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BRCV2002-00870
RICHARD SOUZA, WAYNE SOARES,
BARRY BOOKER, RICHARD CENTENO, ANTONE CRUZ
WILLIAM PERRY, WILLIAM STATKIEWITZ, JEROME WIECZOREK, JR.
On Behalf of Themselves and All Others Similarly Situated,
Plaintiffs,
v.
SHERIFF THOMAS M. HODGSON
Defendant.
AMENDED COMPLAINT
Introduction
This is a class
action for declaratory and injunctive relief brought by prisoners at the
Bristol County Jail and House of Correction in Dartmouth and the Ash Street
Jail in New Bedford who challenge the so-called "Cost-of-Care"
program implemented by defendant to make them pay a five-dollar fee for each
day they are incarcerated. Plaintiffs also challenge the fees defendant
charges, pursuant to the so-called "Inmate Financial Responsibility
Program," for a number of prison services, including medical care,
haircuts, and General Education Development (GED) testing.
Plaintiffs
contend that the Cost-of-Care program is unlawful for the following reasons:
(1) it was promulgated in the absence of any statutory authority
and is therefore ultra vires; (2) it conflicts with numerous statutes governing
who must pay the costs of incarceration; (3) it violates the Substantive and
Procedural Due Process Clauses of the United States and Massachusetts
Constitutions; (4) it violates the Equal Protection provisions of the United
States and Massachusetts Constitutions; (5) it violates the Ex Post Facto
Clauses of the United States and Massachusetts Constitutions; (6) it is an
invalid and unauthorized tax; and (7) it violates the doctrine of separation of
powers embodied in art. 30 of the Massachusetts Declaration of Rights; (8) it
is an unlawful seizure of property in violation of the Fourth Amendment to the
United States Constitution and Article 14 of the Massachusetts Declaration of
Rights; (9) it deprives plaintiffs' of their right to resolve property disputes
through a trial by jury in violation of Article 15 of the Massachusetts
Declaration of Rights.
Plaintiffs
further contend that the Inmate Financial Responsibility program is unlawful
because (1) the haircut fees violate G.L. c. 124, § 1(r); (2) the medical
co-payment fees are ultra vires and violate G.L. c. 124, § 1(s) and (t); and
(3) the GED fees are ultra vires and violate G.L. c. 127, § 92A. Finally, by taking funds deriving from social
security or veterans benefits, defendant is violating the non-alienation
provisions of the federal statutes which govern such benefits, 42 U.S.C. § 407
and 38 U.S.C. § 5301.
PARTIES
1. Plaintiff Richard H. Souza is awaiting
trial at the Bristol County Jail and House of Correction in
2. Plaintiff
3. Plaintiff Barry Booker is awaiting
trial at the Bristol County Jail located on
4. Plaintiff
5. Plaintiff Richard Centeno is awaiting
trial at the Bristol County Jail and House of Correction in
6. Plaintiff Antone Cruz is awaiting
trial at the Bristol County Jail and House of Correction in
7. Plaintiff William H. Perry is serving
a sentence at the Bristol County Jail and House of Correction in
8. Plaintiff William Statkiewitz is
awaiting trial at the Bristol County Jail and House of Correction in
9. Plaintiff Jerome Wieczorek, Jr. is
serving a sentence at the Bristol County Jail and House of Correction in
10. Defendant Thomas M. Hodgson is the
Sheriff of Bristol County. Pursuant to
G.L. c. 126, § 16, he is responsible for the custody and control of all
prisoners committed to the Bristol County Jail or House of Correction. His
business address is
CLASS ACTION ALLEGATIONS
11. This is a class action under Rule 23(a)
and (b) of the Massachusetts Rules of Civil Procedure.
12. Plaintiffs are representatives of a
class composed of all persons who are now, have been, or may be, confined in
the Ash Street Jail in New Bedford or the Bristol County Jail and House of
Correction in Dartmouth, and who have been charged fees pursuant to defendant's
Cost-of-Care or Inmate Fiscal Responsibility programs.
13. Membership in the class is so numerous
that joinder of all members is impracticable.
There are approximately 1000 persons in defendant's custody at any one
time, and the population is constantly changing as persons are incarcerated and
released.
14. The plaintiffs' claims involve common
questions of law and fact and are typical of the claims of the class as a
whole.
15. These common questions predominate over
any questions affecting only individual class members. Defendant has acted and refused to act on
grounds generally applicable to the class so that final declaratory and
injunctive relief would be appropriate to the class as a whole.
16. Plaintiffs have a strong personal interest
in the outcome of this litigation, are represented by competent counsel, and
will adequately and fairly protect the interests of the class.
17. A class action is superior to any other
available method for a fair and efficient adjudication of this
controversy. Separate actions by
individual members of the class would create a risk of inconsistent or
differing adjudications and delay the ultimate resolution of the issues at
stake.
