IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St Croix
W
Jensen Ken Alexander, Case Number SK 2013 CV 00316
Petitioner Action Writ of Habeas Corpus
v
ynnie Testamark, et a1
Respondent ’
NOTICE 0f ENTRY
of
Order
To Amelia B Josegh Esg/ Michael Robert Francisco ESQ
Please take notice that on April 24, 2023
a(n) Memorandum Opinion
dated April 21, 2023 was/were entered
by the Clerk in the above titled matter
Dated Ami! 24 2023 Tamara Charles
Clerk of the Court
By g Q .
Sharisse Bascombe
Court Clerk Supervisor
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
Jensen Alexander SK 2013 CV 00316
Petltioner
V, PETITION FOR m+s counts
Winnie Testamark. Director of the
Bureau of Corrections and Joe Booker
Warden Golden Grove Correctional
Facility
Respondents
Cite as V] Super18
APPEARANCES
AMELIA B JOSEPH ESQ
Attorney for Petltioner
Territorial Public Defenders Office
#1 B Estate Clifton Hill 2116 floor
Kingshill Virgin Islands 00850
AAG MICHAEL ROBERT FRANCISCO ESQ
and AAG IAN CLEMENT ESQ
VI Department of Justice
34 38 Kronprindsens Gade
GERS Building 2nd floor
St. Thomas V1 00802
Jane Meade, Senior Sitting Judge
MEMORANDUM OPINION
‘11 1 THIS MATTER is before the Court on the Petition of Jensen
Mexgnder (hereinafter Alexander ) seeking relief through a writ of habeas
corpus to address alleged statutory and constitutional violations in
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relation to the manner in which his imprisonment is being administered
Alexander does not challenge the validity of his confinement Moreover it
appears to this Court that the relief that the Petitioner is requesting is
basec’ on his desire to be incarcerated in a facilityi in the Virgin Islands
For the reasons that follow the Petition is dismissed and request for relief
is DENIED
Factual Background
‘II 2 Alexander was brought to trial in the Superior Court of the Virgin
Islands under an Information which charged him with the crimes of one
count of First Degree Murder two counts of First Degree Aggravated Rape.
two Counts of First Degree Rape two counts of First Degree Assault and
one count of Carrying and Using a Dangerous Weapon During the
Commissmn of a Crime of Violence The jury convicted Alexander on all
counts of the crimes charged
‘11 3 Alexander received a sentence of life imprisonment without parole
on the murder conviction 25 years on the convictions for aggravated rape
and 10 years on each of the convictions for First Degree Assault and
Carrying or Using a Dangerous Weapon During the Commission of a crime
of Violence
91 4 In his Petition for a Writ of Habeas COrpus Alexander does not
challenge the validity of his conviction or sentence However Alexander
raises numerous claims alleging that the officials of the Virgin Islands
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Bureau of Corrections (‘VIBOC or BOO } violated several statutory and
constitutional provisions in the way they administer the terms and
conditions of his detention and confinement within the prison system
i VI 5 Alexander began serving Inf sentence at the Golden Grove
Correctional Facility in St Croix1 Subsequently he was transferred to Red
Onion State Prison in Virginia and later to Wallens Ridge State Prison in
Virginia He is currently incarcerated at Wallens Ridge State Prison The
transfer of Virgin Islands prisoners to be housed in facilities in other states
is governed by Title 5 V I C § 4503 (c) A prisoner transfer compact
between the Virgin Islands and State of Virginia applies to Alexanders
transfer to the State of Virginia
‘11 6 The fundamental substance of Alexanders claims is that his
transfer from the Virgin Islands constitute a change in the circumstances
of his detention which led to several statutory and constitutional
violations Initially the Court granted the writ to address the following
claims
I The Director and other officials of the Bureau of Corrections
violated the provisions of Title 5 V I C § 4503(c] when they
transferred Alexander to Red Onion State Prison and later to
Wallens Ridge State Prison without verifying that these facilities
had the educational and vocational programs that were available
at the Golden Grove Correctional Facility
' In 2022 the name of the Golden Grove Correctional Facility was renamed m John A. Bell Adult Correctionai
Facility“
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2 The policies and practices of the Red Onion State Prison and
Wallens Ridge State Prison subjected the Alexander to unlawful
discrimination because of his Rastafiarian religion
i 3 The transfer from the} Virgin Islands correction facility eff ctively ‘
denied Alexander access to the courts because the facilities to
which he was transferred did not have Virgin Islands legal
material available
4 The Director and other officials of the Virgin Islands Bureau of
Corrections violated Alexanders constitutional right to due
process when they transferred him to Virginia without a hearing
