Another jail "postcard-only" mail policy ruled UNCONSTITUTIONAL: when will Arpaio come around?

Of course, no matter how many times this postcard only policy is found to be unconstitutional, Arpaio won't change his mail policy until the courts specifically make him do so, under a challenge. For those not aware, here are the basics of the MCSO mail policy:

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Inmate Mail

 
All incoming mail, with the exception of legal mail, must be standard postcards.
This is to ensure the safety and security of jail facilities, inmates, and staff.

Acceptable STANDARD Postcards

(Italics are mine)  

Written in blue or black ink only (no felt tip or roller balls - must be ballpoint!)
Metered or stamps (they'll just cut off the stamp and your message first, 

if you don't get the pre-stamped cards )

Minimum size requirements: 3.5 x 4.25 inches
Maximum allowable postcard size: 4.25 x 6 inches
Stamps are removed prior to inmate receiving mail

Unacceptable Postcards

 

Defaced or altered postcards
No plastics or wrappings on postcard
Postcards marked with paint, crayon or marker or ink (only black or blue ink is accepted)
Postcards with labels or stickers
Postcards with any biohazards, perfumes or lipstick
Postcards with watermarks or stains
Postcards depicting nudity, weapons or gang

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 Here's part of the 14-piece "birthday card" I had to send a girl who turned 17 this summer in Arpaio's solitary hell:

They usually lose one of my cards when I write long letters like this...as they did in this case, of course. Someone -  inside or out - needs to sue MCSO over this policy, or it just wont change. I hope they do soon.

Prison Legal News is an excellent resource for prisoners and their families, by the way. A single print subscription is only $35 a year, which is well worth it - it can save your loved ones life, so send it to them if you can. They also have a good selection of books - the Prisoner's Self-Help Litigation Manual ($39.95) is especially useful if your loved one keeps getting screwed by the system. 

Or download and print the National Lawyers Guild Jailhouse Lawyer's Handbook for free, then mail it in - I've sent hundreds of those in myself! Dont forget to connect them with the US District court if they are thinking about suing. Just because Parsons v Ryan is settled Corizon wont suddenly start treating everyone properly - they'll still only attend to those prisoners they absolutely HAVE to spend money on. So, prisoners need to know how and be prepared to actually file suit if they really plan to fight the DOC - bluffing will just get them hurt.

Here's the postcard-only ruling out of the State of Washington last month. Hooray for Prison Legal News!!!

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PRISON LEGAL NEWS, Plaintiff,

v. LEWIS COUNTY, et al., Defendants.

 Case No. 14-cv-05304 JRC.      

United States District Court, W.D. Washington, Tacoma.

September 10, 2014.

ORDER

J. RICHARD CREATURA, Magistrate Judge.

This Court has jurisdiction under 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Magistrate Judge Rule MJR 13. See also Joint Status Report, Dkt. 49 and Minute Order, Dkt. 50.


Prison Legal News seeks an injunction that would prohibit Lewis County Jail from restricting incoming and outgoing prisoner mail to postcards only. Dkt. 10. At various times, Lewis County Jail has chosen to enforce a policy imposing such a restriction and at other times has chosen not to enforce this restriction. Despite representing to the Court that it has changed its policy and is now allowing news sources to distribute both publications and other forms of correspondence to prisoners, there is substantial evidence to believe that this policy has not yet been adopted.

First Amendment rights are too important to be subject to such arbitrariness. When it comes to access to news and information, prisoners and those who correspond with them should be afforded the opportunity to send and receive mail, and if mail is refused by the Jail, prisoners and persons attempting to communicate with prisoners should receive notice and a fair and timely process for appealing the Jail's refusal to deliver the mail.


Therefore, this Court GRANTS plaintiff's motion for a preliminary injunction, as will be further delineated below.

BACKGROUND


Plaintiff Prison Legal News ("PLN") is published by the Human Rights Defense Center ("HRDC"), a Washington Non-Profit Corporation. Dkt. 1 at ¶ 3.1 HRDC's mission is public education, prisoner education, advocacy, and outreach in support of the rights of prisoners and in furtherance of basic human rights. Id. PLN publishes and distributes a monthly journal of corrections news and analysis, as well as books about the criminal justice system and legal issues affecting prisoners, to prisoners, lawyers, courts, libraries, and the public throughout the country. Id.


From September 2013 through October 2013, PLN mailed to prisoners of Lewis County Jail personally addressed envelopes containing informational brochures about subscribing to PLN, copies of a catalog of books that PLN offers for sale, detailed book offers, and court opinions. Dkt. 12 at ¶¶10-13, Exhibits A through SS (censored mail), Exhibits TT and UU (exemplars). The Jail rejected and returned the mail, totaling forty-five pieces of mail. Dkt. 12 at ¶¶12-13, Exhibits A through SS. On forty of the returned items, the Jail staff stamped "RETURN TO SENDER This facility accepts postcards only." Dkt. 12 at ¶¶ 12-13, Exhibits E through RR. On three items Jail staff stamped "Returned to Sender REASON CHECKED BELOW" with "Unauthorized Mail" checked or circled.

Dkt. 12 at ¶¶ 12-13, Exhibits B through D. On two of the items, Jail staff stamped both "RETURN TO SENDER This facility accepts postcards only" and "Returned to Sender REASON CHECKED BELOW" with "Unauthorized Mail" circled; and, on one of these double stamped items, Jail staff additionally stamped "RETURN TO SENDER.



UNDELIVERABLE AS ADDRESSED." Dkt. 12 at ¶¶ 12-13, Exhibits A and SS. The Jail also has rejected materials printed from PLN's website that were sent to a prisoner by a family member, such as one rejected in May, 2014. Dkt. 33 at ¶ 5, Exhibit B. The Jail rejects mail sent from family members and friends if not in postcard form. Dkt. 34, Exhibits 1-3.


Defendants indicate that the Jail adopted its official mail policy on February 3, 2010, and has officially adopted revisions as late as September 4, 2012. Dkt. 24, Exhibit 2. This policy restricts all ingoing and outgoing prisoner personal mail to postcards only. Id. at page 2. The policy also contains a "Publications" section that allows for the delivery of incoming soft covered magazines. Id. at page 3. The Jail has also presented a draft policy that it claims to have put into practice on June 2, 2014. Dkt. 71 at ¶ 2. This draft policy contains a separate section regarding publishers and publications providing that correspondence between publishers and prisoners will not be censored under the postcard-only policy. Dkt. 44, Exhibit 2 at page 2. Despite this assertion, defendants admit that this draft policy has not been widely disseminated nor officially adopted by the Jail. Dkt. 71 at ¶ 2; Dkt. 61, Exhibit 15 at page 18. The official policy of the Jail remains the policy discussed above that was adopted February 3, 2010 and revised as late as September 4, 2012. Dkt. 61, Exhibit 15 at page 18. Although this official policy contains a subsection under the section titled "Incoming Mail" that allows for the delivery of incoming soft covered magazines, it does not specifically address general correspondence between publishers and prisoners in any other form. Dkt. 24, Exhibit 2 at page 3. On its face, the correspondence PLN claims was wrongfully censored by defendants does not qualify under the publications subsection of the Jail's official policy and is therefore subject to the postcard-only restriction applied to all personal mail. Id. at page 2-3.


PROCEDURAL BACKGROUND


Plaintiff filed a Complaint on April 11, 2014, alleging that Lewis County Jail's post-card only rule violated PLN's and prisoner-addressees' protected free speech rights, as well as the free speech rights of others who correspond with, or attempt to correspond with, prisoners. Dkt. 1 at ¶¶4.13, 4.14, 4.36-4.39, 5.2. Plaintiff also alleges that when defendants rejected mail based on this post-card-only policy, Lewis County Jail failed to provide due process notice and opportunity for appeal to PLN and other senders and receivers of the rejected prison mail. Dkt. 1 at ¶¶4.18-4.21, 4.40-4.41, 5.6.


Plaintiff filed a motion for preliminary injunction on April 21, 2014, requesting that this Court enjoin the postcard-only rule and require notice and opportunity to be heard when mail is rejected. Dkt. 10. That matter is currently before the Court.

DISCUSSION


Standing. As a preliminary matter, plaintiff seeks to assert the First Amendment free speech rights and Fourteenth Amendment due process rights not only on its own behalf, but also on behalf of prisoners and other persons who send and receive mail to and from prisoners in the Jail. Dkt. 1 at ¶¶ 4.13, 4.16, 4.18, 4.19, 4.36-4.41, 5.2, 5.6; Dkt. 10 at page 2.


To satisfy standing requirements, a plaintiff must show: (1) that it has suffered an "injury in fact" that is "(a) concrete and particularized and (b) `actual or imminent, not `conjectural' or `hypothetical;''" (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is "`likely', as opposed to merely `speculative', that the injury will be `redressed by a favorable decision.'" See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (footnote and all citations omitted).


PLN has met each of these requirements. First, PLN has shown that the jail actually rejected mail sent by plaintiff to prisoners, and has set forth concrete and particularized examples of those rejections. Second, the action is fairly traceable to the Jail's postcard-only policy as the policy was in place at the time PLN's mail was rejected and was used as the basis for rejecting this mail. And, third, as will be discussed below, plaintiff has demonstrated that further injury will be redressed by a favorable decision on the merits. Although defendants assert that its postcard-only policy is no longer enforced, the policy remains in place and could be used again to reject mail if it chose to enforce the policy. Therefore, this Court concludes that plaintiff has standing to bring this motion for preliminary injunction on its own behalf. See id.


Further, plaintiff has standing to assert the rights of third parties who are not before the Court.

Under the overbreadth doctrine, a plaintiff "may challenge an overly broad statute or regulation by showing that it may inhibit the First Amendment rights of individuals who are not before the court." 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1112 (9th Cir. 1999) (citations omitted). The requirements to satisfy overbreadth standing are injury-in-fact and the ability to frame the issues in the case satisfactorily. Id. (citing Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984)).


First, the current official policy threatens the ability of those other than PLN to send information packs and other non postcard materials to prisoners while also failing to provide notice of the opportunity to appeal; and, such restriction has occurred, for instance, to a partner of a prisoner who shares a child with the prisoner (see Dkt. 34 at Exhibits 1 and 3) as well as to a mother of a prisoner (see Dkt. 34 at Exhibits 2 and 3). Thus, those other than PLN have been injured-in-fact.


Second, PLN is certainly able to frame the issues on behalf of prisoners and other correspondents. PLN has vigorously advocated on behalf of prisoners in previous litigation in this Circuit. See, e.g., Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005); Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001); Prison Legal News v. Columbia County, Dock. No. 3:12-CV-00071-SI, 2012 WL 1936108, 2012 U.S. Dist. LEXIS 74030 (D. Or. May 29, 2012) (unpublished opinion); see also Dkt. 34. Furthermore, PLN has offered multiple declarations from prisoners and their correspondents demonstrating that PLN has invested significant time in determining how the Jail's policy has affected prisoners and their correspondents. See Dkt. 30; see also Dkt. 34. Finally, PLN has framed its argument to address the allegedly overbroad nature of the mail policy's postcard-only restriction and lack of procedural due process safeguards while presenting specific alleged effects of the policy on prisoners and their correspondents in addition to the effect on PLN alone. PLN has demonstrated advocacy on behalf of prisoners and their other correspondents; and has demonstrated that it is able to represent adequately prisoners and their correspondents' interests in this litigation. Therefore, PLN has standing to assert the rights of the prisoners and other potential senders and recipients of prison mail.


