Inmate grievance process is in the legal spotlight

Copyright © 2021 Albuquerque Journal

Eighteen people locked up in prisons around the state have filed a lawsuit alleging that the New Mexico Corrections Department’s inmate grievance process is unconstitutional, and results in cruel and unusual punishment. They are asking for changes to the process rather than compensation.

Parrish Collins, the attorney who is representing the inmates, has already filed 17 lawsuits against the Corrections Department and its medical providers – formerly Centurion Healthcare and currently Wexford Health Sources Inc. – since 2018. The various lawsuits, including four that were filed on behalf of an estate after a person died, allege “gross medical negligence, recklessness and deliberately indifferent refusal of basic medical care.” Nine cases involved such infections as osteomyelitis and spinal sepsis, two involved severe diabetic neglect leading to amputations, and two involved failure to provide Hepatitis C or Hepatitis B treatment, leading to cirrhosis, according to the latest lawsuit.

In an interview, Collins said inmates have to complete the grievance process before they can file suit, but it is designed to prevent them from finishing that process. That’s why, he said, he had to file this latest action, a petition for declaratory relief and a temporary restraining order.

“For our clients, it means they’ve gotten horribly ill, they’ve ended up in the hospital for weeks or months, and quite a few of them have died because they can’t get medical care,” Collins said. “The medical grievance process is supposed to protect their right to medical care, but because it’s broken, there is no check on the lack of provision of medical care. These guys are allowed to deteriorate.”

The petition was filed in 1st Judicial District Court in Santa Fe on May 20 against the State of New Mexico; the Corrections Department; Cabinet Secretary Alisha Tafoya Lucero; Health Services Administrator Wence Asonganyi; Orion Stradford, the Bureau Chief of Internal Audits and Standards Compliance for the state; and Grievance Appeals Manager Steve Madrid and other employees of the department.

Eric Harrison, a spokesman for the Corrections Department, said the department does not comment on active litigation, but “lack of comment should not be construed as agreement with or stipulation to any allegations.”

“The well-being and safety of the inmate population is of upmost (sic) priority to the Department, and our staff remain dedicated to upholding our mission and building a stronger New Mexico,” Harrison wrote in an email.

In the latest suit filed May 20, Collins calls the grievance process instructions “misleading and deceptive,” making it “de facto unavailable.” He says none of the employees involved in the grievance process are trained medical professionals and, after requesting documents dating back to January 2016, he has not found any cases where a grievance was decided in favor of an inmate.

“A trained attorney would be hard pressed to unravel the many contradictory provisions in NMCD, while largely uneducated inmates must do so with no legal assistance at all, instead relying on a fellow equally uneducated inmate, if even this is allowed,” Collins wrote. “The intentionally vague, confusing and contradictory instructions on the grievance process render the medical grievance process unavailable.”

He also said he has heard numerous reports of inmates who have been retaliated against for filing a medical grievance, including two who have pending litigation against the department.

“Both clients, while in active litigation, were placed in segregation. One of the inmates was in segregation for over one month and the other for two weeks for filing medical grievances,” the suit states. “Another client was placed in segregation for filing medical grievances for untreated cancer, for which she was denied access to her (University of New Mexico Hospital) oncologist from May 2020 to her release date on February 1, 2021.”

The suit asks a judge to declare the grievance process unconstitutional, to suspend requirements that inmates exhaust administrative remedies through the process pending trial, and to declare that any breach in the processes, procedure and deadlines by the Corrections Department nullifies the responsibility of inmates to exhaust all options.

It also asks that the judge allow attorneys to submit grievances for inmates and allow a minimum of 90 days for inmates to submit informal complaints to begin the grievance process.

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