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Cripa Newport Ar Investigation Findings 11-25-03

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November 25, 2003

The Honorable Mike Huckabee
Governor of Arkansas
State Capitol
Little Rock, Arkansas 72201
Re: 	 McPherson and Grimes Correctional Units, Newport,
Arkansas
Dear Governor Huckabee:
On May 8, 2002, we notified you of our intent to investigate
conditions at the McPherson and Grimes Correctional Units (the
“Units”) pursuant to the Civil Rights of Institutionalized
Persons Act (“CRIPA”), 42 U.S.C. § 1997. We write to report the
findings of our investigation and to recommend remedial measures
to ensure that the Units meet federal constitutional
requirements.
On July 23-26, August 20-23, and September 25-27, 2002, we
conducted on-site inspections of each Unit with consultants in
the fields of correctional medical and mental health care,
penology, sexual misconduct prevention, and environmental health
and safety. While on-site, we interviewed administrative and
security staff, medical and mental health care providers, and
inmates. We also reviewed a large number of documents, including
policies and procedures, incident reports, grievances, medical
records, and use of force records. We appreciate the full
cooperation we received from state officials throughout our
investigation. We also wish to extend our appreciation to the
staff and administrations of both Units for their professional
conduct and timely response to our document requests.
Having completed our investigation of McPherson and Grimes,
we conclude that certain conditions at these facilities violate
the constitutional rights of the inmates confined there. As
detailed below, we find that: (1) inmates at McPherson and, to a
lesser extent at Grimes, experience deliberate indifference
towards their serious medical needs; (2) inmates at both Units

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receive inadequate protection from physical harm and sexual
misconduct; and (3) inmates at both Units are exposed to
unsanitary and unsafe environmental conditions. These
deficiencies expose inmates to serious harm and have, in some
cases, resulted in actual injury.
I.

BACKGROUND
A.

DESCRIPTION OF THE UNITS

McPherson and Grimes opened in January 1998 as private
prisons built and operated by Wackenhut Corrections Corporation
(“Wackenhut”) on behalf of Arkansas. The State resumed control
in July 2001 after Wackenhut failed to renew its contract.1
McPherson, the State’s only prison for female inmates, was
initially designed to hold approximately 600 women in single and
double occupancy cells. At the time of our inspection, the
inmate census for McPherson was approximately 700. Plans to
expand McPherson to accommodate an additional 200 inmates are on
hold. Grimes is predominantly a medium security prison, and is
designed to house approximately 600 young adult males (ages 16 to
24). The Grimes inmate census during our inspections was 599.
No inmates under 18 years of age were housed at either Unit
during our inspection. Grimes currently is expanding to
accommodate an additional 400 inmates; officials expect
construction to be completed before the end of 2003. We
understand from the administration that most of the additional
inmates will be over the age of 24.
McPherson and Grimes are located in the same complex,
approximately a quarter of a mile apart, and have the same
physical design. Each Unit has two primary housing areas
(Housing A and B) located at opposite ends of the facility.
housing areas contain seven large barracks -- four “open,”
dormitory-style barracks and three “closed” barracks with

The

Wackenhut’s decision to terminate its oversight of the
Units reportedly followed the State’s refusal to pay for
increased operating costs.
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double-bunk cells on two levels. Each Unit has single cells in
its isolation barracks.2 Housing A and B are monitored from
elevated control rooms located over the barracks. In addition to
the general population housing and isolation barracks, both Units
have a six-bed infirmary. McPherson also has a Special Programs
Unit (“SPU”) for inmates with serious mental illness.
B.

LEGAL FRAMEWORK

CRIPA authorizes the Attorney General to investigate and
take appropriate action to enforce the constitutional rights of
inmates. 42 U.S.C. § 1997a. The Eighth Amendment places an
affirmative duty on prison officials to provide humane conditions
of confinement and to ensure that inmates receive adequate food,
clothing, and shelter. Farmer v. Brennan, 511 U.S. 825, 832
(1994). Inmates must also receive access to medical and mental
health care. Ruark v. Drury, 21 F.3d 213, 216 (8th Cir. 1997)
(intentional delay or denials of medical care may constitute
deliberate indifference). Moreover, cost cannot justify a
complete denial of constitutionally-mandated services. Monmouth
Cty. Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326,
337 (3d Cir. 1987) (citing Bounds v. Smith, 430 U.S. 817, 825
(1977)); cf. McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2001)
(failure to provide dental care may constitute sufficiently
serious injury to violate constitution).
The Eighth Amendment likewise forbids the excessive use of
physical force against prisoners, see Hudson v. McMillian, 503
U.S. 1 (1992), and imposes a duty on prison officials “to protect
prisoners from violence at the hands of other prisoners.”
Farmer, 511 U.S. at 833. Similarly, inmates have the right to be
protected from constant threats of violence and sexual assault.
Ware v. Jackson County, 150 F.3d 873, 882 (8th Cir. 1998).
Finally, a prison may, in some circumstances, violate the Fourth
Amendment if it fails to protect a prisoner’s right to reasonable
privacy in an exaggerated response to security concerns. Hill v.
McKinley, 311 F.3d 899, 903-904 (8th Cir. 2001) (citing Franklin
v. Lockhart, 883 F.2d 654, 656 (8th Cir. 1989)).

Single cells are used to house inmates on
administrative and “punitive” segregation status, close custody
classification, and pre-hearing disciplinary status.
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As discussed below, the State frequently acts at odds with
these legal standards and with other generally accepted standards
that are not themselves constitutional violations, but that may
be relevant to determining whether the State has engaged in
unconstitutional conduct.
II.

FINDINGS
A.

MEDICAL CARE

McPherson and Grimes provide medical care through a contract
with Correctional Medical Services ("CMS"), a private
corporation. At McPherson, medical services fall short of
constitutional standards in the following areas: emergent,
chronic and acute care; intake physicals; referrals and consults;
and dental services. As explained below, these deficiencies
primarily result from inadequate staffing, lack of proper
supervision, and the failure to implement consistently the
generally adequate written medical policies and protocols.
Although the medical services at Grimes raise fewer
constitutional issues than the services at McPherson, Grimes
still falls short of constitutional requirements in the areas of
emergent, chronic, and dental care.
1.

Emergent Care

McPherson and Grimes inmates with emergent care needs are at
significant risk of harm because they frequently do not receive
appropriate referrals, medical treatment, or follow-up care.
Consistent with generally accepted practices, nurses may
review and triage sick call requests so long as they refer
inmates to advance-level care providers when necessary. At
McPherson and Grimes, these referrals often are not made. For
example, in July 2002, a Grimes inmate who complained of nausea,
vomiting, and right lower quadrant tenderness was not referred to
a physician even though his symptoms were consistent with
appendicitis. A month earlier, another Grimes inmate who
recently had undergone open heart surgery was given Tylenol and
sent back to his barracks by a nurse after he complained of chest
pains. In light of this inmate’s serious symptoms and recent
medical history, accepted standards of care would require that he
be referred to a physician the same day he visited the infirmary

- 5 ­

with such serious complaints. During the same time frame -- June
through July 2002 -- still another Grimes inmate who complained
of chest pains three times during a two-week period also was not
referred to a doctor. This failure violated the CMS protocol
requiring inmates who are seen more than twice for the same
complaint to be referred to a physician. The same protocol was
ignored in the case of an asthmatic inmate at McPherson who never
saw a doctor even though she reported to the clinic three times
between July 11 and July 20, 2002 for asthma-related breathing
problems.
As detailed below in Section II.A.5, our chart review also
revealed that even when inmates receive an appropriate referral,
they often do not get an appointment with the physician because,
in part, there is inadequate staff oversight and no review system
in place to ensure that referrals are being carried out.
2.

