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Justice, Abraham object to discovery order in jail lawsuit

Attorneys for Gov. Jim Justice pushed back Monday on an order seeking specific documents, including discussions regarding a directive to former DHS secretary Jeff Sandy to investigate allegations at the Southern Region Jail. (Photo Courtesy/WV Governor’s Office)

CHARLESTON — Gov. Jim Justice and Brian Abraham, the Governor’s chief of staff, pushed back in an objection filed Monday to an order seeking internal documents related to a federal class action lawsuit focused on conditions at the Southern Regional Jail.

Attorneys representing Justice and Abraham filed objections to the discovery order filed Oct. 30 by U.S. Magistrate Judge Omar J. Aboulhosn.

That order denied a motion filed by attorneys representing inmates at the Southern Regional Jail (SRJ) near Beckley seeking depositions from Justice and Abraham. However, it did grant a motion requiring Justice and Abraham to provide certain documents to the plaintiffs.

Justice and Abraham — represented by Hissam Forman Donovan Ritchie PLLC — argue in their objections that the document requests are unduly burdensome and irrelevant to the case being brought by the SRJ inmates. They also argue that the granted motion violates the executive privilege and deliberative processes of the governor’s office, and that it violates state sovereign immunity.

“It is difficult to overstate the unprecedented scope of the Discovery Order,” wrote attorney Michael Hissam. “A federal court has issued an order compelling the Governor of a separate sovereign and his chief of staff to disclose internal documents concerning matters clearly committed to the discretion of the State’s Chief Executive in the exercise of core constitutional prerogatives.”

Michael Rose and Edward Harmon, two inmates at the Southern Regional Jail, filed a class action lawsuit in 2022 in the U.S. District Court for the Southern District of West Virginia. They are represented by attorneys with New, Taylor and Associates; the Lupardus Law Office; the Whitten Law Office; and Robert Dunlap and Associates.

The Division of Corrections Rehabilitation is accused by Rose and Harmon of alleged inhuman living conditions at the jail, overcrowding, lack of maintenance, unsanitary conditions and serving spoiled food, among other issues. The two inmates are seeking a ruling ordering the state to correct the conditions at the jail.

Attorneys for Rose and Harmon filed a motion Oct. 16 seeking depositions from Justice and Abraham, but attorneys for the Governor’s Office notified the plaintiffs one week prior to the scheduled taped depositions that they planned to file motions to quash the subpoenas for depositions. Both parties have a deadline of Nov. 17 to complete discovery in the lawsuit.

After a stay was granted, Aboulhosn ruled in an Oct. 30 order against requiring Justice and Abraham to sit for depositions, though both are required to comply with subpoenas for documents.

Attorneys for the SRJ inmates are seeking documents from Justice and Abraham regarding the firing of former DCR Commissioner Betsy Jividen and an investigation conducted by former Department of Homeland Security secretary Jeff Sandy of SJR, including an on-site visit.

According to testimony during an evidentiary hearing last month and video depositions over the summer, Jividen said she was fired by Sandy and Abraham after the death at SRJ of a nephew of Department of Transportation Secretary Jimmy Wriston.

“Jeff Sandy told me that Brian Abraham was upset about Secretary Wriston’s nephew … dying in the hospital after being incarcerated at Southern. And that he had gone to the Governor and that’s when the Governor had asked for my resignation.”

According to a press release at the time, Jividen’s departure was announced on July 26, 2022, and her resignation was effective Aug. 5, 2022. Justice appointed Jividen as commissioner for DCR in 2018.

“… It is hard to see how any involvement by Mr. Abraham in Jividen’s departure from DCR has anything to do with Plaintiffs’ claims of negligence or constitutional violations,” Hissam wrote. “Neither Plaintiff nor Jividen allege that she was wrongfully terminated, or that her departure from WVDCR was in any way improper.”

In his video deposition, Sandy talked about an investigation he conducted at SRJ in March 2022 at the request of Justice and Abraham due to allegations of inmates at the facility drinking out of toilets, being denied toilet paper, and some inmates sleeping on floors. Sandy said he went to SJR, but he did not enter any cell and only talked to a handful of inmates.

“I did not go into any pod; did not go into any cell,” Sandy said. “I went to the observation area and looked down on multiple pods.”

Hissam said the report written by Sandy from his March 2022 visit to SJR was already available to the plaintiffs and that producing internal documents directing Sandy to investigate SJR would be burdensome.

“To the extent Plaintiffs wish to explore why Mr. Abraham chose to instruct Sandy the way that he did – information of no relevance to Plaintiffs’ claims in any event – such information would be protected by the deliberative process privilege,” Hissam wrote. “What is more, releasing information concerning the initial decision to investigate a regional jail and information about the scope of that investigation would again burden the executive function of the State’s top executive office.”

Last week, Aboulhosn issued a 39-page order finding in favor of a motion from the inmates seeking default judgment against the state. Aboulhosn accused DCR officials of intentionally destroying evidence, including emails and electronically stored documents. Since then, DCR interim commissioner Brad Douglas and an attorney for DHS have been fired and some of the missing documents have been found.

Aboulhosn ordered Justice and Abraham to provide any documents to the plaintiffs regarding the issues surrounding the destroyed emails and other documents. But Hissam said there is no evidence Justice or Abraham were involved in decisions regarding the retaining of digital files.

“There has been no allegation or even attempted showing that either Mr. Abraham or the Governor was involved in the failures by WVDHS and WVDCR, and any suggestion to the contrary, including as the apparent basis for this final category of documents request, is entirely unsupported,” Hissam wrote. “Such a request is therefore unduly burdensome.”

Steven Allen Adams can be reached at sadams@newsandsentinel.com

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