Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header

Aclu Federal Death Row Letter to Lappin 2008

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
LEGAL DEPARTMENT
NATIONAL PRISON
PROJECT

AMERICAN CIVIL LIBERTIES UNION

I

VIA FEDERAL EXPRESS
October 15, 2008
Mr. Harley Lappin
Director
Bureau of Prisons
320 First St. NW
Washington, DC 20534
Dear Director Lappin:
AMERICAN CIVIL
LIBERTIES UNION FOUNDATION
PLEASE RESPDND TO
NATIONAL PRISON PROJECT
915 15TH STREET, NW
7TH FLOOR
WASHINGTON, DC 20005-2112
T/202,393,4930
F/202393.4931
WWW.ACLU.ORG
ELIZABETH ALEXANDER
DIRECTOR
ATTORNEY AT LAW
NATIONAL OFFICE
125 BROAD STREET, 18TH FL.
NEW YORK, NY 10004-2400
T/212,549,2500
OFFICERS AND DIRECTORS
NADINE STROSSEN
PRESIDENT
ANTHONY D, ROMERO

As you are aware, the National Prison Project of the American Civil
Liberties Union Foundation continues to investigate conditions in the Special
Confinement Unit (SCU) at USP-Terre Haute. In August 2007, my colleague,
David Fathi, sent you a detailed letter outlining serious deficiencies in medical,
dental and mental health care, environmental conditions, and several other civil
liberties issues. Regrettably, we received no response from your office; rather, in
October 2007, we received a reply from Warden R.V. Veach, who dismissed
many of our most serious concerns. For your convenience, copies of both letters
are attached.
Based on a considerable body of evidence gathered in the months since
Warden Veach's reply,l I agree with Mr. Fathi's conclusion that many of the
conditions endured by men housed in the SCU may violate the Eighth
Amendment's proscription against cruel and unusual punishment. 2 I further echo
Mr. Fathi's desire to engage in a meaningful discussion with the Bureau in an
effort to avoid litigation.

EXECUTIVE DIRECTOR
RICHARD ZACKS
TREASURER

Now is a particularly difficult time for the men in the SCU. In May, the
government sought judicial permission to lift the stays of execution previously
granted to James Roane, Richard Tipton, Cory Johnson, Bruce Webster, Orlando
Hall, and Anthony Battle. 3 The men in the SCU are fully aware of this fact and
the resulting stress makes the issues discussed below even more urgent and

J I have spoken with prisoners in person in addition to written and telephone correspondence. In
addition, I have reviewed hundreds of pages of documents and have been in contact with counsel
for several prisoners. Many of these attorneys share the concerns discussed herein.

2 I also echo Mr. Fathi's recognition of the courtesy displayed by the SeD staff during my visits.
Kindly convey my gratitude to them.

Defendants' Renewed Motion for Judgment on the Pleadings & Renewed Motion to Lift the
Stay of the Plaintiffs' & Plaintiff-Intervenors' Executions, Roane v. Mukasey, No. 05-2337
(D.D.C. May 16, 2008).
3

1

salient. The Bureau's systematic denial of adequate medical, mental health, and
dental care causes inordinate fear, pain, and suffering among men facing the
prospect of a trip across the FCC campus to the death chamber.
Many of the men know you personally from your tenure as warden and
many continue to communicate their respect for the leadership you demonstrated
while at DSP-Terre Haute. I ask that you consider seriously this letter's
discussion of the dangerous deficiencies in the medical, mental health, and dental
care provided to SCD prisoners. Each of these deficiencies is grave, and all have
the capacity to kill, cause permanent harm, or cause the suffering of needless pain.
This letter's conclusions may be summarized as follows:
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

I. The Bureau of Prisons fails to provide constitutionally acceptable
medical care to SCD prisoners. Specifically:

•
•
•
•
•
•
•

Current policies and practices result in dangerously delayed
responses to medical emergencies;
SCD prisoners lack adequate access to sick call and acute
medical care;
Medical staff fail to make timely and necessary referrals to
specialists;
Care for prisoners with diabetes is medically and
constitutionally deficient;
Prisoners needing medications face substantial obstacles;
Preventive health care is poor; and
Signs of potentially serious health conditions are ignored.

II. Constitutionally adequate mental health care services are not
available to SCD prisoners.

III. SCD prisoners are denied access to timely, adequate dental care.
IV. Prisoners continue to endure incessant noise, resulting in sleep
deprivation and psychological and physiological stress.

***

2

I.

Evidence of Deliberate Indifference to Serious Medical Needs Provision of Health Care
A.

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Response to Medical Emergencies

Several prisoners 4 report dangerous problems with staff's delayed
response to medical emergencies. They report that the audio alarm that is
supposed to sound when a prisoner presses his emergency call button has been
either disabled or attenuated. According to the prisoners, the disabling or
attenuation of the audio alarm is a relatively recent event. They further report
that, although the call button may activate some form of alarm in the control
"bubble," the bubble is often unmanned. Given the number of hours per day that
SCD prisoners are locked down, a properly functioning emergency call button
system is their only means of alerting staff to a life-threatening incident. 5
In multiple recent incidents, the emergency call button system, to the
degree it even functioned as intended, failed to timely summon help. It was only
the screams of inmates and banging on cell doors that ultimately attracted staff
attention. Failing to timely respond to an emergency call button may constitute
actionable deliberate indifference. Velez v. Johnson, 395 F.3d 732, 736 (7th Cir.
2005). Officials who knowingly fail to maintain a working call button system
may also be held individually liable. Felton v. Godinez, No. 93-C-4584, 1996
WL 137645, at *5 (N.D. Ill. March 25,1996). Below are descriptions of several
recent medical emergencies. While individual witnesses may offer slightly
differing accounts, each ofthese incidents was urgent, had the capacity to cause
serious harm or death, and failed to receive a timely response by staff.

To protect their privacy, prisoners will be referred to by numbers. An identification key is
attached to this letter. Kindly consider the prisoners' privacy when you share this letter with
others both inside and outside of your office.

4

s Prisoner 2 submitted a BP-8 on this very issue. In response, he was told that, on March 18,2008,
"maintenance staff checked the control panel in the SeD control room and made necessary
adjustments to the auditory speaker of the panel." March 19, 2008 Response to Informal
Resolution submitted by Prisoner 2.
That the speaker required "necessary adjustments" supports Prisoner 2's assertion that the audio
alarm was either disabled or turned down. However, according to Prisoner 2, the audio alarm was
disabled or turned down once again shortly after the March 18th maintenance. Although Warden
Marberry claims that a backup system is in place "[i]fthe alarm is not acknowledged in a timely
manner," this backup system seems to do little to reduce the institution's dangerously slow
response to medical emergencies. Response to Request for Administrative Remedy No. 487815F1, dated April 24, 2008. Regardless, even if the system is currently operating as intended,
measures to ensure future operability are required.

3

1. Prisoner 1

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

On June 7, 2008, Prisoner 1 reports pressing his emergency call button at
approximately 6:34 p.m. Prisoner 1, a type-1 diabetic with a known history of
diabetic emergencies, had requested his insulin two hours earlier but had yet to
receive it. He felt very sick with the symptoms of hyperglycemia. Nobody
responded to his distress call. He pushed the emergency button again twice.
Instead of receiving a response by medical staff, the officer in charge sent an
inmate orderly to tell Prisoner 1 that the nurse was too busy passing out
medications elsewhere on the compound to deliver his insulin. Prisoner 1 waited
and pressed the button yet again. He reports that an officer passed by his cell and
said that he knew that the emergency could not be too serious because he had
heard Prisoner 1 yelling for help. Sometime after 7:41 p.m., a nurse finally
arrived at Prisoner 1's cell. His blood sugar was at 395 even though he had not
had anything to eat prior to the reading. 6 According to the American Diabetes
Association, pre-prandial (pre-meal) capillary plasma glucose should range
between 70 and 130mg/dl. 7 Prisoner 1 had a similar experience on April 26, 2008.
This casualness in responding to medical emergencies may one day cost the lives
of Prisoner 1 and those similarly situated.
2. Prisoner 2
On February 24,2008, Prisoner 2 suffered a cardiac emergency. He
pressed his emergency call button but reports that he received no response for
over forty-five minutes. Prisoner 2 sought assistance from the prisoner in the cell
across from him, who began yelling for help. After 10 minutes of yelling, an
officer finally responded. Prisoner 2 describes the situation in a BP-9:
There was approximately one hour that passed between the time I pressed
the emergency distress button in my cell and when the staff removed me
from that cell. I suffered severe pain during this time (and afterwards).
No officer responded to my request for assistance by way of the
emergency signaling device because it was deactivated and they were not
6 According the American Diabetes Association, peak post-prandial (post-meal) capillary plasma
glucose should not exceed I80mg/dl, measured one to two hours after the start of a meal.
American Diabetes Association, Standards ofMedical Care in Diabetes, 31 Diabetes Care S12,
S18 (Jan. 2008). Glucose levels may be measured using either whole blood or plasma. Glucose
levels in blood are generally 10-15% lower than levels measured in plasma. Robyn Graham, SelfMonitoring ofBlood Glucose (SMBG): Considerations for Intensive Diabetes Management, 30
Pharmacy & Therapeutics 1,8-9 (2005). It is unclear whether the glucometer used to measure
Prisoner 1's glucose reported his blood sugar level or whether the device converted the reading to
a plasma level. Regardless, Prisoner 1's glucose level indicates severe hyperglycemia.
7

American Diabetes Association, Standards ofMedical Care in Diabetes, supra, at SI8.

