U.S. Department of Justice
Civil Rights Division

Assistant Attorney General
950 Pennsylvania Avenue, NW - RFK
Washington, DC 20530

November 19, 2009

The Honorable Andrew J. Spano
County Executive
938 Michaelian Office Building
148 Martine Avenue
White Plains, NY 10601
RE:	

CRIPA Investigation of the Westchester County Jail,

Valhalla, New York


Dear Mr. Spano:
We write to report the findings of the investigation of the Civil Rights
Division and the United States Attorney’s Office into conditions at the Westchester
County Jail (“WCJ” or “the Jail”). On August 30, 2007, we notified you of our intent
to conduct an investigation of WCJ pursuant to the Civil Rights of Institutionalized
Persons Act (“CRIPA”), 42 U.S.C. § 1997. As we noted, CRIPA gives the
Department of Justice authority to seek a remedy for a pattern or practice of
conduct that violates the constitutional rights of incarcerated persons.
On February 25-28, 2008, we conducted an on-site inspection at WCJ with
expert consultants in corrections and custodial medical and mental health care. We
interviewed Jail staff in administration, security, medical and mental health,
facilities management, and training. We also interviewed inmates. Before, during,
and after our visit, we reviewed an extensive number of videos and documents,
including policies and procedures, orientation and staff training materials, and unit
logs. We also reviewed numerous internally prepared Jail reports involving
incidents, uses of force, investigations, and disciplinary matters. In keeping with
our pledge of transparency and to provide technical assistance where appropriate,
we conveyed our preliminary findings to WCJ officials and legal counsel for
Westchester County (the “County”) at the close of our site visit.
We thank the staff at WCJ for their helpful and professional conduct
throughout the course of the investigation. The County provided us with access to
records and personnel, and responded to our requests, before, during, and after our
on-site visit in a forthcoming manner. We also appreciate the County’s

-2receptiveness to our consultants’ on-site recommendations. Accordingly, we have
every reason to believe that the County is committed to remedying all known
deficiencies at WCJ.
Consistent with the statutory requirements of CRIPA, we now write to advise
you of the findings of our investigation, the facts supporting them, and the
minimum remedial steps that are necessary to address the deficiencies we have
identified. See 42 U.S.C. § 1997b. As described more fully below, we conclude that
certain conditions at WCJ violate the constitutional rights of inmates. In
particular, we find that inmates confined at WCJ are not adequately protected from
harm, including physical harm from use of excessive by staff. In addition, we find
that inmates do not receive adequate medical and mental health care.1
As discussed in this letter, these conditions have resulted in serious harm to
WCJ inmates. The number of serious incidents discussed herein indicates that
WCJ is not adequately providing for the safety and well-being of the inmates.
I. BACKGROUND
The WCJ is located in Valhalla, New York, within Westchester County. The
Jail comprises three divisions which house pre-trial detainees and sentenced
inmates: the Jail Division,2 the Penitentiary Division,3 and the Women’s Unit.4
The Jail has an operating capacity of 1,693 beds, and employs approximately 900
uniformed and civilian employees. During our visit there were 1400 inmates
detained at the Jail.

1

This letter does not encompass any findings or conclusions with respect to
whether WCJ has violated the provisions of Title II of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12131 et seq., and the Department of Justice's
implementing regulation, 28 C.F.R. Part 35.
2

The Jail Division houses pre-trial and sentenced inmates who have sentences
of more than one year, but who are awaiting transfer to the New York State
Department of Correctional Services (“NYSDCS”).
3

The Penitentiary Division houses male inmates with sentences of less than
one year.
4

The Women’s Unit houses pre-trial and sentenced female inmates with
sentences of less than one year, and female inmates who have been sentenced to
prison terms exceeding one year but are awaiting transfer to the NYSDCS.

-3II. LEGAL STANDARDS
CRIPA authorizes the Attorney General to seek injunctive relief to enforce
the constitutional rights of inmates subject to a pattern or practice of
unconstitutional conditions in jails and prisons. 42 U.S.C. § 1997a.
Prison administrators are constitutionally required “to take reasonable
measures to guarantee the safety of inmates.” Hudson v. Palmer, 468 U.S. 517, 526
(1984). When a jurisdiction takes a person into custody and holds him against his
will, the Supreme Court has held that the Constitution “imposes upon it a
corresponding duty to assume some responsibility for his safety and general well­
being.” County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (quoting
DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 199-200
(1989)); see also Harris v. Westchester County Dept of Corr., No. 06 Civ. 2011
(RJS), 2008 WL 953616, at *6 (S.D.N.Y. Apr. 3, 2008).
A.

Protection From Harm

The Eighth and Fourteenth Amendments protect inmates and pre-trial
detainees from present, continuing, and future harm. See Hudson v. McMillian,
503 U.S. 1 (1992); Farmer v. Brennan, 511 U.S. 825, 832 (1994); 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 v. Wolfish,
441 U.S. 520, 535 (1979) (citations omitted)). While the constitutional rights of
convicted prisoners and pre-trial inmates are guaranteed under different
constitutional norms, courts have consistently held that pre-trial detainees “retain
at least those constitutional rights . . . enjoyed by convicted prisoners [under the
Eighth Amendment].” Bell, 441 U.S. 520 at 545; Benjamin v. Fraser, 343 F.3d 35,
50 (2d Cir. 2003) (“under the Due Process Clause, [pre-trial detainees] may not be
punished in any manner – neither cruelly and unusually nor otherwise”); see also
Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (noting that courts apply the
“Eighth Amendment deliberate indifference test to pre-trial detainees bringing
actions under the Due Process Clause of the Fourteenth Amendment);
Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996).
The Eighth and Fourteenth Amendments forbid excessive physical force
against inmates and pre-trial detainees. See Hudson, 503 U.S. 1; Farmer, 511 U.S.
at 832; see also Walsh, 194 F.3d at 48; Brown v. Doe, 2 F.3d 1236, 1242 n.1 (2d Cir.
1993) (“After conviction, the Eighth Amendment ‘serves as the primary source of
substantive protection . . . in cases . . . where the deliberate use of force is
challenged as excessive and unjustified.’”) (citations omitted). Constitutional
standards also apply even when the use of force does not result in significant injury.

-4See Walsh, 194 F.3d at 48. Allegations of excessive force are evaluated under two
components: “(1) a subjective component which focuses on the defendant’s motive
for his conduct; and (2) an objective component which focuses on the conduct’s
effect.” Jeanty v. County of Orange, 379 F. Supp. 2d 533, 540 (S.D.N.Y. 2005)
(citing Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000)).
Under the subjective component, courts examine whether the force applied
was applied “maliciously and sadistically to cause harm” rather than “applied in a
good-faith effort to maintain or restore discipline.” Jeanty, 379 F. Supp. 2d at 540
(quoting Hudson, 503 U.S. at 7, and citing Blyden v. Mancusi, 186 F.3d 252, 262-63
(2d Cir. 1999)) (internal quotation marks omitted). In determining whether
excessive force was used, courts examine a variety of factors, including:
[T]he need for 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 (internal quotation marks and citation omitted); see also
Jeanty, 379 F. Supp. 2d at 540 (citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.
2003)). Under the objective component, courts examine whether the force applied
was “sufficiently serious by objective standards.” Id. (quoting Griffin v. Crippen,
193 F.3d 89, 91 (2d Cir. 1999)) (internal quotation marks omitted). Although the
malicious and sadistic use of force by prison officials violate contemporary
standards of decency, the Second Circuit has held that “not every push or shove . . .
violates a prisoner’s constitutional rights.” Boddie v. Schnieder, 105 F.3d 857, 862
(2d Cir. 1997) (internal quotation marks omitted). However, “a showing of extreme
injury is not required to bring an excessive force claim if the alleged conduct
involved unnecessary and wanton infliction of pain.” Jeanty, 379 F. Supp. 2d at 540
(quoting Sims, 230 F.3d at 21-22 (quoting Hudson, 503 U.S. at 10)) (internal
quotation marks omitted).
It is widely recognized that jail officials bear an affirmative duty to intercede
on behalf of an inmate when the officer witnesses other officers using excessive
force against the inmate. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994);
Sims v. Griener, No. 00 Civ. 2524 (LAP), 2001 WL 1142189, at *5 (S.D.N.Y.
Sept. 27, 2001); see also Allen v. City of New York, 480 F. Supp. 2d 689 (S.D.N.Y.
2007) (holding that a prisoner could proceed with claim that officers failed to
intervene when a fellow officer subjected the inmate to excessive force). “The duty
arises if the officer has a reasonable opportunity to intercede.” Jones v. Huff, 789 F.
Supp. 526, 535 (N.D.N.Y. 1992) (citing O’Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d
Cir. 1988)).

-5The right to be protected from harm includes the right to be reasonably
protected from constant threats of violence. See Farmer, 511 U.S. at 833. Prison
officials have a duty to protect inmates from harm caused by other inmates and
from excessive physical force by correctional staff. See id.; see also
Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1986). 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 v. Amicucci, No. 05 Civ. 5206 (GEL), 2007 WL 840124, at
*5 (S.D.N.Y. Mar. 19, 2007) (quoting 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].”
Id.; see also Hayes, 84 F.3d at 621 (reversing summary judgment on behalf of prison
officials where genuine issues of material fact remained as to officials’ knowledge of
the substantial risk of harm to inmate).
B.

