The criminal justice system in New Mexico is responsible for protecting its citizens. Even those who have been charged with a crime and who may be serving time in a jail or prison. The physical safety and civil rights of each citizen must be upheld in every interaction with the law regardless of what a person has done.
At Collins & Collins, PC, we fight relentlessly to make sure the justice system of New Mexico fulfills its duties to its citizens.
§1983 and Title VII of the Civil Rights Act
Civil rights law is critically important to the protection of the rights and freedoms of individuals. Title VII governs the conduct of employers while §1983 governs the conduct of jails, prisons and police along with all the private contractors along the way. Title VII and §1983 are remarkably intertwined for good and for bad.
Not only are Title VII and §1983 closely related, the two overlap, integrate and many times dictate the progress of many different areas of law. Moreover, most every important civil rights case coming out of the courts will send ripples throughout the legal system.
Even one case involving one individual’s civil and constitutional rights can send shockwaves that go far beyond that case. The waves can affect the rights of many different groups along with the individuals within them, conservative and liberal, men and women, ethnic, nationality, religious and political.
The denial of the civil rights of one puts at risk the civil rights of all. It is not always easy for folks to draw the connections. Drawing connections inevitably falls on those seeking to protect those rights such as activists and the media. In the end, however, real and lasting progress comes only from hard work in the courts one case at a time.
As 2016 has taught us, the work is far from over. Much of the progress we all took for granted was illusory. What 2016 also taught us is that the work is never done. It is a slow and grueling slog through the swamps of racism, sexism, misogamy, xenophobia … long driven by fear and hate. 2016 was a wake-up call to us all that the time is now for action to preserve and advance the progress of civil rights made inch by inch over the life of our nation.
Jails, Prisons and Police Misconduct in New Mexico
Violations of one‘s civil rights can be among the greatest harms suffered by an individual. Often the person feels helpless in the face of oppressive and illegal governmental behavior.
Though violations of civil rights come up in many contexts, the most common, and the areas in which Collins & Collins, P.C. focuses involve police misconduct and correctional (jail/prison) abuse and neglect.
There are protections against civil rights abuses under both Federal and New Mexico Laws. The federal claims are most often brought under Section 1983 of the Civil Rights Act of 1964 which forbids the government or anyone acting on behalf of the government from denying or negatively impacting your civil rights. New Mexico has its own Civil Rights Act which provides additional protections to its citizens.
Violation of these Civil Rights Acts may be grounds for a lawsuit. These claims will often involve physical injuries and proceed in a manner similar to any other personal injury lawsuit. In fact, there is a fair amount of overlap between the two areas. However, there are a number of requirements and peculiarities of civil rights claims that are not present with the typical personal injury claim.
New Mexico Governmental Activity Required
When considering one of these lawsuits the first question to ask is: was the person who caused harm acting in a governmental capacity.
This does not necessarily mean the individual had to be working directly for the government or that the entity for which the person worked is a governmental entity.
The individual and/or entity could have been acting on behalf of or in place the government? The most common of these are private corrections companies and other private contractors to jails and prisons.
Most prominent among these other private contractors and the areas prone to the greatest level of abuse and neglect is the private contracting of medical care.
Our Albuquerque Civil Rights Attorneys Explain, What is a “State Actor”?
In the civil rights arena, the government and anyone acting on behalf of the government is often referred to as a “state actor.” This includes people in roles such as:
- Prison guards
- Police officers
- Other elected officials
In addition, political subdivisions of a state (counties, cities, townships, etc.) are forbidden under Section 1983 from violating your civil rights.
Sometimes private citizens can be considered state actors in circumstances where they are either acting with the government’s blessing or even where they only appear to be acting with the government’s blessing.
Required Injuries and Causation for Albuquerque Civil Rights Violation Claims
Only certain types of injuries fall under the umbrella of civil rights violations. There are many different ways that a state actor may violate a person’s civil rights. One of the most common is through physical injury or wrongful death.
Some cases are more straightforward than others such as where it is clear that a state actor caused harm. At other times it is less clear as to whether the state actor has caused the harm. Once it is shown that there was governmental action, it must be shown that the harm arose out of the governmental action.
Protections for Governmental Actors in New Mexico
Once it is clear that there was state action and harm arising from wrongful conduct of the state actors, there are many protections in place for governmental actions. The two most common are qualified immunity and shorter statute of limitations.
Qualified immunity means that many governmental actors are protected against lawsuits unless very specific and sometimes significant requirements can be met. The statute of limitations on claims against the government are only 2 years. In addition, in New Mexico, if there are state tort law claims in addition to the civil rights claims, the first deadline for a Notice of Tort Claim runs in only 90 days.
Police Misconduct and How Civil Rights Attorneys Can Protect You
Police misconduct cases are unfortunately more commonplace than might be expected. Some of these instances of police misconduct may give rise to a civil rights lawsuit. The behavior may also result in claims under both the Federal tort Claims Act and the New Mexico Tort Claims Act.
It is important to pursue these claims as quickly as possible. Though the statute of limitations on civil rights actions is 3 years, other related tort claims will have only a 2 year statute of limitations. Moreover, claims under the New Mexico Tort Claims Act has a notice deadline that runs in as little as 90 days.
Read More on Claims, Deadlines and Other Issues on Claims Against the Government:
- New Mexico Tort Claims Act
- Deadlines and Other Requirements Under the Federal Tort Claims Act
While most people think about the use of excessive or deadly force when police misconduct is mentioned, it can also refer to many other inappropriate police actions including high speed pursuits and the use of restraints among other police actions.
Albuquerque Civil Rights Lawyers Analyze Search & Seizure Under the 4th Amendment
Police misconduct cases typically involve police conduct during an arrest. As such, the claims are usually analyzed under the Fourth Amendment to the United States Constitution. In short, the 4th Amendment forbids unreasonable searches and seizures and an arrest constitutes such a seizure.
