Editor’s note: The reporter’s aunt, Nan Haynes, and father, John Lipsitz, represented plaintiffs against Sheriff Timothy Howard in 2010 and 2006. Haynes was also a plaintiff in a 2017 lawsuit compelling Howard to properly document and report prisoner suicide attempts. John Lipsitz was cooperating counsel on the New York Civil Liberties Union’s 2014 lawsuit against the Erie County sheriff’s department for Freedom of Information Law (FOIL) violations.
India Cummings called the police herself.
Disoriented and desperate on Feb. 1, 2016, the 27-year-old resident of Lackawanna, New York, grabbed her landlord’s phone and dialed 911. She was, in the words of her mother, Tawana Wyatt, “asking for help.”
Cummings had no criminal history or previous contact with police, aside from minor vehicle and traffic infractions. She had no known mental health problems. But she was behaving strangely enough that day to attract the attention of her neighbors and landlord.
After the police arrived, despite having her own car nearby, Cummings reportedly approached a Ford Taurus, punched the driver, stole his car, and led police on a chase during which she struck three other vehicles. Eventually, the police forced her from the car and placed her under arrest.
Cummings’s behavior was shockingly out of character for a “kind, gentle, low-key human being” who “brought light and joy to the world,” people who know her family told The Appeal. Wyatt said her daughter was a “beautiful, spirited girl” who loved the Bible, loved to read, and was always “researching things that she didn’t understand or didn’t know.”
But instead of being taken to a hospital for a psychiatric evaluation, Cummings was taken to the Erie County Holding Center in Buffalo, New York, where she spent the next 16 days.
By Feb. 21, she was dead.
According to a June 2018 report by the New York State Commission of Correction Medical Review Board, which was established by the New York State Legislature to investigate deaths in state correctional facilities, Cummings’s mental and physical health steadily deteriorated throughout her time in jail. She refused food and medication. She flooded her cell. In the days leading up to her death, she was babbling, smearing food on herself, and lying in a pool of her own urine.
The pathologist who conducted her autopsy, Dr. Scott F. LaPoint, noted in his report that Cummings reported having smoked “laced” marijuana to jail medical personnel. But he also wrote that toxicology studies “did not provide an explanation for her prolonged duration of bizarre behavior or her death.”
According to her autopsy report, Cummings also reported that her arm was injured during her arrest by the Lackawanna Police Department. (The Appeal’s FOIL request for Cummings’s arrest records was denied by the Lackawanna police chief on the grounds that it “would interfere with law enforcement or judicial proceedings.”)
Throughout her daughter’s incarceration, Wyatt was repeatedly told that she was refusing visits. That’s why, Wyatt told The Appeal, she “started popping up in court to try to see her. When I finally saw her … I immediately knew something was wrong, that she needed some type of medical assistance.”
Desperate, Wyatt “called anyone who would answer the phone … I said, ‘I want to know that my daughter is OK. I want to know if she’s breathing.’” When Wyatt finally reached someone at the holding center, she was told her daughter had been put under watch. (Cummings’s autopsy report notes that, on Feb. 11, “she was placed on a two-to-one observation out of concern for potential self-injurious behavior.”)
Wyatt’s attorney, Matt Albert, said he told a judge on Feb. 16 that Cummings was in dire need of medical help. The judge agreed. Cummings was supposed to be moved within two days, as soon as a hospital bed opened up.
When I finally saw her … I immediately knew something was wrong, that she needed some type of medical assistance.
Tawana Wyatt mother of India Cummings
On Feb. 17, her organs failing, Cummings was rushed to Buffalo General Medical Center. She died four days later from cardiac arrest caused by a massive pulmonary embolism, acute renal failure, a blood ailment, and dehydration.
The medical and mental health care Erie County provided to Cummings, the Commission of Correction report said, was “so grossly incompetent and inadequate as to shock the conscience”—and her death “should be ruled as a homicide due to medical neglect.”
