U.S. Department of Justice
Civil Rights Division

Special Litigation Section - PHB
950 Pennsylvania Avenue, NW
Washington, DC 20530

May 9, 2006


The Honorable David Hudson

Sebastian County Judge

Fort Smith Courthouse

35 South 6th Street, Room 106

Fort Smith, AR 72901

Re: Investigation of the Sebastian County Adult Detention

Center, Fort Smith, Arkansas 

Dear Judge Hudson:

On March 1, 2005, we notified you of our intent to

investigate conditions at the Sebastian County Adult Detention

Center (“SCADC”), pursuant to the Civil Rights of

Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997.

Consistent with our statutory requirements, we write to report

the findings of our investigation and to recommend remedial

measures to ensure that SCADC meets federal constitutional

requirements. See 42 U.S.C. § 1997b.

From May 9 through 12, 2005, we conducted an on-site

inspection of SCADC with consultants in the fields of

correctional management and correctional medical and mental

health care. While on-site, we interviewed the Sheriff, jail

staff, medical care providers, and inmates. Before, during, and

after our on-site inspection we received and reviewed a large

number of documents, including jail policies and procedures,

incident reports, medical records, use of force records, inmate

intake records, individual inmate records, and other records.

Consistent with our commitment to provide technical assistance

and conduct a transparent investigation, we provided an extensive

debriefing at the conclusion of our inspection, in which our

consultants expressed their initial impressions and concerns. We

appreciate the full cooperation we received from County and SCADC

officials throughout our investigation. We also wish to extend

our appreciation to the Sheriff and his staff for their

professional conduct and timely response to our requests.


- 2 ­

Having completed our investigation of SCADC, we conclude

that certain conditions at SCADC violate the constitutional

rights of inmates confined there. As detailed below, we find

that SCADC fails to provide for inmates’ (1) serious medical

needs; (2) serious mental health needs; (3) right to protection

from physical harm; and (4) right to be confined in sanitary and

safe environmental conditions. 

I.

BACKGROUND

A.

DESCRIPTION OF SCADC


SCADC is located in Sebastian County, Arkansas, in the city

of Fort Smith. The Sebastian County Sheriff is responsible for

the operation of SCADC. The Quorum Court of the County is

responsible for its funding. The facility is twelve years old,

with a rated capacity of 266 pretrial and sentenced inmates.

During our four-day visit in May, 2005, the facility had an

average inmate population of 325 inmates per day. SCADC has

seven housing areas, and segregation, disciplinary holding,

suicide observation, and intake areas. The housing areas are of

several different designs, providing either direct access from

cells to the dayrooms, or having large twelve-person “cells” that

access a day room. In addition, there are three

inmate/family/professional visiting areas, and a multi-purpose

room for school, hearings, and other programmed activities. 

The length of stay at the facility varies from a few hours

to nearly one year. The facility staff reports the average

length of stay as 8.83 days for men, and 5.32 days for women, but

our review of facility documents indicates an average length of

stay of 39.8 days. 

II.

FINDINGS

A.

MEDICAL CARE


The Eighth Amendment requires that inmates be provided

humane conditions of confinement, and “[o]ne condition of

confinement is the medical attention given to a prisoner.”

Weaver v. Clarke, 45 F.3d 1253, 1255 (8th
 Cir. 1995) (citing

Wilson v. Seiter, 501 U.S. 294, 303 (1991)). Prison officials

violate the Eighth Amendment when they act “deliberately

indifferent either to a prisoner's existing serious medical needs

or to conditions posing a substantial risk of serious future

harm.” Weaver, at 1255 (emphasis in original). 


- 3 ­

To constitute an objectively serious medical need or a

deprivation of that need, . . . the need or the deprivation

alleged must be either obvious to the layperson or supported

by medical evidence, like a physician's diagnosis.

Aswegan v. Henry, 49 F.3d 461, 464 (8th
 Cir. 1995). Deliberate

indifference occurs if a jail official knows an inmate has a

serious medical need but deliberately disregards it. Hartsfield

v. Colburn, 371 F.3d 454, 458 (8th
 Cir. 2004). Intentional delay

of medical care may also constitute deliberate indifference.

Ruark v. Drury, 21 F.3d 213, 216 (8th
 Cir. 1997). Grossly

incompetent or inadequate care can constitute deliberate

indifference, as can a doctor's decision to take an easier and

less efficacious course of treatment. Smith v. Jenkins, 919 F.2d

90, 93 (8th
 Cir. 1991) (internal citations omitted).

SCADC fails to provide inmates with medical care that

complies with these constitutional requirements. We found the

following deficiencies: (1) inadequate intake screening and lack

of routine health assessments; (2) inadequate acute care;

(3) lack of chronic care for inmates with complicated diseases

such as diabetes or hypertension; (4) inadequate infection

control; (5) improper administration and control of medications;

(6) inadequate access to medical care; and (7) inadequate medical

staffing.

1.

Intake and Health Assessment


SCADC’s intake process is constitutionally inadequate

because it does not attempt to identify inmates’ urgent or

ongoing health needs. Compounding this deficiency, SCADC does

not provide routine health assessments to determine the current

health status or chronic health care needs of inmates.