and withheld his property Which included documents be
prepared in relation to his conviction and sentence
€17 The Court conducted an evidentiary hearing on March 9
2022 In support of his claim for relief Alexander contends that the terms
and conditions of his incarnation violates United States Constltutions
Fourteenth Amendment Due Process Clause the First Amendment right
to the free exercise of religion and the Eighth Amendment prohibition of
cruel and unusual punishment During the hearing Alexander raised
additional factual allegations which he contends impact adversely on
constitutional and statutory provisions which were prescribed to govern
his transfer from the Virgin Islands
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The Legal Standard
‘118 Traditionally the writ of habeas corpus is a vehicle for challenging
the legality of the government 5 restraint detention or custody of a person
It is a device for infiuiring into whether the governments restraiths on a
person s liberty satisfies the ends of justice “The writ of habeas COrPuS is
meant to prevent injustice or remedy flundamental miscarriages ofjustice
Fahie v Govt Qf the Virgin Islands 73 VI 443 450 (V I 2020) A person
who is unlawfully incarcerated or detained or whose liberty is uniawfully
restrained may petition the Court for relief in a habeas corpus proceeding
If the petitioner establishes that the detention is unlawful the Court shall
grant relief by discharging the petitioner from custody or restraint Tit 5
VJ Code Ann § 1312 The petitioner bears the burden of establishing the
evidence and proving the facts that would show that the petitioner is
entitled to the relief requested See Donovan v Govt Qf the Virgin Islands
2013 VI LEXIS 21 at *6 7 (Super Ct 2013) Relief is granted where
appropriate to remedy constitutional or statutory violations VI Hab
Corp Rule 2(b)(2}
1t 9 When a person is [awfmly imprisoned after conviction for a crime
many of the rights and privileges of the ordinary citizen may become
unavaflable as is necessitated by the demands of administration of penal
institutions Price 0 Johnston 334 U S 266 285 (1948) However a prison
inmate retains many of the rights and protections afforded by the
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constitution These rights and protections include the Fourteenth
Amendment right to due process and equal protection the First
Amendment right to the free exercise of religion and the Eighth
Amendmeint protection against cruel and unusual puxltuishment W011}” v
McDonnell 418 US 539 555 (1974)
DISCUSSION
A. Claims For Violation of Due Process
‘11 10 Alexander contends that his tmnsfier to Virginia violated his
Fourteenth Amendment right to due process To support this claim
Alexander alleges (1) That he was not given a hearing prior to his transfi r
(2) That The officials of the Virgin Islands Bureau of Corrections deprived
him of the pr0perty he acquired and kept in his cell (3) That he was denied
aCCess to the courts because the prOperty included documents which he
needed to prosecute cases (4) That he was denied access to the courts
because Wallens Ridge Prison did not allow him physical access to the
libraxy and did not have materiai on Virgin Islands law During the
evidentiary hearing Petitioner raised the additional claim that he was
deprived of his property when the officials at Wallens Ridge State Prison
failed to conduct a proper investigation to retrieve his clothing that were
stolen from the laundry
‘11 11 “The Fourteenth Amendments Due Process Clause protects an
individual 5 right against the deprivation of life liberty or property through
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the exercise of governmental authority J McIntyre Mach. Ltd. v Nicastro
564 U S 873 879 [2011) “The touchstone of due process is the protection
of the individual against the arbitrary actions of the government def
.418 U s at 558 [Citing Dent v West WM 129 U s 114 123 (1889))
“The core of due process is the right to notice and a meaningf111
opportunity to be heard Lachance v Erickson 522 U S 262 266 (1998]
Accordingly the analysis of a due process claim encompasses a two step
inquiry “The first inquiry in every due process challenge is whether the
plaintiff has been deprived of a protected interest in preperty or liberty
Am. Mfrs Mut Ins Co v Sullivan 526 US 40 59 (1999) (Citing Matthews
v Eldridge 424 U S 319 332 (1976)) Once it has been determined that
the individual has been deprived of a property or liberty Interest by the
actions of the government, the second inquiry B Whether the procedures
fo1lowed by the state were constitutionally sufficient Swarthout v Cooke
562 U S 216 219 (2011) (Citing Kentucky Dept Qf Corrections 0
Thompson, 490 U S 454 460 (1989))
‘11 12 Furthermore in addressing a due process claim the court must not
only consider the nature of the right but also the circumstances
surrounding the deprivation "1‘0 determine Whether due process