Chronic Care

Chronic care clinics at both McPherson and Grimes fail to
meet the needs of inmates with chronic illnesses such as
diabetes, HIV, asthma, and seizure disorders. Inmates who suffer
from such medical conditions require ongoing, coordinated care
and training to prevent the progression of their illnesses.
Although CMS has a comprehensive chronic care policy that
establishes adequate protocols for testing and monitoring, we
found that the staff at McPherson and Grimes fail to adhere
consistently to these written standards.
For example, neither facility regularly administers a
standard blood test to monitor the status of diabetic inmates.
These inmates also do not receive the testing and treatment
necessary to prevent possible medical complications resulting
from their disease. For instance, although diabetes often causes
retinal disease, which left untreated may result in preventable
vision loss, diabetic inmates are not given annual eye
examinations. Diabetic inmates also do not consistently receive
routine urine tests that are critical to the detection of kidney
disease. Moreover, the medical staff at both facilities often
are unresponsive to changes in diabetic inmates’ medical status.
By way of example, although the blood work of one Grimes inmate
indicated that his disease was worsening, medical staff did not
change his medication or take other steps to address his
deteriorating health status.

- 6 ­

The care of inmates with HIV is also deficient. Indeed,
medical staff at McPherson and Grimes informed us that they are
“uncomfortable” with their level of skill and training to monitor
and treat this disease effectively. At the time of our July
tour, an HIV-positive inmate who was admitted to McPherson in
March 2002 had received no chronic care visits and no tests to
evaluate her immune state. Another HIV-positive inmate admitted
to McPherson in March 2001 had received three chronic care
visits, but, as of July 2002, had yet to receive the blood tests
necessary to monitor her condition. This lack of oversight is
dangerous because inmates may need additional medications to
prevent opportunistic infections -- a major cause of illness and
death in HIV-positive patients. In addition to these issues,
critical treatment decisions are often made for HIV-positive
inmates without appropriate medical guidance. For example, the
facility doctor -- who admitted she lacked the skill necessary to
treat and monitor HIV-positive patients -- terminated a Grimes
inmate’s HIV medication on the basis of a memorandum from the
Regional Medical Director asking physicians to consider stopping
such regimens under certain conditions. When we visited Grimes
four months later, the inmate had an increased viral load and
decreased T-cell count -– both indicators of a weakened immune
system. We found no evidence that the doctor considered
re-starting the medication or referring the inmate to a
specialist. In another recent case, a nurse practitioner
restarted medications for an HIV-positive inmate at McPherson.
Because there are a limited number of drugs available to treat
HIV and because effective treatment often depends on complicated
drug regimens, decisions to stop or start medication should be
handled by specialists.
With regard to asthmatic inmates, we are concerned about a
recent CMS policy change which unduly impedes access to chronic
care. The new policy prohibits medical staff from ordering
inhalers and instead requires inmates who experience shortness of
breath to report to the chronic care clinic each time they
experience an episode. However, many asthmatic inmates told us
that security staff often do not allow them to access the clinic
-– a practice that places inmates at risk and could result in
avoidable risk of fatalities.
Inmates with other chronic illnesses such as seizure
disorder, blood clotting conditions, and hepatitis also receive
inadequate chronic care because they are not provided with
routine tests or appropriate follow-up. For example, in July

- 7 ­

2002, we reviewed the record of a McPherson inmate with seizure
disorder whose anticonvulsant drug level had not been checked
since December 2001, at which time it was too low. Although this
inmate had a seizure on May 29, 2002, she received no follow-up
care, her medication was not changed, and she was not scheduled
for a chronic care visit. Another McPherson inmate takes a blood
clotting medication that requires her blood to be tested at least
once a month to ensure the drug is working effectively. Between
July 2001 and July 2002, this inmate’s blood was checked only
four times. Moreover, her records indicate that two of the four
readings were not in the proper range, indicating a potentially
serious problem. The staff’s failure to monitor this inmate on a
consistent basis places her at risk for blood clot formation and
sudden death.3
Finally, we were advised by inmates and medical staff alike
that neither facility provides treatment for Hepatitis C –- an
illness that left untreated can result in potentially fatal liver
damage. We were told by medical staff that the decision not to
treat this disease was based on fiscal efficacy. Although it is
appropriate for health care providers to seek cost effective
means and alternatives for providing care, cost cannot be the
only consideration. Treatment decisions must also be based upon
thorough medical assessments.
3.

Acute Care

We found that McPherson often fails to provide inmates who
develop acute medical needs with timely, appropriate medical
care. Inmates access acute medical services by completing a sick
call request form and placing it in a locked box inside the
housing units. Each day, nursing staff retrieve and review all
request forms. Consistent with national standards, the policies
of the Arkansas Department of Corrections (“ADC”) and CMS require
that inmates who submit requests be seen at the next sick call
(i.e., within 24 hours). In practice, however, the delay is much
longer.
During our inspection, nursing staff at McPherson readily
admitted that they rarely meet the 24-hour requirement. They

We addressed the failure to monitor this inmate (as
well as other situations presenting immediate risk of harm)
during both our tour and our exit interview.
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- 8 ­

maintained, however, that sick call requests usually are
processed within 72 hours. Upon reviewing medical records and
speaking with inmates, we discovered that virtually no one is
seen within a 72-hour window. Indeed, during our chart review,
we found several examples where inmates waited two to three weeks
to attend sick call. Many inmates also reported submitting
multiple sick call requests before being seen. Based on our
review, it appears that staff do not prioritize sick call
requests consistently and appropriately. Such prioritization is
necessary to ensure that inmates with serious medical needs are
seen more quickly than those with more minor complaints.
Access to acute care is further limited by the time at which
sick call is held -- namely, 11:00 p.m. to 4:00/5:00 a.m. Some
inmates who begin work at 5:00 a.m. simply forego sick call in
order to be awake and alert for their job detail. To be sure,
there is nothing per se unreasonable about conducting sick call
during these hours. However, holding sick call exclusively at
these hours may require inmates to choose between medical
attention and sleep, thus potentially creating an unacceptable
and unnecessary barrier to medical care.
Even if inmates successfully navigate the sick call system,
they risk disciplinary action if medical staff conclude that they
are not sick, or if medically untrained correctional officers
determine that they left work without a valid medical complaint.
Although McPherson has a security interest in preventing
malingering, a neutral third party such as the grievance officer
should be tasked with disciplining inmates who unnecessarily
report to sick call. We spoke with a number of inmates who
received disciplinary reports because their symptoms diminished
between the time they submitted their requests and the time they
ultimately saw a nurse. There is a risk that allowing medical
and correctional staff to write disciplinary reports in instances
in which an inmate's health in fact seriously improved during
this period improperly discourages inmates who may be
legitimately ill from seeking medical services. We emphasize, of
course, that we have no way of determining whether or not this
type of situation has actually occurred, and merely flag the
issue for training purposes.
Finally, neither facility provides sick call request boxes
in its segregation unit. Instead, segregated inmates rely on
correctional staff to convey sick call requests to medical staff.
This practice, which is contrary to generally accepted practices,

- 9 ­

potentially compromises timely access to medical care by allowing
staff with no medical training to serve as gatekeepers for
medical services.
4.

