Patrick Earl Conely, Appellant v. Texas Board of Criminal Justice et al., Appellees

NO. 03–11–00094–CV

-- May 30, 2012

Before Chief Justice Jones, Justices Pemberton and Henson 

M E M O R A N D U M   O P I N I O N

Appellant Patrick Earl Conely, an inmate confined in the Institutional Division of the Texas Department of Criminal Justice (TDCJ), who is appearing pro se and in forma pauperis, appeals the dismissal of his suit against the Texas Board of Criminal Justice and Candace Moore.   Because we conclude that the trial court did not abuse its discretion in dismissing Conely's suit pursuant to chapter 14 of the Texas Civil Practice and Remedies Code, we will affirm.   See Tex. Civ. Prac. & Rem.Code Ann. §§ 14.001–.014 (West 2002).

FACTUAL AND PROCEDURAL BACKGROUND

Conely filed suit in district court pursuant to 42 U.S.C. § 1983 (2003).   Conely alleged that McConnell Unit librarian Candace Moore deprived him of his right to exercise his religion through her actions related to his correspondence with Bill Bucholtz, a member of a Jehovah's Witness congregation with whom Conely claimed to have “a close religious relationship.”   Conely contended that Moore's conduct was in retaliation for his having filed numerous administrative grievances against her or related to her actions.   According to Conely, Moore's conduct violated his First, Fourteenth, and Eighth Amendment rights to freely exercise his religion, to be free from retaliation, and to due process.   Conely also alleged that Moore's conduct violated the Texas Theft Liability Act, see Tex. Civ. Prac. & Rem.Code Ann. §§ 134.001–.005 (West 2011), and 18 U.S.C. § 1702 (2000), which makes obstruction of correspondence a criminal offense.

The defendants filed a motion to dismiss the suit as frivolous pursuant to section 14.003 of the civil practice and remedies code on the ground that the claims asserted had no arguable basis in law.   See id. § 14.003. The defendants also moved to dismiss the suit on the ground that Conely failed to comply with chapter 14's procedural requirements.   See id. §§ 14.004, .006.   The district court granted the motion and dismissed the suit with prejudice on the ground that the claims are frivolous.   Conely perfected this appeal.

DISCUSSION

Chapter 14 of the Texas Civil Practice and Remedies Code applies to all suits, such as this one, filed by inmates who declare themselves unable to pay costs.   Id. § 14.002(a).  Section 14.003 authorizes a trial court to dismiss an inmate's claim, filed in forma pauperis, either before or after service of process occurs, if the court finds the claim to be frivolous.   Id. § 14.003(a)(2).   A claim is frivolous if it has no basis in law or fact or if its realistic chance of success is slight.   See id. § 14.003(b)(1), (2).   A claim is considered to have no arguable basis in law when either the legal theory on which it is based is meritless or the factual allegations on which it is based are wholly incredible or irrational.  Nabelek v. District Att'y of Harris Cnty., 290 S.W.3d 222, 228 (Tex.App.—Houston [14th Dist.] 2005, pet. denied).

We review dismissal under chapter 14 for an abuse of discretion.  Leachman v. Dretke, 261 S.W.3d 297, 303 (Tex.App.—Fort Worth 2008, no pet.).   A trial court abuses its discretion if it acts unreasonably or without reference to any guiding rules or principles.  Id. We review de novo whether the plaintiff's claims have no basis in law such that dismissal on that ground is authorized.   See Retzlaff, 94 S.W.3d at 653.   In conducting our review, we take as true the allegations in the plaintiff's petition.  Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex.App.—Houston [1st Dist.] 2006, no pet.).   We examine the claims asserted and the relief requested to determine whether the petition stated a cause of action that could authorize relief.  Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex.App.—Fort Worth 2009, pet. denied).

