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Articles by David M. Reutter

Interim Attorney Fees Awarded in Kentucky Good Time Lawsuit

by David M. Reutter

In December 2018, a Kentucky federal district court awarded interim attorney fees and costs totaling $228,445.08 in a class-action lawsuit alleging state prisoners were denied Educational Good Time (EGT) credit earned since July 15, 2011.

The suit was originally filed in Franklin County Circuit Court on September 11, 2012. After discovery and failed mediation efforts, that court certified the case as a class action in June 2015. It also found the Kentucky Department of Corrections’ (KDOC) EGT program was “arbitrary and capricious,” and granted declaratory and injunctive relief. The KDOC removed the case to federal court following that order.

The U.S. District Court ordered compliance with the circuit court’s order and required prison officials to hire an independent auditor to review prisoners’ EGT records. Class counsel then moved for an award of interim attorney fees, emphasizing the six-year duration of the case. The district court granted the motion, finding that “delaying a fee until conclusion of this matter would cause substantial hardship for the Plaintiffs and their attorneys, discouraging future similar civil rights actions.”

The prisoners are represented by attorneys Gregory A. Belzley and Camille A. Bathurst. The district court calculated the lodestar rate for ...

Former Louisiana Warden Nate Cain, Son of Infamous Burl Cain, Pleads Guilty

by David M. Reutter

“Yes, sir,” said Nathan Burl Cain II.

With that reply in March 2019, the former warden of Louisiana’s Avoyelles Correctional Center, now known as the Raymond Laborde Correctional Center, abruptly ended his federal trial on corruption charges. Facing 17 counts of wire fraud and one count of conspiracy to commit wire fraud for misappropriating public money, Cain, 51, entered a guilty plea to two counts of wire fraud related to a gun purchase. 

As previously reported in PLN, Cain and his ex-wife, Tonia Bandy-Cain, who worked in the prison’s business office, were accused of using $152,000 in prison funds to make personal purchases on state credit cards. [See: PLN, May 2018, p.44; Jan. 2018, p.42]. The items they bought, ranging from flat screen TVs to toilet paper, were discovered at the couple’s home during a 2016 raid, according to testimony from Nicole Compton, an investigator with the Louisiana Office of Inspector General. The Cains also purchased construction materials to quietly build a new house on prison property.

“This is a case about the abuse of power and the violation of trust,” said Luke Walker, an Assistant U.S. Attorney for the Western District of ...

End of Gubernatorial Terms Bring Pardons, Commutations

by David M. Reutter

Following the 2018 elections, outgoing governors in at least 10 states and others who remained in office resolved some outstanding clemency applications by issuing pardons and commutations.

In January 2019, then-Illinois Governor Bruce Rauner – who lost his 2018 re-election bid to J.B. Pritzker – granted 30 clemency requests on his final full day in office. Of those clemencies, 15 went to Cook County prisoners, including two commutations for convicted murderers. 

A pair of life sentences imposed on Oscar Parham for a double murder committed in 1988 during a botched drug deal were commuted to a 70-year term by Rauner. The governor also ordered the 58-year and 17-year sentences imposed on Jonathan Morgan for 1995 murder and second-degree murder convictions to run concurrently rather than consecutively. Other commutations were granted to two men convicted in separate armed robbery cases.

Outgoing Tennessee Governor Bill Haslam, who was term-limited, granted six commutations, 15 pardons and one exoneration before he left office. Most noteworthy was a commutation granted to Cyntoia Brown, 30. She had been convicted of the first-degree murder and aggravated robbery of Johnny Allen, who took Brown to his home when she was working as a ...

Michigan: $40,000 Settlement for Parole Violation Sanctions Absent Due Process

by David M. Reutter

A $40,000 settlement was reached in a lawsuit alleging the Michigan Department of Corrections (MDOC) deprived a parolee of his liberty without due process or an opportunity to properly waive his rights.