FACTS
A. General Allegation
Concerning the Cost-of-Care Program
18. On
19. Under the Program, defendant charges
20. No statute authorizes defendant to
charge prisoners for their incarceration.
21. The Commissioner of Correction did not
authorize the Cost-of-Care Program pursuant to his authority under G.L. c. 127,
§ 1A, to establish standards for the care and custody of persons committed to
county correctional facilities.
22. Defendant automatically deducts the fee
from the prisoner's account.
23. Prisoners have no right to refuse to pay
the fee.
24. Defendant takes the funds without notice
or a hearing.
25. Defendant does not pay prisoners for
work.
26. The fees comes either from funds the
inmate had in his possession when he entered the facility, or is delivered by
outside sources such as family or friends.
27. Defendant charges inmates the
five-dollar fee even if they are indigent and have no money in their inmate
account.
28. If the inmate does not have sufficient
funds to pay the fees, his account will run a negative balance. If he has not paid the fees by the time his
sentence expires, he will be presented with a bill when he is discharged. For example, a completely destitute inmate
incarcerated for a year with no funds will owe $1825.00 when he is released.
29. If a prisoner who owes funds under the
Cost-of-Care program returns to the Bristol County Jail or House of Correction
within two years of his release, the debt will be added to whatever additional
charges he accrues during the subsequent incarceration.
30.
Defendant charges the five-dollar per day incarceration fee to pre-trial
detainees who have not been convicted.
31. If the pretrial detainee is found not
guilty, or the charges are dismissed, he may be reimbursed for the fees
collected.
32. A pretrial detainee will not be
reimbursed if he is found guilty even if the court does not impose a sentence
of incarceration.
33. Inmates transferred to
34. Defendant has stated that the purpose of
collecting the fees is to: (1) teach inmates "responsibility"; (2)
raise revenues for the Sheriff's office to offset budget cuts, and (3) deter
crime by forgiving the amount an inmate owes if he is not returned to the
Sheriff's custody within two years of release.
35. Defendant uses the fees to enhance
general revenue. Defendant does not
earmark
the fees to
pay for inmate programs.
B. Inmate Fiscal
Responsibility Program
36. The Cost-of-Care Program is a component
of the Inmate Fiscal Responsibility Program under which prisoners are charged
for haircuts, medical services, GED testing, and other items.
Haircut Fees
37. G.L. c. 124, § 1(r) provides that the
Commissioner of Correction shall adopt policies and procedures establishing
reasonable fees for haircuts at any county or state correctional facility.
38. The Commissioner of Correction has
established a fee of $1.50 per haircut for non-indigent inmates in state
correctional facilities. See 103 DOC 762.
39. The Commissioner of Correction has not
established a haircut fee for county facilities.
40. Defendant has established a fee of $5.00
for non-indigent inmates who wish a haircut or beard trim.
41. The Commissioner of Correction's haircut
regulations provide that the fee may only be taken from funds the prisoner has
earned at prison job, as opposed to money given him by his family.
42. Defendant takes the haircut fee from any
funds in the prisoner's account, even though the funds were not earned at a
prison job.
43. The $5.00 haircut fee exceeds the costs
of providing haircuts.
Medical and Health Service Fees
44. G.L. c. 124, § 1(s) provides that the
Commissioner of Correction "shall adopt policies and procedures
establishing reasonable medical and health services fees for medical services
that are provided to inmates at any state jail or correctional facility."
45. G.L. c. 124, § 1(s) does not authorize
medical and health service fees at a county correctional facility.
46. The Commissioner of Correction has
established medical fees for state prisoners but not for inmates in county
correctional facilities.
47. With numerous exceptions, the Department
of Correction requires non-indigent inmates who are not in pre-release to pay a
fee of $3.00 for self-initiated medical appointments. See 103 DOC
763. In accordance with G.L. c. 124, §§
1(s) and 48A, the DOC policy provides that the inmate does not have to pay the
fee unless he has funds earned at a prison job. There is also no charge for prescriptions or
eyeglasses.
48. Defendant charges
49.
50. Under defendant's program, inmates who do
not have funds to pay for medical services will have their accounts debited
anyway. Defendant will take the money if
the inmate subsequently obtains funds.
51. G.L. c. 124, § 1(t), provides that
defendant must ascertain whether an inmate has health insurance and if so, to
bill the health insurance provider for the cost of medical services.
52. Defendant does not ascertain whether
GED Services
53. G.L. c. 127, § 92A, provides that any
inmate desiring to take the GED shall not be charged an application or testing
fee.
54. Defendant charges non-indigent
C. Consequences of
the Cost-of-Care and Inmate Financial Responsibility Programs
55. As a result of the fees charged by
defendant many inmates have no money in their account so that defendant is
unable to transmit to the court victim and witness assessment fees required by
G.L. c. 127, § 3.
56. As
a result of the fees charged by defendant, many inmates have less than five
dollars in their account and therefore are deemed indigent by the defendant.