Medical Care

A prison official’s deliberate indifference to a prisoner’s serious medical needs
violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976);
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); Odom v. Kerns, No. 99 Civ.
10668 (KMK) (MHD), 2008 WL 2463890, at *6 (S.D.N.Y. June 18, 2008). Pre-trial
detainees are protected against deliberate indifference to their serious medical
needs under the Fourteenth Amendment. See Harris, 2008 WL 953616, at *6
(“Pretrial detainees’ claims concerning the alleged denial of adequate medical care
also implicate the Due Process Clause . . . . The Second Circuit has found that an
unconvicted detainee’s rights are at least as great as those of a convicted prisoner.”)
(quoting Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)). Thus, “the official
custodian of a pretrial detainee may be found liable . . . if the official denied
treatment needed to remedy a serious medical condition and did so because of his
deliberate indifference to that need.” Id. (quoting Weyant, 101 F.3d at 856).
“Deliberate indifference” involves both an objective and a subjective
component. The objective component is met if the deprivation is “sufficiently
serious.” Farmer, 511 U.S. at 834. Prison officials may not refuse, unreasonably
delay, or intentionally interfere with medical treatment for incarcerated

-6individuals. When an inmate complains about a delay in treatment, “it’s the
particular risk of harm faced by a prisoner due to the challenged deprivation of care
. . . that is relevant for Eighth Amendment purposes.” Smith v. Carpenter,
316 F.3d 178, 186 (2d Cir. 2003); see also Blaylock v. Borden, 547 F. Supp. 2d 305,
310-11 (S.D.N.Y. 2008).
Prison officials also may not provide an easier but less effective course of
treatment nor may they offer only cursory medical care when the need for more
serious treatment is obvious. See Estelle, 429 U.S. at 104-05. Failure to provide
adequate medical care to address an inmate’s serious medical needs may constitute
a constitutional violation. See Jones v. Westchester County Dep’t of Corr. Med.
Dep’t, 557 F. Supp. 2d 408, 413-14 (S.D.N.Y. 2008).
A jail’s obligation to provide adequate medical care includes a duty to provide
adequate mental health care. See Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir.
1989) (“We think it plain that from the legal standpoint psychiatric or mental
health care is an integral part of medical care”); accord Atkins v. County of Orange,
372 F. Supp. 2d 377, 408 (S.D.N.Y. 2005) (“In the Second Circuit, it is equally clear
that psychiatric or mental health care ‘is an integral part of medical care’”) (citing
Langley, 888 F.2d at 254), aff’d, 248 Fed. Appx. 232 (2d Cir. 2007). Where a jail’s
“actual practice” towards treatment of mentally ill inmates is clearly inadequate,
the facility may be held to be “on notice” at the time of an inmate’s incarceration
that there is a substantial risk of deprivation of necessary care.
Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004).
In addition, detainees have a right to be free of bodily restraints, such as
shackles or a restraint chair, unless the facility demonstrates a legitimate
penological or medical reason for the restraint. See, e.g., Washington v. Harper,
494 U.S. 210, 220-23, 236 (1990) (prison may forcibly administer anti-psychotic
drugs if supported by legitimate penological or medical reasons, despite inmate’s
liberty interest in avoiding forced medication); Doe v. Dyett, No. 84 Civ. 6251
(KMW), 1993 WL 378867, at *2-3 (S.D.N.Y. Sept. 24, 1993) (holding that forced
administration of medicine to inmate “jeopardizing his own or the institution’s
safety . . . does not amount to a due process violation”). Restraints imposed by
correctional officers that are medically unjustifiable and have no adequate security
rationale infringe on an inmate’s due process rights. See Smith v. Coughlin, 748
F.2d 783, 787 (2d Cir. 1984) (holding that restraints on inmates must be supported
by “penological justification”).

-7III. FINDINGS
We found that WCJ has a pattern of failing to: (1) adequately protect
inmates5 from harm and serious risk of harm from staff; and (2) provide inmates
with adequate medical and mental health care. These deficiencies violate WCJ
inmates’ constitutional rights.
A.

INADEQUATE PROTECTION FROM HARM

Although the violence present in any correctional setting necessarily permits
an appropriate use of force, the Eighth Amendment forbids excessive physical force
against prisoners. Hudson, 503 U.S. at 9. Corrections officials must take
reasonable steps to guarantee inmates’ safety and provide “humane conditions” of
confinement, including taking reasonable steps to protect inmates from physical
abuse and use of excessive force. Farmer, 511 U.S. at 832-33. Providing humane
conditions requires that a corrections system must satisfy inmates’ basic needs,
such as their need for safety. To ensure reasonably safe conditions, officials must
take measures to prevent the use of unnecessary and inappropriate force by staff.
Officials must also provide adequate systems to investigate incidents of harm,
including staff misconduct and alleged physical abuse of inmates. As illustrated
below, WCJ fails to provide constitutionally adequate protection from harm for its
inmates.
1.

Use of Excessive Force By WCJ Staff

We found evidence of a pattern and practice of use of excessive force by the
Emergency Response Team (“ERT”).6 Although an appropriate use of force in a
correctional setting is permissible and often necessary to adequately ensure staff
and inmate safety, the law 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, 503 U.S. 1 at 7.

5

From here forward, both pre-trial detainees and convicted prisoners will be
called “inmates.”
6

The ERT is a team of correction officers and supervisors who respond to
incidents such as inmate-on-inmate and inmate-on-staff assaults. Each ERT
comprises several correctional officers protected in full riot gear and helmets, and
falls under the command of the Emergency Services Unit (“ESU”).

-8Generally accepted correctional practices provide that appropriate uses of
force in a given circumstance should be proportionate to the threat posed by the
inmate. Absent exigent circumstances, lesser forms of intervention, such as issuing
disciplinary infractions or employing passive escorts, should be used or considered
prior to more serious and forceful interventions.
However, and as detailed below, our review of videotaped use of force
incidents reflect a pattern and practice in which the ERT uses excessive force
against inmates. In the videos we reviewed, ERT officers are seen shoving inmates
aggressively into fixed objects when less injurious tactical holds could be safely
employed. The officers are seen routinely applying needlessly painful escort
techniques (bent wrist locks while apparently applying intense pressure). The
officers are also seen routinely employing crowd control contaminants (MK-9 in a 16
ounce canister) when they are tactically contraindicated rather than utilizing an
equally effective personal size canister (MK-4 in a three ounce canister).7 Also
troubling is the fact that the ERT officers often seem to disregard some inmates’
mental impairments in use of force incidents, which appears to greatly heighten the
volatility of a given situation. Indeed, they utilize threatening and aggressive
verbal strategies, which tend to escalate rather than de-escalate a potentially
volatile situation.
In arriving at our findings, we reviewed hundreds of WCJ use of force
incidents from 2006-2007, dozens of which were captured on videotape. This review
revealed a failed administrative review process at WCJ and a pattern and practice
of the ERT to engage in needlessly aggressive and injurious force against inmates.
We are concerned both about the nature and severity of the force used by the ERT,
and the paucity of the subsequent investigations, particularly where the evidence
clearly indicates that supervisory review and/or investigations were warranted.
The following are but some of the incidents that highlight these deficiencies.
•	

On January 11, 2007, AA, a 38-year-old female, refused orders to lockin her cell.8 According to the sole ERT report written for this incident,
ERT “attempted to take control of AA but she resisted. ERT then took
control of her and placed her in restraints.” The report indicates that
AA was then escorted to a search area where she “became very
combative,” at which time [Oleoresin Capsicum] (“OC”) spray was

7

During our tour of WCJ, we brought the problematic use of MK-9 canisters to
the attention of WCJ management and understand that a memorandum directing
the discontinuance of such tactic was issued.

8	

To protect inmates’ identities, we use fictitious initials throughout this letter.

-9administered.9 It appears that the report was reviewed by a sergeant
directly involved in the incident. A video of this incident was recorded;
we found no evidence that the video was ever reviewed by an
independent supervisor.
In our review of the video of this incident, we found that not only did the
report inaccurately characterize the force used against AA, but also that the force
used was excessive. Our review of the video indicates that what the officer reported
as “taking control” of AA was really the ERT officer driving AA’s head to a wall
while other officers took her to the ground to apply handcuffs and leg restraints.
We also observed that AA was escorted with a bent wrist tactic, which appeared to
cause her substantial and unnecessary pain. Finally, we are concerned that AA was
sprayed, at point blank range, in the face with OC spray from a MK-9 canister
while she was lying prone and cuffed on the floor.10
•	

In another use of force report, also dated January 11, 2007, a WCJ
officer described the incident as follows: “ERT entered the inmate
receiving holding cell and attempted to restrain inmate [AB] who
resisted ERT.”

Our review of the video of this incident showed that the ERT entered a
holding cell where AB and several other inmates were housed, and ordered them to
place their hands on the wall. The video shows that AB complied. The video then
shows that an ERT officer ordered AB to his knees; while he was attempting to
kneel, he was thrown into the wall, causing a wound to open over his eye. Inmate
AB was then cuffed and escorted with a bent wrist technique to receive medical aid.
We were troubled to see this use of excessive force used against a compliant inmate
who did not appear to pose a threat to officers or himself. Indeed, the video does not
suggest that the force used was justifiable or necessary to achieve a legitimate
penological interest. This incident should have been reviewed and investigated by
the Special Investigations Unit (“SIU”) to assess the appropriateness of the use of
force used; we found no evidence that it was.11
9

OC spray, commonly known as pepper spray, is a chemical agent that
irritates the eyes and respiratory system of a target.
10

MK-9 canisters are often employed for crowd control situations, and pose a
serious risk of unnecessary harm when used on a restrained individual at point
blank range, as was done in this incident.
11

The SIU is assigned the responsibility for investigating “any serious
allegation regarding the inappropriate or unlawful use of physical force or deadly
physical force by an employee.” See SOP II 07-02.

