Inmates at Angola Prison Complain of Excessive, Unrestrained, Frequent and Unjustified Use of Chemical Agents on Prisoners

From a letter sent today by the ACLU of Louisiana:

October 25, 2012

Dear Warden Cain:

In the past few months, the ACLU of Louisiana has received numerous allegations of excessive or unjustified use of chemical agents, such as OC (oleoresin capsicum), upon inmates at Louisiana State Penitentiary (LSP). We write to bring the issue to your attention, and to request that you provide us LSP’s policies on chemical spray use, investigate the matter and immediately correct any unlawful practices.

Background

Specifics vary, but the theme of each account is the same: with increasing frequency and decreasing restraint, corrections officers at LSP are using chemical irritant upon offenders in inappropriate ways. The spray is not being used sparingly to discipline unruly or disobedient inmates, but gratuitously to punish offenders who pose no threat and are engaged in lawful activity.

For example, in several complaints, inmates state that chemical spray was discharged into their locked, unventilated cells and left to linger there, forcing them to breathe the acrid fumes for hours at a time. They add either that they were not given opportunities to decontaminate, or that decontamination followed only many hours later - in some cases only when the trapped inmates were in respiratory distress and required medical attention.

Inmates also allege that they were sprayed for complaining about minor problems, such as not being allowed to shower during a regularly-allotted bathing time; or for requesting emergency medical assistance; or for minor incidents such as failing to clear the cell floor of water that had spilled from a blocked toilet. Inmates state that on several occasions, Without instigation, they were taken in groups to the showers, stripped naked, doused with pepper spray and simply returned to their cells Without explanation.

Perhaps most seriously, quite a few inmates complained that they were sprayed in retaliation for filing administrative grievances, and in some cases were specifically told by corrections  that they would be sprayed again unless they withdrew their complaints.

Law Regarding Pepper Spray Use

As you are aware, the law does not permit use of chemical agents upon inmates for purely punitive or malicious purposes - use must be justified either by disciplinary need or a threat to security. Indeed, the federal courts of both Louisiana and the U.S. Fifth Circuit Court of Appeal have specifically addressed some of the factual scenarios we describe above. For example, the Fifth Circuit on more than one occasion has held it unlawful to spray inmates who are confined to a cell and pose no threat to corrections officers. Chambers v. Johnson, 372 Fed. Appx. 471, 473 (5th Cir. 2010); Johnson v. Dubroc, 3 F.3d 436 (Sth Cir. 1993) (Eighth Amendment violated where an isolation-tier inmate who loudly called out to another inmate
from inside his cell was sprayed in the face, treated and allowed a shower and change of clothes, but then was returned to his still-contaminated cell).

Similarly, the Middle District of Louisiana has stated that chemical agents cannot be used against inmates maliciously or for no apparent reason. Causey v. Poret, 2007 WL 2701969 (MD. La. 2007) (Eighth Amendment violated Where officers maced, choked, and kicked inmate in the shower  removing him from the kitchen area, where he had been accused of looking at a female officer).

Likewise, the Middle District has recognized excessive force where corrections officers pepper­sprayed an inmate after commanding him to take off all his clothes and locking him in a segregation cell, where he then became argumentative but still posed no threat. Young v. Huberl, 2008 WL 2019576 (M.D. La. 2008).

And of course, retaliation against an inmate for filing a grievance is unlawfull in any form, including retaliation by chemical spray, as it violates the First Amendment. Morris v. Powell, 449 F.3d 682, 684 (Sth Cir. 2006) (prison officials may not retaliate against a prisoner for exercising his First Amendment right of access to the courts or to complain through proper channels about a guard’s misconduct through the grievance process).

Relief

All of the scenarios we have listed above seem to be increasing in frequency, and all cross the line into excessive force, and therefore violate the Eighth andfor First Amendments. We therefore request the following:

(1) That you investigate the use of chemical agent at LSP to ensure that such use comports with applicable regulations, state and federal law;
(2) That you immediately curb any unlawful chemical spray practices at LSP and take all measures necessary to ensure that such practices do not recur including training all appropriate personnel on the lawful use of chemical agents;
(3) That you provide this office with a report of your investigation, including a report of any remedial or corrective measures taken; and
(4) That you provide this offìce with a copy of all guidelines, rules and regulations applicable to chemical spray use at L-SP3.

I will expect to hear from you within 48 hours. Please do not hesitate to Contact us if you have any questions. I look forward to your response.

Sincerely,

Marjorie Esman