Intake Physicals

Although inmates receive physicals soon after they arrive at
McPherson, these examinations often do not include pap smears for
each new inmate or mammograms, where indicated. The medical
staff at McPherson initially advised us that, consistent with
"generally accepted standards," all incoming inmates receive pap
smears. Our records review, however, demonstrated that virtually
none of the women had initial pap smears. When confronted with
this inconsistency, staff reported they had run out of vaginal
specula a month earlier and had not conducted any pap smears
since. We understand that the staff has begun to clear up the
backlog from the month of our visit. Nonetheless, while the
temporary unavailability of equipment explains the staff’s
failure to conduct pap smears for June 2002, it does not address
the staff’s failure to provide pap smears consistently in the
months preceding our visit.
Unlike pap smears, mammograms are not clinically indicated
for all incoming inmates. However, while the provision of
mammograms for all incoming inmates may not be required as a
matter of constitutional law, generally accepted standards
require that women of a certain age and medical history receive
this test. And our records review identified multiple McPherson
inmates who, by reason of age, should have received mammograms
under these generally accepted standards but did not. It also
verified the reports of many inmates that they are unable to
obtain mammograms, even upon request. The failure to provide
pap smears and mammograms may deprive inmates of the benefits of
early cervical and breast cancer detection and may result in
avoidable illness and death.
Another shortcoming in the intake process is the staff’s
failure to communicate laboratory results to inmates. The
inmates we spoke with were particularly concerned about the lack
of information regarding their HIV tests. The failure to convey
test results and document this communication not only violates
generally accepted standards, but it prevents inmates from
learning about potentially serious medical conditions.
5.

Referrals and Consults

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In addition to the systemic failures noted above, we
discovered many cases where inmates were tested and evaluated
properly, but did not receive appropriate follow-up treatment for
their serious health conditions. For instance, one of the few
McPherson inmates who received a pap smear during her intake
physical tested positive for the presence of abnormal cells.
Although this inmate was recommended for a biopsy in January 2002
to rule out cancer, when we visited the facility in July 2002,
she had received no further evaluation. If this inmate has
cancer, early diagnosis and treatment are critical to her
survival. Another inmate who entered McPherson in April 2002
with a diagnosis of cervical cancer repeatedly requested a pap
smear to evaluate the status of her condition. Despite a file
note from her former doctor recommending additional testing, she
had not received it as of July 2002.4
We also found that inmates with serious medical conditions
often are not referred to a doctor or a hospital in a timely
manner. These lapses occur even though CMS’ own nursing
protocols require, consistent with generally accepted
professional standards, that inmates who report to the infirmary
with the same complaint more than twice are to be seen by a
doctor, and inmates with a history of chest pain complaints get
priority physician referrals. In addition, although the
infirmaries at McPherson and Grimes do not have appropriate
equipment to treat patients with cardiac and pulmonary
instability, a Grimes inmate who complained of severe chest pain
three times in a two-week period was treated by the nurse in the
infirmary, but never was referred to the doctor or taken to a
hospital. Similarly, a McPherson inmate who sought treatment for
chest pains and was found to have elevated blood pressure was
sent back to her dorm by the nurse without the site doctor’s
input or referral. An asthmatic, HIV-positive inmate who placed
a sick call request complaining of chest pains and shortness of
breath was not seen by medical staff for two days. When the
inmate finally was seen, she presented with abnormal vital signs.
The nurse, however, did not immediately notify the doctor.
Twelve hours later, the inmate was sent to the hospital with a
diagnosis of pneumonia. She later was found to have a
potentially fatal opportunistic infection commonly associated

We informed McPherson officials about both of these
inmates during our exit interview.
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with HIV infection. In view of the inmate’s HIV status and her
serious symptoms, she should have received appropriate care much
earlier.
Regarding speciality care services, there is no mechanism at
either Unit to ensure that needed consults are requested and that
consultation reports are reviewed and acted upon by the staff.
For example, as discussed above, HIV-positive inmates are not
referred to an infectious disease specialist. Diabetic inmates
are not routinely referred to an eye specialist. And, inmates
with heart conditions do not receive cardiology evaluations.
Even when specialists are consulted, the facilities do not
consistently follow their recommendations. For example, we
interviewed and reviewed the records of a McPherson inmate who
had an off-site visit with an eye specialist in December 2001.
The doctor recommended that she return for a follow-up visit
because of possible retinal problems related to diabetes. At the
time of our visit, over seven months after the consultation, this
inmate had not returned to the specialist and the medical chart
contained no explanation why the specialist’s recommendation for
a return visit was not followed. Similarly, in February 2002, an
infectious disease specialist recommended that McPherson give an
HIV-positive inmate a pap smear and test her viral load before
further evaluation. As of July 2002, the inmate had not received
either of these tests, nor had she had the follow-up visit.5
6.

Staffing and Adherence to Policies and Procedures

The above-noted deficiencies in emergent care, chronic care,
sick call and intake services are aggravated by inadequate
medical staffing. The Units share one staff physician to meet
the needs of 1,300 inmates (the doctor spends 30 hours a week at
McPherson and ten hours at Grimes). As we learned in interviews
with the medical staff, the physician spends most of her time
attending to sick call complaints at McPherson. In addition to
her clinical responsibilities, the doctor is the medical director

When we asked why these recommendations had not been
followed, staff advised that the facilities do not have enough
staff to track them. Indeed, during our tour of McPherson, we
discovered a stack of recommendations that needed to be filed.
Because the recommendations had not been placed in the inmates’
medical charts, the medical staff could not track and implement
them.
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- 12 ­

for both Units and devotes a significant amount of time to
administrative matters. Consequently, she often cannot perform
important tasks such as providing clinical guidance and oversight
to lower level practitioners. The doctor advised that she rarely
is able to see chronically ill inmates at Grimes, has little time
to review records, and has difficulty seeing sick call patients
who are referred to her. As a result, the care available to
inmates at both Units is compromised. Although the doctor
receives some assistance from a nurse practitioner, nursing staff
at both facilities operate without appropriate physician
oversight and perform functions outside the scope of their
training and licensor. Although the Director of Nursing conducts
chart review at both sites, this practice is an inadequate
substitute for physician review.
7.

Dental Care

Access to basic dental care at both Units does not comply
with CMS standards because it is limited, as a matter of
practice, to extractions. "Generally accepted standards" require
that prisons provide surface restorations, prophylaxis, and
preventative care. Although CMS policies are consistent with
such standards, our review indicated that the policies are not
followed.
B.

MENTAL HEALTH CARE

We believe that mental health services at McPherson are
constitutionally deficient. The facility provides insufficient
access to care and falls short of the "generally accepted
standards" that often are relevant to determining whether the
State has engaged in unconstitutional conduct. As explained
below, these deficiencies result in large part from the lack of
appropriately qualified staff and serious gaps in several of the
mental health policies.
Although Grimes has similar problems with its mental health
care, they are less pronounced. This appears to be because most
male inmates who are seriously mentally ill are not sent to
Grimes. Moreover, if Grimes identifies a seriously mentally ill
inmate, that inmate generally will be transferred to a facility
that is better equipped to provide mental health care.
1.

