Claim: This case seeks to reduce the incarcerated population to a level that would allow for appropriate physical distancing in eating, sleeping, and recreation. Additionally, this lawsuit also pushes for the prohibition of confining anyone who has been civilly committed for alcohol and substance use treatment in correctional facilities.

Current Status:

On April 17, 2020, PLS filed a class action complaint, Foster v. Mici, and an emergency motion for a preliminary injunction seeking release for incarcerated people throughout the Commonwealth due to the COVID-19 pandemic. PLS’ emergency motion asked the court to order the defendants (Governor Charlie Baker, Commissioner Carol Mici, Secretary of the Executive Office of Public Safety Thomas Turco, and Parole Board Chairperson Gloriann Moroney) to use their authority to reduce the incarcerated population to a level that would allow for appropriate physical distancing in sleeping, eating, and recreation. In a separate claim, PLS also asked the court to prohibit the defendants from confining in a correctional facility any individual who has been civilly committed for alcohol and substance use treatment pursuant to G. L. c. 123, § 35. On April 20, 2020, the single justice reserved and reported the case to the full court, but also referred the matter to the Superior Court for expeditious fact-finding. On April 27-April 29th, the Judge Robert Ullman conducted an evidentiary hearing and issued findings of fact on May 1st. The SJC then ordered plaintiffs to respond to motions to dismiss filed by the Parole Board and the Governor by May 4th and file briefs on the main case by May 6th with argument on May 7th. Unfortunately, on June 2nd, 2020, the SJC denied plaintiffs’ motion for an emergency preliminary injunction. Although the court recognized that, due to the COVID-19 pandemic, the situation inside the Commonwealth’s jails and prisons “is urgent and unprecedented, and that a reduction in the number of people who are held in custody is necessary,” it concluded that plaintiffs had not established, at least at this point in time, that DOC’s efforts to address the COVID-19 emergency are constitutionally inadequate.

Despite the denial of emergency relief, the case was far from over. The SJC expressed concerns that the lockdown conditions DOC has put in place to respond to the pandemic, including isolation, reduced access to medical and mental health care, deprivation of outdoor exercise, and the cancelling of activities and visitation may themselves become Eighth Amendment violations. Accordingly, the SJC transferred the case to the Superior Court with instructions that it “shall proceed as an emergency matter, with due speed in consideration of the circumstances.”

The SJC also ruled that a person cannot be civilly committed to a correctional facility under Section 35 for substance use treatment unless the judge makes a finding that: (1) “the danger posed by the individual’s substance use disorder outweighs the risk of transmission of COVID-19 in congregate settings”; and (2) “commitment is necessary notwithstanding the treatment limitations imposed by quarantine protocols.”

PLS filed a motion for class certification which was granted by the Superior Court on November 11, 2020. We then filed an emergency motion asking the court to order DOC to implement a home confinement program. The court denied this motion on December 18, 2020, in part because DOC reported that it was going to implement a home confinement program.

In light of major outbreaks of COVID 19 at MCI Norfolk, and several other facilities, PLS filed a second motion for a preliminary injunction on December 23, 2020, asking the court to order DOC to put into place other appropriate release mechanism to reduce the DOC population to a level where social distancing is possible. In January of 2021, we supplemented our motion with a claim that DOC was not in compliance with the decarceration law enacted by the Legislature as part of the budget. On February 17, 2021, the court denied this motion, ruling that the protective measures DOC had put in place meant it was not deliberately indifferent to the health and safety of people in custody. The court did not rule on our claims based on violations of the decarceration law, but allowed us to amend the complaint to assert that claim.

We appealed the denial of our renewed motion for a preliminary injunction to the single justice, who referred it to a panel of the Appeals Court. The SJC then granted our motion for direct appellate review. But on November 18, 2021, the SJC rejected our argument that the DOC’s failure to release people to allow for greater social distancing constituted deliberate indifference to prisoners’ constitutional right to health and safety. The Court held that Commissioner Mici’s efforts to control the virus without releasing people were adequate, particularly in light of vaccines.

