Judgment in Florida’s Closed Management Conditions Lawsuit Terminated Under the PLRA

by David M. Reutter

Nearly seven years after it was entered, a Florida federal district court has terminated a revised offer of judgment that was “intended to minimize the potentially harmful effects of” closed management (CM) which is Florida’s version of a special housing unit.

Prior to the initiation of the civil rights complaint by prisoner Mark Osterback, Thomas Gross, and Darryl E Williams; CM was a horrid experience. When it implemented its CM rules in 1994, the Florida Department of Corrections (FDOC) began converting regular housing units into CM units. At its peak, FDOC had CM units at 11 prisons, with plans to continue the growth of isolation as a form of imprisonment.

The proliferation of CM units was causing prisoners to land within the harsh confines of CM for extended periods for even the most minor infractions. Upon placement in the CM cell, prisoners were stripped of all property, confined to their cells for 24 hours a day, prohibited from any contact with other prisoners unless they went to their one hour recreation period three times a week, and they could only receive one book a week from the library.

In 1998, I did a stint on CM I, which is the most restrictive version , imposing solitary confinement. During that period of confinement, I watched other prisoners, who were already mentally unstable, completely lose touch with reality. The reaction from guards was to spray them with chemical agents and then bring the “Goon squad” to physically extract the prisoner from his cell. Such extractions were shocking to watch in their brutality.

When the district court entered an order approving the ROJ (Revised Offer of Judgment), things began to change on CM. The ROJ limited CM to only 5 prisons. “While the ROJ was not perfect, it was far better than anything the CM class could expect had the lawsuit gone to trial,” wrote Randall Berg, Executive Director of the Florida Justice Institute in a memo to the plaintiff class to inform them of the termination of the ROJ.

The majority of the provisions of the ROJ were placed in revised FDOC CM rules. The first provision of the ROJ dealt with mental health screening, behavioral risk assessment, and mental health services provided to prisoners. Prior to placement on CM, mental health staff must assess whether a prisoner requires inpatient mental health care in lieu of CM.

If placed on CM, mental health must perform a behavioral risk assessment within 14 days to identify issues and set a service plan. Prior to the ROJ, prisoners were simply placed in a cell without regard to mental health issues. CM prisoners are also now provided out-patient mental health care.

For the prisoner who enters CM in good mental health, the most significant difference came in the provision of mundane privileges that are often taken for granted by general population prisoner, under the ROJ, could obtain up to 3 books a week from the library.
A dramatic change was the allowance of telephone calls, which vary in frequency based upon whether the prisoner is on CM I, II, or III. Visits were also increased. Contact with the outside world was also possible by being allowed a radio/headphone set for all CM prisoners. Prisoners on CM II and III are also allowed to watch television.

The provision to allow up to allow up to 6 hours of recreation a week with chin-up and dip bars provided was a boon. Another big change was allowing prisoners to purchase food items from the canteen on a weekly basis. I can attest from a personal perspective, that the ROJ was a change from night to day when comparing CM conditions, as I again found myself in CM in 2003.

Although all concerned acknowledged the conditions in CM have vastly improved, the FDOC’s move to terminate the ROJ in December 2003 was contested. This resulted in the reopening of discovery and an evidentiary hearing, which occurred in September 2006, with 31 prisoners and several experts testifying.

In its March 25, 2008, termination order, the district court said it “was distressed to hear that several CM inmates have remained in disciplinary confinement for years and years at a time.” The court, however, said that the conditions of disciplinary confinement were not before it and these “isolated cases would more appropriately be addressed in individual civil rights actions rather than a class action suit.”

The court noted that there was testimony of isolated instances where guards assaulted prisoners physically or with chemical agents after the prisoner declared a psychological emergency instead of summoning mental health staff. Despite those instances, the court found staff was being properly trained to deal with prisoners who exhibit mental health problems.

It also found prisoners were adequately screened by mental health professionals, and they receive timely access to mental health services. It further held the mental health staff levels are constitutionally adequate. Although occasions arise where guards impede mental health care, the court held the security restrictions do not constitute a federal constitutional violation.

The CM cells are between sixty-four and seventy-eight square feet, containing a bunk bed, toilet, sink, a bench, and a small writing surface. They contain a window that is covered with a perforated metal plate and a solid cell door with a window looking into the wing. Looking out that window, however, will net a disciplinary report for either violating institutional policy or for committing lewd acts while watching female staff. The court found the ventilation in the air conditioned cells and the other conditions comport with constitutional requirements.

The court, additionally, made findings as to prison rules that prohibit prisoners in adjacent cells from communicating with each other through the cell doors, windows, and vents. It was found that prisoners had other means to communicate with each other, and the rules are necessary to prevent “bedlam” that jeopardizes security in the unit.

Finally, the court found FDOC was adequately complying with provisions relating to exercise, education, canteen, visitation, access to the dayroom, and reading materials, telephones, radios and television. Thus, the court held, there is not sufficient on going violations to justify continuing the ROJ under the Prison Litigation Refugee Act.

Lead plaintiff Mark Osterback is very pleased with the results to CM as a result of the lawsuit. His only regret is that he never benefitted from them because he was out of CM when they were implemented. The termination of the ROJ is not being appealed, but the attorneys requested prisoners to inform them regarding new or continued problems in Florida’s Special Housing or general population. See: Osterback v. McDonough, USDC, M.D. Fla., Case No. 3:04-CV-210-J-25JRK.

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