Although LaPoint’s autopsy report lists Cummings’s untreated broken arm and subsequent blood ailmen, renal failure, dehydration, and pulmonary emboli as factors in her death, he concluded that the manner of death was undetermined, in part because the cause of her arm injury was “unknown” (“According to hospital records,” LaPoint wrote, “she did not remember how the injury occurred and gave varying reasons for the injury.”)
The commission report on Cummings’s death directed the Erie County medical examiner to “review the forensic pathology of this case” in light of the medical review board’s findings “with an eye toward a restatement of the cause of death to better reflect the circumstances and the autopsy findings that Cummings’ death was attributed to traumatic injury received during her arrest with a prolonged period of continual medical neglect and therefore should be ruled as homicide due to medical neglect.”
LaPoint told the Buffalo News in July that he stands by his determination and will not not change it unless the medical review board shows him “substantial information, of which I was previously unaware.” Medical examiner’s office officials said they did not intend to alter or revise LaPoint’s findings.
In August, Erie County District Attorney John J. Flynn Jr. asked the New York State attorney general’s office to investigate Cummings’s death. Flynn did not conduct the investigation himself because one of his employees is married to a holding center deputy. The AG’s office announced in September that it would conduct an investigation, and Amy Spitalnick, then the office’s communications director, confirmed this to The Appeal in a Nov. 21 email, as well as its commitment to “conducting an independent, comprehensive, and fair investigation.”
Cummings’s death was part of a pattern. A February 2018 commission report deemed Erie County jails among the worst in New York State for being in violation of state law. The jails listed in the report “pose an ongoing risk to the health and safety of staff and inmates and, in instances, impose cruel and inhumane treatment of inmates in violation of their Constitutional rights.”
Timothy B. Howard was first appointed, then elected sheriff of Erie County in 2005 and re-elected in 2009, 2013, and, by a narrow margin, in November 2017. Cummings was one of the 24 people who have died after being incarcerated in an Erie County jail during Howard’s tenure. The Erie County Holding Center can house as many as 638 inmates, and the Erie County Correctional Facility holds approximately 880 inmates. As of Dec. 30, 2017, according to the Buffalo News, “the Holding Center housed 347 inmates and the [Erie County Correctional Facility] housed 592 inmates.” According to the Erie County sheriff’s office, the Holding Center processes more than 20,000 inmates annually.
When its report on the state’s worst-run jails came out, Howard dismissed the commission’s findings as “picayune.” Asked to comment on the treatment of India Cummings and the number of inmate deaths on Howard’s watch, Scott Zylka, a public information officer in the sheriff’s office, wrote in an email, “Due to litigation, the Erie County Sheriff’s Office cannot provide comment.”
Many Erie County jail prisoners have died by suicide, including a 26-year-old man being held on minor charges, a 26-year-old woman being held on misdemeanor charges, a 29-year-old man who hanged himself, and an 18-year-old who hanged himself one day after being taken off of suicide watch. One man was killed by a fellow prisoner; another was beaten into a coma by a prisoner from whom he had sought protection.
Others, like Cummings, appear to have died from lack of medical care. In 2007, a 42-year-old man died after suffering from malnutrition, dehydration, and renal failure while in the Erie County Holding Center. A lawsuit filed by his widow alleged that jail officials knew weeks before the man’s death that he wasn’t sleeping, eating, or taking prescribed medications. The county agreed to pay $49,995 to settle that suit. A 54-year-old woman died from a stroke after she failed to receive crucial blood-pressure medication while in the holding center in 2008. The county paid $90,000 to settle a lawsuit over her death. According to a lawsuit filed against Howard in 2006 on behalf of a diabetic man named Craig Beatty (this reporter’s aunt, Nan Haynes, and father, John Lipsitz, represented the plaintiff in that case), prisoners are routinely denied adequate medical care in Erie County jails. According to the suit, Beatty became so desperate for water after being deprived of insulin that he drank from the toilet in his cell.
