A state prisoner who was pepper-sprayed while confined to a restraint chair and then left to suffer for more than 20 minutes has filed a notice of claim against the state and the Maine Correctional Center in Windham for injuries he says he sustained in the incident.
Meanwhile, in the nine months since the Maine Sunday Telegram reported on the incident, the department has changed a number of policies and is in the process of hiring two investigators for a new internal affairs unit, a spokeswoman said.
Paul Schlosser III, who is serving seven years for robbery, is currently at the Maine State Prison in Warren, where his attorney says he can obtain better mental health treatment than at the Windham facility.
In the notice of claim filed Nov. 12, Schlosser’s attorney, C. Donald Briggs III, says he represents Schlosser “with respect to injuries sustained on June 10, 2012” and asks that the matter be referred to the state’s insurance company. The notice is not technically a lawsuit, but is intended to preserve Schlosser’s right to sue.
“The behavior was completely outrageous,” Briggs said Thursday of the officers’ treatment of his client. “It was completely unjustified.” Briggs said a video of the encounter that accompanied the newspaper story brought the incident to light. “It’s very difficult to even watch the video. It’s just terrible.”
Briggs said Schlosser did not suffer any lasting physical injuries.
“For a period of time, he had just an incredibly painful, scary, frightening experience,” Briggs said. “The only lasting effect is the sense of unease about the whole thing.”
A Maine Sunday Telegram report in March described prison Capt. Shawn Welch’s use of pepper spray on Schlosser, who was restrained at the time and not allowed to wash his face for 24 minutes after the spraying. The newspaper obtained a department video of the incident, which was posted on the newspaper’s website, pressherald.com.
After the story appeared, the Legislature’s Criminal Justice and Public Safety Committee held a hearing on the use of force in state prisons. At the time, legislators called for the creation of an internal affairs unit to investigate allegations of misconduct by corrections employees.
The department’s new IA investigators are in addition to the four MDOC investigators assigned to investigate criminal conduct at the two main prisons and the two youth detention facilities.
Rep. Mark Dion, chairman of the Criminal Justice Committee, said the internal affairs unit was a key priority for the committee.
“Internal affairs protects the integrity of the institution, helps protect public safety within the organization and provides quality control,” said Dion, a former Cumberland County sheriff. He said those goals are important not just for staff and for prisoners, who are placed in the “care and custody” of the state, but also for their family members on the outside.
New department policies are designed to improve officers’ handling of people who injure themselves and those who spit at officers, even though some of the changes have led to increased use of pepper spray in certain circumstances.
The lead-up to the use of pepper spray on a restrained inmate began when Schlosser re-injured an arm wound for which he had been previously hospitalized. Schlosser said he was hurting himself because he was upset about the breakup of his marriage and because he was being segregated from other inmates.
Officers wearing protective body armor strapped Schlosser into a restraint chair and brought him into a holding cell where a nurse could attend to his arm. As he was being held, he became increasingly agitated and started struggling with the officers, at one point spitting at one.
Welch responded by discharging a cannister of pepper spray intended for long-range use about 18 inches from Schlosser’s face, then putting a spit mask on him, which seemed to trap the chemicals. Schlosser was not allowed to flush his eyes and nose until 24 minutes later.
Prison officials decided to fire Welch, but Commissioner Joseph Ponte intervened and Welch was instead suspended for 30 days.
Ponte said later that pepper-spraying Schlosser was a single mistake in Welch’s otherwise unblemished career. His discipline included conducting training sessions for other officers on how to avoid a similar incident.
Since the incident, the department has made strides in improving its handling of prisoners who injure themselves – one of the most challenging populations in a correctional environment – and people who spit at officers, said Associate Commissioner Jody Breton.
The department and its medical services vendor brought in an expert on dealing with prisoners who injure themselves, sometimes called “cutters.” One of the changes implemented as a result is a policy of always using pepper spray on inmates who refuse warnings to stop injuring themselves.
“Rather than let them cut themselves, we do spray,” Breton said. The consistent response is intended to reduce incidents where inmates injure themselves. “It really cuts down on the number of people who are self injurious. It’s been remarkable to see the impact we’ve seen already.”
The new approach to prisoners hurting themselves could actually lead to more uses of what the prison calls use of a chemical agent in some circumstances, she said.
The number of times pepper spray has been used dropped at the Maine Correctional Center from 20 in 2012 to 17 times so far this year. Use of the restraint chair has gone from nine times last year to none so far this year.
There were 24 incidents involving self abuse, as the department calls it, at MCC in 2013. The department was unable on Thursday to provide those numbers for previous years.
But at the Maine State Prison, which usually houses prisoners who are harder to manage, there has been a significant increase in the use of pepper spray to control prisoners. Officers used pepper spray 40 times and the restraint chair was used four times in 2012. This year, officers have used pepper spray 100 times and the restraint chair eight times.
There were 130 incidents of self abuse and attempted self abuse in 2013, the department reported. While unable to provide figures, Breton said that based on her daily assessment of incident reports from the prisons, the number of cases of self abuse has dropped off.
The department also has adopted a policy that whenever a prisoner is identified as someone who poses a risk of spitting, they must wear a spit shield when officers remove them from their cell. “Spitters” may pose a danger to officers if the inmate has a communicable disease, so their saliva becomes a potentially dangerous weapon.
Breton said another change in policy is more philosophical.
“It’s all right for them to have the last word, we have the last action.” She said officers can’t let a prisoner’s insults interfere with their work. “So what if he got the last word. Did we get compliance?”
Some of the policy changes were underway before the Schlosser incident became public.
“I don’t want to say that video changed how things would have been handled,” Breton said, but added that the incident itself led to positive changes.
“It certainly turned out to be a good opportunity to train not only Maine Correctional Center staff but the whole department, to use it as a teachable moment,” she said.
Those steps may improve prisoner management going forward, but won’t necessarily figure in Schlosser’s lawsuit, said Briggs.
“It’s helpful but it’s not anything that gets into evidence either,” he said. “The question in any case is, ‘What were the conditions at the time?’ ”
The suit will seek both compensatory damages, to make up for what Schlosser endured, and punitive damages, which can be much larger and which courts use to send a message that can shape policy.
Schlosser will have to first overcome the statute of limitations.
In order to sue a government entity under the Maine Tort Claims Act, a notice of claim typically must be filed within 180 days of an incident, and lawsuits initiated within two years. It has been more than six months since the incident was publicized and 17 months since the incident occurred. However the law allows for notices filed beyond the 180-day time limit if the person making the claim can show a good reason.
Briggs said Schlosser wasn’t aware of his right to bring suit, at times had limited competency, and feared retaliation. Briggs said he was not aware of any retaliation being taken against Schlosser in connection with the incident.
The statute of limitations for a federal civil rights claim is six years, Briggs said.
David Hench can be contacted at 791-6327 or at: