by Robin Kemp
Attorneys in a federal class action suit alleging that Clayton County Sheriff Victor Hill failed to protect detainees from COVID-19 say the Clayton County Jail has declared ink pens contraband, thereby preventing communication with attorneys about the case.
The pens in the jail are special collapsible safety pens, but jail staff allegedly told some detainees “that the pens were confiscated for ‘safety,’ and ‘because they could be used for weapons.'”
The Clayton Crescent has asked the Clayton County Sheriff’s Office for records of incidents involving the use of pens as weapons since the COVID-19 outbreak last March and will update when those records are forthcoming.
In a 67-page document filed May 13, defense attorneys in Jones v. Hill, which claims Hill did not do enough to protect detainees during COVID-19, asked a federal judge to order the jail to restore detainees’ access to pens.
According to the filing by lawyers from the Southern Center for Human Rights, the American Civil Liberties Union Foundation, and the American Civil Liberties Union Foundation of Georgia, “Shortly after the Court certified this case as a class action and class counsel began communicating with a large number of class members by mail, Defendants abruptly changed their longstanding policy on detainees’ access to writing implements, declared pens contraband, and confiscated all class members’ pens. This unprecedented policy serves no legitimate purpose, effectively eliminates class members’ ability to communicate confidentially with their counsel by mail, and substantially burdens class counsel’s ability to ‘fairly and adequately represent the interests’ of the class. The ban also violates the constitutional rights of class counsel and the class members and supports an inference of unlawful retaliation for protected speech.”
The U.S. Northern District of Georgia had “certified a class consisting of all people who are now or who will be incarcerated in the Clayton County Jail” as plaintiffs in Jones v. Hill. “Until recently, class counsel could confidentially communicate with class members through legal mail or individual legal visits. COVID-19 has already substantially restricted counsel’s access to the class members at the jail.”
Virtual visits between attorneys and detainees “last only 30 minutes and cost $11.97.” In addition, the complaint says, only attorneys can contact detainees, not the other way around. Both phone calls and e-mail “are monitored by the jail and are not confidential,” according to Jeremy Cutting, an attorney and legal fellow with the Southern Center for Human Rights who filed the motion.
Read the Motion, Declarations, and Correspondence
The attorneys say they don’t have “the personnel or capacity to conduct individual legal visits with each of the roughly 2,000 constantly changing class members in the jail.” Instead, they depend on detainees to keep them informed of “facts concerning the merits of the case” through legal mail, which is both confidential and “the most effective and least expensive” means of communication.
Class action suit stems from COVID-19 conditions
In July 2020, The Clayton Crescent reported that Rhonda Jones, Randolph Mitchell, Michael Singleton, and Barry Watkins filed suit in federal court against Hill, Chief Deputy Roland Boehrer, Jail Administrator Terrance Gibson, Jail Security Operations Section Commander Kevin Thomas, and Jail Administrative Operations Section Commander Maurice Johnson. The Clayton Crescent also spoke with two detainees who said that at least one other detainee had died in the jail during the COVID-19 pandemic. At the time, Hill’s legal advisor, Alan Parker, stated via Hill’s Nixle account, “There is no outbreak of COVID-19 in our facility. The media has [sic] falsely exaggerated the facts to suit their story. As the Legal Advisor for the Clayton County Sheriff’s Office, I have reviewed the allegations in the lawsuit, and we will vigorously defend against this lawsuit in a court of law, not in the press.” The Clayton Crescent later reported that the Clayton County Health District had warned CorrectCare, the jail’s medical contractor, as early as April 22, 2020, that the jail had a COVID-19 outbreak on its hands, and that, on March 5, 2020, CCHD had told Clayton County Sheriff’s Department’s Department of Nursing to submit a request for used N95 masks at the beginning of the pandemic. Detainees were forced to devise makeshift masks with towels, undershirts, and underwear.
The suit “asserts that the defendants’ disregard of the known risks of COVID-19 and its attendant illness and death exposes people who are incarcerated at the county jail to a highly fatal, infectious disease in violation of their rights under the Eighth and Fourteenth Amendments as well as federal disability rights laws.”