In a Dec. 23, 2008, sworn statement filed in the Beatty lawsuit, Howard said that he was not “aware that Mr. Beatty had any medical issues or complaints about his medical treatment.”
“I was not personally involved in the booking process, decisions on housing Mr. Beatty, transport of Mr. Beatty to or from court, or in the provision of medical treatment to him,” Howard continued. “Neither I, nor the rest of the Holding Center staff, deliberately disregarded a serious medical need of Mr. Beatty’s.”
In 2010, the county paid $150,000 to settle Beatty’s lawsuit.
A Commission of Correction deemed Erie County jails among the worst in New York State for being in violation of state law. Howard dismissed the commission’s findings as “picayune.”
Except in cases about which the medical review board issues a report, it’s difficult to find even basic information on the circumstances surrounding prisoner illness and death in Erie County jails. In March, the sheriff’s office denied a FOIL request from the Buffalo News for information on a prisoner who was, her family said, hospitalized after being denied prescription medication by Erie County Holding Center employees.
In 2012, a 35-year-old man named Richard A. Metcalf Jr.—who, like Cummings, appeared to have been experiencing serious mental health issues at the time of his arrest—died after Erie County Holding Center deputies beat him and caused him to suffocate while improperly applying a spit mask. According to a board report on his death, Metcalf, who was in jail for breaking into a catering business, was banging his head against the wall, biting his arms, smearing blood on the walls, and spitting blood at the deputies when they restrained him. Although the Erie County medical examiner listed Metcalf’s cause of death as “acute and subacute myocardial infarction” and his manner of death as “homicide,” the medical review board concluded that Metcalf’s death was actually “a homicide caused by the restraint methods used” by sheriff’s deputies and “heart disease was not a factor.”
Had Metcalf received “appropriate crisis level mental health care”as well as “proper restraint methods and pharmacologic interventions” and “properly supervised use of physical force,” the medical review board concluded, his death “could have been prevented.”
Because the wife of a jail sergeant involved in the incident with Metcalf worked for the Erie County district attorney’s office, a special prosecutor, Lori Pettit Rieman, was appointed. Although Rieman, a Republican, knew in October 2017 that she wouldn’t be charging any deputies in Metcalf’s death, she waited until after the November 2017 election to announce it, explaining in an Oct. 11, 2017 email to two state police investigators, “Apparently, the sheriff is up for re-election and it would possibly (I doubt it though) affect that,” and “prosecuting crimes is not a political event in my county.”
On a local radio program in April 2017, in response to a question about criticisms of his jails, Howard defended his deputies: “An act of violence, striking out—you see it in sports, but there’s a fight going between an inmate and staff, and an understanding that the inmate yielded, maybe you didn’t comprehend that for a second or two after,” adding, “but if it takes much longer than that, then we’re thinking that’s misconduct.”
The U.S. Department of Justice (DOJ) sued Erie County in 2009, claiming that confinement conditions in Erie County jails violated prisoners’ federal constitutional rights by, among other things, failing to protect them from harm (including self-harm) and failing to provide adequate medical and mental health care. Eventually, a settlement was reached that required the county to, among other things, ensure that all inmates “receive a mental health screening as part of the medical intake screening within 3 days of admission” and hire consultants to issue regular reports on its compliance with the reforms outlined in the settlement.
It is also noted in the settlement that, “The Parties enter into this Stipulated Order of Dismissal (“Stipulated Order”) and desire to compromise, satisfy and resolve fully and finally all differences or disputes between them in and to avoid the further expense, disruption and uncertainty of litigation, without admitting any liability. … The County does not agree or admit that the Eighth or Fourteenth Amendments require any of the specific remedies in this Stipulated Order.” Furthermore, “with respect to protection from harm, medical care, mental health care, and environmental health and safety,” the issue of liability “has not been litigated.”
The New York Civil Liberties Union attempted to unseal those compliance reports in 2012, with partial success. In 2014, the Second Circuit Court of Appeals overrode an earlier agreement between the county and DOJ officials to keep the reports secret. The latest report reviewed by The Appeal was dated Oct. 25, 2018. While it notes some improvements, it also assesses the county as being in “partial compliance” on the settlement’s mental health care provision, in part because of staffing shortages.
