Parchman Emergency Motion

Case: 4:20-cv-00007-DMB-JMV Doc #: 11 Filed: 01/23/20 1 of 17 PageID #: 35
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
MICHAEL AMOS, PITRELL BRISTER,

ANTONIO DAVIS, WILLIE FRIEND, CHARLES
GAYLES, DANIEL GUTHRIE, JONATHAN J.
HAM, DESMOND HARDY, BILLY JAMES, JR.,
JUSTIN JAMES, QUENTEN JOHNSON, Case No. 4:20-CV-007-DMB-JMV
CHALLIS LEWIS, DEAUNTE LEWIS, LARRY
MAXWELL, TERRANCE MCKINNEY,
DERRICK PAN, BRANDON ROBERTSON,
KURIAKI RILEY, DERRICK ROGERS, TYREE
ROSS, H.D. ALEXANDER SCOTT, DEANGELO
TAYLOR, LEMARTINE TAYLOR, CONTI
TILLIS, DEMARCUS TIMMONS, CARLOS
VARNADO, PHILLIP DECARLOS WEBSTER,
ADRIAN WILLARD, and CURTIS WILSON,
Plaintiffs,
v.
PELICIA E. HALL, in her official capacity as the

Commissioner of the Mississippi Department of
Corrections, and MARSHAL TURNER, in his
official capacity as the Superintendent of the
Mississippi State Penitentiary,
Defendants.
PLAINTIFFS’ EMERGENCY MOTION FOR

TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs Michael Amos, Pitrell Brister, Antonio Davis, et al. (“Plaintiffs”), as and for
their Emergency Motion for Temporary Restraining Order and Preliminary Injunction (the
“Emergency Motion”), pursuant to Rule 65 of the Federal Rules of Civil Procedure, against
Defendants1 Pelicia Hall (“Hall”), in her official capacity as the Commissioner of the Mississippi
Department of Corrections, and Marshal Turner (“Turner”) (together with Hall, “Defendants”),
in his official capacity as the Superintendent of the Mississippi State Penitentiary, allege, on the
basis of personal knowledge and on information and belief where indicated, as follows:
PRELIMINARY STATEMENT
Plaintiffs are inmates at the Mississippi State Penitentiary at Parchman, Mississippi
(“Parchman”), a century-old maximum security prison built on the site of a former plantation.
Over the last twenty-six (26) days, eight (8) of their fellow inmates have died as a result of the
inhumane and torturous conditions in which they are being held. There is no room for mistake or
ambiguity: the situation at Parchman is an ongoing and lethal humanitarian crisis. Without this
Court’s immediate intervention, more people will die, injuries will worsen, and conditions will
further deteriorate.
Plaintiffs recognize that there are people incarcerated at Parchman for due cause and that
some may be considered a danger to society. We are simply asking that Plaintiffs and their
fellow inmates be allowed to serve their sentences as human beings and not animals. The relief
Plaintiffs seek will not lessen any prisoner’s sentence by so much as a day. Nor does this Motion
ask this Honorable Court to second-guess the discretionary authority of Parchman officials;
commandeer the legislature’s determinations as to Parchman’s funding; or otherwise insert the
judicial power of the United States where it does not belong. Plaintiffs ask the Court only to
1
On January 20, 2020, Defendant Pelicia Hall resigned her post as the Commissioner of the Mississippi Department
of Corrections. Plaintiffs will file an amended complaint naming Tommy Taylor, the new Commissioner of the
Mississippi Department of Corrections, in his official capacity.
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apply and enforce a well-established constitutional rule: that prisoners are human beings at the
mercy of the State who are entitled to safe, healthy, and humane living conditions. The remedial
action sought by this Motion is well within the Court’s power to grant, and urgently needed if
Plaintiffs’ constitutional rights—and, indeed, their lives—are to be afforded basic respect.
STATEMENT OF FACTS
Parchman is operating in a perpetual state of crisis, where prisoners live in barbaric and
horrific conditions and their basic human rights are violated daily. Grossly inhumane conditions
have cost many prisoners their health, and their sanity, and even their lives. Knowledge of these
heinous conditions is and has been widespread for many years by officials at the Mississippi
Department of Corrections (MDOC). Even so, prison officials have consistently failed to
take reasonable and necessary steps to protect the prisoners in their charge. In less than a
month’s time, since January 1, 2020, eight (8) prisoners incarcerated at Parchman have died.2
These deaths are a direct result of Mississippi’s utter disregard for the people it has incarcerated
and their constitutional rights. As this State has incarcerated increasing numbers of people, it has
dramatically reduced its funding of prisons. Nearly half of the prison guard slots for
Mississippi’s prison remain unfilled. Parchman—Mississippi’s oldest prison and only
maximum-security facility for males—has only one-quarter of the corrections officers needed.
Understaffing and lack of adequate shelter, food, and health care services exacerbates
tension, stress, and competition for resources among inmates. MDOC has been incapable of
protecting inmates at Parchman’s chronically understaffed correctional facilities from harm in
2
Thomas Lee, age 49, died January 22, 2020 at MSP (Unit 29) due to suspected suicide; Timothy Hudspeth, age 35,
died January 21, 2020 at MSP (presumably Unit 30) as a result of blunt force trauma; James Talley, age 36, died
January 21, 2020 at MSP (presumably Unit 30) as a result of blunt force trauma; Gabriel Carmen, age 31, died
January 19, 2020 at MSP (Unit 29) due to suspected suicide; A.D. Mills, age 42, died January 8, 2020 at MSP (Unit
29); Denorris Howell, age 36, died January 3, 2020 at MSP (Unit 29) as the result of multiple stab wounds;
Roosevelt Holliman, age 32, died January 2, 2020 at MSP (Unit 29) as the result of multiple stab wounds; Walter
Gates, age 29, died January 1, 2020 at MSP (Unit 29) as the result of multiple stab wounds.
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this environment, resulting in inmate assaults, deaths, and prison breaks. The unthinkable spate
of recent deaths is without doubt a gross culmination of systemic neglect, continual
understaffing, and utterly inhumane conditions—the impact of which is readily apparent.
For three days this week, undersigned counsel was denied access to their clients. During
those three days, three more inmates died, including one by suicide while counsel was on the
facility grounds. The actual conditions at Parchman, especially in Unit 29, are far more appalling
and egregious than what has been reported in the media. Because MDOC has failed to provide
safe and sanitary living conditions for the inmates, requisite medical care, and adequately staff
and compensate correctional officers, the humanitarian crisis at Parchman is at a boiling point
and will only lead to more loss of life if not addressed immediately. As the attached
Affirmations make clear, the most shocking issues include, but are not limited to: 3
 Inmates in Unit 29 have not been allowed to shower since Christmas Day, December 25,
2019.
 Certain inmates and Plaintiffs are being denied visits to the medical unit for daily or
critical care; and, for some, weeks have gone-by without medication.
 There is only one guard (usually female) for each building (160 inmates) at Unit 29.
 Rats and cockroaches crawl over inmates while they sleep and attack their food.
 Toilets overflow with sewage which spills out and remains on the floors.
 Potable water from available sources is contaminated with human waste and brown in
color.
 Rain leaks from the roof streaming through multiple cells and causing black mold to
grow on walls and surfaces where inmates sleep.