The suit was certified as a class action, covering Jones, Mitchell, Singleton, Watkins, and all others who have been held in the Clayton County Jail since the COVID-19 pandemic.
In February of this year, attorneys prosecuting the case “sent a confidential letter to each of the approximately 2,000 class members in the jail, informing them of the lawsuit and inviting their input in the form of a mailed response.” The letters were “sent in envelopes clearly marked as legal mail from class counsel.
When the letters started arriving in early March, the lawyers allege, Clayton County Jail “staff enacted restrictions on pens that prevent class members from responding to class counsel, or otherwise communicating by mail.” Staffers allegedly announced the ban, searched cells, confiscated “all pens in detainees’ possession,” and took pens off the commissary list.
“Detained class members report this was the first time they had ever seen staff confiscate or prohibit pens,” the complaint reads.
Jail detainees are not given access to regular ink pens that could be turned into makeshift weapons. According to the complaint, “The pens confiscated were no ordinary pens. They were flexible and designed to collapse under pressure to make them safe for use in secure settings.”
Several detainees described these special pens:
- R.K., 30: “The jail pens are thin, wobbly, plastic ink tubes about 4 inches long, with a small writing tip at the end. The pens are so flexible that you have to hold them at the very tip in order to write with them.”
- M.J.: “My pens, like all pens offered by the jail commissary, were very flexible and would bend under the slightest pressure.”
- J.W., 32: “They were so bendable that they were difficult to write with. It is my understanding that this unusual type of pen, which I had never seen before I was incarcerated, is a pen designed to be safe in a jail setting.”
Class attorney Ryan Primerano wrote Jack Hancock, who is representing Hill in the case, on April 7, asking whether the jail had indeed confiscated the pens and seeking “assurances that their clients were not interfering with class counsel’s ability to communicate with” the detainees and seeking a response by April 12.
On April 27, Primerano again asked Hancock for a response, noting, “The jail’s course of action is unprecedented in our experience. If we do not receive assurances by May 3, 2021, that detainees will have access to pens going forward, we will have no choice but to seek relief from the Court.”
Hancock replied by e-mail the same day, saying that he had been “awaiting additional information from my client; however, I will advise you what I know. I am advised that inmates are no longer able to purchase pens and keep them in their possession as a result of the use of the pens as weapons. I am further advised that any inmate is able to obtain a pen from jail personnel, but cannot retain the pens longer than is necessary. As you are also aware from our visit to the jail, inmates have regular access to the kiosks which allow them to email and text. Further they are available for visits by counsel as provided by jail policy. If you will provide me with the names and circumstances under which your clients contend that they have been denied the use of pens other than the blanket change that prohibits them from maintaining them long term, I will inquire and get back to you.”
In their own words
In one declaration included in the motion, R.G., 29, swore on April 21, “Yesterday [April 20, 2021], I asked an officer for a pen to fill out a medical form because our kiosk was not working, but he didn’t answer my request. I never received a pen. Because I can’t access a pen or any other writing utensil, I can’t write or communicate by mail. That means I cannot respond to any mail sent to me by my legal counsel.”
