutally beaten, and suffered 22 from broken bones. 23 24 25 Dozens Your Honor, next I'd like to talk about the control by gang members. The staff -- THE COURT: Doesn't -- don't assaults happen in every *** DAILY TRANSCRIPT *** 13 1 prison and particularly in prisons handling mental health 2 patients? 3 MS. JOHNSON: 4 THE COURT: Yes, Your Honor. You've got all these statistics, and I 5 don't know how to -- you went through lots of time explaining 6 and dividing up in what's an assault and what's not an assault 7 and all of the statistics. 8 9 Men confined in a jail are going to fight with each other. Those are assaults. If there are violent men in 10 prison, the guards are going to have to control them some way. 11 They are going have to use pepper spray or else they're going 12 to have to wrestle them to put shackles on them. 13 in every prison, good prisons, and bad prisons. 14 Those happen What is the difference in an assault for statistical 15 purposes and an assault which -- of some kind that is to be 16 expected in any prison? 17 two sides have been very sharp, and the plaintiffs seem to 18 claim that every time a prisoner has some kind of use of force, 19 whether it's violent -- that should not occur or whether it is 20 a matter of wrestling him and getting -- to put shackles on 21 him, where is the dividing line? 22 MS. JOHNSON: That's -- the differences between the Your Honor, just so -- assaults are when 23 prisoners may assault other prisons or staff members. 24 of force incidents that we've discussed are when staff members 25 use physical force or a chemical agent against a prisoner. *** DAILY TRANSCRIPT *** The use 14 1 And Your Honor is correct. Assaults do happen in 2 every prison, but what is important at EMCF is the high number 3 of assaults that have happened year after year and the failure 4 of MDOC and the staff at EMCF to take action in order to reduce 5 those, as we discussed based on staffing concerns that other 6 prisoners control day-to-day functions at EMCF. 7 substantial risk of harm to prisoners presented by these 8 assaults, and there has been no action by MDOC in order to 9 address that risk. 10 THE COURT: 11 MS. JOHNSON: There is a All right. Your Honor, the staff at EMCF have 12 abdicated their day-to-day functions to gang members and 13 prisoners. 14 documented serious concerns about gang members who are allowed 15 to run the segregation units. 16 units are considered what is called a sensitive work area. 17 Gang members should not even be allowed to work there, let 18 alone exert control over other prisoners. 19 An e-mail from the contract monitor, Ms. Thomas, Your Honor, the segregation Further, Ms. Thomas in 2015 sent three different 20 e-mails regarding specific prisoners that she noted had the 21 ability to control units throughout the prison. 22 three years later, Your Honor, during this trial, one of those 23 prisoners still remained on the same unit she had identified 24 where he exerted control. 25 THE COURT: And nearly The defendants are going to argue that *** DAILY TRANSCRIPT *** 15 1 that has changed substantially since you collected your 2 depositions and videos and that the violence is down 3 considerably and that the guards are doing a much better job. 4 Where's -- where's the dividing line? 5 MS. JOHNSON: Your Honor, the defendants have put 6 forward very little evidence to rebut the statistics and 7 evidence that plaintiffs have regarding the numbers and 8 practices at EMCF. 9 detail, this voluntary cessation that defendants may say or Further, as Ms. Monju will speak to in more 10 these improvements that they cite are insufficient to avoid a 11 liability finding and an Eighth Amendment violation because of 12 those conditions could reoccur. 13 14 15 THE COURT: Any instance can reoccur. That's kind of a statement without a whole lot of meaning. MS. JOHNSON: And, Your Honor, excuse me. Not the 16 specific incidents but the systemic violations and problems 17 related to violence as we're speaking about now. 18 THE COURT: 19 MS. JOHNSON: All right. In fact, Your Honor, as you may recall, 20 the control of gang members at EMCF remains such a critical 21 issue that Ms. Thomas felt she could not identify those gang 22 members in open court because she feared for her safety when 23 she returned to work. 24 prisoner that gangs control daily operations such as where 25 prisoners are housed and passing out food. You've heard testimony from nearly every *** DAILY TRANSCRIPT *** 16 1 Next, Your Honor, I'd like to discuss the weapons and 2 contraband at EMCF. 3 the measures that the facility has taken to interdict 4 contraband: 5 scanners at the front entry, a K-9 unit that's there's twice a 6 month. 7 at the facility's own data, Your Honor, the number -- the 8 amount of contraband remains extremely high. 9 You heard Warden Shaw talk at length about Putting up netting around the perimeter, adding But these additions were made in 2014, and if you look At some point, MDOC should have recognized that these 10 measures were woefully inadequate to address the risk of harm 11 and demanded further action. 12 contraband. 13 knives, hacksaw blades, marijuana, spice, and other drugs are 14 found frequently. 15 weapons and contraband that were found at EMCF in 2015, 2016 16 and 2017. 17 The prisoners remain awash in The facility documents show that cell phones, Here Your Honor can see statistics regarding And as Your Honor has heard testimony, we do agree 18 that not all contraband can be found. 19 EMCF are higher than even these reported statistics, and again 20 the risk of harm presented by this amount of contraband goes 21 directly to the injury to plaintiffs. 22 23 THE COURT: So the actual numbers at Your illustration there says that the 2017 contraband is down almost 15 percent from 15 and 16. 24 MS. JOHNSON: 25 THE COURT: Your Honor -- We've also heard what they've been doing. *** DAILY TRANSCRIPT *** 17 1 We've also heard from all of your expert -- experts on prisons 2 that there's nothing that can be done about contraband. 3 in every prison. 4 What's -- where does it get to be unconstitutional? 5 It's It's a matter of trying to control it. MS. JOHNSON: Well, Your Honor, just to point out, the 6 statistics from 2017 only include the first half of the year 7 because that's when discovery ended. 8 represent January through June. 9 10 11 THE COURT: So those statistics Well, that makes it about even then. All right. MS. JOHNSON: And, Your Honor, that while contraband 12 exists at every prison, these rates, as you've heard from 13 plaintiffs' experts, Mr. Vail, are extraordinarily high 14 compared to other prisons. 15 made -- they must be made to reduce contraband -- the efforts 16 that EMCF cites have been ineffective and yet they've done 17 nothing else to address the risk of harm. 18 And while efforts can and should be And, Your Honor, I just want to note that these 19 weapons figures do not even take into account the weapons of 20 opportunity such as mops and broomsticks that Your Honor saw 21 used during a March 2017 riot. 22 Your Honor, the next thing I would like to discuss is 23 the failure of officers to perform their most basic job 24 functions. 25 documents as well as testimony during this trial. This issues has been confirmed by EMCF's own *** DAILY TRANSCRIPT *** For 18 1 instance, one repeated issue documented by the contract 2 monitor, Ms. Thomas, is that officers failed to stay on their 3 assigned posts. 4 If officers are not where they are supposed to be, how 5 can they ensure that prisoners are not engaged in misconduct 6 and that prisoners are not being injured? 7 occasions, the contract monitor observed staff sitting around 8 and socializing instead of observing prisoners. 9 Honor, imagine that you need assistance and you're locked in a 10 On multiple And, Your cell and you're having a medical emergency. 11 Do you how Deputy Warden Hogans told you that you 12 would have to get a staff member's attention if you were in 13 your cell? 14 enough noises to get the picket officer's attention. 15 the same picket officer Your Honor saw that could be 30 to 16 40 yards away from a cell and through up to three locked steel 17 doors. He told this court that you would have to make 18 Defendants' expert, Tom -- 19 THE COURT: That's They're going to argue to me that that has 20 changed with the change of management at the prison, 21 specifically the new warden and that that should not have been 22 the way the prison was run and that it is much better now. 23 What do I believe? 24 change? 25 How do I give them credit for making some If I agree with you, which I do to a large extent, it *** DAILY TRANSCRIPT *** 19 1 was -- seems like in '16 and '17 the inmates were running the 2 prison with the old saw that you hear. 3 things either have changed or are changing. 4 does a judge in my position handle that situation? 5 MS. JOHNSON: But it appears that How do I -- how Well, Your Honor, I'd like to note that 6 Warden Shaw is far from new. 7 since December 2015. 8 having to make noise to get an officer's attention is not 9 something he described as a former practice, Your Honor. He's been back at the prison And Warden Hogans' representation about 10 That's a current practice. 11 get the attention of officers. 12 There is no way for prisoners to And as the court looks at the body of evidence, Your 13 Honor, the system of changes that plaintiffs have presented 14 evidence on cannot be changed in a week or a month. 15 issues that have persisted for years. 16 to the extent that the court has seen improvements, the court 17 can include those improvements and confirm that they will 18 continue in what it orders in the form of a remedy. 19 Honor, the case law is settled that defendant cannot escape 20 liability by making changes on the eve of trial in order -- in 21 an attempt to show that these conditions have been addressed. 22 These are And unless there are -- But, Your Your Honor, next I want to briefly talk about 23 defendants' expert, Tom Roth. 24 indirect supervision prison, but because of the routine 25 failures of staff that the court has heard about, the failure He identified EMCF as an *** DAILY TRANSCRIPT *** 20 1 of staff to remain on their posts, it virtually results in a 2 no-supervision prison. 3 You've heard testimony about the importance of 4 elementary security principles such as counts and security 5 checks. 6 contract monitor found the defendant in noncompliance with 7 being able to conduct counts. 8 time frame, Your Honor, the prison reduced its preservice 9 training on counts from an hour to 30 minutes. 10 11 And here, Your Honor, again for over two years the And yet during that very same They were not doing counts well, and then offered even less training on them. The court has also heard a lot of testimony about 12 locks in this case. 13 be able to securely place somebody in their cell and know that 14 they are going to stay there. 15 It's an important measure for officers to Defendants' lock expert, Mr. Stonehouse, testified 16 that he inspected locks on Units 1, 5 and 6, and the locks 17 appeared to be installed and maintained properly. 18 during his inspection, he found that some of the sliding doors 19 on 5 and 6 had been jammed by prisoners. 20 testified and told this court that prisoners at other 21 facilities also jam doors, but when plaintiffs' counsel 22 inquired and asked, "So how is it that at every other prison in 23 America doesn't have inmates just running wild all the time," 24 Mr. Stonehouse responded, "Their staff takes measures to 25 correct the problem." But even And, yes, he At EMCF, they do nothing. *** DAILY TRANSCRIPT *** 21 1 Your Honor, even more so, you've seen facility 2 documentation of routinely unsecured doors. 3 March 2017 riot where dozens of prisons were out of their cells 4 during an MDOC mandated facilitywide lockdown. 5 Hogans testified about that incident and that there was an 6 investigation, that investigation did not include how so many 7 prisoners were able to exit their cells. 8 9 You saw the And when Warden Your Honor, next I'd like to speak about the overall staffing problem at EMCF. Operating a prison requires enough 10 officers to perform the daily tasks. 11 not even have enough officers to fill the mandatory posts. 12 Your Honor has seen many examples like this shift roster on the 13 screen now. 14 mandatory position on this day that was vacant. 15 anomaly, Your Honor. 16 rosters in which mandatory posts are vacant. 17 On many days, EMCF does And each of the red highlighted places shows a This is not an This is an example of numerous shift In addition, as the court heard plaintiffs' expert, 18 Mr. Vail, testify, the staffing model at EMCF places officers 19 outside of the pods where they're unable to supervise and 20 directly interact with prisoners. 21 dangerousness of the prison. 22 harm to prisoners whereas you have seen there are instances 23 where staff are delayed or failed to respond to assaults that 24 happened in plain site. 25 THE COURT: This adds to the It creates a substantial risk of Is it the plaintiffs' position that there *** DAILY TRANSCRIPT *** 22 1 should be an officer or more than one officer inside the pods 2 at all times? 3 MS. JOHNSON: Yes, Your Honor. That was Mr. Vail's 4 recommendation that depending on the custody level, there may 5 need to be -- there should be at least one officer in the pods, 6 as is the practice at other prisons. 7 recall, defendants' own expert's only -- only comment as to why 8 that could not happen was that officers didn't have what he 9 called a work area in the pod. And as the court may Your Honor, that's something 10 defendants could easily create by putting an area in each pod 11 where officers could complete their paperwork and tend to their 12 other tasks while actively supervising prisoners. 13 THE COURT: It would -- I did not understand this from 14 any of the experts as to what proper staffing would actually 15 be. 16 way of direct information. 17 none of the experts argued with the fact that particularly 18 prisoners in Unit 5, the mentally disturbed, who need go to 19 medical or to mental health and so forth needed to be escorted 20 by guards, staff members, and that they needed to have two of 21 them take one person -- every one person down to another part 22 of the building. 23 There's lots of discussion about it but not much in the As I understand it, the expert -- Nobody was clear about whether those would be officers 24 on the floor of the pod or inside the locked doors. 25 pods -- each unit has four pods. The So that would take eight *** DAILY TRANSCRIPT *** 23 1 full-time officers all the time plus escort officers. 2 what the plaintiffs are recommending to the court that is 3 proper staffing? 4 5 MS. JOHNSON: Honor. Is that That's part of the staffing issue, Your And I think -- 6 THE COURT: That's not my question. I asked you a 7 direct question. 8 each unit in the place, or is it different for Unit 5 from the 9 other units? 10 11 MS. JOHNSON: It would vary, Your Honor, based on the classification, and that was Mr. Vail's recommendation. 12 13 Is that the minimum amount of staffing for THE COURT: Is two per pod in Unit 5 what the plaintiffs are arguing is minimum staffing? 14 MS. JOHNSON: Yes, Your Honor. But there would need 15 to be additional officers that might be referred to as utility 16 or escort officers so that prisoners can go to appointments and 17 to showers and recreation. 18 19 THE COURT: All right. officers on a four-pod unit plus escort officers. 20 MS. JOHNSON: 21 THE COURT: 22 officer. Yes, Your Honor. And, of course, the picket officers -- Is that correct? 23 MS. JOHNSON: 24 THE COURT: 25 So it's a minimum of eight Yes, Your Honor. And how many more people does that add to the shift -- the shift roster -- *** DAILY TRANSCRIPT *** 24 1 MS. JOHNSON: 2 THE COURT: 3 MS. JOHNSON: Your Honor, if you see -- -- for the whole prison? If you see on the right-hand side for 4 Unit 5, currently there are two officers assigned per pod, but 5 all of those posts are not filled, and the additional escort or 6 utility officers, that's not a mandatory post. 7 position may or may not be filled. 8 9 And so that The staffing that plaintiffs are suggesting are all mandatory. And as you might recall, Mr. Donald said you need 10 eight or nine staff members on Housing Unit 5 to be able to run 11 it during at least the day shifts. 12 THE COURT: All right. I'm trying to get a direct 13 answer as to what the plaintiffs say is an absolute minimum for 14 Unit 5 for staffing on any shift. 15 the third shift, I want that answer. 16 What is the minimum number of staff that should be on the day 17 shift or the first shift for Unit 5? 18 MS. JOHNSON: And if it can be less for But I'm not getting it. Two officers per pod plus additional 19 officers as floaters or escort officers and a picket officer. 20 And on the units that are less -- the classification is minimum 21 or medium, one officer per pod. 22 segregation needs more officers than the other units. 23 THE COURT: Housing Unit 5 because it has And this shift roster for November 1st of 24 2016 has how many -- how do I read this? 25 to find for the plaintiffs and grant injunctive relief, how How do I -- if I were *** DAILY TRANSCRIPT *** 25 1 would I go about trying to fill in the blanks here and order 2 that X number of employees should be in the prison for the 3 first shift of every shift? 4 MS. JOHNSON: Your Honor, the beginning of that 5 analysis would be that based on the custody level there should 6 be a certain number of officers per pod. 7 THE COURT: Custody level is going -- I said for the 8 whole first shift. 9 today, tomorrow, and the next day. The custody level is going to be the same They're going to be 10 different custody levels for different units in the prison, but 11 how do I add all of that up and say, "All right. 12 to be 20 employees in that building at all times, there need to 13 be 60, or there need to be 100 on the first shift"? 14 given me any information like that? 15 MS. JOHNSON: Yes, Your Honor. There needs Have you We believe that on 16 first shift based on the current population at EMCF, every 17 close custody unit zone pod would require two officers. 18 based on this shift roster, Your Honor, that would be all of 19 Housing Unit 5, Housing Unit 6 Delta and Housing Unit 3 20 Charlie. 21 And so Those would require two officers in the pods. For the other zones, Your Honor, there would need to 22 be at least one floor officer in each of the pods. 23 in addition to the supervisory staff. 24 number off the top my head, but that is a calculation that 25 plaintiffs could provide in our posttrial briefing. I don't -- I don't have a total *** DAILY TRANSCRIPT *** 26 1 THE COURT: I don't know how you expect me to produce 2 a number out of the blue if you haven't produced it to me. 3 That's what I'm asking. 4 kitchen. 5 You've got to have -- as well as other guards. 6 goes into it. 7 You've also got to have workers in the You've got to have the people teaching classes. MS. JOHNSON: It does, Your Honor. All of that And to be clear, 8 this shift roster reflects correctional officers, not teachers 9 or program staff that are calculated separately. 10 And, Your Honor, part of the staffing problem at EMCF 11 is that there's not enough staff. 12 are there, they're not used or deployed properly throughout the 13 prison in order to cover mandatory posts and ensure that these 14 basic functions are happening on a regular basis. 15 THE COURT: All right. And then even the staff who Well, I asked one of the 16 expert witnesses did he find anything right about the prison, 17 and he never did answer that question because he had lots of 18 prongs. 19 constitutional to -- unconstitutional to constitutional, are 20 y'all going to give me a plan -- If I'm going to produce a -- something that moves from 21 MS. JOHNSON: 22 THE COURT: Your Honor, that's -- -- so that I can compare it with what's 23 there, or are you just going to say, "Well, there needs to be 24 two on the floor"? 25 MS. JOHNSON: Well, Your Honor, that was a *** DAILY TRANSCRIPT *** 27 1 recommendation by plaintiffs' expert. 2 the remedies the court can order is a proper staffing analysis 3 that would give the court that number from a subject matter 4 expert. 5 THE COURT: But in addition, one of So the answer is you are not going to give 6 me a specific number. 7 MS. JOHNSON: 8 related to the housing units. 9 THE COURT: Your Honor, the number I've given You can do whatever you wish. I'm just 10 telling you that -- what would be helpful to me, and you 11 apparently are not going to do that, but go ahead. 12 with your argument. 13 Go ahead Excuse me for interrupting you. MS. JOHNSON: Your Honor, related to the staffing 14 issue, I think the housing unit staffing is a place where 15 plaintiffs have provided the specific recommendation of at 16 least one officer in each pod. 17 could provide -- 18 THE COURT: And beyond that, plaintiffs Don't repeat that to me. I've heard that 19 about four times now, and I've asked you a specific question 20 about total number of employees that need to be there, and you 21 are not prepared to answer that. 22 argument somewhere else. 23 MS. JOHNSON: So go ahead with your Thank you, Your Honor. Your Honor, the 24 issues that have been discussed related to plaintiffs' 25 protection from harm claim and MDOC's failure to respond to *** DAILY TRANSCRIPT *** 28 1 them demonstrated deliberate indifference by MDOC over the past 2 several years despite its knowledge of the risk of harm to the 3 prisoners at EMCF. 4 areas -- has identified these issues but nothing has been done 5 to address them. 6 7 8 9 10 11 The contract monitor has addressed those Next, Your Honor, I'd like to discuss plaintiffs' use of force claim. THE COURT: I believe you've got about five minutes left, but I'm -- I don't know that I made correct notes on when you started. MS. JOHNSON: That's about right, Your Honor. I will 12 be moving quickly through the rest of the claims. 13 as plaintiffs have presented evidence related to the use of 14 force, one of the key problems is staffs' failure to comply 15 with MDOC policy. 16 avoidable and unnecessary use of force at EMCF, the prison that 17 houses most severely mentally ill prisoners. 18 Your Honor, There's both unavoidable -- there's One of the critical aspects of use of force, Your 19 Honor, must be deescalation. 20 heard testimony, that mental health staff should come during a 21 planned use of force and attempt to speak to the prisoner. 22 Your Honor has heard from the warden and from Christopher 23 Dykes, that has not always happened. 24 25 And it means, as the court has As Mental health counselors make a determination as to whether or not a prisoner is suffering from mental health *** DAILY TRANSCRIPT *** 29 1 systems without ever laying eyes on them in many cases. 2 Your Honor heard mental health counselor Pickering testify, 3 prisoners can deteriorate and decompensate while in 4 segregation, even those that don't have preexisting mental 5 health conditions, which is why deescalation is so critical in 6 use of force. 7 THE COURT: 8 confinement is never proper? 9 And as Is the plaintiffs' position that solitary MS. JOHNSON: That has not been our position, Your 10 Honor. 11 severe harmful effects and that it's un- -- it should be used 12 for a very limited amount of time. 13 lengthy periods of time -- Your Honor, at EMCF it's used for 14 months and even years -- that there should be units such as 15 Dr. Kupers discussed that are restrictive to meet the security 16 needs but also allow an environment where prisoners are not 17 subject to such severe isolation. 18 Our position related to isolation is that it does have And if it is needed for Additionally, Your Honor, the practice across the 19 country has been to move toward a trend where prisoners with 20 severe mental illness are categorically excluded from solitary 21 confinement. 22 and defendants' experts Ken McGinnis also agreed that seriously 23 mentally ill prisoners should not be housed in segregation 24 units like Unit 5 at EMCF. 25 other systems because -- You heard plaintiffs' experts testify about that And this trend is happening in many *** DAILY TRANSCRIPT *** 30 1 THE COURT: For more than 30 days or less -- one of 2 the experts agreed that there's got to be a use of solitary 3 confinement for mental health people for some period of time. 4 I think he said a maximum -- he finally agreed to a maximum of 5 either 20 or 30 days. 6 I have forgotten which. I never understood how you were going to work a 7 severely mentally deranged prisoner down enough in a relatively 8 short period of time to let him out of solitary. 9 clear to me, and I still don't know what the argument of It was not 10 plaintiffs is as to whether there needs to be -- whether you 11 recognized that the prison has to have some solitary 12 confinement for -- particularly for these severely mentally 13 affected prisoners, or do you take them out after X number of 14 days if you're going to have it, and then what do you do with 15 them? 16 controlled, that are dangerous, as opposed to some that 17 probably everyone would agree that take them out after a 18 certain period of time and tell them to behave themselves and 19 if they don't -- you have to have some way to punish them and 20 you put them back in? 21 MS. JOHNSON: How do you control the ones that simply have to be What's the solution? Well, Your Honor, prisoners who are 22 severe -- seriously mentally ill, the consensus is they should 23 not be placed in solitary confinement but they can be placed in 24 other restrictive housing which would allow the security 25 measures that Your Honor is referencing as necessary for safety *** DAILY TRANSCRIPT *** 31 1 but would ensure that there's programming and treatment and 2 services so that they don't further decompensate. 3 As Your Honor has heard, prisoners who are in solitary 4 experience severe consequences such as paranoia, self-injurious 5 behavior such as cutting, and those symptoms are worsened in 6 solitary. 7 THE COURT: Yes, ma'am. There are all kinds of horror 8 stories. 9 facilities that people pay a lot of money for where the But there are all kinds of horror stories in private 10 people -- the patients are getting what you would classify as 11 supposedly much better care than they are in this prison or any 12 other prisons, for that matter. 13 these people? 14 15 You can't just turn them loose on the street. MS. JOHNSON: treatment, Your Honor. 16 Where -- how do you handle THE COURT: You provide programs and services and And that's what -- It doesn't work in many cases. 17 and treatment and services do not work. 18 be able to house them in humane conditions. 19 find the line, and I don't know how to find it. 20 I'm asking you. 21 MS. JOHNSON: Programs You've got to simply And I'm trying to That's what Part of those humane conditions would 22 include opportunities for interaction as appropriate, Your 23 Honor. 24 in corrections -- 25 There are restrictive housing settings THE COURT: Is an hour in the cage by himself outside *** DAILY TRANSCRIPT *** 32 1 of his cell every day adequate? Is an hour and a half? 2 two hours? How do you gage what's going 3 on in somebody's mind, particularly if they have severe mental 4 illness? 5 Is it half the day? Is it Where -- that's to be done? MS. JOHNSON: Your Honor, many systems because of the 6 need for an individual determination have a robust assessment 7 before prisoners are placed in segregation and assess them 8 throughout their time in segregation. 9 EMCF that doesn't happen. And so, Your Honor, at And so if a prisoner is placed in 10 segregation, there should be a comprehensive assessment, and 11 they should be monitored and checked by the appropriate mental 12 health and security staff to determine whether they've 13 exhibited and can be released from solitary or whether what 14 additional services may be needed to ensure that they're -- 15 THE COURT: Where does the state of Mississippi find 16 enough competent psychiatrists who are willing to come to a 17 rural area outside of a relatively small Mississippi town to 18 man a facility like this? 19 MS. JOHNSON: Well, Your Honor, the department has 20 designated EMCF to be the prison, and it could change that 21 designation if it thought that a prison, per se, closer to 22 Jackson, such as the one in Rankin County, would be better able 23 to staff and provide adequate mental health services. 24 cannot hide behind and fail to provide those services simply 25 based on the location of the prison. It It has to make -- it has *** DAILY TRANSCRIPT *** 33 1 to take steps. 2 THE COURT: But suppose competent mental health 3 people, psychiatrists particularly, counselors of high quality, 4 nurses of high quality, we have problems throughout the state 5 in private facilities finding adequate doctors and nurses to 6 staff. How does the state do this as a practical matter -- 7 MS. JOHNSON: 8 THE COURT: 9 10 11 Your Honor, as a practical -- -- to get to the quality that you would like to have which is arguably more than constitutional requirements? MS. JOHNSON: Your Honor, states across the country 12 engage in recruiting practices, other incentives to maintain a 13 work force. 14 basic care based on the work force. 15 the necessary measures and by its contractor ensuring that 16 those positions are staffed and if not making the necessary 17 adjustments to ensure that it can provide basic care. There is no constitutional exception to providing 18 THE COURT: 19 MS. JOHNSON: All right. MDOC would have to take I think you've used your time. I have, Your Honor. If I could just 20 briefly close on the safety and security issues. 21 in total, plaintiffs' safety and security issues include our 22 claims regarding protection from harm, excessive use of force, 23 nutrition, sanitary environment, as well as solitary 24 confinement. 25 deliberate indifference as it relates to these issues. Your Honor, As I've discussed, Your Honor, MDOC demonstrated *** DAILY TRANSCRIPT *** They've 34 1 been well documented for years and passed up the MDOC chain of 2 command. 3 and regional facilities, acknowledged that he's responsible for 4 the safety and security operations at the private prison such 5 as EMCF. 6 he's done nothing with this information. 7 For instance, Tony Compton, the director of private And at least as relates to counts, he admitted that Your Honor also heard from Jerry Williams, a named 8 defendant who's the deputy commissioner of institutions, who 9 had testified that problems should not go unfixed week after 10 weak or month after month as has been the case at EMCF. 11 THE COURT: 12 better leave her some time. 13 If you want Ms. Monju to testify, you had MS. JOHNSON: Not testify; to argue. Your Honor, I would just assert that the 14 commissioner has also been aware of these issues. 15 litigation has existed since she has been in office, and MDOC 16 has acted with deliberate indifference to plaintiffs' safety 17 and security claims. The 18 And I will turn the rest of my time to Ms. Monju. 19 THE COURT: 20 Thank you. Ms. Monju, can we agree with how much she has left you? 21 MS. MONJU: Yes, Your Honor, we'll check that. We 22 have 45 minutes remaining, Your Honor, out of the hour and a 23 half. 24 appreciated. 25 If I could have a warning at 35 minutes, that would be THE COURT: All right. *** DAILY TRANSCRIPT *** 35 1 CONTINUED CLOSING ARGUMENT FOR THE PLAINTIFFS 2 MS. MONJU: 3 4 Good morning, Your Honor, and may it please the court. I'll be speaking about plaintiffs' final two claims 5 regarding medical and mental health care at EMCF. 6 doing this in a fairly summary form so if there is anything I 7 can elaborate on for Your Honor, please just let me know. 8 9 I'll be With respect to plaintiffs' medical claim, plaintiffs seeks relief on behalf of the entire EMCF class. The standard 10 is the same for plaintiffs' medical claims as it is for 11 plaintiffs' other claims. 12 Amendment when they are deliberately indifferent to a 13 prisoner's substantial risk of serious harm. 14 deliberate indifference to serious medical needs. 15 Prison officials violate the Eighth That includes Plaintiffs have provided overwhelming evidence that 16 satisfies this standard. 17 Dr. Marc Stern and Madeleine LaMarre, testified that the 18 medical system at EMCF is broken. 19 substantial testimony from prisoners that they are routinely 20 denied access to medical care. 21 For example, plaintiffs' experts, Plaintiffs also presented But you needn't take their word for it. Plaintiffs 22 have introduced hundreds of defendants' own documents 23 corroborating this testimony. 24 continuous quality improvement, or CQI, reports, tracking 25 failings in care. For example, plaintiff submitted They've submitted medical records and *** DAILY TRANSCRIPT *** 36 1 internal audits all showing that care at EMCF fails again and 2 again. 3 All of this testimony and all of these documents show 4 that deficiencies in medical care at EMCF are longstanding, 5 pervasive, and obvious and that they are well known to MDOC. 6 Before I discuss those specific deficiencies, Your 7 Honor, I would be remiss to ignore defendants' response to this 8 evidence. 9 respond to plaintiffs' allegations regarding the adequacy of 10 Defendants did not designate a single expert to medical care at EMCF. They did not submit a single document. 11 Instead, defendants' solely called their new 12 physician, Dr. Patrick Arnold, to testify about care at EMCF. 13 But Dr. Arnold admitted that he has no idea what care was like 14 at EMCF prior to August 2017. 15 supervise nurses who provide the vast majority of care at EMCF. 16 And he admitted that he knows so little about the conditions at 17 EMCF that he's never even been to the housing units which are 18 quite literally down the hall from his office. 19 simply not a rebuttal to plaintiffs' evidence. 20 He admitted that he doesn't Dr. Arnold is I'll now discuss the sum of the systemic deficiencies 21 in the medical care at EMCF. 22 prisoners timely access to episodic or nonurgent care. 23 Honor learned, prisoners access episodic care through something 24 called a sick call request form. 25 be accessible and confidential, but at EMCF they are neither. Your Honor, first, MDOC denies As Your These forms are supposed to *** DAILY TRANSCRIPT *** 37 1 MDOC's own contract monitor reports reflect that as a 2 general matter sick call forms are not available on all the 3 housing units. 4 drop off their sick call request forms in the locked boxes 5 confidentially because those boxes are behind a locked door. 6 Prisoners have to give those forms to guards, destroying 7 confidentiality and making it more likely that prisoners won't 8 report their serious medical needs and won't get care. 9 And as Your Honor saw at EMCF, prisoners cannot After sick call forms are placed in the box, they are 10 supposed to be triaged within 24 hours. 11 prisoners have serious medical needs, they need to be seen 12 quickly. 13 happening. 14 That's because if But, again, MDOC's own documents show this isn't Once prisoner sick call requests are triaged, they are 15 supposed to be referred to a doctor or nurse practitioner for 16 more serious concerns and seen within seven days. 17 MDOC's own documents show this isn't happening. 18 Again, In fact, the sick call process is so broken at EMCF 19 that despite the fact that there was a very brief improvement 20 in patients' abilities to see the doctor at EMCF, that 21 improvement had disappeared by the time of trial. 22 THE COURT: What are you recommending? I assume that 23 if somebody is attacked and beat up and is bleeding or has a 24 severe knife wound or something like that, that needs emergency 25 care. And I assume -- I would agree with you. *** DAILY TRANSCRIPT *** It does and it 38 1 should be available on a reasonably prompt basis. 2 for my family to get to see -- get an appointment with a doctor 3 that we can and do pay for, there's no problem with that at 4 all, and we think that they are the best we can find, it 5 sometimes takes days or weeks to get an appointment with 6 somebody. 7 get an appointment usually with the doctor that we would like 8 on an emergency basis. I know that Hopefully we can get an appointment, but we can't We have to use the emergency room. 9 What should happen in the prison? 10 the doctor seeing the patient the next day on a non 11 life-threatening situation, even though he's uncomfortable or 12 has a headache or has even a wound that's not an emergency 13 situation? 14 prison? 15 What's wrong with What's the correct quality of medical care in a MS. MONJU: So, for example, Your Honor, when we talk 16 about episodic care, it actually includes life-threatening 17 situations as well. 18 serious chest pains and histories of heart disease have had to 19 submit sick call request forms, and that's the only way they 20 can get to the doctor. 21 For example, prisoners who have had But if a nurse doesn't look at those forms within 24 22 hours like they're required to do by MDOC policy, frankly, Your 23 Honor, there's a chance that patients could die. 24 serious concerns, patients -- still with quite serious concerns 25 for patients who have to see the doctor, they're not seeing the *** DAILY TRANSCRIPT *** Even for less 39 1 doctor the next day. 2 They're not seeing him the next week. MDOC's chief medical officer, Dr. Perry, testified 3 there's still a backlog of sick call requests forms for 4 doctors. 5 see a doctor for a headache. 6 with life-threaten conditions that aren't openly bleeding are 7 taking days, weeks, and sometimes years to see a doctor. 8 so we would just -- 9 THE COURT: So this isn't a case where it's taking a few days to This is a case where patients And And I heard numerous instances where 10 prisoners were taken to the closest emergency room available 11 for emergency care. 12 about whether they went in an ambulance or in a van, but they 13 got to an emergency -- their emergency needs seemed to be taken 14 care of. 15 medical records that have to be produced by somebody. 16 Somebody's taking time to see the people. 17 balance here? 18 constitutional? 19 And either -- and there was a lot of to-do What are you -- I have seen you introduce reams of What's the correct What's constitutional or what's not MS. MONJU: Absolutely, Your Honor. I would make two 20 points. 21 this trial, MDOC and EMCF write a lot down. 22 CQI reports. 23 write down clinical visits and medical records. 24 are not getting is results. 25 the problems that are appearing in these records, and that's The first is that I think as you've seen throughout They write down They write down contract monitor reports. They But what they They're not responding to any of *** DAILY TRANSCRIPT *** 40 1 2 where plaintiffs' concern is. So, for example, Your Honor said that people are 3 getting care, and we're not denying that they are. 4 think if a prisoner is stabbed and they're openly bleeding, 5 sometimes they go to the emergency room. 6 constitutional for prisoners to be subject to a game of luck 7 about whether they're going get medical care. 8 9 10 11 THE COURT: I mean, I But it's simply not You've introduced proof, I believe, of only one death in four or five years worth of evidence presented in this case. MS. MONJU: Oh, no, your Honor. There was one 12 suicide, but there have been many, many deaths. 13 about one where prisoners weren't able to get guards' 14 attention. 15 guards' attention because a man was unconscious on the floor in 16 his own urine and feces, and guards ignored them for hours, and 17 he died later that day. 18 I can talk They were banging on their cells trying to get You heard testimony about guards walking past a 19 prisoner who was choking. 20 deaths at EMCF in this year alone, and that's with the court 21 watching conditions at EMCF. 22 there are deaths in Dr. Stern's and -- Dr. Stern's report where 23 he says he can't definitively say that EMCF caused the 24 prisoners' death -- he wasn't there -- but he said that EMCF 25 deprived the prisoners of every chance they had at life. He died. There have been five There are many, many deaths, and *** DAILY TRANSCRIPT *** 41 1 And those are the problems plaintiffs complain of, 2 Your Honor. 3 constitutional that prisoners are subject to a game of luck of 4 whether they will live or die at EMCF. 5 It's simply not fair. THE COURT: It's simply not Has medical care improved with the setting 6 up of the infirmary or medical clinic or whatever we're calling 7 the new unit that has been organized within the last year? 8 9 MS. JOHNSON: Right, your Honor. So that's Housing Units 7, and it's what defendants call their acute care unit. 10 So a couple of points to make about that. 11 nothing to do with medical care. 12 provided there. 13 of medical care. 14 established 19 days before trial, 19 days. 15 existence. First, it has There's no medical care It's had no impact whatsoever on the quality It's a mental health unit. It was It's barely even in It's only treated -- 16 THE COURT: You'd rather have it than not have it. 17 MS. MONJU: Absolutely, Your Honor. 18 not denying that. 19 load of over 1,000 with serious -- 20 But it's treated five patients out of a case THE COURT: 21 doctor testify. 22 came on. Plaintiffs are Has medical care improvement? We had the He didn't even have a doctor on site until he I've forgotten when -- what day. 23 MS. MONJU: August 2017, Your Honor. 24 THE COURT: You certainly would agree that that is an 25 improvement. *** DAILY TRANSCRIPT *** 42 1 MS. MONJU: Your Honor, we would much prefer to have a 2 doctor on staff than to not have a doctor on staff. 3 Dr. Arnold himself testified, he does not oversee the vast 4 majority of care at EMCF. 5 several deficiencies in care, including nursing -- nurses 6 practicing outside of the scope of their licensure, nurses 7 ignoring significant evidence that plaintiffs who had 8 life-threatening conditions in treating them inappropriately, 9 several problems with nurses that Dr. Arnold simply has nothing 10 But as Plaintiffs' experts have identified to do with. 11 Just as an example, MDOC policy requires that a doctor 12 or nurse practitioner conduct rounds in the medical unit. 13 That's where the most ill patients are. 14 himself he doesn't do it. 15 ill patients, and he leaves that to nurses who frankly, 16 Ms. LaMarre said, were extremely poor. 17 THE COURT: The doctor said He doesn't treat EMCF's most acutely Medical care, at least in my family's 18 experience in the last few years, is that you rarely see an 19 M.D. before you see a nurse practitioner. 20 you never get to the doctor. 21 MS. MONJU: And I think that supports our point, Your 23 THE COURT: Is that not the way this system is run? 24 MS. MONJU: That is the way the system is run, and 22 25 And a lot of times Honor. that's not plaintiffs' complaint. Not every prisoner needs to *** DAILY TRANSCRIPT *** 43 1 see a doctor. 2 doing their jobs, and it's putting patients at risk. The problem is the nurses they are seeing aren't 3 And, Your Honor, a really simple way to improve a lot 4 of conditions at EMCF with respect to medical care would be to 5 first, as you and I have discussed, there aren't enough staff 6 there, and MDOC frankly has no idea how many staff they need at 7 EMCF. 8 9 They've never done a staffing analysis. Second, there are prey good policies in place of EMCF. Nurse LaMarre would charge a few of them, but they're pretty 10 good. 11 following those policies. 12 staff at MDOC were adequately staffed and if they followed 13 those policies. 14 And I think a huge issue is that the staff simply aren't THE COURT: Care would improve quite a bit if What is a judge in a case like this 15 supposed to do? 16 contractor to put "X" number of doctors on staff? 17 Tell the state of Mississippi and the medical MS. MONJU: So, Your Honor, we have actually proposed, 18 I think, numbers that would make a lot of sense because they 19 come directly from MDOC's health care vendor, Centurion. 20 can you see on this chart, Centurion proposed a staffing plan 21 in 2015 that MDOC rejected. 22 staffing in that plan. 23 start. As MDOC slashed the amount of We think this would be a great place to 24 But, frankly, Your Honor, what EMCF really needs is an 25 expert to assess the needs of the facility and to tell MDOC how *** DAILY TRANSCRIPT *** 44 1 many staff they need there, and that is certainly something 2 that's within Your Honor's power to order. 3 THE COURT: All right. 4 MS. MONJU: I'll just keep talking about a couple of Thank you. 5 failings in access to care at EMCF. 6 expert, Ms. LaMarre, found patients with chronic disease likes 7 diabetes, asthma, and heart disease that weren't getting 8 chronic care. 9 escorted to appointments because there are too few security As an example, plaintiffs' They are also problems with patients not being 10 staff to bring them. 11 understaffing, patients aren't getting the care they need. 12 And because of this security I can also talk about the medication administration 13 problems you've heard of. 14 medical officer says pill call needs to happen within the same 15 hour and a half window every single day because prisoners are 16 getting medications that they have to receive at the same time. 17 But as Your Honor heard from prisoners and have seen in medical 18 records, because there's such shot staffing at EMCF, nurses can 19 only get pill call done at 9 a.m., noon, 3 a.m., 2 a.m. 20 all over the map. 21 all. 22 It's called pill call. MDOC's chief It's And that's only when pill call occurs at You heard from Warden Shaw directly that sometime pill 23 call just doesn't happen. 24 venerable and mental healthy ill, the sickest prisoners in the 25 state of Mississippi, aren't getting their medications and Your That means prisoners who are *** DAILY TRANSCRIPT *** 45 1 Honor can see the results of that. 2 violent, they are no getting better, and it puts all prisoners 3 at risk. 4 Prisoners are sick, they're You also received testimony about the fact that 5 medication administration is so broken at EMCF that there are 6 medications called stat and now medications. 7 testified these are medications like nitroglycerine that need 8 to be administered within minutes or even seconds. 9 Honor can see on this chart, EMCF can't manage to get these 10 11 medications to prisoners within 24 hours. Dr. Stern But as Your That's outrageous. And, Your Honor, the problems with medication 12 administration at EMCF were evident on that witness stand. 13 Mr. Merlin Hill testified that EMCF was not giving him his 14 medications for his fatal seizure disorder and as a result he 15 was racked with tremors while he was testifying. 16 medication administration is so bad at EMCF that they couldn't 17 prevent Merlin Hill from tremoring in front of Your Honor while 18 he was testifying. 19 Your Honor, Mr. Merlin Hill is not unique in a population nearly 20 all of whom are on medication. 21 EMCF, and MDOC has provided no rebuttal to it. This is a massive problem at 22 Those are some of the most glaring deficiencies in 23 medical care, Your Honor, but I will also briefly summarize 24 that you've heard the medical record system is poorly designed 25 and it's difficult to use and it results in inaccurate records *** DAILY TRANSCRIPT *** 46 1 2 that endanger patient care. You've also heard that EMCF lacks adequate clinic 3 space, equipment and supplies, and you've heard that EMCF's 4 dental care is deficient as are its transfer screening where 5 it's supposed to catch all of the diseases prisoners have when 6 they come in the door so they get adequate treatment, and MDOC 7 has provided no evidence to rebut those deficiencies. 8 9 Your Honor, as I've discussed, a common thread through all of this is that there just isn't sufficient staffing at 10 EMCF to get the job done. 11 It's why they're not seeing the doctor in time. 12 they're not getting the care they need. 13 these deficiencies that I've just discussed are subjecting 14 prisoners to a substantial risk of serious harm. 15 aware that much risk for years, and it's done nothing. 16 17 It's why pill call doesn't happen. It's why And a result, all of MDOC has been If Your Honor doesn't have any more questions about medical care, I can move on to mental health care. 18 THE COURT: Thank you. 19 MS. MONJU: Your Honor, with respect to plaintiffs' 20 mental health claim, plaintiffs bring that on behalf of the 21 mental health subclass. 22 who have or may have mental illnesses. 23 held in Gates v. Cook, mental health issues are just as serious 24 as physical ones. 25 Eighth Amendment if they are deliberately indifferent to Those are all the prisoners at EMCF As the Fifth Circuit Therefore, prisons officials violate the *** DAILY TRANSCRIPT *** 47 1 2 prisoners' mental health needs. As Your Honor learned during trial, MDOC has placed 3 over 1,000 prisoners with mental illnesses at EMCF. 4 Dr. Bruce Gage, plaintiffs' expert, has testified that MDOC has 5 housed those prisoners at EMCF but it's failed to provide them 6 with even basic medical -- mental health care for their 7 illnesses. 8 9 But Dr. Bruce Gage's testimony is supported by MDOC's own CQI records, internal audits, and medical records, all 10 substantiating that patients at EMCF are not getting the mental 11 health care they need. 12 Again, as with medical, defendant has done so little 13 to rebut plaintiffs' overwhelming evidence that many of 14 plaintiffs' allegations remain entirely unrebutted. 15 example, MDOC again designated no mental health expert to 16 discuss care at EMCF. 17 it's own statewide mental health director to discuss mental 18 health care at EMCF. 19 submitted a single page from a single medical record regarding 20 a single encounter with a psychiatrist who is no longer on 21 staff at EMCF. 22 For MDOC couldn't even be bothered to call And as far as documents go, defendant I'll talk about several of the deficiencies in mental 23 health care at EMCF now. 24 don't receive adequate treatment planing, if they receive 25 treatment planning at all. First, Your Honor, prisoners at EMCF As Your Honor learned during trial, *** DAILY TRANSCRIPT *** 48 1 mental health treatment plans are fundamental to patient care 2 because these are the road maps mental health care providers 3 use to provide care to patients. 4 that significant improvements are needed at EMCF with respect 5 to treatment plans. 6 But MDOC's own documents show For example, an internal audit in December 2017 of 7 mental health care at EMCF found that 40 percent of patients at 8 EMCF, based on sampled records, did not have treatment plans. 9 And of the treatment plans that existed, 50 percent didn't have 10 11 crucial information for patient care. MDOC's entire response to this is to ask Nurse Dunn 12 if, in fact, patients do have treatment plans. 13 Nurse Dunn said yes, but her response simply isn't credible, 14 when MDOC's own internal documents show that a vast number of 15 prisoners at EMCF do not have treatment plans. 16 Unsurprisingly, EMCF staff also failed to provide timely, meaningful, 17 and confidential mental health theory to prisoners. 18 health therapy is woefully inadequate at EMCF. 19 testified that he found no evidence of individual therapy at 20 EMCF and minimal evidence of group therapy, despite the fact 21 that MDOC policies and Centurion policies require individual 22 and group therapy. 23 THE COURT: Mental Dr. Gage I thought some of the nurse practitioners 24 in the mental health unit were providing at least some therapy 25 to the prisoners. Do you disagree with that? *** DAILY TRANSCRIPT *** 49 1 MS. MONJU: So there is very minimal therapy offered 2 to some prisoners erratically. 3 when and why, but MDOC's own records cite significant 4 shortcomings in mental health care which go back to a lack of 5 staffing, inadequate staff training, and a lack of proper 6 policies requiring that care. 7 It's hard to say who gets it So, for example, I can talk about the residential 8 treatment unit at EMCF. 9 where the most seriously ill mental health patients at EMCF are 10 This is housing Unit 3. And it's supposed to be housed. 11 But as Your Honor can see from a December 2017 audit 12 of mental health care at EMCF, the residential treatment unit 13 is a residential treatment unit in name only. 14 discussed from 2017 shows that zero percent of the sampled 15 records in Housing Units 3 show that patients received 16 individual therapy every 30 days, and only 25 percent of the 17 sampled records show any evidence whatsoever of group therapy. 18 MDOC essentially decided to warehouse the largest concentration 19 of its most seriously ill mental health patients in a single 20 unit and then deny them care altogether. 21 failing. 22 The audit I That is a critical And if Your Honor -- I can refer you to Brown v. 23 Plata, Justice Kennedy's opinion affirming classwide relief in 24 a California case that said that such failure to provide care 25 is simply incompatible with the concept of human dignity and *** DAILY TRANSCRIPT *** 50 1 has no place in a civilized society. 2 There are several other failings and care at EMCF, 3 Your Honor. 4 precautions to prevent suicides and self-harm at EMCF. 5 example, EMCF -- you heard Dr. Perry admit that in 2016 EMCF 6 was told to provide safety mattresses to its prisoners. 7 are the mattresses you heard about that are harder to tear 8 apart. 9 You've heard that EMCF consistently fails to take THE COURT: For These Ms. Monju, you and Ms. Johnson have been 10 arguing to me for well over an hour now about all of these 11 problems that I have heard five weeks about from the witness 12 stand, and you have not given me the first suggestion for a 13 remedy, even if I were to find for the plaintiffs on everything 14 that you have argued. 15 16 MS. MONJU: Are you going to argue a remedy to me? Absolutely, Your Honor. So Your Honor asked for broad guidance. 17 THE COURT: You're running out of time. 18 MS. MONJU: Yes, Your Honor. So Your Honor asked for 19 broad guidance as to remedies, and there are several options we 20 believe would make a lot of sense in this case. 21 Your Honor could order a staffing analysis at EMCF with respect 22 to both security and health care staffing. 23 there is no evidence has ever happened at EMCF. 24 literally no idea how many staff are needed at EMCF, and this 25 would give MDOC the bare minimum staffing numbers it needs to And we've said It's something that *** DAILY TRANSCRIPT *** MDOC has 51 1 2 make EMCF a safe and adequate facility. Your Honor could also order that EMCF revise its 3 policies with respect to prisoners there. 4 several policies like punishing prisoners who harm themselves 5 despite the fact that that's a product of their mental 6 illnesses that simply run afoul of the constitution. 7 Honor could order an expert, for example, to propose revisions 8 to those policies and then require staff at EMCF to actually 9 follow those policies. 10 in conditions at EMCF. 11 We've talked about Your That would be a substantial improvement In addition, Your Honor, we've talked a lot about the 12 fact that the contract monitor identifies problem after problem 13 after problem in report after report. 14 systemically addressed. 15 medical records and CQI reports, same thing, identifying 16 problem after problem, never addressed. 17 And they're never We've also talked about the fact that Your Honor could order that an expert or MDOC devise 18 an oversight system that will not only identify problems at 19 EMCF but will actually ensure that they're solved at a systemic 20 level, and that's where the constitutional failing is. 21 are not solved. 22 They But, Your Honor, frankly you also needn't take that 23 granular action. 24 across the country and as have been the case in several courts 25 in this district, in just the last decade, Your Honor could As has been the case in dozens of courts *** DAILY TRANSCRIPT *** 52 1 appoint a subject matter expert or monitor to devise remedies 2 that are mutually acceptable to the parties and that would fix 3 conditions at EMCF. 4 we think it is one that would be good here. 5 That's frankly a very popular option, and But we also would say, Your Honor, that the most 6 important thing you could do is to define the conditions at 7 EMCF that are unconstitutional and then either have the parties 8 come back to address remedies or, as I said, appoint that third 9 party to devise remedies that would fix the problems at EMCF. 10 Your Honor also raised a couple of questions about 11 what it should do with evidence of what defendants have 12 presented as so-called improvements at EMCF. 13 address that in some more detail as well if that would be 14 helpful. 15 I'd be happy to So we've heard MDOC say repeatedly that it's doing its 16 best and that EMCF is getting better and that it should 17 therefore escape liability. 18 mistaken. 19 that EMCF is as dangerous and unconstitutional as it ever was. 20 They are getting assaulted. 21 They're not getting adequate nutrition. 22 mental health care. 23 But, Your Honor, MDOC is sorely First, Your Honor heard testimony from 19 prisoners They are not getting medical care. They're not getting Things haven't changed. Next, the evidence that MDOC has presented of its 24 so-called improvements are essentially irrelevant to 25 plaintiffs' claims, and I can give a few examples. *** DAILY TRANSCRIPT *** So, for 53 1 instance, Your Honor, they talk about netting and body scanners 2 to catch weapons coming into the facility. 3 allegations are that there are materials inside the prisons 4 that can be used to make weapons, and contraband rates are 5 soaring. 6 that guards aren't doing their job to keep materials that can 7 be used as weapons out of the hands of prisoners. 8 9 But plaintiffs' The problem isn't netting or body scanners. It's In addition, they claim to have hired more correctional officers. But as you heard from Ms. Johnson, 10 that's entirely irrelevant if the number of officers on a pod 11 at any one time haven't changed. 12 discussed, hiring a new doctor doesn't fix medical care at EMCF 13 if he's not providing the vast majority of care. 14 Honor and I also discussed, opening an acute care unit on the 15 eve of trial that has served .4 percent of the mentally ill 16 population at EMCF isn't enough to address systemic 17 deficiencies where EMCF is failing to give all mentally ill 18 prisoners care. 19 As Your Honor and I And as Your And I think one thing you've also heard that hasn't 20 been addressed yet is that MDOC has changed contractors during 21 the course of this lawsuit and that that somehow has fixed the 22 problems at EMCF. 23 at EMCF, which is that MDOC has decided to lock up its most 24 vulnerable prisoners there, has denied them basic necessities 25 and then has consistently slashed staffing for its contractors But that has nothing to do with the core rot *** DAILY TRANSCRIPT *** 54 1 at the facility without regard to the failure to address those 2 deficiencies. 3 who was operating the prison, EMCF wouldn't change. 4 If MDOC isn't forced to change, regardless of And on that point, Your Honor, Ms. Johnson spoke 5 briefly about the fact that even if EMCF has somewhat improved 6 over the course of this litigation, it is settled Supreme Court 7 and Fifth Circuit precedent that that is not enough to avoid 8 constitutional liability if defendants cannot meet -- and I 9 quote -- the heavy burden of proving that unconstitutional 10 conditions cannot recur. 11 And, Your Honor, I'm happy to provide several 12 citations for that, including Friends of the Earth v. Laidlaw, 13 which is a Supreme Court case in 2000, and Gates v. Cook, a 14 leading Fifth Circuit case on prison conditions, which say that 15 this is because defendants can't make what essentially are 16 changes -- window dressing changing to avoid liability and then 17 be permitted to go right back to what they were doing before. 18 Your Honor has asked for examples of how defendant 19 might have met this burden. 20 contracts. 21 could have done several things to prove to Your Honor that 22 conditions at EMCF were permanently improved. 23 repeatedly heard on the witness stand, the cosmetic changes 24 that have been made at EMCF are not required in any contract, 25 and MDOC is not forcing its contractor to make any of these They could have changed the They could have included increased staffing. *** DAILY TRANSCRIPT *** They But as you have 55 1 changes, and they can all be undone tomorrow. 2 we would say that regardless of the so-called improvements MDOC 3 has made, which do not address the vast majority of plaintiffs' 4 claims, MDOC cannot escape liability. 5 And, therefore, So, finally, Your Honor, regardless of your approach 6 to this case, we would say that it is clear that the more than 7 1200 men at the East Mississippi Correctional Facility are 8 entitled to relief. 9 mentally ill prisoners there. MDOC chose to house its most vulnerable They contracted the daily care 10 of those prisoners to for-profit vendors, and then it abandoned 11 its responsibility to provide basic necessities under the 12 constitution to those prisoners. 13 MDOC has been aware of the terrible conditions at EMCF 14 for years. 15 conditions, but it has failed to do anything. 16 definition of deliberate indifference, and these are precisely 17 the conditions under which the constitution requires the courts 18 intervene. 19 plaintiffs' evidence substantiating both the substantial risk 20 of harm to prisoners and MDOC's deliberate indifference to that 21 risk, we would ask the court to grant relief on all of 22 plaintiffs seven claims and provide the men at EMCF the relief 23 they desperately need. 24 25 It received report after report about those That is the And, therefore, in light of the weight of THE COURT: Thank you, Your Honor. Thank you. All right. Mr. Siler, before we begin your argument, we're going to take about a 15-minute *** DAILY TRANSCRIPT *** 56 1 2 break. We'll come back at 20 minutes after 11. (Recess) 3 THE COURT: 4 Mr. Siler, you may proceed. CLOSING ARGUMENT FOR THE DEFENDANTS 5 MR. SILER: I am going to dispense with what I had 6 originally intended to start with about going through some of 7 the legal issues because, frankly, plaintiffs don't -- and 8 defendants don't disagree all that terribly about what the 9 legal standards are. Our point of departure is is whether the 10 facts -- what the facts mean and how you interpret the facts in 11 light of those standards. 12 So I want to skip there. You had you asked us that -- 13 last week you had asked us to categorize all these shotgun 14 claims the plaintiffs have brought into claims that they had 15 clearly not met their burden of proof on and maybe claims that 16 they had done a little bit more on. 17 saying that defendants believe plaintiffs have not met their 18 burden of proof on any of their claims, but certainly some of 19 them seem to be a little bit easier to dispose of than others. 20 And I'll start there. 21 direct me to things of interest to you, I can move around very 22 easily. 23 It probably goes without And, obviously, if the court wants to The first claim I'm going to address is their 24 nutrition claim. 25 there were two different environmental conditions claims, an They had seven claims. Basically nutrition, *** DAILY TRANSCRIPT *** 57 1 excessive use of force claim, and what I call innate-on-inmate 2 assaults claim, but I think they call it protection from harm. 3 Then they had two claims on the medical side. 4 I'm not addressing the medical side. 5 that. 6 And, of course, Mr. Bentley will be doing But seems to me like the first claim that's easy to 7 dispose of from the court's point of view to me is this 8 nutrition claim. 9 picking nits over a variety of things that don't have any I feel like we spent the last five weeks 10 significance in anybody's mind other than plaintiffs, and I'll 11 come back to that in just a minute. 12 But we've spent a lot of time talking about caloric 13 intake and nutritious calories and failure to adhere to posted 14 diets when this expert was criticizing us for using bread 15 instead of hamburger buns on certain types of sandwiches and 16 weight loss and an unsanitary kitchen, distribution of food in 17 a mechanism that they did not find -- or she did not find 18 acceptable and criticized us over. 19 Just from a very common sense standpoint, there was 20 one inmate that I recall testifying that seemed he was on the 21 thin side of things. 22 we saw on that witness stand, Your Honor, as I know recalls, 23 were people that were having no issues missing food, missing 24 calories, having any problems. 25 Every other inmate that we talked to or There was at least one inmate that weighed over *** DAILY TRANSCRIPT *** 58 1 300 pounds. 2 asked the height and weight of virtually every one of them to 3 make certain the record was clear. 4 with respect to nutrition, and I think that's a very easy spot 5 for the court the say they didn't meet a constitutional burden 6 that their Eighth Amendment rights to cruel and unusual 7 punishment have been violated in any way. 8 9 There were several that were over 200 pounds. We These people had no issues They had an expert come in and talk about an unsanitary kitchen. This court has been through that kitchen. 10 Again, you don't need a monitor with white gloves or whatever 11 she was doing to look at that kitchen to see that that kitchen 12 looked good, it looked clean, things were well maintained, and 13 they passed all of their health inspections by the Mississippi 14 Department of Health. 15 There's just nothing to suggest that there's anything 16 approaching unsanitary about this kitchen. 17 hurt, gotten ill, been sick, had any problems with anything 18 regarding that kitchen. 19 unusual punishment going on as a result of the condition of 20 that kitchen to me is just the height of ridiculousness and 21 makes me wonder why we've been here for five weeks. 22 Nobody had been And to say that there was cruel and They talked about the distribution of food and the 23 fact that inmates were distributing food trays within the pods. 24 And every expert that came across this stand said that was 25 fine, there was no issue with inmates distributing food trays *** DAILY TRANSCRIPT *** 59 1 within pods as long as they were being supervised by 2 correctional officers. 3 anything different. 4 to any of these claims regarding nutrition. 5 They all were. Nobody said they saw It's just -- again, there's just no basis Second, two issues that I'll talk about a little bit 6 involved the combined claims regarding environmental 7 conditions. 8 issue to any of these things is just beyond ridiculous, in my 9 view. 10 Once again, to say that there's any substantive Let's don't forget as I start this. The court's been 11 to that facility and despite what you read in the press and the 12 horror stories and the dungeon and the supremely harsh and 13 terrible conditions of that prison, this court knows what the 14 prison looks like. 15 old building. 16 painted, it's polished, it looks nice. 17 It is a 20 year old -- not quite 20 year My house is older than 20 years old. It's They keep up with it. We showed the court videos that the plaintiffs put 18 into evidence that indicate this wasn't done in the last two 19 weeks. 20 place looks good. 21 physical plant. 22 conditioning and heating. 23 We do this regularly. We paint there every day. The It's an incredibly clean and well-run It's climate controlled. THE COURT: They have air Mr. Siler, it did not look good in the 24 video clips that the plaintiffs introduced into evidence that 25 were probably the 2016 time. It had been cleaned up *** DAILY TRANSCRIPT *** 60 1 substantially from what -- where it started. 2 MR. SILER: Well, I would disagree with you, but 3 that's -- I understand that's what the court feels. 4 that. 5 because I don't think they look any different at all. 6 I get But I'd urge the court to go back and look at them They have big screen TV sets. They have headphones. 7 They have programs, educational, religious, substance abuse, 8 life skills. 9 care, Your Honor knows just like I do, 99 percent of the They have -- even though they criticize health 10 inmates in that prison wouldn't have anywhere close to the 11 quality of health care if they were not in prison that they 12 have where they are. 13 kind of health insurance. 14 Most of these men would not be on any It's just the fact of life in the area in which we 15 live. 16 which is as long as your arm. 17 came across the stand didn't say they were a diabetic or had 18 various other kinds of illnesses, and I doubt seriously whether 19 any of them would have been on those medications in the free 20 world. 21 Every one of them is on medications that the list of I don't know that anybody that And as you pointed out earlier in your questioning, 22 none of us are going to get in to see a doctor this afternoon 23 if we've got a problem unless it's an emergency and we go to an 24 emergency room. 25 care right there where they live. But these gentlemen all have access to medical They get three square meals *** DAILY TRANSCRIPT *** 61 1 a day. 2 They have indoor/outdoor gymnasiums. You know, we're talking about -- and all of us know 3 about prisoners living in tents in Arizona, things like that. 4 To think about the conditions in which these individuals live 5 is just -- it's -- I don't get it. 6 cruel and unusual punishment comes in. 7 I don't understand where To get back to the particular specifics that they 8 raise, they talk about fires. 9 the prison. Of course, fires weren't set by They weren't set by the correctional officers. 10 They are set by the inmates. 11 they've gotten control of that situation by shutting the food 12 slot because people aren't going to set fires in their cells. 13 That situation has improved. 14 It's not an issue anymore. 15 They've -- as the warden said, It essentially taken care of. Does the prison have plumbing problems from time to 16 time? 17 plumbing problems were caused by inmates flushing things down 18 the toilets to keep them from being found or otherwise sabotage 19 things, not by anything the prison was doing. 20 enough maintenance people to get in there and fix everything on 21 a moment's notice, but everything in that prison are well 22 managed and well maintained. 23 Yes. But virtually all the testimony was that the We don't have They talked about filthy living conditions. 24 about pests. 25 I don't see any of that. They talk Again, I've been in that facility several teams. *** DAILY TRANSCRIPT *** 62 1 Their expert witness on sanitary conditions said that 2 a twice-a-month visit by the pest control should -- was a 3 reasonable response dealing with pests and that was a 4 reasonable way to do it. 5 have somebody come in twice a month. 6 Proof is that that's what we do. They've talked about inadequate lighting. We Most -- 7 you've been in that facility, Your Honor. 8 lighting. 9 with that lighting, just from a pure common sense standpoint. 10 You've seen the Unless the inmates tear it up, there's nothing wrong They talked about exposure to bodily fluids and 11 chemicals, and the -- Warden Shaw mentioned that every employee 12 who was -- rather every inmate who is employed there that does 13 cleaning and things of that nature is given training before 14 they begin those jobs to -- about how to avoid exposure to 15 bodily fluids and other chemicals, and they are given personal 16 protective equipment. 17 whether they show up in tennis shoes rather than rubber boots 18 is up to those inmates. 19 and that's done before they ever start the jobs. 20 Now, whether they wear it or not, But they are given all the equipment, They talk about lack of physical exercise, but they've 21 got all the facilities in the world, and there's no reason, no 22 excuse for them having -- not having enough physical exercise. 23 They also include under environmental conditions 24 information about inadequate mental health, and I presume that 25 what they are addressing there is the -- what they call the *** DAILY TRANSCRIPT *** 63 1 extreme social isolation and sensory deprivation involved with 2 isolated confinement, solitary confinement. 3 case -- and we'll cite to the court the cases in our posttrial 4 briefs rather than me spend time dwelling on them here. 5 we've found no case that's ever held that isolated confinement 6 is a per se violation of the Eighth Amendment. 7 We've found no But And just to briefly touch on that a little bit more, 8 the evidence and the proof in the record is that everyone in 9 isolated confinement in Housing Unit 5 is reviewed as a part of 10 a review process once a month. 11 Mr. McGinnis, sat in on one of the review meetings. 12 Shaw sits in on all of those meetings. 13 every single resident of Housing Unit 5 is reviewed and the 14 staff discusses along with the input of MDOC whether people 15 need to be put in for those -- or needs to be -- needs to 16 remain in isolated confinement. 17 One of the expert witnesses, Warden And every 30 days, Just another common sense aspect of all that is that, 18 you know, prison is a lot like a community, and we have to take 19 dangerous people out of a community and put them in prison, and 20 in the community of prison we have people that are dangerous to 21 correctional officers and dangerous to other inmates. 22 got to take them out. 23 We've Is that going to have some impact on their mental 24 health and degradation of their mental health? 25 being put in prison to begin with is going to have some impact *** DAILY TRANSCRIPT *** Yes. I suspect 64 1 on their mental health, but it has to be done. 2 came across this witness stand said you've got -- that's a 3 crucial management tool within a prison. 4 available, both as a measure of punishment, as a measure of 5 protection for everyone else, and as a measure of some 6 motivation not to break rules and violate problems within that 7 prison. 8 timeouts are not going to work for hard criminals. 9 10 11 12 13 Everybody that You have to have it If you don't have it, you know, coloring books and So to me the environmental conditions and the nutrition are -THE COURT: Are you arguing that isolation might be unconstitutional for one prison but not another? MR. SILER: No, I'm arguing -- there's no case out 14 there, to my knowledge, that says isolated confinement violates 15 the Eighth Amendment. 16 or there that -- an individual case. 17 that would give rise to it. 18 I've not seen a case anywhere saying isolated confinement is 19 violation -- per se a violation of Eighth Amendment. I'm sure you can find a case or two here But just as a general principle, 20 THE COURT: All right. 21 MR. SILER: All right. 22 23 There may be some facts So those are my initial thoughts on nutrition and environmental conditions. The third grouping of claims that I'd like to address 24 to me fall right under those two in terms of the plaintiffs' 25 failure to prove their cause of action has to do with excessive *** DAILY TRANSCRIPT *** 65 1 2 use of force. First of all, no witness got on the stand that I 3 recall and criticized or complained in any way about any of the 4 policies that MDOC or MTC follow or utilize with respect to -- 5 frankly I can't remember -- I can't remember much criticism of 6 policies in any respect, certainly not with respect to 7 excessive use of force. 8 9 They talk about -- they complained about the fact that we have some spontaneous use of force incidents that should 10 have been planned use of force incidents. 11 all sit around and argue about that and there probably are 12 occasions where correctional officers use spontaneous uses of 13 force as opposed to backing it up doing it in a planned and 14 more determined fashion. 15 come up with isolated incidents in which that happens. 16 And I'm sure we can And I'm certain anecdotally you can But, as a matter of systemic issues or systemic 17 problems within the prison, there's no proof at all with that. 18 I think we saw a couple of videos in which handheld cameras 19 were used to deal with planned use of force incidents or to 20 depict planned use of force incidents. 21 I'm not very smart and maybe I don't understand all this. 22 they looked very professional to me, and the correctional 23 officers handled themselves appropriately, they handled 24 themselves well. They weren't beating, kicking, snatching 25 inmates around. I recall one where they were in the hallway And, you know, again, *** DAILY TRANSCRIPT *** But 66 1 where they stopped to loosen up an inmate's handcuffs or leg 2 irons because the inmate was claiming that they were too tight. 3 And doing that kind of thing just indicates the height of 4 professionalism to me, not them treating inmates badly. 5 Plaintiffs complain that we don't use deescalation 6 enough. 7 anything on any particular basis, but I'm not aware of any case 8 in which any court has held that it's a violation of the Eighth 9 Amendment -- anyone's Eighth Amendment rights that they weren't I'm sure they can come up and complain about virtually 10 put through some deescalation process before they were -- use 11 of force was utilized on them. 12 I think I mentioned in opening, and it bears repeating 13 here, that a lot of what this plaintiffs are asking this court 14 to do is not something that's required by the constitution. 15 It's not a constitutional minimum. 16 thing that should be done. 17 a, "We think you should do it this way instead of the way 18 you're doing it," not because the constitution requires it, but 19 because they feel like ate a better way to handle things, and 20 this is one of those instances. It's what they think is the It's a best practices case. It's 21 Mental health inmates they claim are being sprayed 22 with OC spray, even if the reason they are being sprayed is 23 because their mental health condition prohibits them from 24 complying with orders or rules of the prison. 25 interesting to say on one point. You know, that's But on the other side of *** DAILY TRANSCRIPT *** 67 1 things, even mental health patients, they can kill you just as 2 dead as somebody who's completely sane. 3 as bad. 4 They can hurt you just And to say that just because somebody has a mental 5 health issue that a correctional officer doesn't have the right 6 to protect himself, to make sure things get done in a correct 7 way, again just to me that just seems ridiculous. 8 cases of which I'm aware -- and we'll cite in our briefs to the 9 court to a lot of cases that deal with chemical -- use of And there no 10 chemical agents, and I'm not aware of a single case anywhere 11 that says that the use of chemical agents is a per se violation 12 of the Eighth Amendment. 13 And I might add that it's -- you know, from a 14 standpoint of reasonableness, again using chemical spray that 15 causes momentary irritation is a heck of a lot better than a 16 flashlight or night stick or three or four correctional 17 officers having to jump on somebody in a cell, much less 18 intrusive means of dealing with those individuals. 19 They complain about the fact that we don't have 20 sufficient supervisory review of use of force incidents, but 21 all those use of force incidents they put in the record -- and 22 there's dozens and dozens of them -- every one of them was 23 reviewed by a supervisor. 24 could we do better. 25 other than the officers involved. Every one of them talks about what Every one of them was reviewed by someone *** DAILY TRANSCRIPT *** 68 1 They talked about the fact or claim that we have 2 deficiencies in staff discipline with respect to correctional 3 officers who were involved in excessive use of force. 4 the court look at Joint Exhibit 59. 5 exhibit that deals with staff discipline. 6 believe it demonstrates very well how much discipline goes on 7 with staff and how we try to train use incidents to better 8 people so that they'll handle things in a better way in the 9 future. 10 I'd like It's the 116 pages of an And it shows -- I In my view, there's just no credible proof in this 11 record that the Eighth Amendment rights to the cruel and 12 unusual punishment have been violated with respect to the 13 excessive as you of force. 14 It's just -- it's just not there. Well, what does that leave? That leaves their 15 protection from harm or inmate-on-inmate assaults claim. 16 went to a great deal of effort to fly Mr. Vail in here to talk 17 about how we were such an extremely dangerous facility. 18 put on the information about assaults, and I think if you'll 19 look at what I believe is Plaintiffs' Exhibit 2849 where they 20 put in the statistical reports about assault, you'll see that 21 just simple math will tell you less than 15 percent of the 22 inmates in any given year have any issue with an assault. 23 It's -- when you look at it that way, it's a very rare thing. 24 25 They They As Mr. McGinnis continued to say over and over, the sample sizes, when you looking at statistics, are so small that *** DAILY TRANSCRIPT *** 69 1 even something that may look like a difference, if you start 2 looking at it over the course of the year and locations in 3 which those assaults allegedly take place, you're just looking 4 at such small numbers it's hard to really make anything out of 5 it. 6 And let me -- the court asked some I though insightful 7 questions a few minutes ago about how you compared, how do you 8 know. Let's say we had 100 assaults in the facility in 2016 or 9 2017. How does the court know through any objective evidence 10 that that's a big number, a small number, or about right number 11 given the circumstances? 12 talking about the deficiencies or actually the problems with 13 definitions and defining what assaults are. 14 And that's why I spent a little time As Mr. McGinnis was testifying, there's just no -- and 15 actually Mr. Vail too. 16 one prison to another, one state to another, because everybody 17 defines them differently. 18 in which a particular event was described, just like we did 19 with Mr. McGinnis the other day, reasonable people could sit 20 there and use the same definition and say, "This is not an 21 assault. 22 You can't really compare assaults from And even if you look at a document This is an assault." And when you look at things further from that -- so 23 somebody pushes somebody and it's an assault, is that that big 24 of a deal? 25 the hospital, that is a big deal. If somebody stabs someone and they have to go to Where do you draw the line *** DAILY TRANSCRIPT *** 70 1 on that? 2 very difficult thing, and it's really hard to do much, although 3 we tried to be as objective as we could in taking a look at it. 4 It's just a hard thing to try to pin down when you get right to 5 it. 6 To make an objective analysis on assaults is a very, So where does that leave you? It leaves you with 7 trying -- looking at just from a common sense standpoint. 8 asked a question earlier in the trial and I was serious about 9 it. I grew up in a family of four boys. 10 assaults a month amongst my brothers. 11 through high school. 12 I We had more than 13 It's amazing we lived But 1200 men who are hardened criminals who are 13 murderers, rapists, and all that living next to each other 14 24/7, 365 days a year in close proximity, they are going to 15 have fights. 16 plaintiffs claim happened in 2016, just doesn't seem to me to 17 be that big a number that excessive. 18 And 13.33 assaults per month, which is what the And Mr. McGinnis and Mr. Roth both who had 30 and 40 19 years plus in the Illinois and Michigan corrections system and 20 much experience throughout corrections -- throughout the 21 country, both testified that these numbers were not significant 22 and not out of line with any other facilities. 23 believe they are either. 24 25 Now, they complained about locks. And I don't Locks have been a confounding subject for the prison management to deal with. *** DAILY TRANSCRIPT *** As 71 1 Mr. Stonehouse said, these were appropriate locks for this 2 level of security. 3 maintained correctly. 4 They were installed correctly. They are They operate and function correctly. That doesn't mean they can't be defeated. He 5 testified that they have been defeated and every prison 6 struggles with these same issues. 7 made light of the fact, well, how come we don't see prisoners 8 running around all over these jails if they can get out of the 9 cell doors? One of the lawyers somewhat The fact is, you don't see them running round East 10 Mississippi either. 11 able to defeat the locks, and we're not even sure if some of 12 those were inmates defeating them or whether it was 13 correctional officers defeating them. 14 of things that the prison management has to deal with. 15 get correctional officers that aren't good people either. 16 You've got to weed them out and deal with it and they create 17 problems. 18 There are occasions on which they were That's one of the issues They But one of the inmates -- and I don't recall which 19 one, sat on the stand and said that the guards had about gotten 20 the lock situation figured out and that they didn't have as 21 many people getting out of these doors as they were. 22 they defeat them, as Mr. Stonehouse testified and I think some 23 of the inmate did too, it's very easy to put something, glue 24 something in there on a track or in a door jam to keep the door 25 from closing altogether. The way And it's just a matter, from the *** DAILY TRANSCRIPT *** 72 1 correctional officer's standpoint, of going up and making sure 2 that those doors are closed every night. 3 They've gotten better at it. They took a reasonable 4 step to try to cure that issue, and I'm not sure that we've 5 seen any proof, significant proof, of any issue with those 6 locks in the last year. 7 They complained about contraband and as the court 8 noted earlier, every prison everywhere has contraband. 9 Mr. McGinnis the other day, "Is there anything that they are I asked 10 not doing at East Mississippi that they should be doing to keep 11 contraband out?" 12 it, be deliberate and continue to do things they need to do." 13 And he said, "No, they just have to stay with Are there -- is there contraband that's inside the 14 facility that the inmates are making use of? 15 Mr. Shaw told us was that they are taking some of that out, 16 those light fixtures from which they were making contraband 17 weapons, taking those light fixtures out. 18 of those out or most of them out. 19 Yes. And what They have taken all They are in the process of experimenting with a new 20 light fixture. 21 but it was a number of light fixtures and they were just a 22 matter of now getting them installed that they thought would 23 even be better. 24 25 They have purchased, I can't remember how many, So they're taking steps. They are not deliberately ignoring anything, and they've got to do things in a deliberate *** DAILY TRANSCRIPT *** 73 1 way. 2 considerations in mind, but they are not ignoring anything. 3 They have to keep budgets and all of those kind of Can people get contraband in through magnetic 4 resonance machines? 5 motivation to do it? 6 $25 and sell it in the facility for $600, which I think was one 7 of the things that one of the inmates said that phones were 8 going for within the facility. 9 motivated to try to bring things in. Yes, they can. Yeah. And do they have some You buy a telephone at Walmart for People are going to be You do your best. They 10 are working on it, but I can tell you they will never keep all 11 of it out nor can any other prison. 12 constitutional here about any of that. But there's nothing 13 They complained about counts and whether you believe 14 what people are saying about how the counts are being done or 15 believe how prison management contend the counts were being 16 done. 17 being hurt? 18 One question I have when I looked at that is: Who's Where's there been any injury from a count? We can talk about it all day long. You're supposed to 19 do face to photo. 20 people (sic), however you're supposed to do it. 21 never been an escape from that facility since 2012 when 22 Mr. Shaw first came into it. 23 You're supposed to have two people or one But there's No one testified that -- anything about a count 24 causing any harm to anyone, which isn't to say we're not going 25 to continue to be diligent about counts and change up the *** DAILY TRANSCRIPT *** 74 1 attitude of the correctional officers and make sure things 2 happen the way they are supposed to. 3 nothing that rises to the level of an Eighth Amendment cruel 4 and unusual treatment about a count. 5 anyone to cruel and unusual treatment. 6 But there's simply That doesn't subject There's a lot of issues about gangs -- issues. 7 There's been a lot of discussion about gangs, more by the 8 lawyers than any of the witnesses. 9 talked about the fact that she thought during her time there Ms. Thomas, who testified, 10 earlier on that gangs are been an issue. 11 Ms. Thomas was not in that facility through most of 2016. 12 was on sick leave. Keep in mind 13 THE COURT: You have about five minutes? 14 MR. SILER: Thank you. 15 She She wasn't there most of the time. 16 Let me skip quickly to staffing which is the last 17 substantive thing I wanted to mention. 18 minutes ago P-2431. 19 back of that roster, Your Honor. 20 of it. 21 roster on the back of that, all of which are available to staff 22 all of those positions. 23 manage their roster. 24 25 They showed you a few Look -- that's the roster. Look on the They never show you the back There's another 26, 28 people that are included on that And it's just -- they know how to They don't have an issue on the roster. Frank Shaw said 100 -- he now has 177 correctional officers employed there. He said that that's more than enough. *** DAILY TRANSCRIPT *** 75 1 He can run his prison, run it safely and run it well with 177 2 officers. 3 him a real cushion. 4 Mr. McGinnis, said that we could run that facility safely on 5 177 officers. 6 He could run it well before that, but this has given Both of our experts, Mr. Roth and Plaintiffs -- let me finish with the roster thing real 7 quick. 8 many people need to be in Housing Unit 5. 9 those spaces on that roster, they have 12 people assigned to 10 Housing Unit 5 as correctional officers, including a sergeant 11 and a lieutenant. 12 Unit 5 already. 13 If you'll go look, you asked the question about how If you'll count So they have 14 people assigned to Housing They don't need more. They are like any other employer on any given day, 14 somebody may not show up for work. 15 on vacation. 16 discipline. 17 things, but they know how to staff this facility. 18 They may be training. They may not -- they may be They may be off on They are having to move around and take care of Their big problem with staffing is they say Mr. Vail 19 thinks there should be an officer on every pod. Well, that is 20 Mr. Vail just saying, "I think this will help." There is no 21 requirement by the Eighth Amendment that they have officers in 22 those pods. 23 best practice or better way to do it, and it's -- that's not an 24 Eighth Amendment violation. 25 They are staffed -- all that is is he thinks it's Two things quickly, and I'll get out of the way. *** DAILY TRANSCRIPT *** This 76 1 court will have to deal with Prison Litigation Reform Act, 2 18 USC Section 3626, if it decides to remedy anything. 3 told the court at the opening, the purpose of that statute when 4 it was passed back in 1990s was to prevent or deter federal 5 courts from micromanaging the prison system. 6 more of that at break -- within the brief rather, but that 7 particular statutory provision places severe limitations and 8 restrictions on what exactly the court can order as a remedy. 9 As I We'll deal with What the plaintiffs want, Your Honor -- there's an 10 agenda here. 11 prisons. 12 through legislation so now they are trying to litigate them out 13 of business. 14 They do not want private companies managing They want them out. They couldn't get them out That's what's going on. They want to run the ACLU, the SPLC, the National 15 Prison Project, whatever groups that they can pull under their 16 umbrella, they want to run this facility. 17 an accomplice to do that. 18 And they want you as And when they talk about, as Ms. Monju did a few 19 minutes ago that they want a staffing analysis, they want a 20 revised policy, they want an oversight system, they want to 21 appoint monitors, what they are wanting is to let them run this 22 prison. 23 how to run this prison. 24 this court. 25 They don't know how to run this prison. I don't know And with all due respect, neither does That gentleman right there who's been doing this for *** DAILY TRANSCRIPT *** 77 1 30 years or more knows how to run this prison. 2 working on it since he came back at the end of 2015, beginning 3 of 2016. 4 working on this prison. 5 doing this. 6 poet says, they've got miles to go before they sleep. 7 need to get out of their way and let them run this prison and 8 not the ACLU and not the SPLC, because that's what they want to 9 do. He's been He is the kind of person we need sitting there He and his team need to be the ones They've come a long way in their journey. 10 Thank you, Your Honor. 11 THE COURT: Let me ask a question. As the But we There was lots of 12 evidence during the plaintiffs' case about fires and torn up 13 lighting fixtures and filth and things of that nature. 14 observations from the -- from the tour of the prison was that 15 it was pretty well spit shined. 16 had been repainted. 17 It was -- in there even, it was very clean. 18 could be up and down the halls. 19 was substantial changes that had been made. My All of the Unit 5, the doors The floors, I think, had been repainted. It was clean as it The kitchen was clean. There 20 Should I take that as -- with a grain of salt and with 21 the plaintiffs' suggestion that the prison accreditation agency 22 was -- came in there three days before the court did and that I 23 can came in the day after they did and that the prison had been 24 cleaned up for those occasions? 25 MR. SILER: How should I take that? Your Honor, I've been in that prison a *** DAILY TRANSCRIPT *** 78 1 lot, and I've never seen that prison look any different than it 2 did when you and I went in there. 3 there the day after somebody has started a fire and smoke has 4 smoked up a white wall or charred up a door, yes, it's going to 5 look a little different that day. 6 Now, yeah, if you go in But as Mr. Shaw said and those videos pointed out, 7 that people are in there painting five days a week every week. 8 Once they get back through there, they get things painted. 9 don't recall looking in the video -- and Your Honor's memory 10 may be better than mine -- that the facility looked any 11 different in any of those videos than it did when you and I 12 went in there that day. 13 I Now, it remember one day in Unit 5 -- one video in 14 Unit 5 we looked at that had the white styrofoam lunch trays on 15 the floor, and Warden Shaw testified that's how they deal with 16 things. 17 recollection it was, and they had opened the food slots and 18 thrown the styrofoam trays on the floor, which the porters then 19 come around later at some point and pick them up. 20 recall ever seeing -- that's why we showed some of those over 21 because I don't ever recall ever seeing a hallway that had 22 anything in it or any other photo. 23 cell door charred in Housing Unit 5 in those videos. 24 25 At the end of breakfast, it was an 8:30 video is my But I don't I don't recall seeing a Now, I do remember we saw one fire, which was a pretty good demonstration of how they do it. They open those food *** DAILY TRANSCRIPT *** 79 1 trays and set fire on something on that tray right outside the 2 door and once it gets to burning they push it out. 3 recall -- I just -- your memory is probably better than mine. 4 I just don't recall that facility looking much different than 5 it does. 6 I'll say this. But I don't Frank Shaw understands that the 7 physical plant needs to look good. 8 in it, both your employees as well as these inmates. 9 he and his staff do a wonderful job trying to keep that People need to have pride I think 10 facility up, given what they're fighting against with these 11 guys 24/7 with nothing to do except to create problems. 12 that's my thoughts on it, Your Honor. 13 THE COURT: I frankly am surprised. So I'm certainly 14 aware of the recent history in the Mississippi prison system, 15 including this one, and the head of the prior health care 16 contractor I think got in some trouble with the commissioner, 17 and I'm surprised that you haven't been arguing that changes 18 were made after that and that Mr. Shaw was at the lead of those 19 changes, but you haven't made that argument. 20 don't think that there's been anything bad over there since we 21 started. 22 23 24 25 MR. SILER: Apparently you No, I wouldn't say that. Mr. Shaw said Like plaintiffs' expert. You don't think when he came in -THE COURT: there's anything bad, and he doesn't think there was anything *** DAILY TRANSCRIPT *** 80 1 good. 2 MR. SILER: I wouldn't go that far, Your Honor. He 3 testified, Mr. Shaw did, when he first came to that facility in 4 2012 he almost got back on his plane and left. 5 terrible shape. It was in lockdown mood. 6 tactical teams. There was no programs. 7 2012. 8 contractor. It was in They ran it with It was bleak place in At that point, that facility was run by another 9 He came in, was there for a year for 2012 to 2013, 10 made a lot of changes, went out then for next two years, came 11 back in at the end of 2015 and started back dealing with that 12 facility again. 13 you that that facility has changed dramatically since he came 14 back in late 2015 because that's -- he is -- that's -- because 15 of him. 16 that was going on or PR problem or whatever. 17 that because that's the way he runs prisons, and we need to get 18 out of his way. 19 And if they'd be honest with you, they'll tell And he didn't do it to try to help out a situation THE COURT: Frank Shaw did Suppose I agree with Mr. Shaw that he has 20 made some substantial changes but that I agree with the 21 plaintiffs that there are certain things that they have 22 complained about that meet the test of being unconstitutional 23 and that need to be corrected? 24 option and the power to issue an injunction that says what 25 specifically needs to be done and on what basis or timetable or I understand that I have the *** DAILY TRANSCRIPT *** 81 1 tend to in some way require changes and have to monitor it in 2 some way. 3 unconstitutional is going on over there or has been, as I 4 understand your argument. 5 Is that -- your position is it was -- nothing MR. SILER: Yes, I would agree with that. The 6 constitutional Eighth Amendment prohibition has not been 7 violated. 8 they know a better way to do it. 9 they're dealing with, Your Honor. 10 Now, somebody may find a better way to do it, think But they don't know what He's with those guys every day. He knows the people 11 he's dealing with, the inmates he's dealing with, the issues 12 that they're dealing with. 13 complicated than you know, the ACLU knows, I know. 14 could somebody armchair quarterback and say, yeah, you should 15 have three more people on this shift, should you put people in 16 a pod. 17 constitutionalizing requirements that you don't even give. 18 constitution doesn't require that. 19 You can do that. THE COURT: It's a lot more complex and And, yeah, But all that is is using The I can't get the plaintiffs to say anything 20 good about that prison, and I can't get the defendants to say 21 anything wrong. So thank you. 22 MR. SILER: Thank you. 23 THE COURT: All right. 24 THE CLERK: Mr. Bentley. 25 THE COURT: Did I get the wrong person? Mr. Morisani. *** DAILY TRANSCRIPT *** 82 1 2 MR. BENTLEY: I take it as a compliment. 3 THE COURT: 4 MR. BENTLEY: 5 THE COURT: 6 That's okay, Your Honor. six weeks. Mr. Bentley, I do apologize. No apology necessary, Your Honor. I've been sitting here looking at you for All right, sir. 7 CONTINUED CLOSING ARGUMENT FOR THE DEFENDANTS 8 MR. BENTLEY: 9 I think it's time for me to say good afternoon, Your Honor, and may it please the court. Your 10 Honor, from your -- I want to start where you left off with Mr. 11 Siler because you do have our theory of the case. 12 This case is about current conditions. It's not about 13 East as it existed in 2014, 2015 or 2016. 14 that you have received shows a steady course of improvement at 15 East led by the commissioner who is the courtroom today, 16 Commission Pelicia Hall, led by Warden Shaw, led by the medical 17 staff at East Mississippi Correctional Facility. 18 And the evidence So this case is about current conditions. But you're 19 right. 20 asking. 21 inevitable situation that changes are made and conditions are 22 improved at a facility over the course of litigation that is 23 carried on for this long? 24 25 What does the court do? This is a question you've been What does the court do when it is confronted with the What you do and where would I direct you first to look is a decision by the Middle District of Florida, Hughes v. *** DAILY TRANSCRIPT *** 83 1 Judd, 108 F.Supp. 3d 1167. 