Jensen Alexander v. Winnie Testamark, Director of the Bureau of Corrections and Joe Booker, Warden, Golden Grove Correctional Facility

Opinion

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

u

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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

Jensen Alexander I) Winn: estamark. et a1 Ci; )5. 2023 V1 Super 18 SK 2013 CV 316 Manorandum Opinion

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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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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Jensen Alexander 0 Winn flestamark et a! C as 2023 VISuper 18 SK 2013 CV 316 Memorandum Opinion

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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Jensen Alexander v Winn: estamark, et a! ct .25 2023 VI Szper 18 SK 2013 CV 316 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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Jensen Alexander 0 Winn estamark, et a! Cit Ls 2023 VI Super 18 SK 2013 CV 316 Memorandum Opinion

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