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Doj Ltr Re Cripa Investigation of the Erie County Holding Center and Cf 2009

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u.s. Department of Justice
Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20530

The Honorable Chris Collins
County Executive
Rath Building - 16th Floor, Rm. 1600
Buffalo, NY 14202

CRIPA Investigation of the Erie County Holding Center
and the Erie County Correctional Facility

Dear Mr. Collins:
We write to report the Civil Rights Division's investigative
findings of conditions at the Erie County Holding Center ("ECHC")
and the Erie County Correctional Facility ("ECCF"). On November
13, 2007, we notified then Erie County Executive Joel Giambra
that we had initiated an investigation of these facilities
pursuant to the Civil Rights of Institutionalized Persons Act
("CRIPA"), 42 U.S.C. § 1997, which authorizes the Department of
Justice to seek remedies for any pattern or practice of conduct
that violates the constitutional rights of incarcerated persons.
Initially, we informed Executive Giambra that our investigation
would focus on medical care, mental health care, and protection
from harm; however, in the course of our investigation, we also
became aware of environmental health and sanitation conditions
that warranted investigation.
We note that, initially, the County of Erie (the "County")
cooperated with our investigation, providing the United States
with some of the requested documents from January 1, 2007,
through March 1, 2008.
Specifically, the County provided ECHC
incident reports; some grievances; state and national corrections
reports; and ECHC and ECCF policies and procedures. However, the
County did not produce corresponding medical reports, which
limited our ability to assess the number and severity of injuries
that inmates suffered following incidents of self-injurious
behavior, attempted suicides, actualized suicides,
inmate-on-inmate violence, and excessive use of force by staff.




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Initially, we planned to tour ECHC and ECCF in March 2008,
but we re-scheduled our tour to August 2008 at the County's
request, 'due to the appointment of a new County Attorney.
In the
months leading up to the scheduled August tour, the County broke
off all communication with us despite our repeated outreach and
offers to meet and discuss the County's concerns. On June 16,
2008, the new County Attorney notified us that the County would
no longer cooperate with our investigation. The County refused,
and continues to refuse, to allow us access to the facilities,
staff, or inmates.
The County's unreasonable denial of our request for access
is especially troubling, given that inmates committed suicide on
March 31, 2008, and April 30, 2008, well after we' placed the
County ,on notice that our investigation would review allegations
of deficient suicide prevention measures.
If the County had
agreed to our proposed investigation procedures, County officials
would have had an early opportunity to work directly with our
experts and staff, in an effort to improve conditions at the
facilities with the hopes of avoiding such incidents. They also
would have had an opportunity to address any identified problems
on a voluntary, proactive basis at an early stage of this
Furthermore, while we strongly disagree with the County's
decision to deny us access to the facilities, the County's denial
of our request for access to Erie County inmates, even during
regular visiting hours, is unreasonable and devoid of any legal
or penological support.
Inmates have a First Amendment right to
speak with gov~rnment representatives about the conditions of
their confinement and the County has no legitimate penological
basis tb deny the inmates access to United States government
In December 2008, we informed the County of our plans to
travel to the County to interview inmates at ECHC and ECCF. The
County again denied us access to ECHC and ECCF inmates. Despite
the County's refusal to cooperate, during our December 2008 visit
to the County of Erie, we were able to communicate with a number'
of current and recently transferred ECHC inmates through an
arrangement with the United States Marshals Service ("USMS") and
various state facilities. 1

We appreciate the assistance provided to us by the New
York State Department of Correctional Services and the staff at
the Attica, Orleans, and Wende facilities.


3 -

We later learned that the County interviewed some of the
ECHC inmates with whom we communicated. We were told that these
interviews were videotaped, that the inmates were asked what we
had spoken to them about, and that they were required to sign a
form. 2 We stressed to the County that such interviews could be
construed as retaliation, which is unlawful under CRIPA, but we
were given no assurances that the County would desist from such
behavior. Notably, we repeated our offer to meet with the
County, in order to explain our investigative process, instead of
having the County attempt to secure this information from inmates
in a manner the inmates might find troubling. Again, our offer
was rejected.
By law, our investigation must proceed regardless of whether
officials choose to cooperate.
Indeed, when CRIPA was enacted,
lawmakers considered the possibility that state and local
officials might not cooperate in our federal investigation.
H.R. CONF. REP. 96-897, at 12(1980), reprinted in 1980
U.S.C.C.A.N. 832, 836. Such non-cooperation is a factor that may
be considered adversely when drawing conclusions about a
See id. We now draw such an adverse conclusion. 3


Consistent with the statutory requirements of CRIPA, we
write to advise you of the findings of our investigation,' the
facts supporting them, and the minimum remedial measures that are
necessary to address the deficiencies we have identified. As
described more fully below, we conclude that the conditions of
confinement violate the constitutional rights of inmates confined
at ECHC and ECCF.
In particular, we find that, based on
constitutionally deficient practices, the Erie County Sheriff's
Office (~ECSO"), the Jail Management Division (~JMD"), and the
Erie County Department of Mental Health (~ECDMH"), through the
Adult Forensic Mental Health Clinic, 'fail to protect inmates from
serious harm or the risk of serious harm.

We requested copies of any videotapes from these
interview sessions and any forms signed by the inmates, but our
request was denied by the County.

The County's non-cooperation constitutes only one
factor that we consider in preparing our statutory findings and
recommendations. We also have considered the documentation
provided by the County, reports issued by the National Commission
on Correctional Health Care and the New York State Commission on
Corrections, news articles, and interviews with private
attorneys, inmates, and local law enforcement officers.

- 4
I .




Facility Description

ECHC is a pre-trial detention center located in Buffalo, New
York; ECCF is a correctional facility located in Alden, New York.
Both facilities are under the authority of Erie County Sheriff
Timothy B. Howard, and are managed by the Superintendent of the
County's JMD. 4 ECHC is the second largest pre-trial detention
facility in New York.
ECHC was built to house 680 inmates with
the combination of "pod," open bay "dorm," and traditional
linear-type cells. ECCF was built to house 1,070 convicted
prisoners, parole violators, and ECHC overflow inmates.
Approximately 23,000 people are processed through the two
facilities each year, with a daily population of approximately
The ECSO provides medical and dental services to both
facilities, while the Erie County Department of Mental Health
Services, through the Adult Forensic Mental Health Clinic,
provides the mental health services for both facil~ties.5 ECHC
and ECCF inmates may also be admitted to the Erie County Medical
Center's secure Psychiatric Service Unit, guarded by in-hospital
sheriff's deputies.

Legal Standards

CRIPA authorizes the Attorney General to investigate and
take appropriate action to enforce the constitutional rights of
jail inmates and detainees subject to a pattern or practice of
unconstitutional conduct or conditions.
42 U.S.C. § 1997.
When a jurisdiction takes a person into custody and holds
him there against his will, the Constitution imposes upon the
jurisdiction a corresponding duty to assume some responsibility
for the inmate's safety and general well-being.
County of
Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (citing DeShaney v.
Winnebago County Dept. of Social Servs., 489 U.S. 189, 199-200
Generally, county governments must provide persons
confined in a jail with reasonably safe conditions of

The Superintendent of the Holding Center oversees the
Administration, Security, and Programs of both facilities and
reports directly to the Undersheriff, who reports directly to the

National Commission on Correctional Health Care, Health
Services Study:
Erie County Corrections Facilities ("NCCHC 2008
Erie Report"), at 2 (Jan. 10, 2008, revised, Feb. 11, 2008).

- 5 -

See Bell v. Wolfish, 441 U.S. 520 (1979).
Specifically, the Eighth and Fourteenth Amendments require that
inmates, both pre- and post-trial, ~receive adequate food,
clothing, shelter, and medical care." Farmer v. Brennan,
511 U.S. 825, 832 (1994); Benjamin v. Fraser, 343 F.3d 35
(2d. Cir. 2003).
The Eighth Amendment protects prisoners from present,
continuing, and future harm.
See Helling v. McKinney,
509 U.S. 25, 33 (1993).
Prison officials have a duty to protect
inmates from harm caused by other inmates and from excessive
physical force by correctional staff.
See Farmer, 511 U.S. at
833; see also, Ayers v. Coughlin, 780 F. 2d 205, 209 (2d Cir.
1986). The Eighth Amendment further requires that inmates
receive access to adequate medical and mental health care.
Farmer, 511 U.S. at 832; Benjamin, 343 F.3d at 50.
indifference to the serious medical needs of inmates, including
pre-trial detainees, constitutes an unnecessary and wanton
infliction of pain contrary to contemporary standards of decency
and violates the Eighth Amendment.
See Estelle v. Gamble, 429
U.S. 97, 104 (1976); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.
1996) .
The Fourteenth Amendment protects pre-trial detainees from
being punished or exposed to conditions or practices not
reasonably related to the legitimate governmental objectives. of
safety, order, and security. Bell, 441 U.S. at 535-37, 547-48;
Benjamin, 343 F.3d at 50. Although the Eighth Amendment does not
apply to pre-trial detainees, they ~retain at least those
constitutional rights.
. enjoyed by convicted prisoners [under
the Eighth Amendment]." Bell, at 545; Benjamin, 343 F.3d at 50
(~under the Due Process Clause,
[pre-trial detainees] may not be
punished in any manner - neither cruelly and unusually nor
otherwise"); Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996).