On a somewhat more hopeful note, the Court chose not to rule on our separate claim that the DOC’s failure to consider releasing prisoners violates the provisions of the Decarceration law, which requires the DOC to use or consider using various release mechanisms to reduce the prison population, consistent with public safety.. These provisions have now been enacted twice by the Legislature, both times over the Governor’s veto. On February 3, 2022, PLS filed a motion for summary judgment on its claim that DOC is in violation of the Decarceration law. The defendants have also moved for summary judgment and argument was held on July 13th, 2022 before Judge Connolly.

This is a class action challenge to solitary confinement practices at the Bristol County House of Correction and Jail. We are co-counsel with the Mental Health Legal Advisor’s Committee. The complaint was filed on January 9, 2018, on behalf of all those incarcerated at Bristol who have a mental illness. Plaintiffs challenge:

• the failure to exclude those with mental illness from segregation;
• the failure to take mental illness into account in the disciplinary process;
• and to provide adequate mental health care, particularly to prisoners in segregation.

As a result, the suicide rate in Bristol County is alarmingly high, twice that of other Massachusetts county correctional facilities and three times the suicide rate for jails nationally. On September 28, 2018, the court denied the Sheriff’s Motion to Dismiss, rejecting his argument that the solitary confinement provisions in the criminal justice reform legislation enacted in April make the case moot. On April 24, 2019, the court allowed the Plaintiffs’ motion for class certification, which was supported by detailed affidavits from prisoners and a declaration from our expert psychiatrist. The parties have agreed to stay discovery because productive settlement discussions are ongoing.

This class action was filed on December 2015 on behalf of individuals with hearing impairments who allege that the DOC discriminates against them in virtually all aspects of prison life. Specifically, DOC (1) failing to provide access to auxiliary aids and services, such as hearing aids or ASL interpreters, necessary to permit access to educational, vocational, and rehabilitative programming, medical and mental health care, and religious services; (2) denies deaf and hard of hearing individuals adequate, equally effective, and reliable means of communication with individuals outside of prison by failing to provide videophones or other assistive technology; (3) places deaf and hard of hearing individuals at serious risk of harm by not having an adequate emergency notification system; (4) failing to provide adequate interpretative services and auxiliary aids at disciplinary and classification hearings and (5) discriminating against deaf and hard of hearing individuals in work assignments. We are co-counseling with Wilmer Hale and the Washington DC Lawyers’ Committee for Civil Rights. Settlement discussions have not proved fruitful and we are proceeding with discovery. The Court denied our motion for class certification without prejudice, but allowed discovery to proceed on a class-wide basis. Discovery is now complete and the parties have also agreed to mediation before Magistrate Kelley. On June 22, 2018, plaintiffs reached a settlement agreement with the Medical Defendants, resulting in class members receiving access to ASL interpreters for medical appointments and hearing aids that had been previously denied. DOC has also installed videophones to allow deaf individuals to make telephone calls to friends, family, and attorneys. After extensive discovery, we entered into a settlement agreement with the Defendants that was approved by Judge O’Toole on November 6, 2019. We are now monitoring compliance with the agreement. The settlement agreement left unresolved, however, the issue of emergency notification systems, including the need for visual alarms. The Defendants have filed a motion for summary judgment on that issue and we filed our opposition on January 28, 2020, along with various motions seeking to strike affidavits submitted by DOC.

Although the monitor has produced a report based on the documents showing many areas of non-compliance, monitoring site inspections were placed on hold because of the COVID-19 emergency. In light of COVID delays, the parties have filed a joint motion asking the court to extend the monitoring period.

There have been three site visits by the monitor, the most recent being November 29 and 30 of 2021. Although DOC has remedied some problems, others persist and new issues have emerged, particularly with the Captioned telephones. In addition, the settlement agreement left unresolved the issue of emergency notification systems, including the need for visual alarms. The court denied DOC’s motion for summary judgment on the adequacy of its emergency notification system, we have completed supplementary discovery on that issue and are now preparing for trial on that matter.