While case law indicates that a free speech claim like plaintiff's is an appropriate setting for the application of the overbreadth doctrine, the doctrine does not appear to have been used by other courts to cover claims such as plaintiff's due process claims. The Supreme Court has "recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, and, generally, on the strength of specific reasons weighty enough to overcome our well-founded reticence." Sabri v. United States, 541 U.S. 600, 609-10 (2004) (citations omitted). Such settings include free speech, the right to travel, abortion, and legislation under § 5 of the Fourteenth Amendment. Id (citing Broadrick v. Oklahoma, 413 U.S. 601 (1973); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Stenberg v. Carhart, 530 U.S. 914, 938-46 (2000); City of Boerne v. Flores, 521 U.S. 507, 532-35 (1997)) (other citations omitted). The overbreadth doctrine should not be extended beyond these settings without good reason. Sabri, supra, 541 U.S. at 610. Nonetheless, the Court finds that the same evidence supports PLN's ability to properly frame both First and Fourteenth Amendment interests of prisoners and other correspondents. Additionally, PLN has indicated injury-in-fact arising from the violation of both its First and Fourteenth Amendment rights. Therefore, the Court concludes that the equal existence of these factors in regards to both constitutional rights, coupled with the already appropriate application of the overbreadth doctrine to plaintiff's free speech claim, constitutes good reason for extending the doctrine to plaintiff's Fourteenth Amendment due process claims as well. Plaintiff may assert these claims on behalf of prisoners and other correspondents whose mail is restricted by the Jail's postcard-only policy.


Mootness. Also as a preliminary matter, defendants claim that the several instances cited by plaintiff when its mail was rejected were isolated instances that were the result of one mail handler's misunderstanding and that these rejections will not likely happen again. Therefore, according to defendants, this matter is moot and should not be the subject of a preliminary injunction. "It is well settled that `a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. . . . . If it did, the courts would be compelled to leave `the defendant. . . . free to return to his old ways.''" Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 289 n.10 (1982) (citing United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953))) (internal citations omitted).


A defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, supra, 528 U.S. at 189 (citing United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)). Accordingly, a mere change in policy ante litem is not sufficient to moot a case unless it clearly shows that the alleged wrong will not reasonably recur.


Defendants have not met this heavy burden. For instance, defendants acknowledge that at the time of the incident, the Jail's policy had a postcard-only policy, but argue that it chose not to enforce it against PLN. Since PLN's mail was rejected on several instances, it is clear that the Jail's policy of not following its policy does not negate a potential impact on PLN in the future.

Defendants also argue that the draft policy will cure the problem. But, for unknown reasons, it has not yet been adopted. This fact, as well, leads the Court to conclude that it is not "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." See Friends of the Earth, supra, 528 U.S. at 189 (citing Concentrated Phosphate Export Assn., Inc., supra, 393 U.S. at 203).


Furthermore, even the draft policy presented by the Jail is problematic. It includes a "Publications/Other mail" section in addition to the categories of "Personal" and "Privileged" mail.

Dkt. 44, Exhibit 2. This newly drafted section suggests that "verifiable business, banks, publishers, etc. shall not be subject to postcard rules," but remains unclear about what organizations actually qualify under this exception. Dkt. 45 at ¶ 5, Exhibit 2 at page 2. This is particularly apparent where the next sentence of the same section offers a slightly expanded list of correspondents who might qualify under the exception including publishers, "verifiable business[es], government office[s], bank[s], book store[s], etc." Id. (emphasis added). This draft version of the new policy does far too little to alleviate concerns regarding the possibility that the Jail will reject mail from PLN or other correspondents in the future, including correspondents such as family and friends, whose rights are also being properly asserted by PLN, as noted above. Furthermore, defendants' assertion that the harm formerly done to PLN resulted from a "misunderstanding" of the current policy only increases concerns that this vague new section could be applied arbitrarily in the future.


Regarding PLN's due process claims, the draft policy includes a statement that rejected mail "will be returned to sender with a copy of the Notice of Withheld Material. The withheld material notice shall include contact information and direction for due process," and "[t]he inmate. . . . will receive a copy of the Notice of Withheld Material." Dkt. 45, Exhibit 2 at page 3. PLN claims that these measures are still inadequate safeguards of its own due process rights, the rights of prisoners, and the rights of other correspondents. The proposed policy does not facially require notice of the reason for rejecting the mail by Jail staff. See id. And, it vaguely addresses notice of an appeals process for those sending mail to prisoners, and neglects to indicate if prisoners will be able to appeal the censorship of their mail by Jail staff. See id. Furthermore, there is nothing in the policy that mentions notification or the right to appeal the rejection of outgoing mail by Jail staff. See id.


Accordingly, several areas of dispute remain unresolved. Defendants have not satisfied "the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." See Friends of the Earth, supra, 528 U.S. at 189 (citing Concentrated Phosphate Export Assn., Inc., 393 U.S. at 203). Therefore, this motion for preliminary injunction is not moot.


Because plaintiff has standing to assert its rights and the rights of third parties, and because this matter is not moot, the Court will now address the standards for granting a preliminary injunction, as set forth in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Because plaintiff is seeking a preliminary injunction regarding both the Jail's post-card only policy and the Jail's notice and appeals procedure for rejected mail, and those policies potentially impact separate constitutionally protected rights, the Court will deal with each policy separately.


Standards for preliminary injunction. A plaintiff seeking a preliminary injunction must clearly establish: (1) that plaintiff is likely to succeed on the merits, (2) that plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in plaintiff's favor, and (4) that the injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted); Fed. R. Civ. P. 65(a); cf. M.R. v. Dreyfus, 663 F.3d 1100, 1108 (9th Cir. 2011) (the Court may grant a preliminary injunction "if there is a likelihood of irreparable injury to the plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest"); The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008), overturned by Winter, supra, 555 U.S. at 22.


1. The Jail's postcard-only policy. The Jail's policy regarding personal mail states, in part, "Incoming and outgoing personal mail shall be postcard media only." Dkt. 24, Exhibit 2 at page 2. PLN alleges that defendants violated its free speech rights and those of other publishers and correspondents by limiting prisoner personal mail to postcards only and by rejecting informational brochure packs and court opinions that PLN mailed to prisoners in envelopes. Dkt. 1 at ¶¶ 4.13-4.14, 4.26-4.27, 4.33. The Jail's policy provides an exception for "Publications" as follows: "Publications are allowed for inmates. Publications must come directly from a publisher or approved book store and must be soft covered. Publications must be individually addressed." Dkt. 24, Exhibit 2 at page 3. The policy does not define a "publication," but it is clear that it was not interpreted by the Jail to include the informational brochure packets that plaintiff sent to prisoners and were rejected.


Under the first factor of the test in Winter, plaintiff has the burden of demonstrating that it is likely to succeed on the merits. See Winter, supra, 555 U.S. at 20. Prisoners and their correspondents have a First Amendment interest in sending each other mail. The Ninth Circuit has "repeatedly recognized that publishers and inmates have a First Amendment interest in communicating with each other." Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir. 2010) (citing Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005); Thornburgh v. Abbott, 490 U.S. 401, 408 (1989)).

Also, prison and jail walls do not "bar free citizens from exercising their own constitutional rights by reaching out to those on the `inside.'" Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (citing Turner v. Safley, 482 U.S. 78, 94-99 (1987); Bell v. Wolfish, 441 U.S. 520 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817 (1974)) (internal citation omitted).


This First Amendment interest extends to receiving mail as well as sending it. "It is now well established that the Constitution protects the right to receive information and ideas. `This freedom [of speech and press]. . . . necessarily protects the right to receive. . . .'" Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citing Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-08 (1965) (Brennan, J., concurring); cf. Pierce v. Society of the Sisters, 268 U.S. 510 (1925)). Accordingly, plaintiff has a First Amendment interest in both sending correspondence to prisoners and receiving correspondence in return. Additionally, prisoners and their other correspondents share the same constitutional interest.


Notwithstanding the implication of a First Amendment interest, "restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system. . . ." Pell v. Procunier, 417 U.S. 817, 822 (1974). In Turner v. Safley, the Supreme Court determined that when prison regulations impinge on constitutional interests, the regulations are valid if "reasonably related to legitimate penological interests." 482 U.S. 78, 89 (1987), superceded by statute, 42 U.S.C. § 2000cc-1(a)(1)-(2), with respect to burdens on religious exercise, as stated in Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005) (citation and footnote omitted). The Court provided a four-factor test to evaluate "the reasonableness of a prison or jail regulation impinging on a constitutional right." Hrdlicka, supra, 631 F.3d at 1049. This test considers:


(1) whether the regulation is rationally related to a legitimate and neutral governmental objective, (2) whether there are alternative avenues that remain open to the inmates to exercise the right, (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.


Prison Legal News v. Lehman, 272 F.Supp.2d 1151, 1155 (W.D. Wash. 2003) (quoting Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, supra, 482 U.S. at 89-90)). Not only do these factors apply in evaluating regulations that govern prisoners' right to receive mail, but they also apply to regulations affecting correspondents' "rights to send materials to prisoners." Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Thornburgh, supra, 490 U.S. at 413).


The first Turner factor requires this Court to determine if the postcard-only policy is rationally related to a legitimate and neutral governmental objective. See Turner, supra, 482 U.S. at 89-90 (citations omitted). Defendants assert that the postcard-only policy is aimed at improving jail security by reducing the importation of contraband, the amount of resources spent screening mail, and prisoner misuse of the mailing system. Dkt. 25 at ¶¶ 3, 4. Prison security is undeniably a legitimate penological objective. See Thornburg, supra, 490 U.S. at 415. The policy also is neutral because it draws a distinction between postcards and other forms of mail "solely on the basis of their potential implications for prison security. . . ." Id. (footnote omitted).


The burden of showing a rational relationship lies with defendants, and is initially satisfied by presenting an "intuitive, common-sense connection" between the objective and the regulation. Frost v. Symington, 197 F.3d 348, 354, 356-57 (9th Cir. 1999). If PLN is able to show sufficient evidence refuting the connection, defendants must additionally present enough evidence "to show that the connection is not so `remote as to render the policy arbitrary or irrational.'" Id. (quoting Mauro v. Arpaio, 188 F 3.d 1054, 1060 (9th Cir. 1999) (quoting Turner, supra, 428 U.S. at 89-90 and Amatel v. Reno, 156 F.3d 192, 200-01 (D.C. Cir. 1998))).


Here, defendants indicate that "[i]t is simply more effective to visually scan a postcard for contraband and other issues than it is to scan a closed envelope, remove its contents, and review the same for all of the issues of which our staff has to be aware. . . ." Dkt. 25 at ¶ 10. Such issues include concerns about materials like anthrax, weapons, secreted drugs, coded messages, or even bodily fluids being sent through the mail. Id. at ¶¶ 2, 3. Additionally, defendants indicate that the postcard-only policy reduces the time that staff spends screening mail by half. Id. at ¶ 4. This showing sufficiently establishes a common-sense connection between the postcard-only policy and the asserted objective. This factor weighs in favor of defendants.


