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Articles by Mark Wilson

Oregon Court Holds Prison Litigation Reform Act Exhaustion Tolls Statute of Limitations

Anthony Sam White is a paraplegic prisoner of the Oregon Department of Corrections (ODOC). He was denied mobility aids and adequate housing while confined in the Disciplinary Segregation Unit (DSU) at the Two Rivers Correctional Institution (TRCI) between February and April 2017.

After exhausting administrative remedies, as required by 42 USC § l 997e(a) of the PLRA, White brought federal suit on July 18, 2019. He alleged that prison officials violated the Eighth Amendment and the Americans with Disabilities Act (ADA) when they denied him mobility aids and adequate housing.

Defendants moved to dismiss, arguing that White’s suit was untimely because it was filed outside the applicable two-year statute of limitations period.

The district court denied the motion. Quoting Soto v. Sweetman, 882 F3d 865, 872 (9th Cir. 2018), the court noted that this “circuit has, with other circuits, adopted a mandatory tolling provision for claims subject to the Prison Litigation Reform Act.” See also Brown v. Valoff, 422 F3d 926, 942-43 (9th Cir. 2005). ...

NaphCare, Oregon Jail’s Private Healthcare Provider, Required to Disclose Records in Detox Death Suit

by Mark Wilson

An Oregon federal court in January 2020 compelled NaphCare, Inc., the private medical care provider for the Washington County Jail (WCJ) in Hillsboro, to disclose lawsuits and financial records in a wrongful death action stemming from the June 2017 detox death of a detainee.

County officials terminated a jail health-care contract begun in 1998 with Corizon Health, Inc., following a $10 million damage award against the county and the Tennessee-based firm for the 2014 withdrawal-related death of a jail detainee. [PLN, May 2019, p.35]. Since then, the contract has been awarded to Alabama-based NaphCare, Inc., a private, family-owned company providing health care to more than 80,000 prisoners in 53 city and county jails and federal prisons throughout the nation.

On June 25, 2017, Dale Thomsen was booked into the WCJ, and NaphCare registered nurse Kathy Dement conducted an intake medical screening. She did not identify any signs of alcohol abuse or possible detox, court records show. But that evening Tammy Thamsen, wife of the 58-year-old, called the jail to warn that her husband had previously suffered a brain injury and currently suffered from a seizure disorder and alcoholism.

Tammy Thomsen made additional attempts to warn ...

Ex Post Facto Oregon Parole Postponement Claim Not Cognizable in §2254 Proceeding

by Mark Wilson

On October 31, 2019, an Oregon federal court held that a claim that extended parole postponement pursuant to the retroactive application of a new law violates the ex post facto clause and is not cognizable in a 28 USC § 2254 federal habeas corpus proceeding. Such a claim may be brought instead in a federal civil rights action pursuant to 42 USC § 1983.

Oregon prisoner Shayne Martin Jacobs was convicted of two counts of murder in 1981. The Oregon Board of Parole and Post-Prison Supervision ultimately established a July 7, 2009 release date for Jacobs.

During a 2008 hearing, the Board applied the law in effect in 1981 to postpone Jacobs’ release to the maximum possible, two-years, upon finding that he suffered from a present severe emotional disturbance that rendered him a danger to the health or safety of the community. This postponed his release to July 7, 2011.

During a 2010 hearing, the Board again found that Jacobs suffered from a present severe emotional disturbance, rendering him a danger to the community. This time, however, the Board retrospectively applied a 2009 law that purported to authorize the Board to postpone release up to ten years. ...

Oregon Federal Court: 8th and 14th Amendments Mandate Miller Hearing

An Oregon federal court held that a sentence that prohibits a juvenile offender’s possible release until he is 88 years old violates the Eighth Amendment and the Fourteenth Amendment’s Due Process Clause because it denies a “meaningful opportunity” for release.

The Eighth Amendment requires a state to hold a hearing for a juvenile serving a life sentence at which the person’s youth at the time of the offense must be treated as a mitigating factor and his rehabilitation considered in light of the transient immaturity and impulsivity at the time of the offense. The hearing must be held early enough in a person’s lifetime that it affords the juvenile a chance for a meaningful life outside of prison, not geriatric release. (See: Miller v. Alabama, 567 U.S. 460 (2012); and Montgomery v. Louisiana, 577 U.S._, 136 S.Ct. 718 (2016). This hearing is commonly known as a “Miller hearing.”

When Oregon prisoner Sterling Ray Cunio was 16 years old, he and another teenager committed a double homicide. Cunio was convicted of two counts of aggravated murder, two counts of kidnapping and two counts of robbery. He was sentenced to two consecutive life sentences and a consecutive ...

Sixth Circuit Upholds Summary Judgment Against 14-Year-Old Mentally Ill Pretrial Detainee, Raped by Guard in Solitary

 by David Wilson

 The United States Court of Appeals for the Sixth Circuit affirmed the dismissal of a 14-year-old Tennessee detainee’s solitary confinement, mental health care and sexual abuse claims.

J.H. suffers from Pediatric Autoimmune Neuropsychiatric Disorder Associated with Streptococcal Infections (PANDAS). This disease manifests in psychiatric symptoms, including abrupt ...

Third Circuit Upholds Federal False Liens Conviction and 48-Month Sentence

by Mark Wilson

 The United States Court of Appeals for the Third Circuit affirmed a Pennsylvania man’s federal false liens convictions. The court concluded that 18 USC § 1521 is not unconstitutionally vague and overbroad, and the evidence was sufficient to convict him.

Clarence Hoffert is serving a 15- to ...

Oregon Lawmakers Prohibit Prison and Jail Telephone Kickbacks

by Mark Wilson

This isn’t just an issue of economics,” said Oregon Senator Sara Gelser, the chief sponsor of a bill prohibiting jail and prison telephone contract kickbacks that passed nearly unanimously. “This is really about the humanity of the people that are in our prisons and the ability of ...

Oregon Prison Guard, Guilty of Pocketing $10,811 in Falsified Overtime, Sues for Racism

by Mark Wilson

An Oregon prison guard’s 37-year career came to an inglorious end when he was caught stealing $10,881 from the Department of Corrections by falsifying his time cards. After a failed attempt to dismiss the prosecution as being racially motivated, the guard pleaded guilty and paid back his ...

Deaf Oregon Prisoner Awarded $125,000 for Jail’s Failure to Accommodate Disability

by Mark Wilson

On September 25, 2019, a federal jury in Oregon ordered Multnomah County jail officials to pay $125,000 to a deaf man for refusing to accommodate his disability while he was in custody.

David Updike, 52, was born deaf and communicates through American Sign Language (ASL). He never ...

First-Class Mail Insufficient for Mailing Date to be Filing Date in Oregon

by Mark Wilson

The Oregon Court of Appeals held on July 31, 2019 that first-class mail is insufficient to allow a mailing date to serve as the filing date for a notice of appeal.

The timely filing of a notice of appeal is a jurisdictional prerequisite for an appeal under ...