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Critics contend prison system in state callous

Conditions make it easy for illness to spread, but some see human neglect by John Moritz | May 26, 2020 at 7:26 a.m.
Derick Coley, shown here with his 8-year-old daughter Adaisyah, died May 2 after testing positive for covid-19 while serving a 20-year sentence at the Arkansas Department of Corrections’ Cummins Unit. (Special to the Democrat-Gazette)

The coughing began in the bunk below where Nikki Rust slept at the McPherson Unit, Arkansas' largest women's prison, on New Year's Day 2014.

Rust's close friend and bunkmate, Jan Maier, started showing symptoms that at first appeared to be a minor cold, according to court records from a later lawsuit, but within days her symptoms grew worse: fits of coughing that kept her from sleeping and a "gurgling" sound in her chest.

Other women housed in the barracks pleaded with their guards for help. On Jan. 6, Rust wrote in her journal that her bunkmate was "deathly ill," and that she had started feeling the first signs of sickness -- coughing, aches, sneezing and a runny nose -- herself.

Maier died early in the morning on Jan. 7, according to court records, which state that she stopped breathing in her bunk. Three days later, Rust was taken to the hospital after being unable to get out of bed. She died shortly after midnight the next day. Her death certificate stated that Rust, 42, died of acute respiratory distress syndrome caused by pneumonia on Jan. 11, 2014.

For epidemiologists and corrections experts, the sudden spread of illness like that which hit the McPherson Unit six years ago -- and now with the deadly coronavirus outbreak raging at four Arkansas lockups -- is one of the unique threats that epidemics can pose to prisons, where inmates are often housed in crowded barracks, sharing bathrooms and sanitation supplies.

Yet to Rust's sister, attorney Bonnie Robertson of Little Rock, the deaths of Rust and Maier were also the result of what she said was a cavalier attitude by prison officials toward the health of inmates.

"Nikki died because they ignored her," Robertson said in an interview last week. "I'm 100% certain of that."

Rust was serving a nine-year sentence for battery out of Faulkner County, after injuring other drivers in a crash that resulted from her fleeing from police.

A copy of Rust's case report from the White River Health System, provided by Robertson, noted concerns about "epidemics of virulent influenza" at the women's prison. The hospital's report noted that a doctor at the prison, Joseph Hughes, shared concerns of "similar cases [that] started like flu like symptoms then develop pneumonia and then [acute respiratory distress syndrome] and died."

When reached for comment Friday, Hughes denied knowledge of any deaths from such symptoms at McPherson that January. "I don't recall anything you're talking about," he said, deferring further comment to the Arkansas Department of Corrections office in Pine Bluff.

The Department of Corrections, which operates the McPherson Unit and 20 other lockups in the state, did document an outbreak of influenza at McPherson in 2014, said Solomon Graves, a spokesman for the agency. However, he said no inmates were determined to have died as a result of the outbreak, which he said did not spread to other prisons.

Regarding Rust and Maier, Graves said in an email that their deaths were attributed to natural causes, but that he could not provide a more specific cause. A previous spokesperson for the department told The Associated Press in 2o14 that Rust had not tested positive for the flu.

The Department of Corrections has declined to release its pandemic response protocols, citing an exemption in the state's public records laws for prison emergency records.

Graves said those policies are reviewed annually by its top health officials and Wellpath, the agency's private health care provider.

"No single incident shapes their review of those policies," Graves said. "The experiences of our medical providers throughout the [Division of Correction, which runs the prisons], and best practices from through the correctional health care industry, are considered during the annual review."

Robertson filed a lawsuit in 2016 against more than a dozen officers at the McPherson Unit on behalf of her sister's estate, alleging that the prison's failure to adopt proper policies related to the spread of infectious diseases led to Rust's death, and that a subsequent lack of communication over her sister's health caused mental anguish for the family.

But Robertson said she then grew despondent over her sister's death and attempts to gain records from the Department of Corrections, and within a year she had handed off the case to another lawyer. Records show the lawsuit was dismissed last year due to inactivity.


Arkansas' prison system houses close to 16,000 inmates, of whom 1,190 have tested positive for covid-19 as of Sunday, according to the Health Department. Eight inmates have died.

In addition to state prisons, hundreds of inmates have tested positive at a federal prison complex in Forrest City, and 63 have been infected at a state parole and probation center in Little Rock.

The spread of the virus through two state prisons, the Cummins and Randall L. Williams units, has come at a rapid pace.

Just days after the first case was identified at the Cummins Unit in mid-April, testing revealed that coronavirus had infected 44 of 47 inmates in a single barracks, and quickly grew to more in other barracks. Similarly, cases at the Randall L. Williams Unit numbered at least 45 when the outbreak was first detected there.

At both prisons, health officials have declared success at containing the virus to certain wings or units, only to have to backtrack days later and order more tests upon the discovery of new cases.

Earlier this month, Robertson began representing Cece Tate, the girlfriend of Derick Coley, a 30-year-old inmate from Magnolia who died at the Cummins Unit on May 2 after testing positive for covid-19. Coley was serving a 20-year sentence for committing a terroristic act in relation to a shooting.

Robertson is helping Tate seek records from an autopsy performed on Coley's body.

The attorney said she does not have enough information to form an opinion on whether his death -- or seven other deaths at the Cummins Unit attributed to the coronavirus -- could have been prevented by swifter action by the prison staff.

"The circumstances are strange surrounding his death," Robertson said.

