January 30, 2011

Inmates file $5 million lawsuit against sheriff’s office

Say ‘humiliated’ by treatment at jail

Mark Millican

— David Bennett admits he’s been to prison but said he’s never been treated as badly as he was at the Whitfield County jail in October when he was “humiliated” — along with 27 other inmates — while being held naked in a cell block for 12 hours. He said the inmates also had to spread an unidentified cream on their bodies.

“It was a physical strain with the coldness, the shaking and shivering,” he said in a recent telephone interview. “It was complete humiliation.”

Bennett, 42, and fellow inmate Jesus Gallardo have filed a lawsuit in U.S. District Court in Rome seeking $5 million in punitive damages under the Civil Rights Act of 1983, citing human rights violations. A court clerk verified that the suit, with Sheriff Scott Chitwood and other department employees as defendants, was received on Jan. 20.

The other defendants are Capt. Wesley Lynch, Sgt. Graham Williams, Sgt. Jeremy McMillan, Officer Ryan Rogers, Officer Greg Sims and Dr. George Kerr.

Lynch, who directs operations at the jail, said the reason the inmates were made to disrobe was because of a “de-lousing” treatment. The incident resulted in the discipline of two employees — McMillan, who was the on-shift jail supervisor, and Rogers.

“There was an outbreak of body lice in one of the cell blocks, and everything in the cell block had to be decontaminated,” Lynch said. “The application of the ointment was to kill the scabies. Lice become embedded in the skin, and covering the skin with that lotion kills them.”

Grievances made

Bennett filed two inmate grievance forms on Oct. 28, two days after the incident. One filed “against medical” alleged malpractice since Bennett said he was taking an antibiotic and was concerned about “cross-side effects” with the cream, especially since it was never identified. A response on the form states, “This cream was given out for the safety and security of this facility. This is a non-grievance issue. Therefore your grievance is without merit.”

The grievance filed “against staff” alleges the cream was dispensed by officers without medical background, and that the inmates were made to remain naked for 12 hours, “which I have never been in my entire life since birth,” Bennett wrote. That response said, “Thanks for bringing this issue (up). We will address this issue.”

McMillan was given a formal written reprimand, and Rogers was given a “record of coaching” action but not a written reprimand, said Lynch.

Lynch met with Bennett after the disciplinary action had been taken, he said.

“I went back to talk to him personally and told him we did take action against the officers,” he said. “In my opinion, it was not malicious or a violation of their civil rights. They were trying to do the right thing, but probably not in the best way.”

Lynch said the officers believed clothing could not be worn since it might rub the lotion off, and that they thought “mistakenly” that the inmates needed to remain nude “based on their health and safety rather than their comfort.”

“The biggest issue was that they should have made the command staff aware of what they were doing,” he said.

Other cases

Lynch said there were “no unusual temperature issues” when the inmates were held nude for the extended period, and that jail maintenance personnel had confirmed there was nothing wrong with the heat output in the cell block.

“I don’t think it was negligence,” he concluded. “If officers made mistakes while doing their job, they’re not liable according to the Eighth Amendment (which prohibits cruel and unusual punishment).”

Lynch also said Bennett had suggested he might not testify in a child molestation case in a Dec. 6 letter to himself and Chitwood.

“Before I actually file this and talk to the newspaper(s) I thought you all may want to talk to me and or my lawyers that are representing me in my criminal case,” Bennett wrote. “P.S., I am a material witness in a child molestation case ... and will be happy to testify. But I have not and do not feel safe at this jail.”

He closed the letter by requesting a transfer to the Murray County Jail to “handle” pending charges there.

There is an outstanding probate bench warrant for Bennett in Murray County, according to a jail spokeswoman there. He is charged with driving with no license, improper passing and obstruction of law officers.

Bennett has been arrested and booked 35 times at the Whitfield County jail since 1999, according to documents provided by the sheriff’s office. His most recent arrest in October was for sale of methamphetamine, use of a communication facility in drug transactions, felony probation violation and giving false information to officers.

“They came into the dorm and told us to strip, and never told us why,” Bennett said. “They said it’d be for a couple of hours with no covering. I’ve been in prison, but this had never happened. It seemed absurd to me. I was physically sick for a week afterward from the cold, and all because they think some 18-year-old kid who had left the day before had lice.”

Court will decide merits

A clerk of court at the U.S. District Court said Bennett’s hand-written suit had been given to a magistrate who works under Judge Harold Murphy.

“The complaint is ‘on’ and it’s been submitted to the judge,” she said. “It’s submitted to the magistrate because it’s a prisoner case. He will look at it and could do an order. We submit them and wait.”

The clerk was asked what the next step might be, whether the suit would move forward or be dismissed.

“Anything could happen from that point,” she replied. “(A dismissal) could happen (or) it could proceed.”

Bennett said he will represent himself if the suit moves forward.

His next appearance will be in Whitfield County Superior Court on Monday when he is arraigned on three separate indictments before Judge Jack Partain, said District Attorney Kermit McManus. The first indictment is for giving false information to law enforcement officers (two misdemeanor counts), the second is for sale of meth and the third is for using a communication facility to transact the sale of meth, both felonies.

“As a result of (the arraignment), I can’t give you specific information about his criminal history because to do so, and you printed that in the paper, could be construed as my attempt to prejudice potential jurors because of a prior record — if he has one,” McManus explained.


Sheriff’s office response to lawsuit

Following is a response to The Daily Citizen from Capt. Wesley Lynch of the Whitfield County Sheriff’s Office following a complaint from an inmate that he and 27 other inmates were held up to 12 hours without clothing in one of the jail’s cell blocks. Two of the inmates have filed a lawsuit seeking $5 million in punitive damages from Sheriff Scott Chitwood and other employees, including Lynch.

“This action was taken to prevent an outbreak of contagious vermin in the facility. If it was wrong, it was an action taken based on medical advice and was not ‘sadistic or malicious,’ and neither was it deliberately indifferent to the medical needs of the inmates. We maintain that this civil action is being taken, based on the inmate’s own written statement, to bully this office into interfering with his criminal prosecution. We will not be coerced to act to obstruct justice in this fashion.

“In any case, we do not believe this action to rise to the level of a constitutional violation. The Constitution does not require officers in these situations to be perfect and neither does it require a system to be mistake-proof as no system such as this exists. In addition, inmates’ rights to privacy in general population are severely limited by law, especially when a valid penological interest in health, safety or security is maintained.

“If these officers made a judgment error, they did so in the performance of their duties and in an attempt to keep the jail population, officers and staff healthy. We should recognize that individuals will make errors in the performance of any job, including law enforcement. We should also appreciate that, if an error was made, at least it was made in a valid attempt to do the right thing.”