Tag Archives: BOP medical care

Shrinks Do A Runner And Other BOP Headaches – Update for February 3, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ROUGH WEEK FOR THE BOP

Last week began with The Marshall Project reporting that as of last spring, “just one in five federal prisons had a fully staffed psychology department… “[d]ozens of federal prisons nationwide had fewer than half the psychologists needed[and] at more than 10 prisons, there was one psychologist, or none.”

“Those are catastrophic numbers,” retired Bureau of Prisons psychologist Jill Roth, who served as national coordinator for the BOP’s prison rape elimination program until 2021, told TMP.  The report said that the BOP’s psychology program “used to be the envy of other correctional systems, according to psychologists who worked for the agency for decades. ‘BOP was a place psychologists were excited to work,’ Roth said. ‘It has changed.’”

TMP recounted that one BOP psychologist said he left a West Coast prison in May after he was the only staff psychologist for more than 700 people, saying that he feared that the care he could provide under those circumstances did not meet basic professional standards. “At some point it becomes unethical to continue to participate in that,” he was quoted as saying. “Can we provide this group of humans the care they’re entitled to? The answer is no. One person cannot ethically do that.”

The same day, the Dept of Justice Office of Inspector General issued its annual Top Management and Performance Challenges report to Congress, noting that the BOP “continues to face persistent challenges, most critically those presented by staffing shortages, deteriorating infrastructure, and the introduction of contraband. In recent years, deficiencies in the provision of healthcare to inmates and sexual abuse of inmates by BOP staff have emerged as additional significant challenges.”

Writing in Forbes, Walter Pavlo said, “Over the past two decades, the OIG has issued more than 100 reports documenting systemic problems at the BOP, and many of the same deficiencies appear year after year… Staffing shortages, deteriorating facilities, contraband, misconduct, and weak oversight have become familiar themes in the OIG’s annual Top Management and Performance Challenges reports. The latest report reiterates what oversight bodies have said repeatedly: the BOP’s problems are systemic, long-standing, and largely unresolved.”

The Government Accountability Office piled on the next day, reporting that for its study period of March through December 2024, the BOP has been failing in its First Step Act obligation to conduct needs assessments within required time frames, to use uniform methods to record when inmates decline to participate in a recommended program, and to keep program participation data. Most concerning, GAO found that as of the ends of 2024, the BOP had failed to apply all FSA credits to 70% of eligible inmates, and 54% of inmates received no prerelease custody credit for their earned FSA time.

GAO found that BOP generally applied all time credits toward supervised release but not for prerelease custody.

The report noted that BOP had implemented new planning tools in 2024 and 2025 to help staff anticipate upcoming transfers to prerelease custody and ensure incarcerated people receive their FSA time credits, and that GAO is currently examining BOP’s efforts to forecast capacity needs and provide sufficient halfway house and home confinement resources.

The Dept of Justice was required to issue annual FSA reports to Congress for five years after the Act passed. The last one was issued in June 2024. GAO recommended that Congress amend the law to require continued reports, because “without such information, Congress may be hindered in its decision making regarding the FSA.”

The Marshall Project, Amid ‘Catastrophic’ Shortage, Psychologists Flee Federal Prisons in Droves (January 26, 2026)

DOJ Inspector General, Top Management and Performance Challenges Facing the Department of Justice | 2025 (January 26, 2026) 

Forbes, The Bureau Of Prisons: When OIG Warnings Meet GAO Reality (January 28, 2026)

GAO, Federal Prisons: Improvements Needed to the System Used to Assess and Mitigate Incarcerated People’s Recidivism Risk, GAO-26-107268 (January 27, 2026)

~ Thomas L. Root

Ho-hum SCOTUS Civil Procedure Decision Strikes Blow for “Majestic Equality” – Update for January 23, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NOW SERVING: ‘BERK CHOY’ IN ERIE SAUCE

Jacques Anatole Francois Thibault wrote in Le Lys Rouge (what I otherwise thought was a dreadful novel when I was forced to read it as a callow youth) that

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Like their noncustodial brethren, Federal prisoners who suffer from ham-handed medical care while in Bureau of Prisons custody have always been able to sue for medical malpractice. They must do so through the Federal Tort Claims Act (FTCA), which provides a legal framework for suing the United States in what otherwise is a plain-vanilla state law med-mal suit.

Most states have adopted in one form or another (by statute or in rules of civil proceeding) a requirement that a med-mal complaint must be supported by an “affidavit of merit,” a statement under oath by a medical expert that attests to the merit of the claim. The reason for such a requirement is to winnow out nonsensical malpractice claims early on to decrease the burden on the courts and the inconvenience to defendants and the insurance companies who defend them.

Sounds like a great idea! What could possibly go wrong?

Just this: Hiring a medical expert (almost always a licensed physician who also works as an expert witness) to review a med-mal complaint requires an upfront outlay of somewhere north of $5,000 to get the medical file read and the affidavit signed. Especially given the unforgiving statute of limitations binding FTCA plaintiffs (six months from denial of the administrative claim to filing the suit), these state “affidavit of merit” requirements shut down med-mal remedies for all but the wealthiest inmate filers.

