May v. Segovia et al, No. 1:2015cv00405 - Document 41 (D. Colo. 2016)
Court Description: OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 1/19/16. Plaintiff's Motion for Summary Judgment 14 is DENIED; Defendants' Motion to Dismiss 23 is DENIED AS MOOT; Plaintiff's Motion for Leave of Court to File a First Amended Complaint 31 is GRANTED. The Clerk of Court is DIRECTED to FILE the Second Amended Complaint as attached and serve a copy on Juan Segovia; Defendants' Motion to Dismiss 32 is DENIED AS MOOT;Plaintiff's Motion for a Hearing Regarding Sanctions for the Bureau of Prisons Retaliatory Action 35 is DENIED; and a Status Conference is set for 3/22/2016 10:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang.To the extent Plaintiff wishes to participate by telephone, he is directed to file a Motion for Leave to Appear by Telephone. (Attachments: # 1 Proposed Document- Second Amended Complaint)(bsimm, )
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May v. Segovia et al -- .... ·- ~ ----~-_..., · - - · --!'.. -.r•-·J,.• ._._ _ "!'" _ _ _ _ _ _ _ _ _ .,. > - .. - -... - - • -· ----- -· -· - - ... - • - - - ____ ·.:. .. - .......... _. __ . Doc. 41 Att. 1 ~-~-·-- . ' .... . ·-. ·- .-.. _.,. ' --------·-----~--.----. ..._~- ___,.......,., --- _.. ., ,,._ --------' -· .. IN THE UNITED STATES DISTRIC.T COURT OF COLORADO ~-.----"'II. ·-·- ,_ v .r, Case no.: 15-cv-00405-NYW RECEIVED Billy F. May, Plaintiff UHITEO STATES DISTRICT COORT DENVER, COLORADO v. JUL -·2 2015 Juan Segovia Frankie Cordov~ JEFfkcY P. COLWELL · SECOND CLERK ., FIRST AMENDED COMPLP\INT~ Now comes Plaintiff Billy F. May and in support of his Complaint states as follows: 1. Plaintiff Billy F: May is a currently incarcerated at the Federal Prison Camp-(FPC) in Florence, Colorado since October 2013. 2. Defendant Juan Segovia is the former Camp Administrator at FPC Florence: . 3. Defendant Frankie Cordova is a Nurse Practitioner assigned by the U.S. Public Health Services to the FPC. Both Defendants are charged with responsibility of providing competent and timely m.edical care to the inmates incarcerated at the FPC. · I . 4. The Court has jurisdiction over the parties and subject matter of this case pursuant to 28 U.S.C. 2241; th~ Fifth and Eighth Amen_dments to the United States Constitution; and the U.S. Supreme Court's deci~ions in Harper v. Washington, 494 U.S. 21 O (1985); Hewitt v. Helms, 459 U.S. 460 (1983)1 and, Estelle v. Gamble, 429 U.S. 97, 50 L.Ed. 251, 97 S. Ct. 285 (1976). . . ( 5. Venue is proper in the District of Colorado because the wrongful acts of the Defendants were committed in the District of Colorado at the Florence Prison Camp. · · · ,. ·' . 6. There are approximately 540 inmates at the FPC, over 220 inmates have suffered from a serious infectious and contagious skin disease, to one degree or another, since July, 2014. Irrespective of this medical situation the BOP medical staff has failed to examine the entirety of the FPC inmate population for scabies, much less conduct the definitive skin test required by BOP protocol to confirm a scabies diagnosis, on all but a handful of FPC inmates. • · · . . . 7. From on or about July 15, 2014, the BOP' admitted, after mo,nths of denial, scabies had affected as many as 50% of the inmates incarcerated at the FPC. On December 2, 2014 the BOP finally provided oral medication, .lvermectin to the entire inmate population but did not lockdown the· camp. It should be noted that lvermectin is not a FDA approved treatment for scabies. Again, it is significant fo point out that the BOP tr~ated the total inmate population for scabies without examining each inmate individually or testing more ·than a few of the FPC inmates afflicted with the condition. · ' . . 9. On or about December 30, 2014, approximately 30 inmates reported to the Health Services United (HSU) complaining of a skin ailment. The BOP was unable to diagnose the inmate's medical condition because most of the HSU medical staff were on leave for C.hristmas and New Year holidays and only emergency staff from the ADX .was available to access the medical situation. · · . . 