Policies and Procedures

- 13 ­

In general, with the exceptions noted below, CMS and ADC
have adequate written policies to govern mental health services.
However, staffing shortages and the lack of supervisory oversight
make it difficult for either Unit to implement these policies
consistently. During one of our tours, for example, an inmate in
McPherson’s Special Programs Unit (“SPU”) –- an 11-bed unit that
serves seriously mentally ill inmates -- was placed in the
restraint chair for more than 45 hours without properly
documented justification. The inmate reportedly was restrained
after threatening to “run her head into the wall and kill
herself.” Notwithstanding Policy No. 1136, which requires a
psychiatric consult after an inmate has been restrained for 24
hours, there is no evidence that such a consult occurred in this
case.6 Moreover, the inmate was restrained in the SPU instead of
in the infirmary or another medically appropriate venue.
Finally, although it appears that this inmate was allowed to walk
every two hours, the manufacturer’s instructions warn that the
chair should not be used for more than eight to ten hours, and
directs that any longer use should take place “under direct
medical supervision.” This did not occur.
Two of the existing policies regarding the use of medical
restraints present health and safety risks. Policy No. 1136,
which addresses treatment precautions during crisis management,
allows an inmate to be placed in restraints without a
face-to-face physician exam. A related policy, No. 66.01,
describes the use of medical restraints, but does not give
sufficient guidance on how to provide restrained patients with
appropriate range of motion exercises to minimize the risk of
blood clot formation.
The absence of certain types of policies, and gaps in
others, also present life-threatening risks to inmates. Of
particular concern is the lack of a written policy and procedure
for inmates who take certain psychotropic medications and work in
hot outdoor temperatures. For instance, a number of McPherson
inmates who participate in extended daily field duties (outside

In addition to requiring a consult with a psychiatrist,
Policy No. 1136 mandates that inmates be seen by mental health
staff within 12 hours of being restrained. It is unclear whether
this requirement was satisfied.
6


- 14 ­

grounds maintenance) receive psychotropics.7 Without specific
medical interventions, these inmates are at increased risk of
heat stroke.
2.

Access

The mental health staff does not routinely canvass the
general population units or the segregation units of either
facility to identify evolving mental health concerns. Indeed, at
both Units, inmates’ primary access to mental health services is
self-referral. Because there is little attempt to identify
inmates in need of mental health services who have not
self-identified, a number of McPherson inmates receive little or
no mental health care.8 Further, reliance on inmate
self-referral shifts the burden of requesting mental health
services to inmates and, in so doing, ignores the fact that many
mentally ill inmates are unable to recognize their need for such
services. Although perhaps not unconstitutional, this is
contrary to generally accepted standards. Moreover, our review
of the mental health services request logs indicated that staff
generally take two to four weeks to respond to inmates’ requests
for general mental health services. This delay is too long,
particularly when inmates are experiencing a mental health
crisis. Without adequate access to mental health care, serious
mental health needs may go undiagnosed and mentally ill inmates
who present a risk of harm to themselves and others may be left
untreated.
At Grimes, staff conduct mental health assessments and
psychological testing for segregated inmates in front of the
inmates’ cells. Although, at times, legitimate security concerns
may preclude the use of a confidential environment for mental
health assessment and testing, the lack of privacy and
significant noise level in the segregation unit may inhibit
inmates from providing relevant, candid responses, may restrict
the mental health provider’s visual observations, and may result
in incomplete or inadequate mental health assessments. We are
aware that this environment would not violate the Constitution,

Six percent of the McPherson inmates were receiving
psychotropic medications at the time of our visit; nearly 28
percent of these inmates work outside.
7


8


The exception is the 11-bed SPU discussed below.

- 15 ­

but flag the fact that it is inconsistent with "generally
accepted standards" in the medical community.
3.

Assessment, Diagnosis and Treatment

Appropriate, timely mental health treatment is critical to
minimize decompensation, i.e., deterioration of mental health
status, and regulate the symptoms of mental illness. Our
investigation at McPherson uncovered constitutional violations
throughout the mental health care delivery system -- from
assessment and diagnosis to treatment planning and implementation
of therapeutic and pharmacological interventions.
One of the most significant failures at McPherson is the
under-diagnosing of serious mental illnesses. Without accurate
diagnoses, mentally ill inmates risk inadequate or inappropriate
medication and treatment. Our file review suggests that the
problem of under-diagnosing is exacerbated by the mental health
staff’s tendency to discount both the symptoms and psychiatric
histories described by inmates and the records from their former
mental health providers. For example, prior to her
incarceration, one McPherson inmate took Xanax for her bipolar
disorder. The McPherson psychiatrist, however, concluded that
this inmate suffered exclusively from substance dependence and
discontinued the Xanax prescription. The doctor’s notes indicate
that he discounted the bipolar diagnosis simply because he did
not trust the former provider. He did not use clinical testing
protocols to determine whether the prior diagnosis was accurate.
Whether this practice constitutes deliberate indifference -i.e., a constitutional violation -- or mere negligence, it is
contrary to generally accepted standards. At the time of our
visit in July, the inmate reported that she experiences panic
attacks at least once every three days and depressive episodes
that last up to three weeks. In the case of another McPherson
inmate, the psychiatrist overlooked a family history and prior
diagnosis of bipolar disorder when he reportedly told the inmate
that she did not have bipolar disorder and “was nothing but a
crack head.”
Because the psychiatrist does not consistently conduct
proper assessments and because his diagnoses often appear
arbitrary, we learned in staff interviews that mental health
counselors occasionally decline to refer inmates to him. In
certain cases, these counselors anticipate the futility of a
psychiatric referral because they believe the psychiatrist will

- 16 ­

identify the inmate in question as a malingerer. For example,
one counselor refused to refer an inmate who presented with
complaints of tactile hallucinations and who had twice been
hospitalized for psychiatric problems, because the counselor
believed the psychiatrist would view these symptoms as “thinking
errors” and refuse to see the inmate.
An additional problem is the mental health staff’s failure
to schedule regular appointments for inmates when clinically
indicated. For instance, we interviewed a McPherson inmate
[redacted to protect privacy] with symptoms suggesting a
depressive disorder. Although mental health staff appear to have
been aware of this inmate’s depression for several months, no
care had been provided at the time of our July visit. Instead,
after having the inmate sign a “no harm agreement” in which she
promised not to commit suicide, the mental health staff allowed
the inmate to return to the general population. The only
reference to her mental status was a file note stating that she
should return to see the mental health staff “as needed.”
Because mentally ill inmates often have impaired judgment, they
may not recognize that they need treatment. Indeed, when we
interviewed the suicidal inmate mentioned above, she acknowledged
her symptoms but denied her depressed state.
The mental health staff also fail to monitor adequately
inmates who take psychotropic medications. We were told that ADC
intends to require such inmates to have regular contact with a
mental health worker in addition to medication management contact
with a psychiatrist. If implemented, this policy will be a
significant improvement over existing mental health care.
With regard to medication management, our review of the drug
formulary revealed that it does not contain any SSRI (selective
serotonin reuptake inhibitor) medications, which are used for
anti-anxiety, or any atypical anti-psychotic medications (i.e.,
newer anti-psychotic drugs that often are more expensive than
older generation medications, but have fewer side-effects and
work more quickly). Although ADC’s contract with CMS reportedly
does not have formulary restrictions, we are concerned that, in
practice, such inappropriate restrictions exist.
4.

