CHARLESTON — With a possible default judgment likely after a federal judge chastised West Virginia officials for allegedly destroying emails and documents, details of a proposed settlement between inmates at the Southern Regional Jail and state corrections officials was released.
Meanwhile, another federal class action lawsuit regarding conditions across West Virginia’s entire correctional system continues.
Attorneys representing inmates at the Southern Regional Jail near Beckley and attorneys representing current and former officials with the Department of Homeland Security and Division of Corrections and Rehabilitation met for a status hearing Thursday in Beckley before U.S. District Judge Frank W. Volk.
The proposed settlement, which must still be approved by Volk, is between SJR inmates Michael Rose and Edward Harmon and former DCR interim commissioner Brad Douglas, former DCR commissioner Betsy Jividen, current interim DCR Commissioner William Marshall, former DHS cabinet secretary Jeff Sandy, and former SJR superintendent Michael Francis.
According to WCHS-TV, the total of the settlement with SJR inmates is $4 million, coming from four $1 million insurance policies through the state Board of Risk and Insurance Management. The settlement will be divided between eligible inmates who were incarcerated at SJR between Sept. 22, 2020, and the date of the finalized settlement, or approximately 9,200 inmates.
Specific details of the settlement and final formulas for how many would be distributed was not available. The settlement does not include other parties to the lawsuit, including seven Southern West Virginia county commissions that contribute funding to SJR and two healthcare providers at SJR.
The settlement came more than a week after U.S. Magistrate Judge Omar J. Aboulhosn’s 39-page order 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.
Mark Sorsaia, who was appointed as the new DHS cabinet secretary in July by Gov. Jim Justice, said he approved the tentative settlement given the circumstances of Aboulhosn’s order. Both Sorsaia and Justice have said there was no intentional destruction of evidence.
“In my capacity as Secretary of Homeland Security I authorized settlement of all claims in the Rose v. Jividen case,” Sorsaia said in a statement Thursday. “Given the judge’s recommendation of default judgment looming over the case, this settlement represents the most favorable outcome for our state.”
Interim DCR Commissioner Douglas and an attorney for DHS were fired last week following Aboulhosn’s order, and some of the missing documents were found. Officials have blamed the two former employees, as well as miscommunications between DCR and the Office of Technology which provides email and IT services to state agencies.
“It’s important to acknowledge that the actions of former employees within the Division of Corrections brought us to this situation. However, I want to reassure the public that these individuals are no longer employed by the Division of Corrections,” Sorsaia said.
“Since the outset of this case, and even under my predecessor’s tenure prior to my appointment, Gov. Justice has consistently called for complete accountability and transparency in this case,” Sorsaia continued. “Unfortunately, the actions of these former employees hindered our ability to fulfill this demand. However, both the Governor and I remain deeply committed to working diligently to ensure that transparency and accountability prevail in our efforts moving forward.”
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 inhuman living conditions and overcrowding at SJR. While former DHS secretary Sandy conducted a site visit and rudimentary investigation in March 2022, Justice’s Chief of Staff Brian Abraham said Wednesday that he was conducting another investigation at SJR.
“We’ve since learned that staff at the jail weren’t doing the things they needed to do,” Abraham said. “The governor has instructed me to now conduct another internal investigation regarding any other potential employees who might be implicated in this…we’ve already initiated that.”
Both Abraham and Sorsaia said they believe in the current leadership team at SJR and DCR to implement reforms at the jail.
“We believe we have a good leadership team in place,” Abraham said. “They have been directly charged by the Governor with getting whatever problems that are down there corrected and making sure the prisoners there have the treatment they are entitled to.”
“I have full confidence in Southern Regional Jail Superintendent John Frame, and in our director of the West Virginia Division of Corrections Billy Marshall to continue promoting the core mission of DCR by enhancing public safety, promoting offender accountability, and successfully reintegrating offenders into society,” Sorsaia said.
Meanwhile, several of the same law firms that represented inmates at SJR have a pending federal class action lawsuit against Justice and Sorsaia over conditions facing the entire system of 11 prisons, 10 regional jails, 10 juvenile centers and three work-release sites.
The lawsuit, filed Aug. 8 in the U.S. District Court for the Southern District of West Virginia, 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 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.
Attorneys for Justice filed a motion Monday to dismiss him from the lawsuit. They claim Justice is immune from the lawsuit due to sovereign immunity, which shields the governor from civil lawsuits in certain circumstances. They also argue Justice has no direct supervisory authority over jails and prisons, and that his actions show that he is not “deliberately indifferent” to conditions in the correctional system.
Justice declared a state of emergency for severe staffing shortages in the corrections system in August 2022, the second time such a state of emergency has been declared. Members of the West Virginia National Guard are in state prisons and jails providing assistance.
In 2023, 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.
A scheduling conference before U.S. District Judge Irene Berger was set for Dec. 14 at 2 p.m. at the federal courthouse in Charleston.
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