In his second issue, Conely claims that the trial court erred in dismissing his “First and Fourteenth Amendment due process claims” brought pursuant to 42 U.S.C. § 1983.   As an initial matter, we note that the First Amendment does not contain any due process protections.   The allegations Conely relied on in his petition to support his “Fourteenth Amendment claim” are (1) as a result of Moore's conduct, Bucholtz did not receive some biblical documents that Conely was attempting to return to him, and (2) Conely did not receive notice from Moore, as required by the operations manual for the mailroom, that the stamp on his letter was removed or that his letter to Bucholtz was sent to another destination.   Elsewhere in the petition, Conely alleged that Bucholtz did receive the letter he sent but apparently not the biblical documents.   It appears, therefore, that Conely claimed to have been deprived of a stamp and some biblical documents without due process.   Although it is not entirely clear from his pleadings, it seems that the biblical documents did not belong to Conely but to Bucholtz, which is why Conely was returning them.   And the stamp that Moore allegedly confiscated was one provided by Bucholtz for Conely's use in returning his completed lesson and the biblical documents to Bucholtz.   Assuming, however, that the stamp and biblical documents did belong to Conely, the Due Process Clause is not necessarily violated when a prison official either negligently or intentionally deprives an inmate of property.   See Aguilar v. Chastain, 923 S.W.2d 740, 743–44 (Tex.App.—Tyler 1996, writ denied) (citing Daniels v. Williams, 474 U.S. 327, 328 (1986), and Hudson v. Palmer, 468 U.S. 517, 533 (1984)).  “[D]eprivations of property caused by the misconduct of state officials do not infringe constitutional due process provided adequate state post-deprivation remedies exist.”  Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.1994).   The legislature has provided an administrative remedy to pay inmates' claims for property lost or damaged by the TDCJ. See Tex. Gov't Code Ann. §§ 501.007, .008 (West 2004).   Therefore, Conely's allegation that his property was confiscated does not give rise to a section 1983 claim.   See Murphy, 26 F.3d at 543–44;  see also Aguilar, 923 S.W.2d at 743–44.   To the extent Conely complains that his due process rights were violated by Moore's failure to follow TDCJ policy, “a prison official's failure to follow the prison's own policies, procedures or regulations does not constitute a violation of due process, if constitutional mimina are nevertheless met.”  Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.1996).   Constitutional minima are satisfied in this case because an adequate post-deprivation remedy was available.   See id. at 94–96;  see also Aguilar, 923 S.W.2d at 744;  Murphy, 26 F.3d at 543–44.   Conely's due process claim therefore had no arguable basis in law, and the trial court properly dismissed it.   We overrule the second appellate issue.

In his first issue, Conely asserts that the trial court erroneously dismissed his retaliation claim.   Prisoners have a First Amendment right to be free from retaliation for complaining about a prison official's misconduct, and a violation of this right is actionable under 42 U.S.C. § 1983.  Woods v. Smith, 60 F.3d 1161, 1163 (5th Cir.1995).   To prevail on a section 1983 retaliation claim, an inmate must be able to establish:  (1) a specific constitutional right;  (2) the defendant's intent to retaliate against him for exercising that right;  (3) a retaliatory adverse act;  and (4) causation.   McDonald v. Stevard, 132 F.3d 225, 231 (5th Cir.1998).   Retaliation against a prisoner is actionable only if it is capable of deterring a person of ordinary firmness from further exercising his constitutional rights.  Morris v. Powell, 449 F.3d 682, 686 (5th Cir.2006), cert. denied, 549 U.S. 1038 (2006) (adopting de minimis standard in retaliation claims because it achieves proper balance between need to recognize valid retaliation claims and danger of courts “embroiling themselves in every disciplinary act that occurs in state penal institutions”).   Inconsequential actions, even if retaliatory, are not sufficient to support a retaliation claim.  Id. A retaliation claim fails if the complained-of act, though motivated by retaliatory intent, is so de minimis that it would not deter an ordinary person from further exercise of his rights.  Id.

In his brief, Conely argues that his petition set forth a chronology of events from which it could plausibly be inferred that Conely's past grievances and lawsuits caused Moore to “interfere with his religious activities or First Amendment right to freedom of religion by stopping his outgoing correspondence addressed to his religious instructor, Bill Bucholtz[,] and sending it to another person besides Bill, and stealing or trashing his biblical documents.”   The facts Conely relies on to demonstrate that Moore's conduct interfered with his religious activities are that (1) Moore informed Bucholtz that, “for material gain,” inmates with whom he corresponded removed the stamps he supplied them to use when returning biblical materials to him, (2) Moore forwarded this letter to the “head elder over the congregation” instead of to Bucholtz, and (3) as a result, Bucholtz received Conely's bible lessons and letter later than he would have if mailed to him directly.

Conely's allegations did not state how Moore's conduct, assuming it was retaliatory, prevented him from practicing his religion.   He did not claim that he was prevented from corresponding with Bucholtz, and in fact his pleadings indicate that their correspondence has continued and that the congregation has continued to send him self-addressed stamped envelopes for that purpose.   We conclude that any alleged retaliatory act was inconsequential and did not deter Conely from exercising his constitutional right to freedom of religion.   The trial court did not err in concluding that Conely did not state a valid claim for retaliation.   We overrule the first appellate issue.¹

In his third issue, Conely challenges the trial court's dismissal of his claim that Moore's conduct is actionable under the theft liability act.   See Tex. Civ. Prac. & Rem.Code Ann. § 134.001–.005. The allegations Conely relies on to support his theft claim are that (1) as a result of Moore's conduct, Bucholtz did not receive the biblical documents Conely was attempting to return to him, and (2) Moore “stole or removed a stamp for her personal use and trashed [Conely's] biblical documents.”   As an initial matter, the record indicates that the biblical documents and the stamp belonged to Bucholtz or the congregation, not to Conely.   Conely claimed to be “returning” the biblical documents to Bucholtz, and the stamp was provided by the congregation for that purpose.