- 10 •	

During a February 14, 2008, strip search of AC, the ERT took him to
the ground and sprayed him in the face with an MK-9 canister. The
sole report filed for this incident alleged that AC “became combative,”
and thus the MK-9 was used.

In our review of the video, it did not appear that AC was combative during
the strip search. In fact, AC was compliant with the officers’ commands. We
interviewed AC, and his recollection of the incident is consistent with our viewing of
the video.
•	

On May 22, 2007, inmate AD was ordered to be placed on suicide
watch from the booking area where he was housed. When AD refused
orders to comply, the sole use of force report for this incident, written
by an ERT sergeant, described the incident as follows: “necessary force
was used and the inmate was placed in full restraints.”

Our review of the video of this incident shows the ERT rushing AD, knocking
him against the wall and to the floor. We did not observe any indication that AD
was combative. As a result, AD sustained a bloody nose and a lip laceration. We
fail to see that this force was “necessary” as described in the report, especially in
light of the fact that 8-10 officers responded to handle this incident. This incident
should have been referred for investigation rather than addressed in a conclusory
report that the force was necessary. We found no evidence that any supervisor
conducted any form of review.
•	

Following a September 17, 2007, use of force incident with inmate AE,
an ERT sergeant wrote a report in which he described AE as “violently
resisting” the attempts of team members to cuff him necessitating a
“one second burst of [OC] to halt his violent behavior.”

The video shows that AE was in a fully prone, face down position, and
surrounded by the ERT when a MK-9 canister appears on camera and is discharged
at point blank range in AE’s face. In an interview with AE, he claimed to have been
struck with a closed fist while in the prone position. The tape also shows one of the
ERT officers dragging AE along the floor by his handcuffs. Even a casual review of
this video should have prompted some level of investigative inquiry because the
video showed that unsafe and highly injurious tactics were used against AE by
members of the ERT.
•	

On October 16, 2007, inmate AF was ordered to be placed on a suicide
watch. The ERT sergeant who prepared the use of force report

- 11 conclusorily described AF as “combative” and in a “blind rage.” On the
video tape, the sergeant repeatedly describes AF as “highly combative.”
He claimed he used OC spray to “halt his rage.”
In our review of the 40-plus minute video of this incident we found the use of
a chemical agent inappropriate, claims of resistance exaggerated, and ERT’s tactics
unsafe and unprofessional. When the tape begins, AF, already restrained, is taken
nude to a holding cell and placed in a painful escort position, at which time he cries
out and is told to “shut up.” AF is then bent over causing him to have difficulty
breathing; AF is visibly bleeding. AF is then taken to receive medical attention and
thereafter escorted in a needlessly painful manner to the forensic unit where he is
thrown on the bed of the cell. AF repeatedly asks for water and is again told to
“shut up.” While lying face down in a prone position under the total control of ERT
officers and lying still, he is told to stop resisting or chemical agents will be used.
He is then thrown to the floor at which time the sergeant, utilizing a MK-9 canister,
sprays AF with OC spray at point blank range.
Next, the ERT exits and secures the cell door. Inmate AF’s movements about
the cell appear to be reactions to the OC spray. It is these reactions that the ERT
sergeant describes as “extremely combative” behavior. The ERT re-enters the cell
and places the subject in four-point restraints during which time officers apply their
body weight in an unsafe manner on his legs and chest.12 As nurses enter to treat
AF, an officer can be heard to say “he ain’t getting nothing.” The following day a
watch commander directed a memo to the warden recommending that the video of
this incident be “. . . accessed and examined.” We found no evidence that such a
review was ever conducted.
•	

On September 22, 2007, inmate AG, described as “nervous and
paranoid” by WCJ staff, was strip searched although he “had to be
constantly physically directed using soft hand techniques to complete
the search.” After the strip search he was left unrestrained in the cell.
According to the report, the ERT returned to move AG to booking for a
suicide watch. He was ordered to “kneel down against the back wall of
the cell in the compliance position.” He did not comply and OC spray
was dispersed through the cuff port of the cell door.13 The door was

12

Applying such weight on an individual poses significant risks of positional
asphyxia. Positional asphyxia is known to restrict breathing, and in some cases,
cause death.
13

A “cuff port” is a small opening on the front of a cell that has a secure flap
through which a food tray may be passed or hands presented by a detainee for
cuffing.

- 12 then opened and he immediately fell to the ground face down in a
prone position and was once again restrained.
We conclude that WCJ unjustifiably used OC spray on AG. Inmate AG does
not appear combative in the video, and appears disoriented. An officer on the video
can be heard to say that AG has “trouble with commands.” Of particular concern,
as the sergeant disperses the OC spray, a female voice can be heard to say “he’s got
asthma.” A review of this video should have prompted an investigative inquiry on
whether the use of OC spray was contraindicated both because of his mental state
and the possibility that he had asthma.
•	

The reporting ERT captain in a June 18, 2007, use of force report
summarized an incident with inmate AH as follows: “During the
search, detainee was not complying with numerous orders. He refused
to remove his clothing and he disobeyed orders to face the rear wall.
He became combative and resistive. His actions necessitated him
being restrained. Chemical agents were deployed in order to regain
control and compliance.”

Our review of this incident is inconsistent with the captain’s report. First,
AH, who has a history of psychiatric disorders, appears compliant with the series of
specific orders he was given to remove his clothing. Second, as AH was ordered to
remove his underwear, an officer immediately took him to the floor of the cell,
where AH was sprayed with OC from a MK-9 canister. The video does not
corroborate the ERT captain’s report that AH was combative. Of particular note, as
AH is prone on the floor, the video shows that a sizeable pool of blood begins to grow
from the open wound to his head he sustained during the use of force.14 Given the
injuries AH sustained, and the questionable use of the MK-9, an investigation
should have been conducted. We found no evidence that an investigation was
conducted.
•	

14

On April 20, 2007, inmate AI refused to lock-in her cell, as ordered.
The ERT responded. The reporting sergeant described the use of force
incident as follows: AI “became combative and started kicking and
cursing ERT” when they attempted to place her in restraints. Once in
restraints she was escorted to the elevator at which time she “dropped
to the floor and was non-responsive.” After exiting the elevator she

Notably, AH was unable to make his court-mandated appearance as he had
to be taken to the hospital for treatment of the serious head wound.

- 13 was taken to a medical station where “she was evaluated medically
and psychologically . . . During the evaluation inmate [AI] attempted
to spit on staff. Because of her actions, a spit hood was placed on her.”
Our review of the 23-plus minute video of this incident reveals discrepancies
between the sergeant’s report and the video. First, the video does not support the
sergeant’s claim that AI was “combative” and “kicking” during the initial restraint.
AI in fact is shown cooperating with officers but was asking to speak with a
supervisor. As AI is placed on the elevator, she is thrust against the elevator walls
with officers pressing against her as she cries out in pain, claiming officers hit her
head. She drops to the floor and is suddenly quiet. As AI is removed from the
elevator, she again asks to speak to a sergeant. As the officers pick her up and
begin to escort her with a bent wrist hold she cries out in pain saying “you are
hurting my wrist.” Once AI arrives at the medical station, officers place her hands
in a painful position over the back of a chair. AI again cries out in pain, and
requests that medical personnel examine her wrist. The video provides no evidence
that medical personnel examined her wrists.15 This incident should have been
thoroughly investigated, especially given the graphic evidence that can be seen
throughout the course of the video. We found no evidence that a supervisor was
called to the scene or that an investigation was conducted.
2.

Inadequate Review of Use of Force Incidents

We found that WCJ inadequately reviews use of force incidents to prevent a
pattern of use of excessive force against inmates. As a result, staff who subject
inmates to excessive force are not adequately identified, nor are appropriate
remedial measures taken.
Our review of numerous use of force incidents indicated that WCJ’s Use of
Force Standard Operating Procedures (“SOP”) concerning administrative review of
use of force incidents was not followed. In an interview with the SIU Commander
during our site inspection, he advised that his unit did not initiate any use of force
investigations in 2007, nor were any use of force incidents referred to his unit for
the year. Furthermore, in the course of our tour of the facility, we were unable to
identify a supervisory official independent of the ERT who is responsible for

15

The video shows that AI consistently requested medical attention for the pain
in her wrist. After leaving the medical area, AI is escorted to booking and continues
to cry out in pain. After she is turned over to the female officers for the strip search
she becomes compliant but continues to cry of pain from her wrist. After the strip
search, the ERT re-enters the room and re-cuffs her for the short distance to the
suicide watch cell while she cries out in pain.

