The court disposes of summary judgment motions in 15 consolidated cases
concerning medical care provided by Correctional Medical Services at East
Jersey State Prison. The court grants summary judgment against nine of
them (mostly because the prisoners got a reasonable amount of attention, or
because they don't show any harm) and denies it at least in part in the
other six cases in a fact-heavy 48-page opinion.

The court notes that plaintiffs can recover against the corporate medical
provider only upon a showing of corporate policy or custom, then notes
evidence in the form of memos between CMS and DOC expressing concern about
CMS's failure promptly to provide vital medication, the difficulty of
getting appointments with primary physicians, the difficulty of getting
specialist referrals, and the failure adequately to maintain medical
records. The court notes that the surviving plaintiffs (surviving legally,
that is) all complain of these problems, and that a jury could find the
failure of CMS to take affirmative steps to deal with them created a
sufficiently obvious risk as to constitute deliberate indifference. (739)
Highlights of individual cases:

The failure to send an elevated PSA test on three occasions when the
plaintiff was sent to an oncologist, ...

The plaintiff physician complained that she was fired by a private
corporation providing medical care to prisoners because she gave a prisoner
a 7-Up to drink. Prison officials denied her further access to the prison
and the corporation cited that fact in firing her. She sued on the ground
that she had been defamed, could not find comparable employment, and should
have had the opportunity for a name-clearing hearing.

The plaintiff loses because she was not a state employee, since the prison
authorities did not control the performance of her duties. There is no
exploration of whether she acted under color of law by virtue of her
position and the contract with the prison system, because the plaintiff
asserted throughout the case that the issue was whether she was a state
employee. See: Hojnacki v. Klein-Acosta, 285 F.3d 544 (7th Cir. 2002).

Failure to Provide Medical Records Waives Florida's Medical Malpractice
Pre-Suit Requirements


Florida's Fourth District Court of Appeal has held that a Palm Beach
Circuit Court improperly dismissed a prisoner's medical malpractice suit
for failing to comply with pre-suit notice requirements.

While housed at Florida's Glades Correctional Institution (GCI), prisoner
John Bailey received medical treatment in 2002 that he claims was haphazard
and discontinued prematurely. In 2003, Bailey attached a signed consent to
an inmate request to medical, seeking his medical records to comply
with the pre-suit requirements of §766, Florida Statures. The response said
that under confidentiality we are unable to release this [sic]
confidential records to you, if you have your lawyer to request this we
will be happy to comply. Bailey proceeded pro se. A similar subsequent
request was denied.

Bailey also requested to be evaluated by an independent physician to meet
the pre-suit requirements. He was told treatment outside the Florida
Department of Corrections had to be approved by another office. Six
months after filing his notice of intent to sue, Bailey filed suit.

The defendants, which included Wexford Health Sources, moved to dismiss
for failure to comply with pre-suit requirements. The trial court granted
the motion ...

The plaintiff's release from prison moots his request for declaratory and
injunctive relief.

The plaintiff's claim for "emotional and psychological deterioration"
resulting from bad prison conditions is barred by the PLRA mental/emotional
injury provision. Some circuits have held that punitive damages can
nonetheless be recovered. At 622: "However, where the punitive damages
are for mental or emotional injuries, such is precluded by § 1997e(e)."
Nominal damages are not precluded.

The plaintiff's claim against Aramark Food Service and Correctional Medical
Services, Inc., are dismissed because he appears to rely on respondeat
superior, and corporate liability under § 1983 requires a showing of policy
or custom of the corporation.

The plaintiff failed to state what relief he sought from certain
defendants. Rule 8(a), Fed.R.Civ.P., says a complaint should include "a
demand for judgment for the relief the pleader seeks." If the complaint
lacks such a demand, the federal court is "faced with the prospect of
rendering an advisory opinion," which they can't do. (623) (This is crap.
Rule 54(c) says that except for default judgments, "every final judgment
shall grant the relief to which the party in whose favor it is rendered is
entitled, even if the party has not demanded such ...

$40,000 Assessed Against WA DOC For Failure To Release Contract Medical
Provider's Records

Columbia Legal Services (CLS) brought action against the Washington State
Department of Corrections (DOC) in 2003 for not providing public record
documents requested in accordance with Washington's Public Disclosure Act
(PDA), RCW 42.17. The Thurston County Superior ...

