A prisoner's lawsuit against the Colorado Department of Corrections, claiming a latex allergy so severe that he's suffered burns and respiratory problems when touched by glove-wearing guards, appeared to have been resolved last month when DOC officials testified that they no longer use latex in their facilities. But Albert Abeyta says he's still getting burned by his unsympathetic handlers, and the strange case seems to be headed back to federal court.
Abeyta, 44, a sex offender serving a sentence of seven years to life, claims to have experienced some "itchiness" from exposure to latex for some time. His sensitivity developed into an extreme case three years ago, when he was working as a kosher prep cook at the Colorado Territorial Correctional Facility. According to court records, he began to feel a burning sensation in his wrists, had difficulty breathing, and was diagnosed at the prison infirmary as having "an acute reaction to latex gloves."
That exposure led to treatment at a Pueblo hospital and eventually in the burn unit of the University of Colorado Hospital, where he received morphine and lapsed into a coma. After he got well, Abeyta testified, a nurse practitioner at the prison provided him with a document stating that he was not to be exposed to latex -- but a correctional officer ripped the note from his cell door and destroyed it.
Since 2009, Abeyta has spent time in five different prisons, enduring several encounters with latex-wearing officers doing pat-downs or escorting him. Some DOC officials have expressed skepticism of his claims of a severe allergy and accused him of using an inhaler to make odd marks on his skin. But the marks and burns persisted even after his inhaler was taken away from him, and his attorney suspects that some staffers went out of their way to harass Abeyta because he's a sex offender -- and thus on the bottom rung of the prison's social order.
"It seems like every time the staff got used to him and his latex problem, he'd get transferred again," says Boulder attorney Alison Ruttenberg. "It was like they were trying to avoid coming up with a policy for dealing with him."
Last month, U.S. District Judge Philip Brimmer concluded that Abeyta had presented sufficient evidence to show that he does have an extreme sensitivity to latex. But Brimmer declined to issue an injunction prohibiting the use of latex on Abeyta because "the probability of Mr. Abeyta being exposed to latex gloves in the future is increasingly unlikely." The DOC has recently made a "system-wide change" and uses vinyl gloves instead of latex in its prisons, according to testimony by Travis Trani, warden of the Centennial Correctional Facility.
Abeyta and Ruttenberg say that isn't true. Shortly after Brimmer's ruling, Abeyta was transported from Denver back to the Fremont prison outside Canon City -- and was patted down by a DOC officer wearing latex gloves, he claims. "I sustained numerous burns on the back of my neck and upper back," he states in a sworn affidavit, adding that another transport officer told him that his staff continues to wear latex "to protect themselves from diseases from the inmates."
Rutternberg has filed a motion requesting a hearing and reopening of the case. "They convinced the judge they weren't using latex any more, and that was clearly a misrepresentation," she says.
But DOC officials deny Abeyta's version of events."The department does not use latex glove during transports and searches," insists spokeswoman Katherine Sanguinetti. "We are disputing the allegations that Mr. Abeyta has made and are filing a response to the court as such."
Ruttenberg suggests that the larger issue raised by a case like Abeyta's is that the DOC rarely makes an effort to address inmate complaints of abuse until hammered by a civil-rights lawsuit -- and she's detected a pattern in which the department abruptly changes policy practically on the eve of trial, so that federal judges can declare the matter moot and decline to award attorney fees to plaintiffs. She cites a similar case she pursued, involving a mother being denied access to visit her son, in which the prisoner's claim that his rights were violated was dismissed by a federal judge because the visitation policy had changed.
"They changed the policy -- magically, by coincidence," Ruttenberg says. "I was unable to claim attorneys' fees. They said it had nothing to do with the lawsuit, but I don't believe it would have happened if I hadn't filed the lawsuit. It's a great result for the family involved, but I can't afford to do this for free."
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The end result of the policy reversals, she adds, is that attorneys are discouraged from taking on prisoner lawsuits out of fear that they won't be able to recover their costs.
Judge Brimmer has ordered the Department of Corrections to file by this Thursday a formal response to Abeyta's motion for a hearing.
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