Jailhouse Law

The past month has seen a flurry of legal action directed at Orleans Parish Prison and Sheriff Marlin Gusman


Orleans Parish Sheriff Marlin Gusman is a defendant in 32 pending lawsuits alleging abuses of prisoners' rights. The plaintiffs in such cases usually lose. - PHOTO BY CHERYL GERBER
  • Photo by Cheryl Gerber
  • Orleans Parish Sheriff Marlin Gusman is a defendant in 32 pending lawsuits alleging abuses of prisoners' rights. The plaintiffs in such cases usually lose.

The ashtray outside the Southern Poverty Law Center's (SPLC) Canal Street office is overflowing with cigarette butts — a reliable signal of stress — when Katie Schwartzmann sits down. Schwartzmann, the organization's local managing attorney, has asked to meet outside rather than in the office's conference room. It's not so she can smoke (though she does) nor is it because the rain's finally letting up a bit (though it is). Schwartzmann insists on speaking outside because there's far too much sensitive material inside.

  On April 2, SPLC filed a federal class-action lawsuit against a formidable opponent — Orleans Parish Sheriff Marlin Gusman — and Orleans Parish Prison (OPP), the massive jail complex for which he's responsible. Also named in the suit are the six wardens who run OPP facilities — the House of Detention (HOD), Old Parish Prison, the Temporary Jails (aka "The Tents"), Conchetta and the newly opened Temporary Detention Center (TDC).

  The alleged details of daily life in OPP — including charges of dangerously overfilled cells, inadequate medical care and a culture of indifference to the inmates' welfare on the part of guards, supervisors, wardens, all the way up to Gusman himself — have inundated SPLC's office. On an average day, OPP is home to more than 3,200 inmates, or the equivalent of nearly 1 percent of New Orleans' total population. There's a lot of material.

  "The conference room is covered in papers and files and sticky notes," Schwartzmann says. "You know, because we just lodged this thing, so we have our clients' information everywhere. It's not something we really want to have visible. There are, what, 3,400 people in there. Our phone's been ringing off the hook."

  She's just returned from the jail after a full day of meeting with some of the plaintiffs named in the suit. "It's going to be an ongoing process of fact-gathering. We're going to keep at it," Schwartzmann says. She believes this lawsuit will succeed, that OPP will be found to be an unacceptably dangerous place, a settlement will be reached and reforms will be made.

Many lawsuits are filed every year against the Orleans Parish Sheriff's Office (OPSO) and Gusman. As of this writing, Gusman is a named defendant in 32 pending federal lawsuits charging various civil rights violations, federal court records show.

  The plaintiffs in these suits usually lose. Between January 2011 and April 2012, Gusman was named in 50 suits. Of those, 30 are still pending. The remaining 20 were either dismissed — often as frivolous and generally after only a few hearings — or the plaintiffs ceased prosecuting the cases. Of 50 suits filed in 2010 and since closed, 46 were dismissed or dropped by the plaintiffs. Four were settled without a trial.

  Schwartzmann points out that in the vast majority of those cases, inmates were pursuing complex federal litigation without the aid of an attorney — known as pro se legal representation.

  "You're right that they're dismissed," Schwartzmann says. "And the reason that they're dismissed is that these cases are incredibly hard to bring. There is a federal statute called the Prison Litigation Reform Act, and it prevents a prisoner from bringing a case challenging the conditions of his or her confinement without satisfying certain prerequisites. And it also imposes some pretty substantial procedural hurdles." (Gambit found only two closed cases since 2010 in which the plaintiff had an attorney. Both were settled.)

  The SPLC's timing could be fortuitous. The past month has seen a number of major actions against the jail.

  Most recently, on April 2, U.S. District Court Judge Jay Zainey ordered a jury trial in Prison Legal News v. Gusman, per the plaintiffs' request. Prison Legal News, which specializes in news and analysis about prisoner civil rights litigation, filed suit in September 2011 alleging that OPSO was denying inmate subscriptions to the publication, mailing copies back and failing to provide a legally valid reason for doing so.

  Schwartzmann calls the magazine an invaluable resource for inmates considering taking legal action against their jailers, especially at OPP, which doesn't have a law library. "People in there have not had access to materials, and that affects one's ability to litigate a case," she says.

  On March 23, the U.S. Marshals Service pulled 20 federal inmates out of OPP, citing unsafe conditions.

  Three days later, the office of Orleans Public Defenders (OPD) filed a motion for an injunction in Orleans Parish Civil District Court seeking immediate improvements to client access. The filing is part of a lawsuit OPD filed last fall claiming a lack of privacy, restrictive visiting hours and lack of facilities that would allow attorneys and clients to view court documents together in OPSO-controlled facilities. Since the tent facility opened on March 1 (which defense attorneys say they were not told about for five days), those conditions have worsened, they claim. When they finally were informed that some of their clients had been transferred there, OPD claims that lawyers were only allowed to consult with their clients intermittently and without privacy, a violation of the attorney-client privilege.

  From the filing: "Whereas the attorney is sitting in a fully enclosed, private room, the detainee is not sitting in an enclosed space. Rather, the detainees' visitation space is at one end of a large open room used for recreation (watching TV) and dining for all TDC inmates. The video screens for visitation is [sic] on the same wall as the television. Detainees watching television can see who is conducting an attorney visit." (OPD's Jee Park, lead counsel in the lawsuit, did not return Gambit's requests for comment by press time.)

