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Virgin Island Officials Held in Contempt: Prisoner Mental Health Treatment Inadequate

by Matt Clarke

A federal district judge has held the Governor, Attorney General and Director of Corrections of the U.S. Virgin Islands and other prison officials in contempt for not correcting inadequate prisoner mental health treatment.

Virgin Island prisoners filed a class-action suit in 1994, “challenging inhumane and dangerous conditions at the Criminal Justice Complex (CJC) and CJC Annex in St. Thomas.” That same year the district court signed a consent decree ordering “specific improvements by dates certain to many aspects of prison operations and conditions.” The court issued numerous remedial orders related to shelter, environmental health, fire safety, physical plant, preventive maintenance, hygiene items, mattresses, medication distribution, legal access, telephones, security systems and Annex construction.

Since 2005, mental health issues have been the focus of additional orders, with the court noting that the “Defendants’ record of compliance with the Court’s remedial orders remains abysmal” even though they had been held in contempt four times for failing to make improvements.

In April 2005, forensic psychiatrist Jeffery Metzner inspected the CJC and issued a report which found mental health services for prisoners with serious mental illnesses were woefully inadequate. This included a lack of mental health care policies and procedures, inadequate mental health intake screening, a lack of health care leadership, insufficient contract hours for the prison’s psychiatrist, disorganized health records, and understaffing and overcrowding at the designated mental health unit, which was a maximum-security wing of the Annex and not a purpose-designed mental health facility.

The defendants had failed to take basic steps to construct and staff a desperately-needed and long-promised forensic mental health facility. Dr. Metzner stated that conditions for mentally ill prisoners were the worst he had seen in his 30-year career as an expert on prisoner mental health treatment. The defendants stipulated to the report’s findings. The described conditions had existed from the start of the litigation to the court’s issuance of a fifth contempt order on February 27, 2007.

Of special interest to the court was the fate of four prisoners who had been found not guilty by reason of insanity yet remained locked down in maximum security with little or no mental health treatment. The prisoners suffered from psychosis, hallucinations, paranoia and delusions. One such prisoner, Jonathan Ramos, was arrested in 2002 for attempted theft of a bicycle. Due to dangerous, assaultive conduct resulting from his mental illness, he was kept in constant lockdown and rarely received any mental health care. Once, Ramos was treated in a low-security, free-world mental health facility and showed strong improvement before being returned to the prison a month later.

The defendants acknowledged that Ramos needed long-term treatment at a secure mental health facility, which was not available in the Virgin Islands. Nonetheless, they left him locked down for years without treatment. When the district court issued an order that he be treated, the defendants tried to circumvent the order by dropping the criminal charges against Ramos. The court said they could not avoid a responsibility they had shirked for years – and an order of the federal court – so easily.

The defendants claimed insufficient funding as an excuse for why they had failed to implement the court’s orders. The district court didn’t accept that explanation, noting that it had created a remedial account to provide the defendants with ready access to funds to improve operations and conditions at the CJC. If the funds were inadequate to cover the construction of a forensic unit, they could have been used to cover the expenses of stateside mental health care for the four prisoners. However, the defendants did not even put much effort into finding a stateside mental health facility, having contacted only 10 of over 400 stateside mental health hospitals.

The district court found the defendants in contempt for failing to comply with the court’s orders. However, because the current Governor, Attorney General and Bureau of Corrections director had taken office less than a month earlier, the court stayed contempt sanctions to give those officials an opportunity to comply. The court stated that it would retain the option to impose sanctions if the new officials did not show progress, ordering a follow-up inspection by Dr. Metzner and a progress report from the defendants.

On November 10, 2008 the court ordered the defendants to pay the prisoners’ counsel $78,493.75 in attorney fees, and awarded an additional $84,272.18 in attorney fees on December 15, 2009. The prisoners were represented by Benjamin A. Currence of St. Thomas and Eric Balaban with the National Prison Project of the ACLU. The case remains ongoing. See: Carty v. Turnbull, U.S.D.C. (D.VI), Case No. 3:94-cv-00078-SSB-GWB.

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Related legal cases

Carty v. Turnbull

Please see the brief bank for documents related to this case

Carty v. DeJongh

District Court of the Virgin Islands, Division of St. Thomas and St. John.
Lawrence CARTY, et al., Plaintiffs,
John DeJONGH, et al., Defendants.

Civil No. 94-78.
Nov. 10, 2008.

Eric Balaban, Esq., ACLU National Prison Project, Washington, DC, Benjamin C. Currence, Esq., St. Thomas, USVI, for Plaintiffs.

Vincent Frazer, Esq., Attorney General of the V.I., St. Thomas, USVI, Richard Schrader, Esq., Assistant Attorney General, Department of Justice, St. Croix, USVI, for Defendants.

STANLEY S. BROTMAN, District Judge.