3
See Exhibit A, Redacted Affirmations of Inmates at Parchman, attached hereto. Affirmations are redacted due to
the extraordinary circumstances of the case and out of fear for their safety. Unredacted versions can and will be
provided to this Honorable Court en camera.
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 There are no meals at times, and sometimes only one per day.
 When served, the “food” is cold, rotten, and often containing rocks, insects, bird
droppings, and rat feces.
 Lone guards can’t, and won’t, enter Unit 29 buildings to prevent violence or even render
much needed emergency medical assistance.
 Finally, inmates are resorting to setting fires to compel officials to enter their building
and, hopefully, render life-saving care to fellow inmates who are sick and dying.
ARGUMENT
I. Standard for Relief
It is well-established that courts should grant preliminary injunctive relief where the
movant can show the following:
(1) a substantial likelihood of success on the merits; (2) a substantial threat that
the movant will suffer irreparable injury if the injunction is denied; (3) that the
threatened injury outweighs any damage that the injunction might cause the
defendant; and (4) that the injunction will not disserve the public interest.
Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 452 (quoting Hoover v. Morales, 164
F.3d 221, 224 (5th Cir. 1998)). The same standard applies to both a temporary restraining order
and a preliminary injunction. Clark v. Pritchard, 812 F.2d 991, 993 (5th Cir. 1987).
II. Plaintiffs Exceed the Threshold for Temporary and Preliminary Injunctive Relief
Under the circumstances of this case, Plaintiffs have more than met the threshold to
justify temporary and preliminary injunctive relief from this Court.
A. Plaintiffs are Substantially Likely to Prevail on the Merits
1. The Inhumane Conditions of Plaintiffs’ Detention Violate the Eighth and