In January 2022, on the second anniversary of the events challenged in the lawsuit, PLS and the law firm Hogan Lovells filed a class-action complaint, against the Massachusetts Department of Correction and the officials responsible for overseeing Souza-Baranowski Correctional Center during a campaign of systematic, extreme, and unconstitutional violence against more than a hundred prisoners. The lawsuit highlights that brutality is not perpetuated by a few “bad apples” but a broken system that not only fails to rehabilitate prisoners, but actively harms them physically and psychologically. The continual lack of oversight and accountability in carceral settings is enabled by an unacceptable degree of tolerance of state violence, particularly towards Black and Brown people. Challenging the mistreatment of prisoners is not only a fight against the DOC – it is a struggle against the systemic racism that is so deeply ingrained in our society. On March 25th The Defendants’ filed their Answer. On June 14, 2022, the case was reassigned from Judge Hillman to Judge Alison Burroughs, and on June 29th we submitted a proposed scheduling order.

This is a case for damages and injunctive relief brought by a 52-year-old  pre-trial detainee with severe mental illness and cognitive disabilities who suffered physical and emotional injury as a result of an assault by correctional officers at Souza-Baranowski Correctional Center.  Mr. Converse was on a Mental Health Watch because of severe self-injurious behavior when correctional officers sprayed a chemical agent into his cell and physically attacked him, breaking his shoulder in several places.  In addition to claims that the use of excessive force violated Mr. Converse’s constitutional rights, the complaint alleges violations of the Americans with Disabilities Act because DOC policies allow the use of force on those who are not capable of complying with orders,  fail to require mental health clinicians determine whether the use of force is contraindicated or whether alternative interventions might be effective, and do not allow for reasonable modification to DOC’s standard use of force procedures and techniques to take into account the unique vulnerabilities of incarcerated individuals with mental health and cognitive disabilities.  Mr. Converse has been released and discovery is complete. The Defendants have filed for summary judgment and argument will be held on August 18, 2022.

This is an action seeking monetary damages and declaratory and injunctive relief on behalf of a client found incompetent to stand trial and committed to Bridgewater State Hospital.  His legal guardian is the plaintiff. The client suffers from an advanced incurable degenerative brain disorder, which significantly impairs his physical, cognitive, and behavioral functioning. Since his arrival at BSH, he has spent more than 14,900 hours in seclusion in BSH’s Intensive Treatment (ITU) – his longest period of continuous seclusion in the ITU lasted a staggering 445 days – and he has been subjected to additional seclusion in the BSH Maximum Security Units on so-called Special Treatment Status. We claim that Defendants have subjected the client to prolonged isolation in non-emergency situations, sensory deprivation, and inhumane treatment and, at the same time, failed and continue to fail to provide him with appropriate medical treatment and therapies in keeping with the standard of care for this disease. These actions violate his rights under the Massachusetts Restraint law as well as his constitutionally protected right to be free from undue restraints and unsafe treatment, his right to be free from discrimination on the basis of his disability, and his right to adequate health care.  On June 9, 2017, the Court allowed our motion to exclude defendant MPCH from the medical malpractice tribunal. On June 26, 2017, the court denied in part and allowed in part, the DOC defendants’ motion to dismiss, but our core claims survived.  Mr. Doe was transferred from Bridgewater to Tewksbury State Hospital in May of 2017, where he is doing well.    On May 14, 2018, a medical malpractice tribunal ruled in favor of the plaintiff.  After mediation on September 25, 2018, we reached a significant settlement with all parties, including $290,000 to be paid by the DOC defendants.  The agreement with the DOC defendants is contingent on approval by the court of the settlement agreement of the Minich II class action  (described below) raising similar issues regarding seclusion and restraint.  The court gave preliminary approval to that settlement at a hearing on  February 11, 2020, and we have served a motion for final approval.

We filed this class action on March 14, 2019. Plaintiffs are incarcerated in a prison (called the Massachusetts Alcohol and Treatment Center or MASAC) operated by the Department of Correction (DOC) who have been civilly committed to correctional facilities under Massachusetts General Laws Chapter 123, Section 35 (“Section 35”). They have not been convicted or even charged with any crime, but are imprisoned solely because they need inpatient treatment for an alcohol or substance use disorder. Every year, Massachusetts incarcerates about 2,000 men under Section 35 either at MASAC or the Hampden County Correctional facility.