The second Turner factor considers whether or not "`other avenues' remain available for the exercise of the asserted right." Turner, supra, 482 U.S. at 90 (citations omitted). In evaluating this factor, alternative means need not be ideal, but they must be reasonably available. See Overton v. Bazzetta, 539 U.S. 126, 135 (2003). Nonetheless, "`the right' in question must be viewed sensibly and expansively." Thornburgh, supra, 490 U.S. at 417 (citing Turner, supra, 482 U.S. 78; O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)). Defendants contend that alternate avenues exist to exercise free speech rights because other channels remain open for contacting prisoners, like sending emails, making phone calls, or utilizing regular visitation. See Dkt. 45 at ¶¶ 9, 11.


On this point, the facts indicate otherwise. The postcard-only policy, on its face, prevents PLN from sending materials that are not easily transferable to a postcard, such as court opinions and informational packets. PLN has shown that the information included in these mailings cannot be formatted to fit onto a postcard. Dkt. 12 at ¶ 17, Exhibits TT, UU. For this reason and due to PLN's necessary reliance on such materials to secure new subscribers and its continued vitality, the barriers implicated by the policy are not an insubstantial hardship. See id.


The policy also prevents family members from sending items like photographs, copies of bills, and medical information. See, e.g., Dkt. 34. None of these things can be easily replaced by telephone calls or regular visitation. It has been recognized that such communication with family and friends "advances rather than retards the goal of rehabilitation. . . ." Procunier v. Martinez, 416 U.S. 396, 412-13 (1974) (quoting Policy Statement 7300.1A of the Federal Bureau of Prisons (the policy "recognized that any need for restrictions arises primarily from considerations of order and security rather than rehabilitation: `Constructive, wholesome contact with the community is a valuable therapeutic tool in the overall corrections process'"); Policy Guideline of the Association of State Correctional Administrators of August 23, 1972 (the policy guideline "echoes the view that personal correspondence by prison inmates is a generally wholesome activity: `Correspondence with members of an inmate's family, close friends, associates and organizations is beneficial to the morale of all confined persons and may form the basis for good adjustment in the institution and the community'")) (footnote omitted), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 407, 413-16, 419 (1989) (noting the "undoubtedly" legitimate claim to prison access by "families and friends of prisoners who seek to sustain relationships with them") (citations omitted).


The postcard-only policy drastically reduces prisoners' and other correspondents' ability to communicate. It is more than a mere inconvenience and becomes a substantial barrier to First Amendment rights. Incarceration does not "form a barrier separating prison inmates [or free citizens] from the protections of the Constitution. . . ." Thornburgh, supra, 490 U.S. at 407 (citing Turner, supra, 482 U.S. at 84, 94-99; Bell v. Wolfish, 441 U.S. 520 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817 (1974)). Accordingly, the second Turner factor favors PLN as "`the right' in question must be viewed sensibly and expansively." Id. at 417 (citing Turner, supra, 482 U.S. 78; O'Lone, supra, 482 U.S. 342).


The third Turner factor considers the impact that "accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." Turner, supra, 482 U.S. at 90. Because of the high likelihood that even the smallest changes will have some "ramification of the liberty of others or on the use of the prison's limited resources[,]" this third factor weighs most heavily when "accommodation of an asserted right will have a significant `ripple effect' on fellow inmates or on prison staff." Id. Also, "the policies followed at other well-run institutions [are] relevant to a determination of the need for a particular type of restriction." Martinez, supra, 416 U.S. at 414 n.14, overruled on other grounds, Thornburgh, supra, 490 U.S. 401; see also Morrison v. Hall, 261 F.3d 896, 905 (9th Cir. 2001) (citing Martinez, supra, 416 U.S. at 414 n.14, overruled on other grounds, Thornburgh, supra, 490 U.S. 401).


Defendants state that the postcard-only policy reduces by half the time that staff members spend screening mail, but PLN aptly raises important questions concerning the actual amount of time that is saved. Compare Dkt. 25 at ¶ 4 with Dkt. 34 at ¶¶ 11-12. PLN questions the methods by which this figure was obtained. Dkt. 34 at ¶¶ 11-12. Also, PLN contends that the time necessary to review the mailing, mark the reason for its rejection, and attach a notice regarding an option to appeal the decision arguably would be no greater than the time necessary to open and inspect the contents of the envelope for contraband and send it on to the intended recipient. Defendants' assertion regarding the impact on its budget is simply not well documented nor supported by substantial quantitative and qualitative evidence. Instead, it seems to be based entirely on conjecture, rather than analysis and evidence. Therefore, without more, this Court cannot ascribe substantial weight to this assertion. Accordingly, the third Turner factor supports PLN's argument because defendants have failed to demonstrate that accommodating these First Amendment rights will have a significant impact on other guards and prisoners or on the allocation of prison resources.


In addition, PLN also has identified numerous prison and jail systems that do not enforce a postcard-only policy, but instead perform mail inspections, as Lewis County Jail has done in the past. Such systems include the Washington Department of Corrections ("WDOC"), the Bureau of Prisons, King County Jail, Pierce County Jail, and Spokane County Jail. Dkt. 10 at page 18. In contrast, defendants indirectly refer to two jail systems that likewise employ postcard-only policies. See Dkt. 22 at pages 3, 10-11. However, the prevalence of the alternative policies allowing for enveloped mail among "well-run institutions" suggests that postcard-only policies do not increase efficiency enough to result in their widespread adoption.


The final Turner factor addresses if "the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials." Cook, supra, 238 F.3d at 1149 (citing Turner, supra, 482 U.S. at 89-90). This factor should not be mistaken for a least restrictive alternative analysis; prisons need not always adopt the least restrictive alternative. See Turner, supra, 482 U.S. at 90-91 (citations omitted). However, courts may consider "an alternative that fully accommodates the [asserted] rights at de minimis cost to valid penological interests" as evidence that the policy unreasonably infringes upon First Amendment rights. Id. at 91.


As discussed above, PLN has indicated that simply opening and inspecting enveloped mail is a ready alternative to Lewis County Jail's postcard-only policy. This was the policy employed previously by Lewis County Jail and the Jail has reported no incidents of misconduct where the resulting danger would have increased had the jail allowed envelopes and letters. Also, defendants have failed to show that inspecting enveloped letters instead of outright rejecting them will be difficult or will result in an undue burden on administrative costs. The fact that systems like the Bureau of Prisons, the WDOC, and large county jails in the immediate region all accommodate enveloped mail without compromised security evidences that the postcard-only policy is an exaggerated response to the potential dangers that accompany the postal service.

Dkt. 10 at 18; see Morrison, supra, 261 F.3d at 905 (finding that alternative "policies followed at other well-run institutions" evidenced that easy and obvious alternatives existed to the challenged regulation) (citations omitted). In light of these other institutions', and Lewis County Jail's own successful past use of a letter inspecting policy, the fourth factor suggests that the postcard-only policy is an exaggerated response by prison officials, thus weighing in favor of PLN's position.


In summary, although defendants succeed in stating a "rational" relationship between the postcard-only policy and legitimate penological interests, the remaining Turner factors weigh heavily in favor of PLN. This "rational" relationship is insufficient to justify such a substantial barrier on First Amendment rights. Therefore, plaintiff has demonstrated that it likely will succeed on the merits of its First Amendment claims, satisfying the first prong of the Winter test. See Winter, supra, 555 U.S. at 20.


Under the second prong in Winter, plaintiff has the burden of proving that it is likely to suffer irreparable harm in the absence of preliminary relief. Winter, supra, 555 U.S. at 20. To meet this burden, it is well recognized that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrods v. Burns, 427 U.S. 347, 373 (1976) (citing New York Times Co. v. United States, 403 U.S. 713 (1971) (footnote omitted)); see also Klein v. City of San Clemente, 584 F.3d 1196, 1207-08 (9th Cir. 2009). However, the fact of past injury, while presumably affording a plaintiff standing to claim damages, "does nothing to establish a real and immediate threat that he would again" suffer similar injury in the future. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).


As discussed above, see supra, Mootness section, the proposed change in the Jail's policy does too little to alleviate the Court's concerns regarding the possibility that the Jail will reject mail from PLN or other correspondents in the future. Due to the vagueness of the policy in regards to who qualifies as a "publisher/other," the policy on its face could be applied differently to nearly identical organizations resulting in the arbitrary denial of plaintiff's right to free speech.

Additionally, other personal mail remains restricted to postcards only, preventing communications between prisoners and family or other correspondents. Therefore, this Court concludes that the Jail's postcard-only policy is likely to cause further irreparable injury in the future.


The third Winter test, that the balance of equities tips in plaintiff's favor, is very similar in application to the weighing of interests that the Court already has conducted under Turner. Compare Winter v. Natural Res. Def. Council, Inc., supra, 555 U.S. 20 with Turner v. Safley, supra, 482 U.S. at 89-91. Therefore, the Court simply notes here that analysis of the postcardonly policy under the Turner factors establishes that the balance of equities tips in favor of plaintiff. Considering that the Jail previously has allowed enveloped mail, and due to a lack of evidence showing that a return to this policy would cause inordinate harm or difficulty, the Court concludes that the Jail's postcard-only policy cannot justify the dramatic impact on plaintiff's, prisoners', and other correspondents' First Amendment rights.


The final test under Winter is whether or not the injunction is in the public interest. Winter, supra, 555 U.S. at 20. "The public interest primarily addresses [the] impact on nonparties rather than parties." Sammartano v. First Judicial Dist. Court, in & for County of Carson City, 303 F.3d 959, 974 (9th Cir. 2002), overruled on other grounds, Winter, supra, 555 U.S. at 22. Here, an injunction would not only benefit PLN, but it also would directly benefit other publishers similarly situated as well as other members of the public who wish to communicate with prisoners through written correspondence. Additionally, because communication with family and friends "advances rather than retards the goal of rehabilitation," such an injunction would benefit the public generally. Martinez, supra, 416 U.S. at 412-13 (footnote and quotations omitted), overruled on other grounds, Thornburgh, supra, 490 U.S. at 407 (noting the "undoubtedly" legitimate claim to prison access by "families and friends of prisoners who seek to sustain relationships with them") (citations omitted).


In summary, plaintiff has satisfied each of the prongs set forth in Winter, and is therefore entitled to an injunction regarding the postcard-only policy. The Court still needs to address the form of such an injunction. Plaintiff proposes that this Court order a mandatory injunction. "`A mandatory injunction orders a responsible party to take action,' while `[a] prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits.'" Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 2014 U.S. App. LEXIS 12746 at *13-*14 (9th Cir. 2014) (citing Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009) (internal quotation marks and alteration omitted), overruled on other grounds, Winter, supra, 555 U.S. at 22; see also Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 997-98 (9th Cir. 2011)). In the context of an injunction, "the `status quo' refers to the legally relevant relationship between the parties before the controversy arose." Id. at *13 (citing McCormack v. Hiedeman, 694 F.3d 1004, 1020 (9th Cir. 2012)). Policy changes in response to litigation are an affirmative change of the status quo. See id. ("By revising their policy in response to DACA, Defendants affirmatively changed this status quo. The district court erred in defining the status quo ante litem. . . .").