requirements apply In the {fist place we must look not to the weight but
to the nature of the interest at stake Board qf Regents v Roth. 408 U S
564 570 (1972] A protected interest means that a person clearly must
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have more than an abstract need or desire for it He must have more than
a unilateral expectation of it He must instead have a legitimate claim of
entitlement to it Id at 577 At the same time courts have emphasized that
to offend the Due Process Clause the actions of goivemment which deprive
the mdlvidual of those interests must be deliberate or arbitrary and
capricious City Qf Sacramento v Laws 523 U S 833 845 (1998)
Arbitrary and capricious applies to governmental action having no
legitimate governmental purpose or an unreasonable means of advancing
a legitimate governmental Interest 37712 Inc v Ohio Dept Qf Liquor
Control 113 F3d 614 619 (6th Cir 1997} Historically this guarantee of
due process has been applied to the deliberate decisions of government
officials to deprive a person of life, liberty or prOpel'ty Daniel v Williams
474 U S 327 331 (1986) Neither can the deprivation be merely negligent
to satisfy due process requirements “The defendant must possess a
purposeful a knowing or possibly reckiess state of mind that is because
liability for negligently inflicted harm is categorically beneath the
threshold of constitutional due process Kingsley v Hendrickson, 576 U S
389 396 (2015) “The protections of the Due Process Clause of the
Fourteenth Amendment are not triggered by a lack of due care by prison
officials Where a government official 8 act causing infilry to life liberty or
property is merely negligent no procedure for compensation is
constitutionally required Daniel 474 U S at 333 Even in circumstances
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of intentional deprivation the requirements of due process do not apply if
the state has a post deprivation remedy for the loss Hudson v Palmer
468 U S 517 533 (1984} [holding mat an unauthorized intentlonal
deprivation of property 13y a state employee does not constitute a wolaition
of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a post deprivation remedy for the loss is
available) See also Parratt v Taylor 4521 U S 527 542 (1981) (finding
that the emstence of an adequate state remedy negates a due process
claim)
1 The Transfer to Virginia
GI 13 The Director of the Virgln Islands Bureau of Corrections has the
authority to enter into agreements to transf r inmates to other correctional
facilities in the United States or its Territories based on the needs of the
Institution or the welfare of the inmate Tit. 5 VJ Code Ann § 4503(c)
Alexander contends that his transfer from the Virgin Islands to Virginia
violated the requirements of the Due Process Clause of the Fourteenth
Amendment because he was not given a hearing prior to his transfer For
the requirements of due process to apply Alexander must show that he
has a right to be incarcerated in the Virgin Islands to serve his sentence
Virgin Islands law confers no right upon a prison inmate to serve his
sentence in the Virgin 13161an Therefore Alexander has failed to show that
he has a fundamental or statutorily created right to serve his sentence in
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the Virgin Islands or other penal institution of his choice A prison inmate 5
hope that he would not be transferred to another prison is not protected
by due process Greenholtz v Inmates of Neb Penal 8L Corr Complex, 442
i U S 1 30979) Accordingly Alexander] has failed to satisfy the first
requirement of his due process claim. Since the transfer did not deprive
Alexander 05 a constitutional or statutory right the Due Process clause
was not implicated so there was no need for notice and hearing prior to
his transfer
2 The Deprivation of Property
‘11 14 Alexander next claims that upon his transfer the officials of the
Virgin Islands deprived him of his pr0perty by withholding or failing to
deliver to him the property he had acquired and kept in his cell The Court
must decide whether the taking was willful, negligent intentional or
unauthorized act of a government employee or whether it was in
conformity with governmental authority Alexander does not state whether
the property was taken under a policy ofi the BOC or other governmental
authority Neither does he state whether the deprivation was an act of
negligence or the unauthorized intentional act of a government employee
In the absence of any evidence of the circumstances surrounding the
deprivation. this Court cannot determine whether the deprivation
constitutes a violation of due process In any event the Virgin Islands Tort
Claims Act, Title 33 VI C §§ 3401 et seq provides an adequate post
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deprivation remedy for the negligent or intentional acts of government
officials which result in injury to property interests Intentional or