2 Southern Poverty Law Center against a facility in Florida. 3 the judge in that case noted that the sheriff -- this was a 4 sheriff's department -- had engaged in a steady course of 5 improvement throughout the life of the litigation. 6 district judge said, "What I have to do" -- and this is at page 7 1175 of that opinion -- "is look at the evidence." 8 judge looked at the evidence and said, "Nothing in the credible 9 evidence supports the notion that any improvement that has This was a case brought by the And The And this 10 occurred was motivated by an attempt to evade liability in the 11 litigation or that any improvement will disappear when the 12 litigation terminates." 13 I'm going to talk to you about the proof in this case, 14 Your Honor, and I think that is what our evidence shows just as 15 the district court in that case found that that was what the 16 evidence showed in Florida. 17 What Your Honor asked to us do on Thursday is take -- 18 try to distill the plaintiffs' claims which, as Ms. Johnson 19 noted this morning, really do go to all aspects of prison 20 administration. 21 that were actually tried by the classes, determine whether the 22 plaintiffs offered sufficient proof of systemic and persuasive 23 constitutional violations on any one of those claims that were 24 tried, and then help the court sort out a remedy, if one is 25 necessary, that avoids dragging the court down into what the Try to distill -- try to identify the claims *** DAILY TRANSCRIPT *** 84 1 Fifth Circuit has called the minutiae, becoming enmeshed in the 2 minutiae of prison administration. 3 I'm going to talk specifically about the mental health 4 and medical subclass, and I'll also talk about the isolation 5 class. 6 deliberate indifference standard but do want to highlight the 7 underpinnings of that standard. 8 standard? 9 But I think -- and I'm not going to go back over the Why is it such a strict Well, there's two reasons. First, this case deals 10 with prisoners and prisoners' complaint about their conditions 11 of confinement. 12 have committed crimes that require their imprisonment for the 13 protection of the public. 14 standards, it's not professional standards or best practices. 15 The question is elemental decency and whether the jailers when 16 they are brought into court are meeting that standard. Prisoners have to be confined because they So the question is not community 17 And the second underpinning is what we've been 18 discussion all day long that managing a prison is an enormously 19 trying and complex task. 20 task, it has to have clear and specific remedies it can impose 21 if it finds that there's a constitutional violation. 22 And before the court steps into that I do want to talk just briefly about the standards 23 that do not govern his case, and these are deviations from 24 prison policies. 25 We've heard concessions that they are good policies. We've heard a lot about prison policies. *** DAILY TRANSCRIPT *** We've 85 1 heard proof that they are tied to national correctional -- 2 national commission on correctional health care standards and 3 ACA standards, and then we've heard testimony that -- from 4 experts that those policies are being deviated from. 5 The Supreme Court has said that prison policies 6 naturally do not create rights for inmates. 7 demonstrate an Eighth Amendment violation by demonstrating that 8 despite best efforts, the commissioner, the warden, and the 9 medical staff do not always achieve the policy requirements. They cannot 10 Contracts terms are not the standard. 11 improvement efforts. 12 engaged in a robust monitoring effort is not proof that they're 13 violating the Eighth Amendment. 14 15 16 17 Continuous quality Again proof that prison officials are Your Honor, I do want to turn now to the claims, and with your permission I will approach. (Document Tendered to the Court) MR. BENTLEY: So what we did on the defense side when 18 you asked us to try to distill these claims into something 19 manageable, we went back to Your Honor's published opinion in 20 2012 which certified this class. 21 and I'm not going to walk through every one of these claims 22 that Your Honor identified as what we took to be the claims as 23 understood by everyone in September of 2015. 24 25 And what I provided you -- I'm going to talk -- the ones that were highlighted this morning, I'm going to walk through those and we can *** DAILY TRANSCRIPT *** 86 1 address the others in posttrial briefing. 2 by confronting the suggestion that the Mississippi Department 3 of Corrections did not put on any proof to rebut the 4 testimony -- the opinion testimony of the plaintiffs' experts, 5 which is really what the medical case and mental health care 6 case comes down to. 7 But I want to start Your Honor heard from five witnesses, Dr. Kim -- six 8 witnesses: 9 Dr. Kim Nagel, whose deposition testimony is in the record. Dr. Gloria Perry, the chief medical officer. 10 He's the chief psychiatrist. 11 who is the chief psychiatric nurse practitioner at East right 12 now. 13 about the current delivery of care at East Mississippi 14 Correctional Facility. 15 Dr. Patrick Arnold. Nurse Practitioner Evelyn Dunn, And two nurses, all whom testified And, notably, Dr. Nagel in his deposition said, of 16 course, there were two years of rockiness when we came in after 17 Dr. Reddix's firm was booted out. 18 There's been a steady course of improvement. But changes have been made. 19 Plaintiffs said we didn't introduce a single document. 20 Well, the plaintiffs introduced all the documents that we would 21 have relied on and much more, including the CQI reports and 22 thousands of pages of medical record. 23 Your Honor. 24 continuous ongoing contact by patients with their doctors and 25 medical providers in this prison. And this is important, Thousands of pages of medical records that show *** DAILY TRANSCRIPT *** 87 1 There's simply no proof in these medical records that 2 anyone is indifferent to the conditions that the inmates are 3 experiencing at this facility. 4 Finally -- and this goes to what I take to be a pretty 5 significant concession from plaintiffs, that their remedy in 6 this case, as they have said to Your Honor, is not -- they did 7 not offer Your Honor any help with what to do, assuming there's 8 a violation. 9 MDOC to a point -- an expert to conduct a staffing analysis. 10 The remedy on policies is to direct MDOC to hire an expert to 11 review policies and make recommendations about changes. 12 remedy on continuous quality improvement is to appoint an 13 expert and let them look at an implementation system and direct 14 MDOC if one is required to implement any changes. 15 They said the remedy on staffing is to direct The This is a concession that the plaintiffs -- that was 16 their job. 17 court, identify deficiencies and if there are any deficiency 18 identify remedies. 19 they are asking this court to do that for them simply 20 demonstrates that they have not satisfied their burden under 21 the Eighth Amendment because these things are intertwined. 22 That was their expert's job was to come into this They have not done that, and the fact that The court cannot know if the isolated incidents that 23 it has heard about or that the experts have identified are 24 evidence of systemic and pervasive indifference without knowing 25 whether the prison is adequately staffed. And there's been no *** DAILY TRANSCRIPT *** 88 1 proof, no proof, that it is inadequately staffed on the medical 2 and mental health side or any other side, for that matter. 3 I want to go directly to the staffing point. 4 And The only evidence of staffing analysis at this prison 5 is evidence that MDOC itself did an analysis in the competitive 6 bid process, and MDOC determined that 43 medical and mental 7 health care staff would be the minimally sufficient number to 8 serve this prison population. 9 Commissioner Hall, Dr. Perry, Centurion have approved 52 Working with its vendor, 10 full-time positions at this facility. 11 minimal staffing requirements. 12 that with no additional costs to the state. 13 Over eight above the They've figured out a way to do And 48 -- you heard testimony that 48 of those 14 current -- those authorized positions are filled. 15 as it stands today is that staffing is 113 percent of the 16 minimally sufficient number at that facility, and that's just 17 filled positions. 18 So the proof There's also testimony in the record by Dr. Nagel. I 19 would encourage you to read his deposition at pages 27 through 20 35 that, in his opinion, as of April 2017 he did have 21 sufficient mental health care staff to care for the population. 22 There's testimony by Nurse Townsend, a nurse that 23 works at East Mississippi or did work at East Mississippi. 24 deposition is in the record, and I would encourage you to look 25 at pages 17 and 18 where she testifies that in her experience *** DAILY TRANSCRIPT *** Her 89 1 the nursing numbers are sufficient to provide the care that 2 nurses are required to provide. 3 The second thing that was focused on this morning and 4 that has been focused on roundly at trial is what's been called 5 the sick call process. 6 access care when they have episodes or acute situations that 7 need to be addressed. 8 inmates who testified, some of whom had no concerns at all 9 about the sick call process. This is the process by which inmates The plaintiffs' proof on this was 19 Some did. That's not surprising. 10 Experts who offered opinions about the process as it 11 existed in 2016, and CQI data, which, of course, based on the 12 small sample size shows some fluctuation, but also shows that 13 MDOC is monitoring the sick call process and making 14 improvements where required. 15 Now, what was the defendants' proof? Dr. Arnold 16 testified that 150 to 200 inmates are seen every week in the 17 clinic through the sick call process. 18 indifference. 19 judgment of medical professionals. 20 that as far as he knew, the nurses and doctors and nurse 21 practitioners at that facility were caught up on the sick call 22 requests. 23 That's not deliberate That's delivery of care as required in the And Dr. Arnold testified And when there are delays -- remember this, Your 24 Honor. 25 seven day requirement to be seen by a provider, if someone is The CQI data that you've been shown, 24 hour triage and *** DAILY TRANSCRIPT *** 90 1 seen in 25 or 26 hours, that's noncompliant pursuant to the 2 policy. 3 seen in eight, nine or ten days instead of seven, that's 4 noncompliance under the policy. 5 indifference. 6 That's not deliberate indifference. If someone is But that's not deliberate And as Dr. Arnold testified, the reason that someone 7 may not fall within the seven-day period is that if the system 8 gets overwhelmed -- and in that case medical professionals are 9 making medical judgment about which cases have to be 10 prioritized and which cases are nonurgent and that can be seen 11 immediately outside of a seven-day period but certainly no way 12 approaching the constitutional requirement that an inmate 13 request for care be ignored or mistreated. 14 The third thing that was focused on this morning and 15 has been focused on at trial is what's called the pill call 16 process, the medication administration process. 17 plaintiffs' proof on this, again, is inmates, some of whom 18 testified they had misses in medication for various reasons, 19 human error by nurses, no shows or refusals by inmates, and 20 some of whom inmates testified are -- raised no issue at all 21 with medication administration. And the 22 And then you had an expert, Ms. LaMarre, who testified 23 that in her opinion in 2016, policies were being deviated from, 24 and the gaps in -- the periodic gaps in medication 25 administration were -- based on her sampling were not meeting *** DAILY TRANSCRIPT *** 91 1 community standards. 2 Your Honor, no one denies that in a prison health care 3 system of this nature there will be interruptions in medication 4 because of lockdowns or no shows or human error. 5 testified that there are 3,000 doses of medication administered 6 at this facility every day. 7 year. 8 would be in any mental health care system that's dealing with 9 that volume of medication and that number of patients who 10 Dr. Arnold That's over 1 million doses a Of course there will be periodic interruptions. There require care. 11 But when interruptions do occur, there is followup. 12 Nurse Practitioner Dunn testified to Your Honor about her 13 followup practices if she has a patient that has missed three 14 or more -- three consecutive doses of medication. 15 Brookshire testified about the procedures she follows in the 16 pill call process. 17 of missed medication is a refusal or a no show by an inmate. 18 Nurse And in her view, that most every occasion Nurse Townsend in her deposition at pages 65 to 85 19 testifies at length about the medication administration 20 process, including her process for charting refusals and no 21 shows and following up with providers when a medication is 22 missed. 23 There is no proof in this record that any nurse, any 24 doctor, any nurse practitioner, any mental health provider, is 25 ignoring situations when an inmate misses his medication. *** DAILY TRANSCRIPT *** The 92 1 proof is just the contrary, that they are responding to those 2 situations. 3 receiving significant amounts of medication as required in the 4 judgment of their medical professionals to treat their 5 condition. 6 The medical record confirms this, that inmates are And, again, I'm going to skip to the mental health 7 issue rather than going through all of the medical issues that 8 Your Honor identified. 9 think there is any proof, certainly not proof sufficient to But suffice it to say that I do not 10 meet the strict deliberate indifference standard on any one of 11 the eight medical claims that Your Honor identified. 12 So turning to mental health. The primary complaints 13 that I understood the plaintiffs to raise, the first one that 14 was discussed was lack of access to group or individual therapy 15 at East. 16 you saw a graphic this morning that showed in Unit 3 at least 17 25 percent of the inmates were receiving some form of group 18 therapy, and that is in addition to the medications that treat 19 and stabilize their conditions and to the individual meetings 20 that they have with their psychiatric providers. 21 Well, I have not -- first of all, Your Honor, I think Now, I have not found any cases that say under the 22 constitution an inmate who is otherwise stable on medication 23 and is otherwise receiving individual treatment by a 24 psychiatrist or a psychiatric nurse practitioner is entitled on 25 top of that to group therapy. I just have not seen those *** DAILY TRANSCRIPT *** 93 1 2 cases. In fact, the cases are to the contrary. If an inmate -- and these inmates in this case are, 3 and the medical records confirm it, if an inmate is receiving 4 medication to stabilize his condition so that he can function 5 in the prison -- and you've heard testimony that the vast 6 majority of inmates at East are stable, they're level of care C 7 as the agency defines them -- they are stable on their 8 medications and they can function within the prison. 9 not seen any cases that say that if that is the case, there is And I've 10 some additional burden on prison officials to provide 11 additional therapy that in the medical professional's judgment 12 may or may not be required. 13 Now -- 14 THE COURT: 15 MR. BENTLEY: What about being locked up in isolation? Your Honor, I'll turn to the isolation 16 subclass because, again, this is an area where I think we are 17 stepped firmly into the area of prison reform. 18 challenges their placement. 19 that any confinement in isolation longer than 14 days is 20 inappropriate, in his medical opinion, and should be abolished 21 under the constitution. 22 the fundamental principle as is stated by the United States 23 Supreme Court and the Fifth Circuit "that a prison inmate does 24 not have a protectable liberty interest in his custodial 25 classification, and his disagreement with the classification is This subclass And as I heard Dr. Kupers testify, This class starts -- runs up against *** DAILY TRANSCRIPT *** 94 1 insufficient to establish a constitutional violation." 2 Neals v. Norwood, 59 F.3d 530 (5th Cir. 1995). 3 That's But the fundamental principle here, Your Honor, is 4 that inmates cannot demand that they be housed in any 5 particular facility or any particular unit within the facility. 6 Cases have rejected claims by inmates -- I'll cite you one this 7 morning -- this afternoon "that long-term confinement to a 8 solitary housing unit violates the Eighth Amendment." 