Incoming inmates should have an intake assessment by staff

who have been trained to identify symptoms of drug and alcohol

withdrawal, communicable diseases, acute or chronic illness

(including mental illness), and potential suicide risk. SCADC’s

intake form only asks the inmate to provide information as to

past or current health condition. SCADC officers are not

required to note the signs and symptoms of serious illness or

contagious diseases during the intake process, nor have they been

trained to do so. Failure to identify the urgent health needs of

inmates being admitted to the facility puts inmates at risk of

serious harm or death, and may have contributed to the deaths of

SCADC inmates in the past. 


- 4 ­

SCADC inmate RK1
 died on December 26, 2003 of delirium and

methamphetamine intoxication. Both of these conditions are

treatable if treatment is administered promptly. According to

the facility’s records, RK was hallucinating and paranoid on

admission to SCADC on the evening of December 24 and on several

occasions before his death on December 26. There is no evidence

that jail officers ever attempted to obtain any medical or mental

health care for RK prior to his suffering cardiac arrest after an

altercation with jail officers on December 26. 

Inmate AG died at SCADC on May 1, 2003. According to the

autopsy report, he died of propoxyphene (a pain medication)

intoxication. He was noted to be severely intoxicated or

psychotic on his arrival at the jail. Despite his condition, he

was not immediately referred to a hospital for evaluation and a

professional medical judgment about his condition. Propoxyphene

intoxication is also treatable; death can be prevented with

prompt treatment.

Despite these inmate deaths, it appears that SCADC’s

practices have not changed. Although the jail’s policy manual

states that “all officers will be trained to detect the signs and

symptoms of medical emergencies” such as those described above,

and that all such training will be documented, we could find no

documentation of such training during our tour. The nurse told

us that she had no formal training in recognizing signs and

symptoms of substance abuse and withdrawal. While not

acceptable, to her credit, the nurse told us that she trains the

officers during staff meetings by handing out information that

she obtains from magazines and from the Internet.

Further, the jail’s current intake screening instrument

appears to be the same one used with inmates AG and RK in 2003.

It does not require the intake officer to note whether the inmate

has any current signs of visible illness, but instead only asks

the officer “is the subject normal, M.I. [mentally ill], or

intoxicated?” Most of the intake forms we reviewed had even this

question left blank. Officers should be trained to observe

inmates on intake for any signs of serious illness or disease and

to take appropriate action to protect the health of the inmate.


1

Throughout this letter, when referring to a specific inmate,

we use pseudonymous initials to protect the identity of the

inmate. We are providing to the County under separate cover a

key to the identity of the inmates referenced in this letter.


- 5 ­

SCADC also does not routinely identify inmates with chronic

illnesses at intake. On intake, inmates are asked to complete a

“Medical Questionnaire” by checking off boxes indicating whether

they have or have ever had a list of medical conditions. They

are also asked to name any prescription medications that they

currently take. Although the jail’s policy manual states that

the admitting officer is required to establish a medical record

for each inmate containing the inmate’s Preliminary Health

Screening Form,2
 this policy is not practiced. The nurse told us

that she is only provided with a copy of an inmate’s Medical

Questionnaire at the discretion of the admitting deputy. She

said she then only opens a medical record for the inmate if she

believes she needs to follow-up with the inmate. 

SCADC inmates also do not receive a full initial health

assessment within a reasonable period after their arrival at the

jail. The accepted standard of care is to conduct a health

assessment within fourteen days of admission to a correctional

facility. Such an assessment typically includes a review of the

intake information discussed above, the collection of a complete

medical and mental health history, a physical examination, and

screening for Tuberculosis and sexually transmitted diseases.

Without this assessment, inmates cannot be appropriately

evaluated, and thereby treated for chronic disorders,

communicable disease and mental illness.

2.

Chronic Care


SCADC fails to address the ongoing medical needs of inmates

with chronic illnesses such as diabetes, asthma, hypertension,

seizure disorder, hepatitis and HIV disease. Inmates who suffer

from such medical conditions require ongoing, coordinated care

and treatment to prevent the progression of their illnesses.

Inmate HN was admitted to SCADC in July 2002 and died at the

jail in October 2002 of hypertensive arteriosclerotic

cardiovascular disease and diabetes. On his Medical

Questionnaire, HN noted that he had chronic high blood pressure,

diabetes, and had had two strokes. He also brought personal

medical records with him, as well as a list of prescription

medications. Despite this extensive medical history, HN was

never seen by a physician during his stay at SCADC. 


2

We presume this refers to the “Medical Questionnaire”

completed at intake.


- 6 ­

Despite HN’s death, the jail has not established policies

and procedures for identifying and caring for inmates with

chronic illnesses or diseases. As noted above, inmates with

chronic illnesses are not routinely identified and assessed at

intake or shortly thereafter. Therefore, no plan is made for

their ongoing assessment and monitoring. There are no scheduled

visits for chronic disease care or follow-up. We reviewed the

medical charts of thirteen inmates who were currently taking

medications typically indicated for chronic illnesses including

diabetes, hypertension, seizure disorder, asthma, and

hyperlipidemia. None of these inmates had been seen by a

physician to evaluate the status of their health and the

effectiveness of the medications they were taking for their

chronic condition. We also identified numerous inmates who

indicated on their medical intake questionnaire that they had a

history of chronic diseases such as hypertension, high blood

pressure, kidney disease, and mental illness. Despite this

information, none of these inmates had a medical chart

established, and none had been evaluated by a physician since

admission to the jail. Because the jail does not conduct health

assessments on inmates, we have no knowledge whether other

inmates at the jail have chronic conditions that are undiagnosed

and unmanaged.