Fourteenth Amendments
-5-
The Eighth Amendment’s categorical ban on cruel and unusual punishment “prohibits the
imposition of inherently barbaric punishments under all circumstances.” Graham v. Florida, 560
U.S. 48, 58 (2010) (citing Hope v. Pelzer, 536 U.S. 730 (2002)). This requirement has long been
held to apply to the conditions of prisons and the treatment of prison inmates, and to require
prison officials to respect inmates’ basic rights. Farmer v. Brennan, 511 U.S. 825, 832 (1994).
The Supreme Court has stated in simple terms that “[a] prison that deprives prisoners of basic
sustenance, including adequate medical care, is incompatible with the concept of human dignity
and has no place in civilized society.” Brown v. Plata, 563 U.S. 493, 511 (2011). At absolute
minimum, the Eighth Amendment requires prison officials to provide “humane conditions of
confinement,” including “adequate food, clothing, shelter, and medical care . . . [as well as]
‘reasonable measures to guarantee the safety of the inmates.’” Id. (quoting Hudson v. Palmer,
468 U.S. 517, 526-27 (1984).4 Conditions at Parchman have deteriorated far past this point.
Indeed, the inmates at Units 29 and 30 in particular—including Plaintiffs—have been
systematically denied the most basic humane considerations. The Fifth Circuit and other
appellate courts have repeatedly found the Eighth Amendment violations in far less egregious
cases.
A claim that prison officials’ conduct violates the Eighth Amendment must meet two
conditions. First, the deprivation or violation at issue must be “‘sufficiently serious’; a prison
official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s
necessities.’” Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999) (quoting Farmer v.
Brennan, 511 U.S. at 834). Second, the official must have the requisite culpable state of mind: in
this case, “one of deliberate indifference to inmate health or safety.” Palmer, 193 F.3d at 352
4
The Eighth Amendment’s ban on cruel and unusual punishment applies to the states via the Fourteenth
Amendment. State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947).
-6-
(citing Farmer, 511 U.S. at 834). To establish this state of mind, a plaintiff must show that the
officials “(1) were aware of facts from which an inference of an excessive risk to the prisoner’s
health or safety could be drawn and (2) that they actually drew an inference that such potential
for harm existed.” Palmer, 193 F.3d at 352 (quoting Bradley v. Puckett, 157 F.3d 1022, 1025
(5th Cir. 1998)).
Crucially, although the test involves officials’ subjective knowledge of the risks at issue
(such that merely failing to notice a significant risk may not establish liability), the required
knowledge can be shown by inference from circumstantial evidence, as well as the
straightforward fact that the risk was obvious. Hinojosa v. Livingston, 807 F.3d 657, 665 (5th
Cir. 2015) (citing Farmer, 511 U.S. at 842-43). Such a finding is particularly appropriate where,
as with Parchman, the risk at issue was “longstanding, pervasive, well-documented, or expressly
noted by prison officials in the past, and the circumstances suggest that the defendant official had
been exposed to information concerning the risk and thus ‘must have known’ about it . . . .” Id.
Consequently, a plaintiff need not delve into an official’s internal thoughts to establish a culpable
state of mind: he or she need only present the Court with sufficient evidence that the official
must have known of the excessive risk.
Both of the foregoing prongs are easily met under the circumstances. Evidence
establishes beyond doubt that the privations taking place at Parchman are severe beyond any
acceptable minimum standards, and certainly rise to the level of denial of the minimal civilized
measure of life’s necessities,’ as Fifth Circuit precedent requires.
Lack of Basic Safety and Protection from Violence
It is well-established that prison officials’ Eighth Amendment duties toward prisoners
include the duty to protect them from violence, including at one another’s hands. Farmer, 511
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U.S. at 833 (“[A]s the lower courts have uniformly held, and as we have assumed, ‘prison
officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.’”)
(quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). Defendants
and the officials at Parchman have utterly failed to do so, and their failures of protection are self-
evidently severe enough to constitute an Eighth Amendment violation. There have been eight
deaths at Parchman since January 1, 2020; and, Plaintiffs ask the Court to take judicial notice of
the extraordinarily troubling and haunting accounts of violence and risk to human life contained
in official reports, information releases, and statements released by State officials and agencies
over the past few weeks. The State of Mississippi’s failure to protect the safety and well-being
of Parchman inmates under the Eighth Amendment would unquestionably withstand summary
judgment under the present circumstances.
Denial of Urgent Medical Care
It is beyond dispute that prisoners are entitled to provision of adequate medical care to
address their needs. Brown v. Plata, 563 U.S. 493, 510-11 (2011). See also Order and Judgment
of Civil Contempt, Parsons v. Ryan, Case No. 2:12-CV-00601-DKD (D. Ariz. June 22, 2018),
ECF No. 2898 (finding Arizona state prison officials in civil contempt for repeatedly failing to
meet court-imposed requirements to improve critical flaws in system providing healthcare
services to inmates). Due to understaffing, lack of funding, or simple disregard for prisoners’
well-being, Plaintiffs have been consistently denied necessary medical care, including needed
medications. Each day, they grow sicker and inch closer to death.
No better evidence of this crisis exists than the fires set by some prisoners in Unit 29.
They are not, as has been reported, the result of “gang-violence”, but rather a last and desperate
attempt to force their lone guard to enter the Unit building so that sick and dying inmates might
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receive emergent medical care. To be clear, people are setting fires in the locked room from
which they cannot escape in order to save their fellow inmates.
Critical Lack of Sanitation and Hygiene
Prisoners described poor plumbing conditions, stating that toilets are often broken,
overrun, backup and overflow. They do not flush properly preventing waste disposal and causing
the units to flood with sewage and smell like urine and feces. Potable water from available
sources is contaminated with human waste and brown in color. The Eighth Amendment also
requires prison officials to maintain basic levels of sanitation and hygiene for prisoners and the
facilities in which they are held. See, e.g., Harper v. Showers, 174 F.3d 716, 720 (5th Cir. 1999)
(affirming that “housing in filthy, unsanitary cells” could constitute a violation of the Eighth
Amendment as a matter of law). Such conditions are a flagrant violation of Defendants’
obligation to provide humane, basic sanitation for inmates. Gates v. Cook, 376 F.d 323 (5th Cir.
2004).
Exposure to Extreme Temperatures
The Fifth Circuit has repeatedly and unambiguously held that prison conditions that
expose inmates to extreme temperatures—whether heat or cold—are severe enough to violate the
Eighth Amendment. See Hinojosa v. Livingston, 807 F.3d 657, 665 (5th Cir. 2015) (“ We have
held that exposing an inmate to extreme cell temperatures can constitute cruel and unusual
punishment.”) (collecting cases); Beck v. Lynaugh, 842 F.2d 759, 761 (5th Cir. 1988) (finding
that prisoners stated valid Eighth Amendment claim for detention over the winter in cells missing
window panes, without blankets or coats).
Parchman is utterly without sufficient means to protect the inmates from extreme cold.
The heat in Unit 29 is not functioning; blankets have not been made available since November
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2019; and the building itself cannot retain heat or keep out conditions that worsen the cold,
because the windows do not close, there are holes in the walls (allowing in wind and rain), and
the ceilings leak when it rains. As the Court is well aware, it is mid-January as of the time of
filing, and near-freezing temperatures at night are common.
Such facts are more than sufficient to establish an Eighth Amendment violation. In
Palmer v. Johnson, 193 F.3d 246 (5th Cir. 1999), the Fifth Circuit found such a violation where
officials forced several dozen inmates to sleep outdoors in the open for a night without blankets
or jackets, while “the temperature fell below fifty-nine degrees Fahrenheit.” Id. at 349. Here,
Plaintiffs have been exposed to much lower temperatures, and that repeatedly for weeks or
months rather than a single night. Plaintiffs do not have blankets or other means of keeping
warm, any more than the prisoners in Palmer did. Plaintiffs’ being held in their cells rather than
sleeping outside as in Palmer is irrelevant: because the cells lack artificial heating and cannot
keep out the cold or the elements, Plaintiffs might as well be outside for all the protection they
have. In short, since the facts of Palmer sufficed to violate the Eighth Amendment, the much
longer exposure to cold in this case a fortiori is unconstitutional as well. It bears noting, as well,
that the Fifth Circuit’s established the position that exposure to extreme temperatures is cruel and
unusual is consistent with that of its sister circuits. See Dixon v. Godinez, 114 F.3d 640 (7th Cir.
1997) (finding Eighth Amendment violation on the basis of excessive cold where inmates had
inadequate heating and had to rely on standard clothing in conditions where the average
temperature was forty degrees for prolonged periods).
Food Unfit for Human Consumption
There are no meals at times, and sometimes only one per day. When finally delivered, the
“food” is cold, rotten, and often containing rocks, insects, bird droppings, and rat feces.
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Any one of the above categories suffices to establish that conditions at Parchman are
severe enough to violate the Eighth Amendment. Together, they are mutually reinforcing: courts
must consider inadequate prison conditions in their entirety, not piecemeal. See Wilson v. Seiter,
501 U.S. 294, 304-05 (1991) (stating that untenable conditions may establish an Eighth
Amendment violation even if each would not do so in isolation if they have a mutually-
reinforcing effect, e.g. low cell temperatures coupled with lack of blankets).
Moreover, the facts establish that prison officials are fully and subjectively aware of the
facts regarding conditions at Parchman. First, the evidence makes clear that inmates have alerted
guards and other officials to their specific grievances many times, to no avail, or that guards have
personally been present when violations have occurred. Indeed, prisoners have worked in good
faith—it bears repeating, under incredibly difficult conditions—to submit grievances through the
Administrative Remedy Program and thus alert the appropriate officials to the grave problems
taking place. Yet, the complete breakdown in the systems at Parchman has rendered that process
completely unavailable and inaccessible. Second, the facts are clear that the unconstitutional
conditions at issue are obvious, unmistakable, and plain. Pervasive black mold, rat and roach
infestations, and a lack of heating systems are conditions that prison officials could not possibly
fail to notice. As demonstrated throughout this motion, the totality of the circumstances and
conditions at Parchman are causing Plaintiffs to suffer irreparable harm absent immediate relief.
B. The Harm Plaintiffs Face if Injunctive Relief is Not Granted Significantly