*1 The underlying litigation began on June 20, 1994, when Plaintiffs, pretrial detainees and inmates, filed a class action suit pursuant to 42 U.S.C. § 1983 alleging conditions in the Criminal Justice Complex (?CJC?) in St. Thomas were unconstitutional. Plaintiffs named various Virgin Islands officials as defendants including the Governor, Attorney General, Director of the Bureau of Corrections (?BOC?), and the CJC's Warden and Assistant Warden. The parties signed a Settlement Agreement (the ?Agreement?) on October 12, 1994, which this Court entered as an Order on December 7, 1994. In sum, the Agreement requires Defendants to make specific improvements relating to the operations and conditions of the CJC in order to bring the facility up to minimal constitutional standards.FN1

FN1. See Carty et. al. v. Farrelly et. al., 957 F.Supp. 727 (D.V.I.1997) and Carty v. Turnbull et. al., 144 F.Supp.2d 395 (D.V.I.2001).

Presently before this Court is Plaintiffs' FN2 Thirteenth Supplemental Motion for Reasonable Attorney's Fees and Expenses dated November 6, 2007. FN3 Plaintiffs' counsel from the ACLU National Prison Project are seeking $78,871.74 FN4 for reasonable fees and expenses incurred during the twelve months period from December 6, 2005 to December 6, 2006 for post judgment efforts to monitor and enforce the settlement agreement approved by this Court on December 7, 1994 and the Court's remedial orders.

FN2. Plaintiffs' counsel Benjamin Currence, Esq. will seek fees and expense recovery by separate motion.

FN3. Prison Litigation Reform Act, 42 U.S.C. § 1997e. This statute specifically authorizes post-judgment attorney's fees directly and reasonably incurred in enforcing court ordered relief. See 42 U.S.C. § 1997e(d)(1)(A).

FN4. On April 18, 2006 Plaintiffs withdrew 12.08 hours of work performed by Mr. Balaban, reducing their claims by S1,703.28 to $78,871.74.

The time and expenses schedules were submitted with the application (Docket entry # 511) and are summarized as follows:

Billed Hours
Excluded Hours
Rate Per Hour[FN5]
Total Request

FN5. The United States District of Columbia has increased the rate it pays court-appointed counsel under the Criminal Justice Act (CJA) from $92.00 to $94.00. See Ex. A, Balaban Decl. Under the Prison Litigation Reform Act's fees provisions, 18 U.S.C. § 3626, Plaintiffs seek compensation at 150% of the current CJA rate awarded by the District of Columbia district court. See Carty, No. 94-78, slip op. at 4-7 (D.V.I. Nov. 19, 2002). Elizabeth Alexander, Esq. and Eric Balaban, Esq. capped their hourly rates at $141.00 pursuant to this Court's November 19, 2000 order.

Nat'l Prison Project (NPP)
E. Alexander, Esq. 1.63 $141.00 $229.83
E. Balaban, Esq. 422.76 44.58 141.00 59,609.16
Law students/paralegals 17.10 111.93 90.00 1,539.00
Expenses 17,493.75

FN6. Defendants in their opposition do not provide a total for the fees and expenses which they oppose. Plaintiffs have reached this total as follows based on the specific objections Defendants raise: $7,188.00 in travel costs, $3,948.00 in specific time entries Defendants identify as excessive and unnecessary, $776.91 in fees for conferences between co-counsel, $1,310.82 in fees Defendants claim were billed at incorrect hourly rates, and $15,166.70 in expenses Defendants claim are non-compensable under the Virgin Islands Code. These amounts total $28,390.43.

In his declaration submitted to the Court (Docket # 511), Eric Balaban asserts that all of hours for which Plaintiffs claims were reasonably incurred in monitoring Defendants' compliance with and enforcing the terms of the settlement agreement and the Court's remedial orders.

1. The Plaintiff in a § 1983 action is entitled to fees under 42 U.S.C. § 1.988, and not 5 V.I.C. § 541, the Virgin Islands statute that authorizes fee awards in cases brought under Territorial Law ( See Thorsten v. Barnard, 883 F.2d 217, 218 (3d Cir.1989).

2. A defendant opposing a fee award waives the right to make objections it fails to raise in its fees response. See Black Grievance Comm. v. Philadelphia Elec. Co., 802 F.2d 648, 652-53 (3d Cir.1986).

3. Law of the Case doctrine holds that when an issue of law or fact has been determined by a valid and final judgment, the issue of law or fact cannot again be litigated in the same case. Hamilton v. Leavy, 322 F.3d 776, 786-98 (3d Cir.2003).

4. A fee petition must be specific enough to allow the District Court to determine if the hours claimed are unreasonable for the work performed. However, it is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted, nor the specific attainments of each attorney. Rode v. Dellacripete, 892 F.2d 1177, 1190 (3d Cir.1990).

