TALLAHASSEE, Fla. (The News Service of Florida) — Amid a nearly two-year legal battle about the use of solitary confinement in Florida prisons, a federal magistrate judge has ordered a series of steps to prevent retaliation against inmates who take part in the case.
Magistrate Judge Martin Fitzpatrick issued a 53-page order Monday that said testimony and evidence showed “actual overt retaliation by prison officials, as well as threats of retaliation.”
“It is not just actual retaliation that is a concern, but the threat of retaliation, or even the reasonable perception — by the inmates — that they may be retaliated against,” Fitzpatrick wrote. “It’s not just alleged violent acts, the denial of food or other necessities, or other improper treatment that is at issue. Nor is it the alleged threat of such evil acts. It’s the perceived threat that may result from a ‘shhh!’ from a guard, a cold stare from across the room, a hard pat on the back from a warden, or a ‘hmmm’ as they leave the room. The inmates deserve the assurance that their participation in the discovery (process of obtaining evidence) — and indeed the lawsuit — will not result in any negative backlash. Only through a clear order from the court guaranteeing these protections against retaliation and laying out how discovery shall proceed will they receive such an assurance.”
The order came as the plaintiffs’ legal team has gone to prisons to investigate the use of solitary confinement and to interview inmates. In part, inmates contended that correctional officers threatened or intimidated them and withheld food in retaliation for participating in the case.
Fitzpatrick recounted testimony from inmates, prison officials and officers, who denied wrongdoing. He also pointed to a memo that Department of Corrections Secretary Mark Inch issued last year directing that inmates should not face retaliation for filing lawsuits or communicating with attorneys.
“This record establishes that retaliation, harassment and threats of retaliation continued despite the Secretary’s memorandum,” the magistrate judge wrote. “Such behavior raises substantial concern for the fairness and integrity of this litigation if prison officials are intimidating and threatening potential plaintiff prisoners or, at the least, prisoners who may be called to testify as witnesses. Such intimidation happens by persons who control the most basic attributes of life — the provision of meals, the ability to use (and flush) the toilet, access to showers or time outside of one’s cell, advancement to less restrictive housing, and the means by which to report issues and seek redress of grievances.”
Fitzpatrick’s order set off a flurry of activity, in part because the plaintiffs’ legal team was scheduled this week to visit Hamilton Correctional Institution and Union Correctional Institution, according to court documents.
Chief U.S. District Judge Mark Walker on Tuesday cleared the way for the visits but put a 14-day stay on Fitzpatrick’s order. If neither side objects to the order within 14 days, it would take effect. If an objection is raised, Walker wrote that he will review the order.
In a document filed Tuesday, department attorneys said they were evaluating Fitzpatrick’s order but had not had enough time to determine whether to appeal it.
The underlying lawsuit, filed in 2019 by the Southern Poverty Law Center, Florida Legal Services and the Florida Justice Institute contends that the department’s solitary-confinement practices violate the constitutional ban on cruel and unusual punishment and violate the Americans with Disabilities Act.
The department has disputed the allegations, in part saying that solitary confinement is used for security reasons and to effectively manage prisons and only when necessary.
Fitzpatrick’s order did not delve into the overall issues in the lawsuit. It provided a series of guidelines to try to prevent retaliation and intimidation against inmates participating in the case. Among other things, the guidelines address what correctional officers and inmates can discuss about the case and seeks to assure that inmates can have confidential conversations with the plaintiffs’ legal team.
“The private interviews should be conducted in a place and manner that provides the inmates and interviewers with as much privacy as would be afforded legal counsel conducting a legal visit,” one part of the order said. “There should not be direct involvement of correctional staff in these interviews unless there are specific security or safety concerns.”