Through spokesman Marc Ehrhardt, OPSO officials declined to grant an interview for this article. However, on March 26, Ehrhardt emailed a prepared statement attributed to Gusman. It says, in part:

  "The OPSO is ready and willing to work with the Public Defender's Office to address their needs and ensure that all defendants are able to meet with their designated counsel. We are making every effort to create a safe environment that allows public defenders and all attorneys to meet with their clients and conduct their business in an efficient manner."

  Schwartzmann says the recent actions taken against the jail and Gusman suggest a certain momentum. "It is definitely accurate that there has been a lot of movement around the jail lately in terms of different facets of the communities that are affected by OPP speaking out against it or taking action against it," Schwartzmann says.

  Still, the important thing for SPLC and other plaintiffs is the quality of their evidence, which Schwartzmann calls "overwhelming."

  Attached to the 38-page lawsuit are 19 affidavits signed by current or former inmates, including 10 named plaintiffs. The witnesses paint a picture of an institution where brutal violence is the norm, with little intervention from guards, and where medical attention arrives late if at all.

  In one affidavit, inmate and plaintiff Greg Journee describes being attacked by a group of men shortly after he was transferred from Old Parish Prison to HOD.

  "Some of them held me while another one stabbed me over and over," Journee writes. "I was bleeding all over and yelled for a deputy. No one came until the next day."

  Another plaintiff, Leonard Lewis, a former Old Parish Prison inmate who's a witness in a criminal trial, says guards consistently have placed him in close proximity to inmates against whom he's testifying — and he's been beaten and stabbed as a result. Lewis, whose affidavit states that he's now in protective custody in HOD and locked in his cell 23 hours a day, says that recently he was temporarily moved into general population while waiting to go to court.

  "Someone yelled out, 'I heard you were a rat.' The cells were open and this guy came into my cell and started fighting me."

  An OPSO deputy allegedly locked down the tier so Lewis couldn't get away.

  "My whole face was swollen from the fight and I think my nose was broken," the statement reads. "A nurse just gave me an ice pack."

  "The deputies and staff of the OPSO are working daily to address the care, custody and control of the inmates in our custody," reads a statement provided by Ehrhardt, again attributed to Gusman. "Our health care within the jail system is recognized for the work it does every day. The Orleans Parish Sheriff's Office is one of only three correctional facilities in Louisiana accredited by the National Commission on Correctional Health Care (NCCHC), which is dedicated to improving the quality of correctional health services and helping correctional facilities provide effective and efficient care."

On March 27, before filing the class-action suit, SPLC sent a letter to Gusman on behalf of an unnamed transsexual client, who is not a plaintiff in the suit. The client identifies as female, but was placed in a male tier in Orleans Parish Prison. According to the letter, the woman was gang-raped by other inmates on Feb. 27. Despite seeking help, she wasn't seen by medical staff until Feb. 29 and then was placed in HOD's psychiatric unit — known as HOD-10 — on the 10th floor of the building, again in a male tier. There, the letter says, she was raped repeatedly. Weeks went by before an OPSO nurse intervened. The woman was taken to Interim LSU Hospital where she tested positive for HIV. According to the letter, she was HIV-negative when she entered the jail.

  Yet another prepared Gusman statement delivered by Ehrhardt claims that "preliminary results of the examination by LSU's medical staff indicates (sic) no forced sexual assault."

  Asked about the other claims, Ehrhardt provided a statement from Gusman which reads:

  "The SPLC repeats lies without any regard to the findings of the Orleans Parish Sheriff's Office and independent medical and law enforcement agencies. We have asked the SPLC repeatedly to allow the OPSO to release the medical records and accompanying information related to the complaints made by individuals working with the SPLC, so that the public could have the most accurate information about the situations in question. The SPLC continues to refuse each request. The SPLC is stonewalling investigations involving the very people they claim to help.

  "The OPSO has a zero-tolerance policy regarding sexual activity and assault in our facilities. The OPSO investigates every allegation of sexual assault and violent behavior immediately and thoroughly. We are open, transparent and accountable to the public."

  Schwartzmann says OPSO hasn't made any requests for those records. If it had, she adds, she would refuse, citing client privacy rights. The relevant records — pertaining to specific claims against the jail — will be made available when the case moves into the discovery phase.

  As to the unnamed woman, LSU's doctors didn't actually determine whether she was sexually assaulted, Schwartzmann says. They simply examined her injuries, gathered evidence and submitted it for forensic review, which hasn't been completed.

  "We have the same medical report that the sheriff's office does, and we read it completely differently. There are things in the medical report that substantiate our client's allegations. And I'm going to leave it at that because I don't want to release her medical stuff. I don't think that's appropriate," she says. "We've seen the medical records, and we've done additional fact-finding. We've talked to people who were in there with her. That's not an allegation that we're going to make lightly. We stand by it."

  As of this writing, Gusman and the other defendants in the SPLC lawsuit have not filed answers to the complaint. They were served summonses on Thursday, April 5, court records show, and have until April 26 to respond.

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