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Articles by Derek Gilna

Williams & Connolly, HRDC Win Censorship Case Against Virginia Regional Jail, $210,000 in Attorney Fees

PLN won the right to deliver its materials to prisoners, plus monetary damages, and on August 24, 2020 was awarded substantial attorney fees. HRDC sued after jail authorities blocked the delivery of prisoner books, educational material, and all magazines, including PLN’s magazine and prisoner support materials.

 In its August order, the judge noted, “In this suit..., I previously granted summary judgment for the plaintiff on its First Amendment claim against the jail authority and on its due process claim against both defendants.”

“In summary,” the court continued, “I held that the Jail Authority had violated HRDC’s First Amendment rights by (1) prohibiting inmates from receiving books except those preapproved by the Jail Authority; and (2) prohibiting inmates from receiving any magazines. I further held that the Jail Authority and Superintendent Stephen Clear had violated HRDC’s due process rights under the Fourteenth Amendment by rejecting or confiscating HRDC’s mailings to prisoners ...

Supreme Court Affirms Lower-Court Dismissal of Colorado Prisoner In Forma Pauperis Actions

In the case of Lomax v. Ortiz-Marquez, et al., the Supreme Court of the United States (SCOTUS) in a 9-0 decision on June 8, 2020, affirmed the Tenth Circuit opinion dismissal of Arthur Lomax’ lawsuit as barred under what has been termed the “three-strikes” rule, rejecting his argument that dismissals that were “without prejudice” to refiling did not count as “strikes.”

Justice Elena Kagan, writing for the high court, noted, “Petitioner Arthur Lomax is an inmate in a Colorado prison. He filed this suit against respondent prison officials to challenge his expulsion from the facility’s sex-offender treatment program. As is common in prison litigation, he also moved for IFP status to allow his suit to go forward before he pays the $400 filing fee.”

Lomax argued that Section 1915(g), which defines the “three-strikes” rule, did not bar his free filing as at least two of his three previous lawsuits were dismissed “without prejudice.” ...

Medical Director of California Prison System Removed After Dubious Transfers Spike COVID-19 Counts

As a result, Tharratt was relieved of his duties by Governor Gavin Newsom on July 6.

Tharratt approved a transfer in May of 121 prisoners from the California Institution for Men in Chino, where more than 900 prisoners were infected, to multiple institutions, including San Quentin, where more than one-third had tested positive, and three died during the July Fourth weekend. California state prisons have been under the supervision of a federal court-appointed receiver for more than a decade, and the same receiver who had appointed Tharratt in 2010 was the one who replaced him.

Newsom was unhappy with the unusual prisoner movement. “They should not have been transferred,” he said. California Correctional Health Care Services agreed, stating that “mass movement of high-risk inmates between institutions without outbreaks is ill-advised and potentially dangerous (and) carries significant risk of spreading transmission of the disease between institutions.”

That opinion ...

IRS Blocks Prisoners from CARES Stimulus Checks

The various laws merely state that anyone filing a federal income return in either 2018 or 2019, or receiving Social Security payments, is entitled to a $1,200  stimulus check.

In some instances, the IRS also is asking various state departments of corrections to not deliver these checks to prisoners, and is also seeking to “claw back” funds from checks already cashed, citing regulations that prevent the incarcerated from receiving federal Social Security payments.

However, the Social Security regulations clearly do not apply to these checks, and no new rules have gone into effect limiting the scope of the payments. The IRS has issued an “advisory” on its website, which lacks the force of law.

According to IRS spokesman Eric Smith, “I can’t give you the legal basis. All I can tell you is this is the language the Treasury and ourselves have been using. It’s just ...

Sixth Circuit Vacates Preliminary Injunction Regarding Elkton Prisoner Class Action

On June 9, 2020, the federal Sixth Circuit Court of Appeals, in a split decision, vacated a preliminary injunction issued by a district court that directed the Bureau of Prisons (BOP) to determine which prisoners at Elkton Federal Correctional Institution Elkton were eligible for transfer or release because of a serious COVID-19 outbreak at that facility in Lisbon, Ohio.

Although the appeals court agreed that the district court had the authority to consider the matter under 28 U.S.C. 2241, and the complaint was not foreclosed by the Prison Litigation Reform Act, it agreed that the BOP had responded “reasonably” to the outbreak and that its actions did not give rise to an Eighth Amendment claim for “deliberate indifference.”

As noted in the June 2020 PLN, prisoners had won initial class certification after they argued that there was a “significant level of infection” of the virus at Elkton.

Attorney General William Barr directed federal BOP Director Michael Carvajal on April 3, 2020 to “move with dispatch” to save vulnerable prisoners, using “appropriate transfers to home confinement.”

Another similar lawsuit filed against the BOP regarding the infectious disease at the federal prison in Danbury, Connecticut, which did not ...

New York District Court Judge Denies Preliminary Injunction Against MCC Brooklyn

by Derek Gilna

Federal District Court Judge Rachel P. Kovner on June 9, 2020, denied a “preliminary injunction that would release all MDC inmates whose age or medical condition places them at heightened risk from the virus and would manage almost every aspect of the facility’s COVID-19 response,” according to her opinion.