negligent deprivations of property by government employees do not
constitute a virilation of due process unless the state refuses) to provide a
post deprivation remedy Hudson 468 U S at 533 A tort chime procedure
is an adequate post deprivation remedy to address the deprivation of
property rights by state employees Zinermon v Burch, 494 U S 113 128
(1990)
‘11 15 Alexander also claims that the officials ofWallen 5 Ridge State Prison
failed to investigate the theft of: his clothes that were taken from the
laundry in that facility Here Alexander does not allege that he was
deprived of his property by governmental authority or the actions of a state
employee A due process claim would first require Alexander to show that
the deprivation was caused by the actions of. the state or state employee
3 The Denial of Access to the Com
‘1! 16 To support his claim of. denial of access to the courts Alexander
a11eges(l) that the property he lost when he was transferred from the
Virgin Islands included documents which he needed to prosecute claims
relating to his conviction and sentence (2) Prison officials denied his
request for his birth certificate and social security card which he needed
to file a document with the Court [3] That he was denied physical access
to the library at Wallens Ridge and that the Wallens Ridge library is
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lacking in Virgin Islands legal material
‘11 17 Prisoners have a constitutional right of access to the courts
Bounds v Smith 430 US 817 821 [1977) And while the right of access
5 to the courts encompasses the rrght of access to a library and legal '
material it does not guarantee physical access to the library “The
fundamental right of access to the courts requires prison authorities to
assist inmates m the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate assistance
from persons trained in the law Id at 828
‘II 18 Alexander made a general claim about the loss of legal documents
but did not specify the documents he lost or how they related to the actions
he intended to file with the Court Alexanders failure to describe his
documents with some measure of Specificity made it impossible for the
Court to determine the merits of his claim Likewise, Alexander failed to
explain to the Court how the denial of his request for his birth certificate
and social security card prohibited him from filing documents with the
Court or otherwise denied his access to the Court
‘11 19 Furthermore neither Alexanders claim of being denied physical
access to the library nor his claim of the unavailability of Virgin Islands
legal material is factually sufficient to support a claim of due process
violation In clarifying the standards set by Bounds v Smith. the U S
Supreme Court held that an inmate who claims a violation of the right of
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access to the courts must show actual injury Lewts 0 Casey 518 U S
343 346 (1996) An inmate can show actual injury by showing that the
denial of access caused the loss or rejection of a legal claim Oliver 0
Fauver ins F3d 175 177 (3d Cir 1997) Alexanders Faun that he is not
allowed physical access to the library does not amount to the type of injury
for which the constitution provides redress “The constitution does not
require that prisoners [literate or illiterate) be able to conduct generalized
research but only that they be able to present their grievances to the
court Lest 518 U S at 360 Alexanders notion that he has a right of
physical access to the library is misguided The U S Supreme Court has
further clarified that because Bounds did not create an abstract
freestanding right of access to a law library or legal assistance an inmate
cannot establish relevant actual injury siInply by establishing that his
prisons law library or legal assistance program is subpar in some
theoretical sense Id at 351 Alexander has not presented any evidence of
actual injury In fact since his incarceration Alexander has filed several
actions with the Superior Court of the Virgin Islands seeking various
forms of relief Alexander has himself testified during the evidentiary
hearing that he has filed five or six actions some of which are still pending
in the Superior Court In addition Alexander was unable to explain or
provide to the Court any informatlon regarding Virgin Islands legal
material that he needed but was not available (See Transcript p 35 36)
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‘R 20 On the other hand Mr Steven Isabel] the law librarian at Wallens
Ridge testified that the library is updated with LexlsNexis data bases of
Virgin Islands law every couple of months He also testified that the format
i for obtaining legal materiali is for inmates to submit a request to thel
librarian If the inmates need additional assistance they are refierred to
the institutional attorney who arrangm to meet with them
‘1! 21 Alexander has failed to show actual injury from his denial ofi access