Nevertheless, even assuming the documents and the stamp belonged to Conely, the trial court did not err in dismissing this claim as frivolous because Conely failed to exhaust his administrative remedies with regard to his claim that Moore stole property belonging to him.  Section 14.005(a)(1) of the civil practice and remedies code provides that an inmate who files a claim subject to the TDCJ grievance system must file an affidavit or unsworn declaration stating the date his grievance was filed and the date he received the written decision described by government code section 501.008(d).  Tex. Civ. Prac. & Rem.Code Ann. § 14.005(a);  see Tex. Gov't Code Ann. § 501.008(d) (inmate may not file claim until he receives written decision issued by highest authority provided for in grievance system or, if inmate has not received written decision, until 180th day after date grievance was filed).   If an inmate does not strictly comply with section 14.005(a), a trial court does not abuse its discretion in dismissing the claim.  Brewer v. Simental, 268 S.W.3d 763, 768 (Tex.App.—Amarillo 2009, no pet.).   The affidavit of exhaustion of administrative remedies supplied by Conely reveals that he did not file a grievance complaining of Moore's alleged theft of his property.   Rather, the grievance he filed complains only that Moore retaliated against him and interfered with his constitutional rights by redirecting his correspondence and notifying the congregation of her belief that inmates were removing stamps from self-addressed stamped envelopes the congregation had provided and then requesting postage from the TDCJ indigent program.   Nowhere in the grievance filed does Conely allege that Moore stole any property.   This allegation appears for the first time in Conely's petition.   Because Conely failed to demonstrate that he exhausted his administrative remedies with respect to his claim that Moore committed theft of his property, the trial court did not err in dismissing this claim.   We overrule Conely's third appellate issue.

In his fourth issue, Conely asserts that the trial court erred in failing “to continue [his] default judgment hearing.”   By this issue Conely contends that he was entitled to entry of a default judgment and that the trial court made a partial ruling in his favor but also stated that she would not rule until she reviewed documentation demonstrating service of citation.   Before the default judgment was signed, the defendants filed their answer.   We understand Conely to complain that the trial court should have rendered default judgment sooner, i.e., before the answers were filed.   This argument is without merit.   The trial court determined, and we agree, that Conely's claims are frivolous because they have no arguable basis in law.   A default judgment is properly granted only if the facts set out in the petition allege a cause of action for which relief may be granted.   In such a case, the default judgment conclusively establishes the defendant's liability.  Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984).   Here, because Conely's claims as alleged could not succeed as a matter of law, the trial court would have erred by granting a default judgment.   See Huynh v. Vo, No. 01–02–00295–CV, 2003 WL 1848607, at *3 (Tex.App.—Houston [1st Dist.] Apr. 10, 2003, no pet.) (mem.op.) (when plaintiff's claim could not succeed as matter of law, trial court erred in rendering judgment on claim).   Moreover, even when a district court refuses to rule on a motion for default judgment, once an answer has been filed, any complaints regarding the district court's prior failure to act are rendered moot.   See Palacios v. Rayburn, 516 S.W.2d 292, 294 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ) (plaintiff's petition for writ of mandamus against trial court judge who refused to grant default judgment against non-answering defendant was rendered moot when defendant filed answer).   We overrule Conely's fourth issue.

In his fifth issue, Conely contends that the trial court's failure to rule on pending motions was a denial of his due process rights.   Specifically, Conely claims that the trial court failed to rule on his motion for default judgment, motion for partial judgment on liability, motion to compel discovery, and motion to strike.   The trial court may rule on a motion either expressly or implicitly.   See, e.g., Tex.R.App. P. 33.1(a)(2) (for party to present complaint for appellate review, record must show that trial court either ruled on motion, expressly or implicitly, or refused to rule and complaining part objected to refusal).   Here, by granting the dispositive motion to dismiss without ordering the defendants to answer discovery, the district court implicitly denied this motion.   See In the Interest of Z.L.T., 124 S.W.3d 163, 165 (Tex.2003) (concluding that trial court implicitly denied inmate's request for bench warrant by proceeding to trial without issuing one).   The trial court's dismissal of Conely's claims likewise implicitly denied the motions for default judgment and for partial judgment on liability.   Because we conclude that the district court effectively ruled on Conely's motions, we overrule his fifth appellate issue.

CONCLUSION

Having overruled Conely's appellate issues, we affirm the trial court's judgment.

