LTR-01-21-14 (filing)(with enclosure) (00572885-2)

7/27/2019 LTR-01-21-14 (filing)(with enclosure) (00572885-2)

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DAVNDSC)N LNNDEMANN, P.A.ATTORNEYS AND COUNSELLORS AT LAW

William H. Davidson, IIAndrew F. LindemannJames M. Davis, Jr.tRobert D. GarfieldMichael B. Wren'Also Admitted In North CarolinafCertified Mediator

l 6 I l Devonshire Drive, Second FloorPost Office Box 8568

Columbia, South Carolina 29202-8568Telephone: (803) 806-8222Facsimile: (803) 806-8855

www.dml-law.com

January 21, 2014

Daniel C. PlylerJoel S. HughesJustin T. BagwellDavid A. DeMastersSteven R. SpreeuwersTodd R. FlippinOf CounselKenneth P. Woodirigton

Writer's Email: alindemann(2i',dml-law.com

Hand D eliveredThe Honorable Jeanette W. McBrideClerk of CourtRichland County1701 Main StreetColumbia, South Carolina 29201RE: T.R., P.R., K.W. and A.M., et al. v. South Carolina Department of Corrections; et al.

Civil Action Num ber: 2005-CP-40-2925Our File Number: 340.6875

Dear Ms. McBride:

Please find enclosed for filing the original and one copy of the N otice of Motion andMotion to Alter or Amend Order Pursuant to Rule 52(b), and Rule 59(e), SCRCP in the abovereferenced ma tter. Please file the original and return a clocked-in copy to me by way of my courier.I have also enclosed my fimi's 25.00 check for the filing fee.By copy of this letter, I am serving copies on the Honorable J. Michael Baxley and all

counsel of record.

Thank you for your assistance in this matter.Sincerely,DAVIDSON LINDEMANN, P.A.

?,-.),Andrew F. Lindemann

AFL/jmbEnclosures


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The Honorable Jeanette W. McBrideJanuary 21, 2014Page Two

cc : The Honorable J. Michael Baxley (Via Email U.S. Mail)Daniel J. Westbrook, Esquire (Via Ema il & U.S. Mair)Stuart M. Andrews, Jr., Esquire (Via Email US. Mair)


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STATE OF SOUTH CAROLINA

COUNTY OF RICHLAND

)

rN THE COURT OF COMMON PLEAS

T.R., P.R., K.W. and A.M., et al.,@ Plaintiffs,

V.

South Carolina Depaitment of Corrections;etal.,

[g Defendants.

))

Civil Action No. 2005-CP -40-2925

MOTION ORDER INFORMATIONFORM COVER SHEET

Plaintiffs ' Counsel:Stuait M. Andrews, Jr.Daniel J. WestbrookNelson, Mullins, Riley & Scarborough, LLPPost Office Box 11070Columbia, South Carolina 29211T: 803-799-2000F: 803-256-7500Email: [email protected]: stuart.andrews@)i'ielsonmullins.com

Defense CounseUMoving Party:Andrew F. LindemannWilliam H. Davidson, IIDaniel C, PlylerKenneth P. WoodingtonDavidson & Lindemann, P.A.Post Office Box 8568Columbia, South Carolina 29202-8568T: 803-806-8222F: 803-806-8855Email: alindemann@)dml-law.comEmail: wdavidson(Qdml-law.comEmaii: dplyler@,dml-]aw.comEmail: kwoodingtoi i@)dml-law.com

[g? MOTION H EARING REQUESTED (attach written motion and complete SECTIONS s and III)g FORM MO TION, NO HEARING REQUES TED (complete SECTIONS II and m)@ PRO POSED ORDER/CONSENT ORDER (complete SECTIONS II and III)SECTION I: Hearing Information

Nature of Motion: Notice of Motion and Motion to Alter or Am end Order Pursuant to

Rule 52(b), and Rule 59(e), SCRCP (To Be Heard by Judge Baxley)Estimated Time Needed: ? Court Reporter Needed: -[g Yes / 0 NoSECTION II: Motion/Order Type[g Written motion attachedg Forrn Motion OrderI hereby move for relief or action by the court as set forth in the attached proposed order.

? ,:ya, > ?-Signature of Counsel for Defendants

January 21, 2014Date Submitted


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Motion & Order Information Forrn Cover SheetCivil Action No. 2005-CP-40-2925

SECTION III: Motion Fee[J PAID - AMOUNT: 25.000 EXEMPT: @ Rule to Show Cause in Child or Spousal Suppoit(check reason) 0 Domestic Abuse or Abuse and Neglect

0 IndigentStatus StateAgencyv.IndigentParty0 Sexually Violent Predator Act Post Conviction Relief@ Motion for Stay in Bankruptcyg Motion for Publication Motion for Execution (Rule 69, SCRCP)0 Proposed order subm itted at request of the couit; or, reduced to writing from motionmade in open court per judge s instructions Name of Court Reporter:g other:JUDGE'S SECTION

Motion Fee to be paid upon filing of the attached order. Other: JUDGE

CODE:CLERK'S VERIFICATION

DATE:

Collected by: Date Filed: MOTION FEE COLLECTED: CONTESTED - AMOUNT DUE:

J


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COUNTY OF RICHLAND

)))

IN THE COURT OF COMMON PLEAS

T.R., P.R., and K.W., on behalf of )themselves and others similarly situated; )and Protection and Advocacy for People )with Disabilities, Inc., )

)Plaintiffs, )

)V. ) NOTICE OF MOTION AND

) MOTION TO ALTER OR AMEND ORDERSouth Carolina Departm ent of Corrections; ) PURSUANT TO RULE 52(b),and William R. Byars, Jr., as Agency ) AND RULE 59(e), SCRCPDirector of the South Carolina Department )of Corrections, )

)Defendants. )

)

Civil Action No. 2005-CP-40-2925

TO: THE HONO RABLE J. MICHAEL BAXLEY

DANIEL J. WESTBROOK, ESQUIRE, AND STUART M. ANDREWS, JR., ESQUIRE,COUNSEL FOR PLAINTIFFS

YOU WILL PLEASE TAKE NOTICE that the undersigned attorneys for the Defendantswill move before the Honorable J. Michael Baxley, at such time and place as the Court maydirect, pursuant to Rule 52(b) and Rule 59(e), SCRCP, for an Order altering or amending theOrder Granting Judgment in Favor of Plaintiffs, filed January 8, 2014. The Order was receivedelectronically from Plaintiffs counsel on January 8, 2014.

The grounds for this motion are as follows:1. The Order did not address or adjudicate the following defenses and legal

arguments made by Defendants, as set out in the attached letter from the Defendants' counsel toJudge Baxley dated November 11, 201 3, and attached as Exhibit l hereto:


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(a) The failure of the Plaintiffs to sustain their burden of proving standingunder applicable South Carolina law and the decision of the United StatesSupreme Cou rt in Lewis v. Casey, 518 U.S. 343 (1996).(b) The failure of the Plaintiff Protection and Advocacy for People withDisabilities, Inc. to sustain its burden of p roving associational standing.(c) The absence of a private right of action for a violation of the SouthCarolina Constitution given the absence o f any enabling legislation per thereasoning of the Court of Appeals in Gibbs v. South Carolina Department

of Probation, Parole, and Pardon Services, Opinion No. 2002-UP-363(Ct. App. 2002).

(d) The application of the separation of powers doctrine, includingspecifically the application of the law of this case as established by thisCourt's unappealed and now final rulings dismissing the South CarolinaGeneral Assem bly as a party-defendant in this litigation.

(e) The public policy of the State of South Carolina including limits on therole of the judiciary as established in such cases as Al-Shabazz v. State,338 s.c. 354, 527 S.E.2d 742 (1999); Sullivan v. South Carolina Dept. ofCorrections, 355 s.c. 437, 586 S.E.2d 124 (2003); and Abbeville CountySchool District v. State, 335 s.c. 58, 5 15 S.E.2d 535 (1999).

(f) The precedent and public policy of the State of South Carolina asestablished in State v. Wilson, 306 s.c. 498, 413 S.E.2d 19 (1992), that thepunishment of the mentally ill for violations of law (which would beinclusive of disciplinary violations) does not constitute "cruel and unusualpunishment" in violation of Article I, 15 of the South CarolinaConstitution.