- 14 reviewing incident videos. Instead of SIU or other independent review, we found
that first line supervisors of the ERT routinely signed off on use of force reports
without comment. Of particular concern, we found that supervisors frequently
review their own actions when involved in use of force incidents.16 Failure to review
uses of force effectively provides Jail Staff with unfettered use of force. As a result,
WCJ is unable to adequately protect its inmates from harm.
Indeed, in 2007, only two investigations of use of force incidents were
completed by jail security administrators. Neither of these investigations were
initiated by WCJ officials. One investigation was conducted only after an inmate,
DU, filed suit against WCJ. The second resulted from a referral from the
Westchester County District Attorney’s Office regarding allegations of an inmate,
DV, concerning excessive force. We found no evidence that WCJ officials initiated
investigations prior to the referrals. Further, we were concerned about the
adequacy of these two investigations. One of the two investigations appears to be
simply a cursory review of the detainee’s complaint. The second investigation failed
to address or investigate a questionable use of crowd control contaminant.17
3.

Inadequate Use of Force Documentation

Effective measures to prevent excessive and inappropriate uses of force start
with the adequate reporting of information, which permits the identification of
potential problem cases and effective internal investigations. We find that WCJ
fails to adequately document uses of force in its written reports, and thus fails to
adequately protect inmates from harm. In light of discrepancies between the video
we reviewed and the written reports noted above, we are concerned with the
inadequate documentation on other uses of force where no videos were present.
We begin by noting that WCJ fails to maintain an adequate use of force
reporting mechanism. Notably, WCJ’s Use of Force SOP V 01-09 (April 25, 2002)
does not contain a generally applicable reporting requirement for correction officers
who use force on inmates or witness correction officers’ use of force on inmates.
Similar to the deficiencies we observed in the video, we were unable to identify a
supervisory official outside of the ERT who is responsible for reviewing incident
reports. As noted above, the commander of the SIU told us during our tour that his
unit did not conduct any use of force investigations for 2007. Compounding these
deficiencies, while the SIU receives copies of all special reports, they are reviewed
for informational purposes only. The SIU does not have any guidelines or criteria
16
17

See Westchester County Document Submission.

The litigation file revealed that these two use of force incidents were not
investigated prior to the commencement of litigation.

- 15 for reviewing use of force incidents, and WCJ does not contain a standardized use of
force reporting form.
Many WCJ officers simply fail to document uses of force, or do so
inadequately. Our review of all use of force incidents for 2007 indicate that WCJ
officers routinely file incomplete, vague, or conclusory reports. As noted above, our
review also indicates that in some instances exaggerated reports are filed as well.
The following reports are so inadequate that they do not allow a substantive review
of the incidents by senior officials, and may fail to disclose critical information. For
example:
•	

Only one of the two officers involved in a November 22, 2007 incident
filed a use of force report. The only detail provided in the sole report
was: “while inmate [DD] was being stripped he turned in an
aggressive manner, myself and C. O. had to apply restraints, inmate
continued to resist, after given numerous orders.”

•	

On November 11, 2007, the ERT responded and used force to subdue
DE, but only one member of the ERT filed a report in which the ERT’s
actions were described. The force used, however, was inadequately
described as follows: “when the restraints were removed from [DE], he
became combative with ERT. ERT quickly subdued [DE] and applied
restraints.”

•	

Only one member of the ERT who responded to restrain DF filed a
report in which the force used was described. Again, the report was
inadequate. The December 12, 2007, incident was inadequately
documented as follows: “inmate became violent and ERT use
necessary force to place the inmate in full restraints.”

•	

On November 23, 2007, the ERT responded and used force against DG,
but only one member of the ERT filed a report in which force was
described. The correction officer inadequately described the incident,
and force used, as follows: “ERT proceeded with the search and [DG]
became assaultive and combative. ERT regained custody of [DG] and
he continued to deal with my orders with indifference. [DG]’s head
began to shake and he appeared to be in some sort of medical distress.”

•	

Even though the ERT responded and used force against DH on October
13, 2007, only one member of the ERT filed a report, in which force
was described as follows: “There he was being removed from
handcuffs, and became unruly. ERT used necessary force to regain
control and place the inmate in handcuffs and leg irons.”

- 16 •	

On January 2, 2007, an ERT responded and used force against DI in
order to have the inmate remove his clothing. Only one member of the
ERT filed a report. The forcible disrobing of DI is inadequately
summarized in the report as follows: “I gave him an order to remove
all of his clothing. [DI] did not comply with that order. I then ordered
ERT officers to remove the clothing, necessary force was used to obtain
[sic] this task.”

Finally, we were concerned with the video recording techniques used by WCJ
staff. In many of the videos we viewed, the usefulness of the tapes was limited
because WCJ staff failed to focus the lens and properly position the filming officer to
allow an adequate recording of the incident. In some videos, it appeared that the
filming officer permitted WCJ staff to physically obstruct the line of sight of the
recording.18 Further, WCJ operates without a written policy on the retention of use
of force videotapes.
4.

	Detainee Grievances

WCJ fails to maintain an adequate detainee grievance system, further
contributing to the problems of monitoring and investigation of use of force
incidents. An inmate grievance system is a fundamental element of a functional jail
system, intended to provide a mechanism for allowing inmates to raise conditions of
confinement related concerns and issues to the administration. 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 threat of reprisals. Staff responsible for answering inmate grievances
should do so in a responsive and prompt manner. We found a number of serious
concerns with the grievance process at WCJ.
Despite the pattern of force described above, the Facility Grievance
Coordinator reported that no grievances have been filed by WCJ detainees for 2006
and 2007. This clearly indicates that any grievance system is not functional, thus
depriving WCJ of a valuable source of information concerning use of force incidents.

18

The late Judge Charles L. Brieant, Jr., who presided over the criminal
proceedings against former WCJ Corrections Officer Paul Cote, observed similar
problems with the ERT videotapes, noting: “when the real action occurs, for some
reason or another, the lens is either pointed at the floor or the ceiling.” Transcript
of Proceedings, dated April 20, 2006, United States v. Cote, No. 06 Cr. 121 (CLB) at
17.

- 17 At least a partial explanation for the lack of grievances alleging excessive force is
the requirement that a detainee is provided a grievance form “only after exhausting
the informal complaint process.” (See SOP V 02-07, Inmate Grievance Program).
Requiring a detainee to pursue the matter informally compromises the review and
investigative processes, especially in those instances in which unlawful actions may
have occurred. Detainees who may have been subjected to unlawful force will at
best be reluctant to seek resolution from those who may have witnessed or been
involved in the very actions that would form the basis for the grievance.
5.	

Employee Disciplinary Sanctions for Use of Force
Violations

WCJ fails to adequately discipline officers for using excessive force against
inmates. To ensure reasonably safe conditions for inmates, correctional facilities
must develop and maintain adequate systems to investigate staff misconduct,
including alleged physical abuse by staff. Generally accepted correctional practices
require clear and comprehensive policies and practices governing the investigation
of staff use of force and misconduct. Adequate policies and practices include, at a
minimum, screening of all Use of Force and Incident Reports, specific criteria for
initiating investigations based upon the report screening, specific criteria for
initiating investigations based upon allegations from any source, timelines for the
completion of internal investigations, and an organized structure and format for
recording and maintaining information in the investigatory file. The investigation
must also be and appear to be unbiased.
In our investigation, we found that WCJ fails to initiate disciplinary
measures to correct officers who use excessive force. This may be due to lack of
oversight and adequate reporting, or also because of deficiencies within WCJ
policies. While WCJ officers are subject to a Code of Conduct (SOP II 20-02), the
Code has not been revised since 1998. The Code does not contain provisions that
prohibit physical abuse of inmates, and does not define excessive or unnecessary
force. While the policy prohibits force to be used as punishment, the Code fails to
provide proper guidance regarding employee sanctions when excessive force is used.
6.	

Inmate Classification

Although WCJ utilizes a charge-based classification scheme, i.e., custody
categories determined largely based on the detainee’s criminal charge, a review of
the December 27, 2007 Housing Roster indicates that detainees of as many as three
different housing categories are routinely co-mingled. For instance, 2-NE in the

- 18 New Jail houses inmates of three separate custody categories (AA, A, & B).19
Various levels of co-mingling of detainees by custody categories can be seen
throughout the facility.
Generally accepted professional standards require that jails adequately
classify and segregate inmates based on legitimate penological needs. The primary
purpose of an inmate classification scheme is to provide separate housing for
detainees based on differing levels of needs and security risks. The routine and
indiscriminate mixing of custody categories is often associated with high levels of
inmate-on-inmate violence; such high levels most often occur within institutional
settings and crowded multiple occupancy housing (double/triple celling and
predominance of dorm housing). WCJ operates below capacity with single celling
and a 1:1.8 officer/inmate ratio. A review of all incident reports for 2007 and other
data on inmate safety indicates that WCJ does not have high levels of
inmate-on-inmate violence. However, these same incident reports do provide
examples of serious assaults between and among detainees of different custody
categories. While WCJ officials do routinely move to separate such offenders by
housing and “keep separate” designations, WCJ officials should seriously consider
implementing a more objective classification scheme that anticipates an increase in
population, when single celling the entire population is no longer possible. Any
abnormal rise in inmate-on-inmate violence involving predatory conduct by high
custody offenders against low custody offenders, regardless of the current favorable
conditions (a single celled population under capacity), will require a more objective
scheme that provides for housing separation based on security risks.
7.