FOOTNOTES

1.  FN1. Having concluded that the trial court did not err in dismissing Conely's section 1983 claims as having no arguable basis in law, we need not address Conely's sixth appellate issue, in which he contends that he met the minimum amount-in-controversy requirement for invoking district-court jurisdiction.   See Tex. Const. art.   V, §§ 8, 19;  Tex. Gov't Code Ann. § 24.007 (West 2004 & Supp.2011).   Our disposition also renders moot Conely's seventh appellate issue, in which he contends that the trial court erred in denying his request for a declaration that Moore's conduct violated state and federal law.

J. Woodfin Jones, Chief Justice

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Rights group joins case over solitary confinement cells in CA where prisoners kept for years

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In Jackson, tourists pay for the chance to experience life behind bars

by Ellen Craeger  

Detroit Free Press Travel Writer

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About 250 guards at State Prison of Southern Michigan fired tear gas at the 1,000 prisoners.

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Visitors now get a chance to see 7 Block, part of the former State Prison of Southern Michigan. The tour of 7 Block was added last year, boosting prison tourism in Jackson. / MARCIN SZCZEPANSKI/DFP

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Judy Gail Krasnow takes visitors back in time to experience another way of life on the Jackson Historic Prison Tour. Krasnow, in front of a mural designed by Jean Weir and Hector Trujillo, hosted just 400 tourists in 2008 but had 3,200 last year. / MIKE BROOKBANK/DETROIT FREE PRESS

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Art is displayed at this studio in the historic state prison. This room would have been about two cells. / MIKE BROOKBANK/DETROIT FREE PRESS

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Some visitors come by the busload. More than 40 people from a senior center in Portage visited Wednesday. / MIKE BROOKBANK/DETROIT FREE PRESS

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JACKSON -- There's new glamour in the slammer.

Tours are booming for Michigan's most famous lockup city, with visitors coming from across the state and beyond to go on the Jackson Historic Prison Tour.

Its highlight: the infamous 7-Block at the former State Prison of Southern Michigan. It closed in 2007.

The eerie 7-Block, still part of a razor-wire enclosed campus with four other active prisons, echoes with drama. It's where Dr. Jack Kevorkian stayed when he first arrived -- cell 82, level three -- and where hundreds of men, women and children were held on a single night during the 1967 Detroit riot.

Visitors can sit in the creepy cells, smell the dank air, read the blue-cover prison rule books still attached to the cell bars and imagine life for the 515 prisoners held there.

One thing visitors can't do? Take pictures. To see 7-Block, you have to come in person.

Judy Gail Krasnow, the tour founder who worked with the state to add 7-Block as part of her historical prison tour last year, said Jackson's prisons are a potential tourism gold mine.

Her tour garnered just 400 tourists in 2008 but 3,200 last year. This year, "we already have almost 50 tours booked."

Like California's Alcatraz, Jackson has endless prison stories just waiting to be told.

"I want to raise the spirit of Jackson's prison past," Krasnow said. "It's not an embarrassment. It's history."

Artwork, cookbooks, ghosts and more turn up in tour of Jackson's old prisons

In the stark symmetry of the prison building known as 7-Block, it's easy to imagine bad things happening.

Rails are garish yellow. Bars are white. The floor is grim gray. There are windows, but the light is filtered, like at a cheap motel, so you can't see out. You go through a door into the yard; looped razor wire menaces from atop every fence.

Nobody would ever want to come here.

Except as a tourist, of course.

"I loved it. I loved the way it looked like the prisons you see on TV, but you can see it in person," said Jan Herrick of Kalamazoo. "For some reason, prisons really fascinate me."

They fascinate others, too. From West Virginia to California, prison tours are drawing crowds.

Since the Jackson Historic Prison Tour added the visit to 7-Block at the former State Prison of Southern Michigan last year, interest has spiked, said Judy Gail Krasnow, tour founder.

"People like to see the real thing. A lot of the fascination is, 'There but for the grace of God go I.' "

That said, the four-and-a-half-hour tour has to be one of the strangest prison tours -- and one of the strangest tours, period -- in the world.

You see two prisons, two art studios and the tour guide's apartment.

There are odd juxtapositions -- you eat a turkey sandwich, visit a painter in his bright studio, then go to the basement to see 19th-Century, solitary-confinement cells.

You take a bus 2 miles north to Blackman Township's prison complex and see 7-Block, which looks ancient but actually was in use until five years ago. Krasnow interviewed former warden Charles Anderson and former inmates to learn the cellblock's inside stories.

(In 1981, the Free Press' Taro Yamasaki won a Pulitzer Prize for photographing life inside the prison, including 7-Block.)

Besides the visit to 7-Block, here are tour highlights:

• Michigan's First State

Prison: All tours begin at Jackson's original prison, which operated from 1838 to 1934. It has been remodeled as the Armory Arts Village, with 62 apartments and artists studios.

In this old prison, inmates wore ball and chains on the grounds and labored in prison factories. Living conditions were primitive. In one wing, 328 men lived in tiny cells with no electricity, heat, ventilation or plumbing.