3.

Acute Care


SCADC fails to provide reasonable medical treatment to

inmates with serious or potentially serious acute medical

conditions. The jail has no physician on-call to consult in an

emergency, and because of the jail’s “fee-for-service” system,

the issue of who will pay for treatment is often a determining

factor in whether care, even serious acute care, will be

provided. We found that care is often delayed while a payment

source is identified. For example, during our tour, the nurse

examined an inmate with a rapidly growing groin lesion that she

felt needed urgent attention. The physician who comes to SCADC

to see patients does not take emergency calls from the jail and

was not available to come to the jail to see the inmate until the

next week. After multiple phone calls, the nurse was able to get

an appointment for the inmate at a local walk-in clinic. When

the inmate arrived at the clinic he was denied service because he

was unable to pay for it. The nurse again made multiple calls

and finally was successful in arranging care for the inmate at

another clinic. The nurse told us that this problem of finding

acute care for inmates is typical.


- 7 ­

4.

Infection Control


SCADC has no formal written plan to prevent exposure of

inmates and staff to an inmate who has a contagious disease. The

crowded conditions at SCADC and the constant exposure of inmates

to each other and jail staff present a serious risk of the spread

of infectious respiratory diseases.

For example, pulmonary Tuberculosis (TB) is a potentially

lethal respiratory disease commonly found in corrections

facilities whose transmittal to other inmates and jail staff can

be prevented or controlled. On intake, inmates with signs and

symptoms of TB disease can be identified and isolated until TB is

ruled out. As noted above, SCADC does not attempt to screen

inmates with TB symptoms and isolate them. Although SCADC has a

cell designated for isolating inmates for medical reasons, this

cell is not designed to have a reverse airflow, thus making it

ineffectual for isolating persons with suspected TB. 

Active and inactive TB can be identified by a skin test. If

the skin test is positive, a chest x-ray is performed to rule out

active TB. Meanwhile, the inmate can be isolated to prevent

potential spread of the disease. SCADC does not systematically

administer a TB skin test to all inmates. As a result, inmates

and staff risk exposure to TB.

The nurse told us that inmates from the U.S. Marshals

Service housed at SCADC receive TB skin tests because the U.S.

Marshals Service rules require it. She said that she tests other

inmates on a random basis at her convenience, but that not all

inmates receive the test. She said that inmates with positive

skin tests were referred to the local health department for chest

x-rays, and she noted that the results of x-rays were often

delayed because the volunteer who reads chest x-rays for the jail

only does so once per month.

SCADC’s failure to have effective infection control policies

and procedures has potentially resulted in inmates and staff

being exposed to active TB. During our tour, the nurse saw

inmate BD, who had been incarcerated at SCADC before he was

tested for TB for approximately two months. BD tested positive,

and was referred to the local health department for a chest x-

ray. The nurse had just learned on the day of our tour that BD’s

chest x-ray was consistent with active pulmonary TB disease. The

Health Department ordered that the inmate be isolated, and that

additional tests and medications be administered. At the time of

our tour, this inmate had only just been placed in an isolation

cell. Although BD had been housed in general population, we were


- 8 ­

told that the jail had no plans to test any other inmates or

staff potentially exposed to the disease. Further, the

facility’s isolation cell, where BD was placed, is not a reverse

airflow isolation cell necessary to prevent airborne spread of

TB, thus risking further exposure.

5.

Administration and Control of Medication


SCADC inmates who take prescription medications are at

significant risk of harm because there is no licensed physician

responsible for approving all prescription medications dispensed

at the jail and ensuring that inmates receive all approved

medications regardless of their ability to pay.

We found that prescription medications are provided to

inmates in various ways. The nurse told us that if an inmate

arrives with medication, she attempts to contact the prescribing

physician to verify the prescription and, if verified, the

medication is administered to the inmate by the officers under

the supervision of the nurse. If an inmate states that he/she is

taking prescription medication but does not have it with him/her,

attempts are made to reach the inmate’s family to have them bring

in the medication. These attempts may or may not be successful.

If the physician who sees inmates at SCADC prescribes medication

for an inmate, that medication may be provided from “stock”

medications kept in the clinic (for a $15 co-pay) or obtained

from a local pharmacy, and charged to the inmate’s commissary

account.

The nurse told us that if the inmate does not provide his

own medication or is unwilling or unable to pay for medication,

she “uses her best judgment” to decide if the medication will be

purchased by the jail and provided to the inmate. This is a

decision that is outside the scope of a nurse’s authority and can

only be made by a licensed physician. The physician who sees

patients at the jail told us that he has no obligation to oversee

medication services to inmates and that he is only responsible to

write prescriptions for the inmates that he sees.