The Court has been provided several options by the parties. Rather than delineating all aspects of a mail policy, the most straight forward approach is simply to prohibit that which is unconstitutional. Therefore, the Court preliminarily enjoins defendants from restricting incoming and outgoing prisoner mail to postcards only, and orders defendants not to refuse to deliver or process prisoner personal mail on the ground that it is in a form other than a postcard. Any policy or practice that does not conform with this restriction is enjoined during the pendency of this action or until further order of this Court.

2. The Jail's notice and appeals procedure for rejected mail.


Plaintiff further alleges that by rejecting mail without providing information regarding a right to appeal, defendants violated plaintiff's, prisoners', and other correspondents' Fourteenth Amendment rights to due process. Dkt. 1 at ¶5.6. Plaintiff seeks to obtain an injunction delineating the due process procedure to be followed by defendants during the pendency of these proceedings. Dkt. 10 at pages 20-24.


In order to protect the Fourteenth Amendment rights of prisoners and their correspondents, "the decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards." Martinez, supra, 416 U.S. at 417, overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989). Inmates have "a Fourteenth Amendment due process liberty interest in receiving notice that [their] incoming mail is being withheld by prison authorities." Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999) (citations omitted).

A preliminary injunction regarding the Jail's notice and appeals procedures will be granted if plaintiff in the due process context satisfies the four part test set forth in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Therefore, the following discussion sets forth this Court's analysis of those factors as they relate to plaintiff's Fourteenth Amendment due process claim.


Under the first prong of Winter, plaintiff has the burden of demonstrating that plaintiff is likely to succeed on the merits. See Winter, supra, 555 U.S. at 20. It is axiomatic that due process is adversely impacted by vague policies or disparate enforcement of those policies. See, e.g., Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966) ("the 1860 Act is invalid under the Due Process Clause because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory impositions of costs. . . . Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce"). And, it is problematic that the Jail's notice and appeal procedure is unclear.


A policy is set forth in POL 05.07.050, which states in part:


The Administrative Lieutenant may authorize restrictions of incoming or outgoing mail when the correspondence is deemed to be a threat to the legitimate penological interest of the facility. The Administrative Lieutenant shall provide written notification to both inmate and sender identifying the reason for the restriction, and advise both of their right to request a review. Staff shall accept a written request for review within ten days of initial notice. The Jail Administrator shall review the restriction and respond in a reasonable amount of time. . . .

Dkt. 12, Exhibit 2, Wright Declaration, Exhibit VV to Wright Declaration at page 3.


Plaintiff argues that defendants failed to comply with this policy, that the policy fails to define "threat to the legitimate penological interest," and that the policy is confusing and provides no information regarding how to obtain the stated review. Dkt. 10 at pages 21-22.


Another mail policy indicates that prisoners and their correspondents must be notified of the rejection by Jail staff of incoming mail, but that policy remains silent regarding outgoing mail rejected by Jail staff. Dkt. 45, Exhibit 2 at page 3. It states that if incoming mail is rejected for cause, it will be returned to the sender with a copy of the Notice of Withheld Material and shall include contact information and directions for due process. See id. Copies of this notice will be sent to the intended prisoner recipient. See id. The same procedure does not apply to outgoing mail rejected by Jail staff and no appeals procedure for prisoners is set forth in the policy. See id.


Defendants claim that the grievance policy contained in the Inmate Manual satisfies all of plaintiff's due process concerns. Dkt. 22 at page 11 (citing Dkt. 25, Exhibit 2). That Manual is for prisoners only, and not for other non-prisoner correspondents. The Manual does not refer specifically to the procedure that should be followed if mail is rejected, nor what notice is required, although it indicates that prisoners will be provided a written explanation when incoming mail (only) is rejected and instructs prisoners that they can appeal "to the Administration Lieutenant through the kiosk (GT) system." See Dkt. 25, Exhibit 2 at pp. 9-11. Defendants have not clarified how this manual is applied to rejected mail and has not clarified whether or not prisoners are given any notice of the Jail refusing to send their mail. See id.


Plaintiff argues that because of the disparate policies and procedures "the Jail's mail staff will be left to use unfettered discretion to apply the confusing and inconsistent policy according to their own interpretations." Dkt. 10 at p. 22. And, that appears to be exactly what occurred here. The Jail applied different stamps, advising the senders of different objections to the same types of mail. See Dkt. 12 at ¶¶ 12-13, Exhibits A through SS. None of the notices provided information to plaintiff of the procedure for appealing the rejections. Id. And, plaintiff has submitted evidence that prisoners were not given any notice that their mail had been rejected or that mail from the outside was not getting in. See Dkt. 32, Exhibit 3 at page 4. This is simply insufficient.


In Martinez, the Supreme Court affirmed an order by a district court that "required that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence." Martinez, supra, 416 U.S. at 418-19, overruled on other grounds, Thornburgh, supra, 490 U.S. 401.

Non-prisoner correspondents also have a constitutional interest in communicating with prisoners. See id.; Thornburgh, supra, 490 U.S. at 407 (prison and jail walls do not "bar free citizens from exercising their own constitutional rights by reaching out to those on the `inside'") (citations omitted). Therefore, plaintiff has satisfied this Court that the Jail's policies and practices of notifying senders and recipients of prison mail are unclear and irregularly applied. As such, the Court finds that plaintiff is likely to prevail on this issue and that the Jail's policy as applied is unconstitutional.


As set forth previously, under the second prong in Winter, "an alleged constitutional infringement will often alone constitute irreparable harm." Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Associated General Contractors v. Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991), overruled on other grounds, United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551 (1996) (quoting Goldie's Bookstore v. Superior Ct., 739 F.2d 466, 472 (9th Cir. 1984) (citing Wright & Miller, 11 Federal Practice and Procedure § 2948 at 440 (1973))). Due process, as guaranteed by the Fourteenth Amendment, cannot be protected by vague and irregularly applied policies and procedures. The threat of this continuing harm sufficiently satisfies this element of the Winter test. See Winter, supra, 555 U.S. at 20; see also Elrods, supra, 427 U.S. at 373 (citing New York Times Co., supra, 403 U.S. 713 (footnote omitted)); Klein, supra, 584 F.3d at 1207-08.


Regarding the third prong in the Winter test, the Court concludes that the balance of equities tips in plaintiff's favor as to prisoners and those sending correspondences to prisoners. Defendant has made no attempt to argue that it would be burdensome to provide sufficient notice to prisoners. In fact, it argues that it is already doing so, despite plaintiff's evidence to the contrary. Nor have defendants argued that providing sufficient notice to persons whose mail is rejected would be an unreasonable burden; instead arguing that they, too, receive this notice, despite the evidence to the contrary.


However, defendants have articulated good reasons for not being required to notify persons who do not receive rejected mail from prisoners. As to those persons, the Jail argues persuasively that if a prisoner attempts to send a message that would violate a restraining order or potentially lead to harmful actions taken by others, a requirement that the Jail notify the intended recipient of the attempted contact would defeat the entire purpose of screening the dangerous mail in the first place. See Dkt. 44 at ¶ 4.41. As to those persons, the Court agrees that the balance of hardships does not tip in favor of plaintiff. Because it is difficult to determine which potential non-prisoner recipients may benefit from notice, and because prisoners' due process rights can be adequately protected by providing them notice, the Court will not require that the Jail inform the intended recipients that prisoners' mail to them has been rejected.


Except as to those intended recipients of prisoners' mail, under the forth Winter test, the public interest is well served by requiring the Jail to provide notice and a clear appeals process to prisoners of both rejected incoming and outgoing mail, as well as to non-prisoner correspondents whose mail is rejected.


Rather than attempting to write jail policy, this Court will delineate the parameters of a constitutionally acceptable policy. First, the Jail must notify a prisoner when it rejects correspondence written by or addressed to the prisoner. This notification, at a minimum, will set forth the reason the mail was rejected, and the procedure to follow if the prisoner wishes to appeal the rejection. Second, the Jail must notify a non-prisoner correspondent if the nonprisoner correspondent's mail is rejected. Such notification, at a minimum, will set forth the reason mail was rejected, and the procedure to follow if the non-prisoner correspondent wishes to appeal the rejection. Third, any appeal of rejected mail will be referred to a jail official other than the person who originally rejected the correspondence.


ACCORDINGLY, IT IS HEREBY ORDERED that for the duration of plaintiff's lawsuit, the Court:

1. PRELIMINARILY ENJOINS defendants from restricting incoming and outgoing prisoner mail to postcards only, and orders defendants not to refuse to deliver or process prisoner personal mail on the grounds that it is in a form other than a postcard.


2. PRELIMINARILY ENJOINS defendants from rejecting mail to or from prisoners without providing notice to the prisoner. This notification, at a minimum, will set forth the reason the mail was rejected and the procedure to follow if the prisoner wishes to appeal the rejection.


3. PRELIMINARILY ENJOINS defendants from rejecting mail from nonprisoner correspondents without providing notice to the non-prisoner correspondent. This notification, at a minimum, will set forth the reason the mail was rejected, and the procedure to follow if the non-prisoner correspondent wishes to appeal the rejection.


4. PRELIMINARILY ENJOINS any appeal of rejected mail that is not referred to a jail official other than the person who originally rejected the correspondence.

Corizon's Cruel and Unusual Greed: follow the money with Prison Legal News.

 Excellent but troubling article below from Prison Legal News: print and send it to prisoners!  Prisoner subscriptions to Prison Legal News are only $30 a year for the print edition (for prisoners), and one of the best investments you can make.

www.prisonlegalnews.org

P.O. Box 1151

Lake Worth, FL 33460

info@prisonlegalnews.org   

For those fighting Corizon over  a loved one's health care, 

check out  these posts 

Corizon and the AZ DOC: Prisoners & Families, Know Your Rights.

Corizon's deliberate indifference: fighting back.

"DEATH SENTENCE": KPNX's Halloran and whistleblower expose depth of negligence at Corizon/AZ DOC.

and feel free to contact me if you think I can help:

----from PRISON LEGAL NEWS----

Corizon Needs a Checkup: Problems with Privatized Correctional Healthcare

published in Prison Legal News March, 2014, page 1

Loaded on March 15, 2014

by Greg Dober

Corizon, the nation’s largest for-profit medical services provider for prisons, jails and other detention facilities, was formed in June 2011 through the merger of Prison Health Services (PHS) and Correctional Medical Services (CMS).


In April 2013, the debt-rating agency Moody’s downgraded Corizon’s nearly $360 million worth of debt to a rating of B2 – an indication the company’s debt is highly speculative and a high credit risk. According to Moody’s, the rating downgrade was due to an “expectation of earnings volatility following recent contract losses, margin declines from competitive pricing pressure on new and renewed contracts, and Moody’s belief that Valitás [Corizon’s parent corporation] will be unable to restore metrics to levels commensurate with the prior B1 rating over the near to intermediate term.”