Outweighs Any Prejudice to Defendants
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As noted above, Plaintiffs are being held in unconscionable conditions in violation of the
Eighth Amendment. Deaths, including murder, suicide, and upon information and belief, deaths
by sickness alone, have been a regular occurrence for weeks as a direct result. Even those whose
lives are not in acute danger face ongoing threats to health and safety, and unconstitutionally
harsh living conditions in general, as a result of factors such as the extreme cold, the long-
standing exposure to raw sewage, the inedible food, and the lack of medical care, to name a few.
At an absolute minimum, it is a truism that Plaintiffs have a constitutional right not to be held in
conditions that violate the Constitution, and that right will continue to be violated if this Court
does not grant relief. Every additional minute Plaintiffs spend in these unconstitutional and
unbearable conditions is prejudicial.
No countervailing prejudice to Defendants would occur as a result of granting the
Motion, and even if it did, it could not conceivably outweigh the immense prejudice that
Plaintiffs will suffer if this Court denies relief. See, e.g., Rufo v. Inmates of Suffolk Cty. Jail, 502
U.S. 367, 396 (1992) (“the lack of resources can never excuse a failure to obey constitutional
requirements”); Henderson v. Stadler, 112 F.Supp.2d 589, 602 (E.D. La. 2000), overruled on
other grounds, 287 F.3d 374 (5th Cir. 2002) (injury to constitutional rights outweighs monetary
costs).
It is true that restoring Units 29 and 30 of Parchman to humane conditions could entail
significant expense and time. But that is not what is before the Court. The most immediate
priority for Plaintiffs is that an impartial and reliable figure, unaffiliated with the state
government or prison administration, be able to see conditions at Parchman firsthand and
unvarnished and decide on appropriate next steps, and that Plaintiffs be able to meet with their
attorneys.
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C. Injunctive Relief Will Serve the Public Interest
Finally, it is readily apparent that the relief Plaintiffs seek will promote the public
interest. By definition, “[i]t is always in the public interest to prevent the violation of a party’s
constitutional rights.” Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir.
2014) (citing Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012), and upholding injunction).
Furthermore, the public has a straightforward interest in ensuring that taxpayer-funded prisons
are run humanely and in a manner consistent with the Constitution. As such, granting the
requested relief will vindicate the public interest.
III. Plaintiffs Are Indigent Prisoners and Should Not Be Required to Post a Bond
Rule 65(c) of the Federal Rules of Civil Procedure, pursuant to which this Motion is
brought, ordinarily requires that movants seeking a preliminary injunction post security “in an
amount the Court considers proper” before the injunction may be issued. However, the amount
of such a bond is fully within the discretion of the Court, which is free to require no such bond at
all if the situation warrants. See, e.g., Corrigan Dispatch Co. v. Casa Guzman, S.A., 569 F.2d
300, 302-303 (5th Cir. 1978) (cited approvingly in Gordon v. City of Houston, Texas, 2015 WL
138115, at *16 (S.D. Tex. January 9, 2015)). Plaintiffs in this matter are indigent and do not
have the resources to post a bond. Accordingly, Plaintiffs respectfully request that the Court
exercise its broad discretion to waive posting security as to this Motion, or alternatively, impose
a purely nominal bond.
IV. Relief Requested
Because the unconstitutional conditions at the prison are pervasive, diverse, and
longstanding, Plaintiffs must ask this Court to craft a multi-faceted injunction to fully and fairly
address the needs of this case.
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First and most immediately, Plaintiffs ask that, upon such notice to Defendants as it may
deem appropriate, the Court hold an evidentiary hearing on the record at Parchman itself so that
the Court may speak with inmates in person and inspect the facilities. Despite the best efforts of
Plaintiffs’ counsel to convey the situation at Parchman, it is impossible to accurately represent
the state of the prison in writing. An accurate picture requires in-person inspection.
Though the request may seem unusual, at least one district court recently applied
precisely this remedy in extremely similar circumstances. In Federal Defenders of New York,
Inc. v. Federal Bureau of Prisons, Case No. 19-CV-660 (E.D.N.Y. Feb. 4, 2019), plaintiffs
sought emergency relief on behalf of their clients detained at the Metropolitan Detention Center
(“MDC”) in Brooklyn, New York, after access to counsel had been restricted for days. Id., ECF
No. 1 (complaint alleging Sixth Amendment violations due to detainees’ prevention from
meeting with counsel), 5 (memorandum in support of temporary injunction). Although facts
were initially confused, it first became clear that the MDC had suffered a power outage, then that
conditions at the prison had become intolerable due to the lack of power. Attorneys learned that
inmates were not only cut off from counsel, but their cells were without heat or hot water, and
they lacked laundry service, electric lights, and access to the commissary. See id., ECF No. 7 at
¶¶ 8-11 (attorney affirmation describing status of detainees). Notably, officials from the Federal
Bureau of Prisons consistently either refused to confirm the situation or suggested that the
inmates were lying about conditions. Id. at ¶¶ 12-18. Nevertheless, District Judge LaShann Hall
granted emergency relief in that case the same day it was sought, restoring counsel’s access to
clients. Id., ECF No. 9 (Memorandum and Order granting temporary injunctive relief). The
following day, in light of the ongoing dispute over conditions at MDC, District Judge for the
Southern District of New York Analisa Torres adjourned an evidentiary hearing in two parallel
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cases, U.S. v. Segura-Genao, Case No. 18-CR-219, and U.S. v. Perez, No. 17-CR-513, in order
to visit the MDC in person. A true and correct copy of the transcript of the evidentiary hearing,
including proceedings at the MDC, is attached hereto as Exhibit B.
Judge Torres’ inspection, conducted fully on the record and including numerous
conversations with inmates at the MDC confirmed that, contrary to the Bureau of Prisons’
assurances, conditions at the MDC were unacceptable. At the height of winter, inmates were
without power and heat, and prisoners’ medical needs had gone ignored by prison officials for
days or weeks. See, e.g., Exhibit B at 176:1-23 (prisoner with colitis and mental health issues
was denied medical care for bleeding rash). The MDC facility itself was in disrepair in places,
due to factors such as ongoing water leaks. Id. at 170:1-4. Conditions are comparable at
Parchman if not worse, and similar relief is therefore called for. This Court must examine the
prison in person if it is to gain a full understanding of the circumstances.
Plaintiffs stress that this is not intended to sway the Court or introduce emotional
elements into its judgment. Rather, Plaintiffs submit that this Court not only has the right and
ability to inspect Parchman, but that doing so is necessary for the Court’s full and accurate
review of the facts. Moreover, review of the state of the prison and inmates by an impartial
arbiter is not prejudicial to Defendants: they do not stand to bear any burden or expense as a
result, nor is it inherently unfair for the Court to see the facilities Defendants are responsible for
firsthand.
Following the Court’s in-person examination of Parchman, the Court should appoint an
appropriate special master or independent monitor to assume control of day-to-day operations.
Such an individual should be able to step into the shoes of the warden, with all corresponding
power to make the changes required to render Parchman livable, or at a minimum, remove
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Plaintiffs from their life-threatening conditions. The Mississippi Department of Corrections and
the current administration of Parchman is responsible for the state of the prison, and there is no
indication that they have the resources, energy, or inclination to correct it. Third-party
intervention is critical if conditions are to be restored to a livable minimum.
Due to the emergency nature of the relief sought herein, counsel has not had an
opportunity to confirm whether Defendants oppose the instant motion.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that this Honorable Court
grant the instant Motion and provide the relief sought herein and any other such relief that the
Court deems to be just and appropriate under the circumstances.
Respectfully submitted,
/s/ Marcy B. Croft