to the library and has failed to show that the measures provided to gain
legal material does not meet constitutional standards
B Claims of Violation of Free Exercise Clause
‘1! 22 Petitioner alleges that the Red Onion State and Wallens State
prisons discriminated against him on the basis of his Rastafarian religion
by their grooming policy and their failure to provide adequate legal services
for Rastafarians Alexander testified that because he is a Rastafarlan who
grows long hair he was not allowed to go into the general pOpulation Ms
Marsha Hensley the Inshtutional Program Director at Wallens Ridge
testified that the grooming policy placed inmates who chose to grow long
hair into their own pod (Transcript p 117) She further testified that these
inmates were permitted to engage 1n the same activities as the rest ofi the
general population In any event both Ms Hensley and Alexander testified
that the hair grooming policy is no longer in operation Accordingly this
claim is moot
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9[ 23 In his second claim of religious discrimination Alexander testified
that although prison officials allow Rastafarians to assemble and conduct
their religious practices prison officials do not provide clergy or written
i material on the Rastafarian reli§ion Alexander does not contend that there ’
is a regulation or policy prohibiting the presence of clergy or Rastafarian
religious literature at Rastaflarian religious gatherings Therefiore this does
not appear to be a claim that challenges the prohibition of Rastafarian
religious practices by prison administration This appears to be a claim for
religious accommodation It is unreasonable to expect that prison officials
will automatically know what materials or clergy every prisoner will need
to conduct reiigious practices Therefore the religious practitioner will
have to inform prison officials and request accommodation for the various
needs of his religious practice Ms Marsha Hensleys testimony indicated
that the institutional chaplain Mr Reagan is available to all inmates to
gather information from them about their religious needs Mr Reagan also
has the responsibility to respond to inmates request for religious
accommodation and wherever possible to provide them the
accommodation requested It is unclear to this Court whether Alexander
has ever requested this accommodation There is no evidence which
establishes that Alexander ever requested clergy or religious material and
the request was denied Even when the Court inquired Alexander was
unable to inform the Court of which sect of the Rastafarian religion he
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practiced or for Which he was requesting clergy or religious material
‘fi 24 Incarcerated individuals are affiorded their constitutional rights
under a more restricted framework than the ordinary citizen OLone v
i Estate Qf Shabazz, 482 U S 342 31% (1987) However prisoners do not l
forfeit all constitutional rights when they are convicted and confined to
prison Cruz 1) Beta 405 U S 319 (1972} {per curiam) In Cruz the District
Court dismissed Petitioners claim for religious accommodation and denied
relief without a hearing The Petitioner Fred Cruz in an action filed in the
U S District Court Southern District. Texas alleged that he was subjected
to penalties because he was a Buddhist and requested material to
accommodate his religious practices The District Court denied relief
stating that religious accommodation was within the discretion of prison
officials The U 8 Court of Appeals 51’1 Circuit affirmed The U S
Supreme Court reversed stating that Cruz by alleging that he was denied
religious accommodation and a reasonable Opportunity to pursue his faith
stated a palpable claim under the First Amendment NeVertheless a
prisoner bears the burden of. showing that his requested religious
accommodation is genuine and that the prisons denial of. the request
imposes a substantial burden on the exercise of his religion Ramirez 0
Collier 142 S Ct 1264 1277 (2022]
(ll 25 When the policies or practices of. a prison violates constitutional
guarantees it is the duty of. the courts to protect the constitutional rights
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affected Turner 0 Safley, 482 US 78 84 (1987) In fulfilling this duty
the court must determine whether the actions of the prison unlawfully
burdens the free exercise of religion It logically follows that in this case
Alexander must show twat he requested the accommodation and it Was
denied or that the prison has implemented a policy or regulation that
proh1b1ts the accommodation Alexander has not shown either Therefore
the Court cannot determine whether there was an impermissible
encroachment on his constitutional right to the free exercise of religion
C Claims of Cruel and Unusual Punishment
9! 26 The Eighth Amendment to the US Constitution prohibits the
