by Bill Trine
The Fall 2012 issue of The Warrior
magazine (pages 10-14) included an article on the litigation surrounding The
Crowley Prison Riot and the evils of the private prison system. I described the consolidated individual
lawsuits brought by over 200 inmates who were non-participant victims of the
Crowley County Correctional Facility (CCCF) prison riot in July 2004. The lawsuits
were finally settled on an individual basis two weeks before the scheduled 25-week
trial was to commence on March 11, 2013 against Corrections Corporation of
America, the largest private “for profit” operator of prisons in the United
States.
Many
of you followed this litigation with some interest – perhaps because of the
length and complexity. The lawsuits were filed individually (not as a class
action) against CCA and individual employees, alleging State tort claims. We
were prohibited from pursuing §1983 claims in State or Federal court, because
none of the inmates had complied with the PLRA notice requirements and their
cases would have been dismissed. Class action certification was highly unlikely
and also not desirable. Colorado “tort reform” greatly restricted damages with
abolition of joint and several liability, caps on non-economic and punitive
damages, and permitting CCA to designate the rioters as nonparties at fault to
diminish or eliminate any damage award. We claimed that CCA’s negligence was a
cause of the riot.
So,
with that background, we were in the appellate courts five times resulting in
two published opinions; defended the depositions of 126 inmate/clients; took
the depositions of 30 CCA employees; and reviewed over 150,000 pages of
documents produced by CCA, the Colorado Department of Corrections and the
Inspector General. Multiple motions were filed resulting in three interlocutory
appeals, as well as 13 motions in limini filed shortly before trial. But how
did we start with nearly 240 plaintiffs and eight years later end up with only
193 who received settlements? During those years several clients died; some
were released and became homeless, and could not be located; and some did not
respond to discovery requests or court orders and were dismissed. Only
non-economic damages were claimed and those damages do not survive death in
Colorado.
The Settlement Process
An early settlement of individual
cases was impossible. CCA filed motions to dismiss all cases, claiming that the
plaintiffs were required by Colorado law to exhaust remedies before filing
suit. The trial court granted the motions, dismissing all cases, and was then
reversed by the appellate court – which made new law favorable to prisoners’
rights; however, this delayed the litigation for two years. After preliminary
discovery, I evaluated each clients non-economic damages consisting of fear,
pain and suffering, mental anguish, etc. There were no viable economic claims
for lost wages or medical expenses. Individual demands were then made for
settlement in varying amounts on condition that there would be no
confidentiality agreement.
CCA’s
response was the filing of formal offers of settlement under the rules for
$250.00 per inmate, conditioned on a confidentiality agreement. That ended
negotiations until all formal discovery was completed years later and after
numerous motions for partial summary judgment had been ruled upon as well as
other motions that were subject to interlocutory appeals. The critical court
rulings that finally precipitated settlement were several evidentiary rulings
adverse to CCA resulting in dismissal of CCA’s counterclaims, affirmative
defenses, and designation of non-parties. But unfortunately, the court ruling
that forced the plaintiffs into settlement was the denial of plaintiffs’ motion
for separate trials in groups of 10 and the appellate court’s refusal to
intervene.
Without
separate trials, all 193 plaintiffs were scheduled for a 25-week jury trial.
The barriers to proceeding in that fashion became insurmountable. First and foremost,
it was virtually impossible for a jury to remember the damage testimony and
render individual verdicts for each plaintiff. It was apparent that the trial
would end in a mistrial, hung jury, or inconsistent verdicts, followed by one
or more additional trials and appeals. With every year of delay, we were losing
an increasing number of clients who would not receive justice.
In addition, as
we prepared for trial, many of the clients who had been released from prison
were scattered in several states, some with jobs and many on parole, who could
not get employers or parole officers’ permission to travel to court to testify.
Without testimony, their cases would be dismissed. As plaintiffs, the court
would not permit telephone testimony over CCA’s objection. They would have to
testify in person. Those still incarcerated could testify by telephone or video
conference, but only if the prison would permit it. The Washington prisons said
no. Therefore, we were making arrangements to bring suit in the state of Washington
to compel their prison system to permit such testimony. The Colorado court had
no jurisdiction to do so. The cases of those who failed to testify would be
dismissed.
CCA
decided to settle, but wanted to make a lump sum offer, and not individual
offers to each plaintiff. We could not ethically do so. We made individual
demands, again conditioned on no confidentiality agreement. The state of
Colorado appointed one of its senior retired settlement judges to mediate.
Finally, CCA made individual offers and after several rounds of negotiations,
all 193 cases were settled individually for amounts varying from a low of $1,500
to a high of $17,000 for a total of about $600,000.
In
my opinion, the settlements were totally inadequate, but necessary. We had
exhausted our attempts to get appellate intervention for separate trials and
separate trials were necessary to obtain a semblance of justice. Perhaps
justice could have ultimately been obtained for a shrinking number of clients
in future years after additional trials and appeals, but the prospects were
dismal.
When
the trial date was vacated pending completion of the settlements, my wife asked
me how I felt. My response: “ I feel relieved and depressed. I feel like a
pregnant elephant that has just given birth to a mouse.” My last hurrah was a
moan.
The
only ray of sunshine in this epic eight year battle was the opportunity to work
with my daughter, Cheryl, whose contributions were enormous. We also received
some satisfaction from the many clients who expressed delight and gratitude
with their settlements -- particularly those who are now homeless.