The rich have to hire experts out of their pocket change if they want to bring an FTCA action. Seems only fair that the impoverished be required to do so as well. Ah, the law’s “majestic equality.”

Normally, a med-mal victim finds a lawyer (usually one who advertises on late-night TV) to take the case and front costs such as the expert’s fee. But prisoners do not, because their medical costs have been paid by the governments and juries don’t care much that prisoners – whose living costs are already being paid by the government – suffered some pain and inconvenience because of medical lunacy. Generally speaking, if a plaintiff’s lawyer cannot see $250,000 or more in likely damages, he won’t take the case no matter what his freeway billboard might say.

Add to that the fact that the government already has a stable of lawyers, so legal costs are not a factor in figuring out whether to settle, and the inmate has a case that attracting a lawyer to take it on for a percentage is a very tall order.

Over the years, I have worked on any number of unsuccessful arguments to district courts and courts of appeal that state laws and rules mandating “affidavits of merit” do not bind federal courts. Back in the day, when I was studying law by candlelight, we 1Ls pored over Erie Railroad Co. v. Tompkins, a civil procedure classic in which the Supreme Court ruled that in a civil case brought in federal court (where no federal statute applied), courts were to apply federal rules of procedure but state common law. Erie is a little more complex than that, but you get the gist: a med-mal plaintiff must use state med-mal law in proving that the doctor screwed up, but the rules governing how to proceed – from everything from what motions may be brought, how discovery is conducted, and how the defendant gets served – depends on the Federal Rules of Civil Procedure.

Harold Berk sued Dr. Wilson Choy in federal court for medical malpractice under Delaware state law. Section 6853 of Title 18, Delaware Code, required Harry to accompany his complaint with an affidavit of merit “signed by an expert witness, as defined in § 6854 of this title, and accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant.”  Harry claimed that Erie made § 6853 unenforceable in federal court because it is displaced by the Federal Rules of Civil Procedure. He lost in the district court and 3rd Circuit.

This week, however, the Supreme Court handed Harry a 9-0 win, turning Delaware’s statute into chopped ‘Berk Choy.”

The Court found the analysis to be simple. If a Federal rule governs a question arising in a civil action, it applies unless it exceeds statutory authorization or Congress’s rulemaking power. Here, the Court ruled, FRCivP 8 answers the question:  Rule 8 prescribes the information a plaintiff must present about the merits of his claim at the outset of litigation: “a short and plain statement of the claim showing that [he] is entitled to relief.” By requiring no more than a statement of the claim, the Court held, Rule 8 establishes “implicitly, but with unmistakable clarity that evidence of the claim is not required.”

Rule 12 reinforces the point, Justice Amy Coney Barrett wrote for the Court: “By providing only one ground for dismissal based on the merits — ‘failure to state a claim upon which relief can be granted,’ Rule 12(b)(6) — and prohibiting courts from considering “matters outside the pleadings” when evaluating whether a plaintiff has stated a claim,” the federal procedural rules ask only whether the complaint’s factual allegations, if taken as true, “state a claim to relief that is plausible on its face.”

Justice Barrett observed that the Supreme Court “has consistently rejected efforts by lower federal courts to require more information than Rule 8 requires. Delaware’s law and Rule 8 thus give different answers to the question whether Berk’s complaint can be dismissed as insufficient because it was unaccompanied by an affidavit.”

For federal prisoners and even impecunious pro se filers, this ruling is significant. They may still face a mountain to climb in proving their case, but at least they’ve crossed the foothills by getting on file without paying an enormous upfront cost.

Writing in SCOTUSBlog, Ronald Mann said that Berk v. Choy

is interesting in its own way because it draws on a vision of the federal rules that goes far beyond the text. Barrett easily could have written an opinion saying there is no direct conflict between the rules and Delaware law. In truth, the conflict is between Delaware law and the grand conception of what the federal rules are designed to accomplish: a system where the courthouse doors are wide open upon a simple statement of a claim. For its paean to that system, I suspect this opinion will be widely noted.

Berk v. Choy, Case No. 24-440, 2026 US LEXIS 497 (January 20, 2026)

Erie Railroad. Co. v. Tompkins, 304 US 64 (1938)

SCOTUSBlog.com, Justices reject state limits on malpractice actions for cases in federal court (January 21, 2026)

~ Thomas L. Root

Inspector General Faults BOP Treatment of Dying Inmate – Update for January 13, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

REST IN PEACE, FRED BARDELL

Do you remember Frederick Bardell?

You should not forget him.

Mr. Bardell was a BOP prisoner whose medical and release mistreatment by the Federal Bureau of Prisons were acts, as described by U.S. District Court Judge Roy Dalton (Middle District of Florida) in an October 2022 Order,  “indifferent to… human dignity.”

Fred was housed at FCI Seagoville when he developed an intestinal mass that turned into metastatic colon cancer. Although a BOP medical expert determined that Fred “ha[d] a high likelihood” of having colon cancer “with likely metastasis to the liver,” the BOP did nothing.