*2 This Court has previously issued opinions respecting plaintiffs' motions for reasonable counsel fees and costs, two of which cover in detail issues which defendants again raise in the instant motion. Since these opinions are determinative as to many of the defendants objections, the Court lists such opinions as it will be making reference to them:

Carty v. Turnbull, No. 94-78, slip. Op. (D.V.I. Nov. 30, 2000) Docket Entry # 313

Carty v. Turnbull, No. 94-78, slip. Op. (D.V.I. Nov. 19, 2002) Docket Entry # 380

Defendants objections fall in various categories and will be addressed separately.

1. Generic Itemizations-Seeks deletion of all entries in the fee motion that blend different types of work, such as general itemization, clumping together references to reading articles, conferring with co-counsel, writing letters to opposing counsel, and asserting these types of itemizations, referring specifically to the entry on 2/1/06, have ?several different strains of legal work grouped together.?

a. The citation by defendants to Morcher v. Nash, 32 F.Supp.2d 239, 242-43 (D.V.I.1998) reflects a V.I. statute that authorizes fee awards in cases brought under Territorial Law. This is a § 1993 action with fees under 42 U.S.C. § 1988 and Morcher is not applicable.

b. The Court has thoroughly reviewed plaintiffs' itemization of services performed by counsel and finds them sufficiently specific to allow this Court to determine if the hours claimed are unreasonable for the work performed. See supra II, Applicable Law, # 4.

2. Insufficient Detail-Failure to properly differentiate tasks; lack of detail in regard to fees sought also problematic; failure to provide any itemization as to what was provided and when by the expert Dr. Metzner; failure to indicate that the information packets and responding to prisoner's mail are germane to this action; deletion of charge for blanket travel time between St. Thomas, St. Croix and D.C. in the absence of delineating the work accomplished during that time.

a. Defendant again raises issues previously rejected by the Court as to travel time. See Carty v. Turnbull, No. 94-78, slip. op. at 5 (D.V.I. November 30, 2000); see also id. n. 2.; see also Plaintiffs' Reply in support of this motion, Carty v. Turnbull No. 94-78, Docket Entry # 541, pages 4-7 as to expert fees of Dr. Metzner, pages 18-19, and Exhibit A of Balaban Declaration in Support of Plaintiffs Fees Reply, paragraph 8. This objection is likewise rejected.

3. Duplicative work and excessive amount of time spent on completing tasks-Defendants complain of the time spent by Plaintiffs' counsel in preparing pleadings, research and preparation for hearings including review of documents and notes of site visits, summaries of tour notes, review of interview notes, and for nearly 28 hours to review records and draft a report as well as hours spent researching the Contempt and Receiver motions.

*3 The Court rejects this objection and refers Defendants to Plaintiffs' Reply in Support of this Thirteenth Supplemental Motion for Reasonable Attorneys Fees and Costs. See Carty, No. 94-78, Docket Entry # 541, pages 12 to 17; See also Balaban Declaration, Carty, No. 94-78, Docket Entry # 541, paragraphs 4 to 7.

4. Potentially Unreasonable Costs, referring specifically to conferences with co-counsel and members of counsel's staff

a. This objection is rejected. See supra, II Applicable Law, paragraph 1; see also Balaban Reply, Carty, No. 94-78, Docket Entry # 541, at page 17. The time spent by counsel with co-counsel was 5.51 hours, less than 1% of the total hours for which claims are made (607.98).

5. Non-Compensable costs under the VI Law-relating to food, lodging, car rental and gasoline, photo copying, expert fees and the like.

a. This objection is rejected. See supra, II Applicable Law, paragraph 1; see also Plaintiffs' Reply in Support of Motion, Carty, No. 94-78, Docket Entry # 541, pages 17 to 20; see also Carty, No, 94-78, slip. op. at 9 (D.V.I. Nov. 19, 2002), Docket Entry # 380.

6. Incorrect Hourly Rate-Contending that Plaintiffs' counsel fees should be predicated on the PLRA rate at the time the work was performed, rather than the PLRA rate at the date of the fee petition.

The Court rejects this argument as it likewise did in its opinion, Carty, No. 94-78, slip, op. (D.V.I. Nov. 19, 2002), Docket Entry # 380. In the Third Circuit, when attorney's fees are awarded, the rate at the time of the fee petition, rather than that in effect when the services were performed, is used. See Lanni v. New Jersey, 259 F.3d 146, 148 (3d Cir.2001) (citing Rode v. Dellarsciprete, 892 F.2d 1177, 1183, 1188-89 (3d Cir.2001.)).

The Court rejects the objections of Defendants in their entirety. In view of the work completed and the legal issues raised, the Court finds that Plaintiffs' request for $78,493.75 in attorneys fees and expenses is reasonable. Further, Defendants have not set forth a valid argument as to why the sum requested should not be awarded. Therefore, Plaintiffs' motion is granted and the Court will enter an order accordingly.