Inmates in Protective Custody

WCJ provides separate housing for inmates requiring protective custody.
These inmates are confined in a virtual lockdown setting (in-cell for over 22 hours a
day). While these inmates may require separation from general population inmates,
access to programs and services for such a population is still required. Unless their
custody level dictates otherwise, such detainees should be permitted more than one
hour out-of-cell per day; the current management of these Protective Custody
detainees constitutes, for all practical purposes, punitive segregation housing.

19

WCJ uses five custody categories to classify its inmates. AAA is the highest
level security classification. AA and A follow. Generally, AA and A classifications
are assigned to inmates charged with crimes against persons. B is next highest.
Generally, B is assigned to inmates charged with crimes against property. C is the
lowest security level classification.

- 19 B.

MEDICAL CARE DEFICIENCIES

Jail officials are responsible for providing adequate medical care to inmates.
Moreover, 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 there are certain aspects of the
medical care and treatment offered at WCJ to be commended, for example, the
Jail’s affiliation with the Westchester Medical Center,20 use of Telemedicine and
Digital Radiography,21 and Methadone treatment program. However, there are
some areas where the medical care provided at WCJ falls below the constitutionally
required standards of care. Specifically, we found the following deficiencies:
inadequate infection control; inadequate access to dental care; and an inadequate
medical grievance process.22
1.

Infection Control

WCJ fails to adequately treat, contain, and manage infectious disease. This
failure is dangerous and places inmates, staff, and the community at unnecessary
risk of serious health problems. The WCJ’s management of Methicillin resistant
Staphylococcus aureus (“MRSA”)23 deviates from generally accepted correctional
20

As a result of this relationship, WCJ inmates have ready access to clinical
specialists, providers, and nurses. The relationship also provides additional clinical
services and academic resources to the health services in the jail.
21

Telemedicine and Digital Radiography is a technology where medical
information is transferred via telephone, the Internet or other networks for the
purpose of consulting, and sometimes remote medical procedures or examinations.
These technologies can improve the quality of care and access to specialty services
beyond the scope of what the Jail may be able to provide.
22

While at the facility we observed a newly admitted inmate being interviewed
in an open area within sight and sound of other inmates and correctional staff.
While this appeared to be an isolated incident, all attempts should be made to
safely conduct health examinations with sight and sound privacy.
23

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
http://www.aafp.org/fpr/20041100/10.html. (Last visited May 21, 2009.) MRSA is
resistant to common antibiotics, such as methicillin, oxacillin, penicillin, and
amoxicillin. MRSA is almost always spread by direct physical contact. However,

- 20 medical standards. Inmates with infectious diseases at WCJ are not appropriately
contained, treated, or managed. Indeed, MRSA infections typically occur more often
in an environment of congregated living such as WCJ. It is important for medical
staff to be aware of MRSA infections because MRSA is contagious and can lead to
serious medical complications, including death. Improper treatment may prolong
the condition and the period of contagion.
At the time of our on-site investigation, WCJ had reported no MRSA
infections at its facility for several months. Given the propensity for MRSA to
flourish in an environment such as WCJ, the lack of recorded cases is unsettling.
Indeed, we identified several likely cases through inmate interviews and
examination of inmate medical records. For example:
•	

Inmate MA was initially evaluated on August 28, 2007 for a “spider
bite” infection that continued to worsen. AB was also examined on
August 30th, September 5th, September 11th, and September 17th.
He was prescribed Keflex,24 but the condition developed into a localized
cellulitis.25 The chart does not indicate that MRSA was considered,
and no cultures were performed.

C	

Inmate MB was initially evaluated on August 15, 2007 for a “spider
bite” under his arm. He was seen again on September 11th, at which
time he was prescribed Keflex. MB was subsequently seen on multiple
occasions regarding the same “spider bite” on September 22nd,
September 28th, October 23rd, and December 19th, without resolution.
The chart does not indicate that MRSA was considered, and no
cultures were performed.

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. See MedicineNet.com,
http://www.medicinenet.com/staph_infection/page2.htm. (last visited May 21, 2009.)
24

Keflex is a cephalosporin antibiotic. It is commonly used to “treat infections
caused by bacteria, including upper respiratory infections, ear infections, skin
infections, and urinary tract infections.” See http://www.drugs.com/keflex.html
(last visited May 21, 2009.)
25

Cellulitis is a skin infection caused by bacteria that gets into the skin and
spreads to deeper tissues. See MedicineNet.com,
http://www.medicinenet.com/cellulitis/article.htm. (last visited May 21, 2009.)

- 21 C

Inmate MC was evaluated for a “boil” under his arm on
August 27, 2007, accompanied by a fever of 101 degrees Fahrenheit
and cellulitis. He was prescribed Dicloxacillin.26 The condition
continued, and MC was seen again on September 2nd, 3rd, 4th, and
11th. He required an incision and drainage by a general surgeon, and
the condition was finally resolved on September 27, 2007. MC
developed another lesion on January 11, 2008, and was prescribed
Keflex. The chart does not indicate that MRSA was considered, and no
cultures were performed.

C	

Inmate MD was initially evaluated for a possible “insect bite” on
October 21, 2007, and prescribed Keflex. By October 23rd, the
condition had worsened to a localized cellulitis. On November 15th,
MD was also treated for facial lesions. MD’s medication was switched
from Keflex to Dicloxacillin; however, on November 19th, he was given
more Keflex. The chart does not indicate that MRSA was considered,
and no cultures were performed.

C	

Inmate ME was seen for a skin infection on November 20, 2007. He
was prescribed a combination of sulfamethoxazole and trimethoprim
(antibiotics commonly used to treat bacterial infections),27 and the
infection resolved without additional intervention. The rapid response
of the infection to Bactrim, a non-penicillin antibiotic to which most
MRSA is sensitive, suggests that this infection was MRSA.

The cases described above were likely MRSA infections, but a definitive
diagnosis of MRSA cannot be made if cultures of a wound are not performed.
However, if the condition fails to adequately respond to penicillin-derivative
antibiotics (e.g., Keflex or Dicloxicillin) and appears clinically to be a typical MRSA
infection (e.g., a “spider bite” or cellulitis), MRSA can be suspected. The above cases
illustrate that the lack of reported MRSA cases at WCJ is likely due to the failure of
WCJ staff to adequately identify the condition, rather than an absence of the
infection among the prison population. WCJ’s medical staff’s failure to identify the
commonly known signs associated with MRSA, and, at a minimum, to conduct a
culture of the infection when topical treatments proved futile, demonstrates a
26

Dicloxacillin is a penicillin antibiotic. It is commonly used to treat many
infections caused by bacteria, including bronchitis, pneumonia, or staphylococcal
infections. See http://www.drugs.com/mtm/dicloxacillin.html (last visited
May 21, 2009.)
27

See http://www.medicinenet.com/sulfamethoxazole_with_trimethoprim
-_oral/article.htm (last visited Jun. 4, 2009.)

- 22 failure of the medical staff to provide adequate medical care. There is little
evidence in the health records of these inmates that WCJ medical staff considered
MRSA as an etiology for these infections. Without surveillance of MRSA by culture
or clinical suspicion, the facility is unable to monitor the effectiveness of prevention
and control measures.
In failing to adequately treat, contain, and manage MRSA, WCJ has placed
its inmates and staff and the community at unnecessary risk of serious health
problems. Indeed, in May 2008, just four months after our on-site investigation, a
MRSA outbreak was reported at WCJ, affecting two inmates and two correctional
officers.28
2.

Dental Care

Dental care is an important component of overall inmate health care. Poor
oral health has been linked to numerous systemic diseases. Generally accepted
correctional standards require that prisons provide surface restorations,
prophylaxis, and preventative care. Contrary to these standards, dental care at
WCJ is not timely and does not include immediate access for painful or urgent
conditions. Moreover, there is little documentation to indicate that WCJ inmates
receive preventive care following one year in custody.
The wait time for inmates to receive dental services at WCJ is unacceptably
long, especially for inmates complaining of pain. In the majority of records
reviewed by our consultant, inmates requesting dental care were not seen by a
dentist for four to six weeks. Among those complaining of pain, approximately onehalf received a short course of pain medication while waiting for a dental
appointment. Moreover, in the instances when an inmate actually saw a dentist,
dental treatment was deferred to outside care. In several of the medical records
reviewed, the term “follow-up outside” routinely appeared, despite chronic pain
expressed by the inmate. In one extreme case, the dentist documented the patient’s
complaint as “I am suffering from serious pain and discomfort in my mouth because
of the brackets and braces,” and responded by writing “follow-up outside.” This
response is unacceptable. In the case of this inmate, he was still in custody six
months after seeing the dentist. The inmate submitted a request to see the dentist,
stating that he was experiencing “serious pain in [his] mouth.” At that time the
dentist indicated in the inmate’s chart that the patient would be scheduled for
treatment, but four months later, this still had not occurred.

28

See Glenn Blain, Superbug Reported at Westchester Jail, The Journal News,
May 24, 2008, at 13A.

- 23 3.