An outside specialist said later that if Fred had gotten prompt treatment when the mass was first found, he would have had a 71% chance of recovery. But prompt treatment is simply not how BOP healthcare rolls.

As LISA reported at the time, Fred’s first compassionate release motion (filed under 18 USC § 3582(c)(1)(A)) was denied after the BOP falsely assured the court that Fred could receive adequate care in custody. Judge Dalton later wrote, “As we now know, it was not true that Mr. Bardell could receive adequate care in custody. And, regrettably, his condition was indeed terminal.”

Fred’s second compassionate release motion filed three months later – supported by an affidavit from an oncologist that Fred was likely dying of cancer – was granted. The Court ordered him released as soon as the Probation Office and Fred’s attorney worked out a release plan.

The BOP didn’t wait for a release plan. After forcing Fred’s parents to pay $500 for an airline ticket, the BOP dumped Fred – who by then was “skin and bones, wheelchair dependent, and bladder and bowel incontinent” – on the airport curb without even a wheelchair. Only with the aid of strangers was Fred able to get on the plane, change planes in Atlanta, and arrive, his clothes soaked with blood and feces, in Jacksonville. His parents took him straight to a hospital, where he died nine days later.

Judge Dalton was outraged, holding the Seagoville warden in contempt, not for the negligent medical care but for the heartless way the prison dumped Fred at the airport:

The BOP as an institution and Warden Zook as an individual should be deeply ashamed of the circumstances surrounding the last stages of Mr. Bardell’s incarceration and indeed his life. No individual who is incarcerated by order of the Court should be stripped of his right to simple human dignity as a consequence.

The judge found that the BOP’s actions were “inconsistent with the moral values of a civilized society and unworthy of the Department of Justice of the United States of America.”

A special master appointed by Judge Dalton confirmed that prison officials allowed an incarcerated man to waste away from highly treatable cancer and misrepresented key facts about his health care to a court. After that, the judge referred the matter to the DOJ Office of the Inspector General.

Last week, the Inspector General concluded that “serious failures by multiple levels of staff” at Seagoville led to Fred’s death from colon cancer. The OIG “identified job performance and management failures at multiple levels within FCI Seagoville, from line staff through the Warden. We also identified problems with the BOP’s medical care of inmates, handling of compassionate release requests due to medical circumstances, and handling of compassionate release orders.”

The OIG found that severe understaffing led to six months of delays in scheduling a colonoscopy for Fred, despite symptoms, tests, and scans showing that he likely had advanced colon cancer. As his condition worsened, staff denied his requests for a compassionate release without fully reviewing his medical records and then misrepresented the adequacy of treatment he was receiving to a federal judge. And when that judge finally ordered Bardell’s release, no fewer than nine BOP officials and employees failed to read the court’s order and thus violated the Judge’s directive to wait until a release plan had been approved. The Report said, “The hastiness of the BOP’s handling of Bardell’s release was extremely concerning because the BOP did not take measures to ensure his safe and compassionate transport in light of his medical condition.”

The OIG also said that “the BOP’s handling of Bardell’s request for a reduction in sentence [RIS] was deficient, and the government’s related representations to the Court that there was ‘no indication’ that Bardell could not ‘receive adequate care in custody’ were inconsistent with what we learned during the course of our investigation and review.”

The canard that a compassionate release is unnecessary because there is ‘no indication’ that an inmate cannot ‘receive adequate care in custody’ is one common to government oppositions to medical-condition compassionate release RIS requests. The OIG tears the fig leaf from these representations. In Fred’s case, the Inspector General’s report found,

that the government’s inaccurate representations were the result of the government’s reliance on the BOP’s RIS decision, which we found to be based on a seriously deficient process within the BOP, and [Assistant United States Attorney Emily C. L.] Chang’s honest, although nonexpert, understanding of the limited records provided by the BOP. While we believe that it would have been prudent for Chang to consult with BOP medical professionals, other BOP employees, or other medical experts to better understand the BOP medical records, Bardell’s medical condition, and the BOP’s ability to care for him, we noted that Department procedures in place at the time did not require her to speak with such individuals.

‘It’s so because we say it’s so,’ the BOP says in an ipse dixit run wild…

Those familiar with litigation involving BOP conduct are all too aware of the government’s unquestioning reliance on the Bureau’s ipse dixit pronouncements. Whether the OIG’s implicit doubt that doing so is appropriate will change anything is probably unlikely.

