Suit seeks release of Shelby Co. inmates
Cites higher risk for catching coronavirus
Several legal organizations, including the American Civil Liberties Union of Tennessee and Memphis-based Just City, filed a federal class action lawsuit Wednesday against the Shelby County Sheriff’s Office, seeking the release of detainees most vulnerable to COVID-19.
The legal action follows a late April announcement that nearly 200 inmates and staff tested positive for the virus at a facility in Memphis at 201 Poplar Ave. The sheriff ’s office also announced on April 21 that one corrections deputy who worked with detainees at the main jail had died.
The lawsuit seeks to compel county officials to identify and release detainees who would be considered medically vulnerable and who carry an elevated risk for more serious complications of COVID-19. The suit defines those individuals as detainees over the age of 55 or who have previous medical conditions.
The lawsuit is also seeking the release of medically vulnerable detainees who are still in custody because they are unable to pay bail.
“Public health experts agree that, in light of these unprecedented circumstances, jail officials must act swiftly to protect those most vulnerable to serious illnesses or death from COVID-19,” wrote ACLU staff attorney Andrea Woods in a release.
For their part, Shelby County officials have decreased the jail population by hundreds in recent months. Since midmarch, Shelby County’s top prosecutor, Amy Weirich, has worked with defense lawyers and judges to fast-track cases toward guilty pleas, often leading to
ward probation or diversion. Weirich also said her office is dismissing many charges.
Jails, much like long-term care facilities, have been identified by the Centers for Disease Control and Prevention as places where the probability of contracting infectious diseases increases significantly when compared to other housing.
CDC guidance for detention centers recommends social distancing of at least six feet at all times, as well as frequent hand washing and the use of facial coverings.
The suit alleges these CDC recommendations are not being closely followed at the jail, and that detainees are forced to live, eat and sleep within close proximity of one another. The suit alleges detainees have not been provided with adequate sanitation measures and are at an increased risk for infection.
Sheriff Floyd Bonner has said all inmates at the jail have access to soap and hand sanitizer and that masks were issued to all inmates and workers in midapril.
Just City, a nonprofit advocacy organization in Memphis, established a program before the start of the novel coronavirus pandemic that focused on providing bail funds for low-level offenders who spent additional time incarcerated due to an inability to pay.
And in Shelby County, 86% of detainees at 201 Poplar are pre-trial and have not yet been convicted of their charges, according to a report from the Tennessee Department of Correction.
“It is especially cruel that most of the people at great risk of infection in the jail would not be there if they had financial resources,” wrote Just City’s executive director, Josh Spickler.
The Commercial Appeal has reached out to Bonner and District Attorney General Amy Weirich for comment on the lawsuit.
Suit offers glimpse into life at 201 during the pandemic
The suit was filed by multiple legal and advocacy groups on behalf of two detainees — Favian Busby and Michael Edgington. Both detainees are accused of multiple felony drug charges but have not been convicted. Both are being held on six-digit bonds.
Edgington is 60, the suit states, and
automatically at risk for serious COVID-19 complications. Busby is diabetic and suffers from hypertension.
According to data from the county health department, diabetes was a preexisting condition in 35.4% of all COVID-19 fatalities in Shelby County. Cardiac conditions, which include hypertension, were preexisting conditions in 81.7% of individuals in Shelby County who died from COVID-19 complications.
The suit describes the daily living conditions that Edgington, Busby and other inmates currently live in as cramped, with no practical means for social distancing.
Detainees at 201 typically reside in “pods” that line an open communal area.
While each pod can hold two people, not all of them are at full capacity, following measures by Weirich’s office to release hundreds of low-level offenders.
But for those that remain, the suit alleges conditions that would rule out social distancing.
Each pod has an air vent that could potentially re-circulate infected respiratory droplets into the communal living area.
If two detainees are occupying the same pod, they sleep on bunk beds within three to four feet of one another. At meal time, the suit says, detainees eat four to a table.
Soap being provided by the jail is small in size, and sometimes detainees who are unable to afford personal soap from the commissary must wait several days before being supplied with soap, according to the suit.
Cleaning products are also in short supply, the suit alleges, and detainees must rely on jail staff to offer them.
On April 29, the county health department said a round of testing at 201 Poplar resulted in positive COVID-19 tests among 155 detainees and 37 jail employees.