(g) The Plaintiffs' case gives rise to a non-justiciable political question beyondthe control of the South Carolina Department of Corrections, including thebudgetary decision-making and priorities made by the General Assemb lyand the laws requiring the incarceration of the m entally ill, all of which arepolitical decisions made by the General Assembly which was dismissed asa party to this litigation for that very reason.(h) The Court's failure to apply the directive of the South Carolina Supreme

Court that the Cruel and Unusual Punishrnent Clause of Article I, 15 ofthe South Carolina Constitution should be construed and applied under thesame analysis as applied to the Eighth Amendment of the United StatesConstitution. See, State v. Wilson, 306 s.c. 498, 413 S.E.2d 19, 27 (1992)("the analysis we employ is the same under both constitutions"). As aresult, Article I, Fg 15 should be construed and applied in accordance withthe federal law that actually governs the South Carolina Department ofCorrections per the decisions of the United States Supreme Court, the

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Fourth Circuit Court of Appeals and the United States District Court forthe District of South Carolina, including by way of example the decisionof the Fourth Circuit in Williams v. Branker, 2012 WL 165035 (4th Cir.2012), which address issues related to the provision of men tal health carein prisons. By disregarding the existing authority of the United StatesSupreme C ourt, the Fourth Circuit Court of Appeals and the United StatesDistrict Court for the District of South Caro lina, and by ado pting case lawfrom other federal circuits in conflict thereof, this Court's decision createsinconsistency and establishes two differing standards for SCDC to followunder the State and Fede ral Constitutions. The same policy or conduct bythe Department of Corrections should not be deemed constitutional underthe Eighth Amendment per federal case law and yet unconstitutional underArticle I, 8, 15 per the decision of this Court.

The issues set forth above have been previously raised and discussed in briefs or legalmemoranda filed by the Defendants during the course of this litigation, as well as duringarguments during the trial of this case. Each of these issues was also discussed at length duringthe closing arguments held at the end of the trial,' and with respect to the issue of standing, theCourt required the parties to submit further briefing post trial. However, the C ourt has not ruledon any of these issues in its Order Granting Judgment in Favor of Plaintiffs, filed January 8,2014.

Citing Rules 52(b) and 59(e), the South Carolina Supreme Court has explained that "[i]fthe losing party has raised an issue in the lower court, but the court fails to rule upon it, the partymust file a motion to alter or amend the judgment in order to preserve the issue for appellatereview." I'On v. Town of Mt. Pleasant, 338 s.c. 406, 526 S.E.2d 716, 724 (2000).Furtherrnore, in Elam v. South Carolina Dept. of Trartsportation, 361 s.c. 9, 602 S.E.2d 772(2004), the Supreme Court explained that "[ilssues and arguments are preserved for appellate

I The Defendants incorporate by reference the detailed legal arguments containedin the transcript of the closing arguments at trial as well as the notebook of federal casessubmitted to the Court which includes numerous cases where the sam e issues have beenadjudicated in the Defendants' favor by the federal courts.

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review only when they are raised to and ruled on by the lower court." 602 S.E.2d at 779-780.(Emphasis added).

Therefore, in order to ensure that these issues and arguments are properly preserved forappellate review, the Defendants again request that the Court adjudicate each and every one ofthese issues and defenses. By letter dated November 11, 2013, the Defendants' counselrequested this very relief - that the Court address these issues and defenses; yet, the Courtcontinues to decline to do so without providing any explanation therefor. The Court's continuedrefusal to address these legal defenses, which importantly include issues of subject matterjurisdiction such as the Plaintiffs' lack of standing to proceed and other issues related to whethera "case or controversy" exists, results in a denial of the Defendants' due process rights.Importantly, the Court's actions deprive the Defendants of fundamental fairness by ruling on thePlaintiffs' allegations but refusing to rule on the Defendants' defenses, including importantjurisdictional, justiciability, and other constitutional issues.

Instead of including a discussion of the legal defenses and issues raised by theDefendants in the Order as required, the Court sent the Defendants' counsel an email datedJanuary 8, 2014 (which is the same date as the Order was filed), which states: "From reading theproposed order, you will notice that Judge Baxley did not include the issues you suggested givenhis preliminary rulings throughout the progress of the case." See, Email dated January 8, 2 014(attached as Exhibit 2). However, Judge Baxley did not make "preliminary rulings" on amajority of the defenses and issues cited herein; instead, those defenses and issues have beencompletely disregarded. Furtherrnore, with respect to any defenses or issues in which"preliminary rulings" may have been made during trial, the Court is well aware that final rulingsin writing are required to be made. See, Ashenfelder v. City of Georgetown, 389 s.c. 568, 698S.E.2d 856 (Ct. Ap.. 2010) (case where appeal was dismissed after Judge Baxley failed to

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memorialize oral rulings in a written order). In fact, on the jurisdictional issue of standing, theCourt provided what Judge Baxley called a "preliminary deterrnin[ation]" by way of a July 27,

2012 letter wherein the Court made clear that the letter was issued "without making any finaldecisions and thus declining to issue any partial or final Order at this time." See, Letter datedJuly 27, 2012 (attached as Exhibit 3). That letter also did not include any legal citations ordetailed discussion of the issue of standing, and most importantly, the Court did not explain howany finding of standing for Plaintiff T.R. is consistent with or in accord w ith the seminal decisionof the United States Supreme Court in Lewis v. Casey, 518 U.S. 343 (199 6).

By way of this motion filed pursuant to Rules 52(b) and 59(e), the Defendantsrespectfully request again that the Court adjudicate the defenses and issues raised by theDefendants and for which no final written order has been issued. The Defendants further requestthat based thereon the Court dismiss the Plaintiff's remaining claim and enter judgment for theDefendants.

2. The Court's Order failed to include or make note of the dismissal of the PlaintiffsP.R. and K.W. as party-plaintiffs when the evidence clearly reflected and the Courtacknowledged that P.R. and K.W. are no longer incarcerated and m ay no longer serve as classrepresentatives. Furthermore, the Plaintiffs presented no evidence regarding P.R. or K.W. attrial.

3. The Order incorrectly reviewed the evidence based on the "minimally adequate"standard that the Court concluded was embodied in Article XII, 2. This is shown by the factthat the Court's letter dated August 23, 2013, announcing its decision and requesting thatPlaintiffs' counsel prepare a proposed order, stated that the six Ruiz factors would serve asbenchmarks for determining whether SCDC provided minimally adequate mental healthservices." See, Letter dated August 23, 2013, p. 3 (attached as E xhibit 4). (Emphasis added).

s


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The Plaintiffs' counsel reminded the Court in an e-mail dated August 26, 2013 (contained inExhibit 5) that the Plaintiffs had voluntarily dismissed their Article XII, 2 "minima lly

adequate" claim. However, the substance of the Order as issued was unchanged from the versionas outlined in the Court's August 23, 2013 letter, which was erroneously based upon the ArticleXII, 2 standard.

The Court had previously held in its 2010 order on constitutional standards that "[t]heplain meaning of the terms 'cruel and unusual' and 'minimally adequate' connote disparateconcepts." See, Order filed September 29, 2010, p. 22. (Emphasis added). However, in theCourt's August 27, 2013 e-mail (contained in Exhibit 5), the parties were advised that "theevidence in the two constitutional claims is substantially similar." This latter assertion conflictswith the prior positions of the Court on this issue, as well as conflicts with the positions of bothparties on the point.

4. The Order likewise did not ack?nowledge that the standard for establishing a crueland unusual punishment claim is that "only extreme deprivations are adequate to satisfy theobjective component of an Eighth Amendment claim." Shakka v. Smith, 71 F.3d 162, 166 (4thCir.l995). (Emphasis added). To the same effect is Rhodes v. Chapman, 452 U.S. 337 (1981),which holds that:

conditions that caru?iot be said to be cruel and u nusual undercontemporary standards are not unconstitutional. To the extentthat such conditions are restrictive and even harsh, they are part ofthe penalty that criminal offenders pay for their offenses againstsociety.

452 U.S. at 347.

s. The Order is without specific legal support, as shown by the fact that it containsno discussion at all of the specific facts of any decided case, state or federal, that would serve asa comparison with the specific facts of the present case. For instance, the Order does not discuss

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Williams v. Branker, 2012 WL 165035 (4th Cir. 2012), a case in which the Fourth Circuit heldthat conditions similar to some of the conditions in the present case did not violate the Eighth

Amendment. The Order, in fact, cites no federal case law that has adjudicated similar claimsbrought by inmates under the Eighth Amendment against SCDC and its employees, including themany cases provided by the Defendants' counsel to the Court.

6. The Order was in error in relying exclusively on either the opinions of Plaintiffs'experts or on American Correctional Association Standards, or both. However, the United StatesSupreme Court held more than 30 years ago that ACA standards "do not establish theconstitutional minima." Bell v. Wolfish, 441 U.S. 520, 543 (1979). The Supreme Court has alsoheld that constitutional standards are not established by "opinions of experts as to desirableprison conditions." Rhodes v. Chapman, 452 U.S. 337, 350 (1981). Accord, Alexander S. Byand Through Bow ers v. Boyd, 876 F.Supp. 773, 799 (D.S.C. 1995).