DOJ OIG, Investigation and Review of the Federal Bureau of Prisons’ Conditions of Confinement and Medical Treatment of Frederick Mervin Bardell and Related Representations to the Court, Upon Referral by Senior U.S. District Judge Roy B. Dalton, Jr. (January 6, 2026)

Reason, Inspector General Report Finds Serious Failures Led to an Inmate Wasting Away From Treatable Cancer (January 6, 2026)

New York Times, Judge Holds Prison Officials in Contempt for Treatment of Terminally Ill Inmate (October 13, 2022)

LISA, BOP Mistreatment of Inmate Dying of Cancer Sparks Outrage (October 17, 2002)

~ Thomas L. Root

Beck v. Choy May Be Supreme Court “Sleeper” Case for Inmate Healthcare Rights – Update for October 10, 2025

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BORING… UNTIL IT’S NOT

The Supreme Court heard oral argument in a case that most would think makes melba toast exciting by comparison.  But it’s a sleeper, a question of boring civil procedure that has major importance to federal inmates seeking to hold the Bureau of Prisons accountable for healthcare malpractice.

When prisoners receive negligent healthcare, many start planning to bring an 8th Amendment claim for deliberate indifference to serious medical needs.  However, proving that ham-handed medical care was inflicted deliberately is hard. Add to that the fact that since the Supreme Court’s Egbert v. Boule decision in 2022, bringing any federal constitutional claim seeking money damages – a so-called Bivens action – is just about impossible.

Impossible and unnecessary, because healthcare negligence is medical malpractice, and medical malpractice is negligence.  A prisoner can easily bring a negligence action against federal officers or employees under the Federal Tort Claims Act (explainer here).  Proving negligence is much easier than proving deliberate indifference. And, face it, most of the lousy healthcare in the BOP system is the result of negligence rather than a deliberate design to inflict cruelty on inmates. As Hanlon’s Razor cautions us, “Never attribute to malice that which is adequately explained by stupidity.”

There is a catch, however. When a prisoner brings a malpractice suit, he or she must do so in the state where the negligence occurred. The suit is judged according to state malpractice law, although it is brought in federal court. And most states have rules or statutes that require the plaintiff bringing the lawsuit to accompany his or her complaint with an affidavit from an expert that sets out the standard of care in the state and the expert’s belief that the defendant BOP doc or nurse failed to live up to it.

These are typically called “affidavits of merit,” and they are required in order to discourage frivolous lawsuits. They’re tough for inmates, however, even those with strong cases, because no expert is going to provide such an affidavit unless hired. The last time I hired one for a prisoner, it cost $5,000 (and that was eight years ago). Most inmates just don’t have that kind of money lying around.

The affidavit of merit rule has wiped out thousands of inmate FTCA suits over the years, making it impossible for them to get past the complaint stage to where they can engage in discovery (and maybe obtain a settlement). I have not been alone in arguing to courts that the law requires applying federal rules of procedure but state laws governing the substantive issue of whether malpractice has occurred.  This holding, as first-year law students can recite in their sleep, is Erie Railroad Co. v Tompkins.

Erie Railroad Co. v. Tompkins is a landmark Supreme Court decision in which the Court held that the United States does not have a general federal common law. Instead, while federal courts may follow federal procedural rules – such as the Federal Rules of Civil Procedure – they must apply state substantive law, not federal law, to lawsuits that do not involve federal questions. Most American lawyers and legal scholars regard Erie as one of the most important decisions in U.S. Supreme Court history, a decision that has been described as “go[ing] to the heart” of the American system of federalism.

The issue of whether state laws requiring an affidavit of merit with a medical malpractice complaint are substantive or procedural has now reached the Supreme Court. Last Monday, the Court heard argument in Berk v. Choy, a case that asks whether the Delaware state affidavit of merit requirement is a procedural requirement – in which case it does not apply in a federal court FTCA suit – or a substantive requirement that federal courts have to honor.

At the argument, some of the Justices viewed the requirements as “unacceptably hostile to the central conception of the federal trial system,” according to SCOTUSBlog:

Justice Elena Kagan led that group, drawing on a big-picture conception of the Federal Rules of Civil Procedure doubtless influenced by her decades teaching about the subject as a professor. For Kagan, the Delaware rules fly in the face of “the entire thrust of the Federal Rules,” which were “meant to establish a notice pleading system where all you had to do was say: ‘Here I am, here’s my claim, I’m going to be seeking damages, the end,’ and everything else was supposed to happen later in the normal course of things.”

Justice Ketanji Brown Jackson, for example, saw Delaware’s rule as hostile to the federal system: “[W]e have this Delaware law saying what is necessary to file or initiate a malpractice lawsuit as a matter of procedure. You have to have this separate [affidavit]. Notably, it’s not evidence. It is just what is a necessary step to initiate this lawsuit. And under federal law, no such thing is required. The federal law says that the action commences by filing a complaint with the court.”

Justice Sonia Sotomayor pointed to the requirements for filing an answer to a complaint: “The Federal Rules require that an answer be served in 20 days; the Delaware rule says the answer doesn’t have to be served until the affidavit’s filed.”

The defendant hospital argued that the Court shouldn’t focus on details like those cited by Jackson and Sotomayor, contending that there was no reason “that a federal court must ignore the entirety of a state statute if any part of it might conflict with a federal rule in some case.”