R.K., 30, swore on April 30 that “Around two months ago, people in my dorm room started receiving similar-looking pieces of legal mail. At the time, I did not receive anything. A week or two after I first saw the legal mail being distributed, an officer came into my dorm and announced that we weren’t allowed to have pens anymore. This came as a surprise. We have always had access to pens for as long as I’ve been at the jail. We use them to write postcards to loved ones, correspond with attorneys, and file lawsuits. A few days after the announcement, a large group of 10 to 15 officers entered the dorm and did a ‘shakedown’ of each cell. They searched my and my cellmate’s belongings and confiscated the two pens that we shared. Everyone else I knew said their pens were confiscated as well. After the shakedowns, I checked the commissary and pens were no longer listed as an item for purchase. The officers told us that anyone caught with a pen would face disciplinary actions. One officer told me that the pens were being confiscated ‘per the Chief, because they could be used for weapons.’ I have never seen a pen used as a weapon and I’d be shocked if I did. The pens that we had were not regular pens you might find in the outside world. The jail pens are thin, wobbly, plastic ink tubes about 4 inches long, with a small writing tip at the end. The pens are so flexible that you have to hold them at the very tip in order to write with them. The officers told us that we should ‘ask for an officer’ if we need to use a pen. That hasn’t worked for me or for anyone else I know. It has now been about six or seven weeks since pens became contraband. During that time, I have asked multiple officers 10 or 15 times for a pen. They have never let me use one. The officers’ responses vary, but the result is always the same–I am unable to get a pen. When I ask officers during my out-of-cell time, they have told me to ask the officer conducting head count. When I have then asked officers during head count, the officer has usually replied that they don’t have a pen on them at the moment and don’t have time to go get one. Sometimes they say they don’t have a pen with them even though I can plainly see a pen clipped onto the pocket of their uniform. Other officers just ignore my requests. I asked the same officer five or six times for a pen, with the same result each time: no pen. A few officers have told me they will try to get me a pen, but none of them have ever returned with one. I have heard many other detainees ask officers for pens as well. To my knowledge, nobody in my dorm has obtained a pen since the ‘shakedowns’ and the announcement that pens were contraband almost two months ago. A week or two after the pens were confiscated, I received legal mail from my attorneys at the Southern Center for Human Rights. I would like to respond to my attorneys’ mail but, without access to a pen or other writing implement, I have no way to write a response. I also can’t send postcards, write notes, or draft and file legal documents. Without a pen, anything that requires handwriting is no longer available to me or the men in my dorm.”
J.W., 32, swore on May 7 that he had signed a first declaration on November 25, 2020 and that this was his second declaration. “In late February, I observed that other men in my dorm received a legal mailing from my lawyers at the Southern Center for Human Rights (SCHR). I have corresponded with SCHR throughout the COVID-19 pandemic and served as a witness at the hearing on December 8, 2020, I received a similar-looking mailing a week or so later than the other men in my dorm. Just one week after I received the mailing, there was a ‘shakedown’ search for pens in my dorm. Officers yelled at us to throw our pens outside of our cells to be collected. Officers also searched our cells. I could tell that the shakedown was for pens in particular because the officers did not seem concerned about collecting any other contraband. Officers did not give us a reason for this new rule regarding pens. When I asked an officer about the change, he told me that he didn’t know why it was happening. Officers confiscated the two pens that I had purchased on the commissary. I was not given a refund for them. I have not had any access to a pen since the pens in my dorm were confiscated about two and a half months ago. I have been unable to respond to the legal mailing sent to me by my lawyers at SCHR or any other legal mail from my criminal attorney. I have no other way to reach out confidentially to my lawyers at SCHR because outgoing phone calls and kiosk messages are monitored. I have asked an officer to borrow a pen for temporary use on approximately seven occasions, but I am always refused. Officers have responded to my requests with: ‘not right now,’ ‘don’t have time,’ and ‘don’t have any pens on me.’ While I have not heard a formal reason for the confiscation from jail staff, I heard from another detainee at the jail that pens were banned because they could be used as weapons. This does not seem possible to me. The pens on offer at the jail were very flexible, small plastic tubes. They were so bendable that they were difficult to write with. It is my understanding that this unusual type of pen, which I had never seen before I was incarcerated, is a pen designed to be safe in a jail setting.”
R.G., 29, swore on April 21: “Shortly after the [SCHR COVID-19 class action suit] mailings arrived, approximately one-to-two weeks later, officers came into my pod and performed ‘shakedowns’ where they searched our cells and confiscated any pens they found. I personally had three pens that were confiscated during the ‘shakedowns.’ The officers said that we were no longer allowed to have pens and that pens were now contraband. I was never given a reason for the pen confiscation. After the cell searches, I also noticed that pens were no longer offered for sale on the Jail commissary. Yesterday, I asked an officer for a pen to fill out a medical form because our kiosk was not working, but he didn’t answer my request. I never received a pen. Because I can’t access a pen or any other writing utensil, I can’t write or communicate by mail. That means I cannot respond to any mail sent to me by my legal counsel. I have been in the jail since September 2, 2020, and this is the first time I have ever seen pens be confiscated.”