In his pro se complaint, Scott Andrew Witzke alleged that MDOC officials arrested him twice for parole violations, and that parole official Ebony M. Pullins-Govantes imposed sanctions for those violations. He cited “the sheer arrogance” of the MDOC in failing to provide due process protections.

Witzke was paroled on May 26, 2016, and received a violation around three months later for “residing with a known felon.” He was directed by Parole/Probation Agent Alex J. Smith to relocate to Better Days Aftercare and pay $125 a month of his SNAP (Supplemental Nutrition Assistance Program) benefits to Better Days, which would constitute a violation of federal law that prohibits assigning SNAP benefits to third parties. Witzke did not comply because his parole order had not been amended.

As a result, he was arrested on September 28, 2016 when he reported to Smith’s office. He waived his right to a preliminary hearing, but the waiver form said he had “the right to a full revocation hearing before ...

Mississippi Prison Industry Program Faltering, CEO Fired

by David M. Reutter

The Mississippi Prison Industries Corporation (MPIC), a nonprofit “quasi-state agency,” is suffering financial losses and its future viability was questioned in a report by the state’s Joint Legislative Committee on Performance Evaluation Expenditure Review (PEER).

“The time has come for MPIC and the Legislature to consider seriously whether the state’s prison industries program has a future and, if so, what changes can be made operationally and legislatively to ensure that the program has a positive outcome,” stated the PEER report, released in May 2018.

MPIC was created in 1990, purportedly to provide prisoners with job training and realistic work experiences to prepare them to successfully integrate back into society upon their release. That vision, however, was not apparent when state Rep. Jerry Turner toured MPIC’s facilities.

“It seems to me they’ve just been more interested in being a money machine than in rehabilitating prisoners,” he said. During his tours, several prisoners shared what sounded like rehearsed comments, Rep. Turner added. 

The PEER report found several elements were missing from a program that touts itself as a vehicle of rehabilitation. It noted MPIC fails to provide employment services when prisoners are released, does not offer certified ...

Ninth Circuit Issues Ruling on Arizona DOC Stipulated Settlement

by David M. Reutter

The Ninth Circuit Court of Appeals held on December 20, 2018 that a stipulated settlement in a conditions of confinement suit against the Arizona Department of Corrections (ADOC) allowed the district court to issue an order requiring the ADOC to develop and implement a plan to increase staffing levels in general. An order to use “all available community health care services” to ensure prisoners receive timely medical care also was found to be within the district court’s authority, but expanding a subclass to include close custody prisoners was not.

As previously reported in PLN, the ADOC agreed to a stipulation that required it to comply with 103 “performance measures” designed to improve the health care system in Arizona state prisons and reduce the harmful effects of solitary confinement. [See: PLN, May 2018, p.28; Feb. 2016, p.56]. Since the settlement, the district court has had to issue several orders to enforce the agreement. Its latest orders were the subject of this appeal.

The first issue addressed by the Ninth Circuit concerned the stipulation’s provision that “the Court shall not have the authority to order Defendants to ... hire a specific number or type of staff ...

California: Denial of Bed During Jail Disturbances Not a Constitutional Violation

by David M. Reutter

On January 11, 2019, the Ninth Circuit Court of Appeals affirmed a grant of summary judgment to the defendants in a civil rights action alleging a pretrial detainee was denied a bed during his three-and-a-half-day stay at the Los Angeles County Inmate Reception Center (IRC).

Maurice Olivier was rearrested on July 12, 2006 after being erroneously released five days earlier. Upon his arrival at IRC, it was determined that his medical needs required him to be housed at the Men’s Central Jail (MCJ). While Olivier was being processed at IRC, prisoners in Los Angeles County’s jail system “repeatedly divided themselves along racial lines and fought.” The violence persisted for about three days and caused lockdowns at MCJ and other facilities, delaying intake processing.

