$7.5 million Delaware settlement announced in Vaughn prison uprising lawsuit

WILMINGTON — The state will pay a $7,550,000 settlement to the 11 claimants in the lawsuit stemming from the Feb. 1 inmate uprising at James T. Vaughn Correctional Center that left Lt. Steven Floyd dead, according to a joint press statement released by former Federal Judge Joseph J. Farnan, Jr.

“The Delaware Department of Correction and the plaintiffs in the lawsuit regarding the Feb. 2017 prison uprising have entered into a settlement agreement, in mediation before the Honorable Joseph J. Farnan, Jr., former Chief Judge of the United States District Court for the District of Delaware,” reads the press release. “Subject to the terms of the agreement, 11 claimants, including six DOC employees, will share $7,550,000.

“The funds will be paid by the state and represent a settlement of their workers’ compensation claims and other disputed claims in the lawsuit. A package of employment related benefits is also being provided. The claims asserted against all of the individual defendants were dismissed with prejudice prior to the settlement.”

The press release goes on to say that both parties have agreed that the claims remain disputed and the settlement is not an admission of wrongdoing by the DOC, the state, or any present or former Delaware employee or official, nor a concession by the plaintiffs that their claims were unfounded.

It is claimed that the settlement has been made to “avoid the burden and expense that comes with protracted litigation, and to bring closure to the matter.”

The defendants, including former Delaware governors Ruth Ann Minner and Jack Markell, along with DOC commissioner Perry Phelps and three former commissioners, and state budget director Michael Jackson and his predecessors, attached the following statement to the release:

“For the reasons stated in our court filings the claims against all of the individual defendants lacked legal merit. All of the defendants wish to express, however, their condolences and respect. It is their hope that this settlement with the DOC will provide a measure of comfort to the officers, employees and their families, whose service and sacrifice should be honored by all Delawareans.”

The 11 claimants, including Lt. Floyd’s estate, widow, three children and the five other officers who were held hostage during the incident, also attached a statement. It reads:

“Each of the injured parties and their families wish to thank the general public, the members of the COAD (Correctional Officer Association of Delaware) Union, the Delaware and Maryland state troopers and other law enforcement officers on the scene on Feb. 1 and 2, first responders and the media for their support.”

The former correctional officers, employees and their families now hope to concentrate on emotional and physical healing, noted the release.

Beyond the statements, neither defendants, plaintiffs or lawyers involved will comment further. The release also asks that the media and residents of the state respect the privacy of the officers and their families.

Governor John Carney released a statement on Friday evening.

“My hope is this settlement provides some measure of relief to the officers, employees and families involved,” he said. “As a state, we remain committed to taking all appropriate action to improve safety and security across Delaware’s correctional facilities. We owe that to the memory of Lt. Floyd.”

Original lawsuit

The original 52-page federal complaint was filed by Wilmington attorneys Thomas Neuberger and Tom Crumplar back in April.

Much of the complaint rested on the state’s alleged failure to provide a safe working environment for its employees and long ignored staffing issues within the DOC and how these failures led to the incident on Feb. 1.

At the press conference in April where Mr. Neuberger announced the lawsuit, he claimed that his clients’ case would “paint a picture of widespread negligent behavior among top elected and appointed officials.”

He said then, “After an exhaustive two-month investigation, today we charge that for 16 years it has been the policy of two governors in Delaware deliberately not to employ enough officers to safely run Delaware’s prisons. Instead they spent up to $23 million per year forcing understaffed officers to work 16 hour shifts overtime to save money at the expense of putting their lives at risk.”

The lawsuit alleged that the administrations of former Governers Markell and Minner sought to not only dismiss mounting issues within the DOC, but willfully obfuscate and hide the extent to which the state’s prison system was ailing.

In early July, attorneys representing state officials tried to convince judges to dismiss the case, arguing in a filing that there’s no “constitutional” right to workplace safety.

In late August, the plaintiffs’ attorneys fired back with a 71-page response that made the case for letting the lawsuit proceed unimpeded. That brief renewed Mr. Neuberger’s push to demonstrate that the correctional officers were injured in the workplace by defendants’ actions and policies which “violated plaintiffs’ substantive due process rights under the 14th amendment.”

