Mount Olive Correctional Center in Fayette County, W.Va.
CHARLESTON – A Mount Olive Correctional Complex inmate has filed a proposed class-action lawsuit alleging top prison officials misused tens of thousands of dollars from a fund meant be spent “for the benefit and welfare of inmates incarcerated.”
Marcus McKinley filed his complaint July 29 in Kanawha Circuit Court against the West Virginia Department of Corrections and Rehabilitation, Mount Olive Superintendent John Frame, Deputy Superintendent Drew Ward and Deputy Superintendent of Programming Brenda Ward. The Wards are married.
McKinley the administrators of diverting roughly $45,000 from the Inmate Benefit Fund to renovate executive housing and offices rather than pay for inmate programs and facility improvements that directly benefit prisoners.
McKinley seeks class certification on behalf of inmates in state-run prisons and juvenile facilities whose IBF accounts were allegedly affected. He also seeks to be the class representative.
According to the filing, each institution’s IBF fund is required to be held “for the benefit and welfare of inmates incarcerated” there and limits expenditures to 16 statutory categories, such as open-house visitation functions, holiday events, cable television service, recreational supplies, post-secondary education and “facility improvements that directly benefit the inmate population.”
“Improving the personal residence of correctional staff, furnishing correctional executives’ private living quarters, or building custom fireplaces in an administrator’s office are not among the sixteen enumerated uses,” the complaint states.
Relying on an affidavit by Susan Malay, a career development specialist stationed at Mount Olive, the complaint alleges Frame and the Wards “approved approximately $45,000.00 worth of materials to improve the Superintendent housing located outside the gates of MOCC, where Josh Ward and Brenda Ward reside, using funds allegedly taken from the IBF.”
The filing says Josh and Brenda Ward allegedly pay “only $100.00 per month” to live in the superintendent’s housing and that Mount Olive pays all utilities.
Malay’s affidavit also links IBF money to a “new fireplace” built in Frame’s office and to new office furniture for Josh and Brenda Ward “as well as furniture for the Superintendent’s residence,” the complaint states.
McKinley also claims the labor to complete the improvements to the superintendent residence was allegedly performed by inmates, noting whether those inmates were paid is “an open factual question” to be explored in discovery, and says the pleading “is not to be read as a final representation on that point.”
He contends “diversion of inmate benefit funds for illegitimate or illegal purposes is also occurring at other state-run correctional institutions” and says the class could include “hundreds or thousands of current and former inmates” across 25 adult and 10 juvenile facilities.
In addition to the defendants violating state code by using the IBF money, McKinley accuses the individual defendants of breach of fiduciary duty and unjust enrichment. He also seeks declaratory judgment that the expenditures violated state code and seeks an accounting of IBF receipts and expenditures at all state correctional institutions. He also seeks injunctive relief requiring Frame and the Wards to administer IBF only for designated purposes.
In addition to compensatory damages, McKinley seeks Frame and the Wards to pay restitution and disgorgement. He also seeks attorney fees, court costs, pre- and post-judgment interests and other relief.
McKinley is being represented by Stephen P. New, Emilee Wooldridge and Morgan Wilkes of Stephen New & Associates in Beckley as well as by Timothy Lupardus of Lupardus Law Office in Pineville and by Zachary Whitten of The Whitten Law Office in Pineville. The case has been assigned to Circuit Judge Tera Salango.
New declined comment on the case. Last week, the same attorneys filed another lawsuit on behalf of another Mount Olive inmate alleging a former prison industries supervisor ran a scheme to steal state‑purchased materials and force prisoners to build projects for his personal home while top officials allegedly looked the other way.
Kanawha Circuit Court case number 26-C-903