7. Even if the Plaintiffs have presented some evidence of systemic constitutionalviolations, which the Defendants deny, the extensive remedies ordered by the Court are far inexcess of what might be necessary to remedy any alleged violations. Court-ordered remedies infederal cases in the 1970s, 1980s and 1990s that were similarly too broad led Congress to enactthe Prison Litigation Reform Act (PLRA), P.L. 104-134, 802. That Act, as it pertains tofederal prison conditions litigation, provided that "[p]rospective relief in any civil action withrespect to prison conditions shall extend no further than necessary to correct the violation of theFederal right of a particular plaintijff or plaintiffs." 18 U.S.C.A. 3626(a)(1)(A). (Emphasisadded). Congress noted in the legislative history of the PLRA that this

provision stops judges from imposing remedies intended to effectan overall modernization of local prison systems or provide anoverall improvement in prison conditions by"limit[ing] remediesto those necessary to remedy the proven violation of federalrights").

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Plyler v. Moore, 100 F.3d 365, 369 (4th Cir. 1996), quoting H.R.Rep. No. 21, 104th Cong., 1stSess. 24, n.2. (Emphasis added).2

While the PLRA is not binding in this state court litigation, it provides guidance for aproperly limited role of courts and in deciding how systemwide constitutional issues, if theyexist, should be addressed by the courts. The PL RA serves as a model for compliance with whatthe South Carolina Supreme Court has previously stressed as a "hands-off approach that thisCourt has taken towards internal prison matters." Sullivan v. South Carolina Dept. ofCorrections, 355 s.c. 437, 586 S.E.2d 124, 128 (2003), citing Al-Shabazz v. State, 338 s.c. 354,527 S.E.2d 742 (1999)

8. The Court also erred in holding that because "it is the action of a circuit court thattriggers the placement of an imnate into the custody of SCD C, under Court authority" then "theCourt has the inherent pow er - and responsibility - to see that the imprisonment of that inmatecomplies with constitutional mandates." No such inherent authority exists under South Carolinalaw. In fact, s.c. Code Ann. 24-3-20(A) provides that "[a? person convicted of an offenseagainst this State and sentenced to imprisonment for more than three months is in the custody ofthe South Carolina Dep artment of Corrections," without reference to any authority of thesentencing court. In addition, it has been held that "the claim of inherent authority to imposeconditions of confinement as a part of the sentencing process must fail. ... [Elxcept wherespecific statutory authority exists ,the place and con ditions of confinement are in the first

2 See also, Taylor v. Freeman, 34 F.3d 266 , 271 (4th Cir. 1994), which was a pre-PLRA case, wherein the Fourth Circuit reversed the trial court's "assumption of extensivemanagerial control over the prison at Morrison [which] was premised upo n conclusory findingsthat we doubt could sup port even circumscribed intervention." 34 F.3d at 271 .

3 It is noted that this Court's Order does not rely on - let alone even cite to - anySouth Carolina Suprem e Court precedent a ddressing the role of the judiciary in adjudicatingprison-related claims and issues, including such important cases as Al-Shabazz and Sullivan.

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instance, matters of executive rather than judicial branch authority." United States v. Huss, 520F.2d 598, 602 (2d Cir. 1975). (Emphasis added). See also, United States. v. Amawi, 579

F.Supp.2d 923, 924 (N.D. Ohio 2008) ("[t]he defendant has cited no authority, and I know ofnone, that permits me to enter orders regulating conditions of post-trial confinement. Indeed, thelaw is to the contrary [citing United States v. H ussJ."

CONCLUSION

For the foregoing reasons, the Defendants respectfully request that the C ourt alter oramend its Order filed on January 8, 2014, as requested herein, and enter judgment in favor of theDefendants.

Respectfully submitted,DAVIDSON & LINDEMANN, P.A.

, : ,=2,WILLIAM H. DAVIDSON, IIANDREW F. LINDEMANNKENNETH P. WOODINGTONDANIEL C. PLYLER1611 Devonshire Drive, 2nd FloorPost Office Box 8568Columbia, South Carolina 29202-8568wdavidsoii(adml-law.comaliiidemann(2D,dml-law.comkwoodington(adml-law.comdplyler(i,dml-law.comT: 803-806-8222F: 803-806-8855

Counsel for Defendants South Carolina Departmentof Corrections and W illiam R. Byars, Jr.Columbia, South CarolinaJanuary 21, 2014

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Exhibit 1


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DAV?IDSQN & LNNDEMANN, P.A.ATTORNEYS AND COUNSELLORS AT LAW

William H. Davidson, IIAndrevv F. Lindemarin"'James M. Davis, Jr.fRobert D. GarfieldMichael B. Wren

'Also Admitted In North Carolina'ICeSfied Mediator

l G I I Devonshire Drive, Second F loorPost Office Box 8568

Columbia, South Carolina 29202-8508Telephone: (803) 806-8222Facsimile: (803) 800-8855

www. d m l- I aw. c o mNovember 11, 2013

Daniel C. PlylerJoel S. HughesJustin T. BagwellDavid A. DeMastersOf CounselKenneth P. Woodingtori

Via Email OnlyThe Honorable J. Michael BaxleyPresiding Circuit Court Judge531 East Carolina AvenueHartsville, South Carolina 29550-4311RE: T.R., P.R., K.W. and A.M., et al. v. South C arolina Department of Corrections; et al.

Civil Action Number: 2005-CP-40-2925Our File Number: 340.6875

Dear Judge Baxley:Please accept this letter as the comments that the Court has allowed from the Defendantswith respect to the proposed Final Order submitted by Plaintiffs. Thank you for the opportunityto offer some comments before you finalize your decision.In your August 23, 2013 letter, you directed as follows: "Attorneys for Defendants arenot asked to agree or consent to this Order, but are requ ested to review it for mistake of fact ormisstatement of their party's position." Given those directions regarding "mistake of fact," we

are uncertain what the Court is specifically looking for. Suffice it to say, the Defendantsdisagree with the Court's findings of fact on the whole. We believe that the vast ma jority of thefactual findings are unsupported by the evidence that was properly admitted in the record, andthus, would constitute "mistake of fact." Likewise, the D efendants do not waive the evidentiaryobjections made during the trial of the case. However, our response would be lengthy if theCourt is asking us to comment on whether the findings of fact are erroneous. If that is the typeof commentary that the Court is seeking at this juncture, please advise and we can gladly offerthat discussion.

As for the "misstatement of the party's position," we would point out, with all duerespect, that the proposed Final Order includes no d iscussion of critical legal issues and defenses.As the Court is well aware, this Court's preliminary rulings on issues of justiciability and subjectmatter jurisdiction as well as denials of pre-trial motions to dismiss on various de fenses are notbinding or final rulings. In such cases as Ballenger v. Bowen, 313 s.c. 476, 443 S.E.2d 379


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The Honorable J. Michael BaxleyNovember 11, 2013Page Two

(1994) and McLendon v. South Carolina Department of Highways and Public Transportation,313 s.c. 525, 443 S.E.2d 539 (1994), the South Carolina Supreme Court has explained that atrial court's preliminary mlings in denying a motion to dismiss or a motion for summaryjudgment do not establish the law of the case and those issues or defenses must be re-asserted attrial in order for a final binding decision to be rendered. Therefore, as the Defendants' counselargued during closing argument to this Court, the issues of justiciability and the defenses raisedby the Defendants must be addressed in this Court's Final Order.

The proposed Final Order forwarded by the Plaintiffs' counsel fails to address any ofthose critical and, in our judgment, dispositive legal issues. Therefore, in an attempt to avoid aRule 52(b) motion to preserve these issues for appea l, the Defendants would respectfully requestthat the Court address each of the legal issues and d efenses argued in the D efendants' motion forinvoluntary non-suit at the close of the Plaintiffs' case-in-chief and re-asserted at the close of thecase. Those issues include the following:(a) The failure of the Plaintiffs to sustain their burden of proving standingunder applicable South Carolina law an d the decision of the United StatesSupreme C ourt in Lewis v. Casey, 518 U.S. 343 (1996).(b) The failure of the P laintiff Protection and Advocacy for People withDisabilities, Inc. to sustain its burden of proving a ssociational standing.(c) The absence of a private right of action for a violation of the SouthCarolina Constitution given the absence of any enabling legislation per thereasoning of the Court of Appeals in Gibbs v. South Carolina Department

of Probation, Parole, and Pardon Services, Opinion No. 2002-UP-363(Ct. App. 2002).(d) The application of the separation of powers doctrine, including

specifically the application of the law of this case as established by thisCourt's unappealed and now final rulings dismissing the South CarolinaGeneral Assem bly as a pa rty-defendant in this litigation.

(e) The public policy of the State of South Carolina including limits on therole of the judiciary as established in such cases as Al-Shabazz v. State,338 s.c. 354, 527 S.E.2d 742 (1999); Sullivan v. South Carolina Dept. ofCorrections, 355 s.c. 437, 586 S.E.2d 124 (2003); and Abbeville CountySchool District v. State, 335 s.c. 58, 515 S.E .2d 535 (199 9).