10. An outbreak of scabies infection in inmates is not new to the BOP. In May 2011, the BOP promulgated its policy titled "Federal Bureau of Prisons Lice and Scabies Protocol Clinical Practice." The BOP is required by fed~ral law to follow its own published policies and guidelines. (See Wolf v. McDonnell, 418 F.2d 539. 34 S. Ct. 2963, 4.1 L. Ed. 395 (1974)1 Roaqway v. United States, 414 F.2d 803 (D.C. Cir 1975). Based upon the verified facts set forth_ in the Plain~iffs Class Action Complaint and· AffidavitS of Plaintiffs the BOP did not followed its own policy. ·· .. Dockets.Justia.com .,,.-. ·-- ···- -.... < - ------ -- ·- . ; ... .: ....:...__' - -~--------- ----· ... ' , . .... L _____ _ . . ' 11. The BOP's Lice and Scabies Protocol Clinical Practice states that: "Inmates with suspected or diagnosed Scabies should be housed in a single-cell room and should be ·restricted from all work assignments- and visitation for 24 hours after treatment." . ' Under the BOP policy there is no requirement to place all inmates in 24 hour lo'ckdown whether or not the inmate has · diagnosed with scabies or is suspec.ted to have scabies_. · •v 12. On January 2, 2015, with the BOP officials posted signs informing inmate,s that the camp.was in "Isolation" due to to the scabies problem. However, the BOP, did not follow its Protocol and Clinical Proceaure requJring that: "Inmates with suspected or diagnosed scabies should be housed in single-cell rooms ... and restricted from all work assignments for 24·hours after treatment." Instead, the.BOP indefinitely cancelled all visitation for FPC inmates and imposed a 24 hour lockdown. Contrarito. BOP policy many inmates were ordered to contiriue working at their jobs preparing food for BOP personnel and the prison inmates. The vast majority of inmates were placed on 24 hour lockdown. 13. Lockd~wn at the FP.C is a BOP method used to impose group punishment of all inmates. Lo.ckdown is an ~xtreme method • · because it punishes all 540 inmates for even though only a few inmates may have been in violation of BOP rules. Lockdown is usually only imposed upon the entire group of inmates for less than eight hours: The BOP policy is only to use lockdown briefly , ·to resolve order after a disruption involving a physical alteration ~etween inmates or involving a correctional officer. There is no legitimate penological reason such as safety, security or medical necessity for the 24 hour lockdown of all 540 inmates at the FPC. The Eighth Amendment prohibits the BOP from punishing inmates for a physical condition as district from wrongful acts or rule violations. Wolf v. McDonnell, 418 U.S. 539 (1974); Robinson v. California, 370 U.S. 660 (1960); Despears v. Milwaukee C~unty, 63 F.3d 635 (7th Cir. 1995). , , I ' 14. There is nothing in any of the BOP policies or even the BOP historical practices that authorizes or justifies a total lockdown of all inmates because a few inmates, despite the BOP's erratic medical treatment, are continuing to suffer from an infectious · and contagious skin disease. In fact, a lockdown increases the opportunity for cross-contamination between those infected and those free of the communicable disease afflicting the FPC inmates. · 15. Any. punishment, such as 24 hour indefinite lockdown, that is not necessary to maintain order is cruel and unusual and prohibited by the Eighth Amendment. Millhouse v. Carlson, 652 F.2d 371 (3rd Cir. 1981); Dearman v. Woods, 429 F.2d 1288 (10th Cir. 1970). The Court must grant relief to the entire group of prisoners where the punishment is disproportionate to the infraction committed by the prisoner. This is especially true where unsanitary conditions and the BOP's failure to treat scabies .· for the last six months, in accordance with its own published protocol, 'is the proximate cause of the lockdown. The 24 hour lockdown is "punishment.even though there have been no inmate infractions, only inmates with scabies infection." Jordan v. Fitzharris, 257 F. Supp 674 (N.D. Cal 1966); Wrightv. McMann, 321 F. Supp 127 (N.D.N.Y. 1970)1 Holt v. Sarver, 309 F. Supp 364 (E.D. Ar~ 1970), affd, 442 ~.2d,_304 _(8~h Ci~. 1971). . . 