The legal claims are

1. Incarcerating civilly-committed men but not women constitutes gender discrimination in violation of the 14^th Amendment to the U.S. Constitution, the Massachusetts Declaration of Rights, and the Massachusetts Equal Rights Act.  Under Section 35, men who need inpatient treatment for alcohol or substance use disorder go to prison, while women receive treatment in secure treatment facilities in the community.
2. Civil commitment to a correctional institution for treatment of a medical condition constitutes unlawful disability discrimination in violation of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Article 114 of the Massachusetts Declaration of Rights.  By subjecting men to stigma and punishment instead of treatment, Section 35 perpetuates unwarranted negative stereotypes, and reinforces the perception that they are second-class citizens unworthy of bona-fide treatment. 
3. Civil commitment to a prison  violates the substantive due process provisions of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Articles 1, 10, and 12 of the Massachusetts Declaration of Rights. Plaintiffs’ unnecessary incarceration in a prison, rather than in an appropriate treatment facility, represents a substantial departure from accepted professional judgment, practice, and standards.  Their confinement in a traumatic and counter-therapeutic environment sabotages the possibility of recovery and bears no reasonable relation to the purpose of Section 35.  

The suit seeks a declaratory judgment that Plaintiffs’ incarceration violates the constitutional and statutory provisions referred to above, and a permanent injunction prohibiting the civil commitments under Section 35 to a correctional facility. The Complaint names as Defendants the Superintendent o, the Commissioner of Corrections, the Department of Correction, the Commissioner of Public Health, the Department of Public Health, the Secretary of the Executive Office of Public Safety and Security, and the Secretary of the Executive Office of Health and Human Services.

On July 2, 2019, the court allowed the plaintiffs’ motion for class certification and we are proceeding with discovery. We have also had settlement discussions with the Defendants based on changes DOC has made to MASAC, including turning all day-to-day operations over to the clinical provider and removing all correctional officers from inside the facility. Although these changes are welcome, it is still a correctional facility with DOC still having ultimate authority, and settlement is therefore unlikely.

Goodwin Proctor is co-counsel the case with us. We have filed two amended complaints describing the changes at MASAC and adding plaintiffs at Hampden County correctional facility, and the Court has certified the case as a class action.

In March of 2021, the Defendants filed a motion for Partial Judgment on the Pleadings seeking a ruling that Section 35 is not unlawful on its face because a correctional facility such as MASAC could at least theoretically be run as a treatment facility. Plaintiffs opposed this motion on grounds that confinement in a correctional facility for treatment of a disease is inherently stigmatizing and discriminatory. On December 29, 2021, the court issued a rather odd decision holding that Section 35 is not facially unconstitutional, but only because there would be no need for confinement in a correctional facility if DPH created enough treatment facility beds. Since our position is that only the portion of the statute that allows for incarceration is unconstitutional, we agree with that reasoning. Defendants, however, asked the Court to report the case to the Supreme Judicial Court, but that motion was denied. Meanwhile, we are proceeding with discovery and expect a trial in 2023.

Along with the ACLU of Massachusetts and Northampton attorney Luke Ryan, PLS represents the family of Madelyn Linsenmeir, who died while in the custody of the Hampden County Sheriff’s Department on October 7, 2018. Her death received national attention after her family published a heart-rending obituary online describing Ms. Linsenmeir’s struggles with opioid addiction. Ms. Linsenmeir was arrested in Springfield on September 29, then transferred to the Hampden County women’s facility in Chicopee; she was rushed to the hospital on October 4 with what proved to be a fatal heart infection. PLS became involved when the sheriff’s department initially refused to allow Ms. Linsenmeir’s family to visit her as she lay dying in the hospital. After her death, Ms. Linsenmeir’s family engaged PLS and co-counsel to investigate the circumstances leading to her death. We have obtained public records from the sheriff’s department and from the Springfield Police Department, although the latter provided records only after we filed a public records lawsuit. That case remains open in Hampden County Superior Court pending resolution of our claim for attorney’s fees under the recently amended public records law. We filed the Complaint alleging wrongful death and constitutional violations on March 5, 2020. The Defendants have filed a motion to dismiss, which was argued on August 3, 2020. On May 5, 2021, the court denied the Defendants’ motion. Discovery is proceeding.