Medical Grievance Process

Although WCJ has instituted a policy for submitting grievances, it is not
consistently implemented or effectively publicized. According to the Grievance
Mechanism, CHS-A-11, inmate complaints must be written on an inmate Grievance
Form and submitted to WCJ staff. During our on-site visit, however, many of the
corrections officers in WCJ’s housing units did not have Grievance Forms available
for inmates if requested. Further, when inmates and jail staff were asked where an
inmate could get a form to file a grievance, both the inmates and jail staff provided
inconsistent responses.
Because inmates have no alternative options for health care other than the
services provided them at WCJ, it is important for inmates to have access to a
medical grievance process. If an inmate perceives that his or her serious health
needs are being unmet, the grievance process provides a mechanism to investigate
the legitimacy of that concern. In order to be effective, however, a grievance policy
must made clear to prison staff and inmates. As noted above, WCJ staff and
inmates are not aware of the procedures for filing a grievance, and inmates are
unable to obtain grievance forms on their housing units. Without consistent access
to grievance forms for inmates, the medical grievance process cannot operate as
required.
C.

INADEQUATE MENTAL HEALTH CARE

WCJ fails to provide inmates with adequate mental health care that complies
with constitutional standards. While WCJ employs the services of a mental health
director to oversee the mental health services provided at the facility and operates a
certified forensic unit, deficiencies remain. In particular, deficiencies were found in
the areas of forced medication and the treatment provided juvenile inmates.
1.

Use of Force to Involuntarily Administer Medications

ERTs are routinely employed to restrain an inmate who refuses to
voluntarily submit to medication prescribed by a WCJ physician. As noted above,
each ERT is comprised of several correctional officers protected in full riot gear and
helmets. See Section III.A.1, supra. In at least 33 incidents in 2007, ERTs were
employed to physically restrain the inmates while a nurse administered the
medication involuntarily. In several of these incidents, physical force was used,
including the use of chemical agents. According to our consultant, the use of force
and the application of mechanical restrains to administer involuntary medication is
inappropriate and can be interpreted as forcing medication by intimidation. Our

- 24 consultant reviewed videos of eleven inmates who were extracted by ESU for
involuntary administration of medication, some of whom were forcibly medicated on
multiple occasions. For example:
C

Forced medication was ordered for inmate PA. An ERT was
summoned to PA’s cell at the request of medical staff and asked PA to
come forward to receive his injection. PA refused while lying on his
bed reading papers. The ERT again ordered PA to come forward,
informing him that they were authorized to use chemical agents if
necessary. Again, PA did not comply, and continued to lie down and
read. The ERT then rushed into PA’s cell, restrained him while he was
lying in his bed, and – even though PA had not been threatening,
violent, or out of control – discharged pepper spray into his face. After
the ERT had left, PA began to feel the effects of the chemical agent.
The ERT then re-entered PA’s cell and escorted him to a shower room
for decontamination. Following a shower, PA was moved into a
medication room, where he was stripped naked and injected by the
nurse while under continuous restraint. The medical record contains
no documentation of the circumstances preceding or following the
incident, and no medical assessment was conducted following the
application of force.

C	

Forced administration of medicine was ordered for inmate PB, who
was reportedly acting erratically and aggressively toward staff.
Summoned to assist in administering the medication, the ERT
physically restrained PB on the ground, placing him in a “hog-tie”
position. The ERT then lifted PB and moved him into a treatment
room. Once in the room, PB was pushed against the wall, causing him
to scrape his face. As the ERT officers tried to hoist and position him,
PB slid passively toward the floor and hit his knee, which began to
bleed. During the incident, PB cried out, “this hurts,” and “I can’t
breathe,” and moaned as he was tossed around by the team.
Eventually, PB was escorted to an area for nurses to tend to his
bleeding. The ERT officers reported that PB “gave himself some
scrapes and scratches” and that he “scraped his knee when he
assaulted the officer.” However, the video indicates otherwise. PB
appeared cooperative as the medical team provided care. Naked,
shackled, and handcuffed, PB was then escorted aggressively down the
hall, once again shouting that he was in pain. The manner in which
PB was escorted appeared in the video to be very abrupt, rough, and
painful. The medical record contains no details of the events
surrounding this use of force.

- 25 C

Inmate PC was placed into the Forensic Unit following admission to
WCJ and assessed as having psychosis with possible risk to harm
himself or others. The ERT was called by medical staff to assist with
PC’s forced medication order on two different days, and the use of OC
spray was authorized by the psychiatrist on both occasions. On the
first day, PC was resting on his bed in no distress when the ERT
approached his door and asked him to lie face down and put his hands
behind his head. After PC complied, the team rushed into his room
and roughly stretched his arms and legs into a hog-tied position. The
nurse administered the injection and departed. The team slowly
released PC, and although he shouted in some pain, they left the room.
The medical record did not comment on this event. The next day, the
team was again asked to assist with administering medication. PC,
who was sitting calmly on his bed, laid down as requested by ERT and
put his hands behind his head. When the team entered the room, PC
began to move, and the team aggressively wrestled him to the floor,
where he was put into the hog-tie position and pulled across the floor
by his legs. As PC was being pulled across the floor, his shirt pulled up
and his bare abdomen scraped across the floor. PC was then hoisted
by his legs and arms behind his back on the bed, and his legs and arms
were tightly compressed so he could not move. The nurse then entered
the room to administer injections to his buttocks. Although PC
occasionally screamed of pain, and at one point uttered, “I can’t
breathe,” the nurse did not react, and did not evaluate or discuss the
tight position of the restraints by the ERT. The medical record does
not include an assessment before or after the use of force.

C	

Inmate PD was in the Forensic Unit refusing to answer questions or
cooperate with medical examinations. Almost two weeks after being in
WCJ, the medical team authorized the use of force by the ERT so that
PD would have a chest X-ray in order to screen for tuberculosis. A
single note, written after the X-ray was taken, explained that an
attempt was made to persuade PD to have the chest X-ray, but that he
calmly declined. No prior notes documented any attempt to screen the
patient for tuberculosis. The ERT ordered PD to lie face down on the
bed, and he complied. PD was put into full mechanical restraints,
shuffled down the hallway to the X-ray room, and underwent an X-ray.

The use of force and application of mechanical restraints in the above
incidents were excessive and disproportionate to the threats presented. If
therapeutic intervention was the reason for ordering that these inmates be
involuntarily medicated, the manner of delivery was the antithesis of therapy and
caused harm. Even in incidents where the ERT does not use force to restrain the

- 26 inmate, the process can still be interpreted as forcing medication by intimidation.
There are more appropriate and less violent methods to administer involuntary
medication to patients who need intervention, such as providing intensive
counseling to inmates concerning the need for such medication. There is little
evidence in the medical records that WCJ staff attempted such counseling prior to
calling in ERT.
Moreover, the number of incidents where ERT is employed to assist with
involuntary medications is high. The actual use of force, including the use of
chemical agents, is aggressive and not therapeutic. Based on the videotapes
reviewed by our consultant, none of the inmates discussed above presented an
immediate or serious risk to themselves or others. In the case of PA, for example,
there was no display of aggressive or threatening behavior by the inmate to justify
the deployment of pepper spray. Similarly, in the case of PB, there was no display
of aggressive or threatening behavior to justify the rough treatment.
In addition, WCJ staff have failed to adequately document occasions in which
medication is forcibly administered. In every instance in which force is used to
administer medication to an inmate, the medical record should clearly indicate the
medical justification for involuntary medication, as well as the circumstances
necessitating the use of force. Jail staff should also include a thorough assessment
and documentation of the inmate’s condition following the forced medication in the
inmate’s medical record, including incidents where only intimidation is used, to
ensure that any injuries sustained during the involuntary administration are
properly treated. Moreover, a thorough assessment and documentation of the
inmate’s condition will alert staff as to whether the medication has the desired
effect on the inmate or whether there are any adverse side effects. In the above
cases, involuntary medication was ordered, but our consultant was unable to
determine the basis of these orders from a review of the incident notes, medical
records or the videotape. In addition, as also noted above, the medical record did
not appropriately document the inmate’s condition or the circumstances
surrounding the use of force.
2.

Confinement Rounds

WCJ’s Special Housing Unit (“SHU”) is the disciplinary segregation unit for
male inmates. Inmates housed in the SHU are isolated in individual cells with
self-contained toileting and showering facilities. Because the cells are
self-contained, the inmate is rarely brought out of his cell. Each inmate has access
to a recreation area and is permitted one hour of recreation time, to be served alone.
Our consultant found that while inmates housed in confinement areas received
previously arranged or established mental health treatment, most inmates do not
receive routine mental health evaluations.

- 27 Inmates confined in isolation or segregation have an increased risk of mental
health deterioration. Generally accepted correctional practices suggest that regular
psychological assessments by a qualified mental health professional are necessary
to ensure the mental health of an inmate confined in such units beyond 30 days.29
Many of the inmates are confined in the SHU for well over 30 days. Accordingly,
qualified mental health professionals should make segregation rounds at least once
a week to identify those inmates at risk of experiencing psychological deterioration.
Although WCJ medical staff conducts and documents daily rounds in the SHU, this
does not constitute an appropriate mental health assessment.
D.

JUVENILES

WCJ houses both juveniles awaiting processing to determine transfer to a
juvenile detention facility and juveniles adjudicated as adults. Under New York
State law, minors as young as thirteen years old may be tried and convicted as
adults.30 Despite this legal categorization, minors who are adjudicated as adults are
still developmentally, physically, and mentally adolescents. WCJ’s treatment of
juveniles raises serious constitutional concerns regarding the length of disciplinary
sentences and the adequacy of the mental health care and suicide prevention for
juveniles housed in the SHU. We are also concerned with the Jail’s failure to
adequately separate juveniles from adult inmates by sight and sound, in
contradiction to generally accepted correctional standards, and the Jail’s failure to
seek parental consent for the administration of psychotropic medication.
1.