Further, we found that the facility routinely fails to

follow its own written policy with respect to administration of

prescription medication to inmates being admitted to the

facility. The facility’s policy is that if a newly admitted

inmate is carrying prescription medication, the admitting officer

is required to contact the facility’s health care provider

immediately to verify the medication. The facility’s failure to

follow this policy resulted in the serious illness of an inmate

during our tour. On the afternoon of May 10, inmate EM was


- 9 ­

transferred to SCADC from another jail. EM had a record of a

previous incarceration at SCADC which indicated that he is

diabetic. At intake, he reported that he is diabetic and that he

had his insulin with him. In accordance with SCADC’s policy,

EM’s insulin was locked in a medicine cabinet. EM later told us

that throughout the evening he repeatedly requested that officers

give him his insulin, but they did not. Early the next morning,

he was ordered to work in the kitchen. By 9:30 am, the kitchen

supervisor was so alarmed at EM’s deteriorating condition that

she summoned the nurse. The nurse tested EM’s blood sugar level,

which at that time was over 500 (100 is normal). EM had to be

transported to the hospital, where he reported that his blood

sugar level eventually soared to over 900 before aggressive

treatment brought it back to normal levels.

The full-time nurse verified that on the evening of EM’s

arrival at the jail, the part-time evening nurse was present and

on duty but was not contacted about this inmate’s arrival at the

jail, nor his request for medication, contrary to SCADC policy.

6.

Access to Medical Care


SCADC requires inmates to pay for all medical services.

While this “fee-for-service” system is not unconstitutional per

se, the practice of charging inmates fees to access medical care,

as implemented at SCADC, is unconstitutional because it has the

effect of deterring access to necessary medical care. Cf. Scher

v. Ortwerth, 2004 WL 3622037, E.D. Mo., July 12, 2004 (the court

noted that although co-payments are charged to inmate accounts,

medical care is rendered as needed, regardless of the inmate's

account balance). SCADC’s policy is flawed because it creates a

financial disincentive for inmates to seek treatment for chronic

and pre-existing conditions, even those which are life-

threatening or a threat to the health and safety of others; the

policy is not conveyed clearly to inmates; and there is no

mechanism to waive the co-payment fees for indigent inmates. 


- 10 ­

Inmates request medical services by completing a “Medical

Division Charge Sheet.”3 The Charge Sheet lists the following

co-payments charged for each service: 

•	

Nurse call – $10.00 


•	

Transportation fee – $25.00


•	

Over-the-counter stock medications – $3.00


•	

Dental appointment – “financial arrangements to be set

up by family with local dentist then dentist office to

call and set up appointment with jail nurse. Transport

fee will be deducted prior to appointment.”


•	

Physician evaluation (after evaluation and approval by

the nurse) – $60.00


•	

“Routine” pregnancy test – $20.00 (which must be paid

in advance, no negative balances allowed)4


•	

Request release from suicide watch – $10.005


Inmates or their families must provide their own

prescription medications. New prescriptions require a physician

visit. Before submitting the Charge Sheet, the inmate must sign

a statement saying: 

I understand that the above co-payment fees will be deducted

from my commissary account for each service

requested/rendered. If I am indigent I understand a

3

We also found that SCADC fails to clearly articulate a

consistent policy regarding provision of medical services to the

inmates. We observed at least three different versions of

SCADC’s Inmate Handbook – one provided to us in response to our

document request, and two posted on the walls in the housing

areas – each of which had a different list of fees for services. 

The fact that the form that inmates use to request medical

service is called a “Medical Charge Sheet” only underscores the

inmates’ conclusion that if they cannot afford to pay for medical

services they will not be provided. 

4

5

“Routine” is not defined on the charge sheet.


In the more than 25 years since CRIPA was enacted we have

never encountered a facility which charges for the release from

suicide care.


- 11 ­

negative balance will be placed on my commissary account

waiting funds. 

We found that inmates in need of medical services were not

requesting them because they believed services would not be

provided if they could not pay. One inmate we interviewed, VC,

stated that she had missed a menstrual period, experienced side

pain, vaginal spotting and believed she was pregnant, but did not

request a medical visit because she could not afford the co­

payment for the sick call visit, as well as the $20 charge for a

pregnancy test. VC said that other inmates told her that if she

had a “negative balance” on her commissary account, she could not

be released from the jail until the balance was paid. In fact,

during our tour, several inmates told us that they were pregnant

or believed they were pregnant but had not requested medical

services because they could not afford the co-payments and the

$20 charge for the test. When we asked the nurse why inmates

were charged $20 for a urine pregnancy test she said the charge

had been imposed to discourage inmates from asking for the test

“just because they might be pregnant.”

The facility’s policy of requiring inmates to pay for their

own prescriptions also creates a dangerous barrier to care for

inmates with chronic medical conditions. For indigent inmates,

the decision whether to obtain prescription medications becomes a

financial decision, rather than a medical one. Inmates cannot be

expected to make a medical decision as to whether it is safe for

them to discontinue prescription medications. This problem is

compounded at SCADC, where there is no health assessment to

determine whether inmates suffer from chronic conditions, and

there are no procedures in place for providing care for self-

identified chronic conditions. We found numerous examples of

inmates who indicated on their medical intake forms that they had

a history of chronic illnesses such as high blood pressure, heart

disease, kidney disease, or mental illness who were not currently

taking any prescription medications.

7. 	 Inadequate Staffing, Policies, Procedures and

Protocols. 

The deprivations of required medical care outlined above are

caused in part by: the absence of a physician acting as Health

Authority for SCADC to plan, supervise, and monitor appropriate

medical care for inmates; inadequate nurse staffing; and

inadequate protocols, policies and procedures. 