4

aware of my situation because they weren't in the SCU Control Room.
The range doors are kept shut and locked so even once [another prisoner]
began to holler for a staff member that a man was down it took another ten
minutes for the staff to respond. 8

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

According to Prisoner 2 and other prisoners, the arrival of the correctional
officer did little to provide the emergency care needed. After a lieutenant arrived,
Prisoner 2 was placed in a wheelchair and taken to the day room. The lieutenant
contacted the on-call physician, who was more than an hour and a half away. The
lieutenant told Prisoner 2 that, per policy, she could not call for an ambulance
unless she received prior physician approval. According to Prisoner 2, the
physician arrived approximately three hours after he first pressed his call button.
Only then was he transported to the emergency room via ambulance to be treated
for a critical cardiac incident involving, among other things, his left anterior
descending artery.9
Prisoner 2 could have died as a result of the BOP's inexplicable delay in
providing him with emergency care. Indeed, the left anterior descending artery is
commonly known as the "widow-maker artery." The Bureau's own Clinical
Guideline states that "[m]ortality from [myocardial infarction] increases from 1%,
when thrombolytic therapy is given immediately, to 10% when thrombolytic
therapy is given after 6 hours from the onset of symptoms. Therefore inmates
with clinical syndromes consistent with acute MI should be immediately
transferred to a community hospital for evaluation and treatment."IO BOP's
policy of requiring physician approval of emergency room visits when the on-call
physician is located an hour and a half away speaks of a reckless disregard for the
medical needs of the prisoners in its care. Indeed, the policy is so reckless that I
had difficulty believing that it existed until it was confirmed by Warden
Marberry, who offered this explanation:
Due to increased security concerns of inmates housed in the Special
Confinement Unit (SCU), it is necessary for a physician to make a medical
determination as to whether a SCU inmate is sent to the local hospital.
Upon arrival at the institution, the on call physician evaluated your
condition and determined it was medically necessary for you to be sent to
the local hospital for further evaluation and testing... There is no evidence

8

Request for Administrative Remedy (BP-9) No. 487815-F1 dated March 24, 2008.

9 Request for Administrative Remedy (BP-9) No. 487815-F1 dated March 24, 2008 and
hospitalization records.

10

BOP Clinical Practice Guidelines for the Management of Coronary Artery Disease (2001) § 3.

5

to sugges(that there were unreasonable delays in evaluating you or having
you transported to a local hospital.!!
While there mayor may not be "increased security concerns" for death
row prisoners, none of these concerns justify the denial of prompt medical care
for a prisoner with a life-threatening emergency. Indeed, Bureau policies already
contain procedures for authorizing emergency medical trips for high-security
prisoners. According to the policy, during non-duty hours, the Administrative
Duty Officer or on-duty Lieutenant may authorize such tripS.!2 The current policy
for SCU prisoners deviates from the Bureau's own rules and the consequences
may very well prove deadly.
AMERICAN CIVIL LIBERTIES

3. Prisoner 3

UNION FOUNDATION

In February 2008, over the course of several days, Prisoner 3 experienced
fever, bloody vomiting, dizziness, and sweating. At one point, he passed out in
the shower. Prisoner 3 reports pressing the emergency call button on multiple
occasions but failed to receive any response. According to Prisoner 3, officers
were unaware of his emergency because the audio alarm connected to the call
button had been deactivated. Ultimately, it was the yelling of his fellow prisoners
that attracted the attention of security staff. When personnel finally arrived,
Prisoner 3 was unable to stand upright. An officer told him to crawl to the door
so that he could be restrained. Prisoner 3 received no meaningful treatment and
never saw a physician. He is unsure of his diagnosis or whether his condition
required any follow-up. Prisoner 3's symptoms called for immediate, emergency
attention. He received none and, as a result, he suffered needlessly. It is my
understanding that counsel for Prisoner 3 has attempted to contact the warden
about her client's medical situation but has yet to receive a satisfactory response.
BOP's own policy notes that "ACA standards require a four minute
response to life or limb threatening medical emergencies.,,13 Clearly, staff at
USP-TH has not complied with the standard and, it seems, may be unable to do
so.

B.

Access to Acute Care and Sick Call

Access to acute health care is woefully deficient. The current system of
II

Response to Request for Administrative Remedy No. 487814-FI, April 25, 2008.

12 Program Statement 5538.04 (Escorted Trips) §§ 6(c)(l), 6(d)(2), 8. See also USP-TH
Institution Supplement THX-6400.02D (Urgent Medical and Dental Care) (Feb. 2007) § 5(b) ("the
Operations Lieutenant may initiate procedures for outside emergency medical care.")
13

Program Statement P6031.01 (Patient Care) § 9.

6

triage, referral to providers, and follow-up fails to meet even the basic health care
needs of SCD prisoners. While lockdown units such as the SCD may present
special challenges, prisoners are entitled to timely, unimpeded access to acute
health care. Changes to the current system are needed immediately.
1. Requests for Care & Availability of Sick Call

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Prisoners seeking medical attention report scribbling their complaints on
pieces of notebook paper. Ifthere is a special form for requesting sick call, it is
not in regular use. As a result, there is no meaningful record of a prisoner's
request for health care unless the prisoner writes a duplicate copy of his
handwritten slip. Requests for care frequently seem to disappear into a "black
hole." This practice is at odds with ACA standard 4-4346, which requires sick
call request forms. It is also at odds with BOP's own policy, which contemplates
an "Inmate Request for Triage Services form.,,14 According to multiple prisoners,
sick call is held only on weekdays, meaning that prisoners are unable to submit
sick call requests on weekends and holidays, a practice inconsistent with the
Institutional Supplement governing the SCD. Recently, Prisoner 4 submitted a
Request for Administrative Remedy challenging the adequacy of this policy. He
received the following quizzical response from the warden:
An investigation into your request was completed and reveals that we are
currently providing sick call 7 days a week, per policy. However, based
on your concerns, medical staff has since been instructed to take sick call
forms to include weekends and holidays. IS
As an initial matter, if the policy is to provide sick call seven days per
week, then, according to multiple prisoners, the policy was being ignored.
Second, if sick call actually was being conducted seven days per week as claimed
by the warden, then why would the warden need to instruct medical staff to take
sick call forms on weekends and holidays? An adequate correctional health care
system requires a suitable mechanism for prisoners to request care and receive a
timely response. Current practices in the SCD fall far short of this standard.
2. Timely and Appropriate Referrals to Providers
Prisoners report that they lack timely access to physicians and physicians'
assistants for non-emergency care. Once triaged, prisoners must wait, at a
minimum, until the following Wednesday before seeing a PA. Frequently, they
must wait until the Wednesday after that. Thus, prisoners needing health care
14

Program Statement P6031.0 1 (Patient Care) § 17.

15

Response to Request for Administrative Remedy No. 484367-F1, March 31, 2008.

7

deemed to be non-urgent must wait one or two weeks b~fore receiving medical
attention. This is an unacceptable delay, particularly for painful conditions.
Further, in the event that the triage nurse mistakenly overlooks the seriousness of
a prisoner's symptoms, the prisoner is put at extreme risk. The health services
department is very open about its delays. In a response to a BP-8, health services
responded that "[0 ]nce you are evaluated on sick call, you should be scheduled
within two weeks to be evaluated by the PA.,,16
3. Prisoner 5

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

The case of Prisoner 5 illustrates some of the significant barriers faced by
prisoners needing acute medical care. On May 5, 2006, Prisoner 5, who has a
history of neck and back trauma, slipped and fell while stepping out of the
shower, hitting his head and injuring his back. That evening, a health care
provider inserted staples in Prisoner 5's head to treat his wounds but provided no
additional care for his injuries, let alone screening for neurological damage. The
next morning, Prisoner 5 awoke in severe pain and unable to move his head. He
experienced shooting, electric-like sensations up and down his spinal column.
Despite his pleas to nursing and correctional staff, he reports receiving no
additional meaningful medical attention until May 10th - five days after his fall when health staff realized his condition warranted immediate evaluation at the
emergency department of the local hospital, where it was determined that Prisoner
5 had suffered a concussion and other injuries. Upon return to the SCU, staff
failed to provide him with the pain medications prescribed by the hospital
physician at discharge. Instead, after he had suffered excruciating pain for several
days, staff told him that he could purchase the medication from the commissary if
he had sufficient funds to do so. Ultimately, Prisoner 5 reports that he went
without pain medication for approximately two weeks.
Prisoner 5's care did not improve. Staff ignored multiple sick call
requests and failed to remove the staples from his head within the time frame
originally intended, placing him at risk of complications to his wounds. Prisoner
5 reports never seeing a physician and continued through the summer to
experience a combination of pain, immobility, and multiple unanswered requests
for sick call. As the Seventh Circuit noted in overturning the dismissal of a
deliberate indifference claim, "[a]ny injury to the head unless obviously
superficial should ordinarily be considered serious and merits attention until
properly diagnosed as to severity." Murphy v. Walker, 51 F.3d 714, 719 (7th Cir.
1995).