Juveniles in the SHU
a.

Length of Disciplinary Sentences

Based on our consultant’s review of the inmate logs at the SHU, since
December 2007, half of the admissions to the SHU were inmates ranging in age
between 16 and 18 years old. A review of the disciplinary records for the five of the
six minors in SHU on December 31, 2007, reveal that the average sanction imposed
was in excess of 365 days, with the longest period of isolation, at the time of our
on-site investigation, recorded at 510 days. One 16-year-old minor was given a
sanction of 360 days for refusing to lock-in from the dayroom and allegedly taking a
swing at an officer. While we acknowledge the seriousness of the disciplinary
infraction, a one-year term of isolation/seclusion for a minor is an extremely severe
sanction, especially when contrasted with an adult detainee in the SHU who was
29

Standards for Adult Correctional Institutions, 4th Edition, 4-4255.

30

New York Penal L. § 1.20(42) (2008); New York Crim. Proc. L. § 720.10(1)-(2).

- 28 given a 45-day sanction for assaulting another inmate. Just two months prior, this
same adult inmate had assaulted and injured another inmate with a weapon.
Another 16-year-old minor was given 510 days for assaulting a correctional officer.
When he completes his SHU term for this disciplinary sanction he will be one
month short of his 18th birthday. We also note that an 18-year-old was given an
indefinite sentence in the SHU.
The severity of these sentences imposed on a juvenile population raises
numerous constitutional issues. The length of these sentences create an “atypical
and significant hardship,” requiring the application of due process in disciplinary
proceedings. Sandin v. Conner, 515 U.S. 472, 484 (1995); Colon v. Howard,
215 F.3d 227 (2d Cir. 2000) (finding 305 days “atypical”). While sentences of this
length may not pose disproportionality problems in an adult population,31 our
consultants expressed serious concern about the imposition of such lengthy
sentences on a juvenile population. Further, such sentences may inflict substantial
psychological harm on such a population, particularly where, as detailed below in
Section III.D.1.a, adequate controls are not in place to identify and remedy such
harm.
b.

Mental Health and Suicide Prevention

At WCJ, the excessive SHU sentences given to juveniles have contributed to
the deteriorating mental health of those juveniles, as illustrated by the following
examples. This is especially true given the lack of routine mental health care for
SHU inmates. See Section III.C.2, supra. Inmates housed in the SHU do not
receive routine mental health evaluations, unless previously arranged prior to
admittance in the SHU. As a result, deterioration of mental health is either
unnoticed or ignored. For example:
C	

31

Inmate SA is 16 years old. He was placed in the SHU on July 5, 2007,
only five days after he entered the facility. SA received a sentence of
510 days in isolated confinement as a result of an altercation that
caused injury to a correctional officer, which again took place within
the first few days of his incarceration. After two months of being in

See, e.g., Dixon v. Goord, 224 F. Supp. 2d 739, 748 (S.D.N.Y. 2002) (inmate’s
punishment of ten months in SHU after being found guilty of assaulting a prison
officer was “penologically justified and not grossly disproportionate”) (citing
Sostre v. McGinnis, 442 F.2d 178, 190-94, & n.28 (2d Cir. 1971) (serious offenses
can justify lengthy disciplinary detention).

- 29 the SHU, SA attempted to cut his wrists, although this did not result
in a major injury. A mental health evaluation was performed and
concluded that he had “poor impulse control.”
C

Inmate SB is 18 years old. At the time of our visit, SB was serving 240
days in the SHU. He was first admitted to the SHU for 30 days in
2007, and then readmitted on August 1, 2007, for 240 days. When SB
first entered WCJ he had a negative psychiatric screen except for a
history of Attention Deficit Hyperactivity Disorder, and it was
determined at that time that no additional mental health intervention
was required. However, twelve days after being admitted to the SHU
for the second time, SB began to exhibit suicidal ideation. On August
12th, SB made a suicidal gesture of hanging, followed by a razor blade
threat to harm himself on August 26th. SB’s behavior was identified
by mental health staff as “poor impulse control.” SB has continued to
be a behavioral and management challenge for the officers in the SHU.

WCJ lacks a process of identifying and recognizing special mental health
needs for its juvenile population. There is little evidence to suggest that WCJ
employs any special accommodation or therapeutic approach that recognizes the
special needs of adolescents or juveniles regarding their behavior and development.
For example:

32

C	

Inmate SB, described above, has not been frequently followed by
mental health staff. In November 2007, SB was placed on Risperdal,32
an antipsychotic medication. A few weeks later, the medication was
discontinued due to his non-compliance. A mental health treatment
plan, drafted on November 27, 2007, indicated that a follow-up
meeting was scheduled for February 27, 2008. There were no interval
evaluations or mental health interventions. During this time, SB’s
behavior continued to deteriorate.

C	

Inmate SC is 18 years old. He was observed in a suicide prevention
cell in the booking area. SC was brought into the suicide prevention
cell from the general population juvenile housing area. He indicated
that he was having trouble coping in the area with the other juveniles,
although he was not specific as to why he was having trouble coping,
and had several superficial self-inflicted abrasions. This was his third
admission to the suicide prevention cell within a week. Each time he

Risperdal is commonly used to “treat schizophrenia and symptoms of bipolar
disorder.” See http://www.drugs.com/risperdal.html. (last visited May 21, 2009).

- 30 was observed in the suicide cell, mental health staff determined that
SC no longer posed a suicide risk, and he was subsequently returned to
the general juvenile area.
As these examples illustrate, WCJ is not providing adequate mental health
treatment and suicide prevention for juveniles in its facility. The number of
juveniles in the SHU, and the level of problems caused by those juveniles, are
disproportionate to the number of juveniles housed at WCJ.
2.	

Sight and Sound Separation

Generally accepted correctional standards require the sight and sound
separation of juveniles from adults. WCJ does not appropriately apply sight and
sound separation when it comes to the separation of juveniles and adults. On one
floor at WCJ dedicated to female inmates, female juveniles were housed in the back
corner of a housing unit for adult females. Within this unit, the adult and juvenile
females were separated by a metal mesh fence that did not prevent open
visualization and communication. In addition, male juveniles confined to the SHU
were within sound, and often sight, of adult males in the SHU. Separation of
juvenile populations from adults is a requirement of correctional standards. The
potential for harassment and verbal victimization, if not more, is possible if adult
prisoners are not separated by sight and sound.
3.	

Consent to Treatment

Generally accepted correctional standards require that the consent of a
parent, guardian, or legal custodian, be obtained in order to prescribe medications
for chronic or mental health conditions for inmates under the age of 18. Our
consultant, however, found that WCJ did not consistently maintain a consent form
signed by a parent or guardian for each juvenile inmate. For example:
•	

Inmate VA is 16 years old. She was placed on psychotropic
medications. No consent was found in her medical records.

•	

Inmate VB is also 16 years old. She was placed on psychotropic
medications. While her medical records reflect a telephone discussion
with a parent regarding her treatment, no formal consent form could
be found.

•	

Inmate VC is also 16 years old. She was placed on psychotropic
medications. However, unlike inmates VA and VB, inmate VC had an
informed consent form signed by a parent consenting to treatment.

- 31 Persons under the age of 18 years require consent of a parent or guardian
prior to the delivery of most health care services. This consent is not consistently
being obtained at WCJ.
IV. 	REMEDIAL MEASURES
In order to address the constitutional deficiencies identified above and
protect the constitutional rights of detainees, the Jail should implement, at a
minimum, the following measures in accordance with generally accepted
professional standards of correctional practice:
A.	

Protection from Harm
1.	

Use of Force
a.	

Develop and maintain comprehensive policies and
procedures, consistent with current legal standards,
regarding permissible use of force. Such policies and
procedures should specifically include, inter alia, the
following:
(i)	

Definitions of force and excessive or unnecessary
force.

(ii)	 Prohibition on the use of force as a response to
verbal insults or inmate threats.
(iii) Prohibition on the use of force as a response to
inmates’ failure to follow instructions where there
is no immediate threat to the safety of the
institution, inmates, or staff, unless WCJ has
attempted a hierarchy of nonphysical alternatives
which are documented.
(iv) Prohibition on the use of force as punishment.
(v) 	 Prohibition on the use of crowd control chemical
agents on individual inmates and develop and
maintain a policy and practice for the appropriate
use of chemical agents.

- 32 b.

Establish effective oversight of the use of force.
(i)	

Develop and implement a policy to ensure that staff
adequately and promptly report all uses of force.
Such policies and procedures should include, inter
alia, provisions for the following:
(A)	

Development and implementation of a
standardized use of force reporting
form.

(B)	

Ensuring that all staff receive training
in how to complete a use of force
reporting form and to properly
describe a use of force incident on such
a form.

(C)	

Ensuring that all staff involved in or
witnessing any use of force incident
adequately and promptly report such
use of force.