Sheriff Tim Howard is a Republican who in 2017 spoke in uniform at a pro-Trump “Spirit of America” rally in downtown Buffalo, where he was photographed amid pro-Trump demonstrators, some of whom were holding flags and signs with Confederate and Nazi imagery. Jeremy J. Zellner, chairman of the Erie County Democratic Party, characterized Howard’s appearance at a rally with “racists and white supremacists handing out literature” as “disgraceful” and called on him to resign. In response, Howard issued a public statement equating Black Lives Matter counterprotesters with white supremacists and stating, “I do not support any group that uses violent and discriminatory rhetoric, but how can I limit their god given rights to public assembly and free expression” and “I don’t support a white supremacist’s view of discrimination and bigotry as I don’t support Black Lives Matter’s hate and call for killing law enforcement personnel.”
Like some right-wing sheriffs around the country, Howard is affiliated with the Constitutional Sheriffs and Peace Officers Association, which believes that local sheriffs have the authority to refuse to enforce any laws they deem unconstitutional (in Howard’s view, gun safety laws). The organization includes Joe Arpaio, the anti-immigrant former sheriff of Maricopa County, Arizona.
In the Obama years, Howard’s membership in the Constitutional Sheriffs meant standing up to a federal government perceived as anti-gun and pro-immigrant. With Donald Trump in the White House, Howard has focused on defying New York Governor Andrew Cuomo and Democratic Erie County legislators. Howard responded to Cuomo’s 2017 executive order banning state agencies and police from asking about immigration status by directing law enforcement personnel to continue asking people about their immigration status.
Howard is affiliated with the Constitutional Sheriffs and Peace Officers Association, which believes that local sheriffs have the authority to refuse to enforce any laws they deem unconstitutional.
Howard also has a long history of defying state agencies like the Commission of Correction, which mandates that prisoner suicide attempts be reported as “life-threatening situations.” Howard prefers to avoid reporting them at all by categorizing them as “manipulative gestures” or “individual inmate disturbances.”
In November, four people (one is this reporter’s aunt, Nan Haynes) won a lawsuit compelling Howard to properly document and report these incidents. (He had promised to do so as recently as 2017, but quickly reverted to his preferred methodology.)
Howard once told the Buffalo News that he regularly invites members of the public to visit his jails and assess the conditions for themselves, adding, “it’s not a country club, and we don’t want it to be a country club.” Asked to comment in May on “the public perception out there that inmates constantly die” in the Erie County Holding Center, Howard replied, “Bad things happen in jails because of the people who are sent to jail. We make reasonable efforts to prevent bad things from happening.” At a July meeting of the Public Safety Committee arranged by Erie County Legislature Majority Leader April Baskin, Howard dismissed the commission’s report on India Cummings’s death as “nothing more than the opinion of a group from Albany that has no firsthand knowledge of the subject about which they are making comment.”
It’s not a country club.
Sheriff Howard commenting on his jails
Howard has also been accused of negligence when it comes to escapes from his jails. The Commission of Correction’s investigation into Ralph Phillips’s escape from the Erie County Correctional Facility “revealed serious managerial and executive level operational policy and procedure breakdowns of proportions which rise to the level of willful negligence and professional incompetence.” Phillips killed a state trooper while a fugitive in 2006. The sheriff’s office fired a guard, David Padilla, for allegedly ignoring an alarm that went off the day Phillips escaped. In February 2011, an arbitrator accepted Padilla’s attorney’s argument that the county couldn’t prove Padilla had ignored the alarm, or even that one had sounded, and ruled that Padilla should be reinstated.
Three years later, the same agency accused Howard of “gross negligence and incompetence” following the 2009 escape of a prisoner from the Erie County Holding Center. As detailed in the report on Phillips’s escape, the fact that Erie County jails are “dangerously understaffed”—and the staff they have is poorly trained with inadequate oversight—creates a dangerous environment for prisoners and jail employees.