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The Honorable J. Michael BaxleyNovember 11, 2013Page Three

(f) The precedent and public policy of the State of South Carolina asestablished in State v. Wilson, 306 s.c. 498, 413 S.E.2d 19 (1992), that thepunishment of the mentally ill for violations of law (which would beinclusive of disciplinary violations) does no t constitute "cruel and unusualpunishrnent" in violation of Article I, 15 of the South CarolinaConstitution.

(g) The P laintiffs case gives rise to a non-justiciable political question beyondthe control of the South C arolina Department of Co rrections, including thebudgetary decision-making and priorities made by the General Assemblyand the laws requiring the incarceration of the mentally ill, all of which arepolitical decisions made by the General Assembly w hich was dismissed asa pmty to this litigation for that very reason.(h) The Coutt's failure to apply the directive of the South Carolina SupremeCourt that the Cruel and Unusual Punishrnent C lause of Article I, S, 15 ofthe South Carolina Constitution should be construed and applied under thesame analysis as applied to the Eighth Amendment of the United StatesConstitution. See, State v. W ilson, 306 s.c. 498, 413 S.E.2d 19, 27 (1992)

("the analysis we employ is the same under both constitutions"). As aresult, Article I, 15 should be construed and a pplied in accordance withthe federal law that actually governs the South Carolina Department ofCorrections per the decisions of the United States Supreme Court, theFoiuth Circuit Court of Appeals and the United States District Court forthe District of South Carolina, including by way of example the decisionof the Fourth Circuit in Williams v. Branker, 2012 WL 165035 (4th Cir.2012), which ad dress issues related to the provision of mental health carein prisons. By disregarding the existing authority of the United StatesSupreme Court, the Fourth Circuit Court of Appeals and the United StatesDistrict Court for the District of South Carolina, and by a dopting case lawfrom other federal circuits in conflict thereof, this Court's decision willcreate inconsistency and will establish two differing standards for SCDCto follow under the State and Federal Constitutions. The same policy orconduct by the Department of Corrections should not be deemedconstitutional under the Eighth Amendment per federal case law and yetunconstitutional under Article I, 15 per the decision of this Cou rt.

The foregoing are all issues of justiciability, public policy, and defenses that theDefendants raised during the trial and at the close of the ev idence. The Defenda nts therefore


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The Honorable J. Michael BaxleyNovember 11, 2013Page Four

respectfully request that the Court fully consider, adjudicate, and address these issues in its FinalOrder.

Thank you again for the opportunity to make these comm ents before the issuance of theFinal Order. If you have any questions or require any further briefing or discussion of any ofthese issues, please let us know.

Sincerely,D A IN & LINDEMANN, P.A.?f?

H. Davidson, II,=, ;.,,L

Andrew F. Lindemaru'i

AFL/CC: Daniel J. Westbrook, Esquire (Via Email Only)Stuart M. Andrew s, Jr., Esquire (T"ia Ema il Only)


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Exhibit 2


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anAro*htl jlllAl llll Lindemann

From:Sent:To :Cc:Subject:

Baxley, J. Michael Law Clerk (James H. Scruggs, III) Wednesday, January 08, 2014 3:23 PMAndrew LindemannWilliam H. Davidson IISCDC Final Order

Mr. Lindemann,I hope this email finds you well. I was hoping to reach you by telephone but was unsuccessful, and wanted to send you abrief note on behalf of Judge Baxley thanking you for your comments submitted in connection with the FinalOrder. From reading the proposed Orr3er, you will notice that Judge Baxley did not include the issues you suggestedgiven his preliminary rulings throughout the progress of this case. We appreciate the professional manner in which youargued these points and Iook forward to continuing to work with you.Sincerely,Jamie ScruggsJames H. Scruggs, IIILaw Clerk to the Honorable J. Michael BaxleyCircuit Court of the Fourth Judicial Circuit531 E. Carolina AvenueHartsville, South Carolina 29550Telephone: 843.383.4114Fax: 843.383.4116ibaxleylc@,sccourts.org


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Exhibit 3


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..}':Jy'.24 :

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*tate of ,6mttT) ( II,aro[ma%I)e QDirtuit Q?ourt of f5e jfourtl) :7ubiciai Qnirtuit

J. MiCHAELBAXLEY

JUDGE

M. Anarews, Jr., Esq.J. Westbrook, Esq.on, Mt

OfficeNelso;n, Mullins, Riley & ScarboroughPost Office Box 11070Columbia,a, SC 29211

' i lliam H. D avidson, II, Esq.William'? Anrl'rpwAndrew F. Lindemann, Esq.Kenneth P. Woodington, Esq,Daniel C. Plyler, Esq.aruelavidsiavidson & T,indemann PA

Post ('ffice Box 8568Columb-ia,-SC 29202Re: T.R., P.R., and.K.W. et. al. v. SCDC

C/A No: 2005-CP-40-02925

July 27, 2012

531 EAST CAROLINA AVENuEHARTSVILLE. SOUTH CAROLINA 29550TELEF'HONE: (843) 383.4114FAX: (843)383.4116E-MAIL: %baxley%@sxoutls.otg

Gentlemen:

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Thank you for the information and memoranda you provided in response to ourrequest"for additional briefing on-Defendant's closing-argument for dism'ssal on theissue ',of standing, and Plaintiffs' subsequent motion for intervention by newl 81representative parties. After review of the arguments made by both sides, as ismore fully explained below, the Court has preliminarily determined that theplaint.iff class, including SCP&A and T.R., has standing to pursue their claims and,at thel, same time, the Court declines to allow a post-trial substitution of intervenorsto repiace current class representatives for whom no evidence was adduced at trial.

.eOn thle issue of standing, at the time of trial, T.R. was the only named Plaintiffremaii'iing in the custpdy of SCDC. Although T.R. himself never testified, Plaintiffspreser4ted evidence a t trial of systemic deficiencies in SCDC's mental healthprogrffi that expose every inmate with serious mental illness-including specific


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referonce to T.R. -to a substantial risk of serious future harm. Unde r this Court'sOrdm on Constitutional Standards dated Septem ber 29, 2010, injury in an EighthAmeridment case a lleging systemic deficiencies may be es tablished by evidence of asubstitial risk of serious future harm. Therefore, under this constitutionalstand'prd governing this case and the evidence presented at trial, T.R. and, byon, the entire plaintiff class have standing to pursue their claims.

toires

As to Plaintiffs' proposed intervention of six different individuals as classrepresentatives, the Court finds that the motion to intervene is untimely. Moreth'an two yearsa before this case w as tr ied, in -October 2009, Plaintiffs were aw arethat T.R. was the sole remaining class representative sti l l within SCD C custody.Ther4fore, Plaintiffs have know n for at least that long that the claims m ade by theotherl,named class representatives were moot. Moreover, allowing intervention atameiate dathis lQte date would greatly prejudice Defendants, who conducted discovery andtried the case without any indication that the proposed intervenors would be askedto be treated as class representatives. For these reasons, the Court declines toallow the proposed intervention.

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Based upon the above, without making any final decisions and thus declining toissue any partial or final Order at this time, the Court is of the opinion that thePlaint,iffs' class has su fficiently survived the trial process for this Court to c onductan adjditional hearing solely on the issue of rem edy, so that a final decision may bemade ',in this case. Because there was evidence concerning damages and remediesset forth at trial, the Court does no t wish to open the record for ne w witness es, butrather to receive arguments from counsel, based on the existing record, as to thespeci5cs of the remedies requested, the physical plant costs associated therewith forcon: ction and operation, the additional personnel necessary to accommodatesuch jemedies and the resulting personnel costs, as well as what ongoing o versight(if an3>) the P laintiffs propose to adm inister such remedies. Stated d ifferently, theCourtl asks the Plaintiffs to propose a reasonable and specific overall final remedyplan, ',divulge such plan to the Defendants at least thirty (30) days prior to theremeay h earing, and the Court will schedule mi?itually agreeable and sufficie'nttimiourt time to conclude the matter.In cor4ducting the hearing, it is not the Court's intention to call witnesses, but forto argue from the record that has already been made, and present suchoaexhibi:s as are necessary to assist the parties and the C ourt in focusing solely onthe is;sue of remedy. Also at the hearing, the Court will be prepared to heare lSSu'gurrien'ts on Defendant's post-trial motion to enforce the protective order in thisI'icase, 4r in the alternative for the issuance of a rule to show cause. Finally, after thehearir4g on the reme dy, we will also be prepared to accept and hear a ny motions atthe cl4se of all the evidence. The parties are asked to confer am ong themselves asto the l,date of the hearing and court time necessary therefor, and a timetable for theprepa:ation and sharing of plans and proposed exhibits, and you are further