The judge noted the “high bar” that had to be met to obtain such sweeping relief, and she refused to find that the response of Bureau of Prisons (BOP) officials at the Brooklyn Metropolitan Detention Center (MDC) constituted “deliberate indifference” under the Eighth Amendment.

The judge noted that of the four original plaintiffs, two had already been granted compassionate release by their sentencing judges, and said that evidence at the preliminary hearing had revealed “several deficiencies in the MDC’s implementation of Centers for Disease Control and Prevention (CDC) guidelines that both parties have treated as authoritative. Those shortcomings merit a swift response from MDC officials — the institutional actors charged in the first instance with ensuring that their facilities are managed in accordance with appropriate standards of care.”

However, the court went on to say, “the facility’s aggressive response to a public health emergency with no preexisting playbook ...

COVID-19 Cases Soar at Federal Prisons in California; Half at Lompoc Have the Coronavirus

As of May 12, 2020, the number of COVID-19 infections had exploded at a trio of federal prisons in southern California, placing one at the top of all 142 facilities operated by the federal Bureau of Prisons (BOP).

Federal Correctional Institution (FCI) Lompoc, located in Santa Barbara County, holds 1,162 low-security prisoners, of whom 911 had tested positive for the novel coronavirus that causes the disease. That was the highest number of cases in any BOP prison. Another 16 positive cases have also been reported among prison staff. So far just 25 prisoners and 3 staff members had developed symptoms and recovered. None had died.

But at the adjacent U.S. Penitentiary (USP) Lompoc, there had been two prisoner deaths. The medium-security facility holds 1,044 prisoners, of which 114 had tested positive for coronavirus, along with 22 staff members.

The virus had also hit FCI Terminal Island in San Pedro in Los Angeles County. Of the 1,042 low-security prisoners there, 702 had tested positive for the virus, along with 15 staff members. There have been seven deaths, all among prisoners.

Los Angeles County Public Health Director Barbara Ferrer, whose staff began testing for the virus at FCI Terminal ...

Prison Officials Limit Prisoner Communications During COVID-19 Crisis

Prisoners struggling to deal with the COVID-19 pandemic — often without masks, sufficient cleaning supplies or the ability to social distance — are crying for help to the outside world by any means possible. Some prison authorities have responded by cutting off their access to phones and email.

At the San Diego County Jail, prisoners held up a homemade sign that said, “We Don’t Deserve 2 Die,” during a prisoner’s video chat. Three of those prisoners were sent to solitary confinement shortly thereafter.

In the Pine Prairie, Louisiana ICE detention center, contact between prisoners and members of the media via video chat included inmate complaints about the lack of protective equipment and the possibility of conflict between prisoners and staff. The result? Future video contacts were canceled by the institution.

On the federal level, those suspected of being infected with COVID-19 are often quarantined in special housing or solitary, during which time they are often without access to anything but irregularly delivered mail from the U.S. Post Office.

At the Bureau of Prisons (BOP), California facilities at Terminal Island and Lompoc, where over half of the prisoners tested positive when the Los Angeles County Board of Health ...

New ACLU Study Says COVID-19 Deaths in Prison Will Soar Without More Releases, Fewer Arrests

An April 22, 2020 report by the American Civil Liberties Union, with the collaboration of researchers from Washington State University, the University of Pennsylvania, and the University of Tennessee, shows that COVID-19 deaths in jails, prisons and the communities where they are located will skyrocket unless there are fewer arrests and more releases of more low-level offenders.

According to the ACLU, “Models projecting total U.S. fatalities to be under 100,000 may be underestimating deaths by almost another 100,000 if we continue to operate jails as usual.”

On May 28, 2020, the total U.S. death toll stood at more than 102,000, lower than some original projections, apparently brought about by extensive lock-downs and stay-at-home orders in many states and municipalities. People have been cautioned to “social-distance,” wear masks and avoid unnecessary travel to avoid spreading the virus. However, those who run America’s over-crowded jails and prisons have not gotten the message.

This potential disaster has come about for a variety of reasons, first of which is that the United States continues to lock up individuals at the world’s highest rate. With 5% of the world’s population, it detains approximately 20% of the globe’s prisoners.

These prisoners are still ...

Sandoval County, New Mexico Settles Public Records Lawsuit with Human Rights Defense Center

Sandoval County, New Mexico on February 24, 2020, settled a public records lawsuit with the Human Rights Defense Center (HRDC), the parent corporation of Prison Legal News, which alleged that the county had refused to provide records that were required to be released under the state’s Public Records Act. As part of the settlement, the county provided the requested records and paid HRDC’s $52,500 in legal fees, but was not required to admit wrongdoing.

HRDC had sought records as part of its ongoing mission to investigate and publicize payouts made by the county to settle lawsuits brought against local law enforcement authorities accused of wrongdoing. Although some records had initially been produced, HRDC alleged that $3,784,704.70 had been paid out from public funds without proper disclosure of the details, as required under state law.

New Mexico’s Inspection of Public Records Act provides that it is the “public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees .... (and) that to provide persons with such information is an essential function of a representative government.” 

Nonetheless, despite numerous requests, ...