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Articles by David Reutter

Jail’s Failure to Protect Juvenile from Sexual Assault Supports $25,000 Verdict

by David Reutter

The Tenth Circuit Court of Appeals affirmed a $25,000 verdict in a civil rights action alleging the sheriff in Tulsa County, Oklahoma was deliberately indifferent to conditions that resulted in a 17-year-old prisoner being repeatedly sexually assaulted by a guard.

The lawsuit concerned events that occurred ...

Prison Grievance Coordinator’s Responses Rendered Administrative Remedies Unavailable

by David Reutter

The Seventh Circuit Court of Appeals held that an Indiana federal district court erred in dismissing a prisoner’s civil rights action for failure to exhaust administrative remedies. The Court held the record indicated the prisoner was prevented from filing a grievance due to mixed or improper instructions from the grievance coordinator.

Indiana state prisoner Terry Davis filed a 42 U.S.C. § 1983 complaint alleging that on January 5, 2014, guards David Mason and Blake Thrasher punched him repeatedly, put him in a chokehold and placed a plastic bag over his head. He sustained two black eyes, broken teeth and possibly a broken nose.

Upon the district court’s invitation, the defendants moved for summary judgment based on Davis’ failure to exhaust administrative remedies as required by the Prison Litigation Reform Act. The court subsequently granted the motion and Davis appealed.

In a February 6, 2018 ruling, the Seventh Circuit found that in the days following the alleged assault, “Davis tried several times to submit grievances complaining about the incident, but none were processed.” Davis’ first two grievances resulted in his receiving “Return of Grievance” forms, saying they would not be processed because they raised a ...

New Orleans Parish Court System has Unconstitutional Funding Practices

by David M. Reutter

In December 2017, a Louisiana federal district court declared that the Orleans Parish Criminal District Court (OPCDC) had violated the constitutional rights of defendants by jailing them for failure to pay fines and fees without first determining their ability to pay. The federal court further found the parish judges had an inherent conflict of interest in determining whether defendants can pay the fines and fees, which comprise a large portion of the OPCDC’s budget.

The suit was filed on behalf of former criminal defendants who pleaded guilty and were ordered to pay fines and fees as part of their sentence. All were poor and had been arrested for failure to pay. In most cases, they spent several days or weeks in jail before being released, which came only after a payment or promise of payment was made to the court.

The OPCDC funds its court operations and staff payroll from a Judicial Expense Fund; it had annual revenue of $4 million from 2012 through 2015. Around half the revenue came from government entities while the remainder was from bail-bond fees, fines and court-ordered fees.

To collect the fines and fees imposed on defendants, the OPCDC created ...

Privacy Interests Outweigh Public Interest in Disclosure of AUSA Termination Letter

by David Reutter

The District of Columbia Court of Appeals held that privacy interests in not disclosing a 20-year-old proposed termination letter for a previous Assistant U.S. Attorney (AUSA) outweighed the pubic interest under exemption 5 U.S.C. § 552(6)(6).

Howard Bloomgarden, represented by attorney Torrence E.S. Lewis, filed a Freedom of Information Act (FOIA) request with the Department of Justice (DOJ) for disclosure of a termination letter naming the AUSA. He asserted the letter was a public record as the AUSA was a government employee at the time. He also argued it could help him in his criminal appeals because the AUSA had prosecuted him, and it may show severe misconduct and laxness in the DOJ’s disciplinary process.

The district court acknowledged Bloomgarden’s motivation to obtain the letter because it involved his own legal proceedings, but clarified that it must consider the public’s interest, not the individual’s. The court granted summary judgment to the DOJ, holding the AUSA’s privacy interest in not being unduly embarrassed outweighed the public interest in disclosure.

The DOJ released over 3,000 pages of other documents related to the termination letter, but after an in camera review, the court ...

Federal Judge Voids Contract Between Death Row Exoneree and Attorney

by David Reutter

A North Carolina federal district court has voided a contract between death row exoneree Henry McCollum and his lawyer. The court’s unusual move was based on evidence that due to his low IQ, McCollum was vulnerable to manipulation.

As previously reported in PLN, McCollum and his brother, Leon Brown, were released after serving over 30 years for the rape and murder of 11-year-old Sabrina Buie. DNA evidence proved their innocence and revealed the crime was actually committed by Roscoe Artis – someone McCollum had served time with on death row and believed was his friend. [See: PLN, Aug. 2017, p.58].

Cases such as McCollum and Brown’s became magnets for consultants and attorneys hoping to cash in on fees for the ensuing wrongful conviction lawsuits. Shortly after the brothers were released in September 2014, Kimberly Weekes, a consultant in Atlanta, heard about their situation and decided that she and her partner, Deborah Pointer in New York, could put pressure on the governor’s office to grant a pardon.

In January 2015, Weekes and Pointer signed a contract with McCollum and Brown to provide “advocacy and civil rights” services. The agreement included an advance payable to the consultants, plus ...

