Collins & Collins, P.C. have taken hundreds of calls from inmates and their families relating to the Coronavirus over the past year. Unfortunately, we can’t do much more than provide some general guidance and to protect deadlines and evidence.
General Guidance on COVID-19 Neglect in New Mexico Prisons
To that end, we provide guidance on New Mexico Corrections Department (NMCD) grievance process requirements which are so byzantine that it is difficult for even attorneys to understand. This is of course by design and is meant only to prevent inmates from ever seeking justice in court.
There are a few things that must be addressed early on if an inmate wants to protect his or her right to file a lawsuit in the future. First, the most pressing deadline is the nonsensical and deliberately unjust 5 day deadline on filing an informal complaint. The inmate should then complete the grievance process. However, even NMCD’s own policies are unclear on what’s this means. They will argue in court that this means filing a formal grievance and then a appeal at the appropriate times. Again, even here, the rules are confusing because, based upon reporting, NMCD rarely responds to medical grievances. So the question is when should the formal grievance be filed, and then after that when must the appeal be filed. Because of NMCD’s deliberately misleading and confusing policy statements, it is very difficult to advise inmates on this matter other than to say to complete the grievance process to the end if you are not prevented from doing so by what almost inevitably will be obstruction and interference by NMCD.
The second requirement, the Tort Claims Notice requirement, is more straight forward because it was not crafted by NMCD and is not interpreted by the courts for the purpose of denying inmates access to the courts. The New Mexico Tort Claims Act requires that a Tort Claims Notice (TCN) be sent within 90 days of the alleged negligence. Collins & Collins, P.C. therefore sends a lot of Tort Claims Notices as a courtesy to protect inmate rights to file claims against NMCD and its medical contractors. The TCN that we send also includes preservation of evidence language. Once NMCD receives the preservation of evidence letter, it must preserve all evidence under penalty of spoliation. Spoliation penalties can be severe, so it helps to deter NMCD’s natural proclivity toward the destruction of evidence.
COVID 19 Case Evaluation
Generally, the thing we are unable to do is to take on strictly COVID 19 cases. In other words, we simply cannot file COVID 19 lawsuits absent of other medical negligence and severe harm to the inmate. This is unfortunate but our firm simply does not have the resources to take on all of these cases. It is particularly bothersome to us because we saw very early into the pandemic that NMCD was neither inclined nor competent o handle COVID-19 in its facilities. Simply put, as we wrote early on, NMCD was and remains unfit to handle COVID-19. This has played out over the last year as expected.
Thus, if a case involves only COVID 19 and there is no other medical negligence and resultant harm, the case is more appropriate for organizations such as the American Civil Liberties Union (ACLU). For example, if an inmate has not been protected from COVID 19 and contracts the virus, we cannot file a lawsuit unless there was preceding medical negligence making the inmate highly susceptible to COVID 19 and the inmate suffers severe harm or death. By way of further example from one file, our deceased client had suffered broken ribs from a fall in a prison. The broken ribs went untreated causing the inmate to suffer pneumonia. This caused our client to be very vulnerable to COVID 19 from which NMCD provided no protection. The client did contract the disease. Sadly, he passed away a result of his pneumonia and the consequent onset of severe COVID 19.
Continued Monitoring of Inmate Health
In addition to sending the Tort Claims Notice and preservation of evidence language, we also monitor inmate health. There are many cases that we cannot immediately file in court. However, we have had a number of cases where we could not at first file a lawsuit but we continued to monitor the inmate’s health which over time worsened considerably. Because of virtually inevitable continued medical neglect by NMCD, these cases that did not at first justify a lawsuit did turn into lawsuits.
The point is that we are always willing to monitor the health of inmates. We do our best to improve the medical care for New Mexico inmates. The best way to accomplish this is to stay on top of the health conditions of the inmates that contact us. Consequently, we send many Tort Claims Notices and monitor the health of those inmates. But the sad truth is that NMCD apparently ignores our letters just as they ignore inmate medical grievances. In fact, Collins & Collins, P.C. has directly sent many medical grievances to NMCD on behalf of inmates. All but a few have been ignored. The only medical grievances that were not ignored were met with letters saying that NMCD would not accept medical grievances from a lawyer. This is just one more means by which NMCD tries to deny inmates access to the courts.
Collins & Collins, P.C. will not be deterred by any of NMCD’s misconduct and attempts to deny inmates medical care, the medical grievance process and access to the courts. Neither should inmates. Inmates and their families must do all they can if NMCD prison conditions are to improve. Collins & Collins, P.C. will continue to do our part as evidenced by piles of lawsuits filed already against NMCD and the many more that will be filed.
Civil Rights Organizations
At present, the lead entity on issues related to prevention and contraction of COVID 19 is the ACLU. In fact, the ACLU has filed a couple of class action lawsuits to address the dangers of COVID 19 to NMCD inmate populations. The ACLU is the appropriate organization to take on these class actions for a number of reasons. First, the ACLU has enormous resources and significant attorney staffing. The ACLU is a national organization with Chapters in all 50 States. Second, it is a non-profit with enormous funding from ACLU members from around the nation and around the world. Finally, the lawsuits for cases where there has been no substantial harm to the inmate are seeking only injunctive relief. This means they are seeking to force NMCD to put protective measures in place and also to gain the release of inmates susceptible to COVID 19.
To that end, the ACLU filed a class-action lawsuit in August of 2020 seeking the early release of defined categories of offenders in order to protect vulnerable inmates and to protect against the spread of the virus in the prison systems and the communities where they are located. The lawsuit focused on inmates with underlying health conditions related to age, obesity, chronic disease such as Hepatitis C (HCV), Asthma, Diabetes, Hypertension Heart Disease, cancer and other underlying conditions putting those inmates at severe risk from COVID 19. The ACLU has filed a number of other lawsuits related to COVID 19 as well. https://www.aclu-nm.org/en/aclu-nm-response-during-covid-19
If you or a loved one is incarcerated and has questions around what can be done around the Coronavirus and the dangers it poses, you should contact the ACLU for possible inclusion in the class-action lawsuit.