In order to prevail in a claim for a violation of your Fourth Amendment rights, including a claim that the police used excessive force during an arrest, you must prove that the officer seized you and that the seizure was unreasonable. The requirement that it be unreasonable does not mean it must be illegal. In fact, many legal arrests are carried out in an unreasonable manner.
The Reasonableness Standard
On the other hand, the law provides the police with some lee-way when making an arrest, with a determination that arrests necessarily carry some right to use physical coercion or threat of physical force. The reasonableness of the force used by a police officer during an arrest will depend on the specific circumstances of each incident.
In addition, the courts will review the reasonableness of the force used from the eyes of the arresting officer, rather than with the full understanding that hindsight provides. Though the courts will look at the arrest through the eyes of the officer, this does not mean that good intentions will negate obviously unreasonable behavior. The behavior is judged on an objective basis under the circumstances and neither good nor bad intentions will necessarily change the evaluation of the conduct.
Excessive Force and Your Civil Rights
In making that evaluation, it is important to remember that a police officer is permitted to use only the amount of force required to bring a suspect under control. In other words, once the suspect is restrained, the police officer is no longer permitted to use force. For example, it may be reasonable for a police officer to use a baton to subdue a suspect in order to handcuff or subdue him. But the officer may not then continue using the baton after the suspect has been handcuffed or otherwise subdued. We all learned this among other lessons from the Rodney King case.
The improper use of restraints is another type of police misconduct that has been the subject of recent lawsuits. Though rare, a number of deaths have occurred as a result of positional or restraint asphyxia, when the position of the body results in suffocation. In some cases, suspects in the prone position or those under the body weight of officers were suffocated as a result of being in handcuffs. More common are serious injuries suffered from the improper, either intentional or unintentional, use of restraints.
Police Pursuits in Civil Rights Violation Claims
Police pursuits, particularly those at high speeds, can also present significant violations of the suspect’s Fourth Amendment rights. In the event that the fleeing suspect loses control of the vehicle of his or her own accord, without interference by the police, then it is unlikely that a court will find that a seizure occurred.
However, where the police take action that forces the suspect’s car to crash, like running the car off the road or using a roadblock, then the conduct will again be judged by reasonableness under the circumstances.
Though these cases can come up on occasion when a police chase is clearly unreasonable and the suspect is harmed, the much more common claim involves injuries or the wrongful death of other innocent drivers or bystanders who are harmed by a reckless police chase. Claims by innocent drivers or bystanders will come under New Mexico Tort Claims Act.
One of the biggest challenges in claims against counties under the Tort Claims Act has always been the venue requirements. The venue requirements have forced plaintiffs in personal injury and wrongful death claims against counties to file their lawsuits in the county itself. This has too often resulted in home-town justice.
Fortunately, this often harsh venue requirement is absent from the New Mexico Civil Rights Act.
New Mexico Tort Claims Act Venue Requirement
It should be noted that there are different venue requirements for lawsuits against the State of New Mexico and its agencies, and the venue requirements for claims against a county. Venue for lawsuits against the State of New Mexico is always proper in Santa Fe. However, for lawsuits against New Mexico counties, the suits must be brought in the county itself as stated by N.M. Stat. Ann. § 41-4-18:
“Venue for all other claims pursuant to the Tort Claims Act, shall be in the county in which the principal offices of the governing body of the local public body are located.”
As one might imagine, and for good reason, filing suit against a county in the county itself can and does result in what some might call home-town advantage to the county. The problem is particularly problematic in some of the counties that border Texas which seem at times to have adopted Texas style justice which is not at all friendly to personal injury and wrongful death victims or their families. These courts can be particularly unfair to victims of police and jail abuse.
Venue Under the New Mexico Civil Rights Act
There is no such home-town advantage for counties under the New Mexico Civil Rights Act. Under House Bill 4 (not yet been codified into a New Mexico statute), the venue for a civil rights lawsuit under the New Mexico Civil Rights Act (H.B. 4) against any public entity is proper in any New Mexico District Court:
- A person who claims to have suffered a deprivation of any rights, privileges or immunities pursuant to the bill of rights of the constitution of New Mexico due to acts or omissions of a public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body may maintain an action to establish liability and recover actual damages and equitable or injunctive relief in any New Mexico district court.
NM LEGIS 119 (2021), 2021 New Mexico Laws Ch. 119 (H.B. 4)
The language in H.B. 4, Paragraph B means that these cases can be brought anywhere in the State. Plaintiffs need no longer subject themselves to Texas style justice on the Texas border or anywhere else.
Unanswered Liability Caps Questions Regarding Venue
One interesting as of yet unanswered question regarding venue is the question of liability caps on these cases. Liability caps set a limit on the amount that a personal injury or wrongful death victim can obtain through court. Under the Tort Claims Act, the cap is $700,000 for personal injury claims but only $400,000 for wrongful death claims. This is due to the allowance of up to $300,000 past and future medical expenses that may not be present in a wrongful death lawsuit. Either way, the Tort Claims Act cap on liability for governmental entities is obscenely low.
The New Mexico Civil Rights Act raised the cap to $2 million per occurrence. In addition, the $2 million is not exclusive of other remedies or damages. In other words, a person injured by a governmental entity for civil rights abuses such as a police misconduct or jail misconduct can still seek the full cap under the Tort Claims Act above and beyond the $2 million caps under the Civil Rights Act.
The question that has yet to be answered is whether a plaintiff will be forced to file the Tort Claims separately in the subject county or whether the plaintiff will be able to file both the civil rights claims and tort claims in a county where home-court biases of local jurors and judges can be avoided and justice for the victim is possible.