Olivier testified that he was placed in a cell with benches that provided “inadequate space to accommodate the number of detainees at IRC.” He was forced to sleep on the floor and was not provided (nor did he request) any type of mattress or bedding over his three-and-a-half days at the jail. After the lockdowns began on July 13, 2006, the first transfers to other jails started around 2:00 a.m. on July 16. ...

Fourth Circuit Reverses Dismissal of South Carolina Prisoner’s Suit Over Safekeeper Status

by David M. Reutter

The Fourth Circuit Court of Appeals reversed a grant of summary judgment to officials who allegedly denied a pretrial detainee substantive and procedural due process when placing him in safekeeper status.

Dustin Robert Williamson, who was 20 at the time, was being held at South Carolina’s Barnwell County jail awaiting trial on November 22, 2013 when he wrote a letter to Sheriff Ed Carroll that “ranted against several individuals, confessed to murder, and proclaimed the innocence of another man. It also threatened violence against ten law enforcement officers and Judge Early.” During an interview, Williamson reportedly became “combative,” repeated his threats and struck a guard.

Jail officials decided “that Mr. Williamson needed to be placed in ‘safekeeper’ status” in the custody of the South Carolina Department of Corrections (SCDC). The safekeeper program, established by statute, requires the governor’s approval. To qualify, it must be shown that a pretrial detainee: “(1) is a high escape risk (2) exhibits extremely violent and uncontrollable behavior and/or (3) must be removed from the county facility.” Williamson was approved for safekeeper status by then-Governor Nikki Haley, and placed into SCDC’s custody on November 25, 2013.

For the next three-and-a-half years ...

Washington State Prisoner Properly Denied Visitation with Daughters

by David M. Reutter

In an unpublished opinion, the Washington Court of Appeals held on December 18, 2018 that a prisoner was properly denied visitation with his daughters, who were victims of his crimes.

John M. Pino pleaded guilty in 2009 to three counts of first-degree child molestation. His 150-month-to-life sentence included provisions that barred him from contacting his three minor daughters, who also were covered by three Sexual Assault Protection Orders (SAPOs) that prohibited all contact.

In 2016, the SAPOs were amended to allow visitation while Pino was incarcerated.

The daughters, now adults, sought permission to visit their father. Officials with the Washington Department of Corrections (DOC) denied their applications and appeals related to the denials.

Pino filed a personal restraint petition, alleging the denial of visitation with his daughters was a violation of due process, as well as arbitrary and capricious. The appellate court began its review by rejecting the DOC’s contention that 42 U.S.C. § 1983 was an adequate remedy to address Pino’s claims, finding that “a § 1983 action would not address any violation of Pino’s rights under the Washington Constitution.”

Moving to the due process claim, the Court of Appeals held that “Pino does not ...

Third Circuit: Female Jail Guard Loses Discrimination, Wrongful Termination Case

by David M. Reutter

On December 31, 2018, in an unpublished ruling, the Third Circuit Court of Appeals upheld a summary judgment order in a lawsuit that alleged employment discrimination. The appellate court found that officials at Pennsylvania’s Franklin County Jail (FCJ) had properly terminated the plaintiff, a female guard, after a prisoner accused her of inappropriate conduct.

Lisa Hatch worked at FCJ from 2008 until she was fired in 2014. While there was “an extensive factual background with respect to Hatch’s employment history at FCJ, particularly in regard to alleged instances of improper conduct,” the Third Circuit focused only on the disciplinary incident that led to her termination.

Jail prisoner Karl Rogers reported on February 17, 2014 that Hatch made personal and sexual comments to him, that she was on “psycho meds for her nerves,” and that she complained about her job and other staff members. His complaints led to an investigation by FCJ’s Prison Rape Elimination Act Investigation Team. Pursuant to that investigation, Hatch was asked to prepare an incident report describing her interactions with Rogers. In interviews, she substantiated some of his claims. As she was writing the report, Hatch requested and was granted leave ...