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i8'reque,sted to ad vise the Court w ithin fifteen (15) days o f the date of this letter wha tagreement you h ave been a ble to reach. Please be aware that, as of today's date,Maso: King is no longer working in this office and has move to private practice.Please(ibaxliy:

address your resporises to judicial assistant Jarnie Capell([email protected]) until September 1, by which time we w ill have law clerkJamie Scruggs on board and up to speed on this case.Please be advised that the import of this letter is not to advise that the Plaintiffshave #on the case at the trial level and will receive a verdict in their favor. Thisdetermination is yet to be made. The Court has merely determined that thereexistsl, sufficient evidence in this record for the Court to consider the remedial phaseof the'. case. Obviously, as in many equ itable cases, even if the Plaintiff does mee tthe tmrden of proof, the practicality and plausibility of the remedy requested mayiately (

ded th.ultimately drive the decision in the case. Again, thank you for the information youprovidled the Court as w ell as your patience while the decision in this case remainsunder advisement.

llSincerely,@s

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Exh ib it 4


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6tate o 6out5 ( Darciiina%0e (firtuit Q[i:iurt of toe 5"ourt5 ubitiai Q[jtr:uitJ. MICHAEL

BAXLEYJUOGE

S3I EAST CAROLINAAVENLIEHARTSVILLE. SOuTH CAROLINA 29550TELEPHONE? (843)38:$41I4FAXI (s


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Counsel:

It has been the privilege of this writer to serve the State of South Carolina asa general jurisdiction judge for fourteen years. At the time this case was heard,Court Administration reported there were more than 5,000 new case filings per yearfor each of our state's circuit court judges. Thus, over 70,000 cases of everyimaginable sort have come to this Court over the years. This case, far above a llothers, is the most troubling.The evidence in this case has proved that inmates are dying in the SouthCarolina Department of Corrections for lack of basic mental health care. As asociety, and as citizen jurors and judges make decisions that send people to prison,we have the reasonable expectation that those in prison-even though it is prison -will have their basic health needs met by the state that imprisons them. And thisincludes mental health. The evidence in this case has shown that expectation to bemisplaced.Economic downturn and financial pressures have brought great change to ourcountry. One of these is that the various state Departments of Corrections are nowmore than ever the collection place of the seriously mentally ill among the citizenry.The incidence of serious mental illness within the general population is less thanone percent. In the typical Department of Corrections, it is between 15 and 20%. InSouth Carolina, the evidence in this case shows it to be approximately 17%, in spiteof the Department's claim that it is 12.9%. If 17% of the prison population hadadvanced cancer, and there was inadequate and in some cases nonexistenttreatment for cancer in prison, the public would be outraged. Yet this is the case forserious mental illness.This litigation does not occur in a vacuum. What happens at the Departmentof Corrections impacts all of us, whether it be from the discha rge of untreatedseriously mentally ill individuals from prison into the general population, ortremendously increased costs for treatment and care that might have b eenprevented, or the needless increase in human suffering when use of force replacesmedical care. The decisions of our Courts reflect the values of our society. To thatend, our state can no longer tolerate a mental health system at the South CarolinaDepartment of Corrections that has broken down due to lack of finances and focus.While the Court finds the inadequacy of the mental health system at SCDChas not occurred by design, but instead by default, the Court further finds thisdecision in favor of Plaintiffs should not come as a shock to SCDC. Previousinternal and external reviews of the SCDC mental health system have foundmultiple inadequacies and failures. The Court recognizes that the Department isunderfunded and understaffed in many particulars, not just mental health servicesdelivery. The operation of any state agency is a matter of competing priorities, andthe General Assembly, as keeper of the public purse, is not in a position toexcessively fund any entity. Thus, this decision will ultimately require an increasein priority for mental health services commensurate with the level of serious mentalillness within the prison population.

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DECISION

In its prior Order Setting Forth Applicable Constitutional Standards("Order"), the Court delineated the standards of liability and burdens of proofapplicable to Plaintiffs' constitutional claims under A rticle I, 15 and A rticle XII, 2 of the Sou th Carolina Cons titution. To prevail on the c laim under Article I, 15,the Court stated that Plaintiffs must prove that Defendant acted with "deliberateindifference to serious medical needs of prisoners." Estelle u. Gamble, 429 U.S. 97,104 (1976). This deliberate indifference standard contains both an objective andsubjective component. See Farmer [). Brennan., 511 U.S. 825, 834-37 (1994). Tosatisfy the objective component, Plaintiffs must demo nstrate that the risk of harmto which they are subjected is sufficiently serious. Id. The subjective component ismet by p roof that a defendant "know s that inmates face a sub stantial risk of seriousharm and d isregards that risk by failing to take reasonable mea sures to abate it."Id. As to Plaintiffs' claim under Article XII, 2, the Court held that the issue waswhether the South Carolina Department of Corrections' ("SCDC") program fordelivering mental health services is minimally adequate.The Court stressed the different analyses applicable to each constitutionalclaim, and also noted the need for guideposts in ruling on Plaintiffs' claims.Accordingly, within these legal frameworks, the Court identified and articulated sixfactorsl that would serve as benchmarks for determining whether SCDC providedminimally adequat.e mental health services. Stated succinctly, the evidence at trialshould establish whether the SCDC mental health services system contained thefollowing adequately functional components:

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1. A systematic program for screening and evaluating inmates toidentify those in need of mental health care;2. A treatment program that involves more than segregation andclose supervision of mentally ill inmates;3. Employment of a sufficient number of trained mental healthprofessionals;4. Maintenance of accurate, complete, and confidential mental healthtreatment records;

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s. Administration of psychotropic medication only with appropriatesupervision and periodic evaluation; and6. A basic program to identif5r, treat, and supervise inmates at riskfor suicide.

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Employing these factors in the context of the analytical frameworksapplicable to each of Plaintiffs' constitutional claims, the Court f'inds by apreponderance o f the evidence that the Plaintiffs have met the burden of proof withrespect to each of their constitutional claims against the Defendant SCDC only. Allother remaining Defendants are dismissed based upon the lack of evidence put forthagainst that particular party. Any remaining pending motions are herebydismissed as moot. With regard to Plaintiffs' claims against SCDC, the Court makesthe following threshold findings.First, the mental health program at SCDC is severely understaffed,particularly with respect to mental health professionals, to such a degree as toimpede the proper administration of mental health services. This deficiency has asubstantial impact on every aspect of the mental health program, beginning atReception and Evaluation, continuing into the treatment programs for mentally illinmates, and ending with deficient discharge planning for seriously mentally illinmates being returned to the general public.Second, seriously mentally ill inmates are exposed to a disproportionate useof force and segregation when compared w ith non-mentally iu inmates. Segregationis often used in lieu of a treatment plan, an action that has sev ere consequences forinmates suffering from mental illness, particularly those in crisis, includingconcomitant beha vioral issues that place all inmates and corrections officers at risk;disturbance in eating and sleeping cycles, disruption of medication administration,and dee pening men tal il lness that has caused the death of multiple inmates; and,the stigmatization of mental illness as opposed to treatment that prevents manymentally ill inmates from participating in the mental health system.Third, mental health services at SCDC lack a sufficiently systematicprogram that maintains an accurate and complete record to chart a mentauy illinmate's treatment, progress, or regression.Last, SCDC's current policies concerning suicide prevention are inadequateand have resulted in the unnecessary loss of life among seriously mentally illinmates.As a result of the above findings, the Court grants judgment in favor of thePlaintiffs on both constitutional claims.Below, the Co urt has separated the remainder of this letter into two sections.The first Section articulates the factual findings and conclusions underlying theCourt's decision by examining each of the six Ruiz factors listed above. The findingsmade therein are by a preponderance of the evidence. Section Two then goes on toaddress the remedy the Cou rt will grant in this case and the mechanism used toachieve it.With regard to the factual findings and conclusions mentioned below inSection One, there are several references to individual circumstances involvingspecific inmates. The Department argued at trial that references to individualinmates and their particular situation was anecdotal and not indicative of thegeneral administration of mental health services. Moreover, counsel for SCDC

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essentially argued that some of the specific inmate situations were "outliers" in thatsuch was a co nstellation of unique eve nts and circumstances that brought abou t anunfortunate result. The Court specifically rejects that argument. W hile no systeminvolving thousands of inmates is expe cted to be perfect, the Court finds that theindividual circumstances referred to below are the result of a system that isinherently flawed in many respects, understaffed, underfunded, and minimallyinadequate.I. FACTUAL FINDINGS/DISCUSSION