infliction of cruel and unusual punishment US Const. Amend VIII
Although persons convicted of crimes may be deprived of certain rights
fundamental to liberty the Constitution recognizes the rights which
prisoners retain 1n the essence of then- human dignity ‘Society is entitled
to impose severe sanctions on an offender to eXpress its condemnation of
the crime and to seek restoration of the moral balance caused by the
offense Graham v Florida 560 US 48 71 (2010) After incarceration
only the unnecessary and wanton infliction of pain constitutes cruel
and unusual pumshment forbidden by the Eighth Amendment Wilson v
Setter 501 US 294 298 {1991) But under the Eighth AInendment the
State must respect the human attributes even of those who have
committed serious crimes Graham, at 59
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‘1! 27 To support his claim of violation of the Eighth Amendment
Alexander alleges {1) that he was put In segregation for 16 months When
he first arrived at Red Onion State Prison (2) that he is forced to drink
i water from a faucet that IS connected to the Fame plumbing system as the
toilet (3} that he was denied adequate medical services at Wallens Ridge
1 Segregation
‘11 28 The mere fact that a person is placed in segregation does not
constitute a violation of the Eighth Amendment prohibition against cruel
and unusual punishment Segregation may be nece8sary to serve
institutional security correctional purposes or the saf ty and welfare of
the inmate Meachum v Fano 427 U S 215 225 (1976] In order to satisfy
an Eighth Amendment claim conditions of confinement must be such as
to deny the inmate the minimal civilized measure of lifes necessities
Wilson 502 U S at 298 A prisoners confinement in an administrative
segregation for 15 months did not implicate a liberty interest Milthouse v
Arbasak 373 F Appx 135 138 (3 ‘3 Cir 2010) The Court in Millhouse also
found that placement m segregation does not constitute an atypical
hardship that rises to the level of a constitutional violation Alexander has
not alleged any facts which show that his placement in segregation was
attended by the deprivation of the minimal measure of lifes necessities
or that he was subject to circumstances that can be characterized as the
wanton and unnecessary inflictiOn of pain‘ Rhodes 0 Chapman, 452 U 8
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337 345 (1981) Moreover Alexander testified that his segregation was
imposed at Red Onion State Prison when he was first transfierred from the
Virgin islands Habeas Corpus applies to existing conditions of unlawful
confinement for Thich the Court can provide relief Hab COT Rule (2)
(a)(1) By his own testimony Alexander is no longer subject to those
conditions Therefore the claim is moot and habeas corpus relief is
inapplicable
2 Unsanitary Cell Conditions
fit 29 Alexanders allegations indicate that his cell is equipped with a
faucet and toilet which are served by the same source of water He
contends that the fact that the toilet and faucet are fed by th same water
source creates an unsanitary condition in his cell He further contends
that his being forced to drink water from the faucet constitutes cruel and
unusual punishment Alexander does not contend that he has suffered
any ill health of other physical harm as a result of drinking th water He
merely insists that unlike what he would have been able to do in the Virgin
Islands he is not at liberty to purchase bottled water as an alternative
‘I[ 30 From all appearances Mexander is sirnply contending that hf in
Wallen 3 Ridge is more aggravating and burdensome for him than it would
be if he were in the Virgin Islands In effiect Alexander is urging this Court
to find that he is being unfairly punished m violation of his constitutional
protections because he is not able to live as comfortably as he would be in
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the Virgin Islands Alexanders discomfort with confinement is
understandable However the Constitution does not mandate
comflortable prisons Wilson at 298 [citing Rhodes v Chapman, 452 U S
337 i349 (1981)) “The natural desire of an indivitilual to be released is
indistinguishable from the initial resistance to being confi ned Meachwn
at 224 The fact that Alexanders confinement causes him discomfort and
interfleres with his understandable desire to live as comfortably as possible
with as little restraint as possible during confinement does not mean that
the conditions of his confinement constitute punishment Bell. 441 U S at
537
3 Denial of Medical Services
cll 31 “The Eighth Amendment Is not to be regarded as a static concept
but is to draw its meaning from the evolving standards of decency that
marked the progress of a maturing society’ Gregg 0 Georgia, 428 U S
153 173 (1976) “Today the Eighth Amendment prohibits punishment
which although not physically barbarous involve the unnecessary and
wanton infliction of pain Rhodes 452 U S at 345 (citing Gregg v Georgia.