Public Right To Judicial Proceedings Outweighs Private Parties'
Confidentiality Agreements

East Coast Media Companies appealed a sealing order by New Jersey Superior
Court's Law Division for private parties' contractual agreements and court
documents relating to an alternative dispute resolution. The sealing order
was vacated with limitations.

Former employee Lawrence Lederman's agreement with Prudential Life
Insurance Company of America, Inc. and law firm Leeds, Morelli and Brown
were sealed because of their confidentiality agreement. The American
Broadcasting Companies, Inc., North Jersey Media Group, Inc.,;and Bloomberg
News L.P. (the media) claimed that the records should be available to the
public as they contain proof of racial discrimination, bribery and fraud.
The court allowed media intervention but ruled the records and proceedings
remain sealed as they were private and the confidentiality provisions were
clear on their face.

On appeal, the Second Division ruled that the records already were public
when the action was filed in court before the sealing orders, and that the
trial court took too narrow a view considering public interest. Further,
the parties' contractual agreements do not outweigh the presumption of
openness that applies to court proceedings and filed documents. The sealing
orders were vacated, subject to limitations, and remanded ...

The plaintiff told the prison dentist that he wanted his remaining teeth
pulled and to be provided with dentures. The dentist said he would try to
avoid dentures and that the plaintiff had many sound teeth that he could
keep with proper care. The dentist and hygienist rendered services,
including fillings and extractions, repeatedly. Another doctor advised him
against dentures twice. After a couple of years of this, and a number of
extractions, they began the process of fitting him for dentures.

The plaintiff had serious dental problems, warranting the extraction of the
majority of his teeth during his incarceration. However, "[t]his is no
more than a dispute about the best course of treatment and such disputes
are not actionable under 42 U.S.C § 1983." See: Sirois v. Prison Health
Services, 233 F.Supp.2d 52 (D.Me. 2002).

By Wil S. Hylton

When David Hannah walked into a small office on the second floor of the
Moberly Correctional Facility in Moberly, Missouri, last fall, carrying
his belly like a hundred-pound sack of sand, the staff knew him well
enough not to worry about what he might break or steal or soil in their
private offices, which were normally not accessible to inmates, so I was
able to close the door behind him and we sat together and talked about
what was happening to his body. He was a pale, fifty-seven-year-old white
male, serving a sentence of life plus three years for rape, and his gray
hair was matted to his head. His face was as worn and gaunt as a much
older man's.

Hannah was angry. "Look at it," he said, glaring at his gut. "Do you
want to see it?"

I didn't want to see it, but I nodded anyway. I had come precisely to
see it, to witness Hannah's disfigurement, the fruit of a long series of
medical miscalculations. It had begun in the 1980s with two kinds of
hepatitis, B and C, a condition that prison doctors had largely ignored
for a decade, then treated ...

Florida's private prison industry corporation, Prison Rehabilitation Industries and a Diversified Enterprises (PRIDE), has sued its spinoff company to recover some of the millions spent to prop up that company. The lawsuit comes after over a year of scrutiny into PRIDE's corporate structure. See: PLN, January 2005, cover.

PRIDE was created in 1981 by the Florida Legislature to operate the state's prison industries, which were losing money. PRIDE is supposed to be a nonprofit, but began setting up for profit corporations, which were operated and staffed by members of PRIDE's board.

One of those entities was Industries Training Corp. (ITC), which handled payroll and other services for PRIDE. The state's lawsuit comes after ITC sold its employment placement service, Labor Line, to a North Carolina company that recently incorporated in Florida.

The lawsuit illuminates the corporate nepotism that existed, charging R. Michael Smith, ITC's chief financial officer, of breaching his fiduciary duty to PRIDE by helping ITC spend PRIDE's money when he was serving as chief financial officer of both companies.

Smith placed himself in direct conflict of interest that prevented him from promoting the best business and financial interests of PRIDE," the lawsuit charges. The new PRIDE board installed ...

by David M. Reutter

"Step on a man's foot once, and a polite apology will do. Do it twice, and a profuse apology is in order. Do it thrice, and you have left the land of apology and entered the arena of self-defense." That saying is the beginning of U.S. ...