West Virginia corrections officials settle with inmates in jail class action lawsuit

According to an order filed Tuesday by U.S. District Judge Frank W. Volk, attorneys representing Michael Rose and Edward Harmon — two inmates at the Southern Regional Jail (SJR) near Beckley — reached a settlement with attorneys representing former Division of Corrections and Rehabilitation interim Commissioner Brad Douglas, former DCR Commissioner Betsy Jividen, current interim DCR Commissioner William Marshall, former Department of Homeland Security Secretary Jeff Sandy, and former Southern Regional Jail Superintendent Michael Francis.

Volk scheduled a status conference in the case between the parties Thursday at 12:30 p.m. There were no details about the settlement other than that a limited fund class action will be involved, defined by the University of North Carolina School of Law as a mandatory settlement, which provides no option to opt out for claimants in the class action lawsuit.

“Plaintiffs and the State Defendants (Jividen, Sandy, Douglas, Marshall, and Francis) have reached a resolution of this matter,” Volk wrote. “These parties believe that this resolution will require the formulation of a Limited Fund Class Action and ultimately approval of the Court.”

Volk’s order comes more than a week since U.S. Magistrate Judge Omar J. Aboulhosn’s 39-page order last week finding in favor of a motion from the inmates seeking default judgment against the state. Aboulhosn accused DCR officials of intentionally destroying evidence, including emails and electronically stored documents.

During an administrative briefing last week, Justice and DHS Secretary Mark Sorsaia denied the intentional destruction of emails or documents, blaming miscommunication between DCR and the state Office of Technology, which deleted emails for former employees after a 30-day period after DCR failed to notify the office to hold the email files.

Douglas also was fired last week, along with a DHS attorney directly involved with the case. Additional missing documents have been located.

Rose and Harmon filed a class action lawsuit in 2022 in the U.S. District Court for the Southern District of West Virginia against state and county officials, alleging inhumane living conditions and overcrowding at SJR. The two inmates are seeking a ruling ordering the state to correct the conditions at the jail. The seven Southern West Virginia county commissions and two health-care providers at SJR are not part of the settlement.

According to Tuesday’s order, the lead counsels for Rose and Harmon — Stephen New, Michael Mullins and Chip Williams — are seeking guidance from the court on how to proceed regarding other motions, including an Oct. 30 motion granted by Aboulhosn requiring Justice and Governor’s Office Chief of Staff Brian Abraham to provide certain documents to the plaintiffs.

Attorneys for Justice and Abraham filed objections to the discovery requests Monday, arguing that the requests are unduly burdensome and irrelevant to the case being brought by the SRJ inmates. They also argue that the granted motion violates the executive privilege and deliberative processes of the Governor’s Office, and that it violates state sovereign immunity.

Attorneys for Rose and Harmon filed a response Monday in opposition to objections from Justice and Abraham to Aboulhosn’s discovery order. Attorneys for the SRJ inmates are seeking documents from Justice and Abraham regarding the firing in 2022 of Jividen and an investigation conducted that same year by Sandy of SJR, including an on-site visit.

In his Monday filing, New argued that Justice and Abraham already opened the door for documents to be provided as long as they could include a privilege log, a document explaining that certain documents are being withheld due to certain exclusions.

“In other words, the Witnesses set the standard and the Magistrate Judge adopted that standard,” New wrote. “They cannot now seek a determination that they, not the Magistrate Judge, acted incorrectly.”

New also argued that Justice and Abraham have already provided documents that could conceivably be considered privileged documents and communications internal to the Governor’s Office.

“For example, the Witnesses state that ‘[t]he Governor’s Office learned of certain complaints and accusations at SRJ and solicited information to help determine what actions to take.’ This statement discloses that the investigation supposedly was done in response to complaints and accusations as opposed to any other reason,” New wrote, “Thus, while these Witnesses claim a privilege, they have no problem disclosing certain information as to their decision-making.”

Attorneys for Rose and Harmon are also seeking documents from Justice and Abraham regarding discussions surrounding keeping electronically stored information (ESI).

“With respect to the determination of any involvement in the failure to preserve ESI information, the email indicating that Sandy’s email account is to remain active raises a question, despite counsel’s explanation, as to amount of control the Governor’s Office had over the ESI information related to (DCR/DHS). The Magistrate Judge, having determined that the evidence was destroyed, reasonably concluded that this was a proper area of inquiry. If, as counsel represents, the Governor’s Office had no involvement, then a simple response is ‘no such documents exist.’”

In a separate class action lawsuit brought in August by adult and juvenile inmates against DCR about conditions in all of the state’s regional jails, prisons and juvenile facilities, attorneys for Justice filed a motion to dismiss the case Monday.

That lawsuit accuses the state of understaffing, overcrowding, and delays of deferred maintenance for facilities. The inmates are seeking a ruling in their favor and an order to require the state to spend available surplus funds on staffing and maintenance.

Attorneys for Justice claim he is immune from the lawsuit due to sovereign immunity, which shields the governor from civil lawsuits in certain circumstances. While the governor, as the chief executive of the state, oversees executive branch agencies, Justice’s attorneys argue that he does not have direct supervisory authority over state prisons and jails.

Justice attorneys also argue that the plaintiffs have failed to show their issues are traceable to actions by the governor and that they cannot show that Justice has been deliberately indifferent to conditions in the corrections system.

“Quite the opposite. In fact, Plaintiffs’ own complaint demonstrates the Governor has for years focused his time and energy seeking to address the alleged risks to health and safety in those facilities,” wrote attorney Michael Hissam.

A state of emergency has been in place for the past 15 months due to severe staff vacancies in prisons and jails, with members of the West Virginia National Guard assisting. Justice and the Legislature included money in the current budget for deferred maintenance for correctional facilities. An August special session saw the Legislature pass bills to increase the pay for correctional officers and give a one-time bonus to correctional staff.

“…Not only have Plaintiffs failed to plausibly demonstrate the state of mind of recklessness as to the Governor concerning conditions of confinement, they have affirmatively pleaded the opposite: that the Governor is not only subjectively aware of the issues facing state correctional facilities, but that he has spent his time in office focused on finding solutions to them,” Hissam wrote.