These two cases were filed originally by pro se prisoners to challenge new DOC visiting regulations that went into effect on March 23, 2018, and which require that all visitors be on a pre-approved visitation list. PLS filed amended complaints in July challenging several specific provisions of the regulations: (1) DOC has capped the number of visitors that each prisoner may receive and has tiered the caps by security level, with prisoners in maximum security facilities only permitted 5 visitors, medium only 8 and minimum only 10; (2) DOC is only permitting prisoners’ to update their visitation lists twice per year; (3) visitors are only permitted to see one prisoner facility-wide, and (4) the pre-authorization process is unduly burdensome, intimidating, and has made prisoners’ family members fearful for the security of their personal information. DOC has now become one of the most restrictive states in the country with regard to visitation. The visitation caps punish prisoners who have maintained robust community connections vital to rehabilitation and re-entry and bar numerous visitors without any reasonable justification. Plaintiffs contend that the restrictions violate constitutional and Massachusetts law because they unreasonably limit visitation without any rational basis, and are arbitrary and capricious. All cases challenging these regulations have been consolidated in Suffolk county. On June 17, 2019, the court denied the Defendants motion to dismiss. Discovery was completed on March 1, 2022, and the parties intend to file for summary judgment.

This is an action for damages and declaratory relief brought by the three named plaintiffs in the class-action case that challenged the excessive and abusive use of seclusion and restraint at Bridgewater State Hospital, which uses these techniques 100 times more frequently than any other psychiatric hospital in the country.    On May 12, 2016, the court denied Defendants’ Motion to Dismiss in a groundbreaking decision stating that Bridgewater patients had stated a claim that their abysmal treatment and confinement under conditions more onerous than those in DMH hospitals violated the Americans with Disabilities Act, the Massachusetts Restraint Law, as well as their due process rights under the Federal Constitution.  We are co-counseling with Eric MacLeish of Clark, Hunt, Ahern & Embry.   After mediation on September 25, 2018, we have agreed to a settlement of $1.5 million dollars for the class members, contingent on the approval of the court and the Legislature. The court approved the Settlement in January of 2021, and the Legislature appropriated the necessary funding in October. On January 9, 2022, we distributed the Settlement awards, ranging from $3,000 to $80,000 to class members who had filed claims.

This class action case, which was filed in May of 2018, is an outgrowth of the Petition we filed with the Massachusetts Department of Telecommunications and Cable challenging exorbitant prison phone rates.  PLS is co-counseling with the National Consumer Law Center, the Harvard’s Legal Services Center and Bailey Glaser, LLP.  The complaint alleges that the kickback received by Bristol County Sheriff Hodgson from the prison phone company, Securus, is illegal under state law.  The kickback effectively doubles the cost of phone calls for prison families and other consumers.  If successful, this case will not only impact prisoners held at the Bristol county jail, but at all county facilities in Massachusetts that contract with Securus Technologies, and perhaps the DOC as well. In addition, it will significantly lower prison phones rates and return millions of dollars to the families and friends of prisoners who have paid these exorbitant phone rates over the last four years.

The case was removed to federal court by Securus Technologies and a hearing was held on October 23, 2018 on the Defendants’ Motions to Dismiss.  On December 20, 2019, Judge Talwini denied both Sheriff Hodgson’s and Securus’ Motion to Dismiss, in any opinion strongly suggesting that the commissions are unlawful.  Discovery is now underway.  Defendants have filed a motion for judgment on the pleadings, and on July 26, 2019, we filed a motion for partial summary judgment and a motion for class certification.  The court scheduled a hearing on these motions for March 23, 2020, but then cancelled the hearing because of COVID-19.  The court rescheduled the hearing for June 11.  At the hearing, she asked the parties to address the significance of G.L.c. 127, § 3, which both parties stated was not pertinent to the claim.  However, on June 22, 2020, she held that the Sheriff does have the authority to charge telephone commissions, relying largely on the language in Section 3 relating to the sale of goods and services to prisoners that even the Defendant had rejected and that neither party had briefed. On July 20, we filed a motion to amend the judgment, and also asked her to certify the issue to the Supreme Judicial Court. On March 31, 2021, the Court allowed our motion and certified the question to the SJC. Unfortunately, on May 17, 2022, although it rejected the Section 3 argument, the SJC ruled that a special law transferring county government to the state implicitly authorized counties to collect and retain telephone fees. Although this is an extremely disappointing decision, we are optimistic that the Legislature will pass some version of the No-Cost Calls law that has been included in both the Senate and House FY23 budget.