Special Programs Unit

The stated mission of the 11-bed SPU at McPherson is to
provide specialized mental health treatment and intervention for

- 17 ­

seriously mentally ill inmates. In practice, however, the
inmates in the SPU do not receive meaningful treatment.
The SPU has only one full-time mental health worker –- a
bachelor’s-level social worker who also manages the SPU.
Although the mental health worker is dedicated, he is not
qualified to provide, or capable of providing, all of the
necessary mental health services. For example, the mental health
worker prepares treatment plans without interdisciplinary input
or review by the psychiatrist or psychologist. Without such
collaboration, treatment plans are virtually meaningless and SPU
inmates fail to receive adequate treatment.
For example, an SPU inmate with a history of multiple
suicide attempts, severe personality disorder and post-traumatic
stress disorder attempted suicide shortly before one of our
visits. Testing later revealed that she suffered from bipolar
disorder, major depressive disorder, and schizophrenia. However,
there was no evidence that the inmate’s treatment plan was
modified to address the new diagnoses, and it is unclear whether
she is receiving appropriate treatment for each of her serious
mental health conditions.
The SPU also provides little meaningful therapeutic
activity. The SPU inmates and the correctional staff reported
that inmates generally receive one hour of group therapy every
one to two weeks. Our review of SPU inmate records confirmed the
scarcity of group therapy. Although some individual therapy
sessions also occur, they are insufficient to treat the
conditions at issue. Moreover, following recent incidents and
allegations of sexual misconduct (discussed below), the
confidentiality of individual therapy sessions has been
compromised. Individual counseling sessions are now conducted
with an open office door, and inmates report that because others
can hear their discussions, they are less comfortable sharing
private information. Where consistent with security concerns,
the facility should attempt to provide a confidential environment
for counseling sessions.
5.

Suicide Prevention

The Units fail to provide adequate monitoring and housing
for inmates on suicide precaution. Between January and July
2002, there were five suicide attempts at McPherson and five
attempts at Grimes. Additionally, a McPherson inmate attempted

- 18 ­

to hang herself in May 2002, although McPherson did not classify
this incident as a suicide attempt. In most cases, inmates
identified as suicidal are transferred to the isolation unit and
housed in a designated “suicide cell.” Without adequate mental
health treatment services, however, this cell becomes a
punishment and can exacerbate the underlying issues.
Additionally, the physical attributes of the suicide cells
in both Units present dangers to suicidal inmates. Specifically,
the beds in the cells are not anchored to the floor, the panic
buttons are inoperable, and there are no intercoms or video
surveillance. Moreover, it is difficult for correctional staff
to supervise inmates inside these cells because the cell doors
have only a small window. Accordingly, the only way staff can
directly and constantly supervise suicidal inmates is to stand at
the cell door. Finally, neither Unit maintains a cut-down or 911
kit for quick rescue in the event of a hanging.
6.

Staffing

The absence of sufficiently qualified mental health staff at
McPherson and Grimes contributes to the inadequacy of mental
health care. For instance, at the time of our visit, there were
45 inmates at McPherson receiving psychotropic medications and
approximately 13 at Grimes. At present, the psychiatrist spends
four to five hours a week at McPherson and one to two hours a
week at Grimes. The part-time psychologist divides 16 hours,
three days a week, between both Units. It appears that the
amount of mental health care provided by these professionals is
insufficient to address the needs of McPherson and Grimes
inmates. Although four full-time bachelor-level mental health
counselors provide some additional support, one of these
counselors primarily works with pregnant inmates and the other is
assigned as the coordinator and counselor for the SPU. While we
found these counselors to be dedicated, they are unqualified to
provide diagnostic assessments or mental health therapy. Yet,
because the psychiatrist and part-time psychologist do not have
the time to provide such care, the counselors are left to perform
these types of services.
7.

Oversight

McPherson lacks an oversight system to ensure that mental
health staff provide appropriate services. As a result, staff
often are unaware of the problems described above or simply fail

- 19 ­

to implement appropriate remedies. For example, McPherson fails
to collect and maintain statistical information about the number
of mental health screenings performed each month, and does not
track and monitor screenings that result in referrals for further
mental health evaluation.
C.

SECURITY, SUPERVISION AND PROTECTION FROM HARM

Neither Unit adequately supervises its inmates. The
supervisory failures facilitate the introduction of contraband
and promote violence, placing both inmates and staff at risk of
serious harm.
1.

Supervision

The physical layout of both Units combined with the current
placement of security staff prevent direct supervision of the
housing units, thereby increasing the risk of harm to inmates and
staff. [redacted for safety and security]

- 20 ­


At Grimes, the failure to supervise inmates during work
details presents additional security risks. During one visit, we
discovered a number of inmates hiding behind clothes dryers in
the laundry area with the lights turned off. Although
approximately 15 inmates work in the laundry, there was no
correctional officer supervision in the laundry at that time, and
it took more than 15 minutes for an officer to arrive.
Additionally, Grimes inmates who work with tools have keys to
various tool cabinets and are able to check out tools and
maintain tool inventories without supervision. These practices
place both inmates and staff at risk.
2.

Control of Contraband

Staff and inmates reported that both facilities have a
significant problem with contraband, including shanks
(i.e., homemade knives) and tobacco. Our review of documents
confirmed these reports. If tobacco products are smuggled into
the facility, other more dangerous contraband can be introduced
as well thereby potentially compromising the safety of inmates
and staff. And the concern is obviously even greater with
contraband weapons. At Grimes, for example, staff have recovered
a large number of shanks, mostly from the housing units. During
June 2002, staff confiscated 14 shanks, one ice pick, and one box
cutter. The failure to control such contraband and the lack of
sufficient oversight by security staff allowed a Grimes inmate to
stab another inmate with a shank on April 4, 2002. The assault
occurred in one of the open, dormitory-style barracks. No staff
were in the barracks at the time; staff reported to the scene
after being notified by the control room officer that the
stabbing had taken place.
Many of the shanks we viewed appeared to have been
constructed from and with materials in the area under
construction -- underscoring the need for proper supervision.

- 21 ­

Not only do inmates who work in the construction area have access
to tools and materials that can easily be fashioned into weapons,
but the security measures used to address this risk are
inadequate. [redacted for safety and security]

The documented involvement of staff in the introduction and
trafficking of contraband creates a significant security and
safety risk. Staff who commit such acts become vulnerable to
potential acts of aggression and/or manipulation by inmates, and
innocent staff members may be exposed to illegal transactions
that place them in dangerous or compromising situations. As
noted, tobacco trafficking also can indicate the trafficking of
more serious items such as weapons or illegal or prescription
drugs. Finally, having banned items within the prison creates a
situation ripe for conflict and extortion.
Contributing to the contraband problem is [redacted for
safety and security]

3.

