2023-11-01 04:21:35
photo by: W.Va. Legislative Photography
Brad Douglas, head
of the West Virginia
Division of Corrections and Rehabilitation, received the brunt of a federal magistrate’s anger in an order issued Monday, accusing Douglas and other DCR officials of intentionally destroying evidence.
CHARLESTON — For the second time in a week, a West Virginia department is accused of destroying documents in a class action lawsuit, and a federal magistrate made his feelings known.
In a 39-page order issued Monday night, U.S. Magistrate Judge Omar Aboulhosn found in favor of attorneys representing inmates at the Southern Regional Jail near Beckley asking for a default judgment against the state Division of Corrections and Rehabilitation and multiple county commissions in Southern West Virginia.
In his order, Aboulhosn found corrections officials intentionally destroyed evidence being sought in the class action lawsuit. He proposed that U.S. District Judge Frank W. Volk confirm his finding and recommended that Volk grant the plaintiff’s request for default judgment against the Division of Corrections.
Aboulhosn also recommended the state be prohibited from introducing evidence to dispute claims by the inmates regarding confinement conditions and other testimony, as well as other motions and sanctions aimed at current and former Division of Corrections officials.
Aboulhosn wrote in his order that after serving as a judge at the state and federal levels for more than 15 years, he had never encountered a situation where a governmental agency had so flagrantly ignored efforts to retain documents, citing testimony during an Oct. 2 hearing where state officials admitted to not following state and federal rules for preservation of evidence.
“The testimony … stands out as some of the most remarkable testimony that the undersigned has heard,” Aboulhosn wrote. “… The failure to preserve the evidence that was destroyed in this case was intentionally done and not simply an oversight by the witnesses. The court does not make that statement flippantly but after much thought and reflection of the disturbing testimony that took place that day.”
Corrections Commissioner Brad Douglas received the brunt of Aboulhosn’s anger, as the judge accused him and other ranking DCR officials of intentionally destroying evidence.
“The intentional decisions to not preserve evidence, and to allow evidence to be destroyed was not done by low-level employees of the WVDCR but was perpetrated by the highest persons in the chain of command including the Commissioner of the WVDCR, Defendant Douglas,” Aboulhosn wrote. “… The recommendation of default judgment to the District Judge in this case, is extraordinary, but clearly warranted considering the intentional conduct in this case and other cases that came before …”
According to a summary of testimony from the Oct. 2 evidentiary hearing, Douglas last year never met with the Office of Technology about preserving emails, cell phone data or text messages, saying he “didn’t think about it.” While the entire chain of command between the Corrections Division and Southern Regional Jail about the letter from the plaintiffs requiring preservation of records, no effort was made to preserve records.
The class action lawsuit was filed on Sept. 21, 2022, by Michael Rose and Edward Harmon, two inmates at the Southern Regional Jail. The Corrections Division is accused by Rose and Harmon of alleged inhuman living conditions at the jail, overcrowding, lack of maintenance, unsanitary conditions and serving spoiled food, among other issues.
The two inmates are seeking a ruling ordering the state to correct the conditions in Southern Regional Jail, where more than a dozen inmates have died while in custody at the facility over the last two years, according to reporting by WVNS-TV and the Beckley Register-Herald.
In a separate order filed Monday, Aboulhosn ruled against motions requiring Gov. Jim Justice and the governor’s Chief of State Brian Abraham to sit for depositions, though both are required to comply with subpoenas for documents. During an administration briefing last week, Justice said he would be willing to testify, but he has no direct knowledge to provide.
“I would welcome anyone at any time to swear me in to giving sworn testimony,” Justice said. “We just don’t want to do something that is an absolute tee-total waste of time over something I don’t know anything about.”
The lawsuit by Rose and Harmon is separate from a class action lawsuit brought in August by adult and juvenile inmates against the Corrections Division about conditions in all of the state’s regional jails, prisons and juvenile facilities. That lawsuit accuses the state of understaffing, overcrowding, and delays of deferred maintenance for facilities. The inmates are seeking a ruling in their favor and an order to require the state to spend available surplus funds on staffing and maintenance.
Justice and the Legislature included money in the current budget for deferred maintenance for correctional facilities. An August special session saw the Legislature pass bills to increase the pay for correctional officers and a one-time bonus for correctional staff.
A state of emergency has been in place for the past 15 months due to severe staff vacancies in prisons and jails.
In a separate class action lawsuit brought on behalf of the state’s foster children, attorneys are seeking sanctions against the Department of Health and Human Resources for not keeping emails and other electronically stored documents sought in that case.
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