- 12 ­

a.

Physician Staffing


Much of the inadequate medical care at SCADC appears to

result from the fact that the facility has no contractual

relationship with a physician responsible for the medical care of

the inmates housed there. A local physician sees inmates at the

jail at the request of the nurse and at his convenience,

approximately one-half day every other week, and will not take

emergency calls from the jail. This is clearly insufficient to

provide the medical care required for an institution the size of

SCADC. Facilities of this size typically require ten to twelve

hours of physician coverage per week. 

b.

Nurse Staffing


Similarly, the forty hours of daytime nursing coverage at

SCADC, especially given the low number of physician hours and the

fact that the nurse also performs health services administration

duties, do not allow the provision of adequate care.

c.

Policies and Procedures


We found that in numerous instances SCADC’s Policies and

Procedures manual sets out policies which, if implemented

properly, should result in inmates receiving constitutionally

adequate medical care. Unfortunately, we found that virtually

none of these policies and procedures are being followed. For

example, the manual calls for the development of a written

Facility Medical Plan that complies with Arkansas Jail Standards,

and which is to be reviewed and updated on at least an annual

basis by the jail administrator, and approved by the Sheriff.

This Facility Medical Plan is supposed to address, among other

things, health screening of inmates upon admission, procedures

for handling of inmates with chronic illnesses or known

communicable diseases, and procedures for handling of intoxicated

inmates admitted to the facility. No such Facility Medical Plan

exists. The Policies and Procedures manual also states that 

the Sheriff . . . will ensure that county officials have

completed a contract between the jail facility and a local

physician(s) or medical group to provide health care

services to inmates housed at the jail. 

No such contract exists.

In addition, there are no protocols for the nurse or the

correctional staff to use to ensure timely access to a physician

when presenting symptoms require physician care. For 


- 13 ­

example, as discussed above, there is no regularly scheduled care

for inmates with chronic diseases such as HIV, hypertension,

diabetes, asthma, and elevated blood lipids, even though patients

with these conditions should be seen by a physician at least once

every three months. The facility lacks any clinical guidelines

for treatment of these conditions. The facility should have

guidelines based on generally accepted standards.

B.

MENTAL HEALTH CARE


Jail officials violate the Eighth Amendment when they

exhibit deliberate indifference to inmates’ serious mental health 

needs. Smith, 919 F.2d at 92-93. Deliberate indifference may

include intentionally denying or delaying access to medical care,

or intentionally interfering with treatment or medication that

has been prescribed. Id. 

SCADC fails to meet this constitutional minimum standard

because it does not provide any mental health care for its

inmates, not even for those inmates identified as suicidal or who

are suffering from serious mental illness. We noted many

instances of inmates who had threatened or attempted suicide,

were suffering from hallucinations and/or delusions, had

indicated on their intake forms that they suffer from mental

illness and/or were taking psychiatric medications, who had never

been evaluated by a mental health care provider. The following

examples are illustrative.

During our tour, we observed inmate JM hitting her head on

the window of her cell and talking with slurred speech. She was

housed in a Hospital cell under suicide watch. She spoke of

seeing angels and said that she was afraid her cellmate, (who was

in the advanced stages of pregnancy), was trying to harm her.6

She had been at SCADC for approximately one month prior to our

visit. JM stated on her intake form that she had previously been

treated at a mental hospital in Little Rock and that she had been

6

According to SCADC Incident Reports, inmate JM had been

“repeatedly warned” not to hit her cellmates, and had been

sprayed with OC spray at least two times during her incarceration

for doing so. Inexplicably, JM was still being housed with a

cellmate when we toured in May 2005. When we asked the nurse why

the cellmate had been placed with JM, she said that the cellmate

was the only person that had been able to calm JM down, and

because the cellmate needed to be separated from the general

population because she was not able to get along with the other

inmates. 


- 14 ­

seen at a local hospital in January 2005 for seeing “spiritual

things.” Shortly after her admission to SCADC, she was placed on

suicide watch for making statements about going to sleep and not

getting up and “not caring if she was alive or not.” Her medical

record notes numerous instances of “talking wildly” and “talking

to herself.” She told us that she had a history of

hypothyroidism and told us the names of various psychiatric

medications that she had been taking before being admitted to

SCADC. Throughout our tour, we could hear JM moaning and crying,

and at times screaming. In spite of all this, this inmate was

never evaluated by a mental health care provider. We were told

that she was not started on any psychiatric medications or sent

to the local hospital because she did not have the ability to

pay. 

In another example, we observed the nurse evaluate an inmate

who told the guards that he intended to harm himself. He told

the nurse that he had a history of bipolar disorder. He said

that he was intimidated by the other inmates in his cell, who

steal his food. The nurse did not conduct a mental status exam,

a suicide risk assessment or detailed history of mental illness.

Although the inmate indicated mental illness on his Medical

Questionnaire at intake, he was not referred to the nurse at

intake, nor was a medical chart established until he saw the

nurse during our tour.

In yet another example, inmate MC had been at SCADC for one

month prior to our tour. She indicated on her medical intake

questionnaire that she had never attempted suicide in the past.