supra) The denial of adequate medical services to a prisoner may implicate
the Eighth Amendment However this does not mean that every claim by
a prisoner that he has not received adequate medical treatment states a
violation oi? the Eighth Amendment Estelle u Gamble 429 U S 97 105
(1976) In order to state a cognizable claim a prisoner must allege acts or
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omissions sufficiently harmful to evidence deliberate indiffierence to
serious medical needs Id. Whether the attendance to the prisoners
medical needs is characterized as inhumane conditions of confinement or
failure to Tddress medical needs the deliberate indiffiexjence standard is
appropriate Wilson, 501 U S at 303
$32 Alexander testified that he contracted a fungal infection to his toe
and was provided treatment that did not cure the infection He further
testified that the treatment he was provided is a pharmaceutical product
called Lamisii He started taking the Lamisil but stopped because one of
the side effects is that it damages the liver He also contends that there is
a product that he knows of which w0uld avail him of a cure that he would
be able to obtain had he been in the Virgln Islands He claims that he is
unable to obtain the product at Wallens Ridge becaUSe prison officials do
not allow him to contact outside vendors Except for his own testimony
Alexander did not provide any evidence that the product he suggested
actually cured a toenail fungal mfection
‘11 33 Dr Benny Mullins the institutional physician was called to testify
on behalf of the Respondents During his testimony Dr Mullins stated that
fungal infections of the toe are frequent occurrences in prison He also
testified that the Federai Bureau of Prisons and the Virginia Department
of Corrections do not recommend treating fungal infections because they
are very difficult to treat and sometimes the treatment is worse than the
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inflection itselfi (Transcript p 88) Dr Mullins also stated that Alexander
was sent to a surgeon and a dermatologist for treatment in relation to his
fungal infection Alexander was tested for liver damage before and three
iweeks after using Lamisil and the tests did nor show any symptoms of liver
damage However Alexander st0pped using the medication after three
weeks Thereafter Alexander and was offered alternative treatments
including a topical antibiotic and vinegar foot bath as recommended by
the dermatologist In each case Alexander used the treatment only
partially From Dr Muilins testimony which Alexander does not deny or
refute it appears that prison officials undertook measures to ensure that
Alexander received treatment for his fungal inflection There is no evidence
that prison officials responded to his medical needs with the deliberate
indiffierence that supports a claim ofi an Eighth Amendment violation
D Claims of Statutory Violations
‘1[ 34 A persons liberty is protected even when the liberty itself is a
statutory creation of the state Meachum, 427 U S at 226 Alexander
asserts that the Respondents violated the provisions of the Virgin Islands
Code which authorizes his transfer to Virginia when they failed to ensure
that the prison to which he was being transferred has adequate
educational or vocational programs Title 5 V I C § 4503(c) states as
follows
The Director of Corrections is authorized to enter into
agreements to use the correctional or detention facilities
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of the United States Bureau of Prisons or the
correctional facilities of any state or local government or
private correctional entity located in the United States
its territories possessions commonwealths or the
District of Columbia which are accredited by the
Ameriean Correctional Association when the Director
of Cinections determines that detention andL:
correc tonal facilities within the Virgln Islands
inadequate to serve the best interest of the inmate or
the general interest or welfare of the Territory provided
that as a condition of and prior to the transfer of any
inmates the Director of Corrections shall ascertain and
insure the availability of educational and/or vocational
programs at the institution they are to be transfixed to
for the purpose of enabling such inmates to gain
marketable skills and provided flurther that no inmate
is to be transferred to any institution lacking any such
program(s) 5 V I C §4503
‘11 35 The applicable provision 0S §4503 (c) appears to give Alexander the
right not to be transferred to a prison in which there are no educational or
vocational programs Alexander claims that the only vocational program
at Wallens Ridge is a custodial maintenance program which only teaches
skills on how to become a janitor He states that as compared to the Virgin
Islands where there are more programs which offer a wider range of job
skills this is inadequate Even if it is true that the Virgin Islands offers a
wider range of educational or vocational programs that fact is not
dispositive of whether prison officials violated the terms of the statute The
statute prohibits the transfer of an inmate to an institution that is lacking
in any such program(s) [emphasis added] The statute does not require
prison officials to determine that the programs at the receiving institution
are identical or substantially comparable to the programs in the Virgin
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Islands
‘H 36 The establishment of educational and vocational programs is within
the authority and discretion of prison officials Ms Marsha Hensley the
Institutional Program? Director for Wallens Ridge testified mitt the
Custodial Maintenance Program Is the only job skills program at Wallens
Ridge However she also testified that there are various other programs
which have been implemented to meet the rehabilitative goals of the
Institution She listed among others the Thinking for a Change Program
the Decision Point Program and the Building Opportunities of Knowledge
Program She further stated that the prison administration would
periodically have outside resources come in to meet and speak with the
inmates about setting up and operating a busmess [fianscript p 132]
‘1[ 37 Although it is clear that there are educational programs at Wallen 3
Ridge Alexander is urging this Court to find that prison officials violated
§ 4503(c) became the programs at Wallens Ridge are not to his
satisfaction or In his estimation compare poorly with the programs in the
Virgin Islands This would require this Court to determine which
educational or vocational programs are more appropriate for prisons The
U 8 Supreme Court has emphasized that courts must defer to the policy
judgments of prison officials in matters of prison administration See Bet!