Protection From Harm

The Eighth and Fourteenth Amendments forbid excessive
physical force against inmates and pre-trial detainees.
Hudson v. McMillian, 503 U.S. 1 (1992), Farmer, 511 U.S. at 832;
see also, United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999)
(~the right of pre-trial detainees to be free from excessive
force amounting to punishment is protected by the Due Process
Clause of the Fourteenth Amendment.") (citing Bell, 441 U.S. at
535 [citations omitted.]). This is true even when the use of
force does not result in significant injury.
Id. A jailor
prison official who inflicts force maliciously and sadistically
to cause an inmate harm violates the Eighth and Fourteenth

- 6 -

Amendments. See Livingston v. Griffin, 2007 U.S. Dist. Lexis
36941, at *30 (May 21, 2007) (citing Hudson, 503 U.S. at 9) i
Walsh, 194 F.3d at 47-48 (applying Fourteenth Amendment
protections to pre-trial detainees in criminal case against
corrections officer accused of violating inmate's constitutional
Courts have "applied the same Eighth Amendment
standards to the deliberate indifference claims of pre-trial'
detainees." Patrick v. Amicucci, 2007 WL 840124, at *3 (S.D.N.Y.
Mar. 19, 2007).
In determining whether excessive force was used, courts
examine a variety of factors, including:
"[T]he need for the application of force, the
relationship between that need and the amount of force
used, the threat reasonably perceived by the
responsible officials, and any efforts made to temper
the severity of a forceful response."
Hudson, 503 U.S. at 7-8.
In determining whether conduct rises to the level of a
constitutional violation, the Second Circuit requires that the
"prison official have 'knowledge that an inmate faces substantial
risk of serious harm and disregard[ed] that risk by failing to
take reasonable measures to abate the harm.'" Patrick,
2007 WL 840124 at *3 (citing Lee v. Artuz, 2000 WL 231083, at *5
(S.D.N.Y. Feb. 29, 2000)), quoting from Hayes v. N.Y. City Dep't
of Corr., 84 F.3d 614, 620 (2d Cir. 1996). The Second Circuit
also requires that "an injured inmate . . . show not only that he
was exposed to a substantial risk of serious harm but also that
the defendant officials acted with deliberate indifference to his
health or safety." Patrick, 2007 WL 840124 at *3, (citing
Farmer, 511 U.S. at 837). Liability arises where an official
knew of and disregarded "an excessive risk to inmate health or
safety [and is both] aware of facts from which the inference
could be drawn that a substantial risk of harm exists, and he
must also draw the inference." Id.
Prison officials have been
found liable when "they are on notice of a substantial risk of
serious harm to an inmate and fail to take reasonable steps to
protect him [or her]."
The right to be protected from harm includes the right to be
reasonably protected from constant threats of violence.
Farmer, 511 U.S. at 833. This includes protecting inmates from
sexual assault from other inmates and correctional officers.
Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (finding
the "sexual abuse of a prisoner by a corrections officer has no

- 7 -

legitimate penological purpose, and is 'simply not part of the
penalty that criminal offenders pay for their offenses against
society. "') (citing Farmer, 511 U.S. at 834)) i Villante v. Dep't.
of Corr., 786 F.2d 516, 522-23 (2d Cir. 1986) (finding inmate
stated a cause of action for deliberate indifference where guards
failed to protect inmate from sexual threats and abuse by other
inmates)i Rodriguez v. McClenning, 399 F. Supp. 2d 228, 236-238.
(S.D.N.Y. 2005) (finding officer's sexual assault of prisoner
constituted an Eighth Amendment violation) i Noguera v. Hasty,
2001 WL 243535, at *2 (S.D.N.Y. Mar. 12, 2001) i Colman v.
Vasquez, 142 F.Supp. 2d 226, 237 (D.Conn. 2001).
Lastly, "a corrections officer bears an affirmative duty to
intercede on behalf of an inmate when the officer witnesses other
officers maliciously beating that inmate in violation of the
inmate's Eighth [and Fourteenth] Amendment rights." Jones v.
HufC 789 F. Supp. 526, 535 (N.D.N.Y. 1992) (citing O'Neill v.
Krzeminski, 839 F.2d 9, 11 (2d Cir: 1988)) i see also, Walsh,
194 F.3d at 48 (holding "Hudson analysis is applicable to
excessive use of force claims brought under the Fourteenth
Amendment. II) •
"The duty arises if the officer has a reasonable
opportunity to intercede." Id. (citing O'Neill, 839 F.2d at 11).

Medical and Mental Health Care

The Constitution requires that prison officials address
inmates' serious medical and mental health needs.
429 U.S. at 104. Officials act with deliberate indifference when
an inmate needs serious medical or mental health care and the
officials fail to, or refuse to, obtain or provide that care.
Id.i see also, Hathaway v. Coughlin, 37 F. 3d 63 (2d Cir. 1994) i
Kaminsky v. Rosenblum, 929 F. 2d' 922 (2d Cir. 1991) i Chance v.
Armstrong, 143 F. 3d 698 (2d Cir. 1988). The "deliberate
indifference to a prisoner's serious medical needs constitutes
the 'unnecessary and wanton infliction of pain'" in violation of
the Eighth Amendment. Estelle, at 104 (citation omitted). This
includes protecting prisoners whose health problems are
"'sufficiently imminent' and 'sure or very likely to cause
serious illness and needless suffering in the next week or month
or year. '" Young v. Coughlin, 1998 U.S. Dist. LEXIS 764, at *11
(S.D.N.Y. Jan. 29, 1998) (citing Helling, 509 U.S. at 33).
The constitutional responsibility to provide minimally
sufficient medical care includes treatment of psychiatric or
mental health illnesses. Langley v. Coughlin, 888 F.2d 252, 254
(2d Cir. 1989).
Prison officials have an obligation to protect
an inmate from self-inflicted injury where the prison official




knew or had reason to know "of a potential suicide risk to an
"Eze v. Higgins, 1996 WL 861935, at *7 (W.D.N.Y.
1996) (citing Hudson, 468 U.S. at 526-27(1984)).
officials act with a deliberate indifference to the risk of
suicide when they fail "to discover an individual's suicidal
tendencies .
[or] could have discovered and have been aware
of the suicidal tendenci~s, but could be deliberately indifferent
in the manner by which they respond to the recognized risk of
"Kelsey v. City of New York, 2006 U.S. Dist.
LEXIS 91977, at *16 (E.D.N.Y. Dec. 18, 2006) (citing Rellergert
v. Cape Girardeau County, 924 F.2d 794, 796 (8th Cir. 1991)).


Inmates are constitutionally entitled to environmental
conditions that do not pose serious risks to health and safety,
including deficient sanitation, inadequate fire safety,
inadequate ventilation, and pest infestation.
343 F.3d at 52 (affirming district court findings that
"inadequate ventilation, lighting, and exposure to extremes of
temperature violated the detainees' constitutional rights") i
Harris v. Westchester County Dep't of Corr., 2008 U.S. Dist.
LEXIS 28372, at *18 (S.D.N.Y. Apr. 2, 2008) (finding a leaking
ceiling an "unsafe prison condition") .
In the Second Circuit, "challenges by pre-trial detainees
'to the environmental conditions of their confinement are
properly reviewed under the Due Process Clause of the Fourteenth
Amendment, rather than the Cruel and Unusual Punishment Clause of
the Eighth.'" Harris, 2008 U.S. Dist. LEXIS at *17, citing
Benjamin, 343 F.3d at 49-50.
"Where a pre-trial detainee alleges
'a protracted failure to provide safe prison conditions, the
deliberate indifference standard does not require the detainees
to show anything more than actual or imminent substantial harm.'"
Harris, 2008 U.S. Dist. LEXIS at *17, citing Benjamin, 343 F.3d
at 51 (emphasis omitted). Challenges by sentenced inmates to
environmental conditions of confinement, however, are protected
by the Eighth Amendment, and in order for an inmate to prevail on
an environmental conditions of confinement claim, an inmate must
meet the deliberate indifference standard.
See Hathaway, 37 F.3d
at 66.


The ECSO and JMD's administration of ECHC and ECCF is
woefully inadequate and has resulted in a paftern of serious harm
to inmates, including death.
We find that the County, ECSO, JMD,


9 -

and ECDMH fail to provide adequate suicide preventionj mental
heal th care j medical care j p"rotection from harmj and safe and
sanitary environmental conditions.
In making these findings, we
are cognizant that the County has received similar notice
regarding conditions in ECHC and ECCF from the New York State
Commission on Corrections ("NYSCC") and the National Commission
on Correctional Health Care ("NCCHC") on multiple occasions, but
has yet to remedy these issues. 6

Inadequate Suicide Prevention

Constitutional requirements mandate the development of
suicide prevention standards.
These standards require:
(1) an
appropriate policy and procedurej (2) education and training for
all staff membersj (3) appropriate screening to assess suicide
riskj (4) appropriate housing for those identified as at riskj
(5) appropriate supervision, observation, and monitoring of those
inmates so identifiedj (6) appropriate referrals to mental health
providers and facilitiesj (7) appropriate communication between
correctional health care personnel and correctional personnelj
(8) appropriate intervention addressing procedures of how to
handle a suicide in progressj and (9) appropriate notification,
reporting, and review if a suicide does occur.
ECHC and ECCF's current suicide prevention practices do not
comport with generally accepted standards of correctional mental
health care. Although the policies we reviewed appear sound, it
is clear by the number of recent suicides and attempted suicides
that there are serious problems with how the policy is

See,~, New York State Commission on Corrections,
Minimum Standards Evaluation - Erie County Jail Management
Division ("NYSCC 2006 Evaluation") (2006) j New York State
Commission on Corrections Erie County Holding Center Cycle 2
Evaluation, Apr. 30, 2007 ("NYSCC ECHC Cycle 2 Evaluation Apr.
2007") i New York State Commission on Corrections Erie County
Holding Center Cycle 2 Evaluation, Aug. 6, 2007 ("NYSCC ECHC
Cycle 2 Evaluation Aug. 2007"); New York State Commission on
Corrections ECHC Phase 2 Evaluation, Apr. 2008; National
Commission on Correctional Health Care, Health Services Study:
Erie County Corrections Facilities ("NCCHC 2008 Erie
Report") (Jan. 10, 2008, revised, Feb. 11, 2008) j and numerous
letters from the NYSCC to Erie officials, cited throughout.

- 10 implemented and followed. 7 Moreover, despite a 2008 NCCHC
warning, the County continues to house suicidal inmates in unsafe
cells that allow an inmate multiple ways to facilitate committing
suicide, including: using steel beds, wall plates removed from
the wall, accessible grab bars, and bars on windows. 8 ECHC
inmates have exploited cell deficiencies, incorporating them into
their suicide attempts. Since 2003, at least 23 inmates either
committed, or attempted to commit, suicide, or took steps that
demonstrated suicidal ideation. Between 2007-2008 there were
three suicides and at least ten attempted suicides. Below, we
provide examples of the County's inability to supervise inmates,
identify inmates at risk for suicide, correct deficiencies in
cells that facilitate suicide attempts, and prevent likely
suicide attempts.

ECHC inmates have committed suicide by hanging
themselves from air vents using bed sheets.
In 2008
alone, two inmates died in such a manner, raising the
total to over 15 inmates who have committed, or
attempted to commit, suicide in a similar fashion since


In the past two years, more than five inmates who
attempted suicide by hanging or self-strangulation were
unsuccessful only because a guard or another inmate
discovered the attempt and cut down the self-made noose
or otherwise removed the fabric from around the
inmate's neck.
In one instance, ECHC deputies
discovered a distraught inmate in his cell only after
the rope broke during his attempt to hang himself.

For example, the Suicide Prevention Policy requires
that inmates housed in Constant Observation receive
uninterrupted, personal visual observation. Yet, inmates held in
constant observation are still finding ways to hide contraband,
such .as a bullet.
Similarly, the policy requires that the
dispensation of psychotropic medication be adequately monitored,
yet one inmate attempted suicide by ingesting another inmate's
medication, while yet another inmate hoarded his medication for
weeks without notice.