The detainees that tested positive were quarantined on the sixth floor of the jail for more than two weeks, according to county sheriff’s office spokesperson Capt. Anthony Buckner.
On Tuesday, Buckner told the Commercial Appeal the previously quarantined detainees were being relocated from the sixth floor back to their respective pods.
But around 3:30 p.m., Buckner said, a group of detainees refused to return to their pods and were eventually moved with force.
“The Detention Response Team was sent to the floor to help support ongoing efforts to gain voluntary compliance. A chemical agent was released near the detainees after they refused all staff orders to comply and sat on the floor. Shortly thereafter, the detainees complied and relocated to their respective housing units,” said Buckner.
Buckner also said no injuries were reported from the incident.
According to the suit, “Many detainees resisted the move because it put other people in the jail at risk of increased exposure to the virus: as one person in quarantined housing put it, ‘All we’re looking for is to be re-tested before we are re-classified and rehoused ... (I feel) a moral obligation not to pass the virus to anyone else.’”
Buckner confirmed there has been no additional testing at 201 Poplar since April.
Previous lawsuits still loom over Shelby County
Even before the pandemic hit, the Shelby County government was facing several legal demands related to allegations of abuse and mistakes in the jail.
Combined, the jail lawsuits could cost the Shelby County government millions of dollars — money that would ultimately come from local taxpayers.
A man filed a civil lawsuit in 2018, alleging that he was jailed on an attempted burglary charge, held inside 201 Poplar, and housed in a cell with a violent inmate who raped him.
Due to the personal nature of the lawsuit, the man filed the suit under the pseudonym John Doe.
The matter had been scheduled to go to a federal jury trial in April, but the trial didn’t take place.
No new trial date has been set, according to court records.
Due to the COVID-19 pandemic, all federal civil proceedings in the district have been delayed until after May 30, and might be delayed even longer.
The man’s lawyer, Curtis Johnson, described him in court documents as particularly vulnerable due to his young age of 21; his small size of 5 feet, 4 inches tall at 125 pounds; and his history of mental health problems, including severe depression and suicidal thoughts.
Lawyers representing the county government, Lee Whitwell and John Marshall Jones, denied the account of rape in an October 2018 court document.
They wrote at one point: “The statements in the second sentence are based on unproven allegations and are denied for lack of knowledge.”
The county government has filed many other documents in its defense, including a request that the court dismiss the case without a trial. However, several of the key documents have been filed under seal and could not be read by The Commercial Appeal this week.
This is not the first time a jail detainee has alleged that he was raped inside 201 Poplar. A 1996 rape case led to federal oversight of the jail until 2005.
One of the key participants in that case was U.S. District Judge Jon Mccalla, who oversaw efforts to monitor the jail and reduce rapes and other violence, according to a summary of civil rights litigation maintained by University of Michigan Law School.
Mccalla dismissed the case in 2005. According to the summary, Mccalla said that, “prior to 2001, the jail was a dangerous place with high level of violence and rape, and pervasive gang control. Today, the jail is a safer institution for both inmates and staff; violence and gang activity have been brought under control.”
The current John Doe case has been assigned to the same judge, Mccalla.
Locked up for 73 days by mistake
Another federal lawsuit filed early this year alleges that a man named Demerrick Ratliff, who has sometimes used the name Demerrick Porter, was locked up in county facilities for months by mistake.
The suit said authorities confused him with his son, Demerrick Porter Jr., who had an active warrant. The suit, filed by attorneys Paul Forrest Craig and Daniel Mickiewicz, alleges the man repeatedly told officials about the mistake, but he never got a chance to go before a judge.
The father was finally released in November
2019 after 73 days behind bars, the suit says.
In a legal response filed this month, lawyers for Shelby County, Lee Whitwell and Katherine Frazier, confirmed that the man who filed the lawsuit was incarcerated between Aug. 23 and Nov. 4 of last year.
The county lawyers wrote several legal defenses, including that the government agencies most responsible for rectifying any mistaken identity weren’t county agencies, but rather state agencies,
In addition to Covidrelated cases, several suits claim jail held inmates too long or by mistake.
Price tag from cases unclear
The cost from these lawsuits to taxpayers is unknown, but could be significant. For instance, the man who filed the 73-days-in-jail case demanded at least $7 million.
Many civil cases are resolved through settlements, and the total cost to taxpayers would likely be less than what’s demanded.
And if a judge or jury ends up dismissing the claims, the county’s legal liability is zero.