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Protective Order Issued in Florida Solitary Confinement Lawsuit

by David M. Reutter

A Florida federal district court granted a protective order to protect “putative class members from retaliatory, chilling, or harassing conduct” and to prohibit “Defendants from improperly communicating with putative class members about th[e] lawsuit.” The court’s February 8, 2021, order was issued in a lawsuit challenging the Florida Department of Corrections’ (FDC) practice of placing prisoners in isolation or solitary confinement.

The court previously entered a protective order on January 28, 2020, to prevent retaliation from being taken against prisoner Johnny Hill. [See PLN, June 2020, p. 59]. The allegations and testimony at the hearing on the current motion were similar to that alleged by Hill with the exclusion of physical assault.

The current motion alleged guards tried to intimidate prisoners who spoke to class attorneys, deprived them of meals, made them languish while restrained in showers and holding cells for hours as they awaited the chance to speak to the attorneys, and invaded the privacy of legal calls and conversations with counsel.

After holding a hearing and considering the testimony and evidence, the court found that “actual overt retaliation by prison officials, as well as threats of retaliation” existed. It said that prisoners “deserve the assurance that their participation in the discovery—and indeed the lawsuit—will not result in any backlash. Only through a clear order from the court… will they receive such an assurance.”

The court noted that on February 13, 2020, FDC Secretary Mark Inch issued a memorandum which the court found “tacitly admits that retaliation is an ongoing threat” and that the FDC “has zero tolerance for retaliation of any kind.” The grievance process is supposed to guard against retaliation and grievances of that nature are supposed to be referred to FDC’s Inspector General (IG). The court noted at least one instance of a retaliation grievance that was investigated by the prison and denied without being sent to the IG.

The evidence also showed guards would question prisoners about what they said to the class attorneys, threaten loss of or actually deprive prisoners of property, label prisoners’ snitches if they spoke to attorneys, and that guards provided prisoners “air bags or air trays” at meal time, thereby depriving them of meals.

When prisoners were brought out of their cells to speak to class attorneys, they were often placed in showers in restraints for several hours as they awaited their turn. In instances where counsel conducted at-cell interviews, there would be as many as 17 administrators and supervisory guards present, which the court found was intimidating to prisoners. Guards would also stand so close that the conversations were not confidential.

Confidentiality was also an issue for out-of-cell interviews. Class counsel initially agreed to hold interviews in the visiting park, but guards would stand so close that privacy in the conversations was impossible. Even after the interviews were moved to classification offices, guards refused to allow the doors to be closed or if closed they would stand so close to the door that the conversations could be overheard.

The court declared that it has “zero tolerance for retaliation or threats of retaliation, against any person who participates in this litigation.” While the court did not intend to dictate protocols concerning prison security, it found it necessary to outline guidelines to carry out its protective order.

First, it said discussions between guards and prisoners concerning interviews or claims of the case “should be limited to sharing information regarding the timing of such events and should not involve any discussions regarding the purposes of the inspections/interviews or the wisdom or propriety of participating in the process.”

Next, only line staff should be present during the inspections/interviews. Guards should maintain a distance of at least ten feet from the prisoner and interviewers, unless a security issue is noted in writing to counsel the day before the interview. The court did not dictate how many guards could be present for the interviews, but it saw no reason for supervisory guards to be present.

The court further said that when interviews are conducted, “[p]rivate offices or cubicles are preferred to gymnasiums or visitation centers.” Prisoners and interviewers should be afforded “as much privacy as would be afforded legal counsel conducting a legal visit”

Finally, the court said prisoners should not be held in holding cells for longer than two hours and in shower for longer than 15 to 30 minutes. Restraints should be removed while in those areas. Guards are also to ask prisoners if they need water or to use the restroom every 45 minutes. Prisoners are also to be provided meals if in one of these holding areas.

The court issued a protective order that prohibited “[r]etailiation or threats of retaliation of any kind relating to an inmate’s participation” in discovery or the lawsuit. If disputes arise in following the guidelines, the issue is to be raised immediately. If a dispute cannot be resolved, the court will entertain a motion to resolve the dispute. The court’s process is not intended to supplant or replace the parallel grievance process. See: Harvard v. Inch, USDC, ND FL, Case No. 4:19-cv-00212. 

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