NCCHC 2008 Erie Report, supra, n. 5, at 10 (~The cells
used to house suicidal inmates were not 'suicide-proof.'
were multiple ways to facilitate committing suicide, including
using the steel beds, wall plates that are lifted from the wall,
handicapped bars, bars on windows, etc.").

- 11 •

In December 2008, an ECHC inmate attempted suicide by
hanging. This was the inmate's third suicide attempt.


In March 2008, an ECHC inmate committed suicide by
hanging, despite a warning from the inmate's family
that the inmate could be suicidal.


In February 2008, a 17-year-old ECHC inmate attempted
suicide by hanging. Two other inmates grabbed his legs
and successfully untied the sheets from the bars.


In November 2007, an ECHC inmate attempted suicide
while under constant observation. Despite the suicide
attempt, ECHC officials released the inmate into
general population, where he again attempted suicide
six days after his earlier attempt.


In May 2007, ECHC deputies found an inmate unconscious
on the floor of his cell after he attempted suicide by
ingesting a dangerous quantity of another inmate's
quetiapine. 9 Deputies found a suicide note in his
cell, and ECHC documents do not indicate whether the
inmate ever regained consciousness.


In January 2007, an ECHC inmate committed suicide in
view of deputies by diving off a 15-foot railing in the
common area. Upon admission to ECHC, the inmate was
reportedly evaluated by forensic staff and determined
not to be a suicide risk.

In addition to suicides and attempted suicides, we found
many examples of inmates who engaged in self-injurious behavior,
including banging their heads against the wall, cutting
themselves with metal and glass objects, and verbally expressing
a desire to die. Documentation provided by the County fails to
indicate that these inmates were referred for mental health
assessments or further suicide screening.
Furthermore, despite
prior warnings from the NYSCC, the County's facilities provide
ready access to a number of environmental hazards such as screws,

A psychotropic medication used to treat the sYmptoms of
psychotic conditions such as schizophrenia and bipolar disorder.

- 12 -

nuts, and bolts on chairs that could cause injury or be removed
and used as a weapon. 10 For example:

In October 2007, ECHC deputies found an inmate, who had
attempted suicide on a prior occasion, holding a broken
light bulb to his neck. l l


In September 2007, deputies witnessed an inmate smash
his cell window and cut his arm with a broken piece of
glass. 12


In June 2007, an ECHC inmate verbally threatened
self-harm after he flooded his cell and smeared feces
on himself and the cell wall. Deputies sent the inmate
for a medical examination regarding injury to his eye.
There is no indication in the materials provided by the
County that the inmate received any psychiatric


In February 2007, ECHC deputies discovered an inmate
hoarding 38 pills he was to be taking three times each
day to treat high blood pressure. Deputies did not
refer the inmate for a psychiatric evaluation because
the inmate reportedly indicated he did not wish to harm

The availability of dangerous implements and numerous
examples of self-injurious behavior amplify the County's
inability to monitor and supervise inmates.
The examples also
illustrate the County's inability or unwillingness to refer
inmates for appropriate mental health treatment.
Given the
number of suicides and attempted suicides at these facilities, at
least five of which occurred following the release of the NCCHC
2008 Erie Report placing the County on notice of such issues, it
is evident that County officials are deliberately indifferent and
have not taken these incidents or the recommendations of the
NYSCC and NCCHC seriously.

NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6,
at 4; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 6.
Subsequently, this inmate was interviewed by forensic
staff, who placed the inmate on constant observation.
Subsequently, this inmate was interviewed by forensic
staff, who placed the inmate on constant observation.

- 13 -


Inadequate Mental Health Care

ECDMH fails to provide inmates with adequate mental health
ECHC and ECCF inmates require mental health assessments
and treatment to avoid the unnecessary suffering of acute and
chronic episodes of mental illness. Generally accepted
correctional mental health care standards require that a
physician see an inmate usually before, but clearly shortly
after, a prescription for psychotropic medication is written so
that the physician can evaluate whether the medication should be
maintained and to assess the medication order for proper dosage
and effectiveness.
Inmates who remain untreated, or who are
treated without being seen by a physician, may suffer from a
worsening of their sYmptoms, including suicidal and homicidal
thoughts, or from the potentially lethal side effects of
An alarming example of deficient mental health care is the
death of inmate Jimmy Roberts. 13 On May 19, 2007, Mr. Roberts
died of pneumonia brought on by starvation and dehydration after
spending four months in ECHC.
ECHC staff ignored Mr. Roberts'
deteriorating behavior despite clear signs of mental illness and
decompensation, such as splashing urine and spreading feces on
his face.
The NYSCC investigation of Mr. Roberts' death found
that ECHC officials failed to identify Mr. Roberts' medical
condition and take the necessary steps to prevent self-injurious
behavior. 14 Moreover, the NYSCC cited several incidents that
should have alerted the medical staff to Mr. Roberts'
decompensation (~, throwing food, rolling 'in feces).
also found that despite Mr. Roberts' increasing psychotic
behavior, the ECHC physician failed to take any action to arrange
for critically needed care. 1S The NYSCC found ECHC's care of
Mr. Roberts inadequate, rising to the level of professional
misconduct. 16 The NYSCC concluded that the current medical
department at the facility is ~incapable of providing medical


The name


Roberts" is a pseudonYm.

New York State Commission on Corrections, Findings in
the Matter of the Death of [Jimmie Roberts], Jan. 10, 2008
(~NYSCC [Roberts] Report")


Id. at 6-9.


Id. at 6.

- 14 evaluation and treatment" sufficiently to treat inmates who are
seriou·sly ill. 17

Inadequate Protection From Harm

Corrections officials must take reasonable steps to provide
conditions" of confinement. Farmer, 511 U.S. at 832.
Providing humane conditions requires that a corrections system
satisfy inmates' basic needs, such as their need for safety.
Additionally, jail officials have a duty to take reasonable steps
to protect inmates from physical abuse.

To ensure reasonably safe conditions, officials must take
measures to prevent the unnecessary and inappropriate use of
force by staff. Officials must also take reasonable steps to
protect inmates from violence at the hands of other inmates.
addition, officials must provide adequate systems to investigate
incidents of harm, including staff misconduct and alleged
physical abuse of inmates. Finally, a jail has an obligation to
protect vulnerable inmates from harm, such as those who are at
risk of suicide or at risk of harm from other inmates.
For the
reasons set forth below, ECHC and ECCF fail to meet
constitutional standards in all of these regards.

Deficient Policies and Procedures

Overall Content and Structure of ECHC and
ECCF's Policies and Procedures

Policies and procedures are the primary means by which jail
management communicate their standards and expectations.
policies and procedures should be current, accessible to all
correctional officers and staff, and consistent with relevant
legal standards and contemporary correctional practices.
Typically, correctional institutions have a uniform policy that
governs the Jail Administration.
The uniform policy may contain
post orders, much like the ECHC Manual contains, that are
specific to areas such as intake booking and court hold. Most
importantly, however, the uniform policy would provide
operational guidance on, inter alia, the use of force, use of
restraints, use of chemical agents, suicide prevention, and the
grievance process. These uniform policies would be enforced
throughout both facilities and all Jail Staff would be trained on
one set of operational guidelines. Failure to do so may allow
for informal practices to flourish, thus making it difficult to

Id. at 7.

- 15 monitor the appropriate application of the institution's
governing policies.
ECSO provided us with a copy of the Policies and Procedure
Manuals (collectively, the ~Manuals") for both ECHC (~ECHC
Manual") and ECCF (~ECCF Manual"). The ECHC Manual is dated
January 29, 2005, while the ECCF Manual is dated October 7, 2003.
A review of the Manuals indicates that many sections are
outdated, and many have not been updated in several years.
example, the ECCF use of force policy, Policy 04-09-00 (Physical
Force/Corporal Punishment), was last updated in 1991. Similarly
outdated are ECCF's suicide prevention screening guidelines, 0903-01, updated in 1990; restraint policy, 04-09-01, updated in
1997; and grievance policy, 04-11-00, updated in 1999. ECHC
policies are similarly dated (i.e., Use of Firearms/Force Report,
JMD 04.03.01, updated in 2002; and Contraband Control, JMD 05-0390, updated in 2003). Notably, in 2004, the ECSO's JMD enacted
JMD 02.20.00, requiring the annual review of JMD Policy and
Procedures concerning ~Classification," ~Grievance," and ~Suicide
Prevention." We are unable to determine, based on the documents
that were produced by the County in February 2008 and the
County's continued refusal to cooperate with our investigation,
whether the County has reviewed or updated these manuals; the
date on the materials we received suggests that they have not.
Accordingly, we must assume that they have not been updated.
Moreover, the organization of the Manuals is confusing.
is our understanding that the ECSO has custodial responsibilities
over both ECHC and ECCF and that the JMD oversees the operation
of the facilities.
Given this arrangement, it is unclear why
there are individual, and dissimilar, manuals for ECHC and ECCF.
For example, while the ECCF Manual contains policies on the Use
of Force, the ECHC Manual does not,18 and while Spanish-speaking
inmates at ECHC are not provided a translated Inmate Handbook,
Spanish-speaking inmates at ECCF are.
See infra, Section II.C.9.
Similarly, it is unclear why there are different inmate handbooks
for each facility.19 The NYSCC noted this discrepancy in its
April 2008 Jail Evaluation, finding deficiencies in the
disciplinary sanctions of unsentenced inmates who were housed at
ECCF, stating that these inmates who were ~transferred to the

The ECHC Manual has a Use of Firearms/Force Report
Policy, JMD 04.03.01; however, it is less a policy on appropriate
uses of force and more a policy on reporting the use of force.
ECHC has an Inmate Handbook and ECCF has an Inmate Code
of Conduct. See infra, Section II.C.9.

