Crime - Sacto 911

January 30, 2014

Judge reopens use-of-force hearings for California prisons after details emerge of inmate’s death

U.S. District Judge Lawrence K. Karlton’s decision came on the heels of the state’s disclosure that it has launched “disciplinary” investigations into the death of Joseph Duran, a 35-year-old mentally ill inmate who was pepper sprayed in his cell Sept. 6, because he would not let go of the food port in his cell door.

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With the parents of dead inmate Joseph Duran looking on, a federal judge Thursday agreed to reopen the explosive issue of whether California prison officials use excessive force – including pepper spray – against mentally ill inmates.

U.S. District Judge Lawrence K. Karlton’s decision came on the heels of the state’s disclosure that it has launched “disciplinary” investigations into the death of Duran, a 35-year-old mentally ill inmate who was pepper sprayed in his cell Sept. 6, because he would not let go of the food port in his cell door.

Duran, who breathed through a tube in his throat as a result of a 2006 tracheotomy, was found dead inside the cell seven hours later.

Questions about what caused Duran’s death, why guards refused a doctor’s orders to treat him after he was sprayed and whether state officials delayed disclosure of his death have sparked the internal investigation into what happened to the inmate at Mule Creek State Prison just outside of Ione.

“Defendants are taking this matter very seriously,” Deputy Attorney General Patrick McKinney told Karlton at Thursday’s hearing on behalf of the California Department of Corrections and Rehabilitation.

“Corrective actions are underway and a systemwide change to the use-of-force policy is being implemented,” the state’s attorneys said in court documents. “There is also an ongoing investigation into whether disciplinary action should be taken against staff in this matter.”

Karlton agreed to a request by attorneys for mentally ill inmates that the use-of-force issue be reopened. The lawyers are spearheading a long-running class-action lawsuit designed to improve the treatment of mentally ill prisoners. They have a challenge pending over the use of pepper spray on their clients and they say they learned of its use in the Duran case from The Bee instead of corrections officials. They now want information about Duran’s death included in the evidence Karlton considers before he rules on the issue.

The judge said he would allow 30 additional days of discovery aimed at finding out what happened to Duran and whether it is germane to the pending motion.

Karlton declined a suggestion from McKinney that corrections officials, the state’s attorneys and lawyers for the inmates hold “informal” discussions in the judge’s chambers or in a sealed courtroom after spectators and reporters were kicked out.

The judge ordered Thursday’s hearing after The Bee, citing confidential corrections documents, detailed the events of Duran’s death at the prison about 35 miles southeast of Sacramento.

Attorneys for the state argue that corrections officials did disclose the use of pepper spray and Duran’s death to the inmate attorneys in September, but that there was lingering uncertainty over the cause of death.

The Amador County coroner declared in November that Duran committed suicide by stuffing spaghetti and fecal matter into his stoma – the hole in his throat he breathed through – after yanking out his breathing tube. (Duran’s parents said he told them the tracheotomy was the result of a confrontation with a deputy who hit him in the throat with a flashlight, but corrections documents indicate “he was reportedly shot in the neck by police.”)

A subsequent review of the inmate’s death by corrections officials disputed the coroner’s finding and concluded Duran was using the pasta to soothe irritation from the pepper spray and that his death likely was preventable.

The corrections department ultimately decided the death was “accidental,” not a suicide.

On Wednesday, the court-appointed special master overseeing mental health care in the prisons finalized the cause of death as “either an accidental injury to self or ‘unknown,’ ” according to court documents filed Wednesday night.

As they asked Karlton to deny the request to reopen the use-of-force hearing, corrections officials noted that changes have already been made in department policies on the issue.

In documents filed in federal court on Jan. 21, the department noted that new policies “significantly limit pepper spray use when an inmate refuses to allow staff to close and secure a food/security port.”

“Staff may no longer use pepper spray simply because an inmate is holding a food/security port open,” the documents state. “Rather, force is permitted only when the inmate presents an immediate threat to the safety of the officer or inmate

“Even when an immediate threat exists, staff may only apply ‘a single 3-second burst of chemical agents against the inmate to secure the food/security port.’”

In Duran’s case, guards decided his refusal to clear the food port and come out of his cell constituted an emergency, and corrections officials say he was subjected to a 2-second burst of pepper spray in the face from 6 feet away.

Duran’s parents, Steven and Elaine Duran, say they are devastated over the death of their son, whom they adopted when he was 5. The couple traveled from their Whittier home to attend Thursday’s hearing and said afterward that they wanted to be present to show support for their son.

“I’d like the judge and the court to know that Joey has family,” Steven Duran said.

The Durans have said their son frequently refused to take medications prescribed for his hyperactivity and mental disabilities, which included bipolar disorder, antisocial personality disorder and hallucinations.

The family retained Sacramento attorney Stewart Katz, who said he planned to file a tort claim over Joseph Duran’s death in the next few days, a precursor to a civil rights lawsuit.

The Durans learned of their son’s demise this month, when they were contacted by The Bee seeking comment for a story on his death. By that time, the prison had turned his body over to a funeral home, which cremated him and had his ashes scattered at sea.

Prison officials had tried to reach the Durans in September, calling a phone number that was disconnected and later sending a telegram to an address where the family had not lived for more than a decade.

A top corrections official recently called them to apologize for the manner in which they learned of his death, but Steven Duran said he has heard nothing else from the department.

“They couldn’t say anything to me that’s going to make me feel better,” he said.

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