Risks Associated with Filing Suit in Unfavorable Venues
Like the federal courts, police and jail misconduct lawsuits are viewed with disfavor in some counties. There is a very real risk of getting home-towned in some counties if civil rights lawsuits under the New Mexico Civil Rights Act are filed there. It would be perhaps unwise to do so when an alternative more favorable venue is available. This is particularly so given the $2 million caps under the Civil Rights Act. The $400,000 cap on wrongful death claims under the Tort Claims Act would make it exceedingly unwise to proceed in a county unfriendly to victims of police or jail abuse unless this was the only possible venue. Fortunately, this is no longer the case. Filing in a court more prone to do justice in these cases is now allowed and will soon become the norm.
It is a new day in New Mexico for civil rights claims for victims of governmental abuse, including those perpetrated by county jails and local police.
House Bill 4, the New Mexico Civil Rights Act, was signed into law last week on April 7, 2021. The importance of its passage to the rights of New Mexico prison and jail inmates cannot be overstated. The Act does not go into effect until July 1, 2021. After July 1, it is a whole new ball game for prison and jail inmate medical malpractice lawsuits.
There will be a series of articles following this initial summary to address each individual section and how it will benefit the rights of New Mexico inmates and their families. The article below will provide a quick overview of the most important provisions of the Act so that inmates and their loved ones will know that help is on the way.
The Civil Rights Act Applies to Medical Negligence Occurring After July 1, 2021
The Civil Rights Act applies only to actions or inactions in violation of inmate civil rights occurring after July 1, 2021. This is perhaps the most disappointing provision. Collins & Collins, P.C. is evaluating many cases of extreme medical neglect by New Mexico Corrections Department and its contractors. Unfortunately, none of those cases will benefit from the Civil Rights Act.
On the other hand, it is highly doubtful that either NMCD or its medical contractors are capable of improving medical care in NMCD facilities. Nor is NMCD inclined to improve medical care in its facilities even were it capable. The incompetence, cruelty and callousness of NMCD medical care has no bounds. Sadly, it is fully expected that the same extreme medical neglect will continue until NMCD is overhauled at the top which brings us to the last important and disappointing provisions of the Civil Rights Act.
Definition of Public Body
The New Mexico Civil Rights Act allows claims against “public bodies”. “Public Body” is defined very much like the definition of public body in the New Mexico Tort Claims Act. Under the Civil Rights Act, public body is defined as:
“state or local government, an advisory board, a commission, an agency or an entity created by the constitution of New Mexico or any branch of government that receives public funding, including political Subdivisions,…”
What this means to New Mexico inmates is that the Civil Rights Act applies to all New Mexico prisons and jails.
New Civil Rights Claims Under New Mexico Constitution
Many would be surprised to learn that until passage of the Civil Rights Act, there was no possibility for a New Mexico inmate to bring civil rights claims under the New Mexico Constitution. This was the case despite the fact that the New Mexico constitution, like the United States Constitution, provides for a basic bill of rights.
For purposes of inmate medical malpractice claims against prisons, jails and their medical contractors, the New Mexico Bill of Rights provides rights against cruel and unusual punishment (Article 13) and due process rights (Article 18). Prior to passage of the New Mexico Civil Rights Act, Articles 13 and 18 were mere words. There was no possibility of enforcing those rights in New Mexico Courts.
Instead, New Mexico inmates suffering extreme medical neglect, were forced to federal court to pursue constitutional claims. Inmate medical neglect claims no matter how extreme face virtually certain dismissal in federal courts due to the impossible burden of overcoming qualified immunity. After July 1, 2021, the New Mexico Constitution will finally have meaning for New Mexico inmates.
Ban on Qualified Immunity
Qualified immunity is the greatest abomination in the courts and is largely responsible for the horrendous violations of civil rights that we all routinely see on the nightly news. An end to qualified immunity is perhaps the most important aspect of the New Mexico Civil Rights Act. As mentioned, inmates suffering what may aptly be referred to as medical torture, have never had constitutional rights in state courts. Inmates were forced to federal court where qualified immunity would completely shut down their lawsuits no matter how horrible the medical neglect.
Qualified immunity has literally been a license to kill for prisons, jails, their employees, staff and contractors. This has allowed the daily atrocities committed against New Mexico inmates to go on unabated. There simply was no accountability. The Civil Rights Act will take one big step toward accountability. It is not perfect, but It should make prisons, jails and their medical contractors rethink their approach to inmate medical care. If it doesn’t, they will pay a price they have largely escaped in the past.
Recovery of Attorney Fees and Costs
Recovery of attorney fees and costs is very important. in civil rights claims. The recovery of attorney fees and costs is not so important for big cases against the New Mexico prisons and jails. It is far more important to those cases where gross medical neglect has occurred but somehow the inmate managed to avoid severe and permanent harm, or death.
Unfortunately, without severe harm or death, the potential financial recovery under state law for simple medical malpractice was often too small to justify attorney involvement. This is because most attorneys, including Collins & Collins, P.C., take inmate medical negligence cases on contingency meaning they take a percentage of a settlement or judgment.
Inmate medical negligence claims are very expensive to pursue. In addition to the costs of the litigation, these cases take enormous attorney and staff time. Simply put, attorneys could not take on state court medical malpractice cases nor would the cases survive in federal court where attorney fees and costs could theoretically be recovered.
Increase in Caps on Liability
The increase in potential financial liability to public bodies is extremely important for inmate rights. Prior to passage of the Civil Rights Act, the New Mexico Tort Claims Act’s limits on recovery in state court for medical malpractice was $400,000 for wrongful death and $700.000 for severe, permanent harm requiring future medical care.
The new limits (caps) are $2 million. In addition, recovery under the Civil Rights Act is not exclusive of other remedies. This means that recovery under the Tort Claims Act is still available allowing up to $2.7 million recovery per “occurrence”. Occurrence is not defined, and this will be very hotly contested in future court cases. The other caps issue that will be disputed is whether the caps apply to each defendant meaning that a separate cap would apply to NMCD and to its medical provider, and other NMCD contractors.
3 Year Statute of Limitations
The new 3-year statute of limitations is also very important. The New Mexico Tort Claims Act had a 2-year statute of limitations. However, there was also a Tort Claims Notice Requirement. The Tort Claims Act required a notice to an offending public body within 90 days of the medical negligence for personal injuries and 180 days for wrongful death.