- 16 -

Holding Center for disciplinary reasons were having their
disciplinary hearing at the Holding Center,"20 subject to ECHC's
inmate rule book and not the ECCF inmate rule book.
It further
found that the two rule books differed in classes of violations
and sanctions. 21 The NYSCC recommended that JMD "consider
developing and implementing a single inmate rule book" for both
facili ties. 22

Deficient Use of Force Policies and

While the use of force is sometimes necessary in a
correctional facility, the Constitution forbids excessive
physical force against inmates. A determination of whether force
is used appropriately requires an evaluation of the need for the
use of force, the relationship between that need and the amount
of force used, the seriousness of the threat reasonably believed
to exist, and efforts made to temper the severity of a forceful
response. Hudson v. McMillian, 503 U.S. I, 7 (1992). Generally
accepted correctional practices provide that appropriate uses of
force in a given circumstance should include a continuum of
interventions, and that the amount of force used should not be
disproportionate to the threat posed by the inmate. Absent
exigent circumstances, lesser forms of intervention, such as
issuing disciplinary infractions or passive escorts, should be
used or considered prior to more serious and forceful
interventions. This guidance is typically found in a use of
force policy. Failure to provide staff with operational guidance
on when the use of force is appropriate is a gross departure from
generally accepted correctional standards.
The ECHC's Manual fails to provide operational guidance on
the use of force.
In contrast with generally accepted
corrections practices, ECHC has no operating policy governing the
application of force at ECHC, and no system in place to monitor
the use of force.
The ECHC Manual makes several vague references
to a "Response Team," apparently utilized to quell emergency
inmate disturbances; however, there is no policy governing the
team's assembly. ECHC's use of force and its use of the Response
Team, without any operating policies and procedures, fails to

New York State Commission of Correction ECHC Phase 2
Evaluation, Apr. 2008, supra, n. 6, at 4.

- 17 -

provide inmates with sufficient protection from harm and creates
a climate where the unfettered use of force is permissible
because there are no operating guidelines holding anyone
While the ECHC Manual makes several vague references to the
"Response Team," the Manual itself does not provide a policy
describing the composition of this team, how it is assembled, its
purpose and specific use, or how members of this team are
trained, if at all.
It is also unclear what the exact purpose of
the Response Team is; however, JMD 04.03.01 provides that a use
of force report must be prepared whenever the Response Team is
"required to control an inmate situation wherein force may be
used to quell the situation." The policy, however, does not
explain what is meant by "control" and "inmate situation," nor
does it discuss the appropriate or permissible uses of force by
the Response Team. See JMD 04.03.01. Moreover, JMD 06.01.02
makes reference to a "secondary response team" that will be
assembled in the event of a riot or hostage situation; again,
limited guidance is given on the composition of this "secondary
response team." See JMD 06.01.02.
Employing a special
operations team, like the Response Team, that is to be used in
emergency situations without operational guidance as to its
structure and use, is a gross departure from generally accepted
correctional standards.
Our review of the ECHC Manual did not reveal a Use of Force
policy that directs Jail Staff as to when the use of force is
appropriate, and what types of force should be used.
contrast, as discussed above, the ECCF manual provides guidance
on the use of force, albeit dated.
See ECCF Manual, Physical
Force/Corporal Punishment, 04.09.00. While the ECHC Manual does
contain guidance on the planned use of force, Policy JMD
06.01.03, this policy is strictly limited to planned uses of
force initiated by the Quick Entry Team ("QET"). Moreover, this
policy is located in the Emergency Preparedness section of the
ECHC Manual, further limiting its application to situational
The ECHC Manual also contains guidance on the
reporting of force; however, this policy fails to provide
operational guidance on when the use of force itself is
See ECSO Use of Firearms/Force Report, JMD
The ECHC Manual should provide written operational
guidance on what are legally acceptable uses of force, in keeping
with Constitutional, federal, and state guidelines, as well as
generally accepted correctional standards. However, the ECHC
Manual does not provide any language for when the use of force,
absent an emergency situation, is permissible.

- 18 -


Excessive Use of Force

Our investigation revealed that inmates at ECHC and ECCF are
regularly subjected to inappropriate, excessive and degrading
uses of physical force.
The following are illustrative examples:

Inmates we interviewed consistently reported that ECSO
deputies would take ECHC inmates on "elevator rides,"
during which deputies would reportedly physically
assault inmates.
Inmates consistently described
incidents in which deputies would take handcuffed
inmates to an isolated elevator (which was not equipped
with a security camera) where they would be beaten and
had their heads slammed against the elevator walls.


In August 2008, an ECHC inmate was handcuffed,
stripped, and cavity searched by a deputy who then used
the same rubber gloves to search other inmates. When
the inmate requested that the deputy change his gloves,
which were dirty with blood and fecal matter, the
deputy struck the inmate on the head and forcibly
performed the search, stating that he "did not have to
do a damn thing."


In 2008, according to inmate interviews, ECSO deputies
ordered other inmates to go into the cell of an inmate
who refused to shower, pull the inmate out of the cell,
strip him and wash him on the floor of the pod common
area with rags and a bucket of water.


In January 2008, ECSO deputies reportedly targeted
inmates who were screaming as a result of the New Year.
Inmates told us that, in the case of one of the
inmates, the deputies punched, kicked, and reportedly
tied a sheet around the inmate's neck, threatening to
hang him. The inmate was then shackled and taken to an
isolation cell, where the deputies continued to punch
and kick him.


In August 2007, during the booking process, ECHC
deputies struck a pregnant inmate in the face, threw
her to the ground, and kneed her in the side of her
stomach. When she informed deputies that she was
pregnant, the deputies allegedly replied that they
thought she was fat, not pregnant. The inmate lost her
two front teeth as a result of the assault.

- 19 -


An ECCF inmate died of a stroke in March 2007, after
suffering a brain injury when ECCF deputies smashed his
head against a wall. The inmate requested medical help
following the incident, but was ignored despite
noticeable signs of injury (dragging his foot when
walking and continually dropping things) .


In April 2006, an ECHC inmate (held in the facility for
urinating in public) was knocked unconscious and
sUptained a collapsed lung, fractures to six ribs, and'
a spleen injury (resulting in removal) as a result of a
beating by County deputies. The inmate alleges that
the incident arose from his attempt to air out his cell
from the odor of other inmates' defecation and vomit.
3. Inadequate Reporting of Use of Force

Effective measures to prevent excessive and inappropriate
uses of force include the adequate reporting of information to
permit the identification of potential problem cases and
effective internal investigations. We find that ECHC fails to
elicit adequate information about use of force incidents, making
management review ineffective. Generally accepted correctional
standards require written reports of uses of force.
reports should be submitted to administrative staff for review.
Although the County of Erie produced incident reports fo~ ECHC,
it did not produce any of the use of force forms that reportedly
accompany these reports.
The incident reports themselves
indicate whether a use of force report was filed under the
"Action Taken" section of the Incident Report. While most of the
incident reports where force was used indicated that a use of
force form was submitted, there were several incidents where
force was clearly used, but the submission of a use of force form
was not indicated. For example:


An October 2007 report indicates that two deputies were
injured subduing an inmate who attempted to strike a
deputy. While the report indicates that the deputies
secured the inmate on the floor with handcuffs, there
is no indication what type or level of force the
deputies used to achieve compliance.


Similarly, a September 2007 incident report describing
an incident in which two deputies were injured subduing
an inmate who struck a deputy, indicates only that the
deputies took the inmate to the ground and secured him
in handcuffs.
There is no indication what type or
level of force the deputies used to achieve compliance.

- 21 assaults, including sexual assaults.
In many of the incidents of
inmate-on-inmate violence, ECSO deputies on duty were not
present, giving inmates ample opportunity to fight.
following examples are illustrative:

On December 1, 2007, an inmate was held down by another
inmate and punched and kicked by a third inmate. The
victimized inmate indicated that he was attacked
be.cause he was held on sodomy charges.


On April 12, 2007, an inmate was grabbed by the throat
and punched in the face by three other inmates,
suffering a swollen right eye and left cheek as a
result of the attack. According to the County's
records, the deputy on duty was taking a "bathroom
break" when the assault occurred.


On. March 28, 2007, deputies discovered an inmate, who
had been in a fight with another inmate, lying on the
floor, bleeding from a head wound.


On February 2, 2007, an inmate was stabbed with a
broken broom handle.
The deputy on duty reported that
he did not see the assault because he was moving a box
into the elevator at the time.


On January 24, 2008, an inmate was sexually harassed
and assaulted by three inmates who pulled his pants
down, slapped him on the buttocks, called him "honey,"
grabbed towards his genitalia in a teasing manner, and
grabbed his nipples.
There is no indication from this
incident report whether any of the aggressors were
disciplined for their actions.

ECSO deputies do not appear to consistently intervene to
stop inmate violence.
There have been several incidents in which
deputies either watched an altercation escalate from a verbal
disagreement to ~ physical altercation, or allowed other inmates
to break up a fight and detain the inmates until additional
deputies arrived.
For example:

On November 26, 2007, a deputy witnessed an inmate
throw a chair across the law library at another inmate
because he thought the other inmate was a "snitch."


On November 19, 2007, a deputy witnessed two inmates
arguing and then fighting. ,He also witnessed a third
inmate join the fight and punch and kick another inmate

- 20 -


An August 7, 2007 report indicates that an ECHC inmate
who struck a deputy was secured by the response team,
placed in mechanical restraints, and put into an
isolation cell. However, there is no information on
the force secure the inmate or the length of
time he was restrained, nor is there any indication
whether medical clearance was secured before the inmate
was placed in restraints.

JMD's failure to ensure complete use of force reporting
prevents adequate monitoring of the use of force within its
facilities. As a result, the ECSO is unable to accurately gauge
the amount of force used and whether such force is appropriately

Inadequate and Ineffective Inmate Supervision

Deputy-Encouraged Violence

ECSO deputies npt only fail to protect inmates from· harm,
but, as our investigation revealed, they affirmatively place
inmates in harm's way by pitting inmates against one another in
combat. We have received reports of ECSO deputies relying on
inmates to discipline other inmates with force.
These inmates,
sometimes referred to as the deputies' "pet," receive extra
privileges, such as extra meals and hygiene products.
Alarmingly, we have learned of ECSO deputies harassing inmates
charged with a sexual offense. We have received numerous reports
of deputies openly announcing the charges of alleged sexual
offenders, including describing inmates as "Rape-Os." Deputies
would reportedly announce an inmate's charge in the presence of
other inmates and then leave the room, allowing the other inmates
an opportunity to physically assault the alleged sexual offender.

Inmate-on-Inmate Violence

Insufficient inmate supervision is a serious problem at ECHC
and ECCF. The County is well aware of this issue.
Brian D. Doyle has publicly stated that ECHC does not have
sufficient "security staff.,,23 Indeed, our review of the
County's own incident reports confirms 'this admission.
reports revealed that between January 1, 2007 and February 9,
2008, there were over 70 reported incidents of inmate-on-inmate
Gene Warner, Inmate Well-Being Comes Under Scrutiny;
Medical Care Limited at County Facilities, Buffalo News,
Aug. 5, 2007.

- 22 -

in the head.
There is no indication in the report
whether this deputy attempted to break up the fight or
even intervened during the argument, before it
escalated to a fight.

On October 30, 2007, a deputy witnessed an inmate
strike another inmate who had been knocked to the
When the attacking inmate refused the deputy's
order to stop fighting, two other inmates interceded to
restrain the attacker until additional deputies arrived
on the scene.

