By Alan J. Keays

Jul 24 2019, 8:59 PM

 

A Vermont inmate was given a $750 payout by a private prison company in the settlement of a lawsuit he brought over sex abuse allegations against a nurse at the facility where he was incarcerated.

That’s the same amount of money another Vermont prisoner received in his claim against the same private prison company over a lost hard drive to his Xbox.

Those payouts, and several more, were revealed in documents released as part of a settlement reached earlier this year in a public records lawsuit.

The GEO Group housed about 270 Vermont out-of-state prisoners in a Michigan facility from June 2015 to June 2017.

Bernard Carter, who is a serving a 45-year-to-life sentence for rape in Vermont, was incarcerated in that facility when he filed his claim of sex abuse by a nurse.

Robert White, a convicted murderer serving a life-without-parole sentence, was behind bars at that same prison when he brought his claim about the lost hard drive.

The Washington, D.C.-based Human Rights Defense Center brought its public records suit in April 2018 against the GEO Group, a Florida company that operated the prison in Baldwin, Michigan, known as the North Lake Correctional Facility.

The legal action was seeking records related to lawsuits and their related documents brought by Vermont inmates against the private prison contractor.

The GEO Group agreed as part of the settlement to turn over those documents, including information regarding the payouts to inmates. In those settlements with payouts, the GEO Group did not admit wrongdoing.

Of the 27 cases with monetary settlements, the $750 Carter and White received were the largest. Most of the cases involved lost or damaged property when Vermont inmates were moved from a prison they had been housed in Kentucky to the Michigan facility in 2015.

In those cases, the inmates had represented themselves with their lawsuits filed in small claims courts in Vermont. Attempts by several inmates to resolve the issue of lost property through the transportation company did not receive responses.

An indemnification clause in the state of Vermont contract with GEO Group put the private prison contractor on the hook for dealing with those claims. The lowest payout among those claims was for $50.

GEO Group settlements by type of complaint

Sex abuse lawsuit

Carter’s was the only claim regarding allegations of sexual assault by a staff member.

In his handwritten federal lawsuit brought in 2016 in the Western District of Michigan, Carter alleged that starting in August 2015 a nurse at the Michigan facility made sexually explicit comments to him, making him feel uncomfortable.

It’s not clear from the legal filings the full name of the nurse due to various spellings, though her first name is consistent throughout as Theresa.

Carter wrote that he told her to stop, but she refused, coming to the high security unit where he was being housed and called him out for medical treatment three times per week.

During those call-outs, Carter alleged, the nurse would often have him expose himself to her.

“She would tell me how she wanted me to have sex with her,” the lawsuit stated. Carter later added in filings, “On 12-16-15, she called me to medical and wanted me to rub between her legs, she said that was my B-Day present.”

Carter wrote he was afraid to tell anyone for several months, but filed a grievance in March 2016. He added that the stress from the situation led him to lose 25 pounds over a three-month period.

An investigation was conducted, leading to the nurse’s termination, according to court filings.

Carter sued that nurse as well as several other parties, including the GEO Group and prison warden Ralph Cherry. He wrote in the lawsuit he was seeking $150,000 for mental distress and violations of the Prison Rape Elimination Act.

He also wanted to be housed in a different prison while the case was pending.

A federal judge dismissed the cases against all the parties except the nurse.

“A claimed constitutional violation must be based upon active unconstitutional behavior,” federal Judge Robert Holmes Bell wrote in his ruling. “The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act.”

According to a court filing, Carter later dismissed his lawsuit with prejudice, meaning it cannot be refiled. The one-paragraph dismissal notice does not indicate any payout to Carter.

However, records made public as part of the GEO Group’s settlement with the Human Rights Defense Center reveal that Carter received a $750 payment for his claim.

Human Rights Defense Center is the parent organization of Prison Legal News, which was first to report on the settlement in the GEO Group lawsuit as well as on the documents that were made public as a result.

According to the Vermont Department of Corrections, Carter is currently incarcerated in an out-of-state prison facility.

Vermont now contracts to send its out-of-state prisoners to the Tallahatchie County Correctional Facility in Tutwiler, Mississippi. The facility is run by the Nashville-based CoreCivic, the country’s largest private prison contractor.

Carter was charged in 1992 with sexual assaulting a woman. He claimed the sex was consensual. Carter was convicted by a jury in 1994.

The news website Splinter ran a story in June 2018 on Carter’s lawsuit shortly after it was filed. In that story, Carter’s mother, Ruth Carter, then 82, said her son had been held at several different out-of-state prisons during his incarceration, including in Kentucky and Arizona.

She she used to travel to visit her son, but hadn’t done so for some time due to the cost and difficulty in making such trips.

“They really need to do something to bring these men back to Vermont where they come from,” Ruth Carter said in the Splinter report. “They need their families and their families need them.”

Calls to a phone number listed for a Ruth Carter in Newport from VTDigger went unanswered Wednesday.

Other claims

The only other $750 payout from GEO Group was made to Robert White, convicted of murder in the slaying of a hotel desk clerk in 1998 in Rutland.

He filed a lawsuit alleging that while he was moved from a private prison in Kentucky to the one in Michigan, when Vermont changed contracts, the hard drive to his Xbox 360 gaming system was lost.

