On October 8, 2002 James William Berry, a disabled inmate of the Mount Olive Correctional Center ("MOCC"), filed pro se for a Writ of Mandamus from the Supreme Court of Appeals of West Virginia to prohibit the Warden of MOCC from requiring Berry to share his single cell with another inmate. On November 27, 2002 the writ was granted on grounds that section 95-2-8.7 of West Virginia Code of State Regulations prohibited the housing of more than one inmate in a correctional facility (prison, not jail) cell designed for single occupancy. State ex rel. Berry v. McBride, No. 30696, 2002 WL 31681823 (W. Va. Nov. 27, 2002) (Judge unknown.)

On January 16, 2003, the Supreme Court of Appeals of West Virginia (Judge Larry V. Starcher) granted rehearing of the matter after the defendant pointed out a 1998 amendment to the code of state regulations, which removed correctional facilities from the purview of 95-2-8.7. The original opinion was withdrawn, private counsel was appointed to the inmate, and the Court appointed a special master (Judge Derek C. Swope) to gather information and depositions.

On November 30, 2005, the Supreme Court of Appeals of West Virginia (Judge Starcher), accepted the recommendations of the special master and issued a modified writ. As modified the writ of mandamus required that enforceable standards and procedures related to single- and double-bunking, which are based on pertinent medical and other relevant criteria, be developed and implemented by MOCC. Specifically those standards were to be applied to Berry in the event that he is again considered for double bunking. State ex rel. Berry v. McBride, No. 30696, 2005 WL 3214952 (W. Va November 30, 2005). We have no docket or further information for this case.

Greg Venker - 05/16/2006


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