As the incident reports demonstrate, and as our interviews
consistently confirmed, inmates who are not adequately supervised
have opportunities to engage in fights. The situation in the
County facilities appears so volatile that minor slights appear
to instigate physical altercations. We noted numerous instances
in which inmates fought one another for inconsequential reasons,
such as: one inmate denied another inmate access to a newspaper,
an inmate cut ahead of another inmate in the lunch line, and one
inmate told another inmate that he had "smelly feet." Each of
these exchanges led to fights among inmates. As the above
examples demonstrate, ECSO and JMD are not meeting constitutional
obligations to provide for the safety and well-being of inmates.

Unprofessional and Provocative Attitude
Towards lrunates

Establishing a professional environment in a correctional
setting is critical to maintaining the safety and security of
inmates and staff.
In addition to reports that deputies have
encouraged inmate violence, we have also learned that deputy
supervisors at ECCF have permitted a culture of unprofessional
and provocative attitude towards inmates to flourish within the
Notably, in June 2008 the NYSCC cited ECCF Jail staff for
"unprofessional and provocative attitude toward the inmate
population"25 for posting informational sheets labeled
"Frequently Asked Questions" within the dormitories housing
pre-trial detainees that contained such comments as "Deputies are
here to tell you what to do;" "Deputies decide when you go to

Letter from NYSCC to Sheriff Timothy Howard, dated
June 5, 2008, Cycle 3 Evaluation, at 12.

- 23 -

exercise;,,26 and "How do you become a Lima unit porter? Don't ask
we will ask yoU.,,27 The NYSCC found these sheets to be
unprofessional and that ECSO should view these statements "as an
embarrassment to the corrections profession."28 Moreover, the
NYSCC found that the "condescending tone ... perpetuates a
negative work environment, ,,29 and the failure of "deputy sheriff
supervisors ... to remove such posting and take further action is
unconscionable.,,30 These "informational sheets," coupled by the
reports of deputy encouraged violence (see Section II.C.4.a,
supra) and sexual misconduct (see Section II.C.6, infra) further
illustrates a culture that undervalues the safety and well-being
of inmates housed within its facility.
Indeed, a condescending
attitude towards an inmate population may lead security staff to
believe that they have an unfettered control over inmates that
allow them to engage in unconstitutional behavior, such as
encouraging inmate violence and engaging in inappropriate sexual
conduct with inmates.

Inadequate Division of Supervisory

ECCF houses both pre- and-post-trial inmates.
ECSO employs
two separate work forces to supervise "unsentenced" and
"sentenced" inmates at ECCF.
Specifically, deputies are assigned
to "unsentenced inmates," while correctional officers are
assigned to "sentenced inmates."31 The NYSCC found this
arrangement "jeopardizes the safety and security of staff and
inmates at the Correctional Facility."32 According to NYSCC,
because the security staff are members of two distinct unions,
based on their work assignment, there is confusion over which
union or security detail has specific control over a particular
Indeed, NYSCC's staff "witnessed members of both unions













Letter from NYSCC to Sheriff Timothy Howard, dated
June 5, 2008, Cycle 3 Evaluation, at 11.

- 24 -

openly debating and arguing [over] which union has authority over
an inmate."33 The NYSCC further noted that each work force has
different break schedules and different work hours, "affect [ing]
the lock-in time of inmates during the count." Moreover, while
both work forces are "accountable to the Chief and Superintendent
of the Correctional Facility," "each union member is only
accountable to the supervisors in their respective unions. "34,
Accountability and supervisory responsibility was a noted problem
where, for example, "during evening, 'nights, and weekends" the
highest ranking employee for deputies "is a Sergeant" whereas the
highest ranking corrections officer is "the'Tour Commander."35
This confusion in supervisory responsibilities amplifies the
deficiencies in inmate supervision.

Inadequate Classification

ECHC and ECCF have an inadequate classification system, and
it contributes to unsafe conditions at the facilities.
accepted correctional standards require separation of problematic
inmates and those who are more vulnerable to violence and abuse
from the general population.
ECHC and ECCF's failure to do so
makes supervision more difficult and increases the risk of harm
to both staff and inmates.
The County's classification system is flawed and fails to
adequately assess critical factors such as an inmate's criminal
history while in custody, escape history, and likelihood of
victimization. While the County's classification instrument does
identify these 'areas, the JMD fails to provide operational
guidance on how to address such issues. As the NYSCC noted, this
is a major concern because the classification instrument
influences how inmates are classified at ECHC and ECCF; "the
quality of any classification determination and subsequent
housing assignment is suspect" because "classification reviews
and housing assignments are substantially based on outcomes of a
flawed classification system."36 While officials at ECHC and
ECCF cannot be expected to prevent all altercations between
inmates, the Constitution requires correctional officers and
County officials to take reasonable steps to protect inmates








NYSCC 2006 Evaluation, supra, n. 6, at 21, 24.




from violence. Disturbingly, the County was made aware of the
inadequacies of its classification through an April 2007 NYSCC
report, followed by an August 2007 NYSCC report indicating that
the issues remained unaddressed. 37
As an example of the problems that an inadequate
classification system can lead to, we learned of a situation in
August 2008 in which a 16 year-old boy was reportedly placed in
the "bullpen" at ECHC with adults.
Placed among an adult
population, this vulnerable youth was reportedly attacked and
sexually assaulted in the middle of the night.

Sexual Misconduct

Our review of investigative reports revealed incidents of
sexual misconduct at ECHC and ECCF resulting from staff-on-inmate
and inmate-on-inmate interaction.
For example:

On September 16, 2008, a male ECCF deputy resigned
after engaging in inappropriate sexual conduct with a
female inmate.


A male ECCF deputy reportedly sexually harassed several
inmates in his unit by staring at the male inmates
while they were in the shower.
This deputy reportedly
engaged in this conduct frequently and regularly.
at least one instance, the deputy placed his hand on an
inmate who attempted to leave the shower.
The deputy
reportedly admired the inmate's physique and told him,
"we should work out together."


A male ECCF deputy reportedly engaged in lewd conduct
with an inmate, placing his fingers through his uniform
pants zipper to simulate fellatio and asking the inmate
"do you want to suck it?"


On September 9, 2007, a female inmate accused a male
deputy of rape. The inmate was sent to the hospital
and subsequently moved to a different unit within ECHC.
There is no indication of whether an investigation was
conducted following the report of rape, nor whether the
deputy was, or would be, moved from the women's ward
while the charges were being investigated.

NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6,
at 5; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 8.

- 26 7.

Contraband and Vandalism

Another indicator of inadequate inmate supervision is the
amount of dangerous contraband recovered from the housing units
and the ease with which inmates can fabricate homemade weapons.
Due to the dilapidated condition of scores of cells shower
areas and various dayroom features inmates have ample material
for fabricating weapons including floor tiles metal from light
fixtures metal from the ventilation system glass from cell
light bulbs electrical wiring l and plumbing fixtures.
have been found with shanks of varying size that are made of
broken glass and metal rods.
Inmates have also been found with
handcuff keys and a syringe and in March 2007 an inmate handed
deput~es a 40-caliber hollow point bullet he found under his
cellmate/s bed. At the timel both inmates were assigned to a
cell designate? for "constant observation." While it is
virtually impossible for any correctional facility to completely
deter inmates from obtaining materials for weapons the problem
at ECHC and ECCF is exacerbated by inadequate supervision.











Grievance System

An inmate grievance system is a fundamental element of a
functional jail system intended to provide a mechanism for
allowing inmates to raise concerns and issues to the
If viewed as credible by inmates it can also
serve as a source of intelligence to staff regarding potential
security breaches as well as staff excessive force or other
misconduct. The grievance system should be readily accessible to
all inmates.
Inmates should be able to file their grievances in
a secure and confidential manner and without the threat of
reprisals. Staff responsible for answering inmate grievances
should do it in a "responsive and prompt manner. We note a number
of serious deficiencies with the inmate grievance process at ECHC
and ECCF.


The grievance system at ECHC and ECCF is inadequate and open
to abuse. NYSCC questioned the integrity of the grievance
program finding the system informal the policies inadequate
and jail officials unwilling to investigate allegations or quick
to categorize grievances as disciplinary and therefore
non-grievable even when they were. 38 We note that the NYSCC has
cited the County for such problems in 2007 and 2008.
Because the





See generally NYSCC ECHC Cycle 2 Evaluation Aug. 2007
n. 6 at 6i NYSCC ECHC Cycle 2 Evaluation Apr. 2007
n. 6 1 at 10i NYSCC 2006 Evaluation supra I n. 6 1 at 28-33.




- 27 -

County provided us with only a very limited number of grievances
for review, it is unclear whether the County has remedied these
Therefore, we must conclude that the NYSCC
findings remain unremedied.
In June 2008, the NYSCC found that
no grievances had been filed by pre-trial detainees housed at
ECCF. 39 This clearly indicates that the grievance system is not
functional, thus depriving the JMD of a valuable source of
information concerning questionable constitutional treatment.
One partial explanation for this is the bifurcated grievance
system that the JMD employs. Specifically, inmates are
instructed to utilize an informal grievance process that
encourages inmates to raise their grievance with Jail Staff and
allow Jail Staff an opportunity to informally resolve the
grievance, rather than submit a formal grievance that is reviewed
by the grievance officer. Although inmates are told that they
may file a formal written grievance at any time, it is impossible
for JMD to account for whether a request for a formal grievance
is actually met.
Encouraging an inmate to pursue a grievance
informally can be problematic in some circumstances, especially
in those instances in which unlawful actions have occurred.
Inmates who may have been subjected to unlawful conduct will,
most likely, be reluctant to seek resolution from those who may
have witnessed or been involved in the very actions that would be
the basis for the grievance. The ECSO's failure to monitor the
application of the grievance system makes it deliberately
indifferent to serious allegations of force, harassment, and
medical care to be ignored. Numerous inmates reported submitting
a grievance, only to have it taken out of the mail slot and
destroyed by deputies.


Access to Infor.mation

Generally accepted correctional standards require that newly
admitted inmates receive an opportunity to learn about the
facility rules and regulations, services that are available,
policies and procedures that affect the inmate, and facility
schedules. Each inmate should receive a facility handbook,
containing all the relevant information, and should have an
opportunity to have the information explained to him or her if
the inmate cannot read. Typically, facilities have an
orientation procedure as a part of the intake processing.

Letter from NYSCC to Sheriff Timothy Howard, dated
June 5, 2008, Cycle 3 Evaluation, at 9.