In that filing, Mr. Neuberger claimed that then-Gov. Markell put a policy in place that exacerbated the already dire overtime policy used by former-Gov. Minner. It was an alleged policy that included the instruction that “at least 90 vacant DOC positions must go unfilled at all times.” It was also claimed that in 2016, then-Gov. Markell’s administration oversaw a policy that released approximately 100 of the most dangerous, violent offenders back into the general prison population at Vaughn, a majority of whom were placed in Building C — the site of the uprising — but due to the understaffing problems, they did not proportionately increase staffing or security measures.

“We’ve conclusively proven the guilt of Gov. Markell,” said Mr. Neuberger. “The blood is on his hands for the torture and death of Lt. Floyd.”

The lawsuit claimed that serious dereliction of duties began in earnest following a July 2004 incident in which inmate Scott Miller took 27-year-old counselor Cassandra Arnold hostage and raped her repeatedly.

After that incident, an executive task force was created by then-Gov. Minner consisting of former judges Grover Brown and Vincent Bifferato Sr. The task force’s resulting report was critical of the state’s prison system and called for sweeping reforms that included addressing severe understaffing, misuse of overtime and inadequate training.

“But did Minner follow this disinterested advice?” Mr. Neuberger asked at the time “No. She just passed it on to her successor Gov. Markell and guess what he did? Under his watch, there still weren’t enough officers and the overtime budget rose from $8 million to $20 million.”

The complaint claimed that both administrations were repeatedly given warnings from a variety of sources including task forces, security experts, a deluge of media reports and the COAD staff. All of which were allegedly ignored.

The lawsuit even points to time during the Minner administration when the COAD tried to draw attention to issues by renting billboards throughout the state and running slogans on them such as: “Delaware Corrections, where minimum staffing would be an increase.” and “Welcome to Sussex County. For your safety, obey the law. We cannot staff our prisons.”

Although Gov. Carney was not named as a defendant in the original complaint, it makes mention of an earlier request to have Lt. Floyd’s autopsy report privately released to his family that was ignored and comments on an alleged policy breach.

The DOC policy manual states that the warden of a given prison is to become the “ultimate commander” in the event of a major emergency and remains in charge until the situation is resolved.

The complaint claims that former Vaughn warden David Pierce had approved a prison emergency response team to retake Building C and rescue the hostages within an hour of the uprising’s start. However, he was allegedly overruled by Gov. Carney who halted the rescue attempt “for presently unknown reasons.” This “enraged” the warden, the complaint says.

Gov. Carney has publicly denied this claim.

About 20 days after the uprising Mr. Pierce was reassigned.

DOC spokeswoman Jayme Gravell in April said Mr. Pierce “has been reassigned to the Bureau of Community Corrections and is performing duties equivalent to his merit pay grade. He retains the merit title of Warden V at a salary of $109,595.64, according to the state’s budget office.

An oral argument had been scheduled for Nov. 20 so U.S. District Court Judge Richard Andrews could decide whether or not the lawsuit should be allowed to proceed. However, it was postponed on Nov. 16. The judge granted the request to postpone, but no new date was provided at the time.

State attorneys had asked the judge to delay the argument because “among other issues, the parties are discussing an amendment to the complaint.” The request came on the same day a press conference to announce the filing of a federal complaint by Patricia May, a counselor who was also held hostage during the incident, was canceled. Ms. May was not included in the initial lawsuit filed by survivors of the February siege.

When asked about the press conference, Mr. Neuberger, who is representing Ms. May separately, confirmed that it was canceled but declined to comment further on the suit.

Managers at The Westin Wilmington hotel said that their Caesar Rodney Room had been reserved for a press conference of Nov. 16 that was subsequently canceled.

The judge’s announcement notes that 11 claimants will share the settlement money, but only ten plaintiff are listed in the original complaint. The original defendants were Lt. Floyd’s estate represented by Rachel Ann Powell, his wife Saundra, he three children Candyss, Steven Jr. and Chyvante and the correctional staff members who held hostage during the incident: Winslow Smith, Joshua Wilkinson, Justin Tuxward, Matthew McCall and Owen Hammond. It was unclear if Ms. May was included as part of the settlement package. Mr. Neuberger declined to comment on the matter.

The February incident

According to a series of reports given by DOC and state officials, the takeover of Building C, which then housed about 120 inmates in transition from medium to maximum security, began at approximately 10:30 a.m. on Feb. 1.

During the incident, inmates took four correctional workers — the three officers and Ms. May — hostage. Two of the three officers, both severely beaten, were released later that day. Three correctional maintenance staff members were also trapped in Building C and later rescued during the uprising. The hostage stand-off was said to have lasted about 19 hours.