According to a Lincoln County coroner's report, Coley had tested positive for covid-19. The report also stated that "due to a prison incident involving other prisoners burning trash cans and breaking glass," Coley was being moved by officers to another part of the prison when he had a "medical episode" that caused him to be taken to the infirmary, where he died shortly before midnight.

Nikki Rust (Special to the Arkansas Democrat-Gazette)

Dexter Payne, director of the Division of Correction, confirmed the disturbance while speaking at Gov. Asa Hutchinson's May 4 near-daily news conference on the pandemic in Arkansas.

Payne said the incident was "quelled" by the agency's emergency response team and no inmates or staff members were hurt.

Tate, Coley's girlfriend and the mother of their 8-year-old daughter, said she received an early morning call May 3 from the Cummins Unit chaplain informing her of Coley's death.

"They had called an ambulance and I think it was on its way, but the doctor pronounced him dead," Tate recalled being told.

Speaking with prison officials that Sunday, Tate said she was told she needed to make a decision by the next day -- just two days after Coley's death -- whether to claim the body or have the prison cremate it. She said she was put in touch with Robertson through the American Civil Liberties Union, after which Robertson sent a letter to Corrections Secretary Wendy Kelley requesting an autopsy on Coley's body and access to his medical records.

In a series of communications over subsequent days, prison officials agreed to request an autopsy from the state medical examiner, but declined to release Coley's records to Tate because she was listed as Coley's "alternate" emergency contact, according to emails provided by Robertson and a statement by Graves, the department spokesman.

After several days of searching, Robertson said she was able to locate Coley's primary emergency contact, an ex-girlfriend who Robertson said agreed to waive her rights to Coley's records. As of Friday, Robertson said the release of Coley's medical records is pending the submission of a release form signed by Tate.

"Initially, we could not reach the designated primary," Graves said in a statement to the Democrat-Gazette. "The primary was finally located. The primary declined to exercise their rights and signed an acknowledgement to the same. We then notified the Alternate's attorney that we would recognize [Tate] as the primary and would release the requested records."

In an interview Thursday, Tate said she believed the staff at the Cummins Unit could have done more to help Coley.

During her last conversation with Coley on April 10 -- two days before the Department of Corrections confirmed the first case of the virus at the prison -- Tate said her boyfriend told her he'd been having several symptoms for two weeks, including diarrhea, nausea, fever and a loss of appetite.

The two spoke about the Easter baskets she had purchased for her children, Tate said, and she recalled a quote from Ike Turner's character in the movie What's Love Got to Do With It, telling Coley, "If you die on me, I'll kill you."

"After I told him that, he went to laughing," Tate said.

When Tate called to check on Coley two weeks later, she said she was told he had tested positive for covid-19 and that he'd been given Tylenol to help with the symptoms.

"I just wish they'd do better by the other prisoners so nobody else has to die," Tate said.


Prison officials, including Payne, have defended the state prison system's response to the covid-19 pandemic by pointing out a number of actions they have taken to stop the spread of the virus, including sewing tens of thousands of masks for inmates, providing inmate porters with extra disinfectant to clean living quarters, and having inmates in crowded open barracks sleep head-to-foot to create more space between people.

Visitation at all prisons was suspended March 16, and since then staff members have been required to have their temperatures checked upon reporting to work. However, some covid-positive employees are being asked to keep working at the Cummins Unit due to staff shortages.

In addition, Hutchinson has expedited parole consideration for more than 1,200 inmates who committed nonviolent, nonsexual offenses, resulting in more than 300 releases to date.

Still, Robertson said it's unclear what lessons, if any, the department has learned from previous outbreaks, such as the one at the McPherson Unit in 2014.

After Rust's death, the Department of Corrections quarantined her barracks as well as another housing unit and sent more medical personnel to the prison, according to statements made by a department spokesperson at the time.

"Did they kind of wake up ... once the second girl was gone? Yeah, I guess they did," Robertson said.

Robertson said she has been frustrated by what she described as stonewalling by prison officials over access to Coley's records. She said the experience was reminiscent of her sister's illness and death, during which time she said no one at the McPherson Unit alerted her family of problems with her sister's health even while she was hospitalized for 12 hours before she died.

David Maier, the brother of Rust's bunkmate, Jan Maier, also said he was never notified that his sister was sick before she died in 2014.

"It had been a couple of weeks since I was able to visit my sister and was unaware that she was even sick during that time," Maier said in an email. "I do not recall being informed of the cause of the illness that forced her to be bedridden for several days prior to her death.

"The word 'virus' was never mentioned to me at the time. I received a phone call from a lady at the prison at 3 am in the morning that my sister had a pulmonary embolism and died after attempts to resuscitate her failed. That was all the information I received except for the instructions where and when to pick up her cremains."

A year after her sister's death, Robertson said she lobbied lawmakers and prison officials to give family members better access to inmate medical records.

The result, Robertson said, was a new department regulation that took effect in 2018, allowing inmates to designate a person to be given access to their medical and mental health records upon their death.

Kermit Channell, director of the state Crime Laboratory, said full autopsy reports typically take 60 to 90 days as toxicology tests are processed.

In the meantime, Robertson said prison officials again contacted Tate on May 5 asking her to make a decision on the disposition of Coley's body after the autopsy. Tate authorized cremation, and the cremains have been turned over to her, she said.

Tate said Coley had told her he wanted to be cremated, but she added that she also felt pressured by officials into making the decision quickly.

"I knew I didn't have the money to go get the body," Tate said.

Information for this article was contributed by Eric Besson of the Arkansas Democrat-Gazette.

SundayMonday on 05/26/2020


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