16

Memorandum to Prisoner 4 regarding Informal Resolution, March 13,2008.

8

Prisoner 5 reports spending several painful months in a wheelchair. He
received no physical therapy and only1he most cursory of medical supervision. It
was during this period that he filed a motion to drop his appeals and volunteer for
execution. In his motion, he requested death within 60 days, adding that "I no
longer wish to live like this just to be put to death anyway." 17 Quite simply, the
Bureau appears to have cared little for Prisoner 5' s welfare and exhibited
recklessness consistent with deliberate indifference to a serious medical need.
Taken together, it is clear that providing timely access to health care
services simply is not a priority. The men awaiting execution in the SeD deserve
better - much better.
AMERICAN CIVIL LIBERTIES
UNION FOUNOATION

4. Failure to Address Symptoms of Serious Illness
Prisoner 6 has suffered from painful swelling in his legs and feet for over a
year but has received little treatment. He also reports suffering from chest pain,
labored breathing, and fatigue. This cluster of symptoms could indicate a serious,
life-threatening cardiovascular condition. BOP medical staff issued him T.E.D.
hose, which are frequently used to prevent blood clots or other vascular problems.
This suggests that medical staff is on notice of Prisoner 6' s problem.
Nevertheless, Prisoner 6 reports that the clinical director curtly dismissed his
complaints after the most cursory of visual examinations. Proper diagnosis
requires prompt evaluation. It is my understanding that counsel for Prisoner 6
have received copies of his medical records through a Freedom ofInforrnation
Act request and will take appropriate action to ensure that their client receives the
care he needs.

c.

Referrals to Specialists

With regard to specialty medical care, multiple prisoners report significant
delays - and seemingly unwarranted denials. Trips to off-site providers are rare,
leaving prisoners without timely access to orthopedists, gastroenterologists,
ophthalmologists, endocrinologists, and other providers. When combined with
the lack of access to on-site health care, prisoners needing consultations with
outside specialists are left to suffer.
1. The Ortiz Litigation: An Indication of a Serious Systemic Problem
The ongoing litigation on behalf of Arboleda Ortiz provides a typical

17

Prisoner 5 later withdrew this motion.

9

example ofthe Bureau's failure to provide proper, timely specialty care. 18 In
2001, an ophthalmologist diagnosed Mr. Ortiz with pterygia (masses of thickened
conjunctiva that cover part of the eyeball). The doctor recommended surgical
removal but this recommendation was denied. During the next five years, Ortiz
continued to suffer eye problems and his doctors continued to recommend
surgical intervention. They noted that Ortiz had "difficulty seeing" and that the
pterygia impaired his vision. Each recommendation for surgery was met with a
denial with no further explanation. On June 13,2008, the United States Court of
Appeals for the Seventh Circuit reversed the district court's ruling with respect to
claims against Dr. Thomas Webster, the current Clinical Director at USP-TH.
The Court of Appeals was clearly disturbed by Webster's conduct:
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Dr. Webster, the only medical defendant, denied Ortiz surgery after eye
specialists had recommended it, and although he belatedly provided an
explanation for the denials - that the eye specialists found that the pterygia
did not affect Ortiz's vision - the explanation does not square with the
record. Instead, the records show that his vision worsened from 20/80 to
20/100 between 2001 and 2003, that he had "difficulty seeing," and that
the pterygia were causing "visual distortion." And, contrary to the district
court's recitation of the facts, Ortiz did not receive surgery within 75 days
of when it was first recommended; instead, his surgery to remove only one
of the pterygia occurred in 2006, over 5 years after the initial
recommendation and only after Ortiz filed this lawsuit. 19
The Seventh Circuit's indictment of the poor care afforded to Mr. Ortiz
should serve as a wake-up call for the Bureau. Mr. Ortiz's ordeal is hardly
unique. Several other prisoners continue to suffer similarly.
2. Prisoner 3
Prisoner 3 has a history of severe chest and abdominal pain. This problem
appears in his medical records as early as August 8, 2007, when he was prescribed
ranitidine for what was assumed to be heartburn. More than two months later,
medical records indicate that Prisoner 3 reported that "[i]t still feels like my chest
is going to explode." A BP-S622.060 (Radiologic Consultation Request/Report)
indicates that x-rays had been ordered for Prisoner 3 on October 4,2007 to help
diagnose "chest pain." However, despite the severity of his pain, the Bureau
failed to perform the x-rays until December 28,2007. The results were not
reviewed and signed off on until January 14,2008. Two and a half pain-filled
18 Ortiz v. Bezy, et aI., No. 2:05-CV-246-LJM-WTL (S.D. Ind.). SCD prisoner-paralegals
prepared the legal documents for this litigation as Mr. Ortiz is unable to do so himself.
19

Ortiz v. Bezy, et aI., No. 07-3807,2008 WL 2415857, at *3 (7th Cir. June 13,2008).

10

months elapsed while he awaited the most simple of radiologic procedures. By
the time the x-rays were taken, Prisoner 3 was complaining of vomiting at every
meal.

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

The Utilization Review Committee met on January 17,2008 to consider
Prisoner 3's case. Although Health Services had already had five months to
determine an effective course of treatment, the URC deferred action until yet an
additional medication regimen was tried. On February 13, 2008, Prisoner 3
complained of a squeezing pain in his abdomen and of spitting up blood. Finally,
on February 14, the URC approved him for an esophagogastroduodenoscopy
(EGD). The URC classified his need as "Level 2" and "Priority 2," meaning that
the procedure " ... cannot be reasonably delayed without the risk o.ffurther
complication, serious complication, significant pain or discomfort ... " (emphasis
in original) and that the exam should occur within 30 days. Prisoner 3 did not
have his EGD until late June 2008. This delay is unacceptable. Chest and
abdominal pain are serious matters that require urgent attention and prompt
diagnosis. The care provided to Prisoner 3 falls short of the standards set forth in
the Bureau's own Clinical Practice Guidelines, which call for ambulatory pH
monitoring, upper endoscopy, or both if the patient fails to improve after eight
weeks ofH 2 antagonist therapy (e.g., ranitidine) and four weeks of proton pump
inhibiter treatment (e.g., omeprazole).2o Medical staff was clearly aware of
Prisoner 3' s pain; the decision to ignore it for so long demonstrates deliberate
indifference, particularly if staff fails to provide proper follow-up based on
Prisoner 3' s EGD results.
3. Prisoner 7
Prisoner 7 suffers from a chronic, painful skin condition. For several
years, much of his body has been covered with bright red sores. In 2000, while
still in state custody, a board-certified dermatologist wrote that this condition may
be the result of an allergic reaction to a metal bullet lodged in Prisoner 7' s right
hip. In the resulting progress note, the doctor's recommendation is underlined:
"Needs to have the bullet removed." In 2001, a state court judge ordered that
Prisoner 7 be taken to a doctor for evaluation and possible removal of the bullet.
Later that year, the Director of Emergency Medicine at Sequoyah Memorial
Hospital (Oklahoma) wrote that "I feel that there certainly can exist in a high
probability a causal relationship between the persistent rash on his lower
extremities and the existing bullet fragment. .. without removing the bullet
fragment, there may exist a potential for further progression of the rash, which
may in tum become more serious and/or disfiguring." It is my understanding that
20 Clinical Practice Guidelines for Gastroesophageal Reflux Disease (GERD) Dyspepsia, and
Peptic Ulcer Disease, Appendix 1 (November 200 1).