A.H,, 57, swore on May 7 that “I had not purchased any pens of my own, but I regularly borrowed a pen from my cellmates whenever I needed one. But after the shakedown, no one in the dorm had a pen for me to borrow. I tried to purchase one on the commissary, but pens were no longer available to buy. I have not had any access to a pen since that day. I asked an officer for the reason for the new rule regarding pens. The officer simply told me that it was ‘procedure.’ I have since asked officers when we would be allowed to have pens again, but no officer has given me an answer. Because of the new ban on pens, I have been unable to communicate by mail for over two months. I have not been able to respond by mail to my attorneys at SCHR. I have also not been able to write to my lawyers on my criminal case.”
D.S., 26, swore on May 7 that “Soon after I received my mailing from SCHR, an officer confiscated a pen from me while I was in my cell writing notes about a book I was reading. The pen that the officer confiscated was one that I had bought from the jail commissary. When I asked the officer why he confiscated my pen, he said it was for ‘safety.’ I was confused by his response, as the pens we had at the jail are flexible and collapse when you place any pressure on them. I do not see how those pens could be used in an unsafe way. It is my understanding that the reason they are so different from the rigid pens you might find in the outside world is so they cannot be used as weapons. I have been incarcerated at the jail for more than two years, and before that moment I had never seen or heard of any safety concerns related to these pens. A few days after my pen was taken form me, I tried to buy a new pen from the jail commissary. I could not buy a new pen because pens were no longer offered on the commissary list of items for sale. I have not had any access to a pen or other writing tool since my pen was confiscated around two months ago.”
M.J., 21, swore on April 29, “Not long after the [SCHR COVID-19 class-action lawsuit] mailings arrived, officers came into my pod and searched our cells. I did not know at the time what, if anything in particular, officers were searching for. Immediately after this search, I noticed that my three pens, which I had previously purchased from the jail commissary, were gone. My pens, like all pens offered by the jail commissary, were very flexible and would bend under the slightest pressure. Other men in my dorm told me that their pens were also missing immediately after the search. After the cell searches, I tried to purchase a new pen through the jail commissary. When I logged onto the kiosk, I discovered that pens were no longer offered for sale on the commissary. About four weeks after the search, officers came into my pod and told us that detainees could no longer possess pens. The officers said pens were now contraband. I never heard a reason for this new ban on pens. After officers told us that detainees can no longer possess pens, I asked an officer in the control booth if I could use a pen to fill out a form. The officer did not give me a pen.”
S.A., 55, swore on April 26, “Approximately nine weeks ago, in late February, I noticed that some men in my dorm room received a legal mailing from the Southern Center for Human Rights (SCHR). We did not all receive these mailings at once. I received this mailing a week or two later than most of the other men in my dorm. Less than a week after I received the legal mailing from SCHR, officers entered my pod and declared that pens are ‘now contraband.’ They conducted ‘shakedown’ searches of our cells and confiscated everyone’s pens. I had previously purchased two pens from the commissary that were both confiscated during the ‘shakedown.’ After the confiscation, I checked the commissary to buy a new pen, but pens were no longer listed for sale. No other writing implement was listed on the commissary as a substitute for the pens. This means that I have no access to any writing tool. I have not heard a reason for this new policy regarding pens, nor has any other detainee that I’ve spoken with. When I asked an officer about the policy approximately six weeks ago, I was not given a reason, I was told simply that this was the new policy regarding pens. I have asked officers to borrow a pen on at least 10 occasions. But I have never been given a pen, even for temporary use during my out-of-cell time. Because of this new prohibition on pens, I have not been able to communicate with my lawyer by mail. I have been in the jail for almost 18 months, since December 20, 2019, and this is the first time that I have seen any pens be confiscated.”
The American Civil Liberties Union notes, “Prisoners’ rights to read, write, speak, practice their religion, and communicate with the outside world are often curtailed far beyond what is necessary for institutional security. Not only are these activities central to the ability of prisoners to retain their humanity, but they also contribute to the flow of information between prisons and the outside world and thus provide a vital form of oversight of these closed institutions.”
However, the law distinguishes between pretrial detainees, who are awaiting trial on charges and therefore are presumed to be innocent, and prisoners, who have been found guilty in a court of law and sentenced to serve time.