Valitás Health Services is majority owned by Beecken Petty O’Keefe & Company, a Chicago-based private equity management firm. Beecken’s other holdings are primarily in the healthcare industry.


On September 23, 2013, Moody’s again downgraded Corizon’s debt rating and changed the company’s rating outlook from “stable” to “negative.” The following month Corizon announced that it had replaced CEO Rich Hallworth with Woodrow A. Myers, Jr., the former chief medical officer at WellPoint Health. Hallworth, who had been appointed Corizon’s CEO in 2011, previously served as the president and CEO of PHS. At the same time that Hallworth was replaced, Corizon president Stuart Campbell also stepped down.


Prison Medical Care for Profit

According to Corizon’s website, the company provides healthcare services at over 530 correctional facilities serving approximately 378,000 prisoners in 28 states. In addition, Corizon employs around 14,000 staff members and contractors. The company’s corporate headquarters is located in Brentwood, Tennessee and its operational headquarters is in St. Louis, Missouri.

The 2011 merger that created Corizon involved Valitás Health Services, the parent company of CMS, and America Service Group, the parent company of PHS. The Nashville Business Journal reported the deal was valued at $250 million.

“Corizon’s vision is firmly centered around service – to our clients, our patients and our employees,” Campbell said at the time. “To that we add the insight of unparalleled experience assisting our client partners, and caring professionals serving the unique healthcare needs of [incarcerated] patients.”

Corizon has around $1.5 billion in annual revenue and contracts to provide medical services for the prison systems in 13 states. The company also contracts with numerous cities and counties to provide healthcare to prisoners held in local jails; some of Corizon’s larger municipal clients include Atlanta, Philadelphia and New York City (including the Rikers Island jail). Additionally, the company has its own in-house pharmacy division, PharmaCorr, Inc.

The prison healthcare market has flourished as state Departments of Corrections and local governments seek ways to save money and reduce exposure to litigation. [See: PLN, May 2012, p.22]. Only a few major companies dominate the industry. Corizon’s competitors include Wexford Health Sources, Armor Correctional Health Services, NaphCare, Correct Care Solutions and Centurion Managed Care – the latter being a joint venture of MHM Services and Centene Corporation. Around 20 states outsource all or some of the medical services in their prison systems.

As Corizon is privately held, there is little transparency with respect to its internal operations and financial information, including costs of litigation when prisoners (or their surviving family members) sue the company, often alleging inadequate medical care.

For example, when Corizon was questioned by the news media in Florida during a contract renewal, the company initially tried to prevent the release of its litigation history, claiming it was a “trade secret.”

In 2012, Corizon agreed to settle a lawsuit filed against PHS – one of its predecessor companies – by Prison Legal News, seeking records related to the resolution of legal claims against the firm in Vermont. Based on the records produced pursuant to that settlement, PHS paid out almost $1.8 million in just six cases involving Vermont prisoners from 2007 to 2011. [See: PLN, Dec. 2012, p.16].

Companies like Corizon provide healthcare in prisons and jails under the HMO model, with an emphasis on cutting costs – except that prisoners have no other options to obtain medical treatment except through the contractor.

Arizona DOC

A former Corizon nurse had her license suspended and is currently under investigation by the Arizona State Board of Nursing for incompetence. In January 2014, nurse Patricia Talboy was accused of contaminating vials of insulin at three units at the ASPC-Lewis prison, potentially exposing two dozen prisoners to HIV or hepatitis.

Talboy reportedly used a needle to stick prisoners’ fingers to check their blood sugar levels. She then used the same needle to draw insulin from vials of the medication utilized for multiple prisoners, possibly contaminating the insulin in the vials. After placing the vials back into inventory, other staff members may have unknowingly used them to dispense insulin.

“Every indication is that the incident is the result of the failure by one individual nurse to follow specific, standard and well-established nursing protocols when dispensing injected insulin to 24 inmates,” Arizona Department of Corrections (ADC) director Charles L. Ryan said in a January 9, 2014 statement.

Talboy’s failure to follow procedures was discovered after a prisoner told a different nurse about the issue. Corizon reportedly delayed three days before publicly reporting the incident; in a press release, the company admitted that one of its nurses had been involved in “improper procedures for injections.” Talboy received her nursing license in August 2012 and became an RN in June 2013; as a rookie nurse, Corizon likely paid her less than more experienced nurses.

Following the insulin-related incident, the company was ordered to develop a comprehensive plan that includes “supplemental training and competency testing procedures for blood glucose testing and administration of insulin,” as well as “nurse-peer reporting education to ensure professional accountability” and “patient awareness education on injection protocols.”

Granted, Corizon isn’t alone with respect to such incidents. In August 2012, a nurse employed by the ADC’s previous medical services contractor, Wexford Health Sources, contaminated the insulin supply at ASPC-Lewis through improper injection protocols, potentially exposing 112 prisoners to hepatitis C. [See: PLN, July 2013, p.1].

Corizon has a three-year, approximately $370 million contract to provide medical care in Arizona state prisons, which began in March 2013. The contract award generated controversy because former ADC director Terry Stewart was hired by Corizon as a consultant; current director Charles Ryan had previously worked under Stewart, raising a potential conflict of interest. Ryan denied any improprieties.

According to a report by the American Friends Service Committee released in October 2013, titled “Death Yards: Continuing Problems with Arizona’s Correctional Health Care,” medical services in Arizona prisons did not improve after Corizon replaced Wexford as the ADC’s healthcare contractor. “Correspondence from prisoners; analysis of medical records, autopsy reports, and investigations; and interviews with anonymous prison staff and outside experts indicate that, if anything, things have gotten worse,” the report stated.


Florida DOC

In 2013, the Florida Department of Corrections (FDOC) awarded Corizon a five-year, $1.2 billion contract to provide medical services to state prisoners in north and central Florida. Wexford Health Sources was contracted to provide similar services in the southern region of the state for $240 million. [See: PLN, June 2013, p.24]. The wholesale privatization of healthcare in Florida’s prison system followed a 2011 legislative decision to disband the state’s Correctional Medical Authority, which had oversight over prison medical care. [See: PLN, May 2012, p.30].

The contracts were part of the Republican administration’s initiative to expand privatization of government services, including prison management and healthcare, in spite of previous setbacks. In 2006, PHS withdrew two months into an almost $800 million contract to provide medical care to Florida prisoners; at that time, the company said the contract was not cost-effective and claimed it would lose money.

The 2013 contract awards to Corizon and Wexford followed a two-year legal fight. In 2011, AFSCME Florida and the Federation of Physicians and Dentists/Alliance of Healthcare and Professional Employees filed suit challenging the prison healthcare contracts, in an effort to protect the jobs of nearly 2,600 state workers.

On June 21, 2013 the First District Court of Appeals approved the privatization of medical care in FDOC facilities, overturning a ruling by the Leon County Circuit Court. The appellate court noted in its decision that “The LBC [Legislative Budget Committee] simply moved funds from different line items within the Department’s Health Services’ program, providing additional funds for contracts that the Department otherwise had the authority to enter.” See: Crews v. Florida Public Employers Council 79, 113 So.3d 1063 (Fla. Dist. Ct. App. 1st Dist. 2013).


Under the terms of the FDOC’s contract with Corizon, the company must provide medical care to Florida state prisoners for 7% less than it cost the FDOC in 2010. When entering into the contract, state officials apparently had few concerns about the numerous lawsuits previously filed against Corizon, and no hard feelings toward the company’s predecessor, PHS, when it terminated its 2006 contract to provide medical services to Florida prisoners because it wasn’t profitable.


“Most people feel, as long as they achieve their 7 percent savings who cares how they treat inmates?” noted Michael Hallett, a professor of criminology at the University of North Florida.


Florida Counties


In a September 6, 2012 unpublished ruling, the Eleventh Circuit Court of Appeals affirmed a $1.2 million Florida jury verdict that found Corizon – when it was operating as PHS – had a policy or custom of refusing to send prisoners to hospitals. The Court of Appeals held it was reasonable for jurors to conclude that PHS had delayed medical treatment in order to save money. See: Fields v. Corizon Health, 490 Fed.Appx. 174 (11th Cir. 2012).


The jury verdict resulted from a suit filed against Corizon by former prisoner Brett A. Fields, Jr. In July 2007, Fields was being held in the Lee County, Florida jail on two misdemeanor convictions. After notifying PHS staff for several weeks that an infection was not improving, even with antibiotics that had been prescribed, Fields was diagnosed with MRSA. PHS did not send him to a hospital despite escalating symptoms, including uncontrolled twitching, partial paralysis and his intestines protruding from his rectum. A subsequent MRI scan revealed that Fields had a severe spinal compression; he was left partly paralyzed due to inadequate medical care.


The Eleventh Circuit wrote that PHS “enforced its restrictive policy against sending prisoners to the hospital,” and noted that a PHS nurse who treated Fields at the jail “testified that, at monthly nurses’ meetings, medical supervisors ‘yelled a lot about nurses sending inmates to hospitals.’” Further, PHS “instructed nurses to be sure that the inmate had an emergency because it cost money to send inmates to the hospital.”


At trial, the jury found that PHS had a custom or policy of deliberate indifference that violated Fields’ constitutional right to be free from cruel and unusual punishment. The jurors concluded that Fields had a serious medical need, PHS was deliberately indifferent to that serious medical need, and the company’s actions proximately caused Fields’ injuries. The jury awarded him $700,000 in compensatory damages and $500,000 in punitive damages. [See: PLN, March 2013, p.54; Aug. 2011, p.24].


More recently, the estate of a 21-year-old prisoner who died at a jail in Manatee County, Florida filed a lawsuit in October 2013 against the Manatee County Sheriff’s Office and Corizon, the jail’s healthcare provider. The complaint accuses the defendants of deliberate indifference to the serious medical needs of Jovon Frazier and violating his rights under the Eighth Amendment.


In February 2009, Frazier was incarcerated at the Manatee County Jail; at the time of his medical intake screening, staff employed by Corizon, then operating as PHS, noted that his health was unremarkable. Frazier submitted a medical request form in July 2009, complaining of severe pain in his left shoulder and arm, and a PHS nurse gave him Tylenol.


Throughout August and September 2009, Frazier submitted five more medical requests seeking treatment for his arm and shoulder. “It really hurts! HELP!” he wrote in one of the requests. PHS employees saw him and recorded his vital signs. Despite the repeated complaints, Frazier was never referred to a doctor or physician assistant; on September 9, 2009 his treatment was documented as routine but he was placed on the “MD’s list.”


An X-ray was taken on September 17, 2009 to rule out a shoulder fracture. The X-ray was negative for a fracture, and Frazier was not referred to a doctor. He submitted two more medical requests that month and five requests in October 2009 seeking treatment for his increasingly painful condition. The complaint alleges that in total, Frazier submitted 13 medical request forms related to pain over a period of three months; he was seen by a nurse each time but not examined by a physician.


On October 29, 2009, Frazier received an X-ray to determine if he had a tendon injury. An MRI was recommended and he was transported to a hospital where an MRI scan revealed a large soft tissue mass on his shoulder. A doctor at the hospital, concerned that the mass was cancerous, recommended additional tests.