(ii)	 Develop and implement a policy and practice for
management review of all use of force incidents.
(iii) Ensure that review of incident reports, use of force
reports, videotapes recording use of force incidents,
and inmate grievances involving or alleging use of
force by ERT is performed by management without
direct supervisory authority over ERT members or
supervisors.
(iv) Ensure that incident reports, use of force reports,
videotapes recording use of force incidents, and
inmate grievances are screened for allegations of
staff misconduct and, if the incident or allegation
meets established criteria for misconduct, that it is
referred for investigation.
(v)	 Ensure that management review of incident
reports, use of force reports, videotapes recording
use of force incidents, and inmate grievances
alleging excessive or inappropriate uses of force

- 33 includes a timely review of medical records of
inmate injuries as reported by medical
professionals.
(vi) Develop and implement comprehensive policies,
procedures, and practices for the timely and
thorough investigation of alleged staff misconduct.
(vii) Develop and implement policies, procedures, and
practices on the proper use of videotapes for
recording of use of force incidents and storage and
retention of such videotapes.
(viii)Develop and implement policies, procedures and
practices for the effective and accurate
maintenance, inventory and assignment of
chemical and other security equipment.
(ix) Develop and implement a process to track all
incidents of use of force that at a minimum
includes the following information: the inmate(s)
name, housing assignment, date and type of
incident, injuries (if applicable), if medical care is
provided, primary and secondary staff directly
involved, reviewing supervisor, external reviews
and results (if applicable), remedy taken (if
appropriate), and administrative sign-off.
c.	

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

Ensure that staff receive adequate
competency-based training in WCJ’s use of force
policies and procedures.

(ii) 	 Ensure that staff receive adequate competencybased training in use of force and defensive tactics.
(iii) Ensure that management and staff involved in use
of force investigations receive adequate
competency-based training in conducting
investigations of use of force allegations.

- 34 2.

Safety and Supervision
a.	

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

b.	

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

c.	

Ensure frequent and documented security rounds timed
at varying intervals by correctional officers inside each
housing unit.

d.	

Develop and implement policies and procedures
requiring all tools, utensils, equipment, flammable
materials, etc. to be inventoried and locked down when
not being used.

e.	

Ensure that staff adequately and promptly report
safety- or security-related incidents.

f.	

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.

g.	

Ensure that inmates placed in lock down status are
provided with appropriate due process that has been
developed and implemented in policies and procedures.

h.	

Increase use of overhead recording security cameras
throughout the common areas of the facility and ensure
that the use of cameras are to supplement and not
replace supervision.

i.	

Review, and revise as applicable, all security policies
and SOPs on an annual basis.

j.	

Review, and revise as applicable, all security post orders
regularly.

- 35 -

3.

k.	

Revise policies, SOPs, and post orders for all staffed
posts to include instruction on use of deadly force and
when and under what circumstances weapons should be
used.

l.	

To the extent possible, taking into account the different
security levels and different physical layouts in the
various divisions, standardize security policies,
procedures, staffing reports, and post analysis reports
across the divisions.

m.	

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

n.	

Implement specialized training for officers assigned to
special management units, which include the SHU,
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 purposes.

Disciplinary Process
a.	

Ensure that inmates are afforded due process for any
disciplinary actions against them, including promptly
receiving a disciplinary ticket, a written decision
detailing the reasons for the decision and length of
sentence, and a fair hearing.

b.	

Ensure that disciplinary hearings are conducted in a
private setting.

c.	

Develop and implement a policy, procedure and practice
to review sentences committing inmates to the SHU for
longer than 30 days.

d.	

Develop and implement a policy, procedure and practice
to ensure that juvenile offenders are not incarcerated in
the SHU in a manner or at such length inconsistent
with their age and developmental needs.

- 36 4.

5.

6.

Classification
a.	

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

b.	

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

Inmate Grievance Procedure
a.	

Develop and implement policies, procedures, and
practices to ensure inmates have access to an adequate
grievance process that ensures 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.

b.	

Ensure that grievance forms are available on all units
and are available to inmates with Limited English
Proficiency.

c.	

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

Access to Information
a.	

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

b.	

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

- 37 c.	
7.

B.

Ensure that information on facility rules and services is
available in Spanish.

Employee Discipline
a.	

Ensure Employee Code of Conduct includes prohibition
on use of excessive or unnecessary force.

b.	

Update Standard Operating Procedure on Use of Force
to include definition of excessive or unnecessary force
and appropriate sanctions for use of such force.

Medical Care
1.

2.

Intake Screening
a.	

Ensure that adequate intake screening and health
assessments are provided.

b.	

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.

Treatment and Management of Communicable Disease
a.

Provide adequate treatment and management of
communicable diseases, including MRSA.

b.	

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

c.	

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

d.	

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,

- 38 including drug-resistant infections to staff and other
inmates.
e.	
3.

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

Dental Care
a.	

Ensure that inmates receive adequate dental care in
accordance with generally accepted professional
standards of care. Such care should be provided in a
timely manner.
b.	

4.

5.

Access to Health Care
a.	

Ensure inmates have adequate access to health care.

b.	

Ensure that the medical request process for inmates is
adequate and provides inmates with adequate access to
medical care. This process should include logging,
tracking, and timely responses by medical staff.

Medication Administration
a.	

C.

Ensure that inmates complaining of pain are
provided with interim pain relief until they can be
seen for dental appointments.

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

Mental Health Care
1.

Timely and Appropriately Evaluate Inmates
a.	

2.

Ensure WCJ properly identifies inmates with mental
illness through adequate screening.

Assessment and Treatment
a.	

Ensure that treatment plans adequately address
inmates’ serious mental health needs and that the plans

- 39 contain interventions specifically tailored to the inmates’
diagnoses and problems.
b.	

3.

4.

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

Psychotherapeutic Medication Administration
a.	

Ensure that ERTs are not used to administer involuntary
medication unless the inmate is clearly uncontrolled and
presenting an immediate risk to him/herself or others.

b.	

Ensure that, after each use of force employed in
connection with involuntary administration of medicine,
the medical record clearly documents the reasons for
administering medication involuntarily, the use of force
employed to administer medication, and the inmate’s
condition following the use of force.

Other Mental Health Issues
a.	

Ensure that a psychiatrist or physician conducts 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 release.

b.	

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

c.	

Ensure that all inmates housed in isolated confinement
areas, such as the SHU, receive weekly mental health
screenings conducted by qualified mental health
professionals.

- 40 d.	

D.

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 control.

Juveniles
1.

2.

3.

Isolation Confinement
a.	

Develop alternative disciplinary actions for juveniles
violating institutional rules that result in appropriate
time in isolation confinement.

b.	

Ensure that health care staff are involved in developing
and implementing treatment plans for juveniles facing
isolation confinement.

c.	

Ensure that juveniles held in the SHU have access to
programs appropriate for juveniles.

Mental Health Care
a.	

Provide greater interaction with Jail Staff and more
rehabilitative programming for juveniles, including those
who have committed disciplinary infractions.

b.	

Ensure that juvenile inmates undergo mental health
evaluations that address the special developmental
needs of adolescents.

c.	

Ensure that juvenile inmates undergo mental health
evaluations at regular intervals even if they are not
receiving psychotropic medications.

Other Issues
a.	

Ensure that all juvenile inmates are provided housing
that maintains sight and sound separation from adult
inmates.

b.	

Establish a process for routinely obtaining signed
consent forms from the parent or guardian of any
juvenile receiving prescribed medications or health care

- 41 treatments unless otherwise permitted by state or local
laws.
***
Please note that this findings letter is a public document. It will be posted on
the Civil Rights Division’s website. While we will provide a copy of this letter to any
individual or entity upon request, as a matter of courtesy, we will not post this letter
on the Civil Rights Division’s website until ten calendar days from the date of this
letter.
We hope to continue working with the County in an amicable and cooperative
fashion to resolve our outstanding concerns regarding WCJ, and to develop specific
policies and procedures that will implement the remedial measures discussed above.
Assuming the County continues to cooperate, we also would be willing to send our
consultants’ evaluations under separate cover. These reports are not public
documents. Although the consultants’ evaluations and work do not necessarily
reflect the official conclusions of the Department of Justice, their observations,
analysis, and recommendations provide further elaboration on the issues discussed
in this letter and offer practical technical assistance in addressing them.
We are obligated to advise you that, in the event that we are unable to reach a
resolution regarding our concerns, the Attorney General may initiate a lawsuit
pursuant to CRIPA to correct deficiencies of the kind identified in this letter 49 days
after appropriate officials have been notified of them. See 42 U.S.C. § 1997b(a)(1).
We would prefer, however, to resolve this matter by working cooperatively
with you and are confident that we will be able to do so in this case. The lawyers
assigned to this investigation will be contacting you 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, or David Kennedy, of the United States Attorney’s Office, at
(212) 637-2733.
Sincerely,

Thomas E. Perez
Assistant Attorney General

- 42 PREET BHARARA
UNITED STATES ATTORNEY
FOR THE SOUTHERN DISTRICT
OF NEW YORK
___________________
Shanetta Y. Cutlar
Chief
Special Litigation Section

___________________

Tammie M. Gregg

Principal Deputy Chief

Sheridan England

Zazy I. López

Trial Attorneys

cc:	

Joseph K. Spano
Commissioner of Correction
County of Westchester

cc:	

Charlene M. Indelicato
County Attorney
Office of the County Attorney

By:____________________
David J. Kennedy
Chief
Civil Rights Unit

___________________
Rebecca C. Martin
Kristin L. Vassallo
Assistant United States Attorneys