v Wdfish, 441 US 520 531 (1979) Procunier vMartinez
416 US 396
405 (1974) (finding that courts are ill eqniipped to deal with the
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Memorandum Opinion
increasingly urgent problems of prison administration) Alexander has not
shown that Wallen 5 Ridge is lacking in educational or vocational programs
that would enable inmates to develop marketable skills For instance the
programs identified by M? Marsha Hensley may well provide inmates wrth
marketable skills to accommodate their return to society or maintain
themselves within the prison system This Court is not at liberty to say
that the prisons “Thinking for Change Program or Opportunities of
Knowledge Program do not meet the category of vocational or educational
programs that would enable the inmate to acquire or develop marketable
skills They may not be identical to the Virgin Islands programs but that
does not mean that the institution is lacking in appropriate programs for
the development of marketable skills
‘1[ 38 Alexander also asserts that prison officials subjected him to unequal
treatment in violation of Virginia Code§ 53 l 216 when they placed him
in segregation upon his initial arrival at Red Onion State Prison This
provision states as follows
All inmates who may be confined in an institution pursuant
to the provisions of this compact shall be treated in a
reasonable and humane manner and shall be treated equally
with such similar inmates of the receiving state as may be
confined in the same institution The fact of confinement in a
receiving state shall not deprive any inmate so confined of any
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legal rights which said inmate would have had if confined in
an appropriate institution of the sending state Va. Code Ann
§ 53 l 216
fill39 Alexander did not allege any facts refarding the conditions of his
placement in segregation except that he was not allowed into the general
population and permitted to do the things that were allowed in the general
population He has not alleged that he was segregated for any reason that
was related or unrelated to punishment He has not alleged that he was
deprived of a protected right for an unlawful reason Administrative
segregation is permissible at the discretion of prison officials A prisoners
rights may be diminished by the needs and ex1gencies of the institutional
environment W011)r at 555 But as has been previously noted this is not
a claim that is eligible for habeas corpus relief since the circumstance of
his segregation no longer emst
E Claims of Non Statutory Violations
‘ll 40 Alexander makes various claims which do not identify any
deprivation of a statutory or constitutional right nor allege facts which
would support a violation He claims that the light in his cell is on 24 hours
per day This may be a security measure employed by the prison officials
He claims that the food is unsatisfactory because he cannot get the f ruits
and vegetables he desires and would be available to him in the Virgin
Islands However he has not alleged any facts to indicate a danger to his
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Memorandum Opinion
health or welfare The fact that life at one prison facility may be more
burdensome or disagreeable than another does not indicate a violation of
statutory or constitutional rights Meachum at 225 He claims that prison
ofificials violated die terms at the transfer compact when they faile to pack
his belongings and ship them to him This claim is based on contractual
rather than statutory or constitutional rights Alexander may be a third
party beneficiary of the agreement between the Virgin Islands and Virginia
but the violation of~ the terms ofi this agreement does not amount to the
violation ofi any statutory or constitutional provision which confer rights
to which Alexander may be entitled Alexander does not support any of
these claims with facts indicating that he has been deprived of a statutory
or constitutional right or subjected to unnecessarily oppresswe
circumstances For instance Alexander does not allege that food
preparation and service are of: such poor nutritional or hygienic sufficiency
that it poses an unreasonable threat to his health Neither has Alexander
alleged that he requested a particular diet because of his health or religion
and that request was denied Finally Alexander claims that he was forced
to pay for medical services but also testified that he no longer has to pay
because that the policy has been abolished This claim is therefore moot
and is ineligible for habeas corpus relief Overall th$e claims do not meet
the threshold of: constitutional or statutory violations which Would entitle
Alexander to habeas corpus relief
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Conclusion
‘l[41 Jensen Alexander has petitioned this Court for relief in a habeas
corpus action alleging that prison officials violated various constitutional
and stjtutory provisions in the way they administrar his confinement
Alexander has failed to provide the evidence that satisfies the standards
which support his claim for relief Therefore the claim for relief is DENIED
DATE fling 2/, @0213 H mm; JOMO MEADE
Judge of the Superior Court
CERT IFIED TO BE A TRUE COPY
ATTEST This _-2«V’an of ?&Lzozz
TAMARA CHARLE
1W CLERK F E co RT
Clerk of the Court By Court Cler 7.,—
By 18W (1 6mm
Court Clerk Supervisor
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