11

BOP staff have been made aware of these state medical records. On November 9,
2006, after Prisoner/'s arrival at USP-TH, an orthopedic surgeon wrote that "It is
the consensus ofthe doctors who have seen him that [the bullet] is what is causing
the sores." As of my most recent contact with Prisoner 7, the bullet remains in his
hip, his sores persist, and he still awaits medically adequate treatment.
Official responses to Prisoner 7's grievances suggest a medical system that
fails to meet the needs of the population it is meant to serve. In a response to his
BP-ll Central Office Administrative Remedy Appeal, a BOP official wrote that:
[r]elevant portions of your medical record have been reviewed which
reveal that you were evaluated by the staff physician on October 18, 2006,
for your complaint of skin rash due to a bullet being lodged in your right
hip. During the evaluation, the staff physician evaluated you and
determined that you did not suffer from any erosion of the bullet through
the skin nor was there any skin irritation at the site of the healed bullet
wound. As such, your request to have the bullet removed is not clinically
indicated and will not be performed. 21

AMERICAN CIVIL LIBERTIES
UNION FOUNOATION

This response - and the doctor's evaluation cited therein - do not address
Prisoner 7's request that his allergic skin reaction be treated. He did not complain
of the bullet protruding through the skin or of irritation limited to the wound site.
After waiting over six months for a final reply, the Central Office upheld the
denial of treatment for symptoms other than the ones actually suffered by Prisoner
7. In February 2007, he raised the issue again in a Request for Informal
Resolution. In response, he was told that the records of his previous consultation
could not be located, that no orthopedic specialist was available to see him due to
contract issues, and that he should sign up for sick call ifhe still had problems. 22
On May 23,2007, Warden Veach informed him that USP-TH had finally retained
a new orthopedic surgeon. Four months later, Prisoner 7 submitted a "cop-out"
stating that "[t]he sores are getting worse and spreading to my arms and head... "
and asking when he would be seen by the new orthopedic surgeon. The Medical
Secretary replied that Prisoner 7 hadn't been referred for a consult until
September 12, 2007 and that he would "be evaluated once [his] name reaches the
top of the list."
Prisoner 7 did not see the specialist until November 2007 and has yet to
receive adequate treatment for his condition. As Prisoner 7 wrote in a BP-ll,
"[i]fyou don't know what's wrong then send me somewhere w[h]ere they can
21 Response to Central Office Administrative Remedy Appeal (BP-11) No. 418953-A1, dated
January 26,2007.
22

Undated Response to Request for Informal Resolution (BP-8) submitted on February 21,2007.

12

find out. .. I bleed all over my clothes, bed[d]ing, and the sores are spreadin.g. I
need to know what's wrong.',23 Regardless of what the specialist found, Prisoner
7 still suffers and BOP is responsible for diagnosing, treating, and monitoring his
serious medical need. Unlike many medical conditions, his skin affliction is
readily visible to even a lay observer. He needs immediate care. Further, it is
unacceptable to deny care simply because the patient is not at "the top ofthe list."
4. Prisoner 8

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Prisoner 8 has a long history of knee problems which, in the past, required
two surgical interventions. He still experiences significant, chronic pain.
Beginning in the fall of2006, he began asking to see an orthopedist. He waited
over a year before seeing the orthopedic specialist in November 2007. After the
visit, BOP refused to approve the medication prescribed by the specialist. Prisoner
8 continues to suffer even as he awaits a ruling on the government's motion to
vacate his stay of execution.
5. Prisoner 4
Prisoner 4 has a history of retinal detachments and other serious eye
problems, all of which were documented in his records from MCC-Chicago. In a
consultation notes dated February 8, 2006, Prisoner 4's eye care provider wrote
that Prisoner 4 should have cataract surgery within 6 to 12 months. In July 2006,
after arriving at the SCU, an optometrist likewise noted that Prisoner 4 should be
considered for cataract surgery. Nothing happened. In March 2007, the same
optometrist noted an advanced, hypermature cataract in Prisoner 4's left eye. Yet
again, he wrote that Prisoner 4 needed an evaluation for cataract surgery by an
ophthalmologist. Fifteen months passed before he finally saw an ophthalmologist
in June 2008. According to Prisoner 4, the ophthalmologist recommended a
consultation with a retinal specialist and that Prisoner 4 be cleared for cataract
surgery. Given the state of his vision, per BOP guidelines, he is a candidate for
surgery.24 It appears that Dr. Webster signed off on the ophthalmologist's
consultation report. Prisoner 4's optometrist recently told him that his cataract
was getting worse and that the surgery could trigger another retinal detachment.
Given the dangerously slow response time to medical emergencies at the SCU,
Prisoner 4 is terrified that he will suffer a post-surgical retinal detachment in his
cell with no one to seek emergency care on his behalf.
As noted above, the Ortiz litigation should serve to remind the Bureau that
constitutionally acceptable health care requires the provision of prompt specialty
23

Central Office Administrative Remedy Appeal (BP-l 1) No. 475571-Al, March 4,2008.

24

BOP Ophthalmology Guidance (February 2008) at 5.

13

care. Mr. Ortiz will.continue to vigorously litigate his deliberate indifference
claims against the Clinical Director at DSP-TH. A delay of six months before
referral to a specialist may constitute deliberate indifference to a serious medical
need. Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). Mr. Ortiz waited five
years, and others continue to wait. Failing to follow a specialist's sound
recommendation may also constitute deliberate indifference. Gil v. Reed, 381
F.3d 649, 663 (7th Cir. 2004); Jones, 193 F.3d at 490.

AMERICAN CIVIL LIBERTIES
UNION FOUNOATION

I am told that multiple prisoners were recently sent off-site to see
specialists. This is a welcome development and, I hope, the recommendations of
the specialists will be heeded and prisoners will receive proper follow-up.
Proactive medical care could have averted Mr. Ortiz's need to litigate. By this
letter, I hope that we can work together to avoid the need for additiona11itigation.
D.

Care for Prisoners with Diabetes

The American Diabetes Association (ADA) holds that "[p]eop1e with
diabetes in correctional facilities should receive care that meets national
standards.,,25 Care at Terre Haute falls woefully and dangerously short ofthese
standards. At least two SCD prisoners suffer from diabetes serious enough to
jeopardize their daily wellbeing, organ function and, ultimately, their lives.
Proper care for these prisoners includes frequent, routine monitoring of glucose
and hemoglobin Al C levels, appropriate diet and exercise opportunities, and care
for life-threatening complications such as hypertension, dyslipidemia, kidney
disease, retinopathy, and neuropathy.26 Failure to timely diagnose and treat these
complications may cost a diabetic prisoner his eyesight, limbs, and kidney
function. There are major deficiencies in the care provided to diabetic SCD
pnsoners.
1. Failure to Provide a Medically Appropriate Diet
BOP inexplicably fails to provide a diabetic diet to prisoners with
diabetes. Prisoner 1, for example, does not receive a diabetic diet even though his
intake assessment, signed by the DSP-TH Clinical Director, clearly calls for such
a diet. For Prisoner 1 and other diabetics, the only alternative to the standard fare
diet is to apply to receive the common fare diet, which is designed to
accommodate the dietary needs of religious prisoners.

25 American Diabetes Association, Diabetes Management in Correctional Institutions, 31 Diabetes
Care S87, S87 (Jan. 2008).

26Id. at S87, S90.

14

AMERICAN CIVIL LIBERTIES

Prisoners report that, in order to receive common far~, they must apply
through the chaplain and answer a series of questions related to religion. It is
unclear whether this diet is actually more appropriate for diabetic prisoners than
the standard meals. It is well-established that proper nutrition is critical to the
care of persons with diabetes,27 and diabetic diets are commonplace injails and
prisons throughout the country. That BOP fails to provide such a diet is
disturbing and incomprehensible, especially when BOP's own Patient Care
Program Statement specifically authorizes medical staffto offer such diets if
clinically indicated. Further, BOP's Food Service Technical Reference Manual
clearly states that "[a] diabetic meal plan is indicated for any person with diabetes
or documented glucose intolerance and for weight management.,,28 Indeed, the
Manual dedicates over 30 pages to the preparation of diabetic diets.

UNION FOUNOATION

In less secure settings, nutritional counseling and education may help
prisoners select a proper diabetic diet from the choices available in the
institution's cafeteria. But this approach is unworkable in secure units in which
prisoners have few, if any, opportunities to select menu items.2 9 Because SCD
prisoners do not eat from the mainline, they are unable to self-select healthy
options. Given this circumstance, the Manual requires the Bureau to provide a
medically appropriate diet. 3o The repercussions of failing to do so may be lifethreatening, as outlined below.
2. Poor Management of Prisoners with Diabetes - Glycemic Control
Prisoner 1 and Prisoner 2 are type-l and type-2 diabetics, respectively.
During their incarceration in the SCD, both have had "severely uncontrolled
diabetes" as defined by BOP criteria. 3l Prior to mid-2007, health staff provided
dangerously infrequent blood glucose monitoring. Prisoner 2's medical records
indicate that, between February 2005 and May 2007, staff checked his blood
glucose fewer than 50 times. The checks that did occur were hardly regular;
rather, they occurred at seemingly random intervals, suggesting the lack of a
treatment plan. In mid-2007, Bureau officials increased the frequency of blood
glucose checks for SCD prisoners. This was a welcome and necessary step, and
all parties involved are grateful.

