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Allegedly beaten and sent to isolation after epileptic seizure, a Florida prisoner sues

Miami Herald - 8/22/2019

Aug. 22--Last September, a 28-year-old autistic man experienced an epileptic seizure at Desoto Correctional Institution, about 50 miles north of Fort Myers. Instead of receiving prompt medical care, he alleges he was beaten by corrections officers, then placed in isolation for the balance of his two-year sentence.

Dean Higgins is now suing the Florida Department of Corrections and the officers involved in the attack alleging cruel and unusual punishment, violation of the Americans with Disabilities Act, use of excessive force and battery. It is the latest in a flurry of suits involving the prison system and inmates with disabilities, despite a lawsuit settlement two years back that purported to improve the treatment of prisoners with mental and physical frailties.

The lawsuit says after the confrontation he was held in a six-by-eight-foot room with concrete walls, where "raw sewage would seep into Higgins' cell, at times a number of inches deep." Higgins claims that cell conditions made sleeping difficult and that he was reprimanded for using his arm to shield his eyes from overhead lights that were turned off only between 1 and 5 a.m.

"A person might be arrested for treating a dog like this," said Benjamin Stevenson, the American Civil Liberties Union lawyer representing Higgins.

The Department of Corrections declined a request for comment, saying it doesn't weigh in on pending lawsuits.

Asked whether a Florida prison cell could actually be that small, Michelle Glady, spokeswoman for the department, said it depends on the institution.

The lawsuit claims that other than thrice-weekly showers, Higgins mostly spent his time alone, and "only left his isolation cell less than a couple dozen times."

The ACLU says Higgins experienced the seizure on Sept. 27, 2018. It alleges that when a Desoto corrections officer tried to hold Higgins down, Higgins bit the officer in what the suit says was an involuntary reaction in conjunction with the seizure.

Higgins, who was serving two years for lewd and lascivious behavior, had been prescribed anti-seizure medication. The FDC's medical records from 2017 note that Higgins had a history of seizures. Nonetheless, the department interpreted Higgins' bite as intentional and a team of prison officials sent him to Close Management I -- described by Florida Administrative Code 33-601.800 as "the most restrictive single-cell housing level of all the close management status designations."

The suit says three corrections officers pummeled Higgins for over an hour.

Speaking generally and not about the lawsuit, press secretary Rob Klepper said all guards complete a first-aid course for criminal justice officers, which "includes information and curriculum on seizures, among a wide variety of other topics."

Corrections officers are re-certified annually through the American Safety and Health Institute, whose seizure response guidelines explicitly state that a person experiencing a seizure should not be restrained.

FDC rules require corrections officers to turn on handheld cameras when they use force against prisoners and add that incidents "shall continue uninterrupted from commencement of recording until the situation is stable and under control."

In the case of a "reactionary" use of force, something other than, say, a planned cell extraction, a camera operator should be summoned "as soon as possible" to begin recording.

According to the lawsuit, the beating of Higgins began 38 minutes before the recording was initiated and an additional eight-minute-long segment part-way through the incident is missing. The plaintiff is seeking a copy of the video through legal discovery but hasn't obtained it yet.

Higgins' allegations follow a string of lawsuits against the department over its treatment of prisoners with disabilities.

In 2012, Darren Rainey, an inmate in the transitional care unit at Dade Correctional Institution, died after he was locked alone in a makeshift shower for two hours as hot water sloughed the skin off his body. The TCU is where inmates with mental illnesses are confined. Rainey had covered himself with feces, angering guards.

Rainey's death spurred an investigative series by the Miami Herald, Cruel and Unusual, that revealed instances of corrections officers tormenting inmates by serving "air trays" -- trays with no food -- and by either deliberately over-medicating or withholding medication. As a result of that reporting, the department secretary resigned and new protocols were put in place in Dade Correctional and at the system's other transitional care units.

In July of 2017, the FDC settled a broader dispute with Disability Rights Florida over the department's treatment of inmates with disabilities, agreeing to better care and oversight by the Correctional Medical Authority. The CMA was formed in 1986 to oversee physical and mental healthcare within the Florida prison system.

The lawsuit asserted that the Department of Corrections was treating behavior stemming from mental illness as a disciplinary matter rather that a healthcare issue -- seemingly foreshadowing Higgins' incident.

In its settlement, the department agreed to make "widespread changes in its psychiatric treatment system by providing individually tailored, results-driven treatments," Disability Rights Florida wrote in its summary of the provisions.

A request for information about reformed FDC practices under the CMA was referred back to the FDC's press office, which did not respond with a comment.

Dante Trevisani, a lawyer at the Florida Justice Institute, which advocates on behalf of Florida inmates, is monitoring the progress of the Disability Rights Florida settlement, which is enforceable in court. He notes that while the FDC has made some improvements, real upgrades will require an architectural change in the system.

Among the FDC's shortcomings, he said, is a failure to provide sign language interpreters for inmates.

"While some changes have been made, we continue to hear reports of mistreatment of prisoners with disabilities and failures to provide the accommodations required under federal disability laws," says Trevisani. "[Disability Rights Florida] is pursuing those issues through the settlement process."

Trevisani is also pursuing an ongoing, class-action lawsuit against the FDC, challenging its alleged overuse of prolonged solitary confinement, which the United Nations condemns in the Nelson Mandela Rules. The case, Harvard v. Inch, is filed on behalf of all current and future inmates in solitary confinement in the system. The Southern Poverty Law Center, Florida Legal Services and the Florida Justice Institute are pursuing the case.

In the lawsuit, the Southern Poverty Law Center says Florida assigns prisoners to solitary confinement at twice the rate of other states, many of which are working to cut the use of the practice in their facilities.

"We're seeking an end to the torture of solitary confinement as it's currently used in Florida, along with meaningful access to rehabilitative programs and effective medical and mental healthcare," Trevisani says.

The Southern Poverty Law Center's portrayal of the percentage of Florida inmates in solitary has been disputed and there are disagreements over what solitary even means. The Department of Corrections did not respond to a request for how many inmates are kept in Close Management 1, apparently the nearest thing to what most people view as solitary confinement -- and the status that Higgins held in after his seizure.

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