- 28 It is our understanding that inmates are provided a copy of
either the ECHC Inmate Handbook or the ECCF Code of Conduct upon
arrival at the respective facility.
However, these handbooks are
not necessarily made available in Spanish. While ECCF offers a
Spanish translation of the ECCF Code of Conduct, the translated
version we received in February 2008 was last updated on November
20, 1992; the English version was revised on August 21, 2007.
The County of Erie did not produce a Spanish translated version
of the ECHC Inmate Handbook in response to our request.
In order
for inmates to avail themselves of the programs a facility offers
or familiarize themselves with the rules and regulations within a
given facility, to which they will be held accountable, inmates
must be made aware of facility rules and protocols.
Failure to
do so is inconsistent with generally accepted correctional
standards .

.D. Inadequate Medical Care
ECHC and ECCF officials are responsible for providing
adequate medical care to inmates. A jail may not deny or
intentionally interfere with medical treatment. A delay in
providing medical treatment may be so significant that it amounts
to a denial of treatment. Our investigation revealed that
medical care provided at ECHC and ECCF falls below
constitutionally required standards of care.
One key deficiency is the lack of on-site health care
administrators to manage healthcare services at the facilities.
Although a physician is assigned to all Erie County Detention
facilities, the physician does not monitor the ~appropriateness,
timeliness and responsiveness of care and treatment or review[]
the recommendations for treatment made by health care providers
in the community," and ~[t]he physician is not involved in
quality improvement reviews, training staff, or reviewing policy
and procedures. "40 This level of oversight is critically
important to ensure constitutionally adequate medical care.
example, adequate oversight and management would identify
problems in inmate medical records, provide advice on training,
and assist in the development of policies that are consistent
with generally accepted correctional healthcare standards.
Without this oversight, it is impossible for ECSO and JMD to
attest to the adequacy of medical care within their facilities.
Indeed, the NCCHC could not adequately determine the quality of


NCCHC 2008 Erie Report, supra, n. 5, at 8.

- 29 -

health care for its 2008 review{ because the inmate health
records ,were incomplete. 41
The administration of health care services in ECHC and ECCF
is inadequate { as there are no quality improvement programs or
monitoring procedures in place to internally assess the quality
of heath care at the facilities. 42 Moreover{ ECHC and ECCF
medical policies and procedures fail to provide staff operational
guidance on quality of care. 43 The NYSCC cited both the ECHC and
ECCF in 2007 and 2008 for violating state law and employing
licensed practical nurses 44 ("LPN") without the direction or
supervision of a registered nurse { as required by state law. 45
Specifically{ the NYSCC cited the "incompetent assessment" of an
LPN for returning inmate John Jackson{46 who was suffering from
congestive heart failure{ to his cell -- Mr. Jackson later


Id. at 7.


Id. at 9.

Id. at 8.
NCCHC noted that the policies were "under
revision using the NCCHC Standards to revise the manual."
(Emphasis in the original) .
LPNs care for people who are sick{ injured{
convalescent { or disabled under the direction of physicians and
registered nurses.
LPNs are not to perform '"physical assessments
of patients" or make "independent clinical decisions [or] patient
dispositions without direction from a registered professional
nurse or licensed physician." Letter from the NYSCC to Sheriff
Timothy Howard{ dated Mar. 29{ 2007 (regarding the use of LPNs at
ECCF{ citing Article 139{ New York State Education Law{ Section
6902) .

Letter from the NYSCC to Sheriff Timothy Howard{ dated
May 28{ 2008 (regarding the use of LPNs at ECHC) i Letter from the
NYSCC to Sheriff Timothy Howard { dated Mar. 29{ 2007 (regarding
the use of LPNs at ECCF{ citing Article 139{ New York State
Education Law{ Section 6902) i Letter from the NYSCC to Anthony J.
Billittier III{ M.D.{ Commissioner{ Erie County Department of
Health{ dated Mar. 29{ 2007 (regarding the death of inmate [John
Jackson]) .

The name "John Jackson" is a pseudonYm.




died. 47 Following an investigation into Mr. Jackson's death, the
NYSCC found that the use of LPNs at ECCF, without the supervision
of a registered nurse, was ~commonplace."48 The NYSCC also
criticized ECSO's response to their letter notifying the Jail
that the ~medical care that Mr. Jackson received was negligent
and inadequate."49 The NYSCC's Medical Review Board found that
ECSO's ~flagrantly indifferent and dismissive attitude in
response to a critical incident with a fatal outcome and to the
requirements of state law and regulations are in no small part
causative factors in such outcomes. "50 In May 2008, a little
over a year after this finding, the NYSCC once again cited ECSO
for similar professional misconduct.
This time, ECHC was cited
for employing LPNs without adequate supervision. 51
Through our review of incident reports, documents provided
by the County, and recent state oversight reports, we find ECHC
and ECCF document management of inmate medical records poor and
often incomplete. We note that these problems have persisted for
years, despite the NYSCC placing the County on notice of such
deficiencies since 2005. 52 As recently as early 2008, th~ NCCHC
similarly concluded that the County has, not addressed this
issue. 53 In addition to the 2008 NCCHC finding, we draw

Letter from the NYSCC to Sheriff Timothy Howard, dated
Mar. 29, 2007 (finding the ECSO ~summarily disregarded the facts
that the medical care that Mr. [Jackson] received was negligent
and inadequate") i Letter from the NYSCC to Anthony J. Billittier
III, M.D., Commissioner, Erie County Department of Health, dated
Mar. 2 9, 2 0 07 .
Letter from the NYSCC to Anthony J. Billittier III, MD,
Commissioner, Erie County Department of Health, dated Mar. 29,

Letter from the NYSCC to Sheriff Timothy Howard, dated
Mar. 2 9, 2 0 07 .


Letter from the NYSCC to Sheriff Timothy Howard, dated

May 28, 2008.
Letter from the NYSCC to Sheriff Timothy Howard, dated
Sept. 27, 2005 (citing deficiencies in the maintenance of inmate
medical records) .

NCCHC 2008 Erie Report, supra, n. 5, at 7, 24-25.

- 31 -

additional negative inferences from the County's lack of
cooperation with our investigation by failure to provide us with
the requested inmate medical documents and access to the
Inmates at ECHC and ECCF suffering from serious medical
conditions require continual observation and consistent treatment
and care in order to protect them from harm. The following
examples illustrate that inmates at these facilities are not
receiving adequate medical care.

In December 2007 and January 2008, four inmates
suffered multiple seizures. At least two of the
inmates were told to sleep on the floor, and there is
no indication that any of the inmates received
medication after being treated at the hospital.
One of
the four inmates with a seizure history was transferred
to the hospital after deputies found him lying
unresponsive on the floor. An additional inmate, with
a seizure history prior to detention, was found shaking
on the floor of her cell and was not immediately sent
for a medical evaluation.


In April 2007, ECCF was cited for providing inadequate
dental care to an inmate suffering from pain and a
sensitivity to food and liquids. 54 The Citizens Policy
and Complaint Review Council found that ECCF took too
long to respond to the inmate's request to see a doctor
regarding his pain, finding 21 days unreasonably
long. 55


In March 2007, an ECHC nurse, while delivering
prescribed medication to an inmate, discovered that the
inmate had died due to unknown causes.
Earlier in the
day, the inmate had refused food and requested that his
cell window be opened.

Inadequate Administration of Medication

It appears that ECHC and ECCF nursing staff who store and
administer medication may be untrained in critical areas of
security, accountability, common side effects of medications and

Letter from the NYSCC to Sheriff Timothy Howard, dated
Apr. 24, 2007.

- 32 -

documentation of administration of medicines. Alarmingly, the
County was made aware of this deficiency through NYSCC
evaluations in 2005 and 2006, as well as the NCCHC 2008
evaluation. 56 Further, we received consistent reports from ECCF
inmates that County deputies withhold inmate medication as a
source of intimidation or punishment.
The following examples
illustrate the gravity of the situation:

Despite receiving warnings from State oversight
agencies as recently as 2008, nursing staff fail to
ensure that inmates swallow their medication and fail
to check inmate identification prior to administering
medication. We reviewed· incidents from 2007 in which
an inmate attempted suicide by ingesting another
inmate's psychotropic medication; another inmate
hoarded his medicat.ion for several weeks before
deputies located it on his shelf; and a third inmate
admittedly faked a seizure in order to obtain his
prescription medication.


The NYSCC's review found controlled substances "placed
in a paper bag and stored in the narcotic cabinet after
they have been discontinued or when the inmate has been
discharged ... [and that]
[t]hese controlled
substances are not counted each shift," in violation of
Federal and State laws. 57

Letter from the NYSCC to Sheriff Timothy Howard, dated
July 17, 2006 ("There is an inadequate system for the management
of pharmaceuticals, including controlled substances"); Letter
from NYSCC to Sheriff Patrick Gallivan, dated Apr. 18, 2005
(citing ECSO for not screening detainees); see also, Letter from
the NYSCC to Sheriff Patrick Gallivan, dated Feb. 22, 2005 and
Letter from the NYSCC to Sheriff Timothy Howard, dated Sept. 27,
2005 (both addressing the inadequacy of ECHC's management of
pharmaceuticals) .

Letter from the NYSCC to Sheriff Timothy Howard, dated
July 17, 2006.
In February 2005 ECSD was cited for leaving "two
large boxes of controlled substances unattended in an unsecured
area in the medical unit," in violation of Federal and State laws
that require the restriction of controlled substances "to a
secure area under double lock." Letter from the NYSCC to Sheriff
Patrick Gallivan, dated Feb. 22, 2005.


33 -

The above. examples indicate that procedures for medication
administration at the ECHC and ECCF are not 'consistent with
generally accepted correctional standards.

Inadequate Infection Control

ECHC and ECCF fail to adequately treat, contain, and manage
infectious disease. ECHC and ECCF's management of Tuberculosis
("TB") ,58 Methicillin-resistant Staphylococcus aureus ("MRSA"), 59
and other infectious diseases deviates from generally accepted
correctional medical standards. This failure is dangerous and
places inmates, staff, and the community at unnecessary risk of
serious health problems.
Generally accepted correctional standards for the management
of communicable diseases in correctional facilities require the
development of a management plan. This plan, at a minimum,
should address the screening, diagnosls, and treatment of
HIV/AIDS; Sexually Transmitted Diseases; Hepatitis; MRSA; TB; and
outbreaks of communicable diseases.
ECHC and ECCF, however, have
no written exposure control plan approved by the responsible
physician. 60 The lack of a written exposure control plan has
resulted in deficiencies related to the containment and treatment
of TB and MRSA.
For example, the nursing staff at ECHC have
confirmed that TB PPD testing is not performed on detainees at

TB is a life threatening respiratory ailment commonly
found in correctional facilities.
TB is prevalent in
correctional facilities because of poor circulation or inadequate
ventilation, and the close quarters of a transient population.