The new 3-year statute of limitations merits additional discussion:
- There is no Tort Claims Notice requirement for civil rights violations. under the New Mexico Civil Rights Act. There is simply a 3-year statute of limitations.
- A Tort Claims Notice should still be sent if possible, however, because without it, an inmate cannot gain the potential additional $700,000 recovery under the Tort Claims Act.
- Inmates must still file medical grievances under New Mexico law. Failure to do so could result in dismissal of medical negligence claims even in state court for civil rights violations.
- The Civil Rights Act has its own notice provisions.
Required Notice of Claims
Although the 60- or 90-day Tort Claims Notice requirement will no longer be required under the Civil Rights Act, there is a notice requirement. The new requirement is one year from the date of the civil rights violation for personal injury claims and 18 months for wrongful death claims.
There are a couple of exceptions to the notice requirement. First, no notice is required if the public body had “actual knowledge” of the occurrence. Second, the one-year requirement is tolled for up to one year while the injured inmate is incapacitated.
Actual knowledge will be another point of contention that will be hotly litigated in the future. For instance, does a Tort Claims Notice suffice? How about a medial grievance?
Waiver of Sovereign Immunity
The New Mexico Tort Claims Act provided for immunity for lawsuits against public bodies. There were very limited exceptions to sovereign immunity under which inmates could file lawsuits. There is no sovereign immunity under the Civil Rights Act.
Collins & Collins, P.C. has filed many lawsuits against NMCD and its medical contractors that included claims that ended up getting dismissed due to sovereign immunity under the New Mexico Tort Claims Act. The gloves are off as of July 1, 2021. For any acts of reckless disregard and deliberate indifference to inmate medical needs occurring after July 1, all of those claims will be added back in.
Indemnification of Bad Actors Limits Full Accountability
This brings us to the next big disappointment under the Civil Rights Act is that public bodies will indemnify the individual bad actors committing the atrocities against New Mexico inmates. This is not so much a problem for most public bodies. It is a huge problem when referring to the New Mexico Corrections Department (NMCD).
Real change will not occur until these individuals are held individually accountable without taxpayers bailing them out in the end.
Civil Rights Act is Game Changer for Inmate Medical Malpractice Claims
The medical malpractice lawsuits filed by Collins & Collins, P.C. against New Mexico Corrections Department (NMCD) and its medical contractors involve extreme medical neglect, intentional cruelty, absolute callousness toward the illnesses of inmates, and deliberate indifference to inmate medical needs. They all involve violations of the New Mexico Constitution’s ban on cruel and unusual punishment. In most cases, they also involved violations of due process.
In short, the medical negligence in NMCD facilities is so extreme that cases occurring after July 1, 2021 will almost certainly be actionable under the Civil Rights Act in New Mexico state courts. This will change everything for inmates and their families. Collins & Collins, P.C. intends to do everything it can to insure that it does.
The Eighth Amendment prohibits cruel and unusual punishment including deliberate indifference to the serious medical needs of an inmate. Unfortunately, in the age of mass incarceration, this is far too common.
Deliberate Indifference of Prisoner’s Serious Medical Needs
The deliberate indifference may be on the part of the prison, the guards and/or the medical providers. It could result from the lack of provision of medical care by the prison. It might also include interference with prescribed care on the part of the guards and staff. Finally, it may and typically does include neglect of serious medical conditions on the part of the medical provider.
In each of these cases, the prisoner might have a §1983 claim under the Eighth Amendment. In addition, the prisoner might also have a medical malpractice claim against the medical provider who is in New Mexico often a private medical group.
Medical Malpractice Claim Against Medical Prison Medical Provider
A medical malpractice case, particularly against a private medical group or doctor, would follow the rules and procedures for the most part of any medical malpractice claim. As such, the standard for the doctor is not deliberate indifference but violation of the standard of care in the medical profession or medical field.
In brief, the standards for the medical provider are higher than for guards for obvious reasons.
Guards simply are not trained to identify medical conditions in the absence of clear signs of illness.
Standards for Guards: Objective v. Subjective Requirements
There is a two prong test for deliberate indifference of medical needs in prisons and jails. First is the objective part which basically means that the prisoner was actually sick and needed medical care. In other words, there would at some point need to be a diagnosis of the illness or the illness would have to very obvious even to a guard. Finally, the court will consider whether the symptoms suggested a serious medical need along with whether potential harm to the prisoner was serious.
The subjective component requires that the guard, staff, medical provider knew of the risks to the prisoner and chose to ignore them. This knowledge may be imputed if the symptoms would suggest to the average person that the prisoner was suffering a serious medical condition or event. In this case, the guard should take action to protect the prisoner through an appropriate medical referral for treatment. Keep in mind that if the guard does take reasonable action to obtain medical care, there is no 8th Amendment violation even if the outcome turns out poorly for the prisoner.
For Profit Prisons and Prison Medical Care
Medical neglect in privately run prisons and/or privately managed medical services inside of prisons often results from profit driven medical decisions. Medical care is expensive and not particularly aligned with the profit motive.
Mass incarceration for profit is the primary culprit. There have been trends toward criminal justice reform that might have alleviated this. However, it appears that those trends may have abruptly come to an end.
Prison Litigation Reform Act Requires Completion of Grievance Procedures Prior to Lawsuit – Albuquerque Attorneys
The Prison Litigation Reform Act (PLRA) requires that inmates in prisons and jails exhaust all administrative remedies prior to filing a civil rights lawsuit against the jail or prison in federal court. Basically, this means that the inmate must complete the grievance procedure entirely through the appeals stage before filing suit.