The prison had a band, a baseball team, a newspaper and a lot of interaction with the community.

"Mothers brought their daughters to get their wedding dresses made at the prison tailor shop," Krasnow said. "Prisoners made exquisite furniture."

Although Michigan abolished capital punishment in 1846, some conditions likely were worse than death.

Investigators once found that 20 men had been confined for 17 years straight in solitary confinement. When inspectors got them out, "nine couldn't talk, all were malnourished and six died right away," Krasnow said. "Everyone was thrown into solitary for two weeks to break their spirit. They didn't care if you stole a loaf of bread or murdered someone."

The chance to see the old prison appealed to Carol Vandenberg of Kalamazoo. Her grandfather, Walter Stoops, was an inmate there in the 1920s.

"I never met him, but I'd always heard there was a black sheep in the family," she said. "I couldn't pass up this trip."

• Artists' studios. Lou Cubille and Carol A. Kent welcome tourists in their studios.

• Krasnow's apartment. Her two-level apartment is the size of 36 prison cells. Yes, she has sensed ghosts in the apartment, or did until she put up a crucifix -- even though she's Jewish.

"The building is 174 years old, so if the spirits have seeped into the brick and floors, that's understandable," Krasnow said. Some of her tours are for paranormal groups.

• Old Prison Gift Shop: Opened in April, it features artwork by former prison inmates, a prison cookbook and T-shirts that say, "I spent time in Jackson (Michigan)."

Contact Ellen Creager: 313-222-6498 or ecreager@freepress.com

More Details: Want to go?

The Jackson Historic Prison Tour runs through Oct. 31 and takes participants to Michigan's First State Prison (1838-1934), now the Armory Arts Village, and 7-Block (1934-2007) at the former State Prison of Southern Michigan.

Tours last three and a half to four and a half hours, depending on the itinerary, and are by appointment only. The minimum group size is four, and no child younger than 9 will be allowed.

Tickets are $35 per person; groups of 20 or more can get discounts and a package price that includes lunch.

For more information, go to www.historicprisontours .com or call 517-795-2112.

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Struggle for prison health care enters new phase

by Marilyn Bechtel

May 9, 2012

A new phase opened May 7 in the long-running struggle to provide adequate health care for California prison inmates and to end conditions a federal judge said in 2005 were leading to the unnecessary death of one inmate a week.

The State of California, the attorneys who brought the lawsuit on behalf of prison inmates, and the receiver now in charge of prison health care filed a joint report in court this week, setting forth their differing - in some cases opposing - views on how to end the receivership while assuring adequate treatment for the state's current inmates.

The state claims prison health care has been "totally transformed," with a "well-qualified" staff, new or improved facilities, and a lower inmate population than when the receivership was ordered. It wants the court to end the receivership in 30 days, with a monitor observing progress for another year.

Last month California unveiled a comprehensive plan on how to ensure "a quality medical care system for years to come."

But attorneys for the inmates say that while conditions have improved, big health care problems remain at many prisons, and the state hasn't shown it can continue to improve things if the receivership is lifted. They also contend California is refusing to cut the prison population to the court-ordered number, and has not yet done needed upgrades to prison medical facilities.

"There are still problems at many prisons, with getting timely access to a physician and timely access to their medications that they need," Prison Law Office attorney Donald Spector, the lead attorney in the case, told southern California public radio station KPCC.

Spector said one of the biggest improvements to date has been getting rid of incompetent medical staff and bringing in more, and better qualified, professionals. 

However, federal receiver J. Clark Kelso said some newer staff members have quit because of inadequate clinic facilities and other ongoing problems.

Kelso says the receivership should last until the inmate population is lowered to the court-ordered number, and more progress is made on building new medical facilities.

The struggle has a long history. Class action suits charging inadequate care date back to 1990 and 2001.

In 2005, after U.S. District Judge Thelton Henderson found that an average of one inmate a week was dying because of inadequate health care, he ordered the prison health care system into receivership.

In 2009, a federal three-judge panel including Judge Henderson said prison health care in California's greatly overcrowded prisons amounted to cruel and unusual punishment, and ordered the state to cut the prison population by more than a quarter over a two-year period.

The state appealed to the U.S. Supreme Court, which ruled a year ago that the prison population must indeed be cut.

Among factors contributing to California's soaring prison population, observers point to Prop. 184, the "three strikes and you're out" ballot measure passed in 1994, which imposes minimum sentences of 25 years to life for three-time repeat offenders with previous serious or violent felony convictions.

But the California Legislative Analyst's Office says only about 37 percent of those sentenced under three strikes were convicted of crimes against persons, while over half were convicted of property or drug crimes.

Advocates for sentencing reform point to the large numbers of African Americans and Latinos who are incarcerated for minor offenses including drug violations, and parolees who are sent back to prison for minor technical parole violations.