A. A systematic program for screening and evaluating inmates toidentify those in need of medical care.As of 2011, 12 to 13o/o of the SCD C inmate population had been diagnosed bySCD C with a mental illness and were on the Depa rtment's mental health caseload.Based on that data, with a total inmate population at the time of trial of 23,306, a12.9% fraction yields an approximate figure of 3,006 inmates that have beeridiagnosed as seriously mentally ill.2 Based on universally accepted nationalstatistics, evidence presented to the C ourt at trial strongly indicates this percentageshould be m uch higher. Mult iple studies conducted nationwide s'uggest that a moreaccurate percentage of inmates with a serious mental il lness should be som ewherein the range of 15 to 20o A. In addition, Dr. Raym ond F. Patterson, M.D. testifiedthat after detailed analysis his approximate figure for SCDC was 17o/o, and theCourt finds the base s of his analysis to be credible. The Court further finds this lowacknowledged percentage of mentally ill inmates at SCDC troubling because itindicates a high likelihood that there are hundreds o f inmates with a serious m entalillness at SCDC who are not receiving any treatment due to deficiencies in theprocess used to identify and classify those with a serious m ental illness. This lowidentification of mentally ill inmates has a synergistic impact on the mentally illpopulation, as it leads to a reduction in mental health professionals, the furtherdisproportionate cutting of costs in difficult economic times within the mentalhealth system because of a perceived lack of need for services, and a skewedanalysis as to the efficacy of the existing mental health system. Reception andEvaluation ("R&E") serves as the intake f'acility for inmates entering into SCD C. Ifinmates with mental illnesses are not identified and appropriately classified atR&E, the Court finds that these inmates face a substantial risk of serious harm.In addition to the concerns mentioned above, there was also evidencepresented to the Court of regular violations of SCDC mental health policy, two ofwhich are particularly relevant to the Court as they relate to the screening andevaluation process at R&E. First, SCDC policy requires that inmates be seenwithin forty-eight hours after being assigned to a mental health counselor by intakepersonnel. At trial, there was evidence submitted to the Court of regular andpersistent violations of this policy. Second, inmates are not being seen by a

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psychiatrist within thirty days of the initial assessment by that mental healthcounselor when a need for psychiatric treatment is indicated. Consequently, thisresults in inmates who are referred to a psychiatrist, but are transferred to thegeneral population prior to assessment by a psychiatrist, creating a risk of harm forall inmates.The Court finds, due to the concerns listed above, that the program used bySCDC for screening and evaluation fails to adequately identify and classify thoseinmates suffering from serious mental illness.

B. A treatment program that involves more than segregation and closesupervision of m entally ill inmates.The treatment program at SCDC places heavy reliance on segregation anduse of physical force aga inst seriously mentally ill inmates.Mentally ill inmates are substantially overrepresented in SpecialManagem ent '[Jnits ("SMU") within SCDC. As of 2011, the percentage of inmatesdiagnosed with a serious mental illness in the SMU's were as follows: 27% at LeeCorrectional Institute; 42% at Lieber Correctional Institute; and 40o/o at PerryCorrectional Institute. Dr. Janet Woolery estimated that approximately 40 to 50o /oof the inmates she sees from the SM U's are dem onstrating active psychoticsymptoms. R ather than placing m entally ill inmates into treatmen t programs, itappears that they are merely placed in SMU's. This heavy reliance on SMU's raisesserious concerns for the Court. Risk factors and suicide rates increase while aninmate is in SMU. It is not uncomm on for an inmate in S MU to develop depressionand experience a d isturbance in eating and sleeping cycles. Moreover, evidence inthe case shows that the conditions of confinement in SMU's fall below what isacceptable for a twenty-first century correctional institute, with inmates "strippedout" for their own protection, naked and without blankets, in cells both extremelycold and inordinately filthy.Not only are mentally ill inmates overrepresented in SMU's, they also spendlong periods of time in the SMU's, and in som e instances this period of isolation inSMU has lasted several years. The evidence revealed that inmate RowlandDowling was confined in SMU for 2,565 consecutive days, from February 2001 toFebruary 2008.Mentally ill inmates also suffer from a disproportionate use of force. The Useof Force Chart from January 1, 2008 lists the thirty inmates who are mostfrequently subjected to the use of force. Twenty-six of the thirty inmates on the Useof Force Chart are o n the m ental health caseload. As to use of force events, therewere 602 such events for the twenty-six mentally ill inmates com pared with 68events for the rema ining four inmates. Lastly, inmates on crisis intervention ("CI")are not being assessed da ily for mental health purposes. As of the date of trial,SCDC policy only required that inmates in CI be seen M onday through Friday,excluding holidays, and this policy is often violated.

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A substantial contributing factor to the lack of an effective treatmentprogram is the limited involvement by psychiatrists in creating and administeringtreatment plans for mentally ill inmates. Psychiatrists at SCDC have noadministrative or policy-making duties, and there was evidence that they did notattend meetings to create and develop treatment plans. As the lead mental healthprofessionals in the mental health program, the Court finds psychiatrists must bemore directly involved in creating and developing treatment plans. Furthermore,deposition testimony of some psychiatrists revealed an alarming lack of knowledgeof policies and procedures at SCDC, the levels of care and criteria for referral to aparticular level of care, and the role of the counselor in the mental illness treatmentprocess. Dr. Poiletman did not know what the terms SMU and CI stood for -meaning Special Management Unit and Crisis Intervention, terms inextricably tiedto mentally ill inmates at SC DC. Likewise, Dr. Crawford could not describe thedistinction between an Intermediate Care services patient and an area patient. TheCourt finds these examples both illuminating and disturbing. For psychiatrists andother mental health staff at SCDC to provide effective services, they must have amore intimate knowledge of the processes and procedures vital to the mental healthservices system they are expected to direct.This Court finds that SCDC employees' excessive use of force againstmentally ill inmates and segregation o f mentally ill inmates in crisis as opposed totreatment creates a serious risk of harm to seriously mentally ill inmates.C. Employment of a sufficient number of trained mental healthprofessionals.

The Court finds that the mental health program at SCDC is substantiallyunderstaffed. This has a causa l effect for many insufficient aspects of the mentalhealth program and greatly inhibits SCDC's responsibility to provide effectiveservices to its mentally ill inmate population.At the time of this trial, psychiatric staff at SCDC was limited to 5.5 FTE. AtGilliam Psychiatric Hospital, there was 1.2 FTE for 62 patients, a 1:52 ratio. Dr.Patterson testified that a more appropriate ratio for an inpatient setting would be1:20. Likewise, the ratio for counselors at area mental health centers as ofFebruary 2011 is also problematic: 1:45 at Graham Correctional Institute; 1:54 atLee Correctional Institute; 1:75 at Lieber Correctional Institute; and 1:75 at PerryCorrectional Institute. In response to this information, Dr. Patterson indicated thata more appropriate ratio for counselors at the area mental health centers is 1:40. Intotal, Dr. Patterson recommended that SCDC employ an additional twenty (20)counselors and fourteen and one half (14.5) psychiatrists. The Court accords greatweight to Dr. Patterson's recommendations for staffing.The Court finds that inadequate mental health staffing at all levels withinSCDC represents a serious risk of harm to mentally ill inmates.

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D. Maintenance of accurate, complete, and confidential mental healthtreatment records.A treatment plan is intended to be a dynamic and fluid process thatcontinues on a regularly scheduled basis, supplemented by constant updates andrevisions. In order for such to be effective, treatment plans must be accurate,comp lete, readily accessible to professional staff, and confidential. During the trial,evidence was presented to the Court indicating that documentation andmaintenance of these records is poor. The treatment plans and automated medicalrecords ("AMR ") do not clearly state problems, objectives, goals, or even the staffresponsible.The importance of maintaining accurate and complete treatment records isvital to any medical services delivery system. For mentally ill inmates inparticular, treatment plans and AMR's :re critical for assessing progress as well asthe effect of medication and therapy. The evidence in this case shows that therecord keeping system for SC DC is outmoded, poorly maintained, and not readilyaccessible to all staff.The Court finds that SCDC's failure to maintain' accurate and completemental health treatment records represents a serious risk of harm to mentally illinmates. llil

E. Administration of psychotropie med ication on ly with appropriatesupervision and periodic evaluation.In evaluating this factor, some of the sa me concerns overlap with those of theprevious factor - maintenance of accurate, complete, and confidential mental healthtreatment plans. The Court, however, will note two further instances that raiseconcerns. First, in the medical records of m ental ly i l l inmates, nurses are requiredto sign their initials to confirm that m edication w as provided and a dministered. Attrial, various medical records were introduced indicating the absence of thoseinitials and absence of any record that medications were provided at all. Thisindicates that either the medication was not provided or that the nurses failed tomaintain accurate records. The second iiistance concerns the suicide of RobertHamb urg. Mr. Hamb urg's morning me dications had expired - specifically his anti-psychotic medicine, Geoden, which he was supposed to receive twice a day.Nevertheless, his counselor was still recording that he was compliant with hismedication - that he was receiving it in the mornings and evenings. Thus, Mr.Hamburg was only receiving half of his prescribed dosage of anti-psychoticmedication. Mr. Hamburg comm itted suicide on June 9, 2010 at Perry CorrectionalInstitute.Pill lines at m axiy institutions occur at 4:00 a .m., and mentally ill inmates areoften left to their own devices to timely awake, stand in line, and then take their

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med ication. The timing, press of business, and lack o f individual attention at thepill line lends itself to inmates failing to take psychotropic medications.This Cou rt finds that the failure to appropriately supervise, evaluate, anddispense psychotropic medications creates a serious risk of harm to mentally illinmates-F. A basic program to identify, treat, and supervise inmates at risk forsuicide.