Inmate-on-Inmate Violence

Grimes fails to supervise properly its inmates and control
inmate movement. The result, as the incidents described below
demonstrate, is a serious problem of inmate-on-inmate violence.
Not only do such incidents create risks of harm to inmates, they
also place staff -- who are responsible for intervening in inmate
altercations -- at risk.
A recent fight between inmates illustrates problems caused
by lax supervision. On July 19, 2002, two Grimes inmates on food

- 22 ­

service detail had a fight in the dining area. One of the
inmates sustained a broken jaw during the incident. Although the
incident report does not describe the location of staff at the
time of the fight, it is clear that the inmates were
unsupervised. According to the injured inmate, staff had left
the dining area to store supplies, leaving the inmates unattended
for a significant period of time. An ADC employee informed
us that it took approximately 45 minutes for security staff to
respond to this incident.
Another fight took place on August 22, 2002 in a shower area
at Grimes. Again, one of the inmates sustained a broken jaw. We
heard conflicting reports regarding the whereabouts of vestibule
staff during the incident. One report maintained that
correctional staff were nowhere to be found and became aware of
the incident only after security staff observed visible injuries.
Another report, however, maintained that correctional staff were
present, but ignored warnings that a fight was starting. The
injured inmate stated that he could not obtain staff assistance
because, among other things, the barracks call button was
inoperable.
In addition to the incidents described above, other inmate
violence results from uncontrolled inmate movement. For example,
on April 6, 2002, a Grimes inmate attacked another inmate in a
barracks. The inmate who initiated the attack was not housed in
that barracks and should not have been there.
Similarly, on June 7, 2002, a McPherson inmate attacked
another inmate in the pill call line for housing unit 2.
Although the assault appears to have been stopped quickly by
security staff, the inmate who instigated the violence should not
have been in the line because she was assigned to housing unit 1,
which has a separate pill call.
[redacted for safety and security]

- 23 ­


4.

Classification of Inmates

The classification system at Grimes contributes to the
safety and security deficiencies at the facility. Generally
accepted classification systems separate problematic inmates from
those who cause fewer problems or who are vulnerable to violence
or abuse. Grimes’ failure to do so makes supervision more
difficult and increases the risk of harm to both staff and
inmates.
D.

SEXUAL MISCONDUCT, SUPERVISION AND PRIVACY VIOLATIONS

Under former management, there were numerous sexual
misconduct incidents at the Units.9 The number of allegations
and incidents appears to have decreased since ADC assumed
operational control in July 2001 and instituted policies and
training to address staff/inmate sexual misconduct. Yet despite
the Units’ attempt to respond to sexual misconduct, our records
review and staff and inmate interviews indicate that the
following serious problems continue to exist: (1) lapses in
supervision of staff and inmates; (2) privacy violations; and
(3) substandard investigations. Because of these failings, we
conclude that McPherson and Grimes fail to protect adequately
their inmates from harm. In addition, the privacy violations we
observed and the substandard misconduct investigations we
reviewed create an atmosphere conducive to misconduct and abuse.
During the 13 months following the State’s resumption of
control of the Units (from July 2001 to August 2002), there
were at least 13 reported incidents of sexual misconduct or
abuse. Each occurred in areas that, during the night and early
morning, are poorly monitored and/or isolated. For instance, on
June 13, 2002, a male nursing assistant sexually assaulted a

9


These incidents were confirmed by staff and inmates.

- 24 ­

McPherson inmate who reported for a minor medical procedure. The
assault took place in an unmonitored examination room and lasted
between five and six minutes. After the inmate reported the
incident, the nursing assistant confessed and was terminated. A
few days later, at 12:30 a.m., an officer and inmate were found
in the programs area broom closet. The officer’s pants were
open, and the couple later admitted they intended to engage in
sexual intercourse. The subsequent investigation, which resulted
in the officer’s termination, revealed that the officer and
inmate had been sexually involved for a month. Around the time
the officer and the inmate initiated the relationship, ADC warned
the officer that he “appeared to be spending too much time with
inmates,” and yet no corrective actions were reportedly taken.
Similar problems exist at Grimes. In the Spring of 2002, a
female sergeant was terminated for making phone calls to a former
inmate. According to supervisory staff, the sergeant and the
former inmate had been in a sexual relationship while the inmate
was incarcerated. Another female officer was terminated on May
8, 2002 after she and an inmate were seen in a compromising
position. Although this officer was accused of sexual
misconduct, she ultimately was terminated for lying about a
relationship with another officer.
In addition to these examples, there appear to be additional
cases of sexual misconduct that were never investigated. For
instance, our review of one investigative file referenced a
female officer who was terminated for sexual misconduct. The
file did not indicate whether ADC Internal Affairs or Grimes
staff ever investigated the allegations. We also were told of
two other recent incidents, one of which management verified, for
which we received no paperwork. In addition, uninvestigated
grievances and allegations (discussed below in Section II.D.3)
both heighten the risk of sexual misconduct and suggest that
sexual misconduct and abuse occur more frequently than is
reported.
1.

Security, Oversight, and Supervision

As discussed in Section II.C.3, inmates at McPherson and
Grimes often violate the policies that limit unsupervised inmate
movement. Incident reports and inmate interviews provide further
evidence of unauthorized inmate movement. Not only have multiple
inmates been written up for being in restricted areas, inmates
themselves told us how, during shift changes, they can move

- 25 ­

undetected into isolated areas to have sex with other inmates and
with staff. These events reportedly occur in poorly monitored
locations. Certain areas at both Units appear to be the most
likely places for sexual misconduct to occur. [redacted for
safety and security] According to an inmate and a member of the
staff, the medical area is used for sexual misconduct during
shift change, particularly in the early morning hours. We were
told that sexual misconduct often takes place at night in the
program areas. Other isolated venues we found to be
inconsistently locked and monitored include the maintenance area
and the training/muster room.
2.

Privacy Violations

In some instances, it appears that McPherson may not provide
reasonable privacy for its inmates. The shower curtains in the
barracks are transparent, and inmates report that male officers
gratuitously observe them during their showers. For instance,
the inmates allege that instead of watching the shower area to
assess security issues, male officers stand and watch them
without a security purpose whatsoever throughout the duration of
their showers. We obviously cannot know whether these inmate
accounts are in fact true, but the allegations are troubling. To
be sure, McPherson has a legitimate security interest in
monitoring all areas of the prison, including the inmates’
showers. Indeed, the safety and security of inmates and officers
require such supervision. However, while opposite-sex
surveillance of female inmates is not unconstitutional, such
surveillance must further the goal of prison security. See Timm
v. Gunter, 917 F.2d 1093, 1102 (8th Cir. 2002). There is no
penological interest in prurient observation of naked inmates.
3.