“While the value of the hard drive is nominal the cost to replace the 2970 songs and dozens of games stored on it are quite considerable,” he wrote.

White brought his lawsuit in a Vermont small claims court in Washington County against then-Department of Corrections Commissioner Andrew Pallito and the GEO Group.

He had been seeking $5,000.

Another inmate reported that during the move to the Michigan facility several items of personal property he valued at $4,322 went missing.

Those items included many articles of clothing as well as:

• Several Xbox video games he valued at a total of $459;

• A 200-count photo album. “Some of the photos lost were of my father and grandparents as well as other photos of friends who are no longer living,” the inmates wrote in his filing. “These photos are not replaceable.” He valued those photos at $1,000;

• Bose headphones he valued at $195;

• Sterling silver rope necklace, described as a family heirloom, he valued at $1,000;

• Sterling silver cross pendant, also described as a family heirloom, he valued at $500.

• 14k gold wedding ring he valued at $450.

According to the documents obtained by the Human Rights Defense Center, the inmate in that lawsuit received $500 from the GEO Group.

Seeking public records

Paul Wright, director of the Human Rights Defense Center and the editor of Prison Legal News, said the settlement with the GEO Group regarding access to the documents related to the lawsuits and payouts does not necessarily set legal precedent.

“But what it’s doing is it’s laying the groundwork,” he said. “The more state courts that hold that these private prison companies are subject to state public records law it weakens any arguments they have to argue otherwise.”

Wright added that he wasn’t too surprised by the low payouts, given that in the cases brought it was the inmates who filed them pro se, meaning they represented themselves.

He also said the fact that Prison Legal News needed to file a lawsuit to obtain information about the settlement shows the lack of transparency with private prison companies.

“They’re scooping up tens of millions of dollars in taxpayer money every year, they do a crappy job of protecting Vermont prisoners, and they’re not very transparent,” Wright said of private prison contractors.

“Prisons and jails that the government runs are very not transparent as well so we’re comparing rotten apples to rotten oranges here,” he added. “It’s not like one is terribly better than the other.”

Vermont Department of Corrections Commissioner Mike Touchette said this week he wasn’t aware of the settlement in the case between the Human Rights Defense Center and the GEO Group.

“Because we’re not party to this lawsuit we weren’t informed of it,” he said.

Asked about the low payouts for some of the settlements, he said he couldn’t comment without knowing what the claims were and what went into the decisions of the parties to resolve the matters.

He said private prison contractors with the state of Vermont are required to comply with Vermont state law, including the Public Records Act.

Vermont’s Public Records Act exempts records that are explicitly deemed confidential in other laws. That means it does not apply to inmate records, such as grievances filed by prisoners, which are classified as confidential in a separate state statute.

Other documents related to inmates do become public through legal actions, such as the filing of lawsuits in court.

New Department of Correction rules would establish new guidelines allowing prisoners access to their own records. Prisoners could then make those records public.

Burlington attorney Joseph Farnham, representing GEO Group, said in “broad terms” the private prison company agreed to resolve the lawsuit with the HRDC to avoid “protracted” litigation.

He said he wouldn’t comment on the individual cases involving the claims by the inmates and the payouts, including the $750 paid in the case involving the sex abuse allegations.

Asked why the GEO Group hadn’t provided the information to the Human Rights Defense Center earlier, Farnham replied, “I won’t comment on that.”

It’s not the first time the issue of whether a private prison company contracted with the state to house inmates out of state is subject to Vermont’s Public Records Act.

The Human Rights Defense Center, then joined by the American Civil Liberties of Vermont, brought a separate lawsuit against a different private prison company, Corrections Corporation of America, in 2013.

At that time, CCA was housing hundreds of Vermont’s out-of-state inmates in the company’s facilities in Kentucky and Arizona.

CCA had moved to throw the lawsuit out of court. However, Judge Robert Bent, then presiding in Washington County Superior Court, denied that motion. He wrote in his ruling, “Imprisonment is one of the most intrinsically governmental functions.”

“CCA holds Vermonters in captivity; disciplines them; pervasively regulates their liberty, and carries out the punishment imposed by the sovereign,” Bent continued. “These are uniquely governmental acts. CCA could have no lawful basis for such an undertaking except on authority of a government. It is no ordinary government contractor.”

A settlement of the lawsuit was ultimately reached between the parties in 2015. CCA agreed to provide the records, though they were subject to exceptions under the Public Records Act, such as an individual’s health records.

Attorneys for the Human Rights Defense Center, in seeking the records from the GEO Group in the more recent case, had contended that while it was a private company it is still subject to the Vermont Public Records Act.

The lawsuit argued that due to its contract with the state Department of Corrections for the housing and care for Vermont inmates, the GEO Group acted as a “public agency.”

The GEO Group, according to the lawsuit, had refused to respond to a public records request from the organization. That’s when the legal action was filed in April 2018.

As part of the settlement, GEO Group provided the documents as well as paid a total of $6,865 to the Human Rights Defense Fund for legal fees and costs associated with bringing the suit.

The organization was represented by attorney Robert Appel of Vermont, and Deborah Golden, an HRDC lawyer based in Washington, D.C.