After being diagnosed with osteosarcoma, a form of bone cancer, Frazier was returned to the jail and subsequently treated at the Moffitt Cancer Center, where he received chemotherapy, medication and surgery. Despite this aggressive treatment the cancer progressed and Frazier’s left arm was amputated. The cancer continued to spread, however, and he was diagnosed with lung cancer in June 2011. He died within three months of that diagnosis, on September 18, 2011.


In a letter to the attorney representing Frazier’s estate, Florida oncologist Howard R. Abel wrote that the lack of treatment provided by Corizon at the Manatee County Jail constituted “gross negligence and a reckless disregard to Mr. Frazier’s right to timely and professionally appropriate medical care.”


The lawsuit filed by Frazier’s estate claims that Corizon was aware of his serious medical condition but failed to provide adequate treatment. In addition, the complaint contends the company has a widespread custom, policy and practice of discouraging medical staff from referring prisoners to outside medical practitioners and from providing expensive medical tests and procedures. Finally, the lawsuit states that “Corizon implemented these widespread customs, policies and practices for financial reasons and in deliberate indifference to [the] serious medical needs of Frazier and other inmates incarcerated at Manatee County Jail.”


On January 10, 2014, U.S. District Court Judge James Moody denied Corizon’s motion to dismiss the case. The company had argued that the allegations in the lawsuit failed to assert sufficient facts to establish deliberate indifference, amounted only to medical negligence and were insufficient to establish gross negligence, and failed “to adequately allege a policy or custom that violated Frazier’s rights.” Judge Moody disagreed, finding the claims set forth in the complaint were “sufficient to establish a constitutional violation.”


The Manatee County Sheriff’s Office had better luck with its motion to dismiss. The Sheriff argued the complaint did not establish facts indicating that the jail had a similar practice – like Corizon – of providing deliberately indifferent medical care to prisoners. The court agreed and dismissed the claims against the Sheriff’s Office; the claims against Corizon remain pending. See: Jenkins v. Manatee County Sheriff, U.S.D.C. (M.D. Fla.), Case No. 8:13-cv-02796-JSM-TGW.


Idaho DOC


In February 2013, the Idaho Department of Corrections (IDOC) announced it had reached a one-year extended agreement with Corizon to provide medical care in the state’s prison system. However, the Idaho Business Review reported that the extension also resulted in a rate increase. Then-Corizon president Stuart Campbell informed the IDOC Board of Correction that the company wouldn’t sign an extension for less money, stating the current contract had become too costly. During the preceding three years of the contract the IDOC had incurred approximately 20% in cumulative rate increases.


Both sides agreed that the contract would run through December 2013 and the IDOC would pay an additional $250,000. It seems odd that Idaho was willing to continue contracting with the company, though, as the relationship between the IDOC and Corizon has been a rocky one.


The quality of medical care at the Idaho State Correctional Institution (ISCI) in Boise has been an ongoing issue for nearly three decades. The prison was the focus of a class-action lawsuit filed on behalf of prisoners alleging a variety of problems, including inadequate healthcare. The lawsuit was known as the Balla litigation after plaintiff Walter Balla.


In July 2011, after new complaints were filed regarding medical care at ISCI, U.S District Court Judge B. Lynn Winmill appointed a special master, Dr. Marc F. Stern, to assess the situation at the facility. The court wanted Stern to confirm whether ISCI was in compliance with the temporary agreements established in the Balla case, and to investigate and report on “the constitutionality of healthcare” at the facility.


Dr. Stern, a former health services director for the Washington Department of Corrections who also had previously worked for CMS, one of Corizon’s predecessor companies, issued a scathing report in February 2012. With the aid of psychiatrist Dr. Amanda Ruiz, Stern and his team reviewed ISCI over a six-day period and met with dozens of prisoners, administrators and Corizon employees.


Stern stated in the report’s executive summary: “I found serious problems with the delivery of medical and mental health care. Many of these problems have either resulted or risk resulting in serious harm to prisoners at ISCI. In multiple ways, these conditions violate the rights of prisoners at ISCI to be protected from cruel and unusual punishment. Since many of these problems are frequent, pervasive, long-standing, and authorities are or should have been aware of them, it is my opinion that authorities are deliberately indifferent to the serious health care needs of their charges.”


The report found that prisoners who were terminally ill or in long-term care were sometimes left in soiled linens, given inadequate pain medication and went for long periods without food or water. The findings regarding sick call noted instances in which prisoners’ requests either resulted in no care, delayed care or treatment that was deemed dangerous. Emergency care situations had insufficient oversight, delays or no response; inadequately trained medical staff operated independently during emergencies without oversight from an RN or physician. The report also found problems with the pharmacy and medication distribution at ISCI.

In one case, a prisoner with a “history of heart disease was inexplicably dropped from the rolls of the heart disease Chronic Care Clinic.” As a result, medical staff stopped conducting regular check-ups and assessments related to the prisoner’s heart condition. A few years later the prisoner went in for a routine visit, complaining of occasional chest pain. No evaluation or treatment was ordered and the prisoner died four days later due to a heart attack. In another case, Corizon staff failed to notify a prisoner for seven months that an X-ray indicated he might have cancer.

Dr. Stern’s report not only reviewed processes but also staff competency and adequacy. The report cited allegations that a dialysis nurse at ISCI overtly did not like prisoners, and routinely “failed to provide food and water to patients during dialysis, prematurely aborted dialysis sessions or simply did not provide them [dialysis] at all and failed to provide ordered medications resulting in patients becoming anemic.” Stern concluded that prison officials were aware of this issue and the danger it presented to prisoners, but “unduly delayed taking action.”


The mental health care provided by Corizon at ISCI was found to be deficient by Dr. Ruiz, who conducted the psychiatric portion of the court-ordered review. The report noted that the facility had 1) inadequate “screening of and evaluating prisoners to identify those in need of mental health care,” 2) “significant deficiencies in the treatment program at ISCI” which was “violative of patients’ constitutional right to health care,” 3) an “insufficient number of psychiatric practitioners at ISCI,” 4) incomplete or inaccurate treatment records, 5) problems with psychotropic medications, which were prescribed with no face-to-face visits or follow-up visits with prisoners and 6) inadequate suicide prevention training.


The report concluded: “The state of guiding documents, the inmate grievance system, death reviews and a mental health CQI [continuous quality improvement] system at ISCI is poor. While not in and of themselves unconstitutional, it is important for the court to be aware of this and its possible contribution to other unconstitutional events.”


In March 2012, shortly after Dr. Stern’s report was released over the objection of state officials, Corizon disagreed with its findings. The company retained the National Commission on Correctional Health Care (NCCHC) to review the report. Corizon described the review as an “independent assessment,” even though it was paying NCCHC accreditation fees.


The NCCHC review consisted of a three-person team assessing the facility over a two-day period in April 2012. Unlike Stern’s assessment of medical and mental health care, the NCCHC team did not interview prisoners or include a psychiatrist. Regardless, the agency concluded that “The basic structure of health services delivery at ISCI meets NCCHC’s standards.”


Corizon stated in a press release that Dr. Stern’s report was “incomplete, misleading and erroneous,” and then-CEO Rich Hallworth appeared in a video defending the company. The NCCHC had previously accredited Corizon’s healthcare services at ISCI, thus in essence the NCCHC’s review was self-validating the organization’s prior accreditation findings. Also, according to NCCHC’s website, two Corizon officials sit on the agency’s health professionals certification board of trustees.


Corizon’s criticism of Dr. Stern’s report is just one example where the company has objected to an independent, third-party assessment of its medical services. The Balla case settled in May 2012 after 30 years of litigation. [See: PLN, Feb. 2013, p.40].


Indiana DOC


Following a competitive bidding process, Corizon was selected to continue providing medical care to Indiana state prisoners under a three-year contract effective January 1, 2014. The contract has a cap of $293 million, based on a per diem fee of $9.41 per prisoner.


Three weeks later, a lawsuit filed in federal court named Corizon and the Indiana Department of Correction as defendants in connection with the wrongful death of prisoner Rachel Wood. Wood, 26, a first-time drug offender, died in April 2012; the suit, filed on behalf of her family, claims she was transferred from prison to prison and denied care for her serious medical conditions, which included lupus and a blood clotting disorder.

“Notwithstanding the duty of the prison medical staff to provide adequate medical care to Rachel and to treat her very serious life threatening conditions, prison medical staff willfully and callously disregarded her condition, and allowed Rachel to deteriorate and die,” the complaint stated.

“That is just the attitude of these guys, is saving money rather than providing health care,” said Michael K. Sutherlin, the attorney representing Wood’s family.

Prison officials reportedly moved Wood among several different prisons and hospitals, and at one point lost track of her and claimed she had escaped even though she was still incarcerated.

“She died a horrible death and she died alone,” stated her father, Claude Wood. The lawsuit remains pending. See: Williams v. Indiana DOC, Marion County Superior Court (IN), Case No. 49D05-1401-CT-001478.


Maine DOC


In an October 2013 Bangor Daily News article, Steve Lewicki, coordinator of the Maine Prisoner Advocacy Coalition, discussed the state of healthcare in Maine’s prison system. “Complaints by prisoners are less,” he said, noting that while medical services provided to prisoners are better than in the past, there are still concerns. This relative improvement coincided with the end of the state’s contract with Corizon. The contract, valued at approximately $19.5 million, was awarded to another company in 2012.

A year earlier, the Maine legislature’s Office of Program Evaluation and Government Accountability (OPEGA) completed a review of medical services in state prisons. The agency contracted with an independent consultant, MGT of America, to conduct most of the fieldwork, and the review included services provided under Corizon’s predecessor company, CMS.

The OPEGA report, issued in November 2011, cited various deficiencies in medical care at Maine prisons – including medications not always being properly administered and recorded by CMS staff. Although the company was notified of the problem, no corrective action was taken. CMS employees did not follow policies related to medical intake and medical records; OPEGA reported that 38% of prisoners’ medical files had inadequate or inaccurate documentation regarding annual physical assessments, and that files were not complete or consistently maintained. The report found 11% of sick calls reviewed were either not resolved timely or had no documented resolution. OPEGA also criticized CMS for inadequate staff training.

At a January 2012 legislative committee hearing, state Senator Roger Katz asked Corizon regional vice president Larry Amberger, “My question to you is in light of this history, why should the state seriously be considering any proposal your company might make to get this contract back again?”

In response, Amberger criticized the methodology used by MGT during the assessment and said he believed Corizon provided quality medical care. Questioning and challenging the findings of an independent reviewer is the same tactic the company used in Idaho. Regardless, Corizon’s contract to provide medical care to Maine state prisoners is now a part of history.


Louisville, Kentucky


While some jurisdictions, like Maine, have chosen not to renew their contracts with Corizon due to performance-related problems, in 2013 the Metro Department of Corrections in Louisville, Kentucky (LMC) offered the company a chance to rebid for its $5.5 million contract to provide medical care at the LMC jail. This time, however, it was Corizon that said “no thanks.”

The rebid offer was made even though seven healthcare-related prisoner deaths occurred in a seven-month period in 2012 during Corizon’s prior contract, which expired in February 2013. Nevertheless, LMC and Corizon agreed to extend the contract through July 30, 2013 on a month-to-month basis pending a formal rebid.