This inmate came to our attention because our review of the files

indicated that she attempted to hang herself during a previous

incarceration at SCADC ten months previously. When we pointed

this out to the nurse, she admitted she was not aware of the

earlier incident, and that it is not SCADC policy to retrieve

medical files from previous incarcerations. MC had not received

a mental health evaluation during this incarceration.

As the above examples illustrate, SCADC fails to

appropriately identify inmates with serious mental health needs

at intake and to address such needs during their confinement.

These deficiencies contribute to unsafe conditions and 

unnecessary suffering. Our investigation revealed that, if on

intake an inmate appears to be suffering from some sort of mental

illness, the jail’s practice is to isolate these inmates for a

short time and then transfer them into the general population or

place them in administrative segregation due to their mental

illness. It is not uncommon that such inmates, due to their

untreated mental illnesses, get into altercations with security


- 15 ­

staff or other inmates and are at times subjected to uses of

force by security staff.

SCADC staff also told us that inmates who have been

committed to Arkansas State Hospital sometimes must stay at SCADC

for months before there is a bed available at the hospital.

Although these inmates are clearly in need of ongoing psychiatric

care, they do not receive psychiatric services or medications

during this time unless they can afford the cost.

The inadequate mental health care at SCADC is caused in

large part by its failure to contract with a mental health

provider to provide psychiatric services to those inmates that

need them. At a minimum, SCADC will require the services of a

full-time master’s level psychologist on staff at the jail, and

psychiatric services, either on site at the jail or at a local

mental health center, of up to eight hours per week.

C.

PROTECTION FROM HARM


The Eighth Amendment protects inmates from the unnecessary

and wanton infliction of pain by correctional officers, Whitley

v. Albers, 475 U.S. 312, 319 (1986). Correctional officers may

use force reasonably “in a good faith effort to maintain or

restore discipline, but force is not to be used maliciously and

sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1, 7

(1992). 

Factors to be considered in deciding whether a particular

use of force was reasonable are whether there was an

objective need for the force, the relationship between any

such need and the amount of force used, the threat

reasonably perceived by the correctional officers, any

efforts by the officers to temper the severity of their

forceful response, and the extent of the inmate’s injury.

Treats v. Morgan, 308 F.3d 868, 872 (8th
 Cir. 2002).
1.




Uses of Force


SCADC security staff do not meet these constitutional

standards when they use force on inmates. In particular, we

found a pattern of unreasonable uses of oleoresin capsicum (“OC”)

spray on SCADC inmates.7 Correctional officers are not justified

7

Another serious problem we found is in the documentation of

uses of force. We compared SCADC incident reports and the

facility Use of Force log for January through March, 2005 and


- 16 ­

in using pepper spray “every time an inmate questions
seeks redress for an officer’s actions.” Treats, 308
872. “The test is whether the officer’s use of force
reasonable under the circumstances, or whether it was
arbitrary, or malicious.” Id. at 873. 


orders or

F.3d at

was

punitive,


Our investigation revealed incidents in which SCADC security

staff use OC spray unreasonably and inappropriately in

interactions with inmates during intake and with inmates who are

mentally ill. For example, we reviewed incidents in which SCADC

officers sprayed inmates with OC because they refused to remove

their pants or underwear to be searched during intake. SCADC

staff also inappropriately sprayed inmates on suicide watch with

OC for such conduct as failing to remove their pants (which had

been used in a previous hanging attempt) and failing to remain

seated so as to be monitored by the video camera. In another

incident, SCADC staff sprayed a female inmate for refusing to sit

down after an officer entered the cell. The officer was summoned

to the cell because the inmate was screaming loudly that she was

losing her baby. These incidents are illustrative of the

unreasonable use of OC spray by SCADC officers. The pattern of

unconstitutional use of force that we found at SCADC is caused in

part by: inadequate staffing, and inadequate management review

and investigation of uses of force.

a.

Insufficient Numbers of Staff


The jail’s authorized staffing consists of forty-three sworn

staff, three administrators, and thirteen civilian positions. On

the day of our tour, fourteen staff were assigned to be working

at the jail that day, but only eight were actually working. One

had called in sick; two were attending the basic law enforcement

academy several hours drive away, one was away on an inmate

transport, and two were new employees who could not yet work

unsupervised. We were told that the jail has seven mandatory

posts – one in the control center, one in intake, and five pod

officers for each shift. The staffing plan for the jail does not

include a provision for a staffing relief factor, the purpose of

which is to ensure that there is sufficient staff to operate the

facility during expected staff absences due to vacation,

training, sick leave, and other absences. Nor is any overtime

funding allocated to fill vacant posts. Jail staff reported that

due to illness, transports and other circumstances, the staff has

worked with as few as four officers on the night shift. 


found that at least 64% of the uses of force documented in

Incident Reports were not logged on the Use of Force log. 


- 17 ­

The jail employs too few security staff given the number of

inmates and the architectural design of the jail. This

understaffing has resulted in an unusually high number of uses of

force. Our review of the facility’s use of force records for the

period January to April 2005 indicated that SCADC staff used

force seventy-six times, which our expert consultant found to be

unusually high for a facility of this size. Because of the lack

of staff, when problems arise, staff have few alternatives other

than OC spray or Tasers to subdue arrestees and inmates. In one

incident, staff used the threat of OC spray to manage inmates.8

Of the seventy-six use of force incidents that took place during

this period, thirty-one occurred in the intake area – more than

in any other part of the jail. As noted above, only one security

officer is assigned to the intake area at any given time. In the

majority of these incidents in the intake area, additional

security staff were called away from other duties to assist.

