Attorneys spar over motion to dismiss West Virginia corrections class action lawsuit

Attorneys for inmates in the state’s entire system of 11 prisons, 10 regional jails, 10 juvenile centers and three work-release sites filed a response Tuesday to a motion to dismiss filed last week by Mark Sorsaia, the cabinet secretary for the Department of Homeland Security, which oversees the Division of Corrections and Rehabilitation.

The case was filed on behalf of: Thomas Sheppheard, an inmate at Mt. Olive Correctional Complex in Fayette County; Tyler Randall, an inmate at the Southwestern Regional Jail in Logan County; and an unnamed juvenile at the Donald R. Kuhn Juvenile Center in Boone County.

The class action lawsuit filed Aug. 8 in the U.S. District Court for the Southern District of West Virginia against Sorsaia and Gov. Jim Justice accuses the state of understaffing, overcrowding, and for delays of deferred maintenance for facilities. The state is accused of violating the Eighth Amendment, the constitutional rights of inmates against cruel and unusual punishment.

“Despite the constitutional requirements set forth in the Eighth Amendment, (Justice and Sorsaia) have subjected inmates housed at all the state’s correctional facilities and other such facilities throughout the state, including Plaintiffs, to inhumane living conditions, deprived them of basic human necessities, and acted with deliberate indifference towards their health and safety,” wrote Stephen New, one of several attorneys representing the inmates.

The inmates are seeking a ruling in their favor and an order to require the state to spend no less than $330 million on staffing and maintenance with available funds or by submitting appropriations bills between now and the next legislative session beginning in January 2024.

New cited testimony regarding decades of poor prison conditions and understaffing from former interim DCR commissioner Brad Douglas, who was fired two weeks ago for his handling of discovery requests in a separate federal class action lawsuit brought by New regarding the Southern Regional Jail; former DCR commissioner Betsy Jividen, who was forced to resign by Justice in 2022; and former DHS cabinet secretary Jeff Sandy, who retired over the summer.

Both Justice and Sorsaia filed motions to dismiss the lawsuit last week. In their motion, attorneys for Sorsaia argue that he has no authority to appropriate money to fix the issues cited, with that authority resting with the governor and Legislature.

“There is no alleged participation by Sorsaia in any alleged constitutional deprivation,” wrote attorney Caleb David. “Sorsaia was appointed to his position as Cabinet Secretary effective August 1, 2023. This Complaint was filed only one week later, on August 8, 2023. There is no plausible allegation that satisfies the subjective component, that Sorsaia knew of and disregarded an excessive risk to inmate health or safety…”

They also argue that the lawsuit has been rendered moot since Justice and the Legislature included money for deferred maintenance for correctional facilities from some of the $1.8 billion surplus for Fiscal Year 2023. An August special session saw the Legislature pass bills to increase the pay for correctional officers and a one-time bonus for correctional staff.

Attorneys representing inmates at the Southern Regional Jail near Beckley, and attorneys representing current and former state corrections officials, met last week for a status hearing regarding a proposed $4 million settlement in a federal class action lawsuit regarding conditions at the jail. The settlement came after a magistrate judge found in favor of a motion from the inmates seeking default judgment against the state after it was revealed that emails and other electronic documents were destroyed.

One of the former DCR officials, Jividen, was in Wheeling Tuesday presenting before the Legislative Oversight Commission on the Regional Jail and Correctional Facility Authority on a re-entry simulator she helped create to help policymakers understand what those released from incarceration go through once back in society.

Commission Co-Chairman Jason Barrett, R-Berkeley, attempted to ask Jividen about jail conditions when she was commissioner. Jividen was first appointed as commissioner for DCR in 2018, but was forced to resign last year under pressure over the death at Southern Regional Jail of a relative of Department of Transportation Cabinet Secretary Jimmy Wriston.

“You were commissioner for a number of years,” Barrett said. “What were the conditions like then and how did that affect inmates and their re-entry…can you talk about the conditions while you were commissioner and how that related to the inmates?”

Before Jividen could answer, Commission Co-Chair David Kelly, R-Tyler, stepped in to keep questions to Jividen focused on her presentation on the re-entry simulation program.

“We’re going to keep these questions tailored for this presentation,” Kelly said. “We’re not going to go back in time. This is not the time or the place.”

“I think it is an important question,” Barrett said.

Del. Joey Garcia, D-Marion, is a commission member and minority chairman of the House Jails and Prisons Committee. In a press release Tuesday evening, Garcia said many lawmakers are poised to begin the 2024 regular session of the Legislature in January with no first-hand knowledge of jail conditions and no long-term solutions.

“We’re here at legislative interims and most legislators haven’t been to an active jail or prison,” Garcia said. “It’s hard to make good policy until you see the conditions yourself and hear firsthand the concerns of correctional officers and staff members. In light of recent developments with litigation at the Southern Regional Jail, we need more transparency and accountability with respect to human rights violations in West Virginia jails and prisons.”