According to the Buffalo News, Howard responded to the Commission of Correction’s 2009 report by dispatching a subordinate to “blast the report as a ‘vicious personal attack on Sheriff Howard based on politics and an attempt to alarm the public.’”
Employees, too, have serious complaints about Howard’s office. In 2007, Jacqueline Kretzmon, a lieutenant at the Erie County Holding Center, filed a complaint with the state Division of Human Rights alleging that she was being harassed by other employees. The county settled, and promised as part of that settlement that Kretzmon would no longer have to report directly to a supervisor she felt had not acted to address her concerns and from whom she feared retaliation.
In 2010, Kretzmon reported three deputies for allegedly violently abusing a prisoner. Those deputies were fired. About eight months later, according to a federal lawsuit she filed in 2011, a decapitated rat was placed in Kretzmon’s driveway. In 2017, a judge ruled that the county had violated the terms of its original settlement with Kretzmon by forcing her to report to the supervisor from whom that settlement was meant to shield her. The judge also denied her complaints of retaliation, stating that they “lack[ed] sufficient evidence of a retaliatory motive” and “there is no plausible basis to infer that the County’s inability to curb online commentary about [Kretzmon]” was motivated by the fact that she had engaged in activity protected by Title VII of the Civil Rights Act.
“Finally,” the judge wrote, “even assuming that [Kretzmon’s] general complaints about her work conditions, i.e., being forced to work alone, work double duty, work overtime or cover multiple positions; being assigned additional work or work more appropriately assigned to individuals of lower rank rise to the level of materially adverse employment actions … these complaints also lack any inference of causal connection to [her] protected activity.”
Howard’s attorneys filed a memo in support of the defendants’ motion to dismiss the case declaring that “all the allegations involving [Kretzmon’s] alleged civil rights violations are nothing more than her claimed dissatisfaction with her work surroundings.”
Nevertheless, the county paid $239,000 to settle her lawsuit, on top of the $75,000 it paid to settle her original complaint. Excluding lawsuits and settlements involving Howard’s own employees, the cost of defending and settling lawsuits arising from inmate deaths, injuries, and illnesses is significant. Erie County taxpayers have already spent close to $2.5 million, as of January 2018. Wyatt, India Cummings’s mother, filed a lawsuit against Howard in federal court in May 2017.
Although he has said that he won’t seek re-election, Howard’s current term doesn’t end until January 2022. Despite the fact that he has been heavily criticized by the state and federal government—and in some quarters, because of it—Howard retains a base of support in Erie County, where Donald Trump took 45.4 percent of the vote to Hillary Clinton’s 50.1 percent. (That support appears to be weakening; Howard won his last election by only a 1.58 percent margin.)
Baskin, the county legislature’s majority leader, is working to restore and embed in the county charter a Corrections Advisory Board that disbanded when Republicans took control of the legislature in 2014. (Democrats regained control in 2018.) Baskin told The Appeal she is calling on Howard “to be more transparent and do a better job.”
I have suffered many losses, but the loss of my daughter is by far the worst. I just don’t understand it. I never will.
Tawana Wyatt mother of India Cummings
Asked what should happen to sheriff’s office employees whose conduct contributes to the death of a prisoner, Baskin said, “Anybody that plays a role in homicide or wrongdoing needs to be brought to justice themselves for the sake of the life that is lost.” Governor Cuomo, she said, should “seriously consider” exercising his right under the state Constitution to remove Howard from office. Still, she noted, Howard is a “duly elected” official, and elected officials cannot be recalled in New York State.
India Cummings died 20 days after being taken to the Erie County Holding Center in February 2016. Three people held in Howard’s jails have died since then, two of apparent suicide and one of an apparent heart attack.
“I have suffered many losses, but the loss of my daughter is by far the worst,” Wyatt said. “I just don’t understand it. I never will.”