27

American Diabetes Association, Standards ofMedical Care in Diabetes, supra, at S20-22.

28

Food Service Technical Reference Manual TRM 4701.02 at 62.

American Diabetes Association, Diabetes Management in Correctional Institutions, supra, at
S89.

29

30

Food Service Technical Reference Manual at 45.

31

BOP Clinical Practice Guideline: Management of Diabetes (2008) at 10.

15

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

But increasing the frequency of checks, while a po_sitive development,
appears to have gone only so far in helping Prisoner 1, a type-l diabetic, control
his condition. Prisoner 1's blood sugar continues to reach levels in the 400s.
During the course'ofhis incarceration in the SCD, Prisoner 1 has had multiple
life-threatening diabetic emergencies. Typical of such emergencies is the incident
documented in his BOP medical file on December 17, 2006: "Inmate was found
to be lying in his bed. Inmate is a known diabetic. Extremely diaphoretic. Was
not alert or oriented but was moving about bed and moaning. Noted to have
saliva pouring out of mouth. Blood sugar noted to be 34." Three weeks before
this incident, the warden, in a BP-9 response, informed Prisoner 1 that he was
"receiving proper medical treatment for the aforementioned [diabetic] issues.,,32
And four weeks after the emergency, the Regional Director assured Prisoner 1
that health staff were "aware of your concerns and have been responsive to your
requests.,,33 Similarly, on October 26,2007, Prisoner 1 was "found in his bed
non-responsive with clonic/tonic movements systemically. the prisoner was
extremely diaphoretic." Prisoner 1 was taken to an exam room and given
intravenous fluids. Six minutes elapsed before he regained consciousness.
Despite the graveness of this emergency/4 the nurse felt that no follow-up
medical care needed to be scheduled. Rather, health staff would follow-up only
as needed. Prisoner 1 did not see a physician until November 7th.
Prisoners 1 and 2 report that their life-saving medications are delivered at
inconsistent times. For proper control of diabetes, insulin delivery should be
coordinated with meal service. The BOP's Clinical Practice Guideline
unequivocally echoes this principle: "The consequences of insulin/food mismatch
are, at best, suboptimal control of hyperglycemia; at worst, the result is frequent
and potentially severe hypoglycemic episodes." The American Diabetes
Association concurs: "[t]iming of meals and snacks must be coordinated with
medication administration as needed to minimize the risk of hypoglycemia... "
The Bureau has consistently flouted these bedrock principles of diabetic care.
When prisoners seek redress, they are brushed off with bureaucratic indifference.
Typical of the boilerplate responses received by prisoners is this example:
FCC Terre Haute medical staff acknowledge that you may not have
received your insulin injection at exactly the same time as normal on May
27,28,29,30, and 31, 2007, however, you did receive the injection,

32

Response to Request for Administrative Remedy No. 430701-Fl, dated November 27,2006.

33

Response to Regional Administrative Remedy Appeal No. 430701-Rl, dated January 17, 2007.

34 Altered mental status, diaphoresis, and seizures are symptoms of "severe hypoglycemia" which
is a "medical emergency." American Diabetes Association, Diabetes Management in
Correctional Institutions, supra, at S89.

16

without suffering from any medical complications. 35
Not only are the responses to the prisoners' BP-lls grossly inadequate, it
should be noted that the responses were generally written six months or more
after the underlying events occurred. A patient asking for the care to which he is
entitled should not have to wait six months to receive a conclusive reply. Further,
on multiple occasions, health services fails to provide even a boilerplate response
to properlfdy submitted Informal Resolution requests (BP-8s). When unit staff
admirably attempt to follow up on the prisoners' BP-8 requests, they are often met
with the same response that the prisoners receive: silence. 36
3. Improper Management of Diabetic Complications

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

It appears that Prisoner 2' s diabetic complications are being neglected.
Prisoner 2's attempts to be vigilant about his insulin have been met by apathy. In
response to a BP-ll dated September 25,2007, a BOP official acknowledged that
Prisoner 2's laboratory results "remain at high levels.,,3? However, a few
sentences later, the official concludes that "[t]he record reflects you are receiving
appropriate medical care and treatment for your diabetes condition." When
Prisoner 2 raised similar concerns about his disease control a few months later,
the same BOP official replied that these concerns had previously been addressed
and that the Bureau would provide no further response.

Patients with diabetes are at increased risk of cardiovascular disease.
Accordingly, the BOP Clinical Guideline asserts that "[l]ipid disorders should be
managed aggressively in diabetic patients to reduce the risk of serious
cardiovascular events." Although Prisoner 1's cholesterol levels have improved,
his triglycerides remain unacceptably high. Prisoner 2 is in a similar situation.
In a BP-IO dated June 19,2007, Prisoner 2 cited the BOP Clinical Guideline and
attached copies oflaboratory results indicating triglyceride levels of 450 and 511
mg/dL (the BOP treatment goal for diabetics is 150 mg/dL or less) and HDL
levels of29 and 28 mg/dL (the BOP treatment goal for diabetics is 40 mg/dL or
35 Request for Administrative Remedy (BP-9) No. 456291-A1. For nearly identical responses, see
Nos. 455064-A1, 455068-A1, 455061-F1, 455070-A1, 456287-A1, 456290-A1, 456721-A1, and
456471-A2.

For example, in a memorandum dated July 2,2007 from the SCU Unit Counselor to Prisoner 1,
the Counselor writes "This memorandum is in reference to the informal resolution that you filed in
reference to the Health Services Department concerning your diabetes. The Health Services
Department was contacted in reference to this issue and asked to assist me with providing you
with a response in an effort to informally resolve this matter. They failed to reply to my requests
timely."
36

37 Response to Central Office Administrative Remedy Appeal No. 453503-A1, dated September
25,2007.

17

greater).38 Notwithstanding that Prisoner 2's lipid levels were dangerously out of
line with BOP's Clinical Practice Guideline, the Regional Director replied that
"[w]e have reviewed the documentation related to your appeal. We have
determined the HSD staff members are aware of your medical status. They are
providing ongoing assessment and treatment per the BOP's Patient Care Policy,
Program Statement 6031.01, and the BOP's Clinical Practice Guidelines for
Diabetes.,,39 Within a few months of that response, Prisoner 2 suffered a serious
cardiovascular event that could have cost him his life.

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Prisoner 2 also suffers from a diabetic-related retinopathy, an eye
condition that, according to the Clinical Guideline, "can lead to retinal
detachment and irreversible vision loss." It is unclear whether Prisoner 2's vision
has already suffered irreparable damage. Regardless of the harm already done, he
requires medical intervention by specialists to treat this serious and potentially
disabling condition.
Further, it is well-established that diabetic patients are prone to kidney
disease. Prisoner 1's lab results, dated January 29,2008, show a significantly
elevated blood creatinine level. These results appear to be initialed and
acknowledged by the FCC-TH Clinical Director. Prisoner 1 must be monitored
for possible chronic kidney disease.
BOP has been on notice of the grave deficiencies in its care of diabetic
SCD prisoners for some time. My office expressed serious concerns to you
directly last year, as have other counsel. I urge you to take immediate steps to
improve care before a diabetic emergency or complication proves fatal.

E.

Medications

SCD prisoners seeking effective, clinically appropriate medications face
an uphill battle. Indeed, clinical staff seem to expend more effort denying
medications than they do prescribing and dispensing them. The medications
sought by SCD prisoners are not "lifestyle" drugs or medically optional. Rather,
they are important treatments for serious medical conditions.
1. Prisoner 7
Prisoner 7 has a documented history of stomach ulcers and related
38 Regional Administrative Remedy Appeal (BP-IO) No. 452452-Rl. BOP's lipid goals for
diabetics are set forth in the BOP Clinical Practice Guideline: Management of Diabetes (2008) at
36.
39

Response to Regional Administrative Remedy Appeal No. 452452-Rl dated July 23,2007.

18

AMERICAN CIVIL LIBERTIES

problems dating back at least eight yeats. His BOP medical records indicate a
diagnosis of gastroesophageal reflux disease (GERD) as early as October 18,2006. When untreated, he vomits up his food, experiences acid reflux, and passes
bloody stools. Although BOP's Clinical Practice Guideline emphasizes the value
of upper endoscopy and other diagnostic tests, Prisoner 7 has never received these
procedures. Instead, medical staff has subjected him to extended medication
outages and the arbitrary discontinuation of treatment with omeprazo1e, a
medication that provides relief of Prisoner 7' s symptoms. At times, they have
refused to prescribe omeprazo1e and, instead, prescribed ranitidine - a medication
that has been ineffective for Prisoner 7's condition. At other times, staff has
instructed him that he must purchase his omeprazo1e from the commissary (at a
cost of over $17.00 per box).