16. The BOP lockdown violated well established case law that requires inmates receive proper meals and allowed at least one hour per day to leave their cell, cubicle, room or other quarters. More importantly, there was no' medical or disciplinary reason · for the lockdown. The BOP is required, by its own policy, to isolate inmates with scabies not lock them down. In fact, a · lockdown which forces all inmates to remain confined to their overcrowded living quarters with other infected inmates violates BOP policy. Furthermore, a 24 hour lockdown has the potential to increase the spread of infectious and contagious disease instead of reducing the amount of sickness and disease in the inmate population. · · . \ . , .. ' . ' 17. The BOP further violated its own policies because during the first three of the 24 hour lockdowns it provided no medical treatment or medication to all inmates. Inmates who are required to work at the ADX during the lockdown were the only inmates to receive treatment or medication besides those inmates placed in a single cell isolation on December 31, 2014. The reason for the discriminatory practice is obvious, the BOP needed healthy inmates to provide labor necessary to support the food service, sanitation and laundry functio11s at the ADX, including feeding the BOP personnel. The equal protection clause prohibits the BOP from treating one group of prisoners, the ADX workers differently than prisoners who do not have scabies but who are nevertheless lockdown. Wolf v. McDonnell, 418 U.S. 539 (1994). The BOP cannot legally punish all inmates because some continue to be infected with scabies. Lockdown can only be used as disciplinary action in pLinish.ing rules violations. · .Anderson v. Romero, 72 F.3d 518 (7th Cir~ 1995). · . . 18. Plaintiff May reported tq the FPC with a long history of documented medical issues. Due to the fact the Plaintiff was highly allergic and previously had gone into anaphylc;ixis shock, he brought to the FPC medical records and prescribed medications. . . . . . ' . ' 19. Plaintiff was se~n. but not examined, by Defend~nt Cordova shortly after arriving at the FPC. All of the Plaintiffs' medical records and his prescribed m·edications were taken from him upon his arrival at the camp. Defendant Cordova advised Plaintiff he would not be allowed access to his records or use any of his prescription medications. ' ( 20. On or about December 2, 2014, Defendants required every inmate to take a prescription medication, lvermectin for purposes of treating an infectious and contagious skin condition which had affected over 200 inmates incarcerated at the FPC . 'lvermectin is not·an FDA approved treatment for scabies. 1 21. Plaintiff obtained information about the medication. Based upon the published warnings for the medicati~n Plaintiff believed that there was a high probability that he would have an adverse reaction to the medication. The Plaintiff had not been diagnosed by any medical doctor or medical provider with an infectious skin disease. Plaintiff initially refused to take the medication but was threatened with "other action" by Camp Administrator Segovia and relented. Subsequently, Plaintiff experienced a allergic reaction and was administered an injection of DiphenhydrAMINE to treat the apparent allergic reaction caused by the lvermectin. · . . . . : . .., 22. On or about December 2, 2014, the BOP again administered to the entire camp population lvermectin as continuing treatment for the scabies outbreak. In this instance, based on the previous reaction to the lvermectin, the Plaintiff refused to take the medication. The BOP medical staff, while admonishing the Plaintiff that he was in violation of their prescribed treatment, did not force the Plaintiff to take the medication ag<-!inst his will and did not take any punitive action against him. · '! . . . > > 23. During the illegal lockdown of the FPC inmate population on or about January 8,' 2015, the Defendants again required every prisoner to take lvermectin as the prescribed. treatment for the infectious and contagipus skin disease scabies. Plaintiff again refused to take the lvermectin based on his previous reaction to the medication and the fact that he had not been individually examined, tested or diagnosed by any medical provider for scabies. Upon his refusal Plaintiff was physically removed from the · FPC and