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Articles by David Reutter

Court Continues Oversight and Orders Corrections in Georgia Jail

by David M. Reutter


"The Court is totally out of patience with the assurances and promises that compliance will be achieved" with the Final Settlement Agreement signed on January 24, 2000. So said Judge Shoeb, U.S. District Court Northern District of Georgia, when ordering Fulton County, Georgia, to ease overcrowding at its jail and provide adequate medical care to its pre-trial detainees. This case was brought by HIV detainees at the jail, and PLN has previously reported this litigation. See: PLN September 2000.


Despite two years elapsing since the settlement agreement was approved, the Court found the defendants were "far from compliance" in several areas. First, the Court found the Fulton County Jail exceeded its physical capacity by a significant number. The jail was originally designed for 1,332 prisoners, but before construction was completed double bunks were installed to increase capacity to 2,250. Since the settlement agreement, the jail's population hit a high of 2,544 and a low of 2,266. The significant factor in overcrowding is the detention of persons held for misdemeanor offenses.


The latest report showed 208 persons held upon misdemeanors who were not formally charged. These detainees await a formal decision ...

Florida Work Release Prisoners Ripped Off by Private Transport Company

Florida Work Release Prisoners Ripped Off
by Private Transport Company

by David M. Reutter


In response to a new law, effective Oc-tober 1, 2003, that prohibited state prisoners from driving state vehicles, the Florida Department of Corrections (FDOC) hurriedly entered into a no bid contract with Sunshine Transportation to transport its work release prisoners to and from their employment.


FDOC's work release programs allow prisoners to work up to twelve months in the community before they are released. While in the program, prisoners live in minimum security dormitories in the community. In turn, they contribute 45% of their income to pay the FDOC for their housing costs and ten percent goes to a personal savings account to be given to them upon their release. The transportation costs charged by Sunshine Transportation were automatically deducted from whatever wages were left.


Sunshine Transportation refused to take the contract unless it was guaranteed a minimum number of prisoner passengers. The company was chosen because it was the only company that agreed to provide van service statewide. To facilitate the contract, FDOC officials sent letters to all local work release programs "encouraging" them to sign the agreement with Sunshine Transportation. Local officials then ...

Private Settlement Agreement Prohibits Award of Attorney Fees and Costs

Private Settlement Agreement Prohibits Award
of Attorney Fees and Costs

by David M. Reutter


In a case of great importance to lawyers litigating prisoner actions where private settlement agreements are a consideration, the Eighth Circuit Court of Appeals has reversed a $379,000 award for attorney fees and costs granted after a settlement agreement was reached in litigation brought by a class of juveniles at the South Dakota State Training School at Plankinton. PLN reported the district court's order awarding fees and costs. See: Christina A.v. Bloomberg, 167 F.Supp.2d 1094 (D.S.D. 2001). [PLN January 2003].


The defendants appealed the finding that the juveniles were a prevailing party because (1) the settlement agreement changed the relationship between the parties and (2) the court retained jurisdiction in its dismissal order to enforce the agreement. The Court found the award appropriate under Buckhannon Board & Care Home, Inc., v. West Virginia Dept. of Health and Human Resources, 121 S.Ct. 1835 (2001).


Buckhannon held the "catalyst theory" of prevailing party status is no longer appropriate for the award of attorney fees because "[I]t allows an award where there is no judicially sanctioned change in the relationship of ...

Local Rule Cannot Justify Summary Judgment When Factual Dispute Exists

by David M.Reutter


The Ninth Circuit Court of Appeals held the failure to file an opposing pleading, as required by local rule, in response to a motion for summary judgment is not grounds for entry of final judgment against the non-moving party when genuine disputes of material facts exist; additionally, although qualified immunity law changed, previous factual disputes in this case had not.


Andres M. Martinez alleged in his 42 U.S.C. § 1983 action that while at California's Calipatria State Prison excessive force was used against him by guards breaking up a fight in an adjacent cell. The facts are highly disputed by the parties.


Martinez states he and his cellmate placed a bed sheet over their cell opening to keep the noxious pepper spray guards were using out of their cell. When asked by guards to remove the sheet, they advised they would when the gas dissipated. Guards then fired two plastic bullets, one of which struck Martinez in the head, and a taser cartridge into the cell. When guards entered the cell, they pushed Martinez into a seated position, and despite his lack of resistance, tasered him twice in the left arm. Martinez was beat ...

Applicability of FTCA to BOP Causes Circuit Split

Applicability of FTCA to BOP
Causes Circuit Split

by David M. Reutter


Three recent federal circuit court rul-ings exhibit a dispute between the circuits as to whether the Federal Tort Claims Act (FTCA) applies to property claims against the federal Bureau of Prisons (BOP). Each of these cases, filed by federal prisoners claim the BOP is liable for its employee's acts of negligently losing or destroying a prisoner's property under the FTCA.


The FCTA "provides generally the United States shall be liable to the same extent as a private party, `for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employee.'" See: 28 U.S.C. § 1345(h). This broad waiver of sovereign immunity, however, is subject to thirteen exceptions listed in 28 U.S.C. 2680(a)_(n). At issue in the three appellate cases is the construction of the waiver that "shall not apply to&.[a]ny claims arising in respect of the assessment or collection of any tax or customs duty or the detention of any goods or merchandise ...