Understaffing also compromises inmate supervision, which can

itself result in the unnecessary resort to use of force by staff.

Inmates are locked down for unreasonable periods,9
 more fights

occur, it takes longer for jail staff to respond, and the

likelihood of serious harm is increased. 

b.

Inadequate Management Review of Uses of Force


SCADC’s deficiencies are also caused by inadequate

management review and investigation of uses of force. The

purpose of a management review and investigation of each use of

force is to ensure that facility procedures have been followed,

that no remedial training is necessary, and that no review or

change in policies is required. Current SCADC policies require

only that the jail administrator review all use of force incident

reports for the purpose of recommending to the Sheriff whether to

discipline an officer, but we found that even this policy is not

being followed at SCADC. The incident reports are signed by the

shift supervisor, but there is no indication that the jail

administrator conducts his own review. As a result, even obvious

violations of SCADC’s use of force policy, as listed above, are

not identified. 


8

On February 19, 2005, a detention officer, responding to a

verbal confrontation in a housing area, refused an inmate’s

request to be moved “in order to cool off,” and advised all of

the inmates in the room “that if we [security staff] had to come

up there because there was a problem, they would be maced.”

9

Inmates at SCADC are often locked down at all times except

for meal time.


- 18 ­

D.

ENVIRONMENTAL HEALTH AND SAFETY AND SANITATION


Prison officials must ensure that inmates receive adequate

food, clothing, and shelter, Farmer v. Brennan, 511 U.S. 825, 832

(1994), and that prisoners are not “deprive[d] . . . of the

minimal civilized measure of life’s necessities.” Rhodes v.

Chapman, 452 U.S. 337, 347 (1981). Accordingly, 

a prison official may be liable under the Eighth Amendment

if he or she knows that an inmate faces a substantial risk

of serious harm and disregards that risk by failing to take

reasonable measures to abate it. 

Coleman v. Rahija, 114 F.3d 778, 785 (8th
 Cir. 1997). 

1.

Biohazards


SCADC fails to protect inmates adequately from contact with

potential biohazards such as blood, feces, vomit, and urine.

SCADC has policies or procedures for the clean up of such

biohazards, but inmates routinely asked to clean up these spills

are not provided protective equipment or training. The cleanup

materials and/or refuse are not disposed of in red biohazard

bags. Additionally, biohazard kits are not available to staff.

Notably, the nurse reported to us that there are red biohazard

bags in the medical unit, but no one else on the staff was aware

that they existed prior to our tour.

Inmates working in the laundry report that they wash

bloodied clothing, towels, and sheets along with the rest of the

laundry. One inmate reported having to wash clothes contaminated

with feces together with other clothes. When an inmate arrives

at the jail in clothing that constitutes a biohazard (i.e.,

contaminated with blood, drugs, vomit, feces, etc.) that clothing

is washed in the jail laundry rather than being discarded. When

asked why this clothing was not discarded as a biohazard, the

staff reported that they had no other clothing to give the inmate

upon release. This is a gross departure from generally accepted

safety precautions, which require that all potentially

biohazardous materials be handled separately from the regular

laundry, that inmates working in the laundry be supervised and

specially trained in how to handle and/or dispose of biohazardous

materials, and that they be provided with appropriate protective

gear to prevent exposure to biohazardous materials.

The jail does not have a protocol to assure that arrestees

from methamphetamine labs are thoroughly decontaminated prior to

their arrival at the jail. A Sheriff’s Office CID investigator


- 19 ­

reported that current practice is that the arrestee is

decontaminated only if they believe that there was a “major lab.”

This is unacceptable. Failure to decontaminate arrestees can

result in serious harm to staff and inmates. It is well-known

within the correctional setting that residue from substances

associated with methamphetamine production can be transferred not

only to jail personnel, but also to surfaces where the arrestee’s

clothing and personal items are stored, and to the cell where the

arrestee is ultimately housed. Repeated contact with these toxic

materials over a long period of time can have serious adverse

health implications, particularly for booking staff. 

2.

Tool and Chemical Control


SCADC inmates risk serious injury as a result of SCADC’s

failure to adequately control its cleaning implements and

chemicals. SCADC keeps no records of the amount of cleaning

chemicals transferred from the maintenance building to the

janitor’s closet, nor is there a record kept of the cleaning

chemicals transferred from the janitor’s closet to the housing

units. During our tour, we observed unlabeled plastic jugs of

cleaning solution placed on the floor outside housing units. In

addition, an incident report noted that a “bottle of cleaner” was

found in a residential unit. Cleaning solution is dangerous if

in the hands of a suicidal inmate. In the two years before our

tour, at least two inmates attempted suicide by drinking cleaning

solution. 

SCADC also does not provide controls for cleaning

implements, such as mops and brooms. In one particular case, an

unlocked janitor’s closet located in the kitchen held un­

inventoried dangerous chemicals and cleaning implements. Inmates

who work in the kitchen have relatively unsupervised access to

this closet and can remove the chemicals and cleaning implements

and fashion them into weapons without SCADC’s knowledge. For

example, an incident report noted that an inmate threatened to

“shank or beat” another inmate with a mop ringer. Although we

are unaware whether the mop ringer in this incident was from the

kitchen, the incident underscores how cleaning implements can be

fashioned into a weapon. 