Several justices recognized that such an approach would ask SCOTUS to pick and choose among the various pieces of the Delaware statute.  Justice Neil Gorsuch said, “You are cracking and extracting… some things from the Delaware rule that you would apply in federal court and other things that you wouldn’t… [W]e’re creating this Frankenstein of a statute, right? We’re taking bits and pieces and adapting it, but what authority does a federal court have to rewrite Delaware law in that fashion?” 

SCOTUSBlog writer Ronald Mann said that it was difficult to determine from the argument how the Court would rule. “[I]t is safe to say that several justices will reject Delaware’s procedures, and hard to believe that Kagan won’t write something, but not at all clear what side the court, as a whole, will favor.”

A ruling invalidating the affidavit of merit requirement would be a major victory for inmate FTCA filers.

Berk v. Choy, Case No 24-440 (argued October 6, 2025)

SCOTUSBlog.com, Justices debate state limits on malpractice actions for cases in federal court (October 7, 2025)

~ Thomas L. Root

A Pair and a Half of Shorts – Update for May 30, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, some shorts… just in time for warm summer weather.

shorts250530

SUMMER’S HERE – TIME FOR SOME SHORTS

Shocking News: BOP Healthcare Found Deficient – A report issued last week by the Dept of Justice Inspector General found that the BOP has failed to screen over a third of at-risk inmates for colorectal cancer (CRC). Between low screening offers and inmate refusals, less than half of average-risk inmates had a completed annual CRC screening.

healthbareminimum220603What’s more, out of a sample of 327 inmates, the IG found that around 10% had no documented follow-up after testing positive for CRC. Also, the Report found, the BOP lacked timeliness metrics for access to a colonoscopy for inmates with a positive CRC screening. The IG reported that “inmates in our sample waited an average of 8 months between a positive CRC screening and a colonoscopy.”

During the period covered by the Report, there were about 38,000 federal inmates who fell in the age range and “average risk” level for CRC. About 13,600 of them were not offered a screening, according to the Report.

BOP Director William K. Marshall III took time from being excited about a billion-dollar rebuild of Alcatraz (see below) to blame “longstanding staffing issues” for compromising efforts to screen inmates for colorectal cancer in certain facilities.

DOJ Inspector General, Evaluation of the Federal Bureau of Prisons’ Colorectal Cancer Screening Practices for Inmates and Its Clinical Follow-up on Screenings (Report 25-057, May 20, 2025)

Washington Post, Prisons bureau failed to screen inmates for colorectal cancer, watchdog says (May 20, 2025)

shorts250530

Sentencing Commission Releases 922(g) Data: About 7,500 people are convicted every year for 18 USC § 922(g) offenses, the US Sentencing Commission reported last week.

funwithnumbers170511The USSC said men accounted for 98% of all convictions, with 58% of them being black, 21% white and 17% Hispanic. The average age for defendants at conviction was 36 years old.

The defendants were overwhelmingly US citizens (95%). About 24% were Criminal History Category III and another 24% fell into Criminal History VI (the highest category).

USSC, Section 922(g) firearm offenses (May 22, 2025)

shorts250530

BOP Director Calls Rebuilding Alcatraz “Exciting Opportunity”: BOP Director William K. Marshall III, who has less than $200 million in his FY 2025 budget to make $3 billion in infrastructure repairs to existing prisons, told Fox News a week ago that his team is actively exploring the possibility of reopening Alcatraz, the 330-bed penitentiary on an island in San Francisco Bay.

excited250530Marshall called the project – a late-night idea President Trump hatched late on his inaptly-named “Truth Social” site a month ago – an “exciting opportunity” and one that aligns with the Trump administration’s law-and-order priorities.

Last week, KTVU-TV reported that estimates to make the repairs needed to reopen Alcatraz as a prison are close to $1 billion, plus another $40 million to $100 million a year in maintenance.

Corrections1, BOP director: Reopening Alcatraz is an ‘exciting opportunity’ (May 23, 2025)

KTVU, Bureau of Prisons director ‘excited’ about reopening Alcatraz as max-security prison (May 23, 2025)

– Thomas L. Root

BOP Medicine Has Another ‘Pants On Fire Moment’ in Brooklyn Courtroom – Update for May 16, 2024

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LIAR, LIAR

liar151213A judge last week ordered the MDC Brooklyn medical director to appear in court to explain why the BOP didn’t give an inmate all his medication after an emergency appendectomy and then apparently lied to the man’s lawyers that he had gotten all of the required doses (and then for good measure, threw him in the SHU for spurious reasons).

US District Court Judge LaShann DeArcy Hall set a hearing for May 23rd after she grilled a BOP attorney during a status conference last week, repeatedly asking which BOP official “lied” that a detainee was given all five days of his antibiotic regimen. The medicine had been ordered by outside surgeons after the pretrial inmate received an emergency appendectomy that almost didn’t happen.

liar170209The order came after the detainee’s lawyers told the Court that their client’s “appendix may well have ruptured because MDC staff ignored his initial complaints; he was forced to recover from surgery without the aid of painkillers; and he is now being deprived of his antibiotics, which he must finish to avoid potential infection. Further, it appears that [the detainee] was sent to the SHU in retaliation for his reasonable demands for his medication and efforts to get counsel to assist him, and that the MDC revised the SHU ticket after the fact to justify its actions.”