Marcy B. Croft (MS Bar #10864)
MARON MARVEL BRADLEY ANDERSON
& TARDY LLC
200 South Lamar Street
Jackson, MS 39201
Telephone: (601) 960-8630
Telefax: (601) 206-0119
ATTORNEY FOR PLAINTIFFS
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 23, 2020, a copy of the foregoing pleading was
filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will
be sent to all counsel of record registered to receive electronic service by operation of the
Court’s electronic filing system.
/s/ Marcy B. Croft

Marcy B. Croft (MSB# 10864)
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Case: 4:20-cv-00007-DMB-JMV Doc #: 11-1 Filed: 01/23/20 1 of 16 PageID #: 52
EXHIBIT A - REDACTED
AFFIRMATION OF
PARCHMAN INMATES
EXHIBIT B - TRANSCRIPT OF
EVIDENTIARY HEARING
Case: 4:20-cv-00007-DMB-JMV Doc #: 11-2 Filed: 01/23/20 2 of 29 PageID #: 69 162
J257SEG5
1 visit, depending how things unfold.
2 UNIDENTIFIED REPORTER: Excuse me, on behalf of the
3 journalists present, is it possible for one of us to accompany
4 you on your trip?
5 THE COURT: No. Anything further?
6 MR. SPILKE: Yes, your Honor. We just ask that the
7 Court take judicial notice of the weather the week starting
8 Sunday, January 27 through February 3. And we have an Exhibit
9 HH that we passed up that records the temperature taken from
10 The Weather Channel.
11 THE COURT: Have you shown that to your adversary?
12 MR. SPILKE: Yes.
13 THE COURT: Is there any objection?
14 MS. BRETZ: No, your Honor.
15 THE COURT: All right then, if you would hand up the
16 exhibit, it's been marked as Defendant's Exhibit HH, it is
17 admitted, and I will take judicial notice of the temperature
18 recorded on the exhibit.
19 (Defendant's Exhibit HH received in evidence)
20 All right then we are going to adjourn for now, and we
21 may be resuming later.
22 (Recess)
23 (Continued on next page)
24 THE COURT: We are now at the MDC. It's five minutes
25 to five. Because of the disparate accounts offered by
SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300
J257SEG5
1 defendants and the Bureau of Prisons, I ordered evidentiary
2 hearing and visit to the MDC in order to assess the conditions
3 facing inmates housed here. I plan to inspect the west side of
4 the sixth and seventh floors and the SHU. If someone would
5 like me to tour another area of the MDC, please tell me now.
6 We are accompanied by an official court reporter. I
7 would like the attorneys to make their appearances, please.
8 MR. SPILKE: Ezra Spilke, along with --
9 MS. KUNSTLER: Sarah Kunstler on behalf of Wilson
10 Perez.
11 MR. OLIVER: Gideon Oliver.
12 MR. OESTERICHER: Jeff Oestericher with the U.S.
13 Attorney's office, Southern District of New York.
14 MS. BRETZ: Emily Bretz, U.S. Attorney's office of the
15 Southern District of New York.
16 THE COURT: I would like the non-attorneys to identify
17 themselves one by one. We will start to my left.
18 MS. PASCULLI: Victoria Pasculli.
19 MS. KENYON: Emily Kenyon, law clerk.
20 MR. MONTGOMERY: Dan Montgomery, law clerk.
21 MS. GOLD: Paula Gold, court interpreter.
22 MR. ROSS: Supervisor Special Agent John Ross from
23 EDNY.
24 MS. VON DORNUM: Deirdre von Dornum, attorney in
25 charge Federal Defenders.