Using a backhoe to break through a barricade of water-filled footlockers, tactical teams rescued Ms. May but found Lt. Floyd unresponsive on Feb. 2

Officials said inmates were armed with sharp instruments and used an officer’s radio to communicate with negotiators.

Ms. May was allegedly not injured and officials said that some inmates may have actively “shielded” her from harm.

The decision to breach the barricaded building came at around 5 a.m. on Feb. 2, when negotiation experts determined there was significant stalling and fear for the remaining hostages’ well-being was rising.

Earlier in negotiations, the inmates had bargained to have the water in Building C turned back on so they could “hydrate” and for hygiene purposes, but they instead used the water to fill footlockers to add weight and blocked entryways with them.

Officials confirmed that 16-year veteran officer Lt. Floyd died sometime during the siege. He was pronounced dead at 5:29 a.m. The Delaware Division of Forensic Science later ruled his death a “homicide by trauma.”

The surviving victims of the Feb. 1 uprising are haunted every day by the ordeal they lived through, Mr. Neuberger said previously.

“Medical care is ongoing for all the surviving hostages and they are worse off today than in February,” he said. “Their lives will forever be changed. Their injuries are permanent, and include: chronic post traumatic stress disorder, panic attacks, major depression, concussions, short and long term memory loss, nightmares, flashbacks, angry outbursts, social isolation and survivor’s guilt. As a result, none are able to continue their careers with the DOC.”

Legal contingency fund

When the state loses a civil suit or settles a case, it pays the plaintiff(s) out of a fund specifically used for lawsuits involving state agencies and outside legal counsel. The state’s legal contingency fund is financed annually through the budget process.

In response to a Freedom of Information Act (FOIA) request filed earlier this year, the state’s Office of Management and Budget said the fund was appropriated $1.071 million for Fiscal Year 2018 and that state officials expected to have approximately $3.2 million in it from “carryover” funds from previous fiscal years. According to the OMB, the state spent $3.9 million out of this fund during FY 2017.

“The line item appropriation for legal fees is funded through the Joint Finance Committee each year based on a recommendation from our office,” OMB director of policy and external affairs Bert Scoglietti said at the time.

On Friday evening, Mr. Scoglietti said the funds for the $7.55 million settlement will be drawn from the legal contingency fund and “workers compensation fund.”

“$5.1 million will come from the workers compensation fund for state employees,” he said. “The remaining $2.45 million and that will be paid from current and prior year funds which are in the OMB legal contingency and self insurance fund.”

When asked if the workers compensation fund had been used in the past to settle a civil suit in this manner, Mr. Scoglietti said: “To my knowledge, no.”

According to his recollection, the OMB has never paid a higher settlement than this one. Mr. Scoglietti has been working at the OMB for 31 years.

Cassandra Arnold precedent

For news readers in the state about 13 years ago, the legal exchange resulting from the February incident may seem all too familiar.

The proceedings bear a notable resemblance to the state’s handling of the lawsuit brought against it in 2005 on behalf of Ms. Arnold, the assaulted prison counselor. Ms. Arnold escaped the 2004 incident after correctional officers stormed the room where she was held and fatally shot Mr. Miller.

Ex-Gov. Minner, the former-DOC commissioner Stanley W. Taylor and 11 others were named as defendants in that lawsuit.

As with the just-settled lawsuit, the state’s first move then was to argue for dismissal. Attorneys claimed that Ms. Arnold knew she would be working in a dangerous environment when she was hired, was paid for hazardous duty and voluntarily accepted known risks from inmates.

Again, an 80-page argument brief was filed, insisting that the lawsuit be allowed to proceed. However, in that instance, the state waited to hear a decision before settling. Judges at the time decided that Ms. Arnold could not sue the DOC, because the agency was constitutionally protected, but the lawsuit against the individuals was allowed to proceed.

Afterward, the state tried to quietly settle. According to Delaware State News archives, the public was unaware for four weeks that the state had settled with Ms. Arnold for $1.65 million. Details emerged only after the Delaware State News pressed state officials four weeks after the settlement occurred.

At the time, former-OMB director Jennifer Davis told this paper that there was about $5.4 million left in the legal contingency fund after paying out the sum to Ms. Arnold.

It’s not over

In the wake of the deadly uprising, three investigations were commenced to build a comprehensive report of the incident and its causes. The criminal investigation, led by the Delaware State Police, sought to identify and charge the inmate perpetrators responsible for the riot. In mid-October, this eight and a half month investigation produced 18 inmate indictments. Sixteen inmates were charged with three counts first-degree murder, and two others were charged with kidnapping, rioting and second-degree conspiracy. As of Friday, most of the indicted inmates were in the process of being arraigned, six have already pleaded not guilty and demanded jury trials.

