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Alabama DOC Quickly Settles Prison Working Conditions Suit

by John E. Dannenberg

On January 8, 2002, a scant two months after being sued, Alabama Department of Corrections (DOC) officials settled a class action complaint filed on behalf of 200 prison workers at the Elmore Correctional Facility who were subject to severely unsanitary and dangerous conditions while working at Elmore's garbage separation (recycling) facility. The Settlement Agreement details elaborate rules regarding safety, working conditions and protocols, sanitation, medical treatment (job injuries), retaliation, compliance/monitoring and attorney fees.

Kendrick Brinkley and fourteen other named prisoners at Elmore sued Warden Earnest Harrelson, senior staff and prison guards responsible for forcing Elmore prisoners to labor without pay in gross, inhumane and dangerous conditions in the prison recycling plant serving Montgomery, Alabama. The 42 U.S.C. § 1983 civil rights suit filed by attorneys for the Southern Center For Human Rights in federal court alleged that the prisoners were required to hand sort hazardous waste materials "including, but not limited to, human feces, bloody tampons, laboratory and medical wastes, dead animals, used hypodermic needles and intravenous needles, maggot-infested foods, razors, [and] industrial and household chemicals."

Only occasionally provided with thin latex gloves or paper mouth masks, but no protective clothing, the prisoners stood in bins of garbage, unclogging conveyer chutes while more garbage rained on their heads. Effluent of all the above flavors splashed onto their bare arms and faces and soaked through their clothing onto their bodies.

Other notable biohazards they encountered included dirty diapers, urine specimen cups, used intravenous bags, blood soaked gauze and bandages, laboratory test tubes, bottles containing bacteria and other specimens, chemical containers labeled "toxic," bags of materials labeled "biohazard," broken glass and cans with jagged edges. Much of this came from nearby Auburn University Montgomery's laboratories.

In addition to the threat of cuts from these hazards, the prisoners were subject to bites and ticks from live rats running freely through the waste they were handling. Because the facility was not an enclosed building, rain soaked the prisoners and garbage, causing injuries from slipping on the slime. Lacerations and needle-stick injuries were commonplace while working in the conveyer belt waste stream, causing exposures to HIV and to Hepatitis A, B and C. The prisoners were exposed to other unknown diseases when handling dead laboratory mice, rats, baby pigs, frogs, fish, dogs, cats and birds.

Inhalation of toxic fumes and splashing of solvent chemicals caused injuries to unprotected faces, hands, eyes and other mucous membranes.

Prison workers were given no safety training of any kind for the facility or for emergency procedures when exposed to bio hazardous or chemical hazardous waste.

No first aid kit was available at the facility. If a prisoner suffered laceration or skin punctures, he was denied medical care and forced to go back to work.

The sink in the facility's bathroom was broken. The bathroom floor, often covered with several inches of standing water, was overrun with rats. The outside spigot for hand washing had no soap available. However, workers were permitted to salvage discarded soap from the waste stream if they desired soap to wash their hands.

After being strip-searched at the end of their shift, the workers had to put their soiled work clothes back on and were sent to the cafeteria to eat. Prisoners were not given time to take a shower first. Those who did missed their meals. It was either go hungry or eat in clothes caked with toxic waste stream effluent. Although the Alabama Administrative Code requires permits for all recycling facilities and regulates their operation in considerable detail, Elmore did not have such a permit nor had it ever applied for one. Similarly, Elmore was required to have a Health code permit - but did not and had never applied for one. Warden Harrelson's attorney alleged, incorrectly, that the state was exempt from its own codes.

Other Alabama Administrative Code violations charged in the complaint were based on the lack of protective gear and that the receipt of any infectious or hazardous waste in such a recycling facility was flatly outlawed.

The extreme danger these conditions posed to workers was well known to the defendants. Grievances and two pro se lawsuits had been filed. It was now a "no-brainer" to prove deliberate indifference of substantial violations of plaintiffs' constitutional rights as would be needed to sustain the claim of violation of Eighth Amendment rights regarding cruel and unusual punishment, and to prove deliberate indifference to the plaintiffs' serious medical needs.

Defendants signed the Settlement Agreement two months after the complaint was filed. The definitions of hazardous and biological waste were specified to include the gross material described above.

Workplace safety was defined and equipment ordered, including protective eyewear, face masks, work gloves, forearm barriers, work aprons and heavy duty work gloves. Workers were also to be provided proper tools such as sticks with prongs. Work boots were ordered for all, as well as replacement protective clothing whenever their gear became punctured, torn or contaminated.

Emergency eye wash stations and an emergency shower were ordered installed, along with user training and weekly testing.

Protective covers were required to prevent waste from falling on workers. Defendants were ordered not to accept any hazardous or biological waste, as defined, at Elmore. No liquids could be placed on the conveyor system. If inadvertent hazardous material was spotted, it must be removed by a guard and a log made of the event, with traceability made to the source to prevent recurrences. A safety plan was ordered, comporting with Alabama Administrative Code standards. Immediate medical care by a licensed medical care provider was ordered upon any prisoner injury.

Any worker injured with a puncture wound or abrasion must be treated according to a specified protocol regarding blood borne pathogens, including Hepatitis B inoculations plus follow-up testing. Treatment must be within one week and without co-pay charge to the prisoner. A first-aid kit was ordered.

At the end of each shift, each worker must be provided a fresh change of clothes and a minimum of 30 minutes to shower and change before eating.

All bathrooms were ordered to be made functional and sanitary, with soap, towels, and no standing water. Regular vector control to exterminate vermin was ordered.

A clause specifically protects prisoners against any and all forms of retaliation for this litigation. A prohibition was made against even mentioning the suit in any prisoner's file.

Posting of the Agreement, appointment of a Monitor and Compliance audits were agreed to.

In an interesting twist, the Agreement stated that is not a consent decree and is not enforceable in federal court. If it needs to be enforced it shall be done only in state court, pursuant to 18 U.S.C. §3626(c)(2)(B). However, plaintiffs were not precluded from bringing a new federal action in the event of non-compliance with the Settlement Agreement. Accordingly, the current case was agreed to be dismissed without prejudice to plaintiffs.

The unstated benefit of making enforcement a state action was two-fold. Because it was not a federal consent decree, it was not subject to automatic termination in two years under the Prison Litigation Reform Act (PLRA). Second, attorney fees were provided for without restrictions of PLRA fee caps.

The day after the class action suit was filed, Warden Harrelson told the Birmingham News: "That's ridiculous.... You've got a small group of inmates who don't want to work, is what it amounts to. We're requiring them to work all day. They don't like that." The Settlement Agreement states that it does not constitute an admission of liability. But one can only wonder where Auburn University Montgomery's hazardous and bio hazardous waste is now being dumped, or who, if anyone, is being held accountable for such wholesale violations of the Alabama Administrative Code. See: Brinkley v. Harrelson, No. 01-A-1287-N, USDC, M.D. Ala., Complaint (Nov. 6, 2001); Settlement Agreement (Jan. 8, 2002).

Additional Sources: Birmingham News and Montgomery Advertiser

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Related legal case

Brinkley v. Harrelson