9 Cain. Tasby v. This is a recent decision from the Middle District of 10 Louisiana. The citation is 2017 WL 4295441. 11 September. And that case involved an inmate who had been in 12 solitary confinement for 15 to 18 years. 13 a claim saying that this had caused deterioration of his mental 14 state that was -- amounted to an unconstitutional violation. 15 It was issued in And he brought it -- And the court determined in that case that the inmate 16 who had received continuous mental health treatment, who had 17 received medications that stabilized his condition, and was 18 otherwise appropriately seen by mental health professionals, 19 could not state a claim based purely on his placement in 20 segregated housing even if that placement caused mental 21 deterioration. 22 And so that's what we have in this case, Your Honor. 23 Yes, plaintiffs' own expert, Dr. Kupers, testified that 35 to 24 40 state systems used solitary housing unit for various 25 reasons. The federal government, Federal Bureau of Prisons, *** DAILY TRANSCRIPT *** 95 1 uses it. 2 that there are custodial security reasons that you would have 3 to place an inmate in long-term or short-term solitary 4 confinement. 5 Dr. Kupers acknowledged, and Warden Shaw testified, And what happens to inmates that are on Unit 5 at 6 East? 7 She prescribes, monitors, and adjusts their medications on a 8 regular basis. 9 on Unit 5 as required by their level of care, either 30 or 90 Nurse Practitioner Dunn testified at length about this. She has individual meetings with every patient 10 days. 11 immediate care, if they need it, through the sick call process, 12 and there is now an acute mental health unit where she can 13 use -- transfer an inmate to be stabilized if that becomes 14 necessary. 15 The inmates there have the ability to obtain more Again, that's not necessary in the vast majority of 16 cases, even those on isolation. The inmates are stable. 17 They're taking their medication. They are seeing their 18 therapist, and they are -- Mr. Pickering, the mental health 19 professional, testified at length that even when an inmate is 20 placed on Unit 5 for custodial reasons, he receives regular 21 rounds from a mental health professional. 22 private meetings if, in the inmate's judgment and the mental 23 health professional's judgment, is appropriate -- and Dr. -- 24 Mr. Pickering, I'm sorry, testified at length about the 25 deescalation process to avoid unnecessary uses of force on The opportunity for *** DAILY TRANSCRIPT *** 96 1 inmates at East. 2 90 percent of the time the deescalation effort was successful 3 and use of force was not required. 4 And I think he said that in his view So the proof is that -- when you turn to Unit 5, that 5 inmates do receive continuous mental health care. 6 is in the testimony here. 7 the court. 8 that the court eliminate a widely used and custodially 9 appropriate condition of confinement which is segregated This proof It's in the medical records before And this challenge comes down to a bare request 10 housing units. 11 that sort of bare prison reform claim, and neither did the 12 court in Tasby v. Cain in the Middle District of Louisiana. 13 I do not think this is the proper forum for Finally I want to turn briefly, Your Honor, back to 14 remedies because I do think that the plaintiffs in the 15 prisonwide class action have a double burden in this case, that 16 is to demonstrate that there has been a violation of the 17 deliberate indifference standard, which is very strict, and to 18 demonstrate that there is a specific single-stroke remedy that 19 the court -- if there has been a violation that the court could 20 impose to remedy that violation. 21 And the standard is -- here is not mootness, which was 22 discussed this morning, and the Gates v. Cook case from the 23 Fifth Circuit in 2004 was cited. 24 district court had made an initial determination that the 25 constitution had been violated, and on appeal the agency argued That involved a case where a *** DAILY TRANSCRIPT *** 97 1 that in the interim their efforts had mooted the injunctive 2 relief ordered by the court. 3 That is not what we have here, and the plaintiffs 4 cannot flip their burden onto the department. 5 here is plaintiffs still attempting -- and we don't think they 6 can do it -- but attempting to meet their strict burden of 7 proof. 8 in this case. 9 What we have Certainly there is no burden of proof on the defendants But their burden again requires not just proof of 10 deliberate indifference but identifying for this court a 11 single-stroke remedy like the remedy imposed in the recent 12 Fifth Circuit decision of Yates v. Collier that we discussed on 13 judgment -- motion for judgment as a matter of law. 14 case, the court identified a single-stroke remedy -- lowering 15 temperatures in a unit that was overheated -- that prison 16 officials could understand and implement and that the court 17 could enforce, if necessary. 18 In that Here we have no remedy offered at all other than 19 further proceedings: 20 MDOC to undertake analysis that may confirm that MDOC is 21 compliant with the constitution. 22 remedy. 23 these proceedings, to turn this into a liability followed by a 24 remedy proceeding. 25 The appointment of experts, paid for by That is not a single-stroke That is a very, very, very late request to bifurcate That is not how this case was tried, Your Honor. *** DAILY TRANSCRIPT *** This 98 1 case was tried as a combined proceeding at the end of which 2 plaintiffs are asking Your Honor to retire to chambers and 3 draft an injunction that addresses the complaints that they 4 have. 5 order further proceedings, appointment of further experts that 6 inevitably they'll probably find some reason to disagree with, 7 and the proliferation of these proceedings well beyond today or 8 any point at which you might issue an injunction. 9 The injunction that they've asked you to draft is to It's not appropriate to do that at this late stage, 10 and it's not the type of relief required by Rule 23, which is 11 again a precise single-stroke remedy that this court can 12 implement, the prison officials can understand, and that this 13 court can enforce later. 14 Your Honor, I want to conclude by briefly returning to 15 the Hughes v. Judd decision which I cited at the beginning of 16 my discussion about what do you do in a case like this where 17 conditions inevitably change. 18 found that conditions had changed and it sized up the proof and 19 found no evidence that simply because -- that the changes were 20 made simply -- as an effort to avoid liability or that they 21 would disappear after this litigation ended. 22 And in that case, the court And I think the same is true here. Of course, you've 23 heard proof that the prison has changed. 24 department has brought this facility -- Commissioner Hall, 25 Warden Shaw, and others have brought this facility out of a The prison -- the *** DAILY TRANSCRIPT *** 99 1 situation where it was dominated by Christopher Epps and his 2 confederate, Dr. Carl Reddix, into a situation where it is 3 greatly exceeding constitutional minimums. 4 proof that that's been done as some sort of trick. 5 done over the steady course of two, two and a half years, and 6 it's going to continue. 7 effect. 8 9 And there is no It's been I think all the proof is to that So the plaintiffs have not carried their burden in this case, Your Honor. They have not carried their burden 10 under the Eighth Amendment to demonstrate to you that inmates 11 at East are subject to cruel and unusual punishment, either in 12 the delivery of health care or in their conditions of 13 confinement. 14 demonstrate that Your Honor has any remedy, even if there are a 15 few things that you might think should be remedied. 16 there's no proof, no suggestion, of how you might do that. 17 And they've not satisfied their burden to I just -- For these reasons, we think the only option the court 18 has is to enter a judgment for the Mississippi Department of 19 Corrections finding that there is no violation of the United 20 States Constitution. 21 THE COURT: All right. Thank you. All right. 22 Johnson, you don't have much time in rebuttal. 23 think you -- you've run over your time. 24 I should give you to finish up? 25 MS. JOHNSON: Ms. How much do you How much do you think Your Honor, if you would be so generous *** DAILY TRANSCRIPT *** 100 1 to give me 10 to 15 minutes. 2 THE COURT: 3 MS. JOHNSON: 4 THE COURT: 5 MS. JOHNSON: 6 THE COURT: 7 8 Okay. I'll give you eight minutes. Yes, sir, Your Honor. All right. That will give you until 17 minutes of 1:00. MS. JOHNSON: 9 10 That's too much. Thank you, Your Honor. REBUTTAL ARGUMENT FOR THE PLAINTIFFS MS. JOHNSON: First, Your Honor, I'd like to start 11 with defendants' discussion of plaintiffs' nutrition claim. 12 Defendants offered no evidence to rebut our expert witness, 13 Diane Skipworth, regarding the nutrition claim. 14 15 16 THE COURT: Excuse me. Skip the nutrition. I'm already going to find for them on the nutrition claim. MS. JOHNSON: Yes, Your Honor. The next claim in 17 which Mr. Siler discussed was the environmental and sanitation 18 claim, and I think that there's been some confusion as to the 19 scope of that claim. 20 applies to the Housing Units 5 and 6, and particularly the 21 lighting, maintenance, sanitation, and fires that relate to the 22 conditions. 23 There is a subclass in that claim that Mr. Siler's discussion of polished hallways and gyms 24 and the like are irrelevant to that claim to the extent that 25 they are outside of Housing Units 5 and 6. The environmental *** DAILY TRANSCRIPT *** 101 1 and sanitation claim does not apply to the prison as a whole. 2 I just wanted to make that clarification. 3 Further, Your Honor, as it relates to solitary, Mr. 4 Siler and Mr. Bentley have misconstrued plaintiffs' request as 5 a per se violation or categorical bar of all use of solitary. 6 And as I indicated this morning, that's not what plaintiffs 7 have asked, and there have been instances in other states in 8 other courts where they have found that solitary confinement 9 can -- the conditions in solitary can constitute an Eighth 10 Amendment violation. 11 One of those cases includes Ruiz v. Johnson, 12 37 F.Supp. 2d 855, out of the Southern District of Texas. 13 Coleman v. Wilson, 912 F.Supp. 2d 975, from California. 14 just last week, Your Honor, the Eleventh Circuit in a case 15 found that prolonged placement in solitary confinement can 16 violate the Eighth Amendment. 17 Bryson. 18 was issued on April 5th. 19 And That case is Quintanilla v. It's number 17-14141 (11th Cir.), and that decision Next, Your Honor, related to the use of force that 20 Mr. Siler also discussed, there is a case out of the 21 Eleventh Circuit that has -- for the Eleventh Circuit that 22 has -- for the Eleventh Circuit found that "the district court 23 did not err in concluding that the policy permitting 24 nonspontaneous use of force with chemical agents against 25 mentally ill prisoners violates the constitution." *** DAILY TRANSCRIPT *** That case 102 1 2 is Thomas v. Bryant, 614 F.3d 1288. Your Honor, defendant has misconstrued some of 3 plaintiffs' claims. 4 case, it has to consider the Mississippi Department of 5 Corrections has elected to place the seriously mentally ill at 6 EMCF and the considerations and risk of harm associated with 7 that population in making its determination. 8 9 And as I said, as the court looks at this Your Honor, as it relates to the medical and mental health staffing, Mr. Bentley pointed out that the staffing 10 numbers were developed during a competitive bid process. 11 Your Honor, as a result of that competitive bid, the staffing 12 numbers were 64, but the current contractual staffing numbers 13 are 44.1. 14 Well, And, Your Honor, as you heard Dr. Perry testify, 15 there's nothing that prevents Centurion from decreasing the 16 staffing at the conclusion of this trial. 17 Shaw also testified that to the extent the correctional 18 officers have been increased, there's nothing that guarantees 19 that those officers will remain in place next week, next month, 20 or at any time in the future, and we contend that the 21 inadequate staffing constitutes a substantial risk of harm to 22 the prisoners at EMCF. 23 THE COURT: And, in fact, Warden Do you have any explanation as to why the 24 contract was apparently negotiated on a higher number and a 25 lower number of employees has been used? *** DAILY TRANSCRIPT *** 103 1 MS. JOHNSON: The testimony from Dr. Perry, Your 2 Honor, is that the department did not want to pay -- did not 3 want to pay for the 64 staffing. 4 additional 88 cents per prisoner, and the department, after 5 awarding the contract, stated that it would not. 6 Honor may recall, there was a series of e-mails and 7 negotiations of that staffing that ultimately led it to the 8 44.1 number pictured on the screen, if Your Honor may recall. 9 THE COURT: It would have been an And as Your But was the cost of the contract reduced 10 or is the state paying full contract price for 60 employees and 11 only getting 40? 12 MS. JOHNSON: The state -- the price that the state 13 pays is based on 44 positions at EMCF, even though it awarded 14 the contract based on Centurion's bid that 64.6 positions were 15 needed at EMCF to provide the appropriate basic care. 16 17 18 THE COURT: All right. I remember those figures, but I did not understand them. MS. JOHNSON: Your Honor, in closing I would just ask 19 the court to consider the plaintiffs' seven claims and that the 20 substantial risk of harm that exists at EMCF we have discussed 21 and we will more fully provide to the court. 22 that defendants urge that we have not provided the court with 23 remedies, the court is able to ask the parties, once a 24 liability finding is made, to look at remedies. 25 appoint a monitor as has been done in several PLRA cases, *** DAILY TRANSCRIPT *** To the extent They can 104 1 including cases that have -- regarding the Walnut Grove 2 Correctional Facility, the Forrest County Juvenile Detention 3 Center and the Henley-Young Juvenile Justice Center. 4 typical for judges to appoint a monitor or use a subject matter 5 expert. 6 Your Honor, I'm not trying to run EMCF. It is I don't have 7 a desire to. 8 by someone with the expertise to reduce the substantial risk of 9 harm that currently faces all of the prisoners who are housed 10 11 there. But I do recognize that it needs to be operated Thank you, Your Honor. THE COURT: All right. Thank you. If the lawyers 12 would like to provide the court with a list of cases which you 13 have cited here today in your arguments with a one-sentence 14 synopsis of what you think the case means or at least what you 15 think you want to get out of the case, you may do by Friday of 16 this week. 17 All right. Is there anything further that the court 18 needs to address this morning? 19 writing a written opinion. 20 that done. 21 have done an ample job of briefing the issues, and it's just a 22 matter that the court's going to have to pull a substantial 23 record into an opinion. 24 do that for me, but I guess I had better do it myself. 25 I will -- I'm planning on It will take me several days to get I do not need briefs on this. I think both sides I know that each side will be happy to Is there anything further that the court needs to *** DAILY TRANSCRIPT *** 105 1 address here today? 2 MS. JOHNSON: Your Honor, we would just ask that the 3 record be held open until Friday to allow the parties to 4 complete the deposition designations and submit those to the 5 court. 6 THE COURT: 7 MR. BALABAN: That's fine. Yes. Good afternoon, Your Honor, I began the 8 day and it looks like I'm going to be ending it. 9 to be heard briefly with regard to posttrial briefing, if we 10 I would like could, Your Honor. 11 THE COURT: 12 MR. BALABAN: 13 THE COURT: No, sir. Thank you Your Honor. I don't need any more briefing. Thank 14 you. 15 will stand in recess and I will have an opinion as soon as I 16 can get it completed. 17 (Trial Concluded) All right. If there is nothing else for the court, we 18 19 20 21 22 23 24 25 *** DAILY TRANSCRIPT *** 106 CERTIFICATE OF REPORTER 1 2 3 I, CHERIE GALLASPY BOND, Official Court Reporter, United 4 States District Court, Southern District of Mississippi, do 5 hereby certify that the above and foregoing pages contain a 6 full, true and correct transcript of the proceedings had in the 7 aforenamed case at the time and place indicated, which 8 proceedings were recorded by me to the best of my skill and 9 ability. 10 I certify that the transcript fees and format comply 11 with those prescribed by the Court and Judicial Conference of 12 the United States. 13 14 This the 9th day of April, 2018. 15 16 17 s/V{xÜ x ZA UÉÇw Cherie G. Bond Court Reporter 18 19 20 21 22 23 24 25 *** DAILY TRANSCRIPT ***