NY Daily News, Judge Demands Answers From Brooklyn Federal Jail Officials Over Inmates Medical Woes (May 6, 2024)

Emergency Motion (Dkt. 330), United States v. Ricketts, Case No 22-cr-106 (EDNY)

– Thomas L. Root

Court Doubts BOP Medical Care Standards – Update for November 2, 2023

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‘WE ARE STILL HUMAN’: CARSWELL MEDICAL CARE ON TRIAL IN SOUTH FLORIDA HEARING

healthbareminimum220603A woman whose 18-month federal sentence last April came with a promise by a BOP medical official that he’d personally see that she would receive the care she needed to treat her life-threatening seizure condition was back in court after only eight weeks in FMC Carswell, due to her attorney’s concern that “the BOP has proven unable to manage or prevent these life-threatening episodes.”

Suzanne Kaye suffers from severe, stress-induced seizures. She went into cardiac arrest on the floor of the courtroom last year when she was convicted of threatening to shoot FBI agents in the “f****** ass. When she was sentenced, her lawyer warned that sending her to prison could kill her.

At sentencing, the Court found that there was “no doubt” that Suzanne “does suffer from a serious health condition, in fact perhaps a number of health conditions,” that she was “medically frail,” and that “she will require much medical care.” But despite her undisputed seizure disorder and other medical ailments, the Court relied on testimony from the FMC Carswell Medical Director that the BOP could “provide Ms. Kaye with whatever medical care she needs.”

Suzanne self-surrendered in mid-July. Only two months later, her attorney told the court that Suzanne “has required emergency outside hospitalization on at least two separate occasions. Specifically, counsel has been advised that Mrs. Kaye has suffered ongoing, repeated seizures—including two major episodes—with the latest episode involving cardiac arrest. (It has also resulted in blood clots that are now not being monitored)…” The BOP’s “repeated failure is contrary to the picture painted by the government at sentencing. Counsel has also been advised fellow inmates have been forced to attempt to [provide] life-saving care during these seizures because prison officials failed to do so.”

BOPMedical221208BOP medical official Mark Holbrook told the judge in April that some inmates have medical needs beyond what the Bureau of Prisons can treat. Suzanne, he said, was not one of them. But five months later, her heart and lungs briefly stopped working on the floor of a friend’s cell. Inmates screamed at the guards to call for help. “Granny’s eyes were wide open, but you could see that the light was no longer there,” wrote Katherine Moore, one of two incarcerated women who performed CPR on Kaye until medics arrived. “She was gone.”

“That was my mistake,” Dr. Holbrook admitted to the judge last month.

The Palm Beach Post reported, “Letters from half a dozen inmates and the testimony of Carswell’s own medical director depict a standard of care unlike the one Holbrook promised. One where Kaye must depend on her fellow inmates to keep her heart beating, and doubts over the legitimacy of her seizures dampen what care she does receive.”

When vouching for Carswell, the doctor said Suzanne would have access to a neurologist to treat her seizures and a psychologist to treat the anxiety that triggers them. He also promised a combination of anti-seizure medications that would take the place of her medical marijuana. “He made several promises and several assurances. It appears none of which occurred,” Suzanne’s attorney told the judge last month. “I’m not saying he lied — maybe he meant to and he forgot — but it is inexcusable in my opinion.”

Dr. Holbrook told the judge he left a voicemail with someone he believed was Carswell’s clinical director and never heard back. Maitee Serrano-Mercado, Carswell’s clinical director, testified that she was never contacted by Holbrook, and prison staff only belatedly learned that Kaye had a history of seizures.

Still, Dr. Holbrook said he was thankful Suzanne was at Carswell because it is “the best location” for her to be provided care. “Second best” undoubtedly would be an abattoir.

DrNoBOPHealth230925The Post noted that Carswell, once dubbed by the Fort Worth Weekly as a “hospital of horrors,” is “the only federal medical facility for incarcerated women in the country. It lost its accreditation during the pandemic and has not gotten it back. Indeed, the BOP seems to have no interest in doing so.

Carswell clinical director Serrano-Mercado argued at the hearing that Suzanne’s seizures might not be real. Serrano-Mercado admitted that the staff treating Suzanne are the same who treated a woman named Gwen Rider, a Carswell inmate who committed suicide in August. Like Suzanne, Rider was sent to Carswell because she needed medical treatment for epileptic seizures. Staff accused her of faking her seizures, too.

Suzanne was hospitalized again two weeks ago. Her mother, Brenda Kaye, told The Palm Beach Post that BOP medical personnel accidentally fractured her sternum while checking to see if she exhibited a pain response.