A ballot initiative to limit three-strikes sentencing to cases where the third offense, or a prior offense, is serious or violent is now undergoing signature verification, and may be on the November ballot.

Photo: Derek Key // CC 2.0

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Sacramento County signs off on settlement to allow distribution of jail publication

Denny Walsh

A federal judge signed off Monday on the settlement of a lawsuit that will cost Sacramento County taxpayers $300,000 because the Sheriff's Department was not allowing distribution to inmates of a legal publication designed for prisoners.

The county has agreed to pay that amount to Prison Legal News within 60 days.

In addition, the monthly journal will be delivered to inmate subscribers at the Main Jail and Rio Cosumnes Correctional Center. The department, however, will remove staples that bind the magazines and the address labels before delivery.

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Sexual Exploitation of Female Offenders

By Caterina Spinaris Tudor , Ph.D.

Published: 07/23/2012

There was yet another mention in the press recently about the systematic and prolonged sexual exploitation of female inmates by male corrections staff. The description of the inmates’ helplessness and victimization was almost too painful for me to read. A question kept ringing in my ears, a question posed by corrections officials nationwide who are baffled as to why corrections workers would risk going to prison just to get some sexual gratification from offenders. Given the Prison Rape Elimination Act of 2003 (http://nicic.gov/PREA), staff who sexually assault offenders are subject to felony criminal charges punishable by prison sentences of their own and/or fines, as well as discipline by their corrections agency. However, those dire consequences do not seem to be sufficient to deter some corrections employees who contemplate engaging in sex acts with offenders. Why might this be so? One way to understand this issue may result from understanding what has been called “sexual addiction” or sexual obsessive/compulsive behavior. As you read this, please keep in mind that I am not suggesting that this condition exists in correctional employees to a greater extent than in the rest of society. However, even if the rate of sex addiction only matches the frequency in society as a whole, the consequences can be disastrous. A potentially perilous situation results when sex addiction is combined with the control that correctional employees have over offenders and with the domestic environment that institutional life presents. The Society for the Advancement of Sexual Health (http://sash.net/) defines sexual addiction as a persistent and escalating pattern (or patterns) of sexual behaviors engaged in despite increasingly negative consequences to self or others. Sexual addiction is estimated to affect three to six percent of adults in the United States. If that is the case, what might be the number of corrections personnel who are battling sex addiction at your facility and your agency? Selective recruitment and mandatory professional training are designed to eliminate or reform “bad apples,” but all addictions tend to be resilient and to remain carefully hidden until exposed by a dramatic event. Sex addiction is no different. Sex addicts pursue unhealthy, destructive sexual relationships or behaviors, and they are willing to run the risk of paying just about any price for a temporary sexual “high” of their preference. It is hypothesized that in the case of sex addiction certain types of sexual behavior become mood altering, an antidepressant or tranquilizer of sorts, a means for the addicts to create good feelings about themselves. Obsessive/compulsive sexual pursuit takes a variety of forms. In a way, the only limit is imposed by the sex addict’s imagination. Sexual addictive behaviors may start at low levels of risk and within the bounds of “normal” sexual behavior. Somewhere along the way however, the pursuit of sexual gratification, at times in ritualistic ways, starts assuming a life of its own. The obsessive thoughts or compulsive behaviors start dictating the decisions in a person’s life. The focus becomes the gratification of sexual urges. That goal becomes all-consuming, with the addicts organizing their lives around ways to satisfy the demands of their addiction one more time—and again, and again. Sexual addiction, like other addictions, tends to follow a progressive path, as the addicts may get used to the “jolt” they receive from a certain behavior and pursue riskier behaviors to enjoy desired levels of excitement. The rush received from these high-risk behaviors is obviously short-lived and so the addict has to re-engage compulsively in increasingly destructive behaviors. This means that “close calls” that may frequently happen in a supervised setting like a correctional institution could have the unintended effect of increasing the risk of the next occurrence thereby enhancing the excitement, and strengthening the addiction. At more severe stages of sex addiction people may indeed feel like they have lost control of their lives, that they are a car with no brakes careening down a mountain under icy conditions. Some sex addicts may experience an inner struggle, as their conscience clearly tells them that their behavior violates their most cherished values and principles. They may try to escape their sexual obsessing or resist their sexual compulsion until the internal pressure builds to the point where they give in to their urges and engage in their sexual behavior of preference regardless of likely consequences. These individuals experience severe stress in relation to their sexual acting out due to knowing their guilt, and due to experiencing shame for their behavior and fear of getting caught. Other sex addicts do not experience much of a moral struggle, however. Lacking empathy, they view others as objects to be used for their gratification with no regard for the other party’s needs or rights. They may even convince themselves that their sexual targets want, invite or enjoy these sexual behaviors. Sometimes entwined with the sexual gratification is a complex and unhealthy emotional entanglement, often with the sex addict being in control of the relationship. What characterizes these relationships is the inability to be truly oneself and truly vulnerable and intimate with their partners. Corrections settings provide an open season type of environment for certain types of sex addicts, like a playground would for a pedophile. Incarcerated offenders are literally