UNION FOUNDATION

As an initial matter, knowingly continuing to treat Prisoner 7 with an
ineffective medication states an Eighth Amendment claim for deliberate
indifference to a serious medical need. On two occasions, the Seventh Circuit has
addressed this very issue. In Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005), the
court reversed the dismissal of claims against a defendant who had failed to
prescribe omeprazo1e and, instead, continued the prisoner-patient on an
ineffective course of treatment. In McCarty v. Pitzer, No. 96-2301, 1997 WL
2225869 (7th Cir. April 20, 1997), the court allowed claims to proceed when a
prison doctor insisted on prescribing ranitidine instead of omeprazo1e when the
former had proven ineffective and no justification for the substitution had been
offered.
Second, Program Statement P6541.02 (Over-the-Counter Medications)
authorizes medical staff to refer prisoners to the commissary to purchase over-thecounter medications "in response to complaints related to cosmetic and general
hygiene issues or symptoms of minor medical ailments." Prisoner 7' s
documented history of gastrointestinal disease is hardly a matter of cosmetics,
general hygiene, or a minor medical ailment. And, while it is true that the
Bureau's National Formulary (2007) and the Clinical Guideline for the treatment
of GERD place certain conditions on the prescription of omeprazo1e, it appears
that Prisoner 7 satisfies the conditions and should be eligible to receive this vital
medication by prescription.
2. Prisoner 2
Prisoner 2, discussed above, was discharged from a local hospital in
February 2008 after suffering a cardiac emergency. He reports that he waited five
days before receiving the first dose of a critical medication prescribed by the
hospital cardiologist. My office will be looking at Prisoner 2's records to
determine the risk at which he was placed by this inexplicable delay. It should

19

also be noted that he received little if any physician follow up upon returning to
the SCU, and that he was denied a diabetic diet.
3. Prisoner 8

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Prisoner 8 saw an orthopedic specialist for chronic, excruciating knee
pain. Prisoner 8 has a history of not tolerating several standard pain medications,
which cause him gastrointestinal bleeding, vomiting, diarrhea, and abdominal
cramps. Given this history, the specialist prescribed the pain medication
Celebrex. After a substantial delay, medical staff refused to grant non-formulary
approval for this medication. While it is true that Celebrex is a non-formulary
drug,40 this fact does not absolve BOP from its obligation to provide proper pain
reliefto Prisoner 8. Whether with Celebrex or a suitable substitute, Prisoner 8 has
the constitutional right to receive safe and effective treatment for his serious knee
pain. He continues to suffer as a result of BOP's conduct.
F.

Infectious Disease, Preventive Health Care, and
Documentation

The failure to identify, treat, and prevent infectious diseases creates
needless suffering for individual prisoner-patients and substantial dangers for staff
and the entire prison population.
1. Management of a MRSA Case

Prisoner 7's medical records indicate a diagnosis of methicillin-resistant
staphylococcus aureus (MRSA) based on laboratory tests performed on January
3,2008 and reported five days later. However, nobody informed him of the
results - and treatment was not started - until early February. Aside from any
prejudice to Prisoner 7's health, a four-week delay in treating an infectious
disease puts other prisoners at risk.
2. Preventive Health Care
This disregard for basic principles of public health extends to the
institution's gross failure to implement the vaccination protocols mandated by the
Bureau's own policies. 41 In a recent Department of Justice Inspector General's
report, auditors reviewed compliance with various health care-related
performance measures by institutions. USP-TH performed poorly in several
40

BOP Health Services National Formulary (2007) at 21.

Vaccination protocols are set forth in the BOP Preventive Health Care Clinical Practice
Guidelines (April 2007).

41

20

areas, hl,lt the most serious deficiencies were found to be in the institution's _
vaccination program. Only one percent of eligible prisoners had received a
measles/mumps/rubella vaccine, onlyforty percent had received a tetanus vaccine
within the past ten years, and only forty-eight percent of eligible prisoners had
received vaccination against hepatitis A. Nine percent of prisoners had not
received hepatitis B testing or vaccination and fourteen percent had not received
an annual influenza vaccine. 42

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Compliance with several other measures of preventive health care
performance was equally poor. Only eighteen percent of prisoners had received a
cardiovascular risk calculation in the last five years. Given the significant number
of SCU prisoners with risk factors for cardiovascular disease, it is likely that
prisoners will suffer death or injury before health staff assess their risk and take
prophylactic measures. Similarly, only thirty-six percent of prisoners had
received a current body mass index calculation. A full twenty percent had not
received a fecal occult blood test, which is used to screen for colorectal cancer
and other serious diseases. And twenty-two percent had not received a hearing
screening test - an unfortunate statistic given the level of noise to which SCU
prisoners are subject (see Section IV, below).
When asked why vaccination rates were so low, USP-TH health staff
responded that "they did not provide routine tests and vaccines because of staffing
inadequacies and scheduling constraints.,,43 This response is no more acceptable
than the underlying gross failure to provide vaccines and other preventative health
care.
3. Non-Compliance with BOP Documentation Protocols
Finally, it appears that USP-TH health services staff fail to document key
health care data as specifically required by BOP policy. The Bureau requires that
the institutional Health Services Administrator (HSA) prepare quarterly reports
"to help monitor the health care services provided.,,44 Among other things, in her
quarterly report, the HSA must document (1) the use of health care services by
category; (2) referrals to specialists; (3) the number of medication, laboratory, and
radiology orders filled; (4) hospital admissions; and (5) serious injuries, illnesses,
deaths, or offsite transports. On May 19, 2008, my office submitted a Freedom of
Information Act request asking for copies ofthese quarterly reports. On August
25,2008, BOP Regional Counsel informed me that "[i]nstitution staff conducted a
U.S. Department of Justice Office of the Inspector General, Audit Division, The Federal Bureau
ofPrison's Efforts to Manage Inmate Health Care, Audit Report 08-08 (February 2008) at 93-94.

42

43

!d. at 31.

44

Program Statement P6010.02 (Health Services Administration) § 7(b).

21

thorough search for th_e records responsive to your request." However, institution
staff were unable to locate any of the quarterly reports required by BOP policy.
Similarly, BOP requires the HSA to "maintain a Consultant Log Book reflecting
times and dates of all consultant visits.,,45 No such log book could be found in
response to my FOrA request. Given the seriousness ofthe deficiencies found in
medical care at USP-TH, the absence of these documents is alarming.
II.

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Failure to Provide Mental Health Care

Prisoners uniformly report that they lack meaningful access to even the
most basic level of mental health care. Evaluations are cursory, programming is
unavailable, and the Complex lacks an on-site psychiatrist. Treatment of mentally
ill prisoners is minimal.
1. Lack of Meaningful Evaluation
A mental health care provider tours the unit periodically, accompanied by
security staff. The provider stops at each cell and, through the cell door, asks the
prisoner ifhe is doing okay. Quite literally, prisoners are asked if they are "all
right" and the "clinical" encounter ends just seconds after it began. Frequently,
these conversations occur within listening distance of security staff and other
prisoners, making confidential communication impossible. Prisoners express
serious concerns about whether these conversations could be used as evidence in
their post-conviction proceedings and, understandably, are extremely hesitant to
participate. Even if they chose to participate, the value of a "drive-by" mental
health consult would be limited. Minute-long cell-front consultations do not
satisfy the Bureau's legal duty to provide mental health care to prisoners. Further,
the notes written by clinical staff are often boilerplate, even when the subject is a
prisoner with serious, documented mental illness. In one instance, it appears that
a prisoner's periodic mental health evaluation was based on observations made
while the prisoner was having his teeth cleaned. Based on this observation, the
Ph.D. psychologist concluded that the prisoner "does not appear to be a danger to
self or others at this time."
2. Insufficient Staffing and Treatment
Prisoners who receive care beyond these cursory screenings are seen by a
provider in Springfield, Missouri via a tele~psychiatry consult. It is my
understanding that these consultations are solely for the purpose of prescribing
psychotropic medications. Putting aside the question of whether a condemned
prisoner's mental health needs can be adequately met by an unfamiliar provider
45

Program Statement P6010.02 (Health Services Administration) § 7U).