Navigating New Mexico Department of Corrections Grievance Process
The rules below are for New Mexico Department of Corrections facilities only. They do not necessarily apply to local and county facilities, each of which may have their own unique procedures. Federal Bureau of Prisons facilities also have their own rules and procedures. It is extremely important that the inmate follow the rules and procedures of the specific facility. This outline is merely a guide. It is not meant as legal advice. Because the deadlines run so quickly, it is solely up to inmates to follow the procedures at their own facility. The rules and procedures must be made available to the inmate under the Prison Litigation Reform Act as well as New Mexico law.
New SPLC report uncovers abuse and neglect at immigrant detention centers in the South
“Flooding the immigration detention system with hundreds of thousands of additional people will only lead to a grave human rights crisis.”
In addition to identifying inadequate medical care and widespread abuses, the study found that many immigrants languish in detention centers for months or sometimes years – typically without legal counsel and in violation of their rights – as they await hearings or deportation.
The Shocking Way ICE Neglected Immigrant Detainees As They Died
At least 18 people detained in U.S. federal immigration custody received subpar medical care that may have contributed to their deaths, a scathing new Human Rights Watch (HRW) report finds.
The people who have recently died in immigration detention included legal immigrants, undocumented immigrants, and people looking for protection under the country’s refugee law. The report reviews 31 cases of death after some of those details were released in June by the U.S. Immigration and Customs Enforcement (ICE) Office of Detention Oversight (ODO).
The right to be free of inhumane denial of medical care as well as the provision of medical care in a cruel and inhumane manner are addressed by numerous international human rights treaties including:
“article 25 (1) of the Universal Declaration of Human Rights (UDHR); article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); article 24 of the Convention on the Rights of the Child (CRC); article 12 of the Convention on the Elimination of All Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols. The right to health is also enshrined in over 110 national constitutions.”
CENTER FOR HUMAN RIGHTS & HUMANITARIAN LAW, A n t i – To r t u re I n i t i a t i v e
Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report
According to the above report, the United Nations long ago adopted principles prohibiting “cruel, inhuman and degrading punishment” of prisoners. In doing so, the 1982 UN General Assembly declared rightly that refusal to provide needed medical care and/or cruel, inhuman and degrading provision of medical services to prisoners constitutes not just a gross violation of medical ethics but a violation of international law. In short, provision of medical care in such as fashion is by international standards considered torture.
Likewise, the U.S. Supreme Court barred cruel and inhumane medical care or lack thereof in the 1976 case of Estelle v. Gamble. The U.S. Supreme Court does not use the term torture, but the behavior described and prohibited would very likely fall within the definitions set forth under international law.
United Nations’ Examples of Cruel and Inhumane Medical Care
The Report gives examples of behavior that would fit into the international definition of torture including “unsanitary pre-trial detention and prison facilities, lack of medical care, and death of prisoners and detainees as a result of defective medical assistance”.
These examples clearly describe New Mexico prisons under the New Mexico Corrections Department (NMCD) and the contractors that hire to provide medical care. Sadly, our firm alone Collins & Collins, P.C. can provide horrifying examples of each in NMCD with just the cases upon which we have filed lawsuits. Basic math will tell you that if our small firm has encountered numerous situations involving deaths and permanent severe physical injuries resulting from the intentional, deliberately cruel and inhumane denial of basic and what should be routine medical care, then there are many more cases out there of which we are not aware.
Examples from New Mexico Prisons
The medical care or more accurately, the lack of medical care in NMCD facilities most definitely fits the parameters of international definition of torture.
To illustrate, the best place to start here is with our firm’s prison spinal osteomyelitis cases. Osteomyelitis is an infection that gets into the bones. Spinal osteomyelitis is an infection that gets into the spine. Osteomyelitis is a rather slow moving infection. In other words, it takes quite some time for an infection to spread into and invade the bones, including the spine. Once it gets into the bones, it is still very easily treated with even minimally competent medical care. Like any infection, it can very readily and effectively be treated with antibiotics.
However, in NMCD facilities, it is not treated at all in many cases. It is not a matter of simple medical error or oversight. The refusal to treat what begin as very trivial infections until such time as they are life-threatening is a deliberate choice made by NMCD and its medical contractor. Refusal to treat osteomyelitis is cruel and inhumane to the nth degree in the case of NMCD.
Common Spinal Infection Fact Pattern in NMCD Facilities
Collins & Collins, P.C. has seen the same fact pattern in multiple cases that the firm has filed. These are the facts showing extreme medical negligence that recur repeatedly:
An inmate will have a minor infection, it could be a scratch, a pimple, a cut or some internal infection. The infection will begin to grow causing increasing levels of pain. The inmate will ask to have the infection checked out and for treatment. The inmate is told there is nothing wrong and is given ibuprofen. No lab tests are conducted to determine whether there is an infection despite the rampant rate of infections that prevails in prison environments.
The infection continues to grow for weeks and months with repeated requests for medical care, and repeated denials. During this time, the inmate reports increasingly severe pain. Due to the utter failure of the medical providers to provide basic care, the inmate will file medical grievances. Nothing happens, there is still no medical care and the grievances are either ignored completely or denied summarily by non-medical NMCD personnel.
The spinal infection continues to grow. The inmate conditions continues to worsen as the infection takes to the bones. Still, there are no lab tests conducted. Still there are no antibiotics. Still the inmate is given ibuprofen and told there is nothing wrong. Still there is no referral to a local emergency department to arrest the growing and now emergent spinal infection.
The infection continues to grow due to lack of basic antibiotic treatment. No lab tests are conducted, no antibiotics are prescribed, ibuprofen is the cure-all for the emergent infection and the crippling pain that ensues.
This exercise continues over and over and over until the inmate can no longer walk, care for himself, use the bathroom, shower, clothe himself or get to the dining room without help from fellow inmates. In one tragic case, the inmate went into a coma before he was finally transferred for treatment. Ultimately the result in this case was death because osteomyelitis and sepsis had destroyed his spine and full system failure from the sepsis had resulted.