captive prey for corrections employees who may be already struggling with obsessive/compulsive sexual behaviors, or who are looking for a mood “fix” through a sexual “fix.” The staff spend the majority of their waking hours where offenders live, so professional boundary erosion over time and the eventual boundary collapse take place all too painfully often. The presence of Corrections Fatigue may also contribute to the dehumanization of offenders in the eyes of staff. Such dehumanization takes such employees one step closer to making excuses for their actions or even justifying their behavior through a sense of entitlement or the rationalization that “she really wanted it.” Being in absolute control, seemingly all-powerful in their own eyes, can fuel the flames of lust for some corrections employees in the throes of sex addiction. In other cases current life stressors may seem unbearable to staff, who may engage in a seduction/sexual escapade with an offender as a thrilling diversion. However, in my opinion patterns of repeated sexual abuses speak more of predatory sex addiction (ways to get a “fix”) than attempts to temporarily escape circumstantial distress. Over time, sex-addicted staff may engage in sexual behaviors of increasingly higher aggression, boldness and risk. They might employ threats, blackmail and bribes of alcohol and other drugs. Consequently, the security risk increases accordingly. As sexual addiction takes hold of the life of the addicts, all—and I mean ALL—is surrendered at the altar of their very cruel sex addiction god. Relationships, family, health, reputation, finances, job and even freedom are risked and at times sacrificed to that destructive god. What can a person do if they come to see that they are in reality just as much prey as they are predator? Acknowledging their predicament and owning their urges and behavior is the first step. The second step involves removing themselves from environments where they are likely to engage in or re-enact damaging and illegal sexual fantasies and behaviors, or making arrangements so they cannot employ such behaviors. They need to stop making more victims immediately and make themselves accountable to someone who can hold them accountable. The third step is seeking help for themselves. Getting help, no matter how much it may cost, is an infinitely better alternative than facing disgrace, prison time or suicide as a way out. There are many ways and places that provide help for people who admit to their sexual addiction. There are information sites, such as The Society for the Advancement of Sexual Health mentioned above, self-help organizations such as Sex Addicts Anonymous (http://saa-recovery.org/); Sexaholics Anonymous (http://sa.org/), and Sex and Love Addicts Anonymous (http://www.slaafws.org/). There are also self-help groups for partners of sexual addicts. Treatment centers exist across the country (e.g., http://pinegrovetreatment.com ), and many mental health providers specialize in the treatment of sexual obsession and compulsivity. There are two foundational keys to healing and recovery. The first key is self-honesty. The second key is a sincere and intense desire to eliminate unhealthy sexual behavior and replace it with healthy relationships characterized by authenticity and genuine intimacy. If you see some of the warning signs in your own behavior with offenders, take action as early as you can. Don’t let the false belief (delusion, really) that “I just have to be careful and I won’t get caught” cloud your judgment. The addiction cycle is working against you. “Being careful” is a diminishing boundary. The greater the risk, the greater the thrill, the greater the likelihood it will happen again and at a riskier level, and so the greater the chance that you will get found out. Realize that, admit it, get help, and STOP. Permitting an employee who has been involved in events of this type to come forward and ask for a way out of their self-designed trap may seem impossible or unacceptable. Sexual misconduct with offenders is one of the cardinal sins of correctional work. This stacks the entire culture against the employee who may want to come forward in order to take responsibility for his/her actions and seek help. Additionally, the employee may be admitting to a felony that will change his or her life forever. The resistance to self-reporting is understandable. However we have to help increase the likelihood that self-reporting will take place as early as possible along the slippery slope. We need to have mechanisms in place to reduce the damage or prevent more of it from occurring elsewhere. And since those of you in the profession are held accountable by the public for the actions of these few who cross the line, it is to your advantage as well to help set up conditions that facilitate self-reporting—the earlier the better. I present these ideas not to imply a widespread condition that might, if taken out of context, risk besmirching the reputation of an important team of public safety employees whose skill, motivation and courage are on display every minute of every day of the year. Rather this article was written in order to discuss an issue that is very difficult for all of us and which has caused many much hurt and much damage over the years. Self-honesty starts with self-reflection, and that is what we want to promote. As sex addicts risked all for the satisfaction of their sexual urges, now they must risk all for their recovery. The alternative is unspeakably tragic and costly for the sex addict and for those affected by their actions. Gregory Morton contributed to this article by weaving the technical aspects of the subject into an understanding of their implications in the correctional environment. Corrections.com author, Caterina Spinaris Tudor, is the Executive Director of Desert Waters Correctional Outreach (DWCO, www.desertwaters.com) and a Licensed Professional Counselor in the State of Colorado. She works with correctional employees and their families, addressing the unique demands of the correctional workplace and its toll on staff and families. The mission of DWCO is to increase the occupational, personal, and family well-being of staff of all disciplines within the corrections profession. Visit the Caterina Tudor page

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State sued over prison conditions

by Bruce Rushton

Conditions at Vienna Correctional Center are something out of a Dickens novel, judging by a stomach-churning lawsuit filed earlier this month by inmates who say they live with filth, vermin and a paucity of bathrooms.