22

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

located hundreds of miles away, the therapeutic value of these interactions is
ques1ionab1e. It appears that prisoners do not receive psychotherapy or
counseling of any sort, and it is unclear whether prisoners receive the kind of
medication monitoring that should accompany all courses of psychotropic
medications. Further, prisoners report that there is no on-site psychiatrist at FCCTH, despite a population of approximately 3,500 prisoners. The Seventh Circuit
has characterized the lack of an on-site psychiatrist as a "serious system
deficiency" contributing to a finding of deliberate indifference to a serious
medical need. Wellman v. Faulkner, 715 F.2d 269,272-73 (7th Cir. 1983).
Indeed, so little mental health care is provided that a systemic evaluation is
difficult. The Bureau's own policy speaks of "an overall effective, integrated
mental health program for the institution.,,46 Nothing of the sort exists for
prisoners confined in the SCU, many of whom require both acute and chronic
psychiatric care.
3. Prisoner 9
Prisoner 9 suffers from severe, debilitating mental illness. Both his
counsel and fellow prisoners paint a sad portrait of his symptoms. He rarely
leaves his cell and, when he does, he frequently dresses in just his underwear. He
showers only when forced to do so by staff. His cell is filthy; he urinates in the
comers and ejaculates on the walls, often without regard as to who may be
watching. His pathology is evident to even the most casual observer; he screams
at the television and will stare at a blank screen, listening to the static. He has
attacked a microwave oven with a broom and complains of implanted devices
controlling his thoughts and actions. In July 2006, for several days in a row,
Prisoner 9 jettisoned urine and feces from his cell, believing that BOP had
rendered his toilet inoperable. Recently, he flooded his cell for no apparent
reason. But more shocking than his behavior is the Bureau's response. Counsel
for Prisoner 9 informs me that, in her client's nearly nine years at USP-TH, he has
received no meaningful mental health treatment.
4. Prisoner 10
Equally disturbing as the BOP's failures to treat mental illness are the
lengths to which the Bureau has gone to affirmatively prevent prisoners from
receiving adequate mental health care. Multiple SCU prisoners report that BOP
staff discontinued their psychotropic medications upon arrival at USP-TH. This is
a dangerous practice.
Program Statement 5310.12 (Psychology Services Manual) § 3.2(A). It should be noted that
this document is dated August 30, 1993 and references American Correctional Association
Standards that have since been superseded.

46

23

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Prisoner 10 has a long history of symptoms of mental illness. In the past, a
regimen of psychotropic medications helped Prisoner 10 keep his symptoms
under control. However, it appears that BOP abruptly discontinued these
medications after he arrived at USP-TH. On February 14, 2007, Prisoner 10 filed
papers dropping his habeas proceedings and volunteering for execution. Among
his reasons for doing so, Prisoner 10 cited BOP's denial of mental health
treatment. Prisoner 10's volunteering for execution should have, at a minimum,
alerted Bureau staff that he needed psychiatric assessment and treatment. Instead,
the Bureau focused its resources on opposing a motion by his counsel seeking
treatment for their client. Prisoner 10 withdrew his motion to be executed but the
court denied the motion for psychiatric treatment, and he continues to suffer
needlessly.
5. Increased Attention Is Needed to the Mental Health Needs of
Condemned Prisoners
As the former warden at USP-TH, I am sure that you have a keen
appreciation for the special mental health issues confronted by prisoners awaiting
execution. These men are locked down in supermax-style cells for most of the
day. Hundreds or thousands of miles separate them from their families and
attorneys. Many may have organic brain disorders, histories of substance abuse
and trauma, and suffer from serious (and often poorly treated) medical conditions.
Some ofthese men arrived with diagnosed mental disorders and had their
treatment plans abruptly interrupted and discontinued. Others may have
developed disorders while incarcerated. And all must cope with the nagging,
chronic stress of awaiting their trip to the death chamber. 47
In 1972, the California Supreme Court noted that "Penologists and
medical experts agree that the process of carrying out a verdict of death is often so
degrading and brutalizing to the human spirit as to constitute psychological
torture.,,48 And psychologists have recognized that " ... the incidence of
47 See American Bar Association, ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (rev. ed. 2003), 31 Hofstra L. Rev. 913,1082 (2003)
("Even if their executions have been safely stayed, however, the mental condition of many
capital clients will deteriorate the longer they remain on death row. This may result in
suicidal tendencies and/or impairments in realistic perception and rational decisionmaking.").
See also Mark E. Olive & Russell Stetler, Using the SupplementalY Guidelinesfor the Mitigation
Function ofDefense Teams in Death Penalty Cases to Change the Picture in Post-Conviction, 36
Hofstra L. Rev. 1067, 1086 (2008) ("conditions of confinement on death row often exacerbate
preexisting disorders or give rise to new ones.")

People v. Anderson, 493 P.2d 880, 894 (Cal. 1972) recognized as superseded by state
constitutional amendment, People v. Hill, 3 Cal.4th 959, 1017 (1992).

48

24

pSYQhological symptoms and mental health problems among death row inmates
calls for comprehensive mental health serVices. Effective treatment of
psychological symptoms and disorders among death row inmates is not only
humane, but likely to facilitate institutional management and reduce disciplinary
misconduct. ,,49
As the Bureau's Clinical Guideline points out, simRle screening methods
have a high sensitivity for detecting depressive disorders. 5 And there are myriad
cost-effective treatment options available to clinicians for depression and other
mental disorders suffered by SCD prisoners. There is no defensible reason why
any prisoner in need of mental health care should go untreated.
AMERICAN CIVIL LIBERTIES
UNION FOUNOATION

III.

Dental Care

Dental care for SCD prisoners is grossly and dangerously deficient. SCD
prisoners wait and wait in considerable pain while their requests for care are
routinely ignored. Care is so poor that some prisoners have chosen to have all of
their teeth extracted rather than suffer any further. 51
1. An Ongoing Lack of Staffing and Resources
In an Inmate Request to Staff dated February 12, 2008, a SCD prisoner
inquired about the waiting time to receive routine dental care. He was told that
there were 281 prisoners ahead ofhim on the routine care waiting list. He was
further told that he could expect to wait a minimum of13 months before being
seen and that only 3 hours ofdentist time per week were set aside for SCD
prisoners. And, most shockingly, only one dentist provided routine care to the
approximately 4,000 inmates at the FCC at the time. The same prisoner asked the
same questions of the warden. A month later, he was told that nothing had
changed since the original response. 52 The same prisoner brought these numbers
to the attention of the Regional Office. In a stunning example of bureaucratic
indifference, he received this response: "Although we respect your concerns, we
have determined the FCC Terre Haute Dental Department operates in accordance
with the BOP's Program Statement 6400.02, Dental Services. Sick call is the

Mark D. Cunningham & Mark P. Vigen, Death Row Inmate Characteristics, Adjustment, &
Confinement: A Critical Review ofthe Literature, 20 Behav. Sci. & L. 191,207 (2002).

49

50

BOP Clinical Practice Guidelines: Management of Major Depressive Disorder (2001) at 9.

51 However, even this "solution" fails to guarantee a dentally adequate outcome. After waiting
over a year to have his remaining teeth pulled, Prisoner 2 received a pair of dentures that do not fit
his mouth. He now is unable to eat with his dentures.

52

Response by Warden Marberry to Inmate Request to Staff Member dated March 11,2008.

25

appropriate avenue to advise staff of symptomatic concerns with your teeth and
gums. The subsequent assessment will guide your course of dental care.,,53
These statistics are startling and suggest that problems with dental care
are endemic to the entire FCC. They should have triggered an urgent response by
the Bureau. Instead, nothing was done. As openly acknowledged by BOP
administrators, the dental department at USP-TH remains understaffed. 54
2. Long Delays and Limited Care

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

The lack of access to routine care is particularly troublesome given the
institution's emergency dental care policy. Prisoners report that, should they
require a filling before their tum on the routine care list, they receive only a
temporary filling, which is subject to crumbling.55 Further, during emergency
care visits, prisoners report that the dentist will treat only one tooth at a time, even
if multiple teeth require attention.
Prisoners further report that generally, when they finally do get to see the
dentist, extraction is the only treatment offered. This restriction, even if
exceptions are occasionally made, is at odds with BOP policy, which authorizes a
.
56
WI·der array 0 f treatment optIOns.
Even simple extractions are handled poorly. After approximately six
weeks of pain, Prisoner 7 finally saw the dentist, who extracted the wrong tooth.
Fifteen minutes later, he was returned to the dentist and the correct tooth was
pulled. Subsequently, he developed an abscess. Three weeks passed before he
was seen for this serious medical condition. Such a three-week delay may
constitute deliberate indifference to a serious medical need. Fields v. Gander,
734 F.2d 1313, 1314 (8th Cir. 1984) (three-week delay before treating painful
dental condition). His abscess returned in January 2008 and, once again, his pleas
for care were ignored even though the pain kept him awake at night. Prisoner 7
continues to have significant dental problems and inadequate treatment. His
"cop-outs" continue to elicit silence from dental staff.

53

Response to Regional Administrative Remedy Appeal No. 4878l6-Rl, dated May 27,2008.

54

Response to Central Office Administrative Remedy Appeal No. 4878l6-A, dated July 17, 2008.

55 This policy is confirmed in the former warden's July 28,2006 response to Prisoner 7's Request
for Administrative Remedy (BP-9) No. 4l8950-Fl.
56

Program Statement P6400.02 (Dental Services) § 8(d).