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1 MS. JAMES: Letitia James, Attorney General.
2 MS. LEVY: Jennifer Levy from the office of the
3 Attorney General.
4 MR. CHERNOFF: Harry Chernoff from the U.S. Attorney's
5 office criminal division, and I am an attorney.
6 THE COURT: If I or an attorney would like to make a
7 comment or ask a question, we will stop so that the
8 stenographer may record such comments or questions. You may
9 ask questions of inmates. I just want to make sure that they
10 are taken down by the stenographer.
11 When we return to the courtroom, I'm going to call
12 Ms. von Dornum back to the stand so that she may compare the
13 current conditions with those she observed during her visit to
14 MDC on February 1, 2019. I will recall Inspector Ross for the
15 same purpose.
16 Should I be calling you Special Agent Ross?
17 MR. ROSS: Either way, that's fine, your Honor. It's
18 OK.
19 THE COURT: I am focusing on the status of lighting,
20 heat and medical attention. At the end of the tour I'm going
21 to ask Mr. Spilke and Ms. Kunstler what specific relief they
22 are seeking from the Court. I will repeat that question in the
23 courtroom after Ms. von Dornum and Special Agent Ross testify.
24 Any questions before we start?
25 OK. Let's go.

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1 MS. VON DORNUM: I'm sorry. I would just ask that if
2 any defendant plans to speak about their criminal case, that we
3 stop that.
4 THE COURT: Absolutely, I will not permit them to
5 speak on that.
6 All right. So we are now in the SHU with warden Quay,
7 and I would like Ms. von Dornum and Special Agent Ross to point
8 out to me anything that you think that I should take note of as
9 we tour the facility.
10 MS. VON DORNUM: Yes, your Honor. I would already
11 note that when we were here before it was dark in this area,
12 dimly lit and significantly cooler.
13 MR. ROSS: This is warm.
14 MS. VON DORNUM: This is warm compared to what it was.
15 The medical room also did not have lights at all, and the
16 lieutenant had indicated to us that it was difficult to give
17 medical treatment to the SHU inmates because there wasn't even
18 light in that medical room.
19 THE COURT: You are pointing to the medical room?
20 MS. VON DORNUM: Yes, the medical room is there to
21 your right behind your law clerk.
22 MR. ROSS: And I agree, and also I see the med cart,
23 prescription cart just left.
24 THE COURT: Warden?
25 MS. VON DORNUM: Should we start with the west side,

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J257SEG5
1 your Honor, the side facing the water?
2 THE COURT: So we are now where?
3 WARDEN QUAY: Inside range 3 of the Special Housing
4 Unit.
5 THE COURT: And is this the direction going west?
6 WARDEN QUAY: Yes, it's U-shaped, so we will start
7 here and we can walk all the way around.
8 THE COURT: Very well.
9 MS. VON DORNUM: Is the food heating unit working now?
10 It looked like it was.
11 WARDEN QUAY: Yes.
12 THE COURT: Ms. von Dornum and Special Agent Ross, if
13 there is a particular space you would like me to look into,
14 please point that out to me.
15 MS. VON DORNUM: I think -- correct me if I'm wrong --
16 I think the cell with the leak was cell 114 on this range.
17 MR. SPILKE: I'd just like to note that we just heard
18 someone shouting from one of the cells, "They punish us when we
19 talk. We would like to talk to someone."
20 THE COURT: I don't feel the need to do so.
21 MR. SPILKE: Yes, your Honor. Thanks.
22 THE COURT: So I just wanted to observe that we're
23 standing where?
24 WARDEN QUAY: Range 4 of the Special Housing Unit.
25 THE COURT: Range 4. And I am standing under a vent

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J257SEG5
1 THE COURT: All right. Is there anything that you
2 want to point out, Ms. von Dornum?
3 MS. VON DORNUM: Yes. It's significantly brighter
4 both in the common area which only had emergency lighting
5 previously, and even more notably in the cells. Significantly
6 warmer in the common area, which I already thought was
7 comfortable when we were here on Friday February 1, but now is
8 significantly warmer. People are out. There was nobody out;
9 everyone was locked in when we were here before. And they
10 appear to be allowed to move around freely, and people are
11 wearing far less clothing than when I last saw them.
12 THE COURT: Yes, there are a lot of people dressed in
13 shorts.
14 Is there anything else you wanted to point out beyond
15 that?
16 MS. VON DORNUM: Can we go in a cell? I don't want to
17 invade anybody's privacy.
18 When we were in here the last time we were here the
19 cells windows had frost on the glass.
20 THE COURT: This is cell 13. Do you know what
21 direction this is facing?
22 MS. VON DORNUM: It looks like this is facing the
23 street, Third Avenue. This looks like it's the east side here.
24 And the west side is those cells.
25 THE COURT: And you say you saw frost on the inside of

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J257SEG5
1 THE COURT: Do you know if he is here?
2 MS. VON DORNUM: He is in unit 62.
3 THE COURT: All right. So let's go see him.
4 Hello, sir. My name is Annalisa Torres, I'm a federal
5 district court judge. I am had a hearing today, and I was
6 expecting you to come. What happened?
7 INMATE: I went downstairs.
8 THE COURT: Before you say anything, what's your name?
9 INMATE: Zimian Tabb.
10 THE COURT: OK, go ahead.
11 INMATE: I went downstairs. I was waiting for like an
12 hour or two. The marshals came and said do you know it's a
13 legal visit, it's not court; do you still want to go?
14 INMATE: I said of course I want to go. He's like,
15 well, if you want to go, just wait in the bullpen. I waited,
16 and the next thing he is saying I can't go with my sneakers. I
17 changed out of my sneakers, I changed into blue shoes. After
18 that he is like -- he had like an attitude, so I got an
19 attitude back to him. I didn't curse at him or anything. The
20 next thing he's like I'm not taking him at all; you're going to
21 have to call somebody else to come get him, or whatever.
22 THE COURT: So did you want to come?
23 INMATE: Of course. I was down there. I kept telling
24 him after he was saying he wasn't going to take me, I kept
25 saying I want to go, I'm not refusing. Because they kept on

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J257SEG5
1 saying either you refuse or you're not. I said I'm not
2 refusing, I want to come. He is like we just going to call
3 somebody else for someone to get you. I waited another three
4 hours, nobody ever came. The next I know they said you got to
5 go back to your house, it was canceled.
6 MS. VON DORNUM: Mr. Tabb, was there anything in
7 particular that you wanted to tell the Judge if you came to
8 court today?
9 INMATE: I wanted to tell her if we get some hot
10 water.
11 THE COURT: Are you saying currently you do not have
12 hot water?
13 INMATE: It's like mild, it goes in and out, keeps
14 going in and out basically like the showers, like the cells
15 have hot water but the whole week we didn't have anything. It
16 was crazy.
17 THE COURT: So during the week what about the showers?
18 INMATE: They didn't give us no showers at all. We
19 were locked inside the cell since Thursday. After this
20 everybody started getting on the public defender phone. After
21 that we couldn't come out after that, they locked us in after
22 that. So from Thursday on we weren't able to do anything.
23 Before that there was no hot water to take a shower before
24 Thursday at all.
25 THE COURT: Do you know when the hot water went out?

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J257SEG5
1 INMATE: Oh, about Saturday? Saturday night.
2 THE COURT: You're talking about last Saturday or the
3 Saturday before?
4 INMATE: Last Saturday.
5 THE COURT: So today is Tuesday.
6 INMATE: Not the Saturday just passed, the Saturday
7 before that.
8 THE COURT: OK, all right. Thank you for telling me.
9 INMATE: All right.
10 THE COURT: OK.
11 MS. KUNSTLER: Your Honor, both Mr. Spilke's client
12 and my client are on unit 42, the same unit, so we would
13 request that we go to that unit since we're here.
14 MR. SPILKE: Yes.
15 THE COURT: And what is the purpose of going there?
16 MS. KUNSTLER: Well, to talk to other people on the
17 unit about how their medical conditions are being addressed.
18 MR. SPILKE: That's for you.
19 THE COURT: So your client and your client were both
20 in the courtroom today. If you wanted them to talk, you could
21 have put them on the stand. That's why I don't see a need to
22 talk to them now.
23 MR. SPILKE: Not necessarily to talk to them, Judge.
24 Just to see what the conditions are on the unit and in their
25 cells. I think it makes sense.

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J257SEG5
1 THE COURT: Well, if you wanted to put evidence on,
2 you should have put it on today. Let's go.
3 All right. It's 6:15, and we have come to the end of
4 our tour of the MDC. As I stated at the beginning, I would
5 like to know what your application is at this point. What is
6 the relief that you're seeking, Mr. Spilke?
7 MR. SPILKE: Yes, your Honor. On behalf of my client,
8 we request an immediate transfer to another institution because
9 of fear of retaliation, incredible fear of retaliation that my
10 client brought to my attention. Another man on his unit was
11 punitively transferred to the SHU for no reason, and the
12 understanding was -- at least what was said -- was he was being
13 made an example of.
14 THE COURT: So transfer to where?
15 MR. SPILKE: Any other institution that the marshals
16 can bring him to. I know that Valhalla, for instance, MCC.
17 THE COURT: And retaliation for what?
18 MR. SPILKE: For bringing this motion, for bringing
19 this to this level of scrutiny, to the attention of this Court,
20 and, might I add, to several presidential candidates, media
21 outlets, international news. There is intense scrutiny on this
22 institution because of the many letters that criminal lawyers
23 sent complaining about inability to access our clients. And
24 that's really the genesis of this. That was the genesis of
25 this whole thing, that I just could not see my client; I did

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J257SEG5
1 not know what was going on with him. I want to do a welfare
2 check, and I wasn't able to do that. And I think that --
3 THE COURT: But you did see him today.
4 MR. SPILKE: I did, but we've seen throughout the
5 course of this hearing that the problems here are bigger than
6 any one person, any one team of staff members, and it's
7 endemic. Yes, it's warm today, it's warm outside today, but
8 when is the next thing going to happen? And everything has
9 been a Bandaid fix and not permanent. And just the only reason
10 why I think people are getting medical attention today and hot
11 food and seemed pretty happy relatively to what the reports
12 were is because of the scrutiny.
13 So, I think that scrutiny needs to continue. I think
14 that my client needs to be transferred because of fear of
15 retaliation, and I think a special master needs to be appointed
16 for the reasons stated by Ms. von Dornum on the stand today.
17 MS. KUNSTLER: Your Honor, based on what we saw here
18 today and on Ms. von Dornum's testimony, I have no confidence
19 in this facility's ability to provide adequate medical care to
20 any inmate who needs care, including my client. I can supply
21 the Court with medical records from my client through
22 October -- through November 22. I subpoenaed but did not get
23 medical records for him from that date forward, so I was unable
24 to question him and speak with him about any care --
25 corroborate anything he would tell me post that date in terms