And this is what it takes to get medical care for what are easily preventable spinal infections. Literally, it took a coma to get medical attention. In other cases, it comes close with full system failure imminent before the inmate is transferred for treatment.
Is this Medical Torture?
At the risk of stating the obvious, of course it is, at least by international standards. Of course, as blue as it is, New Mexico by way of NMCD and the other powers that be, do not view it as such.
Let’s do a little thought experiment. Think of a time when you had a cut that began to get infected. Think of how that cut begins to throb and burn. It’s painful, most would agree. Now imagine that the infection continues to grow and grow. The infection now moves into your bones, let’s say a finger. Now you have a bone infection. If you have never had a bone infection, which few people have, you will now have to imagine what that bone infection might feel like. Now let’s imagine that bone infection is allowed to continue to grow and with it the pain gets worse and worse. The infection still is allowed to grow now doing damage to the bone. The infection creates pus pockets in the bone creating enormous pain. Consider now that you go to urgent care or the emergency room and the doctor tells you that you are not in pain, that you are faking and sends you home with ibuprofen. Now consider this occurs time and time again until finally you are transported by ambulance to the hospital because you can no longer drive yourself. Consider that you are now in the hospital for weeks or months with multiple painful surgeries and painful invasive antibiotic treatment.
Finally, consider that all of this could have easily been prevented had the doctor behaved in a humane and professional manner.
Is it torture? Given that this is done deliberately and repeatedly to inmates, one would be hard-pressed to argue that it is not, at least again under international norms. NMCD norms could only call it typical.
Why Should You (the Taxpayer) Care?
The math is not difficult here. Basic medical care could prevent the spinal infection at nominal costs to the prison medical contractor. This cost has already been paid to the medical contractor by the terms of the contract with NMCD. The contract itself exceeds $40 million in the first year alone. The contract increases by the millions each successive year. Taxpayers have already paid for basic healthcare for the inmates. The medical contractor for any number of reasons, upon which I will allow you to speculate, decides not to provide this medical care. The medical contractor does this knowing that if the infection goes untreated, the inmate will likely at best need weeks or months of hospitalization to cure the untreated infection. Some as with our client mentioned above will die, in that case after months of hospitalization.
Who pays for the extended hospitalizations? You would be justified to guess that the medical contractor would pay for its gross reckless and deliberately inhumane medical neglect for which it alone is responsible. You would be wrong if you guessed this to be the case. In fact, it is you the taxpayer that pays. Once the inmate is in the hospital for 24 hours, New Mexico Medicaid picks up the tab. And New Mexico Medicaid is New Mexico taxpayers.
The state of medical care for New Mexico Corrections Department (NMCD) inmates is horrendous at best, horrifying at times. The prison medical grievance system is supposed to protect inmates who are not getting constitutionally adequate medical care. It does no such thing. In fact, the medical grievance system itself encourages and perpetuates grossly deficient medical care that is often recklessly incompetent, far too often seemingly intentionally cruel and generally deliberately indifferent to the serious and even life-threatening illnesses.
In short, the NMCD medical grievance system is corrupt and unconstitutional.
Many Lawsuits Filed Against NMCD and Its Medical Providers
Collins & Collins, P.C. has filed numerous lawsuits against NMCD and its medical providers alleging grossly negligent, deliberately indifferent and intentionally cruel failure to provide medical care. Evidence gathered through these lawsuits indicate that not a single inmate medical grievance was found in favor of an inmate by NMCD from June 2016 to November 2019. The firm has been unable to obtain more recent data from NMCD. It is fully expected that the same level of absolute indifference to the medical neglect of NMCD inmates will be found. NMCD simply does not seem to care one way or the other whether inmates are provided constitutionally adequate healthcare.
Purpose of Abuse of Medical Grievance Process is to Deny Inmates Access to Courts
Under both federal and New Mexico law, inmates must exhaust all administrative remedies prior to filing suit in either federal or state court. This is called exhaustion of administrative remedies (exhaustion). In the context of the prison medical grievance process, this means that the inmate must fully complete the medical grievance process. This in turn means filing the right paperwork within the deadlines set by NMCD. The prison medical grievance system is a maze of confusion and obfuscation. It is intentionally so. The point is to set traps for inmates who are rarely educated to the degree necessary to follow the byzantine and often contradictory grievance procedures. If an inmate fails to file all the right paperwork within the deadlines in the form mandated by NMCD, the inmate cannot file suit in court now matter how horrible the medical neglect and consequent injuries to the inmate.
The deliberately confusing and often contradictory grievance procedure requirements are alone sufficient to hold the medical grievance system unconstitutional. However, there is far more to it than that.
Retaliation for Filing Medical Grievance Process
The abuses and obstructions of the medical grievance process are far too numerous to enumerate here. However, they have been enumerated in a lawsuit filed against NMCD by Collins & Collins, P.C. attacking the constitutionality of the medical grievance process. The list of abuses and obstruction is very lengthy though certainly not exhaustive. To view the full magnitude of NMCD abuses in the medical grievance process, view the PETITION FOR DECLARATORY RELIEF AND TEMPORARY RESTRAINING ORDER (PETITION) filed by Collins & Collins, P.C. on May 20, 2021.
NMCD inmates have reported directly to Collins & Collins, P.C. the many abuses and obstructions of the grievance process. One of the most frequently reported abuses is retaliation for filing grievances. It seems that NMCD grievance officers often also serve as disciplinary officers. This is most definitely the case at a number of facilities including Central New Mexico Corrections Facility in Los Lunas, New Mexico. This fact alone suggests that the medical grievance process and procedures are unconstitutional.
Retaliation for Questioning the Constitutionality of NMCD Medical Grievance Process
Collins & Collins, P.C. has significant direct experience with its own clients being retaliated for filing grievances (or for talking to Collins & Collins, P.C. generally). This is in fact what precipitated the PETITION. In fact, the high probability of retaliation for joining in the PETITION is conveyed to the inmates before allowing them to join in the lawsuit. This was done as a matter of both professional ethics and concern for inmates getting into something more than they expected. The inmates are extremely brave in joining the suit, each fully understanding the almost certain retaliation against them for doing so.