After the expiration of the month-to-month contract extension, Corizon notified LMC that it was no longer interested in providing services to the corrections department and would not seek to rebid the contract. LMC director Mark Bolton told the Courier Journal he was “surprised” by the company’s decision. What seems more surprising is that LMC wanted to continue contracting with Corizon to provide medical services in spite of the number of prisoner deaths.

In April 2012, Savannah Sparks, 27, a heroin addict and mother of three, was arrested and held on shoplifting charges at the LMC jail. While withdrawing from heroin she vomited, sweat profusely, could not sit up, could not eat or drink, and defecated and urinated on herself. Six days later she was dead. According to the medical examiner, her death was due to “complications of chronic substance abuse with withdrawal.”

A subsequent wrongful death suit alleged that Corizon and LMC employees were negligent in failing to provide treatment for Sparks’ opiate addiction and withdrawal. Corizon settled the suit under confidential terms. See: May v. Corizon, Jefferson County Circuit Court (KY), Case No. 13-CI-001848.

Four months after Sparks’ death, on August 8, 2012, another LMC prisoner, Samantha George, died. A lawsuit filed in Jefferson County Circuit Court claimed that George was moved from the Bullitt County Jail to the LMC facility on a charge of buying a stolen computer. According to the complaint, she told a Corizon nurse that she was a severe diabetic, needed insulin, and was feverish and in pain from a MRSA infection.

The nurse notified an on-call Corizon physician, who was not located at the facility and thus could not examine George in person, to decide if she should be taken to an emergency room. The doctor recommended monitoring George and indicated he would see her the next day. George’s condition rapidly deteriorated while she was monitored by staff at the jail; she was found unresponsive a few hours after being admitted to the facility and pronounced dead a short time later.

An autopsy concluded that George died due to complications from a severe form of diabetes compounded by heart disease. According to the lawsuit, the Corizon doctor never saw George; among other defendants, the suit named Corizon and LMC director Mark Bolton as defendants. The case was removed to federal court, then remanded to the county circuit court in October 2013. See: George v. Corizon, U.S.D.C. (W.D. Ky.), Case No. 3:13-cv-00822-JHM-JDM.

A few weeks after George’s death, Kenneth Cross was booked into the LMC jail on a warrant for drug possession. According to a subsequent lawsuit, upon Cross’ arrival at the jail a nurse documented that he had slurred speech and fell asleep numerous times during the medical interview. Several hours later he was found unconscious, then died shortly thereafter due to a drug overdose. The lawsuit filed by Cross’ estate alleged that employees at the LMC jail were deficient in recognizing and treating prisoners’ substance abuse problems and that the facility was inadequately staffed for such medical care.

After the deaths of Sparks, George, Cross and four other prisoners in 2012, LMC director Bolton said he believed Corizon took too long to evaluate and treat prisoners at the jail. According to the Courier-Journal, Bolton sent an email to his staff in December 2012 regarding the prisoners’ deaths, stating, “Mistakes were made by Corizon personnel and their corporation has acknowledged such missteps.” He further indicated that Corizon employees – not LMC staff members – were responsible for the care of the prisoners who died. Six Corizon employees at the LMC jail resigned in December 2012 during an internal investigation; they were not identified.

Bolton’s criticism was too little, too late to prevent the deaths of the seven LMC prisoners, though the jail has since made improvements to its medical services, including a full-time detox nurse and new protocols for prisoners experiencing withdrawal. One could speculate that LMC’s critique of Corizon might be a litigation tactic, to deflect responsibility. The fact remains that seven deaths occurred under Corizon’s watch and, notwithstanding those deaths, LMC was willing to renew its contract with the company.

In January 2014, the Louisville Metro Police’s Public Integrity Unit concluded investigations into three of the deaths at the jail, and criticized both Corizon and LMC. The Commonwealth Attorney’s Office found that Sparks’ and George’s deaths were preventable; however, no criminal charges were filed. Dr. William Smock, a forensic examiner who served as a consultant during the investigations, stated with respect to George’s death: “There is compelling evidence of a significant deviation from the standard of care and medical negligence on the part of the medical providers.”

“I’m glad to see that the government’s investigation matches exactly what our investigation showed, which is that her death and others like hers is easily preventable,” said Chad McCoy, the attorney representing George’s estate.


Minnesota DOC

After providing medical care to Minnesota state prisoners for 15 years, Corizon was not selected when the contract was rebid in 2013 – despite having submitted the lowest bid. Instead, competitor Centurion Managed Care was to begin providing healthcare services in Minnesota’s prison system effective January 1, 2014 under a two-year, $67.5 million contract.

Corrections Commissioner Tom Roy said the contract with Centurion was expected to “deliver significant savings to taxpayers while improving the quality of care for offenders.”

According to the Star-Tribune, nine prisoners died and another 21 suffered serious or critical injuries in Minnesota correctional facilities due to delay or denial of medical care under the state’s previous contract, which had been held by Corizon or its predecessor, CMS, since 1998.

That contract was for a fixed annual flat fee of $28 million. A flat fee contract provides an incentive for the contractor to tightly control costs, as a reduction in expenses results in an increase in profit. The Star-Tribune found that many of the staffing arrangements negotiated in the contract played a role in the deaths and injuries. For example, the contract allowed Corizon physicians to leave at 4:00pm daily and did not require them to work weekends. During off-hours there was only one doctor on call to serve the state’s entire prison system, and many of the off-hour consultations were done telephonically without the benefit of the prisoner’s medical chart. Under the contract, Corizon was not required to staff most facilities overnight.

The Minnesota Department of Corrections was held liable for nearly $1.8 million in wrongful death and medical negligence cases during the period when the state contracted with Corizon or CMS.

In October 2012, a jury in Washington County awarded Minnesota prisoner Stanley Riley more than $1 million after finding a Corizon contract physician, Stephen J. Craane, was negligent in providing medical treatment. The Star-Tribune reported that Riley suffered from what turned out to be cancer and had written a series of pleading notes to prison officials. One read, “I assure you that I am not a malingerer. I only want to be healthy again.”

In May 2013, the state paid $400,000 to settle a lawsuit over the death of a 27-year-old prisoner at MCF-Rush City. Xavius Scullark-Johnson, a schizophrenic, suffered at least seven seizures in his cell on June 28, 2010. Nurses and guards didn’t provide him with medical care for nearly eight hours. According to documents obtained by the Star-Tribune, Scullark-Johnson was found “soaked in urine on the floor of his cell” and was “coiled in a fetal position and in an altered state of consciousness that suggested he had suffered a seizure.” An ambulance was called several hours later but a nurse at the prison turned it away, apparently due to protocols to cut costs. Corizon settled the lawsuit for an undisclosed sum in June 2013. See: Scullark v. Garin, U.S.D.C. (D. Minn.), Case No. 0:12-cv-01505-RHK-FLN.


Philadelphia, Pennsylvania


In Philadelphia, Mayor Michael A. Nutter has been accused of being too loyal to his campaign contributors, including Corizon. The company donated $1,000 to Nutter’s 2012 campaign committee several months before the city renewed Corizon’s contract to provide medical care to 9,000 prisoners in Philadelphia’s prison system. Further, PHS donated $5,000 to Nutter’s mayoral campaign in 2008.

The contract renewal would have been routine except for the fact that Corizon’s performance in Philadelphia has been far from stellar. In July 2012 the company agreed to pay the city $1.85 million following an investigation that found Corizon was using a minority-owned subcontractor that did no work, which was a sham to meet the city’s requirements for contracting with minority-owned businesses.

The renewed year-to-year Corizon contract, worth $42 million, began in March 2013. Nutter’s administration was accused of using the year-to-year arrangement to avoid having the contract scrutinized by the city council; the city’s Home Rule Charter requires all contracts of more than one year to be reviewed by the council. Further infuriating opponents of the contract, Corizon was not the lowest bidder. Correctional Medical Care (CMC), a competitor, submitted a bid that would have cost the city $3.5 million less per year than Corizon. Philadelphia Prison Commissioner Louis Giorla defended the city’s decision to award the contract to Corizon at a council hearing; however, he declined to answer questions as to why the administration considered Corizon’s level of care to be superior to that provided by CMC.

Three union contracts with Corizon covering 270 of the company’s workers in Philadelphia’s prison system expired on November 26, 2013. Corizon demanded benefit cuts, including changes in employee healthcare programs, to offset wage increases promised under the company’s contract with the city. A strike was averted in December 2013 when the mayor’s office intervened and both sides reached a settlement. The Philadelphia Daily News reported that the new union contracts provide wage increases but also include a less-generous health insurance plan for Corizon employees.

Since 1995, Corizon and its predecessor, PHS, have received $196 million in city contracts. The company’s contract was terminated for several months in 2002 as a result of complaints that a diabetic prisoner had died after failing to receive insulin. The city renewed the contract anyway, citing affordability and pledging increased oversight. The city’s law department estimates that Philadelphia has paid over $1 million to settle lawsuits involving claims of deficient prison healthcare; the largest settlement to date is $300,000, paid to a prisoner who did not receive eye surgery and is now partially blind.

Based upon the number of lawsuits filed against Corizon alleging inadequate medical care, its use of a sham subcontractor and the company’s treatment of its own employees, it appears that maintaining the status quo – not best practices – may be the controlling factor in Philadelphia’s continued relationship with Corizon.


Allegheny County, Pennsylvania

On September 30, 2013, a prisoner jumped from the top tier of a pod at the Allegheny County Jail. Following an investigation, authorities refused to make public their findings and declined to disclose the prisoner’s injuries, citing medical privacy laws. The prisoner, Milan Karan, 38, was not transported to the hospital until the following day.

A spokesperson for Corizon, which provides medical care at the 2,500-bed jail, defended the nearly 24-hour delay by noting the prisoner “was under observation” before being sent to a hospital.

In December 2013, the Pittsburgh Post-Gazette reported that Corizon was having difficulty staffing the Allegheny County Jail. When the newspaper requested a comment from Corizon vice president Lee Harrington, Harrington claimed he had no knowledge of staffing problems – despite having previously received emails from the facility’s warden about that exact issue.

The staffing problems resulted in prisoners not receiving their medication in a timely manner. In emails obtained by the Post-Gazette, Warden Orlando Harper wrote to Harrington in October 2013, noting, “We are continuing to experience issues pertaining to the following: 1. Staffing, 2. Medication distribution.” Also, on November 17, 2013, Deputy Warden Monica Long sent an email to Corizon and jail staff. “I was just informed by the Captain on shift, the majority of the jail has not received medication AT ALL,” she stated, adding, “Staffing is at a crisis.”

That crisis had been ongoing since Corizon assumed the medical services contract at the facility on September 1, 2013. Before the $62.55 million, five-year contract was awarded, Corizon vice president Mary Silva wrote in an email that it was imperative the jail have “adequate staffing on ALL shifts.” That promise was made despite Corizon laying off many of the former employees of Allegheny Correctional Health Services, the jail’s previous healthcare provider.