In an email to The Post, Suzanne called the treatment of herself and other women at the prison “nothing short of torture.” “People come in here walking and leave in wheelchairs. People die here,” she wrote. “I don’t want to be one of them.”

medical told you I was sick221017After publishing this report in my newsletter last weekend, I received an email from a prisoner at Carswell. She had been present when Suzanne and two other prisoners suffered seizures:

I had run to get an officer for the first one (which was Suzanne) and she wouldn’t call it on the radio, a medical emergency so I had to run to inside [the Recreation area] and get the officers there. They came running, Once they made it over there another girl went down in a bad grand mal seizure, then another one went down, also a really bad one that seemed like it was never-ending. The rec officers did their best, then other officers showed up but medical never showed up. The officers on the scene had to put the ladies on the back of their easy-go car and drive them up to the hospital area one at a time.

The time they had broken Suzanne’s collar bone I believe [they were] trying to get her heart to beat again. Just thought I would share an experience I had firsthand to put more information out there! Medical here does not care about us. They are desensitized and should all for the most part be replaced. We are still human and do not deserve to be treated like this. 

Palm Beach Post, ‘Inexcusable’: Attorney blasts federal prison officials over Boca woman’s medical care (October 27, 2023)

Motion for Hearing (ECF 200), United States v. Kaye, Case No 9:21-cr-80039 (SD Fla., September 12, 2023)

– Thomas L. Root

The Law’s Still Majestic… – Update for July 26, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

“THE LAW, IN ITS MAJESTIC EQUALITY…

… forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread,” so goes a famous 19th quotation. If you recall it, you have either read The Red Lily (which is unlikely) or remember that I’ve used the quotation before.

quackdoc210707It’s just that the observation is so apt, especially where prisoners try to bring Federal Tort Claim Act cases alleging medical malpractice by the quackery that is BOP healthcare.

In an effort to cut down on worthless medical malpractice (“med-mal”) claims, most state procedural rules require that such a claim be accompanied by an expert’s affidavit attesting that the plaintiff’s cause of action has some merit. If you’re the average man or woman on the street, and you watch mid-day game shows, you have already lined up a lawyer who will take your case for a 40% cut of the winnings. So it’s no problem: your lawyer has a compliant expert who will provide an affidavit swearing that some imbecile medical provider cut off your right leg and attached it to your ear.

But if you happen to be in prison, you’ve got a couple of hurdles to jump. First, finding a personal injury lawyer who wants to devote her time and money (yeah, PI lawyers front the expenses of the trial, which may hit six figures in some instances) is tough. As hard as it is to believe, juries do not have a lot of sympathy for federal prisoners who say they were hurt by lousy doctoring. Second, the biggest components of damages are lost earnings and medical costs. Inmates have no medical costs (except for the occasional $2.00 health service co-pay) or any lost earnings.

Because damages are what fire up a jury to award big bucks, the personal injury bar does not see inmate cases as being worth much.

pay210708‘No lawyer’ means that inmates have to pony up $5,000 right from jump to hire an expert, in order to get the affidavit they need to avoid having their FTCA claims thrown out.

Seems fair, right? After all, the requirement applies to all med-mal plaintiffs, rich and poor alike. The guy left in a wheelchair by a negligent truck driver, being represented by some megafirm needs an expert. So does an inmate making 25¢ an hour, Equality realized!

A couple of years ago, the 6th and 7th Circuits ruled that the Federal Rules do not require such affidavits, and thus are inconsistent with state rules. The Supremacy Clause of the Constitution holds that federal rules displace inconsistent state rules, and the FTCA expressly holds that federal rules govern its application.

notapply210726Last week, the 4th Circuit followed the 6th and 7th, holding that a West Virginia law requiring medical certifications before filing med-mal suits does not apply to FTCA actions. “About half of all states similarly demand that medical malpractice plaintiffs secure some sort of early support from a qualifying expert,” the Circuit said. “But there is now a growing consensus that certificate requirements like West Virginia’s do not govern actions in federal court, because they conflict with and are thus supplanted by the Federal Rules of Civil Procedure… We agree, and hold that failure to comply with West Virginia’s MPLA is not grounds for dismissal of Pledger’s federal-court FTCA action.”

Pledger v. Lynch, Case No 18-2213, 2021 U.S. App. LEXIS 21587 (4th Cir, July 21, 2021)

– Thomas L. Root

You Can’t Get Whatever You Need at Aliceville’s Health Services – Update for July 7, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

REASON MAGAZINE MAULS FCI ALICEVILLE HEALTHCARE

Reason.com, a libertarian magazine and website, published a lengthy investigative piece last month shredding the quality of healthcare the Federal Bureau of Prisons provides female inmates at FCI Aliceville.

prisonhealth200313The article is detailed and deeply researched. At one point, it cites the compassionate release of inmate Angela Beck last year. U.S. District Judge Catherine Eagles (Middle District of North Carolina) found that the BOP made Angela wait two months for imaging after she first found lumps in her left breast. Then she had to wait eight months for a biopsy, which confirmed the cancer, and two more months for surgery. By that time, the cancer had spread to her lymph nodes, requiring a radical mastectomy. Five more months passed before Beck’s first appointment with an oncologist, who determined that it was too late to begin chemotherapy at that point.