Investigations

Our review of 13 investigative records from July 2001 to
August 2002 reveals that investigations -- whether performed by
ADC Internal Affairs staff or by staff who work at the Units
-- often are ineffective and unprofessional. Specifically, we
observed a consistent over-reliance on the use of leading
questions, a failure to ask critical follow-up questions, and
missed lines of questioning about significant information. Any
one of these shortcomings could compromise investigations. In
one recent sexual misconduct investigation, the investigator
provided a detailed account of the allegation and stated his
opinion that the officer’s actions did not amount to misconduct

- 26 ­

before taking the officer’s statement. The officer then asserted
a defense based on information provided by the investigator. In
this same investigation, the investigator responded to an
inmate’s formal complaint about improper behavior by commenting
that when male officers see so many women they think “they are
there for stud service only.” In another investigation, the
investigator made several inappropriate statements while
questioning a witness about the officer’s involvement with the
inmate in question. Among other things, the investigator opined
that the officer did not “look like he would have probably dealt
with a black girl.”
Investigators also occasionally appear to fail to
investigate misconduct discovered during unrelated
investigations. For instance, while investigating an alleged
relationship between two officers, an internal affairs
investigator uncovered allegations of unrelated sexual misconduct
by an officer at McPherson. The allegations, contained in 15
grievance reports, included: (1) privacy rights violations; (2)
male inmates being left alone with female inmates; (3) the
practice of officers, who had no formal role whatsoever in intake
or adjacent areas, “watching” strip searches in intake; and (4)
retaliation towards inmates who report inappropriate conduct. No
investigation was conducted of these allegations.10
4.

Policies

ADC’s sexual misconduct policies are generally sufficient.
However, certain policies fail to meet "generally accepted
standards." For instance, while ADC policies appropriately
prohibit sexual contact between inmates and ADC employees, they
fail to prohibit sexual misconduct by all persons who have or
might have contact with inmates (e.g., volunteers, contractors or
agents). Other policies obstruct the process of reporting sexual
misconduct. For example, ADC policy directs inmates to report

Although the officer eventually was terminated for an
unrelated sexual misconduct incident, the 15 grievances were
ignored after an assistant warden told the investigator that “the
women were angry with the officer because he had been responsible
for tobacco and drug busts.” Given the number of complaints
filed against this officer over an extended period, the assistant
warden’s opinion should not have prevented an objective
investigation.
10


- 27 ­

sexual misconduct through the grievance process. This reporting
mechanism is improper because grievances are not confidential.
Additionally, implementation of sexual misconduct policies is
inconsistent. For instance, although several polices require
that all sexual misconduct investigations be completed and, in
certain cases, forwarded to the state police, some investigations
we reviewed ended prematurely when an accused officer resigned or
was terminated. For example, an investigation into a female
sergeant’s alleged sexual relationship with a Grimes inmate was
closed when the sergeant resigned for an unrelated reason. The
investigation into alleged sexual misconduct between another
female officer and a male inmate ended after the officer was
terminated for lying about an unrelated matter.
E.

LIFE SAFETY AND SANITATION

The environmental health and safety conditions at McPherson
and Grimes fail to meet "generally accepted standards" in the
areas of fire safety and prevention; food service; plumbing; and
general sanitation and safety. We are aware that some of these
failures to comply with generally accepted standards may not rise
to a constitutional deficiency, and to the extent they do not, we
merely flag those issues for training purposes.
1.

Fire Safety and Prevention

In the event of a fire or other emergency, the evacuation of
inmates depends, in part, on doors that must be manually unlocked
and opened. Neither facility maintains emergency keys in a
readily-accessible location, and the identification of emergency
keys is a cumbersome process. At both McPherson and Grimes,
officers must use four separate rings of emergency keys (each
with numerous keys) to access all areas of the facility.11
Finding the correct key is especially difficult at McPherson
because most keys are not color-coded or notched to permit
identification in the dark or in a smoke-filled room. Moreover,
the back-up sets of emergency keys at both facilities do not
match the primary sets. In addition to these shortcomings, at
the time of our tour, eight of the 22 emergency doors at Grimes

Although we recognize the security interest in
maintaining keys on different rings, both facilities must provide
for prompt and quick evacuation in the event of a fire or other
emergency.
11


- 28 ­

would not open. Two of these doors appeared to have been
sabotaged by inmates who jammed the locking mechanisms; the
remainder had electrical, mechanical, or maintenance problems.
The deficiencies in emergency key and door operations present
safety and security risks for both inmates and staff.
Both McPherson and Grimes use standpipes to provide
high-pressure water to fight fires. During our tour, we observed
that fire hoses were missing from the standpipes at McPherson and
that the wheels used to turn on the water were missing from the
standpipes at both facilities. Hoses should be available and
standpipe wheels should be in place at all times. Valuable time
would be wasted if these items had to be located, retrieved, and
mounted before water was available to contain and fight a fire.
During an inspection that preceded our visit by more than five
months, the local fire marshal cited both McPherson and Grimes
for missing standpipe wheels and required corrective action.
2.

Food Service

The food service programs at McPherson and Grimes raise a
number of health and safety issues.
a.

McPherson

Many aspects of the food service program at McPherson
present unacceptably high risks of food contamination, food-borne
illness, and injury to inmates working in the food service area.
Throughout our inspection, it was evident that inmate
workers receive no food safety training. Dishes and food trays
are not properly cleaned or sanitized because the water in the
dishwashing machines does not reach the temperature necessary to
achieve sterilization. Further, pots and pans are cleaned
improperly as it appears from our observations and inmate reports
that a sanitizing agent is never used in the sink. Compounding
these health hazards is the fact that food trays are not
consistently air-dried, and the fact that McPherson reuses
single-service plastic utensils that cannot be cleaned adequately
after the first use.
McPherson has no procedure for feeding inmates when the
kitchen cannot operate safely. For instance, during one of our
visits, there was no hot water in the kitchen. Instead of taking
appropriate measures, the kitchen continued to operate as usual.

- 29 ­

Several weeks before we arrived, the kitchen experienced a sewage
backup. Although the backup reportedly took several days to fix,
the kitchen operated normally throughout that time. Both the
lack of hot water and the sewage backup had the potential to
cause serious life-threatening illnesses to staff and inmates.
Contributing to inadequate sanitation is the lack of
adequate hand washing facilities. At the time of our tour, one
of three hand washing sinks in the kitchen area was missing and
one had an inoperable hot water handle. Moreover, trash cans
were not provided at any of the hand washing locations. These
deficiencies discourage proper hygiene practices and render
inmates and staff subject to disease.
At the time of inspection, the walk-in coolers at McPherson
were dirty. One contained run-off from a clogged floor drain,
another was filled with dirt and debris, and another contained
pools of blood from thawed meat. The walk-in freezer also was
dirty and had significant ice build-up. Finally, the gas fryer
was improperly wired. To light it, workers had to get down on a
wet floor and wiggle the wires.
b.

Grimes

The Grimes kitchen was under construction during our visits.
All meals served at Grimes were prepared at McPherson and
transported to Grimes. Nonetheless, we found Grimes to have
serious problems with food handling practices and sanitation.
At the time of our first visit, the food transportation
truck was undergoing renovation and meals were being transported
in a van. The van was fly infested, had food spilled on its
floor and sides, and emitted a stench so strong that some staff
refused to get near it. The van was replaced by the regular
truck the day before our second visit. Although this replacement
vehicle was suitable for food delivery purposes, the containers
used to transport the food were dirty and had ill-fitting lids.
Food safety training at Grimes also is inadequate. During
our inspection, cold food and beverages were not refrigerated or
placed in ice pans once they reached the gym, increasing the risk
of food-borne illnesses. For instance, although cold foods
should be served at no more than 40 degrees, the milk we tested
registered 63 degrees.

- 30 ­

3.

Plumbing

[redacted for safety and security]

4.