III. RECOMMENDED REMEDIAL MEASURES

In order to address the constitutional deficiencies

identified above and protect the constitutional rights of

inmates, we suggest that SCADC should implement, at a minimum,

the following measures:


- 20 ­

A.

MEDICAL CARE

	
1.	

Retain the services of a medical doctor, whose

responsibilities will include: supervising all

medical care rendered to inmates; monitoring care

of serious and/or chronic conditions; ensuring

that all inmates receive a health assessment

within fourteen days of intake; reviewing and

approving all prescription medication dispensed at

the jail; approving revised medical intake

screening forms and processes; and annually

reviewing all policies and procedures concerning

medical or mental health screening and/or the

provision care. 


2.	

Develop and implement a program to train all staff

to identify on intake symptoms of drug and alcohol

withdrawal, communicable diseases, acute or

chronic illness (including mental illness), and

potential suicide risk.


3.	

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 the physician when presenting symptoms

require such care.


4.	

Ensure that medical intake information sheets are

reviewed in a timely manner by trained medical

care providers. 


5.	

Revise the fee-for-service policy to remove the

disincentives to an inmate's seeking and receiving

necessary medical care for chronic, pre-existing

and/or life-threatening conditions. 


6.	

Establish contractual agreements with local

medical care providers to provide immediate

treatment to inmates with serious or potentially

serious acute medical conditions when appropriate,

regardless of the inmate’s ability to pay.


7.	

Conduct a sufficient initial health assessment,

including screening for Tuberculosis and sexually

transmitted disease, of all inmates in a timely

fashion.


- 21 ­

8.	

Adopt and implement appropriate clinical

guidelines for chronic diseases such as HIV,

hypertension, diabetes, asthma, and elevated blood

lipids, and policies and procedures on, inter

alia, timeliness of access to medical care,

continuity of medication, infection control,

medicine dispensing, intoxication/detoxification,

record-keeping, disease prevention, and special

needs. 


9.	

Adopt and implement a formal written plan to

prevent exposure of inmates and staff to

contagious diseases.


10.	 Ensure that nurse staffing is adequate for

inmates’ medical needs. 

B.	

C.	

MENTAL HEALTH CARE

1.	

Retain the services of a licensed mental health

provider or community mental health clinic whose

responsibilities will include supervising the

mental health care of inmates.


2.	

Develop and implement an appropriate intake

screening instrument that identifies mental health

needs, and ensure timely access to the mental

health professional when presenting symptoms

require such care.


PROTECTION FROM HARM

1.	

Ensure that staffing levels are appropriate to

adequately supervise inmates.


2.	

Develop and implement policies and procedures for

supervisory and/or management review and

investigation for all uses of force, to determine

whether force was appropriately used, whether

remedial training is necessary, or whether

facility policies should be revisited. 


3.	

Ensure that all staff are regularly trained

regarding the facility’s use of force policy and

use of force continuum.


- 22 ­

D.

ENVIRONMENTAL HEALTH AND SAFETY AND SANITATION

1.	

Develop and implement policies and procedures for

the handling and disposal of biohazardous

materials and potentially contaminated arrestee

clothing, including appropriate use of red

biohazard bags. 


2.	

Ensure that any inmate asked to clean up a

biohazard be properly outfitted with protective

materials and trained before cleaning.


3.	

Develop and implement a policy for washing and

drying of laundry, including prohibitions against

washing contaminated clothing.


4.	

Immediately implement the facility’s current tool

policy.


5.	

Develop and implement policies and procedures for

the control of chemicals in the facility and

supervision of inmates who have access to these

chemicals.


* * * * * * * * * * * *

We hope to work with the County in an amicable and

cooperative fashion to resolve our outstanding concerns regarding

SCADC. Assuming there is a spirit of cooperation from the County

and SCADC, we also would be willing to send our expert

consultants' evaluations of the facility under separate cover.

Although the expert consultants' evaluations and work do not

necessarily reflect the official conclusions of the Department of

Justice, their observations, analysis, and recommendations

provide further elaboration of the issues discussed in this

letter and offer practical, technical assistance in addressing

them.

We are obligated by statute to advise you that, in the

unexpected event that we are unable to reach a resolution

regarding our concerns, the Attorney General may institute a

lawsuit pursuant to CRIPA to correct deficiencies of the kind

identified in this letter forty-nine days after appropriate

officials have been notified of them. 42 U.S.C. § 1997b(a)(1).

We would prefer, however, to resolve this matter by working


- 23 ­

cooperatively with you, and we are confident that we will be able

to do so in this case. The lawyers assigned to this

investigation will be contacting the facility's attorney to

discuss this matter in further detail. If you have any questions

regarding this letter, please call Shanetta Y. Cutlar, Chief of

the Civil Rights Division's Special Litigation Section, at (202)

514-0195.

Sincerely,


/s/ Wan J. Kim

Wan J. Kim

Assistant Attorney General

cc:	 Stephen Tabor

Sebastian County Prosecutor

Frank Atkinson

Sebastian County Sheriff

Robert C. Balfe

United States Attorney

Western District of Arkansas