The second investigation was an independent review ordered by Gov. Carney to focus on the conditions at the prison leading up to the incident and provide recommendations on how to avoid a similar incident and addressing the “systemic” ills of the DOC.

The independent review, conducted by a former Family Court judge William Chapman, Jr. and former U.S. attorney Charles Oberly III, was completed in early September and produced a 159-page final report based on interviews with DOC correctional, educational, mental health and medical staff, including correctional supervisors, Vaughn administrators and executive administrators past and present. It also took into account letters from inmates and family members, interviews with community and inmates’ rights groups and other agency representatives.

Issues cited in the review included communication problems between management and staff, low morale and fatigue among correctional officers, chronic correctional officer understaffing and a lack of focus on rehabilitating prisoners. The review read:

“Conditions at the JTVCC had deteriorated to the point that there was unrest among inmates, and distrust between inmates and correctional officers, as well as between correctional officers and JTVCC administrators.

“Factors giving rise to this unrest included adverse working conditions for the correctional officers, who continue to feel unappreciated by the administration, inconsistently implemented rules and regulations, an inmate grievance procedure deemed unfair, a distrusted medical/mental health system and a real lack of morale permeating the line officers.”

Notably, the review pointed out that the uprising could have possibly been avoided if a request by Lt. Floyd to transfer “over five” inmates hadn’t been ignored.

“The incident that began on Feb. 1, would have likely occurred at some point somewhere within the JTVCC,” the review reads.

“However, the mix of inmates flowing down from maximum to medium security and inmates flowing up from medium towards maximum security in the C-Building and the circumstances giving rise to that mix, as more specifically set forth in the body of the report, hastened the inevitable.

“Most unfortunately, the Independent Review Team believes that had the request for the removal of certain inmates from the C-Building made on Jan. 20 by the very correctional officer who was killed during the incident that began on Feb. 1, been taken more seriously and carried out, the incident and the resulting death may not have occurred.”

Of the last investigation, a DOC lead internal affairs investigation, very little is known. The DOC has not responded to questions about when the internal affairs investigation is expected to be complete — only noting that it is currently in progress.

“The internal investigation into the incident on February 1-2 is ongoing so the DOC cannot provide comment,” said Ms. Gravell.

Although it’s unclear if they are connected to the internal investigation, there have been several high profile administrations changes since the riot.

In addition to former-warden Pierce’s reassignment, Christopher Klein, the former chief of the Bureau of Prisons, was replaced. Mr. Klein accepted a new job as deputy principal assistant at the Delaware Department of Safety and Homeland Security — led by Robert Coupe, his former boss at the DOC and also a defendant in the just-settled lawsuit. As bureau chief under both Mr. Coupe and Commissioner Phelps, Mr. Klein oversaw Delaware’s four prisons, including Vaughn. On Oct. 20, DOC administrators also terminated the security superintendent at Vaughn during the incident, Jeffrey Carrothers.

Whatever the investigation’s completion date, stakeholders appear to be lining up to examine its findings.

The Correctional Officers Association of Delaware noted that its members look forward to the completion of the investigation.

“We hope that those, internally, that made mistakes are held responsible,” said COAD president Geoff Klopp. “We haven’t been given any hard dates on when that’ll be; ‘soon’ is all we’ve heard.”

At a Nov. 14 Council on Correction meeting, newly minted chairman Darryl Chambers said the advisory group has an interest in being informed about the investigation after its completion as well.

“I think that it’ll be in our best interest to see what the conclusions are from the investigation,” he said. “I think when the time is right and the circumstances permit, that we will ask Alan (Grinstead, deputy DOC commissioner) or Commissioner Phelps or the governor himself that we be briefed on or be given a chance to see the high-level view of what’s happening. Possibly, some of the recommendations that come out of those things could dictate the direction we need to go as a council.”

Jonathan Starkey, a spokesman with the governor’s office, said Gov. Carney will also eventually be briefed on the investigation.

“The internal investigation is being led by the DOC and the Governor will be briefed upon its conclusion,” said Mr. Starkey. “Along with the criminal investigation and the independent review, this is one of three investigations into the events of Feb. 1 and 2 at JTVCC. The governor is confident that we will end up with a comprehensive understanding of what happened.”

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