Georgia Medical Prison Rife with Dysfunction, Abuse and Dilapidated Conditions

by David Reutter

Poor sanitation, asbestos contamination, leaky roofs, inadequate health care, the loss of a top doctor frustrated with it all – those are just some of the problems that have plagued Georgia’s Augusta State Medical Prison (ASMP). Plus incidents of brutality by guards.

“These prisoners are often selected for abuse because they suffer from mental illness and have difficulty reporting assaults or being taken seriously when they do,” a federal civil rights lawsuit filed in August 2017 claims.

Photos of ASMP showing “garbage bags and empty boxes filling portable Dumpsters and spilling onto the floor” – even in a hallway outside the operating room – were obtained by the Atlanta Journal-Constitution in October 2017.

“At times,” the newspaper reported, “the bags almost reached the ceiling.”

Dr. Mary Sherryl Alston, ASMP’s medical director, wrote that the trash drew insects “of all varieties” into the operating room, and that during procedures mosquitoes had to be swatted away. The smell of garbage was noticeable.

“I am incredulous that such a discussion is still needed to address the problem within a facility that provides health care,” Dr. Alston wrote. “Simple solution: stop placing garbage by the OR now ...

Illinois: $4.75 Million Settlement in Jail Seizure Injury Case

by David Reutter

Cook County, Illinois has paid $4.75 million to settle a federal lawsuit alleging it failed to provide doctor-ordered accommodations for a pretrial detainee who suffered seizures.

In October 2014, Michael Joseph Borys was booked into the Cook County Jail on a misdemeanor charge. He was seen ...

Lawsuit, Ballot Initiative Seek to Reform Felon Disenfranchisement in Florida

by David M. Reutter

In 1868, in response to the abolition of slavery following the Civil War (except for prisoners), Florida enshrined in its constitution the permanent disenfranchisement of people convicted of a felony. The deprivation of felons’ voting rights was combined with Black Codes that criminalized offenses state lawmakers believed were mostly committed by blacks, as a means of sending freed slaves to prison and ensuring they could not vote.

While the civil rights movement helped to change racial attitudes, Florida has held strong to its disenfranchisement policy. It is one of only four states, the others being Iowa, Kentucky and Virginia, to require executive clemency to restore voting rights.

“[Felon disenfranchisement] is understood as an issue of law and order, and in Florida that’s the end of the discussion,” said Scott Paine, a political analyst for the Florida League of Cities. “It is not seen in other terms, no matter the merits of other arguments. At the same time, this may be less about the state as a whole than about a particular administration’s perspective.”

Over a four-year period, former Florida Governor Charlie Crist, who earned the nickname “Chain Gang Charlie” as a state senator ...

Michigan Department of Corrections Foregoes Privatized Food Services

by David M. Reutter
After enduring five years of poor service, inadequate staffing and several scandals with its privatized food-service vendors, Michigan has decided to bring its prison services back into government service.
“As the contract with Trinity was approaching its end, we took the opportunity to re-examine our operations,” said Michigan Department of Corrections (MDOC) Director Heidi Washington in a statement. “After discussing options with Trinity, it was determined it was in the best interest of both parties not to renew our agreement, we believe the department’s needs would be better met by returning to state-run food service.”
Since MDOC privatized its food service following a legislature mandate in 2012, it has watched the quality and quantity of food decline while the amount of contraband and other security incidents by privatized staff have increased.
Previous stories in Prison Legal News detailed the problems MDOC incurred after privatizing its kitchens. As we reported, prisoners were served food with maggots and items that were nibbled on by rodents at the order of the first vendor, Aramark. Staffing shortages and staff that brought in drugs or who had sex with prisoners were a regular problem.
It was hoped that changing ...

FRCP Rule 25 Allows for Extension of Time to Substitute Party Upon Death

by David Reutter

The Eleventh Circuit Court of Appeals has reversed a Florida federal district court’s order denying a motion to reopen a case and substitute parties due to the death of the original plaintiff. The district court erred in finding it could not extend the 90-day time period for substitution set forth in Fed.R.Civ.P. 25.

The suit was initially filed in 2016 by Gustavo Adolfo Lizarazo, who was arrested on June 8, 2012. He alleged that while being detained at a jail in Miami-Dade County, multiple officers “repeatedly kicked, struck and punched him in the face and abdomen,” resulting in a fractured right orbital socket and exploded orbital floor.

Lizarazo died on November 17, 2016, and his attorney filed a Joint Motion for Stay of Proceedings due to his death. Lizarazo’s father, Gustavo Antonio Lizarazo, was served by the defendants in anticipation that he would be appointed the personal representative of his son’s estate.

The district court entered an order on December 29, 2016 that granted a 90-day stay; it required Lizarazo’s attorney to file reports every month on the status of the probate proceedings. The court also administratively closed the case and said it ...


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