Judge Eagles wrote that the neglect Angela suffered “likely reached the level of a constitutional violation,” and that if she remained in BOP custody, she would continue to face “a substantial likelihood of substandard medical care for her life-threatening disease.”

The government, of course, opposed release, arguing that Angela’s “medical issues,” that is, the appalling negligence, “d[id] not qualify as a terminal medical condition or debilitated medical condition.” Judge Eagles thought otherwise, and released Angela so she could get some decent care at home.

Reason noted that although its article focused on Aliceville, “this story could have been written about any number of prisons or jails. Medical neglect of incarcerated people is a problem across the country on federal, state, and local levels. It’s a national disgrace—the kind people prefer to ignore. Prison officials downplay or hide the scope of it, there is a high bar for inmates trying to bring Eighth Amendment lawsuits challenging prison conditions, and the public by and large pays little attention to what happens behind prison walls.”

sam200707

The magazine received a message about an inmate being taken to Health Services with chest pains. “My friend told me that that lady today in medical kept saying, ‘I am going to die, I am going to die’,” the message continued. “And she did … but did she have to?”

The article said, “That’s a question Reason has been asking for the last year, and a question the BOP appears to have no interest in answering.”

Reason, These Women Received a Death Sentence for Being Sick In Prison (June 30, 2020)

United States v.  Beck, 425 F. Supp. 3d 573 (MDNC, 2019)

– Thomas L. Root

Preparing for the Prison Pandemic – Update for March 13, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CORONAVIRUS AND THE BOP

As of last night, the coronavirus (COVID-19) has sickened over 135,000 people worldwide. More than 4,900 people have died. Confirmed cases in the US exceed 1,700, with 31 deaths. 

corona200313Yesterday, Rep. Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, wrote to Attorney General William Barr, demanding answers to 14 questions about BOP preparedness for the inevitable spread of COVID-19 to federal facilities. Nadler said he was “especially concerned because the incarcerated and justice-involved populations contain a number of groups that may be particularly vulnerable to COVID-19. In particular, health conditions that make respiratory diseases more dangerous are far more common in the incarcerated population than in the general U.S. population.”

The New York Daily News reported on Monday that the Federal Defenders – an organization of public defense attorneys who represent indigent defendants (the vast majority of criminal defendants in the federal system) – presented “a five-step plan they want the federal Bureau of Prisons to implement to handle coronavirus, including a comprehensive testing protocol and requesting that no new inmates be housed at the jails without being tested for the virus first.”  The Defenders were focused on the troubled Metropolitan Correctional Center in Manhattan and the Metropolitan Detention Center in Brooklyn, which together hold about 2,300 inmates and pretrial detainees. The defense attorneys say there is a “lack of information and planning” relating to the disease in the facilities.

WXIN-TV, Indianapolis, reported yesterday that COVID-19 has spread to a central Indiana county jail correctional officer. Last week, ABC News reported that “Coronavirus suddenly exploded in China’s prisons last week, with reports of more than 500 cases spreading across five facilities in three provinces. Earlier this week in Iran, 54,000 inmates were temporarily released back into the country amid virus fears.” The Marshall Project has reported that it is only a matter of time before the virus reaches BOP facilities.

To minimize spread, the Centers for Disease Control and Prevention suggests avoiding close contact with people who are sick, covering your mouth with a tissue when you cough or sneeze, disinfecting frequently-used surfaces and washing your hands or using alcohol-based hand sanitizer. But these recommendations run up against the reality of prison life. Access to toilet paper or tissues is limited, there is no alcohol-based sanitizer, and you live on top of hundreds of people, meaning a virus like COVID-19 will spread like a prairie fire.

prisonhealth200313“COVID-19 will remind us of a central hypocrisy in our approach to health behind bars,” The Hill reported last week. “We’ve built the world’s largest collection of jails and prisons, and kept the health services in these places remarkably separate from the rest of our national health systems. The CDC, state departments of health, the Joint Commission and other bodies that promote evidence-based care in our hospitals, ambulatory care clinics and nursing homes are largely absent in these settings. As a result, management of this pandemic will be harder and less effective for incarcerated people, their families and staff in these institutions.”

“Time is of the essence to avert a public health catastrophe in the United States’ prisons and jails,” Nazgol Ghandnoosh, senior research analyst for The Sentencing Project told Newsweek on Tuesday. “Protecting incarcerated people during a contagious health
crisis by expediting releases would reduce the burden on prison staff of caring for the very ill and reduce demand for limited hospital resources which are shared with the broader public.”

Newsweek, Coronavirus Could Cause ‘Public Health Catastrophe’ in Overcrowded Jails Warns Prison Reform Group The Sentencing Project (Mar. 11)

New York Daily News, NYC’s federal jails not prepared for coronavirus, says defense attorney group (Mar. 9)

The Marshall Project: When Purell is Contraband, How Do You Contain It? (Mar. 6)

The Hill, 4 ways to protect our jails and prisons from coronavirus (Feb. 29)

– Thomas L. Root