General Sanitation and Safety

Several of the housing units at McPherson have too few
sinks, showers and toilets to meet the needs of the inmates.
Moreover, we observed inoperable showers and toilets; showers
with mold, mildew and peeling paint; and missing shower nozzles
in the segregation unit. At Grimes, we observed inoperable
showers and toilets, clogged drains, and plumbing leaks. In
addition, several mop sinks had no backflow prevention device to
prevent possible contamination of the potable water system.

III. RECOMMENDED REMEDIAL MEASURES
In order to address the constitutional deficiencies
identified above and protect the constitutional rights of
inmates, ADC should implement, at a minimum, the following
measures at both Units:
A.

MEDICAL CARE

1. Provide pap smears to each incoming inmate and annually
thereafter, and provide mammograms as clinically indicated.
Inform inmates of these and all other test results.
2. Increase on-site physician coverage to ensure adequate
supervision of nursing staff and adequate primary and chronic
care.
3. Provide sufficient staffing to ensure that inmates who make
sick call requests are seen in a timely manner.
4. Develop and implement a quality improvement system that
monitors the quality of medical care services and access to such
care.

- 31 ­

5. Implement a system to ensure that the existing chronic care
program and protocols are implemented consistently. Allow
asthmatic inmates to access their inhalers, and educate security
staff on the need for such inmates to receive breathing
treatments. Develop and implement policies and procedures
regarding treatment of Hepatitis C.
6. Develop and implement a policy to discipline inmates who
abuse the sick call system.
7. Ensure that inmates with special medical needs are promptly
scheduled for and transported to outside care appointments.
Ensure that the findings and recommendations of outside care
providers are tracked and documented in inmates’ medical charts,
and follow outside treatment recommendations when appropriate.
8. Enforce existing dental care policy to provide full array of
dental services, including surface restorations, prophylaxis, and
preventative dental care.
B.

MENTAL HEALTH CARE

1. Implement a policy that requires mental health staff to make
regular rounds in the segregation units. Modify the
comprehensive mental health evaluation to ensure that mental
health practitioners provide accurate diagnoses and timely
implement treatment plans.
2. Develop and implement policies, procedures and practices to
ensure that staff triage and respond to mental health requests in
a timely manner, and that they provide adequate ongoing mental
health care. Provide, where consistent with legitimate security
concerns, an appropriate confidential environment for
psychological testing and counseling.
3. Ensure adequate on-site psychiatrist supervision of mental
health staff and sufficient staff to provide appropriate mental
health care.
4. Improve monitoring and treatment of inmates who are seriously
mentally ill through regularly scheduled visits with mental
health professionals. Develop and implement a policy requiring
inmates who take psychotropic medications to have regular contact
with mental health staff.

- 32 ­

5. Revise the drug formulary to include at least one SSRI or
atypical anti-psychotic medication. Alternatively, revise, if
necessary, the CMS contract to specify that practitioners may
request non-formulary medications.
6. Remove suicide hazards from all suicide precaution cells,
provide appropriate housing for suicidal inmates, and enhance
existing policies, procedures and practices to ensure proper
supervision of suicidal inmates and the availability of cut-down
tools.
7. Conduct training for security and SPU staff on how to
understand symptoms of mental illness and respond appropriately.
8. Develop and implement policies, procedures, and practices to
ensure: (1) that a mental health caseload roster is developed
and regularly updated to reflect intakes and discharges; and
(2) that the provision of mental health services is tracked
through an effective management information system.
9. Develop and implement a quality improvement system that
monitors the quality of mental health services and access to such
care.
10. Ensure appropriate use of the restraint chair by restricting
its use to appropriate circumstances.
C.

SECURITY, SUPERVISION AND PROTECTION FROM HARM

1. Provide adequate correctional officer staffing and
supervision to ensure inmate safety. Ensure that inmate work
areas are supervised whenever inmates are present.
2.

[redacted for safety and security]

3. Install security cameras in the intake, kitchen, laundry,
muster room, program, and mess areas.
4. Implement an objective classification system at Grimes that
separates inmates in housing units by classification levels.
5. Develop and implement a policy for effective tool control.
Establish a procedure to ensure that inmates do not possess or
have access to contraband.

- 33 ­

D.

SEXUAL MISCONDUCT, SUPERVISION AND PRIVACY VIOLATIONS

1. Review and revise selection criteria and training for
investigators. The training should provide investigative
templates to assist in gathering evidence, conducting witness
interviews, and preparing investigative reports.
2. Review and revise the overall investigative process to ensure
that administrative and criminal investigations are handled
appropriately. Ensure that sexual misconduct investigations do
not terminate when a staff member is fired or resigns. Ensure
that if during the course of an investigation, the investigator
discovers evidence of other misconduct, the investigator also
should investigate the secondary misconduct to its logical
conclusion.
3. Ensure that established protocols for reporting and
investigating sexual misconduct allegations are followed
consistently. Establish policy for confidential reporting of
sexual misconduct.
4. Regularly review grievances for allegations of sexual
misconduct or harassment, and conduct full-scale investigations
where appropriate.
5. Vigorously restrict unsupervised inmate movement and ensure
that isolated areas are adequately staffed, monitored and, when
not in use, secured and locked.
6. Where consistent with legitimate security concerns, develop
and implement policies and procedures to provide for privacy in
inmate showers.
E.

LIFE SAFETY AND SANITATION

1. Develop and implement a key procedure that permits
identification of cell block keys in emergency situations.
2.

Develop and implement emergency door inspections.

3. Permanently mount standpipe control wheels and provide and
maintain fire hoses for use in both facilities.
4.

Provide training for kitchen workers in the areas of food

- 34 ­

safety and food handling to reduce the risk of food contamination
and food-borne illness.
5. Ensure that dishes and utensils, food preparation and storage
areas, and vehicles and containers used to transport food are
properly cleaned and sanitized. Ensure that foods are served and
maintained at proper temperatures.
6. [redacted for safety and security] Monitor ambient air
temperatures to ensure that housing area temperatures are
appropriate for the particular population.
7. Equip all threaded hose bibs with approved backflow
prevention devices.
* * * * * * * * * * * * * *
We understand that officials recognize many of the problems
discussed in this letter. In anticipation of continuing
cooperation toward a shared goal of achieving compliance with
constitutional requirements, we will forward our consultants’
reports under separate cover. Although the reports are the
consultants’ work and do not necessarily reflect the official
conclusions of the Department of Justice, the observations,
analyses and recommendations provide further elaboration of the
issues discussed above, and offer practical assistance in
addressing them.

- 35 ­

In the unexpected event that the parties are unable to reach
a resolution regarding our concerns, we are obligated to advise
you that 49 days after receipt of this letter, the Attorney
General may institute a lawsuit pursuant to CRIPA to correct the
noted deficiencies. 42 U.S.C. § 1997b(a)(1). Accordingly, we
will soon contact state officials to discuss in more detail the
measures that must be taken to address the deficiencies
identified herein.
Sincerely,
/s/ R. Alexander Acosta

R. Alexander Acosta
Assistant Attorney General
cc:	 Mike Beebe, Esq.
Attorney General
State of Arkansas
Robert DeGostin, Esq.

General Counsel

Arkansas Department of Corrections

Larry B. Norris

Director

Arkansas Department of Correction

H.E. (Bud) Cummins, III, Esq.
United States Attorney

Eastern District of Arkansas

 

 

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