by David M. Reutter

As the mentally ill become more prevalent within the nation’s prison population, guards and prison administrators face a dilemma when confronted with such a prisoner who is not conforming to prison rules. While it said it was “a hard case,” a Florida federal district court nonetheless held that the Eighth Amendment prohibits using chemical agents on mentally ill prisoners, who lack the mental capacity to conform their behavior to prison rules.

That ruling came in a civil rights action filed on behalf of seven individual prisoners. The Court’s finding, after a bench trial, was that only two of the prisoners’ rights were violated by the Florida Department of Corrections (FDOC) policy. All of the prisoner plaintiffs were on close management (CM), which is FDOC’s version of long-term administrative confinement, at the times relevant to the complaint.

Each prisoner was housed at Florida State Prison (FSP) and subjected to chemical agent spraying. FDOC designated them as having the ability to conform their behavior to the prison’s standards. Counsel for the prisoners argued they did not have the ability to conform, making the use of chemical agents on them cruel and unusual punishment. They sought an injunction preventing them from being sprayed at FSP while on CM without first conducting a mental health consultation to evaluate whether they possess the mental faculties to understand and follow guards’ instructions.

The majority of FSP’s 1,400 prisoners have a psych grade of S-3 (those prescribed psychotropic medications who have moderate impairment in adaptive functioning due to serious mental illnesses such as schizophrenia, bipolar disorder or major depression, or borderline personality disorders. Nearly 80% of FSP’s prisoners are on CM.

As a result of the 1999 beating death of death row prisoner Frank Valdes by FSP guards, physical cell extractions are rarely used to gain control of prisoners. Rather, the FDOC utilizes chemical agents to compel prisoners to comply with guards’ orders.

Under that policy, guards request compliance and verify that the prisoner has no contraindications to chemical agents in their medical file. If the prisoner fails to comply, three one-second bursts of pepper spray are used. After five minutes, the spraying is repeated if the prisoner still refuses to comply. Should that still have no result, guards then spray the prisoner with tear gas. When compliance is obtained, the prisoner is handcuffed and offered a cool shower.

The spraying can cause second degree burns if not washed, and it can exacerbate pre-existing conditions. Dr. Donald Gibbs testified that using chemical agents on mentally ill prisoners can worsen their symptoms, making them “more paranoid, frightened, and fearful,” and “less trusting and more angry,” all of which is “detrimental” to treating their mental illness.

In contrast to the spraying policy at FSP, Union Correctional Institution (UCI) does not allow the spraying of its mentally ill prisoners to quell a disturbance. Instead, UCI has its mental health staff intercede to counsel the prisoner and make medication adjustments as necessary. Dr. Olga Infante testified “that the difference between the two facilities in terms of security and mental health management was ‘night and day.’”

She said that disturbances such as prisoners yelling and banging on the cell door can signal that the prisoner has “decompensated.” Many prisoners have a history of transitioning back and forth from FSP to UCI. “Known as ‘frequent-fliers,’ these inmates are treated at UCI and returned to FSP, only to quickly decompensate and be sent back to UCI – sometimes after having been sprayed (even repeatedly) with chemical agents for disturbances they caused in their short stay at FSP,” said the Court.

Both sides in this litigation agreed guards can constitutionally spray prisoners with chemical agents to compel compliance with rules of the ward, but they also acknowledged this is only true when the prisoner has the mental capacity to conform his behavior to those rules. After four years of litigation and five days of trial, the Court said it was a close question of whether FDOC’s policies with regard to mental health at FSP have evolved that the plaintiffs face no real risk of being sprayed when they do not have the mental ability to conform to the rules.

In a 75 page ruling, the Court determined that prisoners Antonio Ward, Paul Echols, Reginald Williams, and Kelvin Frazier failed to demonstrate a connection between their mental state and the spraying with chemical agents to prove a constitutional violation. The Court, however, found that prisoners Jeremiah Thomas and Michael McKinney made such a demonstration that they were entitled to injunctive relief.

Both have a long history of being repeatedly sprayed. Yet, both also have a record of serious mental illnesses. “Thomas’ symptoms include auditory hallucinations, impaired thought process, and paranoid delusions and his behaviors while incarcerated have included acute agitation, maniacal banging on his cell door (to the point of breaking his own hands), eating his feces, pouring urine on his hands, exhibitionist masturbation, urinating on his mattress, attempting to cut his penis, and repeated suicide attempts.”

McKinney has marginal intellectual functioning and propensities for anger and anti-social behavior. His “pathological” behavior has resulted in 320 disciplinary reports over 18 years in prison. He has a history of self-injurious behavior and has been diagnosed at various times with having an adjustment disorder with depressed mood, antisocial personality disorder, and major depression with recurrent psychotic ideations.

The Court’s order detailed repeated sprayings of Thomas and McKinney at FSP during episodes that appear to be due to their mental illnesses. It found that they were “frequent-fliers” who are at threat of being sprayed upon return to FSP. While system-wide policies have changed, injunctive relief is necessary because FDOC’s actions show its verbal policies are fluid and can result in the unconstitutional spraying of Thomas and McKinney. See: Thomas v. McNeil, USDC, M.D. Florida, Case No 3:04-CV-917-J-32JRK. The defendant prison officials settled the prisoners damages claims in this case for amounts ranging from $2,000 to $10,000 per prisoner. Another judge had previously denied statewide class certification in a companion case filed in the M.D. Florida in Ft. Myers. Brown v. Crosby, Case No. 2:03 CV 526-FTM-29DNF. . The defendants have appealed the decision to the 11th circuit appeals court. The plaintiffs were well represented by attorneys from the Florida Justice Institute in Miami. Florida, Institutional Legal Services in Gainesville, and Holland & Knight in Jacksonville. The opinion is posted on PLN’s website.

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