placed in the Special Housing Unit (SHU) or the "Hole". The SHU is used by the BOP for disciplinary purposes. Inmates are typically placed in the "SHU" after being caught with alcohol, marijuana, cocaine or other contraband that is not allowed at the FPC. The.SHU is the equivalent of solitary confinement on a 24 hour, seven days a week basis, with no . privileges permitted. Inmates refer to the SHU as being placed in the "Hole". a 24.)Former Camp Administrator Segovia stated in his Declaration that: "On or about J~nuary 8, 2015, medical clinic was conducted in the FPC Sur;nmit Un!t and a second round of scabies medication was administered to the inmate population to prevent further contamination." Segovia's Declaration is false in a number of aspects. First, this was the third time May was ordered to take the medication lvermectin. It was not the "second round" of forced scabies medication that occurred on December 2, 2014. Second, there was no medical clinic conducted in the FPC Summit unit. Inmates were required to strip down to their shorts to be viewed by a group consisting of Segovia and other unknown BOP personal who walked by and looked for what appeared to be physical signs of scabies. The inmates were then ·ordered to line up outside and orally take the lvermectin pills in front of other BOP personnel to verify that they were actually taking the medication.. To describe this p~ocess as a clinic. is a complete sham and a gross misrepresentation to the Court. · 25.)D~spite the fact whether or not a "clinic was conducted" it is undisputed fact that any 'inmate who refused to take the lvermectin on January 8, 2015 was handcuffed and taken to the "Hole". Segovia states in his Declaration: "During this clinic Plaintiff refused to take the medication lnvermectin (sic} in the presence of medical staff; therefore I made the decision to place him in the Special Housing Unit ("SHU"} on administrative detention status." To avoid reinfection, the treatment of cases and contacts must be carefully coordinated so that all inmates arfil treated within the same period." This is the third part of Segovia's statement that is false. May did not have scabies. He was not going to re-infect anyone. BOP has a written policy statement requiring that any inmate refusing medication must be advised of the proposed treatment. Two staff witnesses must then at least and sign to the fact that the witness under~tands the consequences of refusing to take the medication. Segovia ignored BOP policy and directed that May be handcuffed and taken to the "Hole". . , . 26.)ln sharp contrast to defendant Segovia. May in his Declaration did not describe the activities of January 8, 2015 as a clinic. He was ordered by guards to stand in the line so that BOP personnel could watch him swallow the lvermectin pills. When May was handed the lyermectin he explained to Defendant Cordova that he previously had an adverse allergic reaction to the drug and that Dr. Santini had changed his medication by prescribing Permethrin Cream 5% in lieu of the lvermectin. Cordova responded stating, "May, shut up and take the pills." May refused to take the medication explaining further that.he had not been required to take the s·econd round of lvermectin in ·accordance with Dr. Santini's written' orders. Cordova again responded: . "Take the pills or ~o to the Hole." · · · · 27 .)When May continued to refuse to take the lvermectin medication Cordova told him to get out of the line and to stand and wait "over there". Segovia then arrived at the line where other inmates were standing and waiting to take the medication. According to May, Cordova told Segovia, "May won't take the pills.".Cordova then stated, "Take the pills or you will go to the Hole." Neither Cordova or Segovia contest May'.s recollection· of their statements in their Declarations. In fact, Segovia confirms the conversation when tie states May "refused to take the medicine lnvermectin (sic) in the presence of a medical staff; therefore, I made the decision to place him in the ... SHU." ...... .. ., -~ -- - -- ~-------'-- ...... ·- ·~· ... - -· 28.)Segovia conveniently omits to state in his Declaration that on J~nuary 2015, May was handcuffed and paraded