Tennessee Officials Pay $450,000 to Settle Lawsuit in Detainee's Murder by Guards

Tennessee Officials Pay $450,000 to Settle Lawsuit
in Detainee's Murder by Guards

by David M. Reutter


Wilson County and City of Lebanon, Tennessee, jail officials agreed to pay the widow of Walter Steven Kuntz $450,000 to settle a lawsuit that charged jail guards beat him to death. Following a traffic accident in January 2003, Kuntz was arrested and taken to the Wilson County Jail. Several hours later, he was found in a coma and later died at a local hospital. State Medical Examiner Bruce Levy ruled Kuntz's death a homicide, saying Kuntz died of blunt force trauma to the head and torso.


Kuntz's widow, Oletta Lynn Kuntz, filed an $80 million civil rights suit against the county and city. In September 2003, the city and county settled the suit. In early November 2003, Lebanon City officials announced they had settled with Oletta for $50,000. That information was released only after The Tennessean and The Lebanon Democrat filed suit under Tennessee's Public Records Act to have the settlement's details disclosed.


County officials, however, cited a confidentiality agreement between the parties and a current federal and state investigation into Kuntz's death to withhold ...

Ohio Native American Prisoner Granted Injunction to Grow Long Hair

Ohio Native American Prisoner Granted Injunction
to Grow Long Hair

by David M. Reutter


An Ohio federal district court has granted a prisoner at Ohio's Madison Correctional Institute (MCI) a preliminary injunction that allows him to grow his hair in accordance with his religious beliefs. Prisoner Cornelius Wayne Hoevenaar is a Native American of Cherokee ancestry. According to his religious beliefs, his ancestors guide him in life as well as in his religious practices. As such, connecting to his ancestors is a key aspect of his religion. Having long hair is essential to his religious practices because hair is the key to receiving positive energies and connecting to his ancestors through the ceremonies he performs. He believes that his hair is also what connects him to the "Red Road of Life," or the path to spirituality. Prison officials did not contest the sincerity of Hoevenaar's religious beliefs.


Hovenaar alleged MCI's grooming regulations that requires a prisoner hair not to extend over the ears or shirt collar violates his rights under the Religious Land Use and Institutionalized Persons Act and the First Amendment. First, the court analyzed the RLUIPA claim, which holds a government entity that accepts federal ...

Constitutional Amendment Effort Launched to Bar Florida's Prison Privatization

Constitutional Amendment Effort Launched
to Bar Florida's Prison Privatization

by David M. Reutter


The Florida Police Benevolence As-sociation (PBA) has launched a petition drive to enact an amendment to Florida's constitution that would bar privatization of prisons, jails, and offender supervision. The PBA represents over 30,000 law enforcement, corrections, and probation officers.


The PBA launched the drive following Governor Jeb Bush's recent proposal for the state legislature to provide an emergency $65 million to build new prison beds. That proposal included a provision to set aside $75,000 to allow the Correctional Privatization Commission, Florida's private prison oversight group, to take bids to build an 1,800 bed prison in Northwest Florida.


"The PBA went ballistic" when it learned of the provision, said Senator Victor Crist, R-Temple Terrace, one of the bill's co-sponsors. While campaigning for re-election in July 2002, Bush pledged to the PBA that he would not seek more private prisons. That pledge may have been subject to fiscal lobbying. In 2002, private prison companies Wackenhut, Corrections Corporation of America, and Cornell Companies, Inc., donated $274,000 to Florida candidates and political parties.


Prison privatization has its critics in the Florida legislature ...

Two Killed in Failed Florida Prison Escape

by David M. Reutter

A bungled escape attempt at Florida's Charlotte Correctional Institution (CCI) on June 11, 2003, resulted in the first death of a female guard. Darla Lathram, 38, began working at CCI in June 2002. She was beat with a sledgehammer and pronounced dead at the scene. Her death is the first of a Florida guard since 1987, when two men attempted to free a prisoner being transported from Glades Correctional Institution to an outside medical facility.


The escape attempt occurred around 10 p.m. as Lathram was supervising five prisoners working a construction squad remodeling a dormitory due for inspection the next day. Dormitories at CCI have been undergoing construction to accommodate the housing of prisoners placed on close management, Florida's version of long-term segregation.


The Florida Department of Law Enforcement (FDLE) believes only three of the five prisoners were involved in the escape attempt. Involved in the escape attempt were: Dwight Eaglin, 27, Stephen Smith, 42,and Michael Jones, 46. All are serving life sentences. Officials believe that after these co-conspirators began beating Lathram, prisoners Charles Fuston, 36, and John Beaston, 37, tried to help her. In return, they were severely beaten by the ...

Second Circuit Holds Confidential Informant's Reliability Alone Insufficient to Support Hearsay or Conclusionary Statements

Second Circuit Holds Confidential Informant's Reliability Alone
Insufficient to Support Hearsay or Conclusionary Statements

By David M. Reutter

The Second Circuit Court of Appeals has held that prison officials, in assessing the reliability of evidence at a prisoner's disciplinary hearing, must reference the totality of the circumstances and that an informant's record for reliability cannot, by itself, establish the reliability of bald conclusions or third-party hearsay. The court, however, held this issue was not clearly established and prison officials were entitled to qualified immunity.

This 42 U.S.C. § 1983 action was filed by New York prisoner Rubin Sira, alleging events that transpired at Green Haven Correctional Facility (GHCF) in 2000. That complaint alleged prison officials violated Sira's due process rights by finding him guilty (1) based upon insufficient evidence, (2) without providing him adequate notice of the charges, (3) without affording access to confidential evidence relevant to his defense, (4) without assessing the reliability of various confidential sources of incriminating information, and (5) without disclosing the confidential documentary evidence against him. Prison officials denied the allegations, moving for judgment on the pleadings based on qualified immunity. The Southern District of New York denied the motion ...

 

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