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At trial, Dr. Patterson identified seven inmates at SCDC whose suicidedeaths from 2008 to 2011 were both foreseeable and preventable. In his opinion,two common factors contributed to these deaths. First, CI cells are located insegregation units, not in a medical setting, and thus lack sufficient medicalinteraction and treatment. Inmates in CI cells spend the entire day in those cells,and are held for long periods of time - typically one to two weeks, but sometimeslonger. As stated previously, the CI cells are cold and unsanitary, the inmates arestripped out, and often not given a mattress. In addition, most inmates in CI do notsee a psychiatrist, and interaction with a counselor is brief, limited, and notconfidential. Inmates in CI are not allowed to have group or individual therapy.Second, SC DC's policy does not require constant observation; rather, inmates in CIcells are checked on fifteen minute intervals. The evidence be fore the Courtcontained proven instances o f fabricated observation logs. These practices create asubstantial risk of serious medical harm to mentally ill inmates.

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{I I. REMEDY TO ADDRESS CO NSTITUTIONAL VIOLATIONS

In devising a remedy for the constitutional deficiencies at SCDC, the Court isrequired to balance two competing interests. First, it is not the role of this Court tomicromanage the daily administration of the mental health program at SCDC.Second, unde r the separation of powers doctrine, this Court should be constrainedand not usurp the authority and responsibility of other branches of government.Moreover, this decision comes in a time of economic recession and heavy scrutiny ofgovernmental expenditures. However, the Court is bound to uphold the SouthCarolina Constitution and protect the rights of the mentally ill inmates at SCDC.See Broton v. Plata, 131 S. Ct. 1910, 1928-29 (2011). Finally, the Court is convincedthat to view the evidence put forth in this case and then do nothing would be agreat miscarriage of justice.To address the constitutional deficiencies in the mental health system atSCDC, Plaintiffs have proposed a remedial plan comprised of three components.First, SCDC would be required to submit a written plan for remedying the systemicdeficiencies identified by the Court- Second, in creating this plan, SCDC must relyupon factors and guidelines identified by the Court, which the Court will thenreview and either approve or disapprove. Third, the Court will retain jurisdiction ofthis case and appoint expert monitors and/or a special master who will report4

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periodically to the Court. SCD C has raised o bjections to this plan, arguing that itconstitutes an impermissible burden shift and is violative of the separation ofpowers doctrine.The Court denies SCDC's objections. It would be highly impractical forPlaintiffs to identify and create a plan to implement change s to the mental healthsystem at SCD C. Rather, once the Co urt has ruled, SCDC is in the best position topropose steps and changes to its existing system. See Alexander S. U. B oyd, 876 F.Supp. 773, 80 4-04 (D.S.C. 1995 ). As a result, the Court adopts P laintiffs' proposalsand requires SCD C to subm it a written plan to the Court within one hundred eighty(180) days of the date of the final Order in this case. In executing this remedialplan to be sub mitted by SC DC, the Court will retain jurisdiction, but also intends toappoint a monitor who will report periodically to the Court. The Court will providethe parties, through motions, an opportunity to suggest the appropriateappointee(s) to oversee this process.In formulating specific factors and guidelines for SCDC's remedial plan, theCourt will again utilize the Ru.iz factors above, along with additional sub-factorsand components listed thereunder. In devising a plan to remedy the constitutionaldeficiencies identified by the C ourt, SCDC shall be directed in the Order to p reparea written plan that includes, at a minimum, the following:

A. The development of a systematie program for screening andevaluating inmates to more aecurately identify those in need ofmental health care.1.

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Develop and implement screening parameters and modalitiesthat will more accurately diagnose serious mental illness amongincoming inmates at R & E with the stated goal of increasing thenumber of inmates recognized as mentally ill and beingadmitted to the mental health program by a minimum of twopercentage points (14.9 % of the inmate population);The implementation of a formal qua lity management programunder which mental health screening practices are reviewed anddeficiencies identified in ongo ing SCDC audits of R&Ecounselors are corrected;Enforcement of SCDC policies relating to the timeliness ofassessment and treatment once an incoming inmate at R&E isdetermined to be mentally ill; and,Development of a program that regularly assesses inmateswithin the general population for evidence of developing mentalillness and provides timely access to mental health care.

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mentally ill inmates, and substantially improves/increases mentalhealth eare facilities within SCDC.1. Easier Access to Higher Levels of Care.1. Significantly increase the number of area mental healthinmates vis-a-vis outpatient mental health inmates andprovide su fficient facilities therefor;Significantly increase the number of male and femaleinmates receiving intermediate care services and providesufficient facilities therefor;Significantly increase the number of male and femaleinmates receiving inpatient psychiatric services, requiringthe substantial renovation and upgrade of GilliamPsychiatric Hospital, or its demolition for construction of a

new facility;Significantly increase clinical staffing at all levels to providemore mental hea lth services at all levels of care; and,The implementation of a formal quality managementprogram under which denial of access to higher levels ofmental care is reviewed.

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2. Segregation.i. Provide access for segregated inmates to group andindividual therapy services;Provide out-of-cell time for seg regated m entally illinmates;Document timeliness of sessions for segregated inmates withpsychiatrists, psychiatric nurse practitioners, and mentalhealth counselors and timely review of such documentation;Provide access for segregated inmates to higher levels ofmental health services when needed;The collection of data and issuance of quarterly reportsidentifying the percentage of mentally ill and non-mentallyill inmates in segregation compared to the percentage of eachgroup in the total prison population with the stated goal ofsubstantially decreasing segregation of mentally ill inmatesand substantially decreasing the average length of stay insegregation for men tally ill inmates.Undertake significant, documented improvement in thecleanliness and temperature of segregation cells; and,The implementation of a formal quality managementprogram under which segregation practices and conditionsare reviewed.

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Development and implementation of a master plan toeliminate the disproportionate use of force, including pepperspray and the restraint chair, against inmates with mentalillness;The p lan will further require that all instruments o f force,(e.g, chemical agents and restraint chairs) be employed in amanner fully consistent with m anufacturer's instructions,and track such use in a way to enforce such compliance;Prohibit the use of restraints in the crucifix or other positionsthat do not conform to generally accepted correctionalstandards and enforce compliance;Prohibit use of restraints for pre-determined periods of timeand for longer than necessary to gain control, and track suchuse to enforce compliance;The collection of data and issuance of quarterly reportsidentifying the length of time a nd m ental health status ofinmates placed in restraint chairs;Prohibit the use of crowd control canisters, such as MK-9, inindividual cells;Notification to clinical counselors prior to the use of plannedforce to request assistance in avoiding the necessity of suchforce and managing the conduct of inmates with mentalillness;Collection of data and issuance of quarterly reportsconcerning the use of force incidents against mentally ill andnon-mentally ill inmates; andThe development of a formal quality management programunder which use of force incidents involving mentally illinmates are reviewed.

C. Employment of a sufficient number of trained mental healthprofessionals.1.

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111.

Increase clinical staffing ratios at all levels to be moreconsistent with guidelines recommended by the Am ericanPsychiatric Association, the American CorrectionalAssociation, and/or the court-appointed monitor;Increase the involvement of appropriate SCDC mental healthclinicians in treatment planning and treatment teams;Develop a plan to decrease vacancy rates of clinical staffpositions which may include the hiring of a recruiter,increase in pay grades to more competitive rates, anddecreased workloads; morei

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?V.

V.

Vl

Require app ropriate credentialing of m ental healthcounselors;Develop a remedial program with provisions for dismissal ofclinical staff who repetitively fail audits; and,Implement a formal quality management program underwhich clinical staff are reviewed.

D. Maintenance of accurate, complete, and confidential mental healthtreatment records.1.

11.

Develop a program that dramatically improves SCDC'sability to store and retrieve, on a reasonably expedited basis:a. Names of FTE clinicians who provide mental health8erVlCe8;b. Inmates transferred for ICS and inpatient services;c. Segregation and crisis intervention logs;d. Records related to any mental health program or unit(including behavior management or self-injuriousbehavior programs);Use of force documentation and videotapes;Quarterly reports reflecting total use of force incidentsagainst mentally ill and non-mentally ill inmates byinstitution ;

g. Quarterly reports refiecting total and average lengthsof stay in segregation and CI for mentally ill and non-mentally in inmates by segregation status and byinstitution;h. Quality management documents; and,i. Medical, medication administration, and disciplinaryrecords.The development of a formal quality management programunder which the mental health management informationsystem is annually reviewed and upgraded as needed.

e.f.

l

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i

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E. Administration of psychotropic medication only with appropriatesupervision and periodic evaluation. iliI1.