to the , "Hole" out in fror:it of all his fellow inmates. In his Declaration nurse Cordova states: "I was not involved in the decision to place Mr. May in the Special Housing Unit following his refusal to take lvermectin in January 2015." This statement has a dubious quality in light of the fact that Cord9va admits in paragraph 12 of his Declaration that he "renewed" the prescription for Permethrin Cream 5% for exposure to scabies after".:. May refused to take the IVermectin drug." Additionally Cordova fails to include in his Declaration that he visited May in the "Hole" shortly after renewing his prescription. During that visit on January 13, 2015 Cordova woke up May in his cell in the Hole and asked him: "How do you like your new· digs?" May responded that _being in the hole was better than having another allergic reaction and possibly going into anaphylaxic shock. Cordova then said: "You are in the "Hole" pecause you defied me. You will cha~ged and shipped out from the Camp .. ~ · 8, 29.)Cordova in his Declaration did not deny he made these statement. His c~nduct and statements are also independently corroborated by the Declaration of Marquis Dennis who does not have an interest in the case. But even if Cordova denied he made these statements he admits in his Declaration that May was put in the "Hole" because he refused to take the lvermectin drug on January 8, 2015. Cordova also does not deny that he breached BOP policy when provides for specific procedures that must be followed ~y BOP medical personnel when a prisoner refuses to take a prescribed medication. · .. . . 30.)Billy May r~mained in the "Hole" for 28 days until February 5, 2015. At no time did he receive any type of hearing to '. determined whether or not his refusal to take the lvermectin drug was a violation of any BOP regulations. He was simply . punished for 28 days and then allowed to return to the general population of the camp. Despite BOP Lieutenant Gutierrez order stating May would be held in the "Hole" pending an "investigation of a violation of Bureau regulations" no investigation was · even conducted. May to this day has not been told what BOP regulation he allegedly violated. -.. ~~ ~;~~nty year~ ~g~ i;-W~~~lngt~n ~. H~~~er,· 49~ th~: U St~t;;~ -S~preme ~-ourt-h~ld: th;~:"~ nit~d fiv-; U.S .. 210 ( 1990): prisoner · had an absolute right to refuse any medication. Once a prisoner refl!ses a prescription ~m!=lgiq_ation he C?I~ only ~e forced to take the me.dication by the BOP after his rights to due process are protected through a hearing. Before any pnsoner IS for~ed .to take the medication the BOP must obtain an opinion from a qualified, licensed medical doctor that the benefits of the med1cat1on outweigh the risks of not taking the medication. The inmate is then entitled for a court of law to review the BOP's decisio~s requiring the inmate to take the medication against his will. · .. 32. The United States Supreme Court ruled that a prisoner cannot be punished for not taking the medication or ~efusing· medical treatment without a hearing. Hewitt v. Helms, 459 U.S. 460 (1983). The Defendant's may be able to force the prisoner to take the medication by following the due process procedures outlined by the Supreme Court. However, the Defendants may not punish him for his decisions not to take the medication. Anderson v. Romero, 72 F.3d 518 (7th Cir. 1~95); Roberson v. California, 370 U.S. 660 (1962). Plaintiff was incarcerated in the Special Housing Unit or "The Hole" because the BOP refuses to recognize or follow the Supreme Court's mandate issued 25 years ago in Washingto_n v. Harper, 494 ~.S. 210 (1 ~90). RELIEF REQUESTED ; Plaintiff respectfully request that the Court enter ju_dgement in favor of May and order the following: · A. Immediate relea~e of Plaintiff Billy F. May so he can obtain immediate and competent medical care. His scheduled release date is August 12, 2015. · · B. Puniti~e damages in the ~mount of $280,000. or $10,000 per day for the 28 days in incarceration in the "Hole" to punish ·the defendants for acting in bad faith. · c. Any other ·relief the Court deems just and proper. Dated 1ui'.lk '1-'iJ = 7-of~
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