MRSA is a potentially dangerous drug-resistant bacteria
that can cause serious systemic illness, permanent disfigurement,
and death. A MRSA infection is sometimes confused by detainees
and medical staff as a spider or insect bite, causing treatment
to be delayed while the infection has time to worsen or spread.
See MRSA is resistant
to common antibiotics, such as methicillin, oxacillin,
penicillin, and amoxicillin. MRSA is almost always spread by
'direct physical contact.
However, spread may also occur through
indirect contact by touching objects such as towels, sheets,
wound dressings, and clothes. MRSA can be difficult to treat and
can progress to life-threatening blood or bone infections.


NCCHC 2008 Erie Report, supra, n. 5, at 10.


34 -

the Holding Center, in contradiction to generally accepted
correctional medical standards. 61 I~deed, we have received
numerous reports from inmates housed at ECHC between 2007 and
2008, confirming that they were not tested for TB upon arrival at
the facility.
Similarly deficient is ECHC's and ECCF's medical
staffs' failure to identify symptoms clinically associated with a
MRSA infection (~, red bumps, rashes, and the. "spider bite")
We have received numerous reports from inmates held at these
facilities who exhibited commonly known signs associated with
MRSA and did not receive treatment.
Moreover, jail medical staff not only fail to screen inmates
when they arrive at the facility and provide adequate
surveillance of infectious diseases; medical staff also do not
provide discharge planning, therefore providing no monitoring for
inmates with communicable or infectious diseases, understood to
be a basic part of generally accepted correctional practices. 62

Environmental Health and Safety Deficiencies

ECHC has severe environmental health and safety problems at
numerous levels of operation. 63 Despite repeated NYSCC citations
for poor sanitation and maintenance, ECSO and JMD have repeatedly
failed to correct the problems.
In 2007, NYSCC found maintenance
and sanitation categorically inadequate throughout ECHC, exposing
inmates and staff to unhealthy and unsafe conditions.
regulators cited ECSO and JMD on several occasions for overall
poor sanitation, finding sanitation conditions "deplorable," with
walls covered in toothpaste and cell bars covered in towels

Letter from NYSCC to Sheriff Timothy Howard, dated
Oct. 10, 2007; Letter from NYSCC to Sheriff Patrick Gallivan,
dated Apr. 18, 2005.

NCCHC 2008 Erie Report, supra, n. 5, at 10.

Given our limited access to inmates held at ECCF, we
are unable to assess whether similar sanitation problems exist at
ECCF to the degree to which they exist at ECHC. We have received
reports, however, that conditions at ECCF are also unsanitary.


35 -

and sheets. 54 NYSCC staff, for example, found a significant
accumulation of Styrofoam food trays and other clutter in the
This is a serious problem, as it can attract insects and
other vermin, as well as allow for the spread of disease.
Maintenance and sanitation are categorically inadequate
throughout the facility, exposing inmates and staff to unhealthy
and unsafe environments as a result. We learned of one inmate
who indicated he was housed, for at least one month, in an ECHC
cell with four inches of standing water due to toilet flooding.
In a correctional setting where inmates and staff are
dependent on maintenance staff for their water, heat, lighting,
and ventilation, it is expected that these issues would be
addressed in a timely manner in order to reduce risks of illness
and injury to inmates and staff alike. That is not the case
NYSCC has cited ECSO and JMD for electrical hazards that
neither correctional officers nor maintenance staff seemed to be
concerned about, despite the potential for harm being readily
In both April and August 2007, the NYSCC found ECHC
supervisors were ~not holding staff accountable for the
sanitation of their assigned housing areas."55 Critical
sanitation deficiencies included the failure of jail staff to
properly secure sanitation equipment and supplies when not in
Inmates have used sanitation equipment, like a broom, as a
In one case, the handle was broken and used to stab
another inmate.
ECSO and JMD were also cited for poor facility maintenance.
The NYSCC found the padding and cushion material on chairs in the
day room were torn or removed, exposing screws, nuts, and bolts
that could be used to cause injury.

Redacted for Public Posting - Sensitive Security Information

NYSCC ECHC/Cycle 2 Evaluation Aug. 2007, supra, n. 6,
at 5; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 9.
The covering of cell bars with towels and sheets results not only
in poor sanitation but also in security risks, as correctional
officers are unable to see into cells when the bars are covered
with towels.
NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n" 6,
at 9; NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6, at 5.


36 -

This is a serious
security risk that should be corrected immediately.
Laundry services at ECHC and ECCF are similarly inadequate.
As of August 2007, "[i]nmates [were] required to either wash
their facility-issued and/or personally owned undergarment in a
cell sink or arrange for the pick-up and washing of these items
by family or friends. ff67 This poses a serious problem, as soiled
and/or improperly washed clothing can retain bacteria and other
contagion that can cause infection or spread disease. Moreover,
inmates are forced to dry their clothes by hanging them in their
cells, thereby obstructing a deputy's view into the cell, thus
compromising security. Lastly, the NYSCC noted that no clothing
exchange was provided to inmates, as required under New York
law. 68


In order to rectify the identified deficiencies and protect
the constitutional rights of inmates confined at ECHC and ECCF,
ECSO and JMD should implement, at a minimum, the following
remedial measures:

Suicide Prevention Measures


Provide adequate treatment for inmates with
self-injurious behavior.

NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6,
at 4. Again, this inadequacy in sanitation also represents a
security risk.

NYSCC ECHC Cycle 2 Evaluation Aug. 2007, supra, n. 6,
at 4; NYSCC ECHC Cycle 2 Evaluation Apr. 2007, supra, n. 6, at 7;
NYSCC 2006 Evaluation, supra, n. 6, at 13.


37 -


Develop policies and procedures to ensure appropriate
management of suicidal inmates and the establishment of
a suicide prevention program.


Ensure that all staff are educated and adequately
trained on suicide recognition, intervention, and
management, including pre-service and annual in-service
suicide prevention training, and that, prior to
assuming their duties and on a regular basis
thereafter, all staff who work directly with inmates
have demonstrated competence in identifying and
managing suicide.


Ensure that ECHC and ECCF have written suicide
prevention policies that include an operational
description of the requirements for both pre-service
and annual in-service training.


Screen all inmates upon intake, including questioning
to assess current and past suicide risk.


Document inmate suicide attempts at ECHC and ECCF in
the inmate's correctional record in the classification
system, in order to ensure that intake staff will be
aware of past suicide attempts if an inmate with a
history of suicide attempts is admitted to ECHC and
ECCF again in the future.


Ensure that intake staff are sufficiently experienced
and qualified to identify inmates who pose a risk for
suicide, and that such inmates are promptly referred to
the appropriate mental health professionals and
provided appropriate housing.


Ensure that follow-up evaluations by mental health
professionals of all new inmates are conducted within
14 days of intake.


Ensure that inmates on suicide precautions receive
adequate mental status examinations by a mental health


Ensure that suicidal inmates are housed in an area that
is safe for them with appropriate supervision and
observation by staff.

- 38 -



Ensure that 15- and 30-minute checks of inmates under
observation for risk of suicide are timely performed
and appropriately documented.


Provide different levels of supervision of an inmate
based on the presenting risk factors for suicide.


Ensure that detainees placed on suicide watch are
assessed adequately, monitored appropriately to ensure
their health and safety, and released from suicide
watch as their clinical condition indicates, according
to professional standards of care.


Ensure that cut-down. tools are readily available to
staff in all housing units. Train staff in the use of
cut-down tools.


Ensure a component of administrative review is
implemented following a suicide or a suicide attempt to
identify what could have been done to prevent the

Mental Health Care


Timely and Appropriate Evaluation of Inmates

Ensure ECHC and ECCF properly identify inmates
with mental illness through adequate screening,
and that such screening is incorporated into each
inmate's medical record.


Ensure that inmates with potentially serious
chronic mental health illness are referred for
prompt mental health evaluations and examinations
by a psychiatrist.


Provide adequate mental health assessment and
treatment in accordance with generally accepted
correctional standards of mental health care.


Ensure that adequate crisis services are available
to address the psychiatric emergencies of inmates.


Provide staffing adequate for inmates' serious
mental health needs.
Provide adequate on-site
psychiatry coverage. Ensure that psychiatrists
see inmates in a timely manner. Ensure that

- 39 -

psychotropic medication prescriptions are reviewed
by a psychiatrist on a regular, timely basis.


Assessment and Treatment

Ensure that treatment plans adequately address
inmates' serious mental health needs and that the
plans contain interventions specifically tailored
to the inmates' diagnoses and problems, consistent
with generally accepted correctional practices.
Provide therapy services where necessary for
inmates with serious mental health needs.
adequate opportunities for inmates and staff to
have confidential communications related to mental
health treatment, while maintaining appropriate
security precautions.


Ensure that mental health evaluations done as part
of the disciplinary process include
recommendations based on the inmate's mental
health status.


Ensure that medications are provided to inmates in
a timely manner and that they are properly


Provide staffing adequate for inmates with serious
mental health needs.
Ensure that services, such
as distribution of medications, are performed by
nurses or other properly trained staff.


Provide policies and procedures that require the
appropriate assessment of inmates with mental


Ensure adequate medical documentation and general
procedures as part of the mental health
assessments that account for inmates' psychiatric

Psychotherapeutic Medication Administration

Ensure timely responses to orders for medication
and laboratory tests, and prompt documentation
thereof in inmates' charts.


Ensure that adequate psychotherapeutic medication
administration is provided in accordance with

- 40 -

generally accepted correctional mental health care



Ensure that changes to inmates' psychotropic
medications are clinically justified. Screen
inmates on psychotropic medications for movement
disorders and provide treatment where appropriate.

Other Mental Health Issues

Ensure that administrative segregation and
observation status are not used to punish inmates
for sYmptoms of mental illness and behaviors that
are, because of mental illness, beyond their


Ensure that ECHC and ECCF mental health records
are centralized,complete, and accurate.


Ensure that ECHC and ECCF quality assurance system
is adequate to identify and correct serious
deficiencies with the mental health system.


Ensure that a psychiatrist or physician conduct;
an in-person evaluation of an inmate prior to a
seclusion or restraint order, or as soon
thereafter as possible. Seclusion or restraint
orders should include sufficient criteria for


Ensure that all staff who directly interact with
inmates (including Correctional Officers) receive
competency-based training on basic mental health
information (~, diagnosis, specific problematic
behaviors, psychiatric medication, additional
areas of concern) i recognition of signs and
symptoms evidencing a response to trauma; and the
appropriate use of force for inmates who suffer
from mental illness.

Protection from Harm


Use of Force

Develop and maintain comprehensive and updated
policies and procedures, in accordance with
generally accepted correctional standards,
regarding permissible use of force.