Allegheny Correctional had provided four full-time and one part-time physician during its contract tenure. Corizon reduced the number of doctors to one full-time and one part-time physician. Allegheny Correctional also employed three psychiatrists and one psychologist. Corizon’s contract requires that it provide one full-time psychiatrist and a part-time psychologist.

In January 2014, the United Steelworkers union (USW) filed a petition with the National Labor Relations Board to unionize Corizon employees at the Allegheny County Jail, including nurse practitioners, RNs, physician assistants and psychiatric nurses. USW representative Randa Ruge indicated that the Corizon workers had approached the union for representation due to intolerable working conditions.

“Our folks [Corizon employees] are in danger of losing their licenses to practice by some of the things that the company has them doing,” she said. Ruge told the Post-Gazette that the jail had run out of insulin for more than a week and Corizon supervisors had “countermanded doctors’ orders.”

Several weeks after the USW filed the labor petition, a Catholic nun who worked as an RN at the jail was fired by Corizon, allegedly for union organizing activities. Sister Barbara Finch was dismissed after she openly expressed concerns about staffing, patient care and safety at the facility. The USW filed an unfair labor complaint against Corizon regarding Finch’s dismissal, claiming she was terminated in retaliation for her union activities.

“This is a clear case of intimidation and union-busting at its worst,” said USW President Leo W. Gerard. “Sister Barbara has been an outspoken advocate of change for these courageous workers and their patients, and this kind of illegal and unjust action, unfortunately, is par for the course with Corizon.”

On February 14, 2014, Corizon employees at the Allegheny County Jail voted overwhelmingly to unionize. “The next step is getting to the bargaining table and getting Corizon to bargain in good faith and get some changes made in the health system at the jail,” said Ruge.

The previous week, Allegheny County Controller Chelsa Wagner stated she had “grave and serious concerns” about medical care at the facility, including issues related to staffing and treatment for prisoners with certain mental health conditions. “I regard the current situation as intolerable and outrageous, and I fully expect necessary changes to be urgently implemented,” she wrote in a letter to Corizon.


Polk County, Iowa

On August 29, 2013, Ieasha Lenise Meyers, incarcerated at the jail in Polk County, Iowa on a probation violation, gave birth on a mattress on the floor of her cell. Her cellmates assisted with the delivery. Earlier, when Meyers, 25, had complained of contractions, a Corizon nurse called an offsite medical supervisor and was told to monitor the contractions and check for water breaking.

Despite Meyers having been twice sent to a hospital earlier the same day, and pleading that she was about to give birth, the nurse did rounds in other parts of the jail. Guards reportedly did not check on Meyers as required, even though the birth could be seen on a nearby security monitor. Only after the baby was born was medical care provided. Sheriff Bill McCarthy defended the actions of jail staff.

Corizon Employee Misconduct

Like most private contractors that provide prison-related services, Corizon tends to cut costs in terms of staffing and operational expenses. As noted above, this includes paying lower wages, providing fewer or inferior benefits and hiring less qualified workers who can be paid less. Sometimes, however, these practices result in employees more like to engage in misconduct.

At the Pendleton Correctional Facility in Indiana, a Corizon nurse was arrested and charged with sexual misconduct, a Class C felony. The Herald Bulletin reported that in April 2013, when Colette Ficklin was working as a contract nurse for Corizon, she convinced a prisoner to fake chest pains so they could be alone in an exam room. A guard told internal affairs officers that she witnessed Ficklin and the prisoner engaging in sex acts in the prison’s infirmary. [See: PLN, Sept. 2013, p.17].

In March 2013 at the Indiana State Prison in Michigan City, a Corizon practical nurse was charged with drug trafficking and possession with intent to distribute. Phyllis Ungerank, 41, was arrested and booked into the LaPort County Jail after attempting to smuggle marijuana into the facility. [See: PLN, July 2012, p.50].

A Corizon nurse at the Volusia County Branch Jail in Daytona Beach, Florida was fired after officials learned she was having sex with and giving money to a prisoner. Valerie Konieczny was terminated on December 18, 2012 when the jail was contacted by the brother of prisoner Randy Joe Schimp, who had written in a letter that a nurse was having sex with him and depositing money into his jail account. Investigators determined that Konieczny was the nurse who had sex with Schimp at both the Volusia County facility and another branch jail in 2011.


In New Mexico, Corizon physician Mark Walden was accused of fondling prisoners’ genitals and performing prostrate exams that were “excessive and inappropriate in terms of length and method.” At times, Walden reportedly did not wear gloves during the prostate exams. He was accused of sexually abusing 25 or more male prisoners while employed as a doctor at two privately-operated facilities, the Guadalupe County Correctional Facility in Santa Rosa and Northeast New Mexico Detention Facility in Clayton.


Lawsuits were filed against Walden, Corizon and private prison operator GEO Group, and Walden’s medical license was suspended in December 2013. The suits claim that Corizon allowed Dr. Walden to work at the Clayton prison “despite knowing of the risk of sexual abuse and having the ability to know that [he] was repeatedly sexually abusing patients” at the Santa Rosa facility. [See: PLN, Sept. 2013, p.47].


The Privatization Model


Economics professors Kelly Bedard and H.E Frech III at the University of California at Santa Barbara examined the privatization of correctional medical services in their research study, “Prison Health Care: Is Contracting Out Healthy?,” published in Health Economics in November 2009.


They concluded: “We find no evidence to support the positive rhetoric regarding the impact of prison health care contracting out on inmate health, at least as measured by mortality. Our findings of higher inmate mortality rates under contracting out are more consistent with recent editorials raising concerns about this method of delivering health care to inmates.”


Today, five years after the Bedard-Frech report was published, it has the benefit of hindsight. Since the report was written, its findings and conclusions have been reaffirmed in prisons and jails across the nation that have contracted with private companies to provide medical care to prisoners. Cost reductions in the provision of correctional healthcare tend to result in greater inefficiencies that lead to poorer outcomes. Consequently, for-profit medical contractors may actually be increasing morbidity and mortality in prison and jail populations.


Many governmental entities are willing to outsource correctional healthcare to private companies; reasons for doing so include cutting costs, risk management and removing healthcare duties from corrections departments. If Corizon’s record with respect to providing medical care to prisoners seems dismal, the company can always defend its actions by stating it does what it has been hired to do: Cut costs for its customers. And those costs have been rising due to an increasingly aging, and thus medically-needy, prison population. [See: PLN, Nov. 2012, p.22; Dec. 2010, p.1].


With respect to risk management, litigation is not a compelling issue within the prison healthcare industry and Corizon views lawsuits as simply a cost of doing business. “We get sued a lot, but 95% or 97% of cases were self-represented cases,” ex-CEO Rich Hallworth was quoted in an August 2013 article. He added that most lawsuits settle for an average of less than $50. Of course it is difficult for prisoners to obtain representation to pursue litigation – unless it’s a wrongful death case, and then usually their family or estate is doing the suing.


Nor are the public agencies that contract with private medical providers greatly concerned about their litigation records. In fact, when Florida contracted with Corizon and Wexford Health Sources to provide medical care for the state’s entire prison system, the Florida Department of Corrections didn’t ask the companies about their litigation histories – such as lawsuits raising claims of deliberate indifference, negligence and medical malpractice.


“What really troubles me about this is the fact that the department didn’t ask these very basic, elemental questions any system would ask,” observed ACLU National Prison Project staff attorney Eric Balaban. “These two vendors were taking over Florida’s massive health care system and you’d think they would have asked hard questions to determine if these companies can provide these services within constitutional requirements.”


Even worse, the downgrading of Corizon’s debt rating by Moody’s in 2013 creates a potential problem for the company’s service delivery model. The majority of Corizon’s revenue is derived from contracts with state and local agencies that are trying to reduce their budgetary expenses. Given those fiscal pressures and competition from Wexford, Armor, Centurion and other prison healthcare companies, Corizon cannot easily increase its revenue through contractual price increases. But the company’s expenses are largely within its control.


Unfortunately for prisoners, in order to reduce costs Corizon will likely have to curtail the quality or quantity of healthcare services it provides. As noted above, this can be done by reducing employee wages or benefits; the company can also cut costs through understaffing and by limiting prescription medications or providing fewer referrals to hospitals and specialists. A growing trend is to use off-site medical staff who consult with prisoners through telemedicine. [See: PLN, Dec. 2013, p.34].


The correctional healthcare industry, comprised of only a few large companies, is highly competitive. When one company loses a contract, another is more than willing to step in and submit a bid. What really matters for most government agencies and policymakers is the bottom line cost.


According to Dr. Marc Stern, the court-appointed special master in Idaho, “whoever delivers prison healthcare is doing it on less than adequate funding because that’s how much municipalities, state legislatures and county commissions are allocating.” He noted that privatization can be good in some cases and bad in others, depending on the level of oversight by the contracting public agency.

When Corizon compromises medical care to save money, such as curtailing the use of ambulances for emergency transports, reducing the number of on-site doctors or sending fewer prisoners to outside hospitals for needed treatment, government officials typically fail to take corrective action and deny responsibility for the resultant deaths and injuries. Indeed, as with the Idaho Department of Corrections and LMC in Kentucky, they sometimes want to reward the company with renewed contracts.

Why? Because continuity maintains cost control, which is the driving force behind privatization of prison and jail medical services.


Conclusion

The intent of this article was to review Corizon’s performance and practices based on publicly-available information, including news reports and court records. Although the company was formed in June 2011, its two predecessor firms, PHS and CMS, littered the news and judicial dockets over the years with lawsuits and articles involving cases of inadequate healthcare. Thus, the sins of Corizon’s parents, CMS and PHS, are forever linked with the progeny of their merger.

Such past misdeeds could be explained away had Corizon adopted a new, post-merger culture that was removed from prior practices under PHS and CMS. However, many of Corizon’s mid-level and top executives – including ex-CEO Rich Hallworth, former president Stuart Campbell, chairman Richard H. Miles and a number of vice presidents – were previously executives with PHS or CMS. It was during their tenure at those companies that numerous cases involving deficient medical care occurred.

The corporate culture of Corizon, as well as its business model, appears to be largely the same as those of its predecessors. Therefore, the only thing that may have changed as a result of the merger that created Corizon is the company’s name.

Gregory Dober is a freelance writer in healthcare and ethics. He has been a contributing writer for PLN since 2007 and co-authored Against Their Will: The Secret History of Medical Experimentation on Children in Cold War America, published by Palgrave in 2013. [See: PLN, Nov. 2013, p.36].

Sources: Bloomberg News, Forbes, www.businessweek.com, Philadelphia Inquirer, Philadelphia Daily News, The American Independent, Pittsburgh Tribune-Review, St. Louis Business Journal, www.browardbulldog.org, Miami Herald, WHAS-TV, The Tennessean, Courier-Journal, Idaho Business Review, Associated Press, The Arizona Republic, Maine Public Broadcasting Network, Bangor Daily News, WANE-TV, Raton Range, Des Moines Register, Star-Tribune, The Nation, The Florida Current, www.usw.org, KPHO-TV, WANE-TV, Tucson Citizen, WCAV-TV, www.wdrb.com, www.modernhealthcare.com, www.cochs.org, www.wndu.com, www.afsc.org, www.americanownews.com