A prisoner who is suing the Newton County Sheriff's Department for injuries he suffered during a beating in his jail cell is asking for permission to file an amended petition.
Oscar Alvarez claims former jailers Adam Babbitt and Shane Smith opened his cell door, allowing other prisoners to enter the cell and beat him. Sheriff Ron Doerge was listed as a defendant in the initial petition, but was removed from the lawsuit by the judge and replaced by current Sheriff Kenneth Copeland.
In the amended petition, filed Tuesday in U. S. District Court for the Western District of Missouri, Alvarez claims that Babbitt or Smith did the following:
-"Unlocked Alvarez' cell door
-"Turned off the video surveillance camera monitoring Alvarez' cell, or arranged for it to be turned off
-"Unlocked the cell doors of two other prisoners or arranged for their cell doors to be unlocked
-"Allowed one of the inmates to stand watch while another inmate entered Alvarez' cell and attacked Alvarez causing him serious bodily injury.
The new petition says that Doerge "either instructed the jailers under his control to use disciplinary measures designed to violated, or having the effect of violating, inmates' constitutional rights."
Those disciplinary measures, according to the lawsuit, were: "taking beds and blankets away from inmates, taking away shower privileges, locking inmates in solitary confinement for up to 30 days at a time, locking inmates in solitary confinement with other inmates for the purpose of inciting or encouraging those inmates to fight with one another, denying water to inmates for up to 10 hours at a time, and inappropriately using tasers for the purpose of disciplining inmates."
Because of these policies, the petition said, Alvarez received facial injuries and suffers from "headaches, back injuries and brain damage."
Alvarez continues to suffer from emotional distress, the petition said, because he feared for his life following the alleged attack in his cell. The beating violated his Eighth Amendment right against cruel and unusual punishment, according to the petition.
The petition asks for unspecified monetary damages. The new petition came on the next to last day before the court deadline for changing the petition.
Under the schedule filed March 16 in federal court, the trial is set for Feb. 21, 2006, with a pretrial hearing planned for Feb. 10 in Springfield.
As revealed earlier in The Turner Report, though he is no longer a defendant in the Alvarez lawsuit, it still places Doerge in a tricky position. Doerge apparently ignored evidence that could have cleared Smith and Babbitt of their alleged roles in Alvarez' beating and made it appear that the beating might have been planned by Alvarez and another prisoner.
In March 2004, Doerge told Joplin Globe reporter Dena Sloan that his investigation had determined that the cameras trained on Alvarez' cell had been turned off for a few minutes so the cell door could be opened and two prisoners let in, one to stand watch and the other to beat up Alvarez. Another prisoner also received a less serious beating in the incident.
In his response to Alvarez' lawsuit, filed when he was still listed as a defendant, Doerge claimed to be "without adequate knowledge or information sufficient to form a belief as to the truth of the factual allegations."
The felony charges against Smith and Babbitt in connection with the case were amended to misdemeanors in exchange for their Alford plea. In an Alford plea, the defendant does not actually plead guilty, but admits there was enough evidence to convict if the case had gone to trial.
Smith and Babbitt were never told that the Sheriff's Department had evidence that could have either cleared them or at the least created reasonable doubt. This evidence included an affidavit signed by another Cell Block A inmate saying Alvarez and another inmate had concocted a plan to have Alvarez beaten to prevent Alvarez from being deported.
At the time, Alvarez was facing a felony charge of non-support which, if he had been convicted, would have been enough to have forced him to leave the United States. One day before Doerge gave the interview to Ms. Sloan of the Globe, the charge against Alvarez was amended to a misdemeanor, enabling him to stay in this country. The sheriff also apparently only accepted the word of four inmates, including Alvarez and the man who beat him that the cameras were turned off, although there was no other evidence that that was what had happened and each of the men had something to gain by telling the story.
The man who admitted to beating Alvarez and the other inmate had already been convicted, but was waiting in line for a trip to the Department of Corrections, where he would have considerably more freedom than he had at the Newton County Jail. Alvarez' hearing, the one which would have almost directly led to his deportation, was scheduled for later that week. His cellmate, who also claimed he was beaten, was looking for special favors from the sheriff, ones which had been denied right up until the time of the alleged beating, but then were suddenly granted.
No evidence ever existed, other than the inmates' story that anyone ever actually entered their cell. The videotape system used in the Newton County Jail had numerous incidents of the picture fading in and out... incidents which happened on a regular basis anyway because of the use of the same videocassettes over and over again. The time stamp on the machine never showed that it had been shut off at any point.
After Smith and Babbitt were fired, another inmate in the cellblock signed an affidavit saying he had heard Alvarez and his cellmate come up with the plan. When they entered their Alford pleas, the two jailers had no idea the affidavit existed.
Both men, indicating they felt they had been railroaded by the sheriff, later filed lawsuits against him in Newton County Circuit Court. Both cases were later dismissed.