“If even a portion of these claims are true, this is a case worth investigating.”
That was the message from an Oregon appellate commissioner upon reviewing a 100-page complaint—originally written out by hand—from an inmate at the Oklahoma State Penitentiary. The inmate, convicted of aggravated murder in Oregon and sentenced to life, had been transferred to Oklahoma under an Interstate Corrections Compact. His lawsuit described a litany of mistreatment at the hands of prison officials, and at the hands of fellow inmates enabled by those officials.
A trial court judge in Oregon had dismissed the case—with prejudice—in 2009. A few weeks later, the inmate’s Oregon attorney died tragically in a car crash. At that time, Oregon’s Court of Appeals was launching a new pro bono referral program, and the appellate commissioner, convinced that this voluminous complaint merited a second look, sent out an inquiry to see if any lawyers might be willing to review the 100 pages of grievances and determine possible grounds for appeal.
DWT associate Christie Totten, then just two years out of law school, raised her hand.
“The conditions described in this complaint are below the standard one would expect in an American prison,” says Totten, whose practice area is employment litigation. “In the view of the plaintiff, the guards were unprofessional white supremacists. And the conduct he alleged, which included denying him food and providing other inmates opportunities to assault him, was very troubling.”
Totten’s previous pro bono work included serving at a legal clinic for homeless youth in Portland, as well as employment counseling for some nonprofits. She had never worked on any appellate litigation, pro bono or not. “I was very interested in getting into the appellate court and arguing a case,” says Totten. “And that’s what I got to do.”
But first, Totten had to seek ways to challenge the trial judge’s ruling: that no cognizable legal claims were in her client’s extensive complaint, and that Oregon had no personal jurisdiction over the many Oklahoma defendants.
Totten isolated one part of the inmate’s story as particularly disturbing, from a constitutional perspective. It was also one for which she had hard evidence in hand.
In August 2008, the inmate’s now-deceased lawyer had sent his client a package marked “LEGAL MAIL,” with a return address that clearly indicated it came from a law office in Oregon. A case manager at the penitentiary had opened the package, read its contents, and decided it was not legal mail.
The warden of the penitentiary then wrote to the attorney, requesting “documentation” that he represented the inmate and that he had “a license to practice in Oklahoma.” The attorney responded, explaining, among other things, why it was not necessary for him to be licensed in Oklahoma to represent the inmate. The warden replied that he had still not received adequate explanation as to why the contents of the package were legal mail. He continued to withhold them from the inmate.
Hard copies of this correspondence were in the inmate’s file when Totten inherited the case. They show “a flagrant misunderstanding of how attorney-client privilege is supposed to work,” says Totten. “And this is the warden of the whole prison.”
In her appeal, Totten asserted that the confiscation of her client’s legal mail had been in retaliation for his ongoing grievances regarding conditions and treatment, as well as his intention—which he conveyed to prison staff—to file a lawsuit against them and the Oklahoma Department of Corrections.
“Prisoners do have First Amendment rights to file grievances and pursue civil litigation,” says Totten. “And it’s unconstitutional for a prison official to take an adverse action against an inmate because of this activity if it’s likely to discourage a reasonable person from pursuing it further.”
Oregon officials could also be liable, she said, for “acquiescing” in this deprivation of her client’s constitutional rights. The inmate had sought help from the Oregon official responsible for administering the Interstate Compact with Oklahoma, but that official had simply told him to address his complaint to Oklahoma.
The inmate experienced this same pattern of disregard in regard to allegations of physical abuse. As recounted in the complaint, one of the Oklahoma guards spread word that the inmate plaintiff was a “rat” who had been transferred to Oklahoma after providing information against white supremacist prison gangs in Oregon. This prompted death threats and harassment from members of the United Aryan Brotherhood. The inmate shared copies of threatening notes he’d received with corrections officials in Oregon and Oklahoma, and asked to be transferred to another facility. He was interviewed by a local official but no further action was taken.
“Oregon officials were told of threats being made to his life by other prisoners,” says Totten, “and they didn’t act promptly enough to protect him. He’s still their prisoner, even though they’ve contracted him out. They had a duty to investigate, to do something.”
Totten also had to address the trial judge’s finding that Oregon had no personal jurisdiction over the Oklahoma officials. She focused on two defendants in particular—the warden and the case manager—and noted that they had directed their actions toward the state of Oregon in myriad ways, and these contacts were directly relevant to her client’s claim.
After more than a year of court-required settlement talks, Totten submitted her appellate brief in September 2011. A year later, she argued her client's case before a three-judge panel.
“She did an outstanding job,” says Kevin Kono, a partner in DWT’s Portland office, who served as her supervisor. “She had the absolute perfect demeanor for the Court of Appeals—non-argumentative, conversational. She adeptly handled the questions. Lawyers on the other side from the Justice Department were much more experienced, but she was the far superior oral advocate.”
This past October, the panel issued its decision—which went entirely in favor of Totten’s client. The panel found that the contacts made with the state of Oregon by the warden and the case manager made it reasonable to exercise jurisdiction over them, as Totten had argued. The panel also agreed that the trial court had erred in dismissing negligence claims against the Oregon Department of Corrections and two of its officials, and the constitutional claims against the warden, the case manager, and the two Oregon DOC officials.
The plaintiff should have been allowed “an opportunity to amend his complaint once, as a matter of right, before the trial court dismissed his complaint with prejudice,” the panel wrote.
DWT’s representation through the court’s pro bono program ends with the closure of the appellate matter. The case now returns to Marion County court in Oregon, where the inmate will have another chance to sue for damages. He was transferred to a prison in New Mexico after filing his first complaint, and has since moved again.
“There was never any question of him getting out of prison,” says Totten. “But you have to hold the system accountable.”