- 41 -



Develop and maintain comprehensive policies and
procedures, consistent with generally accepted
correctional standards, regarding the
establishment and deploYment of the Response Team
and Quick Entry Team, including permissible uses
of force, use of force reporting, and necessary
training specific for membership on this team.


Establish effective oversight of the use of force.


Develop an effective and comprehensive training
program in the appropriate use of force.

Safety and Supervision

Ensure that correctional officer staffing and
supervision levels are appropriate to adequately
supervise inmates.


Ensure that inmate common areas are adequately
supervised whenever inmates are present.


Ensure frequent, irregularly timed, and documented
security rounds by correctional officers inside
each housing unit.


Ensure that staff adequately and promptly report


Develop a process to track all serious incidents
that captures all relevant information, including:
location, any injuries, if medical care is
provided, primary and secondary staff involved,
reviewing supervisor, external reviews and results
(if applicable), remedy taken (if appropriate)',
and administrative sign-off.


Establish a procedure to ensure that inmates do
not possess or have access to contraband. Conduct
regular inspections of cells and common areas of
the housing units for contraband.


Conduct regular inspections of cells and common
areas of the housing units to identify and prevent
rule violations by inmates.

- 42 -



Review, and revise as applicable, all security
policies and Standard Operating Procedures on an
annual basis.


Provide formal training on division-specific post
orders each time a correctional officer is
transferred from one division to another.


Develop and implement specialized training for
officers assigned to special management units,
which include the Special Incarceration Units,
disciplinary segregation, and protective custody
units. Officers assigned to these units should
possess a higher level of experience and be
regularly assigned to these units for stability


Develop and implement appropriate training for
corrections staff addressing security
administration regarding:

Identification, prevention, and intervention
in inmate-on-inmate violence; and


Professionalism and appropriate interaction
between corrections staff and inmates.


Ensure that adequate supervisory staff is in place
to prevent staff provocation and staff
encouragement of inmate violence.


Develop and implement adequate policies and
procedures to ensure appropriate investigation of
staff-on-inmate violence and to ensure that
appropriate corrective actions are taken.


Ensure the adequate division of supervisory
responsibility at ECCF, including, the
establishment of clear lines of authority per
shift, irrespective of union affiliation.


Develop and implement policies and procedures for
an objective classification system that separates
inmates in housing units by classification levels.




43 -


Update facility communication practices to provide
officers involved in the classification process
with current information as to cell availability
on each division.


Update the classification system to include
information on each inmate's history.

Sexual Misconduct

Ensure that staff is trained and/or retrained on
the Prison Rape Elimination Act.


Establish a zero tolerance standard regarding any
form of sexual harassment or sexual misconduct
that involves inmates, staff or any other
individual that has contact with inmates.


Prompt written corrective action must follow any
deficiency or negative finding that is revealed in
either an administrative or criminal investigation
surrounding sexual misconduct or sexual

Inmate Grievance Procedure

Develop and implement policies and procedures to
ensure inmates have access to an adequate
grievance process. Such process should ensure
that grievances are processed and legitimate
grievances addressed and remedied in a timely
manner, responses are documented and communicated
to inmates, inmates need not confront staff prior
to filing grievances about them, and inmates may
file grievances confidentially.


Ensure that grievance forms are available on all


Ensure that inmate grievances are screened for
allegations of staff misconduct and, if the
incident or allegation meets established criteria,
referred for investigation.

- 44 -



Access to Information

Ensure that newly admitted inmates receive
information they need to comply with facility
rules and regulations, report misconduct, access
medical and mental health care, and seek redress
of grievances.


Ensure that inmates who are not literate are
afforded the opportunity to have information on
facility rules and services explained to them

Medical Care



Intake Screening

Ensure that adequate intake screening and health
assessments are provided for inmates in accordance
with generally accepted correctional standards of
care. Develop and implement an appropriate
medical intake screening instrument that
identifies observable and non-observable medical
needs, including infectious diseases, and ensure
timely access to a physician when presenting
symptoms require such care.


Ensure that acute and chronic health needs of
inmates are identified in order to provide
adequate medical care.


Ensure that medical screening information is
reviewed in a timely manner by trained and
appropriate medical care providers.


Ensure that tuberculosis (~TB") screenihg is
conducted in a timely manner.
Provide adequate
treatment and management of communicable diseases
(~, TB and Methicillin-resistant Staphylococcus
aureus (~MRSA"), HIV, and Hepatitis) .

Acute care

Provide timely medical appointments and follow-up
medical treatment. Ensure that inmates receive
treatment that adequately addresses their serious
medical needs.
Ensure that inmates receive acute
care in a timely and appropriate manner.

- 45 -



Provide adequate acute care for inmates with
serious and life-threatening conditions.


Ensure that staff are adequately trained and
prepared to handle emergency situations in
accordance with generally accepted correctional

Chronic care

Ensure that inmates receive thorough assessments
for, and monitoring of, their chronic illness.
Develop clinical practice guidelines for inmates
with chronic and communicable diseases.
that standard diagnostic tools are employed to
administer the appropriate preventative care in a
timely manner.


Adopt and implement appropriate clinical
guidelines for chronic diseases such as HIV,
hypertension, diabetes, asthma, and elevated blood
lipids, and policies and procedures on, among
other things, timeliness of access to medical
care, continuity of medication, infection control,
medicine dispensing, intoxication/detoxification,
record-keeping, disease prevention, and special


Ensure that medical staff are adequately trained
to identify inmates in need of immediate or
chronic care, and provide timely treatment or
referrals for such inmates.


Ensure that inmates with chronic conditions are
routinely seen by a physician to evaluate the
status of their health and the effectiveness of
the medication administered for their chronic


Ensure adequate follow-up treatment and medication
administration concerning all inmates with chronic

- 46 -



Treatment and Management of Communicable Disease

Provide adequate treatment and management of
communicable diseases, including TB and
Methicillin-resistant Staphylococcus aureus.


Ensure that inmates with communicable diseases are
appropriately screened, isolated, and treated.


Ensure that HVAC and negative pressure systems are
properly maintained and functioning.


Develop and implement an adequate TB control plan
in accordance with generally accepted correctional
standards of care. Such should provide guidelines
for identification, treatment, and containment to
prevent transmission of TB to staff or inmates.


Develop and implement policies that adequately
manage contagious skin infections. Develop a skin
infection control plan to set expectations and
provide a work plan for the prevention of
transmission of skin infections, including
drug-resistant infections to staff and other


Develop and implement adequate guidelines to
ensure that inmates receive appropriate wound

Follow-Up Care


Provide adequate care and maintain appropriate
records for inmates following hospitalization.
Ensure that inmates who receive specialty or
hospital care are evaluated upon their return to
the facility and that, at a minimum, discharge
instructions are noted and appropriately provided.

Record Keeping

Ensure that medical records are adequate to assist
in providing and managing the medical care needs
of inmates at ECHC and ECCF.


Ensure that medical records are complete,
accurate, readily accessible, and systematically
organized. All clinical encounters and reviews of


47 -

inmates should be documented in the inmates'



Medication Administration

Ensure that treatment and administration of
medication to inmates is implemented in accordance
with generally accepted correctional standards of


Ensure that administration of medication is
accurate and adequately documented.
policies and procedures for the accurate
distribution of medication and maintenance of
medication records.
Provide a systematic review
of the use of medication to ensure that each
inmate's prescribed regimen continues to be
appropriate and effective for his condition.


Ensure that medicine distribution is hygienic and
appropriate for the needs of inmates.

Staffing, Training, and Supervision

Provide adequate staffing, training, and
supervision of medical and correctional staff
necessary to ensure adequate medical care is


Ensure that medical staffing is adequate for
inmates' serious medical needs and that physicians
adequately monitor their patients.


Provide adequate physician oversight and
supervision of medical staff, including
supervision for LPNs.


Ensure that there is an adequate number of
correctional officers to escort inmates to medical

Quality Assurance Review

Ensure that ECHC and ECCF's quality assurance
system is adequate to identify and correct serious
deficiencies with the medical system.




48 -

Ensure that ECHC and ECCF's quality assurance
system is capable of assisting in managing and
treating inmate medical needs. At a minimum, such
a system should be reliable and capable of
tracking medically-related incidents.

Sanitation and Environmental Conditions




Sanitation and Maintenance of Facilities

Develop and implement policies and procedures to
ensure adequate cleaning and maintenance of the
facilities with meaningful· inspection processes
and documentation. Such policies should include
oversight and supervision, as well as establish
daily cleaning requirements for toilets, showers,
and housing units.


Ensure prompt and proper maintenance of shower,
toilet, and sink units.


Ensure proper ventilation and airflow in all cells
and housing units.


Ensure adequate lighting in all housing units and
prompt replacement and repair of malfunctioning
lighting fixtures, so that officers and inmates
are not exposed to the security danger that lack
of visibility presents.

Environmental Control

Ensure adequate control and observation of ECHC
and ECCF cells, particularly with regard to
razors, fire loading materials, commissary items,
and cleaning supplies.


Repair electrical shock hazards; develop and
implement a system for maintenance and repair of
electrical outlets, devices, and exposed
electrical wires.

Sanitary Laundry Procedures

Ensure that laundry delivery procedures protect
inmates from exposure to contagious disease,
bodily fluids, and pathogens by preventing clean

- 49 laundry from coming into contact with dirty
laundry or contaminated surfaces.

To limit the spread of MRSA and other infectious
disease, require inmates to provide all clothing
and linens for ECHC and ECCF laundering and
prevent inmates from washing and drying laundry
outside the formal procedures.


To limit the spread of MRSA and other infectious
disease, ensure that clothing and linens returned
from off-site laundry facility are clean,
sanitized, qnd completely dry.


Provide all inmates with properly cleaned and
adequate bedding and clothing

* * *


Please note that this letter is a public document and will
be posted on the Civil Rights Division's website.
We invite the State to discuss with us the remedial
recommendations, with the goal of remedying the identified
deficiencies without resort to litigation.
In the event that we
are unable to reach a resolution regarding our concerns, the
Attorney General is empowered to institute a lawsuit pursuant to
CRIPA to correct deficiencies of the kind identified in this
letter, 49 days after appropriate officials have been notified of
42 U.S.C. § 1997b(a) (1).
If you have any questions
regarding this letter, please call Shanetta Y. Cutlar, Chief of
the Civil Rights Division's Special Litigation Section, at


Acting Assistant Attorney General


Timothy B. Howard
Erie County Sheriff

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Robert Koch
Erie County Sheriff's Department,
Jail Management Division
Cheryl A. Green
County Attorney
Erie County
Kathleen Mehltretter
Acting United States Attorney
Western District of New York