A lawyer for inmates says that prisoners at Vienna and Vandalia Correctional Center, which could be the next legal target, are living in poorer conditions than inmates in California, which has been ordered to reduce overcrowding by a federal judge.

“We are worse than California,” says Alan Mills, legal director for the Uptown People’s Law Center in Chicago, which sued the state in federal court on June 13. “California is putting people in gymnasiums. But, to my knowledge, they are not putting people into basements or storage rooms.”

In addition to suing the state over conditions at Vienna Correctional Center, the Uptown People’s Law Center is considering a lawsuit over conditions at Vandalia Correctional Center, where minimum security inmates are held, Mills said. If the state doesn’t settle, lawsuits could take years to resolve, he said.

It is, Mills said, a matter of math. The inmate population has increased by 10 percent during the past two years while the state prison budget has decreased by 15 percent, he said. There is some hope in recently passed legislation that reinstitutes an early-release program for inmates who behave themselves, Mills said.

The legislature also appropriated $26 million to keep the Tamms supermax prison open. Gov. Pat Quinn says that he will close it nonetheless, and if the money is spent to expand a minimum security work camp next to the supermax, intolerable conditions might improve, Mills said.

Stacey Solano, Illinois Department of Corrections spokeswoman, said the department doesn’t comment on pending lawsuits, but health, safety and security of inmates and staff is the department’s top priority. She confirmed that Tamms will be closed, but declined to say how the department might spend money appropriated to keep the supermax open.
In the meantime, inmates are living in squalor, according to the class-action lawsuit filed on June 13 in federal court.

Nearly 1,900 prisoners are living in Vienna Correctional Center, which was built to hold 925 inmates, according to the lawsuit. While state law requires each inmate to have at least 50 square feet in cells or dormitories, inmates at Vienna have 33 square feet or less, the plaintiffs say. Inmates get three hours or less of exercise time each week, and much of their time is spent on bunks crammed 18 inches apart, so close that a prisoner can reach out and touch the person sleeping next to them.

Rather than fix broken windows, the state has boarded them up, depriving inmates of natural light and fresh air. Mice, rats, millipedes, cockroaches and other vermin run free, and food contains rodent feces and mold, according to the plaintiffs.

“Prisoners find cockroaches in their coffee cups, drinking glasses and toothbrushes and feel cockroaches crawl across them while they lie in their bunks,” the plaintiffs say. “The men often have to physically sweep cockroaches off of their mattresses and remove cockroach feces from their pillows and clothing.”

A converted administration building that is home to 600 inmates has seven toilets, two urinals, seven sinks and seven showers.

“To make matters worse, some of these toilets and sinks often do not function or drain properly due to leaking or clogged pipes,” the plaintiffs say. “Rust-colored water comes out of these few sinks, which the prisoners use to brush their teeth, wash their faces and ‘clean’ their dishes. Broken toilets are left filled with feces, sometimes for weeks.”

Mold is rampant.

“It grows along the walls and ceilings, in the light fixtures, around the sinks and drinking fountains, in the showers and behind the toilets,” the plaintiffs say. “The mold on the ceiling and in the showers sometimes grows so thick that it breaks off and falls on the prisoners while they are sleeping in their bunks or showering.”

Just five guards watch over the 600 inmates who live in the converted administration building.

“Because there are so many prisoners and so few officers, the officers are frequently unaware of the fights that occur in the dormitories and when the officers are aware, they often let the inmates fight it out, intervening only after the fight is finished in order to issue disciplinary citations,” plaintiffs say.

The conditions described in the lawsuit are confirmed in a report by the John Howard Association, a Chicago-based prison reform group that visited the prison last fall. The visitors smelled sewage and found inmates dodging rust-colored water that dripped from bathroom ceilings. Prisoners said they were given just five minutes to eat meals. Hundreds of inmates with nothing to do simply paced or huddled around a small television.

“A Vienna staff member seemed to recognize the stunned look on our faces,” the report’s author wrote. “‘This is a nightmare,’ he said quietly to one of JHA’s staff. ‘This should not be.’”

Contact Bruce Rushton at brushton@illinoistimes.com.

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