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J257SEG5
1 of the care he was or was not receiving at the facility.
2 I have been told by Adam Johnson that he will try to
3 get me the records today, tonight. He was going to talk to
4 Nicole McFarland. I know from my client that he is supposed to
5 be returned to the hospital for follow-up care with the place
6 that put in his eye socket, and that he has not been taken out
7 to receive that care. And I remain concerned about him for
8 that reason.
9 So I join in Mr. Spilke's request for a special master
10 to be appointed on behalf of my client and everyone
11 incarcerated here.
12 I do want to take time -- I know this hearing today
13 was not about my client's bail application, but I do want to
14 take time to consider that. If there is not another suitable
15 facility that can take him, if he cannot be taken to a
16 hospital, then he should be released so he can get the medical
17 care he needs. Somebody who has orbital surgery needs to
18 return to the hospital for follow-up.
19 THE COURT: So you're saying that you want his
20 transfer to a hospital or transfer to another facility?
21 MS. KUNSTLER: Well, I would like him to be taken to a
22 hospital to evaluate his eye socket, but I don't have any
23 confidence that he can get medical care here, so I would like
24 his transfer to another facility.
25 MR. SPILKE: Might I note that Ms. McFarland is

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J257SEG5
1 present and has joined the tour and might be able to speak on
2 the medical aspect.
3 THE COURT: The time for direct on medical records was
4 during the hearing today, and inexplicably you put on no
5 evidence. You did not even call your client to say how he was
6 feeling.
7 All right. We're going to return to the courtroom.
8 As I said again, I'm going to ask you to repeat the remedy that
9 you're seeking, and I will make a ruling at that time.
10 (Recess)
11 (Continued on next page)
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(212) 805-0300

Parchman Emergency Motion

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Case: 4:20-cv-00007-DMB-JMV Doc #: 11 Filed: 01/23/20 1 of 17 PageID #: 35

UNITED STATES DISTRICT COURT

MICHAEL AMOS, PITRELL BRISTER,

PELICIA E. HALL, in her official capacity as the

PLAINTIFFS’ EMERGENCY MOTION FOR

Plaintiffs are inmates at the Mississippi State Penitentiary at Parchman, Mississippi

commandeer the legislature’s determinations as to Parchman’s funding; or otherwise insert the

Plaintiffs’ constitutional rights—and, indeed, their lives—are to be afforded basic respect.

Mississippi’s prison remain unfilled. Parchman—Mississippi’s oldest prison and only

protecting inmates at Parchman’s chronically understaffed correctional facilities from harm in

of recent deaths is without doubt a gross culmination of systemic neglect, continual

understaffing, and utterly inhumane conditions—the impact of which is readily apparent.

grow on walls and surfaces where inmates sleep.

droppings, and rat feces.

much needed emergency medical assistance.

I. Standard for Relief

movant can show the following:

justify temporary and preliminary injunctive relief from this Court.

A. Plaintiffs are Substantially Likely to Prevail on the Merits

1. The Inhumane Conditions of Plaintiffs’ Detention Violate the Eighth and

Indeed, the inmates at Units 29 and 30 in particular—including Plaintiffs—have been

(5th Cir. 1998)).

knowledge can be shown by inference from circumstantial evidence, as well as the

must have known of the excessive risk.

measure of life’s necessities,’ as Fifth Circuit precedent requires.

Lack of Basic Safety and Protection from Violence

It is well-established that prison officials’ Eighth Amendment duties toward prisoners

judgment under the present circumstances.

Denial of Urgent Medical Care

meet court-imposed requirements to improve critical flaws in system providing healthcare

which they cannot escape in order to save their fellow inmates.

Critical Lack of Sanitation and Hygiene

Amendment as a matter of law). Such conditions are a flagrant violation of Defendants’

Exposure to Extreme Temperatures

window panes, without blankets or coats).

filing, and near-freezing temperatures at night are common.

temperature was forty degrees for prolonged periods).

Food Unfit for Human Consumption

B. The Harm Plaintiffs Face if Injunctive Relief is Not Granted Significantly

unbearable conditions is prejudicial.

No countervailing prejudice to Defendants would occur as a result of granting the

government or prison administration, be able to see conditions at Parchman firsthand and

C. Injunctive Relief Will Serve the Public Interest

requested relief will vindicate the public interest.

a purely nominal bond.

IV. Relief Requested

address the needs of this case.

Plaintiffs’ counsel to convey the situation at Parchman, it is impossible to accurately represent

meeting with counsel), 5 (memorandum in support of temporary injunction). Although facts

including proceedings at the MDC, is attached hereto as Exhibit B.

prison in person if it is to gain a full understanding of the circumstances.

appropriate special master or independent monitor to assume control of day-to-day operations.

intervention is critical if conditions are to be restored to a livable minimum.

opportunity to confirm whether Defendants oppose the instant motion.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that this Honorable Court

Court deems to be just and appropriate under the circumstances.

/s/ Marcy B. Croft

ATTORNEY FOR PLAINTIFFS

Court’s electronic filing system.

/s/ Marcy B. Croft

1 visit, depending how things unfold.

2 UNIDENTIFIED REPORTER: Excuse me, on behalf of the

3 journalists present, is it possible for one of us to accompany

4 you on your trip?