In fact, many of the inmates were retaliated against prior to the suit even being filed. Inmates lost privileges, lost good time and at least one was placed in solitary confinement after her legal mail from Collins & Collins, P.C. was opened and read. This in turn resulted in numerous meetings involving inmates, NMCD and its prison management contractors warning inmates against contacting Collins & Collins, P.C. Surprisingly, these meetings were held in open prison pods with numerous witnesses. NMCD and its contractor have taken to individual interrogation of inmates about their relationship and conversations with Collins & Collins, P.C. The end result of one such interrogation was transfer from Western New Mexico Correctional Facility to Spring Correctional Facility which is facing closure due to its abhorrent conditions. Even more shocking, the inmate was placed in solitary confinement upon arrival at Springer.
NMCD Fraud on the Courts
In every case filed by Collins & Collins, P.C., NMCD has filed a Motion for Summary Judgment seeking dismissal of the lawsuits due to alleged failure of the inmates to exhaust administrative remedies. According to NMCD it seems, no inmate ever files a proper medical grievance. The allegations are clearly fraudulent and in fact NMCD has been caught in its attempted fraud on the courts. However, this is not enough. NMCD should be stopped in its tracks to prevent it from filing these fraudulent Motions for Summary Judgment against inmates. Failure to dismantle the NMCD medical grievance system will allow NMCD to continue its frauds on the court in every inmate lawsuit. Beyond its unconstitutionality, the medical grievance system along with the legal exhaustion requirements places an enormous and unnecessary burden on the Court.
Toss NMCD Medical Grievance System Completely
The entire NMCD medical grievance system must be thrown out. It is a case of the fox guarding the hen house. The entire system is geared toward denying NMCD inmates adequate medical care and then access to the courts when disaster strikes with permanently disabling injuries or death to the inmates. NMCD simply cannot be allowed to continue to control and manage the prison medical grievance process. NMCD’s control and management of the prison medical grievance system is an ongoing affront to the New Mexico Constitution, an embarrassment to the State, and an extraordinary burden on New Mexico taxpayers.
There are a number of very important steps that must be completed prior to filing suit against a New Mexico prison or jail. Failure to complete these steps can prevent a prisoner from ever obtaining justice for wrongs committed by the prison, jail or their respective private contractors. To make things worse, prisons and jails, especially New Mexico Corrections Department (NMCD) who we will focus on here, will do everything it possibly can to prevent the prisoner from completing the steps. Much of what NMCD does to keep prisoners out of court is unconstitutional. All of it is grossly unfair. Some are callous and cruel. The rest are run of the mill deception that is baked into NMCD’s behavior, akin to standard operating procedure.
The Steps Must be Completed to the Degree Possible
Despite NMCD’s obstruction, it is important that the inmate try to complete these steps the best he or she can. NMCD’s obstruction will much more often than not prevent the inmate from completing the steps. Naturally, NMCD will then try to profit on its own illegal conduct arguing to the Court that the inmate’s lawsuit must be thrown out because necessary steps were not completed. This doesn’t mean the inmate should give up. It just means there is going to be a fight and NMCD’s obstruction and deception will carry right into the courts.
Fortunately, New Mexico State Courts are on to NMCD. The federal courts are an entirely different ballgame with the odds stacked heavily against inmates no matter what the misconduct of NMCD. The reasons for this are complicated but the gist of it is that cases in federal court often end before evidence necessary to the case can be collected due to qualified immunity. As a result of qualified immunity laws, federal court judges do not get to see the evidence of routine atrocities committed against New Mexico inmates at the hands of NMCD and its contractors. The situation is very different in State Court where qualified immunity is not an obstacle.
Step 1: File an Informal Complaint
Under both state and federal law, inmates must exhaust the prison or jail grievance process prior to filing suit. This means completing the grievance process. NMCD requires that an inmate file an informal complaint within 5 days of the alleged wrongful act by the prison or its contractors. Once the prisoner hears back from the prison on the Informal Complaint, the prisoner must then file a formal grievance within 5 days. Once the prisoner hears back on the formal grievance, the inmates must file an appeal within 5 days. This all sounds easy enough, but it is anything but easy.
NMCD’s obstruction, deceit, manipulation and misguidance is staggering. Rather than discuss here the countless ways that NMCD tries to keep prisoners from completing the grievance process, the reader can, if interested review the Petition for Declaratory Relief and Temporary Restraining Order by Collins & Collins, P.C. related to the pervasive, illegal and unconstitutional abuses of the medical grievance system. The Petition seeks an Order from the Court declaring the entire prison grievance process unconstitutional. The scale and scope of misconduct is addressed there in 292 pages of complaint and exhibits but is far too expansive to discuss here.
Step 2: File Tort Claims Notice
To sue NMCD in State Court on state law claims, the prisoner must file a Tort Claims Notice within 90 days of the alleged wrongdoing. Compared to the 5 days allowed for the Informal Complaint, this seems like an eternity, but the 90 days can run very quickly.
The New Mexico Tort Claims Act is pretty harsh even in non-prison settings. It results in many valid cases being barred from suit. The first big trap is the Tort Claims Notice. If it is not sent within 90 days, it will bar the prisoner’s lawsuit completely in State Court. The lawsuit might still be filed in federal court, but federal court is a burial ground for prisoner lawsuits. In short, do not miss the Tort Claims Notice deadline.
Step 3: Preservation of Evidence Letter
A preservation of evidence letter should be sent right away. Collins & Collins, P.C. incorporates it into the Tort Claims Notice with what’s called spoliation of evidence warnings. Basically, preservation of evidence is mandatory once NMCD is on notice of the need to preserve the evidence. NMCD has a penchant for destroying and/or concealing evidence so the Preservation/Spoliation Letter is essential. The list of items to preserve in the Tort Claims Notice/Preservation Letter is expansive. It covers basically everything that might relate to the case. If NMCD destroys evidence after receiving the letter, there can be severe sanctions.
