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Indiana Prisoner’s Suit Alleging Illegal Solitary Confinement Settled for $425,000

by Douglas Ankney

Taxpayers of the state of Indiana will pay $425,000 to prisoner Jay Vermillion as the result of an agreement reached on October 21, 2019, between him and employees of the Indiana Department of Correction (IDOC). This agreement settled Vermillion’s § 1983 lawsuit alleging the IDOC employees unlawfully placed Vermillion in solitary confinement for 1,513 days; illegally confiscated, lost or destroyed all of his personal property, and denied his due process rights at three prison disciplinary hearings.

According to Vermillion’s suit, in July 2009, he was incarcerated at the Indiana State Prison (ISP) when investigators from the IDOC Internal Affairs Office informed him they were going to have criminal charges filed against him because they believed he was involved in the escape of three men from ISP that occurred earlier that month. Vermillion then exercised his constitutional right to cease answering the investigators’ questions. Ten minutes later, at the behest of the investigators, Vermillion was placed in ISP’s punitive segregation unit because of his refusal to answer their questions.

Two days later, Vermillion received a conduct report charging him with the offense of “trafficking” with ISP Counselor Don Bates in the Honor Housing Unit (where Vermillion was housed before being sent to the punitive segregation unit). However, the date and time the alleged trafficking occurred was while Vermillion was in the investigators’ office being questioned by them.

Vermillion told ISP Officer Dawn Walker that the investigators and other named employees could establish his whereabouts on the date and time of the alleged offense. Walker stated she would assist in obtaining statements from these employees, but she never did. On August 12, 2009, Disciplinary Hearing Board Chairman Bessie Leonard found Vermillion guilty of the charged offense at a hearing in which Vermillion received no advance notice, wasn’t permitted to call witnesses or present evidence, and denied a decision supported by “some evidence.”

Even though 30 days was the maximum allowable sanction, Leonard sentenced Vermillion to one year in disciplinary segregation. An hour later, Vermillion was transported to the Westville Correctional Unit (WCU), a super maximum-security facility. For the next three-and-a-half years, Vermillion faced complete isolation in a solid “concrete tomb” for 23-24 hours a day with no direct contact with others. He endured mace fumes, no recreation, no telephone, no work or income, other prisoners’ suicides, no religious services, no hot water, no hot meals, regular cell ransacking, and repetitive strip searches.

In the meantime, his appeal of the disciplinary offense made its way up the chain, each time being affirmed. In September 2010, the final reviewing authority, Charles Penfold, affirmed the conviction. It also was during this time that, in response to Vermillion’s requests for information on why he was being housed at the facility, WCU Director of Operations Gary Brennan ordered the destruction of all of Vermillion’s personal property — including photographs of his deceased wife and of his child.

In March 2011, Vermillion filed a petition for writ of habeas corpus in an effort to obtain relief from the bogus charge and punishment. Penfold then issued an unsolicited “second opinion” vacating the conviction and ordering a re-hearing. Subsequently, the habeas petition was dismissed.

The rehearing was conducted in the exact same manner as the first, and with the same result. Perhaps most disturbing about this suit is that this process of a constitutionally inadequate hearing, guilty finding, punishment, affirmance on appeals, filing a habeas petition, issuance of second opinion, dismissal of habeas, and another rehearing was repeated three times. Finally, in February 2014, instead of conducting a third rehearing, IDOC authorities dismissed the charge and ordered the entire matter expunged from Vermillion’s record.

Despite the fact that Indiana law says the maximum allowable term of solitary confinement is 30 days; in spite of the fact that IDOC officials were aware that Vermillion’s due process rights were blatantly violated; and in spite of the fact that the IDOC agreed to settle the suit, IDOC spokesman Dave Bursten said, “We continue to deny any fault, wrongdoing, or liability with respect to this litigation.” See: Vermillion v. Plank, USDC (S.D. Ind.), Case No. 1:15-cv-605. 


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Related legal case

Vermillion v. Plank