11.

111.

IV

Improve the quality of AMR documentation;Require a higher degree of accountability for cliniciansresponsible for completing and monitoring AMR's;Review the reasonableness of times scheduled for pill lines;and,Develop a formal quality management program under whichmedication administration records a re reviewed.

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F. A basic program to identify, treat, and supervise inmates at risk forsuicide.1.

11.

111.

IV

V.Vl

Vll

Locate all CI cells in a healthcare setting;Prohibit any use for CI purposes of alternative spaces guch asshower stalls, rec cages, holding cells, and interview booths;Implement the practice of continuous observation of suicidalinmates;Provide clean, suicide-resistant clothing, blankets, andmattresses to inmates in CI;Increase access to showers for CI inmates;Provide access to confidential meetings with mental hea lthcounselors, psychiatrists, and psychiatric nurse practitionersfor CI inmates; and,Implement a formal quality management program underwhich crisis intervention practices are reviewed- i

it

INSTRUCTIONS FOR PREPARATION OF ORDERAttorney Andrews is requested to prepare an Order within sixty (60) days ofthe date of this letter detailing the decision stated herein and forward the same toopposing counsel. If additional time is needed, please advise this office. Attorneysfor Defendant are not asked to agree or consent to this Order, but are requested to

review it for mistake of fact or misstatement of their party's position. Thereafter,Attorney Andrews is asked to forward the finalized Order via email(JBaxleyl4sccourts.org) in Microsoft Word format to m y office for signature, whichwill then be finalized, signed, and returned to him for filing and formal service onthe parties.The specific items contained in Section Two to be included in the remedialplan are not intended to be an exhaustive list. Plaintiffs' counsel may add anyitems referred to in the evidence and the Court will subsequently review suchinclusions before the final Order is signed.While not contained in detail in this letter, Plaintiffs' counsel is furtherrequested to discuss within the Order the Court's authority to direct an agency ofthe Executive branch of go vernment to take an y particular action and the Court'sprerogatives under the Separation of Powers doctrine.For purposes of illustration, Plaintiffs' counsel is also requested to includewithin the Order ten (10) specific examples from the evidence of this case where aseriously mentally ill inmate has suffered mistreatment, substantial injury,death due to deficiencies in the SCDC mental health services system.Due to the complexity of the requested proposed order, it is anticipated thatcounsel will need further communications and perhaps gu idance from the Court asthe Order is prepared. In that event, counsel is requested to put such

or

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communications in writing and copy opposing counsel to avoid ex-partecommunications.This has been a complex case, botb factually and legally, and I am g ratefulfor the professionalism of all attorneys in advocating for their clients. It has beenmy pleasure to be associated with such capable and learned counsel.

lll

Sincerely yours,liiil

J. &@c0ael Naxley?/ilxs

cc: Honorable Jeanette W. McBride (for filing)

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Exhibit s

Adam J. Bi ere


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From:Sent:To:

Cc:Subject:

Baxley, J. Michael Law Clerk (James H. Scruggs, III) Tuesday, August 27, 2013 5:18 PMDan Wes tbrook; Daniel C. Plyler, [email protected]; Andrew Lindemann;William H. Davidson II; Kenneth P. Woodington; Adam J. BruyereStuart Andrews: Tammie PopeRE: M ental health prison Iitigation

Counsel,It has been brought to our attention that in their Fifth Amended Complaint, the Plaintiffs dropped their claim under Article12, 2. Therefore, to that extent, the Court's decision letter is amended to delete those references to the Plaintiff' s priorclaim under Article 12, 2. The Court's decision as to Plaintiff's claim under Article I, 15 is unaffected. Plaintiffs arestill requested to provide an Order within sixty (60) days of the date of the decision letter which details the decision of theCourt, excepting those portions, however, that refer solely to the Plaintiffs' previous claim under Article 12, 2. We areaware that the evidence in the two constitutional claims is substantially similar. If I can be of any further assistance,please do not hesitate to contact me.Best regards,Jamie ScruggsJames H. Scruggs, IIILaw Clerk to the Honorable J. Michael BaxleyCircuit Court of the Fourth Judicial Circuit531 E. Carolina AvenueHartsville, South Carolina 29550Telephone: 843.383.4114Fax: [email protected]

From: Dan Westbrook jmailto:[email protected]]Sent: Tuesday, August 27, 2013 1:50 PMTo: Baxley, J. Michael Law Clerk (James H. Scruggs, III); ?I- aw.com; [email protected]: Stuart Andrews; Tammie PopeSubject: RE: Mental health prison IitigationJamie, here"s another one l mistakenly sent directly to the judge.

From: Dan WestbrookSent: Monday, August 26, 2013 11:13 AMTo: 'Baxley, J. Michael'; '[email protected]'; '[email protected]'Cc: Stuart Andrews; Tammie PopeSubject: RE: Mental health prison IitigationJamie, l forgot to add something to my previous note below. It appears from the decision letter that Judge Baxley ruledin Plaintiffs" favor on our minimally adequate (Article 12, section 2) claim, as well as on our cruel and unusualpunishment ( Article 1, section 15) claim. In our 5fh Amended Complaint, however, we dropped the Article 12, section 2claim, so l wanted to call that to the judge's attention.

From: Dan WestbrookSent: Monday, August 26, 2013 10:51 AM


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To: 'Baxley, J. Michael'; ?dml-Iaw.com; [email protected]: RE: Mental health prison IitigationJamie, can you tell us the status of the trial transcript? It would be useful to have in preparing the final order. Thanks,Dan

From: Baxley, J. Michael [mailto:[email protected]]Sent: Friday, August 23, 2013 5:04 PMTo: Dan Westbrook; [email protected]; [email protected]; [email protected]: Mental health prison IitigationGentlemen:

Attached please find an electronic copy of the de cision letter in the T.R., P.R., et al v. South Carolina Departm ent ofCorrections case. The original Ietter will be sent via u.s. mail today. This communication is not intended to effectservice upon you and is provided solely for your information. Thank you for your patience while this case has beenunder advisement.Mike Baxley

Confidentiality NoticeThis message is intended exclusively for the individual or entity to which it is addressed. This com municationmay con tain information that is proprietary, privileged, confidential or otherwise legally exempt fromdisclosure.

If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate thismessage or any part of it. If you have received this message in error, please notify the sender immediately eitherby phone (800-237-2000) or reply to this e-mail and delete all copies of this message.To ensure compliance with the requirements imposed by the IRS, we inform you that any U.S. federal taxadvice contained in this communication (including the attachments) is not intended or written to be used, for thepurpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting, marketing orrecommending to another party any transaction or tax-related matter[s]. To provide you with a communicationthat could be used to avoid penalties under the Internal Revenue Code will necessarily entail additionalinvestigations, analysis and conclusions on our part.

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COUNTY OF RICHLAND

)))

IN THE COURT OF COMMON PLEAS

)))))))))

South Carolina Department of Corrections; )and William R. Byars, Jr., as Director of the )South Carolina Department of Corrections, )

)))

T.R., P.R., K.W., and A.M., on behalf ofthemselves and others similarly situated;and Protection and Advocacy for Peoplewith Disabilities, Inc.,

V.

Defendants.

Plaintiffs,

Civil Action No. 2005-CP-40-02925

CERTIFICATE OF SERVICE

The undersigned employee of Davidson Lindemann, P.A., attorneys for the Defendants,does hereby certify that service of the Notice of Motion and Motion to Alter or Amend OrderPursuant to Rule 52(b), and Rule 59(e), SCRCP in the above-captioned matter was made uponthe Honorable J. Michael Baxley and all counsel of record by email and by placing copies in theUnited States Mail, first class postage prepaid, at the below listed addresses clearly indicated on saidenvelopes this the 21st day of January 2014:

The Honorable J. Michael BaxleyCircuit Court Judge

531 East Carolina AvenueHartsville, South Carolina 29550-4311

Email: JBaxleyJ(ED,sccourts. org; JBaxlevLC@sccourts org

Daniel J. Westbrook EsquireStuart M. Andrews Jr. EsquireNelson, Mullins, Riley Scarborough, LLP

Post Office Box 11070Columbia, South Carolina 29211

Email: dan. westbrook@,nelsonmuilins. comEmail: stuart. andrews@nelsonmullins. com

U m'Q

Documents

LTR-01-21-14 (filing)(with enclosure) (00572885-2)