57. Defendant provides indigent inmates with
soap, a razor, toothpaste, and toothbrush, and female hygiene articles. Non-indigent inmates must purchase these
items from the Commissary.
58. Inmates who do not have funds in their
account to pay the fees charged by defendant may not purchase items from the
commissary. These inmates are unable
therefore to purchase deodorant, shaving cream, shower shoes, dental floss,
nail clippers, skin lotion, Q-tips, tylenol, pens, as
well as other items such as a fan, radio, or food.
59. Since
60. Since
61. Since
62. Since
63. Many inmates decline to seek medical
treatment because of the co-payment fees.
Plaintiff Soares, for example, has an abscessed tooth and is receiving neither antibiotics or pain killers. He also has hepatitis C which is not being
treated.
64. Many inmates refuse haircuts because of
the excessive haircut fees. Plaintiff
Wieczorek, for example, has chosen to shave his head rather than pay for a
haircut.
65. Each of the plaintiffs has exhausted
available administrative remedies relating to the Cost-of-Care and Inmate
Fiscal Responsibility programs.
CLAIMS FOR RELIEF
COUNT I
(Massachusetts Statutory violations)
66. Plaintiffs repeat and reallege the
allegations set forth in paragraphs 1 through 65.
67. Since defendant has no statutory
authority to charge fees for the costs of incarceration, the Cost-of-Care
program is ultra vires and void.
68. Defendant's Cost-of-Care Program violate
G.L. c. 126, §§ 8, 25, 29 and 33; G.L. c. 127, §§ 3 and 86F.
69. The medical co-payment fees are not
authorized by statute and violate G.L.c. 124, § 1(s) and (t).
70. The haircut fees charged by defendant
violate G.L. c. 124, § 1(r).
71. The GED fees charged by defendant
violate G.L. c. 127, § 92A.
72. Defendant has collected fees from
plaintiffs by force, coercion, or intimidation in violation of plaintiffs'
rights under G.L. c. 12, § 11I.
Count II
(Due Process)
73. Plaintiffs repeat and reallege the
allegations set forth in paragraphs 1 through 65.
74. Defendant's actions unlawfully deprive
plaintiffs of their rights to both substantive and procedural due process
secured to them by Articles 1,10, and 12 of the Declaration of Rights of the
Constitution of the Commonwealth of Massachusetts and G.L. c. 12, § 11I; and
the Fourteenth Amendment to the United States Constitution, as secured by 42
U.S.C. § 1983.
75. Defendant's actions unlawfully deprive
plaintiffs of their rights to both substantive and procedural due process
secured to them by Articles 1,10, and 12 of the Declaration of Rights of the
Constitution of the Commonwealth of Massachusetts and G.L. c. 12, § 11I; and
the Fourteenth Amendment to the United States Constitution, as secured by 42
U.S.C. § 1983.
COUNT III
(Equal Protection)
76. Plaintiffs repeat and reallege the
allegations set forth in paragraphs 1 through 65.
77. Defendant's actions violate plaintiffs'
rights to equal protection under the Fourteenth Amendment to the U.S.
Constitution, as secured by 42 U.S.C., § 1983, and articles 1, 10, 11 and 12 of
the Massachusetts Declaration of Rights and G.L. c. 12, § 11I. It also deprives them of their rights under
G.L. c. 127, § 32.
COUNT IV
(Ex Post Facto)
78. Plaintiffs repeat and reallege the
allegations set forth in paragraphs 1 through 65.
79. Defendant's actions violate the Ex Post
Facto provisions set forth in Clause I of Section 10 of Article 1 of the United
States Constitution and Article 24 of the Massachusetts Constitution, as
secured by 42 U.S.C. § 1983 and G.L. c. 12, § 11I.
COUNT V
(Unconstitutional Tax)
80. Plaintiffs repeat and reallege the
allegations set forth in paragraphs 1 through 65.
81. Defendant is not authorized by statute to
levy taxes.
82. Defendant's Cost-of-Care Program
constitutes an unlawful tax in violation of Pt. 2, C.1, § 1, Art. 4 of the
COUNT VI
(Federal Statutory Claims)
83. Plaintiffs repeat and reallege the
allegations set forth in paragraphs 1 through 65.
84. By taking funds deriving from
plaintiffs' social security or veterans benefits, defendant actions violate 42
U.S.C. § 407 and 38 U.S.C. § 5301.
COUNT VII
(Conversion)
85. Plaintiffs repeat and reallege the
allegations set forth in paragraphs 1 through 65.
86. By taking plaintiffs' funds without
legal authority, defendant has committed the tort of conversion.
COUNT
VIII
(Separation of Powers)
87. Plaintiffs repeat and reallege the
allegations set forth in paragraphs 1 through 65.
88. Defendant's action violates the doctrine
of separation of powers embodied in art. 30 of the
COUNT IX
(Unconstitutional
Seizure)