26

3. Dental Care for Patients with Special Needs

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Dental care for prisoners with diabetes is poor. The Bureau's Clinical
Guideline aptly recognizes the special dental needs of diabetic patients. Diabetics
are subject to "an increase in the incidence and severity of dental caries, gingival
inflammation, periodontal abscesses, and chronic periodontal disease. ,,57 Yet
diabetic Prisoners 1 and 2 continue to receive substandard care that not only
causes them pain and impairment, but also increases their risk of serious health
consequences. Prisoner 2 has had all of his teeth pulled. However, his dentures
do not fit properly and he cannot eat with them in place. Failure to provide
Prisoner 2 with a soft diet or other relief until new dentures are fitted may
constitute an Eighth Amendment violation. Hunt v. Dental Dep 't, 865 F.2d 198,
200 (9th Cir. 1989).
Until a few weeks ago, Prisoner 1 had only six teeth left in his mouth,
making it difficult to eat the few foods he receives that are appropriate for a
diabetic patient. His remaining teeth were loose and painful and he had requested
that the remaining teeth be extracted and that he be fitted with dentures. His
multiple requests and efforts at informal remedies were routinely met with
boilerplate and often contradictory responses. For example, on August 21,2007,
Prisoner 1 wrote to Dr. Cooper, a dentist, complaining of dental pain. In
response, he was told "[f]or dental pain sign up for dental sick call with the
nurse. ,,58 Despite the inappropriateness of this response, Prisoner 1 complied and
submitted a dental sick call request. Sixteen days later, he submitted a second
request. Seventeen days later, he submitted a third request, emphasizing that "I
have severe pain from my teeth when I eat and when I brush... " Finally, fifteen
days after his third request, Prisoner 1 was seen by a hygienist who did nothing to
address Prisoner 1's pain other than to tell him that "ifhe has any pain or
problems to fill out [a] sick call slip."
Prisoner 1 made every effort to follow the instructions of BOP staff. In a
letter to Prisoner 1's counsel, Warden Marberry advised that he must submit a
sick call request ifhe has additional pain issues. 59 Prisoner 1 complied. But, once
again, his efforts were ignored. He submitted three sick call requests over
seventeen days before being seen by the dentist.
It is my understanding that Prisoner 1 has finally had his remaining teeth

pulled in June or July of this year. Accordingly, it is imperative that he receive

57

BOP Clinical Practice Guideline: Management of Diabetes (2008) at 24.

58

Inmate Request to Staff dated August 31,2007.

59

Letter to David C. Hemingway, Esq. from Warden H.J. Marberry, May 15,2008.

27

de_ntures as soon as possible as he has no teeth with which to chew his food.
Prisoner 1 has already filed a BP-9 on this issue. The warden's boilerplate
response glaringly failed to address Prisoner l' s urgent needs: "You are currently
on the list to be evaluated for dentures. If you are in pain caused by your teeth,
submit a sick call request for dental during sick call rounds.,,6o However, as
Prisoner 1 aptly points out, "[j]ust because my name may be on some list for
dentures [] does not address the emergency situation created because of my
immediate need ... ,,61 Failure to provide dentures to a prisoner having difficulty
eating may constitute deliberate indifference to a serious medical need. Wynn v.
Southward, 251 F.3d 588, 593-94 (7th Cir. 2001).
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Dental care at USP-TH is in crisis. The Bureau has allowed months to
pass with no effort to remedy the lack of staff, intolerable waits, and the
excruciating pain endured by many prisoners. Immediate action is necessary.

IV.

Noise

Prisoners continue to report extreme, unbearable noise at all hours of day
and night. Prisoner 10 cited "constant bombardment" with "incessant noise and
pounding" as a reason for dropping his habeas petition and volunteering for
execution. 62 Noise emanates from two sources. First, since the SCU sits atop the
SHU, the constant screaming, banging, and pounding of prisoners in the SHU is
easily audible in the SCU. Second, prisoners report frequent fire alarms. While
some number of fire alarms is to be expected, prisoners report several deafening
fire alarms each week that last between 10 and 90 minutes with the strobe light
lasting even longer. The alarm is deafening and the flashing strobe light causes
significant psychological distress. The alarms are so loud that correctional
officers wear over-the-ear hearing protection, suggesting that the frequency and
volume of the alarms may place prisoners at risk of irreversible hearing loss. One
prisoner reports that he was given yellow ear plugs, but these were insufficient.
As a result of the constant alarms, screaming, and banging, prisoners are sleep
deprived, unable to get a healthy night's sleep, and suffer daytime fatigue.
The American Correctional Association has issued a standard concerning
daytime and nighttime noise levels in housing units. 63 At a very minimum, BOP

60

Response to Request for Administrative Remedy No. 498862-Fl, dated August 11, 2008.

61

Regional Administrative Remedy Appeal No. 498862, dated August 14, 2008.

62

This motion was subsequently withdrawn.

"Noise levels in inmate housing units do not exceed 70 dBA (A Scale) in daytime and 45 dBA
(A Scale) at night." American Correctional Association, Standards for Adult Correctional
Institutions § 4-4150 (4th ed. 2003).
63

28

should ensure compliance with this standard. Seventh Circuit case law holds that
complaints of excessive noise state a claim under the Eighth Amendment.
Antonelli v. Sheahan, 81 F.3d 1422,1433 (7th Cir. 1996) (nightly noise
interrupted and prevented prisoner from sleeping); Lucien v. Peters, No. 95-2778,
1997 WL 58812, at *1-2 (7th Cir. Dec. 17, 1996). Sadly, given the paucity of
medical and mental health care available to prisoners, it is likely that any physical
or psychological harm resulting from the noise will go undiagnosed and/or
untreated. However, as the Seventh Circuit noted, incessant noise "may cause
agony" and "the state is not free to inflict such pains without cause just so long as
it is careful to leave no marks." Williams v. Boles, 841 F.2d 181, 183 (7th Cir.
1988).
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

***
The above examples are not isolated incidents. Rather, they represent a
pattern of deliberate indifference to serious medical needs, including dental and
mental health needs. The Seventh Circuit holds that plaintiffs may demonstrate
deliberate indifference by either showing '''repeated examples of negligent acts
which disclose a pattern of conduct by the prison medical staff" or by "'proving
there are such systemic and gross deficiencies in staffing, facilities, equipment or
procedures that the inmate population is effectively denied access to adequate
medical care.'" Wellman, 715 F.2d at 272 (quoting Ramos v. Lamm, 639 F.2d
559,575 (lOth Cir. 1980)). The Bureau's failure to provide adequate medical
care to SCU prisoners satisfies both tests. BOP has been on notice of this pattern
for some time. Rather than working to resolve these concerns, the Bureau seems
to have chosen a course of willful blindness. The problems with medical, mental
health, and dental care at USP-TH are patent. Yet despite the obviousness of
these deficiencies, BOP continues to ignore "a substantial risk of serious harm
and disregards that risk by failing to take reasonable measures to abate it."
Farmer v. Brennan, 511 U.S. 825,847 (1994).
While all prisoners are entitled to the rights guaranteed by the United
States Constitution, death row prisoners have unique needs, many of which are
outlined in this letter. Proper correctional leadership demands sensitivity to these
special needs and circumstances. Based on my investigation, such leadership is
currently lacking. Indeed, one of the men in the SCU recently related that some
USP-TH and SCU staff members, including high-ranking officials, were
completely unaware of the government's pending efforts to proceed with the
executions of six prisoners. However, it is not the responsibility of SCU staff to
monitor the court dockets of the prisoners in their charge. Rather, ultimate
responsibility for the health and well-being of SCU prisoners lies with those BOP

29

officials empowered with the statutory duty,64 oversight authority, technical
expertise, and leadership ability to effect real, meaningful change. ResponsibIlity
for addressing the concerns raised in this letter should not rest with unit staff or
even the warden; your direct involvement is both requested and required.

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

I suspect that the serious deficiencies in medical, mental health, and dental
care may extend beyond the SeD to other components of the Fec. But the
express purpose of this letter is to yet again alert you to the plight of the federally
death-sentenced prisoners in the SeD. These men will continue to suffer
needlessly until you make substantial, immediate changes to the quantity and
quality of health services provided to seD prisoners. The concerns raised in this
letter are neither minor nor abstract; rather, they speak to fundamental issues of·/!>·
human dignity.
My office - and all other concerned parties - sincerely hope that we can
work together to ensure that the condemned prisoners in your charge receive the
care constitutionally guaranteed to them. We look forward to your response.
Very truly yours,

Gabriel B. Eber

Enclosures

64

18 U.S.c. § 4042(a).

30

 

 

Federal Prison Handbook - Side
PLN Subscribe Now Ad 450x450
Stop Prison Profiteering Campaign Ad 2