Surprisingly, NMCD does not always take the Preservation Letter too seriously. Fortunately, it does not matter if NMCD takes it seriously. The Courts do. If NMCD conceals or destroys evidence after receiving the Preservation Letter, the Courts can and have ordered spoliation sanctions against NMCD. At a minimum, the sanctions will include a presumption that the evidence destroyed was favorable to the inmate. That is what the jury will be told. In the extreme case of sanctions, a Court can issue summary judgement on the issues at hand related to the evidence destroyed or in very rare circumstances, the entire case can be defaulted.
Step 4: Inspection of Public Records Act Requests
The Inspection of Public Records Act (IPRA) goes hand in hand with the preservation of evidence letter. You can get a lot of information with an Inspection of Public Records Act request including the entire inmate file which should include the grievance file, disciplinary file and location history. However, we ask for these independently as well. The expectation is that the inmate file will be incomplete, but it is a start. If NMCD refuses to provide the inmate file, file an IPRA lawsuit. NMCD has no defense for refusal to provide public records. Statutory damages are up to $100/day for violation of IPRA.
Step 5: Collect Medical Records
It should be noted that medical records cannot be collected via IPRA. It would be a violation of patient privacy laws. In order to obtain inmate medical records, whether NMCD or outside medical records, a HIPAA release is needed. As with all things NMCD, it should be expected that a full set of medical records will not be provided. This is a topic unto itself but suffice it to say that just obtaining a full set of medical records can be a battle all its own.
Spoliation of Evidence
Spoliation is the technical term used by lawyers and judges for the concealment and/or destruction of evidence. Prisons are a black box when it comes to the evidence within its walls. Unlike a normal public institution, prisons are extremely secretive. This secrecy allows a wide range of atrocities against inmates with no accountability for the prison or jail. In fact, the very purpose of the secrecy is to avoid accountability.
Federal and State Regulations for Medical Record-Keeping
There are strict medical record-keeping regulations for all medical providers with the exception of medical care provided within prison walls. The Health Insurance Portability and Accountability Act (HIPAA) and the Health Insurance Portability and Accountability Act (HITECH) are the two most important acts related to medical record-keeping. Both have very strict legally mandated guidelines on medical record-keeping. Likewise, there are strict financial and even criminal penalties for their breach.
HITECH in particular calls for electronic health records (EHR). EHR is critical for patient care for a number of reasons. In fact, without EHR, the “Portability and Accountability” in HIPAA is impossible. Paper records simply cannot be verified as accurate and complete. Paper records may easily be modified, altered, erased and/or destroyed. EHR protect against the alteration and destruction of medical records. Naturally, despite HIPAA and HITECH has chosen to stick with paper medical records. This takes us back to premise which is that NMCD wishes to avoid accountability which is in the very title of HIPAA.
HITECH Compliance Under NMCD Contracts with Medical Contractors
Remarkably, the contract between NMCD and its previous medical provider required compliance with HITECH compliant medical records meaning that the contractor was to implement an electronic medical record-keeping system. This was never done.
Collins & Collins, P.C. has filed numerous medical malpractice lawsuits over the last few years. In each lawsuit, the lack of electronic health records has been alleged in the lawsuits. In fact, lack of an electronic health records system is a major element of the many medical negligence counts against NMCD. In a case involving any other medical provider outside of a prison or jail, non-compliance with HITECH Act would be negligence per se meaning that the lack of compliance would be sufficient for a finding of negligence.
Consistent with NMCD’s complete lack of respect for medical health of inmates, NMCD’s decided to remove the HITECH compliance requirement completely from the contract with the new medical provider. Interestingly, the contract still calls for electronic health records but no EHR has been implemented. NMCD seems intent on sticking with paper medical records.
Why is this?
Lack of EHR Allows Destruction of Evidence
The answer is simple. Paper records can be manipulated, altered and destroyed at will. Integrity of the medical records is entirely reliant on the integrity of the providers entering the records and the medical records custodian. The medical records custodian is in fact NMCD itself. This cannot be overemphasized. NMCD is responsible for the storage and maintenance of NMCD inmate medical records. This is so even once it is clear that there are legal claims for medical negligence against NMCD and its medical contractors.
It is fairly well established that NMCD cannot be trusted. NMCD is prone to conceal, alter, falsify and destroy records as a rule. Despite being caught and sanctioned for spoliation, NMCD continues to engage in the behavior. Decisions are being made at the highest levels of NMCD that have determined that the risks of spoliation sanctions are worth taking. After all, NMCD does not get caught every time. Many times, they get away with it. And when they do get caught, the consequences are often trivial.
Spoliation of Medical Records Difficult with EHR
It is extremely difficult to alter, manipulate, conceal or destroy medical records with an effective EHR in place. EHR systems have many protective measures in place that provide for auditing of medical records. These audit functions make it relatively easy to determine if the medical records are complete and accurate. This means it is easy to determine whether records have been removed or altered. Not only that, but the audit tools will tell when, where and by whom the medical records were altered or deleted. An audit log will tell a reviewer of the medical records everything necessary to determine if the medical records for a patient are complete and accurate. NMCD clearly does not welcome this level of scrutiny. Use of paper records only, which is almost too absurd to utter out loud with modern medicine, allows NMCD at its will to modify, alter, conceal and destroy inmate medical records. That is the whole point of sticking with paper medical records.
Motivation for NMCD Paper Medical Records Simple
It is no wonder that NMCD has decided to stick with paper records. NMCD has a penchant for altering and destroying evidence. EHR would prevent the destruction of medical evidence. NMCD will fight and/or ignore every measure including federally mandated medical